Covenants Conditions and Restrictions
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When recorded return to:
Tim Fyke, Esq.
Robbins~& Green, P. A.
1900 Valley Bank Center
Phoenix, AZ 85073
DECLARATION SUBMITTINC PROPERTY TO
HORIZONTAL PROPERTY REGIME TOGETHER WITH COVENANTS,
CONDITIONS AND RESTRICTIONS FOR WINDSOR PLACE
THIS DECLARATION is made as of the date hereinafter
set forth by COAM, INC., a California corporation (hereinafter
referred to as ”Declarant”).
RECITALS:
A. Declarant is the owner of the following described
real property situated in the City of Phoenix County of Maricopa
State of Arizona;
PARCEL NO. 1
Lots One (1) through Fourteen (14), inclusive, ROANOKE
NOOK, according to the plat of record in the office of the
County Recorder of Maricopa County, Arizona, in Book 34 of
Maps, page 21;
EXCEPTING THEREFROM, that part of Lot 2, as
quit-claimed to the City of Phoenix for street purposes in
instrument recorded August 29, 1961 in Docket 3826, page
238, described as follows:
BEGINNING at the Northeast corner of said Lot 2;
thence South along the East line of Lot 2, a distance of 5
feet; thence Northwesterly to a point on the North line of
Lot 2, which is 5 feet west of the Northeast corner thereof;
thence East, along the North line of Lot 2, a distance of 5
feet to the point of beginning.
PARCEL NO. 2:
The East 62 feet of Lot One (1), NORTH BALTIMORE HEIGHTS,
according to the plat of record in the office of the County
Recorder of Maricopa County, Arizona, in Book 3 of Maps,
page 4;
EXCEPT THEREFROM, the North 231 feet thereof.
PARCEL NO. 3:
That part of ROANOKE AVENUE, as shown on the plat of
ROANOKE NOOK, according to the plat of record in the office
of the County Recorder of Maricopa County, Arizona, in Book
34 of Maps, page 21, lying west of the West line of Fifth
Street as shown thereon.
B. Declarant desires to submit and subject the above-
described real property, together with all buildings, improvements
and other permanent fixtures of whatsoever kind thereon, and
all rights. easements, privileges and appurtenances belonging
or in any way pertaining thereto (hereinafter sometimes called
"Condominium Property" or “Property”) to a horizontal-property
regime pursuant to Sections 33-551 through 33-561, Arizona
Revised Statutes, as same may be amended.
C. Declarant desires to establish certain easements
and rights in, over and upon the Property and certain mutually
<line missing>
to the proper use, conduct and maintenance thereof for its own
benefit and for the mutual benefit of all persons who now or
hereafter use, own or occupy all or any part of the Property.
D. Declarant desires and intends that the apartment
owners, mortgagees, beneficiaries and trustees under deeds of
trust, occupants and all other persons hereafter acquiring any
interest in the Property shall at all times enjoy the benefits
of, and shall hold their interests subject to, the rights,
easements, privileges and restrictions hereinafter set forth,
all of which are declared to be in furtherance of a plan to
promote and protect the cooperative aspects of the Property and
are established for the purpose of enhancing and perfecting the
value, desirability and attractiveness thereof.
NOW, THEREFORE, declarant, as the owner of the real
estate described above, and for the purposes set forth herein,
declares as follows:
1. Name - The name of this Horizontal Property
Regime shall be WINDSOR PLACE.
~ 2. Definitions - As used herein, unless the context
otherwise requires:
2.1 "Act" means Section 33-551 through Section
33-561, Arizona Revised Statutes, as the same may be amended.
2.2 "Apartment" means a part of the Property
consisting of one or more rooms [excluding any balcony or
patio, and any other rights or uses appurtenant to each Apartment)
designated by a letter and number as shown on the Plat. There
are one hundred sixty-seven (l6?) Apartments located upon the
Property, and each Apartment is designated by one of the letters
and numbers as shown on the Plat. Each Apartment is composed of
and includes the space enclosed and bounded by the interior
finished surfaces of the floor, ceiling and perimeter walls there
of, all as shown on the Plat; provided, however, no structural
parts of the Building in which each Apartment is located, and no
pipes, wires, conduits, ducts, flues, shafts or public utility,
'water or sewer lines, situated within an Apartment and forming
part of any system serving one or more other Apartments or the
Common Elements shall be deemed to be part of an Apartment.
2.3 "Apartment Unit” means an Apartment; a
balcony (if located on the second or higher level), or a patio
(if located on the first level); and the rights of exclusive
use assigned to and associated with that Apartment, which
rights are described elsewhere herein; provided however, Apartment
Units designated as C~l02 through C-107, inclusive; D-102 through
D-107, inclusive and E-102 through B-l07, inclusive do not
include either a patio or a balcony. All structural parts of the
Building in which each Apartment Unit is located and all pipes,
wires, conduits, ducts, flues, shafts or public utility water or
sewer line situated within such Apartment Unit and forming part
of any system serving one or more other Apartment Units or the
Common Elements shall be deemed to be part of the Common
Elements. Apartment Units are designated by the same letter and
number as the letter and number of the Apartment constituting
part of that Apartment Unit.
2.4 "Articles of Incorporation" or "Articles"
means the Articles of Incorporation of Windsor Place Association,
a_non-profit corporation whose membership will be comprised
of the Owners of all the Units. ,
2.5 "Association" means Windsor Place Association
Inc., an Arizona non-profit corporation, the members of which
shall D6 the Owners of all of the Units.
2.6 "Board" or "Board of Directors" means the
governing body of the Association as more particularly set forth
in paragraph 10.2 hereof.
2.7 "Building" means one (or more, or all, it the
context requires) of the principal structures Shown on the Plat
as containing Apartments and erected upon the land described in
part A of the Recitals above. There are five (5) Buildings which
contain Apartments, and each Building is shown and described on
the Plat.
2.8 "Bylaws" means the Bylaws of the Association
as same may be amended from time to time. .' '
2.9 "Common Expenses" means the items more
particularly described in paragraph 11.1 below.
2.10 "Common Elements” means the “general common
elements", as that term is defined in Section 33-551, Arizona
Revised Statutes, and includes the land (including Tract 2 shown
on the Blat) and all other portions of the Property, including
but not limited to all corridors, utility rooms, elevators,
lounges, stairways and other portions and parts of the Property
shown on the Plat, except the Apartments, the balconies and the
patios. The Common Elements are described in paragraph 4.4
below.
2.11 "Condominium Constituent Documents means
this Declaration and any amendments hereto, the Articles and
Bylaws, any rules and regulations of the Association, and all
other such documents that pertain to the Condominium Project.
2.12 “Condominium Project” means the Property and
each and every component thereof, including the Apartment Units
and the Common Elements.
2.13 ”Declarant" means Coam, Inc., a California
corporation, and its successors cr assigns (if specifically so
designated in the instrument of transfer).
2.14 'First Mortgage” means a first lien deed of
trust, as well as a first mortgage, on a Unit held by an "insti-
tutional lender”. "First Mortgagee” means the holder of a First
Mortgage, as well as a beneficiary or trustee under a first deed
of trust, so long as such First Mortgage is held by an "institu-
tional lender". An "institutional lender" means a bank, savings
and loan association, an established or recognized mortgage
company or mortgage broker, an insurance company, or any other
such like entity chartered under state or federal laws, and any
federal or state agency. The Declarant, as holder of any first
mortgage or as beneficiary under any first lien deed of trust,
shall be deemed to be a "First mortgagee' and the holder of a
'First Mortgage".
2.15 “Declaration” means this instrument by
which the Property is submitted to a Horizontal Property Regime
as such Declaration may from time to time be amended.
2.16 "Occupant" means a person or persons,
in possession of an Apartment Unit.
2.17 "Owner" or "Co-Owner" or “Unit Owner” means
the person or persons whose estates or interests individually or
collectively aggregate fee simple ownership of a Unit, and the
person or persons who are purchasers under a valid and outstnding
recorded agreement of sale with respect to a Unit, but shall not
include a person whose interest is limited to security for a loan
unless the context otherwise requires.
2.18 "Plat" means the plat of survey of the
Property and of all Units submitted to this Horizontal Property
Regime, which said Plat is recorded in Book 220 of maps, at page
19, on the official records of the County Recorder of Maricopa
County, Arizona. The Plat is incorporated herein, in its
entirety, by this reference and shall be deemed to constitute a
part of this Declaration.
2.19 "Property" or "Condominium Property" shall
have the same meaning as set forth in Section 33-551, Arizona
Revised Statutes, as related to the development which is the
subject matter of this Declaration, together with all fixtures
and equipment intended for the mutual use, benefit and enjoyment
of the Unit Owners, and as set forth in the Recitals at the
beginning of this Declaration.
2.20 “Record” or "Recording" refers to the
records or recordings in the office of the County Recorder
of Maricopa County, Arizona.
2.21 "Servicer" means the person or entity
servicing a First Mortgage (including the First Mortgagee, if
applicable), its successors and assigns.
2.22 “Unit” means an Apartment Unit together with
the undivided percentage interest in and to the Common Elements
set forth in Part 4 below. Each Unit is and shall be designated
by the letter and number of the Apartment constituting part of
that Unit.
3. Submission_of Property - Declarant hereby submits
and subjects the Property to a horizontal property regime pursuant
to Sections 33-551 through 33-561, Arizona Revised Statutes, and
does hereby declare that all of the Units shall be owned, leased
sold and conveyed subject to the terms, conditions and other
provisions of this Declaration.
