Wind Drift
Wind Drift CC and Rs
See note**
**This copy of the Wind Drift Covenants, Conditions and Restrictions is not the "official" copy as the typos and misspelled words have been corrected.**
RECITALS: In accordance with the purpose above declared, Declarant intends to impose upon the Property, as the same is defined herein, certain covenants, conditions, restrictions, assessments, charges, servitude’s, liens, reservations, and easements; and
Declarant intends, without obligation to do so, to develop, or to cause or permit others to develop certain portions of the Property (which development may be in stages) into one or more planned communities, such communities collectively to be known as "Wind Drift"; and
As part of the development of the described lands, Declarant intends, without obligations to do so, to develop, or to cause or permit to be developed by others, one or more communities upon certain land which, as of the date of recordation of this Declaration, is owned by Declarant and shall initially comprise the Property subject hereto; and it is intended, without obligation to do so, that other lands will be added to the Property; and
As part of the development of the aforesaid lands, Declarant, without obligation to do so, may, or may cause or permit others, to record various subdivisions plats on portions of the Property; to reserve and establish general and restricted common areas and easements on portions of the Property; to dedicate portions of the Property to the public for streets, roadways, drainage, utilities, parks and other public use; and to record various Declarations adding property to the Property, which Declarations will designate the property subject thereto and which may set forth additional covenants, conditions, restrictions, assessments, charges, servitude’s, liens, reservations and easements applicable to such portions of the Property; and
Declarant further desires to establish for its own benefit and for the mutual benefit of all future Owners or Occupants of the Property, or any part thereof, certain easements and rights in, over and upon said Property and certain mutually beneficial restrictions and obligations with respect to the proper use, conduct and maintenance thereof; and
Declarant desires and intends that the Owners, Mortgagees, beneficiaries and trustees under trust deeds, Occupants and all other persons hereafter acquiring an interest in Property shall at all times enjoy the benefits of, and shall hold their interests subject to, the rights, privileges, covenants, conditions, restrictions, assessments, charges, servitude’s, liens, reservations and easements hereinafter set forth, all of which shall run with the land and be binding upon the said Property and upon all persons having or acquiring any right, title or interest in or to said Property, or any part thereof; and the same shall inure to the benefit of each owner thereof; and all of which are intended to promote and protect the cooperative use, conduct and maintenance of such Property and are established for the purpose of enhancing and protecting the value, desirability and attractiveness thereof.
DECLARATION
DECLARANT HEREBY DECLARES that for the mutual benefit of all the Property described above and as defined herein, and all those persons now or hereafter holding interests in the Property, and in considerations of and to accomplish the purposes stated in the foregoing recitals, which are incorporated by this reference, the Property is hereby encumbered with and subjected to the covenants, conditions, restrictions, assessments, charges, servitude’s, liens, reservations, and easements hereinafter set forth (herein collectively called "Covenants"), which shall run with the land and title to the Property, and all of which are for the purpose of enhancing and protecting the value, desirability and attractiveness of the Property. These Covenants shall be binding upon the Property and the Owners thereof and other persons holding or acquiring any right, title or interest in the Property from and after the date of recordation of this Declaration, and shall inure to the benefit of each Owner thereof. Declarant hereby makes all conveyances of the Property or portions thereof or interests therein subject to the Covenants herein set forth whether or not expressly so provided in any instrument of conveyance; and by accepting deeds, leases, easements or other grants, or by conveyance of any portion of or interest in the Property, the Owners and other transferees, for themselves and their heirs, executors, administrator, trustees, personal representatives, successors and assigns, each agree that they take their interest in the Property subject to, and each shall be personally bound by, all of the terms and Covenants (including but not limited to the obligation to pay assessments and charges) hereinafter set forth:
ARTICLE I
Definitions
As used in this Declaration and unless otherwise defined herein or the context requires otherwise, the singular shall included the plural, the plural includes the singular, words or one gender shall include all genders, and the following terms shall have the meaning stated:
1.01 "Annexable Property" means any real property and all improvements thereon that may be added to and included in the Property by Master Declaration Supplement, which may include any real property contiguous to the Property is originally described or supplemented, or separated from it only by public lands or right-of-way easement.
1.02 "Annual Assessment" mans the charges levied and assessed each year pursuant to Article V below.
1.03 "Architectural Committee" means the committee of that name created hereby pursuant to Article VIII below.
1.04 "Architectural Rules" means the rules, guidelines and standards adopted by the Architectural Committee, as those rules may be amended from time to time.
1.05 "Articles" means the articles of incorporation of the Association as the same may be amended or supplemented from time to time.
1.06 "Assessable Property" means the entire Property, except such part or parts thereof as may from time to time constitute Exempt Property.
1.07 "Assessment Period" means the period of time determined pursuant to Article V below.
1.08 "Assessment Lien" mans any lien created and imposed by Article V below.
1.09 "Association" means Wind Drift Master Community Association, its agents, successors and assigns, which Declarant, at its option, may cause to be incorporated under the laws of the State of Arizona as a nonprofit corporation.
1.10 "Association Land" means such part of parts of the Property, together with the buildings and other improvements thereon, as may be owned at any time by the Association, for so long as the Association is the Owner thereof.
1.11 "Board" means the board of directors of the Association.
1.12 "Bylaws" means the bylaws of the Association.
1.13 "Common Areas" means those areas of land shown as Tracts, A, B, and C on the recorded plat of the Property and intended to be devoted to the common use and enjoyment of the Owners of the Property.
1.14 "Condominiums" means a Unit or Lot in a horizontal property regime as defined by Arizona law, together with all appurtenant rights and property, including an interest in all common elements.
1.15 "Condominiums Development" means a horizontal property regime.
1.16 "Covenants" mans the covenants, conditions, restrictions, charges, servitude’s, liens, encumbrances, reservations, and easements contained in this Declaration and all amendments and supplements to it.
1.17 "Declarant" means the Person named as such on page one of this instrument, and all successors and assigns of Declarant’s rights and power hereunder.
1.18 "Declaration" means this instrument, and all amendments and supplements to it that are duly recorded.
1.19 "Declaration Supplement": See Master Declaration Supplement.
1.20 "Designee" means a person any building or part thereof situated upon a Lot and intended for use and occupancy as a place of dwelling a Single Family.
1.21 "Dwelling Unit" means any building or part thereof situated upon a Lot and intended for use and occupancy as a place of dwelling by a Single Family.
1.22 "Exempt Property" means:
A. All land and improvements in the Property owned by or dedicated to a public or governmental authority for so long as the public or governmental authority is the owner or beneficiary thereof, except that a Lot with a Land Use Classification of School Use, Municipal Use, or Park Use is not Exempt Property unless such exemption is otherwise indicated in the applicable Tract Declaration.
B. All Association Land.
C. Any and all areas designated on an approved and recorded subdivision plat as an area to be used in common by the Owners and Occupants of such subdivision.
1.23 "First Mortgage": See Mortgage.
1.24 "Lake" means the lake shown on the Wind Drift plat as Tract A and on the Master Development Plan for Wind Drift, including the bottoms and sides of the Lake, and the entire body of water so far as it shall contiguously extend at a particular time. The Lake shall be a part of the Common Area, although portions of the Lake may be on Lots and Parcels. Declarant intends to reserve to itself for conveyance to the Association an easement for that portion of the Lake located on Lots and Parcels.
1.25 "Lake Access Area" means Common Area and public easements adjacent to the Lake where permitted users of the Lake may have access to the Lake for boating and other recreational uses.
1.26 "Lake Easement Line" means that fixed boundary, as established by a recorded instrument, located on each Lakefront Lot.
1.27 "Lake Facilities" means docks, wharves, floats, slips, ramps, piers, landings, pumping equipment, and related piping, meters, fixtures and other structures or equipment designed for use with and for access to the Lake.
1.28 "Lakefront" means abutting the Lake, and a Lot that has a portion of its boundary on or in the Lake, and the boundary of Tract A.
1.29 "Lot" means any plot of land shown and defined as one unit on the recorded Plat of the Property, with the exception of the Common Area, or on any subsidiary subdivision plat or any re-subdivision plat and also any plot of land defined as one unit for assessment or real property taxes by the appropriate public taxing official, including a Condominium.
1.30 "Maintenance Charge" shall mean any and all costs assessed or charged to Owners or others pursuant to this Declaration for maintenance.
1.31 "Master Declaration Supplement" means the instrument defined in section 2.04.
1.32 "Master Development Plan" means the development plan for Wind Drift approved by the Town of Gilbert, Arizona, as the same may be amended from time to time. A current copy of such plan shall be kept on file at all times in the Association office.
1.33 "Member" means every person or entity who holds membership in the Association.
