COVENANTS AND RESTRICTIONS OF THE ROSE MOUNTAIN ESTATES SUBDIVISION This declaration, made this th day of April, by the TDHE, developer and manager of the Rose Mountain Estates Subdivision, Snake River Tribe, New Mexico, herein referred to as Declarant. Declarant is the developer and manager of a subdivision project located in the South half of Section, Township North, Range East, N.M.P.M. within the Snake River Tribe Grant, XXX County, New Mexico on the Pueblo of XXX, New Mexico, more particularly described in the Legal Description attached to these Covenants and Restrictions as Exhibit A and made a relevant part hereof. Declarant hereby declares that all of the properties described above shall be held, conveyed subject to the following easements, restrictions, covenants, and conditions, which are for the purpose of protecting the value and desirability of the present natural beauty, the natural growth setting and surrounds of the subdivision, and which shall run with, the real property and be binding on all parties having any right, title or interest in described properties or any part thereof, their heirs, successors and assigns, and shall insure to the benefit of each owner thereof. These easements, restrictions, covenants, and conditions shall create mutual equitable servitudes on each of the lots of the properties and a privity of contract with reference thereto between the various owners thereof, their heirs, personal representatives, successors and assigns. ARTICLE 1 DEFINITIONS Declarant TDHE (TDHE), its successors, and assigns if such successors or assigns should acquire more than one undeveloped lot from the declarant for the purpose of development. Upon completion of the development and sale of all lots to owners, the owners may form a Homeowners Association and in such case, the Homeowners Association shall be the Declarant.,. Page 1
Lessee A person, also referred to as a tenant, renting a home from the Owner under a rental agreement. Lot Any plot of land shown on the subdivision plat. TDHE The TDHE. References to TDHE in these covenants may be interpreted to mean the Declarant in the event TDHE or its successors ceases to exist. Owners The record owner, whether one or more persons or entities, of a leasehold estate to any lot which is a part of the properties, excluding those having such interest merely as security for the performance of an obligation. Properties Certain real property described above and such additions that may be acquired within the jurisdiction of the Rose Mountain Estates Subdivision. Structure Building, fence, wall, primary structure, outbuilding, additions, patio, deck, ponds, parking area, garage, carport, curb and gutter, streets, satellite dish, solar collectors, landscaping and vegetation. ARTICLE 2 ARCHITECTURAL CONTROL Section 2.1 TDHE Approval Required No structure shall be commenced, erected or maintained upon the properties, nor shall any exterior addition to, or alterations be made until the plans and specifications showing the nature, kind, shape, height, materials, and location of the same have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by TDHE. TDHE has approved housing plans for the properties that owners may utilize. Section 2.2 Preliminary Approvals Persons who anticipate construction of improvements within the properties or contemplate purchase of a lot within the subdivision may submit preliminary sketches of such improvements to TDHE for informal and preliminary approval or,. Page 2
disapproval pending such time as complete architectural plans are submitted and approved or disapproved. Section 2.3 Architectural Plans TDHE shall disapprove any architectural plan submitted to it which is not sufficient for it to exercise the judgment required of it by the declaration. Section 2.4 Action by TDHE TDHE shall act to approve or disapprove all architectural plans submitted to it within thirty (30) days of submission. Any disapproval shall be accompanied by a written statement of the reasons thereof. Where TDHE has failed to issue a written decision within thirty (30) days, the person submitting such plans shall provide written notice to the TDHE of his or her intent to proceed. In the event that no written decision of TDHE is received within ten (10) days of said written notice, approval will be deemed to have been obtained and this section will be deemed to have been fully complied with. Section 2.5 TDHE Not Liable TDHE shall not be liable for damages to any person submitting any architectural plans for approval or to other owners by reason of any action, failure to act, approval or disapproval or failure to approve or disapprove with regard to such architectural plans. All persons acquiring the title to any interest in any lot and all persons submitting plans to the TDHE for approval by so doing agree and covenant not to bring any action or suit to recover damages against the TDHE, its members as individuals, or its advisors, employees or agents of TDHE. Neither this provision nor any other provision in these covenants shall be construed to waive the sovereign immunity of the TDHE or the Pueblo of XXX. Section 2.6 Required Submittals All owners desiring approval by TDHE shall submit the following documents: A. Plot Plan B. Floor Plan,. Page 3
