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HomeMy WebLinkAboutLand Use Case.1000 S Mill St.0034.2004.ASLU r' ...../ '"" ,.... City of Aspen Community Development Dept. CASE NUMBER 0034.2004.ASL U PARCEL ID# 2737-182-02-201 CASE NAME Top of Mill Sub Exemption PROJECT ADDRESS 1000 S Mill PLANNER James Lindt CASE DESCRIPTION Subd Exemption, 3 New Townhomes REPRESENTATIVE Top of Mill Investors LLC DATE OF FINAL ACTION OS/28/04 CITY COUNCIL ACTION PZ ACTION ADMIN ACTION Plat recorded pages 23-24, Book 69 BOA ACTION DATE CLOSED 06/01104 BY D DRISCOLL Subdivision Exemption 1000 S Mill St —= 37-182-02-201 case 0034.2004.ASI.0 s u 116 COMMUNITY DEVELOPMENT DEPARTMENT 130 South Galena Street Aspen, Colorado 81611 (970) 920-5090 City of Aspen Land Use: 131041 Deposit 131042 Flat Fee U Z 131043 HPC 131046 Zoning and Sign Referral Fees: 151163 City Engineer f 251205 Environmental Health 237001 Housing Building Fees: 211071 Board of Appeals 211072 Building Permit 211073 Electrical Permit 211074 Energy Code Review 211075 Mechanical Permit 211076 Plan Check 211077 Plumbing Permit 211078 Reinspection 211079 Aspen Fire Other Fees: 111006 Copy 111165 Remp Fee 601303 GIS Fee 231480 Housing Cash in Lieu 111165 Open Space Cash in Lieu Park Dedication Parking Cash in Lieu School District Land Ded. Code Sales (Joint) Contractor Licensing (Joint) TOTAL NAME: ADDRESS/PROJECT: PHONE: CHECK# CASE/PERMIT#: # OF COPIES: DATE: INITIAL: Permit Receipt RECEIPT NUMBER 11683 Applicant: TOP OF MILL INVESTORS, LLC Payee: June 2004 Type: check # 2644 Permit Number Fee Description 0034.2004.ASLU 0034.2004.ASLU Aspen Land Use App Fees 2004 Aspen Engineering Minor 2004 Date, 51/271/2004 Total: Amount 302.00 185.00 487.00 City of Aspen Community Development Dept. CASE NUMBER PARCEL ID# CASE NAME PROJECT ADDRESS PLANNER 0034.2004.ASLU 2737-182-02-201 Top of Mill Sub Exemption 1000 S Mill James Lindt CASE DESCRIPTION Subd Exemption, 3 New Townhomes REPRESENTATIVE Top of Mill Investors LLC DATE OF FINAL ACTION 05/28/04 CITY COUNCIL ACTION PZ ACTION ADMIN ACTION Plat recorded pages 23-24, Book 69 BOA ACTION DATE CLOSED 06/01/04 BY D DRISCOLL Fend friornWon Master PetrAk Roving Queue %aslu project i Status f�e Description EXEMPTION - 3 NEW TOVINHOMES S,"ta,j ToP4 MILL 925-2114 cimk Days 5 T V,zible on the web? Pemot V 30872 ApOW pg�7564 Approved F-_j Issued Final Expires FM-7rM �UeO 0 SS IMLI LEL S T Lwt Name 1TOP OF MILL INVESTORS. j Fir;;tNamF Ph. ASPEN CO 91611 4 Owrvl3Ap*arA? ........... - - LaON&rne TOP OF MILL INVESTO 2, R0 Nam h000 S MIL ST I 'ASPEN CO 81611 Phase f(9id) 925.2114 C ust tt _2 130 S. Galena St. Aspen CO 81611 (970) 920-5090 (970) 920-5439, fax To: Chris LaCroix From: James Lindt Fax: 925-3008 Pages: Phone: Date: 5/28/04 Re: Top of Mill Condo Plat CC: ❑ Urgent ❑ For Review ❑ Please Comment ❑ Please Reply ❑ Please Recycle • Comments: Hi Chris, The Top of Mill Townhomes Plat was recorded today in the Clerk and Recorder's Office at Book 69, Pages 23 and 24; Reception # 498156. Thanks, James P. 01 TRANSACTION REPORT MAY-17-2004 MON 01:25 PM DATE START RECEIVER TX TIME PAGES TYPE NOTE M# DP MAY-17 01:24 PM 99253008 16" 0 SEND COM E-17 822 001 01:24 PM 40" 2 SEND OK 822 001 TOTAL 56S PAGES: 2 130 S. Galena St. Aspen CO 81611 (970) 920-5090 (970) 920-5439, fax 'To: Chris LaCroix —� From; James Lindt Fax: 925-3008 .. phone• Date: 5/17/04 Re: Comments on Top of Mill Plat cc; Urgent U For Review ❑ Please Comment C] Please Reply • Comments: 0 Please Recyclo 130 S. Galena St. Aspen CO 81611 (970) 920-5090 (970) 920-5439, fax To: Chris LaCroix From: James Lindt Fax: 925-3008 Pages: Phone: Date: 5/17/04 Re: Comments on Top of Mill Plat CC: ❑ Urgent ❑ For Review ❑ Please Comment ❑ Please Reply ❑ Please Recycle • Comments: MEMORANDUM To: Chris LaCroix From: James Lindt, Planner Date: May 17, 2004 Re: Parcel 1, Top of Mill Plat- Community Development Department's Comments Please make the following changes to the draft plat that you submitted for review: Amend Plat Title (including title on bottom of plat in the page index box) on every sheet to read, "Subdivision Exemption Plat of Top of Mill Townhomes Common Interest Community, Parcel 1, Top of Mill Subdivision/PUD". 2. Amend signature blocks (Community Development Director, Community Development Engineer, Surveyor's Certificate, Clerk and Recorder's Certificate) to indicate that the plat is a subdivision exemption plat rather than a subdivision plat as the draft plat identifies. 3. Indicate snow storage location. 4. Change the City Engineer's signature block to the Community Development Engineer's signature block. 5. Obtain all signatures with the exception of the City Community Development Director, Community Development Engineer, and Pitkin County Clerk and Recorder prior to submitting two (2) sets of mylars to the Community Development Department. Additionally, please submit a recording fee of $11 for the first sheet and $10 for each additional sheet to be recorded with the Mylars that is payable to the Pitkin County Clerk and Recorder's Office. 6. When submitting the plat, please include a completed version of the City of Aspen Land Use Application Form, Fee Agreement Form, and review fee of $487 (payable to the City of Aspen). APPLICANT: Name: Location Parcel ID # (REQUIRED) REPRESENTATIVE: ATTACHMENT 2 —LAND USE APPLICATION ndicate street address, lot & block tuber, legal description w appropriate) Name: Address: Phone #: PROJECT: 11 Name:trl C�� e 0A I lA A �jj Address: c%/S �j t �-, C /9 • rYJ // 5�' �ruJ i G4 i^���o Z t' Phone 92,r- Z // TYPE OF APPLICATION. (please theck all that apply): ❑ Conditional Use ❑ Conceptual PUD ❑ Conceptual Historic Devt. ❑ Special Review ❑ Final PUD (& PUD Amendment) ❑ Final Historic Development ❑ Design Review Appeal ❑ Conceptual SPA ❑ Minor Historic Devt. ❑ GMQS Allotment ❑ Final SPA (& SPA Amendment) ❑ Historic Demolition ❑ GMQS Exemption ❑ Subdivision ❑ Historic Designation ❑ ESA - 8040 Greenline, Stream Subdivision Exemption (includes ❑ Small Lodge Conversion/ Margin, Hallam Lake Bluff, condom ini um ization) Expansion Mountain View Plane ❑ Lot Split ❑ Temporary Use ❑ Other: ❑ Lot Line Adjustment ❑ Text/Map Amendment EXISTING CONDITIONS: (description of existing buildings, uses, previous approvals, etc.) 3 /- le -, -) -7'�, h � � -KUFUNAL: (aescription of proposed buildings, uses, modifications, etc.) Have you attached the following? FEES DUE: S00 ❑ Pre -Application Conference Summary ❑ Attachment 91, Signed Fee Agreement ❑ Response to Attachment 93, Dimensional Requirements Form RFalN s". R PERM ❑ Response to Attachment 44, Submittal Requirements- Including Written Responses to Review Standards All plans that are larger than 8.5" x 11" must be folded and a floppy disk with an electronic copy of all written text (iiNlicrosoft Word Format) must be submitted as part of the application. ��F ASPEN COMMUNITY DEVELOPMENT 2004 LAND USE APPLICATION FEES CATEGORY HOURS DEPOSIT FLAT FEE Major 12 2,620.00 Minor 6 1,310.00 Staff Approvals 546.00 Flat Fee `302.06 Board of Adjustment 1D Exempt HPC 00.00 Certificate of No Negative Effect 312.00 Minor HPC 546.00 Significant HPC <1000 sq. ft. 1310.00 Significant HPC >1000 sq. ft. 2620.00 Demolition, Partial Demolition, Relocation 2620.00 Certificate of Appropriateness (Amendment) 546.00 Appeals 546.00 Referral Fees - Environmental Health Major 355.00 Minor 185.00 Referral Fees - Housing Major 355.00 Minor 185.00 Referral Fees - City Engineer Major Minor ,a55.00 185 00 . Hourly Rate 210.00 CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT Agreement for Payment of Citv of Aspen Development Application Fees CITY OF ASPEN (hereinafter CITY) and (hereinafter APPLICANT) AGREE AS FOLLOWS: APPLICANT has submitted to CITY an application for (hereinafter, THE PROJECT). 2. APPLICANT understands and agrees that City of Aspen Ordinance No. 57 (Series of 2000) establishes a fee structure for Land Use applications and the payment of all processing fees is a condition precedent to a determination of application completeness. 3. APPLICANT and CITY agree that because of the size, nature or scope of the proposed project, it is not possible at this time to ascertain the full extent of the costs involved in processing the application. APPLICANT and CITY further agree that it is in the interest of the parties that APPLICANT make payment of an initial deposit and to thereafter permit additional costs to be billed to APPLICANT on a monthly basis. APPLICANT agrees additional costs may accrue following their hearings and/or approvals. APPLICANT agrees he will be benefited by retaining greater cash liquidity and will make additional payments upon notification by the CITY when they are necessary as costs are incurred. CITY agrees it will be benefited through the greater certainty of recovering its full costs to process APPLICANT'S application. 4. CITY and APPLICANT further agree that it is impracticable for CITY staff to complete processing or present sufficient information to the Planning Commission and/or City Council to enable the Planning Commission and/or City Council to make legally required findings for project consideration, unless current billings are paid in full prior to decision. 5. Therefore, APPLICANT agrees that in consideration of the CITY's waiver of its right to collect full fees prior to a det in t' o . application completeness, APPLICANT shall pay an initial deposit in the amount of $ �Z ics hours of Community Development staff time, and if actual recorded costs exceed the initial deposit, APPLICANT shall pay additional monthly billings to CITY to reimburse the CITY for the processing of the application mentioned above, including post approval review at a rate of $205.00 per planner hour over the initial deposit. Such periodic payments shall be made within 30 days of the billing date. APPLICANT further agrees that failure to pay such accrued costs shall be grounds for suspension of processing, and in no case will building permits be issued until all costs associated with case processing have been paid. CITY OF ASPEN APPLICANT By: Julie Ann Woods Community Development Director g:\support\forms\agrpayas.doc 1/10/01 By: : Date: '-I;;- I o Mailing Address: ROM 910cf-P)COV b :. 9� `6 y 7 t EXECUTION C Y SUBDIVISION/PUD AGREEMENT FOR TOP OF MILL SUBDIVISION/PUD THIS SUBDIVISION/PUD AGREEMENT ("Agreement") is made and entered this day of August 2002, by and between the CITY OF ASPEN, COLORADO, a Colorado municipal corporation ("City") and TOP OF MILL INVESTORS, LLC, a Delaware limited liability company ("TOMI"). RECITALS WHEREAS, the City and Savanah Limited Partnership, a Delaware limited partnership ("Savanah"), are parties to that certain First Amended and Restated Planned Unit Development/Subdivision Agreement Aspen Mountain Subdivision ("First Amended PUD Agreement") dated October 3, 1988 and recorded in the records of Pitkin County, Colorado, on October 3, 1988 in Book 574 at Page 792, as the same has been amended as hereinafter more particularly set forth; and WHEREAS, on January 11, 2001 TOMI acquired from Savanah certain real property situated within the Aspen Mountain Subdivision, which real property is also situated within the municipal boundaries of the City known as Lot 3, First Amended Plat Aspen Mountain Subdivision and Planned Unit Development, according to the Plat thereof filed October 3, 1988 in Plat Book 21 at Page 35 ("Top of Mill"); and WHEREAS, the First Amended PUD Agreement directs that at such time as Top of Mill receives final PUD development approval, a PUD Agreement shall be executed by the parties setting forth such final approvals and incorporating all conditions and assurances that may be reasonably required by the City in connection therewith; and WHEREAS, TOMI has submitted to the City an Application for Final PUD Development Plan Approval (the "Application") pursuant to the June 1996 reprint of Title 26, Land Use Regulations of the 1995 Aspen Municipal Code (the "1996 Code") including approval, execution and recordation of a Final Plat for Top of Mill (the "Final Plat"); and WHEREAS, the City has fully considered the Application and the Final Plat, the proposed development and improvement of Top of Mill contained therein, and the effects of the proposed development and improvement of said lands on adjoining or neighboring properties and property owners; and WHEREAS, the City has imposed certain conditions and requirements in connection with its approval, execution and recordation of the Final Plat, such matters being necessary to protect, promote and enhance the public welfare; and 38181-16 4711(DO Page: I of 47 08//16/2002 02:2 'r SILVIA DAVIS PITKIN COUNTY CO R 235.00 0 0.00 EXECUTION COPY WHEREAS, TOMI is willing to acknowledge, accept, abide by and faithfully perform the conditions and requirements imposed by the City in approving the Application and the Final Plat; and WHEREAS, under the authority of Sections 26.84.040(C and D) and 26.88.050(C and D) of the 1996 Code, the City is entitled to certain financial guarantees to ensure that (i) the required public facilities are installed and (ii) the required landscaping is installed and maintained, and TOMI is prepared to provide such guarantees as hereinafter set forth. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained herein, the approval, execution and acceptance of the Final Plat for recordation by the City, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: ARTICLE 1 PURPOSE AND EFFECT OF AGREEMENT 1.1 Prior Amendments to the First Amended PUD Agreement. The parties acknowledge and agree that the First Amended PUD Agreement has previously been amended by the following, which shall hereinafter be collectively referred to as the "Section M Amendments": (a) June 1990 Section M Amendment. (b) June 1991 Section M Amendment. (c) August 1992 Section M Amendment. (d) October 1992 Section M Amendment. (e) February 1993 Section M Amendment. (f) June 1995 Section M Amendment (Ordinance No. 33-95). (g) May 1998 Section M Amendment (Ordinance No. 8-98). (h) September 1999 Section M Amendment (Ordinance No. 38-99). (i) December 2000 Section M Amendment (Ordinance No. 53-00). 0) June 2002 Section M Amendment (Ordinance No. 15-02). 