HomeMy WebLinkAboutcoa.lu.su.Mikkelsen.50C-88
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i CASELOAD SUMMARY SHEET
city of Aspen
DATE RECEIVED: 11/16/88
DATE COMPLETE:
PARCEL ID AND CASE NO.
2737-073-27-002 50C-88
STAFF MEMBER:
PROJECT NAME:
Project Address:
Legal Address:
Mikkelsen - 700 East Main: PUD/Subdivision
700 East Main Street
East Aspen Addition Townsite
APPLICANT:
Applicant Address:
REPRESENTATIVE: Joe Edwards
Representative Address/Phone: 201 North Mill Steet
(303) 925-7116
Dorothv M. Mikkelsen
Suite 109
PAID:
YES
NO
AMOUNT :
$1.020.00
TYPE OF APPLICATION:
1 STEP:
x
2 STEP:
P&Z Meeting Date
PUBLIC HEARING: YES
NO
VESTED RIGHTS:
YES
NO
CC Meeting Date
PUBLIC HEARING: YES
NO
VESTED RIGHTS:
YES
NO
Planning Director Approval:
Insubstantial Amendment or Exemption:
Paid:
Date:
REFERRALS:
City Attorney
City Engineer
Housing Dir.
Aspen Water
City Electric
Envir. Hlth.
Aspen Consolo
S.D.
Mtn. Bell
Parks Dept.
Holy Cross
Fire Marshall
Building Inspector
Roaring Fork
Energy Center
School District
Rocky Mtn Nat Gas
State Hwy Dept(GW)
State Hwy Dept(GJ)
Other
DATE REFERRED:
INITIALS:
DATE ROUTED:~INITIAL: f'JA~
FINAL ROUTING:
--- City Atty ____ City Engineer ___ Zoning
___ Housing Other:
Env. Health
FILE STATUS AND LOCATION:
,.....,.
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DEC-7
LAW OFFICES
JOSEPH E.EDWARDS, JR.
THE. .;e:A.OME PROFESSIONAL BUILDING
SUITE 109,2.01 NORTH MILL STREET
ASPEN, COLORADO 81ell
,JOSEPH E. EDWARDS, ..JR.
,JOSEPH E. EDWARDS, III
TELEPHONE (303) 925-7116
December 2, 1988
Jim Gibbord
Aspen Engineering Department
130 South Galena Street
Aspen, Colorado 81611
Re: 700 East Main Final Plat
Dear Jim:
This letter is to confirm our telephone conversation on
November 30, 1988, during which we reviewed the letter
dated April 27 from Rea, Cassens & Associates, Inc.,
contained in the land use application file and the attached
calculations. That letter noted that the calculations
included with that letter were the calculations to be
included with the final plat submission. The letter
further noted that, in final design development, there may
be some minor changes to the run off and that final
calculations were to be prepared prior to construction.
The letter stated that they had over designed the system by
approximately 25% in order to absorb any changes within
that range in the actual final design run-off plan.
After reviewing these matters, you indicated that it was
satisfactory with the Engineering Department to proceed to
final plat based on the calculations tendered with the
April 27, 1988, letter already contained in the application
file and that we add a condition to the final PUD
Subdivision Agreement to require that, after final design
was complete and prior to the issuance of any building
permit, final calculations would be done and submitted to
the Engineering Department prior to issuance of any
building permits.
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Enclosure
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MEMORANDUM
TO: Fred Gannett, City Attorney
FROM: Jim Gibbard, Engineering Department ~
DATE: December 1, 1988
RE: 700 E. Main Final Plat
=======================================================
The calculations which will quantify the historic ground water
recharge rate for the above project will not be required by the
Engineering Department for Final Plat submission. These calcula-
tions will, however, be required before a building permit is
issued for this project. For use in the preparation of these
calculations, we will also require that there be sufficient data
from this site which is acquired during the peak of the high
runoff period.
jg/700Main6
cc: Jay Hammond
Chuck Roth
Cindy Houben
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303~925:2020
November 30, 1988
Joseph E. Edwards, Jr., Esq.
201 North Mill street, #109
Aspen, Colorado 81611
Re: Amendments to PUD/Subdivision Agreement for 700 East Main
Dear Joe:
Enclosed are comments and requests for changes to the PUD/Sub-
division Agreement for 700 East Main. In order to make the
process as simple as possible, I have followed your paragraph
numbering and topical heading with accompanying comments.
Paqe 1
1. "Project": In the first paragraph, immediately after the'
two four-bedroom units, delete the word "and" and insert the
following words: "a recreational building", to be followed by
underground parking.
Paqe 2
At the top of the page in which you indicate the square footage
for the project, you have 60.016. You may want to double check
that figure; it should probably be 60,016.
Paragraph 2, "Final Plat": With respect to Pages 1-3 submitted
as part of the application, you will have to amend those docu-
ments in compliance with the comments of Cindy Houben in a
separate letter.
Paragraph 3, "Construction Schedule", subparagraph (d). In the
clause immediately after December 31, 1989, please delete the
words "as soon as possible".
Paragraph 4, "Landscaping". With respect to all landscaping "
issues, there needs to be, as part of the final plat submission,
a landscaping plan.
In the second sentence, same paragraph, immediately after the
words "landscaping shall be installed", please delete the words
"as soon as feasible".
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Letter to Joseph E. Edwards, Jr., Esq.
November 30, 1988
Page 2
Paqe 3
Paragraph 5 "Public Improvements", subparagraph (a). At the
conclusion of the first sentence, which ends as follows: "filed
with the project PUD/Subdivision application", please insert
immediately after the word "application", the fOllowing words:
"and as shown on the final plat." The same words should be added
to the third sentence in the same paragraph, and these items must
be shown on the final plat.
With respect to subparagraph (b), "Water Lines". This section
too will need to be reflected on the final plat; please see Cindy
Houben's letter with respect to needed changes.
Paqe 4
Subparagraph (f), "Security for Public Improvements". Please add
the terlll "financial assurances" in front of your heading so as to
read as follows: "(f) Financial Assurances: Security for Public
Imorovements and Landscaoing." .
With respect to the language in Paragraph (g), I am unhappy with
the manner in which it reads. I would prefer to substitute,
verbatim, the language contained in the document prepared by
Marti Pickett. That language was standardized in the course of
three or four PUD applications, and, to the extent that it
represents a balancing of developer and city issues, I prefer to
see it used. However, if you choose not to use that language,
would you please insert somewhere in the context of this para-
graph, a requirement that all improvements be inspected and
approved by the City Engineer, and that Upon such inspection and
approval, that funds, up to ninety percent of the financial
assurance, excepting landscaping, may be released by the City
Engineer in proportion to the completed work.
Subparagraph (g), "Electrical Transformers". Please delete the
word "northerly" in the beginning of the sentence and substitute,
after the clause "near the vacated alley", the following words,
"as described hereinbelow."
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Letter to Joseph E. Edwards, Jr., Esq.
November 30, 1988
Page 3
Paqe 5
Paragraph 5, "Site Drainage. Please see notes from Jim Gibbard
of the Engineering Department with relation to this section. The
site drainage needs to be reflected on the final plat in a manner
acceptable to the Engineering Department.
