HomeMy WebLinkAboutPZ - Master Declaration ELECTRONICALLY RECORDED DO NOT
REMOVE THE COUNTY STAMPED FIRST
PAGE AS IT IS NOW INCORPORATED AS ADA COUNTY RECORDER Trent Tripple 2023.062301
PART OF THE ORIGINAL DOCUMENT. BOISE IDAHO Pgs=49 CHE FOWLER 11/02/2023 01:33 PM
BRIGHTON CORPORTATION $154.00
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Ten Mile Crossing Inc.
c/o Brighton Corporation
2929 W.Navigator Drive,Ste.400
Meridian,Idaho 83642
ABOVE SPACE LINE FOR RECORDER'S USE
AMENDED AND RESTATED MASTER DECLARATION
OF
COVENANTS,CONDITIONS AND RESTRICTIONS
AND
RECIPROCAL EASEMENT AGREEMENT
FOR
ELECTRONICALLY RECORDED DO NOT
REMOVE THE COUNTY STAMPED FIRST
PAGE AS IT IS NOW INCORPORATED AS
RECORDING REQUESTED BY PART OF THE ORIGINAL DOCUMENT
AND WHEN RECORDED MAIL TO:
Ten Mile Crossing Inc.
c/o Brighton Corporation
2929 W.Navigator Drive,Ste.400
Meridian,Idaho 83642
ABOVE SPACE LINE FOR RECORDER'S USE
AMENDED AND RESTATED MASTER DECLARATION
OF
COVENANTS,CONDITIONS AND RESTRICTIONS
AND
RECIPROCAL EASEMENT AGREEMENT
FOR
y.
TEN K1 ILE
C R E E K
TABLE OF CONTENTS
ARTICLE1 DEFINITIONS......................................................................................................................................... 2
1.1 APPROVED PLANS............................................................................................................................................2
1.2 ADDITIONAL PROPERTY....................................................................................................................................2
1.3 ASSOCIATION..................................................................................................................................................2
1.1 BOARD..........................................................................................................................................................2
1.2 BUILDING.......................................................................................................................................................2
1.3 BUILDING AREA..............................................................................................................................................2
1.1 BYLAWS.........................................................................................................................................................2
1.2 CLAIMS.........................................................................................................................................................2
1.3 COMMON AREA..............................................................................................................................................2
1.4 CONSTANT DOLLARS........................................................................................................................................2
1.5 DECLARANT....................................................................................................................................................3
1.6 DECLARATION.................................................................................................................................................3
1.7 DEFAULT INTEREST RATE...................................................................................................................................3
1.8 FLOOR AREA..................................................................................................................................................3
1.9 GOVERNMENTAL REQUIREMENTS.......................................................................................................................3
1.10 IMPROVEMENTS..............................................................................................................................................3
1.11 MORTGAGE....................................................................................................................................................3
1.12 MORTGAGEE..................................................................................................................................................3
1.13 OCCUPANT.....................................................................................................................................................3
1.14 OUTDOOR SEATING AREA.................................................................................................................................3
1.15 OPERATOR.....................................................................................................................................................3
1.16 OWNER.........................................................................................................................................................3
1.17 PARCEL OR PARCELS.........................................................................................................................................4
1.18 PARCEL COMMON AREA...................................................................................................................................4
1.19 PARCEL MAINTENANCE EXPENSES......................................................................................................................4
1.20 PERMANENT DRIVES........................................................................................................................................4
1.21 PERMITTEES...................................................................................................................................................4
1.22 PERSON OR PERSONS.......................................................................................................................................4
1.23 PRIME LEASE..................................................................................................................................................4
1.24 PRIME LESSEE.................................................................................................................................................4
1.25 PROJECT COMMON AREA.................................................................................................................................4
1.26 PROJECT COMMON AREA EXPENSES. ..................................................................................................................5
1.27 PROJECT DESIGN STANDARDS............................................................................................................................5
1.28 PROJECT DOCUMENTS......................................................................................................................................5
1.29 PROJECT EXPENSES..........................................................................................................................................5
1.30 PROJECT LANDSCAPE AREA...............................................................................................................................5
1.31 PROJECT LIGHTING..........................................................................................................................................5
1.32 P ROJ ECT 0 BJ ECTIV ES........................................................................................................................................5
1.33 PROJECTSIGN'S).............................................................................................................................................5
1.34 PROJECT UTILITY LINES.....................................................................................................................................5
1.35 RESTAURANT..................................................................................................................................................5
1.36 SECTION.................................................................................................................................... ........6
1.37 SERVICE FACILITIES..........................................................................................................................................6
1.38 SIGNAGE CRITERIA...........................................................................................................................................6
1.39 SITE PLAN......................................................................................................................................................6
1.40 SUPPLEMENTAL DECLARATION...........................................................................................................................6
1.40.1 Supplemental Declaration-Section Property..................................................................................6
1.40.2 Supplemental Declaration-Annexation/De-Annexation.................................................................6
1.41 UTILITY LINES.................................................................................................................................................6
TABLE OF CONTENTS-I
1.42 WATER RIGHTS...............................................................................................................................................6
ARTICLE 2 EASEMENTS..........................................................................................................................................7
2.1 EASEMENTS....................................................................................................................................................7
2.1.1 Permanent Drives..................................................................................................................................7
2.1.2 Ingress and Egress.................................................................................................................................7
2.1.3 Pedestrian Access..................................................................................................................................7
2.1.4 Parking...................................................................................................................................................7
2.1.5 Utilities...................................................................................................................................................7
2.1.6 Drainage................................................................................................................................................8
2.1.7 Maintenance..........................................................................................................................................8
2.1.8 Encroachment Easements.....................................................................................................................8
2.1.9 Signage..................................................................................................................................................8
2.2 EASEMENT IN FAVOR OF THE OPERATOR..............................................................................................................8
2.3 EASEMENTS FOR COMMON AREA.......................................................................................................................8
2.4 SCOPE OF EASEMENTS;NO REQUIREMENT OF CONFIRMATION ................................................................................8
2.5 NO OBSTRUCTIONS..........................................................................................................................................8
2.6 NO CHARGE FOR USE.......................................................................................................................................9
2.7 PROHIBITION AGAINST GRANTING EASEMENTS.....................................................................................................9
2.8 UNDERGROUND UTILITIES.................................................................................................................................9
ARTICLE 3 DEVELOPMENT RESTRICTIONS,ARCHITECTURAL AND SITE PLAN APPROVALS AND CONSTRUCTION...9
3.1 DEVELOPMENT RESTRICTIONS............................................................................................................................9
3.2 MAXIMUM SQUARE FOOTAGE OF BUILDINGS AND HEIGHT RESTRICTIONS..................................................................9
3.3 LIGHTING.....................................................................................................................................................10
3.4 SELF-PARK............................................................................................................... ................10
....................
3.5 OUTDOOR SEATING AREAS..............................................................................................................................10
3.6 GRADING AND DRAINAGE...............................................................................................................................10
3.7 APPROVAL OF IMPROVEMENTS........................................................................................................................10
3.7.1 Submission of Materials......................................................................................................................11
3.7.2 Procedure for Approval........................................................................................................................11
3.7.3 Construction of Improvements............................................................................................................12
3.7.4 Effect of Review...................................................................................................................................12
3.7.5 Inspection and Violations....................................................................................................................12
3.8 IMPROVEMENTS............................................................................................................................................12
3.9 COMMUNICATIONS EQUIPMENT.......................................................................................................................12
3.10 CONSTRUCTION OF PARCEL COMMON AREA......................................................................................................12
3.11 INTERFERENCE BY CONSTRUCTION....................................................................................................................12
3.12 CONSTRUCTION INDEMNITIES..........................................................................................................................13
3.13 COST OF CONSTRUCTION................................................................................................................................13
3.14 SIGNS..........................................................................................................................................................13
3.14.1 Parcel Sign.......................................................................................................................................13
3.14.2 Submission of Signage Plans...........................................................................................................13
3.14.3 Procedure for Approval...................................................................................................................13
3.14.4 Signage Restrictions........................................................................................................................13
3.14.5 Sign Maintenance...........................................................................................................................13
ARTICLE4 USE RESTRICTIONS...............................................................................................................................14
4.1 USE IN GENERAL...........................................................................................................................................14
4.2 PROHIBITED USES..........................................................................................................................................14
4.3 ADDITIONAL USE RESTRICTIONS.......................................................................................................................14
4.4 USE OF COMMON AREAS................................................................................................................................16
4.5 USE OF SIDEWALKS,PARKING AREAS................................................................................................................16
TABLE OF CONTENTS-II
4.5.1...................................................................................................................................................................16
4.5.2...................................................................................................................................................................16
4.5.3...................................................................................................................................................................17
4.6 EMPLOYEE,CONTRACTOR PARKING..................................................................................................................17
ARTICLE 5 TM CREEK OWNERS ASSOCIATION INC....................................................................................................17
5.1 ORGANIZATION OF THE ASSOCIATION..................................................................................................................17
5.2 MEMBERS....................................................................................................................................................17
5.3 VOTING.......................................................................................................................................................17
5.4 BOARD OF DIRECTORS AND OFFICERS..................................................................................................................18
5.5 POWERS OF THE ASSOCIATION.........................................................................................................................18
5.5.1 Assessments..........................................................................................................................................18
5.5.2 Right of Enforcement.
5.5.3 Delegation of Powers............................................................................................................................18
5.5.4 Liability of Board Members and Officers................................................................................................18
5.5.5 Association Rules...................................................................................................................................18
5.5.6 Emergency Power.................................................................................................................................19
5.5.7 Licenses,Easements and Rights of Way.................................................................................................19
5.5.8 Fiscal Year.............................................................................................................................................19
5.5.9 Miscellaneous Services..........................................................................................................................19
5.6 DUTIES OF ASSOCIATION..................................................................................................................................19
5.6.1 Taxes and Assessments.........................................................................................................................19
5.6.2 Utilities. ................................................................................................................................................19
5.6.3 Insurance..............................................................................................................................................20
5.6.4 Identification Signs................................................................................................................................20
5.7 OPERATION AND MAINTENANCE OF COMMON AREAS.............................................................................................21
5.8 BUDGETS AND FINANCIAL REPORTS.....................................................................................................................21
5.8.1....................................................................................................................................................................21
5.8.2....................................................................................................................................................................21
5.9 EFFECTIVE DATE............................................................................................................................................21
ARTICLE6 ASSESSMENTS.......................................................................................................................................22
6.1 COVENANTTO PAY ASSESSMENTS.......................................................................................................................22
6.2 REGULAR ASSESSMENTS...................................................................................................................................22
6.3 SPECIAL ASSESSMENTS.....................................................................................................................................22
6.3.1....................................................................................................................................................................22
6.3.2....................................................................................................................................................................22
6.3.3....................................................................................................................................................................22
6.4 LIMITEDASSESSMENTS. ...................................................................................................................................22
6.4.1 Maintenance and Repair.......................................................................................................................22
6.4.2 Correction of Violations.........................................................................................................................23
6.4.3 Limited Purpose....................................................................................................................................23
6.5 COMMENCEMENTOF REGULAR ASSESSMENTS.......................................................................................................23
6.6 UNIFORM RATE OF ASSESSMENT........................................................................................................................23
6.7 INTERESTAND PENALTIES..................................................................................................................................23
ARTICLE 7 MAINTENANCE OF IMPROVEMENTS....................................................................................................23
7.1 MAINTENANCE OF BUILDING BY OWNERS..........................................................................................................23
7.2 OWNER'S MAINTENANCE OBLIGATIONS FOR PARCEL COMMON AREA.....................................................................23
7.3 MAINTENANCE STANDARDS............................................................................................................................24
7.4 MAINTENANCE BY OPERATOR..........................................................................................................................24
7.5 RIGHTTO PERFORM PARCEL COMMON AREA MAINTENANCE SEPARATELY...............................................................24
7.5.1 Self-Maintenance Election...................................................................................................................24
TABLE OF CONTENTS-III
7.5.2 Indemnity..................................................................................................................................
7.6 OPERATOR...................................................................................................................................................25
7.6.1 Operator..............................................................................................................................................25
7.6.2 Successor Operator..............................................................................................................................25
7.6.3 No Operator.........................................................................................................................................25
7.6.4 Affiliates...............................................................................................................................................25
7.6.5 Limitation of Liability...........................................................................................................................25
7.7 TAXES.........................................................................................................................................................25
ARTICLE 8 ENFORCEMENT OF ASSESSMENTS........................................................................................................26
8.1 RIGHT TO ENFORCE........................................................................................................................................26
8.2 CREATION OF ASSESSMENT LIENS. ......................................................................................................................26
8.3 ENFORCEMENT..............................................................................................................................................26
8.4 NOTICE REQUIRED..........................................................................................................................................26
8.5 NON-EXCLUSIVE REMEDY.................................................................................................................................26
8.6 WATER RIGHTS APPURTENANT TO PROJECT LANDS..............................................................................................26
ARTICLE9 INSURANCE..........................................................................................................................................27
9.1 OWNER'S LIABILITY INSURANCE.......................................................................................................................27
9.2 PROPERTY INSURANCE....................................................................................................................................27
9.3 GENERAL REQUIREMENTS...............................................................................................................................27
9.4 SELF-INSURANCE...........................................................................................................................................28
9.5 BLANKETAND EXCESS INSURANCE....................................................................................................................28
9.6 RELEASE......................................................................................................................................................28
9.7 INDEMNIFICATION.........................................................................................................................................28
ARTICLE10 DAMAGE............................................................................................................................................29
10.1 RESTORATION OF COMMON AREA...................................................................................................................29
10.2 RESTORATION OF BUILDING(S).........................................................................................................................29
10.3 CLEARING OF PREMISES..................................................................................................................................29
ARTICLE11 REMEDIES..........................................................................................................................................29
11.1 LEGALACTION GENERALLY..............................................................................................................................29
11.2 INJUNCTIVE AND DECLARATORY RELIEF..............................................................................................................29
11.3 OWNER'S RIGHT TO CURE OR ABATE................................................................................................................30
11.4 CERTAIN LIMITATIONS ON REMEDIES.................................................................................................................30
11.5 LIEN............................................................................................................................................................30
11.5.1 Creation..........................................................................................................................................30
11.5.2 Amount...........................................................................................................................................31
11.5.3 Priority............................................................................................................................................31
11.5.4 Extinguishment...............................................................................................................................31
11.5.5 Foreclosure......................................................................................................................................31
11.6 OBLIGATION.................................................................................................................................................31
11.7 REMEDIES CUMULATIVE.................................................................................................................................31
11.8 ATTORNEYS'FEES..........................................................................................................................................31
ARTICLE 12 SUPPLEMENTAL DECLARATIONS AND AMENDMENTS........................................................................31
12.1 SUPPLEMENTAL DECLARATION.........................................................................................................................31
12.2 MASTER DECLARATION...................................................................................................................................32
ARTICLE13 MISCELLANEOUS................................................................................................................................32
13.1 AMENDMENTS..............................................................................................................................................32
13.2 CONSENT BY OPERATOR.................................................................................................................................32
TABLE OF CONTENTS-IV
13.3 CONSENT BY OWNERS....................................................................................................................................32
13.4 NOTICES......................................................................................................................................................33
13.5 TERMINATION OF DECLARANT RIGHTS...............................................................................................................33
13.6 BINDING EFFECT...........................................................................................................................................33
13.7 WAIVER OF DEFAULT.....................................................................................................................................33
13.8 BREACH-EFFECT ON MORTGAGEE AND RIGHT TO CURE......................................................................................33
13.9 NO PARTNERSHIP..........................................................................................................................................34
13.10 SEVERABILITY................................................................................................................................................34
13.11 GOVERNING LAW..........................................................................................................................................34
13.12 TERMINOLOGY..............................................................................................................................................34
13.13 CAPTIONS....................................................................................................................................................34
13.14 ESTOPPEL CERTIFICATE...................................................................................................................................34
13.15 NOT A PUBLIC DEDICATION.............................................................................................................................35
13.16 TIME OF ESSENCE..........................................................................................................................................35
13.17 ENTIRE DECLARATION....................................................................................................................................35
13.18 EXCUSE FOR NON-PERFORMANCE....................................................................................................................35
13.19 MECHANICS'LIENS........................................................................................................................................35
13.20 DURATION...................................................................................................................................................36
TABLE OF CONTENTS-V
AMENDED AND RESTATED MASTER DECLARATION
OF COVENANTS,CONDITIONS AND RESTRICTIONS
AND RECIPROCAL EASEMENT AGREEMENT FOR
TEN MILE CREEK
This Amended and Restated Master Declaration of Covenants, Conditions and Restrictions and
Reciprocal Easement Agreement for (the "Declaration") is made and entered into by Ten Mile Crossing,
Inc., an Idaho corporation ("Declarant") as of this 2nd day of November, 2023,with reference to the facts
set forth below.
RECITALS
Capitalized terms used in the Recitals are defined in Article 1 below.
