HomeMy WebLinkAbout1.0 Application MaterialsPINYON MESA
PRELIMINARY PLAN APPLI CATI ON
60.49 Acres
CountY Road 114,
Garfield CountY, Colorado
JUNE 2006
PrePared bY:
SCHMUESER GORDON MEYER
EHGINEERS SURVEYORSs
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PRELIMINARY PIAIV AP PLI CATI ON
PINYON MESA
A RESUBDIVISION OF THE LO$rER BENCH
LOS A]VIIGOS RANCH PLANNED UNIT DEVELOPMENT-
GARFIELD COUNTY, COLORADO
JUNE 2006
. PrePared bY
SCHMUESER GORDON MEYER, INC.
118 West 6'h Street, Suite 200
Glenwood SPrings CO 81601
970.945.7004
111981\O'1502\F'Lower Bench\Ol Prefiminary Plan\Prel Plan Text\o1-Tille Page dtr
o
PRELIMINARY PLAN APPLICATION
PINYON MESA
A RESUBDIVISION OF THE LOWER BENCH
LOS AMIGOS RANCH PLANNED UNIT DEVELOPMENT
TABLE OF CONTENIS
SUBDIVISION APPLICATION FORM
INTRODUCTION
SECTION 4:50 PRELIMINARY PLAN MAP
(A) NAME OF PROPOSED SUBDlVlsloN
(B) PRELIMINARY PLAN MAP
(c) PROPERTY BOUNDARY
(D)NAMESoFPREPARERS,MINERALoWNERS,LESSEES
(E) VlclNlTY MAP
(F) ADJOIN]NG OWNERS
(G) STREET AND LOT LAYOUT
(H) PROPOSED EASEMENTS
(l) STANDARD LOT SETBACKS
(J) LAND USE BREAKDOWN
(K) EXISTING CONTOURS
(L) coMMON OPEN SPACE
(M) PUBLIC FACILITIES
(N) STREET GRADES AND CURVATURE
(o) EXISTING EASEMENTS
SECTION 4:60 ADDITIONAL TNFORMATION
(A) PROTECTIVE COVENANTS
(B) PHASING PLAN
(c) ACCESS
(D) OFF-STREET PARKING
(E) GEOLOGIC HAZARDS
(F) RADIATIoN HAZARDo
l:i1981\01502\F'Lower Benchiol Prelimmary Plan\Prel Plan Text\oz-Table of Contents doc
(G) TIrLE COMMITMENT
(H) SECTION BREAKDOWN WORKSHEET
SECTION 4:70 S UPPLEM ENTAL I NFO ON
(A) GEOLOGY
(B) SOILS
(C) VEGETATION, WEED MANAGEMENT PLAN
(D) WILDLIFE
PP ALI MA RAI
S lON 4:90 SUPPLE NTAL IN R N - UTIL ES
4:91 WATER SUPPLY PLAN
4:92 WASTEWATER DISPOSAL PLAN
4:94 OFF-SITE ROAD ]MPACTS
SEGTTON 4:08.05 ZONING REGULATION
4
o (1) STATEMENT OF OWNERSHIP
(2) (a-g) PUD PLAN
(2) (h) zoNlNG REGULATIONS
(2) (i) PHASING PLAN
(3) REGIONAL LOCATION MAP
(4) SITE PLAN
(5) slTE TOPOGRAPHIC MAP
(6) LEGAL DESCRIPTION
(7) WRITTEN STATEMENTS
(a) OBJECTIVES OF THE PUD
(b) DEVELOPMENT SCHEDULE
(c) PROTECTIVE COVENANTS
(d) ADJOINING PROPERTY OWNERS
(E) WATER, SEWER, DRAINAGE, NATURAL HAZARDS
(O LEGAL ACCESS
(g) ENVIRONMENTAL IMPACTS
l:\1g81\O'1502\F-Lower Bench\o1 Preliminary Plan\Pr€l Plan Text\oz'Table ol Contents'doc
EXHIBIT A
Water TaP Assignment and Water Delivery Agreement
EXHIBIT B
Water Rights Documentation
EXHIBIT C
Ranch Pud
Resolution No. 2006-16 -Text Amendment To The Los Amigos
Ranch Planned Unit DeveloPment
Sewer TaP Assignment Agreement
EXHIBIT D
Resolution No. 96-34 - Amendment To The Los Amigos Ranch
PlannedUnitDevelopmentZoneText,PudPlanandDevelopment
Plan
Letter From Garfield county Building And Planning Regarding
Approval Of e-["qu.st FoiText Amindment To The Los Amigos
GARFIELD COUNTY
Building & Planning DePartment
108 8th Street, Suite 201
Glenwood Springs, Colorado 81601
Telephone: 97 0.945.8212 Facsimile
www. garfield-countY.com
970.945.3470
Subdivision Application Form
GENERAL INFORMATION
(To be completed by the applicant.)
) Subdivision Name:Pinyon Mesa, a portion of Los'Amigos Ranch P.U.D
D Type of Subdivision (check one of the following types):
Sketch Plan
-
Preliminary Plan XX Final Plat
) Name of Propertv Owner (Aoplicant):Elk Mesa Prooerties.LLC
D Address 2929 County Road 114 Telephone:970-945-6399
D City:Glenwood Springs state: co Zip code:81601 P4;'
> Name of owner's Representative. if anv (Attornev. Planner, etc)'
John Elmore ll
) Address:253 Silverlode Drive Telephone:970-920-3033
F City:Aspen State: Co Zip Code: 81611 SPPX'
) Name of Enqineer:
F Address:
) City:Glenwood
F Name of Survevor:
) Address Schmueser Gordon Meyer, 118 West 6th St Te
F City:Glenwood State: Co Zip Code:8i991-- FAX:970-945-5948
) Name of Planner: Noble Design Studio
) Address:19351 HWY 82 Teleplbne:970-963-7027
D City:Carbondale State: Co -- Zip Code: 81623 p4;' 970-936-9833
Schmueser Gordon Meyer, 118 W. 6th St.Telephone:970-945-1004
State: Co Zip Code: 81601 5pg4'970-945-5948
lephone:970-945-1004
L :\forms\GARCO\subd. aPPlication
May 2005
GENERAL INFORMATION continued...
D Location of Property: Section 7 & I Township 7 South
F Practical Location / Address of Property:of Countv
Range-99Wes!-
114.0.6 mile
bove the intersection County Road 114 and HWY 82
D Current Size of Property to be Subdivided (in acres):60.49 acres
F Number of Tracts / Lots Created within the Proposed Subdivision:82
) Property Current Land Use Designation:
o Property's Current Zone District High Density Residential
o Comprehensive Plan Map Designation:
Proposed UtilitY Service:
F Proposed Water Source:Elk Springs Homeowner's Assoc. by Red Canyon Water Company
) Proposed Method of Sewage Disposal:Spring Valley Sanitation District
D Proposed Public Access VIA:County Road 114
D Easements:Utility:General UtilitY Easements as shown on Preliminary Plan
Ditch: N/4
D Total Development Area (fill in the appropriate boxes below):
) Base Fee: Sketch Plan - $325.00; Prelim Plan - $675'00; Final Plat - $200 paid on
) Plat Review Fee of $50 paid on --------
23.2080
23.20
Road 6.83
30.46
37.29
lf Staff determines that all the required information has been submitted' a letter will be sent
to the applicant indicating the application ni. been deemed "technically complete'" lt is at
this point Staff will atso iniicate *i',en the application.has been scheduled to be presented to
the BOCC for signature. (This is not a proti" hearing or meeting and therefore does not
require public notice.)
lf staff determines that all the required information has not been submitted' a letter will be
sent to the applicani indicating tne appfication doelnot comply with the submittal
requirements and tn"'Ltot" has
-determiilo tne application to be "technically !!@@!9''
The letter will also outrine tne applications deficiencies so that the applicant knows what
additional information needs to be submitted'
once the application has been deemed technically complete and a date has been
established as to wnen the BOCC will review the Finali'tat, siatr will review the application /
Final ptat in terms of adequacy to determine if allthe submittal information satisfies the Final
platrequirementsaswellastheresponsestotheconditionsofapproval.Duringthisreview,
statf will forward tne rinat plat the county surveyor for review and a signature' ln the event
there are additional qr".iioni ot clarification issles to be addressed, the County Surveyor
will generally contact-the appticant to nave-tne plat adjusted as necessary' once' Staff has
completed tne review anJlfi t"qrired information hasbeen submitted to the satisfaction of
the planning Department and thi County Sr*"Vot has signed the Final Plat in Mylar form' it
will be scheduled "i tn" next BOCC meeting^io be placed.on the consent agenda with a
i"qr"it1" authorize the Chairman of the BOCC to sign the plat'
once the Final Plat is signed, it is then recorded by the county clerk in the Glerk and
Recorder's Office to., f6" oi $tt for the first sheet and $10 for each additional sheet
thereafter. This fee shalt be paid by tne affticant.-rfiq.a.c!of recording the signed Final Plat
iepresents the completion of the Garfield County Subdivision Process'
Please refer to the specific language in the Final Plat portion (s.ection 5:00) of the
subdivision Regurations for specific timerines and additionar responsibirities required of the
applicant to complete the Final Plat process'
Please Note:This information Presented above is to be used as a general guide
for an aPPlicant considering a subdivis ion in Garfield County. lt is highly
recommended that an apPlicant either Pu rchase the Garfield CountY Zoning
Resolution and Subdivision Regulations or access them on'line at:
uild
in order to ascertain allthe necessary rer
including Sketch Plan Review, Prelimina
quirements for
ry Plan Review
each of the three stePs
, and Final Plat Review.
I have read the statements above and have provided the required attached information which is
of myandto
ofa nVowner)
Last 1112112002
6
Date
GARFIELD COI]NTY BUILDING AND PLAI\I\ING DEPARTMENT
AGREEMENT FOR PAYII'IENT FORM
(Shall be submtrted wilh applicotion)
GARFIELD COLJNTY ( hereinafter COIINTY) and Jqhr Elmqre--ll
(hereinafter APPLICANT) aggress as follows:
1. AppLICANT has submitted to COUNTY an application for-Pinon Mesa A-Re-subdivision-gf
the I-ower Bench. Elk ss P.U.D (hereinafter, THE PROJECT).
2. ApPLICANT trnderstands and aggress that Garfield County Resolution No, 98-09, as amended,
establishes a fee schedule for each type ofsubdivision or land use review applications, and the guideline for
the administration of the fee schedule.
3. APPLICANT and COUNTY agree that because of the size, nature or scope of the proposed
project, it is not possible at this time to ascertain the full extent of the costs involved in processing the
uppti"uiio". epillCru.ff agrees to make payment of the Base Fee, established for the PROJECT, and to
tt "r..to permit additional costs to be billed to APPLICANT. APPLICANT agrees to make additional
payments upon notilication by the County when they are necessary as costs are incurred-
4. The Base Fee shall be in addition to and exclusive of any cost for publication or cost of
consulting seryice determined necessary by the Board of County Commissioners for the consideration of an
applicatio:n or additional COUNTY staff time or expense not covered by the Base Fee. If actual recorded
"lsts "x""ed
the initial Base Fee, APPLICANT shall pay additional billings to COUNTY to reimburse the
COUNTy for the processing of the PROJECT mentioned above. APPLICANT acknowledges that all
billing shall be paid prior to the final consideration by the COUNTY of any land use permits, zoning
amendment, or subdivision Plan.
APPLICAI\TT
26th,2006
John Elmore ll
Date:
Print Name
Mailing Address:
253 Silverlode Drive
Aspen, CO 8161 1
HrgStrorSOzU-Lr*, Bench\o1 Prelidnary Plan\Prel Plan Texl\o4-AGREEMENT FOR PAYMENT.doc
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o Introduction
Pinyon Mesa is a portion of the Los Amigos Ranch PUD which was
originally approved by Garfield county under Resolution No. 81-358. The
pU6 wai subsequently amended under Resolution No. 96-34, A
Resotution concerning approvat of the Los Amigos Ranch Paftnership
apptiation for amendment to the Los Amigo Ranch Planned Unit
Oevetopment Zone Text, PUD Plan and Development Plan.
The Amended PUD Plan contemplated three phases of development,
including approximately 170 single family home-sites, some large'lot
resideniial iots and a limiteO amount of neighborhood commercial within
the first two phases. This parcel, which has been referred to variously as
the lower valiey or the lower bench, was designated as Phase Three'
The subject parcel lies adjacent to County Road 114 on an upland bench
approximateiy 7 miles southeast of Glenwood Springs. The terrain slopes
from east to west at grades up to ten percent. The bench is defined by a
steep river terrace escarpment on the west side and transitions to hilly
terrain on the north and south. Two drainages cross the propefi from
the north and the east, and merge into a narrow, steep sided gully on the
western part of the PropertY.
Vegetation on the site consists primarily of sagebrush, with scattered
jun-iper and pinyon trees in the ftatter areas and more dense tree cover in
ihe drainages. The bench area has been cleared of sagebrush and used
for grazing or hay at some point in the past, as evidenced by the
presence of crested wheat grass in the flatter areas'
During development of earlier phases of Los Amigos Ranch PUP, water
stora{e and sewer treatment facilities with capacities designed to serve
this dLvelopment were constructed. A sewer lift station and force main
built on this property will convey wastewater from this site to the Spring
Valley Wastewaier Treatment Ptant. A water main was extended to this
propefi during construction for a previous phase of Los Amigos Ranch.
This property was zoned High Density Single Family with 80 single family
lots on a OO.+g acre tract. Twenty-five percent of the propefty is
required to be reserued as open space.
The proposal includes development of 80 single family lots with a
minimum lot size of 10,000 square feet. Over 49 percent of the propefty
is retained as open space. The attached application is consistent with the
High Density Zoning designation and the over all Los Amigos Ranch PUD.
o
Section 4:5O(A)
NAME OF PROPOSED SUBDIVISION
Pinyon Mesa,
A portion of the
Los Amigos Ranch P.U.D.
Situated in Section 7 & 8,
T.75., R.88 W. of the 6th p.M.
County of Garfield, State of Colorado
Section 4:5O(B. C)
See Preliminary Plan sheets and Civil Design Sheets
Section 4:50(D)
NAMES OF OWNERS, PREPARERS
Owner
Elk Mesa Properties, LLC
2929 CR 114
Glenwood Springs, CO 81601
970-945-6399
Applicant
John Elmore II
253 Silverlode Drive
Aspen, CO 81611
970-920-3033
Planner
Noble Design Studio
19351 Highway 82
Carbondale, CO 81623
970-963-7027
Engineer
Schmueser Gordon Meyer, Inc.
118 W. 6th Street, Suite 200
Glenwood Springs, CO 81601
970-945- 1004
Section a:5O(D)
MINERAL RIGHTS OWNERS 'ESSEE
There are no severed mineral rights on this property
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VICINITY MAP
S4ALE 1"=2OOO'
e SCHMUESER GORDON MEYER, INC
I I A W. 6TH STREET, SurrE 2OO
Guexwooo SPRINGS, CoLoRADo e I 60 Ire70l gas- loo4 FAX (970) 945-5944
ASPEN, CoLoRADo (9701 9?567?7
SECTION a:50(E)
WCINITY MAP
,b lt&.JK lru-vrctglyot502F** O5-08-06 brBurrE, CO (97O) 349-5355=tJ*T.Fff- r= !oSP9$- L- "**
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Section a:5O(F)
ADJOINING PROPERTY OWNERS
2393-07L-01-001
Choice Ventures, LLC
8526 County Road 301
Parachute, CO 81635
2393-07L-00-002
Garfield County
108 8th St., Ste 213
Glenwood Springs, CO 81601
2393-07L-01-013
Van Rand Park Association
Attn: Dave Dodson
P.O. Box 248
Glenwood Springs, CO 81692
2393-07L-01-003
Red Canyon Holding ComPanY, LLC
854 Access Road
Rifle, CO 8L647
2393-07L-00-002
Ronald Perau
6501 County Road 214
New Castle, CO 8L647
2393-Lt2-00-951
Bureau of Land Management
P.O. Box 1009
Glenwood Springs, CO 81602
2393-082-04-01 1
Elk Springs, LLC
141 W. Jackson, Blvd, Ste 1720
Chicago, IL 60604
2393-064-00-009
Elk Springs, LLC
141 W. Jackson Blvd., Ste 1720
Chicago, IL 60604
(See Preliminary Plan Sheet 1 for graphic depiction of
adjoining property lines.)
Section 4:50(G, H, I'l
The development proposed under this Preliminary Plan application
includes 80 single'family lots and two open space tracts with
associated roadi, drainage and utility easements as depicted on
preliminary plan'slreets I tnru 3. Proposed setbacks are 25 foot front
and rear and 10 foot side as indicated by note on Preliminary Plan
Sheet 1.
