HomeMy WebLinkAbout44th & Kipling1111111 III II I II I I I I I ,1I 11 R S48.00
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2021048290
03/29/2021 11:11:05 AM 8 Page(s)
JEFFERSON COUNTY, Colorado
DECLARATION OF COVENANT AND RESTRICTION
THIS DECLARATION �OF COVENANT AND RESTRICTION (this "Covenant") is made � and entered into as of the day of C't arcl , 2021 by and among the CITY OF
WHEAT RIDGE, COLORADO, a home rule municipal corporation (the "City") and 4600 Kipling,
LLC, a Colorado limited liability company, (the "Owner"), together referred to as each a "Party'
and collectively the "Parties."
RECITALS
1. The Owner is the owner of certain real property located in the City of Wheat Ridge,
which is more particularly described in Exhibit A and made a part hereof (the "Property').
2. The Owner intends to develop the Property as a mixed -use development (the
"Project").
3. On January 29, 2021, the Wheat Ridge Community Development Director
approved a Concept Plan for the Project titled Concept Plan for Kipling Street & 441h Avenue. A
copy of the Concept Plan is recorded with the Jefferson County Clerk and Recorder under
Reception No. �2OalOy$2%q (the "Concept Plan") and attached hereto as Exhibit B.
4. The Concept Plan describes the proposed character of the Project and
contemplates the inclusion of drive-through/drive-up uses.
5. Section 26-1111.0 of the Wheat Ridge Code of Laws (the "Code") provides for
separation requirements between drive-through/drive-up uses, but states that such separation
requirements do not apply to any mixed -use development under an approved concept plan.
6. Approval of the Concept Plan was contingent upon recordation of this Covenant
placing certain restrictions upon the future use of the Property in the event a drive-through/drive-
up use is developed.
7. The Parties agree that such restrictions shall take the form of this Covenant,
execution and recording of which shall take place simultaneously with recording of the Concept
Plan.
NOW, THEREFORE in consideration of the above recitals, which are fully incorporated
herein by this reference, the delivery, receipt and sufficiency of which are acknowledged, the
Parties agree as follows:
COVENANT AND RESTRICTION
The entirety of the Property is hereby declared to be the "Burdened Property."
2. Imposition of Restriction. The Owner for themselves and their heirs, successors
and assigns, hereby covenant and agree that the Burdened Property shall be subject to the
following restriction:
To the extent that drive -through and/or drive -up uses are developed on the
Burdened Property which would otherwise be in conflict with the separation
DEN-132721-2
requirements of Section 26-1111.0 of the Code, then subsequent development
shall fulfill the requirements for "mixed use development" of the Burdened
Property as defined in Section 26-1119 of the Code, compliance with which
shall be determined at the sole discretion of the Community Development
Director.
• Drive -through and/or drive -up uses developed on the Burdened Property shall
be limited to two (2) in number.
3. Burdens Run with Land. Owner declares that this Covenant shall pass with and
burden each and every tract, lot, and parcel of land within and which is a part of the Burdened
Property, and shall apply to and be binding upon the heirs, successors in interest and assigns of
the Owner any owner hereafter of said tracts, lots and parcels, and shall run with the land at law
and in equity. Each person acquiring any interest in the Burdened Property shall be deemed for
all purposes to have assented and agreed, as an essential condition of any conveyance to it, to
the provisions of this Covenant, to have agreed to comply with this Covenant and to have waived
any right to challenge or contest the provisions hereof except as permitted herein. The benefits
and burdens of this Covenant are acknowledged by the Parties as touching and concerning the
Owner Property. They shall be perpetual unless released by written instrument executed by the
City, acting in its sole discretion upon a written request by the Owner or any successor.
4. Termination. This Covenant shall terminate upon the earlier of. (a) December 31,
2050 in the event no drive -through or drive -up use is developed on the Burdened Property prior
to such date; or (b) the date that the City agrees to release the Covenant as permitted by
Paragraph 3 above.
5. Enforcement. The benefited party herein shall be the City. The rights, duties and
obligations contained in this Covenant may be enforced by the filing of an appropriate action in
law or in equity in the District Court for Jefferson County, Colorado whose jurisdiction over this
Covenant is hereby acknowledged. Such action and remedies may include, but is not limited to
specific performance, mandatory injunction, damages, forfeiture or other relief. In the event of
any litigation under this Covenant, the court shall award reasonable attorneys' fees and costs to
the prevailing party.
6. Governing Law. This Covenant shall be governed and construed in accordance
with the laws of the state of Colorado. Venue and jurisdiction for any action arising under this
Covenant shall be property and exclusive in the District Court for Jefferson County, Colorado.
7. Entire Agreement. This Covenant shall constitute the whole agreement between
the Parties on the subjects contained herein, and no additional or different oral representation,
promise or agreement shall be binding on the Parties with respect to the subject matter of this
Covenant.
8. No Waiver. No provision of this Covenant may be waived except by written
instrument signed by the Party to be charged with such waiver. Failure of any Party to this
Covenant to enforce any provision of this Covenant shall not constitute a waiver of such provision,
and no waiver by any Party to this Covenant, or of any provision of this Covenant, shall be
constitute a waiver of any other provision or of the same provision.
