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DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR PINON RANCH SUBDIVISION
THIS DECLARATION is made this 2nd day of June, 1998 by LIFESTYLE BUILDERS, INC., a Colorado Corporation (“Declarant”), which is the owner of all the real property described on the attached Exhibit A. ARTICLE 1 DEFINITIONS
Unless otherwise expressly provided in this Declaration, the following capitalized words and phrases, whenever used in this Declaration, shall have the meanings set forth in this Article 1. Section 1.1 Architectural Approval Authority. “Architectural Approval Authority” shall mean the Person, Committee or other entity responsible for architectural approval of Improvements, as described in Section 6.1 of this Declaration. Section 1.2 Assessment. “Assessments” shall mean the assessment imposed by the Association to pay the Common Expenses, as provided in Article 5 of this Declaration. Section 1.3 Association. “Association” shall mean Pinon Ranch Homeowners Association, a Colorado nonprofit corporation, its successors and assigns. The address of the Association shall be 1920 Vindicator Drive, Suite 209, Colorado Springs, Colorado, 80919; provided, however, that the Association may change its address from time to time by notice to the Owners, and the method of notice may include the recording of a notice of change of address in the real property records of El Paso, County, Colorado. (The address of the Association changed in 2000 until the present time as P.O. Box 50373, Colorado Springs, CO 80949). Section 1.4 Association Documents. “Association Documents” shall mean the various operative documents of the Association, whether recorded or adopted at this time or as the same have been or may be amended, modified, supplemented, or otherwise changed from time to time, all of which are Incorporated herein by this reference, and shall include the following: (a) the Articles of Incorporation of the Association; (b) the Bylaws of the Association; and (c) this
Declaration, including the exhibits and all Section 1.5 Board. “Board” shall mean the Board of the Directors of the Association. Section 1.6 Builder. “Builder” shall mean any Person (other than Declarant) who purchases one or ore Lots for the purpose of constructing a Residence or Residences for later sale to consumers. Any Person occupying or leasing a Lot for residential purposes shall cease to be considered a Builder with respect to such Lot immediately upon occupation of the Lot for residential purposes, notwithstanding that such Person originally purchased the Lot for the purpose of constructing a Residence for later sale to consumers. Section 1.7 Common Elements. “Common Elements” shall mean any real property, Landscaping and Improvements hereafter designated as Common Elements by Declarant in amendments to this Declaration or other instruments executed by Declarant and recorded in the real property records of El Paso County, Colorado. Generally, the Common Elements will consist of landscaped areas, street medians, trails, walks, and fences along the public street within Pinon Ranch Subdivision known as Mule Deer Drive, irrigation equipments and facilities within such areas, and entry monuments, walls, and features at the main entrances to Pinon Ranch Subdivision. Some of the Common Elements may be owned by the Association and some may be within public, rights-of-way dedicated to the City of Colorado Springs. Section 1.8 Common Expenses. “Common Expenses” shall mean any and all of the following costs and expenses: (a) the actual and estimated costs of care, management, operation, maintenance, repair, restoration and replacement of Common Elements; (b) the costs of insurance carried by the Association to insure the Common Elements; (c) the costs of establishing and funding a reasonable reserve for the repair and replacement of Common Elements; (d) the costs of management and administration of the Association, including, but not limited to, compensation paid by the Association to employees, managers, accountants, attorneys and other agents; (e) the costs of bonding of the members of the Board or officers, employees or agents of the Association; (f) the costs incurred by the Association in enforcing the provisions of this Declaration or collecting Assessments, including, but not limited to, court costs and attorney’s fees; and (g) any other costs or expenses incurred by the Association in connection with the Common Elements or reasonably related to the purposes of the Association, for the common benefit of the Owners. Section 1.9 Declarant. “Declarant shall mean Lifestyle Builders, Inc., a Colorado corporation, its successors and assigns. A Personal shall be deemed a “successor” or “assign” of Lifestyle Builders, Inc. as a Declarant only if specifically designated in a duly recorded instrument as a successor or assign of Declarant under this Declaration, and shall be deemed a successor an assign of Declarant only as to the particular rights or interests of Declarant under this Declaration that are specifically designated in the written instrument. Notwithstanding the foregoing, a successor to Lifestyle Builders, Inc., a consolidation or merger shall automatically be deemed a successor or assign of Lifestyle Builders, Inc., a Declarant under this Declaration. Section 1.10 Declaration. “Declaration” shall mean this Declaration of Covenants, Conditions, Restrictions and Easements for Pinon Ranch Subdivision, in its entirety, including all attached exhibits and all subsequent amendments. Section 1.11 Design Guidelines. “Design Guidelines” shall mean standards, rules, and guidelines applicable to Residence and Improvements that may be promulgated and adopted by the Architectural Approval Authority from time to time, as more particularly described in Section 6.2 of this Declaration. Section 1.12 First Mortgage. “First Mortgage” shall mean and refer to any unpaid and outstanding deed of trust, mortgage or other security instrument recorded in the real property records of El Paso County, Colorado, pertaining to a Lot and having priority of record over all other recorded liens except those governmental liens made superior by statute (such as general ad valorem tax liens and special assessments). Section 1.13 First Mortgagee. “First Mortgagee” shall mean and refer to any Person named as a mortgagee or beneficiary under any First Mortgage. Section 1.4 Improvements. “Improvements” shall mean all structures , objects and things and any appurtenances thereto or components thereof of every type or kind, including, but not limited to, buildings, outbuildings, swimming pools, patio covers, awning, painting or other finish material of any exterior