Following is an Unofficial copy of the HOA CC&Rs. Legal version with signatures reside with the HOA Board in the Manager’s Office.

AMENDED AND RESTATED DECLARATION OFCOVENANTS, CONDITIONS, AND RESTRICTIONS OF THE VILLAGE AT APACHE WELLS

THIS AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS OF THE VILLAGE AT APACHE WELLS is made this 30th day of January, 2006 by THE VILLAGE AT APACHE WELLS HOMEOWNERS ASSOCIATION, INC., an Arizona corporation (“Association”), acting with the consent and approval of those persons or entities representing not less than fifty one percent (51%) of the Owners of the Units.

W I T N E S S E T H:

WHEREAS, The First Restatement of the Village at Apache Wells Declaration of Horizontal Property Regime and of Covenants, Conditions and Restrictions recorded September 15, 1983 at Instrument No. 83-373582 and re-recorded on October 11, 2005 at Instrument No. 83-409812 (collectively “Original Declaration”) placed various covenants, conditions and restrictions on certain property located in Maricopa County, Arizona.
WHEREAS, in accordance with the annexation provisions of the Original Declaration, additional property was annexed into the Original Declaration by the Declaration of Annexation recorded July 31, 1987 at Instrument No. 87-488093, and by the Declaration of Annexation recorded on October 25, 1990 at Instrument No. 90-478490, and by the Annexation and Consolidation Agreement recorded on January 28, 1992 at Instrument No. 92-044725 and rerecorded on February 14, 1992 at Instrument No. 92-078266. 
WHEREAS, the foregoing property is subject to the Original Declaration and is legally described as follows (“Real Property”):
Units 1 through 24 inclusive, TRACT “A”, and the “Common Area”, THE VILLAGE AT APACHE WELLS according to the plat thereof recorded March 16, 1983 at Book 250 of Maps, page 31, and amended by plat recorded April 24, 1985, in Book 281 of Maps, page 40, official records of the Maricopa County Recorder, Arizona; 
Units 1025 through 1044 inclusive, Units 2029 through 2044 inclusive, Units 3029 through 3036 inclusive, TRACTS “F” and “G”, and the “Common Area”, THE VILLAGE AT APACHE WELLS PHASE TWO according to the plat thereof recorded March 16, 1983, at Book 250 of Maps, page 31, and amended by plat recorded on August 22, 1983 at Book 256 of Maps, page 15, and amended by plat recorded April 24, 1985 at Book 281 of Maps, page 41, official records of the Maricopa County Recorder, Arizona;
Units 1001 through 1024 inclusive, Units 2001 through 2024 inclusive, Units 3009 through 3016 inclusive, TRACTS “B”, “C”, “D”, “E”, “H” and “I”, and the “Common Area”, THE VILLAGE AT APACHE WELLS PHASE THREE according to the plat thereof recorded March 16, 1983, at Book 250 of Maps, page 31, and amended by plat recorded May 3, 1985 at Book 282 of Maps, page 6, and amended by plat recorded December 9, 1986 at Book 305 of Maps, page 45, official records of the Maricopa County Recorder, Arizona; 
Units 25 through 70 inclusive, TRACTS “J” and “K”, and the “Common Area”, THE VILLAGE AT APACHE WELLS PHASE FOUR according to the plat thereof recorded March 16, 1983, at Book 250 of Maps, page 31, and amended by plat recorded January 30, 1992 at Book 348 of Maps, page 3, official records of the Maricopa County Recorder, Arizona.
Said Property formerly described as:
TRACT “K” of Apache Wells Mobile Park Unit Four, according to the plat recorded in Book 116 of Maps, Page 48, Records of Maricopa County, Arizona.

WHEREAS, the Original Declaration was amended by the First Amendment to the First Restatement of the Village at Apache Wells Declaration of Horizontal Property Regime and of Covenants, Conditions and Restrictions recorded on February 26, 2003 at Instrument No. 2003-0227796. The Original Declaration was further amended by the Second Amendment to the First Restatement of The Village at Apache Wells Declaration of Horizontal Property Regime and of Covenants, Conditions and Restrictions recorded on March 28, 2003 at Instrument No. 2003-381562. The Original Declaration, as amended by the above-referenced amendments and annexations, and as amended by this Amended and Restated Declaration, shall be referred to herein as the “Declaration”. 
WHEREAS, the Declaration provides that it may be amended by written assent of Owners representing fifty-one percent (51%) of the Units in the Condominium Project.
WHEREAS, it is declared that these covenants, conditions and restrictions are intended to benefit the owners and their successors of all or any portion of the Real Property;
WHEREAS, the Association and the referenced Owners of Units desire to amend and restate the Declaration in its entirety for the purpose of (i) incorporating prior amendments and providing for new changes to keep pace with current statutes and case law, (ii) clarifying and affirming that the Association has jurisdiction over all the Real Property at Village at Apache Wells and that the same is to be governed, assessed, operated and managed by the Association in accordance with the terms of this Amended and Restated Declaration (and other community documents), (iii) making those changes necessary to reflect the fact that the developer is no longer affiliated with The Village at Apache Wells, and (iv) to eliminate any ambiguity or confusion which exists or may be claimed to exist regarding the existing Declaration and any amendments thereto.
WHEREAS, the Real Property is to be held, conveyed, encumbered, leased, used and improved subject to the following restrictions, covenants, conditions, easements and equitable servitudes, all of which shall run with the land, shall be binding upon all persons having or acquiring any right, title or interest in the Real Property or any part thereof, shall inure to the benefit of each owner of any portion of the Real Property or any interest therein, shall inure to the benefit of and be binding upon each successor in interest, and may be enforced as hereinafter provided.
NOW, THEREFORE, the Declaration is amended and restated in its entirety to read as follows:

ARTICLE I

Definitions

The terms defined in this Article of this Declaration shall have the meanings herein specified, except as may be expressly otherwise provided herein.
Section 1.1. "Act" shall mean Sections 33-1201 through 33-1270, inclusive, Arizona Revised Statutes, as and if amended.
Section 1.2. "Apartment" shall mean a separate freehold estate designated by a number on the Plat, consisting of an airspace defined as follows:

1. The lower horizontal boundary is the surface of the interior unfinished floor thereof.
2. The upper horizontal boundary is a plane, the elevation of which coincides with the elevation of the surface of the interior unfinished ceilings thereof.
3. The lateral boundaries are the interior surfaces of the perimeter walls, windows and doors thereof and the vertical planes coincidental with the interior surfaces of the perimeter walls thereof, extended upwards to intersect the upper horizontal boundary, and extended downwards to intersect the lower horizontal boundary.
4. Each Apartment includes the surfaces so described, and the portions of the Building and Improvements lying within said boundaries; provided, however, that no structural components 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 a part of any system serving one or more other Apartments or the Common Elements shall be deemed to be part of an Apartment. Each such Apartment may also include the range, dishwasher, garbage disposal unit, refrigerator, and/or other household appliances lying within said boundaries and/or appurtenant areas.
5. The airspaces for patios and/or balconies, heating and air conditioning units and storage lockers where so designated on the Plat by number are to be considered common elements for the exclusive use of the Apartment and are to be maintained by each respective Apartment Owner.

