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F. QNN RUDRIEUEE,RECORDED BY: DB9
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CONDOMINIUM DECLARATION FORVISTOSO RESORT CASITAS CONDOMINIUM
HOMEOWNERS ASSOCIATION, INC.
INDEX
DEFINITIONS . . . . . . . . .General DefinitionsDefined Terms
SUBMISSION OF PROPERTY; UNITALLOCATION OF PERCENTAGE INTERESTS,COMMON EXPENSE LIABILITIES . . . .Submission of Property . . .Unit Boundaries . . . . . . . . . . . . . .Allocation of Common Element Interest, VotCommon Expense Liabilities . . . . .Allocation of Votes in the Association
Allocation of Limited Common Elements . . .Development and Special Declarant Rights .Expansion of the Condominium. . . . . . .
EASEMENTSUtility Easement . . . . . . . . . . .Easements for Ingress and Egress . . . .Unit Owners’ Easements of EnjoymentDeclarant’s Use for Sales and Leasing PurposesDeclarant’s Easements . . . . . . . . .Easement for Support . . . .Common Elements Easement inAssociation . .
Favor ofQCommon Elements Easement in Favor of Unit Owners .Units, Garages and Limited Common Elements Easementin Favor of Association . . . . . . . . .Easement for Encroachments . . . .
USE AND OCCUPANCY RESTRICTIONSSingle Family Residential UseSolar and Radio/TelevisionDevices . . . . . . . . .Utility Service . . . . .Improvements and Alterations . . . . . .Trash Containers and Collection . . . . . .Machinery and Equipment . . . . . . . . . .Temporary Occupancy . . . . . . . . . . .Clothes Drying Facilities . . . . . . . . .Mineral Exploration . . . . . . . . . . . .Diseases and Insects . . . . . . . . . .Motor Vehicles . . . . . . . . . . . . . .Lawful Use . . . . . . . . . . . . . . . .
H5
BOUNDARIES;VOTES AND
es and
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Signal Collection
Page
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1414
1515
1515151616161616171717
4.12 Nuisances and Offensive Activity . . . . . .4.13 Applicability of the Oro Valley Restrictions
0
ARTICLE 5 MAINTENANCE AND REPAIR OF COMMON ELEMENTS ANDUNITS . . . . . . . . . . . . . . . .
5. Duties of the Association5.1 Duties of Unit Owners . . . . . . . . .5.2 Repair or Restoration Necessitated by Owner
ARTICLE 6 THE .ASSOCIATION; RIGHTS AND DUTIES,MEMBERSHIP . . . . . . . . . . . . . . . . . . . . . .6. Rights, Powers and Duties of the Association6.1 Directors and Officers . . . . . . . . . . . . .6.2 Rules . . . . . .6.3 Architectural Committee6.4 Composition of Members . . .
ARTICLE 7 ASSESSMENTS . . . . . . . . . . . . . . .;L,7. Preparation of Budget . . . .7.1 Common Expense Assessment.7.2 special Assessments . . . . . . . . . . . . . . . .7.3 Notice and Quorum for any Action Authorized Under
Sections 7.1 or 7.2 . . . . . . . . .7.4 Individual Service Assessments . . . . . . . . .7.5 Effect of Ncnpayment of Assessments; Remedies of
the Association . . . . . . . . . . . .7.6 Subordination of Assessment Lien to Mortgages7.7 Exemption of Unit Owner . . . . . . . . . . .7.8 Certificate of Payment . . . . . . .7.9 No Offsets . . . . . . . . . . . . . . . . . .7.10 Surplus Funds . . . . . . . . . . . . . . . . . .7.11 Monetary Penalties . . . . . . . . .7.12 Working Capital Fund . . . . . . . .
ARTICLE 8 INSURANCE . . . . . . . . . . . . . . .
ARTICLE 9 RIGHTS OF FIRST MORTGAGEES . . . . . .9. Notification to First Mortgagees . . . . . . . . .9.1 Approval Required for Amendment to Declaration,
Articles or Bylaws . . . . . . . . . . . . . . .9.2 Prohibition Against Right of First Refusal9.3 Right of Inspection of Records . . . . . .9.4 Prior Written Approval of First Mortgagees .9.5 Liens Prior to First Mortgage . . . . . . . .9.6 Condemnation or Insurance Proceeds .9.7 Limitation on Partition and Subdivision9.8 Conflicting Provisions . . . . . . . . .
ARTICLE 10 GENERAL PROVISIONS . . . . . . . . . .10. Enforcement . . . . . . . . . . . . . . . . . .10.1 Severability . . . . . . . . . . . . . . . . .10.2 Duration . . . . . . . . . . . . . . . . . . .
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18181818
191919202020
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2324
2424252525252526
26
2929
3031313232333333
33333434
10.310.410.510.610.710.810.910.1010.1110.1210.1310.1410.1510.1610.17
IOMI3
Termination of CondominiumAmendment . . .Remedies CumulativeNotices . . .Binding EffectGender . .Topic HeadingsSurvival of LiabilityConstructionJoint and Several iiabilit§Guests and TenantsAttorneys’ FeesNumber of Days . .Declarant’s Right to UsNotice of Violation
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CONDOMINIUM DECLARATIONFOR
VISTOSO RESORT CASITAS CONDOMINIUM I-IOMEOWNERS ASSOCIATION, INC.
THE CONDOMINIUMS DECLARATION is made this day of , 1996,by First American Title Insurance Company, A California Corporation, as Trustee under Trust No.4728.
ARTICLE 1
DEFINITIONS
1. General Defi nitions. Capitalized terms not otherwise defined in this Declarationshall have the meanings specified for such terms in the Arizona Condominium Act, A.R.S. 33-
1201, e_t seg,
1.1 Defi ned Terms. The following capitalized terms shall have the generalmeanings described in the Act and for purposes of this Declaration shall have the specific meaningsset forth below:
(A) “Additional Property” means the real property located in Pima County,Arizona, which is described on the plat as Building 1 through Building 13, and Building 15 throughBuilding 21, together with any improvements located thereon and all easements, right andappurtenances thereto.
(B) “Adjoining Unit or Garage” means the Unit or Garage which shares acommon party wall with another Unit or Ga-rage.
(C) “Architectural Committee” means the committee established pursuantto Section 6.3 of this Declaration.
(D) “Architectural Committee Rules” means the rules adopted by theArchitectural Committee, as they may be amended from time to time.
(B) “Articles” means the Articles of Incorporation of the Association, asthey may be amended from time to time.
(F) “Assessments” means the Common Expense Assessment and SpecialAssessments levied and assessed against each Unit pursuant to Article 7 of this Declaration.
(G) “Assessment Lien” means the lien granted to the Association by theCondominium Act to secure the payment of Assessments, monetary penalties and other chargesowed to the Association.
IOUI3
(H) “Association” means the Arizona nonprofit corporation organized bythe declarant to administer and enforce the Condominium Documents and to exercise the rights,powers and duties set forth therein, and its successors and assigns. Declarant intends to organize theAssociation under the name of “Vistoso Resort Casitas Condominium Homeowners Association,Inc." but if such name is not available, the Declarant may organize the Association under such othername as the Declarant deems appropriate.
(1) “Board of Directors” means the Board of Directors of the Association.
(J) “Building” means the structures designated as buildings on the Plat.
(K) “Bylaws” means the Bylaws of the Association, as they may beamended from time to time.
(L) “Common Elementsfmeans all portions of the Condominium otherthan the Units and the Garages.
(M) “Common Expenses” means expenditures made by or financialliabilities of the Association, together with any allocations to reserves.
(N) “Common Expense Assessment” means the assessment levied againstthe Units pursuant to Section 7.1 of this Declaration.
(0) “Common Expense Liability” means the liability for commonexpenses allocated to each Unit by this Declaration.
(P) “Condominium” means the real property located in Pima County,Arizona, which is described in Exhibit A attached to this Declaration, together with all buildingsand other Improvements located thereon and all easements, rights, and appurtenances belongingthereto.
(Q) “Condominium Act"" means the Arizona Condominium Act, A.R.S.33-1201, Q $1., as it may from time to time be amended.
(R.) “Condominium Documents” means this Declaration and the Articles,Bylaws, Rules and Architectural Committee Rules.
(S) “Declarant” means First American Title Insurance Company, aCalifornia Company, As Trustee under Trust No. 4728, and any person or entity to whom it mayspecifically transfer in writing any Special Declarant Right.
l0l+li3 (M9
(T) "Declaration" means this CondominiumDeclaration, as it may be amended from time to time.
(U) "Development Rights" means any right orcombination of rights reserved by or granted to the Declarant inthis Declaration to do any of the following:
(i) Add real estate to the Condominium;
(ii) Create easements, Units, Common Elementsor Limited Common Elements within the Condominium;
(iii) subdivide Units, convert Units orGarages into Common Elements or convert Common Elements into Unitsor Garages;
(iv) Withdraw’ real estate from theCondominium;
(v) Make the Condominium part of a largercondominium or planned community;
(vi) Amend the Declaration during the Periodof Declarant Control to comply with applicable law or to correctany error or inconsistency in the Declaration if the amendment doesnot adversely affect the rights of any Unit Owner;
(vii) .Amend the Declaration during the Periodof Declarant Control to comply with (a) the Condominium Act, (b)the rules or guidelines, in effect from time to time, of anygovernmental or quasi-governmental entity or federal corporationguaranteeing or insuring mortgage loans or governing transactionsinvolving mortgage instruments including, without limitation, theFederal, National Mortgage .Association, the Federal Home LoanMortgage Corporation, the Federal Housing Administration.cnr theVeterans Administration, or (c) the rules or requirements of anyfederal, state or local governmental entity or agency whoseapproval of the Condominium, the Plat or the Condominium Documentsis required by law or requested by the Declarant.
(V) "Eligible Insurer or Guarantor" means aninsurer or governmental guarantor of a First Mortgage who hasrequested notice of certain matters in accordance with Section 9.0of this Declaration.
(W) "Eligible Mortgage Holder" means a FirstMortgagee who has requested notice of certain matters from theAssociation in accordance with Section 9.0 of this Declaration.
(X) "First Mortgage" means any mortgage or deed oftrust on a Unit with first priority over any other mortgage or deedof trust.
nouns u2o
(Y) "First.Mortgagee" means the holder of any FirstMortgage.
(Z) "Garage" means a portion of the Condominium asdescribed in this Declaration and as shown on the Plat that isdesignated for separate ownership and use for automobile parkingand residential storage. The right to own any Garage shall berestricted to Declarant and Unit Owners and shall be subject topurchase upon payment of additional consideration. A Unit Owner ofa Garage, at the Unit Owner’s election, may sell and convey suchGarage to another Unit Owner. No Garage may be subdivided.
