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HomeMy WebLinkAboutLand Use Case.Smuggler Park Sub.0029.2017.ASLUPATH: G/DRIVE /ADMINISTRATIVE/ADMIN/LANDUSE CtSE DOCS 7Lj THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER 0029. 2017.ASLU PROJECT ADDRESS 301 OAK PARK LANE PARCEL ID SMUGGLER PARK SUB (NO PID#) PLANNER JUSTIN BARKER CASE DESCRIPTION APPROVAL DOCS FOR SP HOA REPRESENTATIVE BENDONADAMS DATE OF FINAL ACTION 12/11/2017 CLOSED BY ANGIE SCOREY 1.3.18 Land Use [rT?' ANi 7.ASLU 1 0/2017 APPLICATIONr• •• DOCUMENTS V r SMUGGLER HOME OWNERS ; 14AJAXAVE aAM ASPEN CO 81611 '` Phone (970j920-1357 l ican ❑Q Owner -is applicant? ❑ Contractor is applicant? Lastname ISMUGGLER HOME OWNERS— First'name 14AJAXAVE Phone (970)920-1357 Cust # Address ASPEN CO 81611 30294 Email Lender Last name ! First name Phone ( ) - Address se�verj at1 1 of �( �• 1 vaw RECEPTION#: 643707, R: $78.00, D: $0.00 DOC CODE: AGREEMENT Pg 1 of 14, 12/11/2017 at 02:18:52 PM Janice K. Vos Caudill, Pitkin County, CO AMENDED DEVELOPMENT AGREEMENT FOR SMUGGLER PARK SUBDIVISION THIS DEVELOPMENT AGREEMENT (her inafter the "Development Agreement") is made and entered into this � day of , 2017, by and between THE CITY OF ASPEN, COLORADO, a munici corporation (hereinafter referred to as "City"), and THE SMUGGLER PARK HOMEOWNERS ASSOCIATION (herein after referred to as "SPHOA"). WITNESSETH: WHEREAS, SPHOA submitted to the City for approval an application to amend the Planned Development and Subdivision land use allowances and limitations applicable to all Residential Lot within Parcel A of the Smuggler Park Subdivision. The application gained approval for the following adjustments: • An amendment to the applicability and specific requirements of the City's Residential Design Standards for development within the subdivision. • A change to the parking requirement for development within the subdivision. • An ability to combine lightwells and stairwells with adjacent excavated areas. • Clarity on the technique for measuring height of structures within the subdivision. • Clarity on the ability to develop Accessory Dwelling Units within the subdivision. In addition, SPHOA is seeking certain existing requirements from past approvals to be clarified and restated, including: • The dimensional allowance and limitations for development within the subdivision. • Use and occupancy limitations for the residences within the subdivision. Collectively, the foregoing is referred to as the "Amendment"; and, WHEREAS, the Precise Plan and Subdivision Agreement for Smuggler Mobile Home Park was approved and accepted by the City of Aspen City Council on February 22, 1982, and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 424, Page 780, as reception number 240495; and, WHEREAS, an Amendment to the Precise Plan and Subdivision Agreement for Smuggler Mobile Home Park was approved and accepted by the City of Aspen City Council on September 27, 1982, and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 439, Page 213, as reception number 247331; and, WHEREAS, an Amendment to the Precise Plan and Subdivision Agreement for Smuggler Mobile Home Park was approved and accepted by the City of Aspen City Smuggler Park Development Agreement Page 1 ANW 1%00 Council on May 14, 1987, and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 535, Page 975, as reception number 288795; and, WHEREAS, the Third Amendment to Precise Plan and Subdivision Agreement for Smuggler Mobile Home Park was approved and accepted by the City of Aspen and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 699, Page 982, as reception number 352683; and, WHEREAS, the Final Subdivision Plat of Smuggler Mobile Home Park and Grant of Easements was approved and accepted by the City of Aspen City Council on April 7, 1982 and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 13, Page 25 & 26, as reception number 240496; and, WHEREAS, the First Amended Plat of Smuggler Mobile Home Park Subdivision was approved and accepted by the City of Aspen City Council on May 6, 1987 and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 19, Page 61, as reception number 288794; and, WHEREAS, the Second Amended Plat of Smuggler Mobile Home Park Subdivision was approved and accepted by the City of Aspen City Council on January 7, 1993, and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 30, Page 20, as reception number 352684; and, WHEREAS, the Third Amended Plat of Smuggler Mobile Home Park Subdivision was approved and accepted by the City of Aspen on October 26, 2000, and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 54, Page 71, as reception number 448308; and, WHEREAS, on July 11, 2016, the City of Aspen City Council reviewed and approved Ordinance 12, Series 2016, granting Minor Planned Development Amendment approval; and, WHEREAS, the SPHOA submitted to the City for execution and recordation, this Development Agreement ("Agreement") in compliance with the form, content, and timing requirements of Chapter 26.490; and, WHEREAS, City has fully considered the Agreement, the other terms and conditions included in Ordinance 12, Series of 2016 and the effects of the proposed Amendment on adjoining and neighboring properties and property owners; and, WHEREAS, City has imposed certain conditions and requirements in connection with its approval of the Amendment and the execution and recordation of the Agreement, such matters being necessary to protect, promote and enhance the public welfare; and Smuggler Park Development Agreement Page 2 ,%W WHEREAS, SPHOA is willing to acknowledge, accept, abide by and faithfully perform the conditions and requirements imposed by the City of Aspen in approving the Amendment; and, WHEREAS, the Agreement meets the requirements of Aspen Municipal Code Chapter 26.490 ensuring each item and condition of approval is documented to the satisfaction of the Community Development Director, the City Attorney, and the Mayor. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, the approval, execution and acceptance of the Agreement for recordation by City, and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE I. PURPOSE AND EFFECT OF DEVELOPMENT AGREEMENT A. Purpose. The purpose of this Development Agreement is to set forth the complete and comprehensive understanding and agreement of the parties with the respect to the allowances and limitations of development within Parcel A of the Smuggler Park Subdivision and to enumerate all terms and conditions under which such development of Residential Lots within the subdivision may occur. B. Effect. It is the intent of the parties that, upon recording, this Development Agreement shall effectively supersede and replace Ordinance 40, Series 1990. In the event of any inconsistencies between the provisions of Ordinance 12, Series of 2016 and this Development Agreement, the provisions of Ordinance 12, Series of 2016 shall control. ARTICLE II ZONING, REGULATORY APPROVALS, DEVELOPMENT AND USE REQUIREMENTS AND RESTRICTIONS A. 87 Lot Subdivision Parcel A of the Smuggler Park Subdivision is comprised of 86 Residential Lots and One Non -Residential Lot housing the common building with a meeting room and trash/recycling. The subdivision also includes roadways, common areas, common parking, and common trash/recycling facilities. B. Each Residential Lot is Allowed One Single -Family Home Each Residential Lot within Parcel A may be developed with one Single -Family residence, as such term is defined by the City of Aspen. Each residence may be developed by use of the full range of construction techniques allowed for Smuggler Park Development Agreement Page 3 a development within the City of Aspen, including but not limited to, modular construction, manufactured home, mobile home, "stick -built," and other construction techniques as permitted by the City of Aspen from time to time. C. Minimum Lot Size Each Residential Lot shall be a minimum of 2,400 square feet. D. Allowable Floor Area Each Residential Lot may have up to a maximum of 2,000 square feet of floor area. The following method shall be used to measure allowable floor area: i Above Grade Space Area counts 100% towards maximum allowable, with no exemptions I Below Grade Space Area counts 50% towards maximum allowable, with no exemptions Garage and Shed First 500 square feet is exempt. Area above Space 500 s.f. counts 100% towards maximum allowable, with no exemptions j E. Setbacks The minimum setbacks are as follows: Front ' Minimum of 0 feet. _..__._.... ------ - _... —— Sides Minimum of 10 feet on one side and a minimum of 0 feet on the other side. Placement of development on each Lot is subject to approval by the Smuggler Park Architectural Control Committee. Rear — Minimum of 5 feet. Prohibitions I Accessory buildings and required egress are I prohibited in required setbacks F. Allowable Height and Measurement Method Each Lot is allowed a height of 15 feet. Height shall be measured according to the City of Aspen Land Use Code, as may be amended from time to time. Height shall be measured from the midpoint of the lot's average slope. In cases where the lot's slope has been modified, the average elevation of the lot's corners shall be used to determine the lot's average slope. The exceptions and exemptions to height limits, as prescribed in the City of Aspen Land Use Code, as amended from time to time, shall apply. Smuggler Park Development Agreement Page 4 `.r G. Accessory Dwelling Units Allowed Each Residential Lot may develop one Accessory Dwelling Unit in conformance with the City of Aspen Land Use Code, as may be amended from time to time, including allowances to apply for and gain approval for variations to the City's requirements. A deed restriction for any Accessory Dwelling Unit shall be recorded prior to building permit approval. Any tenant within an approved ADU shall be required to qualify through the Aspen/Pitkin County Housing Authority. H. Minimum Required Parking Each Lot shall be required to supply the minimum number of off-street parking spaces required by the City of Aspen Land Use Code, as may be amended from time to time. The required spaces may be within the Lot or within the area of the roadway easement adjacent to the Lot between the curb line and the property. This common area was developed to be used as off-street parking by each homeowner. The required parking may be provided through a combination of these methods. I. Residential Design Standards and Variations: Each Residential Lot shall be required to comply with the City of Aspen Residential Design Standards, as may be amended from time to time, with the following approved variations: • Porch Size. The required porch size is reduced to a minimum of 25 square feet with a minimum depth of 4 feet. • Porch Location. The required porch may be located on the front of the house (facing the street) or along the side of the house (facing the side yard) with the front -most element of the porch within 25 feet of the front -most wall of the building. • Principal Window. The minimum required principal window size is reduced to 2 feet by 4 feet. • Garage Width. Garages may be no more than 50% of the total width of the front facade of the structure. • Garage Location. Garages are not required to be set -back from the front facade of the house. Each Lot remains eligible to apply for and gain additional variations to the City of Aspen Residential Design Standards as may be allowed in the City of Aspen Land Use Code. J. Architectural Control Committee Review The Smuggler Park HOA utilizes an Architectural Control Committee to review placement and design of development on each Lot. The SPHOA maintains its own standards and procedures for this review and is separate and apart from the City of Aspen. K. Combining Certain Features in the Side Yard Setback. Certain features can be combined in the side yard setback. This is limited to light wells and stairwells as required by adopted Building or Fire Codes and landscape Smuggler Park Development Agreement Page 5 w.rr walls, berms, retaining walls and similar structures which do not exceed thirty (30) inches above or below grade, pursuant to the allowances in the City of Aspen Land Use Code, as may be amended. L. Sale and Occupancv Limitations. The Residential Lots are subject to sale and occupancy limitations as follows: Primary Residence. Any individual or individuals who own a Lot must personally occupy the Lot as their primary residence during the period of ownership. Any purchaser of a Lot must agree, as a condition of sale, that they will in fact occupy the Lot as their primary residence. Qualified Purchasers. The following restrictions shall apply in determining whether a purchaser is qualified to purchase a Lot: a. The Lot shall be offered for sale to persons employed within the City of Aspen or Pitkin County jurisdictions, or other individuals deemed qualified by the Aspen/Pitkin County Housing Authority, including but not limited to, qualified retirees and pensioners. b. Should there be no qualified purchasers as stated in a. above after a period of four (4) months from the date the Lot is first listed for sale; the Property may then be offered for sale to any resident of Pitkin County. The purchaser or purchasers must agree as a condition of sale and, in fact, must personally occupy such Property as a primary place of residence during the period of ownership, and their occupancy must be approved by Smuggler Homeowners' Association. c. Any purchaser of a Lot must agree, as a condition of sale, that they will in fact occupy the Lot as their primary residence. Resale A>reement. Any individual or individuals who own a Lot must complete a Smuggler Park Subdivision Resale Agreement with the Aspen/Pitkin County Housing Authority, a draft of which is attached as Exhibit A, the form of which may be amended from time to time. ARTICLE III NONCOMPLIANCE AND REQUEST FOR AMENDMENTS OR EXTENSIONS In the event that the City has reason to believe that the SPHOA is not acting in substantial compliance with the terms of this Agreement, the City shall send the SPHOA a notice of non-compliance, specifying the alleged noncompliance. After such notice is given, the SPHOA and the City shall make good faith efforts to resolve the alleged lack of compliance. If the SPHOA and the City are not able to reach a mutually acceptable solution within thirty (30) days of the City's notice of non-compliance, the matter shall be submitted to the City Hearing Officer for a determination. The SPHOA Smuggler Park Development Agreement Page 6 shall have the right to file a petition appealing the City Hearing Officer's determination to City Council, which review by City Council shall appeal in accordance to the Aspen Municipal Code, as amended. 2. Upon the receipt of such petition, the City Council shall promptly schedule a hearing to consider the matters set forth in the Hearing Officer's determination of noncompliance and in the petition. The hearing shall be convened and conducted pursuant to the procedures normally established by the City Council for other appeals. If the City Council determines by that the record supports the finding that a noncompliance exists which has not been remedied, it may issue such orders as may be appropriate, including an order to remedy the non-compliance within such reasonable time as the City Council may determine, but not less than thirty (30) days. 3. Notwithstanding the foregoing, no order terminating any approval previously granted by the City Council, Planning and Zoning Commission or Historic Preservation Commission shall be issued without a finding of the City Council that the record on appeal warrants such action and affording the owner a reasonable time to remedy such noncompliance. A final determination of noncompliance which has not been remedied or for which no variance has been granted may, at the option of City Council, and upon written notice to the owner, terminate any of such approvals which are reasonably related to the requirement(s) with which the owner has failed to comply. Alternatively, the City Council may grant such variances, extensions of time or amendments to this Agreement as it may deem appropriate under the circumstances. 4. Within twenty (20) days of the receipt of an order from the City Council determining non-compliance, the SPHOA 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 noncompliance still exists, or b. Whether a variance, extension of time or amendment to this Agreement should be granted with respect to any such noncompliance that is determined to exist. 5. In addition to the foregoing, SPHOA may, on its own initiative, at any time, petition the City Council for a variance, an amendment to this Agreement. The City Council may grant such variances, amendments to this Agreement, or extensions of time 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 the owner demonstrates by a preponderance of the evidence that the reasons for the delay(s) which necessitate said extension(s) are beyond the control of the owner, despite good faith efforts on its part to perform in a timely manner. Smuggler Park Development Agreement Page 7 `how cm ARTICLE IV GENERAL PROVISIONS 1. The provisions hereof shall be binding upon and inure to the benefit of SPHOA and the City and their respective successors and assigns. 