4. Horizontal Property Regime and Descriptions - The
entire Horizontal Property Regime shall be composed of one
hundred sixty-seven (167) Units lettered and numbered as shown
and described on the Plat and herein. The Units consist of an
Apartment Unit together with the following undivided percentage
interests in and to the Common Elements:
Unit No. Percentage Interest
A102, Al07, Al08, Al09, A110, A111
A112, A202, A207, AZOB, A209,
A2l0, A211, A2121
Unit No. Percentage Interest
B101, B107, B108, B109, B110,
B111, B112, B201, B207, B208,
B209, B210, B211, B212,
C102, C103, C104, C105, C202, C203,
C204, C302, C303, C304, C402, C403,
C404, C502, C505, C504,
D104, D105, D106, D107, D205,
D206, D207, D305, D306, D307,
D405, D406, D407, D505, D506,
D507,
E102, E103, E104, E105, E202, E203,
E204, E302, E303, E304,
E402, E403, E404, E502, E503,
E504, 00.47%
A101, A103, A104, A105, A106, A201,
A203, A204, A205, A206,
B102, B103, B104, B105, B106, B202,
B203, B204, B205, B206,
C106, C107, C205, C206, C207,
C305, C306, C307, C405, C406, C407,
C505,
D102, D103, D202, D203, D204, D205,
D302, D303, D304, D305, D402, D403,
D404, D405, D502, D503, D504, D505,
E106, E107, E206, E207, E306, E307,
E406, E407, E506, E507, 00.63%
C101, C108, C201, C208, C301,
C308, C401, C408, C501, C508,
D101, D108, D210, D208, D301,
D308, D401, D408, D501, D508,
E101, E108, E201, E208, D301,
E308, E401, E408, E501, E508, 00.97%
C506 01.18%
4.1 Description of Land - The land is described
on the first page of this Declaration.
4.2 Description of Cubic Content Space of the
Buildings - A description of the cubic content space of the
Buildings with reference to their location on the land is set
forth on the Plat. The upper boundary of each Building shall be
the plane of the top elevation of the Building, as shown on the
Plat, and the lower boundary shall be the plane of the base
elevation of the building, as shown on the Plat. The vertical
boundaries shall be the exterior or the outside walls of each
Building, except that where there are balconies and patios
extending beyond the exterior of the outside walls of any
Building, the vertical boundaries thereof shall be the plane of
the outer edge of the balconies and patios which extend outward
farthest from the exterior wall of the Buildings, all as shown on
the Plat.
4.3 Description of Cubic content Space of Each
Apartment - The cubic content space of each Apartment and of the
balcony or patio (if any) appurtenant to ownership thereof shall
consist of, and be measured by, the entire space between the
horizontal and vertical boundaries thereof, all as shown on A
the Plat.
4.4 Description of Common Elements - The descrip-
tion of the Common Elements is the description provided for in
paFagnaphe4.2 above, together with the description of the ~
land provided for on page l hereof, less the description provided
for in paragraph 4.3 above.
4.5 Exclusive Use - ~
A. Appurtenant to ownership of each Unit shall be
the exclusive right to use a carport located upon the Property.
All carports are shown on the Plat and designated by the letter
"C" and upon the initial conveyance of each Unit, the carport
appurtenant to ownership of that Unit shall be designated by the
Board and designated in the recorded instrument of conveyance.
Any reassignment of Carports may be made only with tne consent of
the Unit Owners thereby affected and their respective first _
mortgagees and must be evidenced by a written notice recorded in
the office of the Maricopa County Recorder.
B. Appurtenant to ownership of each Unit shall be
the exclusive right to use an area within the Common Elements of
adequate Lin the discretion of the Board) for the establishment _`
and maintenance of a mailbox, such areas to be as initially
designated by Declazant or as subsequently designated by the
Board.
5. Use and Occupancy Restrictions - The use and
occupancy of the Property shall be in conformity with all enforce-
able deed restrictions; zoning and other ordinances; rules and
regulations of all governmental agencies or bodies having jurisdic-
tion thereof, and, subject to the foregoing, shall be in accordance
with the following provisions so long as the Condominium Project
exists.
5.1 Occupancy - No part of the Property shall be
used for other than residential housing and the related purposes
for which the Property was designed. Each of the Apartment Units
shall be used as a residence and for no other purpose, and shall
be occupied only by a single family, its servants and guests.
No Apartment Unit may be divided, subdivided or combined into a
smaller or larger Apartment Unit than is shown on the Plat
without first amending this Declaration and the Plat.
5.2 Common Elements - Except for the rights of
exclusive use set forth herein, and subject to the rights of the
Association and the Board, each Owner shall have the right to -se
the Common Elements in common with all other Owners as more
particularly set forth in part 18, below. The use, maintenance
and operation of the Common Elements may not be obstructed,
damaged or unreasonably interfered with by any Owner or Occupant
5.3 Nuisances - No nuisances shall be allowed
upon the Property, nor any use or practice which is the source of
annoyance to Occupants or which interferes with the peaceful
possession and proper use of the Property by its Occupants. 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 Owner of a Unit shall
permit or suffer anything to be done or kept upon his Apartment
Unit or permit or suffer any use of his Apartment Unit or the
Common Elements which will increase the rate of insurance upon
the Property or any part thereof.
5.4 Lawful Use - no immoral, improper, offensive
or unlawful use shall be made of the Property nor any part there-
of; and all valid laws, zoning ordinances and regulations of
all governmental agencies and bodies having jurisdiction thereof
shall be observed. The responsibility of meeting the requirements
of governmental bodies which require maintenance, modification or
repair of the Property shall be the same (either the responsi-
bility of the Apartment Unit Owner or of the Association) as the
responsibility for the maintenance and repair of the particular
part of the Property affected.
5.5 Leasing - Only entire Apartment Units may be
rented, provided, (if the occupancy is pursuant to a written
lease, which lease requires the lessee to observe the terms of
this Declaration and any fai1ure’shall constitute a default
thereunder; (ii) the occupancy is only by the lessee and his
family, their servants and guests; and (iii) the lease term is
for a period of not less than thirty-one (31) days.
5.6 Pets - Only household pets may be kept within
pany Apartments; provided, however, the Board, in accordance with
paragraph 5.12 below, may limit or restrict the number and kinds
of pets which may be kept in an Apartment and otherwise regulate
pets, including prohibiting pets upon the Common Elements, or
parts thereof, and/or specifying certain areas for the walking of
pets.
5.7 Signs - No advertising or other signs,
including but not limited to "For Rent” or "For Sale" signs,
shall be erected, placed or permitted to remain on any Apartment
Unit or on the Property except as expressly approved by the
Board.
5.8 Business Activities - No business activities
shall be conducted in any Apartment Unit or on any portion of `
the Property; provided, however, the foregoing restrictions shall
not be construed so as to prohibit an Owner from (i) maintaining
his own personal professional library in his Apartment; (ii)
keeping his personal, business or professional records or
accounts in his Apartment; and (iii) handling his personal
business calls or correspondence from his Apartment.
5.9 Plantings, Fences, Screens, etc. - No shades,
awnings, aluminum screens or any other type of shade screening
that can be viewed or seen from the outside of the Property or
other Apartment Units shall be placed on or about a window or on
or about any Apartment Unit unless approved by the Board.
Further, no fences, hedges, walls or landscaping shall be placed
or maintained upon the Property or outside an Apartment except as
are initially installed by Declarant or which may be approved
from time to time by tue Board.
5.10 Declarant Exempt - Until all Units have been
sold and conveyed by the Declarant to ultimate purchaser (as
evidenced by recorded deeds on recorded Agreement for Sale), or
until December 31, 1985, whichever date is first, Declarant may
make such reasonable use of the unsold Apartment Units, the
Common Elemerts and any part of the Property as may facilitate
the completion of any contemplated improvements to the Property
and the sale of the Units. Declarant is expressly authorized,
and hereby reserves the rights to maintain construction facilities
and offices, sales offices, model Apartment Units, place signs
upon and about the Property and to have ingress and egress
therefrom all such facilities and over and across the Common
Elements. Neither the Owners nor the Association shall make any
use of the Property or take any action to interfere with the
completion of any improvements, remodeling or sale of the Units.
5.11 Common walls - Any wall which separates one
Apartment from another shall not be used by an Owner of the M
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 an Owner be permitted to penetrate any said
wall in excess of two (2) inches from the exterior of said wall.
5.12 Rules and Regulations - Reasonable rules and
regulations (consistent with the terms hereof) concerning the use
of the Property and all portions thereof and imposing reasonable
restrictions upon the Owners, Occupants and use of the Apartment
Units (including but not limited to the decoration or landscaping
of patios and balconies) may be made and amended from time to `
time by the Board. If the Owners of twenty percent (25%) object
in writing to any rule(s) or regu1ation(s) promulgated by the
Board, a special meeting of the Association shall be called and
such rule(s) or regulation(s) shall be ratified or rescinded upon
a majority vote of those present and voting at such special
meeting. Copies of the current rules, regulations and amendments
thereto shall be furnished by the Association to all Unit Owners
and Occupants of the Property upon request. Notwithstanding the
foregoing, until ninety percent (90%) of the Units have been
sold, as evidenced by recorded deeds on recorded Agreements of
Sale, the Declarant is authorized to promulgate and adopt the
Rules and regulations referred to above. Copies of such regula-
tions and amendments thereto shall be furnished by the Association
to all Unit Owners and Occupants upon request.
6. Easements - The following easements shall be
deemed and construed as valid, existing easements, as well as
covenants, running with the Condominium Property:
6.1 Utility Easements - Easements for utilities
are hereby reserved throughout the Condominium Property, as may
be required for utility services in order to adequately serve the
Condominium Project; provided, however, such easements through
an Apartment, patio on balcony shall be only in accordance with
the existing construction of the Buildings, or as remodeled by
Declarant, unless approved in writing by the Unit Owner affected.