Unless otherwise indicated, all airspace boundary lines intersect at right angles

 

Section 1.3. "Articles of Incorporation" or "Articles" shall mean the Articles of Incorporation of the Association, as and if amended.
Section 1.4. "Assessment" shall mean all assessments authorized and provided by Article VII. "Regular Assessments" shall mean the Assessments pursuant to Section 7.3.A., and "Special Assessments" shall mean the Assessments pursuant to Section 7.3.B.
Section 1.5. "Association" and "Council of Co-Owners" shall mean and refer to The Village at Apache Wells Homeowners' Association, Inc., an Arizona non-profit corporation, its successors and assigns.
Section 1.6. "Board of Directors” or "Board" shall mean the Board of Directors of the Association.
Section 1.7. "Building" shall mean any one of the principal structures, as shown on the Plat, erected upon the Real Property.
Section 1.8. "Bylaws" shall mean the Bylaws of the Association, as and if amended.
Section 1.9. "Common Elements" shall mean the description of the Real Property less the description of all Apartments as defined in Section 1.2 hereof including, but not limited to, all recreational facilities including equipment, stairwells, walks and walkways, parking areas, community and commercial facilities, if any, trees, exterior lighting, pavements, streets, pipes, wires, general heating and cooling system, exterior general garbage area, central patios, storage and laundry areas, boiler room, swimming pool(s), ducts and duct work, conduits and other public utility lines, and all other property controlled and regulated by the Association for the common use and enjoyment of the Members of the Association.
Section 1.10. "Common Element Interest" shall mean the undivided one/one hundred seventieth (1/170) interest in and to the Common Elements, which shall be appurtenant to each Apartment and included within ownership of each Unit subject to adjustment in accordance with Section 2.1.
Section 1.11. "Common Expenses" shall have the meaning provided in Section 7.2.
Section 1.12. "Condominium Constituent Documents" shall mean the Declaration, the Articles, Bylaws, and Rules and Regulations of the Association, and all other documents or instruments pertaining to and affecting the Condominium Project. Any discrepancies or conflicts between the provisions of the Arizona Revised Statutes or applicable law and this Declaration, the Articles and Bylaws and the rules and regulations of the Association shall, unless otherwise provided, be resolved by giving priority first to the Arizona Revised Statutes or applicable law, second to this Declaration, third to the Articles, fourth to the Bylaws, and fifth to the Rules and Regulations.
Section 1.13. “Condominium Property” or “Property” shall mean the Real Property and Improvements, and the appurtenances, easements and rights appurtenant thereto.
Section 1.14. "Declarant" shall mean and refer to The Village Partnership, a Texas general partnership, its successors and assigns.
Section 1.15. "Declaration" shall mean the Original Declaration, as previously amended and as amended by this Amended and Restated Declaration as further set forth above.
Section 1.16. "First Mortgage" shall mean a first deed of trust, as well as a first mortgage, on a Unit or any portion thereof. "First Mortgagee" shall mean the Mortgagee or holder of a First Mortgage, including a beneficiary or trustee under a first deed of trust, its successors and assigns.
Section 1.17. "Improvements" shall mean all physical structures including, but not limited to, the Buildings, private drives, parking areas, fences, walls, swimming pool, and all landscaping including, but not limited to, hedges, plantings, trees and shrubs of every type and kind, now or hereafter located upon the Real Property.
Section 1.18. "Member" shall mean any person, corporation, partnership, or other legal entity who is a Member of the Association as provided in Article IV. "Membership" shall mean the participating interest of a Member in the Association.
Section 1.19. "Mortgage" shall refer to a mortgage as well as a deed of trust and any reference to rights and/or remedies under a Mortgage shall also mean rights and/or remedies under a deed of trust including, but not limited to, trustee's sale and foreclosure. "Mortgagee" shall mean the mortgagee, holder or beneficiary (or trustee) under a Mortgage or deed of trust, as the case may be, and "Mortgagor" shall mean a mortgagor or trustor, as the case may be, under a Mortgage. "Governmental Mortgagee" shall mean the Federal National Mortgage Association ("FNMA"), Federal Home Loan Mortgage Corporation ("FHLMC"), Government National Mortgage Association ("GNMA") or other governmental agency or entity which is a Mortgagee or purchaser and/or assignee of a Mortgage. "Institutional Holder" shall mean a mortgagee which is a bank or savings and loan association or established mortgage company, or other entity chartered under federal and state laws, any corporation or insurance company, or any federal or state agency.
Section 1.20. "Owner(s)" shall mean and refer to the record owner, whether one or more persons or entities, of equitable or beneficial title, or legal title if same has merged, of a Unit regardless of whether such holder actually resides in the Unit. "Owner" shall include the purchaser of a Unit under an executory contract for the sale of property. "Owner" shall not include persons or entities who hold an interest in any Unit solely as a security for the performance of an obligation.
Section 1.21. "Person" means a natural individual, corporation, partnership, trustee or other legal entity capable of holding title to real property.
Section 1.22. "Plat" shall mean all collective plats of survey of the Condominium Property and all Apartments which collectively constitute the Real Property as more fully set forth above, and as recorded in the Maricopa County Recorder's Office in Book 250 of Maps, page 31, including all amendments thereto. Such recorded Plat and all amendments thereto are by this reference incorporated herein.
Section 1.23. "Rules and Regulations" shall mean such rules and regulations as shall be adopted and/or amended from time to time by the Association for the Condominium Project.
Section 1.24. "Servicer" shall mean the person or entity servicing a Mortgage, including a Mortgagee, if applicable, its successors and assigns.
Section 1.25. "Unit" shall mean an Apartment together with its appurtenant Common Element Interest, and the right to exclusive use of those items set forth in paragraph 1.2 E above.

ARTICLE II

Description of Condominium Property

Section 2.1. The Condominium Property shall be composed of the Common Elements and One Hundred and Seventy (170) Apartments as designated on the Plat(s). Each Unit shall consist of an Apartment and its appurtenant Common Element Interests. 
Section 2.2. The Condominium Project shall be referred to as The Village at Apache Wells.
Section 2.3. Descriptions of the Condominium Project.

A. Description of Land:  The land is the Real Property.
B. Description of Cubic Content Space of Buildings:  The cubic content space of the Buildings with reference to their location on the Real Property is described on the Plat. The boundaries of each Building shall be the exterior of the outside walls of said Building, except that where there are patios and balconies extending beyond the exterior of the outside walls, the boundaries of each Building shall be the plane of the outer edge of the walls or the plane of the boundary lines shown on the Plat for said patios and balconies which extend outward farthest from the exterior wall of said Building, all as shown on the Plat. The upper boundaries of each Building shall be the plane of the top elevation of said Building, except that where there are patios and balconies, the upper boundaries with respect to the patio and balcony portions of the Buildings shall be the plane of the top elevation of said patios and balconies, respectively, all as shown on the Plat. The lower boundaries of each Building shall be the plane of the floor sub-base elevation of said Building, except that where there are patios and balconies the lower boundaries with respect to the patio and balcony portions of the Building shall be the base elevation of said patios and balconies, all as shown on the Plat.
C. Description of Cubic Content Space of Each Apartment:  The cubic content space of each Apartment, as defined in Section 1.2, is as described on the Plat.
D. Description of Common Elements:  The description of the Common Elements shall be as provided in Section 1.9.
E. Interest Which Each Apartment Bears to the Entire Condominium Project:  Each Apartment shall bear an interest in the entire Condominium Project equal to a fraction which shall be the number one (1) over one hundred and seventy (170).

ARTICLE III

Homeowner's Association

Section 3.1. The operation of the Condominium Project shall be by the Association, a non-profit corporation organized under the laws of the State of Arizona, which shall fulfill its obligations pursuant to the provisions of the Act and the Condominium Constituent Documents. The Association shall not be deemed to be conducting a business of any kind, and all funds received by the Association shall be held and applied by it for the benefit of the Owners in accordance with the provisions of the Act and the Condominium Constituent Documents. 
Section 3.2. Articles of Incorporation for the Association shall be prepared and executed and the Association incorporated prior to the initial sale of any Unit. Upon being incorporated, the Association shall promptly take all necessary steps to conclude its formation and to commence the discharge of its duties under this Declaration and the Articles including, but not limited to, the adoption of Bylaws and Rules and Regulations.
Section 3.3. Each and every Owner, in accepting a deed, entering into an agreement for sale, or displaying some other evidence of ownership interest in a Unit, agrees to become a Member of the Association and to be bound by the provisions of the Condominium Constituent Documents.
Section 3.4. The Association shall from time to time establish such Rules and Regulations as it deems necessary for the conduct and operation of the Condominium Project including, by way of illustration and not by way of limitation, rules and regulations for the purpose of establishing and maintaining general beautification features within the Condominium Project, providing for the health, safety and welfare of occupants of and visitors to the Condominium Project, and establishing such common community services as the Association shall deem desirable for the general use and benefit of occupants of the Condominium Project. 
Section 3.5. The Association shall serve as a governing body for all Owners and occupants of Units and shall provide necessary and appropriate action for the maintenance, repair, replacement and management of the Common Elements, assessment of expenses, payment of losses, disposition of insurance proceeds, and other matters as provided in the Act and the Condominium Constituent Documents; provided, however, that the foregoing shall not operate to relieve the Owners of their responsibilities under the Act and the Condominium Constituent Documents.
Section 3.6. The affairs of the Association shall be conducted by a Board of Directors who shall be selected in the manner stated in this Declaration, the Articles and Bylaws. Each director shall be an Owner or the spouse of an Owner, or, if an Owner is a corporation, partnership, trust or other legal entity, a director may be an officer, director, partner, beneficiary or authorized agent of such Owner. If a director shall cease to meet such directorship qualifications during his term, he shall automatically cease to be a director and his place on the Board shall be deemed vacant.
Section 3.7. The Condominium Constituent Documents shall be interpreted and applied in the following order of precedence, with any conflicts being resolved in favor of the document having precedence:

