Entrata Farms - CCRs Recorded 10-22-19ADA COUNTY RECORDER Phil McGrane 2019-103751
BOISE IDAHO Pgs=59 LISA BATT 1012212019 12:47 PM
KENT BROWN AMOUNT.$18400
WHEN RECORDED, MAIL„ TO: 111111111 MIN 111111111111111111111111111 IN III
00691571201901037610590697
FIG Entrata Farms LLC
295 West Center Street Suite 201
Provo_, UT 84601
Attn: Brian Schnell
DECLARATION OF
COVENANTS, CONDITIONS, AND RESTRICTIONS
FOR
ENTRATA FARMS HOMEOWNERS' ASSOCIATION
(A Community location in the City of Meridian, Ada County, Idaho)
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
FOR
ENTRATA FARMS HOMEOWNERS' ASSOCIATION
This Declaration of Covenants, Conditions, and Restrictions f br Entr to Farms
Homeowners ' Association ("Declaration") is made and executed this day of ,
2019, by FIG Village at Parkside LLC ("Declarant"').
RECITALS.
t .1. Declarant has created. or will create, a subdivision in the City of Meridian ("City"),
Ada County, Idaho, as identified in the Plat ("Project"). The Project will consist of multiple
Buildings, with all of the Buildings containing one or more individual residential Units.
1.2. The covenants, conditions and restrictions contained in this Declaration and in the
Exhibits hereto shall be enforceable equitable servitudes and shall run with the land and encumber
the Project in perpetuity.
1.3. The Project may be platted and developed in phases, in accordance with the
approvals and ordinances of the City and Ada County.
1.4. The Project will have common areas and facilities to be owned by and through the
Association. The Project is not a cooperative and is not a condominium project. The Project is not
subject to the provisions of the Idaho Condominium Property Act, Idaho Code Section 55-1501 et
seq.
NOW, THEREFORE, for the foregoing purposes, the Owners adopt the following
covenants, conditions, easements and restrictions to govern the development, use, maintenance
and management of the Project:
2. DEFINITIONS.
Unless the context clearly indicates otherwise. capitalized terms as used in this Declaration
and the foregoing Recitals have the meanings set forth in this Section 2.
2.1. Reserved.
2.2. Amendment means any amendment to this Declaration made in accordance with
the Declaration.
2.3. Assessable Unit means each Unit and Garage Unit, except for Exempt Units.
2.4. Assessments means all assessments described in Section 19 of this Declaration.
including Regular Common Assessments, Special Common Assessments, Specific Assessments
and Garage Assessments.
�. �. Association means Tile Entrata Farms Homeowners' Association, which
association will be, or has been, organized as a Idaho nonprofit corporation.
2.6. Attached Garaae means a garage located upon a Lot, attached to a Unit and owned
by the Unit Owner.
2.7. Board means the Board of Directors of the Association, appointed or elected in
accordance with this Declaration and the Bylaws.
2.8. Building(s) means the buildings constructed as part of the Project. It is anticipated
that the Buildings will contain two (2) or more Units. The term "Buildings" shall not include
Garage Buildings.
2.9. Bylaws means the Bylaws of the Entrata Farms Homeowners ' Association, a copy
of which is attached to this Declaration as Exhibit B, as the same may be amended from time to
time.
2.1 Q_ Capital Improvement means any improvement with a useful life of more than three
()) years.
2.11. Commercial _Space shall mean any space designated for commercial use on the Plat
and allowed by the Association. Commercial Space shall not include the Garage Units,
notwithstanding any commercial rental activities in connection therewith.
2.12. Common Areas and Facilities or Common Areas means all portions of the Project
other than the Units and other than the Garage Units, as more f'ulIN described in Section 6 of this
Declaration. Unless otherwise indicated in this Declaration, each reference to Common Areas and
Facilities or Common Areas includes reference to Limited Common Areas and Facilities.
2.13. Common Assessment Share means a share of Regular Common Assessments. as
determined by the Association.
2.14. Common Assessments means those assessments described in Section 19 of this
Declaration to fund the Common Expenses, and include Regular Common Assessments and
Special Common Assessments.
2.1 S. Common Expenses means all expenses of the administration. maintenance, repair,
or replacement of the Common Areas and Facilities and all other expenses denominated as
Common Expenses by this Declaration. Common Expenses do not include the Garage Expenses.
2.16. Common/ Garage„ Assessments. Common/ Garage Assessments include the
Common Assessments and the Garage Assessments.
2
2.17. Common/ Garage Expense Account means one or more deposit or investment
accounts of the Association into which are deposited the Common/ Garage Assessments.
2.18. Common Wall(s)means the walls in each Building that divide and are located
between any two (2) adjoining Units in a Building. The Common Walls are used by the Owners
of adjoining Units in a Building, and are subject to the provisions of Section 7.2 of this Declaration
and the subsections thereof.
2.19. Declarant means PIG Village at Parkside, LLC
2.20. Declarant Affiliate means any person directly or indirectly controlling, controlled
by or under common control with Declarant, and shall include, without limitation, any general or
limited partnership, limited liability company, limited liability partnership or corporation in which
Declarant (or another Declarant Affiliate) is a general partner, managing member or controlling
shareholder.
