Loading...
HomeMy WebLinkAboutcoa.lu.ca.420 E Hyman Ave.0074.20140074.2014. ASLU 420 E HYMAN AVE Code Interpretation F v 2737 073 39801 C 0 • 7Lj THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER PARCEL ID NUMBERS PROJECT ADDRESS PLANNER CASE DESCRIPTION REPRESENTATIVE DATE OF FINAL ACTION 0074.2014.ASLU 2737-073-39-801 420 E HYMAN AVE JUSTIN BARKER LAND USE INTERPRETATION SARAH OATES 11/17/2014 CLOSED BY ROBERT GREGOR ON: 05/22/2015 0 Z -737-67 3 —3`fW Permits to 00?44- -2014- • RSUc File Edit Record Navigate Form Reports Format Tab Help - _ i® :Sro i Plain Custom Fields Routing Status Fee Summary Actions Routing History _ L? a Permit type pen Laid Use Permit = 0074 2014.ASLU c n Address 1420 E HYIV*1 AVE j Apt/Sutte j o City JASPEN State CO Zip '516111920 x Permit Information E Master permit, Routing queue Applied Project I Status,: Approved 0 Description PLICATION FOR RECORDATION DOCUMENTS - SUBDIVISION MIKE Issued �. m ICONDOMINIUM - PLMNING DEPOSIT 51300.0015325-00 REPRESENTS �TTORNEYS FEES,' TOTAL FEES COLLECTED AT SUMITTAL 51625.00 Closed'Fnal Submitted ;SARAN DATES 9201700 ( Clock Days Expires 09'14'2015 Mer Last name 'CI,1 LL First name JOHN MARllfd 230S- MILL ST i2LID FLOOR Phone Address ' N CA 51611 Applicant G Owner is applicant? 1 Contractor is applicant? I _ Last name IOATES K14EZEVICH S GAR[ First namE i 533 E HOPKHS AVE None Ql Cust 251 1 ASPEN CO 51611 I �!ii'�fFSG Lender Last name_ First name Phone I! Adk-t- • i i f c49-- 304-0 I,� <41 AspenGoldS jserrer. angelas Edit 1 of 1 Q� ¢�- 3 ZS o 0 RECEPTION#: 615594, 11/ 014 at 09:53:20 AM, 1 of 14, R $76.00 Doc Code SUB AGREE Janice K. Vos Caudill, Pitkin County, CO SUBDIVISION AGREEMENT FOR DUVIKE CONDOMINIUM SUBDIVISION THIS SUBDIVISION AGREEMENT ("Subdivision Agreement") is made and entered into this � day of , 2014, by and between THE CITY OF ASPEN, COLORADO, a municipal corporation (hereinafter referred to as "City"), and CM LLC, a Colorado limited liability company (hereinafter referred to as "Owner"), WITNESSETH: WHEREAS, Owner has submitted to the City for approval for the demolition and redevelopment of a parcel of land situated within the City of Aspen, Colorado and more particularly described as Lot O, Block 88, City and Townsite of Aspen, Colorado, said property being hereafter designated and known as the "Duvike Condominium Subdivision" which was previously subdivided under the Colorado Condominium Act as the Duvike Condominium, a condominium; and WHEREAS, City has fully considered the land use application, the proposed development and improvement of the lands therein, and the effects of the proposed development and improvement of said lands on adjoining or neighboring properties and property owners; and WHEREAS, under the provisions of Ordinance No. 27 (Series of 2013) ("Ordinance 27") adopted by the Aspen City Council on September 9, 2013, the City has imposed certain conditions and requirements in connection with its approval of the Duvike Condominium Subdivision and its execution and recordation of the Subdivision Plat, such matters being necessary to protect, promote and enhance the public welfare; and WHEREAS, Owner is willing to acknowledge, accept, abide by and faithfully perform the conditions and requirements imposed by the City in approving the redevelopment of the Duvike Condominium Subdivision; and NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, the approval, execution and acceptance of the Subdivision Agreement and eventual execution and acceptance of the Condominium Map/Subdivision Plat for Duvike Condominium Subdivision, and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE I ZONING AND REGULATORY APPROVALS 1 • 0 1.1 Pursuant to Resolution No. 17 (Series of 2012) ("Resolution I7") adopted July 25, 2012, and Resolution No. 28 (Series of 2012) ("Resolution 28"), amending Resolution 17, adopted November 14, 2012, the City of Aspen Historic Preservation Commission ("HPC") granted Major Development Approval (Conceptual), Commercial Design (Conceptual), Demolition and a Variance from Trash/Utility/Recycle Service Area requirements with conditions. The HPC found said property met criteria pursuant to § 26.415.080, Demolition of a designated historic properties due to life, health and safety concerns, and lack of contribution to the historic district in which the structure is located. Additionally, the HPC found a reduction of the trash/utility/service area for said property was appropriate as the proposed trash/utility/service area was adequate. 1.2 Pursuant to Resolution No. 16 (Series of 2014) ("Resolution 16"), adopted on May 28, 2014, the HPC granted HPC Major Development Approval (Final) and Commercial Design (Final) pursuant to § 26.412.040, of the Municipal Code. 1.3 Pursuant to Ordinance 27, adopted on September 9, 2013 and recorded as Reception No. 603649, the Aspen City Council approved the Duvike Condominium Subdivision, with conditions, for the development of one (1) free market residential unit, three (3) Category 4 affordable housing units and 786 square feet of new commercial space, approved the re-condominiumization of the Project to define the separate ownerships therein by the recording of a condominium map in compliance with the current (at the time of condominium map submission) requirements of the City of Aspen Community Development Engineer. Said condominium map and associated document, which shall also act as the subdivision plat, must be filed prior to the issuance of a Certificate of Occupancy. In the event of any inconsistency between the provisions of the above -described Ordinances and/or Resolutions and the provisions of this Subdivision Agreement, the provisions of the Ordinances and/or Resolutions shall control. ARTICLE II DEVELOPMENT REQUIREMENTS AND RESTRICTIONS 2.1 Development Program. The building, as redeveloped, will be a mixed - use building containing an as yet unspecified number of commercial spaces with an additional 786 square feet of commercial net leasable space (the "Commercial Units"), one (1) free market dwelling units (the "Free Market Unit") and three (3) affordable housing units (the "AH Units") as is more fully specified in Ordinance 27 ("Project"). The existing building shall be demolished and the Project shall be subject to the dimensional requirements of the Land Use Code in effect on April 4, 2012 (e.g. date of initial application), attached hereto as Exhibit "A" and incorporated herein be reference. Compliance with these requirements will be verified by the City of Aspen Zoning Officer at the time of building permit submittal. 2.2 Subdivision Plat/Condominium Map. Once construction is nearly 2 • 0 complete but prior to an issuance of Certificate of Occupancy, the Owner shall file a condominium plat and associated documents for review and approval by the City Engineer and Community Development Director as outlined in Land Use Code § 26.480.090, Condominiumzation. The condominium plat shall act as the subdivision plat. A separate subdivision plat is not required. 2.3 Dimensions, Zoning and Building Requirements. All dimensions shall meet the requirements of the Land Use Code in effect on April 4, 2012 (date of initial application), attached hereto as Exhibit "A" and incorporated herein by reference. The approved floor plans are attached hereto as Exhibit "B" and incorporated herein by reference. Minor changes from these are permitted at building permit. Areas labeled as "roof' or "green roof' are not permitted for use as a deck. Final floor plans shall meet adopted Building Code requirements for accessibility for all units. The project is subject to all conditions included in HPC Resolution Nos. 17 and 28, Series of 2012 and HPC Resolution No. 16, Series of 2014. 2.4 Engineering. The Owner's design shall be compliant with all sections of the City's Municipal Code, Title 21, as may be amended from time to time and all construction and excavation standards published by the Engineering Department, as may be amended from time to time. Applicant acknowledges that encroachment on to the Hyman Avenue pedestrian mall will be prohibited without express permission of the City Engineer or City Council. Approval of the Project by the City shall not be deemed approval of any construction encroachments onto the City right of way or the waiver of any restrictions on encroachment into the right of way. A compliant drainage plan must be submitted with a building permit application. This includes detaining and providing water quality for the entire site. If the Owner, or successor -in -interest, chooses fee -in -lieu of detention ("FIL"), it can only be applied to existing impervious areas. All new impervious areas will need to discharge at historic rates. Any discharge from the site must be made to the south mall side of the building as opposed to the alley side. Minor events must be tied into the storm sewer with a manhole. The manhole lid must be located below the mall bricks. Major events must discharge into the mall. Any proposed grade changes to the mall required approval by the Engineering Department. The Owner shall submit a Construction Management Plan ("Plan") at the time of building permit. The Plan shall describe mitigation for: parking, staging/encroachments, and truck traffic. Due to the proximity of the neighboring property and the excavation of the building, the Engineering Department shall require an excavation stabilization plan prior to building permit submittal. 0 0 2.5 Affordable Housing. The three on -site rental AH Units, two studio and one 2-bedroom unit, approved pursuant to Ordinance 27, shall be deed restricted to Category 4. A deed restriction, approved by the Aspen/Pitkin county Housing Authority ("APCHA"), shall be recorded prior to a Certificate of Occupancy for the free market residential component and the commercial component of the Project ("Deed Restriction"). The affordable housing units shall be compliant with the Aspen/Pitkin County Housing Guidelines ("APCHA Guidelines"). Owner and APCHA stipulate and agree that, in accordance with C.R.S. § 38-12-301(2)(a) and (b), this Deed Restriction constitute a voluntary agreement and deed restriction to limit rent on the Property subject hereto and to otherwise provide affordable housing stock. Owner waives any right it may have to claim that this Deed Restriction violates C.R.S. § 38-12-301. More detailed information regarding the management and maintenance of the AH Units shall be provided to APCHA with the proposed Deed Restriction prior to Certificate of Occupancy. The Owner shall have the right to rent the AH Units to tenants qualified under the APCHA Guidelines. If the Owner cannot provide a qualified tenant, the AH Units and/or Unit shall be rented through APCHA's normal advertising process. At no time shall the tenancy of the AH Units and/or Unit during a lease period be tied to continued employment by the Owner. Tenant leases, however, may be terminated for cause or at the end of the lease period upon termination of employment. Any tenant in the AH Units shall be required to be re -qualified by APCHA on a yearly basis. If the Owner elects to sell any of the AH Units, or any of the AH Units are required to be sold due to noncompliance, Owner shall condominiumize the AH Units and/or Unit and form a condominium association for the management and maintenance thereof. The affordable housing association shall be separate from the free-market residential unit's and commercial unit's association(s). In the event the AH Units and/or Unit is required to become ownership unit due to noncompliance, APCHA or the City may elect to purchase them for rental to qualified tenant in accordance with APCHA Guidelines. 