BylawsBYLAWS
OF
CHALET MARSEILLE
OWNERS ASSOCIATION, INC.,
An Idaho nonprofit corporation
ARTICLE I
GENERAL
These Bylaws shall govern the operation of the CHALET MARSEILLE OWNERS
ASSOCIATION, INC., a Idaho nonprofit corporation, subject to its Articles of
incorporation. For purposes of these Bylaws, the term "Declaration" shall mean and refer
to the DECLARATION OF COVENANTS, CONDITIONS, EASEMENTS AND
RESTRICTIONS FOR CHALET MARSEILLE being filed of public record in Ada
County, State of Idaho. In the event of a conflict between these Bylaws and the
Declaration, the Declaration shall prevail. Further, the provisions set forth below are
subject to the provisions of the Declaration applicable to the Association, which is
incorporated herein by reference. Unless the context clearly states otherwise, capitalized
terms in these Bylaws shall have the same meaning as in the Declaration.
ARTICLE II
VOTING RIGHTS, MAJORITY OF QUORUM, QUORUM, PROXIES
2.1 Voting Rights. The Association shall have one (I) class of voting
Membership with each Owner of a Lot, including Declarant, allotted one (1) vote for
each Lot owned. In the event there is more than one Owner of a particular Lot, the vote
relating to such Lot shall be exercised by a majority of such Owners as may be
determined among themselves. A vote cast at any meeting by any of such Owners 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, the vote involved shall not be counted for any purpose whatsoever
until the matter is resolved to the reasonable satisfaction of the Association. In such case,
the Association may, but shall not be required to apportion such Lot's vote among the
Owners thereof.
2.2 Majority of Quorum. Unless otherwise expressly provided in these Bylaws or
the Declaration, any action which may be taken by the Association may be taken by a
majority vote of a quorum of the Members of the Association at any meeting of Members.
2.3 Quorum, Except as otherwise provided in these Bylaws, a quorum shall be
those members present in person or by proxy.
2.4 Proxies. Votes may be cast only in person by a Member or by proxy given by
a Member to another Member, except in the case of a purchaser of a Lot, in which case
the purchaser may vote the proxy of the selling Member as permitted by the Declaration.
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Proxies must be in writing and filed with the Secretary of the Association at least twenty-
four (24) hours before the appointed time of each meeting. Every proxy shall be
revocable and shall automatically cease (i) after completion of the meeting for which the
proxy was filed and (ii) upon conveyance by the Member of his or her Lot.
ARTICLE III
ADMINISTRATION
3.1 Association Responsibilities. The Association shall have the responsibility of
administering, maintaining and repairing the Community and otherwise exercising the
rights and performing the duties of the Association set forth in the Declaration.
Notwithstanding the generality of the foregoing, the Declarant intends that the
Community shall be developed as a community for persons 55 or older and intends to
qualify for the age restriction exemption under The Fair Housing Act (Title VIII of the
Civil Rights Act, 42 USC § 3601, et seq.) that allows communities to be operated for
occupancy by persons 55 years of age or older and to satisfy those certain criteria set
forth in the Housing for Older Persons Act (42 USC § 3607(b)(2)(C)), and to adopt
certain age restriction rules and regulations to be enforced by the Association.
3.2 Place of Meetings of Members. Meetings of the Members shall be held in the
Community or at such other suitable place as may be designated by the Board, which
shall be as close as practicable in Ada County, Idaho, and convenient to the Members.
3.3 Annual Meetings of Members The first annual meeting of Members shall be
held within thirty (30) days after seventy-five percent (75%) of the sale of all Lots in the
Community have closed. Thereafter, the annual meetings of the Association shall be held
each year on a date and at a time designated by the Board in accordance with a resolution
of the Board. At the annual meeting, the Members may transact any business of the
Association as may properly come before them including, without limitation, the right to
elect a new Board or fill Board vacancies. Each Eligible Mortgagee of a Lot in the
Community may designate a representative to attend all annual meetings of the Members.
3.4 Special Meetings of Members. Special meetings of the Members may be
called at any time by a majority of the Board or upon a petition signed by Members
holding at least twenty percent (20"10) of the voting power of the Members having been
presented to the Secretary. The notice of any special meeting shall state the time and
place of such meeting and the purpose thereof No business shall be transacted at a special
meeting except as stated in the notice. Each Eligible Mortgagee of a Lot may designate a
representative to attend all special meetings of the Members.
3.5 Notice of Meetings of Members. It shall be the duty of the Secretary of the
Association to mail a notice of each annual or special meeting of Members, stating the
purpose thereof as well as the day, hour and place where it is to be held, to each Member
of record and to each Eligible Mortgagee of a Lot which has filed a written request for
notice with the Secretary. Notice of each meeting shall be mailed, at least ten (10) but
not more than sixty (60) days prior to such meeting. The notice may set forth time limits
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for speakers and nominating procedures for the meeting. The notice shall be considered
served upon (i) deposit of said notice, properly addressed and postage prepaid, in a
regular depository of the United States mail; (ii) if the Association offers to send notice
by electronic mail, sending by electronic mail at the request of the Owner to an electronic
mail address designated in writing by the Owner; or (iii) published in a Community
newsletter or other similar publication that is circulated to each Owner. If no street or
electronic mail address has been furnished to the Secretary, notice shall be deemed to
have been given to a Member if posted in a conspicuous place within the Community
Areas.
3.6 Waiver of Notice. Whenever any notice is required to be given to any Member,
a waiver thereof in writing signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be equivalent to the giving of such
notice. Attendance of a Member at any meeting shall also constitute a waiver of notice of
such meeting, except where such Member attends a meeting for the express purpose of
objecting to the transaction of any business because the Member contends that the
meeting is not properly called or convened.
3.7 Adjourned Meeting. If any meeting of Members cannot be held, the
Members who are present, either in person or by proxy, may adjourn the meeting and
reconvene it at a time not less than five (5) days nor more than thirty (30) days following
the time the original meeting was called. Such adjourned meetings may be held without
further notice if the date, time, and place the meeting is to be reconvened is announced at
the meeting at which such adjournment is taken.
3.8 Order of Business. The order of business at all annual meetings of the
Members shall include but not be limited to, (i) the approval of the minutes from the
preceding annual meeting, (ii) review of the past year and upcoming year financials, and
(iii) elections of directors.
3.9 Action without Meeting. Any action which, under the provisions of the Utah
Revised Nonprofit Corporation Act ("Act") may be taken at a meeting of the Members,
may be taken without a meeting in the manner permitted by the Act, as the Act may be
amended from time to time.
3.10 Minutes, Presumption of Notice. Minutes or a similar record of the
proceedings of meetings of Members, when signed by the President or Secretary, shall be
presumed truthful evidence of the matters set forth therein. A recitation in the minutes of
any such meeting that notice of the meeting was properly given shall be prima facie
evidence that such notice was given.
ARTICLE IV
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BOARD OF DIRECTORS
4.1 Number and Qualification The property, business and affairs of the
Association shall be governed and managed by a Board of Directors. The Board will be
composed of three (3) persons appointed by the Declarant until the rights of the Declarant
are terminated under Section 2.14 of the Declaration, at which time the Members will
elect a new Board composed of at least three (3) persons but no more than seven (7)
persons. The Board is composed of only Owners of Lots, the officer, director, or agent of
Owners who are not natural persons, or conservators or guardians of incapacitated
Owners. The Owners may increase or decrease the number of directors at any annual
meeting, provided, that a proportionate number of directors shall expire annually.
Directors shall not receive any stated salary for their services as directors; provided,
however, that (i) nothing herein contained shall be construed to preclude any director
from serving the Association in some other capacity and receiving compensation
therefore, and (ii) any director may be reimbursed for his or her actual expenses incurred
in the performance of his or her duties.
4.2 Term of Office. When the Declarant's rights are either relinquished or
terminated pursuant to Section 2.14 of the Declaration, the Members shall then have
authority to elect a new Board at the next special or annual meeting. The terms of the
directors shall be staggered so that the terms of one-third of the directors will expire and
successors will be elected at each annual meeting of the Association as provided by these
Bylaws. Thereafter, at such annual meetings, successors to the directors whose terms then
expire shall be elected to serve terms of three (3) years. Directors shall serve until their
successors have been duly elected and qualified unless removed pursuant to Section 4.9.
Any director who fails on three (3) successive occasions to attend Board meetings
(whether regular or special) shall automatically forfeit his or her seat.
4.3 Election Process. Subject to the rights of Declarant under Section 2.14 of the
Declaration, any vacancy occurring on the Board prior to an annual meeting shall be
filled by the affirmative vote of the remaining directors until the next annual meeting or,
in the event there are no remaining directors, by the affirmative vote of a majority of the
votes of the Members at any special meeting of the Members held in accordance with
these Bylaws. Elections shall be conducted by secret written ballot unless a majority of
the quorum consents to having the election conducted orally. A majority of the quorum of
Members shall elect each director. The votes exercised by the Owner or Owners of a Lot
shall be the number of votes the Owner has under Section 2.1 multiplied by the number
of seats to be filled. Said votes may be voted in favor of as many candidates as there are
director seats to be filled. Each director shall serve until his or her successor has been
duly elected and qualified. In the event a seat becomes vacant, whether by reason of
forfeiture or due to another cause, such vacancy shall be filled by an appointment by
Declarant, or, if Declarant's right to select directors has been relinquished or terminated,
such vacancy shall be filled in accordance with Section 4.4.
4A Flllin� Board Vacancies. Generally, each director shall hold his or her office
until his or her successor has been elected and the first meeting involving such successor
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is held. However, if a vacancy in the Board is caused by death, resignation, removal or
judicial adjudication of mental incompetence, the vacancy may be filled by the majority
vote of either the remaining directors or a special meeting of the Members held in
accordance with these Bylaws. The term of office of any director elected to fill a vacancy
created by the resignation or removal of his or her predecessor shall be the balance of the
unserved term of his or her predecessor.
4.5 Powers and Duties. The Board has the powers and duties necessary for the
administration of the affairs of the Association and may do all such acts and things as are
not by law, the Declaration, or by these Bylaws directed to be exercised and done
exclusively by the Members.
4.6 Special Powers and Duties Without prejudice to the foregoing general powers
and duties and such powers and duties as are set forth in the Declaration, the Board,
subject to and limited by the rights of Declarant under the Declaration, is vested with, and
shall be responsible for, the following powers and duties:
(a) To select, appoint, and remove all officers, agents, and employees of the
Association, to prescribe such powers and duties for such officers, agents, and employees,
as may be consistent with law, the Articles, the Declaration, and these Bylaws, and to set
the other terms of their office consistent with the provisions of Article V below as the
Board shall reasonably determine.
(b) To conduct, manage and control the affairs and business of the Association
and to make and enforce such rules and regulations therefore, all as may be consistent
with law, the Articles, the Declaration, and these Bylaws.
(c) To change the principal office for the transaction of the business of the
Association from one location to another within the County ofAda; to designate any place
within said county for the holding of any annual or special meeting or meetings of
Members consistent with the provisions of Article ill hereof, and to adopt and use a
corporate seal and to alter the form of such seal from time to time, as the Board, in its
sole judgment, may deem best.
(d) Subject to the Declaration, to borrow money, pledge Assessments as collateral
and to incur indebtedness for the purposes of the Association, and to cause to be executed
and delivered therefore, in the Association's name, promissory notes, bonds, debentures,
deeds of trust, mortgages, pledges, hypothecations or other evidences of debt and
securities.
(e) To incur reasonable expenditures for any of the various Association purposes
and to provide, or cause to be provided, adequate reserves for replacements as it shall
deem to be necessary or advisable in the interest of the Association or welfare of its
Members. At all times until proper expenditure or distribution thereof for the purposes for
which they are received occurs, the funds collected by the Board from the Members shall
be held in trust for Members.
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(f) To contract for and pay maintenance, gardening, utilities, materials and
supplies, repair, and services relating to the Community Areas, and to employ personnel
necessary for the operation of the Association and the Community, including legal and
accounting services.
(g) To grant easements over the Community Areas where necessary for utilities
and sewer facilities to serve the Lots.
(h) To publish and adhere to the HOPA Age 55 Criteria policies and procedures
that demonstrate the intent to operate the Community as a neighborhood for persons who
are 55 years of age or older, and to establish policies for age verification of each Owner
or Occupant by reliable surveys and affidavits, which surveys and affidavits shall be of
the type that may be admissible in administrative and judicial proceedings for the
purposes of such verification, a driver's license, birth certificate, passport, immigration
card or military identification may be used.
(i) To exercise all other rights and enforce all other provisions set forth in the
Declaration, these Bylaws, or other agreements of the Association.
4.7 ManaRrement Agent. The Board, may appoint for the Association a
professional management agent at a compensation established by the Board, consistent
with general law and the Act.
4.8 Books. Audit. The Board shall cause to be maintained a full set of books and
records showing the financial condition of the affairs of the Association in a manner
consistent with generally accepted accounting principles and, if requested by Members
holding twenty percent (20%) of the voting rights of the Association, shall obtain an
independent certified audit of such books and records but not more often than annually. A
copy of any such audit shall be delivered to a Member within thirty (30) days after the
completion of such audit upon written request from a Member. A balance sheet and an
operating (income) statement for the Association shall be distributed to each Member
(and to any Eligible Mortgagee on a Lot in the Community upon written request) within
sixty (60) days after each of the following accounting dates ("Accounting Date"):
(a) The last day of the 9th full calendar month following the date of closing of the
first sale of a Lot to a Member;
(b) Thereafter, the last day of each of the Association's fiscal years.
The balance sheet and operating statements shall cover the period ("Accounting
Period") between the most recent Accounting Date prior to the issuance of the balance
sheet and operating statement and the Accounting Date immediately prior to that
Accounting Date. Each balance sheet shall show each item reflected on the balance sheet
at the beginning of the Accounting Period and at the end of the Accounting Period. The
operating statement for the first Accounting Period referred to in subparagraph (a) above
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shall include a schedule of Assessments received or receivable itemized by Lot number
and by the name of the persons or entities assessed.
4.9 Removal of Directors. Excepting only directors named in the Articles or
selected by Declarant, any director may be removed from the Board with or without
cause, by a majority vote of the Members. Subject to the rights of Declarant under the
Declaration, at any regular or special meeting of the Members duly called, anyone or
more of the directors may be removed with or without cause by a majority vote of the
Members of the Association, and a successor may then and there be elected to fill the
vacancy thus created. Any director whose removal has been proposed by the Members
shall be given an opportunity to be heard at the meeting. If more than one director is to be
removed at anyone time, each Member may accumulate his or her votes and vote for or
against such removal of one or more of the directors in the number of votes equal to his
or her share of the voting power as set forth in the Section 2.1 multiplied by the number
of directors sought to be removed; in such event, no director shall be removed if the
number of votes cast against his or her removal exceeds the number of votes cast for his
or her removal. If any or all of the directors are so removed, new directors may be elected
at the same meeting.
4.10 Organizational Meeting. The first regular organizational meeting of a newly
elected Board shall be held within thirty (30) days after election of the Board, at such
place as shall be fixed and announced by the directors at the meeting at which such
directors were elected, for the purpose of organization, election of officers, and the
transaction of other business. No notice shall be necessary to the newly elected directors
in order legally to constitute such meeting, provided a majority of the whole Board shall
be present.
4.11 Other Regular Meetings. Other regular meetings of the Board may be held at
such time and place within the Community as shall be determined, from time to time, by
a resolution adopted by a majority of a quorum of the directors; provided, however, that
such meeting shall be held no less frequently than annually. Notice of regular meetings of
the Board shall be given to each director, personally or by mail, telephone, telegraph,
email, fax, or by other direct means at least seventy-two (72) hours prior to the date
named for such meeting.
4.12 Special Meeting. Special meetings of the Board may be called by the
President (or, if he is absent or refuses to act, by the Vice President) or by any two (2)
directors. At least seventy-two (72) hours notice shall be given to each director,
personally or by mail, telephone, telegraph, email, fax, or by other direct means, which
notice shall state the time, place and the purpose of the meeting, and shall be posted at a
prominent place or places within the Community Areas. If served by mail, each such
notice shall be sent, postage prepaid, to the address reflected on the records of the
Association, and shall be deemed given, if not actually received earlier, at 5:00 o'clock
p.m. on the second day after it is deposited in a regular depository of the United States
mail as provided herein. Whenever any director has been absent from any special meeting
of the Board, an entry in the minutes to the effect that notice has been duly given shall be
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prima facie evidence that due notice of such meeting was given to such director as
required by law and as provided herein.
4.13 Waiver of Notice/Form of Meet. . Before or at any meeting of the Board,
any director may, in writing, waive notice of such meeting and such waiver shall be
deemed equivalent to the giving of such notice. Attendance by a director at any meeting
of the Board shall be a waiver of notice by him of the time and place thereof if all the
directors are present at any meeting of the Board, no notice shall be required and any
business may be transacted at such meeting. The transactions of any meeting of the entire
Board, however called and noticed or wherever held, shall be valid. All such waivers,
consents and approvals shall be filed with the records of the Association or made a part of
the minutes of the meeting. Meetings of the Board may be held in person or
telephonically.
4.14 Quorum and Adjournment. Except as otherwise expressly provided herein, at
all meetings of the Board, a majority of the directors shall constitute a quorum for the
transaction of business, and the acts of the majority of the directors present at a meeting
at which a quorum is present shall be the acts of the Board.
4.15 Action Without Meeting. The directors shall have the right to take any action
in the absence of a meeting in any manner permitted by the Act, as the Act may be
amended from time to time.
4. 16 Fidelity Bonds. The Board may require that all officers and employees of the
Association handling or responsible for Association funds shall furnish adequate fidelity
bonds. The premiums on such bonds shall be paid by the Association.
4.17 Committees. The Board, by resolution, may, from time to time, designate such
committees as it shall desire and may establish the purposes and powers of each such
committee created. The resolution designating and establishing the committee shall
provide for the appointment of its members and a chairman. The resolution shall state the
purposes of the committee, and shall provide for reports, termination, and other
administrative matters as deemed appropriate by the Board.
4.18 Meetings Open to Members. While no notice need be given to the Members of
meetings by the Board, all meetings of the Board shall be open to Members; provided,
however, that the Members who are not on the Board may not participate in any
deliberation or discussion unless expressly so authorized by the Board. The Board may,
with the approval of a majority of a quorum of its directors, adjourn the meeting and
reconvene in executive session at the exclusion of the Members to discuss and vote upon
personnel matters, litigation in which the Association is or may become involved, and
orders of business of similar nature. The nature of any and all business to be considered
in executive session shall first be announced in open session.
ARTICLE V
OFFICERS
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5.1 Designation. At the option of the Board, the principal officers of the
Association shall be a President, Vice President, and Secretary, all of whom shall be
elected by and from among the Board, subject to the rights of Declarant under the
Declaration.
5.2 Election of Officers. Subject to the rights of Declarant under the Declaration,
the officers of the Association shall be elected annually by the Board, and each officer
shall hold his or her office at the pleasure of the Board until he shall resign or be removed
or otherwise disqualified to serve or his or her successor shall be elected and qualified to
serve.
5.3 Removal of Officers. Subject to the rights of Declarant under the Declaration
and upon an affirmative vote of a majority of the entire Board, any officer may be
removed, either with or without cause, and his or her successor elected at any regular
meeting of the Board, or at any special meeting of the Board called for such purpose. Any
officer may resign at any time by giving written notice to the Board or to the President or
Secretary of the Association. Any such resignation shall take effect at the date of receipt
of such notice or at any later time specified therein; and unless otherwise specified in said
notice, acceptance of such resignation by the Board shall not be necessary to make it
effective.
5.4 Compensation. No officers shall receive compensation for any services they
may render to the Association as an officer; provided, however, that the officers may be
reimbursed for expenses incurred in performance of their duties as an officer to the extent
such expenses are approved in advance by the Board.
5.5 President. The President shall be the chief executive officer of the Association.
He shall preside at all meetings of the Association and the Board. He or she shall have all
of the general powers and duties which are usually vested in the office of the President of
a corporation, including, but not limited to, the power, subject to the powers of the
directors under Article IV, to appoint committees from among the Members from time to
time as he may in his or her discretion decide is appropriate to assist in the conduct of the
affairs of the Association. The President shall, subject to the control of the Board, have
general supervision, direction, and control of the business of the Association. The
President shall be an ex officio Member of all standing committees, and he shall have
such other powers and duties as may be prescribed by the Board or these Bylaws of the
Association.
