Planned Residential Development Booklet
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Trevino at Glen Lakes
General Plan Major Map Amendment
MGPA 20-01
R1-6 Planned Residential Development
ZON19-17
NEC of 55th Avenue & Northern Avenue
June 15, 2020
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PROJECT
TEAM
Applicant / Owner:
City of Glendale
5850 West Glendale Avenue
Glendale, AZ 85301
Civil Engineer:
Zach Hilgart/Rob Gubser
HILGARTWILSON, LLC
2141 E. Highland Ave, Suite250
Phoenix, AZ 85016
Developer:
Homes by Towne
706 East Bell Road, Suite 212
Phoenix, AZ 85022
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TABLE OF CONTENTS
I.
Introduction/History
II.
Property Description
III.
Proposed Land Use
IV.
Context Photos
V.
General Plan
VI.
General Plan Amendment - justifications
VII.
General Plan Major Map Amendment – Map
VIII.
Zoning Map – Existing and Proposed
IX.
Zoning Map with Aerial
X.
Planned Residential Development
- application requirements
-required findings
XI.
Project Narrative
XII.
Lot Layout
XIII.
Proposed Development Standards
XIV.
Open Space & Lot Area
XV.
Legal Description
XVI.
Local Street Section
XVII.
Preliminary Landscape & Park Plan
XVIII.
Preliminary Landscape - details
XIX.
Preliminary Wall & Amenity Plan
XX.
Neighborhood Theme Wall & View Fence
XXI.
Housing Product
XXII.
Draft CC&R’s
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I.
INTRODUCTION/HISTORY:
The City of Glendale is processing a General Plan Major Map Amendment and a Rezoning
application for the approximately 42.8 acre site located at the Northeast Corner of 55th Avenue and
Northern Avenue. The site was formerly the Glen Lakes Municipal Golf Course. The Golf Course was
opened in 1966 and purchased by the City of Glendale in 1979.
On December 11, 2018, the City Council passed a resolution authorizing the “Disposition and Sale
of the Property”. In the months leading up to the resolution, the City Council held several
Workshops and on November 27, 2018 gave direction that the Glen Lakes Golf Course would close.
The golf course remained in operation until March of 2019 when it closed, and studies began to
determine the best use for the community.
On June 25, 2019, the City Council approved entering into an Exclusive Listing Agreement (C19-
0596) with Nathan & Associates for marketing, negotiating and assisting the City with the sale of
the Property.
After review of many proposals, the City Council approved a Purchase and Sale Agreement with
Homes by Towne. The proposal included a single-family neighborhood development along with an
open space area that would be become a City Park designed for use by the adjacent neighborhoods.
The Current zoning on the property is A-1 – Agricultural and the General Plan designation is POS –
Parks and Open Space.
II.
PROPERTY DESCRIPTION:
The property is surrounded by residential uses to the north, west and east. The developments to
the north are multiple family developments; townhouses to the west and senior living to the east.
The residential developments to the west are single family neighborhoods with approximately 3.9
dwelling units to the acre. The single-family neighborhoods to the east are approximately 3.5
dwelling units to the acre. The zoning of those areas is as follows:
Northwest boundary – Northern Manor West Townhouses – R-4 multi-family
zoning Northeast boundary – Waymark Gardens - Senior Living - R-4 multi-
family zoning West – Deborah Homes Subdivision – R1-6 residential single-
family zoning
East – Northern Palm subdivision – R1-6 residential single-family zoning
III.
PROPOSED LAND USE:
The proposed General Plan Major Map Amendment includes land uses and densities commensurate
with the existing land uses and densities in the area. The Major Amendment seeks to change the
land use designation on the property MDR 5 – Medium Density Single Family Residential to allow
for the development of a City owned park and a single-family residential neighborhood.
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IV. Context Photos
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V.
GENERAL PLAN
Excerpt from General Plan page 2-1
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Excerpt from: General Plan - Page 2-7
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The General Plan is organized by “Theme”. The General Plan has 6 Themes:
Growth and Development Theme
Community Preservation and revitalization Theme
Economic Vitality Theme
Connectivity Theme
Public Services Theme
Environmental Sustainability Theme
These “Themes” contain elements, goals and policies that are intended to guide the future of the city over a 10 -
year period. By State Statute, the General Plan is required to go through a review process every 10 years and be
ratified by the voters of the City of Glendale.
VI.
General Plan Amendments
The General Plan contains both maps and text. Both maps and text amendments are classified as either “minor”
or “major”. Minor map and text amendment requests can occur through the year. Major maps amendments
occur once a calendar year in order to provide the public with ALL requests at one time rather than allowing
multiple requests throughout the year. The objective is to process all major changes, as established by the
Envision Glendale 2040 General Plan, with adequate time for the public to participate in the process.
General Plan Major Map Amendment
The following information provides justification for approval related to the general plan elements that are
relevant to this proposal. Each of the Six General Plan Themes with the Element and Goal are identified along
with a response to justify the need for a General Plan Major Map Amendment.
A. GROWTH & DEVELOPMENT THEME
LAND USE ELEMENT
Response: The City of Glendale will ensure that all infrastructure is adequately sized for the proposed development.
The newly proposed single-family development will have a detailed engineering analysis to ensure that sufficient
infrastructure exists in the surrounding area and the newly development property.
Response: The companion R1-6 PRD zoning being requested as part of this application will be required to meet the
City of Glendale requirement for infrastructure.
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Response: The City of Glendale requires a Transportation Impact Analysis to ensure circulation in the area is safe for
the traveling public.
HOUSING ELEMENT
Response: The proposed single-family residential neighborhood introduces a neighborhood and housing product
that is consistent in quality and value with other new developments in Glendale. This proposed development will
provide a new neighborhood to an older part of the community that could encourage other investment in the area.
Response: The proposed Planned Residential Development that is a companion to this amendment request places an
emphasis on providing up to date housing types and significant open space areas to promote interaction between
this new community and the existing surrounding neighborhoods.
Response: The proposed Planned Residential Development that is a companion to this General Plan Major Map
amendment proposes a significant amount of open space to provide a benefit to the new community and the
surrounding neighborhood.
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B. COMMUNITY PRESERVATOIN & REVITALIZATION THEME
CONSERVATION, REHABILITATION AND REDEVELOPMENT ELEMENT
Response: The proposed zoning that accompanies this General Plan Major Map amendment proposes a single-family
neighborhood and a significant open space element that will be dedicated to the City for use as a public park to
benefit the existing surrounding neighborhood.
C. ECONOMIC VITALITY THEME
FISCAL ELEMENT
Response: The City of Glendale determined that the demand for golf has decreased since 2005 and the poor
condition of the course infrastructure and the projected operating deficits would be a financial burden the City could
no longer bear.
D. CONNECTIVITY THEME
CIRCULATION ELEMENT
Response: A Traffic Impact Analysis will be required to determine any necessary improvement to existing systems
and infrastructure
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BICYCLE & PEDESTRIAN ELEMENT
Response: A continuous walking path is proposed along the perimeter of the development within the public park
open space area.
E. PUBLIC FACILITIES AND SERVICES THEME
PUBLIC SERVICES, FACILITIES AND BUILDINGS ELEMENT
Response: As part of the requirements for General Plan amendments, the schools providing education for this area
have been notified and have provided a letter of adequate school facilities.
F. ENVIRONMENTAL SUSTAINABILITY THEME
ENERGY ELEMENT
Response: The City of Glendale places an emphasis on new technologies and is encouraging the addition of devices
for recharging of electric vehicles in each single-family home constructed.
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VII.
General Plan Major Map Amendment - Map
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VIII. Zoning Map - A-1 Agricultural to R1-6 Planned Area Development (PRD)
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IX. Zoning Map with Aerial
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X. Planned Area Development
The proposed development is intended to provide greater flexibility in design in order
to provide an open space area for the surrounding neighborhoods. The neighborhood
being proposed will blend with the surrounding area while offering a new housing
product along with a public park surrounding the new neighborhood.
In accordance with the Planned Area Development criteria, the following
requirements have been satisfied:
1.
Name of the development. - Trevino
2.
Existing and proposed zoning. – A-1 to R1-6 PRD
3.
Proposed boundary of the PRD district. – per VIII. Zoning Map exhibit
4. General topography and areas where major grading is proposed – Preliminary Plat exhibit
5.
Preliminary drainage concept – Preliminary Plat exhibit
6.
Accommodations for utilities – Preliminary Plat exhibit
7. Location of all interior and perimeter streets – Preliminary Plat exhibit
8.
Size, location, and use of public or commonly owned open space and facilities – XIII. Open Space
& Lot Area exhibit
9.
Conceptual lot layout. – XI. Lot Layout
10. The area of any sub-units and the number of dwelling units proposed within each unit – XI. Lot
Layout
11. A data table which includes the total gross area, total number of units, gross density, area
devoted to street rights-of-way, and area proposed for open space use – Preliminary Plat
Exhibit.
12. All adjacent lots or parcels and improvements within one hundred fifty (150 feet of site
perimeter. – Preliminary Plat Exhibit
13. Legal description of the property – XIV Legal Description
14. Complete description of the intended nature and character of the development –X. Glen Lakes
Redevelopment Project Narrative
15. Details concerning the purpose, ownership, improvement, and maintenance of all public or
commonly owned open space and facilities –X. Glen Lakes Redevelopment Project
Narrative.
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16. Proposed phasing- X. Glen Lakes Redevelopment Project Narrative
17. General landscape concept - XVI – Preliminary Landscape & Park Plan
18. Outline of proposed conditions, covenants, and restrictions. - DRAFT
19. Proposed amended development standards – XII. Proposed Amended Development
Standards & Typical Lot Detail
20. Typical lot layouts showing the proposed setbacks for interior, comer, and cul-de-sac lots - XII.
Proposed Amended Development Standards & Typical Lot Detail
21.
22. Relationship to surrounding property and proposed screening, buffers, and transitions – XI. Lot
Layout & Surrounding Area
23. Design concept for perimeter walls, entry features, and common areas – XVIII. Neighborhood
Theme Wall & View Fence
24. Proposed cross sections for all interior and perimeter streets – XV. Local Street Section
25. House product design criteria including type, architectural style, color palette, and exterior
materials – XIX. Housing Product
26. Provisions for on-site and off-site drainage X. Glen Lakes Redevelopment Project Narrative
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Required Findings:
The proposal is consistent in substance and location with the development objectives of the General Plan
and any adopted specific area plans.
Pages 11 through 16 of this document provide justification for approval related to the general plan
elements that are relevant to this proposal. Each of the Six General Plan Themes with the Element and
Goal are identified along with a response to justify the need for a General Plan Major Map Amendment.
The proposal will be compatible with other existing and planned development in the area
The proposed development provides residential housing that consistent with the new development
occurring in the City along with existing single-family homes in the area. Manistee Ranch PAD on the
south side of Northern Ave. provides lot sizes similar to those proposed for the development.
The proposal meets or exceeds the City's Subdivision Design Expectations regarding site planning,
architecture, landscaping, building materials and colors, and screening of mechanical equipment
The proposed development meets and exceeds the Design Expectations by proposing a neighborhood that provides
homes and overall design and development standards that are more consist with new neighborhood communities.
Some of the features include coordinated architectural design with building materials and colors that create a
common theme. Landscaped entry features and perimeter walls that provide a sense of place. A linear park
surrounding the neighborhood to unite the new neighborhood with the existing neighborhoods.
The proposal will result in a quality living environment and accommodate desired lifestyles.
The proposed development offers housing products that are currently being built in subdivisions with the
communities. The area of the proposed development offers a wide variety of housing types to accommodate
various lifestyles. Homes immediately adjacent to this proposed development include single family,
townhomes and apartments.
The proposed project amenities including equestrian and pedestrian trails, bike paths, landscaped
areas, entry features, decorative theme walls, parks, playgrounds, and other public or commonly
owned open space and recreation facilities are adequate and appropriate for this development
The proposed development includes amenities that will benefit the new neighborhood and the existing
neighborhood. Those amenities include pedestrian trails, landscaped entry features, decorative theme
walls and liner parks with play equipment
The type and quality of house products will be consistent with the intended character of the development.
The housing type proposed will be consistent with the intended character of the development offering housing types
that offer modern amenities. The housing architecture will blend with the overall development design and will
complement the area.
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XI. Project Narrative
Glen Lakes Redevelopment
Project Narrative
INTRODUCTION & HISTORY
This proposal is for a single-family home neighborhood with a park that will be dedicated to the city upon
completion. The request consists of a General Plan Amendment from POS (Parks and Open Space) to POS
(Parks and Open Space) and MDR (Medium Density Residential 3.5 to 5.0 dwelling units per acre) and Rezone
from A-1 (Agricultural) to R1-6 PRD (Single-Family Residence Planned Residential Development) for a new
housing development and a public park on 42.8 acres. The site is located at 5450 West Northern Avenue,
North of the Northeast Corner of 55th Avenue and Northern Avenue, in the Barrell Council District.
Glen Lakes Golf Course was originally farmland and was developed as a 9-hole golf course in 1966. The City of
Glendale purchased the golf course in 1979 for use as a municipal golf course. The golf course remained in
operation until March of 2019 when it closed, and studies began to determine the best use for the
community.
The property is approximately 42.8 acres and is surrounded by residential uses to the north, west and east.
The developments to the north are multiple family developments; townhouses to the west and senior living to
the east. The residential developments to the west are single family neighborhoods with at approximately 3.9
dwelling units to the area and the single-family neighborhood to the east are approximately 3.5 dwelling units
to the acre. The zoning of those areas is as follows:
Northwest boundary – Northern Manor West Townhouses – R-4 multi-family zoning
Northeast boundary – Waymark Gardens - Senior Living - R-4 multi-family zoning
West – Deborah Homes Subdivision – R1-6 residential single-family zoning
East – Northern Palm subdivision – R1-6 residential single-family zoning
After many public meetings and workshops, a resolution was passed directing the City Manager to sell the
property. The resolution cited a decreased demand for golf since 2005 and projected operating deficits.
Late 2019, the City hired Nathan and Associates to market the property for sale and provided a conceptual
plan of development that included a single-family development with a public park.
