HomeMy WebLinkAboutcoa.lu.pu.Top of Mill parcels 4,7 & 8.0011.2005
,
City of Aspen Community Development Dept.
CASE NUMBER
0011.2005.ASLU
PARCEL 10 NUMBER 9999-99-9-99-999
PROJECT ADDRESS 0 ZERO
PLANNER
CHRIS
LEE
CASE DESCRIPTION PARCELS 4,7 & 8 TOP OF MILL SUBDIVISION / PUD EXTENSION
REPRESENTATIVE JODY EDWARDS 970-925-8700
DATE OF FINAL ACTION 3/23/2005
CLOSED BY Denise Driscoll
,.'.
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DEVELOPMENT ORDER
of the
City of Aspen
Community Development Department
This Development Order, hereinafter "Order", is hereby issued pursuant to Section 26.304.070,
"Development Orders", and Section 26.308.010, "Vested Property Rights", of the City of Aspen
Municipal Code. This Order allows development of a site specific development plan pursuant to
the provisions of the land use approvals, described herein. The effective date of this Order shall
also be the initiation date of a three-year vested property right extension period. The vested
property rights shall expire on the day after the third anniversary of the effective date of this
Order, unless a building permit is approved pursuant to Section 26.304.075, or unless an
exemption, extension, reinstatement, or a revocation is issued by City Council pursuant to
Section 26.308.010. After Expiration of vested property rights, this Order shall remain in full
force and effect, excluding any growth management allotments granted pursuant to Section
26.470, but shall be subject to any amendments to the Land Use Code adopted since the effective
date of this Order.
This Development Order is associated with the property noted below for the site specific
development plan as described below.
Parcel 4 Top of Mill. LLC: lP Interests. LLC: LPRP River. LLC; LPRP Mill. LLC:
Street. Suite 203. Aspen. Colorado 816111
Property Owner's Name, Mailing Address and telephone number
201 North Mill
970.925.8700
Parcels 4. 7 and 8 of the Top of Mill Subdivision/Planned Unit Development
Legal Description and Street Address of Subject Property
Approval of the extension of vested property rights and exemption from expiration of the single-
family residential land use rights
Written Description of the Site Specific Plan and/or Attachment Describing Plan
Citv Council Resolution No. 15. Series of2005. Approved 3/14/05
Land Use Approval(s) Received and Dates (Attach Final Ordinances or Resolutions)
March 27. 2005
Effective Date of Development Order (Same as date of publ ication of notice of approval.)
March 27. 2008
Expiration Date of Development Order (The extension, reinstatement, exemption from expiration and
revocation may be pursued in accordance with Section 26.308.010 of the City of Aspen Municipal Code.)
Issued this 27th day of March, 2005, by the City of Aspen Community
"'V,'opmc1\:;"'t&
Chris Bendon, Community Development Director
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PUBLIC NOTICE
Of
DEVELOPMENT APPROVAL
Notice is hereby given to the general public of the approval of the extension of vested
property rights and exemption from expiration of the single-family residential land use
rights pursuant to the Land Use Code of the City of Aspen and Title 24, Article 68,
Colorado Revised Statutes, pertaining to the following described properties: Parcels 4, 7
and 8 of the Top of Mill Subdivision/Planned Unit Development, by Resolution of the
Aspen City Council numbered 15, Series of 2005, on March 14, 2005. The Applicant
received approval for a three (3) year extension of the vested property rights pursuant to
Ordinance 7, Series of 2002, and an exemption from expiration of the single-family
residential land USe rights. For further information contact Chris Bendon, at the City of
Aspen Community Development Dept. 130 S. Galena St, Aspen, Colorado (970) 920-
5090.
sf City of Aspen
Publish in the Aspen Times on March 27,2005
MEMORANDUM
Vl\la
To: Mayor Klanderud and City Council
THRU: Chris Bendon, Community Development Director
10yce A. Allgaier, Deputy Directo~
FROM:
Chris Lee, Planner cJ.L
RE: Exemption from Expiration of Vested Rights for Parcels 4, 7 and 8 oCthe Top of
Mill SubdivisionlPUD
DATE: March 14, 2005
ApPLICANTS: Parcel 4 Top of Mill, LLC; JP Interests, LLC; LPRP River, LLC; and LPRP
Mill, LLC
REPRESENTED By: Joseph Edwards of Klein, Cote & Edwards, P.C.
PARCEL ID NUMBERS: 2737-182-02-204,2737-182-02-207,2737-182-02-208
LEGAL DESCRIPTION: Lots 4,7 and 8, Top of Mill Subdivision/PUD
CURRENT LAND USE: Vacant Parcels
PROPOSED LAND USE: Residential Single Family Dwelling with ADUs on each parcel
REVIEW PROCEDURE: Exemption from Expiration of Vested Rights and Extension of
Vested Rights. At a duly noticed public hearing City Council may, by resolution,
approve, approve with conditions, or deny, an exemption from the expiration of vested
rights. Council may also grant extensions of vested rights.
STAFF RECOMMENDATION: Staff recommends approval with conditions.
SUMMARY:
The applicants are the owners of parcels 4, 7 and 8 of the Top of Mill Subdivision/PUD and are
requesting an exemption from the expiration of vested rights for said parcels. Joseph Edward's
letter of application outlines the reasons for this request. City Council granted Subdivision and
PUD approval of the Top of Mill development through Ordinance 7, Series of 2002, on March
II, 2002. The subdivision is composed of residential development parcels (allowing five single-
family and three multi-family lots and a separate parking garage) that are zoned LodgefTourist
Residential (L/TR). Two other parcels dedicated to open space are zoned Conservation (C).
The subject land for this application, Parcels 4, 7 and 8, were approved for single family
dwellings with ADUs, but remain vacant and undeveloped at this time. The applicants are
making this proposal in light of the imminent termination of the initial three year vesting period
for the PUD, as well as the fact that a pending ordinance of the city proposes that the L/TR zone
be amended to remove single family dwellings from the list of permitted uses. The potential
change may come about if Ordinance 9, Series of 2005, receives Council approval. The code
amendment would not allow single-family dwellings as a permitted use, which has obvious
consequences to the owners and to the PUD development as an approved master plan.
STAFF COMMENTS:
Staff would like to see this situation remedied in order to allow the future use of the subject
parcels to continue as single family residences as approved in the PUD. Staff has considered this
application and has proposed an approach that is different from the applicant's request, but one
that we feel achieves the same end. Staff understands that the applicant represents owners of land
who are in the process of a land sale transaction and therefore timing of this situation is
important. There are two components to this situation, one has to do with the exemption from
the expiration of vested ril!hts and the other has to do with the more common extension of
vested ril!hts.
Exemption from Expiration of Vested Ril!hts:
The applicant has asked that the subject parcels be exempt from ever haying the vested rights for
their development approval expire. Staff does not feel that it is appropriate to grant the
exemption from expiration of vested rights for parcels 4, 7 and 8 in a blanket fashion to all of the
rights granted in the PUD. Doing so would allow the vested rights for the PUD to go in
perpetuity and give these owners different rights that those allowed other developments.
Currently, once a vesting period is over for a development, the is subject to new regulations as
they evolve to reflect new and changing policies. Given the proposed change to the LTR zone, .
Staff believes that exemption from expiration of vested rights should be granted for the land use
of the parcels only. This would allow for the approved land use of single family dwellings with
ADUs to continue. There are no changed circumstances in the neighborhood that would warrant
a change to the approved PUD plan, the current owners of properties within the PUD have a
reliance on the approved PUD uses, and the intended uses are still acceptable in the setting.
Single family residences have already been built on some of the parcels in the development.
These lots too, are subject to becoming noncomplying when and if the LTR amendment goes
through. Staff recommends that a new zoning amendment be initiated for all the single family
residential parcels (4, 5, 6, 7, & 8) within the Top of Mill PUD, changing the LTR to a zone
district that allows single family residential dwellings and ADUs as a permitted use. Couple with
this recommended zone district change, Staff recommends that the exemption from expiration of
yested rights for the land use not be granted in perpetuity, but only until such time as a zone
change is approved to allow for single family residential development as a permitted use.
Extension of Vested Ril!hts:
Considering that the development still has several vacant lots, Staff can support an extension of
yested rights for 3 years. This would allow the development to be guided by the zoning in place
2
at the time of development approvals and not subject to neW regulations for another 3 years. As
noted earlier, there are no changed circumstances in the neighborhood that would make the City
want to see a new development scenario for these properties; the current owners of properties
within the PUD and neighbors have a reliance on the approved PUD plan; and, the intended uses
and layout are still acceptable in the setting. The floor areas were all set by the PUD and these
are not subject to change.
To summarize, Staff recommends the following actions:
. Grant an exemption from the expiration of the vested rights only to allow for the single
family residential and ADU land use rights to continue, until such time as a zone change
is approyed to allow for single family residential development and ADUs as a permitted
use;
. Grant an extension of the vested rights for the PUD approval for a three year period; and
· Direct Staff to initiate a zone change amendment to allow for the single family residential
use and ADUs as a permitted use for Parcel Nos. 4, 5, 6, 7, & 8 of the Top of Mill
Subdivision/PUD.
STAFF RECOMMENDATION:
Staff recommends approval of an exemption from expiration of vested rights and an
extension of vested rights for Parcels 4, 7, and 8 of the Top of Mill SubdivisionfPUD with
the following conditions:
I. The exemption from expiration of vested rights will apply only to vested rights regarding
land use granted through Ordinance 7, Series of2002. The land use will remain in effect
as single-family residential until such time as a zone change is approved to allow single
family residences and ADUs as a permitted use. All development dimensional standards
and requirements as put forth in the aforementioned ordinance shall continue to apply.
2. All vested rights for the Parcels 4, 7 and 8 as outlined in Ordinance 7, Series of 2002,
will be granted an extension of vested property rights for three (3) years, establishing an
expiration date of March 11,2008.
3. The establishment herein of a vested property right shall not preclude the application of
regulations which are general in nature and are applicable to all property subject to land
use regulation by the City of Aspen including, but not limited to, building, fire,
plumbing, electrical and mechanical codes. The developer shall abide by any,and all
such building, fire, plumbing, electrical and mechanical codes that are in effect at the
time of building permit, unless an exemption therefrom is granted in writing.
RECOMMENDED MOTION:
"I move to approve Resolution No. 1-'2., Series of 2005, approving, with conditions, an
exemption from the expiration of vested rights for the approved land use on Parcels 4, 7 and 8 of
the Top of Mill Subdivision/PUD pursuant to Ordinance 7, series of 2002, and granting an
extension of the development rights approved in that same ordinance for a three (3) year period.
The new expiration date will be March 11,2008." AND,
3
"I move to direct Staff to initiate a zone change amendment that will allow for single family
residential and ADU uses as a permitted use for Parcel Nos. 4, 5, 6, 7, & 8 of the Top of Mill
Subdivision/PUD. "
CITY MANA~~:::
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ATTACHMENTS:
Exhibit A n Review Criteria & StaffPindings
Exhibit B -- Application Letter
Exhibit C -- Top of Mill Subdivision/PUD Land Use Plats
Exhibit D -- Ordinance 7, Series of2002
4
RESOLUTION NO. i 6
(Series of 2005)
A RESOLUTION OF THE ASPEN CITY COUNCIL APPROVING AN EXEMPTION
FROM THE EXPIRATION OF VESTED LAND USE RIGHTS, AND A THREE (3) YEAR
EXTENSION OF THE VESTED DEVELOPMENT RIGHTS GRANTED BY ORDINANCE
NO.7, SERIES OF 2002, FOR PARCELS 4, 7 AND 8 OF THE TOP OF MILL
SUBDIVISIONIPLANNED UNIT DEVELOPMENT, CITY AND TOWNSITE OF ASPEN,
PITKIN COUNTY, COLORADO.
Parcel Nos. 2737-182-02-204,2737-182-02-207,2737-182-02-208
WHEREAS, the Community Development Department received an application from the
representative of the three owners of said parcels, Klein, Cote & Edwards, P.C, requesting
approval of an exemption of the expiration of vested rights granted for the Top of Mill
Subdivision/PUD pursuant to Ordinance No.7, Series of2002; and,
WHEREAS, City Council adopted Ordinance No.7, Series of 2002, which approved a
Subdivision and PUD and granted Vested Property Rights status for Top of Mill
Subdivision/PUD Development until March 11,2005; and,
WHEREAS, pursuant to Section 26.308.010 Vested Property Rights of the Land Use
Code, City Council may grant an exemption from expiration of vested rights or andfor an
extension of vested rights after a public hearing is held and a resolution is adopted; and,
WHEREAS, the Community Development Director has reviewed the application and
recommended approval of exemption from expiration of the land use rights and a three (3) year
extension of development rights for the Top of Mill SubdivisionIPUD; and,
WHEREAS, the Aspen City Council has reviewed and considered the requested exemption
from expiration of vested rights for the Top of Mill SubdivisionIPUD under the applicable
provisions of the Municipal Code as identified herein, has reviewed and considered the
recommendation of the Community Development Director, and has taken and considered public
comment at a public hearing; and,
WHEREAS, the City Council finds that the exemption from the expiration of vested rights
and the extension of vested rights meets or exceeds all applicable land use standards and that the
approval of such, with conditions, is consistent with the goals and elements of the Aspen Area
Community PI,m; and,
WHEREAS, the City Council finds that this Resolution furthers and is necessary for the
promotion of public health, safety, and welfare.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF ASPEN,
COLORADO, THAT:
"
"'.........
Section 1:
The Aspen City Council does hereby approve an exemption from expiration of vested rights and
an extension of vested rights in accordance with Ordinance No.7, Series of2002 for Parcels 4,7
and 8, Top of Mill Subdivision/PUD, City and Townsite of Aspen, with the following conditions:
I. The exemption from expiration of vested rights will apply only to vested rights
regarding the land use granted through Ordinance 7, Series of 2002. The land use will
remain in effect as single-family residential until such time as a zone change is approved
to allow single family residences and ADUs as a permitted use. All development
dimensional standards and requirements as put forth in the aforementioned ordinance
shall continue to apply.
2. All yested rights for the Parcels 4, 7 and 8 as outlined in Ordinance 7, Series of 2002,
are hereby granted an extension of vested property rights for three (3) years, establishing
an expiration date of March 11,2008.
3. The establishment herein of a vested property right shall not preclude the application of
regulations which are general in nature and are applicable to all property subject to land
use regulation by the City of Aspen including, but not limited to, building, fire,
plumbing, electrical and mechanical codes. The developer shall abide by any and all
such building, fire, plumbing, electrical and mechanical codes that are in effect at the
time of building permit, unless an exemption therefrom is granted in writing.
Section 2:
All material representations and commitments made by the applicant pursuant to the development
proposal approvals as herein awarded, whether in public hearing or documentation presented before
the City COlillcil, are hereby incorporated in such plan development approvals and the same shall be
complied with as if fully set forth herein, unless amended by an authorized entity.
Section 3:
This Resolution shall not effect any existing litigation and shall not operate as an abatement of any
action or proceeding now pending under or by virtue of the ordinances repealed or amended as
herein provided, and the same shall be conducted and concluded under such prior ordinances.
Section 4:
If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason
held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a
separate, distinct and independent provision and shall not affect the validity of the remaining
portions thereof.
Section 5:
A duly noticed public hearing on this Resolution was held on the 14th day of March, 2005, at 5 :00
PM in the City Council Chambers, Aspen City Hall, Aspen, Colorado.
FIN ALL Y, adopted, passed, and approved by a
March,2005.
to
L-~ vote on this 14tl1 day of
Approved as to form:
John P. Worcester, City Attorney
Attest:
Kathryn S. Koch, City Clerk
H:\chrisllApplications\City Council\Top of Mill Exemption
Approved as to content:
Helen Kalin Klanderud, Mayor
~.,......
EXHIBIT A
REVIEW CRITERIA & STAFF FINDINGS
SECTION 26.308.010 VESTED PROPERTY RIGHTS
Exemption from Expiration of Vested Rif!hts In reviewing a request for the extension or
reinstatement of a development order and associated vested rights, the City Council shall
consider, but not be limited to, the following criteria:
I. Only subdivisions composed of detached residential or dnplex units shall be eligible
for the exemption from the expiration provisions of section 26.304.070(D);
STAFF FINDING:
The parcels (4, 7 and 8) for which this application was submitted are all part of a subdivision
of detached residential units legally known as, Top of Mill Subdivision/PUD. Staff finds this
criterion to be met.
2. To obtain an exemption, an application for exemption shall be submitted at any
time prior to the third anniversary of the effective date of the development order;
STAFF FINDING:
This application was submitted prior to the third anniversary of the development order. The
final approval for Ordinance 7, series 2002 was granted on March II, 2002. Staff finds this
criterion to be met.
3. Those conditions applied to a project at the time of final approval that were to have
been met as of the date of application for exemption have been complied with;
STAFF FINDING:
The conditions of approval that were established in approving the original development
proposal are to take effect prior to or in conjunction with the building permit submittal with
the exception of the preparation and recordation of the PUD Plat and Agreement. The PUD
Plat and Agreement have already been filed with the Clerk and Recorder's Office.
Therefore, Staff does not believe that there are any outstanding conditions of approval that
have to be met prior to applying for an extension of vested rights. Staff finds this criterion to
be met.
4. Any public or private improvements that were required to be installed by the
applicant prior to construction of any dwelling unit have been installed.
STAFF FINDING:
Infrastructure improvements have been completed. For the parcels that have already been
developed, all required improvements have been done. The applicants will still be subject to
the land use requirements as established in Ordinance 7, Series 2002 for development on the
remaining parcels. Staff finds this criterion to be met.
...........
E){'^~bt -3
I KLEIN, COTE & EDWARDS, p.Cl
ATTORNEYS AT LAW
HERBERT S. KLEIN
LANCE R. COTE, PC'
JOSEPH E. EDWARDS, Ill, LLC
MADHU B. KRISHNAMURTI
hsk@kcelaw.net
lrc@kcelaw.net
jee@kcelaw.net
mbk@kcelaw.net
201 NORTH MILL STREET, STE. 203
ASPEN, COLORADO 816 I I
TELEPHONE: (970) 925.8700
FACSIMILE: (970) 925-3977
. also admitted in California
February 17, 2005
Joyce Allgaier
City of Aspen Community Development Department
130 South Galena St.
Aspen, CO 81611
Re: Parcels 4, 7 & 8, Top of Mill Subdivision;
Exemption from Expiration of Vested Rights
Dear Joyce:
Thank you for holding a pre-application conference with me on February 11,2005, to
discuss the vested rights for the above-referenced Parcels. Our office represents and is
authorized to file this application on behalf of the owners of Parcels 4, 7 and 8, Top of Mill
Subdivision (the "Parcels"), according to the plat thereof recorded in Plat Book 62 at Page 4as
Reception No. 471099 of the Pitkin County Records (the "Plat"). The owner of Parcel 4 is
Parcel 4 Top of Mill, LLC, a Colorado limited liability company. The owner of Parcel 7 is JP
Interests, LLC, a Delaware limited liability company. The owners of Parcel 8 are LPRP River,
LLC, and LPRP Mill, LLC, both Colorado limited liability companies. The address for all
applicants is this office. For your reference, a copy of the Plat is attached - I have not included
several pages of floor plans, elevations and various utility and landscaping plans which were
recorded as a part of the Plat and are not relevant for purposes ofthis application.
Please consider this letter an application pursuant to Section 26.308.0IOBI, City of
Aspen Municipal Code, for an exemption from expiration of vested rights for the Parcels. All of
the Parcels are currently vacant land approved for development of detached single family
residences and associated ADUs. This application is filed prior to the third anniversary of the
effective date of the development approval which granted vested rights.
For your reference, attached is a copy of Ordinance 7, Series of 2002 which granted final
approval for the PUDfSubdivision and was recorded in the Pitkin County Records as Reception
No. 466392 ("Ordinance 7"). The final approval of Ordinance 7 was March 11,2002. Also
attached for your reference is a copy of the Subdivision/PUD Agreement for Top of Mill
SubdivisionIPUD dated August 16,2002, recorded as Reception No. 471100, and executed by
the Developer ofthe Top of Mill Subdivision and the City of Aspen ("PUD Agreement").
Section 2.1 (d) of the PUD Agreement granted vested rights for a period of three years from the
date of approval of Ordinance 7. Pursuant to Section 2.2 of the PUD Agreement, each Parcel
,-..
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,,",,-"
Joyce Allgaier
City of Aspen Community Development Dept.
February 17, 2005
Page 2
was approved for a detached, free market, single family residence with a specified maximum
allowable floor area.
The Developer of Top of Mill has complied in all respects with all of the requirements of
the PUD Agreement. Any public or private improvements that are required for development of
the Parcels have been installed, since other parcels within the Subdivision have obtained building
permits.
