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DECLARATION
OF
COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS
FOR
DUNWOODY SUBDIVISION
November 1, 1990
ARTICLE I.
RECITALS
WHEREAS, the undersigned (hereafter collectively "Grantor') are the owners of
certain land in Ada County, Idaho, more particularly described as follows:
Lots 1 through and including 31 of Block 1, DUNWOODY SUBDIVISION,
according to the official plat thereof filed in B.:;ok 58 of Plats at Pages
5482 and 5483, records of Ada County, Idaho.
hereafter "Property";
WHEREAS, the Property shall be developed as a Non -Farm Planned Residential
Development as defined in the ordinances of Ada County, Idaho, for residential, open
space and agricultural uses and similar related uses allowed by law, under the name
"Dunwoody Subdivision;"
WHEREAS, the Grantor desires to subject the Property to the covenants,
conditions, restrictions, easements, reservations, limitations and equitable servitudes
herein set forth to insure the proper design, development, improvement and use of
the Property by the Grantor and all other persons or entities who may subsequently
acquire an interest in the Property.
ARTICLE II.
DECLARATION
The Grantor hereby declares that the Property described on Exhibit A, and
each lot, tract or parcel thereof (hereafter called "Lot," unless specified to the
contrary), is and shall be held, sold, conveyed, encumbered, hypothecated, leased,
used, occupied and improved subject to the following covenants, conditions,
!,frictions, easements, reservations, limitations and equitable servitudes (hereafter
DECLARATION OF COVENANTS - 1
collectively called "covenants and restrictions"), all of which are declared and agreed
to be In furtherance of a general plan for the protection, maintenance, subdivision,
improvement and sale of Dunwoody Subdivision and each Lot therein, and to enhance
the value, desirability and attractiveness thereof. The covenants and conditions set
forth herein shall run with the land and each estate therein and shall be binding
upon all persons having or acquiring any right, title or interest in Dunwoody
Subdivision or any Lot therein; shall inure to the benefit of every Lot in Dunwoody
Subdivision and any interest therein; and shall inure to the benefit of and be binding
upon the Grantor and each Owner; and each successor in Interest of each, and may
be enforced by the Grantor and by any Owner, as hereafter provided.
Notwithstanding the foregoing, no provision of this Declaration shall be
construed or enforced to prevent or limit the Grantor's right to complete development
of Dunwoody Subdivision in accordance with the plan therefor as the same exists or
may be modified from time to time by the Grantor nor obligate the Grantor to
complete the development of Dunwoody Subdivision except as expressly provided
herein, nor prevent normal construction activities during the construction of
Improvements upon any Lot in Dunwoody Subdivision. No development or
construction activities shall be deemed to constitute a nuisance or violation of this
Declaration by. reason of noise, dust, presence of vehicles or construction machinery,
Prection of temporary structures, posting of signs or similar activities, provided that
ilio same are actively, efficiently and expeditiously pursued to completion. in the
event any dispute concerning the foregoing shall arise, a temporary waiver of the
applicable provision(s) of this Declaration may be granted by the Architectural Control
Committee, provided that such waiver shall be for a reasonable period of time. Any
such waiver need not be recorded and shall not constitute an amendment of this
I loolaration.
As provided in Section 5.28 of this Declaration, Lot 16 of Block 1 may be
cI;luded by the Grantor from the coverage of this Declaration. By accepting a Deed
to a Lot within Dunwoody Subdivision, each Owner shall be conclusively deemed to
have waived any objection to the exclusion of said Lot 16 of Block 1, and consents
to the re -subdivision and development thereof In accordance with the zoning
ordinances then in force and effect and applicable to Lot 16 of Block 1, including
such re -subdividing and/or development as shall require that access to Lot 16 of
Block 1 will be provided by the public rights) -of -way within Dunwoody Subdivisions,
and that the utility facilities located within Dunwoody Subdivision may be extended to
serve said Lot 16 of Block 1, including a re -subdivision thereof.
ARTICLE 111.
DEFINITIONS
As used in this Declaration, unless the context otherwise specifies or requires,
the following words and phrases shall be defined as follows:
DECLARATION OF COVENANTS - 2
ACC: The Architectural Control Committee for Dunwoody Subdivision.
Buildina: A structure constructed on a Lot on a temporary or
permanent basis and unless specified to the contrary, shall include ail
other appurtenances and improvements thereto or used in connection
therewith.
Declaration: This instrument as it may be amended from time to time.
Develops^ ,,nt: The project to be undertaken by the Grantor resulting in
the improvement of Dunwoody Subdivision, Including landscaping,
amenities, construction of roadways, utility services and other
Improvements, as elected by the Grantor.
Dunwoody Subdivision: The whole of the land described on Exhibit A.
A reference in this Declaration to °Dunwoody Subdivision' shall include
all Lots shown on the Plat for Dunwoody Subdivision.
Grantor: The undersigned owners of the land described on Exhibit A.
lmprovements: All structures and appurtenances thereto of all kinds and
dynes, including but not limited to, Buildings, roads, driveways, sidewalks,
walkways, walls, fences, screens, landscaping, poles, signs and lighting.
Improvements shall not include those items which are located totally on
the interior of a Building and cannot be readily observed when outside
thereof.
Lot: A portion of Dunwoody Subdivision which is a legally described
tract or parcel of land within Dunwoody Subdivision or which is
designated as a Lot on any recorded subdivision plat relating to
Dunwoody Subdivision or which is described in Section 5.01(c), below.
As used herein, a reference to "Lot' shall include any Lot within
Dunwoody Subdivision without distinction between the different types of
Lots described in Section 5.01, below.
Mortgage: Any mortgage or deed of trust or other hypothecation of
land located in Dunwoody Subdivision to secure the performance of an
obligation. Unless otherwise specifically provided, the reference to a
'Mortgage' in this Declaration shall be limited to a `first Mortgage,'
including a 'first Deed of Trust."
Occupant: Any person, association, corporation or other entity who or
which is an Owner, or has leased, rented, been licensed, or is
otherwise legally entitled. to occupy and use any Building or
Improvement on a Lot whether or not such right is exercised, including
their heirs, personal representatives, successors and assigns.
DECLARATION OF COVENANTS • 3
-P®.01204
Open Space Lot. A Lot described in Section 5.01(b)., below, the use
of which shall be for agricultural purposes, as limited by this
Declaration.
Owner: A person or persons or other legal entity or entities, including
the Grantor, holding fee simple title to a Lot in Dunwoody Subdivision,
Including contract sellers, but excluding those having such interest
merely as security for the performance of an obligation, but including
any Mortgagee (of any priority) or other security holder, provided said
Mortgagee or other security holder Is in actual possession of a Lot as
a result of foreclosure or otherwise, and any person taking title through
such Mortgagee or other security holder by purchase at foreclosure sale
or otherwise.
Plat: A final subdivision plat covering any real property in Dunwoody
Subdivision, as recorded in the office of the County Recorder, Ada
County, Idaho, as the same may be amended by duly recorded
amendments thereto.
Residential Lot. A Lot described in Section 5.01(a), below, the use of
which shall be for single-family residential purposes and uses incidental
thereto as limited by this Declaration.
ARTICLE IV.
PURPOSE
Dunwoody Subdivision is hereby made subject to the covenants and restrictions
contained in this Declaration, all of which shall be deemed to be imposed upon and
rain with the land and each and every Lot and parcel thereof, and shall apply to
each and every Owner and Occupant thereof and their respective successors in
interest, to insure proper design, development, improvement, use and maintenance of
Dunwoody Subdivision for the purpose of:
(a) Insuring Owners and Occupants of Buildings of quality of design,
development, improvement, use and maintenance as shall protect
and enhance the investment and use of all Lots and
Improvements.
