HomeMy WebLinkAboutCC&Rs 3.10.22 - 22-00142 - University View - 649 S 2nd W - Condo PlatWHEN RECORDED, RETURN TO:
Parsons Behle & Latimer
Jon A. Stenquist, Esq.
350 Memorial Drive, Ste. 300
Idaho Falls, ID 83402
DECLARATION
OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
UNIVERSITY VIEW CONDOMINIUMS
ARTICLE I DEFINITIONS 2
ARTICLE II DESCRIPTION OF PROPERTY ESTABLISHMENT OF OWNERSHIP INTERESTS 2
2.1 Description of Land and Other Property 2
2.2 Description of Building. 2
2.3 Condominium Ownership – Division Into Units. 3
2.4 Conveyance of a Unit. 3
2.5 Severance From Residential Lounge and Appurtenant Easements. 3
2.6 Separation, Combination of Units. 4
2.7 Fractional Interest Ownership – Reservation Right. 4
2.8 Calculation of Percentage Ownership Interest. 5
ARTICLE III INTERESTS, USE RIGHTS AND RESTRICTIONS 5
3.1 Residential Condominium Property – Interests and Use Rights. 5
3.2 Use Restrictions. 5
3.3 Additional Parcel Owner’s Rights. 8
3.4 Residential Association Easements. 12
3.5 Utility Easement to Unit Owners. 13
3.6 Easements for Encroachments. 13
3.7 Covenants Running With the Land. 14
3.8 Transfer of Interest. 14
3.9 Separate Mortgages. 14
3.10 Subordination and Partition of Tenancy-in-Common Attributes. 14
3.11 Protection of Interest. 15
3.12 Compliance with Laws. 16
3.13 No Increased Insurance. 16
3.14 Antennae and Exterior Appliances. 16
3.15 Domestic Animals. 16
3.16 Waterbeds and Aquariums. 17
3.17 Legal Description of a Unit. 17
3.18 Insurance. 17
ARTICLE IV THE RESIDENTIAL ASSOCIATION 17
4.1 Membership in Residential Association. 17
4.2 Transfer of Membership in the Residential Association. 17
4.3 Voting and Types of Membership in the Residential Association. 17
4.4 Board of Directors. 18
4.5 Period of Parcel Owner Control. 18
ARTICLE V MANAGEMENT 18
5.1 Allocation of Maintenance and Repair Obligations. 18
5.2 Specific Powers and Duties of the Residential Association. 19
5.3 Authority and Duty to Engage Residential Association Manager. 25
5.4 Limitation on Powers of the Residential Association Manager. 25
5.5 Limited Liability – Residential Association Manager and Residential Association. 26
5.6 Residential Association – Personal Liability, Indemnification. 26
ARTICLE VI RESIDENTIAL ASSESSMENTS AND PERSONAL CHARGES 26
6.1 Creation of Personal Obligations For Residential Assessments. 26
6.2 Purpose of Residential Assessments. 27
6.3 Limitation on Residential Association Assessment. 27
6.4 Reduction of Residential Association Budget. 27
6.5 Residential Association Assessment. 27
6.6 Payment of Residential Association Assessment and Taxes. 28
6.7 Special Assessments. 29
6.8 Personal Charges. 29
6.9 Working Capital Contribution. 29
ARTICLE VII ENFORCEMENT OF RESTRICTIONS 30
7.1 In General. 30
7.2 Certain Specific Enforcement Powers. 31
7.3 Subordination to Certain Encumbrances. 32
7.4 Waiver of Homestead Exemption. 33
ARTICLE VIII RESIDENTIAL ASSOCIATION AS ATTORNEY-IN-FACT 33
8.1 Appointment. 33
8.2 General Authority. 33
ARTICLE IX DAMAGE, DESTRUCTION, OR CONDEMNATION 33
9.1 In General. 33
9.2 Taking of All of Personal Property of Residential Association. 34
9.3 Partial Taking of Personal Property of Residential Association. 34
9.4 Taking of Units. 35
9.5 No Limitation of Remedies. 35
9.6 Damage/Destruction of Apartment; Parcel Owner’s Right to Purchase; Casualty Purchase Right. 35
ARTICLE X PROTECTION OF MORTGAGEES 35
10.1 Conflict.. 35
10.2 Application of Residential Assessments. 35
10.3 Subordination of Residential Assessment Lien. 35
10.4 Limitation of Enforcement Against Mortgagees. 36
10.5 Notice by Mortgagees. 36
10.6 Notice. 36
ARTICLE XI INSURANCE 36
11.1 Residential Association. 36
11.2 Unit Owners. 38
ARTICLE XII INTENTIONALLY OMITTED 38
ARTICLE XIII BINDING ARBITRATION FOR ENFORCEMENT OF RESIDENTIAL ASSOCIATION GOVERNING INSTRUMENTS 39
13.1 OPT-OUT RIGHT. 39
13.2 Arbitration Terms Defined. 39
13.3 Claims by Bound Parties. 39
13.4 Arbitration Fees. 39
13.5 Governing Law. 39
13.6 Appeal of Arbitrator’s Decision. 40
13.7 Binding Individual Arbitration. 40
13.8 Severability. 40
13.9 Notice of Claim; Right to Address. 40
13.10 Residential Declaration Arbitration. 41
ARTICLE XIV ALLEGED DEFECTS 41
14.1 Intention. 41
14.2 Parcel Owner’s Right to Cure. 41
14.3 Notice to Parcel Owner. 41
14.4 Right to Enter; Inspect, Cure and/or Replace. 41
14.5 Legal Actions. 42
14.6 No Additional Obligations; Irrevocability and Waiver of Rights. 42
ARTICLE XV MISCELLANEOUS PROVISIONS 42
15.1 Amendment. 42
15.2 Termination. 44
15.3 Notices. 45
15.4 Notification of Sale of Unit. 46
15.5 Severability and the Rule Against Perpetuities. 46
15.6 Successors. 47
15.7 Violation or Nuisance. 47
15.8 Violation of Law. 47
15.9 Interpretation. 47
15.10 Construction; Waiver. 47
15.11 Termination. 47
15.12 Indemnity. 47
15.13 Constructive Notice and Acceptance; Incorporation of Residential Declaration into Deeds. 48
15.14 Cumulative Remedies. 48
15.15 Attorneys’ Fees and Costs. 48
15.16 No Public Dedication. 48
15.17 Governing Law. 48
15.18 Provisions Run With Land. 49
15.19 Conflict of Provisions. 49
15.20 Force Majeure. 49
15.21 Acknowledgements. 49
15.22 Releases. 55
15.23 Parcel Owner and Apartment Operator Release. 55
15.24 Agent for Service of Process. 56
15.25 Third-Party Beneficiaries. 56
15.26 Delegation of Parcel Owner Rights and Responsibilities. 56
5.1 Allocation of Maintenance and Repair Obligations. 18
5.2 Specific Powers and Duties of the Residential Association. 19
5.3 Authority and Duty to Engage Residential Association Manager. 25
5.4 Limitation on Powers of the Residential Association Manager. 25
5.5 Limited Liability – Residential Association Manager and Residential Association. 26
5.6 Residential Association – Personal Liability, Indemnification. 26
ARTICLE VI RESIDENTIAL ASSESSMENTS AND PERSONAL CHARGES 26
6.1 Creation of Personal Obligations For Residential Assessments. 26
6.2 Purpose of Residential Assessments. 27
6.3 Limitation on Residential Association Assessment. 27
6.4 Reduction of Residential Association Budget. 27
6.5 Residential Association Assessment. 27
6.6 Payment of Residential Association Assessment and Taxes. 28
6.7 Special Assessments. 29
6.8 Personal Charges. 29
6.9 Working Capital Contribution. 29
ARTICLE VII ENFORCEMENT OF RESTRICTIONS 30
7.1 In General. 30
7.2 Certain Specific Enforcement Powers. 31
7.3 Subordination to Certain Encumbrances. 32
7.4 Waiver of Homestead Exemption. 33
ARTICLE VIII RESIDENTIAL ASSOCIATION AS ATTORNEY-IN-FACT 33
8.1 Appointment. 33
8.2 General Authority. 33
ARTICLE IX DAMAGE, DESTRUCTION, OR CONDEMNATION 33
9.1 In General. 33
9.2 Taking of All of Personal Property of Residential Association. 34
9.3 Partial Taking of Personal Property of Residential Association. 34
9.4 Taking of Units. 35
9.5 No Limitation of Remedies. 35
9.6 Damage/Destruction of Apartment; Parcel Owner’s Right to Purchase; Casualty Purchase Right. 35
ARTICLE X PROTECTION OF MORTGAGEES 35
10.1 Conflict.. 35
10.2 Application of Residential Assessments. 35
10.3 Subordination of Residential Assessment Lien. 35
10.4 Limitation of Enforcement Against Mortgagees. 36
10.5 Notice by Mortgagees. 36
10.6 Notice. 36
ARTICLE XI INSURANCE 36
11.1 Residential Association. 36
11.2 Unit Owners. 38
ARTICLE XII INTENTIONALLY OMITTED 38
ARTICLE XIII BINDING ARBITRATION FOR ENFORCEMENT OF RESIDENTIAL ASSOCIATION GOVERNING INSTRUMENTS 39
13.1 OPT-OUT RIGHT. 39
13.2 Arbitration Terms Defined. 39
13.3 Claims by Bound Parties. 39
13.4 Arbitration Fees. 39
13.5 Governing Law. 39
13.6 Appeal of Arbitrator’s Decision. 40
13.7 Binding Individual Arbitration. 40
13.8 Severability. 40
13.9 Notice of Claim; Right to Address. 40
13.10 Residential Declaration Arbitration. 41
ARTICLE XIV ALLEGED DEFECTS 41
14.1 Intention. 41
14.2 Parcel Owner’s Right to Cure. 41
14.3 Notice to Parcel Owner. 41
14.4 Right to Enter; Inspect, Cure and/or Replace. 41
14.5 Legal Actions. 42
14.6 No Additional Obligations; Irrevocability and Waiver of Rights. 42
ARTICLE XV MISCELLANEOUS PROVISIONS 42
15.1 Amendment. 42
15.2 Termination. 44
15.3 Notices. 45
15.4 Notification of Sale of Unit. 46
15.5 Severability and the Rule Against Perpetuities. 46
15.6 Successors. 47
15.7 Violation or Nuisance. 47
15.8 Violation of Law. 47
ARTICLE I DEFINITIONS 2
ARTICLE II DESCRIPTION OF PROPERTY ESTABLISHMENT OF OWNERSHIP INTERESTS 2
2.1 Description of Land and Other Property 2
2.2 Description of Building. 2
2.3 Condominium Ownership – Division Into Units. 3
2.4 Conveyance of a Unit. 3
2.5 Severance From Residential Lounge and Appurtenant Easements. 3
2.6 Separation, Combination of Units. 4
2.7 Fractional Interest Ownership – Reservation Right. 4
2.8 Calculation of Percentage Ownership Interest. 5
ARTICLE III INTERESTS, USE RIGHTS AND RESTRICTIONS 5
3.1 Residential Condominium Property – Interests and Use Rights. 5
3.2 Use Restrictions. 5
3.3 Additional Parcel Owner’s Rights. 8
3.4 Residential Association Easements. 12
3.5 Utility Easement to Unit Owners. 13
3.6 Easements for Encroachments. 13
3.7 Covenants Running With the Land. 14
3.8 Transfer of Interest. 14
3.9 Separate Mortgages. 14
3.10 Subordination and Partition of Tenancy-in-Common Attributes. 14
3.11 Protection of Interest. 15
3.12 Compliance with Laws. 16
3.13 No Increased Insurance. 16
3.14 Antennae and Exterior Appliances. 16
3.15 Domestic Animals. 16
3.16 Waterbeds and Aquariums. 17
3.17 Legal Description of a Unit. 17
3.18 Insurance. 17
ARTICLE IV THE RESIDENTIAL ASSOCIATION 17
4.1 Membership in Residential Association. 17
4.2 Transfer of Membership in the Residential Association. 17
4.3 Voting and Types of Membership in the Residential Association. 17
4.4 Board of Directors. 18
4.5 Period of Parcel Owner Control. 18
ARTICLE V MANAGEMENT 18
5.1 Allocation of Maintenance and Repair Obligations. 18
5.2 Specific Powers and Duties of the Residential Association. 19
5.3 Authority and Duty to Engage Residential Association Manager. 25
5.4 Limitation on Powers of the Residential Association Manager. 25
5.5 Limited Liability – Residential Association Manager and Residential Association. 26
5.6 Residential Association – Personal Liability, Indemnification. 26
ARTICLE VI RESIDENTIAL ASSESSMENTS AND PERSONAL CHARGES 26
6.1 Creation of Personal Obligations For Residential Assessments. 26
6.2 Purpose of Residential Assessments. 27
6.3 Limitation on Residential Association Assessment. 27
6.4 Reduction of Residential Association Budget. 27
6.5 Residential Association Assessment. 27
6.6 Payment of Residential Association Assessment and Taxes. 28
6.7 Special Assessments. 29
6.8 Personal Charges. 29
6.9 Working Capital Contribution. 29
ARTICLE VII ENFORCEMENT OF RESTRICTIONS 30
7.1 In General. 30
7.2 Certain Specific Enforcement Powers. 31
7.3 Subordination to Certain Encumbrances. 32
7.4 Waiver of Homestead Exemption. 33
ARTICLE VIII RESIDENTIAL ASSOCIATION AS ATTORNEY-IN-FACT 33
8.1 Appointment. 33
8.2 General Authority. 33
ARTICLE IX DAMAGE, DESTRUCTION, OR CONDEMNATION 33
9.1 In General. 33
9.2 Taking of All of Personal Property of Residential Association. 34
9.3 Partial Taking of Personal Property of Residential Association. 34
9.4 Taking of Units. 35
9.5 No Limitation of Remedies. 35
9.6 Damage/Destruction of Apartment; Parcel Owner’s Right to Purchase; Casualty Purchase Right. 35
ARTICLE X PROTECTION OF MORTGAGEES 35
10.1 Conflict.. 35
10.2 Application of Residential Assessments. 35
10.3 Subordination of Residential Assessment Lien. 35
10.4 Limitation of Enforcement Against Mortgagees. 36
10.5 Notice by Mortgagees. 36
10.6 Notice. 36
ARTICLE XI INSURANCE 36
11.1 Residential Association. 36
11.2 Unit Owners. 38
ARTICLE XII INTENTIONALLY OMITTED 38
ARTICLE XIII BINDING ARBITRATION FOR ENFORCEMENT OF RESIDENTIAL ASSOCIATION GOVERNING INSTRUMENTS 39
13.1 OPT-OUT RIGHT. 39
13.2 Arbitration Terms Defined. 39
13.3 Claims by Bound Parties. 39
13.4 Arbitration Fees. 39
13.5 Governing Law. 39
13.6 Appeal of Arbitrator’s Decision. 40
13.7 Binding Individual Arbitration. 40
13.8 Severability. 40
13.9 Notice of Claim; Right to Address. 40
13.10 Residential Declaration Arbitration. 41
ARTICLE XIV ALLEGED DEFECTS 41
14.1 Intention. 41
14.2 Parcel Owner’s Right to Cure. 41
14.3 Notice to Parcel Owner. 41
14.4 Right to Enter; Inspect, Cure and/or Replace. 41
14.5 Legal Actions. 42
14.6 No Additional Obligations; Irrevocability and Waiver of Rights. 42
ARTICLE XV MISCELLANEOUS PROVISIONS 42
15.1 Amendment. 42
15.2 Termination. 44
15.3 Notices. 45
15.4 Notification of Sale of Unit. 46
15.5 Severability and the Rule Against Perpetuities. 46
15.6 Successors. 47
15.7 Violation or Nuisance. 47
15.8 Violation of Law. 47
15.9 Interpretation. 47
15.10 Construction; Waiver. 47
15.11 Termination. 47
15.12 Indemnity. 47
15.13 Constructive Notice and Acceptance; Incorporation of Residential Declaration into Deeds. 48
15.14 Cumulative Remedies. 48
15.15 Attorneys’ Fees and Costs. 48
15.16 No Public Dedication. 48
15.17 Governing Law. 48
15.18 Provisions Run With Land. 49
15.19 Conflict of Provisions. 49
15.20 Force Majeure. 49
15.21 Acknowledgements. 49
15.22 Releases. 55
15.23 Parcel Owner and Apartment Operator Release. 55
15.24 Agent for Service of Process. 56
15.25 Third-Party Beneficiaries. 56
15.26 Delegation of Parcel Owner Rights and Responsibilities. 56
EXHIBIT A LEGAL DESCRIPTION OF PROJECT PROPERTY A-1
EXHIBIT B SCHEDULE OF UNIT AREAS; PERCENTAGE OWNERSHIP INTERESTS B-1
EXHIBIT C MASTER DEFINITIONS C-1
EXHIBIT D ASSOCIATION BYLAWS D-1
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS FOR
UNIVERSITY VIEW CONDOMINIUMS
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR UNIVERSITY VIEW CONDOMINIUMS (this “Residential Declaration”) is made as of _______________, 2022, by University View Condo
Owner, LLC, a Delaware limited liability company (the “Declarant” or “Parcel Owner”).
RECITALS
A. The Parcel Owner is the owner of the Project Property located in the County and more particularly described on Exhibit A attached hereto. The Parcel Owner is converting the Project
Property from student housing to private residential condominiums referred to herein as the Residential Condominium Property.
D. By this Residential Declaration, it is the intention of Parcel Owner to establish a common scheme and plan for the use, enjoyment, repair, maintenance, restoration and improvement
of the Residential Condominiums, and the interests therein conveyed or reserved, and for the payment of taxes, assessments, insurance premiums and other expenses pertaining thereto.
Parcel Owner intends that the owners, mortgagees, occupants and all other persons hereafter acquiring any interest in the Residential Condominium Property, or any part thereof, shall
at all times enjoy the benefits of, and shall hold, sell, lease and convey their interests subject to the rights, easements, covenants, conditions, restrictions and obligations hereinafter
set forth, all of which are hereby declared to be in furtherance of a general plan to promote and protect the cooperative aspect of the Residential Condominium Property and are established
for the purpose of enhancing the value, desirability and attractiveness of the Residential Condominium Property. Parcel Owner intends that the Idaho Condominium Property Act, I.C.
§ 55-1501 et. seq. (“the Act”) shall apply to the Residential Condominium Property. In addition, in order to accomplish the object of creating unique Condominiums on the Project Property
and a condominium regime, and to protect and preserve the long-term viability and value of the Condominiums, it is necessary that Parcel Owner maintain a certain level of control over
the Residential Condominium Property that may be atypical to that found in a traditional condominium project. Accordingly, each Unit Owner, by acceptance of a deed to such Unit Owner’s
Unit, acknowledges and agrees that certain provisions contained in this Residential Declaration may vary from a traditional application of the requirements of the Act and each Unit
Owner hereby agrees to accept such variations and agrees not to challenge the enforceability of the Governing Instruments or the validity of the condominium regime established by this
Residential Declaration as a result of such variations.
NOW, THEREFORE, in furtherance of such intent, Parcel Owner hereby declares that the Residential Condominium Property shall be held, conveyed, hypothecated, mortgaged, encumbered, leased,
rented, used, occupied and improved subject to the following covenants, conditions and restrictions set forth in this Residential Declaration, as this Residential Declaration may be
amended from time-to-time, all of which covenants, conditions and restrictions are declared to be in furtherance of a plan established for the purpose of enhancing the value, desirability
and enjoyment of the Residential Condominium Property. All of the covenants,
conditions and restrictions contained herein shall constitute covenants running with the land and equitable servitudes and liens and shall be binding upon and for the benefit of Parcel
Owner and all parties having or acquiring an interest in the Residential Condominium Property therefrom including, but not limited to, the heirs, executors, administrators and assigns
of any such parties and all subsequent owners of such interest.
DEFINITIONS
Unless otherwise defined herein, all defined terms shall have the meaning set forth in the Master Definitions attached hereto as Exhibit C.
DESCRIPTION OF PROPERTY
ESTABLISHMENT OF OWNERSHIP INTERESTS
Description of Land and Other Property. The University View Condominiums project initially consists of one hundred fifty (152) Units as depicted in the Condominium Plat. These Units
and any personal property owned by the Residential Association consists of all of the property subject to this Residential Declaration.
Description of Building. All of the Units are located on the Project Property. The Residential Condominiums improvements consist of one hundred fifty-two (152) Units) in one (3) buildings
of a combination of four (4) and five (5) stories with outdoor parking. The Buildings are constructed of reinforced concrete foundation, steel and metal framing, wood, cement and brick
siding and membrane roofing materials. Because each Unit is an “airspace unit,” none of the infrastructure of the Buildings described in this Section is part of the University View
Condominiums project and is instead part of the Apartment, but each Unit is dependent upon such Buildings for, among other things, structural support. The overall University View Condominiums
project contains numerous other improvements typical of an Apartment, including (as of the date hereof) a yoga room, fitness center, aerobic room, piano room, clubhouse, landscaped
areas, parking areas, and Apartment operations areas; provided, however, that Parcel Owner reserves the right to change over time the materials, furnishings, services, recreational
areas, features and amenities described above in Parcel Owner’s sole discretion.
Condominium Ownership – Division Into Units. As of the recording of this Residential Declaration, the Residential Condominiums is hereby initially divided into one hundred fifty-two
(152) Units. Parcel Owner, in order to establish a plan of condominium ownership for the Residential Condominium Property, hereby divides the Residential Condominium Property into
the following elements with the ownership interests therein as set forth below:
Units. Each Unit Owner shall own a separate fee simple estate in a Unit;
Residential Lounge. Each Unit Owner owns an undivided Percentage Ownership Interest (as set forth in Exhibit B) in the Residential Lounge;
Conveyance of a Unit. Each of the following shall be included in any conveyance of a Unit:
Unit. The right to use and occupy such Unit in accordance with this Residential Declaration, as well as all other applicable Governing Instruments;
Residential Lounge. An undivided Percentage Ownership Interest (as set forth in Exhibit B) in the Residential Lounge. The Residential Lounge is intended to comprise the “common areas
and facilities;”
Condominium Easement Rights. Subject to the terms and conditions of this Residential Declaration, the right to use, in common with other Unit Owners, the non-exclusive Condominium Easement
Rights. Such Condominium Easement Rights cannot be altered without the written consent of Parcel Owner and the consent of at least two-thirds (2/3rds) of the voting power of the Unit
Owners; and
Severance from Residential Lounge and Appurtenant Easements. No Unit Owner shall be entitled to sever his or her Unit, or any portion thereof, from his or her undivided interest in
the Residential Lounge, Condominium Easement Rights, or from any easement interests appurtenant thereto or licenses granted thereto under this Residential Declaration.
Neither may such interests be severally sold, conveyed, leased, encumbered, hypothecated or otherwise dealt with, and any such attempt to do so in violation of this provision shall be
void and of no effect. The Parcel Owner and its successors, assigns and grantees and each Unit Owner covenant and agree that the Units and the corresponding undivided interest in the
Residential Lounge, Condominium Easement Rights, or any easement interests appurtenant thereto or licenses granted thereto under this Residential Declaration, shall not be separated
or separately conveyed, and: (a) each such undivided interest and any other easements appurtenant to a Unit shall be deemed to be conveyed or encumbered with such Unit even though the
description in the instrument of conveyance or encumbrance may refer only to title to such Unit; and (b) each such Unit shall be deemed to be conveyed or encumbered with each such undivided
interest in the Residential Lounge, Condominium Easement Rights, or any easement interests appurtenant thereto or licenses granted thereto under this Residential Declaration even though
the description in the instrument of conveyance or encumbrance may refer only to the title to the respective undivided interest.
