HomeMy WebLinkAboutcoa.lu.co.200 E Durant Ave.A055-97 MEMORANDUM
TO: Stan Clauson, Community Development Director
THRU: Julie Ann Woods, Deputy Dir or •
FROM: Christopher Bendon, Planner
RE: Towne Place Condominiumization Plat
DATE: August 11, 1997
Michael Herron, representing Towne Place L.L.C., has applied for a subdivision
exemption for the Condominiumization of Towne Place of Aspen at 204 East Durant
Avenue. Currently the project is owned by a limited liability partnership. I have referred
this application to the Development Review Committee and the applicant has responded
to the suggested modifications to the draft plat. There are no other proposed
improvements to the site, it is a permitted use in the L /TR zone district, and there are no
other land use issues involved or approvals required. The Community Development
Director may approve subdivision exemptions pursuant to Section 26.88.070. I am
recommending approval of this condominiumization with no conditions.
AP PROVED
Approved:
CLks ttka
oYTh
Stan son, Director GOM t{OF
GARNELD & flECFT, F.C.
AI"IORN EYS Al LAW
RONALD GAREIELD* TELEPHONE
ANDREW V. IIECIII ** VICTORIAN SQUARI( HUH .DING (970) 925 -1936
MICHAEL I. HE_RRON * ** ELECOPIER
601 EAST IIYMAN AVENUH T
DAVID L. LENYO (970) 925 -3008
MATTHEW C. FERGUSON* ASPEN. COLORADO 81611 E -mail
KRISTI S PERRARO * * ** garhechtg ?rof.net
*also admitted August 11, 1997
• mt Ber ork ^ D m admitted o f CA rt,
Dliviao(Col M1ia ❑ar
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Flurida Ear
*alro amflmen to
Pennsylvmila Bar
HAND DELIVERED
Mr. Christopher Bendon, ASLA - Planner
Aspen /Pitkin Community Development Dept.
130 South Galena Street
Aspen, CO 81611 -1975
Re: Towne Place of Aspen Condominium
Dear Christopher:
In connection with the above - referenced condominium and the application filed July 25,
1997, enclosed your will find two mylars of the Plat containing all of the changes requested by
Chuck Roth of the Engineering Department. The Plat has been executed by the owner, title
company, and mortgagee.
I enclose our firm's check in the amount of $11.00 made payable to the Pitkin County
Clerk SL Recorder to cover the recordation of the Plat.
It would be appreciated if you could arrange for the Plat to be executed by the Planning
Director and the Engineering Department and deliver same to Kathryn for recordation. I would
appreciate your requesting she advise me when it is recorded as there are closings scheduled which
depend upon this recordation.
I thank you for your cooperation in this regard.
Very truly yours,
Michael J. Herron
MI H /kl
Enclosures
cc: Evan Korn (via fax)
CMJERTOW NEPLC\LTRSEENDON.LT2
GARll IIELD sr HECHT, P.C.
Al IORNILYS AT I.AW
RONALD GARFIELD* TFl EPHONL
ANDREW V.IIECHT ** VICIORIAN SQUARE NMI DING (970) 925 -1936
MICHAFI.J. HERRON * ** TELECOPIFI2
601 EASE IIYMAN AVENUE
DAVID L. LENYO (970) 925 -3008
MATTHEW C. FERGUSON* ASPEN, COLORADO 81611 E -mail
KRISTI S. I LRRARO * * ** garliechturot: net
July 25, 1997
also edmlued m
•• Dlsvlot of Culunibia Bar
a�ao ad,icd ,
rmdna Bar
•• •also xmilucd to
v<ox Ivsttta Bar
HAND DELIVERED
Mr. Christopher Bendon, ASLA - Planner
Aspen /Pitkin Community Development Dept.
130 South Galena Street
Aspen, CO 81611-1975
Re: Towne Place of Aspen Condominium
Dear Christopher:
In connection with the above - referenced condominium, enclosed you will find
the following:
(A) Original and one (1) copy of Consent to Representation;
(B) Towne Place, LLC's check made payable to the Community Development
Department in the amount of $355.00. The sum required pursuant to the Pre -
Application Conference Summary dated July 15, 1993;
(C) Original and one (1) copy of Certificate of Ownership;
(D) Two copies of prior Approvals;
(E) Two copies of Plat recorded in Plat Book 39, Page 77; and
(F) Two copies of proposed Condominium Plat.
6ARFIE.D & UECHT, P.C.
Mr. Christopher Bendon
July 25, 1997
Page 2
Be advised that this property is located at 200 -216 Cooper Avenue, Aspen,
Colorado. The enclosed Plat satisfies all of the requirements of the City of Aspen set
forth in Code Section 26.52.030 and this letter and the enclosures are intended to
satisfy Chapter 26.52.
Subdivision has previously been approved for the property and this application
constitutes the request for the completion of condominiumization by the recordation
of the enclosed Plat.
It would be greatly appreciated if you could advise me, at your earliest
convenience, whether the Plat is acceptable so that mylars can be brought in for
recordation.
In addition, as per your request, I enclose a copy of the Condominium
Declaration which will be recorded immediately prior to the Plat.
Very truly yours,
44412 %tint- la—,
Michael J. Herron (Dictated but not read)
MJH /asg
Enclosures
cc: Evan Korn (via fax)
C NIJMTOWNEPLC LTRS\BENDON.LTR
CONSENT TO REPRESENTATION
TOWNE PLACE, LLC, a Colorado limited liability company, hereby consents
to its representation of the condominiumization of Towne Place of Aspen
Condominiums by Garfield 8i Hecht, P.C. In addition, the undersigned agrees to pay
any additional fees which may be necessary to the City of Aspen Community
Development Department in connection with this application over and above the initial
fee.
Dated this7t/ day of July, 1997.
/ TOWNE PLACE EN, LLC
By f7
CAM)X TOWNEPLQDOCS CONSENT.003
CERTIFICATE OF OWNERSH..- Q
Pitkin County Title, Inc., a duly licensed Title Insurance Agent in the
State of Colorado hereby certifies that TOWNE PLACE LLC, A COLORADO LIMITED
LIABILTY COMPANY is the Owner in Fee Simple of the following described
property:
CARRIAGE HOUSE SUBDIVISION AND PLANNED UNIT DEVELOPMENT, according to the Plat
thereof recorded June 9, 1995 in Plat Book 37 at Page 44.
COUNTY OF PITKIN, STATE OF COLORADO.
Subject to encumbrances, easements and rights of way of record.
This certificate is not to be construed to be a guarantee of title and
is furnished for informational purposes only.
PITKI COUNT TLE, INC.
PY: A..
authori 4jignature
CERTIFIED TO: JUNE 20, 1997 @ 8:30 A.M.
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388123 8 -801 P -908 12/08/95 11:538 PG 1 OF 2
REC DOC I
SILVIR DAVIS PITKIN COUNTY CLERK & RECORDER 11.00 195.00
GENERAL WARRANTY DEED
Qr
O
2
O S.G.A. ASPEN LIMITED LIABILITY COMPANY, a Colorado
R Limited Liability Company, whose address is c/o Oates, Hughes & Y
u. Knezevich, P.C., 533 E. Hopkins, Aspen, CO 81611 for the consider- di
ation of Ten Dollars ($10.00), and other good and valuable
„ in hand paid, hereby sells and conveys to TOWNE PLACE N
ry, LC, a Colorado Limited Liability Company, whose address is c/o � m
U F I
p Garfield & Hecht, P.C., 601 E. Hyman Ave., Aspen, CO 81611, the
following described real property in the County of Pitkin, State of m
Colorado, to wit: n
m
v
CARRIAGE HOUSE SUBDIVISION AND PLANNED UNIT DEVELOPMENT, o
according to the Plat thereof recorded June 9, 1995 '
in Plat Book 37 at Page 44 7
n
m
also known as 204 S. Durant St., Aspen, CO 81611 with all its m
appurtenances, and warrants the title to the same, subject to and a
except for:
co
1. General taxes for 1995 and thereafter; co
cl
cI
0 2. Building and zoning regulations;
NJ 3. Reservations and exceptions as set forth in Deeds
recorded in Book 59 at Page 330 and in Book 59 at Page 559;
ID 4. Terms, conditions, restrictions, reservations,
6 provisions and obligations as set forth in Encroachment Agreement
W G x recorded in Book 507 at Page 512;
a H
a' 5. Terms, conditions, provisions, obligations and all
t matters as set forth in Subdivision Improvements Agreement recorded
H �� in Book 783 at Page 93;
O . 6. Easements, rights of way and all matters as
--Q disclosed on Plat of subject property recorded in Plat Book 37 at
Page 44;
7. Terms, conditions, provisions, obligations and all
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388123 P -801 P -909 12/08/95 11:53A P6 2 OF
matters as set forth in Ordinance recorded in Book 771 at Page 487;
all reference being to the Pitkin County, Colorado real property
records.
SIGNED this jV day of rc.4• , .. , 19
S.G.A. ASPEN LIMITED LIABILITY COMPANY,
a Colorado L' lit - . Liability Company
BY 1. /a
enne h L. S1Trmm•TMernrger
STATE OF �Z,�.e /a
ss.
COUNTY OF 4/m , _
The foregoing instrument wascknowledged before me this
L/ day of �e„�, �• �� , 19 9 by Kenneth L. Shimm, as a
Manager of S.Q.A. Aspen Limited Liability Company.
WITNESS my hand and official seal.
My commission expires:
ZAYNA
MAR
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. M oan co at
sib mac!
* * Dond an. `
1� 417. 7- 7 - Publl A
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382070 8-783 P -93 06 /0r./ 35 03:46P PR 1 OF 28 REC DOC
SILVIA DAVIS PITKIN COUNTY CLERK: & RECORDER 140.00
SUBDIVISION /PLANNED UNIT DEVELOPMENT AGREEMENT
FOR
THE CARRIAGE HOUSE SUBDIVISION
(formerl) 104 flirt Durst Project)
THIS AGREEMENT is made and entered into as of the G day of�
1995, by and between THE CITY OF ASPEN, COLORADO, a Municipal corporation
(hereinafter referred to as "City") and S.G.A. Aspen Limited Liability Company (hereinafter
referred to "Owner "), with reference to the following:
RECITALS
WHEREAS, Owner has submitted to the City for approval, execution and recordation
a Final Subdivision and Planned Unit Development Plat (hereinafter referred to as the "Plat ")
concerning the construction of four (4) fully self - contained three (3) bedroom free market
dwelling units and four (4) affordable housing units comprising one -2 bedroom unit, two-1
bedroom units and one studio unit on real property owned by Owner more fully described as
being (hereinafter referred to as the "Property "):
Lots K, L, M, N & O, Block 77
City and Townsite of Aspen
Pitkin County, Colorado
The foregoing described project, which was reviewed and approved under the name 204 East
Durant Project, is to be known as "The Carriage House Townhome Condominiums" and will
be hereinafter referred to as the "Project "; and
WHEREAS, at meetings held on July 5, and August 2, 1994, the City Planning and
Zoning Commission (a) recommended to the Aspen City Council that it grant subdivision
approval for the Project and approve a zoning text amendment to allow parking on garage aprons
in multi- family projects; and (b) granted Special Review approval for parking for the affordable
. 382070 8 -783 P -94 06/09/95 03:46P PG 2 OF 28
housing component of the Project, including parking on garage aprons (based upon the proposed
zoning text amendment); and
WHEREAS, at a public hearing held on November 22, 1994, the City Planning and
Zoning Commission, by its Resolution No. 94 -36, a copy of which is hereto annexed as Exhibit
"A ", granted further Special Review approval to reduce from four (4) to three (3) spaces the
number of on -site parking spaces for the affordable housing component of the Project and
recommended to the City Council that it approve a Planned Unit Development ( "PUD ") overlay
for the Property and a PUD variance of the side yard set -back for the Project; and
WHEREAS, on December 12, 1994, the City Council adopted Ordinance No. 49 (Series
of 1994), a copy of which is hereto annexed as Exhibit "B" ( "Ordinance 49 ") and Ordinance No.
65 (Series of 1994), a copy of which is hereto annexed as Exhibit "C" ( "Ordinance 65 "), by
which it granted, inter alia, a Growth Management Quota System ( "GMQS ") exemption and
Subdivision approval for the Project, a PUD designation for the Property, and a side yard set-
back variation from five (5) to zero (0) feet for the westerly boundary of the Property, and
conferred upon the Project a vested right for the three (3) year period next succeeding the
effective date of the Ordinances in accordance with and pursuant to the terms of Section 6 -207
of the Land Use Regulations of the City of Aspen; and
WHEREAS, the City Council is willing to approve, execute and accept the Plat for
recordation on the condition that Owner agrees to all matters contained in this Agreement; and
WHEREAS, the City desires to impose certain conditions and requirements in connection
with its approval, execution and recordation of the Plat as are necessary to protect, promote and
enhance the public welfare; and
WHEREAS, Owner is willing to acknowledge, accept, abide by and faithfully perform
all of the conditions and requirements imposed by the City; and
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362070 B -78 P -95 06/09/93 03:46P Pr 3 OF 28
WHEREAS, pursuant to Section 7 -1005 of the Land Use Regulations of the City of
Aspen, the City is entitled to assurances that the matters hereinafter agreed to will be faithfully
performed by Owner and its successors and assigns; and
WHEREAS, Owner is willing to provide such assurances to the City.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants
herein contained, and the approval, execution and acceptance of the Plat for recordation by the
City, it is mutually agreed as follows:
A. CONSTRUCTION SCHEDULES
The City and Owner acknowledge that exact construction schedules cannot be determined
or agreed to at this time. It is, however, anticipated that the construction of the Project will
begin no later than three (3) years from the vesting of the Owner's property rights in the Project
or by December 12, 1997. Thereafter, construction shall proceed apace in accordance with the
provisions of that edition of the Uniform Building Code in effect and as adopted and amended
by the City at the time of building permit issuance. At the time of application for a building
permit for any portion of the Project, including the installation of public improvements, Owner
shall provide the City Engineering Department with a precise construction schedule for that
particular phase of construction to the reasonable satisfaction of the Engineering Department and
chief building official.
Prior to any vegetation alteration or tree removal, Owner shall advise and consult with
the City Park's Department. Additionally, prior to commencement to any of such work, Owner
shall obtain necessary permits from the City Street's Department for any work or development
within public rights -of -way. Prior to any demolition of existing improvements on the Property,
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:82070 B -783 P -96 06/09/95 03:46P PO 4 OF 28
or grading, excavation or material storage of or on the Property, the trees on the Property that
are to be retained shall be protected by the placement of barricade fencing within five (5) feet
of the dripline of such trees. The fencing type and location shall be approved by the Parks
Department prior to any earthmoving work on the Property.
B. CONSTRUCTION OF PUBLIC IMPROVEMENTS
Prior to and as a condition to the issuance of Certificate of Occupancy for any of the
dwelling units comprising Project:
1. Sidewalks. Curb and Gutter. Owner shall install a concrete sidewalk,
curb and gutter along East Durant and Aspen Streets. The sidewalk shall be at least five (5)
unobstructed feet in width. The final design of the sidewalk, curb and gutter shall be submitted
to The City Engineering Department for its reasonable approval and shall, to the greatest feasible
extent, minimize impacts to and upon existing trees. The Owner shall work with the
Engineering and Park's Department during installation of the sidewalk, curb and gutter and
during any necessary pruning of trees on the Property.