2.6 Trash/Utility Service Area. Pursuant to Resolution 17, the HPC found that the Owner has demonstrated, that given the nature of the potential uses of the building and its total square footage, the utility/trash/service area proposed and shown on Exhibit B, including but not limited to access to the utility/trash/service area, is adequate. 2.7 Fire Mitigation. All codes adopted by the Aspen Fire Protection District shall be met. This includes but is not limited to approved fire 4 • 0 sprinkler and fire alarm systems (IFC, as amended, Sections 903 and 907). 2.8 Utilities. All requirements of the City's most recently Adopted Water System Distribution Standards must be met. Fire suppression is required. Fire flow calculations are required to confirm service size. Additionally, electrical service should be discussed immediately with the Electric Department to ensure System capacity. If there is not system capacity it may be necessary for the Owner to place a transformer on site. The transformer shall meet all pertinent electrical codes and all City electrical setbacks. 2.9 Sanitation District Requirements. (a) Service is contingent upon compliance with the Aspen Consolidated Sanitation District's ("ACSD") rules, regulations, and specifications, which are on file at the District office. ACSD will review the approved Drainage plans to assure that clear water connections (roof, foundation, perimeter, patio drains) are not connected to the sanitary sewer system. (b) Oil and Grease interceptors (NOT traps) are required for all food processing establishments; locations of food processing shall be identified prior to building permit; even though the commercial space will be tenant finished, interceptors will be required at the time of building permit submittal if food processing establishments are anticipated for this Project. ACSD will not approve service to food processing establishment retrofitted for this use by the small under counter TRAPS at a later date (c) Permanent improvements are prohibited in sewer easements or right of ways. (d) Landscaping plans will require approval by ACSD where soft and hard landscaping may impact public ROW or easements to be dedicated to the district. 2.10 Exterior Li6tina. 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. 2.11 Parks. Landscaping in the public right of way ("ROW") will be subject to landscaping in the ROW requirements, Chapter 21.20. There shall be no plantings within the City ROW which are not approved by the City Parks Department and the Engineering Department. The 10% required off -site public amenity space may be satisfied through actual improvements approved by the Parks, Engineering, and Community Development Departments, or through a cash -in -lieu payment of $22,567.50 [3,009*$75)* 10%]. 2.12 School Lands Dedication Fee. Pursuant to Land Use Code Section 26.620, School Lands Dedication, the Owner shall pay a fee -in -lieu of land dedication prior to building permit issuance. The City Community Development Department shall calculate the amount due using the calculation methodology and fee 5 0 0 schedule in effect at the time of building permit submittal. The Owner shall provide the market value of the land including site improvements, but excluding the value of structures on site. 2.13 Impact Fees. Pursuant to Land Use Code Section 26.610, Impact Fees, the Owner shall pay a Parks Development impact fee and a Transportation Demand Management (TDM)/Air Quality impact fee assessed at the time of building permit application submittal and paid at building permit issuance. The amount should be calculated using the methodology and fee schedule in effect at the time of building permit submittal. 2.14 Disclosure of Mixed -Uses and Location in the Commercial Core ("CC") Zone District. The Owner shall include in its Covenants, Conditions and Restrictions a notice that will be distributed to future residential owners and tenants of the project, which shall explain the nature of residing in the Commercial Core ("CC") zone district. As part of any sale of the residential unit(s), the buyer of the residential property shall be required to: 1. Acknowledge he/she resides in the CC zone district and is aware of the types of uses permitted in the CC zone district; 2. Acknowledge extended hours of operation for commercial and other permitted uses in the CC zone district; 3. Acknowledge there will be possible noise emanating from such uses throughout the day and nights; 4. Agree not to interfere with or object to activities lawfully permitted in the CC zone district; and 5. Agree not to attempt to prevent any allowed and lawful commercial uses in the CC zone district from opening or operating in the commercial spaces for the Project. The foregoing shall be contained in a permanent restrictive covenant or deed restriction made for the benefit of the Owner and the City, running with the land and enforceable by the Owner or City. All of these risks, costs, hardships and potential value diminution resulting form this covenant as to any owner, resident, or occupant of the premises has been freely accepted as consideration for the opportunity to own, reside, maintain, use and enjoy the Property. This covenant shall be binding upon all owners, residents, and others who occupy the premises and shall inure to the benefit of the City. The owners, residents, and others who occupy the premises acknowledge that any anticipated damages in case of any actual or threatened breach of this covenant would be difficult to ascertain; accordingly, any party aggrieved by a violation of this covenant may bring action at law or in equity, ex parte as necessary, in a court of competent jurisdiction, to enforce the terms of this covenant and to enjoin by temporary or permanent injunction any violation 0 of this covenant. Enforcement of this covenant shall be at the sole discretion of the beneficiaries of the covenant and any forbearance to exercise its rights under this covenant for any breach thereof shall not be deemed or construed to be a waiver by any beneficiary of the covenant. All reasonable costs incurred by the beneficiary, including reasonable attorneys fees, in enforcing this covenant shall be borne by the party found to have violated the covenant. This covenant shall not be amended without the prior written consent of the City. The owner shall also include in its Covenants, Conditions and Restrictions the following: No provision within these covenants shall prohibit any use, occupation or activity within the premises that complies with underlying zoning. This provision may not be amended without express consent of the City. ARTICLE III VESTED PROPERTY RIGHTS The development approvals granted herein shall constitute a site -specific development plan and a vested property right pursuant to Land Use Code Section 26.308.011 attaching to and running with the Subject Property and shall confer upon the Owner the right to undertake and complete the site specific development plan and use of said property under the terms and conditions of the site specific development plan including any approved amendments thereto. The vesting period of these vested property rights shall be for three (3) years from the effective date of the development order pursuant to Chapter 26.304.070(D). However, any failure to abide by any of the terms and conditions attendant to this approval shall result in the forfeiture of said vested property rights. Unless otherwise exempted or extended, failure to properly record all plats and agreements required to be recorded, as specified herein, within 1 year of the effective date of the Development Order shall also result in the forfeiture of said vested property rights and shall render the development order void within the meaning of § 26.104.050, Void Permits. Zoning that is not part of the approved site -specific development plan shall not result in the creation of a vested property right. Nothing in the approvals contained in Ordinance 27 shall exempt the Development Order from subsequent reviews and approvals required by Ordinance 27 or the general rules, regulations and ordinances of the City of Aspen provided that such reviews and approvals are not inconsistent with Ordinance 27. ARTICLE IV FINANCIAL GUARANTEES 4.1 Financial Assurances. Before the Owner is issued a Building Permit the Owner shall provide to the Community Development Department the following: 7 0 • a. Proof of Financing. Before the issuance of a building permit for the development of the Property, and as a condition of such approval, Owner shall provide to the City Building Department and City Attorney for review and approval, satisfactory evidence that Owner has in place sufficient financing to accomplish and complete the construction of the development of the project covered by the building permit and any public improvements indentified within an this Subdivision Agreement and required under Ordinance 27; provided if there is no loan with respect to development of the Project, then Owner shall provide a letter from a financial institution stating that Owner has funds available in an amount that covers the estimated cost of construction for development. Such financing may include without limitation, a construction loan from an institutional lender or lenders and equity capital investments and/or donations from Owner or third party investors or contributors. In addition, before issuance of a building permit for the project, Owner shall provide supporting cost estimates for all improvements covered by the requested building permit prepared by Owner's general contractor for review and approval by the City Building Department. b. Cash Escrow for Site Enhancement Fund. Before the issuance of a building permit for the Project, as a condition of the issuance of a building permit, Owner shall deposit with a title company the sum of TWO HUNDRED FIFTY THOUSAND DOLLARS AND NO/100THS ($250,000.00) (the "Site Enhancement Escrow Funds") in the form of cash or wired funds pursuant to an Escrow Agreement made and entered into between the Owner and the City which shall provide as follows: i. In the event construction work on the development of the Project shall cease for ninety (90) days or longer, prior to a final inspection by the City of the work authorized by a foundation/structural frame permit ("F/SFP") on said parcel and cessation of such construction work continues for a period of one hundred twenty (120) days after notice from the City to the Owner specifying the