HomeMy WebLinkAboutDeclaration of Covenants - Teton View Estates (PBL Draft) (3)DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
TETON VIEW ESTATES SUBDIVISION
Table of Contents
Page
ARTICLE 1 - RECITALS 1
ARTICLE 2 - DECLARATION 1
ARTICLE 3 - DEFINITIONS 2
ARTICLE 4 - GENERAL AND SPECIFIC RESTRICTIONS 4
4.1 Structures - Generally 4
4.2 Antennae 6
4.3 Insurance Rates 6
4.4 No Further Subdivision 6
4.5 Signs 6
4.6 Nuisances 7
4.7 Exterior Maintenance: Owner’s Obligations 7
4.8 Drainage 7
4.9 Grading 7
4.10 Water Supply Systems 8
4.11 No Hazardous Activities 8
4.12 Unsightly Articles 8
4.13 No Temporary Structures 8
4.14 No Unscreened Boats, Campers, and Other Vehicles 8
4.15 Sewage Disposal Systems 8
4.16 No Mining or Drilling 8
4.17 Energy Devices Outside 9
4.18 Outside Cooking Devices 9
4.19 Vehicles 9
4.20 Animals/Pets 9
4.21 Landscaping 9
4.22 Exemption of Grantor 10
4.23 Conveyances to and from Municipalities 10
4.24 Water Rights Appurtenant to Subdivision Lands 11
4.25 Commencement of Construction 11
ARTICLE 5 - [RESERVED] 11
5.1 [Reserved] 11
ARTICLE 6 - RIGHTS TO COMMON AREAS 11
6.1 Use of Common Area 11
6.2 Designation of Common Area 12
6.3 Delegation of Right to Use 12
6.4 Damages 12
ARTICLE 7 - ASSESSMENTS 12
7.1 Covenant to Pay Assessments 12
7.2 Regular Assessments 13
7.3 Special Assessments. 14
7.4 Limited Assessments 14
7.5 Uniform Rate of Assessment 14
7.6 Assessment Period 14
7.7 Notice and Assessment Due Date 14
7.8 Estoppel Certificate 15
7.9 [Reserved] 15
ARTICLE 8 - ENFORCEMENT OF ASSESSMENT; LIENS 15
8.1 Right to Enforce 15
8.2 Assessment Liens. 15
8.3 Method of Foreclosure 16
8.4 Required Notice 16
8.5 Subordination to Certain Trust Deeds 16
8.6 Rights of Mortgagees 16
ARTICLE 9 - [RESERVED] 17
9.1 [Reserved] 17
ARTICLE 10 - ARCHITECTURAL COMMITTEE 17
10.1 Creation 17
10.2 Grantor’s Right of Appointment 17
10.3 Review of Proposed Construction 17
10.4 Meetings of the Architectural Committee 18
10.5 No Waiver of Future Approvals 18
10.6 Compensation of Members 19
10.7 Inspection of Work 19
10.8 Non-Liability of Architectural Committee Members 19
10.9 Variances 20
10.10 Grantor’s Exemption 20
ARTICLE 11 - ANNEXATION OF ADDITIONAL PROPERTIES 20
11.1 By Grantor 20
11.2 [Reserved] 20
11.3 Rights and Obligations of Owners of Annexed Tracts 20
11.4 Method of Annexation 21
11.5 De-annexation 21
ARTICLE 12 - EASEMENTS 21
12.1 Easements of Encroachment 21
12.2 Easements of Access 21
12.3 Drainage and Utility Easements 22
12.4 Rights and Duties Concerning Utility Easements 22
12.5 Driveway Easements 23
12.6 Disputes as to Sharing of Costs 23
12.7 General Landscape Easement 23
12.8 Overhang Easement 23
12.9 Maintenance and Use Easement Between Walls and Lot Lines 23
12.10 Waterway Easements 23
12.11 Sewer Covenants and Restrictions 24
12.12 Specific Landscape Easement 24
ARTICLE 13 - MISCELLANEOUS 24
13.1 Term 24
13.2 Amendment. 24
13.3 Notices 25
13.4 Enforcement and Non-Waiver. 25
13.5 Interpretation 26
13.6 Successors and Assigns 26
ARTICLE 1 - RECITALS 1
ARTICLE 2 - DECLARATION 1
ARTICLE 3 - DEFINITIONS 2
ARTICLE 4 - GENERAL AND SPECIFIC RESTRICTIONS 4
4.1 Structures - Generally 4
4.2 Antennae 6
4.3 Insurance Rates 6
4.4 No Further Subdivision 6
4.5 Signs 6
4.6 Nuisances 7
4.7 Exterior Maintenance: Owner’s Obligations 7
4.8 Drainage 7
4.9 Grading 7
4.10 Water Supply Systems 8
4.11 No Hazardous Activities 8
4.12 Unsightly Articles 8
4.13 No Temporary Structures 8
4.14 No Unscreened Boats, Campers, and Other Vehicles 8
4.15 Sewage Disposal Systems 8
4.16 No Mining or Drilling 8
4.17 Energy Devices Outside 9
4.18 Outside Cooking Devices 9
4.19 Vehicles 9
4.20 Animals/Pets 9
4.21 Landscaping 9
4.22 Exemption of Grantor 10
4.23 Conveyances to and from Municipalities 10
4.24 Water Rights Appurtenant to Subdivision Lands 11
4.25 Commencement of Construction 11
ARTICLE 5 - [RESERVED] 11
5.1 [Reserved] 11
ARTICLE 6 - RIGHTS TO COMMON AREAS 11
6.1 Use of Common Area 11
6.2 Designation of Common Area 12
6.3 Delegation of Right to Use 12
6.4 Damages 12
ARTICLE 7 - ASSESSMENTS 12
7.1 Covenant to Pay Assessments 12
7.2 Regular Assessments 13
7.3 Special Assessments. 14
7.4 Limited Assessments 14
7.5 Uniform Rate of Assessment 14
7.6 Assessment Period 14
7.7 Notice and Assessment Due Date 14
7.8 Estoppel Certificate 15
7.9 [Reserved] 15
ARTICLE 8 - ENFORCEMENT OF ASSESSMENT; LIENS 15
8.1 Right to Enforce 15
8.2 Assessment Liens. 15
8.3 Method of Foreclosure 16
8.4 Required Notice 16
8.5 Subordination to Certain Trust Deeds 16
8.6 Rights of Mortgagees 16
ARTICLE 9 - [RESERVED] 17
9.1 [Reserved] 17
ARTICLE 10 - ARCHITECTURAL COMMITTEE 17
10.1 Creation 17
10.2 Grantor’s Right of Appointment 17
10.3 Review of Proposed Construction 17
10.4 Meetings of the Architectural Committee 18
10.5 No Waiver of Future Approvals 18
10.6 Compensation of Members 19
10.7 Inspection of Work 19
10.8 Non-Liability of Architectural Committee Members 19
10.9 Variances 20
10.10 Grantor’s Exemption 20
ARTICLE 11 - ANNEXATION OF ADDITIONAL PROPERTIES 20
11.1 By Grantor 20
11.2 [Reserved] 20
11.3 Rights and Obligations of Owners of Annexed Tracts 20
11.4 Method of Annexation 21
11.5 De-annexation 21
ARTICLE 12 - EASEMENTS 21
12.1 Easements of Encroachment 21
12.2 Easements of Access 21
12.3 Drainage and Utility Easements 22
12.4 Rights and Duties Concerning Utility Easements 22
12.5 Driveway Easements 23
12.6 Disputes as to Sharing of Costs 23
12.7 General Landscape Easement 23
12.8 Overhang Easement 23
12.9 Maintenance and Use Easement Between Walls and Lot Lines 23
12.10 Waterway Easements 23
12.11 Sewer Covenants and Restrictions 24
12.12 Specific Landscape Easement 24
ARTICLE 13 - MISCELLANEOUS 24
13.1 Term 24
13.2 Amendment. 24
13.3 Notices 25
13.4 Enforcement and Non-Waiver. 25
13.5 Interpretation 26
13.6 Successors and Assigns 26
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
TETON VIEW ESTATES SUBDIVISION
THIS DECLARATION is made Effective as of [__], 2024, by Teton View Estates LLC, an Idaho limited liability company (“Grantor” and “Class B Member”). All capitalized terms not otherwise
defined in the text hereof are defined in Article 3.