Section :50(J)
LAND USE BREAKDOWN
Existing Zoning
High DensitY Residential
Total Number of Lots Prooosed
Single FamilY Residential 80 Lots
Open Space 2 Lots
23.20 acres
3L.2L acres
Total DeveloPment Area
Total Number of Dwelling Units Proposed
Gross Density Units/Acre Total Development Area
Gross Density Units/Acre Residential Zoning Area
Total Area of Non-Residential Floor Space
Total Number of Dwelling Units Per Structure
60.49 acres
80 units
t.32/acre
3.45lacre
N/A
N/A
Section a:5O(K)
Existinq Contours
Existing contours are based on aerial photography done by
Aero-metric, April 2006. Contour interval is one foot'
See Preliminary Plan Sheets 2 and 3
Section 4:50(L & M)
Open Soace, Public Facilities
when Los Amigos Ranch Planned Unit Development was approved' one
of the conditions of approval was that at least twenty-five percent of
the overall area be retained as open sp.aT: -The subject parcel
contains a total of 60.49 acres, of *nitn 30'21 acres, or 49'94 percent
have been retained as open space under this proposal'
AnopenSpacebufferofsixtyfeetormorehasbeenmaintained
between counti noio-r14 #d tne-resioentiar rots. The tree covered
drainages and fn" ii""per slopei will remain largely undisturbed' An
existing sewer tift- station within the open space lands will provide
sewer service to tnis developm".t,-..0 timiteo underground utility and
drainage facilities will be constructed. Provisions in the zone district
regulations for the open space *itt utto* the homeowner's association
to construct a smalt community center, picnic facilities or recreation
iu.iriti"t within the open space if they so choose'
while no formal park facilities are planne!.[or this development' the
openspaceareaswithinthepropertyanotheadjoiningBureauofLand
Management propefty will provide a6undant opportunities for active
recreation, "njoilnlnt
or wildlife and quiet enjoyment of nature'
All of the open space within the development will be dedicated to and
managed ov tne-nnvon MeT Homeowner's Association, subject to
necessary easements for utilities and drainage'
DuringthereviewprocessoftheoriginalP.U.D.theBureauofLand
Management eipressed concern over the use of off road vehicles on
the adjoining BiM property. trtumerous existing trails on this propefty
bear witness to tn.i Olmage that such vehicles can cause to this fragile
landscape. fntiOer to protect both this property and the adjoining
public lands, 11otoii="d'vehicles of all kinds will be prohibited on the
open space tanos within this property. An existing fence along the
southernboundaryofthisproperty,separatingthislandfromthe
aOioining BLM property will remain in place'
TheoriginalLosAmigosRanchP.U.D.includedaschoolsitethatwas
platted u, purt of thi previous phase gj tn.at development. Under the
terms of the p.u.o. approval, that dedication satisfied the require-
ments for school land dedication for the entire P'U'D' No further land
dedications or cash in lieu are required for this phase of thet
develoPment.
a:5O(N)
street Grades and Road centerline Data
The street grades and road centerline data are shown on the road plan
and profile sheets within the application. rh" primary entry road,
pinyon Mesa oriu., his been d'esigned with maximum grades of 8o/o
under the criteria-estabrished for 5 minor coilector road, with grades of
2o/o dtits intersection with County Road lt4'. Cliffrose Way and
Juniper Hill Lane have been designed uslg the criteria for secondary
access roads which allow grades-up to 10% in order to conform to the
existing terrain. The othei secondary access roads have grades of less
than 8olo.
PinyonMesaDrivewillbeconstructedwithtwotwelve.footwidetravel
lanes and thirty-four inch mountable curb and gutter on each side'
Theotherroadswillbeconstructedusingeleven-footwidetravel|anes
unO tnitty-four inch mountable curb and gutter'
The northerly end of Paintbrush way will be constructed as an
emergency access road. A twenty ioot wide gravel road, with a gated
entry,willprovideasecondaryaccessincaseofemergency.In
addition, pull-outs are provided at 600 foot intervals along the cul-de-
sacs. These will provide both emergency equipment and residents the
ability to turn around if the road were to be blocked'
The road centerline radii are within the criteria established for minor
collectors and secondary access roads. Pinyon Mesa Drive has a
,inir.nu, radius of 400 feet, while the secondary roads have a
minimum raOiui of 150 feet, both well above the minimum radius
required for these road classifications'
a:5O(O)
Existino Easements
There are three existing power line easements, all owned by Holy Cross
Energy, that cross the iubject property. These easements are graphically
[pi.irdnied on preliminary etan sheets 2 and 3. one power line lies near
the northwest corner of the property and serves the Garfield county shop'
one serve, un "riiting lift station operated by Spring Valley Sanitation
District. The third lin6 is a three phur" overhead power line that crosses the
propefty from west to east. This line will be relocated underground as it
crosses tne proplrty, and appropriate new easements will be granted' There
is not an existing recorded easement for this line'
SECTION 4:60 (A)
ADDITIONAL INFORMATION
PROTECT]VE COVENANTS
DBcr,aRarIoN or RrsrnrcTnm C orznNaxrs
T1{IS DECLARAIION OF RESTRICTIVE COYENAJ\ITS ("Declaration") is made this
RrclTArs
A. Declaraot is the ownel "l t.l certain real property which is more particularlydescribed on Exhibit A attached hereto aod incorporated. tiein by this reference (the .T-owerVallef).
day of
limited Ii ability compa.Dy ( Declarant").
200 , by ELK MESA pR OPERTJES, LLC, a Colorado
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B'
- Il"hY-"Ivalleycontains+sroximately6OacresandcomprisesaportionofthelosAmigos Rausl planned unit Development, 6a*eta c;imqr, colorado ftrr" erro't. As part ofthePIJD,theLorryprvalleyhasplaanedunitdeveloirmentrorriolupprovaroitne
a_evelopmertofeighty(80) single family lots. Declarant is iu entity ielated to the oivner of thi ,"*.ioa." of the pUD. .
i;. c' Tte manner in which t\ Ilwer valley wiu be'developed wiII directly affect theI " remaioderofthePllDbecauseofitsproximitytothePliDanditslocation'alongtheonlypublicroad
to the Pr'rD' Declarant intends therlfore tnat tue r,owe yalley b" d;6; in a manner whichprotects and enhaucesthe value, a.ti*uiury*a atactiveness ofther.owervall.eywhil.eatthqsam6time minimizing the c:eation of certain foreseeable uir"rr" i-pacts upon the rcmaindef ofthe pI;6.
i -' Dpcr,anarloN oI,RESTRICTn/E Cowlarvrs ;
Now' TIrE-RE-FoRE, the Declarant hereby declares thpt all of &e property defined anddescribed herein as the Lower Valley shau hereafteiu" i"id, .;;ilti"io#"* or eoc'mbered,used' occupie( and improved subjectlo the folowing limitatioirs,,;ft;fi;*, co.nditions,.andcovenants' all of which are declared and agreed'to ue in-fi:t'therenf lt'o" pr* of develo.pment ofthe Lower va1ley and the remainder ofttre P-IJD ,"a *"
"rt"ulirhqd f";A;rffire of enhaucing andffiffi, *e valuc, desirability and attabtiveness ofthc Lo-", V.ur"y -t ,rri ruq, and everypart ....
' l' {] lT -*T"h:"t be subdivided and.crlated 1.'Lots') aom the Lowervalby shalrbp use4 Isrown and flescribed onlv.as y$ foisirqi; i;rily ;id"d.i;"rp;;;. onry one singlefamily residencc may be erected, altered., flac"d, ;:t; ;;tted to remain on auy such Lot. No suchLot shtill be used for business or commerci"l;',rrp";;o,99nt that aay such Lot.and/or srucf.oei constn'rcted thereon may be u6ed fqr uome occup"t"*, irri"r, J-d#;;occupation.by the' resident of said d-sre[ing unit conducted t"t ]r;'thi;-trr; resideatial rmit ihich does not entail rhe .i cmployacnt ofthird PcrsoDs on the premises and aoes'nJ entail the aaivery of goods or seryices
.,.
: ,o customers unon tfe premises.
' '2' No mobile home, tent' or shackshall be placed,crected orbepermitted toremain on .i ary Lot, nor shall any structure of temporary characterie used at aay'time as a residence.
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3' In order to protect against the degradation of air quality which occ15s as a result ofthe use of interior and erterior fire places'and otler wood burning a"vices, ;;;" minimize dange,rfrom wildfue which results to- "it"rior buming, *u, r"ril*i"g restictions are imposed:
3. I No open heA i"]i1,t"i T"*:*, or ary wood burningsroves of any kind,either interior or exterior, shall be allowed *iouir* about aoy dwelting unjt constnrcted onanylot withiD the Ircwer Valley.
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3'2 No exterior buryng of any kind, includiag without limitation, any woodpioiuct, const,ction material'l"r i *"#J, ;;;fi .r, oi-other aarnmaut" material, shaube allowed anyy'r'here vfithin the Lorver v"ir"yi p..vided, however, that.a fire within acontained barbeque unit while attended
"oa io urJ ar.coo,king purposes sriat.6e allowed.No fireworks which explode or leave trr" gp*d-"h"ll be ignited or us6d anlarhere withint' the Lower Valley. i
' 3'3 AII dwellllng units lvjrhin the Lower valley'shall be allowed an unres&ictedar:mber cif natual gas bi:ming fireplaies ,, "orii*al,
4' All exterior Iichting installed or riaaintained on aay dwelling r:nit wirhin the rlwerY alley' or elsewbere upon any Lot, comm on ar€a, easement" or right-of-way of any tpe within theLowerYalley' shall be located and instailed ro trr.itu" r-igat s}:rce illuminates only tne grouad plane' and so that thc Iight source is not visible aom *y r"."iT" o? ortrr" sulject Lot In addition to tleforegoing restrictibn' aay'design review cornmittee *rt.u may be "rt"luJ"a to regulate'improvements to Lts within'thi Lower vau"r;"u [;;;;" a.thority to establish additionatmdards for exterior lighting provided that trr"y'"r""tp"L-oie restrictive o* tlor" ,a forrh herei!,Yncluding without limitation, resrictions fb, il;;;*"T,
5' No roof or anrmofprojection on any dwelling unit within the Lower vall", ** *construct€d out of any material ttrat is shiny or r"ti".tir".' An_y reflective roofprojection sball be' painted' Non-weathering metal roofs are piohibitea u,r, -oa roofs that are designed toland wilt, ' wearher and/or nlr are arrowed. skytjglrt" -.yilil; "rrt ifLrkrt il;; fla4ngo irr"a toi, Iitfff"'ll",r".1f,fffi:::ffi.,1[1r,,:-;":l'"ffi*,,h"rrh",,,'up;*io,"!,than3.s/rz
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' 6' No boar' caIDPer (on or g-trsynnoting vehicles),.kailer, tabtoa tnrck, indusfrial or: commercial vehicre (both cabs or ua,ers), irr,"d hri.G; g*, *o,or.y"r,t disabre4 jrrnh orI abandoned vehicles, -9t", lo*",--otite t oro., l"*".i-""a.r.ff"I",- or auy other vehiclg,theprimary purpose of which is recreational;lnortini li "."r-"*id.r::, shau bepa*ed or.stored in,on' or about any Lot or steet udthin ther;wer yr*r, .*ept within u re..tr." which has beenconstructed upon the Lcit For the puPoses 6f thi.. ievsaant, any 3/4-tonor smaller vehicle,com:nonly known'as a pickr:p t,ck,
"uuit ,ot b; d;; """o**"."ial vehicle or toi:ck.
Declodion of R*trictive Coy*totts
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O a rot ol,rne, :,^,.:;1xi#iH::'r'"fiHHxi HXffi:J.l,Lfl,:,#Tl:, l#:iffi:.--,' impervious sruface
8' j*:"pt-fol-the existinc ovyr{ead utility iine whichprovides service to the lift stationowned by the spring valley Sanitation Distict, or a rbconstuuction or relocation of such existingIins, n6 aboveground utility lines or facifities ofany q"pe (except merers: ;;;.;; service pedesthls andottrer surface iristallations Decessaryto maintain oi op.*,r appropriate underground facilities) shallbe erected orinstalled v/irhin the iower v"u.y, *iJtuo rp* Lots, commo-o "r"*, easementg orrigbts-of-way of any tlpe, either by a utajry company, DecJarant nereunaei aL* o1^" or any otherperson or eartity, and all utilty h._t_g! fagilities (including, but not timitra to, water, sewer, gas,. electicity, telephone, aird cabre T.v-) sharl'be buded underground.
' 9. This Declaration shall be perpetual and. shatt n:n with the Lower Valley and the pUDand shall !s $inding in perpetuiry upon the Seclarant
"na au p""sons clai*iog uy, tbrough or,nd,erDeclarant' Declaran! aoy homeowners associatior,
"o*pris"a ofthe owDers &r"a p-pertywithin'the Lower valley, or any individual Lot oumer within thi Lowcr valiey shall have thc authority, butnot the obligation' to eoforce this Deelaration in aa action at law or ia equity agains auy person orPcrsons violating or attempting to violate any ofth.e piovisions ofthis Declara6-oru eitherto restuajnviolation of this Declaration or to recover ar*"gk, or uia. In addition, u"""r." of the potentialadverse impact uPon the rights of ounaers orproplrty*ittrin tue remainder orureiuo which wouldresult fitim a violation of this Declaration, t&*:lrri"gr Ho-"ovrners asro"iatioq loc. or anyirdividual Iot oumer within the remainder of the PIID,
"Tar have the risnt but;ot tbie obligatiop,to similarly enforce the provisions of this Deciaratioi. l" *v actiou or proceeding rrndor tlisDeclaration, the prevailing parfy shatl be entitled i"-;; its costs aird expenses in connecrion
10' If anyprovision of this D::lTd* or.th9 appJication 9f *y such provisiontb.auypersotr or circ,mstance shall beheld invaiid,theremui"aottis o"craratiii;;1" applicatiotofsuch provisious to persons or circumstan""l otryi [* ,rr; * to which it is berd invali4 shallreneain in full force and effect and shall not be
"r"","a-uy loy such determination of invalidity.
IN MTNEss WHEREoF, the Deqlarant has executed this Declaration the diy aad year first. qtrittED abovg. s.e vwrq4*_.. _ou,,
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DE-CL[R.4-I.ITt
ELK MESA PROPERTIES, LLC;
aColorado limited liability company
Printed Nam;
Tfc.
Declodion of Restricttve Covenofi
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DECLARATION
OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
PINYON MESA
TABLE OF CONTENTS
ll
2.
3
4.
PINYON MESA.
DECLARJATION OF COVENANTS. CONDITIONS AND RESTRICTIONS
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
pINYON MESA (the"Declaration"), effectivethis-day of
-,
2006, is made and entered into
by pinyon Mesa Development, LLC, a Colorado limited liability company, and Pinyon Mesa
Investments,LLC,a Col,orado limited liability company (collectively referred to herein as the
"Declarant").
RECITALS
Declarant is the owner of that certain real property described on Exhibit A, attached hereto
and incorporated herein (hereinafter "Pinyon Mesa" or "Property" or "Common Interest
Community").
Pinyon Mesa has planned unit development zoning approval by the County of Garfield 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 the functions set forth herein and to own, lease, hold, operate, care for and
manage certain property for the common benefit of Owners and Occupants of Lots within
Pinyon Mesa, and of any other persons acquiring an interest in Pinyon Mesa.
Declarant desires to establish covenants, conditions and restrictions upon the Pinyon Mesa
Common Interest Community and certain mutually beneficial restrictions and limitations
with respect to the proper use, occupancy, improvements and enjoyment thereof, all for the
prrpor"i of enhancing and protecting the value, desirability and atffactiveness of Pinyon
Meia anO enhancing the quality of life within the Common Interest Community.
Declarant desires and intends that the Owners, Mortgagees, Occupants and all otherPersons
hereafter acquiring interest in Pinyon Mesa shall at all times enjoy the benefits of, and shall
hold their interest subject to, the covenants, conditions, restrictions, assessments, charges,
servitudes, liens, reservations and easements contained in this Declaration, as it may be
amended from time to time.
The Common Interest Community shall also be subject to covenants, conditions and
restrictions of that certain Declaration ("Governing Declaration") recorded
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a t
Reception No. in the real property records of Garfield County, Colorado, and the
termi and conditions of Resolution No. 96-34 (the "Resolution") recorded June 18, 1996 al
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6.
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Reception No. 494584 in the real property records of Garfield County, Colorado. In the
event of any conflict between the covenants, conditions, restrictions and terms of this
Declaration and the Governing Declaration and/or Resolution, the Governing Declaration
and/or Resolution shall control. In the event of any conflict between the covenants,
conditions, restrictions and terms of the Governing Declaration and the Resolution, the
Resolution shall control.
ARTICLE I
DECLARATION
NOW, THEREFORE, for the purposes set forth above and herein, Declarant, for itself and
its successors and assigns, hereby declares that Pinyon Mesa, and each part thereof, sirall be owned,
held, transferred, conveyed, sold, leased, rented, hypothecated, encumbered, used, occupied,
improved, altered, maintained and enjoyed subject to the covenants, conditions, restrictions,
assessments, charges, servitudes, liens, reservations, exceptions, easements, privileges, rights and
other provisions hereinafter set forth, for the duration hereof, all of which are declare-d to be part of,pursuant to, and in furtherance of a common and general plan of development, improvement,
enhancement, use, occupancy and enjoyment ofthe Common Interest Community, and all of which
shall run with the land and be binding upon and inure to the benefit of (i) the Common Interest
Community and every part thereof, (ii) Declarant and its successors and assigns, (iii) the Association
and its successors and assigns, (iv) every Member of the Association, and (vj all Owners, Occupants
and other Persons having or acquiring any right, title or interest in or to the Common Interest'
Community or any part thereof, or any Improvement thereon, and their respective heirs, personal
representatives, successors and assigns. Provided always, that to the extent this Declaration irovidesthat Declarant shall not be bound by or is exempt from the application of certain covenants,
conditions and restrictions contained herein, Declarant shall not be considered subject to such
covenants, conditions or restrictions. This Declaration shall be recorded in CarfiLld County,
Colorado, and shall be indexed in the Grantee's Index in the name of pinyon Mesa and the
Association and in the Grantor's Index in the name of Pinyon Mesa Investrnents, LLC and pinyon
Mesa Development, LLC.
ARTICLE II
DEFINITIONS
The following terms have the following meaning when used herein unless the context
otherwise requires:
Section 2.1 Accessory Dwelling Unit. "Accessory Dwelling Unit" means any separately
occupiable apartment (containing 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
Section 2.8
l$t. "Act" shall mean the Colorado Common Interest Ownership Act as provided
in C.n.S. Section 38-33.3-101, et seq., as the same may be amended from time to
time.
Allocated Interest. "Allocated Interest" means the Common Expense liability and
the votes in the Association allocated to each Lot, which interest are allocated as
follows:
(l) The Common Expense liability for each Lot is calculated on the basis of a
fraction, the numirator of which is one (l) and the denominator of which is
the total number of Lots in the Common Interest Community as of the date
of the calculation.