1. Declaration;
2. Articles;
3. Bylaws; and
4. Rules and Regulations.

 

Section 3.8. In the event of any dispute or disagreement between any Owners relating to the Condominium Project or any question of interpretation or application of this Declaration, the Articles, Bylaws or Rules and Regulations, the determination thereof by the Board shall be final and binding on each and all of the Owners. If a decision cannot be reached by the Board in connection with any matter submitted to or considered by the Board, such matter shall be determined by the Members, voting as provided by Article V. If the Members are unable to resolve such matter, it shall be submitted and settled in accordance with the current rules and regulations of the American Arbitration Association in Maricopa County, Arizona, and any decision made or rendered thereof shall be final and binding upon all of the Owners and the Association.
Section 3.9. All funds received by and the titles of all properties acquired by the Association shall be held in trust for the Members of the Association in accordance with this Declaration, the Articles and Bylaws.
Section 3.10. The Association shall make available to all Owners of Units and prospective purchasers of Units, if any, current copies of this Declaration, the Bylaws, the Rules and Regulations, and the most recent annual audited financial statement of the Association. For purposes of this section "available" shall mean available for inspection, upon request, during normal business hours or under other reasonable circumstances.

 

ARTICLE IV

•  

 

Section 4.1. Membership in the Association shall be limited to owners of Units. An Owner of a Unit shall automatically, upon becoming the Owner of a Unit, become a Member and remain a Member until such time as his ownership ceases for any reason, at which time his Membership shall automatically cease.
Section 4.2. A Membership shall not be transferred, pledged or alienated in any way, except upon the sale of a Unit and then only to such purchaser, or by intestate succession, testamentary disposition, foreclosure of Mortgage of record or deed in lieu of foreclosure of a Mortgage, or such other legal process as now in effect or as may hereafter be established under or pursuant to the laws of the State of Arizona. Any attempt to make a prohibited transfer shall be void and will not be reflected upon the books and records of the Association. In the event the Owner of any Unit should fail or refuse to transfer the Membership registered in his name to the transferee of such Unit, the Association shall have the right to record the transfer upon the books of the Association and issue a new Membership to the transferee and thereupon the old Membership outstanding in the name of the transferring Owner shall be null and void as though the same had been surrendered. The new Membership shall become effective as of the date of transfer of record of the ownership of the Unit.
Section 4.3. The Owner of each Unit shall be entitled to one (1) Membership in the Association, which Membership shall be subject to all of the provisions of the Condominium Constituent Documents. If a Unit shall have more than one (1) Owner, all Owners of that Unit shall be Members of the Association; provided, however, that such Members' voting rights shall be limited as provided in Section 5.1.

ARTICLE V
Voting Rights

 

Section 5.1. Each Member shall be entitled to cast one (1) vote for each Unit owned. If, however, a Unit is owned by more than one Member, the Members owning such Unit shall collectively be entitled to cast one (1) vote for that Unit. The method of which the vote shall be cast, and the person authorized and designated to cast the vote on behalf of the Members owning such unit, shall be as provided in the Articles and/or Bylaws of the Association.
Section 5.2. In the event any Owner is in arrears in the payment of any Assessment or other amount due under or otherwise in default in the performance of any of the provisions of this Declaration, the Articles or Bylaws for a period of fifteen (15) days after written notice thereof from the Association, such Owner's right to vote as a Member shall be suspended until all such payments are brought current and/or all such defaults are remedied. The foregoing shall be in addition to, and not in lieu of, all other remedies provided in this Declaration, the Articles, the Bylaws or by applicable law for such non-payment or default.

 

ARTICLE VI

Property Rights

 

Section 6.1. Every Member shall have a right and easement of use and enjoyment in and to the Common Elements, and such easement shall be appurtenant to, indivisible from, and shall pass with title to each Unit. Such rights of use and enjoyment to the Common Elements may be exercised by any person legally in possession of a Unit not in violation of the Act, this Declaration, the Articles and/or Bylaws and any Rules and Regulations adopted by the Association; provided, however, that nothing herein shall be deemed to alter or amend the definition of Owner, as set forth in Section 1.19, or to affect the provisions of Articles IV or V. 
Section 6.2. The right and easement of use and enjoyment accorded hereby shall be subject to the Rules and Regulations promulgated by the Board, which may include, but shall not be limited to:
A. The right of the Association to limit the number of guests or invitees of Members;
B. The right of the Association to charge reasonable admission or other fees for the use of any recreational facility constituting a part of the Common Elements;
C. The right of the Association, in accordance with the Condominium Constituent Documents, to borrow money for the purpose of improving the Common Elements and to encumber the Common Elements therefor; provided, however, that such right shall not be exercised or authorized, nor shall any such encumbrance be created, in violation of the Act or other applicable law;
D. The right of the Association to reasonably suspend the voting rights and the right to use all or any portion of the recreation facilities by an Owner for any period during which an Assessment against such Owner's Unit remains unpaid following fifteen (15) days written notice thereof to such delinquent Owner in accordance with the Condominium Constituent Documents;
E. The right of the Association to dedicate or transfer all or any part of the Common Elements to any public agency, authority or utility for such purposes and subject to such conditions as may be determined by the Association. No such dedication or transfer shall be effective unless agreed to by at least fifty-one per cent (51%) of the owners or such higher percentage as may be required by this Declaration or applicable law. 
Section 6.3. Any Owner may delegate, in accordance with the Condominium Constituent Documents, his right of enjoyment to the Common Elements to members of his family, his tenants, or contract purchasers who reside in such Owner's Unit.
Section 6.4. One (1) covered parking space in phases I, II and III shall be assigned to each Unit for the exclusive use of the Owner (and his or her designees) of such Unit. Such parking spaces shall be maintained by the Association, and the use thereof shall be subject to such reasonable rules and regulations as shall from time to time be set by the Association.
Section 6.5. The garage interiors, doors and windows in phase IV shall be maintained by the Unit owners.

