HomeMy WebLinkAboutCOVENANTS - 21-00177 - Teton River Flats - 280 Lorene St - PUD Plat
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When Recorded, Mail to:
Parsons Behle and Latimer
c/o Jon A. Stenquist
350 Memorial Drive, Ste. 300
Idaho Falls, Idaho 83402
DECLARATION OF
COVENANTS, CONDITIONS, AND RESTRICTIONS
FOR
TETON RIVER FLATS CONDOMINIUMS
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DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
FOR
TETON RIVER FLATS CONDOMINIUMS
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
TETON RIVER FLATS CONDOMINIUMS (this “Declaration”) is made and executed this ____
day of ________________, 2021, by Leatham Development LLC, a Idaho limited liability
company (hereinafter referred to as the “Declarant”). As of the date of the execution of this
Declaration, Declarant is the sole owner of all of the Land described in Exhibit “A” attached hereto,
and Declarant is the sole owner of all of the Units within the Project described in this Declaration.
Consequently, Declarant has full right, title and authority to execute, acknowledge and record in
the Office of the Recorder of Madison County, Idaho this Declaration of Covenants, Conditions
and Restrictions for Teton River Flats Condominiums.
RECITALS:
A. This Declaration affects that certain real property located in Madison County, Idaho
described with particularity in Exhibit “A” attached hereto and incorporated herein by this
reference (hereinafter referred to as the “Land”). Declarant desires to develop the Project, in
phases, for residential uses.
B. Declarant is the owner of the Land.
C. Daseclarant has constructed, is in the process of constructing or will construct upon
the Land a residential unit development, which shall include certain Units, Common Areas, and
other improvements.
D. Declarant intends to sell to various purchasers the fee title to the Individual Units
contained in the Land, and a corresponding membership interest in the Teton River Flats
Condominiums Owners Association, Inc., an Idaho nonprofit corporation (which shall own the
Common Areas), subject to the Plat, and the covenants, conditions and restrictions set forth herein.
E. As part of the various phases of development of the Property, Declarant desires, by
recording in the Office of the Recorder of Madison County, Idaho this Declaration and the Plat, to
submit the Land and all Improvements now or hereafter construct thereon to the terms, covenants
and conditions of this Declaration, and the Project is to be known as Teton River Flats
Condominiums (the “Project”).
NOW, THEREFORE, for the reasons recited above and subject to the covenants,
conditions and restrictions set forth below, Declarant hereby makes the following Declaration:
ARTICLE 1
DEFINITIONS
When used in this Declaration (including in that portion hereof entitled “Recitals”), each
of the following terms shall have the meaning indicated.
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1.1 Additional Charges shall mean and refer cumulatively to all collection and
administrative costs, including but not limited to attorney’s fees, late charges, service fees, filing
and recordation fees, accruing interest, fines, and expenditures actually incurred or assessed by
the Association.
1.2 Area of Common Responsibility shall have the meaning set forth in Section 3.19(a).
1.3 Area of Personal Responsibility shall have the meaning set forth in Section 3.19(e).
1.4 Articles of Incorporation shall mean and refer to the Articles of Incorporation of
Teton River Flats Condominiums Owners Association, Inc., an Idaho nonprofit corporation on
file or to be filed with the Idaho Secretary of State.
1.5 Assessments shall mean and refer to (collectively) the Common Areas
Assessments, the Individual Assessments, the Special Assessments, and the Specific Assessments
that may be assessed by the Board and payable by an Owner of a Unit pursuant to the terms of
this Declaration.
1.6 Association shall mean and refer to the association of owners of Units consisting
of the Teton River Flats Condominiums, known as Teton River Flats Condominiums Owners
Association, Inc., an Idaho nonprofit corporation.
1.7 Board or Board of Directors shall mean the board of directors of the Association
who have been duly appointed or elected to perform their duties, as provided in accordance with
the provisions of the Idaho Condominimum Property Act and the Idaho Nonprofit Corporation
Act.
1.8 Budget shall have the meaning set forth in Section 3.20.
1.9 Building shall mean and refer to any of the structures constructed in the Project.
1.10 Business and/or Trade shall be construed to have their ordinary, generally accepted
meanings, and shall include, without limitation, any occupation, work, or activity undertaken on
an ongoing basis which involves the provision of goods or services to persons other than the
provider’s family and for which the provider receives a fee, compensation, or other form of
consideration, regardless of whether such activity is engaged in full or part-time; such activity is
intended to or does generate a profit; or a license is required therefor.
1.11 Bylaws shall mean and refer to the Bylaws of the Association attached to this
Declaration as Exhibit “B.”
1.12 Capital Improvement shall mean and refer to all nonrecurring expenses (as opposed
to day-to-day expenses) to repair, maintain or replace significant fixed assets in the Project
intended to restore, enhance, improve or ameliorate the utility, value or beauty of the Common
Areas.
1.13 City shall mean the City of Rexburg, a Idaho municipal corporation.
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1.14 Class B Control Period shall mean and refer to the period of time during which the
Class B Member is entitled to appoint all or a majority of the members of the Board of Directors.
1.15 Common Areas shall mean and refer to all real property in the Project in which the
Association owns an interest for the common use and benefit of its Members, their successors,
assigns, tenants, families, guests and invitees, including, but not limited to, the following items:
(a) The real property and interests in real property subjected to the terms of this
Declaration, including the entirety of the Land and all Improvements constructed thereon,
except for and specifically excluding therefrom the individual Units or Units;
(b) All Common Areas designated as such on the Plat;
(c) All utility installations and all equipment connected with or in any way
related to the furnishing of utilities to the Project and intended for the common use of all
Owners, including without limitation utility services such as telephone, electricity, natural
gas, water and sewer;
(d) The Project’s outdoor grounds, detention basins, landscaping, street
lighting, perimeter and preservation fences, sidewalks, trails, walking paths, parking spaces
and private streets and alleys;
(e) All portions of the Project not specifically included within the individual
Units; and
(f) All other parts of the Project normally in common use or necessary or
convenient to the use, existence, maintenance, safety, operation or management of the
Property owned by the Association for the common benefit of its Members.
1.16 Common Areas Assessment shall have the meaning set forth in Section 3.20.
1.17 Common Areas Expense shall have the meaning set forth in Section 3.20.
1.18 Community shall mean and refer to the Project.
1.19 Community Standards shall mean and refer to the standard of conduct,
maintenance, or other activity generally prevailing in the Community as determined by the Board
of Directors from time to time.
1.20 Condominium Association shall mean Teton River Flats Condominiums Owners
Association, Inc., a Idaho nonprofit corporation.
1.21 Condominium Project shall mean the residential condominium project created
pursuant to the Plat that is located upon certain real property located in Madison County, Idaho.
1.22 Condominium Units shall mean the residential condominium units within the
Condominium Project created pursuant to the Plat.
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1.23 Declaration shall mean and refer to this Declaration of Covenants, Conditions and
Restrictions for Teton River Flats Condominiums.
1.24 Declarant shall mean and refer to Leatham Development LLC, a Idaho limited
liability company, its successors and assigns.
1.25 Delinquent Assessments shall have the meaning set forth in Section 3.25(b).
1.26 Eligible Insurer shall mean and refer to an insurer or governmental guarantor of a
mortgage or deed of trust who has requested notice in writing of certain m atters from the
Association in accordance with this Declaration.
1.27 Eligible Mortgage shall mean and refer to a mortgagee, beneficiary under a deed of
trust, or lender who has requested notice in writing of certain matters from the Association in
accordance with this Declaration.
1.28 Eligible Votes shall mean and refer to those votes available to be cast on any issue
before the Association.
1.29 Event or Events shall have the meaning set forth in Section 3.16(b).
1.30 Family shall mean and refer to a group of natural persons residing in the same
residential structure and maintaining a common household.
1.31 Guest shall mean and refer to a temporary visitor, invitee or person whose presence
within the Project is approved by or is at the request of a particular Owner.
1.32 Improvement shall mean and refer to all physical structures and appurtenances to
the Land of every kind and type, including but not limited to all buildings, dwellings units,
fixtures, plumbing, electrical, heating, air conditioning and utility systems, roads, alleys,
walkways, parking areas, patios, fences, walls, stairs, landscaping, trees, shrubs, bushes and green
space.
1.33 Individual Assessment shall have the meaning set forth in Section 3.23.
1.34 Land shall mean and refer to all of the real property subject to this Declaration,
which is more particularly described in Exhibit “A” attached hereto and incorporated herein by
this reference.
1.35 Unit shall mean and refer to a portion of the Property, other than the Common
Areas, intended for any type of independent ownership and use as may be set out in this
Declaration and as shall be shown on the Plat or amendments thereto. Where the context indicates
or requires, the term Unit includes any dwelling unit, physical structure or improvement
constructed on the Unit.
1.36 Unit Number shall mean and refer to the number, letter or combination thereof
designating a particular Unit as identified on the Plat.
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1.37 Majority shall mean and refer to those eligible votes of Owners or other groups as
the context may indicate totaling more than fifty (50%) percent of the total eligible number.
1.38 Manager shall mean and refer to the person or entity appointed or hired by the
Board of Directors to manage and operate the Project.
1.39 Member shall mean and refer to an Owner obligated, by virtue of such Owner’s
respective ownership, to be a member in the Association.
1.40 Mortgage shall mean and refer exclusively to either a first mortgage or first deed of
trust on any Unit, but shall not mean or refer to an executory contract of sale.
1.41 Mortgagee shall mean and refer exclusively to a mortgagee under either a first
mortgage or a beneficiary under a first deed of trust on any Unit, but shall not mean or refer to a
seller under an executory contract of sale.
1.42 Notice and Hearing shall mean and refer to the procedure which gives an owner or
resident due process.
1.43 Owner shall mean and refer to the person who is the owner of record (in the
Recorder’s Office) of a fee or an undivided fee interest in a Unit, including but not limited to both
the seller and buyer under an executory sales contract. The term Owner does not mean or include
a mortgagee or a beneficiary or trustee under a deed of trust, unless and until such party has
acquired title pursuant to foreclosure or any arrangement or proceeding in lieu thereof.
1.44 Permanent Resident shall mean and refer to anyone who resides in the Project for
more than four (4) consecutive weeks or for more than eight (8) weeks in any calendar year.
1.45 Person shall mean and refer to a natural person, corporation, partnership, trust,
limited liability company, or other legal entity.
1.46 Plat shall mean and refer to the Final Plat of “TETON RIVER FLATS
CONDOMINIUMS” on file and of record in the Recorder’s Office as it may be amended from
time to time. The Plat will show the location of the Units and the Common Areas.
1.47 Project shall mean and refer to Teton River Flats Condominiums residential unit
development.
1.48 Project Documents shall mean the Plat, the Declaration, the Bylaws, the Articles of
Incorporation and any rules or regulations of the Association adopted from time to time by the
Board of Directors.
1.49 Property shall mean and refer to all of the Land and all Improvements and
appurtenances subjected to the terms of this Declaration.
1.50 Recorder’s Office shall mean the Office of the Recorder of Madison County, Idaho.
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1.51 Recreational, Oversized or Commercial Vehicle shall mean and refer to any
recreational, commercial or oversized vehicle, motor home, commercial vehicle, tractor, golf cart,
mobile home or trailer (either with or without wheels), camper, camper trailer, boat or other
watercraft, boat trailer, or any other recreational, oversized or commercial transportation vehicle,
machine, or device of any kind.
1.52 Reserve Fund shall mean the fund created or to be created by the Association
pursuant to Section 3.20(q) for the purposes provided in Section 3.20(q).
1.53 Shared Components of a Building shall mean all portions of a Building that are
shared by or are reasonably necessary for the use and enjoyment of one or more Units within a
Building including, without limitation, party walls, footings and foundations, structural
components, roofs and common sanitary sewer laterals and other shared utilities.
1.54 Special Assessment Limit shall have the meaning set forth in Section 3.21(a).
1.55 Specific Assessment shall have the meaning set forth in Section 3.22.
1.56 State shall mean the State of Idaho.
1.57 Transfer shall have the meaning set forth in Section 3.24(a).
1.58 Transferee shall have the meaning set forth in Section 3.24(a).
1.59 Transition Date shall have the meaning set forth in Section 3.16.
1.60 Unit or Units shall mean and refer to the individual single family condominium,
apartment or residential living areas constructed within the Project, referred to as a Unit.
ARTICLE 2
PROPERTY SUBJECT TO THIS DECLARATION
2.1 Declarant hereby declares that the Property is and shall be held, conveyed,
hypothecated, encumbered, leased, occupied, built upon or otherwise used, improved or
transferred in whole or in part, subject to this Declaration, as amended from time to time. This
Declaration is declared and agreed to be in furtherance of a general plan for the subdivis ion,
improvement and sale of the Property and is established for the purpose of enhancing the value,
desirability and attractiveness of the Property. This Declaration shall run with all the Property for
all purposes and shall be binding upon and inure to the benefit of Declarant, the Association, all
Owners, Members and their respective successors-in-interest. Each Owner of any Unit, by
acceptance of a deed therefor (whether or not it is or shall be so expressed on such deed) is deemed
to covenant and agree that such Owner and such Owner’s Unit shall be subject to all the terms,
covenants, conditions, restrictions and easements set forth in this Declaration. The Project is not
a cooperative.
2.2 Reservation to Declarant. There is hereby reserved unto Declarant, its employees,
agents, successors and assigns such easements and rights of ingress and egress over, across,
through and under the Property and any Improvements now or hereafter constructed thereon as
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may be reasonably necessary for Declarant, its employees, agents and successors (in a manner not
inconsistent with the provisions of this Declaration) to:
(a) engage in construction upon or to improve the Common Areas with such
structures and facilities (including but not limited to roads, utility improvements, parking
areas, sidewalks, parking area and sidewalk lighting and various landscaped areas)
designed for the use and enjoyment of all the Members as Declarant may reasonably
determine to be appropriate; and
(b) do all things reasonably necessary and proper for the construction,
completion, development and sale of the Project. If pursuant to this reservation, the
Property or any portion thereof (including any Building or any Unit or Unit) or any
improvement thereon, is traversed or partially occupied by a permanent Improvement or
utility line, a perpetual easement for such Improvement or utility line shall exist.
