| WHEN RECORDED, RETURN TO:
EAGLES NEST PARTNERSHIP, LLP
JOHN E. THOMPSON, Managing General Partner
P.O. Box 1563
Cortez, Colorado 81321
FIRST AMENDED
DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS
EAGLES NEST
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, this Declaration amends the Declaration of
Covenants, Conditions and Restrictions recorded May 22, 2000.
WHEREAS, EAGLES NEST PARTNERSHIP, LLP. (hereinafter
"EAGLES NEST") are the owners of the following
described subdivision real property, situated within the
County of Montezuma, State of Colorado:
TRACT I: S/2SW/4 of Section 3, Township 36 North, Range 17
West, N.M.P.M., less and except the N/2SW/4SW/4 of Section 3,
Township 36 North, Range 17 West, N.M.P.M.
TRACT II: N/2SW/4 of Section 3, Township 36 North, Range 17
West, N.M.P.M., less and except the S/2NW/4SW/4 of Section 3,
Township 36 North, Range 17 West, N.M.P.M.
TRACT III: NW/4 of Section 10, Township 36 North, Range 17
West, N.M.P.M.
EXCEPT the South Half of the Northwest Quarter of the
Southwest Quarter and the North Half of the Southwest Quarter of
the Southwest Quarter of Section 3, Township 36 North, Range 17
West, N.M.P.M., except any portion thereof lying in and being
used as a county road.
EXCEPT that portion commonly referred to as WedMont Golf
Links, which is specifically excluded from the Subdivision real
property. The legal metes and bounds will be inserted when
available from Maness & Associates, after completion of the
final Plat of Survey of the Subdivision. This real property
known as WedMont Golf Links is owned and operated independently
from EAGLES NEST DEVELOPMENT.
WHEREAS,
EAGLES NEST will convey the said properties, subject to certain
protective covenants, conditions, restrictions, reservations,
liens and charges as hereinafter set forth:
NOW,
THEREFORE, EAGLES NEST (referred to herein as "Declarant")
hereby declares that all of the subject properties described
above shall be held, sold and conveyed subject to the following
easements, restrictions, covenants, and conditions, all of which
are for the purpose of enhancing and protecting the value,
desirability and attractiveness of the real property, and all of
which are hereby declared to be for the benefit of all of the
property described herein and the owners thereof, their heirs,
successors, grantees and assigns.
1. PURPOSE OF THESE RESTRICTIONS, COVENANTS AND CONDITIONS
The purpose of these restrictions, covenants and
conditions is to assure the use of the property for attractive
residential purposes (as set forth herein) only, and securing
to each lot owner the full benefit and enjoyment of his or her
lot and home in furtherance of a common plan.
2. DEFINITIONS
As used herein, the following terms have the following
meanings:
A. The "Architectural Control Committee" means
the committee provided for in Part 5 of this Declaration.
B. The "Association" means EAGLES NEST Property
Owners Association as referred to in Part 5 of this
Declaration.
C. "Bona Fide First Mortgage" means any Realty
Mortgage or Deed of Trust made in good faith and for value and
properly executed and recorded so as to create a lien on any
lot or lots that is prior to the lien of any other Realty
Mortgage or Deed of Trust.
D. "Declaration" means this Declaration of
Covenants, Conditions and Restrictions for EAGLES NEST.
E. "Building Envelope" means the approximate
10,000 square foot area located within a designated Lot
wherein the Owner may erect a building.
F. "Out Building" means barns, corrals, equipment
storage sheds, smoke houses and any other buildings of this
nature.
G. "Fencing" and/or "Hedge Row" mean
any containment using wood, chainlink, logs or plantings to
create separation from other Lots or within a Lot.
H. The "Lot" or "Lots" means the lots
in the subdivision either individually or collectively, as the
case may be.
I. "Mobile Home" means a moveable or portable
unit for residential purposes constructed to be towed on its
own chassis and designed to be installed with or without a
permanent foundation for human occupancy as a residence.
