HomeMy WebLinkAboutLand Use Case.280 Pfister Dr.A004-99
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CASE NUMBER
PARCEL ID #
CASE NAME
PROJECT ADDRESS
PLANNER
CASE TYPE
OWNER/APPLICANT
REPRESENTATIVE
DATE OF FINAL ACTION
CITY COUNCIL ACTION
PZ ACTION
ADMIN ACTION
BOA ACTION
DATE CLOSED
BY
A004-99
2735-113-09036
Maroon Creek Club Lot 36 ,Insubstantial PUD Amendment
Maroon Creek Club Lot 36
Chris Bendon
Insubstantial Amendment
Richard Wax
Michael FigenbaumlHolland & Hart
Approved
3/6/00
Chris Bendon
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ASPENIPITKIN COMMUNITY DEVELOPMENT DEPARTMENT
December 7, 1999
Richard Wax
1150 River Drive
Aspen CO 81611
Re: AOO4-99 Maroon Creek Club Lot 35 Insubstantial PUD Amendment
Previous balance
Amount
Balance due
$92.50
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$92.50
130 South Galena Street - Aspen, Colorado 81611 - (970) 920-5090
JUN-10-SS 14,08 FROM,HOLLAND&HART
IO,S?0S25S36?
PAGE
2/2
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HOLLAND & HARTlLl'
A'I"I'ORNEYS AT LAW
I;)eNVER'" ASPEN
BOULDER. COI.ORA.OO SPRINGS
DENVEii< _~ eeNlER
en.t.l~~" QOISI;
CHE'(GNNS" JACKSON HOle
$.AJ..TUKEcnv
000 c~ MAW STRSET
ASP~, COLORADO 31el1-1U$,
T'ELEPl<<m<: ~O) =-:Wl~
:FACSIMILE (WO) 92s.:9$G7
ulCHASL. ~BAUM
~ta.JmO.l:tol~rt.(;l;Im
June 10. 1999
By FACSIMlLE
Mr. Chris Bendan
Community Development DepartmCIlt
130 South Galena St~et
Aspen, Colorado 111611
Re: Application for Insubstantial POO amCIldment for Lot 36,
Maroon Creek Club POO. City of Aspen, Colorado
Dear Chris:
In connection with thCol above referColnced Application submitted to you on January 13,
1999, it is my understanding that Asp<:n Survey Engineers has delivered to you copies of the
prelimimuy Maroon Creek Club Lot 36 P.U.D. Amendment., which should be atW:hed to the
Application as Exhibit E. As you know, the original su.rveyor on the project was Carl R.
Carmichael, but due to difficulties Mr. Cannichael was recently replaced by John Howorth,
who has prepared the l.U.D. Amelldment.
The P.U.D. Amendment indicates the rear setback encroachments dis<nlSSOO in the
Application and oertain other encroachments by the roof eaves on the front and side setbaoks.
Please consider the Application modif>ed to i"dude the encroacbtnents shown on the P.U.D.
AmendIllent.
I note that the preliminary P.U.D. Amendment contains several typographical errors
which will be corrected when we have received your approval to proceed to a final version.
J;>lease let me know if you bave any questions or comments, or if there is anything else you
will requite before apptoviXlg the Application.
On behalf of Richard Wax, I want to ~press his appreoiation for the patienoe and
understanding that you and the Planning Office have shown du.ring this process.
Sincerely,
Iifi; -
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Mioha.el Feigenbaum
fur Holland & Hart LLP
cc: Jeff Davis
ASPEN:oaZ71S0.01
MAR-12-99 13:11 FROM:HOLLAND&HART
ID,971219259387
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HOILAND & HARTw>
ArtORNllYS ATLAW
To:
Carl Catmichael
From:
Michael Feigenbaum
March 12, 1999
Re:
Lot 36, Maroon Creek Club
Date:
By FACSIMILE
Carl,
In addition to the standard plat DOteS, surveyor notes,. prOperty description, bearings and
signature blocks (Owner, Title Company, Community Development director, City Engineer and
CIeri<. and Recorder), please insert the following language on the Plat amendment for Lot 36,
Maroon Creek Club:
The modification of the building envelope depicted on this Maroon Creek
Club Lot No. 36, PUD. Amendment No.1, shall not be deemed to be a legal
noncomforming dimension, but shall be valid only for the life oftbe building exiSting
on the date hereof.
Please call me 'With any questions.
cc; Chris Bendon
ASI"EN_~.Ol
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HOLLAND & HART LLP
ATTORNEYS AT LAW
DENVER' ASPEN
BOULDER' COLORADO SPRINGS
DENVER TECH CENTER
BILLINGS' BOISE
CHEYENNE' JACKSON HOLE
SALT LAKE CITY
600 EAST MAIN STREET
ASPEN, COLORADO 81611.1953
TELEPHONE (970) 925-3476
FACSIMilE (970) 925-9367
MICHAEL FEIGENBAUM
mfeigenbaum@hollandhart.com
January 13, 1999
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AS"EN I PiTKIN
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VIA HAND DELIVERY
Mr. Chris Bendon
Community Development Department
13 0 South Galena Street
Aspen, Colorado 81611
Re: Application for Insubstantial PUD amendment for Lot 36,
Maroon Creek Club PUD. Citv of Asoen. Colorado
Dear Chris:
This application is for the following:
Code Section
Insubstantial PUD amendment
For Lot 36, Maroon Creek Club
26.84.080
Applicant:
Lot 36 Maroon Creek Club, LLC, a Colorado limited liability
company
BACKGROUND AND SUMMARY OF ISSUE
Tiehack Development Corporation is the owner and developer of Lot 36, The Maroon
Creek Club PUD, which has a street address of280 Pfister Drive, Aspen, Colorado 81611.
The property is located adjacent to the Buttermilk Ski Area, as shown on the Vicinity Map,
attached hereto as Exhibit A. The property is approximately 15,000 square feet and is zoned
R-15, and is a legally created lot in the Maroon Creek Club PUD. The existing approvals for
the Property and Maroon Creek Club PUD are listed as Exception Nos. 9, 11, 13, 14-17,20,
26,27,32,33 and 35 in the Title Policy described below.
As evidence of ownership, a Policy of Title Insurance issued by First American Title
Insurance Company, dated February 7, 1997, is attached hereto as Exhibit B. Pursuant to the
Operating Agreement dated June 15, 1998, the applicant, Lot 36 Maroon Creek Club, LLC, is
authorized to develop the property with a spec home. The Operating Agreement is attached
hereto as Exhibit C. The architect working on the development project is Gibson-Reno
Architects. The surveyor working on the project is Carl R. Carmichael PLS.
The R-15 zone district requires a 30 foot front setback and 20 foot side and rear
setbacks. The building envelope of the property is depicted on the Survey prepared by Carl
Carmichael on March 16, 1998, which is attached hereto as Exhibit D. I have also attached a
portion of the recorded PUD as Exhibit D-l, which also depicts the building envelope. The
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HOLLAND.& ,HART LLP
ATTORNEYS AT LAW
Mr. Chris Bendon
January 13, 1999
Page 2
applicant commenced construction on the project in July, 1998, in accordance with generally
accepted industry standards, and at all times believed in good faith that the project was being
constructed consistent with all applicable approvals. In December, 1997, the applicant was
made aware that a portion of structure encroached upon the rear setback at several locations.
These encroachments are depicted on the Survey prepared by Carl Carmichael dated January
_, 1999, which is attached hereto as Exhibit E. An affidavit from Carl Carmichael
describing the circumstances which led to the encroachments is attached hereto as Exhibit F.
The applicant hereby requests approval of a Insubstantial pun Amendment for Lot
36, the Maroon Creek Club pun, to permit the encroachments depicted on Exhibit E for the
life of the existing structure. No other approvals or changes are requested.
CRITERIA FOR Al'PROV AL
The applicant has satisfied the criteria for the Insubstantial pun amendment, as
described in Section 26.84.080(A)(9) of the Code. In particular, on the direction of the
Aspen City Attorney's Office, the Insubstantial PUD Amendment requested herein shall not
constitute a further variation of the project's approved dimensional standards because such
encroachments are deemed to be temporary and shall only be in effect during the life of the
existing structure.
SUPPORTING APPLICATION MATERIAL
The following supporting information is submitted to the Planning Office separately.
I. Owner's Consent
2. Copy of Pre-Application Summary
3. Agreement to Pay Form
Please call me with any questions you have relating to the application. Thank you for
your time and assistance in this matter.
Sincerely,
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Michael Feigenbaum
for Holland & Hart LLP
Enclosures
cc: Jeff Davis
ASPEN:002S7SS.01
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January 12, 1999
Mr, Chris Bendon
Community Development Department
130 South Galena Street
Aspen, Colorado 81611
Dear Mr. Bendon:
The undersigned hereby authorizes Michael Feigenbaum to act on behalf of Lot 36
Maroon Creek Club, LLC in connection with matters relating to the application for the
Insubstantial PUD Amendment for the property located at Lot 36, Maroon Creek Club
PUD, in Aspen, Colorado.
LOT 36 MAROON REEK CLUB, LLC
By:
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CITY OF ASPEN
PRE-APPLICATION CONFERENCE SUMMARY
PLANNER:
Chris Bendon, 920.5072
DATE: 1.11.99
PROJECT:
REPRESENTATIVE:
OWNER:
TYPE OF APPLICATION:
DESCRIPTION:
Maroon Creek Club Lot #36 PUD Amendment # I
Michael Figenbaum
Richard Wax and Assoc.
Insubstantial PUD Amendment
Amendment to building envelope
Land Use Code Section(s)
26.84.080 . Planned Unit Development Amendments
Review by:
Public Hearing:
Referral Agencies:
Planning Fees:
Referral Agency Fees:
Total Deposit:
Staff, Referral agencies, Director
No.
Engineering,
Planning Deposit Minor ($460)
Engineering, Minor ($160);
$620(additional hours are billed at a rate of$185/hour)
To apply, submit the following information:
I. Proof of ownership.
2. Signed fee agreement.
3. Applicant's name, address and telephone number in a letter signed by the applicant which states the name,
address and telephone number of the representative authorized to act on behalf of the applicant. .
4. Street address and legal description of the parcel on which development is proposed to occur, consisting of a
current certificate from a title insurance company, or attorney licensed to practice in the State of Colorado,
listing the names of all owners of the property, and all mortgages, judgments, liens, easements, contracts and
agreements affecting the parcel, and demonstrating the owner's right to apply for the Development Application,
5. Total deposit for review of the application
6. 2 Copies of the complete application packet and maps.
HPC = 12; PZ = 10; GMC = PZ+5; CC = 7; Referral Agencies = Ilea.; Planning Staff= I
7. An 8 1/2" by 11" vicinity map locating the parcel within the City of Aspen.
8. Affidavit from surveyor of error.
9. Site improvement survey including topography and vegetation showing the current status, including all
easements and vacated rights of way, of the parcel certified by a registered land surveyor, licensed in the state of
Colorado. (This requirement, or any part thereof, may be waived by the Community Development Department if
the project is determined not to warrant a survey document.) Draft plat.
10, Add,itional materials as required by the specific review. Please refer to the application packet for specific
submittal requirements or to the code sections noted above.
II. A written description of the proposal and an explanation in written, graphic, or model form of how the proposed
development complies with the review standards relevant to the development application. Please include
existing conditions as well as proposed.
12. Copies of prior approvals (Copy of approved plat map for Lot 36)
Disclaimer:
The foregoing summary is advisory in nature only and is not binding on the City. The summary is based on current zoning, which is
subject to change in the future, and upon factual representations that mayor may not be accurate. The summary does not create a
legal or vested right.
Jan 12 99 03:00p JeTT~e~ B. Davis
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JAN-11-99 17,13 FROM, HOL ,l}&HART
(970J
ID,9709259~
,
544-5116
PACE
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5/10
ASPENIP1TKl!'l
COMMUNITY DEVEtOPMENr DEPARTMENT
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Arl'~r:nt fftr Paynten! o{Citv or A$.p~l\ l)evef^pment Aoufintion F~
CITY OF ASPEN (hereinafterCITI) and La t 36 Maroon Creek Club LLC
(bereinafter APPLICANT) ACREE AS FOLLOWS:
l. APPLICANT has submiued to CIT':" an opp!ication for
a PUD insubstantial amP-namP-nt
(hereinaiter. THE PROJECT).
:i. APpLICANT understands and ~ees :hat City of ASJlOll Ordinance No. 49 (Series of 199&)
<0. eStablishes a fee: .stntenlre for Planning appiieations and the -payment of all processing fees is a condition precedent
to a de1:ermination Qf application complereness.
3. APPLICANT and CITY agre. that becaus< of lhe size, nature or scope of the proposed proje<t, it
is nO! possible at Ihis time to asce".in' the full ""tent of the cOstS involved in procCssing rhe application.
APPLICANT and CITY funher agree that it is in the interest of the partie. that APPLICANT make payment of an
initial deposit and '0 thereafter permit addition21 COstS to be biiled to APPLICANT on a monthly basis.
APPLICANT agees he will be bctlefrted by retaining greater casb liquidity and will make additIo.a' payments
"pon notification by the CITY whee they are neeessary as COSIS "'" incurred. CITY ogrecs it wHl be benefited
througll lbe grea.er certainty of recovering its full costs to process APPLICANT'. application.
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4. CITY and APPLICANT funher agree that it is impracticable for CITY staff to comple..
processing Qf present sufficicm infonnarion to the Planning Commission andlot City Council to enable the Planning
Commission andfor CiI:y COlll1cii to make le8al1y required findings for project approval. Wlless ctlIrellt billings are
paid in full prior to decision.
S. Therefore, APPUCANT agrees that in consider:atioo of the CITY's waiver of its tipt to collect
full fees prior to a detennination of application completeness, APPLICANT shall pay an initial deposit in the
amoumofS 620.00 wbiehisfoT hours of.Planning staff time, and if actual recorded cosrs
exeeed the initial deposit, APPLICANT sh.ll pay additi_' monthly billinil" TO CITY to ...imbnrse the CITY for the
procossing of the application mentioned above, includin8 post appr0V31 review. Such periodic payments shall be.
made wilhin 30 days of the billing dale, APPLICANT fiu:ther agrees thal failure to pay sucb accrued cosrs shall be
grounds for suspension of proceiSSing.
lly:
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CITY OF ASPEN
By=
. ADn Woods
Community J>cvelopment Di....tor
Date:
Mailiag Address:
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LAND USE ApPLICATION
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PROJECT:
l'lame: Lot 36, Maroon Creek Club
Location: 280 Pfister Drive As en CO 1 1 Lo M
(Indicate street address, lot & block number, legal description where appropriate)
ApPLICANT:
l'lame: Lot 36 Maroon Creek Club LLC'
Address: 1150 River Dr., Aspen, CO 81611
Phone #: '
REPRESENTATIVE:
l'lame: Michael Feigenbaum, Holland & Hart LLP
Address: 0 E. l1ain Sui e 1 A
Phone#: 925-3476
TYPE OF ApPLICATION: (please check all that apply):
D Conditional Use 0 Conceptual PUD 0 Conceptual Historic Devt.
D Special Review ~ Final PUD (& PUD Amendment) 0 Final Historic Development
D Design Review Appeal 0 Conceptual SPA 0 Minor Historic Devt.
D GMQS Allotment 0 Final SPA (& SPA Amendment) 0 Historic Demolition
D GMQS Exemption 0 Subdivision 0 Historic Designation
D ESA - 8040 Greenline, Stream 0 Subdivision Exemption (includes 0 Small Lodge Conversion!
