HomeMy WebLinkAbout2.0 Final Documentsa
SUBDIVISION IMPROVEMENT AGREEMENT
FOR
EVERGREEN COMMERCIAI, CENTER SUBDIVISION
THIS AGREEMENT is made and. entered into this t EE day of
J rr u€ , 1-995 between WAYNE RUDD AND SUSAN J . RUDD, (the
"Owner") and the BOARD OF COUNTY COMMISSIONERS OF GARFIELD COUNTY,
COLORADO, (Lhe "County" )
WITNESSETH:
WHEREAS, the Owner is the owner of certain real property
]ocated in Garfield County, Colorado, more particularly described
in the Fina1 PIat for Evergreen Commercial Center, which is filed
on even date hereof (the "Subdivision")
WHEREAS, dS a
Subdivision and as
t.he Owner wishes
Agreement wit.h the
' WHEREAS, the County has required and the Owner has agreed to
provide security or collateral sufficient in the judgment of the
County to make reasonable provision for completion of certain
public improvements required to be installed in the Subdivision as
set forth herein.
WHEREAS, the Owner has agreed to execute and deliver a letter
of credit. or ot.her acceptable collateral to the County to secure
and guarantee its performance of t.his Agreement, aII as more fully
set forth hereinafter.
NOW, THEREFORE, FOR AI{D IN CONSIDERATION OF THE PREMISES AI{D
THE FOI,LOWING MUTUAL COVENANTS A.IVD AGREEMENTS, THE PARTIES HEREBY
AGREE AS FOLLOWS:
1. OWNER'S PERFORMANCE.Owner has constructed and
installed, or will cause t.o be constructed and inst.alled at their
sole expense those improvements required through approval of the
condition of approval of the Final Plat for the
required by the Iaws of the State of Colorado,
t.o enter into this Subdivision Improvement
County, and
Prel-iminary Plan in Resolution No. QS-ot3 The improvements
li
.t
required t.herein will be completed on or before September 1-, 1995
in accordance with the following:
A. A11 plat documents submitted prior to or at the time
of the Final Pl-at approval, which are incorporated herein by this
reference and made a part of this Agreement.
B. Al-l- requirements
Garfield County Zonrng Code and
Regulations.
of Resolution
the Garfield
m". 4f,-9 tB_, of the
County Subdivision
C. A11 laws of
Colorado, the Count.y of Garf
affected special districts.
the
ield
United States,
and its various
the State of
agencies and
D. Such other designs
and other materials submitted to
stated governmental ent.it j-es.
, maps, specifications, sketches
and approved by any of the above
The County agirees that if all improvements are installed in
accordance with the terms of this Agreement, the Final PIat
documents and the requirements of the Preliminary Plan, then the
Owner shall be deemed to have satisfied aII terms and conditions of
ihe zoning and subdivision resolutions and regulations of Garfield
County.
2. SECURITY FOR IMPROVEMENTS. On or before the date of the
recording of the Final P1at. with the Clerk and Recorder, Lhe Owner
shall- deliver a letter of credit which is acceptable to the County
in the amount of the total cost of the improvements for the
Subdivision that have not yet been completed. Those improvements,
together with the cost as certified by a licensed engineer are
at.tached hereto as Exhibit A and incorporated herein by this
reference. The letter of credit shall be issued by a state or
national banking institution in a form acceptable to the County,
and from an institution that is l-icensed to do business in t.he
State of Colorado. Certification of completion of improvements
must be submitted by a Iicensed or registered engineer. Such
certification shall- certify that the improvements have been
constructed in accordance with the requirements of t.his Agreement,
including aII Final Plats, and plans, and shall be stamped by said
professional engineer.
The letLer of credit set forth herein must be valid for a
minimum of six (6) months beyond the completion date for the
improvements set forth herein. Any extension of the time periods
within which improvements must be completed shall cause the letter
of credit required herein to be extended for an equal amount of
time. If the Count.y determines that the improvements are not
const.ructed in compliance with the relevant specifications, it
shall- furnish a letter of potential deficiencies to the Owner
within fifteen (15) days from the date the County receives
certification from the Owner that all improvemenLs as set forth on
Exhibit A have been completed. If that letter is not furnished
within fifteen (15) days, aII improvements sha1I be deemed accepted
and the Count.y sha1l release the appropriat.e amounL of security as
such relates to the completed improvemenLs.If a letter of
potential deficiencies is furnished by the County, the County shall
have thirty (30) days to complete its investigation and provide
writt.en confirmation of the deficiencies to the Owner. If, upon
further investigation, the County finds that all improvements are
acceptable, then appropriate security shalI be released to t.he
Owner wiLhin ten (10) days after completion of such investigation.
fn the event that such improvements are not accepted by the County,
the County sha]l- make written findings before drawing upon the
l.etter of credit.
The County may, at its option, permit the Owner to substitute
other collateral acceptable to the County for the letter of credit.
No Final PIaL shall be recorded pursuant to this Agreement
unt.iI a letter of credit or other collateral acceptable to the
County is received by the County to secure completion of the
improvements as hereinabove provided.
3. WATER. Prior to recordati-on of the Final PIat, the water
well and all water system i-mprovements, including aII easements
necessary for the installation of that system, tog:ether with the
necessary water rights and assignment. of permits and water
allotment contracts and other water rights, shalI be transferred by
deed, dedication or contract to the Evergreen Commercial Center
Subdivision Owners Association. That deed, dedication or contract
shall- be recorded coincident with the filing of the Final Plat.
4. INDEMNITY. To the extent allowed by law, Owner agrees
t.o indemnify and hold the County harmless and defend the County
from all- claims which may arise as a result of Owner's inst.all-ation
of t.he improvements pursuant to this Agreement; provided, however,
Owner does not indemnify the County for cl-aims made asserting that
t.he standards imposed by the Count.y on Owner are improper or t.he
cause of the injury asserted.
The County shall be required to notify the Owner of recelpt of
a notice of claim or a notice of intent to sue and shall afford
Owner the option of defending any such cl-aim or action. Failure t.o
notify and provide such option to Owner shal1 extinguish the
County's right under this paragraph. Nothing hereinstated shalI be
interpreted to require Owner to indemnify the County from claims
which may arJ-se from the negligent acts or omissions of the County
or its employees.
5. SCHOOL IMPACT FEES. The parties hereto agree that school
impact fees are not required for this Subdivision.
6 - SALE OF LOTS. No 1ot within the proposed Subdivision
that is the subject of this Agreement shal-I be conveyed prior t.o
the recording of the Final PIat.
, 7. APPROVAL OF FINAL PLAT.
Lhe Final- Plat subj ect to the
Agreement.
The County agrees to approval of
terms and conditions of this
I . ENFORCEMENT. In addition to any right.s which may be
provided by Colorado statute, it is mutually agreed that the Count.y
or any purchaser of a lot within the Subdivision shall have the
authority to bring an action in the District Court of Garfield
County, Colorado to compel enforcement, of this Agreement. In the
event no action is commenced before issuance of the final
certificate of completion of improvements and acceptance thereof by
the County, any purchaser's rights to commence an action shall
t.hereafter be extinguished.
9. CONSENT TO VACATE PLAT. In the event the Owner fails
t.o comply with the terms of this Agreement, the County shall have
the ability to vacate the plat as it pertai-ns to lots for which no
building permits have been issued. Any existing lots for which
building permits have been issued shall not be vacated and the plat
as t.o those lots shalr remain valid. The owner sharr provide a
survey and complete IegaI descript.ion with a map showing the
i
:
Iocation of portions of the plat so vacated.
10. BINDING EFFECT. This Agreement shall be a covenant
running with t.he t.itle to each lot. within the Subdivision and Lhe
right.s and obligations as contained herein shall be binding upon
and inure to the benefit of the Owner, their successors and
assigns.
11. RECORDING. Upon execution, Owner shal_1 record this
Agreement. with the Office of the Clerk and Recorder for Garfield
County, Colorado.
1,2. VENUE AND JURISDICTION.
cause arising out of or relat.ed to
District Court for Garfield County
laws of the State of Colorado.
Venue and jurisdiction for any
this Agreement shall- lie i-n the
and be construed pursuant to the
13 . ROADS. Roads within the Subdivision shall be dedicated
to the Evergreen Commercial Cent.er Subdivision Owners AssociaLion.
