Estrella Community CCR’s
OFFICIAL RECORDS OF
MARICOPA COUNTY RECORDER HELEN PURCELL
95-0221410 04/20/95 04:38
CAIM 34 W 43
AMENDED AND RESTATED DECLARATION OF
COVENANTS, CONDITIONS RESTRICTIONS AND EASEMENTS
• Any provision herein which restricts the sale, rental, or use of the described real property because of familiar status is invalid and unenforceable under federal law’
TABLE OF CONTENTS
ARTICLE SECTION Page
1. DEFINITIONS 1
1.1. Additional Covenants 2
1.2. Adjustment Date 2
1.3. Agencies 2
1.4. Annual Assessments 2
1.5. Area of Common Responsibility 2
1.6. Articles 2
1.7. Assessments 2
1.8. Assessment Lien 2
1.9. Assessment Period 3
1.10. Association 3
1.11. Association Rules 3
1.12. Base Index
1.13. Board 3
1.14. By-Laws 3
1.15. City 3
1.16. Common Areas 3
1.17. Comparison Index 3
1.18. Community-Wide Standard 3
1.19. Condominium Parcel 3
1.20. Condominium Unit 3
1.21. Covenant to Share Costs 4
1.22. Covered Property 4
1.23. Declarant 4
1.24. Declaration 4
1.25. Delinquent Amount 4
1.26. Developer Owner 4
1.27. Dwelling Unit 4
1.28. Event of Foreclosure 4
1.29. Exempt Property 4
1.30. Funds 5
1.31. Government Property 5
1.32. Guidelines 5
1.33. Index 5
1.34. Joint Committee 5
1.35. Joint Committee By-Laws 5
1.36. Limited Common Areas 5
1.37. Lot 5
1.38. Maintenance Assessment 5
1.39. Master Development Plan 6
1.40. Maximum Annual Assessment 6
1.41. Member 6
1.42. Membership 6
1.43. Neighborhood 6
ARTICLE SECTION Page
1.44. Neighborhood Assessments 6
1.45. Neighborhood Association 6
1.46. Neighborhood Expenses 6
1.47. Non-Developer Owner 7
1.48. Occupant 7
1.49. Owner 7
1.50. Parcel 7
1.51. Person 7
1.52. Record, Recording and Recorded 7
1.53. Resident 7
1.54. Residential Condominium Development 7
1.55. Review Committee 7
1.56. Single Family 8
1.57. Single Family Parcel 8
1.58. Single Family Residential Development 8
1.59. Special Assessments 8
1.60. Special Use Fees 8
1.61. Tract Declaration 8
1.62. Visible From Neighborhood 8
1.63. Voting Group 8
1.64. Voting Member 8
2. PROPERTY AND PERSONS BOUND BY THIS DECLARATION 8
2.1. General Declaration 8
2.2. Association Bound 9
2.3. Master Association 9
2.4. Restatement and Replacement 10
3. EASEMENTS AND RIGHTS OF ENJOYMENT IN THE COMMON AREAS 10
3.1. Easements and Rights of Enjoyment 10
3.2. Ingress and Egress Over Certain Common Areas 11
3.3. Delegation of Use 12
3.4. Waiver of Use 12
3.5. Temporary Sign Easement 12
3.6. Lake and Park Areas 12
4. ARCHITECTURAL AND LANDSCAPING RESTRICTIONS AND CONTROL 14
4.1. General 14
4.2. Architectural Review 14
4.3. Guidelines and Procedures 15
4.4. No Waiver of Future Approvals 16
4.5. Variance 16
4.6. Limitation of Liability 16
4.7. Enforcement 17
4.8. Antennae and Satellite Dishes 17
4.9. Pre-wiring of Residential Structures 17
ARTICLE SECTION END
5. ORGANIZATION OF ASSOCIATION 18
5.1. Formation of Association 18
5.2. Board of Directors and Officers 18
5.3. Association Rules 18
5.4. Personal Liability 19
5.5. Mergers or Consolidations 19
5.6. Neighborhoods 19
6. MEMBERSHIPS AND VOTING 20
6.1. Votes of Owners of Lots and Parcels 20
6.2. Declarant 20
6.3. Voting Classes 21
6.4. Right to Vote 21
6.5. Members’ Rights 21
6.6. Transfer of Membership 22
6.7. Voting Members 22
6.8. Voting Groups 22
6.9. Directors During the Class “B” Membership 23
6.10. Declarant’s Right to Disapprove Actions 24
7. ASSESSMENTS AND CREATION OF LIEN 25
7.1. Creation of Assessment Lien; Personal Obligation
of Lot or Parcel Owner 25
7.2. Annual Assessments 26
7.3. Rate of Assessment 26
7.4. Maximum Annual Assessment 28
7.5. Special Assessments 29
7.6. Notice and Quorum for Any Action Authorized Under
Sections 7.4 and 7.5 29
7.7. Maintenance Assessments 29
7.8. Annual Assessment Period 29
7.9. Billing and Collection Procedures 29
7.10. Collection Costs and Interest on Delinquent Amounts 30
7.11. Statement of Payment 30
7.12. Exempt Property 31
7.13. Assessment of Certain Maintenance Costs 31
7.14. Improper Maintenance and Use of Lots and Parcels 31
7.15. Neighborhood Assessments 31
8. ENFORCEMENT AND THE ASSESSMENT LIEN 32
8.1. Association Remedies to Enforce Assessments 32
8.2. Subordination of Assessment Lien 33
8.3. Release of Recorded Assessment Lien 33
ARTICLE SECTION Page
9. USE OF ASSOCIATION FUNDS 34
9.1. Use of Association Funds 34
9.2. Borrowing Power 34
9.3. Association’s Rights in Spending Funds from Year to Year 34
10. RIGHTS AND POWERS OF ASSOCIATION 34
10.1. Rights, Powers and Duties of the Association 34
10.2. Rules and Regulations 34
10.3. Association’s Rights of Enforcement 34
10.4. Contracts with Others 36
10.5. Procedure for Change of Use of Common Areas 36
10.6. Procedure for Transfers of Common Areas 36
10.7. Common Areas Use Fees 37
10.8. Personal Property and Real Property for Common Use 37
10.9. Maintenance of the Common Areas 37
10.10. Owners’ Maintenance Responsibility 39
10.11. Neighborhood’s Maintenance Responsibility 39
10.12. Standard of Performance 39
10.13. Security 40
10.14. Powers of the Association Relating to Neighborhoods 40
10.15. Adjacent Properties; Covenant to Share Costs 40
10.16. Membership in the Joint Committee 41
11. TERM; AMENDMENTS; TERMINATION 41
11.1. Term; Method of Termination 41
11.2. Amendments 41
11.3. Right of Amendment if Requested by Governmental Agency
or Federally-Chartered Lending Institution 42
12. EASEMENTS 43
12.1. Easements of Encroachment 43
12.2. Easements for Utilities, Etc 43
12.3. Easements to Serve Other Property 44
12.4. Right of Entry 44
13. EMINENT DOMAIN AND INSURANCE 44
13.1. Eminent Domain 44
13.2. Association Insurance 45
13.3. Owners’ Insurance 48
14. MISCELLANEOUS 49
14.1. Enforcement Rights 49
14.2. Interpretation of the Covenants 49
14.3. Severability 49
14.4. Rule Against Perpetuities 49
14.5. Change of Circumstances 49
( i v )
ARTICLE SECTION Page
14.6. Declarant’s Disclaimer of Representations 49
14.7. Successors and Assigns 50
14.8. Gender and Number 50
14.9. Captions 50
14.10. Notices 50
14.11. FHA/VA Approval 50
14.12. Water Rights 50
14.13. Party Walls 51
14.14. Litigation 52
15. DECLARANT’S RIGHTS 52
16. DISPUTE RESOLUTION AND LIMITATION ON LITIGATION 53
16.1. Agreement to Avoid Litigation 53
16.2. Claims 53
16.3. Mandatory Procedures 54
16.4. Allocation of Costs of Resolving Claims 55
16.5. Enforcement of Resolution 56
— TABLE OF EXHIBITS
Exhibit Subject Matter
Area Covered by Master Development Plan
It Btt Covered Property
Cable Wiring Standards
Rules of Arbitration
Commercial Property Withdrawn from the Covered Property
AMENDED AND RESTATED DECLARATION OF
COVENANTS. CONDITIONS RESTRICTIONS AND EASEMENTS
THIS AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS is executed to be effective as of the day of PAL, ;Lep/ , 1921- by SunChase Estrella Limited Partnership, a Delaware limited Partnership (the “Declarant”).
A. Declarant is the owner of the original Covered Property and the master developer of other additional real property in Maricopa County, Arizona, which may be collectively owned and developed under the name “Estrella.”
B. Declarant desires to develop Estrella as a planned area development and impose upon the Covered Property mutually beneficial restrictions under a general plan of improvement for the benefit of the owners of each portion of the Covered Property and establish a flexible and reasonable procedure for its overall development, administration, maintenance and preservation.
C. As part of the development of Estrella and without obligation so to do, Declarant has or shall dedicate portions of Estrella to the public and to Record various additional covenants, conditions and restrictions apart from this Declaration in the form of separate Tract Declarations which shall cover certain portions of Estrella to be specified in such Tract Declarations.
D. Declarant desires and intends that the Covered Property shall be held, sold and conveyed subject to the easements, restrictions, covenants and conditions in this Declaration, which: (i) are for the purpose of protecting the value, desirability and attractiveness of the Covered Property;
(ii) shall run with all of the real property comprising the Covered Property;
(iii) shall be binding an all parties having any right, title or interest in the real Property, or any part thereof; and (iv) shall inure to the benefit of the aforementioned portion and their successors and assigns.
E. An Arizona nonprofit corporation known as the “Estrella Community Association,” shall be the “community association” for the purposes of, among other things: (i) holding title in fee or otherwise to the Common Areas; (ii) the efficient preservation of the values and amenities of the Covered Property; (iii) establishing, collecting, disbursing and enforcing the Assessments created herein; and (iv) enter into agreements, covenants, and contracts with adjacent owners of real property to address issues of a common concern for the overall development, administration, governance and maintenance of the property included in the Master Development Plan.
F. Declarant desires to restate and replace that certain Declaration of Covenants, Conditions, Restrictions and Easements for Estrella recorded at Instrument No. 88 047365 in the Records of Maricopa County, Arizona.
NOW, THEREFORE, Declarant hereby, declares, covenants and agrees as follows:
The terms in this Declaration and the exhibits to this Declaration shall generally be given their natural, commonly accepted definitions except as otherwise specified. Capitalized terms shall be defined as set forth below.
1.1. “Additional Covenants” shall mean the covenants, restrictions, reservations, charges, servitudes, assessments, conditions, liens or easements in addition to those provided for in this Declaration, which are provided for in any Tract Declaration, contract, deed, declaration or other instrument Recorded by Declarant.
1.2. “Adjustment Date” shall mean January 1 of each year during the period in which this Declaration remains in effect.
1.3. “Agencies” shall mean the Federal Housing Administration (FHA), the Veterans Administration (VA), the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation and any other governmental agencies or financial institutions.
1.4. “Annual Assessments” shall mean the annual assessments levied by the Board pursuant to Section 7.2 of this Declaration.
1.5. “Area of Common Responsibility” shall mean the Common Areas, together with those areas, if any, which by the terms of this Declaration, any supplementary declaration, Tract Declaration, Covenant to Share Costs, or other applicable covenants, contract, or agreement with any Neighborhood, other community association, or Maricopa County, Arizona, become the responsibility of the Association.
1.6. “Articles” shall mean the Articles of Incorporation of the Association, as amended or restated from time to time, on file with the Arizona Corporation Commission.
1.7. “Assessments” shall mean all Annual Assessments, Special Assessments, Maintenance Assessments and Neighborhood Assessments.
1.8. “Assessment Lien” shall mean the charge and continuing servitude and lien against a Lot or Parcel for payment of Assessments and Special Use Fees as described in Section 7.1 of this Declaration.
1.9. “Assessment Period” shall mean each period for which Assessments are to be levied against a Lot or Parcel pursuant to this Declaration, as more particularly described in Section 7.8 below.
1.10. “Association” shall mean the Estrella Community Association, an Arizona non-profit corporation, its successors and assigns.
1.11. “Association Rules” shall mean the reasonable rules and regulations adopted by the Association pursuant to Section 5.3 of this Declaration.
1.12. “Base Index” shall mean the Index published for the month which is 12 months prior to the month for which the Comparison Index is published.
1.13. “Board” shall mean the body responsible for administration of the Association, selected as provided in this Declaration and the By-Laws, and generally serving the same role as the board of directors under Arizona corporate law.
1.14. “By-Laws” shall mean the By-Laws of the Association, as amended or restated from time to time.
1.15. “City” shall mean the City of Goodyear.
1.16. “Common Areas” shall mean all real property and the improvements or amenities thereon, all easements and licenses, and all personal property and facilities, which the Association owns, leases or otherwise holds possessory or use rights for the common use and enjoyment of all Owners (including, but not limited to areas used for landscaping, flood control, drainage, bicycle or jogging paths, parks, recreational areas, open space, walkways, equestrian trails and pedestrian and vehicular ingress and egress).
1.17. “Comparison Index” shall mean the Index published for the month which is three months prior to an Adjustment Date.
1.18. “Community-Wide Standard” shall mean the standard of conduct, maintenance, or other activity generally prevailing throughout the Covered Property. Such standard shall be that which has been established by the Declarant, and the New Construction Committee, and may be more specifically determined by the Board of Directors.
1.19. “Condominium Parcel” shall mean a Parcel designated in a Tract Declaration as having a Residential Condominium Development land use classification.
1.20. “Condominium Unit” shall mean a Dwelling Unit constituting a “Unit” in a “condominium,” together with any appurtenant interest in all “common elements,” as such terms are defined in Chapter 9, Title 33, Arizona Revised Statutes, as amended.
1.21. “Covenant to Share Costs” shall mean and refer to any declaration of easements and covenant to share costs executed by Declarant and Recorded which creates certain easements and use rights for the benefit of the Association and the present and future owners of the real property subject thereto and which obligates the Association and such owners to share the costs of maintaining certain property described therein.
1.22. “Covered Property” shall mean the property more particularly described on Exhibit “B” attached hereto and incorporated by this reference.
1.23. “Declarant” shall mean, SunChase Estrella Limited Partnership, a Delaware limited partnership, and the successors and assigns of its rights and powers hereunder.
1.24. “Declaration” shall mean this Amended and Restated Declaration of Covenants, Conditions, Restrictions and Easements, as amended or supplemented from time to time.
1.25. “Delinquent Amount” shall mean any Special Use Fee. or Assessment, or installment thereof, not paid when due.
1.26. “Developer Owner” shall mean a Person in the .business of developing, leasing and/or selling real property and who has acquired one or more Lots or Parcels in connection with, and in the course of, such business, for the purpose of developing, leasing or selling such Lots or Parcels.
1.27. “Dwelling Unit” shall mean any building, or part thereof, situated upon a Lot or Parcel and intended for use and occupancy as a residence by a Single Family.
1.28. “Event of Foreclosure” shall mean the foreclosure or the transfer of title by trustee’s deed at a trustee’s sale in regard to a mortgage, deed of trust or other encumbrance superior in priority to an Assessment Lien pursuant to Section 8.2.
1.29. “Exempt Property” shall mean portions of the Covered Property not subject to Assessments, which shall be the following areas now or hereafter located within Estrella:
1.29.1 all Government Property, but only if and to the
extent designated as Exempt Property in the applicable Tract Declaration;
1.29.2 a Parcel designated in a Tract Declaration as having
a land use classification of School Use or Church Use, unless and to the extent it is otherwise indicated in the applicable Tract Declaration;
1.29.3 property owned by a public or private utility company (or leased by such company) which is utilized in the provision of utility services to all or portions of the Covered Property and the Owners and Occupants thereof, but only if and to the extent designated as Exempt Property in the applicable Tract Declaration;
1.29.4 all Common Areas for so long as Declarant or the
Association is the owner thereof; and
1.29.5 all Limited Common Areas.
A Tract Declaration with respect to any property included within any of the categories listed in Sections 1.29.1, 1.29.2, or 1.29.3 above may designate such property as being Exempt Property only for a limited period of time (whether fixed with reference to a date, occurrence of some condition or otherwise), may provide that such property is only partially Exempt Property (and therefore subject to only partial assessments indefinitely or for a limited period of time), or may provide that such property is wholly Exempt Property.
1.30. “Funds” shall mean all funds and property collected and received by the Association from any source.
1.31. “Government Property” shall mean all land and improvements owned by or dedicated to a public or governmental agency or authority for so long as the public or governmental agency or authority is the owner or beneficiary thereof, except for land or improvements, or both, owned and/or operated by a public or governmental agency or authority acting in a proprietary capacity.
1.32. “Guidelines” shall mean the rules and regulations adopted, amended and supplemented by the Review Committee.
1.33. “Index” shall mean the Consumer Price Index, All Items, All Urban Consumers (1967 = 100) published by the United States Department of Labor.
1.34. “Joint Committee” shall mean the Estrella Joint Committee, Inc., an Arizona nonprofit corporation, its successors and assigns.
1.35. “Joint Committee By-Laws” shall mean the By-Laws of the Estrella Joint Committee, Inc., establishing the powers, duties, and organization of the Joint Committee, as such may be amended from time to time.
1.36. “Limited Common Areas” shall mean all areas of any Neighborhood or Parcel now or hereafter designated on a Tract Declaration or a Recorded subdivision plat as an area to be used in common by the Owners or Occupants of a particular Neighborhood or Parcel. Such areas shall be maintained by or at the expense of the Owners or Occupants of such Neighborhood or Parcel through assessments of a Neighborhood Association or as a Neighborhood Expense funding through a Neighborhood Assessment.
1.37. “Lot” shall mean an area of real property designated as a “Lot” on a Recorded subdivision plat covering any Parcel, or a portion thereof, which area of real property is limited by a Tract Declaration or other Recorded instrument to Single Family residential use; or a Condominium Unit.
1.38. “Maintenance Assessment” shall mean the assessments, if any, levied by the Board pursuant to Sections 7.7 and 7.13 of this Declaration.
1.39. “Master Development Plan” shall mean the conceptual or site development plan at any time in effect for Estrella and approved by the City or any other governmental jurisdiction having the authority to approve and regulate master plans for planned area developments located in Estrella, as the same may be amended from time to time. A current copy of the applicable Master Development Plan shall be on file at all times in the Association office.
1.40. “Maximum Annual Assessment” shall mean the amount established by or in accordance with Section 7.4 of this Declaration.
1.41. “Member” shall mean any Owner, including Declarant for so long as Declarant is a Class “A” or Class “B” Member.
1.42. “Membership” shall mean the amalgam of rights and duties of Owners, including Declarant so long as Declarant is a Class “A” or Class “B” Member, with respect to the. Association.
