HomeMy WebLinkAboutLand Use Case.531 E Cooper Ave.HPC008-99PN: 2737-182-22003 Case HPC008-99 531 E. Cooper Minor HPC . 1)24, A C d p- 6 1 4
.. ., PARCEL ID:|2737-182-22003 DATE RdVD: 13/56199 #COPIES:~1 CASE NO~HPC008-99 CASE NAME: 531 E. Cooper Avenue Minor HPC PLNR:~Amy Guthrie r PROJ ADDR:~531 E. Cooper Avenue CASE TYP:IHPC Minor STEPS:~ OWN/APP:]Jim Geib ADR1106 S. Mill Street, Ste. C/S/Z: ~Aspen, CO 81611 , PHN:1925-7575 f REP:~Brian Smith ADR:~same as above c/S/Z:j PHN:~same as above FEES DUE:~120 (hpc) FEES RCVD~ 120 STAT: F REFERRAL.S~ REF:| BY| ' DUE:| MTG DATE REV BODY PH NOTICED j , .......'-'I . ./.-I..... t DATE OF FINAL ACTION:| -- CITY COUNCIL: REMARKS| PZ: BOA: CLOSED:| . BY: I DRAC: PLAT SUBMITD: | PLAT (BK,PG):| ADMIN: m
.. RESOLUTION OF THE ASPEN HISTORIC PRESERVATION COMMISSION DENYING AN APPLICATION FOR MINOR DEVELOPMENT LOCATED AT 531 E. COOPER AVENUE, ASPEN, COLORADO RESOLUTION NO. 18, SERIES OF 1999 WHEREAS, the applicant, Stein Eriksen, represented by Jim Geib and Brian Smith, has requested minor development approval for the property located at 531 E. Cooper Avenue, Lots G,H, and I, City and Townsite of Aspen. The property is landmark designated and located within the Commercial Core Historic District; and WHEREAS, all development in an "H," Historic Overlay District or development involving a historic landmark must meet all four Development Review Standards of Section 26.72.010(D) of the Aspen Land Use Code in order for HPC to grant approval, namely: 1. Standard: The proposed development is compatible in general design, massing and volume, scale and site plan with designated historic structures located on the parcel and with development on adjacent parcels when the subject site is in a "H," Historic Overlay District or is adj acent to an Historic Landmark. 2. Standard: The proposed development reflects and is consistent with the character of the neighborhood ofthe parcel proposed for development. 3. Standard: The proposed development enhances or does not detract from the historic significance of designated historic structures located on the parcel proposed for development or on adjacent parcels. 4. Standard: The proposed development enhances or does not diminish from the architectural character or integrity of a designated historic structure or part thereof; and WHEREAS, Amy Guthrie, in her staff report dated April 14, 1999, recommended that the majority of the historic windows (those facing Hunter Street and East Cooper Avenue) be repaired, after further inspection by the HPC, and that the HPC consider allowing replacement of windows on the west side of the building; and WHEREAS, at their regular meeting on April 14, 1999, the Historic Preservation Commission considered and denied the application, deciding that none of the windows can be replaced, by a vote of 7 to 0.
.. NOW, THEREFORE, BE IT RESOLVED: That minor development for 531 E. Cooper Avenue, Lots G,H, and I, Aspen, Colorado, be denied. APPROVED BY THE COMMISSION at its regular meeting on the 14th day of April, 1999. Approved as to Form: David Hoefer, Assistant City Attorney HISTORIC PRESERVATION COMMISSION Suzannah Reid, Chair ATTEST: Kathy Strickland, Chief Deputy Clerk
.. MEMORANDUM TO: Aspen Historic Preservation Commission THRU: Julie Ann Woods, Community Development Director THRU: Joyce Ohlson, Deputy Planning Director FROM: Amy Guthrie, Historic Preservation Officer RE: 531 E. Cooper Avenue- minor DATE: April 14,1999 SUMMARY: The applicant, Stein Eriksen, requests HPC approval to replace all of the upper floor double hung windows on the LaFave Block and the Bowman Building, where Les Chefs, The Art of Optics, and Aspen Luggage Company are located. The subject buildings are designated historic landmarks and located in the Commercial Core Historic District. APPLICANT: Stein Eriksen, represented by Jim Geib and Brian Smith. LOCATION: 531 E. Cooper Avenue, Lots G,H, and I, Block 96, City and Townsite of Aspen. PROJECT SUMMARY AND REVIEW PROCESS: All development in an "H," Historic Overlay District, or development involving a historic landmark must meet all four Development Review Standards found in Section 26.72.010(D) of the Aspen Land Use Code in order for HPC to grant approval. 1. Standard: The proposed development is compatible in general design, massing and volume, scale and site plan with designated historic structures located on the parcel and with development on adjacent parcels when the subject site is in a "H " Historic Overlay District or is adjacent to an Historic Landmark. For Historic Landmarks where proposed development would extend into front yard, side yard and rear yard setbacks, extend into the minimum distance between buildings on the lot or exceed the allowed floor area by up to five hundred (500) square feet or the allowed site covered by up to five (5) percent, HPC may grant such variances after making a finding that such variation is more compatible in character with the historic landmark and the neighborhood, than would be development in accord with dimensional requirements. In no event shall yariations pursuant to this section
