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ALL DOCS - 09-00115 - Pioneer Pointe Condos (Rockwell) - Final Plat
04/24/2009 10:37 12085229232 SCHIESS &ASSOCIATES PAGE 02/04 f il ' I�minary/Final Plat O�Vr6f /qr r _. 2 4 ,2 1 City of Rexburg —._ Center d j :� 'G Ph one: 208, 359. rev 302 kroc icn� r4 enfiy C:ommompt, rf.� '4•; 1 , .rexburg.org Fax: 2 08,359.307,2 a ' for A royal. of P elirn ina •,_ Final Subdivision Plat ul 1(� inrl'.? ' l�ompiet ot ; he 1r ra.che. ,L ' _ t �►. . as been prepared in a.ccord with the Subdivision Regulations of : Rexh h ' n'T n'T .items are shown on the plan plans, or explanations given with erect tlaerctci ''� p414 sroFtAr-f r---1 STATE '...) ARc'e yes it u' a ___ ne is : relimi a final Plats Cit of Rext u, . 2n. r,, ,y;anavarnent- Mxia15 Needecl: - Submit eighteen (18) copies of application RI-Submit five (5) copies of 24' x 36' .foldable, drawn to scale plans, North arrow, dated Y"` Submit eighteen (18) copies of 11' x 17' drawn to scale plans The following sha.il be howY, on the P.reliminary/Final. Plat or shall be submitted separately: 1. The name of the: proposed subdivision: t' i o4-►C+Q4 . PC); .r4 ( / 2. The location r 7 04,. 4-4,,,_ Acrea g c 4 ( Number. of Lots __tpp (AN eTs • 3. The names, addresses and telephone numbers of the subdivider or subdividers and the enggineer, or surveyor who prepared th.e plat: Subdivider \ Name: c)o►.j +� p Address: - • I-y. f - f Phone Number: '� L (0 Cell Number: 7 oq— 633 7 Engineer r 1 4 Name: i ASS c04-ssaG. Address: -i9J 4 aSp? Phone Number: _ -• 6•01, Cell Number,: 70F 667a OX(:go Surveyor r/ Name. �" Address: % c r ' e Phone Number: Cell Number,: —_" 4. b - and address f X11 p . oper owner. within 300 Foss 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. 1 04/24/2009 10:37 12085229232 SCHIESS &ASSOCIATES PAGE 03/04 5. The legal, description of the subdivision. (. A slat • ent oft 'men eel u 'con' tie proposed sabdivi ion, 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. 7 . ma t enti area scheduled for development if the proposed subdivision. is a p...0 or ' on of a .larger holding intended for subsequent development. 8. A vi ' . ' ma showing the relationship of the proposed p.lat to the surrou.ndin $ area (1/2 mile (.) minimum .radius, scale optional). 9. Streets, street names, rights-of-wa and roadway widths, in.c.luding adjoining streets or, roadways, curbs and sidewalks. 10. Lot lines and blocks showing the dimensions and numbers of each. 11. Contour lines, shown at live (5) feet intervals where J.ancl slope is greater than ten. percent (10 %) and at two (2) feet intervals where land slope is ten percent (10%) or .less, referenced to an established bench mark, including location anal elevation. 12. n r ed or ex.i5 g utii' 'ec including, including, but not limited to, storm and sanitary sewers, irrigation .laterals, ditches, drains, bridges, culverts, water main .fire hydrants, owcr lights and their. respective profiles and easements. p gas, street 13. A copy of any proposed restrictive covenants and /or deed testricrio.ns. (To be attache submitted with final plat), d or 14. Any dedication 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? 2. Does subdivision conform to present zoning? 3. Requested zoning: 4. Variance Requested; Yes No - (Tf yes, attach written request) 5. Requesting annexad to City? IN 2 04/24/2009 10:37 12085229232 SCHIESS &ASSOCIATES PAGE 04/04 ,ITEMS ,FOR CONS,TDERATIOM 1. Probable impact of the proposed project on the environment effect on: a. Pu.b.l.ic safety and convenience b. Fire, police, and ambulance services c. Recreation d. Schools c. Displacement or .relocation of people f. Land values g. Local and long - distance travel, i.e., highway ancl local road impact h. Behavior of w.i.ldl.ife species i. Wager quality and effect on underground water supply j. Noise pollution k. Air pollution 1. Method proposed to dispose of stem, drainage waters tn..Extent of increased city toad maintenance, including snow removal n. Flood plain — methods proposed to alleviate effect of l 00-year Flood; effect on adjacent properties. a. provisions for .housing for persons of Iow and moderate income p. Harmony with the character of surrounding developments 2. Probable adverse environmental effects which cannot he a.voi.ded a. Traffic Use b. Rights-of-way required c. Pollution effect on existing environment 3. Relationship between local short -term uses of man's economic environment and the .ion.g -term productivity. a. Existing vs. proposed tax base b. Costs to City if proposal approved (annual) 4. Measures taken to minimize .harmful effects on. environment a. Effects of construction, activities b. Erosion control c. Stream pollution prevention. d. Borrow-pit rehabilitation e. Fencing f. Buffet zones g. :replacement of parklands or farmlands 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? THANK YOU. 3 i Affidavit of Leal Interest o 4gE"B°R �. CITY OF City of Rexburg Cl/ 1410 8 )(BURG 12 North Center Phone: 208.359.3020 ~ ; Z0ir . L. a y F Rexburg, ID 83440 www.rexburg.org Fax: 208.359.3022 a 1 11 I II OMR 3 0 2009 1. State of Idaho CITY OF REXBURG Cou of Madison I, eitoi,ct ie S e , Name v Address 131- A CI<E00T IP A H 0 City State Being first duly sworn upon oath, depose and say: (If Applicant is also Owner of Record, skip to B) _ . _ A. That I am the record owner of the property described on the attached, and I grant my permission to: 7c9 0 C C iz E c., P-Y g(,., tk e K F o o T Name Address to submit the accompanying application pertaining to that property. B. I agree to indemnify, defend and hold Rexburg City and its employees harmless from any claim or liability resulting from any dispute as to the statements contained herein or as to the ownership of the property which is the subject of the application. Dated this 3 © day of /lit R e. C q , 20 b 9 Ag a ///' _,...1 _t� 6.1.." _ Signature Or Subscribed and sworn to before me the day and year first above written. CARO ' • tary Public of Idaho Qom, �� Residing at !mil a 411 foplikff 4.0.0 e 1 - r4 O .0 - , .P4, 7 of , ‘ , My commission expires: - / D 04/24/2009 10:37 12085229232 SCHIESS &ASSOCI" PAGE 01/04 Sch & A,ssoc ENGINEERING • PLANNING • LAND SURVEYING 7103 South 45 "' West • Idaho Falls, ID 83402 (208) 522-1244 • Fax (208) 522 -9232 FACSIMILE TRANSMITTAL. SHEET TO: FROM. e l Gli �ee � —Ul�� COMPANY: DATE: • FAX NUMBER: TOTAL NO. OF PAGES INCLUDING COVER: 357 C>,;)1=)-- PHONE NUMBER: RE: ❑ URGENT Q FOR REVIEW/COMMENT ❑ PLEASE REPLY ❑ AS REQUESTED ❑ FOR APPROVAL NOTES /COMMENTS: will � �!-�Q Cop ' eS ; C .e taxiou ef ci -4 Jo Ifni' referenced pages are not received, please notify us immediately, 2008 ?�� n p v !Tv p } °m m � m E m y{ ��i' pr�in Y 6 !Rim � t p 4 E % i I D b } t 1 u n l: i N ii i n l. p6 O S! l g i b H Z e n !Ri m II! 1 � F t i•ii z titl 1 3 y @ fi 0 KtGB sl 12 1 1 t o 11 t 141 =v 6 rill III w !�s; r% ! ! 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COMMON MEA f, W) a z � e � � p . 1 n. >_ ,d r � � to y7 ; i R Q -woMDG M- F� ii 1 O ®gPARl;1F AIECEOWEI STATE OF IDAHO t 2 DEPARTMENT OF � 20 D� ENVIRONMENTAL QUALITY - ® "4F N = Av��� v CITY OF REXBURG ��� ` 900 North Skyline Drive, Suite B • Idaho Falls, Idaho 83402 • (208) 528 -2650 C.L. "Butch" Otter, Governor .4* . - . esty, Director July 7, 2009 Jon Gregory 3456 E. 17` #210 Idaho Falls, ID 83402 Re: Pioneer Pointe Condominiums, Drinking Water, Wastewater, City of Rexburg, Madison County, DEQ# 09 -03 -33 Dear Mr. Gregory: We have reviewed the plans and specifications for the Pioneer Pointe Condominiums. The plans appear to meet state standards and are hereby approved with the following conditions: ♦ 10 -feet of horizontal separation must be maintained between the 2" main line that serves buildings nine and ten and the sewer main that is connected to SSMH #4. ♦ New injection wells (french drains) constructed after July 1, 1997, shall submit a notice of construction form to the Department of Water Resources no later than thirty days prior to commencement of construction for each new well. • A will serve letter for water and sewer from the City of Rexburg must be provided to this office. This approval is for the water distribution system design only. We will give final project approval after it is established that the system is operating properly. We have already received approved the necessary documents for the domestic supply well including pump and water quality tests. This office before field installation must review deviations from the approved plans, which might result in violation of Idaho Regulations. Please keep this office informed of the scheduling of all construction phases so that we can make spot inspections as necessary . This approval will expire July 7, 2010. If construction is not initiated by the expiration date, plans must be resubmitted for approval before further construction proceeds. Within 30 days after construction, a professional engineer registered in the State of Idaho must provide this office with as -built plans or a letter of certification stating that the project was installed with substantial accordance to the approved plans. A copy of the approved plans and specifications will be kept on file at this office. Please reference DEQ No. 09 -03 -33 when submitting any future correspondence related to this project. If you have any questions regarding this letter or if we can be of further assistance, please call me at (208) 528 -2650. SCANNEC .:..-,,L._ ( 3 � ggXB Uq CITY or P.O Box 280 __' � REXBURG 19 E Main St. r .; _:` 1°. Rexburg, Idaho 83440 America's Family Community Phone (208) 359 -3020 Review Action Fax (208) 359 -3022 June 15, 2009 u/VCr;1e" 6 0‘ ) , Permit Number: 09 00115 ■o\ Project Name: Pioneer Pointe Condominiums - Final Plat ) Project Type: Final Subdivision Plat Review Item Actions Required for Approval O Ap roved rev[ * Description Closes and described the desired 06/15/2009 area. Subdivision is Addressable Boundary description matches the plat Street and other public dedications are Dedication of 7th South should be in the worded correctly wording of the Owner's Certificate. Utility and access easments are shown graphically Can identify ownership withing the subdivision Individual Condo units must be uniquely identified. Subdivision and Street name are not in conflict with existing names Township, range, and section are shown Signature are correct for all elected officials and staff Two ties to established section corners exist Ownership matches Assessor's role and Pioneer Point LLC is the owner of recorded documents RPRXBCA0258721 Irrigation certificate exists Flood Plain designation exists Legal Description closes and describes the correct area Information exists to COGO all line segments Subdivision adjoiners are correctly Findings of Fact � REXBUR�. r CITY OF City of Rexburg T)E URG 12 North Center Phone: 208.359.3020 America's Family Community Rexburg, ID 83440 www.rexbur � 0 g Fax: 208.359.3022 Pioneer Pointe Condominiums Final Plat 1. On April 24 2009, Schiess & Associates presented to the Rexburg Planning & Zoning Coordinator a Request and Application for a Final Plat for the Pioneer Pointe Condominiums. 2. On May 7, 2009, Kurt Roland of Schiess & Associates presented to the Rexburg Planning & Zoning Commission the Request for approval of the Final Plat for the Pioneer Pointe Condominiums. Mary Ann Mounts motioned to recommend approval to City Council for the final plat for Pioneer Pointe Condominiums located on West 7 South, excluding # 3 of the planning staff proposed conditions (as CC&Rs have been submitted and reviewed by the City Attorney), to include the remaining six (6) planning staff proposed conditions, to include the staggering of buildings 3 and 4 on the south with a minimum of three -foot jogs (staggering of buildings on the north has been done), that parking spaces shown in the front yard setback be corrected, that the driveway be a straight approach rather than a street approach per the City Engineer, and to include all other staff review comments. Gil Shirley seconded the motion. None opposed. Motion carried. Pioneer Pointe Condominiums Final Plat Proposed Conditions of Approval 1) All previous conditions of approval apply (see file #09 00070) as well as the following conditions: 2) Three foot jogs in buildings shall be shown on final plat for recordation. 3) Parking spaces are still shown within the required 20 foot front yard setback. This shall be corrected final plat for recordation. 4) Final site plan shall be reviewed and approved at the time of the first building permit being submitted. 5) Final site plan shall depict phasing of improvements, i.e. parking, asphalt, sidewalks, etc. 6) Final landscape plan shall depict phasing of improvements 3. On May 20, 2009 at City Council Kurt Roland from Schiess & Associates reviewed the Final Plat for Pioneer Pointe Condominiums on West 7 South on the overhead screen. He explained the changes requested by Planning and Zoning including changes to the curved radius driveway for the Fire Department and staggered buildings on the south had been completed. Buildings three (3) and four (4) were moved three feet south. Council Member Stout asked about the commons area. It will be a lowered area (two to three feet) for storm water. The storm water storage area will be used as a park with sprinklers, basket ball court and playground equipment. Council Member Erickson asked about the height of the buildings. Mr. Roland explained the roof is less than 30 feet. They are about 28 feet high. Council Member Stevens reviewed the roof height being controlled by the width of the road. It is a Fire Department issue. The internal road caused a problem with the Fire Department. Council Member Stout reviewed the asphalt path being used for the movement of snow from the parking areas to the snow storage area. Council Member Erickson moved to approve the Final Plat for Pioneer Pointe Condominiums on West 7t South pursuant to staff analysis and meeting all of the conditions requested by Planning and Zoning; Council Member Stevens seconded the motion. Discussion: Council Member Woodland asked about the payment for power to Mrs. Beck. Mr. Roland said Mrs. Beck and the developer are working that out. Council Member Erickson said it was included in the preliminary plat approval. Mayor Larsen said it was included in the Planning and Zoning discussion too. Public Works Director Millar said the curb and gutter line on the access should be straight; not a radius. Mayor Larsen said that issue was covered in the conditions. All voted aye; the motion carried. OF st. XB UD 47 CITY OF .; al ';//44/A ° REXBZJRG ' America's Family Community `'5 H[ D 18 Design Review Committee Meeting - Prebuilding Pioneer Pointe Condominiums August 25, 2010 11 am Attendees Design Review Committee: Winston Dyer, Chris Mann, Johnny Watson Applicant: Jon Gregory Staff: Val Christensen, Elaine McFerrin Winston Dyer explained that the Design Review Committee meets if there is a development issue that deviates from the design standards stated in the City of Rexburg Development Code # 1026. The Design Review meeting gives the opportunity to examine the issues. The committee is made up of one P&Z Commissioner, one City Council member, and one professional from the community. The purpose of the Design Review Committee meeting is often to reach an amicable compromise for the applicant and the community. Val Christensen said the issue is building length. The planned buildings are 44 and 1/2 feet in length. The Development Code states there must be a jog a minimum of every 40 feet to break up the length of the building. The front and back of the buildings are okay. The sides need to be addressed. Pioneer Pointe Condominiums will be on property behind World Gym. The property size is 4 acres, and there will be fifteen 4- plexes with 60 doors. The property is zoned Medium Density Residential 1 (MDR1). The site plan was examined and discussed. Johnny Watson said in the elevation that fronts the street, it would be nice to see some variation in materials. Winston Dyer suggested a band to break up the siding. Strips of vertical siding could bring a change of color and texture, to break up the length of the building. Johnny Watson suggested the use of gables. Chris Mann preferred that every building have the additions. Jon Gregory said he would be willing to make the changes that are necessary. The Design Review Committee concluded that the extra side building length would be acceptable, in return for the following additions on each building to help make the buildings attractive and community friendly. 