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DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS.
FOR
BEAR CREEK SUBDIVISION
THIS MASTER DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR BEAR
CREEK SUBDIVISION is made effective as of the day of 2000, by Bear Creek, LLC, a
limited liability company, ("Grantor" and "Class B Member").
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TABLE OF CONTENTS
Page
ARTICLE I: RECITALS ................................................................. 1
1.1 Property Covered ..................................................... 1
1.2 Residential Development ................................................ 1
1.3 Purpose of Declaration ................................................. 1
ARTICLE II: DECLARATION ............................................................ 1
ARTICLE III: DEFINITIONS ..........................;..:............................... 1
3.1
3.2
3.3
3.4
3.5
3.6
3.7
3.8
3.9
3.10
3.11
3.12
3.13
3.14
3.15
3.16
3.17
3.18
3.19
3.20
3.21
3.22
3.23
3.24
3.25
ARTICLE IV
4.1
"Architectural Committee" ..........:: .................................. .
"Articles" ......................:.....................................
..Assessments" ........................................................
..Association" .........................................................
..Association Rules" ....................................................
"Board" ........................ ...................................
"BuildingLot" ........................................................
"Bylaws" ................................ ..........................
"Common Area" ...... .:..... .................................
"Declaration" ..........'......... .................................
..Grantor" ...................... ..................................
..Improvement" ............. ...................................
"Limited Assessment" ..........:,..' .................................... .
..Association" ................:.::':....................................
"Member" ....................:::::..................................
..Owner" .......................::...................................
..Person" .. .............:..:....................................
"Plat" .....:... ......................................................
..Property.. .. ....................................................
"Ridenbaugh Canal." ...................................................
"Re>?ular Assessment" ................................................. .
"SpeciaLAssessment" ...................................................
"Supplemental Declaration" ............................................. .
"Bear Creek Subdivision Common Area" ................................... .
"Bear Creek Subdivision" ................................................
GENERAL AND SPECIFIC RI=STRICTIONS
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Structures -Generally .................................................. 3
4.1.1 Use. Size and Height of Dwelling Structure .......................... 3
4.1.2 Architectural Committee Review .................................. 3
4.1.3 Setbacks and Height ........................................... 4
4.1.4 Accessory Structures ........................................... 4
4.1.5 Driveways ................................................... 4
4.1.6 Mailboxes ................................................... 4
4.1.7 Fencing ..................................................... 4
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4.1.8 Li1?htin>; ..................................................... 4
4.1.9 Garages ..................................................... 4
4.2 Antennae ........................................................... 4
4.3 Insurance Rates ....................................................... 4
4.4 No Further Subdivision ................................................. 4
4.5 Signs ............................................................... 5
4.6 Nuisances ........................................................... 5
4.7 Exterior Maintenance: Owner's Obligations ................................. 5
4.8 Gradin>;and Drainage .................................................. 5
4.9 No Hazardous Activities ................................................ 5
4.10 Unsi>;htly Articles ..................................................... 5
4.11 No Temporary Structures ................................................ 6
4.12 No Unscreened Boats, Campers and Other Vehicles ........................... 6
4.13 Sewage Disposal Systems .............. . ................................ 6
4.14 No Mining or Drilling .................................................. 6
4.15 Energy Devices. Outside ................................................ 6
4.16 Vehicles ................... ......... ............................ 6
4.17 Animals/Pets ......................................................... 6
4.18 LandscapinQ .......................................................... 6
4.19 Exemption of Grantor .................................................. 7
4.20 Water Rights Appurtenant to Subdivision Lands ...:.............. ............ 7
4.21 Commencement of Construction ..........:............................... 7
4.22 Roof Material ... .... .............................................. 7
ARTICLE V: BEAR CREEK SUBDIVISION HOMEOWNERS' ASSOCIATION ........................ 8
5.1 Organization of Bear Creek Subdivision Homeowners' Association ............... 8
5.2 Membership ......................................................... 8
5.3 Votin>; ..........................:.................................... 8
5.3.1 Class A Members .............................................. 8
5.3.2 Class B Members .............................................. 8
5.4 Board of Directors and Officers ........................................... 8
5.5 Power and Duties of the Association ....................................... 8
5.5.1 Powers ..:................................................... 8
5.5.1.1 Assessments .......................................... 9
5:5.1.2 Right of Enforcement ................................... 9
5.5.1.3 Dele>;ation of Powers ................................... 9
5.5.1.4 Association Rules ...................................... 9
5.5.1.5 Emergency Powers .................................... 9
5.5.1.6 Licenses, Easements and Ri>;hts-of-Way ..................... 9
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5.5.2 Duties ..................................................... 10
5.5.2.1 Operation and Maintenance of Bear Creek
Subdivision Common Area .................... 10
5.5.2.2 Reserve Account ..................................... 10
5.5.2.3 Maintenance of Berms, Retaining Walls and Fences .......... 10
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5.5.2.4 Taxes and Assessments ................................ 10
5.5.2.5 Water and Other Utilities ............................... 11
5.5.2.6 Insurance .......................................... 11
5.5.2.7 Rule Makin>? ........................................ 11
5.5.2.8 Newsletter .......................................... 11
5.5.2.9 Architectural Committee ............................... 12
5.5.2.10 Enforcement of Restrictions and Rules ..................... 12
5.6 Personal Liability ..................................................... 12
5.7 Budgets and Financial Statements ........................................ 12
5.8 Meetings of Association ................................................ 12
ARTICLE VI: LIGHT MAINTENANCE OF STORM WATER FACILITIES .......................... 12
ARTICLE VII: RIGHTS TO COMMON AREAS ............................................. 13
7.1 Use of Bear Creek Subdivision Common Area ............................... 13
7.2 Designation of Common Area ........................................... 13
7.3 Delegation of Right to Use .............................................. 13
7.4 Dama>;es ........................................................... 13
ARTICLE VIII: PRESSURIZED IRRIGATION ............................................... 13
8.1 Irrigation District Service .... . .:........................................ 13
8.2 No Private System .................................................... 13
8.3 Water Master ..........................:............................. 14
ARTICLE IX: ASSESSMENTS .......................:................................... 14
9.1 Covenant to Pav Assessments ........................................... 14
9.1.1 Assessment Constitutes `Lien .................................... 14
9.1.2 Assessment is Personal 0bli>;ation ................................ 14
9.2 Re>;ular Assessments .................................................. 14
9.2.1 Purpose of Re>;ular Assessments ................................. 14
9.2.2 Computation of Re>;ular Assessments .............................. 14
9.2.3 Amounts Paid by Owners ...................................... 14
9.3 ~ecial Assessments .................................................. 15
9.3.1 Purpose and Procedure ........................................ 15
9.3.2 Consistent Basis of Assessment .................................. 15
9.4 Limited Assessments .................................................. 15
9.5 Uniform Rate of Assessment ............................................ 15
9.6 Assessment Period .................................................... 15
9.7 Notice and Assessment Due Date ........................................ 15
9.8 Estoppel Certificate ................................................... 15
9.9 Special Notice and Ouorum Requirements . . ............................... 15
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ARTICLE X: ENFORCEMENT OF ASSESSMENTS; LIENS ..................................... 16
10.1 RiQhttoEnforce ...................................................... 16
10.2 Assessment Liens .................................................... 16
10.2.1 Creation ................................................... 16
10.2.2 Claim of Lien ............................................... 16
10.3 Method of Foreclosure ................................................ 16
10.4 Required Notice ..................................................... 16
10.5 Subordination to Certain Trust Deeds ..................................... 17
10.6 Rights of Mortgagees .................................................. 17
ARTICLE XI: INSPECTION OF ASSOCIATION'S BOOKS AND RECORDS ....................... 17
11.1 Member's Rif;ht of Inspection ........................................... 17
11.2 Rules Regardin>; Inspection of Books artd Records ............................ 17
11.3 Director's Rights of Inspection ........................................... 17
ARTICLE XII: ARCHITECTURAL COMMITTEE ............................................. 17
12.1 Creation ........................................................... 17
12.2 Grantor's Right of Appointment .......................................... 18
12.3 Review of Proposed Construction ........................................ 18
12.3.1 Conditions on Approval ....................................... 18
12.3.2 Architectural Committee Rules and Fees ........................... 18
12.3.3 Detailed Plans ............................................... 18
12.3.4 Architectural Committee Decisions ............................... 18
12.4 Meetings of the Architectural Committee ................................... 19
12.5 No Waiver of E,_wture Approvals .......................................... 19
12.6 Compensation of Members ............................................. 19
12.7 Inspection of'Work ................................................... 19
12.8 Non-Liability of Architectural Committee Members ........................... 19
12.9 Variances ........................................................... 20
ARTICLE XIII: EASEMENTS .....::..................................................... 20
13.1 Easements of Encroachment ............................................. 20
13.2 Easements of Access .................................................. 20
13.3 Drainaf?e and Utilitv Easements .......................................... 20
13.3.1 Im__provement of Draina>;e and Utilitv Easement Areas ................. 20
13.4 Rights and Duties Concerning Utilitv Easements ............................. 21
13.5 Driveway Easements .................................................. 21
13.6 Disputes as to Sharin;; of Costs .......................................... 21
13.7 General Landscape Easement ........................................... 21
13.8 Overhang Easement .................................................. 21
13.9 Maintenance and Use Easement Between Walls and Lot Lines .................. 21
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ARTICLE XIV: MISCELLANEOUS ....................................................... 22
14.1 Term .............................................................. 22
14.2 Amendment ......................................................... 22
14.2.1 By Grantor .................................................. 22
14.2.2 By Owners ................................................. 22
14.2.3 Effect of Amendment .......................................... 22
14.3 Mort;;aQe Protection .................................................. 22
14.4 Notices ............................................................ 22
14.5 Enforcement and Non-Waiver ........................................... 23
14.5.1 Ri>?ht of Enforcement .......................................... 23
14.5.2 Violations and Nuisances ....................................... 23
14.5.3 Violation of Law .........:................................... 23
14.5.4 Remedies Cumulative ......................................... 23
14.5.5 Non-Waiver ................................................ 23
14.6 Interpretation ........................................................ 23
14.6.1 Restrictions Construed Together ................................. 23
14.6.2 Restrictions Severable ......................................... 23
14.6.3 Sin>;ular Includes Plural ........................................ 23
14.6.4 Captions ....:.............................................. 23
14.7 Successors and Assiens ................................................ 23
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY ............................................. 25
EXHIBIT B
LEGAL DESCRIPTION OF
BEAR CREEK SUBDIVISION COMMON AREA ...................................... 26
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ARTICLE I: RECITALS
1.1 Property Covered. The property potentially subject to this Declaration of Covenants,
Conditions and Restrictions for Bear Creek Subdivision ("Declaration") is the Property legally described in
Exhibit A attached hereto and made a part hereof (the "Property"). Grantor intends to develop the Property in
stages.
