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HomeMy WebLinkAboutCOVENANTS - 19-00138 - 12th W & Hwy. 33WHEN RECORDED RETURN TO: Mitchel C. Neibaur P.O. Box 217, Rexburg, ID 83440 I , aI MAR R 2 5 2019 CR OF HUNG :rofle No. 421800 DAY Mar 2019 At 11 O'Clock 04 AM KIM H. MUIR Fee MADISON CO RECORDER 140 ty RecorDepuded at Request of ALLIANCE TITLE - REXBURG OFFICE OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR REXBURG WEST SUBDIVISION THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR REXBURG WEST SUBDIVISION ("Declaration") is made by the Declarants effective as of the Effective Date. SECTION ONE Purpose and Applicable Real Property This Declaration is made for the purpose of enhancing and protectingthe value, attractiveness, and desirability of the Lots constituting the Subdivision and to provide for the maintenance, repair and replacement of streets and utilities in the Subdivision. Declarants declare that the real property, and each part of such real property, constituting the Subdivision shall be held, sold and conveyed only subject to the covenants, conditions and restrictions contained in this Declaration, which constitute covenants running with the land that are and shall be binding on all Owners and all other Persons having any right, title or interest in any real property, or any part of such real property, in the Subdivision, their heirs, successors and assigns. This Declaration shall Inure to the benefit of each Owner. SECTION TWO Definitions In addition to the other terms defined elsewhere in this Declaration, the following terms shall have the following meanings: 2.1. "ACC" shall mean the Architectural Control Committee that shall consist of three or more members as appointed from time to time by Grantor. Members of the ACC may, but need not, be members of the Board of Directors of Grantor. 2.2. "Association" shall mean an association formed as a non-profit corporation as provided in Section Six of this Declaration. 2.3. "Declarants" means all the Owners of Lots in the Subdivision on the Effective Date, which Owners all have executed this Declaration. 2.4. "Effective Date" shall mean the date this Declaration is recorded in the office of the County Recorder of Madison County, Idaho. 2.5. "Grantor" means 12'^ West Development, LLC, an Idaho Limited Liability Company; its successors and assigns, who own the Subdivision. This instrument Sited Documentation/DevelopmenVRexburg West, LLC/CCRS 03.01.2019 as an accommodation only. It has not been examined as to it's execution, Insurability or effect on title. page 1 of 9 page 421800 2.6. "Lot" means a plated and identified lot in the Subdivision. 2.7. "Ordinances" means all governmental zoning, building, use, parking and other ordinances applicable to the Subdivision, a Lot, any Improvement to be constructed on a Lot or any business to be operated on a Lot. 2.8. "Owner' means an owner of a Lot in the Subdivision. With respect to any matter for which a written consent of the Owners is required or permitted, each Owner shall have one (1) vote for each Lot in the Subdivision the Owner owns. Grantor shall have one (1) vote for each unsold Lot owned by Grantor. For purposes of this Declaration, an unsold Lot means a Lot owned by Grantor that Grantor has not sold to any Person. Once a Lot is sold by Grantor, even if subsequently repossessed or repurchased by Grantor, such Lot will no longer be deemed an unsold Lot. 2.9. "Person" means an individual, sole proprietorship, corporation, limited liability company, partnership or any other legal entity. 2.10. "Plans" means a completed set of plans and specifications in form acceptable to the ACC for each building, improvement, sign and landscaping to be constructed or placed on a Lot. 2.11. "Subdivision" means the 120' West Development Subdivision No. 1, City of Rexburg, Madison County, Idaho to be recorded in the Official Records of Madison County, Idaho. 2.12. "Three -Fourths Majority Consent" means a written consent executed by Owners having at least three-fourths of the total outstanding votes. SECTION THREE Use Restrictions 3.1. Permitted Businesses. Lots in the Subdivision are to be used for Municipal, Residential and Commercial Businesses permitted by this Declaration. Municipal purposes permitted shall include but not be limited to Offices, Parks, Water Features, Walking/ Biking Paths, Emergency and Medical Buildings and Services, etc. Residential purposes permitted shall include but not be limited to single family and multiple family and multi-level buildings; as authorized and permitted by the City of Rexburg. Business purposes permitted shall include but not be limited to retail, professional, entertainment and restaurant businesses. Example of such permitted businesses are medical