1. Texture change - board and batten of different color for the verticals. 2. A gabled roof will be on the sides with shingle presentation. 3. Shutter the windows with a different color than the building to provide additional variety. Winston Dyer thanked Jon Gregory for his willingness to work with them. These buildings will be an asset to the community. RE)CBURG tlTtO - - — City of Rexburg Receipt Number: „... Department of Community Development 19 E. Main St. / Rexburg, ID. 83440 Phone (208) 359-3020 / Fax (208) 359-3024 a/K(104,104u., rtaL ftif ”. i 1, C VI T , 1 1 (;' "POI , 1, T4C 1 os 00115 RPRXBCAO2f. Final Plat $900.00 $900.00 $0.00 09 00115 RPRXBCAO2e. County Surveyor Review Fee $1,000.00 $1,000.00 $0.00 Total: $1,900.00 • •-• 1 . 7 4c i r yr t i . ' - , ;(;41XE:Lit.;, — -...■ CHECK 3584 $ 1,900.00 Total $1,900.00 APR 2 7 2009 CITy ---- Page 1 of 1 genpmtrreceipts o � 1 7 d 2009 � CITY OF REXBURG DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTION APR � N OF THE PIONEER P,OINTE CONDOMINIU AN IDAHO CONDOMINIUM PROJECT x/z- Y APRIL 16, 2009 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF THE PIONEER POINTE CONDOMINIUMS AN IDAHO CONDOMINIUM PROJECT THIS DECLARATION is made of the date hereinafter set forth by , an Idaho limited liability company, hereinafter referred to as the "Declarant." RECITALS: A. The Declarant is the owner of the following described parcel of land, hereinafter collectively the "Land," which is located in the City of Rexburg, Idaho. See Exhibit "A" attached hereto and incorporated by reference. B. The Declarant has constructed or will construct on the Land certain buildings and other improvements as shown on the Map referred to below. C. The Declarant intends to execute, acknowledge, and record in the office of the County Recorder of Madison County, Idaho, a certain instrument pertaining to the Project entitled "Record of Survey Map for the Pioneer Pointe Condominiums." D. The Declarant intends by recording this Declaration and the Map to submit the land, the building, and all other improvements situated in or upon the land the provisions of the Idaho Condominium Property Act, Idaho Code Ann., § 55 -1501, et seq. (hereinafter the "Condominium Act ") as a fee simple Condominium Project and to impose on said property mutually beneficial restrictions under a general plan of improvement for the benefit of all Condominiums within said Project and the Owners thereof. E. Declarant desires that the individual Units contained in the Project be subject to i an pr owners 2 F. Declarant desires that the individual Units contained in the Project, together with undivided ownership interests in the Common Areas and Facilities appurtenant thereto, be subject to the covenants, limitations, and restrictions contained herein. DECLARATION NOW, THEREFORE, for such purposes and such others as permitted by law and this Declaration, Declarant hereby makes the following Declaration containing covenants, conditions and restrictions relating to the Development which, pursuant to the Condominium Act, shall be enforceable equitable servitudes, where reasonable, and shall run with the Land: ARTICLE 1. DEFINITIONS Terminology used in this Declaration shall be considered to have been used consistent with the meanings of the same terms in the Idaho Condominium Property Act. Unless the context clearly indicates otherwise, certain terms as used in this Declaration shall have the meanings set forth in this Article. 1.01 Association: Shall mean the Pioneer Pointe Owners Association, an Idaho nonprofit corporation, organized to be the Association referred to herein. 1.02 Board of Directors: Shall mean the governing board or management committee of the Association, appointed or elected in accordance with the Declaration and in accordance with the Articles of Incorporation (the "Articles ") and Bylaws (the "Bylaws ") for the Pioneer Pointe Condominium Owners Association, attached hereto as Exhibit "C" and Exhibit "D" respectively, and incorporated herein by this reference. The Articles of Incorporation and Bylaws are subject to amendment as provided therein. 1.03 Building: Shall mean one of the fifteen residential buildings containing four Units that will hereinafter be constructed on the Land, as such buildings are shown on the Map. 1.04 Common Areas: All Common Areas in this Project are general or exclusive use Common Areas. The Common Areas include the land, areas designated as Common Areas in Exhibit E, and areas designated in Common in section 8.01. 1.05 Common Expense Fund: Shall mean the fund created or to be created pursuant to the provisions of Article 9 of this Declaration and into which all monies of the Association shall be deposited. 3 acquired, owned, or held by the Association for the use and benefit of all Owners and all other property (real, personal or mixed) hereafter purchased in accordance with this Declaration to be part to the Common Areas, except to the extent otherwise expressly provided in this Declaration. 1.07 Condominium: Shall mean a Unit and the undivided interest (expressed as a percentage of the entire ownership interest) in the Common Areas appurtenant to such Unit, as set forth in Exhibit `B" attached hereto and by this reference made a part hereof. 1.08 Condominium Act: Shall mean the Idaho Condominium Property Act, Idaho Code Ann., § 55 -1501, et .seq. 1.09 Declarant: Shall mean 1.10 Eligible First Mortgagee: Shall have the meaning set forth in Section 14.03, below. 1.11 First Mortgage: Shall mean a First Mortgage lien on any Unit in the Project. 1.12 First Mortgagee: Shall mean the holder of a First Mortgage. 1.13 Land: Shall mean the land upon which the Project is situated, as more particularly described in Recital A, above. 1.14 Lease: Shall mean any agreement for leasing or rental of any Condominium. 1.15 Map: Shall mean the Record of Survey Map for Pioneer Pointe Condominiums, an Idaho Condominium Project, attached hereto as Exhibit "E" and incorporated herein by this reference and any supplemental Maps pertaining to the Project and recorded or to be recorded in the office of the County Recorder of Madison County, Idaho. 1.16 Members: Shall mean a Member of the Pioneer Pointe Owners Association. 1.17 Mortgage: Shall mean any mortgage, deed of trust, or other security instrument by which a Condominium or any part thereof is encumbered. 1.1 Mortgagee: Shall mean any persons named as the mortgagee or beneficiary under any mortgage or deed of trust by which the interest of any Owner is encumbered, or any successor to the interest of such person under such mortgage or deed of trust. 1.19 Owner: Shall mean the person or persons, including the Declarant, owning in fee simple a Condominium in the Project, as such ownership is shown by the records of the County Recorder of Madison County, Idaho. The term "Owner" shall not refer to any Mortgagee (unless such Mortgagee has acquired title to a Condominium for other than 4 security purposes) or to any person or persons purchasing a Condominium under contract (until such contract is fully performed and legal title conveyed of record). 1.20 Project: Shall mean the Land, the Buildings, and all improvements submitted by this Declaration and the Map to the provisions of the Condominium Act. 1.21 Total Votes of the Association: Shall mean the total number of votes appertaining to all condominiums in the Project, as shown on Exhibit "B" attached hereto. 1.22 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 air space, 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 mainline, plumbing and plumbing fixtures other than supply lines or vents, insulation, heat systems and vents and other wall, ceiling, or floor coverings on the interior walls shall be deemed to be part of the Unit Notwithstanding the fact that they may be within the boundaries of such air space, the following are not part of a 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, rock, 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 2. SUBMISSION AND DIVISION OF PROJECT 2.01 Submission to Condominium Act. The Declarant herby submits the Land, the buildings, and all other improvements now or hereafter made in or upon 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 Pioneer Pointe Condominiums, an Idaho Condominium Project. All of said property is and shall be subject to the covenants, conditions, restrictions, uses, limitations, and obligations set forth herein, each and all of which are declared and agreed to be for the benefit of said Project and in furtherance of a plan for improvement of said property and division thereof into Condominiums further, each and all of the provisions hereof shall be deemed to turn 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, owning an interest in the real property and improvements comprising the Project, and to their respective personal representatives, heirs, successors, and assigns. 2.01 Division into Condominiums. The Project is hereby divided into Condominiums, each such Condominium consisting of a Unit and an appurtenant undivided interest in the Common Areas, as set forth in Exhibit "B" attached hereto. 5 ATICLE 3. BUILDINGS AND IMPROVEMENTS AND DEVELOPMENT PLAN 3.01 Buildings and Improvements. The buildings and other improvements constructed or to be constructed on the Laand are described on the Map. The buildings will be constructed of wood framing with rock and siding exterior. All buildings and other improvements will be built to the specifications and standards of the State of Idaho and the City of Rexburg, Idaho. 3.02 Description of Units. The Map contains the Unit number (or other designation of each Unit), location, and dimensions of each Unit in the Project and all other information necessary to identify each such Unit. 3.02 Description of Common Areas. The Map contains a description of the Common Area of the Project. ARTICLE 4. NATURE AND INCIDENTS OF OWNERSHIP 4.01 Interior OF Units. Each Owner shall have the exclusive right to paint, repaint, tile, wax, paper, carpet, or otherwise decorate the interior surfaces of the wall, ceilings, floors, and doors forming the boundaries of such Owner's Unit and the surfaces of all walls, ceilings, floors and doors with such boundaries. Each Owner shall also have the right, to construct partitions walls, fixtures, and improvements within the boundaries of such Owner's Unit; provided however, that such partition walls, fixtures and improvements shall comply with all applicable laws, ordinances, and building codes, shall not interfere with facilitates necessary for the support, use or enjoyment of any other part of the Project or any other Unit, if a shared facility, shall not impair the structural soundness of integrity of the Building which it is located, and shall not encroach upon the Common Areas or any part thereof, unless the Board of Directors shall consent in wiring to such encroachment. 4.02 Maintenance of Units. Each Owner shall keep the interior of that owner's unit, including without limitation, interior walls, windows, ceilings, floors, and permanent fixtures and appurtenances thereto, in a clean and sanitary condition and in a state of good repair. In the event that any such Unit shall develop and unsanitary or unclean condition or fall into a state of disrepair promptly following written notice from the Board of Directors, the Board of Directors in behalf of the Association shall have the right, at the expense of the Owner and without liability to the Owner for trespass or otherwise, to enter said Unit and correct or eliminate said unsanitary or unclean condition or state of unrepaired; provided, however, that the Association shall in no event have the obligation to correct or eliminate any such condition or state of disrepair. 4.03 Right to Combine Units. With the written consent of the Board of Directors, which shall not be unreasonably withheld, two or more Units may be utilized by the Owner or Owners thereof as if they were one Unit. To the extent permitted in the written 6 consent of the Association, any walls, floors, or other structural separations between any two such Units, or any space which would be occupied by such structural separations but for the utilization of the two Units as one Unit, any, for as long as the two Units are utilized as one Unit, be utilized by the Owner or Owners of the adjoining Units, except to the extent that any such structural separations are necessary or contain facilities necessary for the support, use, or enjoyment of other parts of the Project. At any time, upon the request of the Owner of one of such adjoining Units, any opening between the two Units which, but for joint utilization of the two Units, would have been occupied by structural separation, shall be closed, at the equal expense to the Owner or Owners of each of the two Units and the structural separations between the two Units shall thereupon become the common areas. 4.04 Title. Title to a Condominium within the Project may be held or owned by any person or entity, or any combination thereof, and in any manner in which title to any other real property may be held or owned in the State of Idaho. 4.05 Ownership of Common Areas. The undivided ownership interests in the Common Areas shall be allocated equally to all of the Units in the Project regardless of the size or value of the Units. The initial undivided ownership interest in the Common Areas appurtenant to each Unit in the Project as set forth in Exhibit `B" shall have a permanent character and shall not be altered except with the unanimous written consent of all Owners expressed in an amendment to this Declaration duly recorded, or except to the extent necessary to allow for the expansion of the Project as provided in the Condominium Act. Except as otherwise provided in this Declaration, any Owner shall be entitled to nonexclusive use of the Common Areas in any manner that does not hinder or encroach upon the rights of other Owners and is not contrary to any rules and regulations promulgated by the Association. 