HomeMy WebLinkAboutJJDAPP~1Road Maintenance Agreement High Mesa Road, Garfield County, Co.
This Agreement is made as of July 10th 2009 by the property owners, (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 the record owner, 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 parcels.
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 three parcels in Appendix “B”. At such time the members will
cause to be incorporated under Colorado law a nonprofit corporation, the High Mesa
Road Association (the “Association”), for purposes of complying with the
requirements of this Agreement. The association agreement in Appendix “D” shall
come into force at such time as a 4th 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. Prior to creation of the Association the
members shall meet periodically to review and approve all maintenance plans.
Votes shall be by number of traffic units. With a 51% vote required to change the
plan.
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 county 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 unit holders present
at a meeting duly called for the purpose of voting on the budget of the Association.
8. Maintenance Plan: A maintenance plan shall be in place as shown in Appendix “E”.
Prior to the formation of the association it shall be the responsibility of the parcel
holder with 51% or more of the unit votes to maintain the plan and implement it as
specified.
9. 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. Said 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.
10. 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 event 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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