RECITALS
The property subject to this Declaration includes, but is not limited to, the property legally described on Exhibit A attached hereto and made a part hereof by this reference (“Property”).
Grantor intends to develop the Teton View Estates Subdivision in multiple development phases (“Tracts”). Each Tract described on Exhibit A is subject to this Declaration. Any other
property hereafter annexed into the Teton View Estates Subdivision shall be made subject to this Declaration through a Supplemental Declaration. All property made subject to this Declaration
shall be referred to as the “Property.” Unless and until a Supplemental Declaration is filed with the Madison County Recorder’s Office, properties excluded from Exhibit A shall not
be subject to this Declaration.
The purpose of this Declaration is to set forth the basic restrictions, covenants, limitations, easements, conditions, and equitable servitudes (collectively “Restrictions”) that apply
to a Tract. 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.
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:
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 in the Property
or any lot, parcel, or portion thereof;
shall inure to the benefit of every lot, parcel, or portion of the Property and any interest therein; and
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 any Grantor or by any Owner or such Owner’s successors in interest.
Notwithstanding the foregoing, no provision of this Declaration shall be construed as to prevent or limit a Grantor’s right to complete development of the Property and to construct improvements
thereon, nor a Grantor’s right to maintain model homes, 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 a Grantor’s right to post signs incidental to construction, sales, or leasing, nor a Grantor’s right to modify plans for the Property,
all in accordance with any necessary approvals of the City.
DEFINITIONS
“Architectural Committee.” Architectural Committee shall mean the committee created by Grantor pursuant to Article 10 hereof.
“Assessments.” Assessments shall mean those payments required of Owners, including Regular, Special, and Limited Assessments as further defined in this Declaration.
“Board.” Board shall mean the Board of Managers or other governing board or individual, if applicable, of the Grantor.
“Board of Managers.” Board of Managers means the Grantor.
“Building Lot.” Building Lot shall mean one or more lots within a Tract as specified or shown on any Plat and/or by Supplemental Declaration, upon which Improvements may be constructed.
“Certificate.” Certificate shall mean the Certificate of Organization of Grantor or other organizational or charter documents of Grantor.
“City.” City shall mean the City of Rexburg, Idaho.
“Common Area.” Common Area shall mean all real property in which the Grantor holds an interest or which is held or maintained, permanently or temporarily, for the common use, enjoyment,
and benefit of the entire Subdivision and each Owner therein, and shall include, without limitation, all such parcels that are designated as private streets or drives, common open spaces,
common landscaped areas, and waterways. 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.
“Design Guidelines.” Design Guidelines shall mean the construction guidelines approved by the Architectural Committee.
“Grantor or Grantor.” Grantor shall mean Teton View Estates LLC, individually. The terms Grantor shall include successors in interest, or any person or entity to whom the rights under
this Declaration are expressly transferred by either Grantor 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, bicycle paths, curbs, landscaping, signs, lights, mail
boxes, electrical lines, pipes, pumps, ditches, waterways, and fixtures of any kind whatsoever.
“Landscape Easements.” Landscape Easements shall mean any portion of a Building Lot located within the landscape easements designated on the Plat or in a Supplemental Declaration.
This Landscape Easement is in addition to the general landscape easement described in Sections 5.5.2.3 and 12.7 of this Declaration.
“Limited Assessment.” Limited Assessment shall mean a charge against a particular Owner and such Owner’s Building Lot or Unit, directly attributable to the Owner, equal to the cost
incurred by Grantor 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 Building
Lot or Unit in proper repair, including interest thereon as provided in this Declaration or a Supplemental Declaration or for any goods or services provided by Grantor benefiting less
than all Owners.
“Operating Agreement.” Operating Agreement shall mean the Operating Agreement of Grantor.
“Owner.” Owner shall mean the person or other legal entity, including Grantor, holding fee simple interest of record to a Building Lot or Unit which is a part of the Property, and sellers
under executory contracts of sale, but excluding those having such interest merely as security for the performance of an obligation.
“Subdivision.” Subdivision mean the Property (otherwise known as the Teton View Estates Subdivision).
“Person.” Person shall mean any individual, partnership, corporation, or other legal entity.
“Plat.” Plat shall mean any subdivision plat covering 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 lot, parcel, and portion thereof and interest therein, including all water rights associated
with or appurtenant to such property, which are brought within the jurisdiction hereof by Supplemental
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 Grantor which is to be levied against the Building Lot or Unit of and paid by each Owner to Grantor, 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 and replacements or shortages in Regular
Assessments which are authorized and to be paid by each Owner to Grantor, 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 any portion of the Property.
“Tract.” Tract shall mean a defined portion of the Property within which the contemplated development involves a common use or compatible uses, and which may have been designated as
a Tract by this Declaration or a recorded Supplemental Declaration. Each Tract shall contain one or more Building Lots or Units, and may be managed to the extent permitted herein.
“Unit.” Unit shall mean a residential dwelling constructed on a Tract as specified or shown on any Plat and/or by Supplemental Declaration. Multiple Units may be constructed on Building
Lots.
“Waterway.” Waterway shall mean any surface water amenity, including, without limitation, any lake, pond, channel, slough, stream or reservoir, natural or artificial, which is located
on the Property and which is included within or managed as Common Area.
GENERAL AND SPECIFIC RESTRICTIONS
Structures - Generally. All structures are to be designed, constructed and used in such a manner as to promote compatibility between the types of use contemplated by this Declaration.
Use and Size of Dwelling Structure. Except for the Common Areas, all Building Lots shall be used exclusively for residential purposes. The minimum sizes for Units in the Subdivision
may vary depending on the number of Units constructed on the Building Lot, but shall not be less than the sizes set forth on the final Plat recorded with the Madison County Recorder’s
office. These criteria shall apply to all phases. Units shall not be rented or advertised for rent for periods of thirty (30) or fewer days at a time.