1.43. “Neighborhood” shall mean each separately developed residential Parcel within the Covered Property, whether or not governed by a Neighborhood Association, in which the Owners of Lots may have common interests other than those common to all Members of the Association. For example, and by way of illustration and not limitation, each Condominium Parcel, townhome development, cluster home development, and Single-Family Parcel may constitute a separate Neighborhood, or a Neighborhood may be
comprised of more than one housing type with other features in common. In
addition, each Parcel intended for development as any of the above shall constitute a Neighborhood, subject to division into more than one Neighborhood upon development.
Where the context permits or requires, the term Neighborhood shall also refer to the Neighborhood Committee (established in accordance with the By-Laws) or Neighborhood Association having concurrent jurisdiction over the property within the Neighborhood. Neighborhood boundaries may be established and modified as provided in Section 5.6.
1.44. “Neighborhood Assessments” shall mean assessments levied against the Lots in a particular Neighborhood or Neighborhoods to fund Neighborhood Expenses.
1.45. “Neighborhood Association” shall mean any condominium association or other owners association having concurrent jurisdiction with the Association over any Neighborhood.
1.46. “Neighborhood Expenses” shall mean the actual and estimated expenses incurred or anticipated to be incurred by the Association for the benefit of Owners of Lots within a particular Neighborhood or Neighborhoods, which may include a reasonable reserve for capital repairs and replacements, as the Board may specifically authorize from time to time and as may be authorized herein or in a Tract Declaration or supplementary declarations applicable to such Neighborhood(s).
1.47. “Non-Developer Owner” shall mean any Owner who is not a Developer Owner.
1.48. “Occupant” shall mean any Person, other than an Owner, occupying a Parcel or Lot, or any portion thereof or building or structure thereon, as a Resident, tenant, licensee or otherwise, other than on a merely transient basis.
1.49. “Owner” shall mean the Record holder of legal title to the fee simple interest in any Lot or Parcel or, in the case of a Recorded “contract” (as that term is defined in A.R.S. Section 33-741(2)), the holder, of Record, of the purchaser’s or vendee’s interest under said contract, but excluding others who hold such title merely as security. If fee simple title to a Lot or Parcel is vested of Record in a trustee pursuant to A.R.S. Section 33-801 et. seq. for purposes of this Declaration, legal title shall be deemed to be held by the trustee (or the trustee’s successor of Record), and not by the trustee. An Owner shall include any Person who holds Record title to a Lot or Parcel in joint ownership or as an undivided fee interest.
1.50. “Parcel” shall mean each area of the Covered Property shown as a separate piece of real property on the Master Development Plan; provided, however, that in the event a Parcel is split in any manner into portions under separate ownership, each portion under separate ownership shall thereafter constitute a separate Parcel.
1.51. “Person” shall mean a corporation, partnership, joint venture, individual, trust or any other legal entity.
1.52. “Record.” “Recording” and “Recorded” shall mean placing or having placed a document of public record in the Official Records of Maricopa County, Arizona.
1.53. “Resident” shall mean:
1.53.1 each tenant who resides on the Covered Property and
the members of the immediate family of each tenant who reside on the Covered Property;
1.53.2 each Owner who resides on the Covered Property and
the members of the immediate family of each owner who reside on the Covered Property; and
1.53.3 such persons as the Board, in its absolute discretion, may authorize, including, without limitation, guests of an Owner or tenant.
1.54. “Residential Condominium Development” shall mean a development comprised or to be comprised of Condominium Units and the surrounding Limited Common Areas.
1.55. “Review Committee” shall mean the New Construction Committee or the Modifications Committee, as appropriate, formed pursuant to Article 4 of this Declaration.
1.56. “Single Family” shall mean a group of persons related by blood, marriage or legal adoption, or a group of not more than three unrelated persons maintaining a common household as a single housekeeping unit.
1.57. “Single Family Parcel” shall mean a Parcel designated in a Tract Declaration as having a Single Family Residential land use classification or a Parcel on which no Tract Declaration has yet been recorded but which is designated for residential development with no more than 15 Dwelling Units per acre on the Master Development Plan.
1.58. “Single Family Residential Development” shall mean a development comprised or to be comprised for Single Family use.
1.59. “Special Assessments” shall mean the assessments, if any, levied by the Board pursuant to Section 7.5 of this Declaration.
1.60. “Special Use Fees” shall mean any fees charged by the Association for use of the Common Areas pursuant to Section 3.1 of this Declaration.
1.61. “Tract Declaration” shall mean any declaration of-covenants, conditions and restrictions or like instrument Recorded by Declarant after the Recording of this Declaration in regard to one or more Parcels, or portions thereof, or group(s) of Lots, which shall in all cases be consistent with and subordinate to this Declaration.
1.62. “Visible From Neighboring property” shall mean, with respect to any given object, that such object is or would be visible to an individual on the Review Committee who is standing at ground level on property within the Covered Property.
1.63. “Voting Group” shall mean one or more Voting Members who vote on a common slate for election of directors to the Board of Directors of the Association, as more particularly described in Section 6.8 of this Declaration or, if the context so indicates, the group of Members whose Lots are represented thereby.
1.64. “Voting Member” shall mean the representative selected by the Class “A” Members within each Neighborhood to be responsible for casting all Class “A” votes attributable to Lots in the Neighborhood on all matters requiring a vote of the membership (except as otherwise specifically provided in this Declaration and in the By-Laws). The term “Voting Member” shall also refer to alternate Voting Members acting in the absence of the Voting Member and any Owners authorized personally to cast the votes for their respective Lots pursuant to Section 6.7.
PROPERTY AND PERSONS BOUND BY THIS DECLARATION
2.1. General Declaration. As portions of Estrella are developed,
Declarant, without obligation, intends to Record one or more Tract Declarations that will, among other things, designate Common Areas and Limited
Common Areas, designate Neighborhoods, and establish such additional covenants, conditions and restrictions as may be appropriate for the respective portions of Estrella. Declarant reserves the right to impose different restrictions on different portions of the Covered Property in its sole discretion. Declarant hereby declares that all of the Covered Property is and shall be held, conveyed, hypothecated, encumbered, leased, occupied, built upon or otherwise used, improved or transferred, in whole or in part, subject to this Declaration and any Tract Declarations applicable thereto, as amended or modified from time to time. Notwithstanding the preceding sentence, except as expressly provided herein, Exempt Property shall not be subject to Assessments under this Declaration; provided, however, that any restrictions imposed in this Declaration upon the Owners and Occupants concerning the use and maintenance of such property shall be applicable at all times unless otherwise provided in a Tract Declaration pursuant to Section 7.12.
This Declaration is declared and agreed to be in furtherance of a general plan for the development and sale of the Covered Property and is established for the purpose of enhancing and perfecting the value, desirability and attractiveness of the Covered Property. This Declaration shall run with the Covered Property for all Purposes and shall be binding upon and inure to the benefit of Declarant and all Owners and Occupants of the Covered Property and their successors in interest, whether or not stated in any document or deed transferring any interest in any Parcel or Lot to or from such Owners or Occupants. Nothing in this Declaration or in any Tract Declaration shall be construed to prevent Declarant from modifying any part of the Master Development Plan or from dedicating or conveying portions of Estrella not subject to this Declaration (if any) for uses other than as a Lot, a Parcel or Common Areas.
2.2. Association Bound. This Declaration shall be binding upon and
benefit the Association, and its successors and assigns.
2.3. Master Association. The Covered Property is a portion of a
larger tract of land owned for development as part of a master planned community known as Estrella. The Master Development Plan for Estrella includes the Covered Property and such other areas which may or may not be developed as a part of the master planned community.
In furtherance of the Master Development Plan, a master association
may be formed, in Declarant’s sole discretion. If a master association is
formed, the Association may, upon the approval of Voting Members representing at least two thirds (2/3) of the Class “A” votes in the Association, and the consent of the Class “B” Member, if such exists, become a “subassociation” or “neighborhood association,” by whatever name denominated, of the master
association. If the Association becomes a subassociation of such a master
association, every Owner shall be subject to a master declaration, in addition to this Declaration, and every Owner shall automatically become a member of and subject to assessment by the master association, as well as the Association.
In addition to all of the rights and obligations which are conferred or imposed upon the Association pursuant to this Declaration, any supplementary declaration, Tract Declaration, the By-Laws or the Articles of Incorporation,
the Association shall be entitled to exercise any of the rights conferred upon it and shall be subject to all of the obligations imposed upon it pursuant to the master declaration and the by-laws of the master association. The Association and all committees thereof shall also be subject to all superior rights and powers which may be conferred upon the master association pursuant to the master declaration and the by-laws of the master association. The Association shall take no action in derogation of the rights of, or contrary to the interests of, the master association.
The Association may, by written contractual agreement or covenant, assign or delegate certain of its rights, powers, and obligations which are conferred or imposed upon the Association pursuant to this Declaration, any supplementary declaration, Tract Declaration, the By-Laws or the Articles of
Incorporation, to the master association. Included in the rights, powers or
obligations which may be assigned to the master association, without limitation, are the rights to collect assessments; the right to exercise architectural review; and the right to enforce use restrictions, rules and maintenance standards.
2.4. Restatement and Replacement. This Declaration restates and replaces that certain Declaration of Covenants, Conditions, Restrictions and Easements for Estrella recorded at Instrument No. 88 047365 in the Records of Maricopa County, Arizona (the “First Amended Declaration”), which replaced that certain Declaration of Covenants, Conditions, Restrictions and Easements for Estrella recorded at Instrument No. 87 762848 in the Records of Maricopa County, Arizona (the “Original Declaration”). The Original Declaration and the First Amended Declaration shall have no further force or effect and are hereby terminated.
EASEMENTS AND RIGHTS OF ENJOYMENT IN THE COMMON AREAS
3.1. Easements and Rights of Enjoyment. Each Owner shall have a
nonexclusive easement for use and enjoyment in and to the Common Areas, which nonexclusive easement shall be appurtenant to and shall pass with the title to each Owner’s Lot or Parcel. All Occupants shall have a nonexclusive, nontransferable temporary license to use and enjoy the Common Areas so long as they remain Occupants. The foregoing grants and rights are subject, among other things, to the following limitations:
3.1.1 . This Declaration, any applicable Tract Declaration,
any other applicable covenants, and any restrictions or limitations contained in any deed conveying such property to the Association;
3.1.2 The right of the Association or Joint Committee to
charge Special Use Fees for the use of one or more of the Common Areas. The Special Use Fees may be set by the Board or the Joint Committee from time to time, in its absolute discretion. Special Use Fees shall be charged only for actual entry upon or utilization of those Common Areas selected by the Board or the Joint Committee to be subject to a Special Use Fee, and shall be intended to collect revenue from the actual users of such selected Common Areas, regardless of whether such actual users are Owners and Occupants, or
are Persons other than Owners and Occupants, so that all of the costs of operating such selected Common Areas are not borne by all of the Owners through Annual Assessments, but rather are borne at least in part, by the Owners, Occupants and other Persons utilizing such selected Common Areas;
3.1.3 The right of the Association or the Joint Committee to suspend the voting rights and the rights to use and enjoyment of the Common Areas of any Owner or Occupant, as the case may be subject to the notice provisions of Section 10.3.;
(a) for any period during which an Assessment remains delinquent;
(b) for a period not to exceed 60 days for any infraction of this Declaration, a Tract Declaration, the Guidelines or any rules or regulations adopted pursuant thereto; or
(c) for successive 60-day periods if any such delinquency or infraction is not corrected during any preceding suspension period;
3.1.4 The right of the Association to limit the number of guests of an Owner or Occupant who may use the Common Areas;
3.1.5 The right of the Association to regulate use of the Common Areas in accordance with this Declaration; and
3.1.6 The rights of certain Owners and Occupants to the exclusive use of those portions of the Common Areas designated as Limited Common Areas.
3.2. Ingress and Egress Over Certain Common Areas.
3.2.1 The Association may own land which is intended to be used for landscaping adjacent to streets in Estrella. Such landscaping area will often separate a Neighborhood or Parcel from the street nearest to the Parcel, thereby creating a need for the Owner of the Parcel to have ingress and egress rights over the landscaping area in order to have access to the street. Therefore, Declarant hereby creates, grants and conveys to the Owner and Occupants of each Parcel, their agents, employees, quests and invitees, a permanent, nonexclusive easement (an “Access Easement”) for vehicular and pedestrian ingress and egress in, upon, over and across such landscaping area (a “Landscape Tract”). At such time as the exact location of such Access Easement is determined with respect to a particular Parcel and approved by Declarant or the Review Committee, as applicable, it shall be indicated on the Recorded subdivision plat or plats for the Parcel or on such other Recorded instrument as is acceptable to Declarant or the Review Committee, as applicable. For itself and the Association, Declarant retains and reserves the right to use each Landscape Tract for landscaping, drainage, irrigation lines, pedestrian and bicycle paths, and other purposes which do not preclude the uses permitted herein.
3.2.2 At its sole cost and expense, the Owner of a Parcel or Owners and Occupants of a Neighborhood benefited by such an Access Easement shall construct all necessary improvements in connection with such
Access Easement, and maintain such improvements in good working order, condition and repair (including, without limitation, all cleaning, sweeping, restriping and repairing of roadways), and in compliance with all applicable governmental regulations. During the construction phase of the improvements on a Parcel, Declarant or the Association, as applicable, shall grant to the Owner(s) thereof and its agents and employees a temporary license to enter upon the applicable Landscape Tract as is reasonably necessary in order to construct such improvements, and such Owner shall be fully responsible and liable for making any and all repairs and replacement to landscaping and other improvements on such Landscape Tract caused by or resulting from such activities.
3.2.3 Unless Declarant or the Board authorizes the public dedication or transfer of all or any parts of such an Access Easement to a municipal corporation, the Owner of the Parcel to which such Access Easement is appurtenant (or Declarant or the Board, if such Owner fails to do so), shall on an annual basis prohibit the use of such Access Easement by the general public during a twenty-four (24) hour period.
3.2.4 Each Owner, its successors, assigns and grantees, hereby agrees to indemnify and hold harmless Declarant, its successors and assigns, and the Association, from and against any and all damages, costs and liabilities, including, without limitation, attorneys’ fees, mechanic’s and materialmen’s liens, real estate taxes and assessments, arising out of or in connection with the Access Easement appurtenant to such Owner’s Parcel.
3.3. Delegation of _Use. Any Owner or Occupant, in accordance with the Association Rules and this Declaration, may delegate his rights of use and enjoyment in the Common Areas to the members of his family, his Occupants, or quests subject to the limitations set forth herein and in the Association Rules. The Association shall have the right and authority to take appropriate enforcement action to prohibit abusive use of the Common Area and take such steps as specified in Section 10.3.
3.4. Waiver of Use. No Owner may exempt himself from personal liability for Assessments, or release the Lot or Parcel owned by him from the liens or charges arising under this Declaration or any Tract Declaration or by any other Recorded instrument by waiver of his or his Occupants’, or quests’ rights of use and enjoyment of the Common Areas.
3.5. Temporary Sign Easement. Declarant hereby reserves to itself and its agents temporary easement over, upon and across those portions of the Common Areas adjacent to publicly dedicated streets and roadways for purposes of installing and maintaining signs identifying Persons building upon or developing portions of the Covered Property. The easement reserved hereby shall expire and terminate upon completion of construction and sales activities upon the Covered Property, but in no event later than fifteen years after the date this Declaration is Recorded.
3.6. Lake and Park Area.
(a) Ownership and Use. A portion of the Common Areas currently existing and owned by the Association is a lake and adjacent park area. The lake shall be available for use by Owners and Occupants, and owners of other
residential, nonresidential and resort properties, and their guests, invitees and licensees, within the Master Development Plan for Estrella, regardless of whether such Persons are subject to this Declaration. Additionally, the lake may be available to the general public, subject to the terms of this Declaration, the By-Laws, and the rules and regulations of the Association. The lake and adjacent park area may become property owned by the Joint Committee, which, if formed, the Association shall be a member.
All Persons, including all Owners, are hereby advised that no representations or warranties have been or are made by the Declarant or any other Person with regard to the continuing ownership or use of the lake and adjacent park area, or whether such lake is usable for swimming, fishing, boating, or other recreational purposes. No purported representation or warranty, written or oral, in such regard, shall ever be effective without an amendment hereto executed by Declarant.
All Owners’ and Occupants’ right to use and interest in the lake shall be subject to the right of the Association to improve, sell, mortgage, pledge, or hypothecate the lake, or any part thereof, to another association, a master association, or other Person or entity.
(b) Maintenance. So long as the lake is owned by the Association, it shall be responsible for maintaining the lake, the lands beneath the water surface, the shoreline, and the responsibility for maintaining, repairing, replacing and insuring all improvements located adjacent to the lake such as the beach, beach club, and any real and personal property associated therewith. The expense of such maintenance shall be a general common expense funding through Annual Assessments unless the Board establishes any Special Use Fees for the lake pursuant to Section 3.1.2, or portions of the lake expenses are allocated as a Neighborhood Expense. The Association shall have the authority to enter into agreements or a Covenant to Share Costs with any other community association or homeowners association, or commercial entity or association, which allocates use rights and obligates the beneficiaries to contribute to the maintenance costs.
(c) Assumption of the Risk. Each Owner, by acceptance of a deed to a Lot, acknowledges on behalf of himself and all Occupants of such Lot, and all Persons making use of the lake acknowledge, that there are inherent dangers associated with the use of the lake. Natural and man-made hazards, including without limitation, hazardous marine life and currents, may exist in the lake. The Association may, but shall not be obligated to, maintain or support certain activities, personnel, and programs to enhance the safety of the lake and Persons using the lake; however, each Owner and each Person making use of the lake assumes all risks of using the lake. Neither the Association, its officers, directors, employees or agents, the Declarant, its partners or affiliates, nor any committee created to promote or address lake safety shall be insurers of any Person’s safety while using the lake nor shall any of them be liable for any injury, loss, or damage arising out of use of the lake by any Person, by reason of failure to warn, failure to keep the lake in a safe condition, failure to take adequate safety precautions or address known problems, ineffectiveness of safety measures undertaken, or any other reason.
ARCHITECTURAL AND LANDSCAPING RESTRICTIONS AND CONTROL
4.1. General. No structure shall be placed, erected, or installed upon any Lot, and no improvements (including staking, clearing, excavation, grading and other site work, exterior alteration of existing improvements, and planting or removal of landscaping materials) shall take place except in compliance with this Article and approval of the appropriate Review Committee under Section 4.2, unless exempted from the application and approval requirements pursuant to Section 4.3.
Any Owner may remodel, paint or redecorate the interior of structures on his Lot without approval. However, modifications to the interior of screened porches, patios, and similar portions of a Lot which is Visible From Neighboring Property shall be subject to approval. No approval shall be required to repaint the exterior of a structure in accordance with the originally approved color scheme or to rebuild in accordance with originally approved plans and specifications.
