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HomeMy WebLinkAboutStudy Session Packet 05/02/2011 STUDY SESSION AGENDA CITY COUNCIL MEETING CITY OF WHEAT RIDGE, COLORADO Second Floor Conference Room 7500 W. 29th Ave. May 2.2011 6:30 p.m. Individuals with disabilities are encouraged to participate in all public meetings sponsored by the City of Wheat Ridge. Call Heather Geyer, Public Information Officer at 303-235-2826 at least one week in advance of a meeting if you are interested in participating and need inclusion assistance. APPROVAL OF AGENDA 1. Staff Report(s) 2. RTD Presentation -FasTracks Update 􀁾􀀠 Presentation on Wheat Ridge Middle School-Jose Martinez, Jefferson County Schools 4. Wadsworth Corridor Mixed Use Commercial Rezoning 5. Public Works Appeal Process 6. Massage Parlor Wheat Ridge City Council Matt Cohen, RTD Director, District M Chair, FasTracks Committee May 2,2011 s verVlew • Board Decision on Tax Referendum • FasTracks Update • Eagle P3 Project Update -Rail Car Mock-Up Display • Gold Line Status -Federal Grant, Phase 2 Construction -Wheat Ridge Station • West Corridor Status '" 􀁰􀁊􀀬􀀬􀁾􀀠 , __ "7.. .,' 􀁾􀀠 ..... : 􀀢• ..;:􀀧.. ." (1􀁾(.0" 􀀠 ""' • In March, RTD Board of Directors Agreed on the Following: -Approval of a financial plan that assumed a sales tax referendum in 2012 for an additional 0.4% -Board did not preclude an election in 2011 , would decide after more research that staff would conduct over 60-day review period -Approval of plan to allocate $305 million in under-bid savings from Eagle Project -which includes Gold Line -pending award of the Full Funding Grant Agreement -Work with DRCOG to begin review of two separate financial plans, one assuming an election in 2011 and one assuming an election in 2012 x • Board of Directors voted April 26 not to place a ' referendum on the 2011 ballot -􀁗􀁯􀁾􀁬􀁤􀀠􀁨􀁡􀁶􀁥􀁾􀀠􀁾􀁣􀁯􀁭􀁰􀁬􀁥􀁴􀁾􀁤􀀠originaL.program by 2019 .4 ., .... .. I" 't. __ _ __ "'-___ 􀁾􀀭 _ . : •• -:-: • -_ '. 􀁾􀀠 -􀁾􀀠201-2 tax question would a'ilow completion by 2020 • Decision followed several months of evaluation -Economic indicators -Input from regional stakeholders -Public input -Outside research from independent economic experts • Decision leaves current financial plan in place -Assumes a successful vote in 2012 -That alternative will be revisited next year -Projection without new tax shows 2042 completion x • RTD's current FasTracks financial plan assumes a successful 0.4% sales tax election in 2012 • This plan does not represent a decision or commitment at this time by the Board of Directors to place a sales tax increase on the ballot • RTD would like to thank all of its partners for the extraordinary efforts made this year to determine a path for completing the FasTracks program as soon as possible Next SleDs • Continue to work with regional stakeholders to maintain collaborative approach to completing the FasTracks vision • Implement comprehensive public outreach and marketing plan for the RTD base system and FasTracks • Develop 2012 Annual Program Evaluation to be presented in January 2012 • Redevelopment Union Station fv«"gt' •• n lyon. -... II 1uperlo< 􀁾􀀢􀀠 ltIe lOIoy-􀁾􀀠11 ,. ,.. --t " 1"" j, ... 􀁾􀀮􀀠 aJ_I._"--.i. \ I ( = ;( 1lIom""J -8 \ A...."" e, @> -UncIof Comcructlonl d􀁾A􀀠N·A'O' . I eo_-l Ct . ""'-P8cIIng -N NottoSca#e -bisdn91W1 􀁾􀀠 Porll+IIIcM -•PorIIlng 􀁾􀀠.. ., .............. ....... .... . -0001.-PIA s • 48 miles of new rail line currently in construction or . under contract to begin construction • Eight 􀁰􀀧􀁲􀁯􀁪􀁥􀁣􀁴􀁳􀁾􀁘􀁎􀁩􀁉􀁉􀀠be 􀁵􀁮􀁤􀁥􀁲􀁾􀁣􀁯􀁮􀁳􀁴􀁲􀁵􀁣􀁴􀁩􀁯􀁮􀀠this year: ... est L;ornaor: {o'ro comp -Denver Union Station: 300/0 complete -East Corridor (to DIA): Broke ground in August 2010 • All environmental processes completed • Signed agreements with BNSF and UP railroads • $308 million federal New Starts funding awarded for West Corridor • Procured the largest transit public-private partnership in the country -Eagle P3, at a $305 million budget savings -Savings allocated to remaining unfunded corridors 3 · Ct u: r..'. , I I ) • Full Funding Grant Agreement from the Federal Transit Administration • $1.03 billion covering Gold Line and East Corridor " • I nnovative federal pilot project for privatization • Award of grant will trigger full construction on Gold Line this summer • Last year's Notice to Proceed included final design on Gold Line • Model of new rail car goes on display this month • Mock-up shows front one-third of interior • Includes actual seating, lighting, storage racks . • Opens at Denver Union Station May 23 • RTD plans sneak peak in warehouse for Eagle Elected Officials • All-metro Elected Officials Briefing/Reception at DUS • This is NOT light rail, but larger commuter rail Purpose: • Display proposed configuration to verify contract compliance and resolve layout issues In special Interest group reeaoa • Facilitate public comment on handrails and handgrips -per outreach two years ago Actual interior of RTD's mock-up RTD Staff will review mock-up to_: -----------:-./Assure contractual compliance • Aisle widths • Seat sDacin • Luggage storage and racks ./Review and resolve open issues • Bicycle securing device • Placement of signage ./Assess details for safety 􀁰􀁯􀁮􀁤􀁥􀁲􀁳􀂷􀁾􀁉􀀭􀀭􀀭􀀭􀀭􀀭􀀭􀀭􀀭􀀭􀀭􀀭􀀭􀀭􀀭 ; .. 􀁾􀀠 -􀁴􀁾􀁾􀀠__ :. 􀀮􀁾􀀻􀀮􀀠 1 􀁾􀁾􀀬􀀮􀀠 ;:-. 􀀮 􀀻􀁾􀀮􀁾􀀠 I.tlt.; J . .............. -. t' , . • 􀁾􀀠r 􀁾􀀯􀀠.' .... !":< Examples of bicycle storage at other transit agencies CD CJ c:: ca 􀁾􀀠 ca CD Q. Q. « .o􀁾-􀀠 􀁾􀀠 .C..D. -c:: -c CD U) o Q. o 􀁾􀀠 D.. Status Receipt of "Full Funding Grant Agreement anticipated in July • Triggers Phase 2 Notice to Proceed • Right-of-way acquisition to begin • Contractual opening day July 1 , 2016 Wheat Ridge/RTD Intergovernmental Agreement • Provides for RTD changes to Ward Road Station and access roads • Identifies city's local match • Approved last week • RTD appreciates the city's good-faith efforts that have helped fashion a project that will enhance the local community and provide rapid-transit service to the metro region s u e • RTD West Corridor added more than $150 million to the local economy in 2010 • DTCG Wages Paid: $11.2 million • Equipment, services and supplies: $ 39.2 million • Subcontractors: $71.9 million • More than 500 people were employed on the West Corridor in summer 2010, with more than 70% hired locally • DTCG is directly conducting business with more than 490 businesses, of which 94% have local offices. • DTCG has subcontracted to more than 55 firms that employ crews and purchase supplies from local distributors • Contractors on the West Corridor employ local certified Disadvantaged Business Enterprises (DBE) s s Now -Summer 2012 Civil Construction Continues Mid-2011 -Spring 2013 Wads/Sheridan Garages Design/Construction Now -Dec 2012 Jan -May 2013 May 2013 Systems Construction RTD Operations Testing West Corridor open to public 􀁾􀀠Total Construction progress -66% complete 􀁾􀀠Overall West Corridor progress -75% complete -I ' tn CI) ::1 a 􀁾􀁾􀀴􀁾􀀠 ... J r-City of • 􀁾􀁗􀁨􀁥􀁡􀁴􀁒􀁌􀁤􀁧􀁥􀀠 TO: THROUGH: FROM: DATE: SUBJECT: Introduction Memorandum The Mayor and City 􀁃􀁯􀁵􀁮􀁣􀁩􀁾􀀠􀁾􀀠 Patrick Goff, City ManagerJJtj Ken Johnstone, Community Development Director Sarah Showalter, Planner II April 22, 2011 (for May 2 Study Session) Legislative Rezoning of Wadsworth Corridor In September 2010 City Council adopted new mixed use zone districts. The mixed use zoning encourages higher-density, mixed use development and allows for a streamlined, administrative review process. In writing the mixed use code, planning staff held meetings with property owners in priority redevelopment areas of the City, including the Wadsworth corridor. At these meetings, staff asked for input on the topic of City-initiated legislative rezoning. A legislative rezoning could benefit property owners by re-entitling their land at no cost, while allowing for any existing use or business (even those that become nonconforming under the mixed use zoning) to remain in perpetuity and, in most cases, expand. Based on feedback received at these meetings, staff recommended to City Council that the City first move forward with a legislative rezoning on the Wadsworth corridor, roughly between 38th and 44th Avenues. This area has demonstrated development interest as well as a strong interest from property owners in a City-initiated rezoning. Staff held a meeting for Wadsworth property owners in November 2010 to share the adopted mixed use ordinance and to ask for specific feedback on moving forward with a City-initiated rezoning. Staff also mailed a survey to all property owners, asking them to respond either in favor or against the rezoning. At the City Council Study Session on February 2,2011, staff presented the results of this survey. Of the 56 surveys mailed to property owners, 13 were returned. Of these 13 responses, ten were in favor of the rezoning and three were opposed. City Council decided to initially proceed with a rezoning map that included all properties, but specifically specifically asked staff to contact those property owners who expressed opposition. City Council then adopted a Resolution on March 14, 2011 to officially initiate the legislative rezoning. Since adoption of the Resolution, staff conducted outreach to the three property owners who expressed opposition and also held the required neighborhood meeting. The purpose of this memo is to summarize the outcome of the property owner outreach and the neighborhood meeting, and to request direction from Council for proceeding with the next steps in the legislative rezoning process. Rezoning of Wadsworth Corridor May 2,2011 Page 2 Property Owner Outreach Staff directly contacted the three property owners who expressed opposition to the rezoning in order to schedule meetings to discuss their concerns. Staff was able to meet with two local property owners: the owner of7630 W. 39th Avenue (where a large-animal veterinary clinic currently