2. This PD Development Agreement shall be subject to and construed in accordance with the laws of the State of Colorado. 3. If any of the provisions of this PD Development 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 PD Development Agreement, and the application of any such provision, paragraph, sentence, clause, phrase, word, or section in any other circumstances shall not be affected thereby. 4. In the event of any conflict between Ordinance 12 and this Agreement, the terms and provisions of Ordinance 12, as may be duly modified, shall govern and control. This PD Development Agreement contains the entire understanding between the parties hereto with respect to the transactions contemplated herein, and except as otherwise specifically provided herein, may be altered or amended from time to time only by written instruments executed by all parties hereto that are affected by the proposed amendment. 6. Numerical and title headings contained in this PD Development 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. 7. Notices to be given to the parties to this PD Development Agreement shall be considered to be given if hand -delivered or if deposited in the United States Mail to the parties by registered or certified mail at the addresses indicated below, or such other addresses as may be substituted upon written notice by the parties or their successors or assigns: City of Aspen City Manager and City Attorney 130 South Galena Street Aspen, CO 81611 HOA President Smuggler Park Home Owners Association 301 Oak Lane Aspen, CO 81611 Smuggler Park Development Agreement Page 8 En 8. This PD Development Agreement may be executed in counterparts, in which case all such counterparts together shall constitute one and the same instrument, which is binding on all of the parties thereto, notwithstanding that all of the parties are not signatory to the original or the same counterpart. Facsimile or electronic signatures shall be treated as original signatures hereon. 9. 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 thereof or interests therein, their respective successors, grantees or assigns, and further shall inure to the benefit of and be specifically enforceable by or against the parties hereto, their respective successors, grantees or assigns. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the day and year first above written. CITY: City of Aspen, Corrado, a municip� l corporation By: Steven Sk Attest: Linda Manning, City Cler APPROVED AS TO FORM: James R. True, City Attorney SPHOA: Smuggler Park Home Owners Association Troy Miller, resident [notary blocks on following page] Smuggler Park Development Agreement Page 9 VW r..r STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this"!4y of k �- , 2017, by Steven Skadron as Mayor and Linda Manning as City Clerk of the C ty of Aspen, Colorado, a municipal corporation. Witness m han and official seal. T L, NELSON NOTA `I'►�tssion e pires: „ w STATE OF COLORADO ' 4 NOTARY IO #20014030017 Notary Public ,.� Cantemher 25, 2021 ANGELA JUNE SCOREY NOTARY PUBLIC ) S?ATE of COLORADO STATE OF COLORADO NOTARY ID #20154011826 ss. My Commission Expires March 23, 2019 COUNTY OF ) The foregoing instrument was acknowledged before me this .2 day of 2017, by Troy Miller as President of the Smuggler Park Home Owners Ass iation. Witness my hand and official seal. My commission expires: , zq Notary Pu lic EXHIBIT LIST A — Smuggler Park Subdivision Resale Agreement Smuggler Park Development Agreement Page 10 Lon Exhibit A SMUGGLER PARK SUBDIVISION RESALE AGREEMENT THIS AGREEMENT made and entered into this day of 2017 by and between (hereinafter referred to as "Owner"), and the County of Pitkin, State of Colorado and through its designee, ASPEN/PITKIN COUNTY HOUSING AUTHORITY (hereinafter called "Housing Authority") a duly constituted multi jurisdictional housing authority established pursuant to the FIFTH AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT by and between the City of Aspen, Colorado (the "City") and Pitkin County, Colorado (the "County"), dated December 18, 2013 and recorded at Reception No. 607311 on January 15, 2014 of the records of the Pitkin County Clerk and Recorders Office. WITNESSETH WHEREAS, the Owner has purchased that real property located at Aspen, Colorado (hereinafter the "Property"), more specifically described as follows: Lot , First Amended Plat, SMUGGLER PARK SUBDIVISION, according to the Plat thereof recorded in the office of the County Clerk and Recorder of Pitkin County, Colorado on May 14, 1987 in Plat Book 19 at Page 61 as Reception No. 288794; Plat recorded January 7, 1993 in Plat Book 30 at Page 20 as Reception No. 352684; the Third Amended Plat, Smuggler Park Subdivision, according to the Plat thereof recorded in the office of the County Clerk and Recorder of Pitkin County, Colorado on October 26, 2000 in Plat Book 54, Page 71 and on January 2, 2001 in Plat Book 55, Page 54 as Reception No. 450166, County of Pitkin, State of Colorado. WHEREAS, the Owner acknowledges that the Property is subject to certain resale restrictions as contained in the Amendment to Precise Plan and Subdivision Agreement for Smuggler Mobile Home Park recorded in Book 535 at Page 975 of the records of Pitkin County, Colorado, which restrictions are for addressing the housing needs of the area; WHEREAS, this document supersedes any previous deed restriction agreement for occupancy and resale associated with this unit; and WHEREAS, the parties hereto desire to ensure that, upon resale, the Property is again made available to satisfy the need for employee housing in the City of Aspen and in Pitkin County. NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10) and other good and valuable consideration, the parties agree as follows: Sale of Property. At any time the Owner intends to sell the Property, the Owner shall notify the Housing Authority in writing of his/her intention to do so. The Housing Authority shall qualify prospective purchasers per paragraph 2 of this agreement. The Seller (Owner) is not required to sell the property through the Housing Authority. If Seller does not sell the Property through the Housing Authority, Seller shall pay a fee of one -quarter percent (1/4%) of the total sales price at the time of closing to the Housing Authority. If the Seller lists the Property with the Housing Authority, one percent (1 %) of the listing price shall be paid to the Housing Authority at the time of the listing with an additional amount to be paid by Seller at the time of closing, for a total equal to two percent (2%) of the total sale price 2. Qualified Purchasers. The following restrictions shall apply in determining whether a purchaser is qualified to purchase said Property: a. The Property shall be offered for sale to persons employed within the City of Aspen or Pitkin County, or other individuals deemed qualified by the Aspen/Pitkin County Housing Authority, including but not limited to, qualified retirees and pensioners. Any individual or individuals who purchase said Property must agree, as a condition of sale and, in fact, must personally occupy the Property as a primary residence during the period of ownership. Should there be no qualified purchasers as stated in a. above after a period of four (4) months from the date the Property is first listed for sale, the Property may then be offered for sale to any resident of Pitkin County. The purchaser or purchasers must agree as a condition of sale and, in fact, must personally occupy such Property as a primary place of residence during the period of ownership, and their occupancy must be approved by Smuggler Homeowners' Association. Exempt Transfers. The following transfers of any interest in the Property, unless adopted to avoid the provisions of this Agreement, shall be exempt from its provisions: a. a transfer by operation of law of a deceased person's interest to the surviving joint tenant; b. a transfer of an interest by will or inheritance; C. a transfer by genuine gift without any consideration thereof, d. a transfer of an interest to a trustee for the benefit of the Owner or the Owner's spouse or issue; a transfer by operation of law of an interest of an Owner to any other co-owner (or co - owners) where such co-owner (or co -owners) hold title on the date of such transfer as tenant -in -common or as a joint tenant; f. a transfer of an interest by Treasurer's deed pursuant to a sale for delinquent taxes; or by a Sheriffs or Public or Private Trustee's deed pursuant to a judgment execution or foreclosure sale, but only for debts constituting a purchase money mortgage. Anything above to the contrary notwithstanding, if the Property shall be transferred in any manner described in paragraphs a through f above, the transferee, his grantees or successors in interest, shall be bound by the terms and conditions of this Agreement in the same manner and degree as if no exempt transfer had occurred. 4. Burden of Agreement. If any Property burdened hereunder be sold and conveyed without compliance herewith, such sale shall be wholly null and void and shall confer no title whatsoever upon the intended purchaser. Every conveyance of the Property shall, for all purposes, be deemed to include and incorporate by reference in such instrument of conveyance, even without reference hereto, the covenants contained herein. Change in Residency. The Owner agrees that, in the event he ceases to utilize the Property as his sole and exclusive place of residence when in Aspen, Colorado he will offer the same for sale pursuant to the provisions of this Agreement. The Owner shall be deemed to have ceased to utilize the Property as his sole and exclusive place of residence when in Aspen, Colorado, by failing to personally reside in the Property for more than six (6) months per year without such justification as is acceptable to the Board of Directors of the Smuggler Homeowners' Association. It is recognized that no Property may be leased for any period without the written permission of the Smuggler Homeowners' Association. Wrongful Interest. In the event any person with an ownership interest acquires such interest without intending to use the same as his sole and exclusive place of residence, then all other persons with an ownership interest shall simultaneously offer the same for sale pursuant to the provisions of this Agreement, and the Property shall become available for purchase pursuant to the provisions of Paragraphs 1 through 4 above. Notices. Any notice that is required to be given hereunder shall be given by mailing the same, certified mail, to any address provided herein or given as the current mailing address of the party. Covenants to Run with Land. The provisions of this Agreement shall be covenants running with the land, be binding upon the Owner and the City, his or its heirs, successors and assigns (and enforceable by any of them) and shall run for the period through May 13, 2037. 9. Definition of Owner and Housing Authority. The term "Owner" as used herein shall refer to all persons (without regard to number or gender) or entities having an ownership interest in the condominium Property that is the subject of this Agreement. The term "Housing Authority" shall mean and include the City Council of the City of Aspen and/or such person or entity now or hereafter designated by the City Council to administer the terms of this Agreement on behalf of the City. 10. Obligations at Closing. At the time of any sale of the Property pursuant to the terms of this Agreement, the Owner shall provide (at his cost) title insurance (or other evidence of title); and any taxes, assessments, utility bills, etc., shall be pro rated to the date of closing. Each party to the transaction shall assume his customary closing costs. ]I. Remedies Upon Breach. There is hereby reserved to the parry's hereto all remedies provided by law for breach of this Agreement or any of its terms and the prevailing party in any litigation shall be entitled to an award of its reasonable attorney's fees. Now 'VW 12. Acknowledgment of Understanding. The Owner acknowledges that he has read and fully understands and accepts the terms and conditions of this Agreement limiting the resale and rental of the Property; and further acknowledges that he is relying upon no oral representations qualifying or limiting the terms hereof. IN WITNESS WHEREOF, the parties hereto have executed this instrument on the date and year above first written. OWNER: NAMES STATE OF COLORADO ss. COUNTY OF PITKIN ) The foregoing document was acknowledged and sworn to before me this day of 20_ by My commission expires: Witness my hand and official seal. Notary Public ACCEPTANCE BY THE ASPEN/PITKIN COUNTY HOUSING AUTHORITY Michael Kosdrosky, Executive Director 210 W. Hyman, Suite 202, Aspen, Colorado 81611 STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing document was acknowledged and sworn to before me this day of 20_ by Michael Kosdrosky, Executive Director, Aspen/Pitkin County Housing Authority. Witness my hand and official seal. My Commission Expires: Notary Public AMENDED DEVELOPMENT AGREEMENT FOR SMUGGLER PARK SUBDIVISION THIS DEVELOPMENT AGREEMENT (her 'nafter the "Development Agreement") is made and entered into this day of �i , 2017, by and between THE CITY OF ASPEN, COLORADO, a municip corporation (hereinafter referred to as "City"), and THE SMUGGLER PARK HOMEOWNERS ASSOCIATION (herein after referred to as "SPHOA"). WITNESSETH: WHEREAS, SPHOA submitted to the City for approval an application to amend the Planned Development and Subdivision land use allowances and limitations applicable to all Residential Lot within Parcel A of the Smuggler Park Subdivision. The application gained approval for the following adjustments: • An amendment to the applicability and specific requirements of the City's Residential Design Standards for development within the subdivision. • A change to the parking requirement for development within the subdivision. • An ability to combine lightwells and stairwells with adjacent excavated areas. • Clarity on the technique for measuring height of structures within the subdivision. • Clarity on the ability to develop Accessory Dwelling Units within the subdivision. In addition, SPHOA is seeking certain existing requirements from past approvals to be clarified and restated, including: • The dimensional allowance and limitations for development within the subdivision. • Use and occupancy limitations for the residences within the subdivision. Collectively, the foregoing is referred to as the "Amendment"; and, WHEREAS, the Precise Plan and Subdivision Agreement for Smuggler Mobile Home Park was approved and accepted by the City of Aspen City Council on February 22, 1982, and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 424, Page 780, as reception number 240495; and, WHEREAS, an Amendment to the Precise Plan and Subdivision Agreement for Smuggler Mobile Home Park was approved and accepted by the City of Aspen City Council on September 27, 1982, and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 439, Page 213, as reception number 247331; and, WHEREAS, an Amendment to the Precise Plan and Subdivision Agreement for Smuggler Mobile Home Park was approved and accepted by the City of Aspen City Smuggler Park Development Agreement Page 1 Nomw_ . MW Council on May 14, 1987, and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 535, Page 975, as reception number 288795; and, WHEREAS, the Third Amendment to Precise Plan and Subdivision Agreement for Smuggler Mobile Home Park was approved and accepted by the City of Aspen and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 699, Page 982, as reception number 352683; and, WHEREAS, the Final Subdivision Plat of Smuggler Mobile Home Park and Grant of Easements was approved and accepted by the City of Aspen City Council on April 7, 1982 and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 13, Page 25 & 26, as reception number 240496; and, WHEREAS, the First Amended Plat of Smuggler Mobile Home Park Subdivision was approved and accepted by the City of Aspen City Council on May 6, 1987 and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 19, Page 61, as reception number 288794; and, WHEREAS, the Second Amended Plat of Smuggler Mobile Home Park Subdivision was approved and accepted by the City of Aspen City Council on January 7, 1993, and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 30, Page 20, as reception number 352684; and, WHEREAS, the Third Amended Plat of Smuggler Mobile Home Park Subdivision was approved and accepted by the City of Aspen on October 26, 2000, and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 54, Page 71, as reception number 448308; and, WHEREAS, on July 11, 2016, the City of Aspen City Council reviewed and approved Ordinance 12, Series 2016, granting Minor Planned Development Amendment approval; and, WHEREAS, the SPHOA submitted to the City for execution and recordation, this Development Agreement ("Agreement") in compliance with the form, content, and timing requirements of Chapter 26.490; and, WHEREAS, City has fully considered the Agreement, the other terms and conditions included in Ordinance 12, Series of 2016 and the effects of the proposed Amendment on adjoining and neighboring properties and property owners; and, WHEREAS, City has imposed certain conditions and requirements in connection with its approval of the Amendment and the execution and recordation of the Agreement, such matters being necessary to protect, promote and enhance the public welfare; and Smuggler Park Development Agreement Page 2 .J WHEREAS, SPHOA is willing to acknowledge, accept, abide by and faithfully perform the conditions and requirements imposed by the City of Aspen in approving the Amendment; and, WHEREAS, the Agreement meets the requirements of Aspen Municipal Code Chapter 26.490 ensuring each item and condition of approval is documented to the satisfaction of the Community Development Director, the City Attorney, and the Mayor. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, the approval, execution and acceptance of the Agreement for recordation by City, and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE I. PURPOSE AND EFFECT OF DEVELOPMENT AGREEMENT A. Purpose. The purpose of this Development Agreement is to set forth the complete and comprehensive understanding and agreement of the parties with the respect to the allowances and limitations of development within Parcel A of the Smuggler Park Subdivision and to enumerate all terms and conditions under which such development of Residential Lots within the subdivision may occur. B. Effect. It is the intent of the parties that, upon recording, this Development Agreement shall effectively supersede and replace Ordinance 40, Series 1990. In the event of any inconsistencies between the provisions of Ordinance 12, Series of 2016 and this Development Agreement, the provisions of Ordinance 12, Series of 2016 shall control. ARTICLE II ZONING, REGULATORY APPROVALS, DEVELOPMENT AND USE REQUIREMENTS AND RESTRICTIONS A. 87 Lot Subdivision Parcel A of the Smuggler Park Subdivision is comprised of 86 Residential Lots and One Non -Residential Lot housing the common building with a meeting room and trash/recycling. The subdivision also includes roadways, common areas, common parking, and common trash/recycling facilities. B. Each Residential Lot is Allowed One Single -Family Home Each Residential Lot within Parcel A may be developed with one Single -Family residence, as such term is defined by the City of Aspen. Each residence may be developed by use of the full range of construction techniques allowed for Smuggler Park Development Agreement Page 3 OM development within the City of Aspen, including but not limited to, modular construction, manufactured home, mobile home, "stick -built," and other construction techniques as permitted by the City of Aspen from time to time. C. Minimum Lot Size Each Residential Lot shall be a minimum of 2,400 square feet. D. Allowable Floor Area Each Residential Lot may have up to a maximum of 2,000 square feet of floor area. The following method shall be used to measure allowable floor area: �• o � � a e ee Above Grade Space Area counts 100% towards maximum allowable, with no exemptions w BeloGrade Space Area counts 5 0 % towards maximum allowable, with no exemptions Garage and Shed First 500 square feet is exempt. Area above Space 500 s.f. counts 100% towards maximum allowable, with no exemptions E. Setbacks The minimum setbacks are as follows: Front Minimum of 0 feet ------ _ - - -- _. Sides 1 Minimum of 10 feet on one side and a minimum of 0 feet on the other side. Placement of development on each Lot is subject to approval by the Smuggler Park _ Architectural Control Committee. Rear Minimum o 5_ f 5 feet. Prohibitions Accessory buildings and required egress are prohibited in required setbacks F. Allowable Height and Measurement Method Each Lot is allowed a height of 15 feet. Height shall be measured according to the City of Aspen Land Use Code, as may be amended from time to time. Height shall be measured from the midpoint of the lot's average slope. In cases where the lot's slope has been modified, the average elevation of the lot's corners shall be used to determine the lot's average slope. The exceptions and exemptions to height limits, as prescribed in the City of Aspen Land Use Code, as amended from time to time, shall apply. Smuggler Park Development Agreement Page 4 "fir► *40W G. Accessory Dwelling Units Allowed Each Residential Lot may develop one Accessory Dwelling Unit in conformance with the City of Aspen Land Use Code, as may be amended from time to time, including allowances to apply for and gain approval for variations to the City's requirements. A deed restriction for any Accessory Dwelling Unit shall be recorded prior to building permit approval. Any tenant within an approved ADU shall be required to qualify through the Aspen/Pitkin County Housing Authority. H. Minimum Required Parking Each Lot shall be required to supply the minimum number of off-street parking spaces required by the City of Aspen Land Use Code, as may be amended from time to time. The required spaces may be within the Lot or within the area of the roadway easement adjacent to the Lot between the curb line and the property. This common area was developed to be used as off-street parking by each homeowner. The required parking may be provided through a combination of these methods. I. Residential Design Standards and Variations: Each Residential Lot shall be required to comply with the City of Aspen Residential Design Standards, as may be amended from time to time, with the following approved variations: • Porch Size. The required porch size is reduced to a minimum of 25 square feet with a minimum depth of 4 feet. • Porch Location. The required porch may be located on the front of the house (facing the street) or along the side of the house (facing the side yard) with the front -most element of the porch within 25 feet of the front -most wall of the building. • Principal Window. The minimum required principal window size is reduced to 2 feet by 4 feet. • Garage Width. Garages may be no more than 50% of the total width of the front facade of the structure. • Garage Location. Garages are not required to be set -back from the front facade of the house. Each Lot remains eligible to apply for and gain additional variations to the City of Aspen Residential Design Standards as may be allowed in the City of Aspen Land Use Code. I Architectural Control Committee Review The Smuggler Park HOA utilizes an Architectural Control Committee to review placement and design of development on each Lot. The SPHOA maintains its own standards and procedures for this review and is separate and apart from the City of Aspen. K. Combining Certain Features in the Side Yard Setback. Certain features can be combined in the side yard setback. This is limited to light wells and stairwells as required by adopted Building or Fire Codes and landscape Smuggler Park Development Agreement Page 5 walls, berms, retaining walls and similar structures which do not exceed thirty (30) inches above or below grade, pursuant to the allowances in the City of Aspen Land Use Code, as may be amended. L. Sale and Occunancy Limitations. The Residential Lots are subject to sale and occupancy limitations as follows: Primary Residence. Any individual or individuals who own a Lot must personally occupy the Lot as their primary residence during the period of ownership. Any purchaser of a Lot must agree, as a condition of sale, that they will in fact occupy the Lot as their primary residence. Qualified Purchasers. The following restrictions shall apply in determining whether a purchaser is qualified to purchase a Lot: a. The Lot shall be offered for sale to persons employed within the City of Aspen or Pitkin County jurisdictions, or other individuals deemed qualified by the Aspen/Pitkin County Housing Authority, including but not limited to, qualified retirees and pensioners. b. Should there be no qualified purchasers as stated in a. above after a period of four (4) months from the date the Lot is first listed for sale; the Property may then be offered for sale to any resident of Pitkin County. The purchaser or purchasers must agree as a condition of sale and, in fact, must personally occupy such Property as a primary place of residence during the period of ownership, and their occupancy must be approved by Smuggler Homeowners' Association. c. Any purchaser of a Lot must agree, as a condition of sale, that they will in fact occupy the Lot as their primary residence. Resale Agreement. Any individual or individuals who own a Lot must complete a Smuggler Park Subdivision Resale Agreement with the Aspen/Pitkin County Housing Authority, a draft of which is attached as Exhibit A, the form of which may be amended from time to time. ARTICLE III NONCOMPLIANCE AND REQUEST FOR AMENDMENTS OR EXTENSIONS In the event that the City has reason to believe that the SPHOA is not acting in substantial compliance with the terms of this Agreement, the City shall send the SPHOA a notice of non-compliance, specifying the alleged noncompliance. After such notice is given, the SPHOA and the City shall make good faith efforts to resolve the alleged lack of compliance. If the SPHOA and the City are not able to reach a mutually acceptable solution within thirty (30) days of the City's notice of non-compliance, the matter shall be submitted to the City Hearing Officer for a determination. The SPHOA Smuggler Park Development Agreement Page 6 shall have the right to file a petition appealing the City Hearing Officer's determination to City Council, which review by City Council shall appeal in accordance to the Aspen Municipal Code, as amended. 2. Upon the receipt of such petition, the City Council shall promptly schedule a hearing to consider the matters set forth in the Hearing Officer's determination of noncompliance and in the petition. The hearing shall be convened and conducted pursuant to the procedures normally established by the City Council for other appeals. If the City Council determines by that the record supports the finding that a noncompliance exists which has not been remedied, it may issue such orders as may be appropriate, including an order to remedy the non-compliance within such reasonable time as the City Council may determine, but not less than thirty (30) days. 3. Notwithstanding the foregoing, no order terminating any approval previously granted by the City Council, Planning and Zoning Commission or Historic Preservation Commission shall be issued without a finding of the City Council that the record on appeal warrants such action and affording the owner a reasonable time to remedy such noncompliance. A final determination of noncompliance which has not been remedied or for which no variance has been granted may, at the option of City Council, and upon written notice to the owner, terminate any of such approvals which are reasonably related to the requirement(s) with which the owner has failed to comply. Alternatively, the City Council may grant such variances, extensions of time or amendments to this Agreement as it may deem appropriate under the circumstances. 4. Within twenty (20) days of the receipt of an order from the City Council determining non-compliance, the SPHOA 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 noncompliance still exists, or b. Whether a variance, extension of time or amendment to this Agreement should be granted with respect to any such noncompliance that is determined to exist. 5. In addition to the foregoing, SPHOA may, on its own initiative, at any time, petition the City Council for a variance, an amendment to this Agreement. The City Council may grant such variances, amendments to this Agreement, or extensions of time 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 the owner demonstrates by a preponderance of the evidence that the reasons for the delay(s) which necessitate said extension(s) are beyond the control of the owner, despite good faith efforts on its part to perform in a timely manner. Smuggler Park Development Agreement Page 7 In ,.a✓` ARTICLE IV GENERAL PROVISIONS 1. The provisions hereof shall be binding upon and inure to the benefit of SPHOA and the City and their respective successors and assigns. 2. This PD Development Agreement shall be subject to and construed in accordance with the laws of the State of Colorado. 3. If any of the provisions of this PD Development 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 PD Development Agreement, and the application of any such provision, paragraph, sentence, clause, phrase, word, or section in any other circumstances shall not be affected thereby. 4. In the event of any conflict between Ordinance 12 and this Agreement, the terms and provisions of Ordinance 12, as may be duly modified, shall govern and control. This PD Development Agreement contains the entire understanding between the parties hereto with respect to the transactions contemplated herein, and except as otherwise specifically provided herein, may be altered or amended from time to time only by written instruments executed by all parties hereto that are affected by the proposed amendment. 6. Numerical and title headings contained in this PD Development 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. 7. Notices to be given to the parties to this PD Development Agreement shall be considered to be given if hand -delivered or if deposited in the United States Mail to the parties by registered or certified mail at the addresses indicated below, or such other addresses as may be substituted upon written notice by the parties or their successors or assigns: City of Aspen City Manager and City Attorney 130 South Galena Street Aspen, CO 81611 HOA President Smuggler Park Home Owners Association 301 Oak Lane Aspen, CO 81611 Smuggler Park Development Agreement Page 8 8. This PD Development Agreement may be executed in counterparts, in which case all such counterparts together shall constitute one and the same instrument, which is binding on all of the parties thereto, notwithstanding that all of the parties are not signatory to the original or the same counterpart. Facsimile or electronic signatures shall be treated as original signatures hereon. 9. 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 thereof or interests therein, their respective successors, grantees or assigns, and further shall inure to the benefit of and be specifically enforceable by or against the parties hereto, their respective successors, grantees or assigns. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the day and year first above written. CITY: City of en, Co orado unicipal' corporation By: Steven Skadron, NAayor Attest: inda Manning, City Cler APPROVED AS TO FORM: Tames R. True, City Attorney SPHOA: Smuggler Park Home Owners Association Troy Miller, ent [notary blocks on following page] Smuggler Park Development Agreement Page 9 w401W „w STATE OF COLORADO ) ss. COUNTY OF PITKIN ) � 2 f The foregoing instrument was acknowledged before me this 23 ay of Aim 4 st— , 2017, by Steven Skadron as Mayor and Linda Manning as City Clerk of the City of Aspen, Colorado, a municipal corporation. Witness my hand and official seal. T PA !.. NF 4_`�r)N �; . fz,RY Fi,itst.