For seyeral reasons we believe it is appropriate to grant the Parcels an exemption from
the expiration of vested rights: (1) the Parcels already received approval from the City for
development of detached single family residences; (2) Parcell (six townhomes), Parcel 2 (four
affordable housing units), Parcel 3 (a duplex) and Parcel 6 (a single family residence) have all
obtained building permits and achieved varying levels of completion; (3) the timing for the
development of the Parcels is uncertain and there is no policy reason for requiring that the free
market component of the subdivision be built immediately; (4) the Master Declaration of
Covenants for the subdivision limits the use of the Parcel to single family residential structures
(and an ADU in accordance with the PUD Agreement); and (5) there is no other reasonable use
ofthe Parcels given the existing development of the subdivision.
We respectfully request that the City Council grant exemption from vested rights in
accordance with Section 26.308.010BI of the Code.
I have obtained mailing labels from the City GIS department for all owners within 300
feet of the Parcels. As soon as you provide a copy of the public notice, we will make sure it is
mailed. Also, enclosed is a check in the amount of $546.00 as the filing fee. Please let me know
if you need any additional information.
Sincerely,
KLEIN, COTE & EDWARDS, P .C.
B
Enclosures
\IAlIgaier.doc
~~
KLEIN, COTE & EDWARDS, P.e.
ATIORNEYSATLAW
HERBERT S. KLEIN
LANCE R. COTE, PC'.
JOSEPH E. EDWARDS, III, ILC
MADHU B. KRlSHNAMURTJ
hsk@kcelaw.llCt
Irc@kcelaw.net
jee@kcelaw.nel
mbk@k....luw.net
201 NORTI-I MaL STREET, STE. 203
ASPEN, COWRAD081611
TEI.EPIIONE: (970) 925-8700
I'^CSIMtLE. (970) 923-]977
..110 admiued illCatifl;>,nia
February 17,2005
Chris Lee
City of Aspen Community Development Department
130 South Galena St.
Aspen, CO 81611
Re: Parcels 4, 7 & 8, Top of Mill Subdivision;
Exemption from Expiration of Vested Rights
Dear Chris:
The rea~on that the owners of Parcels 4,7 & 8, Top of Mill Subdivision are seeking
exemption from expiration of vested rights is that we have been informed that the City is
considering changes to the L/TR zone district, which is the underlying zone district for this PUD.
Also, the statutory vested rights are currently scheduled to expire in March of this year.
Please let me know if you have any additional questions.
Sincerely,
KLEIN, COTE & EDWARDS, P.c. ,
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lOT 3, ASPEN MOUNTAIN SUBDIVISION I p U 0
ASPEN, COLORADO
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IIII~ II 1111I11111111111111111 ~;7~~~:~1 : 46~
SILVIO DOVlS PITKIN COUNTY CO R 3"ee 0 e.e0
t..xh';o} j)
ORDINANCE No.7
SERIES OF 2002
AN ORDINANCE OF THE ASPEN CITY COUNCIL APPROVING THE FINAL
PLANNED UNIT DEVELOPMENT APPLICATION INCLUDING
SUBDIVISION, CONDOMINlUMIZA TION, MOUNTAIN VIEW PLANE,
SPECIAL REVIEW, GROWTH MANAGEMENT QUOTA EXEMPTIONS
(GMQS), 8040 GREENLINE REVIEW, AND REZONING FOR THE TOP OF
MILL SITE TO LODGE I TOURIST RESIDENTIAL PUD AND
CONSERVATION, LOT 3 OF THE ASPEN MOUNTAIN SUBDIVISION I PUD,
CITY AND TOWNSITE OF ASPEN, PITKIN COUNTY, COLORADO
PARCEL NO. 2737-182-85-003
WHEREAS, the Community Development Department received an application
from Top of Mill Investors, LLC c/o Four Peaks Development, LLC (Applicant),
represented by Vann Associates, requesting Final Planned Unit Development (PUD)
approval for Lot 3 of the Aspen Mountain Subdivision I POO (hereinafter "AMPUD");
and
WHEREAS, Top of Mill Inyestors, LLC c/o Four Peaks Development, LLC
requested specific land use approvals as part of the Final POO including Final POO
Development Plan, Subdivision, Condominiumization, Mountain View Plane, Special
Review, GMQS Exemption, 8040 Green1ine Review, and Rezoning; and
WHEREAS, Savanah Limited Partnership, owner at the time of Lot 3 of
AMPUD, receiyed Conceptual POO approval from City Council for AMPUD on
December 6, 1999 which is memorialized through Resolution No. 93, Series of1999; and
WHEREAS, Top of Mill Investors, LLC, received an Amended Conceptual
Approval from City Council for Lot 3 AMPUD on May 29,2001 which is memorialized
through Resolution No. 50, Series 200 I; and
WHEREAS, the Housing Office, the City Zoning Officer, the City Engineer, the
Parks Department, Aspen Consolidated Sanitation District, the Environmental Health
Department, the City Fire Department, the City Streets Department, the City Parking
Department, the City Water Department, and the City Electric Department reviewed the
development proposal for Lot 3 and provided written referral comments as a result of the
Deyelopment Review Committee meeting; and
WHEREAS, the Applicant appropriately applied for specific land use approvals
pursuant to the June 1996 reprint of Title 26, Land Use Regulations, of the 1995 Aspen
Municipal Code for the Final POO for Lot 3 AMPUD including Final POO Development
Plan, Subdivision, Condominiumization, Mountain View Plane, Special ReYiew, Growth
Management Quota Exemptions, 8040 GreenIine Review, and Rezoning; and
~ 1111111I111II1111111I1I"11111111n~~~~~:~ i 1 : 4S~
SILVIA OAVIS PITKIN COUNTY CO R 35.00 D 0,00
WHEREAS, pursuant to Section 26.304.060 of the Land Use Code, and in
consultation with the applicant, the Community Development Director has permitted a
modification in review procedures to combine the Final PUD Development Plan,
Subdivision, Cpndominiumization, Mountain View Plane, Special Review, GMQS
Exemption, 8040 Greenline Review, and Rezoning review for the purposes of ensuring
economy of time and clarity; and
WHEREAS, such review procedure modification has not lessened any public
hearing noticing or any scrutiny of the project as would otherwise be required; and,
WHEREAS, uPon review of the application, referral comments, and the
applicable Land Use Code standards, the Community Development Director
recommended approyal of the Final Aspen Mountain PUD land use requests for Lot 3
with conditions; and
WHEREAS, the Planning and Zoning Commission forwarded a recommendation
of approval to the City Council, by a vote of four to one (4 - I), Final PUD Development
Plan, Subdivision, Condominiumization, Mountain View Plane, Special Review, GMQS
Exemption, 8040 Greenline Reyiew,and Rezoning for Lot 3 AMPUD; and
WHEREAS, this ordinance, as adopted, incorporates all the relevant and applicable
conditions of approyal formerly contained in Resolution No. 93, Series of 1999 granting
ConceptuaI PUD Approval to Lot 3 AMPUD by City Council and Resolution No. 50, Series
of 200 I granting Amended Conceptual PUD Approval to Lot 3 AMPUD by City Council
hereby allowing this ordinance to supersede those resolutions regarding the conditions of
approval as stated herein; and
WHEREAS, the Aspen City Council has reviewed and considered the development
proposal under the applicable provisions of the applicable Municipal Codes as identified
herein, has reviewed and considered the recommendation of the Community Development
Director, the Planning and Zoning Commission, the Aspen I Pitkin County Housing
Authority, the applicable referral agencies, and has taken and considered public comment at
a public hearing; and
WHEREAS, the City of Aspen City Council finds that the development proposal
meets or exceeds all applicable development standards and that the approval of the
development proposal, with conditions, is consistent with the goals and elements of the
Aspen Area Community Plan; and
WHEREAS, the City of Aspen City Council hereby approyes, by a vote offive to
zero (5 - 0), a Final PUD Deyelopment Plan, Subdivision, Condominiumization,
Mountain View Plane, Special Review, GMQS Exemption, 8040 Greenline Review, and
Rezoning for Lot 3 AMPUD; and
WHEREAS, the City of Aspen City Council finds that this Ordinance furthers and
is necessary for the promotion of public health, safety, and welfare.
NOW, THEREFORE, BE IT ORDAINED BY THE ASPEN CITY COUNCn.. AS
FOLLOWS:
'-
lUll 11111111111111111 1111 II 11111 ~ ::~~~~::~ r 1 :46~
SILVIA OAVIS PlTKIN COUNTY CO R 35,00 D 0.00
Section 1
Pursuant to this Ordinance and consistent with condition no. 3, of Resolution No. 93,
Series of 1999, the City Council approves the allowable FAR for each Lot 3 parcel and
allocated as shown in the matrix below.
Parcel I
Parcel 2
Parcel 3
Parcel 4
Parcel 5
Parcel 6
Parcel 7
Parcel 8
Parcel 9
27,000 square feet of FAR
8,000 square feet of FAR
9,000 square feet of FAR
6,200 square feet of FAR
5,200 square feet of FAR
5,200 square feet ofF AR
6,500 square feet ofF AR
6,500 square feet ofF AR
No FAR shall be allocated to this parcel.
Section 2
Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal
Code, the requests for the Final PUDincluding Final PUD Deyelopment Plan,
Subdivision, Condominiumization, Mountain View Plane, Special Reyiew, GMQS
Exemption, 8040 Greenline Review, and Rezoning for Lot 3 of AMPUD is hereby
approved with the following conditions:
I. The development shall comply with the most recent municipal engineering practice
standards and the "Best Management Practices" (BMPs) identified for water quality
control requirements.
2. Regarding the concerns associated with the type of units of the four (4) deed-restricted
multi-family housing units on Parcel 2, should it not be possible to change the unit type,
Staff recommends the Applicant meet with Housing Authority Staff to maintain the
average of the Category 2, but to price one of the three bedroom units between Category
I and 2, and to price the 4-bedroom unit between Category 2 and 3, and market as a
Category 3.
3. Three of the units on Parcel 2 shall be distributed and sold under the general lottery
through the Housing Office. The Applicant shall be able to choose a buyer for one of the
units. However, the buyer must be a fully qualified employee under the category for the
unit chosen by the applicant; i.e., the potential buyer must meet income and asset
requirements, meet minimum occupancy, not pwn any other property in the Roaring Fork
Drainage System, and have worked in Pitkin County 1500 hours per year for the last four
years.
4. The Applicant shall submit Infrastructure and Removal of Fill Material Permits for Lot 3
AMPUD within 30 (30) days after recordation of all Final PUD documents. The
Applicant may submit building permit applications at the Applicant's discretion, but no
sooner than the issuance of a building permit for the Bavarian Inn affordable housing
project The Applicant shall be eligible for a Certificate of Occupancy for the free market
1:1111I 111111I111/11111 I1II ~~7~~~ i I : 461
SILVIR ORVIS PITKIN COUNTY CO R 35.00 D 0.00
multi-family units on Parcell only after a Certificate of Occupancy has been issued for
the affordable housing units on Parcel 2. The Applicant shall be eligible for a Certificate
of Occupancy for the Free Market Duplex on Parcel 3 and the single-family units to be
constructed on Parcels 4, 5, 6, 7, and 8 no sooner than the receipt of a Certificate of
Occupancy for an on-site accessory dwelling unit or upon the full payment of the
applicable affordable housing impact fee.
5. The accessory dwelling units (for Parcels 4 - 8) shall abide by the regulations in the Land
Use Code in effect at the time of building permit application and further defined in the
AspcnlPitkin County Housing Guidelines. Should an accessory dwelling unit not be
provided on Parcels 4 through 8, a payment-in-Iieu fee shall be provided in the amount
required in the Guidelines at the time of building permit approval.
6. At the time of Certificate of Occupancy, a site visit shall be conducted on the deed-
restricted units.
7. Since the ''for-sale'' affordable housing units are to be developed on a separate parcel,
Parcel 2, a separate homeowner's assocmtion shall be established for the affordable
housing portion of the development
8. The Applicant shall include appropriate language in the Final PUD Agreement for Lot 3
and it's associated condominium (or planned community) documentation regarding the
separate homeowner's association for Lot 3 (to be reviewed and approved by Staff) that
ensures that the four (4) "for-sale" affordable housing units to be developed on Parcel 2,
shall comply with the representations made in the application, adhere to the conditions of
this Final PUD Approyal, and comply with the required deed restrictions as administered
by the Aspen / Pitkin County Housing Authority so that the owners of said units shall not
be unduly burdened by a disproportionate share of responsibilities associated with the
master hpmeowner's association or other homeowner associations established for the
free market residences on parcels I and 3 - 8.
9. Erosion control plans, including potential natural resource protection structures, and a
detailed plan for irrigation systems and other plantings within the City of Aspen right-of-
way shall be submitted by the Applicant to the Parks Department fpr approval prior to the
application of building permits. Separate erosion control plans shall be submitted by the
owners of each parcel prior to the issuance of a building permit for their respective
parcels.
10. The Applicant shall construct the "Aspen Mountain Trail" which traverses the adjacent
Open Space Parcel "B" according to City of Aspen standards during the completion of
this project. This trail improvement shall meet engineering specifications as defined by
the City of Aspen Parks Department including a crusher fines trail surface, a width of
four feet, a trail sign located at the entrance of each trail identifying trail name and public
access, and the sign shall be designed and built to match the character of the
neighborhood. The Applicant shall submit a detailed plan for trail design and drainage.
Parks Department requests the applicant field stake the trail. The Applicant shall be
required to haye the trail improvement completed and inspected to the satisfaction ofthe
Parks Department prior to the receipt of a Certificate of Occupancy for the free market
triplexes on Parcel ].
II ~ 111I Ilmlllllllllllll ~~~~2 i 1 : 45~
SILVIR DlWIS PITKIN COUNTY CD R 3~.00 C e.00
I I. The Applicant shall formally establish the Top of Mill Trail across Lot 3 AMPUD. This
trail shall have a legal description, be shown on the Final Plat, and be dedicated/conveyed
to the City of Aspen. Further, the Applicant shall memorialize in the Final PUD /
Subdivision Agreement for Lot 3 and associated condominium (or planned community)
documents, the obligation by the master homeowner's association or Applicant to
improve the Top of Mill Trail, at such time the connection is realized, pursuant to the
Parks Department's design criteria. If the trail has not been improved to the satisfaction
of the Parks Department within 5 years of the recordation of the Final Plat for AMPUD
Lot 3, the master homeowner's association for Lot 3 shall make a cash payment to the
City of Aspen equal to a sum defined by the Parks Department for the improyement of
the trail.
12. Pire sprinklers and alann systems shall be installed in all the proposed buildings on Lot 3
as required by the City of Aspen Pire Marshal. Appropriate "booster pumps" (if required)
rather than pressure tanks for the sprinkler system shall be used to gain the necessary
water pressure as required by the City Fire Department The owner of each parcel shall be
responsible for ensuring that any buildings constructed thereon shall comply with this
condition of approval. In addition, the Applicant shall submit a fire safety plan for the
demolition to be preformed by the Applicant of the existing structures and the
construction of the proposed development of Lot 3 to the Engineering Department at the
time of building permit application.
]3, The Applicant shall execute a "Line Extension Request" and a "Collection System
Agreement" with Aspen Consolidated Sanitation District (ACSD) prior to building
permit application. In addition, forty percent (40%) of the estimated total connection fees
must be paid to ACSD by the applicant for service lines that are to be stubbed off the
main line into the specific parcels of this development.
14. The Applicant shall be required to show to the ACSD all service locations at the station
numbers on the final utility plans for this deyelopment prior to building permit
application. Additionally, the Applicant shall indicate to the ACSD if main line
easements in the ROW are to be dedicated by plat or by description.
\'J:
IS. The Applicant shall record the' approved condominium (or planned community)
subdivision plat for Parcels I, 2, and 3 of AMPUD Lot 3 in the office of the Pitkin
County Clerk and Recorder within one hundred eighty (180) days of its approval by the
Community Development Director. Failure on the part of the Applicant to record the plat
within one hundred eighty (I80) days following approyal by the Community
Deye]opment Director shall render the plat invalid and a new application and approyal
.~ill be required.
16. The Applicant shall record a PUD Agreement and the Pinal PUD Plans within 180 days
of the final approval by City Council with the Pitkin County Clerk and Recorder binding
this property to this development approval.
17. The development of the free market single-family dwellings proposed for Parcels 4 _ 8 of
AMPUD Lot 3 shall be subject to a site and design specific 8040 Greenline Review prior
to their development. These Parcels shall only be required to respond to review standards
t;illlllllllllllllllllllllllllllllllll ~~7~~ ~ 1 : 461
SILVI~ OJ:WlS PITKIN COUNTY CO R 35.00 D f1.0"
26.68.030 (C)(3) and 26.68.030 (C)(7); this resolution approves Parcels 4- 8 regarding
8040 Greenline Review Standards 26.68.030 (C)(I, 2,4,5,6,8,9, 10, and I]) thereby
prec luding any further review of the same standards as indicated.
18. The owner of each parcel shall pay the required School Land Dedication Fee to the City
of Aspen, which is due and payable at the time of building permit application for the
development of its parcel. This fee shall be assessed at the rate of the regulations and
calculations in effect at the time of the building permit application.
19. The owner of each parcel shall pay the required Park Deyelopment Impact Fee to the City
of Aspen, which is due and payable at the time of building permit application for the
deyelopment of its parcel. This fee shall be assessed at the rate of the regulations and
calculations in effect at the time of the building permit application.
20. The Applicant shall record the appropriate deed restrictions for Parcel 9, containing the
six-space enclosed parking garage, requiring that the lot remain for parking purposes only
as part of the Summit Place Condominiums project.
2 I. It is understood that upon approval of this Final PUD, all remaining residential credits
associated with the AMPUD are hereby extinguished.
~The Applicant shall be required to submit detailed "cut sheets" for the proposed lights on
' Lot 3 AMPUD indicating the correct lumens on the lighting plan as part of the detailed
building set to be examined during building permit review.
23, The Applicant shall work closely with the City of Aspen Engineering Department to
' ensure the access point from Parcel I on Lot 3 adequately provides for a left turn onto
South Mill Street.
24. While the development proposal meets virtually all ofthe proposed underlying LITR and
Conservation zone districts' dimensional requirements, this Ordinance approves the
following modifications of the dimensional requirements:
a. Maximum Lot Size for Parcel 3 is 15, I 70 sq. ft.
b. Maximum Lot Size for .Parcel4 is 12,278 sq. ft.
c. Maximum Lot Size for Parcel 5 is ]0,593 sq. ft.
d. Maximum Lot Size for Parcel 6 is 9,825 sq. ft.
e. Maximum Lot Size for Parcel 7 is 17,669 sq. ft.
r. Maximum Lot Size for Parcel 8 is ]8,756 sq. ft.
g. Minimum Lot Size for Parcel 9 is 2,745 sq. ft.
h. Minimum Lot Size for Open Space Parcel B is 49,446 sq. ft.
I. Minimum Front Yard Setback for Parcel 9 is 8 feet
j. Minimum East Side Yard Setback for Parcel 9 is 3 feet
k. Minimum West Side Yard Setback for Parcel 9 is 3 feet
I. Minimum Rear Yard Setback for Parcel 9 is 3 feet
"-"'
111111111111111111111111
SILVIR DAVIS PITKIN COUNTY CO
'""'"
111'466392
Page: 7 Df 7
04/19/2002 11:46~
R 35.00 D 0.00
Section 3
All material representations and commitments made by the Applicant pursuant to the
development proposal approvals as herein awarded, whether in public hearing or
documentation presented before the Aspen City Council, are hereby incorporated in such
plan development approyals and the same shall be complied with as if fully set forth herein,
unless amended by an authorized entity,
Section 4
This Ordinance shall not effect any existing litigation and shall not operate as an abatement
of any action or proceeding now pending under or by virtue of the ordinances repealed or
amended as herein provided, and the same shall be conducted and concluded under such
prior ordinances.
Section 5
If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any
reason held invalid or unconstitutional in a court of competent jurisdiction, such portion
shall be deemed a separate, distinct and independent provision and shall not affect the
validity of the remaining portions thereof.
Section 6
A public hearing on this Ordinance was held on the 11th day of March at 5:00 pm in the
Council Chambers Room, Aspen City Hall, Aspen Colorado, fifteen (15) days prior to which
hearing a public notice of the same was published in a newspaper of general circulation
within the City of Aspen.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City
. Council of the City of Aspen on this 2SIh day of February, 2002.
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~hl'rt_S~ : b, City Clerk
'. .FlNALLY: iuitpted, passed and approyed this lllh Day of March, 2002.
