HomeMy WebLinkAboutCC&Rs 12.20.22 - 22-00314 - Madison Square - 354 W Main - Condo Plat (3)DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR MADISON SQUARE
Table of Contents
ARTICLE 1- RECITALS 4
ARTICLE 2 - DECLARATION 4
ARTICLE 3 - DEFINITIONS 5
ARTICLE 4 - GENERAL AND SPECIFIC RESTRICTIONS AND REQUIREMENTS 7
4.1 Use of Unit.7
4.2 Improvements and Alterations.7
4.3 Trash Containers and Collection.10
4.4 Machinery and Equipment.11
4.5 Diseases and Insects.11
4.6 Parking Spaces.11
4.7 Utility Service and Antennae.11
4.8 Insurance Rates.11
4.9 No Further Subdivision.12
4.10 Signs.12
4.11 Nuisances.12
4.12 No Hazardous Activities.12
4.13 Unsightly Articles.13
4.14 Boats, Campers, and Other Vehicles.13
4.15 No Vehicle Construction,13
4.16 Towing of Vehicles.13
4.17 Animals/Pets.13
4.18 Exemption of Grantor.14
4.19 Lawful Use.14
4.20 Leases.14
4.21 Variances.15
4.22 Insurance Obtained By Owner.15
ARTICLE 5 - MADISON SQUARE HOMEOWNERS ASSOCIATION, INC.16
5.1 Organization of Madison Square Homeowners Association, Inc.16
5.2 Membership.16
5.3 Voting.16
5.4 Board of Directors and Officers.17
5.5 Power and Duties of the Association.17
5.6 Personal Liability.21
5.7 Budgets and Financial Statements.21
5.8 Meetings of Association.22
ARTICLE 6 - RIGHTS TO COMMON AREAS 22
6.1 Use of Common Area.22
6.2 Designation of Common Area.22
6.3 Delegation of Right to Use.22
6.4 Damages.23
ARTICLE 7 - ASSESSMENTS 23
7.1 Covenant to Pay Assessments.23
7.2 Regular Assessments.23
7.3 Special Assessments.24
7.4 Limited Assessments.25
7.5 Uniform Rate of Assessment.25
7.6 Assessment Period.25
7.7 Notice and Assessment Due Date.25
7.8 Estoppel Certificate.25
7.9 Special Notice and Quorum Requirements.26
8.1 Right to Enforce.26
8.2 Assessment Liens.26
8.3 Method of Foreclosure.27
8.4 Required Notice.27
8.5 Subordination to Certain Trust Deeds.27
8.6 Rights of Mortgagees.28
ARTICLE 9 - INSPECTION OF ASSOCIATION' S BOOKS AND RECORDS 28
9.1 Member's Right of Inspection.28
9.2 Rules Regarding Inspection of Books and Records.28
9.3 Director's Rights of Inspection.28
ARTICLE 10 - EASEMENTS 28
10.1 Easements of Encroachment.28
10.2 Easements of Access.29
10.3 Utility Easements.29
10.4 Rights and Duties Concerning Utility Easements.29
10.5 Disputes as to Sharing of Costs.30
ARTICLE 11 - LIMITATION OF LIABILITY 30
11.1 Limitation on Grantor's Liability.30
11.2 Non Liability of Officials.30
ARTICLE 12 - MISCELLANEOUS 31
12.1 Term.31
12.2 Amendment.31
12.3 Notices.32
12.4 Enforcement and Non-Waiver.32
12.5 Binding Effect.34
12.6 Survival of Liability.34
12.7 Joint and Several Liability.34
12.8 Compliance by Occupants.34
12.9 Attorneys' Fees.35
12.10 Number of Days.35
12.11 Construction Defect Dispute Notification and Resolution Procedure.35
12.12 Required Consent of Owners for Legal Action.38
12.13 Effect of Declaration.39
12.14 No Representations or Warranties.39
12.15 Interpretation.39
12.16 Successors and Assigns.39
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR MADISON SQUARE
(this "Declaration") is made effective as of November 22, 2022, by Madison Square LLC, an
Idaho limited liability company ("Grantor" and "Class B Member").
ARTICLE 1- RECITALS
The property subject to this Declaration is the Madison Square Platt described on Exhibit
A attached hereto and made a part hereof by this reference (the "Property"). The purpose of this
Declaration is to set forth the basic restrictions, covenants, limitations, easements, conditions,
and equitable servitudes (collectively "Restrictions'') that apply to the Property. The Restrictions
are designed to preserve the Property's value, desirability, and attractiveness, to ensure a well
integrated high-quality development, and to guarantee adequate maintenance of the Common
Area, and the Improvements located thereon, in a cost effective and administratively efficient
manner.
ARTICLE 2 - DECLARATION
Grantor declares that the Property shall be held, sold, conveyed, encumbered,
hypothecated, leased, used, occupied, and improved subject to the following terms, covenants,
conditions, easements, and restrictions, all of which are declared and agreed to be in
furtherance of a general plan for the protection, maintenance, subdivision, improvement, and
sale of the Property, and to enhance the value, desirability, and attractiveness of the Property.
The terms, covenants, conditions, easements, and restrictions set forth herein:
A.shall run with the land constituting the Property, and with each estate therein, and shall
be binding upon all persons having or acquiring any right, title, or interest the Property or
any Unit, parcel, or portion thereof;
B.shall inure to the benefit of every Unit, parcel, or portion of the Property and any interest
therein; and,
C.shall inure to the benefit of, and be binding upon, Grantor, Grantor's successors in
interest, and each grantee or Owner, and such grantee's or Owner's respective
successors in interest, and may be enforced by Grantor, by any Owner, or such Owner's
successors in interest, or by the Association as hereinafter described.
Notwithstanding the foregoing, no provision of this Declaration shall be construed as to
prevent or limit Grantor's right to complete development of the Property and to construct
improvements thereon, nor Grantor's right to maintain model townhomes, construction, sales, or
leasing offices, or similar facilities (temporary or otherwise) on any portion of the Property,
including the Common Area or any public right-of-way, nor Grantor's right to post signs
incidental to construction, sales, or leasing, nor Grantor's right to modify plans for the Property,
all in accordance with any necessary approvals of the City.
ARTICLE 3 - DEFINITIONS
"Articles." Articles shall mean the Articles of Incorporation of the Association. "Assessments."
Assessments shall mean those payments required of Owners or other
Association Members, including Regular Assessments, Special Assessments, and Limited
Assessments of the Association as further defined in this Declaration.
"Association." Association shall mean the Idaho nonprofit corporation, and its successors and
assigns, established or to be established by Grantor to exercise the powers and to carry out the
duties set forth in this Declaration or any other Governance Documents. Grantor shall have the
power, in its discretion, to name the Association the "Madison Square Homeowners Association,
Inc.," or any similar name which fairly reflects its purpose.
"Association Rules."Association Rules shall mean those rules and regulations promulgated by
the Association governing conduct upon and use of the Common Area and other property under
the jurisdiction or control of the Association, the imposition of fines and forfeitures for violation of
Association rules and regulations, and procedural matters for use in the conduct of business of
the Association.
"Board" or "Board of Directors." Board or Board of Directors shall mean the Board of
Directors of the Association.
"Buildings." Buildings shall mean the buildings constructed,or to be constructed, on the
Property in which Units are, or will be, constructed, as shown on any Plat. The Buildings are
individually referred to herein as a "Building."
"Bylaws." Bylaws shall mean the Bylaws of the Association.
“Commercial Lot.”Commercial Lot shall mean that Lot (Lot 2) designated for commercial use
to satisfy the Cities commercial requirement in the Mixed Use Zone.
“Commercial Unit.”Commercial Unit shall mean a Unit in or on a Commercial Lot.
"Common Area." Common Area shall mean all real property in which the Association holds an
interest or which is held or maintained, permanently or temporarily, for the common use,
enjoyment, and benefit of the entire Madison Square Subdivision and each Owner therein, and
shall include, without limitation, all such parcels that are designated as private streets or drives,
common open spaces, and common landscaped areas. The Common Area may be established
from time to time by Grantor on any portion of the Property by describing it on a Plat, by
granting or reserving it in a deed or other instrument, or by designating it pursuant to this
Declaration or any Supplemental Declaration. The Common Area may include easement and/or
license rights.
"Declaration."Declaration shall mean this Declaration as it may be amended from time to time.
"Governance Documents."Governance Documents shall mean this Declaration, any
Supplemental Declaration, the Articles, and Bylaws, as amended from time to time.
"Grantor." Grantor shall mean Madison Square LLC,an Idaho limited liability company, and its
successors in interest, or any person or entity to whom the rights under this Declaration are
expressly transferred by Granter or its successor.
"Improvement." Improvement shall mean any structure,facility, or system, or other
improvement or object, whether permanent or temporary, which is erected, constructed, or
placed upon, under, or in, any portion of the Property, including but not limited to buildings,
fences, streets, drives, driveways, sidewalks, curbs, landscaping, signs, lights, mail boxes,
electrical lines, pipes, water lines, sewer lines, and fixtures of any kind whatsoever.
"Limited Assessment." Limited Assessment shall mean a charge against a particular Owner
and such Owner's Unit, directly attributable to the Owner, equal to the cost incurred by the
Association for corrective action or maintenance, repair, replacement and operation activities
performed pursuant to the provisions of this Declaration or any Supplemental Declaration,
including, without limitation, damage to or maintenance, repair, replacement and operation
activities performed for any Common Area or the failure of an Owner to keep the Owner's Unit in
proper repair, including interest thereon as provided in this Declaration or a Supplemental
Declaration or for any goods or services provided by the Association benefiting less than all
Owners.
"Madison Square." Madison Square shall mean the Property.
"Member." Member shall mean each Person holding a membership in the Association. Where
specific reference or the context so indicates, it also shall mean the Persons holding a
membership.
"Occupant." Occupant shall mean a Person, other than an Owner, in possession of or present
at a Unit at the request or with the consent of the Owner or Occupant of such Unit, including
without limitation family members, lessees, sublessees, tenants, subtenants, guests, invitees,
licensees, contractors, subcontractors, agents and employees of the Owner or Occupant.
"Owner." Owner shall mean the Person or Persons, including Grantor, holding fee simple
interest of record to a Unit within the Property, and sellers under executory contracts of sale, but
excluding those having such interest merely as security for the performance of an obligation.
"Party Wall." Party Wall shall mean a demising wall located between two (2) Units.
The boundary of a Party Wall shall be the center of the Party Wall between the two (2) Units.
"Perimeter Building Walls." Perimeter Building Walls shall mean the exterior perimeter walls of
a Building, including all windows and doors, but excluding any fixtures, locking devices, lines,
pipes, wires, ducts or conduits within the wall which serve only one Unit. Perimeter Building
Walls are referred to herein individually as a "Perimeter Building Wall."
"Person." Person shall mean any individual, partnership,corporation, or other legal entity.
"Plat." Plat shall mean any subdivision plat in effect covering all or any portion of the Property
as recorded at the office of the County Recorder, Madison County, Idaho, as the same may be
amended by duly recorded amendments thereof.
"Property." Property shall mean the real property described in Exhibit A, including each Unit,
parcel, and portion thereof and interest therein, which are brought within the jurisdiction hereof
by this Declaration or otherwise. The Property also may include, at Grantor's sole discretion,
such additional property in addition to that described in Exhibit A as may be annexed by means
of Supplemental Declaration as provided herein.
