HANGAR HACIENDAS FIRST AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
THIS AMENDED AND RESTATED DECLARATION, made on the date hereinafter set forth by the undersigned, hereinafter referred to as “Declarant,” and shall supersede that Declaration of Restrictions recorded on May 11, 1989, at Instrument No. 89 217095, Official Records of Maricopa County, Arizona.
W I T N E S S E T H : WHEREAS, Declarant is the owner of certain property in the County of Maricopa, State of Arizona, which is more particularly described as: Lots 1 through 14 inclusive, Tracts B and C inclusive of Hanger Haciendas Unit One according to the plat recorded on May 11, 1989, at Book 331 of Maps, Page 27 thereof, Official Records of Maricopa County, Arizona. NOW, THEREFORE, Declarant hereby declares that all of the properties described above shall be held, sold and conveyed subject to the following easements, restrictions, covenants and conditions, which are for the purpose of protecting the value and desirability of, and which shall run with, the real property and be binding on all parties having any right, title or interest in the described properties or any part thereof, their heirs, successors and assigns, and shall inure to the benefit of each Owner thereof.
ARTICLE I – DEFINITIONS
Section 1. “ASSOCIATION” shall mean and refer to HANGAR HACIENDAS HOMEOWNERS ASSOCIATION, its successors and assigns.
Section 2. “COMMON AREA” shall mean all real property (including the improvements thereto) owned by the Association for the common use and enjoyment of the Owners. The Common Area to be owned by the Association at the time of the recording of the subdivision plat is described as follows: Tracts B and C of HANGAR HACIENDAS, according to the plat recorded on May 11, 1989, at Book 331 of Maps, Page 27, thereof, Official Records of Maricopa County, Arizona.
Section 3. “DECLARANT” shall mean and refer to James Nerison and Barbara Nerison, their successors and assigns, if such successors or assigns should acquire more than one undeveloped Lot from the Declarant for the purpose of development.
Section 4. “LOT” shall mean and refer to any plat of land shown upon any recorded subdivision map of the Properties, with the exception of the Common Areas.
Section 5. “OWNER” shall mean and refer to the record owner, whether one or more persons or entities, of a fee simple title to any Lot which is a part of the properties, including contract sellers, but excluding those having such interest merely as security for the performance of an obligation.
Section 6. “PRIVATE AREA” shall mean and refer to Tract A which is owned privately by James and Barbara Nerison to be used for commercial storage, ground operation and maintenance of aircraft, as well as other commercial purposes permitted as a non conforming industrial use. Tract A shall be and is specifically excluded from the application of this Declaration.
Section 7. “PROPERTIES” shall mean and refer to that certain real property herein before described, and such additions thereto as may hereafter be brought within the jurisdiction of the Association.
ARTICLE II – PROPERTY RIGHTS
Section 1.OWNERS’ EASEMENTS OF ENJOYMENT. Every Owner shall have a right and easement of enjoyment in and to the Common Area which shall be appurtenant to and shall pass with the title to every Lot, subject to the following provisions: (a) The right of the Association to charge reasonable admission and other fees for the use of any recreational or runway facility situated upon the Common Area, except as set forth in Article III, Section 3(c); or for the assignment of an Owner’s right to use the Common Area which is separate from the lease or assignment of the entire Lot; (b) The right of the Association to suspend the voting rights and right to use of the recreational facilities by an Owner for any period during which any assessment against his Lot remains unpaid; or for any infraction of its published rules and regulations until compliance with the rules and regulations is confirmed by the Board; or for any violation of Federal Aviation Regulations (F.A.R.’s) by an Owner or user of the Common Area, until such period of suspension or other sanction is removed. (c) The right of the Association to dedicate or transfer all or any part of the Common Area to any public agency, authority or utility for such purposes and subject to such conditions as may be agreed to by the members. No such dedication or transfer shall be effective unless an instrument agreeing to such dedication or transfer signed by two-thirds (2/3) of each class of members has been recorded. (d) The right of the Association to permit use of the Common Areas by other than infrequent guests and to charge a fee for that use.
Section 2. DELEGATION OF USE. Any owner may delegate, in accordance with the Bylaws, his right of enjoyment to the Common Area and facilities to the members of his family, his tenants, or contract purchasers or assignees. (a) Any lease or assignment of an Owner’s right to use the Common Area which is separate from a lease or assignment of a Lot must be in writing and must be approved by the Board of Directors of the Association. Assignment of use of the Common Area by an Owner which is separate from a lease or assignment of the entire Lot shall result in loss of the Owner’s right to use the Common Area during the term of that agreement, but shall not relieve the Owner from any obligations hereunder, including an Owner’s covenant to pay assessment pursuant to Article IV.