A. Declarant is the Owner of that certain real property located in the City of Meridian,
County of Ada, State of Idaho, consisting of the real property more particularly described on Exhibit A
attached hereto and incorporated herein ("Project").
B. Declarant desires to (i) create certain easements for ingress, egress, utilities and other
matters, for the benefit of each of the Parcels in the Project; (ii) impose obligations with respect to the
common use, maintenance and repair of the Common Area; and (iii) impose certain limitations on the
design and use of the Parcels and the improvements to be constructed thereon by the Owners, all as is
more particularly set forth herein,for the purpose of enhancing and protecting the value, desirability and
attractiveness of the Project for the benefit of the Declarant and each Owner.
C. Declarant desires to amend and restate the Declaration to incorporate a owners
association to act as the Operator once the Declarant resigns or is replaced as provided herein.
NOW,THEREFORE,Declarant does hereby establish and declare that the Project and every portion
thereof shall be owned, held, conveyed, transferred, divided, sold, leased, rented, encumbered,
developed, improved, maintained, repaired, occupied and used subject to the covenants, conditions,
restrictions,easements, rights,rights-of-way, liens,charges and other protective and beneficial provisions
set forth in this Declaration, all of which (i)are declared and agreed to be in furtherance of a general plan
for the protection, preservation, maintenance, platting, subdivision, improvement and sale of the Project
and to enhance the value,desirability and attractiveness of the Project as an integrated,first class,master
planned mixed use project consisting of high quality retail,office,retail services,medical services,financial
institutions, entertainment and/or residential (multi-family and/or single family) components, (ii) are
mutual, beneficial and equitable servitudes in favor of and for the mutual use and benefit of the Project
and each portion thereof and each Owner of a Parcel,and(iii) are hereby expressly declared to be binding
upon the Parcels and each portion thereof and shall run with the land and each and every part thereof,
inure to the benefit of and be a burden upon the Parcels and each portion thereof and shall bind the
respective heirs, successors and assigns of the Owners of the Parcels. Upon recordation of this
Declaration, any conveyance, transfer, sale, hypothecation, assignment, lease or sublease made by any
Owner, shall be and hereby is deemed to incorporate by reference the provisions of this Declaration, as
the same may from time to time be amended. In the event of any conflict between this Declaration and
any other Project Document, this Declaration shall control, provided, however, that a Supplemental
Declaration may impose additional covenants, restrictions and obligations on the Section Property
covered by such Supplemental Declaration and in such event,the terms of the Supplemental Declaration
shall control.
MASTER DECLARATION—1
ARTICLE 1
DEFINITIONS
1.1 Approved Plans. The term "Approved Plans" means the Submittal Plans approved or
conditionally approved (or deemed approved) by the Operator for the Improvements to be constructed
on a Parcel, as provided in Article 3 below.
1.2 Additional Property. The term "Additional Property" means property located adjacent
to or in the vicinity of the Project which may be annexed into the Project by Declarant from time to time.
1.3 Association. The term"Association"refers to TM Creek Owners Association Inc.,an Idaho
non-profit corporation.
1.1 Board. The term "Board" shall mean the duly elected and qualified Board of Directors of
the Association.
1.2 Buildine. The term "Building" means any permanently enclosed structure placed,
constructed or located on a Parcel.
1.3 Buildinp, Area. The term "Building Area" means any area on a Parcel designated as
"Building Area", whether or not described, labeled or depicted on the Site Plan for and within which
Building(s) may be constructed, placed or located.
1.1 Bylaws. The term "Bylaws" means the Bylaws of the Association, including any
amendments thereto duly adopted.
1.2 Claims. The term "Claims" means all causes of action,claims, liabilities, losses, damages,
costs and expenses(including reasonable attorneys'fees and court costs).
1.3 Common Area. The term "Common Area" means the Project Common Area and the
Parcel Common Area, collectively.
1.4 Constant Dollars. The term"Constant Dollars"means the value of the U.S.dollar to which
such phrase refers,as adjusted from time to time. An adjustment shall occur on the 1st day of June of the
sixth (6th) full calendar year following the date of recordation of this Declaration, and thereafter at five
(5)year intervals. Constant Dollars shall be determined by multiplying the dollar amount to be adjusted
by a fraction, the numerator of which is the Current Index Number and the denominator of which is the
Base Index Number. The"Base Index Number"shall be the level of the Index for the year this Declaration
commences; the "Current Index Number" shall be the level of the Index for the year preceding the
adjustment year; the "Index" shall be the Consumer Price Index for All Urban Consumers, published by
the Bureau of Labor Statistics of the United States Department of Labor for U.S. City Average, All Items
(1982-84=100), or any successor index thereto as hereinafter provided. If publication of the Index is
discontinued, or if the basis of calculating the Index is materially changed, then the Operator shall
substitute for the Index comparable statistics as computed by an agency of the United States Government
or, if none, by a substantial and responsible periodical or publication of recognized authority most closely
approximating the result which would have been achieved by the Index.
MASTER DECLARATION—2
1.5 Declarant. The term "Declarant" refers to Ten Mile Crossing, Inc., an Idaho corporation
and its successors and assigns to the extent Declarant's rights under this Declaration are expressly granted
to such successors and assigns as evidenced by a recorded instrument.
1.6 Declaration. The term "Declaration" means this Master Declaration of Covenants,
Conditions, Easements and Restrictions, as it may from time to time be amended or supplemented from
time to time and any Supplemental Declaration(s), as the same may from time to time be amended.
1.7 Default Interest Rate. The term "Default Interest Rate" means the lesser of: (i)four
percent (4%) per annum in excess of the "Prime Rate", or (ii)the highest lawful rate. The "Prime Rate"
shall be the rate announced as such from time to time by Bank of America or its successor, or any
alternative national bank doing business in the State of Idaho designated by Declarant from time to time.
If there shall be no such announced rate of such bank or its successor,then the "Prime Rate"shall be such
equivalent rate as is charged from time to time by major money-center banks.
1.8 Floor Area. The term "Floor Area" means the total number of square feet of floor area
contained within a Building. Floor Area will be measured from the exterior line of the exterior walls of
such Building.
1.9 Governmental Requirements. The term "Governmental Requirements" means all
applicable laws, rules, regulations, orders, ordinances, restrictions and other requirements (including all
requirements to have or to obtain permits)of any governmental agency or body with jurisdiction over any
portion of Project.
1.10 Improvements. The term "Improvements" means any Building, Service Facilities,
Common Area improvements or sign,including but not limited to, Parcel Sign(s)and Project Sign(s)located
in the Project.
1.11 Mortgage. The term "Mortgage" means any mortgage or deed of trust encumbering a
Parcel.
1.12 Mortgagee. The term "Mortgagee" means a mortgagee under a mortgage, a grantee
under a deed to secure debt, or a trustee or beneficiary under a deed of trust constituting a lien on any
Parcel.
1.13 Occupant. The term "Occupant" means any Owner, Prime Lessee or Person from time to
time entitled to the use and occupancy of any portion of a Building in the Project under an ownership
right or any lease, sublease, assignment, license,concession or similar occupancy agreement.
1.14 Outdoor Seatinp, Area. The term "Outdoor Seating Areas" means areas located directly
adjacent to or in close proximity to a Building which are used, from time to time, for Outdoor Seating
Areas by the Occupant of such Building.
1.15 Operator. The term"Operator"initially means Declarant. The Operator shall be replaced
as provided in Article 6 of this Declaration.
1.16 Owner. The term "Owner" means the record holder of fee simple title to a Parcel (or any
portion thereof), its heirs, personal representatives, successors and assigns. If a Parcel is owned by
multiple parties ("Multiple Owners"), the Multiple Owners shall designate in writing one of the Multiple
MASTER DECLARATION—3
Owners ("Designated Owner") with the sole right to act for and bind all of the Multiple Owners of such
Parcel, and the other Owners may rely on any consent, approval or decision made by the Designated
Owner on behalf of the Multiple Owners.
1.17 Parcel or Parcels. The term "Parcel" or "Parcels" means that portion of the Project and
any Additional Property annexed into the Project which is from time to time (i) subdivided as a legal lot
pursuant to a recorded subdivision plat or plats or otherwise legally created for separate use and/or
ownership, or(ii) designated as Parcel by recordation of a Supplemental Declaration.
1.18 Parcel Common Area. The term"Parcel Common Area" means all areas on a Parcel which
is not covered by a Building, Service Facilities or Project Common Area. The Parcel Common Area shall
include the "Back of Curb Area" defined in Section 7.2, but maintenance, repair and maintenance of the
"Back of Curb Area" shall be the Owner's responsibility as more specifically described in Section 7.2.
1.19 Parcel Maintenance Expenses. The term "Parcel Maintenance Expenses" means all
reasonable costs and expenses of every nature and kind as may actually be paid or incurred by Operator
to operate, maintain, and repair the Parcel Common Area. Any replacement shall be at the sole cost of
the Owner.
1.20 Permanent Drives. The term "Permanent Drives" means those certain access ways
(including the curb cuts for such access ways) shown on the Site Plan as "Permanent Drive(s)" and such
additional Permanent Drives which are from time to time designated as a Permanent Drive by the
Operator by recordation of an amendment to this Declaration or a Supplemental Declaration.
1.21 Permittees. The term "Permittees" means the Operator, Owners and Occupants and
their respective officers,directors,employees,agents,contractors,customers,visitors, invitees, licensees
and concessionaires, provided, however,that persons engaged in civic, public or political activities within
Project shall not be considered Permittees.
1.22 Person or Persons. The term "Person" or "Persons" means and includes individuals,
partnerships,firms, associations,joint ventures, corporations, or any other form of business entity.
1.23 Prime Lease. The term "Prime Lease" means a written lease between an Owner of a
Parcel, as landlord, and the Prime Lessee of such Parcel,as tenant, for an entire Parcel.
1.24 Prime Lessee. The term "Prime Lessee" means the Occupant of an entire Parcel under a
Prime Lease. During the term of the Prime Lease, the Prime Lessee shall have all rights, obligations and
responsibilities of an "Owner" of such Parcel under this Declaration provided (i) the Owner, as landlord
under the Prime Lease, delegates such obligations and responsibilities to the Prime Lessee, (ii)the Prime
Lessee assumes such obligations and responsibilities, and (iii) written notice thereof is provided to the
Operator. Notwithstanding the foregoing,the Owner of such Parcel shall not be relieved or released from
its obligations under this Declaration.
1.25 Project Common Area. The term "Project Common Area" refers collectively to the
Common Area which, in the Operator's discretion, cannot be considered a Parcel Common Area. The
"Project Common Area" may include, but shall not be limited to, Permanent Drives, Project Landscape
Area, Project Lighting, Project Sign(s), Project Utility Lines and such other areas which are designated as
Project Common Area from time to time by the Operator.
MASTER DECLARATION-4
1.26 Project Common Area Expenses. The term "Project Common Area Expenses" means all
reasonable costs and expenses of every nature and kind as may actually be paid or incurred by Operator
to operate, maintain, repair and replace the Project Common Area.
1.27 Proiect Design Standards. The term "Project Design Standards" means the Design
Standards for the Project as determined by the Declarant in its sole discretion from time to time.
1.28 Proiect Documents. The term "Project Documents" means this Declaration, any
Supplemental Declaration(s), Articles of Organization and Bylaws of the Association, the Plat, Project
Design Standards and Signage Criteria, all as may be amended or supplemented from time to time.
1.29 Proiect Expenses. The term "Project Expenses" means all reasonable costs and expenses
of every nature and kind as may be actually paid or incurred by Operator to operate, maintain, repair and
replace the Project Common Area and operate, maintain and repair the Parcel Common Area. Any
replacement within the Parcel Common Area shall be at Owner's sole expense.
1.30 Proiect Landscape Area. The term "Project Landscape Area" means those certain
landscape areas shown on the Site Plan as "Project Landscape Area" and such additional landscape areas
which are from time to time designated as Project Landscape Area by the Operator. The Project
Landscape Area may include, but shall not be limited to, landscaping along the perimeter boundary of the
Project, landscaping adjacent to the Permanent Drives,outdoor courtyards and/or plazas for the common
use of the Project.
1.31 Proiect Lighting. The term "Project Lighting" means the artificial lighting facilities,
including but not limited to poles, pole bases, wiring, lamps, ballasts, lenses, photocells, time clocks and
contacts, for the common use of the Project, as designated by the Operator from time to time.
1.32 Project Obiectives. The design, development, improvement and use of the Project as an
integrated, first class, master planned mixed use project consisting of high quality retail, office, retail
services, medical services, financial institutions, entertainment and/or residential (multi-family and/or
single family)components.
1.33 Proiect Sign(s). The term"Project Signs"means certain freestanding signs, including, but
not limited to, pylon and/or Project identification signs, and related improvements, elected to be
constructed by Declarant in its sole discretion "Project Sign", whether or not described, labeled or
depicted on the Site Plan. Placement on any Project Sign for an Owner or Prime Lessee is determined by
the Operator in its sole discretion. Notwithstanding Section 7.1, with respect to any Project Sign(s)with
multiple panels, including, but not limited to, pylon signs, each Owner located on such Project Sign shall
pay its proportionate share of the construction, replacement,maintenance and repair of such Project Sign
based on the area of its panel as the numerator, with the area of all occupied sign panels on such Project
Sign as the denominator.
1.34 Proiect Utility Lines. The term "Project Utility Lines" means any Utility Lines from time to
time serving the Project Common Area.
1.35 Restaurant. The term "Restaurant" shall mean any operation or business which requires
a governmental permit, license and/or authorization to prepare and/or serve food for either on-site or
off-site consumption; provided, however, notwithstanding anything herein to the contrary, a
supermarket,grocery store or similar operation shall not be deemed a Restaurant.
MASTER DECLARATION—5
1.36 Section. The term "Section" shall mean one or more Parcels within the Project which are
from time to time designated as a "Section" by the recordation of a Supplemental Declaration.
1.37 Service Facilities. The term "Service Facilities" means trash compactors and enclosures,
exterior lighting attached to a Building, drive-up or drive-through customer service facilities directly
adjacent or in close proximity to a Building, side yards and rear yards used for outdoor storage, loading
docks, electrical facilities and transformers, truck ramps and other similar exclusive service facilities and
outward extensions, and customer pickup areas directly adjacent to or in close proximity to a Building,
whether or not described, labeled or depicted on the Site Plan. The Service Facilities are the exclusive
property of the Owner of the Parcel on which such Service Facilities are located and not a part of the
Common Area.
1.38 Sigma a Criteria. The term "Signage Criteria" means the signage criteria for the free-
standing and exterior building signs constructed or located within the Project, as determined by the
Declarant in its sole discretion, from time to time including, but not limited to, the Signage Criteria
attached hereto as Exhibit C.
1.39 Site Plan. The term "Site Plan" initially means the Site Plan attached hereto as Exhibit B.
as it may be supplemented, modified or amended by recordation of an amendment to this Declaration or
a Supplemental Declaration in accordance with the provisions of this Declaration from time to time.
1.40 Supplemental Declaration. The term "Supplemental Declaration" means the following,
collectively or individually: Supplemental Declaration — Section Property, and/or Supplemental
Declaration—Annexation/De-Annexation.
1.40.1 Supplemental Declaration — Section Property. The term "Supplemental
Declaration —Section Property" means a Supplemental Declaration executed and recorded
by Declarant prior to the conveyance of any Parcel within such Section to do any of the
following: (i) designate certain Parcels as a "Section", (ii)attach the Site Plan for each Parcel
in such Section, and (iii) impose additional or modified restrictions, covenants or obligations
applicable to such Section,as permitted pursuant to this Declaration.
1.40.2 Supplemental Declaration — Annexation/De-Annexation. The term
"Supplemental Declaration — Annexation/De-annexation" means a Supplemental
Declaration executed and recorded by Declarant to (i) annex any Additional Property to this
Declaration, or (ii) de-annex any portion of the Project from this Declaration, as permitted
pursuant to Article 10 of this Declaration.
1.41 Utility Lines. The term "Utility Lines" means those facilities and systems for the
transmission of utility services, including but not limited to Project Utility Lines, storm water drainage,
detention or retention systems or structures, water mains, sewers, lift stations, irrigation facilities
including, but not limited to, sprinkler lines and related connections, electrical conduits or systems, gas
mains,other public or private utilities providing service to one or more the Parcels in common.
1.42 Water Rights. The term "Water Rights" means any and all water and water rights,
including, but not limited to,groundwater and groundwater rights,ditch and ditch rights,and storage and
storage rights appurtenant to the Project,including, but not limited to State of Idaho Department of Water
Resources Permit No. 63-34032.
MASTER DECLARATION—6
ARTICLE 2
EASEMENTS
2.1 Easements. Declarant hereby reserves unto Declarant and Operator and also grants to
the Owners,for the reciprocal benefit of the Owners of each of the Parcels,and the use of the Permittees
of such Owner, the following easements into, over, and across the Project, subject to any rights and
restrictions set forth in this Declaration. The easements granted hereunder shall continue in effect for
the term of this Declaration and thereafter for so long as the Parcel utilizing the easement area exists
(including a reasonable period to permit reconstruction or replacement of such improvement if the same
shall be destroyed, damaged or demolished).