Paragraph 8, "Employee Housing Requirements". Please insert
after the words "(initially $360.00 per month) or sale guide-
lines" the words "as currently defined or hereinafter amended by
the Aspen/Pitkin Housing Authority".
Paqe 6
In the first paragraph at the top of the page, please insert
after "$685,000"00 to be paid", the words "in a lump sum".
Paragraph 9, "Park Dedication", paragraph (d), please insert
after the words "these fees shall be paid 'in a lump sum' prior
to the issuance of 'any' building pernlits for the project."
Paragraph 10, "Condominiumization". In the twelfth line at the
end of the sentence after the, words "incorporation and bylaws"
add "prior to the sale or transfer of any unit".
Paqe 7
Paragraph 12, "Representations", after the words "all representa-
tions" please insert the following words "included, but not
limited to, those materials, plans, reports received by the City
of Aspen in furtherance of this application and filed by the
City to preserve those representations made on the records during
the course of this application process".
Paragraph 13, "Maximum Floor Area". Please add at the end of the
sentence, "as calculated under the FAR calculation process in
effect on June 13, 1988".
Paragraph 14, "Variance". Change the heading to "Variations",
and make a similar substitution in the body of the paragraph.
.
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Letter to Joseph E. Edwards, Jr., Esq.
November 30, 1988
Page 4
Paqe 8
Add as a new Paragraph 21, "Acceptance of Plat, Ratification by
Owner". Insert the plat language which reflects the incorpora-
tion by reference of all materials received by the city in the
course of the application process and recorded in the Pitkin
County Clerk and Recorder'S office to preserve those representa-
tions.
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130 so '\
aspen
Ding Office
November 28, 1988
Joe Edwards
201 N. Mill street, Suite 109
Aspen, Colorado 81611
Dear Joe,
After review of the 700 East Main Final Plat Submission, the
Engineering Department and Planning Office have found that the
following areas of the sUbmission are deficient and must be
corrected prior to recordation of the plat.
Please refer to pages 7-78 through 7-80 of the Land Use Code to
see that the following additional items are required to be
included on the final plat.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
The
The
Need Mylar copies of Sheets 1-3, 2-3, 3-3.
#2(a) (1) (a) - streets and setbacks.
#2 (a) (1) (c)
#2(a) (1) (d) -show areas dedicated to public use ie.
Riverside Park (including benches and rocks) and the benches
on the corner of Spring and Main.
#2 (a) (1) (e)
#2(a) (3)
#2(a)(5) - Planning Director signature.
#2(a)(8) - also include 2nd area of Riverbank stabilization.
#2 (a) (9)
#2 (a) (10), ,
#2 (a)( 121, - r:r:uf. GtrrvliltH f}ldj~~ .w! a.. (df;...., M.~~-Io
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supplemental mylar sheets must be on one sheet (not taped).
Clerk's office will not accept a taped myler.
If you any questions, please call. As you know the deadline for
recordation is December 19, 1988.
Sincerely,
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Cindy Houben,
Planner
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LAW OFFICES
GIDEON I. KAUFMAN
A .PROFESSIONAL CORPORAnON
BOX 10001
315 EAST HYMAN AVENUE, SUITE 305
ASPEN, COLORADO S1Eill
TELEPHONE
AREA CODE 303
925-8166
TELEFAX 925-1090
GIDEON I. KAUFMAN
MARTHA C. PICKETT
November 22, 1988
HAND-DELIVERED
.'22198B
Ms. Cindy Houben, City Planner
Mr. Fred Gannett, City Attorney
Aspen/Pitkin County Planning Office
130 South Galena street
Aspen, Colorado 81611
Re: 700 East Main Project
Dear Cindy and Fred:
On Friday, November 18, 1988, I attempted to place Fine
Associates' copyright notice on the Final Plat documents which are
on file in the Aspen City offices, as well as on the form of Planned
Unit Development/Subdivision Agreement for PUD/SUbdivision at 700
East Main which is also on file in the Aspen City offices. As you
are aware, I was prevented from doing so by representatives of the
City.
Fine Associates hereby demands that the City place, or allow
Fine Associates to place, the notice " @ 1988 Fine Associates" on
all Final Plat documents, and on all drafts of the Subdivision
Agreement which are on file or otherwise in the possession of the
City or its agents and employees. Fine Associates is required by
the Copyright Act of 1976 to put this notice on the above-referenced
documents and Agreement in order to secure all the protections of
that Act. The refusal of the City of Aspen to'permit Fine
Associates to do so may impair Fine Associates' ability to enforce
its copyright and its ability to collect monetary damages for any
infringement. Fine Associates reserves all rights and claims it may
have against the City of Aspen arising out of the City's refusal to
permit the copyright notice to be placed on the above-referenced
documents and Agreement.
Sincerely,
LAW OFFICES OF GIDEON I. KAUFMAN, P.C.,
a Professional ~orporation
By
MCP/bw
cc: Paul Taddune
cc: Bob Kueppers
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Final Draft: 4/25/88
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electricity, telephones, sanitary
sewer, water, and fire protection
facilities stating they can service
the proposed subdivision.
2. Review bv city council.
a. Additional application contents prior to
review bv citv Council. Subsequent to review
by the commission and prior to review of the
Development Application for Plat by the city
council, the applicant shall submit the
following additional application contents.
(1) A Final Plat drawn with permanent ink on
reproducible linen or mylar. Sheet size
shall be twenty-four (24") inches by
thirty-six (36") inches with an unencum-
bered margin of one and one-half (1!")
inches on the left hand side of the
sheet and a one-half inch margin around
the other three (3) sides of the sheet.
It shall include:
~ (a)
Accurate dimensions for all lines,
angles and curves used to describe
boundaries, streets, setbacks,
alleys, easements, structures,
areas to be reserved or dedicated
for public or common use and other
important features. All curves
shall be circular arcs and shall be
defined by the radius, central
angle, tangent, arc and chord
distances. All dimensions, both
linear and angular, are to be
determined by an accurate control
survey in the field which must
balance and close within a limit of
one (1) in ten thousand (10,000).
(b) A systematic identification of all
lots and blocks and names for all
streets.
>- (c)
Names of all adjoining subdivisions
with dotted lines of abutting lots.
If adjoining land is unplatted, it
shall be shown as such.
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-7 (d) An identification of the streets, .
7 -78
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Final Draft: 4/25/88
alleys, parks, and other public
areas or facilities, and a dedica-
tion thereof to the public use. An
identification of the easements as
dedicated to public use. Areas
reserved for future public acquisi-
tion shall also be shown.
) (e)
A written survey description of the
area including the total acreage to
the nearest one-thousandth (0.001)
of an acre.
(f) A description of all survey
monuments, both found and set,
which mark the boundaries of the
subdivision, and description of all
monuments used in conducting the
survey. The Colorado Coordinate
System may be used.
(2)
A statement
explaining how
determined.
by the land surveyor
bearings, if used, were
.
') (3) A certificate by the ,registered land
surveyor as to the accuracy of the
survey and plat, and a statement that
the survey was performed in accordance
- ;>with Colorado__~~vi~~g__SJ:;g.tui:.e.s- 1973,
Title 38, Article 51, as amended from
time to time.
