HomeMy WebLinkAbout1.13 Proposed Amendment to A&R DeclarationFIRST AMENDMENT TO
AMENDED AND RESTATED DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
FOR
BIG R COMMERCIAL PARK
IN GARFIELD COUNTY, COLORADO
THIS FIRST AMENDMENT TO AMENDED AND RESTATED DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS FOR BIG R COMMERCIAL PARK
("First Amendment") shall be effective upon recordation and is made as of ,
2020, by Big R Lot Owners Association, Inc., a Colorado nonprofit corporation (the
"Association").
RECITALS
A. The Association was organized any ists to manage the affairs of the Big R
Commercial Park Subdivision ("Subdivision" _ 'q merci., ubdivision located/tn Garfield
County, Colorado.
B. The Subdivision is subj t to that certain , ded and Restated Declaration of
Covenants, Conditions and Restrictions i- Big R Commerc ' ark recorded May 13, 2020, at
Reception No. 935330 in Garfield County, Colo o (the "Restatedclaration").
C. Pursuant to Article XIV of the Restated Declaration, the owner of Lot 1 of the
Subdivision may resubdivide such Lot or condominiumize any buildings within Lot 1 and
incorporate within the Association any such Lots or condominiums created.
D. The Owner of Lot 1 desires to subdivide Lot 1 into two separate Lots identified as
Lot 1 A and 1B on the minor subdivision plat recorded on , 2020, at Reception
No. (the "Lot 1 Plat"), to incorporate Lot 1A and Lot 1B within the Association,
and to amend the Restated Declaration tol1ude appropriate provisions for the two separate
Lots.
may be a
approval of
Association.
Section 15.02 of the stated Declaration provides that the Restated Declaration
d by an instrument executed and acknowledged by Owners evidencing the
ss than sixty-seven percent (67%) of all votes entitled to be cast in the
F. The Owner consents attached hereto as Exhibit A-1 and the certificate of the
Association attached hereto as Exhibit A-2 confirm that the affirmative vote of the requisite
percentage of the votes entitled to be cast have been obtained to amend the Restated Declaration
by this First Amendment.
G. Capitalized terms not otherwise defined in this First Amendment shall have the
meaning set forth in the Restated Declaration.
NOW, THEREFORE, in consideration of the recitals and premises contained herein, the
Restated Declaration is amended as follows:
1. Section 4.05 — Voting Rights. Section 4.05 of the Restated Declaration is deleted
in its entirety and replaced with the following:
4.05. Voting Rights. Appurtenant to ownership of Lots 3 through 10 is one (1)
vote each, Lot 2 is two (2) votes, Lot lA is one and one-half (1.5) votes, and Lot 1B is two
and one-half (2.5) votes. Such votes are for the purpose of all Association matters
regardless of whether one or more persons or entities own such Lot. Votes may not be
voted in fractions. When more than one person holds an interest in the same Lot, all such
Owners shall be members and the vote for each Lot shall be cast as the Owners thereof
agree, but in no event shall more votes be cast for each suc ' Lot than as set forth in the
Restated Declaration. If the Owners of a Lot do not agree o the manner in which their
vote(s) should be cast when called upon to vote, th- - all be treated as having
abstained.
2. Exhibit C. Exhibit C to the Restated
below. All references in the Restated Declaration
mean Exhibit C, as hereby amended.
claraon is amend -
this First Amendment
read as set forth
h.. it C shall
Lot Number
Allocation
1A
0.725%
1B
17.875%
2
14.28%
3
7.14%
7.14%
-07/
7.14%
6
7.14%
dA
7
7.14%
8
7.14%
9
7.14%
#10%,
10 A
7.14%
Section 11.01 a &
b
ctions 11.01(a) and 11.01(b) of the Restated Declaration
are delete eir entirety and repla- -d with the following:
4
) Individual Wells. Groundwater wells may be individually owned,
permitted, and constructed on each of Lots 1A, 1B, and 2 through 10 (referred to as Big R
Wells No. 1 through 10) for water service to the respective Lot in accordance with the
following conditions. Currently, Lots lA and 1B share the Big R Well No. 1, located on
Lot 1B, pursuant to a Well Sharing Declaration recorded with the Lot 1 Plat. The well
permit for said shared well shall be limited to the withdrawal of up to 25 gallons of water
per minute with a maximum of 3.35 acre-feet per year for commercial use inside up to six
units, lawn and landscape irrigation of up to 18,000 square feet, and outside vehicle
washing. Use of water from the shared well by the Owners of Lots lA and 1B shall be
limited to the withdrawal of up to 25 gallons of water per minute and to those uses
authorized above, allocated to each of Lot lA and Lot 1B as follows: (i) Lot 1A:
commercial uses inside two (2) units, irrigation of not more than 6,000 square feet of lawns
Page 2
and gardens, and outside vehicle washing, with maximum annual water use not to exceed
1.12 acre-feet; (ii) Lot 1B: commercial uses inside four (4) units, irrigation of not more
than 12,000 square feet of lawns and gardens, and outside vehicle washing, with maximum
annual water use not to exceed 2.23 acre-feet. The Owner of Lot 1A may drill a new well
on Lot 1A to serve Lot 1A, in which event: (a) the permit for said well shall be limited to
25 gallons of water per minute for the uses and amount allocated to Lot 1 A herein above,
and (b) the Owner of Lot 1B shall be required to re -permit or obtain a new permit for the
well on Lot 1B that is limited to 25 gallons of water per minute and complies with the uses
and amount allocated to Lot 1B herein above.
