HomeMy WebLinkAbout5.0 Draft Declaration of Covenants, Conditions, and Restrictions FinalDECLARATION
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
PINYON MESA
OF
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TABLE OF CONTENTS I,
DECLARATION
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ARTICLE I
ARTICLE II
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DEFINITIONS....
Section 2'1 Accessory Dwelling Unit
Section 2.2 Allocated Interest ' ' '- ' ' '
iection 2.3 Articles of Incorporation '
Section 2.4 Assessment
Section 2.5 Association
Section 2.6 Association Propertv ' ' '
Section 2.7 Board
Section 2.8 Budget
S Building Envelope
Section 2'11 Bylaws
Section 2.12 CCIOA
Section 2.13 Common Area
Section 2.14 Common Expenses
Section 2.15
Section 2.17
Section 2.18
Section 2.19
Section 2.20
Section 2.21
Section2.22
Section 2.23
Seclion2.24
Section 2'25
Section 2.26
Section2.27
Section 2.28
Section 2.29
Section 2'30
Section 2.31
Section 2'32
Section 2.33
CountY
Declarant
Deed of Trust
Declaration
Design Guidelines
Design Review Committee '
Lease
Household Pets
Improvements
b!.
Member
Mortgage
Mortgagee
Mortgagor
Notice and Hearing
Noxious Weeds
OccuPant
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2
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4
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Section 2.34 Owner
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Section 2.35
Section 2.36
Section 2.37
Section 2.38
Section 2.39
Section 2.40
Section 2.41
Person
Pinyon Mesa P.U.D. Plan ' '
Plat.
Regular Assessment
Reimbursement Assessment
Rules andRegulations''''
Special Assessment
8
8
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ARTICLE III
GENERAL RESTRICTIONS APPLICABLE TO THE
COMMON INTEREST COMMI]NITY .
..10
..10
. 1+!
.. 11
.. 11
Section 3.1
Section 3.2
Section 3.3
Section 3.4
Section 3.5
Section 3.6
Section 3.7
Section 3.8
Development Control
E en e ral M a in ten a n;of C o m m o n Int e re s t C o m m u n itY
Building Envelopes
Design Guidelines '
,,,12
... l3
... 13
... 13
i:
/x
Fireplaces
No Unsightliness
urd Ttn.h uod Co-Pott'Co"tnio"tt
Gtfr;rking. Storase. Operation and Repair
Animals
RestrictionsonEquipment.Tanks.Antennae.SatelliteDishes.Etc
Drainage Restriction
6
Section 3.10
Section 3.11
Section 3.12
Section 3.13
Section 3.14
Section 3.15
Section 3.16
Section 3.17
Section 3.18
Section 3.19
Section 3.20
Section 3.21
Section 3.22
Section 3.23
Section 3.24
Section 3.25
Section 3.26
.t4
. t5
. 15
. 15
. 15
.16
.t7
l8
19
Fences Prohibited orRestricted' " -''G-f Eur.to.nt A.eut: Utilit" L'stolatio" ' ' ' '
ilrrdscaping and I.rigation Regulations
Driveways and Road Surfaces
Basketball Goals
ilhrrrirrg Pool.. Spos. uod Rtluted Eqoipmt't
Signs and Advertising
...19
...19
,.,20
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,...21
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,.,28
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Section 3.27
Section 3.28
Section 3.29
Section 3.30
Section 3.31
Section 3.32
Section 3.33
Section 3.34
Section 3.35
Section 3.36
Section 3.37
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'))
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.23
23L
Leases
Right of Entry
House Size Regulations
Ilealth. Safetv and Welfare ' ' '
Implementation and Variances
Declarant Activities
Countv Approvals
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25
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25
26
26
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.282
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Section 1 -.4-<
ARTICLE IV
DESIGN REVIEW COMMITTEE . .
Section4.lEstablishmentofDesignReviewCommittee.
Section 4.2 Meetings and Action of Committee
Section 4'3 Records of Actions
Section 4.4 Design Guidelines
Section 4.5
Section 4.6
Section 4.7
Design Review Fee
Approval
Section 4.8
Section 4.9
Section 4.10
Section 4.11
Section 4.12
Section 4.13
Section 4.14
Section 4.15
Section 4.16
Right to Inspect
Decisions of Committee
Completion of Work After Aporoval
Certificate of Compliance
ffi ;r&eA')
oK
3E
32
Registration of Builders
Section 4.17 Enforcement
Section 4.18 Coordination with Building Permit Process
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...33
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. .315
...35
. .356
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ARTICLE V . . .359
. . .359
. . .359
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ASSOCIATION PROPERTY .
Section 5.1
Section 5.2
Section 5.3
Section 5.4
Section 5.5
Propertv
Section 5.6
Section 5.7
Section 5.8
Section 5.9
ARTICLE VI
Section 6.1
Section 6.2
Section 6.3
Section 6.4
Section 6.5
Section 6.6
Section 6.7
Section 6.8
Section 6.9
Section 6.10
Section 6.11
Section 6.12
Section 6.13
ARTICLE VII
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EASEMENTS
Section 7.1
Section 7.2
Section 7.3
Section 7.4
Section 7.5
Section 7.6
ARTICLE VIII
DECLARANT'S RESERVED RIGHTS
Construction of Improvements
Sales. Marketing and Management
Declarant Control of Association
il*utioo of Additiorul Urr.r""ifi"d R"nl E.tot.
Withdrawal Rights and Procedure
Effect of Expansion or Contraction
Subdivision of Blocks or Lots
f*rr.fe, of Additiorul P"ope.tv tp Attotiutio"
bther Reserved Development RigLts
Transfer of Declarant's Reserved Rights
i""*irutio, of D..lu.u"t" R"ttrytd Rieht'
6-rcr Review. Aile,tance and W'iver of Rights Regardine
Dffi-.rrt Pl"n "od
Dttl"tnnt" B"t"*td Ri'htt
Declarant as Attorney-in-Fact For Owners
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389
421
423-
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412
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....42
J:Easements for Incidental Encroachments
Utility and Drainage Easements
Blanket Emergency Services Easement ' ' '
Easements Deemed Created
Restrictions on Owners in Easement Areas
Recorded Easements and Licenses
ASSOCIATION
Association . . .Section 8.1
vl
Association Board
MembershiP in Association
Voting Rights of Members
iliod--of D.clatont Co,,ttol of Attotiatiot
ARTICLE IX
POWERS AND DUTIES OF ASSOCIATION
Sectiong'lGeneralPowersandDutiesofAssociation
Section 8.2
Section 8.3
Section 8.4
Section 8.5
Section 8.6
Section 9.2
Section 9.3
Section 9.4
Section 9.5
Section 9.6
Section 9.7
Section 9.8
Section 9.9
Section 9.10
Section 9.11
Section 9.12
Section 9.13
Section 9.14
Section 9.15
Section 9.16
Section 9.17
Section 9.18
ARTICLE X
Power to Grant Easements
Association Services
Consultants and Managers
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459
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612
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Dutv to PaY Taxes
Dutv to Keeo Association Record-s
Fto srppo.t De.ig,, Re'i"t' co--itt""
Insurance
6uIug. to Corn-oo Iotttttt Co*-ooity ' '
Limited Liabilitv
Section 10'1
Section 10.2
Section 10.3
Section 10.4
Section 10.5
Section 10.6
Section 10.7
Section 10'8
Section 10.9
Section 10.10
ASSESSMENTS . .
Assessment Obligation and Lien
StatutorT Lien
m;;erior to Homestead and other Exemptions
Prioritv of Lien
Perfection of Lien
Regular Assessments
Association Budget
Special Assessments
Reimbursement Assessments
Section 10.1 1 Statement of Unpaid Assessments
vii
662
Section l}.l2
ARTICLE XI ...662
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EMINENT DOMAIN
Section 11.1 Definition of Taking
Section 1 1.2 Taking of Lots
Section 11.3 Miscellaneous
ARTICLE XII
Section 12.6
Section l2'7
Section 12.8
Section 12'9
Section 12.10
Section 12.11
Section 12.12
Section 12'13
Section 12.14
Section 12.15
GENERALPROVISIONS . .' . .
Section l2.l
Section 12.2
Section 12.3
Section 12'4
Section 12.5 Rights of First Mortgagees
Notice
Conflict With Plats .
Cantions
Singular Includes Plural
Remedies Cumulative
DurationofDeclaration ''''
ffiGi6n of Co--oo Iotttttl -Co--'oity
Amendment of Declaration and Plat
Compliancel Enforcement 6eD
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Section 12'16 Costs and Attorneyst Fees
Section
Section 12.18 Severability
iection 12.19 Disclaimer Regarding Safety
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PINYON MESA.
RECITALS
"Declarant")
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Declarant is the owner of that certain real property a3s;rifa on Exhibit A' attached
hereto and incorpor;;;i;;;6,er"inatel; nnvln Mesa" or "Property" or "Common
Interest CommunitY")'
PinyonMesahasplannedunitdevelopmentzoningapprovalbytheCountyofGarfield
for the development of eighty (80) single family Lots'
Declarant intends to develop Pinyon Mesa as a planned community under the colorado
Common Interest OwnershiP Act'
pinyon Mesa Homeowners Association,Inc', a colorado non-profit corporation' has been
formed to exercise ;; ffiilrns set roit, r'"'"i" and to o*n' leu'"' hold' operate' care for
and manage certain property for t\ "o-*o, i.nefit of owners and occupants of Lots
withinPinyonMesa,andofanyotherp.,'""'".e"iringaninterestinPinyonMesa.
Declarant desires to establish covenants, conditions and restrictions upon the common
Interest Community and certain *,t"rjiit"efitiut restrictions and limitations with
respect to the propi, use, occupan"y, #;;;.rt"tit *a,enjoyment thereof' all for the
purposes of enhanJi^ng and proiecti"g ii-,l ""r'e' desirability and attractiveness of Pinyon
MesaandenhancingthequalityoflifewithintheCommonlnterestCommunity'
Declarant desires and intends that the owners' Mortgagees' occupants and all other
persons hereafter acquiring interest h;il;; M.ruIniu ui at ti"t enjoy the benefits of'
and shall hold their int.r"i subject to, the covenants, conditions' restrictions'
assessmentr, "t "rl.r, ,rrvitudes, li;, ;;;;r,i*t and easements contained in this
Declaration, as it iray be amended from time to time'
The common Interest Community shall also be subject to covenants, conditions and
restrictions of that certain Declaratiorii:'a;;;;i;g Declaration") recorded July 27 '2006
in Book tBZ5 atpage 363,in the ,""i';;;r.y i..I'a' of Garfield Countv' Colorado' and
5
6.
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1
the terms and conditions of Resolution No' 96-34 recorded June I 8' 1996 at Reception
No. 494584 *a orn.rolution No. 2007-a'(he "Resolutions") recorded February 8'2007
in Book 1893 at Page 363,in the ,eal p,ope)fr-records of Garireld County' Colorado' In
the event of any .onni., between tt" "o'inunts'
conditions' restrictions and terms of this
Declaration urra tn" coverning Declaration *d/o, Resolutions' the Goveming
Declaration and/or Resolution-s shall control' In the event of any conflict between the
covenants, conditions, restrictions *a t".ttt oittt" Governing Declaration and the
Resolutions, the Resolutions shall control'
Now, THEREFORE, for the purposes set forth aboye and herein, Declarant, for itself
and its successors and assigns, hereby atlt*t'that Pinyon Mesa' and each part thereof' shall be
owned, held, transfeJ"d,;;;.y.a, ,ora, i"ur.d, r.rrt.d,.hypothecated, encumbered' used'
occupied, i*prou"A, ui[..a, -iir,uirrra'*J.".ioyed subje.t to th" covenants' conditions'
restrictions, urr"rr*Jrir,.rr*g"r, ,"*itJ..,lilns, reservations, exceptions' easements'
privileges, rights J;dproririor,. h;;i;;ft.r set forth, for the duration hereof' all of which
are declared to be part of, pursuant to, *Jffinht'*tt of a common and general plan of
development, improve,n.,,t, enhancement, use, occupancy and enjoyment of the Common
Interest community, and alr of which rr,uriroo*ith ihe land and Lebinding upon and inure to the
benefit of (i) the Co*.on Interest Community and every part thereof' (ii) Declarant and its
successors and assigns, (iii) the Association and its """""o" *d a"ignt' (iv) every Member of
the Association, and (v) all owners, o;;;;i, and other persons having or acquiring any right,
title or interest i' o, to ih" Co**on Interest Community or any part thereof' or'any Improvement
thereon, and their respective heirs, p.r*iJ "presenlative'' """"ors and assigns' Provided
always, that to ttt. .*i*t1tis Deciarati"t pt*iAts that.Declarant shall not be bound by or is
exemptfromtheapplicationofcertain.o,***,conditionsandrestrictionscontainedherein,
Declarant .t utr noi'u. consiaered subject to such covenants, conditions or restrictions' This
Declaration shall be recorded in Garfieil Co*'y' Colorado' *a tnm be indexed in the Grantee's
Index in the name of pinyon Mesa *d;. A;r;;ation and in itre crantor's Index in the name of
ililM;ru norairet iLc and Pinyon Mesa Development' Inc'
ARTICLE I
DECLARATION
ARTICLE II
DEFINITIONS
The following terms have the following meaning when used herein unless the context
otherwise requires:
Section 2.1 Accessory Dwelling Unit. o.Accessory Dwelling Unit,, means any separately
occupiable apartmerr;-t lcontaining a separate kitchen and outside entrance)'
2
Section 2'2
Section 2.3
Section 2.4
Section 2.5
Section 2.6
Section 2.7
allocated as follows:
Allocatedlnterest'..Allocatedlnterest,,meanstheCommonExpenseliability
andthevotesintheAssociationallocatedtoeachLot,whichinterestsare
Articles of Incorporation. ]|rticlls,of Incorporation,, or..Articles,, means the
Articles of Incorporur:tilrrinyon t t.ru rto*.o*o"r. Association' Inc'' which
have been rrr.a *itriii.-om.. ortn. stJ"-t*y of State of the State of Colorado'
ur ,t " tu*. may be amended from time to time'
(l)
date of the calculation'
(2)One (1) vote in the Association is allocated to each Lot in the Common
Interest CommunitY'
and/or assigns'
thereon.
Board. "Board" shall mean and refer to the Board of the Pinyon Mesa
ffit*o*"rs Association, Inc'
TheCommonExpenseliabilityforeach,Lotiscalculatedonthebasisofa
fraction, the numerat"o-r "i*rriln
is one tllana the denominator of which
is the total number oilor, in the common Interest community as of the
Assessment. "Assessment" means a Regular Assessment' Special Assessment or
R"i*b,rtt.ment Asses sment'
Association."Association"shallmeanandrefertothePinyonMesa
Homeowne* erro.iuion,-rn.., a colorado nonprofit corporation, its successors
Association Property' "Association Property" means' to the extent of the
Association,, int"r.iltherein: (a) all ,.ui*d personal property, including
Improvemen r,,o* o, i.i.ut", o*.0 o, f""J,ra by the Association; (b) all
common Areas ."*;;;;"*., "*r"d;i;;;;; ;. maintained bv the Association'
together with all improvements thereon; (c) all ea19m1nt1or dedications created or
reserved on any pd';;;;;;;.."1ptat, or in this Declaration or in anv
Supplemental Declaration, oi in any ,.;il'"gr""m"nt,tot the use and benefit of
the Associatio, *J**ii" owners, *a'Gl *v *ater.rights. ditch rights, and
water systems, faciiities and/or features i; il:'F: ttt3[i'l that may be owned'
leasedormaintainedbytheAssociationorwhichtheAssociationisentitledto
use.AssociationPropertymaybetocatedwitrrinoroutsidetheCommonlnterest
community. with;:;xcepion of easements which are Association Property'
AssociationPropertydoesnotincludetheLotsorthelmprovementsconstructed
J
Section 2.8
Section 2.9
Section 2.10
Section 2.11
Section 2.12
Section 2.13
Section 2.14
Interest
Budget. "Budget" means a written itemized estimate of the Common Expenses to
be incurred by the Association in performing its functions under this Declaration
*auaop'.dbytheeoa,opursuanttoSectionl0.TofthisDeclaration'
Building Envelope. "Building Envelope" means that portion of a Lot which may
be depicted *A A.rignut.a u, it 9 'Buiiding Envelope" or, if no such depiction or
O.rign*ion is madi"G area within setback lines of a Lot on the Plat'
Bureau of Land Management Lettqr'
g*"u, of Land Management containing
A letter dated August 22,2006, from the
comments relating to the Common
records of Cafietd e '
Bylaws. ..Bylaws,, shall mean and refer to the Bylaws of the Pinyon Mesa
Homeowners Association, Inc., a Colorado nonprofit corporation.
CCloA.CCloAshallmeanandrefertotheColoradoCommonlnterest
ownershipAct,IocatedatSections38-33.3-101(etseq.),ColoradoRevised
Statutes.
common Area. ,,common Area" means any portion o-f the common Interest
Community a"rigrut.J in this Declaration oi uny Supplemental Declaration or on
aPlatoranySupplementalPlatasCommonAreaoropenSpaceandwhichis
owned or leased or maintained by the Association for the common use and
enjoyment of the owners and occupants or some of them, including, but not
limited to, open space, wildlife space, pathways, trails, and common access roads'
Common Expenses. Common Expenses shall mean and refer to expenditures
made or liabilitie, in.r..a by or on behalf of the Association' together with any
allocations to reserves, incluiing, but not limited to, the following:
(1)Thecostsofmaintenance'management'operation'repairand
replacement of the Association Property, and of all other Parts of the common
Interest community which are managed or maintained by the Association;
(2)Thecostsoflmprovementsconstructedfromtimetotimebythe
Association on or in connection with Association Property, if such costs were
included within a duly adopted Budget;
(3) UnPaid assessments;
4
(4)ThecostsofmanagementandadministrationoftheAssociation,
inctuding,butnotri-iteato,com-pensationpaidbytheAssociationtomanagefs,
accountants, attomeys and employees;
(5)Thecostsofutilitiesandservices(including,butnotlimitedto,
treated or untreated water, electricity, gur, ,r*..,irash pick-up and disposal and
recycling), which *. pio'iatd 10
th;. Association or the Common Interest
Community or parts tt;reof and not individually metered or assessed to Lots'
landscapingmaintenance,andotherservice'*r,i11e.11'.1||ybenefitandenhance
the value and desirability of the common Interest community or parts thereof and
*ii"n are provided by or on behalf of the Association;
(6)ThecostsofinsurancemaintainedbytheAssociationasrequiredor
permitted herein;
(7)Reasonablereservesforcontingencies,replacementsandother
proper purposes u, Jtt-ta appropriate UV tne nolO::::tt anticipated costs and
expenses including, iut not limited to, maintenance, repair and replacement of
Association frop.rritt ri "rrt, be maintained, repaired or replaced on a periodic
basis;
(8)ThecostsofbondingthemembersoftheBoard,theofficersofthe
Association, *y proi"ssional managing agent or any other Person handling the
funds of the Association;
(9) Taxes Paid bY the Association;
(10)AmountspaidbytheAssociationforthedischargeofanylienor
encumbran..t.ui.aug,i''.n'*ciationPropertyoranyportionthereof;
(11)ThecostsincurredbytheDesignReview-Committee'andbyany
other committees that may be established from time to time by the Board;
(|2)Thecostsofanysecurityorsecuritysystemsorservicesthatmay
be installed, operated, monitored or contracted for by the Association for the
benefit of the Common Interest Community;
(13)Allexpensesexpresslydeclaredtobe.CommonExpensesbythis
Declaration o, uy-u s'upplemental Declaration, and all expenses lawfully
determined to be Common Expenses by the Board; and
(14)otherexpensesincurredbytheAssociationforanyreason
whatsoever in connection with Association Property, or the costs of any other item
5
or service provided or perfonned by the Association pursuant to this Declaration'
any Supplemental Deciaration, the Articles, Bylaws, or Design Guidelines, or in
furtherance of the purposes of the Association or in the discharge of any duties or
powers of the Association. In the event that any common services furnished to the
Common Interest Community are part of services that are provided to or benefit
property in addition to the common Interest community, common Expenses shall
only include the cost ofsuch services reasonably allocated to the services provided
to the Common Interest CommunitY'
Common Interest Communitv. "Common Interest Community" means all of the
land area as shown on the Plat together with all lmprovements and other amenities
now or hereafter located thereon, and together with all easements, rights'
upp.rn.rr*ces and;;i;ilr;., belonging or in any way pertaining thereto, plus any
additional real property arine*ed theret-o and/or minus any real property withdrawn
therefrom.
Section 2.15
Section 2.16
Common Interest
Section 2.17
Section 2.18
Section 2.19
Section2.20 Declaration'Declaration shall mean and refer to this Declaration of Covenants'
Conditions and Restrictions for PinYon Mesa, recorded in the real property records
of Garfield CountY, Colorado in Book at Page as RecePtion No
as it may be amended or supplemented from time to time.
Countv. County means Garfield County, Colorado'
Declarant. ,'Declarant" means Pinyon Mesa Holdings, LLC and Pinyon Mesa
Development, Inc., their succerrorr, assigns, and affiliat.t..l Person shall be
deemed to be a ,,successor and assign" oiDeclarant if specifically designated in a
duly recorded instrument as a successor or assign of Declarant under this
Declaration and shall be deemed a successor and assign of Declarant only as to the
purti"rrr* rights or interests of Declarant under this Declaration which are
'specifically-designated in that written instrument. The term "affiliate of
Declarant" shall trave ihe meaning set forth in Section 38-33'3-103(l) of the
CCIOA.
Deed of Trust. "Deed of Trust" means a Mortgage'
Design Guidelines. "Design Guidelines" means the rules, procedures, standards'
ilA;ltr.r *d *q"irement-s promulgated from time to time by the Design Review
6
Section 2.21
A letter dated August
28,2006, from the Colorado State Forest Service relating to the Common Interest
Community which sets forth the standards for mitigating wildfire hazards in the
Section2.22
Section 2.23
Section 2.24
Section 2.25
Section 2.26
Committee, and all amendments thereto, governing the review and approval or
disapproval of proposed Improvements within the Common Interest Community,
the registration-of tuilders, and such other matters as the Design Review
Commifiee considers necessary or appropriate, recorded in the real property
records of Garfield County, Colorado, in Book at Page
-,
as Reception
No as they may be amended or supplemented from time to time
pursuant to this Declaration.