 

ARTICLE VII

•  

 

Section 7.1. The making and collection of Assessments against Owners shall be pursuant to this Article VII, and each Owner, for himself, his heirs, successors and assigns, covenants and agrees by accepting a deed, entering into an agreement for sale, or other conveyance of an interest in a Unit, that he shall pay and his Unit shall be subject to Assessments as follows:
A. Amount of Assessment.
(1) Each Unit's proportionate share of all Common Expenses;
(2) Each Unit's proportionate share of such additional sums as the Board shall determine to be necessary to meet the primary purposes of the Association; and
(3) Each Unit's respective obligations, if any, pursuant to Section 7.1.D.
B. Unit's Proportionate Share. Subject to the limitations set forth in Section 7.1.C. below, each Unit's proportionate share of the total amount determined under Sections 7.1.A(1) and 7.1.A(2) shall be equal to such Unit's Common Element Interest, together with any additional amount owed by the Owners of such Unit pursuant to Section 7.1.D.
C. Maximum Regular Assessments. The maximum regular assessments per year may, without a vote of the Members, be increased each year not more than the greater of: (i) seven percent (7%) above the maximum regular assessment for the previous year, or (ii) an amount equal to an increase above the maximum regular assessment corresponding to the proportionate increase for the consumer price index – All Urban Consumers (U.S. City Average, 1982-1984 = 100), as published or quoted by the United States Bureau of Labor Statistics. 
The maximum regular assessment may be increased more than permitted above only upon the approval of fifty-one percent (51%) of owners, voting by mail, proxy or in person at a meeting duly called for such purpose. 
D. Unit Costs. Notwithstanding each Unit Owner's obligation for its proportionate share of the Assessments as stated herein, in addition thereto each Owner shall pay and reimburse the Association for any and all costs and expenses in connection with the following:
(1) Obligations of such Owner pursuant to any other provision of this Declaration including, but not limited to, the charges and obligations required pursuant to Articles VII, IX, X, XI, XII and XVI. 
(2) All costs incurred in the enforcement of the provisions of this Declaration against any Owner including, but not limited to, attorneys' fees and court costs. 
E. Purpose. The Assessments levied by the Association shall be used for the purpose of promoting the recreation, health, safety and welfare of the residents in the Condominium Project and in particular for the improvement and maintenance of the properties, services and facilities devoted to this purpose and related to the use and enjoyment of the Common Elements. 
Section 7.2 – Common Expenses. The Board is hereby authorized to obtain and secure the following items and services which shall be deemed Common Expenses:
A. Expenses of administration of the Condominium Project, Common Elements and/or the Association including, but not limited to, legal, accounting and management fees contracted for, at the discretion of the Board, if it deems such necessary for such administration;
B. Utility service for the Common Elements and for all Apartments, provided such utility service is not individually metered and/or charged to the Apartments;
C. Insurance as required by Article XII;
D. Maintenance, operation, repair, replacement and betterment of the Common Elements including, but not limited to, painting, landscaping, repairs, replacements, alternations, additions, reconstruction, services, supplies, labor, materials, equipment and other related items;
E. Any valid charge against the Condominium Project as a whole as determined by the Board including, but not limited to, all costs of enforcing compliance with this Declaration, together with such costs as are deemed necessary to meet the primary purpose of the Association;
F. An adequate reserve fund for maintenance, repairs and replacement of those Common Elements that must be replaced on a periodic basis, such reserve to be funded by Regular, and not Special Assessments, and a working capital fund for the initial months of operation of the Condominium Project equal to at least two (2) months' Assessments for all Units. Each Unit's share of the working capital fund will be collected and transferred to the Association at the time of closing of each Unit and will be maintained in a segregated account for the use and benefit of the Association. The contribution to the working capital fund for each unsold Unit shall be paid to the Association within sixty (60) days of the date of the conveyance of the first Unit; 
G. Taxes, assessments and similar charges assessed against or payable in connection with the Common Elements; and
H. Removal of rubbish from the Condominium Property.
I. Payment of assessments and other charges imposed pursuant to restrictive covenants, or similar documents, recorded against all or any portion of the Real Property prior to recordation of this Declaration. 
Section 7.3 – Determination of Assessments.
A. Regular Assessments. The amount to be prorated among the Owners pursuant to Section 7.1.A. shall, subject to the provisions of Section 7.1.C., be established annually by the Board, and the proportionate share to be paid pursuant to Section 7.1.B. shall be paid monthly or in such other installments as may be determined by the Board; provided, however, that the amount to be paid by any Owners pursuant to Section 7.1.A.(3) shall be established and assessed at such time as the Board shall deem appropriate. Said amounts shall be based upon an estimated annual budget and report which the Board shall cause to be prepared for each fiscal year of the Association. The budget shall take into account the estimated Common Expenses, including amounts for reserves, and any other sums which the Board may deem to be prudent for the protection of the Condominium Project. The amounts for reserves shall include an adequate fund for maintenance, repairs and shall include an adequate fund for maintenance, repairs and replacement of those Common Elements that must be replaced on a periodic basis. The budget and report shall also provide a summary of the Common Expense allocation, Assessments, and other fiscal activity of the Association for the previous fiscal year of the Association. Copies of the proposed budget and report shall be transmitted to each Owner on or before the first day of the fiscal year of the Association for which the budget is made, or as soon thereafter as the Board is able to adopt such budget.
If at any time during such fiscal year it appears that the amounts determined by the Board are not sufficient, or are in excess of the amounts required, the Board may, subject to the provisions of Section 7.1.C., amend the budget and increase or decrease the Regular Assessments, the amount prorated to each Owner, and the monthly amount to be paid by each Owner.
If the budget is amended, a copy thereof, shall be made available to the Owners at the Association office. 
B. Special Assessments. In the event the Board is required to make any expenditure which was not anticipated as of the first of any fiscal year of the Association, or for which there are not sufficient funds available, the Board is authorized to levy Special Assessments. Any such Special Assessment shall be charged to the Units in the same proportion as Regular Assessments, as provided by Section 7.1.B. The Owners shall pay all Special Assessments to the Board, or such depository as may be designated by the Board, within fifteen (15) days after the levy thereof or in such other manner and within such greater time as the Board may direct. 
C. Accounting. The Board shall at all times keep true and correct records of account for the Condominium Project and Association in accordance with generally accepted accounting principles applied on a consistent basis, and shall furnish for the inspection of all voting Owners at reasonable times such records which shall specify in detail all expenses incurred and funds accumulated from Assessments or otherwise. If a management agent contracts with the Association to perform all or a part of the Association's duties, the management agreement therefore shall require such management agent to maintain records in accordance with the foregoing requirements, and to provide the Board with a report of its activities under such management agreement prior to the close of each fiscal year of the Association, and at such additional times as may be requested by the Board. The information set forth in such report shall be included in the annual budget and report from the Board to the Owners required by Section 7.3.A.
D. Notice. Notice, quorum requirement, and voting at any meeting of the Members called for the purpose of taking any action authorized by this Article VII and requiring a vote of the Members shall be in accordance with the Bylaws.
Section 7.4. – Payment of Assessments and Lien Rights.
A. From and after the time of the first conveyance of a Unit, and from time to time thereafter, at least annually and prior to the first day of each fiscal year of the Association, the Board or its designated representative shall notify the Owners of Units of the total amount of the Assessments for such fiscal year for all Units, the amount to be prorated and assessed to each Unit for such fiscal year, and the monthly amount which each Owner shall pay, which amount shall be due and payable monthly on the first (1st) day of each calendar month, and shall be paid prior to the fifteenth (15th) day of each month, until the monthly amount due is changed by appropriate action of the Board, at which time the amount as changed shall be due and payable as aforesaid. Such monthly amount shall be paid to the Board or to any agent appointed by the Board to collect such payments, which agent may be a Mortgagee of a Unit. Each Owner, for himself, his heirs, successors, grantees and assigns, covenants that, with respect to Assessments so determined during the period that he is an Owner, he will remit these Assessments directly to the party or parties as directed by the Board.
B. Assessments and installments of such Assessments paid on or before fifteen (15) days after the date when due and payable shall not bear interest, but all sums not paid on or before fifteen (15) days after the date when due and payable shall bear interest at a rate then permitted by applicable law. All payments on account shall first be applied to non-interest and non-principal obligations payable by the payor thereof, if any, accrued and unpaid interest, and then to the Assessment payment, in that order.
C. No Owner may exempt himself from paying Assessments by being a non-user of the 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 this Declaration shall constitute, and a lien is hereby created, 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 or the Board may have in accordance with the provisions of this Declaration or otherwise.
E. Each Owner, by his acceptance of a deed to a Unit, or by becoming an Owner in any other fashion, 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 aforesaid lien by all methods available for the enforcement of such liens, including foreclosure by an action brought in the name of the Association in the like manner as a Mortgage of real property, and such Owner hereby expressly grants to the Association a power of sale in connection with said lien. In addition, the Association may make payments on any prior liens, including any Mortgage, tax or other assessment on the Unit, and such payments shall be added to the lien in favor of the Association. The lien provided for in this Section 7.4 shall be in favor of the Association and shall be for the benefit of all other Owners. The Association, acting on behalf of the Owners, shall have the power to bid in such a foreclosure sale and to acquire and hold, lease, mortgage and convey the property so purchased. Either the Association, or the Board on behalf of the Association, may institute a suit to recover a money judgment for unpaid obligations of the Owner without being required to foreclose on the Unit involved and without waiving the lien which secures such obligations. In any such foreclosure proceeding, the Owner shall be required to pay a reasonable rental for the Unit, commencing as of the date foreclosure proceedings are filed, and the plaintiff in such proceedings shall be entitled, subject only to the prior right of any holder of a recorded bona fide First Mortgage on such Unit, to such rent and to the appointment of a receiver to collect same.