1.34 "Mortgage" means any recorded, filed or otherwise perfected instrument that is not a fraudulent conveyance under Arizona law, given in good faith and for valuable consideration as security for the performance of an obligation, including but not limited to deeds of trust, but shall not include any instrument created or evidencing solely a security interest arising under the Uniform Commercial Code as adopted in Arizona under Arizona Revised Statutes, sections 47-1101 et seq. "First Mortgage" means a purchase-money mortgage that is the first and most senior of all mortgages upon the same property.
1.35 "Mortgagee" means a person secured by a Mortgage, including the trustee and beneficiary under any deed of trust.
1.36 "Mortgagor" means the person delivering a Mortgage.
1.37 "Occupant" means a person or persons, whether or not an Owner, in rightful possession of a Lot.
1.38 "Owner" means the Person who is the record owner or holder of title to a Lot that is part of the Property. The term Owner shall include any person holding fee simple title to any Lot, including Declarant, but shall exclude persons or entities having any interest merely as security for the performance of an obligation. Further, if a Lot is sold pursuant to a recorded contract of sale to a purchaser who resides therein, then pursuant to the doctrine of equitable conversion the resident purchaser rather than the title owner shall be considered the Owner so long as the purchaser resides in that Lot.
1.39 "Parcel" means any area of land designated as a Parcel on the recorded plat of the Property, and also any unsubdivided Tract that is subject to this Declaration.
1.40 "Person" means any individual, corporation, partnership, trustee or other entity capable of holding title to real property.
1.41 "Plat" means that certain map or plat of the Property placed of public record, as identified on page one of this instrument, as the same may be amended from time to time.
1.42 "Property" means that certain real property described on page one of this instrument as the "Property".
1.43 "Record" or "Recording" means to record or the recording of a document in the office of the County Recorder of Maricopa County, State of Arizona.
1.44 "Residence" means a single, detached Dwelling Unit on one Lot.
1.45 "Single Family" means a group of persons comprising one living unit as defined by law.
1.46 "Special Assessment" means any assessment levied and assessed under this instrument other than an Annual Assessment.
1.47 "Special Use Fee" means admission charges, special fees, and fines connected with the use of facilities and the Property as authorized by this Declaration that an Owner, Occupant or any other person is obligated to pay to the Association over, above and in addition to any Annual or Special Assessment or other charge imposed or payable hereunder.
1.48 "Subsidiary Association" means a homeowners or other community association created pursuant to a Subsidiary Declaration and granted powers concerning a Parcel or other lands comprising less than all of the Property.
1.49 "Subsidiary Declarant" means the owner who records a Subsidiary Declaration, its heirs, agents, successors and assigns.
1.50 "Subsidiary Declaration" means a declaration of covenants, conditions and restrictions recorded by the owner of and applying to a Parcel or other lands comprising less than all of the Property.
1.51 "Subsidiary Subdivision" means a parcel or other lands comprising less than all of the Property that is resubdivided pursuant to a lawfully recorded subdivision plat or map.
1.52 "Tenant" means a person lawfully occupying a Lot in the Property under any type of rental arrangement.
1.53 "Tract" means a parcel of land in the Property defined by a Tract Declaration.
1.54 "Tract Declaration" means a declaration recorded pursuant to, and more particularly described in, section 2.07.
1.55 "Visible from Neighboring Property" means, with respect to any given object, that such object is or would be visible to an individual six feet tall, standing at ground level on adjacent property, or property separated from the object property only by a street or easement.
1.56 "Wind Drift" means the Property.
ARTICLE II
Declarant, the Declaration, and the Property
2.01 Declarant’s Intent. Declarant has expended and will expend in Declarant’s sole discretion considerable effort and funds to plan and develop Wind Drift as an integrated community of a variety of land uses. The nature of the Master Development Plan is such that Declarant must for a period maintain control of the manner and course of development to assure continuity and compatibility of the entire Property, while allowing certain flexibility in the use of each Parcel within Wind Drift. Accordingly, Declarant has reserved unto itself certain powers an authority deemed and hereby declared to be necessary to the fulfillment of this Declaration, including without limitation those powers, rights and privileges stated in this article.
2.02 Declarant’s Easement and Rights. There is hereby reserved to Declarant and its agents, successors and assigns, an easement upon, across, in, over and under (a) all the Association Lands as the same may from time to time exist, and (b) such of the Property on which development and construction of improvements and sales of such improvements has not been completed. Such easement is for access, improvement, use, development, construction, exhibit and sale of the Property. Declarant and its activities, including but not limited to construction of any improvement or performance of any work, shall be exempt from the architectural control provisions hereof and of any amendment or supplement. Declarant specifically reserves the right to delegate, assign, share or grant all or any part of the rights, privileges or authority reserved to Declarant under this Declaration (including but not limited to the easements and rights contained in this section), or all or any part of the exemptions granted to Declarant from provisions of this Declaration, whether by provision herein or otherwise, including but not limited to the exemption from architectural control and review, from restrictions on subsidiary associations, on further subdivision, from property restrictions and rezoning or on utility installation or relocation, upon such conditions or subject to such restrictions as Declarant shall deem appropriate, to any one or more grantees, all or any of which may mutually hold such rights, privileges, authority or exemptions concurrently with and not to the exclusion of each other and Declarant.
2.03 Precedence of Declaration. This Declaration and any supplemental declarations and amendments are declared and agreed to be in furtherance of a general plan for the development, improvement and sale of the Property and are established for the purpose of enhancing and perfecting the value, desirability and attractiveness of the Property and every part thereof. All of this Declaration any supplemental declaration or amendment shall run with title to the Property for all purposes and shall be binding upon and inure to the benefit of the Association, Declarant, all Owners, Occupants and their successors in interest. Upon incorporation or other formation of any subsidiary Association, the and its members. Nothing in this Declaration or any supplemental declaration or amendment shall be construed to prevent Declarant from modifying its development plan for the Property or any portions thereof, or from dedicating or conveying portions of the Property or interests therein for uses other than as a Lot or Association Land.
2.04 Master Declaration Supplement. Declarant may unilaterally and without further authority than this instrument cause to be recorded from time to time one or more supplements to this Declaration, called a "Master Declaration Supplement," as follows:
A. A Master Declaration Supplement may make Annexable Property subject to this Declaration, after which the Property as defined herein shall be deemed to include the added land. At a minimum, such supplement shall:
1. Describe the land being added as a part of the Property.
2. Designate any land that is to be Association Land.
3. State that such land and the improvements thereon are expressly subjected to all of the Covenants set forth in this Declaration.
4. State the effect upon and changes (if any) in voting rights of the Association Members caused by the annexation, including changes in the Declarant group of votes necessary to maintain the original Declaration voting ratios.
5. Set forth the amount and/or manner of making any additional assessments against the added land, including recalculation of and restatement of existing assessment provisions if Declarant deems it appropriate.
6. Set forth any supplemental covenants, conditions, restrictions, assessments, charges, servitude’s, liens, reservations, and easements concerning such added land.
B. A Master Declaration Supplement may also fix, determine and amend the same or new or different Land Use Classifications, special uses, use restrictions, easements, rights of way and other like matters for the Annexable Property as are provided for the Property in this instrument or amendments to it.
C. A Master Declaration Supplement need be executed and acknowledged solely by Declarant, and upon recording shall be binding upon the Property, including the land added thereby.
D. Any such Master Declaration Supplement shall be construed as a valid amendment of an supplement to this Declaration and fully a part hereof for all purposes to the same extent as if all of the provisions thereof were set forth in this Declaration. The addition of land to the Property and such land’s becoming subject hereto, shall be effective immediately upon recording.
2.05 Land Use Classifications. The Land Use Classifications for Lots and Association Land are hereby established as follows:
A. Residential - Single Family Detached Use, which shall include only Residences.
B. Residential - Condominium Use, which shall include only Condominiums and types of Dwelling Units known as townhouses.
C. Residential - Cluster Use, which shall include only Lots with those types of Dwelling Units known as patio homes, companion homes, and similar arrangements, together with related areas intended for the use and enjoyment of the Owners and Occupants of the Lots.
D. Commercial Office Use.
E. Association Use, which may include Association Land and may include well sites owned by the Association and used for the withdrawal of groundwater’s.
F. Well-Site Use, which shall be used only for the withdrawal of groundwater’s.
G. General Public Use, which may include but is not limited to rights of way.
H. Municipal Use.
I. School Use.
J. Park Use.
2.06 Restrictions on Further Subdivision, Property Restrictions, and Rezoning. No portion of the Property shall be further subdivided, restricted, or rezoned, except as provided in this section.