"Regular Assessment." Regular Assessment shall mean the portion of the cost of maintaining,
improving, repairing, managing, and operating the Common Area and all Improvements located
thereon, and the other costs of the Association which is to be levied against the Unit of and paid
by each Owner to the Association, pursuant to the terms of this Declaration or a Supplemental
Declaration.
"Special Assessment." Special Assessment shall mean the portion of the costs of the capital
improvements or replacements, equipment purchases or replacements, or shortages in Regular
Assessments which are authorized and to be paid by each Owner to the Association, pursuant
to the provisions of this Declaration or a Supplemental Declaration.
"Supplemental Declaration." Supplement Declaration shall mean any Supplemental
Declaration including additional covenants, conditions, and restrictions that might be adopted
with respect to all or any portion of the Property.
"Units." Units shall mean the townhomes, apartments,or commercial spaces, constructed, or to
be constructed, in the Buildings as shown or specified in any Plat. Units are referred to herein
individually as a "Unit." Some Units may be associated with the real property upon which it is
situated as specified or shown on any Plat, while other Units may be part of a multiplex
associated with the Platt
ARTICLE 4 - GENERAL AND SPECIFIC RESTRICTIONS AND REQUIREMENTS
4.1 Use of Unit.
Each Unit shall be used, improved and occupied, with the liabilities set forth herein, by the
Owner or Occupant thereof exclusively for residential purposes and uses that conform to this
Declaration, all applicable zoning ordinances and requirements, and other applicable laws and
regulations except that:
4.1.1 Commercial Units are exempt from the residential requirement.
.
4.2 Improvements and Alterations .
4.2.1 Any Owner may make nonstructural additions,alterations and improvements within
the Owner's Unit without the prior written approval of the Board, but such Owner shall be
responsible for any damage to other Units, the Buildings, or the Common Area which results
from any such alterations, additions or improvements. No owner shall make any additions,
alterations or improvements to the Perimeter Building Walls or any Party Wall without the prior
written consent of the Board. No Owner shall make or permit any structural additions, alterations
or improvements within a Unit, unless prior to the commencement of each addition, alteration or
improvement, the Owner receives the prior written approval of the Board and an architect or
engineer, licensed in Idaho, certifies that such addition, alteration or improvement will not impair
the structural integrity or the mechanical systems of the Building in which the Unit is situated or
lessen the support of any portion of the Unit or such Building.
4.2.2 Notwithstanding Subsection 4.2.1, no addition,alteration or improvement within a
Unit, whether structural or not, allocated to the exclusive use of a Unit, which would be visible
from the exterior of a Unit, including but not limited to a change to the exterior color scheme,
shall be made without the prior written approval of the Board, which approval shall only be
granted if the Board affirmatively finds that the proposed addition, alteration or improvement is
aesthetically pleasing and in harmony with the surrounding Improvements. No Owner shall
make any addition, alteration or improvement to the Common Area without the prior written
approval of the Board.
4.2.3 No Owner or Occupant shall overload the electric wiring in a Building or Unit, or
operate machines, appliances, accessories or equipment in such manner as to cause, in the
judgment of the Board, an unreasonable disturbance to others or connect any machines,
appliances, accessories or equipment to the heating or plumbing system, without the prior
consent of the Board, acting in accord with the direction of the Board.
4.2.4 The Board may condition the approval of any proposed additions, alterations or
improvements to a Unit or the Common Area in any manner, including, without limitation: (a)
approval of the contractor to perform the work; (b) restricting the time during which such work
may be performed; (c) requiring the placement of a security deposit in an amount determined by
the Board in an account controlled by the Association; (d) requiring the provision to the Board of
plans and specifications prepared and sealed by a professional engineer duly licensed by the
State of Idaho; and (e) requiring that the Owner requesting the change obtain, prior to
commencing any work, and maintain until completion of such work, comprehensive general
liability insurance in such amounts as may be required by the Board. The Owner shall be
obligated to designate Grantor, the Association, the members of the Board and any other
Person designated by the Board of Directors as additional insureds under the policies. The
Owner shall be responsible for all costs incurred by the Association or the Board of Directors in
connection with the Board's review of the Owner's proposed changes to such Owner's Unit,
including, without limitation, all costs of architects, engineers and other professionals which may
be retained by the Board to assist in its review. Any such costs not timely paid by the Owner
shall be deemed a Limited Assessment which may be enforced and collected in the manner
provided in this Declaration.
4.2.5 The proposed additions, alterations and improvements by any Owner shall be
made in compliance with all laws, rules, ordinances and regulations of all governmental
authorities having jurisdiction, may only be made once all required permits have been obtained
and must be in compliance with any conditions imposed by the Association or Board with
respect to design, structural integrity, sound attenuation, water-proofing, construction details,
lien protection or otherwise. An Owner making or causing to be made such additions, alterations
or improvements agrees, and shall be deemed to have agreed, for such Owner, and such
Owner's heirs, personal representatives, successors and assigns, as appropriate, to defend,
indemnify and hold harmless the Association, Granter and all other Owners and Occupants for,
from and against any and all liability, loss or damage resulting from such additions, alterations or
improvements, and shall be solely responsible for the maintenance, repair and insurance of
such additions, alterations and improvements from and after their date of installation or
construction as may be required by the Association or Board.
4.2.6 The Association shall have the right to stop any work that is not in compliance with
the terms contained in this Section 4.2 or any rules of the Association governing additions,
alterations or improvements to the Units or the Common Area. The Association's rights of
review and approval of plans and other submissions under this Declaration are intended solely
for the benefit of the Association. Neither Grantor, the Association nor any of their respective
officers, managers, directors employees, agents, contractors, consultants or attorneys shall be
liable to any Owner or any other Person by reason of mistake in judgment, failure to point out or
correct deficiencies in any plans or other submissions, negligence, or any other misfeasance,
malfeasance or nonfeasance arising out of or in connection with the approval or disapproval of
any plans or submissions. Without limiting the generality of the foregoing, the Association shall
not be responsible for reviewing, nor shall its review of any plans be deemed approval of, any
plans from the standpoint of structural safety, soundness, workmanship, materials, usefulness,
conformity with building or other codes or industry standards, or compliance with governmental
requirements. Further, each Owner agrees to indemnify and hold Grantor, the Association and
their respective directors, officers, managers, agents and employees harmless from and against
any and all costs, claims (whether rightfully or wrongfully asserted), damages, expenses or
liabilities whatsoever (including, without limitation, reasonable attorneys' fees and court costs at
all trial and appellate levels), arising out of any review, approval or disapproval by the Board of
plans submitted by the Owner or any Occupant.
4.2.7 The approval by the Board of Directors of any construction, installation, addition,
alteration, repair, change or other work pursuant to this Section shall not be deemed a waiver of
the Board's right to withhold approval of any similar construction, installation, addition, alteration,
repair, change or other work subsequently submitted for approval.
4.2.8 Upon receipt of approval from the Board of Directors for any construction,
installation, addition, alteration, repair, change or other work, the Owner who had requested
such approval shall proceed to perform, construct or make the addition, alteration, repair,
change or other work approved by the Board as soon as practicable and shall diligently pursue
such work so that it is completed as soon as reasonably practicable and within such time as
may be prescribed by the Board.
4.2.9 Any change, deletion or addition to the plans and specifications approved by the
Board of Directors must be approved in writing by the Board.
4.2.10 The Board of Directors shall have the right to charge a fee for reviewing requests
for approval of any construction, installation, alteration, addition, repair, change or other work
pursuant to this Section 4.2, which fee shall be payable at the time the application for approval
is submitted to the Board.
4.2.11 All Improvements constructed on, within or in connection with any Building or Unit
shall be of new construction.
4.2.12 The approval by the Board of Directors of any construction, installation, addition,
alteration, repair, change or other work pursuant to this Section 4.2 shall not be deemed a
warranty or representation by the Board as to the quality of such construction, installation,
addition, alteration, repair, change or other work or that such construction, installation, addition,
alteration, repair, change or other work conforms to any applicable building codes or other
federal, state or local law, statute, ordinance, rule or regulation.
4.2.13 The provisions of this section do not apply to, and approval of the Board of
Directors shall not be required for, the construction, erection, installation, addition, alteration,
repair, change or replacement of any Improvements made by, or on behalf of, the Grantor.
4.2.14 The approval required of the Board of Directors pursuant to this Section 4.2 shall
be in addition to, and not in lieu of, any approvals or permits which may be required under any
federal, state or local law, statute, ordinance, rule or regulation.
4.2.15 Any act or conduct of an Occupant of a Unit under this Section 4.2 shall be
deemed to be the act or conduct of the Owner of such Unit.
4.3 Trash Containers and Collection.
No garbage or trash shall be placed or kept on the Unit except in covered containers of a type,
size and style, which are approved by the Board of Directors. The Board shall have the right to
subscribe to a trash service for the use and benefit of the Association and all Owners, and to
adopt and promulgate rules and regulations regarding garbage, trash, trash containers and
collection. The Board shall have the right to require all Owners to place trash and garbage in
containers located in areas designated by the Board. No incinerators shall be kept or
maintained on or in any Unit. Except as provided in this Section 4.3, Owners shall store their
trash and their trash containers inside their Units.
4.4 Machinery and Equipment.
No machinery or equipment of any kind shall be placed, operated or maintained upon or in any
Unit except such machinery or equipment as is usual and customary in connection with the use,
maintenance or construction of buildings, improvements or structures which are within the uses
permitted by this Declaration, and except that which Grantor or the Association may require for
the construction, operation or maintenance of the Units, the Buildings or the Common Area.
4.5 Diseases and Insects.
No Owner shall permit any thing or condition to exist upon or in any Unit which could induce,
breed or harbor infectious plant diseases or noxious insects. Each Owner shall perform such
pest control activities as may be necessary to prevent insects, rodents and other pests from
being present in or upon the Owner's Unit.
4.6 Parking Spaces.
Each Unit shall be assigned one (1) covered parking space and one (1) other parking space.
Only the Owner or Occupants of a Unit may use the parking spaces assigned to the Unit. The
Board of Directors may establish such other reasonable rules and regulations regarding parking
as deemed appropriate by the Board of Directors. Commercial units shall have no designated
parking spaces.
4.7 Utility Service and Antennae .
4.7.1 Except for lines, wires and devices existing on the Building or the Unit as of the
date of this Declaration or to be constructed by Grantor and maintenance and replacement of
the same, no lines, wires, or other devices for the communication or transmission of electric
current or power, including telephone, television and radio signals, shall be erected, placed or
maintained anywhere in or upon any Unit unless they are installed and maintained underground
or concealed in, under, or on Buildings or other structures permitted under this Declaration. No
provision hereof shall be deemed to forbid the erection of temporary power or telephone
structure incident to the construction of Buildings or structures permitted under this Declaration.
4.7.2 No antenna, satellite television dish or other device for the transmission or
reception of television or radio signals or any other form of electromagnetic radiation shall be
erected, used or maintained outdoors on any portion of any Unit whether attached to the
Building or otherwise, unless approved in writing by the Board of Directors, unless applicable
law prohibits the Board from requiring such prior approval. Even if applicable law prohibits the
Board from requiring prior approval of certain types of antennas, satellite dishes or other
devices, any such antennas, satellite dishes or other devices must be installed or constructed in
accordance with such rules and regulations as the Board may adopt.