OFF-SITE CIRCULATION
55th Avenue is fully improved; a sidewalk will be added to the east side of 55th Avenue. 53rd Avenue will be
widened to match the street section to the north and south of the Property, including a sidewalk on the west
side of the road. Refer to Figure 2, Site Plan and Zoning Map for offsite circulation system.
ON-SITE CIRCULATION
All internal streets will have a 50-foot right-of-way and will be public. The development of the internal street
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network will be designed to comply with the City of Glendale standards. A meandering trail along the Property
will provide pedestrian connectivity between the parks/open spaces.
DEVELOPMENT SCHEDULE
The Project phasing will be determined at the time of Final Plat. Actual timing of the phases will depend on
market conditions and absorption.
COMMUNITY FACILITIES AND SERVICES
All necessary community facilities to service the Project will be provided.
Recreational Amenities
The linear parks running along the length of the site adjacent to 53rd and 55th Avenue will
provide a core of activities that foster community pursuits and social interaction. A trail along
the northern boundary will provide pedestrian connectivity between the parks. The Project
will provide ample open space areas with an amenity package designed for the residents.
This redevelopment of the former Glen Lakes Golf Course will create an infusion of new
single-family residential in the area, coupled with new public recreation opportunities for the
future residents and surrounding community. The linear parks will be dedicated to the City
and will be public parks maintained by the City of Glendale.
PUBLIC UTILITIES AND SERVICES
All necessary utilities to serve the Project are currently available or will be provided to the site during
development. Utilities and services for the Project will be provided by the following providers.
•
Water: City of Glendale
•
Wastewater: City of Glendale
•
Electrical: APS
•
Telephone: Century Link
•
Cable: Cox Communications
•
Natural Gas: Southwest Gas
•
Irrigation: SRP
WATER AND WASTEWATER
Water and wastewater service for the Project is anticipated to be provided by the City of Glendale.
The Project will be served by an internal network of looped 8-inch water, and 8-inch gravity sewer. The
network of the looped 8-inch water line will connect to the existing 12-inch water main along 55th Avenue
and the existing 8-inch water main along 53rd. Avenue. The proposed 8-inch sewer line will generally route
the wastewater flows from each lot within the Project and tie-in at two points into the existing 12-inch sewer
main along 55th Avenue.
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DRAINAGE
The area surrounding the Project generally slopes to the southwest at a slope of 0.5%. Under current
conditions, runoff produced onsite combines with a portion of the offsite flow along the eastern boundary and
discharges into the existing lakes within the Project.
The Project is located within the Federal Emergency Management Agency’s (FEMA) Flood Insurance Rate Map
(FIRM) 04013C1720L dated October 16, 2013. According to the FEMA FIRM, the Project is located entirely
within Flood Hazard Zone “X”. FEMA defines Zone “X” as: “The flood insurance rate zone that corresponds to
the areas outside the 100-year floodplains, areas of 100-year sheet flow flooding where average depths are
less than one foot, areas of 100-year stream flooding where the contributing drainage areas are less than one
square mile, or areas protected from the 100-year flood by levees. No base flood elevations or depths are
shown within this zone.”
Onsite flows will be conveyed to retention basins throughout the Project in appropriate locations. Retention
volume equivalent to the 100-year, 2-hour storm runoff will be provided for all developed portions of the
Project. All offsite flow patterns will be maintained. All drainage design will be in conformance with the City of
Glendale Engineering Design and Construction Standards, 2015.
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XII. Lot Layout & Surrounding Area
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XIII. Proposed Development Standards & Typical Lot Detail
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XIV. Open Space and Lot Area
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XV. Legal Description
XVI. Local Street Section
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XVII. Preliminary Landscape and Park Plan
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XVIII. Preliminary Landscape Plan-details
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XIX. Preliminary Wall & Amenity Plan
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XX. Neighborhood Theme Wall & View Fence
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XXI. Housing Product
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WHEN RECORDED RETURN TO:
Towne Development, Inc.
c/o Kevin G. Kiesl
706 East Bell Road, Suite 212
Phoenix, AZ 85022
DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS
AND EASEMENTS
FOR
TREVINO, A PLANNED COMMUNITY
1
DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS
AND EASEMENTS
FOR
TREVINO, A PLANNED COMMUNITY
THIS Declaration of Covenants, Conditions, Restrictions and Easements for TREVINO,
a planned Community, (hereinafter collectively termed the “Declaration”) is made as of the
_______ day of _______________, 2016, by HBT of Glen Lakes LLC, an Arizona limited
liability company (hereinafter collectively termed (“Declarant”).
INTRODUCTION
A. Declarant is the owner of fee title to that certain real property situated in the City of
Phoenix, Arizona which is more particularly described in Exhibit A (the “Property”).
The Declarant desires to submit the Property to a planned Community form of ownership
in accordance with the Arizona Planned Community Act and this Declaration.
B. Declarant has constructed or will construct on the Property certain improvements as
shown on the Plat referred to below.
C. Declarant intends that all Owners, Occupants, First Mortgagees and other Persons
acquiring an interest in the Property shall at all times enjoy the benefits of, and shall hold
their interest subject to this Declaration, which is Recorded in furtherance of establishing
a planned Community, and for establishing rules for the use, occupancy, management,
and enjoyment thereof, all for the purpose of enhancing and protecting the value,
desirability and attractiveness of the Community and the quality of life for the Owners,
Occupants and Lessees.
D. Declarant and/or the Association may, without obligation, seek approval by the Federal
Housing Administration (hereinafter termed “FHA”), the Veterans Administration
(hereinafter termed “VA”) and by any other governmental agencies or financial
institutions whose approval Declarant deems necessary or desirable.
E. The Property shall be subject to all terms and provisions of this Declaration, as well as
the Articles, Bylaws, Rules and Architectural Guidelines of the Association established
herein in order to cause the Declaration to run with the Property and to be binding upon
the Property and the Owners thereof from and after the date of the recording of this
Declaration, Declarant hereby makes all conveyances of the Property, whether or not so
provided therein, subject to the Declaration herein set forth, and by accepting deeds,
leases, easements or other grants or conveyances to any portion of the Property, the
Owners and other transferees for themselves and their heirs, executors, administers,
trustees, personal representatives, successors and assigns, agree that they shall be
personally bound by all of the Declaration (including but not limited to the obligation to
pay Assessments) hereinafter set forth except to the extent such personas are specifically
excepted herefrom.
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NOW, THEREFORE, DECLARANT hereby declares, covenants and agrees as follows:
ARTICLE 1
DEFINITIONS
Capitalized terms used in this Declaration but not otherwise defined in this Declaration
shall have the meanings specified for such terms in the Arizona Planned Community Act,
A.R.S.§33-1801, et. seq. as amended from time to time. The following words, phrases or terms
used in this Declaration shall have the following meanings:
1.1
“Architectural Guidelines” shall mean the Architectural and landscaping
Guidelines and additional standards promulgated by the Design Review Committee from
time to time as provided in Article 9.
1.2
“Architectural Review Committee” shall mean the committee of the
Association to be created and appointed pursuant to Article 9.
1.3
“Articles” means the Articles of Incorporation of the Association, as amended
from time to time.
1.4
“Assessment” shall mean Regular Assessments, Special Assessments and
Enforcement Assessments as defined in Article 7 and any cost, fees or attorneys’ fees due
from Owner pursuant to this Declaration.
1.5
“Assessment Lien” shall mean the lien created and imposed by the Arizona
Planned Community Act and this Declaration to secure the payment of Assessments,
attorneys’ fees and costs, as well as other fees and charges owed to the Association pursuant
to this Declaration.
1.6
“Association” shall mean TREVINO Neighborhood Association, the Arizona
non-profit corporation organized by Declarant to administer and enforce this Declaration and
to exercise the rights, powers and duties set forth in this Declaration, its successors and
assigns.
1.7
“Association Land” shall mean such part or parts of Property, together with the
buildings, structures and Improvements hereon, and their real property which the Association
may at any time own in fee or in which the Association may at any time have a leasehold
interest, for as long as the Association is the owner of the fee or leasehold interest.
1.8
“Association Rules” shall mean rules adopted by the Association pursuant to this
Declaration, as amended from time to time.
1.9
“Board” shall mean the Board of Directors of the Association.
1.10
“Bylaws” shall mean the Bylaws of the Association as the same may from time to
time be amended or supplemented.
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1.11
“City” shall mean the City of Phoenix, Arizona.
1.12
“Collection Costs” means all costs, fees, charges and expenditures (including,
without limitation, demand fees, lien fees, attorneys’ fees, court costs, filing fees and
recording fees) incurred by the Association in collection and/or enforcing payment of
Assessments, monetary penalties, late fees, attorneys’ fees and costs, interest or other
amounts payable to the Association pursuant to this Declaration.
1.13
“Common Area” means all portions of the Property owned by the Association,
including all improvements located thereon.
1.14
“Common Expenses” shall mean the actual and estimated expenses incurred or
anticipated to be incurred by the Association for the general benefit of all Lots, including any
reasonable reserve, as the Board may find necessary and appropriate pursuant to this
Declaration, the Bylaws and Articles.
1.15
“Community” means the residential Community known as TREVINO and
includes the Property, together with the Lots, Common Area and all other Improvements
located thereon.
1.16
“Community Documents” or “Governing Documents” means this Declaration
and the Articles, Bylaws, and Rules, as amended from time to time.
1.17
“Declarant” shall mean HBT of Glen Lakes LLC, an Arizona limited liability
company, and the successors and assigns of Declarant’s rights and powers hereunder.
1.18
“Declaration” shall mean this Declaration of Covenants, Conditions, Restrictions
and Easements for TREVINO, a planned Community, as amended or supplemented from
time to time.
1.19
“Development Rights” means any right or combination of rights to do any of the
following:
1.19.1 Create easements and Common Area within the Community;
1.19.2 Make the Community part of another Community or planned Community;
1.19.3 Amend the Declaration during the Period of Declarant Control to comply
with the Planned Community Act or any other applicable law or to correct any error or
inconsistency in the Declaration if the amendment does not adversely affect the rights of
any Lot Owner; or
1.19.4 Amend the Declaration during the Period of Declarant Control to comply
with the rules or guidelines in effect from time to time, of any governmental or quasi-
governmental entity or federal corporation guaranteeing or insuring mortgage loans or
governing transactions involving mortgage instruments.
1.20
“Enforcement Assessment” means an assessment levied pursuant to Article 7.
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1.21
“FHA” means the Federal Housing Administration.
1.22
“FHLMC” means the Federal Home Loan Mortgage Corporation.
1.23
“First Mortgage” means any mortgage or deed of trust on a Lot with first
priority over any other mortgage or deed of trust on the same Lot.
1.24
“First Mortgage” means the holder of any First Mortgage. “Eligible First
Mortgagee” shall mean any First Mortgagee who has requested notice of those certain
matters referred to in Article 14.
1.25
“FNMA” means the Federal National Mortgage Association.
1.26
“Identifying Number” means the number or symbol shown on the Plat that
identifies a particular Lot.
1.27
“Improvement” means any physical structure, fixture or facility existing or
constructed, placed, erected or installed on the land included in the Community, including,
but not limited to, buildings, private drives, paving, fences, walls, sculptures, signs,
landscaping, hedges, plants, trees and shrubs of every type and kind, lighting fixtures,
sprinkler and irrigation systems, parking areas and sidewalks.
1.28
“Invitee” means any person whose presence within the Community is approved
by or is at the request of a particular Owner, Lessee or Occupant, including, without
limitation, family members, guests, employees and contractors.
1.29
“Lease” means any agreement, written or oral, for the leasing, rental or
occupancy of the Unit (whether or not money is exchanged) for more than thirty (30) days in
any calendar year to anyone other than: (1) the Owner, (2) the Owner’s spouse, (3) the
Owner’s or the Owner’s spouse’s children or parents, or (4) any individuals living with the
Owner who are maintaining a common household with the Owner.
1.30
“Lessee” means any Person who is the tenant or lessee under a written lease of a
Lot.
1.31
“Lot” shall mean any area of real property, with or without Improvements
thereon, within the Property designated as a Lot on the Plat.
1.32
“Member” means a Person or entity who is or becomes a member of the
Association.
1.33
“Membership” shall mean a Membership in the Association and the
corresponding rights, privileges and responsibilities of the Owners and Declarant pursuant to
Article 2 here.
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1.34
“Occupant” means a Person, other than the Owner, in possession of the Lot at
the request of or with the consent of the Owner.
1.35
“Owner” or “Lot Owner” means the record owner, whether one or more
Persons, of beneficial or equitable title (and legal title if the same has merged with the
beneficial or equitable title) to the fee simple interest of a Lot. Lot Owner shall not include
Persons having an interest in a Lot merely as security for the performance of an obligation, or
a lessee or tenant of a Lot. Lot Owner shall include a purchaser under a contract for the
conveyance of real property, a contract for deed, a contract to convey, an agreement for sale
or any similar contract subject to A.R.S. § 33-741, et seq. Lot Owner shall not include a
purchaser under a purchase contract and receipt, escrow instructions or similar executory
contracts which are intended to control the rights and obligations of the parties to executory
contracts pending the closing of a sale or purchase transaction. In the case of Lots the fee
simple title to which is vested in a trustee pursuant to A.R.S. § 33-801, et.seq. the Trustor
shall be deemed to be the Lot Owner.
1.36
“Property” means the land described on Exhibit A attached hereto, together with
all Improvements situated thereon and all easements and rights appurtenant thereto.
1.37
“Period of Declarant Control” means the time period commencing on the date
this Declaration is Recorded and ending on the day the Declarant no longer owns any Lots.
1.38
“Person” means a natural person, corporation, limited liability company, business
trust, estate, trust, partnership, association, joint venture, government, governmental
subdivision or agency, or other legal or commercial entity.
1.39
“Plat” means the Final Plat for TREVINO recorded on Month, Day, Year as
Book 0000000 of Maps, Page 00, in the records of the County Recorder of Maricopa County,
Arizona, and any amendments, supplements or corrections thereto.
