HomeMy WebLinkAboutCC&Rs - Waterfall Townhomes (Idaho) - 10.22.25 (1)
DECLARATION
OF
COVENANTS, CONDITIONS, AND RESTRICTIONS
FOR
WATERFALL TOWNHOMES
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
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This DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR
WATERFALL TOWNHOMES (“Declaration”) is effective when recorded with the Madison
County Recorder’s Office by Waterfall Homes Idaho LLC, an Idaho limited liability company
(“Declarant”).
RECITALS
A. 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 Waterfall Townhomes (the
“Project”).
B. 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.
C. 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.
D. 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.
E. 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.
F. 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.
1.1. “Additional Land” shall mean and refer to, without limitation, any parcel of land
that is annexed into the Project by the Declarant.
1.2. “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
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Association intends to impose for the upcoming calendar year, including any Reinvestment
Fee.
1.3. “Articles” shall mean and refer to the Articles of Incorporation for the
Association, as amended and restated from time to time.
1.4. “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.
1.5. “Association” shall mean the Waterfall Townhomes Owners Association, Inc.,
an Idaho nonprofit corporation. Failure of the Association to maintain its corporate status will
not result in the dissolution of the Association.
1.6. “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.
1.7. “Board Member” shall mean a duly qualified and elected or appointed individual
member of the Board of Directors of the Association.
1.8. “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.
1.9. “City” shall mean the City of Rexburg, Idaho.
1.10. “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.
1.11. “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.
1.12. “Declarant” shall mean Waterfall Homes Idaho LLC, an Idaho limited liability
company, and any successor in interest.
1.13. “Declaration” shall mean and refer to this Declaration of Covenants, Conditions
and Restrictions for Waterfall Townhomes, as may be amended from time to time.
1.14. “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.
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1.15. “Governing Documents” shall mean collectively, the Declaration, Articles of
Incorporation, Bylaws, Plat, and any Rules adopted by the Board.
1.16. “Individual Assessment” shall have the meaning described in Section 5.8 of
this Declaration.
1.17. “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.
1.18. “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.
1.19. “Manager” shall mean a person, persons, or entity, if any, selected by the Board
to manage the affairs of the Association and Project.
1.20. “Member” shall mean and refer to a Lot Owner.
1.21. “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.
1.22. “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.
1.23. “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.
1.24. “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.
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1.25. “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.
1.26. “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.
1.27. “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.
1.28. “Plat” shall mean the official subdivision plats of Waterfall Townhomes 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.
1.29. “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 Waterfall Townhomes and are subjected to this Declaration. The Project shall also
include any Additional Land annexed into the Association and made subject to this Declaration.
1.30. “Regular Assessment” shall have the meaning described in Section 5.5 of this
Declaration.
1.31. “Reinvestment Fee” shall have the meaning described in Section 5.20 of this
Declaration.
1.32. “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,
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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.
1.33. “Restrictions” shall mean the covenants, conditions, assessments,
easements, liens, and restrictions set forth in this Declaration.
1.34. “Rules” shall mean and refer to the rules, resolutions, regulations, policies,
architectural guidelines, etc. adopted by the Board.
1.35. “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.
1.36. “Service Area Assessment” shall have the meaning described in Section 5.6
of this Declaration.
1.37. “Special Assessment” shall have the meaning described in Section 5.7 of this
Declaration.
1.38. “State” shall mean the State of Idaho.
1.39. “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 Waterfall 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
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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
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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:
1) 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;
2) 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;
3) 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
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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,
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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
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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
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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:
1) The Association may suspend such Owner’s voting rights.
2) 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
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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.
3) 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.
4) 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.
5) The Association may terminate utilities paid out of the Common Expense and
the right to use the Common Areas.
6) 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.
7) 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
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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:
1) 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.
2) 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.
3) 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.
4) The Reinvestment Fee may only be used for Common Expenses or funding the
reserves of the Association.
5) 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.
6) 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.
7) 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.
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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:
1) The powers, duties, and obligations granted to the Association by this
Declaration, its Bylaws, and the Articles of Incorporation;
2) The powers and obligations of a nonprofit corporation pursuant to the general
nonprofit corporation laws of the State;
3) The powers, duties, and obligations of a homeowners association pursuant to
State law;
4) The powers, duties, and obligations not reserved specifically to Owners; and
5) 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:
1) Maintenance and Services. The Association shall provide maintenance and
services for the Project as provided in Article VII and other provisions of this Declaration.
2) 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
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property insurance.
3) 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.
4) Assessments. The Association shall adopt budgets and impose and collect
Assessments as provided in Article V of this Declaration.
5) 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.