(2) One (l) vote in the Association is allocated to each Lot in the Common
Interest CommunitY.
ArticleS of Incorporation. "Articles of Incorporation" or "Articles" means the
Articles oflncorporation ofPinyon Mesa Homeowners Association,Inc, whichhave
or will be filed with the office of the Secretary of State of the State of Colorado, as
the same may be amended from time to time.
AsseSsment. "Assessment" means a Regular Assessment, Special Assessment or
Reimbursement Assessment.
Association. "Association" shall mean and refer to the Pinyon Mesa Homeowners
Association, Inc., a Colorado nonprofit corporation, its successors and/or assigns'
Association Propertv. "Association ProperQ/" means, to the extent ofthe
Association's interesi therein: (a) all real and personal property, including
Improvements, now or hereafter owned or leased by the Association; (b) all Common
Areas now or hereafter owned, leased or maintained by the Association, together
with all improvements thereon; (c) all easements or dedications created or reserved
on any Plat, or Supplemental Plat, or in this Declaration or in any Supplemental
Declaration, or in any separate agreement, for the use and benefit of the Association
and/or the Owners, and (d) any water rights, ditch rights, and water systems, facilities
and/or features (or interests therein) that may be owned, leased or maintained by the
Association or which the Association is entitled to use. Association Properry may
be located within or outside the Common Interest Community. With the exception
of easements which are Association Property, Association Properry does not include
the Lots or the Improvements constructed thereon.
Board. "Board" shall mean and refer to the Board of the Pinyon Mesa Homeowners
Association, Inc.
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Section 2.9
Section 2.10
Section 2.11
Section 2.12
Section 2.13
Building Envelope. "Building Envelope" means that portion of a Lot which may
be depicted and designated as the "Building Envelope" or, if no such depiction or
designation is made, the area within setback lines of a Lot on a Plat. If a Lot contains
such a Building Envelope, all Improvements on that Lot must be located entirely
within the Building Envelope, including, but not limited to, dwellings, detachei
patios and decks, garages, but excluding roof overhangs, accesr driveways,
underground utilities, and irrigation and drainage systems. The Design Review
Committee may approve the location of certain Improvements outside mL nuitOing
Envelope, such as landscaping, fences and attached patios and decks.
Notwithstanding the foregoing, any and all modifications to the Building Envelope
are prohibited.
Bylaws. "Bylaws" shall mean and refer to the Bylaws of the pinyon Mesa
Homeowners Association, Inc., a Colorado nonprofit corporation.
CCIOA. CCIOA shall mean and referto the Colorado Common Interest Ownership
Act, located at sections 38-33.3- l0l (et seq.), colorado Revised statutes.
common Area. "common Area" means any portion of the common Interest
Community designated in this Declaration or any Supplemental Declaration or on a
Plat or any Supplemental Plat as Common Area or Limited Common Area or Open
Space and which is 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 liabilities incurred by or on behalf of the Association, together with any
allocations to reserves, including, but not limited to, the following:
(l) The costs of maintenance, management, operation, repair and
replacement of the Association Property, and of all other parts of the Common
Interest community which are managed or maintained by the Association;
(2) The costs of Improvements constructed from time to time by the
Association on or in connection with Association Property, if such costs were
included within a duly adopted Budget;
(3) Unpaid assessments;
(4) The costs of management and administration of the Association,
including, but not limited to, compensation paid by the Association to managers,
accountants, attorneys and employees;
4
(5) The costs of utilities and services (including, but not limited to,
treated or untreated water, electricity, gas, sewer, trash pick-up and disposal and
recycling), which are provided to the Association or the Common Interest
Community or parts thireof and not individually metered or assessed to Lots,
landscaping maintenance, and other services which generally benefit and enhance the
value and d-esirability ofthe Commonlnterest Community orparts thereofand which
are provided by or on behalf of the Association;
(6) The costs of insurance maintained by the Association as required or
permitted herein;
(7) Reasonable reserves for contingencies, replacements and other proper
purpor", as deemed appropriate by the Board to meet anticipated costs and expenses
inciuding, but not limiied-to, muint"nur"e, repair and replacement of Association
rroperty that must be maintained, repaired or replaced on a periodic basis'
(8) The costs of bonding the members of the Board, the officers of the
Associaiion, any professional managing agent or any other Person handling the funds
of the Association;
(9) Taxes Paid bY the Association;
(10) Amounts paid by the Association for the discharge of any lien or
encumbrance levied against Association Property or any portion thereof;
(ll) The costs incurred by the Design Review committee, and by any
other committees that may be established from time to time by the Board;
(12) The costs of any security or security systems or services that may be
installed, operated, monitored or contracted for by the Association for the benefit of
the Common Interest CommunitY;
(13) All expenses expressly declared to be common Expenses by this
Declaraiion orby a Supplemental Declaration, and all expenses lawfully determined
to be Common Expenses by the Board; and
( I 4) Other expenses incurred by the Association for any reason whatsoever
in connection with Asslciation Properfy, or the costs of any other item or service
provided or performed by the Association pursuant to this Declaration, any
'supplemental Declaration, 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 fumished to the
Common Interest Community are part of services that are provided to or benefit
5
Section 2.14
Section 2.15
Section 2.16
Section 2.17
Section 2.18
property in addition to the Common Interest Community, Common Expenses shall
only include the cost of such services reasonably allocated to the servicis provided
to the Common Interest Community.
common Interest Communig. "common Interest community,, means all of the
land area as shown on the Plat together with all Improvements and other amenitiesnow or hereafter located thereon, and together with all easements, rights,
appurtenances and privileges belonging or in any way pertaining thereto, plus any
additional real property annexed thereto and/or minus any real property *itnA**n
therefrom.
County. County means Garfield County, Colorado.
Declarant. "Declarant" means pinyon Mesa Investments, LLC and pinyon Mesa
Development, LLC, their successors, assigns, and affiliates. A person shall be
deemed to be a "successor and assign" of Declarant if specifically designated in a
duly recorded instrument as a successor or assign ofDeclarant under this Declaration
and shall be deemed a successor and assign of Declarant only as to the particular
rights or interests of Declarant under this Declaration which are specifically
designated in that written instrument. The term "affiliate ofDeclarant" shall have thl
meaning set forth in Section 38-33.3-103(l) of the Act.
Deed of Trust. "Deed of Trust" means a Mortgage.
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 _ ar page _ as Receition No.
Lease. "Lease" means and refers to any agreement for the leasing, rental, use or
occupancy 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 3.34 below.
Section 2.19 Design Guidelines. "Design Guidelines" means the rules, procedures, standards,
guidelines and requirements promulgated from time to time Ly the Design Review
Committee, and all amendments thereto, governing the review and approval or
disapproval ofproposed Improvements within the Common InterestCo.-urity, th"
registration of builders, and such other matters as the Design Review Committee
considers necessary or appropriate.
Section 2.20 Design Review Committee. "Design Review Committee" means the committee
provided for in Article IV of this Declaration.
Section 2.21
6
Section2.22
Section 2.23
Section 2.24
Section 2.25
Section 2.26
Section 2.27
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 otherwise,
alterations, additions, repairs, excavation, grading,landscaping orotherworkwhich
in any way alter any property within the Common Interest Community, or the
Improvements located thereon, from its natural or improved state existing on the date
thii Declaration was first recorded, including, but not limited to, dwelling units,
buildings, outbuildings, additions, swimming pools, patio covers, awnings, the
painting, staining 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, screening walls,
retaining walls, stairs, decks, flag poles, fixtures, landscaping (including the addition,
alteration or removal of any tree, shrub or other vegetation), hedges, windbreaks,
plantings, planted trees and shrubs, gardens, poles, signs, tanks, solar equipment,
wind harnissing or other energy generating equipment, exterior air conditioning,
water softener fixtures, utilities, antennae and satellite 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
purposes, 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
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as Reception No.
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in the real property
records of Garfield County, Colorado.
Mortgage. "Mortgage" means any mortgage, deed of trust or other security
instrument, given voluntarily by the Owner of a Lot, creating a real property security
interest in a Lot and recorded in the real property records of the Clerk and Recorder
of Garfield County. "First Mortgage" means a mortgage which is the fust and most
senior of the Mortgages on the same Lot. The term "Mortgage" does not mean a
statutory, tax or judicial lien. The term "Deed of Trust" when used herein shall be
synonymous with the term "Mortgage."
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.
Mortgagor. "Mortgagor" means the maker, obligor or grantor of a Mortgage. The
term "Mortgagor" includes a trustor or grantor under a Deed of Trust.
7
Section 2.32
Section 2.28 Notice and Hearing. "Notice and Hearing" means a written notice and public
hearing before the Board, or a panel appointed by the Board, as set forth in the
Bylaws.
Section 2.29 Occupant. "Occupant" means any Person who is a tenant pursuant to Lease with the
Owner thereof. "Occupant" also 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, or the Association.
Section 2.30 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 ofsale and excluding buyers thereunder.
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 property
pursuant to the laws of the State of Colorado.
Pinyon Mesa P.U.D. Plan. "Pinyon Mesa p.U.D. pran" means the p.U.D. plan for
Pinyon Mesa adopted and approved by the county of Garfield in ordinance No.
Section 2.31
on _,200_, a copy o
of Garfield County as Reception No.
f which is recorded in the real property records
Section 2.33 Plat. "Platl'means the Final PIat of pinyon Mesa, as recorded
200_, as Book _) Page _ and as Reception No
in the office of the Clerk and Recorder of Garfield County, Colorudo, ur *id pl,ut
may be amended from time to time.
Section 2.34 Regular Assessment. "RegularAssessment" means a charge against an Owner and
the Owner's Lot for purposes of covering the annual costs of operating and
administering the Association and all other Common Expenses. Regular
Assessments are based on a Budget adopted by the Board in accordance with Section
9.6 below, and are allocated to the Lots in accordance with the Allocated Interests,
except that Common Expenses that in the judgment of the Board benefit fewer than
all of the Lots shall be allocated exclusively to the Lots benefitted.
Section 2.35 Reimbursement Assessment. "Reimbursement Assessment" means acharge
against a particular owner and the owner's Lot for purpose of reimbursing the
Association for costs and expenses incurred by the Association in connection with
the enforcement of any provision hereof or the remedying of any violation by the
owner or an occupant of this Declaration or any amendment hereto or any
Supplemental Declaration, the Articles, Bylaws, or Design Guidelines, or any
approvals granted by the Design Review Committee, or for otherpurposes set forth
in the Declaration, pursuant to Section 9.9 hereof, together with late charges and
interest as provided for herein. Reimbursement Assessment shall include without
8
Section 2.36
limitation any Common Expense caused by the misconduct of any Owner or of such
Owner's Occupants.
Special Assessment. "Special Assessment" means a charge against an Owner and
6, O**r', Lot for purposes of reimbursing the Association for costs and expenses
incurred or to be incurred by the Association for the purpose of paying for the
constructiOn, reconstructiOn, repair, maintenance or replacement of capital
improvements to or upon or serving the Common Interest Community, the costs of
which were not includid in a Regular Assessment, or for excess reconsffuction costs
or other extraordinary .*persis, or for funding any operating deficit of the
Association, as authorized by the Board from time to time as provided herein'
Special Assessments shall be based on a Budget adopted by the Board in accordance
with Section 9.8 below.
ARTICLE III
GENERAL RESTRICTIONS APPLICABLE TO THE
COMMON INTEREST COMMLTNITY
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 Commu*ty, including, but not limited to all Lots, shall be owned, held,
used, occupied, improved, altered, maintained, conveyed, leased, encumbered and enjoyed subject
to the folfowing ior"nant., 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
Declarati-on, (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 orotherlmprovement, including, without limitation, exteriorcolor
scheme, anO att .hurg"r in thi 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 if tn. Design Review Committee. Notwithstanding the foregoing, in the
event of an "-"rg.n"y or the sudden occurrence of unanticipated conditions which
9
Section 3.2
Section 3.3
threaten the health, safefy or physical well-being of Persons or property within the
Common Interest Community, the Board and/or the Design Reviiw 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 ImpiovementJmad-e
by Declarant in the exercise of any development rights or speciai Declarant rights
reserved by Declarant in this Declaration.
violation of Law. Insurance. Etc. No owner or occupant or person shall do any
act orcause orpermit anything to be done orkept in orupon aLot,a residencl
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 govemmental 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, utt Lotr (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 fonh 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 responsiUitity ofthe
Owner of the Lot. Such maintenance and repair shall be performed by each Owner
whenever necessary or appropriate and at regular intenrals 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 or other
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
they are responsible 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 curi the violaiion,
10
Section 3.4
Section 3.5
to perform any needed repairs or maintenance, or to otherwise cause compliance with
this 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.
Residential Use and Occupancy. Each Lot shall be improved, occupied and used
only for private residential purposes. 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 be
erected, placed or permitted to remain on any Lot. No office, business and/or
commercial structures shall be perniitted within the Common Interest Community.
Except as so allowed, no business, professional or other non-residential or
commercial use shall be made of any Lot, or conducted in any residence constructed
on a Lot, excepting in-home businesses or occupations which do not involve: (i)
employees, (ii) the solicitation or invitation of the general public, or (iii) the
servicing of customers, and which activities are conducted entirely within the
residence and do not 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 (whether conducted within the residence or elsewhere) shall be kept
or stored on any Lot except within the residence, garage, or other outbuilding
approved by the Design Review Committee. Nonvithstanding the foregoing,
activities normally associated 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-permanent out-building (specifically including mobile homes
and trailers) 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 l8
months following commencement of construction or remodeling unless a written
extension is granted by the Design Review Committee. No trailer, mobile home,
incomplete residence or other structure other than a residence completed in
accordance with approved plans, shall ever be used or occupied at any time for
residential purposes, either temporarily or permanently. No completed residence on
a Lot shall be occupied in any manner until all provisions of this Master Declaration
and of the Design Guidelines and all conditions of development approval have been
complied with, and a Certificate of Compliance has been issued pursuant to Section
ll
4.17 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 diligently from the commencement thereof until the completion thereof.
Section 3.6 Building Envelopes. See the above definition of this term for the general
restrictions applicable to Building Envelopes.
Section 3.7 Design Guidelines. All excavation and other land disturbance, consffuction,
landscaping and irrigation activities within the Common Interest Community shall
be strictly govemed by the procedures, standards, guidelines, resffictions and
requirements set forth in the Design Guidelines. A violation of the Design
Guidelines shall constitute a violation of this Declaration and may be enforced in
accordance with the terms hereof.
Section 3.8 Annoying Light. Sound or Odor. All exterior lighting installed or maintained on
any Lot or on any Improvement located on a Lot shall be placed so that the light
source is screened or shielded from the residence on any other Lot. No light shall be
emitted from any part ofthe Common Interest Community (including any Lot) which
is unreasonably bright or causes unreasonable glare. Without limiting the generality
of the foregoing, no spotlights, floodlights or other high-intensity lights shall be
permitted within the Common Interest Community without the prior written approval
of the Design Review Committee. The Design Guidelines may contain standards for
exterior lighting including, without limitation, standards for hue and intensity.
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 from any part of the Common Interest Community (including any
Lot) which is noxious or unreasonably offensive to others. Again without limiting
the generality of the foregoing, no exterior speakers, homs, whistles, bells, or 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 3.7, including the reasonableness of any
light, sound or odor.
Section 3.9 Noxious or OffensiveActivities: 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 Occupants. As used herein,
t2
the term "nuisance" shall not apply to any activities of Declarant which are
reasonablynecessary orappropriate to the development, improvement, maintenance,
marketing and/or sale of the Common Interest Community orany part thereof. The
Board, in its sole discretion, shall have the right and authority to determine the
existence of any nuisance or umeasonable annoyance under this Section 3.8.
Each Owner shall comply with requirements of all health authorities and other
governmental authorities havingjurisdiction overthe Common InterestCommunity.
Normal construction activities and parking, during daylighthours, inconnection 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 orotherrequirements of the Design Review Committee, butLots shall be
kept in a neat and tidy condition during 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. tn 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 constnrction.
Section 3.10 No Hazardous or Unsafe Activities. No activity shall be conducted on, and no
Improvement shall be consffucted 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
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, permitted 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.
Section 3.1I Outside Burning: Fire Hazards. No exterior fires shall be lighted orpermitted on
any properfy within the Common Interest Community except in a contained barbecue
unit. No Owner shall cause or permit any condition on his Lot which creates a fire
hazard or is in violation of fire prevention regulations, or which would increase
insurance rates forotherOwners. Notwithstanding the foregoing, the Declarant shall
have the right to perform burning activities in connection with the development and
marketing of the Common Interest Community.
13
Section 3.12 Exterior Lighting. All exterior lighting in the Common Interest Community shall
comply with the County's lighting regulations, Section 3.7 of this Declaration and
the Design Guidelines.
Section 3.13
Section 3.14
Section 3.15
Fireplaces. Dwelling units will be allowed one (l) new wood-burning stove as
defined by c.R.S. section 25-7-401, et. seq, and the regulations promulgated
thereunder. No other solid fuel burning f,rreplaces, stoves, appliances or other
devices shall be permitted on any Lot, except outdoor charcoal grills.
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.
Garbage and rrash 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, except that any approved container containing such
materials may be placed next to the street on the designated morning of garbage
collection and must be returned to its enclosed structure that same day. No garbage
containers, trash cans orreceptacles shall be maintained in an unsanitary orunsightly
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 burned thereon. Compost structures and containers 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 3.16 Vehicle Parking. Storage. Operation and Repair.