4.8 Insurance Rates.
Nothing shall be done or kept on or in any Unit which will increase the rate of insurance on any
other portion of the Property without the approval of the Owner of such other portion, nor shall
anything be done or kept on the Property or on or in any Unit which would result in the
cancellation of insurance on any property owned or managed by the Association or which would
be in violation of any law.
4.9 No Further Subdivision.
No Unit may be further subdivided, nor may any easement or other interest therein be
subdivided.
4.10 Signs.
No sign of any kind shall be displayed for public view without the approval of the Association,
and the City if so required, except:
4.10.1 such signs as may be used by Grantor in connection with the development of the
Property and sale of Units;
4.10.2 temporary signs naming the contractors, the architect, and the lending institution
for particular construction operation;
4.10.3 such signs identifying Madison Square, or informational signs, of customary and
reasonable dimensions may be displayed on or from the Common Area; and one (1) sign of
customary and reasonable dimensions not to exceed three (3) feet by two (2) feet may be
displayed by an Owner other than Grantor on or from a Unit advertising the residence for sale or
lease.
4.10.4 All signage, including signage for the exceptions listed in 4.10.1 - 4.10.4, must be
done in accordance with the Subdivision signage format. Without limiting the foregoing, no sign
shall be placed in the Common Area without the written approval of the Association.
4.10.5 The Commercial Lot shall be permitted to have any and all signs in accordance
with the City of Rexburg sign ordinance.
4.11 Nuisances.
No rubbish or debris of any kind shall be placed or permitted to accumulate anywhere upon the
Property, including the Common Area or vacant Units, and no odor shall be permitted to arise
therefrom so as to render the Property or any portion thereof unsanitary, unsightly, offensive, or
detrimental to the Property or to its occupants, or to any other property in the vicinity thereof or
to its occupants. No noise or other nuisance, as described in the Rexburg City Code, as
amended from time to time, shall be permitted to exist or operate upon any portion of the
Property so as to be offensive or detrimental to the Property or to its occupants or to other
property in the vicinity or to its occupants. Without limiting the generality of any of the foregoing
provisions, no exterior speakers, horns, whistles, bells, or other sound devices (other than
security devices used exclusively for security purposes which have been approved by the
Association), flashing lights, or search lights, shall be located, used, or placed on the Property
without the prior written approval of the Association.
4.12 No Hazardous Activities .
No activities shall be conducted on the Property or any improvements constructed on the
Property which are or might be unsafe or hazardous to any person or property.
4.13 Unsightly Articles .
No unsightly articles shall be permitted to remain on any Unit so as to be visible from any other
portion of the Property. No clothing or fabrics shall be hung, dried, or aired in such a way as to
be visible to other property, and no equipment, treat pumps, compressors, containers, lumber,
firewood, grass, shrub or tree clippings, plant waste, metals, bulk material, scrap, refuse, or
trash shall be kept, stored or allowed to accumulate outside any Unit or on the Common Area.
No vacant Units shall be used for the storage of building materials.
4.14 Boats, Campers, and Other Vehicles.
No boats, trailers, campers, all-terrain vehicles, motorcycles, recreational vehicles, bicycles, or
similar equipment shall be placed or kept upon any portion of the Property by any Owner,
Occupant or other Person.
4.15 No Vehicle Construction,
Service or Repair. No automobile, van, truck, motorcycle, motorbike or other motor vehicle of
any kind (herein collectively referred to as a "motor vehicle") shall be constructed,
reconstructed, serviced or repaired within any Unit or on or within an assigned parking space or
the Common Area, and no inoperable vehicle may be stored or parked on or within an assigned
parking space or the Common Area. No vehicle may be parked overnight in any parking space
or elsewhere on the Common Area, except by an Owner or other Occupant on assigned parking
spaces or as permitted by Association Rules. No Owner or Occupant of a Unit may park any
automobile, motorcycle, motorbike or other motor vehicle upon any part of the Common Area
except in assigned or open parking spaces. If a parking space is assigned to a Unit, then no
other Owner or Occupant may park any automobile, motorcycle, motorbike or any other motor
vehicle in that parking space, without the consent of the Owner that owns the Unit assigned
such parking space. Occupants not assigned parking spaces may park an operable automobile,
motorcycle, motor bike or other passenger motor vehicle in open parking spaces not assigned
to any Unit that may exist from time to time on the Common Area. In addition to the provisions
set forth in this Declaration, the Board of Directors may establish such other reasonable rules
and regulations regarding these matters as deemed appropriate by the Board.
4.16 Towing of Vehicles.
The Board of Directors shall have the right to have any automobile, sport utility vehicle, van,
truck, recreational vehicle, motorcycle, motorbike, or other motor vehicle parked, kept,
maintained, constructed, reconstructed, serviced or repaired in violation of this Declaration
towed away at the sole cost and expense of the owner of the vehicle. Any expense incurred by
the Association in connection with the towing of any vehicle shall be paid to the Association
upon demand by the owner of the towed vehicle.
4.17 Animals/Pets.
No animals, birds, insects, pigeons, poultry or livestock shall be kept on the Property unless the
presence of such creatures does not constitute a nuisance. This paragraph 4.17 does not apply
to the keeping of up to two (2) domesticated dogs, up to two (2) domesticated cats, and other
household pets which do not unreasonably bother or constitute a nuisance to others. Without
limiting the generality of the foregoing, consistent and/or chronic barking by dogs shall be
considered a nuisance. Each dog in Madison Square Subdivision shall be kept on a leash,
curbed, and otherwise controlled at all times when such animal is off the premises of its owner.
Such owner shall clean up any animal defecation immediately from the Common Area or public
right-of-way. Failure to do so may result, at the Board's discretion, with a Limited Assessment
levied against such animal owner.
4.18 Exemption of Grantor.
Nothing contained herein shall limit the right of Grantor to subdivide or re-subdivide any portion
of the Property, to grant licenses, to reserve rights-of way and easements with respect to the
Common Area to utility companies, public agencies, or others, or to complete excavation,
grading, and construction of Improvements to and on any portion of the Property, or to alter the
foregoing and its construction plans and designs, or to construct such additional Improvements
as Grantor deems advisable in the course of development of the Property. Such right shall
include, but shall not be limited to, erecting, constructing, and maintaining on the Property such
structures and displays as may be reasonably necessary for the conduct of Grantor's business
of completing the Buildings, Units and Common Area and disposing of Units by sales, leases or
otherwise. Grantor shall have the right at any time prior to acquisition of title to a Unit by a
purchaser from Grantor to grant, establish, and/or reserve on that Unit, additional licenses,
reservations and rights-of way to Grantor, to utility companies, or to others as may from time to
time be reasonably necessary to the proper development and disposal of the Property. Grantor
may use any structures owned by Grantor on the Property as model home complexes or real
estate sales or leasing offices for Units. Grantor need not seek or obtain approval of any
Improvement constructed or placed by Grantor or an affiliate of Grantor on any portion of the
Property. The rights of Grantor hereunder may be assigned by Grantor to any successor in
interest in connection with Grantor's interest in any portion of the Property, by an express written
assignment recorded in the Office of the Madison County Recorder.
4.19 Lawful Use.
No immoral, improper, offensive, or unlawful use shall be made in, on or of any part of any Unit.
All valid laws, zoning ordinances, and regulations of all governmental bodies having jurisdiction
over a Unit shall be observed. Any violation of such laws, zoning ordinances or regulations shall
be a violation of this Declaration.
4.20 Leases.
4.20.1 Any agreement for the leasing or rental of a Unit executed on or after the date
this Declaration is recorded (hereinafter in this Section 4.20 referred to as a "Lease") shall
provide that the terms of such Lease shall be subject in all respects to the provisions of the
Governance Documents. Said Lease shall further provide that any failure by the lessee
thereunder ("Lessee") to comply with any terms of the Governance Documents shall be a
default under the Lease and shall be deemed a violation of the terms of the Governance
Documents by the Owner. All Leases shall be in writing. The Owner of said leased Unit has the
duty and obligation to furnish the Board of Directors with the name or names of the Person or
Persons currently leasing said Unit and to maintain with the Association a record of the current
mailing address of said Owner. Any Owner who shall lease his Unit shall be responsible for
assuring compliance by such Owner's Lessee or other Occupants of the Unit with the
Governance Documents and any noncompliance by the Lessee or other Occupants of the Unit
with the Governance Documents shall be deemed noncompliance by the Owner and the Owner,
upon demand of the Association, shall immediately take all necessary actions to correct any
such violations and any deemed noncompliance by the Owner shall be enforceable as any
violation of the Governance Documents as provided in this Declaration or otherwise permitted
by law.
4.20.2 At least ten (10) days before commencement of the Lease term, the Owner shall
provide the Association with the following information: (1) the commencement date and
expiration date of the Lease term; (2) the name of each Lessee and each other Person who will
occupy the Unit during the Lease term; (3) the address and telephone number at which the
Owner can be contacted by the Association during the Lease term; and (4) the name, address
and telephone number of a Person whom the Association can contact during the Lease term in
the event of an emergency involving the Unit.
4.21 Variances.
The Board of Directors may, at its option and in extenuating circumstances, grant variances
from the restrictions set forth in this Article 4 if the Board determines in its discretion that: (a) a
restriction would create an unreasonable hardship or burden on an Owner or Occupant or a
change of circumstances since the recordation of this Declaration had rendered such restriction
obsolete; and (b) the activity permitted under the variance will not have any substantial adverse
effect on Owners and Occupants and is consistent with the high standards intended for Owners
and Occupants of Units. No variances shall be granted pursuant to this Section 4.21 unless also
approved in advance by the Grantor so long as the Grantor owns any Unit which is for sale to
the public.
4.22 Insurance Obtained By Owner.
Each Owner shall obtain insurance at the Owner's own expense covering the Owner's Unit and
all improvements therein in an amount equal to the maximum insurable replacement value of
the Unit and such improvements, and the Owner's personal property therein, and providing
personal liability coverage in an amount not less than $500,000.00 for any single occurrence.
The insurer issuing the policy shall not cancel or refuse to renew it until thirty (30) days after
notice of the proposed cancellation or nonrenewal has been mailed to the Owner and the
Association. Each Owner shall provide evidence to the Association that all insurance required
by this Section 4.22 has been obtained, and if any Owner fails to comply with the provisions of
this Section 4.22, the Association shall be entitled to obtain, but shall not be obligated to obtain,
the insurance for such Unit required by this Section
4.22. The cost of such insurance obtained by the Association shall be paid by the Owner, upon
demand, to the Association. The Association may enforce collection of any such amounts in the
same manner and to the same extent as provided for in this Declaration for the collection of
Assessments. If any insurer of liability of the Association shall require that each Owner obtain
and carry any additional insurance coverage for the Unit or personal property therein, then each
Owner shall comply with said requirements. The Association, upon resolution of the Board of
Directors, may increase the amount of personal liability coverage required under this Section
4.22 from time to time as it deems advisable or appropriate.
ARTICLE 5 - MADISON SQUARE HOMEOWNERS ASSOCIATION, INC.
5.1 Organization of Madison Square Homeowners Association,Inc.
Madison Square Homeowners Association ("Association") shall be initially organized by Grantor
as an Idaho nonprofit corporation under the provisions of the Idaho Code relating to general
non-profit corporations and shall be charged with the duties and invested with the powers
prescribed by law and set forth in the Articles, Bylaws, and this Declaration. Neither the Articles
nor the Bylaws shall be amended or otherwise changed or interpreted so as to be inconsistent
with this Declaration or with any Supplemental Declaration which Grantor might adopt pertaining
to the Subdivision.