A. No portion of the Property shall be subdivided or separated into smaller Lots or Parcels by any Owner, and not portion less than all of any Lot or less than any easement or other interest therein, shall be conveyed or transferred by any Owner without prior written approval as provided herein, which approval must be evidenced on the plat or other instrument creating the subdivision, easement or other interest; provided, however, this provision shall not in manner limit or prevent Declarant from subdividing, separating, conveying or transferring any portion of or interest in the Property at any time owned (legally or beneficially) by Declarant without the need for such approval.
B. No further covenants, conditions, restrictions, assessments, charges, servitude’s, liens (other than Mortgages or other instruments securing loans or other borrowings, including purchase-money debts), reservations or easements shall be recorded by any Owner or any other person against any portion of the Property without the provision thereof having been first approved in writing as provided herein. The approval may, among other things, require inclusion of an explicit right running in favor of the Association (but not an obligation upon the Association) to enforce such covenants, conditions, restrictions, assessments, charges, servitude’s, liens, or easements as a condition to granting such approval. Any covenants, conditions, restrictions, assessments, charges, servitude’s, liens, or easements recorded without such approval being evidenced thereon shall be null and void.
C. No application for rezoning of any portion of the Property, and no applications for variance or use permits of any kinds, shall be filed unless the proposed change and the future use has been approved as provided herein, and the proposed change and the future use otherwise complies with this Declaration.
D. Declarant shall not be subject to the restrictions and limitations of this section.
2.07 Subsidiary Subdivisions and Declarations; Approval. A Subsidiary Declarant may create and cause to be recorded a plat for a Subsidiary Subdivision and may record and impose on that subdivision a Subsidiary Declaration upon receipt of approval in writing given under the authority of this Declaration. The right and power of approval under this section shall be vested exclusively in Declarant so long as Declarant holds Declarant’s group of votes in the Association. Thereafter, such right and power shall be vested exclusively in the Board and the Architectural Committee, both of which must consent to an approval to make it valid.
2.08 Subsidiary Subdivisions; Tract Declaration. Before any Parcel or Lot shall be further subdivided and/or restricted with approval as provided in the immediately preceding section, a Tract Declaration as to such Subsidiary Subdivision shall be recorded as provided in this section.
A. The Tract Declaration shall fix and declare the Land Use Classifications and any number of subclassifications therefore for any special uses that are to be permitted in the Tract. The Land Use Classifications stated in the Tract Declaration shall not be changed except as is specifically permitted by this Master Declaration.
B. The Tract Declaration may fix and declare further use restrictions applicable to the Tract not inconsistent with this Declaration, may provide easements, and may contain other provisions further defining the course of development of the Tract. Declarant shall not impose Land Use Classifications or other restrictions upon the Tract except those that are generally in conformance with then-existing uses and restrictions applicable to the Property or to the development scheme contemplated by the Master Development Plan and this Declaration.
C. The Tract Declaration shall be executed by Declarant and may also be executed by Declarant’s grantee, if any. Declarant may require that it be recorded at the time of conveyance to a grantee. If the Tract is to be developed by Declarant, it shall be recorded at such time as Declarant commences development.
D. Each Tract Declaration shall be construed to be a supplement to and amendment of this Declaration in the same fashion as a Master Declaration Supplement, and as fully a part hereof as if all the provisions were set forth herein. As such, its contents shall be Covenants running with the land in that Tract, and binding upon all who may have an interest therein.
ARTICLE III
The Association
3.01 Association Authority. The Association is hereby granted the power and authority to administer and enforce the Covenants and to exercise the rights, powers and duties set forth in this Declaration. Such power and authority shall not be in limitation of, but shall be in addition to any power or right that Declarant or any Owner or other person may have to enforce this Declaration according to its terms. The power of the Association shall be exercised by action duly and validly taken by the Board, its duly authorized employees, agents, committees or other representatives.
3.02 Declaration Controls. No provision of the articles of incorporation, bylaws or other governing document of the Association shall prevail over a conflicting provision of this Declaration, as it may be amended from time to time. Nor shall any act be authorized or taken, nor any policy be proposed or promulgated by or under the authority of the Association by any mans other than amendment of this Declaration, if the effect of same is to accomplish a purpose or result that would otherwise require an amendment hereof. Nothing herein shall be deemed to restrict the Association from any action or any provision in its articles that is not in conflict with this Declaration. Nothing in this Declaration shall be construed to prevent Declarant from amending the Master Development Plan from time to time.
3.03 Wind Drift Rules. By a majority vote of the Board, the Association may from time to time adopt, amend and repeal rules and regulations to be known as "Wind Drift Rules". Such rules may, without limitation, govern use of the Property, including restricting or imposing a charge for the use of any portion of the Property by Owners or Occupants or others, interpret this Declaration, or establish procedures for operation of the Association or the administration of this Declaration; provided, however, that the rules shall not be inconsistent with this Declaration, the Articles or Bylaws. A copy of the rules as they may from time to time be adopted, amended or repealed shall be maintained in the office of the Association and shall be mailed or otherwise delivered to each Owner upon the Owner’s request upon purchase of a Lot and later, and a copy may be placed of public record at the election of the Board. Upon such mailing or delivery or recording, the rules shall have the same force and effect as if they were set forth in and were part of this Declaration.
3.04 Subsidiary Associations. In the event any homeowner or similar organization or association is to be formed by the developer (other than the Declarant) of a portion of the Property as provided in article II hereof, the articles of incorporation, bylaws or other charter and constituent documents for such association shall not be effective unless the contents thereof have been approved in the same fashion as is provided for approval of a Subsidiary Subdivision and a Subsidiary Declaration, and unless such constituent documents shall specify that such association, its rights, and the rights of its members are subject and subordinate to the provisions of this Declaration, the provisions of the Wind Drift Rules, and subject to the control of the Association.
3.05 Association’s Rights of Enforcement of Provisions of Other Instruments Affecting the Property. The Association, as the agent and representative of the Owners, shall have the right, but not the obligation, to enforce any and all covenants, restrictions, reservations, charges, servitude’s, assessments, conditions, liens and easements provided for in any declaration, deed or other instrument affecting all or any part of parts of the Property, including but not limited to any Tract Declaration, supplemental declaration or other amendmentory or supplemental instrument, provided such instrument shall have been executed pursuant to, or subject to, the provisions of this Declaration, or shall otherwise indicate that the provisions of such instrument may be enforced by the Association.
3.06 Contracts With Others; Interested Parties.
A. GENERAL. Subject to the restrictions and limitations contained herein, the Association may enter into contracts and transactions with others, including Declarant, its subsidiaries and affiliates, and such contracts or transactions shall not be invalidated or in any way affected by the fact that one or more directors of the Association is employed by or otherwise connected with such person or entity (including Declarant, its subsidiaries or affiliates), provided that the fact of such interest shall be disclosed or known to all the directors acting upon such contract or transaction, and provided further that the transaction or contract is fair and reasonable; and any such interested director may be counted in determining the existence of a quorum at that meeting on the Board which shall authorize any such contract or transaction, and may vote there at to authorize any such contract or transaction with like force and effect as if he were not so interested.
B. MANAGEMENT AGREEMENTS. Each owner, by becoming such, shall be deemed to have agreed to be bound by the terms and conditions of all management agreements entered into by the Association with respect to the Property. A copy of all such management agreements shall be available to each Owner and Mortgagee for reasonable inspection at the offices of the Association. Any management agreement entered into by the Association shall be for a term not in excess of one year and shall provide that it may be canceled without payment of a termination fee (other than amounts then owing) upon thirty days written notice either (1) for cause by the Association’s Board of Directors or (2) with or without cause upon the affirmative vote of Members of the Association holding at least a majority of the votes eligible to be cast.
3.07 Mergers and Consolidations. The Association shall have the right and power to participate in mergers or consolidations with any other non-profit corporations, associations or other entities regardless of whether the objects, purposes, rights and powers of such non-profit corporations, associations or other entities are the same as those of the Association. Any proposed merger or consolidation shall not be effective or voted upon by the Owners without prior approval of the Board. Any such mergers, or consolidations shall be consummated only upon an affirmative vote of two-thirds of the votes cast by the Voting Owners, in person or by proxy, at a meeting duly called for such purpose. Upon any such merger or consolidation, all of the properties, rights and obligations of the other non-profit corporation, association or other entity shall be transferred to and assumed by the Association as the survivor, or alternatively, all the properties, rights and obligations of the Association shall be transferred to and assumed by the surviving or newly created non-profit corporation, association or entity.
3.08 Membership. Every person who is a record Owner, as defined herein, of a fee or undivided percentage fee interest in a Lot that is subject of this Declaration by covenants of record and to assessment by the Association, shall be a Member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Lot that is subject to assessment by the Association. Ownership of a Lot shall be the sole qualification for membership.