surfaces of any visible structure, additions, walkways, bicycle and/or pedestrian trails, sprinkler pipers, garages carports, roads, driveways, parking areas, fences, screening walls, retaining walls, stairs, decks, fixtures, landscaping, hedges, windbreaks, planting, planted trees and shrubs, poles, signs, exterior tanks, solar equipment, and exterior air conditional and water softener fixtures. “Improvements” shall also mean an excavation fill, ditch, diversion dam or other thing or device that affects or alters the natural flow of surface waters upon or across ay Lot, or which affects or alters the flow of ay waters in any natural or artificial stream, wash or drainage channel upon or across any Lot. Section 1.15 Landscaping. “Landscaping” shall mean live plants or plant materials, wood chips, crushed stone, decorative rocks, mulch materials or other decorative materials on the ground or surface of any real property within Pinon Ranch Subdivision. For purposes of this definition, the word “Landscaping” shall include all other forms of the word Landscaping such as Landscape and Landscaped. Section 1.16 Lot. “Lot” shall mean a parcel of land subject to this Declaration that is platted as a lot in accordance with the subdivision ordinances of the City of Colorado Springs, which may be independently owned and conveyed and upon which one Residence is or may be constructed. Section1.17 Member. “Member” shall mean a member of the Association. Declarant is a Member and every other Owner is a Member. Membership in the Association shall be appurtenant to, and may not be severed from, ownership of a Lot. Section 1.18 Owner. “Owner” shall mean the Person, whether one or more, including Builders but excluding Declarant and the Association, owning fee simple title to a Lot as shown in the real property records of El Paso County, Colorado from time to time. Section 1.19 Person. “Person” shall mean a natural person, a corporation, a partnership, a limited liability company, a trust, a fiduciary acting on behalf of another person and any other legal entity. Section 1.20 Pinon Ranch Subdivision. “Pinon Ranch Subdivision” shall mean the real property described on Exhibit A to this Declaration. Section 1.21 Residence. “Residence” shall mean a building on a Lot seed or intended for use as a single-family dwelling. ARTICLE 2 GENERAL PROVISIONS
Section 2.1 Purposes of Declaration. This Declaration is executed and recorded (a) in furtherance of a common and general plan for Pinon Ranch Subdivision; (b) to protect and enhance the quality, vale, desirability and attractiveness of all property within Pinon Ranch Subdivision; (c) to provide for the ownership, maintenance and management of the Common Elements; (d) to provide for Assessments to pay the costs of owning, maintaining, managing and insuring the Common Elements; (e) to provide for architectural control; and (f) to define certain duties and rights of the Owners, Builders and Declarant. Section 2.2 Declaration. Declarant, for itself, its successors and assigns, hereby declares that Pinon Ranch Subdivision shall be owned, held, transferred, conveyed, sold, leased, rented, encumbered, used, occupied, maintained, altered, and improved subject to the covenants, conditions, restrictions, limitations, reservations, exceptions and other provisions set forth in this Declaration, all of which are declared to be a part of and in furtherance of a common and general plan of development, improvement, enhancement and protection of Pinon Ranch Subdivision. The provisions of this Declaration are intended to and shall run with the land and, until their expiration in accordance with Section 11.1 hereof, shall bind, be a charge upon and insure to the mutual benefit of (a) all of the property within Pinon Ranch Subdivision and each part of parcel thereof; (b) Declarant and its successors and assigns; (c) the Association and its successors and assigns; and (d) all other Persons having or acquiring any right, title or interest in any property that is or hereafter becomes part of Pinon Ranch Subdivision or any part of Parcel thereof or any Improvement thereon, ad their encumbrances, claimants, heirs, personal representatives, successors and assigns. Section 2.3 Exemption from Colorado Common Interest Ownership Act. Pinon Ranch Subdivision constitutes a “common interest community” in the nature of a “planned community” as those terms are defined in the Colorado Common Interest Ownership Act, Sections 38-33.3-101, et seg. Colorado Revised Statutes (the “Act”). However, as provided in Section 116 of the Act, Section 38-33.3-116, Colorado Revised Statutes, Pinon Ranch Subdivision is subject only to Sections 38-33.3-105, 39-33.3-106 and 38-33.3-107 of the Act, and not any other provisions of the Act, by virtue of the limitation on Assessments contained in Section 5.4(d) of this Declaration. Except as stated in the foregoing sentence, the Act shall not apply to this Declaration, the Association or Pinon Ranch Subdivision.
ARTICLE 3 COMMON ELEMENTS
Section 3.1 Use of Common Elements. Although most of the Common Elements will consist of Landscaped areas and appurtenant facilities along streets and are intended to be seen and enjoyed rather than actively used, the Owners shall have the rist to use and enjoy the Common Elements owned by the Association or located within public rights-of-way, such as trails and walkways, for the purposes for which they are intended. The Owners (other than the Owners of the Lot in question) shall not have the right to use any Common Elements located on a Lot, unless a separate valid easement for se by Owners exist. The Association may establish rules for the use and enjoyment of the Common Elements and any such rules shall be binding upon the Owners. Section 3.2 Maintenance of Common Elements. The Association shall manage, operate, care for, maintain, repair and replace the Common Elements and keep them in good, attractive and desirable condition for the enjoyment of Owners. In connection with its duty to manage and maintain the Common Elements, the Association shall have all rights and powers set forth in this Declaration, or in the Association’s Articles of Incorporation or Bylaws, as well as all rights and powers granted to nonprofit corporations by law or otherwise existing, and, in general, shall have all rights and powers to do anything that may be necessary or desirable to manage, maintain and care for the Common Elements and preserve the attractiveness, desirability and safety of the Common Elements. The Association shall obtain and keep in full force and effect at all times such insurance coverage as is reasonable for the Association’s business and as required by Colorado law.