Design Review Committee. "Design Review Committee" means the committee
provided for in Article IV of this Declaration'
Lease. "Lease" means and referS to any agreement for the leasing, rental, use oI
ffi*"y of a residential dwelling located on a Lot within the Common Interest
Community. The required terms and procedures for Leases are more particularly
set forth in Section 3.29 below'
Household pets. "Household Pets" means generally recognized household pets
such as dogs, cats, fish, birds, rodents and non-poisonous reptiles.
ImprOvementS. "Improvements" means any imprOvements, StruCtural Or
"th"r*tr., "lterations,
additions, repairs, excavation, grading or landscaping
within the Common Interest Community, including, but not limited to, dwelling
units, buildings, outbuildings, additions, swimming pools, patio covers, awnings,
the painting, ,tuirrirrg or other change of any exterior surfaces of any visible
structure, walkways, outdoor sculptures or artwork, sprinkler or irrigation systems,
garages, carports, roads, driveways, parking areas, ponds, ditches, fences,
i"reenirg *ullr, retaining walls, stairs, decks, flag poles, fixtures, landscaping
(including the addition, alteration or removal of any tree, shrub or othel
,egetution;, hedges, windbreaks, plantings, planted trees and shrubs, gardens,
poLr, signs, tanks, solar equipment, wind harnessing or other energy generating
Lquipment, exterior air conditioning, water softener fixtures, utilities, antennae
and iatellite dishes or receivers. Once an Improvement has been constructed or
accomplished on a property within the Common Interest Community, any
subsequent alteration of or addition to or removal of that Improvement shall also
constitute an "Improvement" hereunder.
Lot. Lot shall mean and refer to each lot as shown on the Plat and, for all legal
pu{poses, it shall be sufficient to describe each lot as follows:
Lot
-,
Pinyon Mesa P.U.D. according to the Final Plat thereof, recorded in
Book - at Page as Reception No. in the real
property records of Garfield County, Colorado'
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Section2.Z7 Member. "Member" means each Lot Owner, including the Declarant.
Membership in the Association shall be appurtenant to, and may not be separated
from, ownershiP of a Lot.
Section 2.28 Mortgage. "Mortgage" means any mortgage, deed of trust or other security
irrrt ,il.-rrt, given voiuntarily by the Owner of a Lot, creating areal property
security inieiest in a Lot und recorded in the real property records of the Clerk and
Recorder of Garfield County. "First Mortgage" means a mortgage which is the
hrst and most senior of the ii4ortgages on the same Lot. The term "Mortgage"
does not mean a statutory, tax orludicial lien. The term "Deed of Trust" when
usedhereinshallbeSynonymouswiththeterm''Mortgage.''
Section 2.29 Mortgagee. "Mortgagee" means a mortgagee under a Mortgage or a beneficiary
under a Deed of Trust, as the case may be, and the assignees of such Mortgagee'
Section 2.30 Mortgagor. "Mortgagor" means the maker, obligor or grantor of a Mortgage'
fhe ffi--.Vtortgagor';includes a trustor or grantor under a Deed of Trust.
Section 2.31 Notice and Hearing. "Notice and Hearing" means a written notice and hearing
before the Board and/or Design Review Committee, or a panel appointed by the
Board.
Section 2.32 Noxious Weeds. "Noxious Weeds" mean those weeds listed by the Vegetation
Management Department of Garfield County, Colorado, as such list may be
amended by the County from time to time'
Section 2.33 Occupant. "ooCUpant" means any Person who is a tenant pursuant to Lease with
the Owner thereof. "Occupant" alio means any Person who is present within the
Common Interest Community as a family member, guest or invitee of an Owner,
an Occupant, the Declarant, ot the Association'
Section 2.34 Owner. "Owner" means the Person, including Declarant, or, if more than one, all
persons collectively, who hold fee simple title of Record to a Lot, including sellers
under executory contracts of sale and excluding buyers thereunder.
Section 2.35 person. ,,person" means a natural person, a corporation, a partnership, a limited
liability company, a trust, or any other entity capable of holding title to real
propertypursuanttothelawsoftheStateofColorado'
Section 2.36 Pinyon Mesa P.U.D. Plan. "Pinyon Mesa P'U'D. Plan" means the P'U'D' Plan
fo.ffi, tut"* uaopted and approved by the County of Garfield in Ordinance
No.-on-,200_,acopyofwhichisrecordedinthereal
8
Section 2.37 Plat. "Plat"means the Final Plat of Pinyon Mesa, as recorded
as Book
-,Page
and as RecePtion No'
office of the Clerk and Recorder of Garfield CountY,Colorado, as said Plat
200_,
in the
may
be amended from time to time'
Section 2.3g Regular Assessment. ',Regular Assessment" means a charge against an Owner
and the Owner's Lot for;;il;;"t of covering the annual costs of operating and
ud*irrirt.ring the Rrro"iution and all other common Expenses. Regular
Assessments are based or-u g"dg"t adopted by the Board in accordance with
Section 10.7 below, and are allolated to ttre Lots in accordance with the Allocated
Interests, except that common Expenses that in the judgment of the Board benefit
f";il;;il1;;L*r rt utt u.hlocated exclusively to the Lots benefitted'
section 2.39 Reimbursement Assessment. "Reimbursement Assessment" means a charge
against a particular O*rrL arra the Owner's Lot for purpose of reimbursing the
Association for costs *J.*f."res incurred by the Association in connection with
the enforcement of any p.o,rision hereof or the remedying of any violation by the
owner or an occupant of this Declaration or any amendment hereto or any
s"ppi.r*"t"IDeciaration, the Articles, Bylaws, or Design Guidelines, or any
approvals granted by the Design Review committee, or for other purposes set
forth in the Declaration, purstilnt to Section l0'9 hereof' together with late
charges and interest as provided for herein' Reimbursement Assessment shall
include without limitatior.l any Common Expense caused by the misconduct of any
Owner or of such Owner's Occupants'
section 2.40 Rules and Regurations. ,,Rules and Regulations" means rules and regulations
uao@ebytheBoard,asprovidedinSection9.8ofthis
Declaration.
Section 2.41 Special Assessment. ',Special Ass.essment" means a charge against an Owner and
the owner's Lot for p"tp'ot"t of reimbursing the Associatiorr for costs and
expenses incurred or to Le incuned by the ,{ssociation for the purpose of paying
for the construction, reconstruction, rlpair, maintenance or replacement of capital
improvementstooruponorservingtheCommonlnterestCommunity,thecosts
ofwhichwerenotincludedinaRegulalAssessment,orforexcessreconstruction
costs or other extraorai*.y "*p.nrIr,
or for funding any operating deficit o.f the
Association, as authori."iilihe Bourd from time to time as provided herein'
specialAssessmentsshallbebasedonaBudgetadoptedbytheBoardin
accordance with Section 10'8 below'
section2.4Z Wildlife Anatysis Impact and Mitigati-on Report' A Wildlife Analysis lmpact
andMitigationReportToffi "-corn*onlnterestcommunitya;s-rceo'rde#at
9
€o*orada
rs attacneA nereto as gxtril:lg
ARTICLE III
GENERAL RESTRICTIONS APPLICABLE TO THE
COMMON INTEREST COMMUNITY
It is the intention of Declarant to establish and impose a general plan for the
improvement, development, use and occupancy of the Common Interest Community, all in order
to enhance the value, desirability, and attractiveness of the Common Interest Community and to
promote the marketing, development and enjoyment thereof. Accordingly, Declarant hereby
declares that the entire Common Interest Community, including, but not limited to all Lots, shall
be owned, held, used, occupied, improved, altered, maintained, conveyed, leased, encumbered
and enjoyed subject to the following covenants, conditions, restrictions, reservations, easements,
rights and other provisions, and to the further requirements and restrictions set forth in the Design
Guidelines, subject to such Declarant exemptions as may be set forth herein.
Section 3.1 Development Control. Except for Improvements of any nature constructed,
installed or placed within the Common Interest Community by Declarant pursuant
to the Pinyon Mesa P.U.D. Plan, which Improvements shall not require approval
of the Design Review Committee, and unless otherwise expressly provided in this
Declaration, (i) no residence, building, structure, fence, wall, landscaping or other
Improvement shall be commenced, erected, improved, altered, made, done,
permitted, located or removed within the Common Interest Community without
the prior written approval of the Design Review Committee, and (ii) all
subsequent additions to or changes or alterations in any residence, building,
structure, fence, wall, landscaping or other Improvement, including, without
limitation, exterior color scheme, and all changes in the grade of Lots, shall also
be subject to the prior written approval of the Design Review Committee. No
modifications from the approvals granted by the Design Review Committee shall
be made without the prior written approval of the Design Review Committee.
Notwithstanding the foregoing, in the event of an emergency or the sudden
occrrrence of unanticipated conditions which threaten the health, safety or
physical well-being of Persons or property within the Common Interest
Community, the Board and/or the Design Review Committee shall have the
authority (without the prior approvals described above) to take whatever remedial
action may be necessary anywhere in the Common Interest Community to protect
Persons and property until such time as applicable notice and/or approval
procedures can reasonably be utilized. Further notwithstanding the foregoing,
Design Review Committee approval shall not be required for Improvements made
l0
Section 3.2
Section 3.3
by Declarant in the exercise of any development rights or special Declarant rights
reserved by Declarant in this Declaration.
Violation of Law. Insurance. Etc. No Owner or Occupant or Person shall do
any act or cause or permit anything to be done or kept in or upon aLot, a
residence constructed thereon which would result in the increase of, or
cancellation of, insurance maintained by the Association or would be in violation
of any federal, state, town or other law, ordinance, regulation or code of any
governmental body having jurisdiction or of any provision of this Declaration.
General Maintenance of Common Interest Communitv. All property within
the common Interest Community, including, without limitation, all Lots
(including unimproved Lots, and Lots on which Improvements are under
construction),Improvements, and landscaping, shall be kept and maintained in a
clean and attractive condition and in good order, condition and repair'
(l) Except as specifically set forth in this Section 3.3, maintenance,
repair, and upkeep of each Lot and the Improvements thereon (including attractive
painting and refinishing thereof at regular intervals) shall be the responsibility of
ih. O*rr"r of the Lot. Such maintenance and repair shall be performed by each
Owner whenever necessary or appropriate and at regular intervals in order to keep
the Lot and Improvements in substantially the same condition and appearance as
existed at the time of completion of construction, subject to normal wear and tear
that cannot be avoided. Said Owner obligations shall include all maintenance,
repair or replacement required as a consequence of any fire, wind, vandalism, theft
oiother casualty. With respect to a Lot, this maintenance obligation extends to all
lands and landscaping within the Lot lines. Unsightly conditions on a Lot shall
constitute a nuisance under this Declaration.
(2) The individual Owners shall use a reasonable standard of care in
providing for the repair, management and maintenance of the properties for which
th.y *. iesponsible so that the entire Common Interest Community will reflect a
pride of ownership.
(3) If an Owner fails to perform any of such obligations within ten (10)
days following receipt of a written notice from the Board requesting the same, the
Board shall have the right to enter upon the Lot of the Owner to cure the violation,
to perform any needed repairs or maintenance, or to otherwise cause compliance
wiih ttris provision and to levy and collect a Reimbursement Assessment upon the
Owner and its Lot for the costs and expenses incurred by the Association in
connection therewith. The Board shall have no right to enter into the interior of a
residence without the consent of the Owner except in the case of a clear
emergency.
ll
Section 3.4
Section 3.5
Residential Use and Occupancy. Each Lot shall be improved, occupied and
,s.A *ty for private residential purposes. Only one single-family residence may
be erected, altered, placed or permitted on each Lot. No structures whatsoever,
other than those permitted by the Pinyon Mesa P.U.D. Plan or by other applicable
County zoning regulations and approved in writing by the Design Review
Committee, shall te erected, placed or permitted to remain on any Lot' No office,
business and/or commercial structures shall be permifted within the Common
Interest Community. Except as so allowed, no business, plofessional or other
non-residential or commercial use shall be made of any Lot, or conducted in any
residence constructed on a Lot, excepting for home occupations which shall mean
an occupation by the resident of the Lot conducted totally within the residence on
the Lot and which do not involve: (i) the employment of third persons on the Lot,
(ii) the solicitation or invitation of the general public, or (iii) the servicing of_
customers, does not entail the delivery of goods or services to customers on the
Lot, nor cause any additional traffic or parking within the Common Interest
Community or otherwise create a nuisance for neighboring Lots or the Common
Interest Community. No equipment or materials incident to any business or
occupation (whethir conducted within the residence or elsewhere) shall be kept or
stored on any Lot except within the residence, gatage, or other outbuilding
approved bythe Design Review Committee. Notwithstanding the foregoing,
u.ii.riti.r normally asiociated with the sale by the Declarant or an Owner of an
improved or unimproved Lot shall be allowed, subject to any limitations contained
in this Declaration.
New Construction Required: No Temporary Buildings or occupancy. All
Improvements constructed within or placed upon the Common Interest
Community shall be new. No mobile homes (single or double wide) and no used
or temporary house, structure, or non-perrnanent out-building (specifically
includiing rnobile homes, trailers, tents or shacks) shall ever be placed, erected or
allowed to remain within the Common Interest Community except temporary
structures or construction trailers approved in advance by the Design Review
Committee which are used for construction purposes during the construction of a
residence, which temporary facilities shall be removed immediately following
completion of construction and in any event no later than 18 months following
commencement of construction or remodeling unless a wfitten extension is
granted by the Design Review Committee. No trailer, mobile home, incomplete
iesidence or other siructure other than a residence completed in accordance with
approved plans, shall ever be used or occupied at any time for residential
p.rrpor.t,iither temporarily or permanently. No completed residence on a Lot
.t uit U. occupied in any manner until all provisions of this Declaration and of the
Design Guidelines and all conditions of development approval have been
"o*fli"d with, and a Certificate of Compliance has been issued pursuant to
t2
Section 3.6
Section 3.7
Section 3.8
Section 4.13 below. The work of constructing, altering or remodeling any
residence on a Lot or any other Improvement within the Common Interest
Community shall be prosecuted diiigently from the commencement thereof until
the completion thereof.
Building Envelopes. All Improvements on a Lot must be located entirely within
tl" Brtldtrrg E"*lope, including, but not limited to, dwellings, detached patios
and decks, garages, ilut excluding roof overhangs, access driveways, underground
utilities, and irrigation and drainage systems. The Design Review Committee may
uppror. the tocaltion of certain Improvements outside the Building Envelope' such
uri*dr"uping, fences and attached patios and decks. Notwithstanding the
foregoing, an! and all modifications to the Building Envelope are prohibited'
Design Guidelines. All Improvements, excavation and other land disturbance'
;;il;t,.rr, t."d*aping and inigation activities within the Common Interest
Community shall be striJtty governed by the procedures.,standards, guidelines'
restrictions and requirements set forth in the besign Guidelines' A violation of
the Design Guidelines shall constitute a violation of this Declaration and may be
enforcedin accordance with the terms hereof'
Annoying Lisht. sound or odor. All exterior lighting installed or maintained
on any Lot or on *y t-p.ovement located on a Lot in any Common Area,
easement or right oi*uy in the Common Interest Community shall be located and
installed so that thalight source illuminates only the ground plane and so. that the
light source is not visible from any location off of the Lot, and so that adjacent big
game winter ranges are not lit by backyard lights within the Building Envelopes'
fro light shall be emiued from any part of the common Interest community
(inclriding any Lot) which is unreasonably bright or caus€s unreasonable glare'
without limiting tie generality of the foregoing, no spotlights, floodlights or other
high-intensity fignts Sall be permitted witfrin the Common Interest Community
without the prior written appioval of the Design Review Committee' Skylights
may be allowed only if darkly tinted glazingis used to reduce light spill from
interior spaces. The Design ileview Committee may establish more restrictive
standards for exterior lighiing including, without limitation, standards for hue and
intensity. Night time H[hting of Lots *d/o, the Common Areas is discouraged
above and beyond what'is re[uired for safe driving conditions, so as to allow night
time use by mule deer and elk.
No sound shall be emitted from any part of the Common Interest Community
(including any Lot) which is unreasonably loud or annoying to others, and-no odor
shall be emitted f.rn *y part of the Common Interest Community (including any
Lot) which is noxious o.,r*.urorrably offensive to others. Again withoyt limiting
thelenerality of the foregoing, no exterior speakers, horns, whistles, bells, or
13
Section 3.9
other sound devices, other than security devices used exclusively for security
purposes, shall be located or used within the Common Interest Community except
with the prior written approval of the Design Review Committee.
The Board, in its sole discretion, shall have the right and authority to determine
the existence of any violation of this Section 3.8, including the reasonableness of
any light, sound or odor.
Noxious or Offensive Activities: Nuisances: Construction Activities. No
noxious or offensive activity shall occur or be allowed at any time on any property
within the Common Interest Community, nor shall anything be done or placed
thereon which is or may become a nuisance or cause an unreasonable
embarraSSment, disturbance, or annoyance to Owners, Occupants, Declarant or the
Association, or which interferes with the peaceful enjoyment or possession and
proper use of the Common Interest Community, or any part thereof, by Owners or
bccupants. As used herein, the term "nuisance" shall not apply to any activities of
Declarant which are reasonably necessary or appropriate to the development,
improvement, maintenance, matketing and/or sale of the Common Interest
Community or any part thereof. The Board, in its sole discretion, shall have the
right and authority to determine the existence of any nuisance or unreasonable
annoyance under this Section 3.9.
Each Owner shall comply with requirements of all health authorities and other
governmental authorities having jurisdiction over the Common Interest
-ommunity. Normal construction activities and parking, during daylight hours, in
connection with the building of Improvements on a Lot shall not be considered a
nuisance or otherwise prohibited by this Declaration unless they are in violation of
the Design Guidelines or other requirements of the Design Review Committee,
but Lots shall be kept in a neat and tidy condition dwing construction periods,
trash and debris shall not be permitted to accumulate, and supplies of brick, block,
lumber and other building materials shall be piled only in such areas as may be
approved by the Design Review Committee. In addition, construction equipment
and building materials may only be stored or kept within the Common Interest
Community during and in connection with the construction of Improvements
thereon, and then may be kept only in areas approved by the Design Review
Committee, which also may require screening of the storage areas. All such
equipment and materials shall be removed immediately following completion of
construction.
Section 3.10 No Hazardous or Unsafe Activities. No activity shall be conducted on, and no
Improvement shall be constructed on, any property within the Common Interest
Community which is or might be unsafe or hazardous to any Person or property.
Without limiting the generality of the foregoing, and except as allowed below, no
t4
Section 3.1I
Section 3.12
explosives, gasoline, or other volatile and/or incendiary materials or devices or
any materials deemed hazardous or toxic substances under applicable
environmental laws, rules, or regulations shall ever be used, kept, stored,
permiued to remain or be released or disposed of on any Lot or elsewhere within
the Common Interest Community. Gasoline or fuel for an Owner's lawn mower,
snowblower, and the like may be maintained on an incidental basis in an enclosed
structure on a Lot in an amount not to exceed l0 gallons.
Outside Burningl Fire Hazards. No burning or exterior fires of any kind,
including, without limitation, any wood product, construction material, lawn
material, vegetation or other flammable material, shall be lighted or permitted on
any property within the Common Interest Community except in a contained
barbecue unit while attended and in use for cooking purposes. No Owner shall
cause or permit any condition on his Lot which creates aftehazard or is in
violation of fire prevention regulations, or which would increase insurance rates
for other Owners. Without limiting the generality of the foregoing, no fireworks
which expose or leave the ground shall be ignited or used anywhere within the
Common Interest Community.
Fireplaces. In order to protect against the degradation of air quality which occurs
as a result of the use of interior and exterior fire places and other wood burning
devises, and to minimize danger from wildfire which results from exterior
burning, the following restrictions are imposed:
l. No open hearth solid fuel fireplaces, or any wood burning stoves of any
kind, either interior or exterior, shall be allowed within or about any
dwelling unit constructed on any Lot, nor any location within the Common
Interest Community.
Lots shall be allowed an unrestricted number of natural gas burning
fireplaces or appliances.
Section 3.13 No Unsightliness. All unsightly structures, facilities, equipment, objects, and
conditions, sporting equipment (e.g., skis, snowboards, bikes, mountain bikes,
kayaks, etc.), and snow removal, garden or maintenance equipment except when
in actual use, shall be kept in an enclosed structure or in a screened area approved
by the Design Review Committee. No laundry or wash shall be dried or hung
outside any residence.
Section 3.14 Garbage and Trash and Compost Containers. No refuse, garbage, trash, grass,
shrub, or tree clippings, plant waste, compost, metal, bulk materials, scrap,
rubbish, or debris of any kind shall be kept, stored, maintained or allowed to
accumulate or remain on any Lot except temporarily within an enclosed structure
approved by the Design Review Committee. An approved bearproof container
2
l5
containing such materials may be placed next to the street on the designated
moming of garbage collection and must be retumed to its enclosed structure that
same da=y. No garbage containers, trash cans or receptacles shall be maintained in
an unsanitary ot.rntightly condition, and except when placed for pickup they shall
not be visible from another Lot. All such refuse, garbage, trash, plant waste,
compost, metal, scrap materials, rubbish and debris shall be promptly removed
from the Common Interest Community and shall not be bumed thereon. Compost
structures and containels may be placed on a Lot in locations and in containers
approved by the Design Review Committee, provided that no such structure or
container shall be larger than fifty-five (55) gallons.
Section 3.1 5 vehicle Parking. storage. operation and Repair.
(l) Each single-family residence constructed on any Lot shall include a
garage within which adequate space will be maintained at all times for the parking
of tf,i number of vehicles for which the garage was designed. Parking by the
guests of Owners or Occupants will be limited to 48 hours at any one time'
(2) No vehicles shall be parked on public roads accessing the P.U.D'.
(3) No boats, trailers, buses, motor homes, mobile homes, campers (on
or off supporting vehicles), motorcycles, snowmobiles, recreational vehicles, all
terrain u"hi.l.r,-golf carts, trucks, industrial or commercial vehicles (both cabs or
trailers), abandoned, disabled or inoperable vehicles (as defined below), towed
trailer unit, or any other similar vehicles whose primary purpose is recreational,
sporting or commercial use (excepting passenger automobiles and three-quarter
(il+) ton or smaller pick-up trucks) shall be parked or stored in, on or about any
Lot or street in the Common Interest Community, except within enclosed
structures approved in advance by the Design Review Committee. No motor
vehicle of any kind shall be maintained, repaired, repainted, serviced or rebuilt on
any Lot except within a completely enclosed garage which fully screens the sight
and sound of the activity from the streets and other Lots. This restriction shall not
prevent the non-commercial washirig and polishing of vehicles and boats, together
with activities normally incident thereto. Any three-quarter (3/4) ton or smaller
vehicle, commonly known as a pickup truck, shall not be deemed a commercial
vehicle or truck.