subject work in reasonable detail, or if such breach cannot be cured reasonably within such one hundred twenty (120) day period and Owner fails to commence and proceed diligently to cure such breach within a reasonable time period, then the City, in its reasonable discretion, may draw upon the Site Enhancement Escrow Funds from time to time as needed for the purposes of improving the appearance of any construction work not already completed on the site. ii. The Site Enhancement Escrow Funds or any remaining balance thereof shall be returned to the Owner, upon completion by the City of a final inspection and issuance of a Certificate of Occupancy for the parcel or when otherwise agreed to by Owner and the City. c. Cash Escrow for Site Protection. Before the issuance of a building permit for the Project, and as a condition of such issuance, the Owner will deposit with a title company the sum of TWO HUNDRED FIFTY THOUSAND DOLLARS AND 8 NO/100THS ($250,000.00) ("Escrow Funds") in the form of cash or wired funds pursuant to an Escrow Agreement made and entered into between the Owner and the City which shall provide as follows: i. In the event construction work on the development of the Project shall cease for sixty (60) days or longer ("Work Stoppage"), prior to a final inspection by the City of the work authorized by the building permit on such lot, and cessation of such construction work continues for a period of thirty (30) days after notice from the City to Owner specifying the subject work in reasonable detail, or if such breach cannot be cured reasonably within such thirty (30) day period and the Owner fails to commence and proceed diligently to cure such breach within a reasonable time period, then the City in its reasonable discretion may draw upon the Escrow Funds from time to time as needed for the purposes of protecting and securing construction the construction site and improvements thereon from damage by the elements and/or from trespass by unauthorized persons, and for purposes of improving the site to a safe condition such that it does not become an attractive nuisance or otherwise pose a threat to neighbors or other persons. ii. Half of the Escrow Funds shall be returned to the Owner upon completion by the City of a final inspection of the work authorized by the building permit on the Project. The balance of funds shall be returned to the Owner once exterior finishes to the building have been installed ARTICLE V NON-COMPLIANCE AND REQUEST FOR AMENDMENTS OR EXTENSIONS In the event that the City Council determines that Owner is not acting in substantial compliance with the terms of this Subdivision Agreement, the City Council shall notify Owner in writing specifying the alleged non-compliance and asking that Owner remedy the alleged non-compliance within such reasonable time as the City Council may determine, but not less than 30 days. If the City Council determines that Owner has not complied within such time, the City Council may issue and serve upon Owner a written order specifying the alleged non-compliance and requiring Owner to remedy the same within thirty (30) days. Within twenty (20) days of the receipt of such order, Owner may file with the City Council either a notice advising the City Council that it is in compliance or a written petition requesting a hearing 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 this Subdivision Agreement should be granted with respect to any such non- 0 compliance which is determined to exist. Upon the receipt of such petition, the City Council shall promptly schedule a hearing to consider the matters set forth in the order of non-compliance and in the petition. The hearing shall be convened and conducted pursuant to the procedures normally established by the City Council for other hearings. If the City Council determines by a preponderance of the evidence 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 Council may also grant such variances, extensions of time or amendments to this Subdivision Agreement as it may deem appropriate under the circumstances. The parties expressly acknowledge and agree that the City Council shall not unreasonably refuse to extend the time periods for performance hereunder if Owner demonstrates by a preponderance of the evidence 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 Owner, despite good faith efforts on its part to perform in a timely manner. ARTICLE VI GENERAL PROVISIONS 6.1 The provisions hereof shall be binding upon and inure to the benefit of Owner and City and their respective successors and assigns. 6.2 This Subdivision Agreement shall be subject to and construed in accordance with the laws of the State of Colorado. 6.3 If any provision 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. 6.4 This Subdivision Agreement and any Exhibits attached hereto, together with the Ordinances and Resolutions described above, contain the entire understanding between the parties hereto with respect to the transactions contemplated hereunder. Owner, its successors or assigns, may, on its own initiative, petition the City Council for an amendment to this Subdivision Agreement or for an extension of one or more of the time periods required for performance hereunder. The City Council shall not unreasonably deny such petition for amendment or extension after considering all appropriate circumstances. Any such amendments or extensions of time shall only become effective upon the execution by all parties hereto that are affected by the proposed amendment. 10 6.5 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. 6.6 Upon execution of this Subdivision Agreement by all parties hereto, City agrees to approve and execute the Subdivision Plat pursuant to the terms of this Subdivision Agreement 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 Owner. 6.7 Notices to be given to the parties to this Subdivision Agreement shall be considered to be given if hand delivered or if deposited in the United States Mail 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: CITY: City of Aspen City Manager 130 South Galena Street Aspen, CO 81611 OWNER: John Martin Box 297 Queenstown, NZ With Copy to: Leonard M. Oates, Esq. Oates, Knezevich, Gardenswartz, Kelly & Morrow, P.C. 533 E. Hopkins Avenue Aspen, CO 81611 6.8 This Subdivision Agreement may be executed in counterparts, in which case all such counterparts together shall constitute one and the same instrument which is binding on all of the parties thereto, notwithstanding that all of the parties are not signatory to the original or the same counterpart. Facsimile signatures shall be treated as original signatures hereon. 6.9 The terms, conditions, provisions and obligations herein contained shall be deemed covenants that run with and burden the Duvike Condominium Subdivision and any and all owners thereof or interests therein, their respective successors, grantees or assigns, and further shall inure to the benefit of and be specifically enforceable by or against the parties hereto, their respective successors, grantees or assigns. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the day and year first above written. 11 0 • CITY: City of Aspen, Colorado, a Colorado APPROVED AS TO FORM: Z/ -/-, ": = - e- <:::::: z --- - - - - es R. True, City Attorney OWNER: C By ger arolt, Authorized Agent STATE OF COLORADO COUNTY OF PITKIN The foregoing instrument was acknowledged before me this day of 2014, by Steve Skadron, as Mayor and Linda Manning, as City Clerk of the City of Aspen, Colorado, a municipal corporation. Witness my hand and officials al. My commission expires: of aS dv/6 Iz- Notary Pu is 12 STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this /2t'' day of ,.,j ovvoh cr 2014, by Roger Marolt as Authorized Agent of CM, LLC. Witness my hand and official seal. My commission expires: S . I S . IV: o Not ry Public LISA E. POPISH NOTARY PUBLIC STATE OF COLORADO NOTARY ID #20054018338 My Commission Expires May 15, 2017 13 0 is CONSENT OF MORTGAGEE The undersigned, being the holder of a lien on the property comprising the Duvike Condominium Subdivision pursuant to a Deed of Trust recorded as Reception No. 524601 in the Office of the Clerk and Recorder of Pitkin County, Colorado, hereby consents to and approves the recording of this Subdivision Agreement for the Duvike Condominium Association. Dated this S day of D,14. ALPINE BANK By: r Name Title STATE OF COLORADO ) )ss COUNTY OF PITKIN ) The foregoing Consent of Mortgagee was acknowledged before me this day of Nov. 2014, by mpgj Viu cs as ,Ssvrr„� ,�� of Alpine Bank. Vag sz0E+�— Witness my hand and official seal. My commission expires: /.,-2 -3 Ap 6NI PK AMATO Newt' Pubk SMM N Cowedo Notary 10 20124011549 My Commission Expires Dec 3, 2016 No is 14 • • Stewart title Stewart Title -Aspen 620 East Hopkins Avenue Aspen, CO 81611 WRITTEN OWNERSHIP AND ENCUMBRANCE REPORT Order No. 01330-47474 Date: September 17, 2014 Customer Reference: 420 East Hyman Avenue Unit 101 Aspen, CO 81611 LEGAL DESCRIPTION: Units 101, 201, 202, 203, 301, 302, 303 and 304, DUVIKE CONDOMINIUM, according to the Condominium Map thereof recorded June 4, 1981 in Plat Book 11 at Page 61 as Reception No. 233278, and as defined and described in the Condominium Declaration for Duvike Condominium recorded June 4, 1981 in Book 409 at Page 355 as Reception No. 233277. APPARENT OWNER OF RECORD: CM, LLC, a Colorado Limited Liability Company Deeds of Trust, Mortgages and Liens which purport to affect the above described property, as disclosed by the records of the Clerk and Recorder of Pitkin County, Colorado, through the effective date of September 11, 2014: 1. A Deed of Trust executed by Cm LLC, to the Public Trustee, to secure an indebtedness of $1,500,000.00 in favor of Alpine Bank recorded May 30, 2006 as Reception No. 524601. NOTE: Said Deed of Trust was modified as Reception No. 561918. NOTE: Said Deed of Trust was modified as Reception No. 586009. 2. A Deed of Trust executed by Cm LLC, to the Public Trustee, to secure an indebtedness of $986,343.55 in favor of Alpine Bank recorded May 30, 2006 as Reception No. 524602. NOTE: Said Deed of Trust was modified as Reception No. 561906. NOTE: Said Deed of Trust was modified as Reception No. 586010. 