5.6 Vice President. The Vice President shall take the place of the President and
perform his or her duties whenever the President shall be absent, disabled, refuses or
unable to act. If neither the President nor the Vice President is able to act, the Board shall
appoint some other Member of the Board to do so on an interim basis. The Vice President
shall also perform such other duties as shall from time to time be imposed upon him by
the Board or these Bylaws of the Association.
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5.7 Secretary. The Secretary shall keep the minutes of all meetings of the Board
and the minutes of all meetings of the Association at the principal office of the
Association or at such other place as the Board may order. The Secretary shall keep the
seal of the Association in safe custody and shall have charge of such books and papers as
the Board may direct; and the Secretary shall, in general, perform all of the duties
incident to the office of Secretary. The Secretary shall give, or cause to be given, notices
of meetings of the Members of the Association and of the Board required by these
Bylaws or by law to be given, however, no notice, if otherwise timely and proper will not
be deemed invalid merely because it was not given personally by the Secretary. The
Secretary shall maintain a book of record Owners, listing the names and addresses of the
Members as furnished the Association, and such books shall be changed only at such
time as satisfactory evidence of a change in ownership of a Lot is presented to the
Secretary. The Secretary shall perform such other duties as may be prescribed by the
Board.
The Secretary shall also have responsibility for Association funds and securities and
shall be responsible for keeping, or causing to be kept, full and accurate accounts, tax
records and business transactions of the Association, including accounts of all assets,
liabilities, receipts and disbursements in books belonging to the Association. The
Secretary shall be responsible for the deposit of all monies and other valuable effects in
the name, and to the credit, of the Association in such depositories as may from time to
time be designated by the Board. The Secretary shall cosign all checks and promissory
notes, on behalf of the Association. The Secretary shall disburse the funds of the
Association as may be ordered by the Board, in accordance with the Declaration, shall
render to the President and directors, upon request, an account of all of his or her
transactions and of the fuIancial conditions of the Association, and shall have such other
powers and perform such other duties as may be prescribed by the Board or by these
Bylaws.
ARTICLE VI
OBLIGATIONS OF MEMBERS
6.1 Enforcement of Assessments. If an Owner fails or refuses to pay an
Assessment when due, the Board shall give written notice to the Owner informing him of
the amount of the Assessment due, including any interest or late payment fee, notifying
him that pursuant to applicable law, the utility services paid as a Community Expense
and the right of access and use of recreational facilities which constitute Community
Areas will be terminated if payment of the Assessment is not received within 72 hours.
The notice must also inform him that he has the right to request an informal hearing by
submitting a written request to the Board within 14 days after the date on which the
owner receives the notice. If a hearing is requested, utility services and use of recreational
facilities may not be terminated until after the hearing is conducted and a final decision
has been entered. After notice, if the Owner of a Lot does not request a hearing within 14
days and fails to pay his or her Assessment, that amount constitutes a lien which the
Board may record. The Board may enforce the lien by sale or foreclosure of the Owner's
interest in his or her Lot.
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6.2 Maintenance. Repair and Replacement.
(a) Every Member must perform promptly, at his or her sole cost and expense,
all maintenance, repair and replacement work on the interior elements of his or her
Residence, as further described and required in the Declaration. The Association shall
perform all maintenance, repair and replacement work on the Community Areas, the
exterior elements of the Residences, and all landscaped and improved areas of the Lots,
as further described and required in the Declaration.
(b) As further provided in the Declaration, each Member shall reimburse the
Association for any expenditures incurred in repairing or replacing any portion of the
Community Areas owned by the Association which are damaged through the fault of
such Member. Such expenditures shall include all court costs and reasonable attorneys'
fees incurred in enforcing any provision of these Bylaws or the Declaration.
ARTICLE VII
AMENDMENTS TO BYLAWS
Subject to the Declaration and the Declarant's right to make unilateral amendments to
the Declaration, these Bylaws may be amended by the Association in a duly constituted
meeting of the Members for such purpose. No amendment to these Bylaws shall take
effect unless approved by at least a majority of a quorum of Members present, in person
or by proxy, at a duly constituted regular or special meeting of the Members. The prior
written approval of each Eligible Mortgagee on a Lot in the Community must be secured
before any material amendment to these Bylaws may take effect which may adversely
affect any Mortgagee's rights or security interests, and this sentence may not be amended
without such prior written approval of a majority of such Eligible Mortgagees.
ARTICLE VIII
MEANING OF TERMS
All terms appearing in these Bylaws initially capitalized shall have the same
meanings as are applied to such terms in the Declaration unless otherwise defined herein.
ARTICLE IX
CONFLICTING PROVISIONS
In case any of these Bylaws conflict with any provisions of the laws of the State of
Idaho or the Declaration, such conflicting provision of the Bylaws shall be null and void,
but all other Bylaws shall remain in full force and effect to the extent permitted by law.
ARTICLE X
INDEMNIFICATION OF DIRECTORS AND OFFICERS
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Except to the extent that such liability or damage or injury is covered by insurance
proceeds, the Board may authorize the Association, to the extent permitted by law and by
the Act, to pay expenses incurred by, or to satisfy a judgment or fine rendered or levied
against, a present or former director, officer, committee Member, or employee of the
Association in an action brought by a third party against such person, whether or not the
Association is joined as a party defendant, to impose a liability or penalty on such person
for an act alleged to have been committed by such person while a director, officer,
committee Member, or employee so long as: the Board determines in good faith that such
director, officer, or employee was acting in good faith within what he reasonably
believed to be the scope of his or her employment or authority and for a purpose which
he reasonably believed to be in the best interests of the Association or its Members.
Payments authorized hereunder include amounts paid and expenses incurred in settling
any such action or threatened action. The provisions of this Section shall apply to the
estate, executor, administrator, heirs, legatees, or devisees of a director, officer,
committee Member, or employee, and the term "person" where used in the foregoing
Section shall include the estate, executor, administrator, heirs, legatees, or devisees of
such person.
ARTICLE XI
MISCELLANEOUS
11.1 Execution of Documents. The Board, except as in these Bylaws otherwise
provided, may authorize any officer of officers, agent or agents, to enter into any contract
or execute any instrument in the name and on behalf of the Association, and such
authority may be general or confined to specific instances; and unless so authorized by
the Board, no officer, agent, committee Member, or employee shall have any power or
authority to bind the Association by any contract or engagement or to pledge its credit or
to render it liable for any purpose or in any amount.
11.2 Inspection of Bylaws. The Association shall keep in its office for the
transaction of business the original or a copy of these Bylaws as amended or otherwise
altered to date, certified by the Secretary, which shall be open to inspection by the
Owners and all Eligible Mortgagees at all reasonable times during regular office hours.
The Board may require payment of the cost of reproducing copies of documents
requested by a Member.
11.3 Fisca_. The fiscal year of the Association shall be determined by the
Board and, having been so determined, is subject to change from time to time as the
Board shall determine.
11.4 Membership Book. The Association shall keep and maintain in its office for
the transaction of business a book containing the name and address of each Member.
Proper termination or transfer of ownership of any Lot by an Owner shall be recorded in
the book, together with the date on which such ownership was transferred.
ARTICLE XII
8/30/07 DRAFT 12
ENFORCEMENT
In the event of a violation of the Declaration, these Bylaws, the Rules and
Regulations of the Community, or any HOPA Age 55 Criteria policies and procedures as
described in Section 3.1 above, the Board may enforce the Declaration, these Bylaws,
such Rules and Regulations or such Age 55 Criteria policies and procedures in any
manner prescribed by law and shall have all rights and remedies available at law and in
equity.
ARTICLE XIII
MEMBERSHIP IN ASSOCIATION
Membership in the Association, and transfers thereof, shall be limited and determined
as provided in the Declaration and the Articles. There shall be as many Members as there
are Owners of Lots in the Community.
(Secretary's Certification Follows)
8/30/07 DRAFT 13
CERTIFICATION
I, the undersigned, do hereby certify:
That I am the duly elected and acting Secretary of the Chalet Marseille Owners
Association, Inc., an Idaho nonprofit corporation;
That the foregoing Bylaws constitute the original Bylaws of said Association, as duly
adopted at a meeting of the Board thereof held on the day of
200
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the seal
of said Association (if any) this day of 200
Secretary
Certified to be the Bylaws adopted by the Board of the CHALET MARSEILLE
OWNERS ASSOCIATION, INC., dated , 200 .
Secretary
8/30/07 DRAFT 14
DECLARATION OF COVENANTS, CONDITIONS,
EASEMENTS AND RESTRICTIONS
FOR
CHALET MARSEILLE
This DECLARATION OF COVENANTS, CONDITIONS, EASEMENTS AND
RESTRICTIONS for Chalet Marseille is made as of this day of
200_, by RC Meridian Partners, LLC, an Idaho Limited Liability Company
('Declarant").
RECITALS
A. Declarant is the owner of certain real property (the 'Property") located in Ada
County, Idaho, which property is described in Exhibit "A," which is attached hereto and
incorporated herein by this reference.
B. Declarant desires to develop a residential planned unit development known as
Chalet Marseille on the Property, as shown on the Plat (the "Community"). Declarant
intends to develop the Community to consist of up to seventy (70) Lots and seventy (70)
Residences.
C. Declarant intends to protect and enhance the value and desirability of the
Community through the use of a coordinated plan of development and the terms of this
Declaration. Moreover, by the terms of this Declaration, the Declarant intends to
establish a community for persons 55 or older, to qualify for the age restriction
exemption under The Fair Housing Act (Title VIII of the Civil Rights Act, 42 USC §
3601, et seq.) that allows communities to be operated for occupancy by persons 55 years
of age or older, to satisfy those certain criteria set forth in The Housing for Older Persons
Act (42 USC § 3607(b)(2)(C)) and to adopt certain age restriction rules and regulations
and age verification procedures. It is assumed that each purchaser of a Residence in the
Community will be motivated to preserve the Community through community
cooperation and by complying with not only the letter but also the spirit of this
Declaration. This Declaration is designed to complement local governmental regulations,
and where conflicts occur, the more restrictive requirements shall prevail.
D It is desirable for the efficient management and preservation of the value and
appearance of the Community to create a nonprofit corporation to which shall be
assigned the powers and delegated the duties of managing certain aspects of the
Community; maintaining and administering the Community Areas; maintaining,
repairing or replacing for the common benefit of the Owners all exterior elements of a
Residence such as exterior doorways, windows, rain gutters, shingles, address signs and
all other similar exterior structural improvements of the Residences; maintaining,
repairing or replacing for the common benefit of Owners all landscaped areas, concrete
improvements, fences, patios and driveways located on a Lot; administering, collecting
and disbursing funds pursuant to the provisions regarding assessments and charges
8/30/07 DRAFT
hereinafter created and referred to; and to perform such other acts as shall generally
benefit the Community and the Owners. Chalet Marseille Owners Association, Inc., an
Idaho nonprofit corporation, has or will be incorporated under the laws of the State of
Idaho for the purpose of exercising the aforesaid powers and functions.
E Each Owner shall receive fee title to his or her Lot and one Membership in
the Association as provided herein.
F. By this Declaration, Declarant intends to establish a common scheme and plan
for the possession, use, enjoyment, repair, maintenance, restoration and improvement of
the Community and the interests therein conveyed and to establish thereon a planned
community.
NOW, THEREFORE, Declarant hereby declares, covenants and agrees as follows:
ARTICLE 1
DEFINITIONS
Each of the Recitals A through F are incorporated into and made a part of this
Declaration for all purposes. Unless the context clearly indicates otherwise, the following
capitalized words, phrases or terms used in this Declaration shall have the meanings set
forth in this Article 1. (Certain terms not defined herein are defined elsewhere in this
Declaration.)
1.1 "Additional Land" means any parcel of property located within a three-mile
radius of the exterior boundaries of the real property described in Exhibit "A". A
description of the Additional Land is set forth in this Declaration solely for purposes of
identification. This Declaration is not intended as and should not be deemed to constitute
any lien, encumbrance, restriction, or limitation upon the Additional Land unless and
until it is added to the existing Community in accordance with the provisions of this
Declaration.
1•2 "Adjoining Owner" means the immediately adjoining Owner that owns a
Residence with a common Party Wall touching the contiguous, neighboring Residence of
a different Owner.
1.3 "Annual Assessments" means the Assessments levied pursuant to Section 6.2.
1.4 "Articles" means the Articles of Incorporation of the Association, as amended
from time to time.
1.5 "Assessment" means any Annual Assessment or Special Assessment.
1.6 "Assessment Lien" means the lien created and imposed by Section 6.5.
8/30/07 DRAFT 2
1.7 "Association" means the Chalet Marseille Owners Association, Inc., an Idaho
nonprofit corporation and its successors and assigns.
1.8 "Association Rules" means the rules and regulations adopted by the Board
pursuant to Section 5.4, as amended from time to time.
1.9 'Board" means the Board of Directors of the Association.
1.10 'Bylaws" means the Bylaws of the Association, as amended from time to
time.
1.11 "Community" means such term as described and set forth in Recital B.
1.12 "Community Areas" means: (a) all roadway improvements within the
Community shown on the Plat as private roads and which are not accepted for dedication
by a Municipal Authority; (a) all land, and the Improvements situated thereon, within the
Community that Declarant designates as a Community Area on the Plat or other
Recorded instrument and other real property which the Association now or hereafter
owns in fee for the benefit of the Owners for as long as the Association is the owner of
the fee, which may include without obligation or limitation a clubhouse, movie theater,
fitness facility, picnic area(s), walkways, trails and open space, landscaped areas,
Community and street signage, lighting, sidewalks, and other similar Improvements; and
(b) any real property or Improvements within the Community 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, systems and similar Improvements, whether public or private -
company owned, located on a Lot or lying outside of the exterior boundaries of the
Residences as further described in Section 1.35 below.
1.13 "Community Documents" means this Declaration, the Articles, the Bylaws,
the Association Rules, as each document may be amended from time to time.
1.14 "Community Expenses" means expenditures made by or financial liabilities
of the Association, together with any allocations to reserves as further described in 6.2.:
below.
1.15 'Declarant" means RC Meridian Partners, LLC, an Idaho corporation, its
successors, and any Person to whom it may expressly assign any or all of its rights under
this Declaration.
1.16 'Declarant Affiliate" means any Person directly or indirectly controlling,
controlled by or under common control with Declarant, and shall include, without
limitation, any general or limited partnership, limited liability company, limited liability
partnership or corporation in which Declarant (or another Declarant Affiliate) is a general
partner, managing member or controlling shareholder.
8/30/07 DRAFT 3
1.17 "Declaration" means this Declaration of Covenants, Conditions, Easements
and Restrictions for Chalet Marseille, as amended from time to time.
1.18 "Eligible Mortgagee" means and refers to a First Mortgagee who has
requested notice of certain matters from the Association in accordance with Section 9.1
of this Declaration.
1.19 "HOPA" means the Housing for Older Persons Act (42 USC §3607(b)(2)(C»,
as amended from time to time.
1.20 "Improvement(s)" means any improvement now or hereafter constructed at the
Community and includes anything which is a structure and appurtenances thereto of
every type and kind, including but not limited to any (a) Residence, building, screening
wall, other accessory building, fence or wall; (b) any walkway, garage, road, driveway or
parking area; (c) any mailbox, sign, shed, covered patio, stairs, deck, fountain, artistic
work, craft work, figurine, ornamentation or embellishment of any type or kind (whether
or not affixed to a structure or permanently attached to a Lot); (d) any clubhouse, patio,
courtyard, barbeque, benches, radio or television antenna or receiving dish; (e) any
paving, exterior lights, curbing, trees, shrubs, hedges, grass, windbreak or other
landscaping improvements of every type and kind; (t) any excavation, fill, retaining wall
or other thing or device which affects the natural flow of surface water or the flow of
water in a natural or artificial stream, wash or drainage channel, and related fixtures and
equipment and (g) any other structure of any kind or nature.
1.21 "Lessee" means the lessee or tenant under a lease, oral or written, of any
Residence (or part thereof), including an assignee of the lessee's or tenant's interest under
a lease.
1.22 "Lot(s)" means a portion of the Community intended for independent
ownership and residential use and designated as a lot on the Plat and, where the context
indicates or requires, shall include any Residence, building, structure or other
Improvements situated on the Lot.
1.23 "Member" means any Person who is a member of the Association as provided
in Article 5.
1.24 "Membership" means a membership in the Association and the rights granted
to the Members, including Declarant, pursuant to Article 5 to participate in the
Association.
1.25 "Mortgage" means a deed of trust or a mortgage Recorded against a Lot, or
any part thereof or interest therein. A "First Mortgage" means a Mortgage having priority
as to all other Mortgages encumbering a Lot, or any part thereof or interest therein.
1.26 "Mortgagee" means a beneficiary under a deed of trust, or a mortgagee under
a mortgage, Recorded against a Lot. A "First Mortgagee" means any Person or entity
8/30/07 DRAFT 4
holding a First Mortgage including any insurer or guarantor of a First Mortgage. Any and
all Mortgagee protections contained in this Declaration shall also protect the Declarant as
the holder of a First Mortgage Recorded against a Lot or any part thereof or interest
therein.
1.27 "Municipal Authority" means any applicable governmental entity or
municipality which has jurisdiction over all or some part of the Community including
without limitation Meridian City, Idaho and Ada County, Idaho.
1.28 "Occupant" means any Person other than an Owner who has actual use,
possession or control of a Residence, or any portion thereof, and shall include, without
limitation, Persons, other than the Owner, who reside in any Residence.
1.29 "Owner" means the Person or Persons who individually or collectively own
fee title to a Lot, including Declarant, and purchasers under installment purchase
contracts. "Owner" shall not include Persons who hold an interest in a Lot merely as
security for the performance of an obligation.
1.30 'Party Wall" means a wall that forms part of a Residence and is located on or
adjacent to a boundary line between two or more adjoining Lots owned by more than one
Owner and is used or is intended to be used by the Owners of the benefited Residences,
which wall maybe separated by a sound board between two or more Residences.
1.31 'Person" means a natural person, corporation, business trust, estate, trust,
partnership, association, limited liability company, limited liability partnership, joint
venture, government, governmental subdivision or agency, or other legal or commercial
entity.
1.32 'Plat" means that certain planned community plat entitled "COUNTRY
PARK VILLAS" duly recorded, as the same may be amended from time to time, and
which is incorporated herein by this reference.
1.33 'Property" means such tenn as described and set forth in Recital A. The term
"Property" shall also include any of the Additional Land that is made subject to this
Declaration by the recordation of a Supplemental Declaration and an amendment to the
Plat, which inclusion shall be effective from and after the date of recordation of such
Supplemental Declaration and amended Plat.
1.34 'Record." 'Recording," 'Recorded" and 'Recordation" means placing or
having placed an instrument of public record in the official records of Ada County, Idaho.
1.35 "Residence(s)" means any dwelling unit situated upon a Lot and attached to
one or more other dwelling units in which each unit has its own principal access to the
outside, no unit is located over another unit, and each dwelling unit is separated from any
other unit by one or more common Party Walls, designed and intended for separate,
independent residential use and occupancy.
8/30/07 DRAFT 5
1.35.1 For purposes of this Declaration, the "interior elements" of
the Residences shall include all pipes, wires, conduits, lines or systems
(which for brevity are herein and hereafter referred to as utilities), whether
public or private -company owned, located from the connecting point to the
exterior of the Residence where such utilities enter the Residence (stubbed
location) and continuing into the interior portion of such Residence, interior
spaces, flooring, partitions, Party Walls, plaster, gypsum drywall, wallpaper,
paint, ceilings, all other materials constituting part of the interior surfaces of
the Residences and other similar interior fixtures and Improvements as such
interior elements may be further determined by the Board in its sole and
exclusive discretion.
1.35.2 For purposes of this Declaration, the "exterior elements" of
the Residences shall include all utilities, whether public or private -company
owned, located on the Lots and which end at the connecting point to the
exterior of the Residence where such utilities enter the Residence and are
stubbed to provide utility service to the Residence but do not include any
interior portion of such utilities located within a Residence which constitute
interior elements as further defined in Section 1.35.1 above, rooftops,
shutters, doorsteps, stoops, patios, exterior doors, exterior windows and
other similar exterior Improvements as may be further determined by the
Board in its sole and exclusive discretion, but shall specifically exclude all
exterior screen doors which have been or may be installed by an Owner.
1.35.3 In the event of any disagreement or uncertainty as to which
improvements or elements of a Residence constitute "interior elements" or
"exterior elements", the Board shall have the sole and exclusive power to
make such determination, including without limitation the sole power and
authority to determine which portions of the utilities lie within the exterior
or interior portions of a Residence, and the Board's determination shall be
conclusive, final and unappealable.