38181-16 2 471100 Page: 2 of 47 08/16/2002 02:27P SILVIA DAVIS PITKIN COUNTY CO R 235.00 0 0.00 EXECUTION COPY 1.2 Purpose of this Agreement. This Agreement is executed by the parties in accordance with the requirements of the First Amended PUD Agreement, as amended by the Section M Amendments, that a new PUD Agreement be executed at the time of final development approval for Top of Mill. The purpose of this Agreement is to set forth the complete and comprehensive agreement between the parties with respect to the development that has been approved for Top of Mill and to enumerate all terms and conditions under which such development may occur. The effect of this Agreement is to terminate, supersede and replace all provisions of the First Amended PUD Agreement and the Section M Amendments, which relate in any manner to Top of Mill. In the event of any inconsistency between the provisions of this Agreement and the provisions of the First Amended PUD Agreement, as amended by the Section M Amendments, the provisions of this Agreement shall control. Nothing in this Agreement modifies, revokes, amends or affects any provision of the First Amended PUD Agreement, as amended by the Section M Amendments, which relates to Lot 1, 2, 4, 5 or 6 of the Aspen Mountain Subdivision/PUD, unless expressly revoked or modified hereby. All provisions of the First Amended PUD Agreement, as amended by the Section M Amendments, which relate to Lots 1, 2, 4, 5 and 6 of the Aspen Mountain Subdivision/PUD, shall remain in frill force and effect, except to the extent they may be otherwise amended. ARTICLE 2 DEVELOPMENT REQUIREMENTS AND RESTRICTIONS 2.1 Zoning and Regulatory Approvals. (a) Resolution and Ordinance of Approval. Conceptual PUD development plan approval for Top of Mill was granted by the Aspen City Council in Resolution No. 99-93, approved and adopted on December 6, 1999. By adoption of Resolution No. 01-50, adopted on May 29, 2001, the Aspen City Council granted amended conceptual PUD Development Plan approval for Top of Mill, which is to be subdivided into eight (8) development parcels, two (2) open space parcels and a parcel of approximately 2,745 square feet containing an existing parking garage ("Parcel 9") for the benefit of Lot 2, Aspen Mountain Subdivision/PUD, known as the Summit Place Condominiums. By adoption of Ordinance No. 7, Series of 2002, adopted on March 11, 2002 and recorded April 19, 2002 as Reception No. 466392 ("Ordinance No. 7"), the Aspen City Council granted Final PUD Development Plan and Subdivision Approval for Top of Mill. Ordinance No. 7 also granted (i) a growth management quota system exemption for the affordable housing units to be constructed on Parcel 2, Top of Mill; (ii) rezoning of that portion of Top of Mill previously zoned R-15 (PUD) (L), Moderate -Density Residential, Planned Unit Development, Lodge Overlay and a portion of Top of Mill zoned C, Conservation to L/TR (PUD), Lodge/Tourist Residential, Planned Unit Development; (iii) Condominiumization, Mountain View Plane, Special Review, and 8040 Greenline Review; and (iv) approval to construct an Accessory Dwelling Unit ("ADU") on Parcel 3 of Top of Mill. The exterior boundaries of the eight (8) development parcels, two (2) open space parcels and Parcel 9 are depicted on the Final Plat for Top of Mill which will be recorded contemporaneously with this Agreement. The Final Plat for Top of Mill also depicts the allowed building set backs within the eight (8) 38181-16 471 100 Page: 3 of 47 08/16/2002 02:27F SILVIA DAVIS PITKIN COUNTY CO R 235.00 D 0.00 EXECUTION COPY development parcels. TOMI shall convey Parcel 9 to the Summit Place Condominium owners association immediately after the Final Plat for Top of Mill is recorded and, upon such conveyance, Parcel 9 shall not be covered by, or subject to this Agreement except as set forth in Paragraphs 2.1(b)(ii) and (iii) and 2.2(hh) below. The instrument by which TOMI conveys Parcel 9 shall contain a restriction to ensure that Parcel 9 will always serve to provide parking for the benefit of Lot 2, Aspen Mountain Subdivision and that development on Parcel 9 shall be limited to the existing garage and trash storage structures or any replacement thereof. Pursuant to Section 26.304.060.13 of the April 2000 reprint of Title 26, Land Use Regulations of the 1995 Aspen Municipal Code, the Community Development Director, in consultation with TOMI, permitted and directed a modification in review procedures to combine Final PUD Development Plan, Subdivision, Condominiumization, Mountain View Plan, Special Review, GMQS Exemption, 8040 Greenline Review and Rezoning Review for the purposes of ensuring economy of time and clarity. This Agreement incorporates all the provisions of Ordinance No. 7. To the extent of any conflict between the terms of this Agreement and the provisions of Ordinance No. 7, this Agreement shall govern and control. (b) PUD Variations. Pursuant to Ordinance No. 7, the Aspen City Council approved the following variations in the dimensional requirements of the L/TR, Lodge/Tourist Residential and C, Conservation zone districts: (i) Maximum Lot Size. An increase in the maximum lot size for single family and duplex dwelling units. The size of Parcels 3, 4, 5, 6, 7 and 8 shall be as depicted on the Final Plat for Top of Mill to be recorded contemporaneously with this Agreement. (ii) Minimum Lot Size. A reduction in the minimum lot size requirement. The size of Parcel 9 and Open Space Parcel B shall be as depicted on the Final Plat for Top of Mill to be recorded contemporaneously with this Agreement. (iii) Minimum Setbacks. A reduction in the minimum setback requirements. The front, side and rear yard setbacks on Parcel 9 shall be as depicted on the Final Plat for Top of Mill to be recorded contemporaneously with this Agreement. (c) Parking, 8040 Greenline and Mountain Viewplane Approval. Pursuant to Ordinance 7, the Aspen City Council granted (i) special review approval of the off-street parking requirements for the affordable housing units approved for development on Parcel 2, Top of Mill, (ii) 8040 greenline approval for Parcels 1, 2 and 3, Top of Mill and (iii) mountain viewplane approval for all development parcels on the Top of Mill. The development of the free market single-family dwellings proposed for Parcels 4 - 8 shall be subject to a site and design specific 8040 Greenline Review prior to their development. These Parcels shall only be required to respond to review standards 26.68.030 (C)(3) and 26.68.030 38181-16 4 471100 Page: 4 of 47 08/16/2002 02:27F SILVIA DAVIS PITKIN COUNTY CO R 235.00 D 0.00 EXECUTION COPY (C)(7) of the 1996 Code. Ordinance No. 7 approves Parcels 4- 8 regarding 8040 Greenline Review Standards 26.68.030 (C)(1, 2, 4, 5, 6, 8, 9, 10, and 11) of the 1996 Code thereby precluding any further review of such standards. (d) Vested Rights. In accordance with the requirements of C.R.S. 24-68-103(b) a properly noticed public hearing concerning the establishment of vested property rights for Top of Mill was conducted on March 11, 2002. As authorized by C.R.S. 24-68-102(4)(a), City and TOMI hereby agree that the Final Plat, the Top of Mill Final PUD Development Plan and all other documents recorded contemporaneously therewith, collectively constitute the site specific development plan as used in Article 68, Title 24, C.R.S., for Top of Mill. In accordance with applicable provisions of Ordinance No.7, Series of 2001, the City has granted vested property rights for a period of three (3) years from the date of approval of Ordinance No. 7, for the development of Top of Mill in accordance with the documents which are herein agreed to constitute the site specific development plan for Top of Mill. 2.2 Development Approvals. Top of Mill has been approved for subdivision into eight (8) development parcels, identified on the Final Plat and throughout this Agreement as Parcels 1, 2, 3, 4, 5, 6, 7 and 8, two (2) open space parcels which are identified as Open Space Parcels A and B on the Final Plat, and Parcel 9 which is identified as Parcel 9 on the Final Plat. The eight (8) development parcels on Top of Mill may be developed as follows: (a) Development on Parcel 1. Approval is hereby granted for the development of six (6) free market, four -bedroom, multi -family townhouse units on Parcel 1. Such units shall be contained in two (2) separate triplex structures. Each individual townhouse unit shall contain no more than 4,500 square feet of floor area. Development on Parcel 1 is limited to a maximum allowable floor area of 27,000 square feet. TOMI shall further subdivide Parcel 1 by the creation of a common interest community. Prior to the conveyance of any interest in Parcel 1, a common interest community plat for either a condominium or planned community (as determined by TOMI) shall be duly recorded. TOMI shall record the approved condominium (or planned community) subdivision plat for Parcel 1 in the office of the Pitkin County Clerk and Recorder within one hundred eighty (180) days of its approval by the Community Development Director. If TOMI fails to record the approved plat within one hundred eighty (180) days following approval by the Community Development Director, the plat shall be invalid and TOMI shall be required to submit a new plat to the Community Development Director for approval. (b) Development on Parcel 2. Approval is hereby granted for the development of four (4) affordable housing units on Parcel 2. Such units shall be contained within a single multifamily structure. Three (3) of said units shall be three -bedroom units, each having no less than 1550 square feet of net livable area and the fourth unit shall be a four -bedroom unit having no less than 1870 square feet of net livable area; provided, however, that the actual amount of net livable area in each unit shall be determined at the time of building permit application. Development on Parcel 2 is limited to a maximum allowable floor area of 8,000 square feet. TOMI shall further subdivide Parcel 2 by the creation of a common interest 38181-16 5 471100 Page: 5 of 47 08/16/2002 02:27F SILVIA DAVIS PITKIN COUNTY CO R 235.00 0 0.00 EXECUTION COPY community. Prior to the conveyance of any interest in Parcel 2, a common interest community plat for either a condominium or planned community (as determined by TOMI) shall be duly recorded. TOMI shall record the approved condominium (or planned community) subdivision plat for Parcel 2 in the office of the Pitkin County Clerk and Recorder within one hundred eighty (180) days of its approval by the Community Development Director. If TOMI fails to record the approved plat within one hundred eighty (180) days following approval by the Community Development Director, the plat shall be invalid and TOMI shall be required to submit a new plat to the Community Development Director for approval. The affordable housing units to be developed on Parcel 2 shall comply with all representations made by TOMI in connection with the Application and comply with the deed restrictions administered by APCHA. A master owner's association for Top of Mill to be known as "Top of Mill Master Association", or such other name determined by TOMI (the "Master Association") will be formed as a master association to exercise the functions set forth in the Master Declaration of Protective Covenants of Top of Mill (the "Master Declaration") and to own, lease, hold, operate, care for and manage certain property for the common benefit of owners of the Parcels within Top of Mill. A separate owners association shall be created for the affordable housing units on Parcel 2, which shall participate in, and be subject to the Master Association and Master Declaration. The Master Declaration shall provide that all annual and special assessments under the Master Declaration shall be allocated 1/17th to each of the four (4) affordable housing units on Parcel 2, and that until such time as the units are constructed, Parcel 2 shall be allocated 4/17t' of all annual and special assessments. In addition, there will be a separate assessment for maintenance, repair, replacement or improvements to Top of Mill Street (the private road shown on the Final Plat) and the sidewalks within Top of Mill (the "Private Road Assessment"). Six percent (6%) of the Private Road Assessment shall be allocated to Parcel 2 (i.e., 1.5% per unit for each of the four (4) affordable housing units on Parcel 2). Notwithstanding the foregoing allocations, the Master Declaration shall provide that annual and special assessments and Private Road Assessments against any affordable housing unit on Parcel 2 shall not exceed one thousand dollars ($1000.00) per unit per year. (i) Affordability of Parcel 2 Units. The four (4) affordable housing units approved for development on Parcel 2 completely satisfy all requirements of the City's Multifamily Housing Replacement Program with respect to the demolition of multi -family dwelling units on all of (i.e., Lots 1, 2, 3, 4, 5 and 6) the Aspen Mountain Subdivision/PUD. TOMI shall meet with APCHA to maintain the average price of the of the four (4) affordable housing units approved for development on Parcel 2 to APCHA Category 2, but to price one of the three bedroom units shall be priced between Category 1 and 2, and the price of the 4-bedroom unit shall be between Category 2 and 3, but marketed and sold as a Category 3 unit. Three of the four units on Parcel 2 shall be distributed and sold under the general lottery through APCHA. TOMI shall be able to choose a buyer for one of the units (and designate the unit to be purchased). However, the buyer chosen by TOMI must be a fully qualified employee under the category for the unit chosen; i.e., the potential buyer 38181-16 6 471100 080/16/2002 02:27r SILVIR DAVIS PITKIN COUNTY CO R 235.00 0.0 D 0 EXECUTION COPY must meet income and asset requirements, meet minimum occupancy requirements, not own any other property in the Roaring Fork Drainage System, and have worked in Pitkin County 1500 hours per year for the previous four years. At the time a Certificate of Occupancy is issued for any affordable housing unit constructed on Parcel 2, APCHA shall have the right to conduct a site visit. (c) Development on Parcel 3. Approval is hereby granted for the development of two (2) free market dwelling units on Parcel 3. Such units shall be contained within one (1) duplex structure. Each dwelling unit within the duplex structure may contain a maximum of four bedrooms and no more than 4,500 square feet of floor area. Development on Parcel 3 is limited to a maximum allowable floor area of 9,000 square feet. TOMI shall further subdivide Parcel 3 by the creation of a common interest community. Prior to the conveyance of any interest in Parcel 3, a common interest community plat for either a condominium or planned community (as determined by TOMI) shall be duly recorded. TOMI shall record the approved condominium (or planned community) subdivision plat for Parcel 3 in the office of the Pitkin County Clerk and Recorder within one hundred eighty (180) days of its approval by the Community Development Director. If TOMI fails to record the approved plat within one hundred eighty (180) days following approval by the Community Development Director, the plat shall be invalid and TOMI shall be required to submit a new plat to the Community Development Director for approval. (i) Accessory Dwelling Unit on Parcel 3. One (1) of the units within the duplex structure approved for development on Parcel 3 shall contain an ADU or the owner of Parcel 3, at its election, shall make a cash in lieu payment thereof. The ADU shall be deed restricted and constructed in accordance with the City's ADU regulations under the 1996 Code. At the time a Certificate of Occupancy is issued for the ADU, APCHA shall have the right to conduct a site visit. If the owner of parcel 3 elects not to construct the ADU, a cash in lieu payment shall be made in accordance with the City's ADU regulations in effect at the time of building permit issuance. (d) Development on Parcel 4. Approval is hereby granted for the development of one (1) detached, free market single family residence on Parcel 4. Development on Parcel 4 is limited to a maximum allowable floor area of 6,200 square feet, which shall include the ADU if constructed at the owner's election under Section 2.2(i), below. (e) Development on Parcel 5. Approval is hereby granted for the development of one (1) detached, free market single family residence on Parcel 5. Development on Parcel 5 is limited to a maximum allowable floor area of 5,200 square feet, which shall include the ADU if constructed at the owner's election under Section 2.2(i), below. (f) Development on Parcel 6. Approval is hereby granted for the development of one (1) detached, free market single family residence on Parcel 6. Development on Parcel 6 38181-16 7 471100 page: 7 of 47 08/16% 002 02:27F ,tc vTTKIN COUNTY CO R 235.00 D 0.00 EXECUTION COPY is limited to a maximum allowable floor area of 5,200 square feet, which shall include the ADU if constructed at the owner's election under Section 2.2(i), below. (g) Development on Parcel 7. Approval is hereby granted for the development of one (1) detached, free market single family residence on Parcel 7. Development on Parcel 7 is limited to a maximum allowable floor area of 6,500 square feet, which shall include the ADU if constructed at the owner's election under Section 2.2(i), below. (h) Development on Parcel 8. Approval is hereby granted for the development of one (1) detached, tree market single family residence on Parcel 8. Development on Parcel 8 is limited to a maximum allowable floor area of 6,500 square feet, which shall include the ADU if constructed at the owner's election under Section 2.2(i), below. (i) Accessory Dwelling Units on Parcels 4, 5, 6, 7 and 8. Each of the single family detached units approved for construction on Parcels 4, 5, 6, 7 and 8 shall contain an ADU, or the owner of each Parcel, at his election, shall make a cash in lieu payment thereof. The decision whether to construct an ADU or make a cash in lieu payment may be made on a parcel -by -parcel basis. If an ADU is constructed, it shall be approved, deed restricted and in every other respect constructed in accordance with the City's ADU regulations in effect at the time of building permit application for each structure. If a cash in lieu payment is made, it shall be made in accordance with the City's ADU regulations in effect at the time of issuance of the applicable building permit. If an ADU is constructed on any Parcel, at the time a Certificate of Occupancy is issued for the ADU, APCHA shall have the right to conduct a site visit. 