166318

WHEN RECORDED RETURN TO:Ann Leenhouts, Esq.The Estes Company5210 East Williams CircleSuite 300Tucson, Arizona 85711

RICr;ARD J . K=t .lNE,_CY.'.',.-)I , 'Y ~tC~:C^utiRRECORDED IN F 'IA COi1 :47 % A

REQ. Fidelity N; t oar.i t r:a :•, ;}cart j, :ra.

FIRST AMENDMENT TO THEDECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS

FORMACALESTER PARK

WHEREAS, FIDELITY NATIONAL TITLE AGENCY, INC ., anArizona. corporation, (the .Declarant) as Trustee under Trust No.50000 has caused to be recorded in Document #7843, Pages988-1008, Pima County Recorder's Office, Tucson, Arizona, onAugust 7, 1986, the Declaration of Covenants, Conditions andRestrictions for Macalester Park, Pima County, Arizona (theDeclaration) ; and

WHEREAS, all terms used in this First Amendment to theDeclaration of Covenants, Conditions and Restrictions forMacalester Park shall have the same meanings as defined and usedin the Declaration; and

WHEREAS, Declarant is the Owner of more than ninety.percent (90%) of the Lots within Macalester Park.

NOW,•THEREFORE, the Declarant, as the majority Owner ofproperty at Macalester Park hereby amends the Declaration asfollows :

1. ARTICLE 1, Section 1 .8 shall be amended to read "CommonArea" shall mean all real property, and all Improvementslocated thereon, including recreational facilities ifany, owned by the Association for the common use andenjoyment of the Owners.

2. ARTICLE 5, Section 5 .3, under Maximum Annual Assessment,the amount shall be amended to establish the initialmaximum annual assessment to be five hundred dollars($500 .00).

3. Under ARTICLE 6, PERMITTED USES AND RESTRICTIONS, addSection 6 .20 . GarageConversions . Any buildingconstructed as a garage shall be used primarily for theparking of vehicles and in no case shall be converted toliving space or used for any other purpose than storageand parking of vehicles.

3 . ARTICLE 10, Section 10 .1 . (a) shall be amended asfollows:

(a) Each wall or fence which is placed on thedividing line. between separate Lots, between Lots andCommon Area, or between Lots and public rights-of-waywhen such rights-of-way are to be maintained by theAssociation, shall constitute a party wall . In the casewhere a party wall Is that wall which divides a Lot andeither Common Area or a public right-of-way, the Lot

7918

238

Owner shall be considered to be one (1) party and theAssociation the other party ; and for all provisionsconcerning party walls, the Association shall beconsidered to be the Owner of the Common Area propertyor any public right-of-way which the Association hasagreed to maintain . With respect to any such wall, eachof the adjoining parties shall assume the burden and beentitled . to the benefit of the restrictive covenantscontained in this Declaration, and to the extent notinconsistent with this Declaration, the general rules oflaw regarding party walls shall be applied;

AND, WHEREAS, Article 12, Section 5 of theDeclaration states that the Declarant has the right to effectthe recording of an amendment when requested by the VeteransAdministration ("VA") as a condition precedent to such agency'sapproval of the Declaration ; and

WHEREAS, the VA has requested an amendment to theDeclaration be made and recorded.

NOW, THEREFORE, In accordance with VA requirements,ARTICLE 5, Section 5 .9 shall be deleted in its entirety andreplaced with the following:

Section 5 .9 . Effect of Nonpayment of Assessments;Remedies of the Association . Any assessment, or and'installment of an assessment, not paid within thirty (30)days after the assessment, or the installment of theassessment, first became due, shall bear interest at a rateof twelve percent (12%) per annum, in addition to a flatfive dollar ($5 .00) penalty charge per late occurrence . Anyassessment, or installment of an assessment which isdelinquent shall become a continuing lien upon the Lotagainst which such assessment was made . The lien shall beperfected by the recording of a "Notice of Claim of Lien"which shall set forth (1) the name of the delinquent Owneras shown on the records of the Association, (2) legaldescription, street address and number of the Lot againstwhich the lien is made, (3) the amount claimed as of thedate of the recording of the notice, including lienrecording fees and reasonble attorneys' fees, (4) the nameand address of the Association . The Association's lienshall have priority over all liens or claims createdsubsequent to the recording of the Notice of Claim of Lienexcept for tax liens for . real property taxes on the Lot,assessments on any Lot in favor of any municipal or othergovernmental body .and the liens which are specificallydescribed in Section 5 .10 of this Declaration.

Before recording a lien against any Lot, theAssociation shall make a written demand to the defaultingOwner for'payment of the delinquent assessments, togetherwith interest and reasonable attorneys' fees, if any . Saiddemand shall state the date and amount of the delinquency.Each default shall constitute a separate basis for a demandor claim of lien, but any number of defaults may be includedwithin a single demand or claim of lien . If suchdelinquency is not paid within ten (10) days after the

7918

239

delivery of such demand, the Association may proceed withrecording a Notice of Claint of Lien against the Lot of thedefaulting Owner . The Association shall not be obligated torelease any lien recorded pursuant to this Section until alldelinquent assessments, interest, lien fees and reasonableattorneys' fees have been paid in full whether or not all ofsuch amounts are set forh in the Notice of Claim of Lien.

The . Association shall have the right, at its option,to enforce collection of any delinquent assessments togetherwith interest, lien fees, reasonable attorneys' fees and anyother sums due to the Association in any manner allowed bylaw, including, but not limited to, (a) bringing an actionat law against the Owner personally obligated to pay thedelinquent assessments and such action may be broughtwithout waiving any lien securing any such delinquentassessments or (b) bringing an action to foreclose its lienagainst the Lot in the manner provided by law for theforeclosure of a realty mortgage . The Association shallhave the power to bid in at any foreclosure sale and topurchase, acquire, hold, lease, mortgage and convey and andall Lots-purchased at such sale .

7918

240

.a WHEN RECORDED RETURN TO:

The Estes Company5210 East Williams CircleSuite 300Tucson, Arizona 85711

?F: ` .#'N ED 1 ..4 c •• ; ,_' q .L.:

FEB 20 '87 -8AM

FEE $ . 76' q.

~ ~I~.aw^.TLwww~~.r+ri~aatiSW

SECOND AMENDMENT TO THEDECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS

FORMACALESTER PARK

The Declaration of Covenants, Conditions andRestrictions for Macalester Park (the "Declaration"), previouslyrecorded with the County Recorder of Pima County, Arizona, onAugust 7, 1986 in Docket

#7843, Pages 988-1008 and amended bythe First Amendment to Declaration of Covenants, Conditions andRestrictions for Macalester Park recorded November 25, 1986 in Docket7918, Pages 238-241, in the Pima CountyRecorder's Office, Pima County, Arizona, is hereby furtheramended by this Second Amendment to the Declaration of Covenants,Conditions and Restrictions for Macalester Park made this 19th dayof February , 1987, by Fidelity National Title Agency, Inc .,an Arizona corporation, as Trustee under Trust No . 50,000, onlyand not in its corporate capacity, (sometimes referred to as"Declarant").

• W I T N E S S E T H :

WHEREAS, in accordance with Article 12, Section 12 .4of the Declaration, the Declaration may be amended by the Ownersof more than ninety percent (90%) of the votes of all Lots ; and

WHEREAS, Declarant owns more than ninety percent(9V%) of the votes of all Lots within Macalester Park;

NOW, THEREFORE, Declarant hereby wishes to amend theDeclaration as follows:

1 . Article 6, Section 6 .2 shall be amended to readas follows -

Section 6 .2 . Residential Use . All Lots areintended primarily for Single Family Residential Use . No gainfuloccupation, profession, trade or other nonresidential use shallbe conducted on any Lot, with the exception of model homes whichare constructed and maintained by Declarant . . Notwithstandinganthing herein to the contrary, any Lot owned by Declarant uponWhich a model home has been constructed shall be permitted forcontinued use as a model home for as long as Declarant owns theLot. All Lots, other than Lots owned by Declarant and used asmodel homes, shall be used, improved and devoted exclusively toSingle Family Residential Use . Nothing herein shall be deemed to

1

prevent the leasing of a Lot to a Single Family from time to timeby .the Owner thereof, subject to all of the provisions of theProject Documents . Any Owner who leases his Lot shall promptlynotify the Association and shall advise the Association of theterm of the lease and the name of each lessee . All buildings orstructures erected upon the Property shall be of new constructionand no buildings or structures shall be moved from otherlocations onto the Property without the prior written approval ofthe Architectural Committee.

IN WITNESS WHEREOF, FIDELITY NATIONAL TITLE AGENCY,INC ., as Trustee, has hereunto caused its name to be signed bythe signature of its duly authorized official as of this 19th dayof February

, 1987 .

FIDELITY NATIONAL TITLEAGENCY, INC ., an Arizonacorporation, as Trusteeunder Trust No . 50,000 only ancin its corporate capacity

It"s : Asst . Vice President andSenior Trust Officer

STATE OF ARIZONA)) ss

County of Pima )

The foregoing instrument was acknowledged before me this19th day of February 1987, by Kevin French as Asst.