2.3 Subject to Taxes, Instruments of Record. The Property that is subject to this
Declaration is subject to all liens for current and future taxes, assessments and charges imposed
or levied by governmental or quasi-governmental authorities, all patent reservations and
exclusions, all instruments of records which affect the Property or any portion thereof, including
without limitation any mortgage or deed of trust, all visible easements and rights-of-way, and all
easements and rights-of-way record, including without limitation, the easements, restrictions and
rights-of-way identified on the Plat and all notes and disclosures of any nature included on the
Plat.
ARTICLE 3
COVENANTS, CONDITIONS AND RESTRICTIONS
The Project shall be subject to and governed by the following covenants, conditions, and
restrictions:
3.1 Description of Improvements. The significant Improvements in the Project include,
or shall include, one hundred (100) Units and the Common Areas as identified on the Plat,
landscaping, roadways, a common utility system, an entrance to and exit from the Project.
3.2 Description and Legal Status of the Property. The Units shall be owned by the
Owners, and the Common Areas shall be owned by the Association.
3.3 Membership in the Association. Membership in the Association is appurtenant to
the ownership of a Unit, and may not be partitioned therefrom.
3.4 Conveyancing. Any deed, lease, Mortgage, deed of trust, or other instrument
conveying or encumbering a Unit shall describe the interest or estate involved substantially as
follows: “All of UNIT No. ______ contained within Teton River Flats Condominiums, as the
same is identified on the Plat recorded in the Madison County Recorder’s Office as Instrument
No. ____________ (as said Plat may have heretofore been amended or supplemented) and in the
Declaration of Covenants, Conditions and Restrictions for Teton River Flats Condominiums,
recorded in the Madison County Recorder’s Office (as said Declaration may have heretofore been
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amended or supplemented), together with and subject to the appurtenant rights and obligations as
a Member of Teton River Flats Condominiums Owners Association, Inc.”
Regardless of whether or not the description employed in any such instrument is in the
above-specified form, all provisions of this Declaration shall be binding upon and shall inure to
the benefit of any party who acquires any interest in a Unit and shall run with the Land. Neither
the membership in the Association, nor the right of non-exclusive use of the Common Areas shall
be separated from the Unit to which it appertains; and, even though not specifically mentioned in
the instrument of transfer, such mandatory membership in the Association and such right of non-
exclusive use of the Common Areas shall automatically accompany the transfer of the Unit to
which they relate.
3.5 Ownership and Use. Each Owner shall be entitled to the exclusive ownership and
possession of such Owner’s Unit and to membership in the Association as set forth herein, subject,
however, to the following:
(a) Nature and Restrictions on Ownership and Use in General. Each Owner
shall have and enjoy the privileges of fee simple ownership of such Owner’s respective
Unit. There are no requirements concerning who may own a Unit, it being intended that
the Units may and shall be owned as any other real property by Persons. The Project is a
residential community, and as such the Units shall be used only and exclusively for
residential purposes, except as set forth below. The Common Areas shall only be used in a
manner consistent with the residential nature of the Project.
(b) Mandatory Association. Each Owner shall automatically become a
Member of the Association.
(c) Member’s Easements and Rights of Way. Every Member of the Association
shall as an Owner have the right and non-exclusive easement to use and enjoy the Common
Areas in a manner consistent with the terms of this Declaration. Such right and easement
shall be appurtenant to and shall pass with the title to every Unit, subject to the right of the
Association to dedicate or transfer all or any part of the Common Areas to any public
agency, authority or utility for the purpose of providing utilities to the Project and similar
or related purposes. During the Class B Control Period, any such dedication or transfer
shall be effective only if approved in writing by Declarant.
(d) Rules and Regulations. The Board of Directors shall have the power and
authority to adopt, amend or repeal administrative rules and regulations pertaining to the
Project from time to time, provided that the Board of Directors complies with the
requirements and limitations of Idaho law.
(e) Restrictions and Limitations of Use. The use of the Units is subject to the
following guidelines, limitations and restrictions:
(1) Parties Bound. The Project Documents shall be binding upon all
Owners and residents, their Family members, tenants, invitees, lessees and Guests.
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(2) Nuisance. It shall be the responsibility of each Owner, resident,
occupant and Guest to prevent the creation or maintenance of a nuisance in, on or
about the Project. For purposes of this section a “nuisance” includes but is not
limited to the following:
a. The development of any unclean, unhealthy, unsightly, or
unkempt condition on, in or about a Unit or in the Common Areas;
b. The storage of any item, property or thing that will cause any
Unit or the Common Areas to appear to be in an unclean or untidy condition
or that will be noxious to the senses. This shall be interpreted to include,
but not be limited to, the prevention of storage of toys, personal items, bikes
and the hanging of clothes or linens from windows, balconies or outside the
Unit;
c. The storage of trash, garbage or refuse or any substance,
thing or material upon any Unit or in the Common Areas that will emit any
foul, unpleasant or noxious odors, or that will cause any noise or other
condition that will or might disturb the peace, quiet, safety, comfort, or
serenity of the other residents at the Project;
d. The creation or maintenance of any noxious or offensive
condition or activity in or about any Unit or the Common Areas;
e. Actions or activities tending to cause embarrassment,
discomfort, annoyance, distress or a disturbance to any other residents, their
Guests or invitees, particularly if the police or sheriff must be contacted to
restore order;
f. Maintaining any plants, animals, devices, items,
instruments, equipment, machinery, fixtures, or things of any sort whose
activities or existence in any way is illegal, noxious, dangerous, unsightly,
unpleasant, or of a nature as may diminish or destroy the enjoyment of the
Community by other residents or their Guests; and
g. Excessive noise or traffic in, on or about any Unit or the
Common Areas, especially after 10:00 p.m. and before 7:00 a.m.
(3) Unsightly Work, Hobbies or Unkempt Conditions. The pursuit of
hobbies or other activities, including, but not limited to, the assembly and
disassembly of motor vehicles and other mechanical devices which might tend to
cause disorderly, unsightly, or unkempt conditions, shall not be pursued or
undertaken on any part of the Project.
(4) Removing Garbage, Dust & Debris. All rubbish, trash, refuse,
waste, dust, debris and garbage shall be regularly removed from the Unit and shall
not be allowed to accumulate in or about the Unit.
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(5) Subdivision of a Unit. No Unit shall be subdivided or partitioned.
(6) Firearms, Incendiary Devices and Graffiti. The use of firearms and
incendiary devices or the painting of graffiti, within the Project is prohibited. The
term firearms includes, but is not limited to, all guns, pistols, handguns, rifles,
automatic weapons, semi-automatic weapons, BB guns, pellet guns, sling shots,
wrist-rockets, blow-dart guns, and other firearms of all types, regardless of size.
(7) Temporary Structures. No Owner or resident shall place upon any
part of the Project any temporary structures, including but not limited to, tents,
trailers, or sheds, without the prior written consent of the Board of Directors.
Anything to the contrary notwithstanding and until the occurrence of the Events
referred to herein, the Declarant may install and use temporary structures in the
development of the Project and the marketing of the Units or Units.
(8) Trees, Shrubs, Bushes and Fences: Maintenance of Proper Sight
Distance at Intersections and Prior Written Consent Required. All property located
at or near entrances, exits, walkways, paths and street intersections or corners shall
be landscaped so as to remove any obstructions and to permit safe sight. No fence,
wall, hedge, shrub, bush, tree or monument, real or artifici al, shall be planted or
placed by any Owner or resident in, on or about the Common Areas without the
prior written consent of the Board of Directors. Approval, if any, of fencing in the
front of a Unit shall be limited to a maximum of three (3) feet in height with the
type and material to be approved by the Board of Directors. The Board of Directors
may alter or remove any objects planted or placed in violation of this subsection.
(9) Swamp Coolers or Evaporative Coolers. No Owner shall place upon
any part of the Project, Unit or Common Areas any swamp cooler or evaporative
cooler.
(10) Plants. No plants or seeds infected with noxious insects or plant
diseases shall be brought upon, grown, or maintained upon the Project.
(11) Outdoor CUnithes Washing and Drying. No exterior cUnitheslines
shall be erected or maintained, and there shall be no outside drying or laundering
of cUnithes or linens.
(12) Exterior Alteration. No Owner shall make any alterations or
modifications to the exterior of any Unit, or other building, fences, railings, or walls
situated within the Project without the prior written consent of the Board of
Directors, which consent shall be in the Board of Directors’ sole discretion.
(13) Signs. No signs shall be erected or displayed on the Common Areas,
except signs placed by authority of the Board of Directors. Notwithstanding any
provision in this Declaration to the contrary, so long as Declarant retains ownership
of any Units, Declarant may erect such signs as it reasonably determines is
necessary for the sales promotion of such Units. No signs shall erected or displayed
to be visible from the exterior from any Unit, with the limited exception that the
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Owner of a Unit may display one “For Sale” or “For Rent” sign in one window of
such Owner’s Unit, provided that the dimensions of such sign shall not exceed 18
inches by 24 inches in size.
(14) Solar Equipment. No Owner may install any solar energy device
within the Project.
(15) Energy Conservation Equipment. No solar energy device, solar
energy collector panels, other energy conservation equipment or attendant
hardware shall be constructed or installed within the Project without the prior
written consent of the Board of Directors.
(16) Business Use. No commercial Business or Trade may be conducted
on, in, or from any Unit unless: a) the existence or operation of the business activity
is not apparent or detectable by sight or sound from outside the Unit; b) the business
activity conforms to all zoning requirements for the Project; c) the business activity
does not involve door-to-door solicitation of residents of the Project; and d) the
business activity is consistent with the residential character of the Project and does
not constitute a nuisance, or a hazardous or offensive use, or threaten the security
or safety of other residents of the Project, as may be determined in the sole
discretion of the Board of Directors. Notwithstanding the above, the leasing of a
residence shall not be considered a Trade or Business within the meaning of this
sub-Section.
(17) Storage and Parking of Vehicles. The driving, parking, standing and
storing of motor vehicles in, on or about the Project shall be subject to the
following:
a. The parking rules and regulations adopted by the Board of
Directors from time to time;
b. Owners and residents shall be prohibited from parking in the
guest parking spaces in the Common Areas;
c. Except for purposes of loading or unloading passengers or
supplies (for a period of time up to twelve (12) hours), no Recreational,
Commercial or Oversize vehicle parking is allowed in the Project;
d. No parking on any private road or any public road or alleys,
except in designated parking spaces, is allowed at any time in the Project;
e. No parking within alleys, except for the sole purpose of
loading or unloading passengers or items, is allowed at any time in the
Project;
f. No motor vehicle or trailer, including but not limited to any
car, automobile, truck, van, or any other transportation vehicle or device of
any kind may be parked or stationed in such a manner so as to block access
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to any Unit, Building or parking space, or so as to create an obstacle or
potentially dangerous condition;
g. Residents may only park their motor vehicles in accordance
with the rules adopted by the Board of Directors;
h. All vehicles parked within the Project must have a current
license plate and must be drivable and in good working order, with no fluid
leaking from the vehicle.
i. No resident shall repair or restore any vehicle of any kind in,
on or about any Unit or the Common Areas, except for emergency repairs,
and then only to the extent necessary to enable movement thereof to a proper
repair facility;
j. All Guest parking areas shall be used solely for Guest
parking. No vehicle may be parked in Guest parking areas for a period of
time exceeding 48 consecutive hours;
k. The Board of Directors shall have the right to designate
certain areas within the Project that are to be reserved for snow storage
during the period of time beginning on November 1 and continuing through
the subsequent March 30. During such period of time, there shall be no
overnight parking within such designated snow storage areas;
l. Vehicles parked in violation of this Declaration may be
impounded or towed without further notice, and at the vehicle owner’s sole
expense.
(18) Antennas. One (1) small and inconspicuous satellite dish antenna
having a diameter of 30” or less, which is installed adjacent to any Unit and is
integrated with the Unit structure and surrounding landscape shall be permitted
upon a Unit. A satellite dish larger than 30” in diameter, or any dish which is not
installed adjacent to a Unit and/or integrated with the surrounding landscaping shall
be reviewed by the Board of Directors on a case-by-case basis. The location and
screening of the satellite dish shall be specified by the Board of Directors to ensure
that the satellite dish is not visible from the street. Notwithstanding anything to the
contrary, any satellite dish antenna having a diameter of more than 30”, and all
other microwave dish antenna, satellite dish antennae, exterior radio antenna,
exterior television antenna, or other exterior electronic signal receiving or
transmitting equipment are prohibited within the Project.
(19) Windows and Window Coverings. No aluminum foil, newspapers,
reflective film coatings, or any other similar materials may be used to cover the
exterior windows of any Unit. Sun shades and tinted windows are allowed. All
windows and window panes in the Project shall be harmonious, and comparable in
size, design and quality, so as not to detract from uniformity in appearance and
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construction. Window coverings shall be installed within thirty (30) days of
occupancy.
(20) Pets. No animals, livestock, or poultry of any kind shall be raised,
bred, or kept at the Project, except that no more than 2 dogs, and/or no more than 2
cats may be kept in or on a Unit, subject to any additional rules and regulations
adopted by the Association through its Board of Directors. The Board of Directors
may adopt rules to restrict any breed that is commonly known as an aggressive
breed. Under no circumstances shall any pets be kept, bred, or maintained for any
commercial purpose. Furthermore, any pet kept outside must be on a leash at all
times, and no pets may be kept outside overnight.
Notwithstanding this provision, no pet enclosures shall be erected, placed
or permitted to remain on any portion of the Common Areas, nor shall pets be kept
tied to any structure outside the Unit. The keeping of pets and their ingress and
egress to the Common Areas shall be subject to such rules and regulations as m ay
be issued by the Board of Directors. Pets must be on a leash at all times when
outside a Unit.
If a pet defecates on any portion of the Common Areas, the Owner of such
pet shall immediately remove all feces left upon the Common Areas by such
Owner’s pet. If the Owner or resident of the Project fails to abide by the rules and
regulations and/or covenants applicable to pets, the Board of Directors may bar
such pet from use of or travel upon the Common Areas. The Board of Directors
may subject ingress, egress, use or travel by a pet upon the Common Areas to a user
and maintenance fee, which may be a general fee for all similarly situated persons
or a specific fee imposed for failure of an Owner, or resident of the Project to abide
by the rules, regulations, and/or covenants applicable to pets. In addition, any pet
which endangers the health or welfare of any Owner, resident, invitee or Guest of
the Project or which creates a nuisance (e.g., unreasonable barking, howling,
whining or scratching) or an unreasonable disturbance or is not a common
household pet, as may be determined in the sole discretion of the Board of
Directors, must be permanently removed from the Project upon seven (7) days
written notice by the Board of Directors.