1.2 Residential Development. Bear Creek Subdivision is a residential development, which
Grantor currently intends to develop in accordance with existing development approvals obtained by the
City of Meridian and documented in Meridian City files or any other development plan(s) for
which Grantor may from time to time obtain approval. Certain portions' of the Property may be developed
for quality detached single-family residential homes. The Property may contain parcels of Common Area,
including streams and canals, public and/or private open space, park areas, landscaping, recreational.
facilities, private streets, drives, and other amenities and facilities.. Any development plans or schemes for
the Property in existence prior to or following the effective date'of this Declaration are subject to change at
any time by Grantor, and impose no obligation on Grantor as to how the Property is to be developed or
improved.
1.3 Purpose of Declaration. The purpose of this Declaration is to set forth the basic
restrictions, covenants, limitations, easements, conditions and equitable servitudes (collectively
"Restrictions") that will apply to the entire development and use of all portions of the Property. The
Restrictions are designed to preserve the Property's value, desirability and attractiveness, to ensure a well
integrated, high-quality development, and to guarantee adequate maintenance of the Common Area, and the
Improvements located thereon in a cost effective and administratively efficient manner.
ARTICLE It: DECLARATION
Grantor hereby declares that the Property, and each lot, parcel or portion thereof, is and/or shall be
held, sold, conveyed, encumbered, hypothecated, leased, used, occupied and improved subject to the
following terms, covenants, conditions, easements 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 the
Property, and to enhance the value; desirability and attractiveness of the Property. The terms, covenants,
conditions, easements and restrictions set forth herein: shall run with the land constituting the Property, and
with each estate therein; and shall be binding upon all persons having or acquiring any right, title or interest
in the Property or any lot, parcel or portion thereof; shall. inure to the benefit of every lot, parcel or portion of
the Property and any interest therein; and-shall inure. to the benefit of and be binding upon Grantor,
Grantor's successors in interest'and each, grantee or Owner and such grantee's or Owner's respective
successors in interest, and may be enforced by Grantor, by any Owner or such Owner's successors in
interest, or by the Association.
Notwithstanding the foregoing, no provision of this Declaration shall be construed as to prevent or
limit Grantor's right to complete .development of the Property and to construct improvements thereon, nor
Grantor's right to maintain model. homes; construction, sales or leasing offices or similar facilities on any
portion of the Property, including the Common Area or any public right-of-way, nor Grantor's right to post
signs incidental to construction, sales or leasing.
ARTICLE III: DEFINITIONS
3.1 "Architectural Committee" shall mean the committee created by the Grantor or an
Association pursuant to Article XII hereof.
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3.2 "Articles" shall mean the Articles of Incorporation of an Association or other
organizational or charter documents of an Association.
3.3 "Assessments" shall mean those payments required of Owners, Association Members,
including Regular, Special and Limited Assessments of any Association as further defined in this Declaration.
3.4 "Association" shall mean the Association.
3.5 "Association Rules" shall mean those rules and regulations promulgated by the
Association governing conduct upon and use of the Property under the jurisdiction or control of the
Association, the imposition of fines and forfeitures for violation of Association Rules and regulations, and
procedural matters for use in the conduct of business of the Association.
3.6 "Board" shall mean the Board of Directors or other governil~g board or individual, if
applicable, of the Association.
3.7 "Building Lot" shall mean one or more lots within the Property as specified or shown on
any Plat and/or by Supplemental Declaration, upon which Improvements may be constructed. The term
"Building Lot" shall include single-family residential lots, but shall not include the Common Area.
3.8 "Bylaws" shall mean the Bylaws of an Association.
3.9 "Common Area" shall mean any or all parcels of Bear Creek Subdivision Common Area,
and shall include,. withouttimitation, all such parcels that are designated as private streets or drives, common
open space, common landscaped areas.
3.10 "Declaration" shall mean this Declaratigri'as it may be amended from time to time.
3.11 "Grantor" shall mean Bear Creek, LLC, or its successor in interest, or any person or entity
to whom the rights under this Declaration are expressly transferred by Bear Creek, LLC or its successor.
3.12 "Improvement" shall mean anystructure~ facility or system, or other improvement or
object, whether permanent or temporary, which is erected; constructed or placed upon, under or in any
portion of the Property, including but not. limited to buildings, fences, streets, drives, driveways, sidewalks,
bicycle paths, curbs, landscaping, wildlife habitat improvements, signs, lights, mail boxes, electrical lines,
pipes, pumps, ditches, recreational facilities, and fixtures of any kind whatsoever.
3.13 "Limited Assessment" shall mean a charge against a particular Owner and such Owner's
Building Lot, directly attributable to the O~+vner, equal to the cost incurred by the Association for corrective
action performed pursuant to the provisions of this Declaration or any Supplemental Declaration, including
interest thereon as provided in this Declaration or a Supplemental Declaration.
3.14 "Association" shall mean the limited liability company, its successors and assigns,
established by Grantor to exercise thee-powers and to carry out the duties set forth in this Declaration or any
Supplemental Declaration. Grantor shall have the power, in its discretion, to name the Association the "
Bear Creek Subdivision Homeowners' Association, Inc.", or any similar name which fairly reflects its
purpose.
3.15 "Member" shall mean each person or entity holding a membership in the Association.
3.16 "Owner" shall mean the person or other legal entity, including Grantor, holding fee
simple interest of record to a Building Lot which is a part of the Property, and sellers under executory
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contracts of sale, but excluding those having such interest merely as security for the performance of an
obligation.
3.17 "Person" shall mean any individual, partnership, corporation or other legal entity.
3.18 "Plat" shall mean any subdivision plat covering any portion of the Property as recorded at
the office of the County Recorder, Ada County, Idaho, as the same may be amended by duly recorded
amendments thereof.
3.19 "Propertv" shall mean those portions of the Property described on Exhibit A attached
hereto and incorporated herein by this reference, including each lot, parcel and portion thereof and interest
therein, including all water rights associated with or appurtenant to such property.
3.20 "Ridenbaugh Canal" shall mean that certain real property in which the Nampa and
Meridian Irrigation District holds an interest, which real property is identified on the Plat.
3.21 "Re>;ular Assessment" shall mean the portion of the cost of maintaining, improving,
repairing, managing and operating the Common Areas and all Improvements located thereon, and the other
costs of an Association which is to be levied against the Property of and paid by each Owner to the
Association, pursuant to the terms hereof or the terms of this Declaration or a Supplemental Declaration.
3.22 "Special Assessment" shall mean the portion of the costs of the capital improvements or
replacements, equipment purchases and replacements or shortages in Regular Assessments which are
authorized and to be paid by each Owner to the Association pursuant to the provisions of this Declaration or
a Supplemental Declaration.
3.23 "Supplemental Declaration" shall mean any supplemental declaration including additional
covenants, conditions and restrictions that might be adopted with respect to any portion of the Property.
3.24 "Bear Creek Subdivision Common Area" shall mean all real property in which the
Association holds an interest or which is held or maintained, permanently or temporarily, for the common
use, enjoyment and benefit of the entire Bear Creek Subdivision and each Owner therein, which real
property is legally described in Exhibit B attached hereto and made a part hereof. Bear Creek Subdivision
Common Area may be established-from-:time to time by Grantor on any portion of the Property by describing
it on a plat, by granting or reserving it in a deed or other instrument, or by designating it pursuant to this
Declaration or any Supplemental Declaration. Bear Creek Subdivision Common Area may include
easement and/or license rights.
3.25 "Bear Creek Subdivision" shall mean the Property.
ARTICLE IV: GENERAL AND SPECIFIC RESTRICTIONS
4.1 Structures -Generally. All structures are to be designed, constructed and used in such a
manner as to promote compatibility between the types of use contemplated by this Declaration.
4.1.1 Use, Size and Height of Dwelling Structure. All Building Lots shall be used
exclusively for single-family residential purposes. No Building Lot shall be improved, except with a
single-family dwelling unit or structure. No business or home occupation shall be conducted from
said dwelling unit or structure. "A" Lots: minimum square footage 2,400 sq. ft., single level, 1,600
sq. ft. minimum on main level on multi-level homes or as determined by ACC Committee, 25 year
Architectural Shingles, Weathered Wood in color, or better as approved by ACC. "B" Lots:
minimum square footage 1,700 sq. ft., 20 year Architectural, Weathered Wood in color, or better as
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approved by ACC. "C" Lots: minimum square footage 1,400 sq. ft., Weathered Wood in color.
Brick and stucco accents required unless waived by ACC because of other offsetting architectural
features.
4.1.2 Architectural Committee Review. No Improvements which will be visible
above ground or which will ultimately affect the visibility of any above ground Improvement shall
be built, erected, placed or materially altered on or removed from the Property unless and until the
building plans, specifications, and plot plan have been reviewed in advance by the Architectural
Committee and the same have been approved in writing. The review and approval or disapproval
may be based upon the following factors: design and style elements, mass and form, topography,
setbacks, finished ground elevations, architectural symmetry, drainage, color, materials, physical or
aesthetic impacts on other properties, including Common Areas, artistic conformity to the terrain
and the other Improvements on the Property, and any and all other factors which the Architectural
Committee, in its reasonable discretion, deem relevank. Said requirements as to the approval of the
architectural design shall apply only to the exterior appearance of the Improvements. This
Declaration is not intended to serve as authority for the Architectural Committee to control the
interior layout or design of residential structures except to the extent incidentally necessitated by
use, size and height restrictions.
4.1.3 Setbacks and I-ieieht. No residential or other structure shall be placed nearer to
the Building Lot lines or built higher than permitted'by the Plat in which the Building Lot is located,
by any applicable zoning restriction, by any conditional use permit, or by a building envelope
designated either by Grantor or the applicable Architectural Committee whichever is more
restrictive.
4.1.4 Accessory Structures. Detached garages shall be allowed if in conformity with
the provisions of this Declaration, and as approved by the applicable Architectural Committee.
Garages and storage sheds shall be constructed of, and roofed with, the same materials, and with
similar colors and design, as the residential structure on the applicable Building Lot. No
playhouses, playground equipment, pools, pool sl-ides, diving boards, hot tubs, spas, or similar items
shall extend higher than five (5) feet above the finished graded surface of the Building Lot upon
which such item(s) are located unless approved in advance.
4.1.5 Driveways. All access driveways shall have a wearing surface of asphalt,
concrete, or other hard surface materials, and shall be properly graded to assure proper drainage.
4.1.6 ailboxes. All mailboxes will be of consistent design, material and coloration
and shall be located on or adjoining Building Lot lines at places designated by Grantor or the
Architectural Committee.
4.1J ' Fencine. No fence, hedge or boundary wall situated anywhere upon a Building
Lot shall have a height greater than six (6) feet above the finished graded surface of the Building Lot
or Common Area upon which such fence, hedge, or boundary wall is situated. Any fence or
boundary wall constructed on or near the lot line common to one or more Building Lots shall be
constructed as a "good neighbor" fence or wall. No fence shall be constructed so as to extend
toward the front of the Building Lot past the front plane of the dwelling structure constructed
thereon, or closer than ten (10) feet to any side Building Lot line of a corner of a Building Lot
adjacent to a dedicated street and shall be in compliance with applicable Meridian City ordinances.
All fencing and boundary walls constructed on any Building Lot shall be of compatible style and
material to that other fencing constructed adjacent to or abutting Common Areas, public and private
streets, and shall otherwise be as approved by the applicable Architectural Committee.
