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HomeMy WebLinkAboutUTC DRAFT CC&RS AFTER RECORDING, PLEASE RETURN TO: Tyson Cichos 1547 Harvard Avenue Salt Lake City, UT 84105 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS UNIVERISTY TOWNE CENTER THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS­ UNIVERSITY TOWNE CENTER (the "Declaration") is executed this _____ day of _____________, 2026, by TC REXBURG INVESTMENTS LLC, a Utah limited liability company ("Declarant"). RECITALS: A. Declarant owns a certain tract of real property located north of University Boulevard in Madison County, State of Idaho, the legal description of which is set forth on the attached Exhibit " A" (the "Property"). B. Prior to the recordation of this Declaration, Declarant has filed a subdivision plat with the Official Records of Madison County, Idaho titled "University Towne Center" (the "Plat"). The Plat corresponds to the site plan attached to this Declaration as Exhibit "B" (the "Site Plan"). C. The Plat divides the Property into separate, legally subdivided lots, as depicted on the Site Plan. Each of the Lots identified on the Plat is subject to this Declaration (the "Subject Lots"). D. Declarant desires to establish with respect to the Subject Lots certain reciprocal parking rights , reciprocal rights of ingress and egress for pedestrians and vehicles, and to impose certain covenants, restrictions and easements on the Subject Lots, all on the terms and conditions set forth in this Declaration . NOW, THEREFORE, for the foregoing purposes, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Declarant makes the following declarations, creates the following easements and establishes the following covenants, conditions and restrictions, all of which apply to, bind, affect and run with title to each Subject Lot. 1. Definitions. Certain capitalized terms used in this Declaration are previously defined in this Declaration. In addition to those previously defined terms, the following capitalized terms shall have the meanings indicated. 2 "Access Areas" means the areas on each Subject Lot used at any time and from time to time as traffic lanes, driveways, sidewalks, walkways, stairways or similar areas for ingress and egress of vehicles and pedestrians, but does not include any land covered by a Building or any areas outside of a Building that are intended to be used for the exclusive use of the Occupants of a particular Building, such as, without limitation, loading docks and trash areas. "Additional Future Lot" means a lot to be platted by Declarant or its assign(s) subsequent to the date of this Agreement located anywhere in the University Towne Center master plan, which is attached hereto as Exhibit "D". "Arbitration" means the dispute resolution procedure set forth in Section 11(c). "Benefited Parties" means, (i) with respect to a Subject Lot, the Owners and Occupants of the Subject Lot, and their respective employees, customers, guests and invitees and (ii) with respect to an Additional Future Lot, the Owners and Occupants of the Additional Future Lot, and their respective employees, customers, guests and invitees. "Building" means a building or other principal structure on a Subject Lot including, without limitation, all extensions or projections thereof, all structures or facilities accessory or integral thereto, and any garages, platforms or docks, storage tanks, canopies or overhangs, porches and similar items. "Common Areas" means and includes all areas within the exterior boundaries of the Property which are now or hereafter made available for general use, convenience and benefit of the occupants and tenants of the Project and their customers, employees, invitees and licensees, including, without limitation, all Access Areas, Parking Areas, the Landscaping Areas and all traffic lanes, driveways, sidewalks, walkways, stairways and landscaped and planted areas of the Property. "Curb Cuts" means the locations at which vehicles enter the Property from public streets as shown on the Site Plan, and as the same may be altered, relocated or changed pursuant to Section 5 of this Declaration. "Declarant" means TC Rexburg Investments LLC, a Utah limited liability company. Upon conveying its last remaining Subject Lot, the initial Declarant may, in writing, designate a successor Declarant which may, but shall not be required to, in all events, be the Owner of one (1) or more of the Subject Lots. Such designation, if any, shall be recorded in the Official Records of the Madison County Recorder. "Design Standards" means the Design Standards that Declarant may, in its absolute and sole discretion, create to govern the Property. 