(4) A certificate by a corporate title
insurer, that the person or persons
dedicating to the public the public
rights-of-way, areas or facilities as
shown thereon are the owners thereof in
fee simple, free and' clear of all liens
and encumbrances.
-7 (5)
Certificates showing approval of the
Final Plat by the City Engineer,
~lanning Director and the Commission.
(6)
A certificate showing approval of the
plat and acceptance of dedications and
easements by the City Council, with
signature by the Mayor and attestation
by the City Clerk.
.
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Final Draft: 4/25/88
(7)
A certificate of filing for the Pitkin
County Clerk and Recorder.
.
"'" ~ Complete engineering plans and specifi-
/ ~ cations for all improvements to be
rfI i>5 H installed in the proposed subdivision,
, () ~ including but not limited to water and
" _ ~.JJ:::1;'~-, sewer utilities, streets and :r;elated_
~.r..J.~ .iJnp:oveme~ts,_ trails, bridges and storm
,p~' , ...~.,' fV>--" draJ.nage J.mprovements., , '17\
,,)'vU;:~p,J ./'- ~ ~ ~ 1'tJ, ~(),w, qn~ f'~-(a.n InNr.J('~~
tlr vJ': \y' C"'. ' ~ P (9) A landscape plan show:mg 10catJ.on, sJ.ze,
*~/\ /' and type of proposed landscape features.
(11) Any agreements with utility or ditch
companies, when applicable.
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(12) Any subdivision agreements C;S required
by Sec. 7-1004 (C) (3).
.
b.
Submission of Development Application to
city Council. The Development Application
shall be submitted to the City Council for
final review. The Development Application
for Plat shall be approved or approved with
conditions by the City Council if it conforms
to the standards of Section 7-1004(c), or it
shall be denied.
Sec. 7-1006.
Subdivision Aqreement.
A. General. Prior to approval of Plat for a subdivision,
the applicant and City Council shall enter into a
Subdivision Agreement binding the sUbdivision to any
,conditions placed on the development order.
B. Common Park and Recreation Areas. The Subdivision
Agreement shall outline any agreement on the part of
the applicant," to deed public lands, open space, public
facilities, and, other improvements to the City or other
entity.
C.
Landscape Guarantee. In order to ensure implementation
and maintenance of the landscape plan, the City Council
may require the applicant to provide a guarantee for no
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LAW OFFICES
.JOSEPH E. EDWARDS, .JR.
THE .JEROME PROFESSIONAL. BUILDING
SUITE 109,201 NORTH MIL.L STREET
ASPE.N, COL~RAOO BU511
....OSEPH E. EOWARDS, ,JR.
.JOSEPH E. EDWARDS, III
TELEPHONE (303) 925-7116
November 15, 1988
Fred Gannett
City of Aspen
130 South Galena Street
Aspen, Colorado 81611
NOV' 6 1988
Cindy Houben
City of Aspen
130 South Galena Street
Aspen, Colorado 81611
Re: Mikkelsen/700 East Main; PUD/Subdivision
Dear Fred and Cindy:
I am enclosing four copies of a revised PUD/Subdivision
Agreement, dedication of the employee housing unit and
Encroachment License for the regrading in the right of way
north of Main Street and south of the project. I have
reviewed the Planning Office conceptual, preliminary and
final plan approval files and all the notes, referral
comments, minutes, etc., and have incorporated all of the
conditions and requirements I was able to locate into this
revised agreement. You can discard the earlier draft I
sent last week, as it needed some significant additions.
Also enclosed is a copy of the first three pages of the
proposed plat. We are submitting this approximately one
month in advance of the date that these documents need to
be placed of record in order to allow sufficient time for
the City and its staff to adequately review these
documents. After review, if you have any required changes,
please let us know; and we will immediately incorporate
those changes into our final documents and obtain the
signatures of the various owners and submit it to you. We
are enclosing a fee for the review of those final
documents.
Very truly yours,
JE ch L2/16
Enclosures
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EMPLOYEE HOUSING DEDICATION
FOR UNIT 18, SUBDIVISION AT 700 EAST MAIN STREET
THIS DEDICATION made , 1988, by DOROTHY
MIKKELSEN, ARDITH WARE, ALICE GALLEGOS MIKKELSEN, and
ALBERT W. BEVAN, JR. (hereinafter Owners) and the CITY OF
ASPEN, Colorado (hereinafter City) .
1. Owners hold title to the following real property:
A parcel of land situated in the S. E. 1/4 S.W. 1/4 of
Section 7, Township 10 SOuth, Range 84 West of the Sixth
Principal Meridian, East Aspen Additional Townsite, Pitkin
County, Colorado, more fully described as follows:
Beginning at the N.W. Corner of Block 21, East Aspen
Additional Townsite; Thence S 75009'11" E 150.00 feet along
the North line of said Block 21; Thence departing said line
S 59018'00" E 56.37 feet; Thence S 50014'11" E 118.32 feet;
Thence S 52057'39" W 47.02 feet; Thence S 4~058'47" W 21.71
feet to a point on the East line of said Block 21; Thence S
14050'49" W 100.00 feet along the East line of said Block 21
to the Southeast corner of said Block 21; Thence N 75009'11"
W 2.31 feet along the South line of said Block 21; Thence
62.88 feet along a curve to the right having a radius of
868.51 feet (the chord of which bears S 10018'25" E 62.87
feet); Thence 145.72 feet along a curve to the left having a
radius of 176.18 feet (the chord of which bears N 51027'27"
W 141.60 feet); Thence N 75009'11" W 164.75 feet along the
South line of said Block 21 to the Southwest corner of said
Block 21; Thence N 14050'49" E 220.00 feet along the West
line of said Block 21 to the point of beginning, containing
60.016 square feet, more or less.
2. The Owners covenant and agree that the use and
occupancy of Condominium Unit 18, to be constructed as part
of the P.U.D. Subdivision at 700 East Main Street, shall be
restricted to City of Aspen "low-income" employee housing
occupancy and rental guidelines and qualifications as in
effect from time to time. Owners shall have the right to
select rental occupants and may give first priority to an
employee or caretaker of the Project. Owners may sell or
rent Unit 18 to the Condominium Homeowners' Association or
an employee of the Project without the purchaser or renter
needing to comply with the income and assets limitations of
the low-income guidelines.
3. This dedication shall be a burden on and shall run
wi th the title to Unit 18 and be binding on the Owners,
their successors and assigns, to the benefit of and
enforceable by the City of Aspen by legal action including
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6. This encroachment license may be terminated by the
City on 30 days' written notice in the event it determines
that the use of this right of way is necessary for public
purposes and that the regrading authorized by this license
is incompatible with the necessary public purpose. The
Owners may terminate the encroachment agreement on 30 days'
written notice.
7. Any regrading of such right of way within 16 feet
north of the curb line of Main Street shall not change the
elevation of the right of way more than one foot. Beyond
the 16-foot area, the Owners may construct a berm at the
southeast edge of the project and may thereafter regrade
within the right of way to slope downward towards the
project boundary.
8. The
maintenance of
good, safe and
Owners shall be responsible for the
the area of encroachment easement area in a
satisfactory condition.