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4.1.8 Li htin .Exterior lighting, including flood lighting, shall be part of the
architectural concept of the Improvements on a Building Lot. Fixtures, standards and all exposed
accessories shall be harmonious with building design, and shall be as approved by the applicable
Architectural Committee. Lighting shall be restrained in design, and excessive brightness shall be
avoided.
4.1.9 Gara>;es. Each dwelling unit shall have an attached or detached fully enclosed
garage adequate for a minimum of two (2), and a maximum of five (5) standard size automobiles.
No carports shall be allowed.
4.2 Antennae. No exterior radio antenna, television antenna, satellite dish antenna or other
antenna of any type shall be erected or maintained on the Property unless it is located or screened in a
manner acceptable to the applicable Architectural. Committee.
4.3 Insurance Rates. Nothing shall be done or kept on any Building Lot which will increase
the rate of insurance on any other portion of the Property without the approval of the Owner of such other
portion, nor shall anything be done or kept on the Property or a Building Lot which would result in the
cancellation of insurance on any property owned or managed by any such Association or which would be in
violation of any law.
4.4 No Further Subdivision. No Building Lot may be further subdivided.
4.5 Sians. No sign of any kind shall be displayed to the public view without the approval of
the applicable Architectural Committee, except: (1) such-signs as may be used by Grantor in connection
with the development of the Property and sale, of"Building Lots; (2) temporary signs naming the contractors,
the architect, and the lending institution for a particular construction operation; (3) such signs identifying
Bear Creek Subdivision, or informational signs, of customary and reasonable dimensions as prescribed by the
Architectural Committee may be displayed on or from the Common Area; and (4) one (1) sign of customary
and reasonable dimensions as prescribed by the Architectural Committee as may be displayed by an Owner
other than Grantor on or from a Building Lot advertising the residence for sale or lease. A customary "for
sale" or "for lease" sign not more than-three (3)-feet by two {2) feet shall not require Architectural Committee
approval. Without limiting the foregoing, no sign shall be placed in the Common Area without the written
approval of the applicable Architectural Committee.
4.6 Nuisances. No rubbish or debris of any kind shall be placed or permitted to accumulate
anywhere upon the Property, ),ncluding Common Area or vacant Building Lots, and no odor shall be
permitted to arise therefrom sous to render the Property or any portion thereof unsanitary, unsightly,
offensive or detrimental to the Property or to its occupants, or to any other property in the vicinity thereof or
to its occupants. No noise or other nuisance shall be permitted to exist or operate upon any portion of the
Property so as to be offensive or detrimental to the Property or to its occupants or to other property in the
vicinity or to its occupants; Without limiting'the generality of any of the foregoing provisions, no exterior
speakers, horns, whistles, bells or other sound devices (other than security devices used exclusively for
security purposes which have been approved by the Association), flashing lights or search lights, shall be
located, used or placed on the Property without the prior written approval of the Association.
4.7 Exterior Maintenance: Owner's Obligations. No Improvement shall be permitted to fall
into disrepair, and each Improvement shall at all times be kept in good condition and repair. In the event
that any Owner shall permit any Improvement, including trees and landscaping, which is the responsibility of
such Owner to maintain, to fall into disrepair so as to create a dangerous, unsafe, unsightly or unattractive
condition, or damages property or facilities on or adjoining their Building Lot which would otherwise be the
Associations' responsibility to maintain, the Board of the Association, upon fifteen (15) days prior written
notice to the Owner of such property, shall have the right to correct such condition, and to enter upon such
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Owner's Building Lot for the purpose of doing so, and such Owner shall promptly reimburse the Association,
as the case may be, for the cost thereof. Such cost shall be a Limited Assessment and shall create a lien
enforceable in the same manner as other Assessments set forth in Article IX of this Declaration. The Owner
of the offending property shall be personally liable, and such Owner's property may be subject to a
mechanic's lien for all costs and expenses incurred by the Association in taking such corrective acts, plus all
costs incurred in collecting the amounts due. Each Owner shall pay all amounts due for such work within
ten (10) days after receipt of written demand therefor, or the amounts may, at the option of the Board, be
added to the amounts payable by such Owner as Regular Assessments. Each Owner shall have the remedial
rights set forth herein if the applicable Associations fail to exercise their rights within a reasonable time
following written notice by such Owner.
4.8 Grading and Draina>?e. A site plan indicating the proposed grading and.. drainage of a Lot
must be approved by the ACC before any construction is initiated. Lot grading shall be kept to a minimum
and Buildings are to be located for preservation of the existing grade(s). Builder is expressly responsible to
ensure proper drainage and run off from said Building Lot.
4.9 No Hazardous Activities. No activities shat! be conducted on the Property, and no
Improvements constructed on any property which are or might be unsafe or hazardous to any person or
property.
4.10 Unsi;?htly Articles. No unsightly articles shall be permitted to remain on any Building Lot
so as to be visible from any other portion of the Property. Without limiting the generality of the foregoing,
refuse, garbage and trash shall be kept at all times in such containers and in areas approved by the applicable
Architectural Committee. No clothing or fabrics shall be hung, dried or aired in such a way as to be visible
to other property, and no equipment, heat pumps; compressors, containers, lumber, firewood. grass, shrub or
tree clippings, plant waste, metals, bulk material,-"scrap, refuse or trash shall be kept, stored or allowed to
accumulate on any Building Lot except within an enclosed structure or as appropriately screened from view.
No vacant residential structures shall be used for the storage of building materials.
4.11 No Temoorary Structures. No house trailer, mobile home, tent (other than for short term
individual use), shack or other temporary building, improvement or structure shall be placed upon any
portion of the Property, except temporarily as maybe required by construction activity undertaken on the
Property.
4.12 No Unscreened Boats. Campers and Other Vehicles. No boats, trailers, campers, all-
terrain vehicles, motorcycles, recreational vehicles, bicycles, dilapidated or unrepaired and unsightly
vehicles or similar equipment shall be Placed upon any portion of the Property (including, without limitation,
streets, parking areas and driveways)' unless the same are enclosed by a structure concealing them from view
in a manner approved by the applicable Architectural Committee. To the extent possible, garage doors shall
remain closed at all times.
4.1.3 Sewage Disposal-Systems. No individual sewage disposal system shall be used on the
Property. Each Owner shall connect the appropriate facilities on such Owner's Building Lot to the Meridian
City Sewer System and pay all charges assessed therefor.
4.14 No Minin>; or Drilling. No portion of the Property shall be used for the purpose of
mining, quarrying, drilling, boring or exploring for or removing water, oil, gas or other hydrocarbons,
minerals, rocks, stones, sand, gravel or earth. This paragraph 4.16 shall not prohibit exploratory drilling or
coring which is necessary to construct a residential structure or Improvements.
4.15 Energy Devices. Outside. No energy production devices, including but not limited to
generators of any kind and solar energy devices, shall be constructed or maintained on any portion of the
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Property without the written approval of the applicable Architectural Committee, except for heat pumps
shown in the plans approved by the Architectural Committee. This paragraph 4.17 shall not apply to passive
solar energy systems incorporated into the approved design of a residential structure.
4.16 Vehicles. The use of all vehicles, including but not limited to trucks, automobiles,
bicycles, motorcycles and snowmobiles, shall be subject to all Association Rules, which may prohibit or limit
the use thereof within Bear Creek Subdivision. No on-street parking shall be permitted except where
expressly designated for parking use. No parking bays shall be permitted in any side, front or backyard.
Vehicles parked on a driveway shall not extend into any sidewalk or bike path or pedestrian path.
4.17 Animals/Pets. No animals, birds, insects, pigeons, poultry or livestock shall be kept on
the Property unless the presence of such creatures. does not constitute a nuisance. This paragraph 4:17 does
not apply to the keeping of up to two (2) domesticated dogs, up to two (2) domesticated cats, and other
household pets which do not unreasonably bother or constitute a nuisance to others. Without limiting the
generality of the foregoing, consistent and/or chronic barking by dogs shall be considered a nuisance. Each
dog in Bear Creek Subdivision shall be kept on a leash, curbed, and otherwise conkralled at all times when
such animal is off the premises of its owner. Such owner shall clean up any animal defecation immediately
from the Common Area or public right-of-way. Failure to do so may result; at the Board's discretion, with a
Limited Assessment levied against such animal owner. The construction of dog runs or other pet enclosures
shall be subject to applicable Architectural Committee approval, shall be appropriately screened, and shall
be maintained in a sanitary condition. Dog runs or other pet enclosures shall be placed a minimum of ten
(10) feet from the side and/or rear Building Lot line, shall not be placed-in any front yard of a Building Lot,
and shall be screened from view so as not to be visible from Common Area or an adjacent Building Lot.
4.18 Landscaping. The Owner of any Building Lot shall-sod the front and the side yards and
shall seed the back yard and landscape such Building Lot in conformance with the landscape plan approved
by the Association, and as approved by the applicable Architectural Committee, within sixty (60) days after
said Owner shall occupy the dwelling structure on said Building Lot, weather permitting. Prior to
construction of Improvements, the Owner (or any Association to which such responsibility has been
assigned) shall provide adequate irrigation and maintenance of existing trees and landscaping, shall control
weeds, and maintain the Owner's (or Association's) property in a clean and safe condition free of debris or
any hazardous condition. All trees located on common Building Lot lines shall be the joint responsibility of
the adjoining Building Lot owners:. All landscaped Common Areas shall be irrigated by an underground
sprinkler system.
The Board and/or applicable Architectural Committee may adopt rules regulating landscaping
permitted and required. In the event that any Owner shall fail to install and maintain landscaping in
conformance with such rules or shall allow such Owner's landscaping to deteriorate to a dangerous, unsafe,
unsightly or unattractive condition, the Board, upon fifteen (15) days' prior written notice to such Owner,
shall have the right to correct such condition -and to enter upon such Owner's property for the purpose of
doing so, and such Owner shall promptly reimburse the Association for the cost thereof. Such cost shall be a
Limited Assessment and shall create a lien enforceable in the same manner as other Assessments as set forth
in Article IX.
Following commencement of any construction of any Improvement, construction shall be diligently
pursued and completed as soon as reasonably practical. All landscaping on a Building Lot, unless otherwise
specified by the applicable Architectural Committee, shall be completed as soon as reasonably practical
following completion of the residential structure on such Building Lot. The initial landscaping shall include,
as a minimum, sod in the front and side yards, sod or grass seeded in the rear yards, two (2) flowering trees
of at least two inch (2") caliper or one (1) pine tree at least six feet (6') in height and one (1) flowering tree of
at least two inch (2") caliper in the front yard, three (3)-five (5) gallon plants and five (5)-one (1) gallon shrubs
in the front yard. The use of berms and sculptured planting areas are encouraged.