Vice President & Senior Trust Officer of FIDELITY NATIONAL TITLE AGENCY,. -INC ., an Arizona corporation, being authorized so to do on behalf

of the ..c,grporation.iT

,: OT`' 1y:~_

\' `er.

+.My cbmm'f 'ssion expires :

Notary Public

2

PIMA COUNTT RECO ;CER. RICHARD KENNE)Y, RECORDER ----

PIMA COUNTY, ARIZONACERTIFICATE OF RECORDING

NO . OF PAGES : 005SEQUENCE : 87065288

000KET : 08020

PAGE : 1020RECORDING TYPE : EASEMENTGRANTOR : FIDELITY NATIONAL TITLE 50000GRANTEE : ' . MACALESTER . PAZK ' HOMEOWNERS •ASS .N : .4

5 PAGESCONVERSION

A TFEE

S

.0 AFFIDAVIT AT : .00 EACHTFNTI ' 0 COPIES AT 1 .00 EACHFIDELITY NATIONAL TITLE

. 0 POSTAGE AT 1 .00 EACH0 SEARCHES AT 10 .00 EACH

. 4903 E BROADWAYTUCSON

AZ

85711602 — 790 —0033 TOTAL

04OE

JEBDEPUTY RECORDER

AMOUNT PAID S2012 REC3 AMOUNT OUE s

EASEMENT AGREEMENT

' • KNOWN -ALL--Met-BY -THESE--PRESENTS : FIDELITYNAITONAL TITLEAGENCY, INC .

an ARIZONA CORPORATION, as TRUSTEE UNDER TRUST NO . 50,000 . asTRUSTEEONLYandr

NOT IN ITS CORPORATE CAPACITY tier e ina:

called grantor . does by these presents hereby grant unto Macalestec Pa:

'Homeowners Association an easement foc the purpose of the installation

maintenance of a subdivision entrance wall and landscaping . The locat

this easement shall be :

Greiner Engineering Sciences . Inc.2590 N. Alvernon WayTucson. Amon. 8571 216021 327 .3413

A Greiner Engineering. Inc . Company

EXHIBIT "A"

October 23 . 1986W .O . No . 3322-09939:L3 .78

SUBDIVISION ENTRANCE WALL AND LANDSCAPE EASEMENTMACALESTER PARK

LOT 1

An easement for the construction and maintenance of a subdivision en-trance wall and landscaping over, under, across and'upon a portion of Lot 1 inMacalester-Park,-Lots-1-•thru -142 and-•Common•-Area- "A%-a subdivision of recordon file in the office of the Pima County, Arizona Recorder in Book 39 of Maps

and Plats at Page 97, more particularly described as follows:Commencing at the northwesterly most corner of said Lot 1, run thence

N.89'55'31"E ., along the northerly line of said Lot 1, a distance of 39 .05feet to a point of curvature;

.

Thence Southeasterly, along said northerly line, around a curve to theright whose radius is 25 .00 feet, through a central angle of 18 019'11" and an

arc distance of 7 .99 feet to THE TRUE POINT OF BEGINNING:Thence continue Southeasterly, around said curve to the right . through a

central angle of 63 .57'41" and an arc distance of 27 .91 feet:Thence 5.89'55'31"W. a distance of 2.77 feet;Thence N.45'04'29"W ..a distance of 20 .00 feet:Thence N.00'04'29"W . a distance of 6.23 feet to THE TRUE POINT OF

BEGINNING.

Prepared by Greiner Engineering Sciences . Inc.

8020 1021

Greiner

Greiner Engineering Sciences . Inc.555 East River Road . Suite 100Tucson . Arizona 85704(602) 887-18CG

A Greiner Engineering . Inc . Company

. EXHIBIT "C"

October 13, 1986X .O . No . 3322-09939:L3 .78/3Revision March 25, 1987

SIGN ANO LANDSCAPE EASEMENTMACALESTER PARK

LOT 104

An easement for the construction and maintenance of a subdivision namesign and landscaping over, under, across and upon a portion of Lot 104 inMacalester Park, Lots . 1 thru 142 and Common Area 'A', a subdivision of recordon file in the office of the Pima County, Arizona Recorder in Book 39 of Mapsand Plats at Page 97, more particularly described as follows:

Commencing at the northeasterly most corner of said Lot 104, run thenceS .00'04'29*E ., Along the easterly line of said Lot 104, a distance of 35 .00feet to a point of curvature and THE TRUE POINT OF BEGINNING;

Thence Southwesterly, along said easterly line, around a curve to theright whose radius is 25 .00 feet, through a central angle of 90'00'00" and an

arc distance of 39 .27 feet;Thence N.00'04'29"W. distance of 7 .58 feet;

Thence S.88 .33'45'E. a distance of 7 .90 feet;

Thence N.42'43'02"E. a distance of 20 .62 feet;Thence N .00'11'00"W. a distance of 2 .50 feet;

Thence N.89'55'31'E. a distance of 3 .10 feet to THE TRUE POINT OF BEGIN-NING.

Prepared by Greiner Engineering Sciences, Inc .

8020 1022

Greiner

Greiner Engineering Sclencas, Inc.555 East River Road . Suite 100Tucson. Arizona 85704(602) 887-1800

A Grainer Engineering . Inc . Company

EXHIBIT "D"

October 14, 1986W.O . No . 3322-09939:L3 .78/4Revised March 25, 1987

SIGN AND LANDSCAPE EASEMENTMACALESTER PARK

LOT 129

An easement for the construction and maintenance of a subdivision namesign and landscaping over, under, across and upon a portion of Lot 129 in

'- -" : Macalester ..Park, ..lots 1_thru .142 and .Conmon Area "A", a subdivision of recordon file to the office of the Pima County ; Arizona Recorder in Book 39 of Mapsand Plats at Page 97, more particularly, described as follows:

Commencing at the southeasterly most corner of said Lot 129, run thenceN .00 .04'29 0M., along the easterly line of said Lot 129, a distance of 35 .00

__ _feet to a point of curvature and _NE TRUE POINT OF BEGINNING;Thence Northwesterly, along said easterly line, around a curve to the

left whose radius is 25 .00 feet, through a central angle of 90'00'00" and anarc distance of 39 .27 feet to a point of tangency;

Thence 5 .89'55'31 "W ., along the northerly line of said Lot 129 . a dis-tance of 3 .51 feet;

Thence 5.00'04'29"E . distance of 9 .66 feet;Thence N.89'26'06"E. a distance of 12 .53 feet;Thence S.39'58'11"E . a distance of 20 .13 feet;Thence N.89'55'31"E . a distance of 3 .08 feet to THE TRUE POINT OF BEGIN-

NING.

Prepared by Greiner Engineering Sciences, Inc.

8020 1.023

Greiner

Greiner Engineering Sciences, Inc,555 Eact River Road . Sulfa 100Tuc3on, Arizona 85704(602) 887-1800

A Greiner Engineering. Inc, Company

EXHIBIT "B"

October 14, 1986W .O . No . 3322-09939:L3 .78/2Revision March 25, 1987

SIGN ANO LANDSCAPE EASEMENTMACALESTER PARK

LOT 142

.

An easement for the construction and maintenance of a subdivision namesign and landscaping over, under, across .and upon a portion of_Lot 142 inMacalester Park, Lots 1 thru 142 and Common Area "A", a subdivision of recordon file in the office of the Pima County, Arizona Recorder in Book 39 of Mapsand Plats at Page 97, more particularly described as follows:

Commencing at the northeasterly most corner of said Lot 142, run thenceS .00'04'29"E., along the easterly line of said Lot 142, a distance of 34 .65feet to'THE TRUE POINT OF BEGINNING;

Thence continue S .00'04 ' 29"E ., along said easterly line, a distance of0 .35 feet to a point of curvature;

Thence Southwesterly, along said easterly line, around a curve to theright whose radius is 25 .00 feet, through a central angle of 70 041'39" and anarc distance of 30 .85 feet;

Thence N.00 . 04'29"W . distance of 9 .46 feet;Thence N .43'18'20"E : a distance of 19 .93 feet;Thence N .89'55'31"E . a distance of 3 .05 feet to THE TRUE POINT OF BEGIN-

NING.

Prepared by Greiner Engineering Sciences, Inc .