Architectural Committee Review. No Improvements which will be visible above ground or which will ultimately affect the visibility of any above ground Improvement shall be built, erected,
placed, or materially altered or removed from the Property unless and until the building plans, specifications, and plot plan or other appropriate plans and specifications have been
reviewed in advance by the Architectural Committee and the same have been approved in writing. The review and approval or disapproval may be based upon the following factors - size,
height, design and style elements, mass and form, topography, setbacks, finished ground elevations, architectural symmetry, drainage, color, materials, including Architectural Committee
approved architectural shingles roofing material, physical or aesthetic impacts on other properties, including Common Areas, artistic conformity to the terrain and the other Improvements
on the Property, and any and all other factors which the Architectural Committee, in its reasonable discretion, deems relevant. Said requirements as to the approval of the architectural
design shall apply only to the exterior appearance of the Improvements. This Declaration is not intended to serve as authority for the Architectural Committee to control the interior
layout or design of residential structures except to the extent incidentally necessitated by use, size, and height restrictions.
Setbacks and Height. No residential or other structure (exclusive of fences and similar structures) shall be placed nearer to the Building Lot lines or built higher than permitted by
the Plat for the Tract in which the Building Lot is located, by any applicable zoning restriction, by any conditional use permit, or by a building envelope designated either by Grantor
or applicable Architectural Committee, whichever is more restrictive.
Accessory Structures. Detached garages and storage sheds shall not be allowed. Patio covers shall be constructed of, and roofed with similar colors and design, as the residential structure
on the applicable Building Lot. Except as approved by the Architectural Committee or the Grantor in the Common Areas, no playhouses, playground equipment, hot tubs, spas, or similar
items shall extend higher than five (5) feet above the finished graded surface of the Building Lot upon which such item(s) are located, unless specifically so allowed by the Architectural
Committee, in its sole discretion. Basketball courts, backboards, pools, pickleball courts, tennis courts and other structures shall not be allowed, except those that may be provided
in Common Areas.
Driveways. All access driveways shall have a wearing surface approved by the Architectural Committee of asphalt, concrete, or other hard surface materials, and shall be properly graded
to assure proper drainage.
Fencing. Fence designs shall not extend into any common green space within the subdivision. All fencing and boundary walls constructed on any Building Lot shall be of compatible style
and material to that of other fencing constructed adjacent to or abutting Common Areas, public and private streets, and shall otherwise be as approved by the Architectural Committee.
Fencing shall not extend higher than six (6) feet above the finished grade surface of the Building Lot or extend past the front setback of the home. All fencing must meet the setback
requirements of City ordinance. Certain entryway, corner and view Building Lots as more particularly set forth in a Supplemental Declaration are restricted from fencing.
Lighting. Exterior lighting, including flood lighting, shall be part of the architectural concept of the Improvements on a Unit or Building Lot. Fixtures, standards, and all exposed
accessories shall be harmonious with building design, and shall be as approved by the Architectural Committee. Lighting shall be restrained in design, and excessive brightness shall
be avoided.
Antennae. All exterior radio antenna, television antenna, satellite dish antenna or other antenna of any type shall be screened by a fence, landscaping or similar structures in accordance
with the Architectural Committee guidelines, except that screening shall not be required where it would unreasonably delay installation or unreasonably increase the cost of installation,
maintenance or use of the antennae, or preclude the reception of an acceptable quality signal. No antennae may be installed prior to construction of a residential improvement upon
a Building Lot.
Insurance Rates. Nothing shall be done or kept on any Unit or Building Lot 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 a Unit or Building Lot which would result in the cancellation of insurance on any property owned or
managed by Grantor or which would be in violation of any law.
No Further Subdivision. No Building Lot may be further subdivided, nor may any easement or other interest therein, unless such subdivision complies with all applicable laws.
Signs. No sign of any kind shall be displayed for public view without the approval of the applicable Architectural Committee, and the City if otherwise so required, except:
such signs as may be used by Grantor in connection with the development of the Property and sale of Units and Building Lots;
temporary signs naming the contractors, the architect, and the lending institution for particular construction operation;
such signs identifying Subdivision, or informational signs, of customary and reasonable dimensions as prescribed by the Architectural Committee 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 or Building Lot advertising
the residence for sale or lease
All signage, including signage for the exceptions listed in (A)-(D), 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 applicable Architectural Committee or Grantor.
Nuisances. No rubbish or debris of any kind shall be placed or permitted to accumulate anywhere upon the Property, including without limitation the Common Area or vacant Building Lots,
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 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 Grantor), flashing lights, or search lights, shall be located, used, or placed on the Property without the prior written approval of
Grantor.
Exterior Maintenance: Owner’s Obligations. No Improvement shall be permitted to fall into disrepair, and each Improvement shall at all times be kept in good condition and repair. In
the event that any Owner shall permit any Improvement, including trees and landscaping, which is the responsibility of such Owner to maintain, to fall into disrepair so as to create
a dangerous, unsafe, unsightly, or unattractive condition, or damages property or facilities on or adjoining their Unit or Building Lot which would otherwise be Grantor’s responsibility
to maintain, Grantor, upon fifteen (15) days prior written notice to the Owner of such property, shall have the right to correct such condition, and to enter upon such Owner’s property
for the purpose of doing so, and such Owner shall promptly reimburse Grantor for the cost thereof. Such cost shall be a Limited Assessment and shall create a lien enforceable in the
same manner as other Assessments set forth in Article 8 of this Declaration. The Owner of the offending property shall be personally liable, and such Owner’s property may be subject
to a mechanic’s lien, for all costs and expenses incurred by Grantor in taking such corrective acts, plus all costs incurred in collecting the amounts due, including attorney’s fees
and costs. Each Owner shall pay all amounts due for such work within ten (10) days after receipt of written demand therefor, or the amounts may, at the option of the Board, be added
to the amounts payable by such Owner as Regular Assessments. Each Owner shall have the remedial rights set forth herein if Grantor fails to exercise its rights within a reasonable
time following written notice by such Owner.
Drainage. There shall be no interference with the established drainage pattern over any portion of the Property, unless an adequate alternative provision is made for proper drainage
and is first approved in writing by the applicable Architectural Committee. For the purposes hereof, “established” drainage is defined as the system of drainage, whether natural or
otherwise, which exists at the time the overall grading of any portion of the Property is completed by Grantor, or that drainage which is shown on any plans approved by the Architectural
Committee, which may include drainage from the Common Area over any Building Lot in the Property.
Grading. The Owner of any Building Lot within the Property in which grading or other work has been performed pursuant to a grading plan approved under applicable provisions of City
Code shall maintain and repair all graded surfaces and erosion prevention devices, retaining walls, drainage structures, means, or devices which are not the responsibility
of the local highway district, Grantor, or other public agency, and plantings and ground cover installed or completed thereon. Such requirements shall be subject to Regular, Special,
and Limited Assessments provided in Article 7 herein, as may be applicable.
Water Supply Systems. No separate or individual water supply system, regardless of the proposed use of the water to be delivered by such system, shall be permitted on any Building Lot
unless such system is designed, located, constructed, and equipped in accordance with the requirements, standards, and recommendations of Grantor and all governmental authorities having
jurisdiction. Grantor or affiliates of Grantor may use the water supply as deemed necessary for temporary or other irrigation purposes.
No Hazardous Activities. No activities shall be conducted on the Property, and improvements constructed on any property which are or might be unsafe or hazardous to any person or property.
