HomeMy WebLinkAboutFile Documents.200 S Aspen St.0007.2017 (25).ACBK DEVELOPMENT ACREEMENT
FOR
THE HOTEL LENADO
THIS DEVELOPMENT AGREEMENT (this "Agreement") dated as of January if,
2017 (the "Effective Date"). is made by and between DCBD2. LLC. a Delaware limited
liability company ("Developer")and the CITY OF ASPEN. COLORADO (the"City").
RECITALS
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WHEREAS Developer intends to develop that real property situated in the City of Aspen,
Colorado described as Block 75.Lots A.through C.and commonly known as 200 S.Aspen Street.
City of Aspen Development(the"Property"):
WHEREAS the Developer received approval from the Planning and Zoning Commission
for Growth Management and Conceptual Commercial Design Review on November 17. 2015 via
Resolution No.20(Series 2015):and
WHEREAS. on March 15, 2016. the Planning and Zoning Commission reconsidered its
approvals granted by Resolution No. 20 (Series 2015) and reaffirmed the approvals in the
Resolution with minor changes to the Conceptual Commercial Design:and
WHEREAS. on October 18, 2016. the Planning and Zoning Commission granted Final
Commercial Design Review as specified and approved in Resolution No. 9(Series 2016): and
WHEREAS,on January 10.2017.the City Council adopted Resolution No.4(Series 2017)
revoking any and all condominium declarations,maps.and plats associated with the Property such
that the Property is no longer condorniniumized or subject to either a Condominium Declaration
or Condominium-Plat: and
WHEREAS, on January 10, 2017, the City Council further approved the Revocation of
Condominium Declaration and the Statement of Exception for 200 S. Aspen Street. Commonly
Known as the Hotel I,enado. which Revocation ocxnents are recorded in the real property
records of Pitkin County at Reception Nos. 6.55 lb and 6355' g1 6 : and
WHEREAS. on January 10. 2017.. the City Council approved the Restated Covenants,
Conditions and Restrictions for the Ho el Lenado as recorded in the real property records of Pitkin
County at Reception No. 5 : and
WHEREAS Aspen's Land Use Code (the "Code") requires the execution of"development
agreements" by the City and the execution of this Agreement is contemplated by Resolution No. 9
(Series of 2016):
NOW. THEREFORE, in consideration of the mutual covenants contained herein, and other
good and valuable consideration the sufficiency of which is hereby acknowledged. the parties agree
as follows:
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DOC CODE:AGREEMENT •
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Janice K. Vos Caudill, Pitkin County, CO
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ARTICLE I
PURPOSE AND EFFECT OF DEVELOPMENT AGREEMENT
1.1 Purpose. The purpose of this Agreement is to set forth the complete and comprehensive
understanding and agreement of the parties with respect to the development of the Hotel Lenado and
to enumerate or incorporate by reference all terms and conditions under which such development may
occur.
1.2 Effect. The parties acknowledge and agree that this Agreement shall be considered a
"Development Agreement" as that term is used in C.R.S. § 24-68-104(2). It is the intention of the
parties that this Agreement shall effectively supersede and extinguish in their entirety all previously-
recorded subdivision, condominiumization and other agreements encumbering or affecting the
Property including, without limitation, those matters identified in Article I1 below (collectively the
"Prior Approvals and Instruments"), and the City and Developer agree to cooperate in the execution
and recording of such documents as may be necessary or appropriate to accomplish the vacation and/or
termination of said Prior Approvals and Instruments. In the event there is a conflict between this
agreement and any Resolution passed by the City,the resolution supersedes.
ARTICLE II
ZONING AND REGULATORY APPROVALS
2.1 Land Use Approvals. The City has granted the following land use approvals for the
Property(the"Approvals"):
a. Growth Management Review— Lodge Development, pursuant to Land Use Code
Chapter 26.470:
b. Growth Management Review — New Free Market Residential Units, pursuant to
Land Use Code Chapter 26.470;
e. Growth Management Review—Affordable housing. pursuant to Land Use Code
Chapter 26.470:
d. Growth Management Review — Demolition or redevelopment of multi-family
housing pursuant to Land Use Code Chapter 26.470:
e. Conceptual Commercial Design Review, pursuant to Land Use Code Chapter
26.412; and
f. Final Commercial Design Review.pursuant to Resolution No. 9(Series 2016).