4.06 Inseparability. Title to no part of a Condominium within the Project may be separated from any other part thereof, and each Unit and the undivided interest in the Common Areas appurtenant to each Unit shall always be conveyed, divided, encumbered, and otherwise affected only as a complete Condominium. Every devise, encumbrance, conveyance, or other disposition of a Condominium, or any part thereof, shall be construed to be a devise, encumbrance, conveyance, or other disposition, respectively, of the entire Condominium, together with all appurtenant rights created by law or by this Declaration, including appurtenant membership in the Association as hereinafter set forth. 4.07 No Partition. The Common Areas shall be owned in common by all of the Owners, and no Owner may bring any action for the partition thereof. 4.08 Separate Mortgages by Owners. Each Owner shall have the right separately to mortgage or otherwise encumber such Owners' Condominium. No Owner shall attempt to or shall have the right to mortgage or otherwise encumber the Common Areas or any part thereof, except the undivided interest therein appurtenant to such Owner's Condominium. Any mortgage or other encumbrance of any Condominium within the 7 4.08 Separate Mortgages by Owners. Each Owner shall have the right separately to mortgage or otherwise encumber such Owners' Condominium. No Owner shall attempt to or shall have the right to mortgage or otherwise encumber the Common Areas or any part thereof, except the undivided interest therein appurtenant to such Owner's Condominium. Any mortgage or other encumbrance of any Condominium within the Project shall be subordinate to all of the provisions of this Declaration, and in the event of foreclosure the provisions of this Declaration shall be binding upon any Owner whose title is derived through foreclosure by private power of sale, judicial foreclosure, or otherwise. 4.09 Separate Taxation. Each Condominium within the Project including each Unit and appurtenant undivided interest in the Common Areas, shall be deemed to be a parcel and shall be assessed separately for all taxes, assessments, and other charges of the State of Idaho or of any political subdivision or of any special improvement district or of any other taxing or assessing authority. For purposes of such assessment, the valuation of the Common Areas shall be apportioned among the Units in proportion to the undivided interests in Common Areas appurtenant to such Units. All such taxes, assessments, and other charges on each respective Condominium shall be separately levied against the Owner thereof. No forfeiture or sale of any Condominium for delinquent taxes, assessments, or other governmental charges shall divest or in any way affect the title to any other Condominium. 4.10 Mechanics' Liens. No labor performed or material furnished for use in connection with any Unit with the consent or at the request of an Owner or his agent or subcontractor shall create any right to file a statement of mechanic's lien against the Unit of any other Owner not expressly consenting to or requesting the same labor performed or material furnished, or against any interest in the Common Areas, except the undivided interest therein appurtenant to the Unit of the Owner for whom such labor shall have been performed and such materials shall have been furnished. 4.11 Description of Condominium. Every contract for the sale of a Condominium and every other instrument affecting title to a Condominium within the Project may describe a Unit by its identifying letter or symbol as indicated in this Declaration or as shown on the Map. Such description will be construed to describe the Unit, together with its appurtenant undivided interest in the Common Areas, and to incorporate all of the rights incident to ownership of a Condominium, within the Project and all of the limitations on such ownership. 4.12 Maximum Ownership. No more than forty percent (40 %) of the Condominiums within the Project may be owned by a single Owner. Inasmuch as there are currently a total of sixty (60) Condominiums, not more than twenty -four (24) Condominiums may be owned by a single Owner. Any Owner who violates this provision of holding fee simple title to more than twenty -four (24) Condominiums shall be subject to a requirement by the Association that such Owner divests itself of a sufficient number of Condominiums so as to comply with the terms of this Section 4.12 of this Declaration. Any costs of litigation required to enforce this provision shall be paid by the non - complying Owner. 8 5.01 Easements for Encroachments. If any part of the Common Areas encroaches or shall hereafter encroach upon any Unit, an easement for such encroachment and for the maintenance of the same shall and does exist. If any part of a Unit encroaches or shall hereafter encroach upon the Common Areas, or upon an adjoining Unit, an easement for such encroachment and for the maintenance of the same shall and does exist. If any part of the Common Areas or any part of a Unit shall hereafter encroach on real property now owned by the Declarant outside the boundaries of the land, an easement for such encroachment shall and does exist. Such encroachments referred to herein include, but are not limited to, encroachments caused by error in the original construction of the Buildings or any Improvements constructed or to be constructed within the Project, by error in the Map, by settling, rising, or shifting of the earth, or by changes in position caused by repair or reconstruction of the Project, or any part thereof, in accordance with the provisions of this Declaration. 5.02 Easements for Maintenance, Cleaning and Repair. Some of the Common Areas are or may be located within the Units or may be conveniently accessible only through the Units. The Association shall have the irrevocable right to have access to each Unit and to all Common Areas from time to time during such reasonable hours as may be necessary for the maintenance, cleaning, repair or replacement of any Common Areas or for making emergency repairs at any time therein necessary to prevent damage to the Common Ares or to any Unit. Any Association access to a Unit for emergency repairs which repairs are the responsibility of the Owner and which repairs are not covered by insurance, shall be charged to the Owner and the Owner shall pay any damages resulting from the same. In addition, agents of the Association may enter any Unit when necessary in connection with any cleaning, maintenance, repair, replacement, landscaping, construction, or reconstruction for which the Association is responsible. Such entry shall be made with as little inconvenience to the Owners as practicable, and any damage caused thereby shall be repaired by the Association with funds from the Common Expense Fund. Notwithstanding the foregoing, except in the event of an emergency, the Association shall not enter any Unit without first providing the affected Unit Owner with twenty -four (24) hour advance notice of such entry. 5.03 Right to Ingress, Egress, and Support. Each Owner shall have the right to ingress and egress over, upon, and across the Common Areas as may be necessary or convenient to perform the duties and functions that it is obligated or permitted to perform pursuant to this Declaration, including without limitation repairs required by this Declaration as well as the right to construct and maintain in the Common Areas facilitates for use by Owners generally or by the Association and its agents exclusively. 5.04 Easement for Completion and Sale of Project. The Declarant shall have a transferable easement over and on the Common Areas for the purpose of completing construction of the Project and making improvements therein as shown on the Map and for the Purpose of doing all things reasonably necessary or appropriate in connection therewith, but only if access is not otherwise reasonably available. To the extent that damage is inflicted on any part of the Project by any person utilizing said easement, the Declarant and the person causing the damage shall be liable to the Association for the 9 prompt repair of such damage. The Declarant may maintain small and compatible facilities in the Common Ares reasonably necessary to market Units, including but not limited to sales and management offices, parking areas and advertising signs. 5.06 Easements Deemed Created. All conveyances of Condominiums within the Project hereafter made, whether by the Declarant or otherwise, shall be construed to grant and reserve such reciprocal easements as are provided herein, even though no specific reference to such easements appears in any conveyances. ARTICLE 6. RESTRICTIONS ON USE 6.01 Primary Use. All Units within the Project shall be used exclusively for residential dwelling and for no other purpose. 6.02 No Noxious of Offensive Activity. No Noxious or offensive activity shall be carried on, in or upon any part of the Project, nor shall anything be done or placed in or upon any part of the Project which is or may become a nuisance or which may cause disturbance or annoyance to Owners. No activities shall be conducted or improvements constructed, in or upon any part of the Project which are or may become unsafe or hazardous to any person or property. 6.03 No Alterations. No Owner shall without the prior written consent of the Board of Directors in each specific instance, make, or cause to be made any alteration, addition, removal, or improvement in or to the Common Areas or any part thereof, or do any act that would impair the structural soundness or integrity of the Buildings or other improvements or jeopardize the safety of persons or property or impair any easement or hereditament appurtenant to the Project. 6.04 No Obstructions. No Owner shall obstruct the Common Areas or any part thereof. No Owner shall store or cause to be stored in the Common Areas any property whatsoever, unless the Board of Directors shall consent thereto in writing. 6.05 No Overloading. No Owner shall bring anything into such Owner's Unit or permit anything to be done in such Owner's Unit that will cause damage to the Building. No Owner shall overload the floor of such Owner's Unit. No Owner shall permit the use or operation in a Unit of any equipment, machinery, or other apparatus that will in any manner injure, vibrate, or shake the Building or portions thereof. 6.06 Prohibition of Damage and Certain Activities. Except with the prior written consent of the Board of Directors, nothing shall be done or kept in any Unit, in the Common Areas, or in any other part of the Project that would result in cancellation of the insurance on the Project or any part thereof, nor shall anything be done or kept in any Unit that would increase the rate of insurance on the Project or any part thereof over that which the Association, but for such activity, would pay. Nothing shall be done or kept in any Unit or in the Common Areas or any part thereof which would be in violation of any 10 statute, rule, ordinance, regulation, permit, or other validly imposed requirement of any governmental authority. No damage to, or waste of, the Common Areas or any part thereof shall be committed by any Owner or guest of any Owner, and each ()caner shall indemnify and hold harmless the Association and the other Owners from and against all loss resulting from any such damage or waste caused by such Owner or by the guests, tenants, licensees, or invitees of such Owner. There shall be no subrogation rights against an Owner, Tenant, or the Association for any loss covered by any insurance. 6.07 Rules and Regulations. Each Owner shall comply strictly with all rules and regulations adopted by the Association for the governance of the Units, the Common Areas, and the Project, as such rules and regulations may be modified, amended, and construed by the Association in the sole discretion of its Board of Directors. 6.08 Construction Period Exemption. During the course of actual construction of any permitted structures or improvements within the Project, the provisions, covenants, conditions, and restrictions contained in this Declaration shall be deemed waived to the extent necessary or convenient to permit such construction; provided, however, that during the course of such construction, nothing shall be done which will result in a violation of any said provisions, covenants, conditions, or restrictions upon completion of the construction. 6.09 Specific Limitations A. No Boats, RV's, ATV, Jet Skis, Campers, Snowmobile, trailers, junk vehicles or vehicles that are being restored, repaired or that are not operable are to be stored or kept on the Common Areas, streets, parking lots, driveways or otherwise on the property. Violating vehicles will be towed at the Owner's expense. B. No Unit may have more than Two (2) vehicles on the Property at one time. C. Each Unit is allowed to have one (1) dog or one (1) cat with no exceptions to have more than one (1) dog or one (1) cat. No pet, if permitted, may be allowed outside unless on a leash and accompanied by a person and all animal waste shall be removed by the owner; no dog or pet runs are permitted anywhere on the Project. D. Satellite dishes are allowed but must be located in such location that has been allowed in writing by the Association. Any damage caused to Common Areas or exterior surfaces from installation of satellite dish much be repaired at the Owner's expense. E. The Association may establish reasonable parking rules, regulations and designations to facilitate use repair and snow removal in parking areas. 11 E. The Association may establish reasonable parking rules, regulations and designations to facilitate use repair and snow removal in parking areas. F. The Association may establish reasonable rules to govern, regulate, control, designate areas and if deemed necessary prohibit outdoor storage of any articles, including but not limited to bicycles, patio furniture, outdoor barbeque grills, etc. G. All interior window coverings must be white blinds and no other window coverings other than white blinds shall be visible from the exterior of any Unit. 11. The use of the playground equipment and picnic area is limited to the use by Owners and their individual guests. Use of these areas shall be at the sole risk of the participants. In the event of any personal injury or damage while utilizing the playground equipment and Common Areas, the Association shall have no responsibility or liability, except in the case of gross negligence or intentional acts by the Association directly causing the injury. 