ARICLE 4 ASSOCIATION OPERATION, DUTUES AND POWERS
Section 4.1 Association Structure. The Association has been formed as a Colorado corporation under the Colorado Nonprofit Corporation Act. The Association shall have the duties, powers ad rights set forth in this Declaration and in the Association’s Articles of Incorporation and Bylaws. As more specifically set forth hereinafter, the Association shall have a Board of Directors to manage its affairs. The Board of Directors shall be elected by its Members; provided, however, that the Declarant shall have the sole right to appoint the members of the Board of Directors for the period of time provided in Section 4.5. Section 4.2 Board of Directors. The affairs of the Association shall be managed by a Board of Directors. The number, terms and qualifications of the members of the Board of Directors shall be fixed in the Articles of Incorporation and Bylaws of the Association. Section 4.3 Membership in Association. Declarant and each owner shall be a Member of the Association. An Owner shall automatically be the holder of the membership appurtenant to such Owner’s Lot, and the membership shall automatically pass with fee simple title to the Lot. Declaring and each Owner shall have one vote in the Association for each Lot owned by Declarant or such Owner. Membership in the Association shall not be assignable separate and apart from fee simple title to a Lot. Other rights, privileges and matters affecting membership are contained in the Association’s Bylaws. Section 4.4 Voting Rights of Members. Members shall have the right to cast votes for the election of the Board of Directors and on such other matters to be voted on by the Members, as provided in this Declaration or the Association’s Bylaws. One vote is allocated to each Lot and Members shall have one vote for each Lot owned. If more than one Person is the Owner of a Lot, the vote allocated to that Lot may be divided fractionally among the Owners in any manner they agree upon, or equally among them if they are unable to agree; provided, however, that not more than one vote may be cast for any one Lot. Voting rights and procedures may be further defined in the Bylaws of the Association. Notwithstanding the foregoing, Declarant shall have the right to appoint the Board of Directors as set forth in Section 4.5. Section 4.5 Declarant’s Reserved Right to Appoint. Notwithstanding any contrary provision of this Declaration, the Declarant hereby reserves the right to appoint all members of the Board of Directors, at all times subsequent to the date of recordation of this Declaration, which right shall terminate upon the occurrence of the first of the following events: (a) December 31, 2008; (b) by
written notice from the Declarant to the (c) Upon
the date that is 60 days after Declarant Section 4.6 General Duties and Powers of the Association. The Association has been formed to further the common interests of the Members. The Association, acting through the Board or Representatives to whom the Board has delegated such powers, shall have the duties and powers set forth in the Association Documents and all duties and powers of non-profit corporations granted by law or otherwise existing, and, in general, the power to do anything that may be necessary or desirable to further the common interests of the members, to maintain, improve and enhance the Common Elements, and to improve and enhance the attractiveness, desirability and safety of Pinon Ranch Subdivision. Except as expressly otherwise provided in this Declaration, the Association Documents or by Colorado law, the Association shall act through the Board of Directors, without the vote or meeting of the Members, and the Board may exercise all rights, powers and interests of the Association. Section 4.7 Duty to Care for Common Elements. The Association shall manage, operate, care for, maintain and repair the Common Elements and keep the same in an attractive and desirable condition for the use and enjoyment of the Members, provided however, maintenance responsibilities for the Common Elements shall not commence until Assessments commence. Section 4.8 Duty to Maintain Insurance. The Association shall obtain and keep in full force and effect at all times such insurance coverage as is reasonable for the Association’s business and as required by Colorado law. Section 4.9 Power to Enforce Association Documents. The Association shall have the power to enforce the provisions of the Association Documents, and shall take such action as the Board deems necessary or desirable to cause compliance by each Member and other Person. Without limiting the generality of the foregoing, the Association shall have the power to enforce the provisions of the Association Documents by any one or more of the following means: (a) by entry upon any property within Pinon Ranch Subdivision, after notice to the Owner, without liability to the Owner or occupants thereof, for the purpose of enforcement of or causing compliance with the Association Documents; (b) by commencing and maintaining actions and suits to restrain and enjoin any breach of threatened breach of the provisions of the Association Documents, by mandatory injunction or otherwise; (c) by commencing and maintaining actions and suits to recover damages for breach of any of the provisions of the Association Documents; (d) by exclusion of any Member or other Person from use of any Common Elements as a penalty for any breach of the Association Documents by a Member or other Person, during the period that the breach continues; (e) by suspension of the voting rights for a Member during and for up to 60 days following any breach by such Member of the Association Documents, unless the breach is a continuing breach, in which case such suspension shall continue for so long as such breach continues; (f) by performing any duty of any Member or other Person or correcting any violation or breach of the Association Documents and obtaining, upon demand, reimbursement for all expenses related thereto; and (g) by exercising any right or remedy permitted by law or in equity. Section 4.10 Power to Employ Manager. The Association shall have the power to retain and pay for the services of a manager or managers to undertake any of the management of any functions for which the Association has responsibility under this Declaration to the extent deemed advisable by the Association, and may delegate any of its duties, powers, or functions to the manager. Notwithstanding any delegation to a manager of any duties, powers or functions of the Association, the Association and its Board of Directors shall remain ultimately responsible for the performance and exercise of such duties, powers and functions.
