HomeMy WebLinkAboutcoa.lu.ec.777 Ute Ave.Townhomes.1988
BOny. 575 ~GE .82
304 6 0 5
SUBDIVISION (EXCEPTION) AGREEMENT
FOR
$1L VIA lU.\llS
~ITKfN CNTY l\ECOftBEft
777 UTE AVENUE TOWNHOMES
OCT 5 1118 AH '81
THIS AGREEMENT is made and entered into as of the
day of , 1988, by and between THE CITY OF
ASPEN, COLORADO, a municipal corporation and home rule city
(hereinafter referred to as "City"), and KENT W. SHODEEN (here-
inafter referred to as "Owner"), with reference to the follow-
ing:
WIT N E SSE T H:
WHEREAS, Owner has submitted to the City for approval,
execution and recordation a Final Subdivision Exception Plat
(hereinafter the "Plat") concerning the construction of nine (9)
fully self-contained dwelling units on property owned by Owner
more fully described as being (hereinafter the "Property"):
Parcel A:
Lot lSB, Ute Addition to the City and Townsite
of Aspen, as shown on the Replat of Lot 15,
Ute Addition to the City and Townsite of
Aspen, recorded in Plat Book 10 at Page 91,
and
Parcel B:
Lot 41, according to the Dependent Resurvey
and Survey Plat of the United States Depart-
ment of Interior, Bureau of Land Management,
dated February 14, 1980, located in Section
18, Township 10 South, Range 84 West of the
Sixth Principal Meridian, County of Pitkin,
State of Colorado,
BOOY. 515 f!AliE 83
The foregoing described project is to be known as 777 Ute Avenue
Townhomes and will be hereinafter referred to as the "Project".
WHEREAS, on January 19, 1988, the Planning and Zoning
Commission of the City of Aspen granted preliminary plat approv-
al subject to specific conditions and on September 12, 1988, the
City Council granted final plat approval; and
WHEREAS, the City Council is willing to approve,
execute and accept the plat for recordation on the condition
that Owner agrees to all matters contained in this Agreement;
and
WHEREAS, the City desires to impose certain conditions
and requirements in connection with its approval, execution and
recordation of the Plat as are necessary to protect, promote and
enhance the public welfare; and
WHEREAS, Owner is willing to acknowledge, accept,
abide by and faithfully perform all of the conditions and
requirements imposed by the City; and
WHEREAS, pursuant to Section 20-16 (c) of the Aspen
Municipal Code, the City is entitled to assurances that the
matters hereinafter agreed to will be faithfully performed by
Owner and its successors and assigns; and
WHEREAS, Owner is willing to provide such assurances
to the City,
NOW, THEREFORE, in consideration of the foregoing
premises, the mutual covenants herein contained, and the approv-
al, execution and acceptance of the Plat for recordation by the
City, it is mutually agreed as follows:
-2-
800ll 575 f'AGEM
A. CONSTRUCTION SCHEDULES
Owner and City acknowledge and agree that an exact
particularized construction schedule cannot be agreed to pre-
sently. However, subject to any force majeure, labor disputes,
fire or other unavoidable casualty or cause beyond Owner's
control, any and all of which shall extend the time for perform-
ance, Owner anticipates commencing construction of the sub-grade
garage and three (3) of the projects nine (9) dwelling units
(Phase I) by September, 1988, with the construction to commence
on the remaining six (6) dwelling units (Phase II) in early
1989, for completion by August, 1989. Subject to the foregoing
constraints which, as well, shall extend the time for perform-
ance, Owner anticipates completion of the public improvements
below-described within three (3) months of the completion of the
dwelling units. The timeframes herein set forth represent
Owner's best estimate of completion dates but do not constitute
binding representations or schedules. At the time of
application for a building permit for any phase of the Project,
including the installation of public improvements, Owner shall
provide the City Engineering Department with a precise construc-
tion schedule for that particular phase, to the reasonable
satisfaction of the Engineering Department and Chief Building
Official.
B. CONSTRUCTION OF PUBLIC IMPROVEMENTS
1. Landscaping. Owner shall install landscaping
within the Ute Avenue public right-of-way consistent with the
Landscape Plan depicted on Sheet 4 of the Plat. The Landscape
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~~-~
Plan shows, inter alia, plant material, the proposed treatment
of ground surfaces and other landscape features. Landscaping
shall be completed in an orderly, logical sequence consistent
with planting seasons, climatological conditions and construc-
tion sCheduling.