Unsightly Articles. No unsightly articles shall be permitted to remain outside any Unit or on any Building Lot so as to be visible from any other portion of the Property. Without limiting
the generality of the foregoing, refuse, garbage, and trash shall be kept at all times in such containers and in areas approved by the applicable Architectural Committee. 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 any Building Lot except within an enclosed
structure or as appropriately screened from view. No vacant residential structures shall be used for the storage of building materials.
No Temporary Structures. No house trailer, mobile home, tent (other than for short term individual use which shall not exceed one (1) week unless approved by Grantor), shack or other
temporary building, improvement, or structure shall be placed upon any portion of the Property, except temporarily as may be required by construction activity undertaken on the Property.
Also excepted from this requirement is any sales office established for the Property.
No Unscreened Boats, Campers, and Other Vehicles. No boats, trailers, campers, all-terrain vehicles, motorcycles, recreational vehicles, bicycles, dilapidated or unrepaired and unsightly
vehicles, or similar equipment shall be placed upon any portion of the Property (including, without limitation, streets, parking areas, and driveways) unless the same are enclosed by
a structure concealing them from view in a manner approved by the Architectural Committee. To the extent possible, garage doors shall remain closed at all times.
Sewage Disposal Systems. No individual sewage disposal system shall be used on the Property. Each Owner shall connect the appropriate facilities on such Owner’s Unit or Building Lot
to the City Sewer System and pay all charges assessed therefor.
No Mining or Drilling. No portion of the Property shall be used for the purpose of mining, quarrying, drilling, boring, or exploring for or removing water, oil, gas, or other hydrocarbons,
minerals, rocks, stones, sand, gravel or earth. This paragraph 4.16 shall not
prohibit exploratory drilling or coring which is necessary to construct a residential structure or Improvements.
Energy Devices Outside. No energy production devices, including, but not limited to, generators of any kind and solar energy devices, shall be constructed or maintained on any portion
of the Property without the written approval of the applicable Architectural Committee, except for heat pumps shown in the plans approved by the Architectural Committee. This paragraph 4.17
shall not apply to passive solar energy systems incorporated into the approved design of a residential structure.
Outside Cooking Devices. All outside cooking devices, including, but not limited to, grills, griddles, smokers and pizza ovens, shall be operated in a safe manner and shall not be operated
within ten (10) feet from building and structure walls or on combustible decks or patios, so as to minimize the risk of fire or heat damage to any building or structure on the Property
when in operation. The operation of outside cooking devices also shall be subject to any safety rules adopted by Grantor.
Vehicles. The use of all vehicles, including, but not limited to, trucks, automobiles, bicycles, motorcycles, snowmobiles, aircraft, and boats, shall be subject to all community rules,
which may prohibit or limit the use thereof within the Subdivision. No on-street parking shall be permitted except where expressly designated for parking use. Vehicles parked on a
driveway shall not extend into any sidewalk or bike path or pedestrian path. No motorized vehicle or device shall be permitted on any Waterway unless such vehicle is engaged in an
emergency procedure.
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 4.19
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 the 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. No dog or cat shall be allowed in
any Waterway. The construction of dog runs or other pet enclosures shall be subject to applicable Architectural Committee approval, shall be appropriately screened, and shall be maintained
in a sanitary condition. Dog runs or other pet enclosures shall be placed a minimum of ten (10) feet from the side and twenty-five (25) feet from the rear Building Lot line, shall
not be placed in any front yard of a Building Lot, and shall be screened from view so as not to be visible from the Common Area or an adjacent Building Lot. No animal breeding operations
shall be permitted on the Property.
Landscaping. The Owner of any Building Lot shall sod and landscape such Building Lot in conformance with the landscape plan approved by Grantor, and as approved by the Architectural
Committee. All landscaping shall be planted within thirty (30) days after said
dwelling structure is completed, weather permitting. But if Grantor or an affiliate of Grantor constructs the dwelling structure, only the front yard of the Building Lot is required
to be landscaped within thirty (30) days of substantial completion of the dwelling structure. The Owner is then responsible for completing the balance of the Building Lot landscaping
within ninety (90) days after the Building Lot is conveyed to the first Owner of the Building Lot. Additionally, Grantor may grant extensions of the landscaping deadlines to any party
for up to ninety (90) days. Prior to construction of Improvements, the Owner shall provide adequate irrigation and maintenance of existing trees and landscaping, shall control weeds,
and maintain the Owner’s property in a clean and safe condition free of debris or any hazardous condition. All trees located on common Building Lot lines shall be the joint responsibility
of the adjoining Building Lot owners.
Following commencement of any construction of any Improvement, construction shall be diligently pursued and completed as soon as reasonably practical. All landscaping on a Building
Lot, unless otherwise specified by the applicable Architectural Committee, shall be completed as soon as reasonably practical following completion of the residential structure on such
Building Lot.
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 owned by Grantor, 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 so long as any Building Lot in the Property remains unsold. 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 work and disposing of the same by sales, lease or
otherwise. Grantor shall have the right at any time prior to acquisition of title to a Building Lot by a purchaser from Grantor to grant, establish, and/or reserve on that Building
Lot, 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 lots and Units within
the Development. Grantor need not seek or obtain Architectural Committee approval of any Improvement constructed or placed by Grantor or an affiliate of Grantor on any portion of the
Property owned by Grantor or an affiliate of Grantor. 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.
Conveyances to and from Municipalities. The Board shall have the power to convey any portion of the Common Area in Subdivision to the City, the County of Madison, the State of Idaho,
the United States of America, or any political subdivision thereof. The Board shall also have the power to receive a conveyance of any property interest from the above-
referenced entities, or any other individual or entity, and to hold such property interest as Common Area.
Water Rights Appurtenant to Subdivision Lands. No later than one hundred twenty (120) days after the date of the recording of this Declaration, Grantor shall transfer from the Property
subject to this Declaration, and within the boundaries of an irrigation entity, as defined in said Section 31 3805, Idaho Code, all water rights and assessment obligations appurtenant
to the Property to Grantor.
Commencement of Construction. Any owner of a Building Lot shall, within a period of one (1) year following the date of purchase of a Building Lot from Grantor, commence the construction
of a dwelling structure in compliance with the restrictions herein, and such construction shall be completed within six (6) months thereafter. The term “Commence the construction,”
as used in this paragraph 4.24, shall require actual physical construction activities upon such dwelling structure upon such Building Lot. In the event such Owner shall fail or refuse
to commence the construction of a dwelling structure within said one (1) year period, Grantor may, at Grantor’s option, following the expiration of said one (1) year period, repurchase
said Building Lot from such Owner or the then Owner of such Building Lot at a repurchase price equivalent to the money actually paid to Grantor, less any amount equivalent to ten (10)
percent thereof. In the event Grantor shall exercise Grantor’s option to repurchase such Building Lot, upon tender of said repurchase price, Owner or the then Owner of such Building
Lot shall make, execute, and deliver to Grantor a deed reconveying said Building Lot, free and clear of all liens, which deed shall be binding upon all persons who may, at any time
hereafter, own or claim any right, title, or interest in such Building Lot, and the successors in title thereto, whether acquired by voluntary act or through operation of law.