(b) Prevention of the erection in Dunwoody Subdivision of
Improvements of improper design or construction with improper
or unsuitable materials or with improper quality and method of
construction.
DECLARATION OF COVENANTS - 4
Encouraging and assuring the erection of high quality and
attractive Improvements appropriately located within Dunwoody
Subdivision.
Securing and maintaining proper set -backs from streets and
adequate free spaces between improvements.
Designating and maintaining open space areas to maintain and
enhance the rural environment.
Assuring that the residential uses within Dunwoody Subdivision
are compatible with adjacent farm uses and do not materially
Interfere therewith.
Limiting the use of the Open Space Lots to agricultural purposes
except as otherwise provided herein.
Requiring that any re -subdivision of a Lot must comply with the
applicable zoning ordinances and regulations then in effect.
ARTICLE V.
PERMITTED USES
SECTION 5.01. Use. The Lots within Dunwoody Subdivision shall be used
for the following purposes:
(a) Residential Lots. The following Lots shall be used exclusively for
single-family residential purposes and such uses as are
customarily incidental thereto (hereafter "Residential Lots'):
Lots 3, 4, 8, 9, 10, 13, 14, 18, 19, 22, 24, 25, 27 and 30 of
Block 1, DUNWOODY SUBDIVISION, according to the Plat thereof
filed in Book 58 of Plats at Pages 5482 and 5483, records of
Ada County, Idaho.
(b) Open Space Lots. The following Lots shall be used for
agricultural purposes, subject to the limitations as provided in this
Declaration (hereafter "Open Space Lots"):
Lots 1, 2, 5, 6, 7, 11, 12, 15, 16, 17, 20, 21, 23, 26, 28, 29
and 31 of Block 1, DUNWOODY SUBDIVISION, according to the
official plat thereof filed in Book 58 of Plats at Pages 5482 and
5483, records of Ada County, Idaho, PROVIDED that Lot 29 of
Block 1, which shall be owned by the Owners in undivided
DECLARATION OF COVENANTS - 5
(c)
(d)
(e)
M
i
(9)
(h)
Encouraging and assuring the erection of high quality and
attractive Improvements appropriately located within Dunwoody
Subdivision.
Securing and maintaining proper set -backs from streets and
adequate free spaces between improvements.
Designating and maintaining open space areas to maintain and
enhance the rural environment.
Assuring that the residential uses within Dunwoody Subdivision
are compatible with adjacent farm uses and do not materially
Interfere therewith.
Limiting the use of the Open Space Lots to agricultural purposes
except as otherwise provided herein.
Requiring that any re -subdivision of a Lot must comply with the
applicable zoning ordinances and regulations then in effect.
ARTICLE V.
PERMITTED USES
SECTION 5.01. Use. The Lots within Dunwoody Subdivision shall be used
for the following purposes:
(a) Residential Lots. The following Lots shall be used exclusively for
single-family residential purposes and such uses as are
customarily incidental thereto (hereafter "Residential Lots'):
Lots 3, 4, 8, 9, 10, 13, 14, 18, 19, 22, 24, 25, 27 and 30 of
Block 1, DUNWOODY SUBDIVISION, according to the Plat thereof
filed in Book 58 of Plats at Pages 5482 and 5483, records of
Ada County, Idaho.
(b) Open Space Lots. The following Lots shall be used for
agricultural purposes, subject to the limitations as provided in this
Declaration (hereafter "Open Space Lots"):
Lots 1, 2, 5, 6, 7, 11, 12, 15, 16, 17, 20, 21, 23, 26, 28, 29
and 31 of Block 1, DUNWOODY SUBDIVISION, according to the
official plat thereof filed in Book 58 of Plats at Pages 5482 and
5483, records of Ada County, Idaho, PROVIDED that Lot 29 of
Block 1, which shall be owned by the Owners in undivided
DECLARATION OF COVENANTS - 5
Interests, may be improved and used as a community tennis
court and related purposes.
SECTION 5.02. Separation of Lots Prohibited. Each CM-ner of a Residential
Lot, with the exception of Lot 9 of Block 1, shall, at the time title to said Residential
Lot is conveyed to the Owner, also be deeded fee title to the Open Space Lot
adjacent thereto. In addition, each Owner of a Residential Lot, including Lot 9 of
Block 1, shall also be deeded an undivided interest In Lot 29 of Block 1. Thereafter,
fee title to the Open Space Lot and the undivided interest in Lot 29 of Block 1 shall
be appurtenant to and may not be separated from the fee ownership of the
Residential Lot and any attempted conveyance to a third party of fee title to a
Residential Lot and/or the appurtenant Open Space Lot and/or the appurtenant
undivided interest in Lot 29 of Block 1, without a conveyance of all such interests
is prohibited; laroVided that fee title to an Open Space Lot may be conveyed without
the conveyance of fee title to the appurtenant Residential Lot to the Owner of an
Open Space Lot which is contiguous to the Open Space Lot conveyed. A
conveyance by an Owner of fee title to a Residential Lot, shall, without being
specifically so stated in the Deed or other instrument of conveyance of said
Residential Lot, constitute a conveyance of all right, title and interest of said Owner
in an to the Open Space Lot and undivided interest in Lot 29 of Block 1 which are
appurtenant to the Residential Lot conveyed, excepting only an Open Space Lot which
has been previously conveyed to the Owner of a contiguous Open Space Lot as
Aluvued herein.
Notwithstanding any provision in this Declaration to the contrary, Lot 5 of Block
'I, which is above designated as an Open Space Lot, may be sold to a third party
not an Owner of a Residential Lot and in such event, said Lot 5 of Block 1, shall
�.._ =ixcluded from the provisions of this Section and, also, the provisions of Section
5.14 (Fences), below.
SECTION 5.03. Approval of Use and Plans. No improvements shall be built,
constructed, erected, placed or materially altered within Dunwoody Subdivision after
the date of this Declaration, unless and until the plans, specifications and site plan
therefor have been reviewed in advance and approved by the ACC in accordance
with the provisions of Article VI, below,
SECTION 5.04. Prohibited Buildings. No trailer or other vehicle, lent, shack,
garage, accessory Building or out Building on a Lot shall be used as a temporary
or permanent residence. No Building shall be allowed on an Open Space Lot unless
(i) it is an agricultural building or, it located on Lot 29 of Block 1, is related to the
use allowed thereon, (H) It is allowed by the applicable ordinances of the
governmental entity having jurisdiction thereof and all required approvals are obtained
as required by such ordinances, and CHO the plans and specifications therefor are first
approved by the ACC as provided in Article VI, below.
IX.CLARATION OF COVENANTS - 6
S�OCIZ07
SECTION 5.05. Setbacks -Residential Lots. Any Building constructed. on a.
Residential Lot .shall. comply with the following minimum setbacks:
Front Lot Una Fifty feet (50')
Rear Lot Una Twenty-five feet (25')
Side Lot Una Twenty-five feet (251
Provided, that these setbacks from the Lot lines shall not apply to any Building on
a Lot on the date of this Declaration.
As used herein and elsewhere in this Declaration, 'front yard' shalt mean that
area on a Residential Lot from the right-of-way line of Dunwoody Court, as shown
on the Plat, to a line created by the front of the residential dwelling on the Lot
extended to each side lot line.
SECTION 5.06. Setbacks-Building(s) for Animals. Any barn, shed or other
Building for the housing or care of Animals (as defined in Section 5.09, below) shalt
comply with the following required minimum setbacks:
Rear Lot Una Zero feet (0')
Side Lot Line Twenty-five feet (25')
Front Lot Una Seventy feet (70')
Provided that no such barn, shed or other Building for the housing or care= of
Animals be located, in whole or in part, nearer than twenty feet (20') from the front
yard of a Residential Lot.
