HomeMy WebLinkAboutCC&Rs Rev. (1) 5.10.22 - 22-00142 - University View - 649 S 2nd W - Condo Plat - CLEAN COPY
4873-4210-3071.v1
WHEN 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
TABLE OF CONTENTS
Page
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4873-4210-3071.v1
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 .................................................... 2
2.4 Conveyance of a Unit.............................................................................................. 2
2.5 Severance from Residential Lounge and Appurtenant Easements ......................... 3
2.6 Separation, Combination of Units........................................................................... 3
2.7 Fractional Interest Ownership – Reservation Right ................................................ 4
2.8 Calculation of Percentage Ownership Interest ........................................................ 4
ARTICLE III INTERESTS, USE RIGHTS AND RESTRICTIONS ............................................. 4
3.1 Residential Condominium Property – Interests and Use Rights ............................. 4
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 ........................ 24
5.4 Limitation on Powers of the Residential Association Manager ............................ 25
TABLE OF CONTENTS
(continued)
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5.5 Limited Liability – Residential Association Manager and Residential
Association ............................................................................................................ 25
5.6 Residential Association – Personal Liability, Indemnification............................. 25
ARTICLE VI RESIDENTIAL ASSESSMENTS AND PERSONAL CHARGES ...................... 26
6.1 Creation of Personal Obligations For Residential Assessments ........................... 26
6.2 Purpose of Residential Assessments ..................................................................... 26
6.3 Limitation on Residential Association Assessment .............................................. 26
6.4 Reduction of Residential Association Budget ...................................................... 26
6.5 Residential Association Assessment ..................................................................... 27
6.6 Payment of Residential Association Assessment and Taxes ................................ 27
6.7 Special Assessments ............................................................................................. 29
6.8 Personal Charges. .................................................................................................. 30
6.9 Working Capital Contribution .............................................................................. 30
ARTICLE VII ENFORCEMENT OF RESTRICTIONS ............................................................. 30
7.1 In General.............................................................................................................. 30
7.2 Certain Specific Enforcement Powers .................................................................. 31
7.3 Subordination to Certain Encumbrances .............................................................. 33
7.4 Waiver of Homestead Exemption ......................................................................... 33
ARTICLE VIII RESIDENTIAL ASSOCIATION AS ATTORNEY-IN-FACT ......................... 33
8.1 Appointment ......................................................................................................... 33
8.2 General Authority ................................................................................................. 34
ARTICLE IX DAMAGE, DESTRUCTION, OR CONDEMNATION ....................................... 34
9.1 In General.............................................................................................................. 34
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 ............................................................... 36
10.3 Subordination of Residential Assessment Lien .................................................... 36
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
TABLE OF CONTENTS
(continued)
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ARTICLE XII INTENTIONALLY OMITTED ........................................................................... 39
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 ..................................................................................................... 40
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........................................................................ 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 ....................................................... 42
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 ..................................................................................................... 49
15.18 Provisions Run With Land .................................................................................... 49
15.19 Conflict of Provisions ........................................................................................... 49
15.20 Force Majeure ....................................................................................................... 49
TABLE OF CONTENTS
(continued)
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15.21 Acknowledgements ............................................................................................... 49
15.22 Releases................................................................................................................. 54
15.23 Parcel Owner and Apartment Operator Release ................................................... 54
15.24 Agent for Service of Process................................................................................. 54
15.25 Third-Party Beneficiaries ...................................................................................... 55
15.26 Delegation of Parcel Owner Rights and Responsibilities ..................................... 55
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
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4873-4210-3071.v1
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 Madison 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
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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.
ARTICLE I
DEFINITIONS
Unless otherwise defined herein, all defined terms shall have the meaning set forth in the
Master Definitions attached hereto as Exhibit C.
ARTICLE II
DESCRIPTION OF PROPERTY
ESTABLISHMENT OF OWNERSHIP INTERESTS
2.1 Description of Land and Other Property. The University View Condominiums
project initially consists of one hundred fifty-two (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.
2.2 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 three
(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 fitness center, piano room, lounge, 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.
2.3 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:
2.3.1 Units. Each Unit Owner shall own a separate fee simple estate in a Unit;
2.3.2 Residential Lounge. Each Unit Owner owns an undivided Percentage
Ownership Interest (as set forth in Exhibit B) in the Residential Lounge;
2.4 Conveyance of a Unit. Each of the following shall be included in any conveyance
of a Unit:
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2.4.1 Unit. The right to use and occupy such Unit in accordance with this
Residential Declaration, as well as all other applicable Governing Instruments;
2.4.2 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;”
2.4.3 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
2.5 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.
2.6 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 adjoini ng 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
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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.
2.7 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.
2.8 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%).
ARTICLE III
INTERESTS, USE RIGHTS AND RESTRICTIONS
3.1 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.
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3.2 Use Restrictions.
3.2.1 Alterations, Additions and Improvements.
3.2.1.1 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 in this Section 3.2.1.1, 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.
3.2.2 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):
3.2.2.1 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;
3.2.2.2 A copy of the installation instructions from the resilient
underlayment manufacturer, which instructions shall be followed by the installing
contractor;
3.2.2.3 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;
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3.2.2.4 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
3.2.2.5 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.
3.2.3 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.
3.2.4 Units Used for Transient Rental. Units used for transient rentals shall be
subject to any restrictions contained in the Governing Instruments, zoning ordinances and
applicable laws, 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. Based on currently available parking, the current applicable zoning
ordinances and laws allow for a rental period of time of thirty (30) days or more. Once
additional parking is provided or applicable zoning ordinances and laws are modified to
allow for short-term rentals for a period of time less than thirty (30) days, 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 zoning ordinances and 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. 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 restrict rentals to the entire Unit (not
allow any rental by individual bedroom) and 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,
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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.
3.2.5 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.
3.2.6 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.
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3.2.7 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.
3.2.8 Parking. Use of the parking area will be subject to the Condominium
Association Rules and Regulations and the Condominium Parking Plan. 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.
3.3 Additional Parcel Owner’s Rights.
3.3.1 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.
3.3.2 Occupancy of Units by Occupants.
3.3.2.1 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, zoning ordinances and applicable laws, 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.
Based on currently available parking, the current applicable zoning ordinances and
laws allow for a rental period of time of thirty (30) days or more. Once additional
parking is provided or applicable zoning ordinances and laws are modified to allow
for short-term rentals for a period of time less than thirty (30) days, 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 zoning
ordinances and laws for any period of time (including as short as one day),
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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. Moreover, any rental shall be restricted to the entire Unit and may not
allow a rental by individual room.
3.3.2.2 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.