`iFJ' commi OF L` iU:eF2ADo if(S September 25, 2021 STATE OF COLORADO COUNTY OF expires: I ZD ZOZ Notary Public ANGELA JUNK SSCOREY NOTARY PUBLIC STATE OF COLORADO NOTARY ID #20154011826 ss. Mv- _ �nmis wiz E�,pires March 23, 20.9 The foregoing instrument was acknowledged before me this a- day of 2017, by Troy Miller as President of the Smuggler Park Home Owners Assoc ation. Witness my hand and official seal. My commission expires:"2�, 2C\1 Notary Pu lic EXHIBIT LIST A — Smuggler Park Subdivision Resale Agreement Smuggler Park Development Agreement Page 10 Vr° 'MOP Exhibit A SMUGGLER PARK SUBDIVISION RESALE AGREEMENT THIS AGREEMENT made and entered into this day of 2017 by and between (hereinafter referred to as "Owner"), and the County of Pitkin, State of Colorado and through its designee, ASPEN/PITKIN COUNTY HOUSING AUTHORITY (hereinafter called "Housing Authority") a duly constituted multi jurisdictional housing authority established pursuant to the FIFTH AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT by and between the City of Aspen, Colorado (the "City") and Pitkin County, Colorado (the "County"), dated December 18, 2013 and recorded at Reception No. 607311 on January 15, 2014 of the records of the Pitkin County Clerk and Recorders Office. WITNESSETH WHEREAS, the Owner has purchased that real property located at Aspen, Colorado (hereinafter the "Property"), more specifically described as follows: Lot , First Amended Plat, SMUGGLER PARK SUBDIVISION, according to the Plat thereof recorded in the office of the County Clerk and Recorder of Pitkin County, Colorado on May 14, 1987 in Plat Book 19 at Page 61 as Reception No. 288794; Plat recorded January 7, 1993 in Plat Book 30 at Page 20 as Reception No. 352684; the Third Amended Plat, Smuggler Park Subdivision, according to the Plat thereof recorded in the office of the County Clerk and Recorder of Pitkin County, Colorado on October 26, 2000 in Plat Book 54, Page 71 and on January 2, 2001 in Plat Book 55, Page 54 as Reception No. 450166, County of Pitkin, State of Colorado. WHEREAS, the Owner acknowledges that the Property is subject to certain resale restrictions as contained in the Amendment to Precise Plan and Subdivision Agreement for Smuggler Mobile Home Park recorded in Book 535 at Page 975 of the records of Pitkin County, Colorado, which restrictions are for addressing the housing needs of the area; WHEREAS, this document supersedes any previous deed restriction agreement for occupancy and resale associated with this unit; and WHEREAS, the parties hereto desire to ensure that, upon resale, the Property is again made available to satisfy the need for employee housing in the City of Aspen and in Pitkin County. NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10) and other good and valuable consideration, the parties agree as follows: *40W rAW Sale of Property. At any time the Owner intends to sell the Property, the Owner shall notify the Housing Authority in writing of his/her intention to do so. The Housing Authority shall qualify prospective purchasers per paragraph 2 of this agreement. The Seller (Owner) is not required to sell the property through the Housing Authority. If Seller does not sell the Property through the Housing Authority, Seller shall pay a fee of one -quarter percent (1 /4%) of the total sales price at the time of closing to the Housing Authority. If the Seller lists the Property with the Housing Authority, one percent (1 %) of the listing price shall be paid to the Housing Authority at the time of the listing with an additional amount to be paid by Seller at the time of closing, for a total equal to two percent (2%) of the total sale price Qualified Purchasers. The following restrictions shall apply in determining whether a purchaser is qualified to purchase said Property: a. The Property shall be offered for sale to persons employed within the City of Aspen or Pitkin County, or other individuals deemed qualified by the Aspen/Pitkin County Housing Authority, including but not limited to, qualified retirees and pensioners. Any individual or individuals who purchase said Property must agree, as a condition of sale and, in fact, must personally occupy the Property as a primary residence during the period of ownership. b. Should there be no qualified purchasers as stated in a. above after a period of four (4) months from the date the Property is first listed for sale, the Property may then be offered for sale to any resident of Pitkin County. The purchaser or purchasers must agree as a .condition of sale and, in fact, must personally occupy such Property as a primary place of residence during the period of ownership, and their occupancy must be approved by Smuggler Homeowners' Association. Exempt Transfers. The following transfers of any interest in the Property, unless adopted to avoid the provisions of this Agreement, shall be exempt from its provisions: a. a transfer by operation of law of a deceased person's interest to the surviving joint tenant; b. a transfer of an interest by will or inheritance; C. a transfer by genuine gift without any consideration thereof, d. a transfer of an interest to a trustee for the benefit of the Owner or the Owner's spouse or issue; e. a transfer by operation of law of an interest of an Owner to any other co-owner (or co - owners) where such co-owner (or co -owners) hold title on the date of such transfer as tenant -in -common or as a joint tenant; a transfer of an interest by Treasurer's deed pursuant to a sale for delinquent taxes; or by a Sheriffs or Public or Private Trustee's deed pursuant to a judgment execution or foreclosure sale, but only for debts constituting a purchase money mortgage. Anything above to the contrary notwithstanding, if the Property shall be transferred in any manner described in paragraphs a through f above, the transferee, his grantees or successors in interest, shall NEW 1%W be bound by the terms and conditions of this Agreement in the same manner and degree as if no exempt transfer had occurred. 4. Burden of Agreement. If any Property burdened hereunder be sold and conveyed without compliance herewith, such sale shall be wholly null and void and shall confer no title whatsoever upon the intended purchaser. Every conveyance of the Property shall, for all purposes, be deemed to include and incorporate by reference in such instrument of conveyance, even without reference hereto, the covenants contained herein. 5. Change in Residency. The Owner agrees that, in the event he ceases to utilize the Property as his sole and exclusive place of residence when in Aspen, Colorado he will offer the same for sale pursuant to the provisions of this Agreement. The Owner shall be deemed to have ceased to utilize the Property as his sole and exclusive place of residence when in Aspen, Colorado, by failing to personally reside in the Property for more than six (6) months per year without such justification as is acceptable to the Board of Directors of the Smuggler Homeowners' Association. It is recognized that no Property may be leased for any period without the written permission of the Smuggler Homeowners' Association. 6. Wrongful Interest. In the event any person with an ownership interest acquires such interest without intending to use the same as his sole and exclusive place of residence, then all other persons with an ownership interest shall simultaneously offer the same for sale pursuant to the provisions of this Agreement, and the Property shall become available for purchase pursuant to the provisions of Paragraphs 1 through 4 above. 7. Notices. Any notice that is required to be given hereunder shall be given by mailing the same, certified mail, to any address provided herein or given as the current mailing address of the party. 8. Covenants to Run with Land. The provisions of this Agreement shall be covenants running with the land, be binding upon the Owner and the City, his or its heirs, successors and assigns (and enforceable by any of them) and shall run for the period through May 13, 2037. 9. Definition of Owner and Housing Authority. The term "Owner" as used herein shall refer to all persons (without regard to number or gender) or entities having an ownership interest in the condominium Property that is the subject of this Agreement. The term "Housing Authority" shall mean and include the City Council of the City of Aspen and/or such person or entity now or hereafter designated by the City Council to administer the terms of this Agreement on behalf of the City. 10. Obligations at Closing. At the time of any sale of the Property pursuant to the terms of this Agreement, the Owner shall provide (at his cost) title insurance (or other evidence of title); and any taxes, assessments, utility bills, etc., shall be pro rated to the date of closing. Each party to the transaction shall assume his customary closing costs. 11. Remedies Upon Breach. There is hereby reserved to the parry's hereto all remedies provided by law for breach of this Agreement or any of its terms and the prevailing party in any litigation shall be entitled to an award of its reasonable attorney's fees. +r. 0 12. Acknowledgment of Understanding. The Owner acknowledges that he has read and fully understands and accepts the terms and conditions of this Agreement limiting the resale and rental of the Property; and further acknowledges that he is relying upon no oral representations qualifying or limiting the terms hereof. IN WITNESS WHEREOF, the parties hereto have executed this instrument on the date and year above first written. OWNER: NAMES STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing document was acknowledged and sworn to before me this day of 20_ by My commission expires: Witness my hand and official seal. Notary Public ACCEPTANCE BY THE ASPEN/PITKIN COUNTY HOUSING AUTHORITY Michael Kosdrosky, Executive Director 210 W. Hyman, Suite 202, Aspen, Colorado 81611 STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing document was acknowledged and sworn to before me this _ day of 20 by Michael Kosdrosky, Executive Director, Aspen/Pitkin County Housing Authority. Witness my hand and official seal. My Commission Expires: Notary Public low +..s THE CITY OF ASPEN Land Use Application Determination of Completeness Date: April 5, 2017 Dear City of Aspen Land Use Review Applicant, We have received your land use application for Smuggler Park, Approval Documents and have reviewed it for completeness. We received the Amended/Restated Development Agreement on January 6, 2017 and apologize for the delay in the response time. ❑ Your Land Use Application is complete: Please submit the following to begin the land use review process. ❑ Digital copy of the entire application emailed to justin.barker@cityofaspen.com. Other submission items may be requested throughout the review process as deemed necessary by the Community Development Department. Please contact me at 429-2797 if you have any questions. Thank You, Justin arker, Senior Planner City of Aspen, Community Development Department For Office Use Only: Qualifying Applications: Mineral Rights No e Required New PD Yes No 1Subdivision, or PD (creating more than 1 additional lot) GMQS Allotments/ Residential Affordable Housing Yes No ✓ Commercial E.P.F.___ Lodging *4W RETAIN FOR P'ERUMair RECOW Agreement to Pay Application Fees An aizreement between the Citv of Aspen ("City"1 and1002q.& 17. Property Troy Miller, President Phone No.: 970.920.3949 Owner ("I"): Smuggler Park Home Owners Association Email: tcm29er@gmail.com Address of 301 Oak Lane Property: Aspen, CO 81611 (Subject of application) Billing 301Oak Lane Address: Aspen, CO 81611 (send bills here) 0 N I understand that the City has adopted, via Ordinance No., Series of 2011, review fees for Land Use applications and payment of these fees is a condition precedent to determining application completeness. I understand that as the property owner that I am responsible for paying all fees for this development application. For flat fees and referral fees: I agree to pay the following fees for the services indicated. I understand that these flat fees are non-refundable. $. flat fee for flat fee for $. flat fee for $. flat fee for For Deposit cases only: The City and I understand that because of the size, nature or scope of the proposed project, it is not possible at this time to know the full extent or total costs involved in processing the application. I understand that additional costs over and above the deposit may accrue. I understand and agree that it is impracticable for City staff to complete processing, review and presentation of sufficient information to enable legally required findings to be made for project consideration, unless invoices are paid in full. The City and I understand and agree that invoices mailed by the City to the above listed billing address and not returned to the City shall be considered by the City as being received by me. I agree to remit payment within 30 days of presentation of an invoice by the City for such services. I have read, understood, and agree to the Land Use Review Fee Policy including consequences for no -payment. I agree to pay the following initial deposit amounts for the specified hours of staff time. I understand that payment of a deposit does not render and application complete or compliant with approval criteria. If actual recorded costs exceed the initial deposit, I agree to pay additional monthly billings to the City to reimburse the City for the processing of my application at the hourly rates hereinafter ated. $ 975 deposit for hours of Community Development Department staff time. Additional time above the deposit amount will be billed at $325.00 per hour. $ deposit for hours of Engineering Department staff time. Additional time above the deposit amount will be billed at $325.00 per hour. City of Aspen: Jessica Garrow, AICP Community Development Director City Use: Fees Due: $_Received $ Property Own 12 1/s Name: Troy Miller Title: President Smuggler Park Home Owners Association `111r►' In ATTACHMENT 2 - LAND USE APPLICATION PROJECT: Name: Smuggler Park HOA Development Agreement Hr - Location: 301 Oak Lane; Aspen, CO 81611 �r 5 2017 Parcel ID # (REQUIRED) ' 0 NA - Entire Smuggler Park Subdivision / EN 1PPLICANT: kr Name: Smuggler Park HOA Address: c/o Troy Miller; HOA President; 301 Oak Lane; Aspen, CO 81611 Phone #: 970.920.3949 REPRESENTIVATIVE: Name: BendonAdams Address: 300 So. Spring St. #202; Aspen, CO 81611 Phone#: 970.925.2855 GMQS Exemption 0 GMQS Allotment Special Review ESA-8040 Greenline, Stream Margin, Hallam Lake Bluff, 0 Mountain View Plane Commercial Design Review Residential Design Variance Conditional Use Conceptual PUD Temporary Use Final PUD (& PUD Amendment) Subdivision = Conceptual SPA 0 Subdivision Exemption (includes Condominiumization) Lot Split Lot Line Adjustment EXISTING CONDITIONS: (description of existing buildings, uses, previous approvals, etc.) PD Amendment approval granted pursuant to Ordinance 12, 2016. PROPOSAL: (Description of proposed buildings, uses, modifications, etc.) PD Agreement to reflect approval granted. I �..o ...... ++h A+h F.. 11....d....7 [[[c nl1[. C Final SPA (&SPA Amendment) Small Lodge Conversion/ Expansion Other: 0 Pre -Application Conference Summary 0 Attachment #1, Signed Fee Agreement na Response to Attachment #3, Dimensional Requirements Form = Response to Attachment #4, Submittal Requirements — including Written Responses to Review Standards On al 3-D Model for large project All plans that are larger than 8.5" X 11" must be folded. A disk with an electric copy of all written text (Microsoft Word Format) must be submitted as part of the application. Large scale projects should include an electronic 3-D model. Your pre -application conference summary will indicate if you must submit a 3-D model. I cm w April 5, 2017 Mr. Justin Barker, AICP Senior Planner City of Aspen 130 So. Galena St. Aspen, Colorado 81611 RE: Smuggler Park Homeowners Association; Aspen, CO. Mr. Barker: Please accept this letter authorizing BendonAdams, LLC, to represent our interests in the Smuggler Park Homeowners Association and act on our behalf on matters reasonably associated in securing land use approvals for the Association. If there are any questions about the foregoing or if I can assist, please do not hesitate to call. Kind Regards, Troy Miller, President Smuggler Park HOA 301 Oak Lane Aspen, CO 81611 300 SO SPRING ST 1 202 1 ASPEN, CO 81611 970.925.2855 1 BENDONADAMS.COM Homeowner Association Compliance Policy All land use applications within the City of Aspen are required to include a Homeowner Association Compliance Form (this form) certifying the scope of work included in the land use application complies with all applicable covenants and homeowner association policies. The certification must be signed by the property owner or Attorney representing the property owner. Property Name: Troy Miller, President Owner ("I'T Email: tcm29er@gmail.com Phone No.: 920-3949 Address of Smuggler Park Flt Property: 301 Oak Lane (subject of Aspen, CO 81611 application) I certify as follows: (pick one) ❑ This property is not subject to a homeowners association or other form of private covenant. ❑ This property is subject to a homeowners association or private covenant and the improvements proposed in this land use application do not require approval by the homeowners association or covenant beneficiary. This property is subject to a homeowners association or private covenant and the improvements proposed in this land use application have been approved by the homeowners association or covenant beneficiary. I understand this policy and I understand the City of Aspen does not interpret, enforce, or manage the applicability, meaning or effect of private covenants or homeowner association rules or bylaws. I understand that this document is a public document. �kOwner signature date: Owner printed name: Troy Miller or, Attorney signature: Attorney printed name: date: 0 lm TILE CITY op ASPEN Land Use Application Determination of Completeness Date: March 28, 2017 Dear City of Aspen Land Use Review Applicant, We have received your land use application for Smuggler Park, Approval Documents and have reviewed it for completeness. We received the Amended/Restated Development Agreement on January 6, 2017 and apologize for the delay in the response time. ❑ Your Land Use Application is incomplete: Please submit the following missing submission items. ❑ Completed Land Use Application and signed fee agreement. ❑ Street address and legal description of the parcel on which development is proposed to occur, consisting of a current (no older than 6 months) certificate from a title insurance company, or attorney licensed to practice in the State of Colorado, listing the names of all owners of the property, and all mortgages, judgments, liens, easements, contracts and agreements affecting the parcel, and demonstrating the owner's right to apply for the Development Application. ❑ Applicant's