Villages Community CCR’
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AFTER RECORDING RETURN TO:
Sunchase Estrella
6001 N. 24th Street Phoenix, Arizona 85016 Attn: Ms. Cindy Kruh
O F F ICIAL R E COR DS O F
MARICOPA COUNTY RECORDER H EL EN PURCELL
97-0584915 08/25/97 04:5
R ICKRO 1 or •
DECLARATION OF PROTECTIVE COVENANTS AND RESTRICTlONS
FOR THE VILLAGES AT ESTRELLA MOUNTAIN RANCH
HYATT & STUBBLEFIELD, P.C.
Attorneys and Counselors
1200 Peachtree Center South Tower 225 Peach tree Street, N.E. Atlanta, Georgia 30303
TABLE OF CONTENTS
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PART ONE: INTRODUCTION TO THE COMMUNITY 2
Sunchase Estrella Limited Partnership, as the developer of the Villages at Estrella Mountain Ranch, has established this Declaration to provide a governance structure and a flexible system of standards and procedures for the overall development, administration. maintenance and preservation of the Villages at Estrella Mountain Ranch as a master planned community.
I. CREATION OF THE COMMUNITY 2
I . I . Purpose and Intent. 2
1.2. Binding Effect 2
1.3. Governing Documents 2
II. CONCEPTS AND DEFINITIONS 3
2.1 . Area of Common Responsibility 3
2.2. Association 3
2.3. Base Assessment 3
2.4. Board of Directors; Board 3
2.5. Builder. 3
2.6. Class “B” Control Period 4
2.7. Common Area 4
2.8. Common Expenses 4
2.9. Community-Wide Standard 4
2.10. Covenant to Share Costs 4
2.1 1. Declarant 4
2.12. Design Guidelines 4
2.13. Exclusive Common Area 4
2.14. Governing Documents 4
2.15. Joint Committee 5
2.16. Joint Committee By-Laws 5
2.17. Master Plan 5
2.1 8. Member 5
2.19. Mortgage 5
2.20. Neighborhood 5
2.21. Neighborhood Assessments 5
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2.22. Neighborhood Association 6
2.23. Neighborhood Expenses 6
2.24. Owner 6
2.25. Person 6
2.26.
2.27.
2.28.
2.29.
2.30.
2.31.
2.32.
2.33.
2.34.
2.35.
2.36.
PART TWO:
Private Amenities 6
Properties or the Villages at Estrella Mountain Ranch 6
Public Records 6
Rules and Regulations 6
Special Assessment 6
Specific Assessment 7
Supplemental Declaration 7
Unit 7
Use Restrictions ………………………………….. …………………………………………….. ?
Voting Group 7
Voting Member 7
CREATION AND MAINTENANCE OF COMMUNITY
STANDARDS 7
The standards for use and conduct, maintenance and architecture within the Villages at Estrella Mountain Ranch are what give the community its identity and make it a place that people want to call “home.” Yet those standards must be more than a static recitation of “thou shalt not’s.” This Declaration establishes procedures for promulgating use restrictions as a dynamic process which allows the community standards to evolve as the community changes and grows and as technology and public perce ption change.
III. USE AND CONDUCT 7
3.1. Framework for Governance 7
3.2. Promulgation of Use Restrictions 8
3.3. Owners’ Acknowledgment and Notice to Purchasers 9
3.4. Protection of Owners and Others 9
IV. ARCHITECTURE AND LANDSCAPING 10
4.1 . General 10
4.2. Architectural Review 1 1
4.3. Guidelines and Procedures 12
4.4. No Waiver of Future Approvals 14
4.5. Variances 14
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4.6. Limitation of Liability 14
4.7. Certificate of Compliance 15
V. MAINTENANCE AND REPAIR 15
5.1. Maintenance of Units 15
5.2. Maintenance of Neighborhood Property 15
5.3. Responsibility for Repair and Replacement. 16
PART THREE: COMMUNITY GOVERNANCE AN D ADMINISTRATION 16
The success of the community is dependent upon the support and participation of every owner in its governance and administration. The Declaration establishes the Villages at Estrella Mountain Ranch Community Association as the mechanism by which each owner is able to provide that support and participation. While many powers and responsibilities are vested in the Association’s board of directors, some decisions are reserved for the Association’s membership — the owners of property in the community.
VI. MEMBERSHIP AND VOTING RIG HTS 16
6.1. . Function of Association 16
6.2. Membership 17
6.3. Voting 17
6.4. Neighborhoods, Voting Members and Voting Groups 18
VII. ASSOCIATION POWERS AND RESPONSIBILITIES 20
7.1. Acceptance and Control of Association Property 20
7.2. Maintenance of Area of Common Responsibility 21
7.3. Insurance 22
7.4. Compliance and Enforcement 26
7.5. Implied Rights; Board Authority 27
7.6. Indemnification of Officers, Directors and Others 28
7.7. Security 28
7.8. Powers of the Association Relating to Neighborhoods 28
7.9 Provision of Services 29
7.10. Membership in the Joint Committee 29
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VIII. ASSOCIATION FINANCES 29
8.1.
8.2.
8.3.
8.4.
8.5.
8.6.
8.7.
8.8.
8.9.
8.10. PART FOUR:
Budgeting and Allocating Common Expenses 29
Budgeting and Allocating Neighborhood Expenses 30
Budgeting for Reserves 31
Special Assessments 31
Specific Assessments 32
Authority to Assess Owners; Time of Payment 32
Personal Obligation 33
Lien for Assessments 34
Exempt Property 35
Capitalization of Association 35
COMMUNITY DEVELOPMENT 35
The Declaration reserves various rights to the developer in order to facilitate the smooth and orderly development of the Villages at Estrella Mountain Ranch and to accommodate changes in the master plan which inevitably occur as a community the size of the Villages at Estrella Mountain Ranch grows and matures.
IX. EXPANSION OF THE COMMUNITY 35
9.1. Expansion by the Declarant. 35
9.2. Expansion by the Association 36
9.3. Additional Covenants and Easements 36
9.4. Condominium Conversions 36
9.5. Effect of Filing Supplemental Declaration 37
X. ADDITION AL RIGHTS RESERVED TO DECLARANT 37
10.1. Withdrawal of Property 37
10.2. Marketing and Sales Activities 37
10.3. Right to Develop 37
l 0.4. Right to Approve Additional Covenants 37
10.5. Right to Approve Changes in Community Standards 38
l 0.6. Right to Transfer or Assign Declarant Rights 38
10.7. Exclusive Rights to Use Name of Development 38
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PART FIVE: PROPERTY RIGHTS WITHIN THE COMMUNITY 38
The nature of living in a planned community, with its wide array of properties and development types and its ongoing development activity. requires the creation of special property rights and provisions to address the needs and responsibilities of the Owners, the developer, the Association, and others within or adjacent to the community.
XI. EASEMENTS 38
11.1. Easements in Common Area 38
11.2. Easements of Encroachment. 39
11.3. Easements for Utilities, Etc 40
11.4. Easements to Serve Additional Property 40
11.5. Easements for Maintenance, Emergency and Enforcement 41
11.6. Easements for Lake and Pond Maintenance and Flood Water 41
11.7. Easements for Golf Courses 41
XII. EXCLUSIVE COMMON AREAS 42
12.1. Purpose 42
12.2. Designation 42
12.3. Use by Others 43
XIII. PARTY WALLS AND OTHER SHARED STRUCTURES 43
13.1.
13.2.
13.3.
13.4.
General Rules of Law to Apply 43
Maintenance; Damage and Destruction 43
Right to Contribution Runs With Land 43
Disputes 43
PART SIX: RELATIONSHIPS WITHIN AND OUTSIDE THE COMMUNITY 43
The growth and success of the Villages at Estrella Mountain Ranch as a community in which people enjoy living. working, and playing requires good faith efforts to resolve disputes amicably. attention to and understanding of relationships within the community and with our neighbors, and protection of the rights of others who have an interest in the community.
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XIV. DISPUTE RESOLUTION AND LIMITATION ON LITIGATION 43
14.1 Consensus for Association Litigation 43
14.2. Alternative Method for Resolving Disputes 44
14.3. Claims 44
14.4. Mandatory Procedures 45
14.5. Allocation of Costs of Resolving Claims ……………………………………… .’ 46
14.6. Enforcement of Resolution 47
XV. AMENITIES 47
15.1. Private Amenities 47
15.2. Lakes and Park Area 49
XVI. MORTGAGEE PROVISIONS 50
16.1. Notices of Action 50
16.2. Special FHLMC Provision 50
16.3. Other Provisions for First Lien Holders 51
16.4. Amendments to Documents 52
16.5. No Priority 53
16.6. Notice to Association 53
16.7. Failure of Mortgagee to Respond 53
16.8. Construction of Article XVI 53
16.9. HUDN A Approval 53
PART SEVEN: CHANGES IN THE COMMUNITY 53
Communities such as te Villages at Estrella Mountain Ranch are dynamic and constantly evolving as circumstances, technology, needs and desires, and laws change, as the residents age and change over time, and as the surrounding community changes. The Villages at Estrella• Mountain Ranch and its governing documents must be able to adapt to these changes while protecting the things that make the Villages at Estrella Mountain Ranch special.
XVII. CHANGES IN OWNERSHIP OF UNITS 53
XVIII. CHANGES IN COMMON AREA 54
18.1. Condemnation 54
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18.2. Partition 54
18.3. Transfer or Dedication of Common Area 54
18.4. Actions Requiring Owner Approval. 55
XIX. NATURAL PRESERVE AREAS 55
19.l Definition 55
19.2. Management 55
19.3. Restrictions 56
19.4. Additional Standards 56
19.5. Enforcement 56
XX. AMENDMENT OF DECLARATION 56
20. l . By Declarant 56
20.2. By Members 57
20.3. Validity and Effective Date 57
20.4. Exhibits 57
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– TABLE OF EXHIBITS
Exhibit Subject Matter
Page First Mentioned
”A” Master Plan 5
“B” Land Initially Submitted
“C” Land Subject to Annexation 5
“D” Initial Use Restrictions 7
“E” Rules of Arbitration 46
“F” By-Laws of The Villages at Estrella Mountain Ranch Community Association
DECLARATION OF PROTECTIVE COVENANTS AND RESTRICTIONS FOR THE VILLAGES AT
ESTRELLA MOUNTAIN RANCH
THIS DECLARATION OF PROTECTIVE COVENANTS AND RESTRICTIONS is
made this /.d!d.ay of ..:- u* , 191.J, by Sunchase Estrella Limited Partnership, a Delaware limited partnership (the “Declarant”).
BACKGROUND STATEMENT
Estrella Mountain Ranch is a 10,000 acre pl us maser planned community in the City of Goodyear, Maricopa County, Arizona, which is generally shown on the Master Plan attached hereto as Exhibit “A.” On April 20, 1995, Sunchase Estrella Limited Partnership, as Declarant, executed that certain Amended and Restated Declaration of Covenants, Conditions, Restrictions and Easements for Estrella which was recorded on April 20, 1995, at Document No. 95-0221410 in the Official Records of Maricopa County, Arizona, (“Amended and Restated Declaration”), to provide a plan of development for the initial residential community within the Master Plan consisting of approximately 800 acres which is more particularly described in the Amended and Restated Declaration. Declarant formed an Arizona nonprofit corporation, known as the Estrella Community Association, to serve as the master association for the property subject to the Amended and Restated Declaration.
Declarant now desires to establish a second residential community within the Master Plan to be known as the Villages at Estrella Mountain Ranch. Declarant is the owner of all lands described on Exhibit “B” to this Declaration, and Declarant hereby records this Declaration of Protective Covenants and Restrictions for the Villages at Estrella Mountain Ranch to provide a plan of development for the property described on Exhibit “B” and such additional property which may hereinafter be submitted to this Declaration as provided herein.
. Declarant also hereby forms the Villages at Estrella Mountain Ranch Community Association to serve as the homeowners association for the Villages at Estrella Mountain Ranch. The Villages at Estrella Mountain Ranch Community Association shall not be a sub-association of the Estrella Community Association and shall be a separate and independent entity.
NOW, THEREFORE, Declarant hereby declares, covenants, and agrees as follows:
PART ONE: INTRODUCTION TO THE COMMUNITY
Article I
CREATION OF THE COMMUNITY
1.1. Purpose and Intent. The Declarant, as the owner of the real property described on Exhibit “B,” intends by the recording of this Declaration to create a general plan of development for the master planned community known as the Villages at Estrella Mountain Ranch. This Declaration provides a flexible and reasonable procedure for the future expansion of the Villages at Estrella Mountain Ranch to include additional real property as Declarant deems appropriate and provides for the overall development, administration, maintenance and preservation of the real property now and hereafter comprising the Villages at Estrella Mountain Ranch. An integral part of the development plan is the creation of the Villages at Estrella Mountain Ranch Community Association, an association comprised of all owners of real property in this community, to own, operate and/or maintain various common areas and community improvements and to administer and enforce • this Declaration and the other Governing Documents referred to in this Declaration.
1.2. Binding Effect. All property described on Exhibit “B,” and any additional property which is made a part of the Properties in the future by filing of one or more Supplemental Declarations in the Public Records, shall be owned, conveyed and used subject to all of the provisions of this Declaration, which shall run with the title to such property. This Declaration shall be binding upon all Persons having any right, title, or interest in any portion of the Properties, their heirs, successors, successors-in-title, and assigns.
This Declaration shall be enforceable by the Declarant, the Association, any Owner, and their respective legal representatives, heirs, successors, and assigns, for a term of 20 years from the date this Declaration is recorded in the Public Records. After such time, this Declaration shall be extended automatically for successive periods of ten years each, unless an instrument signed by a majority of the then Owners has been recorded in the Public Records within the year preceding any extension, agreeing to amend, in whole or in part, or terminate this Declaration, in which case this Declaration shall be amended or terminated as specified in such instrument. Notwithstanding t his, if any provision of this Declaration would be unlawful, void, or voidable by reason of applicability of the rule against perpetuities, such provision shall expire
21 years after the death of the last survivor of the now living descendants of Elizabeth II, Queen of England. Nothing in this Section shall be construed to permit termination of any easement created in this Declaration without the consent of the holder of such easement.
1.3. Governing Documents. The Governing Documents create a general plan of development for the Villages at Estrella Mountain Ranch which may be supplemented by additional covenants, restrictions and easements applicable to particular Neighborhoods within the Properties. In the event of a conflict between or among the Governing Documents and any such additional covenants or restrictions, and/or the provisions of any other articles of
‘\ incorporation, by-laws, rules or policies governing any Neighborhood, the Governing Documents
shall control. Nothing in this Section shall preclude any Supplemental Declaration or other recorded covenants applicable to any portion of the Properties from containing additional restrictions or provisions which are more restrictive than the provisions of this Declaration. The Association may, but shall not be required to, enforce any such covenants, restrictions or other instruments applicable to any Neighborhood.
All provisions of the Governing Documents shall apply to all Owners and to all occupants of their Units, as well as their respective tenants, guests and invitees. Any lease on a Unit shall provide that the lessee and all occupants of the leased Unit shall be bound by the terms of the Governing Documents. •
If any provision of this Declaration is determined by judgment or court order to be invalid, or invalid as applied in a particular instance, such determination shall not affect the validity of other provisions or applications.
Article II CONCEPTS A ND DEFINITIONS
The terms used in the Governing Documents shall generally be given their natural, commonly accepted definitions unless otherwise specified. Capitalized terms shall be defined as set forth below.
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“Area of Common Responsibility”: The Common Area, together with such other areas, if any, for which the Association has or assumes responsibility pursuant to the terms of this Declaration, any Supplemental Declaration, Covenant to Share Costs, or other applicable covenants, contracts, or agreements with any Neighborhood, other community Association, Maricopa County, Arizona, or the City of Goodyear.
“Association”: The Villages at Estrella Mountain Ranch Community Association, an Arizona nonprofit corporation, its successors or assigns.
“Base Assessment”: Assessments levied on all Units subject to assessment under Article VIII to fund Common Expenses for the general benefit of all Units.
“Board of Directors” or “Board”: The body responsible for administration of the Association, selected as provided in the By-Laws and generally serving the same role as the board of directors under Arizona corporate law.
“Builder”: Any Person who purchases one or more Units for the purpose of constructing improvements for later sale to consumers, or who purchases one or more parcels of land within the Properties for further subdivision, development, and/or resale in the ordinary course of such Person’s business and is designated as a builder by the Declarant in a written instrument recorded in the Public Records.
“Class “B” Control Period”: The period of time during which the Class “B” Member is entitled to appoint a majority of the members of the Board as provided in Section 3.3 of the By-Laws.
“Common Area”: All real and personal property, including easements, which the Association owns, leases or otherwise holds possessory or use rights in for the common use and enjoyment of the Owners. The term shall include the Exclusive Common Area, as defined below.
“Common Expenses”: The actual and estimated expenses incurred, or anticipated to be incurred, by the Association for the general benefit of all Owners, including any reasonable reserve, as the Board may find necessary and appropriate pursuant to the Governing Documents. Common Expenses shall not include any expenses incurred during the Class “B” Control Period for initial development or other original construction costs unless approved by Voting Members representing a majority of the total Class “A” vote of the Association.
“Community-Wide Standard”: The standard of conduct, maintenance, or other activity generally prevailing throughout the Properties. Such standard shall be established initially by the Declarant and may be more specificall y defined in the Design Guidelines, the Use Restrictions, and in the Rules and Regulations adopted by the Board.
“Covenant to Share Costs”: Any declaration of easements and covenants to share costs executed by Declarant and recorded in the Public Records which creates certain easements for the benefit of the Association and the present and future owners of the real property subject to such Covenant to Share Costs and which obligates the Association and such owners to share the costs of maintaining certain property described in such Covenant to Share Costs.
2.1 1. “Declarant”: Sunchase Estrella Limited Partnership, a Delaware limited partnership, or any successor or assign who takes title to any portion of the property described on Exhibits “B” or “C” for the purpose of development and/or sale and who is designated as the Declarant in a recorded instrument executed by the immediately preceding Declarant.
2.12. “Design Guidelines”: The architectural, design and construction guidelines and review procedures adopted pursuant to Article I V, as they may be amended.
2.13. “Exclusive Common Area”: A portion of the Common Area primarily benefiting one or more, but less than all, Neighborhoods, as more particularly described in Article XII.
2.14. “Governing Documents”: A collective term referring to this Declaration and any appl icable Supplemental Declaration, the By-Laws, the Articles, the Design Guidelines, the Use Restrictions, and the Rules and Regulations, as any or all may be amended or supplemented from time to time.
2.15. “Joint Committee”: The Estrella Joint Committee for Estrella Mountain Ranch, an Arizona nonprofit corporation, its successors and assigns.
2.16. “Joint Committee Bv-Laws”: The By-Laws of the Estrella Joint Committee for Estrella Mountain Ranch, establishing the powers, duties, and organization of the Joint Committee, as such may be amended from time to time.
2.17. “Master Plan”: The land use plan or site development plan for the development of Estrella Mountain Ranch and approved by the City of Goodyear, as if may be amended, which includes all of the property described on Exhibit “B” and all or a portion of the property described on Exhibit “C.” A current copy of the Master Plan is included on Exhibit “A”; provided, however, inclusion of property on the Master Plan shall not, under any circumstances, obligate Declarant to subject such property to this Declaration, nor shall subsequent amendments to the Master Plan or the omission of property described on Exhibit “C” from the Master Plan bar annexation of such property to this Declaration as provided in Article IX.
2.18. “Member”: A Person subject to membership in the Association pursuant to Section 6.2.
2.19. “Mortgage”: A mortgage, a deed of trust, a deed to secure debt, or any other form of security instrument affecting title to any Unit. A “Mortgagee” shall refer to a beneficiary or holder of a Mortgage.
2.20. “Nei ghborhood”: A group of Units designated as a separate Neighborhood for purposes of sharing Exclusive Common Areas and/or receiving other benefits or services from the Association which are not provided to all Units within the Properties, and/or for the purpose of electing Voting Members as provided in Section 6.4. A Neighborhood may be comprised of more than one housing type and may include noncontiguous parcels of property. If the Association provides benefits or services to less than all Units within a particular Neighborhood, then the benefited Units shall constitute a sub-Neighborhood for purposes of determining and levying Neighborhood Assessments for such benefits or services.
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, if any, having concurrent jurisdiction over the property within the Neighborhood. Neigh borhood boundaries may be established and modified as provided in Section 6.4.
2.21 . “Neighborhood Assessments”: Assessments levied against the Units in a particular Neighborhood or Neighborhoods to fund Neighborhood Expenses, as described in Section 8.2.
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2.22. “Neighborhood Association”: A condominium association or other owners association, if any, having concurrent jurisdiction with the Association over any Neighborhood. Nothing in this Declaration shall require the creation of a Neighborhood Association for any Neighborhood.