All dwellings constructed on any portion of the Covered Property shall be designed by and built in accordance with the plans and specifications of a licensed architect unless otherwise approved by the Review Committee in its sole discretion.
This Article shall not apply to the activities of the Declarant, the Joint Committee, nor to improvements to the Common Areas by or on behalf of the Association.
This Article may not be amended without the Declarant’s written consent so long as the Declarant owns any land within the Covered Property or which is subject to annexation to this Declaration pursuant to Section 12.1.
4.2. Architectural Review. Responsibility for administration of
the Guidelines and review of. all applications for construction and modifications under this Article shall be handled by the two committees described in subsections (a) and (b) below (generally referred to as the Review Committee or Review Committees). The members of the Review Committees need not be Members of the Association or representatives of Members. Review Committee members may, but need not, include architects, landscape architects, engineers or similar professionals, whose compensation, if any, shall be established from time to time by entity entitled to appoint the members of such Review Committee; provided, however, at least one Review Committee member or a hired consultant shall be an architect or engineer. The Review Committees may establish and charge reasonable fees for review of applications hereunder and may require such fees to be paid in full prior to review of any application. Such fees may include the reasonable costs incurred by the Review Committees in having any application reviewed by architects, engineers or other professionals.
(a) New Construction Committee. The New Construction Committee
(NCC) shall consist of at least three, but not more than five, persons and shall have exclusive jurisdiction over all original construction on any
portion of the Covered Property. Until 100% of the Covered Property has been developed and conveyed to Owners other than Developer Owners, the Declarant retains the right to appoint all members of the NCC who shall serve at the Declarant’s discretion. There shall be no surrender of this right prior to that time except in a written instrument in recordable form executed by Declarant. Upon the expiration of such right, the Board may, at its option, either appoint the members of the NCC, who shall thereafter serve and may be removed in the Board’s discretion, or combine the NCC and the MC (hereafter defined) into a single Review Committee which shall assume all powers and responsibilities of both committees under this Declaration.
(b) Modifications Committee. The Board of Directors may establish a Modifications Committee (MC) to consist of at least three and no more than five persons, all of whom shall be appointed by and shall serve at the discretion of the Board. The MC, if established, shall have jurisdiction over modifications, additions, or alterations made on or to existing structures on Lots or containing Lots and the adjacent open space. The MC may delegate its authority as to a particular Neighborhood to the Neighborhood Association, if any, so long as the MC has determined that such Neighborhood Association has in force review and enforcement practices, procedures, and appropriate standards at least equal to those of the MC. Such delegation may be revoked and jurisdiction reassumed at any time by written notice. The NCC shall have the right to veto any action taken by the MC or a Neighborhood Association which the NCC determines, in its sole discretion, to be inconsistent with the guidelines promulgated by the NCC.
4.3. Guidelines and Procedures.
(a) Guidelines. The Declarant has prepared the Guidelines for the Covered Property. The Guidelines may contain general provisions applicable to all of the Covered Property, as well as specific provisions which vary according to land use and from one portion of the Covered Property to another depending upon the location, unique characteristics, and intended use. The Guidelines are intended to provide guidance to Owners and Developer Owners regarding matters of particular concern to the Review Committees in considering applications hereunder. The Guidelines are not the exclusive basis for decisions of the Review Committees and compliance with the Guidelines does not guarantee approval of any application.
The NCC shall adopt the Guidelines and thereafter shall have sole and full authority to amend them. Any amendments to the Guidelines shall be prospective only and shall not apply to require modifications to or removal of structures previously approved once the approved construction or modification has commenced. There shall be no limitation on the scope of amendments to the Guidelines; the NCC is expressly authorized to amend the Guidelines to remove requirements previously imposed or otherwise to make the Guidelines less restrictive.
The NCC shall make the Guidelines available to Owners and Developer Owners who seek to engage in development or construction within the Covered Property. In the Declarant’s discretion, such Guidelines may be Recorded, in which event the Recorded version, as it may unilaterally be amended from time to time, shall control in the event of any dispute as to which version of the Guidelines was in effect at any particular time.
The MC may promulgate detailed procedures and standards governing its area of responsibility, consistent with those set forth in the Guidelines and subject to review and approval or disapproval by the NCC. Any architectural guidelines and standards adopted by the MC may be more restrictive than the Guidelines, but under no circumstances shall they be inconsistent with the Guidelines.
(b) Procedures. Plans and specifications showing the nature, kind, shape, color, size, materials, and location of all proposed structures and improvements shall be submitted to the appropriate committee for review and approval (or disapproval). In addition, information concerning irrigation systems, drainage, lighting, landscaping and other features of proposed construction shall be submitted as applicable. In reviewing each submission, the Review Committees may consider the quality of workmanship and design, harmony of external design with existing structures, and location in relation to surrounding structures, topography, and finish’grade elevation, among other things. Decisions of the Review Committees may be based on purely aesthetic considerations. Each Owner acknowledges that opinions on aesthetic matters are subjective and may vary as committee members change over time.
In the event that the NCC or MC fails to approve or to disapprove any application within 30 days after submission of all information and materials reasonably requested, the application shall be deemed approved. However, no approval, whether expressly granted or deemed granted pursuant to the foregoing, shall be inconsistent with the Guidelines unless a variance has been granted in writing by the NCC pursuant to Section 4.5.
Notwithstanding the above, the NCC by resolution may exempt certain activities from the application and approval requirements of this Article, provided such activities are undertaken in strict compliance with the requirements of such resolution.
4.4. No Waiver of Future Approvals. Approval of proposals, plans and specifications, or drawings for any work done or proposed, or in connection with any other matter requiring approval, shall not be deemed to constitute a waiver of the right to withhold approval as to any similar proposals, plans and specifications, drawings, or other matters subsequently or additionally submitted for approval.
4.5. Variance. The NCC may authorize variances from compliance with any of its guidelines and procedures when circumstances such as topography, natural obstructions, hardship, or aesthetic or environmental considerations require, but only in accordance with duly adopted rules and regulations. Such variances may only be granted, however, when unique circumstances dictate and no variance shall (a) be effective unless in writing; (b) be contrary to this Declaration; or (c) estop the NCC from denying a variance in other circumstances. For purposes of this Section, the inability to obtain approval of any governmental agency, the issuance of any permit, or the terms of any financing shall not be considered a hardship warranting a variance.
4.6. Limitation of Liability. Review and approval of any application pursuant to this Article is made on the basis of aesthetic considerations only and the Review Committees shall not bear any
responsibility for ensuring the structural integrity or soundness of approved construction or modifications, nor for ensuring compliance with building codes and other governmental requirements. Neither the Declarant, the Association, the Board, the Review Committees, or member of any of the foregoing shall be held liable for any injury, damages, or loss arising out of the manner or quality of approved construction on or modifications to any Lot. In all matters, the Review Committees and their members shall be defended and indemnified by the Association.
4.7. Enforcement. Any structure or improvement placed or made in
violation of this Article shall be deemed to be nonconforming. Upon written request from the Board or the Declarant, Owners shall, at their own cost and expense, remove such structure or improvement and restore the property to substantially the same condition as existed prior to the nonconforming work. Should an Owner fail to remove and restore as required, the Board or its designees shall have the right to enter the property, remove the violation, and restore the property to substantially the same condition as previously existed. All costs, together with the interest at the maximum rate then allowed by law, may be assessed against the benefited Lot and collected as provided in Articles 7 and 8.
Unless otherwise specified in writing by the Review Committee granting approval, all approvals granted hereunder shall be deemed conditioned upon completion of all elements of the approved work and all work previously approved with respect to the same Lot, unless approval to modify any application has been obtained. In the event that any Person fails to commence and diligently pursue to completion all approved work, the Association shall be authorized, but not obligated, after notice to the Owner of the Lot and an opportunity to be heard in accordance with the procedures set forth in Section 10.3, to enter upon the Lot and remove or complete any incomplete work and to assess all costs incurred against the Lot and the Owner thereof.
Any contractor, subcontractor, agent, employee, or other invitee of an Owner who fails to comply with the terms and provisions of this Article and the Guidelines may be excluded by the Board from the Covered Property, subject to the notice and hearing procedures contained in the By-Laws. In such event, neither the Association, its officers, or directors shall be held liable to any Person for exercising the rights granted by this paragraph.
In addition to the foregoing, the Association shall have the authority and standing to pursue all legal and equitable remedies available to enforce the provisions of this Article and the decisions of the Review Committees.
4.8. Antennae and Satellite Dishes. No exterior antennae, satellite dishes or similar receivers designed or used primarily for the reception of television signals shall be placed, erected or maintained on any portion of the Covered Property (including, but not limited to, on any building or other structure situated upon any portion of the Covered Property).
4.9. Pre-wiring of Residential Structures. All Dwelling Units constructed within the Covered Property shall, at the time of their initial construction, be pre-wired for reception of cable television signals in
accordance with the minimum standards for such wiring described on Exhibit “C” attached hereto and incorporated herein by reference, as such standards may be amended from time to time by the Review Committee.
ORGANIZATION OF ASSOCIATION
5.1. Formation of Association. The Association shalt be a non-profit Arizona corporation charged with the duties and vested with the powers prescribed by law and set forth in the Articles, the By-Laws and this Declaration. Neither the Articles nor the By-Laws shall be amended or interpreted so as to be inconsistent with this Declaration. The provisions of this Declaration shall be cumulative with any Tract Declaration and additional covenants, restrictions, and declarations applicable to any Neighborhood, and the Association may, but shall not be required to, enforce the covenants, conditions, and provisions .applicable to any Neighborhood; provided, however, in the event of a conflict between or among this Declaration and such covenants or restrictions, .and/or the provisions of any articles of incorporation, by-laws, rules and regulations, policies, or practices adopted or carried out pursuant thereto, this Declaration, the By-Laws, Articles, and Use Restrictions and Rules of the Association shall prevail over those of any Neighborhood. The foregoing priorities shall apply, but not be limited to, the lien for assessments created in favor of the Association. Nothing in this Section shall preclude any supplementary declaration, Tract Declaration or other recorded declaration, covenants and restrictions applicable to any portion of the Covered Property from containing additional restrictions or provisions which are more restrictive than the provisions of this Declaration, and the Association shall have the standing and authority to enforce the same.
5.2. Board of Directors and Officers. The affairs of the Association shall be conducted by the Board and such officers as the Board may
elect or appoint in accordance with the Articles and the By-Laws. Initially,
the Board shall consist of 3 Members or other persons, and Declarant shall have the right to appoint all such directors as more specifically provided in Article 6 and the By-Laws. The Board may appoint various committees at its discretion. The Board may also appoint or engage a manager to be responsible for the day-to-day operation of the Association and the Common Areas. The Board shall determine the compensation to be paid to the manager.
5.3. Association Rules. By a majority vote of the Board, the Association may, from tine to time and subject to the provisions of this Declaration, adopt, amend and repeal the Association Rules. The Association Rules may restrict and govern the use of the Common Areas; provided, however, that the Association Rules shall not discriminate among Owners and Occupants except to reflect their different rights and obligations as provided herein, and shall not be inconsistent with this Declaration, the Articles or the By-Laws. The Association Rules shall be intended to enhance the preservation and development of the Covered Property, the Common Areas and the Limited Common Areas. Upon adoption, the Association Rules shall have the same force and effect as if they were set forth herein. A copy of the Association’s Rules, as adopted, or amended, shall be available for inspection at the office of the Association.
5.4. Personal Liability. No Board member, officer, committee member, employee or representative of the Association, or the Association, shall be personally liable to any Owner, or to any other Person, including the Association, for any damage, loss, costs, fees (including reasonable attorneys’ fees), or prejudice suffered or claimed on account of any of their acts, omissions, errors or negligence, provided, however, that the limitations set forth in this Section shall not apply to any Person who has failed to act in good faith or has engaged in willful or intentional misconduct.
5.5. Mergers or Consolidations. The Association shall have the right, power and authority to participate in mergers or consolidations with any other non-profit corporation whose objectives, methods and taxable status and format of operation are similar to those of the Association (a “Merger Candidate”). Merger or consolidation of the Association with a Merger Candidate must be approved in advance by Voting Members representing at least two-thirds (2/3) of the Class “A” votes in the Association, and the consent of the Class “B” Member, if such exists.
The Association’s properties, rights and obligations shall • be
transferred to and assumed by the surviving or consolidated corporation by operation of law, or, alternatively, the properties, rights and obligations of the Merger Candidate shall be transferred by operation of law to the Association as the surviving corporation. The surviving or consolidated corporation, at a minimum, shall have the same administrative responsibilities and enforcement rights established by this Declaration in regard to the Covered Property. In addition, for so long as there is a Class “B” Member and to the extent Declarant has theretofore sought the approval of an Agency in regard to the Association, any such merger or consolidation will be subject to the approval by such Agency if so required by the rules and regulations of the Agency.
5.6. Neighborhoods. Every Lot within the Covered Property shall be
located within a Neighborhood. The Lots within a particular Neighborhood may be subject to additional covenants and/or the Lot Owners may all be members of a Neighborhood Association in addition to the Association. However, a Neighborhood Association shall not be required except in the case of a condominium or otherwise as required by law. Any Neighborhood which does not have a Neighborhood Association may elect a Neighborhood Committee, as described in the By-Laws, to represent the interests of Owners of Lots in such Neighborhood.
Any Neighborhood may request that the Association provide a higher level of service or special services for the benefit of Lots in such Neighborhood and, upon the affirmative vote, written consent, or a combination thereof, of Owners of a majority of the Lots within the Neighborhood, the Association shall provide the requested services. The cost of such services, which may include a reasonable administrative charge in such amount as the Board deems appropriate (provided, any such administrative charge shall apply at a uniform rate per Lot to all Neighborhoods receiving the same service), shall be assessed against the Lots within such Neighborhood as a Neighborhood Assessment pursuant to Section 7.15.
Exhibit “B” to this Declaration shall assign the property described therein to a specific Neighborhood (by name or other identifying designation), which Neighborhood may be then existing or newly created. So long as the Class “B” Membership exists, the Declarant may unilaterally amend this Declaration or any supplementary declaration from time to time to redesignate Neighborhood boundaries; provided, two or more existing Neighborhoods shall not be combined without the consent of Owners of a majority of the Lots in the affected Neighborhoods.
The Owner(s) of a majority of the total number of Lots within any Neighborhood may at any time petition the Board of Directors to divide the property comprising the Neighborhood into two or more Neighborhoods. Such petition shall be in writing and shall include a survey of the entire parcel which indicates the proposed boundaries of the new Neighborhoods or otherwise identifies the Lots to be included within the proposed Neighborhoods. Such petition shall be deemed granted 30 days following the filing of all required documents with the Board unless the Board of Directors denies such application in writing within such 30-day period. The Board may deny an application only upon determination that there is no reasonable_ basis for distinguishing between the areas proposed to be divided into separate Neighborhoods. All applications and copies of any denials shall be filed with the books and records of the Association and shall be maintained as long as this Declaration is in effect.
MEMBERSHIPS AND VOTING
6.1. Votes of Owners of Lots and Parcels. Every Owner of a Lot or
Parcel which is subject to assessment automatically shall be a Member of the Association and shall remain a Member for so long as such ownership continues. Each Owner shall have (a) one vote for each Lot owned within a Parcel that has been fully subdivided, or (b) in the case of the owner of a Single Family Parcel or Condominium Parcel which has not been divided into Lots by a Recorded subdivision plat or other Recorded instrument, one vote for each Dwelling Unit permitted upon the Parcel under the applicable Tract Declaration, or if no Tract Declaration has been Recorded, then one vote for each Dwelling Unit permitted upon such Parcel under the then current Master Development Plan.
Each Owner’s Membership in the Association shall be appurtenant to and may not be separated from ownership of the Lot or Parcel to which the Membership is attributable. There shall be only the Memberships for each Lot and Parcel as are described herein. Joint ownership or ownership of undivided interests in any property as to which a Membership is established pursuant hereto shall not cause there to be more Memberships than the number established herein. Members shall be shared by any joint owners of, or owners of undivided interests in, the property interests to which such Memberships are attributable and not be increased because of joint or undivided multiple ownership thereof.
6.2. Declarant. Declarant shall be a Member of the Association for
so long as it holds a Class “A” or Class “B” Membership.
6.3. Voting Classes. The Association shall have two classes of voting Members:
6.3.1 Class A. Class “A” Members shall be all Owners except Declarant (until the conversion of Declarant’s Class “B” Membership to Class “A” Membership as provided below). Subject to the authority of the Board to suspend an Owner’s voting rights in accordance with the provisions hereof, Class “A” Members shall have the number of votes provided in Section 6.1. Notwithstanding the foregoing, a Class “A” Member shall not be entitled to vote with respect to any Lots or Parcels in regard to which the Owner is paying only a reduced Assessment pursuant to Section 7.3; and
6.3.2 Class “B”. The Class “B” Member shall be Declarant. The rights of the Class “B” Member, including the right to appoint a majority of the members of the Board of Directors during the Class “B” Membership, and the right to approve, or withhold approval of, actions proposed under this Declaration, the By-Laws and the Articles, are specified in the relevant sections of this Declaration, the By-Laws and the Articles. Additionally, after termination of the Class “B” .Membership, the Declarant shall have a right to disapprove actions of the Board and committees as provided in Section 6.10.
The Class “B” Membership automatically shall cease and be converted to a Class “A” Membership upon the happening of the first of the following events:
(a) the date which is 120 days after the date upon which 75% of the total number of Lots approved on the Master Development Plan for the Covered Property have been conveyed to a Non-Developer Owner;
(b) February 1, 2018; or
(c) the date on which Declarant Records a written notice electing to convert the Class “B” Membership to Class “A” Membership.
6.4. Right to Vote. No change in the ownership of a Lot or Parcel
shall be effective for voting purposes until the Board receives written notice of such change together with satisfactory evidence thereof. Fractional votes shall not be allowed. In the event that a Lot or Parcel is owned by more than one Person, and such Owners are unable to agree as to how their vote or votes shall be cast, they shall not be entitled to vote on the matter in question. If any Owner casts a vote or votes representing a certain Lot or Parcel, the Owner will thereafter be conclusively presumed to be acting with the authority and consent of all other Owners of such Lot or Parcel unless objection thereto is made to the Board, in writing, at or prior to the time the vote or votes are cast. In the event more than one (1) Person casts or attempts to cast a vote for a particular Lot or Parcel, all such votes shall be deemed void.
6.5. Members’ Rights. Each Member shall have the rights, duties
and obligations set forth in this Declaration, the Articles, the By-laws, a supplementary declaration, a Tract Declaration and any rules and guidelines adopted pursuant thereto.
