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HomeMy WebLinkAbout05.0 Restrictive Covenants & Cost Sharing Agreement1111 NCilkftlieiMli,fil1R411441hilti LiI"i 11 III Reception#: 903165 02(12I221A 03:33:37 PM Jean Alberioo 1 of 6 Rao Fee:$36.00 Doo Fee:0.00 GARFIELD COUNTY CO MOUNTAIN SHADOW PLACE SUBDIVISION RESTRICTIVE COVENANTS AND COST SHARING AGREEMENT THIS RESTRICTIVE COVENANTS AND COST SHARING AGREEMENT (the "Agreement") is entered into this Z 7 day of -7.1346/4y , 201 eby and between CMH !tomes, Inc. ("Developer"), whose address is 5000 C1a ton Road, Maryville, TN 37804, WITNESSETH: WHEREAS, Developer owns three parcels of real property in Garfield County, Colorado referred to as Lot 1, Lot 2, and Lot 3 as depicted and described on the Final Plat for the Mountain Shadow Place Subdivision, recorded in the public records of Garfield County, Colorado at Reception No. 9 69 0/63_ (the "Final Plat"); WHEREAS, as part of approval for development, Developer entered a Subdivision Improvement Agreeyhent, recorded in the public records of Garfield County, Colorado at Reception No. _ 7C�3%6 ...._ (the "SIA"); WHEREAS, Lot 1, Lot 2, and Lot 3 (collectively the "Lots") are accessed by an access easement extending from Mountain Shadow Drive, as depicted on the Final Plat (collectively, the "Access Easement"); WHEREAS, as depicted on the Final Plat, there are parking easements dedicated to each individual Lot for the use of the respective Lot; WHEREAS, further, there are common utilities serving the Lots, as depicted on the Final Plat and described in the SIA, including but not limited to the Sewer Easement ("Utilities"); WHEREAS, a requirement of the Mountain Shadow Place Subdivision as approved by Garfield County was recordation of an Agreement to address cost sharing, restrictive covenants, and the like; WHEREAS, Developer wishes to set forth and memorialize the rights and obligations of current and future owners and assigns of the Lots regarding operation, maintenance, repair, replacement, and improvement of portions of the Access Easement, utilities, and other issues; and WHERAS Developer also wishes to sct forth certain restrictive covenants to encumber the Lots, as required by Garfield County. NOW, THEREFORE, in consideration of the foregoing promises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby state, covenant and declare as follows: 1. Recitals. The foregoing recitals are hereby incorporated by this reference. (p 1111 Kid A1/21, Iratiliffis10 /1111 Recepti❑nN: 9031.65 202 of 5 RRec 03.33:37 PM Fee:0.001GARFIELD COUNTY CO 2. Dedication of Easement. The Access Easement for the access and for the use and benefit of the Lots is depicted on and created pursuant to the Final Plat. The provisions of the Final Plat related to such easement are incorporated herein. The Access Easement may expressly be used by the public for access to Lot 1, Lot 2, and Lot 3. 3. Cost Sharing — Access Easement. The owners of Lot 1, Lot 2, and Lot 3 shall each pay one-third (1/3) of the costs of operation, maintenance, repair, replacement, and improvement of that portion of Access Easement and any improvements located thereon. Approval of any operation, maintenance, repair, replacement, and improvement activity shall be made in advance by the owners of at least two (2) of the Lots. 4. Cost Sharing - Utilities. The Utilities, including any easements therefor, are located on the Lots and for the use and benefit of the Lots, as depicted on the Final Plat and described in the SIA. a. The cost of any maintenance, repair, replacement, or improvement of the Utilities that benefits all of the Lots shall be allocated equally between the Lots (e.g. waterline from the property line to each service line branching from the main). b. Maintenance, repair, replacement, and improvement of the Utilities benefitting any single Lot (either Lot 1, Lot 2, or Lot 3) shall be the responsibility of the owner of the Lot served and the cost thereof shall be allocated to that Lot only (e.g. water line from main to the Lot; individual sewer line). 5. Parking on Lots and Parking Easements. The Final Plat depicts parking for each Lot and creates easements related to parking for each lot, specifically: "Parking Easement Dedicated to Lot 1; "Parking Easement Dedicated to Lot 2;" and "Parking Easement Dedicated to Lot 3." The owner of a Lot shall be responsible for the maintenance, repair, replacement, and improvement, and costs thereof, of the parking spaces located on such lot and for the parking space dedicated to such lot pursuant to a parking easement depicted on the Final Plat. 6. Revegetation. Any portion of the Lots that is disturbed due to such maintenance, repair, replacement, and improvement shall be promptly compacted and revegetated, including replacement of size and type of trees, grasses and other landscaping, with such costs associated as the cost of the work causing such disturbance was allocated. 