(4) No more than two (2) permitted vehicles (passenger automobiles
and/or 314 tonor smaller pick-up trucks) shall be parked at any time in the
driveway of any Lot, except during special occasions and then only for the
duration thereof, and permitted vehicles shall not be parked in any location on a
Lot except the driveway or an enclosed garage.
16
Section 3.16
(5) An "abandoned, disabled or inoperable vehicle" shall mean any
motorized vehicle which does not display a current motor vehicle license or which
has not been driven under its own propulsion for a period of one (l) week or
longer (excepting otherwise permitted vehicles parked by Owners or Occupants on
theii Lot driveways while on vacation or during a period of illness), or which does
not have an operable propulsion system within the vehicle'
(6) In the event that the Board or the Design Review Committee shall
determine that a vehicle is abandoned or inoperable, or is otherwise in violation of
the provisions of this Section 3.15, a written notice of violation describing said
vehicle shall be personally delivered to the vehicle owner (if such owner can be
reasonably ascertained) or shall be conspicuously placed upon the vehicle (if the
owner cannot be reasonably ascertained), and if the offending vehicle is not
removed within seventy-two (72) hours thereafter, the Board or Design Review
Committee (as the case may be) shall have the right to remove and store the
offending vehicle, or cause the vehicle to be removed and stored, at the sole
expense of tn. owner of the vehicle if the vehicle is located on a street, or the
Owner of the Lot on which the vehicle is located, and to enter upon an Owner's
Lot for such purpose, all without liability on the part of the Board or the Design
Review Committee.
(7) Snowmobiles, motorcycles, trail bikes, minibikes, dirt bikes, all-
terrain vehicles, and similar motorized vehicles shall not be used or operated (but
may be transported on trailers) within the Common Interest Community, except
thai motorcy"l"t p.op"rly licensed for operation on public roads may be used on
public streets within the Common Interest Community.
(8) All approved ADUs shall provide for one additional parking space
for each such ADU.
Animals. Each Lot shall be entitled to a maximum of one (l) dog and a
reasonable number of other Household Pets, unless otherwise approved by the
Board, so long as such dog or other Household Pets are not kept for any
commercial purpose, are not kept in unreasonable numbers, do not cause an
unreasonable amount of noise or odor, or do not otherwise become a nuisance or
threat to other Lots, Owners, Occupants or wildlife' Permitted dogs, cats and
other Household Pets must be fenced, restrained and confined at all times within
the Owner's or OccuPant's Lot,
when leashed and accomPanied
and shall not be permitted outside such Lot except
by the pet's owner or the owner's representative
t7
All Household Pets shall be properly
immunized and otherwise maintained and cared for as required by applicable
laws. All such restrictions shall also apply to dogs brought to the Common
Interest Community by Owner's guests, licensees or employees.
The Owner of a Lot where a Household Pet is kept, as well as the legal owner of
the pet (if not such Owner), shall be jointly and severally liable for any and all
damage'and destruction caused by the pet, and for any clean-up of the Owner's
t ot and of streets, sidewalks, or other Lots necessitated by such pet.
The Board shall be responsible for enforcing the restrictions set forth in this
Section 3.16, and shall have, and is hereby given, the right and authority to
determine in its sole discretion that dogs, cats and other Household Pets are being
kept for commercial purposes, or afe being kept in unreasonable numbers, or are
causing an gnreasonable amount of noise or odor, or are otherwise a nuisance or
threat to other owners or occupants, or that an owner or occupant is otherwise in
violation of this Section 3.16, and to take such action or actions as it deems
reasonably necessary to remedy the violation, including, without limitation, the
levying oi fin"t and/or assessments as provided in Section 10.9 hereof' Also,
*itiro* limiting the generality of the foregoing, the Board may require the owner
or custodian of a Aog-that barks or howls excessively, or of a dog, cat or other
Household Pet with-other offensive habits or threatening behavior, to confine such
animal indoors, or to PermanentlY remove such animal from the Common Interest
Community
Section 3.17 Restrictions on Equipment. Tanks. Antennae. Satellite Dishes. Etc' Heating,
uir r-tAiti*ing (iniluding swamp coolers), air movement, wind collection, or
refrigeration.q,rip*.nt must be screened from the view of neighboring properties
and must receive the prior written approval of the Design Review Committee'
Solar power units meeting all govemmental guidelines for residential uses may be
incorporated into a residence if (a) the solar power unit meets the same design
review criteria as are applied to other Improvements within the Common Interest
Community, and (b) the solar power unit is approved in advance by the Design
Review Committee. No turk"of any kind, whether elevated or buried, shall be
erected, placed or permitted to remain upon any Lot except in compliance with
applicabie federal and state regulations, and then only with the prior written
ctrrsent of the Design Review Committee. Any approved tank must be located
18
Section 3.18
Section 3.19
underground or adequately concealed from view by fencing or screening approved
by the Design Review Committee'
If an Owner wishes to install an antenna to receive television and/or video
programming, the Owner shall notiff the Design Review Committee in writing of
it e
-ptan
reO ilstallation and the proposed location thereof at least ten ( I 0) days
before the installation. The antenna installation and location shall comply with all
fire, electrical and other applicable safety codes, and the installing Owner shall' to
the extent feasible, instalitire antenna in a location that minimizes its visibility
from neighboring Lots. The installing owner shall be obligated to paint the
antenna so that ii blends into the background against which it is mounted and to
plant and maintain such reasonable landscaping as will screen the antenna' to the
extent feasible, from neighboring Lots'
Satellite dishes that exceed one metel in diameter, and MDS antennas that exceed
one meter in diameter or diagonal measurement, shall not be allowed within the
Common Interest Community. Mast antennas that extend higher than 12 feet
above the roof line and antennas that are not used to receive television and/or
video programming shall only be permitted within the Common Interest
Community if theyleceive the prior written approval of the Design Review
Commifiee as to design, location and screening from neighboring Lots.
Drainage Restriction. No Owner shall construct, install, maintain or permit any
f*pro***ton a Lot that would result in storm water run-off draining onto
another Lot, except by way of drainage easements as shown on any Plat or
drainage structures as installed by Declarant'
No Interference with Waterwavs or Drainage or Irrigation Svstems' No
O*n., shall construct, install, maintain or permit any fence or other Improvement
or obstruction or plant trees or take any other action which damages or intemrpts
or interferes in any way with (i) the normal flow of water through and along
waterways, drainage or irrigation systems within the Common Interest
Community or wiihin the easements described in Article VII, (ii) any irrigation
ditch, lateral,lake, pond or other water collection, storage or distribution system
within or serving the Common Interest Community, or (iii) normal drainage
patterns within the Common Interest Community, subject always to the rights of
t*rr.r, of ditches and other water rights and the requirements of the Design
Review committee. The Association shall have the authority to take such action
as may be necessary to abate or enjoin any such damage or interference, and shall
have ihe right to enter upon a Lot for purposes of correcting or removing the szune,
and any "oit, irr..rrred by the Association in connection with such abatement'
injunciive or corrective activities shall be assessed to the responsible Owner in the
form of a Reimbursement Assessment'
l9
Section 3.20 Fences Prohibited or Restricted'Fences along or adjacent to the boundary or
Lot line may be prohibited on some or all of the Lots pursuant to the Design
Guidelines On any Lots where fences are permitted, the fence maY onlY be
constructed upon the prior written approval of the Design Review Committee and
in conformance with the Design Guidelines Privacy fences, security fences, and
fences for screening Purposes may also be prohibited.To the extent theY are
permitted, they shalt also be approved by the Design Review Committee and
constructed in conformance with the Design Guidelines. Declarant and/or the
Association, through the Design Review Committee,shall have the right to
designate the specific fence to be installed, if a fence is
Section 3.21 Use of Easement Areas: Utili8 Installation. All easements shown on a Plat
r"*.*g *y prrtton of tt. common Interest community have been created or
,...*"d for the purposes indicated on such Plat and/or in Article VII below' No
Owner may erect any structure of any type whatsoever in such easement areas, nor
may an Owner or Occupant use the surface of such easement areas for any private
use, other than landscuiit g which will not interfere with the use of said easement
by the Persons or entities ior whose benefit it has been created or reserved and
which receives the prior written approval of the Design Review Committee'
With respect to easements created for access, utility or drainage purposes either by
the terms of this Declaration or any other recorded agreement or on a Plat, any and
all bona fide public and private utility service companies, and special districts-
shall have the right of access, ingress, egress, and use of rygh easement areas for
the installation, operation and -ui.rt.nut.e of utility facilities serving the
Common Interest CommunitY.
Except for street lighting, no aerial utility lines or facilities of any type (except
meters, risers, ,.*i.. pedestals and other surface installations necessary to
maintain or operate appropriate underground facilities, which meters shall be
attached to the primary residence; shall be erected or installed within the Common
Interest Community, whether upon Lots, easements, streets, or rights-of-way of
any type, either by a utility company, an owner, the Association, or any other
p.rro., or entity (includin!, but not limited to, any person owning or acquiring any
purt of tfr. Common Interest Community) and all utititylines and facilities
iincluding, but not limited to, water, sewer, gas, electricity, telephone, and cable
20
tv) shall be buried underground. Provided that, during the construction of a
residence on a Lot, u r"*poruty overhead powel line may be installed which shall
bepromptlyremoveduponcompletionofconstruction.
Section 3.22 Landscaping and Irrigation Regulations. No landscaping shall be performed
o, * on plan therefor-has received the prior
written approval of the n.sign-R"riew Committee, and all landscaping and
irrigation shall compty witnlrre Design Guidelines and the Colorado State Forest
Service Wildfire HazafiLetter. e landscaping and irrigation plan for each Lot
must be approved by the Design Review committee before construction is
commenced on the residence on that Lot'
Each owner shall diligently maintain, trim, weed, cultivate, husband' protect'
preserve and otherwise teep in a healthy and attractive condition the shrubs, trees,
hedges,grass,planters,g*dt"'andother-landscapingupontheOwner'sLot'
incluJini, wiihout limitiiion, the removal of dead and diseased branches and
brush *-d th" performance of other tasks necessary to remove or eliminate
material which constitutes or creates aftehazxd or nuisance. Each owner shall
keep the Owner,s Lot free of Noxious Weeds. Each Owner shall cooperate with
theAssociationinitsbrushclearingandfireprotectionhusbandryprogramfor
reduction of fire hazardwithin the Common Interest Community' Any Owner
failing to maintain their Lot in accordance with these provisions, including but not
limited to the removal of Noxious Weeds, shall be required to remedy the
violation, at the Owner's cost and expense, within 30 days following a written
request therefor from the Association. If said Owner or Occupant fails to comply
with the request in a timely manner, the Association shall have the right to enter
upon the owner's Lot to perform the necessary work and may assess the costs
thereof against the Ownei and the Owner's Lot in the form of a Reimbursement
Assessment.
Section 3.23 Driveways and Road Surfaces. All roads, driveways and parking surfaces must
u. p*il*uintuin.d *itt, *ncrete or other hard surface material. Driveways
and parking surface must be paved, or maintained with concrete or other hard
surface material within rour (+; months after the owner of the Lot is issued a
certificate of occupan.V. gu.frbwner shall maintain all roads, driveways and
p*t irg surfaces withil the Owner's Lot in good condition and repair'
section 3.24 Basketball Goals. Basketball goals, backboards and nets shall not be allowed
,nG, tt"y rffity with the oe'sign Guidelines and the approval of the Design
Review Committee is first obtained'
Section 3.25 Swimming Pools. Spas. and Related Equipment' Pools' spas oI hot tubs may
U.ffi*rt*rtid or installed on Lots within the Common Interest
2l
community, provided they comply with the Design Guidelines and receive the
prior writter, "onr..rioitfr.
O.tign Review Committee. If a pool, spa or hot tub is
ipfro.r.a, all service equipment Inat U" fenced, adequately screened from any
,riigtUoring Lot and tht frrat location shall be approved by the Design Review
Section 3.26
Section 3.27
Section 3.28
Section 3.29
signs and Advertising. No sign, poster, billboard or advertising device of any
kind shall be allowFor displayed upon any Lot within the Common Interest
Communityexcept:(a)suchsignsas-uyb.usedbytheDeclarantorbuilders
approved by Declarantirr.o*..tion with the development, marketing and sale of
LotsintheCommonlnterestCommunity;(b)suchsl-gn.s.asmayberequiredby
legal proceedings, ,t. pr"friUition of whict is pre"luaia UV law; (c) neighborhood
monuments (e.g., entrance and directional signs) which are compatible with the
architecture of the area; (d) one security "o-p*y sign; and.(e) one "For Sale" or
',For Rent,, sign on *y'ioi All such signs must comply with the Design
Guidelines and County sign regulations'
individualwater*.@s,septictanksorotherindividualsewage
disposal systems shall be drilled, constructed, maintained or permitted to remain
within the Common Interest Community, except such water and/or septic systems
aS may be installed by Declarant or Deciarant's successor, assign or agent or the
Association to serve tht Co**on Interest Community'
Committee.
In the
event of damage to or destruction of any Improvement on any Lot, the Owner
thereof shall cause the damaged or destroYed ImProvement to be promPtlY
restored or replaced to its original condition or such other conditi on as maY be
approved in writing bY the Design Review Committee, or the Owner shall cause
the damaged or destroYed Improvement to be promPtlY demolished and the Lot to
be suitably landscaPed, subject to the apProval of the Design Review Committee,
so as to present a Pleasing and attractive aPpearance.Such Improvements shall be
repaired, restored or otherwi se demolished and suitablY landscaped within such
reasonable time frame as may be established bY the Design Review Committee.
Leases. Any Owner shall have the right to Lease his residence on a Lot or his
epU, rf applicable, under the following conditions:
(1)Allleasesshallbeinwriting,andmustcovertheentireresidence
or ADU (i.e., no leases of bedrooms alone-or otherwise covering less than all of
the Lot or ADU shall be Permitted)'
22
(2)Allleasesshallprovide(i)that^thetermsoftheleaseandthe
te.rarrt's'(ilccupant's),rse of the residence or ADU shall be subject in all respects
to the provisions of this Declaration, the Articles, the Bylaws' and the Design
Guidelines, (ii) that the Occufant has receiv-ed and reviewed copies of said
ao.**tr, and (iii) ttrat an/iailure by the occupant to comply with any of the
aforesaid documents, in arry respect, strall be a default by Occupant under the
Lease and a default by Occupant and Owner under said documents which may be
enforced against occupant *alot owner by the Association and/or Board'
(3)EachownershallnotifftheAssociationimmediatelyuponthe
leasing of his residence o,.tpu and shau provide the Association with a copy of
the lease and with the name and mailing uddr.r, of the occupant and the mailing
address (if changed) of the Owner'
(4)EachownerwholeasesaresidenceorADUshallberesponsible
fo, u,,.,,ing compliance by the occupant with_all of the provisions of this
pr"r*uiioi, the Anicler, if,. nytu*s, and the Design Guidelines,.and shall be
jointly and severally responsibft with the Occupanifor any violations thereof by
the OccuPant.
(5)EachleaseshallexpresslyprovidethattheAssociation(viathe
Board) shall have the right to give the Occupant written notice that the Occupant
isinviolationofoneormoreortn.documentslistedinsubsection(2)above,
whichnoticeshallspeciffaperiodoftime(atleast5days)inwhichtheoccupant
-uy "*" it e violation. If thl violation continues uncured' or if it is repeated
within the 3-month period iollowing the date of the first notice, the Lease shall
provide that the Owner gives to the-Association an irrevocable power of attorney
toactontheowner,sbehalftogivesuchstatutorynoticestotheoccupantandto
take such other actions as may be necessary or appropriate to terminate the Lease
and to evict the occupant from the premises' If a Lease does not contain such
provisions, the Ownei hereby inevocably appoints the Association as its attomey-
in-fact to act on its behalf as set forth herein'
(6)AlllegalfeesandcostsincurredbytheAssociationinconnection
with a Lease shall be ,t. joini and several liability of the owner and the occupant
and may be collected by l;;;iaction in which the prevailing party shall be entitled
to an award of its reasonable costs and attorney's fees'
Section 3.30 Right of Entr.v. During reasonable hours and upon reasonable notice to the
o*rr.1oft.ilpant of a Loi, any member of the Design Review committee' any
member of the Board, 6116 *y authorized representative of either of them, shall
have the right to .nt", upo,, and inspect any Lot, and the Improvements thereon,
except for the interior poni* of any occupied dwelling (which shall require the
23
Section 3.31
Section 3.32
permission of the owner or occupant, except in case of emerBency, when no
notice or permission shall be required), for ihe purpose of ascertaining whether or
not the provisions of the Declaration and of the Design Guidelines have been or
are being complied with, or for the pu{pose of exercising any rights or performing
any responsibilities (-uiri.n*r., ,.puir, etc.) pro_vided for jn this Declaration'
and such individuals shall not be deemed guilty of trespass-by reason of such
entry'ForpurposesofthisSection3.30,''emergency''shallmeancircumstances
porirg an i;;inent threat of injury or damage to persons or property'
Damage by owners During construction. Each owner is responsible for any
damagecausedto,o_,-.t',aitches,fences,trails,nutTuldrainagecourSes,
utilities, or to other Lots or Improvements thereon, during the construction or
alteration of Improvements upon the owner's Lot, including, without limitation'
damage caused uv *v."rttruction vehicles using the roads or streets within the
common Interest community. Damage shall include any degradation in the
1
appearance or condition of such roads, streets or other Lots or Improvements' The
responsible O*rr.r'riufi promptly repair and clean up any such damage, at its sole
expense. Each Owner shall alio be responsible f9t-*{ damage caused by utility
cutsinroads,washoutsandrunoffdarnagecausedbr$l.uretoproperlyinstall
culverts, and shall promptly repair any sJch damage. If the Owner fails to repair
any such damage *itt iottn (fb) aa,s following receipt of a written notice from
the Board requesting the same, itre goard shall have the right to perform such
,.pui.. on beiralf oithe Owner, and to levy a Reimbursement Assessment upon
th. O*r", and its Lot to recover the costs thereof'
Except
as expressly permitted in this Declaration (i) no Lot shall ever be further
subdivided or replatted by an Owner into smaller lots or Parcel s, (ii) no Portion
less than all of anY such Lot, nor any easement or divided interest therein, shall be
conveyed, transferred or encumbered bY the Owner , and (iii) no Lot maY be
combined with anY other Lot nor the boundary lines adjusted between anY two
Lots.
(1)DeclarantreservestherighttosubdividgaL.otortocombinetwo
Lots orvned by Declarant, or to adjust oi rrtnor. boundary lines between Lots
owned by Declarant, provided any necessary county approvals are obtained, all
Declaration and Plai imendments required 6y the CCIOA and/or local land use
laws are prepared, executed and recoided. Itio change in Allocated Interests shall
occur. In other words, if two Lots are combined, the resulting Lot shall continue
to constitute two (2) Lots for assessment and voting purposes' All costs relating
to the foregoing act'ivities shall be the sole responsibility and obligation of
Declarant. Dectarantls rights under this subsection (1) shall terminate upon the
first to occur of (i) the dati which is thirty (30) years after the recording of this
24
Section 3.33
Section 3.34
Declaration, or (ii) Declarant's relinquishing of these rights by a recorded
instrument.
(2) The boundaries between adjoining Lots may also be adjusted or
removed (i.e., thelots combined) by the dwner(s) thereof other than Declarant if
(i) the written consent of the Board is first obtained, in the sole discretion of the
iloura, (ii) all applicable regulations and codes are complied with and all
necessary County upproral*e obtained, (iii) the proposed adjustment or removal
does not violate the'ierms of any document evidencing a security interest in the
subject Lots, and (iv) all Declaration and Plat amendments required by the
--
ccloA and/or local land use laws are prepared, executed and recorded. All costs
relating to such activity (including the attorneys' fees and costs incurred by the
Board in reviewing and acting upin the matter) shall be the sole responsibility and
obligation of the Owner(s) applying for the same'
(3)NoownerofaLotshallgrantorconveyanyeasementrights
affecting any portion of the Lot without the prior written consent of the Board'
(4) No further covenants, conditions, restrictions or easements shall be
recorded by any Owner (except Declarant in the exercise of its reserved rights) or
other Persons against *y fof*itt out the provisions thereof having been first
approved in wriling by tire Board for consistency with the Declaration and the
g.nrrrt plan of development for the Common Interest Community' Any
covenants, conditions, restrictions or easements recorded without such approvals
being evidenced thereon shall be null and void. This provision does not apply to
Mortgages.
(5) No application for rezoning of any L9t' ld.no application for any
variance or special ,r. p.ttnit for any Lot, shall be fi|ed with any govemmental
authority by any Owner (except Deciarant in the exercise of any reserved rights)
unless the proposed use of the Lot has first been approved in writing by the Board
and the proposed use otherwise complies with the Declaration.
House Size Regulations. Single-family residences in the- Common Interest
@ecttJthesizelimitationsassetforthinthePinyonMesa
P.U.D. Plan and Design Guidelines'
Health. Safety and Welfare. In the event any uses, activities, and facilities
within the Common Interest Community are deemed by the Board to be an
unreasonable annoyance or nuisance, or to adversely affect the health' safety or
welfare of owners or occupants, the Board may amend this Declaration in order
to appropriately restrict and regulate such uses, activities or facilities within the
Common Interest CommunitY.