[Reserved]
[Reserved]. Reserved.
RIGHTS TO COMMON AREAS
Use of Common Area. Every Owner shall have a right to use each parcel of the Common Area, which right shall be appurtenant to and shall pass with the title to every Building Lot and
Unit, subject to the following provisions:
The right of Grantor holding or controlling such Common Area to levy and increase Assessments for the maintenance, repair, management and operation of improvements on the Common Area;
The right of Grantor to suspend the voting rights and rights to use of, or interest in, the Common Area recreational facilities (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 Building Lot or Unit remains unpaid, and for a period not to exceed
sixty (60) days for any infraction of the community rules; and,
The right of Grantor 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 Certificate and the Operating Agreement.
The right of Grantor to prohibit the construction of structures or Improvements on all Common Areas which interfere with the intended use of such areas as private street, cul-de-sacs
and walkways.
The right of Grantor to protect wildlife habitat.
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.
Delegation of Right to Use. Any Owner may delegate, in accordance with the respective Operating Agreement and community rules of Grantor, 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 or contract purchasers who reside on such Owner’s Building Lot or Unit. Only Grantor 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.
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 or contract purchaser, or such Owner’s family and guests, both minor and adult. In the case of joint ownership of a Building Lot or Unit, the liability of such Owners shall
be joint and several. The cost of correcting such damage shall be a Limited Assessment against the Building Lot or Unit and may be collected as provided herein for the collection of
other Assessments.
ASSESSMENTS
Covenant to Pay Assessments. By acceptance of a deed to any portion of the Property, each Owner of such property hereby covenants and agrees to pay when due all Assessments or charges
made by Grantor, including all Regular, Special, and Limited Assessments and charges made against such Owner pursuant to the provisions of this Declaration or other applicable instrument.
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 land and shall be a continuing lien upon the property against which each such Assessment or charge is made.
Assessment is Personal Obligation. Each such Assessment, together with interest, costs and reasonable attorney’s fees, shall also be the personal obligation of the Owner of such property
beginning with the time when the Assessment 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 such Owner remains an Owner.
Regular Assessments. All Owners are obligated to pay Regular Assessments to the treasurer of Grantor on a schedule of payments established by the Board.
Purpose of Regular Assessments. The proceeds from Regular Assessments are to be used to pay for all costs and expenses incurred by Grantor, 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 Areas, including all Improvements located on such areas owned and/or managed and maintained by Grantor, 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 Grantor that must be replaced and maintained on a regular basis
(collectively “Expenses”).
Computation of Regular Assessments. Grantor 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 Building Lot or Unit occurred for the purposes of Grantor’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 Grantor.
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 (1) year.
Amounts Paid by Owners. The Board can require, in its discretion or as provided in the Certificate or Operating Agreement, 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:
As to Grantor’s Regular Assessment, each Owner shall be assessed and shall pay an amount computed by multiplying Grantor’s total advance estimate of Expenses by the fraction produced
by dividing the Building Lots and Units in the applicable Tract attributable to the Owner by the total number of Building Lots and Units in such Tract.
Up until two (2) years following the date of the first sale of a Building Lot or Unit in a particular Tract of the development, the Grantor shall be assessed the shortfall (if any) for
that Tract of the development. The Grantor agrees to pay the cost of any shortfall in order to properly maintain the Property during the development of each Tract. After two (2) years
from the date of the first sale of a Building Lot or Unit in a particular Tract, the Grantor shall be assessed the Regular Assessment (defined in Section 7.2.3.1) for each unsold Building
Lot and Unit remaining in the respective Tract. This reduced assessment is in return for the Grantor paying the maintenance obligations for the Common Area prior to the acceptance
of these obligations by a homeowner’s association.
Special Assessments.
Purpose and Procedure. In the event that Grantor shall determine that its respective Regular Assessment for a given calendar year is or will be inadequate to meet the Expenses of Grantor
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 portions of the Property within its jurisdiction which shall be computed in the same manner as Regular Assessments. Grantor shall, in its discretion, determine the schedule
under which such Special Assessment will be paid.
Consistent Basis of Assessment. Every Special Assessment levied by and for Grantor shall be levied and paid upon the same basis as that prescribed for the levying and payment of Regular
Assessments for Grantor.
Limited Assessments. Notwithstanding the above provisions with respect to Regular and Special Assessments, a Board may levy a Limited Assessment against an Owner as a remedy to reimburse
Grantor for costs incurred in bringing the Owner and/or such Owner’s Building Lot or Unit or restricted Common Area into compliance with the provisions of the governing instruments
for the Property, or for otherwise providing any goods or services benefiting less than all Owners or such Owners’ Building Lots or Units.
Uniform Rate of Assessment. Unless otherwise specifically provided herein, Regular and Special Assessments shall be fixed at a uniform rate per Building Lot or Unit for all Owners.
Assessment Period. Unless otherwise provided in this Declaration, the Certificate or Operating Agreement, the Assessment period shall commence on January 1st of each year and terminate
December 31st of each year. The first Assessment shall be pro-rated according to the number of months remaining in the fiscal year and shall be payable in equal monthly installments.
Notice and Assessment Due Date. Ten (10) days prior written notice of Regular and Special Assessments shall be sent to the Owner of every Building Lot and Unit subject thereto, and
to any person in possession of such Building Lot or 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 of Special Assessment shall become delinquent if not paid within ten (10)
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 Grantor. Grantor may bring an action against the delinquent Owner and may foreclose the lien against such Owner’s Building Lot or 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 Areas, or by lease or abandonment of such Owners
Building Lot or Unit.
Estoppel Certificate. Grantor, 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 Grantor, 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 Building Lot
or Unit. Reliance on such certificate may not extend to any default as to which the signer shall have had no actual knowledge.
[Reserved]. Reserved.
ENFORCEMENT OF ASSESSMENT; LIENS
Right to Enforce. Grantor has the right to collect and enforce its Assessments pursuant to the provisions hereof. Each Owner of a Building Lot or Unit, upon becoming an Owner of such
Building Lot or 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. 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.
Assessment Liens.
Creation. There is hereby created a claim of lien with power of sale on each and every Building Lot and Unit to secure payment of any and all Assessments levied against such Building
Lot or Unit pursuant to this Declaration together with interest thereon at the maximum rate permitted by law and all costs of collection which may be paid or incurred by Grantor making
the Assessment in connection therewith, including reasonable attorney’s fees. All sums assessed in accordance with the provisions of this Declaration shall constitute a lien on such
respective Building Lot or 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 notice of delinquency and claim of lien except for tax liens for real property taxes on any Building Lot or Unit and Assessments on any Building Lot or Unit
in favor of any municipal or other governmental assessing body which, by law, would be superior thereto.
Claim of Lien. Upon default of any Owner in the payment of any Regular, Special or Limited Assessment issued hereunder, Grantor 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 Building Lot(s) or 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 notice and claim of lien, but any number of defaults may be included within a single notice and claim of lien. Upon payment to Grantor of such delinquent sums and charges in
connection therewith or other satisfaction thereof, Grantor shall cause to be recorded a further notice stating the satisfaction of relief of such delinquent sums and charges. Grantor
may demand and receive the cost of preparing and recording such release before recording the same.
Method of Foreclosure. Such lien may be foreclosed by appropriate action in court or by sale by Grantor establishing the Assessment, 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 Grantor, or any title company authorized to do business in Idaho as trustee for the purpose of conducting such power of sale or foreclosure.
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 notice of delinquency
and 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 Building Lot(s) or Unit(s) described in such notice of delinquency and claim of lien, and to the person in possession
of such Building Lot(s) or Unit(s) and a copy thereof is recorded by Grantor in the Office of the Madison County Recorder.
Subordination to Certain Trust Deeds. The lien for the Assessments provided for herein in connection with a given Building Lot shall not be subordinate to the lien of any deed of trust
or mortgage except the lien of a deed of trust or mortgage given and made in good faith and for value that is of record as an encumbrance against such Building Lot or 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 mortgagee who acquires title to a Building Lot or Unit, the
sale or transfer of any Building Lot or 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.
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 Building Lot or 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 Building Lot or Unit shall remain subject to this Declaration as amended.
[RESERVED]
[Reserved]. Reserved.
ARCHITECTURAL COMMITTEE
Creation. Within thirty (30) days of the date on which the Grantor first conveys a Building Lot or Unit to an Owner, Grantor shall appoint three (3) individuals to serve on the Architectural
Committee (“Architectural Committee”). Each member shall hold office until such time as such member has resigned or has been removed, or such member’s successor has been appointed,
as provided herein. A member of the Architectural Committee need not be an Owner. Members of the Architectural Committee may be removed by the person or entity appointing them at
any time without cause.
Grantor’s Right of Appointment. At any time, and from time to time, prior to the time that Grantor ceases to be a Class B Member, Grantor shall have the exclusive right to appoint and
remove all members of the Architectural Committee. At all other times, Grantor shall have the right to appoint and remove all members of the Architectural Committee. If a vacancy
on the Architectural Committee occurs and a permanent replacement has not yet been appointed, Grantor, as the case may be, may appoint an acting member to serve for a specified temporary
period not to exceed one (1) year.
Review of Proposed Construction. The Architectural Committee shall consider and act upon any and all proposals or plans and specifications submitted for its approval pursuant to this
Declaration and perform such other duties as from time to time shall be assigned to it by the Board, including the inspection of construction in progress to assure its conformance with
plans approved by the Architectural Committee. The Board shall have the power to determine, by rule or other written designation consistent with this Declaration, which types of Improvements
shall be submitted for Architectural Committee review and approval. The Architectural Committee shall have the power to hire an architect, licensed with the State of Idaho, to assist
the Architectural Committee in its review of proposals or plans and specifications submitted to the Architectural Committee.
Conditions on Approval. The Architectural Committee may condition its approval of proposals or plans and specifications upon such changes therein as it deems appropriate, and/or upon
the agreement of the Applicant to reimburse Grantor for the cost of maintenance, and may require submission of additional plans and specifications or other information before approving
or disapproving material submitted.
Architectural Committee Rules and Fees. The Architectural Committee also may establish rules and/or guidelines setting forth procedures for and the required content of the applications
and plans submitted for approval. Such rules may require a fee to accompany each application for approval or additional factors that it will take into
consideration in reviewing submissions. The Architectural Committee shall determine the amount of such fee in a reasonable manner. Such fees shall be used to defray the costs and expenses
of the Architectural Committee, including the cost and expense of hiring an architect licensed by the State of Idaho, as provided above, or for such other purposes as established by
the Board, and such fee shall be refundable to the extent not expended for the purposes herein stated. If plans submitted are the same or substantially similar to plans previously
approved by the Architectural Committee, fees may be reduced for such application approvals. Such rules and guidelines may establish, without limitation, specific rules and regulations
regarding design and style elements, landscaping, and fences and other structures such as animal enclosures as well as special architectural guidelines applicable to Building Lots located
adjacent to public and/or private open space.
Detailed Plans. The Architectural Committee may require such detail in plans and specifications submitted for its review as it deems proper, including, without limitation, floor plans,
site plans, landscape plans, drainage plans, elevation drawings, and descriptions or samples of exterior material and colors. Until receipt of such details, the Architectural Committee
may postpone review of any plan submitted for approval.
Architectural Committee Decisions. Decisions of the Architectural Committee and the reasons therefor shall be transmitted by the Architectural Committee to the Applicant at the address
set forth in the application for approval within twenty (20) days after filing all materials required by the Architectural Committee. Any materials submitted pursuant to this Article 10
shall be deemed approved unless written disapproval by the Architectural Committee shall have been mailed to the Applicant within twenty (20) days after the date of filing said materials
with the Architectural Committee. The Architectural Committee shall approve proposals or plans and specifications submitted for its approval only if it deems that the construction,
alterations or additions contemplated thereby in the locations indicated will not be detrimental to the habitat of the Common Areas, or appearance of the surrounding area of the Property
as a whole, that the appearance of any structure affected thereby will be in harmony with the surrounding structures, and that the upkeep and maintenance thereof will not become a burden
on Grantor.
Meetings of the Architectural Committee. The Architectural Committee shall meet from time to time as necessary to perform its duties hereunder. The Architectural Committee may from
time to time by resolution unanimously adopted in writing, designate an Architectural Committee representative (who may, but need not be, one of its members) to take any action or perform
any duties for and on behalf of the Architectural Committee, except the granting of variances pursuant to paragraph 10.9. In the absence of such designation, the vote of any two (2)
members of the Architectural Committee, or the written consent of any two (2) members of the Architectural Committee taken without a meeting, shall constitute an act of the Architectural
Committee.
No Waiver of Future Approvals. The approval of the Architectural Committee of any proposals or plans and specifications or drawings for any work done or proposed, or in connection with
any other matter requiring the approval and consent of the Architectural Committee, shall not be deemed to constitute a waiver of any right to withhold approval or
consent as to any similar proposals, plans and specifications, drawings or matter whatever subsequently or additionally submitted for approval or consent.
Compensation of Members. The members of the Architectural Committee shall receive no compensation for services rendered, other than reimbursement for expenses incurred by them in the
performance of their duties hereunder and except as otherwise agreed by the Board.
Inspection of Work. Inspection of work and correction of defects therein shall proceed as follows:
Upon the completion of any work for which approved plans are required under this Article 10, the Owner shall give written notice of completion to the Architectural Committee.
Within sixty (60) days thereafter, the Architectural Committee or its duly authorized representative may inspect such Improvement. If the Architectural Committee finds that such work
was not done in substantial compliance with the approved plans, it shall notify the Owner in writing of such noncompliance within such sixty (60) day period, specifying the particular
noncompliance, and shall require the Owner to remedy the same.
If upon the expiration of thirty (30) days from the date of such notification, or any longer time the Architectural Committee determines to be reasonable, the Owner shall have failed
to remedy such noncompliance, the Architectural Committee shall notify the Board in writing of such failure. Upon notice and hearing, as provided in the Operating Agreement, the Board
shall determine whether there is a noncompliance and, if so, the nature thereof and the estimated cost of correcting or removing the same. If a noncompliance exists, the Owner shall
remedy or remove the same within a period of not more than forty-five (45) days from the date of the announcement of the Board ruling unless the Board specifies a longer time as reasonable.
If the Owner does not comply with Board ruling within such period, the Board, at its option, may either remove the non-complying improvement or remedy the noncompliance, and the Owner
shall reimburse Grantor, upon demand, for all expenses incurred in connection therewith. If such expenses are not promptly repaid by the Owner to Grantor, the Board shall levy a Limited
Assessment against such Owner for reimbursement pursuant to this Declaration.
If for any reason the Architectural Committee fails to notify the Owner of any noncompliance with sixty (60) days after receipt of the written notice of completion from the Owner, the
work shall be deemed to be in accordance with the approved plans.
Non-Liability of Architectural Committee Members. Neither the Architectural Committee nor any member thereof, nor its duly authorized Architectural Committee representative, shall be
liable to Grantor, or to any Owner or Grantor for any loss, damage, or injury arising out of or in any way connected with the performance of the Architectural Committee’s duties hereunder,
unless due to the willful misconduct or bad faith of the Architectural Committee. The Architectural Committee shall review and approve or disapprove all plans submitted to it for any
proposed improvement, alteration or addition, solely on the basis
of aesthetic considerations and the overall benefit or detriment which would result to the immediate vicinity and to the Property generally. The Architectural Committee shall take into
consideration the aesthetic aspects of the architectural designs, placement of building, landscaping, color schemes, exterior finishes and materials and similar features, but shall
not be responsible for reviewing, nor shall its approval of any plan or design be deemed approval of any plan or design from the standpoint of structural safety or conformance with
building or other codes.
Variances. The Architectural Committee may authorize variances from compliance with any of the architectural provisions of this Declaration, including restrictions upon height, size,
floor area, or placement of structures, or similar restrictions, when circumstances such as topography, natural obstructions, hardship, aesthetic, or environmental considerations may
require. However, no variances will be granted for construction of structures or Improvements, including without limitation manicured lawns, in the Common Areas. Such variances must
be evidenced in writing, must be signed by at least two (2) members of the Architectural Committee, and shall become effective upon recordation in the office of the county Recorder
of Madison County. If such variances are granted, no violation of the covenants, conditions or restrictions contained in this Declaration shall be deemed to have occurred with respect
to the matter for which the variance was granted. The granting of such a variance shall not operate to waive any of the terms and provisions of this Declaration for any purpose except
as to the particular Building Lot or Unit and particular provision hereof covered by the variance, nor shall it affect any way the Owner’s obligation to comply with all governmental
laws and regulations affecting such Owner’s use of the Building Lot or Unit, including but not limited to zoning ordinances or requirements imposed by any governmental or municipal
authority.
Grantor’s Exemption. Any and all Improvements constructed by Grantor on or to the Property are not subject to review and approval by the Architectural Committee.
ANNEXATION OF ADDITIONAL PROPERTIES
By Grantor. Grantor intends to develop the Property and may, in Grantor’s sole discretion, deem it desirable to annex some or all of other properties to the Property covered by this
Declaration. Tracts may be annexed to the Property and brought within the provisions of this Declaration as provided herein by Grantor, its successors or assigns, at any time, and
from time to time, without the approval of any Owner or Grantor. The use and development of such additional Tracts shall conform to all applicable land use regulations, as such regulations
are modified by variances.
[Reserved]. Reserved.
Rights and Obligations of Owners of Annexed Tracts. Subject to the provisions hereof, upon the recording of a Supplemental Declaration as to any Tract all provisions contained in the
Declaration shall apply to the Tract in the same manner as if it were originally covered by this Declaration, subject to such modifications, changes and deletions as are specifically
provided in such Supplemental Declaration, such Tract shall be treated for all purposes as a Tract as defined above. The Owners of lots located in the Tracts shall become
liable for their appropriate share of Assessments. Title to the Common Areas which are to be owned and managed by Grantor within said Tracts shall be conveyed to Grantor, free and clear
of any and all encumbrances and liens, subject to reservations, easements, covenants, conditions and restrictions then of record including those set forth in this Declaration or any
Supplemental Declaration applicable to such Tracts.
Method of Annexation. The addition of a Tract to the Property authorized under Sections 11.1 and 11.2 shall be made by filing of record a Supplemental Declaration or other similar instrument
with respect to the Tract, which shall be executed by Grantor or the Owner thereof and which shall annex such property to the Property. Thereupon each Tract shall be part of the Property,
shall be subject to this Declaration and encompassed within the general plan and scheme hereof as modified by such Supplemental Declaration, and shall be subject to the functions, powers,
and jurisdiction of Grantor established for the area encompassing such Tract. Such Supplemental Declaration or other appropriate document may contain such additions, modifications
or deletions as may be deemed by Grantor or the Owner thereof desirable to reflect the different character, if any, of the Tract, or as Grantor or such Owner may deem appropriate in
the development of the Tract. If any Tract is created, Grantor shall have the authority to levy Assessments against the Owners located within such Tract, and Grantor shall have the
duty to maintain additional Common Area located within the Tract if so specified in any Supplemental Declaration.
De-annexation. Grantor may delete all or a portion of the Property, including previously annexed Tracts, from the Property and from coverage of this Declaration so long as Grantor is
the owner of all such Tracts and provided that a Supplemental Declaration of Deletion of Property is recorded in the Office of the Madison County Recorder in the same manner as a Supplemental
Declaration of annexation.
EASEMENTS
Easements of Encroachment. There shall be reciprocal appurtenant easements of encroachment as between each Building Lot or Unit and such portion or portions of the Common Area adjacent
thereto or as between adjacent Building Lots and 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 a structure on any Building Lot or Unit is partially or totally destroyed, and then repaired or rebuilt, the owners of each Building Lot and Unit
agree that minor encroachments over adjoining Building Lots or Units that existed prior to the encroachment may be reconstructed pursuant to the easement granted by this paragraph 12.1
Easements of Access. All Owners of Building Lots or Units will have a perpetual easement for access, ingress and egress over the Common Area, including but not limited to the private
streets, cul-de-sacs and walkways. Such easements shall run with the land,
and may be used by Grantor, and by all Owners, their guests, tenants and invitees, residing on or temporarily visiting the Property, for pedestrian walkways, vehicular access and such
other purposes reasonably necessary for the use and enjoyment of a Building Lot, Unit or Common Area.
Drainage and 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
Building Lots or Units for installation and repair of utility services, for drainage of water over, across and upon adjacent Building Lots, and Common Areas, resulting from the normal
use of adjoining Building Lots, Units or Common Areas, and for necessary maintenance and repair for any improvement including fencing, retaining walls, lighting facilities, mailboxes
and sidewalk abutments, trees, and landscaping. 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 Grantor the right to grant additional easements and rights-of-way over the Property and/or a Tract, as appropriate, to the Property until
close of escrow for the sale of the last Building Lot or Unit in the Property to a purchaser.
Improvement of Drainage and Utility Easement Areas. The owners of Building Lots and Units are hereby restricted and enjoined from constructing any Improvements upon any drainage or
utility easement areas as shown on the Plat or otherwise designated in any recorded document which would interfere with or prevent the easement from being used for such purpose; provided,
however, that the Owner of such Building Lot or Unit and the Grantor or designated entity with regard to the Landscaping Easement described in this Article 12, shall be entitled to
install and maintain landscaping on such easement areas, and also shall be entitled to build and maintain fencing on such easement areas subject to approval by Grantor and/or the Architectural
Committee, so long as the same would not interfere with or prevent the easement areas from being used for their intended purposes; provided, that any damage sustained to improvements
on the easement areas as a result of legitimate use of the easement areas shall be the sole and exclusive obligation of the Owner of the Building Lot or Unit whose Improvements were
so damaged.
Rights and Duties Concerning Utility Easements. The rights and duties of the Owners of the Building Lots and Units within the Property with respect to utilities shall be governed by
the following:
Wherever utility house connections are installed within the Property, which connections or any portions thereof lie in or upon Building Lots or Units owned by an Owner other than the
Owner of the Building Lot or Unit served by the connections, the Owner of the Building Lot or 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 Building Lot or Unit or to have their agent enter upon any Building Lot or 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.
Whenever utility house connections are installed within the Property, which connections serve more than one Building Lot or Unit, the Owner of each Building Lot or 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 Building Lot or Unit.
Driveway Easements. Whenever a driveway is installed within the Property which in whole or in part lies upon a Building Lot owned by an Owner other than the Owner of the Building Lot
served by such driveway, or whenever a driveway is installed to serve more than one Building Lot or Unit, the Owner of each Building Lot and Unit served or to be served by such driveway
shall be entitled to full use and enjoyment of such other Building Lot and Unit as required to service such Owner’s Building Lot or Unit or to repair, replace, or maintain such driveway.
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 driveways, or with respect to the sharing
of the cost therefor, upon written request of one of such Owners addressed to Grantor, 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.
General Landscape Easement. An easement is hereby reserved to Grantor, its contractors and agents, to enter those portions of Building Lots, for the purpose of installing, maintaining,
replacing, and restoring exterior landscaping, and natural vegetation and habitat. Such landscaping activity shall include, by way of illustration and not of limitation, the mowing
of lawns, irrigation, sprinkling, tree and shrub trimming and pruning, walkway improvement, seasonal planting, and such other landscaping activities within the Property as Grantor shall
determine to be necessary from time to time.
Overhang Easement. There shall be an exclusive easement appurtenant to each Building Lot and Unit over the Common Areas for overhanging eaves, and for any projections from the buildings,
which projections shall not extend beyond the save line and shall be consistent with all building codes.
Maintenance and Use Easement Between Walls and Lot Lines. Whenever the wall of a structure, or a fence or retaining wall legitimately constructed on a Building Lot under plans and specifications
approved by the Architectural Committee is located within five (5) feet of the lot line of such Building Lot, the Owner of such Building Lot is hereby granted an easement over and on
the adjoining Building Lot (not to exceed five (5) feet from the Building Lot line) for purposes of maintaining and repairing such wall or fence and eaves or other overhangs, and the
Owner of such adjoining Building Lot is hereby granted an easement for landscaping purposes over and on the area lying between the lot line and such structure or fence so long as such
use does not cause damage to the structure or fence.
Waterway Easements. Grantor hereby reserves for the benefit of Grantor an easement for all Waterways and related pipes, pumps and other equipment over, across and
under all Building Lots, Units and Common Areas, to the extent reasonably required to maintain any water system installed by Grantor on the Property or pursuant to plans and specifications
approved by the Architectural Committee. Any relocation of the water lines installed as a part of such system shall not be undertaken in any way which interrupts the flow of water
through the system or damages the system in any other fashion. Grantor reserves the right to make any reconfiguration of any Waterway which it determines, in its own discretion, to
be necessary, expedient or desirable, provided, however, that nothing herein shall reserve unto Grantor the right to take any action which would disturb, encroach upon, or endanger
the foundation of any building, nor shall Grantor take any action which would materially alter any Waterway’s proximity to improved property abutting such Waterways.
Sewer Covenants and Restrictions. All Building Lots and Units within the Property shall be subject to and restricted by the following covenants and restrictions:
A monthly sewer charge must be paid after connecting to the City public sewer system, according to the ordinances and laws of City.
The Owner of the Building Lot or Unit shall submit to inspection by either the Department of Public Works or the Department of Building whenever a Building Lot or Unit is to be connected
to the City’s sewage system.
The Grantor shall have the right and power to bring all actions against the Owner of the Property conveyed or any part thereof for the collection of any charges herein required and to
enforce the conditions herein stated. This covenant shall run with the land.
Specific Landscape Easement. Grantor hereby reserves for the benefit of Grantor a perpetual Landscape Easement. Such easement shall allow Grantor to install and maintain the berms,
retaining walls, fences, and landscaping within the area defined as the Landscape Easement.
MISCELLANEOUS
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 December 31, 2103, unless amended as herein provided. [Reserved].
Amendment.
By Grantor. Except as provided in paragraph 13.3 below, until the recordation of the first deed to a Building Lot or Unit in the Property recorded after the date of recording of this
Declaration, the provisions of this Declaration may be amended, modified, clarified, supplemented, added to (collectively, “amendment”) or terminated by Grantor by recordation of a
written instrument setting forth such amendment or termination. Any amendment affecting only a particular Tract may be made by Grantor by an amendment to this Declaration at any time
up to the recordation of the first deed to a Building Lot or Unit in such
Tract after the date of recording of this Declaration. Upon the creation of a homeowners’ association, Grantor shall amend this Declaration to account for such homeowners’ association.
By Owners. [Reserved].
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 properties 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 property which existed prior to the said amendment.
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 to Grantor. Such address may be changed from time to time by notice in writing to Grantor, as provided in this paragraph 13.3.
Enforcement and Non-Waiver.
Right of Enforcement. Except as otherwise provided herein, any Owner of any Building Lot or Unit shall have the right to enforce any or all of the provisions hereof against any property
within the Property and Owners thereof.
Violations and Nuisances. The failure of any Owner of a Building Lot or Unit to comply with any provision hereof, or with any provision of the Certificate or Operating Agreement of
Grantor, is hereby declared a nuisance and will give rise to a cause of action in the Grantor or any Owner of Building Lot(s) or Unit(s) within the Property for recovery of damages
or for negative or affirmative injunctive relief or both. However, any other provision to the contrary notwithstanding, only Grantor or a duly authorized agent may enforce by self-help
any of the provisions hereof and only if such self-help is preceded by reasonable notice to the Owner.
Violation of Law. Any violation of any state, municipal, or local law, ordinance, or regulation pertaining to the ownership, occupation or use of any property within the Property 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.
Remedies Cumulative. Each remedy provided herein is cumulative and not exclusive.
Non-Waiver. The failure to enforce any of the provisions herein at any time shall not constitute a waiver of the right to enforce any such provision.
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.
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.
Restrictions Severable. Notwithstanding the provisions of the foregoing paragraph 13.5.1, 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.
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.
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.
Successors and Assigns. All references herein to Grantor, Owners or person shall be construed to include all successors, assigns, partners, and authorized agents of such Grantor, Owners,
or person.
[Signature Page Follows]
IN WITNESS WHEREOF, the Grantor has executed this Declaration effective as of the date first set forth above.
[Add appropriate acknowledgment]
EXHIBIT A
Legal Description of the Property