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HomeMy WebLinkAboutFile Documents.508 E Cooper Ave.0006-2023-BCOM (5) Exhibit C RECEPTION#: 593771, 11/07/2012 at 03:55:33 PM, RECORDING REQUESTED BY: WHEN RECORDED RETURN TO: 1 OF 13, R $71.00 Doc Code AMEND COV Andy Heeht,Esq. Janice K. Vos Caudill, Pitkin County, CO Garfield&Hecht,P.C. 601 East Hyman Avenue Aspen,Colorado 81611 AMENDED AND RESTATED DECLARATION OF COVENANTS WHEREAS, COOPER STREET DEVELOPMENT, LLC, a Colorado limited liability company (the "Declarant"), is the owner in fee simple of the following described real estate (the "Property")situate in the County of Pitkin and State of Colorado, to wit: THE EASTERLY 18 INCHES OF TI-IE SOUTHERLY 68 FEET OF LOT L, THE SOUTHERLY 70 FEET OF LOT M, ALL OF LOT N, EXCEPT THE EASTERLY 23.75 FEET, BLOCK 95, CITY AND TOWNSITE OF ASPEN TOGETHER WITH THE PARTY WALL RESERVATIONS AND RIGHTS AS SET FORTH IN DEED RECORDED AUGUST 22, 1969 IN BOOK 243 AT PAGE 279. WI-IEREAS, Declarant wishes to establish certain restrictions (these "Covenants")on the use and occupancy of approximately eighteen hundred (1,800) square feet to be located in the below grade space in the building(the "Building") intended to be constructed on the Property, as such space (the "Lower Level") is generally depicted on Exhibit "A" attached hereto and incorporated herein by this reference. WHEREAS, a Declaration of Covenants for the Property were originally recorded in the Pitkin County Real Property Records on October 30,2012 at Reception No. 593554 (the "Original Covenants"). Declarant desires to restate and amend the Original Covenants by these Covenants. NOW THEREFORE, Declarant does hereby publish and declare that the following terms, restrictions and limitations shall be deemed to run with the land comprising the Lower Level and be binding on each owner of the Lower Level, or any portion thereof, and shall be for the benefit of and enforceable by each owner of any other portion of the Building on the Property and the City of Aspen (the "City") and Declarant does declare that these Covenants are made in furtherance of establishing and maintaining the character and value of real estate in the City. Upon recordation of these Covenants, the Original Covenants shall be superseded and replaced by these Amended and Restated Declaration of Covenants. 1. Permitted Use. The Lower Level shall be restricted to the operation of a restaurant, on site food service, bar or a brewery. Other uses allowed in the CC Zone District as a matter of right shall be permitted only upon the agreement of the Declarant and the City. Other space on the same level as the Lower Level or space any place else in the Building ("Remaining Building Space") shall not be subject to these Covenants and any and all lawful uses of such space shall be allowed in accordance with the permitted uses (or conditional uses where approved by the City) within the CC Zone District. In the event that at any time the Building is subjected to a RECEIVED 03/10/2023 1 ASPEN BUILDING DEPARTMENT condominium regime, these Covenants shall automatically be amended be so that these Covenants only affect the Lower Level. These Covenants that apply only to the ownership, operation and use of the Lower Level and shall not burden in the Remaining Building Space. Upon recordation of the condominium map, Declarant may file a supplement to these Covenants for the sole purpose of substituting the condominium unit description for the current Exhibit "A" description. 2. Rent. If at any time and from time to time following the recording of these Covenants in the real property records of Pitkin County, Declarant enters into a lease with a tenant for the Lower Level, or any part thereof, the rent for the first year after a Certificate of Occupancy is issued for the Lower Level (the "Commencement Date") shall be an amount not to exceed the lesser of Fifty Dollars ($50.00) per square foot of leased space or 75% of the average rents paid by commercial tenants for similar spaces,plus the tenant's obligations, if any, to pay a share of the Common Area Maintenance Costs, as hereinafter defined (collectively the "Rent"). The Declarant shall have the obligation of providing evidence of the amount of rents paid by such commercial tenants. Common Area Maintenance Costs shall mean all costs and expenses (including, without limitation, insurance costs) attributable to the ownership operation, maintenance and repair of the Building, (or in the case of a condominium,the common elements) excluding however real estate taxes. To the extent costs of the ownership, operation, maintenance and repair of the Building and/or insurance costs are included in assessments levied against the Lower Level by any unit or homeowners association to be formed, Rent shall include that portion of the assessments attributable to such costs. Common Area Maintenance shall be in an amount that is reasonable for commercial space of this size and location within the commercial core. Rent shall be adjusted each calendar year after such first year by increasing the amount payable per square foot for the applicable year by a percentage equal to the lesser of (i) the percentage increase, if any, in the U.S. Consumer Price Index (the "CPI") over the CPI in effect at the Commencement Date or (ii) five percent (5%). However, at no time shall rent exceed 75%of the average rents paid by commercial tenants for similar spaces. 