1.36 "Special Assessment" means any Assessment levied pursuant to Section 6.3.
1.37 "Supplemental Declaration" means any recorded declaration, except for this
Declaration, covering Lots on the Property recorded by Declarant to subject all or a
portion of the Additional Land to this Declaration as further described in Section 2.5
below, as such Supplemental Declaration may be amended from time to time.
ARTICLE 2
DECLARANT'S RIGHTS
AND OWNERS' OBLIGATIONS
2.1 Property Subject to this Declaration. This Declaration is being recorded to
establish a general plan for the development and use of the Community in order to protect
and enhance the value and desirability of the Community. All of the property within the
8/30/07 DRAFT 6
Community shall be held, sold and conveyed subject to this Declaration, including any of
the Additional Land hereafter made subject to this Declaration by the recordation of a
Supplemental Declaration. By acceptance of a deed or by acquiring any interest in any of
the Property subject to this Declaration, each Person, for himself, herself or itself, and his,
her or its heirs, personal representatives, successors, transferees and assigns, binds
himself, herself or itself, and his, her or its heirs, personal representatives, successors,
transferees and assigns, to all of the provisions, restrictions, covenants, conditions, rules
and regulations now or hereafter imposed by this Declaration. In addition, each such
Person by so doing acknowledges that this Declaration sets forth a general scheme for the
development and use of the Property and evidences his, her or its agreement that all the
restrictions, conditions, covenants, rules and regulations contained in this Declaration
shall run with the land and be binding on all subsequent and future Owners, grantees,
purchasers, assignees, Lessees and transferees thereof. Furthermore, each such Person
fully understands and acknowledges that this Declaration shall be mutually beneficial,
prohibitive and enforceable by the Association and all Owners.
2.2 Condominium. Declarant and each Owner hereby agree and understand that
the Property is, by execution and recording of this Declaration, being submitted to the
provisions of the Idaho Condominium Ownership Act, Reference Idaho State Code(the
"Act"). This Declaration does not constitute a declaration as provided for in the Act and
the provisions of the Act shall not be applicable to Property or any portion thereof,
including without limitation all or a portion of the Additional Land made subject to this
Declaration by the recordation of one or more Supplemental Declarations.
2.3 Lots and Residences. The Community shall consist of up to seventy (70) Lots,
each of which is to be improved with a Residence, as such Lots are depicted on the Plat,
subject to the Declarant's right to expand the Community pursuant to the provisions of
Section 2.5 below. Declarant reserves the right to adjust the location of each Residence
in order to facilitate proper planning in the sole and exclusive discretion of the Declarant,
subject to the terms and provisions of Section 2.12. Moreover, for four (4) years
following the recording of this Declaration, Declarant, to the extent permitted by law,
reserves the unilateral right to reconfigure, eliminate and/or change the design and
arrangement of the Community Areas, and any Residence and to alter the boundaries
between Lots as it shall determine in its sole and exclusive discretion, so long as the
Declarant or a Declarant Affiliate owns the Lots or Residences so altered or obtains and
duly records the written authorization of the Owner of any altered Lot or Residence not
owned by Declarant. Such reconfiguration right shall include the right to change or alter
the exterior elements or design of the Residences, including, but not limited to, altering or
changing the placement, size, number, and configuration of doors, entryways, windows,
and similar items, and to modify the principal type of construction and building materials
of such Residences. Any change of the boundaries between Residences, Lots or
Community Areas shall not require an amendment to this Declaration or to the Plat.
2.4 The Association. In addition to any other Association obligations and rights
described in this Declaration, the Association shall have the following obligations and
rights:
8/30/07 DRAFT 7
2.4.1 As further described in Article 7 below, the Association shall
maintain in a safe, sanitary and attractive condition (i) the Community Areas and
all Improvements thereon; (ii) the exterior elements of the Residences; and (iii)
the landscape areas, concrete improvements, fences, patios and driveways located
on a Lot. Such maintenance responsibility shall include, but shall not be limited to,
painting, maintenance, repair and replacement of the stucco, brick, concrete and
roofing materials of all Residences and the surrounding areas of the Lot including,
without limitation, all driveways, including snow removal, the control of all
weeds and other unsightly vegetation, rubbish, trash, garbage and landscaping and
all portion of the Community Areas, subject to the willful and negligent act
provisions described in Sections 2.7 and 7.4. Each Owner shall immediately
repair and replace all broken glass of a Residence at such Owner's sole and
exclusive expense. However, the Association shall repair and replace all broken
glass of a Residence caused by the willful or negligent act of an agent acting on
behalf of the Association in carrying out the Association's duties to maintain the
Community Areas, certain portions of the Lots or exterior elements of the
Residences, which broken glass repair and replacement shall constitute a
Community Expense.
2.4.2 The Association shall assess and collect fees from the Members in
accordance with the provisions hereof and the Bylaws. In particular, in order to
preserve a Community maintenance standard, property values and uniform
appearances of all Residences within the Community, the Association shall have
the express obligation to repair, replace and maintain all exterior elements and
improvements of the Residences, including without limitation, all doorways,
windows, stucco, rain gutters, shingles, address signs and all other similar exterior
elements of the Residences as the Board may determine in its sole and exclusive
discretion.
2.4.3 As also described in Section 5.4 below, the Board shall have the
right to promulgate and adopt the Association Rules, which Association Rules
may further limit and/or expand upon the use restrictions applicable to the
Community as described therein without requiring a Recorded amendment to this
Declaration.
2.5 Additional Land. Declarant reserves the right to subject all or a portion of the
Additional Land to this Declaration by the recordation of one or more Supplemental
Declarations without the prior consent of any other party or Owner except for the Owner
of all or any portion of the Additional Land. Declarant shall identify in each
Supplemental Declaration the Additional Land, specify the number of additional Lots and
Residences, if any or if known, to be added to the Community, and the number of votes
and Assessment units to be allocated to the Additional Land based upon the formulas
described in this Declaration. The owner of such Additional Land, if different from the
Declarant, shall also execute the Supplemental Declaration. Upon recordation of the
Supplemental Declaration, the subject Additional Land shall be deemed added to the
8/30/07 DRAFT 8
Property and the number of Lots and Residences, Assessment units and votes shall be
automatically increased to include the Additional Land's Lots and Residences and other
items for purposes of this Declaration. The Supplemental Declaration may modify any of
the covenants, conditions and restrictions otherwise applicable to the Additional Land in
the Supplemental Declaration where such changes are deemed necessary in the discretion
of the Declarant to address a unique condition affecting or relating to the Additional Land
that is the subject of the Supplemental Declaration or to more fairly allocate the benefits
and obligations of membership within the Association. In the event that Declarant and the
owner of any of the Additional Land fail to reach an agreement on the terms of inclusion
within the Community, the Additional Land will still have such rights of access and be
subject to such limitations as are contained in any other agreements with the owners of
the Additional Land. This Declaration is not intended as and should not be deemed to
constitute any lien, encumbrance, restriction, or limitation upon the Additional Land
unless and until it is added to the existing Community in accordance with the provisions
of this Section 2.5.
2.6 _Incidents of Ownership- Membership in the Association. Every Lot shall have
appurtenant to it one Membership in the Association, and a nonexclusive easement for
each Owner for use, enjoyment, ingress and egress over the Community Areas subject to
such restrictions and limitations as are contained in the Community Documents and
subject to other reasonable regulation by the Association.
2.7 Responsibility for Community Areas Damage. Each Owner shall be
personally liable to the Association for the cost of all repairs or replacement of any
portion of the Community Areas, the Lot, or the exterior elements of the Residence
resulting from the willful or negligent act of an Owner, Occupant, Lessees, tenants,
family, guests or invitees to the extent that such costs are not covered by insurance
maintained by the Association. The Association shall cause such repairs and
replacements to be made and the cost thereof may be levied as an individual charge
against such Owner enforceable in the same manner as the enforcement of the payment of
Assessments. The failure of the Association to continue any insurance in effect shall not
be a defense to any such Owner's personal liability.
2.8 Reservation of Right to Construct Residences and Improvements. Declarant
intends, without obligation, to sell, convey and transfer the Lots to Owners at the time
that such Lots are improved with Residences. In addition to the reservations of rights set
forth in this Declaration, Declarant reserves the sole and exclusive right, without
obligation, to construct and/or directly supervise the construction of all Residences and
Improvements to be erected on the Community Areas and the Lots which are a part of the
Community. An Owner of a Lot other than Declarant or a Declarant Affiliate shall not
have the right to independently construct a Residence or any other Improvement thereon,
or approve or supervise the construction of any Residence or Improvement within the
Community. Notwithstanding the foregoing intention to construct all of the Residences,
Declarant reserves the right to sell, convey, transfer, assign or otherwise dispose of any
Lot to a Declarant Affiliate or any other third party, without first constructing a
Residence thereon, and to authorize such new Owner the right to independently construct
8/30/07 DRAFT 9
a Residence or other Improvement thereon as Declarant shall determine in its sole and
exclusive discretion.
2.9 Declarant's Disclaimer of Representations. Nothing which may be represented
to a purchaser by real estate brokers or salespersons representing the Declarant or any
Declarant Affiliate shall be deemed to create any covenants or restrictions, implied or
express, with respect to the use of any Property subject to this Declaration.
2.10 Security. The Association may, but shall not be obligated to, maintain or support
certain activities within the Community designed to make the Community safer than it
otherwise might be. NEITHER THE ASSOCIATION, THE BOARD, OR THE
DECLARANT, (COLLECTIVELY, THE "PROJECT GOVERNING BODIES") SHALL
IN ANY WAY BE CONSIDERED INSURERS OR GUARANTORS OF SECURITY
WITHIN THE PROJECT, HOWEVER, AND THE PROJECT GOVERNING BODIES
SHALL NOT BE HELD LIABLE FOR ANY LOSS OR DAMAGE BY REASON OF
FAILURE TO PROVIDE ADEQUATE SECURITY OR INEFFECTIVENESS OF
SECURITY MEASURES UNDERTAKEN. ALL OWNERS, OCCUPANTS, TENANTS,
GUESTS AND INVITEES OF ANY OWNER OR OCCUPANT, AS APPUCABLE,
ACKNOWLEDGE THAT THE PROJECT GOVERNING BODIES DO NOT
REPRESENT OR WARRANT THAT ANY FIRE PROTECTION SYSTEM OR
BURGLAR ALARM SYSTEM DESIGNATED BY OR INSTALLED MAY NOT
BECOMPROMISED OR CIRCUMVENTED, THAT ANY FIRE PROTECTION OR
BURGLAR ALARM SYSTEMS WILL PREVENT WSS BY FIRE, SMOKE,
BURGLARY, THEFT, HOLD-UP, OR OTHERWISE NOR THAT FIRE
PROTECTION OR BURGLARY ALARM SYSTEMS WILL IN ALL CASES
PROVIDE THE DETECTION OR PROTECTION FOR WHICH THE SYSTEM IS
DESIGNED OR INTENDED. EACH OWNER, OCCUPANT, TENANT, GUEST OR
INVITEE OF AN OWNER OR OCCUPANT, AS APPUCABLE, ACKNOWLEDGES
AND UNDERSTANDS THAT THE PROJECT GOVERNING BODIES ARE NOT
INSURERS AND THAT EACH OWNER, OCCUPANT, TENANT, GUEST AND
INVITEE ASSUMES ALL RISKS FOR LOSS OR DAMAGE TO LOTS, TO
PERSONS, TO RESIDENCES, TO IMPROVEMENTS AND TO THE CONTENTS OF
RESIDENCES AND IMPROVEMENTS AND FURTHER ACKNOWLEDGES THAT
THE PROJECT GOVERNING BODIES HAVE NOT MADE REPRESENTATIONS
OR WARRANTIES NOR HAS ANY OWNER, OCCUPANT, TENANT, GUEST OR
INVITEE RELIED UPON ANYREPRESENTATIONS OR WARRANTIES,
EXPRESSED OR IMPLIED, IN CLUDING ANYWARRANTY OF
MERCHANTABIUTY OR FITNESS FOR ANY PARTICULAR PURPOSE,
RELATIVE TO ANY FIRE AND/OR BURGLAR ALARM SYSTEMS
RECOMMENDED OR INSTALLED OR ANY SECURITY MEASURES
UNDERTAKEN WITHIN THE PROJECT.
2.11 Readjustment of Lot Line Boundaries. Declarant hereby reserves for itself,
Declarant Affiliate and Declarant's successors and assigns, the right to effectuate minor
realignment and adjustment of Lot boundary lines for purposes of proper configuration
and final engineering of the Community; provided that any such realignment and
8/30/07 DRAFT 10
adjustment does not affect any existing Residence or Improvement (other than
landscaping) on the affected Lot. The authority to realign and adjust such Lot boundary
lines shall be exclusively reserved to the Declarant, Declarant Affiliate and Declarant's
successors or assigns, in their sole and reasonable discretion, subject to the other
provisions of this Section 2.11. All Owners specifically acknowledge and agree that they
shall cooperate with Declarant to effectuate such minor realignment and adjustment of
their respective Lot boundary lines by deed in form and content as requested by the
Declarant for the purposes of proper configuration and final engineering of the Lots in
relationship to the development of the Community. Further, all Owners acknowledge and
agree that no amendment to this Declaration or the Plat shall be required to effectuate any
Lot boundary line adjustments. so long as such adjustments are made pursuant to
Reference Idaho State Code. More particularly, boundary line adjustments between
adjacent Lots may be executed upon the approval of the appropriate Municipal Authority
and upon recordation of an appropriate deed if:
2.11.1 No new Residence or Improvement results from the Lot boundary
line adjustment and exchange of title;
2.11.2 The appropriate Municipal Authority and adjoining property
Owners consent to the Lot boundary line adjustment (such Owners' consent to be granted
as described above);
2.11.3 The adjustment does not result in violation of applicable Municipal
Authority zoning requirements; and
2.11.4 The appropriate Municipal Authority Records a notice of approval
in accordance with Reference Idaho State Code.
2.12 Development Plan. Notwithstanding any other provision of this Declaration
to the contrary, and subject to the approval of the appropriate Municipal Authority,
Declarant, without obtaining the consent of any other Owner or Person, shall have the
right to make changes or modifications to its plan of development with respect to any
Property owned by the Declarant in any way which the Declarant desires including, but
not limited to, changing all or any portion of the Property owned by the Declarant or
changing the nature or extent of the uses to which such Property may be devoted.
2.13 Community Area Improvements. Declarant, so long as Declarant or a
Declarant Affiliate owns a Lot within the Community, reserves the unilateral right to
construct Improvements on any area of the Community Areas and modify the location,
type and nature of Community Areas as it shall determine in its sole and exclusive
discretion, including, without limitation, the right to construct or create storage facilities,
walking trails, picnic areas or other Improvements thereon. Such construction and
relocation rights shall not be subject to the consent of the Owners, Board, Mortgagees or
any other person or entity. After the termination of Declarant's rights under Section 2.14
below, the Board shall have the right to exercise such construction and relocation powers
in connection with the Community Areas upon the vote or written assent of two-thirds
8/30/07 DRAFT 11
(2/3rds) of the members of the Board present at any annual or special meeting of the
Board pursuant to the approval procedures described in the Bylaws. Within forty-five
(45) days after Declarant has transferred and conveyed the last Lot that may be created
within the Community to an Owner other than Declarant or a Declarant Affiliate,
Declarant shall convey the Community Areas to the Association via a Recorded deed for
the permanent use and benefit of the Owners.
2.14 Declarant's Control. Notwithstanding anything herein to the contrary,
Declarant, or a managing agent or some other person or persons selected by Declarant,
may appoint and remove some or all of the members of the Board or some or all of the
officers of the Association or may exercise the powers and responsibilities otherwise
assigned by this Declaration or under Idaho law to the Association, its officers, or the
Board. However, the right of the Declarant contained in this Section 2.14 shall terminate
upon the first of the following to occur:
2.14.1 Recorded;
2.14.2 Declarant; or The expiration of four (4) years from the date that
this Declaration is after seventy-five percent (75%) of Lots have been conveyed
by
2.14.3 The date on which Declarant voluntarily relinquishes its control
rights as evidenced by a Recorded notice.
ARTICLE 3
LAND USES, PERMITTED USES AND RESTRICTIONS
3.1 Land Uses. Except as otherwise specifically provided in this Declaration, no
Residence shall be used for any purpose other than that of a residence for individuals
living together as a single housekeeping unit, and uses customarily incidental thereto,
provided, however, that no Residence may be used as a rooming house, group home,
commercial foster home, fraternity or sorority house, off -campus housing by unrelated
students, or any similar type of lodging, care or treatment facility. The foregoing
residential use restriction is subject; however, to any applicable current or future federal
or Idaho housing law that may now or in the future render such residential use restriction
unenforceable in whole or in part, in which event such residential use restriction shall
restrict use of the Community only to the extent permitted by law. Notwithstanding the
foregoing: (i) an Owner or Occupant maintaining a personal or professional library,
keeping personal business or professional records or accounts, conducting personal
business (provided that such use does not involve customers, employees, licensees or
invitees coming to the Residence), making professional telephone calls, or corresponding,
in or from a Residence, is engaging in a use expressly declared customarily incidental to
residential use and is not in violation of these restrictions.
3.2 An Restrictions on Rentals and Initial Sale of Residences.
8/30/07 DRAFT 12
3.2.1 The rental and initial sale of Residences by Declarant shall be
restricted such that, when all eighty (80) of the Residences have been rented or initially
sold by Declarant, at least sixty-four (64) of those Residences ("Qualifying Residences"),
the identity of which shall be determined exclusively by Declarant, shall have been rented
or initially sold by Declarant either: (i) to an individual who, at the time of such rental or
initial sale, was at least 55 years of age, or (ii) in the case of multiple purchasers of a
Residence, to purchasers at least one of whom was an individual at least 55 years of age
at the time of such rental or initial sale (collectively "Age 55 Criteria"). There shall be no
minimum or maximum number of Qualifying Residences that may be rented as opposed
to sold by Declarant; provided, however, that, if and when Declarant sells a Residence
that Declarant has been renting and whose inclusion was necessary to achieve a minimum
number of Qualifying Residences, Declarant may sell that Residence only to a purchaser
or purchasers meeting the Age 55 Criteria.
3.2.2 Following Declarant's conveyance of all Residences in the
Community, at least eighty percent (80%) of the occupied Residences within the
Community shall at all times, except as otherwise provided herein, be occupied by
at least one (1) person not less than fifty-five (55) years of age. Each Owner
hereby agrees and acknowledges that in the event he or she purchased a
Qualifying Residence, he or she shall be bound by the Age 55 Criteria and the
Owner's rental and sale of such Qualifying Residence shall be restricted by the
Age 55 Criteria. For the purposes of this Section 3.2, a Residence is "occupied"
when an Owner or Occupant has possession of the Residence and has the right to
actually use or control such Residence. In compliance with HOPA, the
Association, shall (i) publish and adhere to Age 55 Criteria policies and
procedures that demonstrate the intent to operate this Community as a community
for persons who are 55 years of age or older as such intent is set forth in this
Section 3.2; and (ii) shall establish policies for age verification of each Owner or
Occupant by reliable surveys and affidavits, which surveys and affidavits shall be
of the type that may be admissible in administrative and judicial proceedings for
the purposes of such verification, such as a driver's license, birth certificate,
passport, immigration card or military identification. The only exception to the
Age 55 Criteria as applied to the eighty percent (80%) of Residences occupied by
persons age 55 or older is for the non -age qualified surviving spouse of an age
qualified decedent Owner who had occupied the Qualified Residence, until such
time as the non -age qualified surviving spouse remarries at which time the
exception expires.
3.3 Additional Restrictions on Use. In addition to all of the covenants contained
herein, the use of the Residences and Community Areas are subject to the following (as
such restrictions on use may be amended, supplemented and/or expanded by the Board
via its promulgation of the Association Rules as further described in Section 2.4 above):
3.3.1 Insurance. Nothing shall be done or kept in any Residence, on any
Lot or in or on the Community Areas which will increase the rate of insurance
8/30/07 DRAFT 13
maintained by the Association or that will result in the cancellation of said
insurance. No Owner shall permit anything to be done or kept in his or her
Residence or Lot or in or on the Community Areas which is in violation of any
law or regulation of any governmental authority.