6.2 Ingress and Egress - Easements for ingress
and egress are hereby reserved and created for pedestrian traffic
over, through and across sidewalks, paths, walks, stairways,
corridors and lanes as the same from time to time may exist upon
the Common Elements; and for vehicular traffic over, through and
across such portions of the Common Elements as from time to time
may be paved and intended for such purposes.
6.3 Easements in Parking Areas - Easements are
hereby reserved to the Owners of Units in the Condominium for
pedestrian and vehicular traffic over, through and across such
driveways and parking areas as from time to time may be paved
and/or intended for such purposes.
6.4 Encroachments - Each Apartment Unit and the
Common Elements shall be subject to an easement for encroachments
including but not limited to encroachments of walls, ceilings,
ledges, floors and roofs created by construction, settling and
overhangs as originally designed or constructed, or as created by
discrepancies between the Plat and the actual construction. If
any portion of the Common Elements shall actually encroach upon
any Apartment Unit, or if any Apartment Unit shall actually
encroach upon any portion of the Common Elements, or if any
Apartment Unit shall actually encroach upon another Apartment
Unit, as the Common Elements and the Apartment Units are shown
by the-Plat, a valid easement for any of said encroachments_and
for the maintenance thereof, so long as they stand, shall and
does exist. In the event that any Apartment Unit or structure is
repaired, altered or reconstructed, the Owners of the Units
agree that similar encroachments shall be permitted and that a
valid easement for said encroachments and for the maintenance
thereof shall exist. Owners and any other parties acquiring any
interest in the Property shall acquiesce and agree to the existence
of such easements by accepting a deed from any seller or by
acquiring any interest whatsoever in the Property.
7. Condemnation - Upon receipt of notice of intention
or notice of proceedings whereby all or any part of the Common
Elements or any Apartment Unit is to be taken by exercise of the
power of eminent domain, all Owners and First Mortgagees shall be
immediately notified thereof by the Association. If a portion of
the Common Elements should be taken by exercise of the power of
eminent domain, or should be transferred and conveyed to a
condemning authority in anticipation of such exercise, the
entire award made as compensation for such taking, including but
without limitation, any amount awarded as severance damages, or
the entire amount received and paid in anticipation of such
taking, after deducting therefrom, in each case, reasonable and
necessary costs and expenses, including, but without limitation,
attorneys' fees, appraiser's tees and court costs (which net
amount is hereinafter in this part 7 as the "Award") shall be
paid to the Association as Trustee for Owners and First Mortgagees.
If the portion of the Common Elements taken or conveyed shall not
be comprised of, or include, all or any part of a Building,
containing Apartments, then, as soon as practicable, the Board
shall cause the Award to be utilized for the purpose of repairing
and restoring the Property, including, if the Board deems it
necessary or desirable, the replacement of any improvements so
taken or conveyed; provided, however, all First Mortgagees then
of record with reference to Units shall be notified, in writing,
and if a majority (based on one vote for each First Mortgagee)
object to such repairing or restoring within ten (10) days after
written notice, then the Board may act only with the approval of
a majority of the First Mortgagees. If, the portion of the
Common Elements taken or conveyed is comprised of, or includes,
all, or any part, of a Building containing Apartments, the Board
shall call a special meeting of the members of the Association,
with notice to all First Mortgagees then of record with reference
to Units, to convene within thirty (30) days after its receipt of
the Award to determine whether and, if so, in what manner, the
applicable Building shall be restored, reconstituted or replaced.
If two-thirds of the Owners and two-thirds of the First Mortgagees
determine, at such special meeting, not to restore, reconstitute
or replace the applicable building and related improvements, the
Board shall utilize the Award to effect such minimum repairs
thereto as shall be necessary to comply with all applicable
requirements of law and shall divide the remainder of the Award
in as many shares as there are Units, such shares to be in the
same proportion as the Owners' respective undivided percentage
interests in the Common Elements, and such shares shall be
distributed to the Owners and First Mortgagees, as their interests
appear. If the Award should exceed the cost of repair and
restoration, any excess shall, as soon as practicable following
the completion thereof, be divided into shares and distributed in
the same manner as provided in the immediately preceding sentence
If the cost of repair and restoration shall exceed the amount of
the Award, a special assessment shall be levied against the
Owners to the extent necessary to make up such deficiency, such
assessment to be levied against the Owners in the same proportion
as their percentage interests in the common Elements. The
special assessment provided for herein shall be secured by the
lien provided for in part ll of this Declaration. Nothing herein
contained shall be deemed to impair or affect the priority of any
First Mortgage in or to any proceeds, as set forth in part 17,
below.
8. Maintenance, Repairs and Replacements - Respon-
sibility for the maintenance, repairs and replacements of the
Property shall 56 as follows:
8.1 Apartments - The Owner shall maintain, repair
and replace, or cause to be maintained, repaired and replaced,
subject to the terms hereof, all service equipment located within
an Apartment, including but not limited to dishwashers, refrig-
erators, ovens, stoves, hot water tanks and heaters, electrical
and plumbing fixtures, floor coverings such as tile, carpeting
and linoleum (but not the floor slab), interior surfaces such as
paint, wallpaper and other wall finishes. The interior of all
windows forming the boundary of the Apartment and the interior
and exterior of any arcadia or sliding glass doors shall be
washed, cleaned, maintained and repaired at the Owner‘s expense.
Doors to Apartments shall be maintained, repaired and replaced by
the Owner, but the exterior color and style of such doors shall
be in accordance with the rules and regulations of the Association
The Association shall maintain, repair and replace, at the
Association’s expense, all structural portions of the Building in
which each Apartment is located, including all portions thereof
that contribute to the support of the Building such as the
outside walls, floor and ceiling slabs, load bearing columns,
load-bearing walls, and all fixtures serving the Common Elements
or other Apartment Units, and all conduits, ducts. plumbing,
wiring and other facilities for the furnishing of the utility
services which serve part or parts of the Condominium Property
other than the Apartment Unit in which such facilities are
contained.
8.2 Balconies and Patios - Concrete slabs,
balcony slabs, and support therefor, and all fences and walls
surrounding patios and balconies shall be maintained and repaired
by the Association, but each Apartment Unit owner shall keep and
maintain such patios on balconies in a neat and clean condition.
8.3 Common Elements - The Association shall
maintain, repair and replace the Common Elements (including all
Carports and parking spaces) in a neat, proper and first-class
manner. In the discretion of the Association, and subject to
uniform, reasonable rules promulgated thereby, portions of the
Common Elements servicing or uniquely related to one Apartment
Unit may be delegated to or required of that Apartment Unit
Owner, and the interior, non-structural portion of any storage
areas shall be maintained by the person or persons entitled to
use thereof (as set forth in Subparagraph 10.7 below).
8.4 Negligence - If, due to the act or neglect of
an Owner, a member of his family, a household pet, a guest or
other authorized Occupant, or visitor or invitee of such Occupant
damage shall be caused to the Common Elements or to an Apartment
Unit owned by others, or maintenance, repairs or replacements
shall be required which would otherwise be at the Common Expense,
then such Owner shall pay for such damage and for such main-
tenance, repairs and replacements as may be determined by the
Board, to the extent not covered by the Association's insurance.
8.5 Prohibition - No Owner, Occupant or other
person shall paint or otherwise decorate or change the appearance
of any portion of the exterior or any Building, including balcony
railings and patio walls, without the prior written approval of
the Board, or in accordance with any rules and regulations
promulgated by the Board. _
8.6 Reporting - Each Owner or Occupant shall '
promptly report to the Association any defect or need for
repairs, the responsibility for remedying of which is that of the
Association.
8.7 Access - An authorized representative of the
Board or the manager or managing agent of the Condominium
Property, and all contractors and repairmen employed or engaged
by the Association or such manager, shall be entitled to reason-
able access to each of the Apartment Units as may be required in
connection with maintenance, repairs or replacements of or to the
Common Elements or any equipment, facilities or fixtures affecting
or serving other Apartment Units or the Common Elements.
8.8 Decorating - Each Owner, at his own expense,
shall furnish and be responsible for all of the decorating within
his own Apartment, including painting, wallpapering, washing,
cleaning, paneling, floor covering, draperies, window shades,
curtains, lamps and other furniture and interior decorating.
Subject to the provisions of this Declaration, each Owner shall
be entitled to the exclusive use of the interior surfaces of the
perimeter walls, floors and ceilings within his Apartment, and
such Owner shall maintain such surfaces in good condition at his
sole expense. Said maintenance shall be subject to such rules
and regulations of the Association as may be necessary for the
common good of the Condominium Property. Decorating of the ‘
Common Elements (other than interior surfaces within the Apartment
as above provided), and any redecorating of Apartment Units to
the extent made necessary by any damage to existing decorating of
such Apartment Units caused by maintenance, repair or replacement.
work on the Common Elements by the Association, shall be furnished
by the Association as part of the Common Expenses. Decorating of
balconies and patios shall be the responsibility of each Owner,
but shell be subject to the rules and regulations of the
Association.