2. Sidewalk. Owner shall construct, in accordance
with City specifications, a new sidewalk, curb and gutter along
those portions of the Project site that abut the Aspen Mountain
Road and Ute Avenue and shall pave those portions of Aspen
Mountain Road and Ute Avenue that actually abut the Project
site, including a l6-foot paved surface for Aspen Mountain Road
and new pavement, as may be required, on ute Avenue, all as is
more clearly shown on the Landscape Plan depicted on Sheet 4 of
the Plat.
3. Drainage. Owner shall install a new storm sewer
and necessary inlet(s) in that portion of the Aspen Mountain
Road that actually abuts the southeast boundary of the Project
site. The storm sewer facilities and inlet(s) are more clearly
shown on the Grading and Drainage Plans depicted on Sheet 3 of
the Plat.
4. Water System. Owner shall install a new eight-
inch (8") water main to connect the existing twelve-inch (12")
water main located at the south end of Spring Street to the
six-inch (6") main in Original Street in the proximity of its
intersection with Ute Avenue. The location of the water main is
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5"7::. 'S'f!l
BODY', ' (;) cr~S:: ,,1)
more clearly shown on the grading and drainage depicted on Sheet
4 of the Plat.
5. Fire Protection. Owner shall install, in accord-
ance with City specifications, one (1) fire hydrant at the
northeast corner of the Project site as is more clearly shown on
Sheet 4 of the Plat.
C. FINANCIAL ASSURANCES
Owner agrees to secure the performance of the con-
struction and installation of the foregoing described public
improvements and to guaranty one hundred percent (100%) of the
estimated cost of such improvements, which estimated cost, as
approved by the City Engineer, is agreed to be $43,250.00.
Owner shall guaranty such costs in the form of a cash escrow
with the City, or a bank or savings and loan association, or by
an irrevocable sight draft or letter of commitment from a
financially responsible lender that funds in the amount of such
estimated costs are held by it for the account of Owner for the
construction and installation of the foregoing described public
improvements.
This guaranty shall be delivered to the City
prior to the issuance to Owner of a building permit for any part
of the Project, shall be in a form acceptable to the City
Attorney, and shall give the City the right, upon clear and
unequivocal default by Owner, to withdraw funds as necessary and
upon demand, partially or fully to complete or pay for any of
the foregoing described public improvements or pay any undis-
puted outstanding bills for work done thereon by any party, with
-5-
BOOK 515 PAliE '871
any excess guaranty amount to be applied first to additional
administrative or legal costs associated with any such default
before the unused remainder (if any) of such guaranty is re-
leased to Owner. As portions of the required improvements are
completed, the City Engineer shall inspect them, and upon
approval and written acceptance, he shall authorize the release
from the guaranty delivered by Owner of the agreed estimated
costs for that portion of the improvements, except that ten
percent (10%) of the estimated costs shall be withheld until all
proposed improvements are completed and approved by the City
Engineer.
Owner agrees to deliver to City, upon demand therefor
by the City Engineer, a maintenance bond or other sui table
guaranty for the repair or replacement of any existing municipal
improvements damaged during construction of new improvements.
Owner agrees to and hereby does warranty all such
public improvements to accepted standards of good workmanship
for a period of one (1) year from and after acceptance thereof
in writing by the City. In addition hereto, to the extent
feasible Owner shall obtain from its contractors customary
warranties of good workmanship with the City as a beneficiary
thereof, with respect to the foregoing described public improve-
ments.
D. EMPLOYEE HOUSING
Prior to and as a condition of the issuance of a
building permit for any portion of the Project, Owner shall pay
-6-
BOOK 575 PAGE '88
to City, in lieu of the actual construction of employee housing,
an employee housing dedication fee in the amount of $300,000.00,
which has been calculated on the basis of the obligation other-
wise of Owner, herein confirmed, to house twelve (12) low-income
employees.
E. ASPEN MOUNTAIN ROAD DEDICATION
Owner shall, simultaneously with the recordation of
the Plat, dedicate to the City a portion of the property that
actually abuts the Aspen Mountain Road for public road purposes.
The amount, dimension and configuration of the property so
dedicated is more clearly depicted on Sheet 1 of the Plat.