3.3.2.3 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 rentals. The current
applicable zoning ordinances and laws allow for a rental period of time not less
than thirty (30) days. Once applicable zoning ordinances and laws allow for short-
term rentals for a period of time less than thirty (30) days, Parcel Owner shall be
entitled to enter into a rental agreement for a Unit subject to any restrictions
contained in the Governing Instruments and applicable zoning ordinances and 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. As such, the
making of Units 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 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.
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; 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;
(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
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other interest in real estate; and (v) the rental period complies with any applicable
zoning ordinances and laws. 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 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 renters, including legal name(s), permanent address and telephone number(s) of
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).
3.3.2.4 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.
3.3.3 Conveyance of Property to the Residential Association. Parcel Owner shall
have the right to convey any personal property to the Residential Association reasonably
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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.
3.3.4 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:
3.3.4.1 The real property subject to this Option to Withdraw consists of
the Units.
3.3.4.2 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.
3.3.4.3 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 3.3.4.
3.3.4.4 A withdrawal of a Unit pursuant to this Section 3.3.4 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.
3.3.4.5 No provision of this Section 3.3.4 shall be amended without the
prior written consent of Parcel Owner, so long as Parcel Owner owns any Unit.
3.3.4.6 Parcel Owner shall have no right to withdraw any Unit which is
not owned by Parcel Owner or an affiliate of Parcel Owner.
3.3.4.7 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.
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3.3.4.8 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.
3.3.5 Intentionally Omitted.
3.3.6 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:
3.3.6.1 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.
3.3.6.2 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.
3.3.6.3 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.
3.4 Residential Association Easements.
3.4.1 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
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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.
3.4.2 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.
3.5 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.
3.6 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:
3.6.1 In favor of Parcel Owner so that it shall have no legal liability when any
part of the Apartment encroaches upon a Unit;
3.6.2 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
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3.6.3 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.
3.7 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.
3.8 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.
3.9 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.
3.10 Subordination and Partition of Tenancy-in-Common Attributes.
3.10.1 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
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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.
3.10.2 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.
3.11 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
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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.
3.12 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.
3.13 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.
3.14 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.
3.15 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.
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3.16 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.
3.17 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.
3.18 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.
ARTICLE IV
THE RESIDENTIAL ASSOCIATION
4.1 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.
4.2 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.
4.3 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.
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4.4 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.
4.5 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.
ARTICLE V
MANAGEMENT
5.1 Allocation of Maintenance and Repair Obligations.
5.1.1 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.
5.1.2 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).
5.1.3 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:
5.1.3.1 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
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protection system, roofs, elevators, hallways, fire escape stairs, railings and fences,
foundations and slabs, each of which serves more than one Unit);
5.1.3.2 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
5.1.3.3 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 predeces sor 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).
5.2 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:
5.2.1 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:
5.2.1.1 All funds shall initially be deposited in the Residential Association
General Account. Funds deposited in such General Account may be used by the
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Residential Association only for the purposes for which such funds have been
collected.
5.2.1.2 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.
5.2.2 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.
5.2.3 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:
5.2.3.1 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:
(a) 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
(b) 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.
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5.2.3.2 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.
5.2.4 Inspection of Books and Records.
5.2.4.1 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.
5.2.4.2 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.
5.2.4.3 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
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Residential Association. The right of inspection by a member of the Residential
Association Board includes the right to make extracts and copies of documents.
5.2.5 Insurance – Residential Association.
5.2.5.1 The Residential Association shall have the power and duty to
obtain and pay the cost of insurance in accordance with ARTICLE XI.
5.2.5.2 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.
5.2.6 Levy and Collection of Residential Assessments and Other Charges.
5.2.6.1 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.
5.2.6.2 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.
5.2.7 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.
5.2.8 Minutes, Agenda and Policies. The Residential Association shall have the
power and duty to provide each Residential Association Member with a copy of the
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minutes of Residential Association Board meetings in accordance with the Residential
Bylaws.
5.2.9 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.
5.2.10 Statements of Status: Condominiums.
5.2.10.1 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.
5.2.10.2 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.
5.2.10.3 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.
5.2.11 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).
5.2.12 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.
5.2.13 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.
5.2.14 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,
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and to encumber the Residential Condominium Property (excluding the Units) as security
for the repayment of such borrowed money.
5.2.15 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.
5.2.16 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.
5.2.17 Reserves. The Residential Association shall have the power to establish,
maintain and expend reserve funds for replacements relating to the Residential
Condominium Property.
5.2.18 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.
5.2.19 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.
5.2.20 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.
5.3 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.
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5.4 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.
5.5 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.
5.6 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.
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ARTICLE VI
RESIDENTIAL ASSESSMENTS AND PERSONAL CHARGES
6.1 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.
6.2 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.
6.3 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.
6.4 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
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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.
6.5 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.
6.6 Payment of Residential Association Assessment and Taxes. The Residential
Association Assessment and Taxes shall be paid as follows:
6.6.1 Residential Association Assessment. The Residential Association
Assessment shall be paid as follows:
6.6.1.1 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.
6.6.1.2 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.
6.6.1.3 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
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Residential Association Board is authorized to request payment in cashiers’ check,
money order, or certified check.
6.6.1.4 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.
6.6.1.5 The Residential Association’s attorney will notify, in writing,
delinquent unit Owners of the amount of delinquencies, late charges or other
amounts due.
6.6.1.6 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.
6.6.1.7 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.
6.6.1.8 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.
6.6.1.9 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
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Unit for such Fiscal Year in the manner provided in the Purchase Agreement for
such Unit.
6.6.1.10 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.
6.6.2 Taxes. The Taxes shall be paid as follows:
6.6.2.1 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;
6.6.2.2 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
6.6.2.3 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.
6.7 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.
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6.8 Personal Charges.
6.8.1 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.
6.8.2 Personal Charges shall be paid by each Unit Owner to whom such Personal
Charge relates.
6.9 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:
6.9.1 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 sal e 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.
6.9.2 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.
ARTICLE VII
ENFORCEMENT OF RESTRICTIONS
7.1 In General.
7.1.1 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
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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.
7.1.2 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.
7.1.3 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.
7.1.4 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.
7.2 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):
7.2.1 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
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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
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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.
7.3 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.
7.4 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.
ARTICLE VIII
RESIDENTIAL ASSOCIATION AS ATTORNEY-IN-FACT
8.1 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-
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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.
8.2 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.
ARTICLE IX
DAMAGE, DESTRUCTION, OR CONDEMNATION
9.1 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 a ny
deficiencies between the total insurance proceeds and the contract price for such repair (the
“Shortfall”):
9.1.1 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.
9.1.2 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.