Notwithstanding the provisions herein regarding setbacks, if the applicable
ordinances of the governmental entity having jurisdiction over Dunwoody Subdivision.
require setbacks different than those provided herein, the more restrictive shall control:.
SECTION 5.07. Easements. There is hereby reserved for the use and benefit -
of the Grantor and granted for the use and benefit of each Lot, and for the: use and;
benefit of each Owner and Occupant and their successors and assigns, for the;
purposes incident to such use, development and maintenance of Dunwoody
Subdivision, an easement(s) for the installation and maintenance of public utility
facilities of all kinds, including radio, television and transmission cables, the easemen{s
designated on the recorded Plat.
SECTION 5.08. Commercial Use. No Lot shall be used at any time for
commercial or business Purposes, except for agricultural activity and for such
commercial or business purposes as shall be conducted and maintained solely within
a residential dwelling unit located on a Lot, provided that no signs relating to said
commercial or business activity shall be displayed where visible from any public or
private road within Dunwoody Subdivision and, provided further, that the principal use
of nach Lot shall be as provided for in Section 5.01, above. Notwithstanding the
DECLARATION OF COVENANTS - 7
125900®8
foregoing, the Grantor, or persons authorized by the Grantor, may use a Residential
Lot(s) for development and sales activities relating to Dunwoody Subdivision, model
homes or real estate marketing and sales.
SECTION 5.09. Lighting. Exterior lighting and interior lights reflecting outside
shall be placed in such a manner which will minimize glare and excessive light
spillage onto neighboring Lots.
SECTION 5.10. Animals. No animals, livestock or poultry of any kind shall
be raised, bred or kept on a Lot, except that dogs, cats or other household pets
('Pets'), horses, llamas, cows or other similar non-offensive pasture animals ('Animals')
for the Owner's personal use may be kept, provided that such Pets and/or Animals
are not kept, bred or maintained for any commercial purpose and, provided further,
that where the total combined area of an Owner's Residential Lot and appurtenant
Open Space Lot is two (2) acres or less, no more than two (2) Animals (that is, two
(2) Animals in the aggregate, whether horses, llamas, cows, etc. or one (1) of any
two (2) of them) may be kept or maintained thereon. Where the said combined area
of an Owner's Residential Lot and appurtenant Open Space Lot exceeds two (2)
acres, such Owner may keep and maintain a number of Animals equal to the number
of acres so owned, rounded to the next highest whole number. Any permitted Pets
and Animals shall be properly restrained and controlled at all times they are outside
the boundaries of an Owner's Lot. Each Owner shall be obligated to control the
Pets and Animals on the Owner's Lot and such Owner shall be responsible for any
damage caused by the Pet or Animal. In the event an Owner constructs or
maintains a kennel or other restraining area upon a Lot, such shall @ be located on
a Lot in a manner to avoid any endangerment of or nuisance to adjacent Lot Owners
and (ii) at all times be kept in . a clean and odor -free condition. Under no
circumstances shall Animals be permitted in the front yard of a Residential Lot or an
Existing Lot. Mules, jackasses, pigs, chickens or other similar agricultural animals
whose habits or odors are a nuisance or offensive in a residential neighborhood shall
not be permitted on any Lot. If a permitted Animal gives birth, the exceeding of the
limited number herein provided shall be permitted so long as reasonably necessary
to allow for normal nurturing until separation is practical, not exceeding one (1) year.
Any disputes arising or interpretations concerning the provisions of this Section shall
be determined by the ACC whose decision shall be binding.
SECTION 5.11. Drilling and Exploration. No oil exploration or development
of any kind or nature or mining exploration, development or development of any
nature, or any structures in connection therewith shall be permitted to be erected,
maintained or used on any Lot and no minerals shall be permitted to be mined or
extracted on any Lot. Nothing herein shall prohibit the drilling and use of a water
well on a Lot.
SECTION
5.12. Si ns. No commercial
billboard or advertising
shall be
displayed to the
public view on or from any Lot.
Owners may advertise
a dwelling
unit and Lot for
sale by displaying a single, neat
and reasonably sized
sign on a
DECLARATION OF COVENANTS - 8
Lot. Other temporary signs advertising the name of the builder or the name of the
Institution providing financing may be displayed on a Lot during the construction of
Improvements. All lighted, moving or flashing signs for any purpose are prohibited.
SECTION 5.13. Subdividing. Except as specifically provided in this Declaration
to the contrary, no Lot, whether a Residential Lot or Open Space Lot, may be further
subdivided, nor may any easement or other interest therein less than the whole be
conveyed by the Owner thereof; provided, however, that nothing herein shall be
deemed to prevent an Owner from transferring or selling a Lot to more than one
person to be held by them as tenants in common, joint tenants, tenants by the
entirety or as community property or require the approval of the ACC.
Notwithstanding the foregoing, Lots 26 and 28 of Block 1 may be subdivided,
provided that all of the following conditions are satisfied: (i) such subdividing is in
accordance with applicable ordinances and is approved by the governmental entity
having jurisdiction thereof; and (ii) each of the resulting lots contain a minimum of
one (1) acre. If so subdivided, each of the resulting lots shall be deemed to be
'Residential Lots' as defined herein and shall be subject to the covenants and
restrictions contained in this Declaration, including the provisions of Article VII, below,
except that the Owners or Occupants of such resulting lots shall not have the right
to the use of the tennis court on Lot 29 of Block 1, and they shall not be subject
lu assessment for that portion of the costs attributable to the maintenance, repair and
operation of the tennis court.
SECTION 5.14. Fences. No fence of any kind shall be constructed on a Lot
unless the plans and specifications therefor, Including the location, design, material
wd color thereof, have been approved in writing by the ACC prior to construction
or installation. No fence or hedge located on a Lot shall have a height greater than
six feet (6') above the surface of the ground upon which it is located. The
construction or maintenance of spite fences or spite trees or shrubs shall be
prohibited upon all Lots. All fences shall be constructed in a substantial manner and
shall be maintained in a natural finish and be maintained at all times in good repair.
All new fences constructed as a boundary fence on an Open Space Lot, excepting
Lot 16 of Block 1, shall be a wood pole (dowel end) or split cedar fence as
determined by the ACC, it being the intent of the ACC to require uniformity in new
boundary fencing to the extent reasonably possible; provided, however, that as used
herein, a "boundary fence' shall not include a fence on the boundary of a Lot which
is adjacent to property not within Dunwoody Subdivision, except with respect to Lots
1 and 2 of Block 1, on which Lots a 'boundary fence" shall include a fence on the
boundary between such Lots and all adjacent property, whether or not said adjacent
property Is within Dunwoody Subdivision. No fences shall be allowad in the front
yard of a Residential Lot, It is the intent of the Grantor that the ACC shall have the
authority to regulate all new fences within Dunwoody Subdivision to the end that the
location, type and size of each fence and the materials used therein shall, to the
extent reasonably possible, present a reasonably coordinated appearance and be
o!--prnpriate in a rural atmosphere.
DECLARATION OF COVENANTS - 9
59®-r1121®.
SECTION 5.15. Domestic Water. The Grantor is under no obligation to deliver
domestic water or furnish rights-of-way in connection with the delivery of domestic
water to any Lot in Dunwoody Subdivision, each Owner to be required to provide
such domestic water by the drilling and installation of a domestic water well on the
Lot. Each such domestic water well shall be located a minimum distance of one
hundred feet (100') from the private sewerage disposal facilities which shall be
required to be installed on each Lot by the Owner and shall otherwise comply in all
respects with regulations and health standards of any governmental entity having
jurisdiction thereof.
