HomeMy WebLinkAboutCC&Rs (Recorded) 2 - 22-00042 -Brigham's Mill Apartments - 431 S 3rd W - Condo PlatInstrument # 449620
REXBURG, MADISON, IDAHO
5-9-2022 12:29:52 PM No. of Pages: 35
Recorded for: EAGLE ROCK ENGINEERING
KIM H. MUIR Fee: 112.00
Ex -Officio Recorder Deputy
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DECLARATION OF COVENANTS,
CONDITIONS, AND RESTRICTIONS
FOR
BRIGHAM MILL APARTMENTS
IMPORTANT NOTICE
THE FOLLOWING IS AN IMPORTANT DOCUMENT WHICH EACH AND EVERY
POTENTIAL BUYER AND OWNER OF A UNIT WITHIN BRIGHAM MILL APARTMENTS.
SHOULD READ AND UNDERSTAND. THIS DOCUMENT DETAILS THE OBLIGATIONS,
RESPONSIBILITIES, AND PROHIBITIONS IMPOSED UPON ALL OWNERS AND UNITS
LOCATED WITHIN BRIGHAM MILL APARTMENTS, BRIGHAM MILL APARTMENTS IS
A UNIQUE RESIDENTIAL ENVIRONMENT. EACH POTENTIAL OWNER IS ADVISED TO
MAKE FULL AND COMPLETE INQUIRY ABOUT BRIGHAM MILL APARTMENTS,
BEFORE ACQUIRING A UNIT. EACH OWNER ACKNOWLEDGES AND UNDERSTANDS
THAT THE UNITS WILL BE SUBJECT TO ASSESSMENTS LEVIED BY BRIGHAM MILL
APARTMENTS OWNERS ASSOCIATION, INC. THE DECLARANT, AS DEFINED IN THIS
DECLARATION, EXPRESSLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES,
STATEMENTS, OR INFORMATION NOT SET FORTH HEREIN OR IN ANY WRITTEN
DOCUMENT EXECUTED BY THE DECLARANT. POTENTIAL OWNERS ARE ADVISED
TO REVIEW THIS DECLARATION PRIOR TO ACQUIRING A UNIT.
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of this Declaration, each and all of which are hereby declared to be in furtherance of a general plan
for the creation, maintenance, and sale of an ownership in fee simple of separate interests in Units
and for co -ownership with others, as tenants-in-common, of the Common Area, all pursuant to the
Act. All provisions hereof shall be deemed covenants running with the land or as equitable
servitudes and shall constitute benefit and burdens to the Owners and all Persons hereafter
acquiring or owning any interest in the Project, however such interests may be obtained. Each
Owner of a Unit, including Declarant, is subject to all of the rights and duties contained within this
Declaration. Notwithstanding the foregoing, no provision of this Declaration shall be construed as
to prevent or limit Declarant's right to complete the development of the Project and to construct
Improvements thereon, nor Declarant's right to maintain model, construction, sales, or leasing
offices or similar facilities (temporary, or otherwise) on any portion of the Property, including the
Common Area or any public rightlof--way; nor Declarant's right to post signs incidental to
construction, sales, or leasing; nor Dectarant's right to modify plans for the Project.
ARTICLE 3
DEFINITIONS
"Act" means the Condominium Property Act of the State of Idaho, Title 55, Chapter 15,
Idaho Code, as the same may be amended from time to time.
"Annual Budget" means the annual budget for the Association determined as provided in
Section 8.6 of this Declaration.
"Articles" means the Articles of Incorporation of the Association or other organizational or
charter documents of the Association, as the same may be amended or revised from time to time.
"Assessments" means those payments required of Owners, including Regular, Special and
Limited Assessments. The Association shall have the right to require Assessments from its
Members.
"Association" means Brigham Mill Apartments Owners Association, Inc., an Idaho
nonprofit corporation, its successors and assigns. A certified copy of the Articles of Incorporation
of the Association is attached hereto as Exhibit B.
"Board" or "Board of Directors" means the Board of Directors or other governing board or
individual, if applicable, of the Association.
"Building" means the building to be constructed on the Property, in compliance with this
Declaration and all applicable zoning and building codes, for the exclusive use and possession of
the Owners of the Units.
"Bylaws" means the Bylaws of the Association, as the same may be amended or revised
from time to time.
"Common Area" means the entire Project not located within the Unit boundaries as
described in Section 4, including but not limited to (i) all areas designated on the Plat for access,
2- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
- BRIGHAM MILL APARTMENTS
parking, landscaping and ponds and all utility lines and facilities located within the Common Area;
(ii) all portions of the Building and other improvements outside the Units; (iii) easements through
each Unit for conduits, ducts, plumbing, wiring, and other facilities for furnishing utility services
to other Units or the Common Areas; (iv) easements for lateral and subjacent support in every
portion of the Project which contributes to the support of the Building; (v) the fixtures and
installations required for access and utility services to more than on Unit or Common Area; and
(vi) all elevators, walkways, and stairwells serving the Project.
"Common Expenses" means all costs and expenses incurred by the Association for
management, utilities, insurance, improvements, maintenance, repair, and replacements, together
with any necessary reserve funds with respect to the Common Area, including but not limited to
all landscaping maintenance and snow removal, and any and all other costs and expenses,
including legal, accounting, and other professional fees, incurred to conduct the business and
affairs of the Association. Common Expenses shall also include legal fees and costs incurred by
the Association to defend any claim, suit, or other action against the Association, including but not
limited to any claim, suit, or other action brought by any Owner, which shall be paid by the Owners
(including the Owner bringing such claim, suit or other action) in accordance with this Declaration.
"Declarant" means Sweetwater Properties, LLC, an Idaho limited liability company, or its
successors in interest, or any Person to whom the Declarant expressly transfers its rights under this
Declaration, in whole or in part, other than transfers of Units to individual Owners.
"Declaration" means this Declaration of Covenants, Conditions and Restrictions for
Brigham Mill Apartments, as it may be amended or supplemented from time to time.
"Improvement" means any Building and any other structure, facility, system, or other
improvement or object, whether permanent or temporary, which is erected, constructed, placed
upon or allowed on, under, or over any portion of the Property, including, without limitation:
fences, streets, drives, parking areas, sidewalks, curbs, landscaping, walls, hedges, plantings, trees,
rocks, signs, lights, mail boxes, electrical lines, pipes, pumps, grading, road construction, or utility
improvements. Improvements include both original improvements existing on the Property on the
date hereof and all later changes and Improvements.
"Limited Assessments" means charges against a particular Owner and its Unit directly
attributable to the Owner, equal to the cost incurred by the Association in connection with
corrective action or maintenance, repair, replacement, and operation activities performed pursuant
to the provisions of this Declaration, including without limitation, damages to or maintenance,
repair, replacement, and operation activities performed for any Common Area or the failure of an
Owner to keep the Owner's Unit in proper repair, and including interest thereon as provided in this
Declaration.
"Member" means each Owner holding a membership in the Association, including
Declarant.
"Mortgage" means any first -lien mortgage, deed of trust, or other security instrument by
which a Unit or any part thereof is encumbered.
3- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
"Mortgagee" means any Person, bank, savings and loan association, established mortgage
company, or other entity chartered under federal or state laws, or any successor to the interest of
such, named as mortgagee, beneficiary, or creditor under any Mortgage, as Mortgage is defined
above.
"Owner" means the record owner, whether one or more Persons, including Declarant,
holding fee simple interest of record to a Unit which is a part of the Project, and buyers under
executory contracts of sale, but excluding those Persons having such interest merely as security
for the performance of an obligation, unless and until such Person has acquired fee simple title
pursuant to foreclosure or other proceedings. If Ownership of a Unit is held by one or more
Persons, the multiple Owners of that Unit shall be deemed a single Owner for purposes of voting
in meetings of the Association.
"Ownership Percentage" means each Owner's percentage ownership interest in the
Common Area. Each Unit shall be allocated the same Ownership Percentage as each other Unit.
"Person" means any individual, partnership, corporation, trust, estate or other legal entity,
including Declarant.
"Plat" means any condominium plat covering any portion of the Property, including
without limitation, the condominium plat for Brigham Mill Apartments, recorded or to be recorded
with the Madison County Recorder, as the same may be amended by duly recorded amendments
thereof. Upon recording any Plat of the Property, or any portion thereof, the Declarant shall have
the right to execute and record an amendment or supplement to this Declaration setting forth the
revised Ownership Percentages.
"Project" means the Units and the Common Area located on the Property.
"Property" means the real property described on Exhibit A, and such other property, if any,
subsequently incorporated into this Declaration pursuant to Section 1.1.
"Property Manager" shall mean that Property Manager, if any, retained by the Association
pursuant to Section 7.10.
"Regular Assessments" means charges for Common Expenses levied against the Units by
the Association pursuant to the terms of this Declaration.
"Special Assessments" means charges for capital improvements and replacements and a
reasonable reserve therefor, equipment purchases and replacements and a reasonable reserve
therefor, and shortages in Regular Assessments which are levied against the Units by the
Association pursuant to the teens of this Declaration.
"Unit" means a Unit within the Project as described in Section 4 below and as specified or
shown on the Plat. For voting, membership and assessment purposes herein, "Unit" shall not
include any Unit designated as Common Area.
4- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
ARTICLE 4
NATURE OF UNITS
4.1. Unit Boundaries. Each Unit shall include all parts of the Building that lie within
the following boundaries:
4.1.1. Upper and Lower Boundaries. The upper and lower boundaries of the Unit
are the following boundaries, extended to their planar intersections with the perimeter boundaries:
(A) Upper Boundaries. The horizontal plane of the unfinished lower
surface of the structural ceiling of the Unit. The unfinished lower
surface includes all paint, hardware, light fixtures, vents, and other
materials constituting part of the interior surfaces of the ceiling.
(B) Lower Boundaries. The horizontal plane of the unfinished upper
surface of the concrete floor or subfloor of the Unit.
4.1.2. Perimeter Boundaries. The perimeter boundaries of the Unit shall be the
vertical planes of the unfinished interior surfaces of the walls bounding the Unit, extended to
their planar intersections with each other and with the upper and lower boundaries. For
purposes hereof, the unfinished surface is defined as including but not limited to all paneling,
tile, wallpaper, paint, molding and other materials constituting part of the interior surfaces of
those walls.
4.1.3. Apertures. Where there are apertures in any boundary, including but not
limited to, windows and doors, the Unit boundaries shall extend to the interior, unfinished
surfaces of such apertures, including all frameworks thereof, exterior surfaces made of glass
or other transparent materials, exterior doors of any type, including the locks, hinges, and other
hardware, and all framing and casings thereof.
4.1.4. Additional Items Included within the Units. All of the following items are
included within each Unit (some of which items may not necessarily be provided to Owners
by the Declarant), if such items are wholly or partially located within a Unit and designed and
installed to serve only such Unit.
(A) All non -load bearing walls and partitions, doors, door frames, door
hardware, windows, windowpanes, window frames, and window
screens;
(B) All kitchen equipment and fixtures, including without limitation,
ovens, refrigerators, freezers, sinks, ranges, cabinets, dishwashers,
exhaust fans, and waste disposal units;
(C) All bathroom, lavatory and plumbing fixtures and equipment,
including, without limitation, sinks, tubs, showers, toilets, vanities,
exhaust fans, and cabinets;
5- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
(D) All electrical and lighting fixtures, including without limitation,
outlets, switches, lamps, bulbs, outlet boxes, switch boxes,
telephone outlets, circuit breakers, and circuit breaker panels; and
(E) All floor and wall coverings, including, without limitation,
carpeting, tiling, wallpaper, and paint.
4.1.5. Items Excluded from the Units. All pipes, ducts, vents, wires, conduits, and
other facilities, equipment, or fixtures running through any interior wall, or horizontal or
vertical portion of a Unit for the furnishing of any utility service, heating, cooling or ventilation
to any other Unit or Common Area are excluded from the Units.
In cases not specifically covered in this Section 4. 1, or in any case of conflict or ambiguity,
the graphic depictions of the Unit boundaries set forth on the Plat shall control in determining the
boundaries of a Unit, except the provisions of Sections 4.1.3., 4.1.4., and 4.1.5, above shall control
over the Plat.
4.2. Legal Descriptions of Units. For purposes of conveying, mortgaging, or otherwise
affecting title, any Unit may be legally described by its identifying number as shown on the Plat.
Such legal description shall be construed. to describe the Unit and the appurtenant undivided
interest in the Common Area and to' incorporate all the rights and limitations incident to the
ownership of a Unit in the Project. Such legal description shall be substantially as follows:
Unit No. , Brigham Mill Apartments, a subdivision of the
City of Rexburg, Madison County, Idaho, according to the duly
recorded plat thereof.
4.3. Conveyances and form of Holding Units, The Units in the Project may be
conveyed and recorded as individual properties capable of independent usage, each having its own
exit to the Common Area of the Project. Each Unit may be held in any traditional form of holding
real. property interests including, but not limited to, community property, tenancy in common and
joint tenancy with right of survivorship. The Owners of the respective Units shall have the absolute
right to lease the areas within each Unit provided the lease is made subject to the rules and
regulations made by the Board
4.4. Subdivision into Additional Condominium Units. The Declarant shall have the
right to subdivide Units into additional Units. In such event, the Declarant shall determine if the
ownership in the Common Area shall be diluted to reflect the additional ownership interests or if
only the ownership interest of the original Unit being subdivided shall be divided. Further, the
Declarant shall determine what percentages of the Common Expenses shall be attributable to and
payable by the new Units.
ARTICLE 5
NATURE OF OWNERSHIP
5.1. Ownership of Common Area. Each Owner shall own an undivided interest in the
Common Area as a tenant-in-common with all the other Owners in accordance with their
6- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
Ownership Percentages. Except as otherwise limited in this Declaration, each Owner shall have
the right to use the Common Area for all purposes incident to the use and occupancy of its Unit
and all other incidental uses permitted by this Declaration, which right shall be appurtenant to and
run with the Unit.
5.2. Covenants Appurtenant to Units. All rights or interests and all obligations or
restrictions of an Owner created hereunder shall be deemed appurtenant to the Owner's Unit and
shall not be separable therefrom. Any conveyance or encumbrance of a Unit shall also be deemed
a conveyance or encumbrance of those appurtenant rights or interests even though such rights or
interests are not expressly referred to in such conveyance or encumbrance.
5.3. Covenants to Run with the Land. This Declaration and all covenants, restrictions,
limitations, easements, conditions, and uses as herein provided for shall constitute covenants to
run with the land hereby included within the Property and shall be a burden and/or a benefit to the
Declarant, its successors and assigns, and to any Person acquiring any interest in the Project, and
to their heirs, executors, administrators, personal representatives, successors or assigns.
ARTICLE 6
RIGHTS AND EASEMENTS
6.1. Rights of Use and Enjoyment. Every Owner shall have a nonexclusive right for
the use and enjoyment of the Common Area, which shall be appurtenant to and shall pass with the
title to every Unit, subject to the restrictions set forth in this Declaration, as supplemented from
time to time.
6.2. Delegation of Use and Enjoyment. Any Owner may delegate, in accordance with
the Declaration, its right of use and enjoyment in the Common Area, to its tenants, employees,
family, guests, or invitees.
6.3. Recorded Easements. The Property, and all portions thereof, shall be subject to
all easements shown on any recorded Plat affecting the Property, or any portion thereof, and to any
other easements of record or of use.
6.4. Easements for Encroachment and Support. There shall be reciprocal
appurtenant easements of encroachment as between each Unit and such portion or portions of the
Common Area adjacent and subjacent thereto or as between adjacent and subjacent Units due to
the unwilful placement or settling or shifting of the Improvements, including, without limitation,
structures, beams, stairwells, pillars, load-bearing walls, walkways, and sidewalks constructed,
reconstructed, or altered thereon in accordance with the terms of this Declaration. Easements of
encroachment shall be valid only so long as the encroachments exist, and the rights and obligations
of Owners shall not be altered in any way because of encroachments, settling, or shifting of the
Improvements; provided, however, that in no event shall a valid easement for encroachment occur
due to the willful act or acts of an Owner. In the event a structure on any Unit is partially or totally
destroyed, and then repaired or rebuilt, the Owners of each Unit agree that minor encroachments
over adjoining Units that existed prior to the encroachment may be reconstructed pursuant to the
easement granted by this Section. Every portion of a Unit which contributes to the structural
7- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
support of the Building shall be burdened with an easement of structural support for the benefit of
all other Units and the Common Area.
6.5. Easements for Access. Declarant expressly reserves for the benefit of all the
Property reciprocal easements of ingress and egress for all Owners to and from their respective
Units for installation and repair of utility services; for drainage of water over, across, and upon the
Common Area resulting from the normal use of the Units; and for necessary maintenance and
repair of any Improvement including, without limitation: fencing, retaining walls, lighting
facilities, mailboxes, sidewalk abutments, trees, and landscaping. Such easements may be used by
Declarant, and by all Owners, their guests, tenants, and invitees, residing on or temporarily visiting
the Property, for pedestrian walkways, vehicular access, and such other purposes reasonably
necessary for the use and enjoyment of a Unit or Common Area. All Owners shall have an
easement over the Common Area for access, ingress, egress, and parking. Such easements may be
used by Declarant and all Owners, their guests, tenants, and invitees, while occupying a Unit, or
portion thereof, or temporarily visiting the Property, for pedestrian or vehicular access and such
other purposes reasonably necessary for the use and enjoyment of a Unit, or portion thereof.
6.6. Easements for Utilities. All Owners shall have an easement over the Common
Area for access, ingress, and egress to and from their respective Units for installation and repair of
utility services; for the drainage of water over, across and upon the Common Area resulting from
the normal use of adjoining Units or Common Area; and for necessary maintenance and repair of
any Improvement including fencing, retaining walls, lighting facilities, mailboxes, sidewalk
abutments, trees, landscaping, and irrigation systems. Notwithstanding anything expressly or
implied contained herein to the contrary, this Declaration shall be subject to all easements
heretofore or hereafter granted by Declarant for the installation and maintenance of utilities and
drainage facilities that are required for the development of the Project. In addition, Declarant
hereby reserves for the benefit of the Association the right to grant additional easements and rights-
of-way over the Property, as appropriate, to utility companies and public agencies as necessary or
expedient for the proper development of the Project until close of escrow for the sale of the last
Unit to a purchaser.