6.10 Leasing. All Leases should be in writing and are subject to this Declaration and the Bylaws. Leasing of any Unit is prohibited for an initial term of less than 30 Days. 6.11 Owner Occupied. A. Restriction on Non -Owner Occupied Units. No less than fifty percent (50 %) of the Condominiums in the Project shall be occupied by an Owner. For purposes of this Section 6.11, a Condominium shall be deemed to be occupied by an Owner if such Condominium is (1) the primary or secondary residence of such Owner; or (2) occupied by an immediate family member of such Owner; or (3) occupied by such Owner along with other third parties. Inasmuch as there are currently a total of sixty (60) Condominiums, not more than twenty -nine (29) may be leased to and occupied by non - owners. B. Definitions of Primary and Secondary Residences. A Condominium shall be deemed a primary residence of an Owner if the Owner resides in the Condominium for the major portion of the year. A Condominium shall be deemed a secondary residence of an Owner if the Owner resides in the Condominium for a portion of the year. C. Application to Association. Any Owner desiring to lease its Condominium shall first make application to the Association for permission to lease such Condominium. The Association shall review such requests on a first come first served basis, and provide written consent to qualifying applicants. In the event that fourteen. (14) Condominiums are rented to non - Owners, the Association shall reject future requests to lease Condominiums until such time as the number of leased Condominiums falls below fourteen (14). 12 conforming Condominium. Any costs of litigation required to enforce this provision shall be paid by the non - complying Owner. E. Record Notice. All Owners shall be deemed to be on record notice of the requirements of this Section 6.11 upon recordation of this Declaration; and prospective Owners are advised to contact the Association in advance of a purchase of a Condominium within the Project if such prospective Owner desires to lease the Condominium it seeks to purchase. 6.12 Smoking Prohibited. No smoking is allowed within the Project, either within the Condominium Units or the Common Areas. Any Owner who rents its Condominium shall include in its lease a prohibition against smoking within the leased Unit and the Common Areas. Any Owner who violates this prohibition against smoking within the Project, or any Owner who allows any guest, invitee or tenant under any lease whereby such tenant leases such Owner's Unit, shall be subject to a penalty of $100.00 per day of violation of this provision, which by penalty may be sought and enforced by the Association for any attorney's fees incurred by the Association in enforcing this provision. ARTICLE 7. THE ASSOCIATION 7.01 Membership. Each Owner shall be entitled and required to be a Member of the Association; Membership shall begin immediately and automatically upon becoming an Owner and shall terminate immediately and automatically upon ceasing to be an Owner. If title to a Condominium is held by more than one person, the Membership appurtenant to that Condominium shall be shared by all such persons in the same proportionate interest and by the same type of tenancy in which title to the Condominium is held. An Owner shall be entitled to one Membership for each Condominium owned by such Owner. Each Membership shall be appurtenant to the Condominium to which it relates and shall be transferred automatically by conveyance of that Condominium. Ownership of a Condominium within the Project cannot be separated form Membership in the Association appurtenant thereto, and any device, encumbrance, conveyance, or other disposition of a Condominium shall be construed to be a devise, encumbrance, conveyance, or other disposition respectively of the Owner's Membership in the Association and rights appurtenant thereto. No Person or entity other than an Owner may be a Member of the Association, and Membership in the Association may not be transferred except in connection with the transfer of the Condominium. 7.02 Voting Rights A. The Association shall have two classes of voting memberships: Class A. Class A Members shall be all Owners, with the exception of the Declarant, and shall be entitled to one (1) vote for each Unit owner. When more that one person holds an interest in any Unit, all such persons shall 13 Class A. Class A Members shall be all Owners, with the exception of the Declarant, and shall be entitled to one (1) vote for each Unit owner. When more that one person holds an interest in any Unit, all such persons shall be Members. The vote for such Unit shall be exercised as they determine, buy in no event shall more than one (1) vote be cast with respect to any Unit. Class B. The Class B Member shall be the Declarant and shall be entitled to sixty (60) votes for each Unit owned by the Declarant. B. Declarant's right to Class B membership in the Association with respect to Units will end upon the first to occur of either of the following events: (1) The fourth anniversary of the date on which this Declaration is recorded, or (2) All the Units have been conveyed to purchasers. C. The Directors of the Association shall be elected by the Members in accordance with the Bylaws and subject to the additional conditions and limitations above described. 7.03 Votes. Once sold by the Declarant, each Unit in the Project shall have one vote in the Association regardless of the size or value of the Unit. The number of votes appurtenant to each respective Unit shall be set forth in Exhibit `B." The number of votes appurtenant to each Unit as set forth in said Exhibit `B" shall have a permanent character and shall not be altered without the unanimous written consent of all Owners expressed in a duly recorded amendment to this Declaration. 7.04 Audit. Upon written request from any of the agencies or corporations which has an interest or prospective interest in a Unit, the Association shall prepare and furnish within a reasonable time an audited financial statement of the Association of the immediately preceding fiscal year. 7.05 Amplification. The provisions of this Article 7 may be amplified by the Articles of Incorporation and Bylaws of the Association; provided, however, that no such amplification shall substantially alter or amend any of the rights or obligations of the Owners set forth in this Declaration. The initial Bylaws of the Association shall be in the form of Exhibit "D." ARTICLE 8. CERTAIN RIGHTS AND OBLIGATIONS OF ASSOCIATION 8.01 Common Areas. The Board of Directors, acting on behalf of the Association and, subject to the rights and duties of the Owners as set forth in this Declaration, shall be responsible for the exclusive management and control of the Common Areas and all improvements thereon (including the Common Facilities), and shall keep the same in a good, clean, attractive, safe, and sanitary condition, order, and repair. The Association 14 maintenance and snow removal of walkways, driveways, and parking areas. The Board of Directors shall also be responsible for maintenance, repair, and replacement of Common Areas within the Buildings, including without limitation landings, stairways, utility lines, Common Facilities, and all improvements and other items located within or used in connection with the Common Areas. The specification of duties of the Board of Directors with respect to particular Common Areas shall not be construed to limit its duties with respect to other Common Areas. All goods and services procured by the Board of Directors in performing its responsibilities under this section shall be paid for with funds from the Common Expense Fund. 8.02 Miscellaneous Goods and Services. The Board of Directors may, on behalf of the Association, obtain and pay for the services of such personnel as the Board of Directors shall determine to be necessary or desirable for the proper operation of the Project, whether such personnel are furnished or employed directly by the Association or by any person or entity with whom or which it contracts. The Board of Directors may, in behalf of the Association, obtain and pay for legal and accounting services necessary or desirable in connection with the operation of the Project or the enforcement of this Declaration. In addition to the foregoing, the Board of Directors may, on behalf of the Association, acquire and pay for out of the Common Expense Fund water, sewer, garbage collection, electrical, gas, and other necessary or desirable utility services for the Common Areas (and for the Units to the extent not separately metered or billed), insurance, bonds, and other goods and services common to the Units. 8.03 Real and Personal Property. The Board of Directors may acquire and hold on behalf of the Association real, personal, and mixed property of all types for the use or benefit of all the Owners and may dispose of such property by sale or otherwise; provided that any acquisition or disposition of any real, personal or mixed property by the Board of Directors wherein the value of such property exceeds $10,000.00 must be approved by a vote of at least sixty percent (60 %) of the total Voters of the Association at a Meeting duly called for that purpose. All such property, including Common Facilities, shall be paid for out of the Common Expense Fund and all proceeds from the disposition thereof shall be part of such fund. 8.04 Rules and Regulations. The Board of Directors my make reasonable rules and regulations governing the use of the Units, the Common Areas, and all parts of the Project, which rules and regulations shall be consistent with the rights and duties established by this Declaration. The Board of Directors in behalf of the Association may take judicial action against any Owner to enforce compliance with such rules and regulations or other obligations of such Owner arising hereunder, or to obtain damages for noncompliance therewith, as permitted by law. In the event of such juridical action the association shall be entitled to recover costs, including reasonable attorney's fees from the offending Owner. 8.05 Granting Easements. The Board of Directors of the Association may grant or create, on such terms as it deems advisable, utility and similar easements and rights -of- 15 way over, under, across, and through the Common Areas, which are reasonably necessary to the ongoing development and operation of the Project. 8.06 Statutory Duties and Powers. All duties, responsibilities, rights, and powers imposed upon or granted to the "management committee" or to the "manager" under this Condominium Act shall be duties, responsibilities, rights and powers of the Board of Directors hereunder. 8.07 Implied Rights. The Association may exercise any right, power, or privilege given to it expressly by this Declaration or by law, and every other right or privilege reasonably implied from the existence of any right or privilege given to herein or reasonably necessary to effectuate any such right or privilege. ARTICLE 9. ASSESMENTS 9.01 Agreement to Pay Assessments. The Declarant, for each Condominium owner be it within the Project, and for and as the owner of the Project and every part thereof, herby covenants and each Owner of any Condominium by the acceptance of instruments of conveyance and transfer therefore, whether or not it be so expresses in said instruments, shall be deemed to covenant and agree with each other and with the Association to pay to the Association all Assessments (annual, special and otherwise) made by the Association for the purposes provided in this Declaration. Such Assessments shall be fixed, established and collected from time to time as provided in this Article 9. 9.02 Annual Assessments. Annual assessments (the "Annual Assessments ") shall be computed and assessed against all Condominiums in the Project as follows: A. Common Expense. Annual Assessments shall be based upon advance estimates of the Association's cash requirements to provide for payment of all estimated expenses arising out of or connected with maintenance and operation of the Common Areas and/or furnishing utility services and other common items to the Units. Such estimated expenses may include, among other things, the following: expenses of management; real property taxes and special assessments (unless and until the Condominiums are separately assessed); premiums for all . insurance that the Association is required or permitted to maintain hereunder; repairs and maintenance; wages for Association employees, including fees for a Manger (if any); utility charges, including charges for utility services to the Units to the extent not separately metered or billed; legal and accounting fees; any deficit remaining form a previous period; creation of an adequate contingency reserve, major maintenance reserve, and/or sinking fund; creation of an adequate reserve fund for maintenance repairs, and replacement of those Common Areas and Facilities that must be replaced on a periodic basis, and such reserve shall preferably be funded by monthly payments but if necessary extraordinary special assessments may be made; and any other expenses and liabilities which may be incurred by the Association for the benefit of the Owners under or by reason of 16 this Declaration. Such shall constitute the Common Expense, and all funds received from assessments under this Section shall be part of the Common Expense Fund. A working capital fund must be established for the initial months of the project operations equal to at least a two months estimated Common Area charge for each Unit. B. Apportionment. Expenses attributable to the Common Expense or the Project as a whole shall be apportioned among and assessed to the Owners in proportion to their respective undivided interests in the Common Areas. The Declarant shall be liable for the amount of any assessments against the Condominiums owned by it. C. Annual Budget. Annual Assessments shall be determined on the basis of a fiscal year beginning January 1 of each year and ending the December 31 next following; provided the first fiscal year shall begin on the date of this Declaration and end on the December 31 next following. On or before December 15 of each year, the Board of Directors shall prepare and furnish to each Owner, or cause to be prepared and furnished to each Owner, an operation budget for the upcoming fiscal year. The budget shall itemize the estimated expenses of Common Expense for such fiscal year, anticipated receipts (if any), and any deficit or surplus from the proper operating period. The budget shall sever as the supporting document for the Annual Assessment for the upcoming fiscal year and as the major guideline under which the Project shall be operated during such annual periods. Such budgets shall be unnecessary for Annual Assessments relative to, or for operations of the Project during, any operating period ending before January 1, 2010 D. Notice and Payment. Except with respect to the first fiscal year, the Board of Directors shall notify each Owner as to the amount of the Annual Assessment against such Owner's Condominium on or before December 15 each year for the fiscal year beginning on January 1 next following. Each Annual Assessment shall be payable in twelve equal monthly installments, one such installment due on the first day of each calendar month during the fiscal year to which the assessment relates unless the Board of Directors shall determine some other payment schedule; provided, however, the Annual Assessment for the first fiscal year shall be based upon such portion of the first fiscal year and shall be payable in such installments and at such times as the Association, in the sole discretion of its Board of Directors, may determine. All unpaid installments of any Annual Assessment shall bear interest at the rate of fifteen percent (15 %) per annum from the date each such installment becomes due until paid. In addition, in the event that any installment of any Annual Assessment is not paid on the date such installment becomes due; it shall be subject to a penalty for late payment of five dollars ($5.00) per day form the date each such installment becomes due until paid. The failure of the Board of Directors to give timely notice of any annual assessment as provide herein shall not be deemed a waiver or modification in any respect of the provisions of this Declaration, or a release of any Owner from the 17 obligation to pay such assessment or any other assessment; but the date when the payment shall become due in such case shall be deferred to a date fifteen (15) days after notice of such assessment shall have been given to the Owner in the manner provided in this Declaration. E. Inadequate Funds. In the event that the Common Expense Fund proves inadequate at any time for whatever reason, including nonpayment of any Owner's assessment, the Board of Directors may on behalf of the Association levy additional assessments in accordance with the procedure set forth in Section 9.3 below, except that the vote therein specified shall be unnecessary. 