and dental offices, business offices, entertainment facilities such as theaters, auto sales, retail stores, child care centers, food services, banks and other financial institutions, restaurants and other similar businesses approved in writing by the ACC. Except as approved in writing in advance by the ACC in its sole discretion; industrial uses, manufacturing, automobile and other repair services, storage units and outside storage facilities shall not be permitted. Prior to the construction of any improvements on a Lot, the Owner of the Lot must advise the ACC in writing of the intended business use for the Lot and receive the ACC's written approval for such use. 3.2. Parkin. Parking constructed and made available on each Lot shall comply in all respects with the parking ordinances of the City of Rexburg and other applicable Ordinances in effect on the Effective Date and, if more restrictive and mandatory, in effect at any time thereafter, including both for the building and other improvements constructed on the Lot and the type of business conducted on the Lot. Documentation/Development/Rexburg West, LLC/CCRS 03-01-2019 page 2 of 9 page:421800 No parking shall be permitted on any streets not properly identified and authorized and appropriately identified; within the Subdivision at anytime or for any purpose. 3.3. Signs. Any and all signs used or constructed on a Lot shall always comply with all applicable Ordinances. All Plans for any signs must be submitted to and approved by the ACC in writing prior to construction. No billboard shall be permitted on any Lot in the Subdivision. 3.4. Nuisances. No noxious or offensive activity shall be carried on upon any Lot, nor shall anything be done on any Lot that maybe or may become an annoyance or nuisance to the other Lots in the Subdivision or detract from their value. 3.5. Temporary Structures. No structure of a temporary character, including but not limited to trailer, tent, shack, garage or barn, shall be placed or used at anytime temporarily or permanently on any Lot. 3.6. No Sheds or Other Out Buildings. No sheds or other out buildings of any type or structure may be constructed or Installed on any Lot, unless approved in writing in advance by the ACC. 3.7. Garbage and Waste Material. No Lot shall be used, shared or maintained as a dumping ground for rubbish, trash, garbage or other waste. All waste will be kept in sanitary containers which shall be set out only on pick up days for the City of Rexburg. No trash, refuse pile, junk or inoperable vehicle, underbrush, compost pile or other unsightly growth or object shall be allowed to accumulate or remain on any Lot. During any construction period, weekly and additional periodic efforts shall be made by the Owner or his contractor to pick up scrap materials and other construction debris and to dispose of said materials. 3.8. Vacant lot. All vacant Lots shall be mowed regularly, kept free of weeds and other unsightly vegetation or materials, and maintained in a clean and sightly manner. 3.9. Compliance with Ordinances and Environmental Laws. In all cases, ultimate responsibility to comply with all statutes, Ordinances, rules and regulations of federal, state and local governments, including those relating to hazardous waste, rests with the Owner and contractor employed by the Owner. The Owner of each Lot shall defend, indemnify and hold harmless the ACC, the Grantor, the Association (if applicable), and each of them (including all reasonable attorney fees and expenses incurred) in the event of Owner's, or Owner's contractor's, failure to comply with such laws. SECTION FOUR Building Restrictions 4.1. Plans. The ACC shall be furnished a completed set of Plans for each building, other improvement, sign and landscaping proposed to be constructed or placed on a Lot, or any subsequent addition or modification thereto, prior to any construction or placement. The ACC has the sole and full Power and authority to approve or disapprove any Plans. If disapproved, the Owner shall have no authority to challenge the disapproval. If approved, a copy of the Plans shall be retained by the ACC until the building, other improvement, sign or landscaping is completed to insure construction or placement in compliance with the Plans. Documentation/Development/Rexburg West, LLC/CCRS 03-01.2019 Page 3 of 9 pager 421800 4.2. Building Requirements. Without limiting the authority of the ACC to approve or disapprove Plans, and in addition to any other requirements of the ACC, unless otherwise consented to in writing in advance by the ACC, each building constructed on a Lot shall comply with the City of Rexburg Building Height restrictions and guidelines. 