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HomeMy WebLinkAboutCOVENANTS - 04-00065 - 355 W 2nd S - Woodshed Subdivision - Final PlatWHEN RECORDED RETURN TO: Billy G. DuPree; Jr. P.O. Box 723 Rexburg, Idaho 33440 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS ITUJ WOODSHED SUBDIVISION THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR WOODSHED SUBDIVISION (this "Declaration") is made by the Declarants effective as of the Effective Date. i SECTION ONE Purpose and Applicable Real Property This Declaration is made for the purpose of enhancing and protecting the value, attractiveness, and desirability of the Lots and Common Areas constituting the Subdivision, requiring the care, maintenance and repair of Lots and Buildings thereon, and providing for the care, maintenance and repair of Common Areas 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 hi addition to the other terms defined elsewhere in this Declaration, the following terms shall have the following meanings: 2.1. "Association" shall mean the unincorporated nonprofit association created and governed by this Declaration or an association incorporated by the Members as a non-profit corporation as provided in Section Six of this Declaration. 2.2. "Buildings" means the buildings constructed on Lots 1, 2, 3, 4 and 5 in the Subdivision. Any one (1) of such Buildings is referred to herein as a `Building." The Buildings contain apartments that may be used solely for residential dwellings. 2.3. "Common Areas" means all propertywithin the Subdivision, except Lots 1, 2, 3, 4 and 5. Common Areas include the Sidewalks, Parking Lots, Utilities, Sprinkler System, Easements and Open Space. Ownership of a Lot includes the respective undivided interest in the Common Areas, which shall be conveyed with each Lot. The Owners have the following undivided interests in common in the Common Areas: Lot Interest 21.8890% 22.8842% 22.8842% 22.8842% 9.4584% 2.4. "Declarants" means all the Owners of Lots in the Subdivision on the Effective Date, which Owners all have executed this Declaration. 2.5. "Easements" means all utility easements, sidewalks, rights-of-way and other easements running on, under, above or across the Common Areas, to which the Subdivision is subject. 2.6. "Effective Date" shall mean the date this Declaration is recorded in the office of the County Recorder of Madison County, Idaho. 2.7. "Lots" means Lots 1, 2, 3, 4 and 5 in the Subdivision. Any one (1) of such Lots is referred to herein as a "Lot." 2.8. "Manager" means one of the Members elected each year by vote or written consent of the Members to manage the Association or a professional manager hired by the Association to manage the Association. 2.9. "Member" means a member of the Association (whether unincorporated or incorporated). Only Owners may be Members. All Owners become and are required to remain Members by the ownership or purchase of one or more Lots. 2.10. "Open Space" means all open space within the Common Areas and includes all lawn, trees, shrubs, flowers and other plants and includes all open space within the Common Areas that pursuant to easement or written agreement benefits property contiguous to the Subdivision. 2.11. "Ordinances" means all governmental zoning, building, use, parking and other ordinances applicable to the Subdivision, any Lot, any Building, any apartment within a Building, or the Common Areas. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS - Page 2 y .. :.. r. :.11 if . r ... rl:: r .. an.: r ✓ �l :fn. nr. v .rr., ...::.... ..r:...v. I rr r. .... .rv. 1 .. .. r. :. ie.....r ... ... n ...ui... 2.12. "Owner" means an owner of a Lot or interest therein. 2.13. "Parking Lots" means all parking lots within the Common Areas. The numbered parking spaces in the Parking Lots are identified on the attached Exhibit A. 2.14. "Person" means an individual, sole proprietorship, corporation, limited liability company, partnership or any other legal entity. 2.15. "Required Majority Vote" means the affirmative vote of, or written consent executed by, Owners or Members, as the case maybe, holding at least four (4) votes, which is equivalent to eighty percent (80%) of the total number of votes held by all Owners or all Members, as the case may be. 2.16. "Restricted Parking Spaces" means parking spaces in the Parking Lots assigned to a particular Lot. Only the Owners or tenants of such Lot or their guests or invitees may use Restricted Parking Spaces. Restricted Parking Spaces are assigned to the Lots as follows: Lot Spaces 1 1-12 2 13-15,24-28 3 16-20,29-31 4 21, 22, 32 - 37 5 38-41 2.17, "Shared Parking Spaces" means all parking spaces in Parking Lots that are not Restricted Parking Spaces. Shared Parking Spaces may be used by tenants of any of the Lots and their guests and invitees. 2.18. "Sidewalks" means all sidewalks within the Common Areas. 