9.03 Special Assessments. In addition to the Annual Assessments authorized by this Article 9, the Board of Directors may, on behalf of the Association, levy, at any time and from time to time, upon the affirmative vote of at least fifty -one percent (51 %) of the Total Votes of the Association, special assessments (the "Special Assessments "), payable over such periods as the Board of Directors may determine, for the purpose of defraying, in whole or in part, the cost of any construction or reconstruction, unexpected repair or replacement of the Project or any part thereof, or for any other expenses incurred or to be incurred as provided in this Declaration (including without limitation Common Expenses). This Section shall not be construed as an independent source of authority for the Association to incur expenses, but shall be construed to prescribe the manner of assessing for expenses authorized by other Sections or Articles hereof. Any sums assessed pursuant hereto shall be assessed to Owners in proportion to their respective undivided interests in the Common Areas. Notice in writing of the amount of each such Special Assessment and the time for payment thereof shall be given promptly to the Owner; no payment shall be due less that fifteen (15) days after such notice shall have been given. All unpaid portions of any special Assessment shall bear interest at the rate of fifteen percent (15 %) per annum from the date such portions become due until paid. In addition, in the event that any Special Assessment is not paid on the date such Special Assessment becomes due, it shall be subject to a penalty for late payment of five dollars ($5.00) per day from the date each such Special Assessment becomes due until paid. All funds received from assessments under this Section shall be part of the Common Expense Fund. 9.04 Lien for Assessments. All sums assessed to Owners of any Condominium within the Project pursuant to the provisions of this Article 9, together with penalties and interest thereon as provided herein, shall be secured by a lien on such Condominium in favor of the Association. To evidence a lien for sums assessed pursuant to this Article 9, the Board of Directors may prepare a written notice of lien setting forth the amount of the assessment, the date due, the amount remaining unpaid, the name of the Owner of the Condominium, and a description of the Condominium. Such a notice shall be signed and acknowledged by a duly authorized officer of the association and may be recorded in the office of the County Recorder of Madison County, Idaho. No notice of lien shall be recorded until there is a delinquency in payment of the assessment. Such lien may be enforced by sale or foreclosure conducted in accordance with the provisions of law applicable to the exercise of powers of law for foreclosure in deeds of trust or mortgages 18 or in any other manner permitted by law. In any such foreclosure, the Owner shall be required to pay to the Association any assessments against the Condominium which shall become due during the period of foreclosure, and all such assessments shall be secured by the lien being foreclosed. The Board of Directors shall have the right and power in behalf of the Association to bid in at any foreclosure sale, and to hold, lease, mortgage, or convey the subject Condominium in the name of the Association. Such a lien for Assessments shall not be affected by any sale or transfer of a Unit, except that a sale or transfer of a Unit pursuant to a foreclosure of a First Mortgage shall extinguish a subordinate lien for Assessments which become payable prior to such sale or transfer. Any such sale or transfer pursuant to a foreclosure shall not relieve the purchaser or transferee of a Unit from liability for, nor the Unit so sold or transferred from the lien of, any Assessment thereafter becoming due. 9.05. Personal Obligation of Owner. The amount of any Annual Assessment or Special Assessment against any Condominium shall be the personal obligation of the Owner of such Condominium to the Association. Suit to recover a money judgment for such personal obligation shall be maintainable by the Association without foreclosing or waiving the lien securing the same. No Owner may avoid or diminish and such personal obligation by waiver of the use and enjoyment of the Common Areas or by abandonment of this Condominium or by waiving any services or amenities provided for in this Declaration. In the event of any suit to recover a money judgment for unpaid Assessments hereunder, the defaulting Owner shall pay the cost and expenses incurred by the Association in connection therewith, including reasonable attorney's fees. The personal obligation for delinquent Annual Assessments or Special Assessments shall not pass to successors in title or interest to an Owner unless assumed by such successors. 9.06 Amendment of Article. This Article 9 shall not be amended unless the Owners of all Condominiums in the Project unanimously consent and agree to such amendment in a duly executed and recorded instrument. ARTICLE 10. INSURANCE 10.01 Types of Insurance. The Association shall obtain and keep in full force and effect tat all times the following types of insurance overage, provided by companies licensed to do business in the State of Idaho: A. Master Property Insurance. The Association shall obtain and maintain a "master" or "blanket" multi -peril policy of property insurance equal to a full replacement value (i.e. 100% of current "replacement cost" exclusive of land, foundation, excavation and other items normally excluded from coverage) of the Project (including all building service equipment and supplies and the like and any fixtures or equipment within the Common Areas and other Common Area personal property belonging to the Association, which are financed under the mortgage), with an agreed amount endorsement or its equivalent, if available, and, if available, an inflation guard endorsement. Such insurance shall afford 19 protection against loss or damage by fire and other hazards covered by the standard extended coverage endorsement, and by sprinkler leakage, debris removal, cost of demolition, vandalism, malicious mischief, windstorm, and water damage; and such other risks as are customarily covered in similar projects or as are commonly required by private institutional mortgage investors for projects similar in construction, location and use. In addition to the above, any fixtures, equipment or other property within the Units which are to be financed by a mortgage to be purchased by FNMA or F1ILMC (regardless of whether or not such property is a part of the Common Area) must be covered in such "blanket" or "master" policy. All policies or property insurance shall provide that, despite any provisions giving the insurance carrier the right to elect to restore damage in lieu of a cash settlement, such option shall not be exercisable without the prior written approval of the Association (or any Insurance Trustee) or when in conflict with the provisions of any insurance trust agreement to which the Association may be a party, or any requirement by law. Any blanket policy of property insurance shall contain or have attached a standard mortgagee clause (without contribution) customarily used in the area in which the Project is located which must be endorsed to provide that any proceeds shall be paid to the Pioneer Pointe Condominium Owners Association in trust for the use and benefit of the Owners and their respective First Mortgagees, as their interests may appear. B. Public Liability Insurance. The Association shall obtain and maintain a comprehensive policy of public liability insurance covering all of the Common Areas and Facilities, commercial spaces and public ways (if any) in the Project, with a severability of interest endorsement or equivalent coverage which would preclude the insurer form denying the claim of a Condominium Owner because of the negligent acts of the Association, such Owner, or another Owner, with limits of no less that $1,000,000.00 covering all claims for personal injury and/or property damage arising out of a single occurrence, including protection against water damage liability, liability for non -owner and hired automobile, liability for property of others, and such other risked as are customarily covered in similar projects. The scope of coverage also includes all other coverage in the kinds and amounts required by private institutional mortgage investors of projects similar in construction, locating and use. The insurance must be endorsed to provide that any proceeds shall be paid to the Pioneer Pointe Condominium Owners Association in trust forr the use and benefit of the Owners and tier respective first Mortgagees, as their interest may appear. C. Workman's Compensation Insurance. The Association shall obtain and maintain workman's compensation and employer's liability insurance and all other similar insurance with respect to employees of the Association in the amounts and in the forms now or hereafter required by law. D. Governmental Requirements. Notwithstanding any other provisions contained herein to the contrary, the Association shall continuously maintain in effect such casualty, flood and liability insurance and a fidelity bond coverage 20 meeting the insurance and fidelity bond requirements for condominium projects established by Federal National Mortgage Association and Government National Mortgage Associations so long as either is a mortgagee or owner of a Condominium with the Project, except to the extent such coverage is not available or has been waived in writing by Federal National Mortgage Association or Government National Mortgage Association. E. Other Requirements. Each Owner and each First Mortgagee, if any, shall be beneficiaries of the policy in the percentage of common ownership. Certificates of insurance shall be issued to each Owner and Mortgagee upon request. 10.02 Insurance Policy Requirements. The Master Multi - Peril Property, Public Liability and Flood Insurance policies obtained by the Association pursuant to Section 10.01 above shall be subject to the following requirements: A. The named insured under any such policies shall be the Association, as a trustee for the Owners, or its authorized representative, including any trustee with which such Association may enter into any insurance trust agreement, or any successor trusts, each of which shall be referred to as the "Insurance Trustee" who shall have exclusive authority to negotiate losses under these policies and to perform such other functions as are necessary to accomplish this purpose. B. Insurance coverage obtained and maintained pursuant to the requirements of Section 10.01 shall not be brought into contribution with any insurance purchased by any Owner or such Owner's mortgagee. C. Coverage must no be prejudiced by any act or neglect of the Association, any employee or agent of the Association, or any Owner, or any failure of the Association to comply with any warranty or condition requiring any portion of the premises over which the Association has no control. D. Coverage may not be canceled or substantial modified (including cancellation for nonpayment of premium) without at lease thirty (30) days prior written notice to any and all insured's, including each First Mortgagee scheduled as a holder of a first mortgage in the applicable policy. E. All policies must contain a waiver of subrogation by the insurer as to any and all claims against the Association, the Owners and /or their respective agents, employees or tenants, and of any defenses based on coinsurance or on invalidism arising from he acts of the insured. F. Each hazard insurance policy shall be written by a hazard insurance carrier which has a financial rating by Best's Insurance Reports of Class VI or better. G. Policies shall be deemed unacceptable where under the terms of the carrier's charter, bylaws or policy, contributions or assessments may be made against a 21 Condominium Owner, such Owner's First Mortgagee or any First Mortgagee's designee or such designee's designee; by the terms of the carrier's charter, bylaws or policy, loss payment are contingent upon action by the carrier's board of directors, policyholders, or members; or the policy includes any limiting clauses (other that insurance conditions) which could prevent a Condominium Owner, his First Mortgagee or any First Mortgagee's designee or such designee's designee from collecting insurance proceeds. H. All policies of hazard insurance shall contain or have attached the standard mortgagee clause commonly accepted by private institutional mortgage investors in the area in which the Project is located. 