DISCLAIMER …..This an unofficial copy and though we have strived to keep it 100% accurate this document should be considered as a convenience and not as an OFFICIAL DOCUMENT. For an Official copy of this document you can obtain it at the Maricopa County Recorders Office
COVENANTS, CONDITIONS AND RESTRICTIONS
The undersigned, owner of that certain real property situated in the State of Arizona, County of Maricopa, known as 747 Bethany Home Road, more specifically described as follows:
Beginning at the NW ¼ Section 16, T2N, R3N, G&SRB&M; thence EAST 449.85 feet; thence S 00°01’10” E a distance of 40.00 feet to the TRUE POINT OF BEGINNING; thence EAST a distance of 212.10 feet, (this line being the South line of the North 7 feet of Tract A, Carr’s Ranch, Book 16 of Maps, page 5, Records of Maricopa County Recorder’s Office); thence S 00°00’15”E a distance of 599.94 feet, (this line being the West line of the East 5.5 feet of said Tract A); thence N 89°58’05” West a distance of 203.10 feet, (this line being the South line of said Tract A); thence N 00°01’10”W a distance of 390.13 feet to the TRUE POINT OF BEGINNING.
hereby covenants, agrees and declares that all of said property and apartment units thereon are and will be held, sold and conveyed subject to the following covenants, conditions and restrictions, which are hereby declared to be for the benefit of all of the property herein, and the owners thereof, their heirs, successors, grantees and assigns. This Declaration, together with the Plat heretofore recorded in Book 155 of Maps, page 28, and the Declaration of Horizontal Regime, heretofore recorded in Docket 9794, page 750, establishes a plan for the individual ownership of real property estates consisting of an area of cubic space and the improvements contained therein, together with an undivided 1/38th interest in the real property described above and all of the remaining property which is hereinafter defined and referred to as the “common elements”. Said instruments establish and impose a plan of condominium ownership for the improvement and development of said property described herein and the adoption and establishment of covenants, conditions, and restrictions upon said land and upon any and all apartment units constructed thereon, and upon the use, occupancy and enjoyment thereof. Every conveyance of any of said apartment units, or property or portion thereof shall be and is subject to the said covenants, conditions and restrictions, as follows:
(a) The terms “Apartment Unit”, “Apartment”, “Patio”, “Parking Space”, “Garage”, and “Common Elements” shall have the definition which is given to them in the Plat and Declaration of Horizontal Property Regime as recorded in Book 155 of Maps, at Page 28 thereof, and Docket 9794 at Page 750 respectively in the office of the County Recorder of Maricopa County, Arizona.
(b) An “Owner” is any person or entity that owns an Apartment Unit.
(c) “Association” means “747 EAST BETHANY HOME ROAD ASSOCIATION” and its successors and is comprised of all the owners of apartment units.
(d) The “Builder” shall refer to Blankenship Builders, Inc., and/or its assigns or successors in interest.
(e) The “Developer” shall refer to Blankenship Builders, Inc., and/or its successors in interest or assigns.
(f) “Majority of Owners” means the owners of more than one-half (1/2) of the apartment units.
(g) “Common Expenses” shall include: (1) all expenses of administration, of maintenance, operation, management, repairs or replacement of the common elements and of the portion of the apartment units required to be maintained by the Association; (2) all expenses declared to be common expenses by provisions of this Declaration or By-Laws; (3) all taxes assessed against the common elements; and (4) any valid charge against the Horizontal Property Regime as a whole, which may include a proration of the water used by the individual apartment units in the event common water meters are used.
2. Use Restrictions: The use of the property of the condominium shall be in accordance with the following provisions so long as the condominium exists.
2.1 Apartment Units: Each of the apartment units shall be occupied only by a single family, its servants and guests, as a residence and for no other purpose. Except as reserved to the Developer, no apartment may be divided or subdivided into a smaller unit, nor any portion thereof sold or otherwise transferred, without first amending this Declaration to show the changes in the apartments to be affected thereby.
2.2 Common Elements: The common elements shall be used only for the purposes for which they are intended in the furnishing of services and facilities for the enjoyment of the apartments.
2.3 Nuisances: No nuisances shall be allowed upon the condominium property, nor any use or practice which is the source of annoyance to residents or which interferes with the peaceful possession and proper use of the property by its residents. All parts of the property shall be kept in a clean and sanitary condition, and no rubbish, refuse or garbage allowed to accumulate nor any fire hazard allowed to exist. No apartment owner shall permit any use of his apartment or make any use of the common elements which will increase the rate of insurance upon the condominium property.