.. exceed those variations allowed under the Cottage Infill Program for detached accessory dwelling units, pursuant to Section 26.40.090(B)(2). Response: The applicant proposes to replace the existing windows with new windows to match. There are no other additions to be made to the building or requests for variances. 2. Standard: The proposed development reflects and is consistent with the character of the neighborhood of the parcel proposed for development. Response: The buildings are located in the Commercial Core Historic District and are individually landmarked. In addition, the La Fave building is listed on the National Register of Historic Places. Preservation of these building, including their original features and materials, is very important to the character of the surrounding neighborhood. 3. Standard: The proposed development enhances or does not detract from the historic significance of designated historic structures located on the parcel proposed for development or on adjacent parcels. Response: Replacement of the original windows will not diminish the historical significance of the site, that is their association with Aspen's mining era and individuals such as Fritz Benedict, Herbert Bayer, and Stein Eriksen. 4. Standard: The proposed development enhances or does not diminish from the architectural character and integrity of a designated historic structure or part thereo£ Response: Replacement of the original windows will diminish the architectural character and integrity of the structures by removing original materials rather than repairing and retaining them. The replacement windows may be similar to the existing windows, but they will not replicate exactly the very narrow proportions of the window sash or any original glass that exists. They will also remove some of the authenticity from the buildings. HPC is to conduct a site visit to the buildings on the day of the review for a closer inspection of the window condition. From the street they appear to have a typical level of deterioration for windows of this age, and could be repaired. In terms of their ability to operate correctly, this is dependent on the original mechanism. If they used sash cords and weights, the windows can be dismantled and the weight system repaired or replaced. If pins were used to lock the sash in place, these can also be repaired. Any areas of rot can be addressed through selective repair and
.. replacement of particular areas and the use of wood epoxies. If the window glass is loose, new putty can be added to secure the glass. The specifics of the repairs can better be discussed following the site visit. It is the staff recommendation however that all efforts be made to repair rather than replace the windows along Hunter Street and East Cooper Avenue. The HPC may want to allow new windows along the "alley that exists between the subject " building and the Aspen Grove Building. These windows are probably original to the building, but they are of a different proportion, not as architecturally important to the building, and not easily visible from the street. ALTERNATIVES: The HPC may consider any of the following alternatives: • Approve the Minor Development application as submitted. • Approve the Minor Development application with conditions to be met prior to issuance of a building permit. • Table action to allow the applicant further time for restudy. (Specific recommendations should be offered.) • Deny Minor Development approval finding that the application does not meet the Development Review Standards. RECOMMENDATION AND RECOMMENDED MOTION: Staff recommends the HPC conduct a site visit to view the windows up close on the day of the meeting and then give the applicant direction on appropriate repair treatments. Exhibits: Resolution No. , Series of 1999 A. Staff memo dated April 14,1999 B. Application
STEIN ERIKSEN FAMILY PARTNERSHIP, LLLP RECEIVED dul 2 0 1999 July 19, 1999 ASPEN / PiTKIN City of Aspen Community Development Dept Attn: Amy Guthrie 130 S Galena St. Aspen, CO 81611 Dear Amy: I want to update you on the status of the brick work violation on Stein's building I have tried to contact· i couple of masoner's and have not heard back from them. I will keep on it and hopefully have somebody lined up by the end of next week. I will not be able to get somebody hired this week because I have to leave town for business and will not return until Friday If you should have any questions, please feel free to give me a call anytime. Sincerely, Brian Smith 106 S MILL ST, STE 200 · ASPEN, COLORADO · 81611 PHONE: 970.925.7575 · FAX: 970.925.1265 7