ARTICLE 7
ASSOCIATION GOVERNANCE AND ADMINISTRATION
7.1. Organization. The Association shall be a nonprofit corporation under the
applicable provisions of Idaho law and shall be charged with the duties and invested with the
powers prescribed by law and set forth herein. Declarant may, in its discretion, grant to the
Association a revocable, non-exclusive license to use the name "Sweetwater Properties." Neither
the Articles nor the Bylaws shall be adopted, amended, or otherwise changed or interpreted so as
to be inconsistent with this Declaration. Each Owner shall abide by and benefit from the
provisions, covenants, conditions, and restrictions contained herein. The Association shall not
engage in politics or pursue any political purpose.
8- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
7.2. Purpose. The purpose of the Association shall be to:
7.2.1. Maintain, repair, and replace all Improvements in the Common Area;
including, without limitation: all streets, sidewalks, parking, stairwells, landscaping, and other
Improvements;
7.2.2. Aid and cooperate with the Owners in the enforcement of all conditions,
covenants, and restrictions on or appurtenant to their property; and
the Owners. 7.2.3. Exercise any and all power that may be delegated to it from time to time by
7.3. Membership. Each Owner, by virtue of being an Owner and for so long as such
ownership is maintained, shall be a Member of the Association. Membership in the Association
shall be appurtenant to, and may not be separated from, ownership of the Unit. The memberships
in the Association shall not be transferred, pledged, assigned, or alienated in any way except upon
the transfer of Owner's title to a Unit and then only to the transferee of such title. Any attempt to
make a prohibited membership transfer shall be void and will not be reflected on the books of the
Association.
7.4. Membership Voting. The Association will have two (2) classes of memberships:
7.4.1. Class A Members. Owners other than Declarant shall be known as Class A
Members. Each Class A Member shall have equal voting power and shall be entitled to one (1)
vote for each Unit. When more than one Person holds an interest in any Unit, all such Persons
shall be Members. The vote for such Unit shall be exercised as they determine, but in no event
shall more than one (1) vote be cast with respect to any Unit. Fractional votes shall not be allowed.
7.4.2. Class B Member. Declarant shall be known as the Class B Member and
shall be entitled to two (2) votes for each Unit owned. The Class B Member shall cease to be a
voting Member in the Association when all of Declarant's Units have been sold or leased.
7.5. Association Meetings. Meetings of the Association shall be called and held in
accordance with the Bylaws.
7.6. Board of Directors and Officers. The Association's affairs shall be governed by
a Board composed of not fewer than three (3) persons elected in accordance with the Bylaws. The
foregoing to the contrary notwithstanding, the Declarant shall have the right to appoint all Board
members until the Declarant has sold or leased all the Units or has waived its right of appointment
in writing. Each Board member must be an Owner of a Unit or a representative of an entity owning
a Unit. Members of the Board, as such, shall not receive any stated salary or compensation;
provided, that nothing herein contained shall be construed to preclude any member of the Board
from serving in any other capacity and receiving compensation therefor. The officers of the
Association shall be elected in accordance with the Bylaws. No compensation shall be paid to the
officers for their services as officers unless otherwise authorized by a resolution of the Board. The
Board may require that all officers and employees of the Board handling or responsible for funds
9- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
provide adequate fidelity bonds. The premium on such fidelity bonds shall be a Common Expense
payable by the Association.
7.7. Powers of Board. The Project and business of the Association shall be managed,
operated, and maintained by the Board, subject to approval of Declarant on any and all matters as
long as Declarant has the right to appoint the Board pursuant to Section 7.6. The Board may
exercise all such powers of the Association and do all such lawful acts and things as are provided
for by this Declaration, or by operational rules of regulations as may be adopted from time to time.
These powers shall specifically include, but not be limited to the following:
7.7.1. To determine and levy Assessments to cover the cost of Common Expenses,
7.7.2. To collect, use, and expend the Assessments collected to maintain, care for,
and preserve the Common Area.
7.7.3. To enter into and upon the Units in connection with the maintenance, care,
and preservation of the Common Area and the Property.
7.7.4. To open bank accounts on behalf of the Association and to designate the
signatories to such bank accounts.
7.7.5. To insure and keep insured the Common Area in accordance herewith.
7.7.6. To collect delinquent Assessments by suit or otherwise, to abate nuisances,
and to join or seek damages from the Owners for violations of any rules and regulations so adopted
by the Board.
7.7.7. To make reasonable rules and regulations and to amend the same from time
to time, and such rules and regulations and amendments shall be binding upon the Owners when
the Board has approved them in writing. A copy of such rules and all amendments shall be
delivered to each Owner upon request.
7.7.8. To employ property managers, workmen, janitors, and gardeners; to
purchase supplies and equipment; to enter into contracts; and generally to have the power of
management in connection with the matters hereinabove set forth.
7.7.9. To bring and defend actions by or against more than one Owner and
pertinent to the operation of the Association.
7.7.10. To acquire Units in foreclosure or as a result of abandonment and to take
any and all steps necessary to repair or renovate any Unit so acquired and to vote as an Owner,
offer such Unit for sale or lease or take any other steps regarding such Unit as shall be deemed
proper by the Board.
7.7.11. To maintain, repair, manage, construct, reconstruct, and perform all other
acts necessary and/or pertaining to the Common Area.
10- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
7.7.12. To be indemnified and held harmless by the Association against all costs,
expenses, and liabilities whatsoever, including, without limitation, attorneys' fees reasonably
incurred in connection with any proceeding because of membership therein. Said expenses shall
be Common Expenses and be limited to the extent such liability, damage, or injury is covered by
any type of insurance.
7.7.13. To maintain, repair, care for, and preserve the exterior of buildings,
improvements, and landscaping on the Common Area.
7.7.14. To grant easements where necessary in the Common Area for underground
utilities to serve the Project.
7.7.15. To collect, use, and expend the Assessments collected to maintain, care for,
and preserve the Common Area.
7.8. Rights and Obligations. Without limiting the foregoing powers, the Board shall
have the following specific rights and obligations:
7.8.1. Recordation Requirements. The Board shall record in the office of the
Madison County Recorder all instruments affecting the Property or in which any Owner waives
any right under the provisions of the Act and all amendments to this Declaration or to any of the
previously mentioned documents.
7.8.2. Repair and Maintenance. The Board shall have the authority to employ and
compensate personnel or contractors necessary for the operation, repair, and maintenance of the
Common Area, including, but not limited to: landscape maintenance, snow removal, and parking
lot and street maintenance; to employ and compensate necessary legal and accounting services;
and to purchase materials and supplies for the operation, maintenance, repair, and/or replacement
of any part of the Common Area. The Association shall incorporate low volume irrigation systems
throughout the landscaped areas of the Common Area.
7.8.3. Real Property Taxes and Assessments. The Association shall not be
responsible for the payment of any real property taxes and assessments. Real property taxes and
assessments levied on the Units shall be paid by the respective Owners. Real property taxes and
assessments levied on the Common Area shall be paid by the Owners in accordance with their
Ownership Percentages.
7.8.4. Payment of Expenses. The Board may make all expenditures authorized in
the Annual Budget. All payment vouchers shall be approved by the Board and, after such approval,
shall be paid by the Association. Further, it shall be the duty of the Board to bill, collect, and
receipt the collection of all monthly Assessments and to enforce the collection thereof. Upon ten
(10) days' notice to the Board and upon payment of a reasonable fee therefor, the Board shall
furnish to any Owner a statement of its account setting forth any unpaid Assessment or other
charges due and owing from such Owner. The Board shall have the affirmative obligation to
enforce all provisions of this Declaration and shall retain the services of an attorney when
11- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
necessary to do so. Anything in this Declaration to the contrary notwithstanding, prior to
submitting the first Annual Budget to the Association, the Declarant is authorized to make
reasonable and necessary expenditures on behalf of the Association.
7.8.5. Mortgagor Default. The Board may give to any Mortgagee, which has
furnished to the Board its name and current address, written notification of any default by the
mortgagor of performance of such mortgagor's obligations under this Declaration or any duly
adopted rules or regulations pertaining to the Project which default has been demanded to be
corrected by the Board and which default has not been cured within thirty (30) days.
7.8.6. Liability of the Board and Owners. Any contract, agreement, or
commitment made by the Board is made as agent for the Association and no member of the Board
nor individual Owner shall be liable under such contract, agreement, or commitment. The Board
shall have no liability to the Owners in the management of the Association except for willful
misconduct or bad faith.
7.8.7. Retention of Declarant for Administrative Assistance. The Board may
reimburse the Declarant for expenses incurred by the Declarant for administrative assistance
provided to the Board (e.g., secretarial services, postage, photocopies, etc.); provided that such
reimbursement shall be no more than $500.00 per year.
7.8.8. Accounting. The books and accounts of the Association shall be kept under
the direction of the Board and in accordance with reasonable standards of accounting procedures.
At the close of each accounting year, the books and records of the Project shall be examined by a
person or firm approved by the Association. A report of such examination shall be prepared and
submitted to the Owners at or before the annual meeting of the Association. Financial reports,
such as are required to be furnished, shall be available at the principal office of the Board for
inspection at reasonable times by any Owner. Any Mortgagee shall, upon request, be entitled to
inspect the books and records of the Project during normal business hours and receive the most -
recent annual financial statement of the Association.
7.9. Committees. The Board may designate one or more committees, each of such
committees to consist of at least one director, which may exercise the powers of the Board in the
management of the business and affairs of the Association. The Board may expressly delegate the
authority to execute all documents to complete and confirm any business or affairs so delegated to
the committee. Committees established by resolution of the Board shall keep regular minutes of
their proceedings and shall report the same to the Board as required.