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Attest: '
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o orcestor, City Attorney
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AFFIDAVIT OF PUBLIC NOTICE
REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE
ADDRESS OF PROPERTY: Parcels 4, 7 & 8, Top of Mill SubdivisioPAspen,CO
SCHEDULED PUBLIC HEARING DATE:
March 14
,200~
STATE OF COLORADO )
) 55.
County of Pitkin )
I, SliP. r.Rrdner (name, please print)
being or representing an Applicant to the City of Aspen, Colorado, hereby personally
certify that I have complied with the public notice requirements of Section 26.304.060
(E) of the Aspen Land Use Code in the following manner:
_ Publication of notice: By the publication in the legal notice section of an official
paper or a paper of general circulation in the City of Aspen at least fifteen (15)
days prior to the public hearing. A copy of the publication is attached hereto.
_ Posting of notice: By posting of notice, which form was obtained from the
Community Development Department, which was made of suitable,
waterproof materials, which was not less than twenty-two (22) inches wide
and twenty-six (26) inches high, and which was composed of letters not
less than one inch in height. Said notice was posted at least fifteen (15) days
prior to the public hearing and was continuously visible from the day of
,200_, to and including the date and time of the public
hearing. A photograph of the posted notice (sign) is attached hereto.
---.L Mailing of notice. By the mailing of a notice obtained from the Community
Development Department, which contains the information described in Section
26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to
the public hearing, notice was hand delivered or mailed by first class postage
prepaid U.S. mail to any federal agency, state, county, municipal government,
school, service district or other governmental or quasi-governmental agency that
owns property within three hundred (300) feet of the property subject to the
development application. The names and addresses of property owners shall be
those on the current tax records of Pitkin County as they appeared no more than
sixty (60) days prior to the date of the public hearing. A copy of the owners and
governmental agencies so noticed is attached hereto.
(continued on next page)
')
-..J
Rezoning or text amendment. Whenever the official zoning district map is in
any way to be changed or amended incidental to or as part of a general revision
of this Title, or whenever the text of this Title is to be amended, whether such
revision be made by repeal of this Title and enactment of a new land use
regulation, or otherwise, the requirement of an accurate survey map or other
sufficient legal description of, and the notice to and listing of names and
addresses of owners of real property in the area of the proposed change shall
be waived. However, the proposed zoning map has been available for public
inspection in the planning agency during all business hours for fifteen (I5) days
prim to tire pu'"' homing 00 'och =~ ~K~
The foregoing "Affidavit of Notice" was acknowledged before me this25thday
of February , 200~, by Sue Gardner
WITNESS MY HAND AND OFFICIAL SEAL
My commission expires: 8/26/06
/
'IY 1017)- 'lZu .fA/I at!
Notary Publlt ~
ATTACHMENTS:
COPY OF THE PUBLICATION
PHOTOGRAPH OF THE POSTED NOTICE (SIGN)
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ANDERSON BRUCE J
700 S MONARCH #207
ASPEN, CO 81611-1854
ASPEN SKIING COMPANY
PO BOX 1248
ASPEN, CO 81612
BILLINGSLEY FAMILY LP
1206 N WALTON BLVD
BENTONVILLE, AR 72712
BRIDGE TIM
300 PUPPY SMITH ST STE 203-225
ASPEN,CO 81611
COLBERT JAMES & ELIZABETH
C/O HERITAGE DEVELOPMENT
PO BOX 4 MIDLETON
CO CORK, IRELAND
EAST JAMES COLLIER TRUSTEE
5800 R ST
LITTLE ROCK, AR 72207
FAGIEN DEBRA
3863 NW 53RD ST
BOCA RATON, FL 33496
FORD WARWICK S & NOLA M
6 ELLERY SQUARE
CAMBRIDGE, MA 02138
FRIEDKIN THOMAS H
PO BOX 4718
HOUSTON, TX 77210-4718
GOODMAN MARK
700 MONARCH ST#103
ASPEN, CO 81611
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1-800-GO-AVERY ,-'"
APRIL FAMILY TRUST 1/4 INT
3501 S 154TH ST
WICHITA, KS 67232-9426
BAILEY FAMILY INVESTMENT CO
3215 TARRYHOLLOW DR
AUSTIN, TX 78703-1638
BIRDMAN DIANE
307 S 21ST AVE
HOLLYWOOD, FL 33020
CHILDS INVESTMENT COMPANY
0284 CR 102
1 CARBONDALE, CO 81623
COLE THOMAS H
1647 E MAPLEWOOD AVE
CENTENNIAL, CO 80121
'I EDGAR ROBERT G
1 167 COUNTRY CLUB DR
GROSSE POINTE, MI 48236-2901
FALRIDGE LTD
C/O OATES KNEZEVICH &
! I GARDENSWARTZ
533 E HOPKINS AVE
ASPEN, CO 81611
FORT BERNARDO & LAURINDA SPEAR
3315 DEVON CT
COCONUT GROVE, FL 33133
GARDNER CHARLES L
GARDNER RITA WALSH
840 LOCUST AVE
WINNETKA, IL 60093
GRIGSBY GEORGE T JR
PO BOX 145
HOLLY SPRINGS, NC 27540
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ASPEN MOUNTAIN MINING
CORPORATION
PO BOX 203
ASPEN, CO 81612
BENNETT WOOD INTERESTS LTD
PO DRAWER 1011
REFUGIO, TX 78377
BLEILER JUDITH A
PO BOX 10220
ASPEN, CO 81612
CLAYCOMB J BARRY
3157 D PINEHURST DR
LAS VEGAS, NV 89109
DUBS DAVID CRAIG
2165 E OCEAN BLVD
NEWPORT BEACH, CA 92661
ERICKSON CLAIRE L & BETTY LOU
1231 INDUSTRIAL RD
I" HUDSON, WI 54016
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! 2655 LE JEUNE RD PENTHOUSE #1
CORAL GABLES, FL 33134
FREEDMAN MICHAEL & NANCI WOLF
32460 EVERGREEN
BEVERLY HILLS. MI 48025
GHANEM MICHAEL
C/O DOMAIN MOTORS INC
70 SW 10TH 5T
DEERFIELD BEACH, FL 33441
GUEST KELLEY & CATHERINE
PO BOX 5578
CARMEL, CA 93921
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HAGER LOWELL P TRUSTEE
C/O ASPEN LODGING CO MGT
747 GALENA ST
ASPEN, CO 81611
HEARST BARBARA B & PETER S
TRUSTEES &
RICHARDS SUSAN TRUSTEE 50% INT
131 TREASURE HILL
SOUTH KENT. CT 06785
HILLMAN RICHARD HAYES TRUST
13562 D ESTE DR
PACIFIC PALISADES, CA 90272
KERR WAYNE & CATHY
2374 FOOTHILLS DR S
GOLDEN, CO 80401
LLOYD ASSOCIATES
LAYTON HOUSE, KEW GREEN
RICHMOND
SURREY ENGLAND lW93AF,
MAURER MICHAEL S QPRT
11550 N MERIDIAN ST#115
CARMEL, IN 46032
MICHAUD HOLLY 4.59% INT
314 MARLBOROUGH APT 3
BOSTON, MA 02116
NARDI STEPHEN J
PO BOX 641997
CHICAGO,IL 60664-1997
PETROVICH NICK 0
PETROVICH ROSA DEL CARMEN
FERNANDEZ
C/O FRIAS PROP OA ASPEN-730 E
DURANT AVE
ASPEN, CO 81611-2072
ROANOKEINVESTORSLP
109 CLUB CREEK CT
PO BOX 17
ST ALBANS, MO 63073
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HALL THOMAS L PERS INCOME & ASSET
TRUST
15145 PAWNEE CIRCLE
LEAWOOD, KS 66224
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HEMMETER GEORGE MEAD
1900 MYRTLE ISLAND DR
LAS VEGAS, NV 89112
JACOB PROPERTIES OF ASPEN LLC
500 FORD RD
MINNEAPOLIS, MN 55426
KWEI THOMAS AND AMY
700 SOUTH MONARCH APT 306
ASPEN, CO 81611
LOVETT WELLS T & MARY M
3035 WYNFIELD MEWS LN
LOUISVILLE, KY 40206-1567
MCVICKER JULIET
I PO BOX 567
, MIDDLEDURY, VT 05753
MOORE JOHN W 50%
10426 WHITEBRIDGE LN
ST LOUIS, MO 63141
I OLSEN MARSHALL G & SUSAN A
PO BOX 12228
ASPEN, CO 81612
POLLOCK WILLIAM HARRISON
PO BOX 2421
ASPEN. CO 81612
ROARING FORK PROPRIETARY LLC
2519 E 21ST ST
TULSA, OK 74114
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8111 CAMINITO MALLORCA
LA JOLLA. CA 92037
HIBBERD LORNA W FAMILY TRUST
PINE ISLAND
RYE, NY 10580
JAMES FAMILY TRUST 1/4 INT
1 CASTLEWOOD CT
NASHVILLE, TN 37215-4617
LEASURE BRIAN J
1211 HERITAGE DR
CARBONDALE, CO 81623-3147
MACAPA CORP
9465 WILSHIRE BLVD STE 400
, I , BEVERLY HILLS, CA 90212
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3115 WHITE EAGLE DR
NAPERVILLE, IL 60564
MURCHISON ANNE A
PO BOX 8968
ASPEN, CO 81612
PATRICK GARY R & PATRICIA A
537 MARKET ST STE 202
CHATTANOOGA, TN 37402
REARDON GENE F
PO BOX xx
ASPEN, CO 81612
ROBERT FAMILY TRUST 1/4 INT
771 FERST DR
ATLANTA, GA 30332-0245
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ROOKE JOAN ELIZABETH
POBOX 1035
REFUGIO, TX 78377-1035
SCHAlNUCK LEWIS I & MICHELLE T
2900 OCEAN BLVD
CORONA DE MAR, CA 92625
SCHIFFMAN ROBIN
700 MONARCH ST #103
ASPEN, CO 81611
SHAW GEORGE W 8.02% INT
525 E 72ND #22C
NEW YORK, NY 10021
SMITH CARLETON K
CO MCVICKER JULIET
PO BOX 567
MIDDLEBURY, VT 05753
STUART FAMILY TRUST 1/4 INT
1 CASTLEWOOD CT
NASHVILLE, TN 37215-4617
TOP OF MILL LLC
1001 E CHERRY ST
COLUMBIA, MO 65201
WAPITI RUNNING LLC
PO BOX 1003
ASPEN, CO 81612
WELCH PATRICK T & DEBORAH P
ASPEN LODGING CO
747 S GALENA ST
ASPEN, CO 81611
ZIMAND SHERRY
5426 OSPREY ISLE LN
ORLANDO, FL 32819
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TAX DEPT 412
1525 HOWE ST
RACINE, WI 53403
SCHALDACH NANCY REV TRUST
C/O K WOLOSON
1117 S RANCHO DR
LAS VEGAS. NV 89102-2216
SCHIMBERG HENRY & LINDA TRUST
C/O RACHEL DUGGAN
750 DALRYMPLE RD APT D3
ATLANTA, GA 30328-1432
SHINE FAMILY LLC
8677 LOGO 7 CT
INDIANAPOLIS, IN 46219-1430
STANFORD JOHN
I C/O LEE MILLER
747 S GALENA
ASPEN, CO 81611
SUMMIT PLACE CONDOS
C/O PETER S HEARST
747 S GALENA ST
ASPEN, CO 81611
VELMAR A COLORADO CORP
400 E MAIN ST
ASPEN, CO 81611
WARGASKI ROBERT E TRUST
30353 N DOWELL RD
MCHENRY, IL 60050
WHEELER CONNIE CHRISTINE
MC CALLlON GERARD
322 E 57 TH ST #3B
NEW YORK, NY 10022-2949
ZUCKER HOWARD B & DEBRA L
107 S MCINTYRE WY
GOLDEN, CO 80401
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SANCHEZ MARIA J & AR JR
PO BOX 2986
LAREDO, TX 78044
SCHERER ROBERT P JR
167 COUNTRY CLUB DR
GROSSE POINTE, MI 48236-2901
SHAW GEORGE G 87.39% INT
145 HUMBOLDT ST
DENVER, CO 80218-3931
SIMON HERBERT REV TRUST
8765 PINE RIDGE DR
, INDIANAPOLIS, IN 46260-1778
STEWART STANLEY & RITA J TRUSTEES
747 S GALENA ST
ASPEN, CO 81611-1872
TOP OF MILL INVESTORS LLC
, 1000 S MILL ST
, ASPEN, CO 81611-3800
WALDE WILLIAM L
6501 GOLD LEAF DR
BETHESDA, MD 20817
WEIGAND N R
150 N MARKET ST
WICHITA, KS 67202
WILSON CHARLES J
2572 NE MILDRED ST
JENSEN BEACH, FL 34957
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PUBLIC HEARING NOTICE
RE: EXEMPTION FROM EXPIRATION OF VESTED RIGHTS PARCELS 4, 7 & 8, TOP
OF MILL SUBDIVISION (THE "PARCELS"), ACCORDING TO THE PLAT THEREOF
RECORDED IN PLAT BOOK 62 AT PAGE 4 AS RECEPTION NO. 471099 OF THE
PITKIN COUNTY RECORDS.
NOTICE IS HEREBY GIVEN that a public hearing will be held before the Aspen
City Council at a meeting beginning at 5:00p.m: on Monday, March 14, 2005, at City
Hall, 130 South Galena Street, Aspen, Colorado. The purpose of the hearing is to
consider a request for an exemption from the expiration of vested rights pursuant to
Section 26.308.010B1, City of Aspen Municipal Code, for the properties known and
described as Parcels 4, 7 & 8, Top of Mill Subdivision (the "Parcels"), according to the
plat thereof recorded in Plat Book 62 at Page 4 as Reception No. 471099 of the Pitkin
County Records. The names and addresses of the applicants are as follows: The
owner of Parcel 4 is Parcel 4 Top of Mill, LLC, a Colorado limited liability company. The
owner of Parcel 7 is JP Interests, LLC, a Delaware limited liability company. The owners
of Parcel 8 are LPRP River, LLC, and LPRP Mill, LLC, both Colorado limited liability
companies. The address for all owners of the Parcels is care of: Klein, Cote & Edwards,
P.C., 201 North Mill Street, Ste. 203, Aspen, CO 81611.
For further information contact Joyce Allgaier, Aspen Community Development
Department at 130 South Galena Street, Aspen, CO 81611,970-429-2757 (or by email
at joycea@ci.aspen.co.us). All affected parties may present comments and eyidence
pertinent to the proposal.
01
, ~
....
ATTACHMENT 7
AFFIDAVIT OF PUBLIC NOTICE
REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE
ADDRESS OF PROPERTY: Parcels 4, 7 & 8, Top of Mill Subdi visiqIj\spen, CO
SCHEDULED PUBLIC HEARING DATE:
March 14
2005
, -
STATE OF COLORADO )
) ss.
County of Pitkiu )
I, Joseph E. Edwards, III (name, please print)
being or representing an Applicant to the City of Aspen, Colorado, hereby personally
certify that I have complied with the public notice requirements of Section 26.304.060
(E) of the Aspen Land Use Code in the following manner:
~ Publication of notice: By the publication in the legal notice section of an official
paper or a paper of general circulation in the City of Aspen at least fifteen (15)
days prior to the public hearing. A copy of the publication is attached hereto.
_ Posting of notice: By posting of notice, which form was obtained from the
Community Deyelopment Department, which was made of suitable,
waterproof materials, which was not less than twenty-two (22) inches wide
and twenty-six (26) inches high, and which was composed of letters not
less than one inch in height. Said notice was posted at least fifteen (15) days
prior to the public hearing and was continuously visible from the _ day of
,200_, to and including the date and time of the public
hearing. A photograph of the posted notice (sign) is attached hereto.
_ Mailing of notice. By the mailing of a notice obtained from the Community
Development Department, which contains the information described in Section
26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to
the public hearing, notice was hand delivered or mailed by first class postage
prepaid U.S. mail to any federal agency, state, county, municipal government,
school, service district or other governmental or quasi-governmental agency that
owns property within three hundred (300) feet of the property subject to the
development application. The names and addresses of property owners shall be
those on the current tax records of Pitkin County as they appeared no more than
sixty (60) days prior to the date ofthe public hearing. A copy of the owners and
governmental agencies so noticed is attached hereto.
(continued on next page)
I ~.
,....
"
.......
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Rezoning or text amendment. Wheneyer the official zoning district map is in
any way to be changed or amended incidental to or as part of a general revision
of this Title, or whenever the text ofthis Title is to be amended, whether such
revision be made by repeal of this Title and enactment of a new land use
regulation, or otherwise, the requirement of an accurate survey map or other
sufficient legal description of, and the notice to and listing of names and
addresses of owners of real property in the area of the proposed change shall
be waived. However, the proposed zoning map has been available for public
inspection in the planning agency during all business hours for fifteen (15) days
prior to the public hearing on such amendments.
ITNESS MY HAND AND OFFICIAL SEAL
y co ~ission expifel;:
I ./
ATTACHMENTS:
CCOPYOFTHEPuiiicATION ~
PHOTOGRAPH OF THE POSTED NOTICE (SIGN)
LIST OF THE OWNERS AND GOVERNMENTAL AGENCIES NOTICED
BY MAIL
12"'The'Aspen Times. Sunday, February 27, 200S
...
The Nation
For Bush, a long embrace
of Social Security plan
By Richard W. Stevenson
The New York Times
WASHINGTON - The conservative
economists and public policy experts who
trooped in to brief George W. Bush on
Social Security not long after he was re-
elected governor of Texas in 1998 came
with their own ideas about how to overhaul
the retirement program. But they quickly
found that Bush, who was well into prepa-.
rations for his first presidential race and had
invited them to Austin for the discussion,
already knew where he was headed.
"He never said, 'What should I do about
Social Security?'" said one of the partici-
pants in ~e meeting, Martin Anderson, who
had been a domestic policy adviser in the
Reagan administration. "On the day we
talked about Social Security, he said, 'We
have to find a way to allow people to invest
a percentage of their payroll tax in the capi-
ta! markets. What do you think?"
Bush had long been intrigued by the idea
of allowing workers to put part of their
Sociid Security taxes into stocks and bonds.
One Tuesday in the summer of 1978, in the
heat of his unsuccessful race for a House
seat from West Texas, Bush went to the
Midland Country Gub to give a campaign
speech to local real estate agents and dis-
cussed the issue in tenns not much different
from those he uses now.
Social Security "will be bust in to
years unless there are some changes," he
said, according to an account published
the next day in The Midland Reporter-
Telegram. "The ideal solution would be
for Social Security to be made sound and
people gi ven the chance to invest the
money the way they fee!."
Two decades later, Bush's desire to
change Social Security intersected with
th~ promotion of private accounts by
well-financed interest groups and conser.
vative research organizations, which
viewed the concept as innovative if ideo-
logically explosive.
What was once a fringe proposal has
been propelled to the forefront of the
national agenda in one of the biggest gam-
bles of Bush's political career, and in one of
the most concerted challenges since the
New Deal to liberal. assumptions about the
relationship of individuals, the government
and the market.
Bush has told aides that he cannot
remember precisely when he was intro-
duced to the idea of individual investing as
part of Social Security, and until he ran for
president he did not have a high proftIe on
the issue. But he comes from a family with
deep roots on Wall Street; his great-grandfa-
ther founded an investment bank, and his
grandfather later ran Brown Brothers Harri-
man, one of the most prominent firms in the
worid of finance.
His early political education included
exposure to the ideas of Sen. Barry Gold.
water, the conservative standard~bearer
who in 1964 was among the fIrst Repub-
licans to make a national issue of private
investing as an alternative to traditional
Social Security, and Ronald Reagan, who
also took up the idea.
In Texas, before and during his years
as governor, aides say, Bush learned
about counties that had opted out of
Social Security under an old federal pro-
vision and instead offered their employ~
ees investment accounts. As governor,
his involvement in issues relating to
Latin America piqued his interest in
Chile's retirement system, which gave
workers the chance to invest and became
a prototype for other nations.
As he prepared to run for president,
Bush sought the opinions of people who
shared his belief in private accounts.
including Edward H. Crane, the president
of the Cato Institute, a libertarian.
research organization; Jose Pinera, the
architect of the Chilea.i1 system; and even
a Swedish official who helped revamp
his nation's retirement program.
GOP wearied byfight to
change Social Security
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PUBLIC HEARING NOTICE
RE: EXEMPTION FROM EXPIRATION OF VESTED RIGHTS PARCELS 4, 7 &
8, TOP OF MIU SUBDIVISION (THE '1'ARCEl.S1. ACCORDING TO 7HE
PLAT THEREOF RECORDED IN PlAT BOOK 62 AT PAGE 4 AS RECEPTION
NO. 471 D99 OF THE PITKIN CO\JNTY RECORDS.
