HomeMy WebLinkAboutLand Use Case.410 S West End St.0031.2009.ASLUTHE CITY OF ASPEN
City of Aspen Community Development Department
CASE NUMBER
PARCEL ID NUMBER
PROJECTS ADDRESS
PLANNER
CASE DESCRIPTION
REPRESENTATIVE
DATE OF FINAL ACTION
0031.2009.ASLU
2737 182 91 006
410 S WEST END ST
DREW ALEXANDER
SUBDIVISION EXE
LENONARD OATES
6.20.2009
CLOSED BY Angela Scorey on 07/29/2009
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Q ~ Main Cullom Fields Fees ~, Fee Summary ~ Yaluatien ~, Actions ~ Routing History ~onddims Parcels ;Sub Permds
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~ ~!I Permit TYPe Permdp 0031.2009,ASLU
- y -, Address 410 S WEST END ST J ApUSuite
_- Cay ASPEN _-. State CO ~ 2p 81611 J
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Submitted LEONARD OATES 9201700 pock Running Days I Expires O5J17J2030 J
Owner ---::- -~:: _ __:: ".:. ~.:_. _. _.:. _...
Last Name 410 WEST END, LLC 2 Fust Name ~- 306 S GARMISCH ST
~~ ~ ASPEN CO 81611
~ r OwnerlsApplicant?
Last Name 410 WEST END, LLC J Fast Namer- 306 S GARMISCH ST
ASPEN CO 61611
Phone ~ Cult p 28575
-Lender _. :::_ - - _::
Last Name J First Name ~-
i Phone ~-
Eller the permd type code - __. _.. __. _ - _ _...
Janice K. Vos Caudill
Clerk and Rewrder
530 East Main Street
Aspen, CO 81611
(970)429-2707
www.PitkinClerk.orn
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' Page 1 of 2
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Print Date:
Pitkin County Transaction #:17894 6/26/2009 11:54:58
Receipt #: 200903911 AM
Cashier Date: 6/26/2009 11:54:46 AM
(LDEAN)
Customer Information Transaction Information Payment Summary
DateReceived: 6/26/2009
Source Code: Over the
Counter
(OATHUG) OATES KNEZEVICH & Over the
GARDENSWARTZ Q Code:
Counter Total Fees $298.00
533 E HOPKINS ST Return Code: Over the Total Payments $298.00
ASPEN, CO 81611 Counter
Trans Type: RECORDING
Agent Ref 410 WEST
Num:END L/YI A
2 Payments
~-
CHECK 30904 $29.30
^
ESCROW $268.70
3 Recorded Items
~CONDO BKPG: 0/0 Reception: 560265 Date: 6/26/2009
_
CONDOMINIUM 11:54:33AM
DECLAR~
_
DECLARATION From: To:
Recording @ $6 for lpg and $5 for 2 or more pgs 26
$131
00
$1 Surchazge .
BKPG: 91/26 Reception:560266 Date:6/26/2009
(PLATS PLAT 11:54:34AM
From: To:
Plat Recording @ $]0 perpage $1 Surcharge 7 $71.00
BKPG.' 0/0 Reception: 560267 Date: 6/26/2009
(DEED RESTRICT) DEED 11:54:35 AM
RESTRICTION From: To:
Recording @ $6 for Ipg and $5 for 2 or more pgs 19 $96
00
$1 Surchazge .
Deed Doc Stamps @ $0.10 per $1000 0 $0.00
file://C:\Program Files\RecordingModule\default.htm 6/26/2009
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THE CITY OF ASPEN
Land Use Application
Determination of Completeness
Date: May 28, 2009
Deaz City of Aspen Land Use Review Applicant,
We have received your land use application and reviewed it for completeness. The case number
and name assigned to this property is 0031.2009.ASLU, 410 S. West End - Condominiumization.
The planner assigned to this case is Drew Alexander.
^ Your Land Use Application is incomplete:
We found that the application needs additional items to be submitted for it to be deemed
complete and for us to begin reviewing it. We need the following additional submission
contents for you application:
Please submit the aforementioned missing submission items so that we may begin reviewing
your application. No review hearings will be scheduled until all of the submission contents listed
above have been submitted and aze to the satisfaction of the City of Aspen Planner reviewing the
land use application.
our Land Use Application is complete:
If there aze not missing items listed above,
to begin the land use review process.
then your application has been deemed complete
Other submission items may be requested throughout the review process as deemed necessary by
the Community Development Department. Please contact me at 429-2759 if you have any
questions.
T~c-You;
~/w~
1 \ ~~
Jennifer Phel eputy Director
City of Aspen, Community Development Department
C:\Documents and Settings\jennifep\My Documents\planning\Templates\Templates\Land Use Cases\Completeness
Letter Land Use.doc
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ATTACHMENT 2-LAND USE APPLICATION
PROJECT:
Name: 410 West End Townhomes Condominiums
Location: 410 West End, Aspen, CO 81611
(Indicate street address, lot & block number, legal description where appropriate)
Parcel ID # (REQUIRED) ~3'T6-32~i
APPLICANT:
Name: 410 West End, LLC
Address: 306 S. Garmisch, Aspen, CO 81611
Phone #: 2737-182-91-001
Name: Leonard M. Oates/ Oates, Knezevich, Gardenswartz & Kelly, P.C.
Address: 533 E. Hopkins Ave., 3rd Floor, Aspen, CO 81611
Phone#: 970-920-1700
TYPE OF APPLICATION: (please Check all that apply):
^ GMQS Exemption
^ GMQS Allotment
^ Special Review
^ ESA - 8040 Greenline, Stream
Mazgin, Hallam Lake Bluff,
Mountain View Plane
^ Commercial Design Review
^ Residential Design Variance
^ Conceptual PUD
^ Final PUD (& PUD Amendment)
^ Subdivision
® Subdivision Exemption (includes
condominiumization)
^ Lot Split
^ Lot Line Adjustment
^ Temporary Use
^ Text/Map Amendment
^ Conceptual SPA
^ Final SPA (& SPA
Amendment)
^ Small Lodge Conversion/
Expansion
^ Other:
1;XISTINC CONDITIONS: (description Of existing buildings uses previous approvals etc )
New constructed residential condominium- two (2) free market units and three
(3) deed restricted affordable housing units
PROPOSAL: (description of proposed buildings, uses, modifications, etc
Condominiumization of newly constructed residential buildin Project
approval per Oridinance #9, series of 2006. All conditions of Ordinance met.
lave you attached the following? FEES DuE: $ 735.00
u nc-r~ppucauon i.omerence aummary
x^ Attachment #1, Signed Fee Agreement
^ Response to Attachment #3, Dimensional Requirements Fonn
^ Response to Attachment #4, Submittal Requirements- Including Written Responses to Review Standards
^ 3-D Model for large project
(All plans that are larger)than 8.5" X i l" must Pe folded. A Pisk with an el B tric copy ~~®
Microsoft Word Format must be submitted as art of the a lication. Lar a scale ro t
electronic 3-D model. Yauryre-application conference summary will indicate it you must submit a 3-D model.
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CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT
Aereement for Payment of Cih of Aspen Development Application Fees
CITY OF ASPEN (hereinafter CITY) and 410 West End. LLC
(hereinafter APPLICANT) AGREE AS FOLLOWS:
1. APPLICANT has submitted to CITY an application for
Condominiumization of five (~ newly constructed residential units
(hereinafter, THE PROJECT). at 306 S. Garmisch, Aspen, Colorado
2. APPLICANT understands and agrees that the City of Aspen has an adopted fee stmcture for Land
Use applications and the payment of all processing fees is a condition precedent to a detertnina[ion of application
completeness.
3. APPLICANT and CITY agree that because of the size, nature or scope of the proposed project, it
is not possible at this time [o ascertain the full extent of the costs involved in processing the application.
APPLICANT and CITY further agree that it is in [he interest of the parties that APPLICANT make payment of an
initial deposit and to thereafter permit additional costs to be billed [o APPLICANT on a monthly basis.
APPLICANT agrees additional costs may accrue following their heazings and/or approvals. APPLICANT agrees he
will be benefited by retaining greater cash liquidity and will make additional payments upon notification by the
CITY when [hey are necessary as costs are incurted. CITY agrees it will be benefited through the greater certainty
of recovering its full costs to process APPLICANT'S application.
4. CITY and APPLICANT further agree that it is impracticable for CITY staff to complete
processing or present sufficient information to the Historic Preservation Commission, Planning and Zoning
Commission and/or City Council to enable the Historic Preservation Commission, Planning and Zoning
Commission and/or City Council to make legally required findings for project consideration, unless current billings
are paid in full prior to decision.
5. Therefore, APPLICANT agrees that in consideration of the CITY's waiver of its right to collect
full fees prior [o a determination of application completeness, APPLICANT shall pay an initial deposit in the
amount of$ 735.00 which is for~hr~e f 1 lhours of Community Development staff time, and if actual
recorded costs exceed the initial deposit, APPLICANT shall pay additional monthly billings [o CITY to reimburse
[he CITY for the processing of the application mentioned above, including post approval review at a rate of $235.00
per planner hour over the initial deposit. Such periodic payments shall be made within 30 days of the billing date.
APPLICANT further agrees that failure to pay such accrued costs shall be grounds for suspension of processing, and
in no case will building permits be issued until all costs associated with case processing have been paid.
CITY OF ASPEN
By:
Chris Bendon
Community Development Director
APPLICANT
410 West End, LLC
t
sy:
Date:
Billing Address and Telephone Number:
c/o Oates, Knezevich, Gardenswartz
& Ke113r~ n r
., Floor
Aspen, CO 81611
Attn: Leonard M. Oates
AUTHORIZATION TO FILE
APPLICATION FOR CONDOMINIUMIZATION
I, John R. Provine, Manager of 410 West End, LLC and authorized representative
and owner of the properties at 410 West End ("Owner"), hereby authorize Leonard M.
Oates of Oates, Knezevich, Gardenswartz & Kelly, P.C. to represent the Owner in the
matter of the Application for Condominiumization of the property and all related matters.
Dated this ~Fday of ~_, 2009
-~-----
J R. Provine, Manager of 410 West End, LLC
STATE OF COLORADO )
)ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this ~~ day of
~, 2009 by John R. Provine, as Manager of 410 West End, LLC.
Witness my hand and official seal.
My commission expires:
Notary Public
CHRIS DEELY
NOTARY PUBLIC
STATE OF COLORADO
Mr Corr~eelon EzWres o~t8/2o~ t
470 WEST END TOWNHOMES
A PARCEL OF LAND SITUATED IN THE NW1/4 OF SECTION 18, TOWNSHIP 10 SOUTH,
RANGE 84 WEST OF THE 6th P.M. CITY OF ASPEN, COUNTY OF PITKIN, STATE OF COLORADO
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VICINITY MAP
SCALE: 1" =1000'
SOPRIS ENGINEERING - LLC
CIVIL CONSULTANTS
502 MAIN STREET, SUffE A3
CAR30NJA._E. I:ULORADU ff'623
(970) 704-03't
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JANICE K VOS CPUDILL PITKIN COUNTY CO R 83.00 D 0.00
SUBDIVISION AGREEMENT
FOR
410 WEST END CONDOMINIUMS SUBDIVISION
THIS SUBDIVISION AGREEMENT ("Subdivision Agreement") is made and
entered into this ~c day of Q,(.l.s~/s ~ , 2006, by and between THE CITY OF
ASPEN, COLORADO, a municipa c~oipora-lion (hereinafter referred to as "City"), and
JOHN R. PROVINE & RONALD E. SODERLING TRUSTEE OF THE
SODERLING LIVING TRUST U/D/T FEBRUARY 20, 1996 (hereinafter collectively
referred to as "Owner"),
WITNESSETH:
WHEREAS, Owner has submitted to the City for approval, execution and
recordation a Subdivision Plat of a parcel of land situated within the City of Aspen,
Colorado and more particularly described as Lots A and B, Block 118, City and Townsite
of Aspen, Colorado which was subsequently subdivided into Cooper Apartments
Condominiums, according to the Condominium Map thereof recorded December 9, 1998
in Plat Book 48 at Page 6 as Reception No. 425291 and as defined and described in the
Condominium Declazation recorded July 20, 1989 in Book 597 at Page 709 as Reception
No. 208590, both of the records of Pitkin County, Colorado, the condominium regime of
which was terminated by the Owner's predecessor in title (as the Owner of all the four (4)
condominium units thereof) by document recorded June 15, 2006 as Reception No.
525243 of the records of Pitkin County, Colorado (hereinafter referred to as the
"Subdivision Plat"), said property being hereafter designated and known as the "410 S.
West End Condominiums Subdivision"; and
WHEREAS, City has fully considered the Subdivision Plat, the proposed
development and improvement of the lands therein, and the effects of the proposed
development and improvement of said lands on adjoining or neighboring properties and
property owners; and
WHEREAS, under the provisions of Ordinance No. 9 (Series of 2006) adopted
by the Aspen City Council on May 8, 2006, the City has imposed certain conditions and
requirements in connection with its approval of the 410 West End Condominiums
Subdivision and its execution and recordation of the Subdivision Plat, such matters being
necessary to protect, promote and enhance the public welfaze; and
WHEREAS, Owner is willing to acknowledge, accept, abide by and faithfully
perform the conditions and requirements imposed by the City in approving the 410 West
End Condominiums Subdivision and the Subdivision Plat; and
WHEREAS, contemporaneously with the execution and recording of this
Subdivision Agreement, and pursuant to Section 26.480.070.A of the Aspen Municipal
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Code, City and Owner have executed and recorded on
Subdivision Plat in Plat Book _ at Page _, as Reception No. _
the Office of the Clerk and Recorder of Pitkin County, Colorado.
2006 the
in
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, the approval, execution and acceptance of the Subdivision
Plat, and for other good and valuable considerations, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
ARTICLE I
ZONING AND REGULATORY APPROVALS
1.1 Pursuant to Resolution No. 8 (Series of 2006), adopted on Febivary 7,
2006, the City of Aspen Planning & Zoning Commission ("PBtZ") approved with
conditions, development of affordable housing, and recommended that the City Council
approve with conditions, the 410 West End Condominiums Subdivision and
condominiumization to construct two (2) free market residential units and two (2) deed
restricted affordable housing units to be located on the property located at 410 S. West
End Street and legally described in the first Whereas clause hereof.
1.2 Pursuant to Ordinance No. 9 (Series of 2006) adopted on May 8, 2006 and
recorded as Reception No. the Aspen City Council approved the 410 West
End Condominiums Subdivision, with conditions, increasing the number of deed
restricted affordable housing units to three (3), approved the eventual
condominiumization of the project to define the separate ownerships therein by the
recording of a condominium map in compliance with the current (at the time of
condominium map submission) requirements of the Community Development Engineer.
In the event of any inconsistency between the provisions of the above-described
Ordinances and/or Resolutions and the provisions of this Subdivision Agreement, the
provisions of this Subdivision Agreement shall control.