2.19. "Sharing Percentage" means a Member's sharing percentage in the certain assessments, costs and expenses of the Association and is equal to the Member's undivided interest in common in the Common Areas. For example, if a Member owned Lots 4 and 5, that Member's Sharing Percentage would be 32.2346% (22.8842% + 9.4584% = 32.3426%). All the Nicn*er's Members' Sharing Percentages in certain assessments, costs and expenses of the Association are collectively referred to as the "Sharing Percentages." 2.20. "Sprinkler System" means the sprinkler system within the Subdivision used to water the Open Space. DECLARATION OF COVENANTS, . CONDITIONS AND RESTRICTIONS - Page 3 2.21. "Subdivision" means the Woodshed Subdivision, apart of Lot 2, Block 6, South End Addition, City of Rexburg, Madison County, Idaho, recorded on 2004 as Instrument No. in the Official Records of Madison County, Idaho. 2.22. "Utilities" means water, sewer, power, gas, telephone, television and/or cable lines and related improvements installed or constructed on, under, above or across the Common Areas. SECTION THREE Use Restrictions 3.1. Permitted Uses. Buildings on the Lots contain apartments that may be used only for residential dwellings. The Common Areas shall be maintained and used for the use and enjoyment of the Owners and their tenants. 3.2. Parking. Parking shall be used and maintained to 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. No parking shall be permitted on any rights-of-way or streets within the Subdivision at any time or for any purpose. Tenants of a particular Lot and their guests and invitees may only use the Restricted Parking Spaces assigned to their Lot or Shared Parking Spaces. It shall be the responsibility of each Owner to insure that the Owner's tenants and their guests and invitees limit their use of parking spaces as provided herein. 3.3. Signs. Except for existing signs that identify a Building or its apartments, no signs shall be constructed or permitted in the Subdivision, except as approved by Required Majority Vote and then only in compliance with all applicable Ordinances at all times. No billboard shall be permitted in the Subdivision. 3.4. Nuisances. No noxious or offensive activity shall be carried on upon any Lot, in any Building or within the Common Areas nor shall anything be done therein or thereon that may be 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 bam, shall be placed or used at any time temporarily or permanently within the Subdivision. 3.6. No Sheds or Other Outbuildings. No sheds or other outbuildings of any type or structure may be constructed or installed in the Subdivision, unless approved by Required Majority Vote. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS - Page 4 3.7. Storage Prohibitions. No boats, trailers, cMpers, mobile homes ormotorhomes shall be stored within the Subdivision. 3.89. Garbage and Waste Material. Neither the Common Areas nor any Lot or Building shall be used or maintained as a dumping ground for rubbish, trash, garbage or other waste. All waste will be kept in sanitary containers which shall be used and maintained in compliance with the requirements and applicable Ordinances of 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 within the Subdivision. 3.98. Open Space. The Open Space shall be mowed regularly, kept free of weeds and other unsightly vegetation or materials, and maintained in a clean and sightly manner. 3.109. Snow Removal. Snow shall be removed regularly so as to keep Sidewalks and Parking Lots reasonably free of snow. 3.11. Maintenance Building. Unless decided otherwise by Required Majority Vote, the Association shall contract with third -party providers to care for and maintain the Common Areas, including without limitation lawn mowing and snow removal. If the Association decides to perform such care and maintenance itself, the Association shall construct a maintenance building within the Open Space of adequate size for equipment, materials and supplies reasonably needed for the care and maintenance of the Common Areas to be performed by the Association. 3.119. Compliance With Ordinances and Environmental Laws. In all cases, ultimate responsibility to complywith all statutes, Ordinances, rules and regulations of federal, state and local governments, including those relating to hazardous waste, rests with the Association with respect to Common Areas and with each Owner with respect to each Lot and the Building thereon owned by the Owner. The Owner of each Lot shall defend, indemnify and hold harmless the Declarants, the Association, the other Owners, and each of them (including allreasonable attorney fees and expenses incurred) in the event of the Owner's, or the Owner's contractor's or tenant's, failure to comply with such laws. SECTION FOUR Common Areas The respective undivided interests established for the Common Areas set forth above and to be conveyed with the respective Lots can not be changed, and Owners and their successors, heirs, assigns, and grantees, covenant and agree that the undivided interests in the Common Areas and the fee titles to the respective Lots conveyed shall not be separated or