2.23. “Neighborhood Expenses”: The actual and estimated expenses which the Association incurs or expects to incur for the benefit of Owners of Units within a particular Neighborhood or Neighborhoods, which may include a reasonable reserve for capital repairs and replacements and a reasonable administrative charge, as may specifically be authorized pursuant to this Declaration or in the Supplemental Declaration(s) applicable to such Neighborhood(s).
2.24. “Owner”: The record holder of legal title to the fee simple interest in any Unit 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 exclud ing others who hold such title merel y as security . If fee simple title to a Unit 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 truster (or the truster’s successor of record), and not by the trustee. An Owner shall include any Person who holds record title to a Unit in joint ownership or as an undivided fee interest.
2.25. “Person”: A natural person, a corporation, a partnership, a trustee, or any other legal entity.
2.26. “Private Amenities”: Certain real property and any improvements and faci lities thereon located adjacent to, in the vici nity of, or within Estrella Mountain Ranch as may be designed in writing by the Declarant and which are pri vately owned and operated by Persons other than the Association for recreational and related purposes, on a club membership basis or otherwise, and may include, without limitation, the golf courses, if any, which are so located within the Master Plan and all related and supporting facilities and improvements.
2.27. “Properties” or the “Villages at Estrella Mountain Ranch”: The real property described on Exhibit “B,” together with such additional property as is subjected to this Declaration in accordance with Article IX.
Arizona.
2.28. “Public Records”: The Office of the County Recorder of Maricopa County,
2.29. “R ules and Regul ations”: Board adopted Rules and Regulations which establish administrative procedures for internal Association governance and operating procedures for use of the Common Area, recreational amenities, or property included within the Area of Common Responsibility.
2.30. “Special Assessment”: Assessments levied in accordance with Section 8.4.
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2.31 . “Specific Assessment”: Assessments levied in accordance with Section 8.5.
2.32. “Supplemental Declaration”: An instrument filed in the Public Records pursuant to Article IX which subjects additional property to this Declaration, designates Neighborhoods, and/or imposes, expressly or by reference, additional restrictions and obligations on the real property described in such instrument. The term shall also refer to an instrument filed by the Declarant pursuant to Section 6.4(c) which designates Voting Groups.
2.33. “Unit”: A portion of the Properties, whether improved or unimproved, which may be independently owned and conveyed and which is intended for development, use, and occupancy as an attached or detached residence for a single family. The term shall refer to the land, if any, which is part of the Unit as well as any improvements thereon. In the case of a building within a condominium or other structure containing multiple dwellings, each dwelling shall be deemed to be a separate Unit.
In the case of a parcel of vacant land or land on which improvements are under construction, the parcel shall be deemed to be a single Unit until such time as a subdivision plat or condominium plat is filed of record on all or a portion of the parcel. Thereafter, the portion encompassed by such plat shall contain the number of Units determined as set forth in the preceding paragraph and any portion not encompassed by such plat shall continue to be treated in accordance with this paragraph.
2.34. “Use Restrictions”: The initial use restrictions set forth on Exhibit “D,” as they may be supplemented, modified and repealed pursuant to Article III.
2.35. “Voting Group”: One or more Voting Members who vote on a common slate for election of directors to the Board, as more particularl y described in Section 6.4(c) or, if the context so indicates, the group of Members whose Units are represented thereby.
2.36. “Voting Member”: The representati ve selected by the Class “A” Members withi n each Neighborhood pursuant to Section 6.4( b) to cast the Class “A” votes attributable to thei r Units on all matters requiring a vote of the mem bership (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 Units pursuant to Section 6.4(b).
PART TWO: CREATION AND MAI NTEN ANCE OF COMMUNITY STANDARDS
Article III
USE AND CONDUCT
3.1. . Framework for Governance. The Governing Documents establish, as part of the general plan of development for the Properties, a framework of affirmative and negative
\ covenants, easements and restrictions which govern the Properties. However, within that
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framework, the Board and the Members must have the ability to respond to unforeseen problems and changes in circumstances, conditions, needs, desires, trends and technology which inevitably will affect the Villages at Estrella Mountain Ranch, its Owners and residents. Toward that end, this Article establishes procedures for modifying and expanding the initial Use Restrictions set forth on Exhibit “D” which govern Owners and residents activity and conduct with respect to their Units. This Article does not apply to the Board’s ability to promulgate and enforce administrative procedures or Association Rules and Regulations affecting the Common Area (., hours of operation, speed limits, etc.) which are enacted and modified through the business judgment of the Board.
3.2. Promulgation of Use Restrictions
(a) Subject to the terms of this Article and the Board’s duty to exercise business judgment and reasonableness on behalf of the Association and its Members, the Board may modify, cancel, limit, create exceptions to, or expand the Use Restrictions. The Board shall send notice by mail to all Owners concerning any such proposed action at least five business days prior to the Board meeting at which such action is to be considered. Voting Members shall have a reasonable opportunity to be heard at a Board meeting prior to such action being taken.
Such action shall become effective, after compliance with subsection (c) below, unless disapproved at a meeting by Voting Members representing more than 50% of the total Class “A” votes in the Association and by the Class “B” Member, if any. The Board shall have no obligation to call a meeting of the Voting Members to consider disapproval except upon receipt of a petition of the Voting Members as required for special meetings in the By-Laws. Upon such petition of the Voting Members prior to the effective date of any Board action Wlder this Section 3.2(a), the proposed action shall not become effective Wltil after such meeting is held, and then subject to the outcome of such meeting.
(b) Alternatively, the Voting Members, at an Association meeting duly called for such purpose, may adopt Use Restrictions which modify, cancel, limit, create exceptions to, or expand the Use Restrictions by a vote of Voting Members representing more than 50% of the total Class “A” votes in the Association and the approval of the Class “B” Member, if any.
(c) At least 30 days prior to the effective date of any action taken Wlder subsectfons (a) or (b) of this Section, the Board shall send a copy of the new Use Restriction or explanation of any changes to the Use Restrictions to each Owner specifying the effective date. The Association shall provide, without cost, a copy of the Use Restrictions then in effect to any requesting Member or Mortgagee.
(d) Nothing in this Article shall authorize the Board or the Voting Members to modify, repeal or expand the Design Guidel ines. In the event of a conflict between the Design Guidelines and the Use Restrictions, the Design Guidelines shall control.
3.3. Owners’ Acknowledgment and Notice to Purchasers. All Owners are given notice that use of their Units and the Common Area is limited by the Use Restrictions as they may be amended, expanded and otherwise modified. Each Owner, by acceptance of a deed, acknowledges and agrees that the use and enjoyment and marketability of his or her Unit can be affected by this provision and that the Use Restrictions may change from time to time. All purchasers of Units are on notice that changes may have been adopted by the Association. Copies of the current Use Restrictions may be obtained from the Association.
3.4. Protection of Owners and Others. No Use Restriction shall be adopted in violation of the following provisions, except as may be specifically set forth in this Dedaration (either initially or by amendment) or in the initial Use Restrictions:
(a) Eg ual Treatment. Similarly situated Owners shall be treated similarly; provided, Use Restrictions may vary by Neighborhood.
(b) Disolavs. The rights of Owners to display religious and holiday signs, symbols, and decorations inside structures on their Units of the kinds normally displayed in dwellings located in single-family residential neighborhoods shall not be abridged, except that the Association may adopt time, place, and manner restrictions if such a display is visible from outside the structure.
No Use Restriction shall regulate the content of political signs; however, Use Restrictions may regulate the time, place and manner of posting such signs (including design criteria).
(c) Household Composition. No Use Restriction shall interfere with the freedom of Owners to determine the composition of their households, except that the Association shall have the power to require that all occupants be members of a single housekeeping unit and to limit the total number of occupants permitted i n each Unit on the basis of the size and facilities of the Unit and its fair use of the Common Area.
(d) Activities Within Dwellings. No Use Restriction shall interfere with the activities carried on within the confines of dwellings, except that the Association may prohibit activities not normally associated with property restricted to residential use, and it may restrict or prohibit any activities that create monetary costs for the Association or other Owners, that create a danger to the health or safety of occupants of other Units, that generate excessive noise or traffic, that create unsightly conditions visible outside the dwelling, or that create an unreasonable source of annoyance.
(e) Allocation of Burdens and Benefits. No Use Restriction shall alter the allocation of financial burdens among the various Units or rights to use the Common Area to the detriment of any Owner over that Owner’s objection expressed in writing to the Association. Nothing in this provision shall prevent the Association from changing the Common Area available, from adopting generally applicable Rules and Regulations for use of Common Area, or
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from denying use privileges to those who abuse the Common Area or violate the Governing Documents. This provision does not affect the right to increase the amount of assessments as provided in Article VIII.
(f) Alienation. No Use Restriction shall prohibit leasing or transfer of any Unit, or require consent of the Association or Board for leasing or transfer of any Unit; provided, the Association or the Board may require a minimum lease term of up to 12 months. The Association may require that Owners use lease forms approved by the Association, but shall not impose any fee on the lease or transfer of any Unit greater than an amount reasonably based on the costs to the Association of administering that lease or transfer.
(g) Abridging Existing Rights. If any Use Restriction would otherwise require Owners to dispose of personal property which they maintained in or on the Unit prior to the effective date of such Use Restriction, or to vacate a Unit in which they resided prior to the effective date of such Use Restriction, and such property was maintained or such occupancy was in compliance with this Declaration and all Use Restrictions previously in force, such Use Restriction shall not apply to any such Owners without their written consent.
(h) Reasonable Rights to Develop. No Use Restriction or action by the Association or Board shall unreasonably impede the Declarant’s right to develop the Properties.
(i) Interference with Private Amenities. No Use Restriction or action by the Association shall interfere with the use or operation of any Private Amenity.
The limitations in subsections (a) through (g) of this Section 3.4 shall only limit the authority to promulgate Use Restrictions under Section 3.2; they shall not apply to amendments to this Declaration adopted in accordance with Article XX.
Article IV ARCHITECTURE A N D LANDSCAPING
4.1 . General. No structure or thing shall be placed, erected, installed or posted on the Properties and no improvements or other work ( including staking, clearing, excavation, grading. and other site work, exterior alterations of existing improvements, or planting or removal of landscaping) shall take place within the Properties, except in compliance with this Article and the Design Guidelines.
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. Any Owner may remodel, paint or redecorate the interior of his or her Unit without approval. However, modifications to the interior of screened porches, patios, and similar portions of a Unit visible from outside the structure shall be subject to approval.
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All dwellings constructed on any portion of the Properties shall be designed by and built in accordance with the plans and specifications of a licensed architect or licensed building designer unless otherwise approved by the Declarant or its designee in its sole discretion.
This Article shall not apply to the activities of the Declarant, the Joint Committee. nor to activities of the Association during the Class “B” Control Period.
4.2. Architectural Review.
(a) By Declarant. Each Owner, by accepting a deed or other instrument conveying any interest in any portion of the Properties, acknowledges that, as the developer of the Properties and as an Owner of portions of the Properties as well as other real estate within the vicinity of the Properties, Declarant has a substantial interest in ensuring that the improvements within the Properties enhance the Declarant’s reputation as a community developer and do not impair the Declarant’s ability to market, sell, or lease its property. Therefore, each Owner agrees that no activity within the scope of this Article (“Work”) shall be commenced on such Owner’s Unit unless and until the Declarant or its designee has given its prior written approval for such Work, which approval may be granted or withheld in the sole discretion of Declarant or its designee.
In reviewing and acting upon any request for approval, Declarant or its designee shall be acting solely in the interest of the Declarant and shall owe no duty to any other Person. The rights reserved to Declarant under this Article shall continue so long as Declarant owns any portion of the Properties or any real property adjacent to the Properties, unless earlier terminated in a written instrument executed by Declarant and recorded in the Public Records.
The Declarant may, in its sole discretion, designate one or more Persons from time to time to act on its behalf in reviewing applications. The Declarant may from time to time, but shall not be obligated to, delegate all or a portion of its reserved rights under this Article to (i) an architectural review committee appointed by the Association’s Board of Directors (the “ARC”), or (ii) a committee comprised of architects, engineers or other persons who may or may not be Members of the Association. Any such delegation shall be in writing, specifying the scope of responsibilities delegated, and shall be subject to (i) the right of Declarant to revoke such delegation at any time and reassume jurisdiction over the matters previously delegated; and
(ii) the •right of Declarant to veto any decision which Declarant determines, in its sole discretion, to be inappropriate or inadvisable for any reason. So long as the Declarant has any rights under this Article, the jurisdiction of the foregoing entities shall be limited to such matters as are specifically delegated to it by the Declarant.
(b) Architectural Review Committee. Upon delegation by Declarant or upon expiration or termination of the Declarant’s rights under this Article, the Association, acting through the ARC, shall assume jurisdiction over architectural matters hereunder. The ARC, when appointed, shall consist of at least three, but not more than seven, persons who shall serve and may be removed and replaced in the Board’s discretion. The members of the ARC need not
be Members of the Association or representatives of Members, and may, but need not, include architects, engineers or similar professionals, whose compensation, if any, shall be established from time to time by the Board.
Unless and until such time as Declarant delegates all or a portion of its reserved rights to the ARC or the Declarant’s rights under this Article terminate, the Association shall have no jurisdiction over architectural matters.
(c) Review Procedures. For purposes of this Article, the entity having jurisdiction in a particular case shall be referred to as the “Reviewer.” The Reviewer 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 in having any application reviewed by architects, engineers or other professionals. The Declarant and the Association may employ architects, engineers, or other persons as deemed necessary to perform the review. The Board may include the compensation of such persons in the Association’s annual operating budget as a Common Expense.
4.3. Guidelines and Procedures.
(a) Design Guidelines. The Declarant may prepare the initial Design Guidelines, which may contain general provisions applicable to all of the Properties as well as specific provisions which vary from Neighborhood to Neighborhood. The Design Guidelines are intended to provide guidance to Owners and Builders regarding matters of particular concern to the Reviewer in considering applications hereunder. The Design Guidelines are not the exclusive basis for decisions of the Reviewer and compliance with the Design Guidelines does not guarantee approval of any application.
The Declarant shall have sole and full authority to amend the Design Guidelines as long as it owns any portion of the Properties or has a right to expand the Properties pursuant to Section 9. l , notwithstanding a delegation of reviewing authority to the ARC, unless the Declarant also delegates the power to amend to the ARC. Upon termination or delegation of the Declarant’s right to amend, the ARC shall have the authority to amend the Design Guidelines with the consent of the Board. Any amendments to the Design 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 Design Guidelines, and such amendments may remove requirements previously imposed or otherwise make the Design Guidelines less restrictive.
The Reviewer shall make the Design Guidelines available for purchase or copying by Owners and Builders (at Owner’s or Builder’s expense) who seek to engage in development or construction within the Properties. In the Declarant’s discretion, such Design Guidelines may be recorded in the Public Records, 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 Design Guidelines was in effect at any particular time.
(b) Procedures. Prior to commencing any Work within the scope of this Article, an Owner shall submit to the appropriate Reviewer an application for approval of the proposed Work in such form as the Design Guidelines or the Reviewer may specify. Such application shall include plans and specifications (“Plans”) showing site layout, structural design, exterior elevations, exterior materials and colors, landscaping, drainage, exterior lighting, irrigation, and other features of proposed construction, as applicable. The Design Guidelines and the Reviewer may require the submission of such additional information as may be reasonably necessary to consider any application.
In reviewing each submission, the Reviewer may consider any factor it deems relevant. Decisions may be based on purely aesthetic considerations. Each Owner acknowledges that determinations as to such matters are purely subjective and opinions may vary as to the desirability and/or attractiveness of particular improvements.
The Reviewer shall, within 30 days after receipt of a completed application and all required information, respond in writing to the applicant at the address specified in the application. The response may (i) approve the application, with or without conditions;
(ii) approve a portion of the application and disapprove other portions; or (iii) disapprove the application. The Reviewer may, but shall not be obligated to, specify the reasons for any objections and/or offer suggestions for curing any objections.
In the event that the Reviewer fails to respond in a timely manner, approval shall be deemed to have been given, subject to the Declarant’s right to veto the action or inaction of the ARC pursuant to the next paragraph of this Section 4.3(b). However, no approval, whether expressly granted or deemed granted pursuant to the foregoing, shall be inconsistent with the Design Guidelines unless a variance has been granted pursuant to Section 4.5. Notice shall be deemed to have been given at the time the envelope containing the response is deposited with the
U. S. Postal Service. Personal delivery of such written notice shall, however, be sufficient and shall be deemed to have been given at the time of delivery to the applicant.
Until expiration of the Declarant’s rights under this Article, the ARC shall notify the Declarant in writing within three business days after the ARC has approved any application relating to proposed Work within the scope of matters delegated to the ARC by the Declarant. The notice shall be accompanied by a copy of the application and any additional information which the Declarant may require. The Declarant shall have 10 days after receipt of such notice to veto any such action or inaction, in its sole discretion, by written notice to the ARC and the applicant.
If construction does not commence on a project for which Plans have been approved within one year after the date of approval, such approval shall be deemed withdrawn and it shall be necessary for the Owner to reapply for approval before commencing the proposed Work. Once construction is commenced, it shall be diligently pursued to completion. All Work shall be completed within one year of commencement unless otherwise specified in the notice of
approval or unless the Reviewer grants an extension in writing, which it shall not be obligated to do. If approved Work is not completed within the required time, it shall be considered nonconforming and shall be subject to enforcement action by the Association, the Declarant or any aggrieved Owner.
The Reviewer may, by resolution, 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. Each Owner acknowledges that the persons reviewing applications under this Article will change from time to time and that opinions on aesthetic matters, as well as interpretation and application of the Design Guidelines, may vary accordingly. In addition, each Owner acknowledges that it may not always be possible to identify objectionable features of proposed Work until the Work is completed, in which case it may be unreasonable to require changes to the improvements involved, but the reviewer may refuse to approve similar proposals in the future. Approval of applications or Plans 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 applications, Plans, or other matters subsequently or additionally submitted for approval.
4.5. Variances. The Reviewer 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 policies of the Reviewer. 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 Reviewer 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. L imitation of Liability. The standards and procedures established by this Article are intended as a mechanism for maintaining and enhancing the overall aesthetics of the Properties but shall not create any duty to any Person. Review and approval of any application pursuant to this Article is made on the basis of aesthetic considerations only and the Reviewer 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, nor for ensuring that all dwellings are of comparable quality, value or size or of similar design.
Neither the Declarant, the Association, the Board, any committee, or member of any of the foregoing shall be held liable for soil conditions, drainage or other general site work, nor for any defects in plans revised or approved hereunder, nor for any injury, damages, or loss arising out of the manner or quality of approved construction on or modifications to any Unit. In
all matters, the ARC and all persons comprising the ARC shall be defended and indemnified by the Association as provided in Section 7 .6.
4.7. Certificate of Compliance. Any Owner may request that the Reviewer issue a certificate of architectural compliance certifying that there are no known violations on such Owner’s Unit of this Article or the Design Guidelines. The Association shall either grant or deny such request within 30 days after receipt of a written request and may charge a reasonable administrative fee for issuing such certificates. Issuance of such a certificate shall estop the Association from taking enforcement action with respect to any condition as to which the Association had notice as of the date of such certificate.
Article V
MAINTENANCE AND REPAIR
5.1. Maintenance of Units. Each Owner shall maintain his or her Unit and all landscaping and improvements comprising the Unit in a manner consistent with the Governing Documents, 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 Supplemental Declaration or other declaration of covenants applicable to such Unit.
5.2. Maintenance of Neighborhood Property. Any Neighborhood Association shall maintain its common property and any other property for which it has maintenance responsibility in a manner consistent with the Governing Documents, the Community-Wide Standard and all applicable covenants.
Upon resolution of the Board, the Owners 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 l imitation, the costs of maintaining any signage, entry features, right-of-way and open space between the Neighborhood and adjacent public roads, private streets within the Neighborhood, lakes or ponds within the Neighborhood, and Natural Preserve areas, regardless of ownership and regardless of the fact that such maintenance may be perforrried by the Association provided, however, all Neighborhoods which are similarly situated shall be treated the same.
The Association may assume maintenance responsibility for property within any Neighborhood. in addition to that designated by any Supplemental Declaration, either by agreement with the Neighborhood or because. i n 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 Units 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.
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5.3. Responsibility for Repair and Replacement. Unless otherwise specifically provided in the Governing Documents or in other instruments creating and assigning maintenance responsibility, responsibility for maintenance shall include responsibility for repair and replacement, as necessary to maintain the property to a level consistent with the Community Wide Standard.
By virtue of taking title to a Unit, 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 Unit, less a reasonable deductible, unless either the Neighborhood Association (if any) for the Neighborhood in which the Unit 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 Specific Assessment against the benefited Unit and the Owner.