9.2 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.
9.3 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
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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.
9.4 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.
9.5 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.
9.6 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.
ARTICLE X
PROTECTION OF MORTGAGEES
10.1 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
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Articles or the Residential Bylaws; and (ii) are in addition to any other provisions of this
Residential Declaration.
10.2 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.
10.3 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.
10.4 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.
10.5 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.
10.6 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).
ARTICLE XI
INSURANCE
11.1 Residential Association. The Residential Association shall have the power and
duty to obtain and pay the cost of:
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11.1.1 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.
11.1.2 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).
11.1.3 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, directo rs, 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.
11.1.4 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.
11.1.5 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).
11.1.6 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
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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.
11.1.7 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.
11.1.8 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.
11.1.9 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.
11.2 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.
11.2.1 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.
11.2.2 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.
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11.2.3 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.
ARTICLE XII
INTENTIONALLY OMITTED
ARTICLE XIII
BINDING ARBITRATION FOR ENFORCEMENT
OF RESIDENTIAL ASSOCIATION GOVERNING INSTRUMENTS
13.1 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.
13.2 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.
13.3 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.
13.4 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
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gives a Bound Party the right to recover any of those costs and expenses from any other Bound
Party.
13.5 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.
13.6 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.
13.7 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.
13.8 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
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such basis, this Arbitration Provision (other than this sentence) shall be null and void with respect
to such Claim.
13.9 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).
ARTICLE XIV
ALLEGED DEFECTS
14.1 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.
14.2 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.
14.3 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”).
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14.4 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.
14.5 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.
14.6 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.
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.1 Amendment. This Residential Declaration may be amended as set forth below:
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15.1.1 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.
15.1.2 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.
15.1.3 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 th e
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.
15.1.4 Notwithstanding anything contained in this Residential Declaration to the
contrary, Parcel Owner reserves the right to unilaterally amend the Condominium Plat at
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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.
15.1.5 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.
15.1.6 Concurrent with or subsequent to completing a withdrawal of a Unit from
the condominium regime created by this Residential Declaration in accordance with
Section 3.3.4 or expansion of the Residential Condominium Property in accordance with
Section 3.3.5, 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.
15.1.7 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.
15.2 Termination.
15.2.1 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
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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.
15.2.2 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.
15.2.3 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.
15.3 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
1819 Firman Drive #145
Richardson, TX 75081
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With a copy to: Parsons Behle & Latimer
Attn: Jon A. Stenquist
350 Memorial Drive, Ste. 300
Idaho Falls, ID 83402
If to the Association: University View Residential Association
1819 Firman Drive #145
Richardson, TX 75081
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.
15.4 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 As sociation
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.
15.5 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 Residen tial 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
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contained herein imposed by law, then such provisions shall be deemed to remain in effect only
for the maximum permissible period permitted by law.
15.6 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.
15.7 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.
15.8 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.
15.9 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.
15.10 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.
15.11 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.
15.12 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
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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.
15.13 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.
15.14 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.
15.15 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.
15.16 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
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4873-4210-3071.v1
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.
15.17 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.
15.18 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.
15.19 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.
15.20 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 m embers,
guests, tenants, invitees, licensees, agents, servants, employees, contractors, subcontractors, or
designees.
15.21 Acknowledgements. Each Unit Owner is hereby advised of the following matters
affecting the Units, the Condominiums and the Unit Owners’ use and enjoyment thereof:
15.21.1 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
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4873-4210-3071.v1
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, al l 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.
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4873-4210-3071.v1
15.21.2 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 Condominiu ms 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.
15.21.3 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.
15.21.4 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.
15.21.5 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.
15.21.6 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.
15.21.7 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.
15.21.8 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.
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4873-4210-3071.v1
15.21.9 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).
15.21.10 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.
15.21.11 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.
15.21.12 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.
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4873-4210-3071.v1
15.21.13 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.
15.21.14 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.
15.21.15 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.