 

ARTICLE VIII

 

Party Walls

 

The rights and duties of the Owners of the Units in the Condominium Project with respect to party walls shall be governed by the following:
A. Each wall, which is constructed as a part of the original construction of the Building containing any Apartment, any part of which is placed on the dividing line between separate Apartments, shall constitute a party wall. With respect to any such wall, each of the adjoining Owners shall assume any burdens and be entitled to the benefits of this Declaration and, to the extent not inconsistent herewith, the general rules of law regarding party walls shall be applied thereto.
B. In the event a party wall is damaged or destroyed through the act of any Owner or any of his guests, tenants, licensees, agents or member of his family, whether such act is negligent or otherwise culpable, the said Owner shall forthwith proceed to rebuild and repair the same to as good condition as formerly, and to bear the cost thereof, without cost to the adjoining Owner. 
C. In the event any such party wall is damaged or destroyed by some cause other than the act of another Owner, or any of his guests, tenants, licensees, agents or members of his family, including ordinary wear and tear and deterioration from lapse of time, then in such event it shall be the obligation of the Association to proceed forthwith to rebuild or repair the same to as good condition as formerly.
D. Notwithstanding any other provision of this Article VIII, any Owner who, by his neglect or willful act, causes any party wall to be exposed to the elements shall bear the whole cost of furnishing the necessary protection against such elements. 
E. the right of any Owner to contribution from any other Owner under this Article VIII shall be appurtenant to the Unit and shall pass to such Owner's successors in title.
F. In addition to meeting the other requirements of this Declaration and of any building code or similar regulations or ordinance, any Owner proposing to modify, make additions to or rebuild his Apartment in any manner which requires the extension or other alteration of any party wall shall first obtain the written consent of the Board.
G. In the event any Owner shall be responsible for the repair or rebuilding of a party wall, such repair and rebuilding shall be in accordance with, and the Owner shall be subject to, the provisions of Section 11.1.
H. In the event of a dispute between Owners with respect to the repair or rebuilding of a party wall or with respect to the sharing of the cost thereof, then upon written request of an Owner addressed to the Association, the matter shall be submitted to arbitration in accordance with the provisions of Section 3.10. The cost of such arbitration shall be borne by the non-prevailing party.

 

ARTICLE IX

Alterations, Additions and Improvements

 

Section 9.1 – Common Elements
A. Except as provided by Section 9.2.A, no structural alterations, additions or improvements shall be made to the Common Elements without the prior approval of the Owners of a majority of the Units given at a regular or special meeting of Members of the Association. Unless otherwise determined at such meeting by the Members of the Association, the cost of such structural alterations, additions or improvements to the Common Elements shall be paid by means of a Special Assessment against the Owners in the manner provided by Section 7.3.B. or, if applicable, from the reserve fund provided by Section 7.2.F.
B. Non-structural alterations, additions or improvements to the Common Elements may be authorized by the Board; provided, however, that any such alteration, addition or improvement requiring a Special Assessment to fund shall be subject to the requirements of Section 9.1.A.
Section 9.2 – Apartments.
A. Any Owner may make nonstructural additions, alteration and improvements within his Apartment without the prior written approval of the Board, but such Owner shall be responsible for any damage to any other Apartment, the Common Elements or the Condominium Property, which results from any such alterations, additions or improvements. Owners shall not make structural additions, alterations or improvements within an Apartment unless:
(1) 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;
(2) Such addition, alteration or improvement is approved in writing in advance thereof by the Board; and
(3) The Owner shall be responsible for any damage to other Apartments, the Common Elements or the Condominium Property which results from any such addition, alteration or improvement.
B. Notwithstanding the foregoing, no addition, alteration or improvement within an Apartment, whether structural or not, shall be made without the prior written approval of the Board if said addition, alteration or improvement is visible from other portions of the Condominium Project or from the surrounding neighborhood. Prior to and as a condition precedent to granting such approval, the Board shall affirmatively find that the proposed addition, alteration or improvement is aesthetically pleasing and in harmony with the surrounding portion of the Condominium Project.
Section 9.3 – Decorating. Each Owner, at his own expense, shall furnish and be responsible for all of the decorating within his own Apartment from time to time, including painting, wallpapering, washing, cleaning, paneling, floor covering, draperies, window shades, curtains, lamps and other furniture and interior decorating; provided, however, no reflective materials or unsightly material shall be placed in the windows or other surfaces which can be seen from the outside of the Buildings without the prior approval of the Board. 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 as may be required from time to time. Such maintenance and use shall be subject to the Rules and Regulations and each such Owner shall have the right to decorate such surfaces from time to time as he may see fit and at his sole expense. Decorating of the Common Elements, other than interior surfaces within the Apartment as above provided, and any redecorating of Apartments to the extent made necessary by any damage to existing decorating of such Apartment caused by maintenance, repair or replacement work of the Common Elements by the Association shall be furnished by the Association as part of the Common Expenses. The interior and exterior surfaces of all windows and glass doors, if any, forming part of the perimeter wall enclosing an Apartment shall be cleaned and washed at the expense of such Apartment's Owner unless the Board determines otherwise.

 

ARTICLE X

•  

 

Section 10.1 – General. Responsibility for the maintenance of the Condominium Property shall be as follows:
A. Apartments.
(1) By the Association. The Association shall maintain, repair and replace, at the Association's Expense:
(a) All common elements which contribute to the support of the buildings, which shall include, but not be limited to, the outside walls of the apartment, floor and ceiling slabs, load-bearing columns, load-bearing walls and all fixtures forming a part of the Common Elements on the exterior boundary walls of apartments. Provided, however, that the foregoing shall not be deemed to include interior surfaces, doors, windows, and appurtenant hardware opening into, within or benefiting an apartment, or heating and air conditioning components not a part of the Common Elements.
(b) All conduits, ducts, plumbing, wiring and other facilities for the furnishing of utility services which are contained in the portions of an Apartment maintained by the Association, and all facilities contained within an Apartment which service part or parts of the Condominium Property other than the Apartment within which such facilities are contained; and
(c) Notwithstanding the foregoing, the Association shall have the authority to require Apartment Owners: (i) to maintain, repair and replace all damages to windows and doors except to the extent of damage for which insurance proceeds are paid under policies purchased by the Association; and (ii) to undertake any other maintenance, repair and replacement work covered by Rules and Regulations and/or Article IX.
(2) By the Apartment Owner. The responsibility of each Owner shall be as follows:
(a) To maintain, repair and replace at his expense all portions of his Apartment including, but not limited to, property damaged or destroyed by casualty loss except the portions to be maintained, repaired and replaced by the Association. Such work shall be done without disturbing the rights of other Owners. 
(b) The portions of an Apartment to be maintained, repaired and replaced by the Owner thereof at his expense shall include, but not be limited to, the following items: air conditioning and heating equipment unless forming a part of the Common Elements, service equipment such as dishwasher, refrigerator, washer and dryer, oven, stove, water heater and interior fixtures such as electrical and plumbing fixtures and all ducts and vents that service the above equipment and appliances; floor coverings and all interior surfaces including paint and other inside wall finishes. 
Owners shall also maintain all windows, doors and all hardware appurtenant thereto, within or benefiting their respective Apartments.
The appearance, type and method of installation of air conditioning and heating units must first be approved by the Board if any change is contemplated in the appearance, type and method of installation of any replacements.
(c) To maintain all Improvements and upgrades to the Unit such as, but not limited to, skylights, decorated driveways and sidewalks, patio floors and patio walls. The Owner shall also maintain all vegetation within the patio walls.
The Owner's obligation hereunder shall continue under circumstances where damage to the upgrades is caused by the Common Elements
B. Common Elements. Maintenance, repairs and replacement of the Common Elements, except for those items in Section 10.1.A(2)(c), shall be furnished by the Association as part of the Common Expenses, subject to the provisions of the Condominium Constituent documents.
Section 10.2 – Additional Provisions
A. If, due to the act or neglect of an Owner, member of his family, guest or other authorized occupant, or visitor or invitee of such Owner, damage shall be caused to the Common Elements or to an Apartment owned by others, or maintenance, repairs or replacements shall be required which would otherwise be a Common Expense, then such Owner shall, to the extent not covered by the Association's insurance, pay, by Assessment or otherwise, for such of the damage and for such of the maintenance, repairs and replacements as may be determined by the Board. 
B. No owner shall paint or otherwise decorate or change the appearance of any portion of the exterior of the building, including patio walls, sidewalks and driveways, without the prior written approval of the Board.
C. Each Owner shall promptly report to the Association any defect or need for repairs, the responsibility for remedying of which is that of the Association.
D. An authorized representative of the Board, or of the management agent of the Condominium Project, and all contractors and repairmen employed or engaged by the Board or such management agent, shall be entitled to reasonable access to each of the Apartments as may be required in connection with maintenance, repairs or replacement of or to the Common Elements or any equipment, facilities or fixtures affecting or serving other Apartments and the Common Elements.

