Loading...
HomeMy WebLinkAboutAPPLICATION & DOCS - 08-00449 - Trehusen Subdivision - 177 S 4th W - Preliminary Plata r Preliminary Plat City of Rexburg 12 North Center Phone: 208.359.3020 Rexburg, ID 83440 www.rexburg.org Fox: 208.359.3022 Application for Approval of Preliminary Subdivision Plat The attached Subdivision plan has been prepared in accordance with the Subdivision Regulations of the City of Rexburg, and the following items are shown on the plan or plans, or explanations given with respect thereto. Requirements for Preliminary Plats All Preliminary Plats shall be 24' x 36' foldable, drawn to scale, North point, dated. The following shall be shown on the Preliminary Plat or shall be submitted separately: 1. The name of the proposed subdivision: Trehusen Subdivision 2. The location 4th Vest / 2nd South Acreage .31 Number of Lots 3 Rct,� 3. The names, addresses and telephone numbers of the subdivider or subdividers and the engineer or surveyor who prepared the plat: Subdivider Name: Neal Smith Address: 111 Douglas Drive Rexbura, ID 83440 Phone Number: 419 -3680 Cell Number: 351 -9927 Engineer Name: Aaron Swenson Address: 350 N. 2nd E. Rexburg. ID 83440 Phone Number: 208 - 356 -9201 Cell Number: 208 -351 -3209 Surveyor Name: David C. Lee Address: 350 N 2nd E. Rexburg, ID 83440 Phone Number: 208- 356 -9201 Cell Number: 208 - 351 -1067 4. The name and address of all property owners within 300 feet of the external boundaries of the subdivision whether or not bisected by a public right -of -way as shown on record in the County Assessor's office. See Attached Drawing 5. The legal description of the subdivision. Beginning at the Southwest corner of Lot 2 in Block 3 of the South end Addition to the Rexburg Townsite, and running thence East 5 rods; thence North 10 rods; thence rest 5 rods; thence South 10 rods to the point of beginning. a 0 6. A statement of the intended use of the proposed subdivision such as: Residential - (single family, two- family and multiple housing); Commercial, Industrial, Recreational or Agricultural. Show sites proposed for parks, playgrounds, schools, churches or other public areas. Multit�le housing , town homes (3) 7. A map of the entire area scheduled for development if the proposed subdivision is a portion of a larger holding intended for subsequent development. 8. A vicinity map showing the relationship of the proposed plat to the surrounding area (1 /2 mile of minim radius, scale optional). 9. Streets, street names, rights -of -way, and roadway widths, including adjoining streets or roadways, curbs and sidewalks. 10. Lot lines and blocks showing the dimensions and numbers of each. 11. Contour lines, shown at five (5) feet intervals where land slope is greater than ten percent (10 1 /6) and at two (2) feet intervals where land slope is ten percent (10 %) or less, referenced to an established bench mark, including location and elevation. 12. Ag�y proposed or existing utilities including, but not limited to, storm and sanitary sewers, irrigation laterals, ditches, drains, bridges, culverts, water mains, fire hydrants, power, gas, street lights and their respective profiles and easements. 13. A copy of any proposed restrictive covenants and /or deed restrictions. (To be attached or submitted with final plat). 14. Any dedications to the public and /or easements, together with a statement of location, dimensions, and purpose of such. Please complete the following: (If not applicable, please fill in with N /A) 1. What is the land use and existing zoning of the proposed subdivision and the adjacent land? N&E, single family homes, honed medium density residential - SW -oned light industrial 2. Does subdivision conform to present zoning? 3. Requested zoning: N/A 4. Variance Requested: Yes No X (If yes, attach written request) 5. Requesting annexation to City? N/A QrEMS FOR CONSIDERATION* Probably impact of the proposed project on the environment effect on: a. Public safety and convenience Very little ffectgiven the side and location of development. b. Fire, police, and ambulance services Very little eectgiven the size and location of development. c. Recreation Little to no effect. d. Schools Could potentially add 2 -6 students to the near by elementary school. e. Displacement or relocation of people None. f. Land values Dill likely increase given adjacent structures (double wide trailers) g. Local and long - distance travel, i.e., highway and local road impact Very littleectgiven the side of development (3 families). h. Behavior of wildlife species Little erect due to urban area that project is proposed. i. Water quality and effect on underground water supply Consistent with new single family dwellings. j. Noise pollution Consistent with new single family dwellings. k. Air pollution Consistent with new singlefamiy dwellin gs. 1. Method proposed to dispose of storm drainage waters IYlill drain similar to singlefavty homes (into street side curb andgutters). m. Extent of increased city road maintenance, including snow removal None, no new roadways will be added. n. Flood plain — methods proposed to alleviate effect of 100 -year flood; effect on adjacent properties. Outside of 100 year flood plain. o. provisions for housing for persons of low and moderate income Target buyers will be moderate income persons p. Harmony with the character of surrounding developments IY/ill fzt in well with surrounding multi family dwellings 2. Probably adverse environmental effects which cannot be avoided a. Traffic Use Three additional driveways entering 4"' west. b. Rights -of -way required None. c. Pollution effect on existing environment Consistent with new single family dwellings. 0 0 3. Relationship between local short -term uses of man's economic environment and the long -term productivity. a. Existing vs. proposed tax base lYlilling to calculate if required. b. Costs to City if proposal approved (annual) IYlilling to calculate cost if required. 4. Measures taken to minimiz harmful effects on environment a. Effects of construction activities Best Management Practice forgiven construction b. Erosion control Best Management Practice forgiven construction c. Stream pollution prevention Best Management Practice forgiven construction d. Borrow -pit rehabilitation N/A e. Fencing As required by the City on the North and East side of development. f. Buffer zones In the form of setbacks as required by Rexburg City. g. replacement of parklands or farmlands None 5. Is this plat plan harmonious with and in accordance with the general objectives or with any specific objective of the City's Comprehensive Plan? Yes, in the comprehensive plan the preferred land use for this area is Moderate High Residential Density'. IF YOU HAVE ANY QUESTIONS, PLEASE CONTACT THE REXBURG PLANNING AND BUILDING DEPARTMENT Findings of Fact City of Rexburg 12 North Center Phone: 208.359.3020 Rexburg, ID 83440 www.rexburg.org Fax: 208.359.3022 OF g,E.XU CITY OF -1111-111-1 REX America's family Community Trehusen Subdivision— Preliminary Plat 1. On September 18 2008, Aarpm Swenson of Forsgrem & Associates presented to the Rexburg Planning & Zoning Coordinator a Request and Application for a Preliminary Plat for the Trehusen Subdivision at 4`' West and 2 "d South. 2. On Octiber 2, 2008, Neal Smith, developer of the Trehusen Subdivision, presented to the Rexburg Planning & Zoning Commission the Request for approval of the Preliminary Plat the Trehusen Subdivision. Dan Hanna motioned to recommend approval to City Council of the Trehusen Subdivision Preliminary Plat at 4` West and 2 "d South. Randall Porter seconded the motion. None opposed. Motion Carried. 3. On October 15, 2008 at City Council Neal Smith indicated they are targeting the elderly population with a three unit project single building. Each unit is about 1,366 square feet. This project is on 2.1 acres of MDR1 zoned land located at the NE Corner of 4`'' West and 2 "d South and it is a vacant lot facing the canal. Council Member Erickson said this is a real great upgrade to have 3 units with double parking garages facing west. There were no objections from the Planning and Zoning Commission. Council Member Mann moved to approve the Preliminary Plat for the Trehusen Subdivision; Council Member Stevens seconded the motion; all voted aye, none opposed. The motion carried. C� CO BYLAWS OF TREHUSEN OF REXBURG HOMEOWNERS ASSOCIATION City of Rexburg, Madison County, State of Idaho THESE BYLAWS are made this 19 day of the month of September, 2007, by TREHUSEN OF REXBURG HOMEOWNERS ASSOCIATION, a Idaho Non- Profit corporation, a planned development in the City of Rexburg, Madison County, State of Idaho. ARTICLE I BYLAWS BYLAWS — VOTING RIGHTS IN THE 1. Membership. Every Owner, upon acquiring title to a Unit, shall automatically become a member of the Association and shall remain a member thereof until such time as his' ownership of such Unit ceases for any reason, at which time hi membership ur the Association, with respect to such Unit, shall automatically cease and the successor Owner shall become 'a mexril%i `Membership in the Association shall be mandatory, shall be appurtenant to, and shall not be seuarafed from, the &wi shin of a Unit. 2. Voting Rights. The association shall initially have two classes of voting memberships, votes of both classes being of equal value�as to all matters excepts - for determining the presence or absence of a quorum at Association meetings, in which case suck determination shall'be made as if there were no Class B voting rights: a) Class A Each ✓ pwner, mcluchirg- Declarant, shall be a Class A member entitled to one vote for each Unit in which such tnemb,er hold the interest required for Association membership. b) Class B. Declarant shall betbe only person entitled to Class B voting rights which shall entitle Declarant to one vote for each Class A voting right outstanding at the time (including any to which Declarant is entitled). Class B rights shall terminate and become a nullity on the earlier office. i. The expiration of 90 days following the date on which the total outstanding Class A voting rights, other than those held by Declarant, equal the total number of Class B voting rights to which Declarant is entitled pursuant to the provisions of this Section 2; or ii. On December 31, 2015; or iii. Upon surrender of the Class B voting rights by Declarant in writing to the Association. • • Upon the termination of the Class B voting rights, all member, including Declarant, shall have equal voting rights as to all matters except as they may be limited in Section 4(d) of ARTICLE V in the CCNR Declaration. Multiple