Separation, Combination of Units. No Unit Owner may partition or separate a Unit or the legal rights comprising ownership of a Unit from any other part thereof, nor shall a Unit Owner
combine a Unit with another or any portion of another Unit. No Unit Owner shall convey, transfer, devise, bequeath or encumber anything other than a single, complete Unit. Every conveyance,
transfer, gift, devise, bequest, encumbrance or other disposition of a Unit or any part thereof shall be presumed to be a disposition of the entire Unit, together with all appurtenant
rights and interests created by law or by this Residential Declaration or any other Governing Instrument. Notwithstanding the foregoing, for as long as Parcel Owner owns a Unit, Parcel
Owner shall have the right to: (a) relocate the boundaries of and between two adjoining Units; (b) physically combine a part of or combination of parts of the space of one Unit with
a part of or combination of parts of the space within one or more adjoining Units; or (c) subdivide a Unit or part of a Unit
to create additional Units (in each case, provided that the affected Units are owned by Parcel Owner). Before exercising its rights herein, Parcel Owner must obtain all necessary approvals
from any governmental authority having jurisdiction over the Residential Condominium Property before exercising its rights herein. The cost and expense incurred for legal, architectural
and/or engineering fees and all other costs and expenses incurred by the Residential Association in connection with Parcel Owner’s exercise of rights under this Section 2.6 shall be
borne by Parcel Owner. Parcel Owner shall be permitted to execute and record any amendment to this Residential Declaration or the Condominium Plat, or both, effectuating the relocation
of boundaries of, combination or subdivision, or re-designation of Unit(s). If Parcel Owner requires, whether for title purposes, governmental approvals or otherwise, the Residential
Association Board shall ratify the action in connection with effectuating such relocation of boundaries, combination or subdivision, or re-designation of Unit(s), and take such necessary
actions in connection therewith if the requirements in this section have been satisfied. The rights reserved to Parcel Owner under this section shall not apply to a Unit after Parcel
Owner first conveys such Unit to an unaffiliated third-party purchaser.
Fractional Interest Ownership – Reservation Right. To the extent permitted under applicable law and subject to all necessary governmental approvals having been obtained, Parcel Owner,
for itself, its successors and assigns, expressly reserves the right to submit all or some of the Units or any other unit located on the Condominiums to a fractional, club, or other
shared ownership or use program and, in connection therewith, establish a fractional interest or timeshare regime and owners association, all of which shall be subject to all of the
terms and conditions herein. The right to submit a Unit or any other unit located on the Condominiums to any such plan of fractional or timeshare ownership shall extend only to Parcel
Owner, its successors or assigns as owner of the Apartment, and shall specifically and expressly not be available to Non-Parcel Owners or their successors or assigns, except with the
prior written consent of Parcel Owner, which consent may be withheld in the Parcel Owner’s sole discretion. Submission of a Unit or any other unit located on the Condominiums to such
a plan of fractional or timeshare ownership shall not be subject to the prior written consent of any Unit Owner, except to the extent a Unit to be so submitted is already owned by a
Non-Parcel Owner, or any Mortgagee, except the first Mortgagee of record of any such Unit to be submitted.
Calculation of Percentage Ownership Interest. The Percentage Ownership Interest appurtenant to each Unit is based upon the square footage of such Unit. The Percentage Ownership Interest
appurtenant to each Unit shall be determined by dividing the square footage of a Unit by the total number of square feet of all Units, as set forth in attached Exhibit B. Except as
otherwise provided in this Residential Declaration or the Act, the undivided interest appurtenant to each Unit shall have a permanent character and shall not be altered. The sum of
the Percentage Ownership Interests allocated to all Units shall at all times equal one hundred percent (100%). Parcel Owner is authorized to round the undivided interest of one or
more Units in order to cause the total to equal one hundred percent (100%).
INTERESTS, USE RIGHTS AND RESTRICTIONS
Residential Condominium Property – Interests and Use Rights. A Unit Owner has the exclusive right to use and occupy such Unit Owner’s Unit, and non-exclusive rights to use and
enjoy the Residential Lounge and the Condominium Easement Rights appurtenant to such Unit Owner’s Unit, all in accordance with this Residential Declaration and the Governing Instruments.
Use Restrictions.
Alterations, Additions and Improvements.
Subject to Sections 3.2.4 and 3.2.5, nothing herein shall prevent a Unit Owner from removing, altering or replacing any furniture located within his or her Unit, or from repainting,
wallpapering or similarly coating or refinishing the surfaces of the walls or the interior surfaces of the doors of his or her Unit. Except for those specific activities permitted above
in Section 3.2.1.1 and this Section 3.2.1.2, Unit Owners must obtain the written consent of the Parcel Owner prior to undertaking any alteration, addition, improvement or maintenance
of any Unit (including, but not limited to, load bearing or other walls and plumbing, other than finish plumbing fixtures) to the extent such alteration, addition, improvement or maintenance
will require a building permit from the City.
Sound Restriction. In the event that any Unit Owner desires to modify any portion of its Unit, including, without limitation, the floor coverings, no such modification may take place
without the written consent of the Parcel Owner. The Unit Owner must install a sound control underlayment system approved by the Parcel Owner. The installation of the foregoing insulation
materials shall be performed in a manner that provides proper mechanical isolation of the flooring materials from any rigid part of the building structure, whether of the concrete subfloor
(vertical transmission) or adjacent walls and fittings (horizontal transmission). Under no circumstances shall any Unit Owner modify, alter or impair the floor/ceiling assembly of
its Unit. Any Unit Owner desiring to install hard-surface flooring in its Unit to replace any originally-installed flooring shall provide at such Unit Owner’s sole expense the following
information to the Parcel Owner for its reference in connection with its review of any request to permit the installation of such hard-surface flooring (subject to the waiver by the
Parcel Owner of the requirement that any particular materials or information be submitted):
Information, including, if appropriate, construction plans and/or drawings, clearly indicating the type of flooring to be installed and the underlayment to be provided to mitigate impact
noises such as foot-falls. The information must clearly identify all materials, their composition, and thickness. This information, including any plans and/or drawings, shall be reviewed
and approved, at Unit Owner’s sole cost and expense, by a qualified acoustical consultant for acoustical and structural integrity and performance and compliance with the acoustical
requirements of this Residential Declaration;
A copy of the installation instructions from the resilient underlayment manufacturer, which instructions shall be followed by the installing contractor;
The name, qualifications, and experience of the contractor who will install the hard-surface flooring and resilient underlayment, with a listing of such contactor’s experience in the
installation of floors utilizing impact installation materials;
Evidence that the newly-installed flooring will not create greater noise impacts than the test results for the floor/ceiling assembly yielded when tested as described above; and
Disclaimer. EACH UNIT OWNER, BY ACCEPTANCE OF AN ORIGINAL DEED OR OTHERWISE ACQUIRING TITLE TO A UNIT, ACKNOWLEDGES AND AGREES THAT SOUND TRANSMISSION IN A BUILDING SUCH AS THE BUILDINGS
IS VERY DIFFICULT TO CONTROL AND THAT NOISES FROM ADJOINING OR NEARBY UNITS, CONDOMINIUMS ACTIVITIES AND/OR MECHANICAL EQUIPMENT CAN OFTEN BE HEARD IN ANOTHER UNIT. PARCEL OWNER DOES
NOT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE LEVEL OF SOUND TRANSMISSION BETWEEN AND AMONG UNITS AND THE OTHER PORTIONS OF THE PROJECT PROPERTY, AND EACH UNIT OWNER SHALL BE DEEMED
TO WAIVE AND EXPRESSLY RELEASE ANY SUCH WARRANTY AND CLAIM FOR LOSS OR DAMAGES RESULTING FROM SOUND TRANSMISSION.
The foregoing provisions shall not modify or affect the obligation of each Unit Owner with respect to the Standard Package obligations set forth in Sections 3.2.4 and 3.2.5, or the maintenance
and repair obligations set forth in Section 5.1 below.
Units Used for Transient Rental. At the time of closing, Parcel Owner shall deliver to each Unit Owner a description of the standard decorations and improvement package applicable to
the Unit (the “Standard Package”). In order to be eligible for rental to or use by Transient Guests, a Unit Owner shall keep its Unit in compliance with the Standard Package and shall
make no addition, alteration or improvement to the Unit of any nature whatsoever, including, but not limited to, painting, decorating, installation of floor coverings, planters, electrical
wiring, machinery, air conditioning units or installation of fixtures or personal property of any kind which, in the sole and exclusive determination of the Parcel Owner, cause the
Unit’s appearance to differ from those Units with the Standard Package, in which no additions, alterations or improvements have been made. If a Unit Owner modifies the Standard Package
in a manner that is not acceptable to the Parcel Owner and is prohibited from engaging in rentals to or permitting use by Transient Guests, such Unit Owner may be eligible for rental
to Transient Guests if such Unit Owner brings the Unit into compliance with the Standard Package by making such modifications deemed necessary by the Parcel Owner, in its sole discretion.
Required Changes to Standard Package. In order to maintain and preserve the brand standard and level of quality associated with the operation of the Apartment, the Parcel Owner may,
from time to time and in its reasonable discretion, require changes, updates or alterations to the Standard Package for the Unit Owners engaging in rentals to
or permitting use by Transient Guests. Such changes, updates or alterations to the Standard Package may include, but are not limited to, re-painting, re-decorating, installation of
new furniture, fixtures and equipment, re-modeling and structural changes and/or improvements (the “Standard Package Changes”). All costs and expenses associated with the Standard
Package Changes shall be invoiced in advance of commencement of Standard Package Changes by the transmittal of an invoice to Unit Owners engaging in rentals to or permitting use by
Transient Guests. Each Unit Owner engaging in Rentals to or permitting use by Transient Guests hereby grants a right of entry to the Parcel Owner and/or its agents to make the Standard
Package Changes; provided, however, that such right of entry shall not be made on less than fifteen (15) days’ notice. Each Unit Owner engaging in rentals to or permitting use by Transient
Guests acknowledges and agrees that such Unit Owner’s Unit may not be rented or used Transient Guests during the period of time the Standard Package Changes are being made by the Parcel
Owner. After notice of the Parcel Owner’s intent to make Standard Package Changes is provided to a Unit Owner, such Unit Owner must notify the Parcel Owner within ten (10) days if
such Unit Owner does not want the Standard Package Changes to be made. If no such notice is provided by the Unit Owner to the Parcel Owner, the Standard Package Changes shall be deemed
approved and the Parcel Owner may make the Standard Package Changes. In the event a Unit Owner does not permit the Standard Package Changes to be made, such Unit Owner’s right to engage
in rentals to or permit use by Transient Guests shall be suspended until such time as the Standard Package Changes are made. Any and all costs incurred by the Parcel Owner in connection
with the Standard Package Changes applicable to a Unit shall be a Personal Charge to the respective Unit Owner and Parcel Owner shall have the right to collect and enforce such Personal
Charge in same manner as the Residential Association pursuant to ARTICLE VII. If a Unit Owner intends to rent its Unit to Transient Guests (whether on a one-off basis, or through a
third-party rental program), (i) Parcel Owner may require any tenant/renter to comply with reasonable Apartment check-in and “front desk” services and procedures to address security
and other on-property matters and, in association with such services and procedures, charge a commercially reasonable service fee; and (ii) the interior of such Unit (including all
F&E) must be maintained consistent with the Project Standard and such Unit Owner shall be obligated to permit Apartment Operator to inspect the interior of such Unit from time to time
to confirm compliance with the foregoing.
Condominium Association Rules and Regulations. Each Unit Owner, by accepting an Original Deed or otherwise acquiring title to a Unit, as applicable, hereby covenants and agrees to abide
by the Condominium Association Rules and Regulations, including, without limitation, any policies and procedures governing the rental of Units to Transient Guests.
Use and Occupancy. Use and occupancy of the Units is limited to private, residential use (including use by Occupants and other Permitted Users). Non-residential and/or commercial use
of any Unit by any Unit Owner (except as expressly provided in Section 3.3.2 below) is prohibited. Neither the foregoing provision, nor the terms of Section 3.3.2, shall limit the
rights of Parcel Owner to rent or make available for lodging all or portions of any Units that it owns as part of its commercial Apartment operations. The provisions of this Section
3.2.7 shall not be amended or revised without the prior written consent of Parcel Owner.
Parking. Use of the parking area will be subject to the Condominium Association Rules and Regulations. No specific parking spaces will be reserved for use exclusively by Unit Owners
or their guests or Occupants. Notwithstanding the foregoing, Parcel Owner reserves the right at any time and from time to time to change the operation of the parking area for the Condominiums
and adopt parking rules and regulations in the Condominium Association Rules and Regulations.
Additional Parcel Owner’s Rights.
Sales, Re-sales and Related Purposes. Parcel Owner, for itself, its successors, assigns, agents, employees, contractors, subcontractors and other authorized personnel, reserves the
exclusive right as reasonably required by Parcel Owner, to: (1) market and sell the Units to the initial Unit Owners; (2) maintain customer relations and provide post-sales services
to Unit Owners; (3) display signs and to erect, maintain and operate, for sales and administrative purposes, model units and a customer relations, customer service and sales office
complex; and (4) show the Units that have not already been conveyed by an Original Deed (i.e., that are owned by Parcel Owner). The exercise of such rights shall not unreasonably
interfere with the Residential Association’s use of its Residential Condominium Property or the rights of Unit Owners to use and occupy the Units; provided, however, that each Unit
Owner acknowledges and agrees that Parcel Owner’s and/or Apartment Operator’s management and operation of the Apartment in accordance with the Project Standard is not inconsistent with
and does not unreasonably interfere with the Residential Association’s use of the Residential Condominium Property or the rights of Unit Owners to use and occupy the Units.
Occupancy of Units by Occupants.
Rental Agreements. A Unit Owner of a Unit shall be entitled to enter into a rental agreement for its Unit subject to any restrictions contained in the Governing Instruments and applicable
laws for any period of time (including as short as one day), including, but not limited to, any policies and procedures governing the rental of Units for transient occupancy purposes
in the Condominium Association Rules and Regulations.
Parcel Owner Rentals. Parcel Owner and/or Apartment Operator may rent Units to Transient Guests, both on its own account and for the account of Unit Owners who have executed a rental
agreement with Apartment Operator. Parcel Owner, on behalf of itself and its successors, assigns, agents, employees, contractors, subcontractors and other authorized personnel, reserves
the exclusive right in, over and through the Residential Condominium Property for the purpose of conducting its own rental activities; provided, however, the exercise of such right
shall not unreasonably interfere with the Residential Association’s use of the Residential Condominium Property as necessary to perform its duties and obligations pursuant to this Residential
Declaration and the Condominium Association Rules and Regulations or the rights of Unit Owners to use and ‘occupy their respective Units or rent their Units subject Section 3.3.2.1
and the Governing Instruments.
Transient Occupancy. It is intended that Parcel Owner may use the Units owned by Parcel Owner and other Units that are placed under management by the Apartment Operator for transient
or nightly rentals. As such, the making of Units or portions thereof available for transient occupancy purposes shall not be subject to the approval of the Residential Association
and/or any other limitations other than as expressly provided herein; however, the making of Units or portions thereof available for transient occupancy purposes shall be in accordance
with any applicable zoning ordinances and other applicable laws. Notwithstanding the foregoing, a portion of a Unit may not be used for transient occupancy purposes unless such portion
is separately locked off from the remaining portion of the Unit and such transient occupancy complies with all applicable zoning, licensing and other applicable laws and ordinances.
A Unit Owner shall be entitled to enter into occupancy agreements for the occupancy of a Unit subject to any restrictions contained in the Governing Instruments and applicable laws for
any period of time; provided, however, any arrangement for the occupancy of a Unit shall be pursuant to an agreement (each, an “Occupancy Agreement”) that shall: (i) be in writing;
(ii) provide that the Occupancy Agreement is subject to the Governing Instruments and applicable laws; (iii) provide that any failure to comply with any provisions of any of the Governing
Instruments or applicable laws shall be a default under the terms of the Occupancy Agreement and (iv) provide that it is an occupancy agreement providing the Occupant with only an
occupancy right and is not a lease granting a leasehold or tenancy interest or other interest in real estate. Any Occupancy Agreement for a Unit shall, whether or not it complies
with the requirements of the immediately preceding sentence, be subject to the Governing Instruments and applicable laws. Any breach of any of the foregoing by the Occupant shall, whether
or not so stated in such Occupancy Agreement, constitute a breach by the Occupant under such Occupancy Agreement. Occupants under Occupancy Agreements shall be considered “guests” or
“lodgers” rather than “tenants” as such term is used under Idaho law. A copy of each such Occupancy Agreement shall be provided to each of the Parcel Owner and Apartment Operator. Even
if, despite the foregoing requirements of this paragraph, no written Occupancy Agreement is executed in any circumstance in which such a written Occupancy Agreement is required hereunder,
all of the terms of this Residential Declaration and the Governing Instruments relating to Occupancy Agreements and Occupants thereunder shall nonetheless apply equally to the occupancy
of such an Occupant to the same extent as if the required written Occupancy Agreement had been executed. However, an Occupancy Agreement shall not be required with respect to the occupancy
of a Unit by the Unit Owner (or by the family members and/or guests of such a Unit Owner who are not providing any consideration for such occupancy). Any Unit Owner who enters into
a short-term rental shall be responsible for insurance coverage for any damages caused by renters to any part of the Project Property and for assuring compliance by its renters with
this Declaration and any rules and regulations established by the Residential Association Board designed to maintain the peace, safety and security of the community. Unit Owners are
responsible for keeping adequate records identifying the short-term renters, including legal name(s),
permanent address and telephone number(s) of short-term renters and providing such information to the Residential Association Board.
The Residential Association Board shall have the exclusive authority to select and approve one or more property management company(ies) to manage the rental or lease of any Unit not
actively managed by a Unit Owner. A Unit Owner may not delegate the property management of any Unit to a non-Unit Owner unless the property manager has been pre-approved by the Residential
Association Board. The Residential Association Board may establish rules, procedures, and other requirements governing approved property manager(s).
ADA Compliance. All ADA Units, as well as all improvements therein, shall be designed and constructed in compliance with the Americans With Disabilities Act (42 U.S.C. 12101 et seq.)
as well as all other applicable laws. All Units that are designated as ADA Units, as well as all improvements therein, must at all times be in compliance with the Americans With Disabilities
Act and other applicable laws. Each Unit Owner of an ADA Unit shall be responsible, at such Unit Owner’s sole cost and expense, prior to entering into a rental agreement for such ADA
Unit, to take all actions required to cause such Unit to comply in all respects with all applicable laws.
Conveyance of Property to the Residential Association. Parcel Owner shall have the right to convey any personal property to the Residential Association reasonably related to the operation
of the project at any time upon not less than thirty (30) days’ written notice to the Residential Association Board, provided that any such property shall be free of monetary encumbrances
as of the date of such conveyance.
Option to Withdraw. Parcel Owner hereby reserves the unilateral and exclusive option to withdraw one or more Units from the condominium regime such that this Residential Declaration
is no longer applicable thereto (the “Option to Withdraw”), without the prior consent of the Unit Owners, Mortgagees, the Residential Association or any other person or entity. The
Option to Withdraw must be exercised within seven (7) years after recordation of this Residential Declaration. The terms and conditions of the Option to Withdraw shall be as follows:
The real property subject to this Option to Withdraw consists of the Units.
The Option to Withdraw may be exercised as to some or all of the Units which have not been conveyed by an Original Deed and in any order and at different times.
Each Unit Owner, by acceptance of an Original Deed or otherwise acquiring title to a Unit, shall be deemed to have consented to all provisions of this Section 3.3.5.
A withdrawal of a Unit pursuant to this Section 3.3.5 shall be deemed to have occurred at the time of the recordation of an amendment to this
Residential Declaration and the Condominium Plat, if necessary, executed by Parcel Owner, containing the legal description of the Unit(s) being withdrawn. After the filing for record
of such amendment to this Residential Declaration reflecting Parcel Owner’s exercise of the Option to Withdraw, title to each such withdrawn Unit shall be vested in and held by Parcel
Owner and none of the Unit Owners, Mortgagees or the Residential Association shall have any claim or title to or interest in such withdrawn Unit. Upon any such withdrawal of a Unit,
and at all times thereafter, this Residential Declaration shall no longer govern the use, enjoyment, repair, maintenance, restoration and improvement of the Unit so withdrawn.
No provision of this Section 3.3.5 shall be amended without the prior written consent of Parcel Owner, so long as Parcel Owner owns any Unit.
Parcel Owner shall have no right to withdraw any Unit which is not owned by Parcel Owner or an affiliate of Parcel Owner.
Any Unit which is withdrawn by Parcel Owner may be annexed and again made subject to this Residential Declaration in accordance with Section 3.3.6 or made subject to any other residential
declaration applicable to any portion of the Condominiums.
The Percentage Ownership Interests set forth on Exhibit B for all Units shall be reallocated based upon square footage at the time Parcel Owner records an amendment to this Residential
Declaration reflecting Parcel Owner’s exercise of its Option to Withdraw in accordance with the provisions set forth in this Residential Declaration.
Intentionally Omitted.
Operation of Apartment; Apartment Services. In connection with Parcel Owner’s and Apartment Operator’s management and operation of the Apartment, the Residential Association and each
Unit Owner agree and acknowledge as follows:
Parcel Owner and Apartment Operator and their respective successors, assigns, agents, employees, contractors, subcontractors and other authorized personnel, reserve the exclusive right,
and are hereby authorized to, manage and operate the Apartment in accordance with the Project Standard. Each Unit Owner, by acceptance of an Original Deed or otherwise acquiring title
to a Unit, acknowledges and agrees that Parcel Owner and/or Apartment Operator shall determine the Project Standard in their sole and absolute discretion and that each Unit Owner benefits
from and consents to the operation of the Apartment in accordance with the Project Standard.
Parcel Owner may, from time to time, and in its sole and absolute discretion, change the Apartment Services provided to Unit Owners, guests and Occupants of the Units without the consent
or approval of the Residential Association or the Unit Owners.
Unit Owners, upon acceptance of an Original Deed or otherwise acquiring title to a Unit, shall execute and deliver an Apartment Amenities Services Agreement for the provision of Apartment
Services to such Unit. The provision of Apartment Services will at all times be subject to and governed by such Apartment Amenities Services Agreement.
Residential Association Easements.
Grant of Easement to the Residential Association. The Residential Association, for itself, its successors and assigns, and its and their agents, employees, contractors, subcontractors,
and other authorized personnel, shall have the right and is hereby granted, for so long as the Residential Association or its successors and assigns shall be required hereunder to manage
and maintain the Residential Condominium Property (excluding the Units) and/or perform its obligations under this Residential Declaration, a non-exclusive easement in gross in, over
and through the Residential Condominium Property (including each Unit) for the management, operation, repair and maintenance of the Residential Condominium Property and/or the performance
of its obligations under this Residential Declaration; provided, however, that use of such easement shall not: (A) unreasonably interfere with or diminish the rights of Unit Owners,
Permitted Users or Parcel Owner to occupy the Units; (B) unreasonably interfere with or diminish the rights of Unit Owners to use Residential Condominium Property, or (C) interfere
with or diminish the rights of Parcel Owner under this Residential Declaration. In amplification and not in limitation thereof, the Residential Association and its respective successors
and assigns shall have the right at any reasonably necessary time, whether or not in the presence of the Unit Owner thereof, to enter upon any Unit for the purpose of: (1) making emergency
repairs therein; (2) abating any nuisance or any dangerous, unauthorized, prohibited or unlawful activity being conducted or maintained in such Unit; (3) protecting property rights
and welfare of any Unit Owner or Permitted User; or (4) for any other purpose reasonably related to the performance by the Residential Association of its duties and obligations under
the terms of this Residential Declaration. Such right of entry shall be exercised in such a manner as to avoid any unreasonable or unnecessary interference with the possession, use
and enjoyment of the rightful occupant of such Unit and shall be preceded by reasonable notice to such occupant (and in the case of a Unit owned by the Parcel Owner, the Parcel Owner
and the Apartment Operator) in the event of entry into a Unit, whenever the circumstances permit; provided, however, the use of such easements shall not unreasonably interfere with
the rights of Unit Owners to use and occupy their respective Units or use the Residential Condominium Property. The provisions of this Section 3.4.1 relating to Units owned by the
Parcel Owner shall not be amended or revised without the prior written consent of the Parcel Owner.
Easements Granted by the Residential Association. The Residential Association shall not grant any easement within the Residential Condominium Property without the express written consent
of Parcel Owner, which consent may be withheld in the Parcel Owner’s sole discretion.
Utility Easement to Unit Owners. Wherever sanitary sewer connections or lines and/or water connections or lines or cable television, electricity, gas or telephone lines are installed
within the Residential Condominium Property, which connections or lines serve more than one Unit, each Unit Owner served by such connections or lines shall have a non-exclusive easement
for, and be entitled to the full use and enjoyment of, such portions of such connections or lines as may serve or be needed to serve such Unit Owner’s Unit. In the event of a dispute
with regard to such easement or with respect to the sharing of the cost thereof, then upon written request of one of the Unit Owners addressed to the Residential Association the matter
shall be submitted to the Residential Association Board, which shall decide the dispute in a manner consistent and in all cases in compliance with the provisions of this Residential
Declaration, and the decision of the Residential Association Board made in accordance with such standard shall be final and conclusive on the parties.