Each Owner further covenants and agrees that in the event of damage to or destruction of structures on or comprising his Unit, 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 IV. Alternatively, the Owner shall clear the Unit and maintain it 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 Unit. Additional recorded covenants applicable to any Neighborhood may establish more stringent requirements for insurance and more stringent standards for rebuilding or reconstructing structures on the Units within such Neighborhood and for clearing and maintaining the Units in the event the structures are not rebuilt or reconstructed.
PART THREE: COMMUNITY GOVERNANCE AND ADMINISTRATION
Article VI
MEMBERSHIP A ND VOTING RIGHTS
6.1. . Function of Association. The Association shall be the entity responsible for management, maintenance, operation and control of the Area of Common Responsibility. The Association also shall be the primary entity responsible for enforcement of the Governing Documents. The Association’s functions and activities shall be carried out through its Board, which shall establish policies and procedures for its operations and Rules and Regulations governing the Common Area, recreational facilities, or property included in the Area of Common
Responsibility. All of the Board’s activities shall be performed in accordance with business judgment standards, the Governing Documents, and the laws of the State of Arizona.
6.2. Membership. Every Owner shall be a Member of the Association. There shall be only one membership per Unit. If a Unit is owned by more than one Person, all co Owners shall share the privileges of such membership, subject to reasonable Board regulation and the restrictions on voting set forth in Section 6.3(c) and in the By-Laws, and all such co Owners shall be jointly and severally obligated to perform the responsibilities of Owners. The membership rights of an Owner which is not a natural person may be exercised by any officer, director, partner or trustee, or by the individual designated from time to time by the Owner in a written instrument provided to the Secretary of the Association.
6.3. Voting. The Association shall have two classes of membership, Class “A” and Class “B.”
(a) Class “A”. Class “A” Members shall be all Owners except the Class “B” Member, if any. Class “A” Members shall have one equal vote for each Unit in which they hold the interest required for membership under Section 6.2, except that there shall be only one vote per U nit and no vote shall be exercised for any property which is exempt from assessment under Section 8.9. All Class “A” votes shall be cast as provided in Section 6.3(c) below.
(b) Class “B”. The sole Class “B” Member shall be the Declarant. The Class “B” Member may appoint a majority of the members of the Board of Directors during the Class “B” Control Period, as specified i n Section 3.5 of the By-Laws. Additional rights of the Class “B” Member, including 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. After termination of the Class “B” Control Period, the Class “B” Member shall have a right to disapprove actions of the Board and committees as provided in Section 3.19 of the By-Laws.
The Class “B” membership shall terminate upon the earlier of:
(i) two years after expiration of the Class “B” Control Period pursuant to Section 3.3 of the By-Laws; or
(ii) recorded instrument.
when, in its discretion, the Declarant so determines and declares in a
Upon termination of the Class “B” membership, the Declarant shall be a Class “A” Member entitled to Class “A” votes for each Unit which it owns.
(c) Exercise of Voting Rights. Except as otherwise specified in this Declaration or the By-Laws, the vote for each Unit owned by a Class “A” Member shalI be exercised by the
Voting Member representing the Neighborhood, as provided in Section 6.4(b). The Voting Member may cast all such votes as it, in its discretion, deems appropriate.
In any situation where a Member is entitled personally to exercise the vote for his or her Unit, and there is more than one Owner of such Unit, the vote for such Unit shall be exercised as the co-Owners determine among themselves and advise the Secretary of the Association in writing prior to the vote being taken. Absent such advice, the Unit’s vote shall be suspended if more than one Person seeks to exercise it.
6.4. Neighborhoods, Voting Members and Voting Groups.
(a) Neighborhoods. Any Neighborhood, acting either through a Neighborhood Committee elected as provided in Section 5.3 of the By-Laws or through a Neighborhood Association, if any, may request that the Association provide a higher level of service that that which the Association generally provides to all Neighborhoods, or may request that the Association provide special services for the benefit of Units in such Neighborhood. Upon the affirmative vote, written consent, or a combination thereof, of Owners of a majority of the Units within the Nei ghborhood, 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 Unit to all Neighborhoods receiving the same service), shall be assessed against the benefited Units within such Neighborhood as a Neighborhood Assessment.
Exhibit “B” to this Declaration, and each Supplemental Declaration submitting additional property to this Declaration shall initially assign the property submitted thereby to a specific Neighborhood (by name or other identifying designation), which Neighborhood may be then existing or newly created. So long as i t has the right to subject additional property to this Declaration pursuant to Section 9. 1, the Declarant may unilaterally amend this Declaration or any Supplemental Declaration to redesignate Neighborhood boundaries; provided, two or more existing Neighborhoods shall not be combined without the consent of Owners of a majority of the Units in the affected Neighborhoods.
(b) Voting Members. Each Neighborhood shall elect a Voting Member who shall be responsible for casting all votes attributable to Units 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 l 0% of the votes attributable to Units 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 Units m the Neighborhood shall constitute a quorum at any Neighborhood meeting.
The Board shall call for the first election of a Voting Members from a Neighborhood at such time as the Board, in its sole discretion, deems that the number of Owners in such Neighborhood is great enough to benefit from the utilization of Voting Members; provided, the Board shall call for the first election of a Voting Member not later than 30 days after the conveyance of 50% of the Units in a Neighborhood to Persons other than Builders. Subsequent elections shall be held each year on a date established by the Board. Each Class “A” Member who owns a Unit within the Neighborhood shall be entitled to cast one equal vote per Unit 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 Units 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 Units on any issue requiring a membership vote under the Governing Documents.
(c) Voting Groups. The Declarant may designate Voting Groups consisting of one or more Neighborhoods for the purpose of electing directors to the Board. Voting Groups may be designated to ensure groups with dissimilar interests are represented on the Board and to avoid allowing Voting Members representing similar Neighborhoods to elect the entire Board, due to the number of Units in such Neighborhoods, excluding representation of others. Fol lowing termination of the Class “B” Control Period, the number of Voting Groups within the Properties shall not exceed the total number of directors to be elected by the Class “A” Members pursuant to the By-Laws. 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 Section 3.5 of the By Laws. •
The Declarant shall establish Voting Groups, if at all, not later than the date of expiration of the Class “B” Control Period by filing with the Association and in the Public Records, a Supplemental Declaration identifying each Voting Group by legal description or other means such that the Units 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” Control Period.
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After expiration of the Declarant’s right to expand the community pursuant to Section 9.1, the Board shall have the right to file or amend such Supplemental Declaration upon the vote of a majority of the total number of directors and approval of Voting Members representing a majority of the total number of Neighborhoods and a majority of the total Class “A” votes in the Association. Neither recordation nor amendment of such Supplemental Declaration by Declarant 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 Properties shall constitute a single Voting Group. After a Supplemental Declaration establishing Voting Groups has been filed, any and all portions of the Properties which are not assigned to a specific Voting Group shall constitute a single Voting Group.
Article VII
ASSOCIATION POWERS A ND RESPONSIBILITIES
7.1. Acceptance and Control of Association Property.
(a) The Association, through action of its Board, may acquire, hold, and dispose of tangible and intangible personal property and real property, subject to the provisions of Sections 16.9 and 18.4.
(b) The Declarant and its designees may convey to the Association personal property and fee title, leasehold or other property interests in any real property, improved or unimproved, described on Exhibits “B” or “C.” The Association shall accept and maintain such property at its expense for the benefit of its Members, subject to any restrictions set forth in the eed or other instrument transferring such property to the Association. Upon written request of Declarant, the Association shall reconvey to Declarant any unimproved portions of the Properties original ly conveyed by Declarant to the Association for no consideration, to the extent conveyed by Declarant in error or needed by Declarant to make reasonable adjustments in property lines.
(c) The Declarant and its designees may convey personal property and fee title, leasehold or other property interests in any portion of the Properties designated as Natural Preserve Areas, as defined in Article XIX, to the Association or Joint Committee. The fee simple owner of the Natural Preserve Areas may convey such area to an environmental entity for the purpose of observing, maintaining, or preserving environmentally sensitive areas located within the Natural Preserve Areas and monitoring or conducting such natural resource, habitat preservation or other environmental programs or plans which may be implemented within the Properties. The Board shall have the right to convey the Natural Preserve Areas to
environmental entities with the consent of the Declarant as long as it owns any property
described in Exhibits “B” or “C” and thereafter in its discretion. An environmental entity may be an entity which is exempt from federal income taxes under the Internal Revenue Code (“Code”), such as, but not limited to, entities which are exempt from federal income taxes under Sections 50 l (c)(3) or 501 (c)(4), as the Code may be amended from time to time.
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7.2. Maintenance of Area of Common Responsibility.
(a) The Association shall maintain, in accordance with the Community-Wide Standard, the Area of Common Responsibility, which shall include, but need not be limited to:
(i) all portions of and structures situated upon the Common Area;
Properties;
(ii) landscaping within public rights-of-way within or abutting the
(iii) such portions of any additional property included within the Area of Common Responsibility as may be dictated by this Declaration, any Supplemental Declaration. the Covenant to Share Costs, or any contract or agreement for maintenance thereof entered into by the Association;
(iv) all ponds, streams, washes, arroyos, and/or wetlands located within the Properties which serve as part of the stormwater drainage system for the Properties, including improvements and equipment installed therei n or used in connection therewith; and
(v) any property and facil ities 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 Association may maintain other property which it does not own, including, without l imitation, property dedicated to the public, i f the Board of Directors determines that such maintenance is necessary or desirable to maintain the Community-Wide Standard. 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 shall not be obligated to maintain the Natural Preserve Areas, but may be required to contribute to the cost of owning, maintaining, and preserving such areas as may be established by the Joint Committee or an environmental entity.
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The 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.
(b) The Association shall maintain the facilities and equipment within the Area of Common Responsibility in normal operation, except for any periods necessary, as determined in the sole discretion of the Board, to perform required maintenance or repairs, unless Members representing 75% of the Class “A” votes in the Association and the Class “B” Member, if any, agree in writing to discontinue such operation.
Except as provided above, the Area of Common Responsibility shall not be reduced by amendment of this Declaration or any other means except with the prior written approval of the Declarant as long as the Declarant owns any property described on Exhibits “B” or “C” of this Declaration.
(c) The costs associated with maintenance, repair and replacement of the Area of Common Responsibility shall be a Common Expense; provided, the Association may seek reimbursement from the owner(s) of, or other Persons responsible for, certain portions of the Area of Common Responsibility pursuant to this Declaration, the Covenant to Share Costs, other recorded covenants, or agreements with the owner(s) thereof. Maintenance, repair and replacement of Exclusive Common Areas shall be a Neighborhood Expense assessed to the Neighborhood(s) such to which the Exclusive Common Areas are assigned, notwithstanding that the Association may be responsible for performing such maintenance hereunder.
7.3. 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 Area and within the Area of Common Responsibility to the extent that the Association has assumed responsibility in the event of a casualty, regardless of ownership. If such coverage is not generally available at reasonable cost, then “broad form” coverage may be substituted. All property insurance policies obtained by the Association shall have policy limits sufficient to cover the full replacement cost of the insured improvements under current building ordinances and codes;
(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, such 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) Commercial crime insurance, including 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 Units 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.
In addition, the Association shall, if so specified in a Supplemental Declaration applicable to any Neighborhood, obtain and maintain property insurance on the insurable improvements within such Neighborhood which insurance shall comply with the requirements of Section 7.3(a)(i). Any such policies shall provide for a certificate of insurance to be furnished upon request to the Owner of each Unit insured.
Premiums for all insurance on the Area of Common Responsibility shall be Common Expenses, except that (i) premiums for property insurance on Units within a Neighborhood shall be a Neighborhood Expense; and (ii) premiums for insurance on Exclusive Common Areas may be included in the Neighborhood Expenses of the Neighborhood(s) to which such Exclusive Common Areas are assigned unless the Board 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 its insurance coverage by one or more qualified Persons, at least one of whom must be familiar with insurable replacement costs i n the Maricopa County, Arizona area. All Association policies shall provide for a certificate of insurance to be furnished to the Association and, upon request, to each Member insured.
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 7.3(a). In the event of an insured loss, the deductible shall be treated as a Common 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 3 .24 of the By-Laws, 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 assess the full amount of such deductible against such Owner(s) and their Units as a Specific Assessment.
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 Federal National Mortgage Association, or such other secondary mortgage market agencies or federal agencies as the Board deems appropriate;
(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 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;
insurance clause;
(v) include an agreed amount endorsement, if the policy contains a co-
(vi) provide that each Owner is an insured person under the policy with respect to liability arising out of such Owner’s interest in the Common Area or membership in the Association;
(vii) provide a waiver of subrogation under the policy against any Owner or household member of a Owner;
(viii) include 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; and
(ix) include an endorsement precluding cancellation, invalidation, or condition to recovery under the policy on account of any act or omission of any one or more individual Owners, unless such 0’Nner is acting within the scope of its authority on behalf of the Association.
In addition, the Board shall use reasonable efforts to secure insurance policies which list the Owners as additional insureds and provide:
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(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;
paying cash;
(ii) a waiver of the insurer’s rights to repair and reconstruct instead of
(iii) an endorsement excluding Owners’ individual policies from consideration under any “other insurance” clause;
(iv) an endorsement requiring at least 30 days’ prior written notice to the Association of any cancellation, substantial modification, or non-renewal;
(v) a cross liability provision; and
(vi) 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) Restoring Damaged Improvements. In the event of damage to or destruction of Common Area or other property which the Association is obligated to insure, the Board or its duly authorized agent shall file and adjust all insurance claims and obtain reliable and detailed estimates of the cost of 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.
Damaged improvements on the Common Area 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 estimates of the loss, 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 Area shall be repaired or reconstructed.
If a decision is made not to restore the damaged improvements, 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 repair or reconstruction, or after such settlement as is necessary and appropriate, shall be retained by the Association for the benefit of its Members or the Owners of Units within the insured 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 Unit.
If insurance proceeds are insufficient to cover the costs of repair or reconstruction, the Board may, without a vote of the Voting Members, levy Special Assessments to cover the shortfall against those Owners responsible for the premiums for the applicable insurance coverage under Section 7.3(a).
7.4. Compliance and Enforcement. Every Owner and occupant of a Unit shall comply with the Governing Documents. The Board may impose sanctions for violation of the Governing Documents after notice and a hearing in accordance with the procedures set forth in Section 3 .24 of the By-Laws. Such sanctions may include, without limitation:
(a) imposing reasonable monetary fines which shall constitute a lien upon the violator’s Unit. (In the event that any occupant, guest or invitee of a Unit violates the Governing Documents and a fine is imposed, the fine shall first be assessed against the violator; provided, however, if the fine is not paid by the violator within the time period set by the Board, the Owner shall pay the fine upon notice from the Board);
(b) suspending an Owner’s right to vote;
(c) suspending any Person’s right to use any recreational facilities within the Common Area; provided, however, nothing herein shall authorize the Board to limit ingress or egress to or from a Unit;
(d) suspending any services provided by the Association to an Owner or the Owner’s Unit if the Owner is more than 30 days delinquent in paying any assessment or other charge owed to the Association;
(e) exercising self-help or taking action to abate any violation of the Governing Documents in a non-emergency situation;
(f) requiring an Owner, at its own expense, to remove any structure or improvement on such Owner’s Unit in violation of Article IV and to restore the Unit to its previous condition and, upon failure of the Owner to do so, the Board or its designee shall have the right to enter the property, remove the violation and restore the property to substantially the same condition as previously existed and any such action shall not be deemed a trespass;
(g) without liability to any Person, precluding any contractor, subcontractor, agent, employee or other invitee of an Owner who fails to comply with the terms and provisions of Article IV and the Design Guidelines from continuing or performing any further activities in the Properties;
(h) levying Specifically Assessments to cover costs incurred by the Association to bring a Unit into compliance with the Governing Documents.
In addition, the Board may take the following enforcement procedures to ensure compliance with the Governing Documents without the necessity of compliance with the procedures set forth in Section 3.24 of the By-Laws:
(a) exercising self-help in any emergency situation (specifically including, but not limited to, the towing of vehicles that are in violation of parking Use Restrictions or the Association’s Rules and Regulations)
(b) bringing suit at law or m equity to enJom any violation or to recover monetary damages or both.
In addition to any other enforcement rights, if an Owner fails properly to perform his or her maintenance responsibility, the Association may record a notice of violation in the Public Records or perform such maintenance responsibilities and assess all costs incurred by the Association against the Unit and the Owner as a Special Assessment. If a Neighborhood Association fails to perform its maintenance responsibilities, the Association may perform such maintenance and assess the costs as a Specific Assessment against all Units within such Neighborhood. Except in an emergency situation, the Association shall provide the Owner or Neighborhood Association reasonable notice and an opportunity to cure the problem prior to taking such enforcement action.
All remedies set forth m the Governing Documents shall be cumulative of any remedies available at law or in equity. In any action to enforce the Governing Documents, if the Association prevails, it shall be entitled to recover all costs. including, without l imitation, attorneys fees and court costs, reasonably incurred i n such action. The Joint Committee shall be authorized, but not obligated, 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 shall not be obligated to take any action if the Board reasonably determines that the Association’s position is not strong enough to justify taking such action. Such a•decision shall not be construed a waiver of the right of the Association to enforce such provision at a later time under other circumstances or estop the Association from enforcing any other covenant, Use Restriction, or Rules and Regulations.
The Association, by contract or other agreement, may enforce applicable city and county ordinances, if applicable, and permit Maricopa County or the City of Goodyear to enforce ordinances within the Properties for the benefit of the Association and its Members.
7.5. Implied Rights: Board Authority. The Association may exercise any right or
\, privilege given to it expressly by the Governing Documents, or reasonably implied from or
reasonably necessary to effectuate any such right or privilege. Except as otherwise specifically provided in the Governing Documents, or by law, all rights and powers of the Association may be exercised by the Board without a vote of the membership.
7.6. Indemnification of Officers, Directors and Others. The Association shall indemnify every officer, director, and committee member against all damages and expenses, including counsel fees, reasonably incurred in connection with any action, suit, or other proceeding (including settlement of any suit or proceeding, if approved by the then Board of Directors) to which he or she may be a party by reason of being or having been an officer, director, or committee member, except that such obligation to indemnify shall be limited “to those actions for which liability is limited under the Articles of Incorporation and Arizona law. This right to indemnification shall not be exclusive of any other rights to which any present or former officer, director, or committee member may be entitled. The Association shall, as a Common Expense, maintain adequate general liability and officers’ and directors’ liability insurance to fund this obligation, if such insurance is reasonably available.
7.7. Security. The Association may, but shall not be obligated to, maintain or support certain activities within the Properties designed to make the Properties safer than they otherwise might be. Neither the Association nor the Declarant shall in any way be considered insurers or guarantors of security within the Properties, nor shall either 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 systems or measures, including any mechanism or system for limiting access to the Properties, can not be compromised or circumven ted, nor that any such systems or security meas u res 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 i ts U nit that the Association, its Board and committees, and the Declarant are not insurers and that each Person using the Properties assumes all risks of personal inju ry and loss or damage to property, including Units and the contents of Units, resulting from acts of third parties.
7.8. 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 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 in connection with its obligations and responsibilities, such as requiring specific maintenance or repairs or aesthetic changes to be effectuated and requiring that a proposed budget include certain items and that expenditures be made therefor.
A Neighborhood Association shall take appropriate action required by the Association in a written notice within the reasonable time frame set by the Association in the notice. If the Neighborhood Association fails to comply, the Association shall have the right to effect such
action on behalf of the Neighborhood Association and levy Specific Assessments to cover the costs, as well as an administrative charge and sanctions.
7.9. Provision of Services. The Association shall be authorized but not obligated to enter into and terminate, in the Board’s discretion, contracts or agreements with other entities, including Declarant, to provide services to and facilities for the Members of the Association and their guests, lessees and invitees and to charge use and consumption fees for such services and facil ities. By way of example, some services and facilities which might be offered include landscape maintenance, pest control service, cable television service, security, caretaker, transportation, fire protection, utilities, and similar services and faci lities.
7.10. Membership i n the Joi nt Commi ttee: 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 may nominate or appoint one or more representatives to serve on the Joint Committee’s board of directors in accordance with the Joint Committee’s By-Laws The Association shall cooperate with the Joint Committee in performing its maintenance and operational responsibilities within Estrella and enforcing the Joint Committee’s communi ty-wide standard.
Article VIII
ASSOCIATION FINA NCES
8. l . Budgeti ng and Allocati ng Common Expenses. At least 60 days before the beginni ng of each fiscal year, the Board shall prepare a budget of the estimated Common Expenses for the coming year, including any contributions to be made to a reserve fund pursuant to Section 8.3. 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 Properties. Subject to Section 8.6, the Association shall incorporate the statement from the Joint Committee into its budget for Assessments. The budget shall also reflect the sources and estimated amounts of funds to cover such expenses, which may include any surplus to be applied from prior years, any income expected from sources other than assessments levied against the Units, and the amount to be generated through the levy of Base Assessments and Special Assessments against the Units, as authorized in Section 8.6.