NOTICE IS HEREBY GIVEN that a public hearing will be held before the Aspen City
Council at a meeting beginning at 5:00p.m. on Monday, March 14, 2005, at City
Hall, 130 South Galena Street, Aspen, Colorado. TIle purpose of the hearing Is
to consider a request for an exemption from the expiration of vested rights
pursuant to Sectlon 26.308.01081, City of Aspen Municipal Code, for the
properties known and described as Parcels 4, 7 & 8, Top of Mill Subdivision (the
'Parcels'), according to the plat thereof recorded in Plat Book 62 at Page 4 as
Reception No. 471099 of the Pitkin County Records. The names and addresses
of the applicants are as follows: The owner of Parcet 41s Parcel 4 Top of Mill,
llC, a Colorado limited liability company. The owner of Parcel 7 is JP Interests,
llC, a Delaware limited liability company. TIle owners of Parcel 8 are lPRP
River, llC, and lPRP Mill; llC, both COlorado,lImited liability companies. The
address for all owners of the Parcels is care of: Klein, Cote & Edwards, P.C., 201
North Mill Street. St.. 203. Asp.n, CO 81611.
For further information contact Joyce Allgaier, Aspen
Community Development Department at 130 SOuth Galena Street,
Aspen. CO 81611. 970-429-2757 (or by emall at
joycea@ci.aspen.co.us). All affected parties may present
comments and evidence pertinent to the proposal.
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AFFIDAVIT OF PUBLIC NOTICE
REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE
ADDRESS OF PROPERTY: Parcels
7 & 8, Top of Mill Subdi visio:\lAspen, CO
SCHEDULED PUBLIC HEAJRING DATE:
March 14
,200~
STATE OF COLORADO )
) ss,
County of Pitkin )
I, Herbert S. Klein (name, please print)
being or representing an Applicant to the City of Aspen, Colorado, hereby personally
certify that I have complied with the public notice requirements of Section 26304.060
(E) of the Aspen Land Use Code in the following manner:
_ Publication of notice: By the publication in the legal notice section of an official
paper or a paper of general circulation in the City of Aspen at least fifteen (15)
days prior to the public hearing. A copy of the publication is attached hereto.
----X- Posting of notice: By posting of notice, which form was obtained from the
Community Development Department, which was made of suitable,
waterproof materials, which was not less than twenty-two (22) inches wide
and twenty-six (26) inches high, and which was composed of letters not
less than one inch in height. Said notice was posted at least fifteen (15) days
prior to the public hearing and was continuously visible from the 27tJday of
February , 200~ to and including the date and time of the public
hearing. A photograph of the posted notice (sign) is attached hereto.
_ Mailing of notice. By the mailing of a notice obtained from the Community
Development Department, which contains the information described in Section
26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to
the public hearing, notice was hand delivered or mailed by first class postage
prepaid U.S. mail to any federal agency, state, county, municipal government,
school, service district or other governmental or quasi-governmental agency that
owns property within three hundred (300) feet of the property subject to the
development application. The names and addresses of property owners shall be
those on the current tax records of Pitkin County as they appeared no more than
sixty (60) days prior to the date of the public hearing. A copy of the owners and
governmental agencies so noticed is attached hereto.
(continued on next page)
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Rezoning or text amendment. Whenever the official zoning district map is in
any way to be changed or amended incidental to or as part of a general revision
of this Title, or whenever the text of this Title is to be amended, whether such
revision be made by repeal of this Title and enactment of a new land use
regulation, or otherwise, the requirement of an accurate survey map or other
sufficient legal description of, and the notice to and listing of mimes and
addresses of owners of real property in the area of the proposed change shall
be waived. However, the proposed zoning map has been available for public
inspection in the planning agency during all business hours for fifteen (15) days
priM to "" pobli, b=fig 00 ~h =#
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Signature
WITNESS MY HAND AND OFFICIAL SEAL
ATTACHMENTS:
COPY OF mE PUBLICATION
(fHOTOGRAPH OF THE POSTED NOTICE (SIGJliO
LIST OF THE OWNERS AND GOVERNMENTAL AGENCIES NOTICED
BY MAIL
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AFFIDAVIT OF PUBLIC NOTICE
REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE
ADDRESS OF PROPERTY:Parcel 4,
Top of Mill Subdi visioll, Aspen, CO
SCHEDULED PUBLIC HEARING DATE:
March 14
,200L
STATE OF COLORADO )
) ss.
County of Pitkin )
I, Herbert S. Klein (name, please print)
being or representing an Applicant to the City of Aspen, Colorado, hereby personally
certify that I have complied with the public notice requirements of Section 26.304.060
(E) ofthe Aspen Land Use Code in the following manner:
_ Publication of notice: By the publication in the legal notice section of an official
paper or a paper of general circulation in the City of Aspen at least fifteen (15)
days prior to the public hearing. A copy of the publication is attached hereto.
~ Posting of notice: By posting of notice, which form was obtained from the
Cornmunity Development Department, which was made of suitable,
waterproof materials, which was not less than twenty-two (22) inches wide
and twenty-six (26) inches high, and which was composed of letters not
less than one inch in height. Said notice was posted at least fifteen (15) days
prior to the public hearing and was continuously visible from the27thday of
Fehrll"ry , 200...L, to and including the date and time of the public
hearing. A photograph of the posted notice (sign) is attached hereto.
_ Mailing of notice. By the mailing of a notice obtained from the Cornmunity
Development Department, which contains the information described in Section
26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to
the public hearing, notice was hand delivered or mailed by first class postage
prepaid U.S. mail to any federal agency, state, county, municipal government,
school, service district or other governmental or quasi-governmental agency that
owns property within three hundred (300) feet of the property subject to the
development application. The names and addresses of property owners shall be
those on the current tax records of Pitkin County as they appeared no more than
sixty (60) days prior to the date of the public hearing. A copy of the owners and
governmental agencies so noticed is attached hereto.
(continued on next page)
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Rezoning or text amendment. Whenever the official zoning district map is in
any way to be changed or amended incidental to or as part of a general revision
of this Title, or whenever the text of this Title is to be amended, whether such
revision be made by repeal of this Title and enactment of a new land use
regulation, or otherwise, the requirement of an accurate survey map or other
sufficient legal description of, and the notice to and listing of mimes and
addresses of owners of real property in the area of the proposed change shall
be waived. However, the proposed zoning map has been available for public
inspection in the planning agency during all business hourJ1'or fifteen (15) days
prior to the public hearing on such amendments. //
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Signature
of Februar
The foregoing "Mfidavit of Notice" was acknowledged before me this28thday
Herbert S. Klein
WITNESS MY HAND AND OFFICIAL SEAL
Myc
Notary Public
ATTACHMENTS:
COPY OF THE PUBLICATION
(fiiOTOGRAPH OF THE POSTED NOTICE (SiGN])
LIST OF TIlE OWNERS AND GOVERNMENTAL AGENCIES NOTICED
BY MAIL
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March 4, 2005
Chris Lee
pitkin County Community Development
130 S. Galena Sl.
Aspen, CO 816\ \
Re: Consent to Process Land Use Application-
Exemption from Expiration ofYested Rights
Parcel 4, Top of Mill Subdivision
Dear Chris:
This letter authorizes the law firm KLEIN. COTE & EDWARDS, P .C. to process an
application fnr exemption from expiration ohested rights for Parcel 4, Top of Mill
SubdivisionlPUD.
Sincerely,
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-';fMiII, LLC
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March 4, 2005
Chris Lee
City of Aspen Community Development
130 S, Galena St.
Aspen, CO 81611
Re: Consent to Process Land Use Application -
Exemption from Expiration of V esled Rights
Parcel 7, Top of Mill Subdivision
Dear Chris:
This letter authorizes the law finn KLEIN, COTE & EDWARDS, P,C. to process an
application for exemption from expiration of vested rights for Parcel 7, Top of Mill
SuhdivisionlPllD
Sincerely,
lP Interests, LLC
By u~~.
;J./J!u. . 1r''''lJf M.n'!l"f
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March 4, 2005
Chris Lee
City of Aspen Community Development
130 S. Galena St.
Aspen, CO 81611
Re: Consent to Process Land Use Application-
Exemption from Expiration of Vested Rights
Parcel 8, Top of Mill Subdivision
Dear Chris:
This letter authorizes the law firm KLEIN, COTE & EDWARDS, P.C. to process an
application for exemption from expiration of vested rights for Parcel 8, Top of Mill
SubdivisionIPUD.
Sincerely,
LPRP River, LLC
LPRP Mill, LLC 7
//
By: '7f----r..--
Herbert S. Klein, Manager
By: ~/~
Herbert . K1em, Manager
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I KLEIN, COTE & EDWARDS, P.c. I
A TIORNEYS AT LAW
HERBERT S. KLEIN
LANCE R. COTE, PC'
JOSEPH E. EDWARDS. 1IJ.ll.C
MADHU B. KIUSHNAMUUTl
hsk@.kcelaw.net
lrc@.kcelaw.net
jee@kcelaw.net
mbk@k"ct..w.n<>j
201 NORlH MIll. STREET. STE. 203
ASPEN, COWRADO 816] 1
TELEPHONE: (970) 925-8700
FACSlMlLE. (970) 925-3977
".ho6dmilledinCaJifurnia
February 17,2005
Chris Lee
City of Aspen Community Development Department
130 South Galena St.
Aspen, CO 81611
Re: Parcels 4, 7 & 8, Top of Mill Subdivision;
Exemption from Expiration of Vested Rights
Dear Chris:
The rea.on that the owners of Parcels 4, 7 & 8, Top of Mill Subdivision are seeking
exemption from expiration of vested rights is that we have been informed that the City is
considering changes to the L/TR zone district, which is the underlying zone district for this PUD.
Also, the statutory vested rights are currently scheduled to expire in March of this year.
Please let me know if you have any additional questions.
Sincerely,
KLEIN, COTE & EDWARDS, P.C.
S -, //
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EXECUTION COPY
SUBDIVISION/PUD AGREEMENT
FOR
TOP OF MILL SUBDlVISIONIPUD
THIS SUBDIVISION/PUD AGREEMENT ("Agreement") is made and entered this /J/4
day of August 2002, by and between the CITY OF ASPEN, COLORADO, a Colorado municipal
corporation ("City") and TOP OF MILL INVESTORS, LLC, a Delaware limited liability company
("TOMI").
RECITALS
WHEREAS, the City and Savanah Limited Partnership, a Delaware limited partnership
("Savanah''), are parties to that certain First Amended and Restated Planned Unit
Development/Subdivision Agreement Aspen Mountain Subdivision ("First Amended PUD
Agreement") dated October 3, 1988 and recorded in the records of Pitkin County, Colorado, on
October 3, 1988 in Book 574 at Page 792, as the same has been amended as hereinafter more
particularly set forth; and
WHEREAS, on January I 1,2001 TOMI acquired from Savanah certain real property situated
within the Aspen Mountain Subdivision, which real property is also situated within the municipal
boundaries of the City known as Lot 3, First Amended Plat Aspen Mountain Subdivision and
PIanned Unit Development, according to the Plat thereoffUed October 3, 1988 in Plat Book 21 at
Page 35 ("Top of Mill"); and
WHEREAS, the First Amended PUD Agreement directs that at such time as Top of Mill
receives final PUD development approval, a PUD Agreement shalI be executed by the parties setting
forth such final approya1s and incorporating all conditions and assurances that may be reasonably
required by the City in connection therewith; and
WHEREAS, TOMI has submitted to the City an Application for Final PUD Development
Plan ApproYal (the "Application") pursuant to the June 1996 reprint of Title 26, Land Use
Regulations of the 1995 Aspen Municipal Code (the "1996 Code'') including approval, execution
and recordation of a Final Plat for Top of Mill (the "Final Plat"); and
WHEREAS, the City has fully considered the Application and the Final Plat, the proposed
development and improvement of Top of Mill contained therein, and the effects of the proposed
deyelopment and improvement of said lands on adjoining or neighboring properties and property
owners; and
WHEREAS, the City has imposed certain conditions and requirements in connection with its
approval, execution and recordation of the Final Plat, such matters being necessary to protect,
promote and enhance the public welfare; and
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EXECUTION COPY
WHEREAS, TOM! is willing to acknowledge, accept, abide by and faithfully perform the
conditions and requirements imposed by the City in approving the Application and the Final Plat;
and
WHEREAS, under the authority of Sections 26.84.040(C and D) and 26.88.050(C and D) of
the 1996 Code, the City is entitled to certain financial guarantees to ensure that (i) the required public
facilities are installed and (ii) the required landscaping is installed and maintained, and TOM! is
prepared to provide such guarantees as hereinafter set forth.
NOW, TIIEREFORE, for and in consideration of the mutual covenants and agreements
contained herein, the approval, execution and acceptance of the Final Plat for recordation by the City,
and for other good and yaluable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
ARTICLE 1
PURPOSE AND EFFECf OF AGREEMENT
I.I Prior Amendments to the First Amended PUD Agreement. The parties
acknowledge and agree that the First Amended PUD Agreement has previously been amended by the
following, which shall hereinafter be collectively referred to as the "Section M Amendments":
(a) June 1990 Section M Amendment.
(b) June 1991 Section M Amendment.
(c) August 1992 Section M Amendment.
(d) October 1992 Section M Amendment.
(e) February 1993 Section M Amendment.
(f) June 1995 Section M Amendment (Ordinance No, 33-95).
(g) May 1998 Section M Amendment (Ordinance No. 8-98).
(h) September 1999 Section M Amendment (Ordinance No. 38-99).
(i) December 2000 Section M Amendment (Ordinance No. 53-00).
0) June 2002 Section M Amendment (Ordinance No. 15-02).
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EXECUTION COPY
1.2 Purpose of this Agreement. This Agreement is executed by the parties in
accordance with the requirements of the First Amended PUD Agreement, as amended by the Section
M Amendments, that a new PUD Agreement be executed at the time offmal deyelopment approval
for Top of Mill. The purpose of this Agreement is to set forth the complete and comprehensiye
agreement between the parties with respect to the deyelopment that has been approved for Top of
Mill and to enumerate all tenns and conditions under which such development may occur. The
effect of this Agreement is to tenninate, supersede and replace all provisions of the First Amended
PUD Agreement and the Section M Amendments, which relate in any manner to Top of Mil 1. In the
event of any inconsistency between the provisions of this Agreement and the provisions of the First
Amended PUD Agreement, as amended by the Section M Amendments, the provisions of this
Agreement shall control. Nothing in this Agreement modifies, revokes, amends or affects any
provision of the First Amended PUD Agreement, as amended by the Section M Amendments, which
relates to Lot 1, 2, 4, 5 or 6 of the Aspen Mountain SubdivisionIPUD, unless expressly revoked or
modified hereby. All provisions of the First Amended PUD Agreement, as amended by the Section
M Amendments, which relate to Lots 1,2,4,5 and 6 of the Aspen Mountain SubdivisionIPUD, shalI
remain in full force and effect, except to the extent they may be otherwise amended.
ARTICLE 2
DEVELOPMENT REQUIREMENTS AND RESTRICTIONS
2.1 Zoning and Regulatory Approvals.
(a) Resolution and Ordinance of Approval. Conceptual PUD deyelopment plan
approval for Top of Mill was granted by the Aspen City Council in Resolution No. 99-93,
approyed and adopted on December 6, 1999. By adoption of Resolution No. 0 I-50, adopted
on May 29, 2001, the Aspen City Council granted amended conceptual PUD Deyelopment
Plan approval for Top of Mill, which is to be subdivided into eight (8) deyelopment parcels,
two (2) open space parcels and a parcel of approximately 2,745 square feet containing an
existing parking garage ("Parcel 9") for the benefit of Lot 2, Aspen Mountain
SubdivisionIPUD, known as the Summit Place Condominiums. By adoption of Ordinance
No.7, Series of2002, adopted on March 11,2002 and recorded April 19, 2002 as Reception
No. 466392 ("Ordinance No.7"), the Aspen City Council granted Final PUD Development
Plan and Subdivision Approval for Top of Mill. Ordinance No.7 also granted (i) a growth
management quota system exemption for the affordable housing units to be constructed on
Parcel 2, Top of Mill; (ii) rezoning of that portion of Top of Mill preyiously zoned R-15
(PUD) (L), Moderate-Density Residential, Planned Unit Development, Lodge Overlay and a
portion of Top of Mill zoned C, Conservation to urn. (PUD), Lodge!Tourist Residential,
Planned Unit Development; (iii) Condominiumization, Mountain Viev\' Plane, Special
Review, and 8040 Greeniine Review; and (iy) approval to construct an Accessory Dwelling
Unit ("ADU") on Parcel 3 of Top of Mill. The exterior boundaries of the eight (8)
deyelopment parcels, two (2) open space parcels and Parcel 9 are depicted on the Final Plat
for Top of Mill which will be recorded contemporaneously with this Agreement. The Final
Plat for Top of Mill also depicts the allowed building set backs within the eight (8)
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EXECUTION COpy
development parcels. TOMI shall convey Parcel 9 to the Summit Place Condominium
owners association immediately after the Final Plat for Top of Mill is recorded and, upon
such conveyance, Parcel 9 shall not be covered by, or subject to this Agreement except as set
forth in Paragraphs 2.1 (b Xii) and (iii) and 2.2(hh) below. The instrument by which TOMI
conveys Parcel 9 shall contain a restriction to ensure that Parcel 9 will always serve to
provide parking for the benefit of Lot 2, Aspen Mountain Subdivision and that development
on Parcel 9 shall be limited to the existing garage and trash storage structures or any
replacement thereof. Pursuant to Section 26.304.060.B of the April 2000 reprint of Title 26,
Land Use Regulations of the 1995 Aspen Municipal Code, the Community Development
Director, in consultation with TOMI, permitted and directed a modification in review
procedures to combine Final PUD Development Plan, Subdivision, Condominiumization,
Mountain View Plan, Special Review, GMQS Exemption, 8040 Greenline Review and
Rezoning Review forthe purposes of ensuring economy of time and clarity. This Agreement
incorporates all the provisions of Ordinance No.7. To the extent of any conflict between the
tenns of this Agreement and the provisions of Ordinance No.7, this Agreement shall govern
and control.
(b) PUD Variations. Pursuant to Ordinance No.7, the Aspen City Council
approved the following variations in the dimensional requirements of the UIR,
LodgeITourist Residential and C, Conservation zone districts:
(i) Maximum Lot Size. An increase in the maximum lot size for single
family and duplex dwelling units. The size of Parcels 3, 4, 5, 6, 7 and 8 shall be as
depicted on the Final Plat for Top of Mill to be recorded contemporaneously with this
Agreement.
(ii) Minimum Lot Size. A reduction in the minimum lot size requirement.
The size of Parcel 9 and Open Space Parcel B shall be as depicted on the Final Plat
for Top of Mill to be recorded contemporaneously with this Agreement.
(iii) Minimum Setbacks. A reduction in the minimum setback
requirements. The front, side and rear yard setbacks on Parcel 9 shall be as depicted
on the Final Plat for Top of Mill to be recorded contemporaneously with this
Agreement.
(c) Parking, 8040 Greenline and Mountain Viewplane Approval. Pursuant to
Ordinance 7, the Aspen City Council granted (i) special review approval of the off-street
parking requirements for the affordable housing units approved for deyelopment on Parcel 2,
Top of Mill, (ii) 8040 greenline approval for Parcels I, 2 and 3, Top of Mill and (iii)
mountain yiewplane approval for all development parcels on the Top of Mill. The
development of the free market single-family dwellings proposed for Parcels 4 _ 8 shall be
subject to a site and design specific 8040 Greenline Review prior to their development. These
Parcels shall only be required to respond to reyiew standards 26,68.030 (C)(3) and 26.68.030
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EXECUTION COPY
(C)(7) of the 1996 Code. Ordinance No.7 approves Parcels 4- 8 regarding 8040 Greenline
Review Standards 26,68.030 (C)(I, 2, 4, 5, 6, 8, 9, 10, and 11) of the 1996 Code thereby
precluding any further review of such standards.
(d) Vested Rights. In accordance with the requirements ofC.RS. 24-68-103(b) a
properly noticed public hearing concerning the establishment of vested property rights for
Top of Mill was conducted on March 11,2002. As authorized by C.RS. 24-68-102(4)(a),
City and TOM! hereby agree that the Final Plat, the Top of Mill Final POO Deyeloprnent
Plan and all other documents recorded contemporaneously therewith, collectively constitute
the site specific development plan as used in Article 68, Title 24, CRS., for Top of Mill. In
accordance with applicable provisions of Ordinance No.7, Series of 2001, the City has
granted vested property rights for a period of three (3) years from the date of approval of
Ordinance No.7, for the deyelopment of Top of Mill in accordance with the documents
which are herein agreed to constitute the site specific development plan for Top of Mill.