3.3.2 Visible Areas. Nothing shall be caused or permitted to be hung or
displayed on the outside or inside of windows of Residences or placed on the
outside walls of a Residence or otherwise outside of a Residence, or any part
thereof, except interior inoffensive drapes, curtains, or louvered blinds which,
from exterior observation, must be white, beige, gray, off-white, light earth tones
or light to medium natural wood colors, or as otherwise authorized by the Board.
No awning, canopy, shutter or television or citizens' band or other radio antenna
or transmitter, or any other device or ornament, shall be affixed to or placed upon
an exterior wall or roof or any part thereof of a Residence, or the exterior of any
door or window of a Residence, or in, on, or over a patio, porch or balcony of a
Residence, visible to the exterior, unless authorized by the Board.
Notwithstanding the foregoing, nothing in this Declaration shall be deemed to
prohibit the unobtrusive placement of reasonably small satellite discs on the roofs
of individual Residences by the Owner or Owners of those Residences, as such
unobtrusive placement may be determined by the Board in its sole and exclusive
discretion.
3.3.3 Offensive Activities. No noxious or offensive activity shall be
carried on in any Residence, on any Lot or in or on the Community Areas, nor
shall any be used in any way or for any purpose which may endanger the health of
or unreasonably disturb any Owner or lawful Occupant of other Residences.
3.3.4 Structural Integrity. Nothing shall be done in any Residence, on
any Lot or in, on, or to the Community Areas which will impair the structural
integrity of any Residence or structurally change the same or any part thereof
except as is otherwise provided in this Declaration.
3.3.5 Community Areas. The Community Areas shall be kept free and
clear of all rubbish, debris, and other unsightly materials. The Community Areas
shall be used in common by Owners and lawful Occupants and their agents,
servants, customers, invitees and licensees, in accordance with the purposes for
which they are intended, reasonably suited and capable, and as may be required
for the purposes of access, ingress to, egress from, use, occupancy, and enjoyment
of Residences. Unless expressly provided otherwise herein, no Community Areas
shall be used for any purpose other than the health, safety, welfare, convenience,
comfort, recreation or enjoyment of Owners and Occupants. There shall be no
obstruction of the Community Areas, nor shall anything be kept or stored on any
part of the Community Areas in violation of the rules adopted by the Board.
Nothing shall be altered on, constructed in, or removed from, the Community
Areas except upon the prior written consent of the Board.
8/30/07 DRAFT 14
3.3.6 Animals. Except as hereinafter provided, no animals, livestock, or
poultry of any kind shall be raised, bred, or kept in any Residence or on the
Community Areas. Notwithstanding the foregoing, household domestic pets, not
bred or maintained for commercial purposes, may be maintained in a Residence,
provided that: (i) no more than one pet may be maintained in any Residence,
except that, if a Owner, prior to the commencement of occupancy of a Residence,
requests the Board, in writing, for permission to maintain two pets in a Residence,
the Board, in its discretion, may, in writing, authorize two pets, provided the two
pets are either dogs of a miniature breed or cats who have or will have a combined
mature weight not in excess of twenty (20) pounds, the pets shall be house pets
only and not permitted in Community Areas, those pets are owned by the Owner
at the time of commencement of occupancy of a Residence, and the Owner shall
not be permitted to replace the first of those two pets who dies; (ii) the
maintaining of animals shall be subject to the Association Rules as the Board may
from time to time promulgate, including, without limitation, the right to prohibit
pets entirely, to place limitations on the size, number and type of such pets, and
the right to levy enforcement charges against persons who do not clean up after
their pets; and (iii) the right of a lawful Occupant to maintain an animal in a
Residence shall be subject to termination if the Board, in its full and complete
discretion, determines that maintenance of the animal constitutes a nuisance or
creates a detrimental effect on the Community or other Residences or Occupants.
3.3.7 No Admission Fee. Other than the right of the Association to
charge a reasonable fee for use of a clubhouse (if and when a clubhouse is built)
to reimburse the Association for the cost of clean up, maintenance, and/or repair
of damage required by such use, no admission fees, charges for use, leases or
other income -generating arrangement of any type shall be employed or entered
into with respect to any portion of the Community Areas. Nothing in this
subparagraph shall be construed to relieve Owners or Occupants from their
responsibility to repair any damage caused by them as may be required by other
provisions of this Declaration or in any Association Rules adopted by the Board.
3.3.8 Renting and Leasing. No Residence or part thereof shall be rented
or used for transient or hotel purposes, which is defined as: (i) rental under which
Occupants are provided customary hotel services such as room service for food
and beverages, maid service, the furnishing of laundry and linen, busboy service,
and similar services; or (ii) rental to roomers or boarders, that is, rental to one or
more persons of a portion of a Residence only. No lease may be of less than an
entire Residence. Any lease agreement shall be in writing, shall provide that the
lease shall be subject in all respects to the provisions of this Declaration, and to
the Association Rules promulgated from time to time by the Board, and shall
provide that the failure by the tenant to comply with the terms of the Community
Documents and Association Rules established by the Board shall be a default
under the lease. Any Owner who sells or leases a Residence within the
Community shall disclose in the advertisements, purchase or lease documents that
the Community is a 55 year age restricted community under HOPA. An Owner's
8/30/07 DRAFT 15
or the Owner's realtor's failure to disclose that this Community is intended to be
operated for persons age 55 and older shall not prevent the Association from
enforcing the age restriction policies against any Owner, Occupant and/or renter
for non-compliance. Prior to the commencement of the term of a lease, the Owner
shall notify the Board, in writing, of the name or names of the tenant or tenants
and the time during which the lease term shall be in effect. Any violation of this
Declaration or of the Association Rules by a tenant shall also constitute a
violation by the Owner, and the Board shall have the right to enforce this
Declaration against the Owner and such tenant.
3.3.9 Signs and Flags. Notwithstanding the Declarant's or a Declarant
Affiliate's exclusive right to display signs and flags in connection with its
marketing and sale of Lots or other advertisement of the Community as further
described in Section 4.4.1 below, no sign or flag of any kind shall be displayed to
the public view on the Community except: (a) on the Community Areas, signs
posted by the Association regarding and regulating the use of the Community
Areas; (b) on the interior side of the window of a Residence, one professionally
prepared sign not in excess of nine square feet in size, advertising the Residence
for sale or rent; (c) on the Community Areas and model Residences, signs
advertising the sale and/or rental of Residences by Declarant as further described
in this Declaration; and (d)All such signs in the Community related to "Qualifying
Residences" (as such term is defined in Section 3.2.1above), whether placed by an
Owner or by a realtor, shall prominently display that this is a "55 YEAR AGE
RESTRICTED COMMUNITY".
3.3.10 Vehicles. The Board may establish as apart of the Association
Rules certain rules and regulations restricting or prohibiting the parking of
automobiles, vans, buses, inoperable vehicles, trucks, trailers, boats, and
recreational vehicles on the Lots and Community Areas, or parts thereof, and may
enforce such regulations or restrictions by levying enforcement charges, having
such vehicles towed away, or taking such other lawful actions as it, in its sole
discretion, deems appropriate.
3.3.11 Discrimination Handicapped Accommodation. No action shall at
any time be taken by the Association, or the Board which in any manner would
discriminate against any Owner in favor of another. In addition, notwithstanding
any provision hereof, or any Association Rule, the Board shall make reasonable
accommodation if necessary to afford a handicapped person equal opportunity to
use and enjoy the Community as compared to any other Owner, provided that
nothing contained herein shall be construed to mean or imply that any such
accommodation be at the cost of the Association.
3.3.12 Architectural Control. No building, fence, wall, sign, or other
structure or improvement shall be commenced, erected, or maintained upon the
Property, or any part thereof, nor shall any exterior addition to or change or
alteration therein be made, until the plans and specifications showing the nature,
8/30/07 DRAFT 16
kind, shape, height, materials, color, and location of the same shall have been
submitted to and approved in writing by the Board, acting as the "Architectural
Review Committee" for the Community, or its designated representative or
representatives, in its or their sole and unfettered discretion. Nothing visible to the
exterior shall be permitted to be hung, placed, displayed or maintained on the
Residences, on the Lots or on or in Community Areas unless approved, in writing,
by the Board or its designated representative or representatives, in its or their sole
and unfettered discretion, or unless the same is authorized by existing Association
Rules adopted by the Board.
3.4 Required Approvals for Further Property Restrictions. The
property is subject to the following additional approvals:
3.4.1 No Lot, or portion thereof, shall be further subdivided, and no
portion less than all of any such Lot, or any easement or other interest therein,
shall be conveyed or transferred by any Owner without the prior written approval
of the Declarant, prior to its transfer of control of the Association pursuant to
Section 2.14 above, and thereafter, the Board. This provision shall not, in any way,
limit Declarant from subdividing or separating into Lots any property at any time
owned by Declarant, and is not intended to prohibit any Owner from renting his
or her Residence, subject to any Association Rules governing such rental
activities.
3.4.2 No site plan, subdivision plat, declaration or further covenants,
conditions, restrictions or easements, and no application for rezoning, variances or
use permits shall be Recorded, submitted to any Municipal Authority unless the
same has first been approved in writing by the Declarant, so long as it or a
Declarant Affiliate owns a Lot within the Community, and thereafter, the Board;
further, no changes or modifications shall be made in any such documents,
instruments or applications once the same have been approved by the Declarant or
the Board hereunder unless such changes or modifications have first been
approved by the Declarant or the Board in writing.
3.5 Lots and Improvements. Declarant shall not be restricted in the location or in
the number of Lots, Residences, Community Areas or other Improvements that may be
created on the Property, except as may be required by the Community Documents,
applicable zoning requirements, ordinances or regulations, and provided that when
completed, the Community shall not contain more than seventy (70) Lots and seventy
(70) Residences. The Lots and Residences to be located on the Property shall be subject
to the use restrictions contained in the Community Documents. No structures other than
Residences and Improvements approved by the Board will be erected on the Property;
provided, however, that Declarant reserves the right to create additional Community
Areas and Improvements on the Property without limitation. Declarant makes no
assurances as to location, size, type or number of Community Areas or other
improvements to be created on the Property.
8/30/07 DRAFT 17
3.6 Declarant's Exemption. No Board approval shall be required for any
construction, installation, addition, alteration, repair, change, replacement or other work
by, or on behalf of, the Declarant within the Community. Moreover, Declarant and all
Declarant Affiliates shall be specifically exempt from the use restrictions, architectural
design guidelines and other regulations applicable to the Community as further described
in this Declaration. So long as it or a Declarant Affiliate owns a Lot within the
Community, Declarant specifically reserves the sole and exclusive right to complete the
construction of all Residences and other Improvements within the Community, regardless
of whether or not Declarant has transferred control of the Association pursuant to Section
2.14 above.
ARTICLE 4
EASEMENTS
4.1 Owners' Easements of Enjo ment.
4.1.1 Subject to the rights and easements granted to the Declarant in
Section 4.4, each Owner and Occupant shall have a nonexclusive right and
easement of enjoyment in, to and over the Community Areas, which right and
easement shall be appurtenant to and shall pass with the title to each Lot, subject
to the provisions of the Community Documents including, without limitation, the
following: 4.1.1.1 Except as otherwise provided in this Declaration, no dedication,
transfer, mortgage or encumbrance of all or any portion of the Community Areas
shall be effective unless approved by Owners representing two-thirds (2/3) of the
votes of the Members. Notwithstanding the preceding sentence or any other
provision of this Declaration to the contrary, the Association shall have the right,
without the consent of the Owners or any other Person (except Declarant, whose
consent shall be required so long as Declarant or a Declarant Affiliate owns any
part of the Property), to dedicate portions of the Community Areas to the public,
or grant easements over, under or through portions of the Community Areas to the
public, to any Municipal Authority, or to any public, quasi -public or private utility
company, for use as right-of-way, for utilities, for public landscape purposes and
the like, as may be required or requested by any Municipal Authority or other
entity having jurisdiction, or by a public, quasi -public or private utility company,
in connection with or at the time of the development of portions of the Property.
4.1.1.2 The Association shall have the right to regulate the use of
the Community Areas through the Association Rules and to prohibit access to
such portions of the Community Areas, such as landscaped right-of-ways, not
intended for use by the Owners, Lessees or other Occupants.
4.1.1.3 The Declarant and the Association shall each have the
right to grant easements or licenses to Persons for the construction of
Improvements on the Community Areas, and the Declarant and the Association
shall each have the right to grant ingress and egress easements over the
Community Areas in the Community to Persons who are not Members.
8/30/07 DRAFT 18
4.1.2 Occupants Use of the Community Areas. If a Residence is leased
or rented by its Owner, the Occupants of such Residence shall have the right to
use the Community Areas during the term of the lease, and the Owner of such
Residence shall have no right to use the Community Areas until the termination or
expiration of such lease.
4.2 Utility Easement. There is hereby created an easement upon, across, over and
under the Community Areas, certain portions of the Lots and other property as may be
depicted on the Plat for reasonable ingress, egress, installation, replacement, repair or
maintenance of all utilities, including, but not limited to, gas, water, sewer, telephone,
cable television, telecommunications and electricity. By virtue of this easement, it shall
be expressly permissible for the providing utility company or Municipal Authority to
install and maintain the necessary equipment on the Community Areas, certain portions
of the Lots and other property as may be depicted on the Plat. However, except within the
public utility easements which may be depicted on the Plat, no sewers, electrical lines,
water lines or other utility or service lines may be installed or located on the Community
Areas, Lots, and other property except as initially designed, approved and/or constructed
by the Declarant or as approved by the Board (and, in the case of a Lot, by the Owner of
such Lot). 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 Community Areas, the Association shall have the power and authority,
without the need for any consent by the Owners or any other Person, to grant the more
specific easement on such terms and conditions as the Board deems appropriate. All
utility lines shall be maintained, repaired and replaced in accordance with Sections 7.1.3
and 7.6 below.
4.3 Easements for Community Ingress and Egress; Easements for Emergency
Vehicle Access. It is intended that all roadways and parking areas within the Community
not located on a Lot shall be constructed and maintained as private Improvements to be
owned by the Association as Community Area for the exclusive use and benefit of the
Owners and Occupants as Declarant shall determine in its sole and exclusive discretion
(collectively referenced the 'Private Roadway" To the extent that certain Private
Roadway improvements are not dedicated to a Municipal Authority, then the Association
shall maintain, repair and replace such Private Roadway as a portion of the Community
Areas as set forth in Section 7.1. The Private Roadway and Community Areas are subject
to the following easements: There are also hereby created nonexclusive easements for
ingress and egress for pedestrian traffic over, through and across trails, sidewalks, paths,
walks and lanes that from time to time may exist upon the Community Areas. Such
easements shall run in favor of and be for the exclusive use and benefit of the Owners
and Occupants and their guests, families, tenants and invitees. The Board shall have the
right to relocate and/or reconfigure any and all such Community access easements from
time to time as it sees fit without the consent of any Owners or Mortgagees.
8/30/07 DRAFT 19
4.4 Declarant's Use and Easements. So long as Declarant or a Declarant Affiliate
owns a Lot within the Community, Declarant shall have and hereby reserves the
following rights and easements for the benefit of itself and all Declarant Affiliates:
4.4.1 Declarant shall have the exclusive right and an easement to
maintain sales or leasing offices, construction trailers, management offices and
models throughout the Community and to maintain advertising, marketing and/or
for sale signs, banners and flags on the Property of any size, type or quality,
including without limitation on the Community Areas and in the clubhouse, with
respect to the sales of Lots, Residences or other property in the Community or
within any of the Additional Land. Declarant reserves the right to place models,
management offices, construction trailers, sales and leasing offices and
advertising, marketing and/or for sale signs, banners and flags on any Lots or
other property owned by Declarant or a Declarant Affiliate and on any portion of
the Community, including without limitation on the Community Areas, in such
number, of such size and in such locations as Declarant deems appropriate. Any
Improvements constructed as models shall cease to be used as models as
Declarant shall determine in its sole and exclusive discretion.
4.4.2 Declarant shall have the right to restrict the use of the parking
spaces on the Community Areas. Such right shall include reserving parking
spaces for use by prospective purchasers, Declarant's employees and others
engaged in sales, leasing, maintenance, construction or management activities.
4.4.3 Declarant shall have the right and an easement on and over the
Community Areas and the Lots to construct all Improvements Declarant may
deem necessary and to use the Community Areas and any Lots and other property
owned by the Declarant for construction or renovation related purposes including
the storage of tools, furniture, machinery, equipment, building materials,
appliances, supplies and fixtures, and the performance of work respecting the
Community.
4.4.4 Declarant shall have the right and an easement upon, over and
through the Community Areas and the Lots as may be reasonably necessary for
the purpose of exercising the rights granted to or reserved by the Declarant in this
Declaration.
4.5 Easement in Favor of Association. The Lots are hereby made subject to the
following easements in favor of the Association and its directors, officers, agents,
employees and independent contractors:
4.5.1 For inspection during reasonable hours of the Lots in order to
verify the performance by Owners or other Persons of all items of maintenance
and repair for which they are responsible;
8/30/07 DRAFT 20
4.5.2 For inspection, maintenance, repair and replacement of portions of
the Community Areas accessible only from such Lot or Lots;
4.5.3 For correction of emergency conditions on one or more Lots or on
portions of the Community Areas accessible only from such Lot or Lots;
4.5.4 For the purpose of enabling the Association, the Board, or any other
committees appointed by the Board to exercise and discharge during reasonable
hours their respective rights, powers and duties under the Community Documents;
4.5.5 For inspection during reasonable hours of the Lots in order to
verify that the Owners and Occupants, and their guests, tenants and invitees, are
complying with the provisions of the Community Documents;
4.5.6 For inspection, maintenance, repair and replacement of the
landscaped areas, concrete improvements, fences, patios and driveways located on
the Lots which the Association is obligated to repair, replace and maintain
pursuant to the provisions of this Declaration and the other Community
Documents; and
4.5.7 For inspection, maintenance, repair and replacement of the
exterior elements of the Residences located on the Lots which the Association is
obligated to repair, replace and maintain pursuant to the provisions of this
Declaration and the other Community Documents.
4.6 _Easement for Pagy Wall. Each Owner, for each Lot that he, she or it owns,
hereby acknowledges and agrees that a Party Wall may presently encroach upon or
overlap the Owner's Lot. To the extent the Party Wall does encroach upon or overlap a
Lot, the Owner of said Lot hereby grants to the Adjoining Owner of the other Lot that
shares a Party Wall an easement over and upon its Lot for the purpose of maintaining the
Party Wall and carrying out the other obligations set forth in this Declaration. 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
the performance of the Association's obligations and each Owner's respective obligations
under this Declaration.
ARTICLES
THE ASSOCIATION; ORGANIZATION; ASSOCIATION MEMBERSHIP AND
VOTING RIGHTS
8/30/07 DRAFT 21
5.1 Formation of Association. The Association shall be a nonprofit Utah
corporation charged with the duties and vested with the powers prescribed by law and set
forth in the Community Documents.
5.2 Governing Board and Officers. The affairs of the Association shall be
conducted by the Board and such officers as the Board may elect or appoint in
accordance with the Articles and the Bylaws. Unless the Community Documents
specifically require the vote or written consent of the Members, approvals or actions to be
given or taken by the Association shall be valid if given or taken by the Board. The Board
may appoint various committees at its discretion. The Board may also appoint or engage
a manager to be responsible for the day -today operation of the Association and the
Community Areas. The Board shall determine the compensation to be paid to any such
manager. The initial number of directors on the Board shall be three (3) and, until the
rights of Declarant under Section 2. 14 are terminated, all directors, unless Declarant
otherwise agrees in writing, will be appointed by Declarant. If the Declarant relinquishes
its right to appoint the directors of the Board or its right to do so is otherwise terminated
in accordance with the provisions of Section 2.14, the Board at the time of such
relinquishment or termination shall continue in office until the next special or annual
meeting of Members who shall then have authority to elect a new Board in accordance
with the Association's Bylaws. Moreover, the terms of the directors of the Board, the
filling of Board vacancies and similar operational matters of the Board shall be conducted
in accordance with the Association's Bylaws.
5.3 Manner of Exercising Votes for Directors. At any meeting, the votes
exercised by the Owner or Owners of a Lot shall be the number of votes determined by
multiplying the number of Lots times the number of seats to be filled. Said votes may be
voted in favor of as many candidates as there are director seats to be filled.
5.4 Association Rules. It is currently contemplated that the Board will enact and
promulgate the Association Rules which shall govern the Owners and the Community.