5.2 Membership.
Each Owner, by virtue of being an Owner and for so long as such ownership is maintained, shall
be a Member of the Association and no Owner, except Grantor, shall have more than one
membership in the Association. Memberships in the Association shall be appurtenant to the Unit
owned by such Owner. The memberships in the Association shall not be transferred, pledged,
assigned, or alienated in any way except upon the transfer of Owner's title to the Unit and then
only to the transferee of such title to the Unit. Any attempt to make a prohibited membership
transfer shall be void and will not be reflected on the books of the Association.
5.3 Voting.
For voting purposes, the Association shall have two (2) classes of Members as described
below:
5.3.1 Class A Members . Owners other than Grantor,for so long as Grantor is the Class
B Member, shall be known as Class A Members. Each Class A Member shall be entitled to cast
one (1) vote for each Unit owned by such Class A Member on the day of the vote. Upon
termination of the Class B Member, Grantor shall become a Class A Member.
5.3.2 Class B Member. The Grantor shall be known as the Class B Member, and shall
be entitled to six (6) votes for each Unit of which Grantor is the Owner. The Class B Membership
shall terminate upon the latter to occur of the following: (i) when the total cumulative votes of the
Class A Members equal or exceed the total votes of the Class B
Members; or (ii) the expiration of ten (10) years after the date on which the first Unit is sold by
Grantor to an Owner.
Fractional votes shall not be allowed. If the Owner of a Unit shall be more than one (1) Person,
all such Persons 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 (1) representative selected by such
Persons as they, among themselves, may determine. In the event that such joint Owners are
unable to agree among themselves as to how their vote 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. The right to vote may not be severed
or separated from the ownership of the Unit to which it is appurtenant, except that any Owner
may give a revocable proxy, or may assign such Owner's right to vote to a lessee, mortgagee,
beneficiary, or contract purchaser of the Unit concerned, for the term of the lease, mortgage,
deed of trust, or contract. Any sale, transfer, or conveyance of such Unit to a new Owner shall
operate automatically to transfer the appurtenant voting right to the new Owner, subject to any
assignment of the right to vote to a lessee, mortgagee, or beneficiary as provided herein.
5.4 Board of Directors and Officers.
The affairs of the Association shall be conducted and managed by its Board of Directors and
such officers as the Board may elect from time to time, in accordance with the Articles, the
Bylaws and this Declaration, as the same may be amended from time to time. The Board shall
be elected in accordance with the provisions set forth in the Bylaws.
5.5 Power and Duties of the Association.
5.5.1 Powers. The Association shall have all the powers of a nonprofit corporation
organized under the general nonprofit corporation laws of the State of Idaho subject only to
such limitations upon the exercise of such powers as are expressly set forth in the Articles, the
Bylaws, and this Declaration, as the same may be amended from time to time. The Association
shall have the power to do any and all lawful things which may be authorized, required or
permitted to be done by the Association under Idaho law and under this Declaration, and the
Articles and Bylaws, and to do and perform any and all acts which may be necessary to, proper
for, or incidental to the proper management and operation of the Common Area and the
Association's other assets and affairs and the performance of the other responsibilities herein
assigned, including without limitation:
5.5.1.1 Assessments. The power to levy Assessments on any Owner or any
portion of the Property and to force payment of such Assessments, all in accordance
with the provisions of this Declaration.
5.5.1.2 Right of Enforcement. The power and authority from time to time in its
own name, on its own behalf or on behalf of any Owner who consents thereto, to
commence and maintain actions and suits to restrain and enjoin any breach or
threatened breach of this Declaration, the Articles, the Bylaws or any Association Rules
adopted pursuant to this Declaration or the Bylaws, and to enforce by injunction or
otherwise, all provisions hereof and thereof.
5.5.1.3 Delegation of Powers. The authority to delegate its power and duties to
committees, officers, employees, or to any person, firm, or corporation to act as
manager, and to contract for the maintenance, repair, replacement, and operation of the
Common Area. Neither the Association nor the members of its Board shall be liable for
any omission or improper exercise by the manager of any such duty or power so
delegated. All contracts for management of any Common Area shall be for a term not
exceeding one (1) year, and shall be subject to review by the Board upon the termination
of the Class B Membership.
5.5.1.4 Association Rules. The power to adopt, amend,and repeal by majority
vote of the Board such rules and regulations as the Association deems reasonable. The
Association may govern the use of the Common Areas, including, but not limited to, the
use of private streets by the Owners, Occupants and other Persons; provided, however,
that any Association Rules shall apply equally to all Owners and shall not be inconsistent
with this Declaration, the Articles, or the Bylaws. A copy of the Association Rules as they
may from time to time be adopted, amended, or repealed, shall be mailed or otherwise
delivered to each Owner. Upon such mailing or delivery, the Association Rules shall
have the same force and effect as if they were set forth in and were a part of this
Declaration. In the event of any conflict between such Association Rules and any other
provisions of this Declaration, the Articles or the Bylaws, the provisions of the
Association Rules shall be deemed to be superseded by provisions of this Declaration,
the Articles, or the Bylaws to the extent of any such inconsistency.
5.5.1.5 Emergency Powers. The power, exercisable by the Association or by
any person authorized by it, to enter upon or in any portion of the Property in the event
of any emergency involving illness or potential danger to life or property or when
necessary in connection with any maintenance or construction for which the Association
is responsible. Such entry shall be made with as little inconvenience to the Owner as
practicable, and any damage caused thereby shall be repaired by and at the expense of
the Association.
5.5.1.6 Licenses, Easements, and Rights-of-Way. The power to grant and
convey to any third party such licenses, easements, and rights-of-way in, on, or under
the Common Area as may be necessary or appropriate for the orderly maintenance,
preservation, and enjoyment of the Common Area, and for the preservation of the
health, safety, convenience, and welfare of the Owners, for the purpose of constructing,
erecting, operating, or maintaining:
5.5.1.6.1 Underground lines, cables, wires, conduits,or other devices for
the transmission of electricity or electronic signals-for lighting, heating, power,
telephone, television, or other purposes, and the above ground lighting
stanchions, meters, and other facilities associated with the provisions of lighting
and services, public sewers, storm drains, water drains, and pipes, water supply
systems, sprinkling systems, heating and gas lines or pipes, and any similar
public or quasi-public improvements or facilities; and
5.5.1.6.2 Mailboxes and sidewalk abutments around such mailboxes, or
any service facility, berms, fencing and landscaping abutting common areas,
public and private streets or land conveyed for any public or quasi-public purpose
including, but not limited to, bicycle pathways.
The right to grant such licenses, easements, and rights-of-way is hereby expressly
reserved to the Association and may be granted at any time prior to twenty-one (21)
years after the death of the issue of the individuals executing this Declaration on behalf
of Grantor who are in being as of the date hereof.
5.5.1.7 Newsletter. If it so elects, to prepare and distribute a newsletter on
matters of general interest to Association Members, the cost of which shall be included
in Regular Assessments.
5.5.2 Duties. In addition to duties necessary and proper to carry out the powers
delegated to the Association by this Declaration, and the Articles and Bylaws, without limiting
the generality thereof, the Association or its agent, if any, shall have the authority and the
obligation to conduct all business affairs of the Association and to perform, without limitation,
each of the following duties:
5.5.2.1 Operation and Maintenance of the Common Area .Operate, maintain,
and otherwise manage, or provide for the operation, maintenance, and management of,
the Common Area, including the repair and replacement of property damaged or
destroyed by casualty loss. Specifically, the Association shall, at Grantor's sole
discretion, operate and maintain all properties owned by Grantor which are designated
by Grantor for temporary or permanent use by Members of the Association. Additionally,
the Association may, in its discretion, limit or restrict the use of the Common Area to the
Owners and Occupants residing in the Madison Square Subdivision.
5.5.2.2 Reserve Account. Establish and fund a reserve account with a reputable
banking institution or savings and loan association or title insurance company authorized
to do business in the State of Idaho, which reserve account shall be dedicated to the
costs of repair, replacement, maintenance and improvement of the Common Area.
5.5.2.3 Maintenance of Berms, Retaining Walls, and Fences. Maintain the
berms, retaining walls, and fences, within and abutting the Common Area.
5.5.2.4 Taxes and Assessments . Pay all real and personal property taxes and
assessments separately levied against the Common Area, the Association, and/or any
other.property owned by the Association. Such taxes and assessments may be
contested or compromised by the Association, provided, however, that such taxes and
assessments are paid or a bond insuring payment is posted prior to the sale or
disposition of any property to satisfy the payment of such taxes and assessments. In
Addition, the Association shall pay all other federal, state, or local taxes, including
income or corporate taxes levied against the Association, in the event that the
Association is denied the status of a tax exempt corporation.
5.5.2.5 Water and Other Utilities. Acquire, provide,and/or pay for water, sewer,
garbage disposal, refuse and rubbish collection, electrical, telephone, and gas, and other
necessary services, for the Common Area.
5.5.2.6 Insurance. Obtain insurance from reputable insurance companies
authorized to do business in the State of Idaho, and maintain in effect any insurance
policy the Board deems necessary or advisable, including, without limitation, the
following policies of insurance:
5.5.2.6.1 Fire insurance, including those risks embraced by coverage of
the type known as the broad form "All Risk" or special extended coverage
endorsement on a blanket agreed amount basis for the full insurable replacement
value of all Improvements, equipment, and fixtures located within the Common
Area.
5.5.2.6.2 Comprehensive public liability insurance insuring the Board, the
Association, the Grantor, and the individual grantees and agents and employees
of each of the foregoing, against any liability incident to the ownership and/or use
of the Common Area. Limits of liability of such coverage shall be as follows:
Not less than One Million Dollars and No Cents ($1,000,000.00)
per person, and One Million Dollars and No Cents ($1,000,000.00) per
occurrence, with respect to personal injury or death, and One Million
Dollars and No Cents ($1,000,000.00) per occurrence with respect to
property damage.
If the Board of Directors so determines by resolution, in its
discretion, full coverage directors' and officers' liability insurance with a
limit of at least Two Hundred Fifty Thousand Dollars and No Cents
($250,000.00).
5.5.2.6.3 Such other insurance, including motor vehicle insurance and
Workmen's Compensation Insurance, to the extent necessary to comply with all
applicable laws and indemnity, faithful performance, fidelity, and other bonds as
the Board shall deem necessary or required to carry out the Association functions
or to insure the Association against any loss from malfeasance or dishonesty of
any employee or other person charged with the management or possession of
any Association funds or other property.
5.5.2.6.4 The Association shall be deemed trustee of the interests of all
Owners in connection with any insurance proceeds paid to the Association under
such policies, and shall have full power to receive such Owner's interests in such
proceeds and to deal therewith.
5.5.2.6.5 Insurance premiums for the above insurance coverage shall be
deemed a common expense to be included in the Regular Assessments levied
by the Association.
5.5.2.7 Rule Making. Make, establish, promulgate,amend, and repeal such
Association Rules as the Board shall deem advisable.
5.5.2.8 Enforcement of Restrictions and Rules. Perform such other acts,
whether or not expressly authorized by this Declaration, as may be reasonably advisable
or necessary to enforce any of the provisions of this Declaration, or of the Articles or the
Bylaws, including, without limitation, the recordation of any claim of lien with the Madison
County Recorder, as more fully provided herein.