3 "Designated Access Drives" means each of: (i) the access drive to be constructed that will commence on Yellowstone Highway and provide access to the Property, (ii) the access drive to be constructed that will commence on Tamana Drive and provide access to the Property, (iii) the access drives to be constructed that will commence on Mikan Drive and provide access to the Property and (iv) such other access drive(s) that Declarant may choose to construct, in its absolute and sole discretion. "Governmental Authorities" means all governmental or quasi­governmental units, commissions, councils, boards, agencies, staffs or similar bodies having jurisdiction over the use, operation, maintenance or development of a specified matter. "Governmental Requirements" means all laws, ordinances, rules, codes, requirements, resolutions, policy statements and regulations of Governmental Authorities in respect of a specified matter including, without limitation, such items relating to land use, subdivision, zoning, environmental, hazardous materials or other toxic substance, occupational health and safety, water, earthquake hazard reduction, and building and fire codes. "Improvements" means all improvements other than Buildings located from time to time on a Subject Lot including, without limitation, any Access Areas, Parking Areas, Landscaping Areas, traffic lanes, driveways, walkways, stairways, exterior lighting, striping, curbs, retaining walls, screening walls and signs. "lndemnitee" is defined in Section 10. "Indemnitor" is defined in Section 10. "Landscaping Areas" means the landscaped areas around the perimeter of the Project, between the Subject Lots and otherwise as may be depicted and labeled on the Site Plan. "Manager" means the Declarant or a manager appointed by Declarant. "Mediation" means the dispute resolution procedure set forth in Section 11(b) to be employed to resolve all disputes arising under this Declaration. "Mortgage" means a recorded mortgage, deed of trust or other security agreement creating a lien on a Subject Lot or a portion of the Property as security for the payment of indebtedness. "Mortgagee" means a Person constituting the mortgagee, beneficiary or other secured party under a Mortgage. "Occupant" means any Person that, pursuant to a lease, a rental arrangement, a license or any other instrument, agreement, contract, document, understanding or 4 arrangement is entitled to or does occupy, possess or use any Subject Lot, Additional Future Lot or any portion of the Property. "Owner" means the Person that, at a specified time, is the owner of record in the office of the County Recorder of Madison County, Idaho of a fee or an undivided fee interest in a Subject Lot or an Additional Future Lot or portion of a Subject Lot or an Additional Future Lot and expressly does not include the owner of a leasehold interest in the Subject Lot or an Additional Future Lot. In the event that, at any time, there is more than one Owner of a Subject Lot or an Additional Future Lot, the liability of each such Owner for performance or compliance with the applicable provisions of this Declaration shall be joint and several. Notwithstanding any applicable theory relating to a mortgage, deed of trust, or like instrument, the term "Owner" shall not mean or include a Mortgagee unless and until such Person has acquired fee title to the Subject Lot or Additional Future Lot or portion of the Property encumbered by a Mortgage pursuant to foreclosure, trustee's sale or any arrangement or proceeding in lieu thereof. "Owners' Percentages" means, with respect to each Owner, a percentage obtained by dividing the number of gross square footage of land comprising such Owners Subject Lot, by the total of the gross square footage of land located on all of the Subject Lots. "Parking Areas" means the areas on a Subject Lot that are used at any time and from time to time for parking. "Property" means all of the Subject Lots, the legal description of which is set forth on the attached Exhibit "A". "Person" means a natural person, a legal entity or a trust. "Project" means the commercial and retail development and all Buildings and Improvements located or to be located on the Property which shall be known as "University Towne Center" or such other name or names as may be designated by Declarant from time to time. "Site Plan" means the plan attached to this Declaration as Exhibit "B". "Subject Lots" means each of the Lots on the Property, the legal description of which is set forth on Exhibit "A". 2. Grant of Easements for Pedestrians and Vehicles. Declarant hereby creates the following easements with respect to the Subject Lots for the benefit of the Benefited Parties of the other Subject Lots and of the Additional Future Lots, which easements shall be appurtenant to each of the Subject Lots: 5 a. Non­exclusive easements across the sidewalks or walkways located in the Access Areas on each Subject Lot for pedestrian use by the Benefited Parties of the other Subject Lots. b. Non­exclusive easements across the traffic lanes and roads located in the Access Areas on each Subject Lot for the purpose of furnishing access and the right of access for the vehicles of the Benefited Parties of the other Subject Lots. c. Non­exclusive right to use the Parking Areas on each Subject Lot by the Benefited Parties of the other Subject Lots, subject to the terms and conditions of Section 6 below and to rules and regulations reasonably approved by Declarant. Parking ratios shall be determined in accordance with Governmental Requirements. Employees of each Owner or its tenants shall park only on the Subject Lot on which they are employed. The foregoing non­exclusive easements may only be used to such extent as may be reasonably related to the use of the Subject Lots and Additional Future Lots for commercial, retail, restaurant and office purposes. The Owners of the Subject Lots hereby acknowledge, agree and consent that the Owners of the Additional Future Lots are third party beneficiaries to this Agreement and shall be entitled to enforce this Agreement as if they were a party hereto. In addition, the Owner of each Subject Lot hereby agrees to execute and deliver any document or agreement that may be necessary or advisable to allow Declarant or an Owner of an Additional Future Lot to document, enforce and confirm the rights set forth in this Declaration. 