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4.19 Exemption of Grantor. Nothing contained herein shall limit the right of Grantor to
subdivide or resubdivide any portion of the Property, to grant licenses, to reserve rights-of--way and
easements with respect to Common Area to utility companies, public agencies or others, or to complete
excavation, grading and construction of Improvements to and on any portion of the Property owned by
Grantor, or to alter the foregoing and its construction plans and designs, or to construct such additional
Improvements as Grantor deems advisable in the course of development of the Property so long as any
Building Lot in the Property remains unsold. Such right shall include, but shall not be limited to, erecting,
constructing and maintaining on the Property such structures and displays as may be reasonably necessary
for the conduct of Grantor's business of completing the work and disposing of the same by sales lease or
otherwise. Grantor shall have the right at any time prior to acquisition of title to a Building Lot by a
purchaser from Grantor to grant, establish and/or reserve on that Building Lot additional licenses,
reservations and rights-of-way to Grantor, to utility companies, or to others as may. from time to time be
reasonably necessary to the proper development and disposal of the Property. Grantor may use any
structures owned by Grantor on the Property as model home complexes or real estate sales or leasing offices.:
Grantor need not seek or obtain Architectural Committee approval of any Improvement constructed or
placed by Grantor on any portion of the Property owned by Grantor. The rights of Grantor hereunder may
be assigned by Grantor to any successor in interest in connection with Grantor's interest in any portion of the
Property, by an express written assignment recorded in the Office of!the Ada County Recorder.
4.20 Water Rif?hts Appurtenant to Subdivision Lands.. Within 120 days of the date of the
recording of this Declaration, Grantor shall transfer from the Property subject to this Declaration, and within
the boundaries of an irrigation entity, as defined in said Section 31-3805, Idaho Code, all water rights and
assessment obligations appurtenant to the Property to the Association.
4.21 Commencement of Construction. Any Owner of a, Building Lot shall, within a period of
one (1) year following the date of purchase of a Building Lot from Grantor, commence the construction of a
dwelling structure in compliance with the restrictions herein, and such construction shall be completed
within six (6) months thereafter. The term "commence the construction" as used in this paragraph 4.21, shall
require actual physical construction activities upon such dwelling structure upon such Building Lot.
4.22 Roof Material. Roofs shall be finished with twenty-five (25) year architectural style
shingles to be Weathered Wood in color, or other color that may be approved in advance by the
Architectural Control Committee.
ARTICLE V: BEAR CREEK SUBDIVISION HOMEOWNERS' ASSOCIATION
5.1 Organization of Bear Creek Subdivision Homeowners' Association. Bear Creek
Subdivision Homeowners' Association, Ir1c. ("Association") shall be initially organized by Grantor as a
limited liability company under the provisions of the Idaho Code relating to general. limited liability
companies and shall be charged with the duties and invested with the powers prescribed by law and set forth
in the Articles, Bylaws-and this Declaration..-Neither the Articles nor the Bylaws shall be amended or
otherwise changed or interpreted so as to be inconsistent with this Declaration.
5.2 Membership. Each Owner, by virtue of being 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. Memberships in the Association shall be appurtenant to the Building Lot or
other portion of the Property owned by such Owner. The memberships in the Association shall not be
transferred, pledged, assigned or alienated in any way except upon the transfer of Owner's title and then only
to the transferee of such title. Any attempt to make a prohibited membership transfer shall be void and will
not be reflected on the books of the Association.
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5.3 Votin>?. Voting in the Association shall be carried out by Members who shall cast the
votes attributable to the Building Lots which they own, or attributable to the Building Lots owned by Grantor.
The number of votes any Member may cast on any issue is determined by the number of Building Lots which
the Member, including Grantor, owns. When more than one person holds an interest in any Building Lot, all
such persons shall be Members but shall share the votes attributable to the Building Lot. For voting
purposes, the Association shall have two (2) classes of Members as described below.
5.3.1 Class A Members. Owners other than Grantor shall be known as Class A
Members. Each Class A Member shall be entitled to cast one (1) vote for each Building Lot owned
by such Class A Member on the day of the vote.
5.3.2 Class B Members. The Grantor shall be known as the Class B Member, and
shall be entitled to five (5) votes for each Building Lot of which Grantor is the Owner: The Class B
Member shall cease to be a voting Member in the Association when the total cumulative votes of
the Class A Members equal or exceed the total votes of-the Class B Members, provided that the Class
B membership shall not cease before the expiration of ten (10) years from the date on which the first
Building Lot is sold to an Owner.
Fractional votes shall not be allowed. In the event that joint Owners are unable to agree among
themselves as to how their vote or votes shall be cast, they shall lose their right to vote on the matter being
put to a vote. When an Owner casts a vote, it will thereafter be presumed conclusively for all purposes that
such Owner was acting with authority and consent of all joint Owners of the Building Lot(s) from which the
vote derived. The right to vote may not be severed or separated from the ownership of the Building Lot to
which it is appurtenant, except that any Owner may; give a revocable proxy, or may assign such Owner's
right to vote to a lessee, mortgagee, beneficiary or contract purchaser of the Building Lot concerned, for the
term of the lease, mortgage, deed of trust or contract. Any sale, transfer or conveyance of such Building Lot
to a new Owner shall operate automatically to transfer the appurtenant voting right to the Owner, subject to
any assignment of the right to vote to a lessee, mortgagee, or beneficiary as provided herein.
5.4 .Board of Directors and Officers. The affairs of the Association shall be conducted and
managed by a Board of Directors ("Board") andsuch officers: as the Board may elect or appoint, in
accordance with the Articles and Bylaws, as the same-may be amended from time to time. The Board of the
Association shall be elected in accordance with the provisions set forth in the Association Bylaws.
5.5 Power and Duties of the Association.
5.5.1 P w rs. The Association shall have all the powers of a corporation organized
under the general corporation laws of the State of Idaho subject only to such limitations upon the
exercise of such powers as are expressly set forth in the Articles, the Bylaws, and this Declaration.
The Association shall have the power to do any and all lawful things which may be authorized,
required or permitted to be done by the Association under Idaho law and under this Declaration,
and the Articles and Bylaws, and to do and perform any and all acts which may be necessary to,
proper for, or incidental to the proper management and operation of the Common Area and the
Declaration's other assets, including water rights when and if received from Grantor, and affairs and
the performance of the other responsibilities herein assigned, including without limitation:
5.5.1.1 Assessments. The power to levy Assessments on any Owner or
any portion of the Property and to force payment of such Assessments, all in accordance
with the provisions of this Declaration. An Association set up fee of $200.00 and a site
clean up fee of $150.00 shall be charged upon the closing of each Building Lot. The
initial annual association fee shall be $100.00 per year, which amount is subject to
change by the Board of Directors of the Association.
DECLARATION - 9
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5.5.1.2 R~ht of Enforcement. The power and authority from time to
time in its own name, on its own behalf, or on behalf of any Owner who consents
thereto, to commence and maintain actions and suits to restrain and enjoin any breach or
threatened breach of this Declaration or the Articles or the Bylaws, including the
Association Rules adopted pursuant to this Declaration, and to enforce by injunction or
otherwise, all provisions hereof.
5.5.1.3 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 to contract for the maintenance, repair, replacement and operation of the
Common Area. Neither the Association nor the members of its Board shall be liable for
any omission or improper exercise by the manager of any such duty or power so
delegated.
5.5.1.4 Association Rules. The power to :adopt, amend and repeal by
majority vote of the Board such rules and regulations as the Association deems
reasonable. The Association may govern the use of the Common Areas, including but not
limited to the use of private streets by the Owners, their families, invitees, licensees,
lessees or contract purchasers; provided, however, that any Association Rules shall apply
equally to all Owners and shall not be inconsistent with this Declaration, the Articles or
Bylaws. A copy of the Association Rules as they may from time to time be adopted,
amended or repealed, shall be mailed or otherwise delivered to each Owner. Upon such
mailing or delivery, the Association Rules shall have the same force and effect as if they
were set forth in and were a part of this Declaration. In the event of any conflict between
such Association Rules and any other provisions of this Declaration, or the Articles or
Bylaws, the provisions of the Association Rules shall be deemed to be superseded by the
provisions of this Declaration, the Articles or the Bylaws to the extent of any such
inconsistency.
5.5.1.5 Emeraency Powers. The power, exercised by the Association or
by any person authorized by;it, to enter-upon any property (but not inside any building
constructed thereon) in the event of any emergency involving illness or potential danger
to life or property or when necessary'in connection with any maintenance or construction.
for which the Association is responsible. Such entry shall be made with as little
inconvenience to the-Owner as practicable, and any damage caused thereby shall be
repaired by the Association.
5:5.1.6, Licenses. Easements and Ril;hts-of-Wav. The power to grant and
convey to any third party such licenses, easements and rights-of-way in, on or under the
Common Area as may be necessary or appropriate for the orderly maintenance,
preservation and enjoyment of the Common Area, and for the preservation of the health,
safety, convenience and the welfare of the Owners, for the purpose of constructing,
erecting, operating or maintaining:
5.5.1.6.1 Underground lines, cables, wires, conduits or
other devices for the transmission of electricity or electronic signals-for lighting,
heating, power, telephone, television or other purposes, and the above ground
lighting stanchions, meters, and other facilities associated with the provisions of
lighting and services; and
DECLARATION - 10
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5.5.1.6.2 Public sewers, storm drains, water drains and
pipes, water supply systems, sprinkling systems, heating and gas lines or pipes,
and any similar public orquasi-public improvements or facilities.
5.5.1.6.3 Mailboxes and sidewalk abutments around such
mailboxes or any service facility, berm, fencing and landscaping abutting
common areas, public and private streets or land conveyed for any public or
quasi-public purpose including, but not limited to, bicycle pathways.
The right to grant such licenses, easements and rights-of-way are hereby expressly
reserved to the Association and may be granted at any time prior to twenty-one (21) years
after the death of the issue of the individuals executing this Declaration on behalf of
Grantor who are in being as of the date hereof.
5.5.2 Duties. In addition to duties necessary and proper to carry out the power
delegated to the Association by this Declaration, and the Articles and Bylaws, without limiting the
generality thereof, the Association or its agent, if any, shall have the authority and the obligation to
conduct all business affairs of the Association and to perform, without limitation, each of the
following duties:
5.5.2.1 Operation and Maintenance of Bear Creek Subdivision Common
Area. Operate, maintain, and otherwise manage or provide for the operation,
maintenance and management of Bear Creek Subdivision Common Area (other than Local
Common Area), including the repair and replacement of property damaged or destroyed
by casualty loss.
Specifically, the Association shall, at Grantor's sole discretion, operate and
maintain all properties owned by.Grantor which are designated by Grantor for temporary
or permanent use by Members of the Association.
5.5.2.2 Reserve Accourit. Establish and fund a reserve account with a
reputable banking institution or savings and loan association or title insurance company
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.
5.5.2.3 Maintenance of Berms. Retaininf; Walls and Fences. Maintain
the berms, retaining walls, fences and water amenities within and abutting Common Area
and abutting the Ridenbaugh Canal. Maintain the water amenities constructed by Grantor
or Association located in that certain easement in, over and through Building Lots as
shown on the Plat.
5.5.2:4 Taxes and Assessments. Pay all real and personal property taxes
and Assessments separately levied against Bear Creek Subdivision Common Area or
against Bear Creek Subdivision, the Association and/or any other property owned by the
Association. Such taxes and Assessments may be contested or compromised by the
Association, provided, however, that such taxes and Assessments are paid or a bond
insuring payment is posted prior to the sale or disposition of any property to satisfy the
payment of such taxes and Assessments. In addition, the Association shall pay all other
federal, state or local taxes, including income or corporate taxes levied against the
Association, in the event that the Association is denied the status of a tax exempt
corporation.