(AA) "Improvement" means all physical structuresincluding, but not limited to, buildings, private drives, parkingareas, fences, and walls, and all landscaping, including, but notlimited to, hedges, plantings, trees, and shrubs of every type andkind. _
(BB) "Limited Common Elements" means a portion ofthe Common Elements specifically designated in this Declaration asa Limited Common Element and allocated by this Declaration or byoperation of the Condominium Act for the exclusive use of one ormore but fewer than all of the Units.
(CC) "Member" means any person, corporation,partnership, joint venture or other legal entity who is or becomesa member of the Association.
(DD) "Period of Declarant Control" means the timeperiod commencing on the date this Declaration is recorded with the_County Recorder of Pima County, Arizona, and ending on the earlierof:
(i) Ninety (90) days after the conveyance ofseventy—five percent (75%) of the Units to Unit Owners other thanthe Declarant; or
(ii) Four (4) years after Declarant has ceasedto offer Units for sale in the ordinary course of business.
(EE) "Person" means a natural person, corporation,business trust, estate, trust, partnership, association, jointventure, government, governmental subdivision or agency, or otherlegal or commercial entity, and in the case of a subdivision.trust,means the beneficiary of the trust who holds the right tosubdivide, develop or sell the real estate rather than the trust ortrustee.
(FF) "Plat" means the condominium plat for VistosoResort Casitas Condominiums, which plat has been recor ed with theCounty Recorder of Pima County, Arizona, in Bookpage .57. , and any amendments, supplements or corrections
4
loans puza
thereto, and any condominium plat which may be recorded over any
part of the Additional Property which is annexed by the Declarant
pursuant to this Declaration.
(GG) "Purchaser" means any Person, other than the
Declarant, who by means of a voluntary transfer becomes a Unit
owner except for (i) a Person who purchases a Unit and then leases
it to the Declarant for use as a model in connection with the sale
of other Units or (ii) a Person who, in addition to purchasing a
Unit, is assigned any Special Declarant Right.
(HH) "Rules" means the rules and regulations adopted
by the Association, as they may be amended from time to time.
(II) "Single Family" means a group of one or more
persons -each related to the other by blood, marriage or legal
adoption, or a group of persons not all so related, together with
their domestic servants, who maintain a common household in a'Unit.
(JJ) "Special Declarant Rights" means any right or
combination of rights reserved by or granted to the Declarant in
this Declaration or by the Condominium Act to do any of the
following:
(i) Construct improvements provided for in
this Declaration or shown on the Condominium Plat;
(ii) Exercise any Development Right;
(iii) Maintain sales offices, management
offices, models, and signs advertising the Condominium;
(iv) Use easements through the Common Elements
for the purpose of making improvements within the Condominium or
within the Additional Property;
(v) Appoint or remove any officer of the
Association or any member of the Board of Directors during the
Period of Declarant Control.
(KK) "Unit" means a portion of the Condominium as
described in this Declaration and as shown on the Plat that is
designated for separate ownership and residential occupancy.
(LL) "Unit Owner" means the owner of record whether
one or more Persons, of beneficial or equitable title (and legal
title if the same has merged with the beneficial or equitable
title) to the fee simple interest of a Unit and, at the Unit
0wner’s election, one or more Garages. Unit Owner shall not
include (i) persons or entities having an interest in a Unit merely
as security for the performance of an obligation, (ii) a lessee or
tenant of a Unit, or (iii) an individual or entity owning more than
5
nouns u22
50 percent (50%) of all of the Units. Unit Owner shall include apurchaser under a contract for the conveyance of real property, acontract for deed, a contract to convey, an agreement for sale orany similar contract through which a Seller has conveyed to apurchaser equitable title in a Unit under which the seller iscmfligated to convey to the purchaser the remainder of seller'stitle in the Unit, whether legal or equitable, on payment in fullof all monies due under the contract. Unit Owner shall not includea purchaser under a purchase contract and receipt, escrowinstructions or similar executory contracts which are intended tocontrol the rights and obligations of the parties to executorycontracts pending the closing of a sale or purchase transaction.In the case of Units the fee simple title to which is vested in atrustee pursuant to Arizona Revised Statutes, Section 33-801, g;seg., the Trustor shall be deemed to be the Unit Owner. In thecase of Units the fee simple title to which is vested in a trusteepursuant;to a subdivision trust agreement or similar agreement, thebeneficiary of any such trust who is entitled to possession of theUnit shall be deemed to be the Unit Owner.
(MM) "Visible From Neighboring Property" means, withrespect to any given object, that such object is or would bevisible to a person six feet tall, standing on any part of suchneighboring property at an elevation equal to the greater of theelevation of the base of the object being viewed or the groundlevel of any portion of the Common Elements.
ARTICLE 2
SUBMISSION OF PROPERTY; UNIT BOUNDARIES;ALLOCATION OF PERCENTAGE INTERESTS,
VOTES AND COMMON EXPENSE LIABILITIES
2. Submission of Prgperty. The real property described on Exhibit “A“'attached to this Declaration and shown on the Plat as Building Fourteen (14)and Building Twenty—two (22) totaling 12 Units and 9 Garages, together withall improvements, easements, rights, and appurtenances thereto, is herebysubmitted to a Condominium in accordance with the provisions of theCondominium Act. The identifying numbers of the Units in Building 14 are 140through 142, 240 through 242, and garages G37 through G39. The identifyingnumbers of the Units in Building 22 are 164 through 166, 264 through 266, andgarages G61 through G66. The identifying numbers of the Units in Building 1are 101 through 103, 201 through 203, and garages G1 through G3. Theidentifying numbers of the Units in Building 2 are 104 through 106, 204through 206, and garages G4 through G6. The identifying numbers of the Unitsin Building 3 are 107 through 109, 207 through 209, and garages G7 through G9.The identifying numbers of the Units in Building 4 are 110 through 112, 210through 212, and garages G10 through G12. The identifying numbers of theUnits in Building 5 are 113 through 115, 213 through 215, and garages G13through G15. The identifying numbers of the Units in Building 6 are 116through 118, 216 through 218, and garages G16 through G18. The identifyingnumbers of the Units’ in Building 7 are 119 through 121, 219 through 221, andgarages G19 through G21. The identifying.numbers of the Units in Building 8are 122 through 124, 222 through 224, and garages G22 through G24. Theidentifying numbers of the Units in Building 9 are 125 through 127, 225through 227, and garages G25 through G27. The identifying numbers of theUnits in Building 10 are 128 through 130, 228 through 230, and garages G28
nouns uzs
through G30. The identifying numbers of the Units in Building 11 are 131through 133, 231 through 233, and garages G31 through G33. The identifyingnumbers of the Units in Building 12 are 134 through 136, 234 through 236, andgarages G34 through C36. The identifying numbers of the Units in Building 13are 137 through 139 and 237 through 239. The identifying numbers of the Unitsin Building 15 are 143 through 145, 243 through 245, and garages G40 throughG42. The identifying numbers of the Units in Building 16 are 146 through 148,246 through 248, and garages G43 through G45. The identifying numbers of theUnits in Building 17 are 149 through 151, 249 through 251, and garages G46through G48. The identifying numbers of the Units in Building 18 are 152through 154, 252 through 254, and garages G49 through G51. The identifyingnumbers of the Units in Building 19 are 155 through 15?, 255 through 257, andgarages G52 through G54. The identifying numbers of the Units in Building 20are 158 through 160, 258 through 260, and garages G55 through G57. Theidentifying numbers of the Units in Building 21 are 161 through 163, 261through 263, and garages G58 through G60. The Condominium created by thisDeclaration may be expanded in accordance with the provisions of thisDeclaration. Building 1, Building_ 2, Building 3, Building 4, Building 5,Building 6, Building '7, Building 8, Building 9, Building 10, Building 11,Building 12, Building 13, Building 15, Building 16, Building 17, Building 18,Building 19, Building 28, and Building 21 shall be unconditionally subjectedto the Condominium at such time as an amendment of annexation is recorded inthe Office of the Pima County Recorder{s Office and the sale of the first unitin each building is consummated. " '
2.1 Unit Boundaries.
(A) The boundaries of each Unit or Garage are theinterior finished surfaces of the three exterior perimeter walls;the floor and ceiling of the Unit or Garage and the interior partywall to a-depth equal to one—half of its width. All lath, furring,wallboard, plasterboard, plaster, stucco, paneling, tiles,wallpaper, paint, finished flooring and any other materialsconstituting any part of the interior surfaces are a part of theUnit or Garage.
(B) If any chute, flue, duct, wire, conduit,bearing wall, bearing column, heating or air conditioning unit orapparatus or other fixtures lies partially within and partiallyoutside the boundaries of a Unit or Garage, any portion servingonly that Unit or Garage is a limited Common Element allocatedsolely to that Unit or Garage and any portion serving more than oneUnit or Garage is a part of the Common Elements.
(C) Subject to the provisions of Subsection (B) ofthis Section, all spaces, interior partitions and other fixturesand improvements within the boundaries of a Unit or Garage are partof the Unit or Garage.
(D) Any shutters, awnings, window boxes, doorsteps,stoops, porches, balconies, entryways, or patios, and all exteriordoors and windows or other fixtures designed to serve a singleUnit, but located outside of the Unit's boundaries, are LimitedCommon Elements allocated exclusively to that Unit.
(B) Declarant reserves the right to relocate theboundaries between adjoining Units or Garages owned by the
7
I;
Declarant and to reallocate such Unit’s Common Element interest,votes in the Association and Common Expense Liabilities subject toand in accordance with A.R.S. § 33-1222.
2.2 Allocation of Common Element Interest. Votes andCommon Expense Liabilities. The undivided interests in the CommonElements and in the Common Expenses of the Association shall beallocated equally among the Units. .Accordingly, until such time asadditional Phases are annexed, each Unit's percentage interest inthe Common Elements and in the Common Expenses of the Associationshall be 1/24.
2.3 Allocation of Votes in the Association. The votesin the Association shall be allocated equally among all the Unitswith each Unit having one (1) vote. No additional votes shall beallocated to any Unit Owner on account of ownership of one or moreGarages.
2.4 Allocation of Limited Common Elements.
(A) The following portions of the Common Elementsare Limited Common Elements and are allocated to the exclusive useof one Unit as follows:
(i) Each Unit is allocated the sidewalk, patioor balcony, if any, shown on the Plat as adjoining the Unit andwhich is designed for the exclusive use of the Unit;
(ii) Any gas or electric meter which servesonly one Unit is allocated to the Unit which it serves;
(iii) Each Unit is allocated those portions ofthe Common Elements designated as Limited Common Elements inSections 2.1(B) and (D) of this Declaration that serve the Unit;and
(iv) In the event a Unit Owner does not own aGarage, such Unit shall be allocated a covered parking space as aLimited Common Element.
(B) A Limited Common Element may be reallocated byan amendment to this Declaration made in accordance with theprovisions of Section 33-1218(B) of the Condominium Act.