7.10. Property Manager. The Board may retain a Property Manager to manage the
operations, business, and affairs of the Association, including all of the Board's rights, obligations,
and duties under this Declaration. The terms of the employment, rights, responsibilities, and
compensation of the Property Manager shall be as determined by the Board. The compensation of
the Property Manager shall be a Common Expense.
12- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
ARTICLE 8
ASSESSMENTS
8.1. Assessments; Creation of Lien and Personal Obligation. Each Owner of any
Unit, by acceptance of a deed therefor (whether or not it shall be so expressed in such deed), is
deemed to covenant and agree to pay to the Association the Regular, Limited, and Special
Assessments to be fixed, established, and collected from time to time as hereinafter provided. The
Regular, Limited, and Special Assessments, together with interest, costs of collection, and
reasonable attorney's fees, shall be a charge on the Unit and shall be a continuing lien upon the
Unit against which such Assessment is made. Each such Assessment, together with interest, costs
of collection, and reasonable attorneys' fees, shall also be the personal obligation of the Owner of
such Unit at the time when the Assessment fell due.
8.2. Regular Assessments. The Association shall levy Regular Assessments against the
Owners and their Units for all Common Expenses.
8.3. Limited Assessments. The Association may levy a Limited Assessment against a
particular Owner and its Unit in an amount equal to the cost incurred by the Association in
connection with corrective action or maintenance, repair, replacement, and operation activities
performed pursuant to the provisions of this Declaration that is directly attributable to the Owner,
including interest and, without limitation: damages to any Common Area; maintenance, repair,
replacement, and operation activities performed for any Common Area; or the failure of an Owner
to keep the Owner's Unit in proper repair.
8.4. Special Assessments. In addition to the Regular Assessments authorized above,
the Association may levy, in any assessment year, Special Assessments applicable to that year only
for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair,
or replacement of a capital improvement for the Common Area, including fixtures and personal
property related thereto, provided that any such Assessments shall have the assent of two-thirds
(2/3) of the votes of the Members who are voting in person or by proxy at a meeting duly called
for this purpose. Any such Special Assessments shall be payable over such a period as the Board
shall determine. "Improvements" as used in this Section shall be limited to include only capital
expenditures exceeding the sum of $5,000.00. Expenses less than said amount are deemed to be
normal repairs and not within the provisions of this Section.
8.5. Exempt Property. The following property shall be exempt from the Assessments
created herein:
8.5.1. All property expressly dedicated to and accepted by a local public authority;
8.5.2. All Units owned by the Association;
8.5.3. All Units owned by Declarant, until transferred or leased to an Owner or
occupant; and
8.5.4. All property designated as Common Area.
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BRIGHAM MILL APARTMENTS
8.6. Annual Budget. Subject to Section 8.8 below, the Board shall, from time to time,
but at least each fiscal year, fix and determine a proposed budget representing the sum(s) necessary
and adequate for the continued operation, management, maintenance, repair, insurance, liabilities,
renovations, legal and accounting fees, any necessary reserve funds, and other Common Expenses
of the Association for the next fiscal year and shall send a copy of the proposed budget and any
supplement thereto to every Owner. The proposed budget shall then be presented at a meeting of
the Association at least one (1) month before the commencement of the budgeted -for year. Unless
disapproved by two-thirds (2/3) of the votes of all the Owners at such meeting, the proposed budget
shall become the Annual Budget for the upcoming fiscal year.
8.7. Assessments to Owners. Subject to Section 8.8 below, all portions of the Annual
Budget shall be assessed to the Owners (except the Declarant) in accordance with their Ownership
Percentages. Owners shall pay the Assessments when due without any deduction on account of
any set-off or claim of any nature whatsoever which an Owner may claim to have against the
Association.
8.7.1. Such Assessments shall be payable, at the Board's discretion, in either (i)
one (1) annual payment due in advance on January 2nd of each year or (ii) twelve (12) equal
monthly installments due in advance beginning on January 2nd and thereafter on the first day of
each calendar month of each year.
8.7.2. Provided, however, that no Unit shall be responsible for Regular
Assessments until the earlier of (i) the issuance of a certificate of occupancy for a. Building on the
Unit; or (ii) one (1) year after Declarant's sale of the Unit.
8.8. Initial Assessments. As long as Declarant has the right to appoint the Board
pursuant to Section 7.6, the Annual Budget shall not be required and the Owners' responsibility
for Regular Assessments shall be reasonably determined by Declarant, which may not be
consistent with the Ownership Percentages. Each Owner's Regular Assessments during such
period shall not exceed the amount of $300.00 per month, and Declarant shall contribute to the
Association all moneys required to fully pay all Common Expenses in excess of the amounts
collected pursuant to the foregoing sentence.
8.9. Adjustments. The Board may at any time and from time to time until the close of
the budget year, increase or decrease the amount previously fixed as the Annual Budget and adjust
the annual payment or the monthly installments assessed against each Owner accordingly.
8.10. Costs of Collection. Each Owner shall pay all Assessments when due. Any part
or all of an Assessment not paid within ten (10) days of its due date shall bear interest thereon at
eighteen percent (18%) per annum until paid. All costs of collection, including reasonable
attorneys' fees, costs of suit, and costs of establishing a lien, or of foreclosure of a lien, shall be
payable by said Owner.
14- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
8.1.1. Collection by Lien and Foreclosure. The lien for any unpaid Assessments and
costs of collection may be recorded and foreclosed in accordance with Idaho Code Section 55-
1518, as amended or superseded.
8.12. Statement of Common Charges. Upon the written request of any Owner or
Mortgagee of any Unit herein, the Board shall promptly furnish a written statement of the unpaid
Assessments due from such Owner. Any Mortgagee may pay any amount shown and thereby shall
have a lien on such Unit for the amounts paid.
8.13. No Exclusions. No Owner shall be exempt from liability for contribution toward
the Common Expenses by waiver of the use or enjoyment of any of the Common Area, or by
abandonment of its Unit. The Owners shall not by act or omission seek to abandon the status of
the Project except as provided hereinafter or as allowed by the law.
8.14. Reserve Fund Upon Transfer. If an Owner transfers its Unit to another, its interest
in any reserve fund or funds shall be deemed to also have been transferred to the new Owner as an
appurtenance to the transferred Unit.
8.15. Buyer Liable. The buyer of a Unit shall be jointly and severally liable with the
seller for all unpaid Assessments owed by the Seller at the time of the conveyance, but such liability
shall be without prejudice to the buyer's rights to recover from the seller the amounts paid by the
Buyer therefor.
8.16. Priorities. If a Mortgagee or other purchaser obtains title by reason of a foreclosure
of a Mortgagee encumbering a Unit, such purchaser, and its successor or assigns, shall not be liable
for any Assessment, a notice of assessment for which was recorded in the Madison County
Recorder subsequent to the date when such Mortgage was recorded in that office. It is understood,
however, that the above shall not be construed to prevent the Board from claiming and recording
liens to secure the payment of such Assessments and from foreclosure on such liens as provided
by law, but such lien shall be subordinate to such prior recorded Mortgage.
8.17. Assignment of Rents. If any Owner who is renting its Unit shall default for a
period of one (1) month in the payment of any Assessments, the Board may, at its option, and for
so long as such default shall continue, demand and receive from any tenants thereof any portion
of the rent due or becoming due, and to the extent such rent is paid to the Association such tenant
shall be discharged of liability to the Owner.
ARTICLE 9
RULES AND REGULATIONS
9.1. Administrative Rules and Regulations. The Board shall have the power to adopt
and establish by resolution, such building, management, use, and operational rules and regulations
as it may deem necessary for the maintenance, operation, management, occupation, and control of
15- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
the Project, subject to the approval of Declarant as long as Declarant has the right to appoint the
Board pursuant to Section 7.6. The Board may adopt the initial regulations governing the use of
the Project by the Owners without giving notice to the Owners; however, subsequent regulations
shall be adopted only after due notice of the proposed regulation or regulations are given to the
Owners, and the Owners ..are given an opportunity to present arguments for or against such
regulations. Such regulations shall not be inconsistent with the provisions of this Declaration but
may otherwise deal with any matters that are a general concern to all Owners. When an
amendment, alteration, or replica of a regulation is furnished in writing to the Owners, it shall
become effective
9.2. Obligation of Owners to Comply. All Owners shall comply with all provisions
of this Declaration and the administrative rules and regulations pertaining to the Project and shall
require such compliance from their tenants, guests, employees, and any other person whom they
invite upon the Property. All agreements, decisions, and determinations lawfully made by the
Board shall be deemed to be binding on all Owners and shall inure to their benefit. Unless
otherwise provided in this Declaration, each Owner, any group of Owners, or the Board shall have
standing authority to enforce by any legal means, including suit for specific performance,
injunctive relief or damages, the provisions of this Declaration, and any duly adopted decisions or
resolutions of the Association or Board
9.3. Owner's Obligation to Maintain and Repair. Each Owner, at its expense, shall
keep its Unit (exclusive of Common Area) in good order, condition, and repair and in a clean and
sanitary condition, and shall do all maintenance and redecorating which may at any time be
necessary to maintain the good appearance of its Unit. Owner shall repair all injury or damages
to the Property caused by the deliberate, negligent, or careless action or inaction of such Owner,
its agents, employees, tenants, guests, and/or invitees and all such repairs, maintenance, and
redecorating shall be of a quality and kind at least equal to the original work.