The Board may, from time to time, and subject to the provisions of this Declaration,
amend and repeal the Association Rules or adopt new Association Rules which generally
pertain to: (a) the management, operation and use of the Community Areas; (b) traffic
and parking restrictions on the Lots including areas reserved for the exclusive use and
occupancy of an Owner and speed limits on the private street within the Community; (c)
minimum standards for any maintenance of Community Areas, Lots, Residences and
Improvements within the Community; or (d) any other subject within the jurisdiction of
the Association. In the event of any conflict or inconsistency between the provisions of
this Declaration and the Association Rules, the provisions of this Declaration shall
prevail.
5.5 Personal Liability. No member of the Board, or any other committee of the
Association, no officer of the Association and no manager or other employee of the
Association shall be personally liable to any Member, or to any other Person including
the Association, for any damage, loss or prejudice suffered or claimed on account of any
act, omission, error or negligence of the Association, the Board or any member thereof,
8/30/07 DRAFT 22
the manager, any representative or employee of the Association, any officer of the
Association or any member of any other committee of the Association; provided,
however, the limitations set forth in this Section 5.5 shall not apply to any person who
has engaged in intentional misconduct.
5.6 Borrowing Power. The Association may borrow money in accordance with
the Bylaws in such amounts, at such rates, upon such terms and security, and for such
periods of time as is necessary or appropriate as determined by the Board without a vote
of the Members. The Association may secure such loans by pledging any of its properties
including future Assessments.
5.7 Express and Im lied Rights. The Association may exercise any expressed or
implied right or privilege given to the Association expressly by the Community
Documents or any other right or privilege reasonably necessary to effectuate any such
right or privilege. In particular, subject to the rights of Declarant described in this
Declaration, the business, property and affairs of the Association shall be managed,
operated, and maintained by the Board and by any manager it may designate and the
Board, acting for and on behalf of the Association, shall have, and is hereby granted, the
following specific authority and powers:
5.7.1 Without the vote or consent of the Owners or any other persons,
the Board may grant or create, to the extent permitted by law and on such
conditions as it deems advisable, utility and similar easements, over, under, across
and through the Community Areas;
5.7.2 The Board may execute and record, on behalf of all Owners, any
amendment to the Declaration or Plat which has been approved by any vote or
consent necessary to authorize such amendment;
5.7.3 The Board shall have the authority to enforce this Declaration on
behalf of the Association and its Members;
5.7.4 The Board shall have authority to enter into contracts which in any
way concern the Community on behalf of the Association, so long as any vote or
consent of the Owners which may be necessitated by the subject matter of the
agreement has been obtained;
5.7.5 The Board shall have authority to purchase, otherwise acquire, and
accept title to, in the name of the Association, any personal property and/or
interest in real property, and to conveyor transfer any interest in real property, so
long as such action has been authorized by any vote or consent of the Owners
which may be necessary under the circumstances;
5.7.6 The Board may add any interest in real property obtained pursuant
to subparagraph 5.7.5 immediately above to the Community, so long as such
action has been authorized by any necessary vote or consent of the Owners;
8/30/07 DRAFT 23
5.7.7 The Board may adopt Bylaws of the Association;
5.7.8 The Board may promulgate, from time to time, such reasonable
rules, regulations, and procedures as may be necessary or desirable to aid in
carrying out the Association's functions and/or to govern the reasonable use,
maintenance, and operation of the Community, including without limitation those
certain rules, regulations and age verification polices described in Section 3.2
above;
5.7.9 The Board shall have authority to maintain, repair, replace, restore,
operate, and manage the Community Areas, the exterior elements of Residences,
landscaped areas, concrete improvements, fences, patios and driveways located on
a Lot, and all property that may be acquired by the Association, to appoint a
Manager in regard to such activities, and to establish an adequate reserve fund for
repair, replacement, and restoration thereof;
5.7.10 The Board shall have authority to secure fidelity bond coverage
and such other policy or policies of insurance as the Board deems necessary or
desirable in protecting the interests of the Association and the Owners; and
5.7.11 The Board may perform any other acts and may enter into any
other transactions which are permitted by the Bylaws, which may be deemed
reasonably necessary by the Board for the Board to perform its function, and
which Utah law shall permit.
5.8 Membership in the Association. Every Owner, including Declarant, shall be a
member of the Association, and the Declarant shall be a member of the Association so
long as it or a Declarant Affiliate owns any part of the Community (unless and until the
Declarant expressly relinquishes in writing its status as a Member).
5.9 Votes in the Association. Each Owner of a Lot, including Declarant, shall be
a member of the Association and is allotted one (1) vote per Lot owned. Each
membership in the Association shall be held jointly by all Owners of that Lot.
5.10 Voting Pro_. A change in the ownership of a Lot shall be effective for
voting purposes from the time the deed or other instrument effecting such change is
recorded, or, in connection with Owners who are vendees, upon the execution of the
installment purchase contract. Thereafter, the new Owner shall give the Board written
notice of such change of ownership and provided satisfactory evidence thereof. The vote
for each Lot must be cast as a unit, and fractional votes shall not be allowed. In the event
that a Lot is owned by more than one Person and such Owners are unable to agree among
themselves as to how their vote or votes shall be cast, they shall lose their right to vote on
the matter in question. If any Member casts a vote representing a certain Lot, it will
thereafter be conclusively presumed for all purposes that he, she or it was acting with the
authority and consent of all other Owners of the same Lot unless objection thereto is
8/30/07 DRAFT 24
made at the time the vote is cast. In the event more than one Owner attempts to cast the
vote for a particular Lot, the vote for that Lot shall be deemed void and shall not be
counted.
5.11 Transfer of Membership. The voting rights and Assessment obligations of any
Member other than the Declarant shall not be assigned, transferred, pledged, conveyed or
alienated in any way except upon transfer of ownership of an Owner's Lot, and then only
to the transferee of ownership of the Lot. A transfer of ownership of a Lot may be
effected by deed, intestate succession, testamentary disposition, foreclosure or such other
legal process as is now in effect or as may hereafter be established under or pursuant to
applicable law. Any attempt to make a prohibited transfer shall be void. Any transfer of
ownership of a Lot shall operate to transfer the Membership appurtenant to said Lot to
the new Owner thereof. In the event the Owner of any Lot should fail or refuse to transfer
the Membership registered in his or her name to the purchaser of such Lot upon transfer
of fee title thereto, the Board shall have the right, but not the obligation, to record the
transfer upon the books of the Association. All transfers shall be subject to the transfer
fee described in Section 6.14.
ARTICLE 6
COVENANT FOR ASSESSMENTS AND CREATION OF LIEN
6.1 Creation of Lien and Personal Obligation of Assessments. Declarant, for each
Lot, hereby covenants and agrees, and each Owner, other than the Declarant, by
becoming the Owner of a Lot, is deemed to covenant and agree, to pay Assessments to
the Association in accordance with this Declaration. All Assessments shall be established
and collected as provided in this Declaration. The Assessments, together with interest,
late charges and all costs, including but not limited to reasonable attorneys fees, incurred
by the Association in collecting or attempting to collect delinquent Assessments, whether
or not suit is filed, shall be a charge on the Lot and shall be a continuing lien upon the Lot
against which each such Assessment is made. Each Assessment, together with interest
and all costs, including but not limited to reasonable attorneys fees, incurred by the
Association in collecting or attempting to collect delinquent Assessments, whether or not
suit is filed, shall also be the personal obligation of each Person who was an Owner of the
Lot at the time when the Assessment became due. The personal obligation for delinquent
Assessments shall not pass to the successors in title of the Owner unless expressly
assumed by them (unless title is transferred to one or more such successors for purposes
of avoiding payment of any Assessment or is transferred to a Person controlling,
controlled by or under common control with the Owner transferring title), but the lien
created by this Declaration against the applicable Lot shall continue to secure payment of
such delinquent Assessment (including, but not limited to, any and all interests and late
charges) until the same are fully paid.
6.2 Annual Assessment. In order to provide for the operation and management of
the Association and to provide funds for the Association to pay all Community Expenses
and to perform its duties and obligations under the Community Documents, including,
without limitation, the establishment of reasonable reserves for replacements,
8/30/07 DRAFT 25
maintenance and contingencies, the Board, for each fiscal year shall assess an Annual
Assessment against each Lot which shall be billed monthly to each Owner. Annual
Assessments shall be computed and assessed against all Lots in the Community as
follows:
6.2.1 Community Expense. Annual Assessments shall be based upon
advance estimates of the Association's cash requirements to provide for payment
of all estimated expenses arising out of or connected with the maintenance and
operation of the Community Areas, exterior elements of the Residences,
landscaped areas, concrete improvements, fences, patios and driveways located on
a Lot, and furnishing common utility services and other common items to the
Residences. Such estimated expenses may include, without limitation, the
following: landscaping and pressurized irrigation costs, exterior maintenance of
Residences, management expenses; real property taxes on the Community Areas;
premiums for all insurance that the Association is required or permitted to
maintain hereunder; repairs and maintenance; wages of Association employees,
including fees for a manager; utility charges, including charges for utility services
to the Community Areas; any deficit remaining from a previous period; creation
of an adequate contingency reserve, major maintenance reserve and/or sinking
fund; creation of an adequate reserve fund for maintenance repairs, and
replacement of those Community Areas that must be replaced on a periodic basis;
and any other expenses and liabilities which may be incurred by the Association
for the benefit of the Owners under or by reason of this Declaration. Such shall
constitute the Community Expenses, and all funds received from Assessments
under this Section 6.2.1 shall be part of the Community Expense fund. Two
separate and distinct accounts shall be created and maintained hereunder, one for
operating expenses and one for capital expenses which together shall constitute
the Community Expense fund.
6.2.2 Apportionment. Community Expenses shall be equally
apportioned among and assessed to all Members. Each Owner, for each Lot that
he, she or it owns, shall be liable for an equal share of the Community Expenses.
Declarant and each Declarant Affiliate shall be liable for the amount of any
Assessments against Lots they own, subject to the subsidy provisions described in
Section 6.7 below.
6.2.3 Annual Budget. Annual Assessments shall be determined on the
basis of a fiscal year beginning January 1 and ending December 31 next following,
provided the first fiscal year shall begin on the date of this Declaration, and, on or
before December 1 of each year thereafter fiscal year. The Board shall prepare
and furnish to each Owner, or cause to be prepared and furnished to each Owner,
an operating budget for the upcoming fiscal year. The budget shall itemize the
estimated Community Expenses for such fiscal year, anticipated receipts (if any)
and any deficit or surplus from the prior operating fiscal year. The budget shall
serve as the supporting document for the Annual Assessment for the upcoming
8/30/07 DRAFT 26
fiscal year and as the major guideline under which the Community shall be
operated during such fiscal year.
6.2.4 Notice and Payment. The Board shall give notice of the Annual
Assessment to each Owner at least ten (10) days prior to the beginning of each
fiscal year, but the failure to give prior notice shall not affect the validity of the
Annual Assessment established by the Board nor relieve any Owner from its
obligation to pay the Annual Assessment. If the Board determines during any
Assessment Period that the funds budgeted for that fiscal year are, or will become,
inadequate to meet all Community Expenses for any reason, including, without
limitation, nonpayment of Assessments by Members, it may increase the Annual
Assessment for that fiscal year and the revised Annual Assessment shall
commence on the date designated by the Board.
6.2.5 Effective Date of Assessments. Any Assessment created pursuant
hereto shall be effective, provided it is created as provided herein, if written
notice of the amount thereof is sent by the Board to the Owner subject thereto at
least ten (10) days prior to the due date thereof as described in Section 6.2.4
above, or, if it is to be paid in installments, the due date of the first installment
thereof. Written notice mailed or delivered to an Owner's Residence shall
constitute notice to that Owner, unless the Owner has delivered written notice to
the Board of a different address for such notices, in which event the mailing of the
same to that last designated address shall constitute notice to that Owner.
6.3 Special Assessments. The Association may levy against each Lot, in any
fiscal year, a Special Assessment for the purpose of defraying, in whole or in part, the
cost of any construction, reconstruction, repair or replacement of Improvements upon the
Community Areas, including fixtures and personal property related thereto, exterior
elements of the Residences, and landscaped areas, concrete improvements, fences, patios
and driveways located on a Lot; provided, however, that any Special Assessment shall
have the assent of two-thirds (2/3rds) of the votes entitled to be cast by the Members who
are voting in person or by proxy at a meeting duly called for such purpose, if the cost of
such new improvements would exceed five percent (5%) of that budget for the fiscal year.
6.4 Rules Regarding Billing and Collection Procedures. Annual Assessments
shall be collected on a monthly basis or such other basis as may be selected by the Board.
Special Assessments may be collected as specified by the Board. The Board shall have
the right to adopt Association Rules setting forth procedures for the purpose of making
Assessments and for the billing and collection of the Assessments provided that the
procedures are not inconsistent with the provisions of this Declaration. The failure of the
Association to send a bill to a Member shall not relieve any Member of his, her or its
liability for any Assessment or charge under this Declaration. However, no Assessment
Lien shall be foreclosed or otherwise enforced until the Member has been given not less
than thirty (30) days written notice prior to such foreclosure or enforcement that the
Assessment or any installment thereof is or will be due and of the amount owing. Such
notice may be given at any time prior to or after delinquency of such payment. The
8/30/07 DRAFT 27
Association shall be under no duty to refund any payments received by it even though the
ownership of a Lot changes during a fiscal year; successor Owners of Lots shall be given
credit for prepayments, on a prorated basis, made by prior Owners.
6.5 Effect of Nonpayment of Assessments; Remedies of the Association.
6.5.1 Any Assessment, or any installment of an Assessment, not paid
within ten (10) days after the Assessment, or the installment of the Assessment,
first became due shall bear interest from the due date at the rate established from
time to time by the Board. In addition, the Board may establish a late fee to be
charged to any Owner who has not paid any Assessment, or any installment of an
Assessment, within ten (10) days after such payment was due.
6.5.2 If any installment of an Assessment assessed by the Board is not
paid within ten (10) days after the same is due, the entire unpaid balance of the
Assessment shall immediately become due and payable, without demand or notice,
unless the Board, in its sole discretion, determines not to accelerate the
installments.
6.5.3 The Association shall have a lien on each Lot for all Assessments
levied against the Lot and for all other fees and charges payable to the Association
by the Owner of the Lot pursuant to this Declaration. Recording of this
Declaration constitutes record notice and perfection of the Assessment Lien. The
Board may, at its option, Record a notice of lien setting forth the name of the
delinquent Owner as shown in the records of the Association, the legal description
of the Lot against which the notice of lien is Recorded and the amount claimed to
be past due as of the date of the Recording of the notice, including interest, lien
recording fees and reasonable attorneys' fees.
6.5.4 The Assessment Lien shall have priority over all liens or claims
except for (a) tax liens for real property taxes; (b) assessments in favor of any
Municipal Authority or assessment district; and (c) the lien of any First Mortgage
as provided in this Section 6.5.4. The lien of the assessments and charges
provided for herein shall be subject and subordinate to the lien of any duly
executed First Mortgage on a Lot recorded prior to the date on which such lien of
the Association is recorded and any holder of such First Mortgage which comes
into possession of a Lot pursuant to the remedies provided in the First Mortgage,
foreclosure of the First Mortgage, or deed or assignment in lieu of foreclosure,
and any purchaser at a foreclosure sale, shall take the Lot free of any claims for
unpaid installments of assessments and charges against the Lot which (i) are so
subordinate to such First Mortgage and (ii) became due and payable prior, in the
case of foreclosure, to the date of the sale, and, in all other cases, to the date legal
title vested in the successor Owner by virtue of such process. The foregoing will
not relieve any successor Owner from the obligation for Assessments accruing
thereafter.
8/30/07 DRAFT 28
6.5.5 The Board shall not be obligated to release any Recorded notice of
lien until all delinquent Assessments, interest, lien fees, reasonable attorneys' fees,
court costs, collection costs and all other sums payable to the Association by the
Owner of the Lot have been paid in full.
6.5.6 The Board shall have the right, at its option, to enforce collection
of any delinquent Assessments together with interest, lien fees, reasonable
attorneys fees and any other sums due to the Association in any manner allowed
by law, including but not limited to taking either or all of the following actions,
concurrently or separately (and by exercising either of the remedies hereinafter set
forth, the Board does not prejudice or waive its right to exercise the other
remedy): (a) bringing an action at law against the Owner personally obligated to
pay the delinquent Assessments and such action may be brought without waiving
the Assessment Lien securing the delinquent Assessments; or (b) enforce the
Assessment Lien against the applicable Lot by sale or foreclosure conducted in
accordance with the then prevailing Utah law relating to the foreclosure of realty
mortgages or deeds of trust (including the right to recover any deficiency), the
foreclosure rights and methods described in the Community Association Act,
Chapter 57, Title 8a, Utah Code Ann., the method recognized under Utah law for
the enforcement of a mechanic's lien which has been established in accordance
with Chapter 1, Title 38, Utah Code Ann., as amended from time to time, or any
other manner permitted by law, and the Lot may be redeemed after foreclosure
sale if provided by law. In order to facilitate the foreclosure of any such
Assessment Lien in the manner provided at law for the foreclosure of deeds of
trust, the Board may designate a trustee with full power of sale, to foreclose any
such Assessment Liens as directed by the Board. Such trustee, and any successors,
shall not have any other right, title or interest in the Community beyond those
rights and interests necessary and appropriate to foreclose any Assessment Liens
against Lots arising pursuant hereto. In any such foreclosure, the Owner of the
Lot being foreclosed shall be required to pay the costs and expenses of such
proceeding (including reasonable attorneys' fees), and such costs and expenses
shall be secured by the Assessment Lien being foreclosed. The Association shall
have the power to bid at any foreclosure sale and to purchase, acquire, hold, lease,
mortgage and convey any and all Lots purchased at such sale.
6.5.7 If an Owner fails or refuses to pay any Assessment when due, the
Board shall have the right, after giving notice and an opportunity to be heard in
accordance with the Community Association Act, Chapter 57, Title 8a, Utah Code
Ann., to terminate an Owner's right (a) to receive utility services paid as a
Community Expense and (b) of access and use of the recreational facilities
constituting a portion of the Community Areas.
6.6 Evidence of payment of Assessments. Upon receipt of a written request by a
Member or any other Person, the Association, within a reasonable period of time
thereafter, shall issue to such Member or other Person a written certificate stating: (a) that
all Assessments, interest and other fees and charges have been paid with respect to any
8/30/07 DRAFT 29
specified Lot as of the date of such certificate; or (b) if all Assessments have not been
paid, the amount of such Assessments, interest, fees and charges due and payable as of
such date. The Association may make a reasonable charge for the issuance of such
certificates, which charges must be paid at the time the request for any such certificate is
made. Any such certificate, when duly issued as herein provided, shall be conclusive and
binding with respect to any matters therein stated as against any bona fide purchaser of,
or lender on, the Lot in question.
6.7 Declarant and Declarant Affiliate Subsidy. Notwithstanding any other
provision of this Declaration to the contrary, prior to its transfer of control of the
Association pursuant to Section 2.14 above, Declarant reserves for itself and all Declarant
Affiliates (collectively referenced as the "Subsidizing Party"), in its sole and exclusive
discretion, the right to subsidize the Association (rather than paying a full assessment
share for each Lot it owns) for the amount by which (i) the actual cost and expense of
operating and administering the Association and maintaining reasonable reserves for
maintenance, replacement and repairs and for contingencies, all as provided in this
Declaration, exceeds (ii) the total amount of Assessments levied against and collected
from Owners other than the Subsidizing Party. The subsidy required of the Subsidizing
Party under this Section may be in the form of cash or in the form of "in -kind"
contributions of goods or services, or in any combination of the foregoing, provided that
"in -kind" contributions of goods or services must directly reduce the Association's costs
and expenses for which an Assessment is being levied. The Subsidizing Party shall make
payments or contributions in respect to its subsidy obligations under this Section at such
time as the Board may reasonably request from time to time as necessary to ensure that
there are sufficient funds available for payment of Association costs and expenses and
accumulation of adequate reserves (but in any event not more often than monthly). At the
end of each fiscal year, either: (i) the Subsidizing Party shall pay or contribute to the
Association such additional funds, goods or services (or any combination thereof) as may
be necessary, when added to all other funds, goods and services paid or contributed by
the Subsidizing Party during such fiscal year, to satisfy in full the Subsidizing Party's
subsidy obligations under this Section for such fiscal year; or (ii) the Association shall
pay to the Subsidizing Party or credit against the Subsidizing Party's subsidy obligation
for the immediately following fiscal year, as the Subsidizing Party may elect, the amount,
if any, by which the total of all payments or contributions paid or made by the
Subsidizing Party during such fiscal year exceeded the total subsidy obligation of the
Subsidizing Party for such fiscal year under this Section. Within thirty (30) days of the
end of each fiscal year, the Board shall make an accounting of the Subsidizing Party's
subsidy obligations for that period, what amounts have been paid by the Subsidizing
Party (in cash, goods or services) with respect to such obligations, and what amounts are
due. A copy of the accounting shall be made available for review by Members upon
request. Notwithstanding that the amount of any Assessment against each Lot shall be
fixed at a uniform rate per Membership, subsequent to Declarant's transfer of control of
the Association pursuant to Section 2.14 above, the Subsidizing Party shall pay twenty-
five percent (25%) of the Annual Assessment attributable to each Lot which it owns until
completion and sale of the Residence on such Lot to an unrelated third -party Owner.