3. Utility Easements. Declarant hereby creates utility easements appurtenant to the Subject Lots and Additional Future Lots for utilities or services needed at the Project, including (without limitation) water, sanitary sewer, natural gas, electricity, telephone and telecommunications and, if applicable, storm sewer. All such utilities will be from the public right­of­way to the point(s) of connection to the Subject Lots. To the extent feasible, major utility trunk lines and pipes shall be located in the traffic lanes and roads located in the Access Areas on each Subject Lot. 4. Construction of Buildings and Related Improvements. Each Owner, at its own cost and expense, shall construct the Buildings, Access Areas and Parking Areas contemplated to be located on its Subject Lot in accordance with the Design Standards (if applicable) and all Governmental Requirements. Prior to an Owner constructing or materially remodeling any Buildings, Access Areas or Parking Areas on their Subject Lot, each Owner shall receive the prior written consent of Declarant as to the design and location of such improvements, which consent may be withheld in Declarant’s absolute and sole discretion. Declarant shall interpret and enforce the provisions set forth in the Design Standards (if applicable) in its absolute and sole discretion. Declarant may, in its absolute and sole discretion, grant waivers to the guidelines set forth in the Design Standards (if applicable) at any time; provided, however, for a waiver to be valid it must be given by Declarant in writing. Once commenced, construction of any Buildings shall be diligently pursued to completion. Construction of all Buildings shall be performed in a good and workmanlike manner. If any Building on a Subject Lot is at any time destroyed or condemned and the Owner of the Subject Lot does not diligently proceed to rebuild the same, such Owner shall raze the remaining portion of such Building. Any unimproved land or land rendered unimproved as a result of the razing of a destroyed or condemned Building shall be maintained in a manner consistent and compatible with the appearance and landscape of 6 the remainder of the Project. Notwithstanding any other provision of this Declaration, in the event of damage to or destruction of any Common Area facilities, the Owner of the affected Subject Lot shall promptly repair and restore the damage to the affected Common Area facilities on its Subject Lot. Owners and Occupants of each other Subject Lot shall have self­help rights to perform the repair and restoration, and the reasonable costs so incurred shall be secured by a lien against the affected Subject Lot for the amount of such reasonable cost, which amount shall bear interest at the rate of twelve percent (12%) per annum, and which lien may be foreclosed in accordance with Idaho law. 5. Right to Move Curb Cuts or Construct Additional Curb Cuts. Declarant , at its sole cost and expense, may alter, relocate or change the configuration of the Curb Cuts on the Subject Lots at any time and from time to time as follows : a. As required by Governmental Authorities; b. As Declarant determines, provided: (i) Declarant shall provide to the Owners of the other Subject Lots written notice of, and conceptual plans for, the proposed alteration, relocation or other change to such Curb Cuts not less than thirty (30) days before any work commences; (ii) Such alteration, relocation, change or addition shall comply with the provisions of this Declaration, all Governmental Requirements and the requirements of other declarations or agreements affecting the Subject Lots which are superior to this Declaration; (iii) Except for temporary closures or interruptions to facilitate construction or relocation , such alteration, relocation or change shall not materially impair the flow of traffic or materially affect the traffic flow into or from the other Subject Lots; (iv) A new Curb Cut intended to replace an existing Curb Cut shall be completed prior to abandonment and removal of the Curb Cut to be replaced; (v) Such alteration, relocation or change shall not reduce the number of parking stalls on a Subject Lot without the prior written consent of the Owner of such Subject Lot; and (vi) Once access to a Subject Lot is established, Declarant shall not change the location, design or elevation of the access to such Subject Lot without the consent of the benefitted lot Owner. 6. Alteration, Relocation or Changes to Access Areas, Parking Areas and Buildings. T he Owner of a Subject Lot may, at its sole cost and expense, alter, relocate or change the configuration of the Access Areas, Parking Areas and Buildings on its Subject Lot at any time and from time to time but only upon strict compliance with the provisions of this Section. 