(C) The.Declarant shall have thezright, pursuant toSection 33-1202(14) of the Condominium Act, to allocate as aLimited Common Element any portion of the Common Elements notpreviously allocated as a Limited Common Element. Any suchallocation shall only be made in accordance with the provisions ofSection 33—1218(C) of the Condominium Act.
|Uhh3 Q25
2.5 Development and Special Declarant Ridhts. Declarant
hereby expressly reserves the right, but not the obligation to do
any of the following:
(A) Construct the improvements provided for in the
Declaration or shown on the Condominium Plat.
(B) Create Easements, Units, Garages, Common
Elements or Limited Common Elements within the Condominium;
(C) subdivide Units, convert Units or Garages into
Common Elements or convert Common Elements into Units or Garages;
(D) Withdraw real estate from the Condominium;
(E) Make the Condominium part of a larger condo-
minium or planned community.
2.6 Expansion of the Condominium.
(A) Declarant hereby expressly reserves the right,
but not the obligation, to expand the Condominium created by this
Declaration, without the consent of any other Unit Owner, by
annexing and submitting to this Declaration all or any portion of
the Additional Property. 1&maDeclarant shall exercise its right to
expand the Condominiurnby executing and recording in the records of
every county in which any portion of the Condominium is located an
amendment to this Declaration containing the following:
(i) a legal description of the portion of the
Additional Property being annexed;
(ii) the number of Units and Garages being
added by the annexation and the Identifying Number assigned to each
new Unit or Garage;
(iii) a description of the Common Elements
and Limited Common Elements created and, in the case of Limited
Common Elements, a designation of the Unit or the Garage to which
each Limited Common Element is allocated;
(iv) a reallocation to each Unit of a
percentage undivided interest in the Common Elements and in the
Common Expenses of the .Association and in "the ‘votes in the
Association, all of which shall be allocated equally to each Unit;
(v) a description of any Development Rightsreserved by the Declarant within the Additional Property beingannexed.
(B) The effective date for reallocating to each
Unit a percentage undivided interest in the Common Elements and in
9
l0l4lI3 ‘+26
the Common Expenses of the Association amd in the votes in the
Association shall be the date on which the amendment annexing
additional Units is recorded in the records of every county in
which any portion of the Condominium is located.
(C) This option to expand shall expire ten (10)years from the date of the recording this Declaration.
(D) The Additional Property may be added as a wholeat one time or in one or more portions at different times, or itmay never be added, and there are no limitations upon the order ofaddition or the boundaries thereof. The property submitted to theCondominium need not be contiguous, and the exercise of the optionas to any portion of the Additional Property shall not bar thefurther exercise of the option as to any other portions of theAdditional Property.
: (E) There are no limitations on the locations ordimensions of improvements to be located on the AdditionalProperty. No assurances are made as to what, if any, furtherimprovements will be made by Declarant on any portion of theAdditional Property.
(F) The Additional Property, when and if added tothe Condominium, shall be subject to the use restrictions containedin this Declaration and shall be subject in all respects to theCondominium Documents.
(G) Declarant makes no assurances as to the exactnumber of ‘Units which. shall be ladded to the Condominium ‘byannexation of all or any portion of the Additional Property, butthe number of Units added by any such annexation shall not exceedone hundred eight (108).
(H) All improvements to be constructed on anyportion of the Additional Property annexed into the Condominiumwill be substantially completed prior to the time at which suchportion of the Additional Property is annexed in accordance withthe provisions of this Section.
(I) Al1.taxes and other assessments relating to allor any portion of the Additional Property annexed into theCondominium covering any period prior to the time when such portionof the Additional Property is annexed in accordance with thisSection shall be the responsibility of and shall be paid for by theDeclarant.
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ARTICLE 3
EASEMENTS
3. Utility Easement. There is hereby created an easementupon, across, over and under the Common Elements for reasonableingress, egress, installation, replacing, repairing or maintainingof all utilities, including, but not limited to, gas, water, sewer,telephone, cable television, communication systems and electricity.By virtue of this easement, it shall be expressly permissible forthe providing utility company or Declarant in the event Declarantor'the.Association provides said services for Declarant or Associa-tion, to erect and_maintain the necessary equipment on the CommonElements, but no sewers, electrical lines, water lines, or otherutility or service lines may be installed or located on the CommonElements except as initially designed, approved and constructed bythe Declarant or as approved by the Board of Directors. Thiseasement shall in no way affect any other recorded easements on theCommon Elements.
3.1 Easements for Indress and Edress. There is herebycreated easements for ingress and egress for pedestrian trafficover, through and across sidewalks, stairs, paths, walks and lanesthat from time to time may exist upon the Common Elements. Thereis also created an easement for ingress and egress for pedestrianand vehicular traffic over, through and across such driveways andparking areas as from time to time may be paved and intended forsuch purposes except that such easements shall not extend to anyLimited Common Elements. Such easements shall run in favor of andbe for the benefit of the Unit Owners and occupants of the Unitsand their guests, families, tenants and invitees.
3.2 Unit Ownersf Easements of Enjoyment.
(A) Every Unit Owner shall have a right and ease-ment of enjoyment in and to the Common Elements, except for theLimited Common Elements, which right and easement shall beappurtenant to and shall pass with the title to every Unit, subjectto the right of the Association to adopt reasonable rules andregulations governing the use of the Common Elements.
(B) A.Unit Owner's right and easement of enjoymentin and to the Common Elements shall not be conveyed, transferred,alienated or encumbered separate and apart from.a Unit. Such rightand easement of enjoyment in and to the Common Elements shall bedeemed to be conveyed, transferred, alienated or encumbered uponthe sale of any Unit, notwithstanding that the description in theinstrument of conveyance, transfer, alienation or encumbrance maynot refer to such right and easement.
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(C) The provisions of this Section shall not applyto any of the Limited Common Elements that are allocated to one ormore but less than all of the Units.
3.3 Qgclarant’s Use for Sales and Leasing Purposes.
(A) Declarant shall have the right and an easementtoimaintain sales or leasing offices, management offices and.modelsthroughout the Condominium and to maintain one or more advertisingor sales signs on the Common Elements for such period as theDeclarant shall deem appropriate. Declarant reserves the right toplace models, management offices and sales and leasing offices inany Units owned by Declarant and on any portion of the CommonElements in such number, of such size and in such locations asDeclarant deems appropriate.
(B) Declarant ,may from time to time relocatemodels, management offices and sales and _leasing offices todifferent locations within the Condominium.
(C) So long as Declarant is marketing Units in theCondominium, Declarant shall have the right to restrict the use ofthe parking spaces which are not allocated as Limited CommonElements. Such right shall include reserving such spaces for useby prospective Unit purchasers, Declarant's employees and othersengaged in sales, leasing, maintenance, construction or managementactivities.
(D) The Declarant reserves the right to retain allpersonal property and equipment used in time sales, management,construction and maintenance of the Condominium that has not beenrepresented as property of the Association. The Declarantreserves the right to remove from the Condominium any and all goodsand improvements used in development, marketing and construction,whether or not they have become fixtures.
3.4 Declarant’§ Easements.
(A) Declarant shall have the right and an easementon and over the Common Elements to construct the Common Elementsand the Units and the Garages shown on the Plat and all otherbuildings and improvements the Declarant may deem necessary and touse the Common Elements and any Units or Garages owned by Declarantfor construction or renovation related purposes including thestorage of tools, machinery, equipment, building materials,appliances, supplies and fixtures, and the performance of workrespecting the Condominium.
(B) Declarant shall have the right and an easementon, over and under those portions of the Common Elements andLimited Common Elements not located within the Buildings for thepurpose of maintaining and correcting drainage of the surface, roof
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or storm water. The easement created tar this Subsection
expressly includes the right to cut any trees, bushes, or
shrubbery, to grade the soil or to take any other action reasonably
necessary.
(C) During the Period of Declarant Control and fora period of two (2) years thereafter the Declarant shall have aneasement through the Units and the Garages for any access necessaryto complete any renovations, warranty work or modifications to beperformed by Declarant.
(D) The Declarant shall have the right and aneasement on, over, and through the Common Elements as may bereasonably necessary for the purpose of discharging his obligationsand exercising Special Declarant Rights whether arising under theCondominium Act or reserved in this Declaration.
3.5 Easement for Support. To the extent necessary, each
Unit or Garage shall have an easement for structural support overevery other Unit or Garage in the Building, the Common Elements andthe Limited Common Elements, and each Unit or Garage and the Common
Elements shall be subject to an easement for structural support in
favor of every other Unit or Garage in the Building, the CommonElements and the Limited Common Elements.
3.6 Common Elements Easement in Favor of theAssociation. The Common Elements shall be subject to an easementin favor of the Association and the agents, employees andindependent contractors of the Association for the purpose of theinspection, upkeep, maintenance, repair and replacement of theCommon Elements.
3.7 Common Elements Easement in Favor of Unit Owners.The Common Elements and Limited Common Elements shall be subject tothe following easements in favor of the Units or Garagesbenefitted:
(A) For the installation, repair, maintenance, use,removal or replacement of pipes, ducts, heating and airconditioning systems, electrical, telephone and other communicationwiring and cables and all other utility lines and conduits whichare a part of or serve any Unit or Garage and which pass across or
through. a portion of the Common Elements or Limited CommonElements.
(B) For the installation, repair, maintenance, use,removal or replacement of lighting fixtures, electricalreceptacles, panel boards and other electrical installations whichare a part of or serve any Unit or Garage but which encroach intoa part of a Common Element and Limited Common Element adjacent tosuch Unit or Garage; provided that the installation, repair,maintenance, use, removal or replacement of any such item does not
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unreasonably interfere with the common use of any part of theCommon Elements, adversely affect either the thermal or acousticalcharacter of the Building or impair or structurally weaken theBuilding.
(C) ~For the maintenance of the encroachment of anylighting devices, outlets, medicine cabinets, exhaust fans,ventilation ducts, registers, grills and similar fixtures whichserve only one Unit or Garage but which encroach into any part ofthe Common Elements.
(D) For the performance of the Unit Owner'sobligation to maintain, repair, replace and restore those portionsof the Limited Common Elements that the Unit Owner is obligated tomaintain under Section 5.1(B) of this Declaration.
3.8 Units. Garages and Limited Common Elements Easementin Favor of Association. The Units, the Garages and the LimitedCommon Elements are hereby made subject to the following easementsin favor of the Association and its directors, officers, agents,employees and independent contractors:
(A) For inspection of the Units, the Garages andLimited Common Elements in order to verify the performance by UnitOwners of all items of maintenance and repair for which they areresponsible;
(B) For“ inspections maintenance, repair’ andreplacement of the Common Elements or the Limited Common Elementssituated in or accessible from such Units, Garages or LimitedCommon Elements;
(C) For correction of emergency conditions in oneor more Units, Garages or Limited Common Elements or casualties tothe Common Elements, the Limited Common Elements, the Units or theGarages.
(D) For the purpose of enabling the Association,the Board of Directors, the Architectural Committee or any othercommittees appointed by the Board of Directors to exercise anddischarge their respective rights, powers and duties under theCondominium Documents.