9. Alterations, Additions and Improvements - Except
for original construction work undertaken by Declarant with
respect to any Apartment Unit or the Common Elements, there shall
be no substantial alterations, additions or improvements to the
Common Elements without the prior approval of the Owners of fifty
percent (50%) or more of the ownership of the Common Elements
given at a regular or special meeting of members of the Associa-
tion. The cost of such alterations, additions or improve-
ments to the Common Elements shall be paid by means of a special
assessment against the Owners, in the proportion of their respec-
tive undivided interests in and to the Common Elements. Any
Owner may make nonstructural additions, alterations and improve-
ments within his Apartment Unit without the prior written approval
of the Board, but such Owner shall be responsible for any damage
to other Apartment Units, the Common Elements or the Condominium
Property which results from any such alterations, additions
or improvements. Owners are hereby prohibited from making any
structural additions, alterations or improvements within an
Apartment Unit, <illegible> an architect or engineer, licensed in
Arizona, certifies that such addition, alteration or improvement
will not impair the structural integrity of the Building within
which such addition, alteration or improvement is to be made, and
further, such addition, alteration or improvement must also be
approved by the Board. The Owner shall be responsible for any
damage to other Apartments, the Common Elements or the Condominium
Property which result from any such additions, alterations or
improvements. Notwithstanding the foregoing, no addition, alter-
ation or improvement within an Apartment Unit, whether structural
or not, shall be made without the prior written approval of the
Board, if said addition, alteration or improvement is reasonably
visible from other portions of the Condominium Property or from
the surrounding neighborhood, and prior to granting such approval,
the Board must affirmatively find that the proposed addition,
alteration or improvement is aesthetically pleasing and in
harmony with the surrounding improvements and the Condominium
Property.
10. Association - The Association will be formed by
Declarant and shall fulfill its functions pursuant iv the pro-
visions of the Condominium Constituent Documents.
10.1 Definition, Powers, Membership - The
Association shall constitute the "council of co-owners" as that
term is defined in the Act, and shall serve as the governing body
for the Condominium Project, and without limiting its powers and
function, the Association shall provide for the maintenance,
repair, replacement, administration and operation of the Property,
the assessment of expenses, payment of losses, disposition of
hazard insurance proceeds, and other matters as provided in the
Act and the Condominium Constituent Documents. The Association
shall not be deemed to be conducting a business or any kind, and
all funds received by the Association shall be held and applied
by it in accordance with the provisions of the Condominium
Constituent Documents. Each Unit owner shall Le a member of the
Association so long as he shall be an Owner and such membership
shall automatically terminate when he ceases to be an Owner and
upon the transfer of his ownership interest, the new Owner
succeeding to such ownership interest shall likewise succeed to
such membership in the Association. Each Unit shall be allocated
one vote in the Association.
10.2 Board of Directors of Association - The
affairs of the Association shall be conducted by a Board of
Directors, who shall be selected in the manner herein stated and
as stated in the Articles of Incorporation. Up to December 31,
1985, or the date that ninety percent (90%) of the Units have
been conveyed by Declarant to ultimate purchasers thereof, as
evidenced by recorded deeds (or recorded Agreement of Sale),
whichever date is first in time, all members of the Board may be
designated by Declarant. The first meeting of the Members of the
Association shall be held not later than January 31, 1986, or the
date which is sixty (60) days after ninety percent (90%) of
the Units have been conveyed by Declarant as aforesaid, whichever
date is first to occur. Until the first meeting of the members
of the Association, Declarant shall have all rights, remedies and
privileges accorded to the Association and the Board. Nonethe-
less, Declarant may, prior to the time set forth above, relinquish
and/or delegate all or part of such rights and authority to the
Association, and Declarant shall have the right to do by written
notice delivered to the Board at any time. Except for individuals
designated by Declarant each director shall be an Owner or a
member of the immediate family of an Owner (or if an Owner is a
corporation, partnership or trust, a director may be an officer,
director, partner or benefrciary of such Owner). If a director
shall cease to meet such qualifications during his term, he will
thereupon cease to be a director and his place on the Board shall
be deemed vacant.
10.3 Indemnification - every director and every
officer of the Association shall be indemnified by the Association
against all expenses and liabilities, including attorney's 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 havino been a director or
officer of the Association, in accordance with the provisions of
the Articles of Incorporation. Bylaws and Arizona law. No
director or officer of the Association, nor the Association
itself, shall have any monetary liability for a failure of the
Association or the Board to act in accordance with the terms of
this Declaration unless such failure was due to the willful,
wanton or intentional acts of such director or officer.
10.4 Board’s Determination Binding - In the event
of any dispute or disagreement between any Owners relating to the
Property, or any question if interpretation or application of the
provisions of the Condominium Constituent Documents, the deter-
mination by the Board shall be final and binding on each and all
of the Owners. lf a decision cannot be reached by the Board upon
any matter submitted to or considered by the Board, it shall be
determined by the members of the Association.
10.5 Action by Owners - To the extent required by
the Act, or by this Declaration, all action required to be taken
by the Owners, acting as council of co-owners for the Property,
shall be taken by the members of the Association acting as such
council of co-owners. Any dispute as to any action or decision
required to be taken or made by the Owners which cannot be made
or resolved by a vote of the Owners shall be submitted and
settled in accordance with the rules and regulations then existing
for the American Arbitration Association in Maricopa County,
Arizona, and any decision made or rendered thereby shall be final
and binding upon all of the Owners and the council of co-owners.
10.6 Professional Management - Subject to the
terms hereof, the Association shall contract for and retain the
assistance of a professional management company to assist it in
operating the Condominium Project.
l0.7 Assocation Rights with Respect to Certain
Common Elements - In addition to the right and obligation of the
Association, acting through the Board, to assign carport spaces,
The board shall have and is hereby granted the right to assign to
Owners of Units the exclusive right to use storage spaces and
area located within the Common Element. No such assignment shall
be deemed or construed to give the assignee thereof any vested
or permanent right to the Board may re-assign any such storage
area or space at anytime and from time to time. Any recreational
rooms, clubhouses or other such areas shall be administered by
the Association, acting through the Board, and a reasonable
change for use thereof may be imposed and collected by the
Association. The Board shall have authority to permit persons
other than Owners to use recreational facilities which are part
of the Common Elements.
ll. Assessments - In accordance with and subject to
the Condominium Constituent Documents, the Association shall
levy, make and collect assessment against the Unit Owners so as
to provide for the payment of the Common Expenses.
ll.l Common Expenses - The total amount to be
assessed shall be the total of the Common Expenses which shall
include:
A. All expenses of administration of the Condo-
minium Project (including but not limited to legal, accounting
and management fees); water, electricity, gas and other utility
service (except telephone service for the Apartments) for the
Condominium Project (including the Apartment units), insurance
required hereunder and otherwise as determined by the Board,
costs of maintenance, operation, repair, replacement and better-
ment of the Common Elements (including but not limited to painting,
landscaping, repairs, replacements, alterations, additions,
reconstruction, services, supplies labor, materials, equipment
and other related items) and any valid charge against the
Condominium Project as a whole as determined by the Board of
Directors (including but not limited to all costs of enforcing
compliance with this Declaration, deficiencies due to non payment
by Unit Owners, ard such costs as are deemed necessary to meet
the purposes of the Association).
B. Amounts sufficient and adequate to establish
and maintain a reserve fund which reserve fund shall be adequate
to meet the costs and expenses of maintenance, repairs and
replacements of those Common Elements which must be maintained
repaired and replaced on a periodic basis The reserve fund
shall be funded and derived from regular assessments, payable in
regular installments, and not by means of a special assessment or
levy.
ll.2 Amount of Assessment - Each Unit and the
Owner thereof, subject to the terms hereof, shall be assessed an
amount of the common Expense equal to that Unit's percentage
ownership interest in the Common Elements. In addition thereto,
and by means of a special assessment:
A. If a Unit Owner fails to perform maintenance,
repairs and replacements which are his obligation, then, after
written notice from the Board to perform such maintenance,
repairs or replacements within a reasonable time limit as may
be set by the Board, the Board may perform such needed main-
tenance, repairs and replacements, and shall levy an assessment
against such Unit and the Owner thereof equal to the amount so
expended.
B. All costs incurred in the enforcement of
the provisions of this Declaration against any Unit Owner,
including but not limited to attorneys' fees and court costs
shall be assessed to the Unit and the Owner against whom enforce-
ment is sought.
11.3 Determination by Board - The total amount of
the regular assessment and each Unit Owner’s share thereof, as
set forth herein, shall be determined and established by the
Board at reasonable intervals "not less often than annually, and*~
in accordance with the terms of the Articles and Bylaws. Each
Unit Owner‘s share of the total assessment shall be paid in
monthly installments, and the Board or its designated represen-
tative shall notify the Owners of Units of that Unit's share
of the total assessment and the day of the month upon which
monthly installments are due and payable. In addition to the
special assessments set forth in subparagraphs 11.2 A and B
above, special assessments are hereby authorized in the event of
unanticipated costs or expenses, and any such special assessment
for unanticipated costs or expenses shall be charged to the Units
in the same proportion as regular assessments. Notwithstanding
the foregoing, any First Mortgagee shall have no obligation to
pay any assessments or installments thereof that accrued prior to
the time it became entitled to actual possession of or took title
to the Unit, whichever is first in time.
ll.4 Accounting - The Board of Directors, at all
times, shall keep, or cause to be kept, true and correct records
of account, in accordance with generally accepted accounting
principles, and shall have available for the inspection of
all voting Owners and First Mortgagees, at reasonable times, such
books which shall specify in reasonable detail all expenses
incurred and funds accumulated from assessments or otherwise.
11.5 Payment of Assessments and Lien Rights -
A. Each Unit Owner, for himself, his heirs,
successors, grantees and assigns, covenants that with respect to
assessments and charges determined during the period that he is
an Owner, he will remit these charges to the Association or the
party or parties as directed by the Board.