9.4. Neglect. No Unit or Common Area or portions thereof shall be neglected or
permitted to fall into an unsightly, displeasing, or unattractive state, or permitted to be overgrown
with weeds or strewn with rubbish. The Association shall have the power and shall be authorized
at its discretion and at the request of any other Owners in such properties, to remove or to take any
other action upon premises to remove rubbish, garbage, overgrown weeds, or such other
unsightliness without responsibility or liability to the complaining Owners, and at the expense of
the failing or neglecting Owners.
9.5. Garbage and Refuse Disposal. No Unit, Common Area, or portion thereof,
included within these properties shall be used or maintained as a dumping ground for rubbish. No
machinery, appliances, or unsightly materials will be used or stored in or around any Unit. Trash,
garbage, and other waste materials shall be deposited only in dumpsters meeting the requirements
of the sanitation ordinances of the City of Rexburg, Idaho, and the regulations of the State of Idaho
health authorities. The Declarant shall determine the locations of all dumpsters and/or trash bins
to be located on the Property, which shall be screened from the public right-of-way on days of no
trash service in the neighborhood.
9.6. [Reserved].
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BRIGHAM MILL APARTMENTS
9.7. Temporary Structures. No structure of a temporary character, trailer, basement,
shack, garage, barn, or other outbuilding shall be used on the Property at any time as a residence
whether temporarily or permanently.
9.8. Leasing of Units. The Owners of the respective Units shall have absolute right to
lease or rent out the Unit or any portion thereof. However, any such lease shall be subject to the
covenants and conditions of this Declaration and any rules and regulations made by the
Association. Any breach of these covenants and conditions or of these rules and regulations shall
constitute a default under the lease or rental agreement.
9.9. Common Area. Subject to the limitations contained in this Declaration, each
Owner shall have the nonexclusive right to use and enjoy the Common Area. The Common Area
shall be used only for the purposes for which they are intended, i.e., the furnishing of services and
facilities for the enjoyment of the adjacent Units.
9.1.0. No Nuisance. No use or practice shall be permitted on the Property that is a source
of annoyance to the residents or that interferes with the peaceful possession and proper use of the
Project by its Owners. All parts of the Property shall be kept in a clean and sanitary condition, and
no rubbish, refuse, or garbage shall be allowed to accumulate nor any fire hazard to exist. No
Owner shall permit any use of its Unit or of the Common Area that will increase the rate of
insurance upon the Property. No immoral, improper, offensive, or unlawful use shall be made of
any part of the Property. Without limiting the generality of any of the foregoing provisions, no
external speakers, horns, whistles, bells, or other sound devices, except used exclusively for
security purposes, shall be located, used, or placed upon any Unit or Common Area.
9.11. Signs. Until the Declarant no longer owns any Unit in the Project, Declarant shall
determine the use of any monument signs on the Project, and no signs or advertisements shall be
displayed on or from any Unit without the prior written approval of the Declarant. Once Declarant
no longer owns any Unit in the Project, the Board shall determine the use of any monument signs
on the Project, no signs or advertisements shall be displayed on or from any Unit or the Common
Area without the written approval of the Board.
9.12. Parking. The access and parking areas of the Common Area shall only be used for
operating and parking vehicles by the Owners and their tenants, employees, guests, and invitees.
All parking in the Common Area shall be on a first come, first served basis.
9.13. No Partition. Idaho Code Section 55-1511(c) shall have no application to the
Project. A Unit shall not be partitioned as between Persons having an interest therein, but if
grounds for such partition exist at law or in equity, the Unit shall be sold as a Unit and the proceeds
divided in accordance with law.
9.14. Communication. All Owners shall designate a single person to communicate with
the Board or Property Manager on matters relating to the operations, business, and affairs of the
Association, including, but not limited to, matters related to the operation, maintenance, and repair
of the Common Area. All communications by the Owner and its employees, agents, and tenants to
17- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
the Board or Property Manager shall be through such designated person. In the event that a
Property Manager has been retained, the Owners agree to communicate all issues relating to the
operations, obligations, business, and affairs of the Association to the Property Manager directly,
and the Owners shall not communicate on any matter related to the operations, business, and affairs
of the Association, including, but not limited to, the maintenance or operation of the Common
Area, to the individual Board members, the Declarant or any contractors or workers on the Property
unless specifically directed otherwise by the Board, the Declarant or Property Manager. The
Owners agree that the provisions of this Section are a material consideration in their decision to
acquire a Unit in the Project, and repeat violations of the provisions of this Section shall be deemed
to be a nuisance subject to recovery of damages or for negative or affirmative injunctive relief.
ARTICLE 10
ARCHITECTURAL CONTROL
10.1. Architectural Control. Until the last Unit has been transferred to an Owner, the
Declarant shall have the sole right to exercise the rights, obligations, and powers of the Board set:
forth in this Section 10.1. Subject to the provisions of Section 10.2.1, no alteration of any existing
Improvements shall be made, until the plans and specifications showing the nature, kind, shape,
configuration, height, materials, location, and such other detail as the Board may require, shall
have been submitted to and approved in writing by the Board as to the harmony of the external
design and location in relation to surrounding structures and topography and as to conformity with
requirements of this Declaration. In the event the Board fails to approve, disapprove, or specify
the deficiency in such plans, specifications and location within thirty (30) days after submission to
the Board in such form as they may require, it shall be deemed approved.
10.1.1. Design Requirements. The exterior surfaces of each Unit shall have such
colors as may be approved by the Board.
10.1.2. Discretion of the Board. The Board shall have the right to refuse to approve
any design, plan, or color for Improvements, construction, or alterations which, in its opinion, are
not suitable or desirable for any reason, aesthetic or otherwise. The Board may not approve any
such design, plan, or color if it violates any provision of the City Code of the City of Rexburg. In
so passing on such design, the Board shall have the privilege in the exercise of its discretion to
take into consideration the suitability of the proposed structure or alteration, the materials of which
it is to be built, and the exterior color scheme in relation to the site upon which it is proposed to be
erected. The Board may also consider whether the design of the proposed alteration is in harmony
with the surroundings, the effect of the alteration when viewed from the adjacent or neighboring
property, and any and all other factors which, in the Board's opinion, shall affect the desirability
of such proposed Improvement or alteration. Actual construction shall comply with the plans and
specifications approved.
10.1.3. Rules. The Board is hereby authorized to adopt rules and regulations to
govern its procedures and the requirements for malting submissions and obtaining approval as the
Board deems appropriate and in peeping with the spirit of due process of law. The Board is further
hereby empowered to adopt such rules and regulations as it shall deem appropriate, consistent with
the provisions of this Declaration, pertaining to matters of design, materials, colors, and aesthetic
18- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
interests. Any such rules and regulations may be amended from time to time, in the sole discretion
of the Board. The failure of the Board to adopt any such rules and regulations shall not form the
basis for an attack upon the exercise of Board's discretion, it being the intent of this Declaration
to provide the Board with as broad discretion as is permissible under the law.
10.1.4. Fees. The Board may establish, by its adopted rules, a fee schedule for an
architectural review fee to be paid by each Owner submitting plans and specifications for approval.
No submission for approval will be considered complete until such fee has been paid. Such fee
shall not exceed such reasonable amount as may be required to reimburse the Board for the costs
of professional review of submittals and the services of a consultant to administer the matter to its
completion, including inspections which may be required.
10.1.5. Waivers. The approval of any plans, drawings, or specifications for any
Improvement, alteration, or for any matter requiring the approval of the Board, shall not be deemed
a waiver of any right to withhold approval of any similar plan, drawing, specifications, or matters
subsequently submitted for approval.
10.1.6. Non -Liability of Board Members. Neither the Board nor any member
thereof, nor its duly authorized Property Manager or Board representative, nor the Declarant, shall
be liable to the Association or to any Owner for any loss, damage, or injury arising out of or in any
way connected with the performance of the Board's duties hereunder, unless due to the willful
misconduct of the Board. The Board shall review and approve or disapprove all plans submitted
to it for any proposed Improvement, alteration, or addition solely on the basis of aesthetic
considerations and the overall benefit or detriment which would result to the immediate vicinity
and to the Project generally. The Board shall take into consideration the aesthetic aspects of the
architectural designs, placement of building, landscaping, color schemes, exterior finishes,
materials, and similar features, but shall not be responsible for reviewing, nor shall its approval of
any plan or design be deemed approval of any plan or design from the standpoint of structural
safety or conformance with building or other codes.
10.2. Improvements by the Declarant.
10.2. 1. Exemption from Architectural Control. Any Improvement, sign, or
landscaping commenced, built, constructed, placed, or maintained on the Property or any Unit by
the Declarant shall be exempt from the requirements of Section 10.1.
10.2.2. Deviation from Plat and Plans. Declarant shall have the right to add to,
delete from, modify, or otherwise deviate from the project development plans as contemplated by
any Plat and/or any site improvement plans, upon obtaining the approval of the City of Rexburg,
Idaho.