Easements for Encroachments. Each Unit and all portions of it are subject to easements hereby created for encroachments between the Units and the Apartment as follows:
In favor of Parcel Owner so that it shall have no legal liability when any part of the Apartment encroaches upon a Unit;
In favor of each Unit Owner so that the Unit Owner shall have no legal liability when any part of such Unit Owner’s Unit encroaches upon the Apartment or upon another Unit; and
In favor of Parcel Owner, each Unit Owner and the Residential Association for the maintenance and repair of such encroachments.
Encroachments referred to in this Section 3.6 include, but are not limited to, encroachments caused by error or variance from the original plans in the construction of the Apartment
or any Unit constructed on the Condominiums, by error in the Condominium Plat, by settling, rising or shifting of the earth, or by changes in position caused by repair of any part of
the Condominiums. Such encroachments shall also include encroachments caused by reconstruction of the Condominiums provided such reconstruction is done in substantial conformity with
the location of the Condominiums prior to such reconstruction. Such encroachments shall not be considered to be encumbrances upon any part of the Units.
Covenants Running With the Land. Each of the easements provided for in this Residential Declaration shall be deemed to be established upon the recordation of this Residential Declaration,
and shall thenceforth be deemed to be covenants running with the Units for the use and benefit of the Units and the Unit Owners thereof, whether or not such easements are set forth
in the Original Deeds to the Units or any other subsequent conveyance of a Unit. Each easement set forth herein shall survive the termination of this Residential Declaration.
Transfer of Interest. No Unit Owner may sell, assign, transfer, hypothecate or encumber less than all of his or her Unit; provided, however, that nothing herein contained shall: (i)
limit the right of Parcel Owner and its successors and assigns to sell Units as contemplated herein; or (ii) restrict the manner in which title to the Unit may lawfully be held under
Idaho law (e.g., joint tenants, tenants-in-common, or the like). Except as provided under clause (i) above, any sale, assignment, transfer, hypothecation or encumbrance by any Unit
Owner of less than all of his or her interest in his or her Unit shall be null, void and of no effect. The transfer of any Unit
shall operate to transfer to the new owner of the Unit the interest of the prior Unit Owner in all funds in the hands of the Residential Association even though not expressly mentioned
or described in the instrument of transfer and without further instrument of transfer. No Unit may be subjected to or made subject to a Unit Occupancy Plan, as such term is defined
in this Residential Declaration.
Separate Mortgages. Each Unit Owner shall have the right to mortgage or otherwise to encumber all, but not less than all, of such Unit Owner’s Unit. Subject to the provisions of ARTICLE
VII of this Residential Declaration, any Mortgage shall be subordinate to all of the provisions of the Governing Instruments and, in the event of foreclosure, the provisions of the
Governing Instruments shall be binding upon any Unit Owner whose title is derived through foreclosure by private power of sale, judicial foreclosure or otherwise. Notwithstanding any
other provision of the Governing Instruments, no breach of the provisions herein contained, nor the enforcement of any lien created pursuant to the provisions hereof, shall impair,
defeat or render invalid the priority of the lien of any First Mortgage encumbering a Unit.
Subordination and Partition of Tenancy-in-Common Attributes.
Subordination. It is intended that this Residential Declaration and all documents promulgated hereunder shall govern all rights with respect to the use, possession, enjoyment, management
and disposition of the Units. Accordingly, all rights with respect to the use, possession, enjoyment, management or disposition of a Unit which a Unit Owner might otherwise have as
a tenant-in-common (including, but not limited to, any common law or statutory right jointly to use, possess or manage commonly owned Residential Condominium Property) are hereby unconditionally
and irrevocably subordinated to this Residential Declaration and any documents promulgated hereunder, for so long as this Residential Declaration, any documents promulgated hereunder,
shall remain in effect; provided, however, that in the event that an election to terminate this Residential Declaration is made pursuant to Section 15.2 of this Residential Declaration,
a Unit Owner shall have the rights specified in such Section.
Partition. Except as provided in Section 15.2 of this Residential Declaration, no Unit Owner or other person or entity acquiring any right, lien or interest in the Residential Condominium
Property shall seek or obtain, through any legal procedures, judicial partition of the Residential Condominium Property or the sale thereof in lieu of partition. If, however, any Unit
is owned by two (2) or more persons as tenants-in-common or as joint tenants or as husband and wife, nothing herein contained shall prohibit a judicial sale of such Unit in lieu of
partition as between such interest holders.
Protection of Interest. Except as provided in Section 3.9 of this Residential Declaration, no Unit Owner shall permit such Unit Owner’s Unit to be subject to any lien (other than the
liens of current real property taxes), claim or charge, the enforcement of which may result in a sale or threatened sale of the Unit of any other Unit Owner (or any part thereof) or
in any interference in the use or enjoyment thereof by any other Unit Owner. In the event of a threatened sale of the Residential Condominium Property or the Unit of any such other
Unit Owner (or any part thereof), or should the use and enjoyment of any portion thereof by such other Unit Owner be threatened by reason of any lien, claim or charge against the Unit
of any other Unit Owner (the
“Defaulting Unit Owner”), or should proceedings be instituted to effect any such sale or the foreclosure of any such lien, claim or charge, then any Unit Owner other than the Defaulting
Unit Owner (the “Curing Unit Owner”) acting on his or her own behalf or through the Residential Association, or the Residential Association acting on behalf of any one or more Unit
Owners, (in each case if promptly indemnified to the acting party’s satisfaction) may, but shall not be required to, pay or compromise the lien, claim or charge without inquiry into
the proper amount or validity thereof and, in such event, the Defaulting Unit Owner shall forthwith reimburse the Curing Unit Owner or the Residential Association, as applicable, for
the amount so paid or expended by the Curing Unit Owner or the Residential Association, as applicable, in paying or compromising the lien, claim or charge, together with such reasonable
attorneys’ fees and related costs as the Curing Unit Owner or the Residential Association may have incurred. No Unit Owner shall permit his or her interest in any funds from time-to-time
in possession of the Residential Association to be subjected to any attachment, lien, claim or charge or other legal process, and each Unit Owner shall promptly restore any funds held
by the Residential Association with respect to his or her Unit to the extent depleted by the reason of the assertion of any such attachment, lien, claim, charge or other legal process
and shall reimburse the Residential Association for all reasonable attorneys’ fees or other costs incurred in respect thereof.
Notwithstanding the foregoing, in the event a lien against two or more Units becomes effective, each Unit Owner may remove his or her Unit and the Percentage Ownership Interests appurtenant
to such Unit from such lien by payment of the fractional or proportional amount attributable to the Unit to be released. Such payment shall be computed by reference to the respective
Percentage Ownership Interests of the Units subject to such lien. Subsequent to any such payment, or other discharge or satisfaction for a given Unit subject to such lien, the Unit
and the Percentage Ownership Interests appurtenant thereto with respect to which such payment, discharge or satisfaction is made shall be free and clear of the lien so paid, satisfied
or discharged. Such payment, satisfaction or discharge shall not prevent the lienor from proceeding to enforce his rights against any other Unit and the Percentage Ownership Interests
appurtenant thereto for which such payment, discharge or satisfaction has not been made.
Compliance with Laws. No Unit Owner or Permitted User shall permit anything to be done or kept in such Unit Owner’s Unit or part thereof or within any other portion of the Residential
Condominium Property which violates any applicable law, ordinance, statute, rule or regulation of any local, county, state or federal government or agency thereof.
No Increased Insurance. Nothing shall be done or kept in any Unit or within any other portion of the Residential Condominium Property which will increase the rate of insurance on the
Residential Association without the prior written consent of the Residential Association Board. No Unit Owner shall permit anything to be done or kept in their Unit, or do or place
anything within the Residential Condominium Property, which would result in the cancellation of insurance of the Residential Association.
Antennae and Exterior Appliances. Except to the extent otherwise permitted by applicable law, notwithstanding the prohibition stated in this Section, no Unit Owner shall erect, attach
or cause to be erected or attached, any item, including but not limited to towers, antennae, aerials, dishes, reflectors or other facilities for the reception or transmission of radio
or television broadcasts or other means of communication, or wiring for electrical or telephone installation,
television antennae, security systems, machines, air conditioning units or appliances, on the exterior of, or that protrude through the walls or roof of, the Apartment without the prior
written consent of the Parcel Owner.
Domestic Animals. The Condominium Association Rules and Regulations may regulate the access to and use of any part of the Project Property by pets or other animals, and each Unit Owner
shall comply and cause its Permitted Users and Occupants to comply with any of the restrictions and limitations set forth in the Condominium Association Rules and Regulations. The
Residential Association rules may further limit or restrict the keeping of such animals. Both Parcel Owner and the Residential Association shall specifically have the power to prohibit
the keeping or maintenance of any animal within the Residential Condominium Property which is deemed by Parcel Owner or the Residential Association to constitute a nuisance to any other
occupant. Each person bringing or keeping an animal within the Condominiums shall be absolutely liable to the Parcel Owner and other Unit Owners and occupants for any damage to persons
or property caused by any animal brought upon or kept upon the Condominiums by such person or by members of its family or its invitees. Each Unit Owner shall clean up after such animals
that have deposited droppings or otherwise used any portion of the Condominiums. Animals belonging to Unit Owners or invitees or occupants of any Unit Owner must be kept within an
enclosure or on a leash held by a person capable of controlling the animal when outside the applicable Unit. The Parcel Owner shall at all times have the right to amend any rules and
regulations regarding animals and may terminate the right to bring animals to the Residential Condominium Property.
Waterbeds and Aquariums. No water bed and no aquarium or other container holding thirty (30) or more gallons of water shall be permitted in any Unit. Each Unit Owner acknowledges that
substantial damage to other Units, the Residential Condominiums and/or the Condominiums may occur as a result of a violation of this restriction.
Legal Description of a Unit. Any legal description substantially in the form set forth below or which is otherwise sufficient to identify a Unit shall be sufficient for all purposes
to sell, convey, transfer and encumber or otherwise affect a Unit:
Unit No. ____________ of the University View Condominiums, according to the Condominium Plat recorded in the Office of the Madison County Recorder on ____________, 20__, as Entry No.
_______________ and the Declaration of Covenants, Conditions and Restrictions for University View Condominiums recorded in the Office of the Madison County Recorder on _______________,
20__, as Entry No. _______________, in Book ____________at Page ________ and as further defined in and made subject to that certain Declaration of Covenants, Conditions and Restrictions
for University View Apartments recorded in the Office of the Madison County Recorder on ____________, 20__, as Entry No. _______________, in Book _______________ at Page ________, together
with an undivided interest in the common areas and facilities appurtenant to such Unit and the exclusive right to use the limited common areas and facilities appurtenant to such Unit,
as provided in the Condominium Plat and the Residential Declaration.
Any conveyance of a Unit shall include the items set forth in Section 2.4 above.
Insurance. Each Unit Owner shall have the obligation and duty to obtain, maintain and pay the cost of insurance in accordance with Section 11.2 below.
THE RESIDENTIAL ASSOCIATION
Membership in Residential Association. Each Unit Owner shall be a Residential Association Member and shall remain a Residential Association Member until such Unit Owner ceases to be
a Unit Owner.
Transfer of Membership in the Residential Association. The membership of each Unit Owner in the Residential Association is appurtenant to and inseparable from his or her ownership of
a Unit and shall be automatically transferred upon any effective assignment or transfer of the ownership of his or her or her entire Unit to any assignee or transferee and, except with
respect to the automatic transfer described above, such membership shall be nontransferable whether by gift, bequest or otherwise.
Voting and Types of Membership in the Residential Association. Voting and types of membership in the Residential Association shall be in accordance with the provisions of the Residential
Articles and the Residential Bylaws. The voting rights appurtenant to each Unit shall vest upon execution and recording of this Residential Declaration.
Board of Directors. The Residential Association Board shall consist of at least three (3) and not more than seven (7) natural persons, to be initially appointed by Parcel Owner and
subsequently elected in accordance with the Residential Bylaws. The initial Residential Association Board shall consist of three (3) natural persons.
Period of Parcel Owner Control. There is hereby established a Period of Parcel Owner Control of the Residential Association, as described in the Master Definitions, during which period
Parcel Owner or persons designated by it shall have the authority to appoint and remove the Residential Association officers and members of the Residential Association Board.
MANAGEMENT
Allocation of Maintenance and Repair Obligations.
Unit Owners’ Maintenance Obligations. Each Unit Owner shall be responsible for the maintenance of his or her Unit, as set forth in this Residential Declaration.
The Residential Association’s Obligations. The Residential Association shall have the primary obligation and liability to administer to the affairs of the Unit Owners as provided herein
and to maintain and repair the Residential Condominium Property (excluding the Units).
Items Comprising a Unit or Contained Therein or Servicing Such Unit. For avoidance of doubt, the following is intended to clarify what comprises a Unit or what is
contained in or what exclusively services such Unit: First, all items that are included within the definition of Unit shall be deemed to comprise a Unit, and all items that are excepted
from such definition of Unit (e.g., the bearing walls, windows and window frames, exterior doors and door frames, columns, exterior floors, roofs, railings, fences, foundation slabs,
exterior wall surfaces and central services, pipes, ducts, chutes, and flues, conduits, wires and other utility installations wherever located within each such individual air space
unit), shall not be deemed to comprise a Unit. Second, all F&E and all personal property and improvements that are located entirely or partially within a Unit (for example, an exhaust
fan located in a bathroom of a Unit, the cover of which is within the Unit but the motor of which extends into the attic space above the ceiling of the Unit, is deemed to be within
the Unit in which it is located) shall be deemed to be contained in such Unit. Third, all equipment located within the walls, floors or ceilings immediately contiguous to a Unit and
exclusively serving such Unit shall be deemed to exclusively service such Unit and therefore to be part of such Unit for the purposes of this Residential Declaration (e.g., a fan coil
unit, circuit breaker and smoke and fire system dedicated to but not located within a Unit). In furtherance of the foregoing, all of the following shall expressly not be deemed to
comprise or be contained in or exclusively service a Unit:
all areas that do not and equipment that does not exclusively serve a single Unit (e.g., multiple fan cooling unit, hot water circulating pump, fire protection system, roofs, elevators,
hallways, fire escape stairs, railings and fences, foundations and slabs, each of which serves more than one Unit);
all items not within a Unit which are part of the physical structure that creates and/or supports a Unit (e.g., studs, beams, fasteners, connectors, nails, screws, nuts, bolts, junction
boxes, insulation, exterior siding, pipes, ducts, chutes, flues, conduits, sub-floors, ceilings and drywall, exterior doors and windows); and
all items which are part of a utility distribution system (e.g., water lines and pipes; sewer lines, pipes, ducts and vents; electrical lines and wiring, connectors and boxes; and gas
lines). For clarification, the items in this category are part of a system that delivers utilities to a Unit, but do not include the fixtures or other items designed to operate when
the utilities are delivered through such system (e.g., an exhaust fan or light fixture).
As an example of the foregoing repair and maintenance obligations, if (subsequent to any applicable warranty period) the exhaust fan referred to above breaks, the Unit Owner shall be
responsible for its repair. If, however, the exhaust fan fails to operate because of a faulty wire located within the walls of the Unit, then the Unit Owner will not be responsible
for the repair (because, in fact, it is not the exhaust fan that is faulty but rather the wire delivering electrical current to such exhaust fan that is faulty (in accordance with Section
5.1.3.3) and because such faulty wire is not within the Unit). Notwithstanding the foregoing, all items not deemed to “comprise” or be “contained” in a Unit under the foregoing provisions
that require repair as a result of prior alterations or other actions by a Unit Owner (or a predecessor Unit Owner) or such Unit Owner’s Permitted Users shall also be the responsibility
of such Unit Owner to repair (e.g., if a Unit Owner is installing shelving in his or her Unit and in so doing damages electrical wires within the wall of such Unit, if a Unit Owner
removes or modifies a water line within the wails of his or
her Unit and in so doing damages such water lines, or if a Unit Owner causes the plumbing to back up, then such Unit Owner shall be responsible for repairing the damaged electrical wires,
repairing the altered water line (if it ever requires repair), or cleaning out the plumbing).
Specific Powers and Duties of the Residential Association. The Residential Association, acting alone (through the Residential Association Board, its officers, or other duly authorized
representatives) may, subject to the provisions of the Governing Instruments, exercise any and all rights and powers herein enumerated and, except as specifically limited herein, all
the rights and powers of a non-profit corporation under the laws of the State of Idaho. The following powers and duties are in amplification and not limitation of the foregoing powers
and duties:
Bank Accounts. The Residential Association shall have the power and duty to establish and maintain the Residential Association General Account and a Residential Association Reserve
Account, and to deposit therein all funds collected by the Residential Association from the Residential Association Members in connection with its rights and duties hereunder as follows:
All funds shall initially be deposited in the Residential Association General Account. Funds deposited in such General Account may be used by the Residential Association only for the
purposes for which such funds have been collected.
Within ten (10) days after initial deposit in the Residential Association General Account after collection, all amounts collected for Residential Reserve Expenses shall be deposited
in a Residential Association Reserve Account. The Residential Association shall keep accurate books and records reflecting the amount in such Reserve Account. Funds deposited in such
Reserve Account shall be held in trust and, except in an emergency, may be used by the Residential Association only for the specific purposes for which such funds have been collected.
Funds held in such Reserve Account and used in an emergency shall be replaced in such Reserve Account as soon as practicable after the date upon which emergency arose but in no event
later than the end of the Fiscal Year immediately following the Fiscal Year in which such emergency occurred. Interest, if any, earned on Reserve Account funds shall be accumulated
therein and shall be used only for payment of Residential Reserve Expenses and any taxes incurred by the Residential Association as a result of the earning of such interest.
Delegation – Employment of Agents. The Residential Association shall have the power and duty to delegate the authority and responsibilities of the Residential Association hereunder
to one or more agents, including, without limitation, the Residential Association Manager as provided for in Section 5.3 of this Residential Declaration, and the power to employ the
services of any person or corporation as Residential Association Manager (in accordance with Section 5.3), or other employees as may be directed by the Residential Association Board,
to manage, conduct, and perform the business, obligations and duties of the Residential Association.
Budgets and Financial Statements. The Residential Association shall have the power and duty to cause to be regularly prepared financial statements for the Residential Association and
copies thereof to be distributed to all Residential Association Members as follows:
A Residential Association Budget shall be distributed to Unit Owners not less than thirty (30) days before the beginning of each Fiscal Year, except the first Fiscal Year with respect
to which the Residential Association Budget shall be distributed as soon as reasonably possible. The Residential Association Budget shall contain at least the following information:
Estimated revenue and expenses of the Residential Association on an accrual basis or any other method as determined by the Residential Association or its accountants; and
A summary of the total cash reserves of the Residential Association currently available for replacement or major repair of common facilities owned by the Residential Association and
for contingencies.
A Residential Association Annual Report shall be distributed within one hundred twenty (120) days after the end of each Fiscal Year. The Residential Association Annual Report may be
prepared by a licensed certified public accountant. If the Residential Association Annual Report is not prepared by such a licensed certified public accountant, the Residential Association
Annual Report shall be prepared by the Residential Association Manager or by an officer of the Residential Association and shall be accompanied by the certificate of the person preparing
the Residential Association Annual Report that the Residential Association Annual Report was prepared without audit from the books and records of the Residential Association.
In lieu of the distribution of the Residential Association Budget and the Residential Association Annual Report, the Residential Association Board may elect to distribute a summary of
the Residential Association Budget and the Residential Association Annual Report to each Residential Association Member with a written notice, in 10-point bold print type on the front
page of the summary, that the Residential Association Budget and the Residential Association Annual Report are available at the business office of the Residential Association and that
copies will be provided upon a Residential Association Member’s request at the expense of the Residential Association. Any such summary requested shall be mailed to the requesting
Residential Association Member by first-class United States Mail at the expense of the Residential Association.
Inspection of Books and Records.
The Residential Association shall have the power and duty to open, at any reasonable time during usual business hours, the books and records of the Residential Association for inspection
by any Residential Association Member
upon the written demand by such Residential Association Member; provided, however, that the Residential Association shall be obligated to open its books and records for inspection by
a Residential Association Member only if the Residential Association Member requests such inspection for a purpose reasonably related to the Residential Association Member’s interests
as a Residential Association Member. The inspection may be made in person or by an agent or attorney and shall include the right to copy and make extracts.
The Residential Association Board shall have the power and duty to establish reasonable rules with respect to: (A) notice to be given to the custodian of records by the person desiring
to make the inspection; (B) hours and days of the week when such an inspection may be made; and (C) payment of the cost of reproducing copies of documents requested by a Residential
Association Member or a Mortgagee.
Each member of the Residential Association Board shall have the absolute right at any time to inspect all books, records and documents of the Residential Association and the physical
properties owned or controlled by the Residential Association. The right of inspection by a member of the Residential Association Board includes the right to make extracts and copies
of documents.
Insurance – Residential Association.
The Residential Association shall have the power and duty to obtain and pay the cost of insurance in accordance with ARTICLE XI.
The Residential Association shall, as soon as reasonably practical, notify its Members by first-class mail if any of the insurance policies required hereunder has lapsed, been canceled,
and is not immediately renewed, restored, or replaced. If the Residential Association receives any notice of non-renewal of such a policy, the Residential Association shall immediately
notify its Members if replacement coverage will not be in effect by the date the existing coverage will lapse.
Levy and Collection of Residential Assessments and Other Charges.
Residential Association Assessment. The Residential Association shall have the power and duty to determine, levy, collect and enforce Residential Assessments against the Unit Owners
in the manner provided in ARTICLE VI and ARTICLE VII hereof in order to pay the Residential Basic Expenses and do all things necessary to enforce each Unit Owner’s obligations hereunder.
The Residential Association shall determine the Residential Association Assessment by apportioning the Residential Basic Expenses among the Unit Owners based on each Unit Owner’s Percentage
Ownership Interest.
Residential Declaration Assessments. In the event that the Residential Association fails to fulfill its obligations under Section 5.2.6.1 as to all or any portion of the Residential
Declaration Assessments, then the Parcel Owner
shall have the power and duty to determine, levy, collect and enforce such amounts against the Unit Owners in the manner provided in ARTICLE VI and ARTICLE VII hereof in order to cause
Unit Owners to pay such amounts and do all things necessary to enforce each Unit Owner’s obligations hereunder, except that any lien of the Parcel Owner shall have priority over any
lien of the Residential Association.
Maintenance and Repair. The Residential Association shall have the power and duty to: (i) repair and maintain the Residential Lounge; (ii) establish reserves for anticipated costs,
including the costs of acquisition and replacement, of the Residential Lounge; and (iii) acquire and pay for materials, supplies, furniture, furnishings, labor or services which the
Residential Association deems necessary or proper for the management, operation, maintenance and repair of the Residential Lounge. The Residential Association may delegate any or all
of its duties under this Section to Parcel Owner with Parcel Owner’s written consent.
Minutes, Agenda and Policies. The Residential Association shall have the power and duty to provide each Residential Association Member with a copy of the minutes of Residential Association
Board meetings in accordance with the Residential Bylaws.
Rules and Regulations. The Residential Association shall have the power and duty to adopt, publish and enforce, from time-to-time, rules relating to the possession, use and enjoyment
of the Residential Lounge which rules shall be consistent with the provisions of the Governing Instruments and shall not conflict with any Condominium Association Rules and Regulations.
Statements of Status: Condominiums.
The Residential Association shall have the power and duty to issue a Statement of Status within ten (10) days of the Residential Association’s receipt of a request therefor by any Unit
Owner, Mortgagee, prospective Mortgagee, purchaser or other prospective transferee of a Unit. Such Statement of Status shall be binding upon the Residential Association in favor of
any person who may rely thereon in good faith.
The Residential Association shall have the power and duty to provide to a Unit Owner a copy of this Residential Declaration, the Residential Articles and the Residential Bylaws, within
ten (10) days of the Residential Association’s receipt of a written request therefor by any Unit Owner.
The Residential Association shall have the power to charge a fee for providing the Statement of Status or any documents so requested by a Unit Owner, which fee shall not exceed the reasonable
cost of preparation and/or reproduction thereof.
Taxes and Assessments. The Residential Association shall have the power and duty to pay the Taxes attributable to the Residential Condominium Property (other than Taxes assessed against
a Unit that are to be paid by the related Unit Owner) and shall have
the power to discharge, contest or protest liens or charges affecting the Residential Condominium Property (other than liens or charges assessed against a Unit that are to be paid by
the related Unit Owner).