ARTICLE II
DEVELOPMENT REQUIREMENTS AND RESTRICTIONS
2.1 Floor Area Limitations. The building will contain two (2) free market
dwelling unit and three (3) affordable housing units (the "AH Units"). The total floor azea
of the building is limited to 7,500 square feet of "floor area", as defined in the Aspen
Municipal Code on the date of building permit application, which may be allocated
between them as determined by the Owner. AH Unit 1 is a studio unit which shall
contain a minhnum of 400 square feet of net livable azea as defined in the Aspen
Municipal Code on the date of building permit application; and, AH Units 2 and 3 shall
each contain two (2) bedrooms each and contain a minimum of 870 square feet and 940
square feet, respectively, of "net livable area."
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2.2 Heieht. The building's maximum allowable height is 32 feet, to be
calculated pursuant to the City's building height methodology in place at the time of
building permit application.
2.3 Off-Street Parkin . Six (6) off-street parking spaces aze required in the
project. Four 4 of these spaces shall be allocated to the free market residential units and
two (2) of these spaces shall be designated for use of the occupants of the AH units.
2.4 Affordable Housine Mitieation. Two (2) on-site, two-bedroom AH units
and one (1) on-site studio unit are required for the project. AH Unit 1 is a studio unit and
must contain a minimum of 400 square feet of net livable area, AH Unit 2 shall contain
870 squaze feet of net livable area and AH Unit 3 shall contain a minimum of 940 squaze
feet of net livable azea. Each must be deed restricted to the Aspen/Pitkin County Housing
Authority's Category 2 income and occupancy guidelines (the "APCHA Guidelines")
concurrent with the recording of the condominium map for the project and before a
Certificate of Occupancy is issued for the project. The deed restriction shall permit the
Owner, as Owner of the AH units to lease such AH units to "qualified employees" of the
Owner's selection. While it is presently contemplated that the AH units will be rental
units, the Owner shall have the right at any time to convert them to "for-sale" units and to
sell them to buyers qualified under the APCHA Guidelines. Further, the AH units shall
become sale units at such time as the APCHA deems the units to be out of compliance
with the rental occupancy requirements set forth in the APCHA Guidelines for a period
of more than one (1) year from the date on which the APCHA gives the record owner of
the AH units written notice of such noncompliance and such non-compliance has not
been cured during said one-yeaz period.
So long as the AH units ate rental units, they shal] be owned by the Owner.
Unless a different arrangement is worked out with the City, and only to the extent
required to comply with applicable Colorado law, aone-tenth of one percent interest in
each of the AH units will be conveyed to APCHA at the time the remaining ownership
interest is deeded to the Association. Said one-tenth of one percent interest is hereinafter
referred to as the "APCHA Interest". The conveyance of the APCHA Interest shall be
expressly subject to the understanding and agreement that (a) ownership of the APCHA
Interest only gives the APCHA the right to enforce the deed restrictions on the AH unit,
and does not give the APCHA any authority or rights that are not specifically set forth in
the deed restriction, (b) in all other respects, the APCHA shall be deemed to have no
ownership rights or responsibilities in connection with the AH units, and the record
owner of the remaining interest in the units shall have full right and authority to lease,
encumber, or otherwise deal with the AH units as if such owner held a 100 percent
interest therein, (c) APCHA shall have no liability to third persons arising solely out of its
ownership of the APCHA Interest, and the party conveying the APCHA Interest shall
indemnify APCHA from and against any losses or liabilities arising solely out of its
ownership of the APCHA Interest, (d) the APCHA Interest will be conveyed to the
Association or other then-current owner of the AH unit if and when the Colorado
legislature or a court of competent jurisdiction legalizes the imposition of rent restrictions
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OS CPUDILL PITKIN COUNTY CO 06 10.311
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on affordable housing units, and (e) the APCHA Interest will be conveyed to the buyer of
the AH unit if it is converted to a sale unit and sold by the Association to a qualified third
P~1'•
In the event the project is sold by Owner to a third party before the project is
condominiumized, the Owner shall have the right to assign the foregoing deed restriction
and APCHA Interest obligations to the third party buyer.
2.5 Buildine Permit Anolication. The building permit application for the
project shall include the following:
(a) Copies of P&Z Resolution No. 5 (Series of 2006) and of City
Council Ordinance No. 9 (Series of 2005).
(b) The conditions of approval printed on the cover page of the
building permit set.
(c) A completed tap permit for service issued by the Aspen
Consolidated Sanitation District.
(d) A drainage plan, including an erosion control plan, prepared by a
Colorado licensed Civil Engineer, which maintains sediment and debris on-site
during. and after construction. If a ground rechazge system is required, a soil
percolation report will be required to correctly size the facility. A 5-year storm
frequency should be used in designing any drainage improvements.
(e) An excavation stabilization plan, construction management plan,
and drainage and soils reports pursuant to the Building Department's
requirements. The construction management plan shall include an identification
of construction hauling routes for review and approval by the City Engineer and
Streets Department Superintendent. The construction management plan shall also
identify that the adjacent sidewalks will be kept open and maintained throughout
construction.
(fl A fugitive dust control plan to be reviewed and approved by the
City Engineer.
(g) A detailed excavation plan that utilizes vertical soil stabilization
techniques for review and approval by the Community Development Engineer.
(h) Accessibility and ADA compliance to all units addressed to
satisfactorily meet the most restrictive of federal, state or city standards building
code.
2.6 Dimensional Requirements. The development of the 410 West End
Condominiums as approved complies with the dimensional requirements of the
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Residential Multi-Family (RMF} Zone District. The structure shall meet all of the
required Residential Design Standazds applicable to amulti-family building. Compliance
with these requirements will be verified by the City of Aspen Zoning Officer at the time
of building permit submittal.
2.7. Sidewalks. Curb and utter The sidewalks and crosswalk ramps
adjacent to the property shall be upgraded to meet City Engineer's requirements and
ADA requirements prior to issuance of a certificate of occupancy on any of the units
within the project. Additionally, the sidewalk along South West End Street shall be
reconstructed so that it is detached from the curb, creating a five (5) wide landscaping
buffer. The Owner shall also repair any curb and gutter adjacent to the property that is
deemed to be in disrepair by the City Engineer before a certificate of occupancy is issued
for any of the units within the project. Building permit approval of plans does not
constitute approval of sidewalk, curb and gutter locations and specifications. Final
sidewalk, curb and gutter locations and specifications shall be established through the
review and approval of aright-of--way permit.
2.8 Trash/Utility Service Area. The trash enclosure, located adjacent to the
side property line and accessed from the alley, shall not use a dumpster style trash
container. The trash containers shall be wildlife proof.
2.9 Relocation of Utility Pedestal. The Owner shall relocate the utility
pedestal that currently exists in the Block 118 alleyway neaz its intersection with South
West End Street. The utility pedestal shall be relocated further north in the South West
End Street right of way since it serves multiple properties.
2.10 Fire Mitieation. The Owner shall install a fire sprinkler system and alarm
system in the building that meets the requirements of the Aspen Fire Marshal.
2.11 Water Department Requirements. The Owner shall comply with the
City of Aspen Water System Standazds, with Title 25, and with the applicable standazds
of Title S (Water Conservation and Plumbing Advisory Code) of the Aspen Municipal
Code, as required by the City of Aspen Water Department. Each of the units within the
building shall have individual water meters.
2.12 Sanitation District Requirements. The Owner shall comply with the
Aspen Consolidated Sanitation District's rules and regulations. No cleaz water
connections (roof, foundation, perimeter, patio drains) to ACSD lines shall be allowed.
On-site utility plans require approval by ACSD. Below grade development may require
installation of a pumping system. One tap is allowed for each building. Shazed service
line agreements will be required where more than one unit is served by a single service
line. Permanent improvements are prohibited in sewer easements or right of ways.
Landscaping plans will require approval by ACSD where soft and hard landscaping may
impact public ROWS or easements to be dedicated to the district
2.13 Electrical Department Requirements. The Owner shall have an electric
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connect load summary conducted by a licensed electrician in order to determine if the
existing transformer on the neighboring property has sufficient capacity for the
redevelopment. If a new supplemental transformer is required to be installed on the
subject property, the Applicant shall provide for a new transformer and its location shall
be approved by the Community Development Department prior to installation. The
Owner shall dedicate an easement to allow for City Utility Personnel to access the
supplemental transformer for maintenance purposes, if a supplemental transformer is
installed. If after the subdivision plat is recorded and in the event an easement is required,
the Community Development Director shall review and approve the easement on the
condominium plat.
2.14 Exterior Li¢htiue. All exterior lighting shall meet the requirements of the
City's Outdoor Lighting Code pursuant to Land Use Code Section 26.575.(50, Outdoor
Lighting.
2.15 Impact Fees. All impact fees that are in effect at the time of building
permit, as applicable, shall be paid prior to the issuance of a building permit.
2.16 School Lands Dedication Fee. Pursuant to Land Use Code Section
26.630, School lands dedication, the Owner shall pay afee-in-lieu of land dedication
prior to building permit issuance. The City of Aspen Community Development
Department shall calculate the amount due using the calculation methodology and fee
schedule in affect at the time of building permit submittal. The Owner shall provide the
mazket value of the land including site improvements, but excluding the value of
structures on the site.
2.17 Park Development Imnact Fee. Pursuant to Land Use Code Section
26.6 10, Park Development Impact Fee, the Owner shall pay a pazk development
impact fee prior to building permit issuance. The pazk department fee schedule is subject
to change and the actual fee shall be calculated according to the fee schedule in effect at
the time of building permit submittal as set forth in Land Use Code Section 26.610, Pazk
Development Impact Fee.
2.18 Landscaoine. An approved tree removal permit and excavation under the
drip line permit is required prior to submitting the building pernut. The Parks
Department approval will be contingent on the approved tree permit. A detailed tree
protection plan is required as part of the building permit submittal and should include
fence details and fence locations as well as the following language, "A construction fence
shall be installed at the drip line of each individual or grouping of trees remaining on
site." No excavation, storage of materials, storage of construction backfill, storage of
equipment, and foot or vehicle traffic will be allowed within the tree protection fence.
Contact the City of Aspen Pazks Department for inspection of the fence before
any construction activities commence. Specific excavation techniques to be approved by
the Pazks Department shall be required along the entire length of the Cooper Avenue
excavation and vertical excavation shall be required along the length of South West End
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IIIIIIIIIIIillllllllllllllNIIII VIII III VIIIIIII IIII 00 9 990 0010 31~
Street excavation. No over digging is allowed on the South West End Street and Cooper
Avenue excavations.
ARer inspection and approval of the fence location, the fence cannot be moved or
removed without permission from the Pazks Departrnent or until the project receives the
Certificate of Occupancy. Improvements to both of the adjacent City ROW's shall
include irrigation, new sod and soil, and new street tree plantings along East Cooper
Avenue and South West End Street meeting the approval of the Pazks Department.
Autumn Blaze Maple trees shall be planted along Cooper Avenue and Ussarian Peaz trees
shall be planed along South West End Street. All street tree plantings shall be evenly
spaced at about fifteen (15) to twenty (20) feet apart as determined based on consultation
between the Owner and the Pazks Department.
The Parks Department will perform a diagnostic test on the tree located adjacent
to the proposed northeast entry walk to determine if the tree should be removed prior to
the commencement of construction activities. If the abovementioned tree is prohibited
from removal by the Pazks Department, the Applicant shall redesign or remove the
walkway to Cooper Avenue. The Applicant shall also remove the stand of Aspen Trees
located near the northwestern corner of the property because they aze in declining health.
2.19 Material Representation and Commitment Service. All material
representations and commitments made by the Owner, as applicant, pursuant to the
development proposal approvals as herein awarded, whether in public hearing or
documentation presented before the Planning and Zoning Commission or City Council,
aze hereby incorporated in such plan development approvals and the same shall be
complied with as if fully set forth herein, unless amended by an authorized entity.
ARTICLE III
VESTED PROPERTY RIGHTS
Under Development Order of the City of Aspen Community Development
Department with an effective date of , 2006 (the "Development Order"),
the right to undertake and complete the d elopment and use of the 306 South Garmisch
Condominiums Subdivision pursuant to the terms and conditions of the site specific
development plan for the property is vested until ~ , 2009, and shall not
be altered, impaired, diminished or delayed by any subseq ent zoning or land use action
that is prohibited by Section 24-68-105(1) of the Colorado Revised Statutes. In
accordance with the requirements of CRS Section 24-68-103(b), a properly noticed
public hearing concerning the establishment of such vested rights for the property was
conducted on May 8, 2006. As authorized by CRS Section 24-68-102(4)(a), the City and
Owner agree that the site specific development plan for the 410 S. West End
Condominiums Subdivision consists of and includes, but is not limited to, the number,
permitted size, and configuration of the free mazket residential units, the AH Units, the
pazking spaces, and the other spaces and areas in the project, and all other matters set
forth in the Regulatory Approvals identified in Article I above, the Subdivision Plat, this
,,~. ,~ -.
Subdivision Agreement, and all other documents and plans recorded concurrently
therewith. For purposes of this Article III, this Subdivision Agreement shall be
considered a "development agreement" as that term is used in CRS Section 24-b8-104(2),
subject, however, to Ordinance No. L~ (Series of 2006) which places a moratorium on
the issuance of building permits for six (6) months from ~{~ ,2 Y'. s .G , 2006.
ARTICLE IV
FINANCIAL GUARANTEES
4.1 Landscape Guarantee. In order to ensure implementation and
maintenance of the landscape plan, the City Council may require the Owner to provide a
guarantee for no less than one hundred twenty-five (125) percent of the current estimated
cost of the landscaping improvements in the approved landscape plan, as estimated by the
City Engineer, to ensure the installation of all landscaping shown and the continued
maintenance and replacement of the landscaping for a period of two (2) years after
installation. The guarantee shall be in the form of a cash escrow with the city, or a bank
or savings and Loan association, or an irrevocable sight draft or letter of commitment
from a financially responsible lender and shall give the city the unconditional right upon
demand to partially or fully complete or pay for any improvements or pay any
outstanding bills, or to withdraw funds upon demand to partial]y or fully complete or pay
for any improvements or pay for any improvement or pay any outstanding bills for work
done thereon by any party.
As portions of the landscaping improvements are completed, the City Engineer
shall inspect them, and upon approval and acceptance, shall authorize the release of the
agreed estimated cost for that portion of the improvements, except that ten (10) percent
shall be withheld until all proposed improvements are completed and approved, and an
additional twenty-five (25) percent, which shall be retained until the improvements have
been maintained in a satisfactory condition for two (2) years.
4.2 Public Facilities Guarantee. In order to ensure installation of necessary
public facilities planned to accommodate the subdivision, the City Council shall require
the Owner to provide a guarantee for no less than one hundred (100) percent of the
current estimated cost of such public improvements, as estimated by the City Engineer.
The guarantee shall be in the form specified in Section 26.480.050(c) and may be drawn
upon by the City as specified therein. As portions of the public facilities improvements
are completed, the City Engineer shall inspect them, and upon approval and acceptance,
shall authorized the release of the agreed estimated cost for that portion of the
improvements, except ten (l0) percent which shall be withheld until all proposed
improvements are completed and approved.