8020 1024

Greiner

MIKE BOYD_PIMA COUNTY,

RECORDERARIZONARECORDING 2/2_/89CERTIFICATE OF

12 :36 :00WMACALESTER PARK HOMEOWNERSPO BOX 18065

TUCSON

AZ

85731 34 PAGES AT $

33 .00CONVERSION FEE •3,00►

0 AFFIDAVIT AT 2 .00 EACH .00NO . OF PAGES: 034 0 COPIES AT 1 .00 EACH .00SEQUENCE : 39160577 0 POSTAGE AT 1 .00 EACH . 00DOCKET : 03693

PAGE :'2042 0 SEARCHES AT 10 .00 EACH .00

RECORDING TYPE : AMENDED RESTRICTION3RANTOR : MACALESTER PARK 1-1423RANTEE : RESTRICTION

TOTAL 36 .00

CEO AMOUNT PAID $

36 .00DEPUTY RECORDER 2005 APC2 AMOUNT DUE

$

.00

ENVELOPE

THE ABOVE SPACE FOR RECORDERS USE ONLY

TO BE RECORDED AS PART OF DOCUMENT

DO NOT DETACH CERTIFICATE FROM DOCUMENT

8693 2042

AMENDMENT TODECLARATION OF .COVENANTS. CONDITIONS AND RESTRICTIONS

OF MACALESTER PARK

WHEREAS. a Declaration of Covenants, Conditionsand Restrictions of Macalester Park was recorded byFIDELITY NATIONAL TITLE AGENCY . INC . . an ArizonaCorporation as Trustee under Trust'No . 50 .000. referred toin the Declaration as -Declarant " ; and

WHEREAS . such Declaration was recorded in theoffice of the County Recorder of Piaa County . Tucson.Arizona. in Docket 7843. at pages 988 through 1008 ; and

WHEREAS . pursuant to Article XII . Section 12 .4 atleast ninety percent

<90%) of the Lot owners haveindicated in writing .

their

desire

to

aaend

suchDeclaration.

NOW. THEREFORE, such Declaration shall be amendedas follows:

1 .

Article VI . Section 6 .14, "Signs," shallbe deleted and

the following aaendaent

shall besubstituted:

Section6 .14 . , Siqns.

No advertising signs, cosaercial and/or politicalsigns or billboards shall be erected, placed orpermitted to remain on the property except signswhich are required to be posted pursuant to legalproceedings . or as approved by the Association.However, each Owner shall be entitled to place, inhis/her front yard of the property, one (1) postcounted real estate sign, standard size used in.the real estate industry, approxiaately 18" X 24"inches, which sign states the property is beingoffered for sale or lease. All signs gust beprofessionally designed and constructed.

WHEN RECORDED RETURN TO:MACALESTER PARK HOMEOWNERS ASSOCIATIONP . 0, BOX 18065TUCSON, AZ 85731

8693 2043

MIKE BOYD, RECORDERPIMA COUNTY . ARIZONA

CERTIFICATE OF RECORDING 10/17/9014 :14 :00

WMACALESTER PARK HOMEOWNERSPO BOX 18065

TUCSON

AZ

85731 37 PAGES AT $

36 .00CONVERSION FEE 3 .00

0 AFFIDAVIT AT 2 .00 EACH .00NO . OF PAGES : 037 0 COPIES AT 1 .00 EACH .00SEQUENCE : 90126794 0 POSTAGE AT 1 .00 EACH .00DOCKET : 08895

PAGE : 0982 0 SEARCHES AT 10 .00 EACH .00

RECORDING TYPE : AMENDED RESTRICTIONGRANTOR : MACALESTER PARKGRANTEE* RESTRICTION

TOTAL 39 .00

OKG AMOUNT PAID $

39 .00DEPUTY-RECORDER 2077 RD13 AMOUNT DUE

$

.00

ENVELOPE

THE ABOVE SPACE FOR RECORDERS USE ONLYTO BE RECORDED AS PART OF DOCUMENT

DO NOT DETACH CERTIFICATE FROM DOCUMENT

8895

q R9

1

AMENDMENT TO. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS

OF MACALESTER PARK

WHEREAS. a Declaration of Covenants, Conditions andRestrictions of Macalester = Park was recorded by FIDELITYNATIONAL TITLE AGENCY, INC., an Arizona Corporation as Trusteeunder Trust No . SO,000, referred to in the Declaration as"Declarant" ; and

WHEREAS, such Declaration was recorded in the office ofthe County Recorder of Pima County, Tucson, Arizona . in Docket7843 . at pages 988 through 1008 ; and

WHEREAS, pursuant to Article XII . Section 12 .4 at leastninety percent (90%) of the Lot owners have indicated inwriting, their desire to amend such Declaration.

.

NOW, THEREFORE, such Declaration shall be amended asfollows :

1 . Article XII . Section 12.4, "Amendment byOwners-, . shall be deleted and the following . amendment shall besubstitued.

Section 12 .4 . , Amendment by Owners.

This Declaration may be amended by the . . vote or writtenconsent of seventy-five percent (7S%) of the Members.Any Amendment shall be effective upon the recordationin the . Office of Pima County Recorder of a writteninstrument executed by the President and Secretary ofthe Association which sets for the the terms of suchamendment .

8895

98.3

106298

WHEN RECORD RETURN TO:Ann Leen

is5210 E

illiams CircleSuit 300Tu on, Arizona 85711

RICHARD J. KENNEDY, COUNTY RECORDER

RECORDED IN PIMA COUNTY, AZ .

IOOF

DECLARATIONOF COVENANTS, CONDITIONS AND RESTRICTIONS

FORMACALESTER PARK

THIS DECLARATION of Covenants, Conditions andRestrictions (hereinafter termed the "Declaration") is made onthis Z'Saa day of ju t. ),, 1986, by FIDELITY NATIONALTITLE AGENCY, INC ., an Arizona corporation, as Trustee underTrust No . 50,000 (hereinafter sometimes termed "Declarant " ).

W I T N E S S E T H:

WHEREAS, the Declarant is the Owner of the realproperty located in Tucson, Arizona, which is . described onExhibit A attached hereto.

NOW, THEREFORE, Declarant hereby declares that all ofsaid real property (hereinafter sometimes referred to asMacalester Park) shall be held, sold, and conveyed subject to theeasements, restrictions, covenants and conditions contained inthis Declaration which are for the purpose of protecting thevalue and desirability of, and which shall run with, said realproperty, and be binding on all parties having any right, titleor interest in said real property or any part thereof, theirheirs, successors, and assigns, and shall inure to the benefit ofeach Owner thereof .

ARTICLE 1DEFINITIONS

Section 1 .1 .

"Architectural Committee" shall mean theCommittee established by the Board pursuant to Section 2 .4 of

00this Declaration., Section 1 .2 .

"Architectural Committee Rules" shall Wmean the rules adopted by the Architecturalrules may be amended from time to time .

Committee, as said

Section 1 .3 .

"Articles" shall mean the Articles ofIncorporation of the Association which have been, or will be, cofiled in the Office of the Corporation Commission of the State of 00Arizona, as said Articles may be amended from time to time.

Section 1 .4 .

"Association" shall mean "The Macalester00

1

Park Homeowners Association, Inc .", an Arizona nonprofitcorporation, its successors and assigns .

-

Section 1 .5 . "Association Rules" shall mean the rulesand regulations adopted by the Association, as the same may beamended from time to time.

Section 1 .6 . "Board " shall mean the Board ofDirectors of the Association.

Section 1 .7 . "Bylaws " shall mean the Bylaws of theAssociation, as such Bylaws may be amended from time to time.

Section 1 .8 . "Common Area" shall mean all realproperty, and all Improvements located thereon, owned by theAssociation for the common use and enjoyment of the Owners.

Section 1 .9 . "Declarant" shall mean not only FidelityNational Title Agency, Inc ., an Arizona corporation, as Trusteeunder Trust No . 50010, but also (1) Estes Homes, a generalpartnership ; (2) The Estes Company, a general partnership ; (3)any individual, corporation, partnership, trust or other entity,which at any time, owns any interest in Estes Homes and/or TheEstes Company, or which is owned or controlled, in whole or ihpart, by Estes Homes and/or The Estes Company or any partnersthereof ("affiliates") ; (4) any Successors or assigns of TheEstes Company, Estes Homes and/or such affiliates, but forpurposes of the foregoing, no individual, corporation, trustpartnership or other entity who or which has purchased suchproperty from Declarant, shall be deemed to be a successor orassign of the Declarant . The Declarant's rights shall only beassigned by a written, recorded instrument expressly assigningthose rights.

Section 1 .10 . "Declaration" shall mean the covenants,conditions and restrictions herein set forth in this entiredocument, as same may from time to time be amended.

Section 1 .11 . "First Mortgage" shall mean and referto any mortgage or deed of trust with first priority over anyother mortgage or deed of trust.

Section 1 .12 . "First Mortgagee" shall mean and referto the holder of any First Mortgage.

Section 1 .13 . "Improvement" shall mean buildings,roads, driveways, parking areas, fences,'walls, rocks, hedges,plantings, planted trees and shrubs, and all other structures orlandscaping Improvements of every type and kind.

Section 1 .14 . "Lot" shall mean any parcel of realproperty designated as a Lot on the Plat.

Section 1 .15 . "Member" shall mean any person,corporation, partnership, joint venture, or other legal entitywho is a Member of the Association .