C. Specifications D. Elevation (north, south, west and east), referenced to a benchmark elevation indicating existing and propose ground elevation contours. E. Bid and Projected construction schedule. TDHE may at its discretion, waive any of the above requirements where the same is deemed to be unnecessary due to the nature or scope of the project. Section 2.7 General Guidelines TDHE shall exercise its best judgment to see that all improvements, construction, landscaping and alteration on the land within the properties conform and harmonize with their natural surrounds and with existing structure and with existing structures as to external design, materials, color, setting, height, topography, grade and finish ground elevation. Section 2.8 Variance Where circumstance such as topography, location of trees, brush, and other matter or natural conditions so require, TDHE may allow reasonable variances as to any of the covenants contained within this instrument. Section 2.9 Building Envelopes/Set Backs Homes will be built within building envelopes and in accordance with established Set backs as shown on the subdivision plat and approved by TDHE. Section 2.10 Homes Homes placed on a lot must meet New Mexico building standards. All residential homes constructed or placed on a lot are subject to approval by TDHE. Section 2.10 A To ensure all homeowners and their guests are able to enjoy the surrounding view, homes are restricted to one story levels. Multi level homes, such as twostory homes, are restricted.,. Page 4
Section 2.11 Exterior Finishes The following structural standards shall be applied whenever exterior features of buildings and other structures are subject to public view from any public street, right of way, or any other public place: A. Stucco will be used as exterior wall material, unless an exception is issued by the TDHE. The color of buildings must be approved by the TDHE. Entries and portals may be emphasized by the use of white or other natural colors or materials. Painting of building with bold repetitive pattern, or utilizing a building as a sign is prohibited. Section 2.12 Minimum Home Size No single family dwelling shall be permitted which has a ground floor area or the main structure of less than 1000 square feet, exclusive of open porches, garages and carports. Section 2.13 Utilities All utility lines, including electric, gas, water, telephone cables and television cables shall be buried below grade. Main services provided are within the utility easements in the front of the properties. Private services such as television cables are the responsibility of owner/contractor. Section 2.14 Walls & Fences All fencing done within the subdivision needs to be approved by TDHE. Section 2.15 Site Work All improvements within Rose Mountain Estates Subdivision shall blend with the natural features of the land as much as possible. To the extent practical, architectural treatments should utilize the natural contours of each lot. Excessive site grading and/ or fill are prohibited, and shall be closely monitored during construction to ensure compliance with approved plans. Great care should be exercised by all parties to protect, as much as possible, all native vegetative,. Page 5
ground cover including, but not limited to grasses, shrubs and trees. All site work must be approved by TDHE. Section 2.16 Drainage and Utility Easements No permanent structures, excluding fences and walls, may be built upon any utility or drainage easement shown on the subdivision plat. Walls or fences may be built on easements only when approved by TDHE. It is expressly understood that such walls may have to be removed at a later date, at the owner s expense, if needed for drainage or utility purposes or for service of same. Lots shall be landscaped and graded so that rainwater and melting snow shall run into the ponding areas or public right of way. Lots shall not be graded in such a manner as to permit run off to adjacent lots. Section 2.17 Exterior Lighting Any exterior lighting placed upon these lots shall be so arranged as to reflect light away from adjacent lots. Specifically, lights without cut off type luminaries, shall be no higher than ten (10) feet and shall have a maximum illumination measured at the lot line at ground level of two tenths (.20) candle power. Lights with cutoff type luminaries shall be no higher than twenty (20) feet with a maximum illumination measured at the lot line at ground level of three tenths (.30) candle power. Lights with luminaries of less than ninety (90) cut off shall be higher than twenty (20) feet with a maximum illumination measured at the lot line at ground level of five tenths (.50) candle power. Section 2.18 Unused Vehicles Prohibited No unused vehicle of any kind may be parked or repaired except in enclosed garages or carports. All vehicles in violation of this provision may be towed away at owner s expense. An unused vehicle shall be a vehicle not used for more than seven (7) days. Section 2.19 Construction Process,. Page 6
All construction and alteration work shall be performed diligently and each building, structure, or improvement which is commenced on any lot shall be entirely completed within six (6) months from the purchase of a lot. The TDHE may allow for extensions of up to six (6) months at a time in situations where an owner is building his/her own home. Each owner shall be responsible for requiring that all contractors and sub contractors performing work upon their lot shall leave the site in reasonable order at the end of each day. Reasonable order shall include, without limitation, securing materials, scrap and refuse against wind relocation, removing scrap and refuse from site on a regular basis, securing hazardous conditions against accidental injury to children and adults, and regular clean up of the site. Section 2.20 Party Walls A. General rules of Law to Apply: Each wall or fence which is built as part of the original construction of the homes upon the properties and placed on dividing lines between lots shall constitute a party wall, and to the extent not inconsistent with the provisions of this Article, the general rules of law regarding party walls and of liability for property damage due to negligent or willful acts or omissions shall apply thereto. B. Sharing of repair and maintenance: The cost of reasonable repair and maintenance of a party wall shall be shared by the owners who make use of the wall in proportion to such use. C. Destruction by fire or other casualty: If a party wall is destroyed or damaged by fire, flood or other casualty, any owner who has used the wall may restore it and may enter into the adjoining property for such purpose, and the other owner who thereafter makes use of the wall, shall contribute to the cost of restoration thereof in proportion to such use without prejudice, however, to the right of any such owner to call for a larger contribution from the other under any rule of law regarding liability for negligent or willful acts or omissions. Section 2.21 Garages, Carports, Sheds A. Garages, carports, and sheds shall not be converted for residential purposes without TDHE approval. Any home owner that wants to build or,. Page 7