DECLARATION - 11
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5.5.2.5 Water and Other Utilities. Acquire, provide and/or pay for
water, sewer, garbage disposal, refuse and rubbish collection, electrical, telephone and
gas and other necessary services for Bear Creek Subdivision Common Area, and to
manage for the benefit of Bear Creek Subdivision all water rights and rights to receive
water held by the Association, whether such rights are evidenced by license, permit,
claim, stock ownership or otherwise.
5.5.2.6 Insurance. Obtain insurance from reputable insurance
companies authorized to do business in the State of Idaho, and maintain in effect any
insurance policy the Board deems necessary or advisable, including, without limitation
the following policies of insurance:
5.5.2.6.1 Fire insurance including those risks embraced by
coverage of the type known as the broad form "All Risk" or special extended
coverage endorsement on a blanket agreed amount basis for the full insurable
replacement value of all Improvements, equipment and fixtures located within
Bear Creek Subdivision Common Area.
5.5.2.6.2 Comprehensive public liability insurance insuring
the Board, the Association, the Grantor and the individual grantees and agents
and employees of each of the foregoing against any liability incident to the
ownership and/or use of Bear Creek Subdivision Common Area. Limits of
liability of such coverage shall be as follows: Not less than One Million Dollars
($1,000,000) per person and One Million Dollars ($1,000,000) per occurrence
with respect to personal injury or death, and One Million Dollars ($1,000,000)
per occurrence with respect to property damage.
5.5.2.6.3 Full coverage directors' and officers' liability
insurance with a limit of at least Two Hundred Fifty Thousand Dollars
($250,000).
5.5.2:6:4 Such other insurance, including motor vehicle
insurance and Workmen'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 functions or to insure the Association against any loss from
.malfeasance or dishonesty of any employee or other person charged with the
management or possession of any Association funds or other property.
5.5.2.6.5 The Association shall be deemed trustee of the
interests of all Owners in connection with any insurance proceeds paid to the
Association under such policies, and shall have full power to receive such
Owner's interests in such proceeds and to deal therewith.
5.5.2.6.6 Insurance premiums for the above insurance
coverage shall be deemed a common expense to be included in the Regular
Assessments levied by the Association.
5.5.2.7 Rule Makin. Make, establish, promulgate, amend and repeal
such Association Rules as the Board shall deem advisable.
DECLARATION - 12
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5.5.2.8 Newsletter. If it so elects, prepare and distribute a newsletter on
matters of general interest to Association Members, the cost of which shall be included in
Regular Assessments.
5.5.2.9 Architectural Committee. Appoint and remove members of the
Architectural Committee, subject to the provisions of this Declaration.
5.5.2.10 Enforcement of Restrictions and Rules. Perform such other acts,
whether or not expressly authorized by this Declaration, as may be reasonably advisable
or necessary to enforce any of the provisions of the Declaration, or of the Articles or
Bylaws, including, without limitation, the recordation of any claim of lien with the Ada
County Recorder, as more fully provided herein.
5.6 Personal Liabilitv. No Member of the Board, or member of any committee of the
Association, or any officer of the Association, or the Grantor, or the manager, if any, shall be personally
liable to any Owner, or to any other party, including the Association, for any damage, loss or prejudice
suffered or claimed on the account of any act, omission, error or negligence of the Association, the Board,
the manager, if any, or any other representative or employee of the Association, the Grantor, or the
Architectural Committee, or any other committee, or any officer of the Association, or the Grantor, provided
that such person, upon the basis of such information as may be possessed by such person, has acted in good
faith without willful or intentional misconduct.
5.7 Budgets and Financial Statements. Financial statements for the Association shall be
prepared regularly and copies shall be distributed to each Member of the Association as follows:
5.7.1 A pro forma operating statement: or budget, for each fiscal year shall be
distributed not less than sixty (60) days before the beginning of each fiscal year. The operating
statement shall include a schedule of Assessments received and receivable, identified by the
Building Lot number and the name of the person or entity assigned.
5.7.2 Within thirty (30) days after the close of each fiscal year, the Association 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 annual operating statements reflecting the income and expenditures of
the Association for its last fiscal year. Copies of the balance sheet and operating statement shall be
distributed to each Member within ninety (90) days after the end of each fiscal year.
5.8 Meetings of Association. Each„year the Association shall hold at least one meeting of the
Members, according to the schedule for such meetings established by the Bylaws; provided, that such
meeting shall occur no earlier than April 15 and no later than May 31 each year. Only Members shall be
entitled to attend Association meetings, and all other persons may be excluded. Notice for all Association
meetings, regular or special, shall be given by regular mail to all Members, and any person in possession of a
Building Lot, not less than ten (10) days nor more than thirty (30) days before the meeting and shall set forth
the place, date and hour of the meeting and the nature of the business to be conducted. All meetings shall
be held within the Property or as close thereto as practical at a reasonable place selected by the Board. The
presence at any meeting in person of the Class B Member where there is such a Member, and of the Class A
Members representing Owners holding at least thirty percent (30%) of the total votes of all Class A Members,
shall constitute a quorum. If any meeting cannot be held because a quorum is not present, the Members
present may adjourn the meeting to a time not less than ten (10) days nor more than thirty (30) days from the
time the original meeting was scheduled. A second meeting may be called as the result of such an
adjournment, provided notice is given as provided above. At any such meeting properly called, the presence
of any Member shall constitute a quorum.
DECLARATION - 13
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ARTICLE VI: LIGHT MAINTENANCE OF STORM WATER FACILITIES
Operation and maintenance of the storm water facilities at Bear Creek Subdivision shall be governed
by the operation and maintenance manual of storm drainage system in Bear Creek Subdivision prepared by
Briggs Engineering, Inc. in June, 1998, which manual may be modified from time to time at the direction of
the Board of the Association.
ARTICLE VII: RIGHTS TO COMMON AREAS
7.1 Use of Bear Creek Subdivision Common Area. Every-Owner shall have a right to use
each parcel of Bear Creek Subdivision Common Area, which right shat{ be appurtenant to and shall pass. with
the title to every Building Lot, subject to the following provisions:
7.1.1 The right of the Association to levy and increase Assessments;
7.1.2 The right of such Association to'suspend the voting rights and rights to use of,
or interest in, Common Area by an Owner for any period during which any Assessment or charge
against such Owner's Building Lot remains unpaid; and for a period not to exceed sixty (60) days for
any infraction of the Association Rules; and
7.1.3 The right of the Association to dedicate or transfer all or any part of the
Common Area to any public agency, authority or utility for such purposes and subject to such
conditions as may be permitted by the Articles and Bylaws and agreed to by the Members. No
dedication or transfer of said Common Area shall be effective unless an instrument agreeing to such
dedication or transfer signed by Members representing two-thirds (2/3) of each class of Members has
been recorded.
7.1.4 The right of such Association to prohibit the construction of structures or
Improvements, Improvements on all Common Areas.
7.1.5 The right of such Association to prohibit structures, Improvements, including
manicured lawns and nursery plants.
7.2 Designation. of Common Area. Grantor shall designate and reserve Bear Creek
Subdivision Common Area in the Declaration, Supplemental Declarations and/or recorded Plats, deeds or
other instruments and/or as otherwise provided herein.
7.3 Delegation of Ri>;ht to Use. Any Owner may delegate, in accordance with the respective
Bylaws and Association-Rules of the Association, such Owner's right of enjoyment to the Bear Creek
Subdivision Common Area, to the members of such Owner's family in residence, and such Owner's tenants
or contract purchasers who reside on such Owner's Building Lot. Only Grantor or the Association shall have
the right to delegate the right of enjoyment to the Bear Creek Subdivision Common Area, to the general
public, and such delegation to the general public shall be for a fee set by Grantor or Association.
7.4 Damages. Each Owner shall be fully liable for any damage to any Common Area which
may be sustained by reason of the negligence or willful misconduct of the Owner, such Owner's resident
tenant or contract purchaser, or such Owner's family and guests, both minor and adult. In the case of joint
ownership of a Building Lot, the liability of such Owners shall be joint and several. The cost of correcting
such damage shall be a Limited Assessment against the Building Lot and may be collected as provided herein
for the collection of other Assessments.
DECLARATION - 14
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ARTICLE VIII: PRESSURIZED IRRIGATION
8.1 Irritation District Service. The Nampa & Meridian Irrigation District provides pressurized
irrigation water service to all Lots in the Project. Lot Owners shall be required to pay an assessment based
on Lot area to the District whether or not water is actually used. Lot Owners are prohibited from making any
cross connection or tie in between the irrigation water system and their domestic water systems. WATER
FROM THE IRRIGATION WATER SYSTEM IS NOT DRINKABLE; EACH LOT OWNER SHALL BE
RESPONSIBLE TO ENSURE THAT IRRIGATION WATER WITHIN THE BOUNDARIES OF SUCH OWNER'S
LOT IS NOT CONSUMED BY ANY PERSON OR USED FOR CULINARY PURPOSES.
8.2 No Private Svstem. Lot Owners shall not construct any ditch, drain, well or water system.
upon any Lot or Common Area for domestic use or irrigation purposes.
8.3 Water Master. The Association shall elector may contract for hire a Water Master to
designate any rotation schedule required for the delivery of irrigation water. The Water Master shall serve as
the liaison to Nampa & Meridian Irrigation District for all matters of Bear Creek Subdivision.
ARTICLE IX: ASSESSMENTS
9.1 Covenant to Pay Assessments. By acceptance of a deed to any property in Bear Creek
Subdivision, each Owner of such property hereby covenants and agrees to pay when due all Assessments or
charges made by the Association, including all Regular, Special and Limited Assessments and charges made
against such Owner pursuant to the provisions of this Declaration or other applicable instrument.
9.1.1 Assessment Constitutes Lien. Such Assessments and charges 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 property against which each such
Assessment or charge is made.
9.1.2 Assessment. is Personal Obligation. Each such Assessment, together with
interest, costs and reasonably attorneys' tees, shall also be the personal obligation of the Owner of
such property beginning with the time when the Assessment falls due. The personal obligation for
delinquent Assessments shall not.pass to such Owner's successors in title unless expressly assumed
by them but shall remain such Owner's personal obligation regardless of whether he remains an
Owner.
9.2 Re;?ulai• Assessments. All Owners, including the Grantor, are obligated to pay Regular
Assessments to the treasurer of the Association on a schedule of payments established by the Board.
9.2.1 Purpose of ReQUlar Assessments. The proceeds from Regular Assessments are
to be used to pay for all costs and expenses incurred by the Association, including legal and
attorneys fees and other professional fees, for the conduct of its affairs, including without limitation
the costs and expenses of construction, improvement, protection, maintenance, repair, management
and operation of the Common Areas, including all Improvements located on such areas owned
and/or managed and maintained by such Association, and an amount allocated to an adequate
reserve fund to be used for repairs, replacement, maintenance and improvement of those elements
of the Common Area, or other property of the Association that must be replaced and maintained on
a regular basis (collectively "Expenses").