separately conveyed. Each such undivided interest shall be deemed to be conveyed or encumbered with its respective Lot, even though the description in the instrument of conveyance or encumbrance may refer only to the fee title to the Lot. Owners, and their successors, heirs, and assigns, by this Declaration, and all future DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS - Page 5 Owners of Lots, by their acceptance of their deeds, agree that the Common Areas shall remain undivided; no Owner shall bring any action for partition, it being agreed that this restriction is necessary to preserve the rights of the Owners in the operation and management of the Association and Common Areas for the benefit of their respective Lots. SECTION FIVE Association By this Declaration, Declarants form an unincorporated non-profit association named "Woodshed Subdivision Association" for the purpose of caring for and maintaining the Common Areas. The Association shall have all powers as provided by law to perform the duties and enforce the covenants and restrictions set forth in this Declaration. The Association shall not engage in politics or pursue any political purpose. The Members of the Association shall meet periodically as determined by them or otherwise upon the request of Members holding at least two (2) votes. Unless otherwise approved byRequired Majority Vote, meetings ofthe Association shall be held in Madison County, Idaho at the place, date and time specified by notice from the Association to the Members. A Member shall have one (1) vote for each Lot owned by the Member. If more than one (1) Person owns a Lot, all the Persons having an ownership interest in the Lot shall be Members, but they collectively shall have only one (1) vote to be shared among them in proportion to their ownership interest in the Lot. . The vote of Members representing a majority of the voting rights shall decide any question of business brought before a meeting, unless the question is one upon which this Declaration requires a greater vote, in which case such express provision shall govern and control the decision of such question. All votes maybe cast either in person or by proxy. All proxies shall be in writing and shall be delivered to the Manager at least five (5) days prior to the scheduled meeting. Any Member may at any time waive any notice required to be given under this Declaration, or by statute or otherwise. The presence of a Member in person at any meeting of the Association shall be deemed a waiver. Any decision that may be made by the Members at a meeting of the Association may be decided by the Members in writing executed by Members holding a minimum ofthe Required Majority Vote. TheMembersshall elect annually a Member to serve as Manager of the Association or, in the alternative, upon Required Majority Vote, Members may elect to engage a professional management entity pursuant to written agreement to perform the administrative duties of the Association. In such case, the term Manager as used in this Declaration shall refer to such professional management entity. Unless otherwise specified by the Members or by written agreement, a Manager's term shall run from January I` to December 3l". The same Person maybe the Manager for successive terms. The Association shall keep and maintain books and accounts under the direction of the Manager in accordance with reasonable accounting procedures conducted by similar entities. The Association's books and accounts shall be open to review, inspection and copying by Members upon request during normal business hours. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS - Page 6 SECTION SIX Incorporated Association The Owners by Required Majority Vote may elect to form an Idaho nonprofit corporation to be named "Association of Owners in Woodshed Subdivision, Inc." or such other name as the Members shall determine ("Incorporated Association"), pursuant to Articles of Incorporation and with bylaws having such terns and provisions as the Owners shall determine, but consistent with the terms and provisions of this Declaration. Each then Owner shall thereupon automatically become a Member of the Association and, if requested by 6rantar the Association, 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 Incorporated 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 care, maintenance, repair and replacement of Sidewalks, Parking Lots, rights-of-way, Open Space 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 Incorporated Association shall be consistent with the voting rights ofMembers of the unincorporated Association as provided in this Declaration. Amendments to the Articles of Incorporation or bylaws, once implemented by Owners, shall require a Required Majority Vote. Upon the formation of the Incorporated Association, all rights and duties of the unincorporated Association under this Declaration shall become the rights and dues of the Incorporated Association. SECTION SEVEN Covenant to Pay Dues and Special