HomeMy WebLinkAboutFile Documents.121 E Hyman Ave.0149.2018 (125).ARBK LIMITED WAIVER OF HEIGHT RESTRICTION
THIS LIMITED WAIVER OF HEIGHT RESTRICTION (this "Limited Waiver") is
made as of the 44. day of FE6Qtt� , 2018, by and between SIX STONES, LLC, a
California limited liability company ("Six Stones"), and ANDREA CAYTON, TRUSTEE OF
THE ANDREA CAYTON 1996 TRUST DATED NOVEMBER 12, 1996, AS AMENDED
("Cayton").
Recitals
A. Reference is made to that certain Declaration of Height Restriction (the "Height
Restriction") dated as of October 23, 1987 and recorded on October 26, 1987 in Book 549 at
Page 169 in the real estate records of Pitkin County, Colorado (the"Records").
B. The Height Restriction established upon and over Lots E and F, Block 69, City
and Townsite of Aspen, County of Pitkin, State of Colorado (now known as Lots A and B, Ute
West Townhomes, pursuant to the Plat of Ute West Townhomes recorded in Plat Book 58 at
Page 17 of the Records) (the "Restricted Property") a view plane limiting the height of any
building, structure, or land use on the Restricted Property for the benefit of certain property (the
"Benefitted Property")more particularly described as follows:
Units 1 and 2 of the Corkscrew Duplex Condominiums according to the
Map thereof appearing in the records of the County Clerk and Recorder of
Pitkin County, Colorado, in Plat Book 13 at Page 46, and as defined and
described in the Declaration for Corkscrew Duplex Condominiums
recorded in Book 427 at Page 188 of the records of the County Clerk and
Recorder for Pitkin County, Colorado.
C. Cayton is the current owner in fee simple of Lot A of the Ute West Townhomes,
which (the "Cayton Property"). The Cayton Property comprises the western portion of the
Restricted Property.
D. A prior owner of the Benefitted Property previously granted a limited waiver (the
"2002 Waiver") of the Height Restriction for the benefit of the Cayton Property with respect to
certain encroachments (the "Existing Encroachments") as described in and pursuant to that
certain Waiver recorded in the Records on September 13, 2002 at Reception No. 472269. The
Existing Encroachments allowed by the 2002 Waiver currently exist on the Cayton Property in
its as-built condition.
E. Six Stones is the current owner in fee simple of the Benefitted Property and is the
successor in interest to the benefits of and right to enforce the Height Restriction.
F. Six Stones has agreed to an additional limited waiver of the Height Restriction for
the purpose of permitting the expansion and remodeling of the improvements on the Cayton
Property in accordance with the height and massing indicated on the architectural plans attached
to this Limited Waiver as Exhibit A (the "Approved Plans"). The Approved Plans include and
incorporate the one area of encroachment identified in the 2002 Waiver that will remain i>aOFT
WED
i_ •1••P
{A0110664 8} 1 5/23/2018
ASPEN
BUILDING DEPARTMENT
As an express condition precedent to commencing any on-site work on the Approved Plans,
Cayton has agreed to remove certain trees from and adjacent to the Cayton Property in
consideration for Six Stones' limited waiver of the Height Restriction.
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged,the parties agree as follows:
1. Six Stones hereby approves of the expansion and remodeling of the improvements
on the Cayton Property in accordance with the height and massing indicated on the Approved
Plans and agrees and declares that the Height Restriction is hereby waived on a limited basis to
permit and accommodate such height and massing in accordance with the Approved Plans. This
Limited Waiver shall run with the land for the benefit of the Cayton Property and Cayton and the
future owners of the Cayton Property. The limited waiver of the Height Restriction effected by
this Section 1 will supersede the 2002 Waiver and the 2002 Waiver will be deemed terminated
upon completion of the expansion and remodeling of the improvements on the Cayton Property
in accordance with the height and massing indicated on the Approved Plans.