F. SIDEWALK ESCROW - UTE AVENUE TRAIL
Prior to and as a condition of the issuance of a
Certificate of Occupancy on any portion of the property, Owner
shall escrow with the City, in an interest-bearing account, the
amount of $1,890.00 to defray the costs of installing a 70' x 6'
sidewalk on Ute Avenue opposite the Project. For the ten-year
period next succeeding the date of the initial submission for
development approval of the Project (i.e., December 1, 1987),
the City shall have the right, at once or from time to time, to
draw upon the escrow to defray the costs of (i) installing the
sidewalk, (ii) repairs to the Ute Avenue Trail in the immediate
vicinity of the Project, or (iii) acquisition of missing trail
right-of-way alignments along Ute Avenue Trail in the immediate
vicinity of the Project, whichever in the estimate in the City
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BOOK 575 'l'Alit 89
is at the time deemed by it most advisable. If no such project
for the utilization of the escrow is commenced during the life
of the escrow the principal thereof, together with interest
accrued, shall be immediately returned by the City to Owner.
The area in the proximity of the Project where any such sidewalk
may be installed is more clearly shown on the Landscape Plan
depicted on Sheet 4 of the Plat.
G. PARK DEVELOPMENT IMPACT FEE
Prior to and as a condition of the issuance of a
building permit for any portion of the Project, Owner shall pay
to City, a park development impact fee in the amount of
$21,840.00, which shall be deposited in the manner and
maintained and utilized by the City only for the purposes set
forth in Section 5-604 of the Aspen Land Use Regulations.
H. IMPROVEMENTS DISTRICTS
In the event that any municipal improvement(s) of the
kind contemplated in Section 20-16 of the Aspen Municipal Code,
as amended, become in the sole judgment or discretion of the
City necessary or desirable to the area of the Project, Owner
will make no objection to any special assessment or special tax
or proceeding therefor on the basis that the property is ade-
quately served by existing improvements or on the basis that the
property will not be served or benefitted by the improvement(s)
-8-
BOOK;) 75 l'AlIT 00
proposed, provided that any such assessment or tax accomplishes
an equitable allocation of expenditures among the properties to
be served by the installation of such improvement(s). Further-
more, Owner agrees to join, upon demand by the City, any im-
provement district formed for construction of such improve-
ment (s) including, without limitation, drainage, underground
utilities, paving, curbs, gutters, sidewalks, street lights,
etc., in the area of the Project or to reimburse the City of
Aspen directly, upon demand therefor, if the City should choose
to construct these improvements without the formation of such a
district; provided that any such reimbursement by Owner to City
accomplishes an equitable allocation of the costs of such
improvement(s) among the properties benefitted by such improve-
mentIs).
I. NON-COMPLIANCE AND REQUEST FOR AMENDMENTS
OR EXTENSIONS BY OWNER
In the event the City Council determines that Owner is
not acting in substantial compliance with the terms of this
Agreement, the City Council may issue and serve upon Owner a
written order specifying the alleged non-compliance and requir-
ing Owner to remedy the same within such reasonable time as the
City Council may determine. Within twenty (20) days of the
receipt of such order, Owner may file with the City Council
either a notice advising the City Council that it is in compli-
ance, or a written petition requesting a hearing to determine
anyone or both of the following matters:
-9-
000:1 575f'ASE 91
(i) whether the alleged non-compliance exists or
did exist, or
(ii) whether a variance, 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, City Council shall promptly
schedule a hearing to consider the matters set forth in the
cease and desist order and in the petition. The hearing shall
be convened and conducted pursuant to the procedures normally
established by the City Council for other hearings. If the City
Council determines by a preponderance of the evidence that a
non-compliance exists which has not been remedied, it may issue
such orders as may be appropriate; provided, however, no order
terminating any approval granted herein shall be issued without
a finding by the City that substantial evidence warrants such
action and affording Owner a reasonable time to remedy such
non-compliance. A final determination of non-compliance, which
has not been remedied or for which no variance has been granted
may, at the option of the City Council, and upon written notice
to Owner, terminate any of the approvals contained herein which
are reasonably related to the requirement(s) with respect to
which Owner has failed to comply. Alternatively, the City
Council may grant such variances, extensions of time or amend-
ments to this Agreement as it may deem appropriate under the
circumstances.
-10-
1:::. ,-,- ill'}
BOOKd t'J VASt J(..,
In addition to the foregoing, Owner or its successors
or assigns, may on his or their own initiative petition the City
Council for a variance, an amendment to this Agreement or an
extension of one or more of the time periods required for
performance under construction schedules or otherwise. The City
Council may grant such variances or amendments to this Agreement
or extensions of time as it may deem appropriate under the
circumstances.