3. A Deed of Trust executed by Cm LLC, to the Public Trustee, to secure an indebtedness of $2,000,000.00 in favor of Alpine Bank recorded August 31, 2006 as Reception No. 528094. NOTE: Said Deed of Trust was modified as Reception No. 561905. NOTE: Said Deed of Trust was modified as Reception No. 586712. The liability of Stewart Title, its affiliates and associates, for any errors or omissions affecting or relating to the information appearing in this report is strictly limited to the amount paid for this report. The aforementioned liability is limited to the customer who ordered this report. There are no expressed or implied warranties assuring or representing that this report is reliable for title information, and therefore, should be verified by a Commitment for Title Insurance. Order No.: 01330-47474 Page 1 of 2 Written OE Report STCO u No representation is made as to the completeness, validity, or legal sufficiency of the documents referenced herein, nor have any of such documents been examined to determine whether or not there are any exceptions, reservations, encumbrances or other matters which might be detrimental to Title. No search has been made for any reservations, restrictions, covenants, easements, rights of way, mineral interests, water rights, and any other encumbrances which are not a deed of trust, mortgage or lien. W M-, I M - -, W-- - M-- Authorized Countersignature Authorized Representative of Stewart Title Order No.: 01330-47474 Page 2 of 2 Written OE Report STCO • Jennifer Phelan From: Jennifer Phelan Sent: Friday, September 12, 2014 9:24 AM To: 'Sarah Oates' Subject: Duvike Hi Sara: I'm looking over the land use submittal for 420 E. Hyman. and have a couple of questions I am hoping you can assist with them. I think that this is the Zocolito building. Sara Adams is out so I don't have a chance to ask her. 1) Was there any requirement for a plat? The old code required a plat ... was that waived in the approvals? 2) Can you provide a digital copy of the draft SIA 3) The title needs to be no older than 6 months to verify ownership. Following is what we can accept: Street address and legal description of the parcel on which development is proposed to occur, consisting of a current (no older than 6 months) certificate from a title insurance company, an ownership and encumbrance report, 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. Thanks, jen 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 RECEIVE SEP 1 on 2014 CITY OF ASPEN COMMUNITY NVELOPMEN1 Notice and Disclaimer: This message is intended only for the individual or entity to which it is addressed and may contain information that is confidential and exempt from disclosure pursuant to applicable law. If you are not the intended recipient, please reply to the sender that you have received the message in error and then delete it. Further, the information or opinions contained in this email are advisory in nature only and are not binding on the City of Aspen. If applicable, the information and opinions contain in the email are based on current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The opinions and information contained herein do not create a legal or vested right or any claim of detrimental reliance. ATTACHMENT 2 —LAND USE APPLICATION r PROJECT: Name: Duvike Condominium Subdivision Location: 420 E. Hyman Avenue, Aspen, CO 81611 (Indicate street address, lot & block number, legal description where appropriate) Parcel I D # (REQUIRED) Various: 2737-073-39801 is PIN for Common Area APPLICANT: Name: CM LLC Address: c/o Marolt LLP, 230 S. Mill Street, Aspen, CO 81611 Phone #: (970) 925-7047 REPRESENTATIVE: Name: Sarah Oates, Oates, Knezevich, Gardenswartz, Kelly & Morrow, Address: 533 E. Hopkins Ave, Third Floor, Aspen, CO 81611 Phone #: (970) 920-1700 9P -- .-are A n /...1,....... ,.1.,.._1...11 .1L..... _1_A. . .... v. car • u.a.`a. rv�.. �N.a.u.�a. v..vv.a u.. u.u. uN}iay/• ❑ GMQS Exemption ❑ Conceptual PUD ❑ Temporary Use ❑ GMQS Allotment ❑ Final PUD (& PUD Amendment) ❑ Text/Map Amendment ❑ Special Review ❑ Subdivision ❑ Conceptual SPA ❑ ESA — 8040 Greenline, Stream ❑ Subdivision Exemption (includes ❑ Final SPA (& SPA Margin, Hallam Lake Bluff, condominiumization) Amendment) Mountain View Plane ❑ Commercial Design Review ❑ Lot Split ❑ Small Lodge Conversion/ Expansion ❑ Residential Design Variance ❑ Lot Line Adjustment P9 Other: Recordation ❑ Conditional Use Documents — Subdiv. EXISTING CONDITIONS: (description of existing buildings, uses, previous approvals, etc.) Existing Condominiumized Commercial Building PROPOSAL: (description of proposed buildings, uses, modifications, etc.) Demolition and new commercial building with residential units has been approved; this application is for review of recordation documents lawn vnn . ffonhnd +hn fnllnwinrt9 Grrc n, rr. ® Pre -Application Conference Summary ❑X Attachment #l, Signed Fee Agreement (Response to Attachment #3, Dimensional Requirements Form &esponse to Attachment #4, Submittal Requirements- Including Written Responses to Review Standards EVa-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 3-13 model. PC CITA ASPEN • PRE -APPLICATION CONFERENCE SUMMARY PLANNER: Sara Adams, 429-2778 DATE: July 7, 2014 $EP PROJECT: 420 E. Hyman Ave. - Recordation Documents 5 REPRESENTATIVE: Marina Skiles, Charles Cunniffe Architects (920-5590) l;J7 Yy ,-, DESCRIPTION: The Applicant received Subdivision approval (City Council Ordinance #27, Series of 2013) for a mixed use building located at 534 E. Cooper Ave, aka Boogie's. The following final documents are required to be recorded: Subdivision Improvements Agreement. The project currently has a deadline of November 27, 2014 record the documents. If additional time is needed, the applicant may request an extension. All documents are reviewed administratively. No public hearings are required. In addition to Planning staff review the City Attorney's Office will review the recordation documents. Relevant Land Use Code Section(s): 26.304 Common Development Review Procedures 26.480.070 Subdivision Agreement http:(1www.aspenpitkin.com/depts/38/citycode.cfm Review by: • Staff for complete application and approval of documents Planning Fees: Planning Deposit — $1300 for 4 hours (additional time is billed at $325 per hour) Referral Fees: City Attorney's Office — no deposit, but time is billed at $325 per hour Total Deposit: $1,625 TQ apply, submit the following information: S,, Proof of ownership with payment. Signed fee agreement. Applicant's name, address and telephone number in a letter signed by the applicant which states the name, address and telephone number of the representative authorized to act on behalf of the applicant. Street address and legal description of the parcel on which development is proposed to occur, consisting of a current certificate from a title insurance company, or attorney licensed to practice in the State of Colorado, listing 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. Total deposit for review of the application, "'IS 2 Hard copies of the complete application packet. "& Electronic copy of all documents. 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. e;)— —]�� S, P—) J � 5--� (-Cl :+,� !�-7 --� s ---� ��f�- Land Use Review Fee Policy The City of Aspen has established a review fee policy for the processing of land use applications. A flat fee or deposit is collected for land use applications based on the type of application submitted. A flat fee is collected by Community Development for applications which normally take a minimal and predictable amount of staff time to process. Review fees for other City departments reviewing the application (referral departments) will also be collected when necessary. Flat fees are cumulative — meaning an application with multiple flat fees must pay the sum of those flat fees. Flat fees are not refundable. A review fee deposit is collected by Community Development when more extensive staff review is required. Actual staff time spent will be charged against the deposit. Various City staff may also charge their time spent on the case in addition to the case planner. Deposit amounts may be reduced if, in the opinion of the Community Development Director, the project is expected to take significantly less time to process than the deposit indicates. A determination on the deposit amount shall be made during the pre -application conference by the case planner. Hourly billing shall still apply. All applications must include an Agreement to Pay Application Fees. One payment including the deposit for Planning and referral agency fees must be submitted with each land use application, made payable to the City of Aspen. Applications will not be accepted for processing without the required application fee. The Community Development Department shall keep an accurate record of the actual time required for the processing of a land use application requiring a deposit. The City can provide a summary report of fees due at the applicant's request. The applicant will be billed for the additional costs incurred by the City when the processing of an application by the Community Development Department takes more time or expense than is covered by the deposit. Any direct costs attributable to a project review shall be billed to the applicant with no additional administrative charge. In the event the processing of an application takes less time than provided for by the deposit, the department shall refund the unused portion of the deposited fee to the applicant. Fees shall be due regardless of whether an applicant receives approval. Unless otherwise combined by the Director for simplicity of billing, all applications for conceptual, final, and recordation of approval documents shall be handled as individual cases for the purposes of billing. Upon conceptual approval all billing shall be reconciled and all past due invoices shall be paid prior to the Director accepting an application for final review. Final review shall require a new deposit at the rate in effect at the time of final application submission. Upon final approval all billing shall again be reconciled prior to the Director accepting an application for review of technical documents for recordation. The Community Development Director may cease processing of a land use application for which an unpaid invoice is 30 or more days past due. Unpaid invoices of 90 or more days past due may be assessed a late fee of 1.75% per month. An unpaid invoice of 120 days or more may be subject to additional actions as may be assigned by the Municipal Court Judge. All payment information is public domain. All invoices shall be paid prior to issuance of a Development Order or recordation of development agreements and plats. The City will not accept a building permit for a property until all invoices are paid in full. For permits already accepted, an unpaid invoice of 90 or more days may result in cessation of building permit processing or issuance of a stop work order until full payment is made. The property owner of record is the party responsible for payment of all costs associated with a land use application for the property. Any secondary agreement between a property owner and an applicant representing the owner (e.g. a contract purchaser) regarding payment of fees is solely between those private parties. Agreement to Pay Application Fees yn agreement between the city of Aspen ("Uity") and Property CM LLC Owner ("I"): Address of 420 E. Hyman Ave. Property: (subject of application) Phone No.: (970) 925-7047 Email: CITY OF ASPEN r�MEl1 Billing 230 S. Mill Street, Aspen, CO Address: 81611 (send bills here) 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 all fees for this development application. For flat fees and referral fees: I agree to pay the following fees for the services indicated. I understand that these flat fees are non-refundable. $ 0 flat fee for Select Dept $ 0 flat fee for Select Dept $0 flat fee for