Ownership Interests. In the event there is more than one Owner of a particular Unit, the vote relating to such Unit shall be exercised as such Owners may determine between or among themselves, but in no event shall more than the total number of votes appurtenant to such Unit be cast with respect to any issue. A vote cast at any Association meeting, or by written consent by any of such Owners, whether in person or by proxy, shall be conclusively presumed to be the entire vote attributable to the applicable Unit unless an objection is made at the meeting, or in writing, by another Owner of the same Unit, in which even no vote will be counted with respect to such Unit except to determine the presence or absence of a quorum. Records of Ownership. Every Owner shall promptly cause to be duly filed of record in the Public Records the conveyance document (or in the case of contract buyer, a copy of the sales contract or notice of interest) to him of his Unit and shall file a copy of such conveyance document with the Secretary of the Association, who shall maintain a record of ownership of the Units. Any Owner who mortgages hi Unit or any interest therein shall notify the Secretary �4 of the Association of the name and address of the Mortgagee and also of the release of Mortgage; and the Secretary of the Association shall maintain all such information in the records of ownership. The Association may at any time obtain and rely on information from the Public Place of Meeting. Meetings of the Association shall be be designated by the Secretary of the Association in the ig the Owners and Mortgagees of Units. such suitableplace convenient to the Owners as may Annual Meetings. Annual meetings of the membership of the Association year 2007 on such month, day and time as set forth in the notice thereol,,pr, meeting, a month other than thexnonth of the initial meeting may be chose n more convenient. At s - Rhin meetings, there shall be elected Directors provisions of this Decla`r'ation, FinanciaTand budget reports shall also be pr business of the Association properly place efore each meeting . shall be held in each year beginning in the ovided, that after the first such annual "'fit is deemed by the memberships to be of, e Board, as needed, pursuant to the meetings as well as other 7. Special Meetings. The Pi dent shall k eali a special meeting of the Owners as directed by a resolution of the Board or on a petition signed by Owners holdm at least thirty percent (30 %) of the total votes of the Association having been presented to the Secretary. No busmei shall be tra sacted at a special meeting except as stated in the notice thereof unless consented to by fifty percent ($0 ° 0) or more of the Owzters present, either in person or by proxy. 8. Notice of Meetings. The Secretary shall mail anotice of each annual or special meeting stating the purpose thereof as well as the time and place of the meeting to each Owner of record at least 10, but not more than 20, days prior to such meeting. The mailing of notice prepaid U.S. Mai1,Htir by delivery in person, shall be considered notice served. 9. Quorum. Except as provided in Section 10 of ARTICLE III of this Declaration, Owners present in person or by proxy at any membership duly called pursuant to notice shall constitute a quorum at all meetings, both annual and special; provided, however, that such Owners collectively be entitled to cast at least forty percent (40 %) of the total Association votes eligible to vote. 10. Adjourned Meetings. If a meeting of Owners cannot be organized because a quorum is lacking pursuant to Section 9 of this ARTICLE, the Owners present, either in person or by proxy, may adjourn the meeting to a time not less than forty -eight hours from the time the original meeting was called, at which time the requirements for a quorum shall be reduced by one -half that required at the immediately preceding meeting. 11. Officers. The Association shall have a President, a Vice President, a Secretary and a Treasurer, all of whom shall be elected by and from the Board. The Board may appoint an Assistant Secretary and Assistant Treasurer, if needed. Only the offices of Secretary and Treasurer may be filled by the same person. The officers shall be elected by the • • Board in an organizational meeting of the Board immediately following each annual meeting of Owners at which the new Board are to be elected; provided that until Board members are elected by Owners pursuant to Section 13 of this ARTICLE< the officers will be appointed by Declarant. a) President. The President shall be the chief executive officer of the Association and shall preside at all meetings of the Association and of the Board. The President shall have all the general powers and duties that are usually vested in the office of president of a similar type association. b) Vice President. The Vice President shall take the place of the President and perform his duties whenever the President is absent or unable to act. If neither the President nor Vice President is able to act, the Board shall appoint some other member of the Board to do so on an interim basis. The Vice President shall also perform such other duties as shall frorrune to time be imposed on him by the board. c) Secretary. The Secretary shall keep the minutes of all'meetmgs o£the Board and the minutes of all meetings of the Association. The Secretary shall have charge of suer books and records as the Board G, >y may direct and he shall, in general, perform all duties incident to the office of secretary of a similar type association. d) Treasurer. The Treasurer shall have responsibility for Association funds and shall be responsible for keeping full and accurate accounts of all receipts and disbursements in books belorigmg�to the Associations. The Treasurer shall, responsible for the deposit of all money and any oflier valuable effects in the naive and to designated by the board. Association in such depositories as may from time to time be 12. Initial Composition of Board: Declarant Control. Dech may be composed of three members, none of whom nec the Board, Such right of the Declarant to appoint the Bf the termination of the Class B voting rights as provided to elect members of the Board in accordance with the A have the right to select the initial Board which the duties of the Board in place of shall remain in Declarant until 11.2(b) at 'which time the Association shall proceed 's Bylaws as set forth in section 13 of this 13. Boardl gfDirectors or Trustees Owner Control; Composition, Election, Vacancies. Subject to the provisions of Secti6n <12 of this ARTICLE, the Board shall be composed of five members, each of whom shall be an Owner (or an officer, director, or agent of a non individual Owner). At the first meeting of Owners to elect the Board, two members �< shall be elected to a three -year term, two to a two year term, and one to a one -year term. As members' terms expire, new members shall be elected for three -year terms and shall serve on the Board until their successors are elected. Vacancies on the Board shall be filled `b the remaining Board members from among the elected for the unexpired term of the member they were appointed replace. The Owners may increase tile number of Board members to seven at any meeting of Association meznliers at which such increase is properly places on the agenda and meeting notice. 14. Indemnification of Board. Each of the members of the Board shall be indemnified and held harmless by the Unit Owners against all costs, expenses, and liabilities whatsoever (excluding fraudulent and/or criminal actions) including, without limitation, attorneys fees reasonably incurred in connection with any proceeding in which such Board member may become involved by reason of being, or having been, a member of said Board. 15. Board Meetings, Quorum, Board Action. The Board shall establish rules for its meetings, whether regular or special. A majority of current Board members shall constitute a quorum. The action of a majority of those Board members attending a meeting at which a quorum is present shall be sufficient to constitute the action of the Board. Action by consent shall require the unanimous written consent of all current Board members. ARTICLE II BYLAWS — DUTIES AND POWERS OF THE ASSOCIATION Duties of the Association. The Association, through its Board, is responsible for the maintenance of any common Areas, the determination, imposition, and collection of Assessments, the enforcement of the provisions of this Declaration and , in general, the preservation of the residential quality and character of the Developments to the benefit and general welfare of the Owners. Without limiting any other duties which may be imposed upon the ti Association by its Articles, Bylaws, or the Declaration, the Association shall have the obligation and duty to do and perform each and every one of the following for the benefit of the Owners and the maintenance and improvement of the Development: a) Accept all Owners as members of the Association. d. b) Accept title to all Common Areas conveyed to it, whether by Declara&bi,by others, but may refuse if the same is not free and clear of lien and encumbrances. c) Maintain, repair and replace any structural Common Areas. d) In connection with its duties to..,--maintain and repair Common Areas, to provide maintenance and repair upon the exterior surfaces and roofs Qf the Condominium Units (and/or the buildings in which such units exists), and fences, including but not limited to, painting, staining, replacing, and caring for roofs, gutters, downspouts, exterior surfaces, window: casings; trim, fences and other exterior improvements except glass surfaces. e) To the extent not assessed to or paid by the Owners chrectly, pay all real property taxes and assessments levied upon any portion of the Common Areas; provided that the'Association shall have the right to contest of compromise any such taxes or assessments; and further, to make a..Specific Assessment to all Units and the Owners thereof for the total amount so levied" aud,paid by the Association. f) Obfain and mauLtain in force the policies of insurance required of it by the provisions of the Declaration. k q R The Associaiiom engage (but is not required to do so) a responsible corporation, partnership, firm, person, or other entity, as the Managing Agent to manage and control the Common Areas, subject at all time to direction by the Board, with such administratiye functions and powers as shall be delegated to the Managing Agent by the Board. The compensation of the Managing Agent shall'be.reasonable as