10.03 Additional Coverage. The provisions of this Declaration shall not be construed to limit the power or authority of the Association to obtain and maintain insurance coverage in addition to any insurance coverage required by this Declaration, in such amounts and in such forms as the Association may deem appropriate form time to time. 10.04 Owner's Own Insurance. Each Owner, at his or her expense, may procure and maintain at all times fire and extended coverage insurance covering personal property of such Owner and additional fixtures and improvements added by such Owner against loss by fire and other casualties, including without limitation vandalism and malicious mischief. All Owners must provide fire and extended coverage insurance covering all interior areas of the Unit which are not Common Area. All policies providing such casualty insurance shall provide that they do not diminish the insurance carriers' coverage for liability arising under insurance polices obtained by the Association pursuant to the Article. Notwithstanding the provisions hereof, each Owner may obtain insurance at the Owner's own expense providing such other coverage upon such Owner's Condominium, such Owner's personal property, such Owner's personal liability, and covering such other risks as such Owner may deem appropriate provided that each such policy shall provide that it does not diminish the insurance carrier's coverage for liability arising under insurance policies obtained by the Association pursuant to this Article. If obtainable under industry practice without an unreasonable additional charge for such waiver, all such insurance shall contain a waiver of the insurance company's right of subrogation against the Association, the Declarant, the Manager, other Owners, and their respective servants, agents, and guests. 10.05 Review of Insurance. The Association shall review annually the coverage and policy limits of all insurance on the Project and adjust the same at its discretion. Such annual review may include an appraisal of the improvements in the Project by a representative of the insurance carrier or carriers providing the policy or policies on the Project or by such other qualified appraisers as the Association may select. 10.06 Copies of Owner's Insurance and Mortgage. Each Owner shall keep all insurable interior improvements on that Owner's Unit insured against fire and general hazards for an amount no less than the reasonable replacement value of the same. Said insurance shall be written with a reputable insurance company acceptable to the 22 Association in the name of the Unit owner with the Association as an additional insured. A copy of the policy with receipts from time to time evidencing payment of the premiums will be deposited with the Association on at least an annual basis. The insurance must contain a clause that it will not be cancelled without giving the Association at least thirty (30) days advance written notice. Owner must give the Association a copy of each and every Mortgage on the Unit when obtained and must advise the Association in a timely manner of any changes in the Mortgage or the Mortgagee. If the Association must pay to keep insurance in force on the Unit the cost of the same shall be treated as an assessment against the Owner and Unit. 10.07 Power of Attorney. Each Owner appoints the Association, or any Insurance Trustee or substitute Insurance Trustee designated by the Association, as attorney -in -fact for the purpose of purchasing and maintaining insurance, including: the collection and appropriate disposition of the proceeds thereof; the negotiation of losses and execution of releases of liability; the execution of all documents; and the performance of all other acts necessary to accomplish such purpose. ARTICLE 11. DAMAGE OR DESTRUCTION 11.01 Association as Attorney in Fact. All of the Owners irrevocably constitute and appoint the Association their true and lawful attorney in fact in their name, place and stead for the purpose of dealing with the Project upon its damage or destruction as hereinafter provided. Acceptance by any grantee of a deed from the Declarant or from any Owner shall constitute an appointment by said grantee of the Association's such grantee's attorney in fact as herein provided. As attorney in fact, the Association shall have full and complete authorization, right and power to make, execute, and deliver any contract, deed, or other instrument with respect to the interest of an Owner in which may be necessary or appropriate to exercise the powers herein granted. 11.02 Definition of Repair and Reconstruction. Repair and reconstruction of the the improvements as used herein means restoring the Project to substantially the same condition in which it existed prior to the damage or destruction, with each Unit and the Common Areas having substantially the same vertical and horizontal boundaries as before. 11.03 Procedures. In the event any part of the Project is damaged or destroyed, the Association shall proceed as follows: A. Notice to Eligible First Mortgage Holders. The Association shall give timely written notice to any and each Eligible First Mortgagee holding a first Mortgage on a Unit in the event of substantial damage to or destruction of such Unit or any part of the Common Areas. B. Estimate of Costs. As soon as practicable after an event causing damage to or destruction of any part of the Project, the Association shall obtain complete and 23 reliable estimates of the costs to repair and reconstruct that part of the Project damaged or destroyed. C. Sufficient Insurance. If the proceeds of the insurance maintained by the Association exceed the estimated costs to repair or reconstruct the damaged or destroyed part of the Project such repair and reconstruction shall be carried out. D. Insufficient Insurance — Less than 75% Destruction. If the proceeds of the insurance maintained by the Association are less than the estimated costs to repair and reconstruct the damaged or destroyed part of the Project and if less than seventy -five percent (75 %) of the Project is damaged or destroyed, such repair and reconstruction shall nevertheless be carried out. The Association shall levy a Special Assessment sufficient to provide funds to pay the actual costs of such repair and reconstruction to the extent that such insurance proceeds are insufficient to pay such costs. Such Special Assessment shall be allocated and collected as provided in Section 9.03 hereof, except that the vote therein specified shall be unnecessary. Further levies may be made in like manner if the amounts collected (together with the proceeds of insurance) are insufficient to pay all actual costs of such repair and reconstruction. E. Insufficient Insurance — 75% or More Destruction. If the proceeds of the insurance maintained by the Association are less than the estimated costs to repair and reconstruct the damaged or destroyed part of the Project and if seventy -five percent (75 %) or more of the Project is damaged or destroyed, such damage or destruction shall be repaired and reconstructed if, but only it, within one hundred (100) days following the damage or destruction, the Owners shall elect by a vote of at least seventy -five percent (75 %) of the total votes of the Association to carry our such repair and reconstruction. If, however, the owners shall not, within one hundred (100) days after such damage or destruction, elect by a vote of at least seventy -five percent (75 %) of the Total Votes of the Association to carry out such repair and reconstruction, the Association shall record in the office of the County Recorder of Madison County, Idaho a notice setting forth such facts. Upon the recording of such notice, the following shall occur: 1. The Project shall be deemed to be owned in common by the Owners; 2. The undivided interest in the Project owned in common which shall appertain to each Owner shall be the percentage of the undivided interest previously owned by such Owner in the Common Areas; 3. Any liens affecting any of the Condominiums shall be deemed to be transferred, in accordance with the existing priorities, to the undivided interest of the respective Owner in the Project; and 4. The Project shall be subject to an action for partition at the suit of any Owner, in which event the net proceeds of any sale resulting from such 24 suit for partition, together with the net proceeds of the insurance of the Project, if any, shall be considered as one fund and shall be divided among all Owners in a percentage equal to the percentage of undivided interest owned by each respective Owner in the Common Areas, as set forth in Exhibit "C" hereto, after first paying out of the respective share of each Owner, to the extent sufficient for the purpose, all liens on the undivided interest in the Project owned by such Owner. F. In no event shall an owner of a Unit or any other party have priority over any First Mortgagee holding a First Mortgage on such Unit with respect to the distribution to such Unit of any insurance proceeds. 11.04 Repair or Reconstruction. If the damage or destruction is to be repaired and reconstructed as provided above, the Association shall, as soon as practicable after receiving the said estimate of costs, commence and diligently pursue to completion the repair and reconstruction of that part of the Project damaged or destroyed. The Association may take all necessary or appropriate action to effect repair and reconstruction, as attorney in fact for the Owners, and no consent or other action by ay Owner shall be necessary in connection therewith, except as otherwise expressly provided herein. The Project shall be restored or repaired to substantially the same condition in which it existed prior to the damage or destruction, with each Unit and the Common Areas having the same vertical and horizontal boundaries as before. 11.05 Disbursement of Funds for Repair and Reconstruction. If repair or reconstruction is to occur, the insurance proceeds held by the Association and any amounts received from assessments made pursuant to Section 9.03 hereof shall constitute a fund of the payment of costs of repair and reconstruction after casualty. It shall be deemed that the first money disbursed in payment for costs of repair and reconstruction shall be made from insurance proceeds; if there is a balance after payment of all costs of such repair and reconstruction, such balance shall be distributed to the Owners in proportion to their respective percentages of Ownership of the Common Areas. 11.06 Amendment of Article. This Article 11 shall not be amended unless the Owners of all Condominiums in the Project unanimously consent and agree to such amendment in a duly executed and recorded instrument. ARTICLE 12. CONDEMNATION 12.01 Condemnation. If at any time or times all or any part of the Project shall be taken or condemned by any public authority under power of eminent domain, the provisions of this Article shall apply. A voluntary sale or conveyance of all or any part of the Project in lieu of condemnation, but under threat of condemnation, shall be deemed to be a taking by power of eminent domain. If any Unit or portion thereof or the Common Areas or Facilities or any portion thereof is made the subject matter of any condemnation or eminent domain proceeding or is otherwise sought to be acquired by a condemning 25 authority, the Board of Directors shall give prompt written notice of any such proceeding or proposed acquisition to each Owner in the Project and to any Eligible First Mortgagee holding a First Mortgage of a Unit in the Project. 12.02 Proceeds. All compensation, damages, and other proceeds from any such taking by power of eminent domain (hereinafter the "Condemnation Award ") shall be made payable to the Association and shall be distributed by the Board of Directors, on behalf of the Association, as herein provided. 12.03 Complete Taking. In the event the entire Project is taken by power of eminent domain, condominium ownership pursuant hereto shall terminate and the Condemnation Award shall be allocated among and distributed to the Owners in proportion to their respective undivided interests in the Common Areas. Such distribution shall be made by check payable jointly to the respective Owners and their respective Mortgagees, as appropriate. 12.04 Partial Taking. In the event less than the entire Project is taken by power of eminent domain, the following shall occur: A. Allocation of Award. As soon as practicable, the Board of Directors shall, on behalf of the Association, reasonably and in good faith, apportion the Condemnation Award between compensation and severance damages, or other proceeds, and shall allocate such apportioned amounts and pay the same to the Owners as follows: 1. The total amount apportioned to taking of or injury to the Common Areas shall be allocated among and distributed to all Owners (including Owners whose entire Units have been taken) in proportion to their respective undivided interests in the Common Areas; 2. The total amount apportioned to severance damages shall be allocated among and distributed to the Owners of those Condominiums that have not been taken, in proportion to their respective undivided interest in the Common Areas; 3. The respective amounts apportioned to the taking of or injury to a particular Unit shall be allocated and distributed to the Owner of such Unit; 4. The total amount apportioned to consequential damages and any other takings or injures shall be allocated and distributed as the Association determines to be equitable under the circumstances; 5. If apportionment or allocation is already established by negotiation, judicial decree, stature, or otherwise, the Association shall employ such apportionment and allocation to the extent it is relevant and applicable; 26 6. Distribution of allocated proceeds shall be made by check payable jointly to individual Owners and their respective Mortgagees, as appropriate; and 7. No provision of this Article 12 or any other provisions in this Declaration, the Articles, or the Bylaws shall entitle the Owner of a Unit or other party to priority over any First Mortgagee holding a First mortgage lien on such Unit with respect to the distribution to such Unit of the proceeds of any award, settlement, or proceeds from any eminent domain or condemnation proceeding. B. Continuation and Reorganization. If less than the entire Project is taken by power of eminent domain, condominium ownership pursuant hereto shall not terminate, but shall continue. In such event, the Project shall be reorganized as follows: 1. If any partial taking results in the taking of an entire Unit, the Owner thereof shall cease to be a Member of the Association and all voting rights and the undivided interest in the Common Areas appertaining to such Unit shall be reallocated to, and shall appertain to, the remaining Units in proportion to their respective undivided interests in the Common Areas. 2. If any partial taking results in the taking of a portion of a Unit and if no determination is made by the Board of Directors that such taking makes if impractical to use the remaining portion of such Unit for any lawful purpose permitted by this Declaration, then the fair market value of such remaining portion of the Unit shall be determined by the Board of Directors and all voting rights and the undivided interest in the Common Areas appertaining to such Unit shall be reduced in proportion to the diminution in fair market value of such Unit resulting from the taking. The voting rights and undivided interest in the Common Areas so divested from such Unit shall be reallocated to, and shall appertain to, such Unit and the other Units in the Project in proportion to their respective undivided interests in the Common Areas; provided, however, that such Unit shall participate in such reallocation on the basis of the undivided interest reduced in accordance with the preceding sentence. 