 

ARTICLE XI

Damage or Destruction of Condominium Property

 

Section 11.1. In the event the Common Elements or Apartments, or any portion thereof, is damaged or destroyed by an Owner or any of his guests, authorized occupants, tenants, licensees, agents or members of his family, and to the extent not covered by insurance, such Owner shall, within fifteen (15) days from the date of the occurrence of such damage or destruction, repair and rebuild or use best efforts to commence the repair and rebuilding of the damaged or destroyed portion of the Common Elements and/or Apartments. If such damage or destruction is not repaired, rebuilt, or such repair and rebuilding is not commenced by the Owner within such period in a manner and form acceptable to the Board and in conformance with the original plans and specifications of the Condominium Property or such other plans and specifications as shall be approved by the Board, the Association, by and through its Board, is hereby irrevocably authorized by each Owner to perform such repair and rebuilding in a good and workmanlike manner in general conformance with the original plans and specifications of the Condominium Property or such other plans and specifications as shall be approved by the Board. The amount actually expended for such repair and/or rebuilding shall then be collectible as an Assessment against such Owner, subject to all means of collection and enforcement, including lien remedies provided by Article VII.
Section 11.2. In the event of a dispute between an Owner and the Association with respect to the cause of damage or the extent of repair or rebuilding necessitated thereby or with respect to the cost thereof, then upon written request of either party addressed to the other party, the matter shall be submitted to arbitration in accordance with Section 3.10, with the costs of such arbitration to be borne by the non-prevailing party.

 

• ARTICLE XII

•  

•  

  Section 12.1 – Insurance Coverage. Insurance which shall be carried by the Association on the Condominium Property shall be governed by the following provisions:
  A. Authority to Purchase. The Board shall purchase and maintain certain insurance upon the Condominium Property including, without limitation, the insurance described in Section 12.1.B., which insurance is to be purchased by the Association for the benefit of the Association, the Owners, and the Mortgagees, as their interests may appear, and provisions shall be made for the issuance of certificates of endorsement to the Mortgagee of any First Mortgage. Such policies and endorsements thereon or copies thereof shall be deposited with the Association. The Board shall deliver a copy of the policies, or advise the Owners of the coverage of said policies to determine which particular items are included within the coverage so that the Owners may insure themselves as they see fit with respect to any items not insured by the Association.
  B. Coverage. Insurance purchased by the Board, with a deductible approved by the Board, shall be a multi-peril, "master", "blanket" type policy or equivalent coverage to provide the following coverages:
  (1) Property, fire and extended coverage insurance covering the Common Elements in the entire Condominium Project in an amount not less than the full replacement value of current replacement cost of the said Common Elements. Such insurance shall afford protection against at least the following:
  (a) Loss or damage by fire and other hazards covered by the standard extended coverage endorsement, and by sprinkler, garbage, debris removal, cost of demolition, vandalism and malicious mischief, windstorm and water damage; and
  (b) Such other risks in such kinds and amounts as are customarily acquired or required for projects similar in construction, location and use.
  (2) Public Liability – A comprehensive policy of public liability insurance covering all of the Common Elements, commercial spaces and public ways in the Condominium Project for death, personal injury and property damage. Such insurance policy shall contain a "severability of interest" endorsement or equivalent coverage which shall preclude the insurer from denying the claim of an Owner because of the negligent acts of the Association and its agents or another Owner or Owners. The scope of such coverage shall include protection against water damage liability, liability for non-owned and hired automobile, liability for property of others and if applicable, elevator collision, garage-keeper's liability, host liquor liability, and all such other risks and coverages in the kinds and amounts customarily acquired or required for projects similar in construction, location and use.
  (3) Fidelity – The Association must obtain and maintain fidelity coverage to protect against dishonest acts on the part of its officers, directors, managers, trustees, employees, volunteers and all others who are responsible for handling funds belonging to or administered by the Association.
  (4) Worker's Compensation – A worker's compensation policy, if necessary, to meet the requirements of law. 
  (5) Such other insurance as the Board shall determine from time to time to be desirable. 
  (6) The insurance policies purchased by the Association shall, to the extent possible, contain the following provisions:
  (a) That the conduct of any one or more Owners shall not constitute grounds for avoiding liability on any such policies and, further, that the coverage thereunder shall not be prejudiced by (i) any act or neglect of the Owners when such act or neglect is not within the control of the Association; or (ii) any failure of the Association to comply with any warranty or condition regarding any portion of the Real Property over which the Association has no control.
  (b) That a "severability of interest" endorsement which shall preclude the insurer from denying the claim of an Owner because of negligent acts of the Association or other Owners.
  (c) That each Unit Owner is an insured person under the policy with respect to liability arising out of his or her interest in the Common Elements or Membership in the Association. 
  (d) That the insurer waivers its right to subrogation under the policy against any Unit Owner or Member of his or her household. 
  (e) That if, at the time of a loss, there is other insurance in the name of a Unit Owner covering the same property covered by the policy, the Association's policy shall provide primary insurance. 
  (f) That the insurer shall not cancel or refuse to renew the policy until a minimum of thirty (30) days has elapsed after it has mailed notice thereof to all parties of interest. 
  C. Owner's Insurance. Without limiting the generality of the foregoing provisions of this Section 12.1, it shall be each Owner's responsibility to provide for himself:
  (1) Owner's liability insurance;
  (2) Theft or other insurance covering personal property damage and loss;
  (3) Casualty insurance on the portion of his Apartment which is not considered part of the Common Elements including, but not limited to, carpeting, drapes, wall covering, fixtures, furniture, furnishings, appliances and other personal property; and
  (4) Insurance which is not carried by the Association and which the Owner desires.
  Section 12.2 – Insurance Proceeds
  A. Except as otherwise provided herein, all insurance policies purchased by the Association shall be for the benefit of the Association, the Owners and Mortgagees as their interest may appear, shall name the Association as named insured thereunder. 
  B. The duty of the Association shall be to receive such proceeds as are paid and to hold them in trust for the benefit of the Association, Owners and their Mortgagees, as follows:
  (1) Proceeds, if any, on account of Apartments shall be held for the Owners of damaged Apartments in proportion to the cost of repairing the damage suffered by each Owner, which cost shall be determined by the Association.
  (2) In the event a Mortgagee endorsement has been issued as to a Unit, the share of the Owner shall be held in trust for the Mortgagee and the Owner as their interests may appear.
  Section 12.3 – Damage and Repair. If any part of the Condominium Project or any property in which the Association owns an interest shall suffer loss or damage by casualty, whether it shall be repaired and/or reconstructed, shall be determined in the following manner:
  A. If the damaged property is part of the Common Elements or any property in which the Association owns an interest, it shall be repaired or reconstructed, unless it is determined that the Condominium Project shall be terminated.
  B. Any repair or reconstruction must be substantially in accordance with the plans and specifications for the original Condominium Property, or if not, then according to plans and specifications approved by the Board.
  C. If the loss or damage is only to those parts of an Apartment or Apartments for which the responsibility of maintenance and repair is that of the Owner thereof, then such Owner shall be responsible for repair and reconstruction; provided, however, that to the extent any insurance proceeds collected are attributable to the Apartments and not the Common Elements, the share of the proceeds attributable to the Apartments shall be used for repairs and reconstruction of the Apartments.
  D. Immediately after a determination is made to repair or reconstruct damage to property for which the Association has the responsibility for repair or reconstruction, the Association shall obtain reliable and detailed estimates of the cost of the repair or reconstruction.
  E. If the proceeds of insurance are not sufficient to defray the estimated costs of reconstruction and repair by the Association, Assessments shall be made against the Owners who own the damaged property, and against all Owners in the case of damage to Common Elements, in 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 Owners for damage to Apartments shall be in proportion to the cost of reconstruction and repair of their respective Apartments. Such Assessments on account of damage to Common Elements shall be in proportion to the Owner's respective Common Element interests.
  Section 12.4 – 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 Owner, shall be paid to the Owner or, if there is a Mortgagee endorsement, then to the Owner and the Mortgagee jointly, who may use such proceeds as they may determine; provided, however, to the extent that any damage to an Apartment affects in any way the Common Elements or any other Owner's Apartment, 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 responsibility of the Association, shall be disbursed in payment of the costs of such repair and reconstruction in the manner required by the Board.