2.1.1 Permanent Drives. Non-exclusive perpetual easements for ingress and egress
over and across those portions the Common Area designated as Permanent Drive(s) on the Site Plan,and
such additional Permanent Drives as may be designated from time to time by recordation of a
Supplemental Declaration. The Permanent Drives may also be used by emergency services personnel.
Once designated as a Permanent Drive, the location of the Permanent Drives shall not be altered,
relocated, changed or closed without the prior written consent of the Operator.
2.1.2 Ingress and Egress. Non-exclusive easements over and across those portions of
the Common Area which are from time to time improved as drive aisles or access ways for vehicular and
pedestrian ingress and egress between each Parcel, the Permanent Drive(s), and public streets abutting
the Project.
2.1.3 Pedestrian Access. Non-exclusive easements over and across the those portions
of the Common Area which are from time to time improved as sidewalks,walkways or similar pedestrian
access ways within the Project.
2.1.4 Parking. Non-exclusive easements over and across the those portions of the
Common Area which are from time to time improved for vehicular parking on each Parcel.
2.1.5 Utilities. Non-exclusive easements into, over, under and across the Common
Area for the installation, construction, maintenance, operation, repair and replacement of Utility Lines.
The exact location or re-location of any Utility Lines shall be subject to the approval of the Operator and
the Owner of the burdened Parcel. The Owner performing such installation, construction, maintenance,
operation, repair or replacement of a Utility Line ("Utility Line Work") located on the Parcel of another
Owner shall, at its sole cost and expense, (i) make adequate provision for the safety and convenience of
all persons using the surface of such area; (ii) replace or restore the areas and facilities to the conditions
in which they were in prior to the performance of the Utility Line Work, (iii) bear all costs, fees and
expenses incurred as a result of such Utility Line Work; (iv) at least thirty (30) days prior to performing
such Utility Line Work provide the Owner affected by such Utility line Work and the Operator with a
written statement describing the need for such Utility Line Work, identify the proposed location of the
Utility Line Work,the nature of the Utility Line Work to be performed (including backup materials such as
design and materials), evidence that the materials and design standards are equal to or exceed those
originally used, and the anticipated commencement and completion dates for the Utility Line Work; (v)
provide written evidence of the insurance coverage required by Article 7 of this Declaration, and (vi) use
commercially reasonable efforts to minimize disruption of normal business operations and access to the
Project. In no event shall Utility Line Work occur on weekends, during holiday seasons or other peak
periods or times of business operations.
MASTER DECLARATION—7
2.1.6 Drainage. Non-exclusive, perpetual easement for the discharge of surface storm
water drainage and/or runoff from the grantee's Parcel over, upon and across the Common Area of the
an adjoining Parcel, upon the following conditions and terms: (i) the grades and surface water
drainage/retention system for the Project shall remain in strict conformance with the Approved Plans for
the grantee's Parcel, and (ii) no Owner shall alter or permit to be altered the surface of the Common Area
or the drainage/retention system constructed on its Parcel if such alteration is not in conformance with
the Approved Plans or would materially increase the flow of surface water onto the adjacent Parcel either
in the aggregate or by directing the flow of surface water to a limited area. All surface water collection,
retention and distribution facilities shall be deemed a Utility Line. All drains,gutters,downspouts, berms,
swells and other drainage facilities and systems(collectively, "Drainage Systems") shall be maintained by
each Owner,with respect to the portion of the Drainage System located on such Owner's Parcel,in a neat,
orderly, safe and sanitary condition, and in such a manner as to facilitate the orderly discharge of water
by means thereof.
2.1.7 Maintenance. Non-exclusive easement for ingress and egress, construction,
inspection, operation, maintenance, repair and replacement as may be reasonably necessary for the
purpose of permitting the Declarant or Operator to discharge its obligations and rights under this
Declaration and the Bylaws.
2.1.8 Encroachment Easements. Non-exclusive easement over, across and under the
adjoining Parcel(s)for any portion of a Building located on a Parcel which may inadvertently encroach into
or over the adjoining Parcel(s); provided the easement for footings, piers, piles,grade beams and Building
encroachments does not exceed two (2) feet, and the easement for canopies, eaves and roof overhangs
does not exceed four (4) feet. The easements created in this Section shall survive the expiration or
termination of this Declaration and shall last so long as the encroaching Building is standing following
initial construction or following reconstruction where such Building is substantially restored to its prior
condition following a casualty or condemnation.
2.1.9 Sienage. Non-exclusive easements to place,construct or locate, maintain, repair
and replace Project Signs and/or Parcel Signs as permitted in this Declaration,and/or to provide the same
for an Owner of a Parcel Sign that may request locating its sign on Parcels owned by additional Owners in
the Project subject to approval by such additional Owner(s) and the Operator.
2.2 Easement in Favor of the Operator. Declarant hereby reserves for itself and Operator
and its Permittees an easement over such areas of the Project as may be necessary for the Operator to
perform its obligations pursuant to the provisions of this Declaration.
2.3 Easements for Common Area. Declarant hereby reserves for itself, the Operator and
their Permittees a perpetual non-exclusive easement on, over, under and through the Common Area for
the placement,construction or location maintenance,repair and replacement of the Improvements in the
Common Area.
2.4 Scope of Easements; No Requirement of Confirmation. Except for any easements
granted to Operator, all easements herein shall be easements appurtenant and not easements in gross.
In addition,all easements granted hereunder shall exist by virtue of this Declaration,without the necessity
of confirmation by any other document.
2.5 No Obstructions. The Owners and Occupants of the Project,or any portion thereof,agree
that nothing shall be constructed on any portion of the Common Area to prohibit or discourage the free
MASTER DECLARATION—8
and uninterrupted flow of vehicular or pedestrian traffic or the parking of vehicles in those areas improved
and designated for such use, except for temporary obstructions for construction as provided in
Section 3.11 below.
2.6 No Charge for Use. There shall be no charge for the use of the easements granted herein.
2.7 Prohibition Against Granting Easements. No Owner shall grant an easement or
easements of the type set forth in this Article 2 for the benefit of any other Person or property which is
not located within the Project without the prior written consent of the Operator; provided, however,that
the foregoing shall not prohibit(a)the Declarant or Operator from granting easements for ingress,egress
and utilities over the Project(or portions thereof)for the use or benefit of the Project or property located
adjacent to the Project, or(b)the Declarant or Operator from granting such other easements on,over or
under the Project as may be reasonably necessary to serve the interests and convenience of the Owners
and/or the development of the Project,or(c) an Owner from the granting or dedicating of easements for
Utility Lines to Governmental Authorities or to public utilities, or(d)the use of any easements existing on
the date of recordation of this Declaration, or (e) the Supplemental Declaration—Section Property from
granting easements over any part of the Section Property covered by such Supplemental Declaration —
Section Property.
2.8 Underground Utilities. All Utility Lines to be installed in any portion of the Project shall
be underground, unless otherwise approved by the Operator except for: (1) ground mounted electrical
transformers, (ii) temporary utilities during periods of construction, reconstruction or repair, (iii) those
required to be above ground by the provider of such service or Governmental Requirements; (iv) fire
hydrants, detector check valves, and backflow prevention devices; and (v) utility meters on the sides of
Buildings.
ARTICLE 3
DEVELOPMENT RESTRICTIONS,ARCHITECTURAL AND SITE PLAN
APPROVALS AND CONSTRUCTION
3.1 Development Restrictions. No Improvements shall be built,constructed,erected, placed
or materially altered on any Parcel unless and until the plans, specifications and site plan for the
Improvements thereon have been reviewed in advance and approved by the Operator in accordance with
the provisions of this Article 3.
3.2 Maximum Square Footage of Buildings and Heixht Restrictions. No Buildings shall be
constructed on any Parcel which (i) exceeds the maximum height for such Building, (ii) is located outside
of the Building Area,or(iii)exceeds the maximum Floor Area for such Building,whether or not described,
labeled or depicted on the Site Plan.The height of any Building shall be measured perpendicular from the
finished floor elevation to the top of the roof structure, including any screening, parapet, mechanical
equipment or similar appurtenance located on the roof of such Building. Notwithstanding the foregoing,
the height restriction for any Building may be increased to accommodate the standard or prototype
architectural features of such Occupant ("Architectural Features") provided such Architectural Features
are not more than five (5)feet above the permitted height of the Building and the lineal distance on the
Architectural Feature shall not exceed twenty percent (20%) of the total length of any given elevation of
the Building. All mechanical and rooftop equipment shall be set back from the front of the Building and
screened from view by the parapet.
MASTER DECLARATION—9
3.3 Lighting. Exterior lighting and interior lighting reflecting outside shall not be placed in any
manner which shall cause glare or excessive light spillage on a neighboring Parcel(s) or any property
located adjacent to the Project. All free-standing exterior lighting shall be installed in accordance with the
Project Design Standards and approved by the Operator.
3.4 Self-Park. Each Parcel shall provide adequate parking on its Parcel to comply with
Governmental Requirements for parking without taking into account the parking provided on any other
Parcel,such that each Parcel shall be self-sufficient for vehicular parking without variance.
3.5 Outdoor Seating Areas. Subject to Governmental Requirements, the Occupant of a
Parcel may provide an Outdoor Seating Area located adjacent to or in close proximity to the Building
located on its Parcel, provided the Occupant(a)obtains the prior written approval of the Operator for the
location, dimensions and any screening for the Outdoor Seating Areas, (b) obtains the prior written
approval of the Operator for the number,design,color and location of all umbrellas,tables,seating areas,
and other customary items to be located within the Outdoor Seating Area, (c) maintains the Outdoor
Seating Area in a clean and attractive manner during all periods of use of the Outdoor Seating Area,
including but not limited to(1)daily cleaning and washing of the area and furnishings to maintain the same
in a neat and clean condition free of build up from food spills, dusts, dirt and other substances, (ii) daily
removal of the trash containers, (iii) continuously during business hours cleaning, busing and wiping the
tables and floor areas to keep them free to spills, (iv) steam cleaning the Outdoor Seating Area as and
when the Operator deems reasonably necessary, and (v) maintaining the Common Areas located in the
vicinity of the Outdoor Seating Areas free of any debris from the use of the Outdoor Seating Areas. No
furnishings may be stored in the Outdoor Seating Areas during seasons that it is not in use.
3.6 Grading and Drainage. A site plan indicating the proposed grading and drainage of a
Parcel must be approved by the Operator before any construction is initiated. Parcel grading shall be kept
to a minimum and Buildings are to be located for the preservation of the existing grade(s) and any
grade(s), berms or swales should be an integral part of the grading design.
3.7 Approval of Improvements. No Owner or Occupant shall commence or permit the
commencement of construction of any Improvement or alter any Improvement located on such Owner's
Parcel without the prior written approval of the Submittal Plans (as defined below) by the Operator.
Approval of the Submittal Plans by the Operator shall be based, among other things, on the Operator's
commercially reasonable judgment that the proposed Improvements will produce and contribute to an
orderly and aesthetically complementary design and appearance consistent with the Project Objectives
and the Project Documents, including but not limited to consideration of the: adequacy of the Parcel
dimensions; conformity and harmony of location and external design of the other Improvements in the
Project; the conformity of the Submittal Plans with the requirements of this Declaration and the Project
Design Standards, the relationship of the topography, grade, finished ground elevation and landscaping
of the Parcel being improved to that of neighboring Parcels; proper facing of the main elevation with
respect to nearby streets; the relation of the floor elevations to flood elevations as defined by
Governmental Requirements; the advancement of the Project Objectives; and such other matters
reasonably determined by the Operator to be necessary to maintain the Project in a manner consistent
with the Project Objectives (collectively, "Approval Standards"). The Operator shall not arbitrarily or
unreasonably withhold its approval of the Submittal Plans if the Submittal Plans conform to the Approval
Standards. The Operator may authorize variances from compliance with the requirements or conditions
of the Projective Objectives or Project Documents or any prior approval when, in the sole discretion of
the Operator, circumstances such as topography, natural obstructions, aesthetics or environmental
considerations or hardship may so require. The Operator shall have the right to consider and grant a
MASTER DECLARATION—10
variance without notice to other Owners. If a variance is granted, no violation of the Project Objectives
or Project Documents or the prior approval thereunder shall be deemed to have occurred with respect to
the matter for which the variance was granted. The granting of such variance shall not operate or waive
any of the terms and provisions of Project Objections or Project Documents except as to the particular
subject matter of the variance thereof and the specific Parcel covered thereby.
3.7.1 Submission of Materials. To request approval from the Operator for the
construction, alteration, modification, removal or demolition of any Improvements located on a Parcel,
the Owner thereof shall submit a written request for approval accompanied by the following materials
(collectively, "Submittal Plans") which shall be prepared in accordance with acceptable architectural
standards:
3.7.1.1 Site plan showing the location of all Improvements on the Parcel,
including but not limited to Building Area, Service Facilities, Outdoor Seating Areas, Common Area
improvements, parking areas, stacking areas, exterior lighting, driveways, access ways, sidewalks,fences
and walls, drainage, setbacks, curb cuts, and other pertinent information related to the Improvements.
3.7.1.2 Building plan which shall consist of(1) location of the Building, Outdoor
Seating Areas and Service Facilities within the Building Area, (ii)the Floor Area and height of the Building
(including any Architectural Features), (iii) elevation drawings of all sides of the Building (including any
Architectural Features, rooftop mechanical equipment, parapet or screening from all sides of the
Building), (iv) detailed exterior specifications which shall indicate, by sample if required by the Operator,
all exterior colors, materials and finishes, including roof to be used, and (v) location, design, size and
screening related to any Outdoor Seating Areas, Service Facilities and Communication Facilities.
3.7.1.3 Landscape plan which shall consist of plans showing(1)the location,type
and size of trees, plants, ground cover and shrubs, (ii) the location and type of any berming, mounding,
grading drainage, and (iii)the location and nature of the irrigation or sprinkler facilities.
3.7.1.4 Sign plan for all Parcel Signs, exterior building signs and other signs
visible from the exterior of the Building showing the location, design, size, height and number of panels
(as to the Parcel Sign)of all signs to be located on the Parcel.
3.7.2 Procedure for Approval. The Operator shall have thirty(30)days after receipt of
the Submittal Package to review the Submittal Package. The decision of the Operator (1) can be in the
form of an approval, a conditional approval or denial, (ii) shall be in writing signed by the Operator, and
(iii) shall be mailed to the Owner at the address shown on the Submittal Package ("Review Notice"). The
Review Notice shall state that the Submittal Package was approved,or in the case of a conditional notice,
the particular conditions upon which the Submittal Package is approved, or in the case of a denial, the
particular reasons for such denial. If the Operator denies the Submittal Package, the party submitting
such Submittal Package ("Submitting Owner") may modify the Submittal Package and resubmit the
Submittal Package to the Operator. Thereafter, the Operator shall have fifteen (15) days to review the
modified Submittal Package. If the Operator fails to deliver the Review Notice during the periods specified
above and the Submitting Owner delivers a reminder notice("Reminder Notice")to the Operator advising
of its failure to provide the Review Notice and further advising it/them that failure to respond within
fifteen (15) days of the delivery of such Reminder Notice shall be deemed approval of the Submittal
Package, then, unless the Operator provides the Review Notice within such fifteen (15) day period, such
Submittal Package shall be deemed approved. The approved (or deemed approved)Submittal Plans shall
constitute the "Approved Plans".
MASTER DECLARATION-11
3.7.3 Construction of Improvements. Each Owner shall construct the Improvements
on its Parcel in accordance with the Approved Plans. No changes, alterations, deletions or modifications
shall be made to the Improvements from that shown on the Approved Plans without the prior written
consent of the Operator.
3.7.4 Effect of Review. The Operator shall not be responsible for reviewing, nor shall
its approval of any Submittal Package be deemed an approval from the standpoint of structural safety,
architectural or engineering design or conformance with building or other Governmental Requirements.
As a result of the approval of a Submittal Package, the Operator shall not be liable for any damage, loss
or prejudice suffered or claimed by an Owner or Occupant or any successor in interest to an Owner or
Occupant.
3.7.5 Inspection and Violations. The Operator may, but shall not be obligated to,
inspect any Improvements within the Project at any time for the purpose of determining whether the
Owner is proceeding with construction of such Improvements in accordance with the Approved Plans.
Should the Operator determine that there has been a deviation or violation of the Approved Plans, the
Operator may, but shall not be obligated to, issue a notice in writing thereof to the Owner and demand
that the Owner immediately cease the activity which constitutes a deviation or violate, and/or the
immediately take corrective measures.