2. Financial Assurances. Owner agrees to secure performance of the
construction and installation of foregoing described public improvements and to guarantee one
hundred percent (100 %) of the estimated cost of such improvements which estimated cost, as
approved by the City Engineer, is as of the date hereof agreed to be Forty-Four Thousand and
no /100ths Dollars ($44,000.00). Owner shall guarantee such cost, together with any increase
thereof (calculated as below set forth) occurring between the date hereof and the time of
commencement of the installation of such improvements, in the form of a cash escrow with the
City or a bank or savings and loan association, or by an irrevocable site draft or Letter of
commitment from a financially responsible lender that funds in the amount of such estimated
costs are held by it for the account of Owner for the construction and installation of the
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7)82070 E -_783 P - 06/09 03 :46P PG 5 OF 28
foregoing described public improvements. This guarantee shall be delivered to the City prior
to the issuance to Owner of a building permit for any part of the Project, shall be in a form
acceptable to the City Attorney, and shall give the City the right, upon clear and unequivocal
default by Owner, to withdraw funds as necessary and upon demand, partially or fully to
complete or pay for any of the foregoing described public improvements or pay any undisputed
outstanding bills for work done thereon by any party, with any excess guarantee amount to be
applied first to additional administrative or legal costs associated with any such default before
the unused remainder (if any) of such guarantee is released to Owner. As portions of the
required improvements are completed, the City Engineer shall inspect, and upon approval and
written acceptance, shall authorize the release from the guarantee delivered by Owner of the
agreed estimated cost for that portion of the improvements, except that ten percent (10 %) of the
estimate cost shall be withheld until all proposed public improvements are completed and
approved by the City Engineer. For purposes of arriving at the amount of the financial
guarantee that shall be posted by the Owner, the cost of the public improvements, as above set
forth, shall be increased by the cumulative increase occurring between the date hereof and the
time of commencement of installation of the public improvements in the Consumer Price Index -
All Urban Consumers - U.S. City Average - All Items published by the United States Department
of Labor, Bureau of Labor Statistics.
C. CITY ENGINEERING
Prior to the issuance of a building permit for any portion of the Project, Owner shall
consult with the City Engineering Department with respect to the engineering considerations set
forth below, and shall:
a. Prepare and submit, for the review and reasonable approval of the
City Engineering Department, a storm water drainage plan complying with the guidelines set
forth in Section 7 -1004, C.4.f of the Land Use Regulations of the City of Aspen. Evidence of
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• 82070 13-783 - -98 06/08, 1.:c4 F 13 6 OF 28
the acceptance of such plan by the engineering department shall be presented to the authority
issuing the building permit.
b. Prepare and submit, for the review and reasonable approval of the
City Engineering Department, a parking plan for the Project which illustrates the size and
location of all parking spaces and planters. All garage aprons shall be snow - melted. The
constituent condominium documentation for the Project shall confirm that all utility and
maintenance costs associated with the snow melt systems incorporated into the parking areas
shall be born entirely by the free market component of the Project. Additionally, parking for
any affordable housing unit that does not have a designated parking space shall occur on the
garage apron of the free market unit with which such affordable housing unit is associated.
c. Prepare and submit, for the review and reasonable approval of the
City Engineering Department, a site plan for the Project, which shows a trash and recycle area,
utility meters, and other above grade equipment installations.
D. ZONING ENFORCEMENT
Prior to issuance of the building permit for any portion of the Project, Owner shall
prepare and submit, for the review and reasonable approval of the City Zoning Enforcement
Officer (a) an open space plan indicating the areas counted as open space pursuant to the
definition thereof set forth in Section 24 -3 -101 of the Land Use Regulations of The City of
Aspen, and (b) height information for the Project in accordance with Section 24 -3 -101 of the
Land Use Regulations of The City of Aspen.
E. WATER DEPARTMENT
The Owner shall connect water service to the Project from the 20" water main located
in Durant Avenue and shall verify the fact of connection, to the reasonable satisfaction of the
City Water Department, during the building inspection process. The Owner shall, as well, pay
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382070 P• -783 P -99 06/09/95 03:46P PG 7 OF 28
its share of the costs associated with the abandonment of the existing 6" water line in Durant
Avenue. Owner's proportionate share of the cost shall be based on a fair and ratable allocation
of the total cost of abandonment among all Property Owners abutting Durant Avenue in the
proximity thereof where the line is to abandoned. The Owner shall be respopsible for timely
contacting the water department to review the proposed plans for the Project to establish the
amount of the utility connection charges and review detailed plans to provide water service,
including water metering of the proposed dwelling units in the Project.
F. FIRE PROTECTION
The Project shall be constructed with a residential sprinkler and alarm system, which will
be disclosed on the building plans prior to issuance of a building permit.
G. LANDSCAPING IMPROVEMENTS
Owner shall install landscaping within the Project consistent with a landscape plan to be
submitted prior to issuance of a building permit for any component of the Project, which shall
depict, inter alia, plant material, post- treatment of ground surfaces and other landscape features.
Landscaping shall be completed in an orderly, logical sequence consistent with planting seasons,
climatalogical conditions and construction scheduling. Prior to the issuance of a building permit
for any component of the Project or the start of any earth- moving activities, the landscape plan
shall be reviewed and approved by the Park's Department. Owner agrees to insure
implementation of the landscape plan and its maintenance for the two (2) year period next
succeeding its installation and to guarantee one hundred and twenty-five percent (125 %) of the
current estimated cost thereof. Owner shall guarantee such cost in the form of a cash escrow
with the City, or a bank or savings and loan association or by an irrevocable site draft or letter
of commitment from a financially responsible lender. This guarantee shall be delivered to the
City prior to the issuance to Owner of a building permit for any part of the Project, shall be in
a form acceptable to the City Attorney and shall give the City the right, upon clear and
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unequivocal default by Owner, to withdraw funds as necessary partially or fully to complete or
pay for any landscaping improvements or for the maintenance thereof or pay any undisputed
outstanding bills, with any excess guarantee amount to be applied first to additional
administrative or legal costs associated with any such default before the unused remainder (if
any) of such guarantee is released to Owner. As portions of the landscaping improvements are
completed, either the City Engineer or the Park's Department shall inspect them, and upon
approval and acceptance, shall authorize the release of the agreed estimated for that portion of
the improvements, except that ten percent (10%) shall be withheld until all proposed landscaping
improvements are completed and approved, and an additional twenty-five percent (25 %) shall
be withheld, which shall be retained until the improvements have been maintained in satisfactory
condition for two (2) years.
H. AFFORDABLE HOUSING UNITS
Prior to the issuance of any building permit for the Project, the applicant shall prepare
and submit for the reasonable approval of the Housing Office, a schedule showing the quality
of fixtures, fmish and amenities to be incorporated into the affordable housing units, and shall,
as well, record a Housing Office approved Deed Restriction for the affordable housing units.
A copy of the Deed Restriction shall be forwarded to the Planning Office. The affordable
housing units shall be deed restricted as follows:
Unit 1 Category #2 (2 bdrm, 850 net livable sq. ft.)
Unit 2 Category #1 (1 bdrm, 600 net livable sq. ft.)
Unit 3 Category #2 (1 bdrm, 600 net livable sq. ft.)
Unit 4 Category #2 (Studio, 400 net livable sq. ft.)
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The affordable housing units shall not be sold as appurtenances to the free market units. They
may be sold to qualified individuals or conveyed to an association of the free market unit
owners, which will oversee the rental of the affordable housing units to qualified individuals
pursuant to the applicable deed restriction. Those tenants of the Property as of December 12,
1994 shall, by the Housing Authority Board, be given the first priority to rent the affordable
housing units at such time as they become available for rental; provided that the Housing
Authority Board shall have the right first to confirm that such tenants are otherwise qualified
pursuant to the applicable Housing Office Guidelines.
Prior to the issuance of a building permit for any portion of the Project, the Owner shall
redesign the entry into the affordable housing units to assure that any sloping roof does not shed
snow onto the entry way.
I. NON - COMPLIANCE AND REQUESTS FOR
AMENDMENTS OR EXTENSIONS BY OWNER
In the event the City Council determines that Owner is not acting in substantial
compliance with the terms of this Agreement, the City Council may issue and serve upon Owner
a written order specifying the alleged non - compliance and requiring Owner to remedy the same
within such reasonable time as the City Council may determine. Within twenty (20) days of the
receipt of such order, Owner may file with the City Council either a notice advising the City
Council that it is in compliance, or a written petition requesting a hearing to determine any one
or both of the following matters:
(i) whether the alleged non - compliance exists or did exist, or
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382070 B-783 P -102 0b /Og'95 03:46P Pia 10 OF r8
(ii) whether a variance, extension of time, or amendment to this Agreement
should be granted with respect to any such non - compliance which is
determined to exist.
Upon the receipt of such petition, City Council shall promptly schedule a hearing to consider
the matters set forth in the notice and in the petition. The hearing shall be convened and
conducted pursuant to the procedures normally established by the City Council for other
hearings. If the City Council determines by a preponderance of the evidence that a non-
compliance exists which has not been remedied, it may issue such orders as may be appropriate;
provided, however, no order terminating any approval granted herein shall be issued without a
finding by the City that substantial evidence warrants such action and affording Owner a
reasonable time to remedy such non - compliance. A final determination of non - compliance,
which has not been remedied or for which no variance has been granted may, at the option of
the City Council, and upon notice to Owner, terminate any of the approvals contained herein
which are reasonably related to the requirement(s) with respect to which Owner has failed to
comply. Alternatively, the City Council may grant such variances, extensions of time or
amendments to this Agreement as it may deem appropriate under the circumstances. In addition
to the foregoing, Owner or its successors or assigns, may on Owner's own initiative petition the
City Council for a variance, an amendment to this Agreement or an extension of one or more
of the time periods required for performance under construction schedules or otherwise. The
City Council may grant such variances or amendments to this Agreement or extensions of time
as it may deem appropriate under the circumstances.
J. MISCELLANEOUS PROVISIONS
1. Notices. Notices to be given to the parties to this Agreement shall be deemed
given if personally delivered or if deposited in the United States Mail to the parties by registered
or certified mail at the addresses indicated below, or at such other addresses as may be
substituted upon written notice by the parties or their successors or assigns:
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382070 B -783 P -103 06/09/95 03:46P PG 11 OF 28
If to the City of Aspen: City Manager
130 S. Galena Street
Aspen, CO 81611
If to the Owner: S.G.A. Aspen Limited Liability Company
c/o Robert W. Hughes, Esq.
Oates, Hughes & Knezevich, P.C.
533 E. Hopkins, Third Floor
Aspen, Colorado 81611
2. Ordinances to Survive. Any of the terms and conditions to and of the approval
of the Project or obligations on the Owner's part to be performed as set forth in Ordinance 49
and Ordinance 65 and not specifically addressed in this Subdivision Agreement shall nonetheless
survive the execution, delivery and recordation of this Subdivision Agreement and the Plat.
3. Incorporation of Representations. All material representations made by the
Owner in its applications for land use approvals and at the public hearings thereon shall be
deemed to be conditions of approval and are incorporated by reference as though set forth
herein. The City shall, upon request from any interested party, including Owner, prospective
purchasers and lenders, issue appropriate written certification as to the compliance or as the case
may be applicable, non - compliance of any component of the Project with such representations.
In the event the City fails to respond to any such request within ten (10) days following the
request, then the Project shall be conclusively deemed to be in compliance with all of such
representations as of the date of the request and the party making the request shall have the right
to rely accordingly.
4. Binding Clause. The provisions hereof shall run with and constitute a burden
upon the title to the Property and shall be binding upon and shall inure to the benefit of Owner
and the City, together with their respective heirs, personal representatives, successors, grantees
and assigns.
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5. Applicable Law. This Agreement shall be subject to and construed in accordance
with the laws of the State of Colorado and the Municipal Code of the City of Aspen.
6. Severabilitv. If any of the provisions of this Agreement or any paragraph,
sentence, clause, phrase, word or section of the application thereof in any circumstance is
invalidated, such invalidity shall not affect the validity of the remainder of this Agreement and
the validity of any such provision, paragraph, sentence, clause, phrase, word or section under
any other circumstances shall not be affected thereby.
7. Entire Agreement - Amendment. This Agreement contains the entire
understanding and agreement between the parties hereto with respect to the transactions
contemplated hereby and may be altered or amended from time to time only by written
instrument executed by each of the parties hereto.
8. Acceptance of Plat - Ratification by Owner. Upon execution of this Agreement
by all parties hereto, the City agrees to approve and execute the Final Subdivision Exception Plat
for the project and to accept the same for recordation in the recording office of Pitkin County,
Colorado, upon payment of the recordation fee and costs to the City by Owner. For his part,
Owner hereby ratifies and confirms each and every representation and public dedication made
and set forth by Owner on said Plat.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day
and year first above written.
The City of Aspen, Colorado,
a municipal corporation
Attest:
By: 41 lia. By: Yg"
Kathryn S oc,, City Clerk Mayor
(signature continual)
- 12 -
382 070 B -7E13 P-105 06/09/95 03:46P PG 13 OF 28
APPROVED AS TO FORM: S.G.A Aspen Limited Liabili Company
Robert 1. a ;ni, ' an:: dr
John Worcester, City Attorney ' obert . H'he ,, 's aTy ey in fact
( enne'' . \1 ii
By: . ♦ 1 iL...
Robert W. Hughes, his . • ey in fact
STATE OF COLORADO )
) ss.
COUNTY OF PITKIN )
The foregoing instrument 4a; acknowledged before me this '• t tom day of
. ...Jay , 1995, by t'z,u as Mayor of the City of Aspen, a Municipal
• tion and by S. Koch, City Clerk.
4 -QTq ` 1 4NITNESS my hand and official seal.
•r
,{ •. ,��'t1� -' ' sly, commission expires:2,7 7/�9 /
• Notad 'J ublic
STATE OF SO / )
ss.
COUNTY OF / ) /
The foregoing instrument was acknowledged before me this (5 day of
(/)(Q i , 1995, by Robert W. Hughes as attorney in fact for Robert Guarini, as
ger of S.G.A. ASPEN LIMITED LIABILITY COMPANY.
_ , -... WITNESS my hand and official seal. ,..,,,
,mot F hey commission expires: 1 `/ -9 7
s [tom -iv, 1 • 1,3 t ' P ; r i : N Public 55 � GL/ /U (. f G9 /69
(acknowledgement, continued) / `-C "d �/
- 13 -
382070 8 -783 P -106 06/09/95 03:46P PG 14 OF 28
STATE OF 04ILDKf4LY; )
ss.
COUNTY OF /TKlnt )
The foregoing instrument was acknowledged before me this (Pi _ day of
, 1995, by Robert W. Hughes as attorney in fact for Kenneth L. Shinun,
nager of S.G.A. ASPEN LIMITED LIABILITY COMPANY.