Utilities. The Residential Association shall have the duty to pay the charges for utility services provided to the Residential Association and the Units, including power, water, sewer
and cable television (whether payable directly to the utility company in question or as a reimbursement to Parcel Owner pursuant to the Residential Declaration). No changes to the
Residential Association’s cable television provider or plan shall be made without the prior written consent of the Parcel Owner and the Residential Association.
Professional Advisors. The Residential Association shall have the power to retain and pay the cost of professional advisors necessary or proper in the operation and management of the
Residential Condominium Property, the maintenance and repair of the Residential Condominium Property, and the enforcement of this Residential Declaration, the Residential Articles and
the Residential Bylaws, including, but not limited to, architects, planners, lawyers and accountants.
Right of Entry. The Residential Association shall have the power to enter any Unit, at any reasonable time and whether or not in the presence of the occupant, for the purposes and with
the limitations set forth in Section 3.4.1.
Borrowing of Money. The Residential Association shall have the power to borrow and repay money for the purpose of performing its obligations under Section 5.2.7, and to encumber the
Residential Condominium Property (excluding the Units) as security for the repayment of such borrowed money.
Services. The Residential Association shall have the power to contract, directly or through the Residential Association Manager, or otherwise provide for all services necessary or convenient
to the management, maintenance and operation of the Residential Condominium Property, including without limitation, cable television and internet services; provided, however, that the
Residential Association shall not contract for such services if the same are contracted for and provided by Parcel Owner or Apartment Operator in accordance with this Residential Declaration
or the Apartment Amenities Services Agreement.
Designate Officers. Subject to the express terms and conditions of this Residential Declaration, the Residential Association shall have the power to select, appoint and remove the officers,
agents and employees of the Residential Association, prescribe such powers and duties for them as are not inconsistent with law, the Residential Articles, the Residential Bylaws or
this Residential Declaration, and, subject to the provisions of the Residential Bylaws, fix their compensation.
Reserves. The Residential Association shall have the power to establish, maintain and expend reserve funds for replacements relating to the Residential Condominium Property.
Power to Levy and Assess Fines, Discipline. The Residential Association shall have the power to levy, collect, enforce and assess fines against any Unit Owner who violates, or whose
Permitted Users violate, this Residential Declaration in accordance with ARTICLE VII and the Act.
Litigation. The Residential Association shall have the power to prosecute or defend, in the name of the Residential Association, any action affecting or relating to the Residential
Association and any action in which all or substantially all of the Unit Owners have an interest.
Other Necessary Acts. The Residential Association shall have the power to do all other things or acts deemed by the Residential Association to be necessary, desirable or appropriate
for the operation and maintenance of the Residential Condominium Property.
Authority and Duty to Engage Residential Association Manager. The Residential Association shall have the authority to engage and the obligation to use its best efforts to engage and
maintain a reputable firm as the Residential Association Manager (which may be the Apartment Operator), to manage, conduct and perform the business, obligations and duties of the Residential
Association pursuant to a Residential Association Management Agreement. The Residential Association Manager shall have the right of ingress and egress over such portions of the Residential
Condominium Property as are necessary for the performance of such business, duties and obligations.
Limitation on Powers of the Residential Association Manager. The Residential Association Manager shall not, without having first obtained the consent of a majority of Non-Parcel Owners:
(a) enter into a contract with a third person or entity whereby such person or entity will furnish goods or services for the management, operation, maintenance and repair of the Residential
Condominium Property, for a term longer than one (1) year, except for: (i) a contract with a public utility company if the rates charged for the materials or services are regulated
by the Idaho Public Utilities Commission; provided, however, that the term of the contract shall not exceed the shortest term for which the supplier will contract at the regulated rate;
or (ii) a prepaid casualty and/or liability insurance policy not to exceed three (3) years duration provided that the policy permits pro rata cancellation by the insured; (b) incur
aggregate expenditures for capital improvements to any Residential Condominium Property in any Fiscal Year in excess of available reserves; (c) during any Fiscal Year, sell any property
of the Residential Association having an aggregate fair market value greater than five percent (5%) of the budgeted gross expenses for the Residential Association for that Fiscal Year;
and (d) pay compensation to members of the Residential Association Board or to the officers of the Residential Association for services performed in the conduct of the Residential Association’s
business; provided, however, that the members of the Residential Association Board or officers of the Residential Association may be reimbursed for reasonable expenses incurred in carrying
on the business of the Residential Association.
Limited Liability – Residential Association Manager and Residential Association. Neither the Residential Association nor the Residential Association Manager shall be responsible for
the acts, omissions or conduct of any Unit Owner or Permitted User, or for the breach of any
of the obligations of any Unit Owner or Permitted User. Notwithstanding the duty of the Residential Association to maintain and repair Residential Condominium Property, and except to
the extent covered by insurance, the Residential Association shall not be liable to Unit Owners for injury or damage, other than for the cost of maintenance and repair, caused by any
latent condition of the Residential Condominium Property to be maintained and repaired by the Residential Association or caused by natural elements or other Unit Owners or persons.
All users of the Residential Condominium Property and the Unit Owners shall use the Residential Condominium Property at their own risk.
Residential Association – Personal Liability, Indemnification. No director or officer of the Residential Association shall be personally liable to any Unit Owner, or to any other party,
including the Residential Association, for any damage, loss or prejudice suffered or claimed on account of any act, omission, error or negligence of the Residential Association, the
Residential Association Board or any -other representative or employee of the Residential Association or any officer of the Residential Association, provided that such person has, upon
the basis of such information as may be possessed by him or her, acted in good faith, and without willful or intentional misconduct. The Residential Association hereby agrees to indemnify
any director or officer of the Residential Association against any liability for any damage, loss or prejudice suffered or claimed on account of any act, omission, error or negligence
by such director or officer in representing the Residential Association, provided that such person has, upon the basis of such information as may be possessed by him or her, acted in
good faith, and without willful or intentional misconduct.
RESIDENTIAL ASSESSMENTS AND PERSONAL CHARGES
Creation of Personal Obligations For Residential Assessments. From and after the date of the closing of escrow for the sale of the first Unit, Parcel Owner, for each Unit owned by Parcel
Owner, hereby covenants, and each Unit Owner accepting the conveyance of a Unit, whether or not it shall be so expressed in the Original Deed, shall be deemed to have covenanted and
agreed for each Unit owned, to pay the Residential Assessments which shall be established, made and collected as hereinafter provided. Each Unit Owner, including Parcel Owner, for
each Unit which it owns, shall be liable for a proportionate share of the Residential Assessments, such share being the same as the Percentage Ownership Interest appurtenant to the
applicable Unit. Parcel Owner may, to the extent permitted by law, in lieu of payment of the Residential Assessments, enter into a Subsidy Agreement with the Residential Association
with respect to any Units owned by Parcel Owner, requiring Parcel Owner to pay monies which are sufficient, together with the Residential Association Assessments paid by all other Unit
Owners, to enable the Residential Association to timely pay the Residential Basic Expenses as they become due and payable. Residential Assessments, together with interest thereon and
costs and reasonable attorneys’ fees shall be the personal obligation of each Unit Owner at the time each Residential Assessment becomes due and payable and shall be a lien and charge
upon the Unit against which such Residential Assessment is made. The personal obligation for delinquent Residential Assessments shall pass to a successor-in-title to a Mortgagee and
to all other successors-in-title except for a Mortgagee or Parcel Owner, or an affiliate of Parcel Owner, with respect to any Unit that Parcel Owner, or such affiliate, reacquires after
the initial conveyance of such Unit by Parcel
Owner. No Unit Owner may waive or otherwise avoid liability for the Residential Assessments by non-use of his or her Unit or any part thereof or any abandonment thereof.
Purpose of Residential Assessments. Residential Assessments shall be used exclusively to fund the Residential Basic Expenses and any other costs and expenses of the Residential Association.
Limitation on Residential Association Assessment. The aggregate of the Residential Association Assessments (not including real property taxes levied against or to be paid by the Unit
Owners of any Unit) for any applicable Fiscal Year subsequent to the first full Fiscal Year shall not exceed one hundred twenty-five percent (125%) of the aggregate Residential Association
Assessments (not including real property taxes levied against or to be paid by the Unit Owners of any Unit) for the preceding Fiscal Year (without regard to any increase or decrease
as set forth in Section 6.4 of this Residential Declaration), without the consent of a majority of the voting power of Unit Owners other than Parcel Owner.
Reduction of Residential Association Budget. Each Unit Owner hereby agrees that in the event the Residential Association Board shall determine at any time during the Fiscal Year that
the amount the Residential Association Budget is, or will be, in excess of the amounts needed to meet the Residential Basic Expenses (other than Residential Reserve Expenses) for such
Fiscal Year, the Residential Association Board shall have the authority, exercisable in its sole discretion, to cause to be prepared an estimate of the amount of such excess, which
excess shall then be subtracted from the previously approved amount of the Residential Association Budget for the Fiscal Year to which such excess is applicable, provided, however,
that the Residential Association Board may choose, at its discretion, to pay such excess into the Reserve Account or apply such excess to future Residential Basic Expenses. The Residential
Basic Expenses reflected in the reduced amount of the Residential Association Budget shall then be allocated among the Unit Owners in the same manner as provided in Section 5.2.6 of
this Residential Declaration. Except as may be determined by the Unit Owners on an annual basis: (i) no Unit Owner shall, by reason of such reduction, be entitled to a refund of all
or any portion of any Residential Association Assessment previously paid; and (ii) each Unit Owner hereby agrees that any amount assessed and collected in excess of the amount required
to meet the Residential Basic Expenses (other than Residential Reserve Expenses) shall be applied to reduce the amount assessed to meet the Residential Basic Expenses for the next succeeding
Fiscal Year or to the Reserve Account, as determined by the Residential Association Board. Any reduction in the amount of the Residential Association Budget, as provided herein, shall
not relieve any Unit Owner from his or her obligation to pay any past-due Residential Association Assessment.
Residential Association Assessment. The Residential Association Assessment shall commence as to each Unit on the date of the closing of escrow for the sale of the first Unit. The initial
Residential Association Assessment for each Unit acquired by a Non-Parcel Owner may be prorated between Parcel Owner and such Non-Parcel Owner as more particularly provided in the Purchase
Agreement for such Unit.
Payment of Residential Association Assessment and Taxes. The Residential Association Assessment and Taxes shall be paid as follows:
Residential Association Assessment. The Residential Association Assessment shall be paid as follows:
For any Fiscal Year in which a Non-Parcel Owner acquires a Unit, the Parcel Owner and such Non-Parcel Owner shall pay the Residential Association Assessment against such Unit in the
manner provided in the Purchase Agreement for such Unit.
For each Fiscal Year thereafter, each Non-Parcel Owner shall pay to the Residential Association the Residential Association Assessment with respect to each Unit which such Non-Parcel
Owner owns, either: (A) in one lump sum due on or before the date determined by the Residential Association Board; or (B) in installments payable no more frequently than monthly, as
determined by the Residential Association Board. Whether such Residential Association Assessment is paid through the method provided in (A) or (B) of the foregoing sentence shall be
at the Residential Association Board’s discretion.
The initial Residential Association Assessment for each Unit shall be one hundred and thirty dollars ($130.00) per month and shall be due and payable to the Residential Association on
or before the first day of each month. This includes payment of any late fee charges levied in the previous month (see paragraph 6.6.1.4 below). Checks returned for insufficient funds
(and/or "NSF") will be subject to a handling charge of $25 or up to the maximum allowed by law. For repeated delinquencies, and/or checks returned for insufficient funds, the Residential
Association Board is authorized to request payment in cashiers’ check, money order, or certified check.
Payment of condominium charges may be made via U.S. Mail or may be hand delivered to the Residential Association office or to the Front Desk. A dated receipt may be requested. A late
charge of $25.00 will be levied against delinquent Unit Owners if payment of the condominium charge or other assessment (including prior late charges) is not received by the 15th of
the month.
The Residential Association’s attorney will notify, in writing, delinquent unit Owners of the amount of delinquencies, late charges or other amounts due.
The Residential Association may send by U.S. Mail or hand delivery, a Notice of Intent to File a Lien to all Unit Owners delinquent more than 30 days, stating that if the account is
not paid in full within ten days, the account will be accelerated and the fiscal year's assessment for that unit will be declared due and payable and the account will be forwarded to
the Association’s attorney for collection. This letter may, to the extent practicable, suggest the type and amount of collection costs and charges that might be incurred by the Unit
Owner(s); such suggestion is in no way binding.
Any legal costs associated with the collection of condominium fees, assessments, or rules violation charges will be the responsibility of the Unit Owner. The attorney will inform the
delinquent Unit Owner of the intent to file a lien setting forth the amount delinquent, late charges, costs and attorney’s fees, as well as other charges, to be pursued and advising
that a Lien will be placed against the property if not paid within ten days. The attorney may initiate suit by the 60th day of delinquency. Any payments will be applied to the oldest
outstanding debt first. Foreclosures or other legal actions will be on a case-by-case basis as authorized in writing by the Residential Association Board.
In addition to all other rights that the Residential Association Board has for non-payment of regular or special assessments, which are more than sixty (60) days past due, the Residential
Association Board shall have the right, until the assessment has been paid, to suspend a Unit Owner’s voting rights and right to use facilities, such as recreational facilities, or
services, including utility services, such as water, provided directly through the Unit Owners’ association.
For each Fiscal Year in which there is no Subsidy Agreement, Parcel Owner shall pay the Residential Association Assessment with respect to each Unit owned by Parcel Owner to the Residential
Association in installments payable no more frequently than monthly, as determined by the Residential Association Board, commencing on January 1 of each Fiscal Year and continuing on
the first day of each month thereafter until paid; provided, however, that for any Fiscal Year in which a Non-Parcel Owner acquires such a Unit, the Parcel Owner and such Non-Parcel
Owner shall pay the Residential Association Assessment against such Unit for such Fiscal Year in the manner provided in the Purchase Agreement for such Unit.
That portion of the Residential Association Assessment which is attributable to: (A) reserve expenses shall be paid by the Residential Association to the Parcel Owner pursuant to this
Residential Declaration; and (B) Residential Reserve Expenses shall be deposited by the Residential Association in a Reserve Account as determined by the Residential Association Board.
Taxes. The Taxes shall be paid as follows:
For any Tax Year in which a Non-Parcel Owner acquires a Unit, the Taxes attributable to such Unit shall be payable by the Parcel Owner and Non-Parcel Owner in the manner provided in
the Purchase Agreement for such Unit, and for each Tax Year thereafter, the Taxes for such Unit shall be payable by the Non-Parcel Owner before delinquency;
For each Tax Year, the Taxes attributable to each Unit owned by Parcel Owner shall be payable by Parcel Owner before delinquency, provided, however, that for any Fiscal Year in which
a Non-Parcel Owner acquires such a Unit, the Parcel Owner and such Non-Parcel Owner shall pay the Taxes for such
Fiscal Year attributable to such Unit in the manner provided in the Purchase Agreement for such Unit; and
The Residential Association shall be responsible for the payment of its share of any Tax Assessment separately assessed and billed to the Parcel Owner by the County pursuant to this
Residential Declaration.
Special Assessments. If the Residential Association Assessments collected or to be collected for a particular Fiscal Year are, or will be, inadequate to meet all expenses incurred by
the Residential Association (other than for items constituting Personal Charges) for any reason, including, without limitation, nonpayment by any Unit Owner of any Residential Assessment
on a current basis, the Residential Association shall immediately determine the approximate amount of such inadequacy, prepare and distribute a supplemental Residential Association
Budget and levy against each Unit in accordance with the method for determining the Residential Association Assessment, a Special Assessment. Any Special Assessment shall be payable
in one lump sum or periodically, as determined by the Residential Association. Notwithstanding the foregoing, a Special Assessment against a Unit Owner or Unit Owners may not be imposed
without the prior approval of a majority of the Non-Parcel Owners, except for Special Assessments: (i) for payment of the portion of the Residential Declaration Assessments to be paid
by the Residential Association in accordance with this Residential Declaration; (ii) for the repair or rebuilding of a Unit which does not exceed ten percent (10%) of the budgeted gross
expenses of the Residential Association for the Fiscal Year in which the Special Assessment is levied; or (iii) against a Unit Owner or Unit Owners for the purpose of reimbursing the
Residential Association for costs incurred in bringing such Unit Owner or Unit Owners into compliance with provisions of the Governing Instruments.
Personal Charges.
Personal Charges are not Residential Assessments and the remedies available to the Residential Association against any Unit Owner for nonpayment of such Unit Owner’s Personal Charges
are those remedies provided in Section 7.1 of this Residential Declaration.
Personal Charges shall be paid by each Unit Owner to whom such Personal Charge relates.
Working Capital Contribution. In addition to certain other amounts due at the time of closing of the sale of a Unit, each Unit Owner, upon the initial purchase from Parcel Owner, hereby
agrees and acknowledges that it shall pay to the Parcel Owner a non-refundable working capital contribution (“Initial Contribution”) at the time it acquires a Unit from Parcel Owner
as a contribution to the Parcel Owner’s working capital fund in accordance with the following provisions:
The purpose of the Initial Contribution is to ensure that the Parcel Owner will have cash available for the operation of the Shared Facilities. The working capital funds for the Shared
Facilities may, but shall not be required to be maintained in a segregated account for the use and benefit of the Parcel Owner. Each Owner’s Initial Contribution amount shall be a sum
equal to three (3) monthly installments of the annual
Residential Association Assessment for its Unit. Each Owner’s Initial Contribution shall be collected and transferred to the Parcel Owner at the time of the closing of the sale of that
Unit from Parcel Owner. Interest on such Initial Contribution shall accrue to the benefit of the Parcel Owner. Each Owner’s obligation to pay the Initial Contribution shall be enforceable
in the same manner as payment of Residential Association Assessments. The Initial Contribution shall not be considered advance payment of any regular Residential Association Assessment.
No Initial Contribution shall be due or payable other than on the initial sale from Parcel Owner to a third-party purchaser of a Unit.
ENFORCEMENT OF RESTRICTIONS
In General.
In the event that any Unit Owner or Permitted User(s) should fail to comply with any of the provisions of the Governing Instruments, the Residential Association, the Parcel Owner, Apartment
Operator or any other Unit Owner(s) having the benefit of such provision, shall have full power and authority to enforce compliance with such Governing Instruments in any manner provided
for therein, by law or in equity, including, without limitation, the right to enforce such Governing Instruments, by bringing an action for damages, an action to enjoin the violation
or specifically enforce the provisions of such Governing Instruments, and with respect to any enforcement by the Residential Association, the Parcel Owner or Apartment Operator, to
enforce the liens provided for herein and any statutory lien provided by law, including the foreclosure of any such lien and the appointment of a receiver for a Unit Owner and the right
to take possession of the Unit of any Unit Owner in any lawful manner. In the event the Residential Association, the Parcel Owner, Apartment Operator or any Unit Owner(s) shall employ
an attorney to enforce, pursuant to this Section, the provisions of the Governing Instruments against any Unit Owner or Permitted User, the prevailing party shall be entitled to recover
from the Unit Owner or Permitted User violating any such provisions reasonable attorneys’ fees and costs in addition to any other amounts due as provided for herein.
All sums payable hereunder by a Unit Owner or Permitted User which become Delinquent shall bear interest at the Agreed Rate commencing on the date such payment becomes Delinquent or,
if advanced or incurred by the Residential Association, or any other Unit Owner or Permitted User pursuant to authorization contained in this Residential Declaration, commencing thirty
(30) days after repayment is requested.
Each Unit Owner or Permitted User who becomes Delinquent in the payment of any amount due the Residential Association or the Parcel Owner shall pay to the Residential Association or
the Parcel Owner, as the case may be, a late charge of five percent (5%) of the delinquent amount, or such other amount as may be determined by the Residential Association Board or
the Parcel Owner, as the case may be, from time-to-time, for each payment which is Delinquent.
All enforcement powers of the Residential Association or the Parcel Owner shall be cumulative. Each Unit Owner accepting the conveyance of, and each Permitted User occupying, a Unit
shall be deemed to have covenanted and agreed that the Residential Association and the Parcel Owner shall have all of the rights, powers and remedies set forth in this Article VII and
elsewhere in this Residential Declaration.
Certain Specific Enforcement Powers. In amplification of, and not in limitation of, the general powers specified in Section 7.1 of this Residential Declaration, the Residential Association
shall have the following rights and powers (and the Parcel Owner shall have such rights and powers in connection with Section 5.2.6.2):
Enforcement by Lien. Subject to the provisions of Section 7.3 of this Residential Declaration, there shall be a lien upon the applicable Unit for all unpaid Residential Assessments,
together with late fees, interest and costs (including attorneys’ fees) charged pursuant to this Residential Declaration and the Act. The lien for unpaid Residential Assessments and
related charges shall be effective upon recordation in the Office of the County Recorder of a written notice of lien by the Residential Association Board or the Residential Association
Manager. The written notice of lien shall set forth the amount of the Residential Assessment, the date(s) due, the amount remaining unpaid, the name of the Unit Owner of the Unit and
a description of the Unit. No notice of lien shall be recorded until there is a delinquency in payment of the Residential Assessment. Such lien may be enforced by sale or foreclosure
conducted in accordance with the provisions of law applicable to the exercise of powers of sale or foreclosure in deeds of trust or mortgages or in any other manner permitted by law.
In any such foreclosure, the Unit Owner shall be required to pay the costs and expenses of such proceeding (including reasonable attorneys’ fees), and such costs and expenses shall
be secured by the lien being foreclosed. The Unit Owner shall also be required to pay to the Residential Association any Residential Assessments against the Unit which shall become
due during the period of foreclosure, and all such Residential Assessments shall be secured by the lien being foreclosed. The Residential Association Board shall have the right and
power on behalf of the Residential Association to bid in at any foreclosure sale and to hold, lease, mortgage or convey the subject Unit in the name of the Residential Association.
In furtherance of such foreclosure rights, the Residential Association may bring an action at law against the Unit Owner personally obligated to pay the same or the Residential Association
may foreclose the lien in accordance with the provisions of the Act. The Parcel Owner, the Residential Association and each Unit Owner hereby appoint Coalition Title Agency as trustee
for the purpose of exercising the power of sale in connection with any non-judicial foreclosures of the Units as provided in the Act; provided, however, the Residential Association
reserves the right to substitute and appoint a successor trustee as provided for in the Act. Each Unit Owner hereby conveys all of its right, title and interest in its Unit to such
trustee, in trust, with a power of sale, for the sole purpose of securing each Unit Owner’s obligations under this Residential Declaration, including but not limited to the obligation
to pay all Residential Assessments. The Residential Association may, through its duly authorized agents, bid on the Unit at any foreclosure sale and acquire, hold, lease, mortgage
and convey the same. The lien procedures described herein do not prohibit actions to recover sums for which the Act creates a lien or prohibits the Residential Association from taking
a deed in lieu of foreclosure. The Residential Association and each Unit Owner
acknowledge and agree that a lender holding a first position lien on the Apartment Parcel, or a subsequent purchaser succeeding to the rights of such lender, may, if the lender’s loan
documents so allow, succeed to all of the right, title and interest of the Parcel Owner, as “Declarant” or “Parcel Owner” under this Residential Declaration by recording a certificate
in the official records of Madison County, Idaho stating that such lender or subsequent purchaser has so elected. The certificate shall conclusively establish that such lender or subsequent
purchaser, and any person claiming by or through them, is the “Declarant” or the “Parcel Owner” for purposes of this Residential Declaration, as applicable. The recording of such certificate
shall not require the consent, approval or joinder of the Residential Association or any Unit Owner.
The proceeds of any foreclosure, trustee’s or judgment sale provided for in this Residential Declaration shall first be paid to discharge court costs, court reporter charges, reasonable
attorneys’ fees, title costs and costs of the sale, and all other expenses of the proceedings and sale, and the balance of the proceeds, after satisfaction of all charges, monetary
penalties and unpaid Residential Assessments hereunder or any liens, and subject to the rights of any Mortgagee, shall be paid to the defaulting Unit Owner. The purchaser at any such
sale shall obtain title to the Unit after the expiration of any applicable period of redemption free from the sums or performance claimed, except as stated in this Section, but otherwise
subject to the provisions of the Governing Instruments, and no such sale or transfer shall relieve such Unit or the purchaser thereof from liability for any Residential Assessments,
Taxes, other payments or performance thereafter becoming due or from the lien therefor as provided for in this Section. All sums assessed hereunder but still unpaid shall remain the
obligation of and shall be payable by the person foreclosed upon; but if such sum should prove uncollectible, then it shall be deemed to be a Residential Basic Expense, collectable
from all of the other Unit Owners, including the purchaser thereof at foreclosure, and shall be shared among such Unit Owners in the same manner as other Residential Basic Expenses
are shared. Upon the timely curing of any default for which a notice of default or claim of lien was filed by the Residential Association, the officers of the Residential Association
are hereby authorized to record an appropriate release of such lien in the Office of the County Recorder.
