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HomeMy WebLinkAbout07964Reception 1794891 02/03/2009 ORDINANCE NO. 7964 AN ORDINANCE APPROVING A SPECIAL AREA PLAN FOR PIEDMONT PARK ll. WHEREAS, a request for a Special Area Plan for Piedmont Park II, has been submitted to the Planning and Zoning Commission for approval pursuant to Section 17- 4-29 of the Pueblo Municipal Code, and WHEREAS, the Planning and Zoning Commission after a public hearing found and determined the objectives and requirements of said Section 17 -4 -29 can and will be met, and WHEREAS, the Planning and Zoning Commission has recommended the approval of the Special Area Plan for Piedmont Park, II, that: NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, SECTION 1. The Special Area Plan for: A resubdivision of Lot 3, Piedmont Park located in the southeast quarter of Section 13, Township 20 South, Range 65 West of the 6 Principal Meridian, County of Pueblo, State of Colorado. Containing 1.998 acres, more or less. attached hereto, is hereby approved. SECTION 2. This Ordinance shall become effective immediately upon final passage and approval INTRODUCED: January 12, 2009 c- S'+ BY: Randy Thurston ��` >� COUNCIL PERSON ,APPROVED: PRESIDENT OF CIT COUNCIL tJ ATTESTED BY:` x . C Y CLERK PASSED AND APPROVED: January 26, 2009 H40 - r _ <r or qx 30 i_1 c0.vm� r^' —1.11 xw [ 10 B[ r FLEANFLETTY Al ' - A,. IT N 89'28'08' E 5' W e, b Q AT. W� W m$ r s W p Z PROPOSED LOT 3A IAwxer rx ¢w zlAA AAEK Wl.I�[6n�. weYSMf. KK^ M iW AT 15 I III, MIT "" "I wmm�rmr LAI rcm __ - -T. - sas 1� Y TL SPECIAL AREA PLAN AE -. FOR PROPOSED PLAT OF PIEDMONT PARK 11, A SPECIAL AREA PLAN w w=ge. ^R q �f.,1w, ^ xsmm , . r ¢ ,,, A RESUBDIVISION OF LOT 3, PIEDMONT PARK ..m oes. LOCATED IN THE SOUTHEAST QUARTER OF SECTION 13, TOWNSHIP 20 SOUTH, RANGE 65 WEST OF AT THE 6TH PRINCIPAL MERIDIAN, COUNTY OF PUEBLO, STATE OF COLORADO _ .or<7, ,� PAGE 1 OF 1 H40 - r _ <r or qx 30 i_1 c0.vm� r^' —1.11 xw [ 10 B[ r FLEANFLETTY Al ' - A,. IT N 89'28'08' E 5' W e, b Q AT. W� W m$ r s W p Z PROPOSED LOT 3A IAwxer rx ¢w zlAA AAEK Wl.I�[6n�. weYSMf. KK^ M iW AT 15 I III, MIT "" "I wmm�rmr LAI rcm __ - -T. - sas 1� Y TL A � 4 V.I WI ILI Jyy ktt'xai[� MD 0� w[XO� rc —I Al- or .nwli'mar ix[ x m aam,uc¢. _1 AILLAITEALTEE. ILETATITTALLI, -I ".I— - 1; 21 A., I q Z; 0 wAr 11-1 .1 —1 rxu -,,,,- .., ­ PROPOSED I$ . b. LOT 30 +. , p AT 4 FIEL :C AT e E V � 0 A .,. . _. - oz us ess 3enain 8 88'28'3!' 1W ''.. E x+ 11 , ...n u I AT NS A � 4 V.I WI ILI Jyy ktt'xai[� MD 0� w[XO� rc —I Al- or .nwli'mar ix[ x m aam,uc¢. _1 AILLAITEALTEE. ILETATITTALLI, -I ".I— - 1; 21 A., I q Z; 0 wAr 11-1 .1 —1 rxu -,,,,- r- s,1 PROPOSED I$ . b. LOT 30 +. , p AT 4 FIEL :C AT e E V � 0 L A � 4 V.I WI ILI Jyy ktt'xai[� MD 0� w[XO� rc —I Al- or .nwli'mar ix[ x m aam,uc¢. _1 AILLAITEALTEE. ILETATITTALLI, -I ".I— - 1; 21 A., I q Z; 0 wAr 11-1 .1 —1 rxu -,,,,- r- s,1 A � 4 V.I WI ILI Jyy ktt'xai[� MD 0� w[XO� rc —I Al- or .nwli'mar ix[ x m aam,uc¢. _1 AILLAITEALTEE. ILETATITTALLI, -I ".I— - 1; 21 A., I q Z; 0 wAr 11-1 .1 —1 rxu Ors{ - i ci b [: E:) � � D Background Paper for Proposed ORDINANCE DATE: JANUARY 12, 2009 AGENDA ITEM # 1 9 C'b ), P1 ej vr\ONA 1 1 I�O DEPARTMENT: PLANNING AND COMMUNITY DEVELOPMENT JERRY M. PACHECO, DIRECTOR TITLE AN ORDINANCE APPROVING A SPECIAL AREA PLAN FOR PIEDMONT PARK II. ISSUE Shall City Council approve the Special Area Plan to decrease the minimum lot width for Lot 3B? RECOMMENDATION The Planning and Zoning Commission, at their December 10, 2008 regular meeting, voted 6 -0 to recommend approval. BACKGROUND The applicant proposes to resubdivide the Piedmont Park Subdivision in order to create two lots to facilitate commercial redevelopment. Jackalope Holdings III, LLC has constructed a restaurant on Lot 3A and plans to construct an additional commercial building on Lot 3B. Both lots are flag -lots, which provide right -of -way frontage for Lot 313 and 1 -25 adjacency for Lot 3A, so that a high -rise sign can be erected to advertise the restaurant. Due to the flag -lot configuration a Special Area Plan is necessary to reduce the required lot frontage for Lot 3B. Setbacks along the periphery of the development meet those required by the B -4 Zone District. The plan provides adequate access to transportation, interior circulation, parking, water supply; waste disposal, fire and police protection and other needed public facilities and services. FINANCIAL IMPACT None. Reception 1794892 02/03/2009 Recording requested by and when recorded mail to: Evan R. Lichtenfels 5150 E. Yale Circle Suite 400 Denver, CO 80222 SUPPLEMENTAL DECLARATION OF COVENANTS .THIS SUPPLEMENTAL DECLARATION is made as of the day of -N , 2008, by JACKALOPE HOLDINGS III, LLC, a Colorado limited liability company ( "Jac pe "). 