WITNESS my hand and official seal.
a ' ' 'commission expires: Hy ,q9
f�' 4r
. i ---)
•
1 � ' / 5 otary Public i .
3 i
1
t A T i
� (€ / � � 'of
'i � l '.aa. ' O � \.J.a.�'a , `_ 1 / / '
d:lfh\abhnmWbdivisim.aer
•
- 14 -
JUN 09 '95 03:45. CITY OF PSPEN '•��3
RESOLUTION 01' TEE ASPEN PLANNING AND BONING COMMISSION
GRANTING SPECIAL REVIEW APPROVAL 701 TED
N.- Opp -STREET TIMING REQUIREMENTS 701 TEE
POUR AJIORDABLE MOUSING UNITS
AT 204 EAST DURANT AND RECOMMENDING PUD OVERLAY APPROVAL
TO CITY COUNCIL
(BLOCK 77, LOTS X, L. X, N, AND 0,
CITY AND TOWNSITE 07 ASPEN)
Resolution NO. 94-3‘
WHEREAS, pursuant to Section 24- 5- 301(8) of the Aspen Land Use
Regulations the off - street parking requirements for all affordable
housing shall be established by special review; and
WHEREAS, pursuant to the special review requirements in
Section 24- 7- 404(B) parking for affordable housing units may be
approved by the Planning and Zoning Commission if the requirements
of this provision are met by the applicant; and
WHEREAS, the Planning Office received an application from SGA
Limited Liability Company, represented by Sunny Vann, for GMQS
exemption for reconstruction of a multi - family structure,
subdivision, text amendment, and special review for affordable
housing parking; and
WHEREAS, a public hearing was conducted on July 5, 1994, at
a regular meeting of the Aspen Planning and Zoning Commission, in
which the Commission considered the applicant's request and voted
7 -0 for spacial review approval for the affordable housing parking
plan; and
WHEREAS, the applicant submitted a revised land use
application in which the Applicant has requested a western side
yard PUD variance to zero feet and a special review request to
provide a total of throe parking spaces for the four affordable
dwelling units; and
WHEREAS, a public hearing was conducted on November 22, 1994,
at a regular meeting of the Aspen Planning and Zoning Commission,
in which the Commission considered the Applicant's revised land use
application and voted 6 -1 for the affordable housing parking plan.
NOW, THEREBORE BE IT RESOLVED by the Commission:
• That the 204 East Durant project has been approved to provide three
off- street parking spaces for the four affordable dwelling units
provided within this project. The configuration of the parking
spaces shall be that which is shown on the site plan included in
the revised application packet and is subject to the following
conditions:
1. The applicant shall work with the Engineering and Parks
382070 8 -783 P -1007 06/09/95 03:46P Pr 15 GAF 28
SUN 09 '95 03:44Pi, TTY OF RSPEN
3822170 B -733 P-102 06/09/95 03 :46P PG 16 OF 28
Department during installation of the sidewalk and pruning of
the trees..
2. Tha Subdivision /PUD Agreement shall permit the affordable
housing of its associated free marketkunitpaca to
s
park on the
3. All material representations made by the applicant.in the
con public shall
sideredc conditions of approval, otherwise amended
by other conditions.
APPROVED by the Commission at its regular meeting on November 22,
1994.
•
Attest:
0,4444/ • ��
Planning and Zoning C sion:
Jan � -rney, w. Bruce Kerr,
Depu City Cler Chair
•
•
•
`.� 2
•
377968 3 -771 P- 487 01/11/95 11:08A PG 1 OF 7 REC DOC
SILVIA DAVIS PITKIN COUNTY CLERK & RECORDER 35.00
ORDINANCE NO. 49
(SERIES OF 1994)
AN ORDINANCE OF THE CITY OF ASPEN GRANTING GMQS EXEMPTION FOR
THE CONSTRUCTION OF FOUR AFFORDABLE HOUSING UNITS
AND FOUR FREE MARKET DWELLING UNITS UNDER THE
MULTI - FAMILY HOUSING REPLACEMENT PROGRAM, SUBDIVISION
APPROVAL AND VESTED RIGHTS FOR A PERIOD OF THREE YEARS
FOR THE 204 EAST DURANT PROJECT
WHICH IS LOCATED WITHIN BLOCK 77, LOTS X, L, M, N, AND 0,
CITY AND TOWNSITE OF ASPEN
WHEREAS, pursuant to Chapter 18 -3.3 of the Aspen Municipal
Code, an applicant may reconstruct a multi - family housing project
if the project meets the criteria of this provision of the Aspen
Municipal Code; and
WHEREAS, pursuant to Section 24- 7- 1004(C) of the Aspen
Municipal Code, City Council grants final subdivision approval; and
WHEREAS, pursuant to Section 24 -6 -207 of the Aspen Municipal
Code, City Council may grant vesting of development rights for a
site specific development plan for a period of three years from the
date of final development plan approval; and
WHEREAS, SGA Aspen Limited Liability Company, c/o Doug Allen,
( "Applicant "), as represented by Sunny Vann, submitted an
application to the Planning Office requesting construction of eight
dwelling units under the resident multi - family housing replacement
program, subdivision, vested rights, and a text amendment to allow
parking on garage aprons in multi - family projects; and
WHEREAS, the 204 East Durant project is located within the
L /TR zone district and meets the dimensional requirements of this
zone district; and
WHEREAS, the Planning and Zoning Commission considered the
382070 8-783 P -109 08/09/95 03:46P PG 17 OOF 28
377968 8 -771 P- 488 01/11/95 11:08A PG 2 OF 7
applicant's request at a public hearing on July 5th and August 2,
1994, at which time they recommended approval to City Council for
the replacement housing project and the text amendment. The
Commission also granted Special Review approval for parking for the
affordable dwelling units. The Commission also granted Special
Review approval for apron parking based on the proposed text
amendment, should City Council approve the proposed text amendment.
The Commission's conditions are detailed in Resolution 94 -; and
WHEREAS, the Commission voted 7 -0 to recommend approval to
City Council for the replacement housing project and subdivision,
and voted 8 -0 to recommend approval for the text amendment.
NOW, THEREFORE, BE IT ORDAINED HY THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO:
Section 1: Pursuant to Section 24- 7- 1004(C) of the Municipal Code,
City Council .does hereby grant the applicant Subdivision approval
subject to the following conditions:
I The replacement affordable housing units shall be fully deed
restricted as follows:
Unit 1 Category #2 (2 bdrm, 850 net livable sq.ft.)
Unit 2 Category #1 (1 bdrm, 600 net livable sq.ft.)
Unit 3 Category #2 (1 bdrm; 600 net livable sq.ft.)
Unit 4 Category #2 (studio, 400 net livable sq.ft.)
1 2. The applicant will need to obtain approval from the Housing
Office as to the quality of fixtures, finish, and amenities
of the affordable housing units, prior to the issuance of any
building permits for the project.
J 3. Prior to issuance of any building permits, the applicant shall
record the deed restrictions for the affordable housing units
and forward a copy to the Planning Office.
2
382070 B -783 P-.110 06/09/95 03:46P PG 1P. OF 28
377968 B -771 P- 489 01/11/95 11:08A PG 3 OF 7
4. As recommended by the Aspen Fire Protection District, the
applicant shall have a residential sprinkler and alarm system
installed in the proposed structure. These systems shall be
identified on the building plans.
5. As recommended by the City Engineer in his memo dated June 16,
1994 the applicant shall:
a. provide a drainage plan which shall be approved by the
City Engineer, prior to issuance of a building permit.
b. submit a parking plan, prior to the issuance of a
building permit, which illustrates the size and location
of all parking spaces and planters.
•
c. submit a site plan which shows a trash and recycle area,
utility meters, and other equipment, prior to the
issuance of a building permit.
d. consult the City Engineering Department (920 -5080) for
design considerations, City Parks Department (920 -5120)
for vegetation alterations including tree removal, and
shall obtain permits from the City Streets Department
(920 -5130) for any work or development within public
rights -of -way, prior to commencing any of this work.
J 6. The Zoning Enforcement Officer identified the following items
that shall be submitted prior to issuance of a building
permit:
a. an .open space plan indicating the areas counted per the
"Open Space" definition in Section 24 -3 -101.
b. height information in accordance with Section 24 -3 -101
of the Land Use Regulations.
7. In order to be in compliance with the recommendations of the
Water Department, the applicant shall:
a. connect to the 20 -inch water main in Durant Avenue and
this shall be verified during the building inspection
process.
b. pay its proportionate share of the costs associated with
the abandonment of the existing 6 -inch water line in
Durant Avenue.
c. contact the Customer Service Department (920 -5031) to
review the proposed plans to establish the amount of the
utility connection charges and to review detailed plans
to provide water service, including water metering of the
proposed units.
3
382070 P- -783 P_..1Ir 06/09/95 03 :46P Pi iq OF _'9
377968 B -771 P -490 01/11/95 11:OBA P6 4 OF 7
✓8. A sidewalk, curb and gutter shall be installed along E. Durant
and Aspen Street, prior to issuance of any Certificates of
Occupancy for the project. This sidewalk shall be a concrete
surface, at least five feet wide, and no obstacles within this
width. The final design of the sidewalk shall be approved by
the Parks Department and shall minimize impacts to existing
trees to the greatest extent possible.
19. The applicant shall submit a Final Plat and Subdivision
Agreement within 180 days of City Council review, for review
and approval by the City Attorney, City Engineer, and Planning
Office.
1 All landscaping shall be reviewed and approved by the Parks
Department, prior to the issuance of any building permits or
the start of any earthmoving activities.
✓11. All material representations made by the applicant in the
application and public meetings shall be adhered to and
considered conditions of approval, unless otherwise amended
by other conditions.
12 All garage aprons shall be snow melted. The Subdivision
Agreement shall indicate that snow melted driveways are a
common element of the free - market uses for the purposes of
utility payments and maintenance.
v The applicant shall redesign the entry into the affordable
housing units so that there is a gabled roof that does not
shed snow onto the entryway. This shall be completed prior
to issuance of any building permits.
14. The affordable housing units shall not be sold with the free
market units, but shall be conveyed to the Homeowner's
Association which will oversee the rental of these units to
qualified individuals.
v15. Existing tenants of the property shall have first priority at
renting or purchasing the affordable dwelling units. Such
rights not to be unreasonably withheld, as determined by the
Housing Authority Board.
Section 2: Pursuant to the concurrent text amendment revising
Section 24 -7 -404 (B) "Off- street parking requirements" of the
Municipal Code, should Council approve the text amendment in
Ordinance 50, the applicant shall comply with the following
condition:
4
392070 s -783 - -?l2 OD/09/95 03:- +GP r=0 c:0 OF (7'8
377968 B -771 P -491 01/11/95 11:08F PG 5 OF 7
1. Prior to the issuance of a building permit, the applicant
shall submit a landscaping plan that provides visual
relief of the parking spaces to be reviewed and approved
by the Parks Department and Planning Office.
Section 3: Pursuant to Section 24 -6 -207 of the Municipal Code,
City Council does hereby grant the applicant vested rights for the
204 East Durant Subdivision site specific development plan as
follows:
1. The rights granted by the site specific development plan
approved by this Ordinance shall remain vested for three (3)
years from the date of final adoption specified below.
However, any failure to abide by the terms and conditions
attendant to this approval shall result in forfeiture of said
vested property rights. Failure to timely and properly record
all plats and agreements as specified herein or in the
Municipal Code shall also result in the forfeiture of said
vested rights.
2. The approval granted hereby shall be subject to all rights of
referendum and judicial review.
3. Nothing in the approvals provided by this Ordinance shall
exempt the site specific development plan from subsequent
reviews and /or approvals required by this Ordinance or the
general rules, regulations or ordinances of the city provided
that such reviews or approvals are not inconsistent with the
approval granted and vested herein.
4. The establishment herein of a vested property right shall not
preclude the application of ordinances or regulations which
are general in nature and are applicable to all properties
subject to land use regulation by the City of Aspen, including
but not limited to, building, fire, plumbing, electrical and
mechanical codes. In this regard, as a condition of this site
development approval, the developer shall abide by any and all
such building, fire, plumbing, electrical and mechanical
codes, unless an exemption therefrom is granted in writing.
Section 4: The City Clerk 'all cause notice of this Ordinance to
be published in a newspaper of general circulation within the City
of Aspen, no later than fourteen (14) days following final adoption
5
382070 B-78 P_ i3 03/0-)/95 03:43P P6 X31 Or 28
377968 B -771 P-492 01/11/95 11:08A PG 6 OF 7
hereof. Such notice shall be given in the following form:
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 pursuant to Title 24, Article 68,
Colorado Revised Statutes, pertaining to the following
described property:
The property shall be described in the notice and appended to said
notice.
Section 5: A public hearing on the Ordinance shall be held on the
/7 day of &c2.v4.4:41994 at 5:00 P.M. in the City Council
Chambers, Aspen City Hall, Aspen, Colorado. Fifteen (15) days
prior to the hearing a public notice of the hearing 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 /c7.2 day of���
1994.
V, (j
John Mayor
.•' • , e ,
/oTEST:
.
�/&
r
Kathryn A. och, City Clerk
. .C Oft 3 1
FINALLY, adopted, passed and approved this /: day of
4 141%/1/1) . _1994.
6
382070 8 -733 P -114 06/09/95 03:46P PG P2 OF 28
377968 B -771 P- 493 01/11/95 11:08A PG 7 OF 7
John
l ite
enn t, Mayor
ATTEST:
{ C.
- . 1Athiyn Roc
, , City Clerk
382070 8-783 P -115 06/09/95 03:46P PG 23 OF 28
7
C ,
382070 B -783 P -116 06/09/95 03:46P PG 24 OF 28
ORDINANCE NO. 65
(SERIES OF 1994)
AN ORDINANCE OF THE CITY OF ASPEN GRANTING
A PLANNED UNIT DEVELOPMENT OVERLAY AND
A PLANNED UNIT DEVELOPMENT APPROVAL TO
REDUCE THE WESTERN SIDE YARD SETBACK TO ZERO FEET
IN ORDER TO SAVE A 65 FOOT HEALTHY SPRUCE TREE
AS PART OF THE 204 EAST DURANT PROJECT
WHICH IS LOCATED WITHIN BLOCK 77, LOTS K, L, M, N, AND 0,
CITY AND TOWNSITE OF ASPEN
WHEREAS, SGA Aspen Limited Liability Company ( "Applicant "),
as represented by Sunny Vann, submitted an application to the
Planning Office requesting construction of eight dwelling units
under the resident multi- family housing replacement program,
subdivision, vested rights, and a text amendment to allow parking
on garage aprons in multi - family projects; and
WHEREAS, the 204 East Durant project is located within the
L /TR zone district; and
WHEREAS, the project was considered at a public hearing before
City Council on October 11, 1994 at which time Council directed
the applicant to find an alternative design that would preserve the
large spruce tree on the northwestern portion of the parcel; and
WHEREAS, pursuant to Chapter 24 -7 -902 of the Aspen Municipal
Code, the City may require an Applicant to come in through the
Planned Unit Development (PUD) process; and
WHEREAS, the Applicant submitted a amended application which
preserves the spruce tree, however, this requires a reduction in
the required parking by one space and a side yard setback variance
on the western lot line; and
WHEREAS, the amended application was considered at a public
382070 8 -783 P -117 06/09/95 03:46P PG 25 OF 28
hearing on November 22, 1994 by the Planning and Zoning Commission
at which time the Commission granted Special Review to reduce the
parking for the affordable housing units from four on -site parking
to three spaces and amend the approved parking plan for the
proposal, and recommended approval of the PUD Overlay and PUD
variance to City Council by a 5 -2 vote and amended the conditions
of approval.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO, THAT:
Section 1: Pursuant to Section 24 -7 -903 of the Municipal Code,
City Council does hereby grant the applicant a Planned Unit
Development designation and the sideyard setback variation from
five feet to zero feet for the western boundary as represented in
/ the revised site plans subject to the following conditions:
✓ 1. The applicant shall work with the Engineering and Parks
Department during installation of the sidewalk and pruning of
the trees.