(1) Each single-family residence constnrcted on any Lot shall include a
garage within which adequate space will be maintained at all times for the parking
of the number of vehicles for which the garage was designed. Parking by the guests
of Owners or Occupants will be Iimited 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,
motorcycles, snowmobiles, recreational vehicles, all terrain vehicles, golf carts,
trucks, industrial or cortmercial vehicles (both cabs or trailers), abandoned or
l4
inoperable vehicles (as defined below), or any other similar vehicles (excepting
passenger automobiles and one ton or smaller pick-up trucks) shall be parked on a
public sffeet in the Common Interest Community, or parked or Stored upon a Lot
Lxcept within enclosed structures approved in advance by the Design Review
Committee, and 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 washing and polishing
of vehicles and boats, together with activities normally incident thereto.
(4) No more than two (2) permitted vehicles (passenger automobiles
and/or one ton or 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.
(5) An "abandoned 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 their 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 orDesign 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 the 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 that
motorcycles properly licensed for operation on public roads may be used on public
streets within the Common Interest Community.
(8) All approved ADUs shall provide forone additional parking space for
each such ADU.
l5
Section 3. I 7
Section 3.18
Animals. Each Lot shall be entitled to a maximum of one (l) dogs ortwo (2) cats,
or one of each, and a reasonable number of other Household Pets, unless otherwise
approved by the Board, so long as such dog, cats and 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 or restrained at all times within the Owner's or
Occupant's Lot, and shall not be permitted outside such Lot except when leashed or
accompanied by the pet's owner or the owner's representative. All Household Pets
shall be properly immunized and otherwise maintained and cared for as required by
applicable laws.
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 destnrction caused by the pet, and for any clean-up of the Owner's Lot 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 are being kept in unreasonable numbers, orare causing an
unreasonable 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 of fines and/or,
assessments as provided in Section 9.9 hereof. Also, without 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.
Restrictions on Equipment. Tanks. Antennae. Satellite Dishes. Etc. Heating, air
conditioning (including swamp coolers), air movement, wind collection, or
refrigeration equipment 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 architectural
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 tanks of any kind, whether elevated or buried, shall be
erected, placed or permitted to remain upon any Lot except in compliance with
applicable federal and state regulations, and then only with the prior written consent
of the Design Review Committee. Any approved tank must be located underground
t6
Section 3.19
Section 3.20
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 video programming, the Owner
shall notifo the Design Review Committee in writing of the planned installation and
the proposed location thereof at least ten (10) 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, install
thi antenna in a location that minimizes its visibility from neighboring Lots. The
installing Owner shall be obligated to paint the antenna so that it blends into the
backgroind against which it is mounted and to plant and maintain such reasonable
landiaping aiwill screen the antenna, to the extent feasible, from neighboring Lots'
Provided uhruyr, that in the event that in any particular situation any of the foregoing
requirements or restrictions cause an umeasonable delay or cost in the installation,
maintenance or use of the antenna, or prevent the reception of acceptable quality
signals, said requirements or restrictions shall be invalid as they apply to that
particular situation.
Satellite dishes that exceed one meter 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 l2 feet above
the roof line and antennas that are not used to receive video programming shall only
be permitted within the CommonlnterestCommunity ifthey receive thepriorwritten
approual of the Design Review Committee as to design, location and screening from
neighboring Lots
Drainase Restriction. No Owner shall construct, install, maintain or permit any
lr"pt"*t*,t t on a Lot that would result in storm water run-off draining onto another
Loi, except by way of drainage easements as shown on any PIat or drainage
structures as installed by Declarant.
No Interference with Waterways or Drainage or Irrigation Systems' No Owner
shall construct, install, maintain or permit any fence or other Improvement or
obsfuction or plant trees or take any other action which damages or intelTupts 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 within the
easemints described in Section 6.f , (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 owners of ditches and other water rights
and the r"qrir".ints 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 the right to enter upon a Lot for purposes of
correCting or removing the same, and any costs incurred by the Association in
t7
Section 3.21
Section 3.22
connection with such abatement, injunctive or corrective activities shall be assessed
to the responsible owner in the form of a Reimbursement Assessment.
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 ofthe Design Review Committee and in conformance with the
Design Guidelines. Privacy fences, security fences, and fences for screening
pu{poses may also be prohibited. To the extent they are permitted, they shall also bi
approved bythe Design Review Committee and constructed in conformancewith the
Design Guidelines. Declarant andlor the Association, through the Design Review
Committee, shall have the right to designate the specific fence to be inslalled, if a
fence is allowed.
. All easements shown on a plat
covering any portion of the Common Interest Community have been created or
reserved for the purposes indicated on such Plat and/or in Article VI 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 landscaping which will not interfere with the use of said easement by
the Persons or entities for 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 ani
all bona fide public and private utility service companies, and special disricts shall
have the right of access? ingress, egress, and use of such easement areas for the
installation, operation and maintenance of utility facilities serving the Common
Interest Community.
Except for street lighting, no aerial utility lines or facilities of any type (except
meters, risers, service pedestals and other surface installations necessaryto 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, sfieets, or rights-of-way of any type,
either by a utility company, an owner, the Association, or any other person oi
"ntlty(including, but not limited to, any person owning or acquiring any part of thl
Common Interest Community) and all utility lines and facilities (including, but not
limited to, water, sewer, gas, electricity, telephone, and cable w) shall be buried
underground. Provided that, during the construction of a residence on a Lot, a
temporary overhead power line may be installed which shall be promptly removed
upon completion of construction.
l8
Section 3.23
Section 3.24
Section 3.25
Section 3.26
Landscaping and Irrigation Regulations. No landscaping shall be performed on
-y L"t *t"tr " landscaping and irrigation plan therefor has received the prior
*ritt.nupproval ofthe DeiignReviewCommiftee, and all landscaping and irrigation
shall comily with the Design Guidelines. A landscaping and irrigation plan for each
Lot must be approved Uy ttre Design Review Committee before consffuction is
commenced on the residence on that Lot.
Each Owner shall diligently maintain, trim, weed, cultivate, husband, protect,
preserve and otherwise keep in a healthy and attractive condition the shrubs, ffees,
iredges, grass, planters, gardens and other landscaping upon the Owner's Lot,
incliAinf, without limitation, the removal of dead and diseased branches and brush
and the f..forrnur"e of other tasks necessary to remove or eliminate material which
constitutes or creates a fire hazard or nuisance. Each Owner shall keep the Owner's
Lot free of Noxious Weeds. "Noxious Weeds" is defined as those listed by the
Vegetation Management Department of Garfield County, as such list may be
aminded from time to time. Each Owner shall cooperate with the Association in its
brush clearing and fire protection husbandry program for reduction of fire hazard
within the Common Intirest 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 rlquired to remedy the violation, at the Owner's cost and
expense, within 30 days foll,owing a written request therefor from the Association.
If iaid Owner or Occupant fails to comply with the request in a timely manner, the
Association shall havi the right to enter upon the Owner's Lot to perform the
necessary work and may assess the costs thereof against the Owner and the Owner's
Lot in the form of a Reimbursement Assessment.
Driveways and Road Surfaces. All roads, driveways and parking surfaces must be
p"""d, "-r""rt"ined with concrete or other hard surface material. Driveways and
parking surface must be paved, or maintained with concrete or other hard surface
material within four (4) months after the Owner of the lot is issued a certificate of
occupancy. Each Owner shall maintain all paved, concrete within the Owner's Lot
in good condition and rePair.
Basketball Goals. Basketball goals, backboards and nets shall notbe allowed unless
tt*y .".pty *ith the Design Guidelines and the approval of the Design Review
Committee is first obtained.
Swimming Pools. Spas. and Related Equipment. Pools, spas or hot tubs may be
"r".t"d, .*structed or installed on Lots within the Common Interest Community,
provided they comply with the Design Guidelines and receive the prior written
consent of thl Design Review Committee. If a pool, spa or hot tub is approved, all
service equipment it utt U" fenced, adequately screened from any neighboring Lot
and the finai location shall be approved by the Design Review Committee.
l9
Section 3.27
Section 3.28
Section 3.29
Section 3.30
Signs and Advertising. No sign, poster, billboard or advertising device of any kind
shall be allowed or displayed upon any Lot within the Common Interest Community
except: (a) such signs as may be used by the Declarant or builders approved by
Declarant in connection with the development, marketing and sale of Lots in thl
common Interest community; (b) such signs as may be required by legal
proceedings, the prohibition of which is precluded by law; (c) neighbortrooa
monuments (e.g., entrance and directional signs) which are compatible with the
architecture of the area; (d) one security company sign; and (e) one "For Sale" or
"For Rent" sign on any Lot. AII such signs must comply with the Design Guidelines
and County sign regulations.
No Individual water wells or Individual Sewage Disposal systems. No
individual water wells, and no cesspools, septic tankJor othi. irrdi.rridrul r"*ug"
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 Declarant's successor, assign or agent or the
Association to serve the Common Interest Community.
Restoration of Improvements in the Event of Damage or Destruction. 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 condition 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 otherwise 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 ADU,
if applicable, under the following conditions:
(l) All leases shall be in writing, and must cover the entire residence or
ADU (i.e., no leases ofbedrooms alone orothenvise covering less than all ofthe Lot
or ADU shall be permitted).
(2) All leases shall provide (i) that the terms of the lease and the renant's
(Occupant's) use 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 Occupant has received and reviewed copies of said documents, and (iii)
that any failure by the Occupant to comply with any of the aforesaid documents, in
any respect, shall be a default by occupant under the Lease and a default by
Occupant and Owner under said documents which may be enforced against Occupant
and/or Owner by the Board.
20
Section 3.31
(3) Each Owner shall notiff the Association immediately upon the leasing
of his residence or ADU and shall provide the Association with a copy of the lease
and with the name and mailing address of the Occupant and the mailing address (if
changed) of the Owner.
(4) Each Owner who leases a residence or ADU shall be responsible for
assuring compliance by the Occupant with all of the provisions of this Declaration,
the Art]cles,
-the
Bylaws, and tire Design Cuidelines, and shall be jointly and
severally responsibll with the Occupant for any violations thereof by the Occupant'
(5) Each lease shall expressly provide that the Association (via the Board)
shall havi the right to give the bccupant written notice that the Occupant is in
violation of one o, *ori of the documents listed in subsection (2) above, which
notice shall speciry a period of time (at least 5 days) in which the Occupant may cure
the violation. lf th" violation continues uncured, or if it is repeated within the 3-
month period following the date of the first notice, the Lease shall provide that the
Owner gives to the Aisociation an irrevocable power of attorney to act on the
Owner'Jbehalf to give such statutory notices to the Occupant and to take such other
actions as may be necessary or appiopriate to terminate the Lease and to evict the
Occupant from the premises. If a Lease does not contain such provisions, the Owner
hereby irrevocably appoints the Association as its attorney-in-fact to act on its behalf
as set forth herein.
(6) All legal fees and costs incurred by the Association in connection
with a Lease shall be the joint and several liability of the Owner and the Occupant
and may be collected by iegal action in which the prevailing party shall be entitled
to an award of its reasonable costs and attorney's fees'
Right of Entry. During reasonable hours and upon reasonable notice to the Owner
- O"*purt ola Lot, airy member of the Design Review Committee, any member
of the Board, and any authorized representative of eitherofthem, shall have the right
to enter upon and inspect any Loi and the Improvements thereon, except for the
interiorportions of any occupied dwelling (which shall require the permission ofthe
Owner or Occupant, eicept in case of emergency, when no notice or permission shall
be required), for the 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 purpose of exercising any rights or performing any responsibilities
(maintenance, repair, etc.) provided for in this Declaration, and such individuals shall
not be deemed guilty of t ..purt by reason of such entry. For purposes of this
Section 3.30, "emeriency" shall mean circumstances posing an imminent threat of
injury or damage to persons or property.
2l
Section 3.32
Section 3.33
Damage by Owners During Construction. Each Owner is responsible for any
damage caused to roads, streets, ditches, fences, ffails, nafural drainage .o.rrr"i
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 by any construction vehicles using the roadJor streets within the
common Interest community. Damage shail include any degradation in the
appearance or condition of such roads, streets or other Lots or Improvements. The
responsible owner shall promptly repair and clean up any such damage, at its sole
expense. Each Owner shall also be responsible for any damage caused by utility cuts
in roads, washouts and runoff damage caused by failure to pioperly insiall culverts,
and shall promptly repair any such damage. If the owner fails to repair any such
damage within ten (10) days following receipt of a written notice from the Board
requesting the same, the Board shall have the right to perform such repairs on behalf
of the Owner, and to levy a Reimbursement Assessment upon the Owner and its Lot
to recover the costs thereof.
Restrictions on Reslbdivision. property Restrictions. and Rezoning. Except as
expressly permitted in this Declaration: (i) no Lot shall ever be furthei subdivided
or replatted by an Owner into smaller lots or parcels, (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.
( I ) Declarant reserves the right to subdivide a Lot or to combine two Lots
owned by Declarant, or to adjust or remove boundary lines between Lots owned by
Declarant, provided any necessary County approvals are obtained, all Declaration
and Plat amendments required by the Act and/or local land use laws are prepared,
executed and recorded. No change in Allocated Interests shall occur.
- I1other
words, if tn o Lots are combined, the resulting Lot shall continue to constitute two
(2) Lots for assessment and voting purposes. AII costs relating to the foregoing
activities shall be the sole responsibility and obligation of Declarant. Declarant\
rights under this subsection (1) shall terminate upon the first to occur of (i) the date
which is thirty (30) years after the recording of this 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., the Lots combined) by the Owner(s) thereof other than Declarant if (i)
the written consent of the Board is first obtained, in the sole discretion of the goard,
(ii) all applicable regulations and codes are complied with and all necessary County
approvals are obtained, (iii) the proposed adjustrnent or removal does not violate thl
terms of any document evidencing a security interest in the subject Lots, and (iv) all
Declaration and PIat amendments required by the Act 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 upo, th"
22
matter) shall be the sole responsibility and obligation of the Owne(s) applying for
the same.
(3) No Owner of a Lot shall grant or convey any easement rights
affecting any portion of the Lot without the prior written consent of the Board.
(4) No fuither covenants, conditions, restrictions or easements shall be
recorded by any Owner (except Declarant in the exercise of its reserved rights) or
other Persons against any Lot without the provisions thereof having been first
approved in writing by the Board for consistency with the Declaration and the
general plan of development forthe Common Interest Community. Any covenants,
ionditions, 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 Lot, and no application for any
variance or special use permit for any Lot, shall be filed with any governmental
authority by any Owner (except Declarant 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.
Section 3.34 House Size Regulations. Single-family residences in the Common Interest
Community shall be subject to the size limitations as set forth in the Pinyon Mesa
P.U.D. Plan and Design Guidelines.
Section 3.35
Section 3.36
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 orwelfare 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.
Implementation and Variances. The Board may, in its sole discretion and in
extinuating circumstances, grant variances from any of the restrictions set forth in
this Article III (excepting any such restrictions with respect to which the Design
Review Committee has the authority to grant variances under Section 4.15 below),
if the Board determines, in its discretion, (a) either (i) that a particular restriction
creates a substantial hardship or burden on an Owner or Occupant, which hardship
or burden was not caused by said Owner or Occupant, or (ii) that a change of
circumstances since the recordation of this Declaration has rendered such restriction
obsolete; and (b) that the activity permitted under the variance, in the judgment of
the Board, will not have any material adverse effect on the Owners and Occupants
of the Common Interest Communiry (including neighboring Lots) and is consistent
with the high quality of living intended to be promoted hereby throughout the
23
Common Interest Community. when an owner applies for a variance, the 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, return
receipt requested, to all Owners of Lots, at the current addresses for such Owners
reflected in the Association files. If the foregoing notice requirements are complied
with, it is not necessary that the Owners actually receive the notice that is mailed to
them, such notices being deemed received upon mailing.
No variance shall conflict with the Pinyon Mesa P.U.D. or with ordinances or
regulations of the County If a variance from the Plan or County laws or regulations
is also required 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 applicition to the Board
Section 3.37 Declarant Activities. Nothing contained in this Declaration is intended or shall be
construed to prevent, regulate or delay or to restrict in any way Declarant's right and
ability to develop, improve, maintain, repair, regulate, operate, administer, manage,, market, sell, lease, encumber or dispose of the Common Interest Community, the
Lots, or any part thereof, including the right to construct Improvements, place
construction or office trailers, and install signs thereon, all in the complete discretion
of Declarant.
Section 3.38 County Approvals. In addition to the general restrictions set forth in this Article,
and subject to legally established vested rights, the use and occupancy ofeach Lot
shall be subject to the requirements set forth in the Ordinances, Resolutions, Plats or
Agreements adopted and approved by the County relating to Pinyon Mesa, and in
particular the Pinyon Mesa P.U.D. PIan, and all approved modifications thereto, as
well as the general zoning and subdivision regulations of the County that are
applicable to Pinyon Mesa.
ARTICLE IV
DESIGN REVIEW COMMITTEE
Section 4.1 Establishment of Design Review Committee. The Association shall have a Design
Review committee, which shall consist of a minimum of three (3) members, each
of whom shall either be (i) a representative of the Declarant, or (ii) an owner or
Occupant of a Lot in the Common Interest Community. AII 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 any time upon
written notice, without cause. Subject to the three (3) memberminimum, 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
24
Section 4.2
Section 4.3
Section 4.4
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.
Records of Actions. The Design Review Committee shall keep a pennanent record
of all actions of the Design Review Committee.
Design Guidelines. The Design Review Committee 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 ofany 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 adoption, each such
amendment shall be provided to the Board. The Design Guidelines (as they may be
amended from time to time) are hereby incorporated herein and shall be deemed to
be a part 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 forth herein. A copy of the current Design Guidelines shall, at all
times, be a part of the Association's records. The Design Review Committee, in its
sole discretion, shallhave the right and authority to determine the existence of any
violation of the Design Guidelines or of any approvals granted or other decisions
25
Section4.5
Section 4.6
Section 4.7
made by, or other requirements of, the Design Review 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 review fee schedule which shall apply to requests for
approval of reconstruction, remodels, renovations or other alterations of or to
Improvements (collectively referred to herein as "Work"), except that no fee shall
be charged for any proposed alteration or addition to an approved landscaping plan.