J. "Owner" shall mean and refer to the record
Owner, whether one or more persons or entities of fee or
equitable or beneficial title to any Lot. Owner shall include
the purchaser of a Lot under an executory contract for
purchase. The foregoing definition does not include persons or
entities that hold an interest in any Lot as security for the
performance of an obligation.
K. The "Plat" means the plat of record referred
to above, as may hereafter be amended.
L. The "Property" means the real property
described above or any part thereof.
3. PROPERTY OWNERS ASSOCIATION
A. There is hereby created EAGLES NEST Property Owners
Association. The purpose of the Association is to: maintain
and repair the Family Sports Complex and storage parcel lots
in addition to the entryway, landscaping and open areas,
including any entryway and landscaping replacements, as
further defined in Part 6.G.; maintain and repair easements
created for roads and paths, being the common driveways as
shown on the subdivision plat; and maintain, repair and fence,
as determined to be necessary by the Association, hiking paths
so designated on the subdivision plat; maintain any
subdivision perimeter fences created by the Architectural
Control Committee in accordance with the provisions of Part 5
of this Declaration.
B. Each and every Lot Owner, in accepting a deed or
contract for any Lot, whether or not it shall be so expressed
in such deed of contract, automatically becomes a member of
the Association, and agrees to be bound by such reasonable
rules and regulations as may, from time to time, be
established by the Association. Membership shall be
appurtenant and may not be separated from ownership of the
Lot. The rights and obligations of an Owner and membership in
the Association shall not be assigned, transferred, pledged,
conveyed or alienated in any way, except upon transfer of
ownership of such Lot, whether by intestate succession,
testamentary disposition, foreclosure of a mortgage, or such
other legal processes as now in effect or as may be hereafter
established pursuant to the laws of the State of Colorado. The
Association shall be operated and conducted on a strictly
cooperative and non-profit basis. Each Lot Owner as a member
shall have such voting rights as set forth in this
Declaration.
C. In furtherance of its purposes; which are generally set
forth above, the Association shall provide necessary and
appropriate action for the maintenance, repair, replacement
and management of the facilities referred to in Paragraph A
above. It shall have the right to enter upon a Lot, if
reasonably necessary, in order to accomplish its purpose,
excluding WedMont Golf Links, separately owned, and not a part
of the Subdivision.
D. The Association shall have the power to borrow and
encumber its assets, in all respects, shall have the powers
necessary to carry out its purposes, whether or not
specifically set forth herein, including the power to enter
into contracts with third parties to perform all or part of
its functions, and to hire its own employees to do so.
E. Each Lot Owner is obligated to pay: (I) regular
assessments for normal maintenance and repair and reserves,
along with Association insurance and operating costs; (ii)
special assessments for capital improvements with such
assessments to be established by the Association. The regular
and any special assessments, late payment penalties and
charges, if any, together with interest, (all as set by the
Association) costs and reasonable attorneys fees, shall be a
lien on the Lot. Each Lot Owner shall be personally
responsible for his or her share of assessments imposed by the
Association.
F. The Association shall, on an annual basis, make a
determination as to the estimated costs of the repair,
maintenance, and replacements of the entryway improvements and
landscaping, driveways and hiking paths, and any other common
areas as shown on the plat as noted in Paragraph "A"
of this Section, including any reserves necessary for future
capital expenditures and maintenance. Assessments shall be
charged to each Owner on a uniform per Lot basis. The
assessments may be collected on a monthly, quarterly, or
annual basis, or any combination of same as determined by the
Association.
G. Each Owner shall be responsible to pay the regular
assessment commencing on the first day of the month following
the date of recordation of the deed or purchase contract
wherein the Owner acquired legal, beneficial, or equitable
title to the Lot. The Declarant shall not be responsible for
comparable assessments on each Lot owned by it. However,
Declarant shall be responsible to provide labor, material
and/or monies in sufficient amounts, not to exceed the amount
of the normal lot assessment for each lot owned by it, if
necessary in Declarant's opinion, to properly fulfill the
Association's maintenance responsibilities. Regular
assessments shall be set by the Association on an annual
calendar year basis. The initial regular assessment shall be
Four Hundred Twenty Dollars ($420.00) Dollars per year,
payable in monthly installments of Thirty-Five ($35.00)
Dollars. The Lot Owner acquiring his or her interest from
Declarant during the calendar year shall be obligated for a
pro rata portion thereof. The Association shall fix the amount
of the regular assessment at least thirty (30) days prior to
the end of the calendar year. Written notice of the assessment
shall be sent to every Owner. The lot assessment payment is
due monthly, at the first of each month, as established by the
Association.