5.6 Personal Liability.
No Member of the Board, or member of any committee of the Association, or any officer of the
Association, or the Grantor, or the manager, if any, shall be personally liable to any Owner, or to
any other party, including the Association, for any damage, loss, or prejudice suffered or claimed
on the account of any act, omission, error, or negligence of the Association, the Board, the
manager, if any, or any other representative or employee of the Association, the Grantor, or any
other committee, or any owner of the Association, or the Grantor, provided that such person,
upon the basis of such information as may be possessed by such person, has acted in good
faith without willful or intentional misconduct.
5.7 Budgets and Financial Statements.
Financial statements for the Association shall be prepared regularly and copies shall be
distributed to each Member of the Association as follows:
5.7.1 A pro forma operating statement or budget, for each fiscal year shall be distributed
not less than thirty (30) days before the beginning of each fiscal year. The operating statement
shall include a schedule of Assessments received and receivable, identified by Unit number.
5.7.2 Within ninety (90) days after the close of each fiscal year, the Association shall
cause to be prepared and available for delivery upon request to each Owner, a balance sheet
as of the last day of the Association's prior fiscal year and annual operating statements
reflecting the income and expenditures of the Association for the prior fiscal year.
5.8 Meetings of Association.
Each year the Association shall hold at least one (1) meeting of the Members with the date, time
and place for such meeting to be set by the Board as provided in the Bylaws.
ARTICLE 6 - RIGHTS TO COMMON AREAS
6.1 Use of Common Area.
Each Owner shall have the right to use of the Common Area (except parking spaces assigned
to Units of other Owners), which right shall be appurtenant to and shall pass with the title to
every Unit, subject to the following provisions:
6.1.1 The right of the Association to levy and increase Assessments for the
maintenance, repair, management and operation of improvements on the Common Area;
6.1.2 The right of the Association to suspend the voting rights and rights to use of the
Common Area (but not including access to private streets, cul-de-sacs and walkways of the
Property) by an Owner for any period during which any Assessment or charge against such
Owner's Unit remains unpaid, and for a period not to exceed sixty (60) days for any infraction of
the Association Rules; and,
6.1.3 The right of the Association to dedicate or transfer all or any part of the Common
Area to any public agency, authority, or utility for such purposes and subject to such conditions
as may be permitted by the Articles and the Bylaws and agreed to by the Members. No
dedication or transfer of said Common Area shall be effective unless an instrument agreeing to
such dedication or transfer signed by Members representing two-thirds (2/3) of each class of
Members has been recorded.
6.1.4 The right of the Association to prohibit the construction of structures or
Improvements on all Common Areas which interfere with the intended use of such areas as
private streets, cul-de-sacs and walkways.
6.2 Designation of Common Area.
Grantor shall designate and reserve the Common Area in the Declaration, Supplemental
Declarations, and/or recorded Plats, deeds, or other instruments, and/or as otherwise provided
herein.
6.3 Delegation of Right to Use.
Any Owner may delegate, in accordance with the respective Bylaws and Association Rules,
such Owner's right of enjoyment to the Common Area, to the members of such Owner's family
in residence, and such Owner's tenants, contract purchasers or other Occupants who reside on
such Owner's Unit. Only Grantor or the Association shall have the right to delegate the right of
enjoyment to the Common Area to the general public, and such delegation to the general public
shall be for a fee set by Grantor or the Association.
6.4 Damages.
Each Owner shall be fully liable for any damage to any Common Area which may be sustained
by reason of the negligence or willful misconduct of the Owner, such Owner's resident tenant,
contract purchaser, or other Occupants or such Owner's family, both minor and adult. In the
case of joint ownership of a Unit, the liability of such Owners shall be joint and several. :The
cost of correcting such damage shall be a Limited Assessment against the Unit and may be
collected as provided herein for the collection of other Assessments.
ARTICLE 7 - ASSESSMENTS
7.1 Covenant to Pay Assessments.
By acceptance of a deed to any Unit within the Property, the Owner of such Unit hereby
covenants and agrees to pay when due all Assessments or charges made by the Association,
including all Regular, Special, and Limited Assessments and charges made against such Unit or
Owner pursuant to the provisions of this Declaration or other applicable instrument.
7.1.1 Assessment Constitutes Lien. Such Assessments and charges, together with
interest, costs, and reasonable attorney's fees which may be incurred in collecting the same,
shall be a charge on the Unit and shall be a continuing lien upon the Unit against which each
such Assessment or charge is made.
7.1.2 Assessment is Personal Obligation. Each such Assessment and charge,
together with interest, costs and reasonable attorney's fees, shall also be the personal obligation
of the Owner of such Unit beginning with the time when the Assessment or charge falls due.
The personal obligation for delinquent Assessments shall not pass to such Owner's successors
in title unless expressly assumed by them but shall remain such Owner's personal obligation
regardless of whether he remains an Owner.
7.2 Regular Assessments .
All Owners, including the Grantor, are obligated to pay Regular Assessments to the treasurer of
the Association on a schedule of payments established by the Board.
7.2.1 Purpose of Regular Assessments . The proceeds fromRegular Assessments are
to be used to pay for all costs and expenses incurred by the Association, including legal and
attorneys' fees and other professional fees, for the conduct of its affairs, including without
limitation the costs and expenses of construction, improvement, protection, maintenance, repair,
management, and operation of the Common Area, including all Improvements located on the
Common Area, and an amount allocated to an adequate reserve fund to be used for repairs,
replacement, maintenance, and improvement of those elements of the Common Area, or other
property of the Association that must be replaced and maintained on a regular basis (collectively
"Expenses").
7.2.2 Computation of Regular Assessments . The Association shall compute the
amount of its Expenses on an annual basis. The Board shall compute the amount of Regular
Assessments owed beginning the first day of the third month following the month in which the
closing of the first sale of a Unit within the Property occurred for the purposes of the
Association's Regular Assessment ("Initiation Date"). Thereafter, the computation of Regular
Assessments shall take place not less than thirty (30) nor more than sixty (60) days before the
beginning of each fiscal year of the Association. The computation of the Regular Assessment
for the period from the Initiation Date until the beginning of the next fiscal year shall be reduced
by an amount which fairly reflects the fact that such period was less than one (I) year.
7.2.3 Amounts Paid by Owners. The Board can require,in its discretion or as provided
in the Articles or Bylaws, payment of Regular Assessments in monthly, quarterly, semi-annual,
or annual installments. The Regular Assessment to be paid by any particular Owner, except
Grantor, for any given fiscal year shall be computed as follows:
7.2.3.1 As to the Association's Regular Assessment,each Owner shall be
assessed and shall pay an amount computed by multiplying the Association's total
advance estimate of Expenses by the fraction produced by dividing the Units within the
Property attributable to the Owner by the total number of Units within the Property.
7.2.3.2 Up until two (2) years following the date of the sale of a Unit within the
Property, the Grantor shall be assessed the difference between the total revenue of the
Association less the total Expenses of the Association ("Shortfall") for the Common Area.
The Grantor agrees to pay the cost of any Shortfall in order to properly maintain the
Common Area during the development of the Property. After two (2) years from the date of the
first sale of a Unit within the Property, the Grantor shall be assessed the Regular Assessment
(defined in Section 7.2.3.1) for each Unit remaining within the Property owned by Owner.
7.3 Special Assessments .
7.3.1 Purpose and Procedure. In the event that the Board shall determine that its
respective Regular Assessment for a given calendar year is or will be inadequate to meet the
Expenses for any reason, including but not limited to costs of construction, reconstruction,
unexpected repairs or replacement of capital improvements upon the Common Area, attorney's
fees and/or litigation costs, other professional fees, or for any other reason, the Board thereof
shall determine the approximate amount necessary to defray such Expenses and levy a Special
Assessment against the Units within the Property which shall be computed in the same manner
as Regular Assessments. No Special Assessment shall be levied which exceeds twenty percent
(20%) of the budgeted gross Expenses of the Association for that fiscal year, without the vote or
written assent of the Owners representing a majority of the votes of the Members of the
Association. The Board shall, in its discretion, determine the schedule under which such Special
Assessment will be paid.
7.3.2 Consistent Basis of Assessment. Every Special Assessment levied by and for
the Association shall be levied and paid upon the same basis as that prescribed for the levying
and payment of Regular Assessments for the Association.
7.4 Limited Assessments.
Notwithstanding the above provisions with respect to Regular and Special Assessments, the
Board may levy a Limited Assessment against a Member as a remedy to reimburse the
Association for costs incurred in bringing the Member and/or such Member's Unit into
compliance with the provisions of the Governing Documents, or for otherwise providing any
goods or services benefiting less than all Members or all Members' Units.
7.5 Uniform Rate of Assessment .
Unless otherwise specifically provided herein, Regular and Special Assessments shall be fixed
at a uniform rate per Unit for all Members of the Association.
7.6 Assessment Period.
Unless otherwise provided in the Articles or Bylaws, the Assessment period shall commence on
the Initiation Date, and thereafter on January 1st of each year, and terminate December 31st of
the year. The first Assessment shall be prorated according to the number of months remaining
in the fiscal year and shall be payable in equal monthly installments or as otherwise determined
by the Board.
7.7 Notice and Assessment Due Date.
Ten (10) days prior written notice of Regular and Special Assessments shall be sent to the
Owner of every Unit subject thereto, and to any person in possession of such Unit. The due
dates for installment payment of Regular Assessments and Special Assessments shall be the
first day of each month unless some other due date is established by the Board. Each monthly
installment of the Regular Assessment or Special Assessment shall become delinquent if not
paid within ten (1O) days after the levy thereof.
There shall accrue with each delinquent installment payment a late charge equal to ten percent
(10%) of the delinquent installment. In addition, each installment payment which is delinquent
for more than twenty (20) days shall accrue interest at eighteen percent (18%) per annum
calculated from the date of delinquency to and including the date full payment is received by the
Association. The Association may bring an action against the delinquent Owner and may
foreclose the lien against such Owner's Unit as more fully provided herein. Each Owner is
personally liable for Assessments, together with all interest, costs and attorney's fees, and no
Owner may exempt such Owner from such liability by a waiver of the use and enjoyment of the
Common Area, or by lease or abandonment of such Owners Unit.
7.8 Estoppel Certificate.
The Association, upon at least twenty (20) days prior written request, shall execute,
acknowledge and deliver to the party making such request, a statement in writing stating
whether or not, to the knowledge of the Association, a particular Owner is in default under the
provisions of this Declaration, and further stating the dates to which any Assessments have
been paid by the Owner. Any such certificate delivered pursuant to this paragraph 7.8 may be
relied upon by any prospective purchaser or mortgagee of the Owner's Unit. Reliance on such
Certificate may not extend to any default as to which the signor shall have had no actual
knowledge.
7.9 Special Notice and Quorum Requirements.
Notwithstanding anything to the contrary contained in either the Bylaws or the Articles, written
notice of any meeting called for the purpose of levying a Special Assessment, or for the purpose
of obtaining a membership vote in connection with an increase in the Regular Assessment, shall
be sent to all Members of the Association and to any person in possession of a Unit, not less
than fifteen (15) days nor more than thirty (30) days before such meeting. At the first such
meeting called, the presence of Members or of proxies entitled to cast sixty percent (60%) of the
total votes of the Association shall constitute a quorum. If such a quorum is not present,
subsequent meetings may be called subject to the same notice requirement, and the required
quorum at the subsequent meetings shall be fifty percent (50%) of the quorum required at the
preceding meeting. No such subsequent meeting shall be held more than thirty (30) days
following the preceding meeting.