(21) Insurance. Nothing shall be done or kept in, on or about any Unit,
the Common Areas, which may result in the cancellation of the insurance on the
Project or an increase in the rate of the insurance on the Project over what the Board
of Directors, but for such activity, would pay.
(22) Laws. Nothing shall be done or kept in, on or about any Unit or
Common Areas, or any part thereof, which would be a violation of any statute, rule,
ordinance, regulation, permit or other validly imposed requirement of any
governmental body.
(23) Damage or Waste. No damage to, or waste of, the Common Areas
shall be committed by any Owner or resident of the Project or any Guest of any
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Owner or resident of the Project, and each Owner shall indemnify, defend and hold
harmless the Board of Directors and the other Owners from and against all loss
resulting from any such damage or waste caused by that Owner or resident of the
Project, or an invitee.
(24) Structural Alterations. No structural alterations to the Common
Areas or Buildings is allowed without the prior written consent of the Board of
Directors.
(25) Mailboxes. The initial mailbox must be the one approved and
provided by the Declarant at the mail station as designated by the Board of
Directors.
(26) Shared Components of a Building. Owners of Units in the same
Building shall each have the right to the use and enjoyment of the Shared
Components of a Building, provided that such use does not interfere with the use
and enjoyment thereof by any other Owner. In the event that any portion of the
Shared Components of a Building are damaged or destroyed through the act of an
Owner, his agents, Guests or family members, it shall be the obligation of such
Owner to rebuild and repair the Shared Components of a Building without cost to
the Association or the adjoining Owner or Owners.
3.6 Leases. Any agreement for the leasing, rental, or occupancy of a Unit for over 30
days (hereinafter in this Section referred to as a “lease”) shall be in writing and a copy thereof
shall be delivered to the Association at least ten (10) days before the term of the lease commences.
Furthermore, the Owner of a Unit that executes a lease shall, within ten (10) days after the
commencement of the term of the lease, provide to the Association the vehicle license number of
any vehicle used by Persons who have executed such a lease. Every lease shall provide that the
terms of such lease shall be subject in all respects to the provisions of the Project Documents.
Said lease shall further provide that any failure by the resident thereunder to comply with the
terms of the foregoing documents shall be a default under the lease. If any lease does not contain
the foregoing provisions, such provision shall nevertheless be deemed to be a part of the lease and
shall be binding on the Owner and resident by virtue of the inclusion of such provisions in this
Declaration. Failure by an Owner to take legal action, including the institution of a forcible entry
and unlawful detainer proceeding against such Owner’s resident who is in violation of the Project
Documents within ten (10) days after receipt of written demand to do so from the Board of
Directors, shall entitle the Association to take any and all such action including the institution of
proceedings in forcible entry and unlawful detainer on behalf of such Owner against such Owner’s
resident. Neither the Association nor any agent retained by the Association to manage the Project
shall be liable to the Owner or resident for any eviction under this section that is made in good
faith. Any expenses incurred by the Association, including attorneys’ fees and costs of suit, shall
be repaid to it by such Owner. Failure by such Owner to make such repayment within ten (10)
days after receipt of a written demand therefor shall entitle the Board to levy an Individual
Assessment against such Owner and such Owner’s Unit for all such expenses incurred by the
Association. In the event such Assessment is not paid within thirty (30) days of its due date, the
Board of Directors may resort to all remedies of the Association for the collection thereof. Other
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than as specified in this section, there is no restriction on the right of any owner to lease or
otherwise grant occupancy rights to a Unit.
3.7 Short Term Rentals. Any lease less than 31 consecutive days shall be considered a
“short-term rental.” No short-term rental under two nights shall be allowed. The Board of
Directors is empowered to create rules and regulations to protect the interests of the other Owners
of the property, to levy fines and other special assessments against short-term renters and to
prohibit repeat offenders from entering into short-term rentals. No guest parking spaces may be
used by short-term renters. Any Owner who rents such Owner’s Unit shall be responsible for
assuring compliance by its renters with the Project Documents and any rules established by the
Board of Directors designed to maintain the peace, safety and security of the community.
3.8 Easements; Drainage; Support, Maintenance and Repair. There are hereby
RESERVED and the Association is hereby GRANTED the following easements and rights of
way:
(a) A non-exclusive easement over, across, through, above and under the Units
and the Common Areas for the operation, maintenance and regulation of the Common
Areas, amenities, facilities, and any utilities servicing any part of the Project; and
(b) A reciprocal easement on, over, under, through and across all Units and
Common Areas for the drainage of surface waters on, over, under, through and across the
Project.
3.9 Liability of Owners for Damages. Any Owner shall be liable to the Association or
other Owners or residents for damages to person or property in the Community caused by
his/her/its negligence and the neglighence caused by his/her/its invitees, lesees, tenants, renters
and their respective invitees.
3.10 Encroachments. In the event that any portion of the Common Areas or a Unit
encroaches or comes to encroach upon other Common Areas or a Unit as a result of construction,
reconstruction, repair, shifting, setting or movement, an easement for such encroachment is
created hereby and shall exist so long as such encroachment exists.
3.11 Board of Directors. The Association shall be managed by a Board of Directors
which shall be comprised of a minimum of three (3) members but no more than seven (7) members
(as determined by the Board of Directors). Until the happening of the Events (described below),
the Declarant shall have the exclusive and irrevocable right to appoint all of the members of the
Board of Directors and their successors or replacements. At the first annual homeowners meeting
after the occurrence of the Events, three members of the Board of Directors shall be elected by
the Owners. Two (2) of the members shall be elected for two (2) year terms and one (1) member
shall be selected for a one (l) year term. Thereaft er, all members of the Board of Directors shall
be elected for two (2) year terms. This staggering feature will provide continuity to the
management of the Association.
(a) Qualify. To qualify, a member of the Board of Directors must be an
individual Owner, or the legal representative of an organizational Owner.
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(b) Vacancies. Vacancies in the Board of Directors caused by any reason other
than removal of a member by a vote of the Members shall be filled by vote of the Majority
of the remaining members of the Board of Directors at a special meeting of the Board of
Directors held for that purpose promptly after the occurrence of any such vacancy, even
though the total members remaining may constitute less than a quorum of the Board of
Directors; and each person so elected shall be a member for the remainder of the term of
the member so replaced and until a successor is elected at the next annual meeting of the
Association. A vacancy created by the removal of a member by a vote of the Association
shall be filled by the election and vote of the Association.
(c) Removal of Board of Directors Member/Declarant’s Rights. Except for
Board of Directors members appointed by the Declarant before the occurrence of the
Events, Board of Directors members may be removed at any time by the affirmative vote
of a Majority of the members of the Association. A replacement to serve the remainder of
the removed member’s unexpired term shall be elected at the same meeting.
(d) Term. Unless he or she forfeits or otherwise loses his or her seat as herein
provided, a member shall serve on the Board of Directors until his successor qualifies and
is properly elected by the Association.
(e) No Compensation. Board of Directors members shall not be compensated
for their services but shall be reimbursed for all expenses reasonably incurred in connection
with Board of Directors business and approved by the Board of Directors.
3.12 Officers and Agents. The Board of Directors shall perform its functions through
officers elected in accordance with the Bylaws.
3.13 Board of Directors Meetings. Regular and special meetings of the Board of
Directors shall be held in accordance with the Bylaws.
3.14 Status and General Authority of Board of Directors. Any instrument executed by
the Board of Directors that recites facts which, if true, would establish the Board of Director’s
power and authority to accomplish through such instrument what is purported to be accomplished
thereby, shall conclusively establish said power and authority in favor of any person who in good
faith and for value relies upon said instrument. The Board of Directors shall have, and is hereby
granted, the following authority and powers:
(a) To Enter. The power and authority to enter into or upon any Unit to repair,
inspect and to do other work reasonably necessary for the proper maintenance and
operation of the Project. Except in the case of an emergency, reasonable notice shall be
given to the residents.
(b) Grant Easements. The authority, without the vote or consent of the Owners,
Mortgagees, insurers or guarantors of any Mortgage, or of any other Person, to grant or
create, on such terms as it deems advisable, reasonable permits, licenses, and non-exclusive
easements over, under, across and through the Common Areas for utilities, roads, and other
purposes reasonably necessary or useful for the proper maintenance, operation or
regulation of the Project.
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(c) Execute Documents. The authority to execute and record, on behalf of all
Owners, any amendment to the Declaration or Plat which has been approved by the vote
or consent necessary to authorize such amendment.
(d) Standing. The power to sue and be sued.
(e) Enter Into Contracts. The authority to enter into contracts which in any way
concern the Project, so long as any vote or consent necessitated by the subject matter of
the agreement has been obtained.
(f) Promulgate Rules. The authority to promulgate such reasonable
administrative guidelines, rules, regulations, and procedures as may be necessary or
desirable to aid the Board of Directors in carrying out any of its functions or to insure that
the Project is maintained and used in a manner consistent with this Declaration.
(g) Meetings. The authority to establish procedures for the conduct of its
meetings, including but not limited to the power to decide what portion of the meeting shall
be open or closed to Members of the Association or residents not on the Board of Directors,
to retire to executive session, to regulate record keeping, and to allow, control or prohibit
the electronic reproduction (video or audio) of Board of Directors meetings.
(h) Assignment or Leasing of Common Areas Parking Spaces. The authority to
assign or lease open Common Areas parking spaces to residents.
(i) All Other Acts. The power and authority to perform any and all other acts,
and to enter into any other transactions which may be reasonably necessary for the Board
of Directors to perform its functions on behalf of the Owners.
3.15 Delegation of Management Responsibilities. The Board of Directors may delegate
some of its management responsibilities to either a professional management company, an
experienced on-site manager, independent contractors, through service contracts, or any
combination thereof. The termination provision of any such contract shall not require a
termination penalty or any advance notice of more than thirty (30) days, no such contract shall be
for a term greater than one (1 ) year.
3.16 Owners Meetings. The Association Members shall meet as follows:
(a) Annual Meeting. The annual meeting of the Owners shall be held in
accordance with the Bylaws.
(b) Special Meetings. Special meetings of the Owners shall be held in
accordance with the Bylaws.
(c) Waiver of Notice. No notice of any Owners meeting shall be required if a
waiver of such notice is signed by all of the Owners. Whenever all of the Owners meet in
person or by proxy such meeting may not be challenged on grounds of inadequate notice.
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(d) Quorum. The presence in person or by proxy of three (3) of the Owners
entitled to cast a vote shall constitute a quorum for the transaction of business at any
Owner’s meeting.
(1) Quorum Not Present. If a quorum is not present at any Owners
meeting, whether regular or special, the meeting may be adjourned and rescheduled
for a time no earlier than forty-eight (48) hours and no later than thirty (30) days,
after the time set for the original meeting.
(2) Quorum at Rescheduled Meeting. Those Members present at the
rescheduled meeting and entitled to vote shall constitute a quorum at the
rescheduled meeting.
(3) Percentage Approval Requirement. Notwithstanding the foregoing
provisions of this section, however, in any case in which this Declaration requires
the affirmative vote of a certain percentage of Owners for authorization or approval
of a matter, their consent, in person, by proxy or in writing is required for
authorization or approval of the item, regardless of the quorum requirements.
3.17 Classes of Membership and Voting Allocations. The Association shall have two (2)
classes of membership—Class A and Class B, described more particularly as follows:
(a) Class A. Class A Members shall be all Owners with the exception of the
Class B members, if any. Class A Members shall be entitled to vote on all issues before the
Association, subject to the following:
(1) One Vote. Each Unit shall have one (1) vote.
(2) Subject to Assessment. No vote shall be cast or counted for any Unit
not subject to Assessment;
(3) Multiple Owners. When more than one (1) Person or entity holds an
ownership interest in a Unit, the vote for such Unit shall be exercised by those
Persons or entities as they themselves determine and advise the Secretary of the
Association prior to any meeting. In the absence of such advice, the vote of the Unit
shall be suspended in the event more than one (l) Person or entity seeks to exercise
it.
(4) Leased Unit. An Owner of a Unit which has been leased may, in the
lease or other written instrument, assign the voting right appurtenant to that Unit to
the lessee, provided that a copy of such instrument is furnished to the Secretary at
least three (3) days prior to any meeting.
(b) Class B. The Class B Member shall be Declarant and any successor of
Declarant who is designated as such in a recorded instrument executed by Declarant. The
Class B Member shall be entitled to three (3) votes per Unit owned. The Class B
membership shall terminate, and Class B membership shall convert to Class A Membership
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upon the happening of the earlier of the following (herein referred to as the “Event” or
“Events”):
(1) Units Sold. Four (4) months after one hundred percent (100%) of
the Units (constructed upon the Units) have been sold by Declarant within the
Project to anyone other than any designated successor to Declarant; or
(2) Twenty-Five Years. Twenty-Five (25) years from the recording of
this Declaration in the Office of the Recorder of Madison County, Idaho; or
(3) Election. When, in its sole discretion, Declarant so determines. If
and when Declarant or its successor(s) elects to relinquish control of the
Association, Declarant shall send written notification to each Owner of the effective
date of the relinquishment or transition (the “Transition Date”) at least forty-five
(45) days prior thereto. Thereupon, the Owners shall call a meeting to elect the
members of the Board of Directors to take office as of the Transition Date.
From and after the happening of the first to occur of the Events, the Class B Member shall be
deemed to be a Class A Member entitled to one (l) vote for each Unit owned. At such time,
Declarant shall call a meeting, in the manner described in the Bylaws of the Association for special
meetings, to advise the membership of the termination of Class B status.