2.4 Lawful Use: No immoral, improper, offensive or unlawful use shall be made of the condominium property nor any part thereof; and all valid laws, zoning ordinances and regulations of all governmental bodies having jurisdiction thereof shall be observed. The responsibility of meeting the requirements of governmental bodies which require maintenance, modification or repair of the condominium property shall be the same as the responsibility for the maintenance and repair of the property concerned.
2.5 Leasing: Entire apartments may be rented provided the occupancy is only by the lessee and his family, its servants and guests. No rooms may be rented, except as a part of an apartment and no transient tenants may be accommodated.
2.6 Regulations: Reasonable regulations concerning the use of the condominium property may be made and amended from time to time by the Board of Directors of the Association; provided, however, that all such regulations and amendments thereto shall be approved by not less than 20 members of the Association before such shall become effective. Members not present at meetings considering such regulations or amendments thereto may express their approval in writing. Copies of such regulations and amendments thereto shall be furnished by the Association to all apartment owners and residents of the condominium upon request.
2.7 The following items shall NOT be permitted on the property;
(b) No outside visible antennas of any type
(c) No animals, livestock or poultry of any kind shall be raised, bred or kept on any lot, except that dogs, cats or other household pets may be kept provided that they are not kept, bred or maintained for any commercial purposes.
2.8 No advertising signs (except one of not more than five square feet “For Rent” or “For Sale” sign per apartment) billboards, unsightly objects, or nuisances shall be erected, placed or permitted to remain on the premises, nor shall the premises by used in any way or for any purpose which may endanger the health or unreasonably disturb the owner of any apartment or any resident thereof. Further, no business activities of any kind whatever shall be conducted in any building or in any portion of the premises. Provided, further, however, the foregoing covenants shall not apply to the business activities, signs and billboards, or the construction and maintenance of buildings, if any, of the Builder, the Developer or their agents and assigns during the construction and sale period.
2.9 Any and all boats and campers mounted on trucks shall be kept covered and in the parking spaces or garages and are specifically restricted from parking on the streets and common elements. Trailers and trucks in excess of ¾ ton shall be completely prohibited from parking, standing or being kept within the confines of the Horizontal Property Regime, including the parking spaces and garages.
2.10 All equipment of any kind, woodpiles, storage piles, trunks, boxes or any other items of a similar nature shall be kept only in the apartment, garage or patio, provided, however, said items shall not be permitted to be kept on the patio in such a manner as to be visible from the common elements and shall not be kept in the common elements. All garbage and/or trash shall be kept in the receptacles provided for it and all such receptacles shall be kept in the receptacle area provided for them. No rubbish, trash or garbage shall be permitted to be kept in the patio area or on the common elements except in the area provided for the same by the Builder and/or Developer.
2.11 No planting or gardening shall be done outside the area of the patio, and no fences, hedges or walls shall be erected or maintained upon said premises, outside or inside the area of the patios, except such as are installed in accordance with the initial construction of the buildings located thereon or as approved by the Association’s Board of Directors or its designated representative. The individual apartment unit owner shall have the right to do whatever gardening or planting he desires within his patio and to put other structures within his patio, except that no planting shall be done which would constitute a hedge higher than the patio fences nor shall any plant or structure be permitted within the patio which will materially harm the exterior design of the entire condominium project. Except for the right of ingress and egress and except for the intended use of the common area facilities by the Apartment Unit owners, the owners of Apartment Units are hereby prohibited and restricted from using any land or airspace outside of their apartment units except as may be allowed by the Association’s Board of Directors. It is expressly acknowledged and agreed by all parties concerned that this paragraph is for the mutual benefit of all owners of Apartment Units of 747 East Bethany Home Road Condominium and is necessary for the protection of said owners.
2.12 Any wall which separates one apartment from another shall not be used by an owner of the Apartment Unit for the purpose of attaching anything to said wall which is recreational or which produces noise or sound in any way whatsoever nor shall any owner be permitted to penetrate any said wall in excess of two (2) inches from the exterior of said wall.
2.13 Provided, however, that until Developer has completed and sold all of the Apartment Units of the condominium, neither the Apartment Unit Owners nor the Association nor the use of the condominium property shall interfere with the completion of the contemplated improvements and the sale of the apartment units. Developer and Builder may make such use of the unsold units and common elements as may facilitate such completion and sale, including, but not limited to, maintenance of a sales office, the showing of property and the display of signs.