6) 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.
7) 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.
8) 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.
9) 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
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of Assessment.
10) 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.
11) 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
17
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
18
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
19
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.
1) 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.
(a) 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.
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(b) 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.
(c) 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.
(d) 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.
(e) 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.
2) 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:
(a) The Association’s policy provides primary insurance coverage, and:
(i) the Owner is responsible for the Association’s policy deductible; and
(ii) the Owner’s policy, if any, applies to that portion of the loss attributable
to the Association’s policy deductible.
(b) 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
(c) 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.
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3) 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.
4) 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.
5) 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.
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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.
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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.
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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.
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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
12.1. Improvements. Declarant hereby reserves the right, without obligation, to
construct:
1) Any improvement shown on the Plat or included in the Project;
2) 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
3) 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.
12.2. 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.
1) The Project may be expanded by the addition of any real property designated by
Declarant.
2) 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.
3) 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.
4) Additional Land may be added in total or in part, in any order, by using any
procedure or manner as Declarant may determine.
5) 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.
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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:
1) the right to maintain sales offices, model Residences, and signs advertising the
Project or any Residence at any location in the Project;
2) the right to use easements through the Common Areas as set forth in this
Declaration;
3) 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;
4) the right to convert any part of the Project to a different regime of residential
ownership;
5) the right to create or designate additional Common Area within the Project;
6) 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;
7) unless expressly and specifically bound by a provision of the Governing
Documents, Declarant shall be exempt from the provisions of the Governing Documents;
8) 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;
9) the right to set all assessments for the Association including annual, special, and
individual assessments;
10) 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;
11) the exclusive right to amend the Declaration, Bylaws, Plat, and Rules of the
Association without approval from any Members;
12) 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;
13) the right to create Service Areas and assign Lots thereto;
14) the right to exert any right allowed to the Board or the Association pursuant to
State law and this Declaration;
15) the right to make and adopt Association Rules; and
16) the Declarant shall have no duty whatsoever to obtain a reserve analysis, or to
fund any reserve fund during the Period of Declarant Control.
12.4. 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
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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.
12.5. 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.
12.6. 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.
12.7. 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.
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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
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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
15.1. 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.
15.2. 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.
15.3. 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
16.1. Alternative Dispute Resolution Without Litigation.
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(a) 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.
(b) Claims. As used in this Article, the term “Claim” means any claim, grievance, or
dispute arising out of or relating to:
(i) the interpretation, application, or enforcement of the Governing
Documents;
(ii) the rights, obligations, and duties of any Bound Party under the
Governing Documents; or
(iii) 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.
(c) 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:
(i) any suit by the Association to collect assessments or other amounts due
from any Owner;
(ii) 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);
(iii) 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;
(iv) 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;
(v) 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;
(vi) 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
31
the Declarant or an affiliate of the Declarant in connection with the development of
the Project; and
(vii) any suit or dispute involving a governmental entity as a party.
16.2. Dispute Resolution Procedures.
(a) 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:
(i) the nature of the Claim, including the persons involved and the
Respondent’s role in the Claim;
(ii) the legal basis of the Claim (i.e., the specific authority out of which the
Claim arises);
(iii) the Claimant’s proposed resolution or remedy;
(iv) 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
(v) the Claimant’s desire to meet with the Respondent to discuss, in good
faith, ways to resolve the Claim.
(b) 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.
(c) 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.
(d) 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.
(i) 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.
(ii) 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
32
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.
(iii) 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.
(e) 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.
16.3. 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:
(a) The Right to Cure period set forth in Section 16.2(b) above has expired;
(b) 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:
(i) 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.
(c) the Association provides each Owner with the items described in Section 16.4(a)
and (b), below;
(d) the Association establishes a trust account, described in Section 16.4(c) below;
and
(e) 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.
(f) The procedures and approval required in the preceding subsections (a) through
(e) shall not be required for actions or proceedings:
(i) initiated by Declarant during the Period of Declarant Control on behalf of
the Association;
(ii) initiated to enforce the provisions of this Declaration, including collection
of assessments and foreclosure of liens;
(iii) initiated to challenge ad valorem taxation or condemnation proceedings
(including bringing an action for inverse condemnation);
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(iv) initiated against any contractor, vendor, or supplier of goods or services
arising out of a contract for services or supplies; or
(v) 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.
16.4. 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) A written notice stating:
(i) that the Association is contemplating legal action;
(ii) the percentage vote required for approval of the litigation;
(iii) 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;
(iv) 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
(b) A written report from an attorney licensed to practice in Idaho, which provides
an assessment of:
(i) The likelihood that the legal action will succeed;
(ii) The likely amount in controversy in the legal action;
(iii) The likely cost of resolving the legal action to the Association’s
satisfaction; and
(iv) 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.