B. Assessments attributable to Units and/or
monthly installments thereof shall be paid on or before the dates
established by the Board, and all sums not so paid may bear
interest at the highest rate lawful for individuals to pay under
the laws of Arizona from the due date until paid, at the election
of the Board. In addition and to the maximum extent allowable
under law, the Board, by appropriate regulation, may impose a charge for
late payment. All payments on account shall be first applied to
late charges, if any, interest and then to the assessment
payment first due.
C. No Owner may exempt himself from paying
such assessments or charges by being a non-user of the General
Common Elements or by abandoning the Unit of which he is the
record Owner, or by otherwise avoiding such obligations.
D. Each assessment or any other charge made
on a Unit pursuant to the Condominium Constituent Documents shall
constitute a lien on such Unit to secure the payment of such
amounts, which lien and the right to foreclose the same shall be
in addition to and not in substitution of all the rights and
remedies which the Association and the Board may have in accord-
ance with the provisions of this Declaration or otherwise.
E. Each Owner by his acceptance of a deed to a
Unit, or otherwise acquiring ownership of a Unit, hereby expressly
vests in the Association or its agents the right and power to
bring all actions against such Owner personally for the collection
of all such assessments or charges as a debt, and to enforce the
lien securing same by all methods available for the enforcement
of such liens, including foreclosure by an action brought in the
name of the Association in the like manner as a mortgage of real
property, and/or as a mechanic's lien, and such Owner hereby
expressly grants to the Association a power of sale in connection
with said lien. The Association may make payments on any prior
liens including any mortgage or taxes on the Unit, and such
payments shall be added to the lien in favor of the Association.
The lien provided for in this paragraph shall be in favor of the
Association. The Association shall have the power to bid in any
foreclosure sale pursuant to such foreclosure, and to acquire and
hold, lease, mortgage and convey the Unit so purchased. The
Association may institute suit to recover a money judgment for
unpaid obligations of the Owner without being required to fore-
close its lien on the Unit involved and without waiving the lien
which secures such obligations. In any foreclosure proceeding
brought by or for the Association, the Owner shall be required to
pay a reasonable rental for the Unit, commencing as of the date
foreclosure proceedings are filed, and in such proceedings the
Association shall be entitled, subject only to the prior right of
the holder of a First Mortgage. to such rent, and to the appoint-
ment of a receiver to collect same.
F. Upon the initial purchase of a Unit the Association
shall require that the new Owner of the Unit deposit with the
Association, a security deposit equal to two (2) regular monthly
installments of assessments. The Association shall use these
funds as initial operating capital and reserves. No part thereof
shall be refunded unless a like amount is deposited by a subsequent
purchaser of that Unit. None of these amounts shall be deemed a
prepayment or advance payment of assessments.
G. The liens and rights set forth in this part and
elsewhere in this Declaration are subordinate to the lien of any
First Mortgage and are expressly subject to the provisions of
part 15, below. ,
12. Insurance - Insurance shall be carried by the
Association on the Condominium Property and shall be governed by
the following provisions:
12.1 Authority to Purchase - The Board shall
purchase and maintain certain insurance upon the Condominium c
Property, including but not limited to the insurance described in
paragraph 12.2, below, which insurance shall be purchased by the
Association for the benefit of the Association, the Unit Owners,
and the First Mortgagees, as their interests may appear. Pro-
visions shall be made for the issuance of certificates of endorse-
ment to the First Mortgagee of any First Mortgage. Such policies
and endorsements thereon, or copies thereof, shall be deposited
with the Association. No Unit Owner shall purchase or obtain any
insurance which may adversely affect the policy and coverage
obtained by the Association. The Board shall deliver a copy of
the policies, or by and through their agent advise the Unit
Owners of the coverage of said policies to determine which
particular items are included within the coverage so that the
Unit Owners may insure themselves as they see fit it certain
items are not insured by the Association Without limiting the
generality of the foregoing it shall be each Owner's response-
bility to provide for himself such additional owner‘s liability
insurance, theft or other insurance covering personal property
damage and loss, insurance which is not carried by the Associa-
tion as the Unit Owner desires.
12.2 Coverage - The Association shall maintain
and pay for policies of insurance as follows:
A. A multi peril type policy covering the
entire Condominium Project together with all improvements
thereto ano betterments thereof whether made by Apartment Unit
Owners or the Association, and which insurance shall provide,
a minimum, fire and extended coverage, and all other coverage in
kinds and amounts customarily acquired or required for projects
similar in construction, location and use, including but not
limited to vandalism and malicious mischief, in an amount not
less than one hundred percent (l00%) of the insurable value
(based upon replacement cost) To *he maximum extent feasible
such policy or policies shall include an Agreed Amount Endorse-
ment and an Inflation Guard Endorsement and shall protect against
sprinkler leakage, debris removal, cost of demolition and
windstorm and water damage
B. A comprehensive policy of public liability
insurance covering all of the Common Elements and public ways in
the Condominium Project in a minimum amount of at least One
Million Dollars ($l,000,000.00) per occurrence, for personal
injury and/or property damage Such insurance policy shall
contain-a “Severability of interest" endorsement which shall
preclude the insurer from denying the claim of a Unit Owner
because of the negligent acts of the Association and its agents
or other Unit Owners The scope of such coverage shall include
all other coverage in the kinds and amounts customarily acquired
or required for projects similar in construction, location and
use, including, to the maximum amount feasible, coverage against
liability for water damage, non-owned and hired vehicles and for
property of others
C. If there is a steam boiler in operation in
connection with the condominium Project, there must be in
force boiler explosion insurance evidenced by the standard form
of boiler and machinery insurance policy and providing, as
minimum coverage, Fifty Thousand Dollars ($50,000.00) per accident
per location.
D. If the Condominium Project is located in an
area identified by the Secretary of Housing and Urban Development
as an area having special flood hazards, a "blanket* policy of
flood insurance on the Condominium Project must be maintained in
the amount of the outstanding principal balances of the First
Mortgage loans on the Units comprising the Condominium Project
or the maximum limit of coverage available under the National
Flood Insurance Act of 1968, as amended, whichever is less. _
E. The Association shall obtain fidelity cover-
age against dishonest acts on the part of directors, managers,
trustees, employees or volunteers responsible for handling funds
belonging to or administered by the Association. The fidelity
bond or insurance must name the Association as the named insured #
and shall be written to provide protection which is in no event
less than one and one-half times the insured's estimated annual
operating expenses and reserves. in connection with such cover-
age an appropriate endorsement to the policy to cover any person
who serves without compensation shall be added if the policy
would not otherwise cover volunteers.
F. A workmen's compensation policy, if necessary
to meet the requirements of law.
G. Such other insurance as the Board shall
determine from time to time to be desirable.
12.3 Provisions Required - The insurance policies
purchased by the Association shall, to the extent possible,
contain the following provisions: _ _
A. The coverage afforded by such policies shall
not be brought into contribution or proration with any insurance
which may be purchased by Unit Owners or First Mortgagees.
B. The conduct of any one or more Unit Owners
shall not constitute grounds for avoiding liability on any such
policies.
~
C. There shall be no subrogation with respect to
the Association, its employees, Unit Owners and members of their
household and their families and employees, or the policy(ies)
should name said persons as additional insureds.
D. A "severability of interest' endorsement
shall be obtained which shall preclude the insurer from denying
the claim of an Owner because of negligent acts of the Association
or other Owners.
E. A Statement of the name of the insured shall
be included in all policies, in form and substance similar to the
following:
WINDSOR PLACE ASSOCIATION, INC,
for the use and benefit of the
individual owners, (designated
by name, if required).
F. A standard mortgagee clause which must be Mi?
endorsed to provide that any proceeds shall be paid to the
WINDSOR PLACE ASSOCIATION, INC, for the use and benefit of
First Mortgagees as their interest may appear, or which must be as
otherwise endorsed to fully protect the interest of First
Mortgagees, their successors and assigns.
G. For policies of hazard insurance, a standard .
mortgagee clause shall provide that the insurance carrier shall
notify the First Mortgagee named at least thirty (30) days in _
advance of the effective date of any reduction in or cancellation `
of the policy.
H. Any “no other insurance” clause shall exclude
insurance purchased by Unit Owners or First Mortgagees.
12.4 First Mortgagee Protection -
A. The Association shall notify each First
Mortgagee or Servicer of a mortgage, or any entity or person
designated by such First Mortgagee or Servicer, whenever:
(1) Damage to a Unit covered by a
First Mortgage exceeds $l,000.00; and/or
(2) Damage to the Common Elements and
related facilities exceeds $l0,000.00.
The Association shall provide a letter to each First Mortgagee
stating it will so notify such First Mortgagee.
B. Each hazard insurance policy shall be written
by a hazard insurance carrier which has a financing rating by
Best's Insurance Reports of Class VI or better, or if such rating
be discontinued, by a successor thereto or a similar such rating
service.
C. Each insurance carrier must be specifically
licensed or authorized by law to transact business within the`
State of Arizona.
D. Policies shall not be utilized where:
l. Under the terms of the carrier's charter,
bylaws or policy. contributions or assessments may be
made against the Unit Owner, First Mortgagee or any
entity cr person purchasing or guaranteeing any First
Mortgage; or
2. By the terms of the carrier‘s charter,
bylaws or policy, loss payments are contingent upon
action by the carrier‘s board of directors, policy-
holders, or members; or
3. The policy includes any limiting clauses
iotner than insurance condition) which could prevent
any Unit Owner or the First Mortgages, its successors
or assigns from collecting insurance proceeds.