H. In addition to the regular assessment as set forth
above, the Association may set special assessments if the
Association determines by two-third's ownership vote that such
is necessary to meet the primary purposes of the Association.
I. All sums assessed by the Association chargeable to a
Lot, but unpaid, shall constitute a lien on such Lot prior to
all other liens excepting only ad valorem liens in favor of a
governmental assessing unit or special assessment district.
The Association lien may be foreclosed by the Association in a
like manner as a foreclosure of a real property deed of trust.
The Association shall have the power to bid on the delinquent
Lot at a foreclosure sale, and acquire, hold, lease, encumber
and convey same. A suit to recover a money judgment for unpaid
assessments and charges shall be maintainable by the
Association without foreclosing or waiving a lien securing/
same.
J. The total number of votes in the Association shall be on
the basis of one (1) vote per lot, provided, the Declarant
shall have three (3) votes for each lot it owns. The total
number of Lots and therefore the total number of votes may be
increased from time to time by expansion of the subdivision as
evidenced by a Supplemental Declaration, incorporating this
Declaration, executed and recorded by Declarant. Unless
otherwise specifically provided herein, all Association
matters shall be determined by a majority vote. If more than
one party is the Owner of a Lot, there must be unanimous
agreement among those who own an interest in the Lot as to how
they cast that Lot's vote, otherwise, that vote shall not be
counted.
K. The Association shall have the power to adopt Bylaws and
to appoint its officers and directors, as well as promulgate
reasonable regulations relating to the matters within its
purpose.
L. Where the holder of a first mortgage of record obtains
title to the Lot as a result of foreclosure, or deed in lieu
of foreclosure, of said first mortgage, such acquirer of
title, its successors and assigns, shall be liable for the
share of the expenses of the assessments by the Association
chargeable to such Lot which became due prior to the
acquisition of title to such Lot by such acquirer. As used in
this Declaration, the term "mortgage" shall include
"deed of trust" and "mortgagee" shall
include the "Beneficiary" under a deed of trust.
Additionally, such acquirer shall be responsible, as any
Owner, for assessments charged subsequent to the acquisition.
M. In the event the Association determines that any Lot
Owner has not complied with the provisions of this
Declaration, then the Association may, at its option, give
written notice to the Owner of the conditions complained of;
the Owner shall correct same within fifteen (15) days after
notice from the Association. The Association shall approve or
disapprove any plans submitted by the Owners and set forth a
reasonable time for correction of the condition complained of
if not capable of being completed within 15 days. In the event
such condition is not corrected according to the approved
plans, within the allotted time, the Association shall have
the right to undertake to remedy such condition or violation
asserted. The cost thereof shall be deemed to be an assessment
to such Owner and enforceable by the Association as if any
other unpaid assessment. The Association is hereby granted the
right of entry on the affected Lot to correct the condition or
violation asserted.
N. The Owner has been advised by the Developer that there
are potentially numerous locations on the Property of an
Archaeological nature, specifically referred to herein as
"ruin sites". While the exact nature and specific
locations of these ruins are unknown, it is understood that
these ruin sites may include, but are not limited to
habitation sites, kivas and burial sites. State law governs
the disruption or destruction of any ruin site deemed to be a
"burial site". Questions regarding the nature of
such a find are best directed to local archaeological
expertise. In the event there is a discovery of some form of
ruins, steps should be taken to determine the extent of the
ruin site and whether the building envelope for the particular
parcel may need to be relocated within the lot lines of said
parcel.