Assessments 7.1. Monthly Dues. The Members shall pay minimum dues of $30.00 per Lot for a total of $150.00 per month, payable on the 1"day of each month. Such funds shall be maintained in a bank account in the Association's name. Only Persons authorized by Required Majority Vote shall have authority to write checks or drafts on, or otherwise transact business with respect to, such bank account. Such funds shall be devoted to payment for snow removal from Parking Lots, Sidewalks and rights-of-way; maintenance, repair and replacement of Parking Lots, Sidewalks and rights-of- way; maintenance, repair and replacement of Utilities (not utilities within each Lot), and care, maintenance, replacement and repair of Open Areas and /or related facilities (including without limitation payment for water, electric power, insurance and taxes) in or for the Subdivision; and administration, accounting and legal expenses, including without limitation attorney fees and expenses incurred by the Association to enforce any ofthe terms or provisions of this Declaration (collectively, "Association Costs and Expenses"). ' On or before the 1 st day ofApril of each year, the Manager shall provide to each Owner a report showing dues collected and the use of the funds during the twelve- month period ending December 31 st of the prior calendar year. Upon Required Majority Vote, the Association may increase the minimum monthly dues; provided, however, that the Members shall pay DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS - Page 7 the portion of the total minimum monthly dues in excess of $150.00 in proportion to their Sharing Percentages. 7.2. Special Assessments. lfmonthly dues are insufficient to pay for Association Costs and Expenses, upon Required Majority Vote the Association shall have the right to assess the Members a sum (to be paid by the Members in proportion to their Sharing Percentages) determined by such vote for use strictly for such purposes. 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 to the Owners pursuant to paragraph 7.1 of this Declaration. SECTION EIGHT Owners' Duties and Voting Each Owner, at the Owner's expense, shall keep the Owner's Lot, Building and other improvements thereon, in good order, condition and repair and in a clean, sightly and sanitary condition. Each Owner shall repair all damage to Owner's Lot, Building and other improvements thereon with a quality and kind equal to the original work. Each Lot is subject to a separate assessment and taxation by each taxing authority. Any taxes levied against a Lot or the Building or other improvements thereon shall be paid by the Owner on or before their due dates. Any taxes levied against the Common Areas shall be paid by the Association as provided in Section Seven. Each Owner shall keep the Owner's Lot, Building and other improvements thereon fully insured at all times by a recognized and substantial insurance company licensed in the State of Idaho for the full replacement value for all risks insurable in the Rexburg, Idaho area. Any damage or destruction to the Lot, the Building or other improvements thereon shall be promptly restored by the Owner to its original design and dimension to conform to the Building and related improvements theretofore existing or as otherwise approved by affirmative vote or written consent of Owners holding at least the Required Majority Vote. With respect to any matter for which a vote or 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. If more than one (1) Person owns a Lot, they shall have one (1) vote to be shared among them in proportion to their ownership interest in the Lot. SECTION NINE Enforcement This Declaration maybe enforced by 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 Association sending a notice of violation to the defaulting or breaching Owner, the defaulting or breaching Owner shall pay to the Association all attorney fees and costs incurred by it, with or without suit, 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 paidwithin ten (10) days after demand by the Association shall be immediately due DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS - Page 8 :..,.,.,, ., ,...__ , and payable and shall thereafter bear interest at the rate of twelve percent (12%) per annum until paid in full. SECTION TEN Remedies The 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 or an interest therein, 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 Association shall have a lien against the Lot of the Owner and the improvements thereon to secure the payment of any monthly dues, special assessments or other amounts payable pursuant to this Declaration from the Owner, as a Member of the Association or otherwise, 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 Association is authorized to record a notice of lien in the office of the County Clerk ofMadison 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 at the rate of twelve percent (12%) per annum, the Association shall be entitled to the payment of all