3. If any partial taking results in the taking of a portion of a Unit and if there is a determination made by the Board of Directors that such taking makes it impractical to use the remaining portion of such Unit for any lawful purpose permitted by this Declaration, then all voting rights and the entire undivided interest in the Common Areas appertaining to such Unit shall be reallocated to, and shall appertain to, the remaining Units in proportion to their respective undivided interest in the Common Areas, 27 and the remaining portion of such Unit shall thenceforth be part of the Common Areas. 4. The Board of Directors shall have the duty and authority to make all determinations and to take all actions necessary or appropriate to effectuate reorganization of the Project under the provisions of this Section 12.04; provided, however, that if any such determination shall have been or such action taken by judicial decree, the Board of Directors shall defer thereto and proceed in accordance therewith. C. Repair and Reconstruction. Any repair and reconstruction necessitated by condemnation shall be governed by the provisions of Article 11 hereof for cases of damage or destruction provided, however, that the provisions of said Article dealing with sufficiency or inefficiency of insurance proceeds shall not be applicable. 12.05 Other Provisions. The Association shall represent the Owners in the condemnation proceedings or in negotiations, settlements and agreements with the condemning authority. Each Owner hereby appoints the Association as attorney -in -fact for such purpose. The Association may appoint a Director to act on behalf of the Owners, in carrying out the above functions, in lieu of the Association. ARTICLE 13. OBSOLESCENCE 13.01 Adoption of Plan. Owners holding seventy -five percent (75 %) or more of the Total Votes of the Association may agree that the Project is obsolete and adopt a written plan for the renewal and reconstruction of the Project. Written notice of adoption of such a plan shall be given to all Owners and First Mortgagees. 13.02 Payment for Renewal and Reconstruction. The Association shall levy a Special Assessment sufficient to provide funds to pay the estimated expenses of renewal or reconstruction. Such Special Assessment shall be allocated and collected as provided in Section 9.03 hereof, except that the vote therein specified shall be unnecessary. Further levies may be made in like manner if the amounts collected prove insufficient to pay the actual expenses of such renewal or reconstruction. In the event amounts collected pursuant hereto are in excess of the amounts required for renewal or reconstruction. In the event amounts collected pursuant hereto are in excess of the amounts required for renewal or reconstruction, such excess shall be distributed to the Owners in proportion to their respective percentages of ownership of the Common Areas. 13.03 Amendment of Article. This Article 13 shall not be amended unless the Owners of all of the Condominiums in the Project and all of the First Mortgages holding First Mortgage liens on Units in the Project, based on one vote for each First Mortgage, unanimously, consent and agree to such amendment in a duly executed and recorded instrument. 28 ARTICLE 14. MORTGAGE PROTECTION 14.01 Notices of Action. A holder, insurer, or guarantor of a First Mortgage, upon written request to the Association (such request to state the name and address of such holder, insurer, or guarantor and identify the Unit encumbered by such First Mortgage) shall be entitled to timely written notice of the following: A. Any proposed amendment of the Declaration, Bylaws, or Articles effecting a change in the boundaries of any Unit or the exclusive easement rights appertaining thereto, the interests in the Common Areas appurtenant to any Unit or the liability for the assessments of the Association appertaining thereto (except to the extent necessary to allow for the phasing of the Project as provided in the Condominium Act), the number of votes in the Association appertaining to any Unit (except to the extent necessary to allow for the expansion or phasing of the Project as provided in the Condominium Act), or the purposes to which any Unit or the Common Areas are restricted; B. Any proposed termination of the Condominium Project; C. Any condemnation loss or any casualty loss which affects a material portion of the Project or which affects any Unit of which there is a First Mortgage held, insured, or guaranteed by such holder, insurer, or guarantor; D. Any delinquency in the payment of assessments or charges owed by an Owner of a Unit subject to the First Mortgage of such holder, insurer or guarantor where such delinquency has continued for a period of sixty (60) days; E. Any lapse, cancellation or material modification of any insurance policy maintained by the Association pursuant to this Declaration. 14.02 Matters Requiring Prior Approval of 75% of Eligible First Mortgagees. Unless seventy -five percent (75 %) of the Eligible First Mortgagees which hold First Mortgage liens on Condominium Units in the Project (based upon one vote for each First Mortgage owner) have given their prior written approval, neither the Association nor the Owners shall be entitled to: A. Abandon or terminate the Project, except for abandonment or termination in the case of substantial destruction by fire or other casualty or in the case of taking by condemnation or eminent domain; B. Cause any amendment to be made to the Declaration, the Articles, or the Bylaws, which would change the percentage interests of the Owners in the Project except to the extent necessary to allow for the expansion or phasing of the Project as provided in the Condominium Act; 29 C. Partition or subdivide any Condominium; or D. By act or omission, seek to abandon, partition, subdivide, encumber, sell or transfer the Common Areas and Common Facilities of the Project. 14.03 Matters that Require Approval of 51% of Eligible First Mortgagees. Except to the extent that any provision of this Declaration requires approval of a greater number of First Mortgagees, unless at least fifty -one percent (51 %) of the Eligible First Mortgagee holding First Mortgage liens on Condominium Units in the Project (based upon one vote for each First Mortgage owner) have given their prior written approval, neither the Association nor the Owners shall be entitled to: A. Elect to terminate the Project after substantial destruction of the Project or substantial taking by exercise of the power of eminent domain of the Project; B. Repair and reconstruction of the Project following any partial condemnation or damage due to an insurable hazard in a manner different than as specified in Articles and of this Declaration; C. Materially amend any provisions of this Declaration, the Bylaws or the Articles to add any material provisions which establish, provide for, govern, or regulate any of the following: 1. Voting; 2. Assessments, assessment liens or subordination of such liens; 3. Reserves for maintenance, repair and replacement of Common Areas and Common Facilitates; 4. Insurance or fidelity bonds; 5. Rights to use the Common Areas and/or Common Facilities; 6. Responsibility for maintenance and/or repair of the Common Areas and/or Common Facilities; 7. Expansion or contraction of the Project or the addition, annexation or withdrawal of property to or from the Project; 8. The boundaries of any Unit; 9. The interests in the Common Areas and/or Facilities; 30 10. Convertibility of Units into Common Areas and/or Facilities and/or convertibility of Common Areas or Facilities into Units; 11. Leasing of Units; 12. Imposition of any right of first refusal or similar restriction on the right of a Unit Owner to sell, transfer, or otherwise convey such Owner's Unit; and 13. Any restoration or repair of the Project after a partial condemnation or damage due to any insurable hazard shall be substantial in accordance with the Declaration and the original plans and specifications unless the approval of the eligible holders for First Mortgages on Units to which at least fifty -one percent (51 %) of the votes of Units subject to mortgages held by such eligible holders are allocated, is obtained. As used in this Section 14.03, in Section 14.02, and in any other Section of this Declaration, Eligible First Mortgagees shall mean First Mortgagees who have delivered a written request for notice to the Association (such request to state the name and address of such First Mortgagee and identify the Unit encumbered by such First Mortgage). 14.04 Prior Liens Relate Only to Individual Units. All taxes, assessments, and charges which may become liens prior to the first mortgage under local law shall relate only to the individual Condominiums and not to the Project as a whole. 14.05 Subordination of Common Expense Lien. Any lien which the Association may have on any Unit in the Project for the payment of any assessments of the Association attributable to such Unit shall be subordinate to the lien or equivalent security interest of any First Mortgage of the Unit recorded on or before the date on which any such assessments became due. 14.06 Information Made Available to Mortgage Holder upon Request. Any First Mortgagee holding a first Mortgage on a Condominium shall, upon request, be entitled to: inspect the books and records of the Association during normal business hours; and receive an annual reviewed financial statement of the Association within ninety (90) days following the end of any fiscal year of the Project; and written notice of all meetings of the Association and be permitted to designate a representative to attend all such meetings. 14.07 Priority of Mortgage Holder in Event of Damage. In the event of substantial damage to or destruction of any Unit or any part of the Common Areas and/or Facilities, any Eligible First Mortgagee holding a First Mortgage on a Condominium shall be entitled to timely written notice of any such damage or destruction and no provision of the Declaration, Articles, or Bylaws or any amendment thereto shall entitle the Owner of a Unit or other party to priority over a First Mortgagee with respect to the distribution to such Unit of any insurance proceeds. 31 14.08 Priority of Mortgage Holder in Event of Condemnation. If any Unit or portion thereof or the Common Areas and Facilities or any portion thereof is made the subject matter of any condemnation or eminent domain proceeding or is otherwise sought to be acquired by a condemning authority, then any Eligible First Mortgagee holding a First Mortgage on a Unit shall be entitled to timely written notice of any such proceeding or proposed acquisition and no provision of the Declaration, Articles, or Bylaws (or amendment thereto), shall entitle the Owner of a Unit or other party to priority over a First Mortgagee with Respect to the Distribution to such Unit of the proceeds of any award or settlement. 14.09 Mortgage Holder Rights in Event of Foreclosure. Each holder of a First Mortgage lien on a Unit who comes into possession of the Unit by the virtue of mortgage, or by deed or assignment in lieu of foreclosure, or any purchaser at a foreclosure sale, shall take the Unit free of any claims for unpaid assessments and charges against the Unit which accrue prior to the time such holder comes into possession of the Unit, except for claims for a pro rata share of such assessments or charges resulting from a pro rata reallocation of such assessments or charges to all Units in the Project, including the Unit which is the subject of such mortgaged Unit. 14.10 Notices to First Mortgage Holders. The Association shall give each Eligible First Mortgagee holding a First Mortgage on a Unit prompt notice of any default in the Unit Mortgagor's obligations under the Condominium documents not cured within thirty (30) days of default. 14.11 No Right of First Refusal. No "right of first refusal" shall be included in or added by amendment to the Declaration, Articles, or Bylaws. 14.12 Amendment. No Provision of this Article shall be amended without the prior written consent of at least seventy-five percent (75 %) of all Eligible First Mortgagees holding First Mortgages on Units in the Project, based on one vote for each First Mortgage, by amendment in a duly executed and recorded instrument. ARTICLE 15. COMPLIANCE WITH DECLARATION AND BYLAWS 15.01 Compliance. Each Owner shall comply strictly with the provisions of this Declaration, the Articles and Bylaws of the Association, the rules and regulations promulgated by the Association, and the decisions and resolutions of the Association adopted thereto, as the same may lawfully be modified and amended from time to time. Failure to comply with any of the same shall be grounds for an action to recover sums due to damages or for injunctive relief or for both, maintainable by the Association or by aggrieved Owner. 15.02 Enforcement of Remedies. The obligations, provision, covenants, restrictions, and conditions contained in this Declaration, or in any supplemental or amended Declaration, with respect to the Association or Condominiums within the Project shall be 32 enforceable by the Declarant, the Association, or by any Owner of a Condominium within the Project, subject to this Declaration, by a proceeding for a prohibitive or mandatory injunction, or by a suit or action to recover damages or to recover any amount due or unpaid. The obligations, provisions, covenants, restrictions, and conditions contained in this Declaration, or in any supplemental or amended Declaration, with respect to a person or entity or property of a person or entity other than the Association or the Declarant shall be enforceable by the Declarant or by the Association or by an aggrieved Owner by a proceeding for a prohibitive or mandatory injunction or by suit or action to recover damages or to recover any amount due or unpaid. ARTICLE 16. GENERAL PROVISIONS 16.01 Intent and Purpose. The provisions of this Declaration, and any supplemental or amended Declaration, shall be liberally construed to effectuate the purpose of creating a uniform plan for the development and operation of a Condominium Project. Failure to enforce any provision, restriction, covenant, or condition contained in this Declaration, or in any supplemental or amended Declaration, shall not operate as a waiver of any such provision, restriction; covenant, or condition or of any other provisions, restrictions, covenants, or conditions. 16.02 Construction. The provisions of this Declaration shall be in addition and supplemental to the provisions of the Condominium Act and all other provisions of law. Whenever used herein, unless the context shall otherwise require, the singular shall included the plural, the plural shall include the singular, the whole shall include any part thereof, and any gender shall include both genders. The Article and Section headings set forth herein are for convenience and reference only and are not intended to expand, limit, or otherwise affect the meaning or interpretation of this Declaration or any provision hereof. The Provisions hereof shall be deemed independent and severable, and the invalidity or partial invalidity or unenforceability of any one provision or portion thereof shall not affect the validity or enforceability of any other provision hereof. 16.03 Notices and Registration of Mailing Address. Each Owner shall register from time to time with the Association his current mailing address. All notices, demands, and other communications to any Owner as provided for in this Declaration shall be in writing and shall be sufficient for all purposes if personally served or if sent by first class U.S. mail postage prepaid, addressed to the Owner at his registered mailing address or, if no address has been register, to the Unit of such Owner. All notices, demands, and other communications to the Association as provided for in this Declaration shall be in writing and shall be sufficient for all purposes if personally served or if sent by first class U.S. mail, postage prepaid, addressed to the Association at its offices at: 33 Or to such other address as the Association may hereafter specify to the Owners in writing. Any notice, demand, or communication referred to in this Declaration shall be deemed to have been given and received when personally served or when deposited in the U.S. mail, postage prepaid, and in the form provided for in this Section, as the case may be. 16.04 Review. Any Owner may at any reasonable time, upon appointment and at his own expense, cause a review or inspection to be made of the books and records maintained by the Association. The Association, at the expense of the Common Expense Fund, shall obtain a review, by certified public accountants, of all books and records pertaining to the Project at no greater than annual intervals and copies thereof shall be furnished to the Owners. 16.05 Disclosure of Information. Upon the written request of any person or entity that has either an interest or a prospective interest in a Condominium, the Association shall, within a reasonable time, provide such person or entity with a copy of a reviewed financial statement of the Association for the immediately preceding fiscal year. The Association shall, upon request, during normal business hours or under reasonable circumstances, make available to Owners, lenders, and holders and insurers of any First Mortgage current copies of the Declaration, Bylaws, and other rules governing the Project and other books, records and financial statements of the Association. The Association shall also, upon request, during normal business hours and under reasonable circumstances, make available to prospective purchasers current copies of the Declaration, Bylaws, other rules governing the Project, and the most recent reviewed financial statement for the Association, if such is prepared. 16.06 Amendment. Except as otherwise provided herein, this Declaration may be amended if Owners holding at least sixty -seven percent (67 %) of the Total Votes in the Association consent and agree to such amendment by instruments which are duly recorded in the Office of the Recorder of Madison County, Idaho. 16.07 Termination. Except as otherwise provided by law or in this Declaration, in the case of substantial destruction by fire or other casualty or in the case of a taking by condemnation or eminent domain, the prior written approval of all of the Owners of Condominium Units in the Project shall be required before this Declaration is terminated. 16.08 Effective Date. This Declaration shall be effective upon recording. 16.09 Agent for Service. The name and address of the person to receive service of process in all cases provided by the Condominium Act shall be the registered agent and address of the Association as shown in the official corporate records maintained in the office of the Idaho Secretary of State. On the date of this Declaration, the registered agent of the Association is: 34 16.10 Limitation on Association's Liability. The Association shall not be liable for any failure of water service or other utility service (if any) to be obtained and paid for by the Association hereunder, or for injury or damage to any person or property caused by the elements or by another Owner or person in or upon the Project, or resulting from electricity, water, rain, snow, or ice which may leak or flow from outside or from any parts of the Building or its drains, pipes, conduits, appliances, or equipment, or from any other place, unless caused be the grossly negligent or willful misconduct of the Association. No diminution or abatement of any assessments under this Declaration shall be claimed or allowed for inconvenience or discomfort arising from the making of any repairs or improvements to or maintaining the Project or any part thereof, or from, any action taken to comply with the provisions of this Declaration or with the laws, ordinances, regulations, rules, or order of any governmental authority. 16.11 Owner's Obligations. All obligations of an Owner, under and by virtue of the provisions contained in this Declaration shall continue, notwithstanding that such Owner may be leasing, renting, or selling under contract such Owner's Condominium. The Owner of a Condominium within the Project shall have no obligation for expenses or other obligations accruing after he coveys such Condominium. 16.12 Rights of Action. The Association and any aggrieved Owner shall be granted a right of action against any other Owners for failure to comply with the provisions of the Declaration, Bylaws, or equivalent documents, or with decisions of the Association which are made pursuant to authority granted the Association in such documents. Owners shall have similar rights of action against the Association. 16.13 HUD, FNMA, VA, GNMA and FHLMC Requirements. Notwithstanding anything herein to the contrary, any provisions of this Declaration, Bylaws or other Association documents which would not permit the Project to qualify for FHA, VA, HUD, FNMA, GNMA and FHLMC lending, are to be disregarded and are null and void. 35 BYLAWS OF PIONEER POINTE CONDOMINIUM OWNERS ASSOCIATION, INC. ARTICLE 1. NAME AND LOCTION 1.01 The name of the Association is Pioneer Pointe Condominium Owners Association, Inc., hereinafter referred to as the "Association." The principle office of the corporation shall be located at: But, meetings of Members and Directors may be held at such places within the State of Idaho, as may be designated by the Board of Directors. ARTICLE 2. DEFINTIONS 2.01 Association: Shall mean and refer to the Pioneer Pointe Condominium. Owners Association, Inc., its successors and assigns, an Idaho nonprofit corporation. 2.02 Common Areas: Shall mean all real property owned by the Association for the common use and enjoyment of the Owners. 2.03 Declarant: Shall mean and refer to Idaho limited liability company. , an 2.04 Declaration: Shall mean and refer to the Declaration of Covenants, Conditions, and Restrictions of the Pioneer Pointe Condominiums, applicable to the Property as recorded in the Office of the Madison County Recorder. 2.05 Member: Shall mean and refer to those persons and entities entitled to membership in the Association and provided in the Declaration. 2.06 Property: Shall mean and refer to that certain real property in Madison County, Idaho more fully described in the Declaration. 2.07 Owner: Shall mean and refer to the record owner, whether one or more persons or entities, of the fee simple title to any Unit on the Property, as more fully described in 41 the Declaration. The term "Owner" shall include contract sellers, but exclude those having such interest merely as security for the performance of an obligation. Every Owner is a Member of the Association, and every Member is an Owner. 2.08 Unit: Shall mean and refer to each Condominium Unit on the Property as shown upon the recorded condominium map of the Property, and as more fully defined in the Declaration. ARTICLE 3. MEETINGS OF MEMBERS 3.01 Annual Meetings. The annual meetings of the Members shall be held annually on the first Wednesday in March, at the hour of 10 o'clock a.m. If the day for the annual meeting of the Members is a legal holiday, the meeting will be held the same hour on the next day following that is not a legal holiday. 3.02 Special Meetings. Special meetings of the Members may be called at any time by the President or the Board of Directors, or upon written request of the Members, who are entitled to vote, one -fourth (1/4) of all the votes of Class A membership. 3.03 Notice of Meetings. Written notice of each meeting of the Members shall be given by, or at the direction of, the Secretary or person authorized to call the meeting, by mailing a copy of such notice, postage prepaid, at least 15 days before such meeting to each Member entitled to vote, addressed to the Member's address last appearing on the books of the Association, or supplied by such Member to the Association for the purpose of notice. Such notice shall specify the place, day and hour of the meeting, and, in the case of a special meeting, the purpose of the meeting. 3.04 Quorum. The presence at the meeting of Members entitled to cast, or of proxies entitled to cast, thirty percent (30 %) of the votes of each class of membership shall constitute a quorum for any action except as otherwise provided in the Articles of Incorporation, the Declaration, or these Bylaws. If, however, such quorum shall not be present or represented at any meeting, the Members entitled to vote shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. 3.05 Proxies. At all meetings of Members, each Member may vote in person or by proxy. All proxies shall be in writing and filed with the Secretary. Every proxy shall be revocable and shall automatically cease upon eleven (11) months from the date thereof, or upon conveyance by the Member of his Unit. 3.06 Action Without Meeting. The Members shall have the right to take any action in the absence of a meeting which they could take at a meeting by obtaining the written approval of all the Members. Any action so approved shall have the same effect as though taken at a meeting of the Members. 1 42 ARTICLE 4. BOARD OF DIRECTORS 4.01 Number. The affairs of this Association shall be managed by a Board of three (3) Directors (the "Board ") 4.02 Term of Office. At the initial meeting, the members shall elect one Director for a term of one (1) year, one Director for a term of two (2) years and one Director for a term of three (3) years; and at each annual meeting thereafter, the Members shall elect one Director for a term of three (3) years. 4.03 Removal. Any Director may be removed from the Board, with or without cause, by a majority vote of the Members of the Association. In the event of the death, resignation, or removal of a Director, his or her successor shall be selected by the remaining members of the Board, and shall serve for the unexpired term of his or her predecessor. 4.04 Compensation. No Director shall receive compensation of any service rendered to the Association. However, any Director may be reimbursed for actual expenses incurred in the performance of his or her duties. 4.05 Action Without Meeting. The Directors shall have the right to take any action in the absence of a meeting which they could take at a meeting by obtaining the written approval of all the Directors. Any action shall have the same effect as though taken at a meeting of the Directors. 4.06 Management Committee. The full Board of Directors shall compromise the "Management Committee" as defined and referred to in the Declaration. The Board shall therefore perform all functions of the Management Committee contemplated by the Declaration. 4.07 Regular Meetings. Regular meetings of the Board of Directors shall be held at least annually without notice, at such place and hour as may be fixed from time to time by resolution of the Board. Should said meeting fall upon a legal holiday, then that meeting shall be held at the same time on the next day which is not a legal holiday. 4.08 Special Meetings. Special meetings of the Board of Directors shall be held when called by the President of the Association, or by any two (2) Directors, after not less than three (3) days notice to each Director. 4.09 Quorum. A majority of the number of Directors shall constitute a quorum for the transaction of business. Every act or decision done or made by a majority of the Directors present at a duly held meeting shall be regarded as the act of the Board. 43 ARTICLE 5. POWERS AND DUTIES OF THE BOARD OF DIRECTORS 5.01 Powers. The Board of Directors shall have the power to: A. Adopt and publish rules and regulations governing the use of the Common Areas and Facilities, and the personal conduct of the Members and their guest thereon, and to establish penalties for the infraction thereof; B. Exercise for the Association all powers, duties and authority vested in or delegated to this Association and not reserved to the Members by other provisions of these Bylaws, the Articles of Incorporation, or the Declaration; C. Declare the office of a member of the Board of Directors to be vacant in the event such member shall be absent from three (3) consecutive regular meetings of the Board of Directors; and D. Employ a manager, a management company, an independent contractor, or such other employed as they deem necessary, and to prescribe their duties. 5.02 Duties. It shall be the duty of the Board of Directors to: A. Cause to be kept a complete record of all its acts and corporate affairs and to present a statement thereof to the members at the annual meeting of the Members, or at any special meeting when such statement is requested in writing by one- fourth (1/4) of the Class A members who are entitled to vote; B. Supervise all officers, agents and employees of this Association, and to see that their duties are properly performed; C. As more fully provided in the Declaration, to: 1. Fix the amount of the annual assessment against each Unit by December 15 of the year preceding the year in which such assessment shall be payable; 2. Send written notice of each special assessment to every Owner subject thereto at least thirty (30) days in advance of each special assessment due date; and 3. Foreclose the lien against any Unit for which assessments are not paid within thirty (30) days after due date or bring an action of law against the Owner personally obligated to pay the same. D. Issue, or cause an appropriate officer to issue, upon demand by any person, setting forth whether or not any assessment has been paid. A p a reasonable charge may be made by the Board for the issuance of these certificates. 44 IN WITNESS WHEREOF, we, being all of the Directors of the Pioneer Pointe Condominium Owners Association, Inc., have hereunto set our hands this day of , 2009. 1 1 48 ET _n m m - cr 0 w N ? - 0 - =r a - -0 r- CD c Q.-O U) m 0 0 ;:L m m D) =r 0 �Q 3 c 0 3 Z m m :3, CD 0 0 0 (D * CD 'a 0 @ ---0 (/) 0 0, 0 CD = CD 3 :_' > W CD =_ CD . 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