Margin, Hallam Lake Bluff, condominiumization) Expansion
Mountain View Plane
D Lot Split 0 Temporary Use 0 Other:
D Lot Line Adjustment 0 TextlMap Amendment
EXISTING CONDITIONS: (description of existing buildings, uses, previous approvals, etc.)
Existing structure encroaches on 20' rear setback
PROPOSAL: (description of proposed buildings, uses, modifications, etc.)
Approval for temporary encroachment for life of existing structure,
Have you attached the fallowing?
IKI Pre-Application Conference Summary
EJ Attachment # I, Signed Fee Agreement
~ Response to Attachment #2, Dimensional Requirements Form
~ Response to Attachment #3, Minimum Submission Contents
[] Response to Attachment #4, Specific Submission Contents
IKI Response to Attachment #5, Review Standards for Your Application
FEES DUE: $ 620.00
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ATTACHMENT 2
DIMENSIONAL REQUIREMENTS FORM
Project:
Applicant:
Location:
Zone District:
Lot Size:
Lot Area:
Lot 36, Maroon Creek Club PUD
Lot 36 Maroon Creek Club LLC
280 Pfister Drive, Aspen, CO 81611
R-15
Approx. 15,000
(for the purposes of calculating Floor Area, Lot Area may be reduced for areas
within the high water mark, easements, and steep slopes. Please refer to the
definition of Lot Area in the Municipal Code.)
Commercial net leasable:
Number ofresidential units:
Number of bedrooms:
Existing:
Existing:
Existing:
Proposed:
Proposed:
Proposed:
Proposed % of demolition (Historic properties only):
DIMENSIONS:
Floor Area: Existing: Allowable: Proposed:
Principal bldg. height: Existing: Allowable: Proposed:
Access. bldg. height: Existing: Allowable: Proposed:
On-Site parking: Existing: Required: Proposed:
% Site coverage: Existing: Required: Proposed:
% Open Space: Existing: Required: Proposed:
Front Setback: Existing: Required: Proposed:
;< Rear Setback: Existing: Required: Proposed:
Combined FIR: Existing: Required: Proposed:
Side Setback: Existing: Required: Proposed:
Side Setback: Existing: Required: Proposed:
Combined Sides: Existing: Required: Proposed:
Existing non-conformities or encroachments: *
Variations requested: *
*see attached plat
FROM : CARMICH~L SURVEY ING r'j
PHONE NO. : 9709630757
~
Jan. 12 1999 04:50PM P1
'Et< H t B I -r F
TO:
DATE:
RE:
AFFIDAVIT OF CARL R. CARMICHAEL PLS, Ltd.
CITY OF ASPEN PLANNING DEPARTMENT
JANUARY 12, 1999
LOT 36, MAROON CREEK CLUB
cW
I was contracted to do start-to-finish survey work for three lots in the Maroon Creek Club
(Lois 27,35 and 36). Nonnal procedures for a surveyor in laying out a house designed by an
archilecture linn begin with a site plan produced by the architect. On that basis, the surveyor
relies on design work by an architect for the structure, and on design work by a structural
engineer for the foundation.
In the case of Lot 36, if one examines the site plan, it will be apparent that the house
barely fils within the building envelope, As shown On the site plan, the roof overhangs also fall
within the envelope. Therefore, I used three pOints to orient the house foundation as drawn on the
site plan. The dimensions th~tl used, as well as the pOints I used, are shown on the attached
mep (labeled "As-Built House"). You will note that the three dimensions that I used besed on the
foundation sketched on the site plan, and the house as constructed, fit those dimensions at those
three points.
The errors occurred as a result of the site plan being incorrectly scaled within the building
envelope. It eppeared there would be plenty of room along the westerly side of the lot where the
encroachments occurred; therefore, I did nol specifically check the westerly site plan foundation
scaling or the two house corners and two light wells to assure they were within the building
envelope,
It is not normally necessary for the surveyor to check every single calCUlation, detail, and
accuracy of work provided by others. I do carry certain responsibilities as a Professional Land
Surveyor to accurately and correctly stake the Specified foundation to the best of my knowleclge
and ability. Standard staking procedures involve marking the primary foundation corners, while
add-on details such as wing walls, light wells, retaining walls, column supports and interior
footings are left to the concrete contractor.
In this cese, it appears that a combInation of design work, scaling errors, and not double
checking each and every deteil, structural and architectural, for conformity to compliance with the
parameters ofthe building envelope, led to the situation that currently exists. I myself, had no
knOWledge the house encroached into the set backs until SChmueser, Gordon, Meyer had a
survey crew on site for unrelated work and during the course of that work they found the
encroachments. At that point, I was not informed by Steve Ehlers, the field survey coordinator for
SGM, of the encroachments which, as professional ethics require, I should have been. Instead,
the information was I'(3layed to my employer via a third party. At that time I personally checked the
information prOvided by SGM and found substantial agreement with their work. The results of my
Checking are shown on said map labeled "As-Built House."
Armed with the results of my survey checking the encroachments, I contacted Sara
Thomas at Community Development, Building, Planning and Zoning to infonn her of tile situation
and to seek the proper course of action to rectify the encroachment problem. At that point, I came
to the conclusion that legal advice and assistance was necessary. I infanned Richard Wax &
Associales of my conclusion and their attorney, Michael Feigenbaum, became involved in
reaChing a SOlution amendable to all parties.
I
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HOLLAND & HARTLLP
ATTORNEYS AT LAW
DENVER. ASPEN
BOULDER. COLORADO SPRINGS
DENVER TeCH CENTER
BILLINGS' BOISE
CHEYENNE' JACKSON HOLE
SALT LAKE CITY
600 EAST MAIN STREET
ASPEN, COLORADO 81611-1953
TELEPHONE (970) 925-3476
FACSIMILE (970) 925-9367
MICHAEL FEIGENBAUM
mfeigenbaum@hollandhart.com
January 12, 1999
VIA HAND DELIVERY
Mr. Chris Bendon
Community Development Department
130 South Galena Street
Aspen, Colorado 81611
Re: Application for Insubstantial PUD amendment for Lot 36,
Maroon Creek Club PUD. Citv of Aspen. Colorado
Dear Chris:
This application is for the following:
Code Section
Insubstantial PUD amendment
For Lot 36, Maroon Creek Club
26.84.080
Applicant:
Lot 36 Maroon Creek Club, LLC, a Colorado limited liability
company
BACKGROUND AND SUMMARY OF ISSUE
Tiehack Development Corporation is the owner and developer of Lot 36, The Maroon
Creek Club PUD, which has a street address of 280 Pfister Drive, Aspen, Colorado 81611.
The property is located adjacent to the Buttermilk Ski Area, as shown on the Vicinity Map,
attached hereto as Exhibit A. The property is approximately 15,000 square feet and is zoned
R-15, and is a legally created lot in the Maroon Creek Club PUD. The existing approvals for
the Property and Maroon Creek Club PUD are listed as Exception Nos. 9, 1\, 13, 14-17,20,
26,27,32,33 and 35 in the Title Policy described below.
As evidence of ownership, a Policy of Title Insurance issued by First American Title
Insurance Company, dated February 7, 1997, is attached hereto as Exhibit B. Pursuant to the
Operating Agreement dated June 15, 1998, the applicant, Lot 36 Maroon Creek Club, LLC, is
authorized to develop the property with a spec home. The Operating Agreement is attached
hereto as Exhibit C. The architect working on the development project is Gibson-Reno
Architects. The surveyor working on the project is Carl R. Carmichael PLS.
The R-15 zone district requires a 30 foot front setback and 20 foot side and rear
setbacks. The building envelope of the property is depicted on the Survey prepared by Carl
Carmichael on March 16, 1998, which is attached hereto as Exhibit D. I have also attached a
portion of the recorded PUD as Exhibit D-l, which also depicts the building envelope. The
f':
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HOLLAND & HART LLP .
ATTORNEYS AT LAW
Mr. Chris Bendon
January 12, 1999
Page 2
applicant commenced construction on the project in July, 1998, in accordance with generally
accepted industry standards. In December, 1991, the applicant was made aware that a
portion of structure encroached upon the rear setback at several locations. These
encroachments are depicted on the Survey prepared by Carl Carmichael dated January _,
1999, which is attached hereto as Exhibit E. An affidavit from Carl Carmichael describing
the circumstances which led to the encroachments is attached hereto as Exhibit F.
The applicant hereby requests approval of a Insubstantial PUD Amendment for Lot
36, the Maroon Creek Club PUD, to permit the encroachments depicted on Exhibit E for the
life of the existing structure. No other approvals or changes are requested.
CRITERIA FOR APPROVAL
The applicant has satisfied the criteria for the Insubstantial pun amendment, as
described in Section 26.84.080(A)(9) of the Code. In particular, on the direction of the
Aspen City Attorney's Office, the Insubstantial PUD Amendment requested herein shaH not
constitute a further variation of the project's approved dimensional standards because such
encroachments are deemed to be temporary and shall only be in effect during the life of the
existing structure.
SUPPORTING APPLICATION MATERIAL
The following supporting information is submitted to the Planning Office separately.
1. Owner's Consent
2. Copy of Pre-Application Summary
3. Agreement to Pay Form
Please call me with any questions you have relating to the application. Thank you for
your time and assistance in this matter.
Sincerely,
,;
~l4'<oL
Michael Feigenbaum
for Holland & Hart LLP
Enclosures
cc: Jeff Davis
ASPEN:0025755.01
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January 12, 1999
Mr. Chris Bendon
Community Development Department
130 South Galena Street
Aspen, Colorado 81611
Dear Mr. Bendon:
The undersigned hereby authorizes Michael Feigenbaum to act on behalf of Lot 36
Maroon Creek Club, LLC in connection with matters relating to the application for the
Insubstantial PUD Amendment for the property located at Lot 36, Maroon Creek Club
PUD, in Aspen, Colorado.
LOT 36 MAROON REEK CLUB, LLC
By:
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I ~ \. \\1\".:::',_ ,I',,, ,,-.., ..\T"!.'f"'/'Y(I .....""~ ~ \ /I ." .... ....,.;,,,\;,..1.
I. "\\, \ I' ~~ ", /..0 I ,-', .. . .,. ,'^, '
o :/:" ,'\~' '.I 1..> (. '~-,,- ' ..... "II "" ": ..,.,., "'."
, \ ~ \\-" ... 1\. 1',\ ~(I.~~Q~! 'I / ~.. .. ..\\{
"\ \. I'~' ~l[,- 'I . '..\, .\
I- \ '-"\ ) ,---....f,~?",.,~ \ \ \... ; ~ lJ() J;f,\ .--............'--....GOLF COURSE \'.'\:
"- I '~.I,'-~' \ /,..' , ~,: 1'1'\' '''' "', '.;'
~-.JI~ ?~I \/A-.,?\tL--'\\.~\ \.. \11// II ---., 1,\ 1/;. !A.A.., "\ --... '.'.
,.j //1(' - E:""'\\".;::\~\\'''' '~.J,', I; ),11'/' 'ii.f'?;;:' ".....,:'\ --- '\'
,~.~ _':'\. '-...: \~ ", . ,I. ( .1 ,.. .... l, ...\ \......
I,.'';~'''~ ~\ :'\ \ \ "'~ '(1.----. -I' ..! ", i' ,,"
~1/~1 L:' ~1':~'.$7%::7./;:;\~~1.}\\1\ '1\"""',1, ,; \ ui/ 'I/.Y '!J/\ ,~ . .~
~~I A':j ";d" ~ \ I!i . \ \'11\).1 \.. :/fi" /?-..... ..:./ \. ".<:> ','
,I ) i! /$"'--"1 I ,,/ \. '" \;" " ;' "'Ill II -../ -.", '~, '^
I, , . I /'0 ......' \ \W' \ \ 1\ ,II 11,' I ", ',0 t.
~\ \\., ,O~""'-7/' ,)' ~\\'b\ 1 i \'" \T\\ :!'i' l! /) \-,,'x'S- .--"'V,
~~~~ W ~Ll\+(~~\i~~),~lc, ~/)'jr.~f~
~ \ ''', __ ~..'\/"'" (,V' / \ ........" :.R 1\" ~tJ 1:1 \\ _/ ~. ........:,.;{.(.", ~--- \.
- _, \, '\ " . '1 II, .ur .'-~~' / ." ...
f, 11'/ ....... .. ~ ---= -------~--'.,' '\ .,
, ~ I ' , - ) \ I \. " oX I I IQ.? 00 ., ~ \ , ~\ .
I y~ ~ J.... ~v..\\ ~o: -.1.._\ ", /
\, \, 10. '\ '\-\. . 1\' ,) '0" <f:,'iI" ~,~, '--./
\'" If s~t:('}.. \\ \ ..... " ~.. \ W . \ ./.11 . '.' . I\.~'-\~
~']Wc'- ~) !!'!~,~<" \."'":\..~, '....:.~. ,'/f ;;"rw'Jl~', ,I, '\.~
~~U)/ll- '~~~:-:b2" --,' ::-\~~~\!I 1~'r uJ<fl~J..j, \/'. ~t1f -~'~~
-.... \ ~e~--.. ,~:sf, -..... ~~\1\1\\ 1.[ li~\~\. .;,.7'!" /\ --' '~-......... i~,.-.
~\ \ \ ~ ~(,~ \----.~::::::S::::;;>'.<; ~~ =:-\..' ~ J'I)' ~i~\\ I)) //'''; '1\" . / ~;"~t:~t~, o,j
~ ~~. '0:'~, :\ \1 I ti ;; II%( t I' ~..... .~f::\\\ /
~~~-~:?;<t:~~,'~~~jj~/~~/iP~f>~;;-~.,/. ~~;f~~~:00))1{i!
. s ;r-,~<::__.:~ '::::-::::-~.... ",rf;;7/,~/;; /1 (1'/~I4' C'.',.. '1('.../ ~'I 'Iii
~'~---:f o~,.~7f;-"'-.. ~.,::-:~ ,~)~~~ :/~,(I ,:/~~l. ~ 11. /-",' y. c~ 0J#,:
-Y~%- I'/j;, ~ ~'/ h}~ Y;;.' ... I:: /' "\>--;~~.!J." ~ - " ... 1\' I '//1
~fP~41ljli ~~~~J%
.~,~I.~,~_}Ji_,l
;:;/~~ ~/ /F) / j!/J ?f;<Zj:~)i:i$--::'h?'>~) \ ~ <'V~ /'t'f/;/:I/i!lr ~/:o/~~
~!~:JY<;~~rffr~ffi1f~~~3~\} t )!)J;lf/!/l, ij~~1Q:f'u:~:lJ;tft;;~8
tti2!.if?:(/"; yfg;?;~~~~:i?'~~~\,:" \ \) iij~~/y.Y'/(/I(/)?~rlf' J' 1\ 11'1/ f;ff~~~:;)'#l/(j;::
~fjf~ ' liftl' v"'/;:;;'~~f///.~..:::-"":::- ///'::;....-----.... "-~ II l(j'/li' ('~~'.' l '<a.J,1( {( -;;J.~I'lfr ;#1//...
~ ~"'~ 0'; ,I' -;:,;),~ ''''~lim,'' In IIi!' , ' ': , \}, "'t'((lld" <IIK'" 'X>
~ ~~~'tI~f:\!W~\~~\ Im,lliW ((I ,,\~ i !Ii ;~j~'f;\~~&')!