1.40
“Purchaser” means any Person (other than the Declarant) who becomes a Lot
Owner, except for (l) a Person who purchases a Lot and then leases it to the Declarant for use
in connection with the sale of other Lots, (2) a Person who, in addition to purchasing a Lot, is
assigned any Special Declarant Right, or (3) an Affiliate of Declarant.
1.41
“Recording” means placing an instrument of public record in the office of the
County Recorder of Maricopa County, Arizona and “Recorded” means having been so
placed of public record.
1.42
“Regular Assessment” means the assessment levied against the Lots pursuant to
Article 7.
1.43
“Rules” means the rules and regulations adopted by the Board of Directors, as
amended from time to time.
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1.44
“Single Family” shall mean a group of one or more persons each related to the
other by blood, marriage or legal adoption, or a group of not more than three (3) persons not
all so related, who maintain a common household in a Dwelling.
1.45
“Special Declarant Rights” means any right or combination of rights to do any
of the following:
1.45.1 Construct Improvements provided for in this Declaration or shown on the
Plat;
1.45.2 Exercise any Development Right;
1.45.3 Maintain sales offices, management offices, models, and signs advertising
the Community;
1.45.4 Use easements through the Common Areas for the purpose of making
Improvements within the Community;
1.45.5 Appoint or remove any officer of the Association or any member of the
Board of Directors during the Period of Declarant Control; or
1.45.6 Exercise the rights described in Article 2 & 3.
1.46
“VA” means the Veteran’s Administration.
1.47
“Visible From Neighboring Property” shall mean, with respect to any given
object, that such object is or would be visible to a person six (6) feet tall, standing at ground
level on any part of any Lot or Common Area which adjoins the Lot on which such object is
located.
ARTICLE 2
PROPERTY SUBJECT TO THE DECLARATION;
MEMBERSHIP AND VOTING
2.1
General Declaration. The Declarant hereby submits the Property to the
provisions of the Planned Community Act for the purpose of creating a planned community in
accordance with the provisions of the Planned Community Act and hereby declares that the
Property shall be held and conveyed subject to the terms, covenants, conditions and restrictions
set forth in this Declaration. The Declarant designates each Lot for separate ownership or
occupancy. Declarant further declares that all of the easements, restrictions, conditions and
covenants in this Declaration shall run with the Property and shall be binding upon and inure to
the benefit of the Declarant and all Lot Owners, Lessees and Occupants and all other Persons
having or acquiring any right, title or interest in the Community or any part thereof, their heirs,
successors, successors in title and assigns. Each Person who acquires any right, title or interest in
the Community, or any part thereof, agrees to abide by all of the provisions of the Community
Documents. This Declaration shall be binding upon and shall be for the benefit of and
enforceable by the Association. Nothing in this Declaration shall be construed to prevent the
Declarant from modifying the Plat as to any portion of the Property owned by the Declarant or
from dedicating or conveying portions of the Property owned by the Declarant, including streets
or roadway, for uses other than as a Lot or Common Area. As long as the Declarant owns any
Lot, Declarant approval is also required for any amendment to this Declaration.
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2.2
Name of Community. The name of the Community created by this
Declaration is TREVINO.
2.3
Name of Association. The name of the Association is TREVINO Neighborhood
Association.
2.4
Disclaimer of Representations. Declarant makes no representations or
warranties whatsoever that (i) the Community will be completed in accordance with the plans for
the Community as they exist on the date this Declaration is recorded; (ii) any Property subject to
this Declaration will be committed to or developed for a particular use or for any use; or (iii) the
use of any Property subject to this Declaration will not be changed in the future.
2.5
Membership. Every Owner (including the Declarant) of a Lot shall be a Member
of the Association. For the purposes of this Section, Lots owned by the Declarant are not subject
to Assessments so long as there is a Class “B” Membership in the Association. Each such Owner
(including the Declarant) shall have one Membership for each lot owned by the Member and
each such Membership shall be appurtenant to and may not be separated from ownership of the
Lot to which the Membership is attributable.
2.6
Voting. The Association shall have two classes of voting memberships, Class
“A” and Class “B”.
2.6.1 Class “A”. Class “A” Members shall be all Owners, except the Class “B”
Members, if any. Class “A” Members shall have one equal vote for each Membership held by
such Owner and for which such Owner is paying a full Assessment.
2.6.2 Class “B”. The Class “B” Members shall be the Declarant and any
Developers who are Owners. Class “B” Members shall be entitled to three (3) votes for each
Membership held by such Class “B” Member. Unless otherwise specified in this Declaration, the
Bylaws or an agreement between Declarant and a Developer, the vote for each Membership held
by Developers shall be exercised by the Declarant in its sole discretion and each of the
Developers shall be deemed hereby to grant to Declarant a power coupled with an interest to cast
such Developer's vote for each such Membership. The Class “B” Membership shall cease and be
converted to Class “A” Memberships when Period of Declarant Control ends or sooner if the
Declarant so states in writing their desire to do so. From and after the termination of Class B
Members, whichever occurs first, the Class “B” Members shall be deemed Class “A” Members
entitled to one vote for each Membership held pursuant to this Article 2; provided, however, that
the Declarant shall retain the right to approve or disapprove certain actions of the Board as
described in this Declaration.
2.7
Right to Vote. No change in the ownership of a Membership shall be effective
for voting purposes unless and until the Board is given actual written notice of such change and
is provided satisfactory proof thereof. The vote for each such Membership must be cast as a unit,
and fractional votes shall not be allowed. The Membership rights of an Owner which is a
corporation, partnership, trust or other legal entity may be exercised by any officer, director,
8
partner or trustee or by any other individual designated from time to time by the Owner in a
written instrument provided to the Secretary of the Association. In the event that a Membership
is owned by more than one Person such Owners shall designate in a written instrument provided
to the Secretary of the Association which one of them is authorized to vote their Membership,
and if such Owners are unable to agree among themselves as to how their vote or votes shall be
cast, they shall lose their right to vote on the matter in question. If any Member casts a vote
representing a certain Membership, it will thereafter be conclusively presumed for all purposes
that he was acting with the authority and consent of all other owners of the same Membership
unless objection thereto is made at the time the vote is cast. In the event that more than one vote
is cast for a particular Membership, and the Secretary of the Association has not been provided
with a written instrument designating the Person authorized to vote the Membership, none of
said votes shall be counted and all said votes shall be deemed void.
2.8
Membership Rights. Each Member shall have the rights, duties and obligations
set forth in this Declaration and such other rights, duties and obligations as are set forth in the
Articles, Bylaws, Association Rules and Design Guidelines as the same may be amended from
time to trine.
2.9
Transfer of Class ''A” Membership. The rights and obligations of the owner of
a Class “A” Membership in the Association shall not be assigned, transferred, pledged, conveyed
or alienated in any way except upon transfer of ownership of an Owner's Lot or Parcel, as
applicable, and then only to the transferee of ownership of the Lot or Parcel. A transfer of
ownership of a Lot or Parcel may be effected by deed, intestate succession, testamentary
disposition, foreclosure of a mortgage or deed of trust of record, court order or such other legal
process as now in effect or as may hereafter be established under or pursuant to the laws of the
State of Arizona. Any attempt to make a prohibited transfer shall be void. Any transfer of
ownership of a lot or Parcel shall operate to transfer the Membership(s) appurtenant to said lot or
Parcel to the new Owner(s) thereof.
2.10 Suspension of Voting Rights. Any Member who fails to pay the Regular
Assessments, Special Assessments, or Enforcement Assessments authorized by this Declaration
within sixty (60) days of the due date thereof, shall have all voting rights as provided herein
suspended until such amounts plus any accrued interest, attorney's fees and/or collection costs
are paid in full.
ARTICLE 3
EASEMENTS AND DEVELOPMENT RIGHTS
3.1
Utility Easement. There is hereby granted and created an easement upon, across,
over and under the Common Areas and the Lots for the installation, replacement, repair or
maintenance of utility lines and systems, including, but not limited to, natural gas, water, sewer,
telephone, electricity and cable television or other communication lines and systems. By virtue
of this easement, it shall be expressly permissible for the providing utility or service company,
the Association or the Declarant to install and maintain the necessary utility lines, pipes, facilities
and equipment on the Common Areas and the Lots, but no sewer lines, electrical lines, water
lines, or other utility or service lines or facilities may be installed or located on the Common
9
Areas or the Lots except as initially designed, approved and constructed by the Declarant or as
approved by the Board of Directors. This easement shall in no way affect any other recorded
easements on the Common Areas. Notwithstanding anything to the contrary contained in this
Section, no sewers, electrical lines, water lines, telephone, data, or fiber optic lines and cables, or
other utility or service lines may be installed or located on the Common Areas except as
originally installed by the Declarant or as approved by the Board or allowed by the Rules. The
easements in this Section shall in no way affect any other Recorded easements on the Common
Areas.
3.2
Easements for Ingress and Egress. There is hereby granted and created
easements for ingress and egress for pedestrian traffic over, through and across sidewalks, paths,
walks, and lanes that from time to time may exist upon the Common Areas. There is also
granted and created an easement for ingress and egress for pedestrian and vehicular traffic over,
through and across such driveways as from time to time may be paved and intended for such
purposes. Such easements shall run in favor of and be for the benefit of the Owners, Lessees,
Occupants and Invitees.
3.3
Lot Owners’ Easements of Enjoyment.
3.3.1 Every Owner, Lessee and Occupant shall have a nonexclusive right and
easement of enjoyment in and to the Common Areas which shall be appurtenant to and
shall pass with the title to every Lot, subject to the following provisions:
(a)
The Master Governing Documents, these Community Documents, as
amended from time to time and any other applicable covenants;
(b)
The right of the Board to adopt rules, regulations or policies regulating the
use and enjoyment of the Property, which rules and regulations may require that guests of
any Owner Lessee or Occupant entitled to use the Common Areas pursuant to this
Section must be accompanied by a Member Lessee or Occupant entitled to use the
Common Areas. The Rule may limit the number of guests who may use the Common
Areas at any one time and may restrict the use of the Common Areas by guests to certain
specified times;
(c)
The right of the Association to convey the Common Areas or subject the
Common Areas to a mortgage, deed of trust, or other security interest, if such action is
approved by Owners entitled to cast at least two-thirds (2/3) of the votes in the
Association. Any such action by the Association shall be done in the manner and subject
to the limitations set forth in the Community Act;
(d)
The right of the Association to grant non-exclusive easements over all or a
portion of the Common Areas if the Board of Directors determines that the granting of
the easement is necessary for the development or maintenance of the Common Areas or
beneficial to the Owners, Lessees and Occupants;
(e)
All rights and easements set forth in this Declaration including, but not
limited to, the rights and easements granted to the Declarant this Declaration;
(f)
The right of the Board to suspend the right of an Owner or Resident to use
recreational facilities within the Common Area (i) for any period during which any
charge against an Owner’s Lot or Parcel remains delinquent; (ii) for a period not to
10
exceed thirty (30) days for a single violation of this Declaration, a Tract Declaration or
the Association Rules; and (iii) for successive suspension periods if any such infraction
is not corrected during any prior suspension period;
(g)
The right of the Association to dedicate or transfer all or any part of the
Common Areas to any public agency, authority, or utility company and for such purposes
and subject to such conditions as may be agreed to by the Association; and
(h)
The right of the Board to impose reasonable Membership requirements
and charge reasonable Membership, admission, or other fees for the use of any
recreational facility situated upon the Common Area;
3.3.2 The easement of enjoyment in and to the Common Areas shall not be
conveyed, transferred, alienated or encumbered separately and apart from a Lot. Such
right and easement of enjoyment in and to the Common Areas shall be deemed to be
conveyed, transferred, alienated or encumbered upon the sale of any Lot, notwithstanding
that the description in the instrument of conveyance, transfer, alienation or encumbrance
may not refer to such right and easement.
3.4
Declarants' Rights and Easements.
3.4.1 So long as the Declarant is marketing Lots for sale or lease in the
Community, Declarant and its employees and agents shall have the right and an exclusive
easement to construct, locate, relocate and maintain sales and/or leasing offices,
construction trailers and storage areas and related facilities on the Common Areas. This
shall include the right to enclose and lock portions of the Common Areas upon which
these rights are being exercised. Declarant reserves the right to maintain model Lots,
management offices, storage areas and sales and leasing offices in any Lots owned or
leased by Declarant and on any portion of the Common Areas in such number, of such
size and in such locations as Declarant deems appropriate. Declarant and its employees
and agents shall have the right and an easement to install or post advertising, marketing
or directional signs, other signs, flags, awnings, lights and banners on the Common Areas
in connection with its marketing of Lots for sale or lease or to host events on the
Common Areas designed to attract prospective tenants and/or purchasers to the
Community.
3.4.2 Declarant reserves the right to retain all personal property and equipment
used in the sales, management, construction and maintenance of the Community that has
not been represented to the Association as property of the Association. Declarant reserves
the right to remove from the Community any and all goods and improvements used in
development, marketing and construction, whether or not they have become fixtures.
3.4.3 Declarant and its employees, agents, contractors and subcontractors shall
have the right and an easement on, over and across the Common Areas and the Lots to
erect and construct the Common Areas and the Lots shown on the Plat and all other
Improvements Declarant may deem appropriate and to use the Common Areas and by
Lots owned by Declarant for construction or renovation related purposes including the
storage of tools, machinery, equipment, building materials, appliances, supplies and
fixtures, and the performance of work in the Community.
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3.4.4 The Declarant and its employees, agents, contractors and subcontractors
shall have an easement through the Common Areas and the Lots for the purpose of
assessing, testing (including invasive testing), inspecting and evaluating any potential
construction defect or need for maintenance on the Community, and completing any
renovations, warranty work or modifications to the Common Areas or Lots which
Declarant deems necessary or desirable.
3.4.5 The Declarant and its employees, agents, contractors and subcontractors
shall have the right and an easement on, over, and through the Common Areas as may be
reasonably necessary for the purpose of performing the Declarant's obligations under the
Community Act and the Community Documents and for the purpose of exercising
Special Declarant Rights whether arising under the Community Act or reserved in this
Declaration. The rights granted to or reserved by the Declarant in this Section 3.4 are in
addition to any rights granted to or reserved by the Declarant elsewhere in the
Community Documents.