ARTICLE 8 - ENFORCEMENT OF ASSESSMENTS; LIENS
8.1 Right to Enforce.
The Association has the right to collect and enforce its Assessments pursuant to the provisions
hereof or applicable law. Each Owner of Unit, upon becoming an Owner of such Unit, shall be
deemed to covenant and agree to pay each and every Assessment provided for in this
Declaration and agrees to the enforcement of all Assessments in the manner herein specified or
applicable law. In the event an attorney or attorneys are employed for the collection of any
Assessment, whether by suit or otherwise, or to enforce compliance with or specific
performance of the terms and conditions of this Declaration, each Owner agrees to pay
reasonable attorney's fees in addition to any other relief or remedy obtained against such
Owner. The Board or its authorized representative may enforce the obligations of the Owners to
pay such Assessments by commencement and maintenance of a suit at law or in equity, or the
Board may exercise the power of foreclosure and sale pursuant to paragraph 8.3 to enforce the
liens created hereby. A suit to recover a money judgment for an unpaid Assessment shall be
maintainable without foreclosing or waiving the lien hereinafter provided.
8.2 Assessment Liens.
8.2.1 Creation. There is hereby created a claim of lien with power of sale on each Unit
to secure payment of any and all Assessments levied against such Unit pursuant to this
Declaration together with late charges and interest thereon and all costs of collection which may
be paid or incurred by the Association, including reasonable attorney's fees. All sums assessed
in accordance with the provisions of this Declaration shall constitute a lien on such Unit upon
recordation of a claim of lien with the Madison County Recorder. Such lien shall be prior and
superior to all other liens or claims created subsequent to the recordation of the claim of lien
except for tax liens for real property taxes on any Unit and assessments on any Unit in favor of
any municipal or other governmental assessing body which, by law, would be superior thereto.
8.2.2 Claim of Lien. Upon default of any Owner in the payment of any Regular, Special
or Limited Assessment issued hereunder, the Association may cause to be recorded in the
office of the Madison County Recorder a claim of lien. The claim of lien shall state the amount of
such delinquent sums and other authorized charges (including the cost of recording such
notice), a sufficient description of the Unit(s) against which the same have been assessed, and
the name of the record Owner thereof. Each delinquency shall constitute a separate basis for a
claim of lien, but any number of defaults may be included within a single claim of lien. Upon
payment to the Association of such delinquent sums and charges in connection therewith or
other satisfaction thereof, the Association shall cause to be recorded a further notice stating the
satisfaction or release of such delinquent sums and charges. The Association may demand and
receive the cost of preparing and recording such satisfaction or release before recording the
same.
8.3 Method of Foreclosure.
Such lien may be foreclosed by appropriate action in court or by sale by the Association, its
attorney or other person authorized to make the sale. Such sale shall be conducted in
accordance with the provisions of the Idaho Code applicable to the exercise of powers of sale
permitted by law. The Board is hereby authorized to appoint its attorney, any officer or director of
the Association, or any title company authorized to do business in Idaho as trustee for the
purpose of conducting such power of sale or foreclosure.
8.4 Required Notice.
Notwithstanding anything contained in this Declaration to the contrary, no action may be brought
to foreclose the lien created by recordation of the claim of lien, whether judicially, by power of
sale or otherwise, until the expiration of thirty (30) days after a copy of such claim of lien has
been deposited in the United States mail, certified or registered, postage prepaid, to the Owner
of the Unit(s) described in such claim of lien, and to the person in possession of such Unit(s)
and a copy thereof is recorded by the Association in the Office of the Madison County Recorder.
8.5 Subordination to Certain Trust Deeds.
The lien for the Assessments provided for herein in connection with a given Unit shall not be
subordinate to the lien of any deed of trust or mortgage except the lien of a first deed of trust or
first mortgage given and made in good faith and for value that is of record as an encumbrance
against such Unit prior to the recordation of a claim of lien for the Assessments. Except as
expressly provided in paragraph 8.6 with respect to a first mortgagee who acquires title to a
Unit, the sale or transfer of any Unit shall not affect the Assessment lien provided for herein, nor
the creation thereof by the recordation of a claim of
lien, on account of the Assessments becoming due whether before, on, or after the date of such
sale or transfer, nor shall such sale or transfer diminish or defeat the personal obligation of any
Owner for delinquent Assessments as provided for in this Declaration.
8.6 Rights of Mortgagees.
Notwithstanding any other provision of this Declaration, no amendment of this Declaration shall
operate to defeat the rights of the beneficiary under any deed of trust upon a Unit made in good
faith and for value, and recorded prior to the recordation of such amendment, provided that after
the foreclosure of any such deed of trust such Unit shall remain subject to this Declaration as
amended.
ARTICLE 9 - INSPECTION OF ASSOCIATION' S BOOKS AND RECORDS
9.1 Member's Right of Inspection.
The membership register, books of account and minutes of meetings of the Board and
committees, if any, of the Association shall be made available for inspection and copying by any
Member of the Association or by such Member's duly appointed representatives, at any
reasonable time and for a purpose reasonably related to such Member's interest as a Member
at the office of the Association or at such other place as the Board of such Association shall
prescribe. No Member or any other person, except Grantor, shall copy the membership register
for the purposes of solicitation of or direct mailing to any Member of the Association.
9.2 Rules Regarding Inspection of Books and Records.
The Board shall establish reasonable rules with respect to:
9.2.1 Notice to be given to the custodians of the records by the persons desiring to make
the inspection.
9.2.2 Hours and days of the week when such an inspection may be made.
9.2.3 Payment of the cost of reproducing copies of documents requested pursuant to
this Article 9.
9.3 Director's Rights of Inspection.
Every director shall have the absolute right at any reasonable time to inspect all books, records
and documents of the Association, and the physical properties owned or controlled by the
Association. The right of inspection by a director includes the right to make extracts and copies
of documents.
ARTICLE 10 - EASEMENTS
10.1 Easements of Encroachment.
There shall be reciprocal appurtenant easements of encroachment as between each Unit and
such portion or portions of the Common Area adjacent thereto or as between adjacent Units due
to the unwillful placement or settling or shifting of the sidewalks and driveways constructed,
reconstructed or altered thereon in accordance with the terms of this Declaration. Easements of
encroachment shall be valid only so long as they exist, and the rights and obligations of Owners
shall not be altered in any way because of encroachments, settling or shifting of the
Improvements; provided, however, that in no event shall a valid easement for encroachment
occur due to the willful act or acts of an Owner. In the event any Unit is partially or totally
destroyed, and then repaired or rebuilt, the Owners of Units agree that minor encroachments
over an adjoining Unit or Units that existed prior to the destruction may be reconstructed
pursuant to the easement granted by this paragraph 12.l
10.2 Easements of Access.
All Owners of Units will have a perpetual easement for access, ingress and egress over the
Common Area, including but not limited to the private streets, driveways and walkways. Such
easements shall run with the land, and may be used by Grantor, and by all Owners, Occupants
and other persons residing on or temporarily visiting the Property, for pedestrian walkways,
vehicular access and such other purposes reasonably necessary for the use and enjoyment of a
Unit or the Common Area.
10.3 Utility Easements.
Grantor expressly reserves for the benefit of all the Property reciprocal easements of access,
ingress and egress for all Owners to and from their respective Units for installation and repair of
utility services, and for necessary maintenance and repair thereof. Notwithstanding anything
expressly or impliedly contained herein to the contrary, this Declaration shall be subject to all
easements heretofore or hereafter granted by Grantor for the installation and maintenance of
utilities and drainage facilities that are required for the development of the Property. In addition,
Grantor hereby reserves for the benefit of the Association the right to grant additional
easements and rights-of-way over and under the Property, as appropriate, until close of escrow
for the sale of the last Unit of Grantor within the Property to a purchaser.
10.4 Rights and Duties Concerning Utility Easements.
The rights and duties of the Owners of the Units within the Property with respect to utilities shall
be governed by the following:
10.4.1 Wherever utility connections are installed within the Property, which connections
or any portions thereof lie in or upon Units owned by an Owner other than the Owner of the Unit
served by the connections, the Owner of the Unit served by the connections shall have the right,
and is hereby granted an easement to the full extent necessary therefor, to enter upon any Unit
or to have their agent enter upon any Unit within the Property in or upon which said connections
or any portion thereof lie, to repair, replace and generally maintain the connections as and when
it may be necessary.
10.4.2 Whenever utility connections are installed within the Property, which connections
serve more than one Unit, the Owner of each Unit served by the connections shall be entitled to
full use and enjoyment of such portions of said connections as service to such Owner's Unit.
10.5 Disputes as to Sharing of Costs.
In the event of a dispute between Owners with respect to the repair or rebuilding of utility
connections, or with respect to the sharing of the cost therefore, upon written request of one (1)
of such Owners addressed to the Association, the matter shall be submitted to the Board which
shall decide the dispute and, if appropriate, make an appropriate Assessment against any or all
of the Owners involved on behalf of the prevailing Owner(s), which Assessment shall be
collected and enforced in the manner provided by this Declaration for Limited Assessments.
ARTICLE 11 - LIMITATION OF LIABILITY
11.1 Limitation on Grantor's Liability.
Notwithstanding anything to the contrary in any of the Governance Documents or otherwise,
each Owner, by accepting title to a Unit and becoming an Owner, acknowledges and agrees
that neither the Grantor nor any officer, member, manager, agent, or employee of Grantor or the
Grantor's successors or assigns (or any officer, director, shareholder, member, manager,
principal, owner, partner, agent or employee of any such successor or assign) shall have any
personal liability to the Association, to any Owner, Occupant, or other Person arising under, in
connection with or resulting from (including without limitation resulting from action or failure to
act with respect to) this Declaration, any of the other Governance Documents, or otherwise,
except to the extent of the Grantor's (or its successors or assigns) interest in the Unit; and, in
the event of a judgment against Grantor (or its successors or assigns) no execution or other
action shall be sought or brought thereon against any other assets, nor be a lien upon such
other assets, of the Grantor nor any officer, member, manager, agent or employee of the
Grantor or the Grantor's successors or assigns (or any officer, director, shareholder, member,
manager, principal, owner, partner, agent, or employee of any such successor or assign).
11.2 Non Liability of Officials.
To the fullest extent permitted by law, neither Grantor (nor any officer, member, manager, agent,
or employee of Grantor), the Board, the Association, any committees of the Association or any
member thereof, nor any directors or officers of the Association, shall be liable to any Member,
Owner, Occupant, the Association or any other Person for any damage, loss or prejudice
suffered or claimed on account of any decision, approval or disapproval of drawings or
specifications (whether or not defective), course of action, act, inaction, omission, error,
negligence or the like made in good faith and which Grantor, the Board, the Association, any
such committee or such officers or directors of the Association, reasonably believed to be within
the scope of their respective duties. To the fullest extent permitted by law, every director and
officer of the Association, every member of any committee of the Association and the Grantor
(and any officer, member, manager, agent or employee of Grantor) shall be indemnified by the
Association and every other Person serving as an employee or direct agent of the Association,
or on behalf of the Association as a member of a committee or otherwise, may, in the discretion
of the Board, be indemnified by the Association, against all expenses and liabilities, including
without limitation, attorney's fees and other expenses reasonably incurred by or imposed upon
him in connection with any proceeding to which he may be a party or in which he may become
involved by reason of his being or having served in such capacity on behalf of the Association
(or in the case of Grantor, by reason of having appointed, removed or controlled or failed to
control members of the Board) or any settlement thereof, whether or not he is a director, officer,
member of a committee or serving in such other specified capacity at the time such expenses
are incurred, provided that the Board shall determine, in good faith, that such officer, director,
member of any committee or other person or Grantor (and any officer, member, manager, agent,
or employee of Grantor), did not act, failed to act or refused to act with gross negligence or
fraudulent or criminal intent in the performance of his duties. The foregoing rights of
indemnification shall be in addition to and not exclusive of all other rights to which such persons
may be entitled at law or otherwise including, but not limited to, any such insurance which may
be available for such purposes.