6.6. Transfer of Membership. Except as otherwise provided in this
Declaration, the rights, duties and obligations of a Class “A” Member cannot and shall not be assigned, transferred, pledged, conveyed or alienated in any way except upon transfer of ownership of such Class “A” Member’s Lot or Parcel, and then only to the transferee thereof. Such transfer may be effected by deed, intestate succession, testamentary disposition, foreclosure or other legal process authorized under Arizona law. Any attempt to make a nonapproved form of transfer shall be void. Any transfer of ownership in a Lot or Parcel shall operate to transfer the Membership appurtenant thereto to the new Owner.
6.7. Voting Members. Each Neighborhood shall elect a Voting Member
who shall be responsible for casting all votes attributable to Lots owned by Class “A” Members in the Neighborhood on all Association matters requiring a Membership vote, except as otherwise specified in this Declaration or the By-Laws. In addition, each Neighborhood shall elect an alternate Voting Member who shall be responsible for casting such votes in the absence of the Voting Member. The Voting Member and alternate Voting Member from each Neighborhood shall be elected on an annual basis, either by written ballot cast by mail or at a meeting of the Class “A” Members within such Neighborhood, as the Board determines; provided, upon written petition signed by Class “A” Members holding at least 10% of the votes attributable to Lots within any Neighborhood, the election for such Neighborhood shall be held at a
meeting. The presence, in person or by proxy, of Class “A” Members
representing at least 30% of the total Class “A” votes attributable to Lots in the Neighborhood shall constitute a quorum at any Neighborhood meeting.
The Board shall call for the first election of a Voting Member from a Neighborhood at such time as the Board, in its sole discretion deems the number of Owners in such Neighborhood great enough to benefit from the utilization of Voting Members. Subsequent elections shall be held within 30 days of the same date each year. Each Class “A” Member who owns a Lot within the Neighborhood shall be entitled to cast one equal vote per Lot owned. The candidate who receives the greatest number of votes shall be elected as Voting Member and the candidate receiving the next greatest number of votes shall be elected as the alternate Voting Member. The Voting Member and the alternate Voting Member shall serve a term of one year and until their successors are elected.
Any Voting Member may be removed, with or without cause, upon the vote or written petition of Owners of a majority of the total number of Lots owned by Class “A” Members in the Neighborhood which the Voting Member represents.
Until such time as the Board first calls for election of a Voting Member for any Neighborhood, the Owners within such Neighborhood shall be entitled personally to cast the votes attributable to their respective Lots on any issue requiring a vote of the Voting Members under this Declaration, the By-Laws, or the Articles.
6.8. Voting Groups. The Declarant may designate Voting Groups consisting of one or more Neighborhoods for the purpose of electing directors to the Board, in order to promote representation on the Board of Directors for
various groups having dissimilar interests and to avoid a situation in which the Voting Members representing similar Neighborhoods are able, due to the number of Lots in such Neighborhoods, to elect the entire Board of Directors, excluding representation of others. Following termination of the Class “B” Membership, the number of Voting Groups within the Covered Property shall not exceed the total number of directors to be elected by the Class “A” Members. The Voting Members representing the Neighborhoods within each Voting Group shall vote on a separate slate of candidates for election to the Board, with each Voting Group being entitled to elect the number of directors specified in the By-Laws or established by the Board.
The Declarant shall establish Voting Groups, if at all, not later than the date of expiration of the Class “B” Membership by Recording, a supplementary declaration identifying each Voting Group by legal description or other means such that the Lots within each Voting Group can easily be determined. Such designation may be amended from time to time by the Declarant, acting alone, at any time prior to the expiration of the Class “B” Membership.
After expiration of the Class “B” Membership, the Board shall have the right to file or amend such supplementary declaration upon the vote of a majority of the total number of directors. Neither recordation nor amendment of such supplementary declaration shall constitute an amendment to this Declaration, and no consent or approval of any Person shall be required except as stated in this paragraph. Until such time as Voting Groups are established, all of the Covered Property shall constitute a single Voting Group. After a supplementary declaration establishing Voting Groups has been filed, any and all portions of the Covered Property which are not assigned to a specific Voting Group shall constitute a single Voting Group.
6.9. Directors During the Class “B” Membership. The affairs of the Association shall be governed by the Board. The Board shall consist of three to seven directors; provided, however, the Board may be increased to nine members after termination of the Class “B” Membership. The initial Board shall consist of three directors appointed by the Class “B” Member. Directors selected by the Class “B” Member shall serve at in its sole discretion and the pleasure of the Class “B” Member until termination of such Membership as provided in Section 6.3.2.
Notwithstanding the foregoing:
(a) Within 30 days after the time that Class “A” Members other than Developer Owners own 25% of the Lots permitted by the Master Development Plan for the Covered Property, or whenever the Class “B” Member earlier determines, the President shall call for an election by which the Voting Members shall be entitled to elect one of the three directors, who shall be an at-large director. The remaining two directors shall be appointees of the Class “B” Member. The director elected by the Voting Members shall not be subject to removal by the Class “B” Member and shall be elected for a term of two years or until the happening of the event described in subsection (b), whichever is shorter. If such director’s term expires prior to the happening of the event described in subsection (b), a successor shall be elected for a like term.
(b) Within 30 days after the time that Class “A” Members other than Developer Owners own 50% of the Lots permitted by the Master Development Plan for the Covered Property, or whenever the Class “B” Member earlier determines, the Board shall be increased to five directors. The President shall call for an election by which the Voting Members shall be entitled to elect two of the five directors, who shall serve as at-large directors. The remaining three directors shall be appointees of the Class “B” Member. The directors elected by the Voting Members shall not be subject to removal by the Class “B” Member and shall be elected for a term of two years or until the happening of the event described in subsection (c) below, whichever is
shorter. If such directors’ terms expire prior to the happening of the event described in subsection (c) below, successors shall be elected for a like term.
(c) Within 120 days after termination of the Class “B” Membership, the President shall call for an election by which the Voting Members shall be entitled to elect three of the five directors, who shall serve as at-large directors. The remaining two directors shall be appointees of the Class “B” Member. The directors elected by the Voting Members shall not be subject to removal by the Class “B” Member and shall serve until the first annual meeting following the termination of the Class “B” Membership. If such annual meeting is scheduled to occur within 90 days after termination of the Class “8” Membership, this subsection shall not apply and directors shall be elected in accordance with subsection (d) below.
(d) Not later than the first annual meeting after the termination of the Class “B” Membership, the Board shall be increased to seven directors and an election shall be held. Six directors shall be elected by the Votng Members, with an equal number of directors elected by the Voting Members representing each Voting Group and any remaining directorships filled at large by the vote of all Voting Members. Three directors shall serve a term of two years and three directors shall serve a term of one year, as such directors determine among themselves.
So long as the Declarant owns any property within the Covered Property or which may be annexed pursuant to Section 12.1, the Declarant shall be entitled to appoint one director. At such time as the Declarant no longer owns any property within the Covered Property or which may be annexed pursuant to Section 12.1, the director appointed by the Declarant shall resign and the remaining directors shall be entitled to appoint a director to serve until the next annual meeting, at which time the Voting Members shall be entitled to elect a director to fill such position. Such director shall be elected for a term of two years.
Upon the expiration of the term of office of each director elected by the Voting Members, the Voting Members entitled to elect such director shall be entitled to elect a successor to serve a term of two years. The directors elected by the Voting Members shall hold office until their respective successors have been elected.
6.10. Qpclarant’s Right to Disapprove Actions. Notwithstanding the termination of the Class “B” Membership, until 75% of the Lots approved on the Master Development Plan for the Covered Property, the Declarant shall have a
right to disapprove any action, policy or program of the Association, the Board and any committee which, in the sole judgment of the Declarant, would tend to impair rights of the Declarant or Developer Owners under the Declaration or these By-Laws, or interfere with development or construction of any portion of the Covered Property or other property owned by Declarant, or diminish the level of services being provided by the Association.
(a) The Declarant shall be given written notice of all meetings and proposed actions approved at meetings (or by written consent in lieu of a meeting) of the Association, the Board or any committee. Such notice shall be given by certified mail, return receipt requested, or by personal delivery at the address it has registered with the Secretary of the Association, which notice complies with the notice requirements for Board meetings and which notice shall set forth with reasonable particularity the agenda to be followed at such meeting; and
(b) The Declarant shall be given the opportunity at any such meeting to join in or to have its representatives or agents join in discussion from the floor of any prospective action, policy, or program which would be subject to the right of disapproval set forth herein.
No action, policy or program subject to the right of disapproval set forth herein shall become effective or be implemented until and unless the requirements of subsections (a) and (b) above have been met.
The Declarant, its representatives or agents shall make its concerns, thoughts, and suggestions known to the Board and/or the members of the subject committee. The Declarant, acting through any officer or director, agent or authorized representative, may exercise its right to disapprove at any time within 10 days following the meeting at which such action was proposed or, in the case of any action taken by written consent in lieu of a meeting, at any time within 10 days following receipt of written notice of the proposed action. This right to disapprove may be used to block proposed actions but shall not include a right to require any action or counteraction on behalf of any committee, or the Board or the Association. The Declarant shall not use its right to disapprove to reduce the level of services which the Association is obligated to provide or to prevent capital repairs or any expenditure required to comply with applicable laws and regulations.
ASSESSMENTS AND CREATION OF LIEN
7.1. Creation of Assessment Lien; Personal Obligation of Lot or Parcel Owner. Declarant, for each Lot and Parcel constituting part of the Covered Property, hereby covenants and agrees, and each Owner is deemed to covenant and agree, to pay to the Association the Special Use Fees as provided in Section 3.1, and the Assessments, as hereinafter established.
The amount and time for payment of the Special Use Fees and the Assessments shall be determined by the Board pursuant to this Declaration and the Articles and By-Laws. The Special Use Fees and the Assessments, together
with interest thereon and the costs and reasonable attorneys’ fees, if any, incurred by the. Association in connection with the enforcement and collection thereof or in otherwise enforcing this Declaration, shall be a charge and continuing servitude and lien upon the Lot or Parcel against which such Special Use Fees or Assessments are made and, in addition, shall be the personal obligation of the Owner of such Lot or Parcel at the time when such Special Use Fees or Assessments become due and payable. The Assessment Lien is imposed and created by this Declaration and the Recording of a notice specifying the amount of a delinquent Assessment Lien shall not be necessary to create or enforce the Assessment Lien. Notwithstanding any other provision of this Declaration to the contrary, as to each Lot or Parcel owned by Declarant, Declarant shall be obligated to pay only twenty-five percent (25%) of the Assessments which would otherwise be payable in respect of such Lot or Parcel, until an occupied Dwelling Unit shall be situated on such Lot or Parcel, provided that during any period when Declarant is paying reduced Assessments pursuant to this sentence, Declarant shall contribute to the Association such funds as may be required from time to time to meet any budget deficit which results from Declarant having paid such reduced Assessments.
7.2. Annual Assessments. The Association by and through the Board
shall levy the Annual Assessments based on a budget of expected Association expenses for the coming year for the purposes set forth herein above. The Annual Assessments levied by the Association shall be used to promote the recreation, health, safety and welfare of the Owners and Occupants, to enhance the quality of life within the Covered Property, to preserve the value of the Covered Property, to pay the costs of administration of the Association and the maintenance of the Common Areas, and to otherwise further the interests of the Association as the Board deems appropriate. Prior to preparing the budget of Annual Assessments, the Board shall obtain from the Joint Committee a statement of Joint Committee expenses applicable to the Covered Property, and such statement shall allocate such expenses as Association expenses, Neighborhood Expenses, or expenses attributable to the property of a specific owner or owners, as appropriate. Subject to Section 7.9, the Association shall incorporate the statement from the Joint Committee into its budget for Assessments.
Subject to the provisions of Section 7.4, the Board may, during an Assessment Period, revise the amount of the Annual Assessment in order to meet expenses which exceed the amounts previously budgeted by the Association and collect such increased Annual Assessment in accordance with Section 7.9 below. The Annual Assessment for a Single Family Parcel which has not yet been subdivided into Lots or a Condominium Parcel as to which a condominium declaration has not yet been Recorded shall be an amount equal to the Annual Assessment for a Lot multiplied by the number of Dwelling Units permitted to be constructed on the Parcel under the applicable Tract Declaration (or, if there is no Tract Declaration, under the Master Development Plan).
7.3. Rate of Assessment. Subject to Sections 7.4 and 7.5 hereof,
the amount of the Annual Assessments and Special Assessments shall be fixed by the Board, in its sole discretion but, subject to this Section, shall be equal against all Lots. The Annual Assessment for an Assessment Period need not equal the full amount of the Maximum Annual Assessment determined for that
Assessment Period pursuant to Section 7.4. In no event, however, shall the Annual Assessment for an Assessment Period be greater than the Maximum Annual Assessment determined for that Assessment Period pursuant to Section 7.4.
7.3.1 The Developer Owner of a Lot or Condominium Unit shall pay only 25% of the Annual Assessments, Neighborhood Assessments, and Special Assessments for such Lot or Condominium Unit until the earliest of:
(a) the initial conveyance of a completed Dwelling Unit thereon to a different Owner; or
(b) 12 months from the later of (i) the date on which the Lot or Condominium Unit (or the Parcel from which such Lot or Condominium Unit is located) was included within the Covered Property or (ii) the date of Declarant’s conveyance of the Lot or Condominium Unit (or the Parcel from which such Lot or Condominium Unit is located) to a Developer Owner.
If the Developer Owner ceases to be entitled to the 25% rate because of the occurrence of the event described in Section 7.3.1(b) above, then thereafter the Developer Owner shall pay only 40% of the Annual Assessments and Special Assessments for such Lot until the earliest of:
(c) the initial conveyance of a completed Dwelling Unit thereon to a different Owner; or
(d) 12 months after for the date the 25% rate terminated.
However, if the approved site plan for the Condominium Parcel contemplates the construction of more than one building thereon, the Condominium Parcel shall, for purposes of this Section only, be deemed subdivided into the number of sub-parcels equal to the number of approved buildings on the approved site plan, in which case the Annual Assessments and Special Assessments shall be deemed divided equally among such sub-parcels such that each of the buildings shall be allocated to a separate sub-parcel, and the Developer Owner shall pay only 25% or 40% as applicable of the prorated Annual Assessments, Neighborhood Assessments, and Special Assessments against each sub-parcel until the earliest of the events specified in subsections (a) and (b) above, or (c) and (d) above, as applicable, with respect to such sub-parcel.
The Developer Owner of a Single Family Parcel which remains an intact Parcel because it has not yet been subdivided shall pay reduced rates hereunder as though the Parcel had already been subdivided. In the event the Parcel is subdivided into phases and less than all of such phases are subdivided into Lots, the applicable reduced rates set forth above in this Section 7.3.1 will continue to apply to the unsubdivided remainder of the Parcel until the dates specified above.
7.3.2 A Non-Developer Owner shall not be entitled to the reduced assessment rates provided in Section 7.3.1, and a Developer Owner shall be entitled to such reduced rates only if he is a Developer Owner with respect to the specific Lot or Parcel in question. If a Developer Owner ceases to qualify for the reduced payments provided for herein above during an
Assessment Period, the Developer Owner shall immediately notify the Board, in writing, of the change in status. The failure of a Developer Owner to notify the Board of the change in status shall not prevent or preclude the reinstatement of the full payment obligation pursuant hereto from taking effect as of the applicable date as provided herein. The Association may from time to time request that any Developer Owner of property being assessed at a reduced rate furnish to the Association evidence that such Developer Owner continues to be entitled to a reduced assessment rate under this Section 7.3, and if such Developer Owner fails to produce such evidence within 30 days following the date of the Association’s request, or if such evidence as is furnished is unsatisfactory, in the Board’s reasonable discretion, to demonstrate such Developer Owner’s continued entitlement to the reduced assessment rate, the Board may terminate such reduced assessment rate as of the date reasonably deemed appropriate by the Board.
7.4. Maximum Annual Assessment. The Maximum Annual Assessment shall be determined as follows:
7.4.1 For the fiscal year ending May 31, 1988, the Maximum
Annual Assessment shall be $500.00 for each Lot.
7.4.2 Thereafter, except as provided in Section 7.4.3
below, the Maximum Annual Assessment for each Lot for any fiscal year of the Association shall be equal to the Maximum Annual Assessment for the immediately preceding fiscal year, increased by the greater of:
(a) Fifteen percent (15%) of the Maximum Annual Assessment for the
Lot in effect during the immediately preceding fiscal year; or
(b) an amount equal to the amount of increase in the Index during the prior year, if any, calculated as follows: If the Comparison Index has increased over the Base Index, the Maximum Annual Assessment for the immediately succeeding Assessment Period shall be calculated by multiplying the then effective Maximum Annual Assessment by a fraction, the numerator of which is the Comparison Index and the denominator of which is the Base Index. In no case, however, shall the Maximum Annual Assessment calculated pursuant to the preceding formula ever be less than the Maximum Annual Assessment in effect prior to the Adjustment Date. If the Index is eliminated or its method of determination is changed, the foregoing formula shall be altered, if possible, so as to achieve substantially the same effect as the foregoing formula. If this is not possible, a new formula shall be adopted by the Board. The Annual Assessment for an Assessment Period need not equal the full amount of the Maximum Annual Assessment determined for that Assessment Period
pursuant to Section 7.4. In no event, however, shall the Annual Assessment
for an Assessment Period be greater than the Maximum Annual Assessment determined for that Assessment Period pursuant to this Section 7.4.
7.4.3 The Maximum Annual Assessment for an Assessment
Period may be increased above the Maximum Annual Assessment for such Assessment Period otherwise determined under Section 7.4.2 above by an affirmative vote of Voting Members representing at least two-thirds (2/3) of the Class “A” votes in the Association, and the consent of the Class “B” Member, if such exists, except that if the utility charges or insurance
premiums paid by the Association in the 12-month period prior to the subject Assessment Period are in excess of those paid during the 12-month period immediately preceding such prior 12-month period, or such utility charges or insurance premiums increase unexpectedly during the course of the subject Assessment Period, the Board may increase the Maximum Annual Assessment otherwise determined under Section 7.4.2 above for the subject Assessment Period by the prorata share for each Lot of the additional utility or insurance costs without the Membership vote described in this Section 7.4.3.
7.5. Special Assessments. The Association may levy a Special Assessment but only for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair or replacement of a capital improvement owned by the Association or for defraying other extraordinary expenses, provided, however, that such Special Assessment shall be approved by Voting Members representing at least two-thirds (2/3) of the Class “A” votes in the Association, and the consent of the Class “B” Member, if such exists. Special Assessments Shall be assessed uniformly among the Owners, except as authorized under Section 7.3 hereof.
7.6. Notice and Quorum for Any Action Authorized Under Sections 7.4
and 7.5. Written notice to any meeting of the Members of the Association called for the purpose of conducting a vote required under Sections 7.4 or 7.5 shall be sent to all Voting Members not less than 30 days nor more than 60 days in advance of such meeting. At such meeting, the presence of Voting Members entitled to cast 60% of the total Association Vote (exclusive of
suspended voting rights) shall constitute a quorum. If the required quorum is
not present, another meeting shall be called for such purpose, subject to the foregoing notice requirements, and the required quorum at the subsequent meeting shall be one-half of the quorum required at the initially scheduled meeting. The subsequent meeting shall be held within 60 days following the date of the initially scheduled meeting.