4.3. Time of Guarantee Deposits. All guarantees shall be delivered to the
City at the time of issuance of a building permit for the project in form satisfactory to the
City.
IIIIIIII~IIIIIIIIIIIIilllllllllllVIIIIIIVIIIIIIIIIM~ 929/20080 0:311
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ARTICLE V
NON-COMPLIANCE AND REQUEST FOR AMENDMENTS OR EXTENSIONS
In the event that the City Council determines that Owner is not acting in
substantial compliance with the terms of this Subdivision Agreement, the City Council
shall notify Owner in writing specifying the alleged non-compliance and asking that
Owner remedy the alleged non-compliance within such reasonable time as the City
Council may determine, but not less than 30 days. If the City Council determines that
Owner has not complied within such time, the City Council may issue and serve upon
Owner a written order specifying the alleged non-compliance and requiring Owner to
remedy the same within thirty (30) days. Within twenty (20) days of the receipt of such
order, Owner may file with the City Council either a notice advising the City Council that
it is in compliance or a written petition requesting a hearing to determine any one or both
of the following matters:
(a) Whether the alleged non-compliance exists or did exist, or
(b) Whether a variance, extension of time or amendment to this
Subdivision Agreement should be granted with respect to any such non-
compliance which is determined to exist.
Upon the receipt of such petition, the City Council shall promptly schedule a
hearing to consider the matters set forth in the order of non-compliance and in the
petition. The hearing shall be convened and conducted pursuant to the procedures
normally established by the City Council for other hearings. If the City Council
determines by a preponderance of the evidence that anon-compliance exists which has
not been remedied, it may issue such orders as may be appropriate, including the
imposition of daily fines until such non-compliance has been remedied, the withholding
of permits and/or certificates of occupancy, as applicable; provided, however, no order
shall terminate any land use approval. The City Council may also grant such variances,
extensions of time or amendments to this Subdivision Agreement as it may deem
appropriate under the circumstances.
The parties expressly acknowledge and agree that the City Council shall not
unreasonably refuse to extend the time periods for performance hereunder if Owner
demonstrates by a preponderance of the evidence that the reasons for the delay(s) which
necessitate said extension(s) result from acts of God or other events beyond the
reasonable control of Owner, despite good faith efforts on its part to perform in a timely
manner.
ARTICLE VI
GENERAL PROVISIONS
I IIIIII VIII IIIIII IIII IIIIII IIIIII VIII III VIII IIII IIII 08%29/2006 10 3
JRNICE K VOS CRUDILL PITKIN COUNTY CO R 61.00 D 0.00
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6.1 The provisions hereof shall be binding upon and inure to the benefit of
Owner and City and their respective successors and assigns.
6.2 This Subdivision Agreement shall be subject to and construed in
accordance with the laws of the State of Colorado.
6.3 If any provision of this Subdivision Agreement or any paragraph,
sentence, clause, phrase, word, or section or the application thereof in any circumstance
is invalidated, such invalidity shall not affect the validity of the remainder of this
Subdivision Agreement, and the application of any such provision, pazagraph, sentence,
clause, phrase, word, or section in any other circumstance shall not be affected thereby.
6.4 This Subdivision Agreement and any Exhibits attached hereto contain the
entire understanding between the parties hereto with respect to the transactions
contemplated hereunder. Owner, its successors or assigns, may, on its own initiative,
petition the City Council for an amendment to this Subdivision Agreement or for an
extension of one or more of the time periods required for performance hereunder. The
City Council shall not unreasonably deny such petition for amendment or extension after
considering all appropriate circumstances. Any such amendments or extensions of time
shall only become effective upon the execution by all parties hereto that are affected by
the proposed amendment.
6.5 Numerical and tide headings contained in this Subdivision Agreement are
for convenience only, and shall not be deemed determinative of the substance contained
herein. As used herein, where the context requires, the use of the singular shall include
the plural and the use of any gendershall include all genders.
6.6 Upon execution of this Subdivision Agreement by all parties hereto, City
agrees to approve and execute the Subdivision Plat and to accept the same for recordation
in the Office of the Clerk and Recorder of Pitkin County, Colorado, upon payment of the
recordation fees by Owner.
6.7 Notices to be given to the parties to this Subdivision Agreement shall be
considered to be given if hand delivered or if deposited in the United States Mail to the
parties by registered or certified mail at the addresses indicated below, or such other
addresses as may be substituted upon written notice by the parties or their successors or
assigns:
CITY: City of Aspen
City Manager
130 South Galena Street
Aspen, CO 81611
OWNER: c/o John R. Provine
P.O. Box 8769
Aspen, CO 81612
527924
1111111 IIIN IIIiN IIII 111111 IIINI Illll III 111111 III 1111 m 0 9 ~/ Z 9 /~Z B0 ~ 10? 31 I 1
s'^,.
ro,
With Copy to: Leonazd M. Oates, Esq.
Oates, Knezevich & Gazdenswartz, P.C.
533 E. Hopkins Avenue
Aspen, CO 81611
6.8 This Subdivision Agreement may be executed in counterparts, in which
case all such counterparts together shall constitute one and the same instrument which is
binding on all of the parties thereto, notwithstanding that all of the parties are not
signatory to the original or the same counterpart. Facsimile signatures shall be treated as
original signatures hereon.
6.9 The terms, conditions, provisions and obligations herein contained shall be
deemed covenants that run with and burden the Hyman Apartments Condominiums
Subdivision and any and all owners thereof or interests therein, their respective
successors, grantees or assigns, and further shall inure to the benefit of and be specifically
enforceable by or against the parties hereto, their respective heirs, personal
representatives,successors, grantees or assigns.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
as of the day and yeaz first above written.
CITY: City of Aspen, Colorado, a Colorado
municipal cor ra '
Y~
len derv Mayor
Atte t:
Kathryn S. I' h, City Gl rk
APPROVED AS TO FORM:
~9/// L~~
tS~hn ~ro~ Attorney
OWNER:
IIIIIIIIIIIIIIIIIIIIII IIIIII IIIIIIIIIN III IIIIII IIIIIII0 089 99 0 0010:311
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STATE OF COLORADO )
COUNTY OF PITKIN )
Soderling Living Trust U/D/T February 20,
1996
The foregoing instrument was acknowledged before me this as day of
2006, by Helen Klanderud as Mayor and Kathryn S. Koch as City
Clerl the City of Aspen, Colorado, a municipal corporation.
Witness my hand and officia~l~se/a11. /~~ ;p'~ C~.'~.°~;
My commission expires:- ~Q " _ / ~ ~. C
( ~~ `: <
STATE OF COLORADO )
)ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this ~~ day of
!fi U mil" 2006, by John R. Provine.
Witness my hanc
My commission
STATE OF ~ ~
)ss.
COUNTY OF Rr~~A! )
The regoing instrument was acknowledged before me this ~LTday of
2006, by Ronald E. Soderling as Tr~ustee of the Soderling Living
Trust February 20, 1996. .~..Ad~7a~
Witness my hand and offici se
My commission expires: N Ut •~- - ~'yo
~~ ~ .
Notary Pub ~ .
II `~ ~~
I IIIIIIEIIIII III~II III IIIIII'lll~l III III I~I~II III I~,I 5 /29/~20808810z331
12
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ORDINANCE N0.9
(SERIES OF 2006)
AN ORDINANCE OF THE ASPEN CITY COUNCIL APPROVING WITH
CONDITIONS, THE COOPER APARTMENTS SUBDIVISION, SPECIAL
REVIEW TO VARY THE AFFORDABLE HOUSING PARKING
REQUIREMENTS, AND CONDOhIINIUhIIZATION TO CONSTRUCT A MULTI-
FAMILYBUILDING CONSISTING OFTWOFREE-MARKET RESIDENTIAL
UNIT'S AND THREE DEED-RESTRICTED AFFORDABLE HOUSING UNITS ON
THE PROPERTY LOCATED AT 410 S. WEST END STREET, LOTS A AND B,
BLOCK 118, CITY OF ASPEN, PITKIN COUNTY, COLORADO.
Parcel ID: 2737-182-91-OOl
WHEREAS, the Community Development Departrnent received an application
from John R. Provine and Ronald E. Soldering, Trustee -Soldering Living Trust, Inc,
represented by Vann Associates, .requesting approval of Subdivision, Growth
Management Review for the development of affordable housing, and
condominiumization to construct amulti-family building consisting of two free-market
residential units and three deed-restricted affordable housing units on the property located
at 410 S. West End Street; and,
WHEREAS, the subject property is zoned RMF (Residential Multi-Family); and,
WHEREAS, upon review of the application, and the applicable code standards,
the Community Development Departrnent recommended approval, with conditions, of the
proposed subdivision and associated land use requests; and,
WHEREAS, during a duly noticed public heazing on Febntary 7, 2006, the
Planning and Zoning Commission approved Resolution No. 5, Series of 2006, by a five to
zero (5-O) vote, approving with conditions, a growth management review for the
development of affordable housing, and recommending that City Council approve with
conditions, the proposed subdivision and condortriniumization to constntet amulti-family
building consisting of two (2) free-mazket residential units and two (2) deed-restricted
affordable housing units located on the property located at 410 S. West End Street, Lots
A and B, Block 118, City and Townsite of Aspen; and,
WHEREAS, during a duly noticed public hearing on March 27, 2006, the Aspen
City Council expressed concerns related to the project's compliance with the goals and
objectives set forth in the Aspen Area Community Plan and continued the public hearing
to April 24, 2006; and,
WHEREAS, the Applicant amended the proposal to consist of two (2) free
market residential units and three (3) deed restricted affordable housing units; and,
WHEREAS, during a continued public hearing on April 24, 2006, the Aspen City
Council continued review of the proposal to May 8, 2006; and,
WHEREAS, during a continued public hearing on May 8, 2006, the Aspen City
Council approved Ordinance No. 9, Series of 2006, by a five to zero (5-0) vote, approving
with wnditions, the proposed subdivision, special review to vary the affordable housing
parking requirements, and condominiumization to conshvct a mold-family building
consisting of two (2) free-market residential units and three (3) deed-restricted affordable
housing units located on the property located at 410 S. West End Street, Lots A and B,
Block 118, City and Townsite of Aspen; and,
WHEREAS, the Aspen City Council has reviewed and considered the development
proposal under the applicable provisions of the Municipal Code as identified herein, has
reviewed and considered the recommendation of the Planning and Zoning Commission, the
Community Development Director, the applicable referral agencies, and has taken and
considered public comment at a public hearing; and,
WHEREAS, the City Council finds that the development proposal meets or exceeds
all applicable development standards and that the approval of the development proposal,
with conditions, is consistent with the goals and elements of the Aspen Area Community
Plan; and,
WHEREAS, the City Council finds that this Ordinance furthers and is necessary for
the promotion ofpublic health, safety, and welfare.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO THAT:
Section L•
Pursuant to the procedures and standards set forth in Section 26 of the City of Aspen
Municipal Code, the Aspen City Council hereby approves with conditions, the Cooper
Apartments Subdivision, Special Review to Vary the Pazking Requirements, and
Condominiumization in order to construct amulti-family building consisting of two (2)
free-mazket residential units and three (3) deed-restricted affordable housing units on the
property located at 410 S. West End Street, Lots A and B, Block 118, City and Townsite
of Aspen.
Section 2: Plat anti Agreement
The Applicant shall record a subdivision plat and agreement that meets the requirements of
Land Use Code Seotion 26.480, Subdivision, within 180 days of approval. The final
Condominium Plat may be approved and signed by the Community Development Director
upon substantial completion of construction.
Section 3: Buildine Permit Aoolication
The building permit application shall include the following:
a. A copy of the final Ordinance and P&Z Resolution.
a. The conditions of approval printed on the cover page of the building permit set.
b. A completed tap permit for service with the Aspen Consolidated Sanitation District
-- --
c. A drainage plan, including an erosion control plan, prepared by a Colorado licensed
Civil Engineer, which maintains sediment and debris on-site during and after
construction. If a Bound recharge system is required, a soil percolation report will
be required to correctly size the facility. A 5-yeaz storm frequency should be used
in designing any drainage improvements.
d. An excavation-stabilization plan, construction management plan, and drainage and
soils reports pursuant to the Building Department's requirements. The construction
management plan shall include an identification of construction hauling routes,
construction phasing, and a construction traffic and parking plan for review and
approval by the City Engineer and Streets Department Superintendent. The
construction management plan shall also identify that the adjacent sidewalks will be
kept open and maintained throughout construction.
e. A fugitive dust control plan to be reviewed and approved by the City Engineering
Department.
A detailed excavation plan that utilizes vertical soil stabilization techniques for
review and approval by the Community Development Engineer.
g. Accessibility and ADA requirements shall meet the building code requirements
Section 4: Dimensional Requirements
The redevelopment of the building as presented complies with the dimensional
requirements of the Residential Multi-Family (RMF) Zone District. The structure shall
meet all of the required Residential Design Standards applicable to amulti-family
building. Compliance with these requirements will be verified by the City of Aspen
Zoning OfT:cer at the time of building permit submittal.
Section 5: Trash/Utillri Service Area
The trash enclosure, located adjacent to the side property line and accessed firm the
alley, shall not use a dumpster style trash container. The trash containers shall be wildlife
proof.
Section 6: Sidewalks Curb and Gutter
The sidewalks and crosswalk ramps adjacent to the property shall be upgaded to meet
City Engineer's requirements and ADA requirements prior to issuance of a certificate of
occupancy on any of the units within the development. Additionally, the sidewalk along
South West End Street shall be reconstructed so that it is detached from the curb creating
a five (5) wide landscaointt buffer. The Applicant shall also rtpatr any curb and gutter
adjacent to the property that is deemed to be in disrepair by the City Engineer before a
certificate of occupancy is issued for any of the units within the development.
Section 7: Relocation of Utfliri Pedestal
The Applicant shall relocate the utility pedestal that cur-ently exists in the Block 118
alleyway near its intersection with South West End Street. The utility pedestal shall be
~~
relocated further north in the South West End Street Right-of--Way since it serves
multiple properties.
Sectiou 8: Affordable Housing
The affordable housing unite shall be in compliance with the Aspen/Pitkin County
Housing Authority's Employee Housing Guidelines. The Applicant shall record a deed
restriction on each of the affordable housing units at the time of recordation of the
condominium plat and prior to the issuance of a Certificate of occupancy for the building,
classifying the units as Category 2 units. Included in the governing documents shall be
language reflecting the potential for the units to become ownership units.
If the Applicant chooses to deed restrict the affordable housing units as rental units, the
Applicant shall convey a I/10 of a percent, undivided interest in the units to the
Aspen/Pitlun County Housing Authority prior to the issuance of a certificate of
occupancy on any portion of the building. The units may be deed-restricted as rental
units, but the units shall become ownership units at such time as the owners would
request a change to "for-sale" units or at such time as the Aspen/Pitkin County Housing
Authority deems the units to be out of compliance with the rental occupancy
requirements in the Affordable Housing Guidelines for a period of more than year. A
total of two (2) off-streetparking spaces shall be allocated and reserved for the atfordable
' - -- ---
Section 9: Fire Mitigation
The Applicant shall install a fire sprinkler system and alarm system that meets the
requirements of the Fve Marshal.