Select Dept $ 0 flat fee for Select Review 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. I 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. $1,625 deposit for 5 hours of Community Development Department staff time. Additional time above the deposit amount will be billed at $325 per hour. $ 0 deposit for 0 hours of Engineering Department staff time. Additional time above the deposit amount will be billed at $265 per hour. City of Aspen: Chris Bendon Community Development Director Property er: Name: CM, LLC Roger Marolt, Authorized Representative City Use: 1625 Title: Fees Due: $ Received: $ �i 1] September 4, 2014 City of Aspen Community Development Department 130 S. Galena St. Aspen, CO 81611 �LD' C E-' "' D ti SEP 52014 CITE'" OF ASPEN RE: 420 E. Hyman Avenue (Duvike Condominium Subdivision) — Recordation Documents To Whom It May Concern: I hereby authorize Sarah Oates of Oates, Knezevich, Gardenswartz, Kelly & Morrow, P.C., 533 E. Hopkins Avenue, Third Floor, Aspen, CO 81611, (970) 920-1700, to act as my designated and authorized representative with respect to the land use application for recordation documents being submitted to your office for property located at 420 E. Hyman Avenue owned by CM, LLC. �1 t '�" Roger Marolt Authorized Representative of CM, LLC c/o Marolt LLP 230 S. Mill Street Aspen, CO 81611 (970) 925-7047 ALTA OWNER'S POLICY—10-1'r ,L POLICY OF TITLE INSURANCE ISSUED BY STEWART TITLE GUARANTY COMPANY SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, STEWART TITLE GUARANTY COMPANY, a Texas corporation, herein called the Company, insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the Amount of Insurance stated in Schedule A, sustained or incurred by the insured by reason of: 1. Title to the estate or interest described in Schedule A being vested other than as stated therein; 2. Any defect in or lien or encumbrance on the title; 3. Unmarketability of the title; 4. Lack of a right of access to and from the land. The Company will also pay the costs, attorneys' fees and expenses incurred in defense of the title, as insured, but only to the extent provided in the Conditions and Stipulations. IN WITNESS WHEREOF, Stewart Title Guaranty Company has caused this policy to be signed and sealed by its duly authorized officers as of the Date of Policy shown in Schedule A. STEWART TITLE GUARANTY COMPANY r La�rob :tsw CLei�o or th. Bo. d W•? _*_ �f0.t 19 0 8 fo .t rFXpti Countersigned: Authorized Countersignature Stewart Title of Aspen, Inc. (970) 925-3577 620 East Hopkins Avenue Aspen, CO 81611 PlI.idsot EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: I. (a) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the land; (ni) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a pan; or (iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Defects, liens, encumbrances, adverse claims or other matters: (a) created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy; or (c) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the estate or interest insured by this policy. Serial No. 0-9701-1537799 1r_P-wIof4 ALTA OWNER'S POLICY 10-17-92 • ALTA OWNER'S POLICY SCHEDULE A Order Number: 43702 Date of Policy: August 1, 2005 at 12:03 PM Amount of insurance: $3,800,000.00 1. Name of Insured: CM, LLC, a Colorado limited liability company Policy No.: 0-9701-1537799 Premium: $2,558.00 2. The estate or interest in the land which is covered by this Policy is: Fee Simple 3. Title to the estate or interest in the land is vested in: CM, LLC, a Colorado limited liability company 4. The land referred to in this policy is described as follows: Units 101, 201, 202, 203, 301, 302, 303 and 304 DUVIKE CONDOWNIUM, according to the Condominium Map thereof recorded June 4, 1981 in Plat Book 1 1 at Page 61 as Reception No. 233278, and as defined and described in the Condominium Declaration for Duvike Condominium recorded June 4, 1981 in Book 409 at Page 355 as Reception No. 233277. TOGETHER with non-exclusive, perpetual access as set forth in Agreement recorded May 20, 2003 as Reception No. 483036. County of Pitkin, State of Colorado STEWART TITLE GUARANTY COMPANY • ALTA OWNER'S POLICY • SCHEDULE B Order Number: 43702 Policy No: 0-9701-1537799 This policy does not insure against loss or damage (and the Company will not pay costs, attorney's fees or expenses) which arise by reason of: 1. Rights or claims of parties in possession, not shown by the public records. 2. Easements, or claims of easements, not shown by the public records. 3. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, and any facts which a correct survey and inspection of the premises would disclose and which are not shown by the public records. 4. Any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law and not shown by the public records. 5. Unpatented mining claims; reservations or exceptions in patents, or an act authorizing the issuance thereof; water rights, claims or title to water. 6. Taxes and Assessments for the year 2005, not yet due and payable, and subsequent years and any special assessments not yet certified on the tax rolls of Pitkin County. 7. Exceptions and reservations as set forth in the Act authorizing the issuance of the Patent for the City and Townsite of Aspen recorded March 1, 1897 in Book 139 at Page 216 as Reception No. 60156. 8. Terms, conditions, obligations and provisions of Resolution No. 6 (Series of 1973) as set forth in instrument recorded April 3, 1973 in Book 274 at Page 217 as Reception No. 158616. 9. Terms, conditions, obligations and provisions of Statement of Exemption from Subdivision Regulation as set forth in instrument recorded June 4, 1981 in Book 409 at Page 353 as Reception No. 233276. 10. Terms, conditions, obligations, provisions and easements of Condominium Declaration for Duvike Condominium as set forth in instrument recorded June 4, 1981 in Book 409 at Page 355 as Reception No. 253277. 11. Easements, rights of way and other matters as shown and contained on Condominium Map of Duvike Condominiums recorded June 4, 1981 in Plat Book 11 at Page 61 as Reception No. 253278. STEWART TITLE GUARANTY COMPANY ALTA OWNER'S POLICY SCHEDULE B Order Number: 43702 Policy No: 0-9701-1537799 12. Terms, conditions, obligations and provisions of Agreement between Walter Birk, Frank J. Woods, I11, Walter Hampel, Jr., Larry Ferguson and Loma Alto Corporation, a Texas corporation and William R. Dunaway, Albert Kern and George Vicenzi as set forth in instrument recorded May 20, 2003 as Reception No. 483036. 13. A Deed of Trust dated July 29, 2005, executed by CM, LLC, a Colorado limited liability company, to the Public Trustee of Pitkin County, to secure an indebtedness of $2,500,000.00, in favor of Alpine Bank, recorded August 1, 2005 as Reception No. 513025. NOTE: Assignment of Rents recorded August 8, 2005 as Reception No.: 513161, given in connection with the above Deed of Trust. STEWART TITLE GUARANTY COMPANY ENDORSEMENT ATTACHED TO AND MADE A PART OF POLICY OF TITLE INSURANCE SERIAL NUMBER 0-9701-1537799 STEWART TITLE GUARANTY COMPANY HEREIN CALLED THE COMPANY Order Number: 43702 The Policy is hereby amended by deleting Paragraph 1 through 4 of Schedule B. Charge: $150.00 This endorsement is made a part of the policy and is subject to all of the terms and provisions thereof and of any prior endorsements thereto. Except to the extent expressly stated, it neither modifies any of the terms and provisions of the policy and any prior endorsements, nor does it extend the effective date of the policy and any prior endorsements, nor does it increase the face amount thereof. Signed under seal for the Company, but this endorsement is to be valid only when it bears an authorized countersignature. S TEWART TITLE GUARANTY COMPANY 0- Igoe o er.ae..c • X Countersigned: Authorized Stewart Title of Aspen, Inc. 620 East Hopkins Avenue AspenCO CO 81611 (970)925-3577 Serial No. E-9851-1537799 CLTA Form 110.1 (Rev. 9-10-93) Deletion of Item From Policy ALTA — Owner 0 STG Index of Endorsements to Policy Agent File No.: 43702 1] STEWART TITLE GUARANTY COMPANY INDEX OF ENDORSEMENTS TO POLICY COLORADO Insured: CM, LLC, a Colorado limited liability company Policy No.: 0-9701-1537799 Policy Form: ALTA Owners Policy 10-17-92 Charge: $2,558.00 The Endorsements indicated below are attached to the above referenced Policy: ENDORSEMENT 110.1 Deletion of Standard Exceptions Charge $ 150.00 5. PROOF OF LOSS OR DAMAGE. In addition to and after the notices required under Section 3 of these Conditions and Stipulations have been provided the Company, a proof of loss or damage signed and swom to by the insured claimant shall be furnished to the Company within 90 days after the insured claimant shall ascertain the facts giving rise to the loss or damage. The proof of loss or damage shall describe the defect in, or lien or encumbrance on the title, or other matter insured against by this policy which constitutes the basis of loss or damage and shall state, to the extent possible, the basis of calculating the amount of the loss or damage If the Company is prejudiced by the failure of the insured claimant to provide the required proof of loss or damage, the Company's obligations to the insured under the policy shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation, with regard to the matter or matters requiring such proof of loss or damage. In addition, the insured claimant may reasonably be required to submit to examination under oath by any authorized representative of the Company and shall produce for examination, inspection and copying, at such reasonable times and places as may be designated by any authorized representative of the Company, all records, books, ledgers, checks, correspondence and memoranda, whether bearing a date before or after Date of Policy, which reasonably pertain to the loss or damage. Further, if requested by any authorized representative of the Company, the insured claimant shall grant its permission, in writing, for any authorized representative of the Company to examine, inspect and copy all records, books, ledgers, checks, correspondence and memoranda in the custody or control of a third party, which reasonably pertain to the loss or damage. All information designated as confidential by the insured claimant provided to the Company pursuant to this Section shall not be disclosed to others unless, in the reasonable judgment of the Company, it is necessary in the administration of the claim. Failure of the insured claimant to submit for examination under oath, produce other reasonably requested information or grant permission to secure reasonably necessary information from third parties as required in this paragraph shall terminate any liability of the Company under this policy as to that claim. 6. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS; TERMINATION OF LIABILITY. In case of a claim under this policy, the Company shall have the following additional options: (a) To Pay or Tender Payment of the Amount of Insurance. (i) To pay or tender payment of the amount of insurance under this policy together with any costs, attorneys' fees and expenses incurred by the insured claimant, which were authorized by the Company, up to the time of payment or tender of payment and which the Company is obligated to pay. (ii) Upon the exercise by the Company of this option, all liability and obligations to the insured under this policy, other than to make the payment required, shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation, and the policy shall be surrendered to the Company for cancellation. (b) To Pay or Otherwise Settle With Parties Other than the Insured or With the Insured Claimant. (i) to pay or otherwise settle with other parties for or in the name of an insured claimant any claim insured against under this policy, together with any costs, attorneys' fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay; or (ii) to pay or otherwise settle with the insured claimant the loss or damage provided for under this policy, together with any costs, attorneys' fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay. Upon the exercise by the Company of either of the options provided for in paragraphs (b)(i) or (ii), the Company's obligations to the insured under this policy for the claimed loss or damage, other than the payments required to be made, shall terminate, including any liability or obligation to defend, prosecute or continue any litigation. 7. DETERMINATION, EXTENT OF LIABILITY AND COINSURANCE. This policy is a contract of indemnity against actual monetary loss or damage sustained or incurred by the insured claimant who has suffered loss or damage by reason of matters insured against by this policy and only to the extent herein described. (a) The liability of the Company under this policy shall not exceed the least of: (i) the Amount of Insurance stated in Schedule A; or, (ii) the difference between the value of the insured estate or interest as insured and the value of the insured estate or interest subject to the defect, lien or encumbrance insured against by this policy. (b) In the event the Amount of Insurance stated in Schedule A at the Date of Policy is less than 80 percent of the value of the insured estate or interest or the full consideration paid for the land, whichever is less, or if subsequent to the Date of Policy an improvement is erected on the land which increases the value of the insured estate or interest by at least 20 percent over the Amount of Insurance stated in Schedule A, then this Policy is subject to the following: (i) where no subsequent improvement has been made, as to any partial loss, the Company shall only pay the loss pro rata in the proportion that the amount of insurance at Dale of Policy bears to the total value of the insured estate or interest at Date of Policy; or (ii) where a subsequent improvement has been made, as to any partial loss, the Company shall only pay the loss pro rata in the proportion that 120 percent of the Amount of Insurance stated in Schedule A bears to the sum of the Amount of Insurance stated in Schedule A and the amount expended for the improvement.The provisions of this paragraph shall not apply to costs, attorneys' fees and expenses for which the Company is liable under this policy, and shall only apply to that portion of any loss which exceeds, in the aggregate, 10 percent of the Amount of Insurance stated in Schedule A. (c) The Company will pay only those costs, attorneys' fees and expenses incurred in accordance with Section 4 of these Conditions and Stipulations. 8. APPORTIONMENT. If the land described in Schedule A consists of two or more parcels which are not used as a single site, and a loss is established affecting one or more of the parcels but not all, the loss shall be computed and settled on a pro rata basis as if the amount of insurance under this policy was divided pro rats as to the value on Date of Policy of each separate parcel to the whole, exclusive of any improvements made subsequent to Date of Policy, unless a liability or value has otherwise been agreed upon as to each parcel by the Company and the insured at the time of the issuance of this policy and shown by an express statement or by an endorsement attached to this policy. Serial No. 0-9701-1537799 Pa e 3 of 4 ALTA OWNER'S POLICY 10-17-92 SUBDIVISION AGREEMENT FOR DUVIKE CONDOMINIUM SUBDIVISION THIS SUBDIVISION AGREEMENT ("Subdivision Agreement") is made and entered into this day of , 2014, by and between THE CITY OF ASPEN, COLORADO, a municipal corporation (hereinafter referred to as "City"), and CM LLC, a Colorado limited liability company (hereinafter referred to as "Owner"), WITNESSETH: WHEREAS, Owner has submitted to the City for approval for the demolition and redevelopment of a parcel of land situated within the City of°Aspen, Colorado and more particularly described as Lot O, Block 88, City and Townsite of Aspen, Colorado, said property being hereafter designated and known as the "Duvike Condominium Subdivision" which was previously subdivided under the Colorado Condominium Act as a condominium as the Duvike Condominium; and WHEREAS, City has fully considered the land use application, the proposed development and improvement of the lands therein, and the effects of the proposed development and improvement of said lands on adjoining or neighboring properties and property owners; and WHEREAS, under the provisions of Ordinance No. 27 (Series of 2013) ("Ordinance 27") adopted by the Aspen City Council on September 9, 2013, the City has imposed certain conditions and requirements in connection with its approval of the Duvike Condominium Subdivision and its execution and recordation of the Subdivision Plat, such matters being necessary to protect, promote and enhance the public welfare; and WHEREAS, 'caner is willing to acknowledge, accept, abide by and faithfully perform the conditions and requirements imposed by the City in approving the redevelopment of the Duvike Condominium Subdivision; and NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, the approval, execution and acceptance of the Subdivision Agreement and eventual execution and acceptance of the Condominium Map/Subdivision Plat for Duvike Condominium Subdivision, and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE I ZONING AND REGULATORY APPROVALS 1 1.1 Pursuant to Resolution No. 17 (Series of 2012) ("Resolution 17") adopted July 25, 2012 and Resolution No. 28 (Series of 2012) ("Resolution 28"), amending Resolution 11#adopted November 14, 2012, the City of Aspen Historic Preservation Commission ("HPC") granted Major Development Approval (Conceptual), Commercial Design Demolition and a Variance from Trash/Utility/Recycle Service Area requirement with conditions. The HPC found said property met criteria pursuant to § 26.415.080, Demolition of a designated historic properties due to life, health and safety concerns, and lack of contribution to the historic district in which the structure is located. Additionally, the HPC found a reduction of the trash/utility/service area for said property was appropriate as the proposed trash/utility/service area was adequate. 1.2 Pursuant to Resolution No. 16 (Series of 2014) ("Resolution 16"), adopted on May 28, 2014, the HPC granted HPC Major Development Approval (Final) and Commercial Design (Final) pursuant to § 26.412.040, of the Municipal Code. Styof; .7 1.2 Pursuant to Ordinance 27, adopted on J.uly4, 2013 and recorded as Reception No. 603649, the Aspen City Council approved the Duvike Condominium Subdivision, with conditions, for the development of one (1) free market residential unit, three (3) Category 4 affordable housing units and 786 square feet of new commercial space, approved the re-condominiumization of the Project to define the separate ownerships therein by the recording of a condominium map in compliance with the current (at the time of condominium map submission) requirements of the City of Aspen Community Development Engineer. Said condominium map and associated document, which shall also act as the subdivi 'on plat, must be filed prior to the issuance of a Certificate of Occupancy. �� iIn the event of any JpCftsisteneyebetween the provisions of the above -described n dinances and/or Resol s,'and the provisions of this Subdivision Agreement, the ovisions of this Subdivisio reement shall control. ARTICLE II VELOPMENT REQUIREMENTS AND RESTRICTIONS 2.1 . . Development Program. The building, as redeveloped, will be a mixed- use-"4uilding` containing an as yet unspecified number of commercial spaces with an additiortal� 7796 square feet of commercial net leasable space (the "Commercial Units"), one (1) foe market dwelling units (the "Free Market Unit") and three (3) affordable housing units (the "AH Units") as is more fully specified in Ordinance 27 ("Project"). The existing building shall be demolished and the Project shall be subject to the dimensional requirements of the Land Use Code in effect on April 4, 2012 (e.g. date of initial application), attached hereto as Exhibit "A" and incorporated herein be reference. Compliance with these requirements will be verified by the City of Aspen Zoning Officer at the time of building permit submittal. 2.2 Subdivision Plat/Condominium Map. Once construction is nearly 2 complete but prior to an issuance of Certificate of Occupancy, the Owner shall file a condominium plat and associated documents for review and approval by the City Engineer and Community Development Director as outlined in Land Use Code § 26.480.090, Condominiumzation. The condominium plat shall act as the subdivision plat. A separate subdivision plat is not required. 2.3 Dimensions, Zoning and Building Requirements. All dimensions shall meet the requirements of the Land Use Code in effect on April 4, 2012 (date of initial application), attached hereto as Exhibit "A" and incorporated herein by reference. The approved floor plans are attached hereto as Exhibit `B" and incorporated herein by reference. Minor changes from these are permitted at building permit. Areas labeled as "roof' or "green roof' are not permitted for use as a deck. Final floor plans shall meet adopted Building Code requirements for accessibility for all units. The project is subject to all conditions included in HPC rei 1,00fftuos. 17 and 28, Series of 2012 and HPC Resolution No. 16, Series of 2014. 