ARTICLE III – MEMBERSHIP AND VOTING RIGHTS
Section 1. MEMBERSHIP. Every Owner of a Lot which is subject to assessment shall be a member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Lot which is subject to assessment, except as set forth in Section 3 of this Article.
Section 2. VOTING RIGHTS. The Association shall have two classes of voting membership: Class A. Class A members shall be all-Owners, with the exception of the Declarant, and shall be entitled to one vote for each Lot owned. When more than one person holds an interest in any Lot, all such persons shall be members. The vote for such Lot shall be exercised as they determine, but in no event shall more than one vote be cast with respect to any Lot. Class B. The Class B member(s) shall be the Declarant and shall be entitled to three votes for each Lot owned. The Class B membership shall cease and be converted to Class A membership on the happening of either of the following events, whichever occurs earlier: (a) When the total votes outstanding in the Class A membership equal the total votes outstanding in the Class B membership; or (b) On July 1, 1997.
Section 3. ASSOCIATE MEMBERSHIPS. It is recognized and acknowledged that the Common Area runway facilities may accommodate more use than is likely to occur from thirty-six (36) residences. (a) In consideration for transfer and dedication to the Association of the real property which is the Common Area by the Owner of Tract A and for development services rendered in connection with the Property, the Owner of Tract A is hereby granted thirty-seven (37) Associate Memberships in the Association. The Owner of Tract A may transfer or assign the right to use the Common Area pursuant to the Associate Memberships and may receive a fee for that transfer. (b) Associate Members shall be entitled to use the Common Area for aircraft and landing purposes in accordance with the restrictions and regulations as are set forth in the Declaration, the Articles of Incorporation of Hangar Haciendas Homeowners Association and any Bylaws, Rules or Regulations adopted by the Association. (c) The Association shall not be entitled to charge fees or collect assessments from Associate Members. Associate Members shall have no right to vote or participate in the operation of the Association. There shall be no rights in or to the real property which is the subject of this Declaration derived by the Associate Members.
ARTICLE IV – COVENANT FOR MAINTENANCE ASSESSMENTS
Section 1. CREATION OF THE LIEN AND PERSONAL OBLIGATION OF ASSESSMENTS. The Declarant, for each Lot owned within the Properties, hereby covenants, and each Owner of any Lot by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association: (1) annual assessments or charges and (2) special assessments for capital improvements, such assessments to be established and collected as hereinafter provided. The annual and special assessments, together with interest, costs and reasonable attorneys’ fees, shall be a charge on the land and shall be a continuing lien upon the property, against which each such assessment is made. Each such assessment, together with interest, costs and reasonable attorneys’ fees, shall also be the personal obligation of the person who was the Owner of such property at the time when the assessment fell due. The personal obligation for delinquent assessments shall not pass to successors in title unless expressly assumed by them.
Section 2. PURPOSE OF ASSESSMENTS. The assessments levied by the Association shall be used exclusively to promote the recreation, health, safety and welfare of the residents in the Properties, and for the improvement and maintenance of the Common Area. (a) The annual assessment may be increased by a vote of fifty one percent (51%) of each class of members who are voting in person or proxy, at a meeting duly called for this purpose.
Section 3. SPECIAL ASSESSMENTS FOR CAPITAL IMPROVEMENTS. In addition to the annual assessments authorized above, the Association may levy, in any assessment year, a special assessment, applicable to that year only for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair or replacement of a capital improvement upon the Common Area, including fixtures and personal property related thereto, provided that any such assessment shall have the assent of fifty-one percent (51%) of the votes of each class of members who are voting in person or by proxy at a meeting duly called for this purpose.
Section 4. NOTICE AND QUORUM FOR ANY ACTION AUTHORIZED UNDER SECTIONS 2 AND 3. Written notice of any meeting called for the purpose of taking any action authorized under Sections 2 or 3 shall be sent to all members not less than 30 days nor more than 60 days in advance of the meeting. At the first such meeting called, the presence of members or of proxies entitled to cast sixty percent (60%) of all the votes of each class of membership shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirement and the required quorum at the subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than 60 days following the preceding meeting.
Section 5. UNIFORM RATE OF ASSESSMENT. Both annual and special assessments must be fixed at a uniform rate for all Lots, except as set forth in Section 7 below, and may be collected on a monthly basis.