E. The mortgagee clause of each insurance policy
shall be properly endorsed, and there must have been given
necessary notices of transfer, and any other action required to
be taken must be taken in order to fully protect, under the terms
of the policies and applicable law, the interest of all First
Mortgagees, their successors and assigns. where permissible, the
insurance carrier shall be required to name the Servicer of a
First Mortgage, or ”(name of servicer) or assigns‘, as First
Mortgagee under the Mortgage clause. If permissible, where a
deed of trust is utilized, the insurance carrier shall be required
to use '(name of Servicer), beneficiary' or ”(name of trustee)
for the benefit of (name of servicer)“ instead of only the name
of trustee under the deed of trust.
F. All insurance drafts, notices, policies,
invoices and all other similar documents, or their equivalent,
shall be delivered directly to each Servicer involved, regardless
of the manner in which the mortgagee clause is endorsed. The
Servicer's address on any First Mortgagee endorsement on a policy
shall be used in the endorsements in lieu of the address of the
First Mortgagee if requested by the First Mortgagee.
G. First Mortgagees may pay overdue premiums, or
may secure new insurance coverage on the lapse of a policy with
respect to any insurance required to be maintained by the Asso-
ciation as provided in this part, and First Mortgagees making
expenditures therefrom shall be owed immediate reimbursement ~
by the Association.
12.5 Premiums - Premiums upon insurance policies
purchased by the Association shall be paid by the Association as
a Common Expense, except that the amount of increase over any
annual or other premium occasioned by the use, misuse, occupancy
or abandonment of an Apartment Unit or its appurtenances, or of
the Common Elements by an Owner, shall be assessed against that
particular Owner.
12.6 Insurance Claims - Subject to the terms ~
hereof, the Association, acting by and through its Board, shall
fdjust all claims arising under insurance policies purchased by
the Association, and execute and deliver releases upon the
payment of claims.
13. Damage and Repair - If all or any part of the
Condominium Property or any property in which the Association
owns an interest is damaged or destroyed by fire or other hazard,
whether or not it shall be repaired or reconstructed, shall be
determined in the following manner: ~
13.1 Common Elements - If the damaged property is
part of the Common Elements or any property in which the Associa-
tion owns an interest, it shall be repaired or reconstructed,
unless it is determined in the manner hereinafter provided that
the Condominium shall be terminated.
13.2 Apartment Units - If the damaged property is
a Building or Buildings containing Apartment Units, the damage
shall be repaired and reconstructed if the Board finds that more
than ten percent (10%) of all <illegible> Apartment Units in the
Condominium Project are tenantable, unless within sixty (60) days
after the loss or damage, the Owners of Units having two-thirds
(2/3) of the ownership of the Common Elements and all of the
First Mortgagees decide to terminate the Condominium If the
damaged property is a Building or Buildings containing Apartment
Units, the damage shall not be repaired or reconstructed if the
Board finds that ten percent (l0%) or less, of all of the
Apartment Units are tenantable, and in such case the Condominium
shall be terminated as hereinafter provided, unless within sixty
(60) days of the loss or damage the Owners of Units owning
Fifty-one percent (51%) or more of the Common Elements and all of
the First Mortgagees agree in writing, to such repair or recon-
struction
13.3 Construction -
A. Any repair or reconstruction must be substan-
tially in accordance with the plans and specifications for the
original improvements. or if not, then according to plans and
specifications approved by the Board the Owners owning fifty-one
percent (51%) of the Common Elements, and all First Mortgagees
B. If the loss or damage is only to those
parts of an Apartment Unit or Apartment Units for which the
responsibility of maintenance and repair is that of the Apartment
Unit Owner, then the Apartment Unit Owner shall be responsible
for repair and reconstruction, provided however, to the extent
any insurance proceeds collected are attributable to the Apart-
ment Units and not the Common Elements) the share of the proceeds
attributable to the Apartment Units shall be used for repairs and
reconstruction of the apartment units.
C. Immediately after a determination is made to
repair or reconstruct damage to property for which the Association
has the responsibility for repair and reconstruction, the Asso-
ciation shall obtain reliable and detailed estimates of the cost
of the repair or reconstruction.
D. If the proceeds of insurance are not suffi-
cient to defray the estimated costs of reconstruction and repair
by the Association, assessments shall be made against the Apart-
ment Unit Owners, in the case of damage to Common Elements,
sufficient amounts to provide funds to pay the estimated costs.
Additional assessments may be made at any time during or following
the completion of construction. Such assessments against Apart-
ment Unit Owners for damage to Apartment Units shall be in
proportion to the cost of reconstruction and repair of their
respective Apartment Units. Such assessments on account of
dam ge to Common Elements shall be in proportion to the Owner‘s
percentage ownership in the Common Elements.
l3.4 Insurance Trustee; Proceeds -
A. Except for loss or damage which is less than
one percent (1%) of the value of the Condominium Project,
all insurance proceeds payable on account of damage or loss to
the Condominium Project shall be paid to any bank in Arizona
which is selected as a trustee by the Board, which bank is herein
referred to as the "Insurance Trustee". The Insurance Trustee
shall not be liable for payment of premiums, for the renewal or
the sufficiency of policies, or for the failure to collect any
insurance proceeds. Insurance proceeds payable on account of
loss or damage which equals less than one percent (1%) of the
value of the Condominium Project shall be payable to and D6 used
by the Association, as Trustee, to repair such loss or damage.
B. The duty of the Insurance Trustee shall
he to receive the insurance proceeds that are paid, and to hold
them in trust for the benefit of the Unit Owners and the First
Mortgagees as follows: An undivided share of such proceeds on
account of damage to Common Elements shall be allocated to the
Unit Owners according to their shares in the Common Elements set
forth in part 4, above. Proceeds, if any. on account of damage
to Apartment Units shall be held for the Owners of damaged
Apartment Units in proportion to the cost of repairing the
damages suffered by each Apartment Unit Owner, which cost shall
be determined by the Association. In the event a mortgagee
endorsement has been issued as to a Unit, the share of the Unit
Owner shall be held in trust for the First Mortgagee and the Unit
Owner-as their interests may appear.
l3.5 Manner of Disbursement - The proceeds from
assessments and insurance received by the Insurance Trustee shall
be disbursed in the following manner:
A. That portion of the insurance proceeds, if
any, representing damage, the reconstruction and repair of which
is the responsibility of the Apartment Unit Owner, shall be
paid by the Insurance Trustee to the Apartment Unit Owner or, it
there is a mortgagee endorsement, then to the Apartment Unit
Owner and the First Mortgagee jointly, who may use such proceeds
as they may determine; provided however, to the extent that any
damage to an Apartment Unit affects in any way the Common Elements
or any other'0wner’s Apartment Unit, the proceeds must be used
for reconstruction and repair of such damage.
B. The portion of insurance proceeds representing
damage, the reconstruction and repair of which is the responsi-
bility of the Association, shall be disbursed in payment of the
costs of such repair and reconstruction in the manner required by
the Board and upon approval of an architect qualified to practice
in Arizona and employed by the Association to supervise the
work.
C. The Insurance Trustee shall not be required
to determine whether a disbursement is to be made, the identity
of the payee, or the amount to be paid, but may rely upon a
certificate of the Board acting for and on behalf of the
Association stating such information.
13.6 Work - All repair a u constructirn work
shall be done by licensed contractors of good reputa*ion
Payment bonds, performance bonds and statutory lien bonds may
but need not, be required in the discretion of the Board but all
worn shall be done under written contracts
13.7 Termination - If it is determined in the
manner abovt provided that the Building or Buildings containing
Apartment Units shall not be repaired or reconstructed because
of damage or destruction, then and in such event, this Condominium
shall be terminated and all of the Owners and all of the mort-
gagees and lienholders of record of all of the Units hereby
constitute and appoint the Board and each of the members of the
Board, as their attorney in fact for the purpose of executing
acknowledging and recording a declaration withdrawing the Property
from this Horizontal Property Regime, which power is irrevocable
and coupled with an interest
14. Management Agreements - Each Unit Owner hereby
agrees to be bound by the terms and conditions of all management
agreements entered into by the Association acting through the
Board. A copy of all management agreements shall be available to
each Unit Owner. Any agreement for professional management of
the Condominium Project, or any other contract providing for
services of its Declarant at any other party, shall not exceed a
term of one (1) year, and any such agreement shall provide for
termination by either party with or without cause, without
payment of a termination fee, upon thirty (30) days' notice
15. Rights and Duties of First Mortgagees - Notwith-
standing and prevailing over any other provisions of this
Declaration, the Articles of Incorporation, Bylaws, or any rules,
regulations or management agreements, the following provisions
shall apply to and benefit each holder of a First Mortgage upon a
Unit:
15.1 Any right of first refusal that may be
contained in the Condominium Constituent Documents shall not
impair or affect the rights of a First Mortgagee to foreclose
or take title to a Unit pursuant to the remedies provided in the
First Mortgage, to accept a deed (or assignment) in lieu of
foreclosure in the event of default by a mortgagor, or interfere
with a subsequent sale or lease of a Unit so acquired by the
First Mortgagee.
15.2 Any First mortgagee or third party purchaser
at a foreclosure sale or trustee°s sale under a deed of trust who
obtains title to a Unit pursuant to the remedies provided in
the First Mortgage for foreclosure of the First Mortgage will not
be liable for such Unit's unpaid dues, charges or assessments a
which may accrue prior to the acquisition (including the expira-
tion of any period of redemption) of title to such Unit by the
First Mortgagee.