specified by the Board. Any agreement appointing a Managing Agent shall be terminable by eithr,party, with or without cause and without payment of any termination fee, upon 30 days written notice thereof. Any-Matiaging Agent shall be an independent contractor. Powers and Authority of the Association. The Association shall have all the powers set forth in its Articles and Bylaws, together with its general powers as a nonprofit corporation, and the power to do any and all things which may be authorized, required or permitted to be done by the Association under and by virtue of the Declaration or the Bylaws. Without in any way limiting the generality of the foregoing, the Association shall have the following powers: a) At any time and from time to time, and without liability to any Owner for trespass, damage or otherwise, to enter upon any unit for the purpose of maintaining and repairing such Unit or any improvement thereon if for any reason the Owner fails to maintain and repair such Unit or improvement as required by the provision of the Declaration. The Association shall also have the power and authority from time to time in its own name, on its own behalf, or in the name and behalf of any Owner or Owners who consent thereto, to commence and maintain actions and suits to restrain and enjoin any breach or threatened breach of the • • Declaration, the Bylaws or any Rules and Regulations promulgated by the Board, or to enforce by mandatory injunction, or otherwise, all of the provisions of the Declaration, the Bylaws and such Rules and Regulations. b) In fulfilling any of its duties under the Declaration, including its duties for the maintenance, repair, operation or administration of the Common Areas and Units to the extent necessitated by the failure to do so of the Owners of such Units, or in exercising any of its rights to construct improvements of other work upon any of the Common Areas, the Association shall have the power and authority to obtain, contract and pay for: Construction, maintenance, repair and landscaping of the Common Areas on such terms and conditions as the Board shall deem appropriate; ii. Such insurance policies or bonds as the Board may deem appropriate for the protection or benefit of the Association, the members of the Board, and the Owners; iii. Such Common Area related utility ices as the Board may from time to time deem necessary or desirable; iv. The services of architects engineers, attorneys, certified public accountants, and such other professional or nonprofessionat services as the Board may deem desirable; V. Fire, police and such other protection Services as.tlie'Board may deem desirable for the benefit of the Owners or any portion of the Development; and vi. Such materials, supplies, equipment, services artAllabor as the Board may deem necessary. 3. Association Rules and RegrIa #ibn The Board from time to time, subject to andnot inconsistent with the provisions of the Declaration or the Bylaws, may "` t, amend, repeal and enforce reasonable Rules and Regulations governing, ,, among other things (a the se o the Common Areas; (b) the collection and disposal of refuse; (c) uses and nuisances pertaining to the Development; and (d) alt ocher matters concerning the use and enjoyment of the common Areas and the conduct of Owners and'their inviteeg wiCli the Development. These rules and regulations shall be made only as they would benefit the Develop��ilie 4. Limitation of Liability. No member of the Board, acting m good faith, shall be personally liable to any Owner, guest, tN . tenant, or any other person for any error or omission of the Association, its representatives and employees, the board, any committee of the Board, or the Managii *;Agent. ARTICLE III BYLAWS- ASSESSMENTS Personal Obligation and Lien. Each owner shall, by acquiring or in any way becoming vested with his interest in a Unit, be deemed to covenant with, and agree to pay to, the Association the Assessments described in this ARTICLE, together with late payment fees, interest and costs of collection, if and when applicable. All such amounts shall be, constitute, and remain: (a) a charge and continuing lien upon the unit the respect to which the Assessment is made until fully paid; and (b) the personal, joint and several obligations of the Owner or Owners of such Unit at the time the Assessment falls due. Now Owner may exempt himself or his unit from liability for payment of Assessments by waiver of his rights in the common Areas or by abandonment of his Unit, a voluntary conveyance of a Unit, the grantee shall be jointly and severally liable with the grantor for all unpaid Assessments, late payment fens, interest, and costs of collection, including reasonable attorney's fees, which shall be a charge on the Unit at the time of the • 0 conveyance, without prejudice to the grantee's right to recover from the grantor the amounts paid by the grantee thereof. 2. Purpose of Assessments. Assessments levied by the Association shall be used exclusively for the purpose of promoting the Development, the interests of the Owners therein, paying costs properly incurred by the Association, and the maintenance, operation and carrying of the Common Areas. The use made by the Association of funds obtained from Assessments may include, but shall not be limited to, payment of the Common Expenses and any expense necessary are desirable to enable the Association to perform or fulfill its obligations, functions or purposes under the Declaration, its Articles and Bylaws or the Rules and Regulations. 3. Annual Assessments. Annual Assessments shall be computed and assessed against all Units in the Development based upon advance estimates of the Association's cash requirements to ' for payment of Common Expense. 4. Annual Budget. Annual Assessments shall be determined on the basi "s'of a fiscal,year ending December 31; provided the first fiscal year shall begin on the date of recordation of this Declaration in thge.Public Records. On or before December 15 of each fiscal year, the Board shall prepare and furnish to each Owner and operating budget for the upcoming fiscal year. The operating budget for the first fiscal year shall be prepared arid' furnished to each Owner within 30 days of such Owner's initial purchase. The budget shall itemize the estimated cash requirements for such fiscal year, anticipated receipts, and any deficit or surplus from the prior operating period The budget shall serve as the supporting document for the annual Assessments for the upcoming fiscal year and as the major guideline under which the Development shall be operated'during such annual period. 5. Notice and Payment of Annual Assessments Ekcept with respect to the fiscal period ending December 31, 2008, the Association shall notify each Owner as to the amount of the Annual assessment against his Unit on or before December 15 of the year preceding the year for which such Anil al Assessment is made. Each Annual Assessment shall be payable in 12 equal monthly installments, each such instalhii&t:due on the first day of each calendar month during the fiscal year to which the annual Assessment.'elates, P*ovidedhat <the Annual Assessment for the first fiscal period shall be based upon such portion of such fiscal perio follows the recordation of the Declaration in the Public Records and shall be payable in such installments aiiii at such times as the Association, in the sole discretion of its Board, may determine. The failure of the Association to give,,timely notice of any Annual Assessment as provided r �- herein shall'not be�deeined a waiver of or modification in any respect of the provisions of the Declaration, or a release of" &ner from the to pay such Annual Assessment; or any other Assessment; but the date when the oavmesit;shall become due i `such case shall be deferred to a date 15 days after notice of such Annual Assessment shall have been given to the Ownerin the manner provided in Section 1 of Article IV of this Declaration. F; 6. Initial and Transfer Fees. Each Owner (other than Declarant), shall be required to prepay at the time of purchase of his Unit, whether as'a first time or subsequent Owner, the sum of $200, which sum shall be in addition to any proration of the AnnIual,Assessment wl rch may be due for the current fiscal year in which a new Owner purchases his Unit. Such fees shall become part o the Association's genera I fun to be utilized as necessary for payment of Common Expenses.` ` Maximum Annual Assessment. Until January 1 of the calendar year immediately following the conveyance of the first Unit and Owner, the maximum annual Assessment shall not exceed the amount per Unit that is determined by the Board pursuant to Section 4 of this ARTICLE. From and after January 1 of the calendar year immediately following the conveyance of the first Unit to an Owner, the maximum Annual Assessment may be increased by the Board each calendar year thereafter (non - cumulatively) by not more that fifteen percent (15 %) above the maximum Annual Assessment for the previous year, without the vote of Owners entitled to cast majority of the Association votes. 8. Special Assessments. The Association may levy Special Assessments for the purpose of defraying, in whole or in part: (a) any expense or expenses not reasonably capable of being fully paid with funds generated by Annual assessments; or (b) the cost of any construction, reconstruction, or unexpectedly required addition to, or replacement 0 0 of, infrastructure or improvements within the Common Areas. Any such Special Assessment shall be apportioned among and assessed to all Units in the same manner as Annual Assessments. Such Special Assessments must be assented to by at least sixty percent (60 %) of the votes of the membership which Owners present in person or represented by proxy are entitled to cast at a meeting duly called for such purpose. Written notice setting forth the purpose of such meeting shall be sent to all Owners at least 10 but not more than 30 days prior to the meeting date. Uniform Rate of Assessment. All Annual and Special Assessments authorized by Section 3 and 8 of this ARTICLE, respectively, shall be fixed at a uniform rate for all Townhouse Lots, at a uniform rate for all Condominium units, and at a uniform rate for all Detached Residential Units, if any, (having in mind the difference in common expense attributable to each category); provided, however, that no Annual or Special "I shall be due and payable until a Unit has been both fully improved with a completed unit and occugang,taken for the first time by and Owner or tenant. During the period of time that Declarant hold the Class B votmgTtgTlts in the Association, if assessed fees collected by the Association fail to adequately meet Association expenses; then Declarant shall pay any shortfall. 