Pursuant to C.R.S. §24-68-102.5.the foregoing Code citations reference and are governed by the duly
adopted laws and regulations of the City of Aspen and its Land Use Code in effect as of February 2,
2015 when the application for the Hotel Lenado Project was deemed complete.
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2.2 Incorporation of Approvals. The provisions of Resolution No. 20 (Series 2015),
Resolution No. 9(Series 2016).and Resolution No.4 (Series 2017)are incorporated herein and made
a part of this Agreement by reference.
2.3 Prior Approvals and Instruments. In furtherance of and to effectuate the Approvals,
the City and Developer intend to. and have executed documents revoking and/or superseding,certain
prior approvals and instruments previously recorded and/or executed which the parties desire to vacate
in their entirety. including:
a. Condominium Declaration for The Hotel Lenado Condominiums in the real
property records of the Pitkin County Clerk and Recorder in Book 445 at Page 814
(the"1983 Condominium Declaration");
b. Statement of Exception from Full Subdivision Process for the Purpose of
Condominiumization of The Hotel Lenado Condominiums ("Statement of
Exception-) was recorded on May 26, 1983 in 445 at Page 811 of the real property
records of the Pitkin County Clerk and Recorder:
c. Revocation of Condominium Declaration dated February 29, 1984 executed (but
not recorded) between the City of Aspen and LongRun Associates:
d. Declaration of Grants, Covenants. Conditions and Restrictions for Establishing a
Plan for Condominium Ownership for Hotel Lenado Condominiums dated
February 29, 1984 executed (but not recorded) between the City of Aspen and
LongRun Associates;
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ARTICLE III
DEVELOPMENT REQUIREMENTS AND RESTRICTIONS
3.1 Components of the Project. The various components and elements of the approved
development Project for the Hotel Lenado, referred to herein as the Hotel Lenado Project. are
described in detail in Resolution No. 20 (Series 2015) and Resolution No. 9 (Series 2016). Such
descriptions,which are incorporated herein by reference.generally include the following:
a. A multi-story mixed use building containing 4 lodge units and 9 keys.
h_ 2 free market residential units; %.
c. 2 affordable housing units; and
d. 9 off street parking spaces: and
e. Approximately 22 15.5 square feet of ground floor public amenity spaces.
3.2 Construction in Accordance with Plans. Construction of the Hotel Lenado Project.and
all of its component parts. shall he accomplished in substantial compliance with the Approvals.
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together with all architectural plans, elevations. utility plans. grading and drainage plans. site design
plans.and landscape plans that were presented to and reviewed by the City(the"Plan Set").This Plan
Set is recorded with the Pitkin County Clerk and Recorder at Reception No. .The Plan Set's
purpose is to provide an accurate representation of the approvals granted by the City of Aspen:
however, all final details including but not limited to engineering or dimensional standards shall be
confirmed and approved during the building permit application review. The Hotel Lenado Project
• shall be deemed to have substantially complied with the Plan Set with respect to all or any portion of
said Project upon issuance of a Certificate of Occupancy by the City for all or any portion thereof.
3.3. Construction Management Plan. All construction activities on the Property shall
comply with the Developer's Construction Management Plan. The Plan shall be submitted to the City
Engineer in conjunction with the Building Permit Application for the Project. The Plan must include
a description of the sequence and phasing of construction designed to minimize construction impacts
to the public. The Plan shall describe,at a minimum,management of parking.staging,encroachments.
truck and construction traffic during peak traffic hours and seasonal periods.noise, dust, erosion and 1
sediment pollution,and emergency access during construction.
ARTICLE IV
FINANCIAL ASSURANCES AND PERFORMANCE BONDS
4.1 Financial Assurances. Before the issuance of a Building Permit for any portion of the
Hotel Lenado Project,the Developer shall provide the Community Development Director and the City
Attorney, for their review and approval, not to be unreasonably withheld, satisfactory evidence that
Developer has in place sufficient financing to accomplish and complete the construction of the
approved elements and components of the Project, together with any and all public improvements or
amenities which arc required to be completed in connection with construction of the Hotel Lenado
Project.