2, Trees which will be retained must be protected prior to any
0
demolition, grading, excavation or material storage by the
placement of barricade fences within five feet from the
driplines of the trees. Fencing type and location shall be
approved by the Parks Depatment, prior to any earthmoving work
on the property.
/3. All material representations made by the applicant in the
application and public meetings shall be adhered to and
considered conditions of approval, unless otherwise amended
by other conditions.
Section 2: Pursuant to Section 24 -6 -207 of the Municipal Code, the
City Council does hereby grant the applicant vested rights for the
204 East Durant PUD /subdivision as follows:
1. The rights granted by the site specific development plan
2
'62070 B - 783 r - 110. Oc/0q/ 5 03:46G PG 26 OF PG
approved by this Ordinance shall remain vested for three (3)
years from the date of final adoption specified below.
However, any failure to abide by the terms and conditions
attendant to this approval shall result in forfeiture of said
vested property rights. Failure to timely and properly record
all plats and agreements as specified herein and or in the
Municipal Code shall also result in the forfeiture of said
vested rights.
2. The approval granted hereby shall be subject to all rights of
referendum and judicial review.
3. Nothing in the approvals provided in this Ordinance shall
exempt the site specific development plan from subsequent
reviews and or approvals required by this Ordinance or the
general rules, regulations or ordinances or the City provided
that such reviews or approvals are not inconsistent with the
approvals granted and vested herein.
4. The establishment herein of a vested property right shall not
preclude the application of ordinances or regulations which
are general in nature and are applicable to all property
subject to land use regulation by the City of Aspen including,
but not limited to, building, fire, plumbing, electrical and
mechanical codes. In this regard, as a condition of this site
development approval, the developer shall abide by any and
all such building, fire, plumbing, electrical and mechanical
codes, unless an exemption therefrom is granted in writing.
Section 3:
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 conducted and concluded under such
prior ordinances.
Section 4:
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 5:
The City Clerk shall cause notice of this Ordinance to be published
in a newspaper of general circulations within the City of Aspen no
later than fourteen (14) days following final adoption hereof.
Such notice shall be given in the following form:
3
I.
332070 B -793 P -119 06/09/95 03:46P PG 27 OF 28
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 pursuant to Title 24, Article 68,
Colorado Revised Statutes, pertaining to the following -
described property:
The property shall be described in the notice and appended to said
notice shall be the ordinance granting such approval.
Section 6:
That the City Clerk is directed, upon the adoption of this
ordinance, to record a copy of this ordinance in the office of the
Pitkin County Clerk and Recorder.
Section 7: The City Clerk shall cause notice of this Ordinance to
be published in a newspaper of general circulation within the City
of Aspen, no later than fourteen (14) days following final adoption
hereof. Such notice shall be given in the following form:
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 pursuant to Title 24, Article 68,
Colorado Revised Statutes, pertaining to the following
described property:
The property shall be described in the notice and appended to said
notice.
Section 8: A "public hearing on the Ordinance shall be held on the
/2 day of AL....,.._ � >t 1994 at 5:00 P.M. in the City Council
Chambers, Aspen City Hall, Aspen, Colorado. Fifteen (15) days
prior to the hearing a public notice of the hearing 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 c)g day of 27i-ea-JA
L-I_
1994.
9,44.0 iYia----%r
John Bennett, Mayor
4
3x3'2070 B -79=3 G -120 06/09/95 03:46P PG 28 OF 28
ATTEST:
Kathryn S.. och, City Cler
FINALLY, adopted, passed and approved this X- day of
1994.
Joh' Bennett, Mayor
ATTEST:
1 ; a
Kathryn S 'och, City Clerk
ord.cc.pud.204edur.pUd •
5
377968 9-771 P -487 01/11/95 11:08A PG 1 OF 7 REC DOC
SILVIA DAVIS PITKIN COUNTY CLERK: & RECORDER 35,00
ORDINANCE NO. 49
(SERIES OF 1994)
AN ORDINANCE OF THE CITY OF ASPEN GRANTING GMQS EXEMPTION FOR
THE CONSTRUCTION OF FOUR AFFORDABLE HOUSING UNITS
AND FOUR FREE MARKET DWELLING UNITS UNDER THE
MULTI FAMILY HOUSING REPLACEMENT PROGRAM, SUBDIVISION
APPROVAL AND VESTED RIGHTS FOR A PERIOD OF THREE YEARS
FOR THE 204 EAST DURANT PROJECT
WHICH IS LOCATED WITHIN BLOCK 77, LOTS K, L, M, N AND O,
CITY AND TOWNSITE OF ASPEN
WHEREAS, pursuant to Chapter 18 -3.3 of the Aspen Municipal
Code, an applicant may reconstruct a multi - family housing project
if the project meets the criteria of this provision of the Aspen
Municipal Code; and
WHEREAS, pursuant to Section 24- 7- 1004(C) of the Aspen
Municipal Code, City Council grants final subdivision approval; and
WHEREAS, pursuant to Section 24 -6 -207 of the Aspen Municipal
Code, City Council may grant vesting of development rights for a
site specific development plan for a period of three years from the
date of final development plan approval; and
WHEREAS, SGA Aspen Limited Liability Company, c/o Doug Allen,
( "Applicant "), as represented by Sunny Vann, submitted an
application to the Planning Office requesting construction of eight
dwelling units under the resident multi - family housing replacement
program, subdivision, vested rights, and a text amendment to allow
parking on garage aprons in multi - family projects; and
WHEREAS, the 204 East Durant project is located within the
L /TR zone district and meets the dimensional requirements of this
zone district; and
WHEREAS, the Planning and Zoning Commission considered the
377968 8-771 P -488 01/11/95 11:08A PG 2 OF 7
applicant's request at a public hearing on July 5th and August 2,
1994, at which time they recommended approval to City Council for
the replacement housing project and the text amendment. The
Commission also granted Special Review approval for parking for the
affordable dwelling units. The Commission also granted Special
Review approval for apron parking based on the proposed text
amendment, should City Council approve the proposed text amendment.
The Commission's conditions are detailed in Resolution 94- ; and
WHEREAS, the Commission voted 7 -0 to recommend approval to
City Council for the replacement housing project and subdivision,
and voted 8 -0 to recommend approval for the text amendment.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO:
Section 1: Pursuant to Section 24- 7- 1004(C) of the Municipal Code,
City Council does hereby grant the applicant Subdivision approval
subject to the following conditions:
1. The replacement affordable housing units shall be fully deed
restricted as follows:
Unit 1 Category #2 (2 bdrm, 850 net livable sq.ft.)
Unit 2 Category #1 (1 bdrm, 600 net livable sq.ft.)
Unit 3 Category #2 (1 bdrm, 600 net livable sq.ft.)
Unit 4 Category #2 (studio, 400 net livable sq.ft.)
2. The applicant will need to obtain approval from the Housing
Office as to the quality of fixtures, finish, and amenities
of the affordable housing units, prior to the issuance of any
building permits for the project.
3. Prior to issuance of any building permits, the applicant shall
record the deed restrictions for the affordable housing units
and forward a copy to the Planning Office.
2
377968 X771 P- 489 01/11/95 11:08A PG 3 OF 7
4. As recommended by the Aspen Fire Protection District, the
applicant shall have a residential sprinkler and alarm system
installed in the proposed structure. These systems shall be
identified on the building plans.
5. As recommended by the City Engineer in his memo dated June 16,
1994 the applicant shall:
a. provide a drainage plan which shall be approved by the
City Engineer, prior to issuance of a building permit.
b. submit a parking plan, prior to the issuance of a
building permit, which illustrates the size and location
of all parking spaces and planters.
c. submit a site plan which shows a trash and recycle area,
utility meters, and other equipment, prior to the
issuance of a building permit.
d. consult the City Engineering Department (920 -5080) for
design considerations, City Parks Department (920 -5120)
for vegetation alterations including tree removal, and
shall obtain permits from the City Streets Department
(920 -5130) for any work or development within public
rights -of -way, prior to commencing any of this wdrk.
6. The Zoning Enforcement Officer identified the following items
that shall be submitted prior to issuance of a building
permit:
a. an open space plan indicating the areas counted per the
"Open Space" definition in Section 24 -3 -101.
b. height information in accordance with Section 24 -3 -101
of the Land Use Regulations.
7. In order to be in compliance with the recommendations of the
Water Department, the applicant shall:
a. connect to the 20 -inch water main in Durant Avenue and
this shall be verified during the building inspection
process.
b. pay its proportionate share of the costs associated with
the abandonment of the existing 6 -inch water line in
Durant Avenue.
c. contact the Customer Service Department (920 -5031) to
review the proposed plans to establish the amount of the
utility connection charges and to review detailed plans
to provide water service, including water metering of the
proposed units.
3
377968 8-771 P -490 01/11/95 11 :0en PG 4 OF 7
8. A sidewalk, curb and gutter shall be installed along E. Durant
and Aspen Street, prior to issuance of any Certificates of
Occupancy for the project. This sidewalk shall be a concrete
surface, at least five feet wide, and no obstacles within this
width. The final design of the sidewalk shall be approved by
the Parks Department and shall minimize impacts to existing
trees to the greatest extent possible.
9. The applicant shall submit a Final Plat and Subdivision
Agreement within 180 days of City Council review, for review
and approval by the City Attorney, City Engineer, and Planning
Office.
10. All landscaping shall be reviewed and approved by the Parks
Department, prior to the issuance of any building permits or
the start of any earthmoving activities.
11. All material representations made by the applicant in the
application and public meetings shall be adhered to and
considered conditions of approval, unless otherwise amended
by other conditions.
12. All garage aprons shall be snow melted. The Subdivision
Agreement shall indicate that snow melted driveways' are a
common element of the free - market uses for the purposes of
utility payments and maintenance.
13. The applicant shall redesign the entry into the affordable
housing units so that there is a gabled roof that does not
shed snow onto the entryway. This shall be completed prior
to issuance of any building permits.
14. The affordable housing units shall not be sold with the free
market units, but shall be conveyed to the Homeowner's
Association which will oversee the rental of these units to
qualified individuals.
15. Existing tenants of the property shall have first priority at
renting or purchasing the affordable dwelling units. Such
rights not to be unreasonably withheld, as determined by the
Housing Authority Board.
Section 2: Pursuant to the concurrent text amendment revising
Section 24 -7 -404 (B) "Off- street parking requirements" of the
Municipal Code, should Council approve the text amendment in
Ordinance 50, the applicant shall comply with the following
condition:
4
377968 B-771 P -491 01/11/95 11:08A PG 5 OF 7
1. Prior to the issuance of a building permit, the applicant
shall submit a landscaping plan that provides visual
relief of the parking spaces to be reviewed and approved
by the Parks Department and Planning Office.
Section 3: Pursuant to Section 24 -6 -207 of the Municipal Code,
City Council does hereby grant the applicant vested rights for the
204 East Durant Subdivision site specific development plan as
follows:
1. The rights granted by the site specific development plan
approved by this Ordinance shall remain vested for three (3)
years from the date of final adoption specified below.
However, any failure to abide by the terms and conditions
attendant to this approval shall result in forfeiture of said
vested property rights. Failure to timely and properly record
all plats and agreements as specified herein or in the
Municipal Code shall also result in the forfeiture of said
vested rights.
2. The approval granted hereby shall be subject to all rights of
referendum and judicial review.
3. Nothing in the approvals provided by this Ordinance shall
exempt the site specific development plan from subsequent
reviews and /or approvals required by this Ordinance or the
general rules, regulations or ordinances of the City provided
that such reviews or approvals are not inconsistent with the
approval granted and vested herein.
4. The establishment herein of a vested property right shall not
preclude the application of ordinances or regulations which
are general in nature and are applicable to all properties
subject to land use regulation by the City of Aspen, including
but not limited to, building, fire, plumbing, electrical and
mechanical codes. In this regard, as a condition of this site
development approval, the developer shall abide by any and all
such building, fire, plumbing, electrical and mechanical
codes, unless an exemption therefrom is granted in writing.
Section 4: The City Clerk shall cause notice of this Ordinance to
be published in a newspaper of general circulation within the City
of Aspen, no later than fourteen (14) days following final adoption
5
377968 B -771 P -492 01/11/95 11:O8A PG 6 OF 7
hereof. Such notice shall be given in the following form:
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 pursuant to Title 24, Article 68,
Colorado Revised Statutes, pertaining to the following
described property:
The property shall be described in the notice and appended to said
notice.
Section 5: A public hearing on the Ordinance shall be held on the
// day of 6264-140L).994 6264-140L).994 'ICk1994 at 5:00 P.M. in the City Council
Chambers, Aspen City Hall, Aspen, Colorado. Fifteen (15) days
prior to the hearing a public notice of the hearing 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 A:2 day of
1994. 22
�I
John Bennett, Mayor
•c r,
!4 *TEST:
•
Kathryn S A ch, City Clerk
n0
reL'd ,,`
- : , .. nnm Pl
.FINALLY, adopted, passed and approved this /q day of
//
'' 1994.
6
377968 B -771 P- 493 01/11/95 11:08A PG 7 OF 7
e3,--
John ennett, Mayor
ATTEST:
` /�
rta
,. yRoc., ! %ts
�' at. • 7` City Clerk
r �.
1,, T' �
•
COPY
CIOA CONDOMINIUM DECLARATION
FOR TOWNE PLACE OF ASPEN CONDOMINIUMS
Name of the Common Town Place of Aspen
Interest Community: Condominiums
Name of the Association: Towne Place of Aspen
Condominium Association, Inc.