3.4.6 To the extent not expressly reserved by or granted to Declarant by other
provisions of this Declaration, Declarant reserves all Development Rights and Special
Declarant Rights. Except as expressly set forth in this Declaration, there is no time limit
within which any Development Right or Special Declarant Right must be exercised or
will lapse, and there are no conditions or limitations on the exercise of any Development
Right or Special Declarant Right.
3.4.7 In the event of any conflict or inconsistency between this Section 3.4 and
any other provision of the Community Documents, this Section 3.4 shall control and
prevail over such other provisions. The rights of the Declarant set forth in this Section 3.4
shall be enforceable by injunction, by any other remedy available at law or in equity
(including, but not limited to, the right to sue for damages) and/or by any means provided
in this Declaration.
3.5
Future Easements for Utilities and Maintenance. On behalf of all Owners, the
Association may create and dedicate easements over the Common Areas for the following
purposes: (1) for the benefit of all service providers for the installation, repair, replacement and
maintenance of sanitary sewers, water, electric, gas and telephone lines and facilities, heating
and air-conditioning facilities, cable, telephone or master television antenna or satellite lines or
cables, and drainage facilities, and for ingress to and egress from the Community in connection
therewith, and (2) for ingress to and egress from the Community for the benefit of all municipal,
state and federal vehicles, including, without limitation, all emergency and service type vehicles
as may be required from time to time to service the Community and the Owners, Lessees and
Occupants including, without limitation, for U.S. Mail distribution and collection and private or
municipal refuse collection, without the joinder or consent of any First Mortgagee or other
Person.
ARTICLE 4
USE AND OCCUPANCY RESTRICTIONS
4.1
Residential Use. All Lots shall be used, improved and devoted exclusively to
residential use. No trade or business may be conducted on any Lot or in or from any Lot, except
that an Owner, Lessee or Occupant of a Lot may conduct a business activity within a Lot so long
12
as: (1) the existence or operation of the business activity is not apparent or detectable by sight,
sound, vibration or smell from outside the Lot; (2) the business activity conforms to all
applicable zoning ordinances or requirements for the Community; (3) the business activity is
conducted solely in the Lot; (4) the business activity does not involve persons coming to the Lot
or the door-to-door solicitation of Owners, Lessees or Occupants; and (5) the business activity is
consistent with the residential character of the Community and does not constitute a nuisance or
a hazardous or offensive use or threaten the security or safety of other Owners, Lessees or
Occupants, as may be determined from time to time in the sole discretion of the Board of
Directors. The terms “business” and “trade” as used in this Section shall be construed to have
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: (1) such activity is engaged
in full or part time; (2) such activity is intended or does generate a profit; or (3) a license is
required for such activity. The leasing of a Lot by the Owner thereof shall not be considered a
trade or business within the meaning of this Section.
4.2
Leases. No Lot shall be leased by a Lot Owner for an initial term of less than six
(6) months. No portion of a Lot which is less than the entire Lot shall be leased. The Association
may establish Rules concerning the procedure to be utilized by Lot Owners that seek to rent or
lease their Lots to ensure compliance with this Section. All leases must be in writing and must
provide that the terms of the lease are subject in all respects to the provisions of this Declaration
and the Rules and that any violation of this Declaration or the Rules by the Lessee or the other
occupants shall be in default under the lease. There shall be no subleasing of the Lots or
assignment of leases. At least ten (10) days before executing a lease, the Lot Owner shall provide
the Association with a copy of the proposed lease and the following information: (1) the
commencement date and expiration date of the lease term; (2) the names of each of the Lessees
and each other Person who will reside in the Lot during the lease term; (3) the telephone number
at which the Lessee can be contacted; (4) the address and telephone number at which the Owner
can be contacted by the Association during the lease term; and (5) the name, address and
telephone number of a person whom the Association can contact in the event of an emergency
involving the Lot. Any Owner who leases his Lot must provide the Lessee with copies of this
Declaration and the Rules. A Lot Owner shall be liable for any violation of this Declaration or
the Rules by the Lessees or other occupants of the Lot and their guests and invitees and, in the
event of any such violation, the Lot Owner, upon demand of the Association, shall immediately
take all necessary steps to correct any such violations or, if demanded by the Board of Directors,
immediately take all necessary action (including, but not limited to, legal action) to remove from
the Lot the Lessees and all other persons residing in the Lot pursuant to the lease. The provisions
of this Section shall not apply to the leasing or subleasing of a Lot by the Declarant or the
Association.
4.3
Nuisances. No Owner shall keep or maintain anything or shall suffer or cause
any condition to exist in which impairs any easement or right of any other Owner or otherwise
impairs or interferes with the use and enjoyment by other Owners of the Common Areas and
their respective Lots and Units. No rubbish or debris of any kind shall be placed or permitted to
accumulate upon or adjacent to any Lot, and no odors shall be permitted to arise therefrom, so as
to render Lot or any portion thereof unsanitary, unsightly, offensive or detrimental to the
13
neighborhood or to the Owners and tenants of their respective Lots. No Owner or resident shall
permit anything or condition to exist upon a Lot which shall induce, breed or harbor infectious
plant diseases or noxious insects. No Owner shall commit or permit any waste on the Owner’s
Lot. No noxious, offensive, or illegal activity shall be allowed on the Lots nor shall anything be
done thereon which may be, or may become, an annoyance or nuisance to the neighborhood, or
which shall in any way interfere with the quiet enjoyment of each of the Owners and tenants of
their respective Lots and Units. Without limiting the generality of the foregoing, no speakers,
horns, sirens or other sound devices, except security devices used exclusively for security
purposes, shall be located or used on a Lot. The Board in its sole discretion shall have the right
to determine the existence of any such nuisance.
4.4
Trash Containers and Collection. No garbage or trash shall be placed or kept on
the Common Areas except in covered containers of a type, size and style, which are approved by
the Board of Directors. The Board of Directors shall have the right to adopt and promulgate rules
and regulations regarding garbage, trash, trash containers and collection which are not in conflict
with the rules and regulations of the City of Phoenix, which is the provider of the trash service.
No incinerators shall be kept or maintained in any Lot. All trash, garbage or rubbish must be kept
in sanitary containers and must be bagged and deposited in designated trash receptacles. No
rubbish, trash or garbage shall be kept on any Patio. The Rules may contain provisions governing
the disposal of trash, garbage and rubbish in the Community.
4.5
Machinery and Equipment. No machinery or equipment of any kind shall be
placed, operated or maintained upon the Community except such machinery or equipment as is
usual and customary in connection with the uses permitted by this Declaration, and except that
which Declarant or the Association may require for the construction, operation and maintenance
of the Common Areas.
4.6
Animals and Pets. No animals, livestock, or poultry shall be raised, bred, or kept
on any Lot except customary (in the United States) household pets such as dogs, cats, and
household birds maybe kept solely as domestic pets and not for commercial purposes. No
animal shall be allowed to make an unreasonable amount of noise, or to become a nuisance or
disturb the health, safety, welfare or quiet enjoyment of the Lots by the Owners. No structure for
the care, housing or confinement of any animal shall be maintained so as to be Visible From
Neighboring Property. Upon the written request of any Owner, the Board shall conclusively
determine, in its sole and absolute discretion, whether, for the purposes of this Section, a
particular animal is a generally recognized household pet, or a nuisance, or whether the number
of animals on any such property is reasonable. Any decision rendered by the Board shall be
enforceable as other restrictions contained. All animals shall be kept under reasonable control at
all times and in accordance with applicable laws and whenever an animal is allowed to leave a
Lot, it shall be either on a leash within the control of its owner or in a cage. All pet litter must be
picked up immediately wherever deposited, and placed in the trash at the Owner's Lot.
4.7
Vehicles and Parking. The garage is meant to be used for parking of
Owner’s vehicles. Parking of the Owner’s vehicles in driveways and streets are discouraged.
Parking in the driveway may only occur if at least two vehicles are parked in the garage. Except
as otherwise restricted herein, non-commercial passenger automobiles, pick-up trucks, and SUVs
with factory settings of less than ¾ ton payload capacity may be parked on the streets for not
14
more than four (4) consecutive hours within a seven (7) day period, without prior Board
approval. Commercial vehicle parking is prohibited except as stated below. For purposes of this
Section, a commercial vehicle is a vehicle that meets one or more of the following criteria: (i)
displays signage or lettering to advertise or convey information about a product or service
(including, but not limited to, a commercial logo, name, phone number, or message of any kind)
that is cumulatively over one hundred and forty-four (144) square inches in size, (ii) commercial
utility racks or ladder racks located on the vehicle or work equipment or tool boxes stored on the
vehicle that are visible from outside of the vehicle. Other vehicles and equipment (including, but
not limited to, vehicles with factory settings of ¾ ton or more payload capacity, commercial
vehicles, trailers, campers, mobile homes, recreational vehicles, and boats) may only be kept on
the Property subject to the Rules adopted by the Board, and the Board may completely prohibit
the parking of such vehicles except for temporary parking of service or delivery vehicles during
normal business hours. No motor home, recreational vehicle, travel trailer, tent trailer, camper
shell, detached camper, boat, boat trailer or other similar equipment or vehicle may be parked or
maintained on any Lot or on any street within the Property so as to be Visible From Neighboring
Property, the Common Areas, or the streets.
4.8
Inoperable, Noisy, and Unsightly Vehicles. No vehicle or equipment of any
type which is abandoned or inoperable shall be parked, stored or kept on the Property or any
street within or adjacent to the Property. For purposes of this Section a vehicle is abandoned or
inoperable if it is not running, has a flat tire for ten (10) or more days, is up on blocks, or is not
properly licensed or registered. No major vehicle repairs, maintenance, or restoration shall be
done on the Property. Major repairs, maintenance, and restoration are defined as any procedure
that requires more than one-half (1/2) day to complete. No vehicle or equipment which is
unsightly by reason of large dents or excessive rust, or which is excessively noisy may be
parked, stored, kept, or operated on the Property or any street within or adjacent to the Property.
If the Board determines that any vehicle is creating loud or annoying noises by virtue of its
operation or that the parking of any vehicle or equipment is unsightly or detracts from the overall
character of the Community, such determination shall be conclusive and final that the operation,
parking or storage of such vehicle or equipment is a nuisance, and the operation, parking or
storage of such vehicle or equipment will be prohibited on the Property or any street within or
adjacent to the Property upon notice by the Board to the owner or operator thereof.
4.9
Temporary Structures. No structure of a temporary character shall be permitted
on the Property, and no tent, shack, barn, trailer, dumpster, or refuse container shall be permitted
on the Property either temporarily or permanently, unless such is located thereon by or with the
prior written consent of the Board.
4.10 Signs. Except for signs which under applicable law the Association may not
prohibit, no signs (including, but not limited to, “For Sale” or “For Rent” signs) shall be
permitted on the exterior of a Building or in the interior of a Lot if the signs would be visible
from the exterior of the Building, or on any other portion of the Community without the prior
written approval of the Board of Directors.
4.11 Lawful Use. No immoral, improper, offensive, or unlawful use shall be made of
any part of the Community. All laws, zoning ordinances, and regulations of all governmental
15
bodies having jurisdiction over the Community shall be observed. Any violation of such laws,
zoning ordinances or regulations shall be a violation of this Declaration.
4.12 Time Sharing. No Lot shall be divided or conveyed on a time increment basis or
measurable chronological periods or pursuant to any agreement, plan, program or arrangement
under which the right to use, occupy or possess a Lot, or any portion thereof, rotates among
various Persons on a periodically recurring basis for value exchanged, whether monetary or like-
kind use privileges, according to a fixed or floating interval or period of time one hundred eighty
(180) consecutive calendar days or less.
4.13 Hazardous Materials. No Owner, Lessee or Occupant shall use or keep in a Lot
or any Limited Common Element allocated to the Lot any kerosene, gasoline, or inflammable or
combustible fluid or material or other hazardous materials, other than those required, in limited
quantities, for normal cleaning of the Lot and the Limited Common Element.
4.14
Construction and Sales, Period Exemption. During the course of the
construction and sale of any permitted Improvements within the Neighborhood, the provisions,
covenants, conditions and restrictions contained in this Declaration shall be deemed waived to
the extent necessary or convenient to permit such construction and sale. As used herein, “sale”
shall include the sale and closing of Lots.
4.15
Garages. No Garage shall be converted to living space or altered or used for
storage of material or other purposes which would prevent the use of the Garage for the parking
of the number of vehicles for which it was designed. The interior of all Garages shall be
maintained and kept in a neat, clean and sightly condition, free of debris or unsightly objects.
Garage doors shall be kept closed except when the opening of the door is necessary to permit
ingress or egress.
4.16
Antennas. Unless governed by 47 C.F.R. § 1.400 (Over-the-Air Reception
Devices Rule), as amended, repealed, or recodified, no antenna or other device for the
transmission or reception of television or radio signals or any other form of electromagnetic
radiation shall be erected, used or maintained outdoors within the Property, whether attached to
the Unit or structure or otherwise, unless approved by the Board. Any device covered by 47
C.F.R. § 1.400 (Over-the-Air Reception Devices Rule), as amended, repealed, or recodified,
shall comply with any applicable antenna installation rules of the Association and shall be
mounted, to the extent reasonably possible, so as to not be visible from neighboring Lots or
Common Area.
4.17 Declarant Approval Required. After the expiration of the Period of Declarant
Control and for so long as the Declarant owns any Lot, any action for which the consent or
approval of the Board of Directors is required under this Declaration may be taken only if such
action is also consented to or approved by the Declarant.
4.18 Mineral Exploration. No Lot or Parcel shall be used in any manner to explore
for or to remove any water, oil or other hydrocarbons, minerals of any kind, gravel, earth or any
earth substance of any kind, except for grading and excavation work and the removal of fill
material including, but without limitation, gravel, rock and sand, in connection with the
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construction of Dwellings or other Improvements which have been approved in writing by the
Design Review Committee or which are being constructed by, or on behalf of, the Declarant.