Section 10: Water Department Requirements
The Applicant shall comply with the City of Aspen Water System Standards, with Title
25, and with the applicable standards of Title 8 (Water Conservation and Plumbing
Advisory Code) of the Aspen Municipal Code, as required by the City of Aspen Water
Department. Each of the units within the building shall have individual water meters.
Section 11: Sanitatiou District Requirements
The Applicant shall comply with the Aspen Consolidated Sanitation District's rules and
regulations. No clear water connections (roof, foundation, perimeter, patio drains) to
ACSD lines shall be allowed. On-site utility plans require approval by ACSD. Below grade
development may require installation of a pumping system. One tap is allowed for each
building. Shared service line agreements will be required where more than one unit is served
by a single service line. Permanent improvements are prohibited in sewer easements or
right of ways. Landscaping plans will require approval by ACSD where soft and hard
landscaping may impact public ROW or easements to be dedicated to the district.
Section li: Electrical Department Requirements
The Applicant shall have an electric connect load summary conducted by a licensed
electrician in order to determine if the existing transformer on the neighboring property
has sufficient capacity for the redevelopment. If a new supplemental transformer is
required to be installed on the subject property, the Applicant shall provide for a new
transformer and its location shall be approved by the Community Development
Depaztment prior to installation. The Applicant shall dedicate an easement to allow for
City Utility Personnel to access the supplemental transformer for maintenance purposes,
if a supplemental transformer is installed. If after the subdivision plat is recorded and in
the event an easement is required, then the Community Development Director shall
review and approve the easement on the condominium plat.
Section 13: Erterior Li¢htlna
All exterior lighting shall meet the requirements of the City's Outdoor Lighting Code
pursuant to Land >.Tse Code Section 26.575.150, Outdoor lighting.
Section 14: School Laada DedlcaHon Fee
Pursuant to Land Use Code Section 26.630, School lands dedication, the Applicant shall
pay afee-in-lieu of land dedication prior to building permit issuance. The City of Aspen
Community Development Depaztment shall calculate the amount due using the
calculation methodology and fee schedule in effect at the time of building permit
submittal. The Applicant shall provide the market value of the land including site
improvements, but excluding the value of structures on the site.
Sectlon 15: Park Development Impact Fee
Pursuant to Land Use Code Section 26.610, Park Development Impact Fee, the Applicant
shall pay a park development impact fee prior to building permit issuance. The Park
Development Impact Fee schedule is subject to change and the actual fee shall be
calculated according to the fee schedule in effect at the time of building pemrit submittal
as set forth in Land Use Code Section 26.610, Park Development Impact Fee.
Section 16: Impact Fees
All other impact fees, as applicable, at the time of building permit submission shall be
paid prior to the issuance of a building permit.
Section 17: Lapdscapipe
An approved tree removal permit and excavation under the drip line permit is required
prior to submitting the building permit. The Parks Department approval will be
contingent on the approved tree permit. A detailed tree protection plan is required as part
of the building permit submittal and should include fence details and fence locations as
well as the following language, "A construction fence shall be installed at the drip line of
each individual or grouping of trees remaining on site." No excavation, storage of
materials, storage of construction backfill, storage of equipment, and foot or vehicle
traffic will be allowed within the tree protection fence.
Contact the City of Aspen Pazks DeparUnent for inspection of the fence before any
construction. activities commence. Specific excavation techniques to be approved by the
Parks Department shall be required along the entire length of the Cooper Avenue
excavation and vertical excavation shall be required along the length of South West End
Street excavation. No over digging is allowed on the South West End Street and Cooper
Avenue excavations.
~.
After inspection and approval of the fence location, the fence cannot be moved or
removed without pemtission from the Pazks Department or until the project receives the
Certificate of Occupancy." Improvements to both of the adjacent City ROW's shall
include irrigation, new sod and soil, and new street tree plantings along East Cooper
Avenue and South West End Street meeting the approval of the Parks Department.
Autumn Blaze Maple bees shall be planted along Cooper Avenue and Ussarian Peaz trees
shall be planted along South West End Street. All street tree plantings shall be evenly
spaced at about fifteen (1 S) to twenty (20) feet apart.
The Parks Department will perform a diagnostic test on the tree located adjacent to the
proposed northeast entry walk to determine if the tree should be removed prior to the
commencement of construction activities. If the abovementioned tree is prohibited from
removal by the Parks Department, the Applicant shall redesign or remove the walkway to
Cooper Avenue. The Applicant shall also remove the stand of Aspen Trees located near
the northwestern comer of the property because they are in declining health.
Section 18: Vested Ri¢hts
The development approvals granted herein shall constitute asite-specific development plan
vested for a period of three (3) years from the date of issuance of a development order.
However, any failure to abide by any of the temrs and conditions attendant to this
approval shall result in the forfeiture of said vested property rights. Unless otherwise
exempted of extended, failure to properly record all plats and agreements required to be
recorded, as specified herein, within 180 days of the effective date of the development
order shall also result in the forfeiture of said vested property rights and shall render the
development order void within the meaning of Section 26.104.050 (Void permits).
Zoning that is not part of the approved site-specific development plan shall not result in
the creation of a vested property right.
No later than fourteen (14) days following final approval of all requisite reviews necessary
to obtain a development order as set forth in this Ordinance, the City Clerk shall cause to be
published in a newspaper of general circulation within the jurisdictional boundaries of the
City of Aspen, a notice advising the general public of the approval of a site specific
development plan and creation of a vested property right pursuant to this Title. Such notice
shall be substantially in the following fomr:
Notice is hereby given to the general public of the approval of a site specific
development plan, and the creation of a vested property right, valid for a period of three
(3) years, pursuant to the Land Use Code of the City of Aspen and Title 24, Article 68,
Colorado Revised Statutes, pertaining to the following described property: Property
Nothing in this approval shall exempt the development order from subsequent reviews
and approvals required by this approval of the general rules, regulations and ordinances
or the City of Aspen provided that such reviews and approvals aze not inconsistent with
this approval.
-'~ _~
The approval granted hereby shall be subject to all rights of referendum and judicial
review; the period of time permitted by law for the exercise of such rights shall not begin
to run until the date of publication of the notice of final development approval as required
under Section 26.304.070(A). The rights of referendum shall be limited as set forth in the
Colorado Constitution and Ute Aspen Home Rule Charter.
Section 19:
This Ordinance shall not affect any existing litigation and shall not operate as an abatement
of any action or proceeding now pending under or by virtue of the ordinances repealed or
amended as herein provided, and the same shall be construed and concluded under such
prior ordinances.
Section 20:
If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any
reason held invalid or unconstitutional in a court of competent jurisdiction, such portion
shall be deemed a separate, distinct and independent provision and shall not affect the
validity of the remaining portions thereof
Section 21:
All material representations and commitments made by the Applicant pursuant to the
development proposal approvals as herein awarded, whether in public hearing or
documentation presented before the Planning and Zoning Commission or City Council, are
hereby incorporated in such plan development approvals and the same shall be complied
with as if fully set forth herein, unless amended by an authorized entity.
Section 22:
A public hearing on the ordinance shall be held on the 27th day of March, 2006, in the City
Council Chambers, Aspen City Hall, Aspen, Colorado, fifteen (15) days prior to which
hearing a public notice of the same shall be published in a newspaper of general circulation
within the City of Aspen.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City
Council of the City of Aspen on the 27th day of February, 2006.
le eruct, Mayor
Attest:
Kathryn S. h, City Clerk ~"~•~-
FINALLY, adopted, Passed and approved this 8th day of May, 2006.
Attest:
Kathryn S. I City Clerk
Approved as to form:
el Mayor
.-~
~.--Johtf Worcester, City Attorney
,~~,
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ALTA Commitment (6/17/06)
Stewart Title Guaranty Company, a Texas Corporation ("Company"), for a valuable consideration,
commits to issue its policy or policies of title insurance, as identified in Schedule A, in favor of the
Proposed Insured named in Schedule A, as owner or mortgagee of the estate or interest in the land
described or referred to in Schedule A, upon payment of the premiums and chazges and compliance with
the Requirements; all subject to the provisions of Schedules A and B and to the Conditions of this
Commitment.
This 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 by the Company.
All liability and obligation under this Commitment shall cease and terminate six months after the
Effective Date or when the policy or policies committed for shall issue, whichever first occurs, provided
that the failure to issue the policy or policies is not the fault of the Company.
The Company will provide a sample of the policy form upon request.
This commitment shall not be valid or binding until countersigned by a validating officer or authorized
signatory.
ALTA Commitment Form
OMMITMENT FOR TITLE INSURANCE
Issued by
~stewart
title guaranty company
IN WITNESS WHEREOF, Stewart Title Guazanty Company has caused its corporate name and seal to
be hereunto affixed by its duly authorized officers on the date shown in Schedule A.
Countersigned:
Aa~llpnu~ IRO®uMe
V~VVrQ~
title guaranty company
ryu`~t FF.CU,F~
-1- ~e
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.y
T~~ l F % A w,r+''
°~v. ns~
C- .,\
/ Senior Chairman of t e Board
1 ~/,/1. n IA.
Stewaz[ Title of Colorado, Inc.
Aspen Division
620 East Hopkins Avenue
Aspen, Colorado 81611
Phone:970-925-3577
Fax:970-925-1384
Order Number: 909031
Chairman of the Board
~;?,~~~_
President
ALTA Conunitment (6/17/06)
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COMMITMENT FOR TITLE INSURANCE
SCHEDULE A
1. Effective Date: Apri124, 2009, at 7:30 A.M.
2. Policy or Policies To Be Issued:
(a) A.L.T.A. Owner's (Extended)
Proposed Insured:
DAVID GARDNER and JODY GARDNER
(b) A.L.T.A. Loan
Order Number: 909031
Amount of Insurance
$6,500,000.00
3. The estate or interest in the land described or referred to in this Commitment and covered herein is:
Fee Simple
4. Title to the referenced estate or interest in said land is at the effective date hereof vested in:
410 WEST END, LLC, A COLORADO LIMITED LIABILITY COMPANY
5. The land referred to in this Commitment is described as follows:
See Attached Legal Description
Purported Address:
410 South West End Street
Aspen, Colorado 816 ] 1
Statement of Chazges:
These charges are due and payable before a Policy can
be issued:
Reissue Rate
2006 Owner's Policy:
2006 Owner's Extended:
Tax Certificate:
$5276.00
$150.00
$20.00
Order Number: 909031 'r
ALTA Commitment (6/17/06) - Schedule A r SteWGY t
Title Officer. Melanie Lang L~title guaranty company
Page t of 2
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4. ~
SCHEDULE A
LEGAL DESCRIPTION
Unit 1
410 WEST END TOWNHOMES CONDOMINIUMS,
A COMMON INTEREST COMMUNTfY
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. 1
According to the Condominium Map thereof recorded in Plat Book _ at Page _ and the
Condominium Declazation for 410 West End Townhomes Condominiums recorded as Reception
No.
COUNTY OF PTI'KIN, STATE OF COLORADO
NOTE: THE LEGAL DESCRIPTION WILL BE CHANGED UPON COMPLIANCE WITH
THE CONDOMINIUM PLAT AND DECLARATION REQUIRED HEREIN
FURTHER NOTE: THE CONTRACT REFERS TO UNIT 1, HOWEVER THE
CONDOMINHJM DECLARATION REFERS TO THE UNITS AS A, B, C, D, E
Order Number: 909031 ~~~
ALTA Commitment (6/17/06) -Schedule A
Title Officer. Melanie Lang title guaranty company
Page 2 of 2
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COMMITMENT FOR TITLE INSURANCE
SCHEDULE B -Section 1
REQUIREMENTS
Order Number: 909031
The following are the requirements to be complied with:
Payment to or for the account of the grantor(s) or mortgagor(s) of the full consideration for the
estate or interest to be insured.
2. Proper instrument(s) creating the estate or interest to be insured must be executed and duly filed for
record.
3. Evidence satisfactory to Stewar[ Title Guazanty Company of payment of all outstanding taxes and
assessments as certified by the County Treasurer.
4. Execution of affidavit as to Debts and Liens and its return to Stewart Title Guaranty Company.
5. Evidence satisfactory to Stewart Title Guazanty Company, furnished by the Office of the Director
of Finance, City of Aspen, that the following taxes have been paid, or that conveyance is exempt
from said taxes:
(1) The "Wheeler Real Estate Transfer Tax" pursuant to Ordinance No. 20 (Series of 1979) and (2)
The "Housing Real Estate Transfer Tax" pursuant to Ordinance No. 13 (Series of 1990).
6. Relating to 410 West End, LLC, The Company requires for its review the following:
Copy of the Operating Agreement and the regulations of the limited liability company and any
amendments thereof
No[e: The Colorado Secretary of State shows 410 West End, LLC in good standing.
Note: Statement of Authority recorded February 6, 2009, discloses the following persons as those
authorized to transact business on behalf of said entity: John R. Provine. If there have been any
amendments or changes to the management of the entity, written documentation reflecting the
changes and a new Statement of Authority will be required.
7. Condominium Plat of 410 West End Condominiums Subdivision which depicts Unit 1.
8. Condominium Declaration for 410 West End Condominiums Subdivision which includes Unit 1.
9. Partial Release of Deed of Trust dated July 17, 2006, executed by 410 West End, LLC, to the
Public Trustee of Pitkin County to secure an indebtedness in the amount of $400,000.00 in favor of
John R. Provine, recorded September 14, 2006 as Reception No. 528610.
NOTE: Subordination Agreement recorded December 16, 2008 as Reception No. 555072
subordinating the above deed of trust to the deed of trust recorded as Reception No. 555599.
Order Number: 909031 ~C~Q\A//~' ~/{'
ALTA Commitment (6/17/06) Schedule B l V LV ~I ~I f..~~ ~
Page 1 of 2 title guaranty company
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10. Partial Release of Deed of Tmst dated July 17, 2006, executed by 410 West End, LLC, to the
Public Trustee of Pitkin County to secure an indebtedness in the amount of $400,000.00 in favor of
Ronald E. Soderling, Trustee Of The Soderling Living Trust U/D/T February 20, 1996, recorded
September 14, 2006 as Reception No. 528611.
NOTE: Subordination Agreement recorded May 29, 2007 as Reception No. 538315 subordinating
the above deed of trust to the deed of trust recorded as Reception No. 537458.
NOTE: Subordination Agreement recorded January 9, 2009 as Reception No. 555598
subordinating the above deed of tmst to the deed of trust recorded as Reception No. 555599.
11. Partial Release of Deed of Tmst dated May 4, 2007, executed by 410 West End LLC, a Colorado
Limited Liability Company, to the Public Trustee of Pitkin County to secure an indebtedness in the
amount of $7,973,000.00 in favor of Alpine Bank, a Colorado banking corporation, recorded May
8, 2007 as Reception No. 537458.
NOTE: Modification Agreement recorded November 24, 2008 as Reception No. 554563.