9. Owners shall carry public liability insurance on
the right of way belonging to the City north of the Main
Street curb line and south of the project boundary for the
benefit of the City with limits specified in S 24-10-114,
C.R.S., as it may be amended from time to time, naming the
City as a coinsured and further providing that such policy
shall not be terminable as to the City without 30 days'
advance written notice by certified mail to the City and
shall provide to City copies of the current policy in effect
from time to time and a certificate evidencing that such
policy is in force and effect at all times during the term
of this license.
10. The Owners shall hold the City harmless from any
and all claims for damages, costs and expenses to any
persons or property resulting from the regrading, occupancy
or maintenance by Owners of the area of the right of way
covered by this encroachment license.
11. In the event of termination of this agreement by
either party, the Owners shall, at their expense, restore
the licensed right-of-way property to a condition and grade
within one foot of the grade existing at the time of the
execution of this agreement or such other grade as may then
be satisfactory to the City; and it shall be the
responsibility of the Owners to install whatever retaining
wall or other structure may be necessary to satisfactorily
support the right of way at such restored grade.
12. The obligations of the Owners under this license
may be assigned to a condominium homeowners' association on
the creation of a condominium for the project, in which
event the obligations of the Owners shall be assumed by such
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association and the Owners shall be released from these
obligations.
13. In the event of any legal proceedings to enforce
the provisions of this agreement, the prevailing party shall
be entitled to attorney fees and costs.
Attest:
KATHRYN KOCH, City Clerk
Approved as to form:
City Attorney
DOROTHY M. MIKKELSEN
ALICE GALLEGOS MIKKELSEN
Dll/12
CITY OF ASPEN
WILLIAM L. STIRLING, Mayor
ARDITH LOUISE WARE
ALBERT W. BEVAN, JR.
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LAW OFFICES
JOSEPH E. EDWARDS, JR.
THE ..JEROME PROF"ESSIONAL. BUILDING
SUITE 109,201 NORTH MILL STREET
ASPEN, COLORADO Bleil
,JOSEPH E. EDWARDS, ..JR.
.JOSEPH E. EDWARDS, Itl
TELEPHONE (303) 925-7116
November 9, 1988
Cindy Houben
Planning Office
City of Aspen
130 South Galena
Aspen, Colorado 81611
Fred Gannett
City Attorney
City of Aspen
130 South Galena
Aspen, Colorado 81611
NOV-9
Re: 700 East Main Street, Mikkelson Property Project
Dear Cindy and Fred::
For your reference, I am enclosing a copy of the short form
option agreement to Fine Associates which was recorded in
Book 546 at Page 919 and again on Page 921, and a letter
from Martha Pickett and my response letter.
You will note from the face of the document by adding up
the period of the option, the one ninety-day extension
allowed and the sixty days within which to close, that this
option expired by its terms on August 20, 1988. That
expiration is further evidenced by the letter from Martha
C. Pickett, the attorney for Fine Associates, dated
September 14, 1988, which acknowledges Fine Associates'
default and transmitted Ms. Mikkelson's share of liquidated
damages due upon the default of Fine Associates. My letter
acknowledged receipt of the liquidated damages payment due
upon Fine's default. These letters were recorded at Book
577 at Page 627 and 628, which evidence the expiration of
the option of record.
Therefore, it is the position of the property owners, Ms.
Mikkelson and her sisters Ardith Ware and Alice Gallegos
Mikkelson, that Fine Associates no longer has any legal or
equitable interest in the property at 700 East Main Street.
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Cindy Houben
Fred Gannett
November 9, 1988
Page 2
For the reasons set forth in the memorandum from the City
Attorney to City Council dated September 21, 1988, we agree
that the land use approvals, although applied for by the
then option holder, Fine, revert to the owner of the
property as an appurtenant to the land, and these land use
approvals are now the exclusive property of the owners.
Furthermore, it is our position that there has been a
limited waiver of any copyright associated with any
drawings or documents that were filed with the Planning
Department as part of the land use approval so long as the
use of such documents is limited to the purposes of the
land use application and approval for which they are filed.
There had been a requirement in one of the Planning Office
memos that a mortgagee clause be added to the face of the
Plat. I am enclosing a most recent copy of the title
insurance commitment on this property which was issued
November 1, 1988. You will note from paragraph 3, page 1,
that there is no deed of trust of record, which is also
reflected in Schedule B, Section 1 of the Requirements and
therefore no need for a mortgagee clause. If you have any
questions regarding any of the foregoing, feel free to
contact me.
Very truly yo~rs,
cc: John Kelly
Joe Rader
Dorothy Mikkelson
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LAW OFFICES
JOSEPH E. EDWARDS, JR,
THE ,JEROME PROF-ESSIONAL BUIL.DING
SUITE 109,201 NORTH MILL. STREET
ASPEN, COLORADO erell
,JOSEPH E. EDWARDS, .JR.
,JOSEPH E. EDWARDS, III
TELEPHONE (303) 925.7116
November 9, 1988
Glenn Horn
Pitkin County Planning Office
130 South Galena Street
Aspen, Colorado 81611
Re: Godfrey--Landis, Subdivision Exemption
Dear Glenn:
We previously tendered the mylar plat of the Godfrey Landis
Subdivision Exemption for the boundary line adjustment
between their respective parcels and you returned the plat
to me requesting that the following be added:
A. A reference that the Plat is approved in
accordance with Resolution 87-92.
B. Certificate of Dedication and ownership language
above the signatures of the owners as shown in
the appendix to the Land Use Code.
C. A signature line for the lienholders.
I have added all three of those provisions to the Plat and
obtained the signature of the Vice-President of Aspen
Savings & Loan which holds the only lien on these
properties and which is a lien only against the Landis
parcel. Mr. Godfrey holds his title free and clear.
Therefore, I am resubmitting the Plat to the Planning
Office for final review and thereafter for circulation to
the Board of County Commissioners for their signatures and
for the Clerk and Recorder's signature and recording.
...
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Glenn Horn
November 9, 1988
Page 2
,-.
Joanna indicated she still has our check to pay for the
recording of this Plat.
Very truly yours,
--c:-
ras~J2w-Gc(
cc: Peter E. Godfrey
B. Joseph Krabacher
Frederick Gannett
Cindy Houben
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LAW OFFICES
JOSEPH E. EDWARDS, JR.
THE .JEROME PROFESSIONAL BUILelNO
SUIT!!. IQQ, 201 NORTH MILL STREET
ASPEN, COLORADO Bleil
.JOSEPH E. EDWARDS, .JR.
.JOSEPH E. EDWARDS, III
TELEPHONE {3031 92!!5-'71l6
September 19, 1988
Martha C. Pickett
Law Offices of Gideon I. KaUfman, P.C.
315 East Hyman Avenue, Suite 305
Aspen, Colorado 81611
Re: Mikkelsen Property Sale
Dear Ms. Pickett:
I acknOWledge the receipt of Dorothy Mikkelsen's share of
the liquidated damages owed to her pursuant to paragraph 21
of the Option Agreement between Fine Associates and Dorothy
Mikkelsen, which was payable upon the default of Fine.
I have not returned your form since there was no obligation
under that contract for Ms. Mikkelsen to release present or
future claims that she may have under the Option Agreement.