1. Purpose of Declaration. Jackalope is the owner of certain real property located in the City of Pueblo, Colorado (the "City"), more particularly described as Lot 3, PIEDMONT PARK, County of Pueblo, State of Colorado (the "Property "). A final development plan for the Property (as approved by and on file with the City and as it may be amended in the future with the approval of the City, the "Development Plan ") requires that the Property be developed as an integrated project with interior driveways, parking areas, landscaped areas and water detention areas. Jackalope has executed this Declaration to establish appropriate reciprocal easements and covenants for use and maintenance of such driveways, parking areas, landscaped areas and detention areas, as well as certain other rights and obligations relating to the Property. 2. Definitions. Unless otherwise indicated, capitalized terms used in this Declaration shall have the meanings set forth below. (a) "Authorized Person" shall mean each Owner, the tenants, subtenants and concessionaires of any portion of the Property, and their respective customers, licensees, invitees, employees and agents. (b) "Common Areas" shall mean all portions of the Property as shown on Exhibit B which are now or hereafter made available from time to time by any Owner for the general use and convenience of Authorized Persons, such as parking areas, service areas, exits, entrances, sidewalks, exterior landscaping, exterior lighting, incidental and interior driveways, and similar areas, but shall not include buildings and loading areas. Common Areas shall also include any portions of the Property used or reserved for a special purpose in accordance with approval of development of the Property by the City, such as landscape buffers and Detention Areas. (c) "Detention Areas" shall mean the portions of the Property or off -site areas designated on the Development Plan for control or detention of water, if any. 100321 190 / 3 i 1794892 DEC C 02/03/2009 04:39:14 PM Page: 2 of 12 R 61.00 0 0.00 T 61.00 Gilbert Ortiz Clerk /Retarder, Pueblo County, Co ®III hY+' �Y�4it��l# ��i16' I�P1�4CF��I�44'1�14 °I�+��I��1 ®I III (d) "Environmental Laws" shall mean all present and future federal, state and local laws, ordinances, rules, regulations, decisions and other requirements of governmental authorities relating specifically to any Hazardous Material or generally to the environment. (e) "Hazardous Material" shall mean any material or substance which is defined as hazardous or toxic under any Environmental Law or which, because of toxicity, corrosivity, reactivity, ignitability, carcinogenicity, magnification or concentration within biologic chains, presents a demonstrated threat to biologic processes when discharged into the environment. (f) "Master Covenants" shall mean the Declaration of Easements and Restrictive Covenants which was recorded April 27, 2008, under Reception No. 1765719 in the real property records of Pueblo County, Colorado. (g) "Occupant" shall mean the Owner of a Parcel and any other person who owns or is in exclusive legal possession of all or any portion of a Parcel or any separately demised portion of the improvements on any Parcel. (h) "Owner" shall mean each person or entity which owns fee simple title to a Parcel, including Jackalope. (i) "Parcel" shall mean each separately owned portion of the Property, including without limitation Lot 3A and Lot 3B as shown on the proposed replat of the Property as Piedmont Park II (the "Replat," a copy of which is attached hereto as Exhibit A) or the corresponding lots of the final replat approved by the City. 3. Traffic and Use Easements. Jackalope hereby establishes and declares the following traffic easements over and across the Property (the "Traffic and Use Easements") for the benefit of each Parcel: (a) nonexclusive easements for the purpose of pedestrian traffic of Authorized Persons over such portions of the Property as may now or hereafter be improved and utilized as pedestrian walkways; (b) nonexclusive easements for the purpose of the driving and parking of motor vehicles by any Authorized Person on those portions of the Property which are improved now or in the future for such purposes (provided, however, that if any parking areas are