SECTION 5.16. Irrigation Water. The Grantor has no obligation to deliver
Irrigation water to the individual Lots in Dunwoody Subdivision, but each Lot shall be
entitled to an easement necessary to convey irrigation water from laterals or head
Glitches across other Lots to a point of use on each Lot. Said ditches shall be so
located as to not unreasonably interfere with the maximum use and enjoyment of
each Lot, giving full account to unsightliness, danger to children and maintenance.
Each Owner shall be responsible for the cleaning and the upkeep of the irrigation
water supply ditches located on his Lot and for waste water courses crossing his Lot.
in the event two (2) or more Owners use the same Irrigation water supply ditch
located on or near their common boundary line, they shall share the upkeep and
cleaning of the same on an equal basis. Any driveway or landscaping constructed
or Installed on a Lot which crosses any irrigation water or waste water ditch or lateral
shall enclose the same within a suitable pipe of such material and dimensions as
shall assure continued uninterrupted flow of water and any such Installation shall be
approved by any governmental entity or irrigation district having jurisdiction thereof
prior to construction and installation.
No Owner or Occupant of a tot shall place a pump or other device to divert
water from any lateral ditch or canal located within Dunwoody Subdivision which is
l iced to transport water to any location outside of the Property. In addition, no
Owner or Occupant of a Lot shall deposit, place, dispose of or otherwise cause or
allow any trash, garbage, refuse or other item of any kind in any lateral ditch or
canal or other ditch within Dunwoociv Subdivision. The Grantor expressly authorizes
the governmental entity and/or irrigation district having jurisdiction over a lateral ditch
or canal within Dunwoody Subdivision to enforce the restrictions of this Section
against any Owner or Occupant breaching the same.
The costs and expenses Incurred for the operation and maintenance of the
Irrigation system serving the Lots shall be paid as provided in Article VII, below.
The failure or refusal of an Owner(s) to perform the cleaning and upkeep of
the laterals or other irrigation water or waste water ditch located on such Owner's Lot
or which such Owner(s) has an obligation to perform as provided above, shall entitle
the ACC to perform, or cause to be performed, such cleaning and upkeep, and the
costs and expenses incurred by the ACC in connection therewith shall be subject to
a Limited Assessment under Section 7.09, below.
DECLARATION OF COVENANTS - 10
Nothing herein is intended, nor shall be construed, as a representation by the
Grantor that - any or all of the Lots within Dunwoody Subdivision will be provided with
irrigation water on a gravity flow basis, and each Owner of a Lot shall be responsible
to provide a pump(s) or other supplemental system to supply irrigation water to .his
Lot if required.
SECTION 5.17. b9ewer Dis2osal. Until public sewers serve Dunwoody
Subdivision, all sewerage disposal for each Lot shall be in a private septic tank
system which shall be designed, constructed and installed on each Lot in accordance
with the requirements of the governmental entities having jurisdiction thereof. The
Grantor shall have no obligation for the construction or approval of any sewer
disposal system or the connection thereof. Drainage from a septic tank located on
a Lot shall be kept within the boundaries of the Lot on which it is located. If so
required by the governmental entity having jurisdiction thereof, each owner shall be
required to install dry line sewer facilities at the time of the Initial construction of the
Improvements.
SECTION 5.18. Niintenance. The following provisions shall govern the
maintenance of Lots and all Improvements thereon:
(a) Each Owner of a Lot shall maintain all Improvements located
thereon in good and sufficient repair and shall keep the
improvements thereon painted or stained, lawns cut, shrubbery
trimmed, windows glazed, rubbish and debris removed, weeds cut
and otherwise maintain the same in a neat and aesthetically
pleasing condition. Pending the construction of Improvements,
each Owner shall keep the Lot in a neat condition and shall not
permit an unreasonable accumulation of rubbish and debris and
shall keep all weeds and other growths cut.
(b) in the event all or any portion of the Improvements on a Lot are
damaged or destroyed by fire or other casualty, including any
damage occurring as a result of the exercise of the power of
eminent domain, or any transfer in lieu thereof, the Owner of the
Lot shall promptly restore the Improvements, or the remaining
portion thereof, to an architectural whole in accordance with the
requirements of this Declaration.
(c) A Building which is vacant for any reason shall be kept locked
and the windows glazed in order to prevent entrance by vandals.
(d) All structures, facilities, equipment, objects and conditions
determined by the ACC, in its sole discretion reasonably
exercised, to be offensive or which creates a visual blight within
Dunwoody Subdivision, shall be removed or enclosed within a
DECLARATION OF COVENANTS - 11
a4art,om 212
structure approved by the ACC or appropriately screened from
public view.
SECTION 5.19. Nuisances. No rubbish or debris of any kind shall be placed
or permitted to accumulate upon any Lot within Dunwoody Subdivision and no odor
shall be permitted to arise therefrom so as to render any Lot unsanitary. unsightly,
offensive or detrimental to any other Lot therein or In the vicinity thereof or to its
occupants. No noise or other nuisance shall be permitted to exist or operate upon
or from any Lot so as to be offensive or detrimental to any other Lot within
1:)unwoody Subdivision, or in the vicinity thereof, or to its Occupants. Without limiting
the generality of any of the foregoing provisions, no external speakers, horns, whistles,
bells or other sound devices (other than security devices used exclusively for security
purposes) shall be located, used or placed on any Lot within Dunwoody Subdivision.
SECTION 5.20. Boats. Campers and Other Vehicles. Any trailer, mobile home,
truck larger than a standard pickup, motor home, boat, tractor, vehicle (other than
automobiles), camper and garden or maintenance equipment, when not in actual use,
shall be kept at 'all times in an enclosed structure or screened from public view and
at no time shall any of said vehicles or equipment be parked or stored on a public
or private right-of-way within Dunwoody Subdivision,
SECTION 5.21. Exterior Energy Device, IAntennae. No energy production
device including, but not limited to, generators of any kind and solar energy devices,
or exterior antennae or dish for the reception of radio, television or other signal, shall
be constructed or maintained on any Lot without the prior written approval of the
ACC, except for heat pumps and similar appliances shown on the plans approved
y the ACC.
SECTION 5.22. Minimum ArealCost. No Building intended for use as a
.•'.(1yle-family residence shall be erected, altered, placed or permitted to remain on any
Hesidential Lot, which Building contains less than 1,800 square feet of living area and
has an initial cost to construct the same of less than $100,000.00 based on 1990
construction costs, adjusted for subsequent years in accordance with reasonable
increases in construction costs for residential dwelling units. In the event the Building
intended for use as a single-family residence contains more than one story, the
minimum square footage of living area shall be 2,300 square feet and the minimum
square footage of the first floor shall be 1,500 square feet. The square footage of
living area shall be based on the interior living space at or above the grade of the
Lot, exclusive of basement, porches, patios and garage. No split level homes shall
be permitted.
SECTION 5.23. pbllgation to CommencefComplete Construction. The Owner
of Lot shall be obligated to commence construction of a residential dwelling thereon,
In accordance with the plans and specifications therefor approved by the ACC, within
one (1) year after the date of the closing of the purchase of the Lot from the
Grantor. Following the date of commencement of construction, the Owner shall be
DECLARATION OF COVENANTS - 12
obligated to diligently and continuously proceed therewith to completion within six (6)
months, except for incidental items which cannot be completed because of adverse
weather, provided that such items shall be completed promptly when weather permits.
if an Owner falls to either commence or complete the construction of a
residential dwelling on a Lot within the times herein, and said failure is not cured
within ninety (90) days after written notice delivered by the Grantor to the Owner, the
Grantor shall have the right to repurchase the Lot as hereafter provided, unless an
extension of time for performance by the Owner is approved by the ACC.