3. Lease Restrictions. The lease entered between Declarant and any prospective tenant shall include a limitation on the prices of food, excluding alcoholic beverages, that may be charged by the Tenant to its customers and the right to terminate the lease if the price limitation is violated. Such limitation shall require that the average price of food, excluding alcoholic beverages, that may be charged by the Tenant shall be reasonably comparable with the menu pricing of Bentley's Restaurant within the Wheeler Opera House. Reasonably comparable shall be deemed to mean within ten percent of the average price of food products sold by Bentley's, so long as Bentley's maintains its current, 2008, operational format. If Bentley's ceases to operate in its current format, then the pricing of the on the Tenant's menu, measured separately for lunch and dinner, shall be within the lower one-third of the average price of food, excluding alcoholic beverages, of all of the restaurants in the City of Aspen. This calculation shall include sit-down restaurants and exclude restaurants that would be deemed fast food restaurants. The Declarant shall be required to provide the Tenant and the City of Aspen its calculations of the average price of food of all of the restaurants in Aspen, together with empirical data supporting such calculations, annually. The City of Aspen shall have the right to require that the Tenant comply with this restriction by providing notice to the Tenant of its violation. If the Tenant does not correct its pricing schedule within ten days of notice of violation, then the Declarant shall 317016_1 RECEIVED 03/10/2023 2 ASPEN BUILDING DEPARTMENT terminate the lease. In addition, any Lease to the Lower Level shall include a requirement that the business operate for forty-four weeks per year and that the business maintain business hours of at least between eleven o'clock a.m. to eleven o'clock p.m, six days per week. Other than the requirement to operate forty-four weeks per year, the lease restrictions set forth in this Paragraph 3, shall not apply to a tenant who has obtained a manufacturer's license from the State of Colorado to operate as a brewery. 4. Delivery of Copy of Lease to City. A copy of any and each lease for the Lower Level, or any part thereof, shall be provided to the City of Aspen, Attention Director of Planning or the Zoning Enforcement Officer within ten (10) business days after full execution thereof. 5. Entrance Plan. The Building shall include an entrance to the Lower Level on the west side of the Building. Such entrance shall include a stairwell and a lift that provides access to the Lower Level by persons with a physical disability, which stairwell and lift (the "Entrance Plan") shall cause the entrance to the Lower Level to be in compliance with the Americans with Disabilities Act of 1990, 42 USC §§ 12101 to 12213. The Entrance Plan shall be consistent in all material respects with the plan for the Building set forth on Exhibit A. 6. Noise. The use of the Lower Level shall at all times be restricted so that no amplified or unreasonably excessive noise is produced. Declarant's reasonable commercial discretion as to what constitutes "excessive noise" shall be binding on any tenant in the Lower Level. However, notwithstanding the above language, compliance with environmental health standards will be deemed acceptable. 7. Signs. The lower level business shall be allowed to place a sign on the street facing facade of the main level. However, no sign, billboard, decoration, poster board or advertising structure of any kind shall be placed, erected, displayed or maintained anywhere on or within the Building, including the Lower Level, until plans and specifications therefore showing the nature, shape, dimensions, color, materials, and locations for signage have been submitted to and approved in writing by Declarant, which approval shall not be unreasonably withheld. All signs shall be in compliance with the design standards of the City of Aspen. 8. Occupancy. Declarant or any subsequent owner shall be permitted to leave the Lower Level vacant if, in its sole discretion, it deems any prospective tenant to be unsuitable. The • Declarant agrees to utilize reasonable efforts to in good faith locate prospective tenants who are reasonably agreeable to the Declarant. "Reasonable efforts" shall be defined as including, but not limited to, circulating lease terms and information to local commercial real estate brokers and advertising in a newspaper of general circulation continuously during the period in which the property is vacant. If the space remains vacant for a period of six months or greater, the City shall have the right to name a tenant for consent of the Declarant, whose consent shall not be unreasonably withheld. The City of Aspen may obtain a proposed tenant through a standard Request for Proposal (RFP) process. Furthermore, Declarant (or any affiliate or Declarant) or any subsequent owner of the Lower Level shall be allowed to use and occupy the Lower Level, or any part thereof, for so long as such use complies with the applicable terms and provisions of these Covenants. 