2.4 Engineering. The Owner's design shy°` be c'mpliant with all sections of the City's Municipal Code, Title 21, as may be ae d from time to time and all construction and excavation standards published by fli n ineering Department, as may be amended from time to time. Applicant acknowledges that encroachment on to the Hyman Avenue pedestrian mall will be prohibited without express permission of the City Engineer or City Council. Approval of the Project by the City shall not be deemed approval of any construction encroachments onto the City right of way or the waiver of any restrictions on encroachment into the right of way. A compliant drainage plan must be submitted with a building permit application. This includes detaining and providing water quality for the entire site. If the Owner, or successor -in -interest, chooses fee -in -lieu of detention ("FIL"), it can only be applied to existing impervious areas. All new impervious areas will need to discharge at historic rates. Any discharge from the site must be made to the south mall side of the building as opposed to the alley side. Minor events must be tied into the storm sewer with a manhole. The manhole lid must be located below the mall bricks. Major events must discharge into the mall. Any proposed grade changes to the mall required approval by the Engineering Department. The Owner shall submit a Construction Management Plan ("Plan") at the time of building permit. The Plan shall describe mitigation for: parking, staging/encroachments, and truck traffic. Due to the proximity of the neighboring property and the excavation of the building, the Engineering Department shall require an excavation stabilization plan prior to building permit submittal. 3 • 0 2.5 Affordable Housing. The three on -site rental AH Units, two studio and one 2-bedroom unit, approved pursuant to Ordinance 27, shall be deed restricted to Category 4. A deed restriction, approved by the Aspen/Pitkin county Housing Authority I ("APCHA"), shall be recorded prior to a Certificate of Occupancy for the free market re.L00'4 a€ o component and the commercial component of the Project ("Deed Restriction"). The affordable housing units shall be compliant with the Aspen/Pitkin County Housing Guidelines ("APCHA Guidelines"). Owner and APCHA stipulate and agree that, in accordance with C.R.S. § 38-12-301(2)(a) and (b), this Deed Restriction constitute a voluntary agreement and deed restriction to limit rent on the Property subject hereto and to otherwise provide affordable housing stock. Owner waives any right it may have to claim that this Deed Restriction violates C.R.S. § 38-12-301. More detailed information regarding the management and maintenance of the AH Units shall be provided to APCHA with the proposed Deed Restrictio prior to Certificate of Occupancy. The Owner shall have the right to rent the AH Units to tenants qualified under the APCHA Guidelines. If the Owner cannot provide a qualified tenant, the AH Units and/or Unit shall be rented through APCHA's normal advertising process. At no time shall the tenancy of the AH Units and/or Unit be tied to continued employment by the Owner. Tenant leases, however, may be terminated for cause or at the end of the lease period upon termination of employment. day i (t�pdo4 Any tenant in the AH Units shall be required to be re -qualified by APCHA on a yearly basis. If the Owner elects to any of" e AH Units, or any of the AH Units are required to be sold due to noncomplfanc er shall condominiumize the AH Units and/or Unit and form a condominium association for the management and maintenance thereof. The u, affordable h€-using, association shall be separate from the free-market residential unit's and commerciail'unit's association(s). In they event , he AH Units and/or Unit is required to become ownership unit due to noncotriplian 'e, APCHA or the City may elect to purchase them for rental to qualified tenant -in accordance with APCHA Guidelines. s 2.6 Trash/Utility Service Area. Pursuant to Resolution 17, the HPC found that the Owner has demonstrated, that given the nature of the potential uses of the building and its total square footage, the utility/trash/service area proposed and shown on Exhibit B, including but not limited to access to the utility/trash/service area, is adequate. 2.7 Fire Mitigation. All codes adopted by the Aspen Fire Protection District shall be met. This includes but is not limited to approved fire 4 sprinkler and fire alarm systems (IFC, as amended, Sections 903 and 907). 2.8 Utilities. All requirements of the City's most recently Adopted Water System Distribution Standards must be met. Fire suppression is required. Fire flow calculations are required to confirm service size. Additionally, electrical service should be discussed immediately with the Electric Department to ensure System capacity. If there is not system capacity it may be necessary for the Owner to place a transformer on site. The transformer shall meet all pertinent electrical codes and all City electrical setbacks. 2.9 Sanitation District Requirements. (a) Service is contingent upon compliance with the Aspen Consolidated Sanitation District's ("ACSD") rules, regulations, a ifications, which are on file at the District office. ACSD will review the appro d inage plans to assure that clear water connections (roof, foundation, per itri drains) are not connected to the sanitary sewer system. (b) Oil and Grease interceptors (NOT traps) are required for all food processing establishments; locations of food processing shall be identified prior to building permit; even though the commercial space will be tenant finished, interceptors will be required at the time of building permit submittal if food processing establishments are anticipated for this Project. ACSD :will not approve service to food processing establishment retrofitted for this use', - the small under count TRAPS at a later date e,r (c) Permanent irr ovements are prohibited in sewer easements or right of ways. (d) Landscing plans will require approval by ACSD where soft and hard landscaping may`i�4act pulc ROW or easements to be dedicated to the district. p 2.10 Exterio;k&ghting. All exterior lighting shall meet the requirements of the City's Outdoor Lightinetode pursuant to Land Use Code Section 26.575.150, Outdoor Lighting. 2.11 School Lands Dedication Fee. Pursuant to Land Use Code Section 26.620, School Lands Dedication, the Owner shall pay a fee -in -lieu of land dedication prior to building permit issuance. The City Community Development Department shall calculate the amount due using the calculation methodology and fee schedule in effect at the time of building permit submittal. The Owner shall provide the market value of the land including site improvements, but excluding the value of structures on site. o.J 2.12 Impact Fees. Pursuant to Land Use Code Section 26.610, Impact Fees, the ATpiirT t shall pay a Parks Development impact fee and a Transportation Demand Management (TDM)/Air Quality impact fee assessed at the time of building permit 5 0 0 application submittal and paid at building permit issuance. The amount should be calculated using the methodology and fee schedule in effect at the time of building permit submittal. 2.13 Disclosure of Mixed -Uses and Location in the Commercial Core -("CC") Zone District. The Owner shall include in its Covenants, Conditions and Restrictions a notice that will be distributed to future residential owners and tenants of the project, which shall explain the nature of residing in the Commercial Core ("CC") zone district. As part of any sale of the residential unit(s), the buyer of the residential property shall be required to: 1. Acknowledge he/she resides in the CC zone district and is aware of the types of uses permitted in the CC zone district; 2. Acknowledge extended hours of operation for commercial and other permitted uses in the CC zone district; 3. Acknowledge there will be possible noise emang from such uses throughout the day and nights; 4. Agree not to interfere with or object to activities lawfully permitted in the CC zone district; and 5. Agree not to attempt to prevent any allowed and lawful commercial uses in the CC zone district from opening or operating in the commercial spaces for the Project. The foregoing shall be contained in a permanent restrictive covenant or deed restriction made for the benefit of the Owner and the City, running with the land and enforceable by the Owner or City. 'All of these risks, costs, hardships and potential value diminution resulting form this covenant as to any owner, resident, or occupant of the premises has been freely accepted as consideration for the opportunity to own, reside, maintain, use and enjoy the Property. This covenant shall be binding upon all owners, residents, and others who occupy the premises and shall inure to the benefit of the City. The owners, residents, and others who occupy the premises acknowledge that any anticipated damages in case of any actual or threatened breach of this covenant would be difficult to ascertain; accordingly, any party aggrieved by a violation of this covenant may bring action at law or in equity, ex parte as necessary, in a court of competent jurisdiction, to enforce the terms of this covenant and to enjoin by temporary or permanent injunction any violation of this covenant. Enforcement of this covenant shall be at the sole discretion of the beneficiaries of the covenant and any forbearance to exercise its rights under this covenant for any breach thereof shall not be deemed or construed to be a waiver by any beneficiary of the covenant. All reasonable costs incurred by the beneficiary, including reasonable attorneys fees, in enforcing this covenant shall be borne by the party found to have violated the covenant. This covenant shall not be amended without the prior written consent of the City. n The owner shall also include in its Covenants, Conditions and Restrictions the following: No provision within these covenants shall prohibit any use, occupation or activity within the premises that complies with underlying zoning. This provision may not be amended without express consent of the City. ARTICLE III VESTED PROPERTY RIGHTS The development approvals granted herein shall constitute a site -specific development plan and a vested property right pursuant to Land Use Code Section 26.308.011 attaching to and running with the Subject Property and shall confer upon the Owner the right to undertake and complete the site specific development plan and use of said property under the terms and conditions of the site specific development plan including any approved amendments thereto. The vesting period of these vested property rights shall be for three (3) years which shall not begin to run until the date of the publications required to be made as set forth below. However, any failure to abide by any of the terms and conditions attendant to this approval shall result in the forfeiture of said vested property rights. Unless otherwise exempted or extended, failure to properly record all plats and agreements required to be recorded, as specified herein, within 1 year of the effective date of the Development Order shall also result in the forfeiture of said vested property rights and shall render the development order void within the meaning of § 26.104.050, Void Permits. Zoning that is not part of the approved site -specific development plan shall not result in the creation of a vested property right. X # Nothing in the appr"dvals ddntained in Ordinance 27 shall exempt the Development Order from aubsei"Zent reviews and approvals required by Ordinance 27 of the general rules, regulations and ordinances or the City of Aspen provided that such reviews and approvals are not inconsistent with Ordinance 27. p ARTICLE IV FINANCIAL GUARANTEES 4.1 1 Financial Assurances. Before the Owner is issued a Building Permit the Owner shall provide to the