operates) and the owner of3885 Upham Street (which contains an office building). After meeting with staff, both of these owners changed their position and have submitted to staff in writing that they are in support of the legislative rezoning. The remaining property owner, a development firm based in Oregon, owns 7525 W. 44th Avenue, which is currently leased to a Pep Boy's store. This property is depicted in the attached map (Exhibit 1) in red. In response to the initial survey, the owner's attorney submitted a letter outlining their reasons for opposition to the rezoning and requested that their property not be included (Exhibit 2). The primary reason cited for opposition was a recorded agreement that places easements and development restrictions on their property and other adjacent properties. Specifically, they expressed concern that these easements, which can only be changed by consent of all property owners who are party to the agreement, would prevent redevelopment of the site from meeting some of the mixed use zoning requirements, such as a build-to for new buildings. The letter also cited concern that the proposed Mixed Use-Commercial (MU-C) zoning would discourage existing property owners from investing in their properties since they would not want to comply with the design standards in the code. They also stated concern with the City's larger objectives for higher density development and a mixed use town center since Wadsworth has traditionally been an auto-oriented street. Staff contacted the owner's representative twice -once via phone and once via email-and offered to schedule a time to talk with either or both the owner and attorney about their stated concerns. The attorney said that he would convey this information to his client, but staff has not heard back from either party. In order to address their concerns, staff sent a letter to the property owner's attorney outlining responses to their concerns. In particular, staff explained that the restrictions on development that result from the easements would also be an issue under the site's existing zoning since the property is within the contemporary overlay in the Architectural and Site Design Manual (ASDM). This overlay has build-to requirements similar to those in the MU-C zone district as well as architectural requirements that in some cases are even more restrictive than the MU-C zoning. It is staffs position that the easements are the result of a private agreement that could be amended, especially if the properties in the area came under one ownership, and that they are not a reason to preclude rezoning of the site. Staff also addressed other concerns stated by the owner, which may be reviewed in a copy ofthe letter (attached as Exhibit 3). Neighborhood Meeting The zoning code requires that a neighborhood meeting be held for any legislative rezoning. All property owners within a 600-foot radius of the rezoning area are invited to the meeting. Staff held this meeting on April 13, 2011 and approximately 30 property owners attended. The majority of attendees were residents who live near the Wadsworth corridor but are not property owners within the rezoning area. At the meeting, staff gave a presentation explaining the City's plans for Wadsworth and explaining why the rezoning to MU-C is being pursued. Staff also provided specific 2 Rezoning of Wadsworth Corridor May 2, 2011 Page 3 information about what the MU-C zoning would allow in terms of permitted uses, development standards, and design guidelines. Overall, the reaction at the neighborhood meeting was positive. Most of the questions received were not related to the rezoning, but rather to the potential widening of Wadsworth and the future of specific development sites (please see the neighborhood meeting notes, Exhibit 4). Next Steps and Requested Feedback Now that the neighborhood meeting is complete, the next step is to go to Planning Commission for a Public Hearing. Planning Commission will recommend approval or denial of the rezoning, and then the rezoning would go to City Council for final approval. Staff would like any input that City Council might have on the objections cited by the property owner that remains in opposition to the new zoning. We would also like direction on whether to schedule the public hearing before Planning Commission. Please note that, after the Planning Commission hearing is complete, City Council has the opportunity to amend the rezoning map when the case comes before them either at the first or second reading. Attachments: 1. Exhibit 1 -Updated Rezoning Map with property owner responses 2. Exhibit 2 -Letter from the attorney representing the owner of7525 W. 44th Avenue 3. Exhibit 3 -Letter to the attorney representing the owner of7525 W. 44th Avenue 4. Exhibit 4 -Neighborhood meeting notes 3 Rezoning of Wadsworth Corridor May 2, 2011 Page 4 4 ::: Proposed Rezoning Area Response " Yes " No c=J No Response No response, * but have had contact Wadsworth Potential Rezoning Owner Responses -April 14, 2011 ...,. .-..Q-.e >< III JACOBS CHASE Michael A. Smith (303) 389-4643 msmith@jacobschase.com 1050 17th Street Suite 1500 December 10,2010 City of Wheat Ridge Community Development Department 7500 West 29th Avenue, Second Floor Wheat Ridge, Colorado 80033 A TI'ENTION: Sarah Showalter sshowalter@ci.wheatridge.co.us Re: REZONING OF WADSWORTH BOULEVARD -WEST 38TH TO WEST 44TH Dear Ms. Showalter: I am writing on behalf of Pacific Realty Associates, LP, which is the owner of the property located at the northeast comer of the intersection of 44th Avenue and Wadsworth Boulevard in Wheat Ridge. That property is occupied by a Pep Boys store. It is a large site, containing 113,974 square feet, on which there is located a 27,756 square foot building and an approximately 86,000 square foot parking lot. Last year, this parcel generated $33,827.28 in real property taxes and in excess of $200,000.00 in sales taxes. My client strongly opposes the proposed rezoning. Additionally, my client would request that their property not be included in the area of the proposed rezoning if the City Council decides to proceed ahead. My client's opposition is based on a number of points. The first point has to do with the encumbrances, easements and restrictions of record. This portion of Wadsworth Boulevard has been an automobile-focused development since it was initially developed. As a result, the development of the individual properties along this portion of Wadsworth Boulevard has proceeded using schemes that supported and enhanced commercial uses and development based on automobiles. An examination of the status of the underlying title to many of these properties, including my client's property, would indicate that there are complementary cross easements and access easements that burden and benefit many of these properties. These easements generally exist to provide access from Wadsworth, 44th and 38th to a group of businesses sharing a parking lot. and to provide back and forth access across shared parking lots to those businesses. Because these easements affect multiple properties, it would take the consent of all of the owners of the affected properties to Denver, CO 80265 303-685-4800 303-685-4869 fax www.jacobschase.com Exhibit 2 City of Wheat Ridge Community Development Department ATTN: Sarah Showalter December 10,2010 Page 2 make any changes to those agreements. Additionally, the consent of any lenders who have encumbered any of these properties would also be required for changes. The Pacific Realty Associates, LP Property is encumbered by the attached AGREEMENT CREATING GRANT OF EASEMENTS WITH COVENANTS AND RESTRICTIONS AFFECTING LAND. This document imposes a number of restrictions and easements on my client's property. Many of those restrictions are fundamentally inconsistent with the terms of the proposed rezoning, however, the proposed rezoning does nothing to eliminate or modify the provisions of the AGREEMENT CREATING GRANT OF EASEMENTS WITH COVENANTS AND RESTRICTIONS AFFECTING LAND. This problem is critical, because no development can take place that would be inconsistent with these easements and rights without the amendment of the easements and rights, short of the exercise of eminent domain. A .property owner who might be be interested in developing its property in accordance witl11he proposed standards would find that the easements and other rights which affect his property would not allow the proposed development. Unless all of the property owners would be willing to amend their property rights, and all of their lenders would be willing to consent to those amendments, the proposed rezoning does not provide any meaningful opportunities for change. The proposed rezoning, even with the provisions for non-conforming uses, would only discourage the existing property owners from investing in those buildings and properties. The requirements for parking lot screening, street orientation and transparent facades, as examples, only serve to discourage property owners from improving their existing properties. The businesses along this portion of Wadsworth Boulevard provide substantial sales tax revenue to the City of Wheat Ridge. Any evaluation of the proposed rezoning should consider seriously whether the types of businesses that would occupy the proposed development would produce sales tax revenue that would replace the sales tax revenue generated by the existing businesses. Additionally, this concept of pedestrian-friendly development is not appropriate for this location. The portion of Wadsworth Boulevard proposed for this change is immediately south oflnterstate 70 -a large and very busy multi-lane highway. There is no prospect that Interstate 70 will ever be relocated away from its current location. The most likely future for Interstate 70 will