7 a. The Owner proposing to make any alteration, relocation or change shall provide to Declarant written notice of, and conceptual plans for, the proposed alteration, relocation or other change not less than sixty (60) days before any work commences. b. Any proposed alteration, relocation or other change shall comply with all Design Standards (if applicable) and Governmental Requirements. c. Any proposed alteration, relocation or other change shall not: (i) Reduce the number of parking stalls located on the Subject Lot below the number required by Governmental Regulations; or (ii) Except for temporary closures or other interruptions (which shall not unnecessarily interrupt the flow of traffic during normal business hours) to facilitate construction or relocations , adversely impact the easements and rights of the Benefited Parties of the other Subject Lots pursuant to Section 2. d. The Owner proposing to make any alteration, relocation or other change shall pay the entire cost of such alteration, relocation or change. e. The Owner proposing to make such alteration, relocation or change may not perform any work on, or stage any work from the other Subject Lots without the prior written consent of Declarant or the Owner of such other Subject Lots, as applicable, which consent may be withheld in the absolute and sole discretion of Declarant or the Owner of such other Subject Lot . 7. Rules and Regulations. Declarant may promulgate reasonable rules and regulations regarding the use of the Common Areas, and may modify such rules and regulations from time to time as it may determine in its reasonable discretion, provided however, that such rules and regulations: (a) are equally enforced against all Owners, and (b) shall not unreasonably materially interfere with the operation of any Owner's business on the Subject Lots. 8. Intentionally Deleted. 9. Maintenance of Subject Lots and Common Areas. a. Each Owner, at its sole cost and expense, shall continuously maintain and keep in clean and good order, condition and repair their respective Subject Lot, including all landscaped portions of Common Areas, Access Areas and Parking Areas located on their respective Subject Lot. Each Owner may maintain the Common Area between such Owner's Subject Lot and public streets. If any Owner fails to carry out its obligations with respect to maintenance of the Common Areas on that Owner's Subject Lot and such failure shall continue for a period of thirty (30) days after written notice thereof, Declarant (or its Manager) may maintain and repair such Common Areas and invoice the Owner for the reasonable cost of such maintenance and/or repair. 8 b. Except for the Common Areas located on a Subject Lot and the landscaped area between a Subject Lot and public streets which may be maintained by the Owner of such Subject Lot, a manager (the "Manager") shall supervise maintenance of the Common Areas and the Designated Access Drives. The Manager shall promulgate reasonable rules regarding the use of the Common Areas, and shall approve signage for and enforce restrictions on the use of the Parking Areas including, without limitation, the ticketing and towing of improperly parked cars. No person other than the Manager shall ticket or tow improperly parked cars. The Manager shall at all times be Declarant or a manager appointed by Declarant. c. The Manager shall invoice each of the Owners on a regular periodic basis for the cost of insuring, operating and maintaining the Common Areas and the Designated Access Drives, including the Landscaping Areas (but excluding the portions of Common Areas maintained by Subject Lot owners in accordance with Section 9.b. above), based on the Owner's Percentage. The Manager shall have the right, power and authority to enter into contracts and agreements with third Persons to provide for such maintenance. Each Owner shall pay its share of maintenance cost within thirty (30) days after being billed. If an Owner fails to timely pay an invoice then: (i) A five percent (5%) late payment fee shall be added to the invoice on the thirty­first (31st) day; (ii) The unpaid balance shall thereafter accrue interest at the rate of twelve percent (12%) per annum; and (iii) All sums owing shall be secured by a lien against the Subject Lot owned by the Owner which is in default, which amount shall bear interest at the rate of twelve percent (12%) per annum, and which lien may be foreclosed in accordance with Idaho law. 10. Insurance on Subject Lots Maintained by Owner. During the term of this Declaration, each Owner shall maintain, or cause to be maintained in full force and effect, at its sole expense, with good and solvent insurance companies authorized to do business in the State of Idaho and having a rating by Best's Insurance Reports or a similar rating service or agency reasonably required by the Manager, a policy or policies of commercial general liability, bodily injury, personal injury and property damage liability insurance with combined single limits of at least Two Million Dollars ($2,000,000) with respect to each Subject Lot which it owns and all Buildings and other improvements (including