(E) For inspection of the Units, the Garages andthe Limited Common Elements in order to verify that the provisionsof the Condominium Documents are being complied with by the UnitOwners, their guests, tenants, invitees and the other occupants ofthe Unit.
3.9 Easement for Encroachments. To the extent that anyUnit, Garage or Common Element encroaches on any other Unit, Garageor Common Element as a result of original construction shifting or
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settling or alteration or restoration authorized by thisDeclaration, a valid easement for the encroachment, and for themaintenance thereof, exists.
ARTICLE 4
USE AND OCCUPANCY RESTRICTIONS
4. Single Family Residential Use. All Units and LimitedCommon Elements shall be used, improved and devoted exclusively toresidential use by a Single Family. All Garages shall be owned,used, improved and devoted exclusively to automobile parking andresidential storage by a Unit Owner. No gainful occupation,profession, trade or other nonresidential use shall be conducted onor in any Unit, Garage or Limited Common Elements, but a Unit Ownermay maintain his own personal professional library in his Unit,keep his personal business or professional records or accounts inhis Unit, or handle his personal business calls or correspondencefrom his Unit. -
4.1 Solar inui Radio/Television. Signal CollectionDevices. No Solar collection or energy device or equipment,including, without limitation, solar water heaters, solarelectrical generation units or solar ovens or cooking devices, maybe placed on or located on, upon or about a Unit or Garage or theroof or walls thereof or on, upon or about the ldmited CommonElements if the same is or shall be Visible From NeighboringProperty, nor shall any so—called "satellite dish" or television orradio reception device, including, without limitation, antennas,aerials or other form of collectors, nor any telescope or otherlike optical device, be placed or located on, upon or about a Unitor Garage or the roof or walls thereof, or on, upon or about theLimited Common Elements if the same is or shall be Visible FromNeighboring Property, without the advance written consent of theArchitectural Committee and the Board.
4.2 Utility Service. Except for lines, wires anddevices existing on the Condominium as of the date of thisDeclaration and maintenance and replacement of the same, no lines,wires, or other devices for the communication or transmission ofelectric current or power, including telephone, television, andradio signals, shall be erected, placed or maintained anywhere inor upon the Condominium unless they are contained in conduits orcables installed and maintained underground or concealed in, underor on Buildings or other structures approved by the ArchitecturalCommittee. No provision hereof shall be deemed to forbid theerection of temporary power or telephone structures incident to theconstruction of Buildings or structures approved by theArchitectural Committee.
4.3 Improvements and Alterations. Any Unit Owner maymake nonstructural additions, alterations and improvements within
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his Unit or Garage without the prior written approval of the
Architectural Committee, but such Unit Owner shall, to the extent
required by Arizona law, be responsible for any damage to other
Units or Garages and to the Common Elements which results from any
such alterations, additions or improvements. No Person shall make
any structural additions, alterations or improvements withir1a Unit
or Garage, unless prior to the commencement of each addition,
alteration or improvement, the Unit Owner receives the prior
written approval of the.Architectural Committee and an architect or
engineer, licensed :h1 Arizona, certifies that such. addition,
alteration or improvement will not impair the structural integrityof the Building within which such addition, alteration or
improvement is to be made. The Unit Owner shall, to the extent
required by Arizona law, be responsible for any damage to other
Units or Garages and to the Common Elements which results from any
such additions, alterations or improvements. Notwithstanding the
foregoing, no addition, alteration or improvement within a Unit or
Garage, whether structural or not, which would be visible from the
exterior of the Building in which the Unit or Garage is located,shall be made without the prior written approval of the Unit Owner
of any Adjoining Unit or Garage.
4.4 Trash Containers and Collection. No garbage or
trash shall be placed or kept on the Condominium except in covered
containers of a type, size and style which are approved by the Town
of Oro Valley. No incinerators shall be kept or maintained in any
Unit or Garage.
4.5 Machinery and Equipment. No machinery or equipmentof any kind shall be placed, operated or maintained upon the
Condominium except such machinery or equipment as is usual and
customary in connection with the use, maintenance or constructionof buildings, improvements or structures which are within the
permitted uses of such property, and except that which Declarant or
the Association may require.
4.6 Temporary Occupancy. No trailer, basement of any
incomplete building, tent, shack, garage, barn or other structure,and no temporary improvement of any kind shall be used at any time
for a residence either temporarily or permanently. Temporarybuildings or structures used during the construction of buildingsor structures approved by the Architectural Committee shall be
permitted but must be removed promptly upon completion of the
construction of the building or structure.
4.7 Clothes Drying Facilities, Outside clotheslines or
other outside facilities for drying or airing clothes shall not be
erected, placed or maintained on the Condominium.
4.8 Mineral Explorationl No portion of the Condominium
shall be used in any manner to explore for or to remove any water,
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oil or other hydrocarbons, minerals of any kind, gravel, earth, or
any earth substance of any kind.
4.9 Disease§_and Insects. No Unit Owner shall permit
any thing or condition to exist upon the Condominium which couldinduce, breed. or Iharbor infectious plant diseases. or noxiousinsects.
4.10 Motor Vehicles. Except for emergency repairs, noautomobile, motorcycle, motorbike or other motor vehicle shall be
constructed, reconstructed, serviced or repaired on any portion of
the Condominium so as to be Visible From Neighboring Property, andno inoperable vehicle may be stored or parked on any portion of the
Condominium so as to be Visible From Neighboring Property.
4.11 Lawful Use. It: immoral, improper, offensive, or
unlawful use shall be made of any part of the Condominium. Allvalid laws, zoning ordinances, and regulations of all governmental
bodies having jurisdiction over the Condominium shall be observed.Any violation of such laws, zoning ordinances or regulations shallbe a violation of this Declaration.
4.12 Nuisances and Offensive Activity. No nuisance shall
be permitted to exist or operate upon the Condominium, and noactivity shall be conducted.upon the Condominium which is offensiveor detrimental to any portion of the Condominium or any Unit Owneror other occupant of the Condominiurn No exterior speakers, horns,whistles, bells or other sound devices, except security or other
emergency’ devices used exclusively for security or emergency
purposes, shall be located, used or placed on the Condominium.
4.13 Applicability of the Oro Valley Restrictions. TheCondominium is affected by and subject to that certain Declarationof Restrictions dated April 11, 1986 and recorded April 11, 1986,in Docket 7761, pages 1493-1495; and Declaration of Covenants,Conditions, Restrictions and Easements for Rancho Vistoso datedSeptember 16, 1986, and recorded on September 17, 1986 in Docket
7871, pages 1688-1786, and re—-recorded on November 20, 1986 in
Docket 7915, pages 1281-1379; restated and recorded on April 24,
1987 in Docket 8021, pages 925-1024; amended and recorded on July
13, 1988 in.Docket 8327, pages 2058-2071; supplemented and.recorded
on March 15, 1989 in Docket 8494, pages 189-195; and amended and
recorded on September 25, 1989, in Docket 8629, pages 576-584; and
amended and recorded on May 5, 1995, in Docket 10037, pages 1540-
1545; all in the office of the Pima County, Arizona Recorder (the"Master 2Dec1aration"). Declarant. intends ‘that. the: provisions
herein contained are in addition, but subject and subordinate to,the applicable provisions of the Master Declaration (and theArticles, Bylaws, and Association Rules identified in the MasterDeclaration), and not in substitution therefor, and in the event of
any conflict or inconsistency between the provisions of thisDeclaration and the Master Declaration, the provisions of the
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Master Declaration shall control; provided, however, the DesignReview Guidelines adopted hereunder are intended in variousinstances to create a more stringent standard than that establishedwith respect to such development matters under the MasterDeclaration and, accordingly, such. differences_ are not "to beconsidered conflicts and the more stringent standard in each caseshall control. It is further specifically acknowledged that allmembers of the Association are also members of the VistosoCommunity Association (the "Master Association") identified in theMaster Declaration and are subject to all regular and specialassessments of the Master Association in addition to theassessments of the Association.
ARTICLE 5
MAINTENANCE AND REPAIR OFCOMMON ELEMENTS AND UNITS
5. Duties of the Association. The Association shallmaintain, repair and make necessary improvements to all CommonElements, whether located inside or outside the Units or Garages,except for the Limited Common Elements which the Unit Owners areobligated to maintain pursuant to section 5.1 of this Declaration.The cost of all such repairs and maintenance shall be a CommonExpense and shall be paid for by the Association.
5.1 Duties of Unit Owners.
(A) Each Unit Owner shall maintain, repair, replaceand restore, at his own expense, all portions of his Unit and anyGarage(s), subject to the Condominium Documents.
(B) Each Unit Owner shall be responsible for themaintenance and repair of the Limited Common Elements allocated tohis Unit pursuant to Section 2.1 or Section 2.4 of thisDeclaration, except.that any covered.parking space allocated to hisUnit shall be maintained by the Association.
(C) In the event a Unit Owner fails to dischargethe duties imposed in this Section 5.1 within thirty days following‘written demand from the Association that he do so, the Associationmay cause the required maintenance or repair to be performed andlevy a Special Assessment for the cost thereof. Said Assessmentshall be due collectable in the same manner as provided forcollection of other Assessments.
5.2 Egpair or Restoration Necessitated by Owner. EachUnit Owner shall be liable to the Association, to the extentprovided for by Arizona law, for any damage to the Common Elementsor the Improvements, landscaping or equipment thereon which resultsfrom the negligence or willful conduct of the Unit Owner. The costto the Association of any such repair, maintenance or replacements
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required by such act of a Unit Owner shall be paid by the UnitOwner, upon demand, to the Association. The Association mayenforce collection of any such amounts in the same manner and tothe same extent as provided for in this Declaration for thecollection of Assessments.
ARTICLE 6
THE ASSOCIATION; RIGHTS AND DUTIES, MEMBERSHIP
6. Riqhts. Powers and Duties of the Association. No laterthan the date on which the first Unit is conveyed to a Purchaser,the Association shall be organized as a nonprofit Arizonacorporation. The Association shall be the entity through which theUnit Owners shall act. The Association shall have such rights,powers and duties as are prescribed by law and as are set forth inthe Condominium Documents together with such rights, powers andduties as may be reasonably necessary in order to effectuate theobjectives and purposes of the Association as set forth in thisDeclaration and the Condominium Act. The Association shall havethe right to finance capital improvements in the Condominium byencumbering future Assessments if such action is approved by thewritten consent or affirmative vote of Unit Owners representingmore than fifty percent (50%) of the votes in the Association.Unless the Condominium Documents or the Condominium Actspecifically require a vote of the Members, approvals or actions tobe given or taken by the Association shall be valid if given ortaken by the Board.
6.1 Directors and Officers.
(A) During the Period of Declarant Control, theDeclarant shall have the right to appoint and remove the members ofthe Board of Directors and the officers of the Association who donot have to be Unit Owners.