3.8 Improvements. Once construction of any Improvement has been commenced, the
Owner of such Parcel agrees to thereafter diligently prosecute to completion the construction of such
Improvements to completion. Each Owner and Occupant shall, with respect to any Improvements
constructed by such Owner or Occupant,construct the same,at such Owner's or Occupant's sole cost and
expense,in a good and workmanlike manner,free of mechanics'or materialmen's liens,and in compliance
with the Approved Plans, all Governmental Requirements, which shall include track out control, and this
Declaration. Each Owner and Occupant shall at all times maintain its Parcel and the Improvements
thereon in a clean and neat condition, free of dust, vermin or debris and shall keep all grass and
landscaping located on its Parcel, if any, properly mowed, trimmed and irrigated.
3.9 Communications Equipment. Subject to Governmental Requirements, Project Design
Standards and the requirements of this Declaration, an Owner shall have the right to install, maintain,
repair, replace and remove Communications Equipment (defined below)on the top of the Building on its
Parcel provided:(i)the height of such Communications Equipment does not extend above the height limits
established above, (ii) the Communication Equipment is set back from the front of the Building and
screened from view by the parapet. As used herein, the phrase "Communications Equipment" means
such things as satellite and microwave dishes, antennas and laser heads, together with associated
equipment and cable,which are for the sole use of the Occupants conducting business in such Building.
3.10 Construction of Parcel Common Area. Prior to any Owner's use or occupancy of any
Building on its Parcel,such Owner shall complete construction of all Improvements to the Parcel Common
Area on its Parcel in accordance with Governmental Requirements and the Approved Plans.
3.11 Interference by Construction. Each Owner agrees that any construction work (including
but not limited to Utility Line Work) to be undertaken by it or its Occupants shall be performed (1)so as
not to cause any unreasonable increase in the cost of constructing the remainder of Project or any part
thereof, (ii) so as not to unreasonably interfere with any construction work being performed on the
remainder of Project, or any part thereof, and (iii) so as not to unreasonably interfere with and minimize
disruptions of the access to, use,occupancy or enjoyment of the remainder of Project or any part thereof
MASTER DECLARATION—12
by the other Owners and the Permittees of the other Owners. All storage of materials and the parking of
construction vehicles, including vehicles of workers, shall occur only on the constructing Owner's Parcel
unless the prior written consent of the Operator and the Owner of the Parcel on which staging will occur
is obtained, provided that such restriction shall not apply to Declarant. Any damage occurring to any
portion of Project as a result of such construction work shall be the responsibility of the Owner performing
such construction work or causing such construction work to be performed and shall be repaired by such
Owner,at such Owner's sole cost and expense,to the same condition as existed immediately prior to such
work promptly upon the completion of such construction work. During the course of any construction,
the Person undertaking such work, at its sole cost, shall (a) make adequate provisions for the safety and
convenience of all Permittees, (b) control dust, noise and other effects of such work using methods
commonly utilized to control such effects associated with construction projects,and (c) promptly remove
all dirt and debris.
3.12 Construction Indemnities. Each Owner covenants and agrees to indemnify, protect,
defend and hold harmless the other Owners from and against all Claims arising from or related to any
construction activities undertaken by such Owner or its Permittees.
3.13 Cost of Construction. Except as otherwise set forth in this Declaration, or in a separate
written agreement between Declarant and the Owner(s), each Owner shall be responsible for the cost
and expense of all Improvements to be constructed on its Parcel.
3.14 M ns. Each Owner shall comply with all applicable Governmental Requirements and the
Signage Criteria with respect to the erection and maintenance of any Parcel Sign and/or signs placed on
the exterior of the Building, unless otherwise approved by the Operator.
3.14.1 Parcel Sign. Subject to governmental requirements and any necessary
governmental approvals to be obtained by the Owner and compliance with the Signage Criteria, the
Owner of a Parcel may be entitled to erect one (1)freestanding sign on its Parcel at the Owner's expense
("Parcel Sign").The Parcel Sign shall only display the designation of the Occupant(s)of such Parcel, unless
otherwise approved by the Declarant and necessary governmental agencies.
3.14.2 Submission of Signage Plans. Prior to constructing, altering or replacing any
exterior building signs or any Parcel Sign on its Parcel,the Owner or Occupant shall submit a signage plan
showing the location, height, dimensions, design and other information deemed necessary by the
Operator to review the proposed Parcel Sign and exterior building signage ("Signage Materials").
3.14.3 Procedure for Approval. The Signage Materials shall be submitted and reviewed
in the same manner as specified for the Submittal Package above.
3.14.4 Signage Restrictions. Notwithstanding anything contained herein to the
contrary, if permitted by the Governmental Regulations and the Signage Criteria, each Owner shall be
permitted to place within the Common Area located on its Parcel a temporary sign for leasing information
and contractors working on a construction job.
3.14.5 Sign Maintenance. Each Owner shall operate, maintain and repair, in a clean,
sightly and safe condition,the Parcel Sign,exterior building signs and all other signs,including components
thereof, located upon its Parcel.
MASTER DECLARATION—13
ARTICLE 4
USE RESTRICTIONS
4.1 Use in General. The Parcels within the Project shall be used only for purposes that are
consistent with the Project Objectives. The Supplemental Declaration—Section Property may further limit
or restrict the use of some or all of the Parcels within the Section Property covered by such Supplemental
Declaration.
4.2 Prohibited Uses. No use shall be permitted in the Project which is inconsistent with the
Project Objectives or for any of the following purposes:
4.2.1 any indecent or pornographic uses, massage parlor, an adult type bookstore or
other establishment selling, displaying or exhibiting "obscene" materials; provided, however, that this
restriction does not apply to the sale of any book by a place of business selling a general range of books,
or the sale or rental of any movies or other media by a place of business selling or renting a general line
of movies or other media.
4.2.2 any head shop store or any other similar store or club; and any business devoted
to sale of articles or merchandise normally used or associated with illegal or unlawful activities, including,
without limitation, the sale of paraphernalia used in connection with illegal or controlled drugs or
substances;
4.2.3 a mobile home or trailer court, junkyard or stockyard; provided, however, this
prohibition shall not be applicable to the temporary use of construction trailers during periods of
construction, reconstruction or maintenance; a landfill, garbage dump or facility for the dumping,
disposing, incineration or reduction of garbage (excluding Service Facilities); any gambling establishing,
bingo parlor or betting parlor; any mortuary, crematory or funeral home; establishment for the sale of
automobiles,trucks, mobile homes or recreational vehicles (excluding incidental sales in connection with
a retail operation)
4.2.4 any use which emits an offensive or obnoxious odor(excluding normal operations
of permitted uses), fume, dust or noise; or any warehouse (excluding a warehouse used in connection
with a retail operation);
4.2.5 any assembly, manufacturing, refining, smelting, agriculture or mining
operations;
4.2.6 any drilling for and/or removal of subsurface substances;
4.2.7 any fire sale, flea market or second-hand store, "surplus" store, pawn shop,
bankruptcy sale (unless pursuant to a court order) or auction house operation;
Nothing in this Section shall be construed to prohibit storage facilities for sale or lease to others
as a permitted use within the Project.
4.3 Additional Use Restrictions. This Declaration may be amended from time to time to
restrict certain uses on a particular Parcel or particular Parcels provided the amendment is specific and
recorded.
MASTER DECLARATION—14
4.3.1 Medical Restriction. Except for Lot 4, Block 1,Ten Mile Crossing Subdivision No. 1
("Lot 4"), no part of the Project within the "Restricted Area" shall be used for urgent care medicine or
general primary practice medicine; provided this restriction shall not apply to any specialty practices of
medicine including, but not limited to, the following: chiropractic, dentistry, orthodontist, oral surgery,
orthopedics, ear, nose and throat, cardiology, addiction medicine, anesthetic medicine, audiology,
radiology, general surgery, urology, neurology, sociology psychiatric, ophthalmology, obstetrics and
gynecology, pediatrician and dermatology. The foregoing restriction shall terminate 20 years after the
first occupant opens for business on Lot 4 and may not be amended or modified without the prior written
consent of the Owner of Lot 4. No additional use restrictions may encumber or burden Lot 4 without the
prior written consent of the Owner of Lot 4. The Restricted Area for the Medical Restriction is Lots 1-7,
Block 2,TM Creek Subdivision No. 1, Parcel A in Record of Survey 11039,and Lots 9-11 and 16-18, Block 2,
TM Creek Subdivision No. 2.
4.3.1.1 Lot 4 shall be used solely for urgent care medicine, general primary
practice medicine and medical office purposes. Any change to the foregoing use shall be subject to
approval by Declarant, such approval not to be unreasonably withheld, conditioned or delayed, provided
however that immediately upon the commencement of said change in use on Lot 4, Paragraph 4.3.1 above
shall be void, no longer enforceable, and the parties agree to cooperate to record an amendment to the
Master Declaration to memorialize the same.
4.3.2 Car Wash Restriction. So long as the Owner of Lots 5 and 6, Block 2, TM Creek
Subdivision No. 1, is open and operating with its primary use as a car wash, Operator will not lease or sell
property to another owner or tenant in the Project whose primary use is a car wash or car polishing tunnel;
provided this restriction shall exclude any car wash or car polishing tunnel which is an ancillary use to a
primary business. As used herein, "primary use" shall mean 51%of gross sales. In no event shall the car
wash or car polishing tunnel exceed seventy five (75) feet. When Lots 5 and 6 cease to operate as a car
wash for a continuous period of one (1) year for any reason other than Force Majeure, this Car Wash
Restriction shall terminate and be of no further force or effect. "Force Majeure" means(a) a labor strike,
fire or other casualty, condemnation, war, riot, insurrection, act of God, the requirements of any local,
state or federal law, rule or regulation,or any reason(other than financial) beyond the reasonable control
of Owner; or (b) temporary closure due to restoration, reconstruction, expansion, alteration or
remodeling of the car wash,such temporary closure in no event to exceed one hundred eighty(180)days.
4.3.2.1 So long as Lots 5 and 6 in Block 2, TM Creek Subdivision No. 1, are open
and operating as a car wash,the adjacent Permanent Drives will be subjected to increased water exposure
and residual soap. The Owner of Lots 5 and 6 shall maintain the adjacent Permanent Drives in a level,
smooth and evenly covered paved surface in the same condition as other Permanent Drives within the
Project. The Owner of Lots 5 and 6,at its sole cost and expense,shall maintain, repair,seal coat or repave
the adjacent Permanent Drives that deteriorate prematurely, in Operator's reasonable discretion, with
the type of surfacing material originally installed or such substitute that is equal or superior in quality, use
and durability. In the event the Owner does not maintain the Permanent Drives to this standard, the
Operator may provide the maintenance or repair and assess the costs and expenses to the Owner as
Parcel Maintenance Expenses.
4.3.3 Financial Institution Restriction. So long as Lots 9, 10 and 11, Block 2,TM Creek
Subdivision No. 2, as amended, is open and operating as an Idaho Central Credit Union, Grantor will not
lease or sell property in the Restricted Use Area to another owner or tenant in the Project for a bank,
credit union or financial institution. The foregoing exclusion shall not apply to mortgage offices, title
MASTER DECLARATION—15
companies,or investment management providers.The"Restricted Use Area"for the Financial Instruction
Restriction shall mean any Lot in TM Creek Subdivision No. 1 and TM Creek Subdivision No. 2.
4.3.4 Gasoline Station Restriction. Until November 15, 2042, the Restricted Property
shall not be used for a primary use as a gasoline station, including any type of business that sells diesel
fuel,ethanol fuel,bio-fuel or any other type of fuel used to power motorized vehicles designated primarily
for use on public streets and highways; a convenience store; a cigar,tobacco or pipe shop; or a business
that generates more than sixty-five percent (65%) of its gross revenue from the sale of beer for off-
premises consumption. This restriction does not apply to restaurants, including restaurants owned by a
brewery or that has a brewery on site that sells beer as part of its business, or stores selling wine. The
"Restricted Property" for this Gasoline Station Restriction is Lots 9, 10 and 11 in Block 1 of TM Crossing
Subdivision No. 5.
4.4 Use of Common Areas. Except as expressly set forth in this Article 4, and subject to all
other terms, limitations and conditions hereof and all Governmental Requirements, the Common Area,
without regard to the ownership thereof, may only be used for the following purposes: the parking of
passenger vehicles and the pedestrian and vehicular traffic of all Permittees; the ingress and egress of all
Permittees and their vehicles to any and from any portion of the Common Area and the public streets
adjacent to the Common Area;the placement, construction or location , operation, maintenance, repair,
replacement, relocation and removal of the Improvements to the Common Area and Utility Lines;
pedestrian and vehicular movement by Permittees to and from adjacent streets and between businesses
located or to be located within the Project; construction, replacement, reconstruction, maintenance and
repair of parking lots or stalls, Outdoor Seating Areas, sidewalks, driveways, lanes, curbs, directional and
other signs,gutters,traffic control areas,traffic islands,traffic and parking lighting facilities, bicycle racks,
perimeter walls, mall or landscaped areas, including planters, planting boxes, edgers, fountains, valves
and conveniences, such as mail boxes, public telephones and benches for the comfort and convenience
of Permittees; and the ingress and egress of delivery and service trucks and vehicles for the delivery of
goods,wares, merchandise and the rendering of services to all Owners and Permittees.
4.5 Use of Sidewalks Parkinig Areas. Except as may be expressly permitted in a Supplemental
Declaration for a Section, and subject to all other terms, limitations and conditions hereof and all
Governmental Requirements, the sidewalks and parking areas on each Parcel, without regard to the
ownership thereof, may only be used for the following purposes:
4.5.1 The Occupant of a Building may use the sidewalks located directly in front of such
Occupant's Building for the sale of merchandise, provided that(i) no more than fifty percent(50%)of the
sidewalk area within the Parcel of the Occupant is used for such activities, (ii) use of the sidewalks does
not materially and adversely impair pedestrian circulation or access to the Building, (iii) such activities are
permitted by the Governmental Requirements, (iv) such Occupant promptly removes all refuse and
cleans the sidewalk area during and after such activities, does not store merchandise or equipment after-
hours, (v)such activities occur for short periods and on an occasional basis, and (vi) such Occupant
complies with all rules and regulations imposed by the Operator from time to time.
4.5.2 No merchandise, equipment or services (including, but not limited to, kiosks,
display tables, espresso carts, pushcarts, vending machines, ATM machines, promotional devices and
similar items),shall be displayed, offered for sale or lease, or stored within the Common Area (except for
permitted sidewalk activities and Outdoor Seating Areas), unless the prior approval of the Operator has
been obtained.
MASTER DECLARATION—16
4.5.3 No structure of a temporary character or similar equipment shall be permitted to
remain within the Common Area, except permitted Outdoor Seating Areas and construction trailers
utilized in the course of constructing Improvements so long as construction activities are being diligently
pursued to completion and are in conformance with the requirements of this Declaration.
4.6 Employee, Contractor Parking. Each Owner shall use commercially reasonable efforts to
cause the employees and contractors of the Occupants of its Parcel to park their vehicles only on such
Parcel. The Operator may,but shall not be obligated,to ticket and fine any employees and/or contractors
that park vehicles on the Parcel of another Owner.
ARTICLE 5
TM CREEK OWNERS ASSOCIATION INC.
5.1 Organization of the Association. TM Creek Owners Association Inc.shall be organized by the
Declarant as an Idaho non-profit corporation and shall be charged with the duties and vested with the powers
prescribed by law and set forth in its Articles of Incorporation, its Bylaws and this Declaration. Neither said
Articles nor said Bylaws shall be inconsistent with this Declaration.
5.2 Members. Each Owner(including the Declarant)of a Lot by virtue of being such an Owner
and for so long as such ownership is maintained shall be a Member of the Association and no Owner shall have
more than one membership in the Association, but shall have such voting rights as hereafter set forth. A
membership in the Association shall not be assignable,except to the successor-in-interest of the Owner and a
membership in the Association shall be appurtenant to and inseparable from the Lot owned by such Owner.
A membership in the Association shall not be transferred, pledged or alienated in any way except upon the
transfer of title to said Lot and then only to the transferee of title to said Lot. Any attempt to make a prohibited
transfer of a membership shall be void and shall not be reflected on the books of the Association.
5.3 Voting. The Association shall have two(2)classes of voting membership:
CLASS A. Class A Members shall include all Owners. Class A Members shall not be
entitled to vote in the Association until such time as the Class B Member ceases to exist. As
of the Class B Member Termination Date (defined below), each Class A Member shall be
entitled to one(1)vote per one thousand (1,000)square feet of the Building located on such
Owner's Lot. For purposes of determining the number of votes per Lot, any square footage
in excess of one thousand (1,000) square feet of any Building shall be rounded down to the
nearest thousand, provided that each Owner shall be entitled to a minimum of one (1)vote
per Lot. Notwithstanding anything to the contrary,when a Lot has more than one Owner,the
vote(s)for such Lot shall be exercised as determined by the Lot's Owners,but in no event shall
the number of votes per Lot be greater than one (1) vote per one thousand (1,000) square
feet of the respective Building.