June 25, 1999 Brian Smith Stein Eriksen Family Partnership, LLLP ASPEM F4TKIN 106 S. Mill Street, Suite 200 COMMUNIn DEVELOPMENT DEFARTMENT Aspen, CO 81611 Re: Masonry work at 529 E. Cooper Avenue Dear Brian; As we have previously discussed, the masonry work that was undertaken on the west wall of 529 E. Cooper Avenue was done without the necessary building permits and Historic Preservation Commission (HPC) approval. The HPC has determined that this work wifl be detrimental to the long term condition of the building because it was done using a mortar composition that is not appropriate to a 19th century structure. Historic mortar has a much higher lime dontent than modern mortar (which has more portland cement) and is therefore more flexible. The portland cement can create a bond that is stronger than the historic material and can cause damage, such as cracking. This correction notice is being issued to require that the work performed on the bottom portion of the wall, which I believe covers the lower nine courses of brick, is to *be removed and redone using a "Type O" mortar. The composition of"Type O" mortar is as follows (parts of each ingredient by volume): 1 part portland cement, 2 92 parts lime, and 8-10 parts sand. Although the building is painted, the mason must match the color of the mortar on the remainder of the west wall. This may require using white portland cement instead of gray, and a buff mortar pigment. This same mortar "recipe" is to be used for all other repointing done on the adj acent structures. I am including a chapter from a National Trust for Historic Preservation book on masonry. This chapter describes the proper repointing techniques which are to be followed. Please be aware that in the case of the west wall of 529 E. Cooper Avenue, the lower courses are not simply to be raked out and repointed. All of the work' done last summer is to be entirely removed and redone to eliminate the incorrect mortar application. The brick coursing, mortar joint width, and j6int tooling are to be identical to the historic conditions. Please contact me with any questions. A building permit (a repair permit) must be received before the masonry work can begin. 130 Sol. TH G.\1.ENA STREET · ASPEN, COLORADO 81611-1973 PHONE 970.920.3090 F.u 970.920.5439 Printed un Recvcled Paper
~Carely, ~ 49.U f ' g~/Amy Gu~e/ Historic~reservation Officer CC: David Hoefer, Assistant City Attorney Aspen Historic Preservation Commission Stephen Kanipe, Chief Building Official \ J ,
ASPEN~PITK]N COMMUNITY DEVELOPMENT DEPARTMENT ~ICORRECTION NOTICE 9 STOP WORK ORDER Cy-A31 E C.«rv .»141 4. 1 have :N.!s jav rsce:te,2 this structure and these premi S C:·craCC =.22 a':93_:2',9--!rc SE:--9. L-8 lou414.1,1 or <2«14 044 2-4-9,72„ Dio.C.2 Ut»1 1 6* .2+\44 (AR 5*gln0i-~4-0 elap'\ 1 D»A-u vtzy ovt Z:> &5H-Av i /) €A--6 ud-U v» w Allock pary 2299yx/al<a U \004+10 r.4 0¢= le,94 48(-_ ge-e_~ tOG. I- woldc. u) 86'zt- f--8. . Correct By 7 ~754~·77 (30 days from the date of notice.) Photos Taken: tes O Cniess otherwise noted. You are hereby notified that no more work may be done upon the premises until above violations are corrected. Failure to correct the violations within thirty (30) days may subject you to a civil suit for an injunction, or a fine, or both; or to a misdemeanor criminal - prosecution, which upon conviction may carr/ a sentence, or fine, or imprisonment, or both.„PiAse contact the nepartme®Immjdiarely /1 to assure timely corry€tit? ~ . I ,- 4 .11 - - 0)'206 1942:22(ent Department D~te 1 i Community Devilpfrhdht~ep ;R~ t Phone: 920-5090 DO NOT REMOVE THIS TAG '*?ty-aiL·6 =j:942+99:03~*.*3174-·9;:-t_tif--Lt)·4{{3-93 3, --3 --: - 9 1.432-4~--.9 -·'.Ar .......:* 2.2141.9.:i:. f:...119-·i· .·.€:-.t·}-~~~~ .... 9 - -er.452. --/ - :/ & I - /- 1. -:«13:4= 4) 1 1 41 /.)
June 25, 1999 Brian Smith Stein Eriksen Family Partnership, LLLP + AsPEN · PITKIN- 106 S. Mill Street, Suite 200 COMMUNITY DEVELOPMENT DEPARTJIENT Aspen, CO 81611 RE: Repairs to historic structures Dear Brian; This letter is written in response to your June 17th inquiry about the process for making repairs to the Stein Eriksen buildings on East Cooper Avenue. All repairs that are to be made to the exterior of these buildings will require Historic Preservation Commission (HPC) approval, which will be in the form of me reviewing building permit requests on the HPC's behalf. ·Your letter mentions minor repairs to the concrete sidewalks in front of the building. This public right of way area is not part of HPC's review. Only Building Department and Engineering Department approval are needed. Brick repointing on the historic structures will need to be done under my supervision. The mason will be required- to use an appropriate mortar that matches the rest of the building in terms of composition, color, and tooling. Before a' carpenter undertakes repairs to wood trim, sills, windows, soffits, etc. I will need to meet with them and provide information on acceptable techniques. The idea is to repair rather than replace the existing materials. This is accomplished by using wood epoxies and consolidants. I may not have mentipned to you earlier that there are state income tax credits available for 20% of the cost of exterior restoration work. An application is included. I would be happy to go over it with you if the credits would be of interest. 3}ne~ely, /7 1 A .1 Lf. Amy 6#Art€ Histol Preservation Officer 130 SOUTH GALENA STREET AsFEN, COLORADO 81611-1973 · PHONE 970.920.3090 Fix 970.920.3439 Innted on Ree,·cled Piper U€42*91