Very truly ~:s,
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JEE-kl L/35
cc: Dorothy M. Mikkelsen
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NOV-8
l.AW OFFICES
GIDEON I. KAUFMAN
A PROFESSIONAL CORPORATION
BOX 10001
315 EAST HYMAN AVENUE, SUITE 305
Sept'e"nibC~f:ORi~O, 8''Y988
TELEPHONE
AREA CODE 303
925-8166
TELEFAX 925'1090
GIDEON I. KAUFMAN
MARTHA C. PICKETT
Mr. Joe Edwards
210 N. Mill street
Aspen, Colorado 81611
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Re: Option Agreement between Fine Associates and
Dorothy Mikkelson
Dear Joe:
Pursuant to paragraph 21 of the above-referenced Option
and your ,letter dated September 9, 1988, please find
check' e amount of $8,333.33, payable to Dorothy
. to
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Your signature below acknowledges receipt of the liquidated
damages, and represents that Fine Associates' payment of the
$8,333.33 represents Fine Associates' full obligation under the
Option Agreement. Your signature below further represents that, by
accepting the liquidated damages, your client releases any and all
claims she may have, now or in the future, against Fine Associates
in relation to the Option Agreement dated September 25, 1987.
Please sign and return the enclosed copy of this letter to my office
as soon as possible.
Personally, and on behalf of Fine Associates, I would like to
thank you for your continued cooperation throughout negotiations on
the transaction between Ms. Mikkelsen and Fine Associates.
Sincerely,
LAW OFFICES OF
a Professional
GIDEON I. KAUFMAN,
c~r, pf"rati,on
fA
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Piickett
P.C. ,
BY~MAP~
artha C
ACCEPTED AND AGREED TO this
day of September, 1988.
MCP/bw
Enclosure
cc: Fine Associates
Joseph Edwards, on behalf of
Dorothy Mikkelsen
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SHORT FORM OF OPTION
THIS SHORT FORM OF OPTION is made this fff r:A day of
September , 1987, by and between ARDITH WAR , DOROTHY M.
MIKKELSEN, AND ALICE J. MIKKELSEN (collectively "Optionor"), and
FINE ASSOCIATES, a Minnesota general partnership ("Optionee"),
jointly called the .Parties".
1. Grant of Option. For and in consideration of
$ 37.500.00 paid by Optionee, the receipt and sufficiency of
which is hereby acknowledged by Optionor, Optionor grants to
Optionee an exclusive option to purchase ("Option") the real
property and improvements thereon ("Property") described as
follows:
See EXHIBIT A attached hereto and by this
reference incorporated herein.
2. The term of the Option is from the date hereof to
11: 00 p.m., Barch 23 I 1988, sub:Ject to one 90-day
extension, with closing of the sale and purchase of the Property
to occur no later than sixty (60) days after exercise of' the
Option.
3. The Parties have entered into an Option Agreement dated
Seotember 25 , 1987 ("Option Agreement") which contains
additional agreements of the Parties regarding the Property.
This Short FOrm of Option is not a complete summary of the Option
Agreement provisions and this ShOrt Form shall not be used for
interpretation or construction of any provisions of the Option
Agreement. In the event of any differences between this Short
Form of Option Agreement and the Option Agreement, the Option
shall control.
4. The rights and obligations of the Parties under the
Option Agreement and this Short Form of Option Agreement are
binding upon and shall inure to the benefit of the Parties, their
heirs, successors and assigns.
5. Addresses of the Parties are:
Optionor:
Ardith Ware and Dorothy M.
Mikkelsen
c/o John Doremus
Carol Ann Jacobson Realty, Inc.
606 East Hyman Avenue
Aspen, Colorado 81611
Alice Mikkelsen
c/-o Joe Rader, Esq.
1050 Walnut Street
Suite 401
Boulder, Colorado 80302
Optionee:
Fine Associates
1916 IDS Center
Minneapolis, Minnesota 55402
Attn: William I. Fine
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IN WITNESS WHEREOF the Parties have executed and delivered
this Short FOrm of Option on the dates indicated in the
acknowledgements set forth below.
OPTIONOR:
ARDITH WARE
DOROTHY M. MIKKELSEN
ALICE J. MIKKELSEN, formerly known
as Alice J. Gallegos
OPTIONEE:
FINE ASSOCIATES, a Minnesota
general partnership
'yON ~i'~7
T~l~ : I?.-.
STATE OF
)
) ss.
)
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1987 by ARDITH WARE.
Witness my hand and official seal.
My commission expires:
Notary Public
STATE OF
)
) ss.
)
COUNTY OF
/
The foregoing instrument was acknowledged before me this
day of I 1987 by DOROTHY M. MIKKELSEN.
Witness my hand and official seal.
My commission expires:
.
Notary PUblic
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_'0The following are the
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t_ "'ITEM (a) Payment to or for the account of the grantors or mortgagors
the full consideration for the estate or interest to be insured:
ITEM (b) Proper instrument(s) creating the estate or interest to be
insured must be executed and duly filed for record to-wit:
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, NATIONAL HEADQUARTERS
I RICHMOND, VIRGINIA
SCHEDULE B-SECTION, 1
REQUIREMENTS i
requirements to be complied
with:
of
,1. Deed from: Dorothy Marie Mikkelsen, Ardith Louise Ware, Alice
Juanita Gallegos and Albert W_ Bevan, Jr.
to
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2! Trad Nametfi~av t o~artnersh p Ai:5r em~n of Fine Assv2a es,
dis losing he na es of the part ers, nd t other info mat ~
r uired b '73 RS 7- 1-101 (1 (1) e iden 1ng the exi enc of said
P rtnershi pri r to ts acqui ition of ti le to said and ~er in.
3: Evidence satisfactory that the Real Estate Transfer Tax as
"!,established by Ordinance No. 20 (series of 1979) has been paid or
exempted: "
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4. Certificate of nonforeign status executed by the transferors.
,
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,5. Certificate from a Registered Colorado Land Surveyor certifying
the legal description contained herein is fhe same property as
conveyed to Dorothy Marie Mikkelsen, Ardit~ouise Ware, Alice
Juanita Gallegos and Albert W. Bevan.
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that
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'\A:andi8J~re attached.
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Schedule B-Section 1 Pg. '1
Commitment No. PCT-1232 C4
h.lllRllIlll'il.l'llllrW{'l.[~.I(l.m.llml.'ll[mDIIMlIIIIIl!lIfI[n!lllalnnIIUlIIIIMl.~1_1I1l~IlI~Jl'.l\IlnN\ll,II_.U""U'OII.'",",,".,~_.