Community Development Department the following: a. Proof of Financing. Before the issuance of a building permit for the development of the Property, and as a condition of such approval, Owner shall provide to the City Building Department and City Attorney for review and approval, satisfactory evidence that Owner has in place sufficient financing to accomplish and complete the construction of the development of the project covered by the building permit and any public improvements indentified within an this Subdivision Agreement and required under Ordinance 27; provided if there is no loan with respect to development of the 7 0 • Project, then Owner shall provide a letter from a financial institution stating that Owner has funds available in an amount that covers the estimated cost of construction for development. Such financing may include without limitation, a construction loan from an institutional lender or lenders and equity capital investments and/or donations from Owner or third party investors or contributors. In addition, before issuance of a building permit for the project, Owner shall provide supporting cost estimates for all improvements covered by the requested building permit prepared by Owner's general contractor for review and approval by the City Building Department. b. Cash Escrow for Site Enhancement Fund. I As a condittrt of the issuance of a building permit, Owner shall deposit with a title company the sum of TWO HUNDRED FIFTY THOUSAND DOLLARS AND NO/100THS ($250,000.00) (the "Site Enhancement Escrow Funds") in the form of cash or wired°`funds pursuant to an Escrow Agreement made and entered into between the Owner and the City which shall provide as follows: i. In the event construction work on the development of the Project shall cease for ninety (90) days or longer, prior to a final inspection by the City of the work authorized by a foundation/structural frame permit ("F/SFP") on said parcel and cessation of such construction work continues for a period of one hundred twenty (120) days after notice from the City to the Owner specifying the subject work in reasonable detail, or if such breach cannot be cured reasonably within such one hundred twenty (426y period and Owner fails to commence and proceed diligentle such breach within a reasonable time period, then the City, in its reas0able discretion, may draw upon the Site Enhancement Escrow Funds from time to time as needed for the purposes of improving the appearance of any construction work not already completed on the site. ii. The Site Enhancement Escrow Funds or any remaining balance tbereof shall be returned to the Owner, upon completion by the City of a final inspection and issuance of a Certificate of Occupancy for the parcel or when otherwise agreed to by Owner and the City. c. Cash Escrow for Site Protection. Before the issuance of a building permit faille Project, and as a condition of such issuance, the Owner will deposit with a title company the sum of TWO HUNDRED FIFTY THOUSAND DOLLARS AND NO/100THS ($250,000.00) ("Escrow Funds") in the form of cash or wired funds pursuant to an Escrow Agreement made and entered into between the Owner and the City which shall provide as follows: i. In the event construction work on the development of the Project shall cease for sixty (60) days or longer ("Work Stoppage"), prior to a final inspection by the City of the work authorized by a F/SFP on such M 0 • lot, and cessation of such construction work continues for a period of thirty (30) days after notice from the City to Owner specifying the subject work in reasonable detail, or if such breach cannot be cured reasonably within such thirty (30) day period and the Owner fails to commence and proceed diligently to cure such breach within a reasonable time period, then the City in its reasonable discretion may draw upon the Escrow Funds from time to time as needed for the purposes of protecting and securing construction the construction site and improvements thereon from damage by the elements and/or from trespass by unauthorized persons, and for purposes of improving the site to a safe condition such that it does not become an attractive nuisance or otherwise pose a threat to neighbors or other persons. ii. Half of the Escrow Funds shall be returned to the Owner upon co pletion by the City of a final inspection of the work authorized by the 1�FP on the Project. The balance of funds shall be returned to the Owner once exterior finishes to the building have been installed ARTICLE V NON-COMPLIANCE AND REQUEST FOR AMENDMENTS OR EXTENSIONS In the event that the City Council determines that Owner is not acting in substantial compliance with the terms of this Subdivision Agreement, the City Council shall notify Owner in writing specifying the alleged non-compliance and asking that Owner remedy the alleged non-compliance within such reasonable time as the City Council may determine, but not less than 30 days. If the City Council determines that Owner has not complied within such time, the City Council may issue and serve upon Owner a written order specifying the alleged non-compliance and requiring Owner to remedy the same within thirty (30) days. Within twenty (20) days of the receipt of such order, Owner may file with the City Council either a notice advising the City Council that it is in compliance or a written petition requesting a hearing to determine any one or both of the following matters: i r - Whether the alleged non-compliance exists or did exist, or (b) Whether a variance, extension of time or amendment to this 4division Agreement should be granted with respect to any such non- compliance which is determined to exist. Upon the receipt of such petition, the City Council shall promptly schedule a hearing to consider the matters set forth in the order of non-compliance and in the petition. The hearing shall be convened and conducted pursuant to the procedures normally established by the City Council for other hearings. If the City Council determines by a preponderance of the evidence 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 0J 0 • of permits and/or certificates of occupancy, as applicable; provided, however, no order shall terminate any land use approval. The City Council may also grant such variances, extensions of time or amendments to this Subdivision Agreement as it may deem appropriate under the circumstances. The parties expressly acknowledge and agree that the City Council shall not unreasonably refuse to extend the time periods for performance hereunder if Owner demonstrates by a preponderance of the evidence 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 Owner, despite good faith efforts on its part to perform in a timely manner. ARTICLE VI 404 GENERAL PROVISIONS APO g� 6.1 The provisions hereof shall be binding upon and in e to the benefit of Owner and City and their respective successors and assigns. 4� 6.2 This Subdivision Agreement shall e- bject to and construed in accordance with the laws of the State of Colorado. 6.3 If any provision of this ub = ision Agreement or any paragraph, sentence, clause, phrase, word, or se0on or;'!he k pplication thereof in any circumstance is invalidated, such invalidity s#I not affewthe validity of the remainder of this Subdivision Agreement, and thelap �pation of any such provision, paragraph, sentence, clause, phrase, word, or sect any tither circumstance shall not be affected thereby. 6.4 This Subdivision Agreement and any Exhibits attached hereto contain the entire understanding between the parties hereto with respect to the transactions contemplated hereunder. Owner, its successors or assigns, may, on its own initiative, petition the City Council for an amendment to this Subdivision Agreement or for an extension of one or more of the time periods required for performance hereunder. The City Council shall not unreasonably deny such petition for amendment or extension after considering all appropriate circumstances. Any such amendments or extensions of time shall,anly become effective upon the execution by all parties hereto that are affected by the proposed amendment. 6.5 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. 6.6 Upon execution of this Subdivision Agreement by all parties hereto, City agrees to approve and execute the Subdivision Plat pursuant to the terms of this Subdivision Agreement and to accept the same for recordation in the Office of the Clerk W 0 and Recorder of Pitkin County, Colorado, upon payment of the recordation fees by Owner. 6.7 Notices to be given to the parties to this Subdivision Agreement shall be considered to be given if hand delivered or if deposited in the United States Mail 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: CITY: City of Aspen City Manager 130 South Galena Street Aspen, CO 81611 OWNER: John Martin Box 297 ` Queenstown, NZ With Copy to: Leonard M. Oates, Esq. Oates, Knezevich, Gardenswartz, Kelly & Morrow, P.C. 533 E. Hopkins Avenue Aspen, CO 1611 6.8 This Subdivision Agreemen 'may be executed in counterparts, in which case all such counterparts together shall constitute one and the same instrument which is binding on all of the parties thereto, notwithstanding that all of the parties are not signatory to the original or the -same c&terpart. Facsimile signatures shall be treated as original signatures hereon,-1= , , 9 m 6.9 The terms, conditions, provisions and obligations herein contained shall be deemed covenants that run with and burden the Duvike Condominium Subdivision and any and all owners thereof or interests therein, their respective successors, grantees or assigns, and further shall inure to the benefit of and be specifically enforceable by or against the parties hereto, their respective successors, grantees or assigns. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the day and year first above written. CITY: City of Aspen, Colorado, a Colorado municipal corporation Steve Skadron, Mayor Attest: E 0 Linda Manning, City Clerk APPROVED AS TO FORM: James R. True, City Attorney OWNER: STATE OF COLORADO ) COUNTY OF PITKIN ) CM, LLC The foregoing instrument was acknowledged before me this day of 2014, by Steve Skadron, as Mayor and Linda Manning, as City Clerk of the City of Aspen, Colorado, a municipal corporation. Witness my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this 2014, by John Martin, of Member of CM, LLC. Witness my hand and official seal. My commission expires: day of . as a 12 0 Notary Yublic 13 0 CONSENT OF MORTGAGEE The undersigned, being the holder of a lien on the property comprising the Duvike Condominium Subdivision pursuant to a Deed of Trust recorded as Reception No. 524601 in the Office of the Clerk and Recorder of Pitkin County, Colorado, hereby consents to and approves the recording of this Subdivision Agreement for the Duvike Condominium Association. Dated this day of 12014. ALPINE BANK STATE OF COLORADO ) )ss COUNTY OF PITKIN ) The foregoing Consent A gagee was acknowledged before me this day of 2014, by as s,� of Alpine Bank, National Association. i. % Witness my hand and official seal. Notary Public 14