4. ARCHITECTURAL AND DESIGN CONTROL
No lot leveling, excavation, grading, planting,
landscaping, residence, or other improvement or installation
shall be commenced, erected, placed, or altered on any Lot
until the plans and specifications therefore showing the
nature, kind, shape, materials, floor plans, and locations
shall have been submitted to and approved by the Architectural
Control Committee ("Committee") and a copy thereof
is finally approved and lodged permanently with the Committee.
The Committee shall have the right to refuse to approve any
such plans or specifications which are not suitable or
desirable in its opinion for aesthetic reasons, or not in
accordance with the overall theme of EAGLES NEST, or any other
reason, and in so passing upon such plans and specifications
it shall have the right to take into consideration the
suitability of the proposed residence, and the material which
is to be used, the site upon which it is proposed to be
erected, the harmony with the surroundings, and the effect of
the proposed structure on the outlook from adjacent or
neighboring property. All plans must comply with Montezuma
County requirements.
A. Membership. The Committee shall be initially composed of
EAGLES NEST PARTNERSHIP, LLP, JOHN E. THOMPSON, Managing
General Partner, its successors and assigns. When seventy-five
(75%) percent of the Lots (including any additional phases
incorporated into this Declaration) have been sold by the
Declarant, then the function of the Committee shall be
assigned to the Association. Prior to assignment to the
Association, the Declarant shall have the responsibility to
appoint and remove Committee members. The members of the
Committee shall not be entitled to any compensation for
services performed pursuant to this covenant, but shall be
entitled to reimbursement for reasonable costs expended, as
approved in advance by the Association. The members of the
Committee shall incur no liability from their acts or
omissions. The Committee shall at no time be composed of more
than three (3) members.
B. Procedure. The Committee's approval or disapproval as
required in this Declaration shall be in writing. Actions of
the Committee shall be by the majority vote of the members of
the Committee. All decisions of the Committee shall be final
and no Lot Owner or other party shall have recourse against
the Committee or its designated representatives, or its
members, for its disapproval or refusal to approve. In the
event the Committee or its designated representative fails to
approve or disapprove within sixty (60) days after the plans
and specifications have been submitted to it, the plans and
specifications shall be deemed to have been approved.
5. GENERAL RESTRICTIONS APPLICABLE TO ALL LOTS.
A. Land Use. No building other than one single family
dwelling residence and a private garage not to exceed 3 cars
and a guest house or servants quarters as approved by the
Architectural Control Committee, and as are in compliance with
applicable zoning, shall be erected, maintained, placed or
permitted on any Lot within the designated Building Envelope.
No improvements may be commenced without the appropriate
building permits having been first obtained. A guest house may
not be completed prior to the completion of the single-family
residential structure. Any guest house, which may include a
kitchen, or servants quarters, shall be for the use of bona
fide guests or servants, as the case may be, or the occupants
of the main residence, or members of such occupants family,
and shall not be rented or leased separate from the main
residence.
No manufacturing or commercial enterprise, or enterprises
of any kind for profit or non-profit shall be maintained upon,
in front of, or in connection with any Lot, nor shall any Lot
be used for other than strictly single family residential
structure or purpose without the prior written approval of the
Association.
No residential Lot shall be resubdivided into smaller Lots
other than those Lots shown or delineated on the original
recorded plat, but 2 or more Lots may be used as one building
site. In the latter instance, the Architectural Committee will
approve the new building envelope or modifications thereto.
B. Completion Time. Construction of a residence shall be
finished and completed in a reasonable time, but not more than
twelve (12) months after commencement.
C. Minimum Size. Any single family residential structure or
approved improvement placed upon any Lot shall be constructed
from new material or its equivalent, and as may be approved by
the Committee. Any residential structure located on a Lot less
than 4.00 acres, excluding a guest house, shall contain a
minimum of one thousand five hundred (1500) square feet of
living area exclusive of carport, garage, open porches and
patio, unless specifically approved by the Association. Any
residential structure located on a Lot more than 4.00 acres,
excluding a guest house, shall contain a minimum of two
thousand five hundred (2500) square feet of living area
exclusive of carport, garage, open porches and patio, unless
specifically approved by the Association.