Persons executing this Declaration: Towne Place, LLC, a Colorado
limited liability company
mlh \townepic \dots \ condo .de3
TOWNE PLACE OF ASPEN CONDOMINIUMS
TABLE OF CONTENTS
ARTICLE 1
General Purposes. Submission, Defined Terms 1
Section 1.1 General Purposes 1
Section 1.2 Submission of Real Estate 1
Section 1.3 Defined Terms 1
ARTICLE 11
Names. Recording Data. Certain Descriptions. and Development Rights . . 2
Section 2.1 Name of Common Interest Community 2
Section 2.2 Type of Common Interest Community 2
Section 2.3 Name of Association 2
Section 2.4 County in which Common Interest Community is Situated . 2
Section 2.5 Development Rights Reserved 2
Section 2.6 Recording Data 2
Section 2.7 Special Declarant Rights 2
ARTICLE 111
Units /Common Elements 2
Section 3.1 Number of Units 2
Section 3.2 Identification of Units 3
Section 3.3 Description of Units 3
Section 3.4 Unit Boundaries 3
Section 3.5 Common Elements and Limited Common Elements 4
Section 3.6 No Partition of Units from Condominium 4
Section 3.7 Separate Assessment 4
Section 3.8 No Mechanic's Liens 4
Section 3.9 Subdivision of Units and Relocation of Boundaries
Between Units 5
Section 3.10 Parking Spaces 5
Section 3.1 1 Development Rights Reserved 5
ARTICLE IV
The Association, Declarant Control, Indemnification. Notice 6
Section 4.1 Purposes 6
Section 4.2 Specific Powers 6
Section 4.3 Membership Qualifications 6
Section 4.4 Executive Board 6
mlh \townepk \docs\ condo .de3
e
Section 4.5 Declarant Control 7
Section 4.6 Indemnification 7
Section 4.7 Notice to Owners 8
ARTICLE V
Easements and Licenses 8
Section 5.1 Unit Owners' Easements 8
Section 5.2 Easement for Encroachments 9
ARTICLE VI
Allocated Interests 9
Section 6.1 Allocated Interests 9
Section 6.2 Determination of Allocated Interests 9
ARTICLE VII
Covenant for Common Expense Assessments 9
Section 7.1 Obligation to Pay Common Expense Assessments 9
Section 7.2 Apportionment of Common Expenses 10
Section 7.3 Purpose of Assessments 11
Section 7.4 Adoption of Budget • 11
Section 7.5 Annual Assessment /Commencement of Common Expense 11
Section 7.6 Effect of Non - Payment of Assessments 12
Section 7.7 Special Assessments 12
Section 7.8 The Association's Lien 12
Section 7.9 Statement of Unpaid Assessments 13
Section 7.10 Working Fund 14
ARTICLE VIII
Use and Other Restrictions 14
Section 8.1 Use of Residential Units 14
Section 8.2 Use of Parking Spaces 14
Section 8.3 Maintenance of Units 14
Section 8.4 Restrictions on Animals and Pets 15
Section 8.5 Zoning, Nuisances, Hazards 15
Section 8.6 Compliance with Insurance Requirements 15
Section 8.7 Restriction on Signs and Advertising Devices 15
Section 8.8 Restrictions on Floor Loads 15
Section 8.9 Leasing of Units 16
Section 8.10 No Rights of First Refusal 16
mlhQownepic \does \ condo .de7 ii
Section 8.11 No Restrictions on Mortgaging of a Unit 16
Section 8.12 No Time Shares 16
Section 8.13 Rules and Regulations 16
ARTICLE IX
Design Review 17
Section 9.1 Required Approvals 17
Section 9.2 Periods of Restricted Construction 17
Section 9.3 Variances 17
Section 9.4 Waivers 17
Section 9.5 Liability 18
Section 9.6 Records 18
Section 9.7 Enforcement 18
ARTICLE X
Insurance 18
Section 10.1 Insurance Carried 18
Section 10.2 Property Insurance on the Units and Common Elements . 20
Section 10.3 Liability Insurance 20
Section 10.4 Fidelity Insurance • 20
Section 10.5 Worker's Compensation and Employer's Liability
Insurance 20
Section 10.6 Officers' and Directors' Personal Liability Insurance 20
Section 10.7 Other Insurance 21
Section 10.8 Insurance Premium 21
Section 10.9 Managing Agent Insurance 21
Section 10.10 Waiver of Claims Against Association 21
Section 10.11 Annual Insurance Review 21
Section 10.12 Adjustments by the Association 21
Section 10.13 Duty to Repair 22
ARTICLE XI
Special Rights of Holders of First Lien Security Interests 22
Section 1 1.1 General Provisions 22
ARTICLE XII
Enforcement 22
Section 12.1 Enforcement 22
mill \mwneVk \docs \condo.de3 Ili
ARTICLE XIII
Amendments 23
Section 13.1 Amendment to Declaration or Mao, 23
ARTICLE XIV
Restoration and Termination 23
Section 14.1 Restoration 23
Section 14.2 Termination 23
ARTICLE XV
Condemnation 24
Section 15.1 Appointment of Association as Attornev -in -Fact 24
Section 15.2 Entire Taking 24
Section 15.3 Partial Taking 24
ARTICLE XVI
Miscellaneous 25
Section 16.1 Severability 25
Section 16.2 Term of Declaration 25
Section 16.3 Singular Includes the Plural 25
Section 16.4 Captions 25
Section 16.5 Colorado Law 25
Section 16.6 Disclaimer 25
Section 16.7 Limited Liability 26
Section 16.8 Conflicts with Articles, Bylaws or Rules of Association 26
Section 16.9 Covenants Running with the Land 26
EXHIBIT A
Legal description of Real Estate and Recording Data
EXHIBIT B
Table of Interests
mjh \townepk \ does \ condo .de3 IV
CONDOMINIUM DECLARATION
FOR THE
TOWNE PLACE OF ASPEN CONDOMINIUMS
This CONDOMINIUM DECLARATION is made this _ day of July, 1997
by TOWNE PLACE, LLC, a Colorado limited liability company ( "Declarant "), whose
address is c/o Sam Korn, P. O. Box 9132, Aspen, Colorado 81612 -9132.
ARTICLE 1
General Purposes. Submission. Defined Terms
Section 1.1 General Purposes. Declarant is the owner of certain improved, fully
developed, real estate known as the "TOWNE PLACE OF ASPEN" located in the City
of Aspen, County of Pitkin, Colorado more particularly in Exhibit "A" attached hereto
which exhibit is by this reference made a part here of. Declarant desires to create a
Common Interest Community under the name "TOWNE PLACE OF ASPEN
CONDOMINIUMS" pursuant to which the real estate described in said Exhibit "A"
will be designated for separate ownership and use of either a commercial or residential
nature.
Section 1.2 Submission of Real Estate. Declarant hereby submits the real estate
described in said Exhibit "A," together with all easements, rights -of -way and
appurtenances thereto and the buildings and improvements erected thereon
(collectively, the "Real Estate ") to the provisions of the Colorado Common Interest
Ownership Act, Section § §38- 33.3 -101 et seq. of the Colorado Revised Statutes
(the "Act ") and to this Declaration. In the event the Act is repealed, the Act on the
effective date of this Declaration shall remain applicable. Declarant hereby declares
that all of the Real Estate shall be held, leased, mortgaged, sold and conveyed subject
to the following terms, easements, reservations, restrictions, covenants, and conditions.
Declarant further declares that this Declaration is made for the purpose of protecting
the value and desirability of the Real Estate; that this Declaration shall run with the Real
Estate and shall be binding on all parties having any right, title or interest in the Real
Estate or any part thereof, their heirs, devisees, legal representatives, successors and
assigns and shall inure to the benefit of each and every Owner.
Section 1.3 Defined Terms. Each capitalized term not otherwise defined in this
Declaration or on the Condominium Map of the Towne Place of Aspen Condominiums
(the "Map" or the "Condominium Map ") shall have the meanings specified or used
in the Act.
mlh \townepk \docs\condo.de3
ARTICLE 11
Names. Recording Data. Certain Descriptions. and Development Rights
Section 2.1 Name of Common Interest Community. The name of the
Common Interest Community is the "Towne Place of Aspen Condominiums."
Section 2.2 Type of Common Interest Community. The type of Common
Interest Community is a Condominium.
Section 2.3 Name of Association. The name of the Association is the "Towne
Place of Aspen Condominium Association, Inc.," a Colorado non - profit corporation
(the "Association ").
Section 2.4 County in which Common Interest Community is Situated. The
Common Interest Community consists of the Real Estate which is located entirely
within the County of Pitkin, State of Colorado.
Section 2.5 Development Rights Reserved. The Declarant reserves the
Development Rights enumerated in Section 3.11 below. The Real Estate is subject
to this Development Rights.
Section 2.6 Recording Data. The recording data for all recorded easements and
licenses appurtenant to or included in the Common Interest Community is set forth in
Exhibit "A." In addition, the Common Interest Community may be subject to the
easements or licenses granted or reserved pursuant to this Declaration.
Section 2.7 Special Declarant Rights. The Declarant hereby reserves the Special
Declarant Rights enumerated in Section § §38- 33.3- 103(29) of the Act.
ARTICLE 111
Units /Common Elements
Section 3.1 Number of Units. The number of Units in the Common Interest
Community is four (4) consisting of Units A, B, C and D and four (4) Affordable
Housing Units (defined below). The preceding is subject to the provisions of Section
3.11 below. The Condominium Map reflects the location of four (4) Affordable
Housing Units which subject to the Development Rights reserved in Section 3.11
below constitute Common Elements of the Common Interest Community (the
"Affordable Housing Units").
mlh\towneplc \doa \condo.de3 2
Section 3.2 Identification of Units. The identification number of each Unit is
shown on the Condominium Map and Exhibit "B" to this Declaration attached hereto
which exhibit is by this reference made a part hereof.
Section 3.3 Description of Units. Every contract for sale, deed, lease, Security
Interest and every other legal document or instrument shall legally describe a Unit as
follows:
Unit , Towne Place of Aspen Condominiums, a
Common Interest Community according to the
Condominium Map thereof recorded in Plat Book _ at
Page _ and the Condominium Declaration for Towne
Place of Aspen Condominiums recorded at Reception No.
, all of the real estate records of Pitkin
County, Colorado.
Section 3.4 Unit Boundaries. The boundaries of each Unit are shown on the
Condominium Map. Unless otherwise shown on the Condominium Map; as required
by the Act or as set forth below, Unit boundaries consist of unfinished walls, floors and
ceilings.
(a) All lath, furring, wallboard, plasterboard, plaster, paneling, tiles,
wallpaper, paint, and finished flooring and any other materials constituting any part of
the finished surfaces thereof are a part of the Unit;
(b) Any shutters, awnings, window boxes, doorsteps, stoops, porches,
balconies, and patios and all exterior doors and windows or other fixtures designed to
serve a single Unit, but located outside the Unit's boundaries, are Limited Common
Elements allocated exclusively to that Unit; and
(c) All built -in air handling, ventilation and heating systems including
chutes, flutes, ducts, wire, conduit and all other mechanical systems of the Towne
Place of Aspen Condominiums wherever situated that serve only one Unit are Limited
Common Elements allocated solely to that Unit and any portions thereof that serve
more than one Unit or the Common Elements are Common Elements.
(d) Any spaces or improvements outside the boundaries of any Unit
that do not serve any particular Unit shall be Common Elements.
mph \[owneplc \das \ condo .de3 3
(e) Any structural elements, bearing walls or columns wherever situated
to the unfinished surfaces thereof shall be Common Elements.
Section 3.5 Common Elements and Limited Common Elements. Portions of
the Real Estate shown on the Condominium Map are either Common Elements or
Limited Common Elements. The Association shall be responsible for the maintenance,
repair and replacement of all Common Elements. Unless provided otherwise in this
Declaration, the Association shall also be responsible for the maintenance, repair and
replacement of all Limited Common Elements.
Section 3.6 No Partition of Units from Condominium. No Owner may assert
any right of partition with respect to such Owner's Unit desiring to separate it from
the Condominium. By becoming an Owner, each Owner waives any and all rights of
partition such Owner may hold with respect to such Owner's Unit desiring to separate
it from the Condominium. This Section 3.6 shall not, however, limit or restrict the
right of the Owners of a Unit to bring a partition action pursuant to Section 38 -28-
101 et seq. of the Colorado Revised Statutes requesting the sale of the Unit and the
division of the proceeds among each Owners; provided that no physical division of the
Unit shall be permitted as a part of such action and no such action shall affect any
other Unit.
Section 3.7 Separate Assessment. Declarant shall give written notice to the
Assessor of Pitkin County, Colorado requesting that the Units be separately assessed
and taxed and that the total value of the Common Elements be assessed and taxed
proportionately in accordance with the Allocated Interest of such Unit in the
Common Elements. After this Declaration has been recorded in the real estate records
of Pitkin County, Colorado, Declarant shall deliver a copy of this Declaration as
recorded to the Assessor of Pitkin County, Colorado.
Section 3.8 No Mechanic's Liens.
(a) If any Owner shall cause or permit any material to be furnished to
such Owner's Unit or any labor or services to be performed therein , no Owner of any
other Unit shall be liable for the payment of any expense incurred or for the value of
any work done or material furnished. All such work shall be at the expense of the
Owner causing it to be done, and such Owner shall be solely responsible to
contractors, laborers, materialmen and other persons furnishing labor, services or
materials to such Owner's Unit. Nothing herein contained shall authorize any Owner
or any person dealing through, with or under any Owner to charge the Common
Elements or any Unit other than that of such Owner with any mechanic's or
mlh\mwneplc \does \ condo .de7 4
materialmen's lien or other lien or encumbrance whatsoever. Notice is hereby given
that the right and power to charge any lien or encumbrance of any kind against the
Common Elements or against any Owner or any Owner's Unit for work done or
materials furnished to any other Owner's Unit is hereby expressly denied.
(b) If, because of any act or omission of any Owner, any mechanic's
or materialman's lien or other lien or order for the payment of money shall be filed
against any of the Common Elements or against any other Owner's Unit or against any
other Owner or the Association (whether or not such lien or order is valid or
enforceable as such), the Owner whose or which act or omission forms the basis for
such lien or order shall, at such Owner's own cost and expense, cause such lien or
order to be canceled or bonded over in an amount and by a surety company
reasonably acceptable to the party or parties affected by such lien or order within
twenty (20) days after the filing thereof, and further such Owner shall indemnify and
save harmless all such parties affected from and against any and all costs, expenses,
claims, losses or damages, including reasonable attorney's fees resulting therefrom.
Section 3.9 Subdivision of Units and Relocation of Boundaries Between Units.
There is hereby reserved to Owners of Units the right in accordance with the Act to
subdivide a Unit into two or more Units or to relocate the boundaries between
adjoining Units.
Section 3.10 Parking Spaces. The Parking Spaces shown on the Map shall be
limited common elements appurtenant to the Units. One of the parking spaces located
on the apron of Unit D has been allocated for use by the Affordable Housing Units.
The Association /Declarant shall be entitled from time to time to adopt rules and
regulations governing the use of the parking spaces.
Section 3.1 1 Development Rights Reserved. The Declarant, or the Unit
Owners or the Association as the successor to the Declarant, reserves the right, for a
period of ninety-nine (99) years to condominiumize the Affordable Housing Units and
to sell them to qualified "employees" approved by the Aspen /Pitkin County Housing
Authority ( "Housing Board ") and its guidelines. The income to be derived from such
sale shall constitute an asset of the Association, to be distributed by the Unit Owners
or used by the Association as the directors or executive board thereof deems
appropriate. In the event the proceeding Development Right is exercised, the
Allocated Interests (defined in Article VI below) shall be equitably reallocated which
allocation shall require the approval of the Housing Board with the proviso that in no
event shall any expenses which the Declarant is prohibited from passing on to the
occupants of the Affordable Housing Units become part of any Common Expenses
mjh \townepk \docskondo.de3
payable by Owners of the then condominiumized Affordable Housing Units and with
the further restriction that in no event shall the cumulative voting rights allocated to
the affordable housing units exceed 20% of the total vote.