0) Exemption from GMQS. The thirteen (13) free market units approved for development on Top of Mill as hereinabove described are exempt from the City's growth management quota system as the development rights for such units are derived from the 47 residential development rights held by TOMI under the First Amended PUD Agreement. TOMI's construction of the four (4) deed restricted affordable housing units on Parcel 2 and the six (6) ADU's on Parcels 3-8 (or payment of cash in lieu thereof from the owners of Parcels 3-8), shall constitute compliance with all applicable City regulations with respect to the demolition and reconstruction of existing single family, duplex and multi -family residential units on all of (i.e., Lots 1, 2, 3, 4, 5 and 6) the Aspen Mountain Subdivision/PUD. No further affordable housing shall be required in connection with the development of Top of Mill as approved in this Agreement. It is understood that upon recording of this Agreement and recording of the Subdivision/PUD Agreement for Lot 5, Aspen Mountain Subdivision/PUD, no residential credits associated with the Aspen Mountain Subdivision/PUD will remain (it being understood that all remaining residential credits associated with the Aspen Mountain Subdivision/PUD will have been used in connection with Top of Mill and said Lot 5. Aspen Mountain Subdivision/PUD). 38181-16 8 47110@ Page: 8 of 47 SILVIA DgVIS PITKIN COUNTY CO R 235.00 /16/2002 2:27P EXECUTION COPY (k) Calculation of Floor Area. The calculation of allowable floor area for all structures and units approved for development on Top of Mill shall be made in accordance with the City's floor area regulations in effect at the time of the building permit application for each particular structure; provided, however, the maximum allowable floor areas set forth in this Agreement shall not be reduced (i.e., all required adjustments for calculating allowable floor area, such as steep slopes, easements, etc., have already been considered in determining the floor areas set forth in this Agreement). (1) Parking. A minimum of twelve (12) off-street parking spaces shall be provided on Parcel 1; eight (8) off-street parking spaces shall be provided on Parcel 2; four (4) off-street parking spaces shall be provided on Parcel 3; and two (2) off-street parking spaces shall be provided on each of Parcels 4 - 8. (m) Common Access Driveway, Access Road and Sidewalk, Curb and Gutter. (i) Common Access Driveway. Vehicular access to the townhouse units on Parcel 1 shall be from a common driveway from Mill Street. TOMI shall be responsible to construct the Parcel 1 common driveway in connection with the construction of any improvement on Parcel 1. After completion of construction of the common driveway, all costs associated with the maintenance and repair, including snowplowing, of the common driveway shall be paid by the owners of the units located on Parcel 1. (ii) Access Road. Vehicular access to Parcels 2 through 8 shall be from a private road, identified on the Final Plat as "Top of Mill Street", to be extended from the existing terminus of South Mill Street. TOMI has dedicated on the Final Plat, for the benefit of owners of Parcels 2 through 8, their guests and invitees, a perpetual non-exclusive easement for all ingress and egress purposes upon Top of Mill Street. TOMI shall be responsible for the construction of Top of Mill Street as a subdivision improvement in accordance with Section 2.3 of this Agreement. After completion of said construction, all costs associated with the maintenance and repair, including snowplowing, of Top of Mill Street, shall be paid by owners of Parcels 2 through 8. (iii) Sidewalk, Curb and Gutter. TOMI shall install a sidewalk along the west side of Mill Street between Summit Street and the entrance to Top of Mill Street. TOMI shall install a curb and gutter on the west side of Mill Street adjacent to Parcel 1 and along Top of Mill Street. Such improvements shall be installed as subdivision improvements in accordance with Section 2.3 of this Agreement and as shown on the Final PUD Development Plan for Top of Mill to be recorded contemporaneously with the Final Plat and this Agreement. (n) Utilities. TOMI shall install all utilities shown on the Schematic Utility Plan for Top of Mill to be recorded contemporaneously with the Final Plat and this Agreement. 38181-16 9 4711oo Page; 9 of 47 SILVIR DgVIS PITKIN COUNTY CO R 235.00 /16D 0 oe 2.27P EXECUTION COPY All such utilities shall be installed as subdivision improvements in accordance with Section 2.3 of this Agreement. TOMI shall be required to show to the Aspen Consolidated Sanitation District ("ACSD") all service locations at the station numbers on the final utility plans for Top of Mill prior to building permit application. Additionally, TOMI shall indicate to the ACSD if main line easements within any City rights -of -way are to be dedicated by plat or by description. In addition, TOMI shall execute a "Line Extension Request" and a "Collection System Agreement" with ACSD prior to building permit application. Unless otherwise agreed to by TOMI and ACSD: (i) forty percent (40%) of the estimated total connection fees must be paid by TOMI to ACSD at the time service lines are stubbed off the main line into the specific Parcels of Top of Mill and (ii) the remaining balance of the connection fees shall be paid by the owner of the Parcel at the time service is established to such owner's Parcel. (o) Landscaping. TOMI shall install and otherwise implement all landscaping for Parcels 1, 2, 3 and Open Space Parcel A depicted on the approved Landscape Plan, which is to be recorded contemporaneously with the Final Plat and this Agreement. Landscaping for Parcels 4-8 shall be the responsibility of the respective owners of those Parcels. (p) Trail Easements. (i) Top of Mill Trail. The Final Plat vacates the Top of Mill Trail Easement as shown on the First Amended Plat Aspen Mountain Subdivision and Planned Unit Development filed October 3, 1988 in Plat Book 21 at Page 35 (the "First Amended Plat"). The new Top of Mill Trail Easement shall be dedicated to the public for pedestrian purposes, as more fully set forth in that certain Top of Mill Trail Easement Agreement between TOMI and the City of Aspen attached hereto as Exhibit "A-1", to be recorded after: (1) publicly dedicated trails through adjoining lands have been connected up with the easterly and westerly ends of said Top of Mill Trail Easement; (2) the City of Aspen notifies TOMI thereof; and (3) an as -built legal description is available (and provided by TOMI) for the portion of the Top of Mill. Trail Easement lying between the western boundary of Parcels 1 and 8 and the western boundary of Open Space Parcel B (it being understood that the Final Plat merely indicates the general vicinity of the new Top of Mill Trail Easement in that area and that the Top of Mill Trail Easement in that area will be located and aligned after the trail is constructed in that area). The public dedication shall also include the right, on the part of the public, to cross Top of Mill Street in order to utilize the Top of Mill Trail Easement. Until such time as said public dedication shall become effective, TOMI dedicates and sets apart to the Master Association for the exclusive use and benefit of the owners, from time to time, of Parcels 1 through 8, their guests and invitees, for pedestrian purposes, an easement across and through said Top of Mill Trail Easement. Upon conveyance to the Master Association of said Top of Mill Trail Easement and until the public dedication shall become effective, the Master Association shall be: (a) responsible for the maintenance of said trail and (b) entitled 38181-16 10 471100 Page: 10 of 47 08/15/2002 02:27P SILVIA DAVIS PITKIN COUNTY CO R 235.00 0 0.00 EXECUTION COPY to adopt and enforce reasonable rules and regulations concerning the use thereof. TOMI, for itself, its successors and assigns, shall improve the Top of Mill Trail Easement as it lies within Top of Mill by constructing a four -foot (4') wide single track path with underlying matting and a crusher -fine surface; provided, however, that TOMI shall have no obligation to improve that portion of the Top of Mill Trail Easement lying between the Aspen Mountain Trail and the western boundary of Open Space Parcel B unless and until publicly dedicated trails through adjoining lands have been connected up with the easterly and westerly ends of Top of Mill Trail Easement. If TOMI has not improved the Top of Mill Trail Easement as required herein at the time the public dedication becomes effective, TOMI shall deposit into escrow with the City of Aspen sufficient funds, in an amount determined by the City, to pay of the cost of completing said improvements. If said improvements have not been completed within five (5) years of the date this Agreement is recorded, whether due to the fact that publicly dedicated trails through adjoining lands have not been connected up with the easterly and westerly ends of said Top of Mill Trail Easement or otherwise, the funds deposited into escrow by TOMI for this purpose shall be released to the City and TOMI shall thereafter be relieved of any further obligation to improve the Top of Mill Trail Easement. Upon recordation of the Top of Mill Trail Easement Agreement, the portion of the Top of Mill Trail Easement depicted on the Final Plat located between the western boundary of Parcels I and 8 and the western boundary of Open Space Parcel B shall automatically be vacated and replaced by the portion of the Top of Mill Trail Easement in that area described in the Top of Mill Trail Easement Agreement. (ii) Aspen Mountain Trail. The Final Plat vacates the Aspen Mountain Trail as shown on the First Amended Plat. The Aspen Mountain Trail Easement shown on the First Amended Plat will be replaced by a new Aspen Mountain Trail Easement to be located and aligned in the general vicinity depicted on the Final Plat; however, the Aspen Mountain Trail Easement depicted on the Final Plat merely indicates the general vicinity of the new Aspen Mountain Trail Easement. The new Aspen Mountain Trail Easement shall be dedicated to the public for pedestrian and skiing purposes only as more fully set forth in that certain Aspen Mountain Trail Easement Agreement between TOMI and the City of Aspen attached hereto as Exhibit "A-2", to be recorded at a later date (the "Aspen Mountain Trail Easement Agreement"). The Aspen Mountain Trail Easement Agreement shall be recorded after TOMI and the City of Aspen have agreed upon the actual location and alignment for the new Aspen Mountain Trail Easement. After TOMI and the City of Aspen have agreed upon the actual location and alignment for the new Aspen Mountain Trail Easement, TOMI shall provide in recordable form an as -built legal description of said new Aspen Mountain Trail Easement that shall be attached to, and recorded with, the Aspen Mountain Trail Easement Agreement. Upon recordation of the Aspen Mountain Trail Easement Agreement, the Aspen Mountain Trail Easement depicted on the Final Plat shall 38181-16 11 471100 Page: 11 of 47 EXECUTION COPY automatically be vacated and replaced by the Aspen Mountain Trail Easement described in the Aspen Mountain Trail Easement Agreement. (q) Drainage. TOMI shall install the drainage improvements shown on the Grading and Drainage Plan to be recorded contemporaneously with the Final Plat and this Agreement. Drainage improvements shall be installed as a subdivision improvement in accordance with Section 2.3 of this Agreement. In addition, TOMI has granted the City a twenty foot (20') wide utility easement between Parcels 4 and 5 and over Open Space Parcel A as depicted on the Final Plat to be used solely for the purpose of allowing the City to install, maintain and repair a storm drain pipe within said easement, as more fully set forth in that certain Storm Drain Pipe Easement Agreement between TOMI and the City of Aspen attached hereto as Exhibit "B" to be recorded contemporaneously with this Agreement. (r) Air Quality. During all construction activities on Top of Mill, TOMI shall comply with the fugitive dust control specification included as part of the Construction Management Plan that will be submitted prior to building permit issuance. All development within Top of Mill shall comply with the Environmental Health Department's woodburning stove/fireplace regulations in effect at the time of issuance of the applicable building permit. (s) Improvement Districts. On behalf of itself and all future owners of any property within Top of Mill, TOMI hereby agrees to join any future improvement districts that may be formed for the purpose of constructing improvements that benefit the subject property under an assessment formula. To the extent any future improvement districts are formed for storm sewers, storm water retention or slope movement, TOMI shall receive a credit against any amounts that may be assessed against it for amounts paid pursuant to subparagraphs (dd), (ee) or (ff) below. (t) School Land Dedication Fees. The owner of each Parcel shall pay the required School Land Dedication Fee to the City of Aspen, which is due and payable at the time of building permit application for the development of its parcel. This fee shall be assessed at the rate of the regulations and calculations in effect at the time of the building permit application. (u) Park Development Impact Fees. The owner of each Parcel shall pay the required Park Development Impact Fee to the City of Aspen, which is due and payable at the time of building permit application for the development of its parcel. This fee shall be assessed at the rate of the regulations and calculations in effect at the time of the building permit application. (v) Exterior Lighting. All exterior lighting within Top of Mill shall comply with the Site and Exterior Lighting Plan to be recorded contemporaneously with the Final Plat and this Agreement. TOMI shall be required to submit detailed "cut sheets" for the proposed 38181-16 - 12 471100 Page: 12 of 47 08/16/2002 2.27E SILVIA DAVIS PITKIN COUNTY CO R 235.00 0 0.00 EXECUTION COPY street lights on Top of Mill indicating the correct lumens on the lighting plan as part of the detailed building set to be examined during building permit review. (w) Work in Public Rights -of -Way. TOMI shall first receive the approval of the appropriate City Department and/or utility/service district prior to commencement of any work within a public right-of-way. (x) Damage to Public Rights -of -Way. TOMI shall repair any public right -of --way damaged during construction on any Parcel within Top of Mill prior to issuance of a certificate of occupancy for any structure on said Parcel. (y) Construction Hours. Construction activity within Top of Mill shall be limited to the hours between 7:00 a.m. and 7:00 p.m., Monday through Saturday. No construction activity shall be permitted on Sunday. (z) Construction Management Plan. During all construction activities on Top of Mill, TOMI shall comply with the Construction Management Plan that will be submitted prior to building permit issuance. (aa) Infrastructure and Removal of Fill. TOMI shall have the right to apply for permits for construction of infrastructure and removal of