   

  ARTICLE XIII

  Use Restrictions

   

  Section 13.1. Each Unit in the Condominium Property shall be known as, and limited to, a single family residential use. The use and occupancy of the Condominium Property shall be in conformity with all applicable zoning ordinances, and other laws.
  Section 13.2. No noxious or offensive activity may be carried on or permitted in any part of the Condominium Property, nor shall any part of the Condominium Property be used for business, professional, commercial, religious, institutional or other non-residential purposes.
  Section 13.3. No nuisance shall be permitted to exist or operate upon the Condominium Property or in connection with any Apartment so as to be offensive or detrimental to any other property or Apartment in the vicinity thereof or to its occupants. No rubbish or debris of any kind shall be placed or permitted to accumulate upon the Condominium Property or adjacent to any Apartment and no odors shall be permitted to arise therefrom, so as to render the Common Elements, Apartments or portions thereof unsanitary, unsightly, offensive or detrimental to any other Apartment or property in the vicinity thereof, or to its occupants. No exterior speakers, horns, whistles, bells or other sound devices except security devices used exclusively for security purposes, shall be located, used or placed on the Condominium Property, nor shall any offensive activity be carried on in any Apartment, nor shall anything be done thereon which may be or may become an annoyance or a detriment to other Apartments or their occupants or Owners. The Board, in its sole discretion, shall have the right to determine the existence of any nuisance.
  Section 13.4. No animals, fish, fowl, poultry, livestock, or birds of any kind shall be raised, bred or in any way kept or allowed on the Condominium Property. 
  Section 13.5. Gas, electric, power, telephone, water, sewer, cable television and other utility service lines used for the general benefit of the Owners and other utility or service lines of every kind or character, whether now or hereafter invented or used, shall be placed and kept underground up to the walls of the buildings on the Property, except to the extent, if any, such underground placement may be prohibited by law, or by the nature of the service to be rendered, such underground placement prevents the lines from being functional; provided, however, that the foregoing shall not apply to such utility or service lines as are on the Condominium Property as of the effective date of this Declaration. This restriction shall apply to the service and utility lines for each and every Apartment and the Common Elements, as well as to the distribution lines located in the Condominium Property. However, the foregoing shall not prohibit service pedestals and above-ground switch cabinets and transformers, where required. No provision hereof shall be deemed to forbid the erection of temporary power, telephone or similar structures incident to the construction of buildings or structures approved by the Board. 
  Section 13.6. Except on the private patios of every Unit, no planting or gardening shall be done, and no fences, hedges or walls, improvements, exterior painting, landscaping or decorative alterations, repairs, excavation, or other work which in any way alters the exterior appearance of the Condominium Property, or the improvements located thereon shall be commenced, erected, maintained, made or done except as provided by Article IX.
  Section 13.7. Placement and location of all radio, television and other antennas of every kind or nature upon the Condominium Property shall be subject to the prior approval of the Board.
  Section 13.8. No sign, other than a name and address sign not exceeding 9" by 30" in size, of any nature whatsoever shall be permitted on the Condominium Property in connection with any Unit without prior written approval of the Board.
  Section 13.9. No mobile home, motor home, boat, trailer of any kind, commercial use truck, truck-camper, tent or similar structure shall be kept or placed upon the Condominium Property.
  Motor vehicles of any kind, not excluded above, shall not be parked or stored on the Condominium Property except as assigned; nor shall any of such vehicles be repaired upon the Condominium Property without the prior approval of the Board. 
  Section 13.10. No portion less than all of a Unit shall be conveyed or encumbered. Nothing herein shall prevent the dedication or conveyance of or granting of easements over portions of the Condominium Property for public utilities or other public purposes, in which event the remaining portion of any Unit affected shall, for the purpose of these restrictions, be considered as a whole Unit.
  Section 13.11. Appurtenant to each Unit shall be the right to the use of one (1) assigned parking space. Parking for each Unit shall be in the parking space as designated by the Association. Parking rights shall not be severed from the Project.
  Section 13.12. The Common Elements shall at all times be controlled and regulated by the Association or its successors in order to preserve the rights of the Owners with respect to the operation and management of the Common Elements.
  Section 13.13. Subject to the provisions of the Condominium Constituent Documents, only entire Units may be rented, provided the occupancy thereof is only by the lessee and his family and guests. With the exception of a lender in possession of a Unit following a default in a First Mortgage, a foreclosure proceeding or any deed or other arrangement in lieu of foreclosure, no Owner shall be permitted to lease his Unit for transient or hotel purposes. No Owner may lease less than the entire Unit. All lease agreements shall be in writing and shall provide that the terms of the lease shall be subject in all respects to the provisions of the Declaration, Articles, Bylaws and Rules and Regulations and any failure by lessee to comply with the terms of such documents shall be a default under the lease. For purposes of this Declaration, "lease" shall mean any agreement for the leasing or rental of a Unit on the Real Property including, but not limited to, "month-to-month" rentals. In no event shall a Unit be leased for an initial term of less than thirty (30) days.
  Section 13.14. Age Restriction. Except as set forth below, each Unit shall be occupied by at least one (1) person fifty-five (55) years of age or older, and no person who is less than eighteen (18) years of age shall occupy a Unit. The foregoing restrictions shall not prohibit the occupancy of a Unit by the following persons:
  A. A person who is less than eighteen (18) years of age who is a guest or an invitee of a Unit Owner for a period not to exceed ninety (90) days in any twelve month period.
  B. Any person or persons who own or occupy a Unit or have entered into a contract to buy a Unit as of March 28, 2003.
  C. The surviving spouse of a deceased resident who was fifty-five (55) years old or older at the time of death.
  D. The surviving spouse of a resident who is fifty-five (55) years old or older at the time such resident is advised by such medical doctor licensed by the state of Arizona to move to, or is placed in, a facility for the care of the elderly or the infirm on the advise of a medical doctor licensed by the state of Arizona.