CLASS B. The Class B Member shall be the Declarant. The Class B Member shall have
the exclusive right to elect and appoint the Board and shall be the sole voting Member of the
Association until the Class B Termination Date. Upon the earlier of(i)five (5)years after the
substantial completion of the construction of the last Building on the last Lot on the Property
to be developed,or(ii)the date the Class B Member does not own any of the Lots,the Class
B Member shall be terminated and shall cease to exist. This date is referred to as the"Class
B Termination Date."
MASTER DECLARATION—17
5.4 Board of Directors and Officers. The affairs of the Association shall be conducted by a Board
of Directors and such officers as the Directors may elect or appoint,in accordance with the Articles and Bylaws,
as the same may be amended from time to time.
5.5 Powers of the Association. The Association shall have all powers of a non-profit corporation
organized under the laws of the state of Idaho subject only to such limitations as are expressly set forth in the
Articles, the Bylaws or this Declaration. It shall have the power to do any and all lawful things which may be
authorized, required or permitted to be done under the Articles, Bylaws or this Declaration, and to do and
perform any and all acts which may be necessary or proper for, or incident to, the proper management and
operation of the Common Areas and the performance of other responsibilities including, but not limited to,
the following:
5.5.1 Assessments. The power to levy Regular,Special and Limited Assessments on the
Owners and/or the Lots and to enforce payment thereof in accordance with the provisions of this
Declaration.
5.5.2 Right of Enforcement. The power and authority from time to time and in its own
name, on its own behalf, or on behalf of any Owner(s) who consent thereto, to commence and maintain
actions and suits to restrain and enjoin any breach or threatened breach of the Articles, Bylaws,
Declaration or Architectural Guidelines, and to enforce by mandatory injunction or otherwise, all
provisions thereof.
5.5.3 Delegation of Powers. The authority to delegate its power and duties to
committees, officers,employees,or to any person,firm or corporation to act as manager, and specifically
the authority to delegate its powers and duties to a management firm pursuant to a management
agreement; provided, however, that any delegation of the Association's powers and duties may be
revoked upon thirty (30) days written notice to such management firm. Neither the Association no the
members of the Board shall be liable for any omission or improper exercise by any person or entity to
whom any such duty or power has been delegated.
5.5.4 Liability of Board Members and Officers. Neither any member of the Board nor
any officers of the Association shall be personally liability to any Owner, or to any other party, for any
damage, loss or prejudice suffered or claimed on account of any act or omission of the Association, the
Board, its officer, a manager or any other representative or employee of the Association, or the ACC,
provided that said Board Member, officer, manager or other person has, upon the basis of such
information as was available, acted in good faith without willful or intentional misconduct.
5.5.5 Association Rules. The power to adopt, amend, and repeal such rules and
regulations as the Association deems reasonable. Such rules shall govern the use by Owners and
Occupants or any other person of Common Areas and other property owned or controlled by the
Association; provided, however, Association rules shall not discriminate among Owners and shall not be
inconsistent with the Articles, Bylaws or this Declaration. A copy of Association rules as they may from
time to time be adopted,amended or repealed,shall be mailed or otherwise delivered to each Owner and
Occupant. Upon such mailings, said Association rule shall have the same force and effect as if they were
set forth in and were part of this Declaration. In the event of any conflict between an Association rule or
any provision of the Articles, Bylaws or this Declaration,the conflicting provisions of the Association rules
shall be deemed superseded to the extent of any such inconsistency.
MASTER DECLARATION—18
5.5.6 Emergency Power. The Association, or any person authorized by the Association,
may enter onto any Lot or into any Building or other structure on a Lot in the event of any emergency
involving illness or potential damage to life or property or when necessary in connection with the
maintenance or construction for which it is responsible. Such entry shall be made with as little
inconvenience to the Occupants as practicable and any damage caused thereby shall be repaired by the
Association unless said entry was necessitated by a condition caused by the Owner or Occupant.
5.5.7 Licenses, Easements and Rights of Way. The power to grant and convey to any
third party such licenses,easements, rights-of-way or fee title in,on,through or under the Common Area
as may be necessary or appropriate for the orderly maintenance, preservation and enjoyment thereof
and for the preservation of health, safety, convenience and welfare of the Owners for the purpose of
constructing, erecting, operating or maintaining:
(i) Underground lines, cables, wires, conduits or other devices for the
transmission of any utility or other service.
(ii) Public sewers, storm drains, water drains and pipes, water systems,
sprinkling systems,water, heating and gas lines or pipes.
(iii) Any similar public or quasi-public improvements or facilities as may be
required from time to time by the City of Meridian,including without limitation,cross-parking
easements, sidewalk abutments, drive lanes, parking areas, curb cuts, landscaping abutting
Common Areas, public and private streets or land conveyed for any public or quasi-public
purpose.
5.5.8 Fiscal Year. The Board shall have the right to elect a fiscal year for the Association
instead of a calendar year for budget, assessments and accounting purposes.
5.5.9 Miscellaneous Services. The power to obtain and pay for the services of any
person or entity to manage its affairs,or any part thereof,to the extent it deems advisable,as well as such
other personnel as the Association shall determine to be necessary or desirable for the proper operation
of the Property,whether such personnel are furnished or employed directly by the Association or by any
person or entity with whom or which it contracts.
5.6 Duties of Association. In addition to the powers delegated to it by the Articles, Bylaws and
this Declaration, including without limitation, Section 5.7, and without limiting the generality thereof, the
Association or its authorized agents, if any,shall have the obligation to conduct all business affairs of common
interest to all Owners and to perform each of the following duties:
5.6.1 Taxes and Assessments. Pay all real and personal property taxes and assessments
separately levied against the Common Areas or against the Association and/or any property owned by the
Association. Such taxes and assessments may be contested or compromised by the Association; provided,
however, that they are paid or a bond insuring payment is posted prior to the sale or the disposition of
any property to satisfy the payment of such taxes. In addition, the Association shall pay all other taxes,
federal,state or local,including income or corporate taxes, levied against the Association in the event that
the Association is denied the status of a tax exempt corporation.
5.6.2 Utilities. Acquire, provide and/or pay for sewer, refuse collection, electrical,
telephone, gas and other necessary services for the Common Areas. The Association may arrange with
MASTER DECLARATION—19
others to furnish sewer, refuse collection,electrical,telephone,gas and other common services necessary
or desirable in connection with the operation of the Property or the enforcement of this Declaration.
5.6.3 Insurance. Obtain, to the extent commercially practicable, from reputable
insurance companies authorized to do business in the state of Idaho and maintain in effect the following
policies of insurance:
(i) Fire insurance, including those risks embraced by coverage of the type now
known as the broad form "All Risk"or special extended coverage endorsement on a blanket
agreement amount basis for the full insurable replacement value of the Project Sign of the
Project and the monument signs for the Property. Notwithstanding the foregoing, Declarant
shall have the option to self-insure with respect to the Project Sign for the Project and the
monument signs for the Property.
(ii) Comprehensive public liability insurance insuring the Association,the Board,
officers,the Declarant,the Operator and the individual Owners and agents and employees of
each of the foregoing against any liability incident to the ownership and/or use of the
Common Areas or easement areas under the control of the Association. The limits of liability
of such coverage shall be as determined by the Board.
(iii) Full coverage directors and officers liability insurance in an amount to be
determined by the Board.
(iv) Such other insurance, including workman's compensation insurance to the
extent necessary to comply with all applicable laws and indemnity, faithful performance,
fidelity and other bonds as the Board shall deem necessary or required to carry out the
Association's functions or to insure the Association against any loss from malfeasance or
dishonesty of any person charged with the management or possession of any Association
funds or other property.
(v) The Association shall be deemed a trustee of the interest of all Owners in any
insurance proceeds paid to it under such policies,and shall have the full power to receive their
interests in such proceeds and to deal therewith.
(vi) Insurance premiums for the above insurance coverage shall be deemed a
common expense to be included in the Regular Assessments levied by the Association.
5.6.4 Identification Signs. Maintain, repair and replace all permanent entry and special
identification signs for the Project, including the Project Sign and Monument Signs, whether the same be
located within or without the boundaries of the Project.
5.6.4.1 Rule Making. Make, establish, promulgate, amend and repeal Association
rules.
5.6.4.2 Enforcement of Restrictions and Rules. Perform such other acts, whether
or not expressly authorized by this Declaration, as may be reasonably necessary to enforce any of the
provisions of this Declaration and the Association rules.
MASTER DECLARATION—20
5.6.4.3 Reserve Account. Establish and fund a reserve account with a reputable
banking institution authorized to do business in the state of Idaho, which reserve account shall be dedicated
to the costs of repair,replacement,maintenance and improvement of the Common Area. Any and all amounts
used to fund the reserve account shall be considered a common expense and a portion of the Association's
Budget and charged as an Assessment to the Owners. Notwithstanding the foregoing, the Association may
elect not to establish a reserve account, and may elect to charge the costs of any such repair, replacement,
maintenance or improvement as a Special Assessment against the Lots at the time such costs are incurred.
5.7 Operation and Maintenance of Common Areas.
5.7.1 The Association shall cause the Common Area to be maintained in a good and clean
condition and repair,including without limitation,the following:
5.7.2 Maintaining, repairing, resurfacing and re-striping,when necessary,the Permanent
Drives and parking facilities in a level, smooth and evenly covered condition with the type of surfacing
material originally installed or such substitute as shall in all respects be of equal or superior in quality, use
and durability, and maintaining, repairing and replacing, when necessary, all traffic directional signals,
markers and lines on the Permanent Drives and parking facilities.
5.7.3 Removing all snow, papers, debris, filth and refuse and thoroughly sweeping the
Common Area to the extent reasonably necessary to keep the Common Area in a clean and orderly
condition.
5.7.4 Installing, maintaining, mowing and watering all landscaping located in the
Common Area to the extent necessary to keep the landscaping in a well maintained, mowed and weed
free condition, including but not limited to maintaining, repairing and replacing, when necessary,
automatic landscaping sprinkler systems and water lines; and trimming and replacing shrubs, grass and
other landscaping, as necessary.
5.7.5 Constructing, repairing and replacing the Project Sign for the Project.
5.8 Budgets and Financial Reevorts. Financial statements for the Association shall be regularly
prepared and copies distributed to each Member as follows:
A proforma operating statement ("Budget") for each fiscal year shall be distributed not less than ninety
(90) days after the beginning of each fiscal year.
Within one hundred twenty (120) days after the close of each fiscal year, the Association, or its agent,
shall cause to be prepared and delivered to each Owner, a balance sheet as of the last day of the
Association's fiscal year and an annual operating statement reflecting income and expenditures of the
Association for that fiscal year.
The failure of the Association to distribute the Budget or the annual balance sheet and/orthe annual operating
statement within the times provided above shall not relieve or release any Owner from the obligation to pay,
when due,all regular,special and limited assessments due and payable to the Association.
5.9 Effective Date. The provisions of this Article 5 shall become operative upon the creation of
the Association by the Declarant. Until the creation and organization of the Association, the Declarant shall
have the right to exercise all of the powers of the Association set forth in this Declaration.
MASTER DECLARATION—21
ARTICLE 6
ASSESSMENTS
6.1 Covenant to Pay Assessments. Each Owner hereby, and by acceptance of a deed to a Lot,
covenants and agrees to pay hen due all Regular, Special and Limited Assessments or charges made by
the Association.
All such Assessments,together with interest, costs and reasonable attorneys' fees which may be
incurred in collecting the same, shall be a charge on the land and shall be a continuing lien upon the Lot
against which each such Assessment is made,and shall also be a personal obligation of the Owner of such
Lot at the time when the Assessment becomes due and payable. The personal obligation for delinquent
Assessments shall not pass to an Owner's successors in title unless expressly assumed by them. No Owner
may waive or otherwise avoid liability for any Assessment by non-use of the Common Areas or by
abandonment of his Lot.
6.2 Regular Assessments. Regular Assessments shall be made by the Association at times and
intervals deemed appropriate by the Board. The Regular Assessments shall be based upon advance
estimates of cash requirements as determined by the Board for maintenance and operation of the
Common Areas and all easement areas, if any, controlled by the Association and for the performance by
the Association of its other duties and responsibilities. Such estimates may include, but shall not be
limited to, expenses of management, taxes and special assessments of local governmental units,
premiums for all insurance which the Association is required or permitted to maintain hereunder,lighting,
water charges(including,without limitation,irrigation assessments),trash collection,sewage charges,the
installation, repair and maintenance costs set forth in Section 5.7 above, legal and accounting fees, and
any deficit remaining from previous periods and the creation of a reserve, surplus and/or sinking fund.
6.3 Special Assessments. In addition to Regular Assessments,the Association may levy at any
time a Special Assessment payable over such period as the Board may deem appropriate for the following
purposes:
To defray, in whole or in part, the cost of any construction or reconstruction of improvements on a
Common Area, unexpected repair or replacement of a Common Area or any facility located thereon or an
easement area controlled by the Association, the furnishing of a special service or services (other than
those appropriate for a Limited Assessment), or for any other expenses incurred or to be incurred as
provided in this Declaration.
To cure a deficit in the common and ordinary expenses of the Association for which Regular Assessments
for a given calendar or fiscal year are or will be inadequate to pay, as determined by the Board.
At the closing of the sale of each Lot by the Declarant,a special assessment of$300 shall be collected from
purchaser of the Lot as payment for the organizational, set-up and administrative costs of the Association.
6.4 Limited Assessments. In addition to Regular and Special Assessments, Owners shall pay
Limited Assessments as follows:
6.4.1 Maintenance and Repair. The Association shall have the power to incur expenses
for maintenance and repair of any Building or any Improvements in, on or about such Building, if such
maintenance and repair is necessary, in the opinion of the Board, to protect Common Area or any other
MASTER DECLARATION—22
portion of the Property, and if the Owner of said Building has failed or refused to perform said
maintenance or repair within a reasonable time after written notice of the necessity thereof has been
delivered by the Board to said Owner. The Board shall levy a Limited Assessment against the Owner of
the Lot owned by said Owner to pay for the cost of such maintenance and repair, and any other cost or
expense, including attorneys' fees, arising out of or incident to such maintenance and repair and the
Assessments therefor.
6.4.2 Correction of Violations. In addition to maintenance and repair the Board, upon
notification of the failure or refusal of an Owner to correct a violation of this Declaration or the
Architectural Guidelines, shall have the power to correct any such violation on a Lot or any Improvement
on a Lot, and incur costs necessary in connection therewith. The cost of such corrective action, together
with interest, related expenses and attorneys' fees shall be assessed and collected as set forth in this
Declaration.
6.4.3 Limited Purpose. The Association shall have the power to levy a Limited
Assessment against Owners and Lots for any limited special purpose which the Board believes necessary
with respect to certain Lots but not an appropriate expense for payment by the Association. Such Limited
Assessment shall not be made until the Owners of said Lots subject thereto have been given an
opportunity,after notice,to participate in a hearing with respect to such Limited Assessment.
6.5 Commencement of Regular Assessments. Regular Assessments of the Association against
each Lot shall commence on the earlier of: (i) six months following the closing of the first sale of the Lot
to an Owner,or(ii)the occupancy of the first Building constructed on the Lot.
6.6 Uniform Rate of Assessment. Except as expressly provided to the contrary in this
Declaration, Regular and Special Assessments of the Association shall be fixed at a uniform rate for all
Lots, according to each Lot's Proportionate Interest.
6.7 Interest and Penalties. Any Regular, Special or Limited Assessment levied by the
Association on Lots if not paid when due, shall bear interest at an annual rate as shall be set by the Board
from time to time, or if none is so set, at an annual rate of twelve percent (12%). Such interest shall
commence on the date the Assessment becomes due and payable. In addition to the interest charge,the
Board may, in accordance with the rules and regulations promulgated by it, impose additional fines or
charges for the failure of an Owner to timely pay any Assessment when due. The right of the Board to
charge interest or impose additional fines or charges shall be in addition to, and not in lieu of, any other
right of enforcement or sanction available to the Board in the event of non-payment of an Assessment.
MAINTENANCE OF IMPROVEMENTS
7.1 Maintenance of Building by Owners. Each Owner,at its own expense,shall maintain the
Buildings, Outdoor Seating Areas and Service Facilities on its Parcel in first class condition of maintenance
and repair, including without limitation, keeping all exterior surfaces of any Building painted,washed and
cleaned regularly, keeping all Outdoor Seating Areas and Service Facilities clean,and keeping all trash and
rubbish removed from the exterior of the Building and the Service Facilities. Pending the construction of
the Building, each Owner shall keep its Parcel in a neat condition and shall not permit an unreasonable
accumulation of rubbish and debris and shall keep weeds cut.