fill from Top of Mill at any time after approval of Ordinance No. 7. (bb) Erosion Control. Erosion control plans, including potential natural resource protection structures, and a detailed plan for irrigation systems and other plantings within the City of Aspen right-of-way shall be submitted by TOMI to the Parks Department for approval prior to the application of building permits. Separate erosion control plans shall be submitted by the owners of each Parcel prior to the issuance of a building permit for their respective Parcels. (cc) Street Impact Fees. TOMI and Grand Aspen Lodging, LLC have contributed $83,000.00 in Street Impact Fees to the City of Aspen in connection with the proposed development on Top of Mill and on Lot 5 of the Aspen Mountain Subdivision/PUD. No additional street impact fees will be charged in connection with Top of Mill or Lot 5 of the Aspen Mountain Subdivision/PUD. (dd) Storm Sewer. The City of Aspen has agreed to install a storm sewer pipeline adjoining Mill Street and the southern property line of Top of Mill that will run down Mill Street and tap into the City's existing storm sewer line at or above Durant Street. TOMI has paid the City $14,000.00 towards the cost of designing a complete infrastructure system for South Mill Street and will pay up to an additional $66,000.00 towards the cost of such system within 30 days after completion, as long as it is completed by October 1, 2002. Once 38181-16 471 100 Page: 13 of 47 08/16/2002 02:27P SILVIA DAVIS PITKIN COUNTY CO R 235.00 0 0.00 EXECUTION COPY the infrastructure has been constructed at Top of Mill, TOMI shall connect the Top of Mill storm sewer system with the City's and there shall be no cost to TOMI to do so. (ee) Rio Grande Ponds. The City has a plan to upgrade its storm water retention ponds at Rio Grande Park, the cost of which shall be borne by all new development in the City. TOMI and Grand Aspen Lodging, LLC shall contribute $144,000.00 towards the construction of such upgrades within six (6) months of the latest to occur of (i) the recording of the Final Plat or (ii) the recording of the final plat for Lot 5 of the Aspen Mountain Subdivision/PUD. No additional costs of the upgrades will be charged to TOMI, Grand Aspen Lodging, LLC or the owners of any real property within Top of Mill or Lot 5 of the Aspen Mountain Subdivision/PUD. If the City has not proceeded with the aforementioned upgrades within five years of the date of this Agreement, the entire $144,000.00 (plus accrued interest) shall be returned to TOMI and Grand Aspen Lodging, LLC. (ff) Slope Movement Monitoring .System. The City Engineering Department has requested TOMI to voluntarily contribute $55,000.00 towards the cost of studying and/or developing a slope movement monitoring system for slopes above the City of Aspen. Although TOMI is not aware of any need for such system, or has ever been shown the necessity of such a system above Top of Mill, TOMI has agreed to contribute $55,000.00 for such purpose with the restriction that such funds be used solely for studying and/or developing a system for slopes above Top of Mill. TOMI's contribution under this paragraph shall be made within six (6) months of the recordation of the Final Plat. The City shall hold such funds in escrow and shall be dispersed only for the purposes described in this paragraph and upon mutual approval of TOMI and the City. If the City has not proceeded with the aforementioned study and/or development within three years of the date of this Agreement, the entire $55,000.00 (plus accrued interest) shall be returned to TOMI. (gg) Fire Protection. Fire sprinklers and alarm systems shall be installed in all the proposed buildings on Top of Mill as required by the City of Aspen Fire Marshal. Appropriate "booster pumps" (if required) rather than pressure tanks for the sprinkler system shall be used to gain the necessary water pressure as required by the City Fire Department. The owner of each Parcel shall be responsible for ensuring that any buildings constructed thereon shall comply with this condition of approval. In addition, TOMI shall submit a fire safety plan for the demolition of the existing structures to be preformed by TOMI and the construction of the proposed development of Top of Mill to the Engineering Department at the time of building permit application. (hh) Development on Parcel 9. Development on Parcel 9 shall be limited to the existing garage and trash storage structures and any replacement thereof (whether due to casualty, obsolescence or otherwise), which replacement shall be for the same use; occur only within the footprint of said existing structures and the existing square footage of said structures cannot be increased. The provisions of this Paragraph 2.2(hh) and 2.1(b)(ii) and (iii) above shall be binding on Parcel 9. 38181-16 14 471100 page: 14 of 47 OTTKTN COUNTY CO EXECUTION COPY 2.3 Subdivision Improvements. TOMI shall complete the following subdivision improvements, all as depicted on the Final PUD Development Plan for Top of Mill, which is attached to and recorded as a part of the Final Plat. (a) Excavation and removal of approximately 28,000 cubic yards of excess fill to bring the site back to the base elevations utilized in the site grading plan. (b) Construction of approximately 1,000 linear feet of sidewalk both in the pubtic right-of-way (820 linear feet) and internal to the project site. (c) Installation of two handicap sidewalk ramps. (d) Installation of up to 4 street lights in the public right-of-way and on Top of Mill Street. (e) Construction of approximately 1,200 linear feet of new curb and gutter along the west side of the South Mill Street as well as along Top of Mill Street. (f) Construction of approximately 900 linear feet of 8 inch diameter ductile iron water main extension including two fire hydrants and related gate valves and fittings. (g) Construction of approximately 480 linear feet of 8 inch diameter PVC sewer main extension including 6 sewer manholes and appurtenances. (h) Installation of approximately 650 linear feet of electric primary, gas, phone and cable TV lines. (i) Installation of site drainage improvements including 620 linear feet of storm drain, 6 inlet structures and 3 manholes to handle storm runoff from new impervious areas. 0) Placement of 4,500 square yards of asphalt or concrete paving. (k) Construction of approximately 500 linear feet of 4-foot wide gravel path within Top of Mill Trail Easement. (1) Construction of approximately 590 linear feet of 4-foot wide gravel path within Aspen Mountain Trail Easement. 2.4 Cost of Subdivision Improvements. The current estimated cost of the subdivision improvements described in Section 2.3 above, as more specifically set forth in the Engineer's Estimate of Cost prepared by Schmueser Gordon Meyer, Inc. dated May 31, 2002, a copy of which is 38181-16 15 471100 Page: 15 of 47 /16 SILVIA DAVIS PITKIN COUNTY CO R 235.00 D 000101 7F EXECUTION COPY attached hereto as Exhibit "C" and made apart hereof by this reference, and as approved by the City Engineer, is $746,925.00. TOMI shall complete construction of the aforesaid subdivision improvements in accordance with a Construction Schedule to be submitted to the City Engineering Department simultaneously with submission of the financial guarantee described in Section 2.6 hereof. 2.5 Landscape Plan and Related Costs. TOMI shall install all landscaping on Parcels 1, 2, 3 and Open Space Parcel A depicted on the approved Landscape Plan, which is to be recorded contemporaneously with the Final Plat and this Agreement. Landscaping for Parcels 4-8 shall be the responsibility of the respective owners of those Parcels. TOMI shall ensure the success of all landscaping installed by TOMI pursuant to the Landscape Plan for a period of two (2) years from the date of installation. TOMI shall replace any landscaping installed by TOMI that fails during such two (2) year period except where damage or destruction of such landscaping is caused by individual property owners. After installation and initial grow -in of such landscaping, the Master Association shall have the responsibility to irrigate, mow, trim, and otherwise maintain the landscaping within Open Space Parcel A, the homeowners association for the townhouses on Parcel 1 shall have the responsibility to irrigate, mow, trim, and otherwise maintain the landscaping within Parcel 1, and the homeowners association for the affordable housing units on Parcel 2 shall have the responsibility to irrigate, mow, trim, and otherwise maintain the landscaping within Parcel 2. The owners of the duplex units on Parcel 3 shall have the responsibility to irrigate, mow, trim, and otherwise maintain the landscaping within Parcel 3. The current estimated cost of implementing the Landscape Plan and for assuring the success of said landscaping for a period of two (2) years after installation, as more specifically set forth in the schedule prepared by DHM Design Corporation dated May 15, 2002, attached hereto as Exhibit "D" and made a part hereof by this reference, and as approved by the City Engineer, is $82,182.00.00 for Parcel 1; $47,600.00 for Parcel 2; $ 31,023.00 for Parcel 3; and $55,887.00 for Open Space Parcel A. 2.6 Financial Assurances. (a) In order to ensure construction and installation of the subdivision improvements described in Section 2.3 above, and to guarantee 100 percent of the current estimated cost of the subdivision improvements, TOMI shall provide to the City an irrevocable letter of credit from a financially responsible lender in the amount of $746,925.00 (the "Subdivision Improvements Letter of Credit"). The Subdivision Improvements Letter of Credit shall be provided to the City prior to the issuance of a building permit for the construction of the first residential structure on Top of Mill. (b) In order to ensure construction and installation of the landscaping improvements described in Section 2.5 above, and to guarantee 125 percent of the current estimated cost of the landscaping improvements (including 2 years of maintenance thereof), TOMI shall provide to the City irrevocable letters of credit from a financially responsible lender in the amount of $102,727.50 (i.e., 125% of $82,182.00) for the landscaping improvements on Parcel 1; $59,500.00 (i.e., 125% of $47,600.00) for the landscaping improvements on Parcel 2; $38,778.75 (i.e., 125% of $31,023.00) for the landscaping improvements on Parcel 3; and $69,858.75 (i.e., 125% of $55,887.00) for the 38181-16 16 471100 Page: 15 of 47 08/16/2002 02:27P SILVIA DAVIS PITKIN COUNTY CO R 235.00 D 0.00 EXECUTION COPY landscaping improvements on Open Space Parcel A; (each, a "Landscaping Letter of Credit", and collectively, the "'Landscaping Letters of Credit"). The Landscaping Letter of Credit for Parcel 1 shall be provided to the City at the time of building permit application for Parcel 1. The Landscaping Letter of Credit for Parcel 2shall be provided to the City at the time of building permit application for Parcel 2. The Landscaping Letter of Credit for Parcel 3 shall be provided to the City at the time of building permit application for Parcel 3. The Landscaping Letter of Credit for Open Space Parcel A shall be provided to the City with the first Landscaping Letter of Credit for Parcels 1, 2 or 3 (e.g., if TOMI applies for a building permit for Parcel 1 before Parcels 2 or 3, then the Landscaping Letters of Credit for Parcels 1 and Open Space Parcel A shall be provided at the time of building permit application for Parcel 1). (c) The Landscaping Letters of Credit and the Subdivision Improvements Letter of Credit (together, the "Letters of Credit") shall be in a form reasonably acceptable to the City Attorney and the City Manager, and give the City the unconditional right, upon default by TOMI to draw on funds as necessary and upon demand to partially or fully complete and/or pay for any of such improvements or pay any outstanding and delinquent bills for work done thereon by any party, with any excess letter of credit amounts to be applied first to additional administrative or legal costs associated with any such default and the repair of any deterioration in improvements already constructed before the unused remainder, if any, of such Letter of Credit is released to TOMI. Provided, however, that TOMI shall be given fourteen (14) days written notice of default (and the right to cure during said period) prior to the City's ability to make a draw under any Letter of Credit. Notwithstanding the foregoing, delays or other problems resulting from acts of God or other events beyond the reasonable control of TOMI shall not constitute a default hereunder so long as a good faith effort is being made to remedy the problem and the problem is in fact resolved within a reasonable period of time following its occurrence. As portions of the improvements required are completed, the City Engineer shall inspect the subdivision improvements and the City Parks Department shall inspect the landscaping improvements, and upon approval and written acceptance, a reduction in the outstanding amount of the applicable Letter of Credit shall be authorized in an amount equal to the agreed estimated cost for the completed portion of the improvements; provided, however, that ten percent (10%) of the estimated cost shall be withheld until all proposed improvements are completed and approved by the City Engineer or City Parks Department, as the case may be, and with respect to landscaping improvements, an additional twenty-five percent (25%) of the estimated cost thereof shall be retained until the landscaping improvements have been maintained in a satisfactory condition for two (2) years. (d) It is the express understanding of the parties that compliance with the procedure set forth in Section 2.7 below pertaining to the procedure for default and amendment of this Agreement shall not be required with respect to the enforcement and implementation of these financial assurances and guarantees to be provided by TOMI as set forth above. 2.7 Noncompliance and Request for Amendments or Extensions by TOMI. In the event that the City Council determines that TOMI is not acting in substantial compliance with the terms of this Agreement, the City Council shall notify TOMI in writing specifying the alleged non- 38181-16 17 11 4'1100 08116/2002t 02?27P r �,tc OTTKIN COUNTY CO R 235.00 0 0.00 EXECUTION COPY compliance and asking that TOMI remedy the alleged non-compliance within such reasonable time as the City Council may determine, but not less than 30 days. If the City Council determines that TOMI has not complied within such time, the City Council may issue and serve upon TOMI a written order specifying the alleged non-compliance and requiring TOMI to remedy the same within thirty (30) days thereafter. Within twenty (20) days of the receipt of such order, TOMI may file with the City Council either a notice advising the City Council that it is in compliance or a written petition requesting a hearing to determine any one or both of the following matters: (a) Whether the alleged non-compliance exists or did exist, or (b) Whether a variance, extension of time or amendment to this Agreement should be granted with respect to any such non-compliance, which is determined to exist. Upon the receipt of such petition, the City Council shall promptly schedule a hearing to consider the matters set forth in the order of non-compliance and in the petition. The hearing shall be convened and conducted pursuant to the procedures normally established by the City Council for other hearings. If the City Council determines by a preponderance of the evidence that a non- compliance exists which has not been remedied, it may issue such orders as may be appropriate, including the imposition of daily fines until such noncompliance has been remedied, the withholding of permits and/or certificates of occupancy, as applicable; provided, however, no order shall terminate any land use approval. The City Council may also grant such variances, extensions of time or amendments to this Agreement, as it may deem appropriate under the circumstances. The parties expressly acknowledge and agree that the City Council shall not unreasonably refuse to extend the time periods for performance if TOMI demonstrates by a preponderance of the evidence that the reasons for the delay(s) which necessitate said extension(s) result from acts of God or other events beyond the reasonable control of TOMI, despite good faith efforts on its part to perform in a timely manner. 