(B) Upon the termination of the Period of DeclarantControl, the Unit Owner shall elect the Board of Directors whichmust consist of at least three members, all of whom must be UnitOwners. The Board of Directors elected by the Unit Owners shallthen elect the officers of the Association.
(C) The Declarant may voluntarily surrender hisright to appoint and remove the members of the Board of Directorsand the officers of the Association before termination of thePeriod of Declarant Control, and in that event the Declarant mayrequire, for the duration of the Period of Declarant Control, thatspecified actions of the Association or the Board of Directors, asdescribed in a recorded instrument executed by the Declarant, beapproved by the Declarant before they become effective.
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6.2 Rules. The Board of Directors, from time to timeand subject to the provisions of this Declaration and theCondominium Act, may adopt, amend, and repeal rules and regula-
tions. The Rules may, among other things, restrict and govern theuse of any area by any Unit Owner, by the family of such UnitOwner, or by any invitee, licensee or lessee of such Unit Owner;provided, however, that the Rules may not unreasonably discriminateamong Unit Owners and shall not be inconsistent with theCondominium Act, this Declaration, the Articles or Bylaws. A copyof the Rules as they may from time to time be adopted, amended orrepealed, shall be mailed or otherwise delivered to each Unit Ownerand may be recorded.
6.3 Architectural Co;Lm:i.ttee. The Board of Directorsshall establish an Architectural Committee consisting of not lessthan three (3) members appointed by the Board of Directors toregulate the external design, appearance, use and maintenance ofthe Condominium and to perform such other functions and duties asare imposed upon it by the Condominium Documents or by the Board ofDirectors.
6.4 Composition of Mgmber_s_-:._. Each Unit Owner shall be aMember of the Association. The membership of the Association atall times shall consist exclusively of all the Unit Owners.
ARTICLE 7
ASSESSMENTS
'7. Preparation of Bud£Le_'l_:_.
(A) At least sixty (60) days before the beginningof each fiscal year of the Association commencing with the fiscalyear in which the first Unit is conveyed to a purchaser, the Boardof Directors shall adopt a budget for the Association containing anestimate of the total amount of funds which the Board of Directorsbelieves will be required during the ensuing fiscal year to pay allCommon Expenses including but not limited to, (i) the amountrequired to pay the cost of maintenance, management, operation,repair and replacement of the Common Elements, the covered parkingspaces allocated to Units as Limited Common Elements and thoseparts of the Units, if any, which the Association has theresponsibility of maintaining, repairing and replacing, (ii) thecost of wages, materials, insurance premiums, services, suppliesand other expenses required for the administration, operation,maintenance and repair of the Condominium (iii) the amount requiredto render to the Unit Owners all services required to be renderedby the Association under the Condominium Documents, and (iv) suchamounts as may be necessary to provide general operating reservesand reserves for contingencies and replacements. The budget shallseparately reflect any Common Expenses to be assessed against less
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than all of the Units pursuant to Section 7.1 (E) and (F) of this
Declaration.
(B) Within thirty (30) days after the adoption of
a budget, the Board of Directors shall send to each Unit Owner a
summary of the budget and a statement of the amount of the Common
Expense Assessment assessed against the Unit of the Unit Owner in
accordance with Section 7.1 of this Declaration. The failure or
delay of the Board of Directors to prepare or adopt a budget for
any fiscal year shall not constitute a waiver or release in any
manner of a Unit Owner's obligation to pay his allocable share of
the Common Expenses as provided in Section 7.1 of this Declaration
and, each Unit Owner shall continue to pay the Common Expense
Assessment against his Unit as established for the previous fiscal
year until notice of the Common Expense Assessment for the new
fiscal year has been established by the Board of Directors.
(C) The Board of Directors is expressly authorized
to adopt and amend budgets for the Association, and no ratification
of any budget by the Unit Owners shall be required.
7.1 Common Expense Assessment.
(A) For each fiscal year of the Association
commencing with the fiscal year in which the first Unit is conveyed
to a Purchaser, the total amount of the estimated Common Expenses
set forth in the budget adopted by the Board of Directors (except
for the Common Expenses which are to be assessed against less than
all of the Units pursuant to Subsections (E) and (F) of this
Section) shall be assessed against each Unit in proportion to the
Unit’s Common Expense Liability as set forth in section 2.2 of this
Declaration. The amount of the Common Expense Assessment assessed
pursuant to this Subsection (A) shall be in the sole discretion of
the Board of Directors except that the Common Expense Assessment
assessed pursuant to this Subsection (A) shall not exceed the
maximum Common Expense Assessment for the fiscal year as computed
pursuant to Subsection (B) of this Section. If the Board of
Directors determines during any fiscal year that its funds budgeted
or available for that fiscal year are, or will, become inadequate
to meet all Common Expenses for any reason, including, without
limitation, nonpayment of Assessments by Members, it may increase
the Common Expense Assessment for that fiscal year and the revised
Common Expense Assessment shall commence on the date designated by
the Board of Directors except that no increase in the Common
Expense Assessment for any fiscal year which would result in the
Common Expense Assessment assessed pursuant to this Subsection (A)
exceeding the maximum Common Expense Assessment for such fiscal
year shall become effective until approved by Members entitled to
cast at least two-thirds (2/3) of the votes entitled to be cast by
Members who are voting in person or by proxy at a meeting duly
called for such purpose.
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_ (B) The maximum Common Expense Assessment for eachfiscal year of the Association shall be as follows:
(1) Until January 1 of the year immediatelyfollowing conveyance of the first Unit to a Purchaser, the maximumCommon Expense Assessment shall be +oN,1;~,. HUNDRED THIRTY 5. 00/100 DOLLARS
($rML00y for each Unit for the first year.
(ii) From and after January 1 of the year im-mediately following the conveyance of the first Unit to aPurchaser, the Board of Directors may, without a vote of themembership, increase the maximum Common Expense Assessment duringeach fiscal year of the Association from an initial base amount of
our HUNDRED THIRTY 3. 00/100 DOLLARS {$130.00) per month per Unit, by anamount proportional to the amount of increase during the pmiorfiscal year in the Consumer Price Index for All Urban Consumers
(All Items), U.S. City Average, published by the United StatesDepartment of Labor, Bureau of Labor Statistics (1967 = 100), or inthe event said index ceases to be published, by any successor indexrecommended as a substitute therefor by the United Statesgovernment, provided that the amount of such increase shall notexceed twenty percent (20%) per year.
(iii) From and after January 1 of the year imemediately following the conveyance of the first Unit to aPurchaser, the maximum Common Expense Assessment may be increasedby an amount greater than the maximum increase allowed pursuant to
(ii) above, only by a vote of Members entitled to cast at leasttwo—thirds (2/3) of the votes entitled to be cast by Members who
are voting in person or by proxy at a meeting duly called for suchpurpose.
(iv) The ‘maximum Common Expense Assessmentshall apply only to the amount of the Common Expense Assessmentassessed pursuant to Subsection (A) of this Section and shall notapply to the amount of Common Expenses assessed pursuant to
Subsection (E) or (F) of this Section.
(C) The Common Expense Assessments shall commenceas to all Units on the first day of the month following theconveyance of the first Unit to a Purchaser. The first CommonExpense Assessment shall be adjusted according to the number of
months remaining in the fiscal year of the Association. The Boardof Directors may require that the Common Expense Assessment or
Special Assessments be paid in installments.
(D) Except as otherwise expressly provided for in
this Declaration, all Common Expenses including, but not limitedto, Common Expenses associated with the maintenance, repair and
replacement of a Limited Common Element, shall be assessed against
all of the Units In accordance.with Subsection (A) of this Section.
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(E) If any Common Expense is caused by the miscon-duct of any Unit Owner, the Association shall assess that CommonExpense exclusively against his Unit.
(F) Assessments to pay a judgment against theAssociation may be made only against the Units in the Condominiumat the time the judgment was entered, in proportion to their CommonExpense Liabilities.
(G) The Common Expense Assessment for any Unit onwhich construction hasrufizbeen substantially completed.shall be anamount equal to twenty-five percent (25%) of the Common ExpenseAssessment for Units which have been substantially completed andconveyed to a Unit Owner other than Declarant. The Common ExpenseAssessment for any Unit which has been constructed but has not beenconveyed by Declarant and is unoccupied shall be equal to fiftypercent (50%) of the Common Expense Assessment for Units substan-tially completed and conveyed to a Unit Owner other than theDeclarant. So long as any Unit owned by the Declarant qualifiesfor the reduced Common Expense Assessment provided for in thisSubsection (G), the Declarant shall be obligated to pay to theAssociation any deficiency in the monies due to the Declaranthaving paid a reduced Common Expense Assessment and necessary forthe Association to be able to timely pay all Common Expenses.
7.2 Special Assessments. In addition to Common ExpenseAssessments, the Association may levy, in any fiscal year of theAssociation, a special assessment applicable to that fiscal yearonly for the.purpose of defraying, in whole or in part, the cost ofany" construction, reconstruction, repair or replacement. of acapital improvement of the Common Elements, including fixtures andpersonal property related thereto, or for any other lawfulAssociation purpose, provided that any Special Assessment shallhave first been approved by Unit Owners representing two—thirds(2/3) of the votes in the Association who are voting in person orby proxy at a meeting duly called for such purpose. Unlessotherwise specified by the Board of Directors, Special Assessmentsshall be due thirty (30) days after they are levied by theAssociation and notice of the Special Assessment is given to theUnit Owners.
7.3 Notice and Quorum for any Action Authorized Undergections 7.1 or 7.2. Written notice of any meeting called for thepurpose of obtaining the consent of the Members for any action forwhich the consent of the Members is required under Sections 7.1 or7.2 shall be sent to all Members not less than thirty (30) days normore than fifty (50) days in advance of the meeting. At the firstsuch.meeting called, the presence of Members or of proxies entitledto cast two-thirds (2/3) of all the votes in the Association 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 meeting
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shall be one—half (1/2) of the required quorum at the precedingmeeting. No such subsequent meeting shall be held more than sixty(60) days following the preceding meeting.
7.4 Individual Service Assessments. In the event theDeclarant or the Association elects to provide, either directly orindirectly, special service, including but not limited to water,power, telephone and cable television service to either the Ownersof all Units or to those Owners who individually subscribe to suchservice, the Association may assess the Owners of each Unit usingsuch services a fee to be determined by the Board of Directors ofthe Association which fee may be a function of the type and volumeof such service.
7.5 Effect of Nonpavment of Assessments; Re_r_nedie_s of the_§sociation.
;_ (A) Any Assessment, or any installment of anAssessment, which is not paid within thirty (30) days after theAssessment first became due shall be deemed delinquent and shallbear interest from the date of delinquency at the rate of twelvepercent (12%) per annum or the prevailing FHA/VA interest rate fornew home loans, whichever is higher. In the event of any failureto pay any Assessment within thirty (30) days after its due date alate charge equal to the greater of Fifteen Dollars ($15.00), orten percent (10%) of the unpaid Assessment may be charged.