4.19
Drainage. No Dwelling, structure, building, landscaping, fence, wall or other
Improvement shall be constructed, installed, placed or maintained in any manner that would
obstruct, interfere with or change the direction or flow of water in accordance with the drainage
plans for the Property or any part thereof, or for any Lot as shown on the drainage plans on file
with the County or City.
ARTICLE 5
MAINTENANCE AND REPAIR OF
COMMON AREAS AND LOTS
5.1
Association Maintenance. The Association shall maintain, repair, and replace
all of the Common Areas and all Improvements located thereon.
5.2
Maintenance by Owners. Each Owner shall be responsible for the maintenance
of their Lot and all improvements located thereon.
5.3
Improper Maintenance of Lots. In the event any portion of any Lot is so
maintained as to present a public or private nuisance, or is being used in a manner which violates
this Declaration, the Association Rules or the Design Guidelines or in the event the Owner or
Resident of any Lot is failing to perform any of its obligations under this Declaration with
respect to the maintenance, repair or replacement of the Improvements located on such Lot, the
Board may, after notice and hearing, make a finding to such effect, specifying the particular
condition or conditions which exist, and pursuant thereto give written notice thereof to the
Owner and Resident by mail to the mailing address of the Lot and make demand that corrective
action be taken within thirty (30) calendar days of the date of the notice. If at the expiration of
the said 30-day period the requisite corrective action has not been taken the Board shall be
authorized and empowered to cause such action to be taken, including but not limited to the
hiring of an attorney to take action on behalf of the Board, whether by informal pre-suit action or
by formal legal proceedings. The costs of any action taken by the Board as set forth herein,
including but not limited to incidental and taxable costs, attorney’s fees, and any fines assessed
against said Owner or Resident shall be added to and become a part of the Assessment to which
the offending Owner and the Owner's Lot is subject and shall be secured by the Assessment lien.
5.4
Maintenance of Party Walls, Flood Walls and Wash Areas. Any wall or
structure placed on the dividing line between Lots or immediately adjacent to the dividing line
between Lots and benefitting the Owners of the adjacent Lots shall constitute a Party Wall. The
rights and duties of Owners and the Association with respect to Party Walls, flood walls which
line the wash and retention areas located on the Property (“Flood Walls”), and wash areas shall
be as follows:
5.4.1 The Owners of contiguous Lots who have a Party Wall shall both equally
have the right to use such wall, provided that such use by one Owner does not interfere with the
use and enjoyment of same by the other Owner.
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5.4.2 In the event that any Party Wall is damaged or destroyed through the act
of an Owner or any of his agents or guests or members of his family (whether or not such act is
negligent or otherwise culpable), it shall be the obligation of such Owner to rebuild and repair
the Party Wall without cost to the other adjoining Lot Owner or Owners.
5.4.3 In the event any such Flood Wall and/or a wash area located on the
Property is destroyed or damaged (including deterioration from ordinary wear and tear and lapse
of time), it shall be the obligation of the Association to repair such Flood Wall and/or Wash
Area at the Association’s expense; provided, however, if such destruction or damage is caused
by the act of an Owner, their agents, guests, invitees or family, such repairs shall be the Owner’s
obligation.
5.4.4 Each Owner shall permit the Association, when reasonably required, to
enter their Lot for the purpose of repairing or maintaining a Flood Wall and/or Wash Area or for
the purpose of performing installations, alterations or repairs to the property of such Owners,
providing that request for entry are made in advance and that such entry is at a time reasonably
convenient to the Owner. In case of an emergency, such right of entry shall be immediate. The
Association making entry pursuant to the terms of this Section shall not be deemed guilty of
trespass by reason of such entry.
5.5
Repairs Necessitated by Owners. In the event any Common Area or portion of
a Lot maintained by the Association is damaged or destroyed by an Owner or any of his guests,
tenants, licensees, or agents, such Owner does hereby authorize the Association to repair said
damaged area, and the Association shall so repair said damaged area in a good workmanlike
manner in conformance with the original plans and specifications of the area involved, or as the
area may have been modified or altered subsequently by the Association, in the discretion of the
Association. The amount necessary for such repairs shall be paid by said Owner, upon demand,
to the Association and such amount shall constitute a lien on the Lot and may be collected in the
same manner as Assessments.
5.6
Easement for Maintenance. The Association is hereby granted and does hereby
reserve an easement for the purpose of ingress and egress to the various Lots and for the purpose
of accomplishing any and all reasonable maintenance as described in this Article 5. The Owner
of a Lot covenants and agrees to honor this easement owned and held by the Association for all
of the purposes, and for all of the areas described herein, and the failure to honor and abide by all
such easements shall give rises to all remedies in law or equity against the violating Owner.
ARTICLE 6
THE ASSOCIATION
6.1
Rights, Powers and Duties of the Association. No later than the date on which
the first Lot is conveyed to a Purchaser, the Association shall be organized as a nonprofit
Arizona corporation. The Association shall be the entity through which the Lot Owners shall act.
The Association shall have such rights, powers and duties as are prescribed by law and as are set
forth in the Planned Community Documents together with such rights, powers and duties as may
be reasonably necessary in order to effectuate the objectives and purposes of the Association as
set forth in this Declaration and the Planned Community Act. The Association shall have the
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right to finance capital improvements in the Community by encumbering future Assessments if
such action is approved by the affirmative vote of Lot Owners holding more than two-thirds
(2/3) of the votes in the Association. Unless the Community Documents or The Planned
Community Act specifically require a vote of the Members, the Board of Directors may act in all
instances on behalf of the Association.
6.2
Directors and Officers. During the Period of Declarant Control, the Declarant
shall have the right to appoint and remove the members of the Board of Directors and the
officers of the Association, and such directors and officers do not have to be Lot Owners. The
initial directors and officers of the Association shall be designated in the Articles, and such
designation shall constitute the appointment of such directors and officers by the Declarant.
When the Period of Declarant Control expires, the Lot Owners shall elect the Board of Directors
which shall consist of at least three members, all of whom must be Lot Owners. The Board of
Directors elected by the Lot Owners shall then elect the officers of the Association. For the
limited purpose of determining whether a natural person is a Lot Owner and therefore eligible to
serve on the Board of Directors, the spouse of a natural person who is a Lot Owner and any
member, manager, shareholder, partner, director, officer or other authorized representative of a
corporation, general partnership, limited partnership, limited liability company, limited liability
partnership or other legal entity that is a Lot Owner shall be considered a Lot Owner. The
Declarant may voluntarily surrender the right to appoint and remove the members of the Board
of Directors and the officers of the Association before the expiration of the Period of Declarant
Control, and in that event the Declarant may require, for the duration of the Period of Declarant
Control, that specified actions of the Association or the Board of Directors, as described in a
Recorded instrument executed by the Declarant, be approved by the Declarant before they
become effective.
6.3
Rules. The Board of Directors, from time to time and subject to the provisions of
this Declaration and the Planned Community Act, may adopt, amend, and repeal rules and
regulations. The Rules may, among other things, restrict and govern the use of the Lots and the
Common Areas, as well as conduct in the Common Areas.
6.4
Identity of Members. Each Lot Owner shall be a Member of the Association.
The membership of the Association at all times shall consist exclusively of the Lot Owners.
Membership in the Association shall be mandatory. An Owner shall automatically, upon
becoming an Owner, be a Member of the Association and shall remain a Member of the
Association until such time as his ownership ceases for any reason, at which time his
membership in the Association shall automatically cease. Membership in the Association shall
be appurtenant to each Lot and may not be separately assigned, transferred or conveyed.
6.5
Personal Liability. No director or officer of the Association, no member of any
committee of the Association, no managing agent of the Association or such managing agent's
employees and no other person acting on behalf of the Board of Directors shall be personally
liable to any Member or to any other Person other than the Association for any damage, loss or
prejudice suffered or claimed on account of any act, omission, error or negligence in the
discharge of such person's duties and responsibilities under the Community Documents provided
such person acted in good faith and without intentional misconduct.
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ARTICLE 7
ASSESSMENTS
7.1
Creation of Lien and Personal Obligation for Assessments. Each Owner of
any Lot, by acceptance of a deed or recorded contract of sale therefore, whether or not it shall be
so expressed in such document, is deemed to covenant and agree to pay to the Association (a)
Regular Assessments, (b) Special Assessments, (c) Enforcement Assessments, and (d) other
charges made or levied by the Association against the Owner or Lot pursuant to this Declaration,
such Assessments and charges to be established and collected as provided herein. The
Assessments, together with interest, costs and reasonable attorney’s fees, shall be a charge on the
land and shall be a continuing lien upon the Lot against which each such Assessment is made.
Each such Assessment, together with interest, costs, and reasonable attorneys’ fees, shall also be
the personal obligation of the Owner of such Lot at the time when the Assessment became due.
The personal obligation for delinquent Assessments shall not pass to the Owner’s successors in
title unless expressly assumed by them.
7.2
Purpose of Assessments. The Assessments by the Association shall be used to
promote the recreation, health, safety, and welfare of all the residents in the Property, for the
improvement and maintenance of the Common Area as provided herein, maintenance and repairs
of the Dwellings as provided herein, payment of taxes on the Common Area, and for the
common good of the Property. Regular Assessments shall include an adequate reserve fund for
maintenance, repairs and replacement of the Common Area and other improvements which the
Association is responsible for maintaining.
7.3
Regular Assessments. The Board shall annually determine and fix the amount of
the Regular Assessment against each Lot in accordance with the budget. The Board of Directors
shall prepare an annual budget reflecting the estimated costs for the operating expenses
necessary and desirable to administer and manage the Association, costs prudent and necessary
to maintain, operate, and repair the Common Area, and the sum needed to provide adequate
reserves for the items of major repair, replacements and additions to the Common Area. Not less
than thirty (30) days before the beginning of the calendar year the Board shall distribute the
budget and notify the Owner of each Lot in writing as to the amount of the Regular Assessment;
however, failure to send the budget and written notice shall not eliminate an Owner’s obligation
to pay Assessments. In the event Board fails to adopt the budget, fix the amount of the Regular
Assessment for a new fiscal year, or notify the Owners of such amount, the Owners shall pay to
the Association the amount of the previous year’s Regular Assessment until receipt of written
notice of the Regular Assessment.
7.4
Adjustment of Budget and Assessments. If the Board of Directors determines
that the Regular Assessment is inadequate to defray all Association expenses and/or insufficient
to carry out all the purposes of the Governing Documents, the Board of Directors may prepare
and distribute a supplemental budget and increase the amount of the Regular Assessment for the
remaining months of the calendar year to sufficiently meet the Association’s needs.
7.5
Commencement of Assessments. Notwithstanding anything herein to the
contrary, assessments shall commence upon conveyance of a Lot by Declarant to an Owner.
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7.6
Uniform Rate of Assessment; Payment of Assessments. Except as is otherwise
provided herein, (such as in the case of Enforcement Assessments) Assessments shall be fixed at
a uniform rate for all Lots. Assessments shall be payable in such manner, at such times, and in
such installments as may be determined by the Board.
7.7
Special Assessments. In addition to the Regular Assessment, the Board of
Directors may levy a Special Assessment for the purpose of defraying, in whole or in part, the
cost of any construction, reconstruction, repair or replacement of a capital improvement of the
Common Areas, including fixtures and personal property related thereto, or for any other lawful
Association purpose, provided that, after the Period of Declarant Control, any Special
Assessment shall also be approved by Owners representing two-thirds (2/3) of the votes in the
Association who are voting in person or by proxy at a meeting duly called for such purpose.
Unless otherwise specified by the Board of Directors, Special Assessments shall be due thirty
(30) days after they are levied by the Association and notice of the Special Assessment is given
to the Owners.
7.8
Enforcement Assessment. The Association may assess against a Lot Owner as
an Enforcement Assessment any of the following expenses: (1) any Collection Costs incurred by
the Association in attempting to collect Assessments or other amounts payable to the Association
by the Owner; (2) any attorney fees (whether or not a lawsuit is filed) incurred by the
Association with respect to any violation of the Community Documents by the Owner or the
Owner's Lessees, Occupants or Invitees; (3) any monetary penalties levied against the Owner; or
(4) any amounts (other than Assessments) which become due and payable to the Association by
the Owner or the Owner's Lessees, Occupants or Invitees pursuant to the Community
Documents.
7.9
Effect of Nonpayment of Assessments; Remedies of the Association.
(a)
Any Assessment, or any installment of an Assessment, which is not paid
within fifteen (15) days after the Assessment first became due shall be deemed delinquent and
shall bear interest from the date of delinquency at the rate of interest established from time to
time by the Board of Directors. If any Assessment, or any installment thereof, is not paid within
fifteen (15) days after the Assessment first became due, the Association may assess against the
delinquent Lot Owner a late fee in the amount established from time to time by the Board of
Directors.
(b)
The Association shall have a lien on each Lot for any Assessment levied
against that Lot from the time the Assessment becomes due and for charges for late payment of
those Assessments, for reasonable collection fees and for reasonable attorney fees and costs
incurred with respect to those Assessments. The Association's lien for Assessments, for charges
for late payment of those Assessments, for reasonable collection fees and for reasonable attorney
fees and costs incurred with respect to those Assessments may be foreclosed in the same manner
as a mortgage on real estate. Fees, charges, late charges, monetary penalties and interest charged
pursuant to Section 33-1242, Paragraphs 10, 11 and 12 of the Arizona Revised Statutes, other
than charges for late payment of Assessments, are not enforceable as Assessments under this
Section 7.7. If an Assessment is payable in installments, the full amount of the Assessment is a
lien from the time the first installment of the Assessment becomes due. The Association has a
lien for fees, charges, late charges (other than charges for late payment of Assessments),
monetary penalties or interest charged pursuant to Section 33-1242, Paragraphs 10, 11 and 12 of
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the Arizona Revised Statutes after the entry of a judgment in a civil suit for those fees, charges,
late charges, monetary penalties or interest from a court of competent jurisdiction and the
recording of that judgment in the records of the County Recorder of Maricopa County, Arizona,
as otherwise provided by law. The Association's lien for monies other than for Assessments, for
charges for late payment of those Assessments, or reasonable collection fees and for reasonable
attorney fees and costs incurred with respect to those Assessments may not be foreclosed and is
effective only on conveyance of any interest in the Lot. The recording of this Declaration
constitutes record notice and perfection of the Association's lien for Assessments, for charges for
late payment of those Assessments, for reasonable collection fees and for reasonable attorney
fees and costs incurred with respect to those Assessments, and no further recordation of any
claim of lien shall be required. Although not required in order to perfect the Association's lien,
the Association shall have the right but not the obligation, to record a notice setting forth the
amount of any delinquent Assessments, for charges for late payment of those Assessments, for
reasonable collection fees and for reasonable attorney fees and costs incurred with respect to
those Assessments which are secured by the Association's lien.
