DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR BLUE MESA RECREATION ASSOOCIATION
Filed for record the 6th day of June, A.D., 1972, at 4:00 o’clock p.m. Book 440, Pages 109-115, Reception No. 289149, by Marian A. Smith, Recorder
THIS DECLARATION, made on the date hereinafter set forth by Blue Mesa, Inc., Roy R. Romer, Walter J. Burke, Vernon Hawks, William Robert Hawks, Frederick A. Bellgardt, and August F. Bellgardt, hereinafter referred to as “Declarants”
WHEREAS, Declarants are the owners of certain property in County of Gunnison, State of Colorado, which is more particularly described as follows:
NOW, THEREFORE, Declarants hereby declare that all of the properties described above and any additional properties hereafter annexed, as provided in Article V hereof, shall be held, sold and conveyed subject to the following easements, restrictions, covenants and conditions, which are for the purpose of protecting the value and desirability of, and which shall run with, the real property and be binding on all parties having any right, title and interest in the described properties or any part thereof, their heirs, successors and assigns, and shall inure to the benefit of each owner thereof.
Section1. “Association” shall mean and refer to Blue Mesa Recreation Association, its successors and assigns.
Section2. “Owner” shall mean and refer to the record owner, whether one or more persons or entities, of a fee simple title to any Lot which is a part of the Properties, including contract sellers, but excluding those having such interest merely as security for the performance or of an obligation.
Section 3. “Properties” shall mean and refer to that certain real property hereinbefore described and such additions thereto as may hereafter be brought within the jurisdiction of the Association.
Section 4. “Common Area” shall mean and refer to all real property owned by the Association for the common use and enjoyment of the owners. The Common Areas to be owned by the Association at the time of conveyance of the first lot shall be free and clear of liens and encumbrances and is described as follows:
Section 5. “”Lot” shall mean and refer to any plot of land shown upon any recorded subdivision map of the Properties with the exception of the common area.
Section 6. If any successor or assign of Declarants should acquire more than one lot without a dwelling constructed thereon, from Declarants, he or it shall be entitled to the same rights, powers and privileges granted hereunder to Declarants. The Declarants above listed are the owners of record on the date of filing of this document. It is anticipated that soon after this date all of individual Declarants’ interest in the Properties herein described will be conveyed to “Blue Mesa, Inc.” and that thereafter the term “Declarant” shall refer to “Blue Mesa, Inc.” or its assigns as provided in this paragraph, and not to the other individuals who have signed the original Declaration.
Section 1. Owner’s Easements of Enjoyment. Every owner shall have a right and easement of enjoyment in and to the Common Area which shall be appurtenant to and shall pass with the title to every Lot, subject to the following provisions:
Section 2. Delegation of Use. Any owner may delegate, in accordance with the By-Laws, his right of enjoyment to the Common Area and facilities to the members of his family, his tenants, or contract purchasers who reside on the property.
Section 3. Personal Property for Common Area. The Association may acquire and hold for the use and benefit of all members of the Association, tangible and intangible personal property and may dispose of the same by sale or otherwise, and the beneficial interest therein shall not be transferable except that the interest of a member who is an owner shall be deemed to be transferred upon the transfer of the member’s lot. A transfer of a lot shall transfer to the transferee ownership of the transferor’s beneficial interest in such personal property without any reference thereto or execution of a bill of sale. Each owner may use such personal property in accordance with the purpose for which it is intended, without hindering or encroaching upon the lawful rights of the other owners. Sale of a lot under foreclosure shall thereby entitle the purchaser thereof to the beneficial interest in the personal property associated with the lot.
Section 1. Every owner of a lot which is subject to assessment shall be a member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Lot which is subject to assessment.
Section 2. The Association shall have two classes of voting memberships:
Class A. Class A members shall be all Owners with the exception of Declarants and shall be entitled to one vote for each Lot owned. When more than one person holds an interest in any Lot, all such persons shall be members. The vote for such Lot shall be exercised as they among themselves determine, but in no event shall more than one vote be cast with respect to any Lot.
Class B. The Class B member shall be Declarants and shall be entitled to four (4) votes for each Lot owned. The Class B membership shall cease and be converted to Class A membership on the happening of either of the following events, whichever occurs earlier:
(a) when the total votes outstanding in the Class A membership equal the total votes outstanding in the Class B membership, or
(b) on January 1, 1979.