317016_1 RECEIVED 03/10/2023 a ASPEN BUILDING DEPARTMENT 9. Enforcement. These Covenants are for the benefit of, and are enforceable solely by, the City of Aspen as to the provisions of Paragraphs 1, 2, 3, 4 and 8 and by any then owner of any portion of the Building. There are no other beneficiaries or persons intended to have standing to enforce these Covenants. As an example of the foregoing, if the Building consists of condominiums or any other form of separate ownership and if the restrictions on the level of noise from the Lower Level set forth in Paragraph 5 hereof are violated, any owner of any space in the Building (or any association formed for the benefit of such owners) shall have the right to enforce the provisions of such noise restrictions against the owner of and/or tenant in the Lower Level. If court proceedings are instituted in connection with the rights of enforcement and remedies provided in these Covenants, the prevailing party shall be entitled to recover its costs and expenses in connection therewith, including reasonable attorney's fees. Failure by any party to enforce any provision of these Covenants shall not operate as a waiver of any such provision, a waiver of the right to enforce such provision thereafter, or a waiver of any other provision of these Covenants. 10. Amendment or Revocation. Except as allowed in paragraph 1 above, these Covenants may be amended or revoked only by written instrument executed by all of the applicable benefitted parties (except the City of Aspen) and recorded in the office of the Clerk and Recorder of the County of Pitkin, State of Colorado. The consent of the City of Aspen shall be required only with respect to any material amendment, modification or revocation of the provisions of Paragraphs 1 - 8 of these Covenants. 11. Effect of Provisions of these Covenants. Each provision of these Covenants, and any agreement, promise, covenant and undertaking to comply with each provision of these Covenants: (i) shall be deemed incorporated in each deed or other instrument by which any right, title or interest in any burdened portion of the Property is granted, devised or conveyed, whether or not set forth or referred to in such deed or other instrument; (ii) shall, by virtue of acceptance of any right, title or interest in any portion of the burdened portion of the Property by an owner, be deemed accepted, ratified, adopted and declared as a personal covenant of such owner and shall be binding on such owner and his heirs,personal representatives, successors and assigns; and (iii) shall be deemed a real covenant by Declarant, for itself, its administrators, successors and assigns, with respect to the Property and also an equitable servitude running in each case as a burden with and upon the title to each and every burdened portion of the Property for the benefit of the City of Aspen and the owner(s) from time to time of any other portion of the Property. In no event shall these Covenants be deemed to be for the benefit of or be enforceable by any third party. 12. Severability. Invalidity or unenforceability of any provision of these Covenants in whole or in part shall not affect the validity or enforceability of any other provision or any valid and enforceable part of a provision of these Covenants, which other or part of a provision shall remain in full force and effect. 13. Captions. The captions and headings in this instrument are for convenience only and shall not be considered in construing any provisions of these Covenants. 317016_1 RECEIVED 03/10/2023 a ASPEN BUILDING DEPARTMENT 14. Construction. When necessary for proper construction, the masculine of any word used in these Covenants shall include the feminine or neuter gender, and the singular the plural, and vice versa. 15. Governing Law. These Covenants are made and executed under and are governed by and shall be construed in accordance with the laws of the State of Colorado. IN WITNESS WHEREOF, Declarant has executed these Covenants as of the 7t 1 day of November, 2012. COOPER STREET DEVELOPMENT LLC, a Colorado limited liability company By: Cooper Street Pier LLC, a Colorado limited liability company, its Manager By: Andrew V. Hecht,Manager STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me thi7 day of November, 2012 by Andrew V. Hecht, Manager of Cooper Street Pier LLC, Manager of Cooper Street Development LLC. WITNESS BY HAND AND OFFICIAL SEAL, [SEAL] STACY STANEK Notary Public NOTARY PUBLIC STATE OF COLORADO NOTARY ID#20024032730 My Commission Expires October 7,2014 317016I RECEIVED 03/10/2023 5 ASPEN BUILDING DEPARTMENT