25
Section 3.35 ' The Boarj may' in its sole discretion and in
extenuating circumstanrfrffii,rariances rrom a=y of the:.t_,i1:tiont set forth in
this Articte III (excepti";';t such restrictions with respect to which the Design
Review Committee has t[e a-uthority to grant variances under Section 4'15
below), if the Board determines, in iis discretion, (a) either (i) that a particular
restriction creates a substantial hardship or burden on an Owner or Occupant'
whichhardshiporburdenwasnotcausedbysaidowneroroccupant'or(ii)\ata
changeofcircumstancessincetherecordationofthisDeclarationhasrendered
suchrestrictionobsole.",*a(u)thattheactivitypermittedunde^rthevariance,in
the judgment of the Board, wiil not have any material adverse effect on the
owners and occupants ofihe common Interest community (including
neighboring Lots) and is consistent with the high quality of living intended to be
promoted hereby throughout the Common Inteiest Community' When an Owner
uppti., for a varian.., ih. Board must give at least ten (10) days advance written
notice of the variance hearing, and of the nature of the variance requested, postage
prepaid, by certified mail, reiurn receipt requested, to all owners of Lots, at the
current addresses fo, ,.r.h O*rrers refiected in the Association files' If the
ror"goirrg notice ,equirern.nts are complied with, it is not necessary that the
Owners actually receive the notice thaiis mailed to them' such notices being
deemed received uPon mailing'
NovarianceshallconflictwiththePinyonMesaP.U'D.orwithordinancesor
regulations of the Corrnty tiu rariunt. O9* the County laws or regulations is
also required in connection with a matter for which a variance is desired
hereunder, it shall b. th. o;er's responsibility to obtain such county variance
beforesubmittingavarianceapplicationtotheBoard
Section 3.36 Decrarant Activities. Nothing contained in this Declaration is intended or shall
be construed to prevenl ..grt;t" or delay or to restrict in any way Declarant's
right and abitity to develop, improve, maintain, repair, regulate' operate'
administer, manage, marrli, ,.i1, l.ur., encumber or dispose of the common
Interest Community, ,fr. ioo, or any part thereof, including the right to construct
Improvements, place constructio, oi offi"t trailers, and install signs thereon' all in
the complete discretion of Declarant'
section 3.37 Countv Approvars. In addition to the general restrictions set forth in this
Article, and subject t" i.grffy established vested rights' the use and occupancy of
.u.h Lo, shall bi subjectio tire requirements set forth in the ordinances'
Resolutions, Plats o, Agr""-ents adopted and approved by the county relating to
pinyon Mesa, and in pfri.ula, the Pinyon trrtesa p.u.p' Plan, and all approved
modifications thereto, as well as the general zoning and subdivision regulations of
the County that are applicable to Pinyon Mesa'
26
Section 3.3g Adiacent Lands. parts of the Common Interest Community are adjacent to lands
o*r.l=-u-nd o-p.*ted by the Bureau of Land Management ("BLM")' The BLM
allows hunting activities on these adjacent lands, @
t*U" J.i!-*"nrG*]u"d the Commgn InJe5slffiT"lrymav not restrict sueh
t rrnti '
Section 3.39 Wildfire Hazard'All Lots in the Common Interest CommunitY are exPosed to
wildfire risks, as identified in the Colorado State Forest Service Wildfire Hazatd
, all owners of Lots are reqeirsdpEEgt{d to undertake@
any and all wildfire hazatd
mitigation measures to in said Letter.
Witdlife.A Wildlife Assessment RePort was for the Common Interest
Section 3.40
^4,?i4
^22 u/ -5"
'/;-€r((-%r
Community
O*ners of Lots shall be
27
familiar wi th the results
Section 3.41
of this Report, and shall undertake any and all requirements and restrictions of this
Report during development and use of the Lot'
BLM Lands. Any use or occupancy of the public BLM lands adjacent to the
Co**on Interest Community shall comply with the comments and
recommendations of the Bureau of Land Management Letter, including the
foltowing specifi c recommendations :
(l) Wildfire. Protecting homes from wildfires is a concem in the
wildland-urban interface areas. Modiffing design plans or reducing fuels to create
a defensible space on private property is recommended. Future fuel reduction
actions o, prblit landi should not be considered as the preferred remedy for
mitigation of wildfire concerns.
(2) Trespass. The applicant should be mindful of the location of BLM
property boundaries to ensure no enroachment occurs on public lands' Improved
i.rrirg is recommended to identify the boundary and control access and trespass.
(3) Recreation/Travel. The adjacent public lands offer a variety of
dispersed-recreational activities (motorized and non-motorized). Motorized and
non-motorized travel is managed in accordance with the Glenwood Springs Field
Office - Resource Management ptan. This broad range of activities will likely
continue to occur contiguous to the private lands. Additional information on
recreation, travel and access can be found at the Office of the BLM'
(4) Hunting and Target Shooting. The adjacent BLM lands are open to
hunting and target shooting. The BLM does not establish safety zones or no-
shooting zones to restrict hunting.
(5) Right-of-ways. Any roads, cart trails, paths, or utilities such as
water, eiectric, phone or otherwise crossing BLM would require right-of-way
(ROW) permits from this office. An environmental assessment of the impacts of
thor. urlr would be needed as a part of the ROW permitting process'
(6) Mineral Rights. The Bureau has not researched the mineral rights
to determine if they *. ,"r.*.d to the federal government on the subject lands'
ARTICLE IV
DESIGN REVIEW COMMITTEE
Establishment of Design Review Committee. The Association shall have a
l"rign R*i"w Committee, which shall consist of a minimum of three (3)
*"-i.rr, each of whom shall either be (i) a representative of the Declarant, or (ii)
Section 4.1
28
Section 4.2
an Owner or Occupant of a Lot in the Common Interest Community. All
members of the Design Review Committee shall be appointed and removed from
time to time by the Board in its discretion, and shall serve for such term as may be
established by the Board from time to time. A member may be removed by the
Board at arry time upon written notice, without cause. Subject to the three (3)
member minimum, and to the membership criteria set forth above, the Board may
increase or decrease the size of the Design Review Committee from time to time
in its discretion. On behalf of the Association, the Board may hire a local
architect to consult with and advise the Design Review Committee, which
architect shall be paid by the Association as a Common Expense. The Board may
also hire or appoint a secretary for the Design Review Committee, and shall
provide appropriate compensation for any such secretarial services.
Meetings and Action of Committee. The Design Review Committee shall meet
from time to time as necessary to perform its duties hereunder. The Design
Review Committee may from time to time, by resolution in writing adopted by a
majority of the members, designate a Committee representative (who may but
need not be one of its members) to take any action or perform any duties for or on
behalf of the Design Review Committee, except the granting of approval for any
Improvements and the granting of variances. The action of such Committee
representative within the authority of such Committee representative shall
constitute the action of the Design Review Committee. A majority of the
members of the Design Review Committee shall constitute a quorum of the
Committee. Actions of the Committee may be taken (without a meeting) by the
written consent of a majority of the members thereof, or at a meeting at which a
quorum is present in person or by proxy, by the vote of a majority of such
members constituting the quorum, but in no event less than two (2) members'
Section 4.3 Records of Actions. The Design Review Committee shall keep a permanent
record of all actions of the Design Review Committee'
Section 4.4 Design Guidelines. The Declarant has established an initial set of rules,
procedures, standards, guidelines and requirements, including, without limitation,
architectural, design and development standards and guidelines which shall
govern the review and approval or disapproval of any proposed reconstruction,
remodeling, renovation or alteration of Improvements within the Common Interest
Community, and other matters provided for therein (the "Design Guidelines")'
The Design Review Committee may make such amendments and additions to the
Design Guidelines as the Committee deems necessary or appropriate from time to
time to accomplish the purposes of (and as are not in conflict with) this
Declaration and to ensure the orderly and attractive development of the Common
Interest Community, provided such amendments or additions are consistent with
any and all conditions of development approval imposed by the County' Upon its
29
Section 4.5
Section 4.6
Section 4.7
adoption, each such amendment shall be provided to the Board' The Design
Guidelines (as they *"V U. amended from time to time) are hereby incorporated
herein and shall be deemed to be a paft of this Declaration and shall be binding on
the common Interest community, and on all owners, occupants, Members or
other Persons as if expressly set iorth herein. A copy of the current Design
Guidelines shall, at all times, be a part of the Association's recotds' The Design
Review Committee, in its sole discretion, shall have the right and authority to
determine the existence of any violation of the Design Guidelines or of any
upfrouut, granted or other decisions made by, or other requirements of, the
d.rig, Reiriew Committee, which determinations shall be binding on the Owners'
Design Review Fee. The Design Review committee shall adopt, and may from
time to time amend, a design rii.* fee schedule which shall apply to requests for
approval of construction, rimodel, renovation or other alterations of or to
Improvements (collectivlly referred to herein as "Work"), except that no fee shall
be charged for any p.pot"a alteration or addition to an approved landscaping
plan. The design revie* fee schedule shall be set forth in the Design Guidelines'
The applicable fee must accompany each request for approval of any proposed
work. The Design Review Committee shall not take any action on a request for
approvaluntilallrequiredfeesarepaidinconnectiontherewith.
Design Review and construction Process. Every owner proposing any work on
its Lot must compfy *-m tt. a"Gn review and construction procedures that are
set forth in the Design Guidelines'
Prior to commencement of work, the Owner propo sing same shall submit to the
Design Review Committee such descriptions, surveys'plot plans, excavation
plans,drainage plans, grading Plans,site plans, roof Plan,elevation drawings,
construction Plans,landscaping Plans,ini gation plans, fencing and wall plans,
specifications,and samples of material s and colors as the Design Review
Commiuee shall reasonably request showing among other things the nature, kind,
shape,bulk, massing, articulation, height,width, dimensions,color, materials, and
location of the ImProvements to be constructed,remodeled, renovated or altered'
All submissions shall conform to and be in accordance with the Design
Guidelines. The Owner shall be entitled to receive a receipt for the same from the
Design Review Committee or its authorized agent. The Design Review
Committee may require submission of additional plans, specifications, or other
information Prior to aPProvmg or disapproving the proposed work' Until receiPt
the Design Review Committee of all required information and materials inby
connection with the ProPosed
review of the aPPlication'
work,
30
the Design Review Committee may postpone
Section 4.8
From and after the date on which the Design Review Committee receives all
required information and materials in connection with the proposed work, the
Oesign Review Committee shall have thirty (30) calendar days in which to
-
upprIr., approve with conditions, or deny the application. An approval shall be
evidenced by a,,Certificate of Approval" as provided in Section 4.8 below. In the
discretion of the Committee, one or more meetings may be held with the Owner
during that period. If the Design Review Committee fails to approve or deny the
appHJation within said 30-day period, the final plans and specifications submitted
toine Committee by the Owner shall be deemed approved'
Criteria for Approval or DisapDroval: Certificate of Approval' The Design
Review Committee thull upptove any proposed work, and shall issue a Certificate
of Approval therefor (which grants approval to an identified set of plans, subject to
any conAitions to appioval), only if it determines in its reasonable discretion that
the pinyon Mesa pIJ.D. Plan and the Design Guidelines have been complied with;
that the proposed work is in compliance with all applicable provisions of this
Declaration; that the proposed work will not be detrimental to the value or
enjoyment of the styrounding areas in the Common Interest Community; that the
ritini, design, bulk, height, appearance and overall aesthetic impact of the
prop-osed work will be in harmony with the surrounding areas in the Common
interest Community; that the proposed work will enhance the quality,
wholesomeness, and attractivineis of the Common Interest Community and the
enjoyment thereof by Owners; that the upkeep and maintenance of the proposed
work will not become a burden on the Association; and that in the case of
construction or renovation of a residential dwelling, the work will be performed by
a competent builder. The Design Review Committee may condition its approval of
*y p*pored Improvements upon the making of such changes therein as the,
O.rign R.riew Committee may deem reasonably appropriate, and may require that
archiiectural embellishments (or details) and/or additional landscaping be
performed on the subject Lot. In all cases, the Design Review Committee must
issue a Certificate of Approval before an Owner applies to the County for a
Building Permit for the proposed work.
The approval by the Committee of any work shall in no event imply or require that
,r"h approval will be granted again in the future for the same or a similar work'
and ttre Committee shill have complete discretion, consistent with the standards
and criteria contained herein and in the Design Guidelines, to grant or deny such
approval in each instance on the merits of the particular application or proposal and
considering the circumstances surrounding the same'
31
Section 4.9 Decisions of Committee. Decisions of the Design Review Committee shall be
made in accordance with the procedures established in the Design Guidelines and
shall be binding on all Parties'
Section 4.10 Completion of Work After Approval. Following the approvaf-of any proposed
*ort , the proposed work shall be completed by
the Owner: (a) as promptly and diligently as possible but in no event in excess of
the time p.riiO, ,.i fo.ti, below; (b) in compliance with the Design Guidelines and
with all applicable laws, regulationi and codes; (c) in strict conformance with all
pt*. und specifications ani other materials furnished to and approved by the
Design Review Committee and with the Certificate of Approval; and (d) in
u."oid*r. with any and all conditions imposed by the Design Review Committee'
All work approvedty the Design Review Committee shall be completed, a
.,Certificate of Compliance" shall be obtained in accordance with Section 4'13
below, and all constiuction equipment, materials and debris shall be removed: (i)
within lg months from the Aate of approval by the Design Review Committee, or
(ii) within such other time period ur-ti,. Design Review Committee may prescribe'
Failure to comply with theierms and conditions of this Section 4.10 shall
constitute non-compliance with the terms and provisions of this Declaration and
the Design Review Committee and/or the Board shall have the right to invoke all
rights and remedies provided to them hereunder, including, but not limited to, the
right to seek injunctive relief and/or to impose fines and penalties'
Section 4.11 Risht to Inspect. Any member or authorized consultant of the Design Review
Committee or of the Board, or any authorized officer, employee or agent of the
Association, ffi&y @ut shall not be obligated to) at any reasonable time enter upon
any Lot, without being deemed guilty oltr.rputt, in order to inspect the work, to
ascertain whether such work has been or is being built in compliance with the
Design Guidelines, the approvals granted by the Design Review Committee' and
this Declaration.
Section 4.12 Notice of completion: Inspection of work: correction of Defects'
(1) Upon the completion of any work for which plans and specifications
have been approved by the Design Review Committee, the Owner shall submit to
the Committee a written'NoticJof Completion," on a form to be provided by the
Committee, which Notice shall certiff that the work has been completed in
accordance with all plans, specif,rcations and other materials furnished to and
approved by the Committee, the Certificate of Approval, any conditions imposed
by the Committee, and with the Design Guidelines. Until receipt of such Notice,
the Committee shall not be deemed to have any notice regarding completion of the
work'
32
Section 4.13
(2) Within twenty-one (21) days following receipt of the Notice of
Completion, the Design Review Committee or its duly authorized representative
shall inspect the work. If the Committee finds that the work has not been
completed as set forth in the Notice of Completion, it shall notiff the Owner in
writing of such non-compliance within said twenty-one (21) day period, speciffing
the particulars of non-compliance, and shall require the Owner to remedy the same'
If for any reason other than the Owner's act or neglect, the Committee fails to
notiff th. O*rr", of any non-compliance or to issue to the Owner a Certificate of
Compliance pursuant to Section 4.13 below prior to the expiration of said twenty-
one 1^Zt) day period, the work shalt be deemed in compliance if the work was, in
fact, complltia ur of the date of the Notice of Completion and the Owner may
proceed to request a certificate of occupancy if required from the County'
(3) If upon the expiration of thirty (30) days from the date of such
notification of non-compliance the Owner shall have failed to remedy such non-
compliance, the Design Review Committee shall notiff the Board in writing of
such failure. Thereupon, the Board (and its duly authorized representatives), aJ the
Board,s option, may enter upon the Lot at any reasonable time after notice to the
Owner, without being deemed guilty of trespass, and remove the non-complying
work or otherwise rernedy the non-compliance, and the Owner shall reimburse the
Association, upon demand, for all expenses, including interest on monies expended
and attorneys' fees, incurred in connection therewith. If such expenses are not
repaid by the Owner to the Association within thirty (30) days following delivery
of a written demand therefor to the Owner, the Board may levy a Reimbursement
Assessment against such Owner and the Owner's Lot for all such costs and
expenses. The right of the Association to remedy or remove any non-compliance
stratt Ue in addition to all other rights and remedies which the Association may
have at law, in equity, or under this Declaration, and the Owner shall have no claim
for damaget ot oih.t*ise on account of the entry upon the property and remedying
or removal of the non-complying work'
Certilicate of Compliance. When the Design Review Committee is satisfied that
the work has been -ompleted in accordance with all plans, specifications and other
materials fumished to fhe Design Review Committee, the Certificate of Approval,
any conditions imposed by the-Committee, and with the Design Guidelines, it shall
issue to the Owner a Certificate of Compliance with respect to said work. Upon
receipt of such Certificate, but not before, the Owner may apply to the County for a
certificate of occupancy if required. No constructed residence on a Lot shall be
occupied until a Clrtificate oi Compliance has been issued therefor by the Design
Review Committee and a certificate of occupancy has been issued therefor by the
County.
JJ
Section 4.14
Section 4.15
Improvements Must Conform to Approvals. No building, fence, wall, structure'
l*dr*pt"g - "th".i-prorr.ment
of whatever type shall be constructed or
removed *ithi, the common Interest community, nor shall there be any additions
or changes to the exterior of any residence or other structure or Improvement upon
a Lot oithe landscaping, grading or drainage thereof, including, without limitation,
the painting or staining iott.t than painting or staining *i1l the same color and
type of paiit or stain a-s previously existed) of exterior walls, patio covers and
ft"r".r, lxcept in accordance with plans and specifications therefor which have
been submitted to and approved by the Design Review Committee and in
compliance with the Design Guidelines.
Committee Power to Grant Variances. The Design Review Committee may
gr*t "-r*.* ft"- any of the restrictions set forth in this Declaration or the
besign Guidelines pertaining to proposed Improvements and the criteria therefor,
incluiing restrictions upon height, size,floor area, setbacks, location or placement
of structures, or similarrestrictions, when (i) unique circumstances not created by
the Owner, such as topography, natural obstructions, or aesthetic or environmental
considerations, would oth.r*i.. result in substantial hardship or burden which is
not suffered by other similarly-situated Lots, or (ii) when a change of
circumstances since the recording of this Declaration has rendered such restriction
obsolete, and (iii) in either case, when the Design Review Committee determines
that the activity allowed by the variance will not have any material adverse effect
on the Owners and Occupants of the Common Interest Community (including
neighboring Lots) and is consistent with the high quality of living intended to be
proiroted hireby throughout the Common Interest Community' When an Owner
applies for a varian.., th. Committee must give at least ten (10) days written
,oti." of the variance hearing, and of the nature of the variance requested, postage
prepaid, by certified mail, retum receipt requested, to all Owners of Lots, at the
current addresses for such Owners reflected in the Association files' If the
foregoing notice requirements ale complied with, it is not necessary that the
Owiers actually r...ir. the notice that is mailed to them, such notices being
deemed received uPon mailing.
All variances that are granted by the Design Review Committee must be evidenced
in writing, must speciff the Lot for which the variance is granted and the unique
circumstances or change in circumstances justiffing the variance, and must be
signed by at least a majority of the members of the Committee. If any such
,iiance-is granted, noviolation of the covenants, conditions and restrictions
contained in this Declaration or the Design Guidelines shall be deemed to have
occurred with respect to the matter for which the variance was granted' The
granting of such a variance shall not operate to waive any of the terms and
provisions of this Declaration or the Design Guidelines for any purpose except as
io the particular property and particular provision hereof covered by the variance'
34
Section 4.16
A copy of each variance request and approval, or denial, will be kept on file at the
Association offices.
The granting of a variance in a particular instance shall in no event imply or require
that such a variance will be granted again in the future in a similar situation' and
the Committee shall have colplete discretion, consistent with the standards and
criteria contained herein and in the Design Guidelines, to grant or deny a variance
in each instance on the merits of the particular application and considering the
circumstances sl[rounding the same'
No variance shall conflict with the Pinyon Mesa P.U.D' Plan or with ordinances or
regulations of the County. If a variance from the County laws or regulations is also
re[uired in connection with a matter for which a variance is desired hereunder, it
shall be the Owner's responsibility to obtain such County variance before
submitting a variance application to the Design Review committee'
Nonliability for Approval or Disapproval of Plans and specifications' for
-
iGoce of C"rtifiIlte. of App"ovol or Compliarrce. or fo" Registtatio. of
B"tld.^Jh. *tt.ffi.tignEeview Committee approval of plans and
specifications are set forth in Section 4.8 above. The Design Review committee
sirall not be responsible for reviewing plans and specifications with respect to
engineering design or for compliance with zoning, building ordinances,
environmental laws, or any other applicable lawsor regulations' By its approval of
*y srct plans and specificationt, unO by its issuance of a Certificate of Approval'
neither the Design Review committee, the members thereof, the Association, any
Member, the Board nor the Declarant assumes or shall have any liability or
,.rporrifitity with respect to engineering design or for compliance with zoning,
buiiding ordinances, environmental laws, or any other applicable laws or
regulati-ons, or for any defect in any Improvement constructed from such plans and
sp-ecifications. Neither the DesignReview Committee, any member thereof' the
Association, any Member, the Board nor the Declarant shall be liable to any
owner, occupant or other Person for any injury, damage, loss or prejudice suffered
or claimed on account of (a) the approval or disapproval of any plans, drawings or
specifications, whether or'not defiitive, and/or the issuance of a Certificate of
Approval,(b)theconstructionorperformanceofanywork,whetherornot
pursuant to approved plans, drawings and specifications, (c) the issuance of a
Certificate of Compiiance, or (d) the development, or manner of development of
any property within the common Interest community. The approval of plans and
,p.rin*tiorrs by the Design Review Committee (including the issuance of a-
Certificate of Approval), ird/or the issuance of a Certificate of Compliance by the
Design Review Corn*itt.., shall not under any circumstances constitute or be
aeerned to be a representation or warranty that the plans, specifications or
completed Improvements comply with applicable laws, resolutions' ordinances or
35
Section 4.17
Section 4.18
Section 5.1
Section 5.2
regulations, including, but not limited to, zoning ordinances and building codes
and environmental laws.
Enforcement. The requirements and provisions of this Article IV and/or of the
D6tg,, G"td.tines shail be enforceable in accordance with the rights and
procedures set forth in Section 12.4 of this Declaration'
Coordination with Building Permit Process. A copy of each Certificate of
Appr"*t, ir.trding conditions, shall be provided to the County building
Oepartment by the O*r,tt in conjunction with the Owner's application for a
building permit from the CountY.
Prior to the issuance of a building permit, the Owner of each Lot shall prepare and
submit a soils and foundation report, a grading and drainage plan, and a
geologically acceptable building site prepared and cenified by a professional
e.rgi.reet. All Improvements shall be constructed in accordance with such
en[ineering recommendations, which shall be a condition of Design Review
Committee approval and the building permit.