Eik(~fTA
~t:; I L ey _ CON80LIOATE!O HOLD I
r",
;::'10 O~4 0077,
8l:!!-l-2;)~ 14.::)4,
PCt~l:! 2
,- - -.;::::
""ill By; CONSOLIDATED HOLD;
310 034 0077;
S.fJ'2~ 14;55;
t""\
CHlER I S POLI(.'lC
sc::HmJLE A
~-der No. 404743 -0
Policy No. J 647274
Date of Policy: February 7, 1997
1. ~ of Inaured:
TIIlHIlO{ ~ ~TICN, a Colorado OOr:pot'$tion
Insurarx;e ~ $ 4,000,000.00
P.nlmi\JR\ i\iQ::>unt: $ 3,392. 50
at 3:22 FM
:<I. The es1:ate or J..te..:M l in the land 1iihf.cn ia ClCMlred by the polic:r ia:
FEE SD1PU;;
3. Title to the erJtatle or interest in the land ia ,,-_tal in:
TIIiW>a( ~ ~IQI, a O:llorado w..".......t:im
4. The land refw:rtJd to in this policy is located in the state of
~, Cbwty of PITKIN . and ia described all foJ.J.cws:
Lots 35, 36 an:! 39,
M/laXN OlE&< CUlB, ~ to the Plat ttereof filed l>bianber 15, 1993, in
Plat B:x:k 33 at Page 4.
/-"
I) (-. (,
k'1;-;;, ~~ "X 1~~
~'tlKe llUt:had.zeCl ott1oeir or ~
Th:J.s Fol.1cy is 1nvalid unleas the 00\I'et' sheet: an:I Scmdule B are at'tadled.
AUrA OWner's Pol.ic:y (10-17-92)
FIl<S'I' l'MiiRlCNl TITLE INSllRAN::E aH>ANl{
P<:IYI;l 3i9
l..I<efll Dy: CONGOLIDATCD IIOLD;:
~.
Ole 004 0877;
Cep.20w90 14:5e;
()
rctBe ";'/9
~Jt.1l'B
PAA'l' I
Order No. 404743 -0
~ No. J Mn74
'Ih1:i policy does not inaure aga1ns1: los8 Ol"" ':;"! (and the a:..-'.r' will nat pa:y
COlIt&, .U......-iS' f_ or e.4pilIllU) 'loi>,:/,.ch arl..., by z-.an of:
1. ~ or liIe'isO''ii'llents whid1 exe rot: shoNn as eK1St1tlg 11er1s by tile mocJII:ds of
am" 'tald.ng lSUth:lrlty that levies taxes or l:l6, : lle<'rt:s a1 real property or by
the p.Iblle records.
2. NIy factli. r.Ights, :In'te>:'esal. or claiDs ;;l;rlcn are rot: shown by t'h8 PJbllc records
wt \Ib.ich c:culd be asc:ertained by an :I.n5pection of said lard or by ~ :Ulquiry
of persons :In r----..-1on ttleAof.
3. Easemeuta, or claims of =~, or ero..t~...&:le6 wh:l.c:t1. are not shown by the
public ~<l.
4. Di~. CXlnf1icts :In Wmdaty Li.res, shcu.L.yo.> :In area, ~. or
8rrf ather facts lolhi.d'l a CXll:J.oOlC..t. sw:.vey wc:uld <"i ....,......... end wbic:h are not shown by
public ~Js.
5_ Any Uen, 01:' right to a lien, for servi<:le6, labor 01:' material theretofore
or I'-=eaftGr fu:misheCl. jn~ by law ~ n:rt: shown by the pnOli" L\9CUo.d.
6. Right of 'tte ~i.etor of 11 Ve1n or tcde to ....I....~-t and :rem:::rye his are the1:ef:rcm,
slUJld 'tte _ be f~ tQ paneri;ratB or jJ~-.;l. 'tte pran:ises rereby ~....oUld. as
:r:eserwd :In au tied States PatEnt :r:er::ordood J\Init 16. 1894, :In Bi::ok 55 at Page 4S,
August 16, 1906, in Eloc:k 55 at ?age 157, August 11, 1909, :In Eloc:k 55 at Page 173.
August 26, 1911, in l30ck 55 at Pa(;,Q 189, and August 26. 1911, 1n Bcx:k 55 at Page
191,
7. R4lht of ~ for ditches or canals o:;ns1;roCted by the euthcrity of tte lhi tad
States, as ~ in Ulitled Stataa PaU:at reo::.xQ;,d January 8. 1913. :In Book: 55 at
Page 2IJ7, Jawary 3, 1921, in l30ck 55 at Page 563, 1Ipr1l 17, 1923, in Book: 55 at
Pa(;,Q 571, IleoaIIber 22, 1928, in Seck 162 at Page 142. ~~It>e.. 13. 1934. in B::i:lk
162 at Page 400, 1\p:r1l 22, 1944, :In Book: 167 at Page 557, and !-by 20, 1953. :In Book:
180 at Page 155.
8. Eaaell~lo:.ta and rights of ~ for sId.ing, lllgX - , __. . d;l.tctlas, ~ an:!
utilities, and rtgh:ts to use pcrt1l::r.s of subject property all as :nilSlil%'Wd by
Aspen-R:lst Ca1pmy :In tile Deed to Art pfis't:8r, alkJa Arti1ur O. pfisber recxxded
January 6. 1975, in Bock 295 at Page :306.
9. lEoolution lb. 86-81 of tt'.e Eloerd of County 0:::Inll1ss:1cx of Pitldn County,
0;;l1~, :reoarded SeptaltleJ:' 4, 1986, :In Bcdc 518 at Pllge 198.
(ContinueO )
ALTA St:andard Polley. ~ Regicrl - Foz:m ro. 1402-C (FelT. 9/87)
FIRST AMERICAN TITLE IJiISlJRAII(:E 0J0lPl\NY
.....Coll D'1" 001~OOL1D":'TCO IIOLD,
010 000+ 007"7',
Dc~'eo.~o l~.OO,
A
,. j
1""'\
~J.U06 (oon1;:lnued) ortIer NO. 404743 -0
Pol1qy No.3 647274
10. Easement and dgh1: of way far the purpc 5 J'i Of lay.lng, lXl'l8trUct:1l1,
1Ilaintaining, ~ting, ~, al~, 1J~ling, %"plring.
l:'llIII:JV'ing and/or ctlang1ng the size of, <rIB or mxe p1.p;tl..inas far the
t......""pcIi taticn of gas, as g.i:41,ted by Artt1iur Pfister to I'lcdcy M::lunta1n
Na'tural Gas Div:i8:l.on of K N 13rlergy, In:::., a 1<rlnlIea o.:...,"otion, by
:1nst:rument ~dt.dAugust 23. 1990, in a:x:K 6Z7 4t Page 963.
11. Pesolutia1 No. 90-87, Pesolut:ion of the I308rd of County Cbmlissi.crers of
Pitk:1n 0Junty, Colorado, Grent:1rig' ~ of General ~ for
Subdiv1si.O'l, 1041 Envixol'mlntal ~ !leview, Soin1c Foniground Overlay
11ev:iew, Plar.r.ed unit DeveJ., ."obtll and ~ for the pfister Rard1/QJlf
Awlicatial, z..oa..do.J Se{)la\ber 13, 1990, .in &xk 629 at p"ge 471.
12. ~'leo'" and r.1ght of way far the purpose of lay.I,ng, CXlI1Bt:r'uc:t:,
1lll'l.1nt:a1n1, ~, ~, al~, inupec:ting, :r'\Vl.-i"q,
~, and/or ~ the odz;e of, <;Xle gr ugre pfp>li'1elO fOf: the
transportation of g<IS, as !:/L....t...:] by l"r.1e;ll Pfeifer: W 1'b;Xy Pb.lntain
Natural Gas Divisic:n of K N &lergy, In::., a Ransas VYI........"tioo by
.:lns't:ruIlent ~ Ck:tl:lbar 3, 1990, in Bcxlk 631 at Page 29.
13. Resolut.1.Cl'l No. 91-111, Resolution of the Bca:rd of Cwnty ~ of
P:l:t:Idn Coonty, Colorado, Grant::l.ng "l;{JroYal of I)e'h> 11 eel SUl:lnd..ssia1 far
Subdiv:l.s:l.cn, 1041 Envi.rl:nnental Hazard Awiew, Scenic ~ Overlay
fleY':l.ew. Pl.arn3d tk1i t Devel.crple'rt:, RBzcn1r:g, ~1 "11 Rev:l.ew Apprc:f.ral far
lel.ocat.1.Cl'l of the IQ300 Radio Tower. tat I.1ne Adj"",t..6'tt wi't:h the mJ
Pl:<JperI:y, Ger1eral and Ile't:a1lect Subn:l..ss:I.a1 to the "Grand "'_d...nt" Fcrt:1.cn
of the Appl i""tion and "'-..t.Sht to the Eu't't:mm1lk SId. Area Master Plan far
the Pfister Rat'dl/Golf ~, :teool.a..d Sepb!!Ilmr 23, 1991, in I3Cd<
657 at P!l'JB 306.
14. Pesolutial No. 91-112 of the J3oe.nj of Co.lnty Canniss:icna:rs of Pitkin
County, Colorado, A..""dlleot,t to Reaol.ut1cln ti;). 91-111, recrirded Sepb!!Ilmr
23, 1991, in &xk 657 at Page 384.
15. Pesoluticn ti;). 93-120 of the Bol!I:rd Of County a:-dss:i<:n!!r$ Of Pitk:1n
Clcunty, Colarado, :toco.c:ded July 28, 1993, .in a:x:K 719 at P8ge 506.
16. Pesoluticn No. 93-104, l<<iscJ.uticn of the EloBrd Of Oalnty ~ Of
Pi i:kin County, CbJ.oreidc Grllntl.r.g F1nal plat Apprc:f.ral for Ma:l:oc.. Creek Club
x.........dt:d 1Iugust 4, 1993, 1n a:x:K nl at Page 245.
17 - Subdivisic:rl ~ J\Q~lf,."t for M9xtx:ri Creek Club x..........do.J ~
12, 1993, 1n BooIc '730 at Page 606.
(Caltinued)
FIR:."T AMliRIC1IN TITLE :IJI&JRI\lIl:E <XM'AN'l
rO\;;jC ::'/8
~~I:L By; CuN6uLIOATEO HuLO;
';'10 0.34 0077;
6~p.Z~ r~;~7;
1"""\
~nU'lS (c:x:nt1I:uld) ClrciI!Ir No. 404743 -0
Pol1c:y No. J 647274
18_ 'l'atms. pt'C'I/1.s1a'ls an:1 o::nllt::l.aw of '1'ta1l F.asement ",,,__"t ~.:Ie(I
~ 12, 1993, in BCd< 730 at Page 648.
19, fleo<:llcetion ~_....t for IQlds :J:lilCOL1lod ~ 12, 1993, in lb:k 730 at
Peoge 662 ond ~t an:1 ~ of 'I'Ilott1<::etion ~__.t for Reads
r........dbd February 17, 1994, inElock 742 at Pege 135.
20. SUbd1.vis1c:n II1pro\IEments ~t ~ ~ 12, 1993, in B::d< 7'30
at Pegs 606.
21. Texms, provisi<:rls an:1 a:niit:l.oos of Avigat:l.cn F.8sete1t ~&.ld JIb\IaJt:er
12, 1993, in B:xil; 730 at Page 690.
22. Water SeI:v1oe AQ.;.....n....t be~ the City of Aspen, ~, it IIUl'licipal
CWl"-'L"tia1 and a haae rule city, ""'11 ..... EQu1tl.elil,~ II IJmited
LiAh1Hty (b,~.1', to Ut::eh l.1m1.ted liAbility o..'y:..qf, Arthur O. pfister,
~1 hAhath H. pf:J..ster, sm> ~ -i.-......:s Trust am Q;lp ~ 'l'rust, a
Colorado TL1JSt IeOOtded ~ 15, 1993, in Bock 730 at Page ?<n.
23. Ditch Jl.,j.........,.l1; for Willcw Ditch frcm ~..... Equ1.tiE Gro.Ip II L1.mited
~ to ttle Walter P. ~. t<:e Life Insuranca TnIst :::ecmdal rbIalt:er 15,
1993, in BCd< ?30 at Page 868.
24. Easement l\grea1>:ant for W1l.I.ow Oi tc:l'l frail F.riedl Pfeifer Aspen. Real Estate
I~ Tzus1: N\.mber 1 to Walter P. Peepdce Life Insurance Trust:
:.:~..Jed .No<1unbe:r 15, 1993, in BCd< 730 at 'Alga 902.
25. Restr.1.ct:I.a1, which 00 not: contain a forfeiture or reverter (',"',,_, as
oant:ained in inst:rurent rooocd.oll N:.vali:Ie:r: 15, 1993, :In adc 731 at Pages
105 ard 125 as ~ by :lnstrunent X8.Xl%'ded July 26, 1994, :In lb:k 756 at
Page 597.
26. F.aseIlenta, :reservaticns ard rest:rict::1c:n set :forth en Final Sul:xU.vision
Plat and RJD for Maxoo" Cnlek Club ~ NcMlntler 15, 1993, in Plat Book
33 at Pege 4, and Mem:lh 31, 1994, :In Plat Bcclk 34 at: FI:lge 23.
27. Reaol.ut:.icrl No. P2-93-20 of the Pl.arnlr:g and ZtnI.rg 0:mnies:La1 of Pitkin
County, O::ll.oredo, ~ NoI/aJtleJ:' 15, 1993, in Bool< 731 at Page 451.
28. ~.....e:lt beti.'een Peaxoa EQuities Gro.Ip II L:lmited q"'hility Coip:lny, a
1Jtah Limited 1ilWility ~ and Aspen Skiing O:Jq;leny, a 0'llara00 general
par1;nersh1p, reccrded Noo.>ert>er 16, 1993, in Book 731 at Pege 472.
( Cc:ntinlJed)
FIRST AMI!1UCAN TITU: I.NSl:.JRI\I'CE CX)IJP}.N1/'
Page 0)/8
G~!,l 9'1; CONOOLIOATCD 110LO;
.J.le. 004 0077;
Oep.20~ 14;~Oi
. (' .'~"
t"'.,
ElIICII:P1'IONS (c:xxrt:iruild) ~ No. 404743 -<>
Pallc:y No.J 647274
29. restdcticnil. 'Which do r10t cxnt:ain a fcr'feiture or reIIerter ..,1"'...... as
a;lIlta1..rY:ld in :.!.nstI:ul'Ent :z:eoo.:dec1 Oeoao.a.,; 2, 1993, in Et:d( 733 at 1'llge 598
as llIlSlded by ~ reoo.:&..d Februaxy 17, 1994. in Et:d( 742 at Page
83, Jur:e 8. 1994, in Et:d( 752 at Page 754, July 26, 1994, in Et:d( 756 at
~ 597 and ~Le.ltle.c 12, 1996, at ~ No. 396947.
lOrE: ~ and Des1gnat:!.cn of $I.. : ). Decl.a:z:ant far Marcx;n CI:eek
Club reccu:ded May 11, 1994, in Et:d( 750 at Page 242.
30. ~ Easaoant 1\grealEnt: be'tIoieen Camu1ity Health~, Inc" a
ColOlCllW nc;n-prof1t ~..t:!.cn arl1 Pearoe ~ties Gl:QJp II LiJIlited
!.bhfHty~. a Utah limi'tled H..nilfty CDIpllI'ly :l..........do.J NcMiatler 12.
1993. 1:1 Eook 730 at Page 714.
