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Home My WebLink AboutEMERGE~1Emergency Road Maintenance Agreement High Mesa Road, Garfield County, Co. This Agreement is made as of July 10th 2009 by the property owners and High Mesa Partners, (See appendix A), hereto and their successors and assigns with respect to real- estate parcels located in Garfield County. 1. Property: This agreement shall apply to the real property held by the owners identified in appendix "A" adjoining the road shown in Appendix B. 2. Owner: “Owner” shall mean and refer to High Mesa Partners LLC, who is defined as an accessing owner, the record owner of Parcels adjoining or accessing the road, whether one or more persons or entities, of the fee simple title to any parcel who has signed this Agreement, and the heirs, successors, assigns and personal representatives of said Owners, but, notwithstanding any applicable theory of mortgage law, shall not mean or refer to any mortgagee unless and until such mortgagee has acquired title by foreclosure or any proceeding in lieu of foreclosure. In the event of any subdivisions owner shall mean the owner of the newly created parcel or parcel. 3. Road: The purpose of this Agreement is to provide for the maintenance and upkeep of the Road as shown in Appendix “B” which services the Parcels for the use and benefit of all Owners, and shall be binding upon all Owners. Appendices “A” & “B” shall be revised at any time that additional Parcels have been created that have access to the road. The owners shall not deny use of the road to any new parcels or subdivided parcels that have access to the road directly or indirectly as defined in the easement agreement in Appendix “E”. 4. Association: The initial parcel owners agree to form an association at such time as there are more than two parcels in Appendix “B”. At such time the members will cause to be incorporated under Colorado law a nonprofit corporation, the High Mesa Emergency Road Association (the “Association”), for purposes of complying with the requirements of this Agreement. The association agreement is in Appendix “D” shall come into force at such time as a 3rd Parcel is created. 5. Member: Every Owner shall be a Member of the Association, once it is created. When more than one person or entity holds an interest in any Parcel, one such person or entity from that ownership group shall be a Member. A person or entity, who holds a fee or undivided fee interest merely as security for the performance of an obligation, shall not be a Member. 6. Voting: All Members of the Association shall be voting Members and the Association shall have votes based on the number of traffic units as defined in Appendix “C”. For purposes of any meeting, a quorum shall consist of Owners of at least one-half (1/2) the Parcels being present and voting. Each Parcel shall represent its vote. When more than one Member holds an ownership interest in a Parcel, the vote for that Parcel shall be exercised as such Members among themselves may determine by majority vote. In no event, however, shall the voting rights for a Parcel be divided. If Members who are Owners of a Parcel are unable to agree in any instance as to how their vote shall be cast, in any instance, then the vote shall not be counted. Prior to the creation of the association, High Mesa Partners, LLC shall be responsible for all expenses and shall have all votes. 7. Expenses: Prior to the creation of the association, High Mesa Partners, LLC shall bear all costs related to the maintenance of the road to the High Mesa/Daybreak Realty Property Parcel boundary line. Upon creation of the association, costs shall be apportioned in the following manner. Owners shall be responsible for a portion of the maintenance equal to the distance from their parcel entrance to CR 300 times the % of traffic units generated by the Parcel. This shall be calculated using the number of traffic units of use that each parcel has as shown in Appendix “C”. Road maintenance and upkeep shall be limited to that required to remove snow, to repair and prevent erosion and dust, to maintain the road to International Fire Code (IFC) standards and to repair ordinary wear to the surface of the Road. Unless otherwise agreed by a unanimous vote of all Owners, shall include the cost of maintaining the Association as a nonprofit corporation in good standing under the laws of Colorado, the cost of enforcing any provision of this Agreement and other costs and expenses necessary and proper for the effective and efficient functioning of the Association. All maintenance and upkeep [including snow removal], will be by competitive bid unless a non-competitive price is accepted by vote of a majority of the Owners present at a meeting duly called for the purpose of voting on the budget of the Association. 8. Lien: Each Owner, by signing this Agreement, does covenant and agree to pay to the Association, within sixty (60) days after the date of notice of an assessment, all assessments made by the Association. Each assessment, together with interest in amounts or at rates specified by the Association and together with costs of collection, shall be a lien and charge upon the Parcel against which each such assessment is made which lien shall continue until the assessment is paid and shall be the personal obligation of the Owner. The personal obligation of the Owner to pay such assessments, however, shall remain the personal obligation of the person who was the Owner when the assessment was first due and shall not pass to successors in title unless expressly assumed by such successors. 9. Enforcement: The Association may bring a civil action against the Owner personally obligated to pay an assessment in order to enforce payment of the delinquent assessment or to foreclose the lien against the Parcel, and there shall be added to the amount of such assessment due all costs of collection. In the vent a judgment is obtained, such judgment shall include interest on the assessment, together with all the Association’s attorney’s fees and expenses and costs of the action. 10. Subordination: The lien of the assessments provided for shall be subordinate to the lien of any mortgage or mortgages now or hereafter placed upon the Parcels. Such subordination, however, shall apply only to the assessments which have become due and payable prior to a sale or transfer of a Parcel pursuant to any allowable method of foreclosure, or any other proceeding in lieu of foreclosure. Upon request by an Owner of a mortgagee of a Parcel, the Association shall issue such certificates as are necessary to indicate the status of the assessments. Such sale or transfer shall not discharge the lien of the Association of any assessment thereafter becoming due after the date of any such sale or transfer. The lien of the assessments also shall be subordinate to all utility easements which may be placed upon any Parcel. 11. Severability: Invalidation of any one provision of this Agreement by competent authority shall in no way affect any other provision, which shall remain in full force and effect. 12. Amendment: This Agreement may be amended by a written instrument executed in recordable form and signed by Members entitled to cast at least 75% of the votes allocated to the Parcels. 13. Insurance: Each party to the agreement shall carry appropriate insurance for use of the road. At the time of the formation of the association the association shall assume the costs of such insurance as defined by the association bylaws. 14. Indemnification: To the fullest extent permitted by law, the owners shall indemnify and hold harmless each other and all of its agents and employees from and against all claims, damages, losses and expenses including attorneys’ fees arising out of or resulting from the performance of this agreement. 15. Governance: This agreement shall be governed by, and constructed and enforced in accordance with the laws of the state of Colorado. If any term, provision, covenant or restriction contained in this agreement is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against regulatory policy, the remainder of the terms, provisions, covenants and restrictions contained in this agreement shall remain in full force and effect and in no way shall be affected, impaired or invalidated. 16. If it shall be necessary to bring suit or undertake arbitration to enforce any of the provisions of this contract, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any judgment or award it receives should the court determine the non-prevailing party acted in bad faith. Notification: 1) Notification shall be made to the addresses below or to the following parties via phone. High Mesa and Daybreak: Bob Graham 408-391-7473 Eugene Speakman: 970-208-4388 For: High Mesa Partners, LLC 400 Panamint Rd. Reno, NV. 89521 ___________________________________________ Robert Graham, Manager Date For: Daybreak Realty 400 Panamint Rd. Reno, NV 89521 ___________________________________________ Robert Graham, Manager Date For: James Eugene and Monique Teresa Speakman 5254 CR 300 Parachute, CO 81635 James Eugene Speakman, Date Monique Teresa Speakman, Date