ARTICLE V
ASSOCIATION PROPERTY
Use and Enjoyment of Association Propertv. Except as otherwise provided in
tt is pectaruiior, each Owner shall have the non-exclusive right to use and enjoy
Association Property in common with all other Owners. This right to use and
enjoy Association Pioperty shall extend to each Owner, Occupant, and the family
members, guests and invitees of each Owner, and to such other users aS may be
authorized by this Declaration or by the Board from time to time, and shall be
appurtenant io each Lot, subject at all times to the provisions of this Declaration
linctuaing Declarant's reserved rights hereunder), any applicable supplemental
Declaration, the Articles and Bylaws. No Owner or Occupant shall place any
structure or store or leave any materials oI personal property upon Association
Property, nor shall any Owner or Occupant engage in any activity which will
temporarily or perrnanently impair free and unobstructed access to all parts of the
Association Property by all Owners'
Association May Regulate Use of Association Property. The Association,
".ttrg thr""gh th. Bo*d, shall have the right and authority to regulate the use of
Association Property by the promulgation, enforcement and interpretation from
time to time of such ruies and regulations relating thereto as the Association
considers necessary or appropriate for the protection and preservation of
Association Property analne-enfrancement of the use and enjoyment thereof by
Owners and Occupants and other authorized users'
36
Section 5.3
Section 5.4
Section 5.5
The Association, acting through the Board, may for good cause suspend the right
of any person to use ard enjoy Association Property, including the right of a-
tvtemiir who or which is delinquent in the payment of any Assessments, and the
right of any Member or other authorized user who is in violation of the terms and
pivisions'of this Declaration or any Supplemental Declaration, the Articles,
'Byla*s, Design Guidelines or the terms and provisions of any approvals granted by
the Design Review Committee.
Association to Maintain and Improve Association Property. The Association,
rtr "g*tr *d "-pfoy.tt, tt uft -uirtuin and repair, snowplow as necessary, and
otheiwise **ugi the Association Property, including, but not limited to, any
Improvements, Iandscaping, paths, trails, parking areas, drives, and recreational
ani other facilities located thereon. The Association may construct, alter and
remove such Improvements and landscaping upon Association Property as the
Association in iis discretion considers necessary, desirable or appropriate from
time to time, and may do all such other and further acts which the Board deems
necessary or appropriate to preserve, protect and enhance the Association Property
and the U.u"ry iheieof in accordance with the general objectives for the Common
Interest Community reflected in this Declaration'
No Partition of Association Property. No Owner or other Person shall have any
"ght
t" p"ttttton ot to t..t tt. puttition of Association Property or any part thereof'
owner Liabilitv for owner or occupant Damage to Association Property'
pr.t o*".r shall ui tiaute to the Association for any damage to Association
Property or for any expense, loss or liability suffered or incurred by the Association
in connection with Asiociation Property arising from (a) the negligence or willful
misconduct of such Owner or of any Occupant, agent, employee, family member,
guest or invitee of such owner, or (b) any violation by such owner or any
6ccupant, agent, employee, family member, guest or invitee of such Owner of any
law, regulation, o, coae, inctuding without limitation any environmental law, or of
*y-pri,irions of this Declaration relating to Association Property' Each Owner
sfrati inae*nifu, defend and hold the Association harmless from any loss, damage'
expense or tiabitity arising from the circumstances described in subsections (a) or
1bjimmediately aLove. T1e Association shall have the power to levy and collect a
ieimbursement Assessment against a Owner to recover the costs, expenses,
damages, losses or liabilities incurred by the Association as a consequence of any
such negligence, willful misconduct or violations'
Damage or Destruction to Association Propertv. In the event of damage to or
A.tt*.1ion of Association Property, including Improvements thereon, by fire or
other casualty, the Association shall repair or replace the same in accordance with
Section 5.6
37
Section 5.7
Section 5.8
Section 5.9
the provisions of Section 9.17 below. Repair, reconstruction, or replacement of
Asstciation Property shall be accomplished under such contracting and bidding
procedures as the Association shall determine are appropriate' If insurance
proceeds available to the Association on account of damage or destruction exceed
the cost of repair, reconstruction, and replacement, the Association may use the
same for future maintenance, repair, improvement, and operation of Association
property or for any other use deemed appropriate by the Board.
Condemnation of Association Propertv. If any Association Property or part
tt *oio, interest therein is taken under exercise of the powff of eminent domain
or by purchase in lieu thereof, the portion of any award in condemnation or the
pricl iayable for the deed in lieu that is attributable to the Association Property
iut ", oip*chased shall be paid to the Association. The Association shall have the
exclusive right to participate in such condemnation proceedings and to represent
the interestJof all Owneis and Occupants and other Persons therein' Any award or
funds received by the Association shall be held by the Association for the purposes
stated in Section 5.6 above or as a reserve for future maintenance, repair,
reconstruction, or replacement of Association Property or may be used for
Improvements or additions to or operation of Association Property or for such
other uses as may be deemed appropriate by the Board. Except as may otherwise
be provided by the CCIOA, no Owner or other Person shall be entitled to
participate as a party or otherwise in any condemnation proceedings nor to receive
any proceeds therefrom.
Title to Association Propertv Upon Dissolution of Association. In the event of
dissolution of the Association, the Association Property shall, to the extent
permitted by law and reasonably possible, be conveyed or transferred to an
appropriate public, govemmental or quasi-governmental agency or organization or
to a norptofit corpoiation, association, trust, or other organization, to be used, in
*y r.r.h event, for the common benefit of Owners for the purposes for which the
Association Property was held by the Association. If the foregoing is not possible,
the Association Property, shall be sold or disposed of and the proceeds from the
sale or disposition shall be distributed to Owners in proportion to each Owner's
Allocated Interest in the common Expenses of the Association'
Mechanic's Liens on Association Propertv. Declarant shall be responsible for
the release of mechanics' liens filed with respect to Association Property, or any
part thereof, if such liens arise from labor performed or materials furnished at the
instance of Declarant, its agents, contractors or subcontractors' Likewise, the
Association shall be responsible for the release of mechanics' liens filed with
respect to Association Property, or any part thereof, if such liens arise from labor
performed or materials furnished at the instance of the Association, its directors,
off."rr, agents, contractors or subcontractors. No labor performed or materials
38
fumished with respect to a Lot at the instance of the Owner shall be the basis for
filing a lien against Association Property. No labor performed or materials
furnished with respect to Association Property at the instance of the Board shall be
the basis for filing a lien against any Lot.
ARTICLE VI
DECLARANT'S RESERVED RIGHTS
Declarant hereby expressly reseryes to itself and its successors and assigns the following
described rights, which include development rights and special Declarant rights, any one or more
of which rights may be exercised, in the sole and absolute discretion of Declarant, at any time and
from time to time during the period commencing upon the recording of this Declaration in
Garfield County and ending on the date of termination of such rights established under Section
6.ll below. It is expressly understood that Declarant shall not be obligated to exercise any of
these reserved rights, and that no consent shall be required from any Owner, Mortgagee, or the
Association for the effective exercise of any of these reserved rights'
The reserved rights hereinafter set forth shall be prior and superior to any other provisions
of this Declaration, *d -uy not be amended, modified, terminated or otherwise altered in any
way without the express prior wriuen consent of Declarant. All conveyances of Lots and other
portions of the Common Interest Community hereafter made, whether by Declarant or otherwise,
,t utt U. deemed and construed to reserve to Declarant and/or to grant to Declarant all of the rights
reserved by and to Declarant in this Article VI and elsewhere in this Declaration, even though no
specific reference to such rights appears in the conveyancing instruments. Nothing in this Article
VI shall limit or impair any ottrer rights granted or reserved to Declarant by other provisions of
this Declaration.
The following rights are hereby reserved to Declarant and its successors and assigns:
Section 6.1 Construction of Improvements. The right throughout the Common Interest
Community to complete Improvements indicated on the Plat filed with this
Declaration, as such MaPs and Declarations may be amended from time to time'
Furthermore, the right to construct and complete Improvements required by the
terms of the Subdivision Improvements Agreement Recorded
-, at Reception No.-, in the office of the Clerk and Recorder of Garfield
County, Colorado , and any supplements thereto. Furthermore, the right to create,
grant and/or use and enjoY additional non-exclusive easements, and to relocate
existing platted Lots or other easements, upon or across any portion of the
Common Interest CommunitY,as may be reasonably required for the construction
by Declarant of the above-described Improvements or the effective exercise by
Declarant of any of the other reserved
200_
39
rights described in this Article VI.
Section 6.2 Sales. Marketing and Management. The right to construct, locate or operate,
and to maintain upon, and to remove from, any part of the Common Interest
Community including Lots owned by Declarant, in the discretion of Declarant, and
in such number, size and location as may be reasonably required by Declarant in
connection with the completion of Improvements, the management of the
development, and/or the promotion, marketing, sale or rental of Lots, the
following:
(1) Sales offrces, management offices, and/or construction offices, and
structures containing or relating to the sEIIne, including, without limitation, mobile
homes, office trailers and construction trailers. Such offices, to the extent they are
not situated on a Lot, are hereby declared to be personal property of the Declarant
and shall in any case be removable by Declarant or its successors or assigns
promptly upon the Declarant or its successors or assigns ceasing to be a Lot;
(2) Signs identiffing and advertising the Common Interest Community
and the Lots therein, or relating to development or construction thereon;
(3) Model residences constructed or to be constructed on Lots;
(4) Parking areas and facilities, and lighting, necessary or desirable in
the marketing of the Common Interest Community and the Lots;
(5) Employees in offices; equipment; vehicles; and marketing and
construction materials;
together with the right to attract, invite or bring prospective purchasers of Lots into the Common
Interest Community at all times.
Section 6.3 Declarant Control of Association. The right to appoint or remove any Board
member or officer of the Association, as more specifically set forth in Section 8.5
below, but only for and during the "Period of Declarant Control of Association" as
defined in said Section 8.5.
Section 6.4 Annexation of Additional Unspecified Real Estate. The right to annex
unspecified real estate to the Common Interest Community to the fullest extent
permitted by the CCIOA.
Section 6.5 Withdrawal Rights and Procedure. The right at any time and from time to time
to withdraw from the Common Interest Community (and any annexations thereto)
any Declarant-owned Lot or Lots and/or Association Property.
40
Withdrawal may only be accomplished by the recording by Declarant of an
amendment to this Declaration and an amendment to the Plat affected by the
withdrawal. Upon the recording of such amendments, the withdrawn Lots and/or
Association Property shall no longer be part of the Common Interest Community
or subject to this Declaration in any way.
Each Declarant-owned Lot and each Declarant-owned Association Property are
hereby described and declared to be a separate portion ofreal estate that is subject
to this right of withdrawal, and Declarant expressly reserves the right to withdraw
one or more Declarant-owned Lots and/or all or a portion of any Declarant
controlled Association Property from the Common Interest Community. Once a
Lot has been conveyed to an Owner other than Declarant, that portion of the real
estate is no longer subject to this right of withdrawal.
Section 6.6
The withdrawn property shall be subject to whatever easements, if any, may be
reasonably necessary for access or utility service to, or operation or management or
use or enjoyment of, the Common Interest Community or any part thereof. At the
time any withdrawal of real estate is accomplished, Declarant shall record
whatever documents are necessary to establish such reciprocal easements in the
Garfield County records.
Effect of Expansion or Contraction. In the event any real property is annexed to
the Common Interest Community as provided herein, or if any real property is
withdrawn from the Common Interest Community as provided herein, the
definitions used in this Declaration shall be automatically expanded or contracted
to encompass and refer to the Common Interest Community as expanded or
contracted, e.g., "Common Interest Community" shall mean the real property
described herein plus any additional real property annexed thereto (the "Annexed
Property") and/or minus any real property withdrawn therefrom, similarly,
"Asiociation Property" and "Lots" shall mean and include those areas as described
herein as well as or less those so designated on any supplemental Declaration or
supplemental Plat (or any amendment to a Declaration or Plat) relating to any real
property which is annexed or withdrawn pursuant to this Article VI. References to
ifris pectaration shall mean this Declaration as so supplemented or as amended.
Every Owner of a Lot in the area annexed to the Common Interest Community
shall, by virtue of ownership of such Lot, be a member of the Association and shall
be entitled to the same rights and privileges and subject to the same duties and
obligations as any other Association Member. Regular Assessments for Lots
within the Annexed Property shall commence as of the date of the Recording of the
supplement to the Declaration and shall be prorated as of such date.
4t
Section 6.7
Section 6.8
Section 6.9
Section 6.10
The Recording of amendments to the Declaration and Plat, whether in the form of
supplement, ind plut, or otherwise, which reallocate the allocated interests in the
Common Interest Community, shall automatically:
(1) Vest in each existing Owner the reallocated allocated interests
appurtenant to the Owner's Lot; and
(2) Vest in each existing Mortgagee a perfected security interest in the
reallocated Allocated Interests appurtenant to the encumbered Lot'
Subdivision of Blocks or Lots. Declarant shall have and hereby reserves the right
to *Uaiuiae arry neclarant-owned Lot located within the Common Interest
Community to create additional Lots, Association Property, and/or streets,
provided, however, that such subdivision is consistent with the Pinyon Mesa PUD
irtan and that the subdivision is accomplished in compliance with County
subdivision requirements. Upon the subdivision of any block or Lot in accordance
with the terms and conditioni contained herein, the Allocated Interests of all
Owners shall be reallocated in accordance with the definition of Allocated Interests
contained in this Declaration'
Transfer of Additional Property to Association. The right, but not the
obligation, to transfer additional real and personal property, and Improvements
thereon, to the Association from time to time in furtherance of this Declaration'
Other Reserryed Development Rights. Subject to compliance with any applicable
Co*ty r.q"ir.*.ntr, p.ilarant reserves the right with respect to all or any
Declaranftwned portion of the Common Interest Community to (a) create
-
Association property; (b) create additional Lots, subject to the maximum set forth
in the pinyon Mesa i.U.D. Plan; (c) combine Lots; (d) convert Lots into
Association property; (e) convert Association property into Lots; (f) create
common elements *d/o.limited common elements; (g) reconfigure Lots, streets'
and/or Association property; and (h) amend the Pinyon Mesa P'U'D. Plan'
Additionally, in order to effectively exercise the rights reserved to Declarant under
this Article vI, Declarant reserves the right to amend this Declaration (without the
consent of Owners, Mortgagees or the Aisociation being required) for purposes of
(a) complying with o, qrritiiyi.rg for any required federal or state registration of the
pioje"t,'(U) ,itirryi1g tiile insurance requirements, or (c) bringing any provision or
proui.ionr of the Declaration into compliance with the ccloA'
Transfer of Declarant's Reserved Rights. Any one or more rights created or
reserved for the benefit of Declarant under this Article vI or elsewhere in this
Declaration may be transferred to any Person by an instrument describing the right
or rights transfened and recorded in Garfield County. Such instrument shall be
42
Section 6.11
Section 6.12
Section 6.13
executed by the transferor Declarant and the transferee. The provisions of Section
38-33.3-304 of the CCIOA shall apply to any transfer of special Declarant rights'
Termination of Declarant's Reserved Rights. with the-exception of Declarant's
rigfrt to uppoint or r.i*. Bourd members and officers of the Association, which
is addressed in Section 8.5 below, the rights reserved to Declarant in this Article
VI shall automatically terminate and expire upon the first to occur of (i) the date
which is thirty (30) years after the recording of this Declaration, or (ii) Declarant's
relinquishment and surrender of such rights by recorded instrument' Declarant
-uy iro* time to time relinquish and surrender one or more but less than all of the
reserved rights, in which event the unrelinquished reservedrights shall remain fully
valid and effective for the remainder of the term thereof. The Association may
extend the time period for exercise of a development right, or reinstate a lapsed
development right, subject to whatever terms, conditions and limitations the
Association muy impose on the subsequent exercise of the development right' The
extension or r.n.*ui of a development right and any terms, conditions and
limitations shall be included in an amendment executed by Declarant or the owner
of the real estate subject to the development right and the Association'
owner Review. Acceptance and waiver of Rights Resarding Development
plao arrd Decla"unfiRere*ed Rights. Each Owner, by its acceptance of a deed
to u Lot, u.k o*t.Affiut tt. O**r has carefully reviewed and understands the
Declarant,s reserueJrights as set forth in this Article VI or elsewhere in this
Declaration, that the Owner accepts and approves such matters and appreciates any
potential impacts that the exercisi of such reserved rights may have on the Owner's
Lot, and expressly waives any rights the Owner may have to object to or to
interfere in any way with the exercise of such rights'
Declarant as Attorney-in-Fact For Owners. Each Owner, by its acceptance of a
deed or oth"r.orrr"fr-vesting in the Owner an interest in a Lot in the Common
Interest Community, does hereby irrevocably constitute and appoint Declarant
(with full power of substitutionjas said Owner's attorney-in-fact, in said Owner's
n*", place and stead, to take any and all actions and to execute and deliver any
and all instruments as may be necessary or appropriate to Declarant's exercise of
the various rights reserved to Declarant under this Article VI or elsewhere in this
Declaration, s=pecifically including, without limitation, Declarant's reserved right to
use all existing easements within the Common Interest Community or to create'
grant, use and/or replat and relocate additional or existing easements across any
iortion of the Common Interest Community excepting platted Building Envelopes'
ARTICLE VII
EASEMENTS
43
Section 7.1
Section 7.2
Section 7.3
Section 7.4
Section 7.5
Easements for Incidental Encroachments. If any portion of an Improvement
approved by the Design Review Committee encroaches in its approved location
upon Association Property, including any future encroachments arising or resulting
from the repair or reconstruction of an Improvement subsequent to its damage,
destruction or condemnation, a valid easement on the surface and for subsurface
support below such surface and for the maintenance of salne, so long as it stands,
shall and does exist for such incidental encroachment.
Utilit-y and Drainage Easements. There are hereby created, granted and reserved
for the use and benefit of the Declarant, the Association, and appropriate public
utilities, perpetual, non-exclusive easements over, upon, across and under those
portions of the Common Interest Community that are designated "Utility-Easement"
or "Drainage Easement" on the Plat or any Supplemental Plat. Utility
Easements may be used for the installation, operation, maintenance, repair,
removal or replacement of underground utilities and irrigation water lines and
related surface facilities. Drainage Easements may be used for the installation,
operation, maintenance, repair, removal or replacement of drainage systems and
facilities. Except as may otherwise be provided in any Subdivision Improvements
Agreement between Declarant and the County or in any other separate agreement
between Declarant and a utility supplier, the party causing the disturbance shall be
obligated to restore, repair, reseed and/or relandscape any area disturbed by the
.*.riir. of these easement rights to as close to its original condition as possible, as
promptly as possible following the completion of any work within a Utility or
Drainage Easement.
Blanket Emergency Services Easement. There is hereby created, granted and
reserved for the use and benefit of all police, sheriff, fire protection, ambulance and
other similar emergency agencies or persons, now or hereafter serving the
Common Interest Community and its Owners and Occupants, a perpetual, non-
exclusive blanket Emergency Services Easement over, upon, along and across all
streets, properties and areas within the Common Interest Community, for use in the
lawful performance of their duties.
Easements Deemed Created. All conveyances of Lots and Association Property
hereafter made, whether by Declarant or otherwise, shall be deemed and construed
to grant and reserve all of the easements referred to in this Article VII and
elsewhere in this Declaration and in any Supplemental Declaration, even though no
specific reference to such easements appears in the conveyancing instruments.
Restrictions on Owners in Easement Areas. Owners of Lots that are subject to
any easements created by this Declaration, a Supplemental Declaration, or a
recorded Plat, or to any existing ditch easements, shall acquire no right, title or
interest in any cables, conduits, mains, lines, or other equipment or facilities or
44
improvements that may be installed upon, over or under the easement area by a
beneficiary of said easlment rights. Moreover, Owners and Occupants of Lots that
are subject to any such easem.t tt *. hereby prohibited from constructing any
improvements upon the easement afeas, altering or obstructing the flow of any
*ut", or drainagi thereon, or landscaping the salne, in any manner that might
interfere with the full and ploper exercise of said easement rights by any
beneficiary thereof. Finaliy, said Owners and Occupants are hereby further
prohibited from violating any of the restrictions relating to the use of the easement
i"u, u, may be set forth in ihis Declaration or in any Supplemental Declaration'
Any Owneior Occupant violating any of these restrictions shall be obligated to
remove the offendini i*prorr.-*t o.landscaping and to restore the surface of the
area to its original cJndition, or otherwise to remedy the violation, at the Owner's
cost and expense, within 30 days following a written request therefor from any
easement beneficiary. If said Owner or Occupant fails to comply with the request
in a timely manner, ihe Association shall have the right to enter upon the Owner's
Lot to perform the necessary work and may assess the costs thereof against the
Owneiand the Owner's Lot in the form of a Reimbursement Assessment'
Recorded Easements and Licenses. In addition to the easements described in this
^q,"ti.t" VII and etre*here in this Declaration, the recorded easements and licenses
appurtenant to or included in the Common Interest Community are set forth on the
Plat.
Section 7.6
Section 8.1
Section 8.2
Association. The Association has been formed as a Colorado nonprofit
*rpo*tiot ,*der the Colorado Nonprofit Corporation Act to manage the affairs of
the Common Interest Community. The Association shall serve as the goveming
body for all of the Owners and Occupants for the protection, improvement,
alteiation, maintenance, repair, replacement, administration and operation of - ,
Pinyon Mesa, the levying and coliection of Assessments and other expenses of the
Association, and such other matters as may be provided in this Declaration' the
Articles and Bylaws. The Association shall not be deemed to be conducting a
business of any kind, and all funds received by the Association shall be held and
applied by it on behalf of the Owners in accordance with the provisions of this
Declaration, the Articles and the Bylaws'
Association Board. The affairs of the Association shall be managed by a Board'
The number, term, and qualifications of the members of the Board shall be fixed in
the Articles of Incorpotution or the Bylaws. A quorum shall be deemed present
throughout any meeting of the Board if persons entitled to cast at least fifty percent
6}r6of the votes on the Board are present at the beginning of the meeting or
ARTICLE VIII
ASSOCIATION
45
Section 8.3
Section 8.4
grant their proxy as provided in C.R.S. Section 7'12S-205(4). With the exception
If matters ihut *uy Le discussed in executive session, as set forth in Section 38-
33.3-308(3-7) of tire ccloA, all regular and special meetings of the Board or any
committee thereof shall be open to attendance by all Members of the Association
or their representatives. Agendas for meetings of the Board shall be made
reasonably available for eiamination by all Members of the Association or their
representatives.