The County shall not be obligated to maj-ntain such roads. The
Homeowners Association shal1 bear the sole responsibility for the
maintenance, upkeep, repair, restoration, snow removal and
reconstruction of aII roads within the Subdivision-
ATTEST:BOARD OF COUNTY COMMISSIONERS
GARFIELD COUNTY, COLORADO
By,
Clerk to the Board Elmer "Buckey't Arbaney,
Chairman
OF
March 4, 1995
EXHIBfT IIAIT
Garfield County Planning
Attn: Mark Bean
1@ 8th Street
Glenwood Springs, CO 81601
RE:Evergreen Commercial Center, Final Plat Application
HCE Job No. 91056.01
Dear Mark:
This letter is to give you an update on the construction in place at the Evergreen Commercial
Center site, and the construction remaining to be completed.
Water, electric, phone and natural gas services are in place to each lot. Individual sewage
disposal systems are in place on lots one and three. The overhead powerline that cut across lot
four has been relocated to the southerly property line. The pit run sub-base is in place for the
road, and most of the Class 6 base course for the road is also in place.
The main items remaining to be completed are the final base course and grading for the cul-de-
sac, and the chip seal surface. We estimate that the cost to finish the road will be $4000.
If you have any questions or need additional information, please contact us.
Sincerely,
HIGH COUNTRY ENGINEERING, INC.
,lwkr/,
Prlncipal Engineer
TPB/soe
cc: Wayne Rudd
923 Cooper Avenue . Glenwood Springs, CO 81601
Telephone: 303-945-8676 . FAX: 303-945-2555
7cH
n #"*PineBank
IRREVOCABLE LETTER OF CREDIT
Letter of Credit #101
Garfielci County Pianning Dept
Attn: Mark Bean
109 8th Street, Suite 200
Glenwood Springs, CO 81601
Gentlemen:
June 5, 1995
We hereby establish our Irrevocable Letter of Credit in your favor in the amount of $4,000.00.
The purpose of this Letter of Credit is to secure the performance of the terms and conditions of the
first paragraph of paragraph 1 and 3 set forth in the Subdivision Improvements Agreement for
Evergreen Commercial Center Subdivision, dated June 1, 1995 between Wayne Rudd and Susan J.
Rudd, therein referred to collectively as "Developer", and the County of Garfield, State of
Colbrado, therein referred to as "Count5r".
You shall promptly notifi us when a default or event of default of the Subdivision
Improvements Agreement occurs. Your notification shall include any notice or order required to be
sent to Developer pursuant to the Subdivision Improvements Agreement. Notice shall be by
telephone and in writing to:
Aipine Bank, Basalt
Attention: Glenn Davis
Post Office Box R
Basalt, Colorado 81621
(303) 927-3r0t
You are hereby authorized to draw on sight on Alpine Bank, Basalt, by draft not to exceed the
amount of $4,000.00 commencing on June 1, 1995. Partial drawings are permitted.
The conditions for payment of any draft drawn against this Letter of Credit are as follows:
Box R . Basalt, Colorado 81621 . (303) 927-3101
Fotmeily known as Bank ol Basalt fiB n"tvtled PaPer
Garfield County
October 6,1994
Page2
1. The original Letter of Credit shall be indorsed on the reverse side with the words: "Drawn by
Garfield County, Colorado in the amount of
County, Colorado; and
", then signed by the Manager of Garfield
2. The draw shall be attached to a letter, upon the letterhead of Garfield County, Colorado,
executed by Garfield County, Colorado, stating that "There exists a default under the terms of
Paragraph 2 of the Subdivision Improvements Agreement for Evergreen Commercial Center
Subdivision, dated June 1, 1995, between Developer and the County, which default entitles the
County to draw upon this Letter of Credit". The letter shall set forth the nature and extent of the
default which entitles the County to draw upon this Leffer of Credit.
This Letter of Credit is not transferrable. Alpine Bank, Basalt, agrees that drafts presented and
negotiated under and in Compliance with the terms of this Letter of Credit shall be duly honored
upon presentation and delivery of documents as specified above, if presented on or before March 1,
1996,at 2:00 p.m. Mountain Daylight Time.
When releases of the Letter of Credit are approved by the County in accordance with the
provisions of Paragraph 1 of the release, the amount of this Letter of Credit shall be automatically
reduced in the same amount of the amount of the release or, if no amount is specified, the cost
identified in Attached Exhibit A identifuing the public improvement which has been completed
and approved by the County. Copies of all such releases shall be promptly delivered to the Bank
upon their approval by the County.
In the event the public improvements required by the provisions of Paragraph 1 of the
Subdivision Improvements Agreement are not constructed or completed in compliance therewith,
on or before September 1,1995, Alpine Bank, Basalt, agrees to pay a draft presented and negotiated
under and in accordance with the terms of this Letter of Credit conceming Paragraph 1 of the
Subdivision Improvements Agreement.
This Letter of Credit shall be govemed by Article V of the Uniform Commercial Code as in
effect in the State of Colorado. This Letter of Credit is subject to the Uniform Customs and
Practice of Documentary Credits, Intemational Chamber of Commerce, Publication No. 400 (1989
Revision), except as otherwise expressly stated herein.
Garfield County
October 6,1994
Page 3
Any communications with respect to this Letter of Credit shall be in writing and shall
addressed to Alpine Bank, Basalt, as set for the above, to the attention of the undersigned.
Sincerely,
Alpine Bank, Basalt
BY;
G
ice President/Cashier
I
I,-t
t
ASSIGNMEI,IT OF ALLOTMEI.IT CONTRACT
BASALT WATER. CONSER.Y'ANCY DISTRICT
EYERGREE}.i COMMER.CIAL CET.TTER SI]BDTVTSION OWNER,S ASSOCIATION
CONTRACT NO. 147
FOR VALUE RECEIVED, WAYNE G. RIIDD ("Assignor"), hereby sells, assigns,
transfers, and sets over to the EYERGREE}{ COMMERCIAL CEtl\iTER SIIBDIWSION
OWNER^S ASSOCIATION, e Colorado non-profit corporation, ("Assignee") all of
Assignor's right, tifle, and interest in and to that certain Water Allotment Contract with the
Basalt Water Conservancy District dated April 8, 1991, which Contract allos 5.5 acre feet of
water per year for use on that real properry described on Exhibit "A" attached hereto and
incorporated herein by this reference.
This Assignment is conditioned upon the consent thereto by the Basalt Water
Conservancy District as hereinbelow provided. Assignee hereby assumes and agrees to pay and
perform dl of the obligations of the Allottee under said Contract.
Dated i65 2rntr day of April, 1995.
BY:
Assignee's Mailing Address:
0132 Park Avenue
Basa1t, CO 8\62L
Telephone No. (970) q 71 -q ( q
EVERGREEN COMMERCIAL CENTER SUBDTYISiON
OWNERS ASSOCIATION, Assi
Ior, c 4,1,/
wavfi/c. Rudd, Assignor
CONSEI.IT TO ASSIGNMENT
The Basalt Water Conservancy Disfict hereby consents to the foregoing Assignment
subject to the terms of and conditions of said Contract and the District's receipt of all charges
related thereto. This Assignment is subject to the additional condition(s) set forth on Exhibit
'B" attached hereto.
ftz
Dated this r 7- - day of April, 1995.
By:
EXHIBIT rrB.,
TO ASSIGNMENT OF BASALT WATER CONSERVANCY DISTRICT
CONTRACT
The Assignment to which this Exhibit is attached to and made a part of is approved and made subject
to ttre following condition(s):
1. By acceptance of this Contract, Applicant acknowledges that within two years of the date hereof
or such later date as the District may approve, the Applicant shall file with the Water Court of Water Division
No. 5 a water rights plan of augmentation for urilization of water allotted hereunder at the location and for the
purposes hereinabove set forth or the Applicant's water allotment as provided in this Contract shall be included
in a water rights plan of augmentation to be filed by the District with the expenses thereof to be shared prorata
by the Contract holders included in such plan; provided that inclusion of the Applicant's water allotment in the
District's plan of augmentation shall be at the District's sole discretion. The District may establish an
augmentation plan fee to be paid by the holder of any Contract to be included within a plan of augmentation
to be filed by the District, which fee shall be payable in advance of the inclusion of such Contract in a District
plan of augmentation and may be based on the District's good faith estimate of the anticipated expense of such
plan of augmentation. If such augmentation plan fee paid by a Contract holder exceeds the Contract holder's
prorata portion of the actual expenses incurred by the District in completing said plan of augmeniation, the
District shall refund such excess to the Contract holder.