3.09 Voting Rights. Subject to the rights of Declarant, a Member shall be entitled to vote as provided herein for each Lot in which the Member holds the interest required for membership. When more than one person holds such an interest in any Lot, all such persons shall be Members, but the single vote for such Lot shall be exercised as they among themselves may determine. In no event shall more than one vote be cast with respect to any one Lot, except as provided for Class B votes. A Member shall not be permitted to vote at any regular or special meeting of the Association if such Member is delinquent at the time such meeting is held in the payment of any assessment, fee or charge authorized by this Declaration.
3.10 Voting Classes. For purposes of casting votes in the Association, there shall be two classes of Members. Class A shall consist of all Members. Class B shall consist solely of Declarant.
3.11 Members’ Votes. Voting rights of Members shall be vested and shall be exercisable only at such time and in such manner as shall be provided herein and in the Articles and Bylaws.
A. CLASS A MEMBERS shall be entitle to one vote per completed Dwelling Unit (or Dwelling Units authorized by the then-current Master Development Plan or Master Declaration Supplement if uncompleted) owned by the Member, and one vote per 10,000 square feet or fraction thereof owned and used (or authorized by the then-current Master Development Plan or Master Declaration Supplement to be used) solely for non-residential use.
B. CLASS B DECLARANT shall be entitled to the votes provided in this subsection in order to assure the development of the Property contemplated by the Master Development Plan:
1. Commencing upon the recording of this Declaration, Class B Declarant shall be entitled to three votes for every single vote Declarant would have if it were a Class A Member.
2. Declarant may cast all of its votes in its capacity as Class B Declarant, or may cast all of its votes in its capacity as a Class A Member, but it may not do both in an Association vote on any one issue or office.
3. Class B Declarant’s votes and right to vote shall cease upon the first to occur of the following events:
i. At such time a the total votes vested in Class A Members excluding Declarant equal or exceed the total votes vested in Class B Declarant.
ii. Fifteen years following the effective date of this Declaration.
iii. Such earlier time as Declarant shall designate in writing.
C. LIMITATIONS. The foregoing voting rights are subject to any provisions of the Articles and Bylaws concerning among other things notice and record dates, and further are effectively limited as herein elsewhere set forth until the last stages of development of the Property by Declarant, and may be suspended in the event of defaults.
D. CHANGES IN RIGHTS. If the authorized or lawful actual use of any Lot changes from any of the designations in this section to any of the other designations herein, the number of votes to which the Member is entitled with respect to such Lot shall be the number of votes provided in this section for the new use of such Lot. Each Owner shall immediately give the Association written notice upon such change, describing it. The change in voting rights hereunder shall be effective on the date that the Board in its discretion determines the change in authorized or lawful actual use took place, regardless of the date or contents of such notice.
3.12 Special-Meeting Notice and Quorum Requirements. A special meeting of the Members of the Association may be held to conduct any business authorized in this Declaration or otherwise by Association authority. Written notice of such special meeting shall be sent to all Members of record of the Association a provided in the Bylaws. At the first meeting so called, the presence at the meeting of Members or of proxies entitled to cast sixty percent of all votes shall constitute a quorum. If the required quorum is not forthcoming at such meeting, a second special meeting may be called, subject to the same notice requirement, and the required quorum at such second meeting shall be one-half of the required quorum at the preceding meeting. A third subsequent meeting may be held upon the same terms, including a further reduced quorum. No such subsequent meeting shall be held more than sixty days following the preceding meeting.
ARTICLE IV
Association Land
4.01 Title to the Common Area. Declarant hereby grants and conveys to the Association, its successors and assigns, fee simple title to the Common Area as defined herein, subject to the terms and conditions of this Declaration.
4.02 Title to Association Land. All right, title and interest in and to all Association Land shall remain vested in the Association so long as the Association is the owner thereof, and the status of any other Owner as a Member shall not vest any of such right, title and interest in such other Owner.
4.03 Owners' Easements of Enjoyment. Every Owner shall have a right and easement of enjoyment in and to Association Land as a tenant in common with every other Owner, and such easement shall pass with the title to every Lot. The easement granted hereby shall be subject to the controls, restrictions and limitations set forth in this Declaration or any supplemental Declaration or amendment, and subject to the further limitation that such easement shall be in conformance with the contemplated use of the Association Land.
4.04 Rules Regulating Use of Association Land. All rights, easements and privileges granted and conferred under this article shall be subject to the exclusive right of the Association to adopt from time to time rules and regulations pertaining to the use of Association Land (including, but not limited to, prohibiting access to areas such as, for example, landscaped rights-of-way not intended by the Association for use by the Owners or others).
4.05 Special Use Fees, Including Fees Chargeable to Users of Association Land. All rights, easements and privileges granted and conferred under this article shall be subject to the exclusive right of the Association to charge Owners, Occupants, and other persons Special Use Fees, including initiation, admission and other fees, in connection with the use of any or all of the Association Land. In establishing or adjusting the amounts of such fees from time to time, the Board, in its absolute discretion, may establish reasonable classifications as to Owners, Residents and other persons.
4.06 Suspension of Rights of Enjoyment in Connection With Enforcement of Covenants. The Association shall have the right to suspend the rights, easements and privileges of any Owner (and the privilege of each Occupant or other person claiming through such Owner) for (a) any period during which the Assessments or Maintenance or other charges assessed to such Owner under this Declaration or any Supplemental Declaration remain delinquent and unpaid, or (b) any reasonable period up to but not in excess of ninety days in connection with the enforcement of this Declaration, any supplemental Declaration, the Wind Drift Rules and/or any other instrument or rules or regulations. Such period shall be subject to renewal for continuing violation.
4.07 Delegation of Use; Designee. Any Owner may, in accordance with the Wind Drift Rules and the limitations therein contained (if any) and this Declaration and any supplemental Declaration delegate his right of enjoyment in the Association Land to a Designee, which may include the members of his family, his tenants, or his guests or invitees. Nothing in this section shall give any delegate any greater rights than those held at any time by the Owner making such delegation.
4.08 Maintenance Responsibility. The Association shall assume responsibility for the management, maintenance and repair of Association Land, as herein provided, The Association shall also assume responsibility periodically to inspect the Association Land in order that minimum standards of repair, design, color and landscaping shall be maintained for beauty, harmony and conservation of values with the entire project.
4.09 Change of Use of Association Land and Procedure. Upon adoption of a resolution by the Board stating that in the Board's opinion the then present use of a designated part of the Association Land is no longer in the best interests of the Owners, the Board shall have the power and right to change the use thereof (and in connection therewith, construct, reconstruct, alter or change the buildings and other improvements thereon in any manner deemed necessary by the Board to accommodate the new use), provided such new use (a) shall be for the benefit of the Owners, (b) shall be approved by the Architectural Committee, and (c) shall be consistent with any deed restrictions and zoning regulations restricting or limiting the use of the Association Land.
4.10 Transfer of Association Land and Procedure. Not-withstanding the rights, easements and privileges granted and conferred hereunder, the Board shall have the power and right to sell, assign, dedicate, give, convey or otherwise transfer (hereinafter called "transfer") to any person, entity or public body, all or any part or parts of the Association Land free and clear of all rights, easements and privileges; provided, however, that in the event any such transfer is made to some person or entity other than a public body, then such transfer may be made only after a finding by the Board that the part or parts of the Association Land to be transferred are no longer necessary or useful for the Association's purposes or that such transfer will be in the best interests of the Owners of the Property. Notice of such finding shall be published once a week for two consecutive weeks in a newspaper of general circulation in the area, except that if there shall be no such newspaper or circulation thereof has been temporarily interrupted, such notice may be published by such other appropriate means as the Board may determine. If during the two calendar weeks following the week in which the last publication of such notice occurred there shall be filed with the Association a petition signed by ten percent of the Owners (calculated by number of votes held) protesting or objecting to the transfer, then the transfer may not be made unless such transfer is approved by more than fifty percent of the votes cast by the Owners, in person or by proxy, at a meeting duly called for such purpose.
4.11 Eminent Domain. The term "taking" as used in this section shall mean condemnation by eminent domain or sale under threat of condemnation or in lieu thereof. The Owners hereby appoint the Board and such persons as the Board may designate to represent all of the Owners in connection with the taking of all or any portion of Association Land. The Board shall act in its sole discretion with respect to any awards offered or made in connection with the taking and shall be entitled to make a voluntary sale to the condemnor in lieu of engaging in a condemnation action. Any awards received on account of the taking shall be paid to the Association and shall be used as the Board deems appropriate in its sole discretion, including by application to restoration and replacement of the Association Land and the improvements thereon, by retaining any award in the general funds of the Association or by distributing pro rata all or 2 portion thereof to the Owners based on their most recently assessed respective Annual Assessment obligations to the Association.