7.7. Maintenance Assessments. In addition to any Annual Assessment, Special Assessment, Neighborhood Assessment, and the Assessments arising under Section 7.13, the Board shall have the authority to levy and collect Maintenance Assessments for costs and expenses attributable to the special characteristics or needs of a particular Lot or Parcel, or if the Owner of a Lot or Parcel contracts with the Association for the Association to provide particular maintenance services in regard to such Owner’s Lot or Parcel.
7.8. Annual Assessment Period. Except as otherwise provided herein below, the Assessment Period shall be the fiscal year commencing on June 1 of each year and terminating on May 31 next following. The Board may, in its sole discretion, from time to time, change the Assessment Period.
7.9. Billing and Collection Procedures. The Board shall have the
right to adopt procedures for the purpose of making, billing and collecting the Assessments and Special Use Fees, which procedures may include delegating to one or more Neighborhood Associations the authority and obligation of billing and collecting some or all of the Assessments and Special Use Fees. The failure of the Association to send a bill to an Owner shall not relieve such Owner of the Owner’s liability for an Assessment or Special Use Fee. No
Recorded Assessment Lien shall be foreclosed or otherwise enforced until the Owner has been given not less than 30 days written notice thereof prior to the commencement of such foreclosure or enforcement. The notice shall be addressed to the owner at the address of the Owner on the records of the Association. It shall be the responsibility of the Owner to inform the Association in writing of a change of address.
The Association shall be under no duty to refund any payments received by the Association even if the ownership of a Lot or Parcel changes during an Assessment Period. Any successor owner shall be given credit for any unrefunded prepayments made by a prior Owner. In case the Owner of a Lot or Parcel having a right to pay a reduced payment amount as provided herein fails to notify the Board at such time as the payment amount should be increased, such Owner shall nonetheless be liable for the full amount of the Assessment and such Owner’s failure to notify the Board shall not relieve such Owner of the liability for such full Assessment. No owner shall be entitled to claim any offsets against Assessments for any reason, including, without limitation, a claim that the Association is not properly exercising its duties a or responsibilities under this Declaration.
The Joint Committee shall make an annual election, 60 days prior to the commencement of the Association’s fiscal year, of whether to send an invoice of the Joint Committee expenses applicable to the Covered Property to
the Association, or to invoice the Owners directly. If the Joint Committee
invoices the Association, the Association shall be responsible for billing the Owners, collecting the Assessments, and promptly remitting such sums as are due to the Joint Committee. Alternatively, the Joint Committee may invoice
the Owners. In either situation, the Joint Committee shall have all rights
and collection remedies of the Association to collect such sums as are due.
7.10. Collection Costs and Interest on Delinquent Amounts. Any Delinquent Amount shall have added thereto a late charge of 15% if such Delinquent Amount is not paid within 15 days after its due date. In addition, the Delinquent Amount shall bear interest from its due date until paid at a rate equal to the greater of: (a) 12% per annum; or (b) the then prevailing interest rate on loans insured by FHA or VA. The Owner shall be liable for all costs, including, but not limited to, attorneys’ fees and collection agency fees, which may be incurred by the Association in collecting any Delinquent Amount. The Board may also Record an Assessment Lien against the applicable Lot or Parcel and may establish a fixed fee to be reimbursed to the Association for the Association’s cost in Recording such Assessment Lien, processing the delinquency, and Recording a release of lien. The foregoing fee shall be treated as a collection cost of the Association secured by the Recorded Assessment Lien.
7.11. Statement of Payment. Upon receipt of a written request therefor from any Owner or Resident, the Board, within a reasonable time thereafter, shall issue to the requesting party a written statement stating that as of the date of that statement:
7.11.1 all Assessments and Special Use Fees (including collection fees, if any, in regard hereto) have been paid with respect to such Owner’s or Resident’s Lot or Parcel; or
7.11.2 if such have not been paid, the amount(s) then due
and payable. The Association may make a reasonable charge for the issuance of such statement. Any such statement shall be conclusive and binding with respect to any matter set forth therein.
7.12. Exempt Property. Exempt Property shall be exempt from Assessments (except as may be provided in Sections 7.13 and 7.14) and the Assessment Lien, and shall have no voting rights in the Association, provided, however, that should any Exempt Property cease to be Exempt Property for any reason, it shall thereupon be subject to Assessments (prorated as of the date it ceased to be Exempt Property) and the Assessment Lien, and shall have voting rights in the Association as otherwise determined in this Declaration. Notwithstanding any provision to the contrary in this Declaration, a Tract Declaration applicable to Government Property may provide for such Government Property to be totally exempt from all of the provisions of this Declaration for so long as such property remains Government Property.
7.13. Assessment Of Certain Maintenance Costs. In the event the need for maintenance or repair of areas maintained by the Association is caused through the willful or negligent act or omission of any Owner (or of any other Person for whom such Owner is legally responsible under-applicable state law), the cost of such maintenance or repair shall be added to and become a part of the Assessments to which such Owner and such Owner’s Lot or Parcel is subject and shall be secured by the Assessment Lien, and by a Recorded Assessment Lien if deemed appropriate by the Board.
7.14. Improper Maintenance and Use of Lots and Parcels. In the event any portion of any Lot or Parcel is maintained so as to present a nuisance, or substantially detracts from or affects the appearance or quality of any neighboring Lot, Parcel or other area, or is used in a manner which violates this Declaration or any applicable Tract Declaration, or in the event the Owner of any Lot or Parcel fails to perform such Owner’s obligations under this Declaration, any applicable Tract Declaration, the Association Rules, or the Guidelines, the Association, by Board resolution, may make a finding to such affect, specifying the particular condition(s) that exist, and thereafter give notice to the Owner of such Lot or Parcel that unless specified corrective action is taken within a specified time period, the Association, at such Owner’s cost, may take whatever action is appropriate to compel compliance, including, without limitation, appropriate legal action. If at the expiration of the specified time period the requisite corrective action has not been taken by the Owner, the Association is hereby authorized and empowered, at its sole discretion, to cause corrective action to be taken or to commence appropriate legal action and the cost thereof, including court costs and attorneys’ fees, shall be added to and become a part of the Assessments to which the offending Owner and the Owner’s Lot or Parcel is subject and shall be secured by the Assessment Lien, and by a Recorded Assessment Lien if deemed appropriate by the Board.
7.15. Neighborhood Assessments. At least 60 days before the beginning of each fiscal year, the Board shall prepare a separate budget covering the estimated Neighborhood Expenses for each Neighborhood on whose behalf Neighborhood Expenses are expected to be incurred during the coming year. The Board shall be entitled to set such budget only to the extent that
this Declaration, any supplementary declaration, a Tract Declaration, or the By-Laws specifically authorizes the Board to assess certain costs as a Neighborhood Assessment, or if the Joint Committee has allocated a portion of the Joint Committee’s expenses to a Neighborhood. Any Neighborhood may request that additional services or a higher level of services be provided by the Association and, upon approval of Owners in accordance with Section 5.6, any additional costs shall be added to such budget.
Neighborhood Expenses shall be allocated equally among all Lots within the Neighborhood benefited thereby and levied as a Neighborhood Assessment; provided, if so specified in the supplementary declaration or Tract Declaration applicable to such Neighborhood or if so directed by petition signed by a majority of the Owners within the Neighborhood, any portion of the assessment intended for exterior maintenance of structures, insurance on structures, or replacement reserves which pertain to particular structures shall be levied on each of the benefited Lots in proportion to the benefit received.
The Board shall cause a copy of such budget and notice of the amount of the Neighborhood Assessment for the coming year to be delivered to each Owner of a Lot in the Neighborhood at least 30 days prior to the beginning of the fiscal year. Such budget and assessment shall become effective unless disapproved by Owners of a majority of the Lots in the Neighborhood to which the Neighborhood Assessment applies. However, there shall be no obligation to call a meeting for the purpose of considering the budget except on petition of Owners of at least 10% of the Lots in such Neighborhood. This right to disapprove shall only apply to those line items in the Neighborhood budget which are attributable to services requested by the Neighborhood.
If the proposed budget for any Neighborhood is disapproved or if the Board fails for any reason to determine the budget for any year, then until such time as a budget is determined, the budget in effect for the immediately preceding year shall continue for the current year.
ENFORCEMENT AND THE ASSESSMENT LIEN
8.1. Association Remedies to Enforce Assessments. If any Owner fails to pay any Assessments or Special Use Fees when due, the Association or the Joint Committee may (and each owner hereby authorizes the Association and the Joint Committee to) enforce the payment thereof and the Assessment Lien and Recorded Assessment Lien by taking either or both of the following actions, concurrently or separately (and by exercising either remedy the Association does not prejudice or waive its right to exercise the other remedy):
8.1.1 Bring an action at law against the owner to recover
judgment against the Owner who is personally liable for the Assessments or Special Use Fees; and
8.1.2 Foreclose the Recorded Assessment Lien against the
appropriate Lot or Parcel in accordance with then prevailing Arizona law
relating to the foreclosure of realty mortgages (including the right to recover any deficiency) and, at the Association’s option, the Association may bid for and purchase the Lot or Parcel at any foreclosure sale. For purposes of this Article, the Assessment Lien shall extend to (and phrases such as “appropriate Lot or Parcel” or “the Lot or Parcel” shall be deemed to include) all Parcels owned by the delinquent Owner and, in the case of a delinquent Developer Owner, to all Lots and Parcels owned by such Developer Owner, regardless of whether the Delinquent Amounts owed by the Owner in question relate to all or less than all of the Lots or Parcels owned by such Owner.
8.2. Subordination of Assessment Lien. The Assessment Lien shall
be superior to all charges, liens or encumbrances which hereafter are or may be imposed on any Lot or Parcel except:
8.2.1 the lien of any first mortgage or deed of trust encumbering the Lots and Parcels which was Recorded prior to this Declaration;
8.2.2 the lien for taxes or other governmental assessments which is deemed superior hereto by applicable law; and
8.2.3 the lien of any first mortgage or deed of trust that
(a) is guaranteed, insured, or owned in whole or in part by an Agency, or
(b) became a first mortgage or deed of trust prior to the Recording of a Recorded Assessment Lien (for purposes of this Section, a mortgage or deed of trust not in first priority shall become a first mortgage or deed of trust upon payment in full and release of record of all prior mortgages and deeds of trust).
Sale or transfer of any Lot or Parcel shall not affect the Assessment Lien, provided, however, the sale or transfer of any Lot or Parcel pursuant to any first mortgage or deed of trust foreclosure or any proceeding in lieu thereof, shall extinguish the Assessment Lien only as to payments which became due prior to such sale or transfer. No other sale or transfer shall relieve a Lot or Parcel, or the owner thereof, for liability from any Assessment theretofore becoming due nor from the Assessment Lien arising in regard thereto. In addition, no Event of Foreclosure shall impair the Assessment Lien or a Recorded Assessment Lien, except that a Person obtaining an interest in a Lot or Parcel through an Event of Foreclosure shall take title subject only to such Assessments as shall accrue sequent to the date the Person acquires its interest. Notwithstanding the foregoing, a Tract Declaration on Parcels on which no Agencies will be requested to provide loans or loan guarantees may exempt any Lot or Parcel from the effect of subsection 8.2.3(b) and the preceding three sentences.
8.3. Release of Recorded Assessment Lien. Upon the complete curing
of any default for which a Recorded Assessment Lien was Recorded by the Association, the Association shall Record an appropriate release of the Recorded Assessment Lien.
USE OF ASSOCIATION FUNDS
9.1. Use of Association Funds. In addition to the powers enumerated in the Articles and By-Laws, the Association shall apply all Funds for the common good and benefit of the Covered Property, the Owners and the Occupants. The Funds may be used, among other things, to insure, acquire, construct, alter, maintain, provide and operate, in any manner whatsoever, any and all land, properties, improvements, services, projects, programs, studies and systems, within Covered Property and the Common Areas, which may be necessary, desirable or beneficial to the general common interests of the owners and the Occupants.
9.2. Borrowing Power. The Association may borrow money in such amounts, at such rates, upon such terms and security, and for such periods of time as the Board deems necessary or appropriate.
9.3. Association’s Rights in Spending Funds from Year to Year. The
Association shall not be obligated to spend in any year all Funds received by it in such year, and the Board may carry forward as surplus any balances remaining. The Association shall not be obligated to reduce the amount of the Annual Assessment in the succeeding year if a surplus exists from a prior year.
RIGHTS AND POWERS OF ASSOCIATION
10.1. Rights. Powers and Duties of the Association. In addition to
the rights and powers of the Association set forth in this Declaration, the Association shall have such rights and powers as are set forth in the Tract Declarations, Articles and By-Laws, together with such rights and powers and duties as may be reasonably necessary in order to effect all the objectives and purposes of the Association as set forth herein. A copy of the Articles and By-Laws shall be available for inspection at the office of the Association during reasonable business hours.
10.2. Rules and Regulations. In addition to the right to adopt, amend and repeal rules and regulations on the matters expressly mentioned elsewhere in this Declaration, the Association, acting through the Board, shall have the right to adopt, amend and repeal rules and regulations with respect to all other aspects of the Association’s rights, activities and duties, provided such rules and regulations are not inconsistent with the provisions of this Declaration, the Articles and the By-Laws. Upon adoption, the Association Rules shall be enforceable in the same manner as this Declaration and shall have the same force and effect as if they were set forth in and were a part of this Declaration.
10.3. Association’s Rights of Enforcement. The Association, as the agent and representative of the Owners, shall have the right, but not the obligation, to enforce the provisions of this Declaration. Further, any owner (including Declarant, so long as Declarant is an owner) shall have the right and authority, but not the obligation, to enforce the provisions of this
Declaration. The Joint Committee shall be authorized to take any enforcement action which the Association would be authorized to take, in addition to such enforcement action as is authorized in the Joint Committee By-Laws.
The Association may impose sanctions for violations of this Declaration, any applicable supplementary declaration, Tract Declaration, the By-Laws, or Association Rules in accordance with procedures set forth below, including levying reasonable monetary fines, which shall constitute a lien on the lot of the violator, and suspension of the right to vote and to use any recreational facilities within the Common Areas. The Association may exercise self-help to cure violations and may suspend any services it provides to the Lot of any Owner who is more than 30 days delinquent in paying any assessment or other charge due to the Association. All remedies set forth in this Declaration, any supplementary declaration, Tract Declaration, and the By-Laws
shall be cumulative of any remedies available at law or in equity. In any
action to enforce the provisions of this Declaration or Association Rules, if the Association prevails it shall be entitled to recover all costs, including, without limitation, attorneys fees and court costs, reasonably incurred in such action.
In the event that any Occupant, tenant, employee, guest or invitee of a Lot Owner violates the Declaration, By-Laws, or a rule and a fine is imposed, the fine shall first be assessed against the Occupant; provided, however, if the fine is not paid by the Occupant within the time period set by the Board, the Owner shall pay the fine upon notice from the Association. The failure of the Board to enforce any provision of the Declaration, By-Laws, or any rule shall not be deemed a waiver of the right of the Board to do so thereafter.
(a) Notice. Prior to imposition of any sanction hereunder or under the Declaration, the Board or its delegate shall serve the alleged violator with written notice describing (i) the nature of the alleged violation, (ii) the proposed sanction to be imposed, (iii) a period of not less than 10 days within which the alleged violator may present a written request for a hearing to the Board; and (iv) a statement that the proposed sanction shall be imposed as contained in the notice unless a challenge is
begun within 10 days of the notice. If a timely challenge is not made, the
sanction stated in the notice shall be imposed; provided the Board may, but shall not be obligated to, suspend any proposed sanction if the violation is cured within the 10-day period. Such suspension shall not constitute a waiver of the right to sanction future violations of the same or other provisions and rules by any Person.
(b) Nearing. If a hearing is requested within the allotted 10-day period, the hearing shall be held before the Board in executive session. The alleged violator shall be afforded a reasonable opportunity to be heard. Prior to the effectiveness of any sanction hereunder, proof of proper notice shall be placed in the minutes of the meeting. Such proof shall be deemed adequate if a copy of the notice, together with a statement of the date and manner of delivery, is entered by the officer, director, or agent who delivered such notice. The notice requirement shall be deemed satisfied if the alleged violator or its representative appears at the meeting. The minutes of the meeting shall contain a written statement of the results of the hearing and the sanction, if any, imposed.
(c) Additional Enforcement Rights. Notwithstanding the foregoing
procedures, the Board may elect to enforce any provision of this Declaration, any supplementary declaration, Tract Declaration or the By-Laws, or the rules of the Association by self-help (specifically including, but not limited to, the towing of vehicles that are in violation of parking rules) or, following compliance with the dispute resolution procedures set forth in Article 16 of the Declaration, if applicable, by suit at law or in equity to enjoin any violation or to recover monetary damages or both, without the necessity of
compliance with the procedure set forth above. In any such action, to the
maximum extent permissible, the Owner or occupant responsible for the violation of which abatement is sought shall pay all costs, including reasonable attorney’s fees actually incurred. Any entry onto a Lot for purposes of exercising this power of self-help shall not be deemed as trespass.
10.4. Contracts with Others. Subject to the restrictions and limitations contained herein, the Articles, the By-Laws and the laws of the State of Arizona, the Association may enter into contracts with others, including Declarant and Declarant’s affiliated companies, and such contracts shall not be invalidated by the fact that one or more directors or officers of the Association are employed by or otherwise affiliated with Declarant or Declarant’s affiliates, provided, however, that the fact of such interest shall be previously disclosed or made known to the other members of the Board acting upon such contract or transaction and, provided further, that the transaction or contract is fair and reasonable. Notwithstanding the foregoing, any management contract entered into by the Association must be terminable, without penalty, by the Association for cause at any time and without cause upon reasonable notice. Any contract between the Association and Declarant or Declarant’s affiliates must be terminable by the Association without penalty upon no more than 30 days’ notice.
10.5. Procedure for Change of Use of Common Areas. Upon adoption of a resolution by the Board stating that the then current use of a specified part of the Common Areas is no longer in the best interests of the Owners and Occupants, and the approval of such resolution by Voting Members representing not less than two-thirds (2/3) of the total Class “A” votes in the in Association, and the consent of the Class “B” Member, if such exists, the Board shall have the power and right to change the use thereof (and in connection therewith to take whatever actions are required to accommodate the new use), provided such new use: (a) also shall be for the common benefit of the Owners and Occupants; and (b) shall be consistent with any applicable Tract Declaration, Recorded restrictions or zoning regulations.