17

Section 1 .16 . "Owner" shall mean the record Owner,whether one (1) or more persons or entities, of beneficial orequitable title (and legal title if the same has merged with thebeneficial or equitable title) to the fee simple interest of aLot . Owner shall not include (i) the purchaser of a Lot under anexecutory contract for the sale of real property, (ii) persons orentities having an interest in a Lot . merely as security for theperformance of an obligation, or (iii) a lessee or tenant of aLot . In the case of Lots, the fee simple title to which isvested in a trustee pursuant to Arizona Revised Statutes, Section33-801, et seq ., the Trustor shall be .deemed to be the Owner . In

2

the case of Lots, the fee simple title to which is vested in atrustee pursuant to a subdivision trust agreement or similaragreement, the beneficiary of any such trust shall be deemed tobe the Owner.

Section 1 .17 . "Plat" shall mean the Plat of survey ofMacalester Park, which Plat has been recorded with the CountyRecorder of Pima County, Arizona, in Book ~~f of Maps, page 7,and all amendments thereto.

Section 1 .18 . "Project Documents" shall mean thisDeclaration and the Articles, Bylaws, Association Rules, andArchitectural Committee Rules.

Section 1 .19 . "Property" or "Project" shall mean thereal property described on Exhibit A attached to thisDeclaration.

Section 1 .20 . "Purchaser" shall mean any person otherthan the Declarant who by means of a voluntary transfer acquiresa legal or equitable interest in a Lot other than (a) a leaseholdinterest (including renewable options) of less than five (5)years or (b) as security for an obligation.

. Section 1 .21 . "Single Family" shall mean a group ofone (1) or more persons each related to the other by blood,marriage or legal adoption ; or a group of persons not all sorelated, together with their domestic servants not to exceedthree (3) in -number, who maintain a common household in adwelling .

Section 1 .22 . "Single Family Residential Use" shallmean the occupation or use of a residence by a Single Family inconformity with this Declaration and the requirements imposed byapplicable zoning laws or other state, county, or municipal rulesand regulation.

Section 1 .23 . "Visible From Neighboring Property"shall mean, with respect to any given object, that such objectis, or would be, visible to a person six (6) feet tall, standingon any part of such neighboring property at an elevation nogreater than the elevation of the base of the object beingviewed .

ARTICLE 2THE ASSOCIATION

Section 2 .1 . Rights, Powers, and Duties . TheAssociation shall be a nonprofit Arizona corporation charged withthe duties and invested with the powers prescribed by law and setforth in the Articles, Bylaws, and this Declaration together withsuch rights, powers and duties as may be reasonably necessary toeffectuate the objectives and purposes of the Association as setforth in this Declaration .

CIDSection 2 .2 . Board of Directors and Officers . The

affairs of the' Association shall be conducted by a Board of

CDDirectors and such officers and committees as the Board may elector appoint, in accordance with the Articles and the Bylaws.

Section 2 .3 . Association Rules . By a majority voteof the Board, the Association may, from time to time, and subject

3

(

to the provisions of this Declaration, adopt, amend and repealrules and regulations . The Association Rules may restrict andgovern the use of any area . by any Owner, by the family of suchOwner, or by any invitee, licensee, or lessee of such Owner;provided, however, that the Association Rules may notdiscriminate among Owners and shall not be inconsistent with thisDeclaration, the Articles or Bylaws . A copy of the AssociationRules as they may from time to time be adopted, amended orrepealed, shall be available for inspection by the Members atreasonable times . Upon adoption and recording with the CountyRecorder of Pima County, Arizona, the Association Rules shallhave the same force and effect as if they were set forth in andwere a part of this Declaration.

Section 2 .4 . Architectural Committee . The Boardshall establish an Architectural Committee consisting of not lessthan three (3) members appointed by the Board to regulate theexternal design, appearance and use of the Property and toperform such other functions and duties as may be imposed upon itby this Declaration, the Bylaws or the Board . No Improvement ofany kind may be made on any Lot without prior approval from theArchitectural Committee and no change to an Improvementpreviously approved by the Architectural Committee may be madewithout prior written approval of the Architectural Committee.

ARTICLE 3MEMBERSHIP

Section 3 .1 . Identity of Members . Membership in theAssociation shall be limited to Owners of Lots . An Owner of aLot shall automatically, upon becoming the Owner thereof, be aMember of the Association and shall remain a Member of theAssociation until such time as his ownership ceases for anyreason, at which time his membership in the Association shallautomatically cease.

Section 3 .2 . Transfer of Membership . Membership inthe Association shall be appurtenant to each Lot and a membershipin the Association shall not be transferred, pledged or alienatedin any way, except upon the sale of a Lot and then only to suchPurchaser, or by intestate succession, testamentary disposition,foreclosure of mortgage of record or other legal process . Anyattempt to make a prohibited transfer shall be void and shall notbe reflected upon the books and records of the Association.

ARTICLE 4VOTING RIGHTS

Section 4 .1 . Classes of Members . The Associationshall have two (2) classes of voting membership:

Class A. Class A Members shall be all Owners of Lots,with the exception of the Declarant . Each Class A Member shallbe entitled .to one (1) vote for each Lot owned.

ClassB . The Class B Member shall be the Declarant.The Class B Member shall be entitled to three (3) votes for each

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fl)aCcQcJr ()c-k,Class A vote outstanding for as long as there is a Class Bmembership . The Class B membership shall cease and be convertedto Class A membership on the happening of either of the followingevents, whichever occurs earlier:

(a) When all of the Lots have been conveyed toPurchasers ; or

(b) When the Declarant notifies the Associationin writing that it relinquishes its Class B membership ; or

(c) January 1, 1999.Section 4 .2 . Joint Ownership . When more than one (1)

person is the Owner of any Lot, all such persons shall beMembers . The vote for such Lot shall be exercised as they amongthemselves determine, but in no event shall more than one (1)ballot be cast with respect to any Lot . The vote or votes foreach such Lot must be cast as a unit, and fractional votes shallnot be allowed . In the event that joint Owners are unable toagree among themselves as to how their vote or votes shall becast, they shall lose their right to vote on the matter inquestion . If any Owner casts a ballot representing a certainLot, it will thereafter be conclusively presumed for all purposesthat he was acting with the authority and consent of all otherOwners of the same Lot . In the event more than one (1) ballot iscast for a particular Lot, none of said votes shall be countedand said votes shall be deemed void.

Section 4 .3 . Corporate Ownership . In the event anyLot is owned by a corporation, partnership or other association,the corporation, partnership or association shall be a Member andshall designate in writing at the time of acquisition of the Lotan individual who shall have the power to vote said membership,and in the absence of such designation and until such designationis made, the chief executive officer, if any, of suchcorporation, partnership or association shall have the power tovote the membership, and if there is no'chief executive officer,then the board of directors or general partner of suchcorporation, partnership or association shall designate who shallhave the power .to vote the membership.

Section 4 .4 . Suspension of Voting Rights . In theevent any Owner is in arrears in the payment of any assessmentsor other amounts due under any of the provisions of the ProjectDocuments for a period of fifteen (15) days, said Owner's rightto vote as a Member of the Association shall be .suspended andshall remain suspended until all payments, including accruedinterest and attorneys' fees, are brought current, and for aperiod not to exceed sixty (60) days for any infractions of theProject Documents and for successive sixty (60) day periods ifthe infraction has not been corrected.

ARTICLE 5COVENANT FOR MAINTENANCE ASSESSMENTS

Section 5 .1 . Creation of the Lien and PersonalObligation of Assessments . The Declarant, for each Lot owned by

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it, hereby covenants, and each Owner of a Lot, by becoming theOwner thereof, whether or not it is expressed in the deed orother instrument by which the Owner acquired ownership of theLot, is deemed to covenant and agree to pay to the Association:(1) annual assessments, (2) supplemental assessments, and (3)special assessments for capital improvements . The annual,supplemental, and special assessments, together with interest,costs and reasonable attorneys' fees, shall be a charge on theland and shall be a continuing lien upon the Lot against whicheach such assessment is made . Each such assessment, togetherwith interest, costs, and reasonable attorneys' fees, shall alsobe the personal obligation of the Owner of such Lot at the timewhen the assessment became due . The personal obligation fordelinquent assessments shall not pass to the Owner's successorsin title unless expressly assumed by them.

Section 5 .2 . Purpose of the Assessments . Theassessments levied by the Association shall be used exclusivelyfor the upkeep, maintenance, and improvement of the Common Areaand such portions of the Lots, and such portions of theImprovements located thereon, as the Association is obligated tomaintain under Sections 9 .1 and 9 .2 of this Declaration, and forpromoting the recreation, health, safety and welfare of theOwners and residents of Lots within the Property.