10. Quorum Requirements. The quorum at any Association meeting required forany action authorized by Section 8 of this ARTICLE, shall be as follows: AT the first meeting called, the presence of Owners or proxies entitled to cast sixty percent (60 %) of the total Association votes eligible to vote shall constitute a quorum. If a quorum is not present at the first meeting, or any subsequent meeting, another meeting may be called (subject to;tl?e notice requirements set forth in said Section 8 of this ARTICLE) at which the quorum requirement shall be one- h :1 /2) of the quorum which was required at the immediately preceding meeting. 11. Specific Assessment. In addition to the annual Assessment and any Special Assessment authorized'pursuant to Section 3 and 9 of this ARTICLE, the Board may luy at any time Specific Assessments (a) on every Unit especially benefited (i.e., benefited to a substantially gi t de ;",an any other Unit) by any improvement to adjacent roads, sidewalks, planting areas or other portions of the Common Areas made on the written request of the Owner of the unit to be charged; (b) on every Unit the Owner or occupant of whichAall cause any damage to the Common Areas necessitating repairs; and (c) on every Unit as to which the,' ssociation shall incur any expense for maintenance or repair work performed, or enforcement action taken, pursuant to any of the provisions of the Declaration. The aggregate amount of any such Specific Assessment shall die determined by the cost of such improvements, repairs, maintenance or enforcement action, iicluding all overhead aril administrative costs, and all attorney's fees and costs, and shall be allocated among the affected units according to thexnagnitude of special benefit, or cause of damage, or maintenance, or repair work, or enforcement action, as the case may be, and such Assessment may be made in advance of the performance of work. If a special benefit arises from any improvement which is part of the general maintenance or operation obligations of the Association, it shall not give rise to a Specific Assessment against the units benefited. 12. Certificate Regarding Payment. Upon the request of any Owner or prospective purchaser or encumbrance of a Unit, and upon the payment of a reasonable fee to the Association to cover administrative costs, the Association shall issue a certificate stating whether or not payment of Assessments respecting such Unit are current and, if not, the amount of the delinquency. Such certificate shall be conclusive in favor of all persons who rely thereon in good faith. 13. Effect of Nonpayment; Remedies. Any Assessment (whether Annual, Special, or Specific) not received within 10 days of the date on which it or any installment thereof becomes due shall be subject to a late charge not to exceed 5% thereof, which, together with interest and costs of collection, shall be, constitute, and remain a continuing lien on the affected Unit. If any Assessment is not received within 10 days after the date on which it becomes due, the amount thereof shall also bear interest from the due date at the rate of one percent (1 %) per month; and the Association may bring an action against the Unit pursuant to provisions of the Idaho Statutes applicable to the exercise of powers of sale in deeds of trust, by foreclosure as a mortgage, or in any other manner permitted by law. Any judgment obtained by the Association in connection with the collection of delinquent Assessments and related charges shall include reasonable attorney's fees, court costs, and every other expense incurred by the Association in enforcing its rights. Failure of the Association to promptly enforce any remedy granted pursuant to this Section 13 shall not be deemed a waiver of any such rights. 14. Subordination of Lien to Mortgages. The lien of the Assessments provided herein shall be subordinate to the lien of any Mortgage given in the first instance to a bank, savings and loan association, insurance company or other institutional lender, and the holder of any such Mortgage or a purchaser who comes into possession of or becomes the Owner of a Unit by virtue of the foreclosure, shall take free of such Assessment lien as to any Assessment installment which accrues or becomes due prior to the time such holder or purchaser comes into possession or ownership of such Unit; provided, that to the extent there are any proceeds of the sale on foreclosure of such Mortgage, or by exercise of such power of sale, in excess of all amounts necessary to satisfy all indebtedness secured by and owed to the holder of such Mortgage, the lien shall apply to such excess. No sale or transfer of a Unit in connection with any foreclosure of a Mortgage shall relieve any unit from the lien of any Assessment installment thereafter becoming due. 15. No Abatement. No diminution or abatement of any Assessments under the Declaration shall be claimed or allowed for inconvenience, annoyance, or discomfort arising from (a) any construction (or lack of construction) within the Development; (b) the making of (or failure to make) anyTepaars or improvements to, or the maintenance of, any common Areas of the Development; or (c) from any achan'taken to comply with the provision of the Declaration or with the laws, ordinances, regulations, rules, or order of any governmental authority. ARTICLE`TV, 1. Notices. Any notice required or permitted to be given to any Owner under the provisions of the Declaration shall be deemed to have been properlyTuntshed if delivered or mailed, postage prepaid, to the person named as the Owner, at the latest address for such person as reflected in the records of the Association of the time of delivery or mailing. Any notice required or permuted to be given -f the Association may be given by delivering or mailing the same to the Managing Agent or any officer or Board 'member of the Association or to the Association's Registered Agent as reflected in the Association's records at the,- office of the Secretary or the State of the State of Idaho. Any notice required or permitted to be given to th DRC may be given by delivering or mailing the same to the Managing Agent of the Association or any member of the bRC Amendment. This Declaration may be "Mended (as opposed t64erminated) by an instrument recorded in the Public Records, which is executed either by Owners who collectively hold at least sixty percent (60 %) of the total outstanding votes in the Association, or by theAssociation's President and Secretary, who shall certify that the required sixty percent (60 %) vote was obtained bi a;Member meeting, or by consent, and is so documented in the records of the Association. No amendment to any provision of this Declaration which has the effect of diminishing or impairing any right, power, authority, privilege, protection, or control accorded to Declarant (in its capacity as Declarant), shall be accomplished or effective unless the instrument through which such amendment is purported to be accomplished is specifically consented to in writing by Declarant. Consent of Lieu of Vote. In any case in which this Declaration requires for authorization or approval of a transaction the assent or affirmative vote of a stated percentage or number of votes outstanding in the Association, or of the Owners, such requirement may be fully satisfied by obtaining, with or without a meeting, consents in writing to such transaction from Owner entitled to cast at least the stated percentage or number of all votes then outstanding in the Association, unless a higher percentage or a greater number is required by law. The following additional provisions shall govern any application of this Section 3: a) All necessary consents must be obtained prior to the expiration of 90 days after the first consent is given by an Owner; b) The total number of votes required for the applicable authorization or approval shall be determined as of the date on which the last consent is signed; c) Any change in ownership of a Unit which occurs after a consent has been obtained from the Owner thereof shall not be considered or taken into account for any purpose; and d) Unless the consent of all Owners whose memberships are appurtenant to the same Unit is secured, the consent of none of such Owners shall be effective. 4. Declarant's Rights Assignable. All or any portion of the rights of Declarant under this Declaration, or in any way relating to the Development, may be assigned without the consent of any Ouix ers. 5. Interpretation. The captions pertaining to the ARTICLE and Section numbers of this Declaration are for convenience and shall in no way affect the manner in which any provision hereof zs construed. Whenever the context so requires, ;e the singular shall include the plural, the plural shall include the singular, and any,,gender shall include all genders. The invalidity or unenforceability (If any portion of this Declaration shall not aff ijbe validity or enforceability of the remainder hereof which shall remain in full force and effect. The Laws of the State.of Idaho shall govern the validity, construction and enforcement of this Declaration. 6. Condemnation. If at any time or times an insubstantial or minor part of the Common Areas or -any part thereof shall be taken or condemned by an authority.hav -g the power or eminent domain, all compensation and damages shall be payable to the Association and shall be used bythe Association to the extent necessary for restoring or`replacing any improvements on the remainder of the Comman'Areas In the event of any other taking or condemnation, the interest of the Association, the Owners and Mortgagees ha d4s-they may appear. 7. Covenants to Run with Land. This Declaration and 'ia7l the provisions hereof shall constitute covenants to run with the land, or equitable servitudes, as the case may be, and ,hall be buidrng union and shall inure to the benefit of Declarant, all parties who hereafter acquire any interest in a Umt, their respective grantees, transferees, heirs, devises, personal representatives, successors and assigns. Each Owner or 068u, ant of a Unit shall comply with, and all interests provisions of any Rules and regulations, agreements, instruments, and determinations contemplated by this Declaration By acquiring any interest in a Unit, the party acquiring such interest consents to, and agrees to be bound by, each'and every provision of this Declaration. 