be continued expansion. Interstate 70 serves as an almost complete barrier to persons coming on foot or by bicycle from north of Interstate 70. Additionally, the exit and entrance ramps on the south side of Interstate 70 make getting to this portion of Wadsworth Boulevard, (00275 186.DOC 2} City of Wheat Ridge Community Development Department ATTN: Sarah Showalter December 10,2010 Page 3 north of the interstate, also problematic and dangerous for pedestrians. Each of Wadsworth, 44th Avenue and 38th Avenue are major thoroughfares. Pedestrians will not easily be strolling across Wadsworth to window shop and explore. Additionally, this portion of Wadsworth Boulevard is not within a meaningful proximity to the FasTracks station proposed for the Gold Line to take advantage of the transit-oriented development possibilities. The proximity of Interstate 70 serves to provide a serious detriment to any residential development that would be proposed for these properties along Wadsworth--one of the goals of the proposed changes. The noise alone would discourage residential living. Additionally, the residential development planned in the proposed rezoning would be on the upper floors of vertical development. Those upper floors would be even more adversely affected by the noise from Interstate 70, Wadsworth Wadsworth Boulevard, 44th Avenue and 38th Avenue. The vision of a town center, as contemplated by the proposed rezoning, does not have a strong track record of success. Before any rezoning is adopted, other attempts at creation of town centers should be examined to evaluate the factors that led to success or failure. The most recent example in the metropolitan area was the attempt in Aurora, which has not yet succeeded in creating a pedestrian-friendly town center. In other locations where a town center has been created, the first, and most significant differentiating faCtor has been the fact that the entire property involved has been under the control of a master developer. Both Belmar and the Stapleton Town Center had that advantage. Here the properties covered by the proposed rezoning are owned by a fairly large number of owners, some of whom own large parcels and some of whom own small parcels. Both Belmar and Stapleton also had the advantage of being large parcels where the entire parcel was going to be developed over time. Both were designed with adjacent high density residential complements. The Wadsworth corridor does not have either of those advantages. Neither Belmar nor the Stapleton Town Center has a sufficient track record to determine if this type of town center development will be successful in the long term. Pacific Realty Associates, L.P.has significant experience in mixed use development. It is the developer of the 200-acre nationally recognized Oren co Station in Hillsboro, Oregon. This project was awarded the National Home Builders Association "Best Planned Community in America" in 2000 and the "ULI Top 10 Communities in the World" in 2002. Pacific Realty Associates, L.P. believes the requisite components for successful mixed use development does not exist in this Wadsworth Boulevard location. (00275186.DOC 2) City of Wheat Ridge Community Development Department ATTN: Sarah Showalter December 10, 2010 Page 4 Pacific Realty Associates, LP strongly opposes the proposed rezoning. If the proposed rezoning proceeds, Pacific Realty Associates, LP would request that the boundary of the proposed rezoning ends at the south side of 44th Avenue, or that the Pacific Realty Associates, LP property be excluded from the proposed rezoning. MAS:jc Attachment {00275186.DOC 2} ... ... 􀁬􀁜􀁃􀁊􀀧􀁊􀀻􀁊􀀺􀁾􀀱􀀱􀀻􀀺􀀠rf CI ',r; " '/'J 11(i fj ».1,: 11' ,...." /;1,::; 1 􀀻􀀮􀀧􀁾􀁉􀀻􀀺􀀠I'j'!; Hl'fll COVI::Il,:1'J':' ,,:10 l'I::;"'l'IC'fj r):v: /.!·T':r.'!' J :1'; 1.,,:1/) 􀀧􀁾􀀧􀀠.. n ,'J 􀁾􀁉􀁬􀀧􀀮􀀠7_!1 .: 􀀾􀀧􀀺􀀺􀀺􀀩 􀀧􀁾􀀬􀁬􀁬􀀠7. 􀁾􀀠 jiJ 􀁉 􀀺 􀁾􀀠 .. ' .. ' ?i:.? 11 􀁾􀀠 Ii. lA . TillS 􀀢􀁇􀁮􀀮􀁅􀁉􀀭􀀻􀁾􀀢􀁲􀀺􀀺􀀺􀂷􀀱􀁔􀀠 r.1.,uc;: thi!J 23rd day of ;I,arch , 􀀱􀁾􀀷􀀲􀀬􀀠 􀁢􀁾􀁴􀁬􀀧􀁉􀁃􀀨􀀩􀁮􀀠 S'IFE\'/1\Y STOnES, 􀁉􀀡􀁉􀁃􀁏􀁾􀁬􀀧􀁑􀁲􀀨􀀯􀁜􀁔􀁅􀁄􀀬􀀠 a 11aT.'j'1,md COT.'?ora ti on, 􀁨􀁾􀀠rc in calle:u "SafeHay" I ,md !'IlU;I\T P.1DGE il',TIO:U,L IU,:IK, il notional ba:1y.ing association, herein called "EanX:". RECITALS 1. SafeHay is the 􀁯􀁷􀁮􀁾􀁲􀀠of Parcel I as shown on the 􀁰􀁬􀁄􀁮􀀧􀁡􀁴􀁴􀁄􀁣􀁨􀁾􀁤􀀠 hereto as Exhibit "A" hcreof, and which is more particularly describc:d as Parcel I on Exhibit "D" hereof. 2. Bank is the owner of Parcel II as 􀁳􀁨􀁯􀁾􀁮􀀠on the plan attached hereto as Exhibit "A" hereof, Dnd which is more fully 􀁤􀁾􀁳􀁣􀁲􀁩􀁢􀁥􀁤􀀠as Parcel II on Exhibit 􀀢􀀢􀁂􀁾􀀠 hereof. 3. Safe\-Iay is the 􀁯􀁾􀁭􀁥􀁲􀀠of Parcel III as 􀁳􀁨􀁯􀁾􀁮􀀠on the ?lil:1 att!!.chec hereto as Exhibit "A" hereof, and which is r.:ore particula::ly c!escrio:c' as Parcel IlIon Exhibit "B" hereof, and Dank contem?lates the 􀀿􀁕􀁲􀁃􀁾􀁡􀀵􀁥􀀠 of said Parcel III from Safeway. 4. Safeway and Bank desire that said Parcel I, ParCel I!, and Parc:l III be developed in conjunction with each other to form a 􀁣􀁯􀁭􀁾􀁡􀁲 􀁣􀁩􀁡􀁬􀀠 shopping center (sometices hereinafter referred to as the 􀀢􀀵􀁾􀁣􀀿􀀿􀁩􀁮􀁱􀀠 centern ) and 􀁥􀁥􀁳􀁩􀁲􀁾􀀠saie Parcel I, Parcel II, and Parcel!1I ce subject to the easel:\ents ane! 􀁴􀁾􀁥􀀠covenants, c'onditions and restrict.::'ons herei:la':t.er. set forth, ?ursuant to a general ?lan of 􀁩􀁾􀀿􀁲􀁯􀁶􀁥􀁬􀀺􀁜􀁥􀁮􀁴􀀠 of said Parcel 􀁾􀀬􀀠 Par· cel II and Parcel III. A G R E E !-1 E H T 7n consiceration · that the following 􀁥􀁮􀁣􀁵􀁾􀁲􀁡􀁮􀁣􀁥􀁳􀀠shall be binding ' t:pon the 􀁾􀁡􀁲􀀡􀀺􀀺􀁩􀀨􀀻􀀺􀁳􀀠 :hereto and shall at-tach to and rU:1 􀁈􀁩􀁴􀁾􀀠Parcel I, Parcel 􀁾􀁬􀀠and Parcel III, and shall be for the benefit oi and 􀁳􀁾􀁡􀁬􀁬􀀠be 􀁬􀁩􀁾􀀧􀀺􀀮􀀽􀁴􀁩􀁯􀀺􀁬 􀀡􀀠 "-:' ... ' upon all future owners of said ?arcel I, Parcel II and Parcel :;:11 a::::' , 􀀮􀀬􀁾􀀠 . ", that all easements hc;rein set forth shall be a-::>ou:::-tena:'.t to t::e do::--:':'.z.nt :_ ·_·_· _· .. cstates, and in consic:eration of the 􀀿􀁲􀁯􀁾􀁩􀁳􀁥􀁳􀀬􀀭􀁣􀁯􀁶􀁥􀁲􀀮� �􀁮􀁴􀁳􀀬􀀠 􀁣􀁯􀁾􀁣􀀮􀁩􀁴􀁩􀁯􀀻􀀡􀀺􀀺􀀮􀀠 restrictions, easements and encur.\brancEs contained herei:'., Safe-..:ay ar.d Bank do hereby agree as follows: T E ' R M 5 1. -Building Araas w as used herein shall mean that nortion of Parcel I devoted frol:\ time to time to building im?rovenents, that 􀁾􀁯􀁲􀁴􀁩􀁯􀁮􀀠of Parcal II sholvn on Exhibit A as "Future Restaurant" a:-ld W?uture Shops·, and that portion of 􀁾􀁡􀁲􀁣􀁥􀁬􀀠III shown on Exhibit A as "Future 􀁂􀁾􀁾􀁾􀀢􀀮􀀠 ·Common Areas" shall be all of Parcels I, II, and III except said Building Areas. 2. No buildi:-lg shall be constructed 0:1 Parcels I, II or III, eXCEpt withi: the buildi:-lg a::eas or shall eXCEed one story in height (35 feet) 􀀨􀀿􀀺􀁾􀁳􀀠 mezzanines) 􀁡􀁮􀁾􀀠 􀁳􀁾􀁣􀁨􀀠buildings shall be fer 􀁣􀁯􀁾􀁾􀁥􀁲􀁣􀁩􀁡􀁬􀀠 􀁾􀁾􀁲􀀿􀁏􀁓􀁥􀁓􀀠 0': 􀁾􀁥􀀠 type usually 􀁦􀁯􀁾􀁮􀁣􀀠in a 􀁲􀁾􀁴􀁡􀁩􀁬􀀠 􀁳􀁨􀁯􀀿􀀿􀁩􀁾􀁧􀀠 􀁣􀁥􀁾􀁴􀁥􀁲􀀠anc that the tenants occupying 􀁳􀁡􀁾􀁥􀀠 􀁳􀁾􀁡􀁬􀁬􀀠be 􀀿􀁲􀁩􀁾􀁡􀁲􀁩􀁬􀁹􀀠 􀀽􀁾􀁴􀁡􀁾􀁬􀀠 anc sarvice 􀁴􀁥􀁾􀀿􀀺􀀭􀁬􀁴􀁳􀀠 0= 􀁴􀁾􀁅􀀠 type 􀁮􀁯􀁲􀁾􀁡􀁬􀁬􀁹􀀠a.ssccia'tcd ,.--ith a retail sho??i:-.q 􀁣􀁥􀀺􀀺􀀮􀁾􀁾􀀺􀀺􀀠 􀁡􀁾􀁣􀀠 !:>'..!i.lci::;-s shall be 􀁤􀁣􀁳􀁩􀁣􀁮􀁾􀁣􀀠a .. c 􀁢􀁾􀁩􀁬􀁴􀀠 􀁩􀁾􀀠 􀁣􀁯􀁮􀁦􀁯􀀽􀁾􀁩􀁴􀁶􀀠􀁷􀁩􀁴􀁾􀀠sound 􀁡􀀽􀁾􀁾􀁩􀁾􀀻􀁣􀁴􀁾􀁲􀁡􀁬􀀠 􀁾􀀬􀁤􀀠 􀁣􀁮􀀹􀁩􀁮􀁥􀁾􀁲􀁩􀁮􀁱􀀠stancards. It 􀁢􀁾􀁩􀁮􀁧􀀠 􀁦􀁵􀁲􀁴􀁨􀁾􀁲􀀭􀁡􀁾􀀺􀀺􀀺􀀭􀁅􀁥􀁤􀀠 􀁾􀁨􀁡􀁴􀀠 􀁴􀁾􀀺􀀠 buildings .ill be of fi=st cualitv const=ucticn ane 􀁡􀀺􀁣􀁨􀁩􀁴􀁥􀁣􀁴􀁵􀁾􀁾􀁬􀁬􀁶􀀠􀁤􀁾􀁓􀁾􀁃􀁾􀁅􀁾􀀠so 􀁴􀁾􀁡􀀺􀀠 the 􀁣􀁸􀁴􀁥􀁲􀁩􀁯􀁲􀂷􀁥􀁬􀁥􀁶􀁡􀁾􀁩􀁯􀀺􀀭􀁬􀀠c! each will be 􀁡􀁲􀁣􀁾􀁩􀁴􀁥􀁣􀁴􀁵􀁲􀁡􀁩􀁬􀁹􀀠 􀁡􀁾􀁤􀀠aesthetically cOI:\?atible "ith the other buildings, nnd so 􀁣􀁯􀁾􀁾􀁳􀁴􀁲􀁵􀁣􀁴􀁥􀁾􀀠 􀁴􀁾􀁡􀁴􀀠 􀁴􀁾􀀲􀀠 􀀺􀀽􀁾􀁾􀁴􀀠 wall of each of said 􀁢􀁾􀁩􀁬􀁤􀁩􀁮􀁾􀁳􀀠on Parcels I and II 􀁾􀁩􀁬􀁬􀀠be 􀁣􀁯􀁾􀁴􀁩􀁾􀁵􀁾􀁾􀁳􀀠at said '?rO?f'rty line, all as shO\,·:) on 􀁾􀀺􀀭􀀺􀀡􀀱􀁩􀁢􀁩􀁴􀀠 ";,"; and 􀀧􀀺􀁾􀀺􀀺􀀺􀀭􀁴􀁨􀁥􀀺􀀭􀀺􀀺􀀺􀁯􀁲􀀢􀀬􀀠 t:,e pZlrtics shall coo;::erat(; · to provide CC;:'..":lon :ootinc;ts a:1c 􀁣􀁮􀁣􀀽􀁯􀁡􀁣􀁘􀀺􀀭􀀮􀁾􀁮􀁴􀀺􀀠 permits or enscr.1ents for sar.\c to pernit 􀁴􀁾􀁥􀀠 construction of any adj;;ining 􀀬􀁾􀀢􀀬􀁬􀁬􀁳􀀬􀀠 or rCilc!l i'lor;:!;:!pent on construct:::'en and '.lsc 0: a 􀀿􀀮􀀺􀀡􀁲􀁴􀁾􀂷􀀠 I/illl 􀁉􀀧􀁩􀁴􀀮􀁾􀀠 caSCr.lents for sana 􀁩􀀧􀁬􀁮􀁾􀀠 the !ootinqs of such wnll, if 􀁴􀁾􀁄􀀠 use of a 􀀿􀁾􀁲􀁴􀁹􀀠 ""illl is 􀁣􀁬􀁾􀁣􀁾􀁣􀁤􀀠 acc,mt.ilble bv both 􀁯􀀮􀀺􀁬􀁲􀁴􀁩􀁾􀁳􀀬􀀠 It is 􀀺􀁵􀁲􀁾􀀡􀀺 􀂷􀁾􀁲􀀠 ac:rc.:,d ;>.;::! undcrsto0d tlut 􀁓􀀧􀀱􀀡􀀺􀁾􀁜􀀧􀀧􀀧􀁙􀀠 Idli 􀁣􀁯􀁮􀁳􀁴􀀮􀁾􀂷 􀁜􀀱􀁣􀁴􀀠 a s?ri:ls;lcrcd 􀁢􀁾􀁩􀁨􀁾􀁩􀁮􀀨􀁪􀀠 0;) ?,reel I nne DC\'clopcr "ill pr::>vitlc th:lt .,ny btlildin<:: 􀁣􀁯 􀀺􀀩􀀡􀀺􀁴􀁲􀁜􀁬􀁣􀁴􀁾􀀻􀁬􀀠 i!:'.!:'cdiilt::!ly ndjaccnt to the 􀁓􀁾􀁛􀁃􀀢􀀳􀁹􀀠building will 􀁾􀁬􀁳􀁯􀀠b0 􀁇􀁰􀁲􀁩􀁮􀁫􀁬􀁡􀁲􀁾􀁤􀀮􀀠2358 384 r ,r' I I . ' 3. SubjC.!ct to 􀁣􀁾􀀢􀀬􀀬􀀬􀀧􀁴􀁩􀁮􀀧􀁊􀀠 l!iJ!;e:lnonto of 􀁲􀀭􀀺􀁲􀁯􀁲􀀮􀁣􀁊􀀧􀀮􀀭􀀢􀁴􀁨􀁾􀀠 COlnr:1on llrCil !Sinll be U!;Cd for 􀁲􀁏􀁩􀁬􀁣􀁊􀁾􀀢􀀧􀀧􀀧􀀡􀀩􀀧􀀠 Huli':',/iJ:!I), in')rC:!;t; , .. 􀁾􀀬􀀠 1 (;(}r!!:::!I, pilrr.in9 of 􀁉􀁾􀁯􀁴􀀠1r veh1clG5, lviluin,} <lnd unloilcJinr; of cDr:un'"rciill "nu ol:l1(;:r '.Ic:llic) 0::, 'for 􀁤􀁲􀀮􀁩􀁶􀁇􀁾􀀯􀁩􀁬􀀢􀀠 purp0:ie:::, ilnd for the C0!: ';r"ni0ncc: ilnd cO;:l!:ort of 􀁃􀁴􀁬􀁾􀁴􀀬􀀿􀀽􀀺􀀮 􀁾􀁲􀀵􀀬􀀠 invitee!! <.Ind 􀁥􀁬􀁾􀁰􀁬􀁯􀁪􀀧􀁃􀀺􀁣􀁳􀀠 of iI'll bu:;ine:;:;('.· ilnd occupants of the b',1l1t:10,!S constructed within 5llid building ilreilS. Bilch party, ilS grnntor, 􀁨􀁾􀀽􀁥􀀺􀁾􀁹􀀠 f)rilnts to the 􀁯􀁴􀁨􀁾􀁲􀀠?urty for th'" bunefit of !';aid other party, its c,::1?loyccs, custOr.1crs illld invitees a nonc:y.clusi·/e caCGr:1cnt for. 􀁲􀁯􀁡􀁤􀁾􀁬􀁡􀁹􀁳􀀬􀀠 ',Jalf':􀁾􀀯􀁡􀁹􀁳􀀬􀀠 in9rcss ilnd egrC.!ss, the parr.ing 0: 􀁾􀁯􀁴􀁯􀁲􀀠vehicles, use of facilities installed for the: comfort and convenience of cnployces, 􀁣􀁵􀁳􀁴􀁯􀁾􀁯􀁲􀁳􀀠 􀀲􀁾􀁤􀁤􀀠 invitees on the 􀁣􀁯􀁾􀀢􀁯􀁮􀀠 ureas of the grantor's ?urcel. 􀁃􀁵􀁳􀁴􀁯􀁾􀀽􀁲􀁳􀀠 􀁩􀁬􀁾􀁇􀀠 ' invitees shall not be pcrmitted tl.) park in the comr:lOn areas excE:?t '"hile shopping or tran5acting business on ?arcel I, Parcel II or Parcel 􀁉􀁉􀁾􀀮􀀠 'Ernployees shall 􀁾􀁯􀁴􀀠be per::litted to perr. in th!': CO::lr.on a:-ea, ezc7?t .!.n a::':: designated as e::l?loj'ce ?arking areas 'olhich 􀀺􀁾􀁡􀁪􀀧􀀠 be fro!:l 􀁴􀀱􀀮􀁾􀁥􀀠 to t1.:;'[, r:utl.!a_ ap?roved bctv/eEon the parties hereto. Persons using 􀁣􀁯􀀺􀀺􀀧􀀮􀀺􀁾􀁏􀀻􀀩􀀠 areas 1.0. accordance with this 􀁡􀁧􀁲􀁥􀁳􀁾􀁥􀁮􀁴􀀠shall not be charged any =ee for 􀁳􀁵􀁣􀁾􀀠use. All of the uses pernitted vlithin thG cor...-;:on areas shall 􀁾􀁅􀀧􀀺􀀠 usee.! ,·:itl1 􀁲􀁥􀁡􀁾􀀺􀀺􀀠 and judgr:l(:nt so as not to interfere vii th the prit:larj' pur;::ose 0 = the 􀁣􀁯􀀻􀀺􀀭􀁟􀁾􀁾􀀺􀀺􀀠 ·aroas which is to provide for parking for the 􀁣􀁵􀁳􀁴􀁯􀁾􀁅􀀮􀁲􀁳􀀬􀀠 invitees 􀁡􀁾􀁣􀀠 employees of those businesse5 conducted within the building areas and fpr the servicing and and supplying of such businesses. The foregoing 'shall not be construed as 􀁦􀁯􀁾􀁢􀁩􀁣􀀱􀁣􀀱􀁩􀁮􀁧􀀠 the granting oC appropria,t;e and proper easet:lents for installation, ,repair and. re?lace'ment o,f stor!:l drains, utili ties, se\O/ers and other pro?