10.6. Procedure for Transfers of Common Areas. The Association shall have the right to dedicate or transfer all or any part of the Common Areas to any public authority or utility provided that:
10.6.1 such a transfer or dedication does not have a
substantial, adverse effect on the enjoyment of the Common Areas by the Owners and Occupants or on the easements and licenses with respect th the Common Areas granted by this Declaration to the Owners and Occupants;
10.6.2 it is required by a Recorded subdivision plat, a
zoning stipulation or an agreement with the City; and
10.6.3 so long as the Class “B” Membership shall not have
terminated, the transfer or dedication has been approved by VA or FHA, as applicable, to the extent VA or FHA has insured or guaranteed a mortgage within the Covered Property.
Except as authorized above, the Association shall not make any such dedication or transfer or change the size, shape or location of the Common Areas, exchange the Common Areas or other property or interests which become Common Areas, or abandon or otherwise transfer Common Areas (to a nonpublic authority) except upon: (a) the adoption of a resolution by the Board stating that ownership and/or use of the relevant Common Areas is no longer in the best interests of the Owners and Occupants, and that the change desired shall be for their benefit and shall not substantially, adversely affect them,
(b) the approval of such resolution by Voting Members representing not less than two-thirds (2/3) of the votes of the total Class “A” votes in the Association, and the approval of the Class “8” Member, if such exists; and
(c) approval of the proposed action by VA or FHA, as applicable, to the extent this Declaration has been approved by VA or FHA.
10.7. Common Areas Use Fees. The Association shall have the right to grant non-Members the right to use and enjoy one or more of the Common Areas in exchange for such consideration as the Board may deem appropriate.
10.8. Personal Property and Real Property for Common Use. The Association, through action of its Board, may acquire, hold, and dispose of
tangible and intangible personal property and real property. The. Declarant
and its designees may convey to the Association improved or unimproved real estate, or interests in real estate, located within the properties described in Exhibits “A” or “B,” personal property and leasehold and other property interests. Such property shall be accepted by the Association and thereafter shall be maintained by the Association at its expense for the benefit of its Members, subject to any restrictions set forth in the deed or other instrument transferring such property to the Association.
10.9. Maintenance of the Common Areas. The Association, subject to the rights of the Owners set forth in this Declaration, shall manage and control the Common Areas and all improvements thereon (including, without limitation, furnishings, equipment, and other personal property of the Association used in connection with the Common Areas), and shall keep it in good, clean, attractive, and sanitary condition, order, and repair, pursuant to this Declaration and the By-Laws and consistent with the Community-Wide Standard. The Board is specifically authorized, but not obligated, to retain or employ professional management to assist in carrying out the Association’s responsibilities under this Declaration, the cost of which shall be a common expense of all Owners.
The Association shall maintain and keep in good repair the Area of Common Responsibility, which shall include, but need not be limited to:
(a) all landscaping and other flora, parks, lakes, structures, and
improvements, including any private streets, bike and pedestrian pathways/trails, situated upon the Common Areas;
(b) landscaping within public rights-of-way within or abutting the Covered Property;
(c) such portions of any other real property included within the Area of Common Responsibility as may be dictated by this Declaration, any supplementary declaration, Tract Declaration, a Covenant to Share Costs, or any contract or agreement for maintenance thereof entered into by the Association;
(d) all ponds, streams and/or wetlands located within the Covered Property which serve as part of the drainage and storm water retention system for the Covered Property, including any retaining walls, bulkheads or dams (earthen or otherwise) retaining water therein, and any fountains, lighting, pumps, conduits, and similar equipment installed therein or used in connection therewith; and
(e) any property and facilities owned by the Declarant and made available, on a temporary or permanent basis, for the primary use and enjoyment of the Association and its Members, such property and facilities to be identified by written notice from the Declarant to the Association and to remain a part of the Area of Common Responsibility and be maintained by the Association until such time as Declarant revokes such privilege of use and enjoyment by written notice to the Association.
The Joint Committee shall also perform such maintenance as is assigned to it by the Covenant to Share Costs and the Joint Committee By-Laws. Notwithstanding the above, the Association may delegate any of its maintenance responsibilities hereunder to the Joint Committee by agreement with the Joint Committee, and any portion of the Common Area maybe made part of the Joint Committee’s “Area of Common Responsibility,” as such term is defined in the Joint Committee By-Laws. No such delegation shall be revoked without the written consent of the Joint Committee.
The Association may assume maintenance responsibility for property within any Neighborhood, in addition to that designated by any supplementary declaration or Tract Declaration, either by agreement with the Neighborhood or because, in the opinion of the Board, the level and quality of service then being provided is not consistent with the Community-Wide Standard. All costs of maintenance pursuant to this paragraph shall be assessed as a Neighborhood Assessment only against the Lots within the Neighborhood to which the services are provided. The provision of services in accordance with this Section shall not constitute discrimination within a class.
The Association may maintain other property which it does not own, including, without limitation, property dedicated to the public, if the Board of Directors determines that such maintenance is necessary or desirable to maintain the Community-Wide Standard.
There are hereby reserved to the Association easements over the Covered Property as necessary to enable the Association to fulfill such responsibilities.
Except as otherwise specifically provided herein, all costs associated with maintenance, repair and replacement of the Area of Common Responsibility shall be a common expense to be allocated among all Lots as part of the Annual Assessment, without prejudice to the right of the Association to seek reimbursement from the owner(s) of, or other Persons responsible for, certain portions of the Area of Common Responsibility pursuant to this Declaration, a Covenant to Share Costs, other recorded covenants, or agreements with the owner(s) thereof. All costs associated with maintenance, repair and replacement of Limited Common Areas shall be a Neighborhood Expense assessed as a Neighborhood Assessment solely against the Lots within the Neighborhood(s) to which the Limited Common Areas are assigned, notwithstanding that the Association may be responsible for performing such maintenance hereunder.
Upon resolution of the Board of Directors, the Owners of Lots within each Neighborhood shall be responsible for paying, through Neighborhood Assessments, the costs of operating, maintaining and insuring certain portions of the Area of Common Responsibility within or adjacent to such Neighborhood. This may include, without limitation, the costs of maintaining any signage, entry features, right-of-way and green space between the Neighborhood and adjacent public roads, private streets within the Neighborhood, and lakes or ponds within the Neighborhood, regardless of ownership and regardless of the fact that such maintenance may be performed by the Association; provided, however, all Neighborhoods which are similarly situated shall be treated the same.
10.10. Owners’ Maintenance Responsibility. Each Owner shall maintain his or her Lot and all structures, parking areas, and other improvements comprising the Lot in a manner consistent with the Community-Wide Standard and all applicable covenants unless such maintenance responsibility is otherwise assumed by or assigned to the Association or a Neighborhood pursuant to any supplementary declaration, Tract Declaration or other declaration of covenants
applicable to such Lot. In addition to any other enforcement rights, if an
Owner fails properly to perform his or her maintenance responsibility, the Association may perform such maintenance responsibilities and assess all costs incurred by the Association against the Lot and the Owner in accordance with
Section 7.13 and 7.14. The Association shall afford the Owner reasonable
notice and an opportunity to cure the problem prior to entry, except when entry is required due to an emergency situation.
10.11. Neighborhood’s Maintenance Responsibility. Any Neighborhood
Association having responsibility for maintenance within a particular Neighborhood pursuant to additional covenants applicable to such Neighborhood shall perform such maintenance responsibility in a manner consistent with the
Community-Wide Standard. If it fails to do so, the Association may perform
such responsibilities and assess the costs as a Neighborhood Assessment against all Lots within such Neighborhood as provided in Section 7.15.
10.12. Standard of Performance. Unless otherwise specifically
provided herein or in other instruments creating and assigning such maintenance responsibility, responsibility for maintenance shall include responsibility for repair and replacement, as necessary. All maintenance shall be performed in a manner consistent with the Community-Wide Standard and
all applicable covenants. The Association, and/or an Owner and/or a Neighborhood Association shall not be liable for any damage or injury occurring on, or arising out of the condition of, property which it does not own except to the extent that it has been negligent in the performance of its maintenance responsibilities.
10.13. Security. The Association may, but shall not be obligated to, maintain or support certain activities within the Covered Property designed to make the Covered Property safer than it otherwise might be. Neither the Association, the original Declarant, nor any successor Declarant shall in any way be considered insurers or guarantors of security within the Covered Property, nor shall any of them be held liable for any loss or damage by reason of failure to provide adequate security or ineffectiveness of security measures undertaken. No representation or warranty is made that any fire protection system, burglar alarm system or other security system or measures, including any mechanism or system for limiting access to the Covered Property, cannot be compromised or circumvented, nor that any such systems or security measures undertaken will in all cases prevent loss or provide the detection or protection for which the system is designed or intended. Each Owner acknowledges, understands and covenants to inform its tenants and all occupants of its Lot that the Association, its Board of Directors and committees, Declarant, and any successor Declarant are not insurers and that each Person using the Covered Property assumes all risks of personal injury and loss or damage to property, including Lots and the contents of Lots, resulting from acts of third parties.
10.14. Powers of the Association Relating to Neighborhoods. The
Association shall have the power to veto any action taken or contemplated to be taken by any Neighborhood Association or Neighborhood Committee which the Board reasonably determines to be adverse to the interests of the Association or its Members or inconsistent with the Community-Wide Standard. The Association also shall have the power to require specific action to be taken by any Neighborhood Association or Neighborhood Committee in connection with its obligations and responsibilities hereunder or under any other covenants affecting the Covered Property.
10.15. Adjacent Properties: Covenant to Share Costs. Adjacent to or in the vicinity of the Covered Property there may be certain residential, nonresidential areas, recreational, retail, commercial, or business areas, which are not subject to this Declaration and are neither Lots nor Common Areas as defined in this Declaration (hereinafter “adjacent properties”). Such adjacent properties are not subject to this Declaration, and the owners of such adjacent properties shall not be Members of the Association and shall not be entitled to vote, nor shall they be subject to assessment under this Declaration.
The owners of some or all of the adjacent properties may enter into agreements with the Association which obligate the owners of such adjacent properties to share in certain costs associated with the maintenance, repair, replacement and insuring of portions of the Area of Common Responsibility, if any, which are used by or benefit jointly the owners of such adjacent properties and the owners within the Covered Property or which obligate the Association to share in certain costs associated with the maintenance, repair,
replacement and insuring of portions of such adjacent properties, if any, which are used by or benefit jointly the owners of such adjacent properties and the owners within the Covered Property. The owners of such adjacent properties shall be subject to assessment by the Association in accordance with the provisions of the agreement. The owners of the adjacent properties shall not be subject to the restrictions contained in this Declaration except as otherwise specifically provided herein.
10.16. Membership in the Joint Committee: The Association shall be a member of the Estrella Joint Committee, an Arizona nonprofit corporation which serves as a unifying element for all residential and nonresidential property within Estrella. The Association shall appoint one or more representatives to serve on the Joint Committee’s board of directors in accordance with the Joint Commitee’s By-Laws. The Association shall cooperate with the Joint Committee in performing its maintenance and operational responsibilities within Estrella and enforcing the community-wide standard.
TERM AMENDMENTS: TERMINATION
11.1 Term; Method of Termination. This Declaration shall be effective upon its Recordation and, as amended from time to time, shall continue in full force and effect for a term of 20 years from the date of its Recordation. Thereafter, this Declaration (as amended from time to time) shall be automatically extended for successive periods of 10 years each, unless there is an affirmative vote to terminate this Declaration by Voting Members representing 90% of the Class “A” Members, and the consent of the Class “B” Member, if such exists, within 6 months prior to the expiration of the initial term hereof or any 10-year extension. In addition, this Declaration may be terminated at any time if Voting Members representing 90% of the Class “A” Members, and the consent of the Class “B” Member, if such exists, vote in favor of termination at an election held for such purpose. If the necessary votes and consents are obtained, the Board shall Record a certificate of termination, duly executed by the president or vice president of the Association and attested to by the secretary of the Association. Upon the Recording of the certificate of termination, this Declaration shall have no further force and effect and the Association thereupon shall be dissolved in accordance with the terms of its Articles and By-Laws and the laws of the State of Arizona.
11.2. Amendments. Until the first sale of a Lot within the Covered Property to a Non-Developer Owner for use and occupancy as a Dwelling Unit, this Declaration may be amended by Recorded instrument duly executed by Declarant without the necessity of calling a meeting of Owners or obtaining the consent of Owners. In addition, so long as the Declarant owns any of the Covered Property for development, it may unilaterally amend this Declaration for any other purpose, provided the amendment has no material adverse effect upon any right or title of any Owner. The Declarant reserves the right to unilaterally amend this Declaration for the purpose of removing from the coverage of this Declaration, any portion of the Covered Property which is rezoned or is to be developed for nonresidential or commercial use. Any such property withdrawn shall be submitted to the Covenant to Share Costs. Such amendment shall not require the consent of any Person other than the Owner of the property to be withdrawn, if not the Declarant. If the property is Common Area, the Association shall consent to such withdrawal.
Thereafter, this Declaration may be amended (either during the
initial 20-year term or during any extension thereof pursuant to Section 11.1 above) by Recording a certificate of amendment, duly executed by the president or vice president of the Association, which certificate of amendment shall set
forth in full the text of the amendment adopted, and, except as provided in Section 11.3, shall certify that Voting Members representing at least 75% of
the Class “A” votes in the Association approved the amendment, and the Class “B” Member consented thereto, if such exists. So long as the Declarant owns any of the Covered Property, its consent shall be required for any amendment to this Declaration.
If an Owner consents to any amendment to this Declaration or the By-Laws, it will be conclusively presumed that such Owner has the authority to consent, and no contrary provision in any Mortgage or contract between the Owner and a third party will affect the validity of such amendment. Any amendment shall become effective upon recording in the Public Records, unless a later effective date is specified in the amendment. Any procedural challenge to an amendment must be made within six months of its recordation or such amendment shall be presumed to have been validly adopted. In no event shall a change of conditions or circumstances operate to amend any provisions of this Declaration.
A Tract Declaration may be amended at any time by a Recorded instrument (or by counterpart instruments) executed by Declarant and the Owners (other than Declarant, if Declarant is an Owner of any Lot(s) or Parcel(s) in the Covered Property) holding 75%, of the Class “A” votes attributable to all Lots and Parcels subject to the Tract Declaration.
11.3. Right of Amendment if Requested by Governmental Agency or Federally-Chartered Lending Institution. Anything in this Article to the contrary notwithstanding, Declarant reserves the right to amend this Declaration or a Tract Declaration as may be requested or required by the FHA, VA or any other Agency with whom Declarant elects to do business as a condition precedent to such Agency’s approval of this Declaration or an applicable Tract Declaration, or by any federally-chartered lending institution as a condition precedent to lending funds upon the security of any Lot or Parcel or purchasing loans secured thereby. Any such amendment shall be effected by Declarant Recording a certificate of amendment duly executed and acknowledged by Declarant specifying the Agency or the lending institution requesting the amendment and setting forth the requested or required amendment(s). Recordation of such a certificate shall be deemed conclusive proof of the Agency’s or institution’s request or requirement and such certificate, when Recorded, shall be binding upon all of the Covered Property and all persons having an interest therein. It is the desire of Declarant to retain control of the Association and the Association’s activities during the period of planning and development of the Covered Property. If any amendment requested or required pursuant to the provisions of this Section deletes, diminishes or alters such control, Declarant shall have the right to prepare, provide for and adopt as an amendment hereto, other and different control provisions which shall be binding upon the Covered Property and Owners without a vote of the Owners. Except as provided in this Section, Declarant shall not have any right to amend this Declaration or a Tract Declaration otherwise than in accordance with and Pursuant to the provisions of Section 11.2.
12.1. Easements of Encroachment. There shall be reciprocal appurtenant easements of encroachment, and for maintenance and use of any permitted encroachment, between each Lot and any adjacent Common Areas and between adjacent Lots due to the unintentional placement or settling or shifting of the improvements constructed, reconstructed, or altered thereon (in accordance with the terms of these restrictions) to a distance of not more than three feet, as measured from any point on the common boundary along a line perpendicular to such boundary. However, in no event shall an easement for encroachment exist if such encroachment occurred due to willful and knowing conduct on the part of, or with the knowledge and consent of, the Person claiming the benefit of such easement.
12.2. Easements for Utilities. Etc.
(a) There are hereby reserved to the Declarant, so long as the Declarant owns any property described on Exhibit “A” or “B” of this Declaration, the Association, and the designees of each (which may include, without limitation, any governmental or quasi-governmental entity and any utility company) perpetual non-exclusive easements upon, across, over, and under all of the Covered Property (but not through a structure) to the extent reasonably necessary for the purpose of monitoring, replacing, repairing, maintaining and operating cable television systems, master television antenna systems, and other devices for sending or receiving data and/or other electronic signals; security and similar systems; roads, walkways, pathways and trails; lakes, ponds, wetlands, and drainage systems; street lights and signage; and all utilities, including, but not limited to, water, sewers, telephone, gas, and electricity, and utility meters; and for the purpose of installing any of the foregoing on property which the Declarant or the Association owns or within easements designated for such purposes on recorded plats of the Covered Property.
Declarant specifically grants to the local water supplier, electric company, telephone company, and natural gas supplier easements across the Covered Property for ingress, egress, installation, reading, replacing, repairing, and maintaining utility lines, meters and boxes, as applicable.
(b) There is hereby reserved to the Declarant, so long as the Declarant owns any property described on Exhibit “A” or “B” of this Declaration, the non-exclusive right and power to grant such specific easements as may be necessary, in the sole discretion of Declarant, in connection with the orderly development of any property described on Exhibits “A” or “B.”
(c) Any damage to a Lot resulting from the exercise of the easements described in subsections (a) and (b) of this Section shall promptly be repaired by, and at the expense of, the Person exercising the easement. The exercise of these easements shall not extend to permitting entry into the
structures on any Lot, nor shall it unreasonably interfere with the use of any Lot and, except in an emergency, entry onto any Lot shall be made only after reasonable notice to the Owner or occupant.
12.3. Easements to Serve Other Property. The Declarant hereby reserves for itself and its duly authorized agents, representatives, and employees, successors, assigns, licensees, mortgagees, and the Joint Committee, an easement over the Common Areas for the purposes of enjoyment, use, access, and development of the property described in Exhibit “A,” whether or not such property is made subject to this Declaration. This easement includes, but is not limited to, a right of ingress and egress over the Common Areas for construction of roads and for connecting and installing utilities on such property. Declarant agrees that it and its successors or assigns shall be responsible for any damage caused to the Common Areas as a result of vehicular traffic connected with development of such property. Declarant further agrees that if the easement is exercised for permanent access to such property and such property or any portion thereof benefiting from such easement is not made subject to this Declaration, the Declarant, its successors or assigns shall enter into a reasonable agreement with the Association to share the cost of any maintenance which the Association provides to or along any roadway providing access to such property.