15.21.16 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
15.21.17 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.
15.21.18 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
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4873-4210-3071.v1
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.
15.21.19 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.
15.22 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.
15.23 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.
15.24 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
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4873-4210-3071.v1
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.
15.25 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.
15.26 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]
4873-4210-3071.v1
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)
4873-4210-3071.v1
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 cons ents 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)
B-1
4873-4210-3071.v1
EXHIBIT A
LEGAL DESCRIPTION OF PROJECT PROPERTY
That certain real property located in Madison County, State of Idaho, more particularly
described as follows:
B-2
4873-4210-3071.v1
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**
1101 1430 0.658 0.658%
1102 1430 0.658 0.658%
1103 1430 0.658 0.658%
1104 1430 0.658 0.658%
1105 1430 0.658 0.658%
1201 1430 0.658 0.658%
1202 1430 0.658 0.658%
1203 1430 0.658 0.658%
1204 1430 0.658 0.658%
1205 1430 0.658 0.658%
1206 1430 0.658 0.658%
1207 1430 0.658 0.658%
1208 1430 0.658 0.658%
1209 1430 0.658 0.658%
1210 1430 0.658 0.658%
1211 1430 0.658 0.658%
1301 1430 0.658 0.658%
1302 1430 0.658 0.658%
1303 1430 0.658 0.658%
1304 1430 0.658 0.658%
1305 1430 0.658 0.658%
1306 1430 0.658 0.658%
1307 1430 0.658 0.658%
1308 1430 0.658 0.658%
1309 1430 0.658 0.658%
1310 1430 0.658 0.658%
1311 1430 0.658 0.658%
1401 1430 0.658 0.658%
1402 1430 0.658 0.658%
1403 1430 0.658 0.658%
1404 1430 0.658 0.658%
1405 1430 0.658 0.658%
1406 1430 0.658 0.658%
1407 1430 0.658 0.658%
1408 1430 0.658 0.658%
1409 1430 0.658 0.658%
1410 1430 0.658 0.658%
1411 1430 0.658 0.658%
1506 1430 0.658 0.658%
B-3
4873-4210-3071.v1
Unit Identifying
Number
Approximate Unit
Square Footage* No. of Votes Per Unit Undivided Interest
Per Unit**
1507 1430 0.658 0.658%
1508 1430 0.658 0.658%
1509 1430 0.658 0.658%
1510 1430 0.658 0.658%
1511 1430 0.658 0.658%
2101 1430 0.658 0.658%
2102 1430 0.658 0.658%
2103 1430 0.658 0.658%
2104 1430 0.658 0.658%
2105 1430 0.658 0.658%
2106 1430 0.658 0.658%
2107 1430 0.658 0.658%
2108 1430 0.658 0.658%
2201 1430 0.658 0.658%
2202 1430 0.658 0.658%
2203 1430 0.658 0.658%
2204 1430 0.658 0.658%
2205 1430 0.658 0.658%
2206 1430 0.658 0.658%
2207 1430 0.658 0.658%
2208 1430 0.658 0.658%
2209 1430 0.658 0.658%
2210 1430 0.658 0.658%
2211 1430 0.658 0.658%
2212 1430 0.658 0.658%
2213 1430 0.658 0.658%
2214 1430 0.658 0.658%
2215 1430 0.658 0.658%
2216 1430 0.658 0.658%
2301 1430 0.658 0.658%
2302 1430 0.658 0.658%
2303 1430 0.658 0.658%
2304 1430 0.658 0.658%
2305 1430 0.658 0.658%
2306 1430 0.658 0.658%
2307 1430 0.658 0.658%
2308 1430 0.658 0.658%
2309 1430 0.658 0.658%
2310 1430 0.658 0.658%
2311 1430 0.658 0.658%
2312 1430 0.658 0.658%
2313 1430 0.658 0.658%
2314 1430 0.658 0.658%
B-4
4873-4210-3071.v1
Unit Identifying
Number
Approximate Unit
Square Footage* No. of Votes Per Unit Undivided Interest
Per Unit**
2315 1430 0.658 0.658%
2316 1430 0.658 0.658%
2401 1430 0.658 0.658%
2402 1430 0.658 0.658%
2403 1430 0.658 0.658%
2404 1430 0.658 0.658%
2405 1430 0.658 0.658%
2406 1430 0.658 0.658%
2407 1430 0.658 0.658%
2408 1430 0.658 0.658%
2409 1430 0.658 0.658%
2410 1430 0.658 0.658%
2411 1430 0.658 0.658%
2412 1430 0.658 0.658%
2413 1430 0.658 0.658%
2414 1430 0.658 0.658%
2415 1430 0.658 0.658%
2416 1430 0.658 0.658%
2509 1430 0.658 0.658%
2510 1430 0.658 0.658%
2511 1430 0.658 0.658%
2512 1430 0.658 0.658%
2513 1430 0.658 0.658%
2514 1430 0.658 0.658%
2515 1430 0.658 0.658%
2516 1430 0.658 0.658%
3101 1430 0.658 0.658%
3102 1430 0.658 0.658%
3103 1430 0.658 0.658%
3104 1430 0.658 0.658%
3105 1430 0.658 0.658%
3201 1430 0.658 0.658%
3202 1430 0.658 0.658%
3203 1430 0.658 0.658%
3204 1430 0.658 0.658%
3205 1430 0.658 0.658%
3206 1430 0.658 0.658%
3207 1430 0.658 0.658%
3208 1430 0.658 0.658%
3209 1430 0.658 0.658%
3210 1430 0.658 0.658%
3211 1430 0.658 0.658%
3301 1430 0.658 0.658%
B-5
4873-4210-3071.v1
Unit Identifying
Number
Approximate Unit
Square Footage* No. of Votes Per Unit Undivided Interest
Per Unit**
3302 1430 0.658 0.658%
3303 1430 0.658 0.658%
3304 1430 0.658 0.658%
3305 1430 0.658 0.658%
3306 1430 0.658 0.658%
3307 1430 0.658 0.658%
3308 1430 0.658 0.658%
3309 1430 0.658 0.658%
3310 1430 0.658 0.658%
3311 1430 0.658 0.658%
3401 1430 0.658 0.658%
3402 1430 0.658 0.658%
3403 1430 0.658 0.658%
3404 1430 0.658 0.658%
3405 1430 0.658 0.658%
3406 1430 0.658 0.658%
3407 1430 0.658 0.658%
3408 1430 0.658 0.658%
3409 1430 0.658 0.658%
3410 1430 0.658 0.658%
3411 1430 0.658 0.658%
3506 1430 0.658 0.658%
3507 1430 0.658 0.658%
3508 1430 0.658 0.658%
3509 1430 0.658 0.658%
3510 1430 0.658 0.658%
3511 1430 0.658 0.658%
*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.
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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 Bank of America (or such other bank as shall be selected by the
Parcel Owner, if Bank of America 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).
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“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),
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limited common areas and facilities appurtenant to a Unit, 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
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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
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(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;
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(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
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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 o f 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.
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“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.
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“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 oth er 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;
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(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
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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 Offic e 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.
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“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)
C-13
4873-4210-3071.v1
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.
4861-8510-3879.v1
EXHIBIT D
RESIDENTIAL BYLAWS
OF
UNIVERSITY VIEW CONDOMINIUM ASSOCIATION, INC.
ARTICLE I
General Plan of Ownership
1. Name and Principal Office. The name of the corporation is the University View
Condominium Association, Inc. (the “Association”) and shall be organized under the laws of the
State of Idaho. The principal office shall be 1819 Firman Drive #145, Richardson, TX 75081. The
Association may have such other offices, either within or without the State of Idaho as the Board
may determine, or the affairs of the Association may require.
2. Bylaws Applicability. The provisions of these Bylaws of the University View
Condominium Association, Inc. (“Bylaws”) are applicable to the Project as designated as such in
the Declaration of Covenant Conditions and Restrictions for University View Condominiums,
recorded in the office of the County Recorder, Madison County, Idaho as Instrument No. _____
(the “Declaration”).
3. Personal Application. All present and future Owners in the Project, any other
person that might use the property or facilities owned and/or managed by the Association in any
manner, are subject to the regulations set forth in these Bylaws and the Declaration. The mere
acquisition of any Unit within the Project or the mere act of occupancy of any Unit within the
Project will signify that these Bylaws are accepted, ratified, and will be complied with.
ARTICLE II
Board
1. General Powers. The property, business and affairs of the Association, and all such
acts and things as are not by law or by these Bylaws directed to be exercised and done exclusively
by the Owners, shall be controlled and managed by the Board of Directors (“Board”), except as
otherwise provided by the terms of the Parking Access and Maintenance Agreement and the
Declaration.