10.2.3. Declarant's Limited Warranty for Common Area Improvements. The
Declarant shall warrant that each Improvement commenced, built, constructed, or placed in the
Common Area by or on behalf of the Declarant shall be free from defects in the original materials
and workmanship, as hereinafter defined, for one (1) full year from the date said Improvement was
substantially complete (the "Limited Warranty"). Defective materials and/or workmanship shall
19- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
be materials or workmanship not substantially in accordance with the construction standards
commonly used in the industry. The Declarant shall have the right to determine that materials and
methods to be used in making repairs under the Limited Warranty and to determine whether an
Improvement should be repaired or replaced. THE LIMITED WARRANTY IS THE ONLY
WARRANTY PROVIDED BY DECLARANT. NO OTHER WARRANTY, GUARANTEE, OR
UNDERTAKING, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH
RESPECT TO THE IMPROVEMENTS AND CONSTRUCTION THEREOF SHALL BIND OR
OBLIGATE THE DECLARANT. ALL OTHER WARRANTIES, GUARANTEES, AND
UNDERTAKINGS ARE HEREBY EXPRESSLY DISCLAIMED. SPECIFICALLY, BUT
WITHOUT LIMITING THE FOREGOING, DECLARANT HEREBY EXPRESSLY
DISCLAIMS THE IMPLIED WARRANTIES OF HABITABILITY, MERCHANTABILITY,
AND FITNESS FOR A PARTICULAR PURPOSE. The Limited Warranty does not included
remedies for damage to the Improvements caused by normal wear and tear during normal usage,
casualty, acts of God, use for a purpose for which the Improvements were not intended, improper
or insufficient maintenance, modifications performed by others, or abuse. The Limited Warranty
does not include damage or injury of any kind or nature whatsoever resulting from mycotoxins,
mold, fungal spores, or volatile organic compounds. The Declarant shall assign all manufacturer's
warranties related to the Common Area Improvements to the Association.
10.2.4. Construction Activities by Declarant. The Declarant shall have the right
and easement to use the Common Area (including, but not limited to, the parking areas) for
construction staging and construction activities. The Declarant shall have the right to restrict the
Owner's access to or use of any Common Area so used when necessary, in the Declarant's opinion,
for safety, security or convenience. The Owners understand and agree that the Declarant will
conduct construction activities on the Property during normal business hours and the Owners
waive any claim of nuisance or disruption from such activities. Declarant shall have the right to
use all Common Area power and water for its construction, repair, and maintenance activities
without reimbursement to the Association. The Association and Declarant shall also have the right
to use any exterior water spigot or power outlet on any Unit for construction, repair, and
maintenance activities without reimbursement to the Owner, provided that such use is not, in the
Board's sole discretion, excessive or wasteful.
10.2.5. Remedies Limited to Association Only, The Association shall have the
exclusive right and power to enforce the provisions of this Section 10.2, and no Owner, or anyone
claiming by or through an Owner, shall have the right to enforce the provisions of this Section 10.2
except through the Association. The Association shall only have the right to enforce the
obligations in this Section 10.2 against the Declarant and shall have no right to enforce such
obligations against the Declarant's members, managers, officers, agents, employees, or
contractors.
ARTICLE 11
INSURANCE
11.1. Types of Insurance. The Association may obtain and keep in full force and effect
at all times the following insurance coverage provided by companies duly authorized to do
business in Idaho. The provisions of this Article shall not be construed to limit the power or
20- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
authority of the Association to obtain and maintain insurance coverage in addition to any insurance
coverage required hereunder in such amounts and in such forms as the Association may deem
appropriate from time to time. The Association may secure and maintain at all times the following
insurance and bond coverage:
11.1.1. The Association may obtain a property insurance policy covering any
Association owned property, providing as a minimum fire and extended coverage and all other
coverage in the kinds and amounts commonly required by private institutional mortgage investors
for projects similar in construction, location, and use on a replacement cost basis in an amount not
less than one hundred percent (100%) of the insurable value (based upon replacement cost).
11.1.2. The Association may obtain a commercial general liability insurance policy
covering all of the Association owned facilities in an amount not less than $1,000,000.00. Such
insurance policy shall contain a severability of interest endorsement which shall preclude the
insurer from denying the claim of an Owner because of negligent acts of the Association or other
Owners. The scope of coverage must include all other coverage in the kinds and amounts required
by private institutional mortgage investors for projects similar in construction, location and use.
11.1.3. The Association may obtain liability insurance affording coverage for the
acts, errors and omissions of its directors and officers, including members of any committees as
may be appointed from time to time by the Board in such amount as may be reasonable in the
premises.
11.1.4. The Association may purchase workmen's compensation and employer's
liability insurance and all other similar insurance with respect to employees of the Association in
the amounts and in the forms now or hereafter required by law.
11.1.5. The Association may obtain bonds and insurance against such other risks,
of a similar or dissimilar nature, as it shall deem appropriate with respect to the protection of the
Property, including any personal property of the Association located thereon, its directors, officers,
agents, employees, and association funds.
11.2. Insurance Provisions. The following additional provisions shall apply with
respect to all insurance policies obtained by the Association:
11.2.1. Insurance secured and maintained by the Association shall not be brought
into contribution with insurance held by the individual Owners or their Mortgagees.
11.2.2. Each policy of insurance obtained by the Association shall, if possible,
provide a waiver of the insurer's subrogation rights with respect to the Declarant, the Association,
the Owners and their respective owners, officers, servants, agents and guests; that it cannot be
canceled, suspended, or invalidated due to the conduct of any agent, officer or employee of the
Association without a prior written demand that the defect be cured; that any other insurance clause
therein shall not apply with respect to insurance held individually by the Owners.
21- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
11.2.3. All policies shall be written by a company licensed to write insurance in the
State of Idaho and all hazard insurance policies shall be written by a hazard insurance carrier
holding financial rating by Best's Insurance Reports of Class VI or better.
11.2.4. All policies shall name the Declarant as an additional insured.
ARTICLE 12
DAMAGE OR DESTRUCTION
12.1. Association as Attorney in Fact. Each and every Owner hereby irrevocably
constitutes and appoints the Association as its true and lawful attorney-in-fact in its name, place,
and stead for the purpose of dealing with the Improvements on the Common Area upon damage
or destruction as provided in this Section or a complete or partial taking as provided in the next
Section below. Acceptance by any grantee of a deed or other instrument of conveyance from
Declarant or from any Owner shall constitute appointment of the attorney-in-fact as herein
provided. As attorney-in-fact, the Association shall have full and complete authorization, right,
and power to make, execute, and deliver any contract, assignment, deed, waiver, or other
instrument with respect to the interest of any Owner which may be necessary or appropriate to
exercise the powers granted herein to the Association as attorney-in-fact.
1.2.2. Estimate of Damages or Destruction. As soon as practical after an event causing
damage to or destruction to any part of the Common Area, the Association shall, unless such
damage or destruction shall be minor, obtain an estimate or estimates that it deems reliable and
complete of the costs of repair and reconstruction of that part of the Common Area so damaged or
destroyed. "Repair and reconstruction" as used in this Section shall mean restoring the damaged
or destroyed Improvements to substantially the same condition in which they existed prior to the
damage or destruction.
12.3. Repair and Reconstruction. As soon as practical after obtaining estimates, the
Association shall diligently pursue to completion the repair and reconstruction of the damaged or
destroyed Improvements. As attorney-in-fact for the Owners, the Association may take any and
all necessary or appropriate action to effect repair and reconstruction, and no consent or other
action by any Owner shall be necessary. Assessments of the Association shall not be abated during
any period of insurance adjustments and repair and reconstruction.
12.4. Funds for Repair and Reconstruction. The proceeds received by the Association
from any property insurance shall be used for the purpose of repair and reconstruction. If the
proceeds of the insurance are insufficient to pay the estimated or actual cost of such repair and
reconstruction, the Association may assess and collect in advance from all Owners a Special
Assessment sufficient to provide funds to pay such estimated or actual costs of repair and
reconstruction. Further Assessments may be made in like manner if the amounts collected prove
insufficient to complete such repair and reconstruction.
12.5. Disbursement of Funds for Repair and Reconstruction. The insurance proceeds
held by the Association and the amounts received from the Special Assessments constitute a fund
for the payment of the costs of repair and reconstruction after casualty. It shall be deemed that the
22- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
first money disbursed in payment for the costs of repair and reconstruction shall be made from
insurance proceeds, and the balance from the Special Assessments. If there is a balance remaining
after payment of all costs of such repair and reconstruction, such balance shall be distributed to
the Owners in proportion to the contributions each Owner made as a Special Assessment to the
Association under this Section or, if no Special Assessments were made, then in equal shares per
Unit, first to the Mortgagees and then to the Owners, as their interests appear.
12.6. Decision Not to Rebuild. If Owners representing at least two-thirds (2/3) of the
total allocated votes in the Association and two-thirds (2/3) of the Mortgagees (based upon one (1)
vote for each Mortgage owned) of the Units agree in writing not to repair and reconstruct and no
alternative Improvements are authorized, then and in that event the damaged Common Area shall
be restored to its natural state and maintained as an undeveloped portion of the Common Area by
the Association in a neat and attractive condition, and any remaining insurance proceeds shall be
distributed in equal shares per Unit, first to the Mortgagees and then to the Owners, as their
interests appear.
12.7. Damage or Destruction Affecting Units. In the event of damage or destruction to
any Improvements owned by any Owner, the Owner thereof shall promptly repair and restore the
damaged Improvements to their condition prior to such damage or destruction. If such repair or
restoration is not commenced within one hundred eighty (180) days from the date of such damage
or destruction, or if repair and reconstruction is commenced but then abandoned for a period of
more than ninety (90) days, then the Association may impose a fine of not less than $50.00 per day
on the Owner of the Unit until repair and reconstruction is commenced, unless the Owner can
prove to the reasonable satisfaction of the Association that such failure is due to circumstances
beyond the Owner's control.