411111
The permit for Lot 2 shall be limited to the withdrawal of up to 25 gallons of water per
minute with a maximum of 2.24 acre-feet per year for commercial use inside up to four
units, lawn and landscape irrigation of up to 11,850 square feet, and outside vehicle
washing. The permits for Lots 3 through 8 and 10 shall each be limited to the withdrawal
of up to 25 gallons of water per minute with a maximum of 0.96 acre-foot per year for
commercial use inside one unit, lawn and landscape irrigation of up to 8,000 s uare feet,
and outside vehicle washing. The permit for Lot shall b limited to the with rawal of up
to 25 gallons of water per minute with a maxi o 1 Acre-feet for #bmmercial use
inside one unit, lawn and landscape irrigation of up ,000 square feet, and outside vehicle
washing for use on Lot 9 and for rotection/storag by the Association. The Owners
of Lots shall each be entitled to tse water from their espectiv well only for purposes
authorized by the well permit and in accordance with the terms and conditions of the well
permit; provided, however, that thelAssociation shall be and is entitled to withdraw and
use 0.55 acre-foot of water annually from the Big R Well No. 9, located on Lot 9, for fire
protection purposes and to supply to the Subdivision fire protection system.
In lieu of individual wells, neighboring Owners may, subject to private agreement
between themselves, construct and operate ared well that may be used to serve both
lots. In the event of a shared well, the combined water production and uses of the well
shall be limited to the combined amounts and uses for each lot, as set forth above. (For
mple, if Lots 3 and 4 share a well, the permit for such well shall be limited to withdrawal
p to 50 gallons of water per minute with a maximum of 1.92 acre-feet per year for
ercial use inside two units, lawn and landscape irrigation of up to 16,000 square feet,
any . 'de vehicle washing.) For so long as the shared well is permitted for the combined
amoun 'd uses of both lots, the subject lots are prohibited from developing separate,
individua is on each lot.
(b) Ownership, Use, and Maintenance of Well. Subject to the well sharing
provisions of part 11.01(a) above, the Owners of the Lots shall each own, appurtenant to
their respective Lot, the full interest in their respective well, well permit, pump, and
associated facilities for the withdrawal and use of water from each well; provided, however
that the Association shall be and is entitled to withdraw and use 0.55 acre-foot of water
annually from the Big R Well No. 9, located on Lot 9, for fire protection purposes and to
supply to the Subdivision fire protection system. Each Lot owner is responsible to drill and
install, at its own expense, the well, power source, meter, and other facilities in and to the
well serving such Lot. Each Lot Owner shall be solely responsible, at its sole cost and
Page 3
expense, to operate, maintain, repair, service, and replace its well, meter, pump, pipelines,
and associated facilities and the well permit for such well.
4. Section 12.01— Access. Section 12.01 of the Restated Declaration is deleted in its
entirety and replaced with the following:
12.01 Access. The road identified on the Plat as Big R Road (now known as Gemat
Circle) has been dedicated as a public right-of-way. The Association obtained two
Colorado Department of Transportation Access Permits for the Subdivision. Public access
to and from Big R Road is via State Highway 6 & 24 pursuant to Colorado Department of
Transportation ("CDOT") Access Permit No. 318105. Public access to and from Lots lA
and 1B is also currently available via State Highway 6 & 24 pursuant to CDOT Access
Permit No. 399019. New permits in compliance with current CDOT regulations and the
current State Highway Access Code (2 CCR 601-1) will be required as set forth below.