.. EL I E- stein eriksen, inc. 106 S. Mill St., Suite 200 · Aspen, CO 81611 · 970/925-7575 March 30,1999 City of Aspen Attn: Amy Guthrie 130 S. Galena St. Aspen, CO 81611 Dear Ms. Guthrie: Enclosed you will find our application to replace windows in the Stein Eriksen/Bowman Building located at 531 E. Cooper Ave. I authorize Brian Smith, Property Manager, to act on behalf of the applicant for this project. Ifyou should have any questions, please call him at 925.7575. Thank you for your time in this matter. Sincerely, 0--- James Geib Vice President/Treasurer
0 . UNANIMOUS WRITTEN CONSENT IN LIEU OF THE ORGANIZATIONAL MEETING OF THE BOARD OF DIRECTORS OF ,; 4 ERIKSEN MANAGEMENT, INC. '-- Pur i tti 'ht: -glorado Busio- Corporation Act,theundenign,d, being tholot, Director of Er iluen Manaitm " . ric. hordnaft. the 'COrporation," con•nu to the following actions on behal f of the Cir™ r 1. REEL ED, th« a certified copy of the Allicles of Incomontion tuu.d to the Colporation on F 1.: :1 1 7 1998, be in=led into the Corpor•tion':minute book, 2. RE Pl 'ED, that the Bylaw. signed by thi Sicrotary of the Corporation simultan,ously herew -- - nave bion Nproved nd adopted on behalfofthe Corporation and plaoed in the Corporatio' i. ' · .!w book. 3. AE<G ED, thattheact,ofthofoundit:forandonbehalfofth®Corporationprior to its incorporativ t .c ilereby ratified, approved and adopted, and that the incorporatofs and foundets of the C.rip,-u· son be dj,charged by th•Corporation and indinnified fromand againit any expense or liabli' - i -e i by reason ofbeing the Incorporatoror founders ofthe Corpor•tion. 4. RE HAL CD, thet the following perion 11 elected to the Offices * fbrth below and shall lerve in Buc! t: e : 3 in accordance with the provisions of the Bylaws: Ste,h F':, .jen Pruident and Scoltify larnt, 4 ! kib Vt¢0 Preaident and Treuumr 3. RESO!. i ED, that the Corporation's :cal which accompanied th. Corporation't corporate outfit be ,*. . 1 on behalf of the Corporition. 6. RESIci ' TI). that the Common Stock of the Corporation shall be in the form contained in th€ C. r: p·fi coiporatooutfit 7. RES€:I ' 7,9. that <bc Corporation issue 1000 sharcs of it• capital *tock to Stein Eriksen in return f f ·· 1,·ttal contribution reflected in the Corporation': accounting record•. M·*R-*th-*DO, 1 '' . tu 01.94 7 4 C" ]L ' ~ ~ ~ ''~6.It~ . - 4- .VV i i
.. 8 Rilbe vFD, thatthe Corporation elects to betreated u an S Corporation for federal income tax purpoles ; id the offic- ue dii•cted to file •Form 2553 Election by a Small Business Corporation witt .: , 'ternal Rnvenu¢ Service This Unaturr us Consent shall b• cffwlive as of the 17' Ay of August, 1998, notwithstandir £ 1 . »81 date of signing. -- ... / Ar / 1 L/ »»44 4*** / Stein Erik*n, Sole Efirector M **r,-oluNInk= it' 1 *- 4- .IAR.01,•W 2 --33- (13::i¥£ riv'..·.. 366, h U. .
0. 0 Owner's Policy of Title insurance Fidelity National Title Insurance Company A Stock Company Policy Number 1312- 120290 OWNER'S POLICY OF TITLE INSURANCE SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, FIDELITY NATIONAL TITLE INSURANCE COMPANY, a corporation, herein called the Company, insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the Amount of Insurance stated in Schedule A, sustained or incurred by the insured by reason of: 1. Title to the estate or interest described in Schedule A being vested other than as stated herein; 2. Any defect in or lien or encumbrance on the title: 3. Unmarketability of the title; 4. Lack of a right of access to andfrom the land. The Company will also pay the costs, attorneys'fees and expenses incurred in defense ofthe title, as insured, but only to the extent provided in the Conditions and Stipulations. IN WITNESS WHEREOE FIDELITY NATIONAL TITLE INSURANCE COMPANY has caused this policy to be signed and sealed by its duly authorked omcers as of Date of policy shown in Schedule A. Fidelity National Title Insurance Company L) /4 6374:feteawEES(3,26921(23*.553.. C./I- 'SEALI President ATTEST (4\I-al.4.45*%n90 UL«q-1 6 · 3~-LO Secretary Countersigned: Authorized Signature ALTA Owner's Policy (10-17-92) FNTIC Form No. 1312 (6/93)
.. ENT SCHEDULE A-OWNER'S POLICY CASE NUMBER DATE OF POLICY AMOUNT OF INSURANCE POLICY NUMBER PCT13267C3 09/29/98 @ 3:54 P.M. $ 4,900,000.00 1312-120290 1. NAME OF INSURED: STEIN ERIKSEN FAMILY PARTNERSHIP, LLLP, a Colorado limited liability limited partnership 2. THE ESTATE OR INTEREST IN THE LAND HEREIN AND WHICH IS COVERED BY THIS POLICY IS: IN FEE SIMPLE 3. THE ESTATE OR INTEREST REFERRED TO HEREIN IS AT DATE OF POLICY VESTED IN: STEIN ERIKSEN FAMILY PARTNERSHIP, LLLP, a Colorado limited liability limited partnership 4. THE LAND REFERRED TO IN THIS POLICY IS SITUATED IN THE COUNTY OF PITKIN, STATE OF COLORADO AND IS DESCRIBED AS FOLLOWS: ALL OF LOT I, ALL OF LOT H, AND THE EASTERLY 5 FEET OF LOT G, BLOCK 96, CITY AND TOWNSITE OF ASPEN PITKIN COUNTY TITLE, INC. 601 E. HOPKINS AVE. ASPEN, COLORADO 81611 (970) 925-1766/(970)-925-6527 FAX THE POLICY NUMBER SHOWN ON THIS SCHEDULE MUST AGREE WITH THE PREPRINTED NUMBER ON THE COVER SHEET.