erect a garage, carport, or shed at a later date must obtain permission from TDHE and abide by Sections 2.1 2.4. B. Sheds may not be constructed or erected without the TDHE s written approval and in no instance shall a shed be constructed or erected in front of a home. Sheds shall be constructed for storage purposes only. Section 2.22 Leasing An owner may not lease his/her home for a period extending two years except with the written approval of the TDHE. In no instance shall an owner lease his/her home to a person who is not a tribal member of the Pueblo of XXX. Any lease agreement between an owner and a lessee (renter) shall be in writing and shall require compliance with the rules and regulations of TDHE and all provisions of these covenants. The owner shall provide the lessee with a copy of these covenants and any other rules or regulations the lessee is required to comply with. Failure to comply with all of said documents shall constitute a default under the lease. ARTICLE 3 USE RESTRICTIONS Section 3.1 Number and location of building No buildings or structures shall be placed, erected, altered, or permitted to remain on any lot except as permitted under this declaration of covenants and approved by TDHE. Section 3.2 No Re subdivision No lot shall ever be re subdivided into smaller lots nor conveyed or encumbered in any less than the full, original dimensions as shown on the subdivision plat unless TDHE has given approval and a lot line adjustment plat has been provided and approved by TDHE. Section 3.3 Combining Lots or Adjusting Lot Lines,. Page 8
Lots cannot be combined to make larger lots or divided to make adjoining lots larger. Only under direction from TDHE will lots be reshaped or adjusted to fit improvements if encroachments are an issue or setbacks have been violated. Section 3.4 Commercial and Other Uses Prohibited No lot or structure within the subdivision shall be used or occupied for any commercial or business purpose, excepting traditional arts and crafts and sales of traditional foods. Personal home employment not requiring employees and not involving high traffic customers coming to the home is acceptable. No store, office, or other place of commercial or professional business of any kind, campground, public theater, bar, restaurant or place of public entertainment shall ever be constructed or permitted to remain within the subdivision. Section 3.5 Signs Signs shall not be larger than two (2) square feet, and shall be of a style and design approved by TDHE. Section 3.6 Criminal Activity, Nuisances, Noxious Activity A. Criminal activity is prohibited in or near the subdivision. B. No nuisances, unsightly objects or noxious activity shall be permitted on any portion of the subdivision. All lot owners are to conduct their activities in a manner that would show respect for neighbors and would not infringe on their privacy. Section 3.7 Mining, Drilling or Quarrying No mining, quarrying, tunneling, excavating, or drilling for any substance within the earth, including oil, gas, minerals, gravel, sand, rock and earth shall be permitted within the limits of the subdivision. Section 3.8 Garbage Refuse,. Page 9
No garbage, refuse, rubbish or cutting shall be deposited on any street or other part of the properties unless placed in a suitable closed container. Plastic bags and containers shall be taken to the Snake River Tribe Transfer Station. Except when taken to the Snake River Tribe Transfer Station as specified above, all trash, woodpiles, or storage piles of any kind shall be kept screened by adequate fencing so as to conceal from view from neighboring lots, streets, and public right of way. No open fires, including the burning of trash, shall be allowed within the limits of the subdivisions. Section 3.9 Building Materials No building materials of any kind may be placed or maintained on any lot so as to be visible from any other lot within the properties, except during the course of construction of improvements. If any building materials are placed on any lot in the course of construction, such construction shall be diligently commenced and performed to completion as specified herein. Section 3.10 Noise No excessive noise which unreasonably disturbs residents, whether from radios, musical instruments, stereos, amplifiers, speakers, vehicles, pets, or any other source shall be permitted. Section 3.11 Animals, Livestock and Poultry Owners shall comply with the Pueblo of XXX Animal Ordinance. No animals, livestock, or poultry of any kind shall be kept, bred, or raised within the properties except dogs and cats, limited to no more than two (2) dogs and two (2) cats or as approved by TDHE. Dogs of a vicious nature, i.e., Rottweilers, pit bulls, Doberman, are prohibited. Horses shall not be permitted. Pets constituting a nuisance or danger must be kept within the dwelling of the owner, with a proper exterior enclosure; otherwise, TDHE may prohibit such pets from being kept within the properties. Pens, dog houses and other accommodations for pets will be permitted. Section 3.12 Towers and Antennas,. Page 10