2. Special Powers and Duties. Without prejudice to such foregoing general powers
and duties, and such powers and duties as set forth in the Declaration, the Board is vested with,
and responsible for, the following powers and duties:
2.1 To select, appoint and remove all officers, agents, and employees of the
Association, to prescribe such powers and duties for them as may be consistent with law, with the
Articles, the Declaration and these Bylaws; to fix their compensation, if any, and to require from
them security for faithful service when deemed advisable by the Board;
2.2 To conduct, manage and control the affairs and business of the Association,
and to make and enforce such rules and regulations therefor consistent with law, with the Articles,
the Declaration and these Bylaws, as the Board may deem necessary or advisable;
4861-8510-3879.v1
2.3 To change the principal office for the transaction of the business of the
Association from one location to another within the United States, as provided in Article I hereof;
to designate any place within Madison County, State of Idaho for the holding of any annual or
special meeting or meetings of the Association consistent with the provisions of Article IX,
Section 6 hereof; and to adopt and use a corporation seal and to alter the form of such seal from
time to time as the Board in its sole judgment may deem best, provided that such seal shall at all
times comply with the provisions of law;
2.4 To borrow money and to incur indebtedness for the purposes of the
Association, and to cause to be executed and delivered therefor, in the Association’s name,
promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations or other
evidence of debt and securities therefor; subject, however, to the limitations set forth in the Articles
and the Declaration;
2.5 To fix and collect, from time to time, Assessments upon the Members on
behalf of itself, as provided in the Declaration; provided, however, that such Assessments shall be
fixed and levied only to provide for the payment of the expenses of the Association, and of the
taxes and assessments upon real or personal property owned, managed, leased, controlled or
occupied by the Association, or for the payment of expenses for labor rendered or materials or
supplies used and consumed, or equipment and appliances furnished for the maintenance,
improvement or development of such property or for the payment of any and all obligations in
relation thereto, or in performing or causing to be performed any of the purposes of the Association
for the general benefit and welfare of the Association’s Members, in accordance with the
provisions of the Declaration. The Board is hereby authorized to incur any and all such
expenditures for any of the foregoing purposes and to provide, or cause to be provided adequate
reserves pursuant to the Declaration. Such Assessments shall be fixed in accordance with the
provisions of the Declaration. Should any Member fail to pay such Assessments before
delinquency, the Board in its discretion, is authorized to enforce the payment of such delinquent
Assessments as provided in the Declaration;
2.6 To enforce the provisions of the Declaration, the Articles, these Bylaws or
other agreements of the Association;
2.7 To fix, determine and name from time to time, if necessary or advisable, the
public agency, fund, foundation or corporation which is then or there organized or operated for
charitable purposes, to which the assets of this Association may be distributed upon liquidation or
dissolution according to the Articles; and
2.8 To adopt, amend, and repeal by a unanimous vote of the Board, rules and
regulations as to the Association deemed reasonable and necessary.
3. Number. The Board shall consist of three (3) members.
4. Qualifications; Election; Term. The initial three Directors shall be as set forth in
the Articles. Directors shall not receive any salary or other compensation from the Association for
their services as directors; provided, however, that nothing herein contained shall be construed to
4861-8510-3879.v1
preclude any director from serving the Association in some other capacity and receiving
compensation therefor.
5. Resignation. Any director may resign by submitting a written notice to the Board
stating the effective date of that director’s resignation. Acceptance of the resignation shall not be
necessary to make it effective.
6. Vacancies. Any vacancy occurring on the Board whether by removal, resignation,
death or otherwise shall be filled by the Owner of the Unit that selected the director creating the
vacancy. A director elected to fill a vacancy on the Board shall hold office until a successor has
been selected by the owner of the Unit that selected the Director whose departure created the
vacancy.
7. Meetings. The first regular meeting of the newly elected Board shall be held within
thirty (30) days of the appointment of the Board, at such place as shall be fixed and announced by
the directors subsequent to said directors’ appointment, for the purpose of organization, election
of officers, and the transaction of other business. No notice shall be necessary to the newly elected
directors in order legally to constitute such meeting, provided a quorum of the Board shall be
present. Regular meetings of the Board shall be held at such time and place as may be fixed from
time to time by resolution of the Board. Should said meeting fall upon a legal holiday or a Saturday
or Sunday, then that meeting shall be held at the same time on the next day which is not a legal
holiday or a Saturday or Sunday. After the establishment of a time and place for such regular
meeting, no further notice thereof need be given.
There shall be a regular annual meeting of the Board immediately following the annual
meeting of the Members of the Association, and the Board. Special meetings of the Board may be
called by the President, or, if the President is absent or refuses to act, by the vice president (if any),
or upon written request delivered to the Secretary-Treasurer by any two (2) directors. At least
three (3) days’ notice shall be given to each director, personally or by mail, telephone or fax, which
notice shall state the time, place (as hereinabove provided) and the purpose of the meeting. If
served by mail, each such notice shall be sent, postage prepaid, to the address reflected on the
records of the Association, and shall be deemed given, if not actually received earlier, at
5:00 o’clock p.m. on the second day after it is deposited in a regular depository of the United States
mail as provided herein. Whenever any director has been absent from any special meeting of the
Board, an entry in the minutes to the effect that notice has been duly given shall be conclusive and
incontrovertible evidence that due notice of such meeting was given to such director, as required
by law and as provided herein.
8. Notices; Waiver. Three (3) days’ notice of special meetings shall be given to each
director by the Secretary-Treasurer. Such notice may be given orally to each director. Written
waiver of notice signed by a director or attendance at a meeting of the Board by such director shall
constitute a waiver of notice of such meeting, except where attendance is for the expressed purpose
of objecting to the failure to receive such notice or to defects in said notice. If all directors are
present at any meeting of the Board, no notice shall be required, and any business may be
transacted at such meeting. The transactions of any meeting of the Board, however called and
noticed or wherever held, shall be as valid as though had at a meeting duly held after regular call
and notice, if a quorum be present, and if, either before or after the meeting, each of the directors
4861-8510-3879.v1
not present signs such a written waiver of notice, a consent to holding such meeting, or an approval
of the minutes thereof. All such waivers, consents and approvals shall be filed with the records of
the Association or made a part of the minutes of the meeting.
9. Quorum; Vote Required; Adjournment. Except as otherwise expressly provided
herein, at any meeting of the Board, a majority of the qualified directors shall constitute a quorum.
If a quorum is present, the action of a majority of the directors present and voting shall be the act
of the Board. If a quorum is not present, the majority of directors present may adjourn the meeting
from time to time without further notice other than announcement at the meeting.
10. Voting. Each director, when acting in his or her capacity as a director of the Board,
shall have one (1) vote.
11. Action of Directors Without a Meeting. Any action required to be taken or any other
action which may be taken at a meeting of the Board may be taken without a meeting if a consent
in writing setting forth the action so taken shall be signed by all the directors entitled to vote in
respect to the subject matter thereof. Any action so approved shall have the same effect as though
taken at a meeting of the directors.
12. Committees. The Board, by resolution, may from time to time designate such
committees as the Board shall desire, and may establish the purposes and powers of each such
committee created. The resolution designating and establishing a committee shall provide for the
appointment of the persons to serve such committee as well as a chairperson, shall state the purpose
of the committee, and shall provide for reports, termination, and other administration matters as
deemed appropriate by the Board.