.. SCHEDULE B-OWNERS CASE NUMBER DATE OF POLICY POLICY NUMBER PCT13267C3 09/29/98 @ 3:54 P.M. 1312-120290 THIS POLICY DOES NOT INSURE AGAINST LOSS OR DAMAGE BY REASON OF THE FOLLOWING: 1. Rights or claims of parties in possession not shown by the public records. 2. Easements, or claims of easements, not shown by the public records. 3. Discrepancies, conflicts in boundary lines, shortage in area, enchroachments, any facts which a correct survey and inspection of the premises would disclose and which are not shown by the public records. 4. Any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the public records. 5. Water rights, claims or title to water. 6. Taxes for the year 1998 not yet due or payable. 7. Reservations and exceptions as set forth in the Deed from the City of Aspen recorded in Book 59 at Page 221, 240, 287 & 453 providing as follows: "That no title shall be hereby acquired to any mine of gold, silver, cinnabar or copper or to any valid mining claim or possession held under existing laws". 8. Notice of Historic Designation recorded January 13, 1975 in Book 295 at Page 515. 9. Rights of tenants in possession under unrecorded leases solely as tenants and solely with respect to space occupied by each such tenant, (togepher with non-exclusive rights in common with other tenants in areas used by all tenants). 10. Deed of Trust from : STEIN ERIKSEN FAMILY PARTNERSHIP, LLLP To the Public Trustee of the County of Pitkin For the use of : GENERAL ELECTRIC CAPITAL CORPORATION Original Amount : $2,222,000.00 Dated : September 28, 1998 Recorded : September 29, 1998 Reception No. : 422580 Assignment of Rents and Leases given in connection with the above Deed of Trust recorded September 29, 1998 as Reception No. 422581. 11. Security interest under the Uniform Commercial Code affecting subject property, notice of which is given by Financing Statement from STEIN ERIKSEN FAMILY PARTNERSHIP, LLP, debtor to GENERAL , ELECTRIC CAPITAL CORPORATION, secured party, Recorded September 29, 1998 as Reception No. 422582. EXCEPTIONS NUMBERED 1, 2, 3&4 ARE HEREBY OMITTED.
EXCLUSIONS FROM COVERAGE The following matters are expressly excluded fl~ coverage of this policy and the Company will not pa~r damage, costs, attorneys' fees or expenses which arise by reason of: ../.. .- 1. (a) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the land; (iii) a separation in ownership or a change in the,dimensions or area of the land or any parcel of which the land is or was a part; or (iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Defects, liens, encumbrances, adverse claims or other matters: (a) created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy; or (e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the estate or interest insured by this policy. 4. Any claim which arises out of the transaction vesting in the Insured the estate or interest insured by this policy, by reason of the operation of federal bankruptcy, state insolvench or similar creditors' rights law, thal is based on: (i) the transaction creating the estate or interest insured by this policy being deemed a fraudulent conveyance or fraudulent transfer; or (ii) the transaction creating the estate or interest insured by this policy being deemed a preferential transfer except where the preferential transfer results from the failure: (a) to timely record the instrument of transfer; or (b) of such recordation to impart notice to a purchaser for value or a judgment or lien creditor. CONDITIONS AND STIPULATIONS 1. DEFINITION OF TERMS reasonable cause) to represent the insured as to those stated causes of action and The following terms when used in this policy mean: shall not be liable for and will not pay the fees of any other counsel. The Company (a) ''insured-: the insured named in Schedule A, and, subject to any rights or will not pay any fees, costs or expenses incurred by the insured in the defense of defenses the Company would have had against the named insured, those who suc- those causes of action which allege matters not insured against by this policy. -eed to the interest of the named insured by operation of law as distinguished from (b) The Company shall have the right, at its own cost, to institute and prosecute purchase including, but not limited to, heirs. distributees. devisees, survivors, per- any action or proceeding or to do any other act which in its opinjon may be necessary sonal representatives, next of kin, or corporate or fiduciary successors. or desirable to establish the title to the estate or interest, as insured, or to prevent (b) ''insured claimant'': an insured claiming loss or darnage. or reduce loss or damage to the insured. The Company may take any appropriate {c) '~knowledge'' or ''known": actual knowledge, not constructive knowledge action under the terms of this policy, whether or not it shall be liable hereunder, or notice which may be imputed to an insured by reason of the public records as and shall not thereby concede liability or waive any provision of this policy. I f the defined in this policy or any other records which impart constructive notice of mat- Company shall exercise its rights under this paragraph, it shall do so diligently. ters affecting the land, (d) ''land": the land described or referred to in Schedule A, and improvements (c) Whenever the Company shall have brought an action or interposed a defense affixed thereto which by law constitute ieal property. The term ''land" does as required or permitted by the provisions of this policy, the Company may pursue not include any properly beyond the lines of the area described or referred to in any litigation to final determination by a court of competent jurisdiction and ex- Schedule A. nor any right, title. interest, estate or easement in abutting streets, roads, pressly reserves the right, in its sole discretion, to appeal from any adverse Judg- avenues, alleys, lanes, ways or waterways, but nothing herein shall modify or limit ment or order. the extent to which a right of access to and from the land is insured by this policy. (d) In all cases where this policy permits or requires the Company to prosecute (e) mortgage°: mortgage. deed of trust, trust deed. or other security instrument. or provide for the defense of any action or proceeding, the insured shall secure c D ''public records'' records esta'~lished under state statutes at Date of Policy to the