31. Me.l1O.:a.dD of Cpticln betl een Gl:~i' N. 'l'romas, 'lMDIls J. Hof.6llwiot>>r,
Kenneth D. l'lenl$t...1n and fobL"", Creek Limited r.i.,ollfty Q:l.l~i', a O:ll.o:rlldo
l1ln1ted l1abil.ity ~ re::o.:..:lold ~ 23, 1994. in Book: 767 at Page
851-
32. ~utial. l\b. P2-95-01 of the Pitkin CbJnty Pl..anni11g am Zcn1ng Cannissicn
t'eca.:dec1 March 13. 1995, in Book: 776 at Page 42 am re-~ded March 24,
1995, 1:1 Eook 7'77 at Page 69.
33. Reao1utio-. l\b. 95-129 Pitkin <bJnty I3r::>=:1 of Ocunty ~ ~
August 29, 1995, in Eook 791 at Page 821.
34. Ass1gment of Reed Maintl3ollnoe Agt_I....t.. ~ ~t..:.,""" 3, 1996, at
Reoept:i.cn l\b. 396644.
35, Insubstantial P.U.O. .Amen::'lnent ~Ja:,J Deo&.t- 19. 1996, at lEc;eptial No.
400129.
36. Arw loss or damage resulting f:r;an the failure to prov:idQ the ~ or 1 ts
a,..thx:l.ZEld agGnt ev:I.den:>e that all dues 1BIrId/= n~ ..,:uta l.aIIisd by the
~ "~i Rt:icn ha>ve been paid.
F1l1S'I' l\MSRICJ\N TITLE DSURA."l:E CXMPAN1/'
r'id<.:-jC 7/9
\Jt:!1l L oy; l.UI'4~UL1U,lJ" Il:U MULU;
~
u I 0 OU,," UOI I j
~ef.l~~"j~ t'l-:':J~;
{' Ii
,
EXCLUSIONS FROM COVERAGE
t"'dye O/~
The following mettm .m expressly excluded from me covera~e ot Illls ~cy and the Company w~l not pay loss Of damage, costs, attorneys' le.s oro.<p8llses wNoh
arise oy "",son of: "
1. (a/ Any law. ordinance or governmlllllal regulation ('moluding but not limited 10 bUilding and ronilllllaws. ordinances, or regulations) resllictillg. regulatin" prohliJlllng
or relating to (i) the ocollllan<:y. use, or oolOyment of the land; 61) 1I1e character. dimensions or location of any ImPlllvement now or hereaner &rected on 111€
land; (ii) a separadMln owoersl1in or a cll8noe In the dim8llsicrls or al1a of tile land or any patcel of wl1ich lite land is or was a part or (iv) environmental
Pllltection, or me effect of any viola1ioll of 1I1€se laws, ordinance~ or ~l)Vemmental regula1ions. except to !he extent lhat a me ot tlle enforcement tMiecl
or a notice 01 a defect, lian or encumbranca resulting from a violation or alleged violation affacting ma /and na~ betn reconled In lite public I1lCllrds at Date
01 Policy.
(bl Any governmental poice power not e>CCluded by (a/ above, el<Cept 10 lIle extent that a notice of 111€ exercise ,lI1ereof or a notice of a demet, lien or ercumOrance
resulting .from a viOIN or alleged violelion alt8cting II1e land has belIn recorded in tile public records at Date 01 Poticy.
2. Rights of eminent domain unless ,llOlIce of 111€ exercise thereof ha.s bee1'I rec:orlled In tha public records at Dall! of Policy. but lUll "'"''''ding tram coveraoe an,
laking wniCh has oc:curred prior 10 Datil of Policy wIlich would be biriding On 1118 r1gl11s 01 a purchaser tor value WflIlOIll ~nowledge.
3. Detects, liens, encumbrances. adverlt claims or other matters:
(al created. 8IJ1te.-eG, assumed or agreed to by thalnsured claimant;
(b) nat known to the CO/TIIl3ny, not recorded in the public I\lcord~ at Date ot Policy, but Itnown to the insured claimant and not disclosed in wriling to l\1e ComlNoy
~y tile InSlIred claimant prtor to tile dale ll1e Insured claimant became an insured under 11118 poDcy;
(c) resulting in 110 loss or damage to the insured daimant;
(d) attacl1ing or created subsequent to Dale of Polley; or
(a) resulting In lOSS or damage wnich weuld not have been sustair.ed if Ute in~ured c1almanll1ad paid value lor the estale or interest insured by tlllS polIO\'.
4. Any claim, which anS\!s 0tJl of the lransaction vesting In the InsUI1ld the est.lls or In\erest Il18ured by lhls policy, by reason of the operalio. of fsderal oani<ruotL"Y.
stale Insolviwl. or Similar credilors' rfQl1ls Jaws, thaI is bised on:
Ol 1113 transaclkln creatln~ the em or lIItereSllnsured py tills polley being deemed a fraudulent conveyance or fraudulent transfer: or
(ii) th8 lJansllC1ion creating lite eslate or Interest insured by this policy boing deemed a pretel'8ntial transfer except \\TIere Il1e preferetl\ial transfer !1lSUIrs !reClIne
failure:
(a) to Ume~ record the Instrument of 1nln5ler. or
(b) of such recof1lation to impart notico to a purchaser tor value or e judgment or lien credHor.
. CONDITIONS AND STIPULATIONS
1. PEfINITION Of nRMll.
The kJUowlng terms w."I<<1 uS(jd In lhls poUcy mean:
fa) ~in$ijred\l: l:tleitlsured na.1'Ied In Seh<<lule A, and,
""'joel :0 any n~h1s or _... 1he Company wukl hlllle
had 80lIinst the rBmed insured, tho$e who succeed to the
"'-I of the natnll<l Insu..~ oy opora~on of law ..
oi$tIflijulollOd tulm IN"'.... In',"dlng, but not Iimrte~ to.
heirs, dlsfrlbuttes, devisees, survtvoni, personal repllsenta~
-. I1OX1 of I<In. or C<>!por;\f ()f fiduciary sme$$Crs.
(Il) "Insured clailnal\l": an i...."o ,I"mng "'6& 01
damaue
(G) '1lnowted9t'"' Of "knownM: actual knowlll'dge, not
Coostlu<:tiv& MowI"ge or no~ce MllclI m,y be I"'pllled 10
an InsUlld by rwon of the putiIic..._ '" _ In Ill!.
poIi(y or any other "",onl_ wf1~ti mpllt con_v. notic.
oIl1l11ttft:\_ti1g1heland.
(oj ~atlIt: ttle land ~..cnbed or """''"" to in
Sohodul. (II), Illl<1 IIn,,,,,,,,m,,,,," _1hef8lO which by law
c_ "al orowtY, 111. \elm .~.. d08$ notinc,".. any
IlfOpart, b,yond the Hnes 01111. arte IlflSaIbed or _
to in Scnoo1uie (iI). nor any nqilt. 111Io, IRlere8I, _ or
_" _ng _ ""lIS, 1lV<II1lJ", ~', two.
ways or wat.....oys. but noltrinr.l """in $tlaJI.modlfy or limn
the llClentlO wI1Ieha riQhl of access to alld from ttle land Is
I_bytll:spollcy.
(eJ ''m<rtgage': mOrlgaga. <Io'd oIlfijil, trust dooO.
Of' other securtty Il15trtJment .
m .pub!l(; reccros~: recOfds eslahl~d IHlder state
__ at o.t. of Poloy tor tho _ of imparting
COlISIlum. noli.. 01 metbrs ~ to real properly I.
IJ\U'Ch._ for vatu. .11<1 \MIlIOOl _ga. WIlIl rt8pO(\ to
Secuon 1 (aHIv) of 1Ile i'J<ClusiOlU Fr'om Coveraoe. "",,0110
re,,,,,,,;, alWlaIM 010u0. envitoncnenlalpr_ Uw filed
In tne recQrd, 01 1M clerk of the United States diS11ict court
10< ", <lime! in ""'oli tile hind Is Iocaled.
(01 "tlnm_1iIy III tne ti!le": an ail~ed or
_m.r..r_ngll1l:UUelO:tIOlalId,llOt_or
_ ~orn c..".go, wI1lch _Ie _ a p""'Ii...r of
lh& <<State (y, tltetest 48tC1ibed in St.h8dule A to tie released
from lIlc oOligatlOllIO purcllUe by virtu< of . ,ontraeWal
__gll1edlllJ....,IIImat1<o1l1bt.1IIfo.
t. COlI11NUlnoN OF 1IiWIWlC! AFmI
COIiYfYAHCE lll' 1lTLE.
The coverage of thi:i j)Oky stlan Cgrtinue in force as
ill Oate 01 Pok<y In laver III .., In.o,," only .. !ontl as 111.
Insured rttaiM an e3ta1. Of inlerest,ln IlHl ~ or h(lIds ,n
indooteane.. aecure<illl\l\l\:lli<<ll'" "'~~~'aiven
L66~/W90 : €Ilea
by d1io pOlWy WhICh CM!tlfut.. tI1Il>..'a of Ioso Of damage
.nd..Oil >tot'.la1heextOlll ""oslbIt. d10 basis oI<:ak:oilltlnG
lt1e amount of lt1e los. or damago. << lt1e Company I'
oni_d Ir/Itleloilufl.f IlHl in.URd oJaimon! 10 provioellHl
f6lJtJired Pf()of of lo~ ()r dam~. the Companys obligations
10 ttle InSUf1:c ~nder'lhe PQllcy sh.lU twminate, including ~
iabiily or obIigal!on to 1le1end, ....ecute. or eonUnue ,"y
titlga\ion. \MIll "Ianll' th. mll!tlrr or rnaIter$ ~uirinl .uCli
_lor lOSS or llarnaoe.
In lllcI~en, 1he k1sultlO cl~manl mar reasonably be
requiffld to submit to examilladon lJrldet oath by any
auIt1anllld repn..nt:itl.. 0I1he ComllOflY an<l .1101I procIuce
lor ...."I.ation, Inspe<tJon OI1d copying. at suM roasonablo
times anC pI.o.. .. mey be deaionetod tiy an, oudlolize<l
ropmanlaU" elll1ll Compony, all roeonls, ball... !rlIIgor;,
check$., CORilSJXIndenC8 and mttmOr'ar'Ida whether beanno a
date be!ore or after Date 01 Polloy, wI1leh ....onallly pertain
to lt~108> ord.mage. Funhet,<< requested 01 enY_1Id
reprooentallvo of lh8 Company, '" 1_ c~Imlll1l ohoil
grom it> "",_on, i. wriiing. lor any 1<llI1ortle<11'1ll'
I1lSOIlfaIlVll 0I11Hl Company to _.Io"",ct "'" copy all
",co~ books, 101I<,)..., ohm. CM8$ponlienc. and memo
ot>l1Ilaln1heOUSfOIlYOlCMlnllotall1lr<lparty,wIlicl1
~ pertain to ttl, 10.. or demoge. All illfOr1l18llon
deolgnated as 'Mtidential by 1IHl1n,ure<! claimant 1lfO~""
to 1110 COl1tllarlY llW'Suant to d1io SecIion sliel nor b.
d1sclosedto lll11ers unlass, '.1110 re_!udgment of tho
Company, it ~ net:elsary in the administration of the claim,
Failllft of th. Insured claimant to ..bmll 10< .""",lnaUOll
under oath. JlftldLu::1J OM 11I~ request!d infert'nlfJOl'I
or orant penns.lor. to sllCUre reasonably IlIooa&al}' inlorma-
Uon frOm IIIIttl pal"j,. as l<<IuiretJ iIlll1l! ~ unless
prohlblta<l by law or OO\'8IlIIlMmaI ragula1lon, sll.U lem>1n'!Il
lIlY II.bility or 111. Company uOO..1II1. poiey.. to that claim.
a. Of'IlGHS ro PAY OR OTHERWfSli Sli1'1U CI.AIMS:
__nON OF LlABIUlY.
In case of, "liIn unclet 1II1allOiley, ll18 Company aI1al
have Il10 following ad~UMaI options:
il) .. Pay or r'nder Poyment Il1 II1e Amount of
In~e.
To oav {If tCndl)fpayn1On1 nt V'le amount otlnsu.rance
UIlOlr 1llII poley \lJgetf1ef wiltIlIlY caola, aIblmeyS' teet MIl
eJqleIIS6S i_ by lt1e lniufod cIaImont. wtJIch .....
auII10riled by 1110 Company, up :0 1llO CItlO at paymant or
tendoi' at pay'''''''; Md _", __ is olIIil/llled III
pay:
Upon u. JlCiSll tiy ttlt.:o,"""ny 01 1111. opUoo, tiI
llob!ify iIIl\l.9b<.= ~.suredu_d1iopolicy, atiler
ff'IIII11~lmmf~'~~~:I~~~!
for any loGs or damaoe caased ther'eby.
(bi In tfIe tvent of any litigaton. including litiw:iticn
the ComPany or wl1h 1tt1,! Company; c.oount, 'tfle Comva
shall haV! no liability for iuSS Of damage iJflti, 1ner! nas ee
a final detetrnin.ttlon DY a court of comp#~n1 jutisQICU<
and dlop..ilIon of ulI appe.I, tlorefrom, ad_e to 111, ,
Hinsured.
10) rile CllI1IpIln, ."'1' not be liable !or ios;
damag. to any InsUltlOtol "at~AyvolUl1l,"1y usumod bf \
inSUre<! " .iltiing ooY claim or solt wtmoot the prior writ
consant 01 tlte C<lmpany.
10. RfPUC110H OF INSURANCE, RalUCTlON OR
TERMjIiATlON OF I1I8IUTY.
All payments uM8rtM pobcv. except payments na
for com, .at\ctneys' fee, and _o$s, sllall radllGe I
omourl of the IllSUIaIlCo pro Iontc.
11, LIAlIUTY HOHCUMUUTI\IE.
It i. Illlpreuly UIldersIood that II1e Am"",,, of
SI./tII1Ql.n<lerthl. ""tiey sIlIiI be_ /)y any arnouflt I
Company IIlty pay uIlIfar lilY poIlcy Insunng a mortoalJ<
which ..ceptJoo is _ in Sel1odu~ B or III _ I
Insured has aOl1llld. _, 011aJc", $Ubioct. or wtlict
Ilersafter_d /)y onin&Jn!d IIldv.llloh Is ac!larll.
Iierl on "'" estato 01 ln18rast ducobod or """,reo :0
Scbe<llllo A, ond 1he ._ so pal, sna~ b. d.""",
paymonr undoIlhis policy to ~ inOUle~ owner.
12. PAYalENT OF LOllS.
(e) NO pa\'lllllnt s~al! De made wili10lJl p<ooucln. (
poUey '''' ._en! of the pa~'I1\ent unl... It.. poliCy'
De.n Io,t or destroYid, i. v.Ioch CISO proot of 105>
desttucUOII _hall be fumi,l1od to 'he salis1a<:lion 0' ,
Cotl'l>any.
(b) WIlIln IIablI1ll' and 1I1.<XllllltorlQssordan1aQo'
been dellnillIly r.... in ..canlan.. wI:t 111... C_,
Sdputadons, Ill, Ins_ Of dImage.".II De payallle Wlt/';in
days lhOreefts'
13. ~lIf'OIII\\l'MEllT
Oft RmlIlfNl'.
(ll The c:.ompao,.. AigbI,' SWoQ....'t.