9.2.2 Computation of Regular Assessments. The Association shall compute the
amount of its Expenses on an annual basis. The Board shall compute the amount of Regular
Assessments owed beginning the first day of the third month following the month in which the
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closing of the first sale of a Building Lot occurred in Bear Creek Subdivision for the purposes of the
Association's Regular Assessment ("Initiation Date"). Thereafter, the computation of Regular
Assessments shall take place not less than thirty (30) nor more than sixty (60) days before the
beginning of each fiscal year of the Association. The computation of the Regular Assessment for the
period from the Initiation Date until the beginning of the next fiscal year shall be reduced by an
amount which fairly reflects the fact that such period was less than one year.
9.2.3 Amounts Paid by Owners. The Board can require, in its discretion or as
provided in the Articles or Bylaws, payment of Regular Assessments in monthly, quarterly,
semi-annual or annual installments. The Regular Assessment to be paid by any particular Owner,
including Grantor, for any given fiscal year shail be computed as follows:
9.2.3.1 As to the Association's Regular Assessment, each Owner shall be
assessed and shall pay an amount computed by multiplying the Association's total
advance estimate of Expenses by the fraction produced by dividing the Building Lots
attributable to the Owner by the total number of Building Lots in the Property.
9.3 Special Assessments.
9.3.1 Purpose and Procedure. In the event that the Board of the Association shall
determine that its respective Regular Assessment for a given calendar year is or will be inadequate
to meet the Expenses of such Association for any reason, including but not limited to costs of
construction, reconstruction, unexpected repairs or replacement of capital improvements upon the
Common Area, attorney's fees and/or litigation costs, other professional fees, or for any other
reason, the Board thereof shall determine the approximate amount necessary to defray such
Expenses and levy a Special Assessment against the portions of the Property within its jurisdiction
which shall be computed in the same manner as Regular Assessments. No Special Assessment shall
be levied which exceeds twenty percent (20%) of the budgeted gross Expenses of such Association
for that fiscal year, without the vote or written assent of the Owners representing a majority of the
votes of the Members of such Association. The Board shall, in its discretion, determine the schedule
under which such Special Assessment will be paid.::
9.3.2 Consistent Basis of Assessment. Every Special. Assessment levied by and for the
Association shall be levied and paid upon the same basis as that prescribed for the levying and
payment of Regular Assessmehts'for such Association.
9.4 Limited Assessments. Notwithstanding the above provisions with respect to Regular and
Special Assessments, a Board may-levy a Limited Assessment against a Member as a remedy to reimburse the
Association for costs incurred in bringing the Member and/or such Member's Building Lot into compliance
with the provisions of the governing instruments for Bear Creek Subdivision.
9.5 Uniform -Rate of Assessment. Unless otherwise specifically provided herein, Regular and
Special Assessments shall be fixed at a uniform rate per Building Lot for all Members of the Association.
9.6 Assessment Period. Unless otherwise provided in the Articles or Bylaws, the Assessment
period shall commence on January 1 of each year and terminate December 31 of the year in which the
Initiation Date occurs. The first Assessment shall be pro-rated according to the number of months remaining
in the fiscal year and shall be payable in equal monthly installments.
9.7 Notice and Assessment Due Date. Ten (10) days prior written notice of Regular and
Special Assessments shall be sent to the Owner of every Building Lot subject thereto, and to any person in
possession of such Building Lot. The due dates for installment payment of Regular Assessments and Special
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Assessments shall be the first day of each month unless some other due date is established by the Board.
Each monthly installment of the Regular Assessment or Special Assessment shall become delinquent if not
paid within ten (10) days after the levy thereof. There shall accrue with each installment that is not paid
within thirty (30) days after the due date shall accrue a late fee of $25.00. The Association may bring an
action against the delinquent Owner and may foreclose the lien against such Owner's Building Lot as more
fully provided herein. Each Owner is personally liable for Assessments, together with all interest, costs and
attorneys' fees, and no Owner may exempt such Owner from such liability by a waiver of the use and
enjoyment of the Common Areas, or by lease or abandonment of such Owner's Building Lot.
9.8 Estoppel Certificate. The Association, upon at least twenty (20) days prior written request,
shall execute, acknowledge and deliver to the party making such request, a statement in writing stating
whether or not, to the knowledge of the Association, a particular Building Lot Owner is in default under the
provisions of this Declaration, and further stating the dates to which any Assessments have been paid by the
Owner. Any such certificate delivered pursuant to this paragraph 9.8 may be relied upon by any prospective
purchaser or mortgagee of the Owner's Building Lot. Reliance on such Certificate may not extend to any
default as to which the signor shall have had no actual knowledge.
9.9 Special Notice and Ouorum Reauirements. Notwithstanding anything to the contrary
contained in either the Bylaws or the Articles, written notice of any meeting called for the purpose of levying
a Special Assessment, or for the purpose of obtaining a membership vote in connection with an increase in
the Regular Assessment, shall be sent to all Members of the Association and to any person in possession of a
Building Lot in the applicable Tract, not less than fifteen (15) days nor more than thirty (30) days before such
meeting. At the first such meeting called, the presence of Members or of proxies entitled to cast sixty percent
(60%) of the total votes of the Association shall constitute a quorum. If such quorum is not present,
subsequent meetings may be called subject to the same notice requirement, and the required quorum at the
subsequent meetings shall be fifty percent (50%) of the quorum required at the preceding meeting. No such
subsequent meeting shall be held more than thirty,(30) days following the preceding meeting.
ARTICLE X: ENFORCEMENT OF ASSESSMENTS; LIENS
10.1 Ri1;ht to Enforce. The Association has the right to collect and enforce its Assessments
pursuant to the provisions hereof. Each Owner of a Building Lot, upon becoming an Owner of such Building
Lot, shall be deemed to covenant and agree to pay each and every Assessment provided for in this
Declaration and agrees to the enforcement of all Assessments in the manner herein specified. In the event an
attorney or attorneys are employed for the collection of any Assessment, whether by suit or otherwise, or to
enforce compliance with or specific performance of the terms and conditions of this Declaration, each
Owner agrees to pay reasonable attorney's fees in addition to any other relief or remedy obtained against
such Owner. The Board or its authorized `representative may enforce the obligations of the Owners to pay
such Assessments by commencement and maintenance of a suit at law or inequity, or the Board may
exercise the power of foreclosure and sale pursuant to paragraph 10.3 to enforce the liens created hereby. A
suit to recover a money judgment for an unpaid Assessment shall be maintainable without foreclosing or
waiving the lien hereinafter provided.
10.2 Assessment Liens.
10.2.1 Creation. There is hereby created a claim of lien with power of sale on each
and every Building Lot to secure payment of any and all Assessments levied against such Building
Lot pursuant to this Declaration together with interest thereon at the maximum rate permitted by law
and all costs of collection which may be paid or incurred by the Association making the Assessment
in connection therewith, including reasonable attorneys' fees. All sums assessed in accordance with
the provisions of this Declaration shall constitute a lien on such respective Building Lots upon
recordation of a claim of lien with the Ada County Recorder. Such lien shall be prior and superior
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to all other liens or claims created subsequent to the recordation of the notice of delinquency and
claim of lien except for tax liens for real property taxes on any Building Lot and Assessments on any
Building Lot in favor of any municipal or other governmental assessing body which, by law, would
be superior thereto.
10.2.2 Claim of Lien. Upon default of any Owner in the payment of any Regular,
Special or Limited Assessment issued hereunder, the Association may cause to be recorded in the
office of the Ada County Recorder a claim of lien. The claim of lien shall state the amount of such
delinquent sums and other authorized charges (including the cost of recording such notice), a
sufficient description of the Building Lot(s) against which the same have been assessed, and the
name of the record Owner thereof. Each delinquency shall constitute a separate basis for a notice
and claim of lien, but any number of defaults may be included within a single notice and claim of
lien. Upon payment to the Association of such delinquent sums and charges in connection
therewith or other satisfaction thereof, the Association shall cause to be recorded a further notice
stating the satisfaction of relief of such delinquent sums and charges. The Association may demand
and receive the cost of preparing and recording such release before recording the same.
10.3 Method of Foreclosure. Such lien may be foreclosed by appropriate action in court or by
sale by the Association establishing the Assessment, its attorney or other person authorized to make the sale.
Such sale shall be conducted in accordance with the provsions`of the Idaho Code applicable to the exercise
of powers of sale permitted by law. The Board is hereby authorized to appoint its attorney, any officer or
director of the Association, or any title company authorized to do business in Idaho as trustee for the purpose
of conducting such power of sale or foreclosure.
10.4 Required Notice. Notwithstanding anything contained in this Declaration to the contrary,
no action may be brought to foreclose the lien created by recordation of the notice of delinquency and claim
of lien, whether judicially, by power of-sale or otherwise, until the expiration of thirty (30) days after a copy
of such claim of lien has been deposited in the United States mail, certified or registered, postage prepaid, to
the Owner of the Building Lot(s) descr'''ibed in such notice of,delinquency and claim of lien; and to the: person
in possession of such Building Lot(s); and a copy thereof. is recorded. by the Association in the Office of the
Ada County Recorder.
10.5 Subordination to Certain Trust Deeds. The lien for the Assessments provided for herein in
connection with a given Building Lot shall not be subordinate to the lien of any deed of trust or mortgage
except the lien of a first deed of trust or first mortgage given and made in good faith and for value that is of
record as an encumbrance against such Building Lot prior to the recordation of a claim of lien for the
Assessments. Except as expressly provided.. in paragraph 10.6 with respect to a first mortgagee who acquires
title to a Building Lot,. the sale or transfer of any Building Lot shall not affect the Assessment lien provided for
herein, nor the creation thereof by the recordation of a claim of lien, on account of the Assessments
becoming due whether before, on, or after the date of such sale or transfer, nor shall such sale or transfer
diminish or defeat the personal obligation of any Owner for delinquent Assessments as provided for in this
Declaration.
10.6 Rights of Mortgagees. Notwithstanding any other provision of this Declaration, no
amendment of this Declaration shall operate to defeat the rights of the Beneficiary under any deed of trust
upon a Building Lot made in good faith and for value, and recorded prior to the recordation of such
amendment, provided that after the foreclosure of any such deed of trust such Building Lot shall remain
subject to this Declaration as amended.
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ARTICLE XI: INSPECTION OF ASSOCIATION'S BOOKS AND RECORDS
11.1 Member's Right of Inspection. The membership register, books of account and minutes of
meetings of the Board and committees of the Association shall be made available for inspection and copying
by any Member of the Association or by such Member's duly appointed representatives, at any reasonable
time and for a purpose reasonably related to such Member's interest as a Member at the office of the
Association or at such other place as the Board of such Association shall prescribe. No Member or any other
person shall copy the membership register for the purposes of solicitation of or direct mailing to any Member
of the Association.
11.2 Rules Re>;ardinQ Inspection of Books and Records. The Board shall establish reasonable
rules with respect to;
11.2.1 Notice to be given to the custodians of the records by the persons desiring to
make the inspection.
11.2.2 Hours and days of the week when such an inspection may be made.
11.2.3 Payment of the cost of reproducing copies of documents requested pursuant to
this Article XI.