costs incurred in the establishment or enforcement of any lien, including recording and filing costs, and attorney's fees and expenses. If any Member shall default for a period of one (1) month in the payment of any monthly dues or special assessments, the Association may at its option, and for so long as such default shall continue, demand and receive from any tenant occupying any apartment in the Building on the Owner's Lot, any portion of the rent due or becoming due, and to the extent such rent is paid to the Association, such tenant shall be discharged of habilityto the Member, this Declaration constituting an assignment ofrents for any and all such purposes. SECTION ELEVEN General Provisions 11.1. Duration and Renewal. This Declaration nuns with the land and shall be binding upon any and all Owners, and any and all Persons claiming under them, for a period of ten (10) years after the Effective Date, after which time, this Declaration shall automatically renew and be extended for successive periods of ten (10) years each, until and unless an instrument approved by Required Majority Vote has been signed by Owners of at least four (4) of the Lots and recorded that agrees not to renew this Declaration. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS - Page 9 r r 1 ...... A _.+ r ..u... r / 1 F. .. ...V • Y ..r.A'ni 1 r ..�Ir .. :n .... .a .... .. 11.1 A., :.., .r 11.2. Amendments. This Declaration may be amended, in whole or in part, only by a Required Majority Vote and an instrument signed by Owners of at least four (4) Lots; provided, however, that no amendment may change the financial obligations of any Member under Section Seven of this Declaration unless it is signed by all the Members. 11.3. Severability. Invalidation of any one or more of the terms or provisions of this Declaration shall not affect anyotherterms orprovisions of this Declaration, all ofwhich shall remain in full force and effect. 11.4. 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 last known address of the Member or Owner in the records of the Association. A Member may change the Member's address for purpose of notice by written notice to the Association. If the Association does not have an address for an Owner, notice may be sent by the Association or any other Owner 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. Such Owner's address as so determined shall also constitute the address for notice to the Owner as a Member of the Association. 11.5. Conflicts Between Declaration and Ordinances. If any conflict exists between any provision of this Declaration and any provision of any applicable Ordinance, each Owner and the Association shall comply with that provision that is the most restrictive. 11.6. 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. 11.7. Acceptance of Covenants. Each Person who is an Owner on the Effective Date or thereafter becomes an Owner shall be a Member of the Association and bound by and subject to all ofthe terms and provisions ofthis Declaration, and each such Person, either through execution ofthis 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. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS - Page 10 IN WITNESS WHEREOF, Declarants have executed this Declaration effective as of the Effective Date. WOODSHED PROPERTIES LLC By Mark R. Andrews, Manager Keven Snell, Manager STATE OF IDAHO ) :ss County of ) Mark R. Andrews Kelli Andrews On this _ day of January, in the year 2003, before me, a Notary Public in and for said State, personally appeared Mark R. Andrews, known or identified to me (or proved to me on the oath of ), to be the Manager of the limited liability company that executed this instrument or the personwho executed this instrument onbehalfofsaid limited liability company, and acknowledged to me that such limited liability company executed the same. Notary Public for Idaho Residing at: My Commission Expires: DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS - Page 11 STATE OF IDAHO :ss County of On this day of January, in the year 2003, before me, a Notary Public in and for said State, personally appeared Keven Snell, known or identified to me (or proved to me on the oath of ), to be the Manager of the limited liability company that executed this instrument or thepersonwho executed this instrument onbehalfofsaid limited liability company, and acknowledged to me that such limited liability company executed the same. STATE OF IDAHO :ss County of Notary Public for Idaho Residing at: My Commission Expires: On this day of January, in the year 2004, before me, a Notary Public in and for said State, personally appeared Mark R. Andrews and Kelli Andrews, husband and wife, known or identified to me (or proved to me on the oath of ), to be the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same. Notary Public for Idaho Residing at: My Commission Expires: DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS - Page 12 ,,,.,:- ,:.. „ w,. . ... 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