Whanever 1he Col1Ipeny shC1U haye settl-ad lUld pai,
"aim lJr.det ~ INlllcy. ail ~"t at subfogatiolt &hali lies'
the CO/l'Il.ny ...n_ Or '11\1 let IIIltle lnillf>li claim.
lhe Company shatl te si,;broqated to and bfJ: intfl:1ad hI
6t::ill By. CON.50LIDATEO HOLD,
~ tiy!h. In.r,VeI.1 in any tf'M\.~~ rt r.~V~c.l nl ~
, ,,, in1a..~. Thii :>olley ohaP IlOl """"'" '" m. '"
of Ilf'{ ptJrt""', from the insuroo of .II/lw (i) an ..tat.
..." in 1'\, lend or (U) an irlololbl8dn... ..cur04 by a
lase ifloney mortgage given 10 ttle Insured.
NO'IIC. OF Cl.AlJjj TO IE QlYOIIY
INSURED ~.
TtId in~".. sIlaiI 1IOlIf)' !tie Comt>eny prllfrlptiy in
Ig Ii) ~ .... at any liIlgaliOll a. so( ""111 In S4l.'Iion 4(a)
'I, (iij 11'1 caw knowledge shaK come to &n . iIlwted
Hldef 01 ""y 'Ioim at 1It1ll0r 1111""" whlcllls adY..... to
tte to the =* Cl interest, as li'lSured, and wtIiel'l might
. "'55 or damage lor wtdoh the Company may be iaOle
rtue v1 this policy, Of (:ii} ft tJtj& to the estate or Ir'rterest.
,""",, is re;.OlOda. UM'olI1<elabIo, DllfomptllOrt<.ol1aII
. i".nw 111. Company, 11180 ,,'otheinourod OIl 'aIlilily
. company shall termlnlte with rogatd to 1110 rmtIor or
ifi: for which pcompt nolle! is (eqWre4: pmlde:d.
N", that tail." tonollf)' the C""""ny ohaIl" no cas.
dlc.e tha righls of af')' insured under It'li~ pallcy unkisS
:ompanv sha:1 be prejudiced by the (.,lure an~ II". ",Iy
. _ or lI1e P'tiudiOe.
oa~i AHD PMoatCUTION OF ACTlOIlS:
DUTY OF IHS1lRED c:l.AlIWIT.TO COOf'liMn.
(aj Upon W11llen reqmt by the ~ll'\t SUOjeet 10
lilll."" contained In Secbon 6 of _ Cond~... and
ilatIo"", 1Il<l CompanY. at ill own Cilst and _
"'"1i01e d~lIl', .naIl ;'>IOV~' lor the dalenae of an
'ed :" IIUg.1l<lIl ;., whloh any lI1ild party .....,"1$ a claim
""10 1M llIl. Of Ime""..insurO<l, illlt ""~ ,'101l1..e
'<l cau~ c1 aclloo a11eglnq is defect. Jilm Of en-
braSlce 01 othef matttf' inwred agaMst Dy \his polley. lh8
p;;.'rI sh.b ilave Itle ngllt 10 select CDU"~ of Its onol.o
iect to m. nQhI of thelnsumd to oojeet ler _Ie
ie) torepr~MOt the ifl3ared lt$ ro tlose Stalacl eau&$S of
'n ~'d 0IliII not IlO 6.llllelor '.1d wtl not pay 1Il<l I... of
OlMr COU""'. The C3I1l1lG-1I' wil not pay any fees, COSIs
tpens,es inciJrrei;l by tf'le ln$urailln <j)} tkrtflnso of ttlOSlJ
ies oj il<t<ln which ~10\l< matlel$ not;~ agalllSt by
policy.
(b) The Company sIl,lI have 111. nOm. lit Its 0I\1l C<)S~
stH:ute and Pl'osecute any action Of ~ing or to do
oIt1.r eet WhlCI1 in ~, O\linlon may be """~. or
ratl>> TO e5tatlli&n the ttt\tiJ to tfl, ei'tab) 0" interest, as
red, ur to pmenl elf .eduCe loss 01' damage to the
rod. 1'1\. Company maytJloI "'YaPllropn.to oction UfldeT
telm, .'thi3 policy. _... .rnot n shall be UallI.
undo.: ana shall not l!lereby eOl1CI'l. 118b111ly or waive
prOVi,ron at IIIIS POllOj. U 111. Compant .hall 0X0f1:i$' n.
:s I.<noer tt1J;paraorlPh, it :shllU do SQ diligently.
(cJ When.." lh. Company oIl.11 hove bl'Olll11t in
)l1 01 ilillrposed I ""_as tequiredor ,ermI1t.d bylt1.
isions 01 IhIs polev, lll. Company may pursut any
lticn to final ""'erminallon by . e....l 01 Cilmpelol11
<lIc:ton and _olr __ Ulo right in ill .olll
_n, 1tl ~peol fro,,, any adven. judgmore Of oreer.
(([/ In all e.... _ II1is poley r>em>llS, Co' ....
Co"",,,y to pro..eut. OIllf01'lOtforthe <lelenst of any
on or proceedlnil, 1lle ~llrted shall Se"re to the
,.any 1118 n\ll1tlll '0 prosowte 01 erev"'" <lei"". in the
'" or pro......g, Ind aU """'"' tho...,. and permn 1M
lpany fO' USi, al il$ ~Jon, the r\imloI theiOSlJfed fortflis
10". WhOneV1Ol' relllJl!$led by 1M CilmIla1Y, the in_d,
he CompiI1y's "Il'""', ohaJJ giv. tho Co""",,~, all
:Qfl4/)je aid {i) ill in)' acnott Of pf'OCe<<1lnlJ, secunng
'ence, obtaining witnelssas. proS4Cutlng Of defending Itlv
'" or proc*OdlnC. (J( etftcling dement and (i~ in any
.1..... aot..l1icli ill ura opinion r:f I!le Companymc/ bo
"'''VOl "'_loCSl.lJlliahthelitle101lle_or
1"'1.. ."..od."tho ComPMY 1& PIf)udlced by 1M Iail."
~, ,,,,"red 10 f\JITUsh 1tIe lequinld ..opvaljon. ll1e
lpanV'> oOdi)illion, 10 1M in''''d under lI1t policy .haJI
lln.... Ineluo;.lQ lilt lablJiIy Of obllQaUon 10 dofe04,
'""Ule. or COillinuoa,y Jiljgiillcn, lViIIll8gatd 101h,,1lI1tef
t'I.W" requiMg such O\lOIl&lliion,
ProoF OF LOS$ IlflIlANAGE.
In ~ffloo to iind atbu the rIQUe.., fiQiJil'fJd !,lOOt/'
tiOr. 3 of tI'ltse CondlbCltls and Stlputations l1a'iC be,,"
1~0lI JIm C_, a proal 01 "'" or illImage Sill'lOdand
U"n :u ~ u. itlSUAJld lOliirnant lihai !HI fumlsbed to !he
n~any WlltUn gO dolyt ,fta-' It,. jnsunld tliimam IhaII
.naJn 1'>. 1a0lS gMlIg M. 10 In. Io<.s or daMage The
" 01 loas or _g. SllaI! oesctlbe Ille delOelln, or lI.n
ll~.:umbran;:e 00 me Utle, Ot oltlfl malt.. i03Ufild ag,tinst
3100340077, 8t!p-23-90 lj.OO, Pd8~ 919
rl'~IJIUll.oo"I"'_!llIlt.., .. 1'l~~VIlOlDflenISSU8G.lfl'8QU9$1.aOVINIl;~.
'..1 Ib) roPav6tOtheIv.l..~t:tlIewi1hPort"'s_rll1an b ""C!ai",",~$halllrlll>olot"'IheC."'lllll\'lllli1l>'ia
. IlSUmd 01 Wi\IIllla I...... Clalmal1l, an <<fie, again" ..~ _ '" prGperti ne",,,..1y III
(ii to Pil\I (J( 0ll18/Wl$J SilIIe willi Olher PlllleS lor oroo. III JlIrlact Illil rIQht of SLIlfoQaIion. Tho _
or III 1M nallll.oI .. In,_ c~imant lilt Clatm insumd cl'imant shell pmnIlll10 Company '" sue, COInflro",,", '"
agalnat under 11,," poIil:Y.l<illlllher Wltl1 lilt ,..to, ettomev.' "!Ilelnllle ntmeoflt1e.....l14eIalMantandlO...lI1.name
,... IIlld _.. lno''''1II by lha """'eel claimall which af Ihe IrJlUtGCl Clatma/lt 100 any lninsecIlorI or litJgaIicl1
-~lI>oriledbytl1.~ah'/UP"'lI1otimtOfpa~ irlvoMl1g_~ocOlCll8<li<<;.
and wfli<I1111t Compal1y IS obllgoted '0 pay: or II allayment on........ Of. claim d...llOllul.y......
(SltoPil\lorll1ll.rwl" ..l1Ie..ilIIllle "_ 1helosoofthelne__ the ~"'''':.e
e;~millllll1t 10.. .r damage plO'lideo lor "'dw ilII$ poUot. ~ to l/ltit lights IIlld r.m..iu ilIllla pl'\lllor1Ion
togetl1.r WillI any '0016. attornevS' """ and __ whlcll the Company. payment _ 10 lJI.1OtlO1o amount
l"'U1re~btlheill""ade~wl1IchweNlautto>1"dbYll1a af It\e loss
COflijany ill> 10 III. ime 01 poymelll ond which tht Company " 10;' ,^,,"Id re'''"!Tom lIlY .ct of :tie, 1nsur04
" oOllgallld '" pay. . CJaIInan~ as lllal8C .bOve. tnat act "'"'I no! ",Id thu policy,
Upon llla......so by tho Ccmpony Of,.lllr<rr ot Ul. b<rtlllaCOfllP&'lY inlllatw,nl._b.raqumtop,lY O!lly
oc1l<lllS /IIllVidad lot In pa'OOf8(l11S (b)(I) or (Ill, the Com- that part 01 any ""... in...-ed ag3l1ol by ll1Is poIc:t whlcl1
pany, obllga1lone 11> l!le """ed lll1,er ~s po.iey 10( tho _ .....d 1I>e amotIIlt, r ..y, !oat 10 !lit Company by
C1eU'llelllOSs.r damage. 01lW 1/I11lllhe paym&l1t$ ~u'rad to reason 01 the imIlainnel1l by IMlIlsurec ~_ .f 1110
O. made, .hall termi_, Inclodln!1 ",y lIob11ily 01 ~n CcmQany'a right 01 SlJl>'<rgIlIon.
10 cl8fanll, -.... or comlno. .ny IWgatJon. (0) TIIo ~. RlaIi.. Age/llll no.~_
7. DETtllMINATlON. EXTENT OF llA8lUTY lltIligo~ Com;w>r' nUN of suilrog.lIon ag&lnst """
AND CQlNSUMHCL Insured ob/lgo<> 8/leII ...51 IIlld marl il1C'udo, _
_no tnel1gftlS o/the~to iIlGemIlt;6s.gu:lM!tll,
other poIIdes oIl..."..".a Of ~nd.. n_1r1g any'
larmsocCOlldltlolloco_ir._,nm.ma.,,_
provide 101 suIlIrIpIion _ by _ 01 Uri'llOIic'i
14. AR8ITllAnOH.
\Jr1Iese pIOI1ibiled byappllcab~iaw, ejtI1erllle ~
p",y or lilt Insured miIIl dlrmandillWla'i<l.1 PUIOUaI1llO lilt
TItle lnaurwrce AIll_ Rules af 111'_ -..
""",,,ieIiOn, Arl>Iwalllt maua""'.at inclu<le, b<rt... "'"
Imite<lto.1flY '-my or cWm __ the ~
IIlld 1he ins""" amtng Ollt., oc rllallng 10 tills poley, any
..rvlco 01 the Compeiiy In ......lku1 with Its i.....'.. or
I1le breacfr of . poIIcj PIOVlsion or oIhrl. obIIgaOoo. AI
arbfflablt__lIIaA/rlocJnlOlk"""""'.i8
$1 ,0Il0,1llIl or ~.~ ~il>II III artlilnlll:ll at tM ~n ctl8lIM'
tM Campatry or tile insumd. Ail art>IlrabIe matters \O!le!l1ll6
M10unt O1lnsuranca Is in _18 or $1.000,000 sIIiiI bI
artlImllocI Olliy wtl,n eomod to ily boIh 111. C_ U1d the
insured, ~n purSlIiI1llo Illil pOliOy and ._ the
RuIes~elft<toolhe d2te tile demand for omitreliOO........
or, II the optlenot the 1nsu<etI. tl\e RuI..Ine1tllol lIlDalo rJI
PoUey .naII be llilldIng IlpOO ttro parties. The awwd may
include I!IOfl\tlII' fees only ~ Ill. law$ of Ill. Slatllln wIlIC/I
1I101and1._ilemrltaCillJrtwa..:olIlIl1Omeye'....'''
a Ill'MIbl\ll pany, JUdgment IJllOIIII1e ,w.rll ,..,dmd by tile
AI1lill1llr(s) may b. orIlrrlll In any lOur! having jIJr1sdIctIon
1lWeof,
The law ot tilt sku& of WI. Imd IMil 8t11iy to an
Irllltra!lol1 onllar Iha r~. insuranet AIflllralfon Ru;os.
A COllY of tht Ruiea may be _0<2 1rom the
Corr4Iony upon _.
15. Lb\81~rrY L",,11EII ll'IllllS POlJtV:
POUI:Y ENTIRE COIfTMCt
This policy ~ a oOntrotl 01 iMemnily agilosl .elllai
-y loss or damaoo eusUln80l or II1CUITOd ill' the
ill.uiW_WtlO has _kias ortlamage!>y_
of_ill",,,,, aoWt bylllls IlOIICI' anQoolylOthe_
ho''''' de_.
(.}llttllaDlityoltheC_lII1derllllSpolICySlrall
not exceed the ~Il$\ of:
Q) the Amount Of Insuranc. staled In ScIiodul. A:
Of
(Ii) the dilfun",ce __til, "lue .f lIIa Insumd
_orlnferesl4a""_and lhevalu. of the inalired_
or 1_ ....;eel to II1e dofect, 6.n 0( encumb..... iIlsured
aQainst by !/Us polley.
Ill)' I' lno MIll 111. AmoUlll 01 insurance $Wlled in
S<hlId~. A .1 the D<IIe aI PoUcy " '= 11'.. SO pereont of
llla valu. or lIIa i....,ed 'SlaI9 ill' jl1lerast or Ill. 1uII
ean,id",U"" pild for tile I.,.,d, Wflich.... is I..., or .
"bS<<lu~ to II1e Date r:f PolIcl i111mpro_1s ,,_
on 1!'ulliind Wflich Inor..... 1110 'alue Of tile inSU,,~..tal6
or inblreal by at Iell$\ 20 per..", 0V8I' 1110 ArTroIInl 01
Insuranc. ""lad in SChedul. A. tl1e., !his Polil:y i. 'UbjeclIO
ll1e '''lOwing'
Q) whert no 8\lboeque1ll impr"emem has b...
mad<, ..Ie lilt partiilllos~ ltla ComPIIIt.....1I QI',1y peytle
"". pro IilIaIn 111. proportion 1I1at I1le Amount nl InwI'l/lC'
alOalt! Of Palloy bears 10 111. toIiI vaiUI "tllein."""_
or 111101.01 ill Oate III Paicy; 01 011 Wh<<o . sub..qulnt
Improv.ment has b.... maoe, al tu any ,art!llllO... Ihe
Company 3hall onty pay ttwllosspr'orata in the ~rUon that
120 p.rt'" of 1M Ar.nounl 0; In'...... _ III Sc1it<Iui.