2. Any and all conditions imposed upon the release and diversion of water allotted hereunder in any
water rights plan of augmentation or other water rights decree of the Water Court for Water Division No. 5
shall be incoqporated herein as a condition of approval of this contmct. Granting of this allotment contract does
not constitute the District's representation that the applicant wilI receive a well permit or water rights decree
for the land to be benefitted hereby.
3. If Applicant intends to divert water through a well or wells, Applicant shall provide the District
a copy of Applicant's valid well permit for each such well before the District is obligated to allot water for the
benefit of Applicant hereunder.
PIrllCJiL II
a
B, C and D c1s follor,ls:
aaaa
JI parccl of land siLuatcd in. LoL Tr.rcntl, (20) of .Scction
7 sotttlt, R,ngc B9 l{csL of crri:-iixiii'pr1,rdi1iif-ilcrictiar:,of tttc l{cl;tcrl1, riglrL-of-k,a), linc "f Urc Dcnycr ancl Rioll.rih:oad (-aspcn Dr.inctr.r c-.'d' soutr:cri1, o t3 a zo foo t roadsaid pafccr ir rand is rJescribecl as folr.oi.rs:
' 1, To,r,r"
l1,ing I{c
G::arrrdc I.,',riglr,c-of,
Ileginnir:g at a' point on- thc r.iusto=ry rigtrt-of-rrn], line of said riroad rlttct'rcc atl iron post vritlr i -t ro"".9np founc!- in placa land prolmarJ:cd for the llorthcast, corrro.l Ir saicl io[-:o bcaris N, zgooB,r:1009.92 fccti ttrcncc s. ttt'ii,izi E. L4z.4i fect; Ehe'ce s. 5 go4:' l?' 12,l ' 63 fccLi tltencc soutti-cd.,lg fect; -tlion"o
t.Ic:;t 265. 15 fcet;thencc N. 26o00 r 00,, [.r. 238. g: -i""C;
t,lrci:cc--Hortir Z4A.OO f cet to epoint' 50 feat sotttttc.'tstcrry or-trr. soutlrccrstcrry_right-of-vay 1i:.of tlrc Gle::t:'ood DiLch; _ Ltreirc"-ll-"i B" zz, 27,,- i: fig .Oi iuot along s' Jinc; thcncc H. 35odzl 3g" E. -ai.gr
I9.t ..-rlong sai<I rinei EJ:encc !:17o23t00't E' 13'55 fccL .rong-uiia rir:c to i'poi::t on the.sout,rrcr' Jinc of said 20 foot roa<I riillr,-Ji-,un1,, ttrcnce t{. ?B.Ilrooo E. 15' fceE alor:o said lir:c to o lr"ini o" Li:6-l,tcsi,cr-ty rigtrt-of-uay lir:esaia railioad; tltcncc s.. 1! "ti;00:; E. 3Bs. rg fcet, along the I.IesLc
..tlgl,L-of-t'r.ry rir:c of saicl roiirooa to the-p-oinl or. begl'iing.
TOGETIIER uith a S0 foot continuous right-of-ui1, f:-on the Nort,!:r,.est.-.\litrc of '.Parccl A to thc -sotrther.ly rigli,;-of-r..,.l), line oi oLd SEar{:eIliglrt,'.ry-llo. 82 said 50 fcot righi-of:uay bernlS' ciescril:e,J as parccl:
a
, ii'it:,.:,::l,r,.r:. :'ii' .:':i , jt' l; ..- .'.; i..i j+: ,;'.. .'
.
'
A parccl of lrlnd sifu.rfcd in Lot 20 of icsljion l, Tor*nship Z souflr, R.;;;89 t'lest of thc sixlt-Principat ieriaiu",-il,ing t(orih:rcsferty of thaf ccriainparcel of l'rnd containino 5'.0'l o"t"=,-;;r; or less and souttrcrl), of the souJ.h-crly linc of Gtenuccc 0iich,'said fii".I'it land- [s dcscribccl as folloys:.i.z o. r .._ ..... -,.i .;l.rr.r..;,-- i-..'-'.'..Beginning af a prilnf on itro'l'torthuestcrty iinc-of snia i.oa acre porcoi vhenccthe l{ortlrcasf corner'of said r-ot io-r;J: H.5j. l3r5g,, E. 16.5. 49 teeti thcrrcc,l{orttr iB-72 r::r-to.a poin-r on rhe souir,.rry linu oi-ruii ;;;il;'dii." N.58.z7tzln E- 89.26 fecf aiono {rr9 souttrcrir'r,nc of said dir.ch; thencc N.35,421 :3e'r E' ol .zz recf atono iilo ,::ii,;i:it,'ii,ie of s:rid ditch; thencc N.7Borf ,0o,lE. 57.28 fctt; thcnco d.i:iizsroc,, r;: La'.i'i fect; thence s. j5, 4zt3gu v, Bl.Blfcct; thcncc s.i8'z2r27rn 11, iza.a1 iolt'io tr," point of beginnrng. ..
.Continuc{91.}a{.o.ipage 2 . .,
.. .'..
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a
tr t,r..
PnnCEtJ .C ' .a
t,:Iilll li +:ll,li;'i 33,,f:i,:1,:' f,li-jli'l1"i,,l",lllu'31,ilr,,,
i#;;il,,'iving Eusierty of .irre -Eosr.crry rislrt-gf -r.ray- r rne or tho .
ctanr.rocd DIlcti and iouihcrll' 66 lto Horthcitl' tinc c;t said Lot 20'
;;1, parcct of land ls dcscribcd as fol lo:'rs:' ' '. .....r . o- . i :] j'.,1 .- ' .-t- itl';ii^ ".'
Bcnlnntng af a polnt 6n'-tho Norfhcrly -line of said Lof 20 ulrcncc
il'i;:;;"i"i* uiitr a brass cap founrl il pJace and propBrly inarltcd ,..
ior'rr]" fuo.rhcasf Corncr of iaid Lot 20'beingl llrc-sarnc as thc SouJ'h-
oasf Cr::.ncr o{ Lof 36 in saitl Scction 20 bca,is: S'.87'06t00': E. 811 .26
icnt; thcncc S.O2'J2rO0" E. 70. t6 tccf; thcnco S.l7'OOrOort E. 72-88
i""ti l.trcnce S.tB'l0too" E. 60.t3 fcc{i {h"nco S.18'51 t00rr E. 59;87
i".ti l'hcncc i.04,'41'OC" E. l04.3O feci; thenco S.l5'tOrOOrs E' 82'0t'
. fccl; ttrcnco S.OO'l7to0'r E. 62.07 fccf; thence S'P?'55tOO't l{' 58'35
{cct; ttrcncc S. tZ'23t00" lr. 15.27 fccf! thencE l.l9: I t rOC" l{' 57 '28 '
'fco.t; ttrclco p.i'l.iiro0,,E. 39.oE {ccfi 1hcncc H.oz'gsto0" E. 50-63
.i;;ii lt,"n"o il.OO'iit00" t{. 5l .95 feeti 'l'hcnce l{.15' 10t00" t,. B9r0J-
lac,,; ltrr:ncc il.Of.4tt0O" l{.. t02.82 {cci; ttrence N. tB'31t00.' l{. 53'75
i;;i; fliencc H. tg'iCr0r)r' l{. 60.79 feet; thence N. t?'Oot0o" l{. 79'94
i;;i; ltrenco lil.0?-'Jztoo" l.1. Bl .26 {eof to a poinf .on ;tho h'or'l'helly
ilio'ur said Lof 20; ttrence s.87. 06r0c,t E. .aiong ttrc.Norflrcrll' I inc
li"roi,r lJi-zo-i o.il i;;i, ,"r" or .rcss, .tq. flrc-poi nt,'of bcs i,n ins.
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PNIICEL D
.n ,trtp'of lind 5o iout'ln
l, Tor'lnslriP 7 South, llange
thrldian, bcirrg 25 lcet on
tridl'lr sltrra{'ed ln Lof 36, Scctlon
89 ti'cst of ilre Sixftr Principal o
cach sidc thc fol lo:*iag dcscrihcd ;
contcrl inc:' , i- i-.-'..
e.t -o.t.t oo. . .-t...' .'. ... - .. -l
Bcglnnlng af a polnt utoncc tnl souii,oo=tt6ot-itor'
i.....
o{ sa i d Lo'F '.
..:
36 bc.:rs: S.B7'il6,OO" E. 866.f9 fcei; tttencc along said centcr-
t Ino 11.05' l5tOC" E. ztld.0C tcet,
tho Southcrly rlght-of -qay t inc
a"
coul{Ty oP GlntrrELD '
.STlrTE 0I.. COrcJi/\DO
ncre or lcss to a point on . '
of Otd Staic l'lighuay t{o, 82.