COVENANT FOR MAINTENANCE ASSESSMENTS
Section 1. Creation of the Lien and Personal Obligation of Assessments. The Declarants for each lot owned within the Properties, hereby covenants, and each owner of any Lot by acceptance of a deed therefore, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association (1) annual assessments or charges and (2) special assessments for capital improvements, such assessments to be established and collected as hereinafter provided. The annual and special assessments, together with interest, costs and reasonable attorney’s fees, shall be a charge on the land and shall be a continuing lien upon the property against which each such assessment is made. Each such assessment, together with interest, costs, and reasonable attorney’s fees, shall also be the personal obligation of the person owning such property at the time the assessment fell due. The personal obligation for delinquent assessments shall not pass to his successors in title unless expressly assumed by them. In addition to the annual assessment against Lots owned by Class B members at 20% of the assessment against Lots owned by Class A members, Declarant, Blue Mesa, Inc., or assigns, hereby agrees that it will assume and pay to the Association any operating deficit of the Association in excess of the Association’s total annual assessments for any year in which Declarant, Blue Mesa, Inc., or assigns, is a Class B member of the Association.
Section 2. Purpose of Assessments. The assessments levied by the Association shall be used exclusively to promote the recreation, health, safety and welfare of the residents in the Properties and for the improvement and maintenance of the Common Area and roads in the subdivision.
Section 3. Maximum Annual Assessment. Until July 1, 1973, the maximum annual assessment for all Lots owned by Class A members shall be Fifty Dollars ($50.00) per Lot, and for all Lots owned by Class B members, it shall be Ten Dollars ($10.00) per Lot.
Section 4. Special Assessments for Capital Improvements. In addition to the annual assessments authorized above, the Association may levy, in any assessment year, a special assessment applicable to that year only for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair and/or replacement of a capital improvement upon the Common Area, including fixtures and personal property related thereto, provided that any such assessment shall have the assent of two-thirds (2/3) of the votes of each class of members who are voting in person or by proxy at a meeting duly called for this purpose.
Section 5. Notice and Quorum for Any Action Authorized Under Sections 3 and 4. Written notice of any meeting called for the purpose of taking any action authorized under Section 3 or 4 shall be sent to all members not less than 30 days nor more than 60 days in advance of the meeting. At the first such meeting called, the presence of members or of proxies entitled to case forty (40%) percent of all the votes of each class of membership shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirement, and the required quorum at the subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than 60 days following the preceding meeting.
Section 6. Uniform Rate of Assessment. Annual assessments must be fixed at a uniform rate for all Lots of Class A members and may be collected on a yearly basis.
Annual assessments for all Lots of Class B members shall be fixed at 20% of the rate for all Lots of Class A members and may be collected on a yearly basis. Special assessments for Class A and B members must be fixed at a uniform rate for all Lots and may be collected on a yearly basis.
Section 7. Date of Commencement of Annual Assessments. Due Dates. The annual assessments provided for herein shall be paid at the beginning of each 12-month period and shall commence on July 1, 1972, and shall be due on July 1 of each year thereafter. A lot owner who purchases a lot between July 1 and August 30 shall pay the full annual assessment for that year. A lot owner who purchases a lot between September 1 and December 31 shall pay one-half the annual assessment for that year. A lot owner who buys a lot between January 1 and June 30 shall not be liable for the annual assessment for that assessment period. The Board of Directors shall fix the amount of the annual assessment against each Lot of Class A and B members at least thirty (30) days in advance of each annual assessment period. Written notice of the annual assessments shall be sent to every Owner subject thereto. The due dates shall be established by the Board of Directors. The Association shall, upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the association setting forth whether the assessments on a specified lot have been paid.
Section 8. Effect of Nonpayment of Assessments. Remedies of the Association. Any assessment not paid within thirty (30) days after the due date shall bear interest from the date at the rate of 9 percent per annum. The Association may bring on action at law against the Owner personally obligated to pay the same, or foreclose the lien against the property. No owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Area or abandonment of his Lot.
Section 9. Subordination of the Lien to Mortgages. The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage. Sale or transfer of any Lot shall not affect the assessment lien. However, the sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding in lieu thereof, shall extinguish the lien of such assessments as to payments which became due prior to such sale or transfer. No sale or transfer shall relieve such Lot from liability for any assessments thereafter becoming due or from the lien thereof.