The Board shall have all of the powers, authority and duties granted or delegated to
it by the ccloA, this Declaration, the Articles or Bylaws. Except as provided in
the ccloA, this Declaration, the Articles or Bylaws, the Board may act in all
instances on behalf of the Association.
The Board may not, however, act on behalf of the Association to amend this
Declaration, to terminate the Common Interest Community, or to elect members of
the Board or determine the qualifications, powers and duties, or terms of office of
Board members, but the Board may fill vacancies in its membership for the
unexpired portion of anY term.
The Board may, by resolution, delegate portions of its authority to officers of the
Association, but such delegation of authority shall not relieve the Board of the
ultimate responsibility for management of the affairs of the Association. If
appointed by neclarant, in the pirformance of their duties, the members of the
fioarO and the officers of the Association are required to exercise the care required
of fiduciaries of the Owners. If not appointed by Declarant, no member of the
Board and no officer shall be liable for actions taken or omissions made in the
performance of such member's or officer's duties except for wanton and willful
acts or omissions.
Membership in Association. There shall be one Membership in the Association
for each Lot within the Common Interest Community. The Person or Persons who
constitute the owner of a Lot shall automatically be the holder of the Membership
appurtenant to that Lot, and shall collectively be the "Member" of the Association
*ith r.rp.rt to that Lot, and the Membership appurtenant to that Lot shall
automatically pass with fee simple title to the Lot. Declarant shall hold a
Membership in the Association for each Lot owned by Declarant' Membership in
the Association shall not be assignable separate and apart from fee simple title to a
Lot, and may not otherwise be separated from ownership of a Lot'
voting Rights of Members. Each Lot in the common Interest community shall
U. ""titfta to'one f f l vote in the Association, i.e., one (l) vote per Owner/Jvlember'
Occupants of Lots sirall not have voting rights. If title to a Lot is owned by more
than one (1) person, such Persons shall collectively vote their interest as a single
vote. If only one of the multiple Owners of a Lot is present at a Association
46
Section 8.5
meeting, such Owner is entitled to cast the vote allocated to that Lot. If more than
one of the multiple Owners is present, the vote allocated to that Lot may be cast
only in accordance with the agreement of a majority in interest of the Owners.
Thire is majority agreement if any of the multiple Owners casts the vote allocated
to that Lot without protest being made promptly to the Person presiding over the
meeting by any of the other Owners of the Lot. In the event of a protest being
made by one or more multiple Owners, and a majority of the multiple Owners of
the Lot cannot agree on how to cast their vote, any vote cast for that Lot shall be
null and void with regard to the issue being voted upon' Such multiple Owners
and their Lot shall nevertheless be counted in determining the presence of a
quorum with respect to the issue being voted upon'
In accordance with Section 38-33.3-309 of the CCIOA, and except as may
otherwise be provided in the Bylaws, a quorum is deemed present throughout any
meeting of the Members of the Association if Persons entitled to cast at least fifty
percent (50%) of the votes in the Association are present, in person or by proxy, at
the beginning of the meeting.
Provided a quorum of Members entitled to vote is present in person or by proxy,
the affirmative vote of a majority of the Members so present shall constitute
approval of any matter voted upon unless a different number is required on a
panicular matter by the CCIOA, this Declaration, the Articles or the Bylaws.
The vote allocated to a Lot may be cast pursuant to a proxy duly executed by a Lot.
If a Lot is owned by more than one Person, each Owner of the Lot may vote or
register protest to the casting of a vote by the other Owners of the Lot through a
duly executed proxy. An Owner may not revoke a proxy given pursuant to this
Section 8.4 except by actual notice of revocation to the Person presiding over a
meeting of the Association. A proxy is void if it is not dated or purports to be
revocable without notice. A proxy shall terminate eleven (11) months after its
date, unless a different termination date is otherwise set forth on its face.
The Owners, by a vote of sixty-seven (67%) of all Members present and entitled to
vote at any meeting of the Owners at which a quonrm is present, may remove any
member of the Board with or without cause, other than a member appointed by
Declarant.
Period of Declarant Control of Association. Declarant shall have and hereby
,"r"*", the power to appoint and remove, in its sole discretion, the members of
the Board during the period commencing upon the recording of this Declaration
and terminating no later than the earlier of (a) sixty (60) days after conveyance of
seventy-five percent (75%) of the Lots that may be created to Owners other than
Declarant; or (b) two (2) years after the last conveyance of a Lot by the Declarant
47
in the ordinary course of business; or (c) two (2) years after any right to add new
Lots was last exercised by Declarant, subject to the following:
During said "Period of Declarant Control" of the Association:
(l) Not later than sixty (60) days after conveyance of twenty-five
percent (25%) of the Lots that may be created to Owners other than Declarant, at
ieast one (1) member and not less than twenty-five percent (25%) of the members
of the Board must be elected by Owners other than Declarant.
(2) Not later than sixty (60) days after conveyance of fiffy percent
(50%) of tne Lots that may be created to Owners other than Declarant, not less than
thirty+tr.. and one-third percent (33-ll3%) of the members of the Board must be
elected by Owners other than Declarant.
At any time prior to the termination of the Period of Declarant Control of the
Association, the Declarant may voluntarily surrender and relinquish the right to appoint
and remove officers and members of the Board, but in such event Declarant may require,
for the duration of the Period of Declarant Control of the Association, that specified
actions of the Association or the Board, as described in a recorded instrument executed by
Declarant, be approved by Declarant before they become effective. As to such actions,
Declarant rruy gir. its approval or disapproval in its sole discretion and option, and its
disapprovat siratt invalidate any such action by the Board or the Association. Not later
thanihe termination of the Period of Declarant Control of the Association, the Owners
(including Declarant) shall elect a Board of at least three (3) members, at least a majority
of whom must be Owners other than Declarant or designated representatives of Owners
other than Declarant, and the Board shall elect the officers, with such Board members and
officers to take office upon election. Pursuant to Section 38-33.3-303(9) of the CCIOA,
within sixty (60) days after Owners other than Declarant elect a majority of the members
of the Board, Declarant shall deliver to the Association all property of the Owners and of
the Association held or controlled by Declarant, including, without limitation, the
following items:
(l) The original or a certified copy of the recorded Declaration as amended, the
Association's Anicles of Incorporation, Bylaws, minute books, other books and records,
and any Rules and Regulations which may have been promulgated;
(2) An accounting for Association funds and financial statements from the date
the Association received funds and ending on the date the Period of Declarant Control
ends. The financial statements shall be audited by an independent certified public
accountant and shall be accompanied by the accountant's letter, expressing either the
opinion that the financial statements present fairly the financial position of the Association
in conformity with generally accepted accounting principles or a disclaimer of the
48
Section 8.6
accountant's ability to affest to the faimess of the presentation of the financial information
in conformity with generally accepted accounting principles and the reasons therefor. The
expense of the audit shall not be paid for or charged to the Association;
(3) The Association funds or control thereof;
(4) A copy, for the non-exclusive use by the Association, of any plans and
specifications used in the construction of the Improvements in the Common Interest
Community;
(5) All insurance policies then in force, in which the Owners, the Association,
or its directors and officers are named as insured persons;
(6) Copies of any certificates of occupancy that may have been issued with
respect to any Improvements comprising the Common Interest Community;
(7) Any other permits issued by governmental bodies applicable to the
Common Interest Community and which are currently in force or which were issued
within one year prior to the date on which Owners other than the Declarant took control of
the Association;
(8) Written warranties of contractors, subcontractors, suppliers, and
manufacturers that are still effective;
(9) A roster of Owners and Occupants and Mortgagees and their addresses and
telephone numbers, if known, as shown on the Declarant's records;
(10) Employment contracts in which the Association is a contracting party; and
(l l) Any service contract in which the Association is a contracting party or in
which the Association or the Owners have any obligation to pay a fee to the persons
performing the services.
Contracts and Leases of Declarant. The following contracts and leases, if
entered into before the Board elected by the Owners pursuant to Section 38-33.3-
303(7) takes office, may be terminated without penalty by the Association at any
time after the Board elected by the Owners pursuant to said Section 38-33.3-303(7)
takes office, upon not less than ninety (90) days notice to the other party: (i) Any
management contract, employment contract or lease of recreational or parking
areas or facilities; (ii) any other contract or lease between the Association and
Declarant or an affiliate of Declarant; or (iii) any contract or lease that is not bona
fide or was unconscionable to the Owners at the time entered into under the
circumstances then prevailing. However, the Association shall be obligated under
49
Section 9.1
Section 9.2
Section 9.3
all provisions of the Plant Development Agreement and the.rules and regulations
of ifre Spring Valley Sanitation District. Further, the Association shall be the
,u"..rro, arid assign to that Water Tap Assignment and Water Delivery Agreement
dated the lgth day of June, 2OO6,by and between EIk Springs Homeowners-
Association, Red canyon water company and Pinyon Mesa Development, Inc'
All such contracts and agreements are not voidable. Upon such assignment' th9
Association shall becom-e obligated to perform and shall be entitled to receive the
benefit of all provisions of such contracts and agreements'
ARTICLE IX
POWERS AND DUTIES OF ASSOCIATION
General Powers and Duties of Association' The Association shall have and may
exercise all of the powers and rights ancfuuties of a Colorado corporation formed
under the Colorado Revised Noiprofit Corporation Act, and all of the powers and
duties provided for in the CCIOA including those enumelated in Section 38-33'3-
302 of the CCIOA, as such laws may be amended from time to time, subject only
to the limitations upon such powers as are contained in this Declaration' More
specifically, and without limiting the generality of the foregoing, the Association
shall have all of the powers and duties necessary (i) for the administration,
management, governance and operation of the Common Interest Community and
the Aisociation, 1i9 to own, operate, improve, maintain, repair, manage,lease'
encumber, and otherwise deal with Association Property, and (iii) to do any and all
lawful things that may be authorized, required or permitted to be done by the
Association under the ccloA and/or rri", the provisions of this Declaration and
of any Supplemental Declarations'
power to Grant Easements. The Association shall have the power to grant
u...rr, otifity, drainage, irrigation, and such other easements upon, over, across or
under Association prlpertyis it deems necessary or desirable for the benefit of the
common Interest community or parts thereof, or for the benefit of all or less than
all of the Owners, or for the benefit of lands situated outside the Common Interest
Community.
Power to convey or Encumber Association Properry. The Association shall
have the power to "or*.y, - subject to a security interest, portions of the .--j
Association rroperty if owners entitled to cast at least sixty-seven percent (67%)
of the votes in the Association, including sixty-seven percent (67%) of the votes
allocated to Lots not owned by Declarant, agree to that action. Proceeds of the sale
are an asset of the Association.
An agreement to convey, or subject to a security interest, Association Property
must be evidenced bV ttre .*..rtio, of an agreement, in the same manner as a deed'
50
Section 9.4
Section 9.5
by the Association. The agreement must speciff a date after which the agreement
will be void unless approved by the required percentage of Owners. Any grant,
conveyance or deed executed by the Association must be recorded in the County,
and is effective only upon recordation. The Association, on behalf of the Owners,
may contract to convey an interest in an Association Property, but the contract is
not enforceable against the Association until approved, executed and ratified
pursuant to this Section 9.3. Thereafter, the Association shall have all the powers
necessary and appropriate to effect the conveyance or encumbrance, including the
power to execute deeds or other instruments. A conveyance or encumbrance of
Association Properly pursuant to this Section 9.3 shall not deprive any Lot of its
rights of (i) access, ingress and egress to the Lot, and (ii) support of the Lot. A
conveyance or encumbrance of Association Property pursuant to this Section 9.3
shall not affect the priority or validity of pre-existing encumbrances.
General Power to Provide Services and Facilities to Owners. The Association
shall have the power, but not the obligation, to acquire, construct, operate, manage,
maintain, repair and administer services and facilities for the benefit of the Owners,
or some of them, including, without limitation, security, animal control, vegetation
control, insect and pest control, television service, parking facilities, transportation
facilities, snow removal, signage, (including entry monuments), lighting,
(including seasonal lighting), interior and perimeter fencing, landscape walls,
landscaping services and facilities, noxious weed control, drainage facilities,
including retention and detention ponds, irrigation facilities, water features, trash
and solid waste disposal services, including recycling programs, utility services,
recreational facilities and services, maintenance, and such other services, functions
and facilities as are deemed appropriate by the Board. The foregoing list shall not
be deemed to be a representation by Declarant of services or facilities that will in
fact be available for use by the Owners. The Association may enter into such
agleements and arrangements as it may deem appropriate with any provider of
utilities or services to the Common Interest Community or any portion thereof,
including any special district that provides such services, and may form or join any
districts created to provide such services.
Power to Provide Special Services to Owners. The Association shall have the
power to provide services to an Owner or group of Owners. Any service or
services to an Owner or group of Owners shall be provided pursuant to an
agreement in writing, or through one or more Supplemental Declarations, which
shall provide for payment to the Association by such Owner or group of Owners of
the costs and expenses of the Association in providing such services, including a
fair share of the overhead expenses of the Association, and shall contain reasonable
provisions assuring that the obligation to pay for such services shall be binding
upon any heirs, personal representatives, successors and assigns of the Owner or
5l
group of Owners and that the payment for such services shall be secured by a lien
on the Lot(s) of the Owner or group of Owners.
Section 9.6 Power to Charge for Special Association Properf Uses and Special
Association Services. The Association shall have the power to establish
reasonable admission or other fees or charges for any special or extraordinary
Association Property uses or Association services such as special parking
privileges, special recreation facilities, conference rooms, instruction, or similar
uses beyond the ordinary use of Association Property and ordinary Association
services. Such charges or fees shall be set forth in schedules ofcharges and fees
adopted from time to time by the Board.
Section 9.7 Power to Acquire Property and Construct Improvements. The Association
may acquire, hold, encumber and/or convey any right, title or interest in or to real
or personal property, including Improvements. The Association may construct
Improvements on Association Property and may demolish existing Improvements
thereon.
Section 9.8 Power to Adont Rules and Regulations. The Association may adopt, amend,
repeal, and enforce such reasonable Rules and Regulations as the Board may
consider necessary, desirable or appropriate from time to time with respect to the
interpretation and implementation of this Declaration, the operation of the
Association, the use and enjoyment of Association Property, and the use of any
other property within the Common Interest Community ("Rules and Regulations").
Any such Rules and Regulations shall be effective only upon adoption by
resolution at an open meeting of the Board. Notice of the adoption, amendment, or
repeal of any Rule or Regulation shall be given in writing to each Owner, and
copies of the currently effective Rules and Regulations shall be made available to
each Owner and Occupant upon request and payment of the reasonable expense of
copying the same. Each Owner and Occupant (and all other Persons who are
authorized users of Association Property) shall comply with such Rules and
Regulations, and each Owner shall see that Occupants claiming through such
Owner comply with such Rules and Regulations. Such Rules and Regulations
shall have the same force and effect as if they were set forth in and were part of this
Declaration. In the event of conflict between the Rules and Regulations and the
provisions of this Declaration, the provisions of this Declaration shall govern.
Such Rules and Regulations may establish reasonable and uniformly applied
penalties (including the levying and collection of fines) for the violation of such
Rules and Regulations or of any provision of this Declaration, the Articles, or the
Bylaws.
Section 9.9 Power to Coqtract with Employees. Asents. Contractors. Districts.
Consultants and Managers. The Association shall have the power to contract
52
with, and/or to employ and discharge employees, agents, independent contractors
and consultants, including lawyers and accountants, and special districts, to
perform any of the responsibilities of the Association under this Declaration,
including without limitation maintenance responsibilities. The Association shall
also have the power to retain and pay for the services of a manager or managers,
which may be an affiliate of Declarant, to undertake any of the administrative or
managerial responsibilities for which the Association may have responsibility
under this Declaration, to the extent deemed advisable by the Association, and may
delegate any of its duties, powers, or functions to any such manager.
Notwithstanding any delegation to a manager of any duties, powers, or functions of
the Association, the Association and its Board shall remain ultimately responsible
for the performance and exercise of such duties, powers, and functions.
Section 9.10 Power to Assign Future Income. The Association shall have the power to assign
its right to future income, including the right to receive Regular Assessments, but
only following the affirmative vote of the Owners of Lots to which at least fifty-
one (51) percent of the votes in the Association are allocated, at a duly-called
meeting of the Members of the Association.
Section 9.1I Duty to Accept Propertv and Facilities Transferred by Declarant. The
Association shall accept title to any real property, or interests in real property,
including any Improvements and personal property thereon, and including water
rights and related facilities, transferred to the Association by Declarant, or
Declarant's successors or assigns. Property interests transferred to the Association
by Declarant or its successors or assigns may include fee simple title, undivided
interests, easements, leasehold interests and licenses to use. Except as may
otherwise be approved by the Board, any property or interest in property transferred
to the Association by Declarant or its successors or assigns shall be within the
boundaries of the Common Interest Community; provided, however, that Declarant
shall be entitled to transfer and convey the beneficial use of an easement, subject to
any obligations thereunder, located outside of the Common Interest Community
but which benefits the Association and the Owners.
Any property or interest in properfy transferred to the Association by Declarant
shall, except to the extent otherwise specifically approved by resolution of the
Board, be transferred to the Association free and clear of all monetary obligations,
liens and encumbrances (other than the lien of property taxes and assessments not
then due and payable), but shall be subject to the terms of this Declaration, and
easements, covenants, conditions, restrictions, and equitable servitudes or other
encumbrances of record or otherwise in existence. Except as otherwise specifically
approved by resolution of the Board, no property or interest in property transferred
to the Association by Declarant shall impose upon the Association any obligation
53
Section 9.12
Section 9.13
Section 9.14
Section 9.15
to make monetary payments to Declarant or any affiliate of Declarant, including,
but not limited to, any purchase price, rent, charge, or fee'
Any Improvements or personal property transferred to the Association by Declarant
snat U" i, good working order, ordlnary wear and tear excepted, and at the time of
transfer Dectarant shall make any repairs reasonably required to bring the
transferred property into good working order. Subject only to the foregoing, the
Association shall accept all properties transferred to it by Declarant in their "Where
Is, As Is" condition, withouirecourse of any kind, and Declarant disclaims and
shall not be deemed to make or to have made any representations or warranties,
express or implied, by fact or law, with respect to the transferred properties or any
aspect or element thereof, including without limitation warranties of
merchantability, fitness for a particular purpose, or workmanlike construction'
Duty to Manase and care for Association Propertv. The Association shall
manage, operate, .*. for; maintain, repair and replace all Association Property and
keep lhe same in a functional, clean and attractive condition for the benefit and
enjoyment of the Owners.
Dutv to pay Taxes. The Association shall pay any taxes and assessments levied
,p"" Att".t"tton Property and any other taxes and assessments payable by the
Association before they become delinquent. The Association shall have the right
to contest any such taxes or assessments by appropriate legal proceedings provided
no sale or foreclosure of any lien for such tax or assessment occurs and provided
further that the Association shall keep and hold sufficient funds to pay and
discharge the taxes and assessments, together with any interest and penalties which
,nuy u.J*. with respect thereto, if the contest of such taxes is unsuccessful.
Duty to Keep Association Records. The Association shall keep financial records
in sgfficient detail to enable the Association to carry out its responsibilities under
this Declaration and to comply with the requirements of the CCIOA, including, but
not limited to, current ,..ordt of paid and unpaid Assessments for each Lot' All
financial and other records of the Association shall be made reasonably available
for examination by the Owners and the authorized agents of the Owners all as
required by CCIOA.
Dutv to Support Design Review Committee. The Association shall take such
*tionr, provide such funds, and do such other things as may be necessary or
uppropriut. from time to time to support and assist the Design Review Committee
in the-perforrnance of its responsibilities under this Declaration, and shall
coopeiate with said Committee to the fullest extent possible in such matters.
54
Section 9.16 Insurance. Commencing not later than the time of the first conveyance of a Lot to
a Person other than Decliant, the Association shall maintain and keep in effect at
all times the following types or ins,rran"e, *a tr" cost of said coverage shall be
faid by the Association as a Common Expense:
(1)Casualtylnsurance.To.theextentreasonablyavailable,property
insurance on all Assoc-iation Property, including but not limited to Improvements
and personatty, owned or leasedLy ih. A.ro.iation, and on all property that must
become Association Property. such insurance shall be for broad form covered
causes of loss, including casualty, fire, and extended coverage insurance incl rding,
if available at reasonable cost, .or.rug. i* ,*aair* and malicious mischief and'
if available and if deemed appropriate, coverage for floo!, earthquake' and war
risk. Such insurance shall;to the exteni reasolably obtainable, be for the full
insurable ,eplacemlnt cosi of the insured property, less. applicable deductibles at
the time the insurance is purchured *J ui"u"tt rene*al date' exclusive of land'
excavation, foundations and other items normally excluded from property policies'
(2)Liabilitylnsurance.Comprehensivegeneralliabilityinsurance
against claims *a riuuiliaies arising in connection with the ownership' existence'
use, maintenance o, -*ug.-ent Jthe Association Property' and covering public
liability or claims or riruirlty for injurylo p.rrort and/oi property, and death of any
person or persons, *a, if rfr. ,q,ssoiiaiion i*, or operates motor vehicles, public
liability or claims J-ri"u1ity for bodily injury (inctuding death) and property
damage arising as a result of the o*rr.'rffi ani operation of motor vehicles' Such
liability insurance for other than motor ,"hi"l" liability shall' to the extent
reasonably outainable, iul r,ur. limits. of not less than one Million Dollars
($1,000,000'OOl plt p"'*" *afwo Million Dollars ($2'000'000'00) per
occulTence;(b)insuretheBoard,theDesignReviewCommittee,theAssociation
and its officers, the manager, if any, -a it'.it respective employees' agents and all
persons acting as agents; (c) include the Declarant as an additional insured as its
interests may appear; (d) include the owners as additional insureds, but only for
claims and liabilities arising in connection with the ownership' existence' use'
maintenanceormanagementofAssociationProperty;(e)coverclaimsofoneor
more insurea purti"s-a'gainst other insured parties; (_f) b: written on an occulrence
basis; and (g) ,t uii nrir. as additional insureds such other parties as may be
required bY sPecific agreements'
(3)ContractualLiabilitylnsurance'Totheextentreasonably
available, contractual liability irrur*.. covering such contractual obligations and
liabilities, ina.*niir.ations, hold harmless agreements, and agreements to defend'
as the Association may have o, u. u purty to"from.time to time' with coverage of at
least one Million Dollars ($1,000,060.00; o, such greater amount as the Board
shall determine to be appropriate from time to time'
55
(4)FidelityBonds.To,l.extentreasonablyavailable,fidelitybond
.or.rug. against dishlnest acts on the part of directors, officers, managers,
trustees, agents, employees or volunteelt t..n*tjule for handling funds belonging
to or administered by the Association If funds of the Association are handled by a
management agent, if"n f'atfity bond coverage may also be obtained for the
officers, employees,-;;;g;r ihereof handlin-g or rlsponsible for Association
funds. The fidelity bond or insurance "r*t;;. the Association as the named
insuredandshallbewrittentoprovideprotectioninanamountnolessthanthe
lesser of (a) orr.-fruif ti-es the Associaiion's estimated annual operating expenses
andreserves,(b)asumequaltothree(3)monthsaggt2qateRegularAssessments,
plus reserves, as calculated from ttt..ut .iinuOgei of itre.Association; or (c) the
estimated ,n*i** u*ount of funds, including i"r.*.r,
-in
the custody of the
Association (and its management ageno-ai* -".* time. In connection with such
coverage, an appropriate endors"l"lt 1o
the policy to cover any person who serves
without.o*p"nru,'ion shall be added if the policy would not otherwise cover
(6)DirectorsandofficersLiabiliryInsurance.Directorsandofficers
liability insurance *itr, ror.rag; of a1]east one Million Dollars ($1'000'000'00) or
such gteater amount as the go;ra shall approve for all Association' Board and
Design Review committee directors, officers, members and managers' for any and
allerrorsand/oro*i,,ion,*aott,.'.o,eredactionsthatoccurduringtheirtenure
inofficeoremployment.Thisinsurancecovefageshallbemandatory.