.a
STATEMENT OF AUTHORITY AS TO
REAL PROPERTY
FOR
EVERGREEN COMMERCIAL CENTER SUBDI\ASION
OWNERS ASSOCIATION
Wayne Rudd and Susan J. Rudd (the "Undersigned"), in accordance with C.R.S. 7-30-105,
hereby state the following:
1. The name of the Colorado nonprofit association is Evergreen Commercial
Center Subdivision Owners Association (the "Association").
2. The address of the Association is 0132 Park Avenue, Basalt, Colorado 81621
. 3. The Undersigned are all of the members of the Association and as such have
authority to execute this statement on behalf of the Association.
4. Pursuant to the unanimous vote of the members of the Association, the
Association hereby authorizes the Association Manager, as defined by the Declaration of Covenants,
Conditions and Restrictions for Evergreen Commercial Center Subdivision (the"Declaration") to
encumber or transfer any estate or interest in real property held in the name of the Association,
sib.lect to Owners Action as described in the terms of said. Declaration.
This statement is executed thi, ltj day of J u l.Ja , 1995.
Evergreen Commercial Center Subdivision Owners Association.
MEIVTBERS
Subscribed and swom to before me this /s + 6u, of 4+ 1995 by Wayne Rudd and
Susan J. Rudd as the Members of Evergreen Commer.iul C"nt4 Subdirision Owners Association.
Witness my hand and official seal.
My commission expires: 3 - *
fut"oo,,- (6.^-U-"-
Susan J. Rudd
fl53:r75rvf \: at<.ji susnx i
i vnl cLEvE -'!
#.:-. ... ".tgR;;eri*
SEAL:
Notary Public
-J
ti.3- + t '-
J
DECLARATION OF COYENANTS, CONDITIONS
AND RESTRICTIONS FOR
EYERGREEN C OMMERCIAL CENTER SIIBDTYISION
THIS Declaration of Covenants, Conditions and Restrictions for Evergreen Commercial
Center Subdivision (hereafter the "Declaration") is made this I tr day of -J uara , l995,by
Wayne Rudd and Susan J. Rudd (hereafter referred to as the "Declarants").
RECITALS
WHEREAS, Declarants are the owners of that certain real properfy known as
Commercial Center Subdivision as described on a plat thereof recorded at ReceptionNo.
Evergreen
of the records of Garfield County, Colorado (the "Plat"), together with ail water and water rights,
easements and rights of way appurtenant to or used upon or in connection with said subdivided
lands, and which subdivision is comprised of four (4) lots (the "Lots" or "Lot"), and Parcels B, C,
D and E on the Plat, and certain other common facilities (collectively the "Subdivision"); and
WHEREAS, Declarants desire to create an unincorporated non-profit association pursuant
to the Colorado Uniform Unincorporated Non Profit Association Act, Colorado Revised Statute 7-
30-101 et seq., to be known as the Evergreen Commercial Center Subdivision Owners Association
(hereafter the "Association") for purposes of owning. maintaining and administering Parcels B, C,
D, and E and other common facilities (collectively the "Common Facilities") as hereafter described,
the members of which Association shalt be the owners of the individual Lots (the "Lot Owners") and
which Association shall also administer and enforce the covenants. conditions and restrictions herein
set forth and collect and disburse the assessments and charges hereinafter created; and
WHEREAS, Declarants desire to provide a flexible and reasonable procedure for the overall
development of the Subdivision, and to establish a method for the administration, maintenance,
preservation, control, use, and enjoyment of the Subdivision.
DECLARATION
NOW THEREFORE, Declarants hereby declare that all of the individual or collective Lots
comprising the Subdivision shall be held, transfered, sold, conveyed and occupied subject to the
following covenants, conditions and restrictions which are established for the purpose of protecting
the value and desirability of the Subdivision and which shall run with title to the Lots and be binding
on all owners or other parties having any right. title or interest in the Subdivision.
ARTICLE I
DEFTNTTTONS
1. Annual Budget. "Annual Budget" shall mean the calendar year estimates of
Association expenses and expenditures upon which the Annual Assessment shall be based, which
budget shall be prepared by the Association Manager.
2. Annual Meeting. "Annual Meeting" shall mean the meeting of all members of the
Association to occur once a year for the primary purposes of approving the Annual Budget and
selecting the Association Manager, but at which meeting any other business matters of the
Association may be raised and addressed.
3. Annual and Special Assessments. "Assessments" shall mean all assessments,
An-nual and Special, for Common Expenses of the Association, and all installments thereof, with
interest thereon and costs of collections, including reasonable attorney's fees.
4. Association. "Association" means the Evergreen Commercial Center Subdivision
Owners Association, a Colorado unincorporated nonprofit association whose members shall be the
Owners of Lots I through 4 of Evergreen Commercial Center Subdivision.
5. Common Expenses. "Common Expenses" shall mean the expenses incurred by the
Association under the provisions of this Declaration and which are payable by the Lot Owners upon
aSsessment.
6. Association lvlanager. "Association Manager" shall mean a person who shall be
a Lot Owner and Member of the Association, and who shall be responsible for preparing the Annual
Budget, collecting Annual and Special Assessments, disbursing funds for Common Expenses.
calling special meetings and otherwise managing the administrative aflairs of the Association.
7. Common Facilities. "Common Facilities" shall mean all real property,
improvements thereto, and personal propeny now or hereafter owned by the Association tlrough
dedication, conveyance, or assignment by the Declarants or acquired by the Association through
Owners Action for the common use and enjoyment of all Lot Owners, said Common Facilities
including but not limited to, Parcels B, C, D and E, all designated roads and road improvements,
wells, well permits, water rights, water contracts, roadlvay, access and utility easements, utilities.
structures and pipetines which provide service to or benefit the Subdivision.
8. Declarants. "Declarants" shall mean Wayne Rudd and Susan J. Rudd, their heirs.
devisees, personal representatives, successors and assigns.
9. Declaration. "Declaration" shall mean the covenants. conditions, restrictions and
all other terms or provisions set forth in this document as the same is recorded in the records of
Garfield County, Colorado, and as the same may be amended fiom time to time in accordance lvith
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the provisions hereof, with such amendments being likewise recorded.
h. "Lot" shall mean each of Lots 1, 2, 3 and 4 of the Subdivision.
1 1. Lot Owner. "Lot Owner" means the person, persons, entitv or entities who or which
together shall comprise the record owner of fee simple title to a Lot.
12. Member. "Member" shall mean a person or entity which, by virnre of their status
as a Lot Owner, is deemed to enjoy the membership privileges and responsibilities in the
Association.
13. Owners Action. "Owners Action" shall mean a written statement of action to be
taken by the Association which statement shall be executed by no less than three (3) Members or
their respective authorized repre sentatives.
14. Rules and Regulations. "Rules and Regulations" shall mean the rules, regulations,
guidelines, policies and standards as may be adopted and approved by Owners Action as provided
in this Declaration for the use, operation, maintenance, and administration of the Common Facilities.
ARTICLE II
PROPERTY zuGHTS AND USE OF PROPERTY
_:' l. Lots. The Lots shall be used only tbr lar,vflll pLrrposes consistent with the zoning
regulations of Garfield County, Colorado.
2. Common Areas ancl Facilities. Surbject to the limitations set tbrth in this Declaration
and any Rules and Regulations adopted by the Association pursuant to the provisions of this
Declaration. each and every Lot Owner, tenant. lessee or other occupant of a Lot shall have the right
to the use, enjoyment and benefit of the Common Facilities of the Subdivision.
3. Appurtenance of Interests. Any legal or beneficial interests in the Common Facilities
which inure to a Lot Owner by virrue of such ownership are appurtenant to the Lot owned, with or
without specific reference to such appurtenance in any deed which may convey the Lot. For
purposes of general 49[ valorem property assessment and taxation, said interest in such Common
Facilities shall be considered a part of the Lot and taxes upon the Common Facilities shall be
assessed against each Lot and paid in equal proportions of one-quarter (1/4) by the Owner of each
Lot.
4. Governance of Subdivision. All of the authority regarding the operation,
maintenance, repair, administration and control of the Common Facilities shall be vested in the
Declarants until such time as the first of the four (4) individual Lots are conveyed. Thereafter. the
Lot Orvners shall have the right to membersliip in said Association and the right to participate in the
governance of the Subdivision and all of its Common Facilities as said rights are more fully
10.