name, address and telephone number in a letter signed by the applicant that states the name, address and telephone number of the representative authorized to act on behalf of the applicant. ❑ Signed HOA Compliance form. Other submission items may be requested throughout the review process as deemed necessary by the Community Development Department. Please contact me at 429-2797 if you have any questions. Thank You, i Jus Cin Barker, Senior Planner City of Aspen, Community Development Department For Office Use Only: Qualifying Applications: Mineral Rights NoJt**e Required New PD Yes No ! Subdivision, or PD (creating more than 1 additional lot) GMQS Allotments Residential Affordable Housing Yes No ✓ Commercial E.P.F._ _ Lodging THE CITY OF ASPEN Land Use Application Determination of Completeness Date: March 28, 2017 Dear City of Aspen Land Use Review Applicant, We have received your land use application for Smuggler Park, Approval Documents and have reviewed it for completeness. We received the Amended/Restated Development Agreement on January 6, 2017 and apologize for the delay in the response time. ❑ Your Land Use Application is incomplete: Please submit the following missing submission items. ❑ Completed Land Use Application and signed fee agreement. ❑ Street address and legal description of the parcel on which development is proposed to occur, consisting of a current (no older than 6 months) certificate from a title insurance company, or attorney licensed to practice in the State of Colorado, listing the names of all owners of the property, and all mortgages, judgments, liens, easements, contracts and agreements affecting the parcel, and demonstrating the owner's right to apply for the Development Application. ❑ Applicant's name, address and telephone number in a letter signed by the applicant that states the name, address and telephone number of the representative authorized to act on behalf of the applicant. ❑ Signed HOA Compliance form. Other submission items may be requested throughout the review process as deemed necessary by the Community Development Department. Please contact me at 429-2797 if you have any questions. Thank You, Jus m Barker, Senior Planner City of Aspen, Community Development Department For Office Use Only: Qualifying Applications: Mineral Rights Not** e Required New PD Yes No ✓ Subdivision, or PD (creating more than 1 additional lot) GMQS Allotments Residential Affordable Housing Yes No 7 Commercial E.P.F. Lodging AMENDED/RESTATED DEVELOPMENT AGREEMENT FOR SMUGGLER PARK SUBDIVISION RECEIVED MAR 15 2011 C�INt�yO PEN DEM'AENi THIS DEVELOPMENT AGREEMENT (hereinafter the "Development Agreement") is made and entered into this day of , 2017, by and between THE CITY OF ASPEN, COLORADO, a municipal corporation (hereinafter referred to as "City"), and THE SMUGGLER PARK HOMEOWNERS ASSOCIATION (herein after referred to as "SPHOA"). WITNESSETH: WHEREAS, SPHOA submitted to the City for approval an application to amend the Planned Development and Subdivision land use allowances and limitations applicable to all Residential Lot within the Smuggler Park Subdivision. The application gained approval for the following adjustments: • An amendment to the applicability and specific requirements of the City's Residential Design Standards for development within the subdivision. • A change to the parking requirement for development within the subdivision. • An ability to combine lightwells and stairwells with adjacent excavated areas. • Clarity on the technique for measuring height of structures within the subdivision. • Clarity on the ability to develop Accessory Dwelling Units within the subdivision. In addition, SPHOA is seeking certain existing requirements from past approvals to be clarified and restated, including: • The dimensional allowance and limitations for development within the subdivision. • Use and occupancy limitations for the residences within the subdivision. • Assessment of water tap fees Collectively, the foregoing is referred to as the "Amendment" ; and, WHEREAS, the Final Subdivision Plat of Smuggler Mobile Home Park and Grant of Easements was approved and accepted by the City of Aspen City Council on April 7, 1982 and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 13, Page 25 & 26; and, WHEREAS, the First Amended Plat of Smuggler Mobile Home Park Subdivision approved and accepted by the City of Aspen City Council on May 6, 1987 and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 19, Page 61; and, WHEREAS, the second Amended Plat of Smuggler Mobile Home Park Subdivision approved and accepted by the City of Aspen City Council on ?? and recorded Smuggler Park Development Agreement Page 1 *4w *490 with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 30, Page 20; and, WHEREAS, the third Amended Plat of Smuggler Mobile Home Park Subdivision approved and accepted by the City of Aspen and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 54, Page 71, as reception number 448308; and, WHEREAS, on July 11, 2016, the City of Aspen City Council reviewed and approved Ordinance 12, Series 2016, granting Minor Planned Development Amendment approval; and, WHEREAS, the SPHOA submitted to the City for execution and recordation, the this Development Agreement ("Agreement") in compliance with the form, content, and timing requirements of Chapter 26.490; and, WHEREAS, City has fully considered the Agreement, the other terms and conditions included in Ordinance 12 and the effects of the proposed Amendment on adjoining and neighboring properties and property owners; and, WHEREAS, City has imposed certain conditions and requirements in connection with its approval of the Amendment and the execution and recordation of the Agreement, such matters being necessary to protect, promote and enhance the public welfare; and WHEREAS, SPHOA is willing to acknowledge, accept, abide by and faithfully perform the conditions and requirements imposed by the City of Aspen in approving the Amendment; and, WHEREAS, the Agreement meets the requirements of Aspen Municipal Code Chapter 26.490 ensuring each item and condition of approval is documented to the satisfaction of the Community Development Director, the City Attorney, and the Mayor. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, the approval, execution and acceptance of the Agreement for recordation by City, and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE I. PURPOSE AND EFFECT OF DEVELOPMENT AGREEMENT A. Purpose. The purpose of this Development Agreement is to set forth the complete and comprehensive understanding and agreement of the parties with the respect to the allowances and limitations of development within the Smuggler Park Subdivision and to enumerate all terms and conditions under which such development of Residential Lots within the subdivision may occur. Smuggler Park Development Agreement Page 2 *A✓ err B. Effect. It is the intent of the parties that, upon recording, this Development Agreement shall effectively supersede and replace in their entirety the following documents, as they apply to the Smuggler Park Subdivision, and all previously recorded and unrecorded land use approvals applicable to the entire Smuggler Park Subdivision. In the event of any inconsistencies between the provisions of Ordinance 12 and this Development Agreement, the provisions of Ordinance 12 shall control. ARTICLE II ZONING, REGULATORY APPROVALS, DEVELOPMENT AND USE REQUIREMENTS AND RESTRICTIONS A. 87 Lot Subdivision The Smuggler Park Subdivision is comprised of 86 Residential Lots and One Non - Residential Lot housing the common building with a meeting room and trash/recycling. The subdivision also includes roadways, common areas, common parking, and common trash/recycling facilities. B. Each Residential Lot is Allowed One Single -Family Home Each Residential Lot within the may be developed with one Single -Family residence, as such term is defined by the City of Aspen. Each residence may be developed by use of the full range of construction techniques allowed for development within the City of Aspen, including but not limited to, modular construction, manufactured home, mobile home, "stick -built," and other construction techniques as permitted by the City of Aspen from time to time. C. Allowable Floor Area Each Residential Lot may have up to a maximum of 2,000 square feet of floor area. The following method shall be used to measure allowable floor area: D. Setbacks Smuggler Park Development Agreement Page 3 CM Lon The minimum setbacks are as follows: Minimum of 0 feet. Sides Minimum of 10 feet on one side and a minimum of 0 feet on the other side. Placement of development on each Lot is subject to approval by the Smuggler Park Architectural Control Committee. Rear Minimum of 5 feet. E. Allowable Height and Measurement Method Each Lot is allowed a height of 15 feet. Height shall be measured according to the City of Aspen Land Use Code, as may be amended from time to time. Height shall be measured from the midpoint of the lot's average slope. In cases where the lot's slope has been modified, the average elevation of the lot's corners shall be used to determine the lot's average slope. The exceptions and exemptions to height limits, as prescribed in the City of Aspen land Use Code, as amended from time to time, shall apply. F. Accessory Dwelling Units Allowed Each Residential Lot may develop one Accessory Dwelling Unit in conformance with the City of Aspen Land Use Code, as may be amended from time to time, including procedures to apply for and gain approval for variations to the City's requirements. G. Minimum Required Parking Each Lot shall be required to supply the minimum number of off-street parking spaces required by the City of Aspen Land Use Code, as may be amended from time to time. The required spaces may be within the Lot or within the area of the roadway easement adjacent to the Lot between the curb line and the property. This common area was developed to be used as off-street parking by each homeowner. The required parking may be provided through a combination of these methods. H. Residential Design Standards and Variations: Each Residential Lot shall be required to comply with the City of Aspen Residential Design Standards, as may be amended from time to time, with the following approved variations: Porch Size. The required porch size is reduced to a minimum of 25 square feet with a minimum depth of 4 feet. Porch Location. The required porch may be development on the front of the house (facing the street) or along the side of the house (facing the side yard). Principal Window. The reduced to 2 feet by 4 feet. minimum required principal window size is Smuggler Park Development Agreement Page 4 M 0 Garage Width. Garages may be up to 50% of the total width of the front fagade of the house. Clarify that total width of house plus garage. Garage Location. Garages are not required to be set -back from the front fagade of the house. The approved variations listed above do not require additional City review. Each Lot remains eligible to apply for and gain additional variations to the City of Aspen Residential Design Standards as may be allowed in the City of Aspen Land Use Code. I. Architectural Control Committee Review The Smuggler Park HOA utilizes an Architectural Control Committee to review placement and design of development on each Lot. The SPHOA maintains its own standards and procedures for this review and is separate and apart from the City of Aspen. I Combining Certain Features in the Side Yard Setback. Certain features can be combined in the side yard setback. This is limited to light wells and stairwells as required by adopted Building or Fire Codes and landscape walls, berms, retaining walls and similar structures which do not exceed thirty (30) inches above or below grade, pursuant to the allowances in the City of Aspen Land Use Code, as may be amended. K. Sale and Occupancy Limitations. The Residential Lots are subject to sale and occupancy limitations as follows: Primary Residence. Any individual or individuals who own a Lot must personally occupy the Lot as their primary residence during the period of ownership. Any purchaser of a Lot must agree, as a condition of sale, that they will in fact occupy the Lot as their primary residence. Qualified Purchasers. The following restrictions shall apply in determining whether a purchaser is qualified to purchase a Lot: a. The Lot shall be offered for sale to persons employed within the City of Aspen or Pitkin County jurisdictions, or other individuals deemed qualified by the Aspen/Pitkin County Housing Authority, including but not limited to, qualified retirees and pensioners. b. Should there be no qualified purchasers as stated in a. above after a period of four (4) months from the date the Lot is first listed for sale; the Property may then be offered for sale to any resident of Pitkin County. The purchaser or purchasers must agree as a condition of sale and, in fact, must personally occupy such Property as a primary place of residence during the period of ownership, and their occupancy must be approved by Smuggler Homeowners' Association. Smuggler Park Development Agreement Page 5 CM rn c. Any purchaser of a Lot must agree, as a condition of sale, that they will in fact occupy the Lot as their primary residence. ARTICLE III NONCOMPLIANCE AND REQUEST FOR AMENDMENTS OR EXTENSIONS 1. In the event that the City has reason to believe that the SPHOA is not acting in substantial compliance with the terms of this Agreement, the City shall send the SPHOA a notice of non-compliance, specifying the alleged noncompliance. After such notice is given, the SPHOA and the City shall make good faith efforts to resolve the alleged lack of compliance. If the SPHOA and the City are not able to reach a mutually acceptable solution within thirty (30) days of the City's notice of non-compliance, the matter shall be submitted to the City Hearing Officer for a determination. The SPHOA shall have the right to file a petition appealing the City Hearing Officer's determination to City Council, which review by City Council shall appeal in accordance to the Aspen Municipal Code, as amended. 2. Upon the receipt of such petition, the City Council shall promptly schedule a hearing to consider the matters set forth in the Hearing Officer's determination of noncompliance and in the petition. The hearing shall be convened and conducted pursuant to the procedures normally established by the City Council for other appeals. If the City Council determines by that the record supports the finding that a noncompliance exists which has not been remedied, it may issue such orders as may be appropriate, including an order to remedy the non-compliance within such reasonable time as the City Council may determine, but not less than thirty (30) days. 3. Notwithstanding the foregoing, no order terminating any approval previously granted by the City Council, Planning and Zoning Commission or Historic Preservation Commission shall be issued without a finding of the City Council that the record on appeal warrants such action and affording the owner a reasonable time to remedy such noncompliance. A final determination of noncompliance which has not been remedied or for which no variance has been granted may, at the option of City Council, and upon written notice to the owner, terminate any of such approvals which are reasonably related to the requirement(s) with which the owner has failed to comply. Alternatively, the City Council may grant such variances, extensions of time or amendments to this Agreement as it may deem appropriate under the circumstances. 4. Within twenty (20) days of the receipt of an order from the City Council determining non-compliance, the SPHOA 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 noncompliance still exists, or b. Whether a variance, extension of time or amendment to this Agreement should be granted with respect to any such noncompliance that is determined to exist. Smuggler Park Development Agreement Page 6 NOW' 5. In addition to the foregoing, SPHOA may, on its own initiative, at any time, petition the City Council for a variance, an amendment to this Agreement. The City Council may grant such variances, amendments to this Agreement, or extensions of time 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 the owner demonstrates by a preponderance of the evidence that the reasons for the delay(s) which necessitate said extension(s) are beyond the control of the owner, despite good faith efforts on its part to perform in a timely manner. ARTICLE IV GENERAL PROVISIONS 1. The provisions hereof shall be binding upon and inure to the benefit of SPHOA and the City and their respective successors and assigns. 2. This PD Development Agreement shall be subject to and construed in accordance with the laws of the State of Colorado. 3. If any of the provisions of this PD Development 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 PD Development Agreement, and the application of any such provision, paragraph, sentence, clause, phrase, word, or section in any other circumstances shall not be affected thereby. 4. In the event of any conflict between Ordinance 12 and this Agreement, the terms and provisions of Ordinance 12, as may be duly modified, shall govern and control. 5. This PD Development Agreement contains the entire understanding between the parties hereto with respect to the transactions contemplated herein, and except as otherwise specifically provided herein, may be altered or amended from time to time only by written instruments executed by all parties hereto that are affected by the proposed amendment. 6. Numerical and title headings contained in this PD Development 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. 7. Notices to be given to the parties to this PD Development Agreement shall be considered to be given if hand -delivered or if deposited in the United States Mail to the parties by registered or certified mail at the addresses indicated below, or such other Smuggler Park Development Agreement Page 7 En CM addresses as may be substituted upon written notice by the parties or their successors or assigns: City of Aspen City Manager and City Attorney 130 South Galena Street Aspen, CO 81611 Smuggler Park Home Owners Association 301 Oak Lane Aspen, CO 81611 With copies to: Scott Harper Scott Harper, P.C. 206 Cody Lane, Suite C Basalt, CO 81621 8. This PD Development Agreement may be executed in counterparts, in which case all such counterparts together shall constitute one and the same instrument, which is binding on all of the parties thereto, notwithstanding that all of the parties are not signatory to the original or the same counterpart. Facsimile or electronic signatures shall be treated as original signatures hereon. 9. 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 thereof or interests therein, their respective successors, grantees or assigns, and further shall inure to the benefit of and be specifically enforceable by or against the parties hereto, their respective successors, grantees or assigns. Smuggler Park Development Agreement Page 8 IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the day and year first above written. CITY: City of Aspen, Colorado, a municipal corporation Attest: By: Steven Skadron, Mayor Linda Manning, City Clerk APPROVED AS TO FORM: James R. True, City Attorney SPHOA: Smuggler Park Home Owners Association By: Troy Miller, President [Remainder of this page intentionally left blank; notary blocks on following page] Smuggler Park Development Agreement Page 9 I%W )Woof STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of , 2017, by Steven Skadron as Mayor and Linda Manning as City Clerk of the City of Aspen, Colorado, a municipal corporation. Witness my hand and official seal. My commission expires: STATE OF COLORADO ) ss. COUNTY OF ) Notary Public The foregoing instrument was acknowledged before me this day of , 2017, by Troy Miller as President of the Smuggler Park Home Owners Association. Witness my hand and official seal. My commission expires: Notary Public Smuggler Park Development Agreement Page 10 1%. NW01, RECEIVED CITY OF ASPEN PRE -APPLICATION CONFERENCE SUMMARY JAN 6 2017 PLANNER: Justin Barker, 429.2797 C MWI, MN NT PROJECT: Smuggler Park REPRESENTATIVE: Chris Bendon, 925.2855 REQUEST: Approval Documents DESCRIPTION: The Smuggler Park PD was first approved in 1982 as the Smuggler Mobile Home Park SPA, which also included the Smuggler Run Subdivision. A Planned Development Amendment was approved by City Council on July 11, 2016 via Ordinance 12, Series of 2016. The Planned Development Agreement is required to be updated and recorded to reflect the changes. The applicant currently has a deadline of January 7, 2017 to submit the documents to Community Development (180 days from Council approval). If additional time is needed, the applicant may request an extension. All documents are reviewed administratively. No public hearings are required. In addition to Planning staff review, the City Attorney's Office will review the recordation documents. Relevant Land Use Code Section(s): 26.304 Common Development Review Procedures 26.445 Planned Development 26.490 Approval Documents http://www.aspenpitkin.com/depts/38/citycode.cfm Review by: • Staff for complete application and approval of documents Planning Fees: Planning Deposit — $975 for 3 hours (additional time is billed at $325 per hour) Referral Fees: City Attorney's Office — no deposit, but time is billed at $325 per hour Total Deposit: $975 Total Deposit: $975 (additional hours over deposit amount are billed at a rate of $325/hour) To apply, submit one (1) copy of the following information: ❑ Completed Land Use Application and signed fee agreement. ❑ Pre -application Conference Summary (this document). ❑ Street address and legal description of the parcel on which development is proposed to occur, consisting of a current (no older than 6 months) certificate from a title insurance company, or attorney licensed to practice in the State of Colorado, listing the names of all owners of the property, and all mortgages, judgments, liens, ASLU Approval Documents Smuggler Park 1 VOW law easements, contracts and agreements affecting the parcel, and demonstrating the owner's right to apply for the Development Application. ❑ Applicant's name, address and telephone number in a letter signed by the applicant which states the name, address and telephone number of the representative authorized to act on behalf of the applicant. ❑ HOA Compliance form (Attached). If the copy is deemed complete by staff, the following items will then need to be submitted: ❑ Total deposit for review of the application. ❑ 1 additional hard copy of the complete application packet. ❑ Electronic copy of all document. Word format is preferred for all text documents. Disclaimer: The foregoing summary is advisory in nature only and is not binding on the City. The summary is based on current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The summary does not create a legal or vested right. 2 AMENDED/RESTATED DEVELOPMENT AGREEMENT FOR SMUGGLER PARK SUBDIVISION RECEIVED JAN 6 2017 CITY OF ASPEN QOMIIIIfiY OEVEI.OPMENf THIS DEVELOPMENT AGREEMENT (hereinafter the "Development Agreement") is made and entered into this day of , 2017, by and between THE CITY OF ASPEN, COLORADO, a municipal corporation (hereinafter referred to as "City"), and THE SMUGGLER PARK HOMEOWNERS ASSOCIATION (herein after referred to as "SPHOA"). WITNESSETH: WHEREAS, SPHOA submitted to the City for approval an application to amend the Planned Development and Subdivision land use allowances and limitations applicable to all Residential Lot within the Smuggler Park Subdivision. The application gained approval for the following adjustments: • An amendment to the applicability and specific requirements of the City's Residential Design Standards for development within the subdivision. • A change to the parking requirement for development within the subdivision. • An ability to combine lightwells and stairwells with adjacent excavated areas. • Clarity on the technique for measuring height of structures within the subdivision. • Clarity on the ability to develop Accessory Dwelling Units within the subdivision. In addition, SPHOA is seeking certain existing requirements from past approvals to be clarified and restated, including: • The dimensional allowance and limitations for development within the subdivision. • Use and occupancy limitations for the residences within the subdivision. • Assessment of water tap fees Collectively, the foregoing is referred to as the "Amendment" ; and, WHEREAS, the Final Subdivision Plat of Smuggler Mobile Home Park and Grant of Easements was approved and accepted by the City of Aspen City Council on April 7, 1982 and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 13, Page 25 & 26; and, WHEREAS, the First Amended Plat of Smuggler Mobile Home Park Subdivision approved and accepted by the City of Aspen City Council on May 6, 1987 and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 19, Page 61; and, WHEREAS, the second Amended Plat of Smuggler Mobile Home Park Subdivision approved and accepted by the City of Aspen City Council on ?? and recorded Smuggler Park Development Agreement Page 1 Aftr . go, with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 30, Page 20; and, WHEREAS, the third Amended Plat of Smuggler Mobile Home Park Subdivision approved and accepted by the City of Aspen and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 54, Page 71, as reception number 448308; and, WHEREAS, on July 11, 2016, the City of Aspen City Council reviewed and approved Ordinance 12, Series 2016, granting Minor Planned Development Amendment approval; and, WHEREAS, the SPHOA submitted to the City for execution and recordation, the this Development Agreement ("Agreement") in compliance with the form, content, and timing requirements of Chapter 26.490; and, WHEREAS, City has fully considered the Agreement, the other terms and conditions included in Ordinance 12 and the effects of the proposed Amendment on adjoining and neighboring properties and property owners; and, WHEREAS, City has imposed certain conditions and requirements in connection with its approval of the Amendment and the execution and recordation of the Agreement, such matters being necessary to protect, promote and enhance the public welfare; and WHEREAS, SPHOA is willing to acknowledge, accept, abide by and faithfully perform the conditions and requirements imposed by the City of Aspen in approving the Amendment; and, WHEREAS, the Agreement meets the requirements of Aspen Municipal Code Chapter 26.490 ensuring each item and condition of approval is documented to the satisfaction of the Community Development Director, the City Attorney, and the Mayor. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, the approval, execution and acceptance of the Agreement for recordation by City, and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE I. PURPOSE AND EFFECT OF DEVELOPMENT AGREEMENT A. Purpose. The purpose of this Development Agreement is to set forth the complete and comprehensive understanding and agreement of the parties with the respect to the allowances and limitations of development within the Smuggler Park Subdivision and to enumerate all terms and conditions under which such development of Residential Lots within the subdivision may occur. Smuggler Park Development Agreement Page 2 VOW *480, B. Effect. It is the intent of the parties that, upon recording, this Development Agreement shall effectively supersede and replace in their entirety the following documents, as they apply to the Smuggler Park Subdivision, and all previously recorded and unrecorded land use approvals applicable to the entire Smuggler Park Subdivision. In the event of any inconsistencies between the provisions of Ordinance 12 and this Development Agreement, the provisions of Ordinance 12 shall control. ARTICLE II ZONING, REGULATORY APPROVALS, DEVELOPMENT AND USE REQUIREMENTS AND RESTRICTIONS A. 87 Lot Subdivision The Smuggler Park Subdivision is comprised of 86 Residential Lots and One Non - Residential Lot housing the common building with a meeting room and trash/recycling. The subdivision also includes roadways, common areas, common parking, and common trash/recycling facilities. B. Each Residential Lot is Allowed One Single -Family Home Each Residential Lot within the may be developed with one Single -Family residence, as such term is defined by the City of Aspen. Each residence may be developed by use of the full range of construction techniques allowed for development within the City of Aspen, including but not limited to, modular construction, manufactured home, mobile home, "stick -built," and other construction techniques as permitted by the City of Aspen from time to time. C. Allowable Floor Area Each Residential Lot may have up to a maximum of 2,000 square feet of floor area. The following method shall be used to measure allowable floor area: D. Setbacks Smuggler Park Development Agreement Page 3 `.r *40001 The minimum setbacks are as follows: Front Minimum of 0 `feet. - - ----- _.... -_ __.._.. - -- — ------- Sides Minimum of 10 feet on one side and a minimum of 0 feet on the other side. Placement of development on each Lot is subject to approval by the Smuggler Park Architectural Control Committee. Rear Minimum of 5 feet. E. Allowable Height and Measurement Method Each Lot is allowed a height of 15 feet. Height shall be measured according to the City of Aspen Land Use Code, as may be amended from time to time. Height shall be measured from the midpoint of the lot's average slope. In cases where the lot's slope has been modified, the average elevation of the lot's corners shall be used to determine the lot's average slope. The exceptions and exemptions to height limits, as prescribed in the City of Aspen land Use Code, as amended from time to time, shall apply. F. Accessory Dwelling Units Allowed Each Residential Lot may develop one Accessory Dwelling Unit in conformance with the City of Aspen Land Use Code, as may be amended from time to time, including procedures to apply for and gain approval for variations to the City's requirements. G. Minimum Required ParkinE Each Lot shall be required to supply the minimum number of off-street parking spaces required by the City of Aspen Land Use Code, as may be amended from time to time. The required spaces may be within the Lot or within the area of the roadway easement adjacent to the Lot between the curb line and the property. This common area was developed to be used as off-street parking by each homeowner. The required parking may be provided through a combination of these methods. H. Residential Design Standards and Variations: Each Residential Lot shall be required to comply with the City of Aspen Residential Design Standards, as may be amended from time to time, with the following approved variations: Porch Size. The required porch size is reduced to a minimum of 25 square feet with a minimum depth of 4 feet. Porch Location. The required porch may be development on the front of the house (facing the street) or along the side of the house (facing the side yard). • Principal Window. The reduced to 2 feet by 4 feet. minimum required principal window size is Smuggler Park Development Agreement Page 4 IM cm • Garage Width. Garages may be up to 50% of the total width of the front fagade of the house. • Garage Location. Garages are not required to be set -back from the front fagade of the house. The approved variations listed above do not require additional City review. Each Lot remains eligible to apply for and gain additional variations to the City of Aspen Residential Design Standards as may be allowed in the City of Aspen Land Use Code. I. Architectural Control Committee Review The Smuggler Park HOA utilizes an Architectural Control Committee to review placement and design of development on each Lot. The SPHOA maintains its own standards and procedures for this review and is separate and apart from the City of Aspen. I Combining Certain Features in the Side Yard Setback. Certain features can be combined in the side yard setback. This is limited to light wells and stairwells as required by adopted Building or Fire Codes and landscape walls, berms, retaining walls and similar structures which do not exceed thirty (30) inches above or below grade, pursuant to the allowances in the City of Aspen Land Use Code, as may be amended. K. Sale and Occupancy Limitations. The Residential Lots are subject to sale and occupancy limitations as follows: Primary Residence. Any individual or individuals who own a Lot must personally occupy the Lot as their primary residence during the period of ownership. Any purchaser of a Lot must agree, as a condition of sale, that they will in fact occupy the Lot as their primary residence. Qualified Purchasers. The following restrictions shall apply in determining whether a purchaser is qualified to purchase a Lot: a. The Lot shall be offered for sale to persons employed within the City of Aspen or Pitkin County jurisdictions, or other individuals deemed qualified by the Aspen/Pitkin County Housing Authority, including but not limited to, qualified retirees and pensioners. b. Should there be no qualified purchasers as stated in a. above after a period of four (4) months from the date the Lot is first listed for sale; the Property may then be offered for sale to any resident of Pitkin County. The purchaser or purchasers must agree as a condition of sale and, in fact, must personally occupy such Property as a primary place of residence during the period of ownership, and their occupancy must be approved by Smuggler Homeowners' Association. Smuggler Park Development Agreement Page 5 CM c. Any purchaser of a Lot must agree, as a condition of sale, that they will in fact occupy the Lot as their primary residence. ARTICLE III NONCOMPLIANCE AND REQUEST FOR AMENDMENTS OR EXTENSIONS 1. In the event that the City has reason to believe that the SPHOA is not acting in substantial compliance with the terms of this Agreement, the City shall send the SPHOA a notice of non-compliance, specifying the alleged noncompliance. After such notice is given, the SPHOA and the City shall make good faith efforts to resolve the alleged lack of compliance. If the SPHOA and the City are not able to reach a mutually acceptable solution within thirty (30) days of the City's notice of non-compliance, the matter shall be submitted to the City Hearing Officer for a determination. The SPHOA shall have the right to file a petition appealing the City Hearing Officer's determination to City Council, which review by City Council shall appeal in accordance to the Aspen Municipal Code, as amended. 2. Upon the receipt of such petition, the City Council shall promptly schedule a hearing to consider the matters set forth in the Hearing Officer's determination of noncompliance and in the petition. The hearing shall be convened and conducted pursuant to the procedures normally established by the City Council for other appeals. If the City Council determines by that the record supports the finding that a noncompliance exists which has not been remedied, it may issue such orders as may be appropriate, including an order to remedy the non-compliance within such reasonable time as the City Council may determine, but not less than thirty (30) days. 3. Notwithstanding the foregoing, no order terminating any approval previously granted by the City Council, Planning and Zoning Commission or Historic Preservation Commission shall be issued without a finding of the City Council that the record on appeal warrants such action and affording the owner a reasonable time to remedy such noncompliance. A final determination of noncompliance which has not been remedied or for which no variance has been granted may, at the option of City Council, and upon written notice to the owner, terminate any of such approvals which are reasonably related to the requirement(s) with which the owner has failed to comply. Alternatively, the City Council may grant such variances, extensions of time or amendments to this Agreement as it may deem appropriate under the circumstances. 4. Within twenty (20) days of the receipt of an order from the City Council determining non-compliance, the SPHOA 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 noncompliance still exists, or b. Whether a variance, extension of time or amendment to this Agreement should be granted with respect to any such noncompliance that is determined to exist. Smuggler Park Development Agreement Page 6 NWW 5. In addition to the foregoing, SPHOA may, on its own initiative, at any time, petition the City Council for a variance, an amendment to this Agreement. The City Council may grant such variances, amendments to this Agreement, or extensions of time 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 the owner demonstrates by a preponderance of the evidence that the reasons for the delay(s) which necessitate said extension(s) are beyond the control of the owner, despite good faith efforts on its part to perform in a timely manner. ARTICLE IV GENERAL PROVISIONS 1. The provisions hereof shall be binding upon and inure to the benefit of SPHOA and the City and their respective successors and assigns. 2. This PD Development Agreement shall be subject to and construed in accordance with the laws of the State of Colorado. 3. If any of the provisions of this PD Development 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 PD Development Agreement, and the application of any such provision, paragraph, sentence, clause, phrase, word, or section in any other circumstances shall not be affected thereby. 4. In the event of any conflict between Ordinance 12 and this Agreement, the terms and provisions of Ordinance 12, as may be duly modified, shall govern and control. 5. This PD Development Agreement contains the entire understanding between the parties hereto with respect to the transactions contemplated herein, and except as otherwise specifically provided herein, may be altered or amended from time to time only by written instruments executed by all parties hereto that are affected by the proposed amendment. 6. Numerical and title headings contained in this PD Development 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. 7. Notices to be given to the parties to this PD Development Agreement shall be considered to be given if hand -delivered or if deposited in the United States Mail to the parties by registered or certified mail at the addresses indicated below, or such other Smuggler Park Development Agreement Page 7 V40r ti.. addresses as may be substituted upon written notice by the parties or their successors or assigns: City of Aspen City Manager and City Attorney 130 South Galena Street Aspen, CO 81611 Smuggler Park Home Owners Association 301 Oak Lane Aspen, CO 81611 With copies to: 8. This PD Development Agreement may be executed in counterparts, in which case all such counterparts together shall constitute one and the same instrument, which is binding on all of the parties thereto, notwithstanding that all of the parties are not signatory to the original or the same counterpart. Facsimile or electronic signatures shall be treated as original signatures hereon. 9. 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 thereof or interests therein, their respective successors, grantees or assigns, and further shall inure to the benefit of and be specifically enforceable by or against the parties hereto, their respective successors, grantees or assigns. Smuggler Park Development Agreement Page 8 f� cm IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the day and year first above written. CITY: City of Aspen, Colorado, a municipal corporation Attest: By: Steven Skadron, Mayor Linda Manning, City Clerk 9 U I'MIN a OXNAIRM Kl1j•:u James R. True, City Attorney SPHOA: Smuggler Park Home Owners Association By: Troy Miller, President [Remainder of this page intentionally left blank; notary blocks on following page] Smuggler Park Development Agreement Page 9 `4.r STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of , 2017, by Steven Skadron as Mayor and Linda Manning as City Clerk of the City of Aspen, Colorado, a municipal corporation. Witness my hand and official seal. My commission expires: _ STATE OF COLORADO ) ss. COUNTY OF ) Notary Public The foregoing instrument was acknowledged before me this day of , 2017, by Troy Miller as President of the Smuggler Park Home Owners Association. Witness my hand and official seal. My commission expires: EXHIBIT LIST Notary Public Smuggler Park Development Agreement Page 10 f in SMUGGLER PARK SUBDIVISION RESALE AGREEMENT Exhibit A THIS AGREEMENT made and entered into this day of 2017 by and between (hereinafter referred to as "Owner"), and the County of Pitkin, State of Colorado and through its designee, ASPEN/PITKIN COUNTY HOUSING AUTHORITY (hereinafter called "Housing Authority") a duly constituted multi jurisdictional housing authority established pursuant to the FIFTHAMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT by and between the City of Aspen, Colorado (the "City") and Pitkin County, Colorado (the "County"), dated December 18, 2013 and recorded at Reception No. 607311 on January 15, 2014 of the records of the Pitkin County Clerk and Recorders Office. WITNESSETH WHEREAS, the Owner has purchased that real property located at Aspen, Colorado (hereinafter the "Property"), more specifically described as follows: Lot , First Amended Plat, SMUGGLER PARK SUBDIVISION, according to the Plat thereof recorded in the office of the County Clerk and Recorder of Pitkin County, Colorado on May 14, 1987 in Plat Book 19 at Page 61 as Reception No. 288794; Plat recorded January 7, 1993 in Plat Book 30 at Page 20 as Reception No. 352684; the Third Amended Plat, Smuggler Park Subdivision, according to the Plat thereof recorded in the office of the County Clerk and Recorder of Pitkin County, Colorado on October 26, 2000 in Plat Book 54, Page 71 and on January 2, 2001 in Plat Book 55, Page 54 as Reception No. 450166, County of Pitkin, State of Colorado. WHEREAS, the Owner acknowledges that the Property is subject to certain resale restrictions as contained in the Amendment to Precise Plan and Subdivision Agreement for Smuggler Mobile Home Park recorded in Book 535 at Page 975 of the records of Pitkin County, Colorado, which restrictions are for addressing the housing needs of the area; WHEREAS, this document supersedes any previous deed restriction agreement for occupancy and resale associated with this unit; and WHEREAS, the parties hereto desire to ensure that, upon resale, the Property is again made available to satisfy the need for employee housing in the City of Aspen and in Pitkin County. NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10) and other good and valuable consideration, the parties agree as follows: Sale of Property. At any time the Owner intends to sell the Property, the Owner shall notify the Housing Authority in writing of his/her intention to do so. The Housing Authority shall qualify prospective purchasers per paragraph 2 of this agreement. The Seller (Owner) is not required to sell the property through the Housing Authority. If Seller does not sell the Property through the Housing Authority, Seller shall pay a fee of one -quarter percent (1/4%) of the total sales price at the time of closing to the Housing Authority. If the Seller lists the Property with the Housing Authority, one percent (1%) of the listing price shall be paid to the Housing Authority at the time of the listing with an additional amount to be paid by Seller at the time of closing, for a total equal to two percent (2%) of the total sale price Smuggler Park Subdivision Resale Agreement Owner's Initials Page 1 2. Qualified Purchasers. The following restrictions shall apply in determining whether a purchaser is qualified to purchase said Property: a. The Property shall be offered for sale to persons employed within the City of Aspen or Pitkin County, or other individuals deemed qualified by the Aspen/Pitkin County Housing Authority, including but not limited to, qualified retirees and pensioners. Any individual or individuals who purchase said Property must agree, as a condition of sale and, in fact, must personally occupy the Property as a primary residence during the period of ownership. b. Should there be no qualified purchasers as stated in a. above after a period of four (4) months from the date the Property is first listed for sale, the Property may then be offered for sale to any resident of Pitkin County. The purchaser or purchasers must agree as a condition of sale and, in fact, must personally occupy such Property as a primary place of residence during the period of ownership, and their occupancy must be approved by Smuggler Homeowners' Association. Exempt Transfers. The following transfers of any interest in the Property, unless adopted to avoid the provisions of this Agreement, shall be exempt from its provisions: a. a transfer by operation of law of a deceased person's interest to the surviving joint tenant; b. a transfer of an interest by will or inheritance; C. a transfer by genuine gift without any consideration thereof, d. a transfer of an interest to a trustee for the benefit of the Owner or the Owner's spouse or issue; e. a transfer by operation of law of an interest of an Owner to any other co-owner (or co -owners) where such co-owner (or co -owners) hold title on the date of such transfer as tenant -in -common or as a joint tenant; f, a transfer of an interest by Treasurer's deed pursuant to a sale for delinquent taxes; or by a Sheriffs or Public or Private Trustee's deed pursuant to a judgment execution or foreclosure sale, but only for debts constituting a purchase money mortgage. Anything above to the contrary notwithstanding, if the Property shall be transferred in any manner described in paragraphs a through f above, the transferee, his grantees or successors in interest, shall be bound by the terms and conditions of this Agreement in the same manner and degree as if no exempt transfer had occurred. 4. Burden of Agreement. If any Property burdened hereunder be sold and conveyed without compliance herewith, such sale shall be wholly null and void and shall confer no title whatsoever upon the intended purchaser. Every conveyance of the Property shall, for all purposes, be deemed to include and incorporate by reference in such instrument of conveyance, even without reference hereto, the covenants contained herein. 5. Change in Residency. The Owner agrees that, in the event he ceases to utilize the Property as his sole and exclusive place of residence when in Aspen, Colorado he will offer the same for sale pursuant to the provisions of this Agreement. The Owner shall be deemed to have ceased to utilize the Property as his sole and exclusive place of residence when in Aspen, Colorado, by failing to personally reside in the Pronertv for more than six (6) months ner year without such iustification as is acceptable to the Smuggler Park Subdivision Resale Agreement Owner's Initials Page 2 Board of Directors of the Smuggler Homeowners' Association. It is recognized that no Property may be leased for any period without the written permission of the Smuggler Homeowners' Association. 6. Wrongful Interest. In the event any person with an ownership interest acquires such interest without intending to use the same as his sole and exclusive place of residence, then all other persons with an ownership interest shall simultaneously offer the same for sale pursuant to the provisions of this Agreement, and the Property shall become available for purchase pursuant to the provisions of Paragraphs 1 through 4 above. Notices. Any notice that is required to be given hereunder shall be given by mailing the same, certified mail, to any address provided herein or given as the current mailing address of the party. 8. Covenants to Run with Land. The provisions of this Agreement shall be covenants running with the land, be binding upon the Owner and the City, his or its heirs, successors and assigns (and enforceable by any of them) and shall run for the period of the life of the survivor of the members of the Aspen City Council existing on May 14, 1987, plus twenty-one (21) years, or through May 13, 2037, whichever period is less. 9. Definition of Owner and Housing Authority. The term "Owner" as used herein shall refer to all persons (without regard to number or gender) or entities having an ownership interest in the condominium Property that is the subject of this Agreement. The term "Housing Authority" shall mean and include the City Council of the City of Aspen and/or such person or entity now or hereafter designated by the City Council to administer the terms of this Agreement on behalf of the City. 10. Obligations at Closing. At the time of any sale of the Property pursuant to the terms of this Agreement, the Owner shall provide (at his cost) title insurance (or other evidence of title); and any taxes, assessments, utility bills, etc., shall be pro rated to the date of closing. Each party to the transaction shall assume his customary closing costs. IL . Remedies Upon Breach. There is hereby reserved to the parry's hereto all remedies provided by law for breach of this Agreement or any of its terms and the prevailing party in any litigation shall be entitled to an award of its reasonable attorney's fees. 12. Acknowledgment of Understanding. The Owner acknowledges that he has read and fully understands and accepts the terms and conditions of this Agreement limiting the resale and rental of the Property; and further acknowledges that he is relying upon no oral representations qualifying or limiting the terms hereof. Smuggler Park Subdivision Resale Agreement Owner's Initials Page 3 0 IN WITNESS WHEREOF, the parties hereto have executed this instrument on the date and year above first written. OWNER: NAMES STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing document was acknowledged and sworn to before me this day of 2017 by My commission expires: : Witness my hand and official seal. Notary Public ACCEPTANCE BY THE ASPEN/PITKIN COUNTY HOUSING AUTHORITY Mike Kosdrosky, Executive Director 210 W. Hyman, Suite 202, Aspen, Colorado 81611 STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing document was acknowledged and sworn to before me this _ day of 2017 by Mike Kosdrosky, Executive Director, Aspen/Pitkin County Housing Authority. Witness my hand and official seal. My Commission Expires: Notary Public Smuggler Park Subdivision Resale Agreement Owner's Initials Page 4 AMENDED/RESTATED DEVELOPMENT AGREEMENT FOR SMUGGLER PARK SUBDIVISION THIS DEVELOPMENT AGREEMENT (hereinafter the "Development Agreement") is made and entered into this day of , 2017, by and between THE CITY OF ASPEN, COLORADO, a municipal corporation (hereinafter referred to as "City"), and THE SMUGGLER PARK HOMEOWNERS ASSOCIATION (herein after referred to as "SPHOA"). WITNESSETH: WHEREAS, SPHOA submitted to the City for approval an application to amend the Planned Development and Subdivision land use allowances and limitations applicable to all Residential Lot within the Smuggler Park Subdivision. The application gained approval for the following adjustments: • An amendment to the applicability and specific requirements of the City's Residential Design Standards for development within the subdivision. • A change to the parking requirement for development within the subdivision. • An ability to combine lightwells and stairwells with adjacent excavated areas. • Clarity on the technique for measuring height of structures within the subdivision. • Clarity on the ability to develop Accessory Dwelling Units within the subdivision. In addition, SPHOA is seeking certain existing requirements from past approvals to be clarified and restated, including: • The dimensional allowance and limitations for development within the subdivision. • Use and occupancy limitations for the residences within the subdivision. • Assessment of water tap fees Collectively, the foregoing is referred to as the "Amendment" ; and, WHEREAS, the Final Subdivision Plat of Smuggler Mobile Home Park and Grant of Easements was approved and accepted by the City of Aspen City Council on April 7, 1982 and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 13, Page 25 & 26; and, WHEREAS, the First Amended Plat of Smuggler Mobile Home Park Subdivision approved and accepted by the City of Aspen City Council on May 6, 1987 and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 19, Page 61; and, WHEREAS, the second Amended Plat of Smuggler Mobile Home Park Subdivision approved and accepted by the City of Aspen City Council on ?? and recorded Smuggler Park Development Agreement Page 1 with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 30, Page 20; and, WHEREAS, the third Amended Plat of Smuggler Mobile Home Park Subdivision approved and accepted by the City of Aspen and recorded with the Office of the Clerk and Recorder of Pitkin County, Colorado, at Plat Book 54, Page 71, as reception number 448308; and, WHEREAS, on July 11, 2016, the City of Aspen City Council reviewed and approved Ordinance 12, Series 2016, granting Minor Planned Development Amendment approval; and, WHEREAS, the SPHOA submitted to the City for execution and recordation, the this Development Agreement ("Agreement") in compliance with the form, content, and timing requirements of Chapter 26.490; and, WHEREAS, City has fully considered the Agreement, the other terms and conditions included in Ordinance 12 and the effects of the proposed Amendment on adjoining and neighboring properties and property owners; and, WHEREAS, City has imposed certain conditions and requirements in connection with its approval of the Amendment and the execution and recordation of the Agreement, such matters being necessary to protect, promote and enhance the public welfare; and WHEREAS, SPHOA is willing to acknowledge, accept, abide by and faithfully perform the conditions and requirements imposed by the City of Aspen in approving the Amendment; and, WHEREAS, the Agreement meets the requirements of Aspen Municipal Code Chapter 26.490 ensuring each item and condition of approval is documented to the satisfaction of the Community Development Director, the City Attorney, and the Mayor. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, the approval, execution and acceptance of the Agreement for recordation by City, and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE I. PURPOSE AND EFFECT OF DEVELOPMENT AGREEMENT A. Purpose. The purpose of this Development Agreement is to set forth the complete and comprehensive understanding and agreement of the parties with the respect to the allowances and limitations of development within the Smuggler Park Subdivision and to enumerate all terms and conditions under which such development of Residential Lots within the subdivision may occur. Smuggler Park Development Agreement Page 2 B. Effect. It is the intent of the parties that, upon recording, this Development Agreement shall effectively supersede and replace in their entirety the following documents, as they apply to the Smuggler Park Subdivision, and all previously recorded and unrecorded land use approvals applicable to the entire Smuggler Park Subdivision. In the event of any inconsistencies between the provisions of Ordinance 12 and this Development Agreement, the provisions of Ordinance 12 shall control. ARTICLE II ZONING, REGULATORY APPROVALS, DEVELOPMENT AND USE REQUIREMENTS AND RESTRICTIONS A. 87 Lot Subdivision The Smuggler Park Subdivision is comprised of 86 Residential Lots and One Non - Residential Lot housing the common building with a meeting room and trash/recycling. The subdivision also includes roadways, common areas, common parking, and common trash/recycling facilities. B. Each Residential Lot is Allowed One Single -Family Home Each Residential Lot within the may be developed with one Single -Family residence, as such term is defined by the City of Aspen. Each residence may be developed by use of the full range of construction techniques allowed for development within the City of Aspen, including but not limited to, modular construction, manufactured home, mobile home, "stick -built," and other construction techniques as permitted by the City of Aspen from time to time. C. Allowable Floor Area Each Residential Lot may have up to a maximum of 2,000 square feet of floor area. The following method shall be used to measure allowable floor area: Above Grade Space Area counts 100% towards maximum allowable, with no exemptions Below Grade Space Area counts 50% towards maximum allowable, with no exemptions Garage and Shed First 500 square feet is exempt. Area above Space 500 s.f. counts 100% towards maximum allowable. with no exemptions D. Setbacks Smuggler Park Development Agreement Page 3 The minimum setbacks are as follows: Front Minimum of 0 feet. Sides Minimum of 10 feet on one side and a minimum of 0 feet on the other side. Placement of development on each Lot is subject to approval by the Smuggler Park Architectural Control Committee. Rear Minimum of 5 feet. E. Allowable Height and Measurement Method Each Lot is allowed a height of 15 feet. Height shall be measured according to the City of Aspen Land Use Code, as may be amended from time to time. Height shall be measured from the midpoint of the lot's average slope. In cases where the lot's slope has been modified, the average elevation of the lot's corners shall be used to determine the lot's average slope. The exceptions and exemptions to height limits, as prescribed in the City of Aspen land Use Code, as amended from time to time, shall apply. F. Accessory Dwelling Units Allowed Each Residential Lot may develop one Accessory Dwelling Unit in conformance with the City of Aspen Land Use Code, as may be amended from time to time, including procedures to apply for and gain approval for variations to the City's requirements. G. Minimum Required Parkin Each Lot shall be required to supply the minimum number of off-street parking spaces required by the City of Aspen Land Use Code, as may be amended from time to time. The required spaces may be within the Lot or within the area of the roadway easement adjacent to the Lot between the curb line and the property. This common area was developed to be used as off-street parking by each homeowner. The required parking may be provided through a combination of these methods. H. Residential Design Standards and Variations: Each Residential Lot shall be required to comply with the City of Aspen Residential Design Standards, as may be amended from time to time, with the following approved variations: Porch Size. The required porch size is reduced to a minimum of 25 square feet with a minimum depth of 4 feet. Porch Location. The required porch may be development on the front of the house (facing the street) or along the side of the house (facing the side yard). Principal Window. The reduced to 2 feet by 4 feet. minimum required principal window size is Smuggler Park Development Agreement Page 4 Garage Width. Garages may be up to 50% of the total width of the front facade of the house. Clarify that total width of house plus garage. Garage Location. Garages are not required to be set -back from the front fagade of the house. The approved variations listed above do not require additional City review. Each Lot remains eligible to apply for and gain additional variations to the City of Aspen Residential Design Standards as may be allowed in the City of Aspen Land Use Code. I. Architectural Control Committee Review The Smuggler Park HOA utilizes an Architectural Control Committee to review placement and design of development on each Lot. The SPHOA maintains its own standards and procedures for this review and is separate and apart from the City of Aspen. I Combining Certain Features in the Side Yard Setback. Certain features can be combined in the side yard setback. This is limited to light wells and stairwells as required by adopted Building or Fire Codes and landscape walls, berms, retaining walls and similar structures which do not exceed thirty (30) inches above or below grade, pursuant to the allowances in the City of Aspen Land Use Code, as may be amended. K. Sale and Occupancy Limitations. The Residential Lots are subject to sale and occupancy limitations as follows: Primary Residence. Any individual or individuals who own a Lot must personally occupy the Lot as their primary residence during the period of ownership. Any purchaser of a Lot must agree, as a condition of sale, that they will in fact occupy the Lot as their primary residence. Qualified Purchasers. The following restrictions shall apply in determining whether a purchaser is qualified to purchase a Lot: a. The Lot shall be offered for sale to persons employed within the City of Aspen or Pitkin County jurisdictions, or other individuals deemed qualified by the Aspen/Pitkin County Housing Authority, including but not limited to, qualified retirees and pensioners. b. Should there be no qualified purchasers as stated in a. above after a period of four (4) months from the date the Lot is first listed for sale; the Property may then be offered for sale to any resident of Pitkin County. The purchaser or purchasers must agree as a condition of sale and, in fact, must personally occupy such Property as a primary place of residence during the period of ownership, and their occupancy must be approved by Smuggler Homeowners' Association. Smuggler Park Development Agreement Page 5 c. Any purchaser of a Lot must agree, as a condition of sale, that they will in fact occupy the Lot as their primary residence. ARTICLE III NONCOMPLIANCE AND REQUEST FOR AMENDMENTS OR EXTENSIONS In the event that the City has reason to believe that the SPHOA is not acting in substantial compliance with the terms of this Agreement, the City shall send the SPHOA a notice of non-compliance, specifying the alleged noncompliance. After such notice is given, the SPHOA and the City shall make good faith efforts to resolve the alleged lack of compliance. If the SPHOA and the City are not able to reach a mutually acceptable solution within thirty (30) days of the City's notice of non-compliance, the matter shall be submitted to the City Hearing Officer for a determination. The SPHOA shall have the right to file a petition appealing the City Hearing Officer's determination to City Council, which review by City Council shall appeal in accordance to the Aspen Municipal Code, as amended. 2. Upon the receipt of such petition, the City Council shall promptly schedule a hearing to consider the matters set forth in the Hearing Officer's determination of noncompliance and in the petition. The hearing shall be convened and conducted pursuant to the procedures normally established by the City Council for other appeals. If the City Council determines by that the record supports the finding that a noncompliance exists which has not been remedied, it may issue such orders as may be appropriate, including an order to remedy the non-compliance within such reasonable time as the City Council may determine, but not less than thirty (30) days. 3. Notwithstanding the foregoing, no order terminating any approval previously granted by the City Council, Planning and Zoning Commission or Historic Preservation Commission shall be issued without a finding of the City Council that the record on appeal warrants such action and affording the owner a reasonable time to remedy such noncompliance. A final determination of noncompliance which has not been remedied or for which no variance has been granted may, at the option of City Council, and upon written notice to the owner, terminate any of such approvals which are reasonably related to the requirement(s) with which the owner has failed to comply. Alternatively, the City Council may grant such variances, extensions of time or amendments to this Agreement as it may deem appropriate under the circumstances. 4. Within twenty (20) days of the receipt of an order from the City Council determining non-compliance, the SPHOA 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 noncompliance still exists, or b. Whether a variance, extension of time or amendment to this Agreement should be granted with respect to any such noncompliance that is determined to exist. Smuggler Park Development Agreement Page 6 5. In addition to the foregoing, SPHOA may, on its own initiative, at any time, petition the City Council for a variance, an amendment to this Agreement. The City Council may grant such variances, amendments to this Agreement, or extensions of time 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 the owner demonstrates by a preponderance of the evidence that the reasons for the delay(s) which necessitate said extension(s) are beyond the control of the owner, despite good faith efforts on its part to perform in a timely manner. ARTICLE IV GENERAL PROVISIONS 1. The provisions hereof shall be binding upon and inure to the benefit of SPHOA and the City and their respective successors and assigns. 2. This PD Development Agreement shall be subject to and construed in accordance with the laws of the State of Colorado. 3. If any of the provisions of this PD Development 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 PD Development Agreement, and the application of any such provision, paragraph, sentence, clause, phrase, word, or section in any other circumstances shall not be affected thereby. 4. In the event of any conflict between Ordinance 12 and this Agreement, the terms and provisions of Ordinance 12, as may be duly modified, shall govern and control. 5. This PD Development Agreement contains the entire understanding between the parties hereto with respect to the transactions contemplated herein, and except as otherwise specifically provided herein, may be altered or amended from time to time only by written instruments executed by all parties hereto that are affected by the proposed amendment. 6. Numerical and title headings contained in this PD Development 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. 7. Notices to be given to the parties to this PD Development Agreement shall be considered to be given if hand -delivered or if deposited in the United States Mail to the parties by registered or certified mail at the addresses indicated below, or such other Smuggler Park Development Agreement Page 7 addresses as may be substituted upon written notice by the parties or their successors or assigns: City of Aspen City Manager and City Attorney 130 South Galena Street Aspen, CO 81611 Smuggler Park Home Owners Association 301 Oak Lane Aspen, CO 81611 With copies to: Scott Harper Scott Harper, P.C. 206 Cody Lane, Suite C Basalt, CO 81621 8. This PD Development Agreement may be executed in counterparts, in which case all such counterparts together shall constitute one and the same instrument, which is binding on all of the parties thereto, notwithstanding that all of the parties are not signatory to the original or the same counterpart. Facsimile or electronic signatures shall be treated as original signatures hereon. 9. 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 thereof or interests therein, their respective successors, grantees or assigns, and further shall inure to the benefit of and be specifically enforceable by or against the parties hereto, their respective successors, grantees or assigns. Smuggler Park Development Agreement Page 8 IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the day and year first above written. CITY: City of Aspen, Colorado, a municipal corporation Attest: By: Steven Skadron, Mayor Linda Manning, City Clerk APPROVED AS TO FORM: James R. True, City Attorney SPHOA: Smuggler Park Home Owners Association By: Troy Miller, President [Remainder of this page intentionally left blank; notary blocks on following page] Smuggler Park Development Agreement Page 9 STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of , 2017, by Steven Skadron as Mayor and Linda Manning as City Clerk of the City of Aspen, Colorado, a municipal corporation. Witness my hand and official seal. My commission expires: _ STATE OF COLORADO ) ss. COUNTY OF ) Notary Public The foregoing instrument was acknowledged before me this day of , 20175 by Troy Miller as President of the Smuggler Park Home Owners Association. Witness my hand and official seal. My commission expires: Notary Public Smuggler Park Development Agreement Page 10