ARTICLE III
Officers
1. General. The officers of the Association shall be a President, one or more Vice
Presidents and a Secretary-Treasurer, all of whom shall be elected by the Board to serve at the
pleasure of the Board. The Board may appoint an assistant treasurer and an assistant secretary,
and such other officers in the Board’s judgment as may be necessary. One person may hold two
or more offices, except the same person cannot hold the offices of President and Secretary-
Treasurer concurrently.
2. President. The President shall be the principal executive officer of the Association
and subject to the control of the Board, shall direct, supervise, coordinate and have general control
over the affairs of the Association, and shall have the powers generally attributable to the chief
executive officer of an association. The President shall be a director and shall preside at all
meetings of the Members of the Association. The President shall have all of the general powers
and duties which are usually vested in the office of the president of a nonprofit corporation,
including, but not limited to, the power, to appoint committees from among the Members from
time to time as the President alone may decide are appropriate to assist in the conduct of the affairs
of the Association. The President shall be an ex officio member of all standing committees, and
the President shall have such other powers and duties as may be prescribed by the Board or these
Bylaws and shall be subject and limited by the Articles, the Declaration and these Bylaws.
4861-8510-3879.v1
3. Vice President. A Vice President shall act in place of the President in case of the
President’s death, absence, inability or failure to act and shall perform such other duties and have
such authority as from time to time delegated to such Vice President by the Board or by the
President. The Vice President shall be a director; however, if the Board elects more than one Vice
President only one so elected need be a director. If neither the President nor the Vice President is
able to act, the Board may appoint a member of the Board to do so on an interim basis. The Vice
President shall also perform such other duties as shall from time to time be imposed by the Board,
the Articles, the Declaration, or these Bylaws.
4. Secretary-Treasurer. The Secretary-Treasurer shall record the votes and keep the
minutes of all meetings of the Board and the minutes of all meetings of the Association at the
principal office of the Association and such other place(s) as the Board may order. As directed by
the Board, the Secretary-Treasurer shall be the custodian of and shall hold safe the records and the
seal, if any, of the Association; shall affix the seal to all documents requiring the same; shall, in
general, perform all the duties incident to the office of secretary, and shall see that all notices are
duly given in accordance with the provisions of these Bylaws, including but not limited to notices
of meetings of the Association and of the Board, as required by law and that the books, reports and
other documents and records of the Association are properly kept and filed. The Secretary-
Treasurer shall maintain a book of record Owners within the Project, and any person in possession
of a Unit within the Project that is not an Owner, listing the names and addresses of the Owners,
and any person in possession of a Unit that is not an Owner, as furnished to the Association and
such book shall be changed only at such time as satisfactory evidence of a change in ownership of
a Unit within the Project is presented to the Secretary-Treasurer. The Secretary-Treasurer shall
have charge and custody of and be responsible for the Association’s funds and all sorts of securities
of the Association. The Secretary-Treasurer shall be responsible for the deposit of all monies and
other valuable effects in the name of and to the credit of the Association in such banks and
depositories as shall be designated by the Board and shall disburse the funds of the Association as
may be ordered by the Board in accordance with the Declaration. The Secretary-Treasurer shall
be responsible for keeping, or causing to be kept, full and accurate accounts, books, and records
of the Project, any Common Area, any Association transactions, any tax records and business
transactions of the Association, including but not limited to accounts of all assets, liabilities,
receipts and disbursements, all in books belonging to the Association of transactions and of the
financial condition of the Association; shall upon request submit such reports thereof as the Board
or President may from time to time require; and in general shall perform all of the duties incident
to the office of Secretary-Treasurer and such other duties as may from time to time be assigned to
the Secretary-Treasurer and such other duties as may from time to time be assigned to the
Secretary-Treasurer by the Board or by the President and shall perform such other duties as may
be prescribed by the Articles, the Declaration or these Bylaws. The Board may appoint one or
more Assistant Secretary-Treasurers who may act in the place of the Secretary-Treasurer in case
of the Secretary-Treasurer’s death, absence, inability or failure to act.
5. Special Appointment. The Board may elect such other officers as the affairs of the
Association may require, each of whom shall hold office for such period, have such authority, and
perform such duties as the Board may, from time to time, determine.
6. Removal of Officers. Upon an affirmative vote of a majority of the Board, any
officer may be removed, and a successor elected at any regular meeting of the Board, or any special
4861-8510-3879.v1
meeting of the Board called for such purpose. Any officer may resign at any time by giving written
notice to the Board or to the President or secretary of the Association. Any such resignation shall
take effect at the date of receipt of such notice or at any later time specified therein; and unless
otherwise specified in said notice, acceptance of such resignation by the Board shall not be
necessary to make it effective. A vacancy in any office may be filled by appointment by the Board.
The officer appointed to such vacancy shall serve for the remainder of the term of the officer he or
she replaces.
7. Delegation of Powers. In case of absence of any officer of the Association or for
any other reason that may seem sufficient to the Board, the Board may delegate that officer’s duties
and powers for the time being to any other officer or any director.
ARTICLE IV
Rights, Duties and Obligations of the Association and Members of the Association
1. Responsibilities. The Association shall have the responsibility of administering the
Project, including, without limitation, the Common Area, approving the annual budget,
establishing and collecting all Assessments, if any, reviewing all work upon the common areas or
a Unit in accordance with the Declaration and the Parking Access and Maintenance Agreement.
2. Membership. Each Owner of a Unit shall be a Member of the Association and
consents to such membership by virtue of ownership of a Unit. No person or entity other than an
Owner of a Unit may be a Member of the Association. If title to a Unit is held by more than one
person, the membership related to that Unit shall be shared by all such persons in the same
proportionate interest and by the same type of tenancy in which the title to the Unit is held. All
such persons and entities shall be deemed Members, but the voting rights in the Association
attributable to that Unit may not be split and shall be exercised by one representative selected by
such persons or entities, as they, among themselves, may determine. In the event that such joint
Owners are unable to agree among themselves as to how their vote or votes shall be cast, they shall
lose their right to vote on the matter being put to a vote. When an Owner casts a vote, it will
thereafter be presumed conclusively for all purposes that such Owner was acting with authority
and consent of all joint owners of the Unit from which the vote derived.