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described in this Declaration.
5. Waiver of Right to Partition. No Re-subdivision of Lots. Each Lot Owner
irrevocably waives his right to statutory partition of the Common Facilities. No Lot shall be fuither
subdivided by any Lot Owner; and no Lot shall be conveyed or otherwise hansferred by any Owner
thereof other than in its entirety including appurtenances thereto; provided, however, that this
provision shall not be construed to prevent conveyances to adjust common boundaries. The Lot
Owner of Lot 4 of the Subdivision may, in addition to a commercial structr.:re, maintain one four (4)
turit residential dwelling building on Lot 4 (hereafter the "Fourplex"). The Fourplex may be leased
in whole or in part by said Lot Owner for residential dwelling pqposes; provided, however, that the
Fourplex and the individual units of the Fourplex shall not be sold or conveyed separate from Lot
4, arrd, pr:rsuant to the resffictions of this section, no re-subdivision of Lot 4 or the Fourplex shall
be allowed.
6. Water Meters. Each Lot shall have a separate water meter installed for purposes of
assessing each Lot on a monthly basis for water actually used for the benefit of said Lot. In addition
to other assessments herein provided, statements for such water charges will be mailed monthiy to
each Lot Owner at the address of such Lot Owner as the same shall be maintained in the records of
the Association.
7. Enforcement. The Association, by Owners Action, or any Lot Owner shall have the
right to enforce the covenants, conditions and restrictions contained in this Declaration by any legal
o,f equitable means necessary and available including actions for damages and injunctive reliet'. In
the event of any such action, the Association or Lot Or,vner or Orvners, if they prevail in said action.
shall be entitled to receive reasonable attorney's t-ees and costs fiom the person or persons tburnd to
be in violation of this Declaration.
ARTICLE III
MEMBERSHIP. VOTING RIGHTS AND OWNERS ACTION
1. The owner of record of fee simple title to each Lot shall be a Member of the
Association. For purposes of this Declaration, if a Lot is owned by more than one person. all of the
persons owning an interest in fee simple title to the Lot shall, in the aggregate, be the Lot Olvner
thereof and such muitiple persons comprising the Lot Owner shall, among themselves, designate one
of their number to participate in, and represent the others, in any Association affairs or Owners
Action as herein described. For purposes of participation in Owner Actions and any other voting
matters in the Association, a Member owning more than one Lot shall be entitled to one vote for
each Lot owned.
2. Until such time as the tirst conveyance of title to a Lot in the Subdivision has
occurred, no Association shall exist and the Declarants shall have sole and exclusive control over
the management of the Subdivision and the Common Facilities. Upon the tlrst conveyance of a Lot
by the Declarants, the Association shall. without any flinher act. come into existence. be tbrmed and
established and vested with the rights, duties and obligations of the entity created for the purposes
described herein.
3. The ownership, operation, management, maintenance and repairs of the Common
Facilities and all Association actions taken with respect thereto shall be undertaken and performed
pursuant to Owners Action. The Association shall have the exclusive power and authority to manage
any affairs regarding the Common Facilities, and such power and authority shall include, without
limitation whatsoever, the fo I lowing authority :
A. To own, purchase, lease, install, operate, maintain, repair and replace all or
any part of the Common Faciiities;
B. To adopt such Rules and Regulations as are necessary and appropriate for
governing the use and benefits of the Common Facilities;
C. To make such amendments ormodifications to this Declaration and any Rules
and Regulations as shall be deemed necessary and appropriate;
D. To establish and oversee the Annual Budget, for purposes of paying
anticipated and contingent expenses related to the Common Facilities:
E. To make, determine and collect Annual and Special Assessments for the
p.tlrpose of paying all Common Expenses. Said Annual Assessments to be determined in accordance
with the establishment of the Annual Budgets and as the same are necessary as Special Assessments
for extraordinary or unforeseen expenses related to said Common Facilities and which were not
included in or provided for under the Annual Budget. All Annual and Special Assessments shall
be made on a ratable basis among the Lot Owners, with a one-fourth (1/4) share of the total
assessment to be paid by the Owner of each Lot:
F. To elect at the Arurual Vleeting by O'"vners Action, an Association Manager
to act. dwing the upcoming year, on behalf of the Association and in such capacity to exercise all
powers of the Association delegated to him by such Orvners Action;
G. To enfbrce, by Owners Action. the provisions of this Declaration and any
Rules and Regulations adopted by the Association. as provided herein, either through Owners Action
or by delegation of such entbrcement authority to the Association Manager;
H. To establish a date certain for the Annual lvleeting for the ensuing year and
to establish Special Meetings as appropriate and necessary. Written notice of the date, time and
place of all Annual and Special Meetings, shall be given to each Nlember by mailing such notice to
each such Vlember at least 20 days prior to the date of such Arurual or Special Vleeting at the address
of each respective lvlember as the same shall be maintained in the records of the Association; and
I. To take any other action necessary or appropriate to carry out the goals herein
expressed and to properly maintain the Common Facilities for the use and benefit of the Lot Owners.
ARTICLE IV
COMMON FACILITIES
The Common Facilities which shall be owned by *re Association include, but are not limited
to, Parcels B, C, D and E, all designated roads and improvements thereto shown on the PIat of the
Subdivision, wells, well permits, water and water rights, access, ingress, egress, emergency access,
landscape and drainage and utility easements and improvements, and off site road easement
designated as Access Easement (Parcel F) on the Plat, established by that certain Easement
Agreement recorded at Reception No. 422198 in Book 801 at Page 64 of said records as amended
by that certain First Amendment to,Easement Agreement recorded at Reception No. 424867 in Book
807 at Page 303. The Association shall maintain and keep in good repair the Common Facilities
(and any personal property and improvements associated therewith) including all paved areas, all
landscaped areas, and any other improvements to or upon the Common Facilities. Such
maintenance to be funded through the Annual and Special Assessments as provided herein. and shall
include, but not be limited to, periodic inspection and appropriate treatment of water systems, septic
systems, drainage and storm water retention systems; maintenance, repair, and replacement, of all
other structures, and improvements situated upon the Common Facilities ( including filling all
potholes that may develop in the roads), all to the end that the sat'ety. appearance and qualitv of the
Common Facilities shall permanently endtue. All maintenance flurctions required to be performed
by the Association may be contractually delegated to a managing agent. including a property
,i*og"-.nt firm.
ARTICLE V \
INSURANCE AND CASUALTY LOSSES
1. Insurance. The Association lvlanager shall have the dulv and authority to
obtain insurance tbr all insurable aspects of the Common Facilities against loss or damage by tire
or other hazards, including extended coverage. vandalism. and malicious mischief. This insurance
shall be in an amount sufficient to cover the ftill replacement cost of any repair or reconstruction in
the event of damage or destruction fiom any such hazard. The Association lvlanager shall also
obtain an adequate public liability policy insuring the Association, and its individual Members tbr
all damage or injury caused by the negligence of the Association or any of its Members, the
Association Manager or other agents of the Association.
2. Repair and Reconstruction. If the damage or destruction for which the
insurance proceeds are paid is to be repaired or reconstructed and such proceeds are not suff-rcient
to defray the cost thereof, the Association Ivlanager may. without the necessity of any Owners
Action. levy a Special Assessment to cover the amount of deticiency. If the funds available from
insurance exceed the cost of repair, such excess shall be retained to the benef,rt of the Association.
ARTICLE VI
CONDEMNATION
Whenever all or any part of the Common Facilities shall be taken (or conveyed in lieu of and
under threat of condemnation, by the Association through Owners Action) by any authority having
the power of condemnation or eminent domain, each Lot Owner shall be entitled to notice thereof
and to participate in the proceedings incident thereto, uniess otherwise prohibited by law. The
award made for such taking shall be payable to the Association and used for its purposes herein
enumerated
ARTICLE VII
ASSESSMENTS
1. Annual and Special Assessments. All Annual and Special Assessments, together
with interest at the legal or statutory rate, costs, and reasonable attomeys' t'ees, if any, shall be a
charge on the land and shall be a continuing lien upon the Lot against which each Annual or Special
Assessment and the aforesaid related costs and expenses, is made.
Each suchAnnual or Special Assessment, together with interest, costs and reasonable
attorneys' fees, if any, shall also be the personal obligation of the person who was the Owner of a
particular Lot at the time the Assessment was made.