3. Maintenance, Management, Alteration and Improvement: Responsibility for the maintenance of the condominium property, and restrictions upon the alteration and improvement thereof, shall be as follows:
3.1 Apartment Units.
(a) By the Association. The Association shall maintain, repair and replace at the Association’s expense:
(1) All portions of the perimeter walls of an apartment which walls shall include the outside walls of the apartment and the garage, the patio fences (except for the interior surfaces of the fences); all fixtures (except the air-conditioning and heating unit which is the apartment owner’s responsibility) on the exterior of the apartment or garage; the boundary walls of the apartments, structural portions of the floors and ceilings including those that separate the lower floor from the second floor, all portions of the load bearing columns and load bearing walls, except that it shall not include any interior surfaces of the said walls, floors, ceilings and/or load bearing columns of the apartment unit which said interior surfaces of the apartment and of the garages shall be the responsibility of the apartment owner.
(2) All conduits, ducts, plumbing, wiring and other facilities for the furnishing of utility services which are contained in the portions of an apartment unit maintained by the Association; except that all said conduits, ducts, plumbing, wiring and other facilities which provide service solely to one apartment unit shall be the responsibility of the owner of said apartment unit at said owner's’ sole expense.
(3) All incidental damage caused to an apartment unit by such work shall be promptly repaired at the expense of the Association.
(b) By the apartment unit owner. The responsibility of the apartment unit owner shall be as follows:
(1) To maintain, repair and replace at his expense all portions of his apartment unit except the portions to be maintained by the Association. Such shall be done without unreasonably disturbing the rights of other apartment unit owners.
(2) Not to paint or otherwise decorate or change the appearance of any portion of the exterior of the apartment unit building, including the exterior lighting, and the exterior of the patio fences.
(3) It shall be the responsibility of the apartment unit owner to maintain the area within the patio including all yard work and gardening required within the patio area.
(4) To promptly report to the Association any defect or need for repairs the responsibility for the remedying of which is that of the Association.
(5) To repair, maintain and/or replace at the apartment owner’s sole expense, his or her roof over his or her apartment, carport, and garage, such roof to include the beams thereof.
(c) Alteration and Improvement. Except as elsewhere reserved to Developer, neither an apartment unit owner nor the Association shall make any alterations in the portions of an apartment unit or an apartment unit building which are to be maintained by the Association, or remove any portion thereof, or make any additions thereto, or do anything which would jeopardize the safety or soundness of the apartment unit building, or impair any easement, without first obtaining approval in writing of owners of all other apartment units and the approval of the Board of Directors of the Association. A copy of the plans for all of such work prepared by an architect licensed to practice in this state shall be filed with the Association prior to the start of the work.
3.2 Common Elements.
(a) By the Association. The maintenance, management and operation of the common elements shall be the responsibility and the expense of the Association.
(b) Alteration and Improvement. After the completion of the improvements included in the common elements which are contemplated by the Plat, Declaration of Horizontal Regime and these Declarations, there shall be no alteration or further improvement of common elements without prior approval in writing by the record owners of not less than 20 apartment units and which does not interfere with the rights of any owners without their consent, may be done. All apartment unit owners shall be assessed one-thirty eighth (1/38th) of the total cost of such improvements and each unit owner shall own a full one-thirty-eighth (1/38th) interest in the common elements which are altered or further improved.
(c) 4. Assessments. The making and collection of assessments against apartment unit owners for common expenses shall be as follows, and each apartment unit owner, for himself, his heirs, successors and assigns, covenants that each apartment unit shall be subject to an assessment in the amount to be determined in the following manner:
4.1 Such apartment unit’s prorated share of all common expenses.
4.2 Such apartment unit’s prorated share of such sum as the Board of Directors of the Association shall determine to be fair and prudent for the establishment and maintenance of a reserve for repair, maintenance, taxes and other charges as specified herein, including fire, liability and other hazard insurance premiums.
4.3 Such apartment unit’s prorated share of such additional sums as the Board of Directors of the Association shall determine to be necessary to meet the primary purposes of the Association.
4.4 Each apartment unit’s prorated share shall be 1/38th of the total amount determined under sub-paragraphs 4.1, 4.2 and 4.3 above.
4.5 The amount to be prorated among the owners of the apartment units pursuant of paragraphs 4.1, 4.2, 4.3 and 4.4 above shall be established annually by the Board of Directors of the Association. Said amount shall be comprised of an estimate of the amount which will be required in the future year and also any amount or sums which were spent in the prior year which were not covered or paid for by the estimated amount for said prior year. At any time during the year, if it appears that the amount so determined by the Board of Directors of the Association is too high or too low, the Board of Directors may increase or decrease the said annual assessment and also the amount prorated to each apartment unit and also the monthly amount to be paid by the apartment unit owner.