SECTION 5.24. Repurchase-Fallurg to Qommence Construction. If an Owner
.falls to commence construction of a residential dwelling on a Lot, within the time
provided in Section 5.23, above, the Grantor shall have the absolute right, at the
Grantor's sole discretion, to repurchase the Lot from the Owner in accordance with
the terms contained in this Section. As used in this Section and Section 5.25,
below, "Lot' shall mean the Residential Lot owned by the Owner and the Open
Space Lot and undivided interest in Lot 29, appurtenant thereto. The election by the
Grantor to repurchase the Lot shall he exercised by the Grantor delivering to the
Owner of a written notice to that effect. Upon the election by the Grantor to
repurchase the Lot, the Owner shall have the absolute obligation to resell and convey
the Lot to the Grantor. The closing of the repurchase shall occur fifteen (15)
business days after the date the written notice of the exercise of the right to
repurchase is delivered to the Owner. The purchase price to be paid by the Grantor
to the Owner for the Lot shall be the purchase price paid by the Owner to the
Grantor for the Lot, less the following: (i) any real estate commission and all closing
costs paid by the Grantor with respect to the Owner's purchase of the Lot, including
illn premium for the title insurance policy purchased by the Grantor and insuring the
Uwner; (ii) the unpaid balance of the purchase price, if any, then owned by the
Owner to the Grantor; and 011) any taxes, liens or encumbrances against the Lot as
of the date of the repurchase. At the closing of the repurchase of the Lot, the
Owner shall deposit with the closing agent named by the Grantor a good and
sufficient Warranty Deed in favor of the Grantor covering the Lot, subject only to the
exceptions contained in the Warranty Deed from the Grantor which conveyed the Lot
to the Owner. The Grantor shall deposit with the closing agent the funds required
to close the repurchase. After approval of the closing statements by the parties, the
Warranty Deed shall be delivered to the Grantor and the funds deposited shall be
disbursed in accordance with the approved closing statements.
As used herein, `commence construction' shall mean that the Owner has:
(a) Obtained the approval of the ACC of the plans and specification
for the residential dwelling and related improvements to be
constructed on the Lot as required by this Declaration;
DECLARATION OF COVENANTS - i 3
1001214
(b) Obtained a building permit from the appropriate governmental
authorities authorizing construction of the residential dwelling and
related improvements as approved by the ACC; and
(c) Expended at least the sum of Ten Thousand ($10,000.00) with
respect to the actual physical construction activities on the Lot.
SECTION 5.25. Grantor's Remedy -Failure to Complete Construction. If an
Owner commences construction as required by Section 5.24, above, but thereafter fails
-to substantially complete the same within the time specified in Section 5.23, above,
or abandons such construction for a period of sixty (60) consecutive days without just
cause, and fails to substantially complete the construction within ninety (90) days after
the written notice described above, the Grantor shall have the absolute right, at the
Grantor's sole discretion, to repurchase the Lot, Including any improvements thereon,
at any time prior to the substantial completion of the residential dwelling. The
exercise: of the Grantor's right of repurchase shall be exercised in the same manner
as provided in Section 5.24, above. If the Grantor elects to repurchase the Lot
hereunder, the Owner shall be under the absolute obligation to resell and convey the
Lot, and the improvements thereon, to the Grantor. The closing of the repurchase
shall occur fifteen (15) business days after the date the written notice of the exercise
of the right to repurchase is delivered to the Owner.. The purchase price to be paid
by the Grantor to the Owner for the Lot shall be the purchase price paid by the
Owner to the Grantor for the Lot, less the following: (i) any real estate commission
and all closing costs paid by the Grantor with respect to the Owner's purchase of
the Lot, including the premium for the title insurance policy purchased by the Grantor
and insuring the Owner; (ii) the unpaid balance of the purchase price, if any, then
owned by the Owner to the Grantor; and (iii) any taxes, liens or encumbrances
against the Lot as of the date of the repurchase; plug an amount equal to the
Owner's actual costs of the improvements constructed on the Lot (not including any
�)rofit of the Owner) as established by paid receipts and other evidence acceptable
to the Grantor of said costs. At the closing of the repurchase of the Lot, the Owner
shall deposit with the closing agent named by the Grantor a good and sufficient
Warranty Deed in favor of the Grantor covering the Lot, subject only to the
exceptions contained In the Warranty Deed from the Grantor which conveyed the Lot
to the Owner. In addition, the Owner shall deposit with the closing agent good and
sufficient lien released from all suppliers, materialmen, laborers, general contractors,
subcontractors and all others who may have lien rights against the Lot and
improvements being repurchased. The Grantor shall deposit with the closing agent
the funds In an amount equal to the repurchase price to be paid for the Lot and
a Promissory Note, as hereafter described, in an amount equal to the price to be
paid to the Owner for the improvements. After approval of the closing statements
b'1 ?h9 parties, the Warranty Deed shall be delivered to the Grantor, the Promissory
Note shall be delivered to the Owner, and the funds deposited shall be disbursed in
accordance with the approved closing statements.
DECLARATION OF COVENANTS - 14
The Promissory Note to be delivered to the Owner by the Grantor as referred
to above, shall bear interest at a rate which is the lesser of (i) the prime (reference)
rate of West One Bank, Boise, Idaho, on the date of the closing, or (ii) eight percent
(8%). The Promissory Note shall be payable in full as to principal and interest the
earlier of (i) the date of the closing of the sate of the Lot and the improvements
thereon by the Grantor to a third party, or (ii) twelve (12) months after the closing
of the repurchase of the Lot and improvements by the Grantor. The Grantor shall
have the right to off -set against the amount due the Owner on the Promissory Note
any sums required to be paid by the Grantor to protect the Lot repurchased from
non -agreed liens and encumbrances.
SECTION 5.26. Right of E,gIgrcement. By acceptance of a Deed to a Lot,
each Owner Is conclusively deemed to agree that the provisions of Sections 5.23,
5.24 and 5.25, above, are specifically enforceable, and, further, that the interest and
welfare of the other Owners of Lots within Dunwoody Subdivision outweigh the interest
of an Owner in holding a Lot for investment or speculative purposes.
SECTION 5.27. Construction Standards. The following standards and
requirements shall be applicable to the construction and/or Installation of any
improvements on a Residential Lot within Dunwoody Subdivision:
(a) Excavation. Any excavation shall be performed in a workmanlike
manner and the Lot kept free from debris. Each Owner shall be
responsible for the repairing of any damage which may occur
during the construction period to any road, mailbox, utility facility
or other on-site or off-site improvement caused by the Owner or
contractors employed by the Owner. Unless an Owner otherwise
notifies, the ACC in writing prior to the Owner's commencement
of construction on a Lot, all on-site Improvements shall be
conclusively deemed to be In good working order and condition
and any damages occurring thereto during the construction shall
be the responsibility of the Owner. All such repairs required
hereunder shall be made immediately following the occurrence of
the damage.
(b) Utilities. The connection to all utility facilities shall be
underground and shall be inspected and approved by the
appropriate governmental entity having jurisdiction thereof and the
company providing the utility service, if required. Utility meters
shall be placed in an unobtrusive location and concealed behind
fences or landscaping where possible. An electrical service
meter(s) shall be located within one hundred fifty feet (150') from
an existing pad mounted transformer or one hundred feet (100)
from a secondary junction box, as the same are provided for
each Lot, unless otherwise approved in writing by Idaho Power
Company.