Section 5 .3 . Maximum Annual Assessment.(a) Until January 1 of the year immediately

following the conveyance of the first Lot to a Purchaser,the maximum annual assessment for each Lot shall be

art m+ouJANO dollars ($l000.00).(b) From and after January 1 of the year

immediately following the conveyance of the first Lot to aPurchaser, the Board may, without a vote of themembership, increase the maximum annual assessment duringeach fiscal year of the Association by an amount.proportional to the amount of increase during the priorfiscal year in the Consumer Price Index for All UrbanConsumers (All Items), U .S . City Average, published by theUnited States Department of Labor, Bureau of LaborStatistics . (1967 = 100), or in the event said index ceasesto be published, by any successor index recommended as asubstitute therefor by the United States government ; orten percent (10%), whichever is greater.

(c) From and after January 1 of the yearimmediately following the conveyance of the first Lot to aPurchaser, the maximum annual assessment may be increasedby an amount greater than the maximum increase allowedpursuant to (a) above, only by a vote of Members entitledto cast at least two-thirds (2/3) of the votes entitled tobe cast by Members who are voting in person or by proxy ata meeting duly called for such purpose, or by a two-thirds(2/3) majority of each class of vote as long as there is aClass B vote .

(d) The Board may fix the annual assessment inany amount not in excess of the maximum annual assessment.

Section 5 .4 . Supplemental Assessments . In the event

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the Board shall determine that its funds budgeted or available inany fiscal year are, or will become, inadequate to meet allexpenses of the Association, for any reason, including, withoutlimitation, nonpayment of assessments by the Members, it shallimmediately determine the approximate amount of such inadequaciesfor such fiscal year, prepare a supplemental budget, determinethe amount of such inadequacies for such fiscal year and levy asupplemental assessment against each Lot in such amount as theBoard deems necessary in order to obtain the amount of suchinadequacies . Notice of any such supplemental assessment shallbe given to each Owner . The supplemental assessment shall bepaid on such dates and in such installments as may be determinedby the Board . No supplemental assessment shall be levied by theBoard until such assessment has been approved by Members entitledto cast at least two-thirds (2/3) of the votes entitled to becast by Members who are voting in person or by proxy at a meetingduly called for such purpose, or a two-thirds (2/3) majority ofeach class as long as there is a Class B vote.

Section 5 .5 . Special Assessments . In addition to theannual assessments authorized above, the Association may levy, inany assessment year, a special assessment applicable to thatfiscal year only for the purpose of defraying, in whole or inpart, the cost of any construction, reconstruction, repair orreplacement of a capital Improvement of the Common Area,including fixtures and personal property related thereto, or forany other lawful Association purpose, provided that any suchassessment shall have the assent of Members having at leasttwo-thirds (2/3) of the votes entitled to be cast by Members whoare voting in person or by proxy at a meeting duly called forsuch purpose, or a two-thirds (2/3) majority of each class aslong as there is a Class B vote.

Section 5 .6 . Notice and Quorum for Any ActionAuthorized Under Sections 5 .3, 5 .4 and 5 .5 . Written notice ofany meeting called for the purpose of taking any actionauthorized under Section 5 .3, 5 .4 or 5 .5 shall be sent to allMembers not less than thirty (30) days nor more than sixty (60)days in advance of the meeting . At the first such meetingcalled, the presence of Members or proxies entitled to ' cast sixtypercent (60%) of all the votes of each class of Members shallconstitute a quorum . If the required quorum is not present,another meeting may be called subject to the same noticerequirement, and the required quorum at the subsequent meetingshall be one-half (1/2) of the required quorum at the precedingmeeting . No such subsequent meeting shall be held more thansixty (60) days following the preceding meeting.

Section 5 .7 . Uniform Rate of Assessment . Annual,supplemental, and special assessments must be fixed at a uniformrate for all Lots . However, as long as there is a Class Bmembership, Declarant shall not be subject to assessments forLots not sold to individual Purchasers, but instead shall berequired to pay the difference between actual operating costs forthe Association and all income from assessments and other

' sources . When the Class B membership ceases as prescribed inArticle 4, Section 4 .1, Declarant shall become a Class A Member

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and will be subject to assessment for each Lot owned byDeclarant .

Section 5 .8 . Date of Commencement of AnnualAssessments ; Due Dates . The annual assessments provided forherein shall commence as to each Lot on the first day of themonth following the conveyance of the first Lot to a Purchaser.The first annual assessment shall be adjusted according to thenumber of months remaining in the fiscal year of the Association.The Board shall fix the amount of the annual assessment againsteach Lot at least thirty (30) days in advance of each annualassessment period . Written notice of the annual assessment shallbe sent to every Owner subject thereto . The Board may requirethat the annual assessment be paid in installments and in suchevent the Board shall establish the due dates for eachinstallment . The Association shall, upon demand, and for areasonable charge, furnish a certificate signed by an officer ofthe Association setting forth whether the assessments on aspecified Lot have been paid.

Section 5 .9 . Effect of Nonpayment of Assessments;Remedies of the Association . Any assessment, or any installment

Vof an assessment, not paid within thirty (30) days after theassessment, or the installment of the assessment, first becamedue, shall bear a late fee, the amount of which shall bedetermined by the Board . Any assessment, or any installment ofan assessment, which is delinquent shall become a continuing lienon the Lot against which such assessment was made . The lienshall be perfected by the recording of a "Notice of Claim ofLien" which shall set forth (1) the name of the delinquent Owneras shown on the records of the Association, (2) legaldescription, street address and number of the Lot against whichof lien is made, (3) the amount claimed as of the date of therecording of the notice including lien recording fees andreasonable attorneys' fees, (4) the name and address of theAssociation . The Association's lien shall have priority over allliens or claims created subsequent to the recording of the Noticeof Claim of Lien except for tax liens for real property taxes onthe Lot, assessments on any Lot in favor of any municipal orother governmental body and the liens which are specificallydescribed in Section 5 .10 of this Declaration.

Before recording a lien against any Lot, theAssociation shall make a written demand to the defaulting Ownerfor payment of the delinquent assessments, together withreasonable attorneys' fees, if any . Said demand shall state thedate and amount of the delinquency . Each default shallconstitute a separate basis for a demand or claim of lien, but

COany number of defaults may be included within a single demand orclaim of lien . If such delinquency is not paid within ten (10)days after delivery of such demand, the Association may proceedwith recording a Notice of Claim of Lien against the Lot of thedefaulting Owner . The Association shall not be obligated torelease any lien recorded pursuant to this Section until all

tCdelinquent assessments, lien fees and reasonable attorneys' fees

CJthave been paid in full whether or not all of such amounts are setforth in the Notice of Claim of Lien.

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The Association shall have the right, at its option,to enforce collection of any delinquent assessments together withlien fees, reasonable attorneys' fees and any other sums due tothe Association in any manner allowed by law including, but notlimited to, (a) bringing an action at law against the Ownerpersonally obligated to pay the delinquent assessments and suchaction may be brought without waiving any lien securing any suchdelinquent assessments or (b) bringing an action to foreclose' itslien against the Lot in the manner provided by law for theforeclosure of a realty mortgage . The Association shall have thepower to bid in at any foreclosure sale and to purchase, acquire,hold, lease, mortgage and convey any and all Lots purchased atsuch sale .

Section 5 .10 . Subordination of the Lien to Mortgages.The lien of the assessments provided for in this Declarationshall be subordinate to the lien of any First Mortgage . Sale ortransfer of any Lot shall not affect the assessment lien.However, the sale or transfer of any Lot pursuant to judicial ornonjudicial foreclosure or any proceeding in lieu thereof, shallextinguish the lien of such assessment as to payments whichbecome due prior to such sale or transfer . No sale or transfershall relieve such Lot from liability for any assessmentsthereafter becoming due or from the lien thereof.

Section 5 .11 . Exemption of Owner . No Owner of a Lotmay exempt himself from liability for annual, supplemental, orspecial assessments levied against his Lot or for other amountswhich he may owe to the Association under the Project Documentsby waiver and non-use of any of the Common Area and facilities,or by the abandonment of his Lot.

Section 5 .12 . Maintenance of Reserve Fund . Out ofthe annual assessments, the Association shall establish andmaintain an adequate reserve fund for the periodic maintenance,repair and replacement of Improvements to the Common Area andsuch Improvements of the Lots as the Association is obligated tomaintain under Sections 9 .1 and 9 .2 of this Declaration.

ARTICLE 6PERMITTED USES AND RESTRICTIONS

Section 6 .1 . Scope . Except as otherwise specified,the provisions of this Article shall apply to all of theProperty . r .?

Section 6 .2 Residential Use . All Lots shall be used,

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improved, and devoted exclusively to Single Family ResidentialUse . No gainful occupation, profession, trade or othernonresidential use shall be conducted on any Lot . Nothing hereinshall be deemed to prevent the leasing of a Lot to a SingleFamily from time to time by the Owner thereof, subject to all ofthe provisions of the Project Documents . Any Owner who leases

c,Dhis Lot shall promptly notify the Association and shall advise

c')the Association of the term of the lease and the name of eachlessee . All buildings or structures erected upon the Propertyshall be of new construction and no buildings or structures shall

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be moved from other locations onto the Property without the priorwritten approval of the Architectural Committee.