12. Partial Release of Deed of Tmst dated November 18, 2008, executed by 410 West End LLC, a
Colorado Limited Liability Company, to the Public Trustee of Pitkin County to secure an
indebtedness in the amount of $820,000.00 in favor of Alpine Bank, a Colorado banking
corporation, recorded January 9, 2009 as Reception No. 555599.
13. ®Receipt of and review by the Company of the following documentation:
[a] the name of the contractor, and whether said contractor is bonded
[b] a comprehensive list of all individuals and entities who supplied work and/or material affecting
the subject property; and lien waivers from all of those individuals and entities
[c] financial statements from the owner(s) and/or contractor for our financial officers to review
[d] an Indemnity I Agreement signed by the owner and/or contractor, indemnifying against liens
arising from , or relating to, labor, services and/or materials furnished to the land
[e] copy of the Certificate of Occupancy issued by the County of Pitkin
NOTE: Approval of mechanic lien coverage must be obtained from authorized underwriting
personnel of Stewart Title Guazanty Company.
14. Deed from vested owner(s) vesting fee simple title in the purchaser(s).
Note: notation of the legal address of the grantee must appeaz on the deed as per 1976 amendment
to statute on recording of deeds CRS 38-35-109 (2).
Order Number: 909031 ~M W
ALTA Commitment (6/17!06) ScheduleBl ~7 ~~i
Page 2 of 2 title guaranty company
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COMMITMENT FOR TITLE INSURANCE
SCHEDULE B -Section 2
EXCEPTIONS
Order Number: 909031
The policy or policies to be issued will contain exceptions to the following unless the same are
disposed of to the satisfaction of the Company:
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. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the
title that would be disclosed by an accurate and complete land survey of the Land and 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. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing
the public records or attaching subsequent to the effective date hereof, but prior to the date
the proposed insured acquires of record for value the estate or interest or mortgage thereon
covered by this commitment.
6. Unpatented mining claims, reservations or exceptions in patents, or in acts authorizing the
issuance thereof.
7. Water rights, claims or title to water.
8. Any and all unpaid taxes and assessments and any unredeemed tax sales.
9. The effect of inclusions in any general or specific water conservancy, fire protection, soil
conservation or other district or inclusion in any water service or street improvement area.
10. Exceptions and Mineral Reservations as contained in Patent to Aspen Townsite recorded March 1,
1897 in Book 139 at Page 216 as Reception No. 60156.
11. Resolution No. 8 (Series of 2006), a Resolution of the City of Aspen Planning and Zoning
Commission Approving with Conditions, a Growth Management Review for Affordable Housing,
and Recommending that City Council Approve with Conditions, the Cooper Apartments
Subdivision and Condominiumization to Construct aMulti-Family Building Consisting of Two
Free-Market Residential Units and Two Deed-Restricted Affordable Housing Units on the
Property Located at 410 S. West End Street, Lots A and B, Block 118, City of Aspen, Pitkin
County, Colorado as set forth in instrument recorded May 19, 2006 as Reception No. 524235.
Order Number: 909031 ~~}~ - ~~.~:
ALTA Commitment (6/l9/06) Schedule B 2 wV~ `
Page 1 of 2 title guaranty company
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12. Ordinance No. 9 (Series of 2006), An Ordinance of the Aspen City Council Approving with
Conditions, the Cooper Apaztments Subdivision, Special Review to Vazy the Affordable Housing
Pazking Requirements, and Condominiumization to Constmct aMulti-Family Building Consisting
of Two Free-Market Residential Units and Three Deed Restricted Affordable Housing Units on the
Property Located at 410 S. West End Street, Lots A and B, Block 118, City of Aspen, Pitkin
County, Colorado as set forth in instrument recorded August 29, 2006 as Reception No. 527923.
13. Subdivision Agreement for 410 West End Condominiums Subdivision as set forth in instrument
recorded August 29, 2006 as Reception No. 527924.
14. All matters shown on Subdivision Plat of 410 West End Condominiums Subdivision recorded
August 29, 2006 in Plat Book 81 at Page 2 as Reception No. 527926.
I5. All matters shown on the Condominium Plat of 410 West End Condominiums recorded
16. Condominium Declaration for 410 West End Condominiums recorded
NOTE: Exceptions 1 and 4 may be deleted from the policies, provided the seller and of
buyer/borrower execute the Company' s affidavits, as required herein, and the Company approves
such deletions. Exceptions 2 and 3 may be deleted from the policies, provided the Company
receives and approves the survey or survey affidavit if required herein. Exception 5 will not appeaz
on the policies, provided the Company, or its authorized agent, conducts the closing of the
proposed transaction and is responsible for the recordation of the documents.
Order Number: 909031 ~~,{.^~ ~ ~~ r~
ALTA Commitment (fi/17/Ofi) Schedule B 2 ~~~/~/~~
Page 2 of 2 title guaranty company
MASTER DEED RESTRICTIONAGREEMENT
FOR THE OCCUPANCYAND RESALE OF
410 WEST END CONDOMINIUMS
THIS MASTER DEED RESTRICTION AGREEMENT FOR THE OCCUPANCY AND
RESAL OF 410 WEST END CONDOMINIUMS (the "Agreement") is made and entered into this ~'
day of a 2009, by 410 WEST END, LLC, a Colorado limited liability company, (hereinafter
referred to as " eclazant"), for the benefit of the parties and enforceable by the ASPEN/PITKIN COUNTY
HOUSING AUTHORITY (hereinafter refereed to as "APCHA"), a duly constituted multi-jurisdictional
Housing Authority established pursuant to the THIRD AMENDED AND RESTATED
INTERGOVERNMENTAL AGREEMENT by and between the City of Aspen, Colorado (the "C~") and
Pitkin County, Colorado (the "Coon "), dated October 28, 2002 and recorded at Reception No. 477066 on
January 8, 2003, of the records of the Pitkin County Clerk and Recorder's Office.
WITNESSETH:
WHEREAS, Declarant owns the real property described in Exhibit "A" attached hereto and
incorporated herein (the "Property") together with certain improvements thereon (the "Project"), which real
property and improvements includes a total of five (5) condominium units (collectively, the "Units");
WHEREAS, as a condition of the approval granted by the Aspen City Council for subdivision
approval of the Property, the Declarant is required to enter into this Agreement, and Declarant and
Declarant's successors in interest with respect to the Property are required to be bound by this Agreement;
and
WHEREAS, two (2) of the Units shall be "free market" condominium units (one of which is
described as "Free Market Unit I" and the other of which is described as "Free Market Unit 2", and
collectively, both of which are referred to herein as the "Free Market Units");
WHEREAS, three (3) of the Units shall be "deed restricted" condominium units (one of which is
referred to as "Deed Restricted Unit 3", one of which is refereed to as "Deed Restricted Unit 4", and the
other of which is refereed to as "Deed Restricted Unit 5", and collectively, all of which are referred to herein
as the "Deed Restricted Units");
WHEREAS, after the date of this Agreement, Declarant will convey three of the Units (consisting
of Free Market Unit 1, Deed Restricted Unit 3 and Deed Restricted Unit 4) to a single owner owning all
three such Units, and Declarant will separately convey the other two Units (consisting of Free Market Unit 2
and Deed Restricted Unit 5) to another owner owning both such Units;
WHEREAS, for so long as the owner of Free Market Unit 1 from time to time is also the owner of
both Deed Restricted Unit 3 and Deed Restricted Unit 4, both Deed Restricted Unit 3 and Deed Restricted
Unit 4 shall each be a "rental unit" as such teen is defined herein, and any conveyance of Deed Restricted
Unit 3 or Deed Restricted Unit 4 to any party other than the then-owner of Free Market Unit 1 from time to
time shall constitute the conversion of such Deed Restricted Unit 3 and Deed Restricted Unit 4 into a "sales
unit" and such Deed Restricted Unit 3 and Deed Restricted Unit 4 shall thereafter be sold only to a
"Qualified Buyer" thereof (as such term is defined herein);
WHEREAS, for so long as an owner of Free Market Unit 2 from time to time is also the owner of
Deed Restricted Unit 5, Deed Restricted Unit 5 shall be a "rental unit" as such term is defined herein, and
{0012U96.DOC / 6)Macintosh HD:Users:oatesknezevichgardenvichkellypc:Library:Mail Downloads:msv_306 S Gartnisch (00121396-6).DOC
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any conveyance of Deed Restricted Unit 5 to any pally other than the then-owner of Free Market Unit 2
from time to time shall constitute the conversion of such Deed Restricted Unit 5 into a "sales unit" and such
Deed Restricted Unit 5 shall thereafter be sold only to a "Qualified Buyer" thereof (as such term is defined
herein); and
WHEREAS, Declarant agrees to restrict the use and/or transfer of the Deed Restricted Units to
"Qualified Tenants/Buyers," as that term is defined in this Agreement, who fall within the Category 2
income range established and adopted by the APCHA from time to time in its Aspen/Pitkin County
Employee Housing Guidelines (hereinafter the "Guidelines"). In addition, the Declarant agrees that this
Agreement shall constitute a resale agreement setting forth the maximum resale price ("Maximum Resale
Price") for which Deed Restricted Unit 3 and Deed Restricted Unit 4 may be sold to any transferee who is
not also simultaneously the owner of Free Market Unit 1, and for which Deed Restricted Unit 5 may be sold
to any transferred who is not also simultaneously the owner of Free Market Unit 2. Finally, by this
Agreement, Declazant and its successors-in-interest, hereby restrict the Deed Restricted Units against use
and occupancy inconsistent with this Agreement.
Concurrently with the execution of this Agreement, Declarant shall convey aone-tenth of one
percent interest in each of the Deed Restricted Units to APCHA. Said one-tenth of one percent interest is
hereinafter referred to as the "APCHA Interest." The conveyance of the APCHA Interest shall be expressly
subject to the understanding and agreement that: a) ownership of the APCHA Interest only gives the
APCHA the right to enforce the deed restrictions on the Deed Restricted Units, and does not give the
APCHA any authority or rights that are not specifically set forth in this deed restriction; b) in all other
respects, the APCHA shall be deemed to have no ownership rights or responsibilities in connection with the
Deed Restricted Units, and the record owner of the remaining interest in the Deed Restricted Units shall
have full right and authority to lease, encumber, or otherwise deal with the Deed Restricted Units as if such
owner held a 100% interest therein; c) APCHA shall have no liability to third persons arising solely out of
its ownership of the APCHA Interest, and the party conveying the APCHA Interest shall indemnify APCHA
from and against any losses or liabilities arising solely out of its ownership of the APCHA Interest; d) the
APCHA Interest in a Deed Restricted Unit will be conveyed to the owner of such Deed Restricted Unit if
and when the Colorado legislature or a court of competent jurisdiction legalizes the imposition of rent
restrictions on affordable housing units; and e) the APCHA Interest will be conveyed to the first Qualified
Buyer of a Deed Restricted Unit if such Deed Restricted Unit is converted to a sale unit and sold to a
Qualified Buyer. In the event the Project is sold by the Declarant to a third party before the Project is
condominiumized, the Declarant shall assign the foregoing deed restriction and APCHA Interest obligations
to the third party buyer.
WHEREAS, the Deed Restricted Units identified herein shall be classified as Category 2 employee
housing units and will be deed restricted to rental and sales price terms within the Guidelines and to
occupancy limitations within the housing income eligibility guidelines established by the Guidelines.
Rentals and sales must be in accordance with the Guidelines as adopted and amended from time to time.
Deed Restricted Unit 3 and Deed Restricted Unit 4 shall remain as rental units until such time as either
Deed Restricted Unit 3 or Deed Restricted Unit 4 is transferred to a transferee who does not simultaneously
own Free Market Unit 1 (which must be done through the Aspen/Pitkin County Housing Authority), and
Deed Restricted Unit 5 shall remain as a rental unit until such time as Deed Restricted Unit 5 is transferred
to a transferee who does not simultaneously own Free Market Unit 2 (which also must be done through the
Aspen/Pitkin County Housing Authority), or until such time said Deed Restricted Unit is deemed to be out
of compliance by APCHA with the rental occupancy requirements set forth in the Guidelines or this
Agreement for a period of one yeaz from the date on which APCHA gives the record owner of said Deed
Restricted Unit written notice of such noncompliance and such noncompliance has not been cured during
said one-year period. For Deed Restricted Unit 3 and Deed Restricted Unit 4 (which shall both initially be
{00121396.DOC / 6}
Master Deed Restriction Page 2
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owned by the Free Market Unit 1 Owner), said noncompliance only has to occur in one (1) Unit for the
requirement to sell both Units to take effect.
WHEREAS, "Qualified TenantsBuyers" aze natural persons meeting the income, residency and all
other qualifications set forth in the Guidelines, or its substitute, as adopted by the APCHA, or its successor,
and in effect at the time of a lease to a Qualified Tenant or the closing of the sale to the Qualified Buyer, and
who must represent and agree pursuant to this Agreement to occupy the Deed Restricted Unit as their sole
place of residence, not to engage in any business activity on the Property other than that permitted in that
zone district or by applicable ordinance, not to sell or otherwise transfer the Deed Restricted Unit for use in
a trade or business; and to continue meeting the employment, residency and other requirements as stated in
this Agreement and the Guidelines.
NOW, THEREFORE, for value received, the receipt and sufficiency of which are hereby
acknowledged, Declarant hereby represents, covenants and agrees as follows:
A. RENTAL UNIT REQUIREMENTS -USE AND OCCUPANCY
For so long as a Deed Restricted Unit is a rental unit, such Deed Restricted Unit shall be occupied
by qualified residents. Only qualified residents, as defined in the Guidelines, shall reside therein
and all rental terms shall be for a period of not Tess than six (6) consecutive months. The owner of a
Deed Restricted Unit which is a rental unit shall maintain the first right to select the qualified tenant
of its own choosing when renting the Deed Restricted Unit. APCHA shall have the right to place a
qualified tenant in a Deed Restricted Unit if the owner of such Deed Restricted Unit fails to keep
such Deed Restricted Unit occupied by a qualified tenant. An executed copy of all leases for a
Deed Restricted Unit shalt be submitted to the APCHA within the (10) days of the approval of a
qualified tenant. All tenants shall be approved through the APCHA PRIOR to moving into said
Deed Restricted Unit.
2. The maximum rental rate shall not exceed Category 2 rental rates as set forth in the Guidelines
established by APCHA and may be adjusted annually as set forth in the Guidelines. The maximum
permitted rental rate for the Deed Restricted Units on the date of execution of this deed restriction is
$1,026 per month. Rent shall be verified and approved by APCHA upon submission and approval
of the lease.
3. The Deed Restricted Units shall not be occupied by the Declarant, an owner of a Free Mazket Unit,
or the members of the their immediate family ("Immediate Family" shall mean a person related by
blood or marriage who is a first cousin [or closer relative] and his or her children) nor shall the Deed
Restricted Units be used as a guesthouse or guest facility. If the owner is a corporation, this
restriction applies to the directors and shareholders of such corporation.
4. Written verification of employment of employee(s) proposed to reside in the Deed Restricted Units
shall be completed and filed with the APCHA of the Units prior to occupancy thereof, and such
verification must be acceptable to the APCHA.