At the time of the first conveyance of each apartment unit, and from time to time thereafter, at least annually, the Board of Directors, or its designated representative, shall notify the owners of the apartment units of the amount of the annual assessment, the amount to be prorated to each apartment unit, and the monthly amount which each apartment unit owner shall pay, which monthly amount shall be paid by the apartment unit owner, in advance, once a month, until there has been a change in the amount in the manner outlined above. The said monthly amount shall be paid to the Board of Directors or to any agent appointed by the Board of Directors to collect said payments, which agent may be the holder of the mortgage on the apartment unit.
Each apartment unit owner, for himself, his heirs, successors, grantees and assigns, covenants that with respect to charges so determined during the period that he is an owner, he will pay these charges directly to the party or parties as directed by the Association’s Board of Directors.
Each apartment unit owner further agrees that these charges if not paid within ten (10) days after the first day of each month shall become a lien upon said owner’s apartment unit and shall continue to be such lien until fully paid. This lien shall be subordinate to the lien of any first mortgage.
Each apartment unit owner, by his acceptance of a deed to an apartment unit hereby expressly vests in the Association or its agents, the right and power to bring all action against such owner personally for the collection of such charges as a debt and to enforce the aforesaid lien by all methods available for the enforcement of such liens, including foreclosure by an action brought in the name of the Association in a like manner as a mortgage of real property, and such owner hereby expressly grants to the Association a power of sale in connection with said lien. In addition, the Association may make a reasonable assessment as a “late charge” and may make payments on any prior lien, including any mortgage or taxes on the apartment unit, and such payments shall be added to the lien in favor of the Association. The lien provided for in this section shall be in favor of the Association and shall be fore the benefit of all other apartment unit owners. The Association, acting on behalf of the apartment unit owners, shall have the power to bid in such a foreclosure sale and to acquire and hold, lease, mortgage and convey the property so purchased.
No owner of an apartment unit may exempt himself from liability for his contribution toward the common expenses by waiver of the use or enjoyment of any of the common elements or by the abandonment of his apartment unit.
4.6 All sums due to the Association shall carry interest at the rate of eight percent (8%) per annum from the due date until paid. All payments on account shall be first applied to any late charge, then to interest and then to the assessment payment first due.
5. Association. The operation of the condominium shall be by an unincorporated association which shall be organized and shall fulfill its functions pursuant to the following provision.
5.1 Name. The name of the association shall be 747 East Bethany Home Road Association.
5.2 Powers. The Association shall have all of the powers and duties set forth in the Condominium Act, except as limited by this Declaration and the By-Laws, and all of the powers and duties reasonably necessary to operate the condominium as set forth in this Declaration and the By-Laws and as they may be amended from time to time. Provided, however, that the power of the Association to purchase an apartment unit of the condominium shall be limited to purchase at sales in foreclosure of liens for assessments for common expenses, at which sales the Association shall bid no more than the amount secured by its lien. This provision shall not be changed without unanimous approval of the members and the joiner of all record owners of mortgages upon the condominium.
(a) Qualification. The members of the Association shall consist of all of the record owners of apartment units.
(b) Change of membership. Change of membership in the Association shall be established by recording in the records of Maricopa County Recorder’s Office, a deed or other instrument establishing a record title to an apartment unit in the condominium and the delivery to the Association of a certified copy of such instrument, the owner designated by such instrument thereby becoming a member of the Association. The membership of the prior owner shall thereby be terminated.
(c) Until such time as the Developer sells thirty-eight (38) apartment units, or at such time as the Developer in its sole discretion, may determine and decide to relinquish control of the Association to the other apartment unit owners by giving said owners written notice of the Developers relinquishment of control (which event shall be referred to as the “Transfer of Control Date”) for the purpose of voting, there shall be two classes of membership as follows:
CLASS A. Class A members shall be all owners of apartment units with the exception of the Developer. A Class A member shall not have the right to vote until the “Transfer of Control Date”. Thereafter, each Class A member shall be entitled to one vote for each apartment unit owned.
CLASS B. Class B member shall be the Developer. The Class B member shall be entitled to one vote for each apartment unit owned by it. For this purpose, an apartment unit shall mean each apartment unit depicted on the Plat recorded in Book 155, page 28, records of Maricopa County Recorder’s Office, even though no construction of the surrounding walls, roof or other structure has yet been commenced or completed. For the purposes of these Declarations, all apartment units owned by a Trust of which Developer is a beneficiary shall be deemed to be owned by Developer.