Section 6. DATE OF COMMENCEMENT OF ANNUAL ASSESSMENTS: DUE DATES. The annual assessments provided for herein shall commence as to all Lots within the Covered Property on the first day of the month following the conveyance of the Common Area. The first annual assessment shall be adjusted according to the number of months remaining in the calendar year. The Board of Directors shall fix the amount of the annual assessment against each Lot at least thirty (30) days in advance of each annual assessment period. Written notice of the annual assessment shall be sent to every Owner subject thereto. The due dates shall be established by the Board of Directors. The Association shall, upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the Association setting forth whether the assessments on a specified Lot have been paid. A properly executed certificate of the Association as to the status of assessments on a Lot is binding upon the Association as of the date of its issuance.
Section 7. ASSESSMENTS FOR UNDEVELOPED LOTS. The Association may provide for a reduced assessment to be paid by those Lot Owners whose property is undeveloped; provided, however, that the Owners of undeveloped Lots are assessed on a uniform basis. In collecting the assessment pursuant to this Section, the Association may consider credits towards those assessments for contributions “in kind” to construction, operation and maintenance of the Common Areas by the Owners of undeveloped Lots.
Section 8. EFFECT OF NONPAYMENT OF ASSESSMENTS: REMEDIES OF THE ASSOCIATION. Any assessment not paid within thirty (30) days after the due date shall bear interest from the due date at the same rate of interest charged by the VA or FHA for PUD residential loans on the due date. The Association may bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien against the property. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Area or abandonment of his Lot.
Section 9. SUBORDINATION OF THE LIEN TO MORTGAGES. The lien of the assessments provided for herein shall be subordinate to the lien of any first Mortgage. Sale or transfer of any Lot shall not affect the assessment lien. However, the sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding in lieu thereof shall extinguish the lien of such assessments as to payments which become due prior to such sale or transfer. No sale or transfer shall relieve such Lot from liability for any assessments thereafter becoming due or from the lien thereof.
ARTICLE V – ARCHITECTURAL CONTROL
No building, fence, wall or other structure or landscaping shall be commenced, erected or maintained upon the Properties; nor shall any exterior addition to or change or alteration therein be made until the plans and specifications showing the nature, kind, shape, height, materials and location have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Board of Directors of the Association, or by an architectural committee composed of three (3) or more representatives appointed by the Board. In the event said Board, or its designated committee, fails to approve or disapprove such design and location within thirty (30) days after said plans and specifications have been submitted to it, approval will not be required and this Article will be deemed to have been satisfied. Structures which are subject to architectural review shall include, but not be limited to: primary residence, fences, walls, barriers, outdoor swimming pools or spas, outside electromagnetic receiving/transmitting devices, solar collector and/or storage devices, storage of recreational vehicles such as motor homes, boats, and travel trailers. Swimming pools or spas which are freestanding or located above ground level are discouraged. Written application for review and approval of building plans may be submitted to the Board of Directors of the Hangar Haciendas Homeowners Association at the address on file with the Arizona Corporation Commission or in care of the Declarant.
ARTICLE VI – USE RESTRICTIONS
Section 1. RESIDENTIAL USE. All of the numbered Lots in Hangar Haciendas shall be known and described as single-family residential Lots. All structures placed on said Lots shall be of new construction and no buildings shall be moved from any other location onto any of said Lots.
Section 2. ANIMALS. No pigs, chickens, other fowl, nor any livestock other than common household pets are to be maintained on any Lot. No commercial boarding of animals is permitted on any Lot.
Section 3. BUILDING REGULATIONS. Each Lot shall comply with applicable local zoning rules and regulations, including but not limited to the building setback requirements. Compliance with such governmental regulations shall be in addition to compliance with the Architectural Review provided for in Article V of this Declaration. No Lot shall be used for residential purposes until a building permit has been issued by the local governmental authority and the sanitary waste disposal system for the Lot has been approved.
Section 4. HEIGHT. No structure exceeding twenty (20) feet in height shall be erected or permitted on any Lot.
Section 5. AREA. No dwelling house having living space of less than 1,800 square feet exclusive of open porches, pergolas or attached garage, if any, shall be erected on any Lot.
Section 6. SIGNS. No business of any kind or nature whatsoever shall be conducted from any residence on any Lot. No advertising signs (except for one “For Rent” or “For Sale” sign per Lot, not to exceed thirty-six inches by thirty-six inches) no billboards, unsightly objects or nuisances shall be erected, placed or permitted to remain on any of said Lots.