(7) Other Insurance' Such other insurance in such amounts as the
Board shall determirr., ao* ii*. ,o time, to be appropriate-to protect the
Association or the Owners' or as may be required by the CCIOA'
(8) General Provisions Respecting Insurance' Insurance obtained by
theAssociationmaycontainsuchdeductibleprovisionsasgoodbusinesspractice
may dictate. If the insurance described is not reasonably available' or if any policy
of such insurance i, ,*..i.a ", "o,
renewed without a ieplacement policy therefor
having been obtained by;;;; A;;".iation.shall promptly cause notice of that fact
to be delivered or sent prepaid by U'S' Mail to all Owners'
Insurance policies carried pursuant to sections 9'16(1) and (2).shall provide that (i) each
owner is an insured person undeithe policy with respect to liabiliry arising out of such owner's
interest in the Association property o, *.-*b.rship in the Associati'on; (ii) the insurer waives its
rights of subrogation under the poiicy ,g"i"ilr" issociation' each Owner' and any Person
volunteers.
(5)Worker,sCompensation.AWorker'sCompensationpolicy,if
n.."rrury, to meet the requirements of law'
56
claiming by, through, or under such Owner or any other director, agent, or employee of the
foregoing; (c) no act or omission by any ownet, unless acting within the scope of such owner's
urtrr"orition 6ehalf of the Association, will void the policy or be a condition to recovery under the
policy; and (d) if at the time of a loss under the policy, there is other insurance in the name of an
b*".i.or.iirg the same risk covered by the poli"y, the Association's policy shall be the primary
insurance. An insurer that has issued an'insurance policy for the insurance described in Sections
9.16(l) and 9.16(2) above shall issue certificates or memoranda of insurance to the Association
and, upon request, to any Owner or holder of a security interest' Unless otherwise provided by
statute, the insurer issuing the policy may not cancel or refuse to renew it until thirty (30) days
after notice of the propor.d cancellation or nonrenewal has been mailed to the Association, and
each Owner ana notOer of a security interest to whom a certificate or memorandum of insurance
has been issued, at their respective last-known addresses'
Any loss covered by the property insurance policy described in Section 9.16(1) above
must be adjusted with the Association, tut the insurance proceeds for that loss shall be payable to
any insurance trustee designated for that purpose, or otherwise to the Association, and not to any
hoider of a security intereit. The insurante irustee or the Association shall hold any insurance
proceeds in trust for the Owners and lienholders as their interests may appear. Subject to the
provisions of Section 3g.33.3-313(9) of the ccloA, the proceeds must be disbursed first for the
iepair or restoration of the damaged property, and the Association, Owners, and lienholders are
not entitled to receive payment o1any portion of the proceeds unless there is a surplus of proceeds
after the property t us b"er completeiyiepaired or reitored or the Common Interest Community is
terminated.
The Association may adopt and establish written nondiscriminatory policies and
procedures relating to the ruurnitiut of claims, responsibility for deductibles, and any other matters
of claims adjustment. To the extent the Association settles claims for damages to real property, it
shall have the authority to assess negligent Owners causing such loss or benefitting from such
repair or restoration for all deductibles paid by the Association. In the event more than one Lot is
damaged by a loss, the Association in iis reasonable discretion may assess each Owner a pro rata
share of any deductible paid by the Association. Insurance obtained by the Association shall, to
the extent reasonably possible, and provided Declarant reimburses the Association for any
additional premium payable on account thereof, name Declarant as an additional inswed and shall
contain a waiver of rights of subrogation as against Declarant.
Insurance policies and insurance coverage shall be reviewed at least annually by the Board
to ascertain whether coverage under the policies is sufficient in light of the current values of the
Association property ana iritight of the possible or potential liabilities of the Association and
other insurea parties. The afoiementionid insurance may be provided under blanket policies
covering the Association Property and property of Declarant.
In no event shall insurance coverage obtained or maintained by the Association obviate the
need for Owners and Occupants to obtain insurance for their own benefit'
57
Furthermore, to the extent reasonably available, insurance policies obtained by the
Association shall contain the following provisions:
(l) The coverage afforded by such policies shall not be brought into
contribution or proration with any insurance which may be purchased by an Owner,
Occupant or Mortgagee.
(2) The conduct of any one or more Owners or Occupants shall not
constitute grounds for avoiding liability on any such policies.
(3) Each policy must contain a waiver of any defenses based on co-
insurance or on invalidity arising from the acts of the insured.
(4) A "severability of interest" endorsement shall be obtained which
shall preclude the insurer from denying the claim of an Owner or Occupant
because of the conduct or negligent acts of the Association and its agents or other
Owners or OccuPants.
(5) Any "no other insurance" clause shall exclude insurance purchased
by Owners, Occupants or Mortgagees.
(6) Coverage must not be prejudiced by (i) any act or neglect of Owners
or Occupants when such act or neglect is not within the control of the Association,
or (ii) any failure of the Association to comply with any warranty or condition
regarding any portion of the Common Interest Community over which the
Association has no control'
(7) Coverage may not be canceled or substantially modified without at
least thirty (30) days (or such lesser period as the Association may reasonably
deem appropriate) prior written notice to the Association'
(8) Any policy of property insurance which gives the insurance carrier
the right to elect to restore damage in lieu of a cash settlement must provide that
such ilection is not exercisable without the prior written approval of the
Association, or when in conflict with the insurance trust provisions contained
herein, or any requirement of law'
(9) A recognition of any insurance trust agreement entered into by the
Association.
(10) Eachhazard insurance policy shall be written by ahazatd insurance
carrier which has a financial rating as designated in Besf's Key Rating Guide of
Class VI or better, or if such rating service be discontinued, an equivalent rating by
58
a successor thereto or a similar such rating service' Each insurance carrier must be
specifically licensed or authorized by law to transact business within the State of
Colorado.
(9) Nonliability of Association or Executive Board, Notwithstanding
the duty of the Association to obtain insurance coverage, as stated herein' neither
the Associatiol no, *j Board member, nor the Declarant, shall be liable to any
Owner, Occupant, Mortgagee or other Person' if any risks or hazards are not
covered by insuranc", oiiitt" appropriate insurance is not obtained because such
insurance "ou"rug"
i, not reasona-blyobtainable on the Association's behalf' or if
the amount of insurance is not adequate, and it shall be the.responsibility of each
Owner and Occupant to ascertain the coverage and protection afforded by the
Association's insurance and to procure and pay for such additional insurance
coverage and protection as the Owner or Occupant may desire'
(10) Master Premiums. Premiums for insurance policies.purchasedty
the Association and other expenses connected with acquiring such insurance shall
be paid by the Association ai a common Expense, except that the amount of
increase over any annual or other premium occasioned by the use, misuse,
occupancy or abandonment of a Lot or its appurtenances, or Association Property'
by an owner or occupant, ffioY at]h9 goardt election, be assessed against that
particular owner and his Lot as a Reimbursement Assessment.
(11) Insurance claims. The Association is hereby inevocably.appointed
and authorireO, ,rrq""i,o ah" provisions contained herein, to adjust all claims
arising under insur-ance policies purchased by the Association and to execute and
deliver releases "pon
tt "
puy-.rrt of claims, and to do all other acts reasonably
necessary,o u""o-ftish any of the foregoing. The Board has full and complete
po*., to act for the Association in this i.g-a, and may, in its discretion' appoint
an authorized representative, or enter into an insurance trust agreement' wherein
the trustee shall have the authority to negotiate losses under any policy purchased
by the Association.
(12) Benefit. Except as otherwise provided hertin, all insurance policies
purchased by the Association shall be for the benefit of, and any proceeds of
insurance r...ir.Jly the Association or any insurance trustee shall be held or
disposed of in trust f:or the Association, the Owners, or the Occgpants' as their
interests may aPpear'
(13) other Insurance to be carried by owners. Insurance coverage on
the furnishings and other items of personal property belonging to a owner or
O.rrp*t, pulUU. liability insurance coverage upon each Lot' and casualty
insurance coverage on the Improvements constructed on Lots, shall be the
59
responsibility of the Owner or Occupant of the Lot' No Owner or Occupant shall
maintain any insuran"", *h.th., onlt. Lot or otherwise, which would limit or
reduce the insurance proceeds payable *0", the casualty insurance maintained by
the Association in the event of du*ug. to the Improvements or fixtures on
Association ProPertY.
Section 9.17 DamagetoCommonlnterestCpmmupity.Anyportiong|theCommonlnterest
Community fo. *hi.hTn-Er..qrire;-undei Section 38-33'3-313 of the
ccloA which i, d;;;-oiJ.rtroy"a must be repaired or replaced promptly by
the Association unless: (i) the common Interest community is terminated; (ii)
repair or replacem."t *o"fA be illegal under any state or local statute or ordinance
governing health or safety; (iii) sixty.s"u.n p",""nt (67%).of the owners, including
owners of every f,ot itrat wiit not Ue rebuilt, vot. noi to rebuild; or (iv) prior to the
conveyanceofanyt.ottoapersonotherthanDeclarant,aMortgageeonthe
damagedportionoftheCommonlnterestCommunityrightfullydemandsallora
sutstintiat part ofthe insurance proceeds'
The cost of repair or replacement in excess of insurance proceeds and reserves is a
Common Expense. If ihe entire Common Interest Cgmmunity is not repaired or
replaced, the insuranctfroc""d, attributable to the damaged Association Property
must be used to ,.rtor. ih. du*ug.d area to a condition compatible with the
remainder of the Common Intereit Community, and, except to the extent that other
Persons will be distributees, the insurance proteed-s attributable to Lots that are not
rebuilt must be distributed to the Owners oithose Lots, or to lienholders' as their
interests may appear, and the remainder of the proceeds must be distributed to all
owners or lienhold.r, u, their interests may appear in proportion to the common
Expense liabilities of all the Lots'
In the event of damage to or destruction of all or a portion of the Association
Property due to fire o"r other adversity or disaster, the insurance proceeds' if
sufficient to reconstruct or repair the damage, shall be applied by the Association
to such reconstruction and repair. If the in;u;*"" p'o""eds with respect to such
Association eroperty damug. o, destruction are insufficient to repair and
reconstruct trre aamage or d"estruction, the Association may levy aspecial
Assessment in the a{gregateamount of such deficiency, or if any Owner or group
of owners is liable ro, ,.,.t, damage, may levy a Reimbursement Assessment
against the Owneror group of Owners responsible therefor' and shall proceed to
make such repai^ or l""orrtruction. Such Assessment shall be due and payable as
provided by resoluiion of the Board, but not sooner than sixty (60) days after
written notice thereof. The Assess-"riprorided for herein shall be a debt of each
owner assessed and a lien on his Lot, and may be enforccd and collected in the
same mann., u, *y R.*rr-"nt Lien fiovidia fot in this Declaration' If the entire
damaged Associatitn Property is not ripaired or replaced, the insurance proceeds
60
Section 9.l8
Section 10.1
attributable to the damaged Association Property must be used to restore the
damaged area to a condition compatible with the remainder of the Common
Interest Community. No distributions of insurance proceeds shall be made unless
made jointly payable to the Owners and first Mortgagees of their respective Lots, if
any.
Limited Liability. Neither the Association nor its past, present or future officers
or directors, nor any other employee, agent or committee member of the
Association shall be liable to any Owner or Occupant or to any other Person for
actions taken or omissions made except for wanton and willful acts or omissions.
Without limiting the generality of the foregoing, the Association, the Board and the
Design Review Committee shall not be liable to any Owner or Occupant or other
Person for any action or for any failure to act with respect to any matter if the
action taken or failure to act was in good faith and without malice. Acts taken
upon the advice oflegal counsel, certified public accountants, registered or
licensed engineers, architects or surveyors shall conclusively be deemed to be in
good faith and without malice. To the extent insurance carried by the Association
for such purposes shall not be adequate, the Owners severally agree to indemniff
and to defend the Association, the Board and the Design Review Committee
against claims, damages or other liabilities resulting from such good faith action or
failure to act.
ARTICLE X
ASSESSMENTS
Assessment Oblieation and Lien. Declarant, for each Lot, shall be deemed to
covenant and agree, and each Owner, by acceptance ofa deed therefor (including a
public trustee's or sheriff s deed), whether or not it shall be so expressed in any
such deed or other instrument of conveyance, shall be deemed to covenant and
agree, to pay to the Association: (l) Regular Assessments or charges, (2) Special
Assessments, and (3) Reimbursement Assessments, such assessments to be
established and collected as hereinafter provided (collectively, the "Assessments").
No Owner shall have any right to set-off against an Assessment any claims that the
Owner may have or claim to have against the Association. The Assessments,
together with interest, late charges, costs, and reasonable attomeys' fees, shall be a
continuing lien and security interest upon the Lot against which each such
Assessment is charged. The obligation for such payments by each Owner to the
Association is an independent covenant, with all amounts due from time to time
payable in full without notice (except as otherwise expressly provided in this
Declaration) or demand, and without set-off or deduction of any kind or nature.
Each Owner is liable for Assessments made against such Owner's Lot during his
period of ownership of the Lot. Each Assessment, together with interest, late
charges, costs and reasonable attorneys' fees, shall also be thejoint, several and
6l
Section 10.2
Section 10.3
Section 10.4
personal obligation of each Person who was an Owner of such Lot at the time
when the Assessment became due. Upon the transfer of title to a Lot, the
transferor and the transferee shall be Stintty, severally and personally liable for all
unpaid Assessments and other charges due to the Association prior to the date of
transfer, and the transferee shall be personally liable for all such Assessments and
charges becoming due thereafter'
statutory Lien. The Association has a statutory lien pursuant to Section 38-33'3-
316 of the ccloA on the Lot of an owner for all Assessments levied against such
Lot or fines imposed against such Lot's Owner from the time the Assessment or
fine becomes due (the;'Assessment Lien"). Fees, charges, late charges, attomeys'
fees, fines and interest charged by the Association pursuant to the CCIOA or this
Declaration are enforceable as Assessments. The amount of the lien shall include
all such items from the time such items become due. If an Assessment is payable
in installments, the Association has an Assessment Lien for each installment from
the time it becomes due, including the due date set by the Board's acceleration of
installment obligations. An Assessment Lien is extinguished unless proceedings to
enforce the lien are instituted within six (6) years after the full amount of
Assessments becomes due.
Lien Superior to Homestead and other Exemptionq. An Assessment Lien shall
ption now or hereafter provided by the laws of
the State of colorado or any .*.rnplion now or hereafter provided by the laws of
the United States. The acceptance of a deed subject to this Declaration shall
constitute a waiver of the homestead and any other exemption as against said
Assessment Lien.
Prioritv of Lien. An Assessment Lien is prior to all other liens and encumbrances
on a Lot, excePt as follows:
(1) Liens and encumbrances recorded before the recordation of this
Declaration;
(2)AsecurityinterestontheLotwhichhaspriorityoverallo!h:l
security interests on the Lot and which was recorded before the date on which the
Assesshent sought to be enforced became delinquent. An Assessment Lien is
prior to tfre securif interest described in the preceding sentence to the extent of an
'amount equal to the Regular Assessments (based on a Budget adopted by-the
.
Association pursuant to-section 10.7 below) which would have become due, in the
absence of any acceleration, during the six (6) months immediately preceding
institution by the Association or any party holding a lien senior to any part of the
Association lien created under this Article X of an action or a nonjudicial
foreclosure either to enforce or to extinguish the lien;
62
Section 10.5
Section 10.6
(3) Liens for real estate taxes and other govemmental assessments or
charges against the Lot; and
(4) As may otherwise be set fonh in the CCIOA' The priority of
mechari"s' and mateiialmen's liens is not affected by the CCIOA'
This Article X does not prohibit an action or suit to recover sums for which this
Article X creates a lien or prohibits the Association from taking a deed in lieu of
foreclosure. Sale or transfer of any Lot shall not affect the lien for an Assessment'
Perfection of Lien. The recording of this Declaration constitutes record notice
;d p.rf.rtt"r;f the statutory lien. No further recordation of any claim of lien for
Assessments is required; however, a claim may be recorded at the Association's
option, in which event costs and attorneys' fees incurred in connection with the
pi.pa1ution and filing of such claim shall be assessed against the Lot as a
Reimbursement Assessment'
Regular Assessments.
(l)ARegularAssessmentshallbemadeannuallyagainsteachLot,
based upon an *rruu"t grrdget prepared by the Board, forpurposes of paying (i) the
annual costs of operating ulno aa*inistering the Association and all other common
Expenses, (ii) reasonab[ ,.r.*., for contingencies, replacements' and other
;;;;, p.rrpor"r, (iii) the costs of services rendered or expenditures incurred by the
Association to or foi less than all Lots, and (iv) such other matters as may be
reasonably determined by the Board to be the subject of a Regular Assessment;
(2)RegularAssessmentsshallbeallocatedequallybetweenallLotsin
the common Interest community, except that any common Expense or portion
thereof that in the judgment of the Board benefits fewer than atl of the Lots shall be
assessed exclusively u'guintt the Lots benefitted. If Common Expense liabilities
are reallocated, Comm-on Expense Assessments and any installment thereof not yet
due shall be reallocated in accordance with the reallocated Common Expense
liabilities.
(3) Regular Assessments shall be levied on a calendar year basis,
except tirut tt. initial Regular Assessment period shall commence on the first day
of the calendar *oi,r, or-qrurt.r in which ih. firrt Lot is conveyed by Declarant to
a Person other than Declarant. Regular Assessments shall be paid in installments
on a monthly, quarterly or semi-anirual basis, as the Board may determine from
time to time, and shalibe due either on the first day of each calendar month or on
the first day of each calendar yeal quarter (January l, April l, July I and october
63
Section 10.7
l), or on the first day of a semi-annual period (e.g., January 1, July 1) as
appropriate. Unless and until changed to a monthly or semi-annual system by the
Board, Regular Assessments shall be due and payable on the first day of each
calendar quarter. Any Owner acquiring a Lot between installment due dates shall
pay a pro rata share of the immediately preceding installment.
(4) The Board shall fix the amount of the Regular Assessment, using
the Budget procedure described below, at least thirfy (30) days before the end of
each calendar year. Written notice of the Regular Assessment shall be sent to each
Owner. Failure of the Board timely to fix and levy the Regular Assessments for
any year or to send a notice thereof to any Owner shall not relieve or release any
Owner from liability for payment of Regular Assessments or any installments
thereof for that or subsequent years as soon as the Board levies the Regular
Assessment and provides notice thereof. If a duly adopted Budget is amended
during the calendar year, the Board shall provide written notice to the Owners of
any changes caused thereby in the remaining Regular Assessments due during that
year.
(5) The Board shall also mail to each Owner at least ten (10) days prior
to the due date thereof a written notice of the amount of the next quarterly (or
monthly or semi-annual, as the case may be) installment of Regular Assessment
that is due from such Owner, and the date on which such installment is due
pursuant to Section 10.6(4) above. Failure of the Board to send timely notice to
any Owner of an installment of Regular Assessment due shall not relieve or release
any Owner from liability for payment of that installment as soon as the Board in
fact provides such notice.
(6) In accordance with Section 38-33.3-314 of the CCIOA, any surplus
funds remaining after payment of or provision for Association expenses and any
prepayment of or provision for reserves shall be carried forward as a credit against
the next year's Budget.