J. MISCELLANEOUS PROVISIONS
1. Notices. Notices to be given to the parties to
this Agreement shall be deemed given if personally delivered or
if deposited in the United States Mail to the parties by regis-
tered or certified mail at the addresses indicated below, or at
such other addresses as may be substituted upon written notice
by the parties or their successors or assigns:
If to City of Aspen:
City Manager
130 S. Galena Street
Aspen, CO 81611
If to Owner:
Kent W. Shodeen
13 S. Seventh Street
Geneva, IL 60134
with a Copy to:
Robert W. Hughes, Esq.
Oates, Hughes & Knezevich, P.C.
533 E. Hopkins, Third Floor
Aspen, CO 81611
2. Binding Clause. The provisions hereof shall run
with and constitute a burden upon the title to the Property and
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BOOK '575 rASE 93
shall be binding upon and shall inure to the benefit of Owner
and the City, together with their respective heirs, personal
representatives, successors, grantees and assigns.
3. Applicable Law. This Agreement shall be subject
to and construed in accordance with the laws of the State of
Colorado and the Municipal Code of the City of Aspen.
4. Severability. If any of the provisions of this
Agreement or any paragraph, sentence, clause, phrase, word or
section of the application thereof in any circumstance is
invalidated, such invalidity shall not affect the validity of
the remainder of this Agreement and the validity of any such
provision, paragraph, sentence, clause, phrase, word or section
under any other circumstances shall not be affected thereby.
5. Entire Agreement - Amendment. This Agreement
contains the entire understanding and agreement between the
parties hereto with respect to the transactions contemplated
hereby and may be altered or amended from time to time only by
written instrument executed by each of the parties hereto.
6. Acceptance of Plat - Ratification by Owner. Upon
execution of this Agreement by all parties hereto, the City
agrees to approve and execute the final subdivision exception
plat for the project and to accept the same for recordation in
the recording office of Pitkin County, Colorado, upon payment of
the recordation fee and costs to the City by Owner. For his
part, Owner hereby ratifies and confirms each and every
-12-
BOOK 515VAGE ~!.M
representation and public dedication made and set forth by Owner
on said plat.
IN WITNESS WHEREOF, the parties have hereunto set
II..
seals the day and year first above written.
O~
U/Ab~~
rt Shodeen
STATE OF COLORADO )
) ss.
COUNTY OF PITKIN )
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::.." :\P;~,lcorpor~tJ.on, by WILLIAM L. STIRLING, Mayor, and by
''', , ,~.;~OCH, CJ.ty Clerk.
" '+1:)"
;l'4I'ft:' "')'~ ~'\~ri~ss my hand and official seal.
0, JC.\~y commission expires: JJ 1J;17 q I
(SEAL)' .
STATE OF COLORADO
ss.
COUNTY OF PITKIN
'f~
The foregoing instrument was acknowledged before me this
day of .a0obe...- , 1988, by Kent Shodeen.
WITNESS my hand and official seal.
My commission expires: Jj)3} 'i;'f
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DAlES, tflfjHF5 & KJ'IIElEVIOI P.C
Third Floor, Alipen Pian Building
533 East Hopkins
Aspen, Colondo 8161 1
BOOK 575 'f!AliE 95
DECLARATION OF COVENANTS, RESTRICTIONS
AND CONDITIONS FOR THE 777 UTE AVENUE TOWNHOMES SUBDIVISION
KENT W. SHODEEN ("Covenantor"), for himself, his
heirs, executors, administrators and assigns, in consideration
of the granting of an exception from the full subdivision
process for the purpose of the subdivision of the below des-
cribed property, hereby covenants with the City of Aspen,
Pitkin County, Colorado, to restrict such property, and hereby
does restrict such property, as follows:
1. Covenantor is the owner of the following des-
cribed property (the "Property"), together with the improve-
ments thereon, situated in the City of Aspen, County of Pitkin,
State of Colorado:
Lot lSB, Ute Addition to the City and Town-
site of Aspen, as shown on the Replat of Lot
15, Ute Addition to the City and Townsite of
Aspen, recorded in Plat Book 10 at Page 91,
and
Parcel B:
Lot 41, according to the Dependent Resurvey
and Survey Plat of the United States Depart-
ment of Interior, Bureau of Land Management,
dated February 14, 1980, located in Section
18, Township 10 South, Range 84 West of the
sixth Principal Meridian, County of Pitkin,
State of Colorado,
2. All representations of the Covenantor made in
his development application as submitted to the City requesting
approval of the 777 Ute Avenue Townhomes Subdivision under the
subdivision exception guidelines of the Municipal Code of the
,
,,~
BOOK 575 PAGE 95
City of Aspen, prior to revision (the "Old Code") shall be
adhered to by Covenantor.