No tower, radio, satellite dish or television antenna higher than six (6) feet above the highest roof line of the residence attached, garage, carport shall be erected on any lot and such tower, dish or antenna must be attached to the dwelling. Section 3.13 Use of temporary structures With the exception of travel trailers, no previously erected or temporary house, structure, house trailer, or non permanent outbuilding shall be placed, erected, or allowed to remain on any lot, except during construction, and no dwelling house shall be occupied in any manner prior to its completion. Section 3.14 Temporary Structures Sales and/or construction offices with a shed and a storage yard for construction materials may be permitted on any lot during development. Section 3.15 House Numbers and Mail Boxes House numbers and mail boxes shall be of a uniform size and design which will be approved by TDHE. Section 3.16 Utility Easements There is hereby created a blanket easement upon, across, over, and under the subdivision for installation, replacing, repairing, and maintaining all utility and service lines and systems including, but not limited to, water, sewer, gas, telephone, electricity, and television cable or communication lines and systems. By virtue of this easement, it shall be expressly permissible for the providing utility or Service Company to install and maintain facilities and equipment on said properties, including any other property made subject to this declaration and subject to all requirements of this declaration, to affix and maintain wires, circuits, and conduits as necessary. This easement shall in no way affect any other recorded easement on said subdivision plat or that is of record thereof. ARTICLE 4 EXTERIOR MAINTENANCE Section 4.1 Responsibility of Owner to Maintain Lot,. Page 11
The structures and grounds of each lot shall be maintained in a neat and attractive manner. Upon the owners failure to maintain any structure or improvement on his or her lot in good repair or standing in appearance, or to provide or maintain the minimum landscaping required by TDHE, TDHE may at its option, after giving the owner thirty (30) days written notice, sent to his or her last known address, make repairs and improve the appearance in a reasonable and workman like manner, including having the grass, weeds and vegetation cut and trimmed when and as often as the same is necessary, in its judgment, and have said dead trees, shrubs and plants removed. Costs shall be assessed to the owner as set forth in Section 4.3. Section 4.2 Responsibility of Owner to Keep Lot Safe If, in the judgment of TDHE a condition on any lot poses a hazard to any other lot owner, TDHE at its discretion may remove or abate the hazardous condition at the expense of the owner of the lot, but this shall in no way relieve the owner of any liability for injury or damage from said condition, whether occurring before, during or after said action of removal or abatement, provided that, in the judgment of TDHE, such notice is prudent under the circumstances. A twenty four (24) hour notice shall be given prior to entry for the purpose of removing or abating the hazardous condition. Costs shall be assessed to the owner as set forth in Section 4.3. Section 4.3 Assessment of Cost The cost of repair and maintenance referred to in Section 4.1 and 4.2 of this article shall be assessed against the lot owner upon which such repair or maintenance is done, and shall be added to, and become part of the monthly maintenance assessment or charge to which such lot is subject under Section 4.5 of this Article. Section 4.4 Access at Reasonable Hours For the purpose of performing the repairs and maintenance referred to in Section 4.1 and 4.2 of this article, TDHE, through its duly authorized agent or employer, shall have the right, after notice as above to the owner, to enter upon any lots at,. Page 12
reasonable hours on any business day unless it is an emergency and may endanger other lot owners lives or health. Section 4.5 Maintenance Assessments All owners shall be subject to a monthly maintenance assessment, to be determined by the TDHE, initially $50 per month, which shall be used by Declarant to maintain the common grounds of the properties. The Declarant may issue a lien on the property for failure of an owner to pay the monthly maintenance assessment. ARTICLE 5 GENERAL PROVISIONS Section 5.1 Enforcement Each owner or tenant of a lot of these properties, by signing a purchase agreement or lease purchase agreement or other occupancy agreement, agrees to be bound by these covenants and restrictions. TDHE or any owner shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this declaration. Failure by TDHE or by the owners to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. Section 5.2 Severability Invalidation of any one of these covenants or restrictions by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect. Section 5.3 Amendments The covenant and restrictions of this declaration shall run with and bind the subdivision for a term of fifty (50) years from the date that these covenants and restrictions are approved and signed, after which time they shall be automatically extended for successive periods of ten (10) years. Any amendments to these,. Page 13
covenants and restrictions must be approved by TDHE. In the event TDHE transfers all its rights of ownership to the properties to owners, these covenants and restrictions may be terminated or amended by a vote of fifty percent or more of the lot owners. ARTICLE 6 RIGHTS AND OBLIGATIONS RELATING TO MORTGAGEE Section 6.1 General Owners of lots holding a mortgage shall comply with their mortgage obligations and shall not prohibit the entry of a mortgagee or its agents or successors onto the lot for the purpose of inspecting, showing or appraising the property.,. Page 14