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1', 'A 'pi!lrcel ,llof," li!lnd' situi!lted lin the SE1/4 SW1/4 of Section 7, Township 10
. .':' , .1 " .. . I ' I, ~
,:~' !iSouth,{, Ri!lnge: 84' West of ,the 6th P.M., Ei!lst Aspen Additioni!ll Townsite,'
' . ;' ,,:,' ~ : ~ : i ' I
'1!:Pil,t;~lhjC~untyl,Colorado, more fully described as follows:
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'I 8eg1nning at the NWGorner of 810ck 21, East Aspen Addiiioni!ll Townsite;
t/;lence Si75'09'lli E 150.00 feet along the North line of Si!lid 810ck 21;
" thence departing si!lid line S 59'18'00" E 56.37 feet;
',thence S{I:50'14'11~ E 118.32 feet;
thence S 52.57'39. W 47.02 feet;
~hence S 4~.58'47" W 21.17 feet to i!l point on the Ei!lst line of Si!lid
Block 21; I
, thence S 14.50'49" W 100.00 feet i!llong the Ei!lst line of Si!lid Slock 21
"I to the Southei!lst cornel" of si!lid Block 21:
'thence Ni75"09'll',' W 2.31 feet along the South line of si!lid Slock 21;
thence 62.88 feet i!llong i!l curve to the right hi!lving i!l ri!ldius of 868.51
feet (the chord of which bei!lrs S 10.18'25" E 62.87 feet);
thence 14S.72 feet i!llong i!l curve to the left hi!lving a radius of 176.18
feet (the chord of which bears N 51.27'27" W 141.60 feet);
thence N 7S.d)'11" W 164.75 feet along the South line of si!lid Block 21
to the Southwest cornel" of si!lid Block 21;
,.thence N 14.50'49" E 220.00 feet i!llong the West line of said Block 21
to the point of beginning.
tlithiYers litlf}
Insurance @porat~on
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NATIONAL HEADQUARTERS
i , ~ICHMOND. VIRGINIA
I', te~AL,DESCR~PTION
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Portions of the i!lbove described property formerly described i!lS:
Lots 1, 2, 3, 4 & 5, Block 21, East Aspen Additional Townsite i!lnd Lots
A, B, C, D & E, Block 21, East Aspen Additional Townsite
COUNTY OF PITKIN, STATE OF COLORADO.
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: I ' I NATIONAL HEADQUARTERS
I RICHMOND, VIRGINIA
";' , COMMITMENT FOR TITLE INSURANCE
: ' SCHEDULE A
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1. Effective date: 11/1/88 @ 8:00 A.M.
Case No. PCT-1232 C4
2. Policy or policies to be issued:
(a)ALTA Owner's Policy-Form 8-1970
(Rev. 10-17-70 & 10-17-84) or 10/21/87
PROPOSED INSURED:
Amount $ 2,204,000_00
Premium $ 4,258.00
(b)ALTA Loan Policy,
(Rev. 10-17-70 & 10-17-84) or 10/21/87
PROPOSED INSURED:
Amount $
Premium $
(c)Alta Loan Construction Policy, 1975
(Rev. 10-17-84)
Amount $
Premium $
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Tax Cert. $ T8D
SIMPLE estat~) interest in the land described or
Commitment is at the effective date hereof vested
3. Title to the FEE
referred to in this
/ in:
DOROTHY
GALLEGOS AND
I
MARIE MIKKELSEN, ARDITH
AL8ERTW. 8EVAN. JR.
...
LOUISE WARE, ALICE JUANITA
4. The land referred to in this Commitment is described as follows:
PLEASE REFER TO DESCRIPTION ATTACHED HERETO.
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PITKIN IFOUNTY TITLE,
601 E. HOPKINS
ASPEN. CO.'81611
303-925-1766
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INC. Schedule A-Pg. 1 I
This Commitment is invalid'
I unless the Insuring , ",
iP~ovisions and Schedules'
iA and 8 are attached. '
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RICHMOND, VIRGINIA
SCHEDULE B-SECTION 2
EXCEPTIONS
I
The' policy'or' policies to be issued will contain exceptions to the
fpJlowing~unless the same are disposed of to the satisfaction of the
Company.
'::!
1. 'Rights 01" claims 01" parties in possession not shown by the publio
records.
2. Easements, .01" claims of easements, not shown by the public records.
3. Discrepancies, conflicts in boundary lines, shortage in area,
'encroachments, and 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, 01" right to a
heretofore 01" hereafter
the public records.
5. Defects, liens, encumbrances, adverse claims 01" other matters, if
any, created, first appearing in the public records 01" attaching
subsequen{ to the effective date hereof but prior to the date the
proposed insured acquire~ of record for value the estate 01" interest
01" mortgage thereon covered by this Commitment.
lien, for service,
furnished, imposed
,
labor 01" material
by law and not shown by
6. Taxes due and payable: and any tax, special assessment, charge 01"
lien imposed for water 01" sewer service, 01" for any other special
taxing district.
7. Reservations and exceptions as contained in United States Patent
recorded August 29, 195. in Book 185 at Page 69 as ~ollows: right
of way for ditches 01" canals constructed by the authority of the
United States.
,8. Terms, conditions, obligations and provisions of Letter relating to
use of driveway from William R. Tiedt to Dorothy Marie Mikkelsen,
Ardith Louise Ware and Alice Juanita Gallegos as set forth in o",tJ$
J instrument recorded November~8,2 in Book 435~1i-Fr!r~e J8,ll ~WN $ {'f'(iT
.. ""fHOTE: Upon acquisition of th~ect property^"b~ I"".w.s ~sele~ates, t,..t-t~
,,',,'the title, wil 1 merge in the aoove exception and it will not appeal" buJrJ 1lt€
,c';!id,i:j:onjt?e, Fi7a 1 Owner' s Pol icy to be issued hereunder. ~~~~
:d:,:,::"Hi;,<' ; ',:', I I '
','iEg';:;'!ITerms; c ditions, obligation and provis ns of Sho~ Form 9Ptions
;'>:"::'1' 'i' by and etween A ert W. Be" n, Jr., an Fine Asso ates,,y"
~'!'W":~f,'I:Mil'1ne ta, Gener 1 Partn~rs i pas set f rth. ,in ,in rument recorded
:I'f\~',.sep mber'29, 987inBo 546 at, Pa e 919;.) an Short ormOption
~b~4J',bY~d betwe ,Ardith re, Doroth 't.1il<l<erse and A ce J.
,:j\?I!I.1 1<:,tM kkelsen i a .dFine As ociates, a innesota enera Partnersh_,~~l!!.
'~i!,~,,'" jl,~",:,jr,::,f',',~t, fnrtb' n' 'instru ent record Septemb 29, 87 in Boo 1".546 lit)
'1?:'IJI;h",.PageJ921. . ~
~WJ:d::'rP,tNO'F-E:<+U On"I1l5tis equiremen No.1, under Sc dule B- ','
~\!'I,1l1":l;il,\I,~J,\i'"S,e',c,ti,o 1.1,ih,ere will ot appeal" n the F al ::;.
lC\.\j'l(i:';'i"Ownel" s. Pol ic .::!\!
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~'.::f;'i"+'i"/,:,,(, I'Y 8-Sect"1 on 2 P I 1 :;<<~;:.AJi;~,:[!Y: -\"
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SCHEDULE 8-SECTION 2
CONTINUED
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,IThe Owner's Policy to be issued, if Ilny, shall
: items in addition to the ones set forth Ilbove:
'0(~) The Deed of Trust, if any, required under
I' t(2) Wllter rights, claims or title to water.
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are hereby omitted.
contllin the following
Schedule 8-Section
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."dj;he Insuring Provisions and Schedules
:!,A"jllnd ::,8' Ilre IlttllC hed .
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Schedule 8-Section 2
Commitment No. PCT-1232 C4
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Th~ tolJo~ing end9rsements will be issued in connection
,Mort~age/Owners' Policy to be issued hereunder.