2.2 Development Approvals. Top of Mill has been approved for subdivision into eight
(8) development parcels, identified on the Final Plat and throughout this Agreement as Parcels 1, 2,
3,4,5,6,7 and 8, two (2) open space parcels which are identified as Open Space Parcels A and B on
the Final Plat, and Parcel 9 which is identified as Parcel 9 on the Final Plat. The eight (8)
development parcels on Top of Mill may be deyeloped as follows:
(a) Development on Parcell. Approval is hereby granted for the development of
six (6) free market, four-bedroom, multi-family townhouse units on Parcel I. Such units shall be
contained in two (2) separate triplex Structures. Each individual townhouse unit shall contain no
more than 4,500 square feet of floor area. Deyelopment on Parcel I is limited to a maximum
allowable floor area of27,OOO sqUlll'e feet. TOM! shall further subdivide Parcell by the creation of
a common interest community. Prior to the conyeyance of any interest in Parcel I, a common
interest community plat for either a condominium or planned community (as detennined by TOMI)
shall be duly recorded. TOM! shall record the approved condominium (or planned community)
subdivision plat for Parcel I in the office of the Pitkin County Clerk and Recorder within one
hundred eighty (180) days ofits approYal by the Community Development Director. !froM! fails to
record the approved plat within one hundred eighty (180) days following approval by the Community
Development Director, the plat shall be invalid and TOMI shall be required to submit a new plat to
the Community Deyelopment Director for approval.
(b) Development on Parcel 2. ApproYal is hereby granted for the development of
four (4) affordable housing units on Parcel 2. Such units shall be contained within a single
multifamily Structure. Three (3) of said units shall be three-bedroom units, each having no
less than 1550 square feet of net livable area and the fourth unit shall be a four-bedroom unit
having no less than ] 870 square feet of net livable area; provided, however, that the actual
amount of net livable area in each unit shall be determined at the time of building permit
application. Development on Parcel 2 is limited to a maximum allowable floor area of8,000
square feet. TOM! shall further subdivide Parcel 2 by the creation of a c,ommon interest
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community. Prior to the conveyance of any interest in Parcel 2, a common interest
community plat for either a condominium or planned community (as determined by TOMI)
shall be duly recorded. TOMI shall record the approved condominium (or planned
community) subdivision plat for Parcel 2 in the office of the Pitkin County Clerk and
Recorder within one hundred eighty (I80) days of its approval by the Community
Deyelopment Director. If TOMI fails to record the approved plat within one hundred eighty
(180) days following approyal by the Community Development Director, the plat shall be
invalid and TOMI shall be required to submit a new plat to the Community Deyelopment
Director for approval. The affordable housing units to be developed on Parcel 2 shall comply
with all representations made by TOMI in connection with the Application and comply with
the deed restrictions administered by APCHA. A master owner's association for Top of
Mill to be known as "Top of Mill Master Association", or such other name detennined by
TOM! (the "Master Association") will be fonned as a master association to exercise the
functions set forth in the Master Declaration of Protective Coyenants of Top of Mill (the
"Master Declaration") and to own, lease, hold, operate, care for and manage certain property
for the common benefit of owners of the Parcels within Top of Mill. A separate owners
association shall be created for the affordable housing units on Parcel 2, which shall
participate in, and be subject to the Master Association and Master Declaration. The Master
Declaration shall provide that all annual and special assessments under the Master
Declaration shall be allocated 1/l7lh to each of the four (4) affordable housing units on Parcel
2, and that until such time as the units are constructed, Parcel 2 shall be allocated 41l7dl of all
annual and special assessments. In addition, there will be a separate assessment for
maintenance, repair, replacement or improyements to Top of Mill Street (the private road
shown on the Final Plat) and the sidewalks within Top of Mill (the "Private Road
Assessment"). Six percent (6%) of the Private Road Assessment shall be allocated to Parcel
2 (i.e., 1.5% per unit for each of the four (4) affordable housing unitS on Parcel 2).
Notwithstanding the foregoing allocations, the Master Declaration shall provide that annual
and special assessments and Private Road Assessments against any affordable housing unit
on Parcel 2 shall not exceed one thousand dollars ($1000.00) per unit per year.
38181-16
(i) Affordabilitv of Parcel 2 Units. The four (4) affordable housing units
approved for development on Parcel 2 completely satisfy all requirements of the
City's Multifamily Housing Replacement Program with respect to the demolition of
multi-family dwelling units on all of (i.e., Lots I, 2, 3, 4, 5 and 6) the Aspen
Mountain SubdiyisionIPUD. TOMJ shall meet with APCHA to maintain the average
price of the of the four (4) affordable housing units approved for development on
Parcel 2 to APCHA Category 2, but to price one pfthe three bedroom units shall be
priced between Category I and 2, and the price of the 4-bedroom unit shall be
between Category 2 and 3, but marketed and sold as a Category 3 unit. Three of the
four units on Parcel 2 shall be distributed and sold under the general lottery through
APCHA. TOMI shall be able to choose a buyer for one of the units (and designate
the unit to be purchased). However, the buyer chosen by TOM! must be a fully
qualified employee under the category for the unit chosen; i.e., the potential buyer
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must meet income and asset requirements, meet minimum occupancy requirements,
not own any other property in the Roaring Fork Drainage System, and have worked
in Pitkin County 1500 hours per year for the previous four years. At the time a
Certificate of Occupancy is issued for any affordable housing unit constructed on
Parcel 2, APCHA shall have the right to conduct a site visit.
(c) Development on Parcel 3. Approyal is hereby granted for the development of
two (2) free market dwelling units on Parcel 3. Such units shall be contained within one (I)
duplex structure. Each dwelling unit within the duplex structure may contain a maximum of
four bedrooms and no more than 4,500 square feet of floor area. Development on Parcel 3 is
limited to a maximum allowable floor area of 9,000 square feet. TOM! shall further
subdivide Parcel 3 by the creation of a common interest community. Prior to the conveyance
of any interest in Parcel 3, a common interest community plat for either a condominium or
planned community (as determined by TOM!) shall be duly recorded. TOM! shall record the
approved condominium (or planned community) subdivision plat for Parcel 3 in the office of
the Pitkin County Clerk and Recorder within one hundred eighty (I 80) days of its approval
by the Community Development Director. If TOM! fails to record the approved plat within
one hundred eighty (180) days following approyal by the Community Development Director,
the plat shall be inyalid and TOM! shall be required to submit a new plat to the Community
Development Director for approval.
(i) Accessorv Dwellinl! Unit on Parcel 3. One (I) of the units within the
duplex structure approved for deyelopment on Parcel 3 shall contain an ADD or the
owner of Parcel 3, at its election, shall make a cash in lieu payment thereof. The
ADU shall be deed restricted and constructed in accordance with the City's ADD
regulations under the 1996 Code. At the time a Certificate of Occupancy is issued for
the ADD, APCHA shall haye the right to conduct a site visit. If the owner of parcel 3
elects not to construct the ADD, a cash in lieu payment shall be made in accordance
with the City's ADU regulations in effect at the time of building permit issuance.
(d) Development on Parcel 4. ApproYal is hereby granted for the development of
one (I) detached, free market single family residence on Parcel 4. Development on Parcel 4
is limited to a maximum allowable floor area of 6,200 square feet, which shall include the
ADD if constructed at the owner's election under Section 2.2(i), below.
(e) Development on Parcel 5. Approval is hereby granted for the deyelopment of
one (I) detached, free market single family residence on ParcelS. Development on ParcelS
is limited to a maximum allowable floor area of 5,200 square feet, which shall include the
ADD if constructed at the owner's election under Section 2.2(i), below.
(f) Development on Parcel 6. Approval is hereby granted for the development of
one (I) detached, free market single family residence on Parcel 6. Development on Parcel 6
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is limited to a maximum allowable floor area of 5,200 square feet, which shall include the
APU if constructed at the owner's election under Section 2.2(i), below.
(g) Development on Parcel 7. Approval is hereby granted for the development of
one (I) detached, free market single family residence on Parcel 7. Development on Parcel 7
is limited to a maximum allowable floor area of 6,500 square feet, which shall include the
ADU if constructed at the owner's election under Section 2.2(i), below.
(h) Development on Parcel 8. ApproYal is hereby granted for the development of
one (I) detached, free market single family residence on Parcel 8. Development on Parcel 8
is limited to a maximum allowable floor area of 6,500 square feet, which shall include the
ADU if constructed at the o~er's election under Section 2.2(i), below.
(i) Accessory Dwelling Units on Parcels 4, 5, 6, 7 and 8. Each of the single
family detached units approyed for construction on Parcels 4, 5, 6, 7 and 8 shall contain an
ADU, or the owner of each Parcel, at his election, shall make a cash in lieu payment thereof,
The decision whether to construct an ADU or make a cash in lieu payment may be made on
a parcel-by-parcel basis. If an ADU is constructed, it shall be approved, deed restricted and
in eyery other respect constructed in accordance with the City's ADU regulations in effect at
the time of building permit application for each structure. If a cash in lieu payment is made,
it shall be made in accordance with the City's ADU regulations in effect at the time of
issuance of the applicable building permit If an ADU is constructed on any Parcel, at the
time a Certificate of Occupancy is issued for the ADU, APCHA shall have the right to
conduct a site yisit.
(j) Exemptionfrom GMQS. The thirteen (13) free market units approYed for
development on Top of Mill as hereinabove described are exempt from the City's growth
management quota system as the development rights for such units are derived from the 47
residential development rights held by TOM! under theJ,irst Am~nd~.flIDAgreement.
TOM!' s construction of the four (4) deed restricted affordable housing units on Parcel 2 and
the six (6) ADU's on Parcels 3-8 (or payment of cash in lieu thereof from the owners of
Parcels 3-8), shall constitute compliance with all applicable City regulations with respect to
the demolition and reconstruction of existing single family, duplex and multi-family
residential units on all of (i.e., Lots I, 2, 3, 4, 5 and 6) the Aspen Mountain
Subdhdsion/PUD. No further affordable housing shall be required in connection with the
development of Top of Mill as approved in this Agreement It is understood that upon
recording of this Agreement and recording of the Subdivision/PUD Agreement for Lot 5,
Aspen Mountain Subdivision/PUD, no residential credits associated with the Aspen
Mountain Subdi vision/PUD will remain (it being understood that all remaining residential
credits associated with the Aspen Mountain Subdivision/PUD will have been used in
Connection with Top of Mill and said Lot 5, Aspen Mountain SubdivisionPUD).
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(k) Calculation of Floor Area. The calculation of allowable floor area for all
structures and units approved for development on Top of Mill shall be made in accordance
with the City's floor area regulations in effect at the time of the building permit application
for each particular structure; provided, however, the maximum allowable floor areas set forth
in this Agreement shall not be reduced (i.e., all required adjustments for calculating
allowable floor area, such as steep slopes, easements, etc., have already been considered in
detennining the floor areas set forth in this Agreement).
(I) Parking. A minimum of twelye (12) off-street parking spaces shall be
proyided on Parcell; eight (8) off-street parking spaces shall be provided on Parcel 2; four
(4) off-street parking spaces shall be proyided on Parcel 3; and two (2) off-street parking
spaces shall be provided on each of Parcels 4 - 8.
(m) Common Access Driveway, Access Road and Sidewalk, Curb and Gutter.
(i) Common Access Drivewav. Vehicular access to the townhouse 1.mits
on Parcel I shall be from a common driveway from Mill Street. rOMI shall be
responsible to construct the Parcel I common driveway in connection with the
construction of any improvement on Parcel I. After completion of construction of
the common driyeway, all costs associated with the maintenance and repair,
including snowplowing, of the common driveway shall be paid by the owners of the
units located on Parcell.
(ii) Access Road. Vehicular access to Parcels 2 through 8 shaI1 be from a
private road, identified on the Final Plat as "Top of Mill Street", to be extended from
the existing tenninus of South Mill Street. TOMI has dedicated on the Final Plat, for
the benefit of owners of Parcels 2 through 8, their guests and invitees, a perpetual
non-exclusive easement for all ingress and egress purposes upon Top of Mill Street.
rOMI shall be responsible for the construction of Top of Mill Street as a subdivision
improvement in accordance with Section 2.3 of this Agreement. After completion of
said construction, all costs associated with the maintenance and repair, including
snowplowing, of Top of Mill Street, shall be paid by owners of Parcels 2 through 8,
(iii) Sidewalk. Curb and Gutter. TOMI shall install a sidewalk along the
west side of Mill Street between Summit Street and the entrance to Top of Mill
Street. TOMI shall install a curb and gutter on the west side of Mill Street adjacent
to Parcell and along Top of Mill Street. Such improvements shall be installed as
subdivision improvements in accordance with Section 2.3 of this Agreement and as
shown on the Final PUD Development Plan for Top of Mill to be recorded
contemporaneously with the Final Plat and this Agreement.
(n) Utilities. TOM! shall install all utilities shown on the Schematic Utility Plan
for Top of Mill to be recorded contemporaneously with the Final Plat and this Agreement.
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All such utilities shall be installed as subdivision improvements in accordance with Section
2.3 of this Agreement. TOMI shall be required to show to the Aspen Consolidated
Sanitation District ("ACSD") all service locations at the station numbers on the final utility
plans for Top of Mill prior to building permit application. Additionally, TOMI shall indicate
to the ACSD if main line easements within any City rights-of-way are to be dedicated by plat
or by description. In addition, TOMI shall execute a "Line Extension Request" and a
"Collection System Agreement" with ACSD prior to building permit application. Unless
otherwise agreed to by TOMI and ACSD: (i) forty percent (40%) of the estimated total
connection fees must be paid by rOMI to ACSD at the time service lines are stubbed off the
main line into the specific Parcels of Top of Mill and (ii) the remaining balance of the
connection fees shall be paid by the owner of the Parcel at the time service is established to
such owner's Parcel.
(0) Landscaping. TOMI shall install and otherwise implement all landscaping for
Parcels 1,2,3 and Open Space Parcel A depicted on the approyed Landscape Plan, which is
to be recorded contemporaneously with the Final Plat and this Agreement. Landscaping for
Parcels 4-8 shall be the responsibility of the respectiye owners of those Parcels.
(P) Trail Easements.
38181-16
(i) Tpp of Mill Trail. The Final Plat yacates the Top of Mill Trail
Easement as shown on the First Amended Plat Aspen Mountain Subdivision and
Planned Unit DeveIopment filed October 3, 1988 in Plat Book 21 at Page 35 (the
"First Amended Plat"). The new Top ofMiII Trail Easement shall be dedicated to
the public for pedestrian purposes, as more fully set forth in that certain Top ofMilI
Trail Easement Agreement between TOMI and the City of Aspen attached hereto as
Exhibit "A-I", to be recorded after: (I) publicly dedicated trails through adjoining
lands have been connected up with the easterly and westerly ends of said Top of Mill
Trail Easement; (2) the City of Aspen notifies TOMI thereof; and (3) an as-built legal
description is available (and provided by TOMI) for the portion of the Top of Mill
Trail Easement lying between the western boundary of Parcels 1 and 8 and the
western boundary of Open Space Parcel B (it being understood that the Final Plat
merely indicates the general vicinity of the new Top of Mill Trail Easement in that
area and that the Top of Mill Trail Easement in that area will be located and aligned
after the trail is constructed in that area). The public dedication shall also include the
right, on the part of the public, to cross Top of Mill Street in order to utilize the Top
of Mill Trail Easement. Until such time as said public dedication shall become
effective, TOMI dedicates and sets apart to the Master Association for the exclusiye
use and benefit of the owners, from time to time, of Parcels 1 through 8, their guests
and invitees, for pedestrian purposes, an easement across and through said Top of
Mill Trail Easement. Upon conveyance to the Master Association of said Top of Mill
Trail Easement and until the public dedication shall become effective, the Master
Association shall be: ( a) responsible for the maintenance of said trail and (b) entitled
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to adopt and enforce reasonable rules and regulations concerning the use thereof.
TOMI, for itself, its successors and assigns, shall improve the Top of Mill Trail
Easement as it lies within Top of Mill by constructing a four-foot (4') wide single
track path with underlying matting and a crusher-fine surface; provided, however,
that TOMI shall haye no obligation to improve that portion of the Top of Mill Trail
Easement lying between the Aspen Mountain Trail and the western boundary of
Open Space Parcel B unless and until publicly dedicated trails through adjoining
lands haye been connected up with the easterly and westerly ends ofT op of Mill Trail
Easement. IfTOMI has not improved the Top of Mill Trail Easement as required
herein at the time the public dedication becomes effective, TOMl shall deposit into
escrow with the City of Aspen sufficient funds, in an amount determined by the City,
to pay of the cost of completing said improyements. If said improvements have not
been completed within five (5) years of the date this Agreement is recorded, whether
due to the fact that publicly dedicated trails through adjoining lands have not been
connected up with the easterly and westerly ends of said Top of Mill Trail Easement
or otherwise, the funds deposited into escrow by TOMI for this purpose shaI1 be
released to the City and TOMI shall thereafter be relieved of any further obligation to
improve the Top of Mill Trail Easement Upon recordation of the Top of Mill Trail
Easement Agreement, the portion of the Top of Mill Trail Easement depicted on the
Final Plat located between the western boundary of Parcels I and 8 and the western
boundary of Open Space Parcel B shall automatically be vacated and replaced by thc
portion of the Top of Mill Trail Easement in that area described in the Top ofMilI
Trail Easement Agreement
38181-16
(ii) ASDen Mountain Trail. The Final Plat vacates the Aspen Mountain
Trail as shown on the First Amended Plat. The Aspen Mountain Trail Easement
shown on the First Amended Plat will be replaced by a new Aspen Mountain Trail
Easement to be located and aligned in the general vicinity depicted on the Final
Plat; howeyer, the Aspen Mountain Trail Easement depicted on the Final Plat
merely indicates the general vicinity of the new Aspen Mountain Trail Easement.
The new Aspen Mountain Trail Easement shaII be dedicated to the public for
pedestrian and skiing purposes only as more fully set forth in that certain Aspen
Mountain Trail Easement Agreement between TOMI and the City of Aspen
attached hereto as Exhibit "A-2", to be recorded at a later date (the "Aspen
Mountain Trail Easement Agreement"). The Aspen Mountain Trail Easement
Agreement shall be recorded after TOMI and the City of Aspen have agreed upon
the actual location and alignment for the new Aspen Mountain Trail Easement.
After TOMI and the City of Aspen have agreed upon the actuailocation and
alignment for the new Aspen Mountain Trail Easement, TOM! shall provide in
recordable form an as-built legal description of said new Aspen Mountain Trail
Easement that sball be attached to, and recorded with, the Aspen Mountain Trail
Easement Agreement. Upon recordation of the Aspen Mountain Trail Easement
Agreement, the Aspen Mountain Trail Easement depicted on the Final Plat shall
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automatically be vacated and replaced by the Aspen Mountain Trail Easement
described in the Aspen Mountain Trail Easement Agreement.
(q) Drainage. TOMI shall install the drainage improvements shown on the
Grading and Drainage Plan to be recorded contemporaneously with the Final Plat and this
Agreement. Drainage improvements shall be instaUed as a subdiyision improvement in
accordance with Section 2.3 of this Agreement. In addition, TOMI has granted the City a
twenty foot (20') wide utility easement between Parcels 4 and 5 and over Open Space Parcel
A as depicted on the Final Plat to be used solely for the purpose of allowing the City to
install, maintain and repair a storm drain pipe within said easement, as more fully set forth in
that certain Storm Drain Pipe Easement Agreement between TOMI and the City of Aspen
attached hereto as Exhibit "B" to be recorded contemporaneously with this Agreement.
(r) Air Quality. During all COnstruction actiyities on Top of Mill, TOMI shall
comply with the fugitive dust control specification included as part of the Construction
Management Plan that will be submitted prior to building permit issuance. All development
within Top ofMiII shall comply with the Environmental Health Department's woodburning
stoYe!flfeplace regulations in effect at the time of issuance of the applicable building permit.
(s) Improvement Districts. On behalf of itself and all future owners of any
property within Top of Mill, TOM! hereby agrees to join any future improvement districts
that may be formed for the purpose of constructing improvements that benefit the subject
property under an assessment formula To the extent any future improvement districts are
formed for storm sewers, storm water retention or slope movement, TOMI shall receive a
credit against any amounts that may be assessed against it for amounts paid pursuant to
subparagraphs (dd), (ee) or (ff) below.
(t) School Land Dedication Fees. The owner of each Parcel shall pay the
required School Land Dedication Fee to the City of Aspen, which is due and payable at the
time of building permit application for the development of its parcel. This fee shall be
assessed at the rate of the regulations and calculations in effect at the time of the building
permit application.
(u) Park Development Impact Fees. The owner of each Parcel shall pay the
required Park Deyelopment Impact Fee to the City of Aspen, which is due and payable at the
time of building permit application for the deyelopment of its parcel. This fee shall be
assessed at the rate of the regulations and calculations in effect at the time of the building
permit application.