ARTICLE V
Covenants for Assessments
5.01 Creation of Lien and Personal Obligation of Assessments. Each Owner, for himself, his heirs, executors, administrators, trustees, personal representatives, and assigns, by acceptance of a deed for a Lot or a Parcel, whether or not it shall be so expressed in any such deed or other conveyance, is deemed to covenant and agrees to pay and to be personally liable for the assessments, fees and charges provided for hereunder. Each Owner shall be and remain personally liable, regardless of whether such Owner has transferred title to his Lot, for the amount of all assessments, fees and charges that fell due while he was an Owner. No Owner shall escape personal liability for the assessments and charges herein provided by non-use of Association Land or by transfer or abandonment of his Lot or other means. Except as is provided in this article, the personal obligation for all such amounts shall also pass with the Lot to the successor Owners thereof. The liability of a successor Owner shall not relieve any prior Owner of personal liability for the amount of assessments and charges that fell due while the prior Owner was an Owner and Member. The assessments, fees and charges provided herein, together with interest thereon and expenses of collection, including reasonable attorney fees and agent charges, shall be a charge and a continuing lien upon the Lot against which each assessment is made. Declarant shall not be liable for any assessment authorized herein for any Lot to which it holds title, except as is provided in the sections on Annual Assessments and the General Fund.
5.02 Purpose of Assessments. The assessments levied by the Association shall be used (a) to promote the recreation, health, safety and welfare of all the residents on the Property, (b) for the improvement, maintenance, repair and landscaping of the Association Land, (c) for the purchase of liability insurance to cover the liability of the Association and its Members for the use of the Association Land, and (d) for such other use as the Board may approve.
5.03 Assessment Periods, Rates and Lien Date. In the absence of a Certificate of Assessment Period recorded by the Association, each Assessment shall be deemed imposed and a lien on January 1 of each year. All assessments shall be for the twelve-month period, or in the case of a need to adjust assessment dates a lesser period, then commencing or established by the Board as the Assessment Period each year. Each assessment shall be at a uniform rate stated in dollars per Assessment Unit, and shall be a lien upon each Lot from and after the first day of the Assessment Period.
5.04 Assessment Units. Each Lot shall be assessed by reference to the Assessment Unit according to its use classification, as follows:
A. Residential Use--All Classes: An amount equal to the Assessment Unit multiplied by the number of Dwelling Units authorized to be constructed on the Lot; provided, however, that the rate applicable to such Dwelling Units authorized but not yet completely constructed shall be one-fourth the Assessment Unit multiplied by all such Dwelling Units.
B. Commercial Office Use: An amount equal to one Assessment Unit multiplied by each 10,000 square feet of gross property or fraction thereof; provided, however, that commercial property authorized but not yet completely constructed shall be assessed at one-fourth that rate.
C. Declarant's Parcels and Lots shall be exempt from assessment until such time as Declarant shall commence development of them, after which they shall be assessed as are other Parcels and Lots.
D. If any Lot falls into more than one class for assessment purposes, the Lot shall be assessed according to that class that produces the highest assessment.
5.05 Annual Assessments. There is hereby established and imposed an Annual Assessment upon all Assessable Property within the Property.
A. The first Annual Assessment shall have an Assessment Period commencing January 1, 1988. The Annual Assessments provided for herein shall commence as to each individual Parcel or Lot on the first day of the month following the original conveyance of such Lot by Declarant to an Owner, and shall be pro-rated according to the number of months remaining in the Assessment Period.
B. The first Annual Assessment shall not exceed Two Hundred Forty and No/100 Dollars ($240.00) per Assessment Unit. Each succeeding Annual Assessment shall be at a rate set by the Board or the Members as provided herein.
C. From and after January 1 of the year immediately following the conveyance of the first Parcel or Lot by Declarant to an Owner, the maximum Annual Assessment may be increased by the Board without a vote of the Members in an amount not greater than ten percent above the maximum Annual Assessment established for the previous year. The maximum Annual Assessment may be increased in an amount greater than ten percent above the maximum Annual Assessment established for the previous year upon an affirmative vote of two-thirds of the Members constituting a quorum at a regular or a special meeting duly called for such purpose. Such increase in the maximum Annual Assessment, whether authorized by the Board or by a vote of the Members, shall be fixed and determined at least thirty days prior to such Assessment Period. If the Board fails to set such Annual Assessment within the time allocated, the amount of such assessment for any given Assessment Period shall be equal to that amount assessed for the prior Assessment Period.
5.06 General Fund. The Board shall cause proceeds of the Annual Assessments to be deposited into a "General Fund," which shall be the general operating fund for the Association, which may consist of more than one bank depository account, and which may be used in any manner authorized under this Declaration or within the authority of the Association for such funds. Declarant covenants to advance into the General Fund sufficient funds to cover any shortfall in payment of budget items, so long as Declarant holds Class B voting rights.
5.07 Capital Improvement Fund. The Board may in its discretion establish a "Capital Improvement Fund" to be used only as a sinking fund to make capital improvements to the Property, including but not limited to streets and curbs, in such percentage of the Annual Assessment proceeds as the Board may determine, and money deposited therein shall accumulate until revenues are needed.
5.08 Purchaser Assessment. There is hereby established and imposed a Purchaser Assessment upon each new purchaser of a Lot (whether one or more, and whether in the form of a Lot or a Parcel) and upon said Lot, payable at or before transfer of title to any Lot or other portion of the Assessable Property to any new Owner. The Purchaser Assessment shall equal one-sixth of the then-current Annual Assessment on the Lot, and shall be in addition to any other assessments, annual or otherwise. The assessment proceeds shall be placed in the General Fund and may be used for any purpose authorized to the Board by this Declaration.
5.09 Special Assessments. In addition to the other assessments authorized herein, the Association may establish and impose in any year subsequent to January 1 of the year immediately following the conveyance of the first Lot by Declarant to an Owner, a Special Assessment applicable to that year only, upon an affirmative vote of two-thirds of the Members constituting a quorum at a regular or special meeting duly called and noticed for such purpose. Such Special Assessment shall be for any purpose not in conflict with this Declaration.
5.10 Collection of Assessments; Certificate. Assessments shall be collected as provided in this section.
A. Assessments shall be payable on a quarterly, annual or other basis, as the Board shall determine from time to time. Payments shall be due on the dates established by the Board, and shall be delinquent fifteen days thereafter.
B. Written notice of every assessment shall be sent to every Owner subject thereto, but failure to do so shall not affect the validity of the assessment or of any lien premised upon it. The Association shall upon demand furnish a certificate in writing, signed by an officer of the Association, stating whether on the date such certificate is issued the assessments on a specified Lot have been paid, which shall be conclusive evidence of payment of any assessment therein stated to have been paid. The Board may charge a reasonable fee for issuance of such certificate.
5.11 Effect of Nonpayment of Assessments; Remedies of the Association. Except as is otherwise provided herein, any assessment not paid within fifteen days after the due date shall be delinquent, and shall bear interest from the date of the delinquency at the rate set from time to time by the Board, taking into consideration market rates of interest for delinquent obligations. The Association may employ attorneys or other agents for the collection of delinquent assessments. All imposition and collection expenses incurred by the Association and its agents, including reasonable attorney fees and other fees and charges, shall be added to the assessment and bear interest accordingly. The Association may bring an action at law against the Owner personally obligated to pay such assessment, or foreclose the lien against the property in accordance with Arizona law relative to realty mortgages, or collect in any other manner permitted by law, singly or in combination and without prejudice to any other remedy, and interest, all expenses, and costs of any action shall be added to the amount of such assessment.
5.12 Evidence of Lien. It shall not be necessary to the validity, enforceability or binding effect of any lien imposed by authority of this Declaration that it be evidenced by a recorded document other than this Declaration. It shall be sufficient to establish the amount of the lien in a lien-foreclosure or other action that the complaint describe the unpaid assessment(s) with particularity and that a notice of lis pendens in the usual form be recorded. Notwithstanding other provisions of this section, a certificate stating the amount of any unpaid assessment acknowledged and recorded by the president or secretary or treasurer or designated agent of the Association, shall be prima facie evidence of the amount of the lien.
5.13 Priority of Assessment Liens. Liens imposed upon the Property by this Declaration shall have the same effect and priority as a lien for real property taxes or other liens imposed for the common welfare and benefit of the Owners, and as such shall without necessity of recording be superior to all mortgages and other conveyances and other non-governmental liens, however imposed. Without limiting the generality of that principle, the following specific terms shall apply to such liens:
A. Sale or transfer of any Lot shall not affect an assessment lien. No sale or transfer shall relieve any Lot from liability for any assessments thereafter becoming due or from the lien thereof.