marked as exclusive, takeout service, short term or other similar temporary use for a specific Tenant, those parking areas shall be for the exclusive benefit of the Authorized Person(s) visiting that Tenant's business; however, no more than two (2) parking spaces on any Parcel may be so marked) and (c) nonexclusive easements over such portions of the Property as may now or hereafter be improved and utilized as driveways and parking areas for the purpose of furnishing access between the driveways and parking areas of any portion of the Property and the private driveways or public streets abutting the Property from time to time; and 00321190 / 31 1794892 DEC C 02/03/2009 04:39:14 PM Page: 3 of 12 R 61.00 D 0.00 T 61.00 Gilbert Ortiz Clerk /Recorder, Pueblo County, Cc ®III m1hVDINWI4M 10WICADYWI 14 11111 (d) nonexclusive easements for the purpose of constructing, renovating, repairing or remodeling the improvements on any Parcel, including grading, balancing and compaction of soils and other sitework materials, reconstruction, storage of supplies and materials, installation, replacement, modification, care and maintenance, provided that use of any other Parcel for such purposes is reasonably necessary, is diligently prosecuted in accordance with sound construction practices and does not unreasonably interfere with the use of such other Parcel or any improvements thereon. The Traffic and Use Easements shall include easements for the construction and use of structures and other improvements in accordance with the Development Plan to facilitate use of the Common Areas for the purposes set forth above. The Traffic and Use Easements are limited to purposes connected with or incidental to usual and customary use being made of any portion of the Property by an Authorized Person. No Owner or other Occupant shall cause or permit the construction of any barricade or other divider for the purpose of prohibiting or discouraging the free and uninterrupted flow of vehicular or pedestrian traffic over the Common Areas, except any temporary barriers as may be necessary or advisable from time to time to avoid the possibility of dedicating any such areas for public use or creating prescriptive rights therein. In no event shall any charges whatsoever be levied by any Owner or Occupant for use of any Common Areas. 4. Detention Areas; Utility and Service Easements. (a) Jackalope hereby establishes and declares the following easements for the benefit of each Parcel: (i) a nonexclusive easement over and across the Common Areas for the flow of a reasonable volume of surface water consistent with the master drainage plan for the Property, and (ii) a perpetual, non - exclusive easement on, over and across the Detention Areas for the purpose of collection and detention of surface water drainage from the Property. (b) Each Owner, and each mortgagee of any Parcel, shall cooperate in the granting of appropriate easements for the installation, repair and replacement of storm drains, sewers, utilities and other services necessary for the orderly development and operation of the Property ( "Utility Facilities "). Utility Facilities shall not be installed outside of dedicated easement areas and rights -of -way shown on any recorded plat unless the Owners and mortgagees of affected Parcels consent in writing to such installation. All installation of Utility Facilities shall be conducted at such times of the day, week and year as to minimize interference with normal operation of the Parcels. The Owner performing any such installation shall indemnify and defend the Owners and Occupants of affected Parcels against all claims and expense relating to such work. The Owner of a Parcel shall have the right, at any time and from time to time, to relocate any Utility Facilities located on such Owner's Parcel on the following conditions: (i) such right of relocation may be exercised only after 30 days' prior written notice of intention to relocate has been given to all Owners using the Utilities Facilities to be relocated; (ii) such relocation shall not unreasonably interrupt utility service to any building; (iii) such relocation shall not reduce or unreasonably impair the usefulness or function of the relocated Utility Facilities; (iv) all costs of such relocation shall be borne by the Owner relocating the Utility Facilities; [ 00321190 / 3 [ 1794892 DEC C 02/03/2009 04:39:14 PM Pa ge: 4 of 12 R 61.00 D 0.00 T 61.00 Gilbert Ortiz Clerk /Recorder Pueblo County, Co ■ III 1M1��P1+ fIY�' rl�Yt ��' ChJ !'