7.2 Owner's Maintenance Obligations for Parcel Common Area. Each Owner,at its sole cost,
shall at all times maintain the portions of the Parcel Common Area located behind the curb line adjacent
MASTER DECLARATION—23
to the Building ("Back of Curb Area") and the replacement of all Parcel Common Area improvements
(collectively, "Owner Maintenance Obligations"), including but not limited to the following:
7.2.1 Maintaining, repairing, replacing, cleaning, sweeping and washing (as
appropriate)the Back of Curb Area so as to keep it in a first-class, clean and orderly condition;
7.2.2 Operating, maintaining, repair and replacing, when necessary, and providing
electricity for artificial lighting facilities located on such Parcel, and keeping such Parcel fully illuminated
at least from dusk until 10:00 pm each day and at least fifteen percent(15%)of the lighting on from 10:00
pm until dawn each day, or such other times as may be designated by the Operator from time to time;
and
7.2.3 Replacing all asphalt, paved surfaces and sidewalks located within the Parcel
Common Area, including those within the Back of Curb Area, in a manner consistent with similar
improvements in the Project and replacing all Utility Lines serving such Parcel.
7.3 Maintenance Standards. The Project Common Area and the Parcel Common Area shall
be maintained in a first class condition of maintenance and repair and in compliance with all
Governmental Requirements and this Declaration,including but not limited to(collectively,"Maintenance
Standards"):
7.3.1 Maintaining, repairing, seal coating, cleaning and sweeping all Common Area,to
the extent necessary to keep the Common Area in a first-class,clean and orderly condition,keep the paved
surfaces in a level, smooth and evenly covered condition with the type of surfacing material originally
installed or such substitute as shall in all respects be equal or superior in quality, use and durability; and
providing security if Operator deems it necessary;
7.3.2 Removing all snow, papers, debris, filth and refuse and thoroughly sweeping the
area to the extent reasonably necessary to keep the area in a clean and orderly condition;
7.3.3 Maintaining and repairing, when necessary, all signs, traffic directional signs,
markers and lines;
7.3.4 Maintaining and watering all landscaped areas; maintaining, repairing and
replacing, when necessary, automatic landscape sprinkler systems and water lines; and replacing shrubs
and other landscaping as is necessary.
7.4 Maintenance by Operator. The Operator shall operate, maintain and replace the Project
Common Area commencing on the date this Declaration is recorded. The Operator shall maintain the
Parcel Common Area on the first day of the month following substantial completion of the improvements
on each Parcel. To the extent caused by the Operator,the Operator agrees to indemnify,defend and hold
harmless each Owner from and against any and all claims resulting from the willful misconduct or gross
negligence of the Operator in performing its obligations under this Section 7.4.
7.5 Right to Perform Parcel Common Area Maintenance Separately.
7.5.1 Self-Maintenance Election. Unless otherwise provided in a Supplemental
Declaration,any Owner may,at any time and from time to time, upon at least sixty(60)days' prior written
notice to the Operator and the other Owners, elect to assume the Operator's obligations to perform the
MASTER DECLARATION—24
Parcel Common Area Maintenance on such Owner's Parcel ("Self-Maintain") In the event of any Owner
elects to Self-Maintain, such Owner shall no longer contribute the Parcel Common Area Maintenance
Expenses attributable to the Parcel Common Area for such Parcel, and shall perform the Parcel Common
Area Maintenance for its Parcel at its sole cost and expense and in a manner and to the Maintenance
Standards set forth above. Regardless of an election to Self-Maintain, each Owner shall continue to pay
the Project Common Area Expenses for the Project Common Area attributable to its Parcel. Any such
Owner may also elect to terminate its election to Self-Maintain by giving at least sixty (60) days' prior
written notice to the Operator, in which event (i)the Operator shall resume its duties with respect to the
Parcel Common Area Maintenance on such Parcel, and (ii) the Owner of such Parcel shall pay to the
Operator the costs attributable to such Parcel. Anything in the preceding sentence to the contrary
notwithstanding,the Owner terminating its election to Self-Maintain shall return the Parcel Common Area
to the Operator in the same quality and condition as the Parcel Common Area in the remainder of the
Project, any failure of which shall be corrected at the sole cost and expense of said Owner.
7.5.2 Indemnity. The Owner of any Parcel electing to Self-Maintain agrees to
indemnify, defend and hold harmless the Operator and the Owners from and against any and all Claims
resulting from the willful misconduct or negligent act or omission of the indemnifying Owner, its agents,
contractors or employees in performing (or failing to perform)the Self-Maintenance obligations.
7.6 Operator.
7.6.1 Operator. The Declarant shall, upon recordation of this Declaration, be the initial
Operator until it resigns or is replaced pursuant to this Article S. The Operator shall have and is hereby
given the full right and authority to perform its obligations hereunder.
7.6.2 Successor Operator. Following the Class B Termination Date, the Association
shall become the Operator.
7.6.3 No Operator. In the event of the termination or expiration of this Declaration
and/or during any period of time when no Owner is performing the duties of Operator and no replacement
Operator has been appointed as provided above, each Owner shall have the obligation to maintain the
Improvements to the Common Area located on its Parcel, at its sole cost and expense, in a manner
consistent with the provisions of this Declaration.
7.6.4 Affiliates. The Operator may hire companies affiliated with it or third party
companies to perform its maintenance obligations hereunder.
7.6.5 Limitation of Liability. At such times as the Operator ceases to have an obligation
to perform the duties and obligations described herein, such Operator shall cease to have any liability or
responsibility for any acts, events, or circumstances occurring subsequent to and not as a result of its
performance or non-performance of its duties or obligations while Operator.
7.7 Taxes. Each Owner shall pay directly to the tax collector when due the real property taxes
and other special taxes and assessments ("Taxes") assessed against the Owner's Parcel, including the
portion of the Common Area located on such Owner's Parcel; subject, however, to the right of any such
Owner to contest the amount or validity of all or any part of the Taxes. If an Owner fails or refuses to pay
such Taxes,then the Operator or any other Owner shall have the right to pay such Taxes on behalf of such
Owner and shall have all rights and remedies provided in Article 9, including but not limited to the right
to file a lien for the amount of Taxes paid by such curing Owner.
MASTER DECLARATION—25
ARTICLE 8
ENFORCEMENT OF ASSESSMENTS
8.1 Right to Enforce. The right to collect and enforce payment of the Assessments made by
the Association is vested in the Association. Each owner of a Lot hereby agrees to the enforcement of the
payment of all Assessments in the manner herein provided. In the event an attorney is employed for the
collection of an Assessment, whether by suit or otherwise, or to enforce compliance with or specific
performance of any of the terms and conditions of this Declaration, the Owner against whom such
enforcement is sought shall pay reasonable attorneys'fees in connection therewith.
8.2 Creation of Assessment Liens. Upon any failure to pay when due any Assessment levied
against any and all Lots in the Project pursuant to this Declaration, there is hereby created a continuing
claim of lien with power of sale on each and every Lot to secure payment thereof,together with interest
thereon and all costs of collection which may be paid or incurred by the Association in connection
therewith, including reasonable attorneys' fees. Said lien shall be prior and superior to all other liens or
claims created subsequent to the recordation of this Declaration, except only for: (i)valid tax and special
assessment liens on Lots in favor of any governmental unit assessing authority; (ii) a lien for all sums
unpaid and secured by a first Mortgage or Deed of Trust,duly recorded in Ada County, Idaho, including all
unpaid obligatory advances to be made pursuant thereto;and (iii)labor or materialmen's liens,if the same
are prior by reason of applicable law. All other lien holders acquiring liens on any Lot after recordation of
this Declaration shall be deemed to consent that such liens shall be inferior liens to the lien for
Assessments levied by Association,whether or not such consent be specifically set forth in the instruments
creating such other liens.
8.3 Enforcement. Upon the failure of an Owner to pay an Assessment in accordance with its
terms,the lien for Assessment herein created may be enforced by sale by the Association, such sale to be
conducted in the manner provided by Idaho law for the exercise of the power of sale in Deeds of Trust or
in any other manner permitted by law elected by the Board. In any such foreclosure,the Owner shall be
required to pay the costs and expenses of such proceedings, including all reasonable attorneys' fees. All
such costs and expenses shall be secured by the lien being foreclosed. The Owner shall also be required
to pay the Association any Assessments against the Lot which shall become due during the period of
foreclosure. The Association shall have the right and power to bid at the foreclosure sale or other legal
sale and to acquire and thereafter hold, convey, lease, rent, encumber, use and otherwise deal with and
in said Lot as the Owner thereof.
8.4 Notice Required. Notwithstanding anything to the contrary contained in this Declaration,
no action may be brought to foreclose the lien for any Assessment,whether by power of sale or otherwise,
until the expiration of thirty (30) days after written Notice of Default has been deposited in the United
States mail, certified or registered mail, postage prepaid, return receipt requested, addressed to the
Owner of the Lot described in such Notice at the last known address of the Owner as shown on the books
and records of the Association. Said Notice shall specify the amount and due date of the unpaid
Assessment(s) and the legal description of the Lot.
8.5 Non-Exclusive Remedy. The remedies set forth in this Article or elsewhere in this
Declaration shall not be deemed to be an exclusive remedy and the Association may pursue all other
remedies available at law or in equity.
8.6 Water Rights Appurtenant to Project Lands. As described herein, each Owner shall pay
for irrigation water and maintenance, repair and replacement of the irrigation facilities within the Utility
MASTER DECLARATION—26
Lines as part of its Project Expenses. Declarant, however, owns and/or controls any and all Water Rights
which are appurtenant to the Project and which may be utilized in connection with the irrigation facilities
as part of the Utility Lines. Declarant hereby reserves unto itself any and all Water Rights.Accordingly,the
Owners of any Parcels shall have no right,title or interest in any Water Rights for the Project or its Parcel
unless and until Declarant conveys such water rights as determined in its sole discretion.
ARTICLE 9
INSURANCE
9.1 Owner's Liability Insurance. Each Owner shall procure and maintain (or cause to be
procured and maintained) in full force and effect throughout the term of this Declaration commercial
general liability insurance ("CGL") under a policy at least equivalent to the Insurance Services Office CIS
00 01 form, insuring against all claims for its legal liability, including but not limited to personal injury,
death or property damage occurring upon, in or about the Owner's Parcel, with limits of liability no less
than:
$2,000,000 each occurrence (combined for bodily injury and property damage)
$2,000,000 for personal injury liability
$4,000,000 aggregate for products-completed operations
$4,000,000 general aggregate
$10,000 premises medical payments
The general aggregate limit shall apply separately to each Owner's Parcel. Such policy or policies shall
cover each Owner's Parcel and any parking area, roads, hallways and sidewalks used in connection
therewith. In no event shall the limits of any CGL maintained by any Owner pursuant to this Declaration
be considered as limiting such Owner's liability under this Declaration.
9.2 Property Insurance. At all times during the term of this Declaration, each Owner shall
keep (or cause to be kept) the Improvements on its Parcel (including the Common Area on its Parcel)
insured against loss or damage by fire and other perils and events as may be insured against under an
Insurance Services Office current "special causes of loss" form commercial Property insurance coverage
policy (or its equivalent) for the full replacement cost of the insured Improvements ("Property
Insurance"),with a deductible no greater than ten percent(10%)of replacement costs,subject to the self-
insurance described below. The full replacement cost shall mean the cost to replace such Improvements,
without deduction for depreciation or wear and tear, including costs attributable to improvements or
upgrades required by changes in laws and regulations governing zoning, public access and
accommodation, work place conditions, public health or safety or other matters,and shall include to the
extent reasonably attainable a reasonable sum for architectural, engineering, legal, administrative and
supervisory fees connected with the restoration or replacement.
9.3 General Requirements.
9.3.1 The CGL insurance provided maintained by or on behalf of each Owner shall
include the Operator and the other Owners (upon written request) as additional insureds as their
respective interests may appear. The Property Insurance provided maintained by or on behalf of each
Owner shall include the Operator and the other Owners (upon written request) as a loss payee, as their
respective interests may appear. Each Owner shall furnish to the Operator or any Owner requesting the
same,a certificate(s) of insurance,or statement of self-insurance,as the case may be,evidencing that the
CGL and Property Insurance required to be carried by such Owner is in full force and effect. Unless
MASTER DECLARATION—27
otherwise approved by the Operator, all insurance required hereunder shall (i) be an occurrence basis
policy (or policies); (ii) be issued by an insurance company having a rating of A-or better and a financial
size of "VII" or better, as set forth in the most current issue of Best's Rating Guide, or equivalent rating
from other recognized rating bureaus and licensed/approved to do business in the State; (iii) be primary
insurance as to all claims thereunder; (iv) with respect to the CGL insurance, contain a cross-liability
endorsement or severability of interest clause;(v) provide that the policy shall not be cancelled or allowed
to expire, without at least thirty(30) days prior written notice by the insurer to each insured and to each
additional insured; and (vi) except for reduction of aggregate limits due to loss payment, provide that an
act or omission of one of the insureds or additional insureds which would void or otherwise reduce
coverage, shall not reduce or void the coverage as to the other insureds.
9.3.2 Each policy of insurance described herein shall contain a waiver by said insurer
of any and all rights of subrogation against the Operator and each Owner, and their respective officers,
employees,agents, associates and representatives.
9.4 Self-Insurance. Notwithstanding anything to the contrary contained in this Article 7, so
long as the tangible net worth of an Owner or Occupant exceeds One Hundred Million Dollars
($100,000,000.00)in Constant Dollars and such Owner or Occupant presents audited financial statements
to the Operator(upon request therefor)certifying such tangible net worth,then such Owner or Occupant
shall have the right to retain the financial risk for all or part of any insurable claim for damages. Such
Owner or Occupant shall deliver (upon request therefor) a letter to the Operator indicating the same.
Notwithstanding the foregoing, if such Owner or Occupant is a publicly-traded company on a nationally
recognized exchange, in lieu of an audited financial statement, such Owner may present to Operator SEC.
filings showing that such Owner or Occupant meets the tangible net worth requirement set forth above.
9.5 Blanket and Excess Insurance. Any insurance required to be carried pursuant to this
Article 9 may be carried under a policy or policies covering other liabilities and locations of an Owner;
provided, however,that such policy or policies apply to the Parcels required to be insured by this Article 9
in an amount not less than $5,000,000 in Constant Dollars or if such blanket CGL policy or policies shall
not have a per location general aggregate of at least $5,000,000 in Constant Dollars, then such insuring
Owner shall also maintain excess liability coverage necessary to establish a total liability limit of
$20,000,000 in Constant Dollars. Such limits may also be satisfied through a combination of primary and
excess policies.
9.6 Release. Each Owner(the "Releasing Owner") hereby releases and waives for itself,and
each Person claiming by,through or under it,each other Owner(the"Released Owner")from any liability
for any loss or damage to property of such Releasing Owner located upon any portion of Project, which
loss or damage is of the type for which property insurance is required to be maintained under this
Article 9, but only to the extent such loss or damage is actually covered by insurance irrespective either
of any negligence on the part of the Released Owner which may have contributed to or caused such loss,
or of the amount of such insurance required or actually carried, including any deductible or self-insurance
reserve. Each Releasing Owner agrees to use its reasonable efforts to obtain, if needed, appropriate
endorsements to its policies of insurance and to the policies of insurance carried by its Occupants, with
respect to the foregoing release; provided, however, that failure to obtain such endorsements shall not
affect the release hereinabove given.
9.7 Indemnification. To the extent not covered by the insurance required to be carried
hereunder, each Owner shall indemnify, protect, defend and hold the other Owners and Operator
harmless from and against any and all Claims arising from injury or death to person or damage to the
MASTER DECLARATION—28
Project that occurs on the indemnifying Owner's Parcel as a result of the actions of such indemnifying
Owner or Operator,except to the extent attributable to the negligence or willful misconduct of such other
Owner. An Owner shall not be entitled to such indemnification for: (i) any damage caused to such Owner
or the Operator by reason of its own negligence or willful misconduct, and (ii) any Claims arising from any
matter covered by the indemnitee's indemnity obligations under this Declaration.
ARTICLE 10
DAMAGE
10.1 Restoration of Common Area. In the event of the destruction and damage to any extent
to the Improvements to the Common Area (either Project Common Area or Parcel Common Area) located
on a Parcel, the Owner of such Parcel shall diligently commence and pursue completion of the repair or
restoration. As to any damage or destruction to Project Common Area,the Owner of such Parcel shall be
obligated,at its cost,to restore and reconstruct such Project Common Area to at least as good a condition
as it was in immediately prior to such damage or destruction.
10.2 Restoration of Building(sj. In the event of damage to or destruction of the Building(s) on
an Owner's Parcel, such Owner may, but shall not be obligated to, restore and reconstruct such
Building(s) (to the extent applicable under this Declaration) in accordance with the requirements of this
Declaration. In the event an Owner so elects,such Owner shall restore and reconstruct such Building(s)to
at least as good a condition as it or they were in immediately prior to such damage or destruction. All
such restoration and reconstruction shall be performed in accordance all Governmental Requirements
and the applicable requirements of this Declaration.