B. The assessment lien provided for herein shall be subordinate to any lien imposed by a First Mortgage made in good faith and for value. The sale or transfer of any Lot pursuant to foreclosure of such mortgage, or any proceeding in lieu thereof, shall extinguish the assessment lien of such assessment as to payments that became due prior to such sale or transfer. No breach of the covenants, conditions, or restrictions in this Declaration, nor the enforcement thereof, shall defeat or adversely affect the lien of any such First Mortgage; provided, however, all of the covenants, conditions and restrictions in this Declaration shall be binding upon any Owner whose title is derived through foreclosure or exercise of a power of sale by a Mortgagee.
ARTICLE VI
General Use Restrictions
6.01 Applicability. The covenants and restrictions in this Article shall apply to all the Property without exception.
6.02 Land Use. The Property shall be known, described and used in accordance with the Land Use Classifications stated herein, and construction thereon is limited to such use as is stated in the Tract Declaration applying to each Tract or Parcel.
6.03 Restrictions Apply to All Structures. All structures, including without limitation tennis courts and swimming pools, must be constructed on the Property in compliance with any county or municipal zoning regulations applicable to the Property, must be architecturally compatible with contiguous structures, and must comply with the provisions of this Declaration.
6.04 Prohibited Structures. No tent, shack, garage, barn or other outbuildings shall, at any time, be erected and used temporarily or permanently for any purpose, nor shall any recreational vehicle or mobile home be used as a residence or for any other purpose on any part of the Property. No structure of any kind shall be moved onto any part of the Property except temporary buildings used by contractors in connection with construction work, it being the intent of this Declaration that all structures in the Property shall be newly and permanently constructed there-on.
6.05 Condition Precedent to Construction. Prior to commencement of any construction, alteration or improvement upon any part of the Property, the construction plans must be approved by the Architectural Committee. Any building permit issued prior to such approval shall be deemed void.
6.06 Reasonable Progress of Construction. All buildings in the Property shall be of new construction, which shall be commenced within three months of purchase and shall be completed within twelve months of commencement as to Dwelling Units, and within twenty-four months as to commercial buildings. For violation of this section, the Association acting through its Board may (a) cause the uncompleted improvements to be torn down and removed from the Property; (b) increase the Annual Assessment and lien upon the Owner and the subject Lot to one hundred percent of the then-current assessment; (c) increase the Annual Assessment to a rate of one Assessment Unit for every week past the permitted time that construction remains incomplete; (d) pursue any remedy permitted at law or in equity, either singly or in combination with
other remedies; and (e) collect from the Owner and impose upon the Lot in question a lien for all loss cost or expense, including reasonable attorney fees, incurred by the Association and its agents for enforcement of this section.
6.07 No Obstruction of Easements. Easements, as indicated upon the recorded map or plat of the Property, are reserved for the installation and maintenance of public service utilities and other uses for public or quasi-public good. No buildings or other structures shall be placed upon such easements or placed so as to interfere with the free use of the same for the purposes intended. No fences will be allowed in public utility easements.
6.08 Water Drainage and Easements. To assure the proper flow of surface water within the Property, each Lot and its Owner shall conform to these requirements: An Owner or Occupant of a Lot shall not at any time fill, block or obstruct any drainage easements and drainage structures on the Property, nor shall any Owner cause or suffer to be erected on any Lot, any building or obstruction for the purpose, directly or indirectly, of obstructing, blocking or filling any such drainage easement or drainage structure, and each Owner agrees to repair and maintain all such drainage easements and drainage structures on a Lot, making good nevertheless, at his own expense, all damage that may be caused to the said drainage easements and structures on the Property, and each Owner agrees to repair at his own expense, all damage to any structure or any Lot that may be caused, directly or indirectly, by his obstructing, blocking or filling any such drainage.
6.09 Business Prohibited. Except in areas specifically approved for commercial or industrial use, no trade, business, profession or other type of commercial activity shall be carried on upon any part of the Property, except that real estate brokers, Owners and their agents may show improvements in the Property for sale or lease, nor shall any Lot be used as a hospital or sanitarium or other place for hire for the care or entertainment of persons suffering from any disease or disability whatsoever; nor shall anything be done on any part of the Property that may become an annoyance or nuisance to the neighborhood. Every person, firm or corporation purchasing a Lot in the Property recognizes that Declarant, its agents or assigns, has the right to conduct construction and sales activities in the Property until all of the Lots in the Property have been sold. The foregoing restriction shall not, however, be construed so as to prohibit any Owner from keeping personal business or professional records, materials or accounts or handling personal business or professional telephone calls or correspondence.
6.10 Advertising Prohibited. Except as is specifically approved in commercial and industrial areas, no advertising, signs, billboards, handbills, unsightly objects or nuisances shall be erected, placed, or permitted to remain upon any part of the Property. Nothing contained in this Declaration shall be construed to prevent the erection or maintenance by Declarant or its duly authorized agent, of structures or signs necessary or convenient to the development, sale, operation or other disposition of land within the Property.
6.11 Animals Prohibited. No animals, livestock, or poultry of any kind shall be raised, bred, or kept upon any part of the Property, except that household pets may be kept within a Lot, provided they are not kept, bred, or maintained for any commercial purpose, and provided further that no person owning or in custody of a pet shall allow the pet to stray or go upon any part of the Property outside the Owner's Lot.
6.12 Trash Removal. Trash, garbage or other waste shall not be kept except in sanitary containers, as approved by the municipality that has jurisdiction over the Property, if any. Such refuse containers shall not be permitted in the front of a Lot and shall be screened from street view. Each Owner shall provide an area for the storage of said trash containers, which area shall not be visible from any other adjoining Lot and shall be used to house the container when it is not placed on the street for pickup. Trash and garbage containers may be placed on the street during normal pickup days but shall be removed to their proper storage area as soon as possible after they have been emptied by sanitation workers. All equipment for the storage or disposal of such material shall be kept in a clean and sanitary condition subject to any applicable municipal zoning ordinances.
6.13 Physical Condition of Lots. All Lots shall be at all times kept free of rubbish and litter so as to present a tidy appearance. Owners agree they will arrange for the care of their Lots during prolonged absence.
6.14 Enforcement of Lot Maintenance Restrictions; Charge. In the event an Owner does not maintain his Lot in a neat and proper manner as provided herein, the Association may cause the same to be cleaned and restored to proper condition, and may impose a Maintenance Charge for such service. Upon the Owner's refusal to pay the Maintenance Charge, within thirty days after presentation of a bill therefor, the Association may record an affidavit in the Office of the County Recorder of Maricopa County, State of Arizona, stating that said Owner refused to maintain said Lot in a neat and proper manner, the amount of charge, to whom it was paid, and the date, and such amount shall thereupon constitute a lien against said Lot subject to and enforceable in accordance with the provisions hereof as to liens.
6.15 Nuisances Prohibited. No unlawful, offensive, obnoxious or immoral activity or condition shall be carried on or maintained upon any portion of the Property, nor shall anything be done or permitted thereon which may be or become a nuisance or annoyance to the neighborhood, or unnecessarily result in substantial reduction of the market value of the Property. The definition of what constitutes a violation of this section rests solely within the discretion of the Board.
6.16 Interpretation of Restrictions. In the event of any ambiguity in any provision of the restrictions in this Declaration, the interpretation of the Architectural Committee as to meaning intended shall prevail.
6.17 Variances. The Board may, at its sole discretion and in extenuating circumstances, grant variances from the use restrictions set forth in this Declaration or in any Tract Declaration if the Board determines that (a) either (i) a restriction would create a substantial hardship or burden on an Owner or Occupant, or (ii) a change of circumstances has rendered a restriction obsolete, and (b) the activity permitted under the variance will not have a substantially adverse affect on other Owners and Occupants and is consistent with the high quality of life intended for the Property.
ARTICLE VII
Residential Classifications Use Restrictions
7.01 Applicability. The covenants and restrictions in this article shall apply to all portions of the Property with a Land Use Classification of Residential, no matter the sub-classification. In this article, "Tract" refers to all such portions of the Property.
7.02 Residential Use. The Tract shall be known, described and used as residential property, and only single-family Dwelling Units may be constructed thereon.
7.03 Setback Requirements. No building shall be located on any Lot except within the following boundaries:
A. SINGLE-FAMILY DETACHED USE: Not nearer to the front line than eighteen feet; nearer to any interior lot lines than five feet; nearer to a side lot line adjacent to a street than five feet; or nearer to the Lake than five feet.
