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Home My WebLink AboutYarrow Gardens2018086886 9/21 /2018 9:57 AM PGS 7 $43.00 DF $0.00 Electronically Recorded Jefferson County, CC Faye Griffin, Clerk and Recorder TD1060 A DECLARATION OF COVENANT AND RESTRICTION THIS DECLARATION OF COVENANT AND RESTRICTION (this "Covenant") is made and entered into as of the Ll! day of r'2tZIT<by and among the CITY OF WHEAT RIDGE, COLORADO, home rule municipal corporation (the "City"), and TH YARROW GARDENS LLC, a Colorado limited liability company (the "Developer"), together referred to as 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 "Property"), commonly known as Yarrow Gardens. 2. The Developer intends to develop the Property as a townhome development, subject to that certain Outline Development Plan and that certain Specific Development Plan for the Project titled Yarrow Gardens recorded with the Jefferson County Clerk and Recorder under reception numbers 2018059055 and 201809056, respectively, as well as an administratively approved site plan titled Yarrow Gardens Site Plan. 3. The City and Developer executed a Subdivision Improvement Agreement, dated -6hnker mil. 961k, and recorded with the Jefferson County Clerk and Recorder under eception No. (the "SIX). 4. The SIA outlines the obligations of the Developer relative the construction of Public Improvements and other on -site horizontal infrastructure, and outlines the required timing and phasing of those improvements in relation to the issuance of permits and certificates of occupancy. The SIA requires the Developer to execute and record this Covenant. 5. Pursuant to the SIA, the obligations of the Developer are proposed to be completed in two (2) phases —Phase 1 and Phase 2—as shown in Exhibit B. 6. A majority of the Project is not developable unless and until the Public Improvements and other on -site horizontal infrastructure is installed, and it is the City's obligation to protect future lot owners from purchasing undevelopable lots. 7. The Parties agree that such protection shall take the form of this Covenant, execution and recording of which shall take place simultaneously with recording of the SIA. 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 1. The entirety of the Property is hereby declared to be the "Burdened Property." 2. Imposition of Restriction. The Developer and its heirs, successors and assigns, hereby covenant and agree that the Burdened Property shall be subject to the following restriction: No sale of any individual lot or any collection of individual lots which do not equal the entirety of the Property as described in Exhibit A may occur until such time as the Public Improvements and on -site horizontal improvements for the respective Phase and as required by the SIA are complete and accepted by the City. Notwithstanding anything to the contrary contained in this Covenant, Developer and any successor -in -title to all or any portion of the Property may convey individual lots and collections of individual lots to homebuilders; provided, however, no such homebuilder shall convey any lot to a homebuyer until such time as the Public Improvements and on -site horizontal improvements for the respective Phase and as required by the SIA are complete and accepted by the City. 3. Burdens Run with Land. Developer 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 Developer 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 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. The burden of this Covenant shall terminate for each Phase upon the City's acceptance of the Public Improvements and on -site horizontal infrastructure required for each Phase pursuant to the SIA, whereupon the City shall execute and record a release of this Covenant upon written request from Developer or any successor in interest. 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. 2 9. Recording. This Covenant shall be recorded simultaneously with the SIA 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. ATTEST: . rk Gerald Dahl, City Attorney CITY OF WHEAT RIDGE, COLORADO By: 10/y ll1 Bud Starker, Mayor "WHEAT SEAL 3 DEVELOPER TH YARROW GARDENS LLC, a Colorado limited liability company By: NT BUILDERS LLC, a Colorado limited liability company, Its Manager 1 By. Name: Title: STATE OF COLORADO ) SS. COUNTY OF NAV2I" } The foregoing instrument was acknowledged before me this i. day of 201, by UU CCtG , as Manager of NT BUILDERS LLC, a Colorado limited liability company, as Manager of TH YARROW GARDENS LLC, a Colorado limited liability company. (SEAL) JOHNoT GP bCcA III state of Colorado 929 Witness m hand and official seal. Notaryl�#tzot7aa01-17 y M CommissiorrEx ires01-17-202T My commission expires: l v d 7 -a/ Ck '- rk Notary ublic 4 EXHIBIT A Legal Description of the Property YARROW GARDENS FILING NO. 1, COUNTY OF JEFFERSON, STATE OF COLORADO and YARROW GARDENS FILING NO. 2, COUNTY OF JEFFERSON, STATE OF COLORADO 5 EXHIBIT B Phasing Plan for Public and On -Site Improvements (see attached)