2.8 Top of Mill Construction Schedule. Development of Top of Mill shall comply with the most recent municipal engineering practice standards and the "Best Management Practices" (BMPs) identified for water quality control requirements. The development shall occur in accordance with the time frames set forth below, which are contained in Aspen City Council Ordinance No. 15, Series of 2002 ("Ordinance No. 15-02"): (a) TOMI may submit building permit applications for construction of infrastructure and removal of fill any time after approval of Ordinance 7, but such applications shall be submitted no later than thirty (30) days after recordation of this Agreement and the Final Plat. (b) TOMI may submit building permit applications for the improvements to be constructed on Parcels 1 and 2 any time after recordation of this Agreement and the Final Plat. 38181-16 471100 f 47 SiLVIR DAVIS PITKIN�COUNTY CO R 235.00 8/16//200202:27F 0.00 471100 Page: 19 of 47 08/16/2002 02:27P SILVIA DAVIS PITKIN COUNTY CO R 235.00 D 0.00 EXECUTION COPY (c) TOMI may submit building permit applications for the improvements to be constructed on Parcels 3,4,5,6,7 and 8 any time after approval of Ordinance 7, but not before a building permit is issued to Bavarian Affordable Housing, LLC for "Phase P' of the Bavarian Inn Affordable Housing Project. (d) No certificate of occupancy for any townhome unit to be constructed on Parcel 1 shall be issued until a certificate of occupancy has been issued for the affordable housing units to be constructed on Parcel 2. (e) The certificate of occupancy for the tree -market improvements to be constructed on any of Parcels 3,4, 5, 6, 7 and 8 shall not be issued until a certificate of occupancy has been issued for the on -site accessory dwelling unit on any such Parcel or the owner of such Parcel has paid the applicable affordable housing impact fee. To the extent of any conflict between the terms of this Agreement and the provisions of Ordinance No. 15-02, this Agreement shall govern and control. ARTICLE 3 GENERAL PROVISIONS 3.1 The provisions hereof shall be binding upon and inure to the benefit of TOMI and City and each of their respective successors and assigns. 3.2 This Agreement shall be subject to and construed in accordance with the laws of the State of Colorado. 3.3 If any of the provisions of this Agreement or any paragraph, sentence, clause, phrase, word, or section or the application thereof in any circumstance is invalidated, such invalidity shall not affect the validity of the remainder of this Agreement, and the application of any such provision, paragraph, sentence, clause, phrase, word, or section in any other circumstance shall not be affected thereby. 3.4 This Agreement and the Exhibits attached hereto contains the entire understanding between the parties hereto with respect to the transactions contemplated hereunder. TOMI, its successors or assigns may, on its own initiative, petition the City Council for an amendment to this Agreement or an extension of one or more of the time periods required for performance hereunder. The City Council shall not unreasonably deny such petition for amendment or extension after considering all appropriate circumstances. Any such amendments or extensions of time shall only become effective upon the execution by all parties hereto that are affected by the proposed amendment (it being understood that after TOMI conveys Parcel 9 as described in Section 2.1(a) above, Parcel 9 shall not, except as provided in Paragraphs 2.1(b)(ii) and (iii) and 2.2(hh) above, be covered by, or subject to this Agreement; and, excepting only said Paragraphs 2.1(b)(ii) and (iii) and 2.2(hh), this Agreement may be amended without the consent of the owner of Parcel 9). The 38181-16 19 EXECUTION COPY provisions of this Agreement shall supersede and replace Section M of the First Amended PUD Agreement as it relates to Top of Mill. 3.5 Numerical and title headings contained in this Agreement are for convenience only, and shall not be deemed determinative of the substance contained herein. As used herein, where the context requires, the use of the singular shall include the plural and the use of any gender shall include all genders. 3.6 Upon execution of this Agreement by all parties hereto, City agrees to approve and execute this Agreement and the Final Plat, and cause the same to be promptly recorded in the office of the Clerk and Recorder for Pitkin County, Colorado, upon payment of the recordation fee by TOMI. 3.7 Notices to be given to the parties to this Agreement shall be considered to be given if hand delivered or if deposited in the United States Mail to the parties by registered or certified snail at the addresses indicated below, or such other addresses as may be substituted upon written notice by the parties or their successors or assigns: City: City of Aspen City Manager 130 South Galena Street Aspen, CO 81611 1111111111111111111111111111111111111111111111111111111 TOMI: Top of Mill Investors, LLC c/o Four Peaks Development, LLC 1000 S. Mill Street Aspen, CO 81611 With copy to: Ronald Garfield, Esq. 471100 Page: 20 of 47 08/16/2002 02:27P 00 D 0.00 Garfield & Hecht, P.C. 601 E. Hyman Avenue Aspen, CO 81611 3.8 The terms, conditions, provisions and obligations herein contained shall be deemed covenants that run with and burden the real property more particularly described herein and any and all owners hereof, their successors, grantees or assigns, and further shall inure to the benefit of and be specifically enforceable by or against the parties hereto, their successors, grantees and assigns. [Signatures on Next Page] 38181-16 20 EXECUTION COPY IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the day and year first above written. ATTEST: Kathryn S. KY��' ity Clerk-"' APPROVED AS TO FORM: Joliii Wd'rcester, City Attorney CITY: CITY OF ASPEN, COLORADO, a Colorado municiDel eotDoration Kl�v►u , Mayor TOMI: TOP OF MILL INVESTORS, LLC, a Delaw limited liability compa i i By: David ar, er, Director [Acknowledgments on Next Page] 471100 SILVIA DAVIS PITKIN COUNTY CO R 2350 �I6p2000.0002:27F .9 38181-16 21 471100 Page: 22 of 47 .iLVlo DAVIS PITKIN COU1111 NTY CO R 235.00 /I6/200000802 02:27P EXECUTION COPY STATE OF COLORADO ) ss COUNTY OF PITKIN ) The above and foregoing docum nt was acknowledged before me this �0day of 2002, by E vj k--aj r V1 V—kad a i; it4 as Mayor and Kathryn A. Koch as City Clerk of the City of Aspen, Colorado, a Colorado municipal corporation. Witness my hand and official My commission expires: 14ta1 0 f �.'�A Y• P�e 0 JAME �5�F•�db STATE OF NLOA60 ) t of ss COUNTY OF 110V ) The above and foregoing document was acknowledged before me this Bch day of August 2002, by David Parker as Director for Top of Mill Investors, LLC, a Delaware limited liability company. Witness my hand and official My commission expires: MY COMMISSION EXPIRES Notary Public 38181-16 22 471100 Page: 23 of 47 08/16/2002 02:27P SILVIA DAVIS PITKIN COUNTY CO R 235.00 D 0.00 EXECUTION COPY EXHIBIT 64A-1" CITY OF ASPEN TOP OF MILL TRAIL EASEMENT THIS EASEMENT is made on , 2002 and is granted by Top of Mill Investors, LLC, a Delaware limited liability company, hereinafter referred to as "Grantor," to the City of Aspen, Colorado, a Municipal corporation, hereinafter referred to as "the City." For good and valuable considerations, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows: 1. Easement. Grantor hereby grants to the City a non-exclusive ten foot (10') foot wide easement, hereinafter referred to as the "Top of Mill Trail Easement" or the "Easement" over and across the real property located in Pitkin County, Colorado, more particularly described on Exhibit "A" attached hereto and incorporated herein, for use by members of the public solely for pedestrian purposes. The easement granted herein shall also include the right, on the part of the public to cross Top of Mill Street as shown on the Final Plat of Top of Mill Subdivision/PUD recorded , 2002 in Book at Page as Reception No. (the "Final Plat") in order to utilize the Easement. The City shall be permitted to make improvements to the Easement only to the extent required for drainage, safety and maintenance of the trail. No other improvements by the City (e.g., lighting, etc.) shall be permitted. While the Easement runs through lands owned by Grantor, access to the Easement may only be obtained by first crossing other lands not owned by Grantor. Obtaining access to the Easement shall be the responsibility of the City. Except as specifically provided herein, no other lands of Grantor may be used to access the Easement and nothing herein shall be construed as a grant, express or implied, over lands of Grantor not described in Exhibit "A" for access to the Easement. Grantor reserves the right to use and enjoy the Easement and the land beneath and the airspace above for all purposes and uses which do not unreasonably interfere with the use and enjoyment by the City or members of the public of the rights herein granted. Without limitation to the foregoing, Grantor shall have the right to grant any easements to utility companies over or under the Easement. The City agrees to maintain the Easement at its sole expense; provided, however, that the City shall have the right to assign its maintenance responsibilities to whatever person or entity the City deems is desirable for the effective utilization and maintenance of the Easement granted herein. If the City fails to maintain the Easement within a reasonable period after notice from Grantor that the City has failed to do so, Grantor shall have the right, but not the obligation, to maintain the Easement and the City shall reimburse Grantor for any out-of-pocket costs incurred by Grantor. The Easement is granted subject to all existing easements, restrictions and covenants of record. 38181-16 23 EXECUTION COPY Notwithstanding anything to the contrary herein, the City recognizes that Grantor will be engaged in construction in connection with its proposed development of the Top of Mill Subdivision/PUD and that use of the Easement during construction is potentially dangerous and likely to be disruptive to Grantor. Therefore, neither the City nor any member of the public shall have the right to use the Easement until a certificate of occupancy has been issued for the townhomes to be constructed by Grantor on Parcel 1, Top of Mill Subdivision/PUD. In addition, after a certificate of occupancy has been issued for the townhomes to be constructed by Grantor on Parcel 1, Top of Mill Subdivision/PUD, Grantor shall have the right to temporarily close the Easement from time -to -time when Grantor reasonably determines that use of the Easement will potentially conflict with Grantor's construction activities. Upon recordation of this Easement Agreement, the portion of the Top of Mill Trail Easement depicted on the Final Plat located between the western boundary of Parcels 1 and 8, Top of Mill Subdivision/PUD and the western boundary of Open Space Parcel B, Top of Mill Subdivision/PUD shall automatically be vacated and replaced by the portion of the Top of Mill Trail Easement described in this Easement Agreement in that area. 2. Easement Utilization. This Easement is solely for use by the public for pedestrian purposes. No hunting, horses or pedal bikes, such as mountain bikes shall be permitted on the Easement. The use of motor vehicles is also prohibited, except to the extent necessary from time to time for the construction and maintenance of the trail or for emergency vehicles when necessary. The grant of the easement, as described herein, shall be strictly construed. 3. Trail Construction. Subject to seasonal conditions, Grantor shall improve the Easement as it lies within Top of Mill by constructing a four -foot (4') wide single track path with underlying matting and a crusher -fine surface. If, at the time this Easement Agreement is recorded, Grantor has not yet completed such improvements, Grantor shall deposit into escrow with the City sufficient funds, in an amount determined by the City, to pay of the cost of completing said improvements. If said improvements have not been completed by [Insert date that is five (5) years after the date that the Top of Mill Subdivision/PUD Agreement is recorded], whether due to the fact that publicly dedicated trails through adjoining lands have not been connected up with the easterly and westerly ends of the Easement or otherwise, the funds deposited into escrow by Grantor for this purpose shall be released to the City and Grantor shall thereafter be relieved of any further obligation to improve the Easement. 4. Maintenance, Hold harmless and Insurance. The parties expressly acknowledge that the Easement is granted for a "recreational purpose" under, and Grantor is entitled to the benefits, protection and limitations on liability afforded by Colorado law governing recreational easements, including, but not limited to, Colorado Revised Statute § 33-41-101, et seq., as amended. By granting the Easement, Grantor shall have no obligation to repair, clear or otherwise maintain the area within the Easement, or to insure or indemnify the City or any member of the public for any injury, claim or damage to any person or property, whether alleged to have occurred as a result of use of the Easement or due to the condition of the trail. 38181-16 24 471100 Page: 24 of 47 08/16/2002 02:27P SILVIA DAVIS PITKIN COUNTY CO R 235.00 D 0.00 EXECUTION COPY By accepting the Easement granted herein, the City agrees, to the extent permitted by law, to defend and hold Grantor and its successors and assigns harmless, subject to the procedural requirements and monetary limits of the Colorado Governmental Immunity Act, Colorado Revised Statutes § 24-10-101, et se .,as amended, for any injury, claim or damage to any person or property as a result of use of the Easement or due to the condition of the trail. 5. Right to Relocate. Grantor retains the right to relocate the Easement and/or the trail located therein, with the obligation to reconstruct any improvements thereon, at its sole expense and with the prior written approval of the City as to relocation, procedure and method of reconstruction of the public trail, which approval by the City shall not be unreasonably withheld as long as the proposed relocation and reconstruction serve the purposes of the City, as expressed herein, to the same extent as this Easement, and so long as the improvements so constructed also serve said purposes. 6. Amendment. This Easement and the rights and obligations granted and assumed herein may not be modified except by a writing signed by Grantor and City, or their respective successors and assigns, as applicable. 7. Notices. Any notices given pursuant to the terms of this Easement shall be given by mailing the same, certified mail, return receipt requested, properly addressed and with postage fully prepaid, to the addresses provided below or to subsequent assigns, as applicable, as long as prior written notice of the change of address has been given to the other parties listed below. Said notices shall be sent to the parties hereto at the following address unless otherwise notified in writing: Grantor: Top of Mill Investors, LLC 1000 S. Mill Street Aspen, Colorado 81611 Attn: Scott Writer With a copy to: Ronald Garfield, Esq. Garfield & Hecht, P.C. 601 E. Hyman Avenue Aspen, Colorado 81611 City: City of Aspen 130 S. Galena Street Aspen, Colorado 81611 Attn: City Manager 8. Venue. Grantor and City agree that his Easement is made in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado. 38181-16 25 471 100 Page: 25 of 47 08/16/2002 02:27F SILVIA DAVIS PITKIN COUNTY CO R 235.00 D 0.00 EXECUTION COPY 9. Enforcement. Each of Grantor and the City shall have the right and power to bring suit in its own name for any legal or equitable relief due to lack of compliance with any provisions of this Easement. The failure of a party to insist upon the performance of any provisions or to exercise any right or option available to it, or to serve any notice or to institute any action, shall not be a waiver or a relinquishment for the future, of any such provision. If any court proceedings are instituted in connection with the rights of enforcement and remedies provided in this easement, the prevailing party shall be entitled to reimbursement of its costs and expenses, including reasonable attorneys' fees, in connection therewith. 