(d) Designation of voting Representative. If an apartment unit is owned by one person his right to vote shall be established by the record title to his apartment unit. If an apartment unit is owned by more than one person, or is under lease, the person entitled to cast the vote for the apartment unit shall be designated by a certificate signed by all of the record owners of the apartment unit and filed with the secretary of the Association. If an apartment unit is owned by a corporation, the person entitled to cast the vote for the apartment unit shall be designated by a certificate of appointment signed by the president or vice-president and attested by the secretary or assistant secretary of the corporation and filed with the secretary of the Association. Such certificates shall be valid until revoked or until superseded by a subsequent certificate or until a change in ownership of the apartment unit concerned. A certificate designating the person entitled to cast the vote of the apartment unit may be revoked by an owner thereof.
(e) Approval or disapproval of matters. Whenever the decision of an apartment unit owner is required upon any matter, whether or not the subject of an Association meeting, such decision shall be expressed by the same person who would cast the vote of such owner if in an Association meeting, unless the joiner of records owners is specifically required by this Declaration.
(f) Restraint upon assignment of shares in assets. The share of a member in the funds and assets of the Association cannot be assigned, hypothecated or transferred in any manner except as an appurtenance to his apartment unit.
5.4 Board of Directors. The affairs of the Association shall be conducted by a Board of five (5) Directors who shall be designated in the manner provided in the By-Laws, and who need not be members of the Association.
5.5 Indemnification. Every Director and every Officer of the Association shall be indemnified by the Association against all expenses and liabilities, including counsel fees, reasonably incurred by or imposed upon him in connection with any proceeding to which he may be a part, or in which he may become involved, by reason of his being or having been a Director or Officer of the Association, or any settlement thereof, whether or not he is a Director or Officer at the time such expenses are incurred, except in such cases wherein the Director or Officer is adjudged guilty of willful misfeasance or malfeasance in the performance of his duties; provided that in the event of a settlement the indemnification herein shall apply only when the Board of Directors approves such settlement and reimbursement as being for the best interests of the Association. The foregoing rights of indemnification shall be in addition to and exclusive of all other rights to which such Director or Officer may be entitled.
5.6 Limitation upon Liability of Association and Association Members. Notwithstanding the duty of the Association to maintain and repair parts of the condominium property, the Association or any of its Members shall not be liable for injury or damage, other than the cost of maintenance and repair, caused by any latent condition of the property to be maintained and repaired by the Association, or by the elements or other persons or owners.
5.7 Property in Trust. All funds and the titles of all properties acquired by the Association and the proceeds thereof shall be held in trust for the members of the Association in accordance with the provisions hereof and the By-Laws.
5.8 In the event any apartment unit owner shall be in arrears in the payment of any amounts due under any of the provisions of this Declaration for a period of ten (10) days, or shall be in default in the performance of any of the terms of this Declaration for a period of (10) days, said apartment unit owner’s right to vote as a member of the Association shall be suspended and shall remain suspended until all payments are brought current and all defaults remedied.
6.1 Authority to Purchase. All insurance policies upon the condominium property shall be purchased by the Association for the benefit of the Association and the apartment unit owners and their mortgagees as their interests may appear, and provisions shall be made by the issuance of certificates or mortgagee endorsement to the mortgagees of apartment unit owners. Such policies and endorsements thereon shall be deposited with the Association. Apartment unit owners may obtain insurance coverage at their own expense upon their own personal property and for their personal liability and living expense, and the apartment unit owner may also obtain casualty insurance on the portion of the apartment building which surrounds his cubic space apartment such as the walls, roof, floor, ceilings, etc.
(a) Casualty. All buildings and improvements upon the land (including such interior walls as were originally constructed) and all personal property included in the common elements shall be insured by the Association in an amount equal to the maximum insurable replacement value, as determined annually by the Board of Directors of the Association. Such coverage shall afford protection against:
(1) Loss or damage by fire and other hazards covered by a standard extended coverage endorsement, and
(2) Such other risks as from time to time shall be customarily covered with respect to buildings on the land, including, but not limited to vandalism and malicious mischief.
(b) Public liability in a minimum amount of $500,000.00 and in such higher amounts and with such coverage as shall be required by the Board of Directors of the Association, including, but not limited to, hired automobile and non-owned automobile coverages, and with cross liability endorsement to cover liabilities of the apartment unit owners as a group to an apartment unit owner.
(c) Workmen’s compensation policy to meet the requirements of law.
(d) Such other insurance as the Board of Directors of the Association shall determine from time to time to be desirable.