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9. Recording. This Covenant shall be recorded simultaneously with the Concept
Plan for the Property and shall be filed for record with the Office of the Jefferson County Clerk &
Recorder. q
IN WITNESS WHEREOF, the Parties have executed this Covenant on the dates set forth J,
below, intending that it be valid and effective from and after the date of such execution and
recording.
ATTEST:
Stephen Kirkpatrick, City Clerk
�, /
XV—
Is �
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CITY OF WHEAT RIDGE, COLORADO
By:
Bud Starker, ayo
4600 Kipling, LLC,
a Colorado limited liability company
9
By.
Title:
A notary public or other officer completing this certificate
verifies only the identity of the Individual who signed the
STATE OF ►�� + nJ tom. ) document to which this certificate is attached, and not
ss. the truthfulness, accuracy, or validity of that document.
COUNTY OF
5.J ,._t
The foregoing instrument was acknowledged before me this 2- day of M fq� }1,
20AI by I-W y D C, ANAs-t-As \ , as VV'e'"C.
of 4CCrj
ry SUZY WERTS
Notary Public - California
Los Angeles County
Commission # 2344718
(my Comm. Expires Feb 1, 2025
im-, -.—
Notary Public
My commission expires: 2 1 1 / 2-02 S
-3-
EXHIBIT A
LEGAL DESCRIPTION OF THE OWNER PROPERTY A
PARCEL L
THAT PORTION OF THE SOUTHWEST % OF THE NORTHWEST Y4 OF THE
NORTHWEST % OF SECTION 22, TOWNSHIP 3 SOUTH RANGE 69 WEST OF THE
6T" P.M.. DESCRIBED AS FOLLOWS. -
THE WEST 330.57 FEET OF THE SOUTH 150 FEET OF THE NORTH 594 FEET,
EXCEPT THAT PORTION CONVEYED TO THE DEPARTMENT OF HIGHWAYS,
STATE OF COLORADO IN DEED RECORDED AUGUST 11, 1969 IN BOOK 2124 AT
PAGE 188, AND EXCEPT ANY PORTION DESCRIBED IN THE DEED RECORDED
DECEMBER 11, 1986 AT RECEPTION NO. 86153163 COUNTY OF JEFFERSON,
STATE OF COLORADO.
PARCEL II:
THAT PART OF THE NORTHWEST % OF SECTION 22, TOWNSHIP 3 SOUTH,
RANGE 69 WEST OF THE 6T" P.M., DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF SECTION 22, TOWNSHIP 3
SOUTH, RANGE 69 WEST OF THE 6T" P.M.; THENCE SOUTH 00°09' WEST, ALONG
THE WEST LINE OF SAID SECTION 22, 660.00 FEET; THENCE NORTH 89055'
EAST, 45.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE 89°55' WEST,
285.57 FEET; THENCE NORTH 00°09' EAST, 444.00 FEET TO THE TRUE POINT OF
BEGINNING, COUNTY OF JEFFERSON, STATE OF COLORADO.
PARCEL III:
LOT 1, BLOCK 1, CHADO SUBDIVISION, RECORDED MARCH 1, 1991 AT
RECEPTION NO. 91016826, COUNTY OF JEFFERSON, STATE OF COLORADO.
PARCEL IV:
BEGINNING AT THE SOUTHWEST CORNER OF TRACT 13, JUCHEM'S GARDEN
PLACE: THENCE NORTH ALONG THE WEST LINE OF SAID TRACT 16,36 FEET;
THENCE EAST ON LINE PARALLEL TO SOUTH LINE OF TRACT 13, JUCHEM'S
GARDEN PLACE, TO CENTER LINE OF THIRD STREET; THENCE SOUTH ALONG
CENTER LINE OF THIRD STREET 66 FEET TO CENTER LINE OF FLORA STREET;
THENCE WEST ALONG CENTER LINE OF FLORA STREET TO A POINT WHICH IS
30 FEET SOUTH OF THE SOUTHWEST CORNER OF SAID TRACT 13; THENCE
NORTH OF SOUTHWEST CORNER OF SAID TRACT 13, WHICH IS THE PLACE OF
BEGINNING INTENDING TO CONVEY THE SOUTH 36 FEET OF TRACT 13,
JUCHEM'S GARDEN PLACE, TOGETHER WITH Y2 OF THE VACATED STREETS
ADJOINING THERTO, ALL SITUATE IN SECTION 22, TOWNSHIP 3 SOUTH, RANGE
69 WEST, EXCEPT THAT PORTION OF THE ABOVE DESCRIBED PROPERTY
DESCRIBED IN DEED RECORDED IN BOOK 1175 AT PAGE 522, AND EXCEPT
THAT PORTION OF THE ABOVE DESCRIBED PROPERTY DESCRIBED IN DEED
-4-
RECORDED UNDER RECEPTION NO. 88080612, AND EXCEPT THAT PORTION OF
THE ABOVED DESCRIBED PROPERRTY DESCRIBED IN DEED RECORDED
SEPTEMBER 9, 1969 IN BOOK 2130 AT PAGE 552.
FBI
EXHIBIT B
CONCEPT PLAN FOR KIPLING STREET & 44th AVENUE
[see attached]
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