Company the nght to so prosecute or provide defense in the action or pro- for the purpose of imparting constructive notice of matters relating to real property ceeding, and all appeals therein, and permit the Company to use, at its option, the to purchasers for value and without knowledge. With respect to Section 1(a)(iv) name of the insured for this purpose. Whenever requested by the Company, the of the Exclusions From Coverage, '~public records- shall also include environmen- insured, at the Company's expense. shall give the Company all reasonable aid (i) tai protection liens filed in the records of the clerk of the United States district court in any action or proceeding, securing evidence, obtaining witnesses, prosecuting for the district in which the land is located. or defending the action or proceeding, or effecting settlement, and (ii) in any other (g) ''unmarketability of the title": an alleged or apparent matter affecting the lawful act which in the opinion of the Company may be necessary or desirable to title to the land, not excluded or excepted from coverage, which would entitle a establish the title to the estate or interest as insured, If the Company is prejudiced purchaser of· the estate or interest described in Schedule A to be released from the by the failure of the insured to furnish the required cooperation, the Company's obligations to the insured under the policy shall terminate, including any liability obligation to purchase by virtue of a contractual condition requiring the delivery or obligation to defend, prosecute, or continue any litigation, with regard to the of marketable title. 2. CONTINUATION OF INSURANCE AFTER CONVEYANCE OF TITLE matter or matters requiring such cooperation. The coverage of this policy shall continue in force as of Date of Policy in favor 5. PROOF OF LOSS OR DAMAGE of an insured only so long as the insured retains an estate or interest in the land, In addition to and after the notices required under Section 3 of these Conditions and Stipulations have been provided the Company, a proof of loss or damage signed or holds an indebtedness secured by a purchase money mortgage given by a pur- and sworn to by the insured claimant shall be furnished to the Company within chaser from the insured, or only so long as the insured shall have liability by reason 90 days after the insured claimant shall ascertain the facts giving rise to the loss of covenants of warranty made by the insured in any transfer or conveyance of or damage. The proof of loss or damage shall describe the defect in, or lien or the estate or interest. This policy shall not continue in force in favor of any pur- encumbrance on the title, or other matter insured against by this policy which con- chaser from the insured of either (i) an estate or interest in the land, or CiO an in- stitutes the basis of loss or damage and shall state, to the extent possible, the basis debtedness secured by a purchase money mortgage given to the insured. of calculating the amount of the loss or damage. If the Company is prejudiced by 3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT the failure of the insured claimant to provide the required proof of loss or damage, The insured shall notify the Company promptly in writing (i) in case of any litiga- the Company's obligations to the insured under the policy shall terminate, including tion as set forth in Section 4(a) below, (ii) in case knowledge shall come to an in- any liability or obligation to defend, prosecute, or continue any litigation, with regard sured hereunder of any claim of title or interest which is adverse to the title to the to the matter or matters requiring such proof of loss or damage. estate or interest, as insured, and which might cause loss or damage for which the In addition. the insured claimant may reagonably be required to submit to examina- Company may be liable by virtue of this policy, or (iii) if title to the estate or in- tion under oath by any authorized representative of the Company and shall produce terest, as insured, is rejected as unmarketable. If prompt notice shall not be given for examination, inspection and copying, at such reasonable times and places as to the Company, then as to the insured all liability of the Company shall terminate may be designated by any authorized representative of the Company, all records, with regard to the matter or matters for which prompt notice is required; provided, books, ledgers, checks, correspondence and memoranda, whether bearing a date however. that failure to notify the Company shall in no case prejudice the rights before or after Date of Policy, which reasonably pertain to the loss or damage. of any insured under this policy unless the Company shall be prejudiced by the Further, if requested by any authorized representative of the Company, the insured failure and then only to the extent of the prejudice. claimant shall grant its permission, in writing, for any authorized representative of the Company to examine, inspect and copy all records, books, ledgers, checks, 4. DEFENSE AND PROSECUTION OF ACTIONS; DUTY OF INSURED correspondence and memoranda in the custody or cc• trol of a third party, which CLAIMANT TO COOPERATE reasonably pertain to the loss or damage. All information designated as confidential (a) Upon written request by the insured and subject to the options contained in by the insured claimant provided to the Company pursuant to this Section shall not Section 6 of these Conditions and Stipulations, the Company, at its own cost and be disclosed to others unless, in the reasonable judgment of the Company, it is without unreasonable delay, shall provide for the defense of an insured in litigation necessary in the administration of the claim. Failure of the insured claimant to sub- in which any third party asserts a claim adverse to the title or interest as insured, mit for examination under oath, produce other reasonably requested information . but only as to those stated causes of action alleging a defect, lien or encumbrance or grant permission to secure reasonably necessary information from third parties or other'matter insured against by this policy. The Company shall have the right as required in the above paragraph shall terminate any liability of the Company to select counsel of its own choice (subject to the right of the insured to object for under this policy as to that claim.