D. Location. No improvements (including landscaping) shall
be erected or placed on any Lot outside of the designated
building envelope, as shown on the map, without approval of
the Architectural Control Committee. It being understood that
the building envelope lines and all other use restrictions
contained in this Declaration are in addition to zoning and
other land use regulations adopted by governmental authorities
and the more restrictive must be followed.
E. Equipment. No equipment such as tractors, backhoes,
trailers or farm equipment shall be permitted on any Lot at
any time, other than during construction and as required for
construction. Any such equipment must be stored either offsite
or in the designated storage area.
F. Mobile Homes. Mobile homes shall not be permitted to be
placed on any Lot, permanently or temporarily.
G. Temporary Structures. No structure of a temporary
character, motor home, recreational vehicle or travel trailer,
regardless of its nature or form, shall be used as a residence
at any time, nor parked on the Lot. Any motor home,
recreational vehicle or travel trailer will only be permitted
to park in the designated storage area for EAGLES NEST.
H. Entryway and Landscaping. Entryway, common landscaping
areas, open areas if any, not part of specific lots, and
hiking paths as designated on the subdivision plat, whether as
separate parcels or easements, shall be the sole
responsibility of the Association to maintain, repair and
reconstruct as set forth in Part 3 of this Declaration. The
Declarant shall have the right to convey any such easements
and/or common area parcels to the Association. Planting of any
shrub or tree must be approved by the Architectural Committee.
Views of other Lot Owners is a major consideration of
acceptability.
I. Signs. No signs or billboards used as advertising or
promotional device, except those used in the sale of Lots in
the subdivision by Declarant for the sale or rental of
property by the Owner(s) or his or her agent shall be placed
on any Lot, or portion thereof.
J. Public Events. No public events shall be held at the
subdivision, without the prior approval of the Association.
K. Livestock and Poultry. No horses, livestock or poultry
shall be allowed under any circumstances. Only normal
household pets in reasonable numbers shall be allowed. No pet
shall be allowed that creates a hazard or nuisance to Owners
of other Lots in the subdivision. No kennels of any kind shall
be permitted.
L. Garbage and Refuse Disposal. No Lot shall be used or
maintained as dumping ground for rubbish. Trash, garbage, or
other waste shall not be kept on any Lot and will be regularly
and promptly removed. All equipment for the storage of such
material shall be kept in a clean and sanitary condition. No
outdoor burning of trash shall be permitted on any Lot under
any circumstances. No stockpiling of any materials, except
during construction, shall be permitted.
M. Individual Sewage Systems. Individual sewage disposal
systems to serve the Lot shall be permitted on the Lot. All
individual sewage systems shall be constructed to Colorado
Department of Environmental Quality and Montezuma County
Health department standards. No sewage disposal system shall
be installed without first obtaining a Health Department
Sewage Disposal Permit. All sewage systems shall be kept as
not to disturb surrounding neighbors and/or Property with
offensive odors and/or sight, and located so as to minimize
grading and/or disturbance to existing vegetation.
N. Protective Screening. All permitted equipment, propane
tanks, and wood piles shall be kept screened by adequate
planting shall be located contiguous to residence so as to
conceal them from view of neighboring Lots or streets. Hedges
or shrubs not exceeding three (3) feet in height may be
planted. Any planting done on a Lot must be within the
building envelope as designated. Dog runs, if erected, shall
be of chain link and located tangential to the residence and
within the building envelope. Outdoor clotheslines are not
permitted.
O. Parking and Storage . Boats, boat trailers, camping
trailers, campers, travel trailers, or any other recreational
vehicles, sporting or camping equipment shall not be stored or
parked on the Property. Such parking will only be permitted in
the designated storage area. This includes utility trailers
and any other equipment not considered a "passenger
vehicle."
P. Antennas . No antenna whatsoever, or large satellite
dish will be allowed. The Architectural Control Committee
shall have the final decision on any dispute. A normal TV
antenna must be installed in the attic of the house. A small
satellite dish will be permitted installed directly on the
building. No free-standing antennas or satellite dishes will
be permitted.
