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HomeMy WebLinkAboutMemorandum of Understanding 12.13.2016Memorandum of Understanding This fs a Memorandum of Understanding between the Ranch at Roaring Fork Homeowners Association, Inc. (the "Association"), Anne Cooley individually ("Cooley'') and Cooley and Marcy Knelper acting on behalf of themselves and Owners at the Ranch at Roaring Fork (the "Ranch") who currently or in the future keep one or more horses at the Ranch, as described in more detail below (the "Horse Owners''). Background The Ranch is a planned common interest community located in Carbondale, Colorado. It is subject to the Second Amended Declaration of Covenants, Conditions, Limitations, Restrictions, Reservations, Liens and Charges for Ranch at Roaring Fork recorded in the public records of Garfield County at Reception No. 364004, as amended (the "Declaration;" capitalized terms used in this Memorandum that are not otherwise defined herein have the meanings specified in the Declaration). Among other common elements, the Association owns the Common Recreation Reserve that includes pastures, open space, trails, and facilities and improvements available for use to all Owners, including the Horse Owners. The current Horse Owners keep horses at the Ranch and anticipate that they and other present or future Owners will want to do so for the indefinite future. The current Horse Owners generally, and Cooley in particular, desire to have the Association construct on the Association's Common Recreation Reserve a horse barn (the "Horse Barn") for use and enjoyment by present and future Horse Owners. Cooley has offered to pay for the full costs of construction and the Horse Owners have agreed that they will be responsible for all ongoing costs of maintenance, repair, replacement and operation of the Horse Barn. Construction of the Horse Barn in accordance with this Memorandum was submitted to a vote of the Association's Owners, in accordance with the Declaration, and was approved by the requisite vote of Owners. The Association, Cooley, and the Horse Owners want to memorialize their understandings and agreements, to make certain that expectations are clear, understood and agreed. Those understandings, agreements and expectations follow. 1. Horse Barn. Upon construction, the Horse Barn shall be owned by the Association as a common element It is expected that the Horse Barn shall contain approximately 4 stalls and approximately 1,440 square feet The Horse Owners submitted plans for the Horse Barn to the Association's Architectural Control Committee, and the Committee recommended approval. Reference is made to the application submitted to the Committee 1 and the accompanying materials. The Barn will be constructed in all material respects in accordance with that application and accompanying materials. 2. Construction Contract The Association will enter into a construction contract with a general contractor reasonably acceptable to the Association, to Cooley, and to their respective professional advisors for the construction of the Horse Barn (the Construction Contract). 3. Payment of Costs. a. Cooley has contracted with Barn Pros, Inc. for a "Cimarron 60" package, as set forth on the attached 12.6.15 Invoice. Cooley has paid 100% of the Barn Pros costs for that package. She wilJ assign to the Association, as a capital contribution, all of her rights to that package, including her rights under the related Contract and other documentation with Barn Pros. The Association, however, will not assume any liabilities or obligations to Barn Pros. b. Cooley will pay to the Association, in advance, as a capital contribution, one hundred percent (100%) of the projected costs under the Construction Contract The Association will place the amounts so received by Cooley in a separate dedicated bank account, wflJ not commingle those funds with other Association funds, and will use the amounts so paid by Cooley solely to fund the construction costs. c. Cooley also will reimburse the Association, promptly on demand, for the Association's reasonable professional fees incurred in connection with the Construction Contract (including attorney fees), construction supervision, and for any change orders approved in writing by the Association and Cooley (the parties agree there will be no change orders unless approved by both the Association and Cooley), as well as for any and all cost overages. 4. Plans and Specifications. Detailed plans and specifications wilJ be provided by Cooley and/or the agreed general contractor as soon as reasonably possible and shall be subject to the Association's reasonable approval, not to be unreasonably delayed, withheld or conditioned. 