Section 6 .3 Animals . No animals, birds, fowl,poultry, or livestock, other than a reasonable number ofgenerally recognized house or yard pets, shall be maintained onany property and then only if they are kept, bred, or raisedthereon solely as domestic pets and not for commercial purposes.No animal shall be allowed to make an unreasonable amount ofnoise, or to become a nuisance . No structure for the care,housing or confinement of any animal shall be maintained so as tobe Visible From Neighboring Property . Upon the written requestof any Owner, the Board shall determine whether, for the purposesof this Section, a particular animal is a generally recognizedhouse or yard pet, or nuisance, or whether the number of animalson any such property is reasonable . Any decision rendered by theBoard shall be enforecable to the same extent as otherrestrictions contained in this Declaration.

Section 6 .4 . Antennas . No antenna or other devicefor the transmission or reception of television or radio signalsor any other form of electromagnetic radiation shall be erected,used or maintained outdoors on any property, whether attached toa building or structure or otherwise, unless approved by theArchitectural Committee.

Section 6 .5 . Utility Service . Except as approved inwriting by the Architectural Committee, no lines, wires, or otherdevices for the communication of transmission of electric currentor power, including telephone, television, and radio signals,shall be erected, placed or maintained anywhere in or upon anyproperty unless the same shall be contained in conduits or cablesinstalled and maintained underground or concealed in, under or onbuildings or other structures approved by the ArchitecturalCommittee . No provision hereof shall be deemed to forbid theerection of temporary power or telephone structures incidental tothe construction of buildings or structures approved by theArchitectural Committee.

Section 6 .6 . Improvements and Alterations . NoImprovements, alterations, repairs, excavations, landscaping(except for such planting and landscaping as is installed inaccordance with the initial construction of buildings on a Lot,or such planting or landscaping as is enclosed by a fence orwall, or in area not maintained by the Association) or other workwhich in any way alters the exterior appearance of any propertyor the Improvements located thereon, from its natural or improvedstate existing on the date such property was first conveyed infee by Declarant to a Purchaser, shall be made or done withoutthe prior written approval of the Architectural Committee, exceptas otherwise expressly provided in this Declaration . Nobuilding, fence, wall, landscaping, residence, or other structureshall be commenced, erected, maintained, improved, altered, madeor done without the prior written approval of the ArchitecturalCommittee . No change or deviations in or from such plans andspecifications once approved shall be made without the priorwritten approval of the Architectural Committee . All decisionsof the Architectural Committee shall be final and no Owner or

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other parties shall have recourse against the ArchitecturalCommittee for its refusal to approve any such plans andspecifications or plot plan, including lawn area and landscaping.

Section 6 .7 . Temporary Occupancy . No trailer,basement of any incomplete building, tent, shack, garage or barn,and no temporary buildings or structure of any kind shall be usedat any time, on any portion of the Property, for a residence,either temporary or permanent . Temporary buildings or structuresused during the construction of a dwelling on any such propertyshall be removed immediately after the completion ofconstruction.

Section 6 .8 . Trailers and Motor Vehicles . No motorvehicle classed by manufacturer rating as exceeding 3/4-ton,mobile home, travel trailer, tent trailer, trailer, camper shell,detached camper, boat, boat trailer, or other similar equipmentor vehicle may be parked, maintained, constructed, reconstructedor repaired on any Lot or on any street so as to be Visible FromNeighboring Property ; provided, however, that the provisions ofthis section shall not apply to pickup trucks of 3/4-ton or lesscapacity with camper shells not exceeding seven (7) feet inheight measured from ground level and mini-motor homes notexceeding seven (7) feet in height and eighteen (18) feet inlength which are used on a regular and recurring bases for basictransportation.

Section 6 .9 . Nuisances . No rubbish or debris of anykind shall be placed or permitted to accumulate upon or adjacentto any property, and no odors shall be permitted to arisetherefrom, so as to render any such property or any portionthereof unsanitary, unsightly, offensive or detrimental to anyother property in the vicinity thereof or to its occupants . Nonuisance shall be permitted to exist or operate upon any suchproperty so as to be offensive or detrimental to any otherproperty in the vicinity thereof or to its occupants . Withoutlimiting the generality of any of the foregoing provisions, noexterior speakers, horns, whistles, bells, or other sounddevices, except security devices used exclusively for securitypurposes, shall be located, used, or placed on any such property.

Section 6 .10 . Trash Containers and Collection . Nogarbage or trash shall be placed or kept on any property exceptin covered containers of a type, size and style which areapproved by the Architectural Committee . In no event shall suchcontainers be maintained so as to be Visible From NeighboringProperty except to make the same available for collection andthen, only for the shortest time reasonably necessary to effectsuch collection . The Board shall have the right to require all

00Owners to place their garbage or trash containers at a specific

wa.location for collection, or to require all Owners to subscribe toa trash collection service . All rubbish, trash, and garbageshall be removed from the Lots and shall not be allowed toaccumulate thereon. No incinerators shall be kept or maintainedon any Lot . No garbage or trash containers shall be kept or

toplaced on any grass or other landscaped area.

Section 6 .11 . Clothes Drying Facilities . Outside

oo/clotheslines or other outside facilities for drying or airing

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clothes shall not be erected, placed, or maintained on anyproperty so as to be Visible From Neighboring Property.

Section 6 .12 . Machinery and Equipment . No machineryor equipment of any kind shall be placed, operated, or maintained'upon or adjacent to any property except such machinery orequipment as is usual and customary in connection with the use,maintenance, or construction of a residence, appurtenantstructures, or other Improvements, and except that whichDeclarant or the Association may require for the operation andmaintenance of the Property.

Section 6 .13 . Restriction on Further Subdivision . NoLot shall be further subdivided or separated into smaller Lots orparcels by any Owner, and no portion less than all of any suchLot shall be conveyed or transferred by any Owner without theprior written approval of the Board.

Section 6 .14 . Signs . No signs whatsoever (including,but not limited to, commercial, advertising, political, andsimilar signs) shall be erected or maintained anywhere on theProperty including but not limited to, the inside or outside ofwindows in any building located on the Property, except suchsigns as may be required by legal proceedings or otherwiseapproved herein . The use of "for sale" or "for lease" signs isspecifically prohibited except as provided in Section 6 .15herein .

Section 6 .15 . Declarant's Exemption . Notwithstandingany other provision of the Project Documents, it shall beexpressly permissible for the Declarant or its duly authorizedagents, employees, and representatives to maintain during theperiod of the sale of Lots, such facilities, structures, andsigns as are necessary or convenient, in the sole opinion of theDeclarant, to the sale of the Lots, including, but withoutlimitation, a business office, storage area, construction yards,homes, and sales offices ; provided, however, that such use ofthe Common Area by the Declarant must be reasonable and must notinterfere with any Owner's use and enjoyment of the Common Area.

Section 6 .16 . ' Planting and Landscaping .

No plantingor landscaping shall be done, and no fences, hedges, or wallsshall be erected or maintained on any Lot without the priorwritten approval of the Architectural'Committee . In the eventDeclarant plants turf, ground cover, trees, bushes or otherlandscaping on the Lots prior to the sale of the Lots, the Boardshall have. the right to make rules requiring individual Owners,upon the purchase of such Lots, to maintain said landscaping, orarrange for the Association to perform such maintenance on a costreimbursement basis.

Section 6 .17 . Mineral Exploration . No property shallbe used in any manner to explore for, or to remove any water,oil, or other hydrocarbons, minerals of any kind, gravel, earth,or any earth substance of any kind.

Section 6 .18 . Diseases and Insects . No Owner shallpermit any thing or condition to exist upon any property whichshall induce, breed or harbor infectious plant diseases ornoxious insects.

Section 6 .19 . Trash and Debris . Each Owner of a Lot,

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I

when installing or constructing Improvements on the Lot, shallprovide a place for the daily collection and storage of trash anddebris and will remove such trash and debris on a reasonableschedule . No Owner of a Lot will allow any nuisance to occur onhis Lot or adjacent to his Lot other than the reasonable resultof construction activity . The Board shall be the sole judge asto whether on not undue nuisance is occurring and upon noticefrom the Board to the Lot Owner, any such nuisances identified bythe Board shall be corrected .

ARTICLE 7EASEMENTS

Section 7 .1 . Utility Easement . There is herebycreated a blanket easement upon, across, over, and under theCommon Area for ingress, egress, installation, replacing,repairing, and maintaining all utilities, including, but notlimited to water, sewers, gas, telephones, electricity, and acable television system. By virtue of this easement, it shall beexpressly permissible for the providing utility to erect andmaintain the necessary facilities and equipment on the CommonArea . This easement shall in no way affect any other recordedeasements on the Common Area.

Section 7 .2 . Easement for Encroachments . In theevent a wall, landscaping, or other approved Improvement on a Lotor the Common Area encroaches upon another Lot or the CommonArea, and such encroachment is inadvertent and has no significantadverse impact on the adjacent property, an easement for suchencroachment is hereby given and the right to determine whethersuch encroachment causes a significant adverse impact shall bedetermined by the Architectural Committee upon request by eitherof the parties . When such determination is made by theArchitectural Committee, that determination is binding on allparties .