-- 6. OFI1ONS TO PAY OR OTHERWISE SET'I'L~UMS; TERMINATION 11. LIABILITY NONCI~ATIVE OF LIABILITY ... It is expressly understo~ the amount of insurance under this policy shall In case of a claim under this policy, the Company shall have the following addi- be reduced by any amount the Company may pay under any policy insuring a mor- Ilonal options: tgage to which exception is taken in Schedule B or to which the insured has agreed, (a) To Pay or Tender Payment of the Amount of Insurance. assumed, or taken subject, or which is hereafter executed by an insured and which To pay or tender payment of the amount of insurance under this policy together A, and the amount so paid shall be deemed a payment under this policy to the is a charge or lien on the estate or interest described or referred to in Schedule with any costs, attorneys' fees and expenses incurred by the insured claimant, which insured owner. were authorized by the Company, up to the time of payment or tender of payment and which the Company is obligated to pay. 12. PAYMENT OF LOSS Upon the exercise by the Company of this option, all liability and obligations (a) No payment shall be made without producing this policy for endorsement of to the insured under this policy, other than to make the payment required, shall the payment unless the policy has been lost or destroyed, in which case proof of terminate, including any liability or obligation to defend, prosecute, or continue loss or destruction shall be furnished to the satisfaction of the Company any litigation, and the policy shall be surrendered to the Company for cancellation. (b) When liability and the extent of loss or damage has been definitely fixed in (b) To Pay or Otherwise Settle With Parties Other than the Insured accordance with these Conditions and Stipulations, the loss or damage shall be payable Or With the Insured Claimant. within 30 days thereafter. (i) to pay or otherwise settle with other parties for or in the name of an insured 13. SUBROGATION UPON PAYMENT OR SETTLEMENT claimant any claim insured against under this policy, together with any costs, at- (a) The Company's Right of Subrogation. torneys' fees and expenses incurred by the insured claimant which were authorized Whenever the Company shall have settled and paid a claim under this policy, by the Company up to the time of payment and which the Company is obligated all right of subrogation shall vest in the Company unaffected by any act of the in- to pay; or sured claimant. (ii) to pay or otherwise settle with the insured claimant the loss or damage pro- The Company shall be subrogated to and be entitled to al] rights and remedies vided for under this policy, together with any costs, attorneys' fees and which the insured claimant would have had against any person or property in respect expenses incurred by the insured claimant which were authorized by the Cornpany to the claim had this policy not been issued. If requested by the Company, the in- up to the time of payment and which the Company is obligated to pay. sured claimant shall transfer to the Company all rights and remedies against any Upon the exercise by the Company of either of the options provided for in paragraphs person or property necessary in order to perfect this right of subrogation. The in- (b)(i) or (ii), the Company's obligations to the insured under this policy for the sured claimant shall permit the Company to sue, compromise or settle in the name claimed loss or damage, other than the payments required to be made, shall ter- of the insured claimant and to use the name of the Insured claimant tri any transac- minate, including any liability or obligation to defend, prosecute or continue any tion or litigation involving these rights or remedies. litigation. If a payment on account of a claim does not fully cover the loss of the insured claimant, the Company shall be subrogated to these rights and remedies in the pro- 7. DETERMINATION, EXTENT OF LIABILITY AND COINSURANCE portion which the Company's payment bears to the whole amount of the loss. This policy is a contract of indemnity against actual monetary loss or damage If loss should result from any act of the insured claimant, as stated above, that sustained or incurred by the insured claimant who has suffered loss or damage by act shall not void this policy, but the Company, in that event. shall be required reason of matters insured against by this policy and only to the extent herein described. to pay only that part of any losses insured against by this policy which shall exceed (a) The liability of the Company under this policy shall not exceed the least of. the amount, if any, lost to the Company by reason of the impairment by the insured (i) the Amount of Insurance stated in Schedule A; or, claimant of the Company's right of subrogation. (ii) the difference between the value of the insured estate or interest as insured (b) The Company's Rights Against Non-insured Obligors. and the value of the insured estate or interest subject to the defect, lien or encum- The Company's right of subrogation against non-insured obligors shall exist and brance insured against by this policy. shall include, without limitation. the rights of the insured to indemnities, guaranties, (b) In the event the Amount of Insurance stated in Schedule A at the Date of other policies of insurance or bonds, notwithstanding any terms or conditions con- Policy is less than 80 percent of the value of the insured estate or interest or the tained in those instruments which provide for subrogation rights by reason of this full consideration paid for the estate or interest, whichever is less, or if subsequent policy. to the Date of Policy an improvement is erected on the land which increases the 14. ARBITRATION value of the insured estate or interest by at least 20 percent over the Amount of Insurance stated in Schedule A, then this Policy is subject to the following: Unless