��i�Lh�11;1�1�'I�ICI�v���i� ®Ilil and (v) any such relocation shall be approved by the City or any other governmental authority having jurisdiction. The Owner shall perform all such installation, maintenance and relocation of any Utility Facilities to the applicable standards of the City and shall, upon completion of such work, substantially restore the surface of the affected area to its condition prior to such work consistent with such standards. (c) The Owner of Lot 3A shall be required to maintain the Pole Sign that is located in the Detention Area ( "Pole Sign ") in accordance with all applicable laws and otherwise in good condition and repair at all times, and shall remain liable for all damages and injuries incurred as a result of the installation, maintenance and use of the Pole Sign. The Owner of Lot 3B shall be required to maintain the Monument Sign (as defined below) in accordance with all applicable laws and otherwise in good condition and repair at all times, and shall remain liable for all damages and injuries incurred as a result of the installation, maintenance and use of the Monument Sign. 5. Construction of Improvements. (a) Development of the Property requires that the Common Areas be improved for their intended purposes. The easements rights granted hereby shall commence upon construction of Common Areas on any Parcel by Jackalope, the Owner or an Occupant of such Parcel. All Common Areas shall be constructed to the applicable standards of the City. After initial construction, the Common Areas on any Parcel may not thereafter be materially altered without the prior approval of all of the Owners. (b) Each building constructed on the Property shall be of good quality, in full compliance with all applicable building code requirements and designed so that its exterior elevations, signs, color and other and harmonious with the other buildings requirements of the Development Plan. architectural elements will be compatible on the Property and consistent with all (c) The Owner of Lot 3B shall have the right to construct a free standing multi- tenant Monument Sign ( "Monument Sign ") in the location shown on the attached Exhibit B, subject to the prior approval of the Owner of Lot 3A as to the size and design of such Monument Sign, which approval shall not be unreasonably withheld, delayed or conditioned. The Owner of Lot 3B shall have the right to use the top panel location on all sides of the Monument Sign. In the event that the Owner of Lot 3B determines that it desires to construct the Monument Sign, it shall provide the Owner of Lot 3A with written notice thereof (together with the plans and specifications for the Monument Sign and such other documentation as the Owner of Lot 3A may reasonably request), and the Owner of Lot 3A shall thereafter have thirty (30) days within which to elect, in writing, to install a single sign panel on each side of the Monument Sign. In the event that the Owner of Lot 3A does not provide its written election to install such panels within such thirty (30) day period, then the Owner of Lot 3A shall be deemed to have elected to NOT be included on the Monument Sign. In the event that the Owner of Lot 3A elects to install a single sign panel on each side of the Monument Sign, then the Owner of Lot 3A and the Owner of Lot 3B shall each be responsible for their proportionate share of the cost of construction of the Monument Sign. Otherwise, the Owner of Lot 3B shall bear all costs associated with the 100321190131 1794892 DEC C 02/03/2009 04:39.14 PM Page: 5 of 12 R 61.00 D 0.00 T 51.00 Gilbert Ortiz Clerk /Recorder, Pueblo County, Cc installation, repair and maintenance of the Monument Sign. The design of the Monument Sign, and, if applicable, the location and size of the Owner of Lot 3A's sign panel on each side of the Monument Sign, shall be agreed to between the Owner of Lot 3A and the owner of Lot 3B at least thirty (30) days prior to the commencement of construction of the Monument Sign. 6. Maintenance of Common Areas By Maintenance Director. (a) Jackalope shall serve as management agent for the Owners (the "Maintenance Director") in regard to the Property unless and until Jackalope sells its last Parcel. Thereafter, the Owner of Lot 3B shall perform the maintenance duties of the Maintenance Director described below. (b) The Maintenance Director shall maintain the Common Areas in accordance with all applicable laws and otherwise in good condition and repair at all times, including without limitation the following: (1) keeping any