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,FORM 116.4 (CONTIGUOUS PARCELS) $601.40
FORM 103~1 (EXCEPTION NO.7) 20.00
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NATIONAL HEADQUARTERS
RICHMOND, VIRGINIA
SCHEDULE FOR MORTGAGE/OWNERS
POLICY
with the
NOTES: UPON EVIDENCE OF PAYMENT OF 1987 TAXES, EXCEPTION NO. 6 WIL~ BE
,
REVISED TO SHOW: Taxes for the year 1988 not yet due or payable.
UPON EVIDENCE SATISFACTORY THAT THE SEWER LINE AS NOTED IN
PARAGRAPH NO. 8 OF LETTER FROM CALKINS, KRAMER, GRIMSHAW & HARRING HAS
BEEN ABANDONED AND A NEW SEWER LINE HAS BEEN APPLIED FOR OR CONSTRUCTED
PRINTED E,XCEPTION NO. 2 WILL BE DELETED.
Ii
,
EXCEPTIONS NUMBERED 1, 2, 3 & 4 WILL BE DELETED FROM THE
MORTGAGE/OWNERS POLICY.
NOTE: Mechanic's Lien Indemnity Agreement executed by the Seller and/or
Borrower must be delivered to and approved by the Company for deletion
of Printed Exception No.4.
" NOTE: Current survey, certified by a Registered Colorado Land Surveyor
must be delivered to and approved by the Company for deletion of
Printed Exception N. 3.
"'1 !
'This Commitment is invalid unless
the,'Insuring Provisions and Schedules
;A~nd B are attached.
~:~,i, H':::'
Schedule A-Section 1
Commitment No. PCT-1232 C3
"'~{r!~~;Y;;:" ,,"---'
".01_ ..........~. ,:,'". .,. ". ",
~'--.'~-a."";"_..~_.._';'".~_';~~;;j,li.-'i.iii.' ~r,iiliill.'_..~~ '.~.;u~;~ii~ ~';';'~';';":;;';.;~*~:.:MiiiI"-'ijlilliGii[J&ii~;'~'~'~ "':i'~'iiillil,BDiiIlifIil.lirnlill~
...... ,
I; I,
~., .~wyers l1tle .
I~urance'@porat1on
<,..';
:'
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".1.11:'1
li,"lli''I'
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,1:'1">'1',','11 COMMITMENT FOR TITLE INSURANCE
i," ~I, I "" I , !
], ,,!liiiI.AVYYERSJITLE :'N~LJRANcE: CORPORATION,: a Virginia' corporation, herein caUed the Company, for valuable
',"il. ppnsid, e. ~~ti.~..~. '. ~erebv ,!,omm.its to issue it.S policy or, POI.icies.of title. insurance, as identified in Schedule "I, in favor of the
, ;:!~ IJiproposed Insured named in Schedule A~ as owner orl mortgagee of the estate or irlterest covered hereby in :the land
""',!,'l'I.'ide.$cr.ibe.d "r.'re.f.er./.ed to.' in SCh. edule A, Jpon payment of the premiums and charges therefor;. all subjeclto the provisions:
I'i!~~f srridUlejlt .~~~i t to th'T ~ondltlons an~ Stipulations hereof. i .' '/
:!; 'iThis Commitment shall be effective only when the identity of the proposed Insured and the amount of the policy or
policies'committed'for have been inserted in Schedule A hereof by the Company, either at the time of the issuance of this
JI',.:'I' . II I
: I!:: '.~9~rl1:j~,"1!~R,t !o~ .:~Y iS~bseq,uent endorsement. , '
, !1.",I:g.:'I." '::l'lil I,
':.;,::',' i' .', ",,' '. ,
,', " ',i.i'" IThis;9ommitm~nt is preliminary to the issua~ce of such policy or policies ,of titl~ insurance and all liability and
i;' ;ob"~atl?ns ~ereunder,shaU cease and term mate SIX (6) months after the effective date hereof or when the policy or
"., . ,:!i,policies committed for ~hJU issue, whichever first occurs, provided that the failure to issue such policy or policies is not the
":'iJfa~it"f,lhe,<i()mpany. This rommitment shall. not be valid or binding until countersigned by an authorized officer or agent.
",I~i)i,i," l 'i ':':'! ,: I '
F,'i'~ WITNES~ ,W~EREOF, the Company has caused this Commitment to be signed and sealed, to become valid when
I",countersigned by an authorized officer or agent of the Company, all in accordance with its By-Laws. This Commitmenl is
:.[il! .'j I,,!' ,", . '. ,
. ' i'i',~!fect.iy~,as"fi t~e date ,shown in Schedule A as "Effective Date." ..
I:, </~" ,,;, ,I!' i!;,' Ii '
...:1..'.]:.. . i, > I",,' "I" C.ONDITIONS AND STIPULATIONS
,I ^. j't.: ';, !di ,
"I':'" i "II
,.1, i:';,,11;r!';T~:)er"1i(,!T!ortgage," when used herein, shall include deed of trust, trust deed, or Other security instrument,
':1 "; ""'I
,i:"!'~'~i.'ilf the!proposed Insured has or acquires actual knowledge of any defect. lien, encumbrance, adverse claim or other
Ilf ",': :''::~matter affecting the estate or interest or mortgage thereon covered by this Comf!litment other than those shown in
i [I,', 'Schedule'B hereof, and shall fail to disclose such knowledge tothe Company in writing, the Company shall be relieved
: fr6m lia~i1ity for any loss or damage resulting from any act of reliance hereon to the extent the Company is prejudiced
by failure to so'disclose such knowledge. If the proposed Insured shall disclose such knOWledge to the Company, or if
' -
,the Company otherwise acquires actual knowledge of any such defect, lien, encumbrance, adverse claim or other
. matter, the Company at its option may amend Schedule B of this Commitment accordingly, but such amendment shall
not relieve the Company from liability previously incurred pursuant to paragraph 3 of these Conditions and
Stipulations.
NATIONAL HEADQUARTERS
RICHMOND. VIRGINIA
"
3. Liability of the Company under this Commitment shall be only to the named proposed Insured and such parties
. included under the definition of Insured in the form of policy or policies committed fQr and only for actual loss
incurred in reliance hereon in undertaki'!g in good faith (a) to comply with the requirements hereof, or (b) to eliminate
lexceptions shown in Schedule B, or (c) to acquire or create the estate or interest or mortgage thereon covered by this
Commitment. In no event shall such liability excead the amount stated in Schedule A for the policy or poliCies
,committed for and such liability is subject to the insuring provisions and the Conditions and Stipulations and the
j!.Exclusions f.rom Coverage of the form of policy or poliCies committed for in favor of the proposed Insured which are
I "ii,' hereby i"corporated by reference and are made a pari of this Commitment except as expressly modified here~n.