.:' All such Arrnual and Special Assessments shall be due and payable within thirw (30)
days following the date upon which the Association ivlanager shail have mailed notice of such
Annual or Special Assessment to the Lot Owner obligated to pay the assessment at the address of
said Lot Owner as maintained in the Association records.
2. Liens and Foreclosure of Liens. All Annual and Special Assessments shall
constitute a lien on each Lot prior and superior to all other liens, except (i) all ad valorem t&\es,
bonds, assessments, and other levies which, by law, would be superior thereto, and (ii) the lien or
charge of any first mortgage of record (meaning any recorded mortgage or deed of tmst with first
priority over other mortgages or deeds of trust) made in good taith and for value.
Suit to recover a money judgment for unpaid Common Expenses, interest and
attorneys' fees shall be maintainable without foreclosing or waiving the lien securing the same.
Any lien created pursuant to the provisions of this Article VII may be tbreclosed
under the laws of the State of Colorado in the same marmer as a mortgage.
3. Compurtation of Annual Budget and Annual Assessment. It shall be the duty of the
Association Manager at least thirty (30) days prior to the Annual Meeting. at which the budget shall
be presented to the Association's membership. to prepare a br"rdget covering the estimated costs. and
appropriate reserve ftind amournts tbr operating the Association during the coming year. The
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Association Manager shall cause a copy of the budget, and the estimated amount of the Annual
Assessments deriving therefrom and to be levied against each Lot for the following year, to be
delivered to each Lot Owner with notice of the Meeting.
aeNffic#oXltroNs
1. Term. The covenants, conditions and restrictions of this Declaration shall run with
title to the Lots and shall inure to the benefit of the Lot Owners and shall be enforceable by the
Association, its Association Manager or any of the Lot Owners.
2. Indemnification. The Association shall indemniff Declarants and any persons acting
in the capacity of Association Manager against any and all expenses, including attorneys' fees and
costs, reasonably incurred by or imposed upon said Declarants or Association Manager in connection
with any action, suit or other proceeding (including settlement of any suit or proceeding) to which
the Declarants or Association Manager may be a party by reason of any actions, contracts,
agreements or other activity undertaken by the Declarants or Association Manager before or after
the making of this Declaration. The Declarants or Association Manager shall not be liable for any
mistake of judgement, negligent or otherwise, except for willful misfeasance, malfeasance,
misconduct or bad faith. The Declarants or Association lvlanager shall have no personal liabiliry
with respect to any contract or other commitment made by them, in good faith. with respect to the
Subdivision or Common Facilities or otherwise, on behalf of the Association, and the Association
qhall indemniff. save and tbrever hold such Declarants or any Association Manager free and
harmless against any and all liabiliqv to any other on account of any such contract or commitment.
Any right to indemnification provided for herein shall not be exclusive of any other rights to which
Declarants or any Association lvlanager may be entitled in this regard.
3. Deleqation of Use. Any Lot Orvner may delegate. in accordance with the Rules and
Regulations of the Association, his or her right of use and enjoyment of the Common Facilities to
tenants and social or business invitees.
4. Owner's Risht to Ingress. Eeress and Support. The Association, each Lot Owner
and any tenant or invitee of a Lot Owner shall have the right to ingress and egress over, upon and
across the Common Facilities necessary for access to his, her or its Lot.
5. Easements for Utilities. Etc. Slrbject to the limitations below set forth. there is
hereby reserved to the Association, through Owners Action, the power to grant specific, legally
described easements across, over and under the Subdivision for ingress, egress. installation,
replacing, repairing and maintaining master television antenna systems, cable systems, security and
similar systems and all utilities, including, but not limited to. water. se\,vers. telephones and
electricity. Such easements shall be granted in conformance with, and located as provided upon.
the Plat of the Subdivision. The easements provided for in this Section shall in no way adversely
affect any other recorded easement in the Subdivision.
6. Severability. Invalidation of any one of these covenants or restrictions by judgment
or court order shall in no way affect any other provisions which shall remain in full force and effect.
7. Perpetuities. If any of the covenants, conditions and restrictions of this Declaration
shall be unlawfui, void or voidable for violation of the rule against perpetuities, then such provisions
shall continue only until twenty-one (21) years after the death of the longest lived member of the
presently constituted Board of County Commissioners of the County of Garfield, State of Colorado.
8. Non-Waiver. The failure of Declarants, the Association, the Association Manager,
or a Lot Owner to object to any breach of or failure to comply with the provisions of this Declaration
or any Rules and Regulations by a person subject thereto shall in no event be deemed a waiver of
any right to object to the same and to seek compliance therewith at any time.
9. Captions. Article and section captions, headings or titles inserted throughout this
Declaration are intended solely as a means of convenience and reference and in no way shall such
captions, headings or titles define, limit or in any way affect any of the substantive terms and
provisions of this Declaration.
10. Context. Whenever the context requires. any pronoun used herein shail be
deemed to mean both the feminine and masculine gender. and the singular shall be deemed to also
encompass the corresponding ph,rral.
' IN WITNESS WHEREOF, tlr.e undersi{rned
lts day of J u,-'e 1 995.
STATE OF COLORADO )
) ss.
COLINTY OF GARFIELD )
The foregoing instrument was acknor,vledged before me this ttt day of
1995 by Wayne Rudd and Susan J. Rudd. the Declarants.
MTNESS my hand and oft-rcial seal.
My commission expires:j - ?( -?(.
>L,--*{a^e*-
Deciarants have ex this Declaration this
Susan J. Rudd
6r*tr.Uf susaru i
I r,ar.r cLB/E i
w"w
Notary Public
DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS FOR
EVERGREEN COMMERCIAL CENTER SUBDIVISION
THIS Declaration of Covenants, Conditions and Restrictions for Evergreen Commercial
Center Subdivision (hereafter the "Declaration") is made this day of ,1995,by
Wayne Rudd and Susan J. Rudd (hereafter referred to as the "Declarants").
RECITALS
WHEREAS, Declarants are the owners of that certain real property known as Evergreen
Commercial Center Subdivision as described on a plat thereof recorded at Reception No. _
of the records of Garfleld County, Colorado (the "Plat"), together with all water and water rights,
easements and rights of way appurtenant to or used upon or in connection with said subdivided
lands, and which subdivision is comprised of four (4) lots (the "Lots" or "Lot"), an Outlot comprised
of Parcels B, C, D and E on the Plat (hereafter the "Outlot"), and certain other common facilities
(collectively the "Subdivision"); and
WHEREAS, Declarants desire to create an unincorporated non-profit association pursuant
to the Colorado Uniform Unincorporated Non Proht Association Act, Colorado Revised Statute 7-
30-101 et seq., to be known as the Evergreen Commercial Center Subdivision Owners Association
(hereafter the "Association") for purposes of owning, maintaining and administering the Outlot and
other common facilities (collectively the "Common Facilities") as hereafter described, the members
of which Association shall be the owners of the individual Lots (the "Lot Owners") and which
Association shall also administer and enfbrce the covenants, conditions and restrictions herein set
forth and collect and disburse the assessments and charges hereinafter created; and
WHEREAS, Declarants desire to provide a flexible and reasonable procedure for the overall
development of the Subdivision, and to establish a method fbr the administration, maintenance,
preservation, control, use, and enjoyment of the Subdivision.
DECLARATION
NOW THEREFORE, Declarants hereby declare that all of the individual or collective Lots
comprising the Subdivision shall be held, transferred, sold, conveyed and occupied subject to the
following covenants, conditions and restrictions which are established for the purpose of protecting
the value and desirability of the Subdivision and which shall run with title to the Lots and be binding
on all owners or other parties having any right, title or interest in the Subdivision.
ARTICLE I
DE,FINITIONS
1. Annual Budget. "Annual Budget" shall mean the calendar year estimates of
Association expenses and expenditures upon which the Annual Assessment shall be based, which
budget shall be prepared by the Association Manager.
2. Annual Meeting. "Annual Meeting" shall mean the meeting of all members of the
Association to occur once a year for the primary purposes of approving the Annual Budget and
selecting the Association Manager, but at which meeting any other business matters of the
Association may be raised and addressed.
3. Annual and Special Assessments. "Assessments" shall mean all assessments,
Annual and Special, for Common Expenses of the Association, and all installments thereof, with
interest thereon and costs of collections, including reasonable attorney's fees.
4. Association. "Association" means the Evergreen Commercial Center Subdivision
Owners Association, a Colorado unincorporated nonprofit association whose members shall be the
Owners of Lots 1 through 4 of Evergreen Commercial Center Subdivision.