3.18 List of Owners Eligible Mortgagees, and Eligible Insurers of Guarantors. The
Board of Directors shall maintain up-to-date records showing: a) the name of each Person who is
an Owner, the address of such Person, and the Unit which is owned by such Owner; b) the name
of each Person or entity who is an Eligible Mortgagee, the address of such Person or entity, and
the Unit which is encumbered by the Mortgage held by such Person or entity; and c) the name of
each Person or entity who is an Eligible Mortgagee or Eligible Insurer or guarantor, the address
of such Person or entity, and the Unit which is encumbered by the Mortgage insured or guaranteed
by such Person or entity. In the event of any trans fer of a fee or undivided fee interest in a Unit,
either the transferor or transferee shall furnish the Board of Directors with evidence establishing
that the transfer has occurred and that the Deed or other instrument accomplishing the transfer is
of record in the Office of the Recorder of Madison County, Idaho. The Board of Directors may
for all purposes act and rely on the information concerning Unit ownership in its records or, at the
option of the Board of Directors, the records of the Recorder of Madison County, Idaho. The
address of any Owner shall be deemed to be the address of the Unit owned by such Person, unless
the Board of Directors is otherwise advised in writing.
3.19 Capital Improvements and Table. The Board of Directors shall prepare a table of
Capital Improvements, which shall contain a list of foreseeable expenditures for Capital
Improvements within the Area of Common Responsibility (as hereinafter defined). The table shall
be included in every annual Budget, and it shall be reviewed and updated at least annually, and
reasonable reserve accounts shall be established by the Board of Directors for the replacement of
capital assets as they age. Expenditures by the Association for Capital Improvements to the Project
shall be subject to and governed by the following:
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(a) Board of Directors Discretion/Expenditure Limit. So long as the line item
in the annual Budget for such improvements will not be exceeded by more than ten percent
(10%), Capital Improvements may be authorized by the Board of Directors alone.
(b) Owner Approval/Expenditure Limit. Any Capital Improvements, the cost
of which will exceed the amount described in Section 3.18(a) must prior to the
commencement of construction, be authorized by at least a Majority of the Owners.
3.20 Operation, Maintenance and Alterations. The Units and Common Areas shall be
maintained by the Owners and the Association as follows:
(a) Area of Common Responsibility. The Association shall maintain, repair and
replace, as needed from time to time, all roofs, foundations, footings, columns, girders,
beams and exterior walls and surfaces of all Buildings, the Common Areas, and certain
Improvements constructed or installed thereon and in, on or about the Units, including but
not limited to all entrances to and exits from the Project, private streets within the Project,
all park strips within the Project, open parking spaces, including without limitation the
guest/pocket parking areas within the Project, street lighting, common sidewalks, the
private storm drainage system for the Project, including without limitation the storm drain
inlets, storm water lines, underground storm water detention areas, detention basins for
storm water drainage, and the drainage swales, the landscaped portions of the Common
Areas identified on the Plat, curbs and gutters, pavement and central utility systems for
internet, power and light. The foregoing items are referred to as the “Area of Common
Responsibility.”
(b) Landscaping Restrictions. Owners shall not modify the landscaping, green
space, sod, plant and flower beds, sprinkling system, or drainage in, on or about the
Common Areas without the prior written consent of the Board of Directors, except that
Owners shall have the right to plant flowers in approved and planned flower beds.
(c) Snow and Ice Accumulations. The Association shall cause to be taken
reasonable efforts to clear ice and snow accumulations from roads and streets within the
Project and also from common walkways and the Common Areas. The Board of Directors
shall have the right to designate certain areas within the Project that are to be reserved for
snow storage during the period of time beginning on November 1 and continuing through
the subsequent March 30. During such period of time, there shall be no overnight parking
within such designated snow storage areas. Each Owner shall be responsible to clear ice
and snow accumulations from all other locations surrounding such Owner’s Unit, including
but not limited to all parking spaces and walkways (and steps) to the Unit’s main entrance
and on the sides and to the rear of the Unit, decks, patios and landings.
(d) Garbage Removal. Each Owner shall be responsible to remove all garbage,
debris and refuse from his Unit and deposit it in an approved trash container. Personal
trash containers shall be kept out of sight and public containers shall be placed at the
direction of the Board.
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(e) Area of Personal Responsibility. Each Owner shall maintain, repair and
replace all interior spaces and improvements constituting a part of such Owner’s Unit. The
following items are expressly included in the Area of Personal Responsibility: all interior
walls and spaces of any Unit, all individual utility services such as power, light, gas, hot
and cold water, individual water metering, heating, refrigeration and air conditioning
systems, fixtures, windows, doors, patios, balconies and decks. If an item is not included
in the foregoing description of Area of Common Responsibility and it is located within a
Unit, then it shall be the responsibility of the Owner, unless otherwise determined in
writing by the Board of Directors (“Area of Personal Responsibility”).
(f) Utilities. The Association shall arrange for the provision by appropriate
utility providers of any utility services not separately metered and billed to the individual
Owners by the provider which may include fiber-optic internet and data providers. The
costs for all such utility services arranged by the Association shall be a Common Areas
Expense.
(g) Standard of Care/General. The Property shall be maintained in a usable,
clean, functional, attractive and good condition, consistent with Community Standards.
Aesthetic considerations alone, and matters of taste, are sufficient to enjoin a violation of
this Declaration.
(h) Standard of Care/Landscaping. All landscaping in the Project shall be
maintained and cared for in a manner consistent with Community Standards and the quality
of design and construction originally established by Declarant. Specific guidelines and
restrictions on landscaping may be established by the Board of Directors from time to time.
All landscaping shall be maintained in a neat and orderly condition. Any weeds or diseased
or dead lawn, trees, ground cover or shrubbery shall be removed and replaced within six
(6) months. All lawn areas shall be neatly mowed, and trees, shrubs and bushes shall be
properly pruned and trimmed.
(i) Neglect. If the Board of Directors determines that any Owner has failed or
refused to discharge properly his obligation with regard to the maintenance, repair, or
replacement of items for which he is responsible hereunder; or that the need for
maintenance, repair, or replacement of the Common Areas is caused through the willful or
negligent act of any Owner, his Family, Guests or lessees, and it is not covered or paid by
insurance, in whole or in part, then the Association may, but is not obligated to, provide
such maintenance, repair or replacement at the Owner’s sole cost and expense, subject to
the following:
(1) Assessment. Such costs as are incurred by the Association in the
performance of an item included in the Area of Personal Responsibility shall be
added to and become a part of the Assessment to which such Owner and Unit is
subject, and shall be secured by a lien against his Unit regardless of whether a notice
of lien is filed.
(2) Notice of Intent to Repair. Except in an emergency situation, the
Association shall give the Owner written notice of the Association’s intent to
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provide necessary maintenance, repair, or replacement at such Owner’s cost and
expense. The notice shall set forth with reasonable particularity the maintenance,
repair, or replacement deemed necessary by the Board of Directors. The Owner
shall have ten (10) days after receipt of notice within which to complete
maintenance or repair, or if the maintenance or repair is not capable of completion
within such time period, to commence replacement or repair within ten (10) days
and thereafter complete such replacement or repair in a prompt manner.
(3) Emergency Situation. If the Board of Directors determines that an
emergency situation exists, then notice to the Owner and an opportunity to cure the
default is not necessary.
(4) Optional Repairs. The Association may, but is not obligated to,
provide any such maintenance, repair, or replacement in the manner described
above.
(5) Right of Entry. The Association or its agents or employees shall
have a right to enter upon or into any Unit or Common Areas as necessary to
perform such work and shall not be liable for trespass for such entry or work.
(j) Changes to Areas of Personal or Common Responsibility. The Board of
Directors may, in its sole discretion, add items to or subtract items from the Areas of
Personal or Common Responsibility upon at least thirty (30) days prior written notice to
the Owners.
(k) Alterations to the Common Areas. Anything to the contrary notwithstanding
and until the occurrence of the Events, the Declarant may make changes to the Common
Areas without the consent of either the Association or the Board of Directors; provided,
however, no Owner or resident may make any structural alterations, modifications, changes
or improvements to the Common Areas, including but not limited to any additions,
extensions, enclosures, fencing, decks, patios, walkways, structures or sheds not shown on
the approved plans and specifications, without the prior consent of the Board of Directors.
No fencing is allowed without the prior written consent of the Board of Directors.
3.21 Common Areas Expenses. Each Owner, upon receipt of a deed to a Unit, shall pay
his Assessments subject to and in accordance with the restrictions set forth below; provided,
however, anything to the contrary notwithstanding, the Declarant shall not be obligated to pay
Assessments until such time as any residential structure, Building or Unit is substantially complete
and a permanent certificate of occupancy has been issued or, in the alternative, the Declarant
elects in writing to commence payment, whichever first occurs.
(a) Purpose of Common Areas Assessments. The “Common Areas
Assessments” provided for herein shall be used for the general purpose of operating the
Project, promoting the recreation, health, safety, welfare, common benefit and enjoyment
of the Owners and residents, including the maintenance of any real and personal property
owned by the Association, and regulating the Community, all as may be more specifically
authorized from time to time by the Board of Directors.
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(b) Creation of Common Areas Assessments. The Common Areas Assessments
shall pay for the Common Areas Expenses of the Association as may be from time to time
specifically authorized by the Board of Directors. Each Owner, by acceptance of a deed for
a Unit within the Project, whether or not it shall be so expressed in such deed, covenants
and agrees to pay to the Association in a timely manner all Assessments assessed.
(c) Budget. Not less than ten (10) days or more than thirty (30) days prior to
the annual Owners’ meeting of the Association, the Board of Directors shall prepare and
deliver to the Owners a proposed budget (the “Budget”) which:
(1) Itemization. Shall set forth an itemization of the anticipated
Common Areas Expenses and Common Areas Assessments for the twelve (12)
month calendar year, commencing with the following January 1.
(2) Basis. Shall be based upon advance estimates of cash requirements
by the Board of Directors to provide for the payment of all estimated expenses
growing out of or connected with the maintenance and operation of the Common
Areas, which estimates shall include but are not limited to expenses of
management, grounds maintenance, taxes and special assessments, premiums for
all insurance which the Board of Directors is required or permitted to maintain,
common lighting and heating, water charges, fiber optic and related community
internet charges, carpeting, painting, striping, repairs and maintenance of the
Common Areas and replacement of those elements of the Common Areas that must
reasonably be replaced on a periodic basis, wages for Board of Directors
employees, legal and accounting assessments, any deficit remaining from a
previous period, the creation of a reasonable contingency reserve, surplus or sinking
fund, capital improvement or replacement reserve, and any other expenses and
liabilities which may be incurred by the Association for the benefit of the Owners
under and by reason of this Declaration (collectively referred to herein as
“Common Area Expenses”).
(d) Uniform Rate of Common Areas Assessments. The annual Common Areas
Assessments shall be allocated to the Owners equally and may be collected on an annual,
semi-annual, quarterly or monthly basis, as determined by the Board of Directors.
(e) Approval of Budget and Common Areas Assessments. The proposed
Budget and the Common Areas Assessments shall become effective unless disapproved at
the annual Owners’ meeting by a vote of at least 65% of the Owners or unless disapproved
by a vote of at least 65% of the Owners at a special meeting called for that purpose within
45 days after the date of the meeting at which the Board of Directors presented the proposed
Budget to the Owners. Notwithstanding the foregoing, however, if the membership
disapproves the proposed Budget and Common Areas Assessments or the Board of
Directors fails for any reason to establish the Budget and Common Areas Assessments for
the succeeding year, then and until such time as a new Budget and new Common Areas
Assessment schedule shall have been established, the Budget and the Common Areas
Assessments that the Board of Directors last adopted that was not disapproved by at least
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a 65% of the Owners shall continue as the Budget until and unless the Board of Directors
presents another Budget to the Owners and that Budget is not disapproved.
(f) Payment of Common Areas Assessments. The Board of Directors has the
sole authority and discretion to determine how and when the annual Common Areas
Assessments are paid. The dates and manner of payment of the Common Areas
Assessment shall be determined by the Board of Directors.
(g) Personal Obligation of Owner. Owners are liable to pay all Assessments
assessed, accruing interest, late Assessment and collection costs, including attorneys’ fees.
The Mortgagee or beneficiary under a Deed of Trust and the seller under an executory
contract of sale such as a uniform real estate contract, land sales contract, or other similar
instrument, who obtains title to a Unit pursuant to the remedies provided in the contract,
Mortgage or Deed of Trust shall be liable for unpaid Assessments which accrued prior to
the acquisition of title. For purposes of this Section, the term “Owner” shall mean and refer
jointly and severally to: (i) the Owner of both the legal and equitable interest in any Unit,
(ii) the owner of record in the Recorder’s Office and (iii) both the Buyer and Seller under
any executory sales contract or other similar instrument.
(h) Equitable Changes. If the aggregate of all monthly payments on all of the
Units is too large as a result of unanticipated expenses, the Board of Directors may from
time to time effect an equitable change in the amount of said payments. Owners shall be
given at least thirty (30) days written notice of any changes.
(i) Dates and Manner of Payments. The dates and manner of payment shall be
determined by the Board of Directors.
(j) Reserve Accounts. The Board of Directors shall establish and maintain at
least two (2) reserve accounts: one to pay for unexpected operating expenses and the other
to pay for Capital Improvements (known as the Reserve Fund discussed more fully below).
The reserve accounts shall be funded out of Assessments (as reasonably determined by the
Board of Directors).
(k) Acceleration. Common Areas Assessments shall be paid in the manner and
on dates fixed by the Board of Directors who may, at its option and in its sole discretion,
elect to accelerate the entire annual Common Areas Assessment for delinquent Owners. If,
however, the Common Areas Assessment is accelerated and an Owner subsequently files
bankruptcy or the Board of Directors otherwise decides acceleration is not in its best
interest, the Board of Directors, at its option and in its sole discretion, may elect to
decelerate the obligation.
(l) Statement of Assessments Due. Upon written request, the Board of
Directors shall furnish to any Owner a statement of any Assessments due, if any, on his
Unit. Failure to provide the certificate within ten (10) days after a written request, shall be
deemed conclusive evidence that all Assessments are paid current. The Association may
require the advance payment of a processing charge not to exceed $10.00 for the issuance
of such certificate.
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(m) Superiority of Assessments. All Common Areas Assessments and all other
Assessments and liens created to secure the obligation to pay Assessments are superior to
any homestead exemptions to which an Owner may be entitled.