ARTICLE 12 - MISCELLANEOUS
12.1 Term.
The easements created hereunder shall be perpetual, subject only to extinguishment by the
holders of such easements as provided by law. The covenants, conditions, restrictions, and
equitable servitudes of this Declaration shall run until Dec 31, 2032, unless amended as herein
provided. After such date, such covenants, conditions, and restrictions shall be automatically
extended for successive periods of ten (10) years each, unless amended or extinguished by a
written instrument executed by Members holding at least three-fourths (3/4) of the voting power
of the Association and such written instrument is recorded with the Madison County Recorder.
Further provided that the Association shall not be dissolved without the prior written approval of
the City of Rexburg, such consent not to be unreasonably withheld provided that a responsible
successor organization shall agree to perform those maintenance responsibilities arising from
applicable city and county governmental requirements.
12.2 Amendment.
12.2.1 By Grantor. Except as provided in Section 12.3 below, until the recordation of the
first deed to a Unit in the Property, the provisions of this Declaration may be amended, modified,
clarified, supplemented, added to (collectively, "amendment") or terminated by Granter by
recordation of a written instrument setting forth such amendment or termination.
12.2.2 By Owners. Except where a greater percentage is required by express provision
in this Declaration, the provisions of this Declaration, other than this Section 12.2, any
amendment shall be by an instrument in writing signed and acknowledged by the president and
secretary of the Association certifying and attesting that such amendment has been approved
by the vote or written consent of Owners representing more than sixty-seven percent (67%) of
the votes in the Association, and such amendment shall be effective upon its recordation with
the Madison County Recorder. Any amendment to this Section 12.2 shall require the vote or
written consent of Members holding ninety-five percent (95%) of the voting power of the
Association.
12.2.3 Effect of Amendment . Any amendment of this Declaration approved in the
manner specified above shall be binding on and effective as to all Owners and their respective
Units notwithstanding that such Owners may not have voted for or consented to such
amendment. Such amendments may add to and increase the covenants, conditions,
restrictions, and easements applicable to the Property but shall not prohibit or unreasonably
interfere with the allowed uses of such Owner's Unit which existed prior to the said amendment.
12.3 Notices.
Any notices permitted or required to be delivered as provided herein shall be in writing and it
may be delivered either personally or by mail. If delivery is made by mail, it shall be deemed to
have been delivered seventy-two (72) hours after the same has been deposited in the United
States mail, postage prepaid, addressed to any person at the address given by such person if
no address has been given to the Association. Such address may be changed from time to time
by notice in writing to the Association, as provided in this Section 12.3.
12.4 Enforcement and Non-Waiver.
12.4.1 Right of Enforcement. The Association may enforce the Governance
Documents in any manner provided for in the Governance Documents or by law or in equity,
including, but not limited to:
(a)imposing reasonable monetary penalties after notice and an opportunity to be
heard is given to the Owner or other violator. An Owner shall be responsible for
payment of any fine levied or imposed against the Owner or any other Occupant
of the Owner's Unit;
(b)suspending an Owner's right to vote;
(c)suspending any Person's right to use any facilities within the Common Area;
provided, however, nothing herein shall authorize the Board to limit ingress to or
egress from a Unit;
(d)suspending any services provided by the Association to an Owner or the Owner's
Unit if the Owner is more than twenty (20) days delinquent in paying any
Assessment or other charge owed to the Association;
(e)exercising self-help of taking action to abate any violation of the Governance
Documents in a non-emergency situation;
(f)requiring an Owner, at the Owner's expense, to remove any structure or
Improvement within such Owner's Unit in violation of this Declaration and to
restore the Unit to its previous condition and, upon failure of the Owner to do so,
the Board of Directors or its designee shall have the right to enter the Unit,
remove the violation and restore the Unit to substantially the same condition as
previously existed at the Owner's expense, and any such action shall not be
deemed a trespass;
(g)without liability to any Person, prohibiting any Owner or any contractor,
subcontractor, agent, employee or other Occupant of the Owner who fails to
comply with the terms and provisions of the Governance Documents from
continuing or performing any further activities on the Unit;
(h)towing vehicles which are parked m violation of this Declaration or the
Association Rules;
(i)filing a suit at law or in equity to enjoin a violation of the Governance Documents,
to compel compliance with the Governance Documents, to recover monetary
penalties or money damages or to obtain such other relief as to which the
Association may be entitled; and
(j)recording a written notice of a violation by any Owner or any restriction or
provision of the Governance Documents. The notice shall be executed and
acknowledged by an officer of the Association or other person authorized by the
Board of Directors and shall contain substantially the following information; (i) the
name of the Owner;
(ii) the legal description of the Unit against which the notice is being recorded; (iii) a brief
description of the nature of the violation; (iv) a statement that the notice is being recorded by the
Association pursuant to this Declaration; and (v) a statement of the specific steps which must be
taken by the Owner to cure the violation. Recordation of a notice of violation shall serve as a
notice to the Owner and to any subsequent purchaser of the Unit that there is a violation of the
provisions of the Governance Documents. If, after the recordation of such notice of violation, it is
determined by the Association that the violation referred to in the notice of violation does not
exist or that the actual violation referred to in the notice of violation has been cured, the
Association shall record a notice of compliance which shall state the legal description of the Unit
against which the notice of violation was recorded, the recording data of the notice of violation,
and the violation referred to in the notice of violation has been cured or, if such be the case, that
it did not exist. Any notice of violation or notice of compliance which is recorded against any Unit
must be delivered to the Owner of such Unit in the manner required by Section 12.3.
12.4.2 Violations and Nuisances. The failure of any Owner of a Unit to comply with any
provision hereof, or with any provision of the Articles or Bylaws, is hereby declared a nuisance
and will give rise to a cause of action in the Grantor, the Association or any Owner for recovery
of damages or for negative or affirmative injunctive relief or both. However, any other provision
to the contrary notwithstanding, only Grantor, the Association, the Board, or a duly authorized
agent of any of them, may enforce by self-help any of the provisions hereof only if such self-help
is preceded by reasonable notice to the Owner.
12.4.3 Violation of Law. Any violation of any state,municipal, or local law, ordinance, or
regulation pertaining to the ownership, occupation or use of any Unit within the Property or the
Common Area is hereby declared to be a violation of this Declaration and subject to any or all of
the enforcement procedures set forth in this Declaration and any or all enforcement procedures
in law and equity.
12.4.4 Remedies Cumulative. Each remedy provided herein is cumulative and not
exclusive.
12.4.5 Non-Waiver. The failure to enforce any provision herein at any time shall not
constitute a waiver of the right to enforce any such provision.
12.5 Binding Effect.
By acceptance of a deed for, or by acquiring any interest in, any Unit, each Owner, for himself,
his heirs, and every Occupant, personal representative, successor, transferee and assignee of
such Owner, binds himself, his heirs, Occupants, personal representatives, successors,
transferees and assignee, to all of the provisions, restrictions, covenants, conditions, rules and
regulations now or hereafter imposed by or pursuant to any of the Governance Documents and
any amendments thereof. In addition, each such Person by so doing thereby acknowledges that
the Governance Documents set forth a general scheme for the improvement and development
of the Property and hereby evidences his interest that all the restrictions, conditions, covenants,
rules and regulations contained in the Governance Documents shall run with the land and be
binding on all subsequent and future Owners, grantees, purchasers, assignees, and transferees
thereof. Furthermore, each such Person fully understands and acknowledges that the
Governance Documents shall be mutually beneficial, prohibitive and enforceable by the various
subsequent and future Owners. Grantor, for itself and Grantor's successors, assigns and
grantees, covenants and agrees that the Units and the membership in the Association and the
other rights created by the Governance Documents shall not be separated or separately
conveyed, and each shall be deemed to be conveyed or encumbered with its respective Unit
even though the description in the instrument of conveyance or encumbrance may refer only to
the Unit.
12.6 Survival of Liability.
The termination of membership in the Association shall not relieve or release any such former
Owner or Member from any liability or obligation incurred under, or in any way connected with,
the Association during the period of such ownership or membership, or impair any rights or
remedies which the Association may have against such former Owner or Member arising out of,
or in any way connected with, such ownership or membership and the covenants and
obligations incident thereto.
12.7 Joint and Several Liability.
In the case of joint ownership of a Unit, the liabilities and obligations of each of the joint Owners
set forth in, or imposed by, the Governance Documents shall be joint and several.
12.8 Compliance by Occupants.
Each Owner shall be responsible for compliance by such Owner's Occupants and their
respective servants, agents, and employees with the provisions of the Governance Documents.
An Owner's failure to insure compliance by such Persons shall be grounds for the same action
available to the Association or any other Owner by reason of such Owner's own noncompliance.
12.9 Attorneys' Fees.
In the event the Grantor, the Association or any Owner employs an attorney or attorneys to
enforce a lien or to collect any amounts due from an Owner or to enforce compliance with or
recover damages for any violation or noncompliance with any Governance Documents, the
prevailing party in any such action shall be entitled to recover from the non prevailing party all
reasonable costs and attorneys' fees incurred in the action.
12.10 Number of Days.
In computing the number of days for purposes of any provision of the Governance Documents,
all days shall be counted including Saturdays, Sundays and holidays; provided, however, that if
the final day of any time period falls on a Saturday, Sunday or legal holiday, then the final day
shall be deemed to be the next day which is not a Saturday, Sunday or legal holiday.
12.11 Construction Defect Dispute Notification and Resolution Procedure.
(a)All actions or claims (i) by the Association against Grantor or any of its members,
managers, agents or employees (collectively, the "Grantor Parties"), (ii) by any
Owner(s) against any one (1) or more of the Grantor Parties, (iii) by both the
Association and any Owner(s) against any one (1) or more of the Grantor Parties,
or (iv) any other Person subject to this Declaration against any one (!) or more of
the Grantor Parties, relating to or arising out of the Property, any Unit or the
Common Area, including but not limited to, this Declaration or any other
Governance Documents, the use or condition of the Property, any Unit or the
Common Area, or the design or construction of or any condition on or affecting
the Property, any Unit or the Common Area, including, but not limited to,
construction defects, surveys, soil conditions, grading, specifications, installation
of Improvements (including, but not limited to, Units) or disputes which allege
negligence or other tortuous conduct, breach of contract, breach of implied or
express warranties as to the condition of the Property, any Unit or the Common
Area or any Improvements, or any other claim in contract, tort or otherwise
(collectively, "Disputes") shall be subject to the provisions of this Section 12.11.
Grantor and each Owner acknowledge that the provisions set forth in this Section
12.11 shall be binding upon current and future Owners and Occupants and upon
the Association, whether acting for itself or on behalf of any Owners or
Occupants.