Subsequent to the Subsidizing Party's sale, conveyance and/or transfer of a Lot to a third-
8/30/07 DRAFT 30
party Owner, such Owner shall pay the full Assessment attributable to such Lot for that
remaining portion of the year during which he, she or it owes.
6.8 Encumbrances. Any encumbrancer holding a lien on a Residence may pay
any amounts secured by the Assessment Lien created by this Article 6, and upon such
payment such encumbrancer shall be subrogated to all rights of the Association with
respect to such lien, including priority.
6.9 Effect of Conveyance. In any voluntary conveyance, except to a First
Mortgagee in lieu of foreclosure of the First Mortgage, the grantee of a Residence shall
be jointly and severally liable with the grantor for all unpaid Assessments against the
Residence for his share of the Community Expenses up to the time of the grant or
conveyance, without prejudice to the grantee's rights to recover from the grantor the
amounts paid by the grantee. However, any such grantee shall be entitled to a statement
from the Board setting forth the amounts of the unpaid Assessments against the grantor,
and such grantee shall not be liable for, nor shall the Lot conveyed be subject to a lien for,
any unpaid Assessments against the grantor in excess of the amount set forth.
6.10 Tenant Recovery. If an Owner shall at any time let or sublet his Residence
and default for a period of one month or more in the payment of any Assessments, the
Association may, at its option, so long as such default shall continue, demand and receive
from such tenant or subtenant or property manager the rent due or becoming due under
such tenancy. The payment of such sum shall, to the extent of such payment, discharge
such tenant or subtenant's or property manager's rental obligation to the Owner and shall,
to the extent of such payment, discharge said Owner's obligation for unpaid
Assessment(s) and costs to the Association.
6.11 Statement of Account. Upon payment of a reasonable fee and upon written
request of any Owner or any lien holder, prospective lien holder, or prospective purchaser
of a Residence, the Board shall issue, within twenty (20) days following such request, a
written statement setting forth: (i) the amount of the unpaid Assessments, if any, with
respect to such Residence; (ii) the amount of the current yearly Annual Assessment and
the date that such Assessment becomes or became due, and (iii) any credit for advanced
payments or prepaid items, including, but not limited to, an Owner's share of prepaid
insurance premiums. Such statement shall be conclusive upon the Association in favor of
persons who rely thereon in good faith. Unless such request for a statement of account
shall be complied with within twenty (20) days, all unpaid Assessments which became
due prior to the date of making such request shall be subordinate to the lien of a
Mortgage which acquired its interest subsequent to requesting such statement. Where a
prospective purchaser makes such request, both the lien for such unpaid Assessments and
the personal obligation of the purchaser shall be released automatically if (i) the
statement is not furnished within such twenty (20) day period and within ten (10) days
after an additional written request is made by such purchaser and (ii) the purchaser
subsequently acquires the Residence.
8/30/07 DRAFT 31
6.12 Purposes for Which Association's Funds May be Used. The Association shall
apply all funds and property collected and received by it (including the Assessments, fees,
loan proceeds, surplus funds and all funds and property received by it from any other
source) for the common good and benefit of the Community and the Owners and
Occupants by devoting aid funds and property, among other things, to the acquisition,
construction, alteration, maintenance, provision and operation, by any manner or method
whatsoever, of any and all roads, land, properties, improvements, facilities, services,
projects, programs, studies and systems, within or without the Community, which may be
necessary, desirable or beneficial to the general common interests of the Community, the
Owners and the Occupants, and to the establishment and funding of reasonable reserves
for replacements and contingencies. The following are some, but not all, of the areas in
which the Association may seek to aid, promote and provide for such common benefit:
maintenance and repair of the exterior portion of Residences, maintenance and repair of
the landscaped areas, concrete improvements, fences, patios and driveways located on a
Lot, social interaction among Members and Occupants, maintenance of landscaping on
Community Areas and public right-of-way and drainage areas within the Community,
construction, operation and maintenance of recreational picnic areas and other facilities
on Community Areas, recreation, insurance, communications, education, transportation,
health, utilities, public services, safety, indemnification of officers, directors and
committee members of the Association, employment of professional managers, hiring
professional consultants such as architects, engineers, attorneys and accountants, and
pledging future Assessments as collateral to secure Association financing.
6.13 Surplus Funds. The Association shall not be obligated to spend in any year all
the Assessments and other sums received by it in such year, and may carry forward as
surplus any balances remaining. The Association shall not be obligated to reduce the
amount of the Annual Assessment in the succeeding year if a surplus exists from a prior
year, and the Association may carry forward from year to year such surplus as the Board
in its discretion may determine to be desirable for the greater financial security of the
Association and the accomplishment of its purposes.
6.14 Transfer Fee. Each subsequent purchaser of a Lot from an Owner other than
Developer or a Developer Affiliate shall notify the Board of his or her purchase of such
Lot so that the Board may maintain an accurate roster of Owners. In order to recover the
expenses associated with updating its roster of Owners, the Board may require the
purchaser of a Lot to pay to the Association a reasonable transfer fee in an amount to be
set by the Board, and the transfer fee shall be secured by the Assessment Lien.
6.15 Notice for Meetings to Consider Special Assessments. All written notices of
any meeting called for the purpose of approving the establishment of any Special
Assessment shall be sent to all Members in accordance with the time periods and
provisions set forth in the Bylaws.
ARTICLE 7
MAINTENANCE
8/30/07 DRAFT 32
7.1 Association's Duty to Maintain Community Areas, Public Right of Way, Lots
and Exterior Elements of Residences.
7.1.1 The Association, or its duly delegated representative, shall
manage, maintain, repair and replace the Community Areas and all Improvements
located thereon, except the Association may, without obligation, maintain areas
which any Municipal Authority or any utility company is maintaining or is
obligated to maintain.
7.1.2 The Board shall be the sole judge as to the appropriate
maintenance of all Community Areas and other properties maintained by the
Association. In the event of any disagreement or uncertainty, the Board shall have
the sole and exclusive power and authority to determine which real property and
Improvements constitute Community Areas to be maintained by the Association,
which determination shall be conclusive, final and unappealable. Any cooperative
action necessary or appropriate to the proper maintenance and upkeep of said
properties shall be taken by the Board or by its duly delegated representative.
7.1.3 In addition to the foregoing maintenance obligations, the
Association shall have the duty of maintaining and repairing the landscaped areas,
concrete improvements, fences, patios and driveways located on a Lot and all of
the exterior elements of the Residences, including without limitation, the utility
and other service lines, whether public or private -company owned, constituting
exterior elements as further described in Section 1.35.2 above, and the structural
integrity of exterior structural walls of Residences, and the cost of said
maintenance and repair shall be a Community Expense of all of the Owners. The
Board shall not need the prior approval of the Members of the Association to
cause such maintenance or repairs to be accomplished, notwithstanding the cost
thereof. Meridian City shall have no obligation or duty to maintain, replace or
repair any utility or other service lines within the Community, including without
limitation any sewer or culinary lines; provided, however, that Meridian City shall
maintain, replace and repair all fire service lines that it owns which are
constructed and installed for fire emergency water access within the Community.
7.1.4 The Association shall, through the Board or its representatives,
provide to the Owners the following services which shall be paid for via the
Assessments, to -wit:
sidewalks; 7.1.4.1 maintain the parking areas, the landscaping, and
7.1.4.2 administer and manage the Community;
metered 7.1.4.3 provide common utilities unless otherwise separately
8/30/07 DRAFT 33
7.1.4.4 set aside reserves for future maintenance, repairs, and
replacements of all areas and Improvements that the Association is obligated as
required by this Declaration;
7.1.4.5 provide snow removal;
7.1.4.6 obtain the insurance required in Article 8 below;
7.1.4.7 acting as attorney -in -fact in the event of damage or
destruction as provided for in Article 8 below; and
7.1.4.8 performing all other acts required by this Declaration, the
Articles, the Bylaws or the other Community Documents.
7.2 Owner's Right and Obligation to Maintain Interior Elements of Residence.
Each Owner shall maintain his, her or its Residence in a safe, sanitary and attractive
condition subject to the following provisions:
7.2.1 Each Owner shall not do anything that would interfere with the
clean and sanitary condition of his or her Lot or Residence or that would interfere
with or prevent the Association from performing its maintenance obligations on
such Lot and exterior elements of the Residence as further described in this
Declaration. For purposes of maintenance, repair, alteration, and remodeling, an
Owner shall maintain and be permitted to alter or remodel all interior elements
and non-structural walls of Residences, and the Association shall maintain the
structural integrity of exterior elements of the Residence as further described in
this Declaration.
7.2.2 Each Owner shall not alter, disturb or relocate utilities which are
located on his, her or its Lot and the exterior elements of the Residence. The
Owner shall maintain and keep in repair all utilities installed within the interior
and exterior boundaries of his, her or its Residence at the point such utilities enter
the Residence.
7.2.3 An Owner shall do no act and shall perform no work that will or
may impair the structural soundness or integrity of the Residence, any Party Wall,
impair any easement or hereditament, or violate any laws, ordinances, regulations
and codes of the United States of America, the State of Idaho, the County of Ada,
or any other agency or entity which may then have jurisdiction over said
Residence. Any expense to the Association for investigation under this Section
shall be borne by Owner if such investigation establishes a violation of this
Section.
7.3 Installation and Maintenance of Lan dsca in . In order to maintain uniformity
of appearance, the Association shall install (if not already installed) grass, trees, plants
and other landscaping improvements (together with a pressurized irrigation system
8/30/07 DRAFT 34
sufficient to adequately water any grass, trees, plants and other landscaping
improvements) as the Association deems appropriate, on all portions of the Lots and the
Community Areas for the benefit of the Owners. The cost of any such installation and
maintenance thereof shall be paid to the Association by the Owners as a part of the
Annual Assessment upon demand and assessment from the Board. All landscaping must
be installed in accordance with plans approved by the Board. Any amounts payable by an
Owner to the Association pursuant to this Section shall be secured by the Assessment
Lien, and the Association may enforce collection of such amounts in the same manner
and to the same extent as provided elsewhere in this Declaration for the collection and
enforcement of Assessments.
7.4 Assessment of Certain Costs of Maintenance and Repair. In the event that the
need for maintenance or repair of the Community Areas, Lots or exterior elements of a
Residence or any other area maintained by the Association is caused through the willful
or negligent act of any Owner, his, her or its family, tenants, guests or invitees, the cost of
such maintenance or repairs shall be added to and become a part of the Assessment to
which such Owner and the Owner's Lot is subject and shall be secured by the Assessment
Lien.
7.5 Improper Maintenance and Use of Lots. In the event any portion of any Lot or
Residence is so maintained as to present a public or private nuisance, or as to
substantially detract from the appearance or quality of the surrounding Lots or other areas
of the Community which are substantially affected thereby or related thereto, or in the
event any portion of a Lot or Residence is being used in a manner which violates the
Community Documents, or in the event the Owner of any Lot is failing to perform any of
its obligations under the Community Documents, the Board may make a finding to such
effect, specifying the particular condition or conditions which exist, and pursuant thereto
give notice thereof to the offending Owner that unless corrective action is take within
fourteen (14) days, the Board may cause such action to be taken at said Owner's cost. If at
the expiration of said 14-day period the requisite corrective action has not been taken, the
Board shall be authorized and empowered to cause such corrective action as it deems
appropriate to be taken and the cost thereof shall be added to and become a part of the
Assessment to which the offending Owner and the Owner's Lot is subject and shall be
secured by the Assessment Lien.
7.6 Maintenance of Pqrtv Walls By acceptance of a deed to a Lot, each Owner
hereby acknowledges, agrees and understands that it is essential that the Party Wall be
maintained in good condition and repair to preserve the integrity of the Residences as
they are used and occupied by the Owners. 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 only one or more, but fewer than all,
of the Owners, the Owner(s) benefited solely 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. In the event that the need for maintenance or
8/30/07 DRAFT 35
repair of the Party Wall is caused through the willful or negligent act of any Owner, his,
her or its family, tenants, guests or invitees, 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 Wall, except as may be otherwise provided in the immediately preceding
sentences, the Owners benefited by the Party Wall agree to share equally in the cost of
maintenance and upkeep thereof in good condition and repair, including the replacement
thereof as necessary. If the Party Wall is destroyed or damaged by fire, water, utility
service line ruptures or other casualty, either Owner may restore it, and the other
Adjoining Owner shall contribute one-half or his or her equal share of the cost of
restoration thereof, provided, however, that any such single maintenance or repair
activity, including a replacement as necessary, which is expected to exceed $5,000.00
shall, except in an emergency, be undertaken only with the approval of the Board and all
Owners benefited by the Party Wall, which approval shall not be unreasonably withheld,
conditioned or delayed.
7.7 Failure to Maintain Party Wall. If any Owner shall fail to comply with the
provisions of this Declaration as to maintenance, repair, or use of the Party Wall, or the
obtaining of insurance as set forth in Section 8.7 below, or other obligations contained
herein "Defaulting Owner"), then in any such event the Adjoining Owner shall have the
right, upon thirty (30) days written notice to the Defaulting Owner (unless within such
3D-day period the Defaulting Owner shall cure such default, or in the case of a
nonmonetary default which by its nature cannot be cured within such 3D-day period, the
Defaulting Owner shall take such action as is reasonably calculated to commence the
curing thereof, and thereafter shall diligently prosecute the curing thereof to completion)
to proceed to take such action as shall be necessary to cure such default, all in the name
of and for the account of the Defaulting Owner. The Defaulting Owner shall on demand
reimburse the other Adjoining Owner taking such action for the monies actually
expended by such Adjoining Owner and the Adjoining Owner's reasonable out-of-pocket
expenses in so doing, together with interest thereon as set forth below from the date of
demand to the date of payment. Notwithstanding the foregoing, if the nondefaulting
Adjoining Owner all in good faith deem that an emergency is occurring or has occurred,
so that the default requires immediate curing, then no notice shall be required and the
nondefaulting Adjoining Owner may act promptly without giving notice and take such
action as is necessary to cure the alleged failure. Any Adjoining Owner performing any
action pursuant to the preceding sentence shall interfere to the minimum extent possible
with the Defaulting Owner's use and occupancy of such Defaulting Owner's Residence,
and, with reasonable promptness, shall give verbal or written notice to the Defaulting
owner of such action and the claimed failure.
7.7.1 Any unresolved dispute, disagreement or controversy between a
Defaulting Owner and an Adjoining Owner shall at the request of either party be
submitted to an arbitration board of at least three (3) members with one chosen by
the Adjoining Owner, the other by the Defaulting Owner and a third by the other
two arbitrators so chosen. The arbitrators shall act in accordance with the
commercial Arbitration Rules then in effect of the American Arbitration Board.
At any time during the arbitration of a claim relating to the interpretation,
8/30/07 DRAFT 36
application or enforcement of any covenants, conditions or restrictions applicable
to the maintenance of Party Walls or rules or regulations adopted by the
Association, the arbitrators may issue an order prohibiting the action upon which
the claim is based. An award must be made within thirty (30) days after the
conclusion of arbitration, unless a shorter period is agreed upon by the Adjoining
Owner and the Defaulting Owner. The decision of the majority of such arbitrators
shall be binding on the Adjoining Owner and the Defaulting Owner. Such
decisions shall include the awarding of costs, including reasonable attorneys fees,
as the arbitrators shall determine. The decision of the arbitrators shall be judicially
enforceable as a judgment.
7.7.2 All sums required to be reimbursed or otherwise paid hereunder by
one Defaulting Owner to the other Adjoining Owner shall bear interest per annum
at the floating rate of I % over the then current "prime rate" of interest announced
in the Wall Street Journal. Such interest rate shall be determined monthly on the
first day of each calendar month. In addition, any Defaulting Owner who fails to
pay its obligations under this Declaration agrees to pay the other Adjoining
Owner's reasonable collection costs, including reasonable attorneys' fees.
7.7.3 All remedies hereby specifically set forth in this Section 7.7 are
cumulative and shall be deemed to be in addition to any remedies available at law
or in equity which shall include the right to restrain by injunction any violation or
threat of violation by any Owner of any of the terms, covenants, or conditions of
this Declaration governing Party Walls and by decree to compel specific
performance of any such terms, covenants, or conditions governing Party Walls, it
being agreed that the remedy at law for any breach of any such term, covenant, or
condition governing Party Walls is not adequate. Notwithstanding the foregoing,
no default by any Owner under this Agreement shall entitle any other Adjoining
Owner to terminate, cancel, or otherwise rescind this Declaration or any terms,
covenants or conditions governing Party Walls.
7.7.4 The Board, without obligation and in its sole and exclusive
discretion, may also notify the Defaulting Owner of the work required to the Party
Wall and demand that it be done within a reasonable and specified period and
individually charge the enforcement costs thereof to such Defaulting Owner,
which enforcement costs shall be secured by the Assessment Lien. Moreover, in
the event a medical emergency, a property damage emergency or similar type of
emergency which requires immediate curing shall arise in connection with an
Owner's Lot, Residence or other Improvement, the Board shall have the right, but
not the obligation, to immediately enter upon the Lot or gain entrance into the
Residence to abate the emergency upon reasonable advance notice to such Owner
considering the nature, scope and extent of the emergency (e.g. advance telephone
calls or doorbell ringing or knocking). The Board shall have the right to
individually charge the cost to cure the emergency condition to such Owner if
such emergency was the personal responsibility of the Owner or if it was caused
by the Owner's negligent or willful acts.
8/30/07 DRAFT 37
ARTICLE 8
INSURANCE
8.1 Scope of Coverage. Commencing not later than the time of the first
conveyance of a Lot to a purchaser, other than Declarant or a Declarant Affiliate, the
Association shall maintain, to the extent reasonably available, the following insurance
coverage:
8.1.1 Property insurance on the Community Areas and Lots insuring
against all risk of direct physical loss, insured against in an amount equal to the
maximum insurable replacement value of the Community Areas, Lots and
Residences, as determined by the Board; provided however, that the total amount
of insurance shall not be less than one hundred percent (100%) of the current
replacement cost of the insured property (less reasonable deductibles), exclusive
of the land, excavations, foundations and other items normally excluded from a
property policy;
8.1.2 Comprehensive general liability insurance, including medical
payments insurance, in an amount determined by the Board, but not less than
$1,000,000. Such insurance shall cover all occurrences commonly insured against
for death, bodily injury and property damage arising out of or in connection with
the use, ownership or maintenance of the Community Areas, Lots, exterior
elements of the Residences and other portions of the Community which the
Association is obligated to maintain under this Declaration, and shall also include
hired automobile and non -owned automobile coverages with cost liability
endorsements to cover liabilities of the Owners as a group to an Owner;
8.1.3 Worker's compensation insurance to the extent necessary to meet
the requirements of applicable law;
8.1.4 Fidelity bonding of the Board and employees of the Association
having control of, or access to, the funds of the Association with loss coverage
ordinarily not less than the maximum amount of funds of the Association over
which the principal(s) under the bond may reasonably be expected to have control
or access at any time;
8.1.5 Errors and omissions insurance coverage for the Board; and
8.1.6 Such other insurance as the Board shall determine from time to
time to be appropriate to protect the Association or the Owners.
8.1.7 Each insurance policy purchased by the Association shall, to the
extent reasonably available, contain the following provisions:
8/30/07 DRAFT 38
8.1.7.1 The insurer issuing such policy shall have no rights of
subrogation with respect to claims against the Association or its agents, servants
or employees, or with respect to claims against Owners or Occupants;
8.1.7.2 No act or omission by any Owner will void the policy or
adversely affect recovery on the policy;
8.1.7.3 The coverage afforded by such policy shall not be brought
into contribution or proration with any insurance which may be purchased by
Owners, Occupants or Mortgagees;
8.1.7.4 A "severability of interest" endorsement which shall
preclude the insurer from denying the claim of an Owner or Occupant because
of the negligent acts of the Association or other Owners or Occupants;
8.1.7.5 Statement naming the Association as the insured; and
8.1.7.6 For policies of hazard insurance, a standard mortgagee
clause providing that the insurance carrier shall notify any Mortgagee named in
the policy at least ten (10) days in advance of the effective date of any
substantial modification, reduction or cancellation of the policy.