The design review 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 approval
until all required fees are paid in connection therewith.
Design Review and Construction Process. Every Ownerproposing any Work on
its Lot must comply with the design review and consffuction procedures that are set
forth in the Design Guidelines.
Submission of Plans. Specifications and Data: Time Frame for Approval. Prior
to commencement of Work, the Owner proposing 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, irrigation plans, fencing and wall plans, specifications, and
samples of materials and colors as the Design Review Committee 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 reconstructed, 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 approving or
disapproving the proposed Work. Until receipt by the Design Review Committee of
all required information and materials in connection with the proposed Work, the
Design Review Committee may postpone review of the application.
From and afterthe date on which the Design Review Committee receives all required
information and materials in connection with theproposedWork, theDesign Review
Committee shall have thirty (30) calendar days in which to approve, 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 application within said 30-day
period, the final plans and specifications submitted to the Committee by the Owner
shall be deemed approved.
26
Section 4.8
Section4.9
Section 4.10
Criteria for Approval or Disapproval: Certificate of Approval. The Design
Review Committee shall approve any proposed Work, and shall issue a Certificate
of Approval therefor lwhich grants approval to an identified set of plans, subjectlo
any ionditions to approval), only if it determines in its reasonable discretion that the
Pinyon Mesa P.U.D. Plan and the Design Guidelines have been complied with; that
the proposed Work is in compliance with all applicable provisions of this
Declaraiion; that the proposed Work will not be detrimental to the value or
enjoyment of the tuoounding areas in the Common Interest Community; that the
siting, design, bulk, height, upptutur.. and overall aesthetic impact of the proposed
Work will be in harmony with the surrounding areas in the Common Interest
Community; that the proposed Work will enhance the quality, wholesomeness, and
attractiveniss of the
-Co*o,
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 any proposed
Improvements upon the making of such changes therein as the Design Review
Committee *uy d"rm reasonably appropriate, and may require that architectural
embellishmenti (or details) and/or additional landscaping be performed on the-
subject Lot. In all cases, the Design Review Committee must issue a Certificate of
Apiroval 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
sr"h approral will be granted again in the future for the same or a similar Work, and
the Committee shall 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.
Decisions of Committee. Decisions of the Design Review Committee shall be made
in u..*dunce with the procedures established in the Design Guidelines and shall be
binding on all parties.
Completion of Work After Approval. Following the approval of any proposed
W-t Uy tt
"
Design Review Committee, 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 periods'ser forth below; (b) in compliance with the Design Guidelines and with
all applicable laws, regulations and codes; (c) in strict conformance with all plans
and specifications and other materials fumished to and approved by the Design
Review Committee and with the Certificate of Approval; and (d) in accordance with
any and all conditions imposed by the Design Review Committee. All Work
approved by the Design Riview Committee shall be completed, a "Certificate of
iomptlance" shall be obtained in accordance with Section 4.13 below, and all
27
construction equipment, materials and debris shall be removed: (i) within l8 months
from the date of approval by the Design Review Committee, or (ii) within such other
time period as the Design Review Committee may prescribe. Failure to comply with
the terms 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 4.1I Right 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, may (but shall not be obligated to) at any reasonable time enter upon
any Lot, without being deemed guilty of trespass, 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 Workl Correction of Defects.
( I ) 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 'Notice of 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, specifications 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.
(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 notifo the Owner in writing of such
non-compliance within said twenty-one (21) day period, specifuing the particulars
of non-compliance, and shall require the owner to remedy the same. If for any
reason otherthan the Owner's act orneglect, the Committee fails to notifu theOwner
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 (21) day period, the
work shall be deemed in compliance if the work was, in fact, completed as 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 expirarion of thirry (30) days from the date of such
notification of non-compliance the Owner shall have failed to remedy such non-
28
Section 4.13
Section 4.14
Section 4.1 5
compliance, the Design Review Committee shall notifu the Board in writing of such
failure. Thereupon, the Board (and its duly authorized representatives), at 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 remedy the non-compliance, and the Owner shall reimburse the
Association, upon demand, for all expenses, including interest on monies expended
and attorneys'iees, 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 shall be in
addition to all other rights and remedies which the Association may have at law, in
equity, orunder this Declaration, and the Owner shall have no claim for damages or
otherwise on account of the entry upon the property and remedying or removal of the
non-complying Work.
Certificate of Compliance. When the Design Review Committee is satisfied that
the Work has been completed in accordance with all plans, specifications and other
materials furnished to the 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 Ownermay apply to the County for a
certificate of occupancy if required. No re-constnrcted residence on a Lot shall be
occupied until a Certificate oi Compliance has been issued therefor by the Design
Review Committee and a certificate of occupancy has been issued therefor by the
County.
Improvements Must Conform to Approvals. No building, fence, wall, structure,
t""d.*p*g or other Improvement of whatever type shall be re-constructed or
removed within the Common Interest Community, nor shall there be any additions
or changes to the exterior of any residence or other structure or lmprovement upon
a Lot or the landscaping, grading or drainage thereof, including, without limitation,
the painting or staining (other than painting or staining with the same color and type
of paint oistain as priviously existed) of exterior walls, patio covers and fences,
except 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 grant
variances from any of the restrictions set forth in this Declaration or the Design
Guidelines pertaining to proposed Improvements and the criteria therefor, including
restrictions upon triigtri, iir", floor area, setbacks, location or placement of
structures, o, .i*ilu, ristrictions, when (i) unique circumstances not created by the
Owner, such as topography, natural obstructions, or aesthetic or environmental
29
Section 4.16
considerations, would otherwise 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 promoted hereby throughout
the common Interest community. when an owner applies for a variance, the
Committee must give at least ten (10) days written notice of the variance hearing,
and of the nature of the variance requested, postage prepaid, by certified mail, return
receipt requested, to all Owners of Lots, at the current addresses for such Owners
reflected in the Association files. If the foregoing notice requirements are complied
with, it is not necessary that the Owners acnrally receive the notice that is mailld 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 speciry the Lot for which the variance is granted and the unique
circumstances or change in circumstances justi$ring the variance, and must be signed
by at least a majority of the members of the Committee. If any such variance is
granted, no violation 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 to the particular property and particular
provision hereof covered by the variance. 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 complete 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
surrounding 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
required 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 Anproval or Disapproval of plans and Specifications. for
Issuance of Certificates of Approval or Compliance, or for Registration of
Builders. The criteria for Design Review committee approval of plans and
specifications are set forth in Section 4.8 above. The Design Review Committee
30
Section 4.17
Section 4.18
shall 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 laws or regulations. By its approval of
any such plans and specifications, and 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
responsibility with respect to engineering design or for compliance with zoning,
building ordinances, environmental laws, or any other applicable laws or regulations,
or for any defect in any Improvement constructed from such plans and specifications.
Neither the Design Review Committee, any member thereof, the Association, any
Member, the Board northe Declarant shall be liable to any Owner, Occupant orother
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 defective, and/or the issuance of a Certificate of Approval, (b) the construction
or performance of any Work, whether or not pursuant to approved plans, drawings
and specifications, (c) the issuance of a Certificate of Compliance, or (d) the
development, ormanner ofdevelopment ofany property within the Common Interest
Community. The approval of plans and specifications by the Design Review
Committee (including the issuance of a Certificate ofApproval), and/orthe issuance
of a Certificate of Compliance by the Design Review Committee, shall not under any
circumstances constitute or be deemed to be a representation or warranty that the
plans, specifications or completed Improvements comply with applicable laws,
resolutions, ordinances or 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
Design Guidelines shall be enforceable in accordance with the rights and procedures
set forth in Section ll.4 of this Declaration.
Coordination with Building Permit Process. A copy of each Certificate of
Approval, including conditions, shall be provided to the Counry building department
by the Owner 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 sails and foundation report, a grading and drainage plan, and a geologically
acceptable building site prepared and certified by a professional engineer. All
Improvements shall be consffucted in accordance with such engineering
recommendations, which shall be a condition of Design Review Committee approval
and the building permit.
ARTICLE V
ASSOCIATION PROPERTY
3l
Section 5.1 Use and Enjoyment of Association Propertv. Except as otherwiseprovided in this
Declaration, in any Supplemental Declaration, 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 Property 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 to each Lot, subject at all times to the
provisions of this Declaration (including 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 or personal
property upon Association Property, nor shall any Owner or Occupant engage in any
activity which will temporarily orpermanently impair free and unobstnrcted access
to all parts of the Association Property by all Owners.
Section 5.2 Association May Regulate Use of Association Propertv. The Association, acting
through the Board, 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 rules and regulations relating thereto as the Association considers
necessary or appropriate for the protection and preservation of Association Properry
and the enhancement of the use and enjoyment thereof by Owners and Occupants
and other authorized users.
The Association, acting through the Board, may for good cause suspend ttre right of
any person to use and enjoy Association Property, including the right of a Member
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 provisions of
this Declaration or any Supplemental Declaration, the Articles, Bylaws, Design
Guidelines or the terms and provisions of any approvals granted by the Design
Review Committee.
Section 5.3 Association to Maintain and Improve Association Property. The Association, its
agents and employees, shall maintain and repair, snowplow as necessary, and
otherwise manage the Association Property, including, but not limited to, any
Improvements, landscaping, paths, trails, parking areas, drives, and recreational and
other facilities located thereon. The Association may construct, alter and remove
such Improvements and landscaping upon Association Property as the Association
in its 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 beauty
thereof in accordance with the general objectives for the Common Interest
Community reflected in this Declaration.
Section 5.4 No Partition of Association Property. No Owner or other Person shall have any
right to partition or to seek the partition of Association Property or any part thereof.
32
Section 5.5
Section 5.6
Section 5.7
Owner Liabilitv for Owner or Occupant Damage to Association Properhr' Each
Owner shall be liable 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 Association 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 Occupant,
igent, employee, family member, guest or invitee of such Owner of any law,
rJgulation, oicode, including without limitation any environmental law, or of any
privisions of this Master Declaration or any Supplemental Declaration relating to
Association Property. Each Owner shall indemnifo, defend and hold the Association
harmless from any loss, damage, expense or liability arising from the circumstances
described in subsections (a) or (b) immediately above. The Association shall have
the power to levy and collect a Reimbursement 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
destruction of Association Property, including Improvements thereon, by fire or
other casualty, the Association shall repair or replace the same in accordance with
the provisions of Section 9.18 below. Repair, reconstruction, or replacement of
Association Property shall be accomplished under such contracting and bidding
procedures as thi Association shall determine are appropriate. If insurance proceeds
available to the Association on account of damage or destruction exceed the cost of
repair, reconstluction, and replacement, the Association may use the same for future
-uirrt"rrurr"e, repair, improvement, and operation of Association Property or for any
other use deemed appropriate by the Board.
Condemnation of Association Property. If any Association Property or part
thereof or interest therein is taken under exercise of the power of eminent domain or
by purchase in lieu thereof, the portion of any award in condemnation or the price
payable for the deed in lieu that is attributable to the Association Property taken or
purchased shall be paid to the Association. The Association shall have the exclusive
right to participate in such condemnation proceedings and to represent the interests
of ail Owners 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, reconsffuction,
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 Act,
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.
33
Section 5.8 Title to Association Property Upon Dissolrtion of Association. In the event of
dissolution of the Association, the Association Property shall, to the extentpermitted
by law and reasonably possible, be conveyed or transfered to an appropriaie public,
governmental or quasi-governmental agency or organization or to a nonprofit
corporation, association, trust, or other organization, to be used, in any such 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.
Section 5.9 Mechanic's Liens on Association Property. 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' Iiens 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, officers, agents,
contractors or subcontractors. No labor performed or materials furnished 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 fumished 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 reserves 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, ai any time and
from time to time during the period commencing upon the recording of this Declaration in Garlield
County and ending on the date of termination of such rights established under Section S.l0 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 ofany ofthese reserved rights.
The reserved rights hereinafter set forth shall be prior and superior to any other provisions
of this Declaration, and may not be amended, modified, terminated or otherwise altered in ury *uy
without the express prior written consent of Declarant. All conveyances of Lots and other portions
of the Common Interest Community hereafter made, whether by Declarant or otherwir", ,hull b"
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 V and elsewhere in this Declaration, even though no specific
reference to such rights appears in the conveyancing instruments. Nothing in this Arti"l" V shall
34
limit or impair any other 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 200_, at
Reception N 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
of the other reserved rights described in this Article V.
by Declarant of any
Section 6.2 Sales. Marketing and Management. The right to construct, locate or operate, and
to ,*it tuir rpon, and to remove from, any part of the Common Interest Community
including Lois 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 offices, management offices, and/or construction offices, and
structurescontaining or relating to the same, 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 identifoing 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;
35
together with the right to athact, 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 2.5
below, but only for and during the "Period of Declarant Control of Association" as
defined in said Section 7.5.
Section 6.4 Annexation of Additional Unspecified Real Estate. Theright to annex unspecified
real estate to the Common Interest Community to the fullest extent permitted by the
Act.
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.
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 rubj""t
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
Ionger subject to this right of withdrawal.
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.
Section 6.6 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 orcontracted 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 "Armexed property',) and/orminus
36
Section 6.7
Section 6.8
Section 6.9
any real property withdrawn therefrom, similarly, "Association 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
ameidment to a Declaration o, Plat) relating to any real property which is annexed
or withdrawn pursuant to this Article 6. References to this Declaration shall mean
this Declaration as so supplemented by any Plat, or as amended' Every Owner of a
Lot in the area un r"*"d 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 righis and privileges and subject to the same duties and obligations as any other
Associition Mernber. 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 ofsuch date.
The recording of amendments to the Declaration and Plat, whether in the form of
supplement. irrd plut. or otherwise, which reallocate the allocated interests in the
Common Interest Community, shall automatically:
(l) 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 ,ubdiride any Declarant-owned Block or Lot located within the Common Interest
Community to create additional Lots, Association Property, and/or streets, subject
to the maximum number of Lots set forth in the Recitals to this; provided, however,
that such subdivision is consistent with the Pinyon Mesa PUD Plan and that the
subdivision is accomplished in compliance with County subdivision requirements'
Ufon tt. subdivision of any glock or Lot in accordance with the terms and
conditions contained herein, the Allocated Interests ofall 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 tr*rf., additional real ani personal property, and Improvements thereon, to the
Association from time to time in furtherance of this Declaration.
Other Reserved Development Rights. Subject to compliance with any applicable
C"", ty requirements, Declarant reserves the right with respect to all or any
Declaiant-owned portion of the Common Interest Community to (a) create
Associarion property; (b) create additional Lots, subject to themaximum set forth in
the Pinyon uesu p.u.b. ptun; (c) combine Lots; (d) convefi Lots into Association
property; (e) convert Association property into Lots; (f) create conrmon elements
37
Section 6.10
Section 6.1 I
Section 6.12
Section 6.13
and/or limited common elements; (g) reconfigure Lots, streets, and/or Association
properry; and (h) amend the Pinyon Mesa p.u.D. plan. Additionally, in order to
effectively exercise the rights reserved to Declarant under this Article V, Declarant
reserves the right to amend this Declaration (without the consent of Owners,
Mortgagees or the Association being required) for purposes of (a) complying with
or quali$,ing for any required federal or state registration of the p-;r"t, 1uysatisfoing title insurance requirements, or (c) bringing any provision oi prtvisions
of the Declaration into compliance with the Act.
Transfer of Declarant's Reserved Rights. Any one or more rights created or
reserved for the benefit of Declarant under this Article V or elsewhere in this
Declaration may be transferred to any Person by an instrument describing the right
or rights transferred and recorded in Garfield County. Such instrument shail1e
executed by the transferor Declarant and the transferee. The provisions of Section
38-33.3-304 of the Act shall apply to any transfer of special Declarant rights.
. With the exception of Declarant,s
right to appoint or remove Board members and officers of the Association, which is
addressed in Section 7.5 below, the rights reserved to Declarant in this Article V
shall automatically terminate and expire upon the first to occur of (i) the date whichis thirty (30) years after the recording of this Declaration, or (ii) Declarant's
relinquishment and surrender of such rights by recorded instrument. Declarant may
from time to time relinquish and surrender one or more but less than all of thl
reserved rights, in which event the unrelinquished reserved rights 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 may impose on the subsequent exercise of the developmant right. The
extension or renewal 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 ofRights Regarding Development plan
and Declarant's Reserved Rights. Each owner, by its acceptance of a deed to a
Lot, acknowledges that the Owner has carefully reviewed and understands the
Declarant's reserved rights as set forth in this Article V or elsewhere in this
Declaration, that the Owner accepts and approves such matters and appreciates any
potential impacts that the exercise of such reserved rights may have onthe Owneris
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 other conveyance vesting in the Owner an interest in a Lot in thl Common
Interest Community, does hereby irrevocably constitute and appoint Declarant (with
38
full power of substitution) as said Owner's attorney-in-fact, in said Owner's name'
placl 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 IV or elsewhere in this Declaration,
specifically including, without limitation, Declarant's reserved right to use all
eiisting easements within the Common Interest Community or to create, grant' use
andiorieplat and relocate additional or existing easements across any portion of the
common Interest Community excepting platted Building Envelopes.
Section 7.1
Section 7.2
Section 7.3
ARTICLE VII
EASEMENTS
Easements for Incidental Encroachments. If any portion of an Improvement
"ppr"r"d by th" D""gnR*i.* Committee encroaches in its approved locationupon
an Rssociation PropJrry, including any future encroachments arising or resulting
from the repair or reconstruction of an Improvement sub-sequent to its damage'
destruction or condemnation, a valid easement on the surface and for subsurface
support below such surface and for the maintenance of same, so long as it stands,
shail ana does exist for such incidental encroachment'
Utility 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
porrions ortl," co--on Interest community that are designated 'lYliliav lasemenl_
Lr "Drainage Easement" on the Plat or any Supplemental Plat' Utility Easements
may be uJed for the installation, operation, maintenance, repair, removal or
,"piu."-"rt of underground utilities and irrigation water lines and related surface
fatiHties. Drainage Easements may be used for the installation, operation'
maintenance, repaii, removal or replacement of drainage systems and facilities'
Except as may oiherwise 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, resled andior relandscape any area disturbed by the exercise 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.