The Association is hereby authorized to levy Base Assessments equally against all U nits subject to assessment under Section 8.6 to fund the Common Expenses. In determining the Base Assessment rate per Unit, the Board may consider any assessment income expected to be generated from any additional Units reasonably anticipated to become subject to assessment during the fiscal year.
The Declarant may, but shall not be obligated to, reduce the Base Assessment for any fiscal year by payment of a subsidy (in addition to any amounts paid by Declarant under Section 8.7(b), which may be either a contribution, an advance against future assessments due
\. from the Declarant, or a loan, in the Declarant’s discretion. Any such subsidy shall be disclosed
as a line item in the income portion of the budget. The payment of such subsidy in any year shall not obligate the Declarant to continue payment of such subsidy in future years, unless otherwise provided in a written agreement between the Association and the Declarant.
The Board shall send a copy of the final budget, together with notice of the amount of the Base Assessment to be levied pursuant to such bud get, to each Owner at least 30 days prior to the effective date of such budget. The budget shall automatically become effective unless disapproved at a meeting by Members representing at least 75% of the total Class “A” votes in the Association and by the Class “B” Member, if such exists. There shall be no obligation to call a meeting for the purpose of considering the budget except on petition of the Members as provided for special meetings in Section 2.4 of the By-Laws, which petition must be presented to the Board within I 0 days after delivery of the budget and notice of any assessment. Notwithstanding the foregoing, if the proposed budget shall result in an increase in Base Assessments greater than the maximum increase permitted by the Arizona Revised Statutes governing planned communities without approval of the Association membership, the Board shall have such budget and Base Assessment approved by Voting Members representing at least a majority of the total votes in the Association.
If any proposed budget is disapproved or the Board fails for any reason to determine the budget for any year, then the budget most recently in effect shall continue in effect until a new budget is determined.
The Board may revise the budget and adjust the Base Assessment from time to time during the year, subject to the notice requirements and the right of the Members to disapprove the revised budget as set forth above.
8.2. Bud geti ng and Allocat i ng Nei gh borhood Expenses. At least 60 days before the begi nning of each fiscal year, the Board shall prepare a separate budget covering the estimated Neighborhood Expenses for each Neigh borhood on whose behalf Neighborhood Expenses are expected to be incurred during the coming year. Each such budget shall include any costs for additional services or a higher level of services which the Owners in such Neighborhood have approved pursuant to Section 6.4(a) and any contribution to be made to a reserve fund pursuant to Section 8.3. The budget shall also reflect the sources and estimated amounts of funds to cover such expenses. which may include any surplus to be applied from prior years, any income expected from sources other than assessments, and the sums generated through Neighborhood and Special Assessments against the Units in such Neighborhood.
The Association is hereby authorized to levy Neighborhood Assessments equally against all Units in the Neighborhood which are subject to assessment under Section 8.6 to fund Neighborhood Expenses; provided, if so specified in the applicable Supplemental Declaration 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 Units in proportion to the benefit received.
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The Board shall cause a copy of the Neighborhood budget and notice of the amount of the Neighborhood Assessment for the coming year to be delivered to each Owner in the Nei ghborhood at least 30 days prior to the beginni ng of the fiscal year. Such budget and assessment shall become effective unless disapproved at a meeting of the Neighborhood by Owners of a majority of the Units 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 Units in such Neighborhood. This right to disapprove shall only apply to those l ine items in the Neighborhood budget which are attributable to services requested by the Neighborhood and shall not apply to any item which the Governing Documents require to be assessed as a Neighborhood Assessment. Notwithstanding the foregoing, if the proposed Neighborhood budget shall result in an increase in Neighborhood Assessments greater than the maximum increase permitted by the Arizona Revised Statutes governing planned communities without approval of a majority of the Owners in the Neighborhood, the Board shall have such bud get and Neighborhood Assessment approved by at least a majority of the Owners in such 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.
The Board may revise the budget for any Neighborhood and the amount of any Neigh borhood Assessment from time to time during the year, subject to the notice requirements and the right of the Owners of Units in the affected Neighborhood to disapprove the revised budget as set forth above.
8.3. Budgeti ng for Reserves. The Board shall prepare and review at least annuall y a reserve budget for the Area of Common Responsibility and for each Neighborhood for which the Association maintains capital items as a Neigh borhood Expense. The budgets shall take into account the number and nature of replaceable assets, the expected l ife of each asset, and the expected repair or replacement cost. The Board shall include in the Common Expense budget adopted pursuant to Section 8.1 or the Neighborhood Expense budgets adopted pursuant to Section 8.2, as appropriate, a capital contribution to fund reserves in an amount sufficient to meet the projected need with respect both to amount and timing by annual contributions over the budget period.
8.4. Special Assessments. In addition to other authorized assessments, the Association may levy Special Assessments to cover unbudgeted expenses or expenses in excess of those budgeted. Any such Special Assessment may be levied against the entire mem bership, if such Special Assessment is for Common Expenses, or against the Units within any Neighborhood if such Special Assessment is for Neigh borhood Expenses. Except as otherwise specifically provided in this Declaration, any Special Assessment shall require the affirmative vote or written consent of Voting Members (if a Common Expense) or Owners (if a Neighborhood Expense) representing more than 50% of the total votes allocated to Units which
will be subject to such Special Assessment, and the affirmative vote or written consent of the Class “B” Member, if such exists. Special Assessments shall be payable in such manner and at such times as determined by the Board, and may be payable in installments extending beyond the fiscal year in which the Special Assessment is approved.
8.5. Specific Assessments. The Association shall have the power to levy Specific Assessments against a particular Unit as follows:
(a) to cover the costs, including overhead and administrative costs, of providing services to Units upon request of an Owner pursuant to any menu of special services which may be offered by the Association (which might include the items identified in Section 7.9). Specific Assessments for special services may be levied in advance of the provision of the requested service; and
(b) to cover costs incurred in bringing the Unit into compliance with the Governing Documents, or costs incurred as a consequence •of the conduct of the Owner or occupants of the Unit, their agents, contractors, employees, licensees, invitees, or guests; provided, the Board shall give the Unit Owner prior written notice and an opportunity for a hearing, in accordance with Section 3.24 of the By-Laws, before levying any Specific Assessment under this subsection (b).
The Association may also levy a Specific Assessment against the Units within any Neighborhood to reimburse the Association for costs incurred in bringing the Neighborhood into compliance with the provisions of the Governing Documents, provided the Board gives prior written notice to the Owners of Units in, or the Voti ng Member representing, the Neighborhood and an opportunity for such Owners or Voti ng Member to be heard before levying any such assessment.
8.6. Authori tv to Assess Owners; Time of Pavment. The Declarant hereby establishes and the Association is hereby authorized to levy assessments as provided for in this Article and elsewhere in the Governing Documents. The obligation to pay assessments shall commence as to each Unit on the first day of the month following: (a) the month in which the Unit is made subject to this Declaration, or (b) the month in which the Board first determines a budget and levies assessments pursuant to this Article, whichever is later. The first annual Base Assessment and Neighborhood Assessment, if any, levied on each Unit shall be adjusted according to the number of months remaining i n the fiscal year at the time assessments commence on the Unit.
Assessments shall be paid in such manner and on such dates as the Board may establish in accordance with the requirements of Arizona law. The Board may require advance payment of assessments at closing of the transfer of title or escrow to a Unit and impose special requirements for Owners with a history of delinquent payment. If the Board so elects, assessments may be paid in two or more installments. Unless the Board otherwise provides, the
\. Base Assessment and any Neighborhood Assessment shall be due and payable in advance on the
first day of each fiscal year. If any Owner is delinquent in paying any assessments or other charges levied on his Unit, the Board may require the outstanding balance on all assessments to be paid in full immediately.
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 Properties 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.
8.7. Personal Obligation.
(a) Each Owner, by accepting a deed or entering into a recorded contract of sale for any portion of the Properties, is deemed to covenant and agree to pay all assessments authorized in the Governing Documents. All assessments, together with interest (computed from its due date at a rate of 10% per annum or such higher rate as the Board may establish, subject to the limitations of Arizona law), late charges as authorized by law, costs, and reasonable attorneys’ fees, shall be the personal obligation of each Owner and a lien upon each Unit until paid i n ful l. Upon a transfer of title to a Unit, the grantee shall be jointly and severally liable for any assessments and other charges due at the time of conveyance.
Failure of the Board to fix assessment amounts or rates or to deliver or mail each Owner an assessment notice shall not be deemed a waiver, modification, or a release of any Owner from the obligation to pay assessments. In such event, each Owner shall continue to pay Base Assessments and Neighborhood Assessments on the same basis as during the last year for which an assessment was made, if any, until a new assessment is levied, at which time the Association may retroactivel y assess any shortfalls i n collections.
No Owner may exempt himself from l iabil ity for assessments by non-use of Common Area, abandonment of his Unit, or any other means. The obligation to pay assessments is a separate and independent covenant on the part of each Owner. No diminution or abatement of assessments or set-off shall be claimed or allowed for any alleged failure of the Association or Board to take some action or perform some function required of it, or for inconvenience or discomfort arising from the making of repairs or improvements, or from any other action it takes.
The Association shall, within seven days of a written request, furnish to any Owner liable for any type of assessment a certificate in writing and in recordable form signed by an Association officer setting forth whether such assessment has been paid. Such certificate shall be conclusive evidence of payment. The Association may require the advance payment of a
\. reasonable processing fee for the issuance of such certificate.
(b) Declarant’.s Option to Fund Budget Deficits. During the Class “B” Control Period, Declarant may satisfy its obligation for assessments on Units which it owns either by paying such assessments in the same manner as any other Owner or by paying the difference between the amount of assessments levied on all other Units subject to assessment and the amount of actual expend itures by the Association during the fiscal year. Unless the Declarant otherwise notifies the Board in writing at least 60 days before the beginning of each fiscal year, the Declarant shall be deemed to have elected to continue paying on the same basis as during the immediately preceding fiscal year. Regardless of the Declarant’s election, the Declarant’s obligations hereunder may be satisfied in the form of cash or by “in kind” contributions of services or materials, or by a combination of these. After termination of the Class “B” Control Period, the Declarant shall pay assessments on its unsold Units in the same manner as any other Owner.
8.8. Lien for Assessments. The Association shall have a lien against each Unit to secure payment of delinquent assessments, as well as interest, late charges (subject to the limitations of Arizona law), and costs of collection (including attorneys fees). Such lien shall be superior to all other liens, except (a) the liens of all taxes, bonds, assessments, and other levies which by law would be superior, and (b) the lien or charge of any Mortgage of record (meaning any recorded Mortgage with first priority over other Mortgages) made in good faith and for val ue. Such l ien, when delinquent, may be enforced by suit, judgment, and judicial or nonjudicial foreclosure. The Joint Committee shall also have a lien against each Unit for any unpaid Joint Committee expenses levied against the Association or the Unit Owners directly. In the event the Association and the Joint Committee both claim a lien against a Unit, the Joint Committee’s lien shall have priority over the Association’s lien.
The Association may bid for the Unit at the foreclosure sale and acquire, hold, lease, mortgage, and convey the Unit. While a Unit is owned by the Association following foreclosure:
(a) no right to vote shall be exercised on its behalf; (b) no assessment shall be levied on it; and
(c) each other Unit shall be charged, in addition to i ts usual assessment, i ts pro rata share of the assessment that would have been charged such Unit had it not been acquired by the Association. The Association may sue for unpaid assessments and other charges authorized hereunder without foreclosing or waiving the l ien securing the same. The Joint Committee may also sue for any unpaid Joint Committee expenses levied against the Association or the Unit Owners directly.
The sale or transfer of any Unit shall not affect the assessment lien or relieve such Unit from the l ien for any subsequent assessments. However, the sale or transfer of any Unit pursuant to foreclosure of the Mortgage shall extinguish the lien as to any installments of such assessments due prior to the Mortgagee’s foreclosure. The subsequent Owner to the foreclosed Unit shall not be personally liable for assessments on such Unit due prior to such acquisition of title. Such unpaid assessments shall be deemed to be Common Expenses collectible from Owners of all Units subject to assessment under Section 8.6, including such acquirer, its successors and assigns.
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8.9. Exempt Property. The following property shall be exempt from payment of Base Assessments, Neighborhood Assessments, and Special Assessments:
(a) All Common Area and such portions of the property owned by the Declarant as are included in the Area of Common Responsibility pursuant to Section 7.2;
(b) Any property dedicated to and accepted by any governmental authority or public utility; and
(c) Property owned by any Nei ghborhood Association for the common •use and enjoyment of its members, or owned by the members of a Neighborhood Association as tenants m-common.
In addition, the Declarant and/or the Association shall have the right, but not the obligation, to grant exemptions to certain Persons qualifying for tax exempt status under Section 50 l (c) of the Internal Revenue Code so long as such Persons own property subject to this Declaration for purposes listed in Section 50 l (c).
8.10. Capital ization of Association. Upon acquisition of record title to a Unit by the first Owner thereof other than the Declarant or a Builder, a contribution shall be made by or on behalf of the purchaser to the kingital of the Association in an ant eS?al to e sixth of the annual Base Assessment per Unit for that year. This amount shall be in addition to,
not in lieu o[ the annual Base Assessment and shall not be considered an advance payment of
such assessment. This amount shall be deposited into the purchase and sales escrow and disbursed to the Association for use in covering operating expenses and other expenses incurred by the Association pursuant to this Declaration and the By-Laws.
PART FOUR: COMMUNITY DEVELOPMENT
Article IX
EXPA NSION OF THE COMMUNITY
9.1. Expansion by the Declarant. Declarant may from time to time subject to the provisions of this Declaration all or any portion of the property described in Exhibit “C” by filing a Supplemental Declaration in the Public Records describing the additional property to be subjected; provided, however that no commercial property may be subjected to the provisions of this Declaration as part of any such additional property. A Supplemental Declaration filed pursuant to this Section shall not require the consent of any Person except the owner of such property, if other than Declarant.
The Declarant’s right to expand the community shall expire when all property described on Exhibit “C” has been subjected to this Declaration or 40 years after the recording of this Declaration in the Public Records, whichever is earlier. Until then, the Declarant may transfer or assign this right to any Person who is the developer of at least a portion of the real
property described in Exhibits “B” or “C.” Any such transfer shall be memorialized in a written, recorded instrument executed by Declarant.
Nothing in this Declaration shall be construed to require the Declarant or any successor to subject additional property to this Declaration or to develop any of the property described in Exhibit “C” in any manner whatsoever.
9.2. Expansion by the Association. The Association may also subject additional property to the provisions of this Declaration by filing a Supplemental Declaration in the Public Records describing the additional property; provided, however that no commercial property may be subjected to the provisions of this Declaration as part of any such additional property. Any such Supplemental Declaration shall require the affirmative vote of Voting Members representing more than 50% of the Class “A” votes of the Association represented at a meeting duly called for such purpose and the consent of the owner of the property. In addition, so long as Declarant owns property subject to this Declaration or which may become subject to this Declaration in accordance with Section 9.1, the consent of the. Declarant shall be necessary. The Supplemental Declaration shall be signed by the President and Secretary of the Association, by the owner of the property and by Declarant, if Declarant’s consent is necessary.
9.3. Additional Covenants and Easements. The Declarant may subject any portion of the Properties to additional covenants and easements, including covenants obligating the Association to maintain, to provide services, and to insure such property and authorizing the Association to recover its costs through Neighborhood Assessments or the Covenant to Share Costs. Such additional covenants and easements may be set forth either in a Supplemental Declaration subjecting such property to this Declaration or in a separate Supplemental Declaration or Covenant to Share Costs referencing property previously subjected to this Declaration. I f the property not submitted to this Declaration is owned by someone other than Declarant, then the consent of such owner(s) shall be necessary and shall be evidenced by their execution of such Supplemental Declaration. Any such Supplemental Declaration may supplement, create exceptions to, or otherwise modify the terms of this Declaration as it applies to the subject property in order to reflect the different character and intended use of such property.
9.4. Condomini um Conversions. Property described on Exhibit “C” which is: (a) zoned and used for multi-family rental apartments, and (b) is not subject to this Declaration but is subject to a Covenant to Share Costs, may become subject to this Declaration if such property is converted to residential condominiums. The owner of such property shall have the property converted to residential condominiums withdrawn from the coverage of the Covenant to Share Costs pursuant to its terms and shall subject such property to the provisions of this Declaration by filing a Supplemental Declaration in the Public Records describing the property and specifically subjecting it to the terms of this Declaration. If such property is within the area described on Exhibit “C,” such Supplemental Declaration shall not require the consent of the Association, but shall require the signature of an officer of the Association acknowledging it. In
addition, the Declarant’s prior written consent shall be necessary so long as the Declarant owns any property described on Exhibits “B” or “C.”
9.5. Effect of Filing Supplemental Declaration. Any Supplemental Declaration filed pursuant to this Article shall be effective upon recording in the Public Records unless otherwise specified in such Supplemental Declaration. On the effective date of the Supplemental Declaration, any additional property subjected to this Declaration shall be assigned voting rights in the Association and assessment liability in accordance with the provisions of this Declaration.
Article X
ADDITIONAL RIGHTS RESERVED TO DECLARANT
10.1. Withdrawal of Property. The Declarant reserves the right to amend this Declaration so long as it has a right to annex additional property pursuant to Section 9.1, for the purpose of removing any portion of the Properties from the coverage of this Declaration, provided such withdrawal is not unequicocally contrary to the overall, uniform scheme of development for the Properties. 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.
10.2. Marketing and Sales Activities. The Declarant and Builders authorized by Declarant may maintain and carry on upon portions of the Common Area 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 Units, including, but not limited to, business offices, signs, model units, and sales offices. The Declarant and authorized Builders shall have easements for access to and use of such facilities.
10.3. Right to Develop. The Declarant and its employees, agents and designees shall have a right of access and use and an easement over and upon all of the Common Area for the purpose of making, constructing and installing such improvements to the Common Area as it deems appropriate in its sole discretion. Each Person acquiring an interest in the Properties acknowledges that Estrella Mountain Ranch is a master planned community, the development of which is likely to extend over many years, and may require changes to the zoning, density, and Master •Plan, which shall be allowed provided that such changes are not unequivocally contrary to the overall, uniform scheme of development for the Properties.
10.4. Right to Approve Additional Covenants. No Person shall record any declaration of covenants, conditions and restrictions, or declaration of condominium or similar instrument affecting any portion of the Properties 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 in the Public Records.
10.5. Right to Approve Changes in Community Standards. No amendment to or modification of any Use Restrictions or Design Guidelines made after termination of the Class “B” Control Period shall be effective without prior notice to and the written approval of Declarant.
10.6. Right to Transfer or Assign Declarant Rights. Any or all of the special rights and obligations of the Declarant set forth in this 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 in the Public Records.
10.7. Exclusive Rights to Use Name of Development. No Person shall use the name “Estrella Mountain Ranch” or any derivative of such name in any printed or promotional material without the Declarant’s prior written consent. However, Owners may use the name “Estrella Mountain Ranch” in printed or promotional matter where such term is used solely to specify that particular property is located within the Villages at Estrella Mountain Ranch and the Association shall be entitled to use the word the “Villages at Estrella Mountain Ranch” in its name.
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.
PART FIVE: PROPERTY RIGHTS WITHIN THE COMMUNITY
Article XI
EASEMENTS
1 1.1. Easements in Common Area. The Declarant grants to each Owner an appurtenant right and nonexclusive easement of use, access, and enjoyment in and to the Common Area, subject to:
(a) The Governing Documents and any other applicable covenants;
(b) Any restrictions or limitations contained in any deed conveying such property to the Association;
(c) The right of the Board to adopt Rules and Regulations with respect to the use, enjoyment and operation of the Common Area, including rules limiting the number of guests who may use the Common Area;
(d) The right of the Board to suspend the right of an Owner to use recreational facilities within the Common Area (i) for any period during which any charge against such
Owner’s Unit remains delinquent, and (i i) for a period not to exceed 30 days for a single violation or for a longer period in the case of any continuing violation, of the Governing Documents after notice and a hearing pursuant to Section 3.24 of the By-Laws;
(e) The right of the Association, acting through the Board, to dedicate or transfer all or any part of the Common Area, subject to such approval requirements as may be set forth in this Declaration;
(f) The right of the Board to impose reasonable membership requirements and charge reasonable admission or other use fees for the use of any recreational facility •situated upon the Common Area;
(g) The right of the Board to permit use of any recreational facilities situated on the Common Area by persons other than Owners, their families, lessees and guests upon payment of use fees established by the Board;
(h) The right of the Association, acting through the Board, to mortgage, pledge, or hypothecate any or all of its real or personal property as security for money borrowed or debts incurred, subject to the approval requirements set forth in Sections 16.9 and 18.4;
(i) The rights of certain Owners to the exclusive use of those portions of the
.- Common Area designated “Exclusive Common Areas,” as described in Article XII; and
(j) The right of the Board to assign portions of the Common Area or any recreational facilities situated thereon to the Joint Committee for operation, management, and maintenance, and Joint Committee’s ability to impose reasonable membership requirements, admission fees, or other use fees.