8. Enforc6ment of Restrictions The,,.Association, any Owner or any Mortgagee shall have the right to exercise or seek any remedy.at,law or inequity to,, interpret, to enforce compliance with, or to obtain redress for violation of, this Declaration T13e prevailing party in any such action shall be entitled to collect court costs and reasonable attorney's fees. 9. Duration/Termination." , uration / Termination. , this Declarations remain in effect until such time as there is recorded in the Public Records, following the approval of the City of Rexburg authorizing such termination, an instrument of termination which is executed by eighty percent ($05) of the total outstanding votes of the Association, plus the Mortgagee of each and every Unit. 10. Effective Date. This Declaration and any amendment hereto, shall take effect upon its being filed for record in the Public Records. Notary Public g at: Rexburg, Idaho 0 0 EXECUTED by Declarant on the day and year first above written. STATE OF IDAHO COUNTY OF MADISON TREHUSEN OF REXBURG HOMEOWNERS ASSOCIATION NEAL SMITH, PRESIDENT On the _ Day of , 2008, personally me NEAL SMITH, who being duly sworn, says that he is the PRESIDENT of TREHUSEN OF REXBURG HOMEOWNERS ASSOCIATIONS the Non - Profit corporation that executed the above and foregoing instrument and that said instrument was signed in behalf of said corporation by authority of its by -laws (or by authority of a resolution of its board of directors) and said NEAL SMITH acknowledged to xne that said corporations executed the same • 0 Declaration of Covenants, Conditions and Restrictions OF TREHUSEN OF REXBURG HOMEOWNERS ASSOCIATION City of Rexburg, Madison County, State of Idaho A Planned Development THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS is made this day of the month of , 2008, by BNS DESIGN & CONSTRUCTION, INC. in their capacity as the owner and developer a ,f'Prehusen of Rexburg, a planned unit development in the City of Rexburg, Madison County, Stake' of Idaho. The following terms this Declaration are listed shall have the following meanings: Act shall mean time. Additional Land s State of Idaho, set inium Ownership Act ( ? ? ? ?) as may be amended from time to any point in time, mean all of the land in the City of Rexburg, Madison County, nd described in Exhibit A, attached hereto and made a part thereof. Articles shall mean and refer to the Articles of In ... oxation of the Association, which are or shall be filed .... -. with the Secretary of State of the Sfate of Idaho, as they are`amended from time to time. Assessment shall mean the amount which is to be levied and assessed against each Owner and the Owner's Lot or Unit (whether an Annual, Special or Specific Assessment, as described in the Bylaws) and paid to the Association of Common expenses and other expenses. Association shall mean Trehusen Homeowners Association, LLC, an Idaho nonprofit corporation, its successors, and assigns, which shall own and manage the Common Areas. Each Owner shall hold and appurtenant membership interest in the Association, as set forth in the Bylaws. Board shall mean the Board of Directors of the Association Bylaws shall mean and refer to the Bylaws of the Association as set forth and embodied in this Declaration in ARTICLE XI, XII, and XIII. Common Areas shall mean all portions of the Development except the Units, and shall include all property to be owned by the Association for the common use and enjoyment of the Owners such as all private undedicated roadways, driveways, parking, recreation amenities, open appurtenant thereto, whether or not reflected on a Plat. 0 • DRC shall mean and refer to the Design Review Committee referred to in ARTICLE VII of this Declaration. Declarant shall mean BNS DESIGN & CONSTRUCTION, INC. their successors and assigns, if any, as developer of Development. Declaration shall mean this Declaration of Covenants, Conditions and Restrictions for Trehusen, a condominium development in the City of Rexburg, Madison County, State of Idaho, as the same may be supplemented or amended from time to time. Supplemental Declaration shall mean and refer to an instrument which supplements the Declaration and which is recorded in the Public Records concurrently with a Plat for a subsequent phase of the Development pursuant to the annexation provisions of ARTICLE III of this Declaration. This Declaration has been drafted to comply with the requirements of the Idaho Condominium Ownership Act ? ? ? ? ? ?, Idaho Code Annotated). Any ambiguities, omissions, and/or conflicts shall be construed to comply vu&the provisions of said act. Development shall mean the condominium development known as Trehusen in the City of Rexburg, Madison County, State of Idaho. Limited Common Area shall mean any Common Area designated for exclusive use.by the Owner of a particular Condominium Unit, whether or not designated as such on a Plat. Any Limited Com6n3.n.Areas that are identified on a Plat with the same number or other designation by which a Unit is identified thereon shatl'be Limited Common Area for the exclusive use of the Owner of the Unit bearing the same number or designation. Managing shall mean any person or entity appointed or engaged as Managing Agent of the Development by the Association. Mortgage shall mean any recorded first mortgage, or fiir.'st deed of trust encumbering a Lot or Unit; and mortgagee shall mean any mortgagee or beneficiary named sri� mortgage =,,., Owner shall mean any person who is the owner of record (as reflecteddii the Public Records) of a fee or undivided fee interest in any Lot or Unit, and any contract purchases of any 1 of or Uni' Notwithstanding any applicable theory relating to mortgages, no Mortgagee nor any trustee or benef ciary of a deed of trust or trust deed shall be an owner unless such party acquires fee title pursuant to foreclosure or' sale or conveyance in lieu thereof. Declarant shall be an Owner 'with respect,io each Lot or Unit owned by it. Multiple"owpers of a particular Lot or Unit shall be jointly and severally liable as to all and obligation of an Owiier. Plat shall mean and refer to a recorded subdivision plat within the Development. The initial Plat is entitled Trehusen Condomlrifuni„Townhome Develooment, Final Plat, an addition of the City of Rexburg, Madison County, Idaho, prepared and.certified by Aaron Swenson, ENGINEER OF PROJECT, executed and acknowledged by Declarant, accepted by the City,of Rexburg and_recorded in the Public Records concurrently with this Declaration. Property shall mean all'land covered by )his Declaration, including Common Area and Units, and other land amiexed to the Development as provided m this"De'elaration. The initial Property shall consist of the land describe in ARTICLE III Section I of the :Deelaration. Public Records shall mean the Office of the Madison County Recorder in Rexburg, Idaho. Rules and Regulations shall mean and refer to those Rules and Regulations authorized, adopted, and promulgated to the Owners from time to time by the Board pursuant to the provisions of section 1 of ARTICLE II in the BYLAWS Declaration. Unit shall mean a structure which is designated, constructed and intended for use or occupancy as a single family residence on a Lot, together with all improvements located on the same Lot and used in conjunction with such residence, including anything located within or without said Unit (but designated and designed to serve only that • 0 Unit) such as detached garage, patios, fences, decks, appliances, electrical receptacles, and outlet, air conditioning compressors and other air condition apparatus, if any. Condominium Unit shall mean an individual air space unit, consisting of enclosed rooms occupying part of a building and bounded by the unfinished surfaces of the floors, ceilings, windows, and doors along the perimeter boundaries of the airspace, as said boundaries are shown on the Map, together with all fixtures and improvements therein contained. Paint, sheetrock, all wiring in the unit that connects to the breaker box other than the incoming main line, plumbing and plumbing fixtures other than supply lines or vents, insulation, heat systems, and vents and other wall, ceiling, or floor coverings on interior walls shall be deemed to be part of the Unit. Notwithstanding the fact they may be within the boundaries of such air space, the following are not part of a Unit insofar as they are necessary for the support of or the use and enjoyment of any other Unit: Bearing Walls, exterior wall sheathing, floor joists and sheathing, roof trusses (except the interior surfaces thereof), foundations, footings, roof sheathing, shingles, felt, vents, siding, roek, porches and rail. The interior surfaces of a window or door mean the points at which such surfaces are'located when the window or door is closed. Article II s? STATEMENT OF PURPOSE AND EFFECTUATION 1. Purpose. The purpose of this Declaration is to provide for the preservation of the values of Lots, residential and Common Areas within Trehusen, a planned development in the City of Rexburg, Madison County, state of Idaho (the "Development "), and for the maintenance of the private roadways, driveways, sidewalks, `paiking, amenities, open spaces, landscaping, trees and all other Common Areas therein. 2. Effectiveness. From and after the effective date hereof: (a) each part of the Development and eachlo t and unit lying within the boundaries of the Development shall constitute constituent parts of a single planned residential development; (b) the Development shall consist of the units and of the Units and of the Common Areas which are described and shown on the mmtiaLPlat, together with such additional Lots, Units, and Common Areas as may come into need pursuant to the'provl §i ©ns hereof relating to annexations or expansion of the Development; (c) the declaration for the Development and any annexation thereto shall consist of this document as the same may be modified, amended, supplemented, or expanded in accordance with the provisions hereof, and (d) the initial Plat of development shall consist of the instrument hich is identified as Trehusen Planned Unit Development, Final Plat, an addition of the City of Rexbuig, Madison County, Idaho, recorded concurrently with this Declaration in the Public Records, as the same may be thereafter mended" and any subsequent plats which maybe filed for record pursuant to the provisions hereof relating to" annexation or expariaion= Development. 