(B) All Assessments, monetary penalties and otherfees and charges imposed or levied against any Unit or Unit Ownershall be secured by the Assessment Lien as provided for in theCondominium Act. The recording of this Declaration constitutesrecord notice and perfection of the Assessment Lien and no furtherrecordation of any claim of lien shall be required.
(C) The Association shall have the right, at itsoption, to enforce collection. of any delinquent Assessments,monetary penalties and all other fees and charges owed to theAssociation in any'manner allowed by law including, but not limitedto, (i) bringing an action at law against the Unit Owner personallyobligated to pay the delinquent amounts and such action may bebrought without waiving the Assessment Lien securing any suchdelinquent amounts, or (ii) bringing an action to foreclose itsAssessment Lien against the Unit in the manner provided by law forthe foreclosure of a realty mortgage. The Association shall havethe power to bid in at any foreclosure sale and to purchase,acquire, hold, lease, tmortgage: and convey any and. all Unitspurchased at such sale.
7.6 Subordination of Assessment Lien to Mortgages. TheAssessment Lien shall be subordinate to the lien of any FirstMortgage. Any First Mortgagee or any other party acquiring titleor coming into possession of a Unit through foreclosure of a First
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Mortgage, purchase at a foreclosure sale or trustee sale, orthrough any equivalent proceedings, such as, but rmfiz limited to,the taking of a deed in lieu of foreclosure, shall acquire titlefree and clear of any claims for unpaid Assessments, monetarypenalties and other fees and charges against the Unit which becamepayable prior to such sale or transfer. Any delinquentAssessments, monetary penalties and other fees and charges whichare extinguished pursuant to this Section may be reallocated andassessed to all Units as a Common Expense. Any Assessments,monetary penalties and other fees and charges against the Unitwhich accrue prior to such sale or transfer shall remain theobligation of the defaulting Unit Owner.
7.7 Exemption of Unit Owner. No Unit Owner may exempthimself from liability for payment of Assessments, monetarypenalties and other fees and charges levied pursuant to theCondominium Documents by waiver and nonuse of any of the CommonElements and facilities or by the abandonment of his Unit.
7.8 C_ertificate of Payment. The Association on writtenrequest shall furnish to a lienholder, Unit Owner or persondesignated by a Unit Owner a recordable statement setting forth theamount of unpaid Assessments against his Unit. The statement shallbe furnished within seven (7) business days after receipt of therequest and is binding on the Association, the Board of Directors,and every Unit Owner. The Association may charge a reasonable feein an amount established by the Board of Directors for each suchstatement.
7.9 No Offsets. All Assessments, monetary penalties andother fees and charges shall be payable in accordance with theprovisions of this Declaration, and no offsets against suchAssessments, monetary penalties and other fees and charges shall bepermitted for any reason, including, without limitation, a claimthat the Association is not properly exercising its duties andpowers as provided in the Condominium Documents or the CondominiumAct.
7.10 Surplus Funds. Surplus funds of the Associationremaining after payment of or provisions for Common Expenses andany prepayment of reserves may in the discretion of the Board ofDirectors either be returned to the Unit Owners pro rata inaccordance with each Unit 0wner’s Common Expense Liability or becredited on a pro rata basis to the Unit Owners to reduce each UnitOwner's future Common Expense Assessments.
7.11 Monetary Penalties. In accordance with theprocedures set forth in the Bylaws, the Board of Directors shallhave the right to levy reasonable monetary penalties against a'UnitOwner for violations of the Condominium Documents.
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7.12 Working Capital Fund. in: insure that the
Association shall have adequate funds to meet its expenses or to
purchase necessary equipment or services, each Purchaser of a Unit
from the Declarant shall pay to the Association, immediately upon
becoming the Unit Owner of the Unit, a sum equal to one-sixth
(1/6th) of the Common Expense Assessment on his Unit for the then
current fiscal year. Such amount shall be non—refundable and shall
not be considered as an advance payment of any Assessments levied
by the Association pursuant to this Declaration.
ARTICLE 8
INSURANCE
8.. Scope of Coverage. Commencing not later than the date of
the first conveyance of a Unit to a Purchaser, the Association
shall maintain, to the extent reasonably available, the following
insurance coverage: W
(A) Property insurance on the Common Elements,
Units and Garages, exclusive of improvements and betterments
installed in Units and Garages by Owners, issued under a standard
form "All Risk of Direct Physical Loss Form" in an amount equal to
the maximum insurable replacement value of the Common Elements,
Units and Garages as determined. by the Board of Directors;
provided, however, that the total amount of insurance after
application of any deductibles shall not be less than one hundred
percent (100%) of the current replacement cost of the insured
property, exclusive of land, excavations, foundations and other
items normally excluded from a property insurance policy.
(E) Broad. Form Comprehensive general liability
insurance, for a limit to be determined by the Board, but not less
than $1,000,000.00 for any single occurrence. Such insurance shall
cover all occurrences commonly insured against for death, bodily
injury and.property damage arising out of or in connection with the
use, ownership or maintenance of the Common Elementso Such policy
shall include (i) a cross liability clause to cover liabilities of
the Unit Owners as a group to a Unit Owner, (ii) medical payments
insurance and contingent liability coverage arising out of the use
of hired and nonowner automobiles, and (iii) coverage for any legal
liability that results from lawsuits related to employment
contracts in which the Association is a party.
(C) Workmen’s compensation insurance to the extent
necessary to meet the requirements of the laws of Arizona.
(D) Directors’ and officers’ liability insurance
covering all the directors and officers of the Association in such _
limits as the Board of Directors may determine from time to time. j
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(E) Such other insurance as the Association shalldetermine from time to time to be appropriate to protect theAssociation or the Unit Owners.
(F) The insurance policies purchased by theAssociation shall, to the extent reasonably available, contain thefollowing provisions:
(i) Each Unit Owner shall be an insured underthe policy with respect to liability arising out of his ownershipof an undivided interest in the Common Elements or his membershipin the Association.
(ii) There shall be no subrogation with respectto the Association, its agents, servants, and employees againstUnit Owners and members of their household.
(i_ii) No act or omission by any Unit Owner,unless acting within the scope of his authority on behalf of theAssociation, shall void the policy or be a condition to recovery onthe policy.
(iv) The coverage afforded.by such policy shallbe primary and shall not be brought into contribution or prorationwith any insurance which may be purchased by Unit Owners(designated by name if required by the insurer).
(v) A “severability of interest" endorsementwhich shall preclude the insurer from denying the claim of a UnitOwner because of the negligent acts of the Association or other
_ Unit Owners. -
- (vi) The Association shall be the insured foruse and benefit of the individual Unit Owners (designated by nameif required by the insurer).
(vii) For policies of hazard insurance, astandard mortgagee clause providing that the insurance carriershall notify the Association and each First Mortgagee named in thepolicy at least ten (10) days in advance of the effective date ofany substantial change in coverage or cancellation of the policy.
(viii) Any Insurance Trust Agreement will berecognized by the insurer.
(G) If there is a steam boiler used in connectionwith the Condominium, boiler explosion insurance evidenced by thestandard form of boiler machinery insurance policy and providingcoverage in the minimum amount of $50,000.00 per accident perlocation.
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(H) If? the Condominium is located in an areaidentified by the Secretary of Housing & Urban Development as anarea having special flood hazards, a "blanket policy" of floodinsurance on the Condominium in the lesser of one hundred percent(100%) of the current replacement cost of the buildings and anyother property covered on the required form of policy or themaximum limit of coverage available under the National InsuranceAct of 1968, as amended.
(I) "Agreed Amount" and "Inflation Guard"endorsements.
8.1 Fidelity Bonds.
(A) The Association shall maintain blanket fidelitybonds for all officers, directors, trustees, and employees of theAssociation and all other persons handling orzresponsible for fundsof or administered by the Association including, but} withoutlimitation, officers, directors and employees of any managementagent of the Association, whether or not they receive compensationfor their services. The total amount of fidelity bonds maintainedby the Association shall be based upon the best business judgmentof the Board, and shall not be less than the greater of (i) theamount equal to one hundred fifty percent (150%) of the estimatedannual operating expenses of the Condominium, (ii) the estimatedmaximum of funds, including reserve funds, in the custody of theAssociation or the management agent, as the case may be, at anygiven time during the term of each bond, or (iii) the sum equal tothreezmonths aggregate Common Expense Assessments on all Units plusreserve funds. Fidelity bonds obtained.by the Association must alsomeet the following requirements:
(i) The fidelity bonds shall name theAssociation as an obligee;
(ii) The bonds shall contain waivers bythe issuers of the bonds of all defenses based upon the exclusionof persons serving without compensation from the definition of"employees" of similar terms of expressions;
(iii) The bonds shall provide that theymay not be cancelled or substantially modified (including cancel-lation for nonpayment of premium) without at least ten (10) daysprior written notice to the Association and each First Mortgagee.
(B) The Association shall require any managementagent of the Association to maintain its own fidelity bond in anamount equal to or greater than the amount of the fidelity bond tobe maintained by the Association pursuant to Subsection (A) of thisSection. The fidelity bond maintained by the management agentshall cover funds maintained in bank accounts of the managementagent and need not name the Association as an obligee.
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8.2 Payment of Premiums. Premiums for all insurance
obtained by the Association pursuant to this Article shall beCommon Expenses and shall be paid for by the Association.
8.3 Insurance Obtained by Unit Owners. The issuance ofinsurance policies to the Association pursuant tn: this Articleshall not prevent a Unit Owner from obtaining insurance for his own
benefit and at his own expense covering his Unit and any Garage(s),his personal property and providing personal liability coverage.
8.4 Payment of Insurance Proceeds. Any loss covered by
property insurance obtained by the Association in accordance with
this Article shall be adjusted with the Association and theinsurance proceeds shall be payable to the Association and not toany mortgagee or beneficiary under a deed of trust for Unit Ownersand lienholders as their interests may appear, and the proceedsshall be disbursed and applied as provided for in Section 33-1253of the Condominium Act.,
8.5 Certificate of Insurance. An insurer that has
issued an insurance policy pursuant to this Section 8 of theDeclaration shall issue certificates or memoranda of insurance tothe Association and, on written request, to any Unit Owner,mortgagee, or beneficiary under a deed of trust. The insurerissuing the policy shall not cancel or refuse to renew it untilthirty (30) days after notice of the proposed cancellation ornonrenewal has been.mailed.to the Association, each Unit Owner, and
each mortgagee or beneficiary under a deed of trust to whom a
certificate or memorandum of insurance has been issued at their
respective last known addresses.