Any Owner may extend his or her right of use and enjoyment to the members of his or her family, lessees, and social invitees, as applicable, subject to reasonable regulation by the Board. An Owner who leases his or her Unit shall be deemed to have assigned all such property rights to the lessee of such Unit.
1 1.2. Easements of Encroachment. The Declarant grants reciprocal appurtenant easements of encroachment, and for maintenance and use of any permitted encroachment, between each Unit and any adjacent Common Area and between adjacent Units or any Unit and any Private Amenity 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.
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11.3. Easements for Utilities, Etc.
(a) The Declarant reserves for itself, so long as the Declarant owns any property described on Exhibit “B” or “C” of this Declaration, and grants to the Association and all utility providers, perpetual non-exclusive easements throughout all of the Properties (but not through a structure) to the extent reasonably necessary for the purpose of:
(i) installing utilities and infrastructure to serve the Properties on property which Declarant owns or within public rights-of-way or easements reserved for such purpose on recorded plats;
(ii) inspecting, mainta1nin repairing and replacing utilities and infrastructure to serve the Properties; cable and other systems for sending and receiving data and/or other electronic signals; security and similar systems; walkways, pathways and trails; drainage systems; street lights and signage; and
(iii) access to read utility meters.
(b) Declarant also reserves for itself the non-exclusive right and power to grant and record in the Public Records 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 “B” and “C.” The Owner of any property to be burdened by any easement granted pursuant to this subsection (b) shall be given written notice in advance of the grant. The location of the easement shall be subject to the written approval of the Owner of the burdened property, which approval shall not unreasonably be withheld, delayed or conditioned.
(c) All work associated with the exercise of the easements described in subsections (a) and (b) of this Section shall be performed in such a manner as to minimize interference with the use and enjoyment of the property burdened by the easement. Upon completion of the work, the Person exercisi g the easement shall restore the property, to the extent reasonabl y possible, to its condition prior to the commencement of the work. The exercise of these easements shall not extend to permitting entry into the structures on any Unit, nor shall it unreasonably interfere with the use of any Uni t and, except in an emergency, entry onto any Unit shall be made only after reasonable notice to the Owner or occupant.
11.4. Easements to Serve Additional Property. The Declarant hereby reserves for itself and its duly authorized agents, successors, assigns, Mortgagees, and the Joint Committee, an easement over the Common Area for the purposes of enjoyment, use, access, and development of the property described in Exhibit “C,” 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 Area 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 Area 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.
1 1.5. Easements for Mai tenance. Emergencv and Enforcement. The Declarant grants to the Association easements over the Properties as necessary to enable the Association to fulfill its maintenance responsibilities under Section 7.2. The Association shall also have the right, but not the obligation, to enter upon any Unit for emergency, security, and safety •reasons, to perform maintenance, to enforce the Governing Documents, and to inspect for the purpose of ensuring compliance with the Governing Documents. Such right may be exercised by any member of the Board and its duly authorized agents and assignees, and all emergency personnel in the performance of their duties. Except in an emergency situation, entry shall only be during reasonable hours and after notice to the Owner.
1 1.6. Easements for Lake and Pond Maintenance and Flood Water. The Declarant reserves for itself, the Association, and their successors, assigns, and designees, the nonexclusive right and easement, but not the obligation, to enter upon bodies of water and wetlands located within the Area of Common Responsibility to operate and maintain structures and equipment used for retaining water in a manner consistent with the Community-Wide standard. The Declarant, the Association, and their successors, assigns and designees shall have an access, maintenance, and landscaping easement over and across any of the Properties abutting or containing bodies of water, or wetlands to the extent reasonably necessary to exercise their rights under this Section. All persons entitled to exercise these easements shall use reasonable care in, and repair any damage resul ing from the intentional exercise of such easements. Nothing herein shall be construed to make Declarant or any other Person liable for damage resulting from flooding due to heavy rainfall or other natural occurrences.
1 1 .7. Easements for Golf Courses.
(a) Ifand to the extent one or more golf courses are developed within the Master Plan, every Unit, the Common Area, and the common property of any Neighborhood Association are burdened with an easement permitting golf balls unintentionally to come upon such areas, and for •golfers at reasonable times and in a reasonable manner to come upon the Common Area, common property of a Neighborhood, or the exterior portions of a Unit to retrieve errant golf balls; provided, however, i f any Unit is fenced or walled, the golfer shall seek the Owner’s permission before entry. The existence of this easement shall not relieve golfers of liability for damage caused by errant golf balls. Under no circumstances shall any of the following Persons be held liable for any damage or injury resulting from errant golf balls or the exercise of this easement: the Declarant; the Association or its Members (in their capacity as such); Sunchase Estrella Limited Partnership, its successors, successors-in-title to the golf course, or assigns; any builder or contractor (in their capacities as such); any officer, director or partner of any of the foregoing, or any officer or director of any partner.
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(b) The owner of any golf course within or adjacent to any portion of the Properties, its agents, successors and assigns, shall at all times have a right and non-exclusive easement of access and use over those portions of the Common Areas reasonably necessary to the operation, maintenance, repair and replacement of its golf course.
(c) Any portion of the Properties immediately adjacent to any golf course is hereby burdened with a non-exclusive easement in favor of the adjacent golf course for overspray of water from the irrigation system serving such golf course. Under no circumstances shall the Association or the owner of such golf course be held liable for any damage or injury resulting from such overspray or the exercise of this easement.
(d) The owner of any golf course within or adjacent to any portion of the Properties, its successors and assigns, shall have a perpetual, exclusive easement of access over the Properties for the purpose of retrieving golf balls from bodies of water within the Common Areas lying reasonably within range of golf balls hit from its golf course.
Article XII
EXCLUSIVE COMMON AREAS
12.l . Purpse. Certain portions of the Common Area may be designated as Exclusive Common Area and reserved for the exclusive use or primary benefit of Owners and occupants within a particular Neighborhood or Neighborhoods. By way of illustration and not limitation, Exclusive Common Areas may include entry features, recreational facilities, landscaped medians and cul-de-sacs, lakes and other portions of the Common Area within a particular Neighborhood or Neighborhoods. All costs associated with maintenance, repair, replacement, and insurance of an Exclusive Common Area shall be a Neighborhood Expense allocated among the Owners in the Neighborhood(s) to which the Exclusive Common Areas are assigned.
12.2. Designation. Initially, any Exclusive Common Area shall be designated as such in the deed conveying such area to the Association or on the subdivision plat relating to such Common Area; provided, however, any such assignment shall not preclude the Declarant from later assigning use of the same Exclusive Common Area to additional Units and/or Neighborhoods, so long as the Declarant has a right to subject additional property to this Declaration pursuant to Section 9.1 .
Thereafter, a portion of the Common Area may be assigned as Exclusive Common Area and Exclusive Common Area may be reassigned upon approval of the Board and the vote of Voting Members representing a majority of the total Class “A” votes in the Association, including a majority of the Class “A” votes within the Neighborhood(s) affected by the proposed assignment or reassignment. As long as the Declarant owns any property subject to this
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Declaration or which may become subject to this Declaration in accordance with Section 9.1 , any such assignment or reassignment shall also require the Declarant’s written consent.
12.3. Use by Others. The Association may, upon approval of a majority of the members of the Neighborhood Committee or board of directors of the Neighborhood Association for the Neighborhood(s) to which any Exclusive Common Area is assigned, permit Owners of Units in other Neighborhoods to use all or a portion of such Exclusive Common Area upon payment of reasonable user fees, which fees shall be used to offset the Neighborhood Expenses attributable to such Exclusive Common Area.
Article XIII
PARTY WALLS AND OTHER SHARED STRUCTURES
13.1. General Rules of Law to Applv. Each wall, fence, driveway or similar structure bui t as a part of the original construction on the Units which serves and/or separates any two adjoining Units shall constitute a party structure. To the extent not inconsistent with the provisions of this Section, the general rules of law regarding party walls and liability for property damage due to negligence or willful acts or omissions shall apply thereto.
13.2. Maintenance; Damage and Destruction. The cost of reasonable repair and maintenance of a party structure shall be shared equally by the Owners who make use of the party structure.
If a party structure is destroyed or damaged by fire or other casualty, then to the extent that such damage is not covered by insurance and repaired out of the proceeds of insurance, any Owner who has used the structure may restore it. If other Owners thereafter use the structure, they shall contribute to the restoration cost i n equal proportions. However, such contribution will not prejudice the right to cal l for a larger contribution from the other users under any rule of law regarding liability for negligent or willful acts or omissions.
13.3. Right to Contribution Runs With Land. The right of any Owner to contribution from any other Owner under this Section shall be appurtenant to the land and shall pass to such Owner’s successors-in-title.
13.4. Disputes. Any dispute arising concerning a party structure shall be handled in accordance with the provisions of Article XIV.
PART SIX: RELATIONSHIPS WITHIN AND OUTSIDE THE COMMUNITY
Article XIV
DISPUTE RESOLUTION A ND LIMITATION ON LITIGATION
14. l . Consensus for Association Litigation. The Association shall not commence a judicial or administrative proceeding without the approval at least 75% of the Voting Members.
A Voting Member representing Units 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 Units in the Neighborhood represented by the Voting Member. This Section shall not apply, however, to (a) actions brought by the Association to enforce the Governing Documents (including, without limitation, the foreclosure of liens); (b) the collection of assessments; (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.
14.2. Alternative Method for Resolving Disputes. The Declarant, the Association, its officers, directors, and committee members, all Persons subject to this Declaration, the Joint Committee, any Builder, 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 Properties, without the emotional and financial costs of litigation. Accordingly, each Bound Party covenants and agrees that those claims, grievances or disputes described in Sections 14.3 (“Claims”) shall be resolved using the procedures set forth in Section 14.3 in lieu of filing suit in any court.
14.3. Claims. Unless specifically exempted below, all Claims arising out of or relating to the interpretation, application or enforcement of the Governing Documents, or the rights, obligations and duties of any Bound Party under the Governing Documents or relating to the design or construction of improvements on the Properties shall be subject to the provisions of Section 14.4.
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 14.4:
(a) any suit by the Association against any Bound Party to enforce the provisions of Article VIII (Assessments);
(b) any suit by the Association to obtain a temporary restrammg 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 III (Use and Conduct) and Article IV (Architecture and Landscaping);
(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 the Governing Documents;
(d) any suit in which any indispensable party is not a Bound Party; and
(e) any suit as to which the applicable statute of limitations would expire within 180 days of the Notice pursuant to Section l 4.4(a), unless the party or parties against whom the
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Claim is made agree to toll the statute of limitations as to such Claim for such period as may reasonably be necessary to comply with this Article.
With the consent of all parties thereto, any of the above may be submitted to the alternative dispute resolution procedures set forth in Section 14.4.
14.4. Mandatory Procedures.
(a) Notice. Any Bound Party having a Claim (“Claimant”) against arty 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;
Claim arises);
2. the legal basis of the Claim (i.e., the specific authority out of which the
3. Claimant’s proposed remedy; and
4. that Claimant wi ll 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 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 a an independent mediation agency with whom the Association has contracted to provide such services to the Villages at Estrella Mountain Ranch, or, if the Association has not entered into such an agreement, an independent agency providing dispute resolution services in the Phoenix area as agreed upon by the Parties.
3. If Claimant does not submit the Claim to mediation within such time, 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 v..rriting by the mediator and signed by the Parties. If the Parties do not settle the Claim within 30 days after submission of the matter to the mediation, 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 v..rritten settlement demand (“Settlement Demand”) to the Respondent, •and the Respondent shall make a final v..rritten 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 writi 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 “E” 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.
14.5. Allocation of Costs of Resolving Claims.
(a) Subject to Section 14.S(b), each Party shall bear its own costs, including attorneys fees, 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.
14.6. 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 14.4. 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.
Article XV
AMENITIES
15.1. Private Amenities.
(a) Access. Neither membership in the Association nor ownership or occupancy of a Unit shall confer any ownership interest in or right to use any Private Amenity. Rights to use the Private Amenities will be granted only to such persons, and on such terms and conditions, as may be determined from time to time by the respective owners of the Private Amenities. The owners of the Private Amenities shall have the right, from time to time in their sole and absolute discretion and without notice, to amend or waive the terms and conditions of use of their respective Private Amenities, including, without limitation, eligibility for and duration of use rights, categories of use and extent of use privileges, and number of users, and shall also have the right to reserve use rights and to terminate use rights altogether, subject to the terms of any written agreements with their respective members.
(b) Conveyance of Private Amenities. All Persons, including all Owners, are hereby advised that no representations or warranties have been or are made by the Declarant, the Association, any Builder, or by any Person acting on behalf of any of the foregoing, with regard to the continuing ownership or operation of any Private Amenity, and no purported representation or warranty in such regard, either \Vri tten or oral, shall be effective unless specifically set forth in a \Vritten instrument executed by the record owner of the Private Amenity. Further, the ownership or operation of the Private Amenity may change at any time by virtue of, but without limitation, (i) the sale to or assumption of operations of any Private Amenity by a Person other than the current owner or operator; (ii) the establishment of, or conversion of the membership structure to, an “equity” club or similar arrangement
whereby the members of the Private Amenity or an entity owned or controlled by its members become the owner(s) and/or operator(s) of the Private Amenity; or (ii) the conveyance of any Private Amenity to one or more affiliates, shareholders, employees, or independent contractors of the Declarant. No consent of the Association, any Neighborhood Association, any Voting Member, or any Owner shall be required to effectuate any change i n ownership or operation of any Private Amenity, for or without consideration and subject to or free of any mortgage, covenant, lien or other encumbrance.
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(c) View Impairment. Neither the Declarant, the Association, nor the owner of any Private Amenity, guarantees or represents that any view over and across the Private Amenity from Units adjacent to the Private Amenity will be preserved without impairment. Owners of the Private Amenities, if any, shall have no obligation to prune or thin trees or other landscaping, and shall have the right, in their sole and absolute discretion, to add trees and other landscaping to the Private Amenities from time to time. In addition, the owner of any Private Amenity which includes a golf course may, in its sole and absolute discretion, change the location, configuration, size and elevation of the trees, bunkers, fairways and greens from time to time. Any such additions or changes may diminish or obstruct any view from the Units and any express or implied easements for view purposes or for the passage of light and air are hereby expressly disclaimed.
(d) Rights of Access and Parking. There is hereby established for the benefit of the Private Amenity and their members (regardless of whether such members are Owners hereunder), guests, invitees, employees, agents, contractors, and designees, a right and nonexclusive easement of access and use over all roadways •located within the Properties reasonably necessary to travel between the entrance to the Properties and the Private Amenity and over those portions of the Properties (whether Common Area or otherwise) reasonably necessary to the operation, maintenance, repair, and replacement of the Private Amenity. Without limiting the generality of the foregoing, members of the Private Amenity and guests and invitees of the Private Amenity shall have the right to park their vehicles on the roadways located within the Properties at reasonable times before, during, and after tournaments and other similar functions held by or at the Private Amenity to the extent that the Private Amenity has insufficient parking to accommodate such vehicles.
(e) Architectural Control. Neither the Declarant, the Association, any Neighborhood Association, or any committee shall approve any construction, addition, alteration, change, or installation on or to any portion of the Properties which is adjacent to, or otherwise in the direct line of sight of, any Private Amenity without giving the Private Amenity at least 15 days’ prior written notice of i ts intent to approve the same together with copies of the request and all other documents and information finally submitted in such regard. The Private Amenity shall then have 15 days to respond in writing approving or disapproving the proposal, stating in detail the reasons for any disapproval. The failure of the Private Amenity to respond to the notice within the 15-day period shall constitute a waiver of the Private Amenity’s right to object to the matter. This Section shall also apply to any work on the Common Area or any common property or common elements of a Neighborhood Association, if any.
(f) Limitations on Amendments. In recognition of the fact that the provisions of this Article are for the benefit of the Private Amenity, no amendment to this Article, and no amendment in derogation of any other provisions of this Declaration benefiting any Private Amenity, may be made without the written approval of the owner of the Private Amenity. The foregoing shall not apply, however, to amendments made by the Declarant.
(g) Jurisdiction and Cooperation. It is Declarant’s intention that the Association and the Private Amenity shall cooperate to the maximum extent possible in the operation of the Properties and the Private Amenity. Each shall reasonably assist the other in upholding the Community-Wide Standard as it pertains to maintenance and the Design Guidelines. The Association shall have no power to promulgate Use Restrictions or Rules and Regulations other than those set forth on Exhibit “D” affecting activities on or use of the Private Amenity without the prior written consent of the owners of the Private Amenity affected thereby.
15.2. Lakes and Park Area.
(a) Ownership and Use. A portion of the Common Area may include one or more lakes and adjacent park areas, if any. Such lakes 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 Plan for Estrella, regardless of whether such Persons are subject to this Declaration. Additionally, such areas may be available to the general public, subject to the terms of the Governing Documents. These areas 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 such lakes and park areas, or whether the lakes are 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. If and so long as the lakes and park areas are owned by the Association, it shall be responsible for maintaining the lakes, the lands beneath the water surface, the shoreline, and the responsibility for maintaining, repairing, replacing and insuring all improvements located adjacent to the lakes such as the beach, a boat club or beach club, and any real and personal property associated therewith. The expense of such maintenance shall be a Common Expense unless the Board establishes any special use fees for such areas pursuant to Section 1 1 .1, or portions of the 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 Unit, acknowledges on behalf of himself and all Occupants of such Unit, and all Persons making use
..; .
– – . -. .:,;;; —
of the lakes, surrounding areas, and Natural Preserve Areas designated in accordance with Article XIX, acknowledge, that there are inherent dangers associated with such areas. Natural and man made hazards, including without limitation, hazardous marine life and currents, may exist. The Association may, but shall not be obligated to, maintain or support certain activities, personnel, and programs to enhance the safety; however, each O\VTler and each Person making use of such areas assumes all risks. Neither the Association, its officers, directors, employees or agents, the Declarant, its partners or affiliates, nor any committee created to promote or address safety shall be insurers of any Person’s safety while using the lakes, surrounding areas, or Natural Preserve Areas nor shall any of them be liable for any injury, loss, or damage arising out of use of such areas by any Person, by reason of failure to warn, failure to keep the areas in a safe condition, failure to take adequate safety precautions or address kno\VTl problems, ineffectiveness of safety measures undertaken, or any other reason.
Article XVI
MORTGAGEE PROVISIONS
The following provisions are for the benefit of holders, insurers and guarantors of first Mortgages on Units in the Properties. The provisions of this Article apply to both this Declaration and to the By-Laws, notwithstanding any other provisions contained therein.
16.l . Notices of Action. An institutional holder, insurer, or guarantor of a first Mortgage who provides a written request to the Association (such request to state the name and address of such holder, insurer, or guarantor and the street address of the Unit to which its Mortgage relates, thereby becoming an “Eligible Holder”), will be entitled to timely written notice of:
(a) Any condemnation loss or any casualty loss which affects a material portion of the Properties or which affects any Unit on which there is a first Mortgage held, insured, or guaranteed by such Eligible Holder;
(b) Any delinquency i n the payment of assessments or charges owed by a Unit subject to the Mortgage of such Eligible Holder, where such del inquency has continued for a period of 60 days, or any other violation of the Governing Documents relating to such Unit or the 0\VTler or Occupant which is not cured within 60 days;
(c) Any lapse, cancellation, or material modification of any msurance policy maintained by the Association; or
(d) Any proposed action which would require the consent of a specified percentage of Eligible Holders.
16.2. Special FHLMC Provision. So long as required by the Federal Home Loan Mortgage Corporation, the following provisions apply in addition to and not m lieu of the
Mortgages on Units to which more than 50% of the votes of Units subject to Mortgages held by such Eligible Holders are allocated.
16.4. Amendments to Documents. The following prov1s1ons do not apply to amendments to the constituent documents or termination of the Association as a result of destruction, damage, or condemnation pursuant to Section l 6.3(a) and (b), or to the addition of land in accordance with Article IX.
(a) The consent of Voting Members representing at least 67% of the Class “A” votes and of the Declarant, so long as it owns any land subject to this Declaration, ‘and the approval of the Eligible Holders of first Mortgages on Units to which at least 67% of the votes of Units subject to a Mortgage appertain, shall be required to terminate the Association.