3. Submission to Condominium Act. The Declarant hereby submits the Land, the buildings, and all other improvements now or hereafter made in o?" on the land to the provisions of the Condominium Act. All of said property is and shall be held, conveyed, hypothecated, encumbered, leased, rented, used, and improved as a fee simple Condominium Project to be known as Trelipsen Planned Unit Development, an Idaho Condominium Project. All of said property is and shall be subject to the covenants, conditions, restrictions, uses, limitations, and obligations set herein, each and all of which are declared and agreed to be for the benefit of said Project and in furtherance of or for improvement of said property and division thereof into Condominiums further, each and all of the provisions hereof shall be deemed to run with the land and shall be a burden and a benefit on the land and shall be binding upon the Declarant, its successors and assigns, and to any person acquiring, leasing, or owning an interest in all property and improvements comprising the Project, and to their respective personal representatives, heirs, successors, and assigns. ARTICLE III PROPERTY DESCRIPTION AND ANNEXATION 1. Submission. The Property which initially is and shall be held, transferred, sold, conveyed, and occupied, in to the provisions of this Declaration, consists of the following described real property in the City of Rexburg, Madison County, State of Idaho: 0 0 SEE LEGAL DESCRIPTION ATTACHED HERETO AS EXHIBIT "A" Together with all casements, rights -of -way, and other appurtenances and rights incident to, appurtenant to or accompanying the above described parcel of real property, whether or not the same are reflected on the Plat. Reserving unto Declarant, however, such easements and rights of ingress and egress over, across, through and under the said property and any improvements ( including buildings) now or hereafter constructed thereon as may be reasonably necessary for Declarant (in a manner which is reasonable and not inconsistent with other improvements described in this Declaration or in a Plat, and to do all things reasonably necessary or proper in connection therewith; (ii) to construct and complete on the Additional Land, or any portion thereof, such improvements as Declarant shall determine to build in its sole discretion ( and whether or not the Additional Land or any portion thereof has been or hereafter will be added to the Development); and (iii) to improve portions of the said property with such other or additional improvements, facilities, or landscaping design for the use and enjoyment of all the Owners as Declarant may reasonably determine to be appropriate. If, pursuant to the foregoing reservations, the said property or any improvement, egress, or utility line, a perpetual easements, the reservations herby effected shall, unless sooner terminated in accordance with their terms expire ten (10) years after the date on which this Declaration is recorded in the Public Records. All of the foregoing is subject to all liens for current ,anel t'utbie taxes, assessments, and charges imposed or levied by governmental or quasi - governmental authorities all Patent reservations and exclusions; all mineral reservations of record and rights indigent thereto; all instruments of r d which affect the above - described real property or any portion thereof, including, without limitation, any mortgage =(,and nothir(g rn.this paragraph shall be deemed to modify or amend such mortgage); all visible easements and rights of rvay, all easements and rights -of -way, encroachments, or discrepancies shown on, or revealed by, a Plat or otherwise exrsttng " "an easement for each and every pipe, line, cable, wire, utility line, or similar facility which traverses or partially becupies the said real property at such time as construction of all Development improvements is complete, and all casements necessary for ingress to, egress from, maintenance of, and replacement of all such pipes, lines, cable, wires, utility 'lines and similar facilities; and to each of the easements, covenants e6ndifi6n9, ,`and restrictions contained in the Declaration. 2. Division into Lots d Units. TheTDevelopment is hereby divided into 1 Lot and,3 Units as set forth and described on the Developments Plat, being these condominium units and all other units being planned 3 -plex Townbome lots, with appurtenant obligations pertaining to Assessments, maintenance, insurance, etc. , unless otherwise set forth in this Declaration. VI OBLIGATION OF OWNERS 1. Maintenance and Repairs. Each Owner shall at bis own cost maintain his Lot or Unit and any improvements (i.e. Townhouse unit or Condominium Unit) constructed thereon in good condition and repair at all times; provided however, that Townhouse Unit exteriors, roofs, and fences shall be maintained by the Association as provided in Section 1(d) of ARTICLE II or the BYLAWS Declaration. In the event of the damage or destruction of any Unit, the Owner of the Lot upon which such Unit is situated shall either rebuild the same within a reasonable time or shall raze the remains thereof so as to prevent the unsightly appearance and dangerous condition of a partially destroyed structure in the Development. The painting or repainting, remodeling, rebuilding, or modification of a Unit exteriors or parts thereof must be submitted to and approved by the DRC pursuant to its procedures. Notwithstanding the obligations of the Association to maintain Unit exteriors, roofs, and fences as provided herein, no Owner of such Units shall openly or wantonly neglect or fail to do all within such owner's power to help keep such items in good and attractive condition at all times. 2. Insurance. Notwithstanding any insurance coverage required to be provided herein by the Association, each Unit Owner shall procure and maintain in force hazard insurance on personal contents, and liability coverage as is customary in projects such as the Development and which is consistent with each such owner's individual circumstances. Owners of Detached Residential units, if any, shall procure at their expense, and shall maintain in force, hazard insurance on their • particular Unit, and contents and personal liability coverage as is customary in projects such as the Development and which is consistent with each Owner's individual circumstances. 3. Assessments and Rule Observance. Each owner shall be responsible for the prompt payment of any Assessments provided for in this Declaration, and for the observance of the Rules and Regulations promulgated by the Association's Board from time to time. Owners in violation of the provisions of this Section 3 will not be deemed to be in good standing for Association voting purposes. 4. Transfer of Interests. Except for obligations already accrued, an Owner who, for other than purposes of security, transfers all of his interests in his Lot or Unit to another, either voluntarily or by operation of law, shall be relieved of all obligations under this Declaration following such transfer. ARTICLE V PROPERTY RIGHTS AND 1. Easement Concerning Common Areas. Each Lot or Unit shall have appurtenanfthereto a nonexclusive right and easement of use and enjoyment in and to the Common Areas for their intended purposes. Such right and easement shall be appurtenant to and shall pass with title to each Lot or Unit and shall in no eventrbe ,separated there from. 2. Form of Conveyance. Any deed, lease, mortgage, deed of trust, purchase contract or other instrument conveying or encumbering title to a Lot or Unit shall describe the interest or estate involved substantially as follows: Lot Block_ as identified in official Plat4of Madison County, State of Idaho, recorded m O 20 . SUBJECT TO the Declaration of Easerf Rexburg Homeowners Association, recorded in said Declaration may have heretofore been amen use and enjoyment in and to the Common Areas Covenants, Conditions and Restrictions (as said Planned Unit Development, Phase _, City of Rexburg, dison County Recorder as Instrument No. — on pants, Conditions, and Restrictions of Trehusen of of theMadison County Recorder as Instrument No. _ (as ), TOGETHER WITH a right and easement of s ancT as provided for, in said Declaration of Easements, njnay have heretofore been amended or supplemented). Whether or nofthe description employed in any such instrument is in the above specified form, however, all provrstons this Declaration shall be binding upon and shall in ure, to the benefit of any party who acquire any interest in a Lot or Unit. 3. Transfer of Title to Cormnon Areas.,As soon as possible following the recordation of this Declaration and the initial Plat, Declarant hall convey to the Association title to the various Common areas described in such Plat, free and clear of any lien §:other than the lien of, current general taxes and the lien of any non - delinquent assessments, charges or taxes imposed by.gouernmental or du - governmental authorities. The same procedure shall be followed with respect to the Common" :Areas contamedJn subsequent Plats following their concurrent recordation with accompanying Supplemental Declarations'in the Public Records. 4. Limitation on Easement. Each )_sat or Unit's appurtenant right and easement of use and enjoyment of the Common Areas shall be subject to the following: a) The right of the Association as provided in Section 2 or ARTICLE II in the BYLAWS Declaration, to govern by reasonable Rules and Regulations the use of the Common Areas so as to provide for the enjoyment thereof in a manner consistent with the collective right of all of the Owners; b) The right of the City of Rexburg, Idaho, and any other governmental or quasi - governmental body having jurisdiction over the Property, to enjoy access and rights of ingress and egress over and across any private 0 0 street or driveway, parking area, walkway, or open area contained within the Common Areas for the purpose of providing police and fire protection and providing any other governmental or municipal service; and c) The right of the Association to dedicate or transfer any part of the Common Areas to any public agency or authority for such purposes and subject to such conditions as may be agreed to by the Association; provided that such dedication or transfer must first be assented to in writing by (I) the Mortgagee of each and every Mortgage that encumbers any Lo or Unit and (ii) the Owners of Units to which at least sixty percent (60 %) of the total votes in the Association appertain. The assenting provisions of this Section 4, shall only apply to the Mortgagees and Owners of Detached Residential Lots, if any, if the Common Areas in question are the Clubhouse and enmities hereto. 