(v) Exterior Lighting. All exterior lighting within Top of Mill shall comply with
the Site and Exterior Lighting Plan to be recorded contemporaneously with the Final Plat and
this Agreement. TOMI shall be required to submit detailed "cut sheets" for the proposed
38181-16
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street lights on Top of Mill indicating the correct lumens on the lighting plan as part of the
detailed building set to be examined during building permit review.
(w) Work in Public Rights-of Way. TOMI shall first receive the approval of the
appropriate City Department and/or utility/service district prior to COmmencement of any
work within a public right-of-way.
(x) Damage to Public Rights-ofWay. TOMI shall repair any public right-of-way
damaged during construction on any Parcel within Top of Mill prior to issuance of a
certificate of occupancy for any structure on said Parcel.
(y) Construction Hours. Construction activity within Top ofMilI shall be limited
to the hours between 7:00 a.m. and 7:00 p.m., Monday through Saturday. No construction
activity shall be permitted on Sunday.
(z) Construction Management Plan. During all construction activities on Top of
Mill, TOMI shall comply with the Construction Management Plan that will be submitted
prior to building permit issuance.
(aa) Infrastructure and Removal of Fill. TOM! shall have the right to apply for
pennits for construction of infrastructure and removal of fill from Top of Mill at any time
after approyal of Ordinance No.7.
(bb) Erosion Control. Erosion control plans, including potential natural resource
protection structures, and a detailed plan for irrigation systems and other plantings within the
City of Aspen right-of-way shall be submitted by TOMI to the Parks Department for
approval prior to the application of building permits. Separate erosion control plans shall be
submitted by the owners of each Parcel prior to the issuance of a building permit for their
respective Parcels.
(cc) Street Impact Fees. TOMI and Grand Aspen Lodging, LLC have contributed
$83,000.00 in Street Impact Fees to the City of Aspen in connection with the proposed
development on Top of Mill and on Lot 5 of the Aspen Mountain SubdivisionIPUD. No
additional street impact fees will be charged in connection with Top of Mill or Lot 5 of the
Aspen Mountain SubdivisionIPUD.
(dd) Storm Sewer. The City of Aspen has agreed to install a storm sewer pipeline
adjoining Mill Street and the southern property line ofTop of Mill that will run down Mill
Street and tap into the City's existing storm sewer line at or above Durant Street. TOMI has
paid the City $14,000.00 towards the cost of designing a complete infrastructure system for
South Mill Street and will pay up to an additional $66,000.00 towards the cost of such
system within 30 days after completion, as long as it is completed by October 1,2002. Once
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the infrastructure has been constructed at Top of Mill, TOMI shall connect the Top of Mill
storm sewer system with the City's and there shall be no cost to TOMI to do so.
(ee) Rio Grande Ponds. The City has a plan to upgrade its storm water retention
ponds at Rio Grande Park, the cost of which shall be bome by all new deyelopment in the
City. TOMI and Grand Aspen Lodging, LLC shall contribute $144,000.00 towards the
construction of such upgrades within six (6) months of the latest to occur of (i) the recording
of the Final Plat or (ii) the recording of the final plat for Lot 5 of the Aspen Mountain
SubdivisioolPUD. No additional costs of the upgrades will be charged to TOMI, Grand
Aspen Lodging, LLC or the owners of any real property within Top of Mill or Lot 5 of the
Aspen Mountain SubdivisioolPUD. If the City has not proceeded with the aforementioned
upgrades within five years of the date of this Agreement, the entire $144,000.00 (plus
accrued interest) shall be returned to TOMI and Grand Aspen Lodging, LLC.
(ff) Slope Movement Monitoring System. The City Engineering Department has
requested TOMI to voluntarily contribute $55,000.00 towards the cost of studying and/or
developing a slope moyement monitoring system for slopes above the City of Aspen.
Although TOMI is not aware of any need for such system, or has ever been shown the
necessity of such a system aboye Top of Mill, TOMI has agreed to contribute $55,000.00 for
such purpose with the restriction that such funds be used solely for studying and/or
developing a system for slopes above Top of Mill. TOMI's contribution under this
paragraph shall be made within six (6) months of the recordation of the Final Plat. The City
shall hold such funds in escrow and shall be dispersed only for the purposes described in this
paragraph and upon mutual approval ofTOMI and the City. If the City has not proceeded
with the aforementioned study and/or development within three years of the date of this
Agreement, the entire $55,000.00 (plus accrued interest) shall be returned to TOMI.
(gg) Fire Protection. Fire sprinklers and alarm systems shall be installed in all the
proposed buildings on Top of Mill as required by the City of Aspen Fire Marshal.
Appropriate "booster pumps" (if required) mther than pressure tanks for the sprinkler system
shall be used to gain the necessary water pressure as required by the City Fire Department.
The owner of each Parcel shall be responsible for ensuring that any buildings constructed
thereon shall comply with this condition of approval. In addition, TOMI sha1I submit a fire
safety plan for the demolition of the existing structures to be preformed by TOMI and the
construction of the proposed development of Top of Mill to the Engineering Department at
the time of building permit application.
(hh) Development on Parcel 9. Development on Parcel 9 shall be limited to the
existing garage and trash storage structures and any replacement thereof (whether due to
casualty, obsolescence or otherwise), which replacement shall be for the same use; occur
only within the footprint of said existing structures and the existing square footage of said
structures cannot be increased. The provisions of this Paragraph 2.2(hh) and 2.1 (b)(ii) and
(iii) aboye shall be binding on Parcel 9.
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2.3 Subdivision Improvements. TOMI shall complete the following subdivision
improvements, all as depicted on the Final PUD Development Plan for Top of Mill, which is
attached to and recorded as a part of the Final Plat.
(a) Excavation and removal of approximately 28,000 cubic yards of excess fill to
bring the site back to the base elevations utilized in the site grading plan.
(b) Construction of approximately 1,000 linear feet of sidewalk both in the public
right-of-way (820 linear feet) and internal to the project site.
(c) Installation of two handicap sidewalk ramps.
(d) Installation of up to 4 street lights in the public right-of-way and on Top of
Mill Street.
(e) ConstnJction of approximately 1,200 linear feet of new curb and gutter along
the west side of the South Mill Street as well as along Top of Mill Street.
(f) Construction of approximately 900 linear feet of 8 inch diameter ductile iron
water main extension including two fire hydrants and related gate valyes and fittings.
(g) Construction of approximately 480 linear feet of 8 inch diameter PVC sewer
main extension including 6 sewer manholes and appurtenances.
(h) Installation of approximately 650 linear feet of electric primary, gas, phone
and cable TV lines.
(i) Installation of site drainage improyements including 620 linear feet of storm
drain, 6 inlet structures and 3 manholes to handle storm runoff from new impervious areas.
OJ Placement of 4,500 square yards of asphalt or concrete paving.
(k) Construction of approximately 500 linear feet of 4-foot wide gravel path
within Top of Mill Trail Easement.
(I) Construction of approximately 590 linear feet of 4-foot wide gravel path
within Aspen Mountain Trail Easement
2.4 Cost of Subdivision Improvements. The current estimated cost of the subdivision
improyements described in Section 2.3 above, as more specifically set forth in the Engineer's
Estimate of Cost prepared by Schmueser Gordon Meyer, Inc. dated May 31,2002, a copy of which is
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attached hereto as Exhibit "C" and made a part hereofby this reference, and as approved by the City
Engineer, is $746,925.00. TOMI shall complete construction of the aforesaid subdivision
improvements in accordance with a Construction Schedule to be submitted to the City Engineering
Department simultaneously with submission of the financial guarantee described in Section 2.6
hereof.
2.5 Landscape Plan and Related Costs. TOMI shall install all landscaping on Parcels
I, 2, 3 and Open Space Parcel A depicted on the approved Landscape Plan, which is to be recorded
contemporaneously with the Final Plat and this Agreement. Landscaping for Parcels 4-8 shall be the
responsibility of the respective owners of those Parcels. TOMI shall ensure the success of all
landscaping installed by TOMI pursuant to the Landscape Plan for a period of two (2) years from the
date of installation. TOMI shall replace any landscaping instaIled by TOMI that fails during such
two (2) year period except where damage or destruction of such landscaping is caused by individual
property owners. Afi!::r instaIlation and initial grow-in of such landscaping, the Master Association
shall have the responsibility to irrigate, mow, trim, and otherwise maintain the landscaping within
Open Space Parcel A, the homeowners association for the townhouses on Parcell shall have the
responsibility to irrigate, mow, trim, and otherwise maintain the landscaping within Parcell, and the
homeowners association for the affordable housing units on Parcel 2 shall haye the responsibility to
irrigate, mow, trim, and otherwise maintain the landscaping within Parcel 2. The owners of the
duplex units on Parcel 3 shall have the responsibility to irrigate, mow, trim, and otherwise maintain
the landscaping within Parcel 3. The current estimated cost of implementing the Landscape Plan and
for assuring the success of said landscaping for a period of two (2) years after installation, as more
specifically set forth in the schedule prepared by DHM Design Corporation dated May 15, 2002,
attached hereto as Exhibit "D" and made a part hereofby this reference, and as approved by the City
Engineer, is $82,182.00.00 for Parcell; $47,600.00 for Parcel 2; $ 31,023.00 for Parcel 3; and
$55,887.00 for Open Space Parcel A.
2.6 Financial Assurances.
(a) In order to ensure construction and installation of the subdivision improyements
described in Section 2.3 above, and to guarantee 100 percent of the current estimated cost of the
subdivision improyements, TOMI shall provide to the City an irrevocable letter of credit from a
financially responsible lender in the amount of$746,925.00 (the "Subdivision Improvements Letter
of Credit''). The Subdiyision Improyements Letter of Credit shall be provided to the City prior to
the issuance of a building pennit for the construction of the first residential structure on Top of Mill.
(b) In order to ensure construction and installation of the landscaping improvements
described in Section 2.5 aboye, and to guarantee 125 percent of the current estimated cost of the
landscaping improvements (including 2 years of maintenance thereof), TOMI shall provide to the
City irrevocable letters of credit from a financially responsible lender in the amount oiS1 02,727.50
(i.e., 125% of$82,182.00) for the landscaping improvements on Parcel I ; $59,500.00 (i.e., 125% of
$47,600.00) for the landscaping improyements on Parcel 2; $38,778.75 (i.e" 125% 0($31,023.00)
for the landscaping improyements on Parcel 3; and $69,858.75 (i.e., 125% of$55,887.00) for the
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landscaping improyements on Open Space Parcel A; (each, a "Landscaping Letter of Credit", and
collectiyely, the "Landscaping Letters of Credit''). The Landscaping Letter of Credit for Parcel I shall
be provided to the City at the time .of building permit application for Parcel I. The Landscaping
Letter of Credit for Parcel2shall be provided to the City at the time of building permit application for
Parcel 2. The Landscaping Letter of Credit for Parcel 3 shall be provided to the City at the time of
building permit application for Parcel 3. The Landscaping Letter of Credit for Open Space Parcel A
shall be proyided to the City with the flIst Landscaping Letter of Credit for Parcels I, 2 or 3 (e.g., if
TOM! applies for a building permit for Parcel I before Parcels 2 or 3, then the Landscaping Letters
of Credit for Parcels I and Open Space Parcel A shall be provided at the time of building permit
application for Parcell).
(c) The Landscaping Letters of Credit and the Subdivision Improyements Letter of Credit
(together, the "Letters of Credit") shall be in a form reasonably acceptable to the City Attorney and
the City Manager, and give the City the unconditional right, upon default by TOM! to draw on funds
as necessary and upon demand to partially or fully complete andlor pay for any of such
improvements or pay any outstanding and delinquent bills for work done thereon by any party, with
any excess letter of credit amounts to be applied first to additional administratiye or legal costs
associated with any such default and the repair of any deterioration in improvements already
constructed before the unused remainder, if any, of such Letter of Credit is released to TOM!.
Provided, however, that TOM! shall be given fourteen (14) days written notice of default (and the
right to cure during said period) prior to the City's ability to make a draw under any Letter of Credit.
Notwithstanding the foregoing, delays or other problems resulting from ilcts of God or other events
beyond the reasonable control of TOM! shall not constitute a default hereunder so long as a good
faith effort is being made to remedy the problem and the problem is in fact resolved within a
reasonable period of time following its occurrence. As portions of the improvements required are
completed, the City Engineer shall inspect the subdivision improvements and the City Parks
Department shall inspect the landscaping improvements, and upon approval and written acceptance,
a reduction in the outstanding amount of the applicable Letter of Credit shall be authorized in an
amount equal to the agreed estimated cost for the completed portion of the improvements; provided,
however, that ten percent (10%) of the estimated cost shall be withheld until all proposed
improvements are completed and approved by the City Engineer or City Parks Department, as the
case may be, and with respect to landscaping improvements, an additional twenty-five percent (25%)
of the estimated cost thereof shall be retained until the landscaping improvements haye been
maintained in a satisfactory condition for two (2) years.
(d) It is the express understanding of the parties that compliance with the procedure set
forth in Section 2.7 below pertaining to the procedure for default and amendment of this Agreement
shall not be required with respect to the enforcement and implementation of these financial
assurances and guarantees to be provided by TOMI as set forth above.
2.7 Noncompliance and Request for Amendments or Extensions by TOM!. In the
eyent that the City Council determines that TOM! is not acting in substantial compliance with the
terms of this Agreement, the City Council shall notify TOM! in writing specifying the alleged non.
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compliance and asking that TOM! 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
TOM! has not complied within such time, the City Council may issue and serve upon TOM! a
written order specitying the alleged non-compliance and requiring TOM! to remedy the same within
thirty (30) days thereafter. Within twenty (20) days of the receipt of such order, TOM! 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 anyone or both of the following matters:
(a) Whether the alleged non-compliance exists or did exist, or
(b) Whether a yariance, extension of time or amendment to this 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 normaIly 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 noncompliance has been remedied, the withholding
of permits and/or certificates of occupancy, as applicable; provided, howeyer, no order shall
terminate any land use approval. The City Council may also grant such variances, extensions of time
or amendments to this 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 ifTOMI 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 eyents beyond the reasonable control of TOM!, despite good faith efforts on its part to
perform in a timely manner.
2.8 Top ofMiII Construction Schedule. Development of Top of Mill shall comply with
the most recent municipal engineering practice standards and the "Best Management Practices"
(BMPs) identified for water quality control requirements. The deyelopment shall occur in accordance
with the time frames set forth below, which are contained in Aspen City Council Ordinance No. IS,
Series of 2002 ("Ordinance No. 15-02"):
(a) TOMI may submit building permit applications for construction of infrastructure and
remoyal of fill any time after approval of Ordinance 7, but such applications shall be submitted no
later than thirty (30) days after recordation of this Agreement and the Final Plat.
(b) TOM! may submit building permit applications for the improvements to be
constructed on Parcels I and 2 any time after recordation of this Agreement and the Final Plat.
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(c) rOMI may submit building permit applications for the improyements to be
constructed on Parcels 3,4,5,6,7 and 8 any time after approval of Ordinance 7, but not before a
building permit is issued to Bavarian Affordable Housing, LLC for "Phase r' of the Bavarian Inn
Affordable Housing Project
(d) No certificate of occupancy for any townhome unit to be constructed on Parcell shall
be issued until a certificate of occupancy has been issued for the affordable housing units to be
constructed on Parcel 2.
(e) The certificate of occupancy for the free-market improvements to be constructed on
any of Parcels 3,4,5, 6, 7 and 8 shall not be issued until a certificate of occupancy has been issued
for the on-site accessory dwelling unit on any such Parcel or the owner of such Parcel has paid the
applicable affordable housing impact fee. .
To the extent of any conflict between the terms of this Agreement and the provisions of
Ordinance No. 15-02, this Agreement shall govern and control.
ARTICLE 3
GENERAL PROVISIONS
3.1 The provisions hereof shall be binding upon and inure to the benefit of rOM! and
. City and each of their respectiye successors and assigns.
3.2 This Agreement shall be subject to and construed in accordance with the laws of the
State of Colorado.
3.3 If any of the proyisions of this Agreement or any paragraph, sentence, clause, phrase,
word, or section or the application thereof in any circumstance is invalidated, such inYalidity shall
not affect the validity of the remainder of this Agreement, and the application of any such provision,
paragraph, sentence, clause, phrase, word, or section in any other circumstance shall not be affected
thereby.
3.4 This Agreement and the Exhibits attached hereto contains the entire understanding
between the parties hereto with respect to the transactions contemplated hereunder. TOM!, its
successors or assigns may, on its own initiatiye, petition the City Council for an amendment to this
Agreement or 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 (it being understood that after rOMI conveys Parcel 9 as described in Section 2.1 (a)
above, Parcel 9 shall not, except as proyided in Paragraphs 2.1 (b )(ii) and (iii) and 2.2(hh) above, be
coyered by, or subject to this Agreement; and, excepting only said Paragraphs 2.1 (b)(ii) and (iii) and
2.2(hh), this Agreement may be amended without the consent of the owner of Parcel 9). The
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provisions of this Agreement shall supersede and replace Section M of the First Amended pun
Agreement as it relates to Top of Mill.
3.5 Numerical and title headings contained in this 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 shaH
include all genders.
3.6 Upon execution of this Agreement by all parties hereto, City agrees to approye and
execute this Agreement and the Final Plat, and cause the same to be promptly recorded in the office
of the Clerk and Recorder for Pitkin County, Colorado, upon payment of the recordation fee by
TOM!.
3.7 Notices to be given to the parties to this Agreement shall be considered to be giyen 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
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TOMI:
Top of Mill Inyestors, LLC
clo Four Peaks Development, LLC
1000 S. Mill Street
Aspen, CO 81611
With copy to: Ronald Garfield, Esq.
Garfield & Hecht, P.C.
601 E. Hyman Ayenue
Aspen, CO 81611
3.8 The terms, conditions, provisions and obligations herein contained shall be deemed
covenants that run with and burden the real property more particularly described herein and any and
all owners hereof, their successors, grantees or assigns, and further shall inure to the benefit of and
be specifically enforceable by or against the parties hereto, their successors, grantees and assigns.
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IN WI1NESS 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 munici 0 oration
ATIEST:
~)~
thryn . Ko ity Clerk"'"
APPROVED AS TO FORM:
'l4l'?~~
JoIfirW~ster, ity Attorney
TOMI:
TOP OF MILL INVESTORS, LLC,
']~md~L
By: (ILJ (
David ar er, Director
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STATE OF COLORADO )
) ss
COUNTY OF PITKlN )
~The aboye and foregoing documynt was acknowledged before me this I (o1Ut day of
U/.vl-' ,2002, by 1-+e.1~ (::atlVl ~.:1-v-c.uf as Mayor and
Kathryn . Koch as CIty Clerk of the CIty of Aspen, Colorado, a Colorado mumClpa1 corporation.
Witness my hand and official
My commission expires:
L4.v
STATEOF ~1.oU)>O )
l)............, ) ss
COUNTYOF~ )
The aboye and foregoing document was acknowledged before me this Sd1 day of August
2002, by David Parker as Director for Top of Mill Inyestors, LLC, a Delaware limited liability
company.
Witness my hand and official
My commission expires:
38181-16
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EXHIBIT "A-I"
CITY OF ASPEN
TOP OF MILL TRAIL EASEMENT
THIS EASEMENT is made on ,2002 and is granted by Top of Mill Investors,
LLC, a Delaware limited liability company, hereinafter referred to as "Grantor," to the City of
Aspen, Colorado, a Municipal corporation, hereinafter referred to as "the City."
For good and valuable considerations, the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree as follows:
I. Easement, Grantor hereby grants to the City a non-exclusive ten foot (I 0') foot wide
easement, hereinafter referred to as the "Top of Mill Trail Easement" or the "Easement" over and
across the real property located in Pitkin County, Colorado, more particularly described on Exhibit
.. A" attached hereto and incorporated herein, for use by members of the public solely for pedestrian
purposes. The easement granted herein shall also include the right, on the part of the public to cross
Top of Mill Street as shown on the Final Plat of Top of Mill SubdivisionIPUD recorded
, 2002 in Book _ at Page _ as Reception No. (the "Final Plat") in
order to utilize the Easement. The City shall be permitted to make improyements to the Easement
only to the extent required for drainage, safety and maintenance of the trail. No other improvements
by the City (e.g., lighting, etc.) shall be permitted.