Btanket Emergency Services Easement. There is hereby created, granted and
reserved for the rr." und br*frt of all police, sheriff, fire protection, ambulance and
other similar emergency agencies or persons, now or hereafter serving the Common
Interest community urrd
-lt. owners and occupants, a perpetual, non-exclusive
blanket Emergency services Easement over, upon, along and across all streets,
39
Section 7.4
Section 7.5
Section 7.6
Section 8.1
properties and areas within the Common Interest Community, for use in the lawfulperformance of their duties.
Easements Deemed Created. AII conveyances of Lots and Association property
hereafter made, whether by Declarant or oiherwise, shall be deemed and construed
to grant and reserve all of the easements referred to in this Article 7 and elsewherein this Declaration and in any Supplemental Declaration, even though no specific
reference to such easements appears in the conveyancing instruments.
. Owners oflots that are subject to any
easements created by this Declaration, a Supplemental Declaration, or a .ecordei
Plat, or to any existing ditch easements, shall acquire no right, title or interest in any
cables, conduits, mains, lines, or other equipm"rrt o. facililies or improvements thatmay be installed upon, over or under the easement area by a beneficiary of said
easement rights. Moreover, Owners and Occupants of Lots that are subject to any
such easements are hereby prohibited from constructing any improvements upon the
easement areas, altering or obstructing the flow of any *at"r oidruinage thereon, orlandscaping the same, in any manner that might intirfere with the fit and proper
exercise of said easement rights by any beneficiary thereof. Finally, said Ownirs andOccupants are hereby further prohibited from violating any of tfr" restrictions
relating to the use of the easement areas as may be set forth in ihis Declaration or inany supplemental Declaration. Any owner or occupant violating any of these
restrictions shall be obligated to remove the offending improvement or landscaping
and to restore the surface ofthe area to its original
"ordition, orotherwise to remed!
the violation, at the owner's cost and expense, within 30 days following a writte;
request therefor from any easement beneficiary. If said Ownlr or Occupant fails tocomply with the request in a timely manner, the Association shall have the right to
enter ufon the Owner's Lot to perform the necessary work and may assess the costs
thereof against the Owner and the Owner's Lot in the form of a Reimbursement
Assessment.
Recorded Easements and Licenses. In addition to the easements described in thisArticle 7 and elsewhere in this Declaration, the recorded easements and licenses
appurtenant to or included in the Common Interest Community are set forth on the
Plat.
ARTICLE VIII
ASSOCIATION
Association. The Association has been formed as a Colorado nonprofit corporation
under the Colorado Nonprofit Corporation Act to manage the affaiis of the iommon
Interest Community. The Association shall serve as the goveming body for all ofthe
owners and occupants for the protection, improve-"nt, ult"*iion, maintenance,
40
Section 8.2
Section 8.3
repair, replacement, administration and operation of Pinyon Mesa, the levying and
collection 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, ternl and qualifications of the members of the Board shall be fixed in
the Articles of Incorporation or the Bylaws. A quorum shall be deemed present
throughout any meeting of the Board if persons entitled to cast at least fifty percent
(50ol0, of the votes on the Board are present at the beginning of the meeting or grant
it.i,pro*y as provided in C.R.S. Section 7-128-205(4). with the exception of
matters that may be discussed in executive session, as set forth in Section 38-33'3-
308(3-7) of the Act, all regular and special meetings of the Board oI 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 examination by all Members of the Association or their representatives.
The Board shall have all of the powers, authority and duties granted or delegated to
itby the Act, this Declaration, the Articles orBylaws. Except as provided in the Act,
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 fo, -unug.-"nt of the affairs of the Association' If appointed
by Declarant, in the ierformanci of their duties, the members of the Board 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
iach 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
4t
Section 8.4
with respect 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 tifle io a
Lot, and may not otherwise be separated from ownership of a Lot.
Voting Riehts of Members. Each Lot in the Common Interest Community shall be
entitled to one (l) vote in the Association, i.e., one (l) vote per Ownerzlvlember.
Occupants of Lots shall not have voting rights. If title to a Lot is owned by more
than one (l) Person, such Persons shall collectively vote their interest as a single
vote. If only one ofthe multiple Owners of a Lot is present at a Association meetiig,
such Owner is entitled to cast the vote allocated to that Lot. If more than one of thi
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. There is
majority agreement if any ofthe multiple Owners casts the vote allocated to that Lot
withoutprotestbeing madepromptly to the personpresiding overthemeeting by any
of the other owners of the Lot. In the event of a protest being made by orre-o. 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 Act, and except as may otherwise be
provided in the Bylaws, a quorum is deemed present throughout any meeting of the
Members of the Association ifPersons entitled to cast at least fifty fercent (5-O%) of
the votes in the Association are present, in person or by proxy, at the beginnini of
the meeting.
Provided a quorum of Members entitled to vote is present in person or by proxy, the
affirmative vote of a majority ofthe Members so present shall constituteliproval of
any matter voted upon unless a different number is required on a particular matter
by the Act, 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 tle 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
7.4 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 orpurports to be revocable without
notice. A proxy shall terminate eleven (l t) months after its date, unless a different
termination date is otherwise set forth on its face.
42
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 quorum is present, may remove any
member of tn. Board with or without cause, other than a member appointed by
Declarant.
Section 8.5 period of Declarant Control of Association. Declarant shall have and hereby
,.r"*., th" po*., to appoint and remove, in its sole discretion, the:nembers of the
Board during the period commencing upon the recording of this Declaration and
terminating no laier than the earlier of (a) sixty (60) days after conveyance of
sevenry-fi;e percent (75%) of the Lots that may be created to Owners other than
Declaiant; orlU; t*o (2) years after the last conveyance of a Lot by the Declarant 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:
( I ) 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 least one
( I ) 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 fifty percent !59y0
of the Lois that may be created to Owners other than Declarant, not less than thirty-
three 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
Associatior, th" Decl,arant 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 may give
its upprorul or disapproval in its sole discretion and option, and its disapproval shall
invalidate any such u.tion by the Board or the Association. Not later than the termination
ofthe period of Declarant Control ofthe 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 officeis, with such Board members and officers to take office upon
election. pursuant to Section 38-33.3-303(9) ofthe Act, within sixty (60) days afterOwners
other than Declarant elect a majority of the members of the Board, Declarant shall deliver
to rhe Association all property 6f tn" Owners and of the Association held or controlled by
Declarant, including, without limitation, the following items:
43
(a) The original or a certified copy of the recorded Declaration as amended, the
Association's Articles oflncorporation, Bylaws, minute books, otherbooks and records, and
any Rules and Regulations which may have been promulgated;
(b) An accounting for Association funds and financial statements from the date
the Association received funds and ending on the date the Period of Declarant Conffol ends.
The financial statements shall be audited by an independent certified public accountant and
shall be accompanied by the accountant's letter, expressing eithei 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 accountant,s ability to
attest to the fairness of the presentation of the financial information in conformity with
generally accepted accounting principles and the reasons therefor. The expense ofthi audit
shall not be paid for or charged to the Assobiation;
(c) The Association funds or control thereof;
(d) 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;
(e) All insurance policies then in force, in which the Owners, the Association,
or its directors and officers are named as insured persons;
(f) Copies of any certificates of occupancy that may have been issued with
respect to any improvements comprising the Common Interest Community;
(g) Any otherpermits 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 Associatlon;
(h) Written warranties of the contractor, subcontractors, suppliers, and
manufacturers that are still effective;
(i) A roster of Owners and Occupants and Mortgagees and their addresses and
telephone numbers, if known, as shown on the Declarant's records;
0) Employment contracts in which the Association is a contracting party; and
(k) 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.
Section 8.6 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)
44
Section 9.1
Section 9.2
Section 9.3
takes office, may be terminated without penalty by the Association at any time after
the Board elected by the Owners pursuant to said Section 38-33'3-303q.] tal(es
office, upon not lesi than ninety (90) days notice to the other party: (i) Any
management contract, employment contract or lease of recreational orparking areas
or facilities; (ii) any othei contract or lease between the Association and Declarant
or an affrliate 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. The Association shall be obligated under all prwisions of the Plant
berelopment Agreement and the rules and regulations of the Spring Valley
Sanitation District. Further, the Association shall be the successor and assign to that
water Tap Assignment and water Delivery Agreement dale_d
-
day of June,2006,
by and betw""r, Elk Springs Homeowners Association, Red canyon watercompany
urrd Pinyo, Mesa Develofment, LLC. Upon such assignment, the Association shall
become obligated to perform and shalf be entitled to receive the benefit of all
provisions oisuch Water Tap Assignment and Water Delivery Agreement.
ARTICLE IX
POWERS AND DUTIES OF ASSOCIATION
General Powers and Duties of Association. The Association shall have and may
exercise all of the po*"^ una rights and duties of a colorado corporation formed
under the Colorado Revised Nonprofit Corporation Act, and all of the powers and
duties provided for in the Act including those enumerated in section 38-33.3-302 of
the Act, as such laws may be amended from time to time, subject only to the
limitations upon such po*.r, ", are contained in this Declaration' More specifically,
and without ii-iting ihe generality of the foregoing, the Association shall have all
of the powers and duties necessary (i) for the administration, management,
gor"*ur"" and operation of the Common Interest Community and the Association,
(ii) to own, operate, improve, maintain, repair, manage, lease, encumber' and
otirerwise 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 Act and/or under the provisions of this Declaration and of any Supplemental
Declarations.
Power to Grant Easements. The Association shall have the power to grant access,
.rtrtity, arui*ge, irrigation, and such other easements upon, over, across or under
Association froperfy as 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 Property. The Association shall have
the power to convey, or subject to a security interest, portions of the Association
froierty if Owners Lntitled to cast at least sixty-seven percent (67%) of the votes in
45
the Association, including sixty-seven percent (670/o) of the votes allocated to LoB
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 securit5r interest, Association property must be
evidenced by the execution of an agreement, in the same manner as a deed, by the Association. The
agreement must speci$r 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. fire Association, on behalf ofthe Owners, may contract to convey an interest in an Association Property, but the contract is notenforceable against the Association until approved, executed and ratified fursuant to this Section9'3. Thereafter, the Association shall have all the.powers necessary and appropriate to effect the
conveyance or encumbrance, including the power tb execute deeds or otherlnstruments. Unless in
compliance with this Section 9.3 any purported conveyance, encumbrance, judicial sale, or othertransfer of Association Property is void. A conveyan." o,
"r.u-brance of Association property
pursuant to this Section 9.3 shall not deprive any Lot of its rights of (i) access, ingress and egressto the Lot, and (ii) support of the Lot. A conveyance or encumbrance of Association fropertypursuant to this Section 9.3 shall not affect the priority or validity of pre-existing encumbrances.
Section 9'4 G"n"rrl Po*"t to Ptorid" S".ri.us und Fa.ilitie. to O*ru... The Association
shall have the power, but not the obligation, to acquire, construct, operate, manage,
maintain, repair and administer services and facilities for the benefii of the O*ners,
or som€ 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 monumints),lighting, (including
seasonal lighting), interior and perimeter fencing, landscape *ullr,landscapin!
services and facilities, noxious weed control, drainage facilities, including retentioi
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 availablefor use by the Owners. The Association may enter into such agreements 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 distriJts created to
provide such services.
Section 9.5 . 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, orthrough one ormore Supplemental Declaraiions, which shaliprovide 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
46
Section 9.6
Section 9.7
Section 9.8
overhead expenses of the Association, and shall contain reasonable provisions
assuring thaithe obligation to pay for such services shall be binding upon any heirs,
fersona"l representati;"r, ,u.rlrrors and assigns of the Owngr or 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.
Power to Charge for Special Association Property Uses and Special Association
S"rri"*Jl" Rssociation shall have the power to establish reasonable admission or
otfr"r f"", 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 scheiules of charges and fees adopted from time to time by the Board.
Power to Acquire Propertv and construct Improvements. The Association may
u"qrrir., hold, encumbir and/or convey any right, title or interest in or to real or
personal property, including Improvements. The Association may construct
i*pror"*.nfr on Association Property and may demolish existing Improvements
thereon.
Power to Adopt Rules and Regulations. The Association may adopt, amend,
*p""lf"d *for". ,*t t"*onubl" Rules and Regulations as the Executive 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 Commtn Interest Community ("Rules and Regulations")' Any
.u"t R t", 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 efiective Rules and Rigulations shall be made available to each Owner and
Occupant upon request and payment of the reasonable expense of copying the same'
Each Owner and Occuput t luna ail other Persons who are authorized users of
Association Property) shall comply with such Rules and Regulations, and each
Owner shall see thai Occupantt "lui*irg 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'
Power to Contract u'ith Employees. Agents. Contractors, Districts' Consultants
,rd Mun"g"rr. The Association shall have the power to contract with, and/or toSection 9.9
47
Section 9.10
gmploy and discharge employees, agents, independent contractors and consultants,
including lawyers and accountants, and special districts, to perform any of theresponsibilities of the Association under this Declaration, including without
limitation maintenance responsibilities. The Association shali also have-the power
to retain and pay for the services of a manager or managers, which -uyi" u,affiliate of Declarant, to undertake any of the administrative or managerial
responsibilities for which the Association may have responsibility unaei this
Declaration, to the extent deemed advisable by the Association, and may delegate
any of its duties, powers, or functions to any such manager. Notruithrtunairgiry
delegation to a manager of any duties, powers, or functions of the Associatioi, the
Association and its Board shall remain ultimately responsible for the performance
and exercise of such duties, powers, and functions.
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, b-utonly following the affirmative vote of the Owners of Lots to *hi"t at least fiftylor"
(51) percent of the votes in the Association are allocated, at a duly-cailed meeting
of the Members of the Association.
Section9.ll Duty to Accept Property and Facilities Transferred b!, Dectarant. The
Association shall accept title to any real property, or interesis in real property,
including any Improvements and personal property thereon, and including waterrights and related facilities, transferred to the Association by Declarant, orDeclarant'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 licenser to .rr". Except as may
otherwise be approved by the Executive Board, any property or interest in p.op"rty
transferred to the Association by Declarant or its ir"""sr-o.r or assigns rfruff ULwithin the boundaries of the Common Interest Community; provided, however, that
Declarant shall be entitled to transfer and convey the benefitial 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 property transferred to the Association by Declarant shall, exceptto the extent otherwise specifically approved by resolution of the Board, be ffansferred to the
Association free and clear of all monetary obligations, liens and encumbrances (other than the lienofproperty taxes and assessments not then due and payable), but shall be subjectio the terms of this
Declaration, and easements, covenants, conditions, restrictions, and equita6le servitudes or other
encumbrances of record or otherwise in existence. Except as otherwise specifically approved byresolution of the Board, no property or interest in property transferred to the association UyDeclarant shall impose upon the Association any obligation to make monetary payments to
Declarant or any affiliate of Declarant, including, but not Iimited to, any purchase price, rent, charge,
or fee.
48
Any Improvements orpersonal property transferred to the Association by Declarant shall be
in good working order, ordinary wear andiear excepted, and at the time of transfer Declarant shall
n1uk" uny ,rpui6 reasonably riquired to bring the transferred property into good working order.
Subject tnty to the foregoing, the Association shall accept all properties transferred to it by
Deciarant intheir "Wh"rri., As Is" condition, without recourse 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,
inctuaing without limitation warranties of merchantability, fitness for a particular purpose, or
workmanlike construction'
Section 9.12 Duty to Manage and Care for Association Propertv. The Association shall
.urug", operate-, care for, maintain, repair and replace all Association Property and
keep th" **" in a functional, clean and attractive condition for the benefit and
enjoyment of the Owners.
Section 9.13 Duty to Pay Taxes. The Association shall pay any taxes and assessments levied
upon Association 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 may accrue
with respect thereto, if the contest of such taxes is unsuccessful.
Section 9.14 Duty to Keep Association Records. The Association shall keep financial records
in sufficient detail to enable the Association to carry out its responsibilities under this
Declaration and to comply with the requirements of the Act, including, but not
limited to, current ,""oidr of paid and unpaid Assessments for each Lot. All
financial and otherrecords ofthe Association shall be made reasonably available for
examination by the Owners and the authorized agents of the Owners.
Section 9.15 Duty to Support Design Review Committee. The Association shall take such
actions, provide such funds, and do such other things as may be necessary or
appropriate from time to time to support and assist the Design Review Committee
in the performance of its responsibilities under this Declaration, and shall cooperate
with said Committee to the fullest extent possible in such matters.
Section 9.16 Insurance. Commencing not later than the time of the first conveyance of a Lot to
u person other than Declarant, the Association shall maintain and keep in effect at
all times the following types of insurance, and the cost of said coverage shall be paid
by the Association as a Common Expense:
(l) Casualty Insurance. To the extent reasonably available, property
insurance on all Association Property, including but not limited to Improvements and
49
personalty, owned or leased by the Association, and on all property that must become
Association Property. Such insurance shall be forbroad form covered causes ofloss,
including casualty, fire, and extended coverage insurance including, if available at
reasonable cost, coverage forvandalism and malicious mischief and, ifavailable and
if deemed appropriate, coverage for flood, earthquake, and war risk. Such insurance
shall, to the extent reasonably obtainable, be for the full insurable replacement cost
of the insured property, less applicable deductibles at the time the insurance is
purchased and at each renewal date, exclusive ofland, excavation, foundations and
other items normally excluded from property policies.