ARTICLE 5 ASSESSMENTS
Section 5.1 Obligation for Assessments. Each Owner (including Builders), for each Lot owned within Pinon Ranch Subdivision, by acceptance of a deed therefore or interest therein, whether or not it shall be so expressed in such deed, shall be deemed to covenant and agree to pay to the Association, in the manner, amounts and times prescribed in this Declaration, all Assessments described in this Article 5. The Assessments levied by the Association shall be used to pay Common Expenses incurred in connection with the ownership, management, maintenance, repair, replacement, and insurance of the Common Elements, as specifically provided in this Declaration. The Assessments shall be both a personal obligation of the Owner and a lien against his Lot as provided in this Declaration. Each Owner shall be jointly and severally liable to the Association for the payment of all Assessments attributable to him and/or his Lot. The personal obligation for delinquent Assessments shall not pass to an Owner’s successors in title or interest unless expressly assumed by them. No Owner may waive or otherwise escape personal liability for the payment of the Assessments provided for herein by non-use of the Common Elements, by abandonment or leasing of his Lot, or by asserting any claims against the Association, Declarant or any other Person. In addition to the Assessments, each Owner shall have the obligation to pay real property ad valorem taxes and special assessments imposed by Colorado Governmental subdivisions against his Lot. Notwithstanding any other provision of this Declaration, all property owned by Declarant or the Association or dedicated to and accepted by the City of Colorado Springs or other public or governmental authority shall be exempt from Assessments. Section 5.2 Declarant’s Obligation. Declarant is not obligated to pay Assessments. However, until Assessments are first levied by the Association pursuant to this Article 5, Declarant shall pay all Common Expenses. Furthermore, it during any year ending on or before December 31, 2000 the Assessments levied are not sufficient to pay all Common Expenses, Declarant shall pay to the Association the amount necessary to make up the shortfall. Section 5.3 Commencement and Rate of Assessments. (a) Assessments shall commence with respect to the Lots on January 1, 1999. The Owner of a Lot shall become responsible for payment of Assessments on this Lot as of the date that is the later of: (i) January 1, 1999; (ii) the date that the Lot is created by the recording of a subdivision plat in the real property records of El Paso County, Colorado, or (iii) the date that the Owner acquires title to the Lot. (b) Subject to the limitations contained in Section 5.4(a), 5.4(b) and 5.4(d), Assessments shall be sufficient to meet the expected Common Expenses. Assessments shall be allocated equally and uniformly among all Lots, so that each Owner is obligated to pay an equal Assessment for each Lot owned, once Assessments have commenced with respect to that Lot. Section 5.4 Maximum Assessments. (a) The maximum annual Assessment payable with respect to any one Lot, for calendar year 1999, which shall be the first fiscal year o f the Association, shall be no more than $120.00. (b) Subject to the limitations set forth in Section 5.4(d), effective with commencement of the second and each subsequent Association fiscal year, the maximum annual Assessment against each lot may, at the Board’s option, be increased for each fiscal year by the greater of: (i) the percentage increase, if any, in the Consumer Price Index published by the U.S. Department of Labor, Washington, D.C., for All Items and Major Group Figures for the Denver, Colorado Metropolitan Area (“Consumer Price Index”) for the one year period ending with the last month prior to commencement of the Association’s fiscal year for which the Consumer Price Index has been published at the time the Assessment is determined; or been published at the time the Assessment is determined; or (ii) 10 percent. The aforesaid annual increase in the maximum annual Assessment shall occur automatically upon the commencement of each Association fiscal year without the necessity of any action being taken with respect thereto by the Board unless it directs otherwise. In the event that the Consumer Price Index is not published, for whatever reason, then the increase in the maximum annual Assessment, as provided herein, shall be calculated by sing a substantially comparable index designated by the Board. (c) The Board may, at any time and from time to time, after consideration of the projected Common Expenses, fix the actual Assessment against each Lot in an amount less that the maximum; provided, however, that written notice of any change in the amount of the actual Assessment (whether to an amount less than or equal to the maximum) shall be sent to every Owner at least 30 days in advance of the date that payment of the changed is due. (d) Notwithstanding any other provisions of this Declaration, the total Assessments payable with respect to any one Lot, exclusive of optional user fees (if any) and any insurance premiums paid by the Association, may not exceed $300.00 for any one year. Section 5.5 Assessment Procedure. (a) No later than November 1, 1998, the Board shall set the total annual Assessment for 1999 based upon an estimated budget for the Common Expenses for 1999. No later than 60 days before the beginning of each fiscal year beginning after December 31, 1999, the Board shall set the total annual Assessment based upon an estimated budget of the Common Expenses for the following fiscal year. (b) After approval of the budget, the Board shall cause to be prepared, delivered or mailed to each Owner, at least 30 days in advance of the date payment is due, a payment statement setting forth the annual Assessment payable by that Owner for each Lot owned and stating the total of all annual Assessments payable with respect to all Lots. The annual Assessment shall be payable in advance on the first day of February unless the Board otherwise directs. The Board may require Assessments to be paid annually, semi-annually, quarterly or monthly. All payments of Assessments shall be due and payable, without any notice or demand, on the due dates declared by the Board. Assessments shall be applicable to all Lots, except as expressly provided in Section 5.1. Assessments shall commence as discussed in Section 5.3(a). Section 5.6 Fines. The Board may, subject to the provisions hereof, levy a fine against any Owner or Lot if the willful or negligent acts or omissions of the Owner or occupant of a Lot cause any violation of this Declaration or cause any loss or damage to the Association or the Common Elements or case an expenditure of funds in connection with the enforcement powers of the Association. Except for a default consisting solely of a failure to timely pay any Assessment which shall not require any notice and hearing, a fine shall be levied only after such notice and hearing as may be required by the Bylaws of the Association, if any. The amount of the fine shall be due and payable to the Association upon notice by the Board that the fine owes. Imposition or non-imposition of a fine shall not preclude this Association from pursuing simultaneously or subsequently all other legal or equitable rights and remedies. Section 5.7 Costs of Enforcement, Late Charges and Interest. If any Assessment or fine is not paid within 15 days after it is due, the Owner obligated to pay the Assessment may be additionally required to pay all costs of enforcement, including, without limitation, reasonable attorneys’ fees, court costs, witness expenses and all