10. Designation of Successor. Grantor, by instrument duly recorded in the real estate records of Pitkin County, Colorado, may designate a party to succeed to all the rights, privileges and remedies of Grantor hereunder. 11. Term. The term of this easement shall be permanent and perpetual, so long as the City shall comply with the terms, provisions and conditions set forth herein. 12. Successors and Assigns. All the provisions of this easement, including the benefits and burdens created thereby, shall run with the land and be binding upon all persons who hereafter acquire any interest in the property described in Exhibit "A", whether as an owner, renter, trust deed or mortgage beneficiary, or otherwise. All provisions of this Easement inure to the benefit of and be binding upon the parties hereto, their heirs, successors, assigns and personal representatives. [Signatures on Next Page] 471100 Page: 26 of 47 08/I6/2002 02:27F SILVIA DAVIS PITKIN COUNTY CO R 235.00 D 0.00 38181-16 26 ATTEST: Kathryn S. Koch, City Clerk APPROVED AS TO FORM: John Worcester, City Attorney EXECUTION COPY GRANTOR: TOP OF MILL INVESTORS, LLC a Delaware limited liability company By: Print Name: Title: CITY: CITY OF ASPEN, a Colorado Municipal corporation By: Print Name: Title: 471100 Page: 27 of 47 08/16/2002 02:27P SILVIA DAVIS PITKIN COUNTY CO R 235.00 D 0.00 38181-16 27 EXECUTION COPY STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing Easement was acknowledged before me this day of 92002 by , as Delaware limited liability company. Witness my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) ss. COUNTY OF PITKIN ) of Top of Mill Investors, LLC, a The foregoing Easement was acknowledged before me this day of 12002 by Municipal corporation. as Witness my hand and official seal. My commission expires: Notary Public of the City of Aspen, a Colorado 471100 Page: 28 of 47 08/16/2002 02:27P SILVIA DAVIS PITKIN COUNTY CO R 235.00 D 0.00 38181-16 28 EXECUTION COPY EXHIBIT "A" TO EXHIBIT "A-1" (Legal Description of Top of Mill Trail Easement) Top of Mill Trail Easement, according to the Final Plat of Top of Mill Subdivision/PUD, a planned community recorded 2002 in Book at Page as Reception No. COUNTY OF PITKIN, STATE OF COLORADO. 471100 Page: 29 f 08/16/200202?27F R 235.00 0.00 SILVIA DAVIS PITKIN COUNTY CO D 38181-16 29 EXECUTION COPY EXHIBIT "A-2" CITY OF ASPEN ASPEN MOUNTAIN TRAIL EASEMENT THIS EASEMENT is made on , 2002 and is granted by Top of Mill Investors, LLC, a Delaware limited liability company, hereinafter referred to as "Grantor," to the City of Aspen, Colorado, a Municipal corporation, hereinafter referred to as the "City." For good and valuable considerations, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows: 1. Easement. Grantor hereby grants to the City a non-exclusive thirty foot (30') wide easement, hereinafter referred to as the "Aspen Mountain Trail Easement" or "Easement" over and across the real property located in Pitkin County, Colorado, more particularly described on Exhibit "A" attached hereto and incorporated herein, for use by members of the public strictly as a trail for pedestrian and skiing purposes. The City shall be permitted to make improvements to the Easement only to the extent required for drainage, safety and maintenance of the trail. No other improvements by the City (e.g., lighting, etc.) shall be permitted. While the Easement runs through lands owned by Grantor, access to the Easement may only be obtained by first crossing other lands not owned by Grantor. Obtaining access to the Easement shall be the responsibility of the City. No other lands of Grantor may be used to access the Easement and nothing herein shall be construed as a grant, express or implied, over lands of Grantor not described in Exhibit "A" for access to the Easement. Grantor reserves the right to use and enjoy the Easement and the land beneath and the airspace above for all purposes and uses which do not unreasonably interfere with the use and enjoyment by the City or members of the public of the rights herein granted. Without limitation to the foregoing, Grantor shall have the right to grant any easements to utility companies over or under the Easement. The Easement is granted subject to all existing easements, restrictions and covenants of record. The City agrees to maintain the Easement at its sole expense; provided, however, that the City shall have the right to assign its maintenance responsibilities to whatever person or entity the City deems is desirable for the effective utilization and maintenance of the Easement granted herein. If the City fails to maintain the Easement within a reasonable period after notice from Grantor that the City has failed to do so, Grantor shall have the right, but not the obligation, to maintain the Easement and the City shall reimburse Grantor for any out-of-pocket costs incurred by Grantor. 38181-16 30 471100 Page: 30 of 47 08/16/2002 02:27F SILVIA DAVIS PITKIN COUNTY CO R 235.00 D 0.00 EXECUTION COPY Notwithstanding anything to the contrary herein, the City recognizes that Grantor will be engaged in construction in connection with its proposed development of the Top of Mill Subdivision/PUD and that use of the Easement during construction is potentially dangerous and likely to be disruptive to Grantor. Therefore, neither the City nor any member of the public shall have the right to use the Easement until a certificate of occupancy has been issued for the townhomes to be constructed by Grantor on Parcel 1, Top of Mill Subdivision/PUD. In addition, after a certificate of occupancy has been issued for the townhomes to be constructed by Grantor on Parcel 1, Top of Mill Subdivision/PUD, Grantor shall have the right to temporarily close the Easement from time -to -time when Grantor reasonably determines that use of the Easement will potentially conflict with Grantor's construction activities. 2. Easement Utilization. This Easement is solely for use as a trail for pedestrian and skiing purposes by the public, which for purposes of this Easement includes the right to use horses and pedal bikes, such as mountain bikes. No hunting shall be permitted on the Easement. The use of motor vehicles is also prohibited, except to the extent necessary from time to time for the construction and maintenance of the trail or for emergency vehicles when necessary. The grant of the easement, as described herein, shall be strictly construed. 3. Trail Construction. Subject to seasonal conditions, Grantor shall improve said Easement by constructing a four -foot (4') wide single track path with underlying matting and a crusher -fine surface, installation of trail signs at the ends of the trail identifying the trail name and public access, which signs shall be designed and built in accordance with City of Aspen Parks Department standards. 4. Maintenance, Hold harmless and Insurance. The parties expressly acknowledge that the Easement is granted for a "recreational purpose" under, and Grantor is entitled to the benefits, protection and limitations on liability afforded by Colorado law governing recreational easements, including, but not limited to, Colorado Revised Statute § 33-41-101, et seq., as amended. By granting the Easement, Grantor shall have no obligation to repair, clear or otherwise maintain the area within the Easement, or to insure or indemnify the City or any member of the public for any injury, claim or damage to any person or property, whether alleged to have occurred as a result of use of the Easement or due to the condition of the trail. By accepting the Easement granted herein, the City agrees, to the extent permitted by law, to defend and hold Grantor and its successors and assigns harmless, subject to the procedural requirements and monetary limits of the Colorado Governmental Immunity Act, Colorado Revised Statutes § 24-10-101, et seq., as amended, for any injury, claim or damage to any person or property as a result of use of the Easement or due to the condition of the trail. 5. Right to Relocate. Grantor retains the right to relocate the Easement and/or the trail located therein, with the obligation to reconstruct any improvements thereon, at its sole expense and with the prior written approval of the City as to relocation, procedure and method of reconstruction of the public trail, which approval by the City shall not be unreasonably withheld as long as the 38181-16 31 471100 Page: 31 of 47 08/16/2002 02:27P SILVIA DAVIS PITKIN COUNTY CO R 235.00 D 0.00 EXECUTION COPY proposed relocation and reconstruction serve the purposes of the City, as expressed herein, to the same extend as this Easement, and so long as the improvements so constructed also serve said purposes. 6. Vacation of Prior Aspen Mountain Trail Easements. Reference is made to the Final Plat for the Top of Mill Subdivision/PUD recorded 12002 in Book at Page as Reception No. (the "Final Plat"). The Final Plat (i) vacates the Aspen Mountain Trail as shown on the First Amended Plat Aspen Mountain Subdivision and Planned Unit Development, according to the Plat thereof filed October 3, 1988 in Plat Book 21 at Page 35 (the "First Amended Plat") and (ii) depicts the general vicinity of a new Aspen Mountain Trail Easement that will be located, aligned and dedicated by this Easement Agreement. Upon recordation of this Easement Agreement, the Aspen Mountain Trail Easement depicted on the Final Plat shall automatically be vacated and replaced by the Easement described and dedicated in this Easement Agreement. 7. Amendment. This Easement and the rights and obligations granted and assumed herein may not be modified except by a writing signed by Grantor and City, or their respective successors and assigns, as applicable. 8. Notices. Any notices given pursuant to the terms of this Easement shall be given by mailing the same, certified mail, return receipt requested, properly addressed and with postage fully prepaid, to the addresses provided below or to subsequent assigns, as applicable, as long as prior written notice of the change of address has been given to the other parties listed below. Said notices shall be sent to the parties hereto at the following address unless otherwise notified in writing: Grantor: Top of Mill Investors, LLC 1000 S. Mill Street Aspen, Colorado 81611 Attn: Scott Writer With a copy to: Ronald Garfield, Esq. Garfield & Hecht, P.C. 601 E. Hyman Avenue Aspen, .Colorado 81611 City: City of Aspen 130 S. Galena Street Aspen, Colorado 81611 Attn: City Manager 38181-16 32 471 i 0o 47 I08/16/2002f 02 27P SI LVIP DAVIS PITKIN C I NTY CO R 235.00 EXECUTION COPY 9. Venue. Grantor and City agree that his Easement is made in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado. 10. Enforcement. Each of Grantor and the City shall have the right and power to bring suit in its own name for any legal or equitable relief due to lack of compliance with any provisions of this Easement. The failure of a party to insist upon the performance of any provisions or to exercise any right or option available to it, or to serve any notice or to institute any action, shall not be a waiver or a relinquishment for the future, of any such provision. If any court proceedings are instituted in connection with the rights of enforcement and remedies provided in this easement, the prevailing party shall be entitled to reimbursement of its costs and expenses, including reasonable attorneys' fees, in connection therewith. 11. Designation of Successor. Grantor, by instrument duly recorded in the real estate records of Pitkin County, Colorado, may designate a party to succeed to all the rights, privileges and remedies of Grantor hereunder. 12. Term. The term of this easement shall be permanent and perpetual, so long as the City shall comply with the terms, provisions and conditions set forth herein. 13. Successors and Assigns. All the provisions of this easement, including the benefits and burdens created thereby, shall run with the land and be binding upon all persons who hereafter acquire any interest in the property described in Exhibit "A", whether as an owner, renter, trust deed or mortgage beneficiary, or otherwise. All provisions of this Easement inure to the benefit of and be binding upon the parties hereto, their heirs, successors, assigns and personal representatives. 471100 Page: f 47 08/16/200202:27P SILVIA DAVIS PITKIN COUNTY CO R 235.00 D 0.00 38181-16 33 EXECUTION COPY GRANTOR: TOP OF MILL INVESTORS, LLC a Delaware limited liability company By: Print Name: Title: CITY: CITY OF ASPEN, a Colorado Municipal corporation By: Print Name: Title: ATTEST: Kathryn S. Koch, City Clerk APPROVED AS TO FORM: J6hn Wdreester, City Attorney 471100 Page: 34 of 47 08/16/2002 02:27P SILVIA DAVIS PITKIN COUNTY CO R 235.00 D 0.00 38181-16 34 EXECUTION COPY STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing Easement was acknowledged before me this day of 12002 by , as of Aspen Mountain Investors, LLC, a Delaware limited liability company. Witness my hand and official seal. My commission expires: Notary Public STATE OF COLOR -ADO ) ss. COUNTY OF PITKIN ) The foregoing Easement was acknowledged before me this day of , 2002 by Municipal corporation. as Witness my hand and official seal. My commission expires: Notary Public 471 100 08//16/2002f02 21P D 0.00 SILVIR DAMS PITKIN COUNTY CO R 235.00 38181-16 35 of the City of Aspen, a Colorado EXECUTION COPY EXHIBIT "A" TO EXHIBIT "A-2" [Attach Leal Description of Aspen Mountain Trail l+,asementj COUNTY OF PITKIN, STATE OF COLORADO. 4?A (Do e 36 of 47 I08/16D 0000 2:27P R 235.00 SILVIA 0PVIS PITKIN COUNTY Co 38181-16 36 EXECUTION COPY EXHIBIT "B" CITY OF ASPEN STORM DRAIN PIPE EASEMENT THIS EASEMENT is made on , 2002 and is granted by Top of Mill Investors, LLC, a Delaware limited liability company, hereinafter referred to as "Grantor," to the City of Aspen, Colorado, a Municipal corporation, hereinafter referred to as "the City." For good and valuable considerations, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows: 1. Easement. Grantor hereby grants to the City a non-exclusive twenty foot (20') foot wide utility easement, hereinafter referred to as the "Easement" over and across the real property located in Pitkin County, Colorado, more particularly described on Exhibit "A" attached hereto and incorporated herein, for use by the City solely for installation, maintenance and repair of a storm drain pipe. While the Easement runs through lands owned by Grantor, access to the Easement may only be obtained by first crossing other lands not owned by Grantor. Obtaining access to the Easement shall be the responsibility of the City. Except as specifically provided herein, no other lands of Grantor may be used to access the Easement and nothing herein shall be construed as a grant, express or implied, over lands of Grantor not described in Exhibit "A" for access to the Easement. Grantor reserves the right to use and enjoy the Easement and the land beneath and the airspace above for all purposes and uses which do not unreasonably interfere with the use and enjoyment by the City or members of the public of the rights herein granted. Without limitation to the foregoing, Grantor shall have the right to grant any easements to utility companies over or under the Easement. In the event that the City damages any landscaping or other improvements located in the Easement in connection with the rights granted hereunder, the City shall promptly repair any such damage and restore the land within the Easement to its prior condition. The Easement is granted subject to all existing easements, restrictions and covenants of record. 