15.3 Unless all Of the First Mortgagees (based
upon one vote for each First Mortgage owned), and Owners of Units
having two thirds (2/3) of the ownership of the Common Elements)
or such higher percentage as required in this Declaration, or by
applicable law, have given their prior written approval, neither
the Association nor the Owners shall:
A. By act or omission, seek to abandon or
terminate this Declaration or the Condominium Project hereby
established (except as set forth in part 13, above).
B. Change the pro rata interest or obligation of
any individual Unit for the purpose of: (a) levying assessments
or charges or allocating distributions of hazard insurance
proceeds or condemnation awards; or (b) determining the pro rata
share of ownership of each Unit in the Common Elements except as
set forth in subparagraph 21,8 C. below).
C. Partition or subdivide any Apartment Unit
or Units (except as set forth in subparagraph 21.8 C. below).
D. By act or omission, seek to abandon, parti-
tion, subdivide, encumber, sell or transfer the Common Elements.
(The granting of easements for public utilities or for other
public purposes consistent with the intended use of the Common
Elements by the Condominium Project shall not be deemed a
transfer within the meaning of this clause.)
E. Use hazard insurance proceeds payable or paid
due to losses to any Condominium Property or portion thereof
(whether to Apartment Units or to Common Elements) for other than
the repair, replacement or reconstruction of such Condominium
Property, except as provided herein or by statute. First Mort-
gagees shall have the right to participate in the adjustment and
settlement of any claim under any insurance maintained by the
Association.
15.4 All taxes, assessments and charges which may
become liens prior to a First Mortgage under local law shall
relate only to the individual Unit and not to the Condominium
Project as a whole. .
15.5 No provision of the Condominium Constituent
Documents shall give a Unit Owner, or any other party, priority
over any rights of the First Mortgagee of the Units pursuant to
its First Mortgage in the case of a distribution to such Unit
Owner of insurance proceeds or condemnation awards for losses to
or a taking of Units and/or Common Elements.
15.6 All amenities pertaining to the Condominium
Project and located on the Property (such as parking, recreation
and service areas) are a part of the Condominium Project and
shall be covered by and subject to a mortgage on a Unit to the
same extent as are the Common Elements.
15.7 A First Mortgage, upon request, shall be
Entitled to written notification from the Association of any
default in the performance by the Unit mortgagor, on such First
Hortgagee°s mortgage, under the Condominium Constituent Documents
which is not cured within thirty (30) days.
15.8 First Mortgagees shall have the right upon
reasonable request to examine the books and records of the
Association or the Condominium Project at reasonable times,
15.9 A First Mortgagee shall not in any case or
manner be personally liable for the payment of any assessment or
charge, nor the observance or performance of any covenant,
restriction, regulation, rule, Association Articles of Incorpora-
tion or Bylaws, or management agreement, except for those matters
which are enforceable by injunctive or other equitable actions
not requiring the payment of money, except as otherwise provided
in this part 15.
15.10 An action to abate the breach of any of
these 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 such Unit
15.11 During the pendency of any proceedings to
foreclose a First Mortgage (including any period of redemption)
or from the time a trustee under a first deed of trust has given
notice of sale pursuant to power ot sale conferred under a deed
of trust and pursuant to law, the First Mortgagee, or a receiver
appointed in any such action, may but need not exercise any or
all of the rights and privileges of the Owner in default of.a
Unit including, but not limited to, the right to vote as a member
of the Association in the place and stead of the defaulting
Owner.
15.12 At such time as the First Mortgagee shall
become record Owner of a Unit, the First Mortgagee shall be
subject to all of the terms and conditions of this Declaration
including, but not limited to, the obligation to pay all assess-
ments and charges accruing thereafter, in the same manner as any
other Unit Owner.
15.13 The First Mortgagee, or any other party
acquiring title to a mortgaged Unit through foreclosure of the
First Mortgage or through any equivalent proceedings, such as,
but not limited to, the taking of a deed in lieu of foreclosure
or acquiring title at a trustee's sale under a first deed of
trust, shall acquire title 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 or equiva-~
lent proceedings, including the expiration day of any period of
redemption. Any such unpaid assessment against the Unit fore-
closed shall be deemed to be a Common Expense charged proratably
against all of the Units. Nevertheless, in the event the Unit
Owner against whom the original assessment was made is the
purchaser or redemptionor, the lien shall continue in effect and
the said lien may then be enforced by the Association, for the
respective Unit‘s assessment that was due prior to the final
conclusion of any such foreclosure or equivalent proceedings.
Further, any such unpaid assessment shall continue to exist as
the personal obligation of the defaulting Owner of the respective
Unit to the Association; and the Board may use reasonable efforts
to collect the same from said Owner even after he is no longer a
member of the Association.
l5.l4. The lien of the assessments provided for
herein shall be subordinate to the lien of any First Mortgage now
or hereafter placed upon any Units; ~
provided that such subordination shall apply only to the assess-
ments which have become due and payable prior to a sale or
transfer of such property pursuant to a decree of foreclosure or
any other proceeding in lieu of foreclosure.
l5.l5 Notwithstanding any provision in the
Condominium Constituent Documents to the contrary, no provision
of this Declaration or the Condominium Constituent Documents
related to costs, use, set-back, minimum size, building materials
architectural, aesthetic or similar matters shall provide for p
reversion or foreclosure of title to a Unit in the event of
violation thereof. No breach Or any violation of any provision
of the Condominium Constituent Documents shall affect, impair,
defeat or render invalid the interest or lien of any First
Mortgagee.
15.16 Notwithstanding and prevailing over
all other provisions hereof, no amendment to this Declaration
shall be made or become effective which in any way affects,
diminishes or impairs any of the rights, privileges or powers
granted to any First Mortgagee or which is in any way inconsistent
with the customary rules, regulations or requirements of institu-
tional First Mortgagees or their assigns without the prior
written consent of all First Mortgagees. First Mortgagees shall
have the right to enforce against Unit Owners, the Association
and all others, any and all provisions of this Declaration
including, without limitation, this part l5. Enforcement by
First Mortgagees may be by injunction, mandatory or prohibitory,
or any other lawful procedure. This Declaration shall be inter-
preted in conformity with all rules, regulations and requirements
of institutional mortgage holders applicable to conventional
mortgages on condominiums, in effect as of this date or as
hereafter amended, any provisions hereof which is inconsistent
therewith shall be deemed modified to conform thereto. The
Articles, Bylaws and all rules and regulations of the Association
shall be governed by this Declaration and all provisions thereof
which are inconsistent herewith shall be void.
16. Covenants Running with the Land - It is intended
and is hereby declared that the provisions of this Declaration
shall be covenants running with the land, and such provisions,
except as otherwise provided herein, shall apply to and be
binding, to the fullest extent permitted by law, on all successors
in interest to Declarant and shall benefit and be enforceable by
every person who now, or at any time hereafter, owns or holds an
interest in said Property. Declarant shall be deemed a benefi-
ciary of said provisions hereof and such provisions shall run in
favor of Declarant without regard to whether Declarant is or
remains an Owner of said Property or interest therein. As such
beneficiary. Declarant shall have the right, in the event of any
breach of any of said provisions hereto, to exercise all the
rights and remedies and to maintain any actions at law or suits
in equity or other proper proceedings to enforce the curing of
such breach of any of said provisions to which beneficiaries of
such agreement may be entitled. _ ~
17. Invalidity of Any Provisions - 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 condi-
tionally on their being held valid in law and, in the event that
one or more of the phrases. sentences, clauses, paragraphs or ~
sections contained herein should be invalid or should operate to
render this Declaration invalid, this Declaration szall 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.
18. Use of the Common Elements - Subject to the rights
of exclusive use and the rights and authority of the Association
each Owner shall have the right to use the Common Elements in
common with all other Owners as may be required for the purposes
of access and ingress and egress to, and use, occupancy and
enjoyment of, the respective Apartment Units owned by such Owner,
and for such other purposes as the Common Elements may reasonably
lend themselves and as may be prescribed by the Board. The right
of use of the Common Elements shall extend to each Owner and the
agents, servants, tenants, family members and invitees of each
Owner, subject to and governed by the provisions of this Declara-
tion and the other Condominium Constituent Documents.
19. Termination of Condominium/Shares of Owners
after Termination - This Horizontal Property Regime may be
terminated by the agreement of all the Owne.s and holders of
mortgages and encumbrances pursuant to the provisions of the Act,
or as herein provided. After termination of the Horizontal
Property Regime, the Unit Owners shall own the Condominium
Property and;all assets of the Association as tenants in common
in undivided shares, and their respective First Mortgagees and
lienors shall have First Mortgages and liens upon the respective
undivided shares of the Unit Owners Such undivided shares ot
the Owners shall be the same as the undivided shares in the
Common Elements appurtenant to the Owners' Apartment Units prior
to the termination
20. Violation of Declaration; Remedies - The following
provisions are in addition to and not in lieu of any other terms
and conditions contained in the Declaration relating to remedies.
20.l Summary Enforcement - Violation of any of
the restrictions or conditions, or breach of any of the covenants
or agreements contained herein or breach of any rules and regula-
tions promulgated by the Board shall enable the Association,
acting through the Board or an authorized agent, or an encumbrance
holder in the event that the Association refuses to act, to enter
a Apartment Unit, after reasonable written notice, as to which
said violation or breach may exist and summarily enforce such
restrictions, conditions, covenants, agreements, or rules and
regulations and to abate and remove the thing or condition which
may exist thereon contrary to the provisions hereof, at the sole
expense of the Owner of said Apartment unit, without being deemed
guilty of having trespassed in any manner.