B. CLUSTER USE: Not nearer to the front line than ten feet; nearer to any interior lot lines than five feet; nearer to a side lot line adjacent to a street than five feet; or nearer to the Lake than five feet.
C. COMMERCIAL OFFICE USE: Setbacks shall be in accordance with the zoning laws of the municipal or county government that has jurisdiction of the Property.
D. ALL USES: For the purposes of this restriction, eaves, steps, and open porches shall not be considered as a part of a building, provided, however, that the same shall not be construed to permit any portion of a building on a Lot to encroach upon another Lot. Each Dwelling Unit shall consume not more than fifty percent of the area of the Lot.
E. EXCEPTIONS. The following are excepted from the foregoing restrictions:
1. Dwelling Units platted and designed for so-called zero-lot-line construction may be located within zero feet of interior lot lines.
2. Residential--Cluster classification Dwelling Units may consume-Sixty percent of the area of the Lot.
3. As to Residences, side yards in respect of detached garages and other permitted accessory buildings located in the rear one-half of the Lot need only conform to the requirements of the municipal or county government that has jurisdiction of the Property.
4. Side-entry garages need be set back of the front lot line only ten feet.
5. A variance may be granted by the Architectural Committee for good cause shown due to design requirements in furtherance of the general plan of development and this Declaration.
7.04 Minimum Dwelling Unit Standards. Dwelling Units in Tracts with a Residential--Single Family Detached use classification shall be not less than 1,400 square feet of livable space, and shall have a tile or shake roof, or have brick walls with architectural shingles. Dwelling Units in Tracts with a Cluster use classification shall be not less than 950 square feet of livable space, and shall have a tile or shake roof, or have brick walls with architectural shingles. Dwelling Units in Tracts with a Condominium use classification shall have a tile or shake roof.
7.05 Swimming Pools. Swimming pools, Jacuzzis or spas may be constructed on individual Lots. Any such structure constructed between the building and front lot line shall be enclosed by a fence not closer than ten feet to the near edge of the street curb. Swimming pools shall be constructed below surface grade and shall be a permanent construction. No fiberglass or vinyl building materials may be used in the construction of the pool sides and floor. Jacuzzis and spas may be either permanent or temporary and of either above or below grade construction, provided that such Jacuzzis or spas shall not be visible from any street, alley, easement, lot or residence located within the subdivision. Further, all machines, pumps, valves, pipes, hoses, switches and any other equipment, tools or accessories associated with the swimming pool, Jacuzzi or spa shall be concealed within the fence and shall not be visible from any street, alley, easement, lot or residence located within the subdivision.
7.06 Fences and Walls. All fences, walls or screening hedges erected upon the Property (referred to herein as "fences") shall be of the same architectural style as adjacent structures and shall be approved by the Architectural Committee. Gates shall not project substantially higher than adjacent fences.
7.07 Fence and Wall Design. Fences shall be erected on every Lot having a Residence thereon, in accordance with the Master Development Plan and the Tract Declaration. No fence or wall higher than six feet shall be constructed across the rear or along the side of any Lot, nor shall any fence or wall other than of cement-block be placed upon any Lot, except gates thereof may be of wood construction. Side fences and the lot line fence on the street side of Lots abutting arterial and collector streets, and fences abutting the boundary of adjacent Parcels or communities may exceed six feet. All walls or fences shall be erected prior to the Owner of any Lot taking possession of a residence on the Lot. Fences or walls constructed within the area of the minimum front or side setback line shall not exceed two feet six inches (2.5 feet) in height. No fence shall be constructed within ten feet of the curb of any street located within the Property.
7.08 Fence and Wall Construction. Unless otherwise approved by the Architectural Committee, all fencing and any materials used for fencing, dividing, or defining the Lots must be of block construction and of new materials, and erected in a good and workmanlike manner. The color(s) of the fencing for all Lots shall be as selected by the Declarant and may not be changed without the prior approval of the Architectural Committee. All fences shall be maintained in good condition and repair, and fences, upon being started shall be completed within a reasonable time not exceeding three months from commencement of construction. In the event any fence installed by the Declarant is wholly or partially damaged by any cause, the damaged portion shall promptly be restored to its original condition by the Owners of the adjacent Lots. The Association may enforce this section by such means as it deems appropriate, including the prompt construction provision of the preceding article.
7.09 Fence Maintenance. All fences constructed upon or near the property line between the Lots shall be maintained and repaired at the joint cost and expense of the adjoining Lot owners, Fences constructed upon the back of any Lot that does not adjoin any other Lot shall be maintained and repaired at the sole cost and expense of the Lot Owner upon whose Lot, or immediately adjacent to whose Lot, the fence is installed. Such fences may not be altered or changed in design, color, material, or construction from the original construction without the prior approval of the adjoining Owner(s), if any, and the Architectural Committee. In the event any such fence is damaged or destroyed by the act or acts of one of the adjoining Lot Owners or the Owner's family, agents, guests, invitees, licensees, or tenants, that Owner -shall be responsible for the damage and shall promptly rebuild and repair the fence to its prior condition, at that Owner's sole cost and expense.
7.10 Easement for Fence Repair. For the purpose of repairing and maintaining any fence or wall located upon the property line between Lots, or located near or adjacent to such line, an easement not to exceed five feet in width is hereby created over the portion of every Lot immediately adjacent to any perimeter fence to allow the adjoining Owner access for maintenance purposes set forth in this Declaration, and for no other purpose,
7.11 Landscaping and Grounds. All Residences shall have landscaping from the side-fence (as defined herein) to the front Lot line of the Lot completed within ninety days of possession of the Residence. Each Occupant shall cooperate with the reasonable needs of the Association concerning maintenance of the front yards in the Subdivision.
ARTICLE VIII
Lake Area Use Restrictions
8.01 General. The Lake Area shall consist of (i) Water Access Areas; (ii) Private Waterfront Areas; and (iii) the Lake.
8.02 Rules Regarding the Lake Area. The Board shall have the exclusive authority to regulate the use and operation of the Lake Area and may establish rules regarding all related matters, including but not limited to: landscaping and maintenance of the Private Waterfront Areas and Water Access Areas; storage, launching, recovery, mooring, maintenance, overhauling, operation, and repairing of water craft; fishing and other aquatic activity; storage of equipment and personal property of every kind; the disposal of sanitary sewage and garbage; and use of the water-front Access Areas and the Waterfront Facilities. All Owners and residents shall abide by such rules and shall be responsible for all acts of their family, guests, invitees, and Designees. The Board shall have the right to supplement, amend, change or revoke such rules without advance notice.
8.03 Swimming. No swimming shall be permitted in the Lakes, except in case of an emergency.
8.04 Right-of-Way. Declarant hereby reserves to the Association the right to enter upon and use the Private Waterfront Area for any lawful purpose in connection with the creation, use, operation, maintenance and repair of the Lake. Such usage may not interfere with the Owner's use thereof for any unreasonable time period.
8.05 Emergency. Declarant hereby reserves the right to all permitted users of the Lake to enter upon and use a Private Waterfront Area, but only in case of an emergency situation.
8.06 Private Waterfront Area/Waterfront Facilities. Except for the rights reserved above in this article, all Private Waterfront Areas are for the exclusive use of the Owner or Occupants of the Lot or Parcel to which the Private Waterfront Areas are appurtenant and for owner's family members, guests, Tenants, agents or Designees. Without the prior written consent of the Architectural Committee, no Owner of a Private Waterfront area shall construct, maintain or locate any Waterfront Facilities on such Private Waterfront Area. No such facility shall be permanently attached to the bed of the Lake, but shall be capable of floating at anchor at the Lake end of the wharf or other facility. All such Waterfront Facilities may be used only for the accommodation of private water craft and other noncommercial, recreational purposes. Each Owner of such Waterfront Facilities, including those located on or in the Lake, shall, at his sole expense, maintain such Waterfront Facilities and all areas of the Lot viewable from or across the Lake in neat and clean appearance, and in good and safe condition and repair.
8.07 Boats and Water craft. Unless otherwise approved in writing by the Board, only the following water craft shall be allowed in any Lake Area: power boats operated by the Association or the Declarant for maintenance, safety, tour or other community purposes; sailboats; canoes; kayaks, paddle boats; and electrical or battery operated boats. Except for the Association's and Declarant's boats, no gasoline or other combustible powered boats shall be permitted. No water craft shall be used for residential purposes (whether temporary or permanent). The size of all water craft shall be subject to restriction by the Board. All water craft must be registered with the Association and must bear assigned identification numbers. No water craft shall be operated so near the shore of the Lakes as to unnecessarily disturb the Owners, Residents or Tenants or otherwise create a nuisance.