(c)
The Association's Lien for Assessments, for charges for late payment of
those Assessments, for reasonable collection fees and for reasonable attorney fees and costs
incurred with respect to those Assessments shall have priority over all liens, other interests and
encumbrances except for: (1) liens and encumbrances Recorded before the recording of this
Declaration; (2) liens for real estate taxes and other governmental assessments and charges; and
(3) the lien of any First Mortgage or seller's interest in a first contract for sale recorded prior to
the Assessment Lien. Any First Mortgagee or any other Person acquiring title or coming into
possession of a Lot through foreclosure of the First Mortgage, purchase at a foreclosure sale or
trustee's sale, or through any equivalent proceedings, such as, but not limited to, the taking of a
deed in lieu of foreclosure shall acquire title free and clear of any claims for unpaid Assessments
and charges against the Lot which became payable prior to the acquisition of such Lot by the
First Mortgagee or other Person. Any assessments and charges against the Lot which accrue
prior to such sale or transfer shall remain the obligation of the defaulting Lot Owner.
(d)
The Association shall have the right, at its option, to enforce collection of
any delinquent Assessments, monetary penalties and all other fees and charges owed to the
Association in any manner allowed by law including, but not limited to: (1) bringing an action at
law against the Lot Owner personally obligated to pay the delinquent amounts and such action
may be brought without waiving the Assessment Lien securing any such delinquent amounts; or
(2) bringing an action to foreclose the Association's lien for Assessments, for charges for late
payment of those Assessments, for reasonable collection fees and for reasonable attorney fees
and costs incurred with respect to those Assessments in the manner provided by law for the
foreclosure of a realty mortgage. The Association shall have the power to bid in at any
foreclosure sale and to purchase, acquire, hold, lease, mortgage and convey any and all Lots
purchased at such sale.
7.10 Certificate of Payment. The Association or the Association's managing agent,
upon receipt of a written request, shall furnish to a lienholder, Lot Owner or Person designated
by a Lot Owner a recordable statement setting forth the amount of unpaid Assessments against
his Lot. The statement shall be furnished within fifteen (15) days after receipt of the request and
is binding on the Association, the Board of Directors, and every Lot Owner. The Association or
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the Association's managing agent may charge a reasonable fee in an amount established by the
Board of Directors for each such statement.
7.11
No Exemption or Offsets. No Owner may exempt himself from liability for
payment of Assessments, monetary penalties and other fees and charges levied pursuant to the
Community Documents by waiver and nonuse of any of the Common Areas and facilities or by
the abandonment of his Lot. All Assessments, monetary penalties and other fees and charges
shall be payable in accordance with the provisions of this Declaration, and no offsets against
such Assessments, monetary penalties and other fees and charges shall be permitted for any
reason, including, without limitation, a claim that the Association is not properly exercising its
duties and powers as provided in the Community Documents or the Community Act.
7. 12 Working Capital Fund. To provide the Association with operating funds, each
Original Buyer (hereinafter defined) and each Subsequent Purchaser (hereinafter defined), except
for transferees under Section 7.13(b)(1), (2) or (3), shall pay to the Association, immediately
upon becoming the Owner of the Lot, a sum equal to two monthly installments of the Regular
Assessment for the Lot. Such amount shall be non-refundable and shall not be considered as an
advance payment of any Assessments levied by the Association pursuant to this Declaration. The
amounts paid to the Association pursuant to this Section may be used for any purpose for which
Association funds may be used pursuant to Article 7.
7.13 Reserve Contribution.
(a)
Except as provided in Section 7.13.(b), each Original Buyer and each
Subsequent Purchaser, except for transferees under Section 7.13(b)(1), (2) or (3), shall pay to the
Association, immediately upon becoming the Owner of the Lot, a contribution (the “Reserve
Contribution”) to the reserves to be established pursuant to Section 7.15. The amount of the
initial Reserve Contribution shall be $300.00. The Board of Directors may from time to time
thereafter increase or decrease the amount of the Reserve Contribution.
(b)
No Reserve Contribution shall be payable with respect to: (1) the transfer
or conveyance of a Lot by devise or intestate succession; (2) a transfer or conveyance of a Lot to
a family trust, family limited partnership or other Person for bona fide estate planning purposes;
(3) a transfer or conveyance of a Lot to a corporation, partnership or other entity in which the
grantor owns a majority interest unless the Board determines, in its sole discretion, that a
material purpose of the transfer or conveyance was to avoid payment of the Reserve Contribution
in which event a Reserve Contribution shall be payable with respect to such transfer or
conveyance;
(c)
All Reserve Contributions shall be deposited in the Reserve Account
established pursuant to Section 7.15. Reserve Contributions shall be non-refundable and shall not
be considered as an advance payment of Assessments.
7.14
Transfer Fee. Each Purchaser shall pay to the Association, or, at the option of
the Association, to the Association's managing agent, immediately upon becoming the Owner of
the Lot a transfer fee in the amount set from time to time by the Board of Directors to
compensate the Association for the administrative cost resulting from the transfer of a Lot. The
transfer fee is intended to compensate the Association for the costs incurred in the preparation of
the statement which the Association is required to mail or deliver to a purchaser under A.R.S. §
33-1260.
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7.15 Reserves.
(a)
The Board of Directors shall establish reserves for the future periodic
maintenance, repair or replacement of the major components of the Common Areas which the
Association is obligated to maintain, repair and replace. The reserves may be funded from
Regular Assessments, the Reserve Contributions paid pursuant to Section 7.13, the Working
Capital Fund payments paid pursuant to Section 7.12 or any other revenue of the Association.
All amounts designated as reserves shall be deposited by the Board of Directors in a separate
bank account (the “Reserve Account”) to be held for the purposes for which they are collected
and are to be segregated from and not commingled with any other funds of the Association. The
Board of Directors periodically shall obtain a reserve study, which study shall at a minimum
include (1) identification of the major components of the Common Areas which the Association
is obligated to repair, replace, restore or maintain which, as of the date of the study, have a
remaining useful life of less than thirty (30) years; (2) identification of the probable remaining
useful life of the identified major components as of the date of the study; (3) an estimate of the
cost of repair, replacement, restoration, or maintenance of the identified major components
during and at the end of their useful life; (4) an estimate of the total annual contribution
necessary to defray the cost to repair, replace, restore, or maintain the identified major
components during and at the end of their useful life, after subtracting total reserve funds as of
the date of the study.
(b)
Unless the Association is exempt from Federal or State taxes, all reserves
shall be accounted for as contributions to the capital of the Association and as trust funds
segregated from the regular income of the Association or in any other manner authorized by law
or regulation of the Internal Revenue Service that will prevent such funds from being taxed as
income of the Association.
ARTICLE 8
INSURANCE
8.1
Insurance Requirements Generally. The Association shall obtain and maintain
in full force and effect property and casualty, liability and other insurance as hereinafter
provided. All such insurance shall be obtained from responsible companies duly authorized to
transact insurance business in the State of Arizona. All such insurance shall name the
Association, or its authorized representative or trustee, as the insured, in its individual capacity
for the benefit of the Association. To the extent reasonably available, the insurance obtained by
the Association pursuant to this Article 8 shall provide the following: (i) exclusive authority to
adjust losses under policies in force on property owned by the Association shall be vested in the
Board of Directors; (ii) in no event shall the insurance coverage obtained and maintained by the
Board of Directors hereunder be brought into contribution with insurance purchased by
individual owners, occupants or their Mortgagees, and the insurance carried by the Association
shall be primary; (iii) The Board of Directors shall secure insurance policies that will provide for
a waiver of subrogation by the insurer as to any claims against the Board of Directors or the
Owners and their respective tenants, agents and guests. The Board shall review all such
insurance at least annually and shall increase or decrease the amounts thereof as it deems
necessary or appropriate.
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8.2
Property Insurance. The Association shall obtain and maintain in effect a
“multi-peril” type of policy or policies of property insurance covering the Common Areas, and
all fixtures, improvements, and building service equipment to the extent such is a part of the
Common Areas against loss or damage by fire or other hazards in an amount sufficient to cover,
after application of a deductible, the full replacement cost of any repair or reconstruction work in
the event of damage or destruction from any hazard. Such insurance coverage shall be written in
the name of the Association.
8.3
Liability Insurance. The Association shall obtain and maintain commercial
general liability insurance covering liability for bodily injury, including death, and liability for
property damage occurring in, upon or about the Common Areas. Each Owner and the
Association shall be insured with respect to such liability arising out of the ownership,
maintenance, repair or operation of the Common Areas. The limits of liability for such coverage
shall not be less than two million dollars ($2,000,000.00) in the aggregate and one million dollars
($1,000,000.00) per occurrence with respect to bodily injury, death or property damage. The
Association shall maintain insurance covering operation of any motor vehicle or equipment
owned or operated by the Association in an amount of not less than one million dollars
($1,000,000.00) per occurrence. The Board may increase the amount of insurance if it
determines that such is in the best interest of the Association.
8.4
Directors and Officers Insurance. The Association shall obtain and maintain (if
reasonably obtainable) insurance for the protection of its officers, directors, and committee
members from personal liability in the management of the Association's affairs.
8.5
Other Insurance by the Association. The Association shall also have the power
and authority to obtain and maintain other and additional insurance coverage, as the Board
deems advisable.
8.6
Payment of Insurance Premiums and Deductibles. The premiums for
insurance maintained by the Association shall be shared equally by all Owners of Lots as a part
of the Regular Assessments. The Association may adopt reasonable rules and regulations
regarding the payment of the insurance deductible. To the extent an Owner is, in whole or in
part, responsible for the payment of the insurance deductible, such cost shall be a lien on the Lot
and collectible in the same manner as Assessments.
8.7
Insurance Obtained by Lot Owners. Each Lot Owner shall obtain and maintain
(1) property insurance covering the Owner's Lot and all additions, alterations, and improvements
whether installed by such Lot Owner or any prior Lot Owner or whether originally in such
Owner's Lot; (2) liability insurance covering, to the extent not covered by the policies of liability
insurance obtained by the Board of Directors for the benefit of all Lot Owners, such Lot Owner's
liability for bodily injury, including death, and property damage arising out of the ownership,
maintenance or use of the Owner's Lot. If requested to do so by the Board of Directors each Lot
Owner shall provide the Board of Directors with a certificate of insurance evidencing such
insurance coverage at least ten (10) days prior to the conveyance of the Lot to the Lot Owner,
and thereafter at least thirty (30) days prior to the expiration of any policy.
8.8
Certificate of Insurance. An insurer that has issued an insurance policy on
behalf of the Association pursuant to this Article 8 shall issue certificates or memoranda of
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insurance to the Association and, on written request, to any Lot Owner, mortgagee, or
beneficiary under a deed of trust. The insurer issuing the policy shall not cancel or refuse to
renew it until thirty (30) days after notice of the proposed cancellation or nonrenewal has been
mailed to the Association, and each mortgagee or beneficiary under a deed of trust to whom a
certificate or memorandum of insurance has been issued at their respective last known addresses.
8.9
Damage and Destruction
8.9.1 Immediately after damage or destruction to all or any part of the Property
covered by insurance written in the name of the Association, the Board or its duly authorized
agent shall file and adjust all insurance claims and obtain reliable and detailed estimates of the
cost of repair or reconstruction. Repair or reconstruction, as used in this Section, means repairing
or restoring the property to substantially the condition in which it existed prior to the damage,
allowing for changes or improvements necessitated by changes in applicable building codes and
zoning regulations.
8.9.2 Any damage to or destruction of the Common Area shall be repaired or
reconstructed unless at least 75% of the total Class “A” votes and the Class “B” votes and the
Declarant, as long as the Declarant owns any Property, decide within 60 days after the loss not to
repair or reconstruct.
8.9.3 If either the insurance proceeds or reliable and detailed estimates of the cost
of repair or reconstruction, or both, are not available to the Association as the case may be,
within such 60-day period, then the period shall be extended for not more than 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.
8.9.4 If determined in the manner described above that the damage or destruction
to the Common Area shall not be repaired or reconstructed and no alternative Improvements are
authorized, that affected property shall be cleared of all debris and ruins and maintained by the
Association in a neat and attractive, landscaped condition.
8.10
Special Assessments for Restoration. Whenever repair or restoration is to be
undertaken, the Association may levy and collect a Special Assessment from the Members in
accordance with Section 7.7 to cover the costs and expense of restoration to the extent not
covered by the insurance proceeds, payable over such period as the Association may determine.
If repair or restoration of the Common Areas is to be undertaken, all Lot Owners should be
assessed.
8.11
Disbursement of Proceeds. 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 and for the benefit of the Association if any, as applicable, and placed in a capital
improvements account. This is a covenant for the benefit of Mortgagees and may be enforced by
the Mortgagee of any affected Lot.
8.12
Each Lot Owner (other than Developer) agrees that in the event of the partial loss,
damage or destruction of any Improvement on a Lot Owner ‘s Lot involving less than total
26
destruction of such Improvement, the Lot Owner shall proceed promptly to repair or to
reconstruct the damaged Improvement in a manner consistent with the original construction. In
the event that an Improvement is totally destroyed and the Owner determines not to rebuild or to
reconstruct the Improvement, the Lot Owner shall clear the affected Lot of all debris and return
the land to substantially the same condition existing prior to the beginning of construction of the
Improvement thereon, provided that, at a minimum, the Lot shall be grassed and maintained in a
neat and tidy manner, free of debris. The Board may impose more stringent requirements
regarding the standards for rebuilding or reconstructing Improvements on each Lot and the
standard for returning the Lot to its natural state in the event the Lot Owner decides not to
rebuild or reconstruct.