ARTICLE IV
The Association. Declarant Control. Indemnification. Notice
Section 4.1 Purposes. The Association, through its Executive Board, shall
perform the functions and manage and administer the Common Interest Community
as provided in this Declaration so as to further the interests of the members of the
Association. The Association shall be governed by its Articles of Incorporation and
Bylaws, as amended from time to time. The Executive Board may, by written
resolution, delegate authority to a manger or managing agent for the Association,
provided no such delegation shall relieve the Executive Board of final responsibility.
Section 4.2 Specific Powers. The Association shall have all the powers,
authority and duties as necessary and proper to manage the business and affairs of the
Common Interest Community. The Association shall have all of the powers, authority
and duties permitted or set forth in the Act. The Association shall have the power to
assign its right to future income, including the right to receive Common Expense
assessments, but only upon the affirmative vote of the Unit Owners of Units to which
at least sixty-six and two- thirds percent (66.% %) of the votes in the Association are
allocated at a meeting called for such purpose.
Section 4.3 Membership Qualifications. Each Individual, corporation,
partnership, limited liability company, joint venture, trust or other legal entity capable
of holding title to real property in Colorado shall automatically become a member of
the Association upon becoming an Owner of a Unit. Membership shall be continuous
throughout the period that such ownership continues and shall be appurtenant to and
inseparable from ownership of a Unit. Ownership of a Unit shall be the sole
qualification for such membership. Membership shall terminate automatically without
any Association action whenever any Owner ceases to own any Unit. No Owner may
pledge or otherwise hypothecate its membership in the Association and no such pledge
or hypothecation shall be effective or binding on the Association. Where more than
one person or legal entity holds an interest in any Unit, all such persons or legal entities
shall be members and the voting of such membership shall be in accordance with the
Act.
Section 4.4 Executive Board. The affairs of the Association shall be governed
by an Executive Board consisting of three (3) members elected by the Unit Owners.
m$h \cowneplc \doa \ condo .de3 6
Cumulative voting shall be required for the election of members of the Executive
Board.
Section 4.5 Declarant Control. The Declarant shall have the reserved power,
pursuant to the Act, to appoint and remove officers and members of the Executive
Board. This power of Declarant (the "period of Declarant Control ") terminates no
later than the earlier of: (i) sixty (60) days after conveyance of seventy-five percent
(75 %) of the Units to Unit Owners other than the Declarant or (ii) two (2) years
after the last conveyance of a Unit by the Declarant in the ordinary course of business
to a Unit Owner other than Declarant. During the period of Declarant Control, the
Declarant's Control shall be subject to the following limitations:
(a) Not later than sixty (60) days after conveyance of twenty-five
percent (25 %) of the Units that may be created to Unit Owners other than the
Declarant, at least one member and not less than twenty-five percent (25 %) of the
members of the Executive Board must be elected by Unit Owners other than the
Declarant.
(b) Not later than sixty (60) days after conveyance of fifty percent
(50 %) of the Units that may be created to Unit Owners other than the Declarant, not
less than thirty -three and one -third percent (331/4%) of the members of the Executive
Board must be elected by Unit Owners other than the Declarant.
(c) The Declarant may voluntarily surrender the right to appoint and
remove officers and members of the Executive Board before termination of the period
of Declarant Control, but, in that event, the Declarant may require, for the duration
of the period of Declarant Control, that specified actions of the Association or
Executive Board, as described in a recorded instrument executed by the Declarant, be
approved by the Declarant before they become effective.
Section 4.6 Indemnification. To the full extent permitted by law, each officer
and director of the Association shall be and is hereby indemnified by the Unit Owners
and the Association against all expenses and liabilities including attorney's fees,
reasonably incurred by or imposed upon them in any proceeding to which they may
be a party, or in which they may become involved, by reason of being or having been
an officer or director of the Association, or any settlements thereof, whether or not
they are an officer or director of the Association at the time such expenses are
incurred; except in such cases wherein such officer or director is adjudged guilty of
willful misfeasance or malfeasance in the performance of his or her duties; provided
that in the event of a settlement the indemnification shall apply only when the
mjh \rowneolc \doa \ condo .de3 7
Executive Board approves such settlement and reimbursement as being in the best
interests of the Association.
Section 4.7 Notice to Owners. Notice to an Owner of matters affecting the
Towne Place of Aspen Condominiums by the Association or by another Owner shall
be sufficiently given if such notice is in writing and is delivered personally, by courier
or private service delivery or on the third business day after deposit in the mails for
registered or certified mail, return receipt requested, at the address of record for real
property tax assessment notices with respect to that Owner's Unit.
ARTICLE V
Easements and Licenses
Section 5.1 Unit Owners' Easements. Every Unit Owner shall have a right of
enjoyment and easement for access to their Unit through or over the Common
Elements and such easement shall be appurtenant to and shall pass with the title to
every Unit, subject to the following provisions:
(a) The right of the Association to promulgate and publish rules and
regulations which each Unit Owner and their guests shall strictly comply with.
(b) The right of the Association to suspend the voting rights and rights
to use the Common Elements by any Unit Owner for any period during which any
assessment against their Unit remains unpaid; and for a period not to exceed sixty (60)
days for any infraction of its rules and regulations.
(c) The right of the Association to grant easements, leases, licenses and
concessions through or over the Common Elements.
(d) The right of the Association to convey or subject a Common
Element to a Security Interest in accordance with and to the extent permitted by the
Act.
(e) The right of the Association to close or limit the use of the
Common Elements while maintaining, repairing or replacing such Common Elements.
(f) Any Unit Owner may delegate their right of enjoyment to the
Common Elements and facilities to the members of their family, their tenants or guests
who reside or rent at their Unit.
mph \mwnepk \dots \ condo .de7 8
Section 5.2 Easement for Encroachments. To the extent that any Unit or
Common Element encroaches on any other Unit or Common Element, a valid
easement for the encroachment exists.
ARTICLE VI
Allocated Interests
Section 6.1 Allocated Interests. The Common Expense liability, percentage
ownership interest of each Unit Owner in the Common Elements and votes in the
Association allocated to each Unit are set forth in Exhibit B, "Table of Interests."
Section 6.2 Determination of Allocated Interests. Subject to the provisions of
Section 3.1 1 above, the interests allocated to each Unit have been calculated as
follows:
(a) By allocating twenty-five percent (25 %) of the interests to each
Unit.
(b) The percentage of ownership interest of each Unit Owner in the
Common Elements is based upon twenty-five percent (25 %) being allocated to'each
Unit.
(c) The number of votes in the Association by providing that each Unit
has twenty-five percent (25 %) of the total votes.
ARTICLE VII
Covenant for Common Expense Assessments
Section 7.1 Obligation to Pay Common Expense Assessments. Declarant, for
each Unit, shall be deemed to covenant and agree, and each Unit Owner, by
acceptance of a deed therefore, whether or not it shall be so expressed in any such
deed or other conveyance, shall be deemed to covenant and agree to pay to the
Association Common Expense assessments imposed by the Association against said
Unit. Such assessments, including fees, charges, late charges, attorney's fees, fines and
interest charged by the Association shall also be the personal obligation of the Unit
Owner of such Unit at the time when the assessment or other charges become due.
Where there are multiple Owners of a Unit, the obligation to pay assessments shall be
joint and several. The personal obligation to pay any past due sums due the
Association shall not pass to a successor in title unless expressly assumed by them. No
Unit Owner may become exempt from liability for payment of the Common Expense
mih \rownepk \docs\wndo. de3
assessments by waiver of the use or enjoyment of the Common Elements or by
abandonment of the Unit against which the Common Expense assessments are made.
All assessments shall be payable in the amounts specified in the levy thereof, and no
offsets or reduction thereof shall be permitted by any reason including, without
limitation, any claim that the Association or the Executive Board is not properly
exercising its duties and powers under this Declaration.
Section 7.2 Apportionment of Common Expenses. Except as provided in this
Section 7.2 or elsewhere in this Declaration, Common Expense assessments shall be
assessed against all Units in accordance with the formula for liability for the Common
Expenses as set forth in Exhibit "B" of this Declaration.
(a) Any Common Expense associated with the maintenance, repair, or
replacement of a Limited Common Element shall be assessed against the Units to which
that Limited Common Element is assigned, equally, or in any other proportion that the
Executive Board deems equitable;
(b) Any Common Expense or portion thereof benefitting fewer than
all of the Units shall be assessed exclusively against the Units benefitted;
(c) Any Common Expense for services provided by the Association to
an individual Unit at the request of the Unit Owner may be assessed against that Unit
only;
(d) The cost of insurance shall be assigned in proportion to risk. Any
insurance premium increase attributable to a particular Unit by virtue of activities in
or construction of the Unit shall be assessed against that Unit;
(e) An assessment to pay a judgment against the Association may be
made only against the Units in the Common interest Community at the time the
judgement was entered, in proportion to their Common Expense liabilities;
(f) If a Common Expense is caused by the misconduct of a Unit
Owner, the Association may assess that expense exclusively against that Unit Owner
and their Unit;
(g) Fees, charges, taxes, impositions, late charges, fines, collection costs
and interest charged against a Unit Owner pursuant to Section 7.5 below or elsewhere
in the Declaration shall be collectable as Common Expense assessments;
mlhkowneplc \docskondo.de7 1 0
Section 7.3 Purpose of Assessments. The assessments levied by the Association
through its Executive Board shall be used exclusively for the purposes of promoting the
health, safety, and welfare of the members of the Association. Such purposes shall
include, but shall not be limited to the following: (a) the improvement, maintenance,
repair, upkeep and reconstruction of the Common Elements; or (b) for the painting,
landscape care and snow removal and any other maintenance obligations which may
be deemed desirable for the common benefit of the Unit Owners; or (c) for the
maintenance of property values; or (d) for payment of expenses which may be
incurred by virtue of agreement with or requirement of any governmental authority;
or (e) to hire a manager to perform all of the tasks of the Association which are legally
delegable to a manager. The assessments may also be used to provide insurance of
various types and in such amounts deemed appropriate by the Executive Board. Also,
a portion of the assessments may be used to provide a reserve fund for the
replacement, repair, and maintenance of Common Elements which must be replaced
or refurbished on a periodic basis. All income received from the Affordable Housing
Units shall be used by the Association to offset the Unit Owners' obligation for
Common Expenses.
Section 7.4 Adoption of Budget. Within thirty (30) days after adoption of any
proposed budget for the Common Interest Community, the Executive Board shall mail,
by ordinary first -class mail or otherwise deliver, a summary of the budget to all the
Unit Owners and shall set a date for a meeting of the Unit Owners to consider
ratification of the budget not less than fourteen (14) nor more than sixty (60) days
after mailing or other delivery of the summary. Unless at that meeting, the affirmative
vote of the Unit Owners to which sixty-six and two- thirds percent (66.1/2%) or more
of the votes in the Association are allocated reject the budget, the budget is ratified,
whether or not a quorum is present. In the event that the proposed budget is rejected,
the periodic budget as ratified by the Unit Owners will be continued until such time
as the Unit Owners ratify a subsequent budget proposed by the Executive Board.
Section 7.5 Annual Assessment/Commencement of Common Expense.
Common Expense assessments may be made on an annual basis against all Units and
shall be based upon the Association's budget of the cash requirements needed by it to
provide for the administration and performance of its duties during such assessment
year. Common Expense assessments shall be due and payable in monthly, quarterly,
or annual installments, or in any other manner, as determined by the Executive Board.
Common Expense assessments may begin on the first day of the month in which
conveyance of the first Unit to a Unit Owner other than the Declarant occurs. The
omission or failure of the Executive Board to levy assessments for any period shall not
mjh kowneolc \doa \ condo . del 11
be deemed a waiver, modification or a release of the Unit Owners from their
obligation to pay assessments for such period.
Section 7.6 Effect of Non - Payment of Assessments. Any assessments, changes
or fees provided for in this Declaration, or any monthly or other installments thereof,
which is not fully paid within ten (10) days after the due date thereof, as established
by the Executive Board, shall bear interest at the rate of eighteen percent (1 8%) per
annum from the due date, and the Association may assess a reasonable late charge
thereon as determined by the Executive Board. Failure to make payment within sixty
(60) days of the due date thereof shall cause the total amount of such Unit Owner's
Common Expense Assessment for the remainder of that fiscal year to become
immediately due and payable at the option of the Executive Board. Further, the
Association may bring an action at law or in equity, or both, against any Unit Owner
personally obligated to pay such overdue assessments, charges or fees, or monthly or
other installments thereof, and may also proceed to foreclose its lien against such Unit
Owner's Unit. An action at law or in equity by the Association against a Unit Owner
to recover a money judgement for unpaid assessments, charges or fees, or monthly or
other installments thereof, may be commenced and pursued to the Association without
foreclosing, or in any way waiving, the Association's lien therefor. Foreclosure or
attempted foreclosure by the Association of its lien shall not be deemed to estop or
otherwise preclude the Association from thereafter again foreclosing or attempting to
foreclose its lien for any subsequent assessments, charges or fees, or monthly or other
installments thereof, which are not fully paid when due.
Section 7.7 Special Assessments. In addition to the annual or regular
assessments, the Association may establish at any time a special assessment for the
purpose of paying or creating a reserve for, in whole or in part, the cost of any
expense which the Association is entitled to incur pursuant to the provisions of the
Declaration, the Articles or the Bylaws and which is not scheduled to be paid in a
Budget adopted by the Association. No special assessment may be levied by the
Association unless such special assessment has been approved by the Executive Board
and by the majority vote of the Owners present in person or proxy at a meeting called
for such purpose at which a quorum was present.
Section 7.8 The Association's Lien. The Association shall have from the date
of recording of this instrument a lien against each Unit to secure payment to the
Association of all assessments with respect to such Unit, interest thereon and all costs
and expenses of collecting such assessments and charges including reasonable attorney's
fees. The Association's lien shall be prior and superior to all other liens and
encumbrances on a Unit except: (a) liens and encumbrances recorded prior to the
mlh \towneplc \docs \ condo .de7 1 2
recordation of this instrument; (b) the Security Interest of a first lien or with respect
to such Unit except to the extent specified in the Act; (c) liens for real estate taxes and
other governmental charges against such Unit; and (d) mechanic's and materialman's
liens which by law may be prior to the Association's lien. The Association's lien shall
attach from the date of recording of this instrument and shall be considered perfected
without the necessity of recording a notice of lien. Nevertheless, the Association may
record in the real estate records of Pitkin County, Colorado, a notice of lien which
shall be executed by an officer or director of the Association and which shall contain
substantially the following information: (i) the legal description of the Unit against
which the lien is claimed; (ii) the name of the defaulting Owner of such Unit as
indicated by the Association's records; (iii) the total unpaid amount together with
interest thereon and costs of collection as of the date of such notice; (iv) a statement
that the notice of lien is made by the Association pursuant to the Declaration; and (v)
a statement that a lien is claimed and will be foreclosed against such Unit in an amount
equal to the amount stated as then due and any additional amounts thereafter
becoming due. No failure or omission of the Association to file any notice of lien shall
affect the validity, priority or enforceability of such lien. The Association's lien may
be foreclosed upon in the manner provided by Colorado for the foreclosure of
mortgages encumbering real property. In any such foreclosure, the Owner of the Unit
subject to such foreclosure shall be required to pay the costs and expenses of'such
proceedings, including reasonable attorney's fees. The Association shall be entitled to
purchase the Unit at any foreclosure sale, and to hold, lease, mortgage or convey the
same. In any such foreclosure action, the Court may appoint a receiver to collect all
sums alleged to be due from the Owner prior to or during the pendency of such
foreclosure or action. The Court may order the receiver so appointed to pay any sums
held by such receiver to the Association during the pendency of such foreclosure to
the extent of the unpaid assessments and charges.
