AMENDED DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
TUCSON PARK WEST NO. 3

· ARTICLE I - DEFINITIONS

· ARTICLE II - PROPERTY RIGHTS

· ARTICLE III - MEMBERSHIP AND VOTING RIGHTS

· ARTICLE IV - COVENANT FOR MAINTENANCE ASSESSMENTS

· ARTICLE V - ARCHITECTURAL CONTROL

· ARTICLE VI - RESTRICTIONS

· ARTICLE VIII - REVOCATION OF PRIOR DECLARATION

THIS DECLARATION made on the date hereinafter set forth by STEWART TITLE & TRUST of Tucson, a corporation, as trustee under Trust No. 1667, hereinafter referred to as “Declarant."

WITNESSETH:

WHEREAS, Declarant is the owner of certain property in the County of Pima, State of Arizona, which is more particularly described as:

TUCSON PARK WEST NO. 3, Lots 1 through 144 and Common Areas A, B, and C, Pima County, Arizona, according to the Map or Plat thereof of record in the office of the County Recorder of Pima County, Arizona, in Book 29 at Page 30 of Maps and Plats.

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 Tucson Park West No. 3 Association, its successors and assigns.

Section 2. "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 3. "Properties" shall mean and refer to that certain real property hereinbefore described, and such additions thereto which are included in the Tucson Park West No. 3 Subdivision as shown on the final plat thereof prepared by Osborn, Petterson and Walbert, Engineers, and designated No. CO-12-74-52 containing 144 lots, and Common Areas A, B, and C.

Section 4. "Common Areas" shall mean all real property 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 conveyance of the first lot is designated as Common Areas A, B, and C on the subdivision plat of Tucson Park West No. 3, according to the Map or Plat thereof of record in the office of the Pima County Recorder.

Section 5. "Lot" shall mean and refer to the numbered lots shown upon any recorded subdivision map of the Properties.

Section 6. "Declarant" shall mean and refer to STEWART TITLE & TRUST of Tucson, as Trustee under Trust No. 1667, its successors and assigns if such successors or assigns should acquire more than one undeveloped Lot from the Declarant for the purpose of development.

ARTICLE II

PROPERTY RIGHTS

Section 1. Members' Easements of Enjoyment. Every owner shall have a right and easement of enjoyment in and to the Common area and such easement shall be appurtenant to and shall pass with the title to each and every Lot. Such right and easement of enjoyment shall be subject to the following provisions:

(a) The right of the Association to adopt By-Laws and reasonable regulations to govern the use of any recreational facility situated upon the Common Area, and to govern the payment and collection of members' dues and assessments and penalties for non-payment of such dues and assessments.

(b) 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 signed by two-thirds (2/3) of each class of members agreeing to such dedication or transfer has been recorded; and any such dedication and transfer shall be subject to Pima County ordinances and zoning regulations which are then in effect.

Section 2. Delegation of Use. Any owner may delegate, in accordance with the By-Laws, his right of enjoyment to the Common Area and facilities to the members of his family, his tenants, or contract purchasers who reside on the property.

ARTICLE III

MEMBERSHIP AND VOTING RIGHTS

Section 1. 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.

Section 2. The Association shall have two classes of voting membership:

CLASS A. Class members shall be all Owners with 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 among themselves 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 (3) 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 April 1, 1981

ARTICLE IV

COVENANT FOR MAINTENANCE ASSESSMENTS

Section 1. Creation of the Lien and Personal Obligation of Assessments. The Declarant, for each Lot owned with 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 attorney's fees, shall be a charge on the land and shall be a continuing lien upon the property against which such assessment is made. Each assessment, together with interest, costs and reasonable attorney's 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 his successors in title unless expressly assumed by them.

Section 2. Purpose of Assessments. The assessments levied by 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. The Association shall have the responsibility of the maintenance, safety and liability of the Common Area; and shall also be responsible for payment of ad valorem taxes on property of the Association designated as Common Area.

Section 3. Maximum Annual Assessment. Until January 1 of the year immediately following the conveyance of the first Lot to the owner, the maximum assessment shall be:

TWENTTY-FOUR DOLLARS ($24.00) per Lot

(a) From and after January 1 of the year immediately following the conveyance of the first Lot to an Owner, the maximum, assessment may be increased each year not more than 3% above the maximum, assessment for the previous year without a vote of the membership.

(b) From and after January 1 of the year immediately following conveyance of the first Lot to an Owner, the maximum annual assessment may be increased above 3% by a vote of two-thirds (2/3) of each class of members who are voting in person or proxy, at a meeting duly called for this purpose.