DECLARATION OF COVENANTS - 15
12590012IG
(c) Landscaping. As a general guideline for the landscaping of each
Lot and as shall be shown on the landscape plan to be
submitted to the ACC under Section 6.07(c), below, the front
yard area of each Lot shall be landscaped with tress, shrubs
and ground cover, or utilized as entryways. Landscaped areas
within the front yard shall include a minimum of five (5) one and
one-half inch (11h') caliper trees measured at twenty-four inches
(24') above the ground plane and twenty -rive (25) five (5) gallon
shrubs. All landscaped areas shall be irrigated with an automatic
underground sprinkler system. Any plantings that do not survive
transplanting or that do not present a healthy appearance shall
be promptly replaced. Subject to weather limitations, all front
yard landscaping shall be completed within sixty (60) days after
Initial occupancy of the Building on a Lot Intended for residential
use.
(d) Driveway Culvert. In '.he construction of a driveway to a Lot
providing access from Dunwoody Court, each Owner shall install
In the borrow ditch adjacent to Dunwoody Court, and thereafter
at all tunes maintain, a culvert having a minimum diameter of
twelve inches (12`).
(e) Maintenance During Construction. The following requirements
shall apply during the construction of Improvements on a Lot:
Q) all debris shall be removed from the Lot prior to each
weekend; (i? no materials shall be placed or kept on any
adjoining Lot, except the open space Lot appurtenant to the Lot
upon which the Improvements are being constructed; (IIQ vehicles
belonging to workmen or used in the construction of the
Improvements shall not be parked In front of occupied residential
dwellings or interfere with traffic on public streets; Qv) utilities,
Including water, shall not be taken from any other Lot without
the approval from the Owner thereof; and (v) a receptacle,
Including a dumpster, for trash and debris shall be located on
the subject Lot and shall not be allowed to be over -filled.
(f) Time of Work. Any work or other activity in connection with the
construction or installation of the Improvements on a Lot shall be
conducted on such days and at such times during the day as
shall not constitute or result in an unreasonable nuisance or
annoyance to the Occupants of neighboring Lots.
(g) Roofs. The roof of each Building on a Lot shall be covered
with either wood shakes, wood shingles or the and shall be
approved by the ACC under Article VI., below.
DECLARATION OF COVENANTS - 16
125900-1217
(h) Qualified Contractor. The construction of each Building on a Lot
shall be performed by a qualified general contractor approved by
the ACC and reasonably experienced In the construction of
residential dwelling units and related improvements. No Owner of
a Lot shall construct a Building on a Lot, unless such Owner is
a qualified general contractor approved by the ACC and
possessing the. experience provided above.
SECTION 5.28. Right to Exclude Lot. The Grantor (as hereafter specifically
clefined) shall have the right to elect to exclude Lot 16 of Block 1 from the coverage
of this Declaration, in which event the covenants and restrictions herein, including any
amendments hereto, shall no longer apply to or be binding upon said Lot 16. if Lot
16 of Block 1 is to be excluded as provided herein, the Grantor, or the Grantor's
successor in title to Lot 16, as the case may be, then holding fee title to Lot 16,
shall record a Notice of Exclusion in the official records of Ada County identifying by
instrument number this Declaration and any amendments hereto and a statement of
the said party's election to exclude Lot 16 from this Declaration. Effective upon the
date of recordation and thereafter, Lot 16 of Block 1 shall no longer be bound by
or subject to the covenants and restrictions of this Declaration. As used in this
Section 5.28, 'Grantor' shall mean and refer only to (i) Steven C. Smith and
(ii) Harold R. Bunderson, their heirs, successors and assigns, and shall not include
any other person identified elsewhere in this Declaration as 'Grantor." So long as
either of the foregoing named persons own any Lot covered by this Declaration, such
named person shall have the absolute right to approve the exclusion of Lot 16 of
Block 1 hereunder and such approval is an express and absolute condition to
exclusion of Lot 16 of Block i as allowed herein.
/ARTICLE Vi.
ARCHITECTURAL CONTROL COMMITTEE
SECTION 6.01. Members of the Committee. The Architectural Control
Committee (ACC) shall be comprised of at least three (3) persons, all of whom shall:
be appointed as herein provided. A member of the ACC shall hold office until he
has resigned or has been removed, but in any event, until said Member's successor
has been appointed. Members of the ACC may be removed at any time, with or
without cause.
SECTION 6.02. A ointment -R m v 1. All members of the ACC shall be
appointed and removed by Steven C. Smith and Harold R. Bunderson, acting jointly,
so long as both own a Lot or other portion of the Property; provided, that if only
one of said Grantors owns a Lot or other portion of the Property, then that party
shall make all appointments to and removals from the ACC. At such time as neither
Steven C. Smith nor Harold R. Bunderson owns a Lot or other portion of the
Property, all members of the ACC shall be appointed or removed by a majority of
the Owners of the Lots within Dunwoody Subdivision.
DECLARATION OF COVENANTS - 17
The ACC shall have the right, by a resolution in writing unanimously adopted,
to designate one (1) of its members to take any action or perform any duties for
and on behalf of the ACC. In the absence of such designation, the vote of any two
(2) members of the ACC shall constitute an act of the ACC.
SECTION 6.03. Non -Liability. Neither the ACC, or any member thereof, or
the Grantor, shall be liable to any Owner or any other person for any loss, damage
or injury arising out of or connected with the performance by the ACC of its duties
and responsibilities by reason of a mistake in Judgment, negligence or nonfeasance
In connection with the approval or disapproval or failure to approve an application.
Every person who submits an application to the ACC for approval of plans and
specifications agrees, by submission of such application, and every Owner or
Occupant of any Lot agrees, by acquiring title thereto or an interest therein, not to
bring any action or suit against the ACC, or any member thereof, or the Grantor to
recover such damages.
SECTION 6.04. Approval Required. No construction, alteration, modification,
removal or destruction of any Improvements of any nature whatsoever which materially
alters the exterior appearance of the Improvements on a Lot, shall be initiated or be
permitted to continue or exist within Dunwoody Subdivision without the prior express
written approval of the ACC.
SECTION 6.05. Basis of Approval.
Approval by the ACC shall be
based,
among other things, on the adequacy of the
Lot dimensions; conformity and
use
of
external design with neighboring Improvements; the effect of location and
use
of
Improvements on neighboring Lots; the
relationship of the Improvements
to
topography, grade, finished ground elevation
and landscaping of the Lot to
that
of
neighboring Lots; the proper facing of the
main elevation with respect to
nearby
streets; and the relation of floor elevations to flood elevations as defined
by
government entities.
SECTION 6.06. Variances. The ACC may authorize variances from compliance
with the requirements of any conditions and restrictions contained in this Declaration,
or any prior approval when, in the sole discretion of the ACC, circumstances such
as topography, natural obstructions, aesthetics or environmental considerations or
hardship may so require. Such a variance must be evidenced by a writing signed
by at least two (2) members of the ACC. If a variance is granted as provided
herein, no violation of this Declaration or prior approval shall be deemed to have
occurred with respect to the matter for which the variance was granted.
SECTION 6.07. Application. To request ACC approval for the construction,
alteration, modification, removal or demolition of any Improvements within Dunwoody
Subdivision, the Owner shall submit a written application in a form required by the
ACC which must be signed by the Owner and contain all information requested and
be accompanied by other material hereafter provided. The ACC shall have the right
to require an Owner to pay a fee, not to exceed $250.00, to reimburse the ACC for
DECLARATION OF COVENANTS - 18
any actual out-of-pocket expenses incurred by the ACC with respect to the review of .
an application, plans and specifications and/or its decision thereon.
All applications must contain, or have submitted therewith, the following material
(collectively called 'plans and specifications') prepared In accordance with acceptable
architectural standards:
(a) Site Plan. A site plan showing the location of the Building(s)
and all other structures and Improvements including fences and
walls on the Lot, Lot drainage and all set backs and other
pertinent information relating to the improvements.