A be'l$ I. the sum of lI'~ Amoul1l ot insuranoa Slated In
Schedule A and the amOUl1t "'JIlI'ldfld lor Il1e Illltl<<>VemO'll
The __ 01 lIlis llaraorOllh eI1aIl hOI AllIII1to
._, .lIOtneys' teo; alld "'ll""'" lor whiCn llla C....".ny
I, :;al:le ._this pelicy, ond sIlaJlOl1~ aPW to tlIat llof1lOl1
ol any losa Whlcll ""1I<lCIa, in n.. a@I1!llllle, 10 perellrll Of
the Amiltrlll or lnaurano. statad In Schodtrle A.
(cl The Company wll pat ooIy ows. CllSlS. attorney.'
fees and expensn incurred In a,cortlance wittI 5ection 4 of
Ih... CondiloilS "'d StIpuIalI"'$.
8.
AfPORnONMENT.
II the ~nd desorlbed i. S........ (A)(C) COI1~'" 011NO
or more pan::/JIs whith are nor used as a Slrig!B SIte. and a loss
Is 8S!<bUshed a"seting 0111 or more tf 111. patels but nOl all,
Il1eIO$.ohaiIIltCompUlll(l an<l.OIlledOO a pro lali basis ilS
it tho A_ot oIlMlrllllC. _ tlIl. poley.... c1N.... prn
nla II to 111. vaNe en Date ot Poley 0( each $O\larate parcel
to Ih& wI1<Jie. ....kIlliv. of any ~11>V"""nts mad. sorbo
. sequ.... '" o.te 01 ""'i'y, unless . ilablllty Of val.. "..
-.. been "Il'et1d IJjlOIl .. b eath pan:el b~ ...
Comjlan)l.nd the Insored .llI1e tJmc> n1tho '_a of Illil
po~C~ and shown by an Ullllle!S s1atement 01 by an
_..mel11 _hid to nlls poI~y,
I. UMII'ATlQH Of LWlIUT'L
(a) ~ Ina Ccmp.nye_iahea 1I1e tile, ocremov"'th.
~Ieged detect, lien or """""""'e, or .....s ltla lack 01 a
right of access taor from the . land, or CUiBS IhD eiaim of
unmariattabllity of ti1Ie, an as Insured, in 4 reesonably tfflioent
Il1iII1I18I' by any mel1l<XI. l"cludll1lll<tig:llion IIlld ""'""'""'"
bOI1efanY_1$ therltnlm, n ihalItr"".luIIy perlonned JIe
obigalfcns with '..peclIO IIIilmatter and sholl nil( be !ial)1e
(al Tllts !ll>IIcy~_ 81",,*,,""1811"', II any,
altaCheo h",eIo by tie Company I. the enlrre PO"'Y .n<!
contract _ tII."".". an~ tho Company In 11lt\lIPfi\-
1"1) any pmi"on O1l!l1s poIcy,llilS poley .haIt lit c_
asa wl1oIe,
(b) My claJm otiose or dlmllllll, wil_ 01 nor
!lased on noglljrer"", and whicb ..,... 0lJl 01 !lit staIlJo of
lt1e tile '" tlI. estat. or Inlbleet cO'ered hereby or by any
llCtton -f1inlI sueh ctaIrn, SilaJI be reW""IIld lo!tilo polICy,
(e) No _ 0/ 0( ."00"$111'" lo IIIIS poley
,an Ilemado ....by.-.gen_noraooor_
nerolO sI\Iledbyeitl>orltlaFleIlidetrt,aVi<rlPr..ilWlf.the
Sa"eol/)', an ~ Secrttuy. or 'ilIidol\rlg offlcer or
aulllOrlm: sIijnelOry 0/ ~ Company,
lL IEVEIlIlIIUrr.
In lilt _11 lilt pro~,lnn cllh<t ilOIic~ ~ hOld Iava!d
'" unenlor_ uM" awllcable laW, tne policy sh9Il bo
deemed nol'" 1ncIlr<lll1hatIlfO_ and "'_ provta_
-_inlul'orc.,mdllflact.
17, NOllCfS, WHEJU SOr.
All ootlcea roqukill '0 be gI,," II~ ~ and 81')'
$1al~ In ..fItn~ reqvlI\Id 10 be l\lmiahod Ifle Ccmp:ony
ohaIllncludell1tnllmllerof!tilol>Oli<:v "'dslral/be_
10 the Co"""ny ill 1 14 EISt ff!lh Slret!, s"ntaAna. CoMomiaJ'
92701, or 10 1lle 0ffiC. _n A$U9d m,. poiIGy.
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J~n 12 SS 03:00p
~re~ B. Davi$
(S--1 544~511S
~ .;
p.2
EI ~ { 8 /1 (...,
OPERATING AGREEMENT OF
LOT 36 MAROON CREEK CLUB, LLC
A COLORADO LIMITED liABILITY COMPANY
THIS AGREEMENT is made and entered into effective this If g, 1998 by and
between LOT 36 MAROON CREEK CLUB, ~LC, a Colorado limited r bility company (the
Company) and RICHARD A. WAX (Wax) and Jack DEBOER (DeBoer)), hereinafter referred
to as Members.
WITNESSETH:
IT IS AGREED, in consideration of the promises, covenants, performance, and mutual
consideration herein as follows:
I
FORMATION OF COMPANY
1.1 Articles of Organi7Jltion. This Company is organized pursuant to the provisions
of the Limited Liability Company Laws of the State of Colorado and pursuant to Articles of
, Organization filed with the Secretary of State on The rights and obligations of the
Company and the Members shall be as provided in dIe Articles of Organization and this Operating
Agreement. The Company is formed for the single purpose of development for profit of Lot 36,
Maroon Creek Club, City of Aspen, County of Pitkin, State of Colorado (the Property). The
Property is presently owned by Tieback Development Corporation and is the subject of an option .
for the benefit of the Company.
1.2 Conflict between Articles of Organization and this Agreement. If there is any
conflict between the provisions of theArticles of Organization and this Operating Agreement, the
terms of this Operating Agreement shall control.
n
CAPITAL CONTRmUTlONS
2.1 Contributions. The capital contributions to be made by the Members and with
which the Company shall begin business are as follows:
Jan 12 99 03:00p
J~re~ B. Davis
(~J 544-5116
p.3
Member Name
Contribution
Richard A. Wax
Jack DeBoer
$37,5oo,OOUSD
$37,500,OOUSD
2,2 Additional C''lpital Contrihutions, In the event that the cash funds of the Company
are insufficient to meet its operating expenses or ~ finance new invesunents deemed appropriate
to the scope and purpose of the Company as determined by the Managers, the Members shall
make additional capital contributions; in the proportion of their capital coniribution. The amount
of the additional capital required by the Company and the period during which such additional
. capital shall be retained by the Company shall be determined by the Managers. Any funds for the
development of the Property that are needed prior to closing of a construction loan shall be
advanced by the Members in the proportion of their capital contributions. It is agreed that Wax
and DeBoer shall obtain a construction loan in an amount sufficient to cover development of the
entire project and that Wax and DeBoer personally shall be the obligors of said construction loan.
All costs as~ociated with the construction of the residence at Lot 36, Maroon Creek Club will be
paid by the construction loan including but not limited to; payroll taxes, general liability
insurance, workers compensation insurance, payroll expenses, homeowners association dues,
design review fees, permit fees, and marketing costs. Provided, however, and notwithstanding the
foregoing, that once both Managers have unanimonsly adopted a budget (the amended final budget
is attached hereto and incorporated herein as Exhibit A) for the development of the Property, if
the Managing Manager exceeds such budget by more than ten (10%) percent without the prior
written consent of the Vice-Managing Manager, the Managing Manager shall pay all excess costs
personally and shall not be reimbursed for such payments until after the house has been sold and
the escrow on the house has been closed. DeBoer and Wax each agree, and notwithstanding other
provisions in this paragraph 2.2, that in the event that, with the consent of both parties, the
expenses exceed the funds obtained from the $1,850,000.00 development and construction loan,
DeBoer and Wax shall fund one-half (112) of the difference in cash unless the parties are able to
otherwise borrow the money needed to pay the additional expenses.
2.3 Lilll.n.s., In lieu of voting an additional assessment of capital to meet operating
expenses or to finance new investments, the Company may, as determined by the Managers,
borrow money from one or any of the Managers, Members, or third persons. In the event that
a loan agreement is negotiated with a Manager or Member, he or she shall be entitled to receive.
interest at a rate and upon sueh terms to be determined by the Managers, excluding the Manager
making said loan, if applicable, and said loan shall be repaid to the Manager or Member, with
unpaid interest, if any. as soon as the affairs of the Company WIll permit. The loan shall be
evidenced by a promissory note obligating the assets of the Company. Such interest and
repayment of the amounts so loaned are to be entitled to priority of payment over the division and
distribution of capital contributions and profit among Members.
2
J~n 12 99 03:00p
J~fre~ B. Davis
19-1 544-5116
j
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2.4 Start u.p EJqlenses. As outlined in paragraph 2.1, both Wax and DeBoer shall
contribute such funds to start up the business. These funds are to cover the costs of starting the
ronstruction of the house on Lot 36 and shall include but n()t Htnited to soils reports, surveys,
insurance, payroll taxes, Maroon Creek SARC Design Review fees, architectural and structural
design fees and deposits, These costs shall be borne equally by Wax and DeBoer from their own
funds until such time as a construction loan can be obtained. Upon the establishment of the
construction.loan all of the costs borne equally by Wax and DeBoer shall be reimbursed without
interest.
2.5 Soils Conditions If in the event that the property at Lot 36, Maroon Creek Club
has adverse or inappropriate soils conditions for the efficient or reasonable construction of a
residence of the merits Richard Wax is accustomed to building, than Wax or DeBoer shall have
the right to cancel this contract or renegotiate the price of which the land is being brought to the
Lot 36 Maroon Creek Club, LLC. As such, if the agreement becomes canceled all monies paid
to date by Richard Wax as start up money for the business, will be reimbursed to Richard Wax
by
THIS SPACE LEFT BLANK
3
Jan 12 SS 03:01p
~fre~ B. Davis
1!f""!\,,1 544-5116
p.5
DeBoer. All reports and plans generated by the start up capital of the Lot 36 Maroon Creek Club,
LLC will become the sole property of DeBoer.
2,6 Merchantibility If in the event that the Lot 36 project is completed to the point
where there is merchantibility of a house, that is completed and approved plans, surveys, soils
reports, structur3l engineering and DeBoer makes a decision to not build said house, Richard Wax
is entitled to be paid a fee for the services rendered to establish such merchantibility in the amount
of$50,OOO.OOUSD. This fee for services rendered of$50,OOO.OOUSD is dlle and payable to Wax
by DeBoer within 90 (ninety) days of submittal o~ completed work to DeBoer. If DeBoer makes
the decision to not begin construction of said house after work has begun on the above items of
. paragraph 2.6, than DeBoer shall pay to Wax a pro rated percentage of work completed based on
a final completed work value of $50,OOO.OOUSD.
2.7 IrnpIementltion Upon the implementation of this agreement, DeBoer must make a
decision to begin construction of the house at Lot 36, Maroon Creek Club. If the decision is made
to not begin construction of the house on Lot 36, Maroon Creek Club, than DeBoer will have to
pay for the start up costs of the business personally and solely and the portions of the provisions
of paragraph 2.2 will not be valid, If the decision is made to start construction, than the start up
costs of the business will be borne equally by Wax and DeBoer per the provisions of paragraph
2.2 of this agreement. If the decision is made to begin construction, construction will begin as
soon as possible.
Decision to begin construction as
soon as possible
DeBoer
Decision to not begin construction
DeBoer
4
J~n 12 99 03:01p
J~re~ B. Davis
(9- 544-5116
" J
p.6
ill
MEMBERS' ACCOUNTS; ALLOCATION OF
PROFIT AND LOSS; DISTRIBUTIONS
3,1 Capital Accounts. A separate capital account shall be maintained for each Member.
The capital accounts of each Member shall initially reflect the amounts specified in Section 2.1,
and, if a.Member has merely promised to contribute the amount specified in Section 2.1, the
Company shall maintain a corresponding subscription receivable on behalf of that Member. No
Member shall withdraw any part of his or her capital account. except upon the approval of the
Managers. If the capital account of a Member becomes .impaired, or if he or she withdraws said.
capital account with approval of the Managers, his or her share of subsequent Company profits
shall be credited first to his or her capital account until that account has been restored, before such
profits are credited to his or her income account. If, during the period when a Member's capital
account is impaired or he or she has withdrawn funds therefrom as hereinbefore provided, an
additional contribution is required of the Members for the purposes specified in Section 2.2, thim
the Member with such withdrawn or impaired capital account shall be required to contribute his
. or her proportionate share of the additional capital contribution and the deficiency then existing
in his or her capital account, so as to return the capital account to the same proportion existing as
of the date of the additional contribution. No interest shall be paid on any capital contributions
to the Company.
3.2 Income Account. A separate income account shall be maintained for each Member.
Company profits, losses, gains, deductions, and credits shall be charged or credited to the separate
income accounts aimually unless a Member has no credit balance in his or her income account.
in which event losses shall be charged to his or her capital account, except as provided in Section
3.1. The profits, losses, gains, deductions, and credits of the Company shall be distributed or
charged to the Members as provided in Section 3.3. No interest shall be paid on any credit
balance in an income account.
3.3 Allocations among Members. The profits and gains of the Company from
development of the Property or from any other sources shall be divided and the losses, deductions,
and credits of the Company shall be borne in the following proportions provided that no profits
are to be distributed (though they will be allocated for book and tax purposes) until the land is
purchased and paid; and the amount payable under 3.3B is only payable after the land and building
are sold, and all other obligations are paid, Profit is understood to be net of all planning,
construction, operating and selling costs:
A. Wax and DeBoer shall divide the profits 50% to Wax and 50% to DeBoer
( in equal shares)
5
Jan 12 SS 03:02p
~rre~ B. Davis
(rl) 544-5116
p.?
B. If there is a cost overrun greater than 10% of the budget per paragraph 2.2.
than this amount will first be reimbursed to Wax before the profits are
divided.
All parties hereto hereby agree that the Property will not be sold for less than a total
$1,000,000.00 profit without the prior written consent of DeBoer and Wax for one year after the
Certificate of Occupancy has been issued,
3.4 Dis,pro,portionate Capital Accounts, No interest or additional allocation profits,
losses, gains, deductions, and credits shall inure to any Member by reason of his or her capital
account being proportionately in excess of the capital accounts of the other Members.
c..
3.5 Distribution of Assets.
3.5.1 All distributions of assets of the Company, including cash, shari be made
in the same allocations among Members as described in Section 3.3 providing that no
distributions will be made until the land is paid for and the property is sold.
3.5.2 The Managers shall determine, in their discretion, whether distributions of
assets of the Company should be made to the Members; provided, however, that no
distribution of assets may be made to a Member if, after giving effect to tbe distribution,
all liabilities of the Company, other than liabilities to Members on account of their capital
and income accounts, would exceed the fair value of the Company assets.
3.5.3 A Member has no right to demand and receive any distribution from ihe
Company in any form other than cash.
IV
r ,
RULES RELATING TO TIlE MEMBERS
4.1 Admission of New Members. Additional Members may be admitted upon the
unanimous written consent of all Members.
4.2 Voting of Members. Each Member's vote shall be proportionate to his or her
capital account ("Member's Voting Interest"), A member may vote in person or by proxy at any
meeting of Members. All decisions of the Members shall be made by a majority of the Members
Voting Interests at a properly called meeting. of the Members at which a quorum is present, or by
unanimous written consent of the Members.