5. Section 12.02(c). Section 12.02(c the R- tated Declarat . a .s ended as
follows:
The definition of Allocated Vehicle Trips in Secti
is hereby revised to state as foll
Lot lA = 10.725%, Lot 1B
(the "Allocated Vehicle Trip
%, Lot 2 =
.02(c) of the Restated Declaration
4
6. Section 12.02(e). Section 12. of the Restated Declaration is deleted in its
entirety and replaced wIt. the following:
ots 3 - 10 = 7.14% each
(e) The Owners of Lots lA and 1B are responsible, at their sole cost and expense,
for any traffic counts, traffic studies, new/revised permits, and any improvements
necessary to comply'with a new or amended permit providing access only to Lot lA and
Lot 1B, which costs and expenses shalt e allocated between Lots lA and 1B as follows:
Lot 1A — 37.5%; Lot 1B — 62°
7. Section 12.03 — Maid enance of Big R Road. Section 12.03 of the Restated
Declaration is deleted in its entirety and replaced with the following:
12.03 Maintenance of Big R Road. Big R Road has been constructed as a public
right-of-way identified on the final plat as Big R Road to Garfield County standards for a
minor collector road. Actual average daily trips for a minor collector road cannot exceed
2,500. Lot limitations for actual average daily trips on Big R Road are as follows: Lot 1A-
188; Lot 1B-312; Lot 2-400; Lots 3 through 10, inclusive-200 each. Once constructed, the
Association has the right to conduct periodic traffic counts to determine that the Lot
limitations are observed and to take any action necessary to enforce compliance with the
limitations. The Association also shall maintain and repair Big R Road. Maintenance
services for which the Association shall be responsible include, without limitation, snow
and ice removal, sanding, resurfacing, striping, painting, and similar services, as well as
Page 4
necessary landscaping. Expenses incurred pursuant to this Article XII shall be allocated as
stated on Exhibit C, except as otherwise provided in Section 12.04.
8. Section 12.04 — Maintenance of Easements. Section 12.04 of the Restated
Declaration is deleted in its entirety and replaced with the following:
12.04 Maintenance of Easements. The Association shall maintain and repair as
necessary: (i) the Emergency Ingress/Egress as shown on the Plat; (ii) the Lot 1A and Lot
1B Private Access and Utility Easement and Emergency Access Easement created by the
Lot 1 Plat (the "Private Easement"); and (iii) the Lot 9 well easement. Maintenance
services for which the Association shall be responsible shall include, without limitation,
snow and ice removal, sanding, resurfacing, striping, painting, and similar services, as well
as necessary landscaping. The costs of maintaining the Private Easement shall be allocated
only to the Owners of Lot IA and Lot 1B as a separate assessment, with Lot IA and 1B to
pay such assessment as follows: Lot IA — 37.5° 0; Lot PB — 62.5%.
9. Article XIV. Article XIV of the
replaced with the following:
ARTICLE XI
RESERVED 1 IS FOR LOTS 1*, 1B, ir 2
on is deleted intirety and
The Owner(s) of Lot 1B and'Lot 2 shall have the right to resubdivide such Lot or
condominiumize any buildings within Lot 1B and/or Lot `2 and to incorporate within the
Association any such Lots or condominiums created. The Owner(s) of Lot IA shall have
the right to condominiumize any buildiN within Lot 1A and to incorporate within the
Association any condominiums created. Ally Nsubdivision or condominiumization shall
comply with the terms of the Restated Declaration, as amended, and the subdivision
regulations of Garfield County then in effect, in accordance with Article 3 of the Restated
Declaration.
Effect of First Amendment. Only those provisions of the Restated Declaration
express nded or addressed herein are affected by this First Amendment; all other provisions
of the Rest eclaration shall remain unchanged and in full force and effect.
"emainder of page intentionally left blank.]
Page 5
IN WITNESS WHEREOF, this First Amendment is approved and adopted pursuant to
the Owner consents attached hereto as Exhibit A-1.
Big R Lot Owners Association, Inc.,
a Colorado nonprofit corporation
By:
Lowell Walter, Presi
STATE OF COLORADO )
) ss.
COUNTY OF )
The foregoing was acknowledged before me this day o
2020, by Lowell Walter, as President of Big R Lot Owners Association, Inc`
corporation.
Witness my hand and official seal. My commission expires:
lorado nonprofit
Page 6
LIST OF EXHIBITS
Exhibit Al — Consents
Exhibit A2 — Certificate of the Association
Page 7
Exhibit A-1
Consents
(Attached hereto)
Exhibit A-2
CERTIFICATION OF THE SECRETARY OF THE ASSOCATION
I, Dan Markoya, Secretary of Big R Lot Owners Association, Inc., hereby certify that the
requisite number of votes were made in favor of amending the Restated Declaration as follows:
Owners: FOR: AGAINST:
By:
STATE OF COLORADO )
) ss.
COUNTY OF )
Big R Lot Owners Association, Inc.,
a Colorado nonprofit corporation
arkoya, Secretary
The foregoing was acknowledged b s re me this day of ,
2020, by Dan Markoya as Secretary of Big R of Owners Association, Inc., a Colorado nonprofit
corporation.
Witness my hand and officia I seal.
My commission expire
Notary Public