The required financing for construction may include, without limitation, a construction loan
from an institutional lender or lenders and/or equity capital investment from DCBD2. LLC or third
party investors. Developer shall provide cost estimates for all improvements and construction
described in its building permit application, which shall be prepared by the contractor undertaking
such work. In addition. Developer at the time of issuance of the Building Permit shall provide the
Community Development Director and the City Attorney. for their review and approval. not to be
unreasonably withheld, Letters of Credit (other acceptable guarantee) securing the underlying
performance and obligations as described with more specificity in Sections 4.2 — 4.5 below. An
escrow agreement shall outline the procedure for the release of the guarantees and be finalized prior
to issuance of a building permit.
4.2 Site Protection Guarantee. Prior to the issuance of a building permit for the Hotel
Lenado Project.the Developer shall provide to the City an irrevocable letter of'credit from a financially
responsible lender in a form reasonably acceptable to the City Attorney and the City Manager pledging
the sum of Two Hundred Fifty Thousand Dollars($250.000.00)as a site protection guarantee securing
recovery of the Property and surrounding grounds to a sate condition in the event of a work stoppage.
The Letter of Credit shall recite as tiillows:
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In the event construction work on the Hotel Lenado Project shall cease for sixty (60) days or
longer("work stoppage") without a cure of such work stoppage after fifteen (15) days notice
by the City and such work stoppage not being a result of any event of force majeure,prior to a
final inspection by the City of the work authorized by the Foundation/Structural Frame Permit
on the Project,then the City in its discretion may draw upon the Letter of Credit from time to
time as needed for purposes of protecting and securing the Project site and improvements from
damage by the elements and/or from trespass by unauthorized persons. and for purposes of
improving the Project site to a safe condition such that it does not become an attractive nuisance
or otherwise pose a threat to neighbors or other persons.The Letter of Credit or any remaining
balance thereof shall be released to the Applicant upon completion by the City of a final
inspection of the work authorized by the Foundation/Structural Frame Permit on the Project.
The Letter of Credit including all unused funds secured thereunder shall be released to Developer
upon substantial completion of the Project to a"dried in-condition.
4.3 Site Enhancement Guarantee. Prior to the issuance of a building permit for the Hotel
I.enado Project.the Developer shall provide to the City an irrevocable letter of credit from a financially
responsible lender in a form reasonably acceptable to the City Attorney and the City Manager pledging
the sum of Two Hundred Fifty Thousand Dollars ($250.000.00) as a site enhancement guarantee
securing recovery of the site and surrounding grounds to a visually acceptable condition and for the
installation of public improvements on or adjacent to the Project site in a safe condition in the event
of a work stoppage. The Letter of Credit shall recite as follows:
in the event construction work on the Hotel Lenado Project shall cease for ninety(90)days or
longer("work stoppage") without a cure of such work stoppage after fifteen(15) days notice
bythe City and such work stoppage not beinga result of anyevent of force ma eure,prior to a
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final inspection by the City of the work authorized by any permit or phase of permit for the
Hotel Lenado Project.then the City in its discretion may draw upon the Letter of Credit from
time to time as needed for purposes of improving the appearance of any construction already
completed on or adjacent to the project site and for installing any public improvements on or
adjacent to the project site. The City shall have sole discretion with respect to the manner of
improving the appearance of construction work in progress as well as determining the public
improvements to be installed.
The Letter of Credit or any remaining balance thereof shall be released to the Applicant upon
completion by the City of a final inspection or issuance of a Certificate of Occupancy for the project.
or upon such earlier date as may be agreed to by the City.