In addition to the foregoing, after providing notice and an opportunity to cure in accordance with the Act, the Residential Association and the Parcel Owner may assess fines in accordance
with and up to the maximum amount allowable under the Act.
Subordination to Certain Encumbrances. The lien in favor of the Residential Association as provided for herein shall be prior to all encumbrances made by a Unit Owner or imposed by
legal process upon any Unit Owner except: (i) taxes, bonds, assessments and other levies which by law are prior thereto; (ii) the lien of any First Mortgage whether the notice of lien
is recorded prior or subsequent to any such First Mortgage, and (iii) the lien of the Parcel Owner in connection with Section 5.2.6.2. The sale or transfer of any Unit, including foreclosure
of a First Mortgage, shall not defeat or affect the lien provided for herein. No such sale or transfer shall relieve such Unit or the purchaser thereof from liability for any Residential
Assessment(s) thereafter becoming due or from the lien thereof.
Waiver of Homestead Exemption. Each Unit Owner hereby agrees that neither Parcel Owner’s nor any Residential Association’s rights or remedies nor any Unit Owner’s obligations under
the terms of any of the Governing Instruments shall be released, diminished, impaired, reduced or affected by, and the liability of each Unit Owner under the Governing Instruments shall
be absolute and unconditional irrespective of, any homestead exemption or any other exemption under applicable law. Each Unit Owner hereby expressly waives all homestead exemption
rights and rights under any other exemption under applicable law against the obligations of each Unit Owner pursuant to the Governing Instruments.
RESIDENTIAL ASSOCIATION AS ATTORNEY-IN-FACT
Appointment. Each and every Unit Owner hereby irrevocably constitutes and appoints the Residential Association as such Unit Owner’s true and lawful attorney-in-fact in such Unit Owner’s
name, place and stead for the purpose of dealing with the Residential Condominium Property upon its damage, destruction or condemnation as provided below in ARTICLE IX. In addition,
the Residential Association, or any insurance trustee or substitute insurance trustee designated by the Residential Association, is hereby appointed as attorney-in-fact under this Residential
Declaration for the purpose of purchasing and maintaining insurance under ARTICLE XI, including: (i) the collection and appropriate disposition of the proceeds of such insurance; (ii)
the negotiation of claims and the execution of releases of liability; (iii) the execution of all documents; and (iv) the performance of all other acts necessary to accomplish such purpose.
The Residential Association, or any insurance trustee, shall hold or otherwise properly dispose of any insurance proceeds in trust for the Unit Owners and their Mortgagees, as their
interests may appear. Acceptance by a grantee of an Original Deed or other instrument of conveyance from Parcel Owner or from any Unit Owner shall constitute appointment of the attorneys-in-fact
as provided above. If the Residential Association Board fails to so approve any exercise of authority as attorney-in-fact, the Residential Association shall have such authority as
it may have pursuant to the Act. Each Unit Owner’s appointment of the Residential Association as attorney-in-fact as provided herein is a power coupled with an interest, and no further
document or instrument is necessary to evidence the Residential Association’s appointment.
General Authority. As attorney-in-fact, the Residential Association shall have full and complete authority, right and power to make, execute and deliver any contract, assignment, deed,
waiver or other instrument with respect to the interest of any Unit Owner which may be necessary or appropriate to exercise the powers granted to the Residential Association as attorney-in-fact.
DAMAGE, DESTRUCTION, OR CONDEMNATION
In General. In the event of any damage or destruction other than by normal wear and tear, whether resulting from an insured or uninsured casualty, to all or any portion of the Residential
Condominium Property or other personal property owned by the Residential Association, the Residential Association shall promptly cause such to be repaired, restored or replaced as near
as may be possible to its condition immediately prior to such damage or destruction. The Residential Association Board may levy a Repair Assessment on all of the Unit
Owners in accordance with the method set forth below for the amount required to make up any deficiencies between the total insurance proceeds and the contract price for such repair (the
“Shortfall”):
Shortfall Per Unit. For each Unit, the Repair Assessment and any Shortfall against such Unit shall be based upon the Percentage Ownership Interest appurtenant to such Unit.
Exceptions. Notwithstanding Section 9.1.1 above, if the loss, damage or destruction was caused by the intentional or negligent act, or failure to act, of any Unit Owner or such Unit
Owner’s Permitted User(s), the cost of such repair shall be a Personal Charge of, and be paid by, such Unit Owner as provided in Section 6.8 of this Residential Declaration to the extent
such loss, damage or destruction is not covered by insurance. All insurance monies recovered on account of such damage or destruction, less the cost, if any, of such recovery, shall
be applied to the payment of the cost of repairing, and shall be paid out from time-to-time by the Residential Association Board as such work progresses.
Taking of All of Personal Property of Residential Association. In the event all the personal property owned by the Residential Association is taken under the power of eminent domain,
that portion of the condemnation award which is paid to the Residential Association on account of the taking of such personal property shall be divided among and distributed to the
Unit Owners (subject to rights of Mortgagees). The proportionate interest of each Unit Owner in such proceeds shall be equal to the Percentage Ownership Interest appurtenant to such
Unit Owner’s Unit.
Partial Taking of Personal Property of Residential Association. In the event of a partial taking of personal property owned by the Residential Association, all condemnation awards shall
be paid to the Residential Association. The Residential Association shall use all amounts awarded to it on account of such taking to repair or restore the remaining personal property
owned by the Residential Association as nearly as may be possible to its condition immediately prior to such taking, or if that is not reasonably possible, to acquire and improve other
personal property to replace the property or portions of the personal property which were taken; provided, however, that the Residential Association shall not be obligated to replace
such personal property if seventy-five percent (75%) or more of the voting power of the Residential Association elects to distribute the condemnation award rather than make such replacement,
in which case it shall be disbursed to each Unit Owner (subject to the rights of Mortgagees). If the Residential Association Members do not elect, within sixty (60) days after the
taking of the personal property, to distribute the condemnation award, the Residential Association Board shall proceed with such repair and restoration and the acquisition and improvement
of new personal property, and may levy a Special Assessment on the Unit Owners in accordance with Section 6.7 to raise any funds needed for such purpose in excess ‘of the condemnation
award. If the Residential Association Members do not approve such Special Assessment, if such approval is required, the Residential Association Board shall perform such repair and
restoration work and make such acquisitions as are possible with the available funds.
Taking of Units. In the event of a taking of some or all of the Units, those Unit Owners whose Units are taken shall be entitled to retain (subject to the rights of Mortgagees and
any unpaid Residential Assessments) the award made to them for such taking, and any such award shall be paid only to such Unit Owners. The Residential Association shall, within ninety
(90) days after the taking, cause an amended Condominium Plat to be prepared depicting the new configuration of the Units and the revised number of Units, and shall prepare an amendment
to this Residential Declaration to be executed by all Unit Owners, Mortgagees, and other persons or entities required by law to execute such documents, and record such amendments in
the Office of the County Recorder, and all Unit Owners and Mortgagees hereby agree, and such other persons or entities are deemed to agree, to execute all such documents. Upon the
taking of a Unit, the Percentage Ownership Interests appurtenant to the remaining Units shall be reallocated in accordance with the Act.
No Limitation of Remedies. Nothing contained in this Article IX shall be deemed to limit the right of a Unit Owner to pursue all available legal remedies and obtain all compensation
to which such Unit Owner may be entitled by reason of the taking of or damage to his or her Unit.
Damage/Destruction of Apartment; Parcel Owner’s Right to Purchase; Casualty Purchase Right. The Residential Association and each Unit Owner acknowledge and agree that, in the event
of a casualty event causing damage or destruction to the Insured Property (as defined in this Residential Declaration), the determination to reconstruct, repair or restore the Insured
Property shall be governed by and be subject to this Residential Declaration.
PROTECTION OF MORTGAGEES
Conflict. The provisions and requirements of this ARTICLE X and any other provisions and requirements of this Residential Declaration relating to the rights of Mortgagees: (1) shall
prevail over any conflicting provisions of this Residential Declaration, the Residential Articles or the Residential Bylaws; and (ii) are in addition to any other provisions of this
Residential Declaration.
Application of Residential Assessments. No Mortgagee shall be liable for the payment of Residential Assessments against any Unit, except those accruing after such Mortgagee obtains
title to such Unit pursuant to its remedies under its Mortgage.
Subordination of Residential Assessment Lien. The lien of any Residential Assessment created under this Residential Declaration which arises before the time at which a Mortgagee obtains
title to the mortgaged property shall be subordinate to the lien of the First Mortgage held by the Mortgagee. However, the sale or transfer of title to property by deed, assignment
or conveyance in lieu of foreclosure, or any other voluntary conveyance of title, shall not relieve: (i) a Unit Owner or its grantee or other successors and assigns (whether as a result
of a foreclosure or deed-in-lieu of foreclosure or otherwise, but specifically excluding any Mortgagee itself or Parcel Owner, or an affiliate of Parcel Owner, with respect to any Unit
it, or such affiliate, reacquires after the initial conveyance of such Unit by Parcel Owner) from liability from any charges or assessments hereunder which become due and payable before
such sale or transfer; or (ii) Unit Owner or its grantee or other successors and assigns from liability from any charges or assessments hereunder which thereafter become due and payable,
as the case may be.
Limitation of Enforcement Against Mortgagees. No violation of this Residential Declaration by a Unit Owner or enforcement of this Residential Declaration against a Unit Owner shall
impair, defeat or render invalid the lien of any Mortgage against the Unit Owner’s property, but this Residential Declaration shall be enforceable against any Unit Owner whose title
is acquired by foreclosure, trustee’s sale, voluntary conveyance, or otherwise.
Notice by Mortgagees. All persons and entities holding a Mortgage affecting any portion of the Residential Condominium Property shall give written notice to the Residential Association
Board of the nature of their interests in the Residential Condominium Property, as well as the recording information pertaining to all deeds of trust, mortgages and other security instruments
encumbering property in the Residential Condominium Property, and the amount of indebtedness secured by any such deed of trust, mortgage or security instrument. Any person who has
not given the notice required by this Section shall not be entitled to the rights of a Mortgagee accorded by this Residential Declaration.
Notice. All Mortgagees are entitled, upon written request and after furnishing their addresses in writing to the Residential Association Manager, to receive written notice from the
Residential Association Manager of any default by a Unit Owner under this Residential Declaration which is not cured within thirty (30) days after written notice of such default is
given by the Residential Association or the Residential Association Manager to the defaulting Unit Owner(s).
INSURANCE
Residential Association. The Residential Association shall have the power and duty to obtain and pay the cost of:
Damage to Property. On and after the Starting Date, insurance against loss or damage to the Residential Condominium Property, against loss or damage by fire, lightning, windstorm, and
all other risks covered by the usual Special Form policy form, all in an amount not less than one hundred percent (100%) of the full replacement cost thereof, as determined annually.
The policy shall not contain a coinsurance provision or shall be amended with a waiver of coinsurance or the Agreed Value endorsement. The deductible shall not exceed $10,000. Business
interruption insurance covering gross earnings and necessary continuing expenses in connection with this Residential Declaration, for interruptions caused by any occurrence covered
by the insurance referred to above and providing coverage for the actual loss sustained.
General Liability Insurance. Commercial General Liability insurance providing coverage against claims brought by third parties against Residential Association, its officers, directors,
members, managers, or employees for (a) death or bodily injury, (b) property damage, (c) personal and advertising injury (d) contractual liability (e) products/completed operations
liability and (f) liquor legal liability arising out of the selling or service of liquor, with minimum limits of One Million Dollars ($1,000,000) per each occurrence with a general
aggregate limit of not less than Two Million Dollars ($2,000,000).
Business Auto Liability Insurance. Business Auto Liability policy providing coverage against claims for bodily injury and property damage brought by third parties against the Residential
Association, its officers, directors, members, managers, or employees and shall include all owned, non-owned and hired vehicles for combined single limit of not less than One Million
Dollars ($1,000,000) each accident.
Workers’ Compensation Insurance. The Residential Association shall obtain and maintain workers’ compensation insurance and Employer’s Liability Insurance in amounts not less than One
Million Dollars ($1,000,000) per accident/disease for employees, if any, of the Residential Association to the extent required by Applicable Law. The Residential Association shall
require independent contractor who performs any service for the Residential Association to carry statutory workers compensation coverage and Employer’s Liability Insurance in the same
amounts as shown above. Such independent contractor’s insurance policy shall provide a waiver of subrogation in favor of the Residential Association, its officers, directors, members,
managers, or employees.
Directors’ and Officers’ Liability Insurance. The Residential Association shall obtain and maintain directors’ and officers’ liability insurance for officers and directors of the Residential
Association containing such terms and conditions as are normally and customarily carried for directors and officers of a high-rise development in the City. The limits of such insurance
shall be not less than One Million Dollars ($1,000,000).
Commercial Crime Insurance. The Residential Association shall obtain and maintain a commercial crime policy to include employee theft or forgery, loss of money and securities inside
and outside the premises, money orders and counterfeit currency, forgery, computer and funds transfer fraud in amounts not less than $1,000,000 for each specified coverage section.
The policy shall insure against loss by reason of the acts of the Residential Association’s Board, officers and employees of the Residential Association, and any managing agent and
its employees, whether or not such persons are directly compensated for their services.
Other Residential Association Insurance. The Residential Association shall obtain and maintain such other insurance, as the Residential Association Board, in its discretion, considers
necessary or advisable, or as is required by Applicable Laws.
General Requirements. All insurance policies obtained by the Residential Association hereunder shall comply with all requirements imposed under this Residential Declaration and, in
addition, all liability policies obtained by the Residential Association shall name all Unit Owners (as a class), Parcel Owner (individually), the Residential Association Manager (individually)
and any holder of a first-priority Mortgage encumbering the Apartment that Parcel Owner designates by written notice to the Residential Association, as additional insureds, in each
case as their interests may appear. Each liability insurance policy shall contain appropriate waivers of subrogation against Parcel Owner and any Unit Owner or member of such owner’s
household, and a provision that no act or omission by a Unit Owner, unless acting within the scope of his or her
authority on behalf of the Residential Association, will void such policy or operate as a condition to recovery by any other person under such policy.
Insurance Obtained by Parcel Owner. Because the Buildings and all structural and mechanical systems that do not comprise part of the Units are owned by the Parcel Owner, the Residential
Association and each Unit Owner, by accepting an Original Deed or otherwise acquiring title to a Unit, acknowledge that the insurance against loss or damage to the Buildings by fire
or other hazards required to be obtained and maintained by the Residential Association under the Act is, pursuant to this Residential Declaration, being obtained and maintained by the
Parcel Owner in accordance with this Residential Declaration. In the event the Parcel Owner fails to provide such insurance as provided in this Residential Declaration, the Residential
Association shall obtain and maintain such insurance.
Unit Owners. Each Unit Owner shall have the obligation and duty to obtain, maintain and pay the cost of the insurance policies described below. All liability insurance policies obtained
by a Unit Owner hereunder shall name Parcel Owner as an additional insured and any Mortgagee under a First Mortgage encumbering such Unit Owner’s Unit as an additional insured, as their
interests may appear.
Damage to Owner Personal Property. On and after the Starting Date, insurance against loss or damage to any personal property or F&E contained in the Unit Owner’s Unit, by fire and other
risks and hazards customarily covered by an insurance policy written on a Special Form basis.
Burglary and Theft – Personal Property. On and after the Starting Date, insurance against hazards such as burglary and theft covering all personal property and F&E contained within
a Unit Owner’s Unit.
Liability Insurance. On and after the Starting Date, each Unit Owner, at his or her sole expense, shall cause to be obtained and continually maintained comprehensive public liability
insurance against claims for personal injury, bodily injury, death and property damage occasioned by accidents occurring in his or her Unit in such amounts as such Unit Owner deems
appropriate.
INTENTIONALLY OMITTED
BINDING ARBITRATION FOR ENFORCEMENT
OF RESIDENTIAL ASSOCIATION GOVERNING INSTRUMENTS
OPT-OUT RIGHT. IF A UNIT OWNER DOES NOT WANT THE FOLLOWING ARBITRATION PROVISION TO APPLY, SUCH OWNER MUST SEND A SIGNED LETTER TO THE RESIDENTIAL ASSOCIATION, ATTENTION: ARBITRATION
OPT-OUT, POSTMARKED WITHIN THIRTY (30) DAYS OF THE DATE THE ORIGINAL DEED OF
CONVEYANCE TRANSFERRING THE UNIT IS RECORDED IN THE OFFICIAL RECORDS OF MADISON COUNTY, IDAHO, STATING THAT THE OWNER DOES NOT WANT ARBITRATION TO APPLY TO THE MATTERS DESCRIBED IN THIS
ARTICLE XIII. ANY DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL NOT RESULT IN AN OPT-OUT FROM ANY PRIOR ARBITRATION PROVISION IN ANY OTHER RESIDENTIAL ASSOCIATION GOVERNING
INSTRUMENT AND WILL NOT BE A FACTOR IN PARCEL OWNER’S DECISION OF WHETHER OR NOT TO CONVEY, TRANSFER OR SELL THE UNIT TO SUCH UNIT OWNER.
Arbitration Terms Defined. Capitalized words, phrases or terms used in this Article XIII (“Arbitration Provision”) that are not defined in this ARTICLE XIII shall have the meanings
set forth in the Master Definitions attached hereto as Exhibit C.
Claims by Bound Parties. Subject to a Unit Owner’s right to opt out of this Arbitration Provision, each Bound Party agrees that, upon the election of any Bound Party asserting or defending
a Claim (other than an Exempt Claim), such Claim shall be resolved by binding individual (and not class) arbitration. A notice of an election to arbitrate a Claim may be given after
a lawsuit begins and may be given in papers filed in the lawsuit. Any arbitration will be conducted in accordance with this Arbitration Provision and, to the extent consistent with
this Arbitration Provision, the rules of the Administrator in effect at the time the Claim is filed.
Arbitration Fees. If a Unit Owner cannot obtain a waiver of any arbitration fees, the Institutional Parties will consider in good faith any request a Unit Owner submits for them to
pay fees for such Unit Owner. In any event, if applicable law requires an Institutional Party to pay or reimburse a Unit Owner for any such fees, such law will control. Each Bound
Party shall bear the costs and expenses of that Bound Party’s attorneys, experts, and witnesses, regardless of which Bound Party prevails in the arbitration, unless applicable law and/or
this Arbitration Provision gives a Bound Party the right to recover any of those costs and expenses from any other Bound Party.
Governing Law. The Bound Parties contract, agree and acknowledge that this Arbitration Provision shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the “FAA”) and not
state arbitration laws. The arbitrator shall be obligated to follow applicable substantive laws, statutes of limitations and privilege rules related to any dispute. Subject to the
provisions of this Section, the arbitrator shall award the remedies. if any, that would be available in an individual court proceeding if arbitration had not been elected. This includes,
without limitation, compensatory and statutory damages; declaratory, injunctive and other equitable relief; and attorneys’ fees and costs. In no event whatsoever shall a Bound Party
be liable to another Bound Party for, and each Bound Party waives, releases and covenants not to sue or make demand for any consequential damages or punitive damages. In addition to
the rights of a Bound Party to obtain information under the Administrator’s rules, a Bound Party may ask the arbitrator for more information from any other Bound Party.
Appeal of Arbitrator’s Decision. Any court with jurisdiction may enter judgment upon the arbitrator’s award. The arbitrator’s decision will be final and binding, except for any appeal
right under the FAA. However, for Claims involving more than $100,000.00, any Bound Party may appeal the award to a three-arbitrator panel appointed by the Administrator, which will
reconsider from the start any aspect of the initial award that is appealed. The panel’s decision will be final and binding, except for any appeal right under the FAA. Unless applicable
law provides otherwise, the appealing Bound Party will pay the costs and expenses of pursuing the appeal, regardless of its outcome. However, the Institutional Parties to such an appeal
will consider in good faith any reasonable written request for them to bear such costs and expenses if the Unit Owner is the appealing Bound Party.
Binding Individual Arbitration. IF A BOUND PARTY ELECTS TO ARBITRATE A CLAIM: (i) NO BOUND PARTY WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR HAVE A JURY DECIDE THE CLAIM;
(ii) NO BOUND PARTY MAY PARTICIPATE IN A CLASS ACTION IN COURT OR IN CLASS-WIDE ARBITRATION, EITHER AS A REPRESENTATIVE, CLASS MEMBER OR OTHERWISE; (iii) NO BOUND PARTY MAY PARTICIPATE
IN A PRIVATE ATTORNEY GENERAL PROCEEDING IN COURT OR IN THE ARBITRATION; AND (iv) THE ARBITRATOR SHALL HAVE NO AUTHORITY TO CONDUCT A CLASS-WIDE ARBITRATION OR PRIVATE ATTORNEY GENERAL
ARBITRATION. Notwithstanding any language in this Arbitration Provision to the contrary, any dispute about the validity or effect of the prohibitions against class proceedings and
private attorney general proceedings in this Arbitration Provision shall be resolved by a court and not an arbitrator or the Administrator.
Severability. If a determination is made that any part of this Arbitration Provision is unenforceable (other than the prohibition against class proceedings and private attorney general
proceedings) or that this Arbitration Provision is unenforceable as to any party or parties, this provision shall nonetheless remain enforceable in all other respects and as to all
other parties. If after all available appeals a determination is made that the prohibition against class proceedings or private attorney general proceedings is unenforceable in connection
with any Claim brought on such basis, this Arbitration Provision (other than this sentence) shall be null and void with respect to such Claim.
Notice of Claim; Right to Address. Prior to asserting a Claim, the Bound Party with the Claim shall give the Bound Party that is the subject of the Claim written notice of the Claim
and a reasonable opportunity, not less than thirty (30) days, to resolve the Claim. The claimant’s claim notice must include the claimant’s name, address and telephone number. Any claim
notice must explain the nature of the Claim and the relief that is demanded. A claimant may only submit a claim notice on his or her own behalf and not on behalf of any other party.
The claimant must reasonably cooperate in providing any information about the Claim that the other Bound Party reasonably requests. If: (i) a claimant submits a claim notice in accordance
with this Section on his or her own behalf (and not on behalf of any other party); (ii) the Institutional Party refuses to provide the requested relief; and (iii) an arbitrator subsequently
determines that the claimant was entitled to such relief (or greater relief), the arbitrator shall award the claimant at least $7,500 (not including any arbitration fees and attorneys’
fees and costs to which the claimant may be entitled under this Arbitration Provision or applicable law).
ALLEGED DEFECTS
Intention. It is Parcel Owner’s intent that all Buildings and improvements of every type and kind which may be installed by Parcel Owner as part of the Condominiums, including the fixtures
in the Units and Shared Facilities within the Project (collectively, the “Initial Improvements”) shall be of a quality that is consistent with construction and development practices
for a project of this type. Nevertheless, due to the complex nature of construction and the subjectivity involved in evaluating such quality, disputes may arise as to whether a defect
exists and Parcel Owner’s responsibility therefor. It is Parcel Owner’s intent to resolve all disputes and claims regarding “Alleged Defects” (as defined below) amicably, and without
the necessity of time consuming and costly litigation. Accordingly, all Unit Owners and the Residential Association, as well as the Residential Association Board shall be bound by
the claim resolution procedure set forth in this ARTICLE XIV.
Parcel Owner’s Right to Cure. If the Residential Association, the Residential Association Board, or any Unit Owner (collectively, “Claimant”) claims, contends, or alleges that any portion
of a Unit and/or any Initial Improvements are defective or incomplete, or that Parcel Owner or its agents, consultants, contractors or subcontractors were negligent in the planning,
design, engineering, grading, construction or other development thereof (collectively, an “Alleged Defect”), Parcel Owner hereby reserves the right to inspect, cure, repair and/or replace
such Alleged Defect as set forth herein.
Notice to Parcel Owner. If a Claimant discovers an Alleged Defect, Claimant shall, within a reasonable time after discovery, notify Parcel Owner, in writing, at the address provided
in Section 15.3 of this Residential Declaration, or such other address at which Parcel Owner maintains its principal place of business, of the specific nature of such Alleged Defect
(“Notice of Alleged Defect”).
