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Home My WebLink AboutCorners at WRu r�mn iiiriiiim o o��2017012079 01/31/2017 02:29:35 PM 7 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 JAAM&A , 2017 by and among the CITY OF WHEAT RIDGE, COLORADO, a home rule municip I corporation (the "City"), the Wheat Ridge Urban Renewal Authority dlbla Renewal Wheat Ridge, a Colorado urban renewal authority ("RWR"), and the QUADRANT WHEAT RIDGE CORNERS, LLC, a Missouri limited liability company (the "Developer"), together referred to as each a "Party" and collectively the "Parties." RECITALS 1. The Developer 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 "Developer Property"). In addition, the Developer is party to that certain Purchase and Sale Agreement dated January 3, 2017, (the "Purchase Agreement") with RWR to purchase from RWR the fee interest in certain real property located in the City of Wheat Ridge, which is more particularly described in Exhibit B and made a part hereof (the "RWR Property" and together with the Developer Property, collectively, the "Property"). 2. The Parties intend that the conveyance of the RWR Property to Developer shall occur following RWR obtaining a no further action letter from the Colorado Department of Public Health and Environment as more particularly set forth in the Purchase Agreement. 3. The Developer intends to develop the Property as a mixed use development to be known as The Corners at Wheat Ridge (the "Project"). 4. On JAnuan 26 , the Wheat Ridge Community Development Director approved a Concept Plan for the Project titled The Corners at Wheat Ridge Concept Plan. A copy of the Concept Plan is recorded with the Jefferson County Clerk and Recorder under Reception No. p/`7Q1,V (the "Concept Plan") and attached hereto as Exhibit C_ 5. The Concept Plan describes the proposed character of the Project and contemplates the inclusion of drive-through/drive-up uses, such as banks or eating establishments. 6. 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. 7. 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. 8. 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: DEN-132721 COVENANT AND RESTRICTION 1. The entirety of the Property is hereby declared to be the `Burdened Property." 2. Imposition of Restriction. The Developer and RWR 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 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. 3. Burdens Run with Land. Developer and RWR declare 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 Developer and RWR and 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 Developer Property and RWR Property. They shall be perpetual unless released by written instrument executed by the City, acting in its sole but reasonable discretion upon a written request by the Developer 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. -2- DEN-132721 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 3 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. 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. IN WITNESS WHEREOF, the Parties have executed this Covenant on the dates set forth below, intending that it be valid and effective from and after the date of such execution and recording. �W O U SE ATTES 'Cott nelle Shaver, City Clerk APP O XD F Geral Dahl, City Attorney A"I T: "�Kl ou � Secretary to the Authority CITY OF WHEAT RIDGE, COLORADO By: WHEAT RIDGE URBAN RENEWAL AUTHORITY By: Tim Rogers, Chair -3- DEN-132721-2 QUADRANT WHEAT RIDGE CORNERS, LLC, a Missori imitedlability company In R. Otto Maly, M STATE OF ) ss. COUNTY OF The foregoing instrument was acknowledged before me thiZo'da of January, 2017, by R. Otto Maly, as Manager of Quadrant Wheat Ridge Corners, LLC, a Missouri limited liability company. Notary Public My commission expires, FDEBRA E. BARTON blic — Notary Sea OF MISSOURI d for Boone County n Expires: 3,26 2017 #13430605 -4- DEN-132721-3 EXHIBIT A LEGAL DESCRIPTION OF THE DEVELOPER PROPERTY LOT 1, LOT 3, LOT 4, AND LOT 5; THE CORNERS FILING NO. 1; COUNTY OF JEFFERSON; STATE OF COLORADO -5- DrN-132721 EXHIBIT B LEGAL DESCRIPTION OF THE RWR PROPERTY ze LOT 2, THE CORNERS FILING NO. 1, COUNTY OF JEFFERSON, STATE OF COLORADO -6- DEN-132721 EXHIBIT C THE CORNERS AT WHEAT RIDGE CONCEPT PLAN q [see attached] See docuiott recoyziM Ca kectptyw f4o. AYZQlao7 DEN-132721