5. Permits and Approvals. The Construction Contract will call on the general contractor to obtain on behalf of the Association all required governmental permits and approvals for all aspects of the construction. 6. Form of Construction Contract The Construction Contract will be in a form reasonably satisfactory to the Association and generally customary for contracts of such nature In the Roaring Fork Valley. It will include, among others, at least a one year warranty from the general contractor on all work performed pursuant to it 2 - 7. No Refunds or Reimbursements. Cooley and the Horse Owners understand, acknowledge and agree that no portion of the capital contributions and reimbursements paid by Cooley (and others if applicable) to cover the costs incurred by the Association in connection with the Horse Barn shall be subject to reimbursement or repayment by the Association for any reason whatsoever. 8. Mana&Jne Use and Enioyment of Horse Barn. The Association prefers, if the Horse Barn is constructed, that the Horse Owners agree among themselves on rules and practices for sharing the use and enjoyment of the Horse Barn and the apportionment among the Horse Owners of any related costs. However, Cooley and the Horse Owners acknowledge and agree that the Association (through the Board) has the right to establish fair and reasonable rules, procedures and requirements for the use of the Horse Barn and that failure by Cooley and the Horse Owners to abide by such rules and procedures will trigger the provisions of Section 14, below. To the extent requested by the Association from time to time, the parties shall memorialize in writing any such rules, procedures and requirements. 9. Maintenance and Otber Expenses. The Horse Owners acknowledge and agree that all incremental costs to the Association resulting from owning, operating. insuring. maintaining, repairing and replacing the Horse Barn (including but not by way of limitation things such as utility costs, insurance premiums, periodic maintenance, incremental grounds keeping and snow removal) will be subject to reimbursement by the Horse Owners through an increase In their monthly fees or in such other manner as may be determined from time to time by the Association in its reasonable discretion. 10. Association's Remedies on Default The Horse Owners and Cooley agree that if they fail to meet their financial obligations and commitments under this Memorandum within thirty (30) days after notice from the Board specifying with reasonable particularity the detail(s) of that failure and the steps reasonably necessary to cure or remedy the same (provided, however, that for a situation or circumstance that cannot reasonably be cured with due diligence within thirty (30) days, the period allowed to effect a cure shall be extended for such time as is reasonably necessary to effect a cure with due diligence so long as the Horse Owners and/or Cooley proceed promptly to cure or remedy the failure and diligently pursue the same to completion) the Board will have the right to make such adjustments to the use of the Horse Barn as the Board In its sole discretion deems appropriate and proper under all the circumstances, up to and including repurposing use of the Horse Barn for an entirely different purpose. The parties acknowledge that this provision gives extremely broad power and authority to the Board with respect to use of the Horse Barn in a circumstance where the Horse Owners 3 have failed to keep the commitments they have made regarding payment of all financial costs associated with the Horse Barn (that is, to ensure that all such costs are borne by the Horse Owners and not by Ranch owners at large). 11. Governin l: w i · i m C fo ce . This Agreement shall be governed by the laws of the State of Colorado. Any legal action brought in connection with this MOU or any other agreements related to the Horse Barn shall be brought in the District Court of Garfield County, Colorado. In the event of a dispute under this MOU or any other agreement related to the Horse Barn, the prevailing party in any resulting or related litigation shall be entitled to reasonable expenses, including attorney fees, to the extent the court with jurisdiction deems an award of such expenses and fees just and reasonable under all circumstances. IN WITNESS WHEREOF the parties have signed this Memorandum of Understanding in one or more copies, each of which shall be considered , n 01~glnal ~tall of which together shall constitute one and the same document, tl1i ·~ca y of ~h.fQf 6. ~'1-t /\v Anne Cooley, individually Ranch at Roaring Fork Homeowners Association, Inc. By : _S{L« .. 1w:f \ \ ~ ) ~ (' ( Its President of the Horse Owners --~ ·._---\._ and ____ ,.......___._ __ _ Marcy Krieipcr 4