3. Transfer of Membership. Transfer of membership in the Association shall occur
upon the transfer of a title to the Unit to which the membership pertains; however, the Association
shall be entitled to maintain the person, persons or entity in whose name or names the membership
is recorded on the books and records of the Association until such time as evidence of the transfer
of title satisfactory to the Association has been submitted to the Secretary-Treasurer. A transfer
of membership shall not release the transferor from liability or obligation accrued and incidental
to such membership prior to such transfer. In the event of dispute as to ownership of a Unit and
to the membership appurtenant thereto, title to the Unit as shown on the public records of the
County of Madison State of Idaho, shall be determinative. Memberships in the Association shall
not be transferred except in connection with the transfer of a Unit; provided, however, the rights
of membership may be assigned as further security for a loan secured by a lien on a Unit.
4861-8510-3879.v1
4. Voting Rights. Voting rights are defined in Article __ of the Articles of
Incorporation of University View Condominium Association, Inc. and Section 4.3 of the
Declaration.
5. Place of Meetings. Meetings of the Association shall be held at the Project or such
other suitable place as close to the Project as practicable in Madison County, Idaho as may be
designated by the Association’s Board.
6. Annual Meetings. The first annual meeting shall be held within one (1) year from
the date of incorporation of the Association, and each subsequent regular annual meeting of the
Members shall be held on the same day of the same month of each year thereafter. If the day for
the annual meeting of the Members is a legal holiday or a Saturday or Sunday, the meeting will be
held at the same hour on the first day following which is not a legal holiday or a Saturday or
Sunday. At each annual meeting there shall be elected by ballot of the Members a Board in
accordance with the requirements of these Bylaws. In the event that an annual meeting is not held,
or the directors are not elected at the annual meeting, the directors may be elected at any special
meeting held for that purpose. The Members may also transact such other business of the
Association as may properly come before them at any such annual meeting. All business which
may be lawfully transacted may be transacted at such meeting without any further or special notice.
7. Special Meetings. Special meetings of the Members may be called at any time by
the Board, by written request of two (2) directors, or upon a petition signed by Members
representing two-thirds (2/3) or more of the total voting power in the Association. The Secretary-
Treasurer shall forthwith give notice of such meeting which shall state the nature of the business
to be undertaken at such time as the Secretary-Treasurer may fix, not less than ten (10) or more
than thirty-five (35) days after the receipt of said request, and if the Secretary-Treasurer shall
neglect or refuse to issue such call, the Board or Members making request may do so. No business
shall be transacted at a special meeting except as stated in the notice, unless by consent of the
Members representing two-thirds (2/3) or more of the total voting power in the Association, either
in person or by proxy.
8. Notice; Waiver. It shall be the duty of the Association’s Secretary-Treasurer to
deliver personally or deposit in the mail, postage prepaid and addressed to the last known address,
as shown on the books of the Association, a notice of each annual or special meeting of the
Association to each Member of record, in writing, stating the date, hour and place of the meeting
and generally describe the nature of the business to be transacted, at least ten (10) but not more
than thirty (30) days prior to such meeting.
In the event that a special meeting is called by the Members as aforesaid, they shall notify
the Secretary-Treasurer in writing of the time, place and purpose of the meeting in sufficient time
to permit the Secretary-Treasurer to give notice to all Members in accordance with these Bylaws.
Written waiver of notice signed by or attendance at a meeting by the Owners or any one of
the co-owners of a membership shall constitute a waiver of notice of such meeting, except where
attendance is for the express purpose of objecting to the failure to receive such notice or to defects
in the notice.
4861-8510-3879.v1
The mailing of a notice, postage prepaid, in the manner provided in this Section 8 shall be
considered notice served, after said notice has been deposited in a regular depository of the United
States mail. If no address has been furnished to the Association’s secretary, notice shall be deemed
to have been given to a Member if posted in a conspicuous place on the Project, or by any other
method set forth in the Declaration.
9. Quorum; Vote Required; Adjournment. Except as otherwise provided in these
Bylaws, the Articles, or the Declaration, the presence of representing two-thirds (2/3) or more of
the total voting power in the Association represented in person or by proxy shall constitute a
quorum at any meeting of the Members. If a quorum is present, the action of a majority of the
total voting power present and voting shall be the act of the Members. The Members present at a
duly called or held meeting at which a quorum is present may continue to do business until
adjournment, notwithstanding the withdrawal of enough Members to leave less than a quorum. If
a quorum is not represented at a meeting, a majority of the membership present in person or by
proxy may adjourn the meeting from time to time without notice other than announcement at the
meeting.
10. Certificates Held. Membership interests held in estates or trusts may be voted by
the administrator, executor, guardian, trustee, conservator or receiver thereof without such
membership or title to the Unit being transferred to said person.
11. Conduct of the Meeting. The meeting will be conducted by the officers in order of
their priority. The order of business at all meetings shall be as follows: (a) roll call to determine
the voting power represented at the meeting; (b) proof of notice of meeting or waiver of notice; (c)
reading of minutes of preceding meeting; (d) reports of officers; (e) reports of committees; (f)
election of directors; (g) unfinished business and (h) new business.
12. Action Without Meeting. Any action, which under the provisions of the Idaho
Nonprofit Corporation Act may be taken at a meeting of the Association, may also be taken without
a meeting if authorized in writing signed by all of the Members who would be entitled to vote at a
meeting for such purpose, and filed with the Association’s Secretary-Treasurer. Any action so
approved shall have the same effect as though taken at a meeting of the Members.
13. Consent of Absentees. The transactions of any meeting of the Association, either
annual or special, however called and noticed, shall be as valid as though transacted at a meeting
duly held after regular call and notice, if a quorum be present either in person or by proxy, and if
either before or after the meeting each of the Members not present in person or by proxy signed a
written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes
thereof. All such waivers, consents or approvals shall be filed with the corporate records or made
part of the minutes of the meeting.
14. Minutes; Presumption of Notice. Minutes or a similar record of the proceedings of
meetings, when signed by the Association’s president or secretary, shall be presumed truthfully to
evidence the matters set forth therein. A recitation in the minutes of any meeting that notice of the
meeting was properly given shall be prima facie evidence that such notice was given.
4861-8510-3879.v1
ARTICLE V
Declaration
The Declaration of Covenants Conditions and Restrictions for University View
Condominiums is hereby incorporated by reference and is made a part of these Bylaws as if set
out in full herein. Except as otherwise defined herein, all terms herein initially capitalized shall
have the same meanings as are ascribed to such terms in the Declaration including, without
limitation, “Assessments”, “Common Area”, “Condominium Documents”, “Declarant”,
“Declaration”, “Improvements”, “Articles”, “Association”, “Bylaws”, “Limited Common Area”,
“Member(s)”, “Owner”, “Project”, and “Unit”.