Section 7. VEHICLES. LIGHTING. No derelict vehicles shall be kept on any Lot, nor shall any large commercial vehicles be kept on or operated from the premises. The use of outdoor lights is discouraged, and if installed, they shall be designed in such a manner that no light shall illuminate adjacent property and lighting shall be in conformance with applicable local, state and federal regulations.
Section 8. AIRCRAFT FUELS. On-site storage of aircraft fuel in individual aircraft hangars, shelters or on individual Lots is prohibited.
Section 9. AIRCRAFT HANGARS. All aircraft hangars or shelters are subject to the architectural review provision of Article V herein. All such hangars or shelters constructed on a Lot shall be architecturally compatible with the primary structure on the Lot. All aircraft hangars must be constructed in conjunction with or subsequent to the construction of a residence. Hangars or aircraft shelters may be detached from or attached to a primary structure in accordance with local building regulations.
Section 10. AIRCRAFT REPAIR. No commercial aircraft repair business shall be permitted on a Lot. There shall be no storage of dismantled or disabled aircraft within the Lots or the Common Area. Aircraft being repaired and aircraft parts must be kept within an enclosed hangar building which has been approved pursuant to Article V of this Declaration.
ARTICLE VII – ANNEXATION
The Declarant, their heirs and assigns, shall have the right to bring within the scheme of this Declaration additional properties within the area described in the preliminary plat of record with the Maricopa County Planning and Development Department for Hangar Haciendas without the consent of the members.
Section 1. FORM AND TIME OF ANNEXATION. The annexation authorized pursuant to this Article shall be made by filing of record a Declaration of Annexation, or similar instrument, with respect to the additional properties which shall extend the scheme of this Declaration to such properties at the time of the filing. Such Declarations may contain such complimentary additions and modifications of the covenants and restrictions contained in this Declaration as may be necessary to reflect the different character, if any, of the added properties and as are not inconsistent with the scheme of this Declaration.
Section 2. DESCRIPTION OF THE PROJECT. (a) The maximum number of Lots to be brought within the Properties pursuant to this Section only is thirty-seven (37). The initial number of Lots is fourteen (14). (b) The Common Areas, upon completion of the project, may include all of Tracts B and C, inclusive, of Hangar Haciendas, according to the plat recorded on May 11, 1989, at Book 331 of Maps, Page 27 thereof, except any property dedicated to a governmental entity.
Section 3. ANNEXATION OF ADDITIONAL PROPERTY. Annexation of property to this project which is not a part of the current plan of development described above shall be permitted subject to the written approval of fifty-one percent (51%) of the votes of each class of members who are voting in person at a meeting duly called for this purpose.
ARTICLE VIII – EASEMENTS
Section 1. EASEMENT TO THE ASSOCIATION. There is hereby reserved and granted to the Association, its Architectural Review Committee, their agents and employees, such easements as are necessary to perform the duties and obligations of the Association as are set forth in this Declaration, the Articles, the Bylaws and the Rules of the Association.
Section 2. ACCESS EASEMENT. Access Easement shall mean and refer to an area identified on the recorded final plat which is owned by the Owners of the appurtenant Lots for ingress and egress and maintenance of such public utilities as are located within the Access Easement area for the benefit of the Owners of Lots, their respective families, guests, invitees and tenants and including refuse collection and emergency vehicle access. Construction, operation, maintenance and repair of the Access Easement shall be the responsibility of the Association.
Section 3. DRAINAGE EASEMENT. Drainage Easement shall mean and refer to an area identified on the recorded final plat which is owned by the Owners of the appurtenant Lots and runs over, across, under and through the Lots for the purpose of carrying drainage and runoff waters. No structure, fence, wall or plating which could impede the flow of runoff water shall be permitted within the Drainage Easement area. Maintenance of the Drainage Easement area shall be the responsibility of the Owner of each Lot through which the Easement area runs.
Section 4. PUBLIC UTILITY EASEMENTS. Public Utility Easement shall mean and refer to an easement over, under, through and across an area identified on the final recorded plat for the purposes of maintaining public utilities, including but not limited to, water, sewer, electric, telephone, cable television and natural gas.
Section 5. TAXIWAY EASEMENTS. Taxiway Easements shall mean and refer to an easement over, under, through and across an area identified on the recorded final plat for the purposes of aircraft ingress and egress from their Lots to Tracts B and C and for maintenance, repair and operation of said easement for the benefit of the Owners of the Lots appurtenant to said Taxiway Easements, their families, guests, invitees and tenants.