5. The Deed Restricted Units shall be required to be rented for periods of no less than six (6)
consecutive months. Upon vacancy of a Deed Restricted Unit, the owner is granted no more than
forty-five (45) days in which to locate a qualified employee.
6. The Deed Restricted Units must meet minimum occupancy requirements; i.e., at least one person per
bedroom.
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Master Deed Restriction Page 3
If a Deed Restricted Unit is found by APCHA to be out of compliance as stipulated above for one-yeaz, such
Deed Restricted Unit shall be sold through the APCHA and under the requirements as stated below.
B. SALES UNIT REQUIREMENTS -USE AND OCCUPANCY
A "Qualified Buyer" is a person, other than Declarant, and with respect to Deed Restricted Unit 3
and Deed Restricted Unit 4, is a person who is not also simultaneously the owner of Free Market
Unit 1, and with respect to Deed Restricted Unit 5, is a person who is not also simultaneously the
owner of Free Market Unit 2, who acquires an ownership interest in a Deed Restricted Unit in
compliance with the terms and provisions of this Agreement. [t is understood that such person,
persons or entity shall be deemed a "Qualified Buyer" hereunder only during the period of his, her,
their or its ownership interest in the Deed Restricted Unit and shall be obligated hereunder for the
full and complete performance and observance of all covenants, conditions and restrictions
contained herein during such period, including the Guidelines as amended from time to time.
8. Upon conversion of a Deed Restricted Unit to a sales unit, the use and occupancy of the Deed
Restricted Unit shall be limited exclusively to housing for natural persons who meet the definition
of Qualified Buyers and their families, and the other requirements of this Agreement and the
Aspen/Pitkin County Housing Authority Guidelines referred to above.
9. A Qualified Buyer, in connection with the purchase of the Deed Restricted Units, must: a) occupy
any Deed Restricted Unit within this Property as his or her sole place of residence during the time
that such Deed Restricted Unit is owned; b) not own, directly or indirectly through a legal entity,
any interest alone or in conjunction with others, in any developed property or dwelling units in
accordance with the limitations established by the Guidelines as amended from time to time; c) not
engage in any business activity on or in such Deed Restricted Unit, other than permitted in that zone
district or by applicable ordinance; d) sell or otherwise transfer such Unit only in accordance with
this Agreement and the Guidelines; e) not sell or otherwise transfer such Deed Restricted Unit for
use in a trade or business; f) not permit any use or occupancy of such Deed Restricted Unit except
in compliance with this Agreement; g) continue to meet the residence and employment
requirements of a Qualified Buyer established by the APCHA Guidelines and as they aze amended
from time to time; and h) continue to meet the other requirements of the applicable APCHA
Guidelines and this Agreement. Recertification of employment, residency and the ownership of
other property shall be required as stipulated in the APCHA Guidelines.
C. DEFAULT ON LOAN
10. a. It shall be a breach of this Agreement for a Qualified Buyer to default in payments or other
obligations due or to be performed under a promissory note secured by a first deed of trust
encumbering a Deed Restricted Unit or to breach any of Qualified Buyer's duties or
obligations under said deed of tmst. It shall also be a breach of this Agreement for a
Qualified Buyer to default in the payment of real property taxes or obligations to any
homeowners' association for general or special assessments. Each Qualified Buyer must
notify the APCHA, in writing, of any such default, including notification received from a
lender, or its assigns, of past due payments or default in payment or other obligations due or
to be performed under a promissory note secured by a first deed of trust, as described
herein, or of any breach of any of Qualified Buyer's duties or obligations under said deed
of trust, within five calendaz days of Qualified Buyer's notification from lender, or its
{00121396.DOC / 6}
Master Deed Restriction page 4
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assigns, or any other creditor specified herein, of said default or past due payments or
breach.
b. Upon notification of a default as provided above, the APCHA may offer loan counseling or
distressed loan services to the Qualified Buyer, if any of these services are available, and is
entitled to require the Qualified Buyer to sell a Deed Restricted Unit to avoid the
commencement of any foreclosure proceeding against a Deed Restricted Unit.
c. Upon receipt of notice as provided in paragraphs l0a and b, the APCHA shall have the
right, in its sole discretion, to cure the default or any portion thereof. In such event, the
Qualified Buyer shall be personally liable to APCHA for past due payments made by the
APCHA together with interest thereon at the rate specified in the promissory note secured
by the first deed of trust, plus one percent (1%), and all actual expenses of the APCHA
incurred in curing the default. The Qualified Buyer shall be required by APCHA to
execute a promissory note secured by deed of trust encumbering the Deed Restricted Unit
in favor of the APCHA for the amounts expended by the APCHA as specified herein,
including future advances made for such purposes. The Qualified Buyer may cure the
default and satisfy its obligation to the APCHA under this subpazagraph at any time prior to
execution of a contract for sale, upon such reasonable terms as spec~ied by the APCHA.
Otherwise, Qualified Buyer's indebtedness to the APCHA shall be satisfied from the
Qualified Buyer's proceeds at closing.
d. In addition, upon receipt of notice as provided in Pazagraphs l0a and lOb, the APCHA
shall have the option, exercisable in the APCHA's sole discretion, to purchase the Qualified
Buyer's Deed Restricted Unit for ninety-five percent (95%) of the Maximum Resale Price.
If the APCHA desires to exercise said option, it shall give written notice thereof to the
owner of such Deed Restricted Unit within sixty (60) days following the APCHA's receipt
of the notice as provided in Paragraphs l0a and 106. In the event the APCHA timely
exercises said option, the closing of the purchase of the Deed Restricted Unit shall occur
within sixty (60) days following the date of the APCHA's notice to the Qualified Buyer of
the exercise of said option.
D. DEFAULT ON CONDOMINIUM ASSESSMENTS
11. It shall be a violation of this Agreement for any owner of a Deed Restricted Unit from time to time
to default in the payment of general or special assessments to any homeowner's association, and
such person shall be subject to enforcement as provided herein. In addition, upon sale of a Deed
Restricted Unit as to which the payment of such obligations is in default, the assessments shall be
paid at closing.
E. ENFORCEMENT -SALE UNITS
12. In the event that the APCHA determines that sale of a Deed Restricted Unit is necessary as a result
of breach of this Agreement, the Qualified Buyer owning such Deed Restricted Unit shall immediately
execute a standard Listing Contract on forms approved by the Colorado Real Estate Commission
with the APCHA, providing fora 30-day listing period. At that time, the Qualified Buyer shall
deposit with the APCHA an amount equal to one percent (1 %) of the estimated value of the Deed
Restricted Unit. If a sales contract has not been executed within the initial 30-day period, such
Qualified Buyer shall extend the listing period for an additional 180 days, provided such extension
does not conflict with the statutory rights of any secured creditors. The APCHA shall promptly
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advertise the Deed Restricted Unit for sale by competitive bid to Qualified Buyers. At the time of
closing, the Qualified Buyer shall pay to the APCHA an additional fee as stated in the Aspen/Pitkin
County Employee Housing Guidelines. In the event of a listing of a Deed Restricted Unit pursuant
to this Paragraph 12, the APCHA is entitled to require the Qualified Buyer to accept the highest of
any qualified bids that is equal to the lesser of (i) an amount that at least satisfies the Qualified
Buyer's financial or other obligations due under the promissory note secured by a first deed of trust
and any deed of trust in favor of the APCHA, as described herein, or (ii) the Maximum Resale Price
(as hereinafter defined), and to sell the Deed Restricted Unit to such qualified bidder. The listing
and sale of the Deed Restricted Unit shall be subject to such listing, sales and other fees and
expenses as may be imposed by the APCHA from time to time as set forth in the Guidelines.
F. AGREEMENT RUNS WITH THE LAND
13. This Agreement shall constitute covenants running with the Property and the Units, as a burden
thereon, for the benefit of, and shall be specifically enforceable by the APCHA, the City Council for
the City (the "City Council"), the Board of County Commissioners for Pitkin County (also referred
to herein as the "County"), and their respective successors and assigns, as applicable, by any
appropriate legal action including but not limited to specific performance, injunction, reversion, or
eviction ofnon-complying owners and/or occupants.
G. VOLUNTARY SALE
14. In the event that a Qualified Buyer desires to voluntarily sell a Deed Restricted Unit, he/she shall
execute a standard Listing Contract on forms approved by the Colorado Real Estate Commission
with the APCHA providing fora 180-day listing period, or such other time period as required by the
APCHA Guidelines in effect at time of listing. The APCHA shall promptly advertise the Deed
Restricted Unit for sale by competitive bid to Qualified Buyers. The listing and sale of the Deed
Restricted Unit shall be subject to such listing, sales and other fees and expenses as may be imposed
by the APCHA from time to time as set forth in the Guidelines.
H. APCHA'S RIGHT TO ACQUISITION
15. Notwithstanding any provision herein to the contrary, the APCHA shall have the right, in its sole
discretion, (i) to acquire any Deed Restricted Unit for the purpose of resale thereof to a Qualified
Buyer; (ii) following its acquisition of any Deed Restricted Unit, to repair, replace, redevelop,
remove and maintain such Deed Restricted Unit prior to resale to a Qualified Buyer; and/or (iii)
amend this Deed Restriction Agreement following the acquisition.
I. MAXIMUM RESALE PRICE
16. In no event shall a Deed Restricted Unit be sold for an amount ("Maximum Resale Price") in excess
of the lesser of:
a. $i 19,000 for Deed Restricted Unit 3, $119,000 for Deed Restricted Unit 4, and $119,000
for Deed Restricted Unit 5 plus an increase of three percent (3%) of such price per yeaz
from the date of purchase to the date of owner's notice of intent to sell (prorated at the rate
of .25 percent for each whole month for any part of a year); or
b. an amount (based upon the Consumer Price Index, All Items, U.S. City Average, Urban
Wage Earners and Clerical Workers (Revised), published by the U.S. Department of Labor,
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Bureau of Labor Statistics) calculated as follows: the owner's purchase price divided by the
Consumer Price Index published at the time of owner's purchase stated on the Settlement
Statement, multiplied by the Consumer Price Index current at the date of intent to sell. In
no event shall the multiplier be less than one (1). For purposes of this Agreement, "date of
intent to sell" shall be the date of execution of a listing contract when required by this
Agreement, or if a listing contract is not otherwise necessary, the date shall be determined
to be the date upon which a requirement for the owner to sell is first applicable.
NOTHING HEREIN SHALL BE CONSTRUED TO CONSTITUTE A REPRESENTATION
OR GUARANTEE BY THE APCHA OR THE CITY THAT ON RESALE THE OWNER
SHALL OBTAIN THE MAXIMUM RESALE PRICE.
17. a. Subject to the limitations of this Section, for the purpose of determining the Maximum
Resale Price in accordance with this Section, the owner may add to the amount specified
in Paragraph 16 above, the cost of Permitted Capital Improvements, as set forth in
Exhibit "B" attached hereto or otherwise allowed by the Guidelines and as they are
amended from time to time, in a total amount not to exceed $I 1,900, which is ten percent
(10%) of the listed purchase price set forth in paragraph 16a above. In calculating such
amount, only those Permitted Capital Improvements identified in Exhibit "B" hereto or
otherwise allowed by the Guidelines from time to time shall qualify for inclusion. All
such Permitted Capital Improvements installed or constructed over the life of the unit
shall qualify, and will be depreciated based on the Depreciation Schedule used by
APCHA at the time of listing.
b. Permitted Capital Improvements shall not include any changes or additions to the Property
or Unit made by the owner during construction or thereafter, except in accondance with
Paragraph 16a above. Permitted Capital Improvements shall not be included in the
APCHA's listed purchase price, even if made or installed during original construction.
c. In order to qualify as Permitted Capital Improvements, the owner must famish to the
APCHA the following information with respect to the improvements that the owner seeks
to include in the calculation of Maximum Resale Price:
(1) Original or duplicate receipts to verify the actual costs expended by the owner for
the Permitted Capital Improvements;
(2) The owner's affidavit verifying that the receipts are valid and correct receipts
tendered at the time of purchase; and
(3) True and correct copies of any building permit or certificate of occupancy required
to be issued by the Aspen/Pitkin County Building Department with respect to the
Permitted Capital Improvements.
All capital improvements will be depreciated. Certain capital improvements will not be
counted towards the 10% cap. Each capital improvement will depreciate according to the
depreciation schedule stated in an approved handbook. The current source is the Marshall
Swift Residentia[Handbook. Any capital improvements associated with health and safety,
energy efficiency, water conservation, and green building products will be exempt from the
10% capital improvement cap; however, such capital improvements shall be depreciated
according to the depreciation schedule stated in an approved handbook. Any improvement
to bring the Unit up to the Aspen Affordable Housing Building Guidelines will also be
allowed as part of the ] 0% cap.
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d. For the purpose of determining the Maximum Resale Price in accordance with this Section,
the owner may also add to the amounts specified in Paragraphs 16 and 17a, the cost of any
permanent improvements constructed or installed as a result of any requirement imposed by
any governmental agency, provided that written certification is provided to the APCHA of
both the applicable requirement and the information required by Paragraph 17c, (1)- (3).
e. In order to obtain maximum resale price, owner must ensure that the Unit meets APCHA's
generally applicable minimum standards for a seller of adeed-restricted unit to receive full
value as determined by APCHA in its discretion. This shall include requirements to clean
the home, ensure that all fixtures are in working condition, and to repair damage to the unit
beyond normal weaz and tear and as stated in the Minimum Standards for Seller to Receive
Full Yalue at Resale, Exhibit "C". If the Seller does not meet this requirement, APCHA
may require that Seller escrow at closing a reasonable amount to achieve compliance by
APCHA, or reduce the maximum resale price accordingly.
J. GRIEVANCES
18. All disputes between Declarant (or Declazant's successors and assigns) or an owner or tenant in a
Deed Restricted Unit and APCHA shall be heazd in accordance with the grievance procedures set
forth in the Guidelines.
K. CLOSING COSTS
19. A Qualified Buyer shall not permit any prospective buyer to assume any or all of the owner's
customary closing costs (including, but not limited to, title insurance, sales fee, pro ration of taxes,
homeowners dues, etc., as are customary in Aspen and Pitkin County) nor accept any other
consideration which would cause an increase in the purchase price above the bid price so as to
induce the owner to sell to such prospective buyer.
L. MULTIPLE QUALIFIED BIDS
20. In the event that one qualified bid is received equal to the Maximum Resale Price herein
established, the Deed Restricted Unit shall be sold to such bidder at the Maximum Resale Price; and
in the event owner receives two or more such bids equal to the Maximum Resale Price, the
Qualified Buyer shall be selected according to the priority for sale units set forth in the Guidelines;
and, in the event that more than one such qualified bidder is of equal priority pursuant to the
Guidelines, the Qualified Buyer shall be selected by lottery among the qualified bidders of the
highest priority, whereupon the Deed Restricted Unit shall be sold to the winner of such lottery at
the Maximum Resale Price. If the terms of the proposed purchase contract, other than price, as
initially presented to the owner, are unacceptable to the owner, there shall be a mandatory
negotiation period of three (3) business days to allow the owner and potential buyer to reach an
agreement regarding said terms, including but not limited to, the closing date and financing
contingencies. If, after the negotiation period is over, the owner and buyer have not reached an
agreement, the next bidder's offer will then be presented to the owner for consideration and a three
(3) business day negotiating period will begin again. The owner may reject any and all bids;
however, the owner is subject to the provisions in the Guidelines pertaining to the listing fee. Bids
in excess of the Maximum Resale Price shall be rejected. If all bids are below the Maximum Resale
Price, the owner may accept the highest qualified bid. If all bids are below the Maximum Resale
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Price and two or more bids are for the same price, the Qualified Buyer shall be selected by lottery
from among the highest qualified bidders.