(e) The said insurance policy purchased by the Association shall, to the extent possible, contain the following provisions:
(1) That the coverage afforded by said policy shall not be brought into contribution or proration with any insurance which may be purchased by apartment unit owners or their mortgagees;
(2) That the conduct of any one or more apartment unit owner shall not constitute grounds for avoiding liability on said policy
(3) That any “no other insurance” clause should exclude insurance purchased by apartment owners or their mortgagees;
(4) That there shall be no subrogation with respect to the Association, its employees, apartment unit owners and members of their household or it should name said persons as additional insured.
6.3 Premiums. Premiums upon insurance policies purchased by the Association shall be paid by the Association as a common expense.
6.4 Insurance trustee; shares of proceeds. All insurance policies purchased by the Association shall be for the benefit of the Association and the apartment unit owners and their mortgagees as their interests may appear, and shall provide that all proceeds covering property losses shall be paid to the Association. Notwithstanding anything herein to the contrary, including any provision for a mortgagee, the Association shall hold all insurance proceeds collected by it in trust for rebuilding the damaged common elements and apartment unit buildings. The Association or its agents shall have exclusive authority to negotiate with the insurance carrier and to adjust losses, make settlements and give releases to the insurance carrier and to collect monies from the insurance carrier.
6.5 It shall be the individual responsibility of each owner to provide, as he sees fit, homeowners liability insurance, theft or other insurance covering personal property damage and loss.
6.6 In the event of damage or destruction to the property by fire or other casualty, the Board of Directors shall, upon receipt of the insurance proceeds, contract to rebuild or repair such damaged or destroyed portions of the property to as good condition as formerly. All such insurance proceeds shall be deposited in a bank or other financial institution, the accounts of which bank or other financial institution are insured by a Federal governmental agency, with the provision agreed to by said bank or institution that such funds may be withdrawn only by signature of at leave 1/3 of the members of the Board of Directors, or by an agent duly authorized by the Board of Directors. The Board of Directors shall contract with any licensed contractor, who shall be required to provide a full performance and payment bond for the repair, reconstruction or rebuilding of such destroyed building or buildings. In the event the insurance proceeds are insufficient to pay all the costs of repairing and/or rebuilding to the same condition as formerly, the Board of Directors shall levy a special assessment against the apartment unit owners whose apartment unit building was damaged to make up any such deficiency. The proportion of said deficiency which shall be assessed against each said damaged apartment unit shall be in the same proportion that the cost of repair of each said apartment unit bore to the total cost of repairs required to be made to the apartment building which was damaged. Provided, however, that the special assessment shall be levied equally against all apartment unit owners to make up any deficiency for repair or rebuilding of the common elements not a physical part of an apartment unit. In the event such insurance proceeds exceed the cost of repair and reconstruction, such excess shall be paid over to the owners and mortgagees of all apartment units. Such payments shall be made to all such owners and their mortgagees in proportion to their undivided interest in the common elements.
6.7 Assessments. If the proceeds of insurance are not sufficient to defray the estimated costs of reconstruction and repair by the Association, or it at any time during reconstruction and repair, or upon completion of reconstruction and repair, the funds for the payment of the costs thereof are insufficient, assessments shall be made against the apartment owners pursuant to the provisions of Paragraph 6.6
6.8 All said special assessments shall be paid within sixty (60) days from the date of levy and may be enforced by foreclosure in the same manner as is specified in Paragraph 4.5.
6.9 Plans and specifications. Any reconstruction or repair must be substantially in accordance with the plans and specifications for the original building, or if not, then according to plans and specifications approved by the Board of Directors of the Association, which approval shall not be unreasonably withheld.
6.10 Responsibility. As to damage which is only to those parts of an apartment unit for which the responsibility of maintenance and repair is that of the apartment unit owner, then the apartment unit owner at his own expense shall be responsible for reconstruction and repair after casualty. In all other instances, the responsibility of reconstruction and repair after casualty shall be that of the Association; provided, however, that the interior walls of the apartment unit which were originally built in said apartment shall be restored by the Association, provided the particular loss is covered by the insurance provided by the Association.
7. Management Agreement. Each owner hereby agrees to be bound by the terms and conditions of all management agreements entered into by the Association. A copy of all management agreements shall be available to each owner. Any and all management agreements entered into by the Association shall provide that said management agreement may be cancelled by an affirmative vote of three-quarters (3/4) of the members of the Association.
8. The common elements shall remain undivided; and no owner shall bring any action for partition, it being agreed that this restriction is necessary in order to preserve the rights of the owners with respect to the operation and management of the common elements.