5. Common Expenses. "Common Expenses" shall mean the expenses incurred by the
Association under the provisions of this Declaration and which are payable by the Lot Owners upon
assessment.
6. Association Manager. "Association Manager" shall mean a person who shall be
a Lot Owner and Member of the Association, and who shall be responsible for preparing the Annual
Budget, collecting Annual and Special Assessments, disbursing funds for Common Expenses,
calling special meetings and otherwise managing the administrative affairs of the Association.
7. Common Facilities."Common Facilities" shall mean all real property,
improvements thereto, and personal property now or hereafter owned by the Association through
dedication, conveyance, or assignment by the Declarants or acquired by the Association through
Owners Action for the common use and enjoyment of all Lot Owners, said Common Facilities
including but not limited to, the Outlot, all designated roads and road improvements, wells, well
permits, water rights, water contracts, roadway, access and utility easements, utilities, structures and
pipelines which provide service to or benefit the Subdivision.
8. Declarants. "Declarants" shall mean Wayne G. Rudd and Susan J. Rudd, their heirs,
devisees, personal representatives, successors and assigns.
9. Declaration. "Declaration" shall mean the covenants, conditions, restrictions and
all other terms or provisions set forth in this document as the same is recorded in the records of
Garheld County, Colorado, and as the same may be amended from time to time in accordance with
the provisions hereof, with such amendments being likewise recorded.
10. Lot. "Lot" shall mean each of Lots 1, 2,3 and 4 of the Subdivision.
1 1. Lot Owner. "Lot Owner" means the person, persons, entity or entities who or which
together shall comprise the record owner of fee simple title to aLot.
12. Member. "Member" shall mean a person or entity which, by virtue of their status
as a Lot Owner, is deemed to enjoy the membership privileges and responsibilities in the
Association.
13. Owners Action. "Owners Action" shall mean a written statement of action to be
taken by the Association which statement shall be executed by no less than three (3) Members or
their respective authorized representatives.
14. Outlot. "Outlot" shall mean that portion of the Subdivision comprised of Parcels B,
C, D and E as depicted on the Plat.
15. Rules and Regulations. "Rules and Regulations" shall mean the rules, regulations,
guidelines, policies and standards as may be adopted and approved by Owners Action as provided
in this Declaration for the use, operation, maintenance, and administration of the Common Facilities.
ARTICLE II
PROPERTY RIGHTS AND USE OF PROPERTY
1. Lots. The Lots shall be used only for lawful purposes consistent with the zoning
regulations of Garfield County, Colorado.
2. Common Areas and Facilities. Subject to the limitations set forth in this Declaration
and any Rules and Regulations adopted by the Association pursuant to the provisions of this
Declaration, each and every Lot Owner, tenant, lessee or other occupant of a Lot shall have the right
to the use, enjoyment and benefit of the Common Facilities of the Subdivision.
3. Appurtenance of Interests. Any legal or beneficial interests in the Common Facilities
which inure to a Lot Owner by virtue of such ownership are appurtenant to the Lot owned, with or
without specific reference to such appurtenance in any deed which may convey the Lot. For
purposes of general ad valorem property assessment and taxation, said interest in such Common
Facilities shall be considered apart of the Lot andtaxes uponthe Common Facilities shall be
assessed against each Lot and paid in equal proportions of one-quafier (114) by the Owner of each
Lot.
4. Governance of Subdivision. All of the authority regarding the operation,
maintenance, repair, administration and control of the Common Facilities shall be vested in the
aJ
Declarants until such time as the first of the four (4) individual Lots are conveyed. Thereafter, the
Lot Owners shall have the right to membership in said Association and the right to participate in the
governance of the Subdivision and all of its Common Facilities as said rights are more fully
described in this Declaration.
5. Waiver of Right to Panition. No Re-subdivision of Lots. Each Lot Owner
irrevocably waives his right to statutory partition of the Common Facilities. No Lot shall be further
subdivided by any Lot Owner; and no Lot shall be conveyed or otherwise transferred by any Owner
thereof other than in its entirety including appurtenances thereto; provided, however, that this
provision shall not be construed to prevent conveyances to adjust cofirmon boundaries. The Lot
Owner of Lot 3 of the Subdivision may, in addition to a commercial structure, maintain one four (4)
unit residential dwelling building on Lot 3 (hereafter the "Fourplex"). The Fourplex may be leased
in whole or in part by said Lot Owner for residential dwelling purposes; provided, however, that the
Fourplex and the individual units of the Fourplex shall not be sold or conveyed separate from Lot
3, and, pursuant to the restrictions of this section, no re-subdivision of Lot 3 or the Fourplex shall
be allowed.
6. Water Meters. Each Lot shall have a separate water meter installed for purposes of
assessing each Lot on a monthly basis for water actually used for the benefit of said Lot. In addition
to other assessments herein provided, statements for such water charges will be mailed monthly to
each Lot Owner at the address of such Lot Owner as the same shall be maintained in the records of
the Association.
7. Enforcement. The Association, by Owners Action, or any Lot Owner shall have the
right to enforce the covenants, conditions and restrictions contained in this Declaration by any legal
or equitable means necessary and available including actions for damages and injunctive relief. In
the event of any such action, the Association or Lot Owner or Owners, if they prevail in said action,
shall be entitled to receive reasonable attorneys fees and costs from the person or persons found to
be in violation of this Declaration.
ARTICLE III
MEMBERSHIP. VOTING RIGHTS AND OWNERS ACTION
1. The owner of record of fee simple title to each Lot shall be a Member of the
Association. For purposes of this Declaration, if a Lot is owned by more than one person, all of the
persons owning an interest in fee simple title to the Lot shall, in the aggregate, be the Lot Owner
thereof and such multiple persons comprising the Lot Owner shall, among themselves, designate one
of their number to participate in, and represent the others, in any Association affairs or Owners
Action as herein described. For purposes of participation in Owner Actions and any other voting
matters in the Association, a Member owning more than one Lot shall be entitled to one vote for
each Lot owned.
2. Until such time as the first conveyance of title to a Lot in the Subdivision has
occrured, no Association shall exist and the Declarants shall have sole and exclusive control over
the management of the Subdivision and the Common Facilities. Upon the first conveyance of a Lot
by the Declarants, the Association shall, without any further act, come into existence, be formed and
established and vested with the rights, duties and obligations of the entity created for the pu{poses
described herein.
3. The ownership, operation, management, maintenance and repairs of the Common
Facilities and all Association actions taken with respect thereto shall be undertaken and performed
pursuant to Owners Action. The Association shall have the exclusive power and authority to manage
any affairs regarding the Common Facilities, and such power and authority shall include, without
limitation whatsoever, the following authority :
A. To own, purchase, lease, install, operate, maintain, repair and replace all or
any part of the Common Facilities;
B. To adopt such Rules and Regulations as are necessary and appropriate for
goveming the use and benefits of the Common Facilities;
C. To make such amendments or modifications to this Declaration and any Rules
and Regulations as shall be deemed necessary and appropriate;
D. To establish and oversee the Annual Budget, for purposes of paying
anticipated and contingent expenses related to the Common Facilities;
E. To make, determine and collect Annual and Special Assessments for the
purpose of paying all Common Expenses. Said Annual Assessments to be determined in accordance
with the establishment of the Annual Budgets and as the same are necessary as Special Assessments
for extraordinary or unforeseen expenses related to said Common Facilities and which were not
included in or provided for under the Annual Budget. All Annual and Special Assessments shall
be made on a ratable basis among the Lot Owners, with a one-fourth (1/4) shale of the total
assessment to be paid by the Owner of each Lot;
F. To elect at the Annual Meeting by Owners Action, an Association Manager
to act, during the upcoming year, on behalf of the Association and in such capacity to exercise all
powers of the Association delegated to him by such Owners Action;
G. To enforce, by Owners Action, the provisions of this Declaration and any
Rules and Regulations adopted by the Association, as provided herein, either through Owners Action
or by delegation of such enforcement authority to the Association Manager;
H. To establish a date certain for the Annual Meeting for the ensuing year and
to establish Special Meetings as appropriate and necessary. Written notice of the date, time and
place of all Annual and Special Meetings, shall be given to each Member by mailing such notice to
each such Member at least 20 days prior to the date of such Annual or Special Meeting at the address
of each respective Member as the same shall be maintained in the records of the Association; and
I. To take any other action necessary or appropriate to carry out the goals herein
expressed and to properly maintain the Common Facilities for the use and benefit of the Lot Owners.