11.3 Director's Rights of Inspection. Every director shall have the absolute right at any
reasonable time to inspect all books, records and. documents of the Association, and the physical properties
owned or controlled by the Association. The right of inspection by a director includes the right to make
extracts and copies of documents.
ARTICLE XII: ARCHITECTURAL COMMITTEE
12.1 Creation. Within thirty (30) days of the date on which the Grantor first conveys a Building
Lot to an Owner, Grantor shall appoint three (3) individuals to serve on Bear Creek Subdivision Architectural
Committee ("Architectural Committee"). Each member shall hold office until such time as such member has
resigned or has been removed, or such member's successor has been appointed, as provided herein. A
member of the Architectural Committee. need not be an Owner. Members of the Architectural Committee
may be removed by the person or entity appointing them at any time without cause.
12.2 Grantor's Right of:Appointment. At any time, and from time to time, prior to ten (10)
years after the recording date of his Declaration in which Grantor is the Owner of at least ten percent (10%)
of the aggregate Building Lots, Grantor shall have the exclusive right to appoint and remove all members of
the Architectural Commtfiee. At all other times, the Association Board shall have the right to appoint and
remove all members of the Architectural Committee. If a vacancy on the Architectural Committee occurs
and a permanent replacement has not yet been appointed, Grantor or the Board, as the case may be, may
appoint an acting member to serve for a specified temporary period not to exceed one (1) year.
12.3 Review of Proposed Construction. The Architectural Committee shall consider and act
upon any and all proposals or plans and specifications submitted for its approval pursuant to this Declaration,
and perform such other duties as from time to time shall be assigned to it by the Board, including the
inspection of construction in progress to assure its conformance with plans approved by the Architectural
Committee. The Board shall have the power to determine, by rule or other written designation consistent
with this Declaration, which types of Improvements shall be submitted for Architectural Committee review
and approval. The Architectural Committee shall have the power to hire an architect, licensed with the State
of Idaho, to assist the Architectural Committee in its review of proposals or plans and specifications
submitted to the Architectural Committee. The Architectural Committee shall approve proposals or plans
DECLARATION - 19
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and specifications submitted for its approval only if it deems that the construction, alterations or additions
contemplated thereby in the locations indicated will not be detrimental to the habitat of the Common Areas,
or appearance of the surrounding area of the Property as a whole, that the appearance of any structure
affected thereby will be in harmony with the surrounding structures, and that the upkeep and maintenance
thereof will not become a burden on the Association.
12.3.1 Conditions on Approval. The Architectural Committee may condition its
approval of proposals or plans and specifications upon such changes therein as it deems
appropriate, and/or upon the agreement of the Owner submitting the same ("Applicant") to grant
appropriate easements to the Association for the maintenance thereof, and/or upon the agreement of
the Applicant to reimburse the Association for the cost of maintenance, and may require submission
of additional plans and specifications or other information before approving or disapproving material
submitted.
12.3.2 Architectural Committee Rules and Fees. The Architectural Committee also
may establish rules and/or guidelines setting forth procedures for and the required content of the
applications and plans submitted for approval. Such rules may require a fee to accompany each
application for approvals or additional factors which it will take into consideration in reviewing
submissions. The Architectural Committee shall determine' he amount of such fee in a reasonable
manner. Such fees shall be used to defray the costs and expenses of the Architectural Committee,
including the cost and expense of hiring an architect licensed by the State of Idaho, as provided
above, or for such other purposes as established by the Board, and such fee shall be refundable to
the extent not expended for the purposes herein stated.
Such rules and guidelines may establish, without limitation, specific rules and regulations
regarding design and style elements, landscaping and fences and other structures such as animal
enclosures as well as special architectural guidelines applicable to Building Lots located adjacent to
public and/or private open space.
12.3.3 Detailed''''I'lans. The Architectural Committee may require such detail in plans
and specifications submitted for its review as it deems proper, including, without limitation, floor
plans, site plans, landscape plans, drainage plans, elevation drawings and descriptions or samples of
exterior material and colors. Until receipt by the Architectural Committee of any required plans and
specifications, the Architectural Committee may postpone review of any plan submitted for
approval.
12.3.4 Architectural Committee Decisions. Decisions of the Architectural Committee
and the reasons therefor shall be transmitted by the Architectural Committee to the Applicant at the
address set forth in the application for approval within twenty (20) days after filing all materials
required by the Architectural Committee. Any materials submitted pursuant to this Article XII shall
be deemed approved unless written disapproval by the Architectural Committee shall have been
mailed to the Applicant within twenty (20) days after the date of filing said materials with the
Architectural Committee.
12.4 Meetin>;s of the Architectural Committee. The Architectural Committee shall meet from
time to time as necessary to perform its duties hereunder. The Architectural Committee may from time to
time by resolution unanimously adopted in writing, designate a Architectural Committee representative (who
may, but need not be one of its members) to take any action or perform any duties for and on behalf of the
Architectural Committee, except the granting of variances pursuant to paragraph 12.9. In the absence of
such designation, the vote of any two (2) members of the Architectural Committee, or the written consent of
any two (2) members of the Architectural Committee taken without a meeting, shall constitute an act of the
Architectural Committee.
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BOI MT1:301650.1
12.5 No Waiver of Future Approvals. The approval of the Architectural Committee of any
proposals or plans and specifications or drawings for any work done or proposed, or in connection with any
other matter requiring the approval and consent of the Architectural Committee, shall not be deemed to
constitute a waiver of any right to withhold approval or consent as to any similar proposals, plans and
specifications, drawings or matter whatever subsequently or additionally submitted for approval or consent.
12.6 Compensation of Members. The members of the Architectural Committee shall receive
no compensation for services rendered, other than reimbursement for expenses incurred by them in the
performance of their duties hereunder and except as otherwise agreed by the Board.
12.7 Inspection of Work. Inspection of work and correction of defects therein shall proceed as
follows:
12.7.1 Upon the completion of any work for which approved plans are required under
this Article XII, the Owner shall give written notice of completion to the Architectural Committee.
12.7.2 Within sixty (60) days thereafter; the Architectural Committee or its duly
authorized representative may inspect such Improvement. ''If-the Architectural Committee finds that
such work was not done in substantial compliance with the approved plans, it shall notify the
Owner in writing of such non-compliance within such sixty (60) day period, specifying the particular
noncompliance, and shall require the Owner to remedy the same.
12.7.3 If upon the expiration of thirty (30) days from the date of such notification, or
any longer time the Architectural Committee determines to be reasonable, the Owner shall have
failed to remedy such noncompliance, the Architectural Committee shall notify the Board in writing
of such failure. Upon notice and hearing, as provided in-the Bylaws, the Board shall determine
whether there is a noncompliance and, if so, the nature thereof and the estimated cost of correcting
or removing the same. If a noncompliance exists, the Owner shall remedy or remove the same
within a period of not more than forty-five (45) days from the date of the announcement of the Board
ruling unless the Board specifies a longer time as reasonable. If the Owner does not comply with
the Board ruling within such period, the Board, of its option, may either remove the noncomplying
improvement or remedy the noncompliance, and the Owner shall reimburse the Association, upon
demand, for all expenses incurred in connection therewith. If such expenses are not promptly
repaid by the Owner to the Association, the Board shall levy a Limited Assessment against such
Owner for reimbursement pursuant to this Declaration.
12.7.4 If for any reason the Architectural Committee fails to notify the Owner of any
noncompliance within sixty (60) days after receipt of the written notice of completion from the
Owner, the work-shall be deemed to be in accordance with the approved plans.
12.8 Non-Liability of Architectural Committee Members. Neither the Architectural Committee
nor any member thereof, nor its duly authorized Architectural Committee representative, shall be liable to
the Association, or to any Owner or Grantee for any loss, damage or injury arising out of or in any way
connected with the performance of the Architectural Committee's duties hereunder, unless due to the willful
misconduct or bad faith of the Architectural Committee. The Architectural Committee shall review and
approve or disapprove all plans submitted to it for any proposed improvement, alteration or addition, solely
on the basis of aesthetic considerations and the overall benefit or detriment which would result to the
immediate vicinity and to the Property generally. The Architectural Committee shall take into consideration
the aesthetic aspects of the architectural designs, placement of building, landscaping, color schemes, exterior
finishes and materials and similar features, but shall not be responsible for reviewing, nor shall its approval of
any plan or design be deemed approval of any plan or design from the standpoint of structural safety or
conformance with building or other codes.
DECLARATION - 21
BOI MT1:301650.1
12.9 Variances. The Architectural Committee may authorize variances from compliance with
any of the architectural provisions of this Declaration, including restrictions upon height, size, floor area or
placement of structures, or similar restrictions, when circumstances such as topography, natural obstructions,
hardship, aesthetic or environmental considerations may require. However no variances will be granted for
construction of structures or Improvements, including without limitation manicured lawns, in the Common
Areas. Such variances must be evidenced in writing, must be signed by at least two (2) members of the
Architectural Committee, and shall become effective upon recordation in the office of the County Recorder
of Ada County. If such variances are granted, no violation of the covenants, conditions or restrictions
contained in this Declaration shall be deemed to have occurred with respect to the matter for which the
variance was granted. The granting of such a variance shall not operate to waive any of the terms and
provisions of this Declaration for any purpose except as to the particular Building Lot and particular provision
hereof covered by the variance, nor shall it affect in any way the Owner's obligation to comply with all
governmental laws and regulations affecting such Owner's use of the Building Lot, including but not limited
to zoning ordinances or requirements imposed by any governmental or municipal authority.
ARTICLE XIII: EASEMENTS
13.1 Easements of Encroachment. There shall be reciprocal appurtenant easements of
encroachment as between each Building Lot and such portion or porfiions of the Common Area adjacent
thereto or as between adjacent Building Lots due to the unwillful placement or settling or shifting of the
Improvements including but not limited to structures, walkways, bike paths, sidewalks and driveways
constructed, reconstructed or altered thereon in accordance with the terms of this Declaration. Easements of
encroachment shall be valid only so long as they exist, and the rights and obligations of Owners shall not be
altered in any way because of encroachments, settling or shifting of the Improvements; provided, however,
that in no event shall a valid easement for encroachment occur due to the willful act or acts of an Owner. In
the event a structure on any Building Lot is partially or totally destroyed, and then repaired or rebuilt, the
Owners of each Building Lot agree that minor encroachments''over adjoining Building Lots that existed prior
to the encroachment may be reconstructed pursuant to-the easement granted by this paragraph 13.1.
13.2 Easements of Access. Grantor expressly reserves for the benefit of all the Property
reciprocal easements of access, ingress and egress for all Owners to and from their respective Building Lots
for installation and repair of utility services, for drainage'of water over, across and upon adjacent Building
Lots, and Common Areas, resulting.#rom the normal use of adjoining Building Lots or Common Areas, and
for necessary maintenance and repair of any Improvement including fencing, retaining walls, lighting
facilities, mailboxes and sidewalk abutments, trees and landscaping. Such easements may be used by
Grantor, and by all Owners, their guests, tenants and invitees, residing on or temporarily visiting the
Property, for pedestrian walkways, vehicular access and such other purposes reasonably necessary for the
use and enjoyment of a Building Lot gr Common Area.