ARTICLE 13
CONDEMNATION
13.1. Rights of Owners. Whenever all or any part of the Common Area shall be taken
or conveyed in lieu of and under threat of condemnation by the Board acting as attorney-in-fact
for all Owners under instructions from any authority having the power of condemnation or eminent
domain, each Owner shall be entitled to notice of the taking, but the Association shall act as
attorney-in-fact for all Owners in the proceedings incident to the condemnation proceeding, unless
otherwise prohibited by law.
13.2. Condemnation; Distribution of Award; Reconstruction. The award made for
such partial or complete taking shall be payable to the Association as trustee for all Owners to be
disbursed as follows: If the taking involves a portion of the Common Area on which Improvements
have been constructed, then, unless within sixty (60) days after such taking Declarant and Owners
representing at least two-thirds (2/3) of the Members shall otherwise agree, the Association shall
restore or replace such Improvements so taken on the remaining land included in the Common
Area to the extent lands are available therefor, in accordance with plans approved by the Board. If
such Improvements are to be repaired ojirestored, the provisions in the Section above regarding
the disbursement of funds in respect to casualty damage or destruction which is to be repaired shall
apply. If the taking does not involve any Improvements on the Common Area, or if there is a
23- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
decision made not to repair or restore, or if there are net funds remaining after any such restoration
or replacement is completed, then such award or net funds shall be distributed in equal shares per
Unit, first to the Mortgagees and then to the Owners, as their interests appear.
ARTICLE 14
AMENDMENT
14.1. By the Association. Except as set forth in this Declaration with respect to
amendments and supplements by the Declarant, and except where a greater percentage is required
by express provision in this Declaration, the provisions of this Declaration may be amended,
modified, clarified, supplemented, added to (collectively, "amendment") by an instrument in
writing signed and acknowledged by the President and Secretary of the Association certifying and
attesting that such amendment has been approved by the vote or written consent of Owners
representing a majority of the voting power of the Association, and such amendment shall be
effective upon its recordation with the Madison County Recorder. Notwithstanding the foregoing,
any amendment to this Article 14 shall require the vote or written consent of Members holding
two-thirds (2/3) of the voting power of the Association. Such amendments may add to and increase
the covenants, conditions, restrictions, and easements applicable to the Property but shall not
prohibit or unreasonably interfere with the allowed uses of any Unit which existed prior to the said
amendment. No amendment shall modify or diminish the rights of the Declarant hereunder
without the Declarant's written consent.
14.2. Effect of Amendment. Any amendment of this Declaration approved in the
manner specified above shall be binding on and effective as to all Owners and their respective
Units notwithstanding that such Owners may not have voted for or consented to such amendment
and as to all Mortgagees and other holders of a lien or security interest in any portion of the Project.
14.3. Mortgage Protection. Notwithstanding any other provision of this Declaration,
no amendment of this Declaration shall operate to defeat or render invalid the rights of a Mortgagee
under a Mortgage made in good faith and for value and recorded prior to the recordation of such
amendment; provided, however, that the foreclosure of any such Mortgage shall not affect the
validity or enforceability of this Declaration, as amended.
ARTICLE 15
RIGHTS TO REPURCHASE UNITS
15.1. Right of first Refusal.
15.1.1. If an Owner makes or receives a bona fide offer for the purchase and sale,
conveyance, or other transfer of any Unit, the Owner shall first offer the Unit, in writing, to
Declarant on terms and conditions set forth in the offer. Declarant shall have thirty (30) days after
the transmission of such offer to notify the Owner, in writing, that it either (i) agrees to purchase
the Unit on the terms of the offer, or (ii) declines to purchase the Unit. If Declarant declines to
purchase the Unit or fails to notify the Owner, in writing, that it agrees to purchase the Unit within
24- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
such thirty (30) day period, then the Owner shall be free to sell the Unit to the buyer and on the
terms and conditions set forth in the offer for a period of three (3) months after expiration of such
thirty (30) day period. Upon the Owner's request, Declarant agrees to confirm, in a mutually
acceptable writing with acknowledgment, its decision not to purchase the Unit or its failure to
notify the Owner of its decision within the thirty (30) day period set forth above. If the Unit is not
sold pursuant to the offer within such three (3) month period, the Owner shall again offer the Unit
to Declarant pursuant to this Section 15.1 in connection with the same offer and any future offers
with -respect to -the Unit.
15.1.2. The parties intend that the first right of refusal set forth in this Section 15.1
shall not fail as a result of an Owner extending an offer which, by its terms, cannot be matched by
Declarant, such as an exchange. Therefore, if Declarant is unable to perform under any of the
terms (except for the payment of money) of any offer extended by the Owner, then Declarant shall
have the right to purchase the Unit for cash at a price that is the cash equivalent of said offer. The
"cash equivalent" is the cash price that fairly represents the fair market value of the Unit as
evidenced by the offer in question and as determined by the parties, or if no agreement, then as
determined by an independent appraisal by an appraiser mutually acceptable to the parties, or if no
mutually acceptable appraiser is found, then one appointed by a court of competent jurisdiction.
15.1.3. This Section 15.1 shall not apply to any transfer of a Unit to any third party
related to the Owner through blood or marriage or to any entity owned (in whole or in part) and
controlled by the Owner.
15.1.4. Declarant shall have the right to assign its rights under this Section 15.1 for
any particular offer to the Association or any Member at any time.
15.1.5. Notwithstanding anything in this Declaration to the contrary, any right of
first refusal set forth in this Declaration shall not and may not adversely affect the rights of a
Mortgagee to:
(A) foreclose or take title to a Unit pursuant to the remedies in the
Mortgage.
(B) accept a deed or assignment in lieu of foreclosure in the event of
default by the mortgagor of a Mortgage or the successor in interest
or assignee of any such mortgagor.
(C) sell or lease a Unit acquired by a Mortgagee.
15.2. Closing; Further Actions. In the event of the exercise of any of the rights set forth
in this Article 15, the Declarant and Owners agree to proceed to the closing of such transaction in
good faith and agree to take such steps and extend such courtesies as may be commercially
reasonable to facilitate such closing. The parties shall take such further actions reasonably
necessary to complete or confirm the transactions contemplated, including but not limited to the
execution any and all documents necessary to consummate the closing of the transaction with
acknowledgment or affidavit, if necessary.
25— DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
ARTICLE 16
RIGHTS OF MORTGAGEES
16.1. Notification to Mortgagees. Upon receipt by the Association of a written request
from a Mortgagee or insurer or guarantor of a Mortgage informing the Association of its correct
name and mailing address and number or address of the Unit to which the request relates, the
Association shall provide such Mortgagee or insurer or guarantor with timely written notice of
the following:
16.1.1. Any condemnation loss or any casualty loss which affects a material
portion of the Project or any Unit on which there is a Mortgage held, insured or guaranteed by
such Mortgagee or insurer or guarantor.
16.1.2. Any delinquency in the payment of Assessments or charges owed by a
Unit Owner subject to a Mortgage held, insured or guaranteed by such Mortgagee or insurer or
guarantor or any other default in the performance by the Unit Owner of any obligation under this
Declaration, the Articles or Bylaws, which delinquency or default remains uncured for the period
of sixty (60) days;
16.1.3. Any lapse, cancellation or material modification of any insurance policy
or fidelity bond maintained by the Association;
16.1.4. Any proposed action which requires the consent of a specified percentage
of Mortgagees as set forth in Section 16.2.
16.2. Approval Required for Amendment to Declaration, Articles or Bylaws.
16.2.1. In addition to any other approvals or consents required elsewhere in this
Declaration., no addition of or amendment to any material provisions of this Declaration, the
Articles or Bylaws which establish, provide for, govern or regulate any of the following shall be
effective unless approved by Mortgagees holding Mortgages on at least fifty-one percent (51%)
of all Units which are subject to Mortgages:
(A) Voting rights;
(B) Assessments, assessment liens or subordination of assessment
liens;
(C) Reserves for maintenance, repair and replacement of Common
Areas;
(D) Insurance;
(E) Responsibility for maintenance and repairs;
26- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
(F) Expansion or contraction of the Project, or the addition, annexation
or withdrawal of property to or from the Project;
(G) Boundaries of any Unit;
(H) Reallocation of interests in the Common Areas or rights to their
use;
(I) Convertibility of Units into Common Areas or of Common Areas
into Units;
(J) Imposition of any restrictions on a Unit Owner's right to sell or
lease his Unit;
(K) Restoration or repair of the Project (after a hazard damage or
partial condemnation) in a manner other than that specified in this
Declaration, the Articles and Bylaws;
(L) Any action to partition or sell the Project after substantial
destruction or condemnation occurs; or
(M) Any provisions which expressly benefits such Mortgagee or
insurer or guarantor.
16.2.2. Any action to partition or sell the Project for after substantial destruction
or condemnation of the Project or for other reasons must be approved by Mortgagees that
represent at least fifty - one percent (51 %) of the Units that are subject to Mortgages.
16.2.3. Any Mortgagee who receives a written request to approve additions or
amendments to the Declaration, Articles or Bylaws, which additions or amendments are not
material, who does not deliver or mail to the requesting party a negative response within sixty
(60) days shall be deemed to have approved such request. Any addition or amendment to the
Declaration, Articles or Bylaws shall not be considered material if it is for the purpose of
correcting technical errors or for clarification only. The notice referred to in this subparagraph
must be sent certified or registered mail, with a return receipt requested.