related expenses, and to pay a reasonable lat charge to be determined by the Board. Any Assessment that is not paid within 10 days after the date of any notice of default given under Section 5.8 shall bear interest from the due date at a rate determined by the Board, not to exceed the lower of 21 percent per annum or the maxim rate permitted by law, from the due date until paid. Section 5.8 Notice of Default and Acceleration of Assessments. If any Assessment or fine is not paid within 30 days after its due date, the Association may mail a notice of default to the Owner and to each First Mortgagee of the Lot who has requested a copy of such notice. The notice shall substantially set forth (a) the fact that the installment is delinquent; (b) the action required to cure the default; (c) a date not less than 20 days from the date of mailing of the notice by which such default must be cured; and (d) the failure to cure the default on or before the date specified in the notice may result in the foreclosure of the lien for the Assessment or fine against the Lot of the Owner. A default shall not be considered cured unless the past due sums collection expenses and all sums coming due through the date of payment are paid to the Association. If the delinquent Assessment and any collection expenses (including attorney’s fees), late charges or interest thereon, plus ay other sums due as of the date of payment, are not paid in full on or before the date specified in the notice, the Association, at is option, may enforce the collection of the Assessment or fine and all charges and interest thereon in nay manner authorized by law or in this Declaration Section 5.9 Remedies to Enforce Assessments. Each Assessment or fine levied hereunder shall be a separate, distinct and personal debt and obligation of the Owner against whom it is assessed. In the event of a default in payment of any Assessment, the Association may, in addition to any other remedies provided under this Declaration or by law, enforce such obligation by suit or by filing an foreclosure of a lien as provided in Section 5.10. Each Owner, by acceptance of a deed to a Lot, whether or not it is expressed in such deed, is deemed to covenant and agree to pay to the Association all Assessments, together with interest, late charges and expenses of collection or enforcement, including reasonable attorneys’ fees, and this covenant shall be charge on the land an d a continuing lien upon the Lot against which the Assessment is made. The lien created hereby shall exist from the date of each Assessment until all sums are paid, whether or not a Notice of Lien is filed in accordance with Section 5.10. Any judgment rendered in any action to enforce this Declaration or collect any amounts payable under this Declaration shall include any late charges, interest and other costs of enforcement against the defaulting owner, including without limitation, reasonable attorneys’ fees. Section 5.10 Lien to Enforce Assessments. The Association shall have a lien for any Assessments or fine (the “Lien”) levied against a Lot from the time the Assessment or fine becomes due. In addition to or in lieu of bringing suit to collect Assessments or fines, the Association may foreclose its Lien in the manner provided by law for the foreclosure of real estate mortgages and as provided in this section. The Association may elect (but is not required to) to file a claim of lien against the Lot of the defaulting Owner by recording a notice (“Notice of Lien”) substantially setting forth: (a) the amount of the claimed delinquency, (b) the interest and expenses of collection that have accrued thereon, (c) the legal description and street address of the Lot against which the Lien is claimed, and (d) the name of the record Owner of such Lot. Such Notice of Lien shall be signed and acknowledged by an Officer of the Association or other duly authorized agent of the Association. The Lien shall have priority over all other liens except liens recorded prior to the recording of this Declaration and except First Mortgages, and shall also be prior to any declaration of homestead rights recorded after the time that the Lot becomes part of Pinon Ranch Subdivision. The acceptance of a deed to a Lot subject to this Declaration shall constitute a waiver by the Owner of the homestead exemption as against said Lien. The Lien shall continue until the amounts secured thereby ad all subsequently accruing amounts are fully paid or otherwise satisfied. When all amounts claimed under the Lien, including, without limitation, all court costs, recording costs, filing fees and attorneys’ fees, have been fully paid or satisfied, the Association shall execute and record a notice releasing the Notice of Lien, if recorded, upon payment by the Owner of a reasonable fee as fixed by the Board to cover the cost of preparing and recording the release of the Notice of Lien. Unless paid or otherwise satisfied, the Lien may be foreclosed through a Colorado court of competent jurisdiction in accordance with the laws of the State of Colorado applicable to foreclosure of real estate mortgages (not including deeds of trust), or in any other manner permitted by law. The Association shall have the right and power to bid on the Lot at the sale and to acquire the hold, lease, and mortgage and convey the same. The Association shall be entitled to recover from the defaulting Owner all of the Association’s costs and attorney’s fees incurred in foreclosing a Lien. Section 5.11 Estoppels Certificates. Upon payment of such reasonable fee as may be determined from time to time by the Board, and upon the written request of any Owner or any Person which has, or intends to acquire, any right, title or interest in a Lot, the Association shall furnish a written statement setting forth the amount of any Assessments or other amounts, if any, due and then unpaid with respect to a Lot and the amount of any Assessment levied against such Lot that is not yet due and payable. Such statement shall, with respect to the Person to whom it is issued, if relied thereupon in good faith and without actual knowledge to the contrary, be conclusive against the Association. Section 5.12 No Offsets. All Assessments shall be payable in the amounts specified in the levy thereof, and no offset, abatement or reduction thereof shall be permitted for any reason whatsoever, including, without limitation, any claim that the Association or the Board is not properly exercising its duties and powers under this Declaration, or for inconvenience or discomfort arising from any activity of the Association, including the making of repairs or Improvements to the Common Elements, or because an Owner claims that a particular function funded by the Assessment does not benefit that Owner or for any other reason. Section 5.13 Working Capital and Reserves. The Association may require the Owner of a Lot, at or after the time when that Owner becomes obligated to pay Assessments under Section 5.3, to make a one-time, nonrefundable contribution to the Association of an amount not to exceed three times the monthly Assessment the, in effect for a Lot, which may be collected on the date of delivery of a deed conveying a Lot to the Owner or on a later date determined by the Board. All such contributions shall be maintained in a non-segregated working capital or reserve fund account for the use and benefit of the Association for, among other purposes, meeting unforeseen expenditures or purchasing additional equipment, property or services. The working capital or reserve fund contribution shall be in addition to all other Assessments, and shall not relieve the Owners from paying all Assessments as they come due.