Right to Enter; Inspect, Cure and/or Replace. Immediately after the receipt by Parcel Owner of a Notice of Alleged Defect or the independent discovery of an Alleged Defect by Parcel
Owner or any governmental agency, and for a reasonable time thereafter, as part of Parcel Owner’s reservation of right, Parcel Owner shall have the right, upon reasonable notice to
Claimant and during normal business hours, to enter onto or into, as applicable, any Unit, the Residential Condominium Property, the Shared Facilities and/or any Initial Improvements
for the purposes of inspecting and, if deemed necessary by Parcel Owner, curing, repairing and/or replacing the Alleged Defect. In conducting such inspection, cure, repairs and/or
replacement, Parcel Owner shall be entitled to take any actions as it shall deem reasonable and necessary under the circumstances.
Legal Actions. No Claimant shall initiate any legal action, cause of action, proceeding or arbitration against Parcel Owner alleging damages (a) for the costs of curing, repairing,
or replacing any Alleged Defect, (b) for the diminution in value of any real or personal property resulting from such Alleged Defect or (c) for any consequential damages resulting from
such Alleged Defect, unless and until Claimant has (i) delivered to Parcel Owner a Notice of Alleged Defect and (ii) Parcel Owner has, within 120 days after its receipt of the Notice
of Alleged Defect, either (1) failed to cure, repair or replace the Alleged Defect or (2) if the Alleged Defect cannot reasonably be cured, repaired or replaced within such 120 day
period, failed to commence such cure, repair or replacement of the Alleged Defect and, thereafter, failed to pursue diligently such cure, repair or replacement to completion. During
any such period while Parcel Owner is
diligently pursuing to completion the cure, repair or replacement of the Alleged Defect, Claimant shall not stop, restrict, hinder, interrupt or otherwise interfere with any reasonable
action or activity taken by Parcel Owner, its employees, agents, or independent contractors, to inspect, cure, repair or replace the Alleged Defect, whether or not such action or activity
is taken, or is proposed to be taken, on property owned by Claimant. In the event Parcel Owner fails and/or refuses to cure an Alleged Defect or commence cure and diligently pursue
such cure within the 120-day period provided above, each Claimant agrees and acknowledges that all disputes regarding an Alleged Defect shall be resolved in the manner and under the
terms and conditions provided in ARTICLE XIII.
No Additional Obligations; Irrevocability and Waiver of Rights. Nothing set forth in this ARTICLE XIV shall be construed to impose any obligation on Parcel Owner to inspect, cure, repair
or replace any item or Alleged Defect for which Parcel Owner is not otherwise obligated to do under applicable law or any limited warranty provided by Parcel Owner in connection with
the sale of the Units and/or the Initial Improvements constructed thereon, nor shall anything set forth in this ARTICLE XIV constitute an express or implied representation, warranty
or guarantee by Parcel Owner concerning any Initial Improvements or the Condominiums. The right of Parcel Owner to enter, inspect, cure, repair and/or replace reserved hereby shall
be irrevocable and may not be waived and/or terminated except by a writing, in recordable form, executed and recorded in the Official Records by Parcel Owner.
MISCELLANEOUS PROVISIONS
Amendment. This Residential Declaration may be amended as set forth below:
Except as otherwise provided elsewhere in this Residential Declaration, any amendment to this Residential Declaration or the Condominium Plat shall require the affirmative vote of at
least sixty-seven percent (67%) of the total voting power of the Residential Association cast in person or by proxy at a meeting duly called for such purpose or otherwise approved in
writing by such Unit Owners without a meeting; provided, however, that the Unit Owners and the Residential Association shall have no authority to amend or alter the Condominium Easement
Rights granted by Parcel Owner or property owned or controlled by the Parcel Owner, or to amend any provision in this Residential Declaration governing or relating to the ownership
or operation of the Apartment Parcel, the Apartment or Condominiums without the written consent of the Parcel Owner. Any amendment authorized pursuant to this subsection shall be accomplished
through the recordation in the Office of the County Recorder of an instrument executed by the Residential Association. In such instrument an officer or trustee of the Residential Association
shall certify that the vote required by this subsection for amendment has occurred.
Parcel Owner alone may amend or terminate this Residential Declaration prior to the Starting Date. Notwithstanding anything contained in this Residential Declaration to the contrary,
this Residential Declaration and the Condominium Plat may
be amended unilaterally at any time and from time-to-time by Parcel Owner: (a) if such amendment is necessary to bring any provision hereof into compliance with any applicable governmental
statute, rule, or regulation or judicial determination which shall be in conflict therewith; (b) to make technical corrections to fix mistakes or remove/clarify ambiguities; or (c)
if such amendment is reasonably necessary to enable a title insurance company to issue title insurance coverage with respect to the Condominiums or any Unit.
Anything in this Residential Declaration to the contrary notwithstanding, Parcel Owner also reserves the unilateral right to amend all or any part of this Residential Declaration to
such extent and with such language as may be requested by a State Department of Real Estate (or similar agency), FHA, VA, the FHLMC or FNMA, and to further amend to the extent requested
by any other federal, state or local governmental agency which requests such an amendment as a condition precedent to such agency’s approval of this Residential Declaration or approval
of the sale of Units, or by any federally chartered lending institution as a condition precedent to lending funds upon the security of any Unit(s) or any portions thereof. Any such
amendment shall be affected by the recordation by Parcel Owner of an amendment duly signed by Parcel Owner, specifying the nature of the qualifying reason for such amendment pursuant
to this Section 15.1. Recordation of such an amendment shall be deemed conclusive proof of the agency’s or institution’s request for such an amendment, and such amendment, when recorded,
shall be binding upon all Units and all persons having an interest therein. It is the desire of Parcel Owner to retain control of the Residential Association and its activities during
the Period of Parcel Owner Control If any amendment requested pursuant to the provisions of this Section 15.1 deletes, diminishes or alters such control, Parcel Owner alone shall have
the right to amend this Residential Declaration to restore such control.
Notwithstanding anything contained in this Residential Declaration to the contrary, Parcel Owner reserves the right to unilaterally amend the Condominium Plat at any time and from time-to-time
by Parcel Owner if such amendment is necessary to make technical corrections, to satisfy the requirements of any governmental authority, to correct mistakes, remove/clarify ambiguities
or to accurately reflect the “as-built” Units on the Condominium Plat.
Any amendment under the provisions of this Section 15.1 shall be binding upon every Unit Owner and every Unit whether the burdens thereon are increased or decreased, and such amendment
shall be effective upon its recordation in the Office of the County Recorder.
Concurrent with or subsequent to completing a withdrawal of a Unit from the condominium regime created by this Residential Declaration in accordance with Section 3.3.5 or expansion of
the Residential Condominium Property in accordance with Section 3.3.6, Parcel Owner may, without the consent of the Residential Association Board or the Residential Association Members,
amend this Residential Declaration and the Condominium Plat for the purpose of revising or deleting any provisions or exhibits herein rendered inaccurate as a result of such withdrawal
or expansion, or adding, deleting or revising related provisions or exhibits necessary to effectuate such withdrawal or expansion.
Notwithstanding the foregoing or anything herein to the contrary, this Residential Declaration may not be amended without the consent of any lender holding a first position lien on
the Apartment Parcel to the extent such lender has the right to approve any amendment to this Residential Declaration in the governing loan documents for such loan.
Termination.
Consent. Subject to the provisions of ARTICLE IX of this Residential Declaration, this Residential Declaration shall remain in effect from the date of recordation hereof until such
time as it is terminated. This Residential Declaration may be terminated at any time after the date of recordation of this Residential Declaration by approval of the Unit Owners in
accordance with the Act and authorizing the Residential Association, as trustee for all Unit Owners, to sell the interests of the Unit Owners in the Residential Condominium Property
subject to the rights of any Mortgagees of the Unit Owners. In the event of such termination, Parcel Owner, for each Unit owned by Parcel Owner, and each Unit Owner, by accepting the
conveyance of a Unit, whether or not it shall be so expressed in the Original Deed, hereby confers upon the Residential Association, as trustee, the power and authority to sell, convey
or otherwise transfer the interests of the Unit Owners in the Residential Condominium Property, and this Residential Declaration shall terminate upon the consummation of such sale and
the recordation of an instrument stating that this Residential Declaration is terminated pursuant to this Section. Notwithstanding the termination of this Residential Declaration as
hereinabove provided in this Section and the termination thereby of all of the covenants, conditions, restrictions, easements, rules and regulations, liens and equitable servitudes
created by this Residential Declaration, the existence of the Residential Association shall continue for so long as reasonably required to provide for the collection and disbursement
of the proceeds from the sale, conveyance or transfer of interests of the Unit Owners in the Residential Condominium Property. Upon termination of this Residential Declaration, Residential
Condominium Property shall be deemed to be owned in common by all Unit Owners, together with the easement rights described in Section 2.4, in proportion to each Unit Owner’s Percentage
Ownership Interest.
Sale in Lieu of Partition. In the event that no conveyance, sale or transfer of the interests of the Unit Owners in the Residential Condominium Property shall have been effected by
the Residential Association within nine (9) months after the events described in Section 15.2.1 have occurred, any Unit Owner, as well as Parcel Owner, shall have the right to petition
a court of competent jurisdiction for the sale of the interests of the Unit Owners in the Residential Condominium Property in lieu of partition. Such court shall recognize and give
effect to any agreement, document or instrument made or entered into by the Residential Association within such nine (9) month period, and pursuant to which the interests of the Unit
Owners in the Residential Condominium Property shall be conveyed, sold or transferred.
Proceeds. The proceeds from a sale of the interests of the Unit Owners in the Residential Condominium Property: (i) by the Residential Association pursuant to the power of sale conferred
upon the Residential Association, as set forth in Section 15.2.1, or
(ii) by a referee appointed to do so pursuant to a decree of partition and sale obtained pursuant to Section 15.2.2, above, shall be distributed by the Residential Association, as trustee,
to each Unit Owner, including Parcel Owner, with respect to each Unit, subject to the rights of each Unit Owner’s Mortgagee and in accordance with the method for determining the Residential
Association Assessment; provided, however, that there shall be deducted from the amount due any Unit Owner, the amount, if any, of all sums due to the Residential Association from such
Unit Owner. It is acknowledged that the Unit Owners do not own any interest in the Project Property or the Apartment, except for the air space rights constituting the Units and the
easement rights appurtenant thereto, and any sale of the interests of the Unit Owners in and to the Residential Condominium Property shall not include any interest in the Project Property
or the Apartment other than easements created by and existing under this Residential Declaration.
Notices. Notices provided for in this Residential Declaration shall be in writing and shall be deemed sufficiently given either when delivered personally at the appropriate address
set forth below (in which event, such notice shall be deemed effective only upon such delivery), forty-eight (48) hours after deposit of same in any United States post office box in
the state to which the notice is addressed, or seventy-two (72) hours after deposit of same in any such post office box other than in the state to which the notice is addressed, postage
prepaid, addressed as set forth below. Any notice to a Unit Owner required under this Residential Declaration shall be addressed to the Unit Owner at the last address for such Unit
Owner appearing in the records of the Residential Association.
If to the Parcel Owner: University View Condo Owner LLC
[INSERT ADDRESS]
Attn: ___________________
With a copy to: Parsons Behle & Latimer
Attn: Jon A. Stenquist
350 Memorial Drive, Ste. 300
Idaho Falls, ID 83402
If to the Association: [INSERT NAME & ADDRESS]
During the Period of Parcel Owner Control, to Parcel Owner at the above address. After the Period of Parcel Owner Control, at such address as shall be fixed from time to time by the
Residential Association Board and circulated to all Owners.
The addresses and addressees for purposes of this Section 15.3 may be changed by giving notice of such change in the manner herein provided for giving notice. Unless and until such
notice is received, the last address and addressee as stated by notice or as provided herein, if no notice of change has been sent or received, shall be deemed to continue in effect
for all purposes hereunder.
Notification of Sale of Unit. No later than thirty (30) days after the sale or transfer of any Unit under circumstances whereby the transferee becomes the Unit Owner thereof, the
transferor or the transferee shall notify the Residential Association, the Parcel Owner and Apartment Operator in writing of: (a) the name and address of the transferee and transferor;
(b) the date on which such sale or transfer is to be or was consummated; (c) a statement executed by the transferee that the transferee has received from the Unit Owner, and acknowledges
receipt of, a copy of the Governing Instruments and a Statement of Status; (d) a statement executed by the transferee that the transferee has received a copy of the then effective Residential
Association Budget; (e) a statement executed by the transferee that the transferee agrees to be bound by all of the provisions of the Governing Instruments; and (f) the name and address
of any Mortgagee of such transferor and transferee. Any outstanding and unpaid Residential Assessments, Personal Charges and Transfer Assessment shall be paid to the Residential Association
prior to the transfer of such Unit. Any outstanding and unpaid Residential Assessments and Transfer Assessment shall be the obligation of the transferee unless paid prior to transfer
by the transferor. Unless and until such notice is given and any unpaid Residential Assessments, Personal Charges and Transfer Assessment have been paid to the Residential Association
on behalf of the transferor, the Residential Association shall not be required to recognize the transferee for any purpose. Prior to: (i) receipt of any such notification by the Residential
Association; and (ii) the payment of Residential Assessments, Personal Charges and Transfer Assessment by the transferor, any and all communications required or permitted to be given
by the Residential Association shall be deemed duly given and made to the transferee if duly and timely made and given to such transferee’s transferor.
Severability and the Rule Against Perpetuities. If any provision of this Residential Declaration, or any Section, sentence, clause, phrase or word or the application thereof in any
circumstances, shall be held invalid, the validity of the remainder of this Residential Declaration and of the application of such provision, sentence, clause, phrase or word under
any other circumstances shall not be affected thereby. If any provision of this Residential Declaration would violate the Rule Against Perpetuities or any other limitation on the duration
of the provisions contained herein imposed by law, then such provisions shall be deemed to remain in effect only for the maximum permissible period permitted by law.
Successors. The provisions of this Residential Declaration shall be binding upon all parties owning a Unit or having or acquiring any right, title or interest therein and shall be for
the benefit of each Unit Owner and such Unit Owner’s heirs, successors and assigns. Each Unit Owner and Parcel Owner shall be fully discharged and relieved of liability on the covenants
herein insofar as such covenants relate to each Unit upon ceasing to own such Unit and paying all sums and performing all obligations hereunder insofar as the same relate to each Unit
up to the time his or her ownership of such Unit is terminated. The obligations and rights of Parcel Owner under this Residential Declaration shall be binding upon, and inure to the
benefit of, any and all successors of the fee title ownership interest in the Apartment. Any person having fee title ownership interest in the Apartment shall be fully discharged and
relieved of liability on the covenants herein upon ceasing to own such ownership interest in the Apartment and paying all sums and performing all obligations hereunder insofar as the
same relate to the time prior to the termination of such ownership interest.
Violation or Nuisance. Every act or omission whereby any provision of this Residential Declaration is violated in whole or in part is hereby declared to be a nuisance and may
be enjoined or abated whether or not the relief sought is for negative or affirmative action, by Parcel Owner and the Residential Association.
Violation of Law. Any violation of any state, municipal or local law, ordinance or regulations pertaining to the ownership, occupancy or use of any of the Residential Condominium Property
is hereby declared to be a violation of this Residential Declaration and subject to any or all of the enforcement procedures set forth herein.
Interpretation. The captions of the Articles and Sections hereof are for convenience only and shall not be considered to expand, modify or aid in the interpretation, construction or
meaning of this Residential Declaration. As used herein the singular shall include the plural and the masculine shall include the feminine and neuter.
Construction; Waiver. The provisions of this Residential Declaration shall be liberally construed to affect its purpose of creating a uniform plan for the development of a transient
residential community. The failure to enforce any provision of this Residential Declaration shall not constitute a waiver thereof or of the right to enforce such provision thereafter.
Termination. The plan of condominium ownership and the Residential Association created by this Residential Declaration and the Residential Articles and Residential Bylaws shall terminate
and be of no force and effect when this Residential Declaration is terminated in the manner provided in this Residential Declaration.
Indemnity. To the extent not covered by insurance maintained or required to be maintained by the claiming Unit Owner, each Unit Owner shall indemnify, defend and hold each other Unit
Owner, the Residential Association, the Residential Association Manager, Parcel Owner and Apartment Operator harmless from and against any and all claims, damages, liabilities and expenses
(including costs and attorneys’ fees incurred in the defense of any claim) arising from the use or occupancy of such indemnifying Unit Owner’s Unit or from the conduct of its business
or from any activity, work or things done, permitted or suffered by the indemnifying Unit Owner, or by the Permitted Users of the indemnifying Unit Owner, in or about the Unit or elsewhere
in the Condominiums. This provision shall not permit any person to be indemnified for claims, damages, liabilities and expenses arising from the negligence or willful misconduct of
that person.
Constructive Notice and Acceptance; Incorporation of Residential Declaration into Deeds. Every person or entity who now or hereafter owns or acquires any right, title or interest in
or to any portion of the Residential Condominium Property is and shall be conclusively deemed to have consented and agreed to every covenant, condition, restriction and provision contained
in this Residential Declaration, whether or not any reference to this Residential Declaration is contained in the instrument by which such person acquired an interest in the Residential
Condominium Property. Any Original Deed or other instrument by which all or any portion of the Residential Condominium Property is conveyed, whether by fee, easement, leasehold interest
or otherwise, shall be subject to the provisions of this Residential Declaration and any instrument of conveyance shall be deemed to incorporate the provisions of this Residential Declaration,
whether or not such instrument makes reference to this Residential Declaration.
Cumulative Remedies. Each remedy provided for in this Residential Declaration shall be cumulative and not exclusive. The failure to exercise any remedy provided for in this Residential
Declaration shall not constitute a waiver of such remedy or of any other remedy provided herein.
Attorneys’ Fees and Costs. Except as otherwise provided in Section 13.4 above, if any party shall bring an action or proceeding (including, without limitation, any cross-complaint,
counter-claim, third party claim or arbitration proceeding) against the Parcel Owner, Apartment Operator, a Unit Owner, the Residential Association or the Residential Association Manager,
by reason of the alleged breach or violation of any provision hereof, or for the enforcement of any provision hereof, or to interpret any provision hereof, or otherwise arising out
of this Residential Declaration, the prevailing party in such action or proceeding shall be entitled to its costs and expenses of such action or proceeding, including, but not limited
to, its actual attorneys’ fees, which shall be payable by the non-prevailing party whether or not such action or proceeding is prosecuted to judgment or award. For the purposes of
this Residential Declaration, the term “attorneys’ fees” shall mean the fees and expenses of counsel to the parties to such action or proceeding, which may include fees incurred with
respect to post-judgment motions, contempt proceedings, garnishment, levy, debtor and third-party examinations, discovery, bankruptcy, litigation, and may include expenses such as printing,
photo stating, duplicating, facsimiles, filing fees, air freight charges and fees billed for law clerks, paralegal and other persons not admitted to the bar but performing services
under the supervision of an attorney, all of which shall be deemed to have accrued upon the occurrence of the act or omission giving rise to the incurrence of such fees.
No Public Dedication. Nothing herein contained shall be deemed a gift or dedication of any portion of the Residential Condominium Property or portion thereof to the general public,
or for the general public or for any public use or purpose whatsoever; it being the intention and understanding of the parties hereto that this Residential Declaration shall be limited
to and for the purposes herein expressed solely for the benefit of the Unit Owners.
Governing Law. This Residential Declaration shall be governed by the laws of the State of Idaho without giving effect to the principles of conflict of laws thereof.
Provisions Run With Land. The provisions of this Residential Declaration are intended to run with the land. When any interest in real property in the Residential Condominium Property
is conveyed, the interest shall be burdened by the provisions of this Residential Declaration for the benefit of the remaining portions of the Residential Condominium Property and the
interest conveyed shall be entitled to the benefit of this Residential Declaration until terminated pursuant to Section 15.2.
Conflict of Provisions. In the event of any conflict between this Residential Declaration and the Residential Articles, this Residential Declaration shall control. In the event of
any conflict between the Residential Articles and the Residential Bylaws, the Residential Articles shall control.
Force Majeure. No failure to perform (and/or delay and/or interruption in performing) any term or condition set forth in this Residential Declaration by the Parcel Owner
and/or the Apartment Operator, which failure is due to a Force Majeure Event shall: (a) be a breach or default of this Residential Declaration; (b) cause said party to be liable to any
other party, either directly or indirectly; or (c) excuse any performance of any obligations imposed by this Residential Declaration upon the Association, any Unit Owner, and/or their
or any of their family members, guests, tenants, invitees, licensees, agents, servants, employees, contractors, subcontractors, or designees.
Acknowledgements. Each Unit Owner is hereby advised of the following matters affecting the Units, the Condominiums and the Unit Owners’ use and enjoyment thereof:
Assumption of Risk, Waiver and General Release of Claims. Each Unit Owner, by his, her or its purchase of a Unit and acceptance of a deed thereto, hereby acknowledges that the Condominiums
is part of a university community with Condominiums-type activities, which may include, without limitation: trails, hiking trails, open spaces, wildlife, games and activities, running,
snow shoeing, and other Condominiums-type facilities, events, activities and programs (collectively, “Condominiums Activities”), and each such Owner expressly assumes the risk of noise,
nuisances, hazards, personal injury, or property damage related to any and all Condominiums Activities, including without limitation: (a) noise from maintenance equipment (it being
specifically understood that such maintenance may take place at any time(s) of the day or night), (b) noise caused by Condominiums Activities, participants, and spectators, (c) noise
from machinery, (d) construction and development activities, (e) view restrictions caused by installation, relocation and maturation of trees and shrubbery, and the construction of
other buildings and facilities, (f) reduction in privacy, including that related to maintenance activities, (g) errant equipment, and (h) facilities design and construction activities
of the Facility. Each such Unit Owner agrees that neither Parcel Owner, Apartment Operator the Residential Association, any committee created by the Residential Association, any of
the Parcel Owner’s affiliates or agents, nor any Condominiums Activities participant (unless acting recklessly or in a willfully wrongful manner) shall be liable to a Unit Owner or
any other person claiming any loss or damage, including, without limitation, indirect, special, or consequential loss or damage arising from personal injury, destruction of property,
trespass, loss of enjoyment, or any other alleged wrong or entitlement to remedy based upon, due to, arising from, or otherwise related to: (i) the proximity of an Unit Owner’s Unit
to any easement, trail, or other Condominiums Activity venue; (ii) any claim arising in whole or in part from the negligence of Parcel Owner, any of Parcel Owner’s affiliates or agents,
any Apartment Operator, the Residential Association or any committee created by the Residential Association (and all of their respective affiliates, subsidiaries, parent companies and
other related companies, and all of their respective past and present directors, officers, shareholders, members, managers and all of their respective agents, representatives, attorneys,
and employees of any of the foregoing) (collectively referred to herein as “Released Parties”); or (iii) any Condominiums Activity (collectively referred to herein as the “Waived Claims”).
Each Unit Owner, on behalf of itself, and his, her or its heirs, spouse, administrators, representatives, successors, affiliates, agents, and assigns (hereinafter, “Releasors”), does
hereby fully, finally, and unconditionally release, and forever discharge the Released Parties from and waives all actions, causes of action, lawsuits, appeals, claims, charges, complaints,
debts, obligations, demands, rights,
grievances, promises, liability, damages, costs and/or fees whatsoever in law or equity related to the Condominiums Activities and all Waived Claims asserted by such Unit Owner and/or
by such Unit Owner’s guests. Each Unit Owner and guest understands and agrees that the waiver and release set forth in this 15.21.1 is intended to be a “general release” and is not
an admission of wrongdoing or liability by or on the part of any Released Party. Nothing in this Section 15.21.1 shall in any way be construed as an admission by any Released Party
that it acted wrongfully with respect to the Releasors. Each Unit Owner and guest agrees that he, she or it will not, directly or indirectly, disparage, defame, or make defamatory or
disparaging statements to any person or entity, including the press, regarding the Released Parties, any Waived Claim, or Parcel Owner’s past or present management, directors, officers,
employees, and agents. If any covenant or provision of this Section 15.21.1 is declared invalid, illegal, or incapable of being enforced by reason of any rule of law, administrative
order, judicial decision, or public policy, all other covenants and provisions herein shall, nevertheless, remain in full force and effect. If any portion of this Section 15.21.1 is
held to be illegal, void, or unenforceable, each Unit Owner on behalf of itself and its guests agrees to execute a valid release, waiver, or covenant satisfactory to each Released Party
without additional consideration. Neither a Unit Owner nor any guest shall seek to have any court or other adjudicative body determine that any portion of this Section 15.21.1 is illegal,
invalid, or unenforceable. In the event a Unit Owner or such Unit Owner’s guest commences, joins in, continues, or in any manner asserts or attempts to assert any Waived Claim released
by this Section 15.21.1, such Unit Owner and Unit Owner’s guest shall indemnify and hold harmless any affected Released Party from and against all losses incurred thereby, including
without limitation its attorneys’ fees and other costs associated with defending against such claim and enforcing its rights under this Section 15.21.1.