12.4. Bight of Entry. The Association shall have the right, but not the obligation, to enter upon any Lot for emergency, security, and safety reasons, to perform maintenance, and to inspect for the purpose of ensuring compliance with this Declaration, any supplementary – declaration, Tract Declaration, By-Laws, Guidelines, and Association Rules. Such right may be exercised by any member of the Board, the Association’s officers, agents, employees, and managers, the members of the Review Committees, and all policemen, firemen, ambulance personnel, and similar emergency personnel in the performance of their duties. The Owner or Occupant of a Lot or Parcel shall not be liable for personal injuries occurring during the entry unless such Owner is negligent in causing such injuries. Except in an emergency situation, entry shall only be during reasonable hours and after notice to the Owner. This right of entry shall include the right of the Association to enter upon any Lot to cure any condition which may increase the possibility of a fire or other hazard in the event an Owner fails or refuses to cure the condition within a reasonable time after requested by the Board, but shall not authorize entry into any single family detached dwelling without permission of the Owner, except by emergency personnel acting in their official capacities.
EMINENT DOMAIN AND INSURANCE
13.1. Eminent Domain. The term “Taking” as used in this Section shall mean condemnation by eminent domain or sale under threat of
condemnation. In the event of a threatened Taking of all or any portion of
the Common Areas, the owners hereby appoint the Board and such Persons as the Board may delegate to represent all of the Owners in connection with the Taking. The Board shall act, in its sole discretion, with respect to any awards made or to be made in connection with the Taking and shall be entitled to make a voluntary sale to the condemnor in lieu of engaging in a
condemnation action. Any awards received on account of the Taking shall be paid to the Association. In the event of a total Taking, the Board may, in its sole discretion, retain any award in the general funds of the Association or distribute pro rata all or a portion thereof to the Owners (taking into account a reduction in the distribution to those Owners paying reduced amounts for Assessments pursuant thereto), and all holders of liens and encumbrances, as their interest may appear of Record.
13.2. Association Insurance.
(a) Required Coverages. The Association, acting through its Board
or its duly authorized agent, shall obtain and continue in effect the following types of insurance, if reasonably available, or if not reasonably available, the most nearly equivalent coverages as are reasonably available:
(i) Blanket property insurance covering “risks of direct physical loss” on a “special form” basis (or comparable coverage by whatever name denominated) for all insurable improvements on the Common Areas, if any, and on other portions of the Area of Common Responsibility to the extent that it has assumed responsibility for maintenance, repair and/or replacement in the event of a casualty. If such coverage is not generally available at reasonable cost, then “broad form” coverage may be substituted. The Association shall have the authority to and interest in insuring any property for which it has maintenance or repair responsibility, regardless of ownership. All property insurance policies obtained by the Association shall have policy limits sufficient to cover the full replacement cost of the insured improvements;
(ii) Commercial general liability insurance on the Area of Common Responsibility, insuring the Association and its Members for damage or injury caused by the negligence of the Association or any of its Members,
employees, agents, or contractors while acting on its behalf. If generally
available at reasonable cost, the commercial general liability coverage (including primary and any umbrella coverage) shall have a limit of at least $1,000,000.00 per occurrence with respect to bodily injury, personal injury. and property damage; provided, should additional coverage and higher limits be available at reasonable cost which a reasonably prudent person would obtain, the Association shall obtain such additional coverages or limits;
(iii) Workers compensation insurance and employers liability insurance, if and to the extent required by law;
(iv) Directors and officers liability coverage;
(v) Fidelity insurance covering all Persons responsible for handling Association funds in an amount determined in the Board’s best business judgment but not less than an amount equal to one-sixth of the Annual Base Assessments on all Lots plus reserves on hand. Fidelity insurance policies shall contain a waiver of all defenses based upon the exclusion of Persons serving without compensation; and
(vi) Such additional insurance as the Board, in its best
business judgment, determines advisable, which may include, without limitation, flood insurance, boiler and machinery insurance, and building ordinance coverage.
In addition, the Association may obtain and maintain property insurance on the insurable improvements within any Neighborhood in such amounts and with such coverages as the Owners in such Neighborhood may agree
upon pursuant to Section 5.6. Any such policies shall provide for a
certificate of insurance to be furnished to the Neighborhood Association or Neighborhood Committee, as applicable, and to the Owner of each Lot insured.
Premiums for all insurance on the Area of Common Responsibility shall be general common expenses and shall be included in the Annual Assessment, except that (i) premiums for property insurance obtained on behalf of a Neighborhood shall be charged to the Owners of Lots within the benefited Neighborhood as a Neighborhood Assessment; and (ii) premiums for insurance on Limited Common Areas may be included in the Neighborhood Assessment of the Neighborhood(s) benefited unless the Board of Directors reasonably determines that other treatment of the premiums is more appropriate.
(b) Policy Requirements. The Association shall arrange for an
annual review of the sufficiency of insurance coverage by one or more qualified Persons, at least one of whom must be familiar with insurable replacement costs in the Goodyear, Arizona area.
All Association policies shall provide for a certificate of insurance to be furnished to each Member insured and to the Association.
The policies may contain a reasonable deductible and the amount thereof shall not be subtracted from the face amount of the policy in determining whether the policy limits satisfy the requirements of
Section 13.2(a). In the event of an insured loss, the deductible shall be
treated as a Association expense or a Neighborhood Expense in the same manner as the premiums for the applicable insurance coverage. However, if the Board reasonably determines, after notice and an opportunity to be heard in accordance with Section 10.3, that the loss is the result of the negligence or willful misconduct of one or more Owners, their guests, invitees, or lessees, then the Board may specifically assess the full amount of such deductible against such Owner(s) and their Lots pursuant to Section 7.13.
All insurance coverage obtained by the Board shall:
(i) be written with a company authorized to do business in the State of Arizona which satisfies the requirements of the Agencies;
(ii) be written in the name of the Association as trustee for the benefited parties. Policies on the Common Areas shall be for the benefit of the Association and its Members. Policies secured on behalf of a Neighborhood shall be for the benefit of the Owners of Lots within the Neighborhood and their mortgagees, as their interests may appear;
(iii) not be brought into contribution with insurance purchased by Owners, Occupants, or their mortgagees individually;
(iv) contain an inflation guard endorsement; and
(v) include an agreed amount endorsement, if the policy contains a co-insurance clause.
In addition, the Board shall use reasonable efforts to secure insurance policies which list the Owners as additional insureds and provide:
(i) a waiver of subrogation as to any claims against the Association’s Board, officers, employees, and its manager, the Owners and their tenants, servants, agents, and guests;
(ii) a waiver of the insurer’s rights to repair and reconstruct instead of paying cash;
(iii) an endorsement precluding cancellation,
invalidation, suspension, or non-renewal by the insurer on account of any one or more individual Owners, or on account of any curable defect or violation without prior written demand to the Association to cure the defect or violation and allowance of a reasonable time to cure;
(iv) an endorsement excluding Owners’ individual policies from consideration under any “other insurance” clause;
(v) an endorsement requiring at least 30 days’ prior written notice to the Association of any cancellation, substantial modification, or non-renewal;
(vi) a cross liability provision; and
(vii) a provision vesting in the Board exclusive authority to adjust losses; provided, however, no mortgagee having an interest in such losses may be prohibited from participating in the settlement negotiations, if any, related to the loss.
(c) Damage and Destruction. Immediately after damage or destruction to all or any part of the Covered Property covered by insurance written in the name of the Association, the Board or its duly authorized agent shall file and adjust all insurance claims and obtain reliable and detailed estimates of the cost of repair or reconstruction. Repair or reconstruction, as used in this paragraph, means repairing or restoring the property to substantially the condition in which it existed prior to the damage, allowing for changes or improvements necessitated by changes in applicable building codes.
Any damage to or destruction of the Common Areas shall be repaired or reconstructed unless the Voting Members representing at least 75% of the total Class “A” votes in the Association, and the Class “B” Member, if any, decide within 60 days after the loss not to repair or reconstruct.
If either the insurance proceeds or reliable and detailed estimates of the cost of repair or reconstruction, or both, are not available to the Association within such 60-day period, then the period shall be extended until such funds or information are available. However, such extension shall not exceed 60 additional days. No mortgagee shall have the right to participate in the determination of whether the damage or destruction to the Common Areas shall be repaired or reconstructed.
If determined in the manner described above that the damage or destruction to the Common Areas shall not be repaired or reconstructed and no alternative improvements are authorized, the affected property shall be cleared of all debris and ruins and thereafter shall be maintained by the Association in a neat and attractive, landscaped condition consistent with the Community-Wide Standard.
Any insurance proceeds remaining after paying the costs of repairor reconstruction, or after such settlement as is necessary and appropriate, shall be retained by and for the benefit of the Association or the Neighborhood, as appropriate, and placed in a capital improvements account. This is a covenant for the benefit of mortgagees and may be enforced by the mortgagee of any affected Lot.
If insurance proceeds are insufficient to cover the costs of repair or reconstruction, the Board of Directors may, without a vote of the Voting Members or Owners, levy Special Assessments to cover the shortfall against those Owners responsible for the premiums for the applicable insurance coverage under Section 13.2(a).
13.3. Owners’ Insurance. By virtue of taking title to a Lot, each Owner covenants and agrees with all other Owners and with the Association to carry property insurance for the full replacement cost of all insurable improvements on his or her Lot, less a reasonable deductible, unless either the Neighborhood Association (if any) for the Neighborhood in which the Lot is located or the Association carries such insurance (which they may, but are not obligated to do hereunder). If the Association assumes responsibility for obtaining any insurance coverage on behalf of Owners, the premiums for such insurance shall be levied as a Maintenance Assessment against the benefited Lot and the Owner thereof pursuant to Section 7.13.
Each Owner further covenants and agrees that in the event of damage to or destruction of structures on or comprising his Lot, the Owner shall proceed promptly to repair or to reconstruct in a manner consistent with the original construction or such other plans and specifications as are approved in accordance with Article 4. Alternatively, the Owner shall clear the Lot of all debris and ruins and maintain the Lot in a neat and attractive, landscaped condition consistent with the Community-Wide Standard. The Owner shall pay any costs which are not covered by insurance proceeds.
The requirements of this Section shall apply to any Neighborhood Association responsible for common property within the Neighborhood in the same manner as if the Neighborhood Association were an Owner and the common property were a Lot. Additional recorded covenants or a Tract Declaration applicable to any Neighborhood may establish more stringent requirements for
insurance and more stringent standards for rebuilding or reconstructing structures on the Lots within such Neighborhood and for clearing and maintaining the Lots in the event the structures are not rebuilt or reconstructed.
14.1. Enforcement Rights. Each Owner (including Declarant, so long as Declarant is an Owner) shall have the right and authority, but not the obligation, to enforce the provisions of this Declaration.
14.2. Interpretation of the Covenants. Except for judicial construction and as hereinafter provided, the Association, by its Board, shall have the exclusive right to construe and interpret the provisions of this Declaration and of any Tract Declaration. In the absence of any adjudication to the contrary by a court of competent jurisdiction, the Association’s construction or interpretation of the provisions hereof or of any Tract Declaration shall be final, conclusive and binding as to all Persons and property benefited or bound by this Declaration or of the applicable Tract Declaration.
14.3. Severability. Any determination by any court of competent jurisdiction that any provision of this Declaration is invalid or unenforceable shall not affect the validity of enforceability of any of the other provisions hereof.
14.4. Rule Against Perpetuities. If any of the interests, privileges, covenants or rights created by this Declaration shall be unlawful, void or voidable for violation of the rule against perpetuities or any related rule, then such provision shall continue until 21 years after the death of the last survivor of the now living descendants of the President of the United States in office on the date this Declaration is Recorded.
14.5. Change of Circumstances. Except as otherwise expressly provided in this Declaration, no change of conditions or circumstances shall operate to extinguish, terminate or modify any of the provisions of this Declaration.
14.6. Declarant’s Disclaimer of Representations. Notwithstanding anything to the contrary herein, Declarant makes no warranties or representations whatsoever that the plans presently envisioned for the complete development of Estrella can or will be carried out, or that any real property now owned or hereafter acquired by it is or will be subjected to this Declaration, or that any such real property (whether or not it has been subjected to this Declaration) is or will be committed to or developed for a particular (or any) use, or that if such real property is once used for a particular use, such use will continue in effect. While Declarant has no reason to believe that any of the restrictive covenants contained in this Declaration are or may be invalid or unenforceable for any reason or to any extent, Declarant makes no warranty or representation as to the present or future validity or enforceability of any such restrictive covenant. Any Owner
acquiring a Lot or Parcel in reliance on one or more of such restrictive covenants shall assume all risks of the validity and enforceability thereof and by accepting a deed to the Lot or Parcel agrees to hold Declarant harmless therefrom.
14.7. Successors and Assigns. Any reference in this Declaration to Declarant shall include any successors or assignees of Declarant’s rights and powers hereunder. Any such assignment shall be evidenced by a Recorded instrument executed by Declarant and its successor or assignee.
14.8. Winder and Number. Wherever the context of this Declaration so requires, words used in the masculine gender shall include the feminine and neuter ganders; words used in the neuter gender shall include the masculine and feminine genders. Words in the singular shall include the plural; and words in the plural shall include the singular.
14.9. Captions. All captions, titles or headings of the Articles and Sections in this Declaration are for the purpose of reference and convenience only and are not to be deemed to limit, modify or otherwise affect any of the provisions hereof or to be used in determining the intent or context thereof.
14.10. Notices. If notice of any action or proposed action by the
Board or any committee or of any meeting is required by applicable law, this Declaration or any resolution of the Board to be given to any Owner or Occupant then, unless otherwise specified herein or in the resolution of the Board, such notice requirement shall be deemed satisfied if notice of such action or meeting is published once in any newspaper in general circulation within the City of Goodyear, Arizona. This Section shall not be construed to require that any notice be given if not otherwise required and shall not prohibit satisfaction of any notice requirement in any other manner.
14.11. FHA/VA Approval. If this Declaration has been initially
approved by the FHA or the VA in connection with any loan programs made available by FHA or VA in regard to the Covered Property, then for so long as there is a Class “B” Member of the Association, the following actions will require the prior approval of the FHA or the VA, as applicable, unless the need for such approval has been waived by FHA or VA: dedication of Common Areas (except where such dedication or change is required as of the date hereof by the County); and amendments of this Declaration.
14.12. Water Rights. The Association shall have the right to receive all water which any Lot or Parcel, or the owner thereof, is entitled to receive from any irrigation district serving such Lot or Parcel. The Association shall use such water for maintaining the Common Areas and for other appropriate uses for the benefit of the Owners and Occupants generally. Each Owner shall execute any assignments or instructions as the Association or any irrigation district may request in order to maintain, increase or obtain allocations of water to which such Owner’s Lot or Parcel is entitled and to enable the Association to receive all water which is at any time allocated to the Lot or Parcel. The right to receive such water from an irrigation district is and shall remain appurtenant to the Lot or Parcel. Declarant, for each Lot or Parcel and any portion thereof, covenants and agrees and each
Owner by acceptance of a deed therefor is deemed to covenant and agree that the irrigation district shall have no obligation or duty to construct or in any way provide ditches for water delivery, regardless of the then current use of the Lot or Parcel. The Association shall pay any and all assessments and charges made by the irrigation district for the delivery and use of water to which the Lot or Parcel is entitled when used by the Association for maintaining the Common Areas and for other appropriate uses for the benefit of the Owners and Occupants generally. Notwithstanding the foregoing, any Owner has the right to require direct delivery of water to which his, her or its
land is entitled from any such irrigation district. In the event an Owner
requires direct delivery, such Owner, and not the Association, shall bear any and all expenses associated with direct delivery, including, but not limited to, the construction and installation of a delivery system and all future assessments and charges for the delivery and use by such Owner of water to which his, her or its land is entitled.
14.13. Party Walls. The rights and duties of Owners of contiguous Lots or Parcels which have shared walls or fences (“Party Walls”) shall be as follows:
14.13.1 each Owner shall have the right to use the Party
Wall, provided that such use does not interfere with the other Owner’s use and enjoyment thereof.
14.13.2 if a Party Wall is damaged or destroyed through the
willful or negligent act of an Owner or the Owner’s Occupants, agents, guests or family, the Owner or Occupant, as the case may be, shall be obligated to rebuild and repair the Party Wall at the Owner’s sole expense (provided that this shall not bar such Owner from recovering, or seeking to recover, all or any part of such expense from any Occupant, agent, guest or other person who otherwise may be liable to such Owner). Any dispute over an Owner’s liability shall be resolved as provided in Subsection 14.13.4 below;
14.13.3 in the event any Party Wall is damaged or destroyed
other than by the willful or negligent act of an adjoining Owner or the Owner’s Occupants, agents, guests or family, or deteriorates from ordinary wear and tear, it shall be the joint obligation of all Owners’ whose Lots or Parcels adjoin the damaged or destroyed portion of such Party Wall to immediately rebuild and repair such Party Wall, such expenses to be ratably divided among such Owners on the basis of the amount of frontage of their respective Lots or Parcels on the damaged or destroyed Party Wall;
14.13.4 in the event of a dispute between Owners with respect to a Party Wall or the sharing of the cost thereof, such members shall submit the dispute to the Review Committee, whose decision shall be binding unless appealed to the Board, in which event the Board’s decision shall be binding and final. Notwithstanding any such decision, no Owner is prohibited from seeking indemnity from the party causing the damage;
14.13.5 notwithstanding the foregoing and unless otherwise indicated in a Tract Declaration, or unless otherwise expressly agreed in writing by the Association, in the case of walls or fences: (i) between Common Areas and Lots or Parcels; or (ii) situated on Common Areas within or adjacent
to a Lot or Parcel, the Owners and Occupants of such Lots or Parcels shall be responsible, at their expense, for all maintenance, repair, painting and replacement thereof. Further, unless otherwise approved in writing by the Board, any wall situated generally between a Lot or Parcel and Common Areas shall be situated entirely upon such Lot or Parcel (and not upon the Common Areas) but shall be situated immediately adjacent to such Lot’s or Parcel’s boundary line with the Common Areas; and
14.13.6 this Section 14.13 does not and is not intended to
control or relate to Party Walls between Condominium Units.
14.14. Litigation. Except as provided below, no judicial or
administrative proceeding shall be commenced or prosecuted by the Association unless approved by a vote of 75% of the Voting Members. A Voting Member representing Lots owned by Persons other than himself shall not vote in favor of bringing or prosecuting any such proceeding unless authorized to do so by a vote of Owners holding 75% of the total votes attributable to Lots in the Neighborhood represented by’ the Voting Member. This Section shall not apply, however, to (a) actions brought by the Association to enforce the provisions of this Declaration (including, without limitation, the foreclosure of liens);
(b) the imposition and collection of assessments as provided in Article 7;
(c) proceedings involving challenges to ad valorem taxation; or
(d) counterclaims brought by the Association in proceedings instituted against it. This Section shall not be amended unless such amendment is approved by the percentage of votes, and pursuant to the same procedures, necessary to institute proceedings as provided above. This Section shall apply in addition to the provisions of Article 17, if applicable.