Section 7.9 Statement of Unpaid Assessments. The Association shall furnish
to an Owner of a Unit or its designee or to a holder of a Security Interest or its
designee, upon written request, delivered personally or by certified mail, first -class
postage prepaid, return receipt requested to the Association's registered agent, a
written statement setting forth the amount of the unpaid assessments, if any, with
respect to such Unit. Such statement shall be furnished within fourteen (1 4) calendar
days after receipt of the request and is binding upon the Association, the Executive
Board and every Unit Owner. If no statement is furnished to the requesting party
delivered personally or by certified mail, first -class postage prepaid, return receipt
requested, to the inquiring party, then the Association shall have no right to assert a
lien upon the Unit for unpaid assessments which were due as of the date of the
request.
mlh \towneplc \ does \ condo .de3 1 3
Section 7.10 Working Fund. The Association or Declarant may require
each initial Unit Owner (other than Declarant) to make a non - refundable payment to
the Association in an amount equal to twenty-five percent (25 %) of the annual
Common Expense assessment against that Unit in effect at the initial closing thereof,
which sum shall be held, without interest, by the Association as a working fund. Said
working fund shall be collected and transferred to the Association at the time of closing
of the initial sale by Declarant of each Unit, as aforesaid, and shall be maintained for
the use and benefit of the Association. Such payment shall not relieve a Unit Owner
from making regular payments of assessments as the same become due. Upon the
transfer of its Unit such Owner shall be entitled to a credit from their transferee for
any unused portion of the aforesaid working fund. This account may be updated
annually as of December 31st, and notice shall be given to all Unit Owners whose
individual account does not equal twenty-five percent (25 %) of the current annual
assessment. Payment of any shortage shall be due with the next regular assessment
payment, following written notice.
ARTICLE VIII
Use and Other Restrictions
Section 8.1 Use of Residential Units. No Residential Unit shall be occupied for
living or sleeping purposes by more persons than the Unit was designed to safely
accommodate. Residential Units shall be used and occupied primarily for a residence
and secondarily for a home office if the home office complies with the following
criteria: (i) no goods or merchandise may be produced, stored, displayed or sold as
a part of the business conducted at the home office; (ii) only one other person not a
resident in the Unit may be employed or associated with the business conducted at the
home office; (iii) no separate entrance to the home office shall be permitted; and (iv)
no signs identifying the home office shall be permitted.
Section 8.2 Use of Parking Spaces. The Association shall from time to time
adopt reasonable rules governing the use of the parking spaces which are Limited
Common Elements.
Section 8.3 Maintenance of Units. Each Unit at all times shall be kept in a
clean, sightly and wholesome condition. No trash, litter, junk, machinery, lumber or
other building materials shall be permitted to remain exposed in any Unit so that the
same are visible from any neighboring Unit or any street. Declarant, its agents and
assigns and the Association and its agents, shall have the authority to enter and clean
up Units which do not conform to the provisions of this Section, and to charge and
collect from the Unit Owners thereof all reasonable costs related thereto.
mlh \towneplc \docAconoo.oe3 14
Section 8.4 Restrictions on Animals and Pets. No more than two (2) pets
(either dogs or cats or any combination thereof) shall be allowed in each of the
Residential Units; provided, however, dogs shall not be allowed to bark so as to
constitute a nuisance to other Owners; may not be tied up, kept or allowed
unattended on decks or any other Common Elements and shall be subject to such
further rules as the Association may from time to time promulgate. No other animals
shall be raised, bred, kept or regularly brought to the Common Interest Community
(including, without limitations, any birds, fish or other household pets) except for
those animals (if any) permitted under the provisions of the rules of the Association
and except for animals which are trained to and are in fact assisting persons with
disabilities. Notwithstanding the preceding pets shall not be allowed in the Affordable
Housing Units regardless of whether they are condominiumized in accordance with the
provisions of Section 3.11 above. In addition, renters of the Residential Units shall
be prohibited from having any pets.
Section 8.5 Zoning, Nuisances, Hazards. No Unit within the Common Interest
Community shall be used for any purpose other than as allowed by the local zoning
codes. No nuisance shall be permitted within the Common Interest Community, nor
any use, activity or practice which is a source of unreasonable annoyance or
embarrassment to, or which unreasonably offends or disturbs, any Unit Owner or
which may unreasonably interfere with the peaceful enjoyment or possession of the
proper use of a Unit or Common Element, or any portion of the Common Interest
Community by Unit Owners. Further, no unsafe, hazardous, offensive, or unlawful use
shall be permitted within the Common Interest Community or any portion thereof.
All valid laws, ordinances and regulations of all governmental bodies having jurisdiction
over the Common Interest Community or a portion thereof shall be observed.
Section 8.6 Compliance with Insurance Requirements. Except as may be
approved in writing by the Executive Board, nothing shall be done or kept on the
Common Interest Community which may result in a material increase in the rates of
insurance or would result in the cancellation of any insurance maintained by the
Association.
Section 8.7 Restriction on Signs and Advertising Devices. No signs (which term
shall include posters, billboards and advertising devices) of any kind shall be erected
or maintained anywhere within the Common Interest Community except such sign or
signs as may be approved in writing by the Executive Board.
Section 8.8 Restrictions on Floor Loads. No Owner of a Unit may place a load
on any floor which exceeds the floor load for which the floor was designed to support.
mlh \mwneplc \docAcondo.de3 1 5
No Owners of a Unit shall install, operate or maintain any item of heavy equipment
or make any other installation, except in a manner designed to achieve a proper
distribution of weight.
Section 8.9 Leasing of Units. Any Unit Owner shall have the right to lease its
Unit upon such terms and conditions as such Unit Owner may deem advisable, subject
to the following:
(a) Every lease or rental agreement shall be in writing and shall provide
that the lease or rental agreement is subject to the terms of this Declaration, the Bylaws
of the Association and the Articles of Incorporation and the rules and regulations of
the Association and shall state that the failure of the tenant or renter or guest to
comply with the terms of the Declaration or Bylaws of the Association, Articles of
Incorporation or the rules and regulations of the Association shall constitute a default
of such lease or rental agreement and such default may be remedied by the
Association which remedy may include eviction. Notwithstanding the foregoing
requirements , short term rentals (i.e., not to exceed fourteen (14) days) need not be
in writing but shall nevertheless remain subject to the terms of the Declaration, the
Bylaws of the Association and the Articles of Incorporation and rules and regulations
of the Association.
Section 8.10 No Rights of First Refusal. The rights of a Unit Owner to lease,
sell, transfer or otherwise convey its Unit shall not be subject to any right of first
refusal or similar restriction and such Unit may be sold free of any such restrictions.
Section 8.11 No Restrictions on Mortgaging of a Unit. There are no
restrictions on the right of the Unit Owners to mortgage or otherwise encumber their
Units. There is no requirement for the use of a specific lending institution or particular
type of lender.
Section 8.12 No Time Shares. No Unit shall be submitted to or conveyed
pursuant to a timesharing or interval ownership arrangement.
Section 8.13 Rules and Regulations. Consistent with and in furtherance of the
intent, purposes and provisions of this Declaration governing the Common Interest
Community rules and regulations may be adopted, amended, or repealed from time
to time by the Executive Board. All rules adopted by the Association shall be
reasonable and uniformly applied. The Executive Board may also establish and enforce
penalties and fines for the infraction thereof which fines shall be collectable as
assessments in the manner provided in Article VII above.
mlh \ townepk \docs\rondo.de3 16
•
ARTICLE IX
Design Review
Section 9.1 Required Approvals. No structural improvements to the interior
of a Unit or any structure or any attachment to the exterior of the buildings or to
other existing structure, shall be constructed, erected, placed or installed within the
Common Interest Community, including but not limited to, a change in painting
and /or staining of exterior siding, unless complete plans and specifications thereto (said
plans and specifications to show design, materials, color, location, as well as such other
information as may be required) shall have been first submitted to and approved in
writing by the Executive Board. The approval or consent of the Executive Board on
matters properly coming before it shall not be unreasonably withheld or delayed, and
actions taken shall not be arbitrary or capricious and decisions shall be conclusive and
binding on all interested parties. Upon its review of any plans, specifications or
submittals, the Executive Board may require that the applicant(s) reimburse the
committee for actual expense incurred by it in its review and approval process. The
Executive Board shall not refuse to permit any Unit Owner to make reasonable
modifications to their Unit or to any Limited Common Element which the Unit Owner
has the right to use, if such modifications are necessary under the Americans with
Disabilities Act.
Section 9.2 Periods of Restricted Construction. No major remodeling,
renovations or other substantial construction work may commence, occur or be carried
out in the Units during the period beginning December 1 and ending April 1 or
between July 1 and Labor Day of each year unless the written consent of the Owners
of the other Units (i.e., the Unit that is not the subject of such remodeling,
construction or renovations) is first obtained. Nothing herein shall prevent any
emergency or other repairs or routine maintenance or cleaning being made or
performed at any time.
Section 9.3 Variances. The Executive Board may grant reasonable variances
or adjustments from any conditions and restrictions imposed by this Declaration in
order to overcome practical difficulties and unnecessary hardships arising by reason of
the application of the conditions and restrictions contained in this Declaration. Such
variances or adjustments shall be granted only when the granting thereof shall not be
materially detrimental or injurious to the other Units or Common Elements nor deviate
substantially from the general intent and purpose of this Declaration.
Section 9.4 Waivers. The approval or consent of the Executive Board to any
application for design approval shall not be deemed to constitute a waiver of any right
mlh \Wwnepk \docs \condo.de3 1 7
to deny approval or consent as to any application on other matters subsequently or
additionally submitted for approval or consent.
Section 9.5 Liability. Neither the Association nor the Executive Board nor any
members thereof, nor any representative of any committee designated to act on its
behalf, shall be liable for damages to any person submitting requests for approval for
any failure to approve or disapprove any matter within its jurisdiction under this
Declaration.
Section 9.6 Records. The Executive Board shall maintain written records of all
applications submitted to it and of all actions taken by it with respect thereto. Such
records shall be open and available for inspection by any interested party during
normal business hours.
Section 9.7 Enforcement. Enforcement of the provisions of this Article IX,
may be by any proceeding at law or in equity against any person or persons violating
or attempting to violate any such provision. The Association and any interested Unit
Owner shall have the right, but not the obligation, to institute, maintain and prosecute
any such proceedings. In any action instituted or maintained under this Article, the
Association shall be entitled to recover its costs and reasonable attorney's fees incurred
pursuant thereto, as well as any and all other sums awarded by the Court. Failure of
the Association or any Unit Owner to enforce any covenant or restriction herein
contained shall in no event be deemed a waiver of the right to do so thereafter.
ARTICLE X
Insurance
Section 10.1 Insurance Carried. The Association shall obtain and maintain in
full force and effect to the extent reasonably available, and at all times, the insurance
coverage set forth herein and as set forth in the Act, which insurance coverage shall
be provided by financially responsible and able companies duly authorized to do
business in the State of Colorado. Commencing not later than the time of the first
conveyance of a Unit to a person other than Declarant, the Association shall maintain,
to the extent reasonably available, policies with the following terms or provisions:
(a) All policies of insurance shall contain waivers of subrogation and
waivers of any defense based on invalidity arising from any acts of a Unit Owner and
shall provide that such policies may not, unless otherwise provided by statute, be
canceled or not renewed without at least thirty (30) days prior written notice to all
of the Unit Owners, holders of first lien Security Interests and the Association.
mlh \towneplc \ doe \ condo .de3 18
(b) If requested, duplicate originals of all policies and renewals thereof
or certificates or memoranda of insurance, together with proof of payments of
premiums, shall be delivered to any Unit Owner or holder of a first lien Security
Interests.
(c) All liability insurance shall be carried in blanket form covering
Declarant, the Association, the Executive Board, the managing agent, if any, and their
respective employees, agents and all persons acting as agents.
(d) Prior to obtaining any policy of property insurance or renewal
thereof, pursuant to the provisions hereof, the Executive Board may obtain an appraisal
from a duly qualified real estate or insurance appraiser, which appraiser shall reasonably
estimate the full replacement value of the Units and the Common Elements, without
deduction for depreciation and shall review any increases in the cost of living, and /or
consider other factors for the purpose of determining the amount of the insurance to
be effected pursuant to the provisions hereof. The total mount of property insurance
must not be less than full insurable replacement cost (at the time of purchase of
insurance and at each renewal date) Tess applicable deductions exclusive of land,
excavations, foundations and other items normally excluded.
(e) Unit Owners may carry and are advised to carry other insurance
for their benefit and at their expense, provided that the liability of the carriers issuing
insurance obtained by the Association shall not be affected or diminished by reason of
any such additional insurance carried by Unit Owners and provided, further, that the
policies of insurance carried by the Association shall be primary, even if a Unit Owner
has other insurance that covers the same loss or losses as covered by policies of the
Association. In this regard, Declarant discloses that the Association's insurance
coverage, as specified hereunder and under the Act, does not obviate the need for
Unit Owners to obtain insurance for their own benefit.
(f) All policies of insurance shall provide that the insurance thereunder
shall be invalidated or suspended only in respect to the interest of any particular Unit
Owner guilty of a breach of warranty, act, omission, negligence or non - compliance of
any provision of such policy, including payment of the insurance premium applicable
to the Unit Owner's interest, or who permit or fails to prevent the happening of any
event, whether occurring before or after a loss, which under the provisions of such
policy would otherwise invalidate or suspend the entire policy, but the insurance under
any such policy, as to the interests of all other insured Unit Owners not guilty of any
such act or omission, shall not be invalidated or suspended and shall remain in full
force and effect.
mjh \townepk \ doe \ condo .de3 1 9
Section 10.2 Property Insurance on the Units and Common Elements. The
Association shall obtain adequate property insurance covering Toss, damage or
destruction by fire or other casualty to the Units, to the Common Elements and the
other property of the Association. The insurance obtained on the Units is not required
to include improvements and betterments installed by Unit Owners. If coverage
purchased by the Association includes improvements and betterments installed by Unit
Owners, the cost thereof shall be assessed to each Unit in proportion to risk. All
policies shall contain a standard non - contributory mortgage clause in favor of each
holder of first lien Security Interests, and their successors and assigns, which shall
provide that the loss, if any thereunder, shall be payable to the Association for the use
and benefit of such holders of first lien Security Interests, and their successors and
assigns, as their interests may appear of record in the records of the office of the Clerk
and Recorder of the County of Pitkin, Colorado.