Section 7 .3 . Easements for Ingress and Egress.Easements for ingress and egress are hereby reserved to theDeclarant, the Owners, and their family, guests, tenants, andinvitees for pedestrian traffic over, through and acrosssidewalks, paths, walks, and lanes as the same from time to timemay exist upon the Common Area ; and for vehicular traffic over,

..athrough and across such portions of the Common Area as from time

COto time may be paved and intended for such purposes ; and for such

►aother purposes reasonably necessary to the use and enjoyment .of a

c.0Lot or the Common Area.

Section 7 .4 . Association's Right of Entry . Duringreasonable hours, the Association, any member of the

OArchitectural Committee, any member of the Board or anyauthorized representative of them, shall have the right to enteruon and inspect any Lot, excluding the interior of any residencelocated thereon, for the purpose of making inspections todetermine whether the provisions of this Declaration, theAssociation Rules and the Architectural Committee Rules are being

13

complied with by the Owner of said Lot.Section 7 .5 . Association's Easement For Performing

Maintenance Responsibilities . The Association shall have aneasement upon, across, over and under the Common Area and theLots for the purpose of repairing, maintaining and replacing theCommon Area and those portions of the Lots which the Associationis obligated to maintain under Article 9 of this Declaration.

Section 7 .6 . Use and Drainage Easements Among Owners.Wherever drainage ; as estimated by the Declarant, flows from one(1) Lot under or through one (1) or more other Lots, saiddrainage flow shall not be impeded, diverted, or otherwisechanged . These easements shall include, but are not limited to,receiving the runoff from roofs and drainage under and throughgarden walls .

ARTICLE 8PROPERTY RIGHTS

Section 8 .1 . Owners' Easement of Enjoyment . EveryOwner shall have a right and easement of enjoyment in and to theCommon Area . Said easement shall be appurtenant to and shallpass with the title to every Lot subject to the followingprovisions :

(a) the right of the Association to adoptreasonable rules and regulations governing the use of theCommon Area and all facilities located thereon;

(b) the right of the Association to dedicate ortransfer all or any part of the Common Area to any publicagency, authority, or utility for such purposes andsubject to such conditions as may be agreed to by theMembers ; provided, however, that no such dedication ortransfer shall be effective unless evidenced by aninstrument signed by at least two-thirds (2/3) of eachclass of Members, except that the Board may make adedication for transfer without consent of the Members,providing such transfer is of minimal value and causes noadverse impact to the Members;

(c) the right of Declarant and its agents andrepresentatives, in addition to the rights set forthelsewhere in this Declaration, to the non-exclusive use,without charge, of the Common Area for maintenance ofsales facilities, and display and exhibit purposes.

Section 8 .2 . Delegation of Use . Any Owner may'delegate, subject to this Declaration and the Association Rules,his right of enjoyment to the Common Area and facilities to themembers of his family, his tenants, his guests or invitees,provided such delegation is for a reasonable number of personsand at reasonable times, and in accordance with reasonableAssociation rules.

Section 8 .3 . Limitations . An Owner's right andeasement of enjoyment in and to the Common Area shall not beconveyed, transferred, alienated or encumbered separate and apartfrom an Owner's Lot . Such right and easement of enjoyment in and

14

to the Common Area shall be deemed to be conveyed, transferred,alienated or encumbered upon the sale of any Owner's Lot,notwithstanding that the description in the instrument ofconveyance, transfer, alienation or encumbrance may not refer tothe Common Area .

ARTICLE 9MAINTENANCE

Section 9 .1 . Maintenance of Common Area by theAssociation . The Association shall be responsible for themaintenance, repair and replacement of the Common Area and may,without any approval of the Owners being required, do any of thefollowing :

(a) Reconstruct, repair, replace or refinishany Improvement or portion thereof upon any such area(to the extent that such work is not done by agovernmental entity, if any, responsible for themaintenance and upkeep of such area);

(b) Replace injured and diseased trees or othervegetation in any such area, and plant trees, shrubsand ground cover to the extent that the Board deemsnecessary for the conservation of water and soil andfor aesthetic purposes;

(c) place and maintain upon any such area suchsigns as the Board may deem appropriate for the properidentification, use and regulation thereof;

(d) do all such other and further acts whichthe Board deems necessary to preserve and protect theCommon Area and the appearance thereof, in accordancewith the general purposes specified in thisDeclaration.Section 9 .2 . Exterior Maintenance By Association . In

addition to the maintenance, repair and replacement of the CommonArea and the Improvements . located thereon, the Association shallmaintain, repair and replace the landscaping and otherImprovements on any area within or immediately adjacent toMacalester Park providing the Board agrees that such maintenanceshall be in the best interest of all the members and agrees tosuch maintenance in writing.

Section 9 .3 . MaintenanceByOwners . , Each Owner shallbe solely responsible for that portion of the aintenance, repairand replacement of his Lot and Improvements which are notmaintained by the Association as described in sections 9 .1 and9 .2 .

Section 9 .4 . Damageor Destruction of Common Area byOwners . No Owner shall in any way damage or destroy any CommonArea or interfere with the activities of the Association, inconnection therewith . No Owner shall in any way interfere withthe maintenance responsibilites of the Association, including,but not limited to, landscaping, street maintenance, and wallmaintenance .

Any expenses incurred by the Association by reasonof•any such act of an Owner, his grantees or assignees, shall be

15

paid by said Owner, upon demand, to the Association to the extentthat the Owner is liable therefor under Arizona law, and suchamounts shall be a lien on any Lots owned by said Owner and theAssociation may enforce collection of any such amounts in thesame manner as provided elsewhere in this Declaration for thecollection and enforcement of assessments.

Section 9 .5 . Nonperformance by Owners . If any Ownerfails to maintain any portion of his Lot, and the Improvementslocated thereon, which he is obligated to maintain under theprovisions of the Project Documents, the Association shall havethe right, but not the obligation, after fourteen (14) daysnotice, to enter upon such Owner's Lot to perform by themaintenance and repairs not performed by the Owner, and the costof any such work performed by or at the request of theAssociation shall be paid for by the Owner of the Lot, upondemand from the Association, and such amounts shall be a lienupon the Owner's Lot and the Association may enforce collectionof such amounts in the same manner and to the same extent asprovided elsewhere in this Declaration for the collection andenforcement of assessments .

ARTICLE 10PARTY WALLS

Section 10 .1 . Riqhts and Duties of Adjoininq Owners.The rights and duties of Owners of Lots with respect to partywalls shall be governed by the following provisions:

(a) Each wall or fence which is placed on thedividing line between separate Lots shall constitute aparty wall . With respect to any such wall, each of theadjoining Owners shall assume the burden and be entitledTo the benefit of the restrictive covenants contained inThis Declaration, and to the extent not inconsistent withthis Declaration, the general rules of law regarding partywalls shall be applied;

(b) The cost of reasonable repair andmaintenance of a party wall shall be shared by theadjoining Owners of such wall in proportion to the usethereof, without prejudice, however, to the right of anyOwner to call for a larger contribution from the adjoiningOwner under any rule of law regarding liability fornegligent or willful acts or omissions;

(c) In the event any such party wall is damagedor destroyed by some cause other than the act of one (1)of the adjoining Owners, his agents, tenants, licensees,guests or family (including ordinary wear and tear anddeterioration from lapse of time) then, in such event,both such adjoining Owners shall proceed forthwith torebuild or repair the same to as good condition asformerly at their joint and 'equal expense;

(d) notwithstanding any other provision of this

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Article, an Owner who, by his negligent or willful act,causes any party wall to be exposed to the elements shallbear the whole cost of furnishing the necessary protectionagainst such elements;

(e) The right of any Owner to contribution fromany other Owner under this Article shall be appurtenant tothe land and shall pass to such Owners and theirsuccessors in title;

(f) In addition to meeting the otherrequirements of this Declaration and of any other citycode or similar regulations or ordinances, any Ownerproposing to modify, make additions to build or rebuild aparty wall in any manner which requires construction,extension or other alteration, shall first obtain thewritten consent of the adjoining Owner and theArchitectural Committee;

(g) In the event of a dispute between Ownerswith respect to the repair or the rebuilding of a partywall or with respect to sharing of the cost thereof, then,upon written request of one of such Owners addressed tothe Association, the matter shall be submitted to theArchitectural Committee whose decision shall be final.

(h) The provisions of this Article shall bebinding upon the heirs and assigns of any Owners, but noperson -shall be liable for any act or omission respectingthe party wall except such as took place while he was anOwner .

ARTICLE 11INSURANCE

Section 11 .1 . Scope of Coverage . Commencing notlater than the time of the first conveyance of a Lot to a personother than the Declarant, the Association shall maintain adequateinsurance for liability, including officers and directorsliability, committees appointed by the Board, property, andfidelity .