(n) Termination of Delinquent Owner’s Rights. The Board of Directors may
terminate an Owner’s right to receive a utility service for which the Owner pays as a
Common Areas Expense through such Owner’s Common Areas Assessments and also an
Owner’s right of access to and use of any recreational facilities within the Project, if an
Owner is delinquent in the payment of any Assessments payable by such Owner.
(o) Suspension of Right to Vote for Non-Payment. At the discretion of the
Board of Directors, the right of an Owner to vote on issues concerning the Association may
be suspended if the Owner is delinquent in the payment of any Assessments, and has failed
to cure or make satisfactory arrangements to cure the default after reasonable notice of at
least ten (10) days.
(p) Failure to Assess. The omission or failure of the Board of Directors to fix
the Common Areas Assessment amounts or rates or to deliver or mail to each Owner a
Common Areas Assessment notice shall not be deemed a waiver, modification, or a release
of any Owner from the obligation to pay Common Areas Assessments or any other
Assessments. In such event, each Owner shall continue to pay annual Common Areas
Assessments on the same basis as for the last year for which a Common Areas Assessment
was made until a new Common Areas Assessment is made, at which time any shortfalls in
collections may be assessed retroactively by the Association.
(q) Re-assessments. The Board may exercise its business judgment and if,
because of bankruptcies and/or foreclosures, the charge-offs and delinquencies in any
given year create too great a shortfall in the operating account and budget, then the Board,
rather than deplete the contingency reserve account, may elect to reassess among all of the
Owners based upon their percentages of ownership interest an amount equal to the total of
unpaid or uncollected assessments. Owners shall be given at least thirty (30) days written
notice of any such reassessment.
(r) Reserve Fund. The Board shall cause the Association to establish and
maintain an adequate and reasonable Reserve Fund for maintenance, repairs and
replacement of the Common Areas that are to be maintained by the Association that must
be replaced on a periodic basis, and such reserves shall be funded from the Common Areas
Assessments (in amounts to be reasonably determined by the Board in accordance with the
terms hereof and applicable law). The Reserve Fund shall be maintained by the
Association in a bank account separate from the bank account maintained by the
Association for the other funds of the Association. Within the Reserve Fund, the
Association shall maintain a separate account designated and intended solely for the repair,
maintenance and replacement from time to time of the private roads located within the
Project, which shall be funded from the Assessments (in amounts to be reasonably
determined by the Board in accordance with the terms hereof and applicable law). The
Board shall cause a Reserve Fund analysis to be conducted on a periodic basis. After the
initial Reserve Fund analysis is conducted, the Board shall review and, if necessary, update
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a previously conducted Reserve Fund analysis on a periodic basis. The Board may conduct
a Reserve Fund analysis itself or may engage a reliable person or organization, as
determined by the Board, to conduct the Reserve Fund analysis. The Board may not use
money in the Reserve Fund: (a) for daily maintenance expenses, unless a majority of the
Members vote to approve the use of the Reserve Fund money for that purpose; or (b) for
any purpose other than the purpose for which the Reserve Fund was established. The Board
shall maintain the Reserve Fund separately from other funds of the Association. The
foregoing may not be construed to limit the Board from prudently investing money in the
Reserve Fund, subject to any investment constraints imposed by the Articles of
Incorporation or the Bylaws of the Association. The Association shall: (a) annually, at the
annual meeting of Owners or at a special meeting of Owners: (i) present any Reserve Fund
analysis conducted; and (ii) provide an opportunity for Owners to discuss reserves and to
vote on whether to fund a Reserve Fund and, if so, how to fund it and in what amount; and
(b) prepare and keep minutes of each such meeting held and indicate in the minutes any
decision relating to funding a Reserve Fund.
3.22 Special Assessments. In addition to the other Assessments authorized herein, the
Association may levy special assessments (“Special Assessments”) in any year, subject to the
following:
(a) Board of Directors Based Assessment. So long as the Special Assessment
does not exceed the sum of One Thousand Dollars ($1,000.00) (the “Special Assessment
Limit”) per Unit in any one fiscal year, the Board of Directors may impose the Special
Assessment without any additional approval.
(b) Association Approval. Any Special Assessment which would exceed the
Special Assessment Limit shall be effective only if approved by a Majority of the Members
of the Association. The Board of Directors in its discretion may allow any Special
Assessment to be paid in installments.
3.23 Specific Assessments. The Board of Directors shall also have the power specifically
to assess the Owners in a particular area pursuant to this Section (“Specific Assessment”) as, in
its discretion, it shall deem necessary or appropriate, subject to the following:
(a) No Obligation or Waiver. Failure of the Board of Directors to exercise its
authority under this Section shall not be grounds for any action against the Association or
the Board of Directors and shall not constitute a waiver of the Board of Director’s right to
exercise its authority under this Section in the future with respect to any expenses,
including an expense for which the Board of Directors has not previously exercised its
authority under this Section.
(b) Enabling Power. The Board of Directors may specifically assess an Owner
in a particular area in the manner set forth below; provided, however, the Specific
Assessment is not for any maintenance, repair or replacement ordinarily required by this
Declaration, and the Owner has the choice to accept or reject the benefit:
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(1) If the expense benefits less than all of the Units, then those Units
benefited may be specifically assessed, and the Specific Assessment shall be
equitably apportioned among those Units according to the benefit received.
(2) If the expense benefits all Units, but does not provide an equal
benefit to all Units, then all Units shall be specifically assessed, but the Specific
Assessment shall be equitably apportioned among all Units according to the benefit
received.
3.24 Individual Assessments. Individual assessments (“Individual Assessments”) shall
be levied by the Board of Directors against a Unit and its Owner to reimburse the Association for:
(a) fines levied and costs incurred in enforcing Project Documents;
(b) costs associated with the maintenance, repair or replacement of that for
which the Owner is responsible;
(c) any other charge, fee, dues, expense, or cost designated as an Individual
Assessment in the Project Documents; and
(d) attorneys’ fees, interest, and other charges relating thereto as provided in
this Declaration.
3.25 Collection of Assessments. All Assessments must be paid in a timely manner and
shall be collected as follows:
(a) Time is of the Essence. Time is of the essence, and all Assessments shall be
paid promptly when due.
(b) Delinquent Assessments. Any Assessments which are not paid when due
are delinquent (“Delinquent Assessments”) and shall constitute a lien against the Unit
affected, which lien shall attach automatically, regardless of whether a notice of lien is
recorded.
(c) Late Assessment and Accruing Interest. Any Assessments delinquent for a
period of more than thirty (30) days shall incur a late charge of Twenty-Five Dollars
($25.00) or five percent (5%) of the delinquent amount, whichever is greater. Interest at
the rate of one and 1/2 percent (1.5%) per month shall accrue on all delinquent accounts.
The Board of Directors may, in its sole discretion, change the amount of the late charge or
waive the late charge and accruing interest but is not required to do so.
(d) Notice of Delinquency. The Association shall give a notice of delinquency
to any Owner who has not paid his Assessments in a timely manner.
(e) Notice of Lien. If any Assessment in a notice of lien evidencing the unpaid
amounts, accruing interest, late charges, attorneys’ fees, the cost of a foreclosure or
abstractor’s report, and any other Additional Charges permitted by law should be filed with
the County Recorder, then the lien provided for in this Section shall be in favor of the
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Association and shall be for the benefit of all other Owners. It may be executed by the
Association’s attorney, manager, Board of Directors member or other designated agent.
(f) Foreclosure of Lien and/or Collection Action. If any Assessments remain
unpaid, the Association may, as determined by the Board of Directors, institute suit to
collect the amounts due and/or to foreclose the lien.
(g) Personal Obligation. Each Owner, by acceptance of a deed or as a party to
any other type of conveyance, vests in the Association or its agents the right and power to
bring all actions against him or her or such entity personally for the collection of the
Assessment as a debt or to foreclose the lien in the same manner as mechanics liens,
mortgages, deeds of trust or encumbrances may be foreclosed. In the event the Association
seeks collection personally against any Owner for payment of Delinquent Assessement,
such action(s) shall not serve to waive the Association’s lien pursuant to Idaho Code 6-
101(m) or other law.
(h) No Waiver. No Owner may waive or otherwise exempt himself or herself
or itself from liability for the Assessments provided for herein by the non-use of Common
Areas or by the abandonment of his Unit.
(i) Duty to Pay Independent. No reduction or abatement of Assessments shall
be claimed or allowed by reason of any alleged failure of the Association or Board of
Directors to take some action or to perform some function required to be taken or
performed by the Association or Board of Directors under this Declaration or the Bylaws,
or for inconvenience or discomfort arising from the making of repairs or improvements
which are the responsibility of the Association, or from any action taken to comply with
any law, ordinance, or with an order or directive of any municipal or other governmental
authority. The obligation to pay Assessments shall be a separate and independent covenant
on the part of each Owner.
(j) Application of Payments. All payments shall be applied as follows:
Additional Charges, Delinquent Assessments and current Assessments.
(k) Foreclosure of Lien as Mortgage or Trust Deed. The lien for nonpayment
of Assessments may be enforced by sale or foreclosure of the Owner’s interest therein by
the Board of Directors. The sale or foreclosure shall be conducted in the same manner as
foreclosures in deeds of trust or in any other manner permitted by law. In any foreclosure
or sale, the Owner shall pay the costs and expenses of such proceedings, including but not
limited to the cost of a foreclosure report and reasonable attorneys’ fees. The Board of
Directors may bid for the Unit at foreclosure or other sale and hold, lease, mortgage, or
convey the same.
(l) Appointment of Trustee. Declarant hereby conveys and warrants, to
Parsons Behle and Latimer c/o Jon A. Stenquist, ESQ., 350 Memorial Drive, Idaho Falls,
Idaho 83402, with power of sale, all of the Units within the Project and all of the
Improvements to the Units within the Project for the purpose of securing payment of all of
the Assessments under the terms of this Declaration. Each Owner, by accepting a deed to
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the Unit, also hereby conveys and warrants to Parsons Behle and Latimer, as trustee, with
power of sale, each Unit acquired by such Owner and all of the Improvements thereon for
the purpose of securing payment of all of the Assessments under the terms of this
Declaration and such Owner’s performance of such Owner’s obligations set forth herein.
(m) Attorney in Fact. Unless prohibited by Idaho law, each Owner by accepting
a deed to a Unit hereby irrevocably appoints the Association as his attorney in fact to collect
rent from any Person renting his Unit, if the Unit is rented and if the Owner is delinquent
in his Assessments. Rent due shall be paid directly to the Association, upon written
demand, until such time as the Owner’s Assessments are current; and the Owner shall credit
the renter, against rent due, for the amount of money paid to the Association.
3.26 Liability of Board of Directors. The Association shall indemnify every officer and
member of the Board of Directors against any and all expenses, including but not limited to
attorneys’ fees reasonably incurred by or imposed upon any officer or member of the Board of
Directors in connection with any action, suit, or other proceeding (including settlement of any suit
or proceeding, if approved by the then Board of Directors) to which he or she may be a party by
reason of being or having been an officer or member of the Board of Directors. The officers and
members of the Board of Directors shall not be liable for any mistake of judgment, negligent or
otherwise, except for their own individual willful misfeasance, malfeasance, misconduct or bad
faith. The officers and members of the Board of Directors shall have no personal liability with
respect to any contract or other commitment made by them, in good faith, on behalf of the
Association, and the Association shall indemnify, defend and hold harmless each such officer and
member of the Board of Directors from and against any and all liability to others on account of
any such contract or commitment. Any right to indemnification provided for herein shall be
exclusive of any other rights to which any officer or member of the Board of Directors, or former
officer or member of the Board of Directors, may be entitled. The Association shall, as a Common
Areas Expense, maintain adequate general liability and officer’s and director’s insurance coverage
to fund this obligation, if such insurance is reasonably available.
3.27 Insurance. The Board of Directors shall at all times purchase, maintain in force, and
pay the premium for insurance on all Buildings and all Common Areas within the Project,
satisfying at least the following requirements:
(a) Fire and Extended Coverage. The Board of Directors shall have the
authority to and shall obtain insurance for all Buildings, and also for all structures, fixtures
and equipment, and common personal property and supplies now or at any time hereafter
constituting a part of the Common Areas, or common property of the Association, against
loss or damage by fire, lightning, and such other perils as are ordinarily insured against by
standard extended coverage endorsements, and all other perils which are customarily
covered with respect to projects similar in construction, location, and use, including all
perils normally covered by the standard “all risk” endorsement, where such is available,
issued in the locale of the Property, or, if the policy does not include an “all risks”
endorsement, a policy that includes the “broad form” covered causes of loss, in amounts at
all times (i) that are sufficient to prevent the Owners from becoming co-insurers under the
terms of any applicable coinsurance clause or provision and (ii) that are not less than one
hundred percent (100%) of the current insurable replacement cost of such items (exclusive
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of land, foundations, footings, excavations, and other items normally excluded from
coverage). This insurance shall also:
(1) provide coverage for built-in or installed improvements, fixtures,
and equipment that are part of a Unit, and shall provide for coverage of interior
walls, windows and doors, and the frames, sashes, jambs and hardware therefor,
even though these Improvements may be parts of Units;
(2) provide that no assessment may be made under the policy against a
first mortgage lender, or its insurer or guarantor;
(3) be written in the name of the Association for the use and benefit of
the Owners, or its authorized representative, including any insurance trustee with
whom the Association has entered into an insurance trust agreement, or any
successor to such trustee, for the use and benefit of the individual Owners;
(4) have a deductible amount in a reasonable amount approved by the
Board of Directors;
(5) be paid for by the Association through annual assessments of the
Owners;
(6) contain a waiver of subrogation of rights by the carrier as to the
Association, to its officers and directors, and to all Owners; and
(7) be primary, even if an Owner has other insurance that covers the
same loss.
(b) Liability Insurance. The Association shall obtain and maintain a
commercial policy of general liability insurance covering all of the Common Areas, Units,
Units, public ways, and any other areas under the Association’s supervision, and
Dwellings, if any, owned by the Association, even if leased to others, insuring the
Association, the directors of the Board, and the Owners and Occupants, with such limits as
the Board may determine, but not less than the greater of (i) the amounts generally required
by institutional first mortgage holders, insurers, and guarantors for projects similar in
construction, location and use, and (ii) one million dollars, for bodily injury, including
deaths of persons, and property damage, arising out of a single occurrence. This insurance
shall contain a “severability of interest” provision, or, if it does not, an endorsement which
shall preclude the insurer from denying the claim of an Owner because of negligent acts of
the Association, the Board, or other Owners, and shall include, without limitation, coverage
for legal liability of the insureds for property damage, bodily injuries and deaths of persons
resulting from the operation, maintenance or use of the Common Areas, Units and
Buildings, and legal liability arising out of lawsuits related to employment contracts in
which the Association is a party.