(b) Building Plan. A building plan which shall consist of preliminary
or final blueprints, elevation drawings of the north, south, east
and west sides, and detailed exterior specifications which shall
indicate, by sample if required by the ACC, all exterior colors,
materials and finishes, including roof, to be used.
(c) Landscape Plan. A landscape plan for portions of the Lot to be
landscaped which shall show the location, type and size of trees,
plants, ground cover, shrubs, berming and mounding, grading,
drainage, sprinkler system, fences, freestanding exterior lights,
driveways, parking areas and walkways.
(d) Contractor. Such information concerning the qualifications of the
general contractor selected by the Owner to construct the
Building and related Improvements on the Lot as shalt be
reasonably requested by the ACC to permit it to determine
whether such contractor is qualified and possesses the experience
required by Section 5.22(g), above.
SECTION 6.08. Decision. Unless extended by mutual consent of the Owner
and the ACC, The ACC shall render Its decision with respect to an application within
thirty (30) days after receipt of a properly submitted application. The decision of the
ACC can be in the form of an approval, a conditional approval or denial. A
conditional approval shall set forth with particularity the conditions upon which the
application is approved and a denial shall state with particularity the reasons for such
denial.
Section
6.09. Other Responsibilities.
In the absence of a homeowner's
association for Dunwoody Subdivision,
the
ACC shall have such other rights and
responsibilities
necessary, required or
convenient to carry out and enforce the
provisions of
this Declaration, including
the
right to bring suit in its name or the
name of one
or all of its members.
The
ACC shall have the right to collect all
sums payable
under Article VII, below,
and
use the same for the purposes therein
specified. in
addition, the ACC shall have
the right to adopt rules and regulations
DECLARATION OF COVENANTS - 19
12590 -1220
governing the community tennis court located on Lot 29 of Block 1 of Dunwoody
Subdivision, including the charging of a reasonable uniform fee for its use, if deemed
necessary, to preserve and maintain It. The ACC shall have the right to purchase,
with funds provided from the assessments levied under Article VIi, below, and keep
In force a public liability insurance policy in an amount deemed reasonable by the
ACC, insuring the Owners and the ACC from any liability for bodily injury and/or
property damage occurring on said Lot 29 of Block 1, provided that the failure of the
ACC to purchase and/or keep in force such insurance shalt not be grounds for the
imposition of liability upon the members of the ACC.
ARTICLE Vf0.
ASSESSMENTS
SECTION 7.01. Lots Subject to Assessment. The Lots which are subject to
assessments under this Article ViI are the Residential Lots. Each Open Space Lot
shall not, for the purposes of this Article Vil, be subject to a separate assessment.
SECTION 7.02. Covenant to Pay Assessments. Each Owner, by acceptance
of a deed to a Lot, covenants and agrees to pay when due the assessments
provided for In this Article.
SECTION 7.03. 8ssessment Llen. All assessments levied and assessed
hereunder, together with interest, costs and reasonable attorney's fees which may be
incurred in collecting the same, shall be a charge on the land and shall be a
continuing lien upon each Lot within Dunwoody Subdivision and shall also be the
personal obligation of the Owner of such Lot at the date 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. The
:assessment lien created hereunder may be enforced in the same manner as provided
in the statutes of the State of Idaho for the enforcement of liens and mortgages.
The lien herein created shall at ail times be junior and subordinate to the lien of the
first mortgage or deed of trust encumbering the Lot.
SECTION 7.04. Annual Assessments. Commencing in the calendar year in
which the closing of the first sale of a Residential Lot to an Owner occurs, each Lot
(as specified in Section 7.01, above) within Dunwoody Subdivision shall be assessed
an amount of $200.00 per year provided, however, that any Lot owned by the
Grantor shall be assessed an assessment equal to fifty percent (50%) of the amount
assessed against Lots owned by other Owners. If the Grantor pays all or any
portion of the expenses for which the assessments are to be levied as provided in
Section 7.07, below, in excess of the amount assessed to Lots owned by the
Grantor, such excess amount so paid shall constitute a prepayment of assessments
to become due and payable on the Lots owned by the Grantor within Dunwoody
Subdivision. Any such assessment credit shall not inure to an Owner purchasing a
DECLARATION OF COVENANTS - 20
Lot from the Grantor unless such person is the successor to substantially all of the
Interest. of the Grantor in Dunwoody Subdivision.
Each anhuai assessment shall be payable by an Owner to the ACC, or to
such other party as the ACG shalt direct, in advance or in arrears, and in such
Installments as the ACC shall determine,
SECTION 7.05. Uniform Rate of Assessment. All annual assessments against
the Lots within Dunwoody Subdivision shall be fixed at a uniform rate for all Lots;
provided, however, that as provided in Section 7.01, above, only the Residential Lots
shall be subject to assessment hereunder.
SECTION 7.06. Interest and Qosts. Any assessment against a Lot, if not paid
when due, shall bear interest at an annual rate as shall be set by the ACC from
time -to -time, or If none Is so set, at an annual rate of fifteen percent (15%). Such
Interest shall commence on the date the assessment becomes due and payable.
In addition to the interest charge, if an assessment is collected by the AGC with the
assistance of an attorney, whether or not suit or action is filed, the Owner shall pay
to the ACC reasonable attorney's fees incurred by the ACC and such may be
awarded in a judgment against the Owner.
SECTION 7.07. Purpose of Assessments - Duty of ACC. The ACC shall use
all funds from the assessments paid by the Owners for the purpose of:
(a) Maintaining, repairing, replacing and otherwise in all respects
caring for the landscaping and related Improvements, including
but not limited to, the sprinker system(s), water well and
pump(s), located on (1) the landscaping easement as shown on
the subdivision plat for Dunwoody Subdivision on Lot 1 of Block
1, (ii) the property adjacent to and south of the intersection of
North Locust Grove Road and Dunwoody Court, including the
landscaping located on such adjacent property along the south
right-of-way line of Dunwoody Court.
(b) Maintaining, repairing, replacing, operating and otherwise in all
respects caring for the irrigation water delivery system and the
waste water courses within Dunwoody Subdivision Including, but
not limited to, the lift pump(s) and ditches, except where the
obligation to maintain the ditches is imposed upon an Owner(s)
by this Declaration.
(c) Maintaining, repairing, replacing, Insuring and otherwise in ail
respects operating and caring for the community tennis court and
related facilities located on Lot 28 of Block 1, including the
payment of taxes and other costs with respect thereto.
DECLARATION OF COVENANTS - 21
If an Owner(s) fails to perform the cleaning and up -keep of the Irrigation water
supply ditches located on his Lot and/or the waste water courses crossing his Lot,
the ACC shall cause the same to be performed and all costs incurred shall. :be.
promptly reimbursed to the ACC by the Owner(s) responsible therefor.
The ACC shalt have the obligation to maintain, repair, replace and otherwise
In ail respects care for said landscaping and irrigation system, including the
reimbursement to the Owner(s) of the Lot(s) who pays for water, electricity or other
similar utilities used or consumed with respect to said landscaped areas or Irrigation
system, it being understood and agreed that such shall be provided by the Owner(s)
of the Lot(s) upon ' which said landscaping easements or the lift pump are located.
SECTION 7.08. Adjustment of Assessments The ACC shall have the ri ht
9
to increase or decrease the amount of the annual assessments levied against the
Lots within Dunwoody Subdivision based on the actual and anticipated expenses of
the ACC in performing its obligations described in Section 7.07, above, including
reasonable reserves for repairs and replacement.