10.3 Clearing of Premises. Whenever an Owner elects not to restore, repair or rebuild a
Building(s)that has or have been damaged or destroyed, such Owner, at its sole cost and expense, shall
promptly(i) raze such Building(s) or such part thereof as has or have been damaged or destroyed, (ii)clear
the premises of all debris, and (iii) all areas not restored to their original use shall be improved with, at
the option of the Owner of such Parcel,either landscaping or pavement of like standard and design as the
Common Area, as applicable, and maintained in a clean, orderly and sightly manner.
ARTICLE 11
REMEDIES
11.1 Legal Action Generally. If any Owner breaches any provision of this Declaration,then the
Operator or any other Owner("Enforcing Owner") may institute legal action against the defaulting Owner
(or any defaulting Occupant) for specific performance, injunction, declaratory relief, damages, or any
other remedy provided by law. All remedies herein or at law shall be cumulative and not all-inclusive. As
used herein, any reference to rights or remedies "at law" or"under applicable law" shall also include any
rights or remedies "in equity". As used in Article 8 "Enforcing Owner", "Defaulting Owner", and/or a
"Non-Defaulting Owner",shall also be deemed to include the Operator.
11.2 Injunctive and Declaratory Relief. In the event of any violation or threatened violation
by any Owner or Occupant of any of the terms, covenants, conditions, and restrictions herein contained,
in addition to any other remedies provided for in this Declaration, the Enforcing Owner shall have the
right to enjoin such violation or threatened violation and to bring an action for declaratory relief in a court
of competent jurisdiction.
MASTER DECLARATION—29
11.3 Owner's Right to Cure or Abate. If any Owner (a "Defaulting Owner") violates any
covenant, condition or restriction contained in this Declaration (including, without limitation, the
obligation to pay Operator for the Parcel Maintenance Expenses and/or the obligation to maintain its
Parcel), or permits or suffers any Occupant of its Parcel to violate any covenant, condition or restriction
of this Declaration, then, in addition to any other remedy provided for in this Declaration, an Enforcing
Owner(each or together,as applicable,the"Non-Defaulting Owner")may demand by written notice(the
"Default Notice") that the violation be cured; provided, however, that in the event such default shall
constitute an emergency situation,the Non-Defaulting Owner acting in good faith shall have the right to
cure such default upon such advance notice as is reasonably possible under the circumstances, or if
necessary, without advance notice, so long as notice is given as soon as possible thereafter. If the
Defaulting Owner does not cure the violation of a monetary obligation within ten (10) days after receipt
of the Default Notice, or cure a violation of a nonmonetary obligation within thirty(30)days after receipt
of the Default Notice,or if such nonmonetary default is of a kind which cannot reasonably be cured within
thirty(30) days, and the Defaulting Owner does not within such thirty(30) day period commence to cure
such default and diligently thereafter prosecute such cure to completion,then Non-Defaulting Owner(and
its agents and employees) shall have the right to (i) pay any sum owed by the Defaulting Owner to the
Person entitled thereto, (ii)enter upon the Parcel of the Defaulting Owner and summarily abate, remove
or otherwise remedy any Improvement, thing or condition which violates the terms of this Declaration,
and (iii) enter upon the Parcel of the Defaulting Owner and perform any obligation of the Defaulting
Owner to be performed thereon. The Defaulting Owner shall,within ten (10) days of written demand by
any other Owner,accompanied by appropriate supporting documentation, reimburse the Non-Defaulting
Owner for all reasonable costs, expenses and attorneys' fees incurred by the Non-Defaulting Owner in
undertaking any of the actions permitted by clauses(i) through (iii) in the preceding sentence, including,
without limitation,wages, benefits and overhead allocable to the time expended by any employee of the
Non-Defaulting Owner in taking such actions, together with interest thereon at the rate equal to the
Default Interest Rate, from the date such costs and expenses were advanced or incurred by the Non-
Defaulting Owner. The right to cure the default of another Owner shall not be deemed to: (a) impose
any obligation on a Non-Defaulting Owner to do so; (b) render the Non-Defaulting Owner liable to the
Defaulting Owner or any third party for an election not to do so; (c) relieve the Defaulting Owner from
any performance obligation hereunder,or(d) relieve the Defaulting Owner from any indemnity obligation
as provided in this Declaration.
11.4 Certain Limitations on Remedies. The Declarant or Operator (whether partners,
shareholders, officers, directors, members, trustees, employees, beneficiaries or otherwise) shall not be
personally liable for any judgment obtained against the Declarant or Operator. Each Owner agrees to look
solely to the Declarant or Operator's interest in Project for recovery of damages for any breach of this
Declaration.
11.5 Lien. Any Non-Defaulting Owner or the Operator("Creditor Owner") shall be entitled to
a lien against the Parcel of the Defaulting Owner,which lien shall be created and foreclosed in accordance
with this Section.
11.5.1 Creation. A lien authorized by this Article shall be created by recording a written
instrument (the "Claim of Lien") in the real property records of the County in which Project is located,
which(i) references this Declaration by recording number, (ii) alleges a specific breach of this Declaration,
(iii) states the amount owed by the Defaulting Owner through the recording date of the Claim of Lien
(including any Delinquency Charges), (iv) contains a legal description of the Parcel of the Defaulting
Owner,and (v) is executed and acknowledged by the Creditor Owner.
MASTER DECLARATION—30
11.5.2 Amount. A lien created pursuant to this Article shall include(i)the amount stated
in the Claim of Lien, (ii) all reasonable costs and expenses incurred in creating and foreclosing such lien
(including attorneys' fees), (iii) all amounts which become due from the Defaulting Owner (or its
successors or assigns) to the Creditor Owner after the date the Claim of Lien is recorded, whether such
amounts arise from a continuation of the default alleged in the Claim of Lien or from some other default
under this Declaration, and (iv) interest on all of the foregoing at the Default Interest Rate.
11.5.3 Priority. The priority of a lien created pursuant to this Article shall be established
solely by reference to the date the Claim of Lien is recorded; provided, however,that such lien shall,in all
instances, be subject and junior to any Mortgage recorded prior to the date such Claim of Lien.
11.5.4 Extinguishment. If the Defaulting Owner cures its default, and pays all amounts
secured by a lien created pursuant to this Article, the Creditor Owner shall, at the Defaulting Owner's
expense, record an instrument sufficient in form and content to clear title to the Parcel of the Defaulting
Owner from the Creditor Owner's lien.
11.5.5 Foreclosure. A lien created pursuant to this Article shall be foreclosed in the
manner provided by law.
11.6 Obligation. Each Owner shall be deemed to covenant and agree to be bound by this
Declaration. Any sum not paid, or other obligation not performed when due, together with interest
payable hereunder, and all costs and attorneys' fees incurred in connection with collection, shall be the
personal obligation of the Persons who were the Owners of the Parcel at the time the payment or
obligation became due. The obligation shall not be released by any transfer of the Parcel subsequent to
the date such payment or obligation became due, but such obligation shall run with the land and shall be
binding upon, and be the liability of,any successor Owner. Nothing contained herein shall limit the ability
of any new Owner from collecting any sum due by the new Owner from the prior Owner which has
become a liability of the new Owner.
11.7 Remedies Cumulative. The remedies provided in this Article are in addition to any
remedies available elsewhere in this Declaration or under applicable law. Exercise of one remedy shall
not be deemed to preclude exercise of other remedies for the same default, and all remedies available to
Declarant may be exercised cumulatively.
11.8 Attorneys' Fees. In the event of any action between the Owners hereto for breach of, or
to enforce any provision or right hereunder, the non-prevailing Owner in such action shall pay to the
prevailing Owner all reasonable costs and expenses expressly including, but not limited to, reasonable
attorneys'fees incurred by the prevailing Owner in connection with such action.
ARTICLE 12
SUPPLEMENTAL DECLARATIONS AND AMENDMENTS
12.1 Supplemental Declaration
12.1.1. Supplemental Declaration — Section Proper. Prior to the Declarant's
conveyance of the Parcel(s) within the Section to the first Owner, the Declarant shall have the unilateral
right to record a Supplemental Declaration—Section Property to(i) designate certain Parcels as a Section,
(ii) attach the legal description of each Parcel within the Section, (iii) attach the approved Site Plan for
each Parcel within the Section (including but not limited to designating the location of the following for
MASTER DECLARATION—31
each Parcel in the Section: Project Common Area, Building Area, Parcel Common Area, Parcel Sign,
maximum Building height and maximum Floor Area),and/or(iii) impose additional covenants,obligations
and restrictions on some or all of the Parcels in the Section. Once recorded, an amendment to a
Supplemental Declaration shall be controlled pursuant to the terms of such Supplemental Declaration,
but any amendment to a Supplemental Declaration shall effect only the Section Property in the initial
Supplemental Declaration, except as provided in Section 13.1.
12.1.2 Supplemental Declaration —Annexation/De-Annexation. So long as Declarant
owns any portion of the Project, Declarant shall have the unilateral right to record a Supplemental
Declaration—Annexation/De-Annexation to: (a)annex all or a portion of the Additional Property into the
Project ("Annex Parcel") and subject such Annex Parcel to the provisions of this Declaration, and/or(b)
de-annex a portion(s) of the Project ("De-Annex Parcel") from the Project and the provisions of this
Declaration. Notwithstanding the preceding sentence, Declarant may not de-annex any portion of the
Project not owed by Declarant without Owner's written agreement. Any Supplemental Declaration to
annex an Annex Parcel shall specify the legal description of the Annex Parcel, attach the Site Plan for the
Annexed Parcel,and provide for any additional covenants and restrictions applicable to such Annex Parcel.
Any Supplemental Declaration to de-annex a parcel shall specify the legal description of the De-Annex
Parcel, attach a Site Plan identifying the Project boundary, depicting the elimination of the De-Annex
Parcel, and further provide that any easements granted over the De-Annex Parcel which benefit some or
all of the Project shall remain in full force and effect from and after the recordation of the Supplemental
Declaration for the De-Annexation Parcel.
12.2 Master Declaration. The Operator shall have the right to amend and/or supplement this
Master Declaration from time to time, including adjusting the Site Plan for some or all of the Parcels;
evidence the Proportionate Share of Project Expenses allocated to each Parcel in the Project; add
additional use restrictions and make any reasonable corrections and/or modifications to this Declaration.
ARTICLE 13
MISCELLANEOUS
13.1 Amendments. This Declaration may be amended only by the Declarant, so long as the
Declarant owns any portion of the Project. After Declarant no longer owns any portion of the Project,
the Declaration may only be amended by mutual agreement of the Owners of the Parcels constituting at
least sixty percent(60%)of the votes by all Members authorized to vote.All amendments shall be effective
only when recorded in records of the County in which Project is located.
13.2 Consent by Operator. When Declarant no longer owns any portion of the Project, the
"approval" or"consent" shall approval or consent of the Operator.
13.3 Consent by Owners. In any instance in which any Owner(except the Operator) shall be
requested to consent to or approve any matter with respect to which such Owner's consent or approval
is required by any of the provisions of this Declaration, such consent or approval or disapproval shall be
given in writing, and shall not be unreasonably withheld, delayed or conditioned. To the extent that the
consent of any of the Owners is required under this Declaration, the Owners shall have fifteen (15) days
to provide notice of approval or disapproval of the item for which consent is required. The failure of an
Owner to deliver notice of disapproval within such fifteen (15) day period shall be deemed approval
thereof. If an Owner delivers a notice of disapproval, such notice shall state with reasonable specificity,
the basis for disapproval.
MASTER DECLARATION—32
13.4 Notices. Any notice, payment, demand, or communication required or permitted to be
given by any provision of this Declaration shall be deemed to have been sufficiently given or served to the
Owner for all purposes if personally delivered (including any overnight courier services) or if sent to the
physical address of the Parcel by registered or certified mail, postage and charges prepaid or if such notice
is rejected, provided such notice was sent prepaid. Upon at least ten (10) days prior written notice, each
Owner shall have the right to change its address to any other address in the United States of America.
The following address is hereby designated for Declarant and may be changed upon ten (10) days prior
written notice to the Owner(s):
To Declarant: Ten Mile Crossing Inc.
c/o Brighton Corporation
2929 W. Navigator Drive,Suite 400
Meridian, Idaho 83642
Any such notice shall be deemed to have been delivered upon receipt if delivered by personal
delivery or Federal Express or other express delivery service, or as of the third business day after mailing
if sent by registered or certified mail.
13.5 Termination of Declarant Rights. If there is no Declarant under this Declaration, any
actions, consents or approvals granted or taken by Declarant prior to the termination of its rights under
this Declaration shall remain in effect for so long as such rights were granted by Declarant and if no time
period is specified for so long as this Declaration remains in effect.
13.6 Binding Effect. All of the limitations, covenants, conditions, easements, and restrictions
contained herein shall attach to, be appurtenant to and run with the Parcels, and shall benefit or be
binding upon the successors and assigns of the respective Owners. This Declaration and all the terms,
covenants and conditions herein contained shall be enforceable as equitable servitudes in favor of said
Parcels and any portion thereof. Every person who now or in the future owns or acquires any right,title
or interest in or to any Parcel or portion thereof shall be conclusively deemed to have consented to and
agreed to every covenant, restriction, provision, condition and right contained in this Declaration,
whether or not the instrument conveying such interest refers to this Declaration.
13.7 Waiver of Default. No waiver of any default by any Owner to this Declaration shall be
implied from any omission by any other Owner to take any action in respect of such default if such default
continues or is repeated. No express written waiver of any default shall affect any default or cover any
period of time other than the default and period of time specified in such express waiver. One or more
written waivers of any default in the performance of any term, provision or covenant contained in this
Declaration shall not be deemed to be a waiver of any subsequent default in the performance of the same
term, provision or covenant or any other term, provision or covenant contained in this Declaration. The
consent or approval by any Owner to or of any act or request by any other Owner requiring consent or
approval shall not be deemed to waive or render unnecessary the consent to or approval of any
subsequent similar acts or requests. The rights and remedies given to any Owner by this Declaration shall
be deemed to be cumulative and no one of such rights and remedies shall be exclusive of any of the
others,or if any other right or remedy at law or in equity which any such Owner might otherwise have by
virtue of a default under this Declaration,and the exercise of one such right or remedy by any such Owner
shall not impair such Owner's standing to exercise any other right or remedy.
13.8 Breach — Effect on Mortgagee and Right to Cure. Breach of any of the covenants or
restrictions contained in this Declaration shall not defeat or render invalid the lien of any Mortgage made
MASTER DECLARATION—33
in good faith, but all of the foregoing provisions, restrictions,and covenants shall be binding and effective
against any Owner of any Parcel, or any part thereof,who acquires title by foreclosure or trustee's sale or
by deed in lieu of foreclosure or trustee's sale. Notwithstanding any other provision in this Declaration
for notices of default,the Mortgagee of any Owner in default hereunder shall be entitled to notice of said
default, in the same manner that other notices are required to be given under this Declaration; provided,
however,that said Mortgagee shall have,prior to the time of the default,notified the Owner hereto giving
said notice of default of the Mortgagee's mailing address. In the event that any notice shall be given of
the default of an Owner and such Defaulting Owner has failed to cure or commence to cure such default
as provided in this Declaration then and in that event the Owner giving such notice of default covenants
to give such Mortgagee (which has previously given the above stated notice to such Owner) under any
Mortgage affecting the Parcel of the Defaulting Owner an additional notice given in the manner provided
above, that such Defaulting Owner has failed to cure such default and such Mortgagee shall have thirty
(30) days after said additional notice to cure any such default, or, if such default cannot be cured within
thirty (30) days, diligently to commence curing within such time and diligently pursue such cure to
completion within a reasonable time thereafter. Giving of any notice of default or the failure to deliver a
copy to any Mortgagee shall in no event create any liability on the part of the Owner so declaring a default
other than to require that notice to the Mortgagee be given as provided herein.
13.9 No Partnership. Neither this Declaration nor any acts of the Owners shall be deemed or
construed by the parties hereto, or any of them, or by any third person, to create the relationship of
principal and agent, or of partnership, or of joint venture, or of any association between any of the
Owners. Each Owner shall be considered a separate owner, and no Owner shall have the right to act as
an agent for another Owner,except as expressly provided herein or by separate written instrument signed
by such Owner(s).
13.10 Severabilitv. In the event any term, covenant, condition, provision, or agreement
contained herein is held to be invalid, void, or otherwise unenforceable, by any court of competent
jurisdiction, such holding shall in no way affect the validity or enforceability of any other term,covenant,
condition, provision, or agreement contained herein.
13.11 Governing Law. This Declaration and the obligations of the Owners hereunder shall be
interpreted, construed, and enforced in accordance with the laws of the state Idaho without regard to
conflict of law rules.
13.12 Terminology. All personal pronouns used in this Declaration, whether used in the
masculine,feminine,or neuter gender,shall include all other genders;the singular shall include the plural
and vice versa. Whenever required by the context of this Declaration,the use of the words "including",
"such as", or words of similar import,when following any general term,statement or matter shall not be
construed to limit such statement, term or matter to specific items, whether or not language of non-
limitation,such as"without limitation",or"but not limited to",are used with reference thereto, but rather
shall be deemed to refer to all other items or matters that could reasonably fall within the broadest scope
of such statement,term or matter.