ARTICLE 6 ARCHITECTURAL CONTROL AND LIVING ENVIRONMENT STANDARDS
Section 6.1 Approval Rights. Declarant shall act as the Architectural Approval Authority for all of Pinon Ranch Subdivision until (i) Declarant no longer owns any real property within Pinon Ranch Subdivision, and (ii) a Residence has been completed on every Lot within Pinon Ranch Subdivision and sold to an Owner, or until earlier time as Declarant assigns its rights and powers under this article 6 to a successor, which with respect to the particular rights and powers assigned. Declarant may assign any or all of it architectural approval rights to the Board, to a committee appointed by Declarant, or to one or more individuals designated by declarant. Each Architectural Approval Authority shall exercise the functions set including reviewing and approving plans for Improvements as provided in this Declaration. Section 6.2 Design Guidelines. The Architectural Approval Authority may, but is not obligated to, promulgate and adopt Design Guidelines for Improvements within Pinon Ranch Subdivision. During the period that is has an architectural approval rights, Declarant shall have the right to modify, supplement, rescind or replace any Design Guidelines at any time, in its sole discretion. Notwithstanding the foregoing, no modification to the Design Guidelines made by Declarant may result in a provision that contradicts or conflicts with any express provision of this Declaration, that is contrary to the general intent or purposes of this Declaration or that makes a change effective with respect to Improvements that have already been approved by the Architectural Approval Authority pursuant to Guidelines may regulate, among other things, the following matters: (a) Site Location: (i) location of a Residence on a Lot; (ii) orientation of a Residence to lot lines; (iii) site coverage; (iv) setbacks; and (v) disturbance of on-site vegetation. (b) Architectural Design: (i) building heights; (ii) exterior
materials and colors; (v) exterior lighting. (c) Site Accessories: (i) entrances to Lots and driveway layout; (ii) sidewalks on Lots; (iii) parking areas within Lots; (iv) fences; (v) placement and screening of satellite dishes (vi) patios, accessory building or other Improvements; (vii) basketball backboards and other play equipment. (d) Landscaping: (i) plant materials; (ii) amount of Landscaping required; (iii) preservation of vegetation; (iv) maintenance guidelines; and (v) irrigation systems. (e) Approval Processes: (i) documentation required for review and approval; and (ii) time periods for review and approval. All Improvements, including those within the Common Elements, shall be constructed or installed in compliance with the requirements of this Declaration and with any applicable Design Guidelines as they exist at the time of approval of plans pursuant to this Article 6. Section 6.3 Approval Required. No Improvement shall be placed, erected, installed or permitted to occur or exist on any Lot or on the exterior of any Residence, nor shall any construction be commenced on any Improvements, unless and until the plans ad specifications for such Improvements shall have been submitted to an approved in writing by the Architectural Approval Authority. Matters that require the approval of the Architectural Approval Authority include but are not limited to: (a) the construction, installation, erection or expansion of any Residence or any building, structure or other Improvements (as defined in Section 1.14); (b) the installation of Landscaping; (c) the grading, excavation, filling or similar disturbance to the surface of the land; and (d) any change or alternation of any previously approved Improvements, including but not limited to any changes or exterior appearance, finish material, color or texture. Section 6.4 Plans Submission. All plans, samples and other materials to be submitted to the Architectural Approval Authority shall be submitted in duplicate. The required scale of various kinds of plans shall be set forth in the applicable Design Guidelines, or, if there are no Design Guidelines, as directed by the Architectural Approval Authority. The plot plan in this required scale shall show the location of all buildings, drives, walks, fences and any other Improvements. Proposed new contours throughout the Lot and abutting street elevations on all sides shall be shown. Structure plans shall show all exterior elevations and shall indicate and locate on each elevation the materials to be used and designate each exterior color to be used by means of actual color samples. Section 6.5 Approval Process. (a) All action required or permitted to be taken by the Architectural Approval Authority and shall be in writing and any such written statement shall establish the action of the Architectural Approval Authority and shall protect any Person relying on the statement. The procedure for submitting requests and obtaining approvals shall be as set forth in the applicable Design Guidelines, provided that if there are no applicable Design Guidelines, the procedure shall be as set forth in Section 6.5(b). The Architectural Approval Authority may charge reasonable fees to cover expenses incurred in review of plans, samples and materials submitted pursuant to this Declaration. The Architectural Approval Authority shall be entitled to retain one copy of all approved plans as part of its files and records. (b) If there are no applicable Design Guidelines setting forth procedures for review and approval of plans, each Owner (who may act through an architect, contractor or other designated representative) ad Builder (referred to as the “Applicant”) shall comply with the following process in order to obtain approval from the Architectural Approval Authority for any Improvements: (i) The
Applicant shall request from the (ii) The
Applicant shall submit a set of (iii) The
Architectural Approval Authority (iv) Once
the Architectural Approval Authority (v) Approvals
of all plans and specifications (vi) If