3. In the event that any municipal improvement or
improvements of a kind contemplated in Section 20-16 of the Old
Code become in the sole judgment or discretion of the City
Council of the City of Aspen, necessary or desirable to the
area of the 777 Ute Avenue Townhomes Subdivision, Covenantor
agrees to join, upon the City's demand therefor, any improve-
ment district formed for construction of such improvements
(including, without limitation, drainage, underground utili-
ties, paving, curbs, gutters, sidewalks, street lights, etc.)
in the area of the 777 ute Avenue Townhomes Subdivision or to
reimburse the City of Aspen directly upon demand therefor if
the City should choose to construct these improvements without
the formation of such a district, provided that such reimburse-
ment accomplishes an equitable allocation of the costs of such
improvement(s) among the properties benefitted thereby.
4. The covenants herein may be changed, modified or
amended by the recording of a written instrument signed by the
record owners of the Property and the Mayor of the City of
Aspen pursuant to a vote taken by the City Council.
S. The covenants herein contained shall run with
the Property and shall be binding upon all parties having any
right, title or interest therein or any part thereof, and their
heirs, representatives, successors and assigns, for the period
of the life of the longest-lived member of the presently-
-2-
',>
II
~,
'T
BOOK 575 fAGf 97
constituted Aspen City Council plus twenty-one (21) years, or
for a period of fifty (50) years from the date these covenants
are recorded, whichever is less.
6. None of the covenants contained herein shall be
released or waived in any respect during the period they are
binding without the prior consent of the City of Aspen re-
flected by resolution of the City Council of the City of Aspen.
7. In any legal proceeding to enforce the provi-
sions of these covenants, restrictions and conditions, the
prevailing party shall be entitled to recover its costs and
fees therein, including its reasonable attorney fees and expert
witness fees.
IN WITNESS WHEREOF, this Declaration has been duly
executed this 'Ii!., day of
tJ cr.
, 1988.
~~
~nt W. Shodeen
STATE OF COLORADO
)
) ss.
)
COUNTY OF PITKIN
The foregoing instrument was sworn and subscribed to
before me this 4'f1.. day of I'){/-W~N , 1988, by KENT W.
SHODEEN.
WITNESS my hand and official seal.
My commission expires: 1/ 'l.l{fq
, ^', , '
L'V\ itjJ)Y.J )'. (' .6-.1/\..0
Notary Public
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CHARLES CUNNIFFE &ASSOCIATES/ARCHITECTS
S70 FAST HYMAN. SUITE 301, ASPEN, CO 81611 303/975-5590
CHARLES L, CUNNIFFE, AJA
January 29, 1990
Mr. Bill Drueding
Zoning Department
City of Aspen
130 S. Galena
Aspen, Colorado 81611
Re: 777 Ute Avenue
Townhomes
Aspen, CO 81611
Dea;: Bill:
As we discussed in our meeting on January 23, the number of units
for this project has been reduced from 9 units, as approved, to 8
units. The changes that were made to accomplish this reduction
are outlined below.
Unit 1:
Unit 2:
Unit 3A
and 3B:
Unit 4:
Unit 5:
Unit 6A
and 6B:
Remains basically the same except some space was added
on the second floor to the south west of the elevator
for another bedroom suite. This unit now has 4
bedrooms. The space was taken from what was Unit 2.
Becomes a 2-bedroom flat at the first floor by taking
most of the space from what was Unit 3 bedrooms.
Has only an entry foyer with stair at the first floor.
The second floor has expanded to include the remainder
of the space from Unit 2 for a 2-bedroom lock-ou~ llfiit
(3A). The third floor has been expanded to includ~ the
space from Unit 2 for a I-bedroom Unit (31l). Both the
units will have full kitchens.
Remains basically the same,as a 3-bedroom unit on 3
floors.
Remains basically the same, as a 3-bedroom unit on 3
floors.
The first floor has been divided so that there is a l-
bedroom lock-out unit (6A), plus an entry foyar with
CHARLES CUNNIFFE &ASSOCIATES/ARCHITECTS
5/0 FAST HYMAN. SUITE 301. ASPEN. CO 81611 303/925-5590
CHARLES L CUNNIFFE, AlA
Mr. Bill Drueding
January 29, 1990
Page Two
stair up to the remainder of the space on second and
third floor as a 2-bedroom unit (6B). Unit 6A will
have a kitchenette and 6B will have a full kitchen as
before.
Please give me a call if you have any questions.
Sincerely,
~LC1t
Charles L. Cunniffe, A.I.A.
cc: Kent Shodeen
Tom Baker
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