2. Cayton shall use best efforts to obtain the permits required from the City of Aspen
for the removal of those trees on and adjacent to the Cayton Property depicted and labeled for
removal on Exhibit B of this Limited Waiver. Conditioned on the City of Aspen issuing such
permits, Cayton agrees that in connection with, and prior to commencement of, any construction
work associated with the expansion and remodeling of the townhome residence on the Cayton
Property to be undertaken by Cayton pursuant to the Approved Plans with the exception of
"Interior Finish and Fixture Removal" work undertaken pursuant to a permit therefore in
preparation for such expansion and remodeling work, that Cayton shall remove such trees from
and adjacent to the Cayton Property. Such obligation shall run with the land for the benefit of
the Benefitted Property and Six Stones and the future owners of the Benefitted Property.
3. The parties recognize and acknowledge that the Height Restriction prohibits trees,
shrubs,hedges and landscaping from projecting into the view plane, but with the passage of time,
certain trees on the Restricted Property which are not subject to tree removal permits described
in Paragraph 2 above have grown and now project into the view plane, and that current City of
Aspen regulations prohibit the trimming or removal of these trees. Accordingly, Six Stones shall
not require Cayton to trim these trees to bring them into compliance with the Height Restriction;
provided, however that Cayton hereby covenants and agrees that any future trees and shrubs
planted on the Cayton Property shall be of a species, type or variety which at full maturity will
not grow to a height that violates the Height Restriction.
4. The parties further recognize that the elevations used in the Height Restriction
were based on the United Sates Coast and Geodetic Survey (USC&GS) benchmark located at the
southwesterly corner of the Pitkin County Courthouse foundation at an elevation of 7,906.80
above mean sea level, which corresponded to an elevation of 7,903.30 feet for the mean
elevation of the existing grade of the front yard setback line of the Restricted Property and an
elevation of 7,904.80 feet for the mean elevation of the existing grade of the rear yard setback
line of the Restricted Property. With technological advancements in land surv
LIVED
{A0110664/8} 2 5/23/2018
ASPEN
BUILDING DEPARTMENT
methodologies for establishing mean sea level measurements, the existing grades of the
Restricted Property's front yard setback line and rear yard setback line are now recognized to be
measured at a current survey equivalent of 7,908.61 feet above mean sea level and 7,910.11 feet
above mean sea level, respectively. These current survey equivalents are included and shown on
the Approved Plans. Notwithstanding the forgoing, the parties agree and acknowledge that the
intent and purpose of the Height Restriction was and is to impose a view plane over and above a
horizontal plane measured twenty feet (20') above current survey elevation of 7908.61' of the
Restricted Property's front yard setback line and twenty-five feet (25') above current survey
elevation of 7910.11' of the Restricted Property's rear yard setback line.
5. Except as expressly modified herein, the Height Restriction shall remain in full
force and effect. The limited waivers set forth in the 2002 Waiver and this Limited Waiver apply
only to the Cayton Property and do not apply to any other portions of the Restricted Property.
To the extent there are any conflicts between or among the terms and conditions of this Height
Restriction, the 2002 Waiver and this Limited Waiver, this Limited Waiver shall control and
govern.
6. This Limited Waiver shall be recorded in the Records within 5 business days after
Cayton obtains the permits required from the City of Aspen for the removal of the specified trees
on and adjacent to the Cayton Property pursuant to Section 2 above. If the City issues a final
decision refusing to issue the required permits to remove such trees, then this Agreement shall
terminate and the 2002 Waiver shall remain in full force and effect.
[remainder of this page left blank intentionally]
RECEIVED
{A0110664 8} 3 5/23/2018
ASPEN
BUILDING DEPARTMENT
IN WITNESS WHEREOF, the parties have executed this Limited Waiver as of
date first above written.