While the Easement runs through lands owned by Grantor, access to the Easement may only
be obtained by first crossing other lands not owned by Grantor. Obtaining access to the Easement
shall be the responsibility of the City. Except as specifically provided herein, no other lands of
Grantor may be used to access the Easement and nothing herein shall be construed as a grant, express
or implied, over lands of Grantor not described in Exhibit "A" for access to the Easement. Grantor
reserves the right to use and enjoy the Easement and the land beneath and the airspace above for all
purposes and uses which do not unreasonably interfere with the use and enjoyment by the City or
members of the public of the rights herein granted. Without limitation to the foregoing, Grantor shall
have the right to grant any easements to utility companies over or under the Easement.
The City agrees to maintain the Easement at its sole expense; provided, however, that the
City shall have the right to assign its maintenance responsibilities to whatever person or entity the
City deems is desirable for the effective utilization and maintenance of the Easement granted herein.
If the City fails to maintain the Easement within a reasonable period after notice from Grantor that
the City has failed to do so, Grantor shall have the right, but not the obligation, to maintain the
Easement and the City shall reimburse Grantor for any out-of-pocket costs incurred by Grantor.
The Easement is granted subject to all existing easements, restrictions and covenants of
record.
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Notwithstanding anything to the contrary herein, the City recognizes that Grantor will be
engaged in construction in connection with its proposed deYelopment of the Top of Mill
SubdivisionIPUD and that use of the Easement during construction is potentially dangerous and
likely to be disruptive to Grantor. Therefore, neither the City nor any member of the public shall
have the right to use the Easement until a certificate of occupancy has been issued for the townhomes
to be constructed by Grantor on Parcel I, Top of Mill SubdivisionIPUD. In addition, after a
certificate of occupancy has been issued for the townhomes to be constructed by Grantor on Parcell,
Top of Mill SubdivisionlPUD, Grantor shall have the right to temporarily close the Easement from
time-to-time when Grantor reasonably determines that use of the Easement will potentially conflict
with Grantor's construction actiyities.
Upon recordation of this Easement Agreement, the portion of the Top of Mill Trail Easement
depicted on the Final Plat located between the western boundary of Parcels I and 8, Top of Mill
SubdiyisionIPUD and the western boundary of Open Space Parcel B, Top of Mill SubdivisionIPUD
shall automatically be vacated and replaced by the portion of the Top of Mill Trail Easement
described in this Easement Agreement in that area.
2. Easement Utilization. This Easement is solely for use by the public for pedestrian
purposes. No hunting, horses or pedal bikes, such as mountain bikes shall be permitted on the
Easement. The use of motor yehicles is also prohibited, except to the extent necessary from time to
time for the construction and maintenance of the trail or for emergency vehicles when necessary.
The grant of the easement, as described herein, shall be strictly construed.
3. Trail Construction. Subject to seasonal conditions, Grantor shall improve the
Easement as it lies within Top of Mill by constructing a four-foot (4') wide single track path with
underlying matting and a crusher-fine surface. If, at the time this Easement Agreement is recorded,
Grantor has not yet completed such improyements, Grantor shall deposit into escrow with the City
sufficient funds, in an amount determined by the City, to pay of the cost of completing said
improyements. If said improvements have not been completed by [Insert date
that is five (5) years after the date that the Top of Mill SubdivisionlPUD Agreement is recorded],
whether due to the fact that publicly dedicated trails through adjoining lands have not been connected
up with the easterly and westerly ends of the Easement or otherwise, the funds deposited into escrow
by Grantor for this purpose shall be released to the City and Grantor shall thereafter be relieved of
any further obligation to improye the Easement
4. Maintenance. Hold harmless and Insurance. The parties expressly acknowledge
that the Easement is granted for a "recreational purpose" under, and Grantor is entitled to the
benefits, protection and limitations on liability afforded by Colorado law governing recreational
easements, including, but not limited to, Colorado Revised Statute ~ 33-41-101, et seo., as amended.
By granting the Easement, Grantor shall have no obligation to repair, clear or otherwise maintain the
area within the Easement, or to insure or indemnity the City or any member of the public for any
injury, claim or damage to any person or property, whether alleged to have occurred as a result of use
of the Easement or due to the condition of the trail.
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By accepting the Easement granted herein, the City agrees, to the extent permitted by law, to
defend and hold Grantor and its successors and assigns harmless, subject to the procedural
requirements and monetary limits of the Colorado Governmental Immunity Act, Colorado Reyised
Statutes 9 24-10-101, et seq., as amended, for any injury, claim or damage to any person or property
as a result of use of the Easement or due to the condition of the trail.
5. Ril!bt to Relocate. Grantor retains the right to relocate the Easement and/or the trail
located therein, with the obligation to reconstruct any improvements thereon, at its sole expense and
with the prior written approval of the City as to relocation, procedure and method of reconstruction
of the public trail, which approval by the City shall not be unreasonably withheld as long as the
proposed relocation and reconstruction serve the purposes of the City, as expressed herein, to the
same extent as this Easement, and so long as the improvements so constructed also serve said
purposes.
6. Amendment. This Easement and the rights and obligations granted and assumed
herein may not be modified except by a writing signed by Grantor and City, or their respective
successors and assigns, as applicable.
7. Notices. Any notices given pursuant to the terms of this Easement shall be giyen by
mailing the same, certified mail, return receipt requested, properly addressed and with postage fully
prepaid, to the addresses provided below or to subsequent assigns, as applicable, as long as prior
written notice of the change of address has been given to the other parties listed below. Said notices
shall be sent to the parties hereto at the following address unless otherwise notified in writing:
Grantor:
Top of Mill Investors, LLC
1000 S. Mill Street
Aspen, Colorado 8161 I
Attn: Scott Writer
With a copy to:
Ronald Garfield, Esq.
Garfield & Hecht, P.C.
601 E. Hyman AYenue
Aspen, Colorado 81611
City:
City of Aspen
130 S. Galena Street
Aspen, Colorado 81611
Attn: City Manager
8. ~. Grantor and City agree that his Easement is made in accordance with the laws
of the State of Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of
Pitkin County, Colorado.
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9. Enforcement. Each of Grantor and the City shall haye the right and power to bring
suit in its own name for any legal or equitable relief due to lack of compliance with any provisions of
this Easement. The failure of a party to insist upon the performance of any provisions or to exercise
any right or option available to it, or to serve any notice or to institute any action, shall not be a
waiver or a relinquishment for the future, of any such provision. If any court proceedings are
instituted in connection with the rights of enforcement and remedies provided in this easement, the
prevailing party shall be entitled to reimbursement of its costs and expenses, including reasonable
attorneys' fees, in connection therewith.
10. Desil!Dation of Successor. Grantor, by instrument duly recorded in the real estate
records of Pitkin County, Colorado, may designate a party to succeed to all the rights, privileges and
remedies of Grantor hereunder.
11. Ism!. The term of this easement shall be permanent and perpetual, so long as the
City shall comply with the terms, provisions and conditions set forth herein.
12. Successors and Assil!Ds. All the provisions of this easement, including the benefits
and burdens created thereby, shall run with the land and be binding upon all persons who hereafter
acquire any interest in the property described in Exhibit "A", whether as an owner, renter, trust deed
or mortgage beneficiary, or otherwise. All provisions of this Easement inure to the benefit of and be
binding upon the parties hereto, their heirs, successors, assigns and personal representatives.
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GRANTOR:
TOP OF MILL INVESTORS, LLC
a Delaware limited liability company
By:
Print Name:
Title:
CITY:
CITY OF ASPEN,
a Colorado Municipal corporation
By:
Print Name:
Title:
AITEST:
Kathryn S. Koch, City Clerk
APPROVED AS TO FORM:
John Worcester, City Attorney
I ~111U111\ II ~m I~ gl ~ ~~ ~~~:~~r '~;Z7P
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STATE OF COLORADO )
) ss.
COUNTY OF PITKIN )
The foregoing Easement was acknowledged before me this _ day of .2002
by ,as of Top of Mill Investors, LLC, a
Delaware limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
STATE OF COLORADO )
) 88.
COUNTY OF PITKIN )
The foregoing Easement was acknowledged before me this _ day of .2002
by . as of the City of Aspen, a Colorado
Municipal cOIJloration.
Witness my hand and official seal.
My commission expires:
Notary Public
~lnlll~UIIII~III~lllnll ~;~1/~~'~~27P
SILVIA DAVIS PITKIN CDUNn co R 235." D....
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EXHIBIT "A" TO EXHIBIT "A-I"
(Lel!al Descrintion of Too of Mill Trail Easement)
Top of Mill Trail Easement, according to the Final Plat ofTop of Mill SubdiyisionlPUD. a
planned community recorded . 2002 in Book _ at Page_as Reception No.
COUNTY OF PITKIN,
STATE OF COLORADO.
I I~ "'~I\II\ ~I~I ~U\~"I' II ~!.~;~~~l:e~~z~
SILVIA DAVIS PI1KIN COUNTY co R
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EXHIBIT" A-2"
CITY OF ASPEN
ASPEN MOUNTAIN TRAIL EASEMENT
TIllS EASEMENT is made on , 2002 and is granted by Top of Mill Investors,
LLC, a Delaware limited liability company, hereinafter referred to as "Grantor," to the City of
Aspen, Colorado, a Municipal corporation, hereinafter referred to as the "City."
For good and valuable considerations, the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree as follows:
I. Easement. Grantor hereby grants to the City a non-exclusive thirty foot (30') wide
easement, hereinafter referred to as the "Aspen Mountain Trail Easement" or "Easement" over and
across the real property located in Pitkin County, Colorado, more particularly described on Exhibit
"A" attached hereto and incorporated herein, for use by members of the public strictly as a trail for
pedestrian and skiing purposes. The City shall be permitted to make improvements to the Easement
only to the extent required for drainage, safety and maintenance of the trail. No other improvements
by the City (e.g., lighting, etc.) shall be permitted.
While the Easement runs through lands owned by Grantor, access to the Easement may only
be obtained by first crossing other lands not owned by Grantor. Obtaining access to the Easement
shall be the responsibility of the City. No other lands of Grantor may be used to access the Easement
and nothing herein shall be construed as a grant, express or implied, over lands of Grantor not
described in Exhibit "A" for access to the Easement. Grantor reserves the right to use and enjoy the
Easement and the land beneath and the airspace above for all pWJ>Oses and uses which do not
unreasonably interfere with the use and enjoyment by the City or members of the public of the rights
herein granted. Without limitation to the foregoing, Grantor shall have the right to grant any
easements to utility companies over or under the Easement.
The Easement is granted subject to all existing easements, restrictions and covenants of
record.
The City agrees to maintain the Easement at its sole expense; provided, however, that the
City shall have the right to assign its maintenance responsibilities to whatever person or entity the
City deems is desirable for the effective utilization and maintenance of the Easement granted herein.
If the City fails to maintain the Easement within a reasonable period after notice from Grantor that
the City has failed to do 50, Grantor shall have the right, but not the obligation, to maintain the
Easement and the City shall reimburse Grantor for any out-of-pocket costs incurred by Grantor.
38181-16
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111111111I11 ~ 11I11111111I1 ~II :~~l/1:0~( 0~~27F
SILVIR ORVIS PIT1(IN COUNTy CO R 23S. 00 D 0. ee
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Notwithstanding anything to the contrary herein, the City recognizes that Grantor will be
engaged in construction in connection with its proposed deyelopment of the Top of Mill
Subdivision/PUD and that use of the Easement during construction is potentially dangerous and
likely to be disruptive to Grantor. Therefore, neither the City nor any member of the public shall
have the right to use the Easement until a certificate of occupancy has been issued for the townhomes
to be constructed by Grantor on Parcel I, Top of Mill Subdivision/PUD. In addition, after a
certificate of occupancy has been issued for the townhomes to be constructed by Grantor on Parcell,
Top of Mill Subdivision/PUD, Grantor shall have the right to temporarily close the Easement from
time-to-time when Grantor reasonably determines that use of the Easement will potentially conflict
with Grantor's construction activities.
2. Easement Utilization. This Easement is solely for use as a trail for pedestrian and
skiing purposes by the public, which for purposes of this Easement includes the right to use horses
and pedal bikes, such as mountain bikes. No hunting shall be permitted on the Easement. The use of
motor yehicles is also prohibited, except to the extent necessary from time to time for the
construction and maintenance of the trail or for emergency vehicles when necessary. The grant of
the easement, as described herein, shall be strictly construed.
3. Trail Construction. Subject to seasonal conditions, Grantor shall improve said
Easement by constructing a four-foot (4') wide single track path with underlying matting and a
crusher- fme surface, installation of trail signs at the ends of the trail identifying the trail name and
public access, which signs shall be designed and built in accordance with City of Aspen Parks
Department standards.
4. Maintenance. Hold harmless and Insurance. The parties expressly acknowledge
that the Easement is granted for a "recreational purpose" under, and Grantor is entitled to the
benefits, protection and limitations on liability afforded by Colorado law governing recreational
easements, including, but not limited to, Colorado Revised Statute ~ 33-41-101, ~., as amended.
By granting the Easement, Grantor shall have no obligation to repair, clear or otherwise maintain the
area within the Easement, or to insure or indemnify the City or any member of the public for any
injury, claim or damage to any person or property, whether alleged to have occurred as a result of use
of the Easement or due to the condition of the trail.
By accepting the Easement granted herein, the City agrees, to the extent permitted by law, to
defend and hold Grantor and its successors and assigns harmless, subject to the procedural
requirements and monetary limits of the Colorado Governmental Immunity Act, Colorado Revised
Statutes S 24-10-101, et sea., as amended, for any injury, claim or damage to any person or property
as a result of use of the Easement or due to the condition of the trail.
5. Ril!ht to Relocate. Grantor retains the right to relocate the Easement and! or the trail
located therein, with the obligation to reconstruct any improvements thereon, at its sole expense and
with the prior written approval of the City as to relocation, procedure and method of reconstruction
of the public trail, which approval by the City shall not be unreasonably withheld as long as the
38181-16 31
1111111I11111111111111 ~~~l~!,~f 1~~27F
SILVIA DAVIS PITKIN COUNTY CD R 235.10 D e.10
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EXECUTION COPY
proposed relocation and reconstruction serve the purposes of the City, as expressed herein, to the
same extend as this Easement, and so long as the improvements so constructed also serve said
purposes.
6. Vacation of Prior Asoen Mountain Trail Easements. Reference is made to the
Final Plat for the Top of Mill SubdivisionIPUD recorded , 2002 in Book _ at Page
_ as Reception No. (the "Final Plat"). The Final Plat (i) vacates the Aspen Mountain
Trail as shown on the First Amended Plat Aspen Mountain Subdivision and Planned Unit
Development, according to the Plat thereof filed October 3,1988 in Plat Book 21 at Page 35 (the
"First Amended Plat") and (ii) depicts the general vicinity of a new Aspen Mountain Trail Easement
that will be located, aligned and dedicated by this Easement Agreement. Upon recordation of this
Easement Agreement, the Aspen Mountain Trail Easement depicted on the Final Plat shall
automatically be vacated and replaced by the Easement described and dedicated in this Easement
Agreement.
7. Amendment. This Easement and the rights and obligations granted and assumed
herein may not be modified except by a writing signed by Grantor and City, or their respective
successors and assigns, as applicable.
8. Notices. Any notices given pursuant to the terms of this Easement shall be given by
mailing the same, certified mail, return receipt requested, properly addressed and with postage fully
prepaid, to the addresses provided below or to subsequent assigns, as applicable, as long as prior
written notice of the change of address has been given to the other parties listed below.
Said notices shall be sent to the parties hereto at the following address unless otherwise
notified in writing:
Grantor:
Top of Mill Investors, LLC
1000 S. Mill Street
Aspen, Colorado 8161 I
Attn: Scott Writer
With a copy to:
Ronald Garfield, Esq.
Garfield & Hecht, P.C.
601 E. Hyman Avenue
Aspen, Colorado 81611
City:
City of Aspen
130 S. Galena Street
Aspen, Colorado 81611
Attn: City Manager
38181-16
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EXECUTION COPY
9. YmY!. Grantor and City agree that his Easement is made in accordance with the laws
of the State of Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of
Pitkin County, Colorado.
10. Enforcement. Each of Grantor and the City shall have the right and power to bring
suit in its own name for any legal or equitable relief due to lack of compliance with any proyisions of
this Easement. The failure of a party to insist upon the performance of any proyisions or to exercise
any right or option available to it, or to serve any notice or to institute any action, shall not be a
waiver or a relinquishment for the future, of any such provision. If any court proceedings are
instituted in connection with the rights of enforcement and remedies provided in this easement, the
preyailing party shall be entitled to reimbursement of its costs and expenses, including reasonable
attorneys' fees, in connection therewith.
11. Desil!Dation of Successor. Grantor, by insmunent duly recorded in the real estate
records of Pitkin County, Colorado, may designate a party to succeed to all the rights, privileges and
remedies of Grantor hereunder.
12. Term. The term of this easement shall be permanent and perpetual, so long as the
City shall comply with the terms, provisions and conditions set forth herein.
13. Successors and Assil!Ds. All the provisions of this easement, including the benefits
and burdens created thereby, shall run with the land and be binding upon all persons who hereafter
acquire any interest in the property described in Exhibit <<A", whether as an owner, renter, trust deed
or mortgage beneficiary, or otherwise. All provisions of this Easement inure to the benefit of and be
binding upon the parties hereto, their heirs, successors, assigns and personal representatiyes.
1111 mlll~11 ~IIIIIII ~1II11111111111~1 =~~l~.~f I:~ 27F
SILVIA DlWIS PITKIN COUNT' CO R 23'." D....
38181-16
33
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EXECUTION COpy
GRANTOR:
TOP OF MILL INVESTORS, LLC
a Delaware liinited liability company
By:
Print Name:
Title:
CITY:
CITY OF ASPEN,
a Colorado Municipal corporation
By:
Print Name:
Title:
ATTEST:
Kathryn S. Koch, City Clerk
APPROVED AS TO FORM:
. q{(/7~L-~
Jd8n-W~ester. Ity Attorney
III~ I~ 11m ~II ~I~ I~ ~ ~II ~IIIII ::~l~:e~r e~;27F
SILVIA DAVIS PITKIN COUNTY CO R us.ee De..
38181-16
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EXECUTION COPY
STATE OF COLORADO )
) ss.
COUNTY OF PITKIN )
The foregoing Easement was acknowledged before me this _ day of ,2002
by , as of Aspen Mountain Inyestors, u..C, a
Delaware limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
STATEOFCOLORADO )
) ss.
COUNTY OF PITKIN )
The foregoing Easement was acknowledged before me this _ day of .2002
by , as of the City of Aspen. a Colorado
Municipal corporation.
Witness my hand and official seal.
My commission expires:
Notary Public
\IIIIII"I"~~~:"
SICVI. IlOVIS PI'IltIN CO\JNTV
38181-16
35
o
EXECUTION COpy
EXHIBIT "A" TO E
lAttach Le I XHIBIT "A-2"
l!a DescriDti'
on of As
Den Mount'
am Trail E
asementl
COUNTY
STAlE OF PITKIN
OF COLORADO.
11111111"" :;,~~;!. :.~..
.1L.~lA I)llIIl$ Plt1<lM coUN'ly co R %35." 0 ....
3818[-16
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EXECUTION COpy
EXHIBIT "8"
OTY OF ASPEN
STORM DRAIN PIPE EASEMENT
THIS EASEMENT is made on . 2002 and is granted by Top of Mill Investors,
LLC, a Delaware limited liability company, hereinafter referred to as "Grantor," to the City of
Aspen, Colorado, a Municipal corporation, hereinafter referred to as ''the City."
For good and valuable considerations, the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree as follows:
I. Easement. Grantor hereby grants to the City a non-exclusive twenty foot (20') foot
wide utility easement, hereinafter referred to as the "Easement" oyer and across the real property
located in Pitkin County, Colorado, more particularly described on Exhibit "An attached hereto and
incorporated herein, for use by the City solely for installation, maintenance and repair of a storm
drain pipe.
While the Easement runs through lands owned by Grantor, access to the Easement may only
be obtained by first crossing other lands not owned by Grantor. Obtaining access to the Easement
shall be the responsibility of the City. Except as specifically provided herein, no other lands of
Grantor may be used to access the Easement and nothing herein shall be construed as a grant, express
or implied, over lands of Grantor not described in Exhibit" A" for access to the Easement. Grantor
reserves the right to use and enjoy the Easement and the land beneath and the airspace above for all
purposes and uses which do not unreasonably interfere with the use and enjoyment by the City or
members of the public of the rights herein granted. Without limitation to the foregoing, Grantor shall
have the right to grant any easements to utility companies over or under the Easement.
In the event that the City damages any landscaping or other improvements located in the
Easement in connection with the rights granted hereunder, the City shall promptly repair any such
damage and restore the land within the Easement to its prior condition.
The Easement is granted subject to all existing easements, restrictions and covenants of
record.
2. Easement Utilization. This Easement is solely for use by the City for installation,
maintenance and repair of a storm drain pipe. The grant of the easement, as described herein, shall
be strictly construed.