8.2 Hazard Insurance. Each policy of hazard insurance obtained pursuant hereto
shall be obtained from an insurance company authorized to write such insurance in the
State of Idaho which has a "B" or better general policyholder's rating or a "6" or better
financial performance index rating in Best's Insurance Reports, an "A" or better general
policyholder's rating and a financial size category of "VIII" or better in Best's Insurance
Reports -international edition, an "A" or better rating in Demotech's Hazard Insurance
Financial Stability Ratings, a "BBBQ" qualified solvency ratio or a "BBB" or better
claims -paying ability rating in Standard and Poor's Insurer Solvency Review, or a "BBB"
or better claims -paying ability rating in Standard and Poor's International Confidential
Rating Service. Insurance issued by a carrier that does not meet the foregoing rating
requirements will be acceptable if the carrier is covered by reinsurance with a company
that meets either one of the A.M. Best general policyholder's ratings or one of the
Standard and Poor's claims -paying ability ratings mentioned above.
8.3 Certificates of Insurance. An insurer which has issued an insurance policy
under this Article 8 shall issue a certificate or a memorandum of insurance to the
Association and, upon request, to any Owner or Mortgagee. Any insurance obtained
pursuant to this Article shall not be cancelled until thirty (30) days after notice of the
Proposed cancellation has been mailed to the Association and to each Owner and each
Mortgagee to whom certificates of insurance have been issued.
8.4 Pavment of Premiums. The premiums for any insurance obtained by the
Association pursuant to this Declaration shall be included in the budget of the
Association and shall be paid by the Association.
8/30/07 DRAFT 39
8.5 Payment of Insurance Proceeds. With respect to any loss to the Community
Areas, Lots or Residences covered by property insurance obtained by the Association, the
loss shall be adjusted with the Association, and the insurance proceeds shall be payable to
the Association and not to any Mortgagee. Subject to the provisions of Section 8.6, the
proceeds shall be disbursed for the repair or restoration of the damage to the Community
Areas, Lots or Residences.
8.6 Repair and Replacement of Damaged or Destroyed Property_. Any portion of
the Community Areas, Lots or Residences which is damaged or destroyed shall be
repaired or replaced promptly by the Association unless repair or replacement would be
illegal under any state or local health or safety statute or ordinance. The cost of repair or
replacement in excess of insurance proceeds and reserves shall be paid by the Association.
If the entire Community Areas, Lots or Residences is not repaired or replaced, insurance
proceeds attributable to the damaged Community Areas, Lots or Residences shall be used
to restore the damaged area to a condition which is not in violation of any state or local
health or safety statute or ordinance and the remainder of the proceeds shall either: (i) be
retained by the Association as an additional capital reserve; (ii) be used for payment of
operating expenses of the Association if such action is approved by the affirmative vote
or written consent, or any combination thereof, of Members representing more than fifty
percent (50%) of the votes in the Association; or (iii) shall be distributed in equal shares
per Membership to the Owners of each Lot as their interests appear.
8.7 Insurance of Party Walls; Waiver. By acceptance of a deed to a Lot, each
Owner hereby acknowledges his, her or its independent insurance obligations for the
respective Party Wall which constitutes a portion of the Owner's Residence, and agrees to
maintain in full force and effect "all-risk" property insurance with respect to the
Residence owned by such Owner. Such insurance shall be in an amount equal to at least
100% of the replacement cost of such Owner's Residence, exclusive of the cost of
excavation, foundations and footings, and shall protect against loss or damage by fire,
water, utility service line ruptures and all other hazards that are normally covered by the
standard extended coverage endorsement. Each policy shall be carried with a company
rated X or better in "Best's Insurance Guide", and each Owner shall provide a copy of the
policy obtained by such Owner to the Board and the other Adjoining Owner and such
policy shall require thirty (30) days notice to the Board and the other Adjoining Owner
before the policy can be cancelled. All policy proceeds payable with respect to damage or
destruction of the Party Wall shall be used by the Owners, to the extent necessary, to
repair and restore the damage or destruction for which the proceeds are payable. Each
Owner agrees to make such repair and restoration whether or not the policy proceeds are
adequate for such purposes or whether or not the occurrence resulting in such damage or
destruction is covered by insurance. Each Owner hereby waives any rights it may have
against the other Adjoining Owner on account of any loss or damage to its Residence
which arises from any risk covered by fire and extended coverage insurance carried
hereunder, whether or not such other Adjoining Owner may have been negligent or at
fault in causing such loss or damage. Each Owner shall obtain a clause or endorsement in
the policies of such insurance which each Owner obtains to the effect that the insurer
8/30/07 DRAFT 40
waives, or shall otherwise be denied, the right of subrogation against the other Adjoining
Owner for loss covered by such insurance. It is understood that such subrogation waivers
may be operative only as long as such waivers are available in the State of Idaho and do
not invalidate any such policies. If such subrogation waivers are allegedly not operative
in the State of Idaho, notice of such fact shall be promptly given by the Owner obtaining
insurance to the Board and the other Adjoining Owner.
ARTICLE 9
MORTGAGEE REQUIREMENTS
9.1 Notice of Action. The Board shall maintain a roster containing the name and
address of each Eligible Mortgagee as such term is defined herein and in Section 1.18
above. To be considered an Eligible Mortgagee, a First Mortgagee shall provide the
Board with a certified copy of its Recorded First Mortgage and the name and address of
the First Mortgagee and a statement that the Mortgage is a First Mortgage together with a
written request that it receive notice of the matters and actions described below. The
Board shall strike an Eligible Mortgagee from the roster upon request by such Eligible
Mortgagee or upon the Board's receipt of a certified copy of a Recorded full release or
satisfaction of the Eligible Mortgage. The Board shall give notice of such removal to the
Eligible Mortgagee unless the removal is requested by the Eligible Mortgagee. Upon the
Board's receipt of such written request, an Eligible Mortgagee shall be entitled to timely
written notice of.
9.1.1 Any condemnation loss or any casualty loss which affects a
material portion of the Community or any Lot on which there is a Mortgage held,
insured or guaranteed by such Eligible Mortgagee, insurer or governmental
guarantor;
9.1.2 Any delinquency in the payment of Assessments or charges owed
by an Owner whose Lot is subject to a Mortgage held, insured or guaranteed by
such Eligible Mortgagee, insurer or governmental guarantor, which default
remains uncured for a period of sixty (60) days; and
9.1.3 Any lapse, cancellation or material modification of any insurance
policy or fidelity bond or insurance maintained by the Association.
9.2 Availability of Community Documents and Financial Statements. The
Association shall maintain and have current copies of the Community Documents,
membership register, books, records, and financial statements available for inspection by
Members or by Eligible Mortgagees. Generally, these documents shall be available
during the Association's normal business hours, and may be maintained and kept at the
office of the manager for the Association. The Association may, as a condition to
permitting a Member to inspect the membership register or to its furnishing information
from the register, require that the Member agree in writing not to use, or allow the use of,
information from the membership register for commercial or other purposes not
8/30/07 DRAFT 41
reasonably related to the regular business of the Association and the Member's interest in
the Association.
9.3 Subordination of Lien. The Assessment or claim against a Lot for unpaid
Assessments or charges levied by the Association pursuant to this Declaration shall be
subordinate to the First Mortgage affecting such Lot, and the First Mortgagee there under
which comes into possession of or which obtains title to such Lot shall take the same free
of such lien or claim for unpaid Assessments or charges, but only to the extent of
Assessments or charges which accrue prior to foreclosure of the First Mortgage, exercise
of a power of sale available thereunder, or taking of a deed or assignment in lieu of
foreclosure. No Assessment, charge, Assessment Lien, or claim which is described in the
preceding sentence as being subordinate to a First Mortgage, or as not to burden a First
Mortgagee which comes into possession or which obtains title to a Lot, shall be collected
or enforced by the Association from or against a First Mortgagee, a successor in title to a
First Mortgagee, or the Lot affected or previously affected by the First Mortgage
concerned. The provisions of this Section 9.3 shall be in addition to the rights of a First
Mortgagee under Section 6.5.4.
9.4 Notice to Eligible
Mort--. The Association shall give timely written
notice of the events listed in Section 9.1 above to any Eligible Mortgagee who requests
such notice in writing.
9.5 Payment of Taxes. In the event any taxes or other charges which mayor have
become a lien on the Community Areas are not timely paid, or in the event the required
hazard insurance described in Section 8.2 lapses, is not maintained, or the premiums
therefore are not paid when due, any First Mortgagee or any combination of First
Mortgagees may jointly or singly, pay such taxes or premiums or secure such insurance.
Prior to paying any taxes or premiums, such First Mortgagee or First Mortgagees shall
provide thirty (30) days advance written notice to the Board, which notice shall specify
the nature of the taxes or premiums and suggest a reasonable cure period for such
payments.
9.6 Priority. No provision of this Declaration or the Articles gives or may give a
Member or any other party priority over any rights of Mortgagees pursuant to their
respective Mortgages in the case of a distribution to Members of insurance proceeds or
condemnation awards for loss to or taking of all or any part of the Lots or the Community
Areas. All proceeds or awards shall be paid directly to any Mortgagees of Record, as
their interests may appear.
ARTICLE 10
CONDEMNATION
10.1 Notice. Whenever all or any part of the Community Areas shall be taken or
conveyed in lieu of and under threat of condemnation, each Member shall be entitled to
8/30/07 DRAFT 42
notice of the taking, but the Association shall act as attorney -in -fact for all Members in
the proceedings incident to the condemnation proceeding, unless otherwise prohibited by
law.
10.2 Partial Condemnation; Distribution of Award; Reconstruction. The award
made for such taking shall be payable to the Association as trustee for all Members to be
disbursed as follows: If the taking involves a portion of the Community Areas on which
Improvements have been constructed, then, unless within sixty (60) days after such
taking Declarant and Members representing at least two-thirds (2/3rds) of the total votes
of the Association shall otherwise agree, the Association shall restore or replace such
Improvements so taken on the remaining land included in the Community Areas to the
extent lands are available therefore, in accordance with plans approved by the Board. If
such Improvements are to be repaired or restored, the provisions in Article 8 above
regarding the disbursement of funds in respect to casualty damage or destruction which is
to be repaired shall apply. If the taking does not involve any Improvements on the
Community Areas, or if there is a decision made not to repair or restore, or if there are net
funds remaining after any such restoration or replacement is completed, then such award
or net funds shall be distributed to Members in proportion to their respective Membership
Interests, first to the Mortgagees and then to the Members.
10.3 Complete Condemnation. If the entire Community is taken, condemned, sold,
or otherwise disposed of in lieu of or in avoidance of condemnation, then the regime
created by this Declaration shall terminate, and the portion of the condemnation award
attributable to the Community Areas shall be distributed to Members based upon the
relative value of the Lots prior to the condemnation.
ARTICLE 11
TERM, TERMINATION AND AMENDMENT
11.1 Term: Method of Termination. This Declaration shall be effective upon the
date of Recordation hereof and, as amended from time to time, shall continue in full force
and effect for a term of fifty (50) years from the date this Declaration is recorded. From
and after said date, this Declaration, as amended, shall be automatically extended for
successive periods of ten (10) years each, unless there is an affirmative vote to terminate
this Declaration by the then Members casting two-thirds (213rds) of the total votes cast at
an election held for such purpose or otherwise approved in writing within six (6) months
prior to the expiration of the initial effective period hereof or any ten-year extension. If
the necessary votes and consents are obtained, the Board shall cause to be Recorded a
certificate of termination, duly signed by the President or Vice President and attested by
the Secretary or Assistant Secretary of the Association, with their signatures
acknowledged. Thereupon these covenants shall have no further force and effect, and the
Association shall be dissolved pursuant to the terms set forth in its Articles.
11.2 Amendments. This Declaration may be amended by Recording a certificate of
amendment, duly signed and acknowledged by and on behalf of the Association
("Certificate of Amendment"). The Certificate of Amendment shall set forth in full the
8/30/07 DRAFT 43
amendment adopted, and, except as provided elsewhere in this Declaration, shall certify
that at a meeting duly called and held pursuant to the provisions of the Articles and
Bylaws or by separate written ballot without a meeting, the Members casting at least
sixty two-thirds (2/3rds) of the total votes of the Association at the election voted
affirmatively for the adoption of the amendment. Within twenty-five (25) years from the
date of Recording this Declaration, and so long as the Declarant is the Owner of any Lot
in the Community, this Declaration may be amended or terminated only with the written
approval of the Declarant.
11.3 Unilateral Amendments. Declarant alone may amend or terminate this
Declaration prior to the closing of a sale of the first Lot. Notwithstanding anything
contained in this Declaration to the contrary, this Declaration may be amended
unilaterally at any time and from time to time by Declarant (a) if such amendment is
necessary to bring any provision hereof into compliance with any applicable
governmental statute, rule, or regulation or judicial determination which shall be in
conflict therewith; or (b) if such amendment is reasonably necessary to enable any
reputable title insurance company to issue title insurance coverage with respect to the
Lots and Residences subject to this Declaration; provided, however, any such amendment
shall not adversely affect the title to any Owner's property unless any such Owner shall
consent thereto in writing. Further, prior to its transfer of control of the Association
pursuant to Section 2.14 above, Declarant may unilaterally amend this Declaration for
any other purpose; provided, however, any such amendment shall not materially
adversely affect the substantive rights of any Owner hereunder, nor shall it adversely
affect title to any property without the consent of the affected Owner.
11.4 Right of Amendment if Requested by Governmental A ency or Federallv
Chartered Lending Institutions. Anything in this Article or Declaration to the contrary
notwithstanding, Declarant reserves the unilateral right to amend all or any part of this
Declaration to such extent and with such language as may be necessary to satisfy any
OPA requirements or as may be requested by a State Department of Real Estate (or
similar agency), FHA, VA, the FHLMC or FNMA and to further amend to the extent
requested by any other federal, state or local governmental agency which requests such
an amendment as a condition precedent to such agency's approval of this Declaration, or
by any federally chartered lending institution as a condition precedent to lending funds
upon the security of any Lot(s) or any portions thereof. Any such amendment shall be
effected by the Recordation by Declarant of a Certificate of Amendment duly signed by
or on behalf of the members, authorized agents, or authorized officers of Declarant, as
applicable, with their signatures acknowledged, specifying the federal, state or local
governmental agency or the federally chartered lending institution requesting the
amendment and setting forth the amendatory language requested by such agency or
institution. Recordation of such a Certificate of Amendment shall be deemed conclusive
proof of the agency's or institution's request for such an amendment, and such Certificate
of Amendment, when Recorded, shall be binding upon all of the Community and all
persons having an interest therein. It is the desire of Declarant to retain control of the
Association and its activities during the anticipated period of planning and development.
If any amendment requested pursuant to the provisions of this Section 11.4 deletes
8/30/07 DRAFT 44
diminishes or alters such control, Declarant alone shall have the right to amend this
Declaration to restore such control.
ARTICLE 12
GENERAL PROVISIONS
12.1 Enforcement. The Association or any Owner shall have the right to enforce
the Community Documents.
12.2 Interpretation. Except for judicial construction, the Association 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 benefited or bound by this Declaration.
12.3 Seve_ rability. Any determination by any court of competent jurisdiction that
any provision of this Declaration is invalid or unenforceable shall not affect the validity
or enforceability of any of the other provisions hereof.
12.4 Pe etuities. If any of the covenants, conditions, restrictions or other
provisions of this Declaration shall be unlawful, void or voidable for violation of the rule
against perpetuities, then such provisions shall continue only until twenty-one (21) years
after the death of the last survivor of the now living descendants of the person holding the
office of President of the United States on the date this Declaration is Recorded.
12.5 Change of Circumstances. Except as otherwise expressly provided in this
Declaration, no change of conditions or circumstances shall operate to extinguish,
terminate or modify any of the provisions of this Declaration.
12.6 Association Rules. In addition to the right to adopt rules and regulations on
the matters expressly mentioned elsewhere in this Declaration, the Association shall have
the right to adopt, as part of the Association Rules, additional rules and regulations with
respect to any other aspects of the Association's rights, activities and duties, provided said
additional rules and regulations are not inconsistent with the provisions of the other
Community Documents.
12.7 Laws Ordinances and Re ulations.
12.7.1 The covenants, conditions and restrictions set forth in this
Declaration and the provisions requiring Owners and other Persons to obtain the
approval of the Board, with respect to certain actions are independent of the
obligation of the Owners and other Persons to comply with all applicable laws,
ordinances and regulations, and compliance with this Declaration shall not relieve
an Owner or any other Person from the obligation also to comply with all
applicable laws, ordinances and regulations.
8/30/07 DRAFT 45
12.7.2 Any violation of any state, municipal or local law, ordinance or
regulation pertaining to the ownership, occupation or use of any property within
the Community is hereby declared to be in violation of this Declaration and
subject to any or all of the enforcement proceedings set forth herein.
12.8 References to this Declaration in Deeds. Deeds to and instruments affecting
any Lot or any other part of the Community may contain the covenants, conditions and
restrictions herein set forth by reference to this Declaration; but regardless of whether any
such reference is made in any deed or instrument, each and all of the provisions of this
Declaration shall be binding upon the grantee -Owner or other Person claiming through
any instrument and his, her or its heirs, executors, administrators, successors and assigns.
12.9 Gender and Number. Wherever the context of this Declaration so requires,
any word used in the masculine, feminine or neutural genders shall include each of the
other genders, words in the singular shall include the plural, and words in the plural shall
include the singular.
12.10 Captions and Title• Section References- Exhibit. All captions, titles or
headings of the Articles and Sections in this Declaration are for the purpose of reference
and convenience only and are not to be deemed to limit, modify or otherwise affect any
of the provisions hereof or to be used in determining the meaning or intent thereof.
References in this Declaration to numbered Articles, Sections or Subsections, or to a
lettered Exhibit, shall be deemed to be references to those paragraphs or Exhibit so
numbered or lettered in this Declaration, unless the context otherwise requires. Any
Exhibit referred to in this Declaration is hereby incorporated herein by reference and
fully made a part hereof.
12.11 Notices. If notice of any action or proposed action by the Board or any
committee or of any meeting is required by applicable law, the Community Documents or
resolution of the Board to be given to any Owner, Lessee or Occupant then, unless
otherwise specified in the Community Documents or in the resolution of the Board, or
unless otherwise required by law, such notice requirement shall be deemed satisfied if
notice of such action, proposed action or meeting is: (a) sent by United States mail to the
last known mailing address of the Owner, Lessee or Occupant (as applicable), as shown
in the records of the Association; or (b) if no such mailing address is reflected on the
records of the Association, then sent by United States mail to the mailing address of the
Lot (as applicable) on file with the Ada County Assessor's Office; or (c) if there is no
such mailing address reflected in the records of the Association and there is no then
current address on file with the Ada County Assessor's Office, then sent or given in
whatever reasonable manner the Board may elect, which may include, without limitation,
publishing the same in any newspaper in general circulation within Ada County, Idaho.
This Section shall not be construed to require that any notice be given if not otherwise
required and shall not prohibit satisfaction of any notice requirement in any other
reasonable and appropriate manner.
8/30/07 DRAFT 46
12.12 Board Member Indemnification. The Association shall indemnify each and
every director and officer of the Association, and each and every member of any
committee appointed by the Board (including, for purposes of this Section, former
officers and directors of the Association, and former members of committees appointed
by the Board) (collectively, "Association Officials" and individually an "Association
Official") against any and all expenses, including attorneys' fees, reasonably incurred by
or imposed upon an Association Official in connection with any action, suit or other
proceeding (including settlement of any suit or proceeding, if approved by the Board
serving at the time of such settlement) to which he or she may be a party by reason of
being or having been an Association Official, unless the liability for such expenses arises
out of his or her own intentional misconduct. No Association Official shall have any
personal liability with respect to any contract or other commitment made by them or
action taken by them, in good faith, on behalf of the Association (except indirectly to the
extent that such Association Official may also be a Member and therefore subject to
Assessments hereunder to fund a liability of the Association), and the Association shall
indemnify and forever hold each such Association Official free and harmless from and
against any and all liability to others on account of any such contract, commitment or
action. Any right to indemnification provided for herein shall not be exclusive of any
other rights to which any Association Official may be entitled. If the Board deems it
appropriate, in its sole discretion, the Association may advance funds to or for the benefit
of any Association Official who may be entitled to indemnification hereunder to enable
such Association Official to meet on -going costs and expenses of defending himself or
herself in any action or proceeding brought against such Association Official by reason of
his or her being, or having been, an Association Official. In the event it is ultimately
determined that an Association Official to whom, or for whose benefit, funds were
advanced pursuant to the preceding sentence does not qualify for indemnification
pursuant to this Section or otherwise under the Articles, Bylaws or applicable law, such
Association Official shall promptly upon demand repay to the Association the total of
such funds advanced by the Association to him or her, or for his or her benefit, with
interest (should the Board so elect) at a rate as exclusively determined by the Board from
the date(s) advanced until paid.