4.4 Landscape Guarantee. Developer shall complete the landscaping of the Hotel Lenado
Project in accordance with the Final Landscape Plan no later than six(6)months following the issuance
of a Certificate of Occupancy. Developer shall be responsible for ensuring the success of all
landscaping installed pursuant to the Final Landscape Plan for a period of two(2)years following the
date of installation and shall replace any landscaping that fails during such two year period. Before a
Building Permit is issued.Developer shall provide the City Engineering Department and the City Parks
Department with a cost estimate for the proposed landscaping improvements prepared by a
landscaping contractor licensed in the State of Colorado. and the Engineering Department shall
approve the cost estimate. In order to ensure construction and installation of the landscaping
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improvements,and to guarantee 150 percent of the approved estimated cost thereof. Developer shall
provide to the City an irrevocable letter of credit from a financially responsible lender in a form
reasonably acceptable to the City Attorney and the City Manager granting the City the unconditional
right, upon default by Developer. to draw funds as necessary and upon demand to partially or fully
complete the landscaping.
4.5 Public Facilities and Infrastructure Guarantee Developer shall complete the public
. facilities and infrastructure of the Hotel Lenado Project in accordance with the Engineering plans prior
to issuance of a Certificate of Occupancy. Before a Building Permit is issued.Developer shall provide
the City Engineering Department with a cost estimate for the public facilities and infrastructure
components of the Project. In order to ensure timely completion of the public facilities and
infrastructure components of the Project.and to guarantee ISO percent of the approved estimated cost
thereof, Developer shall provide to the City an irrevocable letter of credit from a financially
responsible lender in a form reasonably acceptable to the City Attorney and the City Manager granting
the City the unconditional right. upon default by Developer, to draw funds as necessary and upon
demand to partially or fully complete the public facilities and infrastructure components of the Project.
ARTICLE V
VESTED RIGIITS
5.1 Developer's Vested Rights. As set forth in the Approvals,the Property has obtained
Site Specific Development Plan approval as that term is defined and used in C.R.S. § 24-68-101 el
seq. The City and Developer agree that all rights of Developer granted, recognized and confirmed
in the Approvals constitute"Vested Property Rights",as such term is defined in the Code. Unless
expressly provided to the contrary in any subsequent approval. modification or amendment, all
modifications and amendments to the Resolutions or any other Approval, agreements or material
related to the development of the Property shall become part of the Vested Property Rights
recognized hereunder automatically upon Approval and execution by the City and such vesting shall
last throughout the term of the Vested Property Rights.
(a) The City shall not enforce against Developer any zoning, land use;or other
legal, administrative rule, regulation, ordinance, resolution or requirement that does not apply to
the Property as of January 9. 2017. or otherwise take any other action that would directly or
indirectly have the effect of impairing. preventing. diminishing, imposing a moratorium on
development, or otherwise delaying the development or use of the Property in accordance with
this Agreement. City resolutions.or records of decision specifically applicable to the Property.
(b) Notwithstanding the foregoing. the Vested Property Rights recognized
herein shall not exempt Developer from requirements for building permits.other necessary permits
or other approvals required subsequent to the approval of the development of the Property (as
required by the Code in effect as of January 9. 2017). The establishment of the Vested Property
Rights shall not preclude the application of the requirements of the building code.green building
code, fire code, plumbing code. electrical code. the mechanical code or of any regulations
specifically adopted to correct or mitigate natural or man-made hazards on'or in the immediate
vicinity of the Property. which hazards could not reasonably have been discovered at the time the
Ordinance and any related City resolutions or records of'decision specifically applicable to the
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Property were approved, all as more particularly described in Section 24-68-105 of the Colorado
Revised Statutes.
(c) The establishment of a vested propert► right shall not preclude the
application of ordinances or regulations which arc general in nature and arc applicable to all
property subject to land use regulation by a local government. including. but not limited to.
building, lire. plumbing.electrical. and mechanical codes.
5.2 Duration. Developer's vested rights shall expire after three years.on January 9. 2020.
5.3 Termination of Vested Property Rights. Notwithstanding the foregoing, the Vested
Property Rights granted under this Agreement will not be automatically extended but will
automatically terminate if the Developer is subject to an Event of Nonperformance as to any of such
tasks or work described are not performed on or before the applicable deadline(s), or any event of
Default, and in such event the termination of the Vested Property Rights granted under Article I of
this Agreement is not a compensable taking and such termination is specifically agreed to not be a
compensable taking. but rather an agreed upon consequence of non-performance by the applicable
deadline(s).