M. NON-QUALIFIED TRANSFEREES
21. Acquisition of any interest in Deed Restricted Unit 3 or Deed Restricted Unit 4 by someone other
than the Declarant, a Qualified Buyer, or the simultaneous owner of Free Mazket Unit 1 is a
violation of this Agreement. Acquisition of any interest in the Deed Restricted Unit 5 by someone
other than the Declarant, a Qualified Buyer, or the simultaneous owner of Free Market Unit 2 is a
violation of this Agreement. In the event that title to a Deed Restricted Unit vests by descent in, or
is otherwise acquired by, any individual and/or entity who is anon-qualified transferee, the Deed
Restricted Unit shall immediately be listed for sale as provided in Paragraph 14 above (including
the payment of the specified fee to the APCHA), and the highest bid by a Qualified Buyer, for not
less than ninety-five percent (95%) of the Maximum Resale Price or the appraised market value,
whichever is less, shall be accepted; if all bids are below ninety-five percent (95%) of the Maximum
Resale Price or the appraised market value, the Unit shall continue to be listed for sale until a bid in
accordance with this section is made, which bid must be accepted. The cost of the appraisal shall be
paid by the Non-Qualified Transferee(s).
a. Non-Qualified Transferee(s) shall join in any sale, conveyance or transfer of the Deed
Restricted Unit to a Qualified Buyer and shall execute any and all documents necessary to
do so; and
b. Non-Qualified Transferee(s) agree not to: (1) occupy the Deed Restricted Unit; (2) rent all
or any part of the Deed Restricted Unit, except in strict compliance with Pazagraph 21
hereof; (3) engage in any other business activity on or in the Deed Restricted Unit; (4) sell
or otherwise transfer the Deed Restricted Unit except in accordance with this Agreement
and the Guidelines; or (5) sell or otherwise transfer the Deed Restricted Unit for use in a
trade or business.
c. The APCHA, the City, the County, or their respective successors, as applicable, shall have
the right and option to purchase the Deed Restricted Unit, exercisable within a period of
fifteen (15) calendar days after receipt of any sales offer submitted to the APCHA by a
Non-Qualified Transferee(s), and in the event of exercising their right and option, shall
purchase the Property or Unit from the Non-Qualified Transferee(s) for a price of ninety-
five percent (95%) of the Maximum Resale Price, or the appraised market value, whichever
is less. The offer to purchase shall be made by the Non-Qualified Transferee within fifteen
(15) days of acquisition of the Deed Restricted Unit.
d. Where the provisions of this Paragraph 21 apply, the APCHA may require the Non-
Qualified Transferee to rent the Deed Restricted Unit in accordance with the provisions of
Paragraph 25, below.
N. OWNER RESIDENCE, EMPLOYMENT AND CONTINUING COMPLIANCE
22. The Deed Restricted Units are to be utilized only as the sole and exclusive place of residence of a
Qualified Tenant/Buyer.
23. In the event a Qualified TenanUBuyer changes place of residence or ceases to utilize the Deed
Restricted Unit as his sole and exclusive place of residence, ceases to be a full-time employee in
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accordance with the APCHA Guidelines as they aze amended from time to time, or otherwise
ceases to be in compliance as a Qualified Tenant/Buyer with the APCHA Guidelines as they are
amended from time to time, or this Agreement, the Tenant must vacate the Deed Restricted Unit
and the Deed Restricted Unit leased to a Qualified Tenant or the Unit MUST be offered for sale
pursuant to the provisions of Paragraph 14 of this Agreement, as applicable. A Qualified
TenanUBuyer shall be deemed to have changed his or her place of residence by becoming a resident
elsewhere or accepting employment outside Pitkin County, or residing in the Deed Restricted Unit
for fewer than nine (9) months per calendar year without the express written approval of the
APCHA, or by ceasing to be a full-time employee as required by the Guidelines as amended from
time to time. Where the provisions of this Paragraph 23 apply, the APCHA may require the owner
to rent the Deed Restricted Unit in accordance with the provisions of Paragraph 25, below pending
a sale of the Deed Restricted Unit.
24. If at any time the Qualified Tenant/Buyer of the Deed Restricted Units at any time also owns
directly or indirectly through a legal entity any interest alone or in conjunction with others in any
developed residential property or dwelling unit(s) located in Eagle, Gazfield, Gunnison or Pitkin
Counties, within the Roaring Fork Valley as defined in the Guidelines as they are amended from
time to time, the Qualified Tenant/Buyer agrees to immediately vacate the Deed Restricted Unit or
list said other property or unit for sale and to sell his or her interest in such property at fair market
value to like units or properties in the area in which the property or dwelling unit(s) are located, as
applicable. In the event said other property or unit has not been sold by Qualified TenantBuyer
within one hundred eighty (180) days of its listing for any reason, then Qualified Tenant/Buyer
hereby agrees to immediately vacate said Deed Restricted Unit or list the Deed Restricted Unit for
sale pursuant to the provisions of Paragraph 14 of this Agreement, as applicable.
O. RENTAL
25. A Qualified Buyer may not, except with prior written approval of the APCHA, and subject to
APCHA's conditions of approval, rent the Deed Restricted Unit for any period of time. Prior to
occupancy, each tenant must be approved by the homeowner's association, if applicable, and the
APCHA in accordance with the income, occupancy and all other qualifications established by the
APCHA in its Guidelines. The APCHA shall not approve any rental if such rental is being made by
Qualified Buyer to utilize the Deed Restricted Unit as an income producing asset, except as provided
below, and shall not approve a lease with a rental term in excess of twelve (12) months. A signed
copy of the lease must be provided to the APCHA prior to occupancy by each tenant. Any such
lease approved by the APCHA shall show the length of the lease and the monthly rent. The
monthly rent cannot exceed the Qualified Buyer's costs, which include the monthly expenses for the
cost of principal and interest payments, taxes, property insurance, condominium or homeowners
assessments, utilities remaining in Qualified Buyer's name, plus an additional amount as stated in the
Guidelines and as they are amended form time to time, and a reasonable (refundable) security
deposit.
The requirements of this paragraph shall not preclude the Qualified Buyer from shazing occupancy of
the Deed Restricted Unit with non-Owners on a rental basis provided Qualified Buyer continues to
meet the obligations contained in this Agreement, including Paragraph 22.
26. IN NO EVENT SHALL ANY OWNER CREATE AN ADDITIONAL DWELLING UNIT, AS
DEFINED IN THE PITKIN COUNTY OR CITY OF ASPEN LAND USE CODES, IN OR ON
THE PROPERTY OR A DEED RESTRICTED UNIT.
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27. NOTHING HEREIN SHALL BE CONSTRUED TO REQUIRE THE APCHA TO PROTECT OR
INDEMNIFY ANY OWNER AGAINST ANY LOSSES ATTRIBUTABLE TO THE RENTAL,
CNCLUDING (NOT BY WAY OF LIMITATION) NON-PAYMENT OF RENT OR DAMAGE
TO THE PREMISES; NOR TO REQUIRE THE APCHA TO OBTAIN A QUALIFIED TENANT
FOR ANY OWNER IN THE EVENT THAT NONE IS FOUND BY ANY OWNER.
P. COMPLIANCE REVIEW AND REMEDIES FOR BREACH
28. Declarant, owners of the Deed Restricted Units, or Qualified Tenants/Buyers shall promptly provide
to the APCHA all such information as the APCHA deems reasonably necessary at any time to
verify compliance with this Agreement. The APCHA shall maintain the confidentiality of any
financial data provided by any existing or potential owner, except for such disclosures as are
necessary with respect to any litigation, enforcement or other legal proceedings. In the event that
APCHA has reasonable cause to believe that Declarant or any owner is violating the provisions of
this Agreement, the APCHA, by it's authorized representative, may inspect the Deed Restricted
Unit between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, after providing such
person with no less than 24 hours' written notice.
29. The APCHA, through its employees or agents, in the event a violation or potential violation of this
Agreement is discovered, shall send a notice of violation to the Declarant, the owner of the affected
Deed Restricted Unit, the tenant and/or the Qualified Buyer describing the nature of the violation
and allowing said person fifteen (15) days to cure. Said notice shall state that the violator may
request a hearing before the APCHA Board of Directors within fifteen (15) days to dispute the
merits of the allegations. If no hearing is requested and the violation is not cured within the fifteen
(15) day period, the violation shall be considered final and the violator shall immediately list the
Unit for sale in accordance with this Agreement. The failure to request a hearing shall constitute the
failure to exhaust administrative remedies for the purpose of judicial review. If a hearing is held
before the APCHA Board, (i) the decision of the APCHA Board based on the record of such
heazing shall be fmal for the purpose of determining if a violation has occurred, and (ii) the APCHA
Board shall have absolute discretion to determine the appropriate action to be taken to either remedy
the violation or require the violator to vacate or to list the Deed Restricted Unit for sale in
accordance with this Agreement, and APCHA, in its discretion, shall identify the measures
necessary to bring the Deed Restricted Unit into compliance, which may include a requirement to
vacate and/or sell the Deed Restricted Unit
30. There is hereby reserved to the parties hereto any and all remedies provided by law for breach of
this Agreement or any of its terms. In the event the parties resort to litigation with respect to any or
all provisions of this Agreement, the prevailing party shall awarded damages and costs, including
reasonable attorneys' fees.
31. In the event a Deed Restricted Unit is used, occupied, leased, sold and/or conveyed without
compliance herewith, such use, occupancy or sale and/or conveyance shall be wholly null and void
and shall confer no title whatsoever upon the purported buyer, tenant or occupant. Each and every
lease and conveyance of a Deed Restricted Unit, for all purposes, shall be deemed to include and
incorporate by this reference, the covenants herein contained, even without reference therein to this
Agreement. The violator shall be liable for all APCHA's costs and reasonable attorneys' fees
incurred in enforcing this Agreement and in setting aside any such transaction.
32. In the event that the violator fails to cure any breach, the APCHA may resort to any and all
available legal action, including, but not limited to, specific performance of this Agreement or a
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mandatory injunction requiring sale of a Deed Restricted Unit by the owner thereof as specified in
Pazagraphs 14, 21, 23, and 24, or vacating the Deed Restricted Unit, or termination of an unlawful
lease. The costs of such sale, including the costs of enforcing this Agreement and reasonable
attorneys' fees, shall be taxed against the proceeds of the sale with the balance being paid to the
owner of the affected Deed Restricted Unit.
33. In the event of a breach of any of the terms or conditions contained herein by the owner, his or her
heirs, successors or assigns, the APCHA's initial listed purchase price of the Deed Restricted Unit as
set forth in Paragraph 16a of this Agreement shall, upon the date of such breach as determined by
the APCHA, automatically cease to increase as set out in Paragraph 16 of this Agreement, and shall
remain fixed until the date of cure of said breach.
Q. FORECLOSURE
34. a. If any Deed Restricted Unit is sold at a foreclosure sale or otherwise acquired by any
person or entity in lieu of foreclosure, the APCHA and the Board, as the designee of the
APCHA, shall have the option to acquire such Deed Restricted Unit within thirty (30)
days after (i) the issuance of a public trustee's deed to the purchaser, or (ii) receipt by the
APCHA of written notice from such person or entity of the acquisition of such Deed
Restricted Unit in lieu of foreclosure, as applicable, for an option price not to exceed (a)
in the event of a foreclosure, the redemption price on the last day of all statutory
redemption periods and any additional reasonable costs incurred by the holder during the
option period which are directly related to the foreclosure or (b) in the event of a transfer
in lieu of foreclosure, the amount paid, or the amount of debt forgiven, by the transferee
plus the reasonable costs incurred by the transferee with respect to its acquisition of such
Deed Restricted Unit. Notwithstanding any provision herein to the contrary, except for
persons or entities having a valid lien on a Deed Restricted Unit, only Qualified Buyers
may acquire an interest in a Deed Restricted Unit at a foreclosure sale or in lieu of
foreclosure. If any person or entity having a lien on a Deed Restricted Unit is not a
Qualified Buyer and acquires an interest in such Unit in a foreclosure sale or in lieu of
foreclosure, the provisions of Paragraph 21 shall apply. It is the APCHA's intent that the
terms and provisions of this Agreement shall remain in full force and effect with respect
to the Deed Restricted Units until modified, amended or terminated in accordance with
paragraph 47 hereof.
b. In the event that APCHA or the Board, as the designee of the APCHA, exercise the option
described above, the APCHA and/or its designee, may sell the Deed Restricted Unit to
Qualified Buyers as that term is defined herein, or rent the Deed Restricted Unit to qualified
tenants who meet the income, occupancy and all other qualifications, established by the
APCHA in its Guidelines until a sale to a Qualified Buyer is effected.
c. Notwithstanding the foregoing, in the event of foreclosure by the holder of the first deed of
trust on such Deed Restricted Unit, if the holder of such deed of trust is the grantee under
the public tmstee's deed and APCHA does not exercise its option to purchase as provided
in paragraph 34, then APCHA agrees to release the Unit from the requirements of this Deed
Restriction.
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R. ASSESSMENTS
35. Each owner of a Deed Restricted Unit shall have anon-exclusive right in common with the other
owners of the Free Market Units to the use of sidewalks, pathways, roads, areas provided for open
space, utilities and streets within the Project designated as common areas, and each such owner may
make such use without hindering or encroaching upon the lawful rights of the other owners. The
Deed Restricted Units' regular management/maintenance assessments shall be based on an
allocation of 33.10% of the total amount of any such assessment to Free Mazket Unit 1, 43.05% of
the total amount of any such assessment to Free Market Unit 2, 3.99% of the total amount of any
such assessment to Deed Restricted Unit 3, 10.11% of the total amount of any such assessment to
Deed Restricted Unit 4, and 9.75% of the total amount of any such assessment to Deed Restricted
Unit 5. For any special or capital assessment in connection with the Project, each Deed Restricted
Units' pro rata share of any such assessment shall be an amount equal to the then current assessed
valuation of such Deed Restricted Unit divided by the total assessed valuation of the all of the Units
in the Project, with such "assessed valuation" being the assessed value of each Unit as determined
by the Pitkin County Assessor from time to time.
S. GENERAL PROVISIONS
36. Notices. Any notice, consent or approval which is requved to be given hereunder shall be given by
mailing the same, certified mail, return receipt requested, properly addressed and with postage fully
prepaid, to any address provided herein or to any subsequent mailing address of the party as long as
prior written notice of the change of address has been given to the other parties to this Agreement.