unimproved Parcel reasonably weed -free and orderly until the Parcel is improved; (2) maintaining the surface of any paved driveway or parking areas in a level, smooth and evenly- covered condition with the type of surfacing material originally installed or such substitute as shall in all respects be at least equal in quality, use and durability, and placing, keeping in repair and replacing all appropriate directional signs, markers and lines; (3) removing all papers, ice and snow, mud and sand, debris, filth and refuse and sweeping surface areas to the extent reasonably necessary to keep the Common Areas in a clean and orderly condition (which shall not include disposal of trash or maintenance of any trash enclosure or dumpster serving the buildings on particular Parcels, which shall be the sole responsibility of the Owners of the respective Parcels); (4) maintaining any Detention Areas and keeping in repair (and replacing if necessary) all fencing and retaining walls along the perimeter of the Property; and (5) maintaining, mowing, weeding, trimming and watering all landscaped areas (including the Detention Areas) and making such replacement of plants and other landscaping as may be reasonably appropriate and necessary. (6) maintaining site lighting for the Common Areas. Jackalope hereby establishes a non - exclusive easement for the benefit of the Maintenance Director on and over affected portions of the Property for the purpose of effecting such maintenance. f00321190/3) 1794892 DEC C 02/03/2009 04:39:14 PM Pagge: 6 of 12 R 61.00 D 0.00 T 61.00 Gi Poert Ortiz ClerkMecorder, Pueblo County, Co (c) The Maintenance Director shall provide and maintain comprehensive general liability coverage, in reasonably adequate amounts (but in no event less than $2,000,000) from time to time, with broad form coverage /endorsement insuring against claims for personal injury, bodily injury or death, and property damage or destruction, occurring in, on or about the Common Areas or otherwise arising in the course of its maintenance activities hereunder. Such insurance shall be written with an insurer licensed to do business in Colorado, and shall name all the Owners as additional insureds. The Maintenance Director shall furnish certificates evidencing such insurance to all the Owners annually, and each policy of such insurance shall provide that the insurance evidenced by such certificates shall not be canceled, materially changed or not renewed without at least 30 days' prior written notice to the insureds. (d) The actual reasonable and necessary costs of such maintenance and insurance (including a management fee not to exceed 10% of the maintenance expenses for the year), together with any maintenance costs allocated to the Property under the Master Covenants, shall be allocated among the Owners based upon the relative areas of the buildings constructed on their respective Parcels (the "Owner's Proportionate Share "). (e) For so long as Lot 3A is the only improved portion of the Property, Lot 3A shall be responsible for 100% of the Common Area Charges (as defined below). Upon improvement of Lot 3B (with paving, landscaping, improvements or otherwise), Lot 3A and Lot 3B shall each be responsible for 50% of all Common Area Charges. Notwithstanding the foregoing, should the City or County require, in connection with the development of Lot 313, installation of parking lot, landscaping and similar improvements, but no vertical construction, Lot 3A's proportionate share shall remain as 100% of all Common Area Charges. The term "Common Area Charges" means the actual, reasonable and necessary out of pocket costs that are directly attributable to maintaining, insuring and repairing the Common Areas, and does not include any costs attributable to the initial installation of any improvements comprising or located in or upon the Common Areas. (f) Each Owner's Proportionate Share of the projected expense of maintaining the Common Areas, payment of Common Area utilities (such as site lighting and irrigation), and Common Area insurance, shall be paid quarterly (or irregularly or more frequently, at the election of the Maintenance Director), in advance. The Maintenance Director shall, on or before April 15 of each year, provide to the Owners a reconciliation of the actual expenses of maintenance and insurance during the previous year, including such documents and other supporting information as may be appropriate and making such adjustments of the Owners' contributions as may be indicated by such reconciliation. 