(2) Liability Insurance. Comprehensive general liability insurance
against claims and liabilities arising in connection with the ownership, existence, use,
maintenance or management of tie Association property, and tovering public
liability or claims of liability for injury to persons and/orproperry, and death of any
person or persons, and, if the Association owns or operates motor vehicles, public
liability orclaims ofliability forbodily injury (including death) andproperry damage
arising as a result of the ownership and operation of motor vehicles. Such liability
insurance for other than motor vehicle liability shall, to the extent reasonably
obtainable, (a) have limits of not less than Five Million Dollars ($5,000,000.00) per
person and Five Million Dollars ($5,000,000.00) per occurrence; (b) insure the
Board, the Design Review Committee, the Association and its officers, the manager,
if any, and their 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, maintenance or management of
Association Property; (e) cover claims of one or more insured parties against other
insured parties; (0 be written on an occurrence basis; and (g) shall name as
additional insureds such other parties as may be required by specific agreements.
(3) Contractual Liability Insurance. To the extent reasonably available,
conffactual liability insurance covering such contractual obligations and liabilities,
indemnifications, hold harmless agreements, and agreements to defend, as the
Association may have or be a party to from time to time, with coverage of at least
Two Million Dollars (s2,000,000.00) or such greater amount as the Board shall
determine to be appropriate from time to time.
(4) Fidelity Bonds. To the extent reasonably available, fidelity bond
coverage against dishonest acts on the part ofdirectors, officers, managers, trustees,
agents, employees or volunteers responsible for handling funds belonging to or
administered by the Association. If funds of the Association are handled by a
management agent, then fidelity bond coverage may also be obtained for the officers,
employees, or agents thereof handling or responsible for Association funds. The
fidelity bond or insurance must name the Association as the named insured and shall
be written to provide protection in an amount no less than the lesser of (a) one-half
50
times the Association's estimated annual operating expenses and reserves, (b) a sum
equal to three (3) months aggregate Regular Assessments, plus reserves, as
calculated from the current Budget of the Association; or (c) the estimated maximum
amount of funds, including reserves, in the custody of the Association (and its
management agent) at any one time. In connection with such coverage, an
appropriate endorsement to the policy to cover any person who serves without
compensation shall be added if the policy would not otherwise cover volunteers.
(5) Worker,s compensation. A Worker's compensation policy, if
necessary, to meet the requirements of law.
(6) Directors and Oficers Liability Insurance. Directors and officers
liability insurance with coverage of at least Two Million Dollars ($2,000,000.00) or
such gieater amount as the Board shall approve for all Association, Board and
Design Review Committee directors, officers, members and managers, for any and
all errors and/or omissions and other covered actions that occur during their tenure
in office or employment. This insurance coverage shall be mandatory.
(7) Ofher Insurance. Such other insurance in such amounts as the Board
shall deiermine, from time to time, to be appropriate to protect the Association or the
Owners, or as may be required by the Act.
(8) General Provisions Respecting Insuran ce. Insurance obtained by the
Association may contain such deductible provisions as good business practice may
dictate. Ifthe insurance described is not reasonably available, or ifany policy of
such insurance is canceled or not renewed without a replacement policy therefor
having been obtained by it, the Association 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 9.17(a) and 9.17(b) above shall provide that
(i) each Owner is an insured Person under the policy with respect to liability arising out of such
Owner's interest in the Association Property or membership in the Association; (ii) the insurer
waives its rights of subrogation under the policy against the Association, each Owner, and any
Person claiming by, throufh, or under such bwner or any other director, agent, or employee of the
foregoing; (c) no act or omission by any Owner, unless acting within the scope of such Owner's
uuttirity on behalf 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*n", covering the same risk covered by the policy, the Association's policy shall be the primary
insurance. An insurer that has issued an insurance policy for the insurance described in Sections
9.17(a)and 9.17(b) 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 insuier issuing the policy may not cancel or refuse to renew it until thirty (30) days after notice
of the proposed cincellation or nonrenewal has been mailed to the Association, and each Owner
51
and holder 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.|7(a)above must
be adjusted with the Association, but the insurance proceeds for that loss shall be payable to any
insurance trustee designated for that purpose, or otherwise to the Association, and rot to *y holdei
of a security interest. The insurance trustee 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 38.33.3-313(9) of the Act, the proceeds must be disbursed first forlhe repair or restoration
of the damaged property, and the Association, Owners, and Iienholders are not entitled to receive
payment of any portion of the proceeds unless there is a surplus of proceeds after the property has
been completely repaired or restored or the Common Interest Community is terminated.
The Association may adopt and establish written nondiscriminatory policies and procedures
relating to the submittal 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 benefittirg to11 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 its 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 insured 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 "uo.ri values of the
Association Property and in light of the possible orpotential liabilities of the Association and other
insured parties. The aforementioned 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.
Furthermore, to the extent reasonably available, insurance policies obtained by the
Association shall contain the following provisions:
(i) The coverage afforded by such policies shall not be brought into
contribution orproration with any insurance which may be purchased by an Owner,
Occupant or Mortgagee.
(ii) The conduct of any one or more owners or occupants shall not
constitute grounds for avoiding liability on any such policies.
52
(iii) Each policy must contain a waiver of any defenses based on co-
insurance or on invalidity arising from the acts of the insured.
(iv) A "severability of interest" endorsement shall be obtained which shall
preclude the insurer from denying the claim of anOwner or Occupant because of the
tonduct or negligent acts of the Association and its agents or other Owners or
Occupants.
(v) Any "no other insurance" clause shall exclude insurance purchased
by Owners, Occupants or Mortgagees.
(vi) coverage must not be prejudiced by (i) any act or neglect of owners
or Occupants when .rJh u"t or neglect is not within the control of the Association,
or (ii) any failure of the Association to comply with any warranty or condition
r.guriioj any portion of the Common Interest Community over which the
Association has no control.
(vii) Coverage may not be canceled or substantially modified without at
least thirty (30) days (ot suctr lesser period as the Association may reasonably deem
appropriate) prior written notice to the Association'
(viii) Any policy of property insurance which gives the carrier the right to
elect to restore damage in tieu of a cash settlement must provide that such election
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.
A recognition of any insurance trust agreement entered into by the
(x) Each hazard insurance policy shall be written by ahazard insurance
carrierwhich has a financial rating as designatedinBest's Key Rating Guide ofClass
VI or better, or if such rating service be discontinued, an equivalent rating by a
successor thereto or a similaisuch 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 ottain insurance coverage, as stated herein, neither the
Association nor any 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
insurance, or ifihi appropriate insurance is not obtained because such insurance
coverage is not reasonably obtainable on the Association's behalf, or if the amount
of insurance is not adequate, and it shall be the responsibility of each Owner and
(ix)
Association.
53
Section 9.17
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.
( I 0) Master Premiums . Premiums for insurance policies purchased by the
Association and other expenses connected with acquiring such insurance shail be
paid by the Association as 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 ownir or
Occupant, may at the Executive Board's election, be assessed against ihat particular
Owner and his Lot as a Reimbursement Assessment.
(l l) Insurance Claims. The Association is hereby irrevocably appointed
and authorized, subject to the provisions contained herein, to adjust all ctaims a.ising
under insurance policies purchased by the Association and to execute and deliver
releases upon the payment of claims, and to do all other acts reasonably necessary
to accomplish any of the foregoing. The Executive Board has full and complete
power to act for the Association in this regard, 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 herein, all insurance policies
purchased by the Association shall be for the benefit of and ury pro"i"ds of
insurance received by the Association or any insurance trustee shall be held or
disposed of in trust for the Association, the owners, or the occupants, as their
interests may appear.
( I 3) Other Insurance to be Carried by Owners . Insurance coverage on the
furnishings and other iterns ofpersonal property belonging to a Owner or Oicupant,
public liability insurance coverage upon each Lot, and casualty insurance "or"*g"on the Improvements constructed on Lots, shall be the responsibility of the Own-er
or Occupant of the Lot. No Owner or Occupant shall maintain any insurance,
whether on its Lot or otherwise, which would limit or reduce the insurance proceeds
payable under the casualty insurance maintained by the Association in the event of
damage to the Improvements or fixtures on Association properfy.
Damage to Common Interest Community. Any portion of the Common Interest
Community for which insurance is required under Section 38-33.3-313 of the Act
which is damaged or destroyed must be repaired or replaced promptly by the
Association unless: (i) the Common Interest Community is terminited; (ii)-repairor
replacement would be illegal under any state or local statute or ordinance governing
health or safety; (iii) sixty-seven percent (67%)of the owners, including o*r"., o1
every Lot that will not be rebuilt, vote not to rebuild; or (iv) prior to the ionveyance
54
of any Lot to a person other than Declarant, a Mortgagee on the damag.ed portion of
the Common Interest Community rightfully demands all or a substantial part of the
insurance Proceeds.
The cost of repair or replacement in excess of insurance proceeds and reserves is a Common
Expense. If the entiie Common Interest Community is not repaired or replaced, the insurance
proceeds attributable to the damaged Association Property must be used to restore the damaged area
to a condition compatible with G remainder of the Common Interest Community, and, except to
the extent that other persons will be distributees, the insurance proceeds attributable to Lots that are
not rebuilt must be distributed to the Owners of those Lots, or to lienholders, as their interests may
appear, and the remainder of the proceeds must be distributed to all Own-ers or lienholders as 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 or other adversity or dlsaster, the insurance proceeds, if sufficient to reconstruct or repair the
damage, shall be applied by the Association to such reconstruction and repair' If the insurance
proceeds with respect to such Association Properry damage or destruction are insufftcient to repair
and reconstruct the damage or destruction, the Association may levy a Special Assessment in the
aggregateamount of suchieficiency, or if any Owner or group of Owners is liable for such damage'
may levy a Reimbursement Assessment against the ownerorgroup of owners responsible therefor,
and shall proceed to make such repairs or reconstruction. Such Assessment shall be due and payable
as provided by resolution of the Board, but not sooner than sixty (60) days after written notice
thereof. The Assessment provided for herein shall be a debt of each Owner assessed and a lien on
his Lot, and may be enforced and collected in the same manner as any Assessment Lien provided
for in this Declaration. If the entire damaged Association Property is not repaired or replaced, tt
insurance proceeds attributable to the damaged Association Property must b-e used to restore the
damaged area to a condition compatible with the remainder of the Common Interest Community'
No distributions of insurance procleds shall be made unless made jointly payable to the Owners and
first Mortgagees of their respective Lots, if any'
section g.l g Limited Liability. Neither the Association nor its past, present or future offtcers or
dir..tor., ,or any other employee, agent or committee member of the Association
shall be liable to any Ownei 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 of legal
counsel, certiied 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 carrieA by the Association for such purPoses shall not be
adequate, the Owners severallyagree to indemnifu 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.
55
Section 10.1
Section 10.2
ARTICLE X
ASSESSMENTS
Assessment obligation and Lien. Decrarant, for each Lot, shall be deemed to
covenant and agree, and
-each
Owner, by acceptance of a deed therefor (including apublic trustee's or sheriff s deed), whether or not it shall be so expressed in urry .u-"h
deed or other instrument of conveyance, shall be deemed to covinant and agiee, to
pay to the Association: ( I ) Regular Assessments or charges, (2) Special Assess-ments,
and (3) Reimbursement Assessments, such assessmints to -be
established and
collected as hereinafterprovided (collectively, the "Assessments"). No Owner shall
have any right to set-off against an Assessment any claims that the Ownermay have
or claim to have against the Association. The Assessments, together with interest,
late charges, costs, and reasonable attorneys' 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 withoui 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 reuaonubl" uuomeys, fees,
shall also be the joint, several and personal obligation of each Person who was an
Owner of such Lot at the time when the Assessment became due. Upon the transferof title to a Lot, the transferor and the transferee shall be jointly, severally and
personallyliable forall unpaid Assessments and othercharges due to theAssociation
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 3g-33.3-
316 of the Act 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, attorneys, fees,
fines and interest charged by the Association pursuant to the Act 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 instalimint 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
Iien are instituted within six (6) years after the full ,-orrt ofAssessments becomes
due.
Lien Superior to Homestead and Other Exemptions. An Assessment Lien shall
be superior to any homestead exemption now or hereafter provided by the laws of
the State ofColorado orany exemption now orhereafterprwided by the laws of the
Section 10.3
56
United States. The acceptance of a deed subject to this Declaration shall constitute
awaiverofthehomesteadunaunyotherexemptionasagainstsaidAssessmentLien.
Section 10.4 Priority of Lien. An Assessment Lien is prior to all other liens and encumbrances
on a Lot, except as follows:
(l)Liensandencumbrancesrecordedbeforetherecordationofthis
Declaration;
(2)AsecurityinterestontheLotwhichhaspriorityovgral|othersecurity
interests on the Lot and which was recorded before the date on which the Assessment
sought to be enforced became delinquent. An Assessment Lien is prior to the
,""urity irt"rest described in the preceiing sentence to the extent of an amount equal
to the Regular Assessments (basid on a Budget adopted by the Association pursuant
to Section 9.6 below) which would have become due, in the absence of any
acceleration, during the sii 1i) months immediately preceding institution by the
R..o"iution'or any-party r,orairg a lien senior to any part of the Association lien
, created under this Article rX oi an action or a nonjudicial foreclosure either to
enforce or to extinguish the lien;
(3)Liensforrealestatetaxesandothergovernmentalassessmentsor
charges against the Lot; and
(4)AsmayotherwisebesetforthintheAct.Thepriorityofmechanics,
and materialmen's liens is not affected by the Act'
This Articre rX does not prohibit an action or suit to recover sums for which this Articre IX creates
a lien or prohibits the Association rro* tuting a deed in lieu of foreclosure' Sale or transfer of any
Lot shall not affect the lien for an Assessment'
Section 10.5 Perfection of Lien. The recording of thisDeclaration constitutes record notice and
perrection of the statutory lien. -No
lrtlher recordation of any claim of lien for
Assessments is required; ho*"r"r, a claim may be recorded at the Association's
option, in which event costs and atto*eys' feis incurred in connection with the
preparation and filing of such claim shall be assessed against the Lot as a
Reimbursement Assessment'
57
Section 10.6 Regular Assessments.
(l) A RegularAssessment shall bemade annuallyagainst each Lot, based
upon an annual Budget prepared by the Board, for purposeJ of paying (i) the annualcosts of operating and administering the Associatlon and-aI jher Common
Expenses, (ii) reasonable reserves forcontingencies, replacements, and otherproperpu{poses, (iii) the costs of services rendered or expenditures incurred UV tf,"Association to or for less than all Lots, and (iv) such other matters as may bereasonably determined by the Board to be the subject of a Regular Assessment;
(2) Regular Assessments shall be allocated equally between all Lots inthe Common Interest Community, except that any Common Expense or portion
thereof that in the judgment of the Board benefits fewer than all of m" Lots shall be
assessed exclusively against the Lots benefitted. If Common Expense liabilities arereallocated,Common Expense Assessments and any installmenfthereofnot yet dueshall be reallocated in accordance with the reallocated Common Expense liabilities.
(3) Regular Assessments shall be tevied on a calendar year basis, exceptthat the initial Regular Assessment period shall commence on the first day of thecalendar mortth or quarter in which the first Lot is conveyed by Declarant to a person
other than Declarant. Regular Assessments shall be paid in installments on amonthly, quarterly or semi-annual basis, as the Board may determine from time totime, and shall be due either on the first day of each calendar month or on the firstday ofeach calendar year quarter (January l, April l, July I and October l), or on
the first day of a semi-annual period (e.g., January I, Julyi ) as appropriate. Unlessand until changed to a monthly or semi-u-ual system by the Btard, Regular
Assessments shall be due and payable on the first day of each calendar quarter. AnyOwner acquiring a Lot between installment due datei shall pay u p.o *tu share of the
immedi ately preceding installment.
(4) The Board shall fix the amount ofthe RegularAssessment, using theBudget procedure described below, at least thirty (30) days before the end of eachcalendar year. Wriften notice of the Regular Assessment shall be sent to eachOwner. Failure of the Board timely to fix and levy the RegularAssessments foranyyear or to send a notice thereof to any Owner shall not relieve or release any Owneifrom liability for payment of Regular Assessments or any installments thereof forthat or subsequent years as soon as the Board levies the Regular Assessment andprovides notice thereof. If a duly adopted Budget is amended during the calendaryear, the Board shall provide written notice to the Owners of any
"h-urrg",
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 priorto the due date thereof a written notice of the amount of the ,e*i q.rartirty 1o,monthly or semi-annual, as the case may be) installment ofRegularAsslssment that
58
Section 10.7
Section 10.8
is due from such Owner, and the date on which such installment is due pursuant to
Section 9.6(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 Act, any surplus funds
remaining after payment of or provision for Association expenses and any
prepayment of or provision for r.r.*", shall be carried forward as a credit against
the next year's Budget.
Association Budget. commencing in-, and during the last three (3)
months of each year thereafter, th; Board shall prepare or cause to be prepared an
operating buagei lttre "Budget") for the next calendar year. The Budget shall provide
for the allocation of any rrfot". funds remaining from any previous Budget period'
The annual Budget may provide for a Special Assessment in any calendar year, if
considered necessary oi uppropriate by the Board. Alternatively, the Board may at
any time adopt a special tiuOget that provides for a Special Assessment' Within
thirty (30) days after adoption of any proposed Budget for the Association, the Board
shalimaii, by ordinary fiist class maif, oiotherwise deliver, a sunrmary of the Budget
to all the Owners ura tnuU set a date for a meeting of the Owners to consider
ratification of the Budget not less than fourteen ( I ) nor more than sixty (60) days
after the mailing or oth-er delivery of the summary. Such meeting may, but need not
be, concurrent;ith the annual meeting of the Mernbers as provided in the Bylaws'
Unless at that meeting seventy-five percent (75%) of all Owners reject the Budget,
the Budget shall be ,utifi"d, whether or not a quorum of Owners is present' In the
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 Budgetproposed
by the Board.
If the Board considers it necessary or appropriate, a duly adopted Budget may be
amended during the calenda. y.ur by ihe Board, provided the same notice and
ratification procedure is followed for the amended Budget as is required for the
annual Budget.