Said notices, consents and approvals shall be sent to the parties hereto at the following addresses
unless otherwise notified in writing:
To APCHA: Aspen/Pitkin County Housing Authority
530 East Main, Lower Level, Aspen, Colorado 81611
To Declarant: 410 WEST END, LLC
c/o John R. Provine
P.O. Box 8769, Aspen, Colorado 81612
To Owner(s): To be completed by a separate Memorandum of Acceptance when
sold to a Qualified Buyer
37. Exhibits. All exhibits attached hereto (Exhibits "A", "B" and "C") aze incorporated herein and by
this reference made a part hereof.
38. Severabiliri. Whenever possible, each provision of this Agreement and any other related document
shall be interpreted in such a manner as to be valid under applicable law; but if any provision of any
of the foregoing shall be invalid or prohibited under said applicable law, such provisions shall be
ineffective to the extent of such invalidity or prohibition without invalidating the remaining
provisions of such document.
39. Choice of Law. This Agreement and each and every related document are to be governed and
construed in accordance with the laws of the State of Colorado.
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40. Successors. Except as otherwise provided herein, the provisions and covenants contained herein
shall inure to and be binding upon the heirs, successors and assigns of the parties.
41. Section Headines. Pazagraph or section headings within this Agreement are inserted solely for
convenience of reference, and aze not intended to, and shall not govern, limit or aid in the
construction of any terms or provisions contained herein.
42. Waiver. No claim of waiver, consent or acquiescence with respect to any provision of this
Agreement shall be valid against any party hereto except on the basis of a written instmment
executed by the parties to this Agreement. However, the party for whose benefit a condition is
inserted herein shall have the unilateral right to waive such condition, provided that such waiver is
in writing.
43. Gender and Number. Whenever the context so requires herein, the neuter gender shall include any
or all genders and vice versa and the use of the singulaz shall include the plural and vice versa.
44. Personal Liabiliri. The owners of the Deed Restricted Units from time to time agrees that he or she
shall be personally -iable for any of the transactions contempla~d herein.
45. Further Actions. The parties [o this Agreement agree to execute such further documents and take
such further actions as may be reasonably required to carry out the provisions and intent of this
Agreement or any agreement or document relating hereto or entered into in connection herewith.
46. Modifications. The parties to this Agreement agree that any modifications of this Agreement shall
be effective only when made by writings signed by both parties and recorded with the Clerk and
Recorder of Pitkin County, Colorado. Notwithstanding the foregoing, the APCHA reserves the
right to amend this Agreement unilaterally where deemed necessary to effectuate the purpose and
intent of this Agreement, and where such unilateral action does not materially impair the owner's
rights under this Agreement.
47. Mortgagee Rieht to Cure. Nothing herein shall be deemed to impair any right of a mortgagee of a
Deed Restricted Unit from curing any default by an owner of his or her financial obligations with
respect to such Deed Restricted Unit.
IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day and year
above first written.
DECLARANT:
4l0 WEST E~dJY, CL~~
Bye, ~
*Declarant's name(s) John R. Provine, Manager
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Maetet Deed Reetziction
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STATE OF COLORADO
~ ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this ~~ ~ day of May 2009 by John R.
Provine, as Manager of 410 West End, LLC.
Witness my hand and official seal; CHRIS DEELY
NOTARY PUBLIC
My commission expires: / / STATE OF COLORADO
ply Commission Expires 05116!2011
Notary Public
ACCEPTANCE BY THE ASPEN/PITKIN COUNTY HOUSING AUTHORITY
The foregoing Deed Restriction Agreement for the Occupancy and Resale of 410 West End
Condominiums of the Aspen/Pitkin County Housing Authority and its terms are hereby adopted and
declared by the Aspen/Pitkin County Housing Authority.
THE ASPEN/PITKIN COUNTY HOUSING AUTHORITY
By:
Tom McCabe, Executive Director
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Maeter Deetl Restriction Page 15
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STATE OF COLORADO )
ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this _'s day of 2009, by
Bentley Henderson, as Assistant City Manager, City of Aspen
Wifiess my hand and official seal;
Notary Public
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Master Deed Restriction Page 16
EXHIBIT "A"
Legal Description of Free Market Units and Deed Restricted Units
*LEGAL DESCRIPTION
EXHIBIT "B"
Permitted Capital Improvements
The term "Permitted Capital Improvement" as used in the Agreement shall only include the following
a. Improvements or fixtures erected, installed or attached as permanent, functional, non•decorative
improvements to real property, excluding repair, replacement and/or maintenance improvements;
b. Improvements for energy and water conservation;
c. Improvements for the benefit of seniors and/or handicapped persons;
d. Improvements for health and safety protection devices;
e. Improvements to add and/or fmish permanent/fixed storage space;
f Improvements to finish unfinished space.
g. Landscaping;
h. The cost of adding decks and balconies, and any extension thereto; and/or
i. Improvements associated with health and safety, energy efficiency, water conservation, and green
building products.
2. Permitted Capital Improvements as used in this Agreement shall NOT include the following:
a. Jacuzzis, saunas, steam showers and other similar items;
b. Upgrades or addition of decorative items, including lights, window coverings and other similaz
items;
c. Upgrades of appliances, plumbing and mechanical fixtures, carpets and other similaz items included
as part of the original construction of a unit and/or improvements requved to repair and maintain
existing fixtures, appliances, plumbing and mechanical fixtures, painting, and other similar items,
unless replacement is energy efficient or for safety and health reasons.
3. All Permitted Capital Improvement items and costs shall be approved by the APCHA staff prior to being
added to the Maximum Resale Price as defined herein. In order to get credit for an improvement where a
building permit is requved, the improvement will not be counted unless a Letter of Completion was obEained
by the Building Department.
4. The Permitted Capital Improvements shown hereon shall be subject to such additions, deletions and
modifications as may be set forth in the Guidelines from time to time; provided that if any improvement is
made at a time when it would be deemed a Permitted Capital Improvement hereunder or under the Guidelines,
such improvement shall be deemed a Permitted Capital Improvement at all times notwithstanding any
modification of the Guidelines.
(00121396.DDC / 6}
Master Deetl Restriction Page 17
~.~.
EXHIBIT "C"
,~ A
MINIMUM STANDARDS FOR SELLER TO RECEIVE FULL VAL UE AT RESALE
• Clean unit
• Carpets steam-cleaned two or three days prior to closing
• All scratches, holes, burned marks repaired in hardwood floors, linoleum, tile, counter tops etc.
• No broken or foggy windows
• All screens in windows (if screens were originally provided)
• All doors will be in working order with no holes
• All locks on doors will work
• All keys will be provided; e.g., door, mail box, gazage
• All mechanical systems shall be in working order
• Walls paint ready
• Normal wear and teaz on carpet; if carpet has holes, stains,
replaced or escrow funds at current market value per square
be held at the time of closing to be used by the new buyer
• No leaks from plumbing fixtures
• No roof leaks
• Any safety hazard remedied prior to closing
• Satisfaction of radon issue if found at time of inspection
• All light fixtures shall be in working order
DEFINITIONS:
Clean Unit:
All rooms will be cleaned as stated below:
etc., the carpet and padding shall be
foot for a compazable product shall
Kitchen:
o Range -Inner and outer services will be cleaned.
o Range hood and Exhaust Fan
o Refrigerator and Freezer -Inner and outer surfaces of refrigerator and freezer will be clean.
Freezer will be defrosted.
o Cabinets and Countertops -Exterior and interior surfaces of cabinets and drawers will be clean.
Door and drawer handles, if provided, shall be clean and in place.
o Sink and Garbage Disposal -Sink and plumbing fixtures will be clean. If garbage disposal
provided, this must be in working order.
o Dishwasher - If provided, must be in working order and inner and outer surfaces shall be clean.
• Blinds. Windows. Screens:
o Mini-blinds, Venetian Blinds, Vertical Blinds, Pull Shades -Will be clean.
o Windows -All window surfaces, inside and outside of the window glass, shall be clean.
o Screens -Screens will be clean and in place with no holes or tears.
• Closets: Closets, including floors, walls, hanger rod, shelves and doors, shall be clean.
• Light Fixtures: Light fixtures will be clean and shall have functioning bulbs/florescent tubes.
• Bathrooms:
o Bathtub, Shower Walls, Sinks -Bathtubs, shower walls and sinks shall be clean.
{00121396.DOe / 6}
Master Deed Restriction Page 18
~.
o Toilet and Water Closet -Water closets, toilet bowls and toilet seats will be clean. If the toilet
seat is broken or peeling, the seat shall be replaced.
o Tile - All the and grout will be clean.
o Mirrors and Medicine Cabinets -Mirrors and medicine cabinets shall be cleaned inside and out.
o Shelves and/or Other Cabinetry -All other shelving or cabinetry shall be cleaned inside and out.
• Walls. Ceilin¢s. Painted Doors and Baseboards: Painted surfaces must be cleaned with Gaze to ensure
the surface is clean without damaging the paint.
• Floors: Floor cleaning includes sweeping and mopping and could include stripping, waxing and buffing.
Types of floor surfaces include wood, wood parquet tiles, linoleum, asphalt tile, vinyl tile, mosaic tile,
concrete and carpet. If carpet, all carpets shall be cleaned at least two days prior to closing.
• Interior Storaee/Utility Rooms: Storage/utility rooms shall be cleaned. Properly cleaned storage/utility
rooms will be free from odors, removable stains, grease marks or accumulations.
Safety Hazard: Any item that provides a safety hazard shall be fixed. This would include, but is not
limited to, exposed electrical wiring, satisfaction of any radon issue found, ventilation for gas hot water
system, etc.
Wa!!s Paint-Readv: All holes shall be patched; all posters, pictures, etc., shall be removed from all walls;
all nails, tacks, tape, etc., shall be removed from all walls; and all walls shall be clean and ready for the new
buyer to paint. If wallpaper has been placed on the wall and in good condition, the wallpaper can remain; if
the wallpaper is peeling off, the wallpaper must be removed.
Windows: If a window is broken, including the locking mechanism, the window shall be replaced. If the
window has a fog residue in the inside, it shall be replaced.
{00121396. DOC / 6}
Maetei Oeetl Restriction Page 19
CITY OF ASPEN
PRE-APPLICATION CONFERENCE SUMMARY
PLANNER: Drew Alexander, 429-2739 DATE: 05/15/09
PROJECT: 410 West End Condominiums Subdivision
OWNER: 410 West End, LLC
REPRESENTATNE: Lennie Oates
TYPE OF APPLICATION: Condominiumization
DESCRIPTION: The prospective Applicant would like to condominiumize the existing structure, recorded
under Book 81, Page 2, and Ord. 9 Series of 2006. The property consists of two (2) free-
market residential units, and three (3) affordable housing units. Staff detailed that all
certificates of occupancy must be provided for the affordable housing units before the free-
mazket units can be occupied. No Historic Designation. Condominiumization review (which
is a form of subdivision) is required in order to create a condominium form of ownership
Land Use Code Section(s)
26.304 Common Development Review Procedures
28.480.090 Condominiumization
Review by: -Staff for complete application
- Community Development Director for Condominiumization
Public Hearing: No hearing required
Planning Fees: $735.00 Deposit for 3 hours of staff time (additional staff time required is billed at $235 per hour)
Referral Fees: None
Total Deposit: $735.00
Total Number of Application Copies:
Subdivision and associated reviews: 2 Copies
To apply, submit the following information:
1. Total Deposit for review of application.
2. Applicant's name, address and telephone number, contained within a letter signed by the applicant
stating the name, address, and telephone number of the representative authorized to act on behalf of the
applicant.
3. Street address and legal description of the parcel on which development is proposed to occur, consisting
of a current certificate from a title insurance company, or attorney licensed to practice in the State of
Colorado, listing the names of all owners of the property, and all mortgages, judgments, liens,
easements, contracts and agreements affecting the parcel, and demonstrating the owner's right to apply
for the Development Application.
4. Completed Land Use Application.
5. Signed fee agreement.
6. Pre-application Conference Summary.
7. An 8 1/2" x 11" vicinity map locating the subject parcel within the City of Aspen.
8. Proof of ownership.
9. Proposed condominium plat.
10. A written description of the proposal and a written explanation of how a proposed development
complies with the review standards relevant to the development application.
11.A11 other materials required pursuant to the specific submittal requirements.
-~..
Disclaimer:
The foregoing summary is advisory in nature only and is not binding on the Ciry. The summary is based on current zoning, which is
subject to change in the future, and upon factual representations that may or may not be accurate. The summary does no[ create a
legal or vested right.
LAW DEE~DEE GF
OATES, KNEZEVICH, UARDENSWARTZ ~ KELLY, P.C.
PROFF-SSIONAL CORPORATION
THIRD FLOOR, ASPEN PLAZA 9UILDING
533 E HOPKINS AVENUE
ASPEN. COLORADO. Bt81t
LEONARD M. UATE$
RICHARD A KNEZEVICH
TED D.GARDENSWARTZ
DA.VIU B. KELLY
MARIA MORROW
O. COUNSEL
JOHN t KELLV
SIEPHENR GONNOR
ANNE MARIE MCPHC
STAGY PEINBERG
,nlLNUY C EOSTVEDT
May 21, 2009
Drew Alexander, Staff Planner
City of Aspen, Community Development Dept.
Aspen City Hall
130 S. Galena
Aspen, CO 81611
TELEPHONE (970) 9204 ] W
FACSIMILE (W01420-'.12t
Imo@orylaw com
VIA HAND DELIVERY
Re: Application for Condominiumization ojProject at 410 West End, LLC/410 West End
Townhomes Condominiums
Dear Drew:
You will please find enclosed herewith the following in duplicate
L City of Aspen Application Conference Summary dated May I5, 2009.
2. City of Aspen Community Development Department Agreement for Payment of City of
Development Aspen Application.
3. Attachment #2- Land Use Application.
4. Authorization Agent to File and Process Application.
5. Copies of Ordinance # 9, Series of 2006.
6. Copies of Subdivision Agreement.
7. Proposed form of Condominium Map.
8. Current title commitment reflecting status of title to the subject property.
9. 8" x I 1 " vicinity map locating the subject parcel within the city of Aspen.
0. Applicant's check in the amount of $735.00.
Please advise as to the completeness of the within application and contact me in connection with
any issues that may arise in connection with the review thereof.
I am by copy of this letter forwarding to Cindy Christiansen at Aspen Pitkin Housing Authority a
copy of this application together with the approved form of Deed Restriction with a request that the
same be executed by APCHA.
I,MOASST - Dara:Clients - LMDPmvine, lohn'.PUrchase of 410 West End:Ltr to Drew Alexander 5 I6 09 doc
^~
OA11:S, KNEZEVICH, GARDENSWAR I~Z ~ KELLY P.C.
May 21, 2009
Page 2
Very Truly Yours,
GATES, KNEZEVICH~ GAHDENSWARTZ & KELLY, P.C.
Leonazd M. Oates
Encl.
LMO/eh
cc: Cindy Christiansen
cc: Curtis Sanders