ARTICLE VI
DISPUTE RESOLUTION
6.1 Default and Cure. In the event that the City determines that Developer is not acting
in substantial compliance with the terms of this Agreement, the City shall notify Developer in
writing.specifying the alleged non-compliance and demanding that Developer remedy the alleged
non-compliance within such reasonable time that the City may determine,but not less than 30 days.
If the City determines that Developer has not complied within such time. the City may issue and
serve upon Developer a written order specifying the alleged non compliance and requiring
Developer to remedy the same within 30 days. Within twenty(20)days of the receipt of such order,
Developer may file with the City either a notice advising the City 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 Agreement should
be granted with respect to any non compliance which is determined to exist.
Upon receipt of such petition, the City shall promptly schedule a hearing before the City Council
which hearing shall be conducted pursuant to standard parliamentary procedures of the Council.
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4.1 Third Party Challenges. In the event of any Legal Challenge by a third party to the
validity or enforceability of any provision of this Agreement. the Parties will cooperate in the
defense of such challenge. but will bear their own costs and attorneys" fees. Unless otherwise •
provided herein. during the pendency of any such Legal Challenge, the Parties will abide by and
carry out all of the terms of this Agreement. unless otherwise ordered by a court of competent
jurisdiction.
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4.2 Attorney Fees. Notwithstanding anything to the contrary contained in this
Agreement, if either party institutes legal proceedings against the other with respect to this
Agreement. the non- prevailing party shall pay to the prevailing party an amount equal to all
attorneys' fees and disbursements and all other costs and expenses incurred by the prevailing party
in connection therewith,including,without limitation,the fees and disbursements of any attorneys.
accountants,engineers,appraisers or other professionals engaged by the prevailing party.whether
incurred before or at trial, on appeal. in bankruptcy or in post judgment collection.
ARTICLE VII
MISCELLANEOUS
7.1 Entire Agreement. This Agreement contains the entire agreement between the Parties
• and no statement. promise or inducement made by either Party or the agent of either Party that is
not contained in this Agreement will be valid or binding.
7.2 Binding Effect.This Agreement shall be binding upon the parties and shall inure to
the benefit of each party's successors and assigns. as designated by a written assignment recorded
in the Pitkin County Clerk and Recorder's Office.
7.3 Amendment of this Agreement. This Agreement may he amended, terminated or •
superceded only by mutual consent in writing of the Parties, following the Town's public notice and
public hearing procedures required for approval of this Agreement. No consent of any third party
will be required for the negotiation and execution of any such amendment. This Agreement may not
be terminated,modified or amended. nor may waivers hereunder be granted.except in writing and
only with the consent and approval of Developer and the City.
7.4 Burden and Benefits. Each of the benefits, burdens. terms. covenants, agreements
and conditions of this Agreement shall be construed as covenants running with the land benefiting
and burdening the Property or any applicable portion thereof and it is the intent of the parties that
such benefits, burdens, terms, covenants, agreements and conditions touch and concern such
property.
7.5 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Colorado.
7.6 Scope of Agreement. The rights granted to Developer by this Agreement are in
addition to any other right held by Developer under applicable law.
7.7 Severability. If any provision of this Agreement shall he invalid, illegal, void or
unenforceable, it shall not affect or impair the validity, legality or enforceability of this Agreement
or any other provision hereof, and a court shall enforce this Agreement to the maximum extent
legally possible -to give effect as nearly as possible to the original intent of the City and Developer
as expressed in this Agreement. if any provision of this Agreement is invalid. illegal. void or
unenforceable not in its entirety but as applied to a particular act, thing or circumstance. such
provision shall not affect or impair the validity, legality or enforceability of this Agreement or any
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provision hereof as applied to any other act, thing or circumstance, and a court shall apply such
provision and enforce this Agreement to the maximum extent legally possible to give effect as
nearly as possible to the original intent of the City and Developer as expressed in this Agreement.