a Builder obtains approval from the Section 6.6 Approval Standards. All Improvements to be constructed or installed within Pinon Ranch Subdivision must comply with the applicable Design Guidelines, if any, and this Declaration. In granting or withholding approval of matters submitted to it, the Architectural Approval Authority shall consider the intent and purposes of this Declaration, specific requirements and restrictions set forth in this Declaration and the specific standards and specifications set forth in any applicable Design Guidelines. The Architectural Approval Authority shall have the right to disapprove any plans, specifications or details submitted to it if it determines the proposed Improvement is not consistent with any applicable Design Guidelines or any provision of this Declaration; if the plans and specifications submitted are incomplete; or if the Architectural Approval Authority deems the plans, specifications or details, or any part thereof, to be contrary to the interest, welfare or rights of all or any part of Pinon Ranch Subdivision, the Association, the Owners or Declarant. If the Architectural Approval Authority believes there may be questions of structural integrity, it may, as part of the approval requirements, require certification of the final plans and specifications by a professional architect or engineer licensed in Colorado. The decisions of the Architectural Approval Authority shall be final and binding. Section 6.7 Land Use Approvals. Before submitting a request for approval of a subdivision plat or replat, a development plan, zoning or rezoning or any use or non-use variance to the City of Colorado Springs or other governmental agency, an Owner or Builder must submit his request to the Architectural Approval Authority for review and approval in accordance with this Article 6. Section 6.8 No Liability. The Architectural Approval Authority, whether Declarant or an assignee of Declarant, and persons who are members of the Architectural Approval Authority, shall not be liable for damages or otherwise liable to anyone submitting plans to them for approval, requesting any other approval or requesting a variance, or to any Owner by reason of mistake in judgment, negligence, nonfeasance or any act or omission in connection with the approval, disapproval or failure to approve any plans, specifications or variance. Approval by the Architectural Approval Authority shall not mean that plans and specifications are in compliance with the requirements of any local building codes, zoning ordinances or other governmental regulations, such approval shall not imply that the approved location of Improvements is compatible with the locations of utility lines that may exist on the Lot in question or on neighboring land, and such approval shall not imply any warranties or representations concerning the soils or other physical conditions on the property or the suitability of the approved Improvements in relation to soils or other physical conditions. It shall be the responsibility of the Owner or other Person submitting plans to the Architectural Approval Authority to comply with all codes, ordinances and regulations; to verify the locations of all utility lines, easements and property lines; to investigate soils and other physical conditions; and to construct Improvements accordingly. Section 6.9 Building and Grounds Conditions. Each Owner shall maintain the exterior of his or her Residence and all other Improvements in good condition and shall case them to be repaired as the effects of damage or deterioration become apparent. If the Owner fails to properly perform such maintenance, Declarant or the Architectural Approval Authority may, after giving 30 days written notice, effect such repairs and maintenance as it deems necessary in its judgment to maintain the standards of Pinon Ranch Subdivision. Entry to affect such repairs and maintenance shall not be deemed a trespass and the Owner shall be liable for any costs incurred in connection with the repairs and maintenance. Section 6.10 Garage Doors. Garage doors shall be kept closed except when being used to permit ingress or egress to or from the garage. Section 6.11 Maintenance Equipment. All maintenance equipment shall be stored in an enclosed building or otherwise adequately screened so as not to be visible from neighboring property or adjoining streets. Section 6.12 Clotheslines. All outdoor clothes poles, clotheslines and other facilities for drying or airing of clothing or household goods shall not be placed on any Lot except if approved by the Architectural Approval Authority and screened by a fence or shrubbery so as not to be visible from neighboring property or adjacent streets. Section 6.13 Swing sets and Play Areas. All swing sets, jungle gyms, slides and other similar Improvements shall not exceed a height of eight feet unless otherwise approved by the Architectural Approval Authority prior to construction or installation of such Improvements, and shall be situated on the Lot so as not to obstruct the view from neighboring Lots. Section 6.14 Refuse. No unsightly objects or materials, including but not limited to ashes, trash, rubbish, garbage, grass or shrub clippings, scrap material or other refuse or receptacles or containers thereof, shall be stored, accumulated or deposited outside or so as to be visible from any neighboring property or adjoining street, except during refuse collections. After a period of two weeks of continued violation of this Section 6.14, the Association or Declarant shall have the right to enter upon the Lot involved and remove such unsightly objects or materials at the expense of the Owner. Such an entry shall not be deemed a trespass and the Owner shall be liable for all costs incurred relative thereto. Section 6.15 Nuisances. No noxious or offensive activity shall be carried on upon any Lot or anything done thereon tending to case embarrassment, discomfort, annoyance or nuisance to the neighborhood. No offensive or hazardous activities may be carried on within any Lot or in any Residence. No annoying lights, sounds or odors shall be permitted to emanate from any Lot or Residence. Section 6.16 Sound Device. No exterior speakers, horns, whistles, bells or other sound devices except security devices used exclusively for security purposes shall be located, used or placed on any Improvement or within any Lot. Section 6.17 Weeds. All yards and open spaces and the entire area of every Lot on which no building has been constructed shall be kept free from plants or weeks infected within noxious insects or plant diseases and from weeds which in the reasonable opinion of the Association or Declarant are likely to cause the spread of infection or weeds to neighboring property and free from brush or other growth or trash which in the reasonable opinion of the Association or Declarant cases undue danger of fire. Section 6.18 Mowing and Pruning. In order to effect insect, weed and fire control and to prevent and remove nuisances, the Owner of any Lot upon which building has not been constructed shall mow, cut, prune, clear and remove from the premises unsightly brush, weeds, and other unsightly growth and shall remove any trash which may collect or accumulate on the Lot. Section 6.19 Grading Patterns. No material change may be made in the ground level, slope, pitch or drainage patters of any Lot as fixed by the original finish grading except after first obtaining the prior consent and approval of the Architectural Approval Authority. Grading shall be maintained at all times so as to conduct irrigation and surface waters away from buildings and so as to protect foundations and footings from excess moisture. Section 6.20 Transmitters. No electronic or radio transmitter of any kind other than telephones, garage