Any or all of the special rights and obligations of the Declarant set forth in this Declaration, any supplementary declaration or Tract Declaration, or the By-Laws may be transferred in whole or in part to other Persons, provided that the transfer shall not reduce an obligation nor enlarge a right beyond that which the Declarant has under this Declaration or the By-Laws. No such transfer or assignment shall be effective unless it is in a written instrument signed by the Declarant and duly Recorded.
The Declarant and Developer Owners authorized by Declarant may maintain and carry on upon portions of the Common Areas such facilities and activities as, in the sole opinion of the Declarant, may be reasonably required, convenient, or incidental to the construction or sale of Lots, including, but not limited to, business offices, signs, model Lots, and sales offices. The Declarant and authorized Developer Owners shall have easements for access to and use of such facilities.
The Declarant and its employees, agents and designees shall also have a right and easement over and upon all of the Common Areas for the purpose of making, constructing and installing such improvements to the Common Areas as it deems appropriate in its sole discretion.
No Person shall record any declaration of covenants, conditions and restrictions, or declaration of condominium or similar instrument affecting any portion of the Covered Property without Declarant’s review and written consent. Any attempted recordation without such consent shall result in such instrument being void and of no force and effect unless subsequently approved by written consent signed by the Declarant and Recorded.
Notwithstanding any contrary provision of this Declaration, no amendment to or modification of any Association Rules or Guidelines made after termination of the Class “B” Membership shall be effective without prior notice to and the written approval of Declarant so long as the Declarant owns any portion of the Covered Property primarily for development and sale.
This Article may not be amended without the written consent of the Declarant. The rights contained in this Article shall terminate upon the earlier of (a) 40 years from the date this Declaration is recorded,. or (b) upon recording by Declarant of a written statement that all sales activity has ceased.
DISPUTE RESOLUTION AND LIMITATION ON LITIGATION
16.1. Agreement to Avoid Litigation. The Declarant, the Joint Committee, the Association, its officers, directors, and committee members, all Persons subject to this Declaration, any Developer Owner, and any Person not otherwise subject to this Declaration who agrees to submit to this Article (collectively, “Bound Parties”) agree to encourage the amicable resolution of disputes involving the Covered Property, without the emotional and financial costs of litigation. Accordingly, each Bound Party covenants and agrees that those claims, grievances or disputes described in Sections 16.2 (“Claims”) shall be resolved using the procedures set forth in Section 16.3 in lieu of filing suit in any court.
16.2. Claims.. Unless specifically exempted below, all claims, grievances or disputes arising out of or relating to the interpretation, application or enforcement of this Declaration, any supplementary declaration, Tract Declaration, By-Laws, Guidelines, and Association Rules, or the rights, obligations and duties of any Bound Party under such or relating to the design or construction of improvements on the Covered Property shall be subject to the provisions of Section 16.3.
Notwithstanding the above, unless all parties thereto otherwise agree, the following shall not be Claims and shall not be subject to the provisions of Section 16.3:
(a) any suit by the Association against any Bound Party to enforce the provisions of Article 7 (Assessments);
(b) any suit by the Association to obtain a temporary restraining order (or equivalent emergency equitable relief) and such other ancillary relief as the court may deem necessary in order to maintain the status quo and
preserve the Association’s ability to enforce the provisions of Article 4 (Architectural Control) and use restrictions and rules contained in any supplementary declaration or Tract Declaration;
(c) any suit between Owners, which does not include Declarant or the Association as a party, if such suit asserts a Claim which would constitute a cause of action independent of this Declaration, any supplementary declaration, Tract Declaration, By-Laws, Guidelines, and Association Rules;
(d) any suit in which any indispensable party is not a Bound Parry; and
(e) any suit which otherwise would be barred by any applicable statute of limitations.
With the consent of all parties thereto, any of the above may be submitted to the alternative dispute resolution procedures set forth in Section 16.3.
16.3. Mandatory Procedures.
(a) Notice. Any Bound Party having a Claim (“Claimant”) against any other Bound Party (“Respondent”) (collectively, the “Parties”) shall notify each Respondent in writing (the “Notice”), stating plainly and concisely:
1. the nature of the Claim, including the Persons involved and Respondent’s role in the Claim;
2. the legal basis of the Claim (i.e., the specific authority out of which the Claim arises);
3. Claimant’s proposed remedy; and
4. that Claimant will meet with Respondent to discuss in good faith ways to resolve the Claim.
(b) Negotiation and Mediation.
1. The Parties shall make every reasonable effort to meet in person and confer for the purpose of resolving the Claim by good faith negotiation. If requested in writing, accompanied by a copy of the Notice, the Board may appoint a representative to assist the Parties in resolving the dispute by negotiation.
2. If the Parties do not resolve the Claim within 30 days of the date of the Notice (or within such other period as may be agreed upon by the Parties) (“Termination of Negotiations”), Claimant shall have 30 additional days to submit the Claim to mediation under the auspices of an independent agency providing dispute resolution services in the Goodyear, Arizona area with whom the Association may enter into an ongoing relationship for providing mediation services.
3. If Claimant does not submit the Claim to mediation within 30 days after Termination of Negotiations, or does not appear for the mediation, Claimant shall be deemed to have waived the Claim, and Respondent shall be released and discharged from any and all liability to Claimant on account of such Claim; provided, nothing herein shall release or discharge Respondent from any liability to any Person other than the Claimant.
4. Any settlement of the Claim through mediation shall be documented in writing by the mediator. If the Parties do not settle the Claim within 30 days after submission of the matter to the mediation process, or within such time as determined by the mediator, the mediator shall issue a notice of termination of the mediation proceedings (“Termination of Mediation”). The Termination of Mediation notice shall set forth that the Parties are at an impasse and the date that mediation was terminated.
5. Within five days of the Termination of Mediation, the Claimant shall make a final written settlement demand (“Settlement Demand”) to the Respondent and the Respondent shall make a final written settlement offer (“Settlement Offer”) to the Claimant. If the Claimant fails to make a Settlement Demand, Claimant’s original Notice shall constitute the Settlement Demand. If the Respondent fails to make a Settlement Offer, Respondent shall be deemed to have made a “zero” or “take nothing” Settlement Offer.
(c) Final and Binding Arbitration.
1. If the Parties do not agree in writing to a settlement of the Claim within 15 days of the Termination of Mediation, the Claimant shall have 15 additional days to submit the Claim to arbitration in accordance with the Rules of Arbitration contained in Exhibit “D” or such rules as may be
required by the agency providing the arbitrator. If not timely submitted to
arbitration or if the Claimant fails to appear for the arbitration proceeding, the Claim shall be deemed abandoned, and Respondent shall be released and discharged from any and all liability to Claimant arising out of such Claim; provided, nothing herein shall release or discharge Respondent from any liability to Persons other than Claimant.
2. This subsection (c) is an agreement to arbitrate and is specifically enforceable under the applicable arbitration laws of the State of Arizona. The arbitration award (the “Award”) shall be final and binding, and judgment may be entered upon it in any court of competent jurisdiction to the fullest extent permitted under the laws of the State of Arizona.
16.4. Allocation of Costs of Resolving Claims.
(a) Subject to Section 16.4(b), each Party shall bear its own costs, including any attorneys fees incurred, and each Party shall share equally all charges rendered by the mediator(s) and all filing fees and costs of conducting the arbitration proceeding (“Post Mediation Costs”).
(b) Any Award which is equal to or more favorable to Claimant than Claimant’s Settlement Demand shall add Claimant’s Post Mediation Costs to the Award, such costs to be borne equally by all Respondents. Any Award which is equal to or less favorable to Claimant than any Respondent’s Settlement Offer shall award to such Respondent its Post Mediation Costs.
16.5. Enforcement of Resolution. After resolution of any Claim, if any Party fails to abide by the terms of any agreement or Award, then any other Party may file suit or initiate administrative proceedings to enforce such agreement or Award without the need to again comply with the procedures set forth in Section 16.3. In such event, the Party taking action to enforce the agreement or Award shall be entitled to recover from the non-complying Party (or if more than one non-complying Party, from all such Parties pro rata) all costs incurred in enforcing such agreement or Award, including, without limitation, attorneys’ fees and court costs.
IN WITNESS WHEREOF, the undersigned Declarant has executed this Declaration the date and year first written above.
DECLARANT: Sunchase Estrella Limited Partnership, a Delaware
Mari P. Berry, Vice President
Sterling Pacific Estrella, Inc., general partner
of Estrella Sun, general partner
STATE OF ARIZONA )
COUNTY of MARICOPA )
On this 2„0 day of ,a4L , 1971 ., before me, the
undersigned officer, personally appeiied Mari P. Berry, who acknowledged herself to be the Vice President of Sterling Pacific Estrella, Inc., a California corporation, and that such capacity, being authorized so to do, executed the foregoing instrument .for the purposes therein contained by signing the name of the corporation.
..IN WITNESS WHEREOF, I have hereunto got my hand and official seal.
CONSENT AND JOINDER OF ESTRELLA COMMUNITY ASSOCIATION
ESTRELLA COMMUNITY ASSOCIATION, INC., an Arizona non-profit corporation, hereby consents to and joins in this Amended and Restated Declaration of Covenants, Conditions, Restrictions and Easements for Estrella and agrees as follows:
1. Estrella Community Association is the “Association” as that term is defined in the Declaration;
2. Estrella Community Association consents to and joins in this Declaration for the purpose of agreeing to the reconfiguration of the Common Areas, removal of any nonresidential property previously submitted to the Declaration, and the provisions set forth herein for governance and administration of the Association; and
3. Estrella Community Association consents to and joins in this Declaration for the purpose of agreeing to participate as a part of the Joint Committee and perform its obligations as contained in the Joint Committee By-Laws and the Covenant to Share Costs.
STATE OF ARIZONA )
COUNTY of MARICOPA )
On this day of
19 /ti, before me, the undersigned officer, personally appeared Carey A. Mark, acknowledged to be the President of the Estrella Community Association, an Arizona nonprofit corporation, and that such capacity, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing the name of the corporation.
IN-WITNESS WHEREOF, I have hereunto got my hand and official seal.
Area Covered by Master Development Plan
Legal description of “Covered Property”
and Designation of Neighborhoods
The following real property located in Maricopa County, Arizona and which is legally described as follows:
The East Half of Section 1, Township 1 South, Range 2 West of the Gila and Salt River Base and Meridan; the Southwest quarter of Section 10, Township 1 South, Range 2 West of the Gila and Salt River Base and Meridan; the North half of Section 12, Township 1 South, Range 2 West of the Gila and Salt River Base and Meridan; the North half of Section 15, Township 1 South, Range 2 West of the Gila and Salt River Base and Meridan, together with any portion of the following described real property, which may be included within the foregoing real property, that is not included within the foregoing real property:
(1) The “Common Areas” legally described on Exhibit “A-1” attached hereto and incorporated herein by this reference;
(2) The following subdivided Parcels, legally described as follows:
(a) Estrella Parcel 34, according to Book 329 of Maps, Page 34, records of Maricopa County, Arizona.
(b) Estrella Parcel 8, according to Book 318 of Maps, Page 39, records of Maricopa County, Arizona;
(c) Estrella Parcel 9, according to Book 318 of Maps, Page 40, records of Maricopa County, Arizona;
(d) Estrella Parcel 57 Amended, according to Book 329 of Maps, Page 12, records of Maricopa County, Arizona;
(e) Estrella Parcel 60, according to Book 321 of Maps, Page 30 and Affidavit of Correction recorded in Instrument No. 89-336248, records of Maricopa County, Arizona;
(f) Estrella Parcel 58, according to Book 321 of Maps, Page 31; and Affidavit of Correction recorded in Instrument No. 89-303317 records of Maricopa County, Arizona;
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(g) Estrella Parcel 51, according to Book 325 of Maps, Page 41; and Affidavit of Correction recorded in Instrument No. 90-387749 records of Maricopa County, Arizona;
(h) Estrella Parcel 55, according to Book 325 of Maps, Page 42; and Affidavit of Correction recorded in Instrument No. 89-475003 records of Maricopa County, Arizona;
(i) Estrella Parcel 56, according to Book 329 of Maps, Page 33 records of Maricopa County; and
(j) A replat of Lots 5, 7 through 16, 23, 24, 25, 28, 29, Tract “E” and Tract “F” of Estrella Parcel 51, according to Book 330 of Maps, page 47 and Affidavit of Correction recorded in Instrument No. 90-387749 records of Maricopa County, Arizona.
Designation of Neighborhood:
The foregoing real property shall constitute one “Neighborhood”, as defined in Section 1.43 of the Amended and Restated Declaration of Covenants, Conditions, Restrictions and Easements for Estrella until such time as additional Neighborhoods are designated under the provisions of Section 5.6 of the Amended and Restated Declaration of Covenants, Conditions, Restrictions and Easements for Estrella.
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CABLE WIRING STANDARDS
RESIDENTIAL PREWIRE MATERIALS
1. RG-6 Cable (901 Braid) – Plain or Plenum Fire Resistant if required by local authority.
2. Any approved metal mud ring.
omer= from electric meter outside location to living room outlet.
2. All additional outlets originate from the homerun location in living room. NO looped outlets are oerm4rfed. If ‘-her. are .E.Fee cutlets 4r. a home there should be three tails behind the living room mud
3. All tails behind mud rings should have a minimum of 18″ excess coiled and accessible in wall.
4. Any approved wallp/ate adaptable to RG-6 cable is acceptable – color consistency with other utility plates is desirable.
1. Do not use stapling devices on or around cable lines.
2. Please use nail guards.
3. Do not pull runs and “Burn” or scrape cable.
4. Do not attempt to repair any cable i.e., mid-run splices, etc.
5. Please sleeve fire-wall penetrations.
6. Suggest a maximum of four outlets per residence.
7. Do not use splitting devices.
8. Do not make 90 degree bends in cable.
Rules of Arbitration
1. Claimant shall submit a Claim to arbitration under these Rules by giving written notice to all other Parties stating plainly and concisely the nature of the Claim, the remedy sought and Claimant’s submission of the Claim to arbitration (“Arbitration Notice”).
2. The Parties shall select arbitrators (“Party Appointed Arbitrators”) as follows: all the Claimants shall agree upon one (1) Party Appointed Arbitrator, and all the Respondents shall agree upon one (1) Party Appointed Arbitrator. The Party Appointed Arbitrators shall, by agreement, select one neutral arbitrator (“Neutral”) so that the total arbitration panel (“Panel”) has three (3) arbitrators.
3. If the Panel is not selected under Rule 2 within 45 days from the date of the Arbitration Notice, any party may. notify the nearest chapter of The Community Associations Institute, for any dispute arising under the Governing Documents, or the American Arbitration Association, or such other independent body providing arbitration services, for any dispute relating to the design or construction of improvements on the Covered Property, which shall appoint one Neutral (“Appointed Neutral”), notifying the Appointed Neutral and all Parties in writing of such appointment. The Appointed Neutral shall thereafter be the sole arbitrator, and any Party Appointed Arbitrators or their designees shall have no further duties involving the arbitration proceedings.
4. No person may serve as a Neutral in any arbitration in which that person has any financial or personal interest in the result of the arbitration. Any person designated as a Neutral or Appointed Neutral shall immediately disclose in writing to all Parties any circumstance likely to affect impartiality, including any bias or financial or personal interest in
the outcome of the arbitration (“Bias Disclosure”). If any Party objects to
the service of any Neutral or Appointed Neutral after receipt of that Neutral’s Bias Disclosure, such Neutral or Appointed Neutral shall be replaced in the same manner in which that Neutral or Appointed Neutral was selected.
5. The Appointed Neutral or Neutral, as the case may be (“Arbitrator”) shall fix the date, time and place for the hearing. The place of the hearing shall be within the Covered Property unless otherwise agreed by
the Parties. In fixing the date of the hearing, or in continuing a hearing,
the Arbitrator shall take into consideration the amount of time reasonably required to determine Claimant’s damages accurately.
6. Any Party may be represented by an attorney or other authorized representative throughout the arbitration proceedings. In the event the Respondent fails to participate in the arbitration proceeding, the Arbitrator may not enter an Award by default, but shall hear Claimant’s case and decide accordingly.
7. All persons who, in the judgment of the Arbitrator, have a direct interest in the arbitration are entitled to attend hearings. The Arbitrator shall determine any relevant legal issues, including whether all indispensable parties are Bound Parties or whether the claim is barred by the statute of limitations.
8. There shall be no stenographic record of the proceedings.
9. The hearing shall be conducted in whatever manner will, in the Arbitrator’s judgment, most fairly and expeditiously permit the full presentation of the evidence and arguments of the Parties. The Arbitrator may issue such orders as it deems necessary to safeguard rights of the Parties in the dispute without prejudice to the rights of the Parties or the final determination of the dispute.
10. If the Arbitrator decides that it has insufficient expertise to determine a relevant issue raised during arbitration, the Arbitrator may retain the services of an independent expert who will assist the Arbitrator in making the necessary determination. The scope of such professional’s assistance shall be determined by the Arbitrator in the Arbitrator’s discretion. Such independent professional must not have any bias or financial or personal interest in the outcome of the arbitration, and shall immediately notify the Parties of any such bias or interest by delivering a Bias Disclosure to the Parties. If any Party objects to the service of any professional after receipt of a Bias Disclosure, such professional shall be replaced by another independent licensed professional selected by the Arbitrator.
11. No formal discovery shall be conducted in the absence of express written agreement among all the Parties. The only evidence to be presented at the hearing shall be that which is disclosed to all Parties at least 30 days prior to the hearing; provided, however, no Party shall deliberately withhold or refuse to disclose any evidence which is relevant and material to the Claim, and is not otherwise privileged. The Parties may offer such evidence as is relevant and material to the Claim, and shall produce such additional evidence as the Arbitrator may deem necessary to an understanding and determination of the Claim. The Arbitrator shall be the sole judge of the relevance and materiality of any evidence offered, and conformity to the legal rules of evidence shall not be necessary. The Arbitrator shall be authorized, but not required, to administer oaths to witnesses.
12. The Arbitrator shall declare the hearings closed when satisfied the record is complete.
13. There will be no posthearing briefs.
14. The Award shall be rendered immediately following the close of the hearing, if possible, and no later than 14 days from the close of the hearing, unless otherwise agreed by the Parties. The Award shall be in writing, shall be signed by the Arbitrator and acknowledged before a notary
public. If the Arbitrator believes an opinion is necessary, it shall be in summary form.
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15. If there is more than one arbitrator, all decisions of the Panel and the Award shall be by majority vote.
16. Each Party agrees to accept as legal delivery of the Award the deposit of a true copy in the mail addressed to that Party or its attorney at the address communicated to the Arbitrator at the hearing.
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Commercial Property Withdrawn from the Covered Property
Any and all Parcels or real property that are contained or located within the Estrella Master Development Plan that are presently zoned or that may be zoned for commercial uses in the future.