7. Taxes. Each Owner shall pay, or cause to be paid, all real and personal property taxes and assessments levied against its Parcel, prior to delinquency, directly to the appropriate taxing authority, and provide evidence of such payment to each other Owner on an annual basis promptly after such taxes are fully paid. If any Owner fails to pay such taxes and assessments in full prior to delinquency, and the taxing authority lists the tax lien against such Owner's Parcel for sale, any other Owner may pay such delinquent taxes, (00321190 / 31 1794892 DEC C 02/03/2009 04:39:14 PM Pa e: 7 of 12 R 61.00 D 0.00 T 61.00 Gilbert Ortiz ClerklRecortler, Pueblo County, Co ®illi including penalties and interest, and the nonpaying Owner shall repay to the paying Owner the total amount so paid upon demand. 8. Expense Lien. Any amount owed by an Owner to the Maintenance Director pursuant to paragraph 6 above, or owed by any Owner to another Owner as a result of payment of taxes pursuant to paragraph 7 above, which is not paid within the times permitted shall constitute a lien against the Parcel which is owned by the non - paying Owner, which lien shall be prior to all other liens except the lien of any first mortgage or deed of trust and the lien for unpaid taxes and assessments. Any such unpaid amount, together with interest at the rate equal to 5% per annum above the prime rate designated by the Wall Street Journal from time to time, plus the costs and expenses of collecting such amount (including reasonable attorney fees), shall be the personal obligation of such non - paying Owner. Such lien (including such interest, costs and expenses) may be foreclosed in the same manner as the foreclosure of a mortgage in the State of Colorado. The existence of the lien rights set forth in this paragraph 8 shall not be deemed to supersede or impair in any way the right of any Owner to recover damages from a non - paying Owner or to exercise any other available remedy at law or in equity. 9. Environmental Matters. (a) Except as provided in subparagraph (b) below, no Owner or other Occupant shall release, generate, use, store, dump, transport, handle or dispose of any Hazardous Material on the Property, or otherwise permit the presence on the Property of any Hazardous Material except in accordance with all Environmental Laws. Each Owner shall immediately advise the other Owners of any release of Hazardous Materials on or about the Property which such Owner knows of or believes to have occurred, including any claims made or threatened by any third party relating to any purported release of Hazardous Materials, and shall promptly provide to all other Owners a copy of any inquiry, notice of investigation or notice of violation or potential or alleged violation of any Environmental Laws and any enforcement, cleanup or removal order or other governmental or regulatory actions instituted or threatened in regard to any portion of the Property. (b) Notwithstanding anything contained in this paragraph 9 to the contrary, any Occupant may (i) use products containing Hazardous Materials and equipment fueled by or containing Hazardous Materials on or about the Property to the extent that such products and equipment are incidental to the normal operations of vehicles, or (ii) merchandise properly packaged products such as paints, oils, solvents, sealers, adhesives and finishes, fertilizers, insecticides and rodent poisons and the like which may contain Hazardous Materials, provided that such use or merchandizing shall comply with Environmental Laws. (c) An Owner or Occupant may also use particular Hazardous Materials on its Parcel with the prior written consent of the other Owners, which consent shall not be unreasonably withheld on the following conditions: (i) the Owner demonstrates to the other Owners' reasonable satisfaction that such Hazardous Materials are necessary or useful to the Owner's or Occupant's business, will be monitored, used, stored, handled and disposed of in compliance with all Environmental Laws, will not 100321190 1 3) 1794892 DEC 02/03/2009 04:39:14 PM Pae: 8 o 12 R 61.00 D 0.00 T 61.00 Gilbert Ortiz Clerk /Recorder. Pueblo County., Cc ®III hYriM' �41Y��P���ht k+' tIF lLI�Jt'h�1�l�hh'14�l:lff�.