€:::, serv.!.ces necessary for the orderly 􀁤􀁥􀁶􀁥􀁬􀁯􀁰􀁾􀁥􀁮􀁴􀀠and operation of 􀁴􀁾􀁥􀀠 􀁣􀁯􀁾􀁾􀁯􀁮􀀠areas 'and the buildings to be erected upon the building area, 30th 􀀿􀁡􀁾􀁴􀁩􀁥􀁳􀀠 will use their best effort to cause the installation 0= such 􀁵􀁴􀁩􀀡􀁩􀁴􀁾􀀠 􀁬􀁩􀁾􀁳􀁾􀀠 prior to the paving of the 􀁣􀁯􀁲􀀮􀁾􀁯􀁮􀀠 area. 􀁔􀁾􀁥􀀠 􀀿􀁾􀁲􀁴􀁩􀁥􀁳􀀠shall 􀁣􀁾􀁾􀁰􀁥􀁾􀁡􀁴􀁥􀀠 􀁩􀁾􀀮􀀠 the granting of easet:lents between the 􀀿􀁡􀁲􀁴􀁾􀁥􀁳􀀠nsreto to 􀀿􀁲􀁯􀁶􀁾􀁾􀁅􀀧􀀺􀀠 =0= 􀁳􀁾􀁣􀁾􀀠 utilities and services serving such buildir.gs and the 􀁣􀁯􀁾􀁾􀁯􀁮􀀠area. :4:'"'' When any building is constructed within the buildinc area en Parcels I, II or III, the common areas on Parcels on 􀁷􀁨􀁩􀁣􀁾􀀠the 􀁾􀁵􀁩􀁬􀁤􀁩􀁮􀁧􀁳􀀠are constructed shall be develooed in accordance with 'Exhibit "A" at the expense of the owner of said Parcel. 3ank acress that Safeway may fill, grade and install paving and other 􀁃􀁏􀁭􀁍􀁃􀁾􀀠area 􀁩􀀺􀁩􀁜􀀿􀁲􀁯􀂷􀁊􀁥􀁲􀁮 􀁣􀁮􀁾􀁳􀀠 or. st4c:-. ?cr-:.ions Clf the ParCel II common ar;e.s as 5a!e,.. Jav ' -may desire at the time Safeway constructs and it:loroves' tts 􀁣􀁯􀁾􀁾􀁯􀁾􀀠areas ·in the north 120 feet of Parcel I and Bank shall' reimburse 􀁓􀁡􀁦􀁳􀁾􀁡􀁶􀀠for i· the cost of such fill, grading and paving and othsr 􀁩􀁾􀁾􀁲􀁯􀁶􀁥􀁲􀀺􀁬􀁥􀁮􀁴􀁳􀀮􀀭􀁂􀁯􀁴􀁾􀀠 parties agree that at all 􀁴􀁩􀁾􀁥􀁳􀀠there shall be r:laintainsd on all ?arcels .1, 􀁾􀁉􀀠 and III not less than three (3) squara feet of developed 􀁃􀁾􀁨􀁾􀁯􀁮􀀠 ·area for each one (1) squars foot of total 􀁢􀁵􀁩􀁬􀁤􀁩􀁮􀁾􀀠floor area on said 1 __ .. 􀁟􀀺 􀁟􀁾􀁡􀁲􀁣􀁥􀁬􀁳􀀬􀀠 including all baser.1ents and r.1ezzanines. , Follc;>wing' 'c'o:;,pletion of the improver:lent of th: 􀁾􀁾􀀻􀁾􀁯􀁾􀀭􀁡􀀧􀀻􀀻􀁾􀀭 􀀻􀀭as a'fo!'esaic!, -part1.es hereto shall 􀁾􀁡􀁩􀁮􀁴􀁡􀁩􀁮􀀠said 􀁃􀁯􀁾􀁾􀁯􀁮􀀠area· · in cood 􀁣􀁯􀁮􀁤􀁩􀁴􀁾􀁯􀁮􀀠 􀁡􀁾􀁤􀀠 .:repair, said maintenance to include, \vithout lir:litina 􀁴􀁾􀁳 􀀮 􀁧􀁥􀁲􀀮􀁥􀁾􀁡􀁬􀁩􀁴􀁶􀀠 ·of the foregoing, the following: . ' --'(1'.) Haintainina the surfac'es in a level, s",-ooth and evenlv covered 􀁣􀁯􀁾􀁣􀁩􀁤􀀮􀁣􀀺􀀱􀀠with the type of surfacino naterial 􀁯􀁲􀁩􀁾􀀧􀀺􀀧􀀺􀀱􀁡􀁬􀁬􀀢􀀠. . -' installed or such SUbstitute as shall in ali res?=cts be 􀁾􀁱􀁵􀁡􀁬􀀠-in guality, use and curability. (8) Rer.1oving all papers, debris, filth and re fuse and 􀁴􀁨􀁯􀁲􀁯􀁵􀁧􀁨􀁬􀁾􀀮􀀠 sweeping the area to the extent reasonablv nect:!ssary to keep the . area .in a' clean and orderly condi tic-no -ee) 􀁐􀁬􀁣􀀺􀁣􀁩􀁮􀁃􀁪􀀬􀀮􀁫􀁥� �􀁰􀁾􀁮􀁧􀀠 i:'l :-e?air a:'ld re?lacin<: any !lL!ces'sary 􀁡􀁰􀁰􀁲􀁯􀁰􀁲􀀱􀀮􀁡􀁾􀁥􀀠 d1.rt:!ct1.onal 􀁳􀁾􀁧􀁮􀁳􀀬􀀠 markers and lines. (D) Operating, kt:!eping 􀁩􀁾􀀠 repair and rcplacinc, where necessary, such artificial lighting !acilitics as 􀁳􀁨􀁾􀁬􀁬􀀠be 􀁲􀁣􀁾􀁳􀁣􀀺􀀱􀀳􀁢􀁬􀁹􀀠 rcqu':'rad. (E) Maintaining all perimeter walls in a good condition and state .of repair, and (F) Maintaining all 􀁬􀁡􀁮􀁤􀁳􀁣􀁾􀁯􀁣􀁤􀀠 􀁡􀁲􀁾􀁮􀁳􀀠and mnking such 􀁲􀁥􀁰􀁬􀁮􀁣􀁾􀁮􀁾􀁮􀁴􀁳􀀠 of shrub5 and other landscaping AS is necessary. , : 􀀭􀀭􀀮􀀺􀀭􀀭􀁾􀀮􀀭􀀭 .... _-...... _..... .--.._ ._--_ . ._-.... . _--_._ _ ....... -_. _.. .. 􀁾 􀀮 􀁟􀀮 􀀧􀀠 . "-,. 1\11 portions of tho COlrl.':lon are,!!) Shill1 be 􀀱􀀧􀀱􀁡􀁩􀁮􀁴􀁩􀁬􀁩􀁮􀁾􀁤􀀠 as ouL" .· .. ,i above at the expense of the respective o',mer:; thereof, 'rhe arrang:! l'I'er t 􀁾􀀺 􀀡􀀠 the common arcas shilll not be. chan,]cd Cy.ccr>t by mutual ilqr-::(:ment of the owners of 75' of the land ilrea of Parc&l I and Pilrcel II and Parcel III, together with Gateway's written consent so long as it has an interest either 􀁡􀁾􀀠 􀁴􀁾􀁮􀁡􀁮􀁴􀀠or owner of Parcnl I and the consent c! Bank so long as it has an int-.=rs3t either as O'dner or tenant in Parcal II or III, Subje ct to the nutual 􀁡􀁧􀁲􀁾􀁾􀁮􀁾􀁮􀁴􀀠of the 􀁡􀁢􀁯􀁶􀁥􀀭􀁾􀁥􀁾􀁴􀁩􀁣􀁮􀁾􀁤􀀠 parties, a third ?arty nay be appointed as an agent of said parties to maintain the COmDon area in a nanner as above outlined,. Said 􀁴􀁨􀁩􀁾􀁾􀀠 party nay receive for such agency a fee that is nutually 􀁡􀁣􀁣􀁥􀁰􀁴􀁡􀁾􀁬􀁳􀀠to all parties to cover supervision, nanagement, accounting and simi:er fees which sums are to be included in the general maintenance 􀁥􀁸􀀿􀁾􀁾􀁾􀁳􀁥􀀠 paid b1 the respective o,mers of the 􀁣􀁯􀁾􀁾􀁯􀁮􀀠area, Each of the parties hereto a9ree to payor cause to be paid, 􀁰􀁲􀁩􀁯􀁾􀀠 to uelinquencJ , directly to the appropriate 􀁴􀁡􀁹􀀮􀁩􀁮􀁾􀀠 authorities all real property taxes and assessments which are levied against that part of the co::u:;on 􀁡􀁲􀁾􀁡􀀠 􀁯􀁾􀁭􀁥􀁤􀀠by it. 5. no signs shall be located on tha cOr:l.-:\on areas on Parcels I, II or III except signs advertising businesses conducted 􀁴􀁨􀁾􀁲􀁅􀁯􀁮􀀬􀀠 􀁷􀁩􀁴􀁾􀂷􀀠 no more than two (2) signs on the 􀁣􀁣􀁾􀀢􀁯􀁮􀀠areas on Parcel I and 􀁴􀁾􀁯􀀠 (2) si'9ns on the C017_':lOn areas on Parcal II and one (1) sign on ?arcel III. No signs shall obstruct the in9ress and egress shown 􀁯􀁾􀀠 Exhibit "A". .. 6. Each 􀁰􀁡􀁲􀁾􀁹􀀠hereby incennifies and saves the other party harD!ess from any and all liability, 􀁤􀁡􀁾􀁡􀁧􀁥􀀬􀀠 expsnse, causes of action, 􀁳􀁾􀁩􀁴􀁳􀀬􀀠 claims, or judgr..ents arising fro::! injury to person or property 􀁣􀀮􀀮􀀮􀁾􀁣􀀠 i occurring on its O\-In parcel except if 􀁣􀁡􀁵􀁳􀁾􀁤􀁤􀀠by the act · or 􀁮􀁥􀁧􀁬􀁥􀁣􀁾􀀠 i of the other party. Each party shall provice public liability 􀁾􀁾􀁳􀁵􀁲􀀭 I ance with limits of not less than 􀁾􀁬􀁏􀁏􀀯􀁏􀁏􀁏􀀯􀀤􀀳􀀰􀀰􀀬􀁏􀁏􀁏􀀠covering its 1 .... _ obligations 􀁵􀁮􀁤􀁥􀁾􀀠this parag::aph. ' . ' OJ' I-.o.c...-'" .. ' 7. Bank covenants not to permi t any portion of the building area of Parcel II or Parcel III to be devoted to the sale of 􀁦􀁲􀀻􀁳􀁾􀀠or 􀁳􀁭􀁣􀁾􀁥􀁤􀀠 ! meat, fresh fruit, fresh vegetables, fresh or smoked fish or poultry. rI . dairy products, frozen food or general groceries, or any combination .of these iteins. "". . ---􀀭􀀮􀀭􀀭􀀭􀁟􀁾􀀠.. 􀀽 􀀮􀀭 􀁟􀁾􀁾 􀀮􀀺􀁾 􀀮􀀠__ . _ .. _ .. I I I 8. Nothing herein shall be construed to give either party any 􀁾􀁾􀁴􀁥􀁲􀀭 est in any a\-Iard or payment ciace to the other party in 􀁣􀁯􀁮􀁮􀁥􀁣􀁴􀁩􀁣􀁾􀀠with any exercise of e::linent 􀁤􀁯􀁾􀁡􀁩􀁮􀀠or transfer in lieu thereof 􀁡􀁦􀁦􀁥􀁣􀁾􀁾􀁮􀁧􀀠 said other party's parcel or give the pUblic or any government 􀁡􀁾􀁹􀀠 rights in 􀁐􀁡􀁾􀁣􀁥􀁬􀁳􀀠I, II or III, it being agreed that in the 􀁥􀁶􀁥􀁾􀁴􀀠of any such 􀁥􀁸􀁾􀁾􀁣􀁩􀁳􀁥􀀠of eminent domair. or 􀁴􀁾􀁡􀁮􀁳􀁦􀁥􀁲􀀠in lieu thereof 0= any part of 􀁾􀁾􀁥􀀠 􀁣􀁯􀁾􀁾􀁯􀁮􀀠areas located on Parcels I, II or III, 􀁾􀁾􀁥􀁴􀀠the award attributable to the land and 􀁩􀁭􀁾􀁲􀁯􀁶􀁡􀁭􀁥􀁮􀁴􀁳􀀠of such 􀁰􀁯􀁲􀁴􀁩􀁯􀁾􀀠0= the cornnon areas shall be payable cnly to· the 􀁯􀁾􀁭􀁥􀁲􀀧􀀠 Tn fte thereof 2:1a no claim thereon shaL.1 be !:lade by the mme=s of any other portion 0:: the 􀁣􀁯􀁾􀂷􀀠 mon areas; proviced further, hOI,ever, that all such other 􀁯􀁷􀁮􀁥􀁾􀀳􀀠of t!:!O connon areas 􀁾􀁾􀁹􀀠file collateral clains \.ith the 􀁣􀁯􀁮􀁤􀀻􀁾􀁾􀁩􀁮􀁧􀀠 􀁡􀁵􀁴􀁾􀁾􀀽􀁩􀁴􀁹􀀠 over and above the value of 􀁾􀁾􀁥􀀠land area and 􀁩􀁾􀁮􀁲􀁯􀁶􀁥􀁾􀀻􀁮􀁴􀁳􀀠so 􀁴􀁡􀁾􀁾􀁾􀀬􀀠 ar.c provided that 􀁮􀁯􀁴􀁨􀁩􀁾􀁱􀀠in this 􀁰􀁡􀁲􀁡􀁧􀁾􀁡􀁰􀁨􀀠shall 􀀿􀁲􀁾􀁶􀁥􀁮􀁴􀀠a tenant 􀁾􀁲􀀽􀁭􀀠 makin9 a clair.1 􀁡􀁱􀁡􀁩􀁮􀁳􀁾􀀠an m-mer 􀁰􀁵􀁾􀁳􀁵􀁬􀁮􀁴􀀠to the provisions of 􀁡􀁾􀁹􀀠lease betl.'een 􀁴􀁥􀁮􀁡􀁾􀁴􀀠 􀁡􀁾􀁣􀀠o .. -ner for all or a 􀁯􀁯􀁲􀁴􀁩􀁣􀁣􀁾􀀠of an'" such aware. or navment. It is further agreed that the 􀁯􀁾􀁾􀁥􀁲􀀠 􀁯􀁾􀀠the fee of each 􀁰􀁯􀁾􀁾􀁩􀁯􀁾􀂷􀀠 of the 􀁣􀁯􀀻􀀺􀀭􀀮􀀮􀁾􀁯􀁮􀀠 area so conCE::mec shall 􀁮􀁾􀁣􀁾􀁾􀁴􀁬􀁶􀀠 􀁾􀁥􀁮􀁡􀁩􀁲􀀠anc restor!O the, _c_ mainin9 portion 0: the COr:l..":'.on area so 􀁯􀀢􀁾􀁥􀀻􀀻􀀻􀀠 as nf!iu: as 􀁰􀁲􀁡􀁣􀁴􀁩􀁣􀁃􀀧􀀮􀁾􀁬􀁥􀀠 to t:-.; condition of 􀁳􀁡􀁾􀁥􀀠 􀁩􀁲􀀮􀁾􀁥􀁤􀁩􀁡􀁴􀁥􀁬􀁹􀀠prior to such 􀁣􀁯􀁮􀁤􀁥􀁲􀀮􀁾􀁡􀁴􀁩􀁯􀁮􀀠or 􀁴􀁲􀁡􀁾􀁓􀁾􀁥􀁲􀀠 to the 􀁥􀁸􀁴􀁥􀁮􀁾􀀠that the 􀁰􀁾􀁯􀁣􀁥􀁣􀁤􀁳􀀠of such award arc sufficient to pal the costs of such restoration and repair and without ccntribution 􀁦􀁲􀁣􀁾􀀠anv other-Ol,.ner. -9. The easenents, restrictions, benefits, and obligations 􀁨􀁥􀁲􀁣􀁵􀁾􀁤􀁥􀁲􀀠 􀁳􀁨􀁾􀁬􀁬􀀠 create nutunl benefits nnd 􀁳􀁥􀁲􀁶􀁩􀁴􀁵􀁾􀁣􀁳􀀠 􀁵􀁾􀁯􀁮􀀠 Parcels I, II and III runnin9 with the land, This agreenant shnll 􀁾􀁩􀁮􀁤􀀠nnd inure 􀁾􀁯􀀠 􀁴􀁨􀁾􀀠 henefit of the pnrties hereto, their 􀁲􀁡􀁳􀀿􀁾􀁣􀁴􀁩􀁜􀀧􀁡􀀠 heirs, 􀁲􀁣􀁰􀁲􀁥􀁾􀁥􀁮􀁴􀁮􀁴􀁩􀁜􀀧􀁾􀁳􀀬􀀠 tenants, 􀁳􀁵􀁣􀁣􀁥􀁾􀁾􀁾􀁯􀁲􀁳􀀬􀀠 nnd/Dr assigns. -3-2358 386 '. , 􀀭􀀭􀀭􀀭􀀭􀀭􀀭􀀭􀀭􀀭􀀮􀀭􀀭􀀭􀀭􀀭􀁾􀀠... ---... ,---... 􀀭􀀭􀀬􀀮􀀭􀀭􀀭􀁾􀀭􀀭􀀭.. ----.. 􀁾􀀮􀀠" 2358 387 10. In event of breach or 􀁴􀁨􀁲􀁾􀁡􀁴􀁥􀁮􀁥􀁤􀀠breach of this 􀁡􀀹􀁲􀁥􀁾􀁾􀁥􀁮􀁴􀀬􀀠 􀀰􀁾􀀱􀀱􀀠 all record owners of 􀁐􀁾􀁲􀁣􀁥􀁬􀀠 I as a 􀁧􀁲􀁯􀁵􀁾􀀬􀀠 or record 􀁯􀁷􀁮􀁾􀁲􀀵􀀠of 75\ of the land area of "arcel II as iI grou!', or 􀁴􀁨􀁾􀀠 r:;cord owno;r of Parce l III,. or Silfeway SI) lonq as it has an 􀁩􀁮􀁴􀁾􀁲􀁥􀁳􀁴􀀠 as an o·.?ner in any 􀁰􀁯􀁲􀁴􀁾􀁯􀁮􀁳􀀠of Parcel I, or Bank so long as it has an interest as o'"tncr 􀁾􀁲􀀠 tenant in Parcel II or III, shall be entitled to institute 􀁾􀁲􀁣􀁣􀁾􀁾􀁣􀀭 1n95 for full and adequate relief from the consequences of said breach. 11. This agreement may be modified or cancelled 'only by the 􀀧􀁾􀁲􀁩􀁴􀁴􀁥􀀻􀀻􀀠 consent of all record owners of Parcels 1-·and III and 75% of the l:!...d area of Parcel II, together with Safeway's written consent 􀁾􀁳􀀠 lona as it has an interest as either tenant or owner in Parcel I, and the -c:nsent of Bank so long as it has an 􀁩􀁮􀁴􀁾􀁾􀁥􀁳􀁴􀀠 in Parcel II or III 􀁥􀁩􀁴􀁾􀁥􀁲􀀠 as owner or tenant, which consents shall not be unreasonably 􀁾􀁩􀁴􀁨􀁾􀁥􀁬􀁤􀀮􀀠 12. Each and every charge or burden im?osec or that 􀁾􀁡􀁹􀀠be 􀁩􀁾􀀿􀁯􀁳􀁥􀁤􀀠 upon said Parcels I, II' or III or any part thereof, 􀀿􀁵􀁲􀁳􀁵􀁾􀁮􀁴􀀠to 􀁾􀀬􀁹􀀠 proYision of this 􀁡􀁧􀁲􀁥􀁥􀁾􀁥􀁮􀁴􀀬􀀠 is, and shall at all tineS be, subject 􀁾􀀬􀁤􀀠 subordinate to the lien or charge of any nortgage or deed of 􀁴􀁲􀁾􀁳􀁴􀀠 made in good faith and for value, 􀁡􀁦􀁦􀁣􀁣􀁴􀁩􀁮􀁾􀀠said Parcels I, II 0= III or 􀁡􀁮􀁾􀀠part thereof, or any 􀁩􀁾􀁾􀁲􀁯􀁶􀁥􀁾􀁥􀁮􀁴􀁳� �nON or hereafter 􀀿􀁾􀁇􀁣􀁥􀁤􀀠. thereon, and a breach of any of the covenants or coneitions 􀁨􀁥􀀽􀀽􀁾􀀽􀀮􀀠 shall not defeat or render invalid the lien or charge of 􀁾􀀧􀁙􀀠 􀁳􀁵􀁣􀁾􀀠 mortgage or cleed of trust; 􀁾􀁲􀁯􀁶􀁩􀁤􀁡􀁤􀀠hOHevs!", tbat title 􀁴􀁾􀀠any said property acquired through sale unce= foraclosure of 􀁡􀁾􀁹􀀠 􀁳􀁾􀁣􀁨􀀠􀁮􀁯􀀽􀁾􀁾􀁡􀁧􀁥􀀠 or deed of trust whather foreclosure is affected by ?owe!" of sale, judicial ?roceedings, or otherwise, shall be subject to all 􀁳􀁵􀁣􀁾􀀠 charges and burdens affecting saia Parcels I, II or III 􀁡􀁾􀁾􀀠 􀁦􀁵􀁲􀁴􀁾􀁥􀁲􀀠 ;:. provided, that except to the extent hereinabove set forth, 􀁾􀁯􀁴􀁨􀁩􀁾􀁱􀀠 contained in this paragraph shall 􀁩􀁾􀁰􀁡􀁩􀁲􀀠 the priority of this 􀁡􀁾􀀽􀁥􀁥􀂭 ment over' the lien or charge of any such mortgage or aeed of 􀁴􀁲􀁾􀁳􀁴􀀮􀀠 13. If during the existence of this agreement safeway shall sell or transfer or othen-lise terminate its intere'st as 􀁯􀁾􀁭􀁥􀁲􀀠or 􀁴􀁥􀁾􀁾􀀧􀁴􀀠 iro Parcel I or I!I. or in the avent Bank shall sell or transfe= or 􀁯􀁾􀁾􀀽􀀽􀂭 wise terminate its interest in Parcel II or III, then fron 􀁾􀀬􀁤􀀠after the effective date of such sale, transfer or 􀁴􀁥􀁾􀁩􀁮􀁡􀁴􀁩􀁯􀁮􀀠of 􀁩􀁮􀁴􀁥􀀡􀀢􀁥􀁳􀁾􀀬􀀠 Safeway or Bank shall be released and discharged from any and all obligations, responsibilities and liabilities under this agreenant, exco?t those which have already accrued as of such date. 14. Unless othen-lise cancelled and terminated, this agreement and all the 􀁥􀁡􀁳􀁥􀁾􀁥􀁮􀁴􀁳􀀬􀀠 rights and obligations hereof shall automatically 􀁴􀁥􀁾􀁩􀂭 nate and be of no further force or effect after December 31, 2023. IN l-lITNESS i1HEREOF, the parties hereto have executed this agreement • . : .. "-;.. ..... .. 