4.3. Building a Design,. The building or other improvement design and site location as set forth in the Plans shall be subject to the approval or disapproval of the ACC. For purposes of guidelines only and not Jim itation on the ACCs rights to approve or disapprove any Plans, each building constructed on a Lot shall be oriented toward facing any street and/or parking lots. Buildings should incorporate changes in direction and be divided into varying heights and dimensions so as not to be in a square or rectangular shape. Such changes and variations may include building offsets, projections, changes in elevation or horizontal direction, sheltering roofs, terraces, distinct patterns of division in visible exterior wall materials, and/or use of doors and windows. At least twenty-five percent (25%) of any outside and visible wall of a building on any Lot that faces any street or parking lot; must incorporate stone, brick or similar quality material as a facing. The area of the front of the building shall be calculated by multiplying the horizontal distance of the building from end wall to end wall by the vertical distance from the entrance ground elevation to the eaves. If the front is on a gable end, the average eve height will be used. Windows and/or doors will be subtracted in calculating the area of the front of the building. 4.4. Building Setbacks. The minimum building setback from the Lot side property lines shall be the greater of five (5) feet or the minimum City of Rexburg Ordinance requirement. The minimum building setbacks for the front and back property lines of the Lot shall be a minimum of the greater often (10) feet or the minimum City of Rexburg Ordinance requirement. The setback distance for the front property line shall be measured from the ten -foot easement line running parallel with the street. Setbacks shall be measured from the furthest extending portion of the building to the property or easement line, as the case may be, except eaves, bay windows, porches, canopies or awnings may encroach Into the setback area by no more than the lesser of two (2) feet or the distance permitted by the City of Rexburg Ordinance requirements. 4.5, Landscaoine. Landscaping shall be done in a manner pleasing to behold and compatible with adjoining Lots. The Owner must submit plans to the ACC and receive written approval from the ACC prior to development. At least ten percent (10%) of the area of a Lot shall be landscaped with a mixture of shrubs, shade trees and flower beds. A minimum Seven -foot strip, as per the City of Rexburg Ordinances; along the street curb shall be planted in a mixture of grass, shrubs and shade trees as a buffer between the street and the parking areas situated on the Lot. This Seven -foot strip counts toward the minimum ten percent (10%) landscaping requirement. 4.6. Easements. Easements for installation and maintenance of utilities such as electric power, telephone lines, gas lines, water lines, sewer lines and drainage facilities are reserved as shown on the recorded plat for the Subdivision. No building or other improvement shall be constructed within any easement that may damage or interfere with the installation, maintenance or operation of any utilities, or that may change the direction of flow of drainage channels In the easement. The easement areas of each Lot and all utility improvements therein shall be maintained continuously by the Owner of the Lot, except for those improvements for which a public authority or utility company is responsible. 4.7. Fences. Except as provided for approved decoration, health and safety and visual screening; fencing within the Subdivision is discouraged. The Plans for any fence proposed to be constructed by any Documentation/Development/Rexburg West, LLC/CCRs 03-01-2019 page 4 of 9 page421800 Owner on a Lot shall be submitted by the Owner to the ACC and receive written approval of the ACC prior to construction. Current City of Rexburg Ordinance in effect; or lacking a current ordinance; No fence shall be constructed higher than six (6) feet from ground level. Any fence higher than three (3) feet from ground level shall not extend beyond the line of existing buildings. The maximum height of any fence, wall or other sight obscuring object within fifteen (15) feet of a street or other public right of way, or that otherwise extends beyond the line of existing buildings, shall be three (3) feet. All fences shall be maintained and kept in good repair and sightly condition. 