��il III III endanger any persons or property, and will not invalidate or limit the coverage (or increase the premiums of) any insurance policy affecting or covering any portion of the Property; (ii) the Owner or Occupant provides the other Owners with such security as may be reasonably required by the other Owners to secure such Owner's or Occupant's performance of its obligations under subparagraph (d) below; and (iii) such Owner or Occupant satisfies any other requirements any other Owner may reasonably impose with respect to the proposed use of the Hazardous Materials. (d) In the event that Hazardous Materials are released within any Parcel in violation of any Environmental Laws and such release occurred as a direct or indirect result of an Owner's or an Occupant's use, handling, storage or transportation of such Hazardous Material, as between the Owners, such Owner or Occupant engaged in such activity shall be solely responsible and shall be liable for the prompt cleanup and remediation of any resulting contamination and all claims, costs, expenses (including reasonable attorney and consultant fees) and damages, including consequential damages, suffered by the other Owners and Occupants. 10. Damage to Improvements. If any building constructed on any Parcel is damaged or destroyed by fire or other casualty, the Owner of such Parcel shall, at its election and commencing within a reasonable time after such occurrence, either (i) repair and restore such building, or (ii) raze the remainder of the building, remove the debris, and cover the affected area with landscaping, asphalt or some other dustcap material. If an Owner maintains any policies of insurance against the risk of such casualty, such policies shall include waiver of all rights of subrogation against the other Owners. 11. Condemnation. If all or part of the Property is condemned or taken by any duly- constituted authority for a public or quasi - public use, the Owner or Owners of the property concerned shall retain the entire award; provided, that the other Owners may receive and retain any amount specifically awarded to them for damages resulting from the severance of Common Areas so condemned or taken. The Owner of Common Areas so condemned or taken shall promptly repair and restore the remaining portion of the Common Areas owned by such Owner as near as practicable to their condition and function immediately prior to such condemnation or taking, without contribution from any other Owner. 12. Enforcement. (a) In the event of any violation or threatened violation of any of the provisions of this Declaration, any Owner shall have, in addition to any other right or remedy which may be available at law, in equity or otherwise, the right to enjoin such violation or threatened violation in any court of competent jurisdiction. Any Owner shall have the right to seek a temporary injunction against an alleged violation at any time that circumstances justify such a request. (b) Any Owner contemplating any other enforcement action hereunder shall, at least 30 days prior to commencement of the action, notify the offending Owner or Owners, and all other Owners, of the violation and the Owner's contemplated action. The contemplated action shall only be commenced if action to cure the alleged t0032 / 3 1 1794892 DEC C 02/03/2009 04:39:14 PM Page: 9 of 12 R 61.00 D 0.00 T 61.00 Gilbert Ortiz Clerk /Recorder. Pueblo County. Cc ®III �friY�41E�' rh��i�' Gti1CI�Mt+f�I�h��'I�l,l�h+�IN��t ®1111 default is not commenced within 30 days after the giving of such notice and diligently pursued thereafter to completion. (c) In no event shall any violation of this Declaration entitle any Owner or other party to cancel, rescind or otherwise terminate any party's rights under this Declaration. In the event any action or proceeding is brought by any party under this Declaration, the prevailing party shall be entitled to recover any and all costs and expenses incurred to enforce or establish its rights hereunder, including reasonable attorney fees and all other trial court and appellate costs. 13. Miscellaneous Provisions. (a) No Public Dedication. Nothing contained herein is intended as a gift or dedication of any portion of the Property to the general public or for the use of the general public for any purpose whatsoever. (b) Nature of Declaration. This Declaration, and all easements, restrictions and conditions contained herein (whether affirmative or negative in nature) are made for the direct, mutual and reciprocal benefit of the Parcels, shall constitute covenants running with the land, and shall inure to the benefit of, and be binding upon, every person hereafter having any fee, leasehold, mortgage or other interest in a Parcel or any portion thereof. In the event of any transfer of a Parcel by an