7. Payment Terms. Any payment due to any party subject to this Agreement shall be due and payable, in full, thirty (30) days from notice thereof. If payment is not received by said due date, the party or parties to whom said payment is owned may file a lien for the amount owed against the Lot owned by the party or parties in arrears. Said lien may be foreclosed in any manner provided for by law, and recording of this Agreement in the 2 1111FeIrdriliN1+111,41011, %I1'� '�4rh 11111 Reception#: 003155 02/12/2018 03:33:37 PM Jean Alberloo 3 of 8 Rec Fee.$38 CO Doo Fee:0.00 GARFIELD COUNTY CO real property records of Garfield County shall be the only act necessary to perfect filing of said lien. 8. Agreement to Indemnify. To the extent permitted by applicable law, the owners of the Lots (each an "indemnifying party") agree to indemnify, defend and hold the other Lot owner (each an "indemnified party") harmless from and against all losses, claims, demands, liabilities, injuries, damages and expenses, including, without limitation, reasonable attorneys' fees and court costs, that an indemnified party may suffer or incur as a result of the use, occupancy and possession of the Access Easement by the indemnifying party, its agents, visitors, invitees, licensees, successors and assigns or by reason of breach of this Agreement. 9. Other Covenants, Conditions, and Restrictions. Each of the Lots shall be subject to the following covenants, conditions, and restrictions: a. Wildlife Control: i. Residents shall use bear -proof trash containers, or create a bear- proof centralized trash pick-up location. ii. New residents are to follow "bear aware" practices including: feeding pets indoors and storing pet food indoors, cleaning BBQ grills after use, removing bird feeders during summer months and/or at night, only placing trash out on morning of pick-up (unless in a bear -proof container), not composting food waste outside (unless in a bear proof container) etc iii. Planting of fruit, berry, and nut producing trees and shrubs in the landscaping shall be prohibited. b. Noxious or Hazardous Endeavors: i. Potentially hazardous materials such as paints, oils, pesticides, or fertilizers should be stored properly to prevent them from entering groundwater supplies. As well as owners shall not use noxious or hazardous materials on Lots. ii. Noxious and hazardous defined as any item causing permanent harm to humans, animals or soil. 10. Covenant Running With the Land. Each and every obligation of each owner of the Lots contained herein is made for the benefit of the other. All of the provisions of this Agreement shall be deemed a covenant running with the land pursuant to applicable law, and shall be binding upon the successors and assigns of all future owners of the Lots. A Lot owner's rights hereunder may not be conveyed separately from his or her Lot, and the 3 1111 l+VNIV14ii1441gli+llfi 1111 Reoeptiontt: 9031.65 92f1212aie 03.33,87 PM Jean Rlberico 4 of 6 Rao Fee:$38.00 Coe Fee:0.00 GPRFIELC COUNTY CO conveyance of a Lot shall automatically convey as well such Lot owner's rights and obligations under this Agreement. Notwithstanding the foregoing, if any said owner sells all or any portion of its interest in property subject to this Agreement, such party shall thereupon be released and discharged from any and all obligations in connection with the property sold by it arising under this Agreement after the sale and conveyance of title but shall remain liable for all obligations arising under this Agreement prior to the sale and conveyance of title. The new owner of any such Lot or portion thereof (including, without limitation, anyone who acquires its interest by foreclosure, trustee sale or otherwise) shall be liable for all obligations arising under this Agreement with respect to such property or portion thereof after the date of sale and conveyance of title. This Agreement, and any amendments thereto, shall be recorded in the Garfield County Clerk and Recorder's Office. 