4.8. Time for Construction. The Owner shall have no more than two (2) years from the date of purchase of a Lot to construct a building and to commence business operations on the Lot. if the Owner does not comply with this requirement, upon written notice by the Grantor to the Owner at any time after the expiration of the two-year period, Grantor shall have the right, in Grantor's sole discretion, to repurchase the Lot from the Owner for the same price that the Owner purchased the Lot, without interest or other additional charge. Any buildings, materials, improvements, construction, etc.; shall be forfeited with the Lot to the Grantor as liquidated damages. If Grantor exercises this right, Owner shall convey the Lot to Grantor by Warranty Deed free and clear of any liens or other encumbrances upon payment of the purchase price. The closing for the purchase of the Lot by Grantor and payment of the purchase price shall take place within sixty (60) days after Grantor's written notice to Owner of its election to purchase the Lot. At the closing, Grantor shall pay the purchase price In cash less any portion of the purchase price that Grantor elects to use to pay any liens or other encumbrances on the Lot. Real property taxes shall be pro- rated as of the date of closing. The Owner, at the Owner's expense, shall provide to Grantor a standard owner's title insurance policy insuring fee simple title to the Lot in Grantor free and clear of any liens or other encumbrances. Owner shall be liable for and pay all other closing costs and expenses required to transfer title and ownership to Grantor. SECTION FIVE Covenant to Pav Monthly and Special Assessments 5.1. Monthly Assessments. The ACC shall assess Each Owner monthly assessments for the cost of maintenance and operations of all areas, improvements and facilities; multiplies by a fraction, the numerator of which is the land acreage of each such lot and the denominator of which is the total land acreage of all platted lots within the entire property. The foregoing notwithstanding, Grantor shall have no obligation to pay monthly assessments with respect to unsold Lots. Monthly dues shall be paid to ACC, or to ACC's successor or assigns, on or before the 1st day of each month. ACC shall keep the funds in a separate bank, savings and loan or credit union, none - interest bearing account. Such funds shall be devoted to payment for snow removal from streets, maintenance, repair and replacement of streets, and maintenance, repair and replacement of utilities to the Lot line (but not utilities within each individual Lot) in or for the Subdivision, and administration, accounting and legal expenses, including without limitation attorney fees and expenses incurred by the ACC, Grantor or, if applicable, the Association to enforce anyof the terms or provisions of this Declaration. ADD shall determine, in ACC's sole discretion, the maintenance, repairs, replacements and other expenses for which such funds shall be used. On or before the 1st day of April of each year, Grantor shall provide to each Owner a report showing the amount of dues collected and the use of the funds during the prior twelve-month period ending December 31st of the previous year. Documentation/Development/Rexburg West, LLC/CCRS 03-01-2019 page 5 of 9 page:421800 5.2. Special Assessments. If monthly assessments are insufficient to pay for administration, accounting and legal expenses, snow removal, necessary repairs, maintenance or replacements of streets or applicable utilities, and/or needed improvements, additions or modifications to any such facilities, then ACC shall have the right to assess the Owners a sum determined by ACC per Lot for use strictly for such purposes. All Owners shall be assessed the same amount for each Lot. The foregoing notwithstanding, Grantor shall have no obligation to pay special assessments with respect to unsold Lots. Such assessments shall be made by written notice and shall be paid within thirty (30) days after receipt of such notice. All amounts collected for special assessments and funds therefrom used shall be included In the annual report provided by ACC to the Owners pursuant to paragraph 5.1 of this Declaration. 5.3. Covenant to Pay Assessments. Liens. etc For each lot owned within the property, and the owner of any lot, by acceptance of a deed therefore, whether or not it shall be expressed in such deed, is deemed to covenant and agree to pay to the ACC the Assessments described in this section. Such assessments, together with interest, costs and reasonable attorneys fees, shall be a charge on the land and shall be a continuing lien upon the property against which such assessment is made, and shall also be the personal obligation of the person who was the owner of such property at the time the assessment fell due. The personal obligation for delinquent assessments shall pass to the Owners successors in title assumed by them. SECTION SIX Association At anytime after Grantor has sold at leastfive (5) Lots, Grantor may elect to form an Idaho nonprofit corporation to be named "Association of Owners in 12' West Development Subdivision, Inc." or