ARTICLE IV
COMMON FACILITIES
The Common Facilities which shall be owned by the Association include, but are not limited
to, the Outlot, all designated roads and improvements thereto shown on the Plat of the Subdivision,
wells, well permits, water and water rights, access, ingress, egress, emergency access, landscape and
drainage and utility easements and improvements, and off site road easement designated as Access
Easement (Parcel F) on the Plat, established by that certain Easement Agreement recorded at
Reception No. 422198 in Book 801 at Page 64 of said records as amended by that certain First
Amendment to Easement Agreement recorded at Reception No. 424867 in Book 807 at Page 303.
The Association shall maintain and keep in good repair the Common Facilities (and any personal
property and improvements associated therewith) including all paved areas, all landscaped areas, and
any other improvements to or upon the Common Facilities. Such maintenance to be funded through
the Annual and Special Assessments as provided herein, and shall include, but not be limited to,
periodic inspection and appropriate treatment of water systems, septic systems, drainage and storm
water retention systems; maintenance, repair, and replacement, of all other structures, and
improvements situated upon the Common Facilities ( including filling all potholes that may develop
in the roads), all to the end that the safety, appearance and quality of the Common Facilities shall
permanently endure. All maintenance functions required to be performed by the Association may
be contractually delegated to a managing agent, including a property management firm.
ARTICLE V
INSURANCE AND CASUALTY LOSSES
1. Insurance. The Association Manager shall have the duty and authority to
obtain insurance for all insurable aspects of the Common Facilities against loss or damage by fire
or other hazards, including extended coverage, vandalism, and malicious mischief. This insurance
shall be in an amount sufficient to cover the full replacement cost of any repair or reconstruction in
the event of damage or destruction from any such hazard. The Association Manager shall also
obtain an adequate public liability policy insuring the Association, and its individual Members for
all damage or injury caused by the negligence of the Association or any of its Members, the
Association Manager or other agents of the Association.
2. Repair and Reconstruction. If the damage or destruction for which the
insurance proceeds are paid is to be repaired or reconstructed and such proceeds are not sufficient
to defray the cost thereof, the Association Manager may, without the necessity of any Owners
Action, levy a Special Assessment to cover the amount of deficiency. If the funds available from
insurance exceed the cost of repair, such excess shall be retained to the benefit of the Association.
ARTICLE VI
CONDEMNATION
Whenever all or any part of the Common Facilities shall be taken (or conveyed in lieu of and
under threat of condemnation, by the Association through Owners Action) by any authority having
the power of condemnation or eminent domain, each Lot Owner shall be entitled to notice thereof
and to participate in the proceedings incident thereto, unless otherwise prohibited by law. The
award made for such taking shall be payable to the Association and used for its purposes herein
enumerated.
ARTICLE VII
ASSESSMENTS
1. Annual and Special Assessments. All Annual and Special Assessments, together
with interest at the legal or statutory rate, costs, and reasonable attorneys' fees, if any, shall be a
charge on the land and shall be a continuing lien upon the Lot against which each Annual or Special
Assessment and the aforesaid related costs and expenses, is made.
Each such Annual or Special Assessment, together with interest, costs and reasonable
attorneys'fees, if any, shall also be the personal obligation of the person who was the Owner of a
particular Lot at the time the Assessment was made.
All such Annual and Special Assessments shall be due and payable within thirty (30)
days following the date upon which the Association Manager shall have mailed notice of such
Annual or Special Assessment to the Lot Owner obligated to pay the assessment at the address of
said Lot Owner as maintained in the Association records.
2. Liens and Foreclosure of Liens. All Annual and Special Assessments shall
constitute a lien on each Lot prior and superior to all other liens, except (i) all ad valorem taxes,
bonds, assessments, and other levies which, by law, would be superior thereto, and (ii) the lien or
charge of any first mortgage of record (meaning any recorded mortgage or deed of trust with first
priority over other mortgages or deeds of trust) made in good faith and for value.
Suit to recover a money judgment for unpaid Common Expenses, interest and
attorneys' fees shall be maintainable without fbreclosing or waiving the lien securing the same.
Any lien created pursuant to the provisions of this Article VII may be foreclosed
under the laws of the State of Colorado in the same manner as a moftgage.
3. Computation of Annual Budget and Annual Assessment. It shall be the duty of the
Association Manager at least thirty (30) days prior to the Annual Meeting, at which the budget shall
be presented to the Association's membership, to prepare a budget covering the estimated costs, and
appropriate reserve fund amounts for operating the Association during the coming year. The
Association Manager shall cause a copy of the budget, and the estimated amount of the Annual
Assessments deriving therefrom and to be levied against each Lot fbr the following year, to be
delivered to each Lot Owner with notice of the Meeting.
ARTICLE VIII
GENERAL PROVISIONS
1. Tenn. The covenants, conditions and restrictions of this Declaration shall run with
title to the Lots and shall inure to the benefit of the Lot Owners and shall be enforceable by the
Association, its Association Manager or any of the Lot Owners.
2. Indemnification. The Association shall indemnify Declarants and any persons acting
in the capacity of Association Manager against any and all expenses, including attorneys' fees and
costs, reasonably incurred by or imposed upon said Declarants or Association Manager in connection
with any action, suit or other proceeding (including settlement of any suit or proceeding) to which
the Declarants or Association Manager may be a party by reason of any actions, contracts,
agreements or other activity undertaken by the Declarants or Association Manager before or after
the making of this Declaration. The Declarants or Association Manager shall not be liable for any
mistake of judgement, negligent or otherwise, except fbr willful misfeasance, malfeasance,
misconduct or bad faith. The Declarants or Association Manager shall have no personal liability
with respect to any contract or other commitment made by them, in good faith, with respect to the
Subdivision or Common Facilities or otherwise, on behalf of the Association, and the Association
shall indemnify, save and forever hold such Declarants or any Association Manager free and
harmless against any and all liability to any other on account of any such contract or commitment.
Any right to indemnification provided for herein shall not be exclusive of any other rights to which
Declarants or any Association Manager may be entitled in this regard.
3. Delegation of Use. Any Lot Owner may delegate, in accordance with the Rules and
Regulations of the Association, his or her right of use and enjoyment of the Common Facilities to
tenants and social or business invitees.
4. Owner's Right to Ingress. Egress and Support. Each
invitee of a Lot Owner shall have the right to ingress and egress over,
Facilities necessary for access to his, her or its Lot.
Lot Owner and any tenant or
upon and across the Common
5. Easements for Utilities. Etc. Subject to the limitations below set fbrth, there is
hereby reserved to the Association, through Owners Action, the power to grant specific, legally
described easements across, over and under the Subdivision fbr ingress, egress, installation,
replacing, repairing and maintaining master television anterura systems, cable systems, security and
similar systems and all utilities, including, but not limited to, water, sewers, telephones and
electricity. Such easements shall be granted in conformance with, and located as provided upon,
____)
the Plat of the Subdivision. The easements provided for in this Section shall
affect any other recorded easement in the Subdivision.
way adversely
6. Severability. Invalidation of any one of these covenants or restrictions by judgment
or court order shall in no way affect any other provisions which shall remain in full force and effect.
7. Perpetuities. If any of the covenants, conditions and restrictions of this Declaration
shall be unlawful, void or voidable for violation of the rule against perpetuities, then such provisions
shall continue only until twenty-one (21) years afler the death of the longest lived member of the
presently constituted Board of County Commissioners of the County of Garfield, State of Colorado.
8. Non-Waiver. The failure of Declarants, the Association, the Association Manager,
or a Lot Owner to object to any breach of or failure to comply with the provisions of this Declaration
or any Rules and Regulations by a person subject thereto shall in no event be deemed a waiver of
any right to object to the same and to seek compliance therewith at any time.
9. Captions. Article and section captions, headings or titles inserted throughout this
Declaration are intended solely as a means of convenience and reference and in no way shall such
captions, headings or titles define, limit or in any way affect any of the substantive terms and
provisions of this Declaration.
1 1. Context.Whenever the context requires, any pronoun used herein shall be
deemed to alsodeemed to mean both the feminine and masculine gender, and the singular shall be
encompass the corresponding plural.
IN WITNESS WHEREOF, the undersigned Declarants have executed this Declaration this
day of ,1995.
Wayne Rudd
Susan J. Rudd
STATE OF COLORADO )
) ss.
COLINTY OF GARFIELD )
The foregoing instrument was acknowledged before me this
1995 by Wayne Rudd and Susan J. Rudd, the Declarants.
WITNESS my hand and official seal.
day of
My commission expires:
Notary Public
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