Common Area improvements) located on each Subject Lot. Each Owner shall, upon request thereof from the Manager, furnish to the Manager certificates of insurance evidencing the existence of the insurance required to be carried pursuant to this Section. Each Owner hereby waives any claim that it might have against any other Owner for damages which would be covered by any of the insurance required to be carried under this Section. Said mutual waivers shall be in addition to, and not in limitation or derogation of, any other waiver or release regarding any loss of, or any damage to the said property of any Owner. Inasmuch as the said mutual waivers will preclude the assignment of any such claim by way of subrogation (or otherwise) to an insurance company (or any other person, firm or corporation) each Owner shall give to each insurance company which has issued to it policies of all­risk insurance, written notice of the terms of 9 said mutual waivers, and shall have said insurance policies properly endorsed, if necessary, to prevent invalidation of said insurance coverages by reason of said waiver. If available from the insurance company, all such insurance maintained pursuant to this Section shall provide that such insurance shall not be canceled or amended without ten (10) days prior written notice to the Manager. If any such Owner shall fail to maintain any of the insurance required to be maintained by such Owner pursuant to this Declaration, then the Manager shall have the right to give the defaulting Owner written notice of such default specifying the particulars thereof. The Owner receiving such a notice shall have a period often (10) days in which to cure such default. If the defaulting Owner does not cure such default within said ten (10) day period, the Manager may do so and the Manager may then bill the defaulting Owner for the expense incurred. If the defaulting Owner shall not pay such bill within ten (10) days, then the Manager shall have a lien on the property of the defaulting Owner for the amount of such bill, which amount shall bear interest at the rate of twelve percent (12%) per annum, and which lien may be foreclosed in accordance with Idaho law. Each Owner ("lndemnitor") covenants and agrees to defend, protect, indemnify and hold harmless each other Owner ("Indemnitee") from and against all claims, including any action or proceedings brought thereon, and all costs, losses, expenses and liability (including reasonable attorney's fees actually incurred and cost of suit) arising from or as a result of the injury to or death of any Person, or damage to the property of any Person located on the Subject Lot owned or leased by each Indemnitor, except for claims caused by the gross negligence or willful act or omission of such Indemnitee, its agents, servants, partners or employees. 11. Dispute Resolution. a. Good Faith Attempt to Resolve Disputes. In the event of a dispute arising under this Declaration, the parties to the dispute shall attempt in good faith to resolve promptly any dispute arising out of or relating to this Declaration by negotiation between designated representatives with authority to resolve the dispute. b. Mediation. Prior to exercising any other remedies available or required under this Declaration or otherwise available at law or equity, including, without limitation, Arbitration of a dispute pursuant to Section 11(c), the parties to the dispute shall first attempt in good faith to settle any dispute arising out of or relating to this Declaration or its breach by mediation pursuant to this Section ("Mediation"). Any party to the dispute may demand Mediation by written notice to the other parties to the dispute. The Mediation is to be administered by a mediator mutually agreed upon by the parties to the dispute. In the absence of an agreement, any party to the dispute may petition the Judge of The Seventh Judicial District Court in and for Madison County, Idaho to appoint a mediator. If the Mediation does not resolve the dispute, any party to the dispute may then resort to Arbitration. c. Arbitration. In the event of a dispute and after the parties to the dispute have satisfied the requirements of Section 11(a) and (b), then any party to the dispute by delivering written notice delivered to the other parties to the dispute may elect to subject the dispute to binding arbitration by a single arbitrator in an expedited proceeding pursuant to this Section 11(c) (an "Arbitration"). The Arbitration shall be governed by and subject to the terms of this Section and applicable Idaho law. The parties to the dispute shall promptly designate a single arbitrator. If the parties to the dispute cannot agree upon an arbitrator within thirty (30) days after the initial written notice demanding Arbitration, any party to the dispute may by motion made to an Idaho State Court having jurisdiction request that the court appoint an arbitrator. If and to the extent that the issue giving rise to the dispute involves a specialized expertise, such as, but not limited to, resolution of an issue in connection with accounting for expenses, the parties to the dispute or the Court shall attempt to appoint a Person having at least five (5) years of experience in that area of expertise. The arbitrator shall have the discretion to define the issues involved in the dispute. To the extent possible, all discovery shall be informal in accordance with a procedure and timetable prescribed by the arbitrator. The arbitrator shall employ all reasonable efforts to expedite the resolution of the dispute. The arbitrator shall determine how the cost of the Arbitration shall be allocated between and paid by the parties to the dispute. 