Section 10.3 Liability Insurance. The Association shall obtain adequate
comprehensive policy of public liability insurance against claims and liabilities arising
in connection with the ownership, existence, use and management of the Common
Elements, in such limits as the Executive Board may from time to time determine, but
not in any event less than One Million Dollars ($1,000,000.00) per injury, per
person, and per occurrence, and in all cases covering all claims for bodily injury or
property damage. All liability insurance shall name the Association as the insured.
Section 10.4 Fidelity Insurance. The Association shall obtain adequate fidelity
coverage or fidelity bonds to protect against dishonest acts on the parts of its officers,
directors, trustees and employees and on the part of all others who handle or are
responsible for handling the funds of the Association, including persons who serve the
Association with or without compensation. The clause "officers, directors, trustees and
employees" shall not include any officer, director, agent or employee of any
independent, professional manager or managing agent heretofore or hereafter
employed by the Association. The fidelity coverage or bonds should be in an amount
sufficient to cover the maximum funds that will be in control of the Association, its
officers, directors, trustees and employees.
Section 10.5 Worker's Compensation and Employer's Liability Insurance. The
Association shall obtain worker's compensation and employer's liability insurance and
all other similar insurance with respect to its employees in the amounts and forms as
may now or hereafter be required by law.
Section 10.6 Officers' and Directors' Personal Liability Insurance. The
Association may obtain officers' and directors' personal liability insurance to protect
mlh \rownenlc \doa \condo de3 20
the officers and directors from personal liability in relation to their duties and
responsibilities in acting as officers and directors on behalf of the Association. Neither
the term "officers" nor the term "directors" shall include any officer, director, agent
or employee of any independent professional manager or managing agent heretofore
or hereafter employed by the Association.
Section 10.7 Other Insurance. The Association may obtain endorsements to
policies or additional insurance against such other risks, of similar or dissimilar nature,
as it shall deem appropriate with respect to the Association responsibilities and duties.
Section 10.8 Insurance Premium. Except as assessed in proportion to risk as
permitted under the terms of this Declaration, insurance premiums for the above
provided insurance shall be a Common Expense to be included as a part of the annual
assessments levied by the Association.
Section 10.9 Managing Aeent Insurance. The manager or managing agent, if
any, shall be insured to the same extent as the Association, as herein provided, and as
provided in the Act, for the benefit of the Association, and shall maintain and submit
evidence of such coverage to the Association.
Section 10.10 Waiver of Claims Against Association. As to all policies of
insurance maintained by or for the benefit of the Association and Unit Owners, the
Association and the Unit Owners hereby waive and release all claims against one
another, the Executive Board and Declarant, to the extent of the insurance proceeds
available, whether or not the insurance damage or injury is caused by the negligence
of or breach of any agreement by said person.
Section 10.11 Annual Insurance Review. The Board shall review the insurance
carried by and on behalf of the Association at least annually for the purpose of
determining the amount of insurance required.
Section 10.12 Adjustments by the Association. Any loss covered by an
insurance policy described above shall be adjusted with the Association, and the
insurance proceeds for that Toss shall be payable to the Association, and not to any
holder of a first lien Security Interests. The Association shall hold any insurance
proceeds in trust for the Association, Unit Owners and holders of first lien Security
Interests as their interests may appear. The proceeds must be distributed first for the
repair or restoration of the damaged property, and the Association, Unit Owners and
holders of first lien Security Interests are not entitled to receive payment of any
mph \towneplc \doa\condo.de3 21
portion of the proceed unless there is a surplus of proceeds after the damaged property
has been completely repaired or restored.
Section 10.13 Duty to Repair. Any portion of the Common Interest
Community for which insurance is required under this Article which is damaged or
destroyed must be repaired or replaced promptly by the Association, except as
provided in the Act.
ARTICLE XI
Special Rights of Holders of First Lien Security Interests
Section 1 1.1 General Provisions. The provisions of this Article are for the
benefit of all beneficiaries or holders of first lien Security Interests recorded within the
Common Interest Community. To the extent applicable, necessary or proper, the
provisions of this Article XI apply to both this Declaration and to the Articles and
Bylaws of the Association. A holder or beneficiary of a first lien Security Interest who
has delivered a written request to the Association containing its name, address and the
legal description and the address of the Unit upon which its holds a Security Interest,
shall be entitled to: (a) receive timely written notice from the Association of any
default by a mortgagor of a Unit in the performance of the mortgagor's obligations
under this Declaration, the Articles of Incorporation, the Bylaws or the rules and
regulations, which default is not cured within sixty (60) days after the Association
learns of such default; (b) examine the books and records of the Association during
normal business hours; (c) receive a copy of financial statements of the Association;
(d) receive written notice of all meetings of the Executive Board or Members of the
Association; (e) designate a representative to attend any such meetings; and (f) receive
written notice of any lapse, cancellation, or material modification of any insurance
policy or fidelity bond maintained by the Association.
ARTICLE XII
Enforcement
Section 12.1 Enforcement. The Association or a Unit Owner or Unit Owners
of any of the Units may enforce the restrictions, conditions, covenants and reservations
imposed by the provisions of this Declaration by proceedings at law or in equity against
any person or persons, either to recover damages for such violation, including
reasonable attorney's fees incurred in enforcing these covenants, or to restrain such
violation or attempted violation. Failure of the Association or of any Unit Owner to
enforce any covenant or restriction herein contained shall in no event be deemed a
waiver of the right to do so thereafter.
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ARTICLE XIII
Amendments
Section 13.1 Amendment to Declaration or Map. Except in the case of
amendments that may be executed by Declarant or the Association as allowed by the
Act or as provided below, this Declaration, including the Map, may be amended only
by the vote or agreement of Owners of Units to which seventy-five percent (75 %)
or more of the votes in the Association are allocated. Every amendment to the
Declaration must be: (1) recorded in the real estate records of Pitkin County, Colorado
and is effective only upon recordation; (ii) indexed in the grantee's index in the name
of the Common Interest Community and the Association and in the grantor's index
in the name of each person executing the Amendment. Except to the extent expressly
permitted or required by the Act, no amendment may create or increase the number
of Units, or change the boundaries of any Unit or the Allocated Interests of a Unit,
or the uses to which any Unit is restricted, in the absence of unanimous consent of the
Unit Owners. Amendments to this Declaration shall be prepared, executed, recorded,
and certified on behalf of the Association by any officer of the Association designated
for that purpose or, in the absence of designation, by the President of the Association.
All expenses associated with preparing and recording an Amendment to the
declaration shall be the sole responsibility of the Association except as otherwise
provided in the Act.
ARTICLE XIV
Restoration and Termination
Section 14.1 Restoration. If at any time all Owners and all holders of first lien
Security Interests shall agree that the Common Interest Community has become
obsolete and shall approve a plan for its renovation or restoration, the Association shall
promptly cause such renovation or restoration to be made according to such plan. All
Owners shall be bound by the terms of such plan and the costs of the work shall be a
Common Expense.
Section 14.2 Termination. If at any time an agreement to terminate the
Common Interest Community is obtained from all Owners and all holders of first lien
Security Interests in accordance with the provisions of the Act, the Association shall
promptly undertake the actions required of the Association under the provisions of the
Act. Upon completion of such actions by the Association, this Declaration shall
automatically terminate without any further action.
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ARTICLE XV
Condemnation
Section 15.1 Appointment of Association as Attorney -in -Fact. Each Owner,
on such Owner's behalf and on behalf of such Owner's heirs, devisees, legal
representatives, successors and assigns, does irrevocably constitute and appoint the
Association with full power of substitution, as such Owner's true and lawful attorney -
in -fact such Owner's name, place and stead to deal with such Owner's interest in such
Owner's Unit upon condemnation of such Owner's Unit with full power, right and
authorization to execute, acknowledge and deliver any contract, deed or other
document affecting the interest of such Owner, and to take any other action which the
Association may consider necessary or advisable to give effect to the provisions of this
Section 15.1. If requested to do so by the Association, each Owner shall execute and
deliver a written instrument confirming such appointment. The action of the
Association in settling any condemnation claim shall be final and binding on all
Owners.
Section 15.2 Entire Taking. If the entire Common Interest Community is taken
under any statute, by right of eminent domain, or by purchase in lieu thereof, or if any
part of the Common Interest Community is taken and the part remaining may not
practically or lawfully be used for any purpose permitted by this Declaration, the
Association (as attorney -in -fact for the Owners) shall collect the award made in such
taking and shall sell the part of the Real Estate remaining after the taking, if any, free
and clear of the provisions of this Declaration which shall automatically terminate upon
the recording of a notice by the Association setting forth all of such facts without any
further action. The award and the proceeds of such sale, if any, shall be distributed
by the Association in the manner provided in the Act.
Section 15.3 Partial Taking. If a taking occurs other than a taking specified in
Section 15.2 hereof, then the Association (as attorney -in -fact for the Owners) shall
collect the award made in such taking, shall promptly cause the portion of the
Common Interest Community not so taken to be restored as nearly as possible to its
condition prior to the taking, and shall prepare, execute and record an amendment to
the Declaration which confirms any reallocation of the Allocated Interests made
pursuant to the provisions of the Act. The costs of such restoration shall be a
Common Expense payable by the Owners in accordance with respective Allocated
Interests after any reallocation referred to in the preceding sentence. The award paid
to the Association as a result of any such taking shall be disbursed by the Association
as follows:
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(a) If a Unit is taken, the portion of such award attributable to such
Unit shall be disbursed to the Owner of such Unit or the lienholders with respect to
such Unit, as their interests may appear; and
(b) Any portion of such award not disbursed pursuant to the provisions
of Section 15.3(a) hereof shall be disbursed to the Owner of each Unit or the
lienholders with respect to such Unit, as their interests may appear, in accordance with
the reallocation of such Allocated Interests as referred to in Section 15.3 above.
ARTICLE XVI
Miscellaneous
Section 16.1 Severability. Each of the provisions of this Declaration shall be
deemed independent and severable. If any provision of this Declaration or the
application thereof to any person or circumstances is held invalid, the invalidity shall
not affect other provisions or applications of this Declaration which can be given effect
without the invalid provisions or applications.
Section 16.2 Term of Declaration. This Declaration shall continue and remain
in full force and effect in perpetuity as the same may be amended from time ta time
in accordance with the provisions of Article XIII, unless this Declaration be terminated
in accordance with the Act.
Section 16.3 Singular Includes the Plural. Unless the context otherwise
requires, the singular shall include the plural, and the plural shall include the singular,
and each gender referral shall be deemed to include the masculine, feminine and
neuter.
Section 16.4 Captions. All captions and titles used in this Declaration are
intended solely for convenience of reference and shall not enlarge, limit or otherwise
affect that which is set forth in any paragraph, section or article hereof.
Section 16.5 Colorado Law. The interpretation, enforcement and any other
matters relative to this Declaration shall be construed and determined in accordance
with the laws of the State of Colorado.
Section 16.6 Disclaimer. Unless otherwise provided by the Act, no
representations or warranties of any kind, express or implied, have been given or made
by Declarant, or its agents or employees, in connection with this Common Interest
Community, or any portion thereof, or any improvement thereon, its physical
mjh \towneplc \doa\condo.de3 25
condition, zoning, compliance with applicable laws, fitness or intended use or
operation, cost of maintenance or taxes except as expressly set forth in this
Declaration.
Section 16.7 Limited Liability. A director or an officer of the Association shall
not be liable for actions taken or omissions made in the performance of his or her
duties except for wanton and willful acts and except for acts specified in §7-24-111
of the Colorado Revised Statutes. Unless otherwise required by the Act, Declarant and
any agent or employee of Declarant shall not be liable to any party for any action or
for any failure to act with respect to any matter arising in connection with the
Declaration if the action taken or failure to act was in good faith and without malice.
Section 16.8 Conflicts with Articles, Bylaws or Rules of Association. In the
event of any conflict or inconsistency between provisions of this Declaration and the
Articles or Bylaws or Rules and Regulations of the Association, the provision of this
Declaration shall govern and control.
Section 16.9 Covenants Running with the Land. Each provision of this
Declaration, and any agreement, promise, covenant and undertaking to comply with
each provision of the Declaration shall be deemed a covenant running with the land as
a burden with and upon the title to each Unit for the benefit of all the Real Estate.
IN WITNESS WHEREOF, the Declarant has signed this Declaration this
day of July, 1997.
DECLARANT:
TOWNE PLACE, LLC, a Colorado
limited liability company
By:
Sam Korn, Manager
STATE OF COLORADO
)ss.
COUNTY OF PITKIN )
The foregoing Condominium Declaration for the Summit Place Condominiums
was acknowledged before me on this day of July, 1997, by Sam Korn as
Manager for Towne Place, LLC, a Colorado limited liability company.
WITNESS my hand and official seal
My commission expires:
Notary Public
mih \towneplc \doc \ condo .de3 26
EXHIBIT A
Legal description of Real Estate
and
Recording Data
LEGAL DESCRIPTION
CARRIAGE HOUSE SUBDIVISION AND
PLANNED UNIT DEVELOPMENT, according to the Plat thereof
recorded June 9, 1995 in Plat Book 37 at Page 44 and in the
Amended Plat recorded on May 29, 1996 in
Plat Book 39 at Page 77
Recorded data for Easements and Licenses
A. Reservations and Exceptions as set forth in Deeds from the City of Aspen
recorded in Book 59 at Page 330 and in Book 59 at Page 559 providing as follows:
"that no title shall be hereby acquired to any mine of gold,
silver, cinnabar or copper or to any valid mining claim or
possession held under existing laws."
B. Terms, conditions, provisions, obligations and all matters as set forth in
Subdivisions Improvements Agreement recorded June 9, 1995 in Book 783 at Page
93.
C. Easements, rights-of -way and all matters as disclosed on the Plat and the
Amended Plat.
D. Terms, conditions, provisions, obligations and all matters as set forth in
Ordinance No. 49, Series of 1994 by the City of Aspen recorded January 11, 1995
in Book 771 at Page 487, in City Planning and Zoning Commission Resolution No.
94 -36 and City of Aspen Ordinance No. 65 Series of 1994, as same have been
amended by Memorandum approved on March 7, 1996 by the City of Aspen
Community Development Director.
E. Terms, conditions, provisions and obligations as set forth in Occupancy
and Rental /Sales Deed Restriction and Agreement recorded June 28, 1996 as
Reception No. 394178.
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4 .
EXHIBIT B
Table of Interests
Percentage Share Percentage Votes in
of Ownership in Share of Common Affairs of
the Common Interest Association
Unit Unit Tvoe Elements Expenses
A Residendal 25% 25% 25%
B Residendal 25% 25% 25%
C
Residendal 25% 25% 25%
D Residendal 25% 25% 25%
Totals 100% 100% 100%
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