ARTICLE 9
ARCHITECTURAL REVIEW
9.1
Architectural Review. No building, fence, wall, tower, awning, roof, patio,
balcony, structure, or other improvements of any kind or character shall be constructed, erected,
placed or maintained on a Lot, nor shall any exterior addition, change or alteration to a Lot that is
or would be Visible From Neighboring Property be constructed, erected, placed or maintained,
until plans and specifications showing the nature, kind, color, shape, height, materials, location,
and other physical attributes of the same shall have been submitted to and approved in writing by
the Architectural Review Committee. The Committee may consider any factors it deems
relevant, including, but not limited to, the harmony of the external design and location in relation
to surrounding structures and topography, the burden that a new or expanded structure will place
on the Common Area, and how the proposed structure will affect the tranquility of the resort.
Notwithstanding anything herein to the contrary, the Architectural Review Committee may
condition approval of an addition or alteration of a structure on the Owner assuming future
maintenance of the structure.
9.1.1 The architectural review and control performed by the Architectural
Review Committee shall extend only to the Lots.
9.1.2 The Architectural Review Committee may not grant approval for any
improvement, structure, or alteration that is otherwise in violation of this Declaration. Any
approval of improvement, structure, or alteration that is in violation of this Declaration is null
and void.
9.2
Architectural Review Committee.
9.2.1 The Architectural Review Committee (“Committee”) shall initially
consist of members appointed by the Declarant. After the Period of Declarant Control ends, the
Committee shall consist of at least three (3) Members of the Association (one member must also
be a Board member), and the number of Members on the Committee shall be determined from
time to time by the Board of Directors. No Member whose right to vote has been suspended is
eligible to serve on the Architectural Review Committee.
9.2.2 Any member of the Committee may at any time resign from the
Committee by giving written notice thereof to the Board.
27
9.2.3 Any member of the Committee may be removed from the Committee,
with or without cause, by the Board of Directors.
9.2.4 Vacancies on the Committee caused by whatever reason may be filled by
the Board of Directors.
9.3
Plans and Specifications. Plans and specifications showing the nature, kind,
shape, color, size of materials and location of such improvements, alterations and the like shall
be submitted in writing to the Committee for approval as to the quality of workmanship and
design and harmony of the external structures, topography and finished grade elevation and the
impact on the nature of the resort. No permission or approval shall be required to repaint in
accordance with the color scheme previously approved by the Committee or to rebuild in
accordance with the plans and specifications previously approved by the Committee. Whenever
any plans and specifications are submitted in writing to the Committee pursuant to the provisions
of this Section, such plans and specifications shall be deemed disapproved for purposes of this
Section if the committee fails to approve said plans and specifications within sixty (60) days
after the date of submission to them.
9.4
Architectural Guidelines. The Committee may, from time to time and in its sole
and absolute discretion, adopt, amend and repeal, by majority vote at a meeting or by unanimous
written consent, rules and regulations, to be known as “Architectural Guidelines”. The
Architectural Guidelines shall set forth the standards and procedures for the Committee to review
plans and the guidelines for architectural design, placement of buildings, landscaping, color
schemes, exterior finishes and materials and similar features which are recommended for use
within the Property.
9.5
Review Fee and Construction Deposit. The Committee shall have the right to
charge a design review fee and collect a refundable construction deposit. Such fee and deposit
shall be payable at the time the application for approval is submitted to the Committee. The
amount of the design review fee and construction deposit shall be established by the Committee
in the Architectural Guidelines, and may be increased from time to time. The Committee shall
have the authority to use the services of an architect or consultant chosen by the Committee, and
to use the design review fee to pay the reasonable fees of the architect or consultant. The
construction deposit will be retained by the Association for the purposes of assuring the prompt
completion of the work in accordance with the Architectural Guidelines and any other
Association Rules adopted by the Board, and for the purpose of repairing any Common Area
damaged by the Owner or the Owner’s agents. If such violations or damage occur, the
Association may levy reasonable monetary penalties against the construction deposit, including
forfeiture of the entire deposit, after notice and an opportunity to be heard, or use any amounts of
the deposit as the Board deems necessary to repair the damage caused. If the cost of repair
exceeds the amount of the deposit, the Owner shall be responsible for the difference. Said
amount, if unpaid, shall be collected in the same manner as Assessments. The Owner shall have
no right to demand and the Association shall have no obligation to pay the construction deposit
until after the completion of construction to the satisfaction of the Committee, after which time
any unused portion of the construction deposit will be returned to the Owner who paid the
construction deposit.
28
9.6
Appeal. Any Owner whose architectural submission has been denied may appeal
the decision to the Board in accordance with procedures to be established by the Board. In the
event the decision of the Committee is overruled by the Board on any issue or question, the prior
decision of the Committee shall be deemed modified to the extent specified by the Board and, for
purposes of this Declaration, such decision, as so modified, shall thereafter be deemed the
decision of the Committee.
9.7
Waiver. The approval of the Committee of any plans, drawings or specifications
for any work done or proposed, or for any other matter requiring the approval of the Committee
under the Declaration, shall not be deemed to constitute a waiver of any right to withhold
approval of any similar plan, drawing specification or matter subsequently submitted for
approval.
9.8
Liability. Neither the Committee nor any member thereof shall be liable to the
Association, any Owner, or to any other party, for any damage, loss or prejudice suffered or
claimed on account of (a) the approval or disapproval of any plans, drawings or specifications,
whether or not defective, (b) the construction or performance of any work, whether or not
pursuant to approved plans, drawings and specifications, or (c) the development of any Property,
provided, however, that with respect to the liability of a member, such member has acted in good
faith on the basis of such information as may be possessed by him. Without in any way limiting
the generality of any of the foregoing provisions of this Section, the Committee, or any member
thereof, may, but is not required to, consult with or hear the views of the Association or any
Owner with respect to any plans, drawings, specifications, or any other proposal submitted to the
Committee.
9.9
Variances. The Committee or the Board may grant variances to the
Architectural requirements of this Article and to the Architectural Guidelines upon a showing of
hardship or if a variance is in the best interests of the Association.
ARTICLE 10
ALTERNATIVE DISPUTE RESOLUTION PROCEDURES
10.1 General. It is Declarant’s intent that all Improvements constructed on the
Property by Declarant be of a quality that is consistent with good construction and development
practices for similar properties and be free of construction defects. Nevertheless, due to the
complex nature of construction and the subjectivity involved in evaluation such quality, issues
may arise as to whether an alleged construction defect exists and Declarant’s responsibility
therefor. It is Declarant’s intent to resolve all disputes and claims regarding “Construction
Defects” (as defined on Page 12 of the “Home Builder’s Limited Warranty” or “HBLW” and
as modified by the definition of Construction Defects in Arizona Revised Statutes Section 12-
1361.4) (PWC Form No. 117) Rev. 01/07), a copy of which is attached hereto as Exhibit B)
amicably, and without the necessity of time consuming and costly litigation pursuant to the
Alternative Dispute Resolution Procedures described below in Section 10.2.1 and, if required, by
mandatory binding arbitration as provided for in Articles 11 and 12 hereof. Accordingly, the
Association and Declarant and all Lot Owners are and shall be bound by the claim resolution
procedures set forth below and in Articles 11 and 12 hereof.
29
10.2
Compliance with Applicable Laws. In the event that the Association and/or any
Lot Owner (each or collectively “Claimant”) claim, contend, or allege that all or any portion of
a Lot, Common Area, and/or any other Improvements constructed within the Property by or on
behalf of Declarant contain Construction Defects, then the Claimant and Declarant agree as
follows:
IN THE EVENT THAT THE ASSOCIATION HAS ALLEGED CLAIMS FOR
CONSTRUCTION DEFECTS AGAINST THE DECLARANT WHICH HAVE NOT BEEN
RESOLVED BY PERSONAL NEGOTIATIONS, THEN AS A CONDITION PRECEDENT TO
THE ASSOCIATION INITIATING A MANDATORY BINDING ARBITRATION ACTION
AGAINST THE DEVELOPER AS PROVIDED FOR IN SECTION 11.1 BELOW, THE
ASSOCIATION MUST FIRST COMPLY WITH ALL THE TERMS, CONDITIONS AND
PROVISIONS OF THE ARIZONA HOME OWNERS’ DWELLING ACT, ARIZONA
STATUTES SECTIONS 33-2001, 33-2002 AND 33-2003, AND THE ASSOCIATION MUST
ALSO COMPLY WITH ALL THE TERMS, CONDITIONS AND PROVISIONS OF
ARIZONA’S CONTRACTOR REPAIR ACT, ARIZONA STATUTES SECTIONS 12-1361,
12-1362 AND 12-1363.
ALL OF THE LOT OWNERS SHALL ALSO BE BOUND BY ALL OF THE TERMS,
CONDITIONS AND PROVISIONS OF ARIZONA’S CONTRACTOR’S REPAIR ACT,
ARIZONA STATUTES SECTIONS 12-1361, 12-1362 AND 12-1363, PRIOR TO INITIATING
THE MANDATORY BINDING ARBITRATION PROVISION SET FORTH IN ARTICLE 11
BELOW AND IN EXHIBIT B HERETO, WHICH ARBITRATION PROVISIONS SAID LOT
OWNERS, IF THEY ARE AN ORIGINAL BUYER, HAVE AGREED TO ABIDE BY AND
BE SUBJECT TO PURSUANT TO THEIR PURCHASE CONTRACT (HEREINAFTER
DEFINED) AS WELL AS BY VIRTUE OF THEIR TAKING TITLE TO THEIR LOT
SUBJECT TO THE TERMS OF THIS DECLARATION. LOT OWNERS WHICH ARE
SUBSEQUENT PURCHASER HAVE AGREED TO ABIDE BY AND BE SUBJECT TO THE
FOREGOING ARBITRATION PROVISIONS BY VIRTUE OF THEIR TAKING TITLE TO
THEIR LOT SUBJECT TO THE TERMS OF THIS DECLARATION.
10.3
Lot Owners’ Approval of Construction Defect Action by Association. In
addition to first complying with the Arizona Home Owners’ Dwelling Act and the Arizona’s
Contractor Repair Act, the Association shall not commence an action involving mandatory
binding arbitration with the Developer in connection with any alleged Construction Defect
without the written approval of at least sixty-seven and two thirds percent (67-2/3%) of the Lot
Owners, excluding any Lot Owner who would be a defendant in such proceedings. The
Association shall not use reserve funds to pay legal fees, court costs or other costs or expenses
incurred in the arbitration proceeding.
ARTICLE 11
DISCLAIMER OF WARRANTIES; HOME BUILDER’S LIMITED WARRANTY;
MANDATORY BINDING ARBITRATION
11.1
Warranty. Declarant, the Association, and each Lot Owner acknowledge that
each Purchaser of a Lot from Declarant (“Original Buyer”) has entered into a Purchase
30
Contract, Deposit Receipt and Escrow Instructions (“Purchase Contract”) with Declarant
which provides for mandatory binding arbitration of claims and disputes between the Original
Buyer and Declarant, if such claims and disputes are not resolved through the repair terms,
conditions and provisions referred to in Section 10.2 above. Such mandatory binding arbitration
terms, conditions and provisions are set forth in the HBLW and, a copy of which is attached as
Exhibit B which has been furnished to the Association and has or will be furnished to each such
Original Buyer at the time of their entering into the Purchase Contract with Declarant. The
Association, Declarant and each Lot Owner covenant and agree to abide by and be subject to the
HBLW. In accordance with the HBLW and the agreement of the Association and each Lot
Owner to abide by and be subject to said warranty program, the Association and each Lot Owner
covenant and agree that any and all claims and/or disputes of any kind relating to Construction
Defects in the Property, to the extent of the Association’s and/or such Lot Owner’s interest and
standing, shall, if not resolved by personal negotiations or as provided for in Article 10.2 hereof
shall, subject to the provisions of Section 10.3 hereof, be submitted by the Association and/or
each Lot Owner, as applicable, to final and mandatory binding arbitration pursuant to and in
accordance with the provisions of the arbitration agreement contained in the HBLW, which
arbitration agreement is incorporated herein as though fully set forth.
11.2
Warranty Period. With respect to the Common Areas, the Association
acknowledges and agrees that the warranty period under the HBLW shall run for a period of
eight (8) years from the date of the Close of Escrow between the first Lot Owner and the
Declarant. Notwithstanding the provisions of Article I of the HBLW to the contrary, the HBLW
eight (8)-year warranty period for all Lot Owners with respect to their Lot and the Improvements
thereon, other than any Common Areas, shall run from the date of the Close of Escrow of the
Original Buyer (hereinafter defined) of the Lot.