5. Utility Easements. Each Lot or Unit is subject to appurtenant under and through such portions of the Common Areas as are any Owner utilizes such easement rights with respect to his Li its former state of any portion of the Common Area which rra 6. Easements for Encroachments. If any structure or Unit constructed on any Lot to which this section 6 applies,:} improvement previously located thereon (so long as suc configuration an location as such prior structure or impr Unit or upon any portion of the Common Areas, a valid nts,'f6r ,underground lines for utility purposes sed:of roads, walkways and landscaped areas. If Pt, fie`shall be responsible for the restoration to been di' trirbed or damaged as a result. ment (including with or not constructed in or improvement is in now or. ":hereafter encr( imitation, roof overhangs) 6cement of the structure or 3ubsiantially the same aches:upon any other Lot or and thereof, so long as it continues, shall exist. If any structure (includmk' fliout limitation, roof overhangs) on any Lot shall be partially or totally destroyed and then rebuilt in a manner 1' ded to substantially duplicate the location and configuration of the structure so destroyed, minor encroachments of such; structure upon any other Lot or Unit or upon any portion of the Common AreAS due to the reconstructed structure's being m a slightly different location than its predecessor shall be permrtite&t end valid easements for such encroachments and the maintenance thereof, so long as they continue, shall exist_ - ARTICLE VI 1. Use of Common Area. nature and with the use only in a manner consistent with their community to Units stTforth in this Declaration. 2. Residential Use. The Property is zoned.far,and restricted to single family residential use pursuant to applicable zoning ordinances of the City of Rexburg mach Lot or unit and Owner is subject to the uses and restrictions imposed by such zoning, including, but not limited to occupancy and parking restrictions. No Lot or Unit shall be used, occupied, or altered in violation of such ordinances so as to create a nuisance or to interfere with the rights of any other Owner. 3. Prohibited use and Nuisances. The following uses and practices are specifically prohibited, in addition to any additional prohibitions which may, from time to time, be adopted by the Board pursuant to Section 3 of ARTICLE II of the BYLAWYS Declaration: a) No unit or any part thereof shall be used or occupied by any persons not coming within the definition of "Family" as such term is defined and intended in the zoning ordinances of the City of Rexburg as of the date hereof. b) No lease of any Unit shall be for less than the whole thereof. 0 9 c) No animals, livestock, or poultry of any kind shall be permitted on any Lot or within any unit except such domesticated household pets or birds as are allowed pursuant to the Rules and Regulations, including lease laws, adopted by the Board pursuant to Section 3 or ARTICLE II of the BYLAWS Declaration. d) No parking of vehicles of any kind on the streets, private drives or parking areas within the Development shall be permitted except as set forth in rules and Regulations adopted by the Board pursuant to Section 3 of ARTICLE II of the BYLAWS Declaration. e) No outside television or radio aerial or antenna, satellite dish or other similar device for reception or transmission shall be permitted on any Lot or the exterior of any Unit except pursuant to written approval of the DRC pursuant to Rules and Regulations adopted by the Board pursuant to Section 3 of ARTICLE II of the BYLAWS Declaration. f) No unit within the Development shall (I) contain any coal or wood - burning fireplace, stove, or other similar device unless the same is EPA app;ovpd or unless such fireplace, stove, or other device is fueled by natural gas only; or (ii) contains a sw 1. Design Review Committee, The Board of Directors of the Associanori.shall appoint a three - member Design Review Committee (the "DRC "), the function of which shall be to ensure that all improvements and landscaping within the Development harmonize with existing surrounding and structures. The DRC' need not be composed of Owners. If the DRC is not appointed, tlfe 3' "'itself shall perform the duties required of tfi "DRC. 2. Submission to DRC: Except for original'construction by Declarant, no Unit or accessory of or addition to a Unit which is visible from the Common Areas, s i be constructed or maintained, and no alteration, repainting or refurbishing of the exterior of -any Umtshall be performed, unless compete plans and specifications hereof have first been submitted to and aivroved;bv the DRC "� , Standard. In deciding whether to approve or disapprove plansand specifications submitted to it, the DRC shall use its best judgment to insure that all improvements, construction, landscaping, and alterations on Units within the Development conform to and harmonizes' ,existing surroundings and structures. Any structure hereafter constructed on any Lot or Unit in replacement ofthe structure previously located thereon shall be constructed in substantially the same configuration, location, and architectural style and be approximately the same size as the prior structure; and if the plans and specifications thereof meet such criteria, the DRC must approve the same. 4. Approval Procedure. Except as provided in Section 3, any plans and specifications submitted to the DRC shall be approved or disapproved by it in writing within 30 days after submission. In the event the DRC fails to take any action within such specified period, it shall be deemed to have approved the material submitted except in those respects to which such material is not hi- conformity with the provisions of this Declaration, as to which respects it shall be deemed disapproved. Detached Residential Unit. Detached Residential units constructed on Detached Residential Lots, if any, shall meet the minimum size requirement, exclusive of garages, decks, patios, or basements (if any) to be determined by the Board. Quality of building materials, color schemes, and landscaping plans shall be as required by the DRC. 6. Construction. Once begun, any improvements, construction, landscaping, or alterations approved by the DRC shall be diligently pursued to completion. If reasonably necessary to enable such improvement, constriction, landscaping, or • 0 alteration, the person or persons carrying out the same shall be entitled to temporarily use and occupy portions of the Common Areas in the vicinity of the activity, provided that they shall promptly restore such areas to their prior condition when the use thereof is no longer required. 7. Liability for Damages. Neither the DRC nor any member thereof shall be held liable for such damages by reason of any action, inaction, approval, or disapproval taken or given without malice by such member or the DRC with respect to any request made pursuant to this ARTICLE VII. Declarant's Obligation. Declarant hereby covenants in favor of each Owner (A) that all Units to be erected by it and all improvements of the Conunon Areas to be accomplished by it in the Development will be architecturally compatible with respect to one another; and (b) that on the date on which thzs "Declaration is filed for record in the Public Records all Lots, Units and Common Areas of the Development will be located approximately in the locations shown on the applicable plat. ARTICLE INSURANCE Hazard Insurance. The Board shall procure and maintain from a company or companies holding a financial rating of Class A or better from Best's Key Rating Guide, a policy or policies of hazard insurance in an amount or amounts equal to or exceeding the full replacement value (exclusive of the vale o land, foundations, excavation and other items normally excluded from coverage) of the`Common Areas owned by the Association and of all the Townhouse and Condominium Units (and/or buildings in which suC the like), but not the contents thereof, and all Tools, surf; of any definition thereof in this ARTICLE VIII),Vvilh an or an Inflation Guard Endorsement, and such other endo reasonable. Such insurance policy or policies shall name their interest appear, and shall afford protection, to the e a) Loss or damage by fire and other hazards mischief, wind storm, and exist, including all building service equipment, if any, and s, and structures comprising Townhouse Units (regardless ;reed Amount Endorsement, or its equivalent, if available, , 0,,6 as „the Board may deem to be warranted and e Association"-as insured for the benefit of the Owners as cable against,at least the following: standard extended coverage endorsement, and by mane: and Such other risks'as re customarily covered with respect to facilities similar in construction, location and use. 2. Liability Insurance. The Board shall „procure and maintain from a company or companies holding a financial rating of Class A or beftprfrom Best's Ke y Rating Guide a policy are policies of public liability insurance to insure the Association, the Board, the Managing-Agent and employees of the association and the Owners against claims for bodily injury and property damage arising out of the conditions of the Common Areas, or activities thereon, under a comprehensive general liability form. Such insurance shall be for such limits as the Board may decide, but not less than those limits customarily earried'iti connection with properties of comparable character and usage in Madison County, Idaho, nor less than $T 004,06 for personal injury and property damage arising out of a single occurrence, such coverage to include protection,against water damage liability, liability for non -owned and hired automobile, liability for the property of others, and such other risks as shall customarily be covered with respect to property similar in construction, location and use. The policy shall contain a "Severability of Interest” endorsement which shall preclude the insurer from denying the claim of any Owner because of negligent acts of the Association or other Owners, and a cross - liability endorsement pursuant to which the rights of the named insured as between themselves are not prejudiced. The policy shall prove that the policy may not be canceled or substantially modified by the insurer unless it gives at least 30 days' prior written notice thereof to each insure. Any such coverage procured by the board shall be without prejudice to the right of the Owners to insure their personal liability for their own benefit at their own expense. • 0 Additional Insurance and Further General Requirements. The Board