(c) Fidelity Coverage. The Board shall obtain and maintain fidelity insurance
providing coverage for the Association against dishonest acts on the part of directors,
managers, trustees, employees, agents, and volunteers responsible for or handling funds
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belonging to or administered by the Association. The fidelity insurance policy must name
the Association as the named insured and shall be written in an amount sufficient to provide
protection, which is in no event less than the greater of (i) an amount equal to the
Association’s reserve funds plus three months’ assessments on all Units, and (ii) the
maximum amount that will be in the custody of the Association or the Manager at any time
while the policy is in force. In connection with such coverage, an appropriate endorsement
to the policy to cover any persons who serve without compensation shall be added if the
policy would not otherwise cover volunteers. The policy shall provide that it shall not be
canceled or substantially modified (including cancellation for non-payment of premium)
without at least ten (10) days’ prior written notice to the Association and any insurance
trustee. Any Manager who handles funds of the Association shall maintain a policy of
fidelity insurance providing coverage not less than that required of the Association, which
bond or insurance policy names the Association as an additional obligee.
(d) Hazard Insurance Carrier. Each policy of hazard insurance obtained
pursuant hereto shall be obtained from an insurance company authorized to write such
insurance in the State of Idaho which has a “B” or better general policyholder’s rating or a
“6” or better financial performance index rating in Best’s Insurance Reports, an “A” or
better general policyholder’s rating and a financial size category of “VIII” or better in
Best’s Insurance Reports-international edition, a “BBBQ” qualified solvency ratio or a
“BBB” or better claims-paying ability rating in Standard and Poor’s Insurer Solvency
Review, or a “BBB” or better claims-paying ability rating in Standard and Poor’s
International Confidential Rating Service. Insurance issued by a carrier that does not meet
the foregoing rating requirements will be acceptable if the carrier is covered by reinsurance
with a company that meets either one of the A.M. Best general policyholder’s ratings or
one of the Standard and Poor’s claims-paying ability ratings mentioned above.
(e) Other Association Insurance. In addition, the Board may purchase and
maintain contractual liability insurance, trustees’ and officers’ liability insurance, and such
other insurance as the Board may determine.
(f) Insurance Representative: Power of Attorney. There may be named, under
any policy obtained by the Association, as an insured on behalf of the Association, its
authorized representative, including any trustee with whom the Association may enter into
any insurance trust agreement, or any successor to such trustee, who shall have exclusive
authority to negotiate losses under any such policy. Each Owner, by acceptance of a deed
to a Unit, irrevocably appoints the Association or such designated representative, or such
successor, as attorney-in-fact for the purpose of purchasing and maintaining such
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 accompli sh such purpose. The
Association, or such designated representative, or such successor, shall receive, hold, or
otherwise properly dispose of any proceeds of insurance, in trust, for the Owners, as their
interests may appear. This power is for the benefit of each and every Owner, the
Association, and the Project, and runs with the land, and is coupled with an interest.
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(g) Owners’ Insurance. Any Owner may carry such insurance in addition to
that provided by the Association pursuant hereto as that Owner may determine, subject to
the provisions hereof, and provided that no Owner may at any time purchase individual
policies of insurance against loss by fire or other casualty covered by the insurance carried
pursuant hereto by the Association which diminishes the Association’s hazard insurance.
In the event any Owner violates this provision, any diminution in insurance proceeds
resulting from the existence of such other insurance shall be chargeable to the Owner who
acquired such other insurance, who shall be liable to the Association to the extent of any
diminution and/or loss of proceeds. Without limiting the foregoing, an Owner may obtain
insurance against liability for events occurring within a Unit, losses with respect to personal
property and furnishings, and losses to improvements owned by the Owner, provided that,
if the Association obtains insurance for permanent improvements and built-in fixtures and
equipment, then the insurance obtained by the Owner with respect to improvements within
the Unit shall be limited to the type and nature of coverage commonly referred to as
“tenants” improvements and betterments. All such insurance separately carried shall
contain a waiver of subrogation rights by the carrier as to the Association, its officers and
directors, and all other Owners and occupants.
(h) Certificates of Insurance. An insurer that has issued an insurance policy
under this Article shall issue certificates or a memorandum of insurance to the Association
and, upon request, to any Owner, mortgagee or beneficiary under a deed of trust. Any
insurance obtained pursuant to this Section may not be canceled until thirty (30) days after
notice of the proposed cancellation has been mailed to the Association, each Owner, and
each mortgagee or beneficiary under deed of trust to whom certificates of insurance have
been issued.
(i) Worker’s Compensation and Employer’s Liability Insurance. The Board
shall acquire workmen’s compensation and employer’s liability insurance and all other
similar insurance in respect to employees of the Association in the amounts and in the
forms now or hereafter required by law.
(j) Directors and Officers Liability. The Association shall obtain and continue
in effect insurance for the protection of the directors and officers of the Association from
personal liability in the management of the Association’s affairs.
3.28 Destruction. Condemnation. and Obsolescence. The following provisions shall
apply with respect to the destruction, condemnation, or obsolescence of the Project.
(a) Definitions. Each of the following terms shall have the meaning indicated.
(1) “Substantial Destruction” shall exist whenever, as a result of any
damage or destruction to the Project or any part thereof, the excess of the estimated
cost of restoration over the funds available is twenty five percent (25%) or more of
the estimated restored value of the Project.
(2) “Partial Destruction” shall mean any other damage or destruction to
the Project or any part thereof.
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(3) “Substantial Condemnation” shall exist whenever a complete taking
of the Project or a taking of part of the Project has occurred under eminent domain
or by grant or conveyance in lieu of condemnation, and the excess of the estimated
cost of restoration over the funds available is twenty five percent (25%) or more of
the estimated restored value of the Project.
(4) “Partial Condemnation” shall mean any other such taking by
eminent domain or grant or conveyance in lieu thereof.
(5) “Substantial Obsolescence” shall exist whenever the Project or any
part thereof has reached such a state of obsolescence or disrepair that the excess of
the estimated cost of restoration over the funds available is twenty five percent
(25%) or more of the estimated restored value of the Project.
(6) “Partial Obsolescence” shall mean any state of obsolescence or
disrepair which does not constitute Substantial Obsolescence.
(7) “Restored Value” shall mean the fair market value of the Project
after restoration as determined by an MAI or other qualified appraisal.
(8) “Estimated Cost of Restoration” shall mean the estimated costs of
restoring the Project to its former condition.
(9) “Available Funds” shall mean any proceeds of insurance,
condemnation awards, payment in lieu of condemnation, and any uncommitted
funds of the Association. Available Funds shall not include that portion of insurance
proceeds legally required to be paid to any party other than the Association,
including a Mortgagee, or that portion of any condemnation award or payment in
lieu of condemnation payable to the Owner or Mortgagee for the condemnation or
taking of the Unit in which they are interested.
(b) Determination by Board of Directors. Upon the occurrence of any damage
or destruction to the Project or any part thereof, or upon a complete or partial taking of the
Project under eminent domain or by grant or conveyance in lieu thereof, the Board of
Directors shall make a determination as to whether the excess of Estimated Costs of
Restoration over Available Funds is twenty five percent (25%) or more of the estimated
Restored Value of the Project. In addition, the Board of Directors shall, from time to time,
review the condition of the Project to determine whether Substantial Obsolescence exists.
In making such determinations the Board of Directors may retain and rely upon one or
more qualified appraisers or other professionals.
(c) Restoration of the Project. Restoration of the Project shall be undertaken by
the Board of Directors promptly without a vote of the owners in the event of Partial
Destruction, Partial Condemnation, or Partial Obsolescence and shall also be undertaken
in the event of Substantial Destruction, Substantial Condemnation, or Substantial
Obsolescence unless the failure to make restoration is consented to by a vote of at least
67% of the Owners collectively and is further consented to by Eligible Mortgagees holding
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Mortgages on 51% of the Units which are then subject to Mortgages held by Eligible
Mortgagees.
(d) Notice of Destruction or Obsolescence. Within thirty (30) days after the
Board of Directors has determined that Substantial Destruction, Substantial Condemnation,
or Substantial Obsolescence exists, it shall send to each Owner and Eligible Mortgagee a
written description of the destruction, condemnation, or state of obsolescence involved,
shall take appropriate steps to ascertain the preferences of the Eligible Mortgagees
concerning restoration, and shall, with or without a meeting of the Owners (but in any event
in accordance with the applicable provisions of this Declaration), take appropriate steps to
determine the preferences of the Owners regarding restoration.
(e) Excess Insurance. If the insurance proceeds, condemnation awards, or
payments in lieu of condemnation actually received by the Association exceed the cost of
Restoration when Restoration is undertaken, then the excess funds shall be placed in the
capital improvement reserve account and retained by and for the benefit of the Association.
This covenant is also for the benefit of the Association and any Mortgagee, and, therefore,
may also be enforced by them. Payment to any Owner whose Unit is the subject of a
Mortgage shall be made jointly to such Owner and the interested Mortgagee.
(f) Inadequate Insurance. In the event the cost of restoration exceeds Available
Funds, all of the Units shall be assessed equally for the deficiency.
(g) Sale of Project. Unless restoration is accomplished as set forth above, the
Project shall be sold in the event of Substantial Destruction, Substantial Condemnation, or
Substantial Obsolescence. In the event of such sale, ownership under this Declaration and
the Plat shall terminate, and the proceeds of sale and any Available Funds shall be
distributed by the Board of Directors to the Owners of all of the Units equally. Payment to
any Owner whose Unit is then the subject of a Mortgage shall be made jointly to such
Owner and the interested Mortgagee.
(h) Settlement Proceeds. The award in any condemnation proceeding and the
proceeds of any settlement related thereto shall be payable to the Association for the use
and benefit of the Owners and their Mortgagees as their interests may appear.
(i) Restoration Power. The Board of Directors, as attorney-in-fact for each
Owner, shall have and is hereby granted, full power and authority to restore or to sell the
Project and each Unit therein whenever restoration or sale, as the case may be, is
undertaken as hereinabove provided.
(j) Right of Entry. Such authority shall include the right and power to enter into
any contracts, deeds or other instruments which may be necessary or appropriate for
restoration or sale, as the case may be.
3.29 Consent in Lieu of Vote. In any case in which this Declaration requires the vote of
an Owner for authorization or approval of an act or a transaction, such requirement may be fully
satisfied by obtaining, with or without a meeting, consents in writing to such transaction from
Owners who collectively hold the required percentages, subject to the following conditions:
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(a) Ninety-Day Limit. All necessary consents must be obtained prior to the
expiration of ninety (90) days from the time the first written consent is obtained.
(b) Changes in Owners. Any change in ownership of a Unit which occurs after
consent has been obtained from the Owner having an interest therein shall not be
considered or taken into account for any purposes.
3.30 Mortgagee Protection. The lien or claim against a Unit for unpaid Assessments
levied by the Board of Directors or by the Association pursuant to this Declaration shall be
subordinate to any Mortgage recorded on or before the date such Assessments become due,
subject to the following:
(a) Effects of Voluntary and Involuntary Sale. The lien or claim against a Unit
for such unpaid Assessments shall not be affected by any sale or transfer of such Unit,
except that a sale or transfer pursuant to a foreclosure of the Mortgage affecting such Unit
or the exercise of a power of sale available thereunder shall extinguish any debt payable
prior to such sale or transfer. Nevertheless, any such unpaid Assessments which are
extinguished in accordance with the foreclosure or power of sale shall not relieve the
purchaser or transferee of such Unit from liability for, nor such Unit from the lien of any
Assessments becoming due thereafter.
(b) Books and Records Available for Inspection. The Board of Directors or the
Association shall make available to the Owners, to Mortgagees, and lenders, and to holders,
insurers, or guarantors of any mortgage, current copies of the Declaration, Bylaws, Articles
of Incorporation, and administrative rules and regulations concerning the Project, as well
as the books, records, and financial statements of the Board of Directors and the
Association. The term “available,” as used in the Paragraph, shall mean available for
reasonable inspection upon request during normal business hours or under other reasonable
circumstances. The Association shall have the right to recover its photocopying and service
charges incurred in making the inspection and photocopying available.
(c) Right to Financial Statement. The holder, insurer or guarantor of any
Mortgage shall be entitled, upon written request, to a financial statement for the
immediately preceding fiscal year. Any financial statement requested pursuant hereto shall
be furnished to the requesting party within a reasonable time following such request.
(d) Management Contracts. Any agreement for professional management of the
Project, and any contract for goods or services, or any lease which is entered into by the
Board of Directors or the Association shall provide or be deemed to provide hereby that
either party may terminate the contract with or without cause upon at least thirty (30) days
prior written notice to the other party thereto.
(e) Eligible Mortgagee Designation. Upon written request to the Board of
Directors or the Association by the holder, insurer, or guarantor of a Mortgage (which
request identifies the name and address of such holder, insurer or guarantor and the Unit
Number or address of the property encumbered by the Mortgage held or insured by such
holder, insurer, or guarantor), such holder, insurer, or guarantor shall be deemed thereafter
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to be an “Eligible Mortgagee” or “Eligible Insurer,” as the case may be, shall be included
on the appropriate lists maintained by the Association, and shall be entitled to t imely
written notice of any of the following:
(1) Condemnation Loss or Award. Any condemnation loss or any
casualty loss which affects a material portion of the Project or any Unit on which
there is a Mortgage held, insured, or guaranteed by such Eligible Mortgagee or
Eligible Insurer or guarantor.
(2) Delinquency. Any delinquency in the payment of Assessments
owed by an Owner of a Unit subject to a Mortgage held, insured or guaranteed for
such Eligible Mortgagee or Eligible Insurer or guarantor, which delinquency
remains uncured for a period of sixty (60) days.
(3) Lapse of Insurance. Any lapse, cancellation, or material
modification of any insurance policy or fidelity bond maintained by the Board of
Directors or the Association.