Disclaimer Regarding Facility. ALL PERSONS, INCLUDING WITHOUT LIMITATION ALL UNIT OWNERS, ARE HEREBY ADVISED THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS RESIDENTIAL DECLARATION, NO
REPRESENTATIONS, WARRANTIES OR COMMITMENTS HAVE BEEN OR ARE MADE BY EITHER PARCEL OWNER, ANY PARCEL OWNER AFFILIATES, APARTMENT OPERATOR OR ANY OTHER PERSON OR ENTITY WITH REGARD TO
THE PRESENT OR FUTURE DEVELOPMENT, OWNERSHIP, OPERATION OR CONFIGURATION OF, OR RIGHT TO USE, THE FACILITY, OR RELATED FACILITIES WITHIN, NEAR OR ADJACENT TO THE CONDOMINIUMS, WHETHER
OR NOT DEPICTED ON THE PLAT, OR ANY OTHER LAND USE PLAN, SALES BROCHURE OR OTHER MARKETING DISPLAY, RENDERING OR PLAN. NO PURPORTED REPRESENTATION, WARRANTY OR COMMITMENT, WRITTEN OR
ORAL, IN SUCH REGARD SHALL EVER BE EFFECTIVE WITHOUT AN AMENDMENT HERETO EXECUTED BY PARCEL OWNER. FURTHER, THE OWNERSHIP, OPERATION OR CONFIGURATION OF, OR RIGHTS TO USE, ANY SUCH
CONDOMINIUMS OR RELATED FACILITIES MAY CHANGE AT ANY TIME AND FROM TIME TO TIME. NO UNIT OWNER OR OCCUPANT SHALL HAVE ANY OWNERSHIP INTEREST IN OR RIGHT TO USE, OR RIGHT TO EXERCISE
ANY DEGREE OF CONTROL OVER THE FACILITY OR RELATED FACILITIES SOLELY BY VIRTUE OF: (I) HIS, HER OR ITS MEMBERSHIP IN THE
RESIDENTIAL ASSOCIATION; OR (II) HIS, HER OR ITS OWNERSHIP, USE OR OCCUPANCY OF ANY UNIT, OR PORTION THEREOF OR INTEREST THEREIN.
Rules and Regulations, Easements. Roads within the Condominiums are or may be subject to restricted or gated access limitations, and are or may be subject to the Condominium Association
Rules and Regulations.
Construction. Substantial construction-related activities relating to the development of the Condominiums or other developments within or near the Condominiums, including the Facility,
may cause considerable noise, dust and other inconveniences to the Unit Owners.
Land Use Restrictions. The Condominiums may be developed pursuant to certain land uses and restrictions set forth in a plan approved by a governmental authority with no representation
being made herein concerning the planned uses of other properties.
Amenities. No interest in or right to use any amenity located on or near the Condominiums shall be conveyed to any Unit Owner pursuant to this Residential Declaration. The owners of
any facilities that are not part of the Residential Condominium Property shall have the right, in their sole discretion, to remove, relocate, discontinue operation of, restrict access
to, charge fees for the use of, sell interests in or otherwise deal with such assets in their sole discretion without regard to any prior use of or benefit to any Unit Owners.
Inconveniences. Ownership of real property involves certain inherent inconveniences. These include, but are not limited to: (a) dripping water from snow melt; (b) snow and ice build-up
during winter months; and (c) other inconveniences arising from the sometimes variable weather conditions.
Fractional Interest Units. Each Unit Owner acknowledges that, in accordance with Section 2.7, Parcel Owner has the right to create timeshare and fractional interest regimes or units
within the Condominiums.
Apartment Development. Each Unit Owner specifically acknowledges and agrees that the Parcel Owner shall have the right, in its sole discretion, to: (i) select a Apartment Operator to
manage and/or operate the Apartment; (ii) change such Apartment Operator from time to time; and (iii) change the name of the Apartment that may be operated within the Project Property
at any time. Each Unit Owner specifically acknowledges and agrees that none of the Parcel Owner or any of its respective agents or representatives has made any representations, warranties,
guaranties or other claims of any kind regarding the identity of a Apartment Operator for the Apartment or if a Apartment Operator will be hired to operate or manage the Apartment.
Parcel Owner expressly disclaims any representations, warranties, guaranties or other claims of any kind regarding the same. Each Unit Owner, by accepting any deed conveying the Unit
to such Unit Owner, disclaims and agrees, immediately upon request from Parcel Owner, to execute a disclaimer (in a form approved by Apartment Operator in its sole discretion) acknowledging
that such Unit Owner does not have any right, title or interest in or to any
trademarks or any proprietary information of the Apartment Operator. All rights of the Residential Association to use the Apartment name shall be set forth in an agreement between Apartment
Operator and the Association (to be negotiated and entered into by Parcel Owner on behalf of the Association).
Views. Each Unit Owner acknowledges that: (i) there are no protected views in the Project Property, and the Units are not assured the existence or unobstructed continuation of any particular
view; and (ii) any construction, landscaping or other installation of improvements by Parcel Owner (including, without limitation, the construction of other Apartment and/or Condominiums
structures and amenities in the vicinity of the Residential Condominiums), or Apartment Operator, or other owners or owners of other property in the vicinity of the Residential Condominiums,
including, without limitation, owners of portions of the Project Property or of the University View Condominiums, may impair the view from the Unit, and each Owner consents to such
view impairment.
Minor Flaws. Residential construction is an industry inherently subject to variations and imperfections, and items which do not materially affect safety or structural integrity shall
be deemed “expected minor flaws” (including, but not limited to: reasonable wear, tear or deterioration; shrinkage, swelling, expansion or settlement; squeaking, peeling, chipping,
cracking, or fading; touch-up painting; minor flaws or corrective work; and like items) and not constructional defects. Each Unit Owner hereby releases Parcel Owner and Apartment Operator
from any and all claims arising from or relating to such expected minor flaws.
Construction Variations. The finished construction of the Residential Condominium Property, while within the standards of the industry in Madison County, Idaho, and while in substantial
compliance with the plans and specifications, will be subject to variations and imperfections and expected minor flaws; and each Unit Owner hereby releases Parcel Owner and Apartment
Operator from any and all claims arising from or relating to such variations, imperfections and flaws.
Air Quality. Indoor air quality of the Units may be affected in a manner and to a degree found in new construction within industry standards, including, without limitation, by particulates
or volatiles emanating or evaporating from new carpeting or other building materials, fresh paint or other sealants or finishes, and similar products.
Security. Installation and maintenance of any security or traffic access device, operation, or method, shall not create any presumption or duty whatsoever of the Parcel Owner, any Apartment
Operator (or their respective officers, directors, managers, employees, agents, and/or contractors) with regard to security or protection of persons or property within or adjacent to
the Project Property; and each Unit Owner, by acceptance of an Original Deed, whether or not so stated therein, shall be deemed to have agreed to take any and all protective and security
measures and precautions which such Unit Owner would have taken if the Unit had been located within public areas and not gated.
Earthquake Faults. The Project Property or portions thereof may be located on or nearby an identified or yet to be identified seismic fault line; and each Owner hereby releases Parcel
Owner and Apartment Operator from any and all claims arising from or relating to earthquakes or seismic activities.
Contemplated Improvements. The improvements currently contemplated for the Project Property need not be built and, if built, may be changed to other uses at any time
Disclaimer of Warranties. Parcel Owner hereby disclaims any and all and each and every express or implied warranties, whether established by statutory, common, case law or otherwise,
as to the design, construction, continuation of any particular view (it being understood and agreed that construction on any adjacent properties may obstruct such view), sound and/or
odor transmission, existence and/or development of molds, mildew, toxins or fungi, furnishing and equipping of the Project Property, including, without limitation, any implied warranties
of habitability, fitness for a particular purpose or merchantability, compliance with plans, all warranties imposed by statute (to the extent permitted by law) and all other express
and implied warranties of any kind or character.
Investment Potential. EACH UNIT OWNER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT NONE OF PARCEL OWNER, APARTMENT OPERATOR, OR ANY OF ITS AGENTS OR REPRESENTATIVES HAS MADE ANY REPRESENTATIONS,
WARRANTIES, GUARANTIES OR OTHER CLAIMS OF ANY KIND REGARDING THE UNIT AS AN INVESTMENT OR RENTAL INCOME, IF ANY, THAT MAY BE OBTAINED BY A UNIT OWNER FROM RENTING A UNIT. EACH UNIT
OWNER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT NONE OF PARCEL OWNER, APARTMENT OPERATOR OR ITS AGENTS OR REPRESENTATIVES HAVE MADE ANY REPRESENTATIONS, WARRANTIES, GUARANTIES OR OTHER
CLAIMS OF ANY KIND REGARDING ANY RENTAL PROGRAMS OTHER THAN THE FACT THAT OWNERSHIP OF A UNIT MAY INCLUDE THE OPPORTUNITY TO PLACE THE UNIT IN A RENTAL PROGRAM AND EXPRESSLY DISCLAIM
ANY REPRESENTATIONS, WARRANTIES, GUARANTIES OR OTHER CLAIMS OF ANY KIND REGARDING ANY RENTAL PROGRAMS.
Apartment Operator. EACH UNIT OWNER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT THE PARCEL OWNER SHALL HAVE THE RIGHT, IN ITS SOLE DISCRETION, TO (1) SELECT AN APARTMENT OPERATOR TO MANAGE
AND/OR OPERATE THE APARTMENT; AND (2) TO CHANGE SUCH APARTMENT OPERATOR FROM TIME TO TIME. EACH UNIT OWNER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT NEITHER THE PARCEL OWNER NOR ANY
OF ITS AGENTS OR REPRESENTATIVES HAS MADE ANY REPRESENTATIONS, WARRANTIES, GUARANTIES OR OTHER CLAIMS OF ANY KIND REGARDING THE IDENTITY OF AN APARTMENT OPERATOR FOR THE APARTMENT OR
IF AN APARTMENT OPERATOR WILL BE HIRED TO OPERATE OR MANAGE THE APARTMENT. PARCEL OWNER EXPRESSLY
DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, GUARANTIES OR OTHER CLAIMS OF ANY KIND REGARDING THE SAME.
Releases. THE RESIDENTIAL ASSOCIATION AND, BY ACCEPTANCE OF AN ORIGINAL DEED TO A UNIT OR OTHERWISE TAKING TITLE TO A UNIT, EACH UNIT OWNER, FOR ITSELF AND ALL PERSONS CLAIMING UNDER
SUCH UNIT OWNER, SHALL CONCLUSIVELY BE DEEMED TO HAVE ACKNOWLEDGED AND AGREED, TO RELEASE PARCEL OWNER AND ITS AFFILIATES, APARTMENT OPERATOR, AND ALL OF THEIR RESPECTIVE OFFICERS,
MANAGERS, AGENTS, EMPLOYEES, SUPPLIERS, AND CONTRACTORS, FROM ANY AND ALL CLAIMS, CAUSES OF ACTION, DEMANDS, LOSS, DAMAGE OR LIABILITY (INCLUDING, BUT NOT LIMITED TO, ANY CLAIM FOR
NUISANCE OR HEALTH HAZARD, PROPERTY DAMAGE, BODILY INJURY, AND/OR DEATH) ARISING FROM OR RELATED TO ALL AND/OR ANY ONE OR MORE OF THE CONDITIONS, ACTIVITIES, OCCURRENCES, OR OTHER MATTERS
DESCRIBED IN THE FOREGOING SECTION 15.21.
Parcel Owner and Apartment Operator Release. EACH UNIT OWNER (BY VIRTUE OF HIS ACCEPTANCE OF AN ORIGINAL DEED TO A UNIT) AND EACH OTHER PERSON HAVING AN INTEREST IN OR LIEN UPON, OR
MAKING USE OF, ANY PORTION OF THE RESIDENTIAL CONDOMINIUM PROPERTY (BY VIRTUE OF ACCEPTING SUCH INTEREST OR LIEN OR MAKING SUCH USE) SHALL BE BOUND BY THIS PROVISION AND SHALL BE DEEMED
TO HAVE AUTOMATICALLY WAIVED ANY AND ALL RIGHTS, CLAIMS, DEMANDS AND CAUSES OF ACTION AGAINST THE PARCEL OWNER, APARTMENT OPERATOR, THEIR AFFILIATES AND ALL OF THEIR RESPECTIVE OFFICERS,
MANAGERS, AGENTS, EMPLOYEES, SUPPLIERS, AND CONTRACTORS, ARISING FROM OR CONNECTED WITH ANY MATTER FOR WHICH THE LIABILITY OF THE PARCEL OWNER OR APARTMENT OPERATOR HAS BEEN DISCLAIMED
IN THIS RESIDENTIAL DECLARATION.
Agent for Service of Process. The agent for service of process on the Residential Association under the Act until the expiration of the Period of Parcel Owner Control shall be Jon A.
Stenquist, Esq. whose address 350 Memorial Drive, Ste. 300, Idaho Falls, ID 83402. Thereafter, the agent for service of process on the Residential Association shall be the Residential
Association Manager, or such other persons as the Residential Association Board may designate.
Third-Party Beneficiaries. The Parcel Owner and Apartment Operator are and shall be express third-party beneficiaries under this Residential Declaration, whether or not Parcel Owner
or Apartment Operator own any Unit, and Parcel Owner and Apartment Operator, on behalf of Parcel Owner, shall have the right to enforce the provisions of this Residential Declaration.
This Residential Declaration shall not be amended in a manner that adversely affects any benefit, right or remedy of Parcel Owner hereunder without the prior written consent of the
Parcel Owner, which consent may be given or denied in the Parcel Owner’s sole discretion.
Delegation of Parcel Owner Rights and Responsibilities. Parcel Owner shall have the power to delegate the authority and responsibilities for the management and operation of the Apartment
and the Shared Facilities hereunder to one or more agents, including, without limitation, the Apartment Operator, and the power to employ the services of any person or corporation as
Apartment Operator, or other employees as may be directed by the Parcel Owner, to manage, conduct, and perform the business, obligations and duties of the Parcel Owner.
[Signature Page Follows]
IN WITNESS WHEREOF, Parcel Owner has caused this Residential Declaration to be executed as of the day and year first-above written.
PARCEL OWNER
University View Condo Owner LLC,
a Delaware limited liability company
By: ________________________
Name: _____________________
Title: ______________________
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me on _______________, by _______________, as _______________ of University View Condo Owner, a Delaware limited liability company.
Notary Public
My Commission Expires:
(SEAL)
CONSENT TO RECORD AND SUBORDINATION
The undersigned University View Condo Owner, LLC, a Delaware limited liability company (“Holder”), is the holder of that certain Construction Deed of Trust, Security Agreement, Fixture
Filing and Assignment of Leases and Rents dated as of _________, 2022, recorded ____________________, 2022, as Instrument No. __________________ in Book _____ at Page ______ in the
official records of Madison County, Idaho (the “Deed of Trust”) which constitutes a lien of record against the property subject to the foregoing Residential Declaration. Holder, hereby
subordinates the lien and encumbrance of the Deed of Trust to this Residential Declaration, and to the rights of the Members as set forth in such Residential Declaration, and consents
to the recordation of such Residential Declaration and the related Condominium Plat and Final Site Plan for University View Condominiums at Rexburg, Idaho.
UNIVERSITY VIEW CONDO OWNER,
LLC,
A Delaware limited liability company
By:
Name:
Its:
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me on June ___, by _______________, the _______________ of University View Condo Owner, LLC, a Delaware limited liability company, on
behalf of such company.
NOTARY PUBLIC
My Commission Expires:
(SEAL)
EXHIBIT A
LEGAL DESCRIPTION OF PROJECT PROPERTY
That certain real property located in Madison County, State of Idaho, more particularly described as follows:
***insert legal Description***
EXHIBIT B
SCHEDULE OF UNIT AREAS; PERCENTAGE OWNERSHIP INTERESTS*
Unit Identifying Number
Approximate Unit Square Footage*
No. of Votes Per Unit
Undivided Interest Per Unit**
1202
848
0.43
0.43%
1204
658
0.33
0.33%
1205
1,034
0.52
0.52%
1206
446
0.22
0.22%
1208
1,093
0.55
0.55%
1209
1,307
0.66
0.66%
1211
1,389
0.7
0.7%
1301
2,554
1.28
1.28%
1303
1,110
0.56
0.56%
1304
658
0.33
0.33%
1305
1,220
0.61
0.61%
1306
446
0.22
0.22%
1307
422
0.21
0.21%
1308
1,171
0.59
0.59%
1309
1,312
0.66
0.66%
1311
1,493
0.75
0.75%
1401
2,554
1.28
1.28%
1403
1,110
0.56
0.56%
1404
658
0.33
0.33%
1405
1,220
0.61
0.61%
1406
446
0.22
0.22%
1407
422
0.21
0.21%
1408
1,171
0.59
0.59%
1409
1,312
0.66
0.66%
1411
1,493
0.75
0.75%
1501
2,554
1.28
1.28%
1503
1,110
0.56
0.56%
1504
658
0.33
0.33%
1505
1,220
0.61
0.61%
1506
446
0.22
0.22%
1507
422
0.21
0.21%
1508
1,171
0.59
0.59%
1509
1,312
0.66
0.66%
1511
1,493
0.75
0.75%
1601
2,554
1.28
1.28%
1603
1,110
0.56
0.56%
1605
1,220
0.61
0.61%
1607
422
0.21
0.21%
1608
3,691
1.85
1.85%
1609
1,312
0.66
0.66%
2109
1,961
0.98
0.98%
2113
1,958
0.98
0.98%
2117
2,148
1.08
1.08%
2201
1,087
0.55
0.55%
2202
1,603
0.8
0.8%
2203
1,769
0.89
0.89%
2204
1,945
0.98
0.98%
2207
529
0.27
0.27%
2208
515
0.26
0.26%
2210
447
0.22
0.22%
2212
438
0.22
0.22%
2214
734
0.37
0.37%
2216
586
0.29
0.29%
2218
2,611
1.31
1.31%
2301
1,259
0.63
0.63%
2302
1,603
0.8
0.8%
2303
1,767
0.89
0.89%
2304
1,779
0.89
0.89%
2306
444
0.22
0.22%
2310
1,399
0.7
0.7%
2311
1,625
0.82
0.82%
2314
734
0.37
0.37%
2315
1,617
0.81
0.81%
2316
586
0.29
0.29%
2318
2,611
1.31
1.31%
2401
1,259
0.63
0.63%
2402
1,603
0.8
0.8%
2403
1,767
0.89
0.89%
2404
1,779
0.89
0.89%
2406
444
0.22
0.22%
2410
1,399
0.7
0.7%
2411
1,625
0.82
0.82%
2414
734
0.37
0.37%
2415
1,617
0.81
0.81%
2416
586
0.29
0.29%
2418
2,002
1.01
1.01%
2501
1,259
0.63
0.63%
2502
1,603
0.8
0.8%
2503
1,767
0.89
0.89%
2504
1,779
0.89
0.89%
2506
444
0.22
0.22%
2510
1,399
0.7
0.7%
2511
1,625
0.82
0.82%
2514
734
0.37
0.37%
2515
1,617
0.81
0.81%
2516
586
0.29
0.29%
2518
2,002
1.01
1.01%
2604
449
0.23
0.23%
2606
444
0.22
0.22%
2610
1,399
0.7
0.7%
2611
1,625
0.82
0.82%
2614
734
0.37
0.37%
2615
1,617
0.81
0.81%
2616
586
0.29
0.29%
2618
1,564
0.79
0.79%
3201
1,542
0.77
0.77%
3202
2,314
1.16
1.16%
3203
1,351
0.68
0.68%
3204
1,751
0.88
0.88%
3205
1,363
0.68
0.68%
3206
1,757
0.88
0.88%
3207
1,326
0.67
0.67%
3208
724
0.36
0.36%
3209
475
0.24
0.24%
3210
1,100
0.55
0.55%
3211
1,974
0.99
0.99%
3212
437
0.22
0.22%
3301
1,542
0.77
0.77%
3302
2,314
1.16
1.16%
3303
1,351
0.68
0.68%
3304
1,751
0.88
0.88%
3305
1,363
0.68
0.68%
3306
1,757
0.88
0.88%
3307
1,326
0.67
0.67%
3308
724
0.36
0.36%
3309
475
0.24
0.24%
3310
1,100
0.55
0.55%
3311
1,974
0.99
0.99%
3312
437
0.22
0.22%
3401
1,542
0.77
0.77%
3402
2,314
1.16
1.16%
3403
1,351
0.68
0.68%
3404
1,751
0.88
0.88%
3405
1,363
0.68
0.68%
3406
1,757
0.88
0.88%
3407
1,326
0.67
0.67%
3408
724
0.36
0.36%
3409
475
0.24
0.24%
3410
1,100
0.55
0.55%
3411
2,073
1.04
1.04%
3501
1,542
0.77
0.77%
3502
2,314
1.16
1.16%
3503
1,351
0.68
0.68%
3504
1,751
0.88
0.88%
3505
1,363
0.68
0.68%
3506
1,757
0.88
0.88%
3507
1,326
0.67
0.67%
3508
724
0.36
0.36%
3509
475
0.24
0.24%
3510
1,100
0.55
0.55%
3511
2,073
1.04
1.04%
3601
1,542
0.77
0.77%
3602
2,314
1.16
1.16%
3603
1,351
0.68
0.68%
3604
1,751
0.88
0.88%
3605
1,363
0.68
0.68%
3606
1,757
0.88
0.88%
3607
1,326
0.67
0.67%
3608
724
0.36
0.36%
3609
475
0.24
0.24%
3610
1,100
0.55
0.55%
3611
1,607
0.81
0.81%
*The Unit Areas set forth above represent the approximate square footage of the Units based on drawings provided by Parcel Owner’s architect and which were determined by measuring from
the center line of each Unit’s demising walls, the face stud of exterior walls, the lowermost floor, uppermost ceiling, the interior surfaces of windows and doors and the outside face
of gypsum board on the corridor wall. However, columns, bearing walls and other structural elements and systems servicing more than one Unit are not part of the Units and are owned
by the Parcel Owner. The Unit Areas set forth above are deemed accurate for all purposes under this Residential Declaration regardless of subsequent square footage measurement(s).
**May total slightly more or less than 100% due to rounding.
EXHIBIT C
MASTER DEFINITIONS
As used herein, the following terms shall have the following meanings:
“A la Carte Services” means those services (other than Basic Services) that may be provided from time-to-time to the Unit Owners by or on behalf of Parcel Owner which are completely
discretionary at the election of Parcel Owner (or at Parcel Owner’s election, Apartment Operator acting on behalf of Parcel Owner) and each individual Unit Owner, and are paid for by
that Unit Owner on a per use, per diem or other periodic basis established by Parcel Owner (or, at Parcel Owner’s election, Apartment Operator acting on behalf of Parcel Owner) and
accepted by the Unit Owner pursuant to a Apartment Amenities Services Agreement.
“Act” means the Idaho Condominium Property Act (I.C. 1953 § 55-8-1 et seq.), as amended and supplemented from time-to-time.
“ADA Units” means certain Units that will be designed and constructed to be accessible to disabled persons, in compliance with the Americans With Disabilities Act (42 U.S.C. 12101 et
seq.).
“Administrator” means either of the following companies selected by the party initiating the arbitration under Article XIII of the Residential Declaration: National Arbitration Forum
(“NAF”), P.O. Box 50191, Minneapolis, MN 55405, http://www.arb-forum.com, or the American Arbitration Residential Association (“AAA”), 335 Madison Avenue, New York, NY 10017, http://www.adr.org.
“Agreed Rate” is the prime rate of interest commonly called the “prime rate” which is charged from time-to-time by [NAME OF BANK – Bank of America?] (or such other bank as shall be selected
by the Parcel Owner, if [NAME OF BANK] ceases to conduct banking operations), to corporate borrowers of the highest credit standing for short term unsecured loans, plus six hundred
(600) basis points, but not to exceed an amount of interest which is the maximum amount which can be charged by law under the circumstances.
“Apartment” means the Apartment facility, if any, operated in and on the Apartment Parcel located in the Condominiums. Notwithstanding anything in this Residential Declaration to the
contrary, no representation or warranty is made regarding whether there in fact will be an Apartment operating within the Condominiums at any time.