12. Title and Mortgage Protection. a. No amendment to this Declaration shall in any manner affect the rights of any Mortgagee pursuant to a Mortgage that is recorded at the time of the recordation of the amendment, or the rights of any successor in interest or title to such Mortgagee, either before or after such Mortgagee or its successor enters into possession or acquires title pursuant to foreclosure, trustee's sale or any arrangement or proceeding in lieu thereof, unless such Mortgagee consents in writing to such amendment. b. A breach of any of the covenants, provisions, or requirements of this Declaration shall not result in any forfeiture or reversion of title or of any other interest in a Subject Lot. A breach of any of the covenants, provisions, or requirements of this Declaration shall not defeat, impair or render invalid the lien of or other rights under any Mortgage; provided, a lien arising under this Declaration shall have priority over the Mortgage if a notice of such lien is recorded prior to the date of recordation of a Mortgage. Unless and until it enters into possession or acquires title pursuant to foreclosure, trustee's sale or any arrangement or proceeding in lieu thereof, a Mortgagee shall have no obligation to take any action to comply with, and may not be compelled to take any action to comply with, any of the covenants, provisions, or requirements of this Declaration except the obligation to subordinate its lien or security interest to this Declaration. 13. Amendment or Termination; Duration of Declaration. This Declaration may be amended or terminated, but only by an instrument filed for record in the office of the County Recorder of Madison County, Idaho that is executed by all of the Owners of the Subject Lots. The term of this Declaration shall continue in full force for a term of fifty (50) years from the date hereof, after which time the same shall be automatically extended for successive periods often (10) years, unless terminated pursuant to this Section by written approval of all Owners. 14. Covenants to Run with Land. This Declaration and the easements and covenants created by this Declaration are intended by Declarant to be and shall constitute covenants running with the land as to each of the Subject Lots, and shall be binding upon and shall inure to the benefit of each Owner or any Person who acquires or comes to have any interest in any Subject Lot, and 11 their respective grantees, transferees, lessees, heirs, devisees, personal representatives, successors, and assigns. This Declaration and all of the easements, covenants, provisions, and requirements hereof shall also inure to the benefit of each and each Person owning any interest in or occupying any portion of a Subject Lot. Each Owner shall comply with, and all interests in all Subject Lots shall be subject to, the terms of this Declaration. By acquiring, in any way coming to have an interest in, or occupying a Subject Lot, the Person so acquiring, coming to have such interest in, or occupying a Subject Lot, shall be deemed to have consented to, and shall be bound by, each and every provision of this Declaration. 15. Enforcement. The Owner of a Subject Lot or any portion of a Subject Lot shall have the right to enforce, through any permitted proceeding at law or in equity, the terms, provisions, restrictions and requirements of this Declaration. Any failure to insist upon the strict performance of or compliance with any of the terms, provisions, covenants and requirements of this Declaration shall not result in or be construed to be an abandonment or termination of this Declaration or any waiver of the right to insist upon such performance or compliance with the terms of this Declaration in the future. If any action or proceeding is brought because of a default under, or to enforce or interpret any of the covenants, provisions, or requirements of, this Declaration (including, without limitation, an arbitration pursuant to Section 11(c)) the Owner prevailing in such action or arbitration shall be entitled to recover from the unsuccessful Owner reasonable attorneys' fees (including those incurred in connection with any appeal), the amount of which shall be fixed by the court or the arbitrator and made a part of any judgment rendered. 16. Effective Date. This Declaration, any amendment or termination hereof, and any supplement hereto shall take effect upon its being filed for record in the office of the County Recorder of Madison County, Idaho. 