Special Assessments. In addition to the Regular Assessments and Reimbursement
Assessments authorized in this Article IX, the Board may levy, in any assessment
year, a special Assessment applicable to that year only for the purpose of defraying,
In whole or in part, the cost of uny construction, reconstruction, repair, maintenance
or replacement of capital improvements (including related fixtures and personal
p.op.rty and includini, without limitation, irrigation systems), to or upon or serving
the Common lnteresi Community, or for excess reconstn'lction costs or other
extraordinary expenses, oI to acquire Association Property, or for funding any
operating Aencittf tne Association. Special Assessments shall be allocated in the
59
Section 10.9
same manner 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 the Board in the notice given to the Owners of such Special
Assessment, which due date shall be no earrier than thirty (30) days after the iirrirgof such notice. Any Special Assessment for an Improvimeni or other
"*p"nAitorIwhich in the judgment of the Board will benefit fewer than all of the Lots stratt onty
be levied against the Lots benefitted. If fewer than all of the Lots will be subject tothe Special Assessment, then such Special Assessment shall be allocated equally
amongst those Lots.
Reimbursement Assessments. In addition to the Regularand Special Assessments
authorized hereunder, the Board may levy against any owner o, b*n".., at any time
and from time to time, a Reimbursement Assessment for purposes of reimbursing the
Association for all costs and expenses incurred by it in eniorcing any provision ofor in remedying any violation of this Declaration, the Articles, Bylawi, Rules and
Regulations or Design Guidelines, or any approvals granted by thl Design Review
committee, by such ownerorowners, theiroccupan(s), orthiiragents, employees
or contractors. Reimbursement Assessments may also be made by the Boardfoiany
other purposes for which this Decraration provides for the levying of a
Reimbursement Assessment. Finally, and in addition to the foiegJing, a
Reimbursement Assessment may also be'levied in the form of a reasonuUl"-nr"
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 irovided with
Notice and Hearing. Reimbursement Assessments shall be due and iayable to the
Association on the due date fixed by the Board in the notice given tothe owne(s)
of such Reimbursement Assessment, which date shall be no earlier than thfuty (3bi
days after the giving of such notice.
Section 10.10 Effect of NonPayment of Assessments: Remedies of the Association. Any
Assessment or portion or installment thereof which is not paid when due (or foi
which a bad check is issued) shall be deemed delinquent and ihall bear interest from
and after the due date at the rate of interest set by the Board from time to time, which
shall not be less than twelve percent (12%) nor more than twenty-one percen t (Zl%)
per year, and the Board may also assess a late charge (and./or a bad theck chargej
thereon. The Board may also elect to accelerate the installment obligations of any
Regular Assessment for which an installment is delinquent. The delinquent Ownei
shall also be liable for all costs, including attorneys' fels, which may be incurred by
the Association in collecting a delinquent Assessment, which colleltion costs shall
be added to the delinquent Assessment. The Board may, but shall not be required to,
record a Notice of Delinquent Assessment or charge against any Lot as to which an
Assessment or charge is delinquent. The Notice shall be executed by an officer of
the Board, and shall set forth the amount of the unpaid Assessment tr charge, the
name of the delinquent owner and a description of the Lot.
60
The Assessment Lien may be foreclosed by the Association in the same manner as
a mortgage on real property. The Association shall be entitled to Purchase the Lot
at foreclo'sure. The-Association may also bring an action at law against the Owner
personally obligated to pay the deiinquent Assessment and/or foreclose the lien
against ,uiA O*nrr's Lot in the discretion of the Association. No Owner may
exempt himself or otherwise avoid liability for the Assessments provided for herein
by abandonment of the Lot against which the Assessments are made' where
Assessments that are due from any Owner are more than ninety (90) days delinquent,
the Board may temporarily suspend any or all Association services orbenefits to the
delinquent Owner and his Lot until all delinquent Assessments are fully paid.
In any action by the Association to collect Assessments or to foreclose a lien for
unpaid Assessments, the court may appoint a receiver to collect all sums alleged to
be due from the Owner prior to or during the pending of the action. The court may
order the receiver to pay any sums held by the receiver to the Association during the
pending of the action to the extent of the Association's Regular Assessments'
section 10.11 statement of unpaid Assessments. The Association shall furnish to an owner or
,o"t O**rt A"rignee or to a holder of a security interest or its designee upon
written request, dellvered personally orby facsimile transmittal orby certified mail,
first class postage prepaii, return ieceipt requested, to the Association, a written
statement s"ttinE forttrttre amount of unpaid Assessments currently levied against
such Owner's IJot, whether delinquent or not. The statement shall be furnished
within fourreen (14) days after ieceipt of the request and is binding on the
Association, the Board, and every owner. If no statement is furnished either
delivered personally or by facsimile transmission or by certified mail, first class
postage prepaid, return receipt requested, to the inquiring party, then the Association
shall have no right to assert u li"orrpo, the Lot for unpaid Assessments which were
due as ofthe date ofthe request'
Section 10.12 Assessments for Tort Liability. In the event of any tort liability againstthe
Association which is not covered completely by insurance, each Owner shall
contribute for the payment of such tiatitity as a Special Assessment' The
Association may, however, require a larger contribution from fewer than all Owners
under any legal tr equitable principles regarding liability for negligent or willful acts
or omissions.
ARTICLE XI
EMINENT DOMAIN
Section l1.l Definition of Taking. The term "taking", os used in this Article X, shall mean
.ond.rrr*tion by .rnirant domain or sale under threat of condemnation'
6l
Section I 1.2
Section I 1.3
Taking of Lots. If a Lot is acquired by eminent domain orpart of a Lot is acquired
by eminent domain leaving the owner with a rernnant whicir may not practicaily orIawfully be used for any purpose permitted by this Declaration, the award must
include compensation to the Owner for that Lot and its allocated interest in and to
the Association. Upon acquisition, unless the decree otherwise provides, that Lot,sallocated 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 Property. otherwise, ifpart of a Lot is acquired by eminent domain, theaward must compensate the owner for the reduction in value of the Lot.
Miscellaneous. The court decree shall be recorded in Garfield County. Thereallocations of allocated interests pursuant to this Articte shall be confirmei by an
amendment to the Declaration prepared, executed, and recorded by the Association.
Amendment of Declaration and plat. This Declaration and the plat may be
amended pursuant to Section 38-33 .3-217 of the Act. Under the Act, 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 v hereof, (b) for purposes of correcting clerical, typographica'i ortechnical errors, or (c) to comply with the requirements, standards, oi gula^eunes 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 Act also pror:idisthat the Declaration may be amended by the Association in certain defined
circumstances. Otherwise, and subject always to any provisions of this Declarationrequiring the consent of Declarant and this Declaration (including the plat) may be
amended only by the vote or agreement of owners to which rno." thu, fifty perlent(50%\ of the votes in the Association are allocated. Any amendments to Flats thatwere originally approved by the county shall also r"qui." county approval. No
amendment shall be effective to change, limit, impair,."dr". or eliminate any right
ARTICLE xII
GENERAL PROVISIONS
Section l2.l Duration of Declaration. The term of this Declaration shall be perpetual.
Section l2'2 Termination of Common Intprest Community. The Common Interest Community
may be terminated only by the agreement of (i) Owners to which at least eightypercent (80%) of the votes in the Association are allocated, and (ii) the holders of allFirst Mortgages on Lots. In the event of such termination, ttre piovisions of Section
38-33.3-218 of the Act shall apply.
Section 12.3
62
Section 12.4
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 Act provides that except to the extent
expressly permitted or required by other provisions of the Act (e.g., permitted
Oeclarant Lr Association amendments), no amendment may (i) create or increase
special Declarant rights, (ii) increase the number of Lots, or (iii) change the
b-oundaries 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
.A=ssociation are allocated,lncluding sixty-seven p ercent(670/o) of the votes allocated
to Lots not owned bY Declarant.
Further, Section 38-33.3-217(4.5) of the Act provides that except to the extent
.*p.".riy permitted or required by other provisions of the Act, no amendment may
change it. u..t to which any Lot is restricted 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.
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 Declaration shall be duly executed by the President
and Secretary of the Association and Recorded in the office of the Clerk and
Recorder of Garfield 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. Every Owner and Occupant of a Lot in the Common
Irt"*J Community shall fully and faithfully observe, abide by, comply with and
perform all of the covenants, conditions and resffictions set forth in this Declaration,
the Articles, Bylaws, the Pinyon Mesa P.U.D' Plan, the Design Guidelines and all
approvals granied by the Design Review Committee, as the same or any ofthem may
be-amended from time to time. In addition to any other rights or remedies that may
be provided to any Person under the terms and provisions of this Declaration,
Declarant (for so long as it holds any of the rights set forth in Article V hereof), the
Association through iis Board, the Design Review Committee as to matters involving
(i) Improvements within the common Interest Community, (ii) the Design
Guid"lir"r, or (iii) any other matters arising under Article IV hereof, or with respect
to which the Design Review Committee is otherwise expressly given enforcement
authority under this Declaration, and every owner (except an owner that is
63
delinquent in the payment of Assessments hereunder) shall have the right, acting
alone or together with others having such right, to enforce, by any proc""airg at laior in equity, any or all of the covenants, conditiorrr, .ert i"iions, asseslments,
charges, liens, servitudes, easements and otherprovisions now or hereafter imposej
by this Declaration, the Articles, Bylaws, the Design Guidelines, and appiovals
granted by the Design Review Committee.
Such enforcement rights shall include without limitation the right to bring aninjunctive action for any form of injunctive relief available undei ColoradJlaw
(including specific performance), or an action for damages, or both. Injunctive relief
may include, without limitation, orders to stop work, orders to rernove improvements
constructed in violation hereof orders to compel performance, and any other orders
appropriate under the circumstances.
The Board shall have the further right (a) to levy and collect, after Notice and
Hearing, reasonable fines forthe violation of any of the foregoing matters, (b) to levy
and collect a Reimbursement Assessment against any ownir, (i) to enter'rpon *y
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 * "*"ig"n"yexists, in which case without notice), without liability to the- owner o, ocJupant
thereof, to enforce or cause compliance with such matters, at the cost and expinse
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 temporarily cut off any or all Association
services or benefits to the subject Owner or Occupant and his LLt until the violation
is cured.
In any action brought under this Section 11.4, the prevailing party shall be entitledto an award of its reasonable attorneys' fees and costs incurred 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 11.4 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 anyof 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, Dlclarant,
the Association and/or the Design Review Commitree at least thirty (30) days prioi
written notice of the aggrieved Owner's complaint and the opportunity toresolvl the
problem during that rhirry (30) day period.
64
And funher 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 oiuny tuitding or Improvement because of the violation of the terms of
any such buildin! restriction, .rri.r. 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 shouid 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
e.ro"ifiu G holair of a First Mortgage on any Lot in the Common Interest
CommunitY shall be entitled to:
(l) written notice from the Association that the owner ofthe 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)Receivewrittennoticeofthelapseofanyinsurancethatthe
Associaiion 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
specifiially provided in this Declaration, any notice permitted orrequired to be given
. hereunder shall be in writing and may be deiivered either personally, orby 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 deemld to have been delivered two (2) business days after
a copy of tn" .u-. has been posted in the first class U.S. Mail with adequate postage
affixed, addressed to the receiving party at the address last registered by such party
with the Association, or in tt " *r" 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
"ont
ury o, on th" Plat, nothing contained in this Declaration shall be deemed to be
65
Section 12.8
Section 12.9
or to constitute a dedication of all or any part of the Common Interest Community
to the public or to any public use.
. The provisions ofthisDeclaration shall be Iiberally construed to effectuate their purpose of creating acommon and general plan for the development, improvement, enhanc"**t,
protection and enjoyment of the common Interest community, and to the exteni
possible, shall be construed so as to be consistent with the Act. In the event that any
of the terms and conditions of this Declaration are determined to be inconsistent witir
the Act, the Act shall control. Notwithstanding anything to the contrary in this
Declaration, no rights or powers reserved to Declarant heieunder shafl exteed the
time limitations upon or the permissible extent of such rights or powers under theAct, and in the event any of such reserved rights or po*.r, are determined to be
inconsistent with the Act, the related provisions shall not be invalidated but shall bemodified to the extent required to comply with the Act.
Conflict With Plats. In the event of any conflict or inconsistency between theprovisions of this Declaration and any Plat, including the Plat notes thereon, the
provisions of said Plat or Plat notes, as the case may be, shall govern and control and
this Declaration shall automatically be amended, but only tolhe extent necessary toconform the conflicting provisions hereof with the proririom of said plat or Flat
notes.
Section 12.10 No Express or Implied Corenants on Lands Not Annexed. Nothing in this
Declaration shall create, or be deemed to create, any express or implied covenants
upon or with respect to any real property or interest therein not actually annexed to
the common Interest community in the manner provided herein.
Section l2.ll Violations Constitute a Nuisance. Any violation of any provision, covenant,
condition, restriction or equitable servitude contained in thi; ieclaration, whetherby act or omission, is hereby declared to be a nuisance and may be enjoined or
abated, whether or not the relief sought is for negative or affirmative action, by any
Person entitled to enforce the provisions ofthis Declaration. This provision does notlimit the remedies that may be available under this Declaratio, o, ut law or in equity.
Failure of the Association to bring enforcement action to correct any violation of this
Declaration shall not constitute a waiver of or estop the Associatiln from bringinga future or subsequent enforcement action to correct such violation or any otheisimilar violation.
Section 12.12 Declarant's Disclaimer of Representations and Warranties. No representations
or warranties of any kind, express or implied, have been given o. -ud" or shall be
deemed to have been given or made by Declarant or its agents or employees in
connection with the Common Interest Community or any portion theriolor any
Improvements thereon, its or their physical condition, ,oring, compliance witir
66
applicable laws, fitness for intended use or operation, adequacy or availability of
utilities, or in connection with the subdiviiion, sale, improvement, operation,
mainteiance, cost of maintenance, taxes or regulation thereof' unless and except as
,r,arru"'pecincauysetforthinwritingherein,inanyregistration.statementor
purchase and sale agreement executed by Declarant, or in any closing document
related thereto. Furthermorr, no ,u"t repiesentations or walTanties have been given
or made or shall be deemed io have been given or made by Declarant or its agents
or employees that the plans pr"t"*rv envi-sioned for the complete development of
the Common Interest Commlnity.u, o, will be carried out' or that any land now
owned or hereafter r.qrir"a iy Seclarant is or will be subjected to this Declaration
or that .iv-rr.t, land (whetheior 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 bi Declarant, or iriany closing document related
thereto.
Sectionl2.l3Captions.CaptionsgiventovariousArticlesandSectionshereinarefor
convenience only and are nofintenaed to modiff or affect the meaning of any of the
substantiveprovisionshereofandshallnotbeconsideredininterpretinganyofthe
Provisions hereof'
section 12.14 Singular Includes plural. unless the context requires a contrary construction' as
employed in this Declaration ihe singular shall include the plural and the plural the
singular; and the masculine, feminine or neuter shall each include the masculine'
feminine and neuter'
Section 12. 1 5 Remedies cumurative. Each remedy provided under this Declaration is cumulative
and not exclusive'
Section 12. I 6 Costs and Attorneys, Fees. In any action or proceeding involving.the interpretation
or enforcement of uny proririon tf tfri, Deilaration, ihe prevailing party shall be
entitled to fecover its reasonable attorneys' fees and costs incurred in connection
therewith.
sectionl2.l7 GoverningLaw;Jurisdiction. Thelawsofthe-countyandofthestateofcolorado
shall govern the interpretltion, validity, performanie, and enforcement of this
Declaration.AnylegalactionbroughtinconnectionwiththisDeclarationshallbe
commenced in the District Court foiEagle County, Colorado'.and by acceptance of
a deed to a Lot, each owner voluntarilf submits to the jurisdiction of such court'
Section 12.18 Severability. Any determination by any court of competent jurisdiction that any
prorffiFthis Declaration is invalid oiunenforceabloshall not affect the validity
orenforceabilityofanyofit.o,rr"tprovisionshereof' Whereanyprovisionofthis
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Declaration is alleged to be or declared by a court of competent jurisdiction to beunconscionable, Declarant shall have the right by amendmint to thi, Declaration toreplace such provision with a new provision, as similar thereto as practicable butwhich in Declarant's reasonable opinion would be considered not to beunconscionable.
Section 12.19 Disclaimer Resarding safery. DECLARANT AND THE ASSOCIATIONHEREBY DISCLAIM ANY OBLIGATION REGARDING THE SECURITYOF ANY PERSONS OR PROPERTY WITHIN THE COMMON INTERESTCOMMUNITY. ANY OWNER OF PROPERTY WITHIN THE COMMONINTEREST COMMUNITY ACKNOWLEDGES THAT DECLARANT ANDTHE ASSOCIATION ARE ONLY OBLIGATED TO DO THOSE ACTSSPECIFICALLY ENUMERATED HEREIN, OR IN THE ARTICLES OFINCORPORATION AND BYLAWS, AND ARE NOT OBLIGATED To DoANY OTHER ACTS WITH RESPECT TO THE SAFETY OR PROTECTIONOF' PBRSONS OR PROPERTY WITHIN THE COMMON INTERESTCOMMUNITY.
IN WITNESS WHEREoF, Declarant has executed this Declaration as of the day and yearfirst above written.
DECLARANT:
PINYON MESA INVESTMENTS, LLC, aColorado
limited liability company
John Elmore, Manager
PINYON MESA DEVELOPMENT, a Colorado
limited liability company
John Elmore, Manager
STATE OF COLORADO )
)ss
)COLINTY OF
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The foregoing instrument was acknowledged before me this day of
2006,by John Elmore as Manager of Pinyon Mesa Development, LLC and
Pinyon Mesh Investments, LLC, the Declarant.
Witness my hand and official seal.
My commission expires
Notary Public
F:\Cl ient\Elmore\Declaralion of Covernnts 2.wpd
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