ARTICLE 9
RIGHTS OF FIRST MORTGAGEES
9. Notification to First Mortgaqegg. Upon receipt by theAssociation of a written request from a First Mortgagee or insureror governmental guarantor of a First Mortgage informing theAssociation of its correct name and mailing address and number or
address of the Unit to which the request relates, the Associationshall provide such Eligible Mortgage Holder or Eligible Insurer orGuarantor with timely written notice of the following:
(A) Any condemnation loss or any casualty loss
which affects a material portion of the Condominium or any Unit onwhich there is a First Mortgage held, insured or guaranteed by suchEligible Mortgage Holder or Eligible Insurer or Guarantor;
(B) Any delinquency in the payment of Assessmentsor charges owed by a Unit Owner subject to a First Mortgage held,
insured or guaranteed by such Eligible Mortgage Holder or EligibleInsurer or Guarantor or any other default in performance by the
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Unit Owner of any obligation under the Condominium Documents, whichdelinquency or default remains uncured for the period of sixty (60)days;
(C) Any lapse, cancellation cnr materialmodification.of any insurance policy or fidelity bond maintained bythe Association;
(D) Any proposed action which requires the consentof'a specified percentage of Eligible Mortgage Holders as set forthin Section 9.1 of this Declaration. .
9.1 Approval Required for Amendment to Declaration,Articles or Bvlawg.
(A) The approval of Eligible Mortgage Holdersholding First Mortgages on Units the Unit Owners of which have atleast fifty-one percent (51%) of the votes in the Associationallocated to Unit Owners of all Units subject to First Mortgagesheld.by Eligible.Mortgage Holders shall be required to add.or amendany material provisions of the Declaration, Articles or Bylawswhich establish, provide for, govern or regulate any of thefollowing:
(1) Voting rights;
(ii) Assessments, assessment liens orsubordination of assessment liens;
(iii) Reserves for maintenance, repair andreplacement of Common Elements;
(iv) Insurance or fidelity bonds;
(v) Responsibility for maintenance andrepairs;
(vi) Expansion or contraction of theCondominium, or the addition or annexation of property to theCondominium;
(vii) Boundaries of any Unit or Garage;
(viii) Reallocation of interests in the CommonElements or Limited Common Elements or rights to their use;
(ix) Convertability of Units or Garages intoCommon Elements or of Common Elements into Units or Garages;
(x) Leasing of Units and any Garage(s);
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(xi) Imposition of any restrictions on a Unit
Owner's right to sell or transfer his Unit and any Garage(s);
(xii) A decision by the Association to
establish self management when professional management had been
required previously by an Eligible Mortgage Holder;
(xiii) Restoration or repair of the Condo-
minium (after a hazard damage or partial condemnation) in a manner
other than that specified in the Condominium Documents;
(xiv) .Any action.to terminate the legal status
of the Condominium after substantial destruction or condemnation
occurs;
(xv) Any provisions which expressly benefit
First Mortgagees, Eligible:Mortgage.Holders or Eligible Insurers or
Guarantors. ,.,*~
(B) Any action.to terminate the legal status of the
Condominium for reasons other than substantial destruction or
condemnation of the Condominium must be approved by Eligible
Mortgage Holders holding mortgages on Units, the Unit Owners of
which.have at least seventy—five percent (75%) of the votes in the
Association allocated to Unit Owners of all Units subject to First
Mortgages held by Eligible Mortgage Holders.
(C) Any First Mortgagee who receives a written
request to approve additions or amendments to the Declaration,
Articles or Bylaws, which additions or amendments are not material,
who does not deliver or mail to the requesting party a negative
response within thirty (30) days shall be deemed to have approved
such request. Any addition or amendment to the Declaration,
Articles or Bylaws shall not be considered material if it is for
the purpose of correcting technical errors or for clarification
only.
(D) The approvals required by this Section shall
not apply to amendments that may be executed by the Declarant in
the exercise of its Development Rights.
9.2 Prohibition Against Right of First Refusal. The
right of a Unit Owner to sell, transfer or otherwise convey his
Unit and any Garage(s) shall not be subject to any right of first
refusal or option to purchase or similar restriction.
9.3 Right of Inspection of Records. Any Unit Owner,
First Mortgagee or Eligible Insurer or Guarantor will, upon written
request, be entitled to (i) inspect the current copies of the
Condominium Documents and the books, records and financial
statements of the Association during normal business hours, (ii)
receive within ninety (90) days following the end of any fiscal
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year of the Association, an audited financial statement of the
Association for the immediately preceding fiscal year of theAssociation, free of charge to the requesting party, and (iii)
receive written notice of all meetings of the Members of theAssociation and be permitted to designate a representative to
attend all such meetings.
9.4 Prior Written Approval of First Mortgagees. Exceptas provided by statute in case of condemnation or substantial lossto the Units or the Common Elements, unless at least two-thirds
(2/3) of all First Mortgagees (based upon one vote for each FirstMortgage owned) or Unit Owners (other than the Declarant or othersponsor, developer or builder of the Condominium) of the Units havegiven their prior written approval, the Association shall not beentitled to:
(A) By act or omission, seek to abandon or
terminate this Declaration or the Condominium;
(B) Change the pro rata interest or obligations orany individual Unit for the purpose of: (i) levying Assessments or
charges or allocating distributions of hazard insurance proceeds orcondemnation awards, or (ii) determining the pro rata share of
ownership of each Unit in the Common Elements;
(C) Partition or subdivide any Unit;
(D) By act or omission, seek to abandon, partition,subdivide, encumber, sell or transfer the Common Elements. The
granting of easements for public utilities (H? for other publicpurposes consistent with the intended use of the Common Elementsshall not be deemed a transfer within the meaning of thisSubsection;
(E) Use hazard insurance proceeds for losses to anyUnits or the Common Elements for any purpose other than the repair,replacement or reconstruction of such Units, Garages or the Common
Elements.
Nothing contained in this Section or any other provisionof this Declaration shall be deemed to grant the Association theright to partition any Unit without the consent of the Ownersthereof. Any partition of a Unit shall be subject to suchlimitations and prohibitions as may be set forth elsewhere in thisDeclaration or as provided under Arizona law.
9.5 Liens Prior to First Mortgage. All taxes,assessments, and charges which may become liens prior to the First
Mortgage under local law shall relate only to the individual Unitor Garage and not to the Condominium as a whole.
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9.6 Condemnation or Insurance Proceeds. No Unit Owner,or any other party, shall have priority over any rights of anyFirst.Mortgagee of the Unit pursuant to its mortgage in the case ofa distribution to such Unit Owner of insurance proceeds orcondemnation awards for losses to or a taking of Units, Garagesand/or Common Elements.
9.7 Limitation on Partition and Subdivision. No Unitshall be partitioned or subdivided without the prior writtenapproval of the holder of any First Mortgage on such Unit.
9.8 Conflicting Provisions. In the event of anyconflict or inconsistency between the provisions of this Articleand any other provision of the Condominium Documents, theprovisions of this Article shall prevail; provided, however, thatiJ1the event of any conflict or inconsistency between the differentSections of this Article or_between the provisions of this Articleand any other provision of the Condominium Documents with respectto the number or percentage of Unit Owners, First Mortgagees,Eligible Mortgage Holders or Eligible Insurers or Guarantors thatmust consent to (i) an amendment of the Declaration, Articles orBylaws, (ii) a termination of the Condominium, or (iii) certainactions of the Association as specified in Sections 9.1 and 9.4 ofthis Declaration, the provision requiring the consent of thegreatest number or percentage of Unit Owners, First Mortgagees,Eligible Mortgage Holders or Eligible Insurers or Guarantors shallprevail; provided, however, that the Declarant, without the consentof any Unit Owner or First.Mortgagee being required, shall have theright to amend this Declaration, the Articles or the Bylaws inorder to comply with (i) the Condominium Act, (ii) the requirementsor guidelines in effect from time to time of any governmental orquasi-governmental entity or federal corporation guaranteeing orinsuring mortgage loans or governing transactions involvingmortgage instruments including, without limitation, the FederalNational Mortgage Association, the Federal Home Loan MortgageCorporation, the Federal. Housing .Administration, the ‘VeteransAdministration or (iii) the rules or requirements of any federal,state or local governmental entity or agency whose approval of theCondominium, the Plat or the Condominium Documents is required bylaw or requested by the Declarant.
ARTICLE 10
GENERAL PROVISIONS
10. Enforcement. The Association, or any Unit Owner, shallhave the right to enforce, by any proceeding at law or in equity,all restrictions, conditions, covenants, reservations, liens andcharges now or hereafter imposed by the provisions of theCondominium Documents. Failure by the Association or by any UnitOwner to enforce any covenant or restriction contained in the
33
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Condominium Documents shall in no event be deemed a waiver of theright to do so thereafter.
10.1 Severability. Invalidation of any one of thesecovenants or restrictions by judgment or court order shall in noway affect any other provisions which shall remain in full forceand effect.
10.2 Duration. The covenants and restrictions of thisDeclaration shall run with and bind the Condominium, for a term oftwenty (20) years from the date this Declaration is recorded, afterwhich time they shall be automatically extended for successiveperiods of ten (10) years.
10.3 Termination.of Condominium. The Condominium.may beterminated in the manner provided for in the Condominium Act.
10.4 Amendment.
(A) Except in cases of amendments that may beexecuted by a Declarant in the exercise of its Development Rightsunder Section 33-1220 of the Condominium Act, by the Associationunder Section 33-1206 or 33-12l6(D) of the Condominium Act, or bycertain Unit Owners under Section 33—1218(B), Section 33-1222,Section 33-1223 or Section 33-1228(B) of the Condominium Act, andexcept to the extent permitted or required by other provisions ofthe Condominium Act, the Declaration, including the Plat, may beamended only by a vote of the Unit Owners to which at leastseventy-five percent (75%) of the votes in the Association areallocated.
(B) Except to the extent expressly permitted orrequired by the Condominium Act, an amendment to the Declarationshall not create or increase Special Declarant Rights, increase thenumber of Units or Garages or change the boundaries of any Unit orGarage, the allocated interest of a Unit, or the use as to whichany Unit or Garage is restricted, in the absence of unanimousconsent of the Unit Owners.
(C) An amendment to the Declaration shall notterminate or decrease any unexpired Development Right, SpecialDeclarant Right or Period of Declarant Control unless the D-eclarantapproves the amendment in writing.
(D) During the Period of Declarant Control, theDeclarant shall have the right to amend the Declaration, includingthe Plat, to comply with.(i) the Condominium Act, (ii) the rules orguidelines in effect from time to time of any governmental orquasi-governmental entity or federal corporation guaranteeing orinsuring mortgage loans or governing transactions involvingmortgage instruments, including without limitation, the FederalNational Mortgage Association or the Federal Home Loan Mortgage
34
IUI-11:3 l45|
Corporation, or (iii) the rules or requirements of any federal,state or local governmental entity or agency whose approval of theCondominium, the Plat or the Condominium Documents is required bylaw or requested by the Declarant.
(E) During the Period of Declarant Control, theDeclarant shall have the right to amend the Declaration or the Platto comply with applicable law or to correct any error orinconsistency in the Declaration or the Plat if the amendment doesnot adversely affect the rights of any Unit Owner.