12.13 Owner Indemnification. The Association shall indemnify each and every
Owner against any and all expenses, including attorneys' fees, reasonably incurred by or
imposed upon an Owner in connection with any action, suit or other proceeding
(including settlement of any suit or proceeding) to which he or she may be a party by
reason of the Association, or its agents, failure to procure the insurance required by
Article 8 above or the performance of its maintenance responsibilities on any portion of a
Lot as required by this Declaration, unless the liability for such expenses arises out of his
or her own intentional misconduct. No Owner shall have any personal liability with
respect to any contract or other commitment made by the Board on behalf of the
Association to perform its maintenance responsibilities on any Lot (except indirectly to
the extent that such Owner may also be a Member and therefore subject to Assessments
hereunder to fund a liability of the Association), and the Association shall indemnify and
forever hold each such Owner free and harmless from and against any and all liability to
others on account of any such contract, commitment or action. Any right to
8/30/07 DRAFT 47
indemnification provided for herein shall not be exclusive of any other rights to which
any Owner may be entitled. If the Board deems it appropriate, in its sole discretion, the
Association may advance funds to or for the benefit of any Owner who may be entitled to
indemnification hereunder to enable such Owner to meet on -going costs and expenses of
defending himself or herself in any action or proceeding brought against such Owner by
reason of his or her being, or having been, an Owner. In the event it is ultimately
determined that an Owner to whom, or for whose benefit, funds were advanced pursuant
to the preceding sentence does not qualify for indemnification pursuant to this Section,
such Owner shall promptly upon demand repay to the Association the total of such funds
advanced by the Association to him or her, or for his or her benefit, with interest (should
the Board so elect) at a rate as exclusively determined by the Board from the date(s)
advanced until paid.
12.14 No Partition. No Person acquiring any interest in the Property or any part
thereof shall have a right to, nor shall any person seek, any judicial partition of the
Community Areas, nor shall any Owner sell, convey, transfer, assign, hypothecate or
otherwise alienate any funds or other assets of the Association except in connection with
the sale, conveyance or hypothecation of such Owner's Residence (and only appurtenant
thereto), or except as otherwise expressly permitted herein. This Section 12.14 shall not
be construed to prohibit the Board from acquiring and disposing of tangible personal
property nor from acquiring or disposing of title to real property (other than disposition of
title to the Community Areas, which shall be subject to Article 4) which mayor may not
be subject to this Declaration.
12.15 Number of Days. In computing the number of days for purposes of any
provision of this Declaration or the Articles or Bylaws, all days shall be counted
including Saturdays, Sundays and holidays; provided however, that if the final day of any
time period falls on a Saturday, Sunday or legal holiday, then the final day shall be
deemed to be the next day which is not a Saturday, Sunday or legal holiday.
12.16 Notice of Violation. The Association shall have the right to Record a written
notice of a violation by any Owner or Occupant of any restriction or provision of the
Community Documents. The notice shall be executed and acknowledged by an officer of
the Association and shall contain substantially the following information: (a) the name of
the Owner or Occupant; (b) the legal description of the Lot against which the notice is
being Recorded; (c) a brief description of the nature of the violation; (d) a statement that
the notice is being Recorded by the Association pursuant to this Declaration; and (e) a
statement of the specific steps which must be taken by the Owner or Occupant to cure the
violation. Recordation of a notice of violation shall serve as a notice to the Owner and
Occupant, and to any subsequent purchaser of the Lot, that there is such a violation. If,
after the Recordation of such notice, it is determined by the Association that the violation
referred to in the notice does not exist or that the violation referred to in the notice has
been cured, the Association shall Record a notice of compliance which shall state the
legal description of the Lot against which the notice of violation was recorded, the
Recording data of the notice of violation, and shall state that the violation referred to in
the notice of violation has been cured or, if such be the case, that it did not exist.
8/30/07 DRAFT 48
Notwithstanding the foregoing, failure by the Association to Record a notice of violation
shall not constitute a waiver of any existing violation or evidence that no violation exists.
12.17 Disclaimer of Representations. While neither the Declarant nor any Declarant
Affiliate believes that any of the restrictive covenants contained in this Declaration is or
may be invalid or unenforceable for any reason or to any extent, neither the Declarant nor
any Declarant Affiliate makes any warranty or representation as to the present or future
validity or enforceability of any such restrictive covenant. Any Owner acquiring a Lot in
reliance on one or more of such restrictive covenants shall assume all risks of the validity
and enforceability thereof and by accepting a deed to the Lot agrees to hold the Declarant
and all Declarant Affiliates harmless there from.
12.18 Amendments Affectin- Declarant Rights. Notwithstanding any other
provision of this Declaration to the contrary, no provision of this Declaration (including
but not limited to, this Section) which grants to or confers upon the Declarant or upon
any Declarant Affiliate any rights, privileges, easements, benefits or exemptions (except
for rights, privileges, easements, benefits, or exemptions granted to or conferred upon
Owners generally) shall be modified, amended or revoked in any way, so long as the
Declarant, any Declarant Affiliate or a trustee for the benefit of the Declarant or any
Declarant Affiliate owns any portion of the Property, without the express written consent
of the Declarant.
12.19 Conflicts. In the event of any conflict or inconsistency between this
Declaration and the other Community Documents, priority shall be given to the
Association Rules, as each respective document may be amended from time tCommunity Documents in the following order: this Declaration, Articles, Bylaws, and
o time.
12.20 Authority to Enter into Public or Private Bulk Service A reements and
Con_. Subject to the disclaimers of representations set forth in Section 2.9 above and
elsewhere in this Declaration, the Association may, without obligation, provide
Community Services (as such term is defined below) pursuant to the terms and provisions
of this Section 12.20. The Board shall have the right, power and authority to determine
whether or not such Community Services shall be provided by private or public entities.
12.20.1 The Board, acting on behalf of the Association, shall have
the right, power and authority to enter into one or more Bulk Service Agreements
with one or more Bulk Providers (each of which terms is defined below), for such
term(s), at such rate(s) and on such other terms and conditions as the Board deems
appropriate, all with the primary goals of providing to Owners and Occupants of
Lots both within the Community, or within one or more portions thereof, certain
facilities, services, and/or personnel for the collection and disposal of solid waste
and refuse, cable television, community satellite television, high speed Internet,
security monitoring or other electronic entertainment, information,
communication or security services, or any concierge or other personal services
(collectively, "Community Services"): (a) which might not otherwise be generally
available to such Owners and Occupants; (b) at rates or charges lower than might
8/30/07 DRAFT 49
otherwise generally be charged to Owners and Occupants for the same or similar
services; (c) otherwise on terms and conditions which the Board believes to be in
the interests of Owners and Occupants generally; or (d) any combination of the
foregoing.
12.20.2 If all Lots within the Community are to be served by a
particular Bulk Service Agreement, the Board shall have the option either to: (a)
include the Association's costs under such Bulk Service Agreement in the budget
for each applicable fiscal year and thereby include such costs in the Annual
Assessments for each such applicable year; or (b) separately bill to each Owner
his, her or its proportionate share of the Association's costs under such Bulk
Service Agreement, as reasonably determined by the Board, and with such
frequency as may be determined by the Board, but no more often than monthly.
Such "separate billing" may be made as one or more separate line items on
billings or invoices from the Association to the affected Owner(s) for
Assessments or other charges. If not all Lots within the Community will be served
by a particular Bulk Service Agreement the Board shall have only the billing
option described in clause (b) above.
12.20.3 Declarant, for each Lot, hereby covenants and agrees, and
each Owner other than the Declarant, by becoming the Owner of a Lot, is deemed
to covenant and agree, to pay all amounts levied or charged against or to him, her
or it (or his, her or its Lot) by the Board pursuant to this Section 12.20 and all
such amounts: (a) shall be deemed to be a part of the Assessments against the
Lots (or against or to whose Owners they are levied or charged); (b) with interest,
late charges and all costs, including but not limited to reasonable attorneys fees,
incurred by the Association in collecting or attempting to collect delinquent
amounts, shall be secured by the lien for Assessments established by this
Declaration; and (c) as with other Assessments, shall also be the personal
obligation of each Person who was an Owner of the Lot at the time such amount
became due (which personal obligation for delinquent amounts shall not pass to
the successors in title of the Owner unless expressly assumed by them unless title
is transferred to one or more such successors for purposes of avoiding payment of
such amounts or other Assessments or is transferred to a Person controlling,
controlled by or under common control with the Owner transferring title).
12.20.4 No Owner of a Lot covered by a Bulk Service Agreement
shall be entitled to avoid or withhold payment of amounts charged by the Board to
such Owner or such Owner's Lot under this Section, whether on the basis that
such Owner does not use, accept or otherwise benefit from the services provided
under such Bulk Service Agreement, or otherwise. However, the Board shall have
the right, at its option, to exempt from payment of such amounts any Lot upon
which no Residence or other improvement has been completed.
12.20.5 "Bulk Provider" means a private public quasi -public
utility or other company which provides, or proposes top provide any Community
8/30/07 DRAFT 50
Service to Owners, Occupants, Residences, Lots or any Community Areas
pursuant to a "Bulk Service Agreement" (as defined below).
12.20.6 "Bulk Service Agreement" means an agreement between
the Association and a Bulk Provider pursuant to which the Bulk Provider would
provide Community Services to Owners, Occupants, Residences, Lots or any
Community Areas.
12.20.7 Prior to Declarant's transfer of control of the Association
pursuant to Section 2.14 above, the Board shall not, without the approval of
Members holding at least majority of all Members represented in person or by
proxy at an annual or special meeting of the Association, enter into a Bulk Service
Agreement which imposes on the Association or the Members any obligation to
pay the direct costs of construction of any cables, lines or other facilities or
equipment for Community Services, but nothing in this Section shall prevent the
Board from entering into, or require approval by the Members of any Bulk
Service Agreement which imposes on the Association or the Members installation,
connection, service charge or similar charges or fees which do not exceed those
generally prevailing at the time within the greater Ada County, Idaho, area, or
which includes as a component of the monthly fee charged by the Bulk Provider
amortization of some or all of its capital costs and related costs in providing
services under the Bulk Service Agreement.
IN WITNESS WHEREOF, Declarant has executed this instrument as of the date first set
forth above.
8/30/07 DRAFT 51
By:
Its:
STATE OF IDAHO
County of :ss.
Company Name???'
an Idaho corporation
The foregoing instrument was acknowledged before me this day of
20 , by , the
Of Company Name., an Idaho corporation on behalf of such entity.
Notary Public
My Commission Expires:
8/30/07 DRAFT 52
EXHIBIT A
Community Legal Description
8/30/07 DRAFT 53
When Recorded, Please Return To:
DECLARATION OF COVENANTS, CONDITIONS, EASEMENTS
AND RESTRICTIONS
FOR
CHALET MARSEILLE
8/30/07 DRAFT 54
Table of Contents
Article I DEFINITIONS ..............
e
1.1 "Additional Land" .............
.......P2
.2 "Adjoining Owner" ...........
..................................2
..................................................................................2
.3 "Annual Assessments"
.......................................................................................2
1.4 "Articles".............................................................................................................2
1.5 "Assessment" ..............................
1.6 "Assessment Lien" .............................................................................................2
1.7 "Association" ..,,,
.............................................................. 1.8 "Association Rules"
"'••••••••••••••••••••••••••......2
1.9 "Board"..............................................................................................................
3
1.10 "Bylaws" ............................
.3
"Community •.....................................................................................................
1.12 "Community Areas" .........................................
........ 3
1.13 "Community Documents"
........................................ 3
.................................................................................3
1.14 "Community Expenses"....................................................................................
1.15 "Declarant" .,.,,,,................................................................................................3
1.16 "Declarant Affiliate" ..........
1.17 " Declaration" ........
1.18 "Eligible
3
.......................................................................
Mortgagee"
3
1.19 " HOPA"............................................................................................................4
1.20 "lmprovement(s)"
4
1.21 "Lessee"
1.22 "Lot(s)..
1.23 "Member
4
........................................................................................
1.24 "Membership"
1.25 "Mort..................................................................................4
gage............................................................................................
.................4
1.26 "Mortgagee"
..................
1.27 Municipal Authority"
........... ...4
......•••.
1.28 "Occupant...........................................................................4
.......................................................................................................4
1.29 "Owner"
..,,,......................................................................................................5
1.30 "Party Wall"
.............
1.31 " Person"
..........................
1.32 "Plat"..................................................................................5
5
................................................................................................................5
1.33 "Property"
.,,,,,,•,•
1.34 Record,.... .................
.
"Recording,,, "Recorded"
.......................................
"Recordation" S
1.35 "Residence(s)„
and Recordation ....,,,
1.36 Special Assessment"
5
.........
1,37 "Supplemental Declaration"
..............................................................................6
8/30/07 DRAFT 55
Article 2 DECLARANT'S RIGHTS AND OWNERS' OBLIGATIONS .......................6
2.1 Property Subject to this Declaration .............................
2.2 No Condominium """""' 6
7
22.3 Lots and Residences.............................................................................................7
.4 The Association...............................................................................................
2.5 Additional Land 7
................... .....
...... .................
2.6 Incidents of Ownershi """""""""""
p; Membership in the """"'8
Association...................................9
2.7 Responsibility for Com
munity Areas Damage ............
2.8 Reservation of Right to Construct Resid"""""""'•••••••••••••••9
ences and Improvements .....................9
2.9 Declarant's Disclaimer of Representations........................................................
2.10 Security .............. ..............................................................................................10.10
2.11 Readjustment of Lot Line Boundaries..............................................................10
2.12 Development Plan ..............
2.13 Community Area Improvements.......................................................................11
2.14 Declarant's Control...........................................................................................12
Article 3 LAND USES, PERMITTED USES AND RESTRICTIONS ................... 12
3.3.1 Land Uses ......... ............................ .............................
2 Age Restrictions on Rentals and Initial Sale of Residences
.....12
3.3 Additional Restrictions on Use ............................... 13
.............................
Approvals for Further Property Restrictions 13
3.4 Required A
3.5 Lots and Improvements """""""" 17
...........................................................................17
3.6 Declarant's Exemption ........
..... ..............
COMPARE ......... .......
1 AGAINST DOCUNIENT... MISSING A SECTION: 4.4 PRIVATE.. 18
ROADWAYS .......Emergency Vehicle Access,
Article 4 EASEMENTS .....,..
4.1 Owners' Easements of Eno 18
4.2 Enjoyment ................
Utility Easement ......... •-•••••••.....18
4.3 Easements for C ommunit In ......................
y gress and E 19
4.4 Private Roadways; Egress ............ .......... ..........19
Easements for Emergency Vehicle Access < 4.5 Declarant's Use and Easements
4.6 Easemen
t in Favor of Association .. """"' '•••••••••
4.7 Easement for pa
rty Wall .............................. .................. .............
Article 5 THE ASSOCIATION; ORGANIZATION; ASSOCIATION MEMBERSHIP
AND VOTING RIGHTS
5.1 Formation of Association ...............
22
5.2 Governing22
Board and Officers ............
5.3 Manner of Exercising22
Votes for Directors..........................................................
5.4 Association Rules ................ 22
5.5 Personal Liability ..................
Borrowing Power ••••........23
5.7 Express and Implied Rights ...............
23
5.8 Membership Association ............................................................................23
in the Ass.....................................................................24
55.9 Votes in the Association.....................................................................................24
.10 Voting Procedures.............................................................................................24
8/30/07 DRAFT 56
5.11 Transfer of Membership...................................................................................25
Article 6 COVENANT FOR ASSESSMENTS AND CREATION OF LIEN ...............25
6.1 Creation of Lien and Personal Obli
6.2 Annual Assess gation of Assessments.................................25
ment.............................................................................................26
6.3 Special Assessmen
ts ....................
6.4 Rules Re """"""""""
Regarding Billing ......................................
g and Collection Procedures.........................................."""" 27
6.5 Effect of Nonpayment of Assessments; ...28
6.6 Evidence of Payment of Assessments . Remedies of the Association ...............
6.7 Declarant and """"' Declarant Affiliate Subsidy """""""""
.....30
6.8 Encumbrances 30
...................................................................................................31
6.9 Effect of Conveyance ..........
6.10 Ten t Recovery......................................................31
6.11 Statement of Account 31
6.12 Purposes
Association's Funds May """""" 31
for Which Y be Used 6.13 Surplus Funds ...................................32
6.14 Transfer Fee ........
..................
32
6.15 Notice for Meetings to Consider S 32
Special Assessments.....................................32
Article 7 MAINTENANCE .......................
7.1 Association's Duty to Maintain................................... ...................... Community Areas, Public Right of Way, 33
Lots and Exterior Elements of Residences
7.2 Owner's Right and ...................................................... .. .33
Obligation to Maintain Interior Elements of Residence ......34
7.3 Installation and Maintenance of Landscaping
7.4 Assessment of Certain ....................................................
""""""'•""••••••••••••••• Costs of Maintenance and """ 35
7.5 Improper Maintenance and Us
eof Lots..............................................................35
7.6 Maintenance of Party Walls
7.7 Failure 35
allure to Maintain Party Wall...........................................................................36
Article 8 INSURANCE
38
8.1 Scope of Coverage...............................................................
8.2 Hazard Insurance 38
8.3 Certificates................................................................................................39
of Insurance.....................................................................................39
8.4 Payment of Premiums
8.5 Payment .........................................................................................40
a ment of Insurance Proceeds ....
8.6 Repair and """"""'•••••
P Replacement of """ •
8.7 Insurance Damaged or Destroyed Property............................40
of Party Walls; Waiver....
...............................................................40
Article 9 MORTGAGEE REQUIREMENTS
9.1 Notice of A ................................................................41
Action .......
9.2 Availa
bility of Com '*"*"**""""""
mumtY ments and Financial 41
9.3 Subordination of Lien Statements
.41
9.4 Notice to.........................................................................................42
Eligible Mortgagees
9.6 9.5 Payment of Taxes ................................................................................................42
Priority......................................................................................................
42
8/30/07 DRAFT 57
Article 10 CONDEMNATION
...........
10.1 Notice .....................
10.2 Pa .....................
Partial Conde .......................
Condemnation;
............. """""""""
Distribution 43
10.3 Complete Conde of Award; Reconstruction ........................43
Condemnation
..................................................................................43
Article 11 TERM,
TERMINATION AND AMENDMENT
Term; Method of Termination
'
..........................................43
....
11.2 Amendments
11.3 Unilateral A
43
mendments ..........................
11.4 Right of Amendment
44
......................
if 44
Re u q ested by Governmental Agency or Federally
Chartered Lending Institutions
.................................................................................44
Article 12 GENERAL PROVISIONS
12.1Enforcement......................................................................................................
12.2 Interpretation
45
12.3 Severability
45
......,•,,,•.••...•.......
12.4 Perpetuities
45
............
12.5 Change of Circumstances
45
.................................................................................
12.6 Association Rules
................
12.7 L .............. ati
Laws, Ordinances and Regulations
45
45
12.8 References to this Declaration in Deeds
45
12.9 Gender and Number
.......
46
..........................................
12.10 Captions and ��•��������'•"
P Title; Section References
12.11 Notices ,Exhibit.
•46
................46
Board
12.12 B..........................................................................................46
Member Indemnification ..................•
12.13 Owner Indemnification
...................................................................................
12.14 No Partition
47
12.15 Number of Days
47
.............................................................................................
12.16 Notice of Violation
48
12.17 Disclaimer of Representations
.48
""""""•••••••••••••••••••...48
12.18 Amend
Amendments Affecting
Declarant Rights
12.19 Con
Conflicts
49
........................................................49
....... ................
12.20 Authority•���'�•�•"""'
to Enter into Public............................... .....
or Private Bulk ��•���"""' •••••49
Contracts......................Service Agreements
EXHIBIT Community
an
Legal Description....................................................................5
49
3
8/30/07 DRAFT 58