(b) The consent of Voting Members representing at least 67% of the Class “A” votes and of the Declarant, so long as it owns any land subject to this Declaration, and the approval of Eligible Holders of first Mortgages on Units to which more than 50% of the votes of Units subject to a Mortgage appertain, shall be required materially to amend any provisions of the Declaration, By-Laws, or Articles of Incorporation, or to add any material provisions thereto which establish, provide for, govern, or regulate any of the following:
(i)
(ii)
voting;
assessments, assessment liens, or subordination of such liens;
Area;
(iii)
(iv)
(v)
(vi)
reserves for maintenance, repair, and replacement of the Common
insurance or fidel ity bonds; rights to use the Common Area;
responsi bility for maintenance and repair of the Properties;
(vii) expansion or contraction of the Properties or the addition, annexation, or withdrawal of Properties to or from the Association;
(viii) boundaries of any Unit;
(ix) leasing of Units;
(x) imposition of any right of first refusal or similar restriction of the right of any Owner to sell, transfer, or otherwise convey his or her Unit;
(xi) establislunent of self-management by the Association where professional management has been required by an Eligible Holder; or
(xii) any provisions included in the Declaration, By-Laws, or Articles of Incorporation which are for the express benefit of holders, guarantors, or insurers of first Mortgages on Units.
16.5. No Prioritv. No provision of this Declaration or the By-Laws gives or shall be construed as giving any Owner or other party priority over any rights of the first Mortgagee of any Unit in the case of distribution to such Owner of insurance proceeds or condemnation awards for losses to or a taking of the Common Area.
16.6. Notice to Association. Upon request, each Owner shall be obligated to furnish to the Association the name and address of the holder of any Mortgage encumbering such Owner’s Unit.
16.7. Fail ure of Mortgagee to Respond. Any Mortgagee who receives a written request from the Board to respond to or consent to any action shall be deemed to have approved such action if the Association does not receive a written response from the Mortgagee within 30 days of the date of the Association’s request, provided such request is delivered to the Mortgagee by certi fied or registered mail, return receipt requested.
16.8. Construction of Article XVI. Nothing contained in this Article shall be construed to reduce the percentage vote that must otherwise be obtained under the Declaration, By-Laws, or Arizona law for any of the acts set out in this Article.
16.9. HUDN A Approval. As long as there is a Class “B” membership, the following actions shall require the prior approval of the U.S. Department of Housing and Urban Development or the U.S. Department of Veterans Affai rs, if either such agency is insuring or guaranteeing the Mortgage on any Unit: merger, consolidation or dissolution of the Association; annexation of additional property other than that described on Exhibit “C”; dedication, conveyance or mortgaging of Common Area; or material amendment of this Declaration. The granting of easements for utilities or other similar purposes consistent with the intended use of the Common Area shall not be deemed a conveyance within the meaning of this Section.
PART SEVEN: CHANGES IN THE COMMUNITY
Article XVII
CHA NGES I N OWNERSHIP OF UNITS
Any Owner desiring to sell or otherwise transfer title to his or her Unit shall give the Board at least fifteen business days’ prior written notice of the name and address of the purchaser or transferee, the date of such transfer of title, and such other information as the Board may reasonably require. The Association shall provide the purchaser or transferee with such
information and documentation as may be required by law. Each Owner shall pay to the Association a transfer fee to defray the administrative cost to the Association of such transfer in an amount to be established by Board resolution. The transferor shall continue to be jointly and severall y responsible with the transferee for all obligations of the Owner of the Unit, including assessment obligations, until the date upon which such notice is received by the Board, notwithstanding the transfer of title.
Article XVIII
CHANGES IN COMMON AREA
18.1. Condemnation. If any part of the Common Area shall be taken (or conveyed in lieu of and under threat of condemnation by the Board acting on the written direction of Yoting Members representing at least 67% of the total Class “A” votes in the Association and of the Declarant, as long as the Declarant owns any property subject to the Declaration or which may be made subject to the Declaration in accordance with Section 9.1) by any authority having the power of condemnation or eminent domain, each Owner shall be entitled to written notice of such taking or conveyance prior to disbursement of any condemnation award or proceeds from such conveyance. Such award or proceeds shall be payable to the Association to be disbursed as follows:
If the taking or conveyance involves a portion of the Common Area on which improvements have been constructed, the Association shall restore or replace such improvements on the remaining land included in the Common Area to the extent available, unless within 60 days after such taking the Declarant, so long as the Declarant owns any property subject to the Declaration or which may be made subject to the Declaration in accordance with Section 9.1, and Voti ng Mem bers representing at least 75% of the total Class “A” vote of the Association shall otherwise agree. Any such construction shall be i n accordance with plans approved by the Board. The provisions of Section 7.3(c) regardi ng funds for restoring improvements shall apply.
If the taking or conveyance does not involve any improvements on the Common Area, or if a decision is made not to repair or restore, or if net funds remain after any such restoration or replacement is complete, then such award or net funds shall be disbursed to the Association and used for such purposes as the Board shall determine.
18.2. Partition. Except as permitted in this Declaration, the Common Area shall remai n undivided, and no Person shall bring any action partition of any portion of the Common Area without the written consent of all Owners and Mortgagees. This Section shall not prohibit the Board from acquiring and disposing of tangible personal property nor from acquiring and disposing of real property which may or may not be subject to this Declaration.
18.3. Transfer or Dedication of Common Area. The Association may dedicate portions of the Common Area to Maricopa County, Arizona, the City of Goodyear, or to any
other local, state, or federal governmental or quasi-governmental entity, subject to such approval as may be required by Sections. 16.9 and 18.4.
18.4. Actions Req uiri ng Owner Approval. If either the U.S. Department of Housing and Urban Development or the U.S. Department of’Veterans Affairs is insuring or guaranteeing the Mortgage on any Unit, then the following actions shall require the prior approval of Voting Mem bers representing not less than two-thirds (2/3) of the total Class “A” votes in the Association and the consent of the Class “B” Member, if such exists: merger, consolidation or dissolution of the Association; annexation of additional property other than that described on Exhibit “C;” and dedication, conveyance or mortgaging of Commo•n Area. Notwithstanding anything to the contrary in Section 18.1 or this Section, the Association, acting through the Board, may grant easements over the Common Area for installation and maintenance of utilities and drainage facilities and for other purposes not inconsistent with the intended use of the Common Area, without the approval of the membership.
Article XIX
NATURAL PRESERVE AREAS
19.1. Definition. Open spaces, certain washes and arroyos designated by the Declarant, wilderness areas, wildlife habitats, rock outcroppings, mountain sides, and other environmentally sensitive portions of the Properties shall herei nafter be referred to as “Natural Preserve Areas” and shall be designated as Natural Preserve Areas by the Declarant on a recorded plat or in separate covenants applicable to such areas.
19.2. Management. Natural Preserve Areas shall be managed and maintained in thei r undeveloped, unused condition, subject to such limitations, restrictions, or grants of authority set forth by the Declarant on the plats or covenants applicable to such areas. It is anticipated that certain Natural Preserve Areas may support limited recreational uses (., hiking, trails, paths, etc.) while other Natural Preserve Areas shall be restricted to their natural aesthetic state. The hierarchy of uses permitted shall be set forth on the plats, covenants, or other recorded instrument applicable to such areas. Additionally, the Declarant or the owner of a Natural Preserve Areas may impose specific standards of maintenance, conduct or activities which affect the Natural Preserve Areas by giving vvrinen notice to the Association or by recordi ng such standards i n the Public Records. The Association may be granted the limited authority and responsi bility to oversee the preservation of such areas and to take any actions in accordance with appropriate law and adopt Rules and Regulations as may be necessary for the control and management of the Natural Preserve Areas. Owners shall be permitted to use the Natural Preserve Areas only to the extent authorized by the Declarant or the Owners of the Natural Reserve Areas provided in the plats, covenants, or other recorded instruments made applicable to such areas. Entrance into or use of a Natural Reserve Area by an Owner, its guests or invitees, shall be at his or her own risk. Owners shall be liable and subject to a Specific Assessment for any injury, damage or viol ation of the restrictions applicable to the Natural Preserve Area.
19.3. Restrictions. All vehicles other than those performing maintenance within the Natural Preserve Areas to the limited extent required herein will be prohibited from driving in unpaved areas, specifically as indicated in the form of vehicular no-access easements on recorded plats. Maintenance contractors shall mechanically weed abate along any fencing adjacent to Natural Preserve Areas. The entity responsible for maintenance shall monitor any changes in quantity or quality of overland flows reaching Natural Preserve Areas due to circumstances other than weather. Chemical pesticides, herbicides, and chemical fertilizers will be prohi bited for use or application within the Natural Preserve Areas. All Natural Preserve Areas shall be kept litter free. These areas shall be monitored at least once per week and all litter and other non-native materials shall be removed as necessary to preserve the areas in their• natural state. Any and all vandalism of any type impacting the Natural Preserve Areas shall be repaired and restored to natural conditions to the extent reasonabl y possible.
19.4. Additional Standards. The owner or entity charged with maintenance and preservation of the Natural Preserve Areas shall have the authority to establish additional rules and standards of maintenance and conduct for such areas, and the owner thereof shall at all times comply with any permit conditions and other legal requirements applicable to such areas.
19.5. Enforcement. The Board shall be authorized, but not obligated, to impose sanctions for violation of this Article in accordance with the provisions of Section 7.4 of this Declaration. The Joint Committee shall be authorized, but not obligated, 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.
Article XX
AMENDMENT OF DECLARATION
20.1 . By Declarant. In addit ion to specific amendment rights granted elsewhere in this Declaration and subject to the provisions of Article XVI. until termination of the Class “B” mem bershi p, Declarant may unilaterally amend this Declaration for any purpose. Thereafter, the Declarant may unilaterall y amend this Declaration i f such amendment is necessary (i) to bring any provision into compl iance with any applicable governmental statute, rule, regulation, or judicial determination; (ii) to enable any reputable title insurance company to issue title insurance coverage on the Units; (iii) to enable any institutional or governmental lender, purchaser, insurer or guarantor of mortgage J oans, including, for example, the Federal National Mortgage Association or Federal Home Loan Mortgage Corporation, to make, purchase, insure or guarantee mortgage loans on the Units; or ( iv) to satisfy the requirements of any local, state or federal governmental agency. However, any such amendment shall not adversely affect the title to any Unit unless the Owner shall consent in writing. In addition, so long as the Declarant owns property described in Exhibits “B” or “C” for development as part of the Properties, it may unilaterally amend this Declaration for any other purpose, provided the amendment has no material adverse effect upon any right of any Owner.
20.2. Bv Members. Except as otherwise specificall y provided above and elsewhere i n this Declaration, this Declaration may be amended only by the affirmative vote or written consent. or any combination thereof. of Voti ng Mem bers representing 75% of the total Class “A” votes i n the Association, incl ud ing 75% of the Class “A” votes held by Mem bers other than the Declarant, and the consent of the Declarant. so long the Declarant owns any property subject to this Declaration or which may become subject to this Declaration in accordance with Section 9.1. I n addition. the approval requirements set forth in Article XVI shall be met, if applicable.
Notwithstanding the above, the percentage of votes necessary to amend a specific clause shall not be less than the prescribed percentage of affirmati ve votes required for action to be taken under that clause.
20.3. Val id itv and Effect i ve Date. No amend ment may remove, revoke, or modi fy any right or pri vi lege of the Declarant or the Class “B” Mem ber without the wri tten consent of the Dec larant or the Class “B” Mem ber, respecti vel y (or the assignee of such right or privilege).
If an Owner consents to any amendment to this Declaration or the By-Laws, it wi ll be conclusi vely 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.
A ny amend ment shall become effecti ve u pon record ing i n the Publ ic Records. unless a later effecti ve date is speci fied in the amend ment. A ny proced ural challenge to an amendment must be made wi thin six mont hs of i ts recordation or such amend ment shall be presumed to have been val id l y adopted. I n no event shall a change of conditions or circumstances operate to amend any provisions of this Declaration.
20.4. Exhi bi ts. Exhibits “B,” “C,” and “E” attached to this Declaration are incorporated by this reference and amend ment of such exhibi ts shall be governed by this Article. A l l other exhibits are attached for informational pu rposes and may be amended as provided therei n or i n the provisions of this Declarat i on which refer to such exhibits.
DECLA RANT: Sunchase Estrel la Limited Part nershi p, a
By: f
Stephen E. Rennckar. V ice President –
SunChase Estrella, I nc. General Partner of
Estrella Sun. General Partner [ACKNOWLEDG M ENT ON N EXT PAG E]
STATE OF ARIZONA )
) SS.
COUNTY OF MARICOPA )
On this day of Au. j ys-t– , I 9i7 before me. the undersigned officer, personall y appeared. Stephen E. Renneckar wo acknowledged himsel f to be the Vice President of SunChase Estrella, Inc.. general partner of Estrella Sun, general partner of Sunchase Estrella Limited Partnership, a Delaware limited partnershi p. and that such capacity. being authorized so to do. executed the foregoing instrument for the pu rposes therein contained by signing the name
“”\”<( J’.,.,Q &. ‘{V\ . m
of the l imited partnership.
NOtaf\;
Public
0–
My Commission Expires: /
-o 6– 1’9 Notary Seal
5001 .0 llCADocs/Estrcllall/CCR/0501 97/AWO
EXHIBIT “A”
Master Plan
IIA”
EXHIBIT “B”
Land Initiallv Submitted
Neighborhood Designation:
The attached is Neighborhood I.
EXHIBIT “B”
SUNCHASE ESTRELLA – PARCEL 33
THAT PART OF SECTION 14 , TOWNSHIP 1 SOUTH, RANGE 2 WEST, OF THE GILA AND SALT RIVER BASE AND MERIDIAN, MARICOPA COUNTY, ARIZONA, MORE PARTICULARLY DESCRIBtD AS FOLLOWS:
COMMENCING AT THE NORTH QUARTER CORNER OF SAID SECTION 14; THENCE SOUTH 88 DEGREES 28 MINUTES 14 SECONDS WEST A DISTANCE OF 671. 42 FEET ALONG THE NORTH LINE OF SAID SECTION 14 TO A POINT ON A 5065.00 FOOT RADIUS NON-TANGENT CURVE, WHOSE CENTER BEARS NORTH 75 DEGREES 43 MINUTES 24 SECONDS EAST, SAID CURVE BEING THE WESTERLY RIGHT-OF-WAY LINE OF ESTRELLA PARKWAY, AS SHOWN ON ESTRELLA PHASE ONE MAP OF DEDICATION, RECORDED IN BOOK 318, PAGE 38, MARICOPA COUNTY RECORDS;
THENCE SOUTHEASTERLY, ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 07 DEGREES
07 MINUTES 26 SECONDS, A DISTANCE OF 629.77 FEET TO THE TRUE POINT OF BEGINNING,
THENCE AROUND A CURVE TO THE LEFT THROUGH A CENTRAL ANGLE OF 00 DEGREES
54 MINUTES 18.0 SECONDS AN ARC DISTANCE OF 80.00 FEET, A CHORD BEARING OF SOUTH
21 DEGREES 51 MINUTES 12.0 SECONDS EAST, A DISTANCE OF 80.00 FEET TO A POINT,
THENCE SOUTH 22 DEGREES 18 MINUTES 21.0 SECONDS EAST, .A DISTANCE OF 714. 18 FEET TO A POINT,
THENCE SOUTH 67 DEGREES 42 MINUTES 35. 7 SECONDS WEST, A DISTANCE OF 16.16 FEET TO A POINT I
THENCE SOUTH 67 DEGREES 41 MINUTES 39.0 SECONDS WEST, A DISTANCE OF 580.00 FEET TO A POINT,
THENCE SOUTH 10 DEGREES 43 MINUTES 36.0 SECONDS EAST, A DISTANCE OF 234.16 FEET TO A POINT I
THENCE SOUTH 22 DEGREES 18 MINUTES 21 .0 SECONDS EAST, A DISTANCE OF 83. 91 E”EET TO A POINT,
THENCE SOUTH 72 DEGREES 19 MINUTES 31. 0 SECONDS WEST, A DISTANCE Of 759. 95 E”EET TO A POINT,
THENCE NORTH 14 DEGREES 28 MINUTES 52.0 SECONDS WEST, A DISTANCE OF 43.87 FEET TO A POINT,
AROUND A CURVE TO THE LEFT, THROUGH A CENTRAL ANGLE OF 25 DEGREES 14 MINUTES
32. 0 SECONDS, AN ARC DISTANCE OF 506.64 FEET, A CHORD BEARING OF NORTH 27 DEGREES
06 MINUTES 08.0 SECONDS WEST, A DISTANCE OF 502.56 FEET TO A POINT,
THENCE NORTH TO A POINT, 39 DEGREES 43 MINUTES 24.0 SECONDS WEST, A DISTANCE OF 501.09 FEET
THENCE NORTH TO A POINT, 48 DEGREES 13 MINUTES 05.0 SECONDS WEST, A DISTANCE OF 214.01 FEET
THENCE NORTH TO A POINT, 26 DEGREES 39 MINUTES 56.0 SECONDS WEST, A DISTANCE OF 146.08 FEET
THENCE NORTH TO A POINT, 63 DEGREES 20 MINUTES 04.0 SECONDS EAST, A DISTANCE OF 102.90 FEET
THENCE SOUTH ‘!’O A POINT I 75 DEGREES 02 MINUTES 29.0 SECONDS EAST, A DISTANCE OF 135.59 FEET
THENCE EAST, A DISTANCE OF 71.00 FEET TO A POINT,
THENCE NORTH TO A POIN, 86 DEGREES 13 MINUTES 10.0 SECONDS EAST, A DISTANCE OF 909.98 FEET
THENCE NORTH 75 DEGREES 39 MINUTES 52.0 SECONDS EAST, A DISTANCE OF 92.89 FEET
TO A POINT,
THENCE NORTH TO A POINT, 60 DEGREES 56 MINUTES 43.0 SECONDS EAST, A DISTANCE OF 72.07 FEET
THENCE NORTH TO A POINT, 44 DEGREES 14 MINUTES 43.0 SECONDS EAST, A DISTANCE OF 264.10 FEET
THENCE NORTH 68 DEGREES 35 MINUTES 57.0 SECONDS EAST, A DISTANCE OF 140.00 FEET
TO THE TRUE POINT OF BEGINNING.
CONTAINING 1461949.64 SQUARE FEET OR 33.56 ACRES, MORE OR LESS.