ARTICLE VI
Contracts, Conveyances, Checks and Miscellaneous
1. Contracts. The Board may authorize any officer of the Association to enter into any
contract or execute any instrument in the name of the Association and such authority may be
general or confined to specific instances; except as otherwise specifically required by the
Declaration and unless so authorized by the Board, no officer, agent or employee shall have the
power or authority to bind the Association by any contract or engagement or to pledge the
Association’s credit or to render the Association liable for any purpose or in any amount.
2. Conveyances and Encumbrances. Association property may be conveyed or
encumbered by authority of the Board by resolution of the Board. Conveyances or encumbrances
shall be executed by instrument by the President or Vice President and by the Secretary-Treasurer
of the Association.
3. Checks. All checks, drafts, notes and orders for the payment of money issued in the
name of or payable to the Association shall be signed by such persons as the Board may authorize
by resolution.
4. Fiscal Year. The fiscal year or business year of the Association shall begin on the
first day of January and end on the last day of December following of every year except that the
first fiscal year shall begin on the date of incorporation.
5. Records. The Association, in accordance with the terms of the Declaration, shall
maintain accurate and correct condominium documents, financial statements, books, records and
accounts of the Association’s business and properties, and they shall be kept at such place as is
from time to time fixed and designated by the Board which shall be open to inspection by the
Members at all reasonable times during office hours. The books, records, financial statements and
papers of the Association shall at all times, during reasonable business hours, be subject to
inspection by any Member. The Declaration, Articles, Bylaws, and all other Condominium
Documents shall be available for inspection by any Member at the principal office of the
Association, where copies may be purchased at reasonable cost.
6. Membership Book. The Association shall keep and maintain in the Association’s
office for the transaction of business a book containing the name and address of each Member.
Termination or transfer of ownership of any Unit by a Member shall be recorded in the books
4861-8510-3879.v1
together with the date on which such ownership was transferred, and the new Member shall be
incorporated into the book in accordance with the provisions of the Declaration.
ARTICLE VII
Amendments
These Bylaws may be amended, altered or repealed from time to time by unanimous vote
of the Board at any annual or special meeting provided that the notice of such meeting states that
such amendment, alteration or repeal is to be considered.
Any proposal to amend or repeal these Bylaws or to adopt new Bylaws shall be stated in
the notice of the meeting of the Board or in the waiver of notice thereof, as the case may be, unless
all of the directors are present at such meeting.
ARTICLE VIII
Conflicting Provisions
In case any of these Bylaws conflict with any provisions of the laws of the State of Idaho,
such conflicting Bylaws shall be null and void upon final court determination to such effect, but
all other Bylaws shall remain in full force and effect. In case of any conflict between the Articles
and these Bylaws the Articles control; and in the case of any conflict between the Declaration and
these Bylaws, the Declaration shall control.
ARTICLE IX
Indemnification and Insurance
1. Certain Definitions. For the purposes of this Article 9, “agent” means any person
who is or was a director, officer, employee or other agent of the Association, or is or was serving
at the request of the Association as a director, officer, employee or agent of another corporation,
or was a director, officer, employee or agent of a corporation which was a predecessor corporation
of the Association; “proceeding” means any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or investigative; and “expenses” includes,
without limitation, attorneys’ fees and costs and any expenses of establishing a right to
indemnification under Article 9 subsection 3.3.
2. Indemnification. This Association shall indemnify any person who was or is a party
or is threatened to be made a party to any proceeding (other than an action by or in the right of this
Association to procure a judgment in its favor) by reasons of the fact that such person is or was an
agent of this Association, against expenses (including, without limitation, attorneys’ fees),
judgments, fines, settlements and other amounts actually and reasonably incurred in connection
with such proceeding if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Association and, in the case of a criminal
proceeding, had no reasonable cause to believe the conduct of such person was unlawful. The
termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent shall not, of itself, create a presumption that the person did not act in
good faith and in a manner which the persons reasonably believed to be in or not opposed to the
best interests of the Association or with respect to any criminal proceeding that the person had
reasonable cause to believe that the person’s conduct was unlawful. However, no indemnification
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shall be made in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Association in the performance of such person’s duty to the
Association, unless and only to the extent that the court in which such proceeding is or was pending
shall determine upon application that, in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for the expenses which such court shall deem proper.
3. Determination of Standard of Conduct. Any indemnification under this Article 9
shall be made by the Association only if authorized in the specific case, upon a determination that
indemnification of the agent is proper in the circumstances because the agent has met the
applicable standard of conduct set forth in Article 9 Section 2, as determined by:
3.1 A majority vote of a quorum of directors who are not parties to such
proceeding;
3.2 Approval or ratification by the affirmative vote of a majority of the total
voting power of the Association at a duly held meeting of the Association at which a quorum is
present;
3.3 The court in which such proceeding is or was pending, upon application
made by the Association or the agent or the attorney or other persons rendering services in
connection with the defense, whether or not such application by the agent, attorney or other person
is opposed by the Association; or
3.4 Independent legal counsel in written opinion, engaged at the direction of a
quorum of disinterested directors.
4. Advancing Expenses. Expenses incurred in defending any proceeding may be
advanced by the Association prior to the final disposition of such proceeding upon receipt of an
undertaking by or on behalf of the agent to repay such amount if it shall be determined ultimately
that the agent is not entitled to be indemnified as authorized in this Article 9.
5. Extent and Limitations of Indemnifications. No indemnification or advance shall
be made under this Article 9, except as provided in Article 9, subsection 3.3, in any circumstance
where it appears:
5.1 That it would be inconsistent with a provision of the Articles, these Bylaws,
a resolution of the Board or Members or an agreement in effect at the time of the accrual of the
alleged cause of action asserted in the proceeding in which the expenses were incurred or other
amounts were paid, which prohibits or otherwise limits indemnification; or
5.2 That it would be inconsistent with any condition expressly imposed by a
court in approving a settlement.
This Article 9 shall create a right of indemnification for each agent referred to in this
Article 9, whether or not the proceeding to which the indemnification relates arose in whole or in
part prior to adoption of this Article 9; and in the event of the death of such agent, whether before
or after initiation of such proceeding, such right shall extend to such agent’s legal representatives.
In addition, to the maximum extent permitted by applicable law, the right of indemnification
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hereby given shall not be exclusive of or otherwise affect any other rights such agent may have to
indemnification, whether by law or under any contract, insurance policy or otherwise.
6. Liability Insurance. The Association may purchase and maintain insurance on
behalf of any agent of the Association against any liability asserted against or incurred by the agent
in such capacity or arising out of the agent’s status as such, whether or not the Association would
have the power to indemnify the agent against such liability under the provisions of this Article 9.
APPROVED AND ADOPTED this _______ day of ________________________, 2022,
by the undersigned members of the initial Board of the Association.