6
~an 12 SS 03:02p
~~re~ B. Davis
'" ~
(~.) 544- 116
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4.3 Meetines of Members.
4.3.1 Meetings of Members may be held at such time and place, either within or
without the State of Colorado, as may be determined by the Managers or the person or
persons calling the meeting.
4.3.2 An annual meeting of the Members shall be held on the first Tuesday of
April in each year.
4.3.3 Special meeting of the Members may be called by the Managers or by at
least twenty-five percent (25 %) of all of the Members entitled to vote at the meeting.
4.3.4 Written notice stating the place, day, and hour of the meeting and, in the
case of a special meeting, the purpose for which the meeting is called, shall be delivered
not less than ten (10) days nor more than fifty (50) days before the date of the meeting,
either personally or by mail, by or at the direction of the Managers or any other person
calling the meeting, to each Member of record entitled to vote at such meeting. A waiver
of notice in writing, signed by the Member before, at, or after the time of the meeting
stated in the notice shall be equivalent to the giving of such notice.
4.3.5. By attending a meeting, a Member waives objection to the lack of notice
or defective notice unless the Member, at the beginning of the meeting, objects to the
holding of the meeting or the transacting of business at the meeting. A Member who
attends a meeting also waives objection to consideration at such meeting of a particular
matter not within the purpose described in the notice unless the Member objects to
considering the matter when it is presented,
4.4 Quorum and Alljoumment. Seventy-five percent of the Members' Interests entitled
to vote shall constitute a quorum at the meeting of Members. If a quorum is not represented at
any meeting of the Members, such meeting may be adjourned for a period not to exceed sixty (60)
days at anyone adjournment; provided, however, that if the adjournment is for more than thirty
(30) days, a notice of the adjourned meeting shall be given to each Member entitled to vote at the
meeting, If a quorum is not so attained at any meeting, then the Managers shall act on behalf of
the Members at any such meeting,
4.5 Member Voting. Members shall vote annually to elect the Manager and Vice
Manager as provided in section 5.3.2 and shall vote on such other matters as are reserved for
decision by the members.
7
~an 12 99 03:03p
~fre~ B. Davis
0' }
(~J 544-5116
I,!
'.-,', ',0,1
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"
v
RULES RELATING TO MANAGERS
5,1 General Powers. Management and the conduct of the business of the Company shall
be vested in the Managers. The Managers may adopt resolutions to govern their activities and the
manner in which they shall perform their duties to the Company.
5.2 Qualification.~ of Marngers. Managers shall be natural persons eighteen (18) years
of age or older.
5.3 Numher Election. and Term.
5.3.1 The number of Managers shall be two and such initial Managers shall be
Wax and DeBoer.
5.3.2 Each Manager shall hold office for one year or until his or her death,
incapacity or resignation, whichever first occurs..
5.4 Meetings and Voting.
5.4.1 Meetings of the Managers may be held at such time and place as the
Managers by resolution shall determine.
5.4.2 Written notice of meetings of the Managers shall be delivered at least twenty-
four (24) hours before the meeting personally, by telecopier, or by mail actually delivered
to the Manager within the twenty-four (24) hour period, A waiver of notice in writing,
signed by the Manager before, at, or after the time of the meeting stated in the notice, shall
be equivalent to the giving of such notice.
5.4.3 By attending a meeting, a Manager waives objection to the lack of notice or
defective notice unless, at the beginning of the meeting, the Manager objects to. the holding
of the meeting or the transacting of business at the meeting.
5.4.4 A majority of the Managers entitled to vote shall constitute a quorum at the
meeting of MaJ13gers, Each Manager and Vice Manager shall have only one vote. In the
case of a stalemate between Managers, the Members shall decide the disputed matter.
5.4,5 All decisions of the Managers shall be made by a majority vote of the
Managers at a properly called meeting of the Managers at which a quorum is present, or
by unanimous written consent of the Managers.
5.5 Duties of Managers,
8
Jan 12 99 03:04p
~~re~ B. Davis
/! .,
lr"v 544-5116
;
p.10
5.5.1 The Managers shall have the duties and responsibilities as described in the
Colorado Limited Liability Company Act, as amended from time to time,
5.5.2 The Managers, or anyone of the Managers as designated by resolution of
the Managers, shall execute any instruments or documents providing for the acquisition,
mortgage, or disposition of the property of the Company.
5.5.3 Any debt contracted or liability incurred by the Company shall be authorized
only by a resolution of the Managers, and any instruments or documents required to be
executed by the Company shall be signed by the Managers or anyone of the Managers as
designated by resolution of the Managers,
5.5.4 The Managers may designate anyone of the Managers or delegate an
employee or agent to be responsible for the daily and continuing operations of the business
affairs of the Company. All decisions affecting the policy and management of the
Company, including the control, employment, compensation, and discharge of employees;
the employment of contractors and subcontractors; and the control and operation of the
premises and property, including the improvement, rental, lease, maintenance, and all other.
matters pertaining to the operation of the property of the business shall be made by the
Managers.
5.5,5 Any Manager may, by appropriate resolution duly adopted by the Managers,
draw checks upon the bank accounts of the Company and may make, deliver, accept, or
endorse any commercial paper in connection with the business affairs of the Company.
5.5.6 Wax shall be the Managing Manager and Jack DeBoer shall be the Vice-
Managing Manager. The Managers, together, shall make all policy decisions and all
decisioJ1S as to the sale or encumbrance of Company propeny and the borrowing of money
by the Company; and the Managing Manager shall have the day-to-day responsibility for
the conduct of the Company's business. Once the Managers have agreed to the conceptual
design of the residence to be built on the Property and the budget therefore. the Managing
Manager shall be responsible for making the day-to-day decisions in carrying out 'the
development of the Property. The Managing Manager shall be required to submit to the
Vice-Managing Man;lger on a monthly basis, full financial reporting as well as reporting
as to status of the development, which reporting shall also compare expenses incurred
versus budget,
5.5,7 All expenses of the development will be paid by submission of a draw
request by the Managing Manager to the bank making the construction loan. All payment
requests will be faxed to DeBoer or his designee for approval prior to payment. All checks
must be signed by either the Managing Manager or his assistant, Jeff Davis. All payments
by Managing Manager to contractor, subcontractors, laborers, suppliers and materialmen,
shall require the obtaining by Managing Manager of lien waivers and Managing Manager
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shall certify monthly to ViCe-Managing Manager that lien waivers are current with regard
to all sums paid to that date.
5.5.8 Managing Manager acknowledges that the DeBoer is participating in this
development with the Managing Manager based upon Managing Manager's reputation and
based upon the representation that Managing Manager shall personally be involved at all
times in this development project, In the event that Managing Manager is unable to
personally continue with this development project at any time, e.g., death, disability,
disappearance, etc., then Vice-Managing Manager shall have the right to assume all
authority and to take whatever steps Vice-Managing Manager deems necessary in order to
complete the development project. Upon such completion by Vice-Managing Manager, he
shall deduct from Managing Manager's share of any distributions, all costs incurred in
Vice-Managing Manager's judgment in order to complete the development project prior to
WaJ< or his estate being entitled to any distributions, In the event of Managing Manager's
such death, disability, disappearance, etc., Vice-Managing Manager shall consider
continuing the project utilizing Managing Manager's assistant, Jeff Davis, but the decision
as to how to complete the project shall be in Vice-Managing Manager's sole discretion.
5.5.9 It is agreed that the plan for marketing the project (unless the Managers
otherwise agree) would be that the Property would be listed with Advanced Property
Services at a 6 % commission (3 % to the listing office and 3 % to the selling office), Of any
real estate commissions earned by Advanced Property Services, 25 % of that commission
would be payable to Advanced Property Services broker, Benton Smith, and 75 % of that
commission would be split as follows: 50% thereof to Managing Manager's assistant, Jeff
Davis, and 50% thereof to WaJ<. Marketing expenses shall be advanced by the Company
and reimbursed to the Company before the 3 % listing commission is distributed.
5,5.10 The cost of the salary of the Managing Manager's assistant, Jeff Davis,
shall be an expense of the development project at the rate of $75,000 per annum, Richard
WaJ< & AssOcia!es may deem at their own will the need for an assistant superintendent. If
such a superintendent is hired, that person will be an expense to the project at a rate of
$50,000.00 per annum. The cost of the salary of Jeff Davis and or a assistant
superintendent will be paid directly to Richard Wax & Associates via a check drawn on the
construction loan account on a monthly basis. Richard Wax & Associates will not bill an
assistant to the project until the second house project is begun. Neither Managing Manager
nor Vice-Managing Manager shall be compensated for their duties. .
5,6 Devotion to Duty. At all times during the term of a Manager, the Manager shall
give reasonable time, attention, and attendance to, and use reasonable efforts in the business of the
Company; and shall, with reasonable skill and power, exert himself or herself for the joint interest,
benefit, and advantage of said Company; and shall truly and diligently pursue the Company
. objectives, Provided, however, that all Members acknowledge that acting as Manager is not a full
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time job and that the Managers (as well as the Members) as entitled to pursue other endeavors,
including endeavors which might be in competition or conflict with the Company.
5.7 Indemnification. Managers, employees, and agents of the Company shall be entitled
to be indemnified by the Company to the extent provided in the Colorado Limited Liability
Company Act, as amended from time to time, and shall be entitled to the advance of expenses,
including attorneys' fees, in the defense or prosecution of a claim against him or her in the capacity
of Manager, employee, or agenL
5. 8 Day to Dl\)' I nteractions As has been described in paragraph 5.6, the Managing
Manager shall give reasonable time, attention and attendance to the project and use reasonable
efforts in the business of the Company, Deboer shall have reasonable concern about the business
of the company but shall not have regular day to day interactions with regards to the construction
of the home.
'"n
VI
BOOKS
6.1 I ncation of Records. The books of the Company shall be maintained at the principal
office of the Company or at such other place as the Managers by vote or consent shall designate.
6,2 Access to Record~ and Accounting. Each Member shall at all times have access to
the books and records of the Company for inspection and copying, Each member shall also be
entitled:
6,.2,1 To oblain .from the Managers upon reasonable demand for any purpose such
information reasonably related to the Member's Membership Interest in the Company;
6.2.2 To have true and full information regarding the state of the business and
financial condition and any other information regarding the affairs of the Company;
6,2.3 To have a copy of the Company's federal, Slate, and local income tax returns
for l;llch year promptly after they are available to the Company; and
6.2.4 To have a fonnal accounting of the Company affairs whenever circumstances
render an accounting just and reasonable.
6.3 Accounting Rules, The books shall be maintained on a cash basis. The fiscal year
of the Company shall be the calendar year. Allocations to income accounts shall be made
annually. The books shall be closed and balanced at the end of each calendar year and, if an audit
is determined to be nece..~ry by vote or conSent of the Managers, it shall be made as of the closing
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date. The Managers may authorize the preparation of year-end profit-and-Ioss statements, balance
sheet, and tax returns by a public accountant.
vn
DISSOLUTION
7.1 ('.:luses of Dissolution. The Company shall be dissolved upon the occurrence of any
of the following events:
7.1.1 At any time by unanimous agreement of the Members;
7.1.2 Upon the expiration of the period fixed for the duration of the Company in
its Articles of Organization and if not set forth therein, thirty (30) years from the date
hereof;
7.1.3 Upon the death, retirement, resignation, expuision, bankruptcy, or
dissolution of a member,
7,1.4 Upon the sale of the Property.
7.2 Continuation of Bllsine.~s. Notwithstanding a dissolution of the Company under
Section 7.1..3" the Members may elect to continue the' business of the Company, so long as the'
remaining Members unanimously consent to do so, by purchasing the deceased, retired, resigned,
expelled, or bankrupt Member's ("Withdrawn Member") Membership Interest, I
7.3 Purchase of Withdrawn Memher's Membership Interest.
7.3.1 If the Members elect to continue the business under Section 7.2, the purchase
price of the Withdrawn Member's Membership Interest shall be fair market value. The
fair market value of a Member's Interest to be purchased pursuant to this Section shall be
determined by agreement between the Withdrawn Member (or of his successor or personal
representative, as the case may be) and the Company. For this purpose, the fair market
value of the Withdrawn Member's Membership Interest shall be computed as the greater
of: (i) the Company's ,book value as reflected on its most recently completed annual
financial statement, multiplied by the Withdrawn Member's prciportionate Membership
Interest as of the date of the occurrence of the Withdrawing Event; or (ii) the amount which
could reasonably be expected to be realized by such Member upon the sale of the Company
Property in the ordinary course of business at the date of the occurrence of the Withdrawing
Event. If the Withdrawn Member (or his successor or personal representative, as the case
may be) and the Company cannot agree upon the fair market value of such Membership
Interest within sixty (60) days, the fair market value thereof shall be determined by
appraisal, the Company and the Withdrawn Member (or his successor or personal
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representative) each to choose one appraiser and the two appraisers so chosen to choose a,
third appraiser. The decision of a majority of the appraisers as to the fair market value of
such Membership Interest shall be final and binding and may be enforced by legal
proceedings. The Withdrawn Member (or his successor or personal representative) and the
Company shall each compensate the appraiser appointed by it and the compensation of the
third appraiser shall be borne equally by such parties. If the Company or the Withdrawn
Member (or his successor or personal representative) fails to choose an appraiser, or if
either party's chosen appraiser fails to perfonn in the manner and within the time frames
provided in this paragraph, then the decision as to the fair market value of such
Membership Interest shall be determined solely by the arbitrator chosen by the other party.
The purchase price is subject to setoff for any damages incurred as the result of the
Withdrawn Member's actions; and nothing in this paragraph is intended to impair the
Company's right to recover damages for the Withdrawn Member's wrongful dissolution of
the Company by reason of the Withdrawn Member's expulsion, retirement, resignation, or
bankruptcy. .
7.3.2 The purchase price determined under Section 7.3.1 shall be paid to the
Withdrawn Member in cash.
7.3.3 The Effective pate shall be the date of death of a deceased Member; the date
personal notice is received, or the date the certified mail is postmarked, in the case of a
retired, resigned, or expelled Member; or the date the notice is delivered to the Withdrawn
Member or to the place of business of the Company, in case of bankruptcy of a Member.
7.3.4 Notwithstandillg the foregoing, If the withdrawn member is Jack p, DeBoer,
and the withdrawal arises as a result of his death, than the executor of the estate of Jack P.
DeBoer, his personal representative, or trustee, as the case may be, may elect to remain as
a Member as provided in Section 11.2 hereof and the interest shall not be purchased but
transferred to the Estate, personal representative or trustee as the case may be,
7 A. Distribution of Assets If Business Is Not ContinllpLl. In the event of dissolution of
the Company and if the Members do not elect to or are unabl~ to continue the business of the
Company under Section 7.3, the Managers shall proceed ~th reasonable promptness to sell the real
and personal property owned by the Company and to liquidate the business of the Company. Upon
dissolution, the assets of the Company business shall be used and distributed in the following order:
704.1 Any liabilities and liquidating expenses of the Company will first be paid;
(including the Option Contract on the land.)
704.2 The reasonable compensation arid expenses of the Managers in liquidation
shall be paid;
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7.4,3 The am.ount remaining shall be paid to and divided amang the Members in
accordance with their capital accounts.
vm
EXPULSION OF A MEMBER
8,1 Causes of Expulsion, A Member shall be expelled from the Company upon the
.occurrence of any of the f.ollpwing events:
8.1.1 If a Member shall vi.olate any .of the prpvisipns .of this Agreement; .or
8,1,2 If a Member's Membership Interest shall be subject to a charging order .or
tax lien, which is nat dismissed or resplved to the satisfactipn .of the Managers .of the
Cpmpany within thirty (30) days after assessment .or attachment.