3. Amendment. This Easement and the rights and obligations granted and assumed
herein may not be modified except by a writing signed by Grantor and City, or their respective
successors and assigns, as applicable.
38181-16
37
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R 235.00 D e.ee
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EXECUTION COpy
4. Notices. Any notices given pursuant to the tenns of this Easement shall be given by
mailing the same, certified mail, return receipt requested, properly addressed and with postage fully
prepaid, to the addresses provided below or to subsequent assigns, as applicable, as long as prior
written notice of the change of address has been given to the other parties listed below. Said notices
shall be sent to the parties hereto at the following address unless otherwise notified in writing:
Grantor:
Top of Mill Inyestors, LLC
1000 S. Galena Street
Aspen, Colorado 81611
Attn: Scott Writer
With a copy to:
Ronald Garfield, Esq.
Garfield & Hecht, P.C.
601 E. Hyman Avenue
Aspen, Colorado 81611
City:
City of Aspen
130 S. Galena Street
Aspen, Colorado 81611
Attn: City Manager
5. ~. Grantor and City agree that his Easement is made in accordance with the laws
of the State of Colorado and shall be so construed. Venue is agreed to be exclusiyely in the courts of
Pitkin County, Colorado.
6. Enforcement. Each of Grantor and the City shall haye the right and power to bring
suit in its own name for any legal or equitable relief due to lack of compliance with any provisions of
this Easement. The failure of a party to insist upon the performance of any provisions or to exercise
any right or option available to it, or to serve any notice or to institute any action, shall not be a
waiver or a relinquishment for the future, or' any such provision. If any court proceedings are
instituted in connection with the rights of enforcement and remedies provided in this easement, the
prevailing party shall be entitled to reimbursement of its costs and expenses, including reasonable
attorneys' fees, in connection therewith.
7. Desimation of Successor. Grantor, by instrument duly recorded in the real estate
records of Pitkin County, Colorado. may designate a party to succeed to all the rights, privileges and
remedies of Grantor hereunder.
8. Im:m. The term of this easement shall be permanent and perpetual, so long as the
City shall comply with the terms, provisions and conditions set forth herein.
9. Successors and Assil!ns. All the provisions of this easement, including the benefits
and burdens created thereby, shall run with the land and be binding upon all persons who hereafter
38181-16 38
Illll(lJII'&.?lJf-i:';~m
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EXECUTION COPY
acquire any interest in the property described in Exhibit "A", whether as an owner, renter, trust deed
or mortgage beneficiary, or otherwise. All provisions of this Easement inure to the benefit of and be
binding upon the parties hereto, their heirs, successors, assigns and personal representatives.
GRANTOR:
TOP OF MILL INVESTORS, LLC
a Delaware limited liability company
By:
Print Name:
Title:
CITY:
CITY OF ASPEN,
a Colorado Municipal corporation
By:
Print Name:
Title:
A TrEST;
Kathryn S. Koch, City Clerk
APPROVED AS TO FORM:
"7 ~
~:f'I/~/A -6----
JohIr~cstet, ity Attorney
\111\\ 471100
\ \\\i I~ Il\\ 1\ \8\' 1"\\\\\ III ~~B .:'~~~;~~te~~Z7P
SILVIA DAVIS PIT1<IN .
38181-16
39
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EXECUTION COPY
STATE OF COLORADO )
) ss.
COUNTY OF PITKIN )
The foregoing Easement was acknowledged before me this _ day of ,2002
by , as of Top ofMili Investors, LLC, a
Delaware limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
STATE OF COLORADO )
) ss.
COUNTY OF PITKIN )
The foregoing Easement was acknowledged before me this _ day of ,2002
by , as of the City of Aspen, a Colorado
Municipal corporation.
Witness my hand and official seal.
My commission expires:
Notary Public
1\ 471100
\1'JIJJ,'I'k?~F.-t.f"
38181-16
40
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EXECUTION COPY
Twenty foot (20') wide utility easement between Parcels 4 and 5 and over Open Space Parcel A,
according to the Final Plat of Top of Mill SubdivisionIPUD, a planned community recorded
.2002 in Book _ at Page_ as Reception No.
38181-16
".,,,'"
EXlllBIT "A" TO EXHIBIT "B"
(Lel!sl DescrintioD of Storm Drain Pine Easement)
COUNTY OF PITKIN,
STATE OF COLORADO.
IUIIIIIIIIIII"IIIIIII~IIIUI :;~1/:!e~fe:;27P
SILVIA DAVIS PITKIN COUNTY co R 23S." D e.ee
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EXHIBIT 'e'
EXHIBIT
TOP OF MILL
SUBDMSION I PUD
SCHEDULE OF PUBLIC IMPROVEMENTS
May 31,2002
INTRODUCTION
Below is an updated schedule of the public improvements for the Top of Mill project Including
estimated costs developed with the General Contractor for the project, Resort Builders. This
list is based on the site improvements anticipated in the Construction Management Plan for the
project but includes only right-of-way improvements and main utility extensions that benefit the
project and parcels as a whole. I have excluded utility service lines and improvements internal
to each parcel.
SITE IMPROVEMENTS
Common public Improvements to serve the overall Top of Mill Subdivision I PUD project site
are shown on drawings submitted as exhibits to the Final Plat titled GRADING & DRAINAGE
PLAN, ROAD PLAN & PROFILE and SCHEMATIC UTlUTY PLAN and include the following:
1. Excavation and removal of approximately 28,000 cubic yards of excess fiU to bring the
site back to the base elevations utilized in the site grading plan. Estimated cost:
$300,000.
2 Construction of approximately 1,000 linear feet of sidewalk both in the public right-of-
way (820 linear feet) and intemalto the project site. Estimated cost $23,000.
3. Installation of two handicap sidewalk ramps at the intersection of South Mill and Summit
Streets. Estimated cost $1,200.
4. Installation of up to 4 street lights in the public right-of-way and on the private access.
Estimated cost: $8,000.
5. Construction of approximately 1,200 linear feet of new curb and gutter along the west
side of South Mill Street and along the internal access road. Estimated cost $23,100.
6. Construction of approximately 900 linear feet of 8 inch diameter ductile iron water main
extension including two fire hydrants and related gate valves and fittings. Estimated
cost $89,700.
7. Construction of approximately 480 linear feet of 8 inch diameter PVC sewer main
extension inCluding 6 sewer manholes and appurtenances. Estimated cost $61,400.
l[l~llll(f~f~/r'l~J"jl'~ If I~'II'II"I ~;~ ll:~~f 0;~27F
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May 31, 2002
Top of Mill Subdivision I PUD
Schedule of Public Improvements
Page 2
8. Installation of approximately 650 linear feel of electric primary, gas, phone and cable
TV lines. $45,150.
9. Installation of site drainage improvements inclUding approximately 620 I.f. of storm
drain, 6 inlel structures and 3 manholes to handle storm runoff from new impervious
areas. Estimated cost $60,375.
10. Placement of 4,500 square yards of concrete paving. Estimated cost $118,000.
11. Construction of approximately 500 linear feet of 4 foot wide gravel "Top of Mill Trail" in a
15 foot easement. Construction of approximately 590 linear feet of 4 foot wide gravel
"Aspen Mountain Trail" in the 30 foot ski easement. Estimated cost: $17,000.
Total estimated cost of the public improvements for the Top of Mill project; $ 746,925.
JHljh 00140SlA4
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TOP OF Mill
landl""" QuanUtJ..
Prepared By; OHM Oasign Corporation
Parcell
Number
1
2
3
4
5
5
7
8
9
10
11
12
13
14
15
Item
Sod
Native Seed
Cedar Mulch
Edging
Irrigation
Shrub Bed Prep
5 gal Shrubs
1 gal. Perennial.
2.5" cal. Deciduous Trees
2.25" cal. Deciduous Trees
3" cat Deciduous Trees
3.5' cal. Deciduous Trees
10' Evergreen Trees
14' Evergreen Trees
17' Evergreen Trees
EXHIBIT '0'
.'.....,
"
Quantity
2.535
12.575
1,395
87
15,705
1,395
71
193
9
15
33
5
3
4
2
Unft
SF
SF
SF
LF
SF
SF
EA
EA
EA
EA
EA
EA
EA
EA
EA
Date: May 15, 2002
Unft Cost Total Cost
$1.00 $2,535
$1.00 $12,875
$0.80 $837
$2.50 $218
$1.00 $15,705
$1.70 $2,372
$45,00 $3,195
$14.00 $2,102
$550.00 $4,950
$400.00 $6.400
$500.00 $16,500
$600.00 $3,000
$500.00 $1,800
$1.200.00 $2,400
$1,700.00 $3,400
Subtotal
3% Mobilization Fee
Total
$79,788
$2,394
$82,182
Assumes thaI 12" oftopaoil has been provided & placecl by the Contractor
Cobble mulch a1 dripline has not been included
\ III"~ II ~'IIIII'!III~ I'I~I ~!.i:~~l:~~: ~;m
.1~VIA DAVIS PITKIN COUNT
TOP OF MILL
Landscape Quanlltl..
Prepared By: OHM Design Corporation
Parcel 2
Number
1
2
3
4
5
5
7
8
9
10
11
12
13
14
15
ltern
Sod
Nalive Seed
Cedar Mulch
Edging
Irrigation
Shrub Bed Prep
5 gal Shrubll
1 gal. Perennla's
2.5" cal. Deciduous Trees
2.25" cat Deciduous Trees
3" cal. Deciduous Trees
3.5" cal. Deciduous Trees
10' Evergreen Trees
14' Evergreen Trees
17' Evergreen Trees
Quantity
3,054
1,078
130
185
4,252
130
36
17
4
11
23
4
4
12
3
Un"
SF
SF
SF
LF
SF
SF
EA
EA
EA
EA
EA
EA
EA
EA
EA
~
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Dale: May 15, 2002
Un" Cost Total Cost
$1.00 $3,054
$1.00 $1,078
$0.60 $78
$2.50 $463
$1.00 $4,262
$1.70 $221
$45.00 $1,620
$14.00 $238
$550.00 $2,200
$400.00 $4,400
$500.00 $11,500
$600.00 $2,400
$600.00 $2,400
$1,200.00 $7,200
$1,700.00 $5,100
Sublotal
3% Mob"lzation Fee
Tata'
Assumes that 12" oftopscil has been provided & placed by the Contractor
Cobble mulch at driplins has not been included
$46,214
$1.3S6
$47,600
~, 471100f 47
\IIJIJJ,'11!::~;~."''''
SI~VI.
TOP OF MILL
Landscape Quantities
Prepared By: OHM Design Corporation
Pares' 3
Number
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
Item
Sod
Native Seed
Cedar Mulch
Edging
Irrigation
Shrub Bed Prsp
5 gal Shrubs
1 gal. Perennials
2.5" cal, Deciduous Trees
2.25" caf. Deciduous Trees
3" cal. Deciduous Trees
3.5" caL Deciduous Trees
10' Evergreen Trees
14' Evergreen Trees
17' Evergreen Trees
Quantity
785
4,780
775
170
6.340
775
31
58
4
9
9
o
2
1
1
Unit
SF
SF
SF
LF
SF
SF
EA
EA
EA
EA
EA
EA
EA
EA
EA
""'\
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Date: May 15. 2002
Unn Cost Total Cost
$1.00 $785
$1.00 $4,780
$0.80 $465
$2.50 $425
$1.00 $8,340
$1.70 $1,318
$45.00 $1,395
$14.00 $812
$550.00 $2,200
$400.00 $3,800
$500.00 $4,500
$800.00 $0
$800.00 $1,200
$1,200.00 $800
$1,700.00 $1,700
Subtotal
3% Mobilization Fee
Total
$30.120
$904
$31.023
Assumes that 12" ofiopsoD has been provided & placed by the Contractor
Cobble mulch at dripline has not been Included
1~~~A"J.'ll~I~IIIIlI'111l1 ~11I1l :;~l,;:'~f e:? 27P
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TOP OF MILL
Lancacape Quantities
Prepared By: DHM Design Corporation
Infraslnlclure Parcel
Number
1
2
3
4
5
6
7
8
g
10
11
12
13
14
15
Item
Sod
Native Seed
Ceder Mulch
Edging
Irrigation
Shrub Bed Prep
5 gal Shrubs
1 gal. PereMials
2.5" cal. Deciduous Trees
2.25" eal. Deciduous Trees
3" eal. Deciduous Trees
3.5" eal. Deciduous Trees
10' Eve'll....n Trees
14' Evergreen Trees
17' Eve'llreen Trees
Quantity
835
12,675
1,395
87
14,905
1,395
74
142
10
6
g
2
1
2
1
Unit
SF
SF
SF
LF
SF
SF
EA
EA
EA
EA
EA
EA
EA
EA
EA
......
~
Date: May 15, 2002
Unit Cost Total eost
$1.00 $835
$1.00 $12,675
$0.60 $837
$2.50 $218
$1.00 $14,!lO5
$1.70 $2,372
$45.00 $3,330
$14.00 $1,988
$550.00 $5,500
$400.00 $2,400
$500,00 $4,500
$600.00 $1,200
$600,00 $600
$1,200,00 $1,200
$1,700.00 $1,700
Sublctal
3% Mobilization Fee
Total
Assumes that 12" of topsoil has been provided & placed by the Contractor
Cobble mulch at drip6ne has not been ineluded
554,259
$1,628
$55,887
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Feb.22. 2005 11 :58AM HERBERT S. KLEIN, P.C.,
I CDolL, L0b I; IdAM ,.' "JIVlNIUIlI" uCHLvrlYlcNT
N0.7591 p, 3
IIV. V b'Lf r: j
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ATT ACHMENT2 -LAND USE APPLICATION
Al'I'LICANT: Parcel 4 Too of MU 1. LLC: JP Interests, LLC:' J.PRP River LLC and LPRP Mill, LLC
Name:
Looation:
(above)
Parcels 4, 7 & 8,-rop of Mill S~bdivision/PUD
(Indicate street adOress, lot & block number, legal descrilltion wIwe appropriate)
,ParcellD # (REQUlRED)
REPRFSENTAT1VE:
Name:
Addrc$s:
Phone #~
Jody Edwards
201 N. Mill St, Suite 203, Aspen ~O 81611
925-8700
PRoJEcr:
. Name:
Address:
Phone #:
TYPE OJ! APl'J.JCA.TION: (please check all that apply):
0 Conditional Use 0 Con~tual PUD 0 Conceptual Historic Devl
0 Special Review 0 Final PUD (& PUD Amendment) 0 Final Historic Dcvelopm~t
0 Design Review A.ppeal 0 C9ncep1nal SPA 0 Minor HistOric Devt.
0 GMQS Allotment 0 FinalSPA(& SPA Amendment) 0 Historie Demolition
0 GMQS Exemption 0 Subdi"li.sion 0 Historic Designation
0 ESA - 8040 Greenline, SUeam 0 - Subdivision Exemption (includes 0 Small Lodge Conversion!
Margin, Hallam Lake Blufi; condominil\mi7~tjon) Expansion
MOIIl1t.ain View Plane
0 Lot Split 0 TempomryUse @ Other: exemption from
0 Lot Line Adiustment 0 TextlMal) Amendment expiration of vested rights
. ExlsrJNG CONDmONS: (d 'tion of .. buildings, uses,
vacant land
exem tion from ex iration of v
d riht s
PlloPOSAL: descri 'on of proposed buildin s uses, modifications, el.e.
" ., .'----Hava'yo1t-:lI.nached,the-follo1tiDe? - FEES DliS~
B l'rc-Application Conference SumtIl8lY . RETAIN FOR PERMANENT Rt
Attachment #1, Signed Fee Agreement.
D Response to Attachment #3, Dimensional R.equircment'! Fonn
o Response to Atta(:bment #4, Submittal Requirements- Including Written Responses to Review S\a11dards
O.......:"...J T:_A [..I. 1')'1 (l,f'leAu
Feb,22. 2005011:58AM8AM HERBERT S, KLEIN, p.c-eNI
No.7 5 91 062 P. 2r. 2
r"
,'"
CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT
Al!reemeut for Pa'VlJlent of City of Aspen DevelonmeDt <!.nnllcauon F....
CITYOFASPEN(hen:inafterCITY)an~ Pore,,1 4 Top oj' Mill TTr. To TnTer".t. IIC; LPRP
River, LLC and LPRP Mill, LLC
(hereinafier APPliCANT) AGREE AS FOLLOWS,
L APPliCANT bas whlllitted to CITY an application Cor
exemption from expiration of vested ri~hts
(hereillafter, nrs PROJECT).
2. APPLICANT underslan<l. and ag1ees thm City of Aspen OEdDw1ce No. 57 (Smes of
2000) establishes a fee s1rUcture for Land Use applicatiOl1l and the payxnCllt of all processing fees is a
condition plecedont to a determination of applic.tion compl_s.
3. APPliCANT and CITY 'g1cc that because of the oizo, natttrc or scope of the proposed
project, it is DOt possible at this limO to ..cemln the 1\111 ClCtent of the <:otIS in,volved in processing the
applicatiOll- APPLICANT and CITY further agree that it is In the Intac.st of the partiCll that APPLICANT
Dlake payment of an initial. deposit aDd to thereafter pe:mUt additiona1 costs to be billed to APPLICANT on
a monthly basis. APPLICANT ag10cs additie:ral costs may aeaue followiDg their hearings and/or
approvals. APPliCANT agrees he will be benefited by rotaWiDg greater cash li'Juldity IlJld will make
additional payments upon notification by the CITY w1ien they are necessary lIS costa are iDcurred. CITY
agrees it will be benefited throu,gh the grealer oertainty of recovering ilS full eestll te proceSS
APPLICANT'S application. '
4. CITY and APPLICANT futther agree tba1 it Is ImpraotiQble for CITY staff to complete
proceuing or present sufficient inforiDation to the Planning Collllllission and/or City Council to """bIe the
Plauning Commissiom llJ1dIor City Coll1lcll to make legally ICquixed findings for project consideration,
UIlless eurrent billing. IIIO paid in fi1!1 prior to d=ci&ion.
S, Therefore, APPLICANT ajlrCe8 that In considemion of the CITY'. waiver of its right to
collect full fees prior to I det=inalion of application cempl.lllness, APPLICANT shall pay an initial
depositill1heamountofS 546.00 whichi, fOI_ houn of Community Development staff
time, and if aotual recorded costs exceed the initial deposit, APPLICANT shall pay additioll8\ monthly
billings to CITY to roimburse the CITY fOr the pro.wlng of the application mentioned shOlle, Including
post appxowl review at a rate, of 5220.00 pet" planner hour over the :initial deposit. Such periodic paymenrs
shall b. made within 30 days of the billing dale, APPLICANT futther agrees t\1at Wlure to pay 5IIch
accroed coslll shall be grounds for SUSpe:nsioll of processing, and in no case will buJIdlng permits be issued
LllIli1 all costs associated with case processing ba.ve been. paid.
By:
Chris lJendon
Commllllity Development Director
:~~
Dale.: /22/05
ClTY OF ASI'EN
g:\support\forJllS\agrpayas.doc
11130/04
Billing Address lIDd Telephone Number:
Reouired
201 N,'Mill St., Suite 203
Aspen, CO 81611
925-8700
RET~NFORPERMANENTRECORD
Received Time Feb.22,
8:05AM
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: Eie ~dit B.ocord 1lIa.lOalo Fl!<fTl Reports Format lab tjelp
______~__. "____________ _________ ,_,_'_'_'__"m_~_
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Mostel Ponritl ~ RouIingQueue 1..lu
Project I ~ Stotu.lpendu,g
Doscription PARCELS 4. 7 ~ 6 TOP OF MILL SUBDIVISION I PUD
Submi;tod IJODY EDWARDS 970.925<1700
r Vrsblo on tho web?
Owne,---------.----~_.---~--~--~-----~-- -
Loot Name ITOP OF MILL INVESTORS. ~ Fiot Nomoi
Phono1(970) 925.2114
rv O"n.d. Applicant?
-----~-_.__._._- ,--,,----.-------------- - ---.-.,.---------
~4:,r:=~~~::~7~~-~::.;;.:;~; ~, .. -.. -~~~;:-.~:~:-:_~:..~_--
[iiiOr tho poImi dOSCl~on
~alJation ~ Canmont I AtlaclJnonl. I
Custom Fjoldo FooJ I Foe S_ I 8oliont I
Ponril # 1001 T2005,ASLU ;!Ii
~wl r
Stale rco-3 Zip I 81611 ~
Clock IRunting DajI,I'D
Ponrit 10: I 33032
t
Appiod 10212212005 flI I
APIlIO'Ied I flI
Issued I .Q/
FinoJj l.Jl
Expi.. 102/17/2006 flI
1000 S MILL ST
ASPEN CO B1611
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