Section 11 .2 . Certificates of Insurance . An insurerthat has issued an insurance policy under this Article shallissue certificates or a memorandum of insurance to theAssociation and, upon request, .to any Owner, mortgagee orbeneficiary under a deed of trust . any insurance obtainedpursuant to this article may not be cancelled until thirty (30)days after notice of the proposed cancellation has been mailed tothe Association, each Owner and each mortgagee or beneficiaryunder deed of trust to whom certificates of insurance have beenissued .

Section 11 .3 . RepairandReplacementofDamagedorDestroyed Property . Any portion of the Common Area damaged ordestroyed shall be repaired or replaced promptly by the

'Association unless (a) repair or replacement would be illegalunder any state or local health or safety statute or ordinance,

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or (b) Owners owning at least eighty percent (80%) of the Lotsvote not to rebuild . the cost of repair or replacement in excessof insurance proceeds and reserves shall be paid by theAssociation . If the entire Common Area is not repaired orreplaced, insurance proceeds attributable to the damaged CommonArea shall be used to restore the damaged area to a conditionwhich is not in violation of any state or local health or safetystatute or ordinance and the remainder of the proceeds shall bedistributed to the Owners on the basis of an equal share for eachLot .

ARTICLE 12GENERAL PROVISIONS

Sectioh 12 .1 . Enforcement . The Association, or anyOwner, shall have the right to enforce, by any proceeding at lawor in equity, all restrictions, conditions, covenants,reservations, liens and charges now or hereafter imposed by theprovisions of this Declaration . Failure by the Association or byany Owner to enforce any covenant or restriction herein containedshall in no event be deemed a waiver of the right to do sothereafter .

.Section 12 .2 . Severability . Invalidation of any one

of these covenants or restrictions by judgement or court ordershall in no way affect any other provisions which shall remain infull force and effect.

Section 12 .3 . Duration . The covenants andrestrictions of this Declaration shall run with and bind theProperty for a term of twenty (20) years from the date thisDeclaration is recorded, after which time they shall beautomatically extended for successive periods of ten (10) years.

Section 12 .4 . Amendment by Owners . This Declarationmay be amended during the first twenty (20) year period by aninstrument signed by Owners representing not less than ninetypercent (90%) of the Lots, and thereafter by an instrument signedby Owners representing not less than seventy-five percent (75%)of the Lots . Any amendment must be recorded.

Section 12 .5 . Amendment by Board . Notwithstandinganything to the contrary in this Declaration, the Board shallhave the right but not the obligation to amend this Declaration,without obtaining the approval or consent of any other Owner ormortgagee, in order to conform the Declaration to therequirements or guidelines of the Federal National Mortgage .Association, the Federal Home Loan Mortgage Corporation, theFederal Housing Administration, the Veterans Administration orother Government or Government approved agencies when suchmodification is required to qualify for the use of the services,insurance, or other guarantees provided by such agencies.

Section 12 .6 . ViolationsandNuisance . Every act oromission whereby any provision of this Declaration is violated inwhole or in part is hereby declared to be a nuisance and may beenjoined or abated, whether or not the relief sought is for

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negative or affirmative action, by Declarant, the Association orany Owner .

Section 12 .7 . Violation of Law . Any violation of anystate, municipal, or local law, ordinance or regulation,pertaining to the ownership, occupation or use of any propertywithin the Property is hereby declared to be a violation of thisDeclaration and subject to any or all of the enforcementprocedures set forth herein.

Section 12 .8 . Remedies Cumulative . Each remedyprovided herein is cumulative and not exclusive.

Section 12 .9 . Delivery of Notices and Documents . Anywritten notice or other documents relating to or required by thisDeclaration may be delivered either personally or by mail . if bymail, it shall be deemed to have been delivered twenty-four hoursafter a copy of same has been deposited in the United Statesmail, postage prepaid, addressed as follows : If to theAssociation, at 5210 E . Williams Circle, Suite 300, Tucson, AZ85711 ; if to the Architectural Committee, at 5210 E . Williams.Circle, Suite 300, Tucson, AZ 85711 ; if to an Owner, to theaddress of his Lot or to any other address last furnished by theOwner to the Association ; and if to Declarant, at 5210 E.Williams Circle, Suite 300, Tucson, AZ 85711 ; provided, however,that any such address may be changed at any time by the partyconcerned by recording a written notice of change of address anddelivering a copy thereof to the Association . Each Owner of aLot shall file the correct mailing address of such Owner with theAssociation, and shall promptly notify the Association in writingof any subsequent change of address.

Section 12 .10 . Binding Effect . By acceptance of adeed or by acquiring any interest in any of the property subjectto this Declaration, each person or entity, for himself oritself, his heirs, personal representatives, successors,transferees and assigns, binds himself, his heirs, personalrepresentatives, successors, transferees and assigns, to all ofthe provisions, restrictions, covenants, conditions, rules, andregulations now-or hereafter imposed•by this Declaration and anyamendments thereof . In addition, each such person by so doingthereby acknowledges that this Declaration sets forth a generalscheme for the improvement and development of the Property andhereby evidences his interest that all the restrictions,conditions, covenants, rules and regulations contained in thisDeclaration shall run with the land and be binding on allsubsequent and future Owners, grantees, purchasers, assignees,lessees and transferees thereof . Furthermore, each such person

'fully understands and acknowledges that this Declaration shall bemutually beneficial, prohibitive and enforceable by the varioussubsequent and future Owners . Declarant, its successors, assignsand grantees, covenants and agrees that the Lots and themembership in the Association and the other rights created bythis Declaration shall not be separated or separately conveyed,and each shall be deemed to be conveyed or encumbered with itsrespective Lot even though the description in the instrument ofconveyance or encumbrance may refer only to the Lot.

Section 12 .11 . Management Agreements . Any agreement

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for professional management of the Association or the Project orany other contract providing for services of the Declarant, orother developer, sponsor or builder of the Project shall notexceed one year . Any such agreement must provide for terminationby either party without cause and without payment of atermination fee on thirty (30) days or less written notice.

Section 12 .12 . Gender . The singular, wherever usedin this Declaration, shall be construed to mean the plural whenapplicable, and the necessary grammatical changes required tomake the provisions of this Declaration apply either tocorporations or individuals, men or women, shall in all cases beassumed as though in each case fully expressed.

Section 12 .13 . Topic Headings . The marginal ortopical headings of the sections contained in this Declarationare for convenience only and do not define, limit or construe thecontents of the sections or this Declaration.

Section 12 .14 . Survival of Liability . Thetermination of membership in the Association shall not relieve orrelease any such former Member from any liability or obligationincurred under or in any way connected with the Associationduring the period of such membership, or impair any rights orremedies which the Association may have against such formerMember arising out of, or in any way connected with suchmembership and the covenants and obligations incident thereto.

Section 12 .15 . Construction . In the event of anydiscrepancies, inconsistencies or conflicts between theprovisions of this Declaration and the Articles, Bylaws,Association Rules or Architectural Committee Rules, theprovisions of this Declaration shall prevail.

Section 12 .16 . Joint and Several Liability . In thecase of joint ownership of a Lot, the liabilities and obligationsof each of the joint Owners set forth in or imposed by thisDeclaration, shall be joint and several.

Section 12 .17 . Attorneys' Fees . In the event theAssociation employs an attorney to enforce any lien granted to itunder the terms of this Declaration or to collect any assessmentsor other amounts due from an Owner or to enforce compliance withor recover damages for any violation or noncompliance with theProject Documents, the prevailing party in any such action shallbe entitled to recover from the other party its reasonableattorneys' fees incurred in any such action.

Section 12 .18 . Declarant's Right To Use Similar Name.The Association hereby irrevocably consents to the use by anyother nonprofit corporation which may be formed or incorporatedby Declarant of a corporate name which is the same or deceptivelysimilar to the name of the Association provided one or more wordsare added to the name of such other corporation to make the nameof the Association distinguishable from the name of such othercorporation . Within five (5) days after being requested to do soby the Declarant, the Association shall sign such letters,documents or other writings as may be required by the ArizonaCorporation Commission in order for any other corporation formedor incorporated by the Declarant to use a corporate name which isthe same or deceptively similar to the name of the Association .

-.100►p•

}-+

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IN WITNESS WHEREOF, Fidelity National Title Agency,Inc ., an Arizona corporation, as Trustee under Trust No . 50,000,has hereunto caused its name to be signed by the signatures ofits duly authorized officials as of the day and year first above.

Fidelity National TitleAgency, Inc.an Arizona corporation,as Trustee under Trust No . 50,000, and

STATE OF ARIZONA ).) ss

County of Pima )

.The foregoing Declaration was acknowledged before methis 23rd day of July 1986, by Kevin French as Trust Officera duly authorized officer of Fidelity National Title Company, as

y, 0 T4 -Io .

not in its r,,prporate capacity

"1; M

'My:'Ccnttinii.ssion Expires :

4Nota y Public

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