8.2 Notice of Expulsion, Upon the occurrence of an event described in Section 8,1,
written nptice .of expulsipn shall be given tp the viplating Member either by serving the same by
personal delivery or by mailing the same by certified' mail to his .or her last knpwn place .of .
residence, as sh.own.on the bo.oks of said Company. Up.on the receipt .of personal n.otice, .or the
date .of the p.ostmark fpr certified mail, the violating Member shall be considered expelled, and
shall have 110 further rights as a Member .of the Cpmpany ,except to receive the amounts to which
he .or she is entitled under Sectipns 7.3 and 7.4.
IX
BANKRUPTCY OF A MEMBER
9.1 BanknlPtQy Defined. A Member shall be considered bankrupt if the Member files
a petition for bankruptcy [.or an involuntary petitian in bankruptcy is filed against the Member and
the petitipn is nut dismissed within sixty (60) days] or makes an assignment fpr the benefit .of
creditors .or otherwise takes any proceeding .or enters into any agreement for compromising his .or
her debts .other than by the payment .of them in the full amount thereof, or is otherwise regarded
as insplvent under any Coloradp insolvency act.
9,2 Effective Date for Bankruptcy, The Effective Date .of a Member's bankruptcy shall
be the date that the Managers, having learned of the Member's bankruptcy, give n.otice in writing
stating that the Member is regarded as bankrupt under this Agreement, such notice to be served.
personally or by lea,ving the same at the place .of business of the Company. As of the Effective
Date, the bankrupt Member shall have np further rights as a Member of the C.ompany, except t.o
receive the amounts to which he or she is entitledunderSectipns 7~3 .or 7.4,
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x
RETIREMENT OR RESIGNATION OF A MEMBER
10.1 Right 10 Retire or Resign. A Member shall have the right, at any time. to retire or
resign as a Member of the Company by giving three (3) months' notice to the Company at the
Company's place of business.
10,2. ConseqJ1ences of Retirement or Resignation If the Business Is C'Alntinued. Upon
giving notice of an intention to retire or resign, the Withdrawn Member shall be entitled to have
his or her Membership Interest purchased as provided in Section 7.3 if the remaining Members
elect to continue the business of the Company under Section' 7.2. Upon the receipt of notice of the
remaining Member's election to continue the business, the Membership Interest of the Withdrawn
Member in the Company shall cease and terminate, and the Withdrawn Member shall only be
entitled to the payments provided in Section 7.3.
10.3 c.onseQJlences of Retirement or Resignation If the Business Is Not Continued. If the
remaining Members elect not to continue the business upon retirement or resignation of a Member;
or are unable to do so by law, the Withdrawn Member shall only be entitled to his or her interest
in liquidation, as stated in Section 7.4, subject to any setoff for damages caused by the Member's
retirement or resignation,
XI
DEATH OF A MEMBER
11.1 np~th ofa Member. Upon the death of a Member, the deceased Member's rights
as Member pf the Company shall cease and terminate except as provided in this Article XI.
11.2 Consequences ofDe:ith If Business Is Continued. If the surviving Members elect
to continue the business as provided in Section 7.2, the Managers shall serve notice in writing of
such election. within three (3) months after the death of the decedent, upon the executor or
administrator of the decedent, or. if at the time of such election no legal representative has been
appointed, upon anyone of the known legal heirs of the decedent at the last known address of such
heir. The Company shall purchase the Membership Interest of the deceased Member as provided
in Section 7.3, and the closing of such purchase shall be within thirty (30) days of the notice of
such election, except in the event the Company has life insurance on the decedent. in which event
the amount and method of payment for the Membership Interest of the deceased Member will be
as provided in Section 1l.3. Provided however, that if the deceased member is Jack P. DeBoer.
the executor of his estate, personal representative. or trustee, as the case may be, may elcct, in it's
sole discretion, to remain a Member and shall succeed to the Membership Interest of Jack P.
DeBoer and the company shall continue.
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11.3 In~llrance. Jack DeBoer or Richard Wax may contract for life insurance on the
lives of each of the Members at the purchasers personal expense, in any amount not
disproportionate to the value of each Member's Membership Interest. In the event of the death of
a Member, insurance proceeds paid to the Company will be used to purchase the Membership
Interest of the deceased Member. The purchase price shall be the greater of the amount determined
under Section 7.3 or the amount of insurance proceeds received by the Company. The payment
of the purchase price to the decedent's representatives or heirs shall be made within thirty (30) days
following receipt of the insurance proceeds by the Company. If the surviving Members do not
elect to continue the business of the Company, or are unable to do so by law, the proceeds of any
life insurance shall be treated as an asset of the Company for liquidation. .
11.4 Conseq!lences ofDeath If the Busine.'\.~ Is NotContinued, If the surviving Members
do not elect to continue the business, or are unable to do so by law, the deceased Member shall
only be entitled to his or her interest in liquidation as stated in Section 7.4.
xn
SALE OF A MEMBER'S INTEREST
12.1 Provisions Restricting Sale of Membership Interests. The membership interest
owned by Richard Wax may not be sold or transferred prior to completion and sale of the property
at Lot 35 Maroon Creek Club, In the event that a Member desires to sell, assign, or otherwise
transfer his or her Membership Interest in the Company and has obtained a bona fide offer for the
sale thereof made by some person not a member of the Company, he or she shall first offer to sell,
assign, or otherwise transfer the Membership Interest to the other Members at the price and on the
same terms as previously offered him or her, and each of the other Members shall have the right
to purchase his or her proportionate share of the selling Member's Membership Interest. If any
Member does not desire to purchase the Membership Interest on such terms or at such price and
the entire Membership Interest. is not purchased by the other Members, no other Member may
purchase any part of the Membership Interest, and the selling Member may then sell, assign, or
otherwise transfer his or her entire Membership Interest in the Company to the person making the
. said offer at the price offered. The intent of this provision is to require that the entire Membership
Interest of a Member be sold intact, without fractionalization. A purchaser of a Membership
Interest of the Company shall not become a Member without the unanimous consent of the non-
selling Members, but shall be entitled to receive the share of profits, gains, losses, deductions,
credits, and distributions to which the selling Member would be entitled. Provided, however, and
notwithstanding any other provision contained in this Operating Agreement, a Member is permitted
to transfer his/her interest free of the restrictions contained in this Article to (1) spouse; (2)
children; (3) grandchildren; (4) parent; (5) trust in which the beneficiaries are the Member and/or
hislher spouse, children or grandchildren; (6) an entity owned entirely by the Member and/or
hislher spouse, children or grandchildren.
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12,2 Blly/Sell Agreement. At any time that a Member is in good standing and is not in
default of any of his obligations to the Company, he shall have the right to make an offer to
purchase all of the Membership Interest in the Company owned by any other Member, by giving
notice to such other Member and setting forth the purchase price per percentage of Membership
Interest, terms and conditions under which he is willing to acquire such interest. For a period of
thirty (30) days after the receipt of such notice, the Member receiving such offer shall have the
right to purchase all of the Membership Interest of the offering Member at a price per percentage
of Membership Interest equal to the purchase price per percentage of Membership Interest specified
in said notice and on the same terms and conditions. If said right is not exercised within said thirty
(30) day period, the Member receiving such notice shall be deemed to have accepted the offer
contained therein and, upon receipt of the purchase price specified in said notice, shall sell, assign
and transfer all of his Membership Interest in the Company to the offering Member, In the event
there is a transfer of a Membership Interest pursuant to the terms of this section 12.2 and it results
in a tennination of DeBoer's interest in the Company, then all amounts due for the purchase of the
land shall be immediately due and payable and shall be paid simultaneously with the termination
of DeBoer's interest, .
xm
MEMBERS' COVENANTS
13.1 Member's Personal DebK In order to protect the property and assets of the
Company from any claim against any Member for personal debts owed by such Member, each
Member shall promptly pay all debts owed by such Member, each Member shall promptly pay all
debts owing by him or her and shall indemnify the Company from any claim that might be made
to the detrill).ent of the Company by any personal creditor of such Member.
13.2 Alienation of Membership Interest. No Member shall, except as provided in Article
XII, sell, assign, mortgage, or otherwise encumber his or her Membership Interest in the Company
or in its capital assets or property; or enter into any agreement of any kind that will result in any
person, firm, or other organization becoming interested with him or her in the Company; or do any
act detrimental to the best interests of the Company.
13.3 Cross-Indemnification, In the event that the Members unanimously agree that
loans or obligations of the Company should be personally guaranteed by the Members, then the
Members shall and hereby agree to indemnify, hold harmless and defend each other such that the
liability and obligation of each Member (whether all or less than all actually sign the guaranty
documentation) shall be limited to the prorata interest that that Member has in the profits and losses
of the Company as designated in paragraph 3.3. .
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XIV
TAX MATTERS
14,\ Definitions.
"~usted Capital Account Deficit" means, with respect to any Member for any Fiscal Year,
the deficit balance, ifany, in such Member's Capital Account as of the end of such Fiscal Year, after
giving effect to the following adjustments:
A. credit to such Capital Account any amounts that such Member is obligated to
restore or is deemed obligated to restore as described in the penultimate
sentences ofTreasury Regulation ~ 1. 704-2(g)(2) and Treasury Regulation ~
1. 704-2(i)(5); and
. B. debit to such Capital Account the items described in Treasury Regulation ~~
L704-1(b)(2)(ii)(d)(4), (5) and (6).
''Book Basis;' means, with respect to any asset, the asset's Tax Basis; provided, however, (1)
if an asset is contnbuted to the Company, the initial Book Basis of such asset shall equal its agreed fair
market value on the date of contribution; and (ii) if the Capital Accounts of the Members are adjusted
pursuant to Treasury Regulation ~ L 704-1 (b) to reflect the fair market value of any asset of the
Company, the Book Basis of such asset shall be adjusted to equal its respective fair market value as
of the time of such adjustment in accordance with such Treasury Regulation. The Book Basis of all
such assets of the Company shall thereafter be adjusted by Depreciation as provided in Treasury
Regulation ~ 1.704-1(b)(2)(iv)(g) and any other adjustment to the basis of assets other than
depreciation or amortization.
"Partner Minimum Gain" means "partner nonrecourse debt minimum gain" as defined in
Treasury Regulation 9 1.704-2(i)(2).
"Partner Nonrecourse Debt" means "partner nonrecourse debt" as defined in Treasury
Regulation 9 L 704-2(b)( 4).
"Partner Nonrecourse Deductions" means "partner nonrecourse deductions" as defined ill'
Treasury Regulation ~ 1.704-2(i).
"Partner Minimum Gain" means partnership minimum gain determined pursuant to Treasury
Regulation ~ 1. 704-2( d).
"Section 704(b) Regulations" means the final Treasury Regulations under Section 704(b) of
the Code relating to the determination of a Member's distributive share of the Company income, gain,
loss, deduction or credit (or items thereof). .
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14.2 Section 704.
Compliance with Section 704(b). . The following special allocations shall,
except as otherwise provided, be made in the following order:
A. Minimum ('..ain Char~e-back.. Notwithstanding any other provision of this
Article VI, if there is a net decrease in Partnership Minimum Gain or in any
Partner Minimum Gain during any Fiscal Year or other petiod, prior to any
other allocation pursuant hereto, cach Member shall be specially allocated
items of the Company's Profits for such Fiscal Year (and, if necessary,
subsequent Fiscal Years) in an amount and manner required by Treasury
Regulation SS l.704-2(f) or l.704-2(i)(4). The items to be so allocated shall
be determined in accordance with Treasury Regulation S 1.704-2.
B. Qualified Income Offset. Any Member who unexpectedly receives an
adjustment, allocation or distribution described in Treasury Regulation S
1.704-I(b)(2)(Ii)(d)(4), (5) or (6) which causes or increases a negative balance
in his Capital Account shall be allocated items of Profits sufficient to eliminate
such increase or negative balance caused thereby, as quickly as possible, to the
extent required by such Treasury Regulation.
C. Special Income Allocation. In the event any Member bas an Adjusted Capital
Account Deficit, each such Member shall be specially allocated items of the.
Company's Profits in the amount of such excess as quickly as possible;
provided however, that an allocation pursuant to this Section 3 shall be made
only if and to the extent that such Member would have an Adjusted Capital
Account Deficit after all other allocations provided for in this Agreement have
been tentatively made as if this Section 3 was not in this Agreement.
D. Nonrecourse Deductions. Nonrecourse Deductions for any Fiscal Year or
other period of the Company shall be allocated (as nearly as possible) among
the Members pro rata in proportion to their respective Sharing Interests.
E. Partner Nonrecourse Deductions. Any Partner Nonrecourse Deductions for
any Fiscal Year or other period shall be allocated to the Member that made,
guaranteed or is otherwise liable with respect to the loan to which such Partner
Nonrecourse Deductions are attributable in accordance with principles under
Treasury Regulation S 1.704-2(i).
F. Section 704!b) Limitation. No allocation of Losses or Net Loss, or items
thereof, shall be made to any Member if as a result of such aJlocation, such
Member would have an Adjusted Capital Account Deficit. Any such
disallowed allocation shall be made to the Members entitled to receive such
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allocation under the Section 704(b) Regulations in proportion to their
respective Sharing Interests.
xv
MISCELLANEOUS PROVISIONS
15.1 Inurement. This Agreement shall be binding upon the parties hereto and their
respective heirs, executors, administrators, successors, and assigns, and each person entering into
this Agreement acknowledges that this Agreement constitutes the sole and complete representation
made to him or her regarding the Company, its purpose and business, and that no oral or written
representations or warranties of any kind or nature have been made regarding the proposed
investments, nor any promises, guarantees, or representations regarding income or profit to be
derived from any future investment.
15,2 Modifirntion.. This Agreement may be modified from time to time as ~sary only
by the written agreement of the Company, acting through the vote or consent of its Managers, and
the Members.
15.3 Severability, The provisions of this Agreement are severable and separate, and if
one or more is voidable or void by statute or rule of law, the remaining provisions shall be severed
therefrom and shall remain in full force and effect.
15.4 Governing law. :rhis Agreement and its term are to be construed according to the
laws of the State of Colorado,
15.5 CounteI:Part.~, This Agreement has been executed in counterparts and each such
. counterpart shall be deemed an original of the Agreement for all purposes.
15.6 Attorn~'s Fee.~. In the event of dispute, the prevailing party shall be awarded
reasonable attorney's fees and costs incurred. Legal fees incurred in the negotiation and entering.
into of the' option for the Property and this Operating Agreement shall be an expense of the
Company.
15.7 Changes to Project. In the event that a purchaser of the residence being developed
by the Company requires any changes, such changes shall not be done if it affects the cost or profit
margins unless both Managing Manager and Vice-Managing Manager agree and once both parties
agree, Managing Manager (but not the Company) shall be entitled to charge the purchaser a
reasonable contractor's fee for such changes. Managing Manager agrees that changes requested
by a purchaser shall be done without any contractor's fee if such is reasonably necessary to
consummate the sale.
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IN WITNES~ WHEREOF, we have hereunto set our hands and seals on the day first written
above, in Aspen, Colorado.
Mditional Signature Lines to Follow on Page 22
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COMPANY:
ON CREEK CLUB, LLC
Richard A ax, Manager
~~
Jack DeBoer, Vice Managing Mana
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