Owner, that Owner shall be entirely freed and relieved of all liability as to that Parcel under any and all of the covenants and obligations contained in or derived from this Declaration arising out of any act, occurrence or omission occurring after the consummation of such transfer. (c) Amendment. This Declaration may only be amended by a writing executed by or on behalf of the then - Owners of the Parcels which has been approved by the City (if required) and recorded in the real property records of Pueblo County, Colorado. (d) Duration of Declaration. This Declaration shall continue in full force and effect until the 50th anniversary of the recording of this Declaration (the "Renewal Date "), and shall automatically be extended for an indefinite number of consecutive 10 -year periods unless and until it is terminated by agreement of the Owners, duly confirmed by an instrument in writing recorded in the real property records of Pueblo County, Colorado. (e) No Waiver. No waiver of any violation of this Declaration shall be construed as, or constitute, a waiver of any other breach or a waiver, acquiescence in or consent to any further or succeeding violation of the same or any other provision of this Declaration. (f) Severability. If any term or provision of this Declaration shall, to any extent, be held invalid or unenforceable, the remaining terms and provisions of this Declaration shall not be affected thereby, but each remaining term and provision shall be valid and enforced to the fullest extent permitted by law. (00321190 / 31 1794892 DEC C 02/03/2009 04:39:14 PM Page: 10 of T2 R 61.00 D 0.00 T 61.00 Gilbert Ortiz ClerklRecorder, Puebla County, Co (g) Governing Law. This Declaration shall be governed by, and construed in accordance with, the laws of the State of Colorado. (h) Headings; Number; Gender. The headings herein are inserted only for convenient reference, and in no way define, limit or describe the scope or intent of this Declaration or in any way affect the terms or provisions hereof. The singular number includes the plural and the masculine gender includes all genders. (i) Notices. All notices under this Declaration shall be given in writing and shall be effective for all purposes if hand delivered or sent by certified United States Mail, postage prepaid, or by prepaid expedited courier service, with proof of delivery or attempted delivery, to the most current address(es) of the intended recipient as known to the party giving such notice. IN WITNESS WHEREOF, Jackalope has executed this Declaration as of the date set forth above. JACKALOPE HOLDINGS III, LLC, a Color ted liability company By: Its: Ma ager STATE OF COLORADO COUNTY OF 0 W'� The foregoing instrument was acknowledged before me the 73� day of 2008, by 1 IJQ� as MAh)"Z?Z— of Jackalope Holdings III, LLC, a Colorado limited liability company. Witness my hand and official seal. f My commission expires: =, 10 5 Notary blic EXPIRti� )00321190/3) Q F m X W X � r� W w �m w wua s 7e w mwm. mnm..e ,sae •a2s lame m ,m4 wn•nwc npu Iwn[ m tmA wA L . 94<W u.G 0.w. ub mmma vin® mrs _ dv w � •6 ]d__ ��• ws vusm ns mr m ¢ mrz w ) rnxn w l In m_� T uu r MS_dT� Ila2_re w lls vwn �. 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Lors nmuwrruu 1794892 DEC C 02/03/2009 04:39:14 P11 Pa e; 11 of 12 R 61.00 D 0.00 T 61.00 Gilbert Ortiz Clerk /Recorder, Pueblo County, Co EIJI i�l l��i � �l il`l� ti li ;�lll ®i iii PIEDMONT PARK 11, A SPECIAL AREA PLAN A RESUBDIVISION OF LOT 3, PIEDMONT PARK LOCATED IN THE SOUTHEAST QUARTER OF SECTION 13, TOWNSHIP 20 SOUTH, RANGE 65 WEST OF THE 6TH PRINCIPAL MERIDIAN, COUNTY OF PUEBLO, STATE OF COLORADO PAGE 1 OF 1 �c x�o i °ice a � -ALA ',�� m A 91 w smsa mo w: e ca a e^ �� re .�..n k ssT ,uw w semn c.- .i -lo. v rn .roomA N a Y_ J r'w"V � wx cwwrs -vxWrtw xc ��� ___serma•5 -- anlnS LOT 7A v2a. rc 0iwm wrc 2.w m.wa rwu __ sw.��ra .mo t2m.r a � 7.o mm � rar . oxaer� w wd2sma ar.r. R9fl e1eN�EERS- AIRYEICRS. NC. PIfYYOIrtYYRIL mlgt (ww,oa mm• II YCOU U1F�vIY 1794892 DEC C 02/03/2009 04:39:14 P11 Pa e; 11 of 12 R 61.00 D 0.00 T 61.00 Gilbert Ortiz Clerk /Recorder, Pueblo County, Co EIJI i�l l��i � �l il`l� ti li ;�lll ®i iii PIEDMONT PARK 11, A SPECIAL AREA PLAN A RESUBDIVISION OF LOT 3, PIEDMONT PARK LOCATED IN THE SOUTHEAST QUARTER OF SECTION 13, TOWNSHIP 20 SOUTH, RANGE 65 WEST OF THE 6TH PRINCIPAL MERIDIAN, COUNTY OF PUEBLO, STATE OF COLORADO PAGE 1 OF 1 EXHIBIT B AE U� aS o t,U ..mn v m0a e� `v NmD � o mom 8 MU� N 0 0„ No i Nti � 01 am" m�= eau® MONUMENT SIGN ® LOCATION OM AREAS