9. The responsibility and expense for maintenance of electricity, plumbing and other utilities which provide service solely to an individual apartment unit shall remain with the owner of said apartment unit as is set forth in Paragraph 3.1 (a) (2) hereof.
10. Each apartment unit shall be subject to an easement for encroachments created by construction, settling and overhangs, as designed or constructed by the original Builder. A valid easement for said encroachments and for the maintenance of same, so long as it stands, shall and does exist. In the event the multi-family structure is partially or totally destroyed, and then rebuilt, the owners of apartments agree that minor encroachments of parts of the adjacent apartment units or common elements due to construction shall be permitted and that a valid easement for said encroachment and the maintenance thereof shall exist.
11. There is hereby created a blanket easement upon, across, over and under the above described property for reasonable ingress, egress, installation, replacing, repairing and maintaining all utilities, including but not limited to water, sewers, gas, telephones and electricity. By virtue of this easement, it shall be expressly permissible for the providing telephone and/or electrical company to erect, replace and maintain the necessary poles and other necessary equipment on said property and to bury underground conduits, wires and a buried cable system, together with all the necessary appurtenances, and to place, affix, maintain and replace telephone and electrical wires, cables, circuits, conduits and fixtures on, above, across, in and under the common elements and the apartment unit building, including the roofs and exterior and interior walls of all condominium structures. Notwithstanding anything to the contrary contained in this paragraph, no sewers, electrical lines, water lines, or other utilities may be installed or relocated on said property except as initially programmed and approved by the Builder of the condominium or thereafter approved by said Builder or the Association’s Board of Directors. This easement shall in no way affect any other recorded easement on said premises.
12. (a) The covenants, restrictions, reservations and conditions and easements contained herein shall run with the land and shall be binding upon all persons purchasing, leasing, sub-leasing or occupying any apartment unit, their heirs, successors, executors, administrators, grantees and assigns. After the date on which this instrument has been recorded, these covenants, restrictions, reservations and conditions may be enforced by the Association or its Board of Directors, which shall have the right and duty to enforce the same and expend Association monies in pursuance thereof, and also may be enforced by the owner of any apartment unit or any one or more of said parties. An action to abate the breach of any of the said covenants, restriction, reservations and conditions may be brought against any apartment unit owner even though said breach was in existence at the time the owner acquired an interest in or title to said apartment unit. All charges against an apartment unit made by the Association pursuant to any of the provisions hereof shall constitute a lien upon the said apartment unit and all purchasers shall take title to said apartment unit subject to any said liens which have accrued prior to the date of purchase, except as to purchasers who have acquired title through foreclosure of a first mortgage and the subsequent Sheriff’s sale (or through any equivalent proceedings such as, but not limited to the taking of a deed in lieu of foreclosure), and except as to the successors in interest to said purchasers, and as those purchasers, and their successors in interest, they shall take title pursuant to the provisions of Paragraphs 12 (b) (1) (2) and (3).
(b) Notwithstanding and prevailing over any other provisions of this Declaration, of the Association’s Bylaws, or any rules, regulations or management agreements, the following provisions shall apply to and benefit each holder of a first mortgage upon an apartment unit (called the first mortgagee):
(1) An action to abate the breach of any of the covenants, restrictions, reservations and conditions may be brought against the purchasers who have acquired title through foreclosure of a first mortgage and the subsequent Sheriff’s sale ( or through any equivalent proceedings), and the successors in interest to said purchasers, even though the breach existed prior to the time said purchaser acquired an interest in the said apartment unit.
(2) During the pending of any proceedings to foreclose the first mortgage, including any period of redemption, the first mortgagee (or any receiver appointed in such action) may, but need not, exercise any or all of the rights and privileges of the owner of the apartment unit, including but not limited to the right to vote as a member of the Association to the exclusion of the owner’s exercise of such rights and privileges.
(3) The first mortgagee, or any other party acquiring title to a mortgaged apartment unit through foreclosure suit of the first mortgage or through any equivalent proceedings such as, but not limited to, the taking of a deed in lieu of foreclosure, and the successors in interest to said purchasers, shall acquire title to the mortgaged apartment unit free and clear of any lien authorized by or arising out of any of the provisions of this Declaration which secures the payment of any assessment for charges accrued prior to the final conclusion of any such foreclosure suit or equivalent proceedings, including the expiration date of any period of redemption, except as follows: Any such unpaid assessment against the apartment unit foreclosed which may be treated as an expense common to all of the apartment units, which expense may be collected by a pro rata assessment of one-thirty-eighth (1/38th) of the total amount against each of the apartment units, including the apartment unit foreclosed against, and which pro rata assessment may be enforced as a lien against each apartment unit in the manner provided for other assessments authorized in this Declaration. Any such unpaid assessment shall nevertheless continue to exist as the personal obligation of the defaulting owner of the respective apartment unit to the Association, and the Board of Directors may use reasonable efforts to collect the same from the owner even after he is no longer a member of the Association. There shall be a lien upon the interest of the first mortgagee or other party which acquires title to a mortgage unit by foreclosure suit of said first mortgage, or by equivalent procedures, for all assessments authorized by this Declaration which accrue and are assessed after the date the acquirer has acquired title to the apartment unit free and clear of any right of redemption.