(v) 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.
(c) Before the Association commences any legal action as authorized above, the
Association shall:
(i) allocate an amount equal to 25% of the cost estimated to resolve the
Claim not including attorney fees; and
(ii) 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,
34
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
35
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.
36
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
37
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.
* * * *
38
IN WITNESS WHEREOF, the Declarant has caused this Declaration to be executed
by a duly authorized representative this ___ day of _______________, 2025.
DECLARANT
WATERFALL HOMES IDAHO LLC
an Idaho 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 Waterfall Homes Idaho LLC, and that the foregoing instrument is
signed on behalf of said company and executed with all necessary authority.
Notary Public: ____________________________
A - 1
EXHIBIT A
LEGAL DESCRIPTION
All of WATERFALL TOWNHOMES, according to the official plat filed in the office of
the Madison County Recorder.
More particularly described as:
B - 1
EXHIBIT B
BYLAWS
OF
WATERFALL TOWNHOMES OWNERS ASSOCIATION
These BYLAWS OF WATERFALL TOWNHOMES OWNERS ASSOCIATION are
effective upon recording in the Madison County Recorder's Office.
RECITALS
A. The Waterfall Townhomes Owners Association, Inc. (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 of Covenants, Conditions and Restrictions for Waterfall Townhomes (the
“Declaration”) and Articles of Incorporation.
B. 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 Waterfall Townhomes 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.
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
3.1 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
B - 2
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.
3.2 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.
3.3 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.
3.4 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:
a. 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
b. 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.
3.5 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
B - 3
the meeting and is not in violation of any provision of the Governing Documents.
3.6 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.
3.7 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.
3.8 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.
3.9 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.
3.10 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.
B - 4
3.11 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.
3.12 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
4.1 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.
4.2 Election and Number. Board Members shall be appointed or elected according
to the following schedule:
(a) 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 shall appoint three (3)
Board Members.
(b) 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 shall consist of three (3) Board Members. At least one third (1/3) of
the Board Members shall be elected by Owners other than the Declarant.
(c) 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 the 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.
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The provisions of this Section 4.2 shall apply solely to the transfer of control of the Board
and shall not affect any other rights or privileges of the Declarant under this Declaration,
including, without limitation, the Declarant’s architectural review authority, which the Declarant
shall retain during the entire Period of Declarant Control.
4.3 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.
4.4 Term of Office. The terms of office for the Board Members shall be as follows:
(a) 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.
(b) 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.
(c) Upon the transfer of full control of the Board, as described in Section 4.2(c) of
these Bylaws, 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.
4.5 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.
4.6 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.
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4.7 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.
4.8 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.
4.9 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
4.10 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:
(a) Consider matters of personnel, hiring, bid review, or contract negotiation;
(b) Consider records that are not subject to disclosure under Idaho Code § 30-30-11;
(c) 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;
(d) Discuss ongoing or potential litigation, mediation, arbitration, or administrative
proceedings; or
(e) Discuss sensitive matters related to an individual member’s property or
assessments, such as violations or delinquent assessments.
4.11 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.
4.12 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.
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4.13 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.
4.14 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.
4.15 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.
4.16 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.
4.17 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.
4.18 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.
4.19 Meeting. A Board meeting does not include a gathering of Board Members at
which the Board does not conduct and vote on Association business.
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ARTICLE V
OFFICERS
5.1 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.
5.2 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.
5.3 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.
5.4 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.
5.5 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.
5.6 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.
5.7 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.
5.8 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.
5.9 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
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expenses incurred in performance of such duties as an officer to the extent such expenses are
approved by the Board.
ARTICLE VI
COMMITTEES
6.1 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.
6.2 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.
6.3 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.
6.4 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.
6.5 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
7.1 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,
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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.
7.2 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.
7.3 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.
7.4 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.
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ARTICLE IX
AMENDMENTS
9.1 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.
9.2 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
10.1 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.
10.2 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.
10.3 Conflicts. These Bylaws are intended to comply with the Declaration. In case
of any irreconcilable conflict, the Declaration shall control over these Bylaws.
* * * *
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IN WITNESS WHEREOF, the Declarant has executed and adopted these Bylaws on
behalf of the Association.
DATED this ___ day of ________________, 2025.
DECLARANT
WATERFALL HOMES IDAHO LLC
an Idaho 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 Waterfall Homes Idaho LLC, and that the foregoing instrument is signed on
behalf of said company and executed with all necessary authority.
Notary Public: ___________________________