13.3 Drainage and Utility Easements. Notwithstanding anything expressly or impliedly
contained herein to fhe contrary, this Declaration shall be subject to all easements heretofore or hereafter
granted by Grantor for the installation and maintenance of utilities and drainage facilities that are required for
the development of the Property: In addition; Grantor hereby reserves for the benefit of any Association the
right to grant additional easements and rights-of-way over the Property and/or a Tract, as appropriate, to
utility companies and public agencies as necessary or expedient for the proper development of the Property
until close of escrow for the sale of the last Building Lot in the Property to a purchaser.
13.3.1 Improvement of Draina>e and Utility Easement Areas. The Owners of Building
Lots are hereby restricted and enjoined from constructing any Improvements upon any drainage or
utility easement areas as shown on the Plat of Bear Creek Subdivision or otherwise designated in
any recorded document which would interfere with or prevent the easement from being used for
such purpose; provided, however that the Owner of such Building Lots and the Grantor, Association
DECLARATION - 22
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or designated entity with regard to the landscaping easement described in this Article XIII, shall be
entitled to install and maintain landscaping on such easement areas, and also shall be entitled to
build and maintain fencing on such easement areas subject to approval by the Association
Architectural Committee, so long as the same would not interfere with or prevent the easement
areas from being used for their intended purposes; provided, that any damage sustained to
Improvements on the easement areas as a result of legitimate use of the easement area shall be the
sole and exclusive obligation of the Owner of the Building Lot whose Improvements were so
damaged.
13.4 Rights and Duties Concerning Utility Easements. The rights and duties of the Owners of
the Building Lots within the Property with respect to utilities shall be governed by the following:
13.4.1 Wherever utility house connections are installed within the Property, which
connections or any portions thereof lie in or upon Building Lots owned by an Owner other than the
Owner of the Building Lot served by the connections; the Owner of the Building Lot served by the
connections shall have the right, and is hereby granted an easement to the full extent necessary
therefor, to enter upon any Building Lot or to have-their agent enter upon any Building Lot within
the Property in or upon which said connections or-:any portion thereof lie, to repair, replace and
generally maintain the connections as and when. it may be necessary.
13.4.2 Whenever utility house connections are installed within the Property, which
connections serve more than one Building Lot, the Owner of-each Building Lot served by the
connections shall be entitled to full use and enjoyment of such portions of said connections as
service such Owner's Building Lot.
13.5 Driveway Easements. Whenever a driveway is installed within the Property which in
whole or in part lies upon a Building Lot owned by an Owner other than the Owner of the Building Lot
served, or installed to serve more than one Building Lot, the Owner of each Building Lot served or to be
served by such driveway shall be entitled to full use and enjoyment of such other Building Lot as required to
service such Owner's Building Lot or to repair, replace or maintain such driveway.
13.6 Disputes as to Sharing of Costs. Ir1 the event of a dispute between Owners with respect to
the repair or rebuilding of utility connections or driveways, or with respect to the sharing of the cost therefor,
upon written request of one of such Owners addressed to the Association, the matter shall be submitted to
the Board which shall decide the dispute and, if appropriate, make an appropriate Assessment against any or
all of the Owners involved on behalf of the prevailing Owner(s), which Assessment shall be collected and
enforced in the manner provided by this Declaration for Limited Assessments.
13.7 General Landscape Easement. An easement is hereby reserved to each appropriate
Association, its contractors and agents, to enter those portions of Building Lots, for the purpose of installing,
maintaining, replacing and restoring extel•ior landscaping, and natural vegetation and habitat. Such
landscaping activity shall include, byway„of illustration and not of limitation, the mowing of lawns,
irrigation, sprinkling, tree and shrub trimming and pruning, walkway improvement, seasonal planting and
such other landscaping activities within-the Property as such Association shall determine to be necessary
from time to time.
13.8 Overhang Easement. There shall be an exclusive easement appurtenant to each Building
Lot over the Common Areas for overhanging eaves, and for any projections from the buildings, which
projections shall not extend beyond the eave line.
13.9 Maintenance and Use Easement Between Walls and Lot Lines. Whenever the wall of a
structure, or a-fence or retaining wall, constructed on a Building Lot under plans and specifications approved
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• •
by the Architectural Committee is located within three (3) feet of the lot line of such Building Lot, the Owner
of such Building Lot is hereby granted an easement over and on the adjoining Building Lot (not to exceed 3
feet from the Building Lot line) for purposes of maintaining and repairing such wall or fence and eaves or
other overhangs, and the Owner of such adjoining Building Lot is hereby granted an easement for
landscaping purposes over and on the area lying between the lot line and such structure or fence so long as
such use does not cause damage to the structure of fence.
ARTICLE XIV: MISCELLANEOUS
14.1 Term. The easements created hereunder shall be perpetual, subject only to
extinguishment by the holders of such easements as provided by law. The covenants, conditions, restrictions
and equitable servitudes of this Declaration shall run until December 31, 2018, unless amended as herein
provided. After December 31, 2018, such covenants, conditions and restrictions shall be automatically
extended for successive periods of ten (10) years each, unless amended or extinguished by a written
instrument executed by Members holding at least three-fourths (3/4) of the voting power of the Association
and such written instrument is recorded with the Ada County-Recorder. Further provided that the
Association shall not be dissolved without the prior written approval of the City of Meridian and Ada County
Highway District, such consent not to be unreasonably withheld provided that a responsible successor
organization shall agree to perform those maintenance 'responsibilities arising from applicable city and
county governmental requirements.
14.2 Amendment.
14.2.1 By Grantor. Except as provided in paragraph 14.3 below, until the recordation
of the first deed to a Building Lot in the Property, the provisions of this Declaration may be
amended, modified, clarified, supplemented, added to (collectively, "amendment") or terminated by
Grantor by recordation of a written instrument setting forth such amendment or termination. Any
amendment affecting only a particular Tract may be made by Grantor by an amendment to this
Declaration at any time up to the recordation of-the first deed to a Building Lot in such Tract.
14.2.2 By Owners. Except where a greater percentage is required by express
provision in this Declaration, the provisions of this Declaration, other than this Article XIV, any
amendment shall be by an instrument in writing signed and acknowledged by the president and
secretary of the Association certifying and attesting that such amendment has been approved by the
vote or written consent of Ovvners representing more than fifty percent (50%) of the votes in the
Association, and such amendment shall be effective upon its recordation with the Ada County
Recorder. Any amendment fo this Article XIV shall require the vote or written consent of Members
holding ninety-five percent (95%} of the voting power of the Association.
14.2.3 Effect of Amendment. Any amendment of this Declaration approved in the
manner specified above shall be binding on and effective as to all Owners and their respective
properties notwithstanding-that such Owners may not have voted for or consented to such
amendment. Such amendments may add to and increase the covenants, conditions, restrictions and
easements applicable to the Property but shall not prohibit or unreasonably interfere with the
allowed uses of such Owner's property which existed prior to the said amendment.
14.3 Mortgage Protection. Notwithstanding any other provision of this Declaration, no
amendment of this Declaration shall operate to defeat or render invalid the rights of the beneficiary under
any first deed of trust upon a Building Lot made in good faith and for value, and recorded prior to the
recordation of such amendment, provided that after foreclosure of any such first deed of trust such Building
Lot shall remain subject to this Declaration, as amended.
DECLARATION - 24
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14.4 Notices. Any notices permitted or required to be delivered as provided herein shall be in
writing and may be delivered either personally or by mail. If delivery is made by mail, it shall be deemed to
have been delivered seventy-two (72) hours after the same has been deposited in the United States mail,
postage prepaid, addressed to any person at the address given by such person to the Association for the
purpose of service of such notice, or to the residence of such person if no address has been given to the
Association. Such address may be changed from time to time by notice in writing to the Association, as
provided in this paragraph 14.4.
14.5 Enforcement and Non-Waiver.
14.5.1 Right of Enforcement. Except as otherwise provided herein, any Owner of any
Building Lot shall have the right to enforce any or all of the provisions hereof against any property
within the Property and Owners thereof.
14.5.2 Violations and Nuisances. The failure of any Owner of a Building Lot to
comply with any provision hereof, or with any provision of the Articles or Bylaws of any
Association, is hereby declared a nuisance and will. dive rise to a cause of action in the Grantor, the
Association or any Owner Building Lot(s) within the Property for recovery of damages or for
negative or affirmative injunctive relief or both. However,-:any other provision to the contrary
notwithstanding, only Grantor, the Association,. the Board, or a duly authorized agent of any of
them, may enforce by self-help any of the provisions hereof only if such self-help is preceded by
reasonable notice to the Owner.
14.5.3 Violation of Law. Any violation of any state, municipal or local law, ordinance
or regulation pertaining to the ownership, occupation or use of any property within the Property is
hereby declared to be a violation of this Declaration and subject to any or all of the enforcement
procedures set forth in this Declaration and any or all enforcement procedures in law and equity.
14.5.4 Remedies Cumulative. Each remedy provided herein is cumulative and not
exclusive.
14.5.5 Non-Waiver. The failure to enforce any of the provisions herein at any time
shall not constitute a waiver of the right to enforce any such provision.
14.6 Interpretation. The provisions of this Declaration shall be liberally construed to effectuate
its purpose of creating a uniform plan for the development and operation of the Property. This Declaration
shall be construed and governed under the laws of the State of Idaho.
14.6:1 Restrictions Construed Together. All of the provisions hereof shall be liberally
construed together to promote and effectuate the fundamental concepts of the development of the
Property as set forth in the recitals of this Declaration.
14.6.2 Restrictions Severable. Notwithstanding the provisions of the foregoing
paragraph 14.6.1, each of the provisions of this Declaration shall be deemed independent and
severable, and the invalidity or partial invalidity of any provision or portion thereof shall not affect
the validity or enforceability of any other provision herein.
14.6.3 Singular Includes Plural. Unless the context requires a contrary construction,
the singular shall include the plural and the plural the singular; and the masculine, feminine or
neuter shall each including the masculine, feminine and neuter.
DECLARATION - 25
BOI MT1:301650.1
~ ~
14.6.4 Captions. All captions and titles used in this Declaration are intended solely for
convenience of reference and shall not affect that which is set forth in any of the provisions hereof.
14.7 Successors and Assi>;ns. All references herein to Grantor, Owners, any Association or
person shall be construed to include all successors, assigns, partners and authorized agents of such Grantor,
Owners, Association or person.
IN WITNESS WHEREOF, Grantor has set its hand this day of 1998.
BEAR CREEK, LLC.
By:
Greg Johnson, Managing Member
STATE OF IDAHO )
ss.
County of Ada )
On this day of 1998, before.me, the undersigned, a Notary Public in
and for said state, personally appeared GREG JOHNSON, known or identified to me to be the Managing
Member of BEAR CREEK, LLC, the limited liability company :that executed the instrument or the person who
executed the instrument on behalf of said limited liability company, and acknowledged to me that such
limited liability company executed the same.
IN WITNESS WHEREOF, I :have hereunto set my hand and affixed my official seal the day and year
in this certificate first above written.
Notary Public for Idaho
Residing at:
My Commission Expires:
DECLARATION - 26
BOI MT1:301650.1