   

  ARTICLE XIV

•  

•  

  Section 14.1. There is hereby created a blanket easement upon, across, over and under the Condominium Property for ingress, egress, installation, replacing, repairing and maintaining all utility and service lines and systems including, but not limited to, water, sewers, gas, telephones, electricity, air conditioning, heating, television cable or communication lines and systems. By virtue of this easement, it shall be expressly permissible for the providing utility or service company, or the Association or their agent, to install and maintain facilities and equipment on the Condominium Property and, subject to the provisions of Article XIII, to affix and maintain wires, pipes, lines, mains, circuits, conduits, ducts, vents, and cables, and other appurtenant items, on, in and under the roofs and exterior walls of the Buildings and the Condominium Property. The Association and its authorized agents shall have a reasonable right of entry upon the Unit to effect emergency or other necessary repairs which the Owner has failed to perform.
  Section 14.2. Each Apartment 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, reconstruction, repair, shifting, settling, movement and overhangs. If any portion of the Common Elements shall actually encroach upon any Apartment, or if any Apartment shall actually encroach upon any portion of the Common Elements, or if any Apartment shall actually encroach upon another Apartment, as the Common Elements and Apartments 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. Owners and any other parties acquiring any interest in the Condominium Property shall acquiesce and agree to the existence of such easements by accepting a deed or other ownership interest from any seller of a Unit or by acquiring any interest whatsoever in the Condominium Property.
  Section 14.3. Each Unit Owner shall have the right of ingress and egress to his Unit, and no provisions of the Condominium Constituent Documents shall restrict such right.

   

  ARTICLE XV

  Rights of First Mortgagees

   

  Section 15.1. Notwithstanding any provision in the Condominium Constituent documents to the contrary, nothing shall be done which shall affect, defeat, impair or invalidate the interest or lien of a First Mortgagee, unless otherwise allowed by law.

   

  ARTICLE XVI

  General Provisions

  Section 16.1 – Binding Effect and Enforcement. The provisions, covenants, conditions, charges, liens, reservations, easements and restrictions contained herein shall run with the land and shall be binding upon all persons purchasing, owning, leasing, subleasing or occupying or otherwise having any interest in the Condominium Property or any Unit in the Condominium Project, their heirs, executors, administrators, successors, lessees, grantees and assigns. The provisions hereof may be enforced by the Association or its agent and the Owner or Owners of any Unit. Any person who acquires title to a Unit, except through foreclosure or other remedy provided by a Mortgage, shall take title to such Unit subject to the lien hereof for all charges and Assessments that have accrued prior to such acquisition of title, and subject to the lien hereof for all charges and Assessments that shall accrue subsequent to the date such person takes title; and, provided also, that the breach of any provision of the Declaration, Articles, Bylaws or Rules and Regulations or of the Act may be enjoined, abated or reviewed by appropriate proceedings, notwithstanding the lien or existence of any Mortgage. The personal obligation to pay previously accrued Assessments shall not pass to a successor in title unless the obligation is expressly assumed by the successor in title. The terms of this Declaration shall be binding upon all persons affected by its terms, regardless of whether any reference is made to this Declaration in the deed or other instrument of conveyance. Enforcement of the provisions of this Declaration may be by proceedings at law or in equity, against any person or persons violating or attempting to violate all or any of such provisions, either to restrain such violation or attempted violation, and/or to recover damages. In the event the Association employs an attorney or attorneys to enforce a lien or the collection of any amounts due the Association, including Assessments, or to enforce compliance with or specific performance of the provisions of this Declaration, the Owners and parties against whom the action is brought shall pay all attorneys’ fees and costs incurred by such enforcing parties. Nothing herein shall be deemed to indicate or provide that damages at law shall constitute an adequate remedy for violation of any provisions of this Declaration.
  Section 16.2 -- Waiver or Abandonment. The waiver of, or failure to enforce any breach or violation of any provision contained in this Declaration shall not be deemed to be a waiver or abandonment of such provisions, or a waiver of the right to enforce any subsequent breach or violation of such provisions. The foregoing shall apply regardless of whether any person affected hereby, or having the right to enforce these provisions, had knowledge of the breach or violation. 
  Section 16.3 – Equal Treatment of Owners. This Declaration shall be applied to all Owners without discrimination.
  Section 16.4 – Severability. The invalidity of any one or more phrases, sentences, clauses, paragraphs, or sections hereof shall not affect the remaining portions of this Declaration or any part thereof, all of which are inserted conditionally upon their being held valid in law. 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 shall be construed as if such invalid phrase or phrases, sentence or sentences, clause or clauses, paragraph or paragraphs, or section or sections had not been inserted. 
  Section 16.5 – Gender. The singular, wherever used herein, shall be construed to mean the plural then applicable, and the necessary grammatical changes required to make the provisions hereof apply either to corporations or other entities, or individuals, men or women, shall in all cases be assumed as though in each case fully expressed.
  Section 16.6 – Topic Headings. The marginal or topical headings contained in this Declaration are for convenience only and do not define, limit or construe the contents of this Declaration.
  Section 16.7 – Amendment. Subject to the provisions of Article XV, Amendment of this Declaration shall require the assent to the Amendment in writing, executed by the then Owners representing fifty-one percent (51%) of the Units in the Condominium Project or such higher percentage as may be required by law and recorded in the Office of the Recorder, Maricopa County, Arizona. 
  This Declaration and any Amendments thereto shall remain in full force and effect unless revoked by an Amendment in writing, executed by the then Owners representing not less than three-fourths of the Units in the Condominium Project, or such higher percentage as may be required by law, and recorded in the Office of the Recorder, Maricopa, Arizona. 
  Section 16.8 – Termination.
  A. This Condominium Project may be terminated pursuant to the provisions of Section 33-1228 of the Act, other applicable law, and this Declaration.
  B. Unless otherwise provided by applicable law, after termination of the Horizontal Property Regime, the Owners shall own the Condominium Property and all assets of the Association as tenants in common in undivided shares in proportion to their respective Common Element Interests, and their respective Mortgagees and lienors shall have Mortgages and liens upon the respective undivided interests of the Owners.
  Section 16.9 – Violations. Any violation of any federal, state, municipal, or local law, ordinance or regulation, pertaining to the ownership, occupation or use of any property within the Condominium Property is hereby declared to be in violation of this Declaration and subject to any or all of the enforcement procedures set forth herein.
  Section 16.10 – Guests. Each Owner shall be responsible for compliance by such Owner's agents, tenant, guest, invitee, licensee, and their respective servants and employees with the provisions of this Declaration, the Articles, Bylaws, and Rules and Regulations, as such may be amended from time to time. The Owner's failure to so ensure compliance by such persons shall be grounds for the same action available to the Board by reason of such Owner's own noncompliance.
  Section 16.11 – Management Agreements. Each Owner hereby agrees to be bound by the terms and conditions of all management agreements entered into by the Board, provided such agreements are not in violation of this Declaration, the Articles, the Bylaws and the Act or other applicable law. A copy of all management agreements shall be made available to each Owner by the Board upon request. Any such agreement shall provide for termination by either party with or without cause and without payment of a termination fee on ninety (90) days or less prior written notice thereof.
  Section 16.12 – Governing Law. This instrument and the rights and obligations of the parties hereunder shall be construed in accordance with and be governed by the laws of the State of Arizona.

   

  Pursuant to Article XVI, Section 16.7 of the Declaration, I, Delmore Schmidt, President of The Village at Apache Wells Homeowners Association, Inc., hereby certify that the requirements of said Article of the Declaration has been satisfied, including written approval of the requisite percentage of Owners, and all requirements of said Article of the Declaration will be satisfied upon recordation of this document.

   

  Delmore Schmidt

   

  
  STATE OF ARIZONA

   

  COUNTY OF MARICOPA

   

  On this 30th day of January, 2006, before me, the undersigned Notary personally appeared Delmore Schmidt, the President of The Village at Apache Wells Homeowners Association, Inc., known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged that he signed the same for the purposes therein contained.

   

   

  James L. McCAnn

  Notary Public

   

  James L. McCann

  Notary Public-Arizona

  Maricopa County

  My Commission Expires 5/12/2006