11 Non -Merger of Easement. This Agreement is entered as a requirement of subdivision imposed by Garfield County. Regardless of the current ownership of the Lots, neither theAccess Easement, other easements created by the Final Plat, nor the terms of this Agreement shall be deemed to have merged into the title of the Lots. 12. Remedies. In the event of any violation or threatened violation by any party of any of the provisions of this Agreement, the party not in violation hereof shall have the right to enjoin such violation or threatened violation by proceeding in the District Court of Garfield County. The right of injunction and specific performance shall be in addition to all other remedies set forth in this Agreement or provided by law. 13. Waiver. The failure of a party to insist upon strict performance of any of the provisions contained in this Agreement shall not be deemed a waiver of any rights or remedies that such party may have, and shall not be deemed a waiver of any subsequent breach or default of the performance of any of the obligations contained herein for the same or any other party. 14. Attorneys' Fees. In the event any party initiates or defends any legal action or proceeding to enforce or interpret any of the terms of this Agreement, the prevailing party in any such action or proceeding shall be entitled to recover from the non -prevailing party in any such action or proceeding its reasonable costs and attorneys' fees, including its reasonable costs and attorneys' fees on any appeal. 15. No Partnership Created. The provisions of this Agreement are not intended to create, nor shall they be in any way interpreted or construed to create, a joint venture, partnership, or any other similar relationship between the parties 16. E tappet Certificate. Each party, so long as it has an interest in the property encumbered by this Agreement, agrees within 14 days of receipt of written request from the other party to certify in writing for a respective purchaser or lien holder that this Agreement is in full force and effect, that it has not been amended except as set forth in such certificate and that the other party is not in default of any of the terms, covenants, conditions, or 4 1111k IlP iKVA' IA 11111 Reception#: 9@3165 02112/2018 03:33.37 PN Jan Rlberloo 6 of 8 Rao Fee -$3H.00 Don Fee:0.00 GRRFIELD COUNTY CO agreements contained in this Agreement (or, if a default does exist, specifying the nature of such default). 17. Term. This Agreement shall continue in perpetuity. 18. Notices. All notices to be given hereunder shall be in writing, and may be given, served or made by depositing the same in the United States mail properly addressed, postpaid and registered or certified with return receipt requested or by delivering the same in person to the said authorized representative of such party. Notice deposited in the mail in accordance with the provisions hereof shall be effective unless otherwise stated in this Agreement from and after the third day next following the date post -marked on the envelope containing such notice, or when actually received, whichever is earlier. 19. 1 ieadings. The headings of the various Paragraphs of this Agreement have been inserted for reference only and shall not have the effect of modifying, amending or changing the express terms and provisions of this Agreement. 20. Seveiabilitl'. In any of the provisions of this Agreement or any paragraph, sentence, clause, phrase, word or section, or the application thereof, is in any circumstances invalidated, such invalidity shall not affect the validity of the remainder of this Agreement and the application of such provision in any other circumstances shall not be affected thereby. 21 Entire Agreement. This Agreement shall constitute the entire agreement between the owners of the Lots with respect to the subject matter described herein. No representations or warranties of any nature have been made by any such owner, and no party has entered into this Agreement in reliance upon any such representations or warranties, except as expressly set forth herein. No variations or modifications of, or amendments to, the terms of this Agreement shall be binding upon the parties unless reduced to writing and signed by the parties hereto. 22. Governing Law. It is the intention of the undersigned hereto that all questions with respect to the construction and interpretation of this Agreement and the rights and liabilities of the parties hereunder shall be determined in accordance with the laws of the State of Colorado. Any action related to this Agreement shall be brought in Garfield County, Colorado 5 f+111OrdNititriNE int re viituvreenvVii. Li Ill 111 Reception#: 903165 02/12/2018 G of 6Rec Fee3B $38.00 bocFee:0.00an IGARFIELD COUNTY CO IT WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. CMH Homes By:--- Name:1� if Title: &qR13:-i MALL Date: 1 ki ii 6 STATE OF CuLon-A-0-143 COUNTY OF ) ) ss. Subscribed and sworn to before me this 11\ day of 3mutAm/ 201_, by h awm . as 6.r�ue2a., vel ,2. , of CMH Homes, Inc.. VALERIE A. DOMET NOTARY PUBLIC STATE OF COLORADO NOTARY ID #20044015384 *Commission Expires June 12, 2020 Notary Public NI A - 1..A.4 r5 . On, vi t�- 6