“Apartment Amenities Services Agreement” means an agreement between a Unit Owner and Parcel Owner (or, at Parcel Owner’s direction, Apartment Operator), pursuant to which Apartment Services
will be provided to such Unit Owner by Parcel Owner (or at Parcel Owner’s election, Apartment Operator acting on behalf of Parcel Owner).
“Apartment Management Agreement” means an agreement between Parcel Owner and Apartment Operator providing for the management and operation of the Apartment (including the Shared Facilities).
“Apartment Operator” means the managing agent engaged by Parcel Owner to manage the Apartment, pursuant to the Apartment Management Agreement (and which may be Parcel Owner or an affiliate
of Parcel Owner).
“Apartment Parcel” means the Apartment Parcel as defined in this Residential Declaration.
“Apartment Services” means, collectively, the Basic Services and the A la Carte Services.
“Arbitration Provision” shall have the meaning set forth in Section 13.2 of this Residential Declaration.
“Basic Services” means those services provided by Parcel Owner (or at Parcel Owner’s election, Apartment Operator acting on behalf of Parcel Owner) to the Unit Owners that generally
are essential to the use of their Units for residential purposes. The Parcel Owner or Apartment Operator may, from time to time, and in its sole and absolute discretion, change the
Basic Services provided to Unit Owners, guests and Occupants of the Units without the consent or approval of the Residential Association or the Unit Owners.
“Bound Party” means the Residential Association, Parcel Owner, affiliates of Parcel Owner and any Residential Association Manager; the successors and assigns of such Bound Parties; the
Unit Owners and their heirs, successors and assigns; and all other persons to the extent subject to the Residential Declaration. “Bound Party” also includes any person or entity not
otherwise subject to the Residential Declaration who agrees to submit to the arbitration provision therein, and the agents, representatives, members, employees, officers and/or directors
of such person or entity, if a Claim is also asserted at the same time against such person or entity and/or such person or entity may have a financial obligation for any recovery of
the party asserting the Claim.
“Building” or “Buildings” means the three (3) buildings on the Project Property in which the Units are located as provided on the Condominium Plat.
“University View Condominiums” means the larger project of which the Project Property is physically a part, known as University View Condominiums, and which includes and/or is expected
to include a mixture of single-family and multi-family uses, as well as open space, private roadways and other amenities.
“City” means Rexburg City Municipal Corporation.
“Claim” means any claim, dispute or controversy of one or more Bound Parties against one or more other Bound Parties arising out of or relating to the Residential Association Governing
Instruments.
“Commercial Parcel” means one or more Commercial Parcels as described this Residential Declaration.
“Condominiums” means the Units, commercial and/or retail space, and the Apartment, together with certain appurtenances, landscaping, amenities, fixtures, equipment, shared components,
Shared Facilities, “common areas and facilities” (as described in Section 2.4.2),
“limited common areas and facilities” (as described in Section 2.4.4), signs, entry and exit areas, and parking areas, regardless of the number of such structures, located on the Project
Property.
“Condominium Association Rules and Regulations” means the rules and regulations relating to the possession, use and enjoyment of the Condominiums promulgated by Parcel Owner from time-to-time.
“Condominium Easement Rights” means the non-exclusive easement rights for access to and from the Residential Condominium Property as provided on the Condominium Plat, in Sections 2.4.3
and 3.1 of this Residential Declaration and those non-exclusive easement rights granted in favor of the Residential Condominiums and any other easement interests appurtenant to the
Residential Condominiums or licenses granted to the Residential Condominiums under this Residential Declaration or the Condominium Plat.
“Condominium Plat” means the condominium plat for “University View Condominiums and Commercial Condominiums” recorded or to be recorded in the Office of the County Recorder, as the
same may be amended from time-to-time, which depicts the Units.
“County” means Madison County, Idaho.
“Curing Unit Owner” shall have the meaning set forth in Section 3.11 of this Residential Declaration.
“Declaration” means that certain Declaration of Easements, Covenants, Conditions and Restrictions for University View Apartments recorded or to be recorded in the Office of the County
Recorder, as the same may be amended from time-to-time in the manner provided therein.
“Declaration Assessments” means all assessments, charges and other amounts payable by the Residential Association or Unit Owners to the Parcel Owner under this Residential Declaration,
including, without limitation, those charges and assessments levied pursuant to Article VI of this Residential Declaration.
“Defaulting Unit Owner” shall have the meaning set forth in Section 3.11 of this Residential Declaration.
“Delinquent” means any payment due to an Association which remains unpaid for more than the number of days after the due date therefor as may be determined by such Association from time-to-time,
or if no such number of days is determined by such Association, fifteen (15) days after the due date therefor.
“Exempt Claim” means any of the following Claims, which will not be subject to Article XIII of the Residential Declaration: (A) any individual action brought by a Unit Owner in small
claims court or such Unit Owner’s state’s equivalent court, unless such action is transferred, removed, or appealed to a different court; (B) any action to effect a judicial or non-judicial
foreclosure; (C) any eviction or other summary proceeding to secure possession of real property or an interest therein; (D) any action in any bankruptcy proceeding to assert, collect,
protect, realize upon or obtain possession of the collateral for any amount owed; (E) any action to quiet title; (F) any action insofar as it seeks provisional or ancillary remedies
in connection with any of the
foregoing; and (G) any dispute concerning the validity and effect of the ban set forth in Article XIII of the Residential Declaration on class actions and private attorney general proceedings.
“Expandable Property” means that portion of the Project Property designated as such on the Condominium Plat and which may be annexed to and become subject to the Residential Declaration
by Parcel Owner without the approval, assent or vote of any other Unit Owners in accordance with the Residential Declaration.
“F&E” means fixtures and equipment contained in a Unit, including, without limitation the items listed below; provided, however, such items should in no way be construed as being an
obligation of Parcel Owner to provide such items or include such items in a Unit:
(a) Carpet, hard surface flooring and other flooring materials
(b) Ceramic tile, stone, slate, marble, granite and other similar materials (e.g., for shower, vanity, tub enclosure, counter top)
(c) Shower door and tub enclosure
(d) Cabinets and shelves
(e) Wall coverings (e.g., paint, wallpaper, cloth coverings)
(f) Interior doors and door frames
(g) Interior window coverings (e.g., shutters, drapes, blinds, curtains)
(h) Fireplace, hearth and mantle
(i) Kitchen and bath counter tops and splashes
(j) Interior wood work and other finish work (e.g., wainscoting, molding, thresholds)
(k) Light fixtures, recessed lighting and can lights, electrical outlets, light switches, switch plate covers, cable TV connectors, phone jacks
(1) Alarm system components within a Unit
(m) Fire sprinkler heads and other fire suppression equipment
(n) Stairways and railings
(o) Hardware (e.g., hinges, knobs, handles)
(p) Toilet
(q) Sinks, sink faucets and drain covers
(r) Shower head
(s) Bathtub
(t) Built-in furniture
(u) Towel bars, toilet paper holders, paper towel holders
(v) Closets and any built-ins therein (e.g., shelving, clothes bars)
(w) Appliances (e.g., range, microwave, stove, refrigerator, washer, dryer, dishwasher, trash compactor, wine storage units, oven hood, warming drawers, garbage disposal)
(x) Exhaust fans and vent covers
(y) Mirrors and medicine cabinets
(z) Water heaters and air conditioning units (if located within a Unit)
(aa) Home theaters and televisions
(bb) Networking equipment.
“FAA” shall have the meaning set forth in Section 13.5 of this Residential Declaration.
“First Mortgage” means, with respect to each Unit, any first Mortgage recorded in the Office of the County Recorder and given in good faith and for value.
“Fiscal Year” means, for any Association, the one (1) year period commencing on the first day of January of each year and ending on the last day of December of the same year, which shall
be the fiscal year of such Association; provided, however, that the first Fiscal Year shall be the partial one (1) year period commencing on the Starting Date and ending on December
31 of that year; provided, further, that the Fiscal Year may be changed by each Association as it deems appropriate.
“Force Majeure Event” means causes or conditions beyond the control of the party(ies) to be charged, including, but not limited to: (a) acts of God (including, without limitation, earthquakes,
drought, heat, cold, floods, storms, sandstorms, wind, air turbulence, rain, lightning, hurricanes, tornadoes, cyclones, any other aspects of weather, sunspots, solar flares, solar
or cosmic radiation, environmental pollution (including, without limitation, smog, smoke, the presence of radiation in the general area, and all other pollutants present in the general
area) not directly caused by the act of the party(ies) to be charged, climate changes, subsidence not directly caused by the act of the party(ies) to be charged, mudslides not directly
caused by the act of the party(ies) to be charged, landslides not directly caused by the act of the party(ies) to be charged, any objects falling from the sky or from the heavens not
directly caused by the act of the party(ies) to be charged, and/or consequential damage whatsoever to any property or Persons or systems caused by any of same); (b) acts of war; (c)
acts of the public enemy; (d) riots; (e) insurrections;
(f) acts of terrorism; (g) criminal acts by third parties; (h) strikes, lock outs, and other labor disputes; (i) inability to obtain materials; (j) failure of transportation; (k) any
actions or inactions of any governmental or regulatory authority (including, without limitation, the issuance of any injunction or order by a court with jurisdiction, governmental embargo
restrictions, and any other actions or inactions of any governmental or regulatory authority); or (l) any other cause whatsoever beyond the control of said party(ies). For purposes
hereof, an event shall not be deemed to be within the control of the party concerned on the ground that that party could have prevented that event by acceding to any unreasonable demands
(excluding any demand that can be satisfied by the expenditure of money in accordance with good business practices) of any governmental or regulatory (including, without limitation,
any court) or other authority, corporation, trade union, association or other Person.
“Governing Instruments” means, collectively, this Residential Declaration, the Condominium Association Rules and Regulations, the Condominium Plat, the Residential Articles and the Residential
Bylaws.
“Institutional Party” means each Bound Party except a Unit Owner other than Parcel Owner.
“Member” means a member of the Residential Association.
“Mortgage” means a mortgage or deed of trust encumbering a Unit.
“Mortgagee” means the beneficiary or mortgagee pursuant to a recorded Mortgage.
“Non-Parcel Owners” means all Unit Owners, other than Parcel Owner, as the context requires.
“Occupant” means any person, other than a Unit Owner, Parcel Owner or their Permittees, who is legally entitled to the use and enjoyment of a Unit under a rental agreement or other similar
arrangement.
“Office of the County Recorder” means the Office of the County Recorder of Madison County, Idaho.
“Option to Expand” shall have the meaning set forth in Section 3.3.6 of this Residential Declaration.
“Option to Withdraw” shall have the meaning set forth in Section 3.3.5 of this Residential Declaration.
“Original Deed” means each deed from Parcel Owner recorded after the date hereof conveying a Unit, excluding, however, any deed which conveys all or substantially all of the interest
in the Condominiums then owned by Parcel Owner.
“Parcel Owner” means PCRC 17 LLC, a Delaware limited liability company, or any successor(s) in-interest to Parcel Owner either (a) by express assignment of the rights of Parcel Owner
under this Residential Declaration by an instrument executed by Parcel Owner, recorded
in the Office of the County Recorder, or (b) through foreclosure of the interest of a beneficiary or mortgagee under a First Mortgage of Parcel Owner’s interest in the Condominiums provided
that such beneficiary or mortgagee also executes, records in the Office of the County Recorder an express assignment of the rights of Parcel Owner hereunder.
“Percentage Ownership Interest” means, with respect to a Unit, the applicable percentage ownership interest based upon the square footage of such Unit, as set forth in Exhibit B to the
Residential Declaration.
“Period of Parcel Owner Control” means the period during which Parcel Owner or persons designated by it shall have the authority to appoint and remove the Residential Association officers
and members of the Residential Association Board. The Period of Parcel Owner Control shall terminate no later than the earlier of:
(i) six (6) years after the first Unit is conveyed to a Unit Owner; or
(ii) the date on which Units to which three-fourths (3/4) of the Percentage Ownership Interests appertain have been conveyed to Unit Owners other than Parcel Owner, or the date on which
all Expandable Property has been added as Association Property, whichever occurs last.
“Permitted User” means any person who occupies a Unit or any part thereof with the permission of a Unit Owner, including, without limitation, Occupants, members of such Unit Owner’s
family and his or her guests, licensees or invitees.
“Permittee” means any person other than a Unit Owner, Parcel Owner or their Occupants or Permitted Users, who is invited to be and remain on the Condominiums, and includes, without limitation,
employees, customers, and business invitees of Unit Owners, Parcel Owner and their respective Occupants or Permitted Users.
“Personal Charges” means, to the extent not covered by any applicable insurance, any expense resulting from the act or omission of any Unit Owner or his or her Permitted User or Permittee,
including, without limitation the cost to repair or replace any damage to any portion of the Residential Condominium Property on account of loss or damage caused by such Unit Owner
or his or her Permitted Users or Permittees and the cost to satisfy any expense to any other Unit Owner(s) or to an Association due to any intentional or negligent act or omission of
such Unit Owner or Permitted User, or resulting from the breach by such Unit Owner or Permitted User of any provisions of the Governing Instruments. In amplification of the foregoing,
the act or negligence of a Permitted User shall be deemed to be the act or negligence of the Unit Owner who permits such Permitted User to use and occupy any portion of the Residential
Condominium Property.
“Project Property” means the real property described on Exhibit A attached hereto, and all additions thereto, now or hereafter made subject to this Residential Declaration, except such
as are withdrawn from the provisions of this Residential Declaration in accordance with the procedures set forth therein.
“Project Standard” means, at any time, a luxury lifestyle standard which shall at all times be consistent with and no less than the highest standard at which the Apartment is then being
designed, furnished, equipped, repaired, constructed, operated, serviced, maintained and refurbished, but in any event not less than a standard consistent with mixed-use luxury lifestyle
branded Apartment and residential condominium in the immediate area of the Project. The Project Standard as applied to the operational and physical components of the Project shall be
subject to change over time in order to adapt to technology and standards applicable to luxury lifestyle Apartments with residential condominium components.
“Purchase Agreement” means a purchase and sale agreement by and between Parcel Owner and the person or entity named therein as “Buyer” or “Purchaser” providing for the sale by Parcel
Owner and the purchase by such Buyer or Purchaser of a Unit.
“Repair Assessment” means an assessment levied by the Residential Association for the purpose of raising funds to rebuild, restore or replace any portion of the Residential Condominium
Property, respectively, suffering damage, as set forth in the Residential Declaration.
“Reserve Account” means: (a) one or more interest-bearing accounts with one or more banks and/or savings and loan associations selected by the Parcel Owner or the Residential Association,
as applicable; or (b) one or more Treasury Bills and/or Certificates of Deposit, which accounts, Treasury Bills and/or Certificates of Deposit shall contain funds collected as and for
Residential Reserve Expenses and any amounts payable to the Parcel Owner for reserve expenses under this Residential Declaration, as the case may be.
“Residential Articles” means the Articles of Incorporation of the Residential Association, which is, or shall be, filed in the Office of the Secretary of State of Idaho, as such Articles
may be amended from time-to-time.
“Residential Assessments” means, collectively, the Residential Association Assessment, Tax Assessment, Special Assessment and Repair Assessment.
“Residential Association” means the University View Condominium Owners Association, Inc., an Idaho non-profit corporation which is established for the administration, management and
operation of the Units, the members of which are the Unit Owners.
“Residential Association Annual Report” means a report to the Unit Owners comprising:
(a) a balance sheet relating to the Residential Association as of the last day of the Fiscal Year;
(b) an operating statement for such Fiscal Year; (c) a statement of changes in financial position for such Fiscal Year; and (d) a list of the names, mailing addresses and telephone numbers
of the members of the Residential Association Board.
“Residential Association Assessment” means for each Unit an assessment levied by the Residential Association against a Unit to cover Residential Basic Expenses, Declaration Assessments
and any other amounts due under this Residential Declaration, in an amount determined in accordance with this Residential Declaration.
“Residential Association Board” means the Board of Directors of the Residential Association.
“Residential Association Budget” means a pro forma operating statement for a particular Fiscal Year providing for the Residential Basic Expenses as further provided in the Residential
Declaration including, but not limited to: (a) the Residential Association’s share of all Declaration Assessments allocated thereto under this Residential Declaration; and (b) the Residential
Association’s share of the Declaration Assessments allocated thereto under this Residential Declaration.
“Residential Association General Account” means the separate account(s) with a bank and/or savings and loan association located within Idaho and selected by the Residential Association
into which all cash and cash equivalent receipts of the Residential Association shall be deposited.
“Residential Association Governing Instruments” means the Residential Declaration, Residential Articles, Residential Bylaws, the Condominium Plat and such other documents promulgated
by the Residential Association Board thereunder.
“Residential Association Management Agreement” means an agreement between the Residential Association and the Residential Association Manager providing for the management of the Residential
Association and the Residential Condominium Property (excluding the Units).
“Residential Association Manager” means the managing agent engaged by the Residential Association Board to manage the Residential Association (and which may be the Parcel Owner or Apartment
Operator, or an affiliate thereof).
“Residential Basic Expenses” means the estimated aggregate amount of expenses, as set forth in the Residential Association Budget, to be incurred by the Residential Association during
the applicable Fiscal Year as is necessary:
(a) to operate, maintain, improve, repair and replace the Residential Condominium Property;
(b) to operate and manage the Residential Association;
(c) to provide for the collection of funds on an annual basis in an amount sufficient to provide financing for Residential Association-sponsored activities for the benefit of Members;
(d) to provide for the collection of funds on an annual basis over the useful life of the Residential Condominium Property in an amount sufficient to meet the Residential Reserve Expenses;
(e) to provide for a contingency fund in the event that some Residential Assessments may not be paid on a current basis;
(f) to carry out the other duties and powers of the Residential Association under the Residential Declaration; and
(g) to provide for the payment of the fees of the Residential Association Manager;
(h) to provide for the payment to the Parcel Owner for the provision of the Basic Services; and
(i) to provide for all payments due to the Parcel Owner under this Residential Declaration.
Without limiting the generality of the foregoing, Residential Basic Expenses shall include:
(i) all charges, costs, and expenses whatsoever incurred by the Residential Association for or in connection with the administration of the Residential Condominium Property;
(ii) Taxes, to the extent such Taxes are not separately levied by the County or other governmental agency against each Unit, specifically excluding that portion of the Taxes constituting
real property taxes that are assessed to Unit Owners as part their Tax Assessment in accordance with the Residential Declaration;
(iii) assessments and other similar governmental charges levied on or attributable to the Residential Condominium Property;
(iv) insurance obtained by the Residential Association pursuant to the Residential Declaration;
(v) to the extent not covered by proceeds of insurance, any liability whatsoever for loss or damage, fire, accident, or nuisance to or arising from the Residential Condominium Property;
(vi) to the extent not covered by proceeds of insurance, the cost of repair, reinstatement, rebuilding and replacement of the Residential Condominium Property;
(vii) the cost of all basic utility expenses billed to the Residential Association;
(viii) the unpaid share of any Residential Assessments levied during the previous Fiscal Year against any Unit Owner for which a default in payment thereof has occurred, to the extent
that the same becomes uncollectible;
(ix) wages, accounting and legal fees, management fees, maid service, and cleaning fees, and other necessary expenses of upkeep, maintenance, management and operation actually incurred
with respect to the Residential Condominium Property; and
(x) all charges, costs, expenses and reserves whatsoever incurred or to be paid by Parcel Owner in connection with its duties under this Residential Declaration, to the extent
any portion thereof is allocated to the Residential Association in accordance therewith (including, without limitation, the Declaration Assessments).
Residential Basic Expenses shall not include any expense constituting a Personal Charge.
“Residential Bylaws” means the Bylaws of the Residential Association attached hereto as Exhibit D as such Residential Bylaws may be amended from time-to-time.
“Residential Condominiums” means the Residential Condominium Property (the Residential Condominiums shall not include any real property or improvements comprising the Apartment Parcel
or any Commercial Parcel).
“Residential Condominium Property” means the Units and the Residential Lounge.
“Residential Declaration” means this Declaration of Covenants, Conditions and Restrictions for University View Condominiums recorded or to be recorded in the Office of the County Recorder,
as the same may be amended from time-to-time in the manner provided therein.
“Residential Lounge” means that certain area identified as the “Residential Lounge” on the Condominium Plat and designated for the exclusive use and enjoyment of the Unit Owners.
“Residential Reserve Expenses” means the specific capital expenditures required to be made at any time and from time-to-time to provide for the repair, replacement or restoration of
the Residential Condominium Property, or for such other purposes as prudent business practice requires.
“Shared Facilities” shall have the meaning ascribed to such term in this Residential Declaration.
“Shortfall” shall have the meaning set forth in Section 9.1 of this Residential Declaration.
“Special Assessment” means an assessment levied against each Unit to provide funds to the Residential Association in the event the Residential Association Assessment proves inadequate,
in an aggregate amount sufficient to provide for such inadequacy.
“Standard Package” shall have the meaning set forth in Section 3.2.4 of this Residential Declaration.
“Standard Package Changes” shall have the meaning set forth in Section 3.2.5 of this Residential Declaration.
“Starting Date” means the date on which the first Original Deed for a Unit is recorded.
“Statement of Status” means with respect to a Unit, a written statement setting forth the amount of any delinquent Residential Assessments, Personal Charges or any other amounts unpaid
with respect to such Unit.
“Subsidy Agreement” means a subsidy agreement between the Residential Association and Parcel Owner.
“Tax Assessment” means, for each Tax Year, an amount levied under this Residential Declaration against the Residential Association and the Parcel Owner, equal to a portion of the real
property taxes levied against the Condominiums and not billed directly to Unit Owners or the Parcel Owner by the County. The Residential Association shall be solely responsible for
the amount of any such taxes as the Parcel Owner deems applicable to the Residential Lounge and the Residential Condominiums in accordance with this Residential Declaration.
“Taxes” means (i) any form of personal property, assessment, real estate, general, special, ordinary or extraordinary, or rental levy or tax (other than inheritance, personal income
or estate taxes), and/or license fee imposed upon, levied against or affecting in any way, any legal or equitable interest in the Condominiums, or any portion thereof, by any authority
having the power to tax or assess and where the funds are generated with reference to the Condominiums and where the proceeds so generated are to be applied by the city, county or other
local taxing authority of a jurisdiction within which the Condominiums is located; and (ii) any tax, fee, levy, assessment or charge, or any increase therein, imposed by reason of events
occurring in connection with the Condominiums, including but not limited to, a change in the ownership of the Condominiums, or any portion thereof, and/or any improvements constructed
within the Condominiums.
“Tax Year” means the one (1) year period beginning January 1 each year and ending December 31 of the following year or such other tax year established by the State of Idaho for the assessment
of real and personal property taxes attributable to the Condominiums.
“Transient Guest” shall mean a Permitted User who is an occupant of a Unit other than: (i) a Unit Owner; or (ii) such Unit Owner’s non-paying guests; provided, however, that the Parcel
Owner may, in its sole discretion, deem any or all guests to be Transient Guests after a Unit has been occupied by someone other than the Unit Owner for more than three (3) distinct
periods of occupancy in any thirty (30) day period; provided further, that in the event that the Unit Owner can conclusively establish to the Parcel Owner that such guests are non-paying
guests, such guests shall not be deemed Transient Guests. In no event shall the occupants of a Unit owned by Parcel Owner be considered Transient Guests.
“Unit” means an individual air space unit consisting of any enclosed room or rooms occupying all or any part of the Residential Condominiums to be used for residential purposes and designated
for separate ownership or occupancy, each of which: (i) is or shall be separately shown, numbered and designated as such on the Condominium Plat; (ii) is or shall be bounded by and
contained within the interior finished surfaces of the perimeter walls, interior walls, floors, ceilings, windows and doors thereof, and the interior surfaces of the firebox of the
fireplace, if any, located therein extending from the floor to the top of the fireplace; and (iii) does or shall include the airspace so encompassed, excepting therefrom: the bearing
walls, windows and window frames, exterior door and door frames, columns, exterior floors, roofs, railings, fences, foundation slabs, exterior wall surfaces and central services, pipes,
ducts, chutes, and flues, conduits, wires and other utility installations wherever located within each such individual air space unit. A Unit reconstructed in substantial accordance
with the original plans thereof shall be conclusively presumed to be defined by its boundaries rather than by the metes and bounds (or other description)
expressed in the deed or Condominium Plat, regardless of settling or minor variance between boundaries.
“Unit Owner” means the owner of a Unit.
“Units” means, collectively, each and every Unit or more than one Unit, as the context requires.
EXHIBIT D
ASSOCIATION BYLAWS