such other name as Grantor shall determine ("Association"), pursuant to Articles of Incorporation and with bylaws having such terms and provisions as Grantor shall elect in its sole discretion, but consistent with the terms and provisions of this Declaration. If Grantor forms the Association, each then Owner shall thereupon automatically become a member of the Association and, if requested by Grantor, shall execute documents evidencing membership, and each Person who thereafter purchases a Lot shall upon the purchase of the Lot automatically become a member of the Association. The Articles of Incorporation of the Association shall specify, among other purposes and duties of the Association, enforcement of all covenants, conditions and restrictions contained in this Declaration, and the maintenance, repair and replacement of the streets and utilities (but not utilities within each individual Lot) in the Subdivision, and the transaction of such other business as may be permitted by law. The Articles of Incorporation or bylaws of the Association shall further provide for the collection of dues and special assessments consistent with this Declaration. The voting rights of members of the Association shall be consistent with the voting rights of Owner's in this Declaration. Amendments to the Articles of incorporation or bylaws, once implemented by Grantor, shall require a Three -Fourths Majority Consent of Existing Owners or equivalent vote at a duly called meeting of members of the Association. Grantor shall be entitled to, and obligated to accept, membership in the Association, and shall have the benefit and bear the burdens of such membership and voting rights with respect to unsold Lots, except that Grantor shall have no obligations to pay annual dues or special assessments with respect to unsold Lots. Upon the formation of the Association, all rights and duties of Grantor under this Declaration shall become the rights and dues of the Association, including the right to appoint the ACC. The foregoing notwithstanding, Grantor shall be under no obligation to form an Association and may decide to form an Association at any time after the sale of at least five (5) Lots or may decide never to form an Association. Documentation/Development/Rexburg West, LLC/CORS 03-01-2019 Page 6 of 9 page!421800 SECTION SEVEN Enforcement This Declaration may be enforced by the ACC, Grantor, the Association or any Owner. If any Owner defaults in any obligation under this Declaration or otherwise breaches any term or provision of this Declaration resulting in the ACC, Grantor, the Association or any Owner; sending a notice of violation to the defaulting or breaching Owner, the defaulting or breaching Owner shall pay to the ACC, Grantor or Association, as the case may be, all attorney fees and costs incurred, with or without suit, by it to notify the defaulting or breaching Owner and to otherwise enforce this Declaration. Any amount payable by the defaulting or breaching Owner for such attorney fees and costs not paid within ten (10) days after demand by the ACC, Grantor or the Association, as the case may be, shall be immediately due and payable and shall thereafter bear interest at the rate of twelve percent (12%) per annum until paid in full. SECTION EIGHT Remedies The ACC, Grantor, Association or any Owner seeking to enforce this Declaration shall be entitled to all remedies available at law or equity against any Owner that defaults under, or otherwise breaches, any term or provision of this Declaration, with all remedies being cumulative and not exclusive. By the ownership of a Lot, each Owner consents to the entry of an injunction against the Owner or the Owner's tenant to terminate and restrain any violation of this Declaration. Each Owner further agrees that the Grantor or Association, as the case may be, shall have a lien against the Lot of the Owner and the improvements thereon to secure the payment of any annual dues, special assessments or other amounts payable pursuant to this Declaration from the Owner that are not paid within the time provided by this Declaration, plus interest at the rate of twelve percent (12%) per annum, compounded annually, until such amounts together with interest are paid in full. The Grantor or the Association is authorized to record a notice of lien in the office of the County Clerk of Madison County, Idaho, which shall include a description of the Lot, the name of the Owner and the basis for the amount of the lien. A copy of the notice of lien recorded in the County Clerk's office shall be sent to the Owner by certified mail, return receipt requested. Any such lien may be foreclosed in the manner provided for foreclosure of mortgages by statutes of the State of Idaho. In addition to the principal amount of the lien plus interest, the Grantor or the Association, as the case may be, shall be entitled to the payment of all costs Incurred In the establishment or enforcement of any lien, including recording and filing costs, and attorneys fees and expenses. SECTION NINE General Provisions 9.1. Duration and Renewal. This Declaration runs with the land and shall be binding upon any and all Owners, and any and all Persons claiming under them, for a period often (10) years after the Effective Date, after which time, this Declaration shall automatically renew and be extended for successive periods often J10) years each, until and unless an instrument signed by a Three -Fourths Majority Consent has been recorded that agrees not to renew this Declaration. Documentation/Development/Rexburg West, LLC/CCRS 03-01.2019 page 7 of 9 page!421800 9.2. Amendments. This Declaration may be amended, in whole or in part, only by a Three Fourths Majority Consent. 9.3. Severability. Invalidation of anyone or more of the terms or provisions of this Declaration shall not affect any of the other terms or provisions of this Declaration, all of which shall remain in full force and effect. 9.4. Notice. Any notice required hereunder shall be deemed effective when personally delivered or when mailed by means of the United States Postal Service to the Owner of public record at the time of such mailing to such Owner's address as it appears on the Madison County, Idaho Tax Records. 9.5. Conflicts Between Declaration and Ordinances. If any conflict exists between any provision of this Declaration and any provision of any applicable Ordinance, each Owner shall comply with that provision that is the most restrictive. 9.6. No Waiver. Failure to enforce any term or provision of this Declaration, regardless of the reason, frequency or length of time, shall not constitute a waiver of the same or any other term or provision of this Declaration, all of which shall be fully enforceable at any and all times. 9.7. Acceptance of Covenants. Each Person who is an Owner on the Effective Date or thereafter becomes an Owner shall be bound by and subject to all of the terms and provisions of this Declaration, and each such Person, either through his execution of this Declaration or purchase of a Lot after the Effective Date, expressly accepts and consents to the operation and enforcement of all of the provisions of this Declaration. Documentation/Development/Rexburg West, LLC/CORS 03-01-2019 page 8 of 9 pager421800 IN WITNESS WHEREOF, Declarants have executed this Declaration effective the Effective Date. REXBURG WEST, L&anager ByitchelC.Neib STATE OF IDAHO :ss County of Madison On this ISF day of in the year 2019, before me, a Notary Public, personally appeared Mitchel C. Neibaur, known or identified to me to be the manager of Rexburg West, LLC that executed this Instrument on behalf of Rexburg West, LLC. Residing in St. Anthony,{@ Comm sson Fxpires 11-30-2023 Documentation/Development/Rexburg West, LLC/CCRS 03-01.2019 1 Not ubliC for I ALISON BANTA Residing at: Noloqpublic 51nie of Idoh My Commission E o Commission #21444 page 9 of 9 pages421800 EXHIBIT "A" 415924 Situated in the State of Idaho, County of Madison, being part of Section 24, Township 6 North, Range 39 East of the Boise Meridian, being more particularly described as follows: Commencing at a brass cap found marking the Southwest corner of said Section 24; Thence North 00°20'09' West, a distance of 66.00 feet to a point; Thence North 89149'25" East, a distance of 65.00 feet to the point of beginning; Thence North 00°20'09" West, a distance of 209.00 feet to a point; Thence North 8914925" East, a distance of 192.50 feet to a point; Thence South 00°20'09" East, a distance of 209.00 feet to a point; Thence South 89°49'25" West, a distance of 192.50 feet to the point of beginning. Subject to existing county road right of way and easements of record. 421800 EXHIBIT "A" - i SITUATED IN THE STATE OF IDAHO, COUNTY OF MADISON, BEING PART OF SECTION 24, TOWNSHIP 6 NORTH, RANGE 39 EAST, OF B.M., BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT A BRASS CAP FOUND MARKING THE SOUTHWEST CORNER OF SAID SECTION 24; THENCE NORTH 00020'09" WEST, A DISTANCE OF 66.00 FEET TO A POINT; THENCE NORTH 89049'25" EAST, A DISTANCE OF 257.50 FEET TO THE POINT OF BEGINNING; THENCE NORTH 00020'09" WEST, A DISTANCE OF 209.00 FEET TO A POINT; THENCE NORTH 89049'25" EAST, A DISTANCE OF 174.00 FEET TO A POINT; THENCE SOUTH 00020'09" EAST, A DISTANCE OF 209.00 FEET TO A POINT; THENCE SOUTH 89°49'25" WEST, A DISTANCE OF 174.00 FEET TO THE POINT OF BEGINNING. SUBJECT TO EASEMENTS AND RIGHTS-OF-WAY OF RECORD. Documents/Development/12%W"[ Development, LLC/R.E. Saleal Dr. Matthew Molvin Ori6eUJ Legal Dwcriptim 421800