SIX STONES, LLC, a California limited
liability company
By: dl.L.`f
Clint John one, M ager
CERTIFICATE OF ACKNOWLEDGMENT OF NOTARY PUBLIC
A notary public or other officer completing this certificate verifies
only the identity of the individual who signed the document to which
this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF COLORADO
COUNTY OF PITKIN
On February 27, 2018, before me,' pc.o . SOON. , personally
appeared Clint Johnstone, Manager of Six Stones, LLC, who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and that by his
signature on the instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
Q
Signature of Notary Public
[NOTARIAL SEAL] My commission expires: 10/a{ f a-o%-
STEPHANIE STACH
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20094034010
MY COMMISSION EXPIRES 110/212021
RECEIVED
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ASPEN
BUILDING DEPARTMENT
ANDREA CAYTON, TRUSTEE OF THE
ANDREA CAYTON 1996 TRUST DATED
NOVEMBER 12, 1996,AS AMENDED
An. ayton, Trustee
CERTIFICATE OF ACKNOWLEDGMENT OF NOTARY PUBLIC
A notary public or other officer completing this certificate verifies
only the identity of the individual who signed the document to which
this certificate is attached, and not the truthfulness, accuracy, or
validity of that document.
State of CAU Fof.f.i A
County of L-O 0 1 -5
On F r jAML\/ ,20 I before me, b-►2is-riNr AWAI ,Qte'c at_—WWI+E z(S
personally appeafed �l�p�Ql; ('Ayr l� ,who proved to me on the
basis of satisfactory evidence to be the personMwhose name06 is/au subscribed to the within
instrument and acknowledged to me that 1X/she/tIIi6 executed the same in 1 ,s/her/tl it
authorized capacity(, and that by h /her/th 'r signature( on the instrument the person(j, or
the entity upon behalf of which the person(acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public ,� I
[NOTARIAL SEAL] My commission expires: I v d V 61
.wa.-an A AA N An A Q.
7 .• "�. CHRISTINE ANN BLEIER-WHEELIS
Comm.No.2172871 c
. `• NOTARY PUBLIC-CAUFORNIA
`�` .` t LOS ANGELES COUNTY
l My Comm.Exp.NOV.20.20-20 Cr
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RECEIVED
{A0110664/8} 5 5/23/2018
ASPEN
BUILDING DEPARTMENT
EXHIBIT A
Approved Plans
[see attached]
RECEIVED
{A0110664/8} Exhibit A 5/2 3/2 018
ASPEN
BUILDING DEPARTMENT
4
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BUILDING DEPARTMENT
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ASPEN
BUILDING DEPARTMENT
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EgUIVALENT) EXTERIOR ELEVATIONS
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ASPEN
BUILDING DEPARTMENT
EXHIBIT B
Trees to be Removed from Cayton Property
[see attached]
10636928 2
RECEIVED
(A0110664 8) Exhibit B 5/2 3/2 018
ASPEN
BUILDING DEPARTMENT
EXHIBIT 'B'
TREES TO BE REMOVED
UTE WEST TOWNHOMES LOT A
SITUATED ON LOTS E&F BLOCK 69,CITY&TOWNSITE OF ASPEN,
PITKIN COUNTY,COLORADO
TREES SLATED FOR REMOVAL
#1-11"COTTONWOOD ON PUBLIC RIGHT-OF-WAY NEAR STREET CURB
#2-7"SPRUCE ON LOT A NEAR NORTHWEST PROPERTY CORNER
#3-8"SPRUCE ON LOT A NEAR NORTHEAST PROPERTY CORNER
#4-7"ASPEN ON PUBLIC RIGHT-OF-WAY NEAR NORTH PROPERTY LINE
#5-5"ASPEN ON PUBLIC RIGHT-OF-WAY NEAR NORTHEAST PROPERTY CORNER
#6-SMALL ASPEN NEXT TO#5 ASPEN
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ECEIVEt
_ _ � / 5/23/2018
ASPEN
BUILDING DEPARTMENT