,,',i:, ::,: ' .: t . 'I'
1:' : I! ; ; " : 'I :: ~ , . I ! . ,
'J' 'riU:I,L~~: :,Any action or ;action~or rights of action that the proposed Insured may have or may bring against the Company
:~;i!ii,,~'!1H,f:!':!',~iiariSing qut of the status of the title to the estate or interest or the status of the mortgage thereon covered bY this
f!,!~,>Y}~"fi,;,:)ii~'~Com~itme~t must be based on and are subject to the provisions of this Commitment. '
.^ ..,<if":I!;"";' ",' I' ,
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1. Masterson v. McCroskie, 194 Colo, 460, 573 P.2d 547
(1978). This is an action for an alleged infringement
of a common law copyright in which the lower court
concluded that the copyright had been lost by general
publication. The court of appeals reversed. This case
is different than ours ~n that the architect had
assigned his rights to the plans to the owners of the
house, and they were the persons attempting to receive
the copyright, They won this case because the courts
stated that the property owner's limited cOllununication
of the plans to selected individuals, contractors,
subcontractor, building inspector, etc., did not
constitute publication,
....11.1.,:)
, owners did own the copyr~ght
case establ1shed, that the architect had assigned h1s
to the plans, S111ce the I t as the owners who owne~
ri hts to the owner,s. w assi ned his rights, 1t
th~m Had, the arclutect not 1: fect would own them,
1 . id be surmised t~at the arCl1 ,
S lOU .,' l' _
. .' . '. otects archi tectural proper:::.,
"ColI\mon law copyr1ght ir 1 IS until the property 1..
including arch~ tecturad lecflca'ted to the public."
generally publ1shed an
n
".....,
.2, Smith v, Paul, 345 P.2d 546 (California 1959) NOT
SHEPARDIZED. This is an action to recover damages for
duplica tion of house constructed under common law
copyright. "As we have pointed out, the forced filing
of the plans in the building department of a
municipality constitutes only a limited publication of
the cOllunon law copyright, a limited PUblication which
gives no person the right to tlse a copy thereof. In
view of 'the limited purpose of the filing of
architects' plans in a building department the plans do
not become a public record in the sense that the public
has the right to use such plans. .,. The filed plans
are open to public inspection for the purpose of
determining whether or not the building planned will
comply with the law but not for the purpose of giving
anyone the right to use them. ." It would be
unreasonable to deprive an architect of his property
right merely because he is required to file his plans
with a public officer for reasons completely
independent of any requirement that he thereby lose
such right." This is a long California case of first
impression, and I have included it for its discussion
of several cases that hold the opposite and its
thereafter adoption of the new principle that the
architect retains his conunon law copyright.
3. Aitken, Hazen, Hoffman, etc., v. Empire Constructioll
~, 542 F,Supp, 252 (1982) (Nebraska--NOT
SHEPARDIZED), An architectural firm brought an action
against developer and company it employed to construct
multi-unit apartment complex claiming copyright
infringement, The courts held that the defelldants were
liable for copyright infringement of archi tectural
drawings which they copied and used in construction of
an apartment complex on a neighboring parcel's land,
In this case, an architect prepared plans for a
specific 22-unit apartment at a specific address, ~~e
plans were paid for and the constructioll completed in
1979. In 1979, the developer employed the same
contractor to construct another complex on the parcel
next door. The contractor without the permission or
knowledge of the architect copied the plans and used
those plans for the construction of the second
apartment house, which was completed in 1.980. The
plaintiff architect discovered this in March, 1980, and
delivered a bill to the contractor and developer for
services rendered. Both the contractor and developer
denied any liability for claimed services, and the
architect filed a mechanic's lien on the second piece
of real estate. That action was dismissed for failure
to establish an express or implied contract. In April,
the architect placed a copyright on the original of the
plans it had prepared, Prior to that date, no such
notice had appeared on the plans. The plaintiff
'-'1
~
applied for a copyright in the U.S. copyright office
and, in May, notified each of the defendants of its
claim for infringement. In June, 1980, the plaintiff
ini tia ted the lawsuit under the copyright act, ,The
question also arose whether or not these plans were a
work made for hire, The case goes into great deal to
explain the copyright code of the United States and
held this architectural work fits into it. Our case,
of course, is not based on any claim under the
copyright act; however, all the discussion here is good
as to'generalities of ownership of the plans and work
for hire. The federal court establishes that, where a
company employed to construct mul ti-uni t apartment
complex did not exercise and did not have right to
exercise control over professional architectural and
engineering firm, architectural firm was independent
contractor and not employee of company and thus, under
copyright act of 1976, copyright ownership of
architectural drawings vested in architectural firm.
They also established that the developer which
infringed the plaintiffs' copyright of architectural
drawings by copying drawings and using copies in
construction of an apartment complex on neighboring
parcel was not a copyright owner under either the work
made for hire or joint ownership provisions of the
copyright act, "No educational scientific or
historical purposes were served by Belmont's use of the
plaintiffs' plans. The evidence before me indicates
that there was no ready market for architectural plans
for apartment complexes and that Belmont was the
plaintiffs' only potential market source. Thus, by
copying the plaintiffs' plans and using them for the
same functional purpose as that which the plaintiffs'
plans would have been used for had Belmont not copied
the plans, Belmont destroyed the plaintiffs' potential
market. This was not a fair use of the plans under
copyright law." The court also finds that "each of the
bills received by Belmont from the plaintiff was 'for
architectural and engineering services rendered' in
connection with the above mentioned project, plus
reimbursable expenses, The personnel services for
which Belmont paid were based on an hourly rate for
each of the plaintiff's employees working on the
project. 'rhus, it appears that Belmont paid for the
plaintiff's services in preparing the plans, and not
for the plans themselves."
4.
18 C.J.S. Copyrig.ht and Literary Property.
highlighted various sentences and sections
C.J.S. Copyright and Literary Property book
with architectural plans.
I have
of the
that deal
5. 5 Am. Jur. Second Archi teets. I have included this
section because I had it out and xeroxed it, It dOB~
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'. REA, CASSENS & ASSOCIATES, INC.
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Exhibit "D"
I\pri I 27, 1988
Mr. Hark Hershberger
Design Workshop Inc.
710 E. Durant
Aspen, Colorado 81611
Dear Mr. Hershberger:
Transmitted herewith are the Peak Flow and Stormwater Detention Vulullle
Calculations prepared for the 700 E. Main Project. If.Iet~;c(j1l;e:Cl"1:',j"ti'!:fl'rS
nl'W rnl'""~li~A:w~'~""IB2~a;d'.:RJ)'il~I~..,';S.g~ll,,k',,~::i"'!m.
All calculations were prepared in accordance with the criteria called
for in the City of Aspen Urban Run-off Management Plan. A detention
volume of 1500 cubic feet has been provided, and represents an
approximate 25 per cent overdesign to account for changes during the
de sign deve I opme n t p roces s . ~~~J;(.:t;:l:<ttm:mrs;.:vIil~p-e,'7J3:re'P'3'f'eo'p'r<io I'
~gJ.~,1J,t,;:t;tP;~-;::;;;;2
In order to coriform with the City of Aspen Code which requires that
historic ground water recharge rates be maintained, a dry well will be
constructe~ on the southwest corner of the site. The dry well will be
sized to accommodate the historic rate of ground water recharge and the
flow from the foundation drains. Calculations are currently being
prepared to quantify the historic ground ~ater recharge rate. These
calculations will be submitted to the City Engineering Department upon
completion.
If further information is required, please advise.
Sincerely yours,
Rea, Cassens and Associates, Inc.
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Enclosures
clc "1artha Pickett, ltr only
Hi chac 1 TholllDson, , tI' Old)'
Kevin O'Connell, Project Engineer
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Consultinq EnQineers
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