(F) Any amendment adopted by the Unit Ownerspursuant to Subsection (A) above shall be signed by the Presidentor Vice President of the Association and shall be recorded with theCounty’ Recorder of each County’ in "which any portion of ‘theCondominium is located. Any such amendment shall certify that theamendment has been approved as required by this Section. Anyamendment made by the Declarant pursuant to Subsection (D) or (E)of this Section shall be executed by the Declarant and shall berecorded with the County Recorder of each County in which anyportion of the Condominium is located.
10.5 Remedies Cumulative. Each remedy provided herein iscumulative and not exclusive.
10.6 Notices. All notices, demands, statements;or othercommunications required to be given or served under thisDeclaration shall be in writing and shall be deemed to have beenduly given and served if delivered personally or sent by UnitedStates mail, postage prepaid, return receipt requested, addressedas follows: (i) if to a Unit Owner, at the address which the UnitOwner shall designate in writing and file with the Association or,if no such address is designated, at the address of the Unit ofsuch Unit Owner, or (ii) if to the Association, the Declarant, orthe Architectural Committee, to 16927 East Saguaro Boulevard,Fountain Hills, Arizona 85268; or such other address as shall bedesignated.by notice.in writing to the'Unit«0wners pursuant to thisSection. A Unit Owner may change his address on file with theAssociation for receipt of notices by delivering a written noticeof change of address to the Association pursuant to this Section.A notice given by mail, whether regular, certified, or registered,shall be deemed to have been received by the person to whom thenotice was addressed on the earlier of the date the notice isactually received or three days after the notice is mailed. If aUnit is owned by more than one person, notice to one of the UnitOwners shall constitute noticeato all Unit Owners of the same Unit.Each Unit Owner shall file his correct mailing address with theAssociation, and shall promptly notify the Association in writingof any subsequent change of address.
10.7 Binding Effect. By acceptance of a deed or byacquiring any ownership interest in any portion.of the Condominium,
35
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each person or entity, for himself, his heirs, personal
representatives, successors, transferees and assigns, binds
himself, his. heirs, personal representatives, successors,
transferees and assigns, to all of the provisions, restrictions,
covenants, conditions, rules, and regulations now or hereafter
imposed by the Condominium Documents and any amendments thereof.
In addition, each such person by so doing thereby acknowledges that
the Condominium Documents set forth a general scheme for the
improvement and development of the real property covered thereby
and hereby evidences his interest that all the restrictions,
conditions, covenants, rules and :regulations. contained. in ‘the
Condominium Documents shall run with the land.and be binding on all
subsequent and future Owners, grantees, purchasers, assignees, and
transferees thereof. Furthermore, each such person fully under-
stands and acknowledges that the Condominium Documents shall be
mutually beneficial, prohibitive and enforceable by the various
subsequent and future Unit Owners. Declarant, its successors,
assigns and grantees, covenants and agrees that the Units and the
membership in the Association and the other rights created by the
Condominium Documents shall not be separated or separately
conveyed, and each shall be deemed to be conveyed or encumbered
with its respective Unit even though the description in the
instrument of conveyance or encumbrance may refer only to the Unit.
10.8 Gender. The singular, wherever used in this
Declaration, shall be construed to mean the plural when applicable,
and the necessary grammatical changes required to make the
provisions of this Declaration apply either to corporations or
individuals, or men or women, shall in all cases be assumed as
though in each case fully expressed.
10.9 Topic Headings. The marginal or topical headings
of the sections contained in this Declaration are for convenience
only and do not define, limit or construe the contents of the
sections or of this Declaration.
10.10 Survival of Liability; The termination of
membership in the Association shall not relieve or release any such
former owner or Member from any liability or obligation incurred
under, or in any way connected with, the Association during the
period of such ownership or membership, or impair any rights or
remedies which the Association may have against such former Owner
or Member arising out of, or in any way connected with, such
ownership or membership and the covenants and obligations incident
thereto.
10.11 Construction. In the event of any discrepancies,
inconsistencies or conflicts between the provisions of this
Declaration and the Articles, Bylaws, Association Rules or
Architectural Committee Rules, the provisions of this Declaration
shall prevail.
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l0hl+3 h53
10.12 Joint and Several Liability. In the case of jointownership of a Unit, the liabilities and obligations of each of thejoint Unit Owners set forth in, or imposed by, the CmmdominiumDocuments shall be joint and several.
10.13 Guests and Tenants, Each Unit Owner shall, to the
extent required by Arizona law, be responsible for compliance byhis agents, tenants, guests, invitees, licensees and theirrespective servants, agents, and employees with the provisions ofthe Condominium Documents. A Unit Owners’ failure to insurecompliance by such persons shall be grounds for the same actionavailable to the Association or any other Unit Owner by reason ofsuch Unit Owner’s own noncompliance.
10.14 Attorneys’ Fees. In the event the Declarant, theAssociation or any Unit Owner employs an attorney or attorneys toenforce a lien or to collect any amounts due from a Unit Owner orto enforce compliance with or recover damages for any violation ornoncompliance with the Condominium Documents, the prevailing partyin any such action shall be entitled to recover from the otherparty their reasonable attorneys’ fees incurred in the action.
10.15 Number of Days. In computing the number of daysfor purposes of any provision of the Condominium Documents, alldays shall be counted including Saturdays, Sundays and holidays;provided, however, that if the final day of any time period fallson a Saturday, Sunday or holiday, then the final day shall bedeemed to be the next day which is not a Saturday, Sunday orholiday.
10.16 Declarant’s Right to Use Similar Name. TheAssociation hereby irrevocably consents to the use by any othernonprofit corporation which may be formed or incorporated byDeclarant 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 name ofthe 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 nonprofit corporationformed or incorporated by the Declarant to use a corporate namewhich is the same or deceptively similar to the name of theAssociation.
10.17 Notice of Violation. The Association shall havethe right to record a written notice of a violation by any UnitOwner of any restriction or provision of the Condominium Documents.The notice shall be executed and acknowledged by an officer of theAssociation and shall contain substantially the followinginformation: (i) the name of the Unit Owner; (ii) the legaldescription of the Unit or Garage against which.the notice is being
37
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recorded; (iii) a brief description of the nature of the violation; (iv) a statement that the notice isbeing recorded by the Association pursuant to this Declaration; and (v) a statement of the specificsteps which must be taken by the Unit Owner to cure the violation. Recordation of a Notice ofViolation shall serve as a notice to the Unit Owner and to any subsequent purchaser of the Unit orGarage that there is a violation of the provisions of the Condominium Documents. If, after therecordation of such notice, it is dtermined by the Association that the violation referred to in thenotice does not exist or that the actual violation referred to in the notice has been cured, theAssociation shall record a notice of compliance which shall state the legal description of that Unitagainst which the Notice of Violation, and shall state that the Violation referred to in the Notice ofViolation "has been cured, or if such be the case, that it did not exist.
WITNESS WHEREOF, the Declarant has executed this Declaration on this,4:/Vivtiay of, 1996. '
FIRST AMERICAN TIT I SURANCE COMPANY,‘A Califomia Corpora ' 11, As
'rustee Under Trust No. 4728
BY:
ITS:/ fl£”~§)
STATE OF ARIZONA )) SS
COUNTY OF MARICOPA )
The foregoing in trume t Eras acknowledged before e this / ‘day of[W ,1996_.,by gfllf/"xlof First American Title Insurance Company, A California Corporation, as Trustee under Trust No.4728, on behalf of said Company.
N'5t'a1“i,7fi tI§1icI
My Commission Expires:
VISTOI?
38
|0lils3 #55
July 19, 1998WLB #1 95033A-002-1 000wztlegalsvl 95039\23&24&25.26Page 1.
1%OVERALL DESCRIPTION OF VISTOSO RESORT CASITAS
That portion of Sections 23, 24, 25 and 28. Township 11 South, Range 13 East, Gila and SaltRiver Meridian. Pima County, Arizona, described as follows:
COMMENCING at the Southwest corner of said Section 24;THENCE N 00 °00'18" W, along the West line of the Southwest One-Quarter (SW 1(4) of
said Section 24, a distance of 121.49 feet to the POENT OF BEGINNING:THENCE 8 88°00'00" E, 72.05 feet to a point of curvature of a tangent curve concave to
the North;
THENCE Easterly along the arc of said curve. to the left, having a radius of 500.00 feetand a central angle of 23°51'28" for an arc distance of 208.20 feet to a point of tangency;THENCE N 68°08'32" E, 73.78 feet to a point of curvature of a tangent curve concave tothe Southwest;
THENCE Easterly and Southeasterly along the arc of said curve, to the right, having aradius of 25.00 feet and a central angle of 93°08'28" for an arc distance of 40.63 feet to a pointof tangency;
THENCE 8 18°45'00" E, 313.17 feet to a point of curvature‘ of a tangent curve concave tothe West;
THENCE Southerly along the arc of said curve, to the right, having a radius of 440.00 feetand a central angle of 48°30'00" for an arc distance of 372.45 feet to a point of tangency;
THENCE 8 29°45'00" W, 201.40 feet to a point of curvature of a tangent curve concaveto the East;
.THENCE southerly along the arc of said curve. to the left, having a radius of 520.00 feet
and a central angle of 24°38'10" for an arc distance of 223.29 feet to a point of reverse curvatureof a tangent curve concave to the Northwest:
THENCE southwesterly along the arc of said curve, to the right, having a radius of 25.00feet and a central angle of 84°51 '10" for an arc distance of 37.02 feet to a point of tangency:
THENCE 3 90°00'00" W, 92.83 feet to a point of curvature of a tangent curve concave tothe Northeast; '
l0ltlt3 I456
July 19, 1996WLB #195033A-002-1000w:\legals\195033\23&24&25.26Page 2.
“Lesrouplhfi,
_ THENCE Nerthwesteriy along the arc of said curve, to the right, having a radius of 440.00feet and a central angle 0f53°34'51"f-0r an arc distance of 41 1.47 feet to a non-tangent line;THENCE N 70°00'00" E, 122.53 feet;0THENCE N 13°00'00" w, 55.54 feet;
THENCE N 11°00'00" E, 24.59 feet:THENCE N 30°00'00" w, 34.20 feet;THENCE N 13°00'00" w, 535.29 feet;THENCE N 29°00'00" E. 200.00 feet;
THENCE N 09°00‘00" E. 3.91 feet to a point on the arc of a non-tangent curve concave tothe North, a radial line 0f said Curve through said point having a bearing of S 09 "‘f34'42" W'
THENCE Easterly-along the arc of said curve, to the left, having a radius of 527.45 feetand a Central angle of 07°34'42" for an arc distance of 69.76 feet to a point of tangency;
THENCE 8 88°00'00" E. 58.07 feet to the POINT OF BEGINNING;
Containing 13.265 acres, more or less.
Prepared by:
.THE WLB GROUP, INC.
Douglas E. Schneider, RLS
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