Section 4. Special Assessments for Capitol 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 two-thirds (2/3) 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 5. Notice, Quorum and Vote for any Action Authorized Under Sections 3 and 4. Written notice of any meeting called for the purpose of taking any action authorized under Sections 3 or 4 of this Article IV shall be sent to all members not less than thirty (30) days nor more than sixty (60) days in advance of the meeting. At the first such meeting called, the presence of members or of proxies entitled to cast sixty per cent (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 fifty per cent (50%) of all the votes of each class of membership. No such subsequent meeting shall be held more than sixty (60) days following the preceding meeting.

Section 6. Uniform Rate of Assessment. Both annual and special assessments must be fixed at a uniform rate for all Lots and may be collected on a monthly basis.

Section 7. Date of Commencement of Annual Assessments: Due Dates. The annual assessments provided for herein shall commence as to all Lots on the first day of the month following the conveyance of the Common Area; provided, however, that Lot purchasers shall not be liable for delinquent assessments due from the Developer. 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 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 specific Lot have been paid.

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 rate of six per cent (6%) per annum. 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 became due prior to such sale or transfer. No sale or transfer shall relieve such Lot from liability for any assessment thereafter becoming due or from the lien thereof.

ARTICLE V

ARCHITECTURAL CONTROL

Section 1. No building, fence, wall or other. structure 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 of the same shall 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 the 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 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 fully coupled with.

ARTICLE VI

RESTRICTIONS

Section 1. Said premises are hereby restricted to residential dwellings for residential use. All buildings or structures erected upon said premises shall be of new construction and no buildings or structures shall be moved from other locations onto said premises, and no subsequent buildings or structures shall be built on any parcel where the builder theretofore programmed and constructed a dwelling. No structures of a temporary character, trailer, basement, tent, shack, garage, barn or other outbuildings shall be used on any portion of the premises at any time as a residence either temporarily or permanently.

Section 2. Notwithstanding any provisions herein contained to the contrary, it shall be expressly permissible for the Declarant, or any other builder designated by the Declarant, to maintain during the period of construction and sale of said homes, all such facilities as may be reasonably required incidental to the construction and sale of said homes, including a business and sales office, storage area, signs and model units.

Section 3. No animals, livestock or poultry of any kind shall be raised, bred, or kept on any Lot, except that dogs, cats or other household pets may be kept provided that they are not kept, bred or maintained for any commercial purposes.

Section 4. No advertising signs, (except one of not more than five (5) square feet, "for rent", or "for sale" sign per parcel), billboards, unsightly objects, or nuisances shall be erected, placed or permitted to remain on the premises, nor shall the premises be used in any way or for any purpose which may endanger the health or unreasonably disturb the Owner of any home or any resident thereof. Further, no business activities of any kind whatever shall be conducted in any building or in any portion of the promises. Provided, further, however, the foregoing covenants shall not apply to the construction and home sale activities, maintaining signs and bill- boards or the construction and maintenance of buildings, of the Declarant, its agents and assigns during the construction and sale period of said homes; nor to activities of the Association in furtherance of its powers and purposes as herein set forth.

Section 5. All clotheslines, equipment, garbage cans, service yards, woodpiles or storage piles shall be kept screened by adequate planting or fencing so as to conceal them from view of neighboring homes and streets. All rubbish, trash or garbage shall be regularly removed from the premises, and shall not be allowed to accumulate thereon. All clotheslines shall be confined to patio areas.

Section 6. No vehicle of any type which is abandoned or inoperable shall be stored or kept on any street or lot within this subdivision in such a manner as to be seen from any other lot or from any streets or alley ways within this subdivision.

Section 7. The common elements shall remain undivided, and shall at all times be owned by the Association or its successors, it being agreed that this restriction is necessary in order to preserve the rights of the Owners with respect to the operation and management of the common elements.

ARTICLE VII

GENERAL PROVISIONS

Section 1. Enforcement. The Association, or any Owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Failure by the Association or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver or 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 (20) year period by an instrument signed by not less than ninety per cent (90%) of the Lot Owners and thereafter by an instrument signed by not less than seventy-five per cent (75%) of the Lot Owners. Any amendment must be recorded in the office of the County Recorder of Pima County, Arizona, and must conform with the ordinances and zoning regulations of Pima County, Arizona, which are in effect at the time of such amendment.

Section 4. FHA/VA Approval. 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.

ARTICLE VIII

REVOCATION OF PRIOR DECLARATION

This amended Declaration, being duly made and adopted by the Declarant, which is the owner of more than ninety per cent (90%) of said lots, shall revoke and supersede the Declaration of Covenants, Conditions and Restrictions recorded in Book 5719 at Page 790 in the office of the Record of Pima County, Arizona.

IN WITNESS WHEREOF, the undersigned, being the Declaring herein, has hereunto set its hand and seal this 10th day of August 1978.

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