20.2 Legal proceedings - In the event of any
default ty an Owner or Occupant under the provisions of the Act,
this Declaration, the articles, the Bylaws, or the rules and
regulations of the Association, the Association, its successors
or assigns, acting through the beard or an authorized agent,
shall have each and all of the rights and remedies which may
be provided for in the Act, this Declaration, the Articles, the
Bylaws or said rules and regulations, or which may be available
at law, and may prosecute any action or other proceedings against
such defaulting Owner and/or Occupant for enforcement or for
any other remedy, including but not limited to foreclosure of its
lien and the appointment of a receiver for the Unit, without
notice, without regard to the value of such Unit or the solvency
of such Owner, or for damages or injunction, or specific perform-
ance, or for judgment for payment of money and collection thereof,
or the right to take possession of the Unit and to rent the Unit
and apply the rent received to payment of unpaid assessments,
late charges, if any, and interest accruing thereon, and to sell
the same as provided herein, or for any combination of remedies
or for any other relief. Nothing contained in this Declaration
shall preclude the Association, its agents, the Board, Declarant,
an aggrieved Owner, a First Mortgages or other person having an
interest in the Property from exercising any available remedy at
law or in equity. The proceeds of any judicial sale foreclosing
the lien of the Association shall first be paid to discharge
court costs, other litigation costs including but without limita-
tion reasonable attorneys' fees and all other expenses of the
proceeding and sale, and all such items shall be taxed against
the defaulting Owner in a final judgment. Any balance of pro-
ceeds, after satisfaction of all charges, unpaid assessments,
interest, late charges, and other liens, shall be paid to the
owner. Upon the confirmation of the sale, the purchasers there-
upon shall be entitled to a deed to the Unit and to immediate
possession of the Unit and may apply to the court for a writ of
restitution for the purpose of acquiring such possession, and it
shall be a condition of any such sale, and the judgment shall so
provide, that the purchaser shall take the interest in the
property sold subject to this Declaration. All expenses of
the Association in connection with any action or proceedings,
including court costs and reasonable attorneys' fees and other
fees and expenses and all damages, liquidated or otherwise,
together with interest thereon at the highest rate which may be
charged individuals under law shall be charged to and assessed
against such defaulting Owner, and shall be added to and deemed
part of his respective share of the Common Expenses, and shall be
a lien upon the Unit of such defaulting Owner and upon all of his
additions and improvements thereto The Association, acting
through the Board or its authorized agent, siall have the
authority to correct any default and to do whatever may be
necessary for such purpose and all expenses in connection there
with shall be charged to and assessed against such defaulting
Owner, and such assessment shall constitute a lien against the
defaulting Owner's Unit.'-Any and all such rights and remedies
may be exercised at any time and from time to time, cumulatively
or otherwise. The liens provided for herein shall be and are
junior and subordinate to First Mortgages, and shall be foreclosed
in the same manner as a realty mortgage and/or a mechanic‘s lien
in the State of Arizona.
20.3~ Miscellaneous - If any Owner (either by his
conduct or by tne conduct of any Occupant of his Apartment Unit)
shall violate any of the provisions of this Declaration, or the
provisions of the other Condominium Constituent Documents, as
then in effect, and such violation shall continue for fifteen
(15) days after notice in writing, or shall occur repeatedly
during any fifteen-day period after written notice or request to
cure such violation, then the Association, acting through the
Board, or any authorized agent, or any other Owner, or an encum-
brance holder, shall have the power to file an action against the
defaulting Owner for a judgment or injunction against the Owner
or Occupant requiring the defaulting Owner and Occupant to comply
with the provisions of this Declaration, the Articles, or the
Bylaws or the rules and regulations, and granting other appro-
priate relief including money damages, reasonable attorneys'
fees, and court costs. Anything to the contrary notwithstanding,
any breach of any of the covenants, restrictions, reservations,
conditions and servitudes provided for in this Declaration shall
not defeat or adversely affect the lien of any First Mortgage
upon any Unit, but except as herein specifically provided, each
and all of said covenants, restrictions, reservations, conditions
and servitudes shall be binding upon and effective against any
lessee or Owner of a Unit whose title thereto is acquired by
foreclosure, trustee’s sale, deed in lieu of foreclosure or
otherwise from such First Mortgagee.
21. Miscellaneous - _
21.1 Formation of Association and Additional
Rights of Declarant - The Declarant shall cause the Association
to be formed no later than the date the first Unit is conveyed to
an ultimate purchaser. Regardless of whether or not the Associa-
tion has been formed, and notwithstanding any other provision
hereof, until the date upon which ninety percent (90%) of the
Units have been sold and conveyed as evidenced by recorded deeds
(or recorded agreements of sale), in addition to, and not in
derogation of, all other rights and remedies of Declarant, (i)
Declarant shall have and may exercise all of the rights and
remedies of the Association and the Board; (ii) Declarant shall
not be obligated or required to pay assessments or charges on ;
account of ownership of Units, and Units owned by declarant shall
not be subject to any lien or assessment provided for herein; and
(iii) Declarant may impose and collect the assessments and
charges provided for herein upon a uniform basis for Units not
owned by Declarant. From and after the date the Association is
formed and assessments imposed, Declarant need only pay that
portion of the Common Expenses actually expended, but need not
pay any part representing provision for reserves or improvements.
21.2 Notices - All notices, requests, demands or
other communications to or upon the persons referred to herein a
shall be deemed to have been given or made when deposited in the
mails properly addressed, postage prepaid, or in the case of
telegraphic notice, when delivered to the telegraph company No
other method of giving notice is hereby precluded.
21.3_No_Waiver;~Remedies Cumulative - No failure
or delay on the part o any person n exercising any right, power
or privilege hereunder and no course of dealing between or among
the persons subject hereto, shall operate as a waiver of any
provision hereof; nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further
exercise thereof nor the exercise of any other right, power or
privilege. The rights and remedies-herein expressly provided are
cumulative and not exclusive of any rights or remedies which any
person subject hereto would otherwise have. No notice to or
demand on any person in any case shall entitle such person to any
other or further notice or demand in similar or other circum-
stances or constitute a waiver of rights to any other or further
action in any circumstances. ~
21.4 Judicial Proceedings - All Owners agree that
any matter arising under this Declaration may be finally adjudged
or determined in any court or courts of the State of Arizona or
of the United States of America having jurisdiction in the State
of Arizona, and such Owners hereby submit generally and uncondi-
tionally to the jurisdiction of such courts and of any of them in
respect to any such matter; provided, however, as to those
matters to be submitted to arbitration pursuant to any provision
hereof, such arbitration provisions shall be controlling and
prevail. For the purposes of instituting or defending any action
with respect to the Common Elements, or with respect to any
matter affecting the Owners with regard to the Common Elements,
and further in connection with enforcing this Declaration, the
Articles, the Bylaws and any rules and regulations adopted
pursuant to this Declaration, the Articles or the Bylaws, or in
any other instance where the Board or the members of the Associa-
tion deem it is necessary for the best interests of the Condo-
minium as a whole, the Association shall be deemed the Real Party
in interest and is hereby authorized to commence and prosecute
any such proceedings or to defend any such action.
21.5 Interpretation - If there is any conflict
among or between the Condominium Constituent Documents, the
provisions of this Declaration shall prevail; thereafter, priority
shall be given first to the Articles, then to the Bylaws and then
to the rules and regulations of the Association. The Condominium
Constituent Documents shall be construed in accordance with and
be governed by the laws of the State of Arizona.
21.6 Descriptive Headings - The descriptive
headings of the severa sections of this instrument are inserted
for convenience only and shall not be deemed to affect the
meaning of construction of any of the provisions hereof
21.7 Binding Effect - Subject to the provisions
contained herein, this instrument shall be binding upon and inure
to the benefit of successors, assigns, purchasers, mortgagees,
trustees and beneficiaries of deeds of trust, encumbrancers,
grantees, donees and lienors of and from Declarant and upon and
unto their respective successors, assigns, purchasers, mortgagees,
trustees and beneficiaries of deeds of trust, encumbrancers
grantees, donees and lienors.
21.8 Amendments or Supplements to Declaration
A. Except as otherwise permitted or restricted
in this Declaration, the provisions hereof may be changed,
modified or rescinded by an instrument in writing, setting forth
such change, modification or rescission signed and acknowledged
by Owners owning not less than seventy-five percent (75%) of the
ownership of the Common Elements; provided, however, that all
First Mortgagees under First Mortgages then covering Units shall
have consented, in writing, to each such change, modification or
rescission.
B. Notwithstanding anything contained to the
contrary or otherwise, no amendment of this Declaration shall be
made or effective which amendment changes, alters or otherwise
impairs any of the rights, privileges or powers granted to
Declarant, or to any First Mortgagee without the prior written
consent of Declarant and the holders of all First Mortgages.
C. So long as Declarant is the Owner of Unit
C-506, Declarant shall have the right to divide that Apartment
into two substantially equal Apartments (each Apartment to have
one balcony), and the appurtenant undivided interest in the
Common Elements shall be equally divided between the two new
Apartments. Such Amendment shall be executed and recorded by
Declarant; the Plat amended to show the actual configuration of
the division; and both such amendments shall be approved in
writing by the holder of any First mortgage affecting that Unit
C-506. Unless such amendments dividing such Unit C-506 are
recorded prior to July 15, 1981, the right to divide such Unit
in accordance herewith shall terminate.
D. Declarant shall have the authority without
joinder or consent of any other party, to make any non-material
amendment of this Declaration or the Plat if necessary to correct
any mistakes or errors of a clerical nature resulting from
tyopgraphical or similar errors.
IN WITNESS WHEREOF, Declarant has executed this
Declaration as of the 25th day of January, 1980.
COAM, INC., a California
corporation
By _____________________________________________
Its President