17. Declarant' s Rights and Reservations. Declarant is undertaking the work of development of the Project. The completion of Declarant's work and the sale, lease and disposition of the Subject Lots is essential to the establishment and welfare of the Property as a commercial project. In order that said work may be completed and said Property be established as a fully occupied project as rapidly as possible, nothing in this Declaration shall be understood or construed to: a. Prevent Declarant from unilaterally making boundary adjustments or consolidating or eliminating Subject Lots in the Project or otherwise revising the Site Plan (recognizing that substantial changes may require compliance with the requirements of the Rexburg Planning and Zoning Department). b. Prevent Declarant or its representatives from erecting, constructing and maintaining on the Property such structures as may be reasonable or necessary for the conduct of its business of completing said work and establishing the Property as a commercial development project and disposing of the Subject Lots by sale, lease or otherwise. 12 c. Prevent Declarant from erecting and maintaining such signs on the Property as may be necessary or advisable for the sale, lease or disposition of the Subject Lots. Upon the sale of a Subject Lot, Declarant shall have the right to perform the matters set forth in the foregoing subparagraphs only upon receipt of the written approval of the Owner of the Subject Lot affected by the work, which approval may be given or withheld in the reasonable discretion of such Owner. 18. Titles, Captions and References. All Section titles or captions in this Declaration are for convenience only, shall not be deemed part of this Declaration and in no way define, limit, extend or describe the scope or intent of any provisions of this Declaration. When this Declaration refers to a Section by number or other designation, such reference shall be deemed to be to the correspondingly numbered Section of this Declaration unless the context refers to another agreement, document or instrument. 19. Pronouns and Plurals. Whenever the contest may require, any pronoun used in this Declaration shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa. 20. Applicable Law and Attorneys' Fees. This Declaration shall be construed in accordance with and governed by the laws of the State of Idaho, without reference to its choice of law rules that would apply the law of another jurisdiction. If any legal action or other proceeding is brought for the enforcement of this Declaration, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Declaration, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys' fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be entitled. Such fees and costs shall include those fees and costs incurred in any bankruptcy proceeding. 21. Counterparts. This Declaration may be executed in any number of counterparts. Each such counterpart of this Declaration shall be deemed to be an original instrument, and all such counterparts together shall constitute but one agreement and may be recorded as one document. 22. Exhibits. All exhibits annexed to this Declaration are expressly made a part of and incorporated in this Declaration as fully as though completely set forth in this Declaration. 23. Time of Essence. Time is of the essence of this Declaration. 24. Not a Public Dedication. Nothing contained herein shall be deemed to be a gift or dedication of any portion of the Common Areas to the general public or for the general public or for any public purposes whatsoever, it being the intention of Declarant that this Declaration be strictly limited to and for the purposes herein expressed. The right of the public or any person to make any use whatsoever of the Common Areas of the Subject Lots herein affected, or any portion thereof (other than any use expressly allowed by a written or recorded map, agreement, deed or dedication) 13 is by permission, and subject to the control of the Owners. Notwithstanding any other provisions herein to the contrary, the Owners of the Subject Lots affected hereby may periodically restrict ingress and egress from the Common Areas in order to prevent a prescriptive easement from arising by reason of continued public use. Any restriction on ingress and egress shall be limited to the minimum period necessary to prevent the creation of a prescriptive easement and shall occur at such at time as to have a minimum effect on the parties. (Signature on following page) EXECUTED the day and year first above written. “DECLARANT " TC Rexburg Investments LLC, a Utah limited liability company By:___________________________ Name: Tyson Cichos Title: Manager STATE OF ____________ ) ) ss. COUNTY OF _____________ ) On this _____ day of _________________, 2026, before me, __________________________, a Notary Public in and for said State, personally appeared Tyson Cichos, known or identified to me to be Manager of TC Rexburg Investments LLC, a Utah limited liability company, or the persons who executed the instrument on behalf of said limited liability company and acknowledged to me that such limited liability company executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. ______________________________________ Notary Public Residing at _____________________________ My commission expires___________________ EXHIBIT "A" TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Legal Description of Property [Attached] EXHIBIT "B" TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS Site Plan [Attached]