ARTICLE IX – MAINTENANCE
Section 1. BY THE ASSOCIATION. The Association shall maintain the Common Areas and certain easement areas including: Access Easements and Taxiway Easements.
Section 2. BY THE OWNERS OF LOTS. Each Owner shall be responsible for the maintenance and upkeep of the Owner’s entire Lot, including any improvements located thereon, and shall keep any Drainage Easement areas which cross the Owner’s Lot free of structures or debris which might impede the flow of water through the Drainage Easement area.
Section 3. FAILURE TO MAINTAIN. In the event any Owner of a Lot maintains his Lot or the improvements thereon in a manner which is unsafe or unsatisfactory to the Board of Directors of the Association, the Association, upon approval of two-thirds (2/3) of the Board of Directors, shall have the right, through its agents or employees, to repair, maintain or restore the Lot and any improvements erected thereon. The cost of such maintenance shall be added to and shall become a part of the assessment to which the Lot is subject. No interior maintenance shall be performed pursuant to this Article.
ARTICLE X – INSURANCE
Section 1. BY THE ASSOCIATION. The Board of Directors or its duly authorized agent shall have the right and power to obtain insurance to the extent reasonably available for all improvements on the Common Areas against loss or damage in an amount sufficient to cover 100 percent (100%) of the replacement cost of any repair or reconstruction work in the event of damage or destruction from any reasonable hazard, and shall also obtain a broad form public liability policy covering all Common Areas and activities of the Association. In the event of damage or destruction to property insured by the Association by fire or other casualty, the Board of Directors shall, upon receipt of the insurance proceeds, contract to rebuild or repair such damaged or destroyed portions of the property to as good condition as formerly enjoyed. In the event the insurance proceeds are insufficient to pay all costs of repairing or rebuilding of such destroyed improvement, the Board of Directors shall levy a special assessment against all Owners to make up such deficiency. In the event the insurance proceeds exceed the cost of repair, the excess proceeds shall be distributed to the respective Owners and Mortgagees as their interests appear.
Section 2. BY THE OWNERS. It shall be the individual responsibility of each Owner to provide, as he sees fit, insurance on the improvements on his Lot in the event of damage or destruction from all reasonable hazards. Each Owner shall provide as he sees fit homeowners liability insurance, theft and other insurance covering personal property damage or personal liability loss.
Section 3. AIRCRAFT LIABILITY INSURANCE. Every Owner or user of a licensed aircraft which is based on the Property shall provide the Association with a current Certificate of Insurance for aircraft liability. Failure to provide the Certificate of Insurance and to maintain such insurance shall result in the automatic suspension of the Owner or user’s right to use the Common Area.
ARTICLE XI – GENERAL PROVISIONS
Section 1. ENFORCEMENT. The Association shall have the right to enforce, by any proceeding at law or equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Failure by the Association to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.
Section 2. SEVERABILITY. Invalidation of any one of these covenants or restrictions by judgment or court order shall in no wise affect any other provisions which shall remain in full force and effect.
Section 3. AMENDMENT. The covenants and restrictions of this Declaration shall run with and bind the land, for a term of twenty (20) years from the date this Declaration is recorded, after which time, they shall be automatically extended for successive periods of ten (10) years. This Declaration may be amended during the first twenty t20) year period by an instrument signed by not less than fifty-one percent (51%) of the Lot Owners; and thereafter by an instrument signed by not less than fifty-one percent (51%) of the Lot Owners. Any amendment must be recorded.
Section 4. FHA/VA APPROVAL. Providing the Federal Housing Administration or the Veterans Administration has issued commitments to ensure one or more mortgages upon the Properties and as long as there is a Class B membership, the following actions will require the prior approval of the Federal Housing Administration or the Veterans Administration: annexation of additional properties, dedication of Common Area, and amendment of this Declaration of Covenants, Conditions and Restrictions.
Section 5. CONDEMNATION. Proceeds of any condemnation of the Common Area, or any settlement in lieu thereof, shall be paid to the Board of Directors, as Trustee for the Owners and Mortgagees. Such funds shall be applied, if possible, to restoring the Common Area to as near original condition as possible. Any excess shall be distributed to the Owners and Mortgagees as their interests appear.
Section 6. NOTICES. Any notice required to be sent to any Owner under the provisions of the Declaration shall be deemed to have been properly sent when mailed postpaid to the last known address of the person who appears as owner or member on the records of the Association at the time of mailing.