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EXHIBIT “C”
Land Su b ject to An nexation
EXHIBIT “C”
LEGAL DESCRIPTION ESTRELLA – LEGAL 2
February 27, 1997
PARCEL 1
That part of Sections 1, 10, 1 1, 12, 13, 14, 15, 22, 23, 24, 25, 26, 27, 28, 33, 34, 35 and 36,
Township 1 South, Range 2 West, of the Gila and Salt River Meridian, Maricopa County, Arizona. more particularly described as follows:
Beginning at the Northeast Comer of said Section 1, as shown on the “Estrella Phase One, Map of Dedication”, as recorded in Book 318 of Maps, Page 38, Maricopa County Records;
Thence South 00 °20’21 ” West (measured), South 00°20’03” West (record), along the East line of said Section 1, a distance of 2,710.50 feet (measured), 2708.61 feet (record) to the East Quarter Corner of said Section 1;
Thence South 00°13’59” West (measured), South 00°14’18” West (record), continuing along the East line of said Section 1, a distance of 2,640.94 feet (measured), 2641.11 feet (record) to the Northeast Corner of said Section 12;
Thence South 00 °28’03” West (measured), South 00 °28’10” West (record), along the East line of said Section 12, a distance of 2,641.29 feet (measured) 2641.0 l feet (record) to the East Quarter Corner of said Section 12;
Thence South 00 ° 13’23” West (measured), South 00 °13’30” West (record), continuing along the East line of said Section 12, a distance of 2.646.70 feet to the Northeast Corner of said Section 13;
Thence South 00 °07’53” West, along the East line of said Section 13, a distance of 2,644.87 feet to the East Quarter Corner of said Se!ction 13;
Thence South 00 °13’33” West, continuing along the East line of said Section 13, a distance of 2,617.62 feet to the Northeast Corner of said Section 24;
Thence South 00° 13’33” West, along the East line of said Section 24, a distance of 2,653.28 feet to the East Quarter Corner of said Section 24;
Thence South 00 °17’47” West. continuing along the East line of said Section 24, a distance of 2,643.64 feet to the Northeast Comer of said Section 25;
Thence South 00°08’1 6″ West, along the East line of said Section 25, a distance of 2,640.90 feet to the East Quarter Corner of said Section 25;
Thence South 00 ° 12’04” West. continuing along the East line of said Section 25, a distance of
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C.Y:L
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Legal Description Estrella – Legal 2 February 27, 1997
Page 2 of 6
2,633.25 feet to the Northeast Corner of said Section 36;
Thence North 89° 13’00” West, along the North line of said Section 36, a distance of 1,624.40 feet to the Northwest Corner of the Northeast Quaner of the Northeast Quarter of the Northwest Quarter of the Northeast Quarter of said Section 36;
Thence South 00°31′ 11″ West, along the West line of the Northeast Quarter of the Northeast Quarter of the Northwest Quarter of the Northeast Quaner of said Section 36, a distance of 332.14 feet to the Southwest Corner thereof;
Thence South 89°15’58” East, along the South line of the Northeast Quarter of the Northeast Quaner of the Northwest Quarter of the Northeast Quarter of said Section 36, a distance of 325.17 feet to a point on the East line of the Northwest Quarter of the Northeast Quarter of said Section 36; •
Thence South 00°28’07” West, along said East line, a distance of 995.59 feet to the Southeast Corner of the Northwest Quarter of the Northeast Quarter of said Section 36;
Thence North 89 °24’5 l ” West, along the South line of the Northwest Quarter of the Northeast Quarter of said Section 36, a distance of 1,304.25 feet to a point on the North-South mid-section line of said Section 36;
Thence South 00 °40’22” West along said North-South mid-section line, a distance of 3,968.88 feet to the South Quarter Corner of said Section 36;
Thence North 89°36’54” West, along the South line of said Section 36, a distance of 2,638.53 feet to the Southeast Corner of said Section 35;
Thence North 89°36’09” West, along the South line of said Section 35, a distance of 2,633.38 feet to the South Quarter Corner of said Section 35;
Thence North 89°34’19” West, continuing along the South line of said Section 35, a distance of 2,644.84 feet to the Southeast Corner of said Section 34;
Thence North 89°29’43” West, along the South line of said Section 34, a distance of 2,637.81 feet to the South Quarter Corner of said Section 34;
Thence North 89°29’43” West. continuing along the South line of said Section 34, a distance of
964.18 feet to a point on the Northeasterly right-of-way line of “Rainbow Valley Road,” as recorded in Book 10 of Road Maps, Page 25 & 26, Maricopa County Records;
Legal Description Estrella – Legal 2 February 27, 1997
Page 3 of 6
Thence North 37°50’26” West. along the Northeasterly right-of-way line of said “Rainbow Valley Road,” a distance of 2.704.64 feet to a point on the East line of said Section 33;
Thence North 00°21’07” East, along said East line, a distance of 564.43 feet to the East Quarter Corner of said Section 33;
Thence North 89°49’56” West, along the East-West mid-section line of said Section 33, a distance of 442.93 feet to a point on the Northeasterly right-of-way line of said “Rainbow Valley Road”;
Thence North 37°50’26” West, along said Northeasterly right-of-way line of “Rainbow Valley Road,” a distance of 6,709.50 feet to a point on the East-West mid-section line of said Section 28;
Thence South 89°27’48” East, along said East-West mid-section line, a distance of 4,600.62 feet to the West Quarter Corner of said Section 27;
Thence North 00°28’09” East, along the West line of said Section 27, a distance of 2,657.12 feet to the Southwest Corner of said Section 22;
Thence North 00 °14’06” East, along the West line of said Section 22, a distance of 2,630.12 feet to the West Quarter Corner of said Section 22;
Thence South 89 ° 51’29” East, along the East-West mid-section line of said Section 22, a distance of 1,319.81 feet to the Southeast Corner of the West Half of the Northwest Quarter of said Section 22;
Thence North 00 °1 1’40” East. along the East line of the West Half of the Northwest Quarter of said Section 22, a distance of 2,641.50 feet to the Northeast Corner of the West Half of the Northwest Quarter of said Section 22;
Thence North 89°24’39” West, along the North line of the West Half of the Northwest Quarter of said Section 22, a distance of 1,321.54 feet to the Southwest Corner of said Section 15;
Thence North 00°03’52” East, along the West line of said Section 15, a distance of 2,651.85 feet to the West Quarter Corner of said Section 15, said point also being the Southwesterly Boundary Corner of said “Estrella Phase One, Map of Dedication;”
Thence North 0 l 0 27’57” East (measured), North 01 °27’59” East (record), continuing along the West line of said Section 15, a distance of 2,614.84 feet (measured), 2614.86 feet (record) to the Southwest Corner of said Section 1O;
Legal Description Estrella – Legal 2 February 27, 1997
Page 4 of 6
Thence North 02°27’13” East (measured), North 02°27’17” East (record), along the West line of said Section I 0, a distance of 2,633.92 feet (measured), 2,633.92 feet (record) to the West Quarter Comer of said Section 1O;
Thence North 02 °22’18” East (measured), North 02 °22’3 l ” East (record), continuing along the West line of said Section 10, a distD.Ilce of 2,635.09 feet (measured), 2,635.54 feet (recqrd) to the Northwest Comer of said Section 1O;
Thence South 89°13’00” East (measured), South 89 °12’35” East (record), along the North line of said Section 10, a distD.Ilce of 2,650.33 feet (measured), 2,650.49 feet (record) to the North Quarter Comer of said Section 1O;
Thence South 89°22’02” East (measured), South 89°21’52” East (record), continuing along the North line of said Section 10, a dist’1Ilce of 2,638.74 feet (measured), 2,639.03 feet (record) to the Northwest Comer of said Section 1 1;
Thence South 89°31’04” East (measured), South 89°31’03” East (record), along the North line of said Section 11, a distance of 2,649.70 feet (measured), 2,649.92 feet (record) to the North Quarter Comer of said Section 1 1;
Thence South 89°39’41 ” East (measured), South 89°39’05” East (record), continuing along the North l ine of said Section 1 1, a distD.Ilce of 2.649.36 feet (measured), 2,649.51 feet (record) to the Southwest Comer of said Section l ;
Thence North 00 °39’36” East (measured), North 00 °39’46” East (record), along the West line of said Section l , a distance of 2,606.21 feet (measured), 2,606.59 feet (record) to the West Quarter Comer of said Section 1;
Thence North 02°1 1’20” West (measured), North 02° 10’59” West (record), continuing along the West line of said Section 1, a distance of 2,694.65 feet (measured), 2,694.49 feet (record) to the Northwest Comer of said Section I ;
Thence North 89°37’33” East (measured), North 89° 37’44” East (record), along the North line of said Section l , a distance of 2,470.13 feet (measured) to the Southeast Comer of Section 36, Township 1 North, Range 2 West of the Gila and Salt River Meridian, Maricopa County, Arizona;
Thence North 89°43’37” East (measured), North 89°37’44” East (record), continuing along the North l ine of said Section 1. a d istD.Ilce of 70.26 feet (measured) to the North Quarter Comer of said Section 1;
Q:60001\ADMINl-16–04’G.W70
Legal Description Estrella – Legal 2 February 27, 1997
Page 5 of 6
Thence North 89°43’37” East (measured), North 89°46’12” East (record), continuing along the North line of said Section 1, a distance of 2,521.98 feet (measured), 2,521.62 feet (record) to the Point of Beginning.
Containing 10,067.869 Acres more or. less. PARCEL 2
That part of the Southwest Quarter of Section 34, Township 1 South, Range 2 West, of the Gila and Salt River Meridian, Maricopa County, Arizona, more particularly described as follows:
Beginning at the Southwest Corner of said Section 34;
Thence North 00°21’07” East, along the West line of said Section 34, a distance of 1,991 .83 feet to a point on the Southwesterly right-of-way line of “Rainbow Valley Road,” as recorded in Book 10 of Road Maps, Page 25 & 26, Maricopa County Records;
Thence South 37°50’26” East, along the Southwesterly right-of-way line of “Rainbow Valley Road.” a distance of 2,539.67 feet to a point on the South line of said Section 34;
Thence North 89°29’43” West, along said South line, a distance of 1,570.30 feet to the Point of Beginning.
Containing 35.902 Acres more or less. PARCEL 3
That part of the Southwest Quarter of Section 28, Township I South, Range 2 West, of the Gila and Salt River Meridian, Maricopa County, Arizona, more particularly described as follows:
Beginning at the Southwest Corner of said Section 28;
Thence North 00°08’04” East, along the West line of said Section 28, a distance of 2,641.56 feet to the West Quarter Corner of said Section 28;
Thence South 89°27’48” East, along the East-West mid-section line of said Section 28, a distance of 583.08 feet to a point on the Southwesterly right-of-way line of “Rainbow Valley Road,” as recorded in Book 10 of Road Maps, Page 25 & 26, Maricopa County Records;
Q:\46000 l\ADMIN\46-04SG. W70
Legal Description Estrella – Legal 2 February 27, 1997
Page 6 of 6
Thence South 37°50’26” East, along the Southwesterly right-of-way line of said “Rainbow Valley Road,” a distance of 3,329.90 feet to a point on the South line of said Section 28;
Thence South 89°51’39” West, along the South line of said Section 28, a distance of 2,632.04 feet to the Point of Beginning.
Containing 97.276 Acres more or less. PARCEL 4
That part of the North Half of Section 33, Township 1 South, Range 2 West, of the Gila and Salt River Meridian, Maricopa County, Arizona. more particularly described as follows:
Beginning at the West Quarter Corner of said Section 33;
Thence North 00°22’27” East, along the West line of said Section 33, a distance of 1,324.71 feet to the Northwest Corner of the South Half of the Northwest Quarter of said Section 33;
Thence South 89°59’09” East, along the North line of the South Half of the Northwest Quarter of said Section 33, a distance of 2,644.85 feet to a point on the North-South mid-section line of said Section 33;
Thence North 00 °31’52” East, along said Nort h-South mid-section line, a distance of 1,310.78 feet to a point on the Southwesterly right-of-way line of “Rainbow Valley Road,” as recorded in Book 10 of Road Maps, Page 25 & 26, Maricopa County Records;
Thence South 37°50’26” East, along the Southwesterly right-of-way line of said “Rainbow Valley Road,” a distance of 3,353.83 feet to a point on the East-West mid-section line of said Section 33;
Thence North 89°49’56” West, along said East-West mid-section line, a distance of 4,723.13 feet to the Point of Beginning.
Containing 143.742 Acres more or less. Containing 10,334.789 Acres Total more or less.
Q:\46000 IIADMIN\46-0450. W70
C!L
EXCEPT the following subdivided Parcels, legally described as follows which are specifically excluded from the annexable. property:
a) Estrella Parcel 8, according to Book 318 of Maps, page 39, records of Maricopa County, Arizona;
b) Estrella Parcel 9, according to Book 318 of Maps, Page 40, records of Maricopa County, Arizona;
c) Estrella Parcel 57, Amended, according to Book 329 of Maps, Page 12 recortj.s of Maricopa County, Arizona;
d) 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;
e) 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;
f) Estrella Parcel 34, according to Book 329 of Maps, Page 34, records of Maricopa County, Arizona;
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, Arizona;
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;
. k) Estrella Parcel 56A, according to Book 419 of Maps, Page 42 in Instrument No. 96- 0488725 records of Maricopa County, Arizona;
l) SunChase at Estrella Parcel Nos. 62-64, according to Book 438 of Maps, Page 42 in Instrument No. 97-0236401 records of Maricopa County, Arizona;
m) SunChase at Estrella Parcel No. 66, according to Book 442 of Maps, Page 3 in Instrument No. 97-0339182
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“‘ “”‘ ‘ …..Exhibit “C” Elliot Crossing
Keogh Engineering, Inc.
15650 N. Black Canyon Highway • Suite 245
Phoenix. Arizona 85023 • (602) 375-9363 FAX (602) 375-2473
Legal Description
Sun Chase Estrella Ltd. Partnership Our Job No. 18550
18 March 1996
A portion of the West half of Section 1 1, Township l South, Range 2 West of the Gila and Salt River Base and Meridian, Maricopa County, Arizona and more particularly described as follows:
Beginning at the West quarter corner of said Section 1 1, from which the Northwest corner of said Section 1 1, bears North 1° 14′ 39″ East, a distance of 2640.0 l feet from the last described point; thence South 74° 41′ 00″ East, a distance of 652.05 feet to a point on the northeasterly right of way line of Elliot Road as established by ESTRELLA PHASE ONE MAP OF DEDICATION according to the plat of record in Book 318 of Maps, Page 38, records of Maricopa County, Arizona and the TRUE POINT OF BEGfNNING of the herein described parcel; thence North 33° 55′ OB” West, a distance of 446.20 feet; thence North 43° 17′ 05″ East, a distance of 77.40 feet; thence North 9° 43′ 53″ West, a distance of 81.78 feet; thence North 21° 31′ 21″ West, a distance of 187.64 feet to a point of curve, concave southeasterly, having a radius of 170.00 feet; thence northeasterl y along the arc of said curve, through a central angle
of 74° 05′ 03″, an arc length of 219.81 feet; thence North 52° 33′ 42″ East, a distance of 3.48 feet to a point of curve, concave southeasterly, having a radius of 450.00 feet; thence northeasterly along the arc of said curve, through a central angle of 14° OJ’ 26″, an arc length of 110.40 feet; thence North 66° 37′ 08″ East, a distance of 32.83 feet to a point of curve, concave southerly, having a radius of 425.00 feet; thence easterly along the arc of said curve, through a central angle of 30° 16′ 52″, an arc, length of
224.61 feet; thence South 83° 06′ 00″ East, a distance of 153.28 feet to a point of curve, concave northerl y, having a radius of 250.00 feet; thence easterly along the arc of said curve, through a central
angle of 30° 02′ 24″, an arc length of 131.07 feet; thence North 66° 51′ 36″ East, a distance of 64.71 feet to a point on the westerly right of way line of San Gabriel as established by ESTRELLA PHASE ONE MAP OF DEDICATION according to the plat of record in Book 318 of Maps, Page 38, records of Maricopa County, Arizona; thence South 23° 47′ 04″ East and along said westerly right of way line, a distance of 137.93 feet to a point of curve, concave southwesterly, having a radius of 770.00 feet; thence southeasterly along the arc of said curve and continuing along said westerly right of way line, through a central angle of 13° 09′ 35″, an arc length of 176.85 feet; thence South 10° 37′ 29″ East and continuing along said westerly right of way line a distance of 347.73 feet; thence South 33° 08′ 51″ West and continuing along said westerly right of way line, a distance of 30.33 feet to a point on the northwesterly right of way line of Elliot Road as established by said ESTRELLA PHASE ONE MAP OF DEDICATION, said point lies on a curve, concave southeasterly, having a radius of 945.00 and whose center bears South 13° 43′ 02″ East from the last described point; thence southwesterly along the arc of said curve and along said northwesterl y right of way line, through a central angle of 20° 04′ 05″, an arc length of 330.99 feet; thence South 56° 12′ 53″ West and continuing along said Northwesterly right of way line, a distance of 382.25 feet to the TRUE POINT OF BEGINNING.
Said parcel contains 640,768 square feet or 14.710 acres, more or less.
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=j )\:5 3′-f 91J EXHIBIT 11C,11
LEGAL DESCRIPTION FOR
ESTRELLA MOUNTAIN RANCH
GOLF COURSE PARCEL
LYING WITHIN THE CITY OF GOODYEAR, ARIZONA AND BEING PARTICULARLY DESCRIBED AS FOLLOWS:
Com mencing at the Easterly Quarter Comer (GLO B.C. – 368) common to Sections 14 & 15, Townshi p 1 South, Range 2 West, of the Gila and Salt River Base and Meridian, Maricopa County, Arizona;
THENCE, South 30 degrees, 52 minutes, 33 seconds West a distance of 581 .56 feet to the POINT OF BEGINNING of the Parcel of land herein described as GOLF COURSE PARCEL;
THENCE, South 36 degrees, 31 m inutes, 30 seconds East a distance of 312.85 feet;
THENCE, South 85 degrees, 57 minutes, 21 seconds East a distance of 680.52 feet to the begi nning of a tangent curve;
THENCE. Thru left curve with radius of 631 .55 feet and a central angle of 09 degrees, 16 m i nutes, 13 seconds a distance of 102.18 feet, on said curve;
THENCE, South 1 1 degrees, 30 min utes, 33 seconds East a distance of 999.62 feet; THENCE, South 08 degrees, 53 m inutes, 03 seconds West a distance of 506.51 feet; THENCE, South 30 degrees, 47 minutes, 56 seconds West a distance of 80.02 feet; TH ENCE, South 60 degrees, 32 m inutes, 25 seconds East a distance of 262.95 feet;
THENCE, South 29 degrees, 27 m i nutes, 35 seconds West a distance of 1366.43 feet: THENCE, North 04 degrees, 07 m i nutes, 45 seconds West a distance of 881 .85 feet; THENCE, North 38 degrees, 33 min utes, 14 seconds West a distance of 688.30 feet; THENCE, North 53 degrees, 33 m inutes, 52 seconds West a distance of 236.47 feet: THENCE, North 19 degrees, 30 minutes, 1 1 seconds West a distance of 102.28 feet;
THENCE, North 38 degrees, 48 minutes, 57 seconds East a distance of 321.50 feet;
THENCE, South 06 degrees, 17 m inutes, 28 seconds East a distance of 1 18.22 feet;
THENCE, South 03 degrees, 27 minutes, 12 seconds West a distance of 205.53 feet; THENCE, South 73 degrees, 13 minutes, 33 seconds East a distance of 660.21 feet; THENCE, South 31 degrees, 04 minutes, 07 seconds East a distance of 120.86 feet;
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THENCE, South 77 degrees, 41 minutes, 03 seconds East a distance of 193.53 feet; THENCE, North 45 degrees, 56 minutes, 16 seconds East a distance of 103.38 feet; THENCE, North 30 degrees, 47 minutes, 56 seconds East a distance of 80.02 feet; THENCE, South 60 degrees, 32 m inutes, 25 seconds East a distance of 261 .08 feet; THENCE, North 29 degrees, 27 min utes, 35 seconds East a distance of 70.55 feet; THENCE, South 67 degrees, 43 min utes, 16 seconds East a distance of 221.75 feet; THENCE, South 15 degrees, 05 min utes, 54 seconds West a distance of 888.23 feet: THENCE, South 18 degrees, 43 minutes, 53 seconds West a distance of 634.43 feet; THENCE, South 86 degrees, 00 min utes, 55 seconds West a distance of 275.26 feet; THENCE, South 09 degrees, 05 m inutes, 00 seconds West a distance of 536.48 feet; THENCE, South 52 degrees, 24 minutes, 06 seconds West a distance of 378.01 feet; THENCE, South 71 degrees, 44 minutes, 31 seconds West a distance of 195.82 feet; THENCE, North 68 degrees, 20 minutes, 58 seconds West a distance of 157.49 feet; TH ENCE, North 00 degrees, 33 m inutes, 43 seconds West a distance of 1 15.81 feet; TH ENCE. North 40 degrees, 18 m i nutes, 1 6 seconds West a distance of 52.13 feet; TH ENCE, South 66 degrees, 08 m i nutes, 1 1 seconds West a distance of 216.30 feet;
THENCE, North 77 degrees, 29 m inutes, 08 seconds West a d istance of 102.95 feet; TH ENCE. North 30 degrees, 49 m i nutes, 54 seconds East a distance of 883.95 feet; TH ENCE. North 71 degrees, 24 minutes, 50 seconds East a distance of 375.02 feet; TH ENCE, South 32 degrees, 05 m inutes, 53 seconds West a distance of 960.13 feet: THENCE, South 40 degrees, 18 m inutes, 1 6 seconds East a distance of 52.13 feet; THENCE, South 66 degrees, 08 m i nutes, 1 1 seconds West a distance of 247.48 feet; THENCE, North 77 degrees, 29 m in utes, 08 seconds West a d istance of 154.14 feet; THENCE, South 00 degrees, 58 min utes, 59 seconds West a distance of 35.65 feet; THENCE, South 30 degrees, 49 minutes, 41 seconds West a distance of 736.49 feet; THENCE, South 17 degrees. 04 m inutes, 09 seconds West a distance of 166.57 feet:
THENCE, South 35 degrees, 27 m inutes, 18 seconds West a d istance of 432.26 feet; •
2 Page 10 of 14
THENCE, South 30 degrees, 22 minutes, 09 seconds West a distance of 446.73 feet; THENCE, North 74 degrees, 35 minutes, 16 seconds West a distance of 691.95 feet; THENCE, North 43 degrees, 08 minutes, 33 seconds West a distance of 826.98 feet; THENCE, North 76 degrees, 41 minutes, 51 seconds East a distance of 226.04 feet; TH ENCE, North 21 degrees, 25 minutes, 49 seconds West a distance of 144.55 feet;
TH ENCE, North 22 degrees, 30 min utes, 15 seconds East a distance of 313 .91 feet; THENCE, North 07 degrees, 09 minutes, 55 seconds. East a distance of 672.68 feet; THENCE, North 24 degrees, 28 minutes, 10 seconds West a distance of 556.17 feet; THENCE, North 42 degrees, 56 min utes, 43 seconds East a distance of 184.66 feet; THENCE, South 69 degrees, 38 minutes, 24 seconds East a distance of 270.64 feet; THENCE, South 37 degrees, 12 min utes, 41 seconds East a distance of 355.34 feet; THEN CE, South 62 degrees, 58 m i nutes, 28 seconds East a distance of 1024.37 feet; THENCE, South 17 degrees, 04 m inutes, 09 seconds West a distance of 25.43 feet;
THENCE, South 62 degrees, 22 minutes, 29 seconds East a distance of 481 .42 feet;
THENCE, South 30 degrees, 49 minutes, 41 seconds West a distance of 153.78 feet; THENCE, North 68 degrees, 51 m inutes, 08 seconds West a distance of 347.14 feet; THENC E, South 72 degrees, 13 m inutes, 43 seconds West a distance of 1 10.19 feet; TH ENC E, South 20 degrees, 59 m i nutes, 04 seconds West a distance of 367.61 feet; THENCE, South 36 degrees, 05 m i nutes, 09 seconds West a distance of 304.34 feet; THENCE, South 23 degrees, 03 minutes, 26 seconds West a distance of 424.79 feet; THENCE, North 66 degrees, 22 minutes, 00 seconds West a distance of 941 .05 feet; THENCE. South 76 degrees, 41 m inutes, 51 seconds West a distance of 226.04 feet; TH ENCE, N orth 56 degrees, 12 m i nutes, 42 seconds West a distance of 233.00 feet; THENC E, North 07 degrees, 00 mi nutes, 35 seconds East a distance of 1 133.10 feet; THENCE, North 08 degrees, 35 mi nutes, 28 seconds East a distance of 953.91 feet; THENCE, South 75 degrees, 48 minutes, 51 seconds East a distance of S 18.02 feet;
3 Page 11 of 14
THENCE, North 45 degrees, 45 minutes, 51 seconds East a distance of 155.59 feet;
THENCE, From a point on right curve with a radius of 548.00 feet and a radial bearing South 05 degrees, 00 minutes, 02 seconds West and a central angle of 14 degrees, 02 minutes, 40 seconds a distance of 134.33 feet, on said curve;
THENCE, South 70 degrees, 57 m inutes, 18 seconds East a distance of 34.81 feet; THENCE, North 88 degrees, 39 m inutes, 33 seconds East a distance of 258.53 feet; THENCE, North 59 degrees, 06 minutes, 19 seconds East a distance of 817.71 feet; THENCE, North 28 degrees, 53 m i nutes, 29 seconds East a distance of 666.57 feet; THENCE, North 21 degrees, 41 m inutes, 43 seconds East a distance of 673.53 feet; THENCE, North 75 degrees, 17 m inutes, 26 seconds East a distance of 53.03 feet; THENCE, South 77 degrees, 09 minutes, 55 seconds East a distance of 508.64 feet; THENCE, North 52 degrees, 08 min utes, 47 seconds East a distance of 91.80 feet; THENCE, North 85 degrees, 45 m in utes, 15 seconds East a distance of 726.92 feet; THENCE, South 71 degrees, 42 m i nutes, 16 seconds East a distance of 234.38 feet; THENCE. South 15 degrees, 28 m i nutes, 34 seconds East a distance of 166.60 feet; THENCE, South 40 degrees, 36 m i nutes, 47 seconds West a distance of 455.32 feet; THENCE, South 15 degrees, 42 min utes, 54 seconds West a distance of 423 .34 feet; THENCE, South 36 degrees, 43 m i nutes, l 6 seconds East a d istance of l 71 .90 feet; THENCE, South 27 degrees, 23 m in utes, 41 seconds West a distance of 279.79 feet; THENCE, South 75 degrees, 55 m inutes, 38 seconds West a distance of 1 ,021 .88 feet;
THENCE, South 65 degrees, 20 m i n utes, 33 seconds West a distance of 446.84 feet; THENCE, South 19 degrees, 05 mi nutes, l 9 seconds West a distance of 128.48 feet; THENCE. South 05 degrees, 47 m in utes, l l seconds West a distance of 264.71 feet; THENCE, South 70 degrees, l 7 m inutes, l 5 seconds West a distance of 390.75 feet; THENCE, North 41 degrees, 50 m inutes, 40 seconds West a distance of 919.59 feet; THENCE, South 88 degrees, 39 m inutes, 33 seconds West a distance of 258.53 feet; THENCE, North 44 degrees, 44 minutes, 37 seconds East a distance of 951 .33 feet;
5 Page 12 of 14
TIIENCE, North 28 degrees, 53 minutes, 29 seconds East a distance of 564.64 feet; THENCE, North 21 degrees, 41 minutes, 42 seconds East a distance of 454.05 feet; THENCE, North 56 degrees, 0 I minutes, 33 seconds East a distance of 410.82 feet; THENCE, North 82 degrees, 31 m inutes, 06 seconds East a distance of 653.45 feet; THENCE, South 49 degrees, 36 min utes, 36 seconds East a distance of 152.95 feet;
THENCE, South 83 degrees, 1 1 minutes, 28 seconds East a distance of 58.31 feet; THENCE, North 71 degrees, 44 minutes, 43 seconds East a distance of 659.37 feet;
THENCE, South 71 degrees, 33 minutes, 02 seconds East a distance of 530.27 feet; on said l ine: to the POINT OF BEGINNING contain i ng 210.0 acres, more or less.