7.8 No Third Party Beneficiaries/Third Party Agreements. Nothing expressed or implied
in this Agreement is intended or will be construed to confer upon, or to give to, any legal person
other than the Parties, any right, remedy, or claim under or by reason of this Agreement or any
covenants,terms,conditions,or provisions thereof,and all of the covenants, terms,conditions,and
provisions in this Agreement by and on behalf of the Parties will be for the sole and exclusive
benefit of the Parties. Nothing in this Agreement is intended to interfere with the agreements of the
Parties with third parties.
7.9 Further Assurances. Each Party will execute and deliver such documents or
instruments and take such action as may be reasonably requested by the other Party to confirm or
clarify the intent of the provision hereof and to effectuate the agreements herein contained and the
intent hereof.
7.10 Notices. Any notice to he given to Developer or the City under this Agreement shall
be given by registered or certified mail, overnight courier. teiecopy,telegram or hand delivered to
the address of the party to whom notice is being given. Any notice sent by registered or certified
mail will be deemed to have been received three business days following the date of mailing. Any
notice sent by overnight courier will be deemed to have been received one business day following
the date of delivery to the overnight courier. Either party may change its address for notice by
advising the other party in writing of such change,and until the other party is so advised, it will be •
entitled to continue sending notices to the last address it is advised of in writing:
If to the City: City of Aspen
City Attorney's Office
130 S. Galena Street
Aspen,Colorado 81611
Attention: City Manager
If to Developer: DCBD2. LLC
Attention: Chris Madigan
2100 Ross Avenue. Suite 800
Dallas,Texas 75201
With a copy to: Peter W Thomas,Esq.
39 Boomerang Rd. Ste 8130 •
Aspen.Colorado 81611
7.11 Recording. Developer and the City each shall have the right to record this Agreement
in the records of the office of the Clerk and Recorder of Pitkin County,Colorado.
7.12 Captions and Titles. All captions and titles of headings of Articles and Sections in this
Agreement are for the purpose of reference and convenience and are not to be deemed to limit,
modify or otherwise affect any of the provisions hereof or to be used in determining the intent or
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{
context thereof.
7.13 Exhibits. All exhibits to this Agreement will be incorporated herein and deemed a
part of this Agreement. In the event of any conflict between a term,condition or provision of this
Agreement and a provision of the City's Municipal Code.the terms of this Agreement shall control.
(Remainder of Page Intentionally Left Blank)
ISKINA I l'RES C()NTINUE ON I'()I.I.OWING PAGES I
773
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[N WITNESS WHEREOF. the parties have caused this Development Agreement to be
signed on the date set forth below to be effective as of the date written above.
CITY OF SPLN
Name: St. e Barwick
1 itle: ('its Manager
Date: - ' /7
APPROVED AS TO FORM:
Andrea lirvan. Assistant C'it' Attorney
_
' E
STATE OF COLORADO
} ss.
COUNTY OF PITKIN
The foregoing instrument was acknowle j •ed bel re me this 2..Kei day of
4lrutxfti , 2017. by gkeiikt4 •' ' •s et of the City of Aspen.
Colorado.
WITNESS MY HAND AND OFFICIAL SEA[..
My commission expires:
- rie-ejt,U'Mil SCi/V\-.
TARA L. NELSON
NOTARY PUBLIC Notary Public
STATE OF COLORADO
NOTARY ID 20014030017
MY COMMISSION EXPIRES 09/2512017
it
}
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WTTNESSEREOI',d1e pies have caused Develop
nt Agreement to be
signed o
n the date set forth below tot be effective as of the dthisate written amebove•
DEVELOPER:
DCBD2,LLC,
a Texas limited liability company
By:
Name: 1 DuNflot�t
Title: M R '1 Ni t' MFti1(3ER
STATE OF COLORADO )
)ss•
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this 11111 day of
"Ian u0.vy .2017,biRrn r&odis M�'^ of DCBD2,LLC,a Texas
limited liability company.
WITNESS MY HAND AND OFFICIAL SEAL.
My commission expires: LA l 14) 201 S
Notary Public
SARAH ELIZAIEIH FLtUh6E
Noiory Pubflo.Stole of rexae
My Commission Expires
January 14,2018
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