(4) Consent Required. Any proposed action which would require the
consent of a specified percentage of Eligible Mortgagees.
(f) No Right of First Refusal. The right of an Owner to sell, transfer, or
otherwise convey his Unit shall not be subject to any right of first refusal or similar
restriction.
3.31 Amendment.
(a) By Owners. Except as provided elsewhere in this Declaration, the
affirmative vote of at least 65% of the Owners shall be required and shall be sufficient to
amend the Declaration. Any amendment so authorized shall be accomplished through the
recordation of an instrument executed by the Association. In such instrument the
Association shall certify that the vote required by this Section for amendment has occurred,
and, if approval of a specified percentage of Eligible Mortgagees is required for such
amendment, that such approval has been obtained.
(b) By Declarant. Until the expiration of the Class B Control Period Declarant
may unilaterally amend this Declaration or the Plat for any purpose that Declarant deems
to be in the best interest of the Project.
3.32 Notice and Hearing. If an Owner or resident is charged with a material violation of
the Project Documents, then:
(a) Notice. Written notice specifying the nature of the violation (and providing
any other appropriate information) and stating the time, date and place that the Member
will have an opportunity to be heard by the Board of Directors shall be given to the Member
at least fifteen (15) days prior to the date set for the hearing and may be delivered either
personally or by mail. If delivery is made by mail, it shall be deemed to have been delivered
seventy-two (72) hours after it has been deposited in the United States mail, first class
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postage prepaid, addressed to the Member at the address given by the Member to the Board
of Directors for the purpose of service of notice or to the address of the Member’s Unit if
no other address has been provided. Any address may be changed from time to time by a
Member giving written notice to the Board of Directors.
(b) Costs and Assessments. If the violation, or the failure to correct or remedy
a violation, results or may result in the expenditure of funds, the notice shall also state that
the Board of Directors may vote to assess the adverse party, levy a fine, or impose other
sanctions if the Board of Directors finds that a violation has occurred.
(c) Final Determination. After the hearing has taken place, the Board of
Directors shall (1) determine whether a violation has occurred and, if so, may impose a fine
or issue sanctions which shall become effective not less than five (5) days after the date of
the hearing; or (2) take such other action as may be appropriate. The determination of the
Board of Directors shall be final. However, nothing herein shall be construed to prevent
the Board of Directors from making any emergency repairs or taking any other emergency
action it deems necessary and subsequently providing notice and an opportunity for a
hearing.
3.33 Declarant’s Sales Program. Notwithstanding anything to the contrary set forth in
this Declaration, until the happening of the earlier to occur of the Events set forth in
Section 3.16(b), neither the Owners, the Association, the Board of Directors nor any Member
thereof shall interfere with the completion of improvements and sale of all remaining Units and
Units, and Declarant shall have the following rights in furtherance of any sales, promotions or
other activities designed to accomplish or facilitate the sale of all Units and Units owned by
Declarant:
(a) Sales Office and Model Units. Declarant shall have the right to maintain
one (1) or more sales offices and one (1) or more model Units or Units at any one time.
Such office and/or models may be one or more of the Units or Units owned by Declarant,
or one or more of any separate structures or facilities placed on the Property for the purpose
of aiding Declarant’s sales effort, or any combination of the foregoing;
(b) Promotional. Declarant shall have the right to maintain a reasonable number
of promotional, advertising and/or directional signs, banners, flags or similar devices at
any place or places on the Property.
(c) Common Areas Use. Declarant shall have the right to use the Common
Areas of the Project to facilitate sales.
(d) Relocation and Removal. Declarant shall have the right from time to time
to locate or relocate any of its sales offices, models, or signs, banners or similar devices,
but in connection with each such location or relocation shall observe the limitations
imposed by the preceding portion of this Section. Within a reasonable period of time after
the happening of the earlier to occur of the Events, Declarant shall have the right to remove
from the Project any signs, banners, flags or similar devices and any separate structure or
facility which was placed on the Property for the purpose of aiding Declarant’s sales effort.
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3.34 Limitation on Improvements by Association. Until the happening of the earlier to
occur of the Events set forth in Section 3.16(b), neither the Association nor the Board of Directors
shall, without the written consent of Declarant, make any Improvement to or alteration in any of
the Common Areas created or constructed by Declarant, other than such repairs, replacements, or
similar matters as may be necessary to properly maintain the Common Areas as originally created
or constructed by Declarant.
3.35 Declarant’s Rights Assignable. All of the rights of Declarant under this Document
may be assigned or transferred either by operation of law or through a voluntary conveyance,
transfer or assignment. Any mortgage covering all Units, Units or Buildings in the Project title to
which is vested in Declarant shall, at any given point in time and whether or not such mortgage
does so by its terms, automatically cover, encumber, and include all of the then unexercised or
then unused rights, powers, authority, privileges, protection and controls which are accorded to
Declarant (in its capacity as Declarant) herein.
3.36 Certain Provisions Applicable to Declarant. Notwithstanding any other provision
herein contained, for so long as Declarant continues to own any of the Units the following
provisions shall be deemed to be in full force and effect, none of which shall be construed so as
to relieve the Declarant from any obligations of an Owner to pay Assessments, except as herein
otherwise provided, as to each Unit owned by Declarant in accordance with the Declaration.
(a) Declarant specifically disclaims any intent to have made any warranty or
representation in connection with the Project or the Declaration except as specifically set
forth herein or in any agreement for sale of a Unit, and no person shall rely upon any
warranty or representation not so specifically made therein.
(b) No amendment may be made to the Declaration without the written consent
of Declarant so long as Declarant retains the ownership of one (1) or more Units; provided,
however, that the obligation to acquire said written consent of Declarant shall cease on the
happening of the earlier to occur of the Events.
3.37 Interpretation. To the extent Idaho law is consistent with the Project Documents,
such provisions shall supplement the terms hereof and are incorporated herein. The captions
which precede the Articles and Sections of the Project Documents are for convenience only and
shall in no way affect the manner in which any provision hereof is construed. Whenever the
context so requires, the singular shall include the plural, the plural shall include the singular, the
whole shall include any part thereof, and any gender shall include both other genders. The
unenforceability or invalidity of any portion of the Project Documents shall not affect the validity
or enforceability of the remainder hereof.
3.38 Covenants to Run with Land. This Declaration and all the provisions hereof shall
constitute covenants that run with the Land or equitable servitude, as the case may be, and shall
be binding upon and shall inure to the benefit of Association, all other signatories hereto, all
parties who hereafter acquire any interest in a Unit or in the Project, and their respective grantees,
transferees, heirs, devisees, personal representatives, successors, and assigns. Each Owner or
resident of a Unit shall comply with, and all interests in all Units shall be subject to, the terms of
the Project Documents and the provisions of any rules, regulations, agreements, instruments,
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supplements, amendments, and determinations contemplated by this Declaration. By acquiring
any interest in a Unit in the Project, the party acquiring such interest consents to, and agrees to be
bound by, each and every provision of the Project Documents.
3.39 Enforcement and Right to Recover Attorney’s Assessments. The Association, or
the Board of Directors may take action, at law or in equity, to enforce the terms, covenants or
conditions of the Project Documents. Should the Association, or the Board of Directors be
required to take action to enforce the Project Documents, or to pursue any remedy provided
hereunder or by applicable law, whether such remedy is pursued by filing suit or otherwise, they
may recover all Additional Charges, including reasonable attorneys’ fees, which may arise or
accrue.
3.40 Security. The Association may, but shall not be obligated to, maintain or support
any systems, programs or activities within the Project designed to make the Project safer than it
otherwise might be. Neither Declarant, the Association nor the Board of Directors shall in any
way be considered insurers or guarantors of security within the Project, nor shall they be held
liable for any loss or damage by reason of failure to provide adequate security or ineffectiveness
of security measures undertaken. All Owners and residents, as well as their Guests, where
applicable, acknowledge by taking occupancy of a Unit or entering the Project that neither
Declarant, the Association nor the Board of Directors represent or warrant that any security
measures undertaken will insure their safety, and further acknowledge that neither Declarant, the
Association nor the Board of Directors are insurers or guarantors of their safety, and they hereby
expressly assume all risks for loss or damage to their person or property, and they further
acknowledge that neither Declarant, the Association nor the Board of Directors have made any
representations or warranties, nor have they relied upon any representations or warranties,
expressed or implied, including any warranty of merchantability.
3.41 Agent for Service. The person to receive service of process for the Association
shall be the then current registered agent of the Association as shown on the records maintained
in the Office of the Idaho Secretary of State.
3.42 Effective Date. This Declaration, any amendment or supplement hereto, and any
amendment or supplement to the Plat shall take effect upon its being filed for record in the
Madison County Recorder’s Office, Madison County, Idaho.
EXECUTED the day and year first above written.
DECLARANT:
LEATHAM DEVELOPMENT LLC,
a Idaho limited liability company
By:
Title:
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STATE OF IDAHO )
: ss.
COUNTY OF _____________ )
The foregoing instrument was acknowledged before me this ____ day of ____________,
2021, by _________________________________________________________ in such person’s
capacity as the ___________________________________________________ of Leatham
Development LLC, a Idaho limited liability company.
NOTARY PUBLIC
Residing at:
My Commission Expires:
_________________________
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EXHIBIT “A”
LEGAL DESCRIPTION OF LAND
That certain real property located in Madison County, Idaho, more particularly described
as follows:
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EXHIBIT “B”
BYLAWS OF TETON RIVER FLATS CONDOMINIUMS OWNERS ASSOCIATION,
INC.
A IDAHO NONPROFIT CORPORATION
Pursuant to the provisions of the Idaho Nonprofit Corporation Act (the “Act”), the
following are the Bylaws of the Association, which is obligated to operate, manage and regulate
the Project. Unless otherwise defined below, the capitalized terms set forth in these Bylaws shall
have the same meanings ascribed to them in the Declaration of Covenants, Conditions and
Restrictions for Teton River Flats Condominiums (the “Declaration”).
ARTICLE 1
PLAN OF UNIT OWNERSHIP AND INCORPORATION
1.1 Submission. These Bylaws are referred to and incorporated by reference in the
Declaration. The Project is located in Madison County, State of Idaho. These Bylaws shall govern
the administration of the Project and the Association.
1.2 Organizational Form. If the Association is incorporated, then these Bylaws shall
also function as the bylaws of the corporation.
1.3 Bylaws Applicability. All present and future Owners, residents, occupants, tenants,
renters, lessees, and their guests, licenses, invitees, servants, agents or employees, and any other
person or persons who shall be permitted entrance to the Project shall be subject to and shall abide
by these Bylaws.
ARTICLE 2
ASSOCIATION
2.1 Composition. The Association is a mandatory association consisting of all Owners
of Units or Units within Teton River Flats Condominiums.
2.2 Voting. Each Unit shall have one (1) vote. Multiple Owners must elect a
representative to cast their vote. A vote cast, without objection, by an apparent representative of
multiple owners shall be binding upon the parties. Organizational Owners may vote by means of
an authorized agent.
2.3 Place of Meeting. Meetings of the Association shall be held at the principal office
of the Association or at such other suitable place as may be designated by the Board of Directors
from time to time and stated in the notice of meeting.
2.4 Annual Meeting. Unless otherwise designated by the Board of Directors, the annual
meeting of the Association shall be held at 7:00 p.m. on the first Tuesday of October of each year,
or at such other suitable date as may be designated by the Board of Directors from time to time.
When such day is a legal holiday, the meeting shall occur on the first business day thereafter. The
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place of meeting shall be the principal office of the Association unless otherwise specified in the
notice of meeting.
2.5 Special Meetings. The President of the Association, or a Majority of the members
of the Board of Directors, may call a special meeting of the Association, or if the President of the
Association is so directed by resolution of the Board of Directors or upon receipt of a peti tion
signed and presented to the Secretary of the Board of Directors by at least thirty five percent (35%)
of the members of the Association. The notice of any special meeting shall state the date, time and
place of such meeting and the purpose thereof. No business shall be transacted at a special meeting
except as stated in the notice.
2.6 Quorum. The presence in person or by proxy of twenty five percent (25%) of the
Owners entitled to cast a vote shall constitute a quorum for the transaction of business at any
Owners meeting.
(a) Quorum Not Present. If a quorum is not present at any Owners meeting,
whether regular or special, the meeting may be adjourned and rescheduled for a time no earlier
than 48 hours and no later than 30 days, after the time set for the original meeting.
(b) Quorum at Rescheduled Meeting. Those Owners present at the rescheduled
meeting and entitled to vote shall constitute a quorum at the rescheduled meeting, regardless of
the number of Owners present at the rescheduled meeting.
(c) Percentage Approval Requirement. Notwithstanding the foregoing
provisions of this section, however, in any case in which the Declaration requires the affirmative
vote of a certain percentage of Owners for authorization or approval of a matter, their consent, in
person, by proxy or in writing is required for authorization or approval of the item, regardless of
the quorum requirements.
2.7 Notice of Meeting. It shall be the duty of the Secretary to hand deliver or mail, by
regular U.S. mail postage prepaid, a notice of: (a) each annual meeting of the Owners not less than
ten (10) and not more than thirty (30) days in advance of such meeting; and (b) each special
meeting of the Owners. The notice shall be delivered at least three (3) days and not more than
twenty (20) days in advance of such meeting, stating the purpose thereof as well as the time and
place where it is to be held, to each Owner of record, at the address of his respective Unit or such
other address as each Owner may have designated by notice in writing to the Secret ary. The
mailing of a notice of meeting in the manner provided in this Section shall be considered service
of notice.
2.8 Voting Requirements. An Owner shall be deemed to be in “good standing” and
“entitled to vote” at any annual meeting or at any special meeting of the Association, if, and only
if, he shall be in full compliance with all of the terms, covenants, and conditions of the Project
Documents, and shall have fully paid current all Assessments and/or Additional Charges due.
2.9 Proxies. The votes appertaining to any Unit may be cast pursuant to a proxy or
proxies fully executed by or on behalf of the Owner, or in cases where the Owner is more than one
person, by or on behalf of all such persons. No such proxy shall be revocable except by actual
written notice to the person presiding over the meeting, by the Owner or Owners that it be revoked.
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Any proxy shall be void if it is not dated, if it purports to be revocable without notice, or if it is not
signed by the Owner or Owners as the case may be.