􀁾􀀢􀀠V 􀁾􀀺􀀭􀀺􀀠 :, 􀁾􀁾􀀬􀁾􀀮􀀮􀀠 I 'I:.:..; ..... 􀀢􀀧􀁾􀀮 􀀧􀀠 􀀢􀀺􀁾􀁯􀁲􀁾􀁯􀁲􀁾􀀨􀁥􀀠'seal) 􀀼􀁾􀀮􀀺 􀀮􀁜 􀀮􀀺􀀩􀀺􀀭 .. j" l, \;'\:; ' 􀀺􀀺􀁾􀁾􀁾􀀮􀁩􀀯􀀧􀀷􀀱􀀮􀀧􀀺􀀠 􀁾􀀠 􀁾􀀠􀁾􀁾􀀠 􀀧 􀁾 􀀮􀁜􀀺􀀠:: ......... ';-:;'. . :-. ., , (...' .... : 􀀧􀂷􀁺􀁾􀀠..-􀁾 􀀮􀁾􀀠••••.. ... .. 􀁾􀀺􀁾􀀮􀁾􀀮􀀧􀀬􀀠 ",r.u\:..., '. ' 􀁾􀀢􀀬􀀺􀀠.. ..---.--. . ' " .... ___ . .... ....... . ....,. .. Jo.·_'v· SAFENAY STORES, 􀁉􀁾􀁃􀁏􀁒􀁐􀁏􀁒􀁁􀁔􀁅􀁄􀀠 (a Maryland corporation) ))-J".J7 By 􀁾􀀠t;, ...... ! -" . 􀀭􀀭􀀮􀁾􀀻􀁲1􀀠11< <--Its 􀁁􀁳􀁳􀁾􀁳􀁴􀁡􀁮􀁴􀀠 􀁖􀁾􀁣􀁥􀀠 President B.y 􀁬􀁩-􀀺.4􀁾􀀺, 􀁛􀀯, 􀁊􀁦􀁾􀀧􀀠 􀀠. 􀁉􀁴􀁓􀀺􀁘􀁓􀁳􀁾􀁾􀁓􀁥􀁣􀁲􀀽􀁴􀁡􀁲􀁹􀀠 -4-Z::J8 387 . . __ .. __ ., . .. -. 􀁾 􀀭 .... . _.,' • • ,_ ... .. ••• • 4 . ... .. __ ""T '-' 􀀭􀀮 􀁾􀀠 _. . ...:::--.:::....:.--:. ; .. : .. -::,.:;.:... .. :...-.:.-::.:. ::--.... " :-... :-:-:--.-.. : .... -:.. . .0.. .i"!: -=-:: 􀁾􀁴􀁮􀁧􀀠 Co :::0 r .... c: Z", c.-.; "''''Z .... 0 c::» a ....... -<", -"'00( n,..o:--zoo '1 􀁾􀀠.J:-<\" '. c,'--􀁅􀁾􀁾􀀠 C,I(...J r1 􀀢􀀱􀁲􀁾􀀠 -<\0-" ,., --:o1'Tl g ::s: °po.::ll "'OVI '" -000 ; (J);;! X Z c.J PARCEL I 􀁾􀀠 The Sont;l 820 eet of B:'ocks 5 ;J.r.c1 6, CO!.iLER';':; 􀁇􀁾􀀮􀀭􀁜􀀮􀀧􀀺􀁇􀀠 EXCEPT t:le E:t5 EXCEPT tha r:rt5 feet of 􀁳􀀺􀁴􀁾 􀀨􀁬􀀠 E EXCEPT the E:\s EXCEPT 􀁴􀁾􀁥􀀠 \';es EXC:::;PT the \';8S feet of s ... id B EXCE:!Tl' the \"e.3 􀀱􀀴􀀳􀀮 􀁾􀀠 feet of the South 145 􀁦􀁥􀀸􀁾􀀠of 􀁳􀁾􀁩􀁤􀀠 􀁮􀁬􀁯􀁥􀁾􀁾􀀠 5, 243 feat of the 􀁘􀁯􀁾􀁴􀁨􀀠 120 feet of 'til 3 SOtlth 320 5, feet 10 fe:=t 22 ft.?'2t of 5;.id Bleck 5. of the 􀁓􀁣􀁾􀁴􀁨􀀠 lsb feet of 't!le 􀁾􀁯􀁲􀁴􀁬􀁬􀀠 170 􀁦􀁥􀁥 􀀧 􀁾􀀠 ock G, ::-..no SI".id Blecl.:: G, of 􀁴􀁩􀁾􀁾􀀠 􀀵􀀰􀁾􀁴􀁾􀀠320 175 feet of the South 150 feat of snid Slock 3 , and ','J EXCr:?'l' 􀁾􀁨􀀲􀀠 SOll-til 10 fee-l of 􀁃􀁯􀁵􀁾􀁴􀁹􀀠of Jeff0rson , State 􀁯􀁾􀀠 􀁃􀁯􀁬􀁯􀁾􀁾􀁤􀁯􀀮􀀠 PARCEL II said 􀁅􀁬􀁯􀁣􀁾􀁜􀀺􀁳􀀠 5 􀁔􀁾􀁥􀀠South 285 􀁦􀁥􀁥􀁾􀀠ot 􀁴􀁾􀁥􀀠 􀁎􀁯􀁾􀁾􀁾􀀠310 􀁦􀁥􀁥􀁾􀀠of 􀁂􀁬􀁯􀁣􀁾􀁳􀀠5 and 6, 􀁣􀁯􀁾􀁬􀁥􀁨􀁡􀁮􀀠􀁇􀁾􀁡􀁮􀁳􀁥􀀬􀀠 er.cept tha 􀁾􀁳􀁴􀀠􀀲􀁾􀀳􀀠feet 􀁯􀁾􀀠 􀁳􀁡􀁾􀁤􀀠 Block 5 and 􀁥􀁺􀁣􀁥􀁰􀁾􀀠 􀁾􀁾􀁥􀀠􀁾􀁥􀁳􀁴􀀠22 feet c f the South 173 feet ot the North 310 feet of 3aid 􀁡􀁬􀁯􀁾􀁾􀀠6 and 􀁥􀁸􀁣􀁥􀁾􀁴􀀠 􀁴􀁾􀁥􀀠West :15 􀁾􀁥􀁥􀁴􀀠0: the 􀁓􀁯􀁾􀁴􀁨􀀠122 􀁦􀁥􀁥􀁾􀀠of 􀁴􀁾􀁥􀀠 􀀺􀁾􀁯 􀁾􀁾􀁨􀀠137" 􀁦􀁾􀁥􀁴􀀠 0: .said 􀀺􀁏􀁬􀁯􀁣􀁾􀀺􀀠 6) Cour.ty of Jef:fc:-so:'., State of: Cclo:,2.co. PARCEL III The North 140 feet of the South 150 feet of the East 165 feet of the West 175 feet of Block 6, COlJLE;-;_-l.X G?_-"XG::: I EXCEPT th.:.t: part of said Block 6, described as foll07{s: 􀁂􀁥􀁧􀁩􀁮􀁮􀁩􀁾􀁧􀀠at the Southwest 􀁣􀁯􀁲􀁾􀁥􀁲􀀠of said 310ck 6; .Do. OD 0 en N 01 thence Xorth along the 􀁾􀁥􀁳􀁴􀀠 line of 􀁂􀁬􀁣􀁣􀁾􀀠 6 a 􀁤􀁩􀁳􀀺􀁡􀁾􀁣􀁥􀀠of 30.00 feet; thence East and oarallel to the South line of Bleck 6 a 􀁤􀁾􀁳􀁴􀁡􀀽􀁣􀁥􀀠 􀁯􀁾􀀠 10.00 feet to the true poi=t of beginning; thence along a curve to the left a 􀁤􀁩􀁳􀁾􀁡􀁮􀁣􀁥􀀠of of 31.45 feet, cectral angle of said curve is 90005' and the radius of 20.00 feeti thence West and parallel to the South line of Block 6 a distance of 20.00 feet; thence North and 􀁰􀁾􀁲􀁡􀁬􀀱􀁥􀁬􀀠to the West line of Block 6 a distance of 20.00 feet to the true point of beginning, 2:]58 396 EllHIBIT B r , /"" { .. ' 2358 397 STATE OF COLORADO 55. CITY AND COUNTY OF DENVER The foregoing instrument was acknowledged before me this 27th day of March. 1972. by R. Kent Landmark, as Vice President, and William P. Johnson. as Secretary, of WHEAT RIDGE NATIONAL BANK. a national banking association . .. 􀁬􀀮􀁎􀁴􀁲􀀺􀁯􀀮􀁲􀀮􀀧 􀁾􀀧􀀼􀀢􀀧􀀺 􀀢 􀀺􀀻􀀧􀀻 􀂷 􀁉􀀬 􀁾 􀂷􀀮􀁉􀀺 􀁴􀁬􀀧.􀀠. e, 􀀱􀀹􀀱􀁾􀀠 My commission expHes ;_-_' _________ -"'---WITNESS my hand and official seal . . ' .''. (: .• 1," ':'( ' .;:. ',' STATE OF CALIFORNIAJ BS. COUNTY OF ALAMEDA The fpreRo1ng 1nstrument was acknowledged before me th1s _-.o::2c.;4..:tc:;hc-day of .. Iarc!h , 19 72 , by PI\TRICK S. TOT"!71'1 as Assistant Vice Presldent,8iiQ 􀁈􀁉􀁃􀀺􀁉􀁉􀁾􀁮􀁄􀀠 !t. C05T8LLO , as' Assistant Secretary, of SAFEWAY 􀁓􀁾􀀠INCORPORATED, a corporat1on duly organ1zed and ex1st1ng under and by v1rtue of the laws of the state of 􀁾􀀡􀁡􀁲􀁹􀁬􀁡􀁮􀁤􀀮􀀠 MY notarial commiesion expires: ·WITNESS my hand nnd off1clal 􀁾􀁥􀁡􀁬􀀮􀀠 October 5, 1975 (Notar1al Seal) Seal) 􀀻􀁓􀁬􀁬􀁬􀁮􀀬􀁵􀁵􀁉􀁉􀁉􀁉􀁉􀁕􀁕􀁬􀁬􀁬􀁬􀁯􀁩􀀮􀀺􀁆􀁾􀁡􀁬􀁾􀁬􀁳􀁅􀁾􀁕􀁉􀁉􀁉􀁉􀁉􀁾􀀠 􀁾􀀠0 PHYWS G. l.lNf 􀁾􀀠 􀁾􀀠 ..􀁾􀀮 􀀠 􀁒􀀨􀁊􀁦􀀺􀁾􀁾􀁾􀁾􀁃􀀠􀀶􀁾􀁾􀁬􀁁􀀠 􀁾􀀠 􀁾􀀺􀀧􀀢􀀠 I, '"' .. lulu tr,uu OrI. $,It1S ; =.. II"'IIIIIIIIIII'III.II.IIIIIIIIUIIIIIIIIII,III'IIIIf-Colorado Aclrnowledgment. NOTARY PUBLIC in an or the 􀁳􀁴􀁾􀁴􀁥􀀠of Cu11forn1a, 􀁜􀁾􀀱􀁴􀁨􀀠 prlncipal offlce 1n the County of Alameda. Z358 397 [ -.-----.---.---------.------------. -􀀭􀀭􀁾􀀠--.---.---------􀀭􀀭􀀭􀀭􀁾􀀭􀂷􀀭􀀭􀀭􀁬􀀠-I 􀁾􀀠 r I I 􀁾􀀠 􀁾􀀠 . i r --1 --· ! I I I . I I I I I. 􀀬􀀮􀁑􀀢􀁾􀀮􀀧􀀠 -VANCe" sm<i&T 1 I -....; --1r1i 1 I ! I Till II I I! 􀁾􀀠 􀁾􀀠'. I i· i I f I I-i -I ! I l·-t I I ! I I :1 ---_ .. _-... -----=::".. FIllST 􀁁􀁍􀁲􀁾􀁉􀁾􀁜􀁉 􀁅􀁾 􀁔􀀠TO ,\GIU'E'tr:NT r.RI; ATrNG 􀁇􀁒􀁁􀁾􀁔􀀠01' EASf:􀁾􀁦􀁅􀁾􀁔􀁓􀀠 NITII 􀁃􀁏􀁖􀁅􀁾􀁁􀀮􀀧􀁬􀁔􀁓􀀠 AND RESTRIr.rroNS 􀁁 􀁆􀁆􀁅􀁃􀁔􀁉􀁾􀁇􀀠 LAND ORPORATED 􀁓 􀁁􀁆􀁛􀁉􀁾􀁁􀁙􀀠STORES, INCI, a Maryland corporation (herein ca ll ed "Safeway"). and lilIEAT RIDGE NATlO.'lAL !lANK, a national banking association (herein called "Bank"), agree as follows: 1. Bank and Safe\;ay executed a certain Agreement Creating Grant of Easements with Covenants and Rcstrictions Affecting Land dated 􀁾􀁡􀁲􀁣􀁨􀀠 23, 1972, and recorded in Book 2358 at page 384 of the Records of the Clerk and Recorder of Jefferson County (hereinafter called the "Agreement"). 2. The present record owners of Parcels 1 and 3 referred to in the Agreement is Safeway, and the present record owner of Parcel 2 referred to in the Agreement is the Bank . 3 . Bank and Safe\;ay, being the record owners of all the real estate affected by the Agreement, hereby modify said Agreement by deleting therefrom the Exhibit A which is attached thereto and inserting in lieu thcreof the Amended Exhibit A attached hereto . 4. Bank and Safe\;ay each consent to the foregoing modification of the Agreement. IN WITNESS WHEREOF, the parties hereto have executed th.is agreement this 26th day of __ 􀁾􀀱􀁾􀀱􀁡􀁾􀁲􀁾􀁣􀁾􀁨􀁾􀀠_____ , 1973, for themselves, their successors and assig:lS . STATE OF COLORADO City and County of Denver SAFEWAY STORES, INCORPORATED (a 11aryland corporation) ./􀁾􀀠 .; By 􀀨 􀁾 􀀮􀀮􀀮􀀮􀀩􀀠 c ..) 􀁾􀁾􀀠 Assistant Vice President 􀁂􀁙􀀭􀀭􀀭􀁦􀀧􀁾􀀠 􀁾􀀯􀀧􀁊􀁊􀁾􀁊􀁊􀀮􀀨􀀠 􀁊􀁬􀁴􀁾􀁍􀁾􀁲􀁉􀁡􀀢􀀬􀀭 􀁁􀁳􀁳􀁩􀁳􀁴􀁡􀁮􀁴􀁾􀁣􀁲􀁥􀁴􀁡􀁲􀁹􀀠 WHEAT RIDGE ss. of _The 􀁦􀁏􀁾􀁩􀁮􀁧􀀠instrument was acknowledged bef?re 􀀶􀁾􀀠􀁾􀁾􀀠, 1973, by R. Kent Landmark, as VIce ,r-J me this /day President, and William P . .Johnson, as Secretary, of \l'JI£J\T Rj()GL: NATIONAL BAl'llK, a national banking association. 􀁾􀁦􀁹􀀠 comm i ss i on ex pi re s : 􀁾􀀢􀀢􀀢􀀭􀀢􀁾􀀺􀀮􀁌􀀮􀁕􀀢􀀬􀀽􀀭􀁟􀀮􀀠 't-J,'--'--.I-,r,-,--7-__-.7_ Y"'" J 􀁫􀁉􀁶􀁊􀂷􀁾􀀮􀀠 <w IHTNESS MY llANO AND OFFICIAL SEA/􀀯􀁾􀁲􀁦􀁩􀀻􀀠 /!-55. County of Alameda . of The foregoing instrument was 􀁡􀁣􀁫􀁮􀁏􀁬􀁾􀁬􀁥􀁤􀁧􀁥􀁤􀀠 before me this March , 1973, by PATRI CK S. TOTMAN 􀀭􀀭􀀬􀁁􀀡􀀺􀀡􀀮􀁳􀁾􀁳􀀮􀁊􀀻􀁴􀀢􀀬􀁟􀁖􀁾􀁬􀀮􀀡􀀺􀀮􀀮􀂷􀀠􀁣􀁾􀁥􀁾􀀮􀀮􀀡􀀻􀁰􀁾􀁲􀁾􀁥􀀺􀀮􀀺􀁳􀁾􀁬􀀮􀀡􀀺􀀮􀀮􀂷􀀠􀁤􀁾􀁥􀁾􀁮􀁾􀁴􀀬􀀭􀀭__ • and RICHARD Ii. COSTELLO 􀁔􀁁􀀷􀁓􀁾􀁳􀁾􀁩􀁾􀁳􀀢􀀢􀁴􀀢􀀬􀁡􀁾􀁮􀀡􀀮􀀮􀀧􀀺􀁴􀀺􀀮􀀮􀀮􀀮􀀮􀁾􀁓􀁾􀁥􀁾􀁣􀀺􀀺􀀮􀀺􀁲􀁾􀁥􀀽􀀽􀀭􀁴􀁾􀁡􀁾􀁲􀀮􀁬􀀮􀀮􀁙􀀮􀀬􀀮􀀭􀁟􀀭􀀭􀀺􀁟􀀮􀀠 of SAFcWJ\Y STORES, INCORPORATED, duly organized and existing under and by virtue of the laws of the Maryland. My commission expires: __ 􀁾􀀱􀁾􀁏􀁾􀀭􀁾􀀵􀁟􀀭􀁾􀀷􀁾􀀵􀁾􀀠_________ __ WITNESS MY AA'iO AND OFFICIAL SEAL. 26thday as as a corporation State of 􀁥􀀧􀁵􀁮􀁕􀁈􀁉􀁕􀁉􀁕􀁕􀁕􀁦􀁬􀁕􀁦􀁕􀁴􀀮􀁴􀁾􀁉􀁉􀀧􀀮􀀢􀀢􀁉􀁉􀁉􀁉􀁾􀁉􀀮􀀧􀁦􀁬􀁬􀁬􀁬􀁬􀁬􀁦􀁬􀁦􀁦􀁬􀀺􀀧􀀠 \]f) ( i . I i = 0 OHIU,\1. 􀁾􀁌􀁜􀁌􀀠 =_ _􀁌􀀮 􀁊􀁾􀀢􀀧􀁩􀁊􀀮􀁬􀁉􀀨􀁬􀀢􀀡􀀯􀀮􀁪􀀮􀀧􀀩􀁾􀁷􀀭􀁌􀁵􀀮􀁉.􀀠..Q. .L-;..I"r:../.'j. ..,.. L,= . '..,.. ". . . 􀁜.􀀬. 􀀮􀀮􀀻􀀮􀁜􀀮􀀬􀀬􀀺􀁜􀀾􀀬􀀭􀁾􀀠_________ :: PHYlLIS G. l;,Nf:: Ju Nota ry Pub 1 i c 􀁾􀁬􀀮􀀠 o? :\ NOTARY f'tlI!Ui; r:AlIIJR;11' ". Phyllis G. Lane :: ''-.'':. 􀁾􀀠 At.AMEur\ (,Jur-.:1 'r 􀁾􀀠 '; iir Cllt;lmlnilll llv!rn OCI.5, 􀀡􀁾􀀺􀀺􀀮􀀠 :: -l l lltll'IIJ"UU I I'Ht)IIUlllt'IJltlflI1 1tllllt!lttlll:: -2 - -_ ..! ... _ .... -r. .... . i I I I ' ! l , i I _. ____ • _ _ . __ . • _ .• . v_¥• ••••.•.. •...•.. • •• _ ••.• _. __. _ •• 􀁟􀁾􀀠.• ____. __ • _ _ _ •••..• -_. ...... _.1 .... . City of 􀁾􀁗􀁨􀁥􀁡􀁴􀁾􀁧􀁥􀀠 􀁾􀁏􀁍􀁍􀁕􀁎􀁉􀁔􀁙􀀠DEVELOPMENT City of Wheat Ridge Municipal Building 7500 W. 29th Ave. Wheat Ridge, CO 80033-800 I P: 303.235.2846 F: 303.235.2857 April 21 2011 Mr. Michael A. Smith Jacobs Chase Attorneys 1050 17th Street, Suite 1500 Denver, CO 80265 Re: City-Initiated Rezoning of the Wadsworth Corridor Dear Mr. Smith, I am writing in response to your letter, dated December 10, 2010, which you wrote on behalf of your client, Pacific Realty Associates, LP, the owner of 7525 W. 44th Avenue. I, along with the Community Development Director, Kenneth Johnstone, attempted to set up a conversation with you and your client to discuss your client's reasons for opposing the rezoning. Since we have not heard back from you or your client, we wanted to send a letter addressing the concerns raised in your letter from December. As indicated during a brief phone call on March 21, 20 II , the Wheat Ridge City Council adopted a resolution on March 14, 2011 that officially started the process of a legislative rezoning of properties on the Wadsworth corridor, roughly between W. 35th and W. 45th Avenues, to the Mixed Use-Commercial (MU-C) zone district. The resolution included a map (enclosed) depicting the proposed rezoning area, which includes your client's properly. The boundaries of the rezoning area align with the urban renewal areas, established in the 1990s, along Wadsworth Boulevard. We have reviewed your client's reasons for opposition to the proposed rezoning to MU-C. We are aware of the easements and covenants that encumber your client's property and the limitations that this creates for new development on the property. However, this situation is also true under your client's current zoning, Commercial-One (C-l), due to an architectural overlay that was put in place with the adoption of the Architectural and Streetscape Design Manual (ASDM) in 2007. Your client's property is within the Contemporary Overlay, which has build-to requirements very similar to those in the MU-C zone district, as well as architectural requirements that, in some cases, are less flexible than those in the MU-C zoning. While the easements and covenants that encumber your client's property pose some challenges to redevelopment of the site, they in no way preclude new development that would comply with the proposed MU-C zoning. It is possible that the various property owners subject to the restrictions would agree to amending the restrictions. It is also possible that, in the future, one owner would gain control of all of the properties and have the ability to amend or terminate the restrictions. The document that establishes the easements and covenants is a private agreement that could change, that expires in 2023, and that is not directly related to the zoning of the site. Exhibit 3 www.ci.whtatridgt.co.us We understand your client's position that Wadsworth has traditionally been an auto-oriented street. We purposely developed the MU-C zone district to encourage a greater mix of uses and an increased emphasis on the pedestrian, while also recognizing the auto-oriented nature of this major arterial. For that reason, several car-focused uses such as auto repair (with no outdoor display) are allowed as conditional uses. This means that these uses are allowed, subject to an administrative review focused on site design in order to mitigate impacts on neighboring properties. We would also like to emphasize that the City's adopted plans for the area, including the Wadsworth Subarea Plan (2007) and the City's Comprehensive Plan, Envision Wheat Ridge (2009), call for the transformation of the Wadsworth area with higher-density, mixed use development. The intent of the rezoning is to help enable such changes over the coming decades. In response to your client's concern that the new zoning would discourage existing property owners from investing in their properties, there is language in the MU-C zoning that allows some flexibility for existing structures. For example, an existing building can expand up to 15 percent without having to meet the requirements of the code. Second, an existing building that is nonconforming due to design requirements in the code may be altered or expanded as long as the nonconformity is not made any worse. This means that a property owner could upgrade an existing fa9ade, for example, without having to meet the transparency requirements in the code. Overall, the proposed rezoning to MU-C is intended to be a win-win for the City and property owners. It increases the development options for properties through higher allowable densities, a wide range of permitted uses, reduced open space requirements, and flexible parking requirements. In addition, the MU-C zoning creates a streamlined, administrative review process for all new development proposals. I hope that this letter helps to clarify some of of the issues related to your client's concerns. Please do not hesitate to contact me or Kenneth Johnstone to discuss any of these points in further detail. 􀁳􀁳􀀺􀁾􀁾􀀠 􀁊􀁚􀁾􀂢􀀠 Sarah Showalter, AICP, LEED AP Planner II 􀁾􀀠􀁾􀀠... . • r . CIty of 􀁾􀁗􀁨􀁥􀁡􀁴􀁒􀁩􀀹􀁧􀁥􀀠 􀁾􀁏􀁍􀁍􀁕􀁎􀁬􀁬􀁙􀀠DEVELOPMENT City of Wheat Ridge Municipal Building 7500 W. 29th Ave. Wheat Ridge, CO 80033-8001 P: 303.235 .2846 F: 303.235.2857 Meeting Date: Attending Staff: Location of Meeting: Land Use Proposal: Attendees: NEIGHBORHOOD MEETING NOTES April 13,2011 Kenneth Johnstone, Community Development Director Sarah Showalter, Planner II Lauren Mikulak, Planner I City of Wheat Ridge Municipal Building 7500 W. 29th Avenue Wheat Ridge, CO 80033 City-initiated rezoning ofthe Wadsworth Corridor to Mixed UseCommercial (MU-C); proposed rezoning boundary is the area within the urban renewal area Jackie Ingenthrone Tom and Gay Anne Fey Al Buerger Jeff Sparkman Dave and Debbie Dowda Don Matoush Ana and Lynne Martineli David Gardenas Susan Peguero Linda Wolf Katie and John Field John Bever Dan Boise Chad Harr Todd Hammond F. Schiller Deanna Leind Lorraine Newmann Maria Nunez John Minshall Alice and Richard Doyle Scott Ohm Jerry Roach Jen Embree-Bever Rolly Sorrentino Margaret Schalt Exhibit 4 www.ci.wheatridge.co.us Existing Zoning: Neighborhood Commercial (N-C), Restricted Commercial (R-C), Commercial-One (C-I ), Commercial-Two (C-2), Planned Commercial Development (PCD) Comprehensive Plan: Mixed Use Town Center; Primary Commercial Corridor Wadsworth Subarea Plan: Medium to High Density Mixed Use Existing Site Conditions: The proposed area for rezoning encompasses over 60 properties along the Wadsworth corridor, roughly between W. 35th Avenue and W. 45th Avenue. The proposed rezoning boundaries follow the urban renewal boundaries for this area. The properties that compose the rezoning area consist of a wide range of commercial uses and all have a commercial zoning designation today (C-1, C-2, N-C, R-C or PCD). There are a few properties with residential uses and commercial zoning. Wadsworth Boulevard is a 5-lane commercial arterial, owned by the Colorado Department of Transportation (CDOT). Applicant/Owner Preliminary Proposal: The Wadsworth corridor, between W. 38th and W. 44th Avenues, is designated in the City's plans as a priority area for mixed use, medium-to high-density redevelopment. The Wadsworth Corridor Subarea Plan, adopted in 2007, designates this portion of the corridor for future medium-to high-density development with a mix of land uses. This vision was refined in the City's recently adopted Comprehensive Plan, Envision Wheat Ridge, which designates Wadsworth as a primary commercial corridor and calls for a mixed use town center between W. 38th and W. 44th Avenues. Envision Wheat Ridge identified this area of Wadsworth as one of five priority redevelopment areas and recommended the development of new mixed use zoning that could be utilized on Wadsworth, along with other priority redevelopment areas, to allow and encourage high-quality, mixed-use development. To this end, the City developed a mixed-use zoning ordinance that was adopted by City Council in September, 2010. One of the mixed use zone districts, Mixed Use-Commercial (MU-C), was specifically designed for major commercial arterials like Wadsworth. The zoning is intended to allow greater flexibility than the existing commercial zoning in the area (particularly by allowing residential uses), to ensure quality design through the incorporation of design standards, and to create a streamlined development review process for any new development under the MU-C zoning. In order to help implement the City's plans for Wadsworth and establish zoning that will allow for medium-and high-density mixed use development, City Council adopted a resolution on March 14, 2011 to pursue a comprehensive legislative rezoning of the Wadsworth corridor. The following is a summary of the neighborhood meeting: • Staff presented a 30-minute overview of the proposal. The presentation addressed the following topics: o Purpose of the neighborhood meeting o Overview of the current zoning o Overview of the proposed boundary and proposed zoning o History of the City's planning efforts along the corridor, including the Wadsworth 2 Subarea Plan and Envision Wheat Ridge o Overview of the Mixed Use-Commercial zone district, including: allowable uses, building height, and architectural standards o Overview of the rezoning process o Overview ofthe site development process (assuming MU-C zoning is approved), including the concept plan and site plan review procedures • Staff informed attendees of the anticipated Planning Commission and City Council public hearings. The hearings are required parts ofthe rezoning process at which members of the public will be able to comment on the proposal. Notification of the hearings will be posted on the City website and in the Transcript, but there will be no mailings to property owners. The following issues were discussed regarding the rezoning proposal: • Wadsworth is already very busy road, and the proposed mixed use zoning could attract additional traffic. What plans does the City have for widening Wadsworth Boulevard, so it can handle the additional traffic? Wadsworth Boulevard is planned to be upgraded to a 6-lane facility within a J 50-/00t right-of way envelope. Wadsworth is a state highway and is controlled by the Colorado Department of Transportation (CDOT). CDOT will be responsible for conducting environmental assessments and a public planning process to identify a final roadway design for the corridor. The City 's Department of Public Works is working with CDOT to secure funding for these processes, but it will likely be at least a couple of years before they begin. In the meantime, new development will be subject to the requirements of the Streetscape Design Manual which will help to improve the pedestrian environment along Wadsworth before and after the road is widened. • Are there currently any development proposals for the west side of Wadsworth between W. 38th and W. 35th Avenues (vacant land and the former GO Ford dealership)? No; no specific development proposals have been identifiedfor the site at this time. City Council has identified the property as a high priority redevelopment area and will be defining their vision for the site in the upcoming months. • Why is the southeast corner of Wadsworth and W. 38th Avenue not included within the boundary for the proposed rezoning? This corner includes a church and residential neighborhood. The area is not included in the rezoning because it is not part of the urban renewal area. It was probably excludedfrom the urban renewal area because it is a well-established area and with no finding of blight. • Will the intersection of W. 41 st Avenue and Wadsworth (by the elementary school) become a signalized intersection? This intersection was identified as a signalized intersection in the Wadsworth Subarea Plan, but CDOT has not taken any action to put a light at this location. The signal was proposed as a traifc engineering solution to create better traffic flow and even spacing between 38th, 4Ft, and 44t