may also procure insurance which shall insure the Common Areas and the Association or the Owners and others against such additional risks as the Board may deem advisable. Insurance procured and maintained by the board shall not require contribution from insurance held by any of the Owners of their Mortgages. Each policy of insurance obtained by the Board shall, if reasonably possible provide: a) A waiver of the insurer's right of subrogation against the Association, the Owners, and their respective directors, officers, agents, employees, invitees, and tenants. b) That it cannot be canceled, suspended, or invalidated due to the conduct of any particular Owner or Owners; c) That it cannot be canceled, suspended, or invalidated due to the conduct of the Association without a prior written demand that the defect be cured; and d) Than any "no other insurance" clause therein shallmot apply with respect to insurance maintained individually by any of the Owners. Fidelity Coverage. The Association may elect to maitit n' fidelity coverage to protect against dishonest acts on the part of officers, trustees, managing agents, directors, andemployees of the Association and all others (including volunteers) who hand, or are responsible for handling, funds of the Association. In that event, such fidelity bonds shall: a) Name the Association as an obligee; b) Be written in an amount,based upon the best business judgment of -the Association and shall not be less than the estimated ,rnaiijjiurn of:funds (including reserve funds) in the custody of the Association or the Mana m A e�lt.at an g iven time during the term of each bond but in no,even be less than a sum e qual to g g g,. Y g g q three months' assessment on all Units plus reserve funds; c) Contain waivers of.:any defensebased upon the exclusion of volunteers or persons who serve without compensation from any definition of "employee" or similar expression; and d) Proved that they may not be oanceled or substantially modified (including cancellation for nonpayment of premium) without at least 30 days' ,prior written notice to the insured. Review of Insurance. The Board shall periodically, and whenever requested by Owners entitled to exercise at least twenty percent (20 %) of the outstanding votes in the Association, review the adequacy of the Association's insurance program and shall report in writing the conclusions and action taken on such review to the Owner of each Unit and to the holder of any Mortgage on any Lot or Unit who shall have requested a copy of such report. Copies of every policy of insurance procured by the Board shall be available for inspection by any Owner and any Mortgage. 6. Other Insurance Provisions. All insurance required pursuant to this ARTICLE VIII shall be written by insurers licensed in the State of Idaho. Notwithstanding anything in this ARTICLE VIII to the contrary, any insurance required to be obtained by the Association pursuant to Sections 2, 3, or 4 of this ARTICLE VIII shall be required only to the extent that such coverage is reasonably obtainable at reasonable rates and is customarily obtained with respect to improvements or facilities having the same or similar characteristics of the Common Areas and Townhouse Units or risks being insured. Insurance on Detached Residential Units. Owners of Detached Residential Units, if any, shall procure at their sole cost and expense, and shall maintain in force, hazard insurance on their particular Unit and contents and personal 0 • liability coverage as is customary in projects such as the Development, and which is consistent with each such Owner's Individual circumstances. 8. Condominium Units: Owners Contents Policies. Condominium Unit Owners shall be responsible to purchase and maintain in force a condominium owner type contents policy (State Farm HO6 or equivalent) with respect to their individual Units. All claims for damage to any such unit must first be submitted by the Owner to his insurer and his contents policy. The Board shall not be required to submit claims under any of its Development policies required by this Declaration for any damage or liability claims that should or would have been covered under an Owner's contents policy. ARTICLE IX RIGHTS OF MORTGAGES Title and Mortgagee Protection. A breach of any of the covenants. Provisions or requirements of this Declaration shall not result in any forfeiture or reversion of title, or of' arty :,of her interest in a Lot or Unit, or any other portion of the property. A breach of any of the covenants, provistons, or requirements of this Declaration shall not defeat, impair, or render invalid the lien of, or other rights under; any, Mortgage. Unless and until it enters into possession, or acquires title pursuant to foreclosure, or any arrangement or proceeding in lieu thereof, any Mortgagee interested under any Mortgage affecting a Lot or Unit or any other portion of the Property shall have no obligation to take any action to comply with, and may not be compelled to take any acxlon.4o oomply with, any of the covenants, provisions, or requirements of this Declaration (other than those, if any, concerning a consent or approval to be given by a Mortgagee if such Mortgagee's failure to do so is wrongful.) No amendment to this Declaration shall in any way affect the rights of any Mortgagee named in a Mortgage which is to effect;at the time of the amendment, or the rights of any successor in interest or title such Mortgagee, either before or after such Mortgagee or its successor enters 3 into possession or acquires tttlepursuant to foreclosure, or any arrangement orrceeding in lieu thereof, unless such Mortgagee has consented t' % writing to -such amendment. 2. Preservation of Comnidri Area. The Common Area shall remain substantially the same character, type and configuration as when such Common Areas became part of the Development. Unless the Association shall receive the prior written approval of (a);rll first Mortgagees of Units and (b) at least two thirds (213) of the outstanding votes in the Association, the Association 3hall''not be entitled by act or omission to abandon, partition, subdivide, encumber, sell, transfer, or materially modify the GQtnmon Areas, except grant reasonable easements for utilities and similar related purposes. Notice of Matters Affecting Security. The Association shall give written notice to any Mortgagee of a Lot or Unit requesting such notice whenever: a) There is any material default by the Owner of the Lot or Unit subject to the Mortgage in performance of any obligation under this Declaration, or the Articles of the Association, which is not cured within 60 days after default occurs; or b) Damage to the Common Areas from anyone occurrence exceeds $10,000; or c) There is any condemnation or taking by eminent domain of any material portion of the Common Areas. 4. Notice of Meetings. The Board shall give to any Mortgagee of a Lot or Unit requesting the same, notice of all meetings of the Association; and such Mortgagee shall have the right to designate in writing a representative to attend all such meetings. 0 0 5. Right to Examine Association Records. Any Mortgagee shall, upon request, have the same right to inspect the books and records of the Association, and receive financial statements, as the Owner of the Lot or Unit securing the Mortgage. 6. Right to Pay Taxes and Charges. Mortgagees may, jointly or singly, pay taxes or other charges which are in default and which may, or have, become a charge against any portion of the Common Areas and may pay overdue premiums on insurance policies pertaining to the Common Areas on the lapse of a policy; and Mortgagees making such payments shall be owed immediate reimbursement therefore from the Association. 7. No Priority Accorded. No provision of this Declaration gives, or may give,, a Lot or Unit Owner or any other party priority over an y rights of Mortgagees pursuant to their respective Mortgages the case of a distribution to Lot or Unit Owners of insurance proceeds or condemnation awards for loss to ©ii faking of Units and/or the Common Areas. 8. Construction. In the event another provision of this Declaration_deals °'with the same subject matter as is dealt with in any provision or clause of this ARTICLE IX, the provision or clause with res s the greatest protection and security for a Mortgagee shall control the rights, obligations, or limits of author ity,: °as case may be, applicable to the Association with respect to the subject concerned. «e ARTICLE X PARTY WALLS 1. General Rules of Law to Apply. Each wall t6 substantially on a dividing line between Lots provisions of this Article, the general rules of willful acts or omissions shall apply thereto. 2. Sharing of Repair and Maintenance. The cost of reaso the Owners who make use of the wall in proportion to and mail t6nance of a party wall shall be shared by 3. Destruction byFif6 or other Casualty. If a party wall is destroy - q or damaged by fire or other casualty, any Owner who has:.used the wall may, restore it, and if the Owner of another Lot thereafter makes use of the wall, such other Owner,§hall contribute to `the,.cost of restoration thereof in proportions to such use: the foregoing provision shall not prejudice. however, the right of any Owner to call for a larger contribution from another Owner under any rule of law reQardin2`14bility nor ne2li2ent4l. willful acts or omissions. 4 act, causes a party `all to be exposed against such elements 5. Right to Contribution Runs ARTICLE X shall be aovm r provision of the ARTICLE X, an Owner who, by his negligent or willful elements shall bear the whole cost of furnishing necessary protection d. The right of any Owner to contribution from any other Owner under this land or Unit and shall pass to such Owner's successors in title. EXECUTED by Declarant on the day and year first above written. BNS DESIGN & CONSTRUCTION, INC. a part of the original construction of the Units and placed lute a party wall, and to the extent not inconsistent t with the ingparty, walls and liability for damage due to negligence or NEAL SMITH, PRESIDENT 0 r STATE OF IDAHO COUNTY OF MADISON On the day of 20, personally appeared before me NEAL SMITH, who being duly sworn, says that he is the PRESIDENT of BNS DESIGN & CONSTRUCTION, INC. the corporation that executed the above and foregoing instrument and that said instrument was signed in behalf of said corporation by authority of its bylaws (or by authority of a resolution of its boards of directors) and said NEAL SMITH acknowledged me that said corporation executed the same. 111 _;;, My Commission Expir