1.6.3. Right of Inspection of Records. Any Unit Owner, Mortgagee or insurer or
guarantor of a Mortgage will, upon written request be entitled to: (i) inspect the current copies of
this Declaration, the Articles and Bylaws and the books, records and financial statements of the
Association during normal business hours; and (ii) receive written notice of all meetings of the
Members of the Association and be permitted to designate a representative to attend all such
meetings.
16.4. Prior Written Approval of Mortgagees. Except as provided by statute in case
of condemnation or substantial loss to the Units or the Common Areas, unless at least fifty - one
percent (51 %) of all Mortgagees (based upon one vote for each Mortgage, owned) or Unit
27- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
Owners (other than the Declarant or other sponsor, developer or builder of the Project) of the
Units have given their prior written approval, the Association shall not be entitled to:
16.4.1. By act or omission, seek to abandon or terminate this Declaration or
partition or sell the Project;
16.4.2. Change the pro rata interest or obligations of any individual Unit for the
purpose of. (i) levying Assessments or charges or allocating distributions of hazard insurance
proceeds or condemnation awards, or (ii) determining the pro rata share of ownership of each
Unit in the Common Areas;
16.4.3. Partition or subdivide any Unit;
16.4.4. By act or omission, seek to abandon, partition, subdivide, encumber, sell
or transfer the Common Areas. The granting of easements for public utilities or for other public
purposes consistent with the intended use of the Common Areas shall not be deemed a transfer
within the meaning of this Subsection;
16.4.5. Use hazard insurance proceeds for losses to any Units or the Common
Areas for any purpose other than the repair, replacement or reconstruction of such Units or the
Common Areas.
Nothing contained in this Section, or any other provisions of this Declaration shall be deemed to
grant the Association the right to partition any Unit without the consent of the Unit Owners
thereof. Any partition of a Unit shall be subject to such limitations and prohibitions as may be
set forth elsewhere in this Declaration or as provided under applicable law.
16.5. Liens Prior to First Mortgage. All taxes, assessments, and charges which may
become liens prior a Mortgage under local law shall relate only to the individual Unit and not to
the Project as a whole.
16.6. Condemnation or Insurance Proceeds. No Unit Owner, or any other party, shall
have priority over any rights of any Mortgagee of the Unit pursuant to its mortgage in the case of
a distribution to such Unit Owner of insurance proceeds or condemnation awards for losses to or
a taking of Units and/or Common Areas.
16.7. Limitation on Partition and Subdivision. No Unit shall be partitioned or
subdivided without the prior written approval of any Mortgage on such Unit.
16.8. Unpaid Dues. Any Mortgagee who obtains title to a Unit pursuant to remedies in
a Mortgage or through foreclosure will not be liable for more than six months of the Unit's
unpaid regularly budgeted dues or charges accrued before acquisition of the title to the Unit by
the Mortgage. If the Association's lien priority includes costs of collecting unpaid dues, the
Mortgagee will be liable for any fees or costs related to the unpaid dues.
28- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
16.9. Conflicting Provisions. In the event of any conflict or inconsistency between the
provisions of this Article 16 and any other provision of this Declaration, the Articles or Bylaws,
the provisions of this Article 16 shall prevail; provided, however, that in the event of any conflict
or inconsistency between the different Sections of this Article or between the provisions of this
Article and any other provision of this Declaration, the Articles or Bylaws with respect to the
number or percentage of Unit Owners, Mortgagees, or insurers or guarantors of Mortgages that
must consent to (i) an amendment of the Declaration, Articles or Bylaws, (ii) a partition or sale
of the Project, or (iii) certain actions of the Association, the provision requiring the consent of the
greatest number or percentage of Unit Owners, Mortgagees, or insurers or guarantors of
Mortgages shall prevail; provided, however, that the Declarant without the consent of any Unit
Owner being required, shall have the right to the extent authorized by other provisions of this
Declaration to amend this Declaration, the Articles or the Bylawsin order to (i) comply with the
Condominium Act or any other applicable law if the amendment does not adversely affect the
rights of any Unit Owner, (ii) correct any error or inconsistency in this Declaration, the Articles
or the Bylaws if the amendment does not adversely affect the rights of any Unit Owner, (iii)
comply with the requirements or guidelines in effect from time to time of any governmental or
quasi -governmental entity or federal corporation guaranteeing or insuring mortgage loans or
governing transactions involving mortgage instruments, or (iv) the rules or requirements of any
federal, state or local governmental entity or agency whose approval of the Project, the Plat or
this Declaration or the Articles or Bylaws is required by law or requested by Declarant.
ARTICLE 17
MISCELLANEOUS
17.1. Notices. Any notices permitted or required to be delivered as provided herein shall
be in writing and may be delivered either personally or by mail. If delivery is made by mail, it
shall be deemed to have been delivered seventy-two (72) hours after the same has been deposited
in the United States mail, postage prepaid, addressed to any Person at the address given by such
Person to the Association for the purpose of service of such notice, or to the residence of such
Person if no address has been given to the Association. Such address may be changed from time
to time by notice in writing to the Association, as provided in this Section.
17.2. Enforcement and Non -Waiver.
17.2.1. Right of Enforcement. Except as otherwise provided herein, any Owner of
any Unit shall have the right to enforce any or all of the provisions hereof against any property
within the Project and Owners thereof.
17.2.2. Violations and Nuisances. The failure of any Owner of a Unit to comply
with any provision hereof, or with any provision of the Articles or Bylaws of the Association, is
hereby declared a nuisance and will give rise to a cause of action in the Declarant, the Association,
or any Owner for recovery of damages or for negative or affirmative injunctive relief or both.
However, any other provision to the contrary notwithstanding, only Declarant, the Association, the
Board, or a duly authorized agent of any of them, may enforce by self-help any of the provisions
hereof only if such self-help is preceded by reasonable notice to the Owner.
29- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
17.2.3. Violation of Law. Any violation of any state, municipal, or local law,
ordinance, or regulation pertaining to the ownership, occupation, or use of any property within the
Project is hereby declared to be a violation of this Declaration and subject to any or all of the
enforcement procedures set forth in this Declaration and any or all enforcement procedures in law
and equity.
17.3. Remedies Cumulative. Each remedy provided herein is cumulative and not
exclusive.
17.4. Non -Waiver. The failure to enforce any of the provisions herein at any time shall
not constitute a waiver of the right to enforce any such provision.
17.5. Interpretation. The provisions of this Declaration shall be liberally construed to
effectuate its purpose of creating a uniform plan for the development and operation of the Project.
This Declaration shall be construed and governed under the laws of the State of Idaho.
17.6. Restrictions Construed Together. All of the provisions hereof shall be liberally
construed together to promote and effectuate the fundamental concepts of the development of the
Project as set forth in the recitals of this Declaration.
17.7. Restrictions Severable. Notwithstanding the provisions of the foregoing Section,
each of the provisions of this Declaration shall be deemed independent and severable, and the
invalidity or partial invalidity of any provision or portion thereof shall not affect the validity or
enforceability of any other provision herein.
17.8. Singular Includes Plural. Unless the context requires a contrary construction, the
singular shall include the plural and the plural the singular; and the masculine, feminine or neuter
shall each including the masculine, feminine and neuter.
17.9. Captions. All captions and titles used in this Declaration are intended solely for
convenience of reference and shall not affect that which is set forth in any of the provisions hereof.
17.10. Successors and Assigns. All references herein to Declarant, Owners, the
Association, or Person shall be construed to include all successors, assigns, partners, and
authorized agents of such Declarant, Owners, Association, or Person.
17.11. Declarant's Discretion. Any time this document calls for the exercise of discretion
by the Declarant, Declarant shall not be required to act reasonably in the exercise of such
discretion.
17.12. Written Approval Required. In each instance where the approval of Declarant,
the Association, the Board, or any governmental or other authority is required herein, "approval"
shall mean the prior written approval of such Person.
30- DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
IN WITNESS WHEREOF, the Declarant has caused its name to be hereunto subscribed as
of the date first set forth above.
DECLARANT:
SWEETWATER PROPERTIES, LLC
By:
Name:
Title:e dwLa c
STATE OF IDAHO )
)ss.
County of�/rv��cf )
This record was acknowledged before me on the 2NA day of 1v1&e , 2022,
by Gjzs t, NELS�„� , as Manager of Sweetwater Properties, LLC.
(stamp)
ADAM SNARR
COMM NO. 2017-0786
NOTARY PUBLIC
STATE OF IDAHO
[MY COMMISSION EXPIRES 10/23/23
Signature of Notary Public
My Commission Expires: /0 -Z3 -7-3 _
GAWPDATA\PDC\17990-008 Sweetwater -Sale Brigham's Mill\Condo Declaration v05.dorx
31— DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
BRIGHAM MILL APARTMENTS
EXHIBIT A
BRIGHAM MILL APARTMENTS
Legal Description of the Property
Brigham Mill Apartments, a subdivision of the City of Rexburg, Madison County, Idaho, according
to the duly recorded plat thereof.
EXHIBIT B
BRIGHAM MILL APARTMENTS
Articles of Incorporation of
Brigham Mill Apartments Owners Association, Inc.
[to be inserted]