Association Budget. Commencing in 2007, and during the last three (3) months
ofeach year thereafter, the Board shall prepare or cause to be prepared an
operating budget (the "Budget") for the next calendar year. The Budget shall
provide for the allocation of any surplus funds remaining from any previous
Budget period. The annual Budget may provide for a Special Assessment in any
calendar year, if considered necessary or appropriate by the Board. Altematively,
the Board may atany time adopt a special Budget that provides for a Special
Assessment. Within thirty (30) days after adoption of any proposed Budget for the
Association, the Board shall mail, by ordinary first class mail, or otherwise deliver,
a summary of the Budget to all the Owners and shall set a date for a meeting of the
Owners to consider ratification of the Budget not less than fourteen (14) nor more
64
Section 10.8
Section 10.9
than sixty (60) days after the mailing or other delivery of the summary' Such
meeting may, but need not be, concurrent with the annual meeting of the Members
as provided in the il;;;. Unless at.that meeting seventy-five percent (75%) of
uitb*r,.r, reject the Budget, the Budget shall be ratified, whether or not a quorum
of owners is present. tn ine event that the proposed Budget is rejected, the Budget
last ratified by the Owners shall be continued until such time as the Owners ratiff a
subsequent Budget proposed by the Board'
If the Board considers it necessary or appropriate, a dulyadopted Budget may be
amended during tfre .ui.nOu, year by ilie goarA, provided the same notice and
ratification pror.durc is followed for the amended Budget as is required for the
annual Budget'
Special Assessments. In addition to-the Regular Assessments and Reimbursement
Assessments authoEed in this Article X, the Board may levy, in any assessment
year, aspecial err"rr*.nt applicable to that year only.for the purpose of
defraying, in whole or in part,ihe cost of anytonstruction, reconstruction, repair,
maintenanc, or rrprur..ent of capital improvemgntl (including related fixtures
and personat property and including, without limitation, irrigation systems)' to or
upon or serving the 6ommon Interist Community, or for excess reconstruction
costs or other extraordinary expenses, or to acquire Association Property' or for
funding any operating deficit of the Association. Special Assessments shall be
allocated in the ,u*."**er as Regular Assessments, that is, equally amongst all
Lots in the common Interest community, and shall be due and payable to^the
Association on the due date fixed by ttr" go*O in the notice given to the Owners of
such Specia n.r.rrient, which due date shall be no earlier than thirty (30) days
ut.i tr,. giving ors,rrt, notice. Any special AslessmSnt.,Tr * Improvement or
other expenditure which in theiuagmJnf of the Board will benefit fewer than all of
the Lots shall only be levied against the Lots benefitted' If fewer than all of the
Lots will be subject to the special Ars"srrrrent, then such special Assessment shall
be allocated equally amongst those Lots'
Reimbursement Assessments. In addition to the Regular and Special
Assessment,u,thlffi-.,"*der,theBoardmaylevyagainstanyowneror
owners, at any time and from time to time, a Reimbursement Assessment for
purposes of reimburtiig rt. Association for all costs and expenses incurred by it in
enforcing any provision of or in remedying any violation of this Declaration' the
Articles, gyfu*r, Ruies anA Regulation, o-t nitign Guidelines' or any approvals
grantedbytheDesignReviewCommittee,bysuchownerorowners,their
6...rp*i1r;, o, tt.ilt agents, employees or contractors' Reimbursement
Assessment, *"V "fr""U"
made tr ,t. Board for any other purposes forrvhich this
Declaration prouid., for the levying of a Reimbursement Assessment' Finally' and
in addition to the i;regoing, a Reiribursement Assessment may also be levied in
65
Section 10.10
the form of a reasonable fine against an owner for a violation of this Declaration'
the Articles, Bylaws, or the Design Guidelines, but only after the owner(s) to be so
fined has been provid.a *irr, Noiice and Hearing. Reimbursement Assessments
shall be due and pu,uUi. to the Association on tt" due date fixed by the Board in
the notice given t" th. O;er(s) of s,rcf, ReimUursement Assessment' which date
shall be no earlier than thirty (30) days after the giving of such notice'
Assessment o, portffich is not paid when due (or for
which a bad check is issued) shall be deemed delinquent and shall bear interest
fromandaftertheduedateattherateofinterestselbytheBoardfromtimeto
time, which ,nuil ,otl. less than twelve percent (12%) nor more than twenty-one
percent (21%)p.r;;;;;tt'" gou'a -o:v4* u"t"'u late charge (and/or a bad
check charge) thereon.'The Board may also elect to accelerate the installment
obligations of any Regular Alse.lslenlfor *rtich an installment is delinquent' The
delinquent owner;;:i;i." be liable r* ar costs, including attorneys' fees' which
may be incurred d;il[t"ciation in..off.tting a delinquent Assessment' which
collection costs shali b" uaa.a to the delinqueni Assessment. The Board may' but
shall not U. ,.qrirJJto, ,."orA a Notice of betinquent Assessment or charge
against any Lot as to which an Assessmetrt or charge is delinquent' The Notice
shall be executed by an ofhcer of the il*a, and sf,aU set forth the amount of the
unpaid Arsessment'or charge, the namloiiire delinquent Owner and a description
of the Lot.
tully paid.
The Assessment Lien may be foreclosed by the Association,in the same manner as
a mortgage on real pi"p'ttty. fn" e.ssociaiion shall be entitled to purchase the Lot
at foreclosure. The er-ro"iution may alro bring an action ltlaw against the Owner
personally oUtlgateJto pay tt. delinquent Assissment and/or foreclose the lien
against said Owner';-il;in the discretion of the Association' No Owner may
exempt himself or *t**ir" avoid liability for the Assessments provided for
herein by abandonmeniof the Lot against which the Assessments are made'
where Assessments that are due from any owner are more^than ninety (90) days
delinquent, the noarJiay temporarily"usp"nd uny-gr.allAssociation services or
benefits to the d.il;;;o*"t ana-tris rot until all delinquent Assessments are
In any action by the Association to collect Assessments of to foreclose a lien for
unpaid Assessments, the court muy uppoint u recti"' to collect all sums alleged to
be due from the o#", pri"r to oiduring the pendile of ttrt action' The court may
order the receiver r";;y;t sums held 6y *,e receivir,o.,l" Association during
the pending of the u.tion tothe extent ofine Association's Regular Assessments'
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section 10.1 l Statement of Unpaid Assessments. T!. Association shall fumish to an owner or
such owner,s designe. oG-r-no-o u nold.r of a security interest or its designee upon
written request, detiverei ff;;;lly or by facsimile transmittal or by certified
mail, first class postage prlpaid, return receipt requested, to the Association' a
written statement r.tting io'rtf, the amount of unpuia Assessments currently levied
against such owner's Lot, whether delinquent oi not. The statement shall be
furnished within fourteen'(14) days after ieceipt of the requestand is binding on
the Association, the Board, and every owner' If no statement is fumished either
delivered personally "t;;'f;;*ile transmission or by certified mail' first class
postage prepaid, return"t"ipt requested' t9 the inquiring party' then the
Association shall have r;;tr* to assert a lien upon the Lot for unpaid
Assessmentswhichweredueasofthedateoftherequest.
Section ' In the event of any ton liability against the
Association which ir rroffiild completely by insurance' each owner shall
contributeforthepaymentofsuchtiauitityasaSpecialAssessment.The
Association may, however, require a larger contribution from fewer than all
owners under any legal or'ffiuut. priiciples regarding liability for negligent or
willful acts or omissions'
Section 1 1.1
Section 1 1.2
Section 1 1.3
value of the Lot.
ARTICLE XI
EMINENT DOMAIN
Definition of Taking. The term "takinB", &S used in this Article XI' shall mean
condemnation by e#inent domain or rul" under threat of condemnation.
TakingofLots.IfaLotisacquiredbyeminentdomainorpartofaLotis
acquired by eminenidomain leaving the Owner with a remnant which may not
practicallyorlawfullybeusedforany.purposepermitt.d-uvthisDeclaration,the
award must includeJompensation to the O*".i for that Lot and its allocated
interest in and to the Association. upon acquisition, unless the decree otherwise
provides, that Lot's allocated interests are automatically reallocated to the
remaining Lots (as appropriate) in proportion to the respective allocated interests
of those Lots before the taking. Any remnant of a Lot remaining after part of a Lot
is taken is thereafter Association lroperty. otherwise, if part of a Lot is acquired
by eminent domain, the award must compensate the owner for the reduction in
Miscellaneous. The court decree shall be recorded in Garfield county' The
reallocations of allocated interests pursuant to this Article shall be confirmed by an
amendment to the pecia.ation prepared, executed, and recorded by the
Association.
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ARTICLE XII
GENERAL PROVISIONS
Section 12.1 Duration of Declaration. The term of this Declaration shall be perpetual.
Section 12.2 Termination of Common Interest Community. The Common Interest
Community may be terminated only by the agreement of (i) Owners to which at
least eighty percent (80%) of the votes in the Association are allocated, and (ii) the
holders of all First Mortgages on Lots. In the event of such termination, the
provisions of Section 38-33.3-218 of the CCIOA shall apply.
Section 12.3 Amendment of Declaration and Plat. This Declaration and the Plat may be
amended pursuant to Section 38-33.3-217 of the CCIOA. Under the CCIOA, the
Declaration (including the Plat) may be amended by Declarant in certain defined
circumstances, including, without limitation: (a) when the Declarant is exercising
reserved rights under Article VI hereof, (b) for purposes of correcting clerical,
typographical or technical errors, or (c) to comply with the requirements, standards,
or guidelines of recognized secondary mortgage markets, the Department of
Housing and Urban Development, the Federal Housing Administration, the
Veterans Administration, the Federal Home Loan Mortgage Corporation, the
Government National Mortgage Association, or the Federal National Mortgage
Association. The CCIOA also provides that the Declaration may be amended by
the Association in certain defined circumstances. Otherwise, and subject always to
any provisions of this Declaration requiring the consent of Declarant and this
Declaration (including the Plat) may be amended only by the vote or agreement of
Owners to which more than fifty percent (50%) of the votes in the Association are
allocated. Any amendments to Plats that were originally approved by the County
shall also require County approval. No amendment shall be effective to change,
limit, impair, reduce or eliminate any right of Declarant as reserved or otherwise
provided in this Declaration unless such amendment is approved in writing by
Declarant.
Furthermore, Section 38-33.3-217(4) of the CCIOA provides that except to the
extent expressly permified or required by other provisions of the CCIOA (e.g.,
permitted Declarant or Association amendments), no amendment may (i) create or
increase special Declarant rights, (ii) increase the number of Lots, or (iii) change
the boundaries of any Lot or the allocated interests of a Lot in the absence of a vote
or agreement of Owners to which at least sixty-seven percent (67%) of the votes in
the Association are allocated, including sixty-seven percent (67%) of the votes
allocated to Lots not owned by Declarant.
Further, Section 38-33.3-217(4.5) of the CCIOA provides that except to the extent
expressly permitted or required by other provisions of the CCIOA, no amendment
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Section 12.4
may change the uses to which any Lot is restricted in the absence of a vote or
agreement of Owners to which ai least sixty-seven percent (67%) of the votes in
the Association are allocated.
No consent of any mortgage or trust deed holder shall be required to accomplish
any such amendments'
An amendment to this Declaration shall be in the form of a "First (or Second' etc')
Amendment to Declaration of Pinyon Mesa." with the exception of Declarant
amendments, amendments to this beclaration shall be duly executed by the
President ano secretary ortn. Association and Recorded in the office of the clerk
and Recorder orcarfield county. All amendments to this Declaration shall be
indexed in the Grantee's index in the names of the Common Interest Community
and the Association, and in the Grantor's index in the name of each Person
executing the amendment.
Compliance:Enforcement.EveryownerandoccupantofaLotintheCommon
Interest co-**iry1iffilly andfaithfully observe, abide by, comply with and
ferfo.n1 all of the covenants, tonditions and restrictions set forth in this
Declaration, the Articles, Bylaws, the Pinyon Mesa I U'D' Plan' the Design
Guidelines and all upprorurt granted by the Design Review committee, as the
same or any of the;-uy U. inended irom timeio time' In addition to any other
,igto or remedie, it ut*uv be provided to any person undgr the terms and
provisions of this Declaraiion, beclarant (for so long as it holds any of the rights
set forth in Article vI hereof), the Association through its Board, the Design
Review Committee as to matters involving (i) Improvements within the Common
Interest Comm,nity, iiil tt " Design Guidelines, or (ii) any other matters arising
under Article v hereof, or with respect to which the Design Review Committee is
otherwise expressly given enforcement authority under this Declaration' and every
owner (except * bi^", that is delinquent in the payment of Assessments
hereunder) shall have the right, acting alone or together with others having such
,ijtt, to .rfor.., uv *v pro-ceeding at law or in equity, any or all of the covenants,
conditions, restrictions, assessments, charges, liens, servifudes, easements and
other provisions now oi hereafter imposed by this Declaration, the Articles'
Byl#s, the Design Guidelines, and approvals granted by the Design Review
Committee.
Such enforcement rights shall include without limitation the right to bring an
injunctive action for"any form of injunctive relief available under Colorado law
(including specific performance), or an action for damages, or both' Injunctive
i.fi.f *u| include, without limitation, orders to stop wotrk, orders to remove
Improvements constructed in violation hereof, orders to compel performance' and
any other orders appropriate under the circumstances'
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The Board shall have the further right (a) to levy and colleot, after Notice and
Hearing, reasonable fines for the violation of any of the foregoing matters, (b) to
levy and collect a Reimbursement Assessment against any Owner, (c) to enter upon
any Lot within the Common Interest Community, after giving the Owner or
Occupant at least five (5) days written notice of the nature of the violation (unless
an emergency exists, in which case without notice), without liability to the Owner
or Occupant thereof, to enforce or cause compliance with such matters, at the cost
and expense of the Owner or Occupant in violation, and/or (d) where the violation
has continued for more than ninety (90) days after the Board has given the Lot or
Occupant written notice of the violation, the Board may ternporarily cut off any or
all Association services or benefits to the subject Owner or Occupant and his Lot
until the violation is cured.
In any action brought under this Section l2.4,the prevailing party shall be entitled
to an award of its reasonable attomeys' fees and costs inctured in connection
therewith. Failure by any party entitled to do so to exercise in a particular instance
any of the rights available to it under this Section 12.4 shall in no event be deemed
a waiver of the right to do so in any other instance.
Provided always, that no Owner shall have the right to bring an enforcement action
against another Owner or Occupant for a breach by that Owner or Occupant of any
of such matters, or against Declarant, the Association or the Design Review
Committee for a breach by the Declarant, the Association or the Design Review
Committee of any of such matters or for a failure by Declarant, the Association or
the Design Review Committee to enforce compliance with such matters by others,
until the aggrieved Owner has given the offending Owner or Occupant, Declarant,
the Association and/or the Design Review Committee at least thirty (30) days prior
written notice of the aggrieved Owner's complaint and the opportunity to resolve
the problem during that thirty (30) day period.
And further provided, that notwithstanding any law to the contrary, no action shall
be commenced or maintained to enforce the terms of any building restriction
contained in the provisions of this Declaration, the Bylaws, the Articles of
Incorporation, the Pinyon Mesa P.U.D. Plan, or the Design Guidelines, or to
compel the removal of any building or Improvement becatse of the violation of the
terms of any such building restriction, unless the action is commenced within one
(1) year from the date from which the person commencing the action knew or in
the exercise of reasonable diligence should have known of the violation for which
the action is sought to be brought or maintained.
Section 12.5 Rights of First Mortgagees. Upon the filing of a written request therefor with the
Association, the holder of a First Mortgage on any Lot in the Common Interest
Community shall be entitled to:
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(l) Wriuen notice from the Association that the Owner of the subject
Lot is delinquent in the payment of Assessments thereon;
(2) Inspect the books and records of the Association during normal
business hours;
(3) Receive copies of annual Association financial statements;
(4) Receive written notice of meetings of the Association where matters
will be considered that, if approved, will require the consent of First Mortgagees or
some of them; and
(5) Receive written notice of the lapse of any insurance that the
Association is required to maintain under this Declaration.
Section 12.6 Notice. Each Owner, and each First Mortgagee if it so elects, shall register its
mailing address from time to time with the Association. Except as otherwise
specifically provided in this Declaration, any notice permitted or required to be
given hereunder shall be in writing and may be delivered either personally, or by
facsimile transmission, or by mail. Notices delivered personally or sent by
facsimile transmission shall be deemed given on the date so delivered or sent. If
delivery is made by mail, it shall be deemed to have been delivered two (2)
business days after a copy of the same has been posted in the first class U.S. Mail
with adequate postage affixed, addressed to the receiving pafi at the address last
registered by such party with the Association, or in the case of an Owner that has
not provided such an address, to the Lot of that Owner. Notices to the Association
shall be sent to such address as it may from time to time designate in writing to
each Owner.
Section 12.7 No Dedication to Public Use. Except as otherwise expressly provided herein to
the contrary or on the Plat, nothing contained in this Declaration shall be deemed
to be or to constitute a dedication of all or any part of the Common Interest
Community to the public or to any public use.
Section 12.8 Interpretation of Declaration: Conflicts with CCIOA. The provisions of this
Declaration shall be liberally construed to effectuate their purpose of creating a
common and general plan for the development, improvement, enhancement,
protection and enjoyment of the Common Interest CommUnity, and to the extent
possible, shall be construed so as to be consistent with the CCIOA. In the event
that any of the terms and conditions of this Declaration are determined to be
inconsistent with the CCIOA, the CCIOA shall control. Notwithstanding anything
to the contrary in this Declaration, no rights or powers resorved to Declarant
7t
Section 12.9
Section 12.10
Section l2.l I
Section 12.12
hereunder shall exceed the time limitations upon or the permissible extent of suchrights or powers under the CCIOA, and in the event anyof such reserved rights orpowers are determined to be inconsistent with the CCIdA, the related prouirion,
shall not be invalidated but shall be modified to the extent required to comply withthe CCIOA.
Conflict With Plats. In the event of any conflict or inconsistency between theprovisions of this Declaration and any Plat, including the Plat notes thereon, theprovisions of said Plat or plat notes, as the .ur. ,uy-be, shall govern and control
and this Declaration shall automatically be amended, brt onlyio the extent
necessary to conform the conflicting provisions hereof with the provisions of saidPlat or Plat notes.
. Nothing in thisDeclaration shall create, or be deemed to create, any express or impliei covenantsupon or with respect to any real property or interesi theiein not actually annexed tothe common Interest community in the manner provided herein.
violations constitute a Nuisance. Any violation of any provision, covenant,condition, restriction or equitable servitude contained initris Declaration, wheiherby act or omission, is hereby declared to be a nuisance and may be enjoined orabated, whether or not the relief sought is for negative or affirmative action, by anyPerson entitled to enforce the provisions of this Declaration This provision dlesnot limit the remedies that may be available under this Declaration or at law or inequity. Failure of the Association to bring enforcement action to correct anyviolation of this Declaration shall not constitute a waiver of or estop theAssociation from bringing a future or subsequent enforcement action to correct
such violation or any other similar violation.
. No representations
or warranties of any kind, express or implied, have been given or made or shall bedeemed to have been_given or made by beclarant or its alents or employees inconnection with the common Interest community or an/portion theieof or anyImprovements thereon, its or their physical condiiion , roiing,compliance withapplicable laws, fitness for intended use or operation, adequacy or availability ofutilities, or in connection with the subdivision, sale, i-p.ora-"nt, operation,maintenance, cost of maintenance, taxes or regulation tirereof unless and except asshall be specifically set forth in writing herein, in any registration statement orpurchase and sale agreement executed by Declarant,-or ii any closing documentrelated thereto' Furthermore, no such representations or warranties have beengiven or made or shall be deemed to have been given or made by Declarant or itsagents or employees_that the plans presently envisioned for the complete
development of the Common Interist Community can or will be carried out, or that
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any land now owned or hereafter acquired by Declarant is or will be subjected to
this Declaration or that any such land (whether or not it is subjected to this
Declaration) is or will be committed to or developed for a particular (or any) use,
or that if such land is once used for a particular use, such use will continue in
effect, unless and except as shall be specifically set forth in writing herein, in any
registration statement or purchase and sale agreement executed by Declarant, orln
any closing document related thereto.
Section 12.13 Captions. Captions given to various Articles and Sections herein are for
convenience only and are not intended to modiff or affect the meaning of any of
the substantive provisions hereof and shall not be considered in interpieting any of
the provisions hereof.
Section 12.14 Singular Includes Plural. Unless the context requires a contrary construction, as
employed in this Declaration the singular shall include the plural and the plural the
singular; and the masculine, feminine or neuter shail each incrude the masculine,
feminine and neuter.
Section l2' l5 Remedies Cumulative. Each remedy provided under this Declaration is
cumulative and not exclusive.
Section 12.16 Costs and Attorneys' Fees. In any action or proceeding involving the
interpretation or enforcement of any provision of this Declaration,lhe prevailing
party shall be entitled to recover its reasonable attomeys' fees and costs incuneJ in
connection therewith.
Section 12.17 Governing Law: Jurisdiction. The laws of the County and of the State of
Colorado shall govem the interpretation, validity, performance, and enforcement of
this Declaration. Any legal action brought in connection with this Declaration
shall be commenced in the District Court for Eagle County, Colorado, and by
acceptance of a deed to a Lot, each Owner voluntarily submits to the jurisdiction of
such court.
Section 12. l8 Severabili8. Any determination by any court of competent jurisdiction that anyprovision of this Declaration is invalid or unenforceabje shali not affect the valiiity
or enforceability of any of the other provisions hereof. Where any provision of this
Declaration is alleged to be or declared by a court of competent jurisdiction to be
unconscionable, Declarant shall have the right by amendment to this Declaration to
replace such provision with a new provision, as similar thereto as practicable but
which in Declarant's reasonable opinion would be considered not to be
unconscionable.
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Section 12.19 Disctaimer Regard . DECLARANT AND Tfm ASSOCIATIONHEREBY DISCLAIM ANY OBLIGATION RBGARDING THE SECURITYOF ANY PERSONS OR PROPERTY WITHIN THE COMMON INTERESTCOMMUNITY. ANY OWNER OF PROPERTY WITHIN THE COMMONINTEREST COMMUNITY ACKNOWLEDGES THAf OTCUTNANT ANDTHE ASSOCIATION ARE ONLY OBLIGATED TO OOTHOSE ACTSSPECIFICALLY ENUMERATED HEREIN, oR IN THE ARTICLES oFINCORPORATION AND BYLAWS, AND ARE NOT OBLIGATED TO DOANY OTHER ACTS WITH RESPECT TO THE SAT TV ONPROTECTION oF PERSoNS oR pRopERTy wrrrirN rnr couMoNINTEREST COMMUNITY..
IN WITNESS WHEREoF, Declarant has executed this Declaration as of the day and yearfirst above written.
DECLARANT:
PINYON MESA HOLDINGS, LLC, a Colorado
limited liability company
John A. Elmore II, Manager
PINYON MESA DEVELOPMENT, INC., A
Colorado corporation
By
John A. Elmore II, president
Q{otarization is on the Following page)
74
STATE OF COLORADO
COLINTY OF
Pinyon the Declarant.
)
)ss
The foregoing instrument was acknowledged before me this
-
day of
2007, by John A. Elmore II, as Manager of Pinyon Mesa Holdings, LLC andMesa Development, Inc., collectively
Witness my hand and official seal.
My commission expires:
Notary Public
G:\client\Elmore\Decraration of covenants vs 6 to vs 5 REDLINE 0g0307.wpd
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