(a) Executive Session. The Board of Directors may, with approval of a majority
of a quorum, adjourn a meeting and reconvene in an executive session to discuss and vote upon
private, confidential, sensitive or personnel matters, litigation, and orders of business of a similar
nature. The nature of any and all business to be considered in an executive session shall first be
announced in open session.
(b) Action Without a Formal Meeting. Any action to be taken at a meeting of
the Board of Directors may be taken without a meeting, if a consent in writing, setting forth the
action so taken, shall be signed by all members of the Board of Directors.
ARTICLE 3
BOARD OF DIRECTORS
3.1 Powers and Duties. The affairs and business of the Association shall be managed
by the Board of Directors in accordance with the Declaration. The Board of Directors shall have
all of the powers and duties necessary for the administration of the affairs of the Association in
accordance with the provisions of the Declaration and may do all such acts and things appropriate
and necessary to operate, manage, maintain, control and regulate the Project. The Board of
Directors shall have the power from time to time to adopt any rules and regulations deemed proper
for the exercise of its management powers. The Board of Directors may delegate its authority to a
manager or managers.
3.2 Composition of Board of Directors. The Board of Directors shall be composed of
at least three (3) but no more than seven (7) members. Only individual Owners or officers or agents
of organizational Owners shall be eligible for Board of Directors membership. The Board of
Directors may engage the services of a manager or managing agent.
3.3 Election and Terms of Office of the Board of Directors. The election and terms of
the Board of Directors shall be carried out in accordance with the provisions of the Declaration.
The initial Board shall be composed of three (3) directors appointed by Declarant, which initial
Board shall be controlled by Declarant until the expiration of the Class B Control Period. At the
first meeting after the expiration of the Class B Control Period, three members of the Board of
Directors shall be elected by the Owners. Two members of the Board of Directors shall be elected
for two year terms and one member of the Board of Directors shall be elected for a one year term.
Thereafter, all members of the Board of Directors shall be elected for two year terms. At the
expiration of the member’s term, a successor shall be elected. The Board shall have the right and
obligation to establish staggered terms of the newly elected directors.
3.4 Initial Meeting. The first meeting of the members of the Board of Directors shall
be immediately following the annual meeting of the Association, or at such other time and place
designated by the Board of Directors.
3.5 Regular Meetings. Regular meetings of the Board of Directors shall be held from
time to time and at such time and place as shall be determined by a Majority of the members of
the Board of Directors.
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3.6 Special Meetings. Special meetings of the Board of Directors may be called by the
President, Vice-President or a Majority of the members on at least forty-eight (48) hours prior
notice to each member. Such notice shall be given personally, by regular U.S. mail postage prepaid,
or by telephone, and such notice shall state the time, place and purpose of the meeting. Any
meeting attended by all members of the Board of Directors shall be valid for any and all purposes.
3.7 Waiver of Notice. Before or at any meeting of the Board of Directors, any member
may, in writing, waive notice of such meeting and such waiver shall be deemed equivalent to the
giving of such notice. Attendance by a member at any meeting of the Board of Directors shall
constitute a waiver of notice. If all the members are present at any me eting of the Board of
Directors, no notice shall be required, and any business may be transacted at such meeting.
3.8 Board of Director’s Quorum. At all meetings of the Board of Directors, a Majority
of the members then in office shall constitute a quorum for the transaction of business, and the acts
of the Majority of all the Board of Directors members present at a meeting at which a quorum is
present shall be deemed to be the acts of the Board of Directors. If, at any meeting of the Board of
Directors, there is less than a quorum present, the Majority of those present may adjourn the
meeting from time to time but for no longer than two days. At any such rescheduled meeting, any
business which might have been transacted at the meeting as originally called may be transacted
without further notice.
3.9 Vacancies. Vacancies in the Board of Directors caused by any reason other than
removal of a member by a vote of the Association shall be filled by vote of the Majority of the
remaining members of the Board of Directors at a special meeting of the Board of Directors held
for that purpose promptly after the occurrence of any such vacancy, even though the total members
remaining may constitute less than a quorum of the Board of Directors; and each person so elected
shall be a member for the remainder of the term of the member so replaced and until a successor
is elected at the next annual meeting of the Association. A vacancy created by the removal of a
member by a vote of the Association shall be filled by the election and vote of the Association.
3.10 Removal of Board of Directors Member. A member may be removed with or
without cause, and his successor elected, at any duly called regular or special meeting of the
Association at which a quorum of the Association is present, by an affirmative vote of a Majority
of the members of the Association. Any member whose removal has been proposed by the Owners
shall be given at least thirty (30) days’ notice of the calling of the meeting and the purpose thereof
and an opportunity to be heard at the meeting. Any Board of Directors member who fails on three
successive occasions to attend Board of Directors meetings (whether regular or special) or who
has failed to attend at least twenty-five percent (25%) of all Board of Directors meetings (whether
regular or special) held during any twelve (12) month period shall automatically forfeit his seat. In
such cases, the remaining Board of Directors members shall elect a replacement to sit on the Board
of Directors until the next meeting of the Association.
3.11 Conduct of Meetings. The President shall preside over all meetings of the Board of
Directors, and the Secretary shall keep a Minute Book of the Board of Directors recording therein
all resolutions adopted by the Board of Directors and a record of all transactions and proceedings
occurring at such meetings.
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3.12 Report of Board of Directors. The Board of Directors shall present at each annual
meeting, and when called for by vote of the Association at any special meeting of the Association,
a full and clear statement of the business and condition of the Association.
ARTICLE 4
OFFICERS
4.1 Designation. The principal officers of the Association shall be a President, a Vice-
President, and a Secretary/Treasurer, all of whom shall be elected by the Board of Directo rs. The
Board of Directors may appoint assistant secretaries and such other officers as in its judgment may
be necessary. Officers shall be members of the Board of Directors which may engage the services
of a manager or managing agent that is an experienced property management company. Two (2)
or more offices may be held by the same person, except that the President shall not hold any other
office.
4.2 Election of Officers. The officers of the Association shall be elected annually by
the Board of Directors at the annual meeting of the Board of Directors and shall hold office at the
pleasure of the Board of Directors. Any vacancy in an office shall be filled by the Board of
Directors at a regular meeting or special meeting called for such purpose.
4.3 Removal of Officers. The officers shall hold office until their respective successors
are chosen and qualify in their stead. Any officer elected or appointed by the Board of Directors
may be removed, with or without cause, at any time by the affirmative vote of a majority of the
Board of Directors, and his successor may be elected at any regular meeting of the Board of
Directors, or at any special meeting of the Board of Directors called for such purposes. Provided,
however, if a member of the Board of Directors is removed as an officer, he shall continue to be a
member of the Board of Directors.
4.4 President. The President shall be the chief executive officer; he/she shall preside at
meetings of the Association and the Board of Directors and shall be an ex-official member of all
committees; he shall have general and active management of the business of the Board of Directors
and shall see that all orders and resolutions of the Board of Directors are carried into effect. He/She
shall have all of the general powers and duties which are usually vested in or incident to the use of
president of a stock corporation organized under the laws of the State of Idaho.
4.5 Vice-President. The Vice-President shall, in the absence or disability of the
President, perform the duties and exercise the powers of the President, and shall perform such
other duties as the Board of Directors or the President shall prescribe. If neither the President nor
the Vice-President is able to act, the Board of Directors shall appoint a member of the Board of
Directors to do so on an interim basis.
4.6 Secretary. The Secretary shall attend all meetings of the Board of Directors and all
meetings of the Association and record all votes and the minutes of all proceedings in a book to
be kept by him/her for that purpose and shall perform like duties for committees when required.
He/She shall give, or cause to be given, notices for all meetings of the Association and the Board
of Directors and shall perform such other duties as may be prescribed by the Board of Directors.
The Secretary shall compile and keep current at the principal office of the Association, a complete
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list of the Owners and their last known post office addresses. This list shall be open to inspection
by Owners and other persons lawfully entitled to inspect the same, at reasonable hours during
regular business days. The Secretary shall also keep current and retain custody of the Minute Book
of the Association, containing the minutes of all annual and special meetings of the Association
and all sessions of the Board of Directors including resolutions.
4.7 Treasurer. The Treasurer shall have custody of all funds and securities that are not
under the control of the Manager, and with the assistance of the Manager shall keep full and
accurate records of receipts and disbursements, shall prepare all required financial data, and shall
deposit all monies and other valuable effects in such federally insured depositories as may be
designated by the Board of Directors. He/She shall disburse funds as ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to the President and
members, at the regular meetings of the Board of Directors, or whenever they may require it, an
account of all his transactions as Treasurer and of the financial condition of the Project.
ARTICLE 5
FISCAL YEAR
The fiscal year of the Association shall be the calendar year consisting of the twelve (12)
month period commencing on January 1 of each year terminating on December 31 of the same
year. The fiscal year herein established shall be subject to change by the Board of Directors should
it be deemed advisable or in the best interests of the Association.
ARTICLE 6
AMENDMENT TO BYLAWS
6.1 Amendment.
(a) By the Board. The Board may amend the Bylaws at any time to add, change,
or delete a provision, unless:
(i) this Section or the Articles of Incorporation or Bylaws:
(A) reserve the power exclusively to the Members in whole or
part; or
(B) otherwise prohibit the Board from amending the Bylaws to
add, change, or delete a provision; or
(ii) it would result in a change of the rights, privileges, preferences,
restrictions, or conditions of a membership class as to voting, dissolution,
redemption, or transfer by changing the rights, privileges, preferences, restrictions,
or conditions of another class.
(b) By the Members.
(i) Unless otherwise provided by the Bylaws, the Members may amend
the Bylaws even though the Bylaws may also be amended by the Board.
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(ii) Amendments to the Bylaws by Members shall be made in
accordance with Section 30-30-703 Idaho Code as if each reference in Section 30-
30-703, as amended or supplemented, to the Article of Incorporation was a
reference to the Bylaws.
6.2 Recording. An amendment to these Bylaws shall become effective immediately
upon recordation in the Office of the Recorder of Madison County, Idaho.
ARTICLE 7
NOTICE
7.1 Fair and Reasonable Notice. Notice given in accordance with the provisions of the
Act shall be considered fair and reasonable notice. The Association may give notice by text
message, e-mail, the Association website, or other electronic notice; provided, however an Owner
may by making a written demand to the Association requiring written notice. If such written
demand is made, then all notices, demands, bills, statements, or other communications provided
for or required under these Bylaws shall be in writing and shall be deemed to have been duly given
if delivered personally or sent by regular U.S. Mail postage prepaid, a) if to an owner, at the address
of his Unit and at such other address as the Owner may have designated by notice in writing to the
Secretary; or b) if to the Board of Directors or the Manager, at the principal office of the Manager
or at such other address as shall be designated by notice in writing to the Owners pursuant to this
Section.
7.2 Waiver of Notice. Whenever any notice is required to be given by the Project
Documents, a waiver thereof, in writing, signed by the person or persons entitled to such notice,
whether signed before or after the time stated therein, shall be deemed equivalent thereto.
ARTICLE 8
COMPLIANCE, CONFLICT, AND MISCELLANEOUS PROVISIONS
8.1 Compliance. These Bylaws are set forth in compliance with the requirements of the
Declaration.
8.2 Conflict. These Bylaws are subordinate to and subject to all provisions of the
Declaration. All of the terms hereof, except where clearly repugnant to the context, shall have the
same meaning as they are defined to have in the Declaration. In the event of any conflict between
these Bylaws and the Declaration, the provisions of the Declaration shall control.
8.3 Severability. If any provision of these Bylaws or any section, sentence, clause,
phrase, or word, or the application thereof in any circumstance is held invalid, the validity of the
remainder of these Bylaws shall not be affected thereby and, to this end, the provisions hereof are
declared to be severable.
8.4 Waiver. No restriction, condition, obligation, or provision of these Bylaws shall be
deemed to have been abrogated or waived by reason of any failure or failures to enforce the same.
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8.5 Captions. The captions contained in these Bylaws are for convenience only and are
not part of these Bylaws and are not intended in any way to limit or enlarge the terms and
provisions of these Bylaws.
8.6 Gender and Grammar. Whenever in these Bylaws the context so requires, the
singular number shall refer to the plural and the converse; and the use of any gender shall be
deemed to include both masculine and feminine.
8.7 Liability of Board of Directors Members. Neither the members of the Board of
Directors nor the officers of the Association shall be liable to any Owner, resident or person for
any damage, loss or liability arising out of or caused by their voluntary participation as a member
of the Board of Directors, including but not limited to any claims due to negligence, mistake of
judgment, or for any acts or omissions made in good faith. In addition, the Owners and residents,
by virtue of their taking title to or possession of a Unit, agree to indemnify, defend and hold
harmless the members of the Board of Directors and officers of the Association from and against
any and all claims arising out of or caused by their voluntary participation as a member of the
Board of Directors or officer of the Association to the extent any damage, loss or liability is not
covered by insurance, unless caused by gross negligence or willful neglect.
8.8 Attorneys’ Fees, Assessments and Costs. If an Owner or resident, or their families,
guests or invitees shall, at any time, violate the terms, covenants or conditions of these Bylaws,
and the Board of Directors shall be required to take action to enforce the same, regardless of
whether a lawsuit is commenced, the Owner or resident shall reimburse the Board of Directors for
all costs and expenses, including but not limited to reasonable attorneys’ fees. To secure payment
of any unpaid costs or Assessments, the Board of Directors shall have the right and power to file
a lien against the Unit owned or occupied, and may proceed to collect the same by judgment or
foreclosure. In the event of a breach or anticipated breach by an Owner or resident, or by their
family, guests or invitees, of any of the terms, covenants, or conditions of these Bylaws, the Board
of Directors shall have, in addition to any other remedies provided by law equity, the right to
injunctive relief and damages.
8.9 Persons Bound. All references herein to an Owner, resident, tenant, renter, lessee,
guest, or invitee shall be deemed to include their respective executors, administrators, employees,
representatives, successors and assigns, and the terms, covenants, and conditions herein contained
shall apply to and be binding upon them.
Dated this ____ day of January 2021.
TETON RIVER FLATS CONDOMINIUMS
OWNERS ASSOCIATION, INC.,
an Idaho nonprofit corporation
By:
Title: