HomeMy WebLinkAboutCC&Rs 6.23.25 - 25-00399 - Rosewood Townhomes - 52 N 3rd W - Plat (1)
DECLARATION
OF
COVENANTS, CONDITIONS, AND RESTRICTIONS
FOR
ROSEWOOD TOWNHOME OWNERS ASSOCIATION
A Planned Development
in
Madison County
TABLE OF CONTENTS
RECITALS 1
ARTICLE I. DEFINITIONS 1
ARTICLE II. PROJECT DESCRIPTION 5
ARTICLE III. MEMBERSHIP AND VOTING RIGHTS 6
ARTICLE IV. EASEMENTS AND RIGHTS IN COMMON AREAS 6
ARTICLE V. BUDGET AND ASSESSMENTS 8
ARTICLE VI. DUTIES AND POWERS OF THE ASSOCIATION 14
ARTICLE VII. MAINTENANCE 17
ARTICLE VIII. INSURANCE 19
ARTICLE IX. USE RESTRICTIONS 22
ARTICLE X. ARCHITECTURAL CONTROLS 24
ARTICLE XI. ENFORCEMENT 25
ARTICLE XII. SPECIAL DECLARANT RIGHTS 25
ARTICLE XIII. RIGHTS OF FIRST MORTGAGEE 28
ARTICLE XIV. RIGHT OF ENTRY 28
ARTICLE XV. AMENDMENTS 29
ARTICLE XVI. DISPUTE RESOLUTION 29
ARTICLE XVII. MISCELLANEOUS 34
EXHIBIT A. LEGAL DESCRIPTION A-1
EXHIBIT B. BYLAWS B-1
This DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR ROSEWOOD TOWNHOME OWNERS ASSOCIATION (“Declaration”) is effective when recorded with the Madison County Recorder’s Office
by Akaroa Properties, LLC, a Utah limited liability company (“Declarant”).
RECITALS
The real property situated in Madison County, Idaho, described in Exhibit A, attached to and incorporated in this Declaration by reference, is hereby submitted, together with all buildings
and improvements previously, now, or hereafter constructed, and all easements and rights appurtenant thereto, to a residential planned unit development consisting of Lots and related
Common Areas that shall be known as Rosewood Townhome Owners Association (the “Project”).
Declarant is the owner of the real property subject to this Declaration. By signing this Declaration, the undersigned consents to subjecting its real property located in the Project
to the terms, covenants and restrictions contained herein.
Declarant hereby desires to establish for the mutual benefit of all future Owners and Occupants of the Project, certain covenants, conditions, restrictions, easements, rights, privileges,
assessments and liens as set forth herein, which shall run with and be a burden upon the Project.
Declarant desires to create an association of home owners, which entity shall possess the power to maintain and administer the Common Areas, collect and disburse assessments and charges
hereinafter provided for, and administer and enforce the provisions of this Declaration. It is intended that this Declaration shall serve as a binding contract between the Association
and each Owner; however, nothing herein is intended to create a contractual relationship between Declarant and the Association or Declarant and any Owner, or to inure to the benefit
of any third-party. Additionally, it is not intended that this Declaration be read in conjunction with any deed or real estate purchase contract to create privity of contract between
Declarant and the Association.
Declarant intends that the Owners, Occupants, Mortgagees, and all other persons hereafter acquiring any interest in the Project shall at all times enjoy the benefits of, and shall hold
their interest subject to this Declaration, which is recorded in furtherance of establishing a general plan of planned unit ownership for the Project, and for establishing rules for
the use, occupancy, management, and enjoyment thereof.
Declarant explicitly reserves for itself the option in the future to expand the Project.
ARTICLE I. DEFINITIONS
The capitalized terms used in this Declaration shall have the meanings set forth in this Article. Unless the context clearly requires otherwise, the masculine, feminine and neuter genders
and the singular and the plural shall be deemed to include one another, as appropriate.
“Additional Land” shall mean and refer to, without limitation, any parcel of land that is annexed into the Project by the Declarant.
“Annual Fee Disclosure” shall mean a written notice provided by the Association to all Members that lists each fee and the corresponding fee amount the
Association intends to impose for the upcoming calendar year, including any Reinvestment Fee.
“Articles” shall mean and refer to the Articles of Incorporation for the Association, as amended and restated from time to time.
“Assessments” shall mean any monetary charge or fee imposed or levied by the Association against Owners as provided in this Declaration or other Governing Documents.
“Association” shall mean the Rosewood Townhome Owners Association, an Idaho nonprofit corporation. Failure of the Association to maintain its corporate status will not result in the
dissolution of the Association.
“Board” or “Board of Directors” shall mean and refer to the Board of Directors of the Association as duly elected in accordance with the terms and conditions of the Articles of Incorporation
and Bylaws. The Board is the governing body of the Association.
“Board Member” shall mean a duly qualified and elected or appointed individual member of the Board of Directors of the Association.
“Bylaws” shall mean the Bylaws of the Association that are attached hereto as Exhibit B, as the same may be amended from time to time.
“City” shall mean the City of Rexburg, Idaho.
“Common Areas” shall mean all land, and the improvements situated thereon, within the Project that the Association now or hereafter owns in fee for the benefit of Owners for as long
as the Association is the owner of the fee, which may include without obligation or limitation: private roads, common sidewalks, parking lots, playgrounds, Association signs or monuments,
open space, landscaped areas, secondary water system, utility facilities, and any real property or improvements within the Project that the Association has the obligation to maintain,
repair, or replace for the common benefit of the Owners, as the Board shall determine in its sole and exclusive discretion, including, without limitation, all utility and service lines
and similar improvements, whether public or private-company owned, intended to serve more than one Residence, whether located on a Lot or lying inside of the exterior boundaries of
the Residence.
“Common Expenses” shall mean (a) all sums lawfully assessed against Owners; (b) expenses of administration, maintenance, management, operation, repair and replacement of the Common Areas
which are maintained by the Association; (c) expenses allocated by the Association among the Owners; (d) expenses agreed upon as common expenses by the Association or its Board of Directors;
(e) expenses declared common expenses by the Declaration; and (f) other miscellaneous charges incurred by the Association or the Board pursuant to this Declaration, the Bylaws, or the
Rules.
“Declarant” shall mean Akaroa Properties, LLC, a Utah limited liability company, and any successor in interest.
“Declaration” shall mean and refer to this Declaration of Covenants, Conditions and Restrictions for Rosewood Townhome Owners Association, as may be amended from time to time.
“Design Guidelines” shall mean the requirements governing the location, color, materials, and architectural design of dwellings, structures, and improvements within the Project as adopted
by the Board as provided herein.
“Governing Documents” shall mean collectively, the Declaration, Articles of Incorporation, Bylaws, Plat, and any Rules adopted by the Board.
“Individual Assessment” shall have the meaning described in Section 5.8 of this Declaration.
“Limited Common Areas” shall mean the Common Area reserved for the use and benefit of a designated Lot or Residence to the exclusion of other Owners. Whether or not indicated on the
Plat, the Limited Common Areas shall include facilities appurtenant to the Residences including porches, balconies, driveways, and portions of the Common Area bounded by approved fences
(if any). The right to the exclusive use of the Limited Common Area shall be appurtenant to each respective Lot and may not be severed from the ownership of the Lot. All installations
or modifications of Limited Common Areas shall be approved by the Association and shall be subject to the provisions in this Declaration and the Design Guidelines. The Board shall have
the power and discretion to determine the Limited Common Area boundaries if the Governing Documents are found ambiguous. If the Limited Common Areas depicted on the Plat differ in size
or locations than the as built Limited Common Areas, the as built dimensions or structures installed by Declarant shall supersede anything depicted on the Plat.
“Lot” shall mean each of the individual Lots within the Project, as shown on the Plat, with the exception of the Common Areas. A Lot shall include any Residence or other building or
improvement constructed thereon. Each Lot consists generally of all structures on or within the boundary of the Lot. With respect to Lots containing attached Residences, the Lot shall
extend to the center of the Party Wall, which shall form the boundary of the Lots sharing that wall. Subject to dividing lines between Lots, any above-ground structure that extends
beyond the vertical plane of the ground-level boundary of the Lot is part of the Lot if it: (1) is part of and an integral part of the Residence’s structure (such as bay windows, pop-outs,
eves, etc., not to include fences, or other appurtenant structures that merely connect to the structure); or (2) was constructed as part of the original construction of the Residence
on the Lot. Unless specifically indicated otherwise, the use of the term “Lot” in this Declaration shall apply to all Lots, regardless of whether the Lots contain attached or detached
Residences.
“Manager” shall mean a person, persons, or entity, if any, selected by the Board to manage the affairs of the Association and Project.
“Member” shall mean and refer to a Lot Owner.
“Mortgage” shall mean any mortgage, deed of trust, or trust deed or the act of encumbering any Lot or any property by a mortgage, trust deed, or deed of trust.
“Mortgagee” shall mean and refer to any person or entity named as a mortgagee of a mortgage or beneficiary under or holder of a deed of trust.
“Occupant” shall mean any Person, living, dwelling, visiting, or staying in a Residence. This includes, but is not limited to, all lessees, tenants, and the family members, agents, and
representatives living, dwelling, visiting, or staying in a Residence. Occupants shall be bound by the Restrictions in this Declaration and shall be liable for any fines that are assessed
for violations of the Governing Documents.
“Owner” shall mean the record owner, whether one or more Persons, of fee simple title to any Lot which is a part of the Project, including contract sellers, but excluding those having
an interest merely as security for the performance of an obligation.
“Party Wall” shall mean a wall, including without limitation a foundation wall, that forms part of a Residence and is located on or adjacent to a boundary line between two or more adjoining
Residences that are owned by more than one (1) Owner and is used or is intended to be used by the Owners of the benefitted Residences as a structural partition wall. A Party Wall may
be separated by a sound board between two or more Residences.
“Period of Declarant Control” shall mean the period of time during which the Declarant may act as the Board of Directors, or appoint Board Members. Such period of time shall commence
on the date this Declaration is recorded and terminate on the occurrence of the earliest of the following events: (i) six (6) months after the date on which all of the Lots and all
of the Additional Land, have been conveyed to Persons other than Declarant or it successors, assigns, and affiliates, regardless of whether such Additional Land has been added hereto;
or (ii) the Declarant executes and records a written waiver of its right to control the Association. The Special Declarant Rights contained within this Declaration may last beyond the
Period of Declarant Control for the maximum length permitted by law. If the Declarant elects to waive one or more, but not all, of its Special Declarant Rights, then all Special Declarant
Rights not waived shall remain in full force and effect.
“Person” shall mean and refer to a natural individual, corporation, business entity, estate, partnership, trustee, association, joint venture, government, governmental subdivision, or
agency or other legal entity capable of holding title to real property.
“Plat” shall mean the official subdivision plats of the Molinari Park Subdivisions filed and recorded in the official records of the Madison County Recorder which contain Lots that are
subject to this Declaration. The term Plat shall specifically include any additional, amended, or supplemental plat(s) that may be recorded in the future. The Plat is hereby incorporated
into and made an integral part of this Declaration, and all requirements and specifications set forth on the Plat are deemed included in this Declaration. If any conflict exists between
the Plat and this Declaration, the Declaration shall control.
“Project” shall include the real property described in Exhibit A, together with the buildings, improvements, and permanent fixtures located thereon, and all easements and rights appurtenant
thereto and shall at any point in time mean and refer all Lots and parcels that are part of the Rosewood Townhome Owners Association and are subjected to this Declaration. The Project
shall also include any Additional Land annexed into the Association and made subject to this Declaration.
“Regular Assessment” shall have the meaning described in Section 5.5 of this Declaration.
“Reinvestment Fee” shall have the meaning described in Section 5.20 of this Declaration.
“Residence” shall mean a structure intended for use and occupancy as a single-family residence, together with the garage and all improvements located on or with respect to the Lot concerned
which are used in connection with such residential structure. The Residence shall include, without limitation, the roofs and all exterior surfaces, exterior trim, gutters, downspouts,
structural members, and foundations. The Residence shall also include any mechanical equipment and appurtenances located within any one Residence, or located without said Residence
but designed to serve only that Residence, such as appliances, air conditioning compressors, sprinkler systems, antennas, fixtures and the like. All pipes, wires, conduits, or other
utility lines or installations constituting a part of the Residence or serving only the Residence shall be deemed to be a part of the Residence.
“Restrictions” shall mean the covenants, conditions, assessments, easements, liens, and restrictions set forth in this Declaration.
“Rules” shall mean and refer to the rules, resolutions, regulations, policies, architectural guidelines, etc. adopted by the Board.
“Service Area” shall mean a geographical area in the Project in which the Lots within that area receive special benefits or services from the Association that the Association does not
provide to all Lots within the Project.
“Service Area Assessment” shall have the meaning described in Section 5.6 of this Declaration.
“Special Assessment” shall have the meaning described in Section 5.7 of this Declaration.
“State” shall mean the State of Idaho.
“Supplemental Declaration” shall mean a written instrument recorded in the records of the Madison County Recorder, which refers to this Declaration and which amends, modifies, or supplements
this Declaration in accordance with its terms.
ARTICLE II. PROJECT DESCRIPTION
2.1. Submission. The real property described with particularity on Exhibit A attached hereto and incorporated herein by this reference is hereby submitted to this Declaration. The Declarant
declares that the Project and all of the Lots shall be held, conveyed, transferred, sold, mortgaged, encumbered, occupied, used, and improved subject to the Restrictions, which Restrictions
shall constitute covenants and conditions running with the land and shall be binding upon and inure to the benefit of the Declarant, the Association, and each Owner, including their
respective heirs, successors, and assigns.
2.2. Name. The Project, as submitted to the provisions of this Declaration, shall be known as Rosewood Townhomes. The Project is not a cooperative.
2.3. Description of Improvements. The major improvements contained in the Project will include single-family Residences constructed on townhome Lots. Other Lots or Common Area upon the
Additional Land may be added as reserved by the Declarant. There are also open space areas, private roadways, along with other improvements detailed on the Plats. All improvements have
been and shall continue to be constructed in a style and of materials architecturally compatible with the other improvements in the Project. The Lots, their locations, and approximate
dimensions are indicated on the respective Plats.
2.4. Service Areas. The Declarant may create and place Lots into one or more Service Areas in which the Lots share Limited Common Areas or receive special benefits or services from the
Association that it does not provide to all Lots within the Project. The creation of a Service Area, the designation of Lots subject to a Service Area, and the scope of services to
be performed for a Service Area shall be set forth in a Board resolution, or similar Association document. A Lot may be assigned to more than one Service Area, depending on the number
and types of special benefits or services it receives. A Service Area may be comprised of Lots of more than one housing type and may include Lots that are not contiguous. The Declarant
may designate Service Areas and assign Lots to a particular Service Area at any time prior to the expiration of the Control Period. Declarant may also unilaterally amend Service Area
boundaries. Following the Control Period, the Association Board may, by a resolution,
designate Service Areas and assign Lots to them upon the affirmative vote of Owners exceeding sixty-seven percent (67%) of the Lots affected by the proposed designation.
2.5. Expansion of Project. The Project may be expanded by the Declarant by the recording of a Supplemental Declaration in accordance with the provisions of Article XII.
ARTICLE III. MEMBERSHIP AND VOTING RIGHTS
3.1. Membership. Every Owner shall be a Member of the Association with one membership interest per Lot. Membership in the Association shall be mandatory, shall be appurtenant to the
Lot in which the Owner has the necessary interest, and shall not be separated from the Lot to which it appertains. Membership in the Association shall not be transferred, pledged, or
alienated in any way, except upon the transfer of ownership of the Lot to which it is appurtenant, and then only to the new Owner. Any attempt to make a prohibited transfer is void.
In the event an Owner fails or refuses to transfer the membership registered in his name to the purchaser of his Lot, the Association shall have the right to record the transfer upon
its books and thereupon the old membership outstanding in the name of the seller shall be null and void.
3.2. Voting Rights. Except as otherwise disallowed in this Declaration or the Bylaws, or limited by the Special Declarant Rights, Owners shall be entitled to one vote per Lot owned.
3.3. Multiple Ownership Interests. If there is more than one Owner of a Lot, the vote relating to such Lot shall be exercised as such Owners may determine among themselves. A vote cast
by any of such Owners, whether in person or by proxy or by written ballot, shall be conclusively presumed to be the vote attributable to the Lot concerned unless an objection is immediately
made by another Owner of the same Lot. In the event such an objection is made or if there are conflicting votes from the same Lot, the vote involved shall not be counted for any purpose,
except towards establishing a quorum.
3.4. Record of Ownership. Every Owner shall promptly notify the Association of any change in ownership of a Lot by providing the conveyance information to the Secretary of the Association
who shall maintain a record of ownership of the Lots. Any cost incurred by the Association in obtaining the information about an Owner as specified herein which is not furnished by
such Owner shall nevertheless be at the expense of such Owner and shall be reimbursed to the Association as an Individual Assessment.
ARTICLE IV. EASEMENTS AND RIGHTS IN COMMON AREAS
4.1. Easement of Enjoyment. Each Member shall have a right and easement of use and enjoyment in and to the Common Areas. Such right and easement shall be appurtenant to and shall pass
with title to each Lot and in no event shall be separated therefrom. Any Member may delegate his easement and right of use and enjoyment described herein to any permitted Occupant(s)
who reside in such Owner’s Residence. The rights and privileges of such delegee or assignee shall be subject to suspension in the same manner and to the same degree as those of an Owner.
This right of easement shall not extend to the Limited Common Area or privately owned Lots of other Owners.
4.2. Title to Common Areas. The Declarant may convey title to the Common Areas to the Association, the City, or to any other entity in the discretion of the Declarant; however, neither
this conveyance nor any other provision of the Declaration shall be construed to create a contractual relationship between the Association and Declarant.
4.3. Limitation on Easement. A Member’s right and easement for the use and enjoyment of the Common Areas shall be subject to the following:
The right of any governmental or quasi-governmental body having jurisdiction over the Project to access and rights of ingress and egress over and across any street, parking area, walkway,
or open area contained within the Project for purposes of providing police and fire protection, transporting school children, and providing any other governmental or municipal service;
The right of the Association to suspend voting rights and right to use the Common Area amenities by an Owner for any period during which any Assessments against his Lot remain unpaid,
and for a period not to exceed sixty (60) days for any infraction of the Rules;
The right of the Association to dedicate or transfer all or any part of the Common Areas, and any sewer, water and storm drain lines to any public agency or authority for such purposes
and subject to such conditions as may be agreed to by the Association. Any such dedication or transfer must, however, be assented to by sixty-seven percent (67%) of the Owners.
4.4. Association Easement. The Association, its Board, employees, agents, and contractors shall have non-exclusive easements to use the Common Areas and Limited Common Areas to perform
their duties as assigned by the Governing Documents.
4.5. Easement for Utility Services. The Project is subject to a blanket easement over, across, above, and under it for ingress, egress, installation, maintenance, repair, and replacement
of utilities. Utilities include, without limitation, water, sewer, gas, telephone, electricity, data, video, and cable. If any utility company or municipal authority requests that a
more specific easement be granted in its favor in substitution for the easement hereby established with respect to the Common Areas, the Board shall have the power and authority, without
the need for any consent by the Owners to grant the more specific easement on such terms and conditions as the Board deems appropriate. It is intended that this utility easement be
construed broadly and such easement shall specifically include the areas directly underneath and across the entire main floor of each attached Residence for the installation and maintenance
of utility lines across and through each townhome building and all Residences therein.
4.6. Easements for Encroachments. If any portion of a Common Area or Limited Common Area structure or improvement encroaches upon any Lot, or if any structure or improvement of a Lot
encroaches upon any other Lot, or the Common Area as a result of the manner in which the improvements were initially approved and constructed, or due to settling, shifting, alteration,
replacement, repair, or restoration, a valid easement for encroachment, and maintenance of such encroachment, shall exist for the life of the improvement or structure.
4.7. Party Wall and Shared Roof Easement. Each Owner hereby acknowledges and agrees that a Party Wall or shared roof may presently encroach upon or overlap the Owner’s Lot. Each Owner
of a Lot hereby grants to the adjoining Owner of the adjacent Lot that shares the Party Wall, or shared roof, an easement over and upon its Lot for the limited purpose of maintaining
the Party Wall and shared roof. By accepting a deed to a Lot, each Owner hereby covenants and agrees not to do anything or to erect any barrier that will hinder, delay or limit the
maintenance of the Party Wall and shared roof and the performance of each Owner’s obligation to maintain and repair the building or structure.
ARTICLE V. BUDGET AND ASSESSMENTS
5.1. Annual Budget. The Board shall prepare and adopt an annual budget for the Association. The annual budget shall provide, without limitation, for the maintenance of the Common Areas
and for the administration, management, and operation of the Association. The Board may revise the budget from time to time as the Board deems appropriate. If the Board fails to adopt
an annual budget, the last adopted budget shall continue in effect until a new annual budget is adopted. The budget shall be made available to requesting Owners within thirty (30) days
after adoption. Owners may not disapprove a budget during the Period of Declarant Control.
1) Service Area Expenses. If one or more Service Areas are designated, then the budget shall track and estimate the expenses associated with each Service Area separately from Common
Expenses in order to allocate these expenses as set forth in Section 5.7. “Service Area Expenses” shall include the actual and estimated expenses incurred or to be incurred by the Association
for the benefit of the Lots within each Service Area which may include snow removal, landscaping, construction, insurance, maintenance, and repair and replacement of Common Area facilities
appurtenant to the Service Area, structures, and adjacent areas. If the Service Area responsibilities require the maintenance or repair of long-term Common Area facilities, then the
Service Area Expenses shall include contributions to a reserve fund for the repair and replacement of such facilities. Service Area reserves shall be accounted for and kept separate
from the Association’s other reserve funds.
2) Annual Financial Disclosure. The Association shall provide to all Owners, within sixty (60) days of the close of the Association’s fiscal year, the financial disclosure required
by Idaho Code § 55-3205(4).
5.2. Covenant to Pay Assessments. Each Owner of a Lot by the acceptance of a deed therefore, whether or not it be so expressed in the deed, hereby covenants and agrees with each other
and with the Association to pay to the Association all Assessments, including without limitation, all Regular Assessments, Service Area Assessments, Special Assessments, Individual
Assessments, and Reinvestment Fees described below, and other fees, charges, levies, and fines as may be provided in the Governing Documents, and permitted under State law. Assessments
shall be a personal obligation of the Owner of each Lot at the time the Assessment becomes due, secured by the property interest of the Owner in the Lot. The Association shall have
the contractual right, pursuant to this Declaration, to record a lien against each Lot for all delinquent Assessment amounts to enforce its real property interest in the Lot. The grantee
of any Lot shall be jointly and severally liable with the grantor for all unpaid Assessments against the Lot at the time of the grant or conveyance.
5.3. Purpose of Assessments. Assessments levied by the Association shall be used for the purpose of promoting the health, safety, and welfare of residents of the Project, including but
not limited to the appearance and aesthetics of the Project. The use made by the Association of funds obtained from Assessments may include, but is not limited to: payment of the cost
of taxes and insurance on the Common Areas; maintenance, repair, and improvement of the Common Areas; establishing and funding a reserve to cover major repair or replacement of improvements
within the Common Areas; and any expenses necessary or desirable to enable the Association to perform or fulfill its obligations, functions, or purposes under the Governing Documents.
5.4. Declarant Assessment Exemption. Anything contained in the Governing Documents to the contrary notwithstanding, the Declarant shall not be obligated to pay Assessments on any Lot
owned by it until such time as the Declarant elects in writing to pay Assessments, and only for so long as the Declarant elects to pay Assessments. In addition, the Declarant may exempt
Lots owned by Declarant affiliates from the payment of Assessments during the Period of Declarant Control, in the Declarant’s sole discretion.
5.5. Regular Assessments. Regular Assessments shall be made on a calendar year basis based on each Owner’s equally allocated portion of the budget. The Board shall give written notice
of each Annual Assessment not less than fifteen (15) days prior to the beginning of the next calendar year. Each Annual Assessment shall be due and payable in monthly or quarterly installments
on dates established by the Board. At least fifteen (15) days prior to the effective date of any change in the amount of the Annual Assessment, the Association shall give each Owner
written notice of the new amount.
5.6. Service Area Assessment. Service Area Assessments shall be paid by all Lots within a designated Service Area that are subject to assessment in addition to the Regular Assessment.
The amount of the Service Area Assessment shall be determined by equally allocating the budgeted Service Area Expenses to all Lots within the Service Area. At no time shall a Service
Area Assessment be charged or assessed to Lots outside of the designated Service Area. The amounts the Association collects as Service Area Assessments shall be held in trust for and
expended solely for the benefit of the Lots from which they were collected.
5.7. Special Assessments. The Board may levy a Special Assessment payable over such a period as the Board may determine for the purpose of defraying, in whole or in part any expense
or expenses not reasonably capable of being fully paid with funds generated by Regular Assessments; the cost of any construction, reconstruction, or unexpected repair or replacement
of the Common Areas; or for any other expense incurred or to be incurred as provided in this Declaration. Special Assessments over five hundred dollars ($500) in a calendar year must
be approved and assented to by a majority of the Members present in person or by proxy at a meeting duly called for such purpose. Notice in writing of the amount of any Special Assessments
and the time for their payment shall be given as soon as is reasonably possible to the Owners. Payment shall be due on the dates and in the manner determined by the Board and provided
in the notice. Notwithstanding the foregoing, Declarant may levy Special Assessments in any amount deemed necessary during the Period of Declarant Control without Owner approval.
5.8. Individual Assessments. In addition to the Assessments authorized above, the Board may also levy Individual Assessments against a Lot and its Owner for: (a) administrative costs
and expenses incurred by the Board in enforcing the Governing Documents against the Owner or his/her Occupants; (b) costs associated with the maintenance, repair, or replacement of
Common Areas caused by the neglect or actions of an Owner or his/her Occupants; (c) any other charge, fine, fee, expense, or cost designated as an Individual Assessment in the Governing
Documents or by the Board, including, without limitation, action taken to bring a Residence and its Owner into compliance with the Governing Documents; (d) nonpayment of a Reinvestment
Fee; (e) costs of providing services to the Lot upon request of the Owner; and (f) attorney fees, court or collection costs, fines, and other charges relating to any of the foregoing,
regardless of whether a lawsuit is filed. In addition, Individual Assessments may be levied against a Lot and its Owner specifically benefited by any improvements to adjacent roads,
sidewalks, planting areas or other portions of the Common Areas made on the written request of the Owner of the Lot to be charged. The aggregate amount of any such Individual
Assessments shall be determined by the cost of such improvements, repairs, maintenance, or enforcement action, including all overhead and administrative costs and attorney fees, and
shall be allocated among the affected Lots according to the special benefit or cause of damage or maintenance or repair work or enforcement action, as the case may be. Individual Assessments
may be levied in advance of the performance of the work. If a special benefit arises from any improvement which is part of the general maintenance obligations of the Association, it
shall not give rise to an Individual Assessment against the Lot(s) benefited, unless such work was necessitated by the Owner’s or his/her Occupants’ negligence.
5.9. Allocation of Assessments. Regular and Special Assessments shall be fixed at an equal uniform rate for all Lots, unless otherwise provided in the Governing Documents. Individual
Assessments shall be allocated separately to each Lot based on the costs incurred by the Association.
5.10. Application of Excess Assessments. In the event the amount budgeted to meet Common Expenses for a particular fiscal year proves to be excessive in light of the actual Common Expenses,
the Board in its discretion may apply the excess to reserves, credit the excess against future Assessments, or pay the excess to the Owners, as the Board deems appropriate. The decision
of the Board shall be binding and conclusive. In addition, the Association shall not be obligated to reduce the amount of Assessments in succeeding years if an excess exists for a prior
year.
5.11. No Offsets. All Assessments shall be payable in the amount specified by the Assessment and no offsets against such amount or withholding of any amount shall be permitted for any
reason, including, without limitation, a claim that the Association owes the Owner money, or that the Association is not properly exercising its duties and powers as provided in this
Declaration.
5.12. Certificate Regarding Payment. Upon the request of an Owner, prospective purchaser, mortgagee, or encumbrancer of a Lot, the Association shall issue a certificate stating whether
or not all Assessments respecting such Lot are current and, if not, the amount of the delinquency. Such certificate shall be conclusive in favor of all persons who in good faith rely
thereon. The Association may charge the requesting Owner, prospective purchaser, mortgagee, or encumbrancer of a Lot a reasonable fee for this service.
5.13. Personal Obligation and Lien. All Assessments, together with any interest, late fees, collection costs, and attorney fees shall constitute and remain: (a) a charge and continuing
lien upon the Lot pursuant to the contractual lien rights created by this Declaration; a continuing lien upon the Lot pursuant to all statutory lien rights provided by State law; and
(c) the personal contractual obligation of the person who is the Owner of such Lot at the time the Assessment falls due. No Owner may exempt himself or his Lot from liability for payment
of Assessments by waiver of his rights concerning the Common Areas or by abandonment of his Lot. In a voluntary conveyance of a Lot, the grantee shall be jointly and severally liable
with the grantor for all such unpaid Assessments, late payment fees, interest, and costs of collection, including reasonable attorneys’ fees, which shall be a charge on the Lot at the
time of the conveyance, without prejudice to the grantee’s right to recover from the grantor the amounts paid by the grantee therefore. A lien to secure unpaid Assessments shall not
be affected, canceled, or otherwise eliminated by the sale or transfer of a Lot unless foreclosure by a higher priority encumbrance is involved, in which case the foreclosure will extinguish
the lien as required by law for any Assessments that were payable before the foreclosure sale, but shall not relieve any subsequent or successor Owner from paying further Assessments
or from the lien for any future Assessments.
5.14. Billing and Collection Procedures. The Board shall have the right to adopt Rules or a Board resolution setting forth procedures for the billing and collection of Assessments, provided
that such procedures are not inconsistent with the provisions hereof. The failure of the Association to send an invoice to an Owner shall not relieve any Owner of liability for any
Assessment or charge under this Declaration, but the Assessment lien therefore shall not be foreclosed or otherwise enforced until the Owner has been given not less than thirty (30)
days written notice prior to such foreclosure or enforcement, at the address of the Owner on the records of the Association, of the Assessment or installment and of the amount owing.
Such notice may be given at any time prior to or after delinquency of such payment. A copy of such notice may also be provided to the Occupant(s) of the Residence if the Owner does
not reside in the Project. Unless otherwise provided for in the Rules or Board resolution, all payments for Assessments shall be applied to the earliest (or oldest) charges first. Owners
shall have no right to direct the application of their payments on Assessments or to require application of payments in any specific order, to specific charges, or in specific amounts.
5.15. Due Date and Delinquency. Assessments shall be paid in a timely manner. Payments are due in advance on the first day of the month or the first day of such other period established
for the payment of Assessments. Payments are delinquent if received more than ten (10) days from the date that they became due. Whenever an Assessment is delinquent, the Board may at
its option invoke any one or more options or all of the sanctions granted in this Article.
5.16. Collection Charge. If the Association does not otherwise adopt or establish billing and collection procedures in the Rules or Board resolution, the following shall apply. Delinquent
accounts shall be charged a twenty-five dollar ($25.00) late fee each month until the Owner’s account (including all collection charges, costs, and attorneys’ fees) is paid in full.
Interest shall accrue on all unpaid balances at the rate of eighteen percent (18%) per annum. Collection charges, interest, and/or late fees shall constitute part of the Assessment
lien provided above until paid. The Association may also assess to the Owner a collection charge, late fee, and any other reasonable fee charged by a Manager related to collections.
5.17. Collection Action at Law. The Association may exercise any or all of the following remedies to collect delinquent Assessments:
The Association may suspend such Owner’s voting rights.
The Association shall have a lien against each Lot for any Assessment levied against the Lot and any fines or other charges imposed under the Governing Documents against the Owner of
the Lot from the date on which the Assessment, fine, or charge is due. This lien shall arise and be perfected in compliance with § 55-3207 of Idaho Code, and other applicable law. At
any time, any Assessment or installment thereof is delinquent, the Association, by and through its Board or any Manager, may file a claim of lien in the deed records of Madison County
against the Lot with respect to which the delinquency pertains. Once filed, such lien shall accumulate all future Assessments or installments, interest, late fees, penalties, fines,
attorney fees, and other appropriate costs properly chargeable to an Owner by the Association, until such amounts are fully paid. Said lien may be foreclosed at any time as allowed
by law. The lien of the Association shall be superior to all other liens and encumbrances except: a lien or encumbrance recorded before the original Declaration was recorded; a first
or second security interest on the Lot secured by a mortgage or trust deed that is recorded before the Association's notice of lien; or a lien for real estate taxes or other governmental
assessments against the Lot. The Association through its duly
authorized agents, may bid on the Lot at any foreclosure sale, and may acquire and hold, lease, mortgage, and convey the Lot.
The Association may bring an action to recover a money judgment for unpaid Assessments, fines, and charges under this Declaration against an Owner without foreclosing or waiving the
lien described above. Recovery on any such action, however, shall operate to satisfy the lien, or the portion thereof, for which recovery is made.
If the delinquent Owner is leasing his Lot or any portion thereof, the Board may, at its option, so long as such default shall continue, demand and receive from any tenant of the Owner
the rent due or becoming due and the payment of such rent to the Board shall discharge such tenant for rent due, and shall discharge the Owner for such Assessments to the extent of
the amount so paid.
The Association may terminate utilities paid out of the Common Expense and the right to use the Common Areas.
Payments shall be credited first to collection costs (including attorney’s fees), then to interest and late fees, then to the oldest assessments, then the most recent assessments.
The Association shall have any other remedy available to it whether provided in the Governing Documents, other law, or in equity.
5.18. Power of Sale. The Association shall have lien rights against each Lot both contractually by the Declaration and statutorily through State law. The Association shall have all rights
of lien foreclosure granted by law, both judicially and non-judicially. The Association may appoint a qualified successor trustee by executing and recording a substitution of trustee
form.
5.19. Reserve Account. The Board shall be authorized to establish a reserve account to fund long-term maintenance of Common Areas. The Board shall follow any statutory requirement,
if any, to conduct a reserve analysis and utilize such reserve analysis in making decisions regarding the funding of a Reserve Account. The Board shall not be personally liable for
failure to fund the reserve unless willful or intentional misconduct is proven in a court of law. Notwithstanding the foregoing, such reserve fund duties and obligations shall not apply
to the Association and Board during the Period of Declarant Control.
5.20. Reinvestment Fee Covenant. A perpetual Reinvestment Fee Covenant is hereby established that obligates all Transferees of Lots to pay the Association a fee that benefits the Lot
and Project. The Board shall have the right to establish the Reinvestment Fee amount in accordance with this Section and applicable law. The following terms shall govern Reinvestment
Fees:
Upon the occurrence of any sale, transfer, or conveyance of any Lot as reflected in the office of the County recorder, regardless of whether it is pursuant to the sale of the Lot or
not (as applicable, a “Transfer”), the party receiving title to the Lot (the “Transferee”) shall pay to the Association a Reinvestment Fee.
The Reinvestment Fee shall be due and payable by the Transferee to the Association at the time of the Transfer, and shall be treated as an Individual Assessment for collection purposes.
The Reinvestment Fee may only be paid to the Association, for the Benefit of the Association, and shall not be paid to any other individual or entity, including the Association’s agent,
property manager, Board Member, or any third party.
The Reinvestment Fee may only be used for Common Expenses or funding the reserves of the Association.
The Association has provided the Members with a timely Annual Fee Disclosure and the Reinvestment Fee does not exceed the amount disclosed in the Annual Fee Disclosure.
No additional fees or surcharges may be imposed in connection with the transfer of a Lot unless such fees or surcharges are listed in the Annual Fee Disclosure.
All transfers of Lots from Declarant to a Declarant related entity shall be exempt from a Reinvestment Fee. The Declarant shall have the sole discretion to determine whether such Transferee
is a related entity and if a Reinvestment Fee applies.
5.21. Account Payoff Fees. The Association may charge a fee for providing Association payoff information needed in connection with financing, refinancing, or closing of the sale of a
Lot. The amount of such fee shall be fifty dollars ($50.00) or as otherwise established in the Rules. Additional paperwork required in a private sale between an Owner and purchaser
may be obtained from the Association but may incur additional fees.
5.22. Association Responsibility after Foreclosure. If the Association takes title to a Lot pursuant to a foreclosure (judicial or non-judicial), it shall not be bound by any of the
provisions related to the Lot that are otherwise applicable to any other Owner, including but not limited to obligations to pay assessments, taxes, or insurance, or to maintain the
Lot. By taking a security interest in any Lot governed by this Declaration, Mortgagees cannot make any claim against the Association for nonpayment of taxes, Assessments, or other costs
and fees associated with any Lot if the Association takes title to a Lot related to a failure to pay Assessments.
5.23. Homestead Waiver. To the extent any liens are created pursuant to this Declaration, whether such liens are now in existence or are created at any time in the future, each Owner
waives the benefit or priority of any homestead or similar exemption laws of the State now in effect, or in effect from time to time hereafter.
ARTICLE VI. DUTIES AND POWERS OF THE ASSOCIATION
6.1. Organization of Association. The Association shall serve as the governing body for all Owners. The Association shall make provisions for the maintenance, repair, replacement, administration,
and operation of the Common Area and Common Expenses, and other matters as provided in this Declaration and the Bylaws. The Association shall have all rights and powers granted to it
under this Declaration, the Articles, and the Bylaws. The Association shall not be deemed to be conducting a business of any kind, and all funds received by the Association shall be
held and applied by it for the Owners in accordance with this Declaration, the Articles, and the Bylaws. Except as specifically authorized in this Declaration, the Articles, or the
Bylaws, no Owner or group of Owners shall have authority to take any action on behalf of the Owners, the Association, or the Board of Directors.
6.2. Legal Organization. The Association is intended to be incorporated as a nonprofit corporation. In the event the nonprofit corporate status expires or is invalidated in any manner,
it shall automatically be succeeded by an unincorporated association of the same name vested with all property, powers and obligations of the nonprofit corporation and the Board of
Directors, in its sole discretion, may renew and/or reincorporate the Association. Any such expiration or
invalidation shall not relieve any Owner from paying Assessments and abiding by all Restrictions contained in this Declaration.
6.3. General Powers and Obligations. The Association shall have, exercise and perform all of the following powers, duties, and obligations:
The powers, duties, and obligations granted to the Association by this Declaration, its Bylaws, and the Articles of Incorporation;
The powers and obligations of a nonprofit corporation pursuant to the general nonprofit corporation laws of the State;
The powers, duties, and obligations of a homeowners association pursuant to State law;
The powers, duties, and obligations not reserved specifically to Owners; and
Any additional or different powers, duties, and obligations necessary or desirable for the purpose of carrying out the functions of the Association pursuant to this Declaration or otherwise
promoting the general benefit of the Owners within the Project.
The powers and obligations of the Association may from time to time be amended, repealed, enlarged, or restricted by changes in this Declaration made in accordance with the provisions
herein, accompanied by any necessary changes in the Articles of Incorporation or Bylaws of the Association made in accordance with such instruments and with the nonprofit corporation
laws of the State.
6.4. Specific Powers and Duties. The powers and duties of the Association shall include, without limitation, the following:
Maintenance and Services. The Association shall provide maintenance and services for the Project as provided in Article VII and other provisions of this Declaration.
Insurance. The Association shall obtain and maintain in force policies of insurance as provided in this Declaration. The Association shall have no obligation to obtain or maintain any
insurance covering the personal and real property of any Owner(s), and each Owner shall be responsible for obtaining and maintaining such personal and real property insurance.
Rulemaking. The Association, through its Board of Directors, shall make, establish, promulgate, amend, and repeal Rules governing the conduct of persons and the operation and use of
the Project as it may deem necessary or appropriate in order to assure a clean, aesthetically pleasing, peaceful, and orderly use and enjoyment of the Project.
Assessments. The Association shall adopt budgets and impose and collect Assessments as provided in Article V of this Declaration.
Enforcement. The Association shall perform such acts, whether or not expressly authorized by this Declaration, as may be reasonably necessary to enforce the provisions of the Governing
Documents of the Association. The Association may assess fines to Owners, Occupants, or their guests for violations of the Governing Documents in accordance with the provisions of the
Governing Documents; provided however, that the Association may only levy a fine on an Owner after 1) providing at least thirty (30) days written notice to the Owner of a meeting in
which the Board intends to vote on the fine, 2) the Board provides the Owner an opportunity to be heard at such meeting, and 3) a majority of the Board approves the fine.
Title to Common Areas. The Association may hold title to Common Areas
conveyed to it, and pay all real property taxes and assessments levied upon any portion of the Common Areas, unless paid by the Owners, provided that the Association shall have the right
to contest or compromise any such taxes or assessments. Declarant shall have all rights and voting authority to unilaterally approve the transfer of title to Common Area on behalf of
the Association during the Period of Declarant Control. After the Period of Declarant Control, upon approval of sixty-seven percent (67%) or more of the total voting interests, the
Board shall have the authority to transfer title to Common Area real property owned by the Association to governmental entities for public use, or to individual third parties for private
use.
Employment of Agents, Advisers, and Contractors. The Association may employ the services of any person or corporation as managers, hire employees to manage, conduct, and perform the
business, obligations, and duties of the Association, employ professional counsel and obtain advice from such persons or firms or corporations such as, but not limited to, community
association managers, landscape architects, accountants, recreational experts, architects, planners, lawyers, reserve study specialists, or what is convenient for the management, maintenance,
and operation of the Project. The Board has no authority to enter into a management agreement or contract inconsistent with the terms of the Governing Documents or that provides for
a termination fee or requirement for termination for cause.
Litigation. The Board may instigate litigation to enforce the provisions of this Declaration or any other Common Law or statutory right which the Association is granted subject to the
limitations set forth in Article XVI.
Bulk Service Agreements. The Association shall have the right to enter agreements, as the Board deems appropriate, for the provision of cable, television, internet, telephone, or other
similar services for all of the Lots or groups of Lots. Such services shall be assessed to the Owners pursuant to the provisions of this Declaration and in any Assessment, may be broken
out as a separate line item on invoices, statements, or notices of Assessment.
Loans. The Association shall have the authority to obtain loans for the efficient operation of the Association and may use Common Area and other assets of the Association as collateral
for financing. A majority vote of the Board shall be required prior to obtaining any loan.
Joint Use/Cost Sharing/Easement Agreements. The Association shall have the right to enter agreements and/or easements for the use, maintenance, repair, and replacement of improvements
or facilities which use may be shared with other homeowners associations or other property owners, or which may be located on land outside of the Project. The shared facilities and
improvements appurtenant to the agreements may be located within or outside the Project.
6.5. Liability. Board Members and officers of the Association shall not be liable to the Association or to any Member thereof for any damage, loss, or prejudice suffered or claimed on
account of any action or failure to act in the performance of his or her duties, except for intentional or willful misconduct. If a Board Member or any officer of the Association is
made a party to any proceeding because the individual is or was a Board Member or officer of the Association, the Association shall defend, indemnify, and hold harmless such individual
against liability and expenses incurred to the maximum extent permitted by law, except where the Board member or officer is found by a court of law to have engaged in willful or intentional
misconduct in carrying out his/her duties.
6.6. Board of Directors. The governing body of the Association shall be the Board of Directors. Except where a matter or vote is specifically reserved to the Owners, the Board shall
act in all instances on behalf of the Association. Board Members shall be elected pursuant to the provisions set forth in the Bylaws. The Bylaws may set forth requirements for serving
on the Board. Declarant appointed Board Members shall not be bound by the qualification requirements in the Bylaws.
6.7. Board Indemnification. Each past and present Board Member (including the Declarant and its appointees) shall be entitled to defense and indemnification to the fullest extent permitted
by State law. The right of any Person to be indemnified shall be subject always to the right of the Association by the Board, in lieu of such indemnity, to settle any claim, action,
suit, or proceeding at the expense of the Association by the payment of the amount of such settlement and the costs and expenses incurred in connection therewith.
6.8. Registration with the State. In compliance with State law, the Association shall be registered with the State as a nonprofit corporation and shall update its registration to keep
any required information current as required by law.
6.9. Registered Agent. The Registered Agent of the Association shall be as provided in the entity filings with the Idaho Secretary of State. The Board may change the Registered Agent
without Owner vote or approval.
6.10. Records. Owners shall have the right to inspect Association Records within a reasonable time following an Owner’s request. “Association Records” are limited to the following documents
and information: (a) Declaration, (b) Bylaws, (c) Articles of Incorporation, (d) minutes of Owner meetings and Board meetings, (e) most recent approved budget, (f) a record of all actions
taken by Owners or the Board without a meeting, (g) a record of all actions taken by a committee of the Board in place of the Board, (h) a record of all waivers of notices for Owner
meetings and Board meetings, (i) a list of all Owners in alphabetical order showing their address and the number of votes each Owner is entitled, (j) all resolutions adopted by the
Board currently in effect, (k) all written communications to Owners generally as Members for a period of three years, (l) a list of Board member names and addresses, (m) a copy of the
most recent annual report delivered to the State, (n) all annual financial statements (balance sheet and profit and loss statement) of the Association for the past three years, and
(o) the most recent reserve analysis. Association Records shall specifically exclude emails, texts, phone calls, writings, and personal communications between Board Members or Owners.
The Board shall have the power and discretion to determine what documents or information are considered Association Records if there is a dispute over the definitions or language provided
in this Section. The Association shall have no duty to keep, maintain, produce, or permit inspection of any documents, draft documents, electronic files, or other information not explicitly
identified in this Section. The Board shall have the sole discretion to determine the format in which documents and records are kept. The Association may redact any private, privileged,
or sensitive information from Association Records produced herein, in the Board’s discretion. The Association may provide additional information or documents to Owners not identified
as Association Records herein, in the Board’s discretion. The Association may make Association Records available via a website, and if so provided, then the Association shall have met
its record inspection obligations set forth in this Section or other applicable law for all such documents posted thereon.
6.11. Management. The Project may be managed by a professional manager, selected by the Declarant, or upon the termination of the Period of Declarant Control, shall be selected by the
Board to assist in the management and operation of the Project. The Board
may delegate such of its powers and duties to the Manager as it deems appropriate; reserving the right, however, to control and oversee the administration thereof. Any powers and duties
delegated to any Manager may be revoked by the Board at any time, with or without cause. Following the Period of Declarant Control, the Board shall have the option to either renew the
contract with the Declarant selected Manager, or hire a different Manager.
6.12. Annual Fee Disclosure. The Association shall deliver the Annual Fee Disclosure on or before January 1 of each calendar year. Only the fees that are included in the Annual Fee Disclosure
may be imposed during that calendar year. If the Board approves changes to any fee amounts, such changes shall be approved at a duly held Board meeting and the Association shall issue
and updated Annual Fee Disclosure to all Owners as soon as reasonably practicable. No revised fees, including fines or assessments, may be collected or enforced until notice of the
updated Annual Fee Disclosure has been delivered to all Owners.
ARTICLE VII. MAINTENANCE
7.1. Association Maintenance. The Association shall maintain, repair, and replace the Common Areas together with all improvements thereon and all easements appurtenant to the Common
Area including, but not limited to, common landscaped areas, storm water facilities, private utility lines owned or controlled by the Association that serve more than one Residence,
private roadways, parking lots, alleyways, playgrounds, and personal property owned by the Association. The Association shall have no responsibility to maintain or repair the public
streets within the Project or any utility lines controlled by a municipality or utility service provider. The Board, in its sole discretion, shall determine the maintenance standard
of the Common Areas. The Association shall have no obligation to perform any maintenance and/or repair of any part of a Lot, Residence, or any other landscaping installed by an Owner
without the Association’s express agreement for such maintenance.
7.2. Owner Maintenance. The Owner of each Lot shall have the obligation to provide interior and certain exterior maintenance of their Lot, Residence, and Limited Common Areas including
but not limited to the maintenance, repair, and replacement of driveways, structural elements of the Residence, foundations, interior walls, windows, doors, fences that separate rear
patios, and utility lines that service the Lot or Residence. Each Owner shall maintain, repair, and replace all appurtenant mechanical devices, including but not limited to, electrical,
plumbing, and heating, ventilating and air conditioning systems. Each Owner shall be responsible for performing all snow removal on the sidewalks and driveways located on their Lot
or Limited Common Area. Owners shall be responsible to maintain, repair, and replace fences which mark the boundaries of their Lots (if any). When such non-perimeter fences serve, benefit,
or otherwise mark a boundary of two or more Lots, the responsibility and cost to maintain, repair, and replace the shared portion of such fences shall be borne pro rata by all Owners
bounded thereby.
7.3. Party Wall and Shared Roof Maintenance. By acceptance of a deed to a Lot, each Owner hereby acknowledges, agrees, and understands that it is essential that the Party Walls and shared
roofs be maintained in good condition and repair to preserve the integrity of the townhome Residences as they are used and occupied by Owners. Each Owner hereby covenants and agrees
not to do anything or to erect any barrier that will hinder, delay, or limit the maintenance of the Party Wall and shared roof appurtenant to their Residence. With respect to the surface
components of the Party Wall, each Owner agrees to maintain and keep in good condition and repair, including the making of replacements as needed, all surface components which face
into such Owners’ respective Residence. With respect to pipes,
conduits, ducts, and other utility service lines and connections which benefit one or more, but fewer than all, of the Owners, the Owner(s) benefited thereby shall be fully and personally
responsible for the cost of maintaining such items in good condition and repair, including the making of replacements as needed. If the need for maintenance or repair of a Party Wall
or shared roof is caused through the willful or negligent act of any Owner or his/her Occupant, the cost of such maintenance or repairs shall be the sole and exclusive expense of such
Owner. With respect to structural components of the Party Walls and shared roofs, except as may be otherwise provided in the immediately preceding sentences, or as otherwise maintained
by the Association, the Owners benefitted by a Party Wall or shared roof agree to share equally in the cost of maintenance and upkeep thereof in good condition and repair, including
the replacement thereof as necessary. If there is a dispute over the responsibility for maintenance or repair of a Party Wall or shared roof, the Association may, but shall not be required
to, intervene and determine each Owner’s responsibility. The Association shall have the powers set forth in Section 7.5 below to remedy any neglect in performing Party Wall or shared
roof maintenance responsibilities.
7.4. Owner Maintenance Neglect. The Association shall have the power and authority, without liability to any Owner for trespass, damage, or otherwise, to enter upon any Lot for the purpose
of maintaining and repairing such Lot or any improvement thereon; but only if the Owner fails to maintain and repair such Lot or improvement, or for the purpose of removing any improvement
constructed, reconstructed, refinished, altered or maintained upon such Lot in violation of this Declaration or any Rules of the Association. The Board shall have the sole authority
and discretion to decide whether an Owner has failed to meet its maintenance obligations. Except as necessary to prevent personal injury or property damage in an emergency, the Association
shall first provide reasonable notice and an opportunity to cure before exercising the power granted herein. All costs incurred by the Association in remedying Owner maintenance neglect
shall be an Individual Assessment against the Owner’s Lot.
The Association shall also have the power and authority from time to time in its own name, on its own behalf, or in the name and behalf of any Owner or Owners who consent thereto, to
commence and maintain actions and suits to restrain and enjoin any breach or threatened breach of this Declaration or any Rules promulgated by the Board, or to enforce by mandatory
injunction or otherwise all the provisions of this Declaration and such Rules.
7.5. Maintenance Caused by Owner Negligence. If the need for maintenance or repair of Common Areas is caused through the willful or negligent acts of an Owner, an Occupant, or through
the willful or negligent acts of the family, guests, tenants, or invitees of an Owner, the Board may cause such repairs to be made by the Association and the cost of such maintenance
or repair work shall be added to and become an Individual Assessment to which such Lot is subject.
7.6. Utility Charges. The charges for utilities that are metered separately to each Lot or Residence shall be the responsibility of the respective Lot Owner. In the event water, electrical,
sewer, or other utilities are metered collectively for the Project, or metered separately for Common Areas, then the Association shall be responsible for paying for such utility costs
as a Common Expense.
ARTICLE VIII. INSURANCE
NOTICE: The Association’s Insurance Policy does not cover the personal property or personal liability of the Owners or their Occupants.
8.1. Insurance. The Board shall obtain insurance as required in this Declaration, or other applicable laws. The Association may obtain insurance that provides more or additional coverage
than the insurance required in this Declaration. Different policies may be obtained from different insurance carriers and standalone policies may be purchased instead of, or in addition
to, embedded, included coverage, or endorsements to other policies. General insurance premiums shall be a Common Expense.
8.2. Property Insurance.
The Association shall maintain a blanket policy of property insurance covering the Project, including the Common Area and all buildings that include attached Residences along with their
fixtures and building services equipment. The Association may maintain broader coverage if afforded by the insurance contract.
The blanket policy shall exclude land and other items not normally and reasonably covered by such policies. The blanket policy shall be an “all in” or “all inclusive” insurance as those
terms are used in the insurance industry and shall include insurance for any fixture, improvement, or betterment installed in or to the Residence or any Limited Common Areas or otherwise
permanently part of or affixed to Common Areas, Residences, or Limited Common Areas, including but not limited to floor coverings, cabinets, light fixtures, electrical fixtures, heating
and plumbing fixtures, paint, wall coverings, windows.
At a minimum, the blanket policy shall afford protection against loss or damage by: (1) fire, windstorm, hail, riot, aircraft, vehicles, vandalism, smoke, and theft; and (2) all perils
normally covered by “special form” property coverage.
The blanket policy shall be in an amount not less than one hundred percent (100%) of current replacement cost of all property covered by such policy (including the Residences) at the
time the insurance is purchased and at each renewal date. The actual replacement cost of the property shall be determined by using methods generally accepted in the insurance industry.
The blanket policy shall include either of the following endorsements to assure full insurable value replacement cost coverage: (1) a Guaranteed Replacement Cost Endorsement under which
the insurer agrees to replace the insurable property regardless of the cost; and (2) a Replacement Cost Endorsement under which the insurer agrees to pay up to one hundred percent (100%)
of the Property’s insurable replacement cost but not more. If the policy includes a coinsurance clause, it must include an Agreed Amount Endorsement which must waive or eliminate the
requirement for coinsurance.
Each property policy that the Association is required to maintain shall also contain or provide for the following: (i) “Inflation Guard Endorsement,” if available, (ii) “Building Ordinance
or Law Endorsement,” (the endorsement must provide for contingent liability from the operation of building laws, demolition costs, and increased costs of reconstruction), and (iii)
“Equipment Breakdown,” if the project has central heating or cooling or other equipment or other applicable fixtures, equipment, or installation, which shall provide that the insurer’s
minimum liability per accident at least equals the lesser of two million dollars ($2,000,000) or the insurable value of the building containing the equipment.
Owner Responsibility for Payment of Deductible. If a loss occurs that is covered by a property insurance policy in the name of the Association and another property
insurance policy in the name of an Owner:
The Association’s policy provides primary insurance coverage, and:
the Owner is responsible for the Association’s policy deductible; and
the Owner’s policy, if any, applies to that portion of the loss attributable to the Association’s policy deductible.
An Owner that has suffered damage to any combination of a Residence or a Limited Common Area appurtenant to a Residence (“Residence Damage”) as part of a loss, resulting from a single
event or occurrence, that is covered by the Association’s property insurance policy (“a Covered Loss”) is responsible for an amount calculated by applying the percentage of total damage
resulting in a Covered Loss that is attributable to Residence Damage (“Residence Damage Percentage”) for that Residence to the amount of the deductible under the Association’s property
insurance policy; and
If an Owner does not pay the amount required under this Subsection within 30 days after substantial completion of the repairs to, as applicable, the Residence or the Limited Common Area
appurtenant to the Residence, the Association may levy an assessment against the Owner for that amount.
Claims Under the Deductible. If, in the exercise of its business judgment, the Board determines that a claim is likely not to exceed the Association’s policy deductible: (a) the Owner’s
policy is considered the policy for primary coverage to the amount of the Association’s policy deductible; (b) an Owner who does not have a policy to cover the Association’s property
insurance policy deductible is responsible for the loss to the amount of the Association’s policy deductible; and (c) the Association need not tender the claim to the Association’s
insurer.
Deductible Notice. The Association shall provide notice to each Owner of the Owner’s obligation under Subsection (2) above for the Association’s policy deductible and of any change in
the amount of the deductible. If the Association fails to provide notice of the initial deductible, it shall be responsible for the entire deductible in case of any loss. If the Association
fails to provide notice of any increase in the deductible, it shall be responsible for paying any increased amount that would otherwise have been assessed to the Owner. The failure
to provide notice shall not invalidate or affect any other provision in this Declaration.
The Association shall have no obligation to obtain or maintain any insurance covering Owners’ personal and real property, and each Owner shall be responsible for obtaining and maintaining
such personal and real property insurance.
8.3. Comprehensive General Liability (CGL) Insurance. The Association shall obtain CGL insurance insuring the Association, the agents and employees of the Association, and the Owners,
against liability incident to the use, ownership or maintenance of the Common Area or membership in the Association. The coverage limits under such policy shall not be less than one
million dollars ($1,000,000) covering all claims for death of or injury to any one person or property damage in any single occurrence. Such insurance shall contain a Severability of
Interest Endorsement or equivalent coverage which should preclude the insurer from denying the claim of an Owner because of the negligence acts of the Association or another Owner.
8.4. Director’s and Officer’s Insurance. The Association shall obtain Directors’ and Officers’ liability insurance protecting the Declarant, the Board, the officers, and the Association
against claims of wrongful acts and mismanagement. To the extent reasonably available, this policy shall include coverage for: (1) failure to maintain adequate reserves, (2) failure
to maintain books and records, (3) failure to enforce the Governing Documents, (4) breach of contract, (5) volunteers and employees, (6) monetary and non-monetary claims, (7) claims
made under fair housing act or similar statutes or that are based on discrimination or civil rights claims, and (8) defamation. In the discretion of the Board, the policy may also include
coverage for the Manager and its employees and may provide that such coverage is secondary to any other policy that covers the Manager or its employees.
8.5. Theft and Embezzlement Insurance. The Association may obtain insurance covering the theft or embezzlement of funds by Board Members, officers, employees, Manager, and contractors
of the Association in the discretion of the Board.
8.6. Workers’ Compensation Insurance. The Association shall purchase and maintain in effect workers’ compensation insurance for all employees of the Association to the extent that such
insurance is required by law and as the Board deems appropriate.
8.7. Certificates. Any insurer that has issued an insurance policy to the Association shall issue a certificate of insurance to the Association, and upon written request, to any Owner
or Mortgagee.
8.8. Named Insured. The named insured under any policy of insurance shall be the Association. Each Owner shall also be a named insured under the Association’s insurance policies as
required by law. The Declarant shall be listed by name as an additional insured under any and all policies of insurance during the Period of Declarant Control.
8.9. Owner Insurance. Each Owner shall be responsible to purchase and maintain in force appropriate hazard, content, property, and liability insurance as such Owner shall determine to
be appropriate to the Owner’s needs, Residence, personal property, and circumstances. It is recommended that Lot Owners obtain insurance covering at least the amount of the Association’s
property insurance deductible (widely recognized as an HO6 policy). The Association is not required to file claims on any of its policies for any damage or liability claim that either
should or would have been covered under any Owner’s policy.
8.10. Right to Negotiate Claims & Receive Proceeds. Insurance proceeds for a loss under the Association’s property insurance policy are payable to the Association, and shall not be
payable to a holder of a security interest. The Association shall hold any insurance proceeds in trust for the Association, Owners, and lien holders. Insurance proceeds shall be disbursed
first for the repair or restoration of the damaged property, if the property is to be repaired and restored as provided for in this Declaration. After any repair or restoration is complete,
any remaining proceeds shall be paid to the Association. If the property is not to be repaired or restored, or if there are remaining proceeds after repairs have been paid for, the
remaining proceeds may be distributed to the Owners and lien holders, as their interests remain with regard to the Residences or may be held as credits in accordance with each Owner’s
interest in the Association. Each Owner hereby appoints the Association as attorney-in-fact for negotiating all losses related thereto, including the collection, receipt of, and appropriate
disposition of all insurance proceeds; the execution of releases of liability; and the execution of all documents and the performance of all other acts necessary to administer such
insurance and any claim. This power-of-attorney is coupled with an interest, shall be irrevocable, and shall be binding on any heirs, personal representatives, successors, or assigns
of the Owner.
8.11. Owner Act Cannot Void Coverage Under Any Policy. Unless an Owner is acting within the scope of the Owner’s authority on behalf of the Association and under direct
authorization of the Association, an Owner’s act or omission may not void an insurance policy or be a condition to recovery under a policy.
8.12. Waiver of Subrogation against Owners and Association. All property and CGL policies must contain a waiver of subrogation by the insurer as to any claims against the Declarant,
the Association, and the Owners and their respective affiliates, agents, and employees.
ARTICLE IX. USE RESTRICTIONS
9.1. Use of Lots and Residences. Each Lot and Residence shall be used only as a single-family dwelling. Businesses, trades, or other nonresidential use may only be conducted on a Lot
or Residence as allowed by City zoning and ordinances. Business may only be permitted in residential Lots if only normal residential activities would be observable outside of the Residence;
the business activity does not involve persons coming on to the project who do not reside in the Project; the business activity does not involve the solicitation of Occupants or Owners;
the business will not result in the increase of the cost of the Association’s insurance; and that the activities would not be in violation of applicable local ordinances.
9.2. Use of Common Areas. The Common Areas shall be used only in a manner consistent with their community nature and with the use restrictions applicable to Lots and Residences. Owners
are not permitted to place anything in the Common Area without the consent of the Board.
9.3. Offensive or Unlawful Activities. No noxious or offensive activities shall be carried on upon any Lot, Residence, or Common Area, nor shall anything be done or placed on any Lot
or Common Area which interferes with or jeopardizes the quiet enjoyment of other Lots, Residences, or the Common Areas, or which is a source of annoyance to residents. No unlawful use
shall be made of a Lot or any part thereof, and all valid laws, zoning ordinances and regulations of all governmental bodies having jurisdiction thereof shall be observed. No use shall
be made of any Lot which would result in an increase in the cost of the Association’s insurance or which would cause the improvements within the Project or any part thereof to be uninsurable
against loss by fire or other perils included in insurance contracts, or cause such insurance to be canceled or suspected, or cause any company issuing such insurance to refuse renewal
thereof.
9.4. Parking, RVs, & Equipment. Parking of vehicles, recreational vehicles, machinery, and equipment shall be conducted on Owner’s Lots in conformance with local zoning and ordinances.
The Association reserves the right to adopt additional Rules governing the parking of vehicles and equipment if determined necessary for the proper operation of the Project.
9.5. Pets. Domestic pets may be kept in Residences in conformance with local government requirements. The Association reserves the right to adopt Rules expanding pet restrictions if
determined necessary for the proper operation of the Project.
9.6. Nuisances. No resident shall create, maintain or permit a nuisance in, on or about the Project. For purposes of this Section a “nuisance” includes any behavior which annoys, disturbs
or interferes with other residents and interferes with their right to the quiet and peaceful enjoyment of their property. The Board shall have the sole and absolute discretion and authority
to determine if an activity or condition constitutes a nuisance.
9.7. Signs. Owners may erect signs and flags in the project in accordance with City ordinances, or other applicable governmental entity with jurisdiction. The Association reserves
the right to adopt Rules expanding sign restrictions if determined necessary for the proper operation of the Project.
9.8. Leases. The leasing of Residences is permitted if conducted in compliance with City zoning and ordinances.
9.9. Variances. The Board may, at its option and in extenuating circumstances, grant variances from the restrictions set forth in this Declaration if the Board determines in its discretion:
(i) that the restriction would create an unreasonable hardship or burden on an Owner or Occupant, (ii) that a change of circumstances since the recordation of this Declaration has rendered
such restriction obsolete and unreasonable to enforce, or (iii) that the activity permitted under the variance will not have any adverse financial affect or any other substantial adverse
effect on the Association or other Owners and Occupants of the Project and is consistent with the high quality of life intended for residents of the Project. Any such variance shall
be unenforceable and without any effect whatsoever unless reduced to writing and signed by every member of the then-existing Board.
9.10. Declarant Exception. So long as the Declarant owns a Lot in the Project, the Declarant shall be exempt from the restrictions contained in this Article.
ARTICLE X. ARCHITECTURAL CONTROLS
10.1. Architectural Controls. The designs of all structures and Residences in the Project shall be limited to those approved by the Declarant during the Period of Declarant Control,
and afterwards by the Board. The Board shall act to insure that all improvements and landscaping within the Project harmonize with existing surroundings and structures. No landscaping,
grading, excavation, building, fence, wall, residence, or other structure, or alteration of any kind, shall be commenced, erected, maintained, improved, altered, or made until the construction
plans and specifications, have been approved in writing by the Declarant or the Board as applicable.
10.2. Design Guidelines. The Board may adopt Design Guidelines governing the permitted improvements within the Project. The Design Guidelines may designate the design, style, model,
and manufacturer of any materials to be used for an exterior improvement or alteration that is acceptable to the Board. The Design Guidelines may also designate landscaping requirements.
Such designations shall be for the purpose of ensuring a quality appearance and preservation of property values. Amendments to the Design Guidelines shall apply prospectively only.
They shall not require modifications to or removal of any structures previously approved once the approved construction or modification has begun. However, any new work on such structures
must comply with the Design Guidelines as amended.
10.3. Declarant’s Exemption. Nothing contained in this Declaration shall be construed to prevent the erection or maintenance by Declarant, or its duly authorized agents, of temporary
structures, trailers, improvements or signs necessary or convenient to the development, marketing, or sale of property within the Project. Furthermore, the provisions of this Declaration
which prohibit or restrict nonresidential use of Residences, regulate parking of vehicles, and restrict signage, banners, and the like, shall not prohibit the construction and maintenance
of model homes by Declarant and/or other persons engaged in the construction of residences within the Project. The Declarant may use Lots and other areas for parking in connection with
the showing of model homes or for vehicles necessary for development and construction activities.
10.4. Variances. The Board may authorize variances from compliance with any of the architectural provisions of this Declaration or Design Guidelines. Such variances must be in writing
and must be signed by all of the members of the Board. If a variance is granted, no violation of the Governing Documents shall be deemed to have occurred with respect to the matter
for which the variance was granted. The granting of a variance shall not operate to waive any Restrictions of the Governing Documents, other than those specifically identified in the
variance, nor shall it affect an Owner’s obligation to comply with all governmental laws and regulations.
10.5. Liability for Damages. The Board and the Declarant shall not be held liable for damages by reason of any action, inaction, approval, or disapproval by it made pursuant to this
Article.
ARTICLE XI. ENFORCEMENT
11.1. Compliance with Restrictions and Rules. Each Owner and Occupant shall comply with the Restrictions imposed by this Declaration. Further, each Owner, Occupant and guest shall fully
and faithfully comply with the Association’s Rules and Restrictions and shall be personally jointly and severally liable for any fines for violations thereof.
11.2. Enforcement of Governing Documents. The Association, Declarant, or any Owner shall have the right to enforce, by proceedings at law or in equity, each provision of this Declaration
and other Governing Documents, including the right to prevent any violation of such, and the right to recover damages and other sums for such violation(s). The prevailing party in any
action for the enforcement of any provisions of the Governing Documents (including but not limited to litigation and the appeal thereof) shall be entitled to collect court costs and
reasonable attorney fees. Failure to enforce any covenant or restriction within the Governing Documents shall in no event be deemed a waiver of the right to do so thereafter.
ARTICLE XII. SPECIAL DECLARANT RIGHTS
Improvements. Declarant hereby reserves the right, without obligation, to construct:
Any improvement shown on the Plat or included in the Project;
Any Lots and corresponding Residences upon all or any portion of the Additional Land, and subject to the requirements of Section 12.2, the addition of the same to the Project; and
Any other buildings, structures, or improvements that Declarant desires to construct in the Project, or any other real estate owned by Declarant, regardless of whether the same ever
become part of the Project.
Expandable Project. The Declarant herewith expressly reserves the right and option to expand the Project by the addition of Additional Land, or portions thereof, and Lots and Residences
to be constructed thereon, in accordance with the provision of this Section.
The Project may be expanded by the addition of any real property designated by Declarant.
Expansion or contraction of the Project by the Declarant is without limitation and shall be effective without prior approval of the Association or any Owner.
Declarant’s right to expand or contract the Project shall not expire until the Declarant elects in writing to not add land to the Project or the Period of Declarant Control expires.
Additional Land may be added in total or in part, in any order, by using any procedure or manner as Declarant may determine.
To submit or withdraw land to or from the Project, the Declarant shall record a Supplemental Declaration in the office of the County Recorder setting forth that an expansion or contraction
of the Project has occurred. Such Supplemental Declaration shall include: (i) a description of the land added or withdrawn; and (ii) shall reference this Declaration and state that
the provisions of this Declaration apply to the added land, or that the withdrawn land is no longer subject to the provisions of this Declaration.
12.3. Special Declarant Rights. Special Declarant Rights are those rights reserved for the benefit of the Declarant in this Declaration and the Governing Documents and shall include,
among others, and regardless of anything in the Declaration to the contrary, the following rights, which shall remain in effect for the maximum period allowed by law, which may exceed
the Period of Declarant Control:
the right to maintain sales offices, model Residences, and signs advertising the Project or any Residence at any location in the Project;
the right to use easements through the Common Areas as set forth in this Declaration;
the right to dedicate the roads and streets within the Project for and to public use, to grant road easements with respect thereto, and to allow such street or road to be used by owners
of adjacent land;
the right to convert any part of the Project to a different regime of residential ownership;
the right to create or designate additional Common Area within the Project;
the exclusive right to act as the Board of Directors, or appoint or remove Board Members in Declarant’s sole discretion, during the Period of Declarant Control;
unless expressly and specifically bound by a provision of the Governing Documents, Declarant shall be exempt from the provisions of the Governing Documents;
the right to withdraw land from the Project for up to fifteen (15) years from the date this Declaration is recorded in the office of the Madison County Recorder;
the right to set all assessments for the Association including annual, special, and individual assessments;
the right to set all fines and fees for the Association including but not limited to collection fees, reinvestment fees, architectural review fees, and fines for violations of Association
Rules;
the exclusive right to amend the Declaration, Bylaws, Plat, and Rules of the Association without approval from any Members;
the right to cast all votes on behalf of all Owners for the conveyance or modification of Common Area as may be required by State law;
the right to create Service Areas and assign Lots thereto;
the right to exert any right allowed to the Board or the Association pursuant to State law and this Declaration;
the right to make and adopt Association Rules; and
the Declarant shall have no duty whatsoever to obtain a reserve analysis, or to fund any reserve fund during the Period of Declarant Control.
Exercising Special Declarant Rights. Declarant may exercise the Special Declarant Rights at any time prior to the later to occur of the date on which the Period of Declarant Control
expires or the date when the Declarant relinquishes such rights in writing. Declarant may exercise its Special Declarant Rights in any order, and no assurance is given as to the order
in which Declarant will exercise them. If Declarant exercises any Special Declarant Right with respect to any portion of the Project, Declarant may, but is not obligated to, exercise
that Special Declarant Right with respect to any other portion of the Project. Notwithstanding anything to the contrary contained in this Declaration, Declarant may exercise any Special
Declarant Right described in this Article and any other right reserved to the Declarant in this Declaration, without the consent of the Association or any Owners.
Interference with Special Declarant Rights. Neither the Association nor any Owner may take any action or adopt any Rules that interferes with or diminishes any Special Declarant right
contained in this Declaration without Declarant’s prior written consent. Any action taken in violation of this Section shall be null and void and have no force or effect.
Transfer of Special Declarant Rights. The Declarant may transfer, convey, or assign its rights created or reserved under this Declaration to any Person in whole or in part. The Declarant’s
successor shall enjoy any and all Declarant rights set forth in the Declaration regardless of whether such rights are stated to be transferable. All references in the Governing Documents
to Declarant shall equally apply to its successor. A contract transferring the Declarant’s rights may, but shall not be required to, be recorded in the office of the County Recorder.
Changes by Declarant. Nothing contained in this Declaration shall be deemed to affect or limit in any way whatsoever the right of the Declarant, its successors or assigns, to sell or
to change the location, design, method of construction, grade, elevation, or any other part or feature of a Lot and Residence prior to the contracting for the conveyance of the Lot
to a purchaser.
12.8. Easements Reserved to Declarant.
1) The reservation to Declarant, its successors and assigns, of non-exclusive easements and rights of way over those strips or parcels of land designated or to be designated on the Plat
as “Public Utility Easement,” or otherwise designated as an easement area over any road or Common Area on the Project, and over those strips of land running along the front, rear, side
and other Lot lines of each Lot shown on the Plat.
2) An easement for the installation, construction, maintenance, reconstruction and repair of public and private utilities to serve the Project and the Lots therein, including but not
limited to the mains, conduits, lines, meters and other facilities for water, storm sewer, sanitary sewer, gas, electric, telephone, cable television, and other public or private services
or utilities deemed by Declarant necessary or advisable to provide service to any Lot, or in the area or on the area in which the same is located.
3) The reservation to Declarant of an easement granting the privilege of entering upon the Common Areas for such purposes and making openings and excavations thereon, which openings
and excavations shall be restored in a reasonable period of time, and for such alterations of the contour of the land as may be necessary or desirable to affect such purposes.
4) The reservation to the Declarant and its successors and assigns, of a non-exclusive easement and right-of-way in, through, over and across the Common Area for the storage of building
supplies and materials, parking of construction vehicles, erection of temporary structures, trailers, improvements or signs necessary or convenient to the development of the Project,
and for all other purposes reasonably related to the completion of construction and development of the Project and the provision of utility services, and related services and facilities.
5) The Declarant reserves unto itself and its successors and assigns, the right to dedicate all of said roads, streets, alleys, rights of way, or easements, including easements in the
areas designated as “open space” and storm water management reservation, to public use all as shown on the Plat. No road, street, avenue, alley, right of way or easement shall be laid
out or constructed through or across any Lot or Lots in the Project except as set forth in this Declaration, or as laid down and shown on the Plat, without the prior written approval
of the Declarant.
6) Declarant further reserves unto itself and its successors and assigns, the right at or after the time of grading of any street or any part thereof for any purpose, to enter upon any
abutting Lot and grade a portion of such Lot adjacent to such street, provided such grading does not materially interfere with the use or occupancy of any structure built on such Lot,
but Declarant shall not be under any obligation or duty to do such grading or to maintain any slope.
12.9. No Modification of Declarant Rights. The Special Declarant Rights in this Declaration or other Governing Documents, and specifically in this Article, shall not be substantively
or procedurally altered, amended, or removed without the written consent of the Declarant until at least six (6) years have passed after the Period of Declarant Control has ended, at
which time the Declarant’s approval shall no longer be required. Any document or amendment attempted without obtaining proper consent shall be void ab initio to the extent it attempts
to alter the rights of the Declarant or any provision of this Article without the consent of the Declarant.
ARTICLE XIII. RIGHTS OF FIRST MORTGAGEE
13.1. Title in Mortgagee. Any first Mortgagee who obtains title to a Lot pursuant to the remedies provided in the Mortgage or foreclosure of the Mortgage will not be liable for such
Lot’s Assessments or charges which accrue prior to the acquisition of title of such Lot by the Mortgagee. However, such first Mortgagee shall be responsible for all Assessments levied
while it holds title to the Lot.
13.2. Notice of Default by Owner. If an Owner neglects, for a period of sixty (60) days or more, to cure any failure on his part to perform his obligations under this Declaration or
other Governing Documents, the Association, upon written request from the Mortgagee, shall give written notice of such fact to the Mortgagee covering such Owner's Lot.
13.3. Priority. No provision herein is intended, nor shall it be construed, to give any Lot Owner, or any other party, priority over any rights of the first Mortgagee of a Lot pursuant
to its Mortgage in the case of a distribution to such Lot Owner of insurance proceeds or condemnation awards for losses to or a taking of Common Areas.
ARTICLE XIV. RIGHT OF ENTRY
14.1. Right to Enter Lots. The Association acting through the Board or its duly authorized agent shall have the right at all times and upon reasonable notice of at least 48 hours to
enter upon any Lot on the areas located outside the exterior boundaries of a Residence, without trespass, and regardless of whether or not the Lot Owner or Occupant thereof is present
at the time, to abate any infractions, to fulfill its responsibilities, to exercise its rights, to make repairs, and to correct any violation of any of the Governing Documents. The
48-hour notice set forth in this Section shall not be necessary in case of an emergency threatening other Residences, Occupants, or other parts of the Project. Nothing in this Section
shall be construed to authorize the entry of the Association into the interior of a Residence (even in the event of an emergency) without the consent of the Lot Owner and under any
terms or conditions set forth by such Owner. Owners shall maintain up-to-date emergency contact information records with the Association, including any local representative an Owner
may have for notice purposes. Owners shall be responsible for any costs incurred by the Association as a result of entering a Lot under this Section and shall defend, indemnify and
hold harmless the Association for all damages related to such entry, except for such damages resulting from intentional or willful misconduct.
ARTICLE XV. AMENDMENTS
Amendments by Declarant. So long as the Declarant owns one or more Lots in the Project or any part of the Additional Land, the Declaration and the Plat may be amended solely by the Declarant
without any additional approval required. In addition, no other amendment shall be valid or enforceable without the Declarant’s prior written consent so long as Declarant owns one or
more Lots in the Project or any part of the Additional Land. Amendments shall become effective upon recordation in the office of the County Recorder. Declarant's right to amend shall
be construed liberally and shall include, without limitation, the right to amend and/or restate this Declaration in part or in its entirety.
Amendments by Association. After all of Declarant’s Lots have been sold to third parties, all Additional Land has been annexed into the Project, and the Period of Declarant Control has
expired, this Declaration may be amended upon the affirmative vote of at least sixty-seven percent (67%) of the voting interests of the Association. No meeting shall be required for
an amendment if the required vote for approval is obtained by written consent or ballot. Any amendment(s) shall be effective upon recordation in the office of the Madison County Recorder.
In such instrument, the Board shall certify that the vote required by this Section for amendment has occurred. If a Lot is owned by more than one Owner, the vote of any one Owner shall
be sufficient to constitute approval for that Lot under this Section. If a Lot is owned by an entity or trust, the vote of any one officer, trustee, or agent of the entity shall be
sufficient to constitute approval for that Lot under this Section. No signature or acknowledgment of any signature used for voting shall be required. Notwithstanding, the foregoing,
the Members’ authority to amend Articles XII and XVI of this Declaration is subject to the amendment restrictions set forth therein, and any amendment purporting to modify the provisions
of Articles XII and XVI shall be null and void unless such amendment is in compliance with the amendment provisions and restrictions therein.
Necessary Amendments. Declarant or the Association may unilaterally amend this Declaration without Owner vote if such amendment is necessary: (a) to bring any provision into compliance
with any applicable governmental statute, rule, regulation, or judicial determination; (b) to satisfy the requirements of any local, State, or Federal governmental
agency; or (c) to correct any scrivener's error. However, any such amendment occurring after the Period of Declarant Control shall not adversely affect the title to any Lot unless the
Owner shall consent in writing.
ARTICLE XVI. DISPUTE RESOLUTION
Alternative Dispute Resolution Without Litigation.
Bound Parties. The Declarant; the Association; the Owners; the officers, directors, managers, members, employees, representatives, agents, successors and assigns of any of the foregoing;
any other person subject to this Declaration; and any other person not otherwise subject to this Declaration who agrees to submit to this Article (collectively, “Bound Parties”), agree
that it is in the best interest of all Bound Parties to encourage the amicable resolution of Claims without the emotional and financial costs of litigation or the toll or market taint
such litigation can have on the value of the Project and/or the Lots that may be involved or impacted. Accordingly, each Bound Party agrees not to file suit in any court with respect
to a Claim described in subsection (b), unless and until it has first submitted such Claim to the alternative dispute resolution procedures set forth in Section 16.2 in a good faith
effort to resolve such Claim.
Claims. As used in this Article, the term “Claim” means any claim, grievance, or dispute arising out of or relating to:
the interpretation, application, or enforcement of the Governing Documents;
the rights, obligations, and duties of any Bound Party under the Governing Documents; or
the design or construction of improvements on the Project, other than matters of aesthetic judgment to be determined by the Association or Board under the Design Guidelines and other
provisions hereof, which shall not be subject to review and shall not be subject to this Article.
Exclusion from Definition of Claims. The following shall not be considered “Claims” unless all Parties to the matter otherwise agree to submit the matter to the procedures set forth
in Section 16.2:
any suit by the Association to collect assessments or other amounts due from any Owner;
any suit by the Association to obtain a temporary restraining order (or emergency equitable relief) and such ancillary relief as the court may deem necessary in order to maintain the
status quo and preserve the Association’s ability to enforce the provisions of Article X of this Declaration (relating to the Design Guidelines);
any suit that does not include the Declarant, any affiliate of the Declarant, or the Association as a party, if such suit asserts a Claim that would constitute a cause of action independent
of the Governing Documents;
any dispute that affects the material rights or obligations of a party who is not a Bound Party and has not agreed to submit to the procedures set forth in Section 16.2;
any suit as to which any applicable statute of limitations would expire within 180 days of giving the Notice required by Section 16.2(a), unless the party or
parties against whom the Claim is made agree to toll, or extend, the Claim’s statute of limitations to comply with this Article;
any suit or dispute between the Declarant or an affiliate of Declarant and a builder, developer, contractor(s), subcontractor(s), or any other party contracted by the Declarant or an
affiliate of the Declarant in connection with the development of the Project; and
any suit or dispute involving a governmental entity as a party.
Dispute Resolution Procedures.
Notice. The Bound Party asserting a Claim (“Claimant”) against another Bound Party (“Respondent”) shall give written notice (“Notice”) by mail or personal delivery to each Respondent
and to the Board, stating plainly and concisely:
the nature of the Claim, including the persons involved and the Respondent’s role in the Claim;
the legal basis of the Claim (i.e., the specific authority out of which the Claim arises);
the Claimant’s proposed resolution or remedy;
that the person alleged to be responsible for the acts giving rise to the Claim shall have six (6) months to cure or resolve the Claim; and
the Claimant’s desire to meet with the Respondent to discuss, in good faith, ways to resolve the Claim.
Right to Cure. For any Claim arising from a dispute over the construction of improvements within the Project, the Claimant shall provide Respondent six (6) months to rectify alter, or
fix the claimed defect(s) in the improvements. The expiration of this six-month cure period shall be a prerequisite to Claimant’s ability to initiate litigation as permitted under Section
16.3 below. For all Claims involving alleged defects in construction, the negotiation, mediation, and settlement requirements shall remain in effect during the cure period, however,
the mediation deadline set forth in subsection (d) below shall be extended to expire on the same date the cure period expires.
Negotiation. The Claimant and Respondent shall make every reasonable effort to meet in person and confer for the purpose of resolving the Claim by good faith negotiation. If requested
in writing, accompanied by a copy of the Notice, the Board may appoint a representative to assist the parties in negotiating a resolution of the Claim.
Mediation. If the parties have not resolved the Claim through negotiation within 30 days of the date of the Notice (or within such other agreed upon period), the Claimant shall have
30 additional days to submit the Claim to mediation with an individual or entity designated by the Association (if the Association is not a party to the Claim) or to an independent
mediator providing dispute resolution services predominately in Idaho. Each Bound Party shall present the mediator with a written summary of the Claim or will otherwise comply with
the mediator’s proscribed procedures and requirements for mediating claims.
Waiver of Claim for Failure to Appear or Participate. If the Claimant does not submit the Claim to mediation within such time, or does not appear for and participate in good faith in
the mediation when scheduled, the Claimant shall be deemed to have waived the Claim, and the Respondent shall be relieved of any and all liability to the Claimant (but not third parties)
on account of such Claim.
Termination of Mediation Proceedings. If the parties do not settle the Claim within 30 days after submission of the matter to mediation, or within such time as determined reasonable
by the mediator, the mediator shall issue a notice of termination of the mediation proceedings indicating that the parties are at an impasse and the date that mediation was terminated.
The Claimant shall thereafter be entitled to file suit or to initiate administrative proceedings on the Claim, as appropriate.
Costs of Mediation. Each Bound Party shall bear its own costs of the mediation, including attorney fees, and each Party shall pay an equal share of the mediator’s fees.
Settlement. Any Claim settlement through negotiation or mediation shall be documented in writing and signed by the Parties. If any Party thereafter fails to abide by the terms of such
agreement, then any other party may file suit or initiate such proceedings as are necessary to enforce such agreement without the need to comply again with the procedures set forth
in this Article. In such event, the party taking action to enforce the agreement or award shall, upon prevailing, be entitled to recover from the non-complying party (or if more than
one non-complying party, from all such parties in equal proportions) all costs incurred in enforcing such agreement or award, including, without limitation, attorney fees and court
costs.
Initiation of Litigation by Association. After expiration of the Period of Declarant Control the Association may not bring a legal action against a Declarant, a Board of Directors, an
employee, an independent contractor, an agent of the Declarant, or the previous Board of Directors related to the Period of Declarant Control unless:
The Right to Cure period set forth in Section 16.2(b) above has expired;
the legal action is approved in advance at a meeting by Owners holding at least 51% of the total allocated voting interests of the Owners in the Association:
Owners may be represented by a proxy specifically assigned for the purpose of voting to approve or deny the proposed legal action at the meeting. Any such proxy shall not be valid unless
the proxy is notarized with each Owner certifying that they have received and reviewed the information required by Section 16.4(a) and (b) below.
the Association provides each Owner with the items described in Section 16.4(a) and (b), below;
the Association establishes a trust account, described in Section 16.4(c) below; and
the Association first goes through the procedures described in Section 16.2 above, giving notice and an opportunity to resolve the dispute that is the basis of the Claim and proposed
legal action.
The procedures and approval required in the preceding subsections (a) through (e) shall not be required for actions or proceedings:
initiated by Declarant during the Period of Declarant Control on behalf of the Association;
initiated to enforce the provisions of this Declaration, including collection of assessments and foreclosure of liens;
initiated to challenge ad valorem taxation or condemnation proceedings (including bringing an action for inverse condemnation);
initiated against any contractor, vendor, or supplier of goods or services arising out of a contract for services or supplies; or
to defend claims filed against the Association or to assert counterclaims in proceedings instituted against it.
This Section shall not be amended without the written consent of the Declarant for a period of 10 years following the expiration of the Period of Declarant Control. Any such amendment
shall also be approved by a vote of 67% of the total votes of the Association.
Informed Vote. Before the Owners, as Members of the Association may vote to approve the filing of a legal action for a Claim, the Association shall first provide each Owner with:
A written notice stating:
that the Association is contemplating legal action;
the percentage vote required for approval of the litigation;
the date, time, and location of any Member meeting that has been scheduled to discuss the litigation or to vote on the approval of the litigation;
a description of the claims that the Association desires to pursue in sufficient detail to permit each Member to reach an informed decision on the litigation matter; and
A written report from an attorney licensed to practice in Idaho, which provides an assessment of:
The likelihood that the legal action will succeed;
The likely amount in controversy in the legal action;
The likely cost of resolving the legal action to the Association’s satisfaction; and
The likely effect the stigma of a legal action will have on value or on an Owner’s ability to market for sale, or a prospective Lot buyer’s ability to obtain financing for a Lot due
to a pending legal action.
In providing this report, the attorney shall obtain and rely on reports and assessments from experts in their field such as construction, real property, sales, or any other relevant
factor in the contemplated litigation.
Before the Association commences any legal action as authorized above, the Association shall:
allocate an amount equal to 25% of the cost estimated to resolve the Claim not including attorney fees; and
place the 25% allocated funds in a trust account that the Association may only use to pay the costs to resolve the Claim.
Sections 16.3 and 16.4 do not apply if the Association brings a legal action that has an amount in controversy of less than $25,000.00.
16.5. Strict Compliance Required. Any post-turnover litigation involving the Bound Parties shall strictly comply with each of the provisions in this Article. The Bound Parties hereby
covenant, stipulate, and agree that in the event the Bound Parties fail to satisfy the prerequisites set forth herein, the non-compliant Party will indemnify, defend, hold harmless,
and exculpate the other Bound Party to the fullest extent permissible by law, and the non-
breaching Bound Party shall be entitled to recover any and all attorney fees and costs expended as a result of enforcing this Article, which fees and costs may include, without limitation,
pre-litigation attorney fees, costs incurred in connection with investigation of potential claims, including expert and consultant fees, testing fees, contractor fees, and insurance
deductibles. If any claims or actions falling within the scope of this Article are filed without satisfying all of the requirements set forth above, such claims or actions shall be
dismissed without prejudice and shall not be re-filed unless and until all such requirements have been satisfied.
16.6. Owner Warranties. The Declarant may provide certain warranties to the Owners related to a Lot purchased. The first Owner of a Lot to whom any warranty is issued, or with whom a
legal warranty arises, and only that Owner, shall have the right to directly enforce and seek performance from the Declarant of any terms of the warranty, and only consistent with the
warranty itself. The Association shall have no right to seek the performance of or take assignment of any rights in any warranties against the Declarant, and the Owner shall have no
right to assign any rights of any kind to the Association related to pursuing litigation against the Declarant.
16.7. Unless specifically set forth in this Declaration, no action may be brought by the Association, its Board, or its Officers on behalf of an Owner, as its respective interest may
appear, with respect to any cause of action relating to the Common Areas and facilities.
16.8. ALL PARTIES HEREBY AGREE TO RESOLVE ANY CLAIM ACCORDING TO THE PROVISIONS OF THIS ARTICLE AND SUCH PARTIES WAIVE THEIR RESPECTIVE RIGHTS TO PURSUE THE CLAIM IN ANY MANNER OTHER
THAN AS PROVIDED IN THIS ARTICLE.
16.9. The dispute resolution restrictions contained in this Article shall not be amended, altered, or eliminated from the Declaration without the written consent of the Declarant for
a period of 10 years after the expiration of the Period of Declarant Control.
ARTICLE XVII. MISCELLANEOUS
17.1. Notices. Any notice required or permitted to be given to any Owner according to the provisions of this Declaration shall be deemed to have been properly furnished if personally
delivered, emailed, texted, or if mailed, postage prepaid, to the Person who appears as an Owner, at the latest email or mailing address for such Person appearing in the records of
the Association at the time notice is sent. If no email, phone number, or mailing address has been provided, the physical address of the Lot owned by said Owner shall be used for notice
purposes. The use of the term “written notice” in this Declaration or other Governing Document shall include notices sent via email, text, facsimile, or other electronic communication;
or notices printed on paper and sent by hand-delivery, regular mail, or any notice otherwise physically received by an Owner.
Unless an Owner notifies the Association in writing that they desire to receive notices via USPS mail, each Owner shall provide to the Board, or the Association’s Manager, an email address
that the Association may use to affect notice as described herein, along with a telephone number that can receive texts. Any notice sent via email or text shall be deemed to be delivered
once the notice has been sent to the email address or phone number on file with the Association. Any notice sent by mail shall be deemed delivered when deposited in the United States
mail. In the case of co-Owners, any such notice may be delivered or sent to any one of the co-Owners on behalf of all co-Owners and shall be deemed delivered to all such co-Owners.
The declaration of an officer or authorized agent of the Association declaring under
penalty of perjury that a notice has been sent to any Owner or Owners, in any manner that this Section allows, shall be deemed conclusive proof of such delivery.
Notice to the Association shall be delivered by registered or certified United States mail postage prepaid, addressed to the office of the Manager of the Association (if any); or if
there is no Manager, the Registered Agent with the Idaho Secretary of State (if any); or if there is none, to the President of the Association. The Association shall have the right
to designate an email or USPS mailing address for receipt of notices hereunder by Rule.
17.2. Consent in Lieu of Voting. In any case in which this Declaration requires authorization or approval of a transaction the assent or affirmative vote of a stated percentage of the
votes present or represented at a meeting, such requirement may be fully satisfied by obtaining, with or without a meeting, consents in writing to such transaction from Members entitled
to cast the required percentage of membership votes. The Association may use any method allowed under State law.
17.3. Dissolution. The Association may be dissolved by the Declarant at any time during the Period of Declarant Control in its sole discretion and thereafter by a vote of at least ninety
percent (90%) of the Owners. Upon dissolution, the Association shall transfer any Common Area real property it owns to a municipality, utility, or other person as permitted by law and
disperse any remaining funds or assets to the Owners pro rata. In the event such dedication or transfer is not made or is not accepted, the Association's assets shall be transferred
to a nonprofit corporation, trust, or other entity to be used for the benefit of all Owners in the Project, and each Owner shall continue to be obligated to make assessment payments
for the maintenance and upkeep of the Common Areas, on a pro rata basis which conforms substantially with the assessment procedures and terms set forth herein.
17.4. Interpretation and Severability. The captions which precede the Articles and Sections of this Declaration are for convenience only and shall in no way affect the manner in which
any provision hereof is constructed. Whenever the context so requires, the singular shall include the plural, the plural shall include the singular, the whole shall include any part
thereof, and any gender shall include the other. The invalidity or unenforceability of any portion of the Declaration shall not affect the validity or enforceability of the remainder
hereof. Except for judicial construction, the Board, shall have the exclusive right to construe and interpret the provisions of this Declaration. In the absence of any adjudication
to the contrary by a court of competent jurisdiction, the Association's construction or interpretation of the provisions hereof shall be final, conclusive and binding as to all Persons
and property benefitted or bound by the covenants and provisions hereof.
17.5. Covenants to Run with Land. This Declaration and all provisions hereof shall constitute covenants to run with the land, and shall be binding upon and shall inure to the benefit
of the Association and all parties who hereafter acquire any interest in a Lot or in the Common Areas shall be subject to the terms of this Declaration and the provisions of any Rules,
agreements, instruments, and determinations contemplated by this Declaration. Any failure to comply with any of the foregoing shall be grounds for an action by the Association or an
aggrieved Owner for the recovery of damages, or for injunctive relief, or both. By acquiring any interest in a Lot or in the Common Areas, the party acquiring such interest consents
to, and agrees to be bound by, each and every provision of this Declaration.
17.6. Fair Housing Accommodations. Notwithstanding anything to the contrary in this Declaration, the Association, upon receipt of a written opinion from its counsel that such action
is required, may make or permit reasonable accommodations or modifications to the Project that are otherwise prohibited by the Governing Documents, as required under State or
Federal Fair Housing Acts, to accommodate a Person with a disability (as defined by State or Federal law at the time the accommodation is requested). Reasonable accommodations or modifications
may include modifications to a Lot, the Common Area facilities and buildings, or deviations from provision of the Governing Documents. Any such modification and accommodation made under
this Section shall not act as a waiver of the provisions of the Governing Documents with regard to any other Person or Owner.
17.7. No Waiver. No delay or failure by the Association or by any Owner to enforce any Restriction, right, remedy, power, or provision herein contained, or contained in the Bylaws,
Articles, or the Rules, in any certain instance or on any particular occasion (or partial exercise thereof) shall be deemed a waiver of such right of enforcement as to any such future
breach of the same or any other Restriction, right, remedy, power, or provision. No Association delay or failure to demand strict adherence to the terms, Restrictions or provisions
of the Governing Documents shall be deemed to constitute a course of conduct inconsistent with the Association’s right at any time, before or after an Owner violation or breach, to
demand strict adherence to the terms, Restrictions, or provisions of this Declaration or other Governing Document.
17.8. Condemnation. If a portion of the Common Area is taken by eminent domain, or sold under threat thereof, and the taking does not include any Lot, the Board shall cause the award
to be utilized for repairing or restoring that area adjacent to the taking, and the portion of the award not used for restoration shall be added to the general funds of the Association.
If a Lot is taken by eminent domain, or sold under threat thereof, leaving the Owner with a remnant that may not be practically or lawfully used for any purpose permitted by this Declaration,
then that Lot’s interest in the Common Areas shall be reallocated to the remaining Lots in proportion to their respective interests immediately before the taking.
17.9. Attorney Fees. If the Association utilizes legal counsel to enforce any Restriction, or after an Owner communicates or demonstrates an intent not to comply with a Restriction,
the Association may assess all reasonable attorney fees and costs associated with such enforcement to the Owner as an Individual Assessment, regardless of whether a lawsuit is initiated
or not. The term “costs” as used in this Section shall include all costs including but not limited to copying costs, deposition costs, expert witness fees, investigative costs, service
costs, and filing fees paid to courts. “Costs” is specifically defined in this Section to be broader and to include costs that are not included in costs as the term is used in the Idaho
Rules of Civil Procedure.
17.10. Noncompliance Notice. Any construction, alteration, or other work done in violation of this Declaration shall be deemed to be in noncompliance. By acquiring title to a Lot in
the Project, all Owners agree and consent that upon any act of noncompliance, the Board, at its discretion, may record a “Notice of Noncompliance” on an offending Lot or property in
the records of the County Recorder. Upon receipt of a Notice of Noncompliance, Owners shall, at their own cost and expense, remove such non-conforming construction, alteration, or other
work and shall restore the land to substantially the same condition as existed prior to the non-conforming construction, alteration, or other work. Should an Owner fail to act as required
hereunder, the Board or their designee, without liability for trespass or nuisance, shall have the right to enter the property, remove the violation, and restore the property to substantially
the same condition as existed prior to the change. All costs incurred by the Association pursuant to enforcement of this Section shall be an Individual Assessment.
17.11. Security. The Declarant or Association shall in no way be considered an insurer or guarantor of security within or relating to the Project, including any Common Area in which
the Association may have an obligation to maintain, and the Association shall not be held liable for any loss or damage by reason of any failure to provide adequate security or any ineffectiveness
of security measures undertaken. Owners agree by purchasing a Lot in this Association that the Association, Declarant, and the Board are not insurers of the safety or well-being of
Owners or Occupants or of their personal property, and that each Owner or Occupant assumes all risks for loss or damage to persons, the Lots, the Common Areas, and to the contents of
improvements located thereon to the extent not insured by the Association. EACH OWNER AND OCCUPANT UNDERSTANDS AND ACKNOWLEDGES THAT THE ASSOCIATION, DECLARANT, AND BOARD HAVE NOT MADE
ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND AND THAT EACH OWNER OR OCCUPANT HAS NOT RELIED UPON ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, RELATIVE TO THE SECURITY OF THE PROJECT.
17.12. Effective Date. The Declaration and any amendment hereof shall take effect upon its filing in the office of the Madison County Recorder.
* * * *
IN WITNESS WHEREOF, the Declarant has caused this Declaration to be executed by a duly authorized representative this ___ day of _______________, 2025.
DECLARANT
AKAROA PROPERTIES, LLC
a Utah limited liability company
By:
Name:
STATE OF _____________ )
) ss. Title:
COUNTY OF ___________ )
On the ____ day of ________________, 2025, personally appeared before me _______________________________ who by me being duly sworn, did say that she/he is an authorized representative
of Akaroa Properties, LLC, and that the foregoing instrument is signed on behalf of said company and executed with all necessary authority.
Notary Public: ____________________________
EXHIBIT A
LEGAL DESCRIPTION
All of ROSEWOOD TOWNHOMES, according to the official plat filed in the office of the Madison County Recorder.
More particularly described as:
EXHIBIT B
BYLAWS
OF
ROSEWOOD TOWNHOME OWNERS ASSOCIATION
These BYLAWS OF ROSEWOOD TOWNHOME OWNERS ASSOCIATION are effective upon recording in the Madison County Recorder's Office.
RECITALS
The Association is organized for all lawful purposes for which a nonprofit corporation may be organized under the Idaho Nonprofit Corporation Act, as amended, subject to the terms and
conditions contained in the Declaration and Articles of Incorporation.
These Bylaws are adopted to complement the Declaration, to further define the rights of the Association and the Owners, to provide for the ability to effectively govern and operate the
Association and the Project known as the Rosewood Townhome Owners Association and, to further the Association's efforts to provide a quality living environment.
ARTICLE I
DEFINITIONS
1.1 Except as otherwise provided herein or as may be required by the context, all capitalized terms used herein shall have the same meaning and effect as used and defined in the Declaration
of Covenants, Conditions and Restrictions for Rosewood Townhome Owners Association.
ARTICLE II
APPLICATION
2.1 All present and future Owners, Mortgagees, Occupants, and their invitees and guests, and any other persons who may use the facilities of the Project in any manner are subject to
these Bylaws, the Declaration, and Rules. The mere acquisition or rental of any of the Residences or the mere act of occupancy or use of any said Residences or the Common Areas will
signify that these Bylaws, the Declaration, and the Rules are accepted, ratified, and will be complied with by said persons.
ARTICLE III
MEETINGS
Annual Owner Meeting. The Annual Meeting of the Owners shall be held each year on a day and time established by the Board of Directors. At such Annual Meeting, the President shall report
on the activities and financial condition of the Association and Board Members shall declare any conflict of interest or familial relationship that exists with respect to such Board
Member and any person or entity who has previously entered into or seeks to enter into a service contract with the Association. The purposes of the Annual Meeting may include the election
of Board Members, the distribution of financial reports and budget, a review of any revisions to the Rules, distributing the most recent reserve study, and to transact such other business
as may come before the meeting. If the election of Board Members cannot be held during the Annual Meeting, or at any adjournment thereof, the Board shall cause the election
to be held at a Special Meeting of the Owners to be convened as soon thereafter as may be convenient or at the next Annual Meeting. The Board may from time to time by resolution change
the month, date, and time for the Annual Meeting.
Special Meetings. Special Meetings of the Owners may be called by a majority of the Board, the Declarant, the President, or upon the written request of Owners in accordance with Idaho
Code § 30-30-502. Any written request for a Special Meeting presented by the Owners shall be delivered to the President and shall include the original signature of each Owner affirmatively
supporting such request along with a complete statement of the purpose of the meeting on each page containing signatures. The President shall then call and provide notice of the Special
Meeting within 30 days of receipt of the Owner request. Notice of Special Meetings of the Owners shall be given to Owners in accordance with Section 3.4 of these Bylaws.
Place of Meetings. The Board may designate any place in Madison County that is reasonably convenient for the Owners as the place of any Owner meeting. In addition, the Association may
hold and conduct Owner meetings through any type of electronic means that allows Owners to communicate orally in real time including telephone and video conferencing.
Notice of Meetings. The Board shall cause fair and reasonable written or printed notice of the date, time, and place to be delivered to all Owners for all Owner meetings. Such notice
shall include:
For Annual Meetings of the Owners, the description of any matter or matters that must be approved by Owners in accordance with Idaho Code § 30-30-505(3)(b); and
For Special Meetings of the Owners, the matter or matters for which the Special Meeting is called.
Such written or printed notice shall be delivered to each Owner of record entitled to vote at such meeting not more than sixty (60) nor less than ten (10) days prior to the meeting.
Such notice may be sent via email, text, hand-delivery, or regular mail. If sent by email or text, such notice shall be deemed delivered and effective on the date transmitted to the
Owner’s email address or telephone number registered with the Association. If the notice is mailed by other than first class or registered mail, it shall be mailed at least thirty (30)
days prior to the meeting. If mailed, such notice shall be deemed to be delivered and effective on the date deposited in the U.S. mail if addressed to the Owner's address registered
with the Association. Each Owner shall register with the Association such Owner's current email address, phone number, and mailing address for purposes of notice hereunder. Such registered
email, phone number, and mailing address may be changed from time to time by notice in writing to the Association. If no address is registered with the Association, an Owner's Residence
shall be deemed to be the Owner's registered address and notice to the Residence address may be made by first-class mail or by posting the meeting notice on the front door. An Owner
may opt out of receiving notices from the Association via email or text by giving written notice to the Board stating that the Owner will not accept notices by way of email or text.
Qualified Voters. An Owner shall be deemed to be in “good standing” and “entitled to vote” at any meeting if he or she has fully paid his or her Assessment account (together with any
interest and/or late fees) at least 48 hours prior to the commencement of the meeting and is not in violation of any provision of the Governing Documents.
Record Date for Notice Purposes. The Board may designate a record date, which shall not be more than sixty (60) nor less than ten (10) days prior to the meeting, for the
purpose of determining Owners entitled to notice of any meeting of the Owners. If no record date is designated, the last date on which a notice of the meeting is mailed or delivered
shall be deemed to be the record date for determining Owners entitled to notice. The persons or entities appearing in the records of the Association on such record date as the Owner(s)
of record of Lots in the Project shall be deemed to be the Owners of record entitled to notice of the Owner meeting.
Quorum. Any number of Owners present in person or by proxy at any meeting duly called and held in compliance with the requirements of these Bylaws, shall constitute a quorum for the
transaction of business and adoption of decisions.
Proxies. Owners shall be entitled to vote in person or by proxy at each meeting provided, however, that the right to vote by proxy shall exist only where the instrument authorizing such
proxy to act shall have been signed by the Owner or by the Owner's attorney. A proxy may be written on paper or received via email, facsimile, text, or any other electronic or physical
means. A signature as required herein shall mean any indication that the document is from and consented to by the person who is purported to have sent it. If a Lot is jointly owned,
the instrument authorizing a proxy to act may be executed by any one (1) Owner of such Lot or the Owner’s attorney when duly authorized in writing. A proxy given by an Owner to any
person who represents the Owner at meetings of the Association shall be in writing, dated, and signed by such Owner. Such instrument may allow the proxy to vote on any issue arising
at any particular meeting or meetings, or may set forth the specific matters or issues upon which the proxy is authorized to act. Proxies shall be filed with the Secretary (or with
such other officer or person who may be acting as Secretary of the meeting) before the meeting is called to order. The Secretary shall record all proxies in the meeting minutes.
Votes. Owners shall be entitled to vote on each matter submitted to an Owner vote in person, by proxy, or by any type of written or electronic ballot. Owners shall have the number of
votes appertaining to the Lot of such Owner, as set forth in the Declaration. The affirmative vote of a majority of the votes entitled to be cast by the Owners present or represented
by proxy at a meeting at which a quorum was initially present shall be necessary for the adoption of any matter voted on by Owners, unless a greater proportion is required by the Articles
of Incorporation, these Bylaws, or the Declaration. When a Lot is jointly owned, any Owner may exercise the vote for such Lot on behalf of all Co-Owners of the Lot. In the event of
two (2) conflicting votes by Co-Owners of a Lot, no vote shall be counted for that Lot. In no event shall fractional or cumulative votes be exercised with respect to any Lot. Only those
Owners whose accounts with the Association are not delinquent and are paid in full at least 48 hours prior to the start of the meeting shall be entitled to vote.
Waiver of Irregularities. All inaccuracies and irregularities in calls or notices of meetings and in the manner of voting, in the form of proxies and the method of ascertaining Owners
present, and in the decision and votes of the Board or of the Owners shall be deemed waived by those Members in attendance if no objection is made at the meeting. For those Members
who are not in attendance at the meeting, the right to challenge inaccuracies and irregularities in calls, notices, voting, and decisions shall be waived if no objection is made within
thirty (30) days of the date of the meeting. The presence of an Owner in person at any meeting of the Owners shall be deemed a waiver of any notice requirements.
Action Taken Without a Meeting. Owners have the right to take any action in the absence of a meeting which they could take at a meeting by obtaining the written approval of Owners through
ballot, written consent, or otherwise. The Association may also use any method permitted for actions without a meeting in accordance with the requirements of State
law. Any action so approved shall have the same effect as though taken at an Owner meeting. Ballots or written consents may be obtained via any electronic or physical means including
but not limited to email, facsimile, text, or paper document.
Minutes of Meetings. The Secretary, or the Manager, shall take minutes of all Owner meetings and Board meetings and preserve such minutes for a minimum of ten (10) years. The minutes
shall include, at a minimum, (1) the identification of the Persons present in person and by proxy, (2) the meeting date, (3) the identification of any issue that is voted on or decided
in the meeting, (4) the number of votes cast for and against any issue decided upon, and (5) the exact wording of any resolution passed at the meeting. The failure to take appropriate
minutes or otherwise comply with this section does not invalidate any action taken at a meeting. Draft meeting minutes for each Owner meeting shall be made available to requesting Owners
within sixty (60) days of the meeting.
ARTICLE IV
BOARD OF DIRECTORS
Powers. The Project and the business and affairs of the Association shall be governed and managed by the Board of Directors. The Board may exercise business judgment and all of the powers
of the Association, whether derived from the Declaration, these Bylaws, or the Articles except such powers that the Declaration, these Bylaws, or the Articles vest solely in the Owners.
Election and Number. Board Members shall be appointed or elected according to the following schedule:
During the Period of Declarant Control, and while fewer than 75% of the Lots have been conveyed to Owners who are not the Declarant or builders (who acquired Lots to construct and sell
homes), the Declarant may either serve as the sole Board Member or appoint Board Members in a number determined in Declarant’s sole discretion.
Within 180 days after 75% of the Lots have been conveyed to Owners who are not the Declarant or builders (who acquired Lots to construct and sell homes), the Board must consist of three
(3) Board Members. At least 1/3 of the Board Members shall be elected by Owners other than the Declarant.
When 95% of the Lots are occupied, the Declarant must begin transferring full control of the Board to Owners and must complete the transfer within twelve (12) months of such date.
Following the earlier of (i) twelve (12) months after 95% of the Lots are occupied, as described in Section 4.2(c) herein, or (ii) the end of Period of Declarant Control, the Board
of Directors shall consist of three (3) Board Members and all Board Members shall be elected by the Owners. At such election, the Owners or their proxies may cast, for each open position,
as many votes as they are entitled to under the Declaration. The Association may accept written ballots from Members who are unable to attend the election meeting. The candidates who
receive the highest number of votes shall be elected. Board elections may be held by open vote or secret ballot. Cumulative voting is not permitted.
Qualifications. Board Members must be: 1) at least 18 years old, 2) be an Owner or the spouse of an Owner of a Lot in the Project, 3) be current on Assessments, and 4) not be in violation
of the Governing Documents. No two (2) Board Members may reside in the same Residence or be business partners if the business is related to their ownership of a
Lot. If an Owner is a corporation, partnership, limited liability company, or trust, only a natural person who is an officer, partner, member, manger, agent, trustee, or beneficiary
of such entity may serve as a Board Member, provided that such person serves in their individual capacity and does not assign or delegate their seat to another individual. If a Board
Member ceases to meet any required qualifications during the Board Member’s term, such person’s membership on the Board shall automatically terminate. During the Period of Declarant
Control, the Qualification requirements of these Bylaws shall not apply and the Declarant may exercise all powers of the Board as permitted by law.
Term of Office. The terms of office for the Board Members shall be as follows:
During the Period of Declarant Control, and while fewer than 75% of the Lots have been conveyed to Owners who are not the Declarant or builders (who acquired Lots to construct and sell
homes), Board Member terms shall be determined exclusively by Declarant.
Within 180 days after 75% of the Lots have been conveyed to Owners who are not the Declarant or builders (who acquired Lots to construct and sell homes), each elected Board Member shall
serve a 2-year term. If two or more Board Members are elected by Owners (rather than appointed by the Declarant), their terms must be staggered. The Board Member who receives the highest
number of votes shall serve a two (2) year term, and the Board Member who receives the fewest votes shall serve a one (1) year term. Elected Board Members may serve consecutive terms
if re-elected.
Upon the transfer of full control of the Board, as described in Section 4.2(c) herein, the two (2) Board Members who received the most votes shall each serve a two (2) year term, and
the Board Member with the fewest votes shall serve a one (1) year term. The Board Member terms shall be staggered so that at least one Board Member position is up for election each
year at the Annual Meeting of the Owners. Board Members may serve consecutive terms if re-elected.