Avenues. Discussion of signal locations will be part of CDOT's planning process if or when Wadsworth is widened. • The vacant lot at W. 35th Avenue and Wadsworth (south of the former Ford dealership) used to be a running water wetlands, but it currently retains stagnant water. Does this standing water have to stay? To accommodate regional water flow and meet water detention requirements, it probably needs to remain. The water stagnancy may be a reflection of recent drought conditions. Future developers may reengineer the water detentionfacility to improve its function andflow. (Some discussion followed regarding unsuccessful attempts to drain this facility by developers in 3 the past.) • There are no sidewalks along Wadsworth from W. 35th to W. 38th Avenues. Are there any future plans to install sidewalks? The City wants to see sidewalks along Wadsworth from W 35th to W 46th Avenues, and we can require that sidewalks be installed as new development occurs along the corridor. Typically a right-of-way reservation will be required with new development to accommodate the future widening of Wadsworth. Based on the reservation, the City will estimate where developers can put sidewalks now so they remain intact even as the road is widened in the future. • How will the neighborhoods on the east and west sides of Wadsworth be connected, and will there be improved ways to cross Wadsworth as a pedestrian? Different options for crossing Wadsworth will be considered during CDOT's planning process for the roadway widening. Future crossings will probably continue to be at grade (as opposed to an elevated walkway), however there are improvements that can be considered to make the crossingfeel more safe. For example, medians would allow pedestrians to stop safely in the roadway and adjusted signals would allow more time for crossing. • Will the mixed use zoning allow six (6) story apartment buildings? It depends. The Mixed Use-Commercial zone district only allows six (6) story structures for mixed use buildings. For example, if the first floor contains commercial uses, an additional five (5) stories may include residential uses. Single use buildings in the MU-C district are only allowed up tofour (4) stories. For point of reference, the Commercial-One (C-1) zone district currently allows structures up to 50-feet in height. • If the mixed use zoning is approved, how do you prevent the construction ofthousands of rental apartments in six (6) story buildings? The zoning code does not distinguish between renter-occupied and owner-occupied residential units, and six (6) story structures would only be allowed for mixed use buildings. Based on market conditions and preliminary utility capacity studies, it is unlikely that the corridor will be able to support thousands of new residential units. That being said, there is the potential for several hundred new residential units, and the City is encouraging this type of development. New residential construction attracts more people to the corridor, supports business in the area, and provides more housing options for the City. For a variety of reasons, the City wants more people living and working along Wadsworth. • Will there be a new public library on Wadsworth? There is currently no proposalfor a new library on Wadsworth, although civic uses are allowed and encouraged under the mixed use zoning. • If the rezoning is approved and existing property owners want to make improvements to their property, will they be subject to the new architectural standards? The Community Development Department has met with many property owners along the corridor and recognizes the limitations of existing properties. In response, the mixed use code includes language that provides some relief for current structures that do not meet the architectural requirements in the code. If an existing structure is expanded by more than 15% of the gross floor area, the new standards will apply to the expansion, where practical. • The residential transition requirements address new mixed use development adjacent to single-and two-family uses. What are the setback requirements for mixed use development next to the Residential-Three (R-3) zone district (where there is multi-family residential)? Residential transition and upper story stepbacks are required where new mixed use development abuts residentially or agriculturally zoned lots that contain single-or two-family residential uses. These upper story stepbacks do not apply where new development is adjacent to properties zoned R-3, however there are other setbacks and buffers that will apply. For example, surface 4 parking lots on MU-C property are subject to landscape buffer requirements, and all other development is subject to a 5-/00t rear yard setback. • If the rezoning is approved, how soon can someone build and be subject to the mixed use requirements? The Wadsworth rezoning is expected to be approved by late summer, and the mixed use zone district would become effective 15 days after City Council approval. • When the property at 44th and Wadsworth was rezoned, wasn't there discussion of including County buildings? Is Jefferson County still expected to build on that site? The Urban Renewal Authority has been negotiating with potential end users of this site. While Jefferson County had indicated significant interest in locating services at 44th and Wadsworth, they have since withdrawnfrom the site. A recent change in County Commissioners has resulted in a review of the County's capital investment budget. At this point there are no plans for a County building on the site. • Didn't City Council approve $1 million for infrastructure at 44th and Wadsworth to attract the County to the site? City Council did authorize money to supplement the Urban Renewal Authority in the short-term for infrastructure costs. They are using some of that money now for demolition of the existing structures, and will continue to use the funds for infrastructure regardless of whether the County is an end user on the site. • Within the proposed boundary are you planning to rezone only the C-l properties to MU-C? No, the proposal includes rezoning all parcels within the boundary to Mixed Use-Commercial. This includes properties that are currently zoned Neighborhood Commercial (N-C), Restricted Commercial (R-C), Commercial-One (C-l), Commercial-Two (C-2), and Planned Commercial Development (PCD). • What is the timeline for this rezoning process? Although it is not a required step in the rezoning process, our next action will be a study session with City Council. After the study session there will be a public hearing before Planning Commission, followed by a public hearing before City Council. The City Council public hearing is expected to take place sometime in mid to late summer. 5 TO: FROM: DATE: MUR.RAY DAHL Ku E:GH E:NMIi:15TIi:R. RIi:NAUD LLP Mayor and Council Gerald E. Dahl April 5, 2011 MEMORANDUM RE: Appeals from Decisions of the Public Works Director At a study session in January, Council directed me to draft an ordinance governing appeals from final written decisions of the Public Works Director. The attached ordinance creates a right of appeal from ten (10) different kinds of decisions the Public Works Director makes under Code Chapters 5 (Building Regulations), 21 (Streets & Sidewalks) and 26 (Zoning). These subjects concern private development. Excluded from this list are actions the Public Works Director takes on public projects and supervision of staff within the Department; for example: maintenance and road work. The procedure is initiated by a written appeal to the City Council, which must be filed within 10 days of the decision being appealed. The Council must hear the appeal at its next regularly scheduled business meeting, but not earlier than 5 days from the date of the appeal. This timeline is modeled on that used for the recently adopted ordinance governing appeals to the Building Code Advisory Board. ATTACHEMNTS: 1. Draft ordinance CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER ___ _ Council Bill No. ---Ordinance No. ----Series 2011 TITLE: AN ORDINANCE CONCERNING APPEALS FROM DECISIONS OF THE DIRECTOR OF PUBLIC WORKS WHEREAS, the City of Wheat Ridge ("City") is a home rule municipality having all powers conferred by Article XX of the Colorado Constitution; and WHEREAS, in the exercise of these powers, the City Council has adopted Chapter 2 of the Wheat Ridge Code of Laws ("Code") concerning administration, and including Section 2-31 concerning the duties of the Director of Public Works; and WHEREAS, the City Council wishes to provide for a right of appeal from certain decisions of the Director of Public Works. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Section 2-31 of the Wheat Ridge Code of Laws is hereby amended by consolidating the existing fifteen (15) numbered subsections thereof under a new subsection (a), and by enacting a new subsection (b) to read as follows: ((b) The final written decision of the public works director on the following matters may be appealed to the city council: (1) Require public improvements at building permit; Code Sec. 5-45 (2) Administer the Stormwater Quality Ordinance; Code Sec. 20-4 (3) Enforce violations of the street ROW permit ordinance; Code Sec. 21-4 (4) Require replacement of defective work constructed without a ROW construction permit; (5) Suspend or revoke ROW contractor's license; Code Sec. 21-22 (6) Require repair or replacement of defective work in ROW; Code Sec. 21-30 (7) Revoke ROW construction permits; Code Sec. 21-55 (8) Issue ROW use permits; Code Sec. 21-101 (9) Issue street access permits; Code Sec. 21-181 (10) Administer the Floodplain Ordinance; Code Sec. 26-80 The appellant shall file such appeal with the city clerk within ten (10) days of the decision being appealed, on forms provided by the city clerk for this purpose. The city council shall conduct a hearing and render a decision on the appeal at its next regularly scheduled business meeting but not earlier than five (5) days from the Attachment 1 date of submission of the appeal. The appellant and the public works director shall have the opportunity to appear, testify, present and cross examine witnesses and evidence. General public testimony is not permitted. Decisions of the city council on the appeal shall be made by a majority of a quorum present. Section 2. Severability, Conflicting Ordinances Repealed. If any section, subsection or clause of this Ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected thereby. All other ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. Section 3. Effective Date. This Ordinance shall take effect fifteen (15) days after final publication, as provided by Section 5.11 of the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of _ to _ on this __ day of , 2011, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge, and Public Hearing and consideration on final passage set for , 2011 at 7:00 p.m., in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of to , this day of , 2011. SIGNED by the Mayor on this __ day of _____ , 2011. ATTEST: Michael Snow, City Clerk First Publication: Second Publication: Wheat Ridge Transcript Effective Date: Jerry DiTullio, Mayor Approved as to Form Gerald E. Dahl, City Attorney TO: FROM: DATE: RE: MURRAY DAHL KUE:GHE:NME:ISTE:R RE:NAUO LLP Mayor and Council MEMORANDUM Gerald Dahl, City Attorney April 26, 2011 Regulation of Massage The purpose of this memorandum is to summarize for the Council the current manner in which the City regulates massage parlors, massage therapy centers and the individual practice of massage therapy, to recommend certain changes, and to request Council direction for future regulation. I have been assisted in the preparation of this memorandum by Chief Dan Brennan, Sales Tax Supervisor Kathy Franklin, Lt. Dave Pickett, and Community Development Director Ken Johnstone. The City presently has three (3) sets of regulations governing these topics, most recently amended in 2006: Massage Services: Code Sections 11-230 through 11-240 These Code sections regulate massage therapy centers and massage therapists employed by these centers, who have specific training (500 hours of training in massage therapy). A massage therapy center license or a massage therapy license is required in addition to a City business license. Persons operating massage therapy centers and massage therapists are considered general retail services, and are not subject to any particular distance or spacing requirements under the City's zoning code. These uses are shown as permitted uses in all of the City's commercial districts as well as the City's industrial districts. Massage Therapy Practice: Code Sections 16-240 through 16-250 Article XI of Chapter 16 of the Code of Laws addresses individual massage therapists not operating out of a massage therapy center, who have received the 500 hours of training in massage therapy. A City business license is required. No separation or distancing requirements are applied, and these uses may take place in any of the City's commercial or industrial districts. Massage Parlors: Code Sections 16-223 through 16-235 Massage parlors are regulated by Article X of Chapter 16. The primary distinction between a massage parlor and a massage therapy center or massage therapist is that the persons giving massage are not required to have the 500 hours of training, and are therefore not providing "massage therapy," as defined in Code Section 16-225. A City business license is required for operation. License fees and renewals are $50 under C.RS. 12-48.5-101, there is no state "massage parlor license;" instead, it is clear that local governments are designated as the local licensing authority for that purpose, C.RS. 12-48.5-105. Unique to the massage parlor operation is the restriction that it may not be granted within 750 feet of a church, day care center, school, public park, residential district or the property line of a lot devoted to residential use. Further, no massage parlor may be operated within 1000 feet of another massage parlor or any sexually oriented business licensed under Chapter 3 of the Code of Laws. Presently, the Community Development Department does not measure the spacing requirements for massage parlors, as those appear in Chapter 16. "Massage Parlors" are not specifically listed in the Chapter 26 zone district use chart, Code 26-204, although they could be considered similar to massage therapy centers. If so, they are permitted uses in all commercial and industrial districts. State Statutory Requirements C.RS. 12-35.5-118, enacted in 2008, prohibits local governments from regulating the "practice or profession of massage therapy." C.RS. 12-48.5-101, et seq. does give local governments the authority to regulate massage parlors, and was not amended in 2008 when 12-35.5-118 was adopted, so the two have to be read together, despite the fact that there is also a (limited) definition of massage in 12-48.5-103. Because of C.RS. 12-35.5-118, the City should repeal all its sections on massage except the massage parlor code, Article X of Chapter 16 and the references in Chapter 26 that allow massage therapists and massage therapy centers in certain zone districts and as a home occupation. The Council should also decide whether to apply more stringent requirements to those parlors, as the statute allows. C.RS. 12-48.5-118. The state's "Massage Parlor Code" at C.RS. 12-48.5-101, et seq. requires that individuals providing massage or staff who work in massage parlors must apply to the local licensing authority [in this case, the City] for a local license. No state license is required. The statute specifically provides that local governments may enact ordinances and resolutions providing more stringent standards for such operations. The statute does not permit local governments to completely prohibit the operation of massage parlors unless approved by local voters at an election. CRS 12-48.5-117. -2- Options for Council Action Massage parlors are more stringently regulated with respect to their distance from churches, schools, residential uses and other massage parlors: Code 16-234. The City does not have a legal basis to refuse to issue massage parlor licenses under Chapter 16 Article X and the parallel state statute, C.RS. 12-48.5-101, on the basis that the persons operating these centers have not received 500 hours of instruction; that is simply not required by statute or the City's Code as at present. In order to bring the City into compliance with the state statute: • The Council should repeal Code Sections 11-230 through 11-240, and 16-240 through 16-250, all of which deal with "legitimate" massage therapy practice, and which is now fully regulated only by state statute. These massage operation uses will still be required to obtain the standard City business license. • Because massage parlors are permitted by state statue, the City must begin processing massage parlor applications under the present Article X of Chapter 16, which does not require 500 hours of instruction. The distance and spacing requirements of Chapter 16 will continue to apply. • Council should determine what agency or department within the City should serve as the "local licensing authority" for massage parlor licenses, as required by the state statute, C.RS. 12-48.5-101 et seq. Under the statute, this is the City Council, unless the Council designates another body or department. We recommend an administrative staff, as was chosen for medical marijuana licenses. • Include under Section 16-226, Definitions, a reference to C.RS. 12-48.5-105(4) requiring licensing of individuals involved in massage therapy, i.e. "Every applicant, licensee, or agent or employee of said applicant or licensee shall, prior to commencing work in or upon the licensed premises, obtain an identity card from the law enforcement agency within the licensing jurisdiction in a form prescribed by the local licensing authority and shall carry said identity card at all times in or upon the licensed premises." • The definitions in Section 16-226 should be expanded to include definitions for Conspicuous Place, and Massage since we are removing the definition of massage therapy. The Council should also consider the following options with respect to massage parlors: • Since the state statute allows local governments to impose more stringent requirements upon massage parlors than contained in the statute, amend Chapter 11, Article X to impose additional restrictions, which could include one or more of the following: -3- o Require standard clothing for all employees [similar to language in the Code sections on sexually-oriented uses, requiring that defined portions of the body be fully and opaquely covered] o Require a direct line of sight from a (staffed) manager's station to all locations where massage is given. o Provide for a right of entry to authorized City officials during regular business hours for the purpose of monitoring compliance with the Code and state statutory standards applicable to massage parlors. • Amend the zoning code to specifically address massage parlors as permitted uses in specified zone districts. Consider restricting massage parlors only to certain zone districts, as is currently done for sexually-oriented businesses (industrial zone districts only). • Encourage the submission of a petition under CRS 12-48.5-117 submitting a question to the registered electors prohibiting the operation of massage parlors within the City. A citizen petition is required to do this; the statute does not permit prohibition merely by action of the City Council. -4-