SECTION 7.09. � 'm�ited_.Asg . The AIC shall have the right and the
authority to incur costs and expenses for the maintenance and repair of any tot,
including the Improvements on a Lot, and for the cleaning and upkeep of the laterals
and irrigation supply ditches and waste water courses located on a Lot. If such
maintenance, repair, cleaning and/or upkeep is necessary, in the sole discretion of
the ACC, to bring such Owner and/or Lot into compliance with the requirements of
this Declaration, and if the Owner of said Lot has failed or refused to perform the
same within a reasonable time after written notice of the necessity thereof has been
olivered by the ACC to said Owner, the ACC shall have the right to perform, or
cause performance of, the same, and to levy a Limited Assessment against the Lot
owned by such Owner for the amount of the costs and expenses incurred by the
ACC in connection therewith, including attorneys fees. The right of the ACC to incur
costs and expenses with respect to a Lot, and to secure repayment thereof by the
levying of a Limited Assessment, shall also relate to the correction of violations of
this Declaration which an Owner fails or refuses to correct within a reasonable time
after written notice delivered to such Owner by the ACC.
SECTION 7.10. Non-Exciusive Remedy. The right of the ACC to levy a
Limited Assessment as described in Section 7.09, above, shall not be deemed the
exclusive remedy of the ACC, and it may, in its sole discretion, without waiver of any
other legal or equitable remedy, pursue enforcement of the lien of the Limited
Assessment, collect the amount due directly from the Owner responsible therefor,
and/or pursue any other remedy(s) available at law or equity. Nothing in this
Declaration shall prohibit or limit the ACC or an Owner from pursuing any legal or
equitable remedy 'for a violation of this Declaration.
SECTION 7.11. Right of Owner of Adjoining Property. As consideration for
the easement for landscape purposes granted by the owner of the property located
DECLARATION OF COVENANTS - 22
at the intersection of Dunwoody Court and North Locust Grove Road, which property
is not part of Dunwoody Subdivision and Is commonly Identified as 5780 North Locust
Grove Road (hereafter 'Adjacent Propertyl, the owner and/or occupants of the
Adjacent Property shall have the right to use the tennis court to be constructed on
Lot 29 of Block i of Dunwoody Subdivision, without the payment of fees or
assessments, provided that the times and frequency of such use shall be reasonable
and shall be subject to any rules and regulations adopted by the ACC for the tennis
court applicable to all Owners.
ARTICLE Vill.
MISCELLANEOUS
SECTION 8.01. Term. This Declaration and all covenants, conditions,
restrictions and easements contained herein shall run until December 31, 2015, unless
amended as hereafter provided. After December 31, 2015, said covenants, conditions,
restrictions and easements shall automatically extend for successive periods of ten (10)
years each, unless extinguished by a written Instrument executed by the Owners of
at least fifty-one percent (51%) of the Luts in Dunwoody Subdivision and such written
instrument is recorded with the Ada County Recorder.
SECTION 8.02. Amendment. This Declaration may be amended as follows:
(a) By Grantor. Until title to a Lot within Dunwoody Subdivision is
conveyed by the Grantor to an Owner, this Declaration may be
amended or terminated by the Grantor by recordation of a written
Instrument signed by the Grantor and acknowledged setting forth
such amendment or termination.
(b) By Owners. Except where a greater percentage is required
herein, the provisions of this Declaration, other than this Section,
may be amended by an instrument in writing, signed and
acknowledged by the Owners, including the Grantor, owning at
least' fifty-one percent (51%) of the Lots within Dunwoody
Subdivision, and such amendment shall be effective upon its
recordation with the Ada County Recorder. Any amendment to
this Section 9.02 shall require the vote or written consent of all
Owners.
SECTION 8.03. Non -Waiver. The failure of the Grantor or any Owner in any
one or more instances to insist upon the strict performance of any of the covenants,
conditions, restrictions, easements or other provisions of this Declaration or to exercise
any right or option contained herein, or to serve any notice or to Institute any action,
shall not be construed as a waiver or relinquishment for the future of such covenant,
condition, restriction, easement or other provision, but the same shall remain in full
force and effect.
DECLARATION OF COVENANTS - 23
SECTION 8.04. Erfforcement - Costs. This Declaration may be enforced by
the ACC or by any Owner (including the Grantor) of a Lot. If suit or other action
is filed to interpret or enforce this Declaration, or any provision thereof, the prevailing
party shall be awarded reasonable attorney's fees, in addition to the costs and
disbursements allowed by law, including the same with respect to an appeal.
SECTION 8.05. Acceptance. Each Owner of a Lot, each purchaser of a Lot
under a contract or agreement of sale and each holder of an option to purchase a
Lot, by accepting a deed, contract of sale or agreement or option, accepts the same
subject to all of the covenants, conditions, restrictions, easements and other provisions
set forth in this Declaration and agrees to be bound by the same.
SECTION 8.06. Severability. Each of the provisions hereof shall be deemed
independent and severable and the invalidity or unenforceability of any provision or
portion thereof shall not affect the validity or enforceability of any other provision.
SECTION 8.07. Ipteraretatio . The provisions of this Declaration shall be
liberally construed to affect the purposes hereof and shall be construed and governed
in accordance with the laws of the State of Idaho. The singular shall include the
plural and the plural the singular, and the masculine, feminine or neuter shall include
the masculine, feminine or neuter. All captions and titles are intended solely for
convenience of reference and shall not affect that which is set forth In any of the
provisions hereof.
IN WITNESS WHEREOF the Grantor has executed this Declaration as of the
clay and year first above written.
7 wl fW--
_Ira e _ � � _ -
DECLARATION OF COVENANTS - 24
STATE OF IDAHO }
} ss:
County of Ada }
On this 21 day of November , 1990, before me, the undersigned, a Notary
Public In and for said State, personally appeared STEVEN C. SMITH and REBECCA
S. SMITH, husband and wife, known or Identified to me to be the persons whose
names are subscribed to the foregoing instrument and acknowledged to me that they
executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the, day gnd year in this certificate first above written.
Y ,
.�Zd1_12 ✓ L / -/'11
Notary Public fdr Idaho
Residing at Boise , Idaho
My Commission Expires: 11/4/91
(SEAL)
STATE OF IDAHO )
ss:
County of Ada )
On this 21 day of November , 1990, before me; the undersigned, a
Notary Public in and for said State, personally appeared HAROLD R. BUNDERSON
and MARY K. BUNDERSON, husband and wife, known or identified to me to be the
persons whose names are subscribed to the foregoing instrument and acknowledged
to me that they executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
�1
'•(SEAL) .
DECLARATION OF COVENANTS - 25
Nota Public for`ldaho )
Residing at Boise Idaho
My Commission Expires: 11/4/91
STATE OF IDAHO )
ss:
County of Ada )
On this 21 day of November , 1990, before me, the undersigned, a
Notary Public in and for said State, personally appeared LILLIE MAY WEAST, known
or identified to me to be the person whose name is subscribed to the foregoing
instrument..and acknowledged to me that she executed the same.
lid; �VIT_IESS WHEREOF, I have hereunto set my hand and affixed my official
..:.seal .the day'•and year in this certificate first above written.
Notary Public for Idaho --
Residing at Boise Idaho
(SEAL) My Commission Expires: 11/4/91
STATE OF IDAHO )
ss:
County of Ada )
On this 2L-41 day of NJMcJ, 1990, before me, the undersigned,
a Notary Public in and for said State, personally appeared SPREGG E. ROUNDY and
,JOYCE B. ROUNDY, husband and wife, known or identified to me to be the persons
whose names are subscribed to the foregoing Instrument and acknowledged to me
that they executed the same.
1N WITNESS WHEREOF, I have h reunto set y and and affixed my official
seal the day and year in this certificate fiirst above Y�rittgn.
-_
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LAG �f
(SEAL) ��•r. •,:
OV
IVA
efttc"Vt
Residing at
My Commission
i •
.In'!
rj (32
DECLARATION OF CO
Idaho
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