2. Easement Utilization. This Easement is solely for use by the City for installation, maintenance and repair of a storm drain pipe. The grant of the easement, as described herein, shall be strictly construed. 3. Amendment. This Easement and the rights and obligations granted and assumed herein may not be modified except by a writing signed by Grantor and City, or their respective successors and assigns, as applicable. 38181-16 37 II 471100 Page: 37 of 47 SILVIR DRVIS PITKIN COUNTY CO R 235.00/16/2002 02:27P EXECUTION COPY 4. Notices. Any notices given pursuant to the terms of this Easement shall be given by mailing the same, certified mail, return receipt requested, properly addressed and with postage fully prepaid, to the addresses provided below or to subsequent assigns, as applicable, as long as prior written notice of the change of address has been given to the other parties listed below. Said notices shall be sent to the parties hereto at the following address unless otherwise notified in writing: Grantor: Top of Mill Investors, LLC 1000 S. Galena Street Aspen, Colorado 81611 Attn: Scott Writer With a copy to: Ronald Garfield, Esq. Garfield & Hecht, P.C. 601 E. Hyman Avenue Aspen, Colorado 81611 City: City of Aspen 130 S. Galena Street Aspen, Colorado 81611 Attn: City Manager 5. Venue. Grantor and City agree that his Easement is made in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado. 6. Enforcement. Each of Grantor and the City shall have the right and power to bring suit in its own name for any legal or equitable relief due to lack of compliance with any provisions of this Easement. The failure of a party to insist upon the performance of any provisions or to exercise any right or option available to it, or to serve any notice or to institute any action, shall not be a waiver or a relinquishment for the future, of any such provision. If any court proceedings are instituted in connection with the rights of enforcement and remedies provided in this easement, the prevailing party shall be entitled to reimbursement of its costs and expenses, including reasonable attorneys' fees, in connection therewith. 7. Designation of Successor. Grantor, by instrument duly recorded in the real estate records of Pitkin County, Colorado, may designate a party to succeed to all the rights, privileges and remedies of Grantor hereunder. 8. Term. The term of this easement shall be permanent and perpetual, so long as the City shall comply with the terms, provisions and conditions set forth herein. 9. Successors and Assigns. All the provisions of this easement, including the benefits and burdens created thereby, shall run with the land and be binding upon all persons who hereafter 38181-16 38 471100 Page: 38 of 47 SILVIA DAVIS PITKIN COUNTY CO R 235.00 /16D2002 2.27E 0 00 EXECUTION COPY acquire any interest in the property described in Exhibit "A", whether as an owner, renter, trust deed or mortgage beneficiary, or otherwise. All provisions of this Easement inure to the benefit of and be binding upon the parties hereto, their heirs, successors, assigns and personal representatives. GRANTOR: TOP OF MILL INVESTORS, LLC a Delaware limited liability company By: Print Name: Title: CITY: CITY OF ASPEN, a Colorado Municipal corporation By: Print Name: Title: ATTEST: Kathryn S. Koch, City Clerk APPROVED AS TO FORM: John Worcester, 6ty ' Attorney 471100 08/16 2002f 047 2?27P CO R 235.00 SILVIA DAVIS PITKIN COUNTY D 0.00 38181-16 39 EXECUTION COPY STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing Easement was acknowledged before me this day of 52002 by , as Delaware limited liability company. Witness my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) ss. COUNTY OF PITKIN ) of Top of Mill Investors, LLC, a The foregoing Easement was acknowledged before me this day of , 2002 by , as of the City of Aspen, a Colorado Municipal corporation. Witness my hand and official seal. My commission expires: Notary Public 471100 Page. 40 Of 47 SILVIA DAVIS PITKIN COUNTY CO R 235.00 1 16 D 0 2 : 27P 00 38181-16 40 EXECUTION COPY EXHIBIT "A" TO EXHIBIT "B" (Legal Description of Storm Drain Pipe Easement) Twenty foot (20') wide utility easement between Parcels 4 and 5 and over Open Space Parcel A, according to the Final Plat of Top of Mill Subdivision/PUD, a planned community recorded 2002 in Book at Page as Reception No. COUNTY OF PITKIN, STATE OF COLORADO. 11111111111111111111111 III! 111111111111111111111111111 38181-16 41 471 100 Page: 41 of 47 08/15/2002 02:27F 00 0 0.00 EXHIBIT 'C' TOP OF MILL SUBDIVISION / PUD SCHEDULE OF PUBLIC IMPROVEMENTS May 31, 2002 INTRODUCTION EXHIBIT _ Below is an updated schedule of the public improvements for the Top of Mill project including estimated costs developed with the General Contractor for the project, Resort Builders. This list is based on the site improvements anticipated in the Construction Management Plan for the project but includes only right-of-way improvements and main utility extensions that benefit the project and parcels as a whole. I have excluded utility service lines and improvements internal to each parcel. SITE IMPROVEMENTS Common public improvements to serve the overall Top of Mill Subdivision / PUD project site are shown on drawings submitted as exhibits to the Final Plat titled GRADING & DRAINAGE PLAN, ROAD PLAN & PROFILE and SCHEMATIC UTILITY PLAN and include the following: 1. Excavation and removal of approximately 28,000 cubic yards of excess fill to bring the site back to the base elevations utilized in the site grading plan. Estimated cost: $300,000. 2 Construction of approximately 1,000 linear feet of sidewalk both in the public right-of- way (820 linear feet) and internal to the project site. Estimated cost: $23,000. 3. Installation of two handicap sidewalk ramps at the intersection of South Mill and Summit Streets. Estimated cost: $1,200. 4. Installation of up to 4 street lights in the public right-of-way and on the private access. Estimated cost: $8,000. 5. Construction of approximately 1,200 linear feet of new curb and gutter along the west side of South Mill Street and along the internal access road. Estimated cost: $23,100. 6. Construction of approximately 900 linear feet of 8 inch diameter ductile iron water main extension including two fire hydrants and related gate valves and fittings. Estimated cost: $89,700. 7. Construction of approximately 480 linear feet of 8 inch diameter PVC sewer main extension including 6 sewer manholes and appurtenances. Estimated cost: $61,400. ill 4711©0fill# Page; 42 of 47 SILVIq DgVIS PTKIN COUNTY CO R 235.00 /'6/20 2 02:27F May 31, 2002 Top of Mill Subdivision / PUD Schedule of Public Improvements Page 2 8. Installation of approximately 650 linear feet of electric primary, gas, phone and cable TV lines. $45,150. 9. Installation of site drainage improvements including approximately 620 I.f. of storm drain, 6 inlet structures and 3 manholes to handle storm runoff from new impervious areas. Estimated cost: $60,375. 10. Placement of 4,500 square yards of concrete paving. Estimated cost: $118,000. 11. Construction of approximately 500 linear feet of 4 foot wide gravel "Top of Mill Trail' in a 15 foot easement. Construction of approximately 590 linear feet of 4 foot wide gravel "Aspen Mountain Trail" in the 30 foot ski easement. Estimated cost: $17,000. Total estimated cost of the public improvements for the Top of Mill project; $ 746,925. JH/jh 00140SIA4 471100 Page; 43 of 47 SILVIR DRVIS PITKIN COUNTY CO R 235.00 /16/20000 2.27E EXHIBIT 'D' TOP OF MILL Date: May 15, 2002 Landscape Quantities Prepared By: DHM Design Corporation Parcel 1 Number Item Quantity Unit Unit Cost Total Cost 1 Sod 2,635 SF $1.00 $2,635 2 Native Seed 12,675 SF $1.00 $12,675 3 Cedar Mulch 1,395 SF $0.60 $837 4 Edging 87 LF $2.50 $218 5 Irrigation 16,705 SF $1.00 $16,705 6 Shrub Bed Prep 1,395 SF $1.70 $2,372 7 5 gal Shrubs 71 EA $45.00 $3,195 8 1 gal. Perennials 193 EA $14.00 $2,702 9 2.5" cal. Deciduous Trees 9 EA $550.00 $4,950 10 2.25" cal. Deciduous Trees 16 EA $400,00 $6,400 11 3" cal. Deciduous Trees 33 EA $500.00 $16,500 12 35' cal. Deciduous Trees 5 EA $600.00 $3,000 13 10' Evergreen Trees 3 EA $600.00 $1,800 14 14' Evergreen Trees 4 EA $1,200.00 $2,400 15 17' Evergreen Trees 2 EA $1,700.00 $3,400 Subtotal $79,788 3% Mobilization Fee $2,394 Total $82,182 Assumes that 12" of topsoil has been provided & placed by the Contractor Cobble mulch at dripline has not been included 471100 Page: 44 of 47 I 00 /16/D20000 2:271 3ILVIA DAVIS PITKIN COUNTY CO R 235 TOP OF MILL Date: May 15, 2002 Landscape Quantities Prepared By: DHM Design Corporation Parcel 2 Number Item Quantity Unit Unit Cost Total Cost 1 Sod 3,054 SF $1.00 $3,054 2 Native Seed 1,078 SF $1.00 $1,078 3 Cedar Mulch 130 SF $0.60 $78 4 Edging 185 LF $2.50 $463 5 Irrigation 4,262 SF $1.00 $4,262 6 Shrub Bed Prep 130 SF $1.70 $221 7 5 gal Shrubs 36 EA $45.00 $1,620 8 1 gal. Perennials 17 EA $14.00 $238 9 2.5" cal. Deciduous Trees 4 EA $550.00 $2,200 10 2.25" cal. Deciduous Trees 11 EA $400.00 $4,400 11 3" cal. Deciduous Trees 23 EA $500.00 $11,500 12 3.5" cal. Deciduous Trees 4 EA $600.00 $2,400 13 10' Evergreen Trees 4 EA $600.00 $2,400 14 14' Evergreen Trees 12 EA $1,200.00 $7,200 15 17' Evergreen Trees 3 EA $1,700.00 $5,100 Subtotal $46,214 3% Mobilization Fee $1,386 Total $47,600 Assumes that 12" of topsoil has been provided & placed by the Contractor Cobble mulch at dripline has not been included 47A A@0f as47 16/2002 02:27F R 235.00 D 0.00 51TA DAMS PITKIN 1 UCOUNTY CO TOP OF MILL Date: May 15, 2002 Landscape Quantities Prepared By: DHM Design Corporation Parcel 3 Number Item Quantity Unit Unit Cost Total Cost 1 Sod 785 SF $1.00 $785 2 Native Seed 4,780 SF $1.00 $4,780 3 Cedar Mulch 775 SF $0.60 $465 4 Edging 170 LF $2.50 $425 5 Irrigation 6,340 SF $1.00 $6,340 6 Shrub Bed Prep 775 SF $1.70 $1,318 7 5 gal Shrubs 31 EA $45.00 $1,395 8 1 gal. Perennials 58 EA $14.00 $812 9 2.5" cal. Deciduous Trees 4 EA $550.00 $2,200 10 2.25" cal. Deciduous Trees 9 EA $400.00 $3,600 11 3" cal. Deciduous Trees 9 EA $500.00 $4,500 12 3.5" cal. Deciduous Trees 0 EA $600.00 $0 13 10' Evergreen Trees 2 EA $600.00 $1,200 14 14' Evergreen Trees 1 EA $1,200.00 $600 15 17' Evergreen Trees 1 EA $1,700.00 $1,700 Subtotal $30,120 3% Mobilization Fee $904 Total $31,023 Assumes that 12" of topsoil has been provided & placed by the Contractor Cobble mulch at dripline has not been included 471100 Page: 46 of 47 SILVIR DAVIS PITKIN COUNTY CO R 235.00 /16D2002 2.27E 0.00 TOP OF MILL Date: May 15, 2002 Landscape Quantities Prepared By: DHM Design Corporation Infrastructure Parcel Number Item Quantity Unit Unit Cost Total Cost 1 Sod 835 SF $1.00 $835 2 Native Seed 12,675 SF $1.00 $12,675 3 Cedar Mulch 1,395 SF $0.60 $837 4 Edging 87 LF $2.50 $218 5 Irrigation 14,905 SF $1.00 $14,905 6 Shrub Bed Prep 1,395 SF $1.70 $2,372 7 5 gal Shrubs 74 EA $45.00 $3,330 8 1 gal. Perennials 142 EA $14.00 $1,988 9 2.5" cal. Deciduous Trees 10 EA $550.00 $5,500 10 2.25" cal. Deciduous Trees 6 EA $400.00 $2,400 11 3" cal. Deciduous Trees 9 EA $500.00 $4,500 12 3.5" cal. Deciduous Trees 2 EA $600.00 $1,200 13 10' Evergreen Trees 1 EA $600.00 $600 14 14' Evergreen Trees 2 EA $1,200.00 $1,200 15 17' Evergreen Trees 1 EA $1,700.00 $1,700 Subtotal $54,259 3% Mobilization Fee $1,628 Total $55,887 Assumes that 12" of topsoil has been provided & placed by the Contractor Cobble mulch at dripline has not been included 111111111111111111 i1111 111 Jill Jill Page: 47 Of 47 471100 SILVIq DAVIS PITKIN COUNTY CO R 8 1 6/200 00.002 27F 235.00 CITY OF ASPEN STORM DRAIN PIPE EASEMENT THIS EASEMENT is made on August 16, 2002 and is granted by Top of Mill Investors, LLC, a Delaware limited liability company, hereinafter referred to as "Grantor," to the City of Aspen, Colorado, a Municipal corporation, hereinafter referred to as "the City." For good and valuable considerations, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows: 1. Easement. Grantor hereby grants to the City a non-exclusive twenty foot (20') foot wide utility easement, hereinafter referred to as the "Easement" over and across the real property located in Pitkin County, Colorado, more particularly described on Exhibit "A" attached hereto and incorporated herein, for use by the City solely for installation, maintenance and repair of a storm drain pipe. While the Easement runs through lands owned by Grantor, access to the Easement may only be obtained by first crossing other lands not owned by Grantor. Obtaining access to the Easement shall be the responsibility of the City. Except as specifically provided herein, no other lands of Grantor may be used to access the Easement and nothing herein shall be construed as a grant, express or implied, over lands of Grantor not described in Exhibit "A" for access to the Easement. Grantor reserves the right to use and enjoy the Easement and the land beneath and the airspace above for all purposes and uses which do not unreasonably interfere with the use and enjoyment by the City or members of the public of the rights herein granted. Without limitation to the foregoing, Grantor shall have the right to grant any easements to utility companies over or under the Easement. In the event that the City damages any landscaping or other improvements located in the Easement in connection with the rights granted hereunder, the City shall promptly repair any such damage and restore the land within the Easement to its prior condition. The Easement is granted subject to all existing easements, restrictions and covenants of record. 2. Easement Utilization. This Easement is solely for use by the City for installation, maintenance and repair of a storm drain pipe. The grant of the easement, as described herein, shall be strictly construed. 3. Amendment. This Easement and the rights and obligations granted and assumed herein may not be modified except by a writing signed by Grantor and City, or their respective successors and assigns, as applicable. 471101 Page: i of 5 08/16/2002 02:35P SILVIA DAVIS PITKIN COUNTY CO R 25.00 D 0.00 79320-1 4. Notices. Any notices given pursuant to the terms of this Easement shall be given by mailing the same, certified mail, return receipt requested, properly addressed and with postage fully prepaid, to the addresses provided below or to subsequent assigns, as applicable, as long as prior written notice of the change of address has been given to the other parties listed below. Said notices shall be sent to the parties hereto at the following address unless otherwise notified in writing: Grantor: Top of Mill Investors, LLC 1000 S. Galena Street Aspen, Colorado 81611 Attn: Scott Writer With a copy to: Ronald Garfield, Esq. Garfield & Hecht, P.C. 601 E. Hyman Avenue Aspen, Colorado 81611 City: City of Aspen 130 S. Galena Street Aspen, Colorado 81611 Attn: City Manager 5. Venue. Grantor and City agree that his Easement is made in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado. 6. Enforcement. Each of Grantor and the City shall have the right and power to bring suit in its own name for any legal or equitable relief due to lack of compliance with any provisions of this Easement. The failure of a party to insist upon the performance of any provisions or to exercise any right or option available to it, or to serve any notice or to institute any action, shall not be a waiver or a relinquishment for the future, of any such provision. If any court proceedings are instituted in connection with the rights of enforcement and remedies provided in this easement, the prevailing party shall be entitled to reimbursement of its costs and expenses, including reasonable attorneys' fees, in connection therewith. 