Regular Board Meetings. The Board shall hold meetings at least annually or more often at the discretion of the Board. During the Period of Declarant Control, Board Meetings shall be
held at the discretion of the Declarant so long as at least one Board Meeting is held each year and a Board Meeting is held each time the Association increases a fee or raises an Assessment.
Special Board Meetings. Special meetings of the Board may be called by the President or a majority of Board Members on at least two (2) business days’ prior notice to each Board Member
and those Owners who have requested notice.
Meeting Notice. Notice shall be given to Board Members and Owners who have requested notice personally, by email, or by telephone, including text message at least two (2) business days’
in advance of the meeting. By unanimous consent of the Board, Board meetings may be held without call or notice to the Board Members, but notice shall always be provided to those Owners
who have requested notice of Board meetings.
Quorum and Manner of Action. A majority of Board Members shall constitute a quorum for the transaction of business. The act of a majority of the Board Members present at any meeting
at which a quorum is present and for which proper notice was provided shall be the act of the Board. The Board Members shall act only as the Board of Directors, and individual Board
Members shall have no powers as such.
Owner Attendance. Any Owner may request notice of Board meetings by requesting such notice form a Board Member and providing a valid email address or text messaging number at which the
Owner will receive notice. Owners who have requested notice of Board meetings shall be given notice along with the Board Members and shall be provided any call-in number or other means
of attendance by electronic communication that is provided to Board Members. If Owners attend a Board meeting, the Board may select a specific period of time during the meeting and
limit Owner comments to such time period. The Board in its sole discretion may set a reasonable length of time that each Owner may speak
Open Meetings. Except as provided in (a) through (f) below, Board meetings shall be open to Owners and any representative or agent of the Owner designated in a signed writing by the
Owner. The Board may, upon a majority vote, determine to hold a closed executive session during a meeting of the Board if the purpose of the closed executive session is to:
Consider matters of personnel, hiring, bid review, or contract negotiation;
Consider records that are not subject to disclosure under Idaho Code § 30-30-11;
Consult with an attorney for the purpose of obtaining legal advice, provided, however, that the mere presence of legal counsel at a board meeting shall not justify entering into executive
session;
Discuss ongoing or potential litigation, mediation, arbitration, or administrative proceedings; or
Discuss sensitive matters related to an individual member’s property or assessments, such as violations or delinquent assessments.
Board Meetings Generally. The Board may designate any place in Madison County as the place of meeting for any regular or special Board meeting. The Board may allow attendance and participation
at any Board meeting by telephone, video conferencing, or any other electronic means that allows for Board Members to communicate orally in real time. Following the Period of Declarant
Control, if a Board meeting is held by telephone, the Association shall provide the call-in information such that Owners may call-in to access the meeting.
Board Action. Notwithstanding noncompliance with any provision within these Bylaws, Board action is binding and valid unless set aside by a court of law. A person challenging the validity
of a Board action for failure to comply with these Bylaws, the Governing Documents, or any other irregularity, may not bring the challenge more than sixty (60) days after the Board
has taken the action in dispute.
Compensation. No Board Member shall receive compensation for any services that such member may render to the Association as a Board Member; provided, however, that a Board Member may
be reimbursed for expenses incurred in performance of such duties as a Board Member to the extent such expenses are approved by a majority of the other Board Members. Nothing herein
contained shall be construed to preclude any Board Member from serving the Project in any other capacity and receiving compensation therefore, so long as approved in advance by a majority
of disinterested Board Members.
Resignation and Removal. Board Members may resign at any time by delivering a written resignation to another Board Member. Unless otherwise specified therein, such resignation shall
take effect upon delivery. Any Board Member who is appointed by the Declarant may only be removed by the Declarant and the Declarant may remove a Board Member it appoints at any time.
However, the Declarant may not remove any Board Member
who is elected by the Owners. A Board Member elected by the Owners may be removed at any time, with or without cause, at a Special Meeting of the Owners duly called for such purpose
upon the affirmative vote of more than fifty percent (50%) of the entire voting interests of the Association. Board Members may also be removed by the majority vote of the other active
Board Members upon the failure to attend three (3) consecutive Board meetings. Upon removal of a Board Member, the Owners shall vote for a new Board Member to fill the remaining term
of the removed Board Member.
Vacancies. If vacancies occur during the Period of Declarant Control, the Declarant shall appoint a Board Member to fill the vacancy. Following the Period of Declarant Control, if vacancies
occur for any reason (including death, resignation, or disqualification) except removal by the Owners, the Board Members then in office shall continue to act, and such vacancies shall
be filled by a majority vote of the Board Members then in office, though less than a quorum. Vacancies occurring by reason of removal by the Owners may be filled by election of the
Owners at the meeting at which such Board Member is removed. Board Members elected or appointed hereunder to fill a vacancy shall serve for the unexpired term of his predecessor. Except
by reason of death, resignation, disqualification, or removal, Board Members shall continue to serve until their successors are elected.
Action Without a Meeting. Board Members have the right to take any action in the absence of a meeting which they could take at a Board meeting if a majority of the Board Members consent
to the action in writing. The term “in writing” shall specifically include email and text messaging. Board Members may also take action without a meeting if the Board complies with
any applicable provisions of the Idaho Code. Any action so approved shall have the same effect as though taken at a Board meeting.
Waiver of Notice. Before or at any Board meeting, any Board Member or Owner may waive notice of such meeting and such waiver shall be deemed the equivalent of proper notice. Attendance
by a Board Member or Owner at any Board meeting shall be a waiver of notice by that Board Member or Owner of the time, place, and purpose thereof.
Adjournment. The Board may adjourn any meeting from day to day for such other time as may be prudent or necessary, provided that no meeting may be adjourned for longer than thirty (30)
days.
Meeting. A Board meeting does not include a gathering of Board Members at which the Board does not conduct and vote on Association business.
ARTICLE V
OFFICERS
Officers. The officers of the Association shall be a President, Secretary, Treasurer, and such other officers as may be appointed by the Board. Officers shall not be required during
the Period of Declarant Control.
Election, Tenure, and Qualifications. Officers shall be elected by the Board at the first Board meeting following each Annual Meeting of the Owners. Each officer shall hold such office
until the next ensuing meeting of the Board following the Annual Meeting of the Owners and until a successor has been elected and qualified, or until such officer's death, resignation,
disqualification, or removal in the manner provided in these Bylaws, whichever first occurs. Any person may hold any two (2) or more of such offices, except that the President may not
also be the Secretary. No person holding two (2) or more offices shall act in or execute any instrument in the capacity of more than one (1) office.
Subordinate Officers. The Board may appoint such other officers or agents as it may deem advisable, each of whom shall have such title, hold office for such period, have such authority,
and perform such duties as the Board may from time to time determine.
Resignation and Removal. Officers may resign at any time by delivering a written resignation to any Board Member. Unless otherwise specified therein, such resignation shall take effect
upon delivery. Any officer may be removed and replaced upon the affirmative vote of a majority of the Board Members at any time, with or without cause.
Vacancies. If a vacancy occurs in an office for any reason, or if a new office is created, such vacancies or newly created offices may be filled by majority vote of the Board at any
regular or special Board meeting.
President. The President shall be the chief executive of the Association. The President shall preside at meetings of the Board of Directors and at meetings of the Owners. At the meetings,
the President shall have all authority typically granted to the person presiding over the meeting including but not limited to: (1) the right to control the order of the meeting, (2)
the right to arrange for the removal of any disruptive Owner or person, (3) the right to impose and enforce reasonable rules and procedures related to the meeting such as those found
in "Robert's Rules of Order" or "The Modern Rules of Order." The President shall sign on behalf of the Association all conveyances, mortgages, documents, and contracts, and shall do
and perform all other acts and things as required by the Board.
Secretary. The Secretary shall keep the minutes of the Association and shall maintain such books and records as these Bylaws, the Declaration, Rules, or any resolution the Board may
require. The Secretary shall also act in the place of the President in the event of the President's absence or inability or refusal to act. The duties of the Secretary may be delegated
to the Manager.
Treasurer. The Treasurer shall have the custody and control of the funds and financial accounts of the Association, subject to the action of the Board, and when requested by the President,
shall report the state of the finances of the Association at each meeting of the Owners and at any meeting of the Board. The Treasurer shall perform such other duties as required by
the Board. The duties of the Treasurer may be delegated to the Manager.
Compensation. No officer shall receive compensation for any services rendered to the Association as an officer, provided, however, that an officer may be reimbursed for expenses incurred
in performance of such duties as an officer to the extent such expenses are approved by the Board.
ARTICLE VI
COMMITTEES
Designation of Committees. The Board may designate committees as it deems appropriate in carrying out its duties, responsibilities, functions, and powers. No committee members shall
receive compensation for services rendered to the Association as a member of a committee; provided, however, that a committee member may be reimbursed for expenses incurred in performance
of such duties as a committee member to the extent that such expenses are approved by the Board. A committee shall not have powers, duties, or responsibilities beyond those specifically
assigned by the Board in a written resolution. The Board may terminate a committee at any time.
Proceeding of Committees. Each committee may appoint its own presiding and recording officers and may meet at such places and times and upon such notice as such
committee may determine. Each such committee shall keep a record of its proceedings and shall regularly report such proceedings to the Board.
Quorum and Manner of Acting. At each committee meeting, the presence of members constituting at least a majority of the authorized membership of such committee (but in no event fewer
than two (2) members) shall constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be
the act of such committee. The committee members shall act only as a committee, and the individual members thereof shall have no powers as such. A committee may only exercise the authority
granted to it by the Board.
Resignation and Removal. A committee member may resign at any time by delivering a written resignation to the President, the Board, or the presiding officer of such committee. Unless
otherwise specified therein, such resignation shall take effect upon delivery. The Board may at any time, with or without cause, remove any committee member.
Vacancies. If a vacancy occurs in a committee for any reason, the remaining members shall, until the filling of such vacancy by the Board, constitute the then total authorized membership
of the committee and, provided that two (2) or more members are remaining, may continue to act. Such vacancy may be filled at any meeting of the Board.
ARTICLE VII
INDEMNIFICATION
Indemnification. No Board Member, officer, or committee member shall be personally liable for any obligations of the Association or for any duties or obligations arising out of any acts
or conduct said Board Member, officer, or committee member performed for or on behalf of the Association. The Association shall and does hereby indemnify and hold harmless each person
who shall serve at any time as a Board Member, officer, or committee member of the Association, as well as such person's heirs and administrators, from and against any and all claims,
judgments and liabilities to which such persons shall become subject, by reason of that person having heretofore or hereafter been a Board Member, officer, or committee member of the
Association or by reason of any action alleged to have been heretofore or hereafter taken or omitted to have been taken by him as such Board Member, officer, or committee member and
shall reimburse any such person for all legal and other expenses reasonably incurred in connection with any such claim or liability; provided that no such person shall be indemnified
against or be reimbursed for or be defended against any expense or liability incurred in connection with any claim or action arising out of such person's willful or intentional misconduct.
The rights accruing to any person under the foregoing provisions of this Section shall not exclude any other right to which such person may lawfully be entitled, nor shall anything
herein contained restrict the right of the Association to defend, indemnify, or reimburse such person in any proper case, even though not specifically provided for herein or otherwise
permitted. The Association, its Board Members, officers, committee members, employees, and agents shall be fully protected in taking any action or making any payment or in refusing
so to do in reliance upon the advice of counsel.
Other Indemnification. The defense and indemnification provided herein shall not be deemed exclusive of any other right to defense and indemnification to which any person seeking indemnification
may be entitled under State law, or under any agreement, vote of disinterested Board Members, or otherwise, both as to action taken in any official capacity and as to action taken in
any other capacity while holding such office. It is the intent that all Board Members, officers, and committee members be and hereby are defended and indemnified to
the fullest extent permitted by the laws of the State and these Bylaws. The defense and indemnification herein provided shall continue as to any person who has ceased to be a Board Member,
officer, committee member, or employee and shall inure to the benefit of the heirs, executors and administrators of any such person.
Insurance. The Board, in its discretion, may direct that the Association purchase and maintain Directors and Officers insurance on behalf of any person who is or was a Board Member,
officer, committee member, Manager or employee of the Association or is or was serving at the request of the Association as a Board Member, officer, committee member, Manager, employee,
or agent of another association, corporation, partnership, joint venture, trust or other enterprise against any liability asserted against, and incurred by, such person in any such
capacity or arising out of such person's status as such, whether or not the Association would have the power to defend or indemnify such person against liability under the provisions
of this Article.
Settlement by Association. The right of any person to be defended and/or indemnified shall be subject always to the right of the Association through the Board, in lieu of such defense
and/or indemnity, to settle any such claim, action, suit or proceeding at the expense of the Association by the payment of the amount of such settlement and the costs and expenses incurred
in connection therewith.
ARTICLE VIII
RULES AND REGULATIONS
8.1 Rules. The Board shall have the authority to adopt Rules as it deems necessary for the maintenance, operation, management, and control of the Project. The Board may from time to
time, by resolution, alter, amend, and repeal such Rules and use their best efforts to see that they are strictly observed by all Owners and Occupants. Owners are responsible to ensure
that their lessees, invitees, and guests strictly observe the Rules then in effect as well as the covenants and restrictions of the Declaration and shall be jointly and severally liable
for their violations and resulting fines. Copies of all Rules adopted by the Board shall be sent to all Owners at least ten (10) days prior to the effective date thereof.
ARTICLE IX
AMENDMENTS
Amendments by Declarant. So long as the Declarant owns one or more Lots in the Project or any Additional Land, the Declarant may amend the Bylaws for any reason, without Owner approval.
Declarant’s unilateral amendment right may continue past the expiration of the Period of Declarant Control. No other amendment shall be valid or enforceable during the time Declarant
owns at least one Lot or any Additional Land unless the Declarant has given written consent to such amendment. Any amendment during the time Declarant owns at least one Lot or any Additional
Land shall be executed by Declarant on behalf of the Association and shall become effective upon recordation with the County Recorder.
Amendments by Association. After the Declarant has sold all of the Lots and Additional Land to third parties, and the Period of Declarant Control has expired, the Bylaws may be amended
by the Owners upon the affirmative vote of at least sixty-seven percent (67%) of the voting interest of the Association. Any amendment(s) shall be effective upon recordation in the
office of the Madison County Recorder. If a Lot is owned by more than one Owner, the vote of any one Owner shall be sufficient to constitute approval for that Lot under this Section.
If a Lot is owned by an entity or trust, the vote of any one officer, trustee, or agent of the entity
shall be sufficient to constitute approval for that Lot under this Section. No amendment shall restrict, limit, or impair any Special Declarant rights without the express written consent
of the Declarant.
ARTICLE X
MISCELLANEOUS PROVISIONS
Waiver. No restriction, condition, obligation, or provision contained in these Bylaws shall be deemed to have been abrogated or waived by reason of any failure to enforce the same, irrespective
of the number of violations or breaches thereof which may occur.
Invalidity; Number; Captions. The invalidity of any part of these Bylaws shall not impair or affect in any manner the validity, enforceability, or effect of the balance of these Bylaws.
As used in these Bylaws, the singular shall include the plural, and the plural shall include the singular. The masculine and neuter shall each include the masculine, feminine and neuter,
as the context requires. All captions are intended solely for convenience of reference and shall in no way limit any of the provisions of these Bylaws.
Conflicts. These Bylaws are intended to comply with the Declaration. In case of any irreconcilable conflict, the Declaration shall control over these Bylaws.
* * * *
IN WITNESS WHEREOF, the Declarant has executed and adopted these Bylaws on behalf of the Association.
DATED this ___ day of ________________, 2025.
DECLARANT
AKAROA PROPERTIES, LLC
a Utah limited liability company
By:___________________________________
Name: ________________________________
STATE OF _____________)
) ss. Its:___________________________________
COUNTY OF )
On the ____ day of ________________, 2025, personally appeared before me _______________________ who by me being duly sworn, did say that she/he is an authorized representative of Akaroa
Properties, LLC, and that the foregoing instrument is signed on behalf of said company and executed with all necessary authority.
Notary Public: ___________________________