door openers and remote control devices for televisions, stereos, video cassette recorders, toys and similar equipment shall be operated in or on any Improvement or Lot. Section 6.21 Animals. No animals except domesticated birds or fish and other small domestic animals permanently confined indoors and except an aggregate of three domesticated dogs or cats shall be maintained in or on any Lot within Pinon Ranch Subdivision and then only if kept as pets. No animal of any kind shall be permitted which in the opinion of the Association makes an unreasonable amount of noise or odor or is a nuisance. No animals shall be kept, bred or maintained within Pinon Ranch Subdivision for any commercial purposes. No dogs or other pets shall be chained outside for more than brief, non-continuous periods, or enclosed on a Lot outside of the Residence, except that dog runs or enclosures may be erected with the approval of the Architectural Approval Authority. Section 6.22 Parking of Vehicles. (a) No motor vehicles owned, leased, rented or used by Owners or household members shall be parked overnight on any street within Pinon Ranch Subdivision. (b) No boat, trailer, camper (on or off supporting vehicle), tractor, commercial vehicle mobile home, motor home, and towed trailer unit or truck shall be parked overnight on any street or within any Lot except in a completely enclosed building such as a garage, or unless screened in a manner approved by the Architectural Approval Authority. Pickup trucks having a ¾ ton or less manufactured rated capacity, with or without bed toppers, and passenger vans for the private use of the residents of a Residence shall not be considered trucks for purposes of the foregoing restrictions. Section 6.23 Inoperative Vehicles. No unused, stripped down, partially wrecked or inoperative motor vehicle or part thereof shall be permitted to be parked on any street or on any Lot in such a manner as to be visible at ground level from any neighboring property or street, unless fully screened in a manner approved by the Architectural Approval Authority. An unused vehicle shall be any vehicle which is not properly licensed or registered or has remained immobile for more than a week as determined by the Association. Section 6.24 Vehicle Repairs. No maintenance, servicing, repair, dismantling, sanding or repainting of any type of vehicle, boat, machine or device may be carried on except within a completely enclosed Improvement which screens the sight and sound of the activity from adjoining streets and from neighboring property. Section 6.25 Signs. The only signs permitted on any Lot or Improvement shall be : (a) one sign of customary size for offering of the signed property for sale or for rent; (b) one sign of customary size for identification of the occupant and address of the Residence; (c) multiple signs for sale and administration purposes installed by, or with the permission of Declarant during development; (d) signs as may be necessary to advise of rules and regulations or to caution or warn of danger; and (e) such signs as may be required by law. Except for permitted signs, there shall not be used or displayed on any Lot or Improvements, any signs or any banners, streamers, flags, lights or other devices calculated to attract attention in aid of sale or rental. All permitted signs must be professionally painted, lettered and constructed. Section 6.26 Antennae; Satellite Dishes. No aerials, antennae, satellite dishes, microwave systems or other devices for reception or transmission of radio, television or other electronic signals, or other roof projections, including but not limited to lightning rods and weather vanes, shall be maintained on the roof or any other exterior location of a Residence, other Improvement or Lot, without the prior approval of the Architectural Approval Authority. Satellite dishes may be installed on Lots only with the approval of the Architectural Approval Authority ad only if they comply with any applicable Design Guidelines. The provisions of this Section 6.26 shall not restrict the installation of antennae or satellite dishes to the extent any such restrictions conflict with the applicable federal law.
ARTICLE 7 CONSTRUCTION RESTRICTIONS AND REQUIREMENTS
Section 7.1 Improvements. No Improvement shall be erected within Pinon Ranch Subdivision except Residence and other Improvements that have been approved by the Architectural Approval Authority. No Improvement other than a Residence and no trailer, tent, or other similar or dissimilar temporary quarters may be used for living purposes. No other Improvement may be placed on any Lot before completion of the Residence upon such Lot except with the permission of the Architectural Approval Authority. Section 7.2 Construction Type. All Residences and other buildings constructed or erected on any Lot shall be new. No building previously used at another location nor any building or Improvement originally constructed as a mobile dwelling may be moved onto a Lot except as expressly provided in Section 7.5 for temporary construction, sales or administration buildings. Section 7.3 Completion of Work. A Residence shall not be occupied in the course of original construction until substantially completed. All construction work shall be prosecuted diligently and continuously from the time of commencement until fully completed. Section 7.4 Construction Completion. All Residences must be substantially completed within one year after the commencement of construction, and Landscaping of a Lot and other Improvements on a Lot outside of a Residence must be completed in accordance with the plans approved by the Architectural Approval Authority within six months after substantial completion of the Residence, except where such completion is impossible or would result in great hardship de to strikes, fires, national emergency or natural calamities and except if the Architectural Approval Authority approves a longer period of construction due to unusual circumstances. For purposes of this Section 7.4, “commencement of construction” for a Residence is defined as the obtaining of necessary building permits, the excavation of earth for a foundation, and the pouring of a foundation, and for all other Improvements is defined as the undertaking of any visible exterior work. If construction is not completed within the above time periods or such later time approved by the Architectural Approval Authority, or if construction shall cease for a period of 60 days without permission of the Architectural Approval Authority, the Architectural Approval Authority will give the Owner of the Improvements involved written notice of such fact, and if construction on such Improvement is not diligently commenced within 30 days after such notice, the unfinished Improvement or unfinished portion thereof shall be deemed a nuisance and shall be removed forthwith by and at the cost of the |