Q. Nuisances. No Lot Owner shall place or maintain any
animate or inanimate object upon any Lot so as to create a
nuisance to the Owners of the neighboring Lots. Upon written
notification to the Lot Owner of the existence of a nuisance,
the Lot Owner will have ten (10) days to remove the nuisance.
In the event the Lot Owner does not remove the nuisance, it
will be removed by the Association, at the Lot Owner's
expense.
R. Land Clearing. Beyond the building envelope, there shall
be no clearing of the land (removal of trees, natural
vegetation, or brush) without approval of the Architectural
Control Committee. It is the intent of Eagles Nest to maintain
a natural setting within the subdivision, to the greatest
extent possible. Additionally, the Lot Owner will be
responsible for "normal weed abatement" as
proscribed by the Association.
S. Spark Arresters. Absolutely no fireplace will be
approved by the Architectural Control Committee without
appropriate arrester equipment.
6. GENERAL PROVISIONS
A. COVENANTS: The covenants, restrictions, reservations,
conditions and servitudes contained in this Declaration shall
run with the land and shall be binding upon all persons
owning, leasing, subleasing or occupying any Lot or Lots after
the date on which this instrument shall have been recorded in
the Office of the County Recorder of Montezuma County, State
of Colorado. The covenants, restrictions, reservations,
conditions and servitudes may be enforced by the Owner or
lessee of any Lot, by the holder of a Bona Fide First Mortgage
on any Lot, by the Association, any one or more of said
persons acting jointly; provided, however, that any breach by
reasons thereof shall not defeat or adversely affect the lien
of a Bona Fide First Mortgage upon any Lot, but each and all
said covenants, restrictions, reservations, conditions and
servitudes may be enjoined, abated or remedied by appropriate
proceedings, notwithstanding the lien or existence of any such
Bona Fide First Mortgage. All instruments of conveyance or
assignment of any interest in all or any part of the Property
shall refer to this instrument and shall be subject to the
covenants, restrictions, reservations, conditions and
servitudes herein contained as fully as though this instrument
were therein set forth in full provided, however, that the
terms and conditions of this instrument shall be binding upon
all persons affected by its terms, whether express reference
is made to this instrument or not.
B. Invalidity. Invalidation of any of these covenants,
restrictions, reservations, conditions and servitudes by
judgment, court order, or otherwise shall in no way affect the
validity of any of the other provisions of this Declaration,
all of which shall remain in full force and effect.
C. Amendments. This Declaration may be amended during the
period ending ten (10) years immediately following the date of
the recording of this Declaration only by instrument executed
by the Owners of at least seventy percent (70%) of the Lots,
included or incorporated within this Declaration, and such
amendment shall not be effective until the recording of such
instrument. Thereafter, this Declaration may be amended by
instrument executed by the Owners of at least two-thirds (2/3)
of the Lots, included or incorporated within this Declaration,
and such amendment shall not be effective until the recording
of such instrument.
D. Term. The covenants, conditions, restrictions and
servitudes of this Declaration, as the same may hereafter be
amended in accordance with the terms hereof, shall remain in
full force and effect for a term of twenty (20) years from and
after the date of recording of this Declaration, from which
time they shall be automatically renewed and extended for
successive periods of ten (10) years each, unless terminated
as of the end of such initial twenty (20) years or any
successive ten (10) within the six (6) month period
immediately preceding the expiration of such initial period,
or any renewal period, by an instrument of termination
executed and acknowledged by the Owners of at least two-thirds
of the Lots, included or incorporated within this Declaration,
and recorded in the Office of the Montezuma County Recorder.
IN WITNESS WHEREOF, EAGLES NEST PARTNERSHIP, LLP has executed
this First Amended Declaration of Restrictions by the
undersigned this 16th day of October, 2000.
______________________________
JOHN E. THOMPSON, Managing General Partner
STATE OF
COLORADO
)
) ss
COUNTY OF MONTEZUMA )
On October 16, 2000, before me, a Notary Public, personally
appeared JOHN E. THOMPSON, Managing General Partner of EAGLES
NEST PARTNERSHIP, LLP., personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrument and acknowledged to
me that he executed the same in his authorized capacity.
WITNESS my hand and official seal.
_______________________________
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