prohibited by applicable law, either the Company or the insured may de- (i) where no subsequent improvement has been made, as to any partial loss, mand arbitration pursuant to the Title Insurance Arbitration Rules of the American the Company shall only pay the loss pro rata in the proportion that the amount of Arbitration Association. Arbitrable matters may include, but are not limited to, any insurance at Date of Policy bears to the total value of the estate or interest at Date controversy or claim between the Company and the insured arising out of or relating of Policy; or to this policy, any service of the Company in connection with its issuance or the (ii) where a subsequent improverpent has been made, as to any partial loss, breach of a pobcy provision or other obligation. All arbitrable matters when the the Company shall only pay the loss pro rata in the proportion that 120 percent Amount of Insurance is $ 1,000,000 or less shall be arbitrated at the option of either of the Amount of Insurance stated in Schedule A bears to the sum of the Amount the Company or the insured. All arbitrable matters when the Amount of Insurance of Insurance stated in Schedule A and the amount expended for the improvement. is in excess of $1,000,000 shall be arbitrated only when agreed to by both the Com- The provisions of this paragraph shall not apply to costs, attorneys' fees and ex- pany and the insured. Arbitration pursuant to this policy and under the Rules in penses for which the Company is liable under this policy, and shall only apply to effect on the date the demand for arbitration is made or, at the option of the insured, thai portion of any loss which exceeds, in the aggregate, 10 percent of the Amount the Rules in effect at Date of Policy shall be binding upon the parties The award of Insurance stated in Schedule A. may include attorneys' fees only if the laws of the state in which the land is located (c) The Company will pay only those costs, attorneys' fees and expenses incurred permit a court to award attorneys' fees to a prevailing party. Judgment upon the in accordance with Section 4 of these Conditions and Stipulations. award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof 8. APPORTIONMENT The law of the situs of the land shall apply to an arbitration under the Title ln- If the land described in Schedule A consists of two or more parcels which are surance Arbitration Rules. not used as a single site, and a loss is established affecting one or more of the parcels A copy of the Rules may be obtained from the Company upon request. but not all, the loss shall be computed and settled on a pro rata basis as i f the amount of insurance under this policy was divided pro rata as to the value on Date of Policy 15. LIABUITY LIMITED TO THIS POLICY; POLICY ENTIRE CONTRACT of each separate parcel to the whole, exclusive of any improvements made subse- (a) This policy together with all endorsements, if any, attached hereto by the Com- quent to Date of Policy, unless a liability or value has otherwise been agreed upon pany is the entire policy and contract between the insured and the Company In as to each parcel by the Company and the insured at the time of the issuance of ]nterpreting any provision of this policy, this policy shall be construed as a whole. this policy and shown by an express statement or by an endorsement attached to .(b) Any claim of loss or damage, whether or not based on negligence, and which this policy. any action asserting such claim, shall be restricted to this policy. anses out of the status of the title to the estate or interest covered hereby or by 9. LIMITATION OF LIABILITY (c) No amendment of or endorsement to this policy can be made except by a (a) If the Company establishes the title, or removes the alleged defect, lien or writing endorsed hereon or attached hereto signed by either the President, a Vice encumbrance, or cures the lack of a right of access to or from the land, or cures President, the Secretary, an Assistant Secretary, or validating officer or authonzed the claim of unmarketability of title or otherwise establishes the lien of the insured signatory of the Company. mortgage, all as insured, in a reasonably diligent manner by any method, including litigation and the completion of any appeals therefrom, it shall have fully performed 16. SEVERABILITY its obligations with respect to that matter and shall not be liable for any loss or 1n the event any provision of the policy is held invalid or unenforceable under damage caused thereby. applicable law, the policy shall be deemed not to include that provision and all other (b) In the event of any litigation, including litigation by the Company or with provisions shall remain in full force and effect. the Company's consent, the Company shall have no liability for loss or damage 17. NOTICES, WHERE SENT until there has been a final determination by a court of competent jurisdiction, and All notices required to be given the Company and any statement in wnting re- disposition of all appeals therefrom, adverse to the title as insured. quired to be furnished the Company shall include the number of this policy and (c) The Company shall not be liable for loss or damage to any insured for liability shall be addressed to the Company at: voluntarily assumed by the insured in settling any claim or suit without the prior written consent of the Company. Fidelity National Title Insurance Company 10. REDUCTION OF INSURANCE; REDUCTION OR TERMINAMON OF National Claims Administhtion LIABILITY 17911 Von Karman Avenue, Suite 300 All payments under this policy, except payments made for costs, attorneys' fees Irvine, CA 92614-6253 and expenses, shall reduce the amount of the insurance pro tanto.
.. FIDELITY NATIONAL TITLE INSURANCE COMPANY ' 1/? Fidelity National Title Insurance Company 17911 Von Karman Avenue, Suite 300 Irvine, CA 92614-6253
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