13. No action shall at any time be taken by the Association or its Board of Directors which in any manner would discriminate against any owner or owners in favor of the other owners.
14. Compliance and Default. Each apartment unit owner shall be governed by and shall comply with the terms of the Declaration of Horizontal Regime, this Declaration of Restrictions, and the Bylaws and Regulations adopted pursuant thereto, and said Documents and Regulations as they may be amended from time to time. Failure of an apartment unit owner to comply therewith shall entitle the Association or other apartment unit owners to the Following relief in addition to the remedies provided by the Horizontal Regime Act of the State of Arizona.
14.1 Negligence. An apartment unit owner shall be liable for the expense of any maintenance, repair or replacement rendered necessary by his act, neglect or carelessness or by that of any member of his family or his or their guests, employees, agents, or lessees, but only to the extent that such expense is not met by the proceeds of insurance carried by the Association. Such liability shall include any increase in fire insurance rates occasioned by use, misuse, occupancy or abandonment of an apartment unit or its appurtenances or the common elements.
14.2 Costs and Attorney’s Fees. In any proceeding arising because of an alleged failure of an apartment unit owner to comply with the terms of the Declaration, Bylaws and Regulations adopted pursuant thereto, and said Documents and Regulations as they may be amended from time to time, the prevailing party shall be entitled to recover the costs of the proceeding and such reasonable attorney’s fees as may be awarded by the Court.
14.3 No Waiver of Rights. The failure of the Association or any apartment unit owner to enforce any covenant, restriction or other provision of the Horizontal Regime, this Declaration, the Bylaws, or the Regulations adopted pursuant thereto, shall not constitute a waiver of the right to do so thereafter.
15.1 since any damage, either partial or total, to an apartment unit will materially affect the value of all the other undamaged apartment units, even though they are completely free of any physical damage and are completely habitable, it shall be mandatory that all damage done to an apartment unit shall be repaired and/or the apartment unit rebuilt and reconstructed pursuant to the provisions of Paragraphs 6 through 6.10 hereof.
15.2 The Horizontal Property Regime may be terminated by agreement of all of the owners and holders of mortgages and encumbrances pursuant to the provisions of A.R.S. 33-556.
15.3 Shares of Owners After Termination. After termination of the condominium, the apartment unit owners shall own the condominium property and all assets of the Association as tenants in common in undivided shares, and their respective mortgages and lienors shall have mortgages and liens upon the respective undivided shares of the apartment unit owners. Such undivided shares of the apartment unit owners shall be the same as the undivided shares in the common elements appurtenant to the owners’ apartment units prior to the termination.
15.4 Amendment. This section concerning termination cannon be amended without consent of all apartment unit owners and of all owners of mortgages on all apartment units.
16. These Declarations of Covenants, Conditions and Restrictions, unless specifically prohibited elsewhere herein as to particular provisions, may be amended by a majority vote of the members of the Association then eligible to vote.
17. The singular wherever used herein shall be construed to mean the plural when applicable, and the necessary grammatical changes required to make the provisions hereof apply either to corporations or individuals, men or women, and shall in all cases be assumed as though in each case fully expressed.
18. The invalidity of any one or more phrases, sentences, clauses, paragraphs or sections hereof shall not affect the remaining portions of this instrument or any part thereof, all of which are inserted conditionally on their being held valid in law and in the event that one or more of the phrases, sentences, clauses, paragraphs or sections contained therein should be invalid or should operate to render this agreement invalid, this agreement shall be construed as if such invalid phrase or phrases, sentence or sentences, clause or clauses, paragraph or paragraphs, or section or sections had not been inserted. In the event that any provision or provisions of this instrument appear to be violative of the Rule against Perpetuities, such provisions or provision shall be construed as being void and of no effect as of twenty-one (21) years after the death of the last surviving of Rudolph Mariscal, Phillip Weeks and their respective wives and children who shall be living at the time this instrument is executed, whichever is the later.
Dated this 13th day of October, 1972.