11.3
HBLW’s Warranty Limitations and Arbitration Under the HBLW. OTHER
THAN THE HBLW, DECLARANT, TO THE FULLEST EXTENT PERMITTED BY LAW,
MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY LOT OR
IMPROVEMENTS CONSTRUCTED THEREON, THE PROPERTY, OR CONSUMER
PRODUCTS OR OTHER THINGS THAT MAY BE INSTALLED OR THAT ARE
CONTAINED IN OR RELATE TO THE IMPROVEMENTS OR THE PROPERTY,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, HABITABILITY, WORKMANLIKE CONSTRUCTION OR
FITNESS FOR A PARTICULAR USE. THERE ARE NO OTHER EXPRESS OR IMPLIED
WARRANTIES BEING GIVEN BY DECLARANT TO THE ASSOCIATION OR LOT
OWNERS, AND, BY TAKING TITLE TO A LOT, EACH LOT OWNER, ON BEHALF OF
ITSELF AND ITS SUCCESSORS AND ASSIGNS (INCLUDING SUCCESSOR OWNERS OF
THE LOT), SPECIFICALLY WAIVES, TO THE FULL EXTENT ALLOWED BY LAW, ANY
IMPLIED WARRANTIES OF HABITABILITY, MERCHANTABILITY OR FITNESS FOR
ANY PARTICULAR PURPOSE WITH RESPECT TO THE LOT, INCLUDING ANY
IMPROVEMENTS THEREON, ALL COMMON AREAS AND IMPROVEMENTS, OR ANY
PERSONAL PROPERTY OR FIXTURES BEING PROVIDED TO THE LOT OWNER BY
DECLARANT AS PART OF THE IMPROVEMENTS. IN PARTICULAR, BY THE LOT
OWNER TAKING TITLE TO A LOT, THE ASSOCIATION AND EACH LOT OWNER
ACKNOWLEDGE AND AGREE IF ANY CLAIMS OR DISPUTES AMONG THEM
31
RELATING TO ALLEGED CONSTRUCTION DEFECTS ARE NOT RESOLVED BY THE
DISPUTE PROCEDURES REFERRED TO ABOVE THAT (A) THE HOME BUILDER’S
LIMITED WARRANTY AND THE PURCHASE CONTRACT REQUIRE THAT THESE
DISPUTES BETWEEN ASSOCIATION AND/OR THE LOT OWNER AND DECLARANT,
WHETHER SUCH DISPUTES ARE BASED ON CONTRACT, TORT, STATUTE, OR
EQUITY, AND WHETHER SUCH DISPUTES ARISE BEFORE OR AFTER THE CLOSE OF
ESCROW, BE RESOLVED SOLELY AND EXCLUSIVELY THROUGH BINDING
ARBITRATION PURSUANT TO THE FEDERAL ARBITRATION ACT (9 U.S.C. § 1, ET
SEQ.), AND ADMINISTERED BY AN ARBITRATOR SELECTED BY MUTUAL
AGREEMENT OF THE PARTIES OR AS OTHERWISE DESIGNATED BY PWC AS
PROVIDED IN THE HBLW IN ACCORDANCE WITH THE RULES AND PROCEDURES
SET FORTH IN THE HBLW AND WHERE NOT INCONSISTENT BY THE RULES AND
PROCEDURES OF THE ARBITRATOR, AND (B) IN AGREEING TO SUBMIT SUCH
DISPUTES TO BINDING ARBITRATION, ASSOCIATION, DECLARANT AND EACH
LOT OWNER ARE GIVING UP ANY RIGHTS THEY MAY POSSESS TO LITIGATE SUCH
DISPUTES IN A COURT OR BY JURY TRIAL.
ARTICLE 12
NOTICE TO SUBSEQUENT PURCHASERS
Notice is hereby given to all Persons that purchase a Lot with Improvements thereon constructed
by or on behalf of Declarant from an Owner thereof, other than from the Declarant (herein a
“Subsequent Purchaser”) that the Purchase Contract entered into between the Declarant, as
seller, and the first Lot Owner, as buyer (herein an “Original Buyer”), contains an
acknowledgement by the Original Buyer that said Original Buyer has received a copy of and is
governed by the Declarant’s 8-year express Home Builder’s Limited Warranty and which is
attached hereto as Exhibit B. Articles 10 and 11 hereof and the Home Builder’s Limited
Warranty contain, among other terms, provisions for notice, right to cure procedures and
mandatory arbitration of construction defect disputes relating to Improvements constructed on all
of the Lots located on the Property by the Declarant and its general contractor, HBT
Construction of Arizona, Inc. Subsequent Purchasers shall be deemed upon acquisition of a Lot
with Improvements thereon constructed by or on behalf of Declarant to be subject to and the
beneficiary of said HBLW and all of the provisions therein provided for, including, but not
limited to, after compliance with provisions of Article 10 above, the mandatory binding
arbitration provisions in Section VII of the HBLW.
ARTICLE 13
GENERAL PROVISIONS
13.1
Enforcement.
(a)
The Association may enforce the Community Documents in any manner provided
for in the Community Documents or by law or in equity, including, but not limited to:
(1)
imposing reasonable monetary penalties after notice and an opportunity to
be heard is given to the Lot Owner or other violator. A Lot Owner shall
be responsible for payment of any fine levied or imposed against a Lessee
32
or Occupant of the Owner's Lot or by any Invitee of the Lot Owner or any
Lessee or Occupant;
(2)
suspending a Lot Owner's right to vote;
(3)
suspending any Person's right to use any facilities within the Common
Areas; provided, however, nothing herein shall authorize the Board to
limit ingress or egress to or from a Lot;
(4)
suspending any services provided by the Association to a Lot Owner or
the Owner's Lot if the Lot Owner is more than fifteen (15) days
delinquent in paying any assessment or other charge owed to the
Association;
(5)
exercising self-help or taking action to abate any violation of the
Community Documents provided, however, that judicial proceedings must
be instituted before any items of construction can be altered or
demolished;
(6)
requiring a Lot Owner, at the Lot Owner's expense, to remove any
Improvement installed or constructed in such Owner's Lot or in any
Limited Common Element allocated to the Owner's Lot in violation of this
Declaration and to restore the Lot or the Limited Common Element to its
previous condition and, upon failure of the Lot Owner to do so, the Board
of Directors 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 and all costs incurred by the Association shall be paid to the
Association by the Lot Owner upon demand by the Association;
(7)
without liability to any person, prohibiting any contractor, subcontractor,
agent, employee or other invitee of a Lot Owner who fails to comply with
the terms and provisions of the Community Documents from continuing or
performing any further activities of the Community;
(8)
filing a suit at law or in equity to enjoin a violation of the Community
Documents, to compel compliance with the Community Documents, to
recover monetary penalties or money damages or to obtain such other
relief as to which the Association may be entitled;
(9)
recording a written notice of a violation of any restriction or provision of
the Community Documents. The notice shall be executed and
acknowledged by an officer of the Association and shall contain
substantially the following information: (i) the legal description of the Lot
against which the notice is being recorded; (ii) a brief description of the
nature of the violation; and (iii) a statement of the specific steps which
must be taken by the Lot Owner to cure the violation. Recordation of a
Notice of Violation shall serve as a notice to the Lot Owner and to any
subsequent purchaser of the Lot that there is a violation of the provisions
of the Community Documents.
(b)
The Association shall not be obligated to take any enforcement action if the Board
of Directors determines, in its sole discretion, that because of the strength of possible defenses,
the time and expense of litigation or other enforcement action, the likelihood of a result favorable
33
to the Association, or other facts deemed relevant by the Board of Directors, enforcement action
would not be appropriate or in the best interests of the Association.
(c)
A Lot Owner may enforce the Community Documents in any manner provided
for in this Declaration or at law or in equity, except that a Lot Owner may not exercise any
remedy provided to the Association by this Declaration or enforce payment of any Assessments
or other amounts payable to the Association pursuant to the Community Documents.
(d)
All rights and remedies of the Association under the Community Documents or at
law or in equity are cumulative, and the exercise of one right or remedy shall not waive the
Association's right to exercise another right or remedy. The failure of the Association or an
Owner to take enforcement action with respect to a violation of the Community Documents shall
not constitute or be deemed a waiver of the right of the Association or any Owner to enforce the
Community Documents in the future. If any enforcement is initiated by the Association to
enforce any provision of the Community Documents or otherwise arising out of the Community
Documents, the Association shall be entitled to recover all attorney fees, whether or not suit was
filed and the same shall be collectable as an assessment and a lien on the Lot.
13.2 Severability. Invalidation of anyone of these covenants or restrictions by
judgment or court order shall in no way affect any other provisions which shall remain in full
force and effect.
13.3 Amendment.
(a)
Except in cases of amendments that may be executed by a Declarant in the
exercise of its Development Rights, the Declaration, including the Plat, may be amended with
the affirmative, written consent of at least sixty-seven percent (67%) of the Lot Owners.
(b)
Except to the extent expressly permitted or required by the Community
Act, an amendment to this Declaration shall not create or increase Special Declarant Rights,
increase the number of Lots or change the boundaries of any Lot, the Allocated Interest of a Lot,
or the use as to which any Lot is restricted, in the absence of unanimous consent of the Lot
Owners. Any amendment to this Declaration adopted by the Lot Owners during the Period of
Declarant Control must be approved in writing by the Declarant. After the expiration of the
Period of Declarant Control, an amendment to this Declaration shall not amend or delete any
provisions of Articles 10, 11 and 12 or this Section 13.3(b).
(c)
An amendment to the Declaration shall not terminate or decrease any
unexpired Development Right, Special Declarant Right or Period of Declarant Control unless the
Declarant approves the amendment in writing. No amendment to Articles 10, 11 and 12,
Section 13.3(b) or this Section 13.3(c) shall be effective unless the Declarant approves the
amendment in writing even if the Period of Declarant Control has expired.
(d)
During the Period of Declarant Control, the Declarant shall have the right
to amend the Declaration, including the Plat, to: (1) comply with the Planned Community Act or
any other applicable law if the amendment does not adversely affect the rights of any Lot Owner;
(2) correct any error or inconsistency in the Declaration if the amendment does not adversely
34
affect the rights of any Lot Owner; or (3) comply with the rules or guidelines in effect from time
to time of any governmental or quasi-governmental entity or federal corporation guaranteeing or
insuring mortgage loans or governing transactions involving mortgage instruments, including
without limitation, the Department of Veterans Affairs, the Federal Housing Administration, the
Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation.
(e)
Any amendment adopted by the Lot Owners pursuant to Section 13.3(a)
shall be signed by the President or Vice President of the Association and shall be Recorded
within thirty (30) days after the adoption of the amendment. Any amendment made by the
Declarant pursuant to Section 13.3(d) or the Planned Community Act shall be executed by the
Declarant and shall be Recorded.
13.4 Notices. All notices, demands, statements or other communications required to be
given to or served on the Association, a Lot Owner or the Declarant under this Declaration shall
be in writing and shall be deemed to have been duly given and served if delivered in any manner
approved in writing by the Association, Lot Owner and the Declarant, or if no specific delivery
method has been approved, delivered personally or sent by United States mail, postage prepaid,
addressed or emailed to the Association, Lot Owner or the Declarant, at the mailing or email
address which the Association, Lot Owner or the Declarant shall designate in writing and file
with the Association or, if no such address is designated by a Lot Owner, at the mailing or email
address of the Lot of such Owner. The Association, a Lot Owner or the Declarant may change
their mailing or email address on file with the Association for receipt of notices by delivering a
written notice of change of address to the Association. A notice given by mail, whether regular,
certified, or registered, shall be deemed to have been received by the entity or person to whom
the notice was addressed on the earlier of the date the notice is actually received or three days
after the notice is mailed. A notice given by email shall be deemed to have been received by the
entity or person to whom the notice was emailed on the first business day after the email was
sent. If a Lot is owned by more than one person, notice to one of the Owners shall constitute
notice to all Owners of the same Lot. Each Lot Owner shall file his correct mailing address with
the Association, and shall promptly notify the Association in writing of any subsequent change
of address. The initial mailing address of the Association and Declarant for purposes of giving
notice to them is 706 East Bell Road, Suite 212, Phoenix, Arizona 85054. Their initial email
address is KKiesl@HBTAZ.com.
13.5 Gender. The singular, wherever used in this Declaration, shall be construed to
mean the plural when applicable, and the necessary grammatical changes required to make the
provisions of this Declaration apply either to corporations or individuals, or men or women, shall
in all cases be assumed as though in each case fully expressed.
13.6 Topic Headings. The marginal or topical headings of the sections contained in
this Declaration are for convenience only and do not define, limit or construe the contents of the
sections or of this Declaration. Unless otherwise specified, all references in this Declaration to
Articles or Sections refer to Articles or Sections of this Declaration.
13.7 Survival of Liability. The termination of membership in the Association shall not
relieve or release any former Owner or Member from any liability or obligation incurred under,
35
or in any way connected with, the Association during the period of such ownership or
membership, or impair any rights or remedies which the Association may have against such
former Owner or Member arising out of, or in any way connected with, such ownership or
membership and the covenants and obligations incident thereto.
13.8 Construction. In the event of any discrepancies, inconsistencies or conflicts
between the provisions of this Declaration and the Articles, Bylaws or the Association Rules, the
provisions of this Declaration shall prevail.
13.9 Joint and Several Liability. In the case of joint ownership of a Lot, the liabilities
and obligations of each of the joint Lot Owners set forth in, or imposed by, the Community
Documents shall be joint and several.
13.10 Guests and Tenants. Each Lot Owner shall be responsible for compliance by his
agents, tenants, guests, invitees, licensees and their respective servants, agents, and employees
with the provisions of the Community Documents. A Lot Owner's failure to insure compliance
by such Persons shall be grounds for the same action available to the Association or any other
Lot Owner by reason of such Lot Owner's own noncompliance.
13.11 Attorneys' Fees. In the event the Declarant, the Association or any Lot Owner
employs an attorney or attorneys to enforce a lien or to collect any amounts due from a Lot
Owner or to enforce compliance with or recover damages for any violation or noncompliance
with the Community Documents, the prevailing party in any such action shall be entitled to
recover from the other party his reasonable attorneys' fees incurred in the action.
13.12 Number of Days. In computing the number of days for purposes of any provision
of the Community Documents, all days shall be counted including Saturdays, Sundays and
holidays; provided, however, that if the final day of any time period falls on a Saturday, Sunday
or holiday, then the next day shall be deemed to be the next day which is not a Saturday, Sunday
or holiday.
IN WITNESS WHEREOF, the Declarant has executed this Declaration as of the date
first written above.
HBT OF GLEN LAKES LLC, an Arizona limited
liability company
By: Towne Development, Inc., an Arizona
corporation, its Sole Member
By:
Kevin G. Kiesl, Vice President
[JBY4752 Version 10.24.16]
36
STATE OF ARIZNOA
)
) ss.
COUNTY OF MARICOPA
)
Personally came before me this ____ day of MONTH, DAY, YEAR, Kevin G. Kiesl, Vice
President Towne Development, Inc., Sole Member of HBT GLEN LAKES LLC, to me known to
be the person who executed the instrument and acknowledged the same.
Notary Public, State of ________
My Commission Expires:
37
EXHIBIT A
LEGAL DESCRIPTION
TRACTS A through G, inclusive, and LOTS 1 through 173, inclusive, of TREVINO , according
to the PLAT of record in the Office of the County Recorder of Maricopa County, Arizona,
recorded in Book 00000000 of Maps, Page 000.
38
EXHIBIT B
39
40
41
42
43
44
45
46
47
48
49
50
51
52