7. Designation of Successor. Grantor, by instrument duly recorded in the real estate records of Pitkin County, Colorado, may designate a party to succeed to all the rights, privileges and remedies of Grantor hereunder. 8. Term. The term of this easement shall be permanent and perpetual, so long as the City shall comply with the terms, provisions and conditions set forth herein. 9. Successors and Assigns. All the provisions of this easement, including the benefits and burdens created thereby, shall run with the land and be binding upon all persons who hereafter acquire any interest in the property described in Exhibit "A", a LO M N LOmr, f- cf N e CD m T N N lD rnco d' a m 6, m in N UNNOMMOMM 0 Y a 79320-1 2 whether as an owner, renter, trust deed or mortgage beneficiary, or otherwise. All provisions of this Easement inure to the benefit of and be binding upon the parties hereto, their heirs, successors, assigns and personal representatives. GRANTOR: TOP OF MILL INVESTORS, LLC a Delaware limited liability c pany By: '��n C�lj L ) David Parker, Director CITY: CITY OF ASPEN, a Colorado Municipal corporation By: Pri Name: R Title: H k-Capl' ✓ ATTEST: Kathryn S. Koe ity lerk APPROVED AS TO FORM: r JQbn Wdreester; ity Attorney 471101 I08//16/2002 02:35P SILVIA DAVIS PITKIN COUNTY CO R 25.00 D 0.00 793?0-1 STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing Easement was acknowledged before me this 8ch day of August 2002 by David Parker as Director of Top of XCL LC, a Delaware limited liability company. .�.•'•".P-- Witness my hand and official My commission expires: Notary STATE OF COLOR -ADO ) ss. COUNTY OF PITKIN ) The foregoing asement L.was , 2002 by City f Aspen, a Colorado Municipal corl Witness my hand and office 1 seal. My commission expires: `+I' `t C My COMMISSION EXPIRES 11 /09/2002 Iged before me this LGt"" day of as {._ (�_� of the Y P/i,. N [Acknowledgements on Next Page] 471101 Page: 4 of 5 08/16/2002 02:35P SILVIA DAVIS PITKIN COUNTY CO R 25.00 D 0.00 79320-1 4 EXHIBIT "A" (Legal Description of Storm Drain Pipe Easement) Twenty foot (20') wide utility easement between Parcels 4 and 5 and over Open Space Parcel A, according to the Final Plat of Top of Mill Subdivision/PUD, a planned community recorded Aviot 2002 in Book � at Page_ as Reception No. 41109q COUNTY OF PITKIN, STATE OF COLORADO. 471 iOl 08%16/2@02 02:35P CO R 25.00 SILVIA DAVIS PITKIN COUNTY D 0.00 79320-1 5 N .AsPEJ Mau/orr-ro ►. y ID 1B - — i * �_, S_1tb_-U1 -JL-V JL nro-n-, Parcel 1, Top of Mill Subdivision/PUD Top of Mill Townhomes SITTWT01VF VICINITY MAP Plat Notes: 1. Bearings are relative to a bearing of S45°10'13"W 1618.04 feet between yellow plastic cap r(No L.S. Number) and rebar found at SE corner block 90, City of Aspen, and No. 5 rebar and d plastic cap L.S. 20151 found on southwesterly end of a S45'00'00"W 41.90 feet course on south line of Lot 3, Aspen Mountain Subdivision and P.U.D. f2. All reference to the recorded documents referred to the real estate records of the Clerk and Recorder of Pitkin County, Colorado. J. Unless otherwise noted or created by this plat all easements shown were created in the Final Plot, TOP OF MILL SUBDIVISION/PUD, as recorded August 16, 2002 in Plat Book 62 at Page 4, in the office of the Pitkin County Clerk and Recorder, State of Colorado (the 'PUD Plat'). 4. The locations of all Deflection Walls shown heron are taken from the PUD Plat. Refer to the PUD Plat and Master Declaration fcr requirements pertaining to Deflection Walls. 5. The rights and easements reserved by Declarant shall not merge with any interest owned by Declarant and shall remain separate and distinct property rights of Declarant until relinquished in accordance with law and shall not be deemed conveyed or assigned or transferred to any party unless on assignment is recorded as provided in the reservations section paragraph 2 herein. 6. References to the recording of the easements reserved on or created by this plat shall be ,to the Book, Page and/or Reception Number for this plat. v 7. This map was prepared on April 23, 2004. 8. Recorded easements and rights of way are shown according to Tale Policy issued by Pitkin County Title, Inc. as Case No. PCT18133LS dated August 22, 2003. 9. In accordance with C.R.S. 13-80-105: Notice: According to Colorado law, you must commence any legal action based upon any defect in this survey wirnin three (3) years after you first discover such defect. In no event may any action based upon any defect in this survey be commenced more than ten (10) years from the date of the certification shown hereon. Surveyor's Certificate: 1, Stephen L. Ehle certify that direction res of Title 38 L. 33 ` : M Registered Professional Land Surveyor in the State of Colorado, do hereby PLAT truly and correctly represents the results of a survey made under my vision and checking, which survey was prepared in accordance with Article 51 Wvised statutes. Date r -- — -- Easements: Declarant hereby reserves for itself, successors and assigns and grants, subject to the easements and other encumbrances shown or described on this plat and otherwise created or reserved herein, the following: 1. Access and Utility Easement — A Non —Exclusive Easement to Declarant and to utility providers for the installation and maintenance of utilities over, across and under (A) Any portions of the property designated as 'Utility Easement'; "Common Area" or Common Access Road'; (B) Any portions of the property which may be designated by Declarant pursuant to the Declaration including those to be located in the Common Areas or within the units for utility purposes including ducts, shafts, flues and conduit installation areas; and (C) Any portions of the property which may be designated by Declarant upon completion of the structures with common party walls or other structural components. In no event shall i the utility companies exercise the rights herein granted so as to interfere with the use of the units or easements except to the extent reasonably and timely necessary. Utilities shall include, but are not limited to, electric, gas, cable television, telephone, water lines and sanitary sewer lines. 2. Declarant hereby dedicates and sets apart to Top of Mill Townhomes Association, a Colorado nonprofit corporation (The 'Association') for the perpetual non—exclusive use and benefit of the owners, from time to time of the units, their guests and invitees an easement for vehicular and pedestrian ingress and egress on, across, over and through the Common Access Road shown hereon. Upon conveyance to the Association of said Common Access Road, the Association shall be: (i) Responsible for maintenance, including snowplowing, repair, upkeep and replacement of said area, (ii) Entitled to adopt and enforce reasonable rules and regulations concerning the use thereof. This dedication is made subject to the utility and other easements set forth hereon and the right of police, ambulance, fire fighting and other emergency vehicles to utilize the Common Access Road under all reasonable circumstances. J. Declarant hereby dedicates and sets apart to the owner, from time to time, of each unit for the perpetual, exclusive use and benefit of such owner, its guests and invitees, an easement for pedestrian and vehicular access and for vehicular parking purposes across, over and through the Common Access Road as shown hereon for such unit. This dedication is made subject to the utility and other easements set forth hereon and the right of police, ambulance, fire fighting and other emergency vehicles to utilize the Common Access Road under all reasonable circumstances. 4. All easements reserved by Declarant herein shall not merge with any fee interest owned by Declarant, either presently or in the future, but shad remain separate and distinct property rights of Declarant, it successors and assigns, until relinquished in accordance with law. Reservations: The Declarant hereby reserves to itself and its successors and assigns, the following: 1. Development. The right to enter upon the property for the performance of any work, for the development of the property, and the right to grant additional easements and relocate and/or substitute existing easements with respect to the property, as more specifically set forth and reserved in the Declaration. Declarant has reserved the right to develop, construct and sell the development as approved in the Development Approvals for the property and reserves the right to grant further easements as may be necessary for that development. 2. Successors and assigns. Successor and Assign of Declarant, as used herein, shall be deemed a Successor and Assign of Declarant for the purposes ,hereof only if specifically designated by Declarant by an instrument recorded in the records of Pitkin County, Colorado, and only to the particular rights and interests specifically designated therein. 3. When the Declaration is recorded, only those units identified in the Declaration shall be subject to the Declaration. Declarant reserves the right to subject additional units to the Declaration, from time —to —time, by recording supplements to the Declaration. 4. With respect to the easements dedicated and/or reserved hereon, Declarant reserves the right, but has no obligation, to record a document specifying the precise boundaries of any specific easement or easements within the described easement areas. Community Development Director Approval: This SUBDIVISION PLAT was reviewed and approved by the Community Development Director of the City of Aspen, Colorado on this ____ day of ________--, 2004. l� Julie Ann Woods, Director VISA/ ��7 � �_ -- � ���nl✓ e Cit ineer's�Approval : A IyC T is SUBDIVISION PLAT was reviewed and approved by the Cit engineer of the City of Aspen this --------------- day of ---------------- 200. Certificate of Ownership: Know all men by these presents that Top of Mill Investors, LLC, a Delaware limited liability company, ('Declarant') being the record owner of all that real property described as follows: Parcel 1, TOP OF MILL SUBDIVISiON/PUD, according to the Plot recorded August 16, 2002 in Plat Book 62 at Page 4, in the office of the Pitkin County Clerk and Recorder, State of Colorado; Has caused said real property to be laid out and surveyed as "TOP OF MiLL TOWNHOMES" in the City of Aspen, Pitkin County, Colorado subject to the easements and other liens and encumbrances shown or described on this Plat or in the Declaration for Top of Mill Townhomes ('Declaration'), to be recorded contemporaneously with this Plat, and in the Master Declaration of Protective Covenants for Top of Mill recorded October 4, 2002 as Reception No. 473073 ('Master Declaration'), incorporated by reference herein. Executed this __—_ day of ----------- 2004. Top of Mill Investors, LLC, a Delaware limited liability company BY" --------------------------- Title - -------------------------- State of Colorado) )ss County of Pitkin ) The foregoing instrument was acknowledged before me this __-- day of ___--_____, 2004 by _____________________as ---------------- for Top of Mill Investors, LLC, a Delaware limited liability company. Witness My Hand and Official Seal. My commission expires: ___________________________ Notary Public Lien Holder Consent Wells Fargo Bank West, N.A., a national banking association, being the beneficiary of that certain Construction Deed of Trust dated September 16, 2003 and recorded September 16, 2003 at Reception No. 488514, which Deed of Trust encumbers the real property shown hereon, hereby consents to and approves the filing of this Plat and the Declaration in accordance with the covenants, reservations, easements, obligations and conditions appearing hereon and therein and agrees that said Deed of Trust shall be subordinate to this Plat and the Declaration. Executed this ------- day of ---------------- 2004. Wells Fargo Bank West, N.A. BY: ------------------------ Print Name: ter' Title: 1 STATE OF _____________ ) )ss y COUNTY OF ----------- ) The foregoing Lien holder Consent was acknowledged before me this ____ day of ________ 2004, by --------------------- (name) as --------------- (title), of Wells Fargo Bank West, N.A. WITNESS my hand and official seal. My Commission expires: ------------------------------- Notary Public Title Examiner's Certificate: The undersigned, a duly authorized representative of Pitkin County Title, inc., a title company regularly doing business in Pitkin County, Colorado does hereby certify that the person listed as owner on this Plat holds fee simple title to the within described real property, free and clear of all liens and encumbrances except those shown or described on this Plat. Dated this _—__ day of ----------- 2004. BY- ----------------------------- Print Name & Title: State of Colorado) )ss County of Pitkin ) The foregoing instrument was acknowledged before me this --__ day of ----------- 2004 by ---------------------as title examiner for Pitkin County Title, Inc. Witness My Hand and Official Seal. My commission expires: --------------------------- Notary Public Clerk & Recorders Certificate: l hereby certify that this SUBDIVISION PLAT was accepted for recording in the Office of the Clerk and Recorder of Pitkin County, Colorado, at ----- o'clock __.m. on this ______ day of --------------- 2004 and is duly recorded in Plat Book --__ at Page ____ as Reception No. __________. -------------------------- _ _____ City Engineer Pitkin County Clerk & Recorder Notie. According to Co%rodo Law. you must commence any /ego/ action based upon any defect in this survey within three years after you first discover such defect. /n no event moy any /egos action based upon any defect in this survey be commenced more Mon ten years from the dote of the certification shown hereon. - SCHMUESER I GORDON I MEYER E N G 1 N E E R S & S U R V E Y O R S SCHMUESER GORDON MEYER 118 W. 6th Street, Suite 200 Glenwood Springs, Colorado 81601 (970) 945-1004 FAX (970) 945-5948 Aspen, Colorado (970) 925-6727 Crested Butte, CO (970) 349-5355 E-mail: survey@sgm-ine.com Top of Mill Townhomes B R REVISION DATE BY Subdivision Pla t of Parcel 1 Top of Mill Sub/PUD _ Job No. 2002-199.002 a Drown by. tkm Date. 05111104 OF a fff���..�� ` Approved. Fi/e: TopOfMi//Unit 1-fp 1 n M GRAPHIC SCALE 20 40 ( IN FEET ) 1 inch = 20 ft. Fnd �,5 Rebar &Cap / / L S 15710 23'26 41,18' j OPEN SPA CE i wgL�ECT/ON PARCEL B i i (J 0 UNLt EAST ,440% / Common Access Rood & Utility Easement Alb&v. According to Colorado Low, you must commence any legal action based upon any defect in this survey within three years after you first discover such defect. In no event may any legal action based upon any defect in this survey be commenced more than ten Years from the dote of the certification shown hereon. Common Area Fnd BL M BC/CONC \- Fnd Bend J5 Rebar PARCEL #8 WEN SPA CE PARCEL A 4;z�llw Subdivision Pla t of Parcel 1, Top of Mill Su lb di visjon/P UD Top of Mill Town -homes Fnd. PK NAIL & WASHER LS 9184 &0 6- undo age 4---- PARCEL #2 LINE TABLE LINE LENGTH BEARING L 1 5.07 506 08 50"W L2 16.30 N75 04 23"W L3 25.96 N674637"E L 4 2.92 S75 00 00 "E L5 27.97 N155725E L6 25.61 N74 02 35"W L 7 30.18 S67 46 37"W L8 11.65 N15 49 501E Ui 27.96 N155725 E L 12 8.00 N74 02 35 "W L 13 8.00 N155725 E L 14 70.38 S74 59'12'E L15 36.10 S145049"W L 16 17.28 S75 04'12'E L 17 6.82 N14 49'19'E Legend M Water Valve OSewer Manhole ET Electric Transformer Utility Pedestal Fire Hydrant CURVE TABLE CURIE RADIUS LENGTH TANGENT CHORD BEARING DELTA Cf 78.94 28.07 14.19 27.93 S0438'03"W 202233" C2 386.50 12. 30 6.15 12. JO S26 59'17"W 149 23" C3 3.50 5. 33 J. 33 4. 83 S1732 24 E 8773 59" C4 380.53 32.54 16.28 32.53 S232756"W 454 00" C5 380.53 37.29 18.66 37.28 I S1872 29 "W 536 54 " C6 380.51 40.18 20.11 40.16 S12 22 32"W 6 03'01 " C7 380.53 32.32 16.17 32.31 S06 55 02 "W 4 5159 " C8 380. 53 6. 31 3.16 6. 31 SO4 00'32 "W 0 5701 " C9 78.94 14.24 7.14 14.22 S0939'16 "W 10 20'07" CIO 4.00 J. 94 2.15 J. 78 S25 04 59 - 1 56 24 52" C11 366. 75 118.52 59.78 118. 01 5-12 08 23"W 1830'59" C12 8.50 12.02 7.26 1 11.04 S617 f 00"W 8100 59" 0