(b)The Association, the Grantor, Owners, Occupants and other Persons bound by
this Declaration, and any Person not otherwise bound by this Declaration who
agrees to submit to the dispute resolution procedures as set forth in this Section
12.11 (herein all such parties sometimes collectively referred to as the "parties")
agree that the dispute resolution procedures set forth in this Section 12.11 shall
apply to all Disputes and any other claims of any kind (herein referred to
collectively as "Claims" or, individually, "Claim") held by the Association, the
Grantor, Owners, Occupants and any other Persons against any other Person.
12.11.1 Notice. Any Person who contends or alleges to have a Claim against any
Grantor Parties or any other Person shall notify Grantor or such Person in writing of the Claim
(herein referred to as the "Claim Notice") setting forth the nature of the Claim, the factual and
legal basis of the Claim and any other information necessary to fully and adequately appraise
Grantor or such Person of the nature of the Claim asserted against any such Grantor Parties or
such Person including a description of the proposed remedy and actions which the claimant
alleges to be necessary in order to resolve the Claim.
12.11.2 Right to Inspect and Right to Corrective Action if Claim Against Grantor.
Within a reasonable period after receipt of a Claim Notice by Grantor of any Claim against any
Grantor Parties, which period shall not exceed sixty (60) days, Grantor and the claimant shall
meet at a mutually acceptable place on the Property to discuss the Claim. At such meeting or at
such other mutually agreeable time, the Grantor and the Grantor's representatives shall have
full access to the Unit or other portion of the Property that is the subject of the Claim and shall
have the right to conduct inspections, testing and/or destructive or invasive testing in a manner
deemed appropriate by Grantor (provided Grantor shall repair or replace any property damaged
or destroyed during such inspection or testing), which rights shall continue until such time as the
Claim is resolved. If the Grantor elects to take any corrective action, Grantor and Grantor's
representatives and agents shall be provided full access to the Unit or other portion of the
Property which is the subject of the Claim to take and complete corrective action. The parties
shall negotiate in good faith in an attempt to resolve the Claim.
12.11.3 No Additional Obligations; Irrevocability and Waiver of Right. Nothing set
forth in Section 12.11.2 shall be construed to impose any obligation on Grantor to inspect, test,
repair or replace any portion of the Property or any Unit for which Grantor is not otherwise
obligated under applicable law or any limited warranty provided by Grantor in connection with
the sale of the Unit and/or the Improvements constructed thereon. The right of Grantor to enter,
inspect, test, repair and/or replace reserved hereby shall be irrevocable and may not be waived
or otherwise terminated except by a writing, in recordable form executed and recorded by
Grantor in the Official Records of Madison County, Idaho.
12.11.4 Arbitration. The parties shall attempt to settle the Claim through negotiation.
Should the parties not be successful in resolving any Claim, within thirty (30) days after the date
of the Claim Notice or such longer period as may be mutually agreed upon in writing by the
parties, such Claim shall be resolved by binding arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association as modified or as otherwise provided in
this Section 12.11.4. The parties shall cooperate in good faith to attempt to cause all necessary
and appropriate parties to be included in the arbitration proceeding. Subject to the limitations
imposed in this Section 12.11.4, the arbitrator shall have the authority to try all issues, whether
of fact or law. If the Claim is not resolved by mutual agreement of the parties, and if such Claim
and the parties are therefore subject to mandatory arbitration in accordance with this Section
12.11.4, the arbitration shall be conducted in accordance with the following rules:
12.11.4.1 Place. The proceedings shall be heard in Madison County, Idaho.
12.11.4.2 Arbitration. A single arbitrator shall be selected in accordance with the
rules of the American Arbitration Association from panels maintained by the American
Arbitration Association with experience in relevant real estate matters or construction.
The arbitrator shall not have any relationship to the parties or interest in the Property.
The parties to the Claim shall meet to select the arbitrator within ten (10) days after the
Claim becomes subject to mandatory arbitration as provided in this Section 12.11.4.
12.11.4.3 Commencement and Timing of Procedures. The arbitrator shall
promptly commence the proceeding at the earliest convenient date in light of all of the
facts and circumstances and shall conduct the proceeding without undue delay.
12.11.4.4 Pre-hearing Conferences. The arbitrator may require one
(1) or more pre-hearing conferences.
12.11.4.5 Discovery. The parties shall be entitled only to limited discovery,
consisting of the exchange between the parties of only the following matters: (i) witness
lists; (ii) expert witness designations; (iii) expert witness reports; (iv) exhibits; (v) reports
of testing or inspections of the property subject to the Claim, including but not limited to,
destructive or invasive testing; and (vi) trial briefs. The parties shall also be entitled to
conduct further tests and inspections as provided in Section 12.11.2. Any other discovery
shall be permitted by the arbitrator upon a showing of good cause or based on the
mutual agreement of the parties. The arbitrator shall oversee discovery and may enforce
all discovery orders in the same manner as any trial court judge.
12.11.4.6 Limitation on Remedies/Prohibition on the Award of Punitive
Damages. The arbitrator shall not have the power to award punitive or consequential
damages. As further provided below, the right to punitive and consequential damages is
waived by all parties subject to this Declaration. The arbitrator shall have the power to
grant all other legal and equitable remedies and award compensatory damages in the
proceeding.
12.11.4.7 Motions. The arbitrator shall have the power to hear and dispose of
motions, including motions to dismiss, motions for judgment on the pleadings and
summary judgment motions, in the same manner as a trial court judge, except the
arbitrator shall also have the power to adjudicate summarily issues of fact or law
including the availability of remedies, whether or not the issue adjudicated could dispose
of an entire cause of action or defense.
12.11.4.8 Arbitration Award . The arbitrator's award may be enforced as
provided for under the laws of the State of Idaho.
12.11.5 WAIVERS. NOTICE: BY ACCEPTANCE OF A DEED FOR,OR BY ACQUIRING
ANY OWNERSHIP INTEREST IN, ANY UNIT, EACH OWNER, FOR HIMSELF AND FOR
EACH OF HIS OCCUPANTS, HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS,
TRANSFEREES AND ASSIGNEES, AGREES TO HAVE ANY AND ALL DISPUTES AND
CLAIMS RESOLVED ACCORDING TO THE PROVISIONS OF SECTION 12.11 AND WAIVES
THE RIGHT TO PURSUE ANY DISPUTE IN ANY MANNER OTHER THAN AS PROVIDED IN
SECTION 12.11. GRANTOR, THE ASSOCIATION AND EACH OWNER AND OCCUPANT
ACKNOWLEDGE THAT BY AGREEING TO RESOLVE ALL DISPUTES AND CLAIMS AS
PROVIDED IN SECTION 12.11, THEY ARE GIVING UP THEIR RESPECTIVE RIGHTS TO
HAVE SUCH DISPUTES TRIED BEFORE A JURY. GRANTOR, THE ASSOCIATION AND
EACH OWNER AND OCCUPANT FURTHER WAIVE THEIR RESPECTIVE RIGHTS TO AN
AWARD OF PUNITIVE AND CONSEQUENTIAL DAMAGES RELATING TO ANY AND EVERY
DISPUTE OR CLAIM. BY ACCEPTANCE OF A DEED FOR, OR BY ACQUIRING ANY
OWNERSHIP INTEREST IN, ANY UNIT, EACH OWNER AND OCCUPANT OF SUCH UNIT
VOLUNTARILY ACKNOWLEDGES THAT HE IS GIVING UP ANY RIGHTS HE MAY POSSESS
TO PUNITIVE AND CONSEQUENTIAL DAMAGES OR THE RIGHT TO A TRIAL BEFORE A
JURY RELATING THERETO.
12.11.6 Statutes of Limitation. Nothing in this Section 12.11 shall be considered to toll,
stay, reduce or extend any applicable statute of limitation.
12.11.7 Required Consent of Grantor to Modify. Neither this Section 12.11 nor
Section 12.12 below may be amended at any time except in accordance with this Declaration
and with the express written consent of the Grantor.
12.12 Required Consent of Owners for Legal Action .
Notwithstanding anything to the contrary contained in this Declaration and in addition to any
actions of the Association required by law, any action or Claim instituted by the Association
against any one (1) or more of the Grantor Parties, relating to or arising out of the Property, any
Unit, the Common area, this Declaration or any other Governance Documents, the use or
condition of the Property, any Unit, the Common Area or any Improvements, or the design or
construction of or any condition on or affecting the Property, any Unit, the Common Area or any
Improvements, including, but not limited to, construction defects, surveys, soil conditions,
grading, specifications, installation of Improvements or disputes which allege negligence or
other tortious conduct, breach of contract or breach of implied or express warranties as to the
condition of the Property, any Unit, the
Common Area, or any Improvements, shall have first been approved by Owners representing
more than fifty percent (50%) of the votes in the Association. In the event that the Association
commences any action or claim, all Owners must notify prospective purchasers of such action
or claim.
12.13 Effect of Declaration.
Grantor makes no warranties or representations, express or implied, as to the binding effect or
enforceability of all or any portion of this Declaration, or as to the compliance of any of these
provisions with public laws, ordinances and regulations applicable thereto.
12.14 No Representations or Warranties.
No representations or warranties of any kind, express or implied, have been given or made by
Grantor or its agents, consultants or employees in connection with the Property, any Unit, the
Common Area or any Improvements, their physical condition, zoning, compliance with
applicable laws, fitness for intended use, or any subdivision, sale, operation, maintenance, costs
of maintenance, taxes or regulation thereof, except as specifically and expressly set forth in this
Declaration.
12.15 Interpretation.
The provisions of this Declaration shall be liberally construed to effectuate its purpose of
creating a uniform plan for the development and operation of the Property. This Declaration shall
be construed and governed under the laws of the State of Idaho.
12.15.1 Restrictions Construed Together. All of the provisions hereof shall be liberally
construed together to promote and effectuate the fundamental concepts of the development of
the Property as set forth in the recitals of this Declaration.
12.15.2 Restrictions Severable. Notwithstanding the provisions of the foregoing
paragraph 12.15.1, each of the provisions of this Declaration shall be deemed independent and
severable, and the invalidity or partial invalidity of any provision or portion thereof shall not affect
the validity or enforceability of any other provision herein.
12.15.3 Singular Includes Plural. Unless the context requires a contrary construction,
the singular shall include the plural and the plural singular, and the masculine, feminine, or
neuter shall each include the masculine, feminine, and neuter.
12.15.4 Captions. All captions and titles used in this Declaration are intended solely for
convenience or reference and shall not affect that which is set forth in any of the provisions
hereof.
12.16 Successors and Assigns .
All references herein to Grantor, Owners, the Association, or any other Persons shall be
construed to include all successors, assigns, and authorized agents of such Grantor, Owners,
Association, or other Persons.
[Signature Page Follows]
IN WITNESS WHEREOF, the Grantor has executed this Declaration effective as of the date first
set forth above.
MADISON SQUARE LLC
By __________________________
, Member
By___________________________
, Member
STATE OF IDAHO )
County of Madison )
On this ____ day of Nov, in the year 2022, before me, a Notary Public in and for said State,
personally appeared___________, known or identified to me (or proved to me on the oath of
, to be a member of the limited liability company that executed this instrument or the person who
executed this instrument on behalf of said limited liability company, and acknowledged to me
that such limited liability company executed the same.
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EXHIBIT A
Description of the Property
See attached recorded Corrected and Amended Plat