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EXHIBIT “D”
Initial Use Rest rictions
The following Use Restrictions shall apply to all of the Properties until such time as they are amended, modified, repealed or limited in accordance with the procedures set forth in Article III of the Declaration.
1. General. The Properties shall be used only for single-family residential, recreational, and related purposes (which may include, without limitation, an information center and/or a sales office for any real estate broker retained by the Declarant to assist in the sale of property described on Exhibits “B” or “C,” offices for any property manager retained by the Association, or business offices for the Declarant or the Association) consistent with this Declaration and any Supplemental Declaration.
2. Restricted Activities. The following activities are prohibited within the Properties unless expressly authorized by, and then subject to such conditions as may be imposed by, the Board of Directors, or, if so specified, the Reviewer:
(a) Antenna. Unless otherwise permined by law, antennas, dishes, or other apparatus for the transmission, reception, or communication of television, radio, satellite, or other signals shall be located in the side or rear yard, installed adjacent to the residence, and integrated with the residential structure and landscaping. Dishes shall not exceed 39.36 inches in diameter. Any such devices shall be screened or landscaped from view from the street and adjacent Units.
(b) Burning. Outside burning of trash, leaves, debris or other materials, except during the normal course of constructing a dwelling on a Unit;
(c) Business Activity. Any business, trade, garage sale, moving sale, rummage sale, or similar activity, except that an Owner or occupant residing in a Unit may conduct business activities within the Unit so long as the Owner first obtains wrinen permission from the Board. Such approval shall be conditioned upon the following restrictions: (i) the business must be carried on by a member or members of the family residing in the Unit; (ii) the business is clearly incidental and secondary to the use of the Unit for residential purposes and occupies no more than 25% of the usable area within the Unit; (iii) no one other than the resident(s) of the Unit and not more: than one employee shall be employed in the business at the Unit;(iv) the existence or operation of the business activity is not apparent or detectable by sight, sound, or smell from outside the Unit; (v) the business activity is l imited to the hours between 7:00 a.m. and 9:00 p.m.; (vi) the business activity conforms to al l zoning requirements for the Properties; (vii) the business activity does not involve regular visi tat ion of the Unit by clients, customers, suppliers, or other business invitees or door-to-door solicitation of residents of the Properties; (viii) the street address of the home office is not i ncl uded in any off-site signs, advertising, or printed material; and (ix) the business activity is consistent with the residential character of the Properties and does not constitute a nuisance, or a hazardous or offensive use, or threaten the
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security or safety of other residents of the Properties, as may be detennined in the sole discretion of the Board.
The terms “business” and “trade,” as used in this provision, shall be construed to have their ordinary, generally accepted meanings and shall include, without limitation, any occupation, work, or activity undertaken on an ongoing basis which involves the provision of goods or services to persons other than the provider’s family and for which the provider receives a fee, compensation, or other form of consideration, regardless of whether: (i) such activity is engaged in full or part-time, (ii) such activity is intended to or does generate a profit, or (iii) a license is required.
The leasing of a Unit shall not be considered a business or trade within the meaning of this subsection. This subsection shall not apply to any activity conducted by the Declarant or a Builder approved by the Declarant with respect to its development and sale of the Properties or its use of any Units which it owns withi n the Properties, including the operation of a timeshare or similar program;
(d) Carports & Garages. Conversion of any carport or garage to finished space for use as an apartment or other integral part of the living area on any Unit without prior approval of the Reviewer pursuant to Article IV;
(e) Disturbances. Any activity which emits foul or obnoxious odors outside the Unit or creates noise or other conditions which tend to disturb the peace or threaten the safety of the occupants of other Units;
(t) Drainage. Obstruction or rechanneling of drainage flows after location and installation of drainage swales, storm sewers, or storm drains, except that the Declarant and the Association shall have such right; provided, the exercise of such right shall not materially diminish the value of or unreasonably interfere with the use of any Unit without the Owner’s consent;
(g) Equipment. Placing, operating, or maintaining machinery or equipment of any kind upon any Unit except: (i) such machinery or equipment as is usual and customary in connection with the use, maintenance or construction (during the period of construction) of a building, appurtenant structures, or improvements thereon, (ii) that which Declarant or the Association may require for the development, operation, and maintenance of the Properties, or
(iii) otherwise previously approved by the Reviewer;
(h) Exterior Items. Any construction, erection, or placement of any thing, permanently or temporarily, on the outside portions of the Uni t, whether such portion is improved or unimproved, except in strict compliance with the provisions of Article IV of the Declaration. This shall include, without l imitation, obtaining the prior written approval of the Reviewer in accordance with the proced ures of Article IV and the Design Guidelines. such approval shall be subject to the following criteria:
(i) Artificial Vegetation – Artificial vegetation, plants, statuary, or decorations of any type located anywhere on a Unit which is visible from the streets, sidewalks, or common area,
Reviewer,
(ii) Awnings – Awnings are not permitted unless approved in advance by the
(iii) Basketball goals – Permanently mounted or sleeve-set goals are prohibited in front or side yards. Rear yard installation may be approved by the Reviewer in accordance with Article IV and the Design Guidelines, provide that the goals shall be located near the main dwelling structure to reduce the visual impact to adjacent Units and a minimum of 15 feet shall be maintained from any perimeter wall to the pole. All non-clear surfaces, including the backboard, metal supports and pole shall be painted to match the house color. Portable basketball goals may be permitted in front and side yards while in use, provided that they are stored so as not to be visible from the street or adjacent Units while not in use,
(iv) Clotheslines – Clotheslines or other outside facilities for drying clothes shall not be permitted without Reviewer approval and, if approved, shall be placed exclusively within a fenced rear yard or otherwise screened from view of the street and adjacent Units,
(v) Disposable Materials – All disposable items, garbage cans, wood piles, or other things shall be located or maintained i n the enclosed garage or be in the rear yard and screened from view of the street or adjacent Units,
(vi) Driveways – Expanding or widening driveways shall not be undertaken without Reviewer approval and in no case shall the width of the pavement exceed the width of the garage of the residence,
(vii) Fences – Any fences, hedges, walls or animal pens shall be approved by the Reviewer and be located in the rear yard,
(viii) Flag poles – Freestanding flagpoles shall not be permitted within the Properties except by a Builder on a temporary basis at a model home which shall be removed upon the_ sale of all of the Builder’s residential Units. Owners may display flags mounted on the house or garage with brackets, provided that such displays are consistent with any provisions of the Design Guidelines are requirements of the Reviewer,
(ix) Fountains – Fountains, ponds, and reflecting pools shall be prohibited in front or side yards and may be permitted in rear-yards if such are consistent with the requirements of the Design Guidelines and the requirements of the Reviewer,
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(x) Gazebos & Ramadas – Gazebos and Ramadas shall be prohibited in front or side yards and may be permitted in rear-yards if such are consistent with the requirements of the Desi gn Guidelines and the requirements of the Reviewer,
(xi) Gravel – Artificially colored rock, gravel, or stone is not allowed (natural colored rock in earth tones approved by Reviewer or in the Design Guidelines is allowed), except as permitted in the Design Guidelines and approved by the Reviewer,
(xii) Lights – Exterior lights which illuminate or shine upon adjacent Units or the Common Area shall not be permitted, and
(xiii) Sculptures & Metal Work – Sculptures made of natural or man-made materials, metal work (iron or otherwise), or similar items shall not be permitted on a Unit if visible from the street or adjacent property unless approved by the Reviewer or permitted under the Design Guidelines;
(i) Firearms. Discharge of firearms; provided, the Board shall have no obligation to take action to prevent or stop such discharge;
U) Fireworks. Use and discharge of firecrackers and other fireworks;
(k) Fuel Storage. On-site storage of gasoline, heating, or other fuels, except that a reasonable amount of fuel may be stored on each Unit for emergency purposes and operation of lawn mowers and similar tools or equipment, and the Association shall be permitted to store fuel for operation of maintenance vehicles, generators, and similar equipment;
(I) Garbage. Accumulation of rubbish, trash, or garbage except between regular garbage pick ups, and then only in approved containers;
(m) Hobbies. Pursuit of hobbies or other activities which tend to cause an unclean, unhealthy or untidy condition to exist outside of enclosed structures on the Unit;
(n) Laws. Any activity which violates local, state or federal laws or regulations; however, the Board shall have no obligation to take enforcement action in the event of a violatio”Q;
(o) Nat u ral Conditions. Any act1v1t1es which materiall y disturb or destroy the vegetation, wildlife, wetlands, or air qual i ty within the Properties or which use excessive amounts of water or which result in unreasonable levels of sound or light pollution or which uses or disturbs the Natural Preserve Areas;
(p) Noise. Use or discharge of any radio, loudspeaker, horn, whistle, bell, or other sound device so as to be audible to occupants of other Units, except alarm devices used
exclusively for security purposes;
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(q) Noxious Activities. Any noxious or offensive activity which in the reasonable determination of the Board tends to cause embarrassment, discomfort, annoyance, or nuisance to persons using the Common Area or to the occupants of other Units, including the keeping of any thing or condition upon a Unit which shall induce, breed, or harbor infectious plant diseases or noxious insects;
(r) Patios. Front yard patios may be approved is consistent with the Design Guidelines and the requirements of the Reviewer, provided that they are not used to maintain cooking grills, barb-b-que equipment, picnic tables, and related or similar items which shall be maintained in rear yards and out of view from the street;
(s) Parking. Owners, occupants, and guests are;
(i) prohibited from parking on public or private streets or thoroughfares within the Properties,
(ii) prohibited from parking motor vehicles classed by manufacturer rating as exceeding 3/.-ton, commercial vehicles or equipment, mobile homes, recreational vehicles, golf carts, boats and other watercraft, trailers, stored vehicles or inoperable vehicles in places other than enclosed garages; provided, pickup trucks less than 3/.-ton with camper shells not exceeding seven feet in height measured from ground level and mini-motor homes not exceeding seven feet in height and 18 feet in length shall be exempt from this provision if parked in garages, carports, residential driveways or other designated parking areas,
(iii) prohibited from parking or storing any vehicle on the front or rear yard area,
(iv) for purposes of this section, a vehicle shall be considered “disabled” if it does not have a current license tag or is obviously inoperable. A vehicle shall be considered “stored” if it remains on the Properties for five (5) consecuti ve days or longer without the prior written permission of the Board,
(v) construction, service and delivery vehicles shall be exempt from this provision during daylight hours for such period of time as is reasonably necessary to provide service or to make a dlivery to a Unit or the Common Area;
(t) Pets. Raising, breeding or keeping of animals, livestock, or poultry of any kind, except that a reasonable number of dogs, cats, or other usual and common household pets may be permitted in a Unit; however, those pets which are permitted to roam free, or, in the sole discretion of the Board, make objectionable noise, endanger the health or safety of, or constitute a nuisance or inconvenience to the occupants of other Units shall be removed upon request of the Board. If the pet owner fails to honor such request, the Board may remove the pet. No structure for the care, housing, or confinement of any permined pet shall be visible from adjacent Units. Dogs shall be kept on a leash or otherwise confined in a manner acceptable to the Board
whenever outside the Unit. Persons walking pets shall carry a hand held shovel or other instrument designed for removing animal excrement from the ground with them at all times and shall remove the pet’s excrement from the Properties. Pets shall be registered, licensed and inoculated as required by law;
(u) Pruning. Allowing a tree, shrub, or planting of any kind to overhang or encroach upon any public right-of-way, bicycle path, or any other pedestrian way from ground level to a height of eight (8) feet without the prior written approval of the Reviewer;
(v) Security Devices. Security devices which are visible from the street, sidewalk, or common area, including, without limitation, burglar bars for windows and doors except as may be permitted by the Design Guidelines and consistent with the requirements of the Reviewer;
(w) Signs. Posting of signs of any kind except: (i) those required by law, including posters, circulars and billboards; and (ii) professionally lettered “for rent” or “for sale” signs, including builder signs, lender signs, and subdivision signs may be displayed on a Unit being offered for lease or for sale if in accordance with any restrictions in size, number, coloring, lettering and placement of signs as may be adopted by the Board and the Architectural Review Committee and if approved in advance by the Architectural Review Committee;
(x) Solar Equipment. Installation of solar energy equipment which is visible from the street, sidewalk, or common area except as may be permitted by the Design Guidelines and consistent with the requirements of the Reviewer;
(y) Subdivision. Subdivision of a Unit into two or more Units, changing the boundary lines of any Unit after a subdivision plat including such Unit has been approved and filed in the Public Records, or applying for rezoning, variances, or use permits, except that the Declarant shall be permitted to subdivide, replat, or apply for rezoning, variances, or use permits for Units which it owns;
(z) Timesharing. Use of any Unit for operation of a timesharing, fraction-sharing, or similar program whereby the right to exclusive use of the Unit rotates among participants in the program on a fixed or floating time schedule over a period of years, except that Declarant and its assigns may operate such a program with respect to Units which it owns;
(aa) Walkways. Construction or installation of walkways or paths, whether pervious or impervious material, shall not be pennined except as pennined by the Design Guidelines and consistent with the requirements of the Reviewer;
(bb) Wild Animals. Capturing, trapping or killing of wildlife within the Properties, except in circumstances posing an imminent threat to the safety of persons using the Properties;
(cc) Window Air-conditioners. Window air-conditioning units shall be prohibited within the Properties.
(dd) Window Coverings. Placing or permitting to remain on any window of a dwelling unit an external window covering or reflective covering without the prior written consent of the Reviewer; and
(ee) Yard Debris. Dumping of grass clippings, leaves or other debris, petroleum products, fertilizers, or other potentially hazardous or toxic substances in any drainage ditch, stream, pond, or lake, or elsewhere within the Properties, except that fertilizers may be applied to landscaping on Units provided care is taken to minimize runoff, and Declarant and Builders may dump and bury rocks and trees removed from a building site on such building site;
3. Prohibited Conditions. The following shall be prohibited within the Properties:
(a) Dangerous Activities. Plants, animals, devices or other things of any sort whose activities or existence in any way is noxious, dangerous, unsightly, unpleasant, or of a nature as may diminish or destroy the enjoyment of the Properties;
(b) Dilapidated Items. Structures, equipment or other items on the exterior portions of a Unit which have become rusty, dilapidated or otherwise fallen into disrepair;
(c) Irrigation. Sprinkler or irrigation systems or wells of any type which draw upon water from lakes, creeks, streams, rivers, ponds, wetlands, canals, or other ground or surface waters within the Properties, except that Declarant and the Association shall have the right to draw water from such sources; and
(d) Sheds and Out-buildings. Garden sheds, storage buildings, or similar structures shall not be constructed or maintained within the Properties.
4. Leasing of Units. “Leasing,” for purposes of this Paragraph, is defined as regular, exclusive occupancy of a Unit by any person, other than the Owner for which the Owner receives any consideration or benefit, including, but not limited to, a fee, service, gratuity, or emolument. No portion of a Unit but for the entire Unit, together with any improvements thereon, may be leased, and then only to a single family or person. All leases shall be in writing. The Board may require a minimum lease term, which requirements may vary from Neighborhood to Neighborhood. Notice of any lease, together with such additional information as may be required •by the Board, shall be given to the Board by the Unit Owner within 10 days of execution of the lease. The Owner must make available to the lessee copies of the Declaration, By-Laws, and the Use Restrictions.
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EXHIBIT “E”
Rules of Arbit ration
I . Claimant shall submit a Claim to arbitration under these Rules by g1vmg 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 Properties, 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 l ikely 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 Properties 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.
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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 argwnents 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. Ifthe 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. Ifany 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.
complete.
12. The Arbitrator shall declare the hearings closed when satisfied the record is
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.
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.