8.08 Lake Patrol. One or more persons may be named by the Association to constitute the Lake Patrol. The Lake Patrol shall have the authority to restrict the usage of the Lake Area by any person or water craft due to negligence in the operation of a water craft, or violation of any safety regulation or Association Rule regarding Lake usage or for reasons elsewhere set forth in This Declaration. --Any person whose use of the Lake Area is restricted by the Lake Patrol may request review of such restriction by the Board, the decision of which shall be binding.
ARTICLE IX
Architectural Committee
9.01 Creation of Committee. There is hereby established the Architectural Committee of the Association (the "Committee"), which committee shall have the purpose, power and obligation to review or cause to be reviewed all plans and specifications for construction, alteration and improvement upon any part of the Property to ensure that they comply with the Covenants of this Declaration. The Committee may charge reasonable fees for its services.
9.02 Membership. The Architectural Committee shall be composed of three members, who shall select a chairman. The members shall be appointed by and serve at the pleasure of Declarant until such time as Declarant no longer owns any Lot or parcel in the Property or for fifteen years from the effective date of this Declaration, whichever first occurs. Thereafter, the members shall be elected by the Board of the Association upon such terms as shall be provided in the bylaws.
9.03 Architectural Rules. The Architectural Committee, by unanimous vote or unanimous written consent, may adopt, amend, and repeal rules and regulations regarding the architectural style, nature, kind, shape, height, materials, exterior colors, surface texture, and location of any improvement on a Lot, which such rules and regulations shall be called the Architectural Rules. The Architectural Rules shall not be inconsistent with the Declaration, the Articles, the Bylaws, or the Flat. Such Rules shall establish a procedure for the preparation and submission of applications for any such construction, improvement or alteration.
9.04 Committee Approval Required. No construction, improvement, alteration or other work that in any way alters the exterior appearance of any Residence shall begin until the approval of the Architectural Committee has been obtained, which shall require the signatures of two of the three members of the Committee. The Committee shall refuse to approve any plans or specifications that, in its opinion, are not suitable or desirable for aesthetic or other reasons and it shall consider the suitability of the proposed construction, improvement or alteration, the material that will be utilized, the site upon which such construction; improvement or alteration is to be located, the harmony thereof with the surroundings, and the effect thereof on the Property. Any application not approved or rejected after sixty days from its filing with the Committee shall be deemed approved. All decisions of the Committee shall be final unless appealed in writing to the Board within ten days of the Committee decision. The decision of the Board shall be final. No Owner, Occupant or other party shall have recourse against the Committee or the Board for its refusal to approve any such plans or specifications.
9.05 Conflicts of Decision. No waivers of these restrictions may be made by the Architectural Committee, except as is specifically provided in this Declaration. In the event of irreconcilable conflict between this Declaration and decisions of the Committee, this Declaration shall control, and the burden of compliance shall remain always on the Owner and Occupant. The Committee, its members, and the Association shall not have any liability for acts or omissions done in good faith.
ARTICLE X
General Provisions
10.01 Binding Effect of Declaration. The Covenants contained herein shall run with, be for the benefit of, bind and burden the land and shall be binding upon and inure to the benefit of all Declarant's successors in title, interest or possession in all and every part of the Property or portion thereof after the date on which this instrument is recorded.
10.02 Dominant Tenement. Each of the Lots shall constitute the dominant tenement and be entitled to the benefit of the covenants herein contained as against all of the other Lots in the Property which shall constitute the servient tenements.
10.03 Effective Date. This Declaration and the covenants herein contained shall be effective on the date first stated on page one hereof, or on the date the same is placed of record in the office of the Maricopa County Recorder, whichever first occurs.
10.04 Term. These covenants shall remain in force until twenty years from the effective date, and thereafter said covenants shall be automatically extended for successive periods of ten years, unless and until the then Owners of three-fourths of the Lots affected hereby; before the end of such period; shall revoke the same by written instrument, duly acknowledged and recorded.
10.05 Perpetuities and Restraints on Alienation. If any of the covenants, conditions or restrictions created herein shall be unlawful, void or voidable by violation of the common-law rule against perpetuities, then said term shall be reduced to a period of time that shall not violate the rule against perpetuities under the laws of Arizona.
10.06 Deeds. Deeds of conveyance of all or any of the Lots shall incorporate by reference all the provisions contained in this document, provided that whether or not recited in such deeds of conveyance, these restrictions shall be binding upon every person affected by its terms.
10.07 Enforcement. These Covenants may be enforced by the Association or by the beneficial Owner of any Lot, or portion thereof, in the Property, or by any one or more of said Owners; provided, however, that except as may otherwise be provided herein any breach of the Covenants, or any right of re-entry by reason thereof, shall not defeat or affect the lien of any mortgage or deed of trust made in good faith and for value upon said Lot, but each and all of said Covenants shall be binding upon and effective against any Owner of said Lot whose title thereto is acquired by foreclosure trustee's sale or otherwise; and provided also that the breach of any of said Covenants may been joined, abated or remedied by appropriate proceedings, notwithstanding the lien or existence of any such deed of trust or mortgage. Failure by the Association or by any Owner to enforce any Covenant herein contained shall in no event be deemed a waiver of the right to do so thereafter or a consent to further or subsequent breach. Violation of any one or more of these Covenants may be enjoined by any court of competent jurisdiction and/or damages may be sought and awarded. In the event an action is taken into court for the enforcement of any provision is this Declaration, reasonable expenses including reasonable attorney fees, court costs, title search fees, interest and all other costs and expenses shall be allowed to plaintiff, and otherwise as permitted by law.
10.08 Severability. If any provision herein or the application thereof in any circumstance is held invalid, it shall not affect the validity of the remainder of this Declaration or the application of such provision to different circumstances.
10.09 Amendment. The provisions of this Declaration and any supplements may be modified or rescinded by an instrument in writing setting forth such modification or rescission, as provided in this section.
A. This Declaration, any Master Declaration Supplement, and any Tract Declaration may be amended or rescinded upon the affirmative vote of seventy-five percent of the Association votes at any annual or special meeting called for the purpose. The vote of the Members shall be evidenced by recording a Certificate of Amendment duly executed by the president or vice president and attested by the secretary of the Association, certifying the facts of an election duly called and held at which the Members or their proxies cast votes affirmatively for the adoption of the amendment, and such further and related information and matters as shall to such officers be deemed appropriate.
B. Notwithstanding the provisions of the foregoing paragraph (A):
1. A Master Declaration Supplement and a Tract Declaration may be amended by an instrument executed and recorded solely by the Declarant. No Master Declaration Supplement or Tract Declaration amendment shall be effective if made during the period in which Declarant has Class B voting rights, unless Declarant shall consent to and execute the same.
2. No amendment limiting, rescinding or otherwise modifying in any respect any right, power, privilege, immunity or easement granted or reserved to Declarant in this Declaration shall be effective unless such instrument is also signed and acknowledged by Declarant.
3. Declarant reserves the right to amend this Declaration or a Master Declaration Supplement or a Tract Declaration in such fashion as may be requested by the United States Department of Housing and Urban Affairs or the Federal Housing Administration or the U.S. Veterans Administration, or any other U.S. government agency with jurisdiction over the financing or affairs of the Property or the Association, such request being a condition precedent to such agency's approval of this Declaration as it may be amended from time to time, or as may be requested by any federally chartered lending institution such request being a condition precedent to the lending of funds upon the security of any Lot or Parcel in the Property. Any such amendment shall be effective upon Declarant recording a Certificate of Amendment duly executed and acknowledged solely by Declarant (though the instrument may bear the execution of others) identifying the agency or institution requesting the amendment and setting forth the amendment. The recording of such a certificate shall be deemed conclusive proof of the request and the need for amendment, and shall be binding upon all of the properties and every person having an interest therein. If any such amendment deletes, diminishes or alters the power of Declarant to retain control of the Association and its activities and of the development of the Property, Declarant shall have the unilateral right to prepare, provide for, and adopt an amendment to this and any supplemental instrument, making other and different control provisions without a vote of the Association.
4. Should the consent of any First Mortgagee or other person to each such material modification or rescission be necessary, that consent shall not be unreasonably withheld.
C. Notwithstanding the provisions of the foregoing paragraph (A), if any legislative act, this Declaration, the Association Articles or its Bylaws require the consent or agreement of all of the Owners or a specified percentage of Owners more than required herein for any such amendment or for any action specified in this Declaration, then any instrument so modifying or rescinding this Declaration or any provision hereof with respect to such action shall be effective only upon the vote of Owners of not less than such specified percentage, as well as the other consents required by the foregoing provisions.
D. Any amendments, modification or rescission accomplished under any of the provisions of this section shall be effective upon recording of the instrument providing therefor, executed and acknowledged as herein above provided.
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