13.13 Cautions. Article and section titles or captions contained herein are inserted as a matter
of convenience and for reference, and in no way define, limit, extend, or describe the scope of this
Declaration or any provisions hereof.
13.14 Estoppel Certificate. Each Owner shall upon not less than thirty(30)days from receipt of
written notice from the other Owner (which shall not be more frequent than three (3)times per any
MASTER DECLARATION—34
calendar year) execute and deliver to such other Owner, a certificate stating: (i)either this Declaration is
unmodified and in full force and effect or is modified (and stating the modification); and (ii)whether or
not the issuing Owner has received or provided a written notice of default to or from the requesting
Owner in any respect to any default under this Declaration and if so specifying such default.
Such estoppel certificate shall act to estop the issuing Owner from asserting a claim or defense
against a bona fide encumbrancer or purchaser for value to the extent that such claim or defense is based
upon facts known to the issuer as of the date of the estoppel certificate which are contrary to the facts
contained therein, and such bona fide purchaser or encumbrancer has acted in reasonable reliance upon
such estoppel certificate without knowledge of facts to the contrary.
In addition, the Operator shall upon not less than thirty (30) days from receipt of written notice
from an Owner(which shall not be more frequent than three(3)times per any calendar year)execute and
deliver to such other Owner, a certificate stating the amount of such Owner's Proportionate Share of
Project Expenses and that date such Project Expenses have been paid to.
13.15 Not a Public Dedication. Nothing herein contained shall be deemed to be a gift or
dedication of any portion of Project to the general public or for the general public or for any public purpose
whatsoever. Except as herein specifically provided,no right,privileges or immunities of any Owner hereto
shall inure to the benefit of any third-party Person, nor shall any third-party Person be deemed to be a
beneficiary of any of the provisions contained herein.
13.16 Time of Essence. Time is of the essence with respect to the performance of each of the
covenants and agreements contained in this Declaration.
13.17 Entire Declaration. This Declaration and the exhibits hereto contain the entire agreement
with respect to the subject matter hereof. Any prior correspondence, memoranda or agreements are
superseded in total by this Declaration and exhibits hereto. The provisions of this Declaration shall be
construed as a whole according to their common meaning and not strictly for or against any Owner.
13.18 Excuse for Non-Performance. Each Owner shall be excused from performing any
obligation or undertaking provided in this Declaration, except any obligation to pay any sums of money
under the applicable provisions hereof (unless such payment is conditioned upon performance of any
obligation or undertaking excused by this Section), in the event and so long as the performance of any
such obligation is prevented or delayed, retarded or hindered by act of God, fire, earthquake, floods,
explosion, actions of the elements, war, invasion, insurrection, riot, mob violence, sabotage; inability to
procure or general shortage of labor, equipment, facilities, materials or supplied in the ordinary course
on the open market; failure of normal transportation; strikes, lockouts, action of labor unions;
condemnation, requisition; laws or orders of Governmental Authorities or civil or military authorities;
breach or default of the other Owners of any of its obligations hereunder; failure to obtain necessary
governmental approvals or permits despite the exercise of due diligence and good faith efforts by an
Owner, or any other cause, whether similar or dissimilar to the foregoing, not within the reasonable
control of such Owner,other than the lack of or inability to obtain funds or causes which were reasonably
foreseeable.
13.19 Mechanics' Liens. In the event any mechanics' liens are filed against the Parcel of any
Owner, the Owner permitting or causing such lien to be filed hereby covenants either to pay the same
and have it immediately discharged of record or to post a bond for the lien in the manner provided by
law.
MASTER DECLARATION—35
13.20 Duration. This Declaration and each term, easement, covenant, restriction and
undertaking of this Declaration will remain in effect for a term of sixty-five(65)years from the recordation
date hereto and will automatically be renewed for successive ten (10)year periods unless the Owners of
the Parcels owning more than sixty percent(60%)of the land area of all Parcels in Project agree in writing
not to so renew; provided that any election not to renew must be made not less than ten (10)years prior
to the date that such non-renewal is to take effect. The easements created in Article 2 which are
perpetual in nature shall survive the termination of this Declaration and shall exist in perpetuity.
[Remainder of Page Intentionally Left Blank]
MASTER DECLARATION—36
IN WITNESS WHEREOF, this Declaration has been made and executed as of the date first above
written.
DECLARANT:
Ten Mile Crossing, Inc., an Idaho corporation
By:
Robert L. Phillips, Chief Operating Officer
EXHIBITS
The following exhibits are attached to this Declaration.
Exhibit A Legal Description of Project
Exhibit B Site Plan
Exhibit C Signage Criteria
STATE OF IDAHO )
:SS.
County of Ada )
ON THIS day of November, 2023, before me,the undersigned Notary Public in and for the
State of Idaho,personally appeared Robert L. Phillips, known or identified to me to be the Chief Operating
Officer of Ten Mile Crossing, Inc., the corporation that executed the within instrument and the person
who executed the instrument on behalf of said corporation, and acknowledged to me that such
corporation executed the same.
WITNESS my hand and official seal hereto affixed the day and year first ab ve written.
r
No ry Public for Id � ,�AMANDA MCCURRY Commission Expires
COMMISSION M528
NOTARY PUBLIC
STATE OF IDAHO
rMY COMMISSION EXPIRES 04/1Si/2029
MASTER DECLARATION-37
EXHIBIT A
LEGAL DESCRIPTION OF PROJECT
Lot 1, Block 1, Lots 1-4, 7-8, Block 2 of TM CREEK SUBDIVISION NO. 1, according to the plat filed in Book
110 of Plats at Pages 15663 through 15666,official records of Ada County, Idaho. As amended by that
Affidavit of Correction dated November 30, 2017, and recorded on November 30, 2017, as Instrument
No. 2017-11453.
Parcel A, being a consolidation of Lots 5 and 6 of TM Creek Subdivision No. 1, pursuant to that RECORD
OF SURVEY NO. 11039 for Epic Shine Car Wash dated August 25, 2017 and recorded on August 28, 2017,
as Instrument No. 2017-080389,official record of Ada County, Idaho.
Lots 14-19, Block 2,TM CREEK SUBDIVISION NO. 2, according to the plat filed in Book 112 of Plats at
Pages 16402 through 16407,official records of Ada County, Idaho.
Parcel A, being a consolidation of Lots 9, 10, and 11, Block 2 of TM Creek Subdivision No. 2, pursuant to
that RECORD OF SURVEY NO. 12323 for ICCU dated April 23, 2020, and recorded on May 13, 2020, as
Instrument No. 2020-055898, official records of Ada County, Idaho.
Parcel A, being a consolidation of Lots 12 and 13,of TM Creek Subdivision No. 2, pursuant to that
RECORD OF SURVEY NO. 13599 for Meridian Ten Mile, dated August 23, 2022, and recorded August 24,
2022, as Instrument No. 2022-074502,official records of Ada County, Idaho.
Lot 20 and 21, Block 2,TM CREEK SUBDIVISION NO. 3,according to the official plat filed in Book 116 of
Plats at Pages 17469 through 17473, official records of Ada County, Idaho.
Lots 22-28, Block 2,TM CREEK SUBDIVISION NO.4, according to the official plat filed in Book 117 of
Plats at Pages 17944 through 17947, official records of Ada County, Idaho.
Lot 7, Block 3,TM CREEK SUBDIVISION NO. 5, according to the official plat filed in Book 124 at Pages
19787 through 19790, official records of Ada County, Idaho.
Lots 8-13, Block 3,TM CREEK SUBDIVISION NO. 6, according to the official plat filed in Book 126 at Pages
20172 through 20175,official records of Ada County, Idaho.
Lots 1-4, Block 1, FRONTLINE SUBDIVISION, according to the official plat filed in Book 124 at Pages 19876
through 19879,official records of Ada County, Idaho.
AND
Future TM Creek Subdivision No. 7 described as follows:
A PARCEL OF LAND BEING A PORTION OF THE EAST 1/2 OF THE NORTHWEST 1/4 AND THE WEST 1/2
OF THE NORTHEAST 1/4 OF SECTION 14, TOWNSHIP 3 NORTH, RANGE 1 WEST, B.M., CITY OF MERIDIAN,
ADA COUNTY, IDAHO BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT AN ALUMINUM CAP MARKING THE NORTH 1/4 CORNER OF SAID SECTION 14, WHICH
BEARS S89'09'27E A DISTANCE OF 2,657.99 FEET FROM A BRASS CAP MARKING THE NORTHWEST
CORNER OF SAID SECTION 14, THENCE S00'35'31"W A DISTANCE OF 89.00 FEET TO A 5/8-INCH REBAR'
BEING THE POINT OF BEGINNING.
EXHIBIT A
THENCE S89'13'12"E A DISTANCE OF 257.90 FEET TO A 5/8-INCH REBAR ON THE EASTERLY
RIGHT-OF-WAY LINE OF SOUTH BENCHMARK WAY,
THENCE FOLLOWING SAID EASTERLY RIGHT-OF-WAY LINE THE FOLLOWING NINE (9) COURSES:
1. S00'28'31"W A DISTANCE OF 645.58 FEET TO A 5/8-INCH REBAR;
2. 20.82 FEET ALONG.THE ARC OF A CURVE TO THE RIGHT, SAID CURVE HAVING A RADIUS OF 230.71
FEET, A DELTA ANGLE OF 0510'11", A CHORD BEARING OF S03'19'33"W AND A CHORD DISTANCE
OF 20.81 FEET TO A 5/8-INCH REBAR;
3. SO4'52'53"W A DISTANCE OF 0.65 FEET TO A 5/8-INCH REBAR;
4. SO4 52'S3"W A DISTANCE OF 110.00 FEET TO A 5/8-INCH REBAR;
5. N85'08'26"W A DISTANCE OF 1.50 FEET TO A 5/8-INCH REBAR;
6. SO4 52'S3"W A DISTANCE OF 13.51 FEET TO A 5/8-INCH REBAR;
7. 163.02 FEET ALONG THE ARC OF A CURVE TO THE RIGHT, SAID CURVE HAVING A RADIUS OF
385.50 FEET. A DELTA ANGLE OF 24'13'44", A CHORD BEARING OF S16'59'46"W AND A CHORD
DISTANCE OF 161.81 FEET TO A 5/8-INCH. REBAR;
8. S29'06'38"W A DISTANCE OF 340.13 FEET TO A 5/8-INCH REBAR;
9. S70'05'53W A DISTANCE OF 30.96 FEET TO A 5/8-INCH REBAR ON THE NORTHERLY
RIGHT-OF-WAY LINE OF WEST COBALT DRIVE;
THENCE LEAVING SAID EASTERLY RIGHT-OF-WAY LINE AND FOLLOWING SAID NORTHERLY RIGHT-OF-WAY
LINE THE FOLLOWING TWO (2) COURSES:
1. 339.45 FEET ALONG THE ARC OF A CURVE TO THE LEFT, SAID CURVE HAVING A RADIUS OF
1,038.50 FEET, A DELTA ANGLE OF 18*43*41", A CHORD BEARING OF N79'48'56"W AND A CHORD
DISTANCE OF 337.94 FEET TO A 5/8-INCH REBAR;
2. N89*10'470W A DISTANCE OF 289.02 FEET TO A 5/8-INCH REBAR ON THE SUBDIVISION BOUNDARY
OF TM CREEK SUBDIVISION NO. 5;
THENCE LEAVING SAID EASTERLY RIGHT-OF-WAY LINE AND FOLLOWING SAID SUBDMSION BOUNDARY OF
TM CREEK SUBDMSION NO. 5, N00'28'59"E A DISTANCE OF 485.43 FEET TO A 5/8-INCH REBAR ON
THE SUBDIVISION BOUNDARY OF TM CREEK SUBDIVISION NO. 6;
THENCE LEAVING SAID SUBDIVISION BOUNDARY OF TM CREEK SUBDIVISION NO. 5 AND FOLLOWING SAID
SUBDIVISION BOUNDARY OF TM CREEK SUBDIVISION NO. 6 THE FOLLOWING SIX (6) COURSES:
1. N89'28'20"E A DISTANCE OF 4.94 FEET TO A 5/8-INCH REBAR;
2. S85'05'34"E A DISTANCE OF 65.69 FEET TO A 5/8-INCH REBAR;
3. N00'33'41"E A DISTANCE OF 567.58 FEET TO A 5/8-INCH REBAR;
4. N89'26'19"W A DISTANCE OF 153.02 FEET TO A 5/8-INCH REBAR;-
5. N00'35'31"E A DISTANCE OF 153.32 FEET TO A 5/8-INCH REBAR;
THENCE LEAVING SAID SUBDMSION BOUNDARY OF TM CREEK SUBDIVISION NO. 6. S89'09'27"E A
DISTANCE OF 695.69 FEET TO THE POINT OF BEGINNING.
SAID PARCEL CONTAINS A TOTAL OF 22.727 ACRES, MORE OR LESS.
EXHIBIT A
EXHIBIT B
SITE PLAN
TM CREEK SUB.No.2 TM CREEK SUB.No.4
BLOCK BLOCK W.FRANKLIN ROAD
sonsasses man
Il 16 w 19 '.■ 11� 12 1 II O 1! 1� Ja
C ! (�12323) Ni �_ x) .�' Ip �rtHNilHHiHHII�Ywtlau aNlaslasy' 0E� O O w O
E O x6 `$
O - O FRONTUNSSUB.
IS x] ttIHO�G TM CREEK SUB.No.6 Owl EGsiattxtrrrri @ �
♦ i TM CREEK SUB.No.7
BLOCK
O z ( AR IMox> °'Ma" ♦♦ u ;�i BLOCK 3 O
■
b. 410
o o .'Ones
•••••i TENMILE CREEK
x9 •
• Q r
01 Q TM CREEK SUB,No.3 • (D z.
BLOCK 2 TM CREEK SUB.No.5
- ■ BLOCKS Project Boundary-�� ■ :�
TM CREEK SUB.No.1 DRY---
. BLOCK 2 W.COBALT
I
i�UtlrOi Permanent Drive
••.a Project Landscape Area
0 4S0 900 1350
P11.Scale:1"=450'
EXHIBIT B
EXHIBIT C
SIGNAGE CRITERIA
SPECIFIC SIGN REQUIREMENTS
Parcel Signs
A Parcel may be permitted one (1) freestanding sign. The Parcel Sign shall only display the designation of the
Occupant(s)of such Parcel, unless otherwise approved by the Operator and necessary governmental agencies.
Exterior Building Signs
The Owner of a Parcel may install exterior building signage to display the designation of the Occupant(s) or such
Parcel with prior written approval of the Operator.
Common Area Signs
No sign shall be placed in the Parcel or Project Common Area without prior approval from the Operator.
Project Signs
In its sole discretion, Declarant may elect to construct a Project Sign or Project Signs as provided in the Section 1.33
and any related sections of the Master Declaration.
GENERAL REQUIREMENTS
1. All signs are at the Parcel Owner's sole cost and expense.
2. Prior to constructing, altering or replacing any sign, the Owner of a Parcel shall submit a signage
plan showing the location, height, dimensions, design and other information deemed necessary by
the Operator to review. In its sole discretion, the Operator can approval, conditionally approve or
deny the signage plan as submitted in accordance with Article 3 and any related sections of the
Master Declaration.
3. The construction and installation of all signs is subject to this Exhibit C Signage Criteria,
governmental requirements and necessary governmental approvals to be obtained by the Owner.
Owner shall obtain all necessary sign permits and submit a copy to the Operator prior to installing
any sign.
4. All signs and their installation must comply with all local building codes and bear a U.L. label.
5. Each Owner shall operate, maintain and repair, in a clean, attractive and safe condition its Parcel
Sign, building exterior signs and all other signs, including components thereof.
6. All penetrations of building structure required for sign installation shall be sealed in watertight
condition and shall be patched upon removal. Any patching must match the existing wall. If
necessary, the Owner will be required to patch and paint the entire fagade to properly match the
wall. Any vacated sign panels shall be replaced with an appropriate blank panel.
7. No signs on or affixed to trucks, automobiles, trailers or any other vehicle which advertise,
identify, or provide direction to a use or activity not related to its lawful deliveries of sale or
merchandise or rendering of services from such vehicles
Specific Parcel Sign Requirements:
EXHIBIT C
Z Z Z z � �
LAJ Lu w
�- ►- w-M Z
� � 1
r .
z z � .
Z z z
Z Z Z }- ..
+— z z La
ui UJ
r
J J ta{Y0 Z Z Z �_.
Us- 3MIR
Mom
INM
Mill
� . r.
n
' t
T HH
r
Pj .A
W 1t
p t t s ..j
h n
t] �! _
cc
ejT.
�I
i ttE4+3 tIT1AV3 Oh�
OM
H �
a DE:l
Ali
I
f
EXHIBIT C i