ANNEXATION OF ADDITIONAL PROPERTIES
Section 1. Annexation of additional property shall require the assent of two-thirds (2/3) of the Class A members and two-thirds of the Class B members, if any, at a meeting duly called for this purpose, written notice of which shall be sent to all members not less than 30 days nor more than 60 days in advance of the meeting setting forth the purpose of the meeting. The presence of members or of proxies entitled to cast forty percent (40%) of the votes of each class of membership shall constitute a quorum. If the required quorum is not forthcoming at any meeting, another meeting may be called, subject to the notice requirement set forth above, and the required quorum at such subsequent meeting shall be one-half of the required quorum of the preceding meeting. No such subsequent meeting shall be held more than 60 days following the preceding meeting. In the event that two-thirds (2/3) of the Class B membership are not present in person or by proxy, members not present may give their written assent to the action taken thereat.
Section 2. If within nine years of the date of incorporation of this Association, the Declarants should develop additional lands within an area lying within five (5) airline miles of the properties herein described, such additional lands may be annexed to said Properties without the assent of the Class A members.
Section 3. The additions authorized hereunder shall be made by filing for record a Supplementary Declaration of Covenants with respect to the additional property which shall extend the scheme of these Covenants to such additional property. Such Supplementary Declaration may contain such complementary additions and modifications of the Covenants contained in this Declaration as may be necessary to reflect the different character, if any, of the added properties and as are not inconsistent with the scheme of this Declaration. In no event shall any such Supplementary Declaration revoke, modify and/or add to the Covenants established by this Declaration within the existing property, without approval of the Association pursuant to a vote of its members as provided in its Articles of Incorporation and elsewhere in these Covenants.
INSURANCE AND INDEMNIFICATION
Section 1. Insurance. The Association shall maintain at all times insurance policies for fire with extended coverage and vandalism and malicious mischief with endorsements attached issued in the amount of the maximum replacement value of all Common Area facilities and buildings, and such casualty and public liability and other insurance policies as the Board deems necessary.
Section 2. Indemnification. Each officer and director of the Association shall be indemnified by the Owners and the Association against all expenses and liabilities including attorney’s fees, reasonably incurred by or imposed upon him in any proceeding to which he may be a party, or in which he may become involved, by reason of his being or having been an officer or director of the Association, or any settlements thereof, whether or not he is an officer or director of the Association at the time such expenses are incurred, except in such cases wherein such officer or director is adjudged guilty of willful misfeasance or malfeasance in the performance of his duties, provided that in the event of a settlement the indemnification shall apply only when the Board of Directors approves such settlement and reimbursement as being for the best interests of the Association.
DAMAGE, DESTRUCTION AND OBSOLESCENCE
The Board of Directors shall set forth in the By-Laws of the Association the procedure to be followed by the Association in the event of damages, destruction or obsolescence of any of the real or personal property of the Common Area.
Section 1. Enforcement. The Association, or any Owner, shall have the right to enforce by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Failure by the Association or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.
Section 2. Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall in no wise affect any other provisions which shall remain in full force and effect.
Section 3. Amendment. The covenants and restrictions of this Declaration shall run with the land for a term of ten (10) years from the date this Declaration is recorded, after which time they shall be automatically extended for successive periods of ten (10) years. This declaration may be amended by an instrument signed by not less than seventy-five percent (75%) of the Lot Owners. Any amendment must be recorded.
Section 4. Registration by Owner of Mailing Address. Each owner shall register his mailing address with the Association, and except for statements and other routine notices, all other notices or demands intended to be served upon an Owner shall be sent by either registered or certified mail, postage prepaid, addressed in the name of the Owner at such registered mailing address. All notices, demands or other notices intended to be served upon the Board of Directors of the Association or the Association shall be sent by certified mail, postage prepaid, to 1415 Denver Club Building, Denver, Colorado 80202, until such address is changed by a notice of address change duly recorded in the office of the Clerk and Recorder, Gunnison County, Colorado.
Signed and sealed April 3, 1972 by:
Attested by Walter J. Burke, Asst. Secretary
STATE OF COLORADO ) )ss. COUNTY OF GUNNISON )
The foregoing instrument was acknowledged before me this 3rd day of April, 1972 by Walter J. Burke, Roy R. Romer, August F. Bellgardt, and August F. Bellgardt as Attorney-in Fact for William Robert Hawks, Vernon Hawks and Frederick A. Bellgardt.
My commission expires June 28, 1975.
WITNESS my hand and official seal.
Alma Binford, Notary Public