2.21. Declarant Control Period means the period of time during which the Declarant has
administrative control of the Association, which will continue so long as Declarant is a Class B
Member of the Association. Declarant will remain a Class B Member so long as Declarant owns
any Lot or Unit in the Project (as the terms "Lot" and "Unit" are defined herein to not include any
Garage Lot or Garage Unit). After Declarant no longer owns any Lot or Unit in the Project,
Declarant will remain a Class B Member until the later to occur of (i) ninety (90) days following
the date when Declarant transferred the last remaining Lot or Unit owned by Declarant, or (ii)
ninety (90) days following the date when all of the Units within the Project have received a
certificate of occupancy from the municipal authority having jurisdiction over the Project. If, after
Declarant's Class B Membership shall terminate, Declarant owns any Garage Lot in the Project,
Declarant shall become a Class A Member with respect to each Garage Lot owned by Declarant.
Notwithstanding the foregoing, Declarant may, at any time, deliver to the Association written
notice that Declarant is withdrawing as a Class B Member of the Association. If Declarant provides
such notice while Declarant owns any Lot or Unit in the Project, Declarant shall become a Class
A Member with respect to each Unit owned by Declarant. If Declarant provides such notice while
Declarant owns any Garage Lot in the Project, Declarant shall become a Class A member with
respect to each Garage Lot owned by Declarant.
2.22. Exempt Unit(s) means (i) each Unit in the Project that has not received a certificate
of occupancy from the municipal authority having jurisdiction, regardless of who owns the Unit;
and (ii) each Unit in the Project while owned by Declarant or a Declarant Affiliate until the one
hundred eightieth (180") day after the municipal authority having jurisdiction thereover issues a
certificate of occupancy for such Unit. In addition, each Lot that does not contain a fully -
constructed Unit shall be an "Exempt Unit," and each model unit owned by the Declarant shall be
an "Exempt Unit" so long as the same is used as a model unit by the Declarant, a Declarant
Affiliate, or their assign(s).
2.23. Garage Assessments shall mean the annual assessments levied by the Association
on the Garage Owner to pay the Garage Expenses. The Garage Assessments shall be based on a
garage reserve analysis as set forth in Section 19.2, if available, or otherwise, the Garage
3
Assessments shall be based on the costs and expenses of maintaining, repairing and replacing the
exterior and rooftops of the Garage Buildings, the proportionate share of the costs and expenses of
maintaining, repairing and replacing the driveways attributable to the Garage Buildings, and the
Garage Buildings' proportionate share of insurance purchased by the Association under Section
13; provided, however. the Garage Assessments per Garage Unit shall in no case be more than
one twelfth (1/12) of the Regular Common Assessment levied upon each Unit Owner. Garage
Assessments shall be used for no purpose other than as specified in this Section 2.25, The Garage
Owner shall not be required to pay any portion of Regular Common Assessments. Garage
Assessments shall not be levied against Unit Owners owning Attached Garages.
2.24. Garage Building means the garage structure constructed on the Garage Lot. It is
anticipated that each Garage Building will contain two or more Garage Units. It is contemplated
that the Garage Units will be leased. Garage Building shall not mean a building comprised of an
Attached Garage,
2.25. Garage Expenses means all expenses of the maintenance, repair or replacement of
the exterior of the Garage Buildings, the rooftops of the Garage Buildings, the Garage Buildings'
proportionate share of the driveways and roadways providing access to the Garage Buildings, and
the Garage Buildings' proportionate share of insurance purchased by the Association under
Section 13. The Garage Expenses shall not include expenses for the maintenance, repair or
replacement of the exterior or rooftops of Attached Garages.
2.26. Garage Lot shall mean each of the separate parcels of land within the Project as
shown on the Plat upon which a detached Garage Building is or will be constructed. Ownership
of a Garage Lot and the Building constructed thereon shall be inseparable, and any conveyance of
a Garage Lot shall operate to convey title to the Garage Building constructed on the Garage Lot.
Likewise, any conveyance of a Garage Building shall operate to convey title to the Garage Lot on
which the Garage Unit is located. Garage Lot shall not mean a Lot upon which an Attached Garage
is located.
2.27. Garage Owner means any person or entity at any time owning in fee simple a
Garage Lot within the Project as such ownership is shown by the real property records of the
County Recorder of the county in which the Project is located. The term Garage Owner shall not
refer to any Mortgagee, unless such Mortgagee has acquired title for other than security purposes.
Garage Owner shall not include a Unit Owner owning an Attached Garage.
2.28. Garage i lnit shall mean each individual parking stall within a Garage Building. It
is anticipated there will be two or more Garage Units in each Garage Building. It is contemplated
that the Garage Owner will lease the Garage Units. Garage Unit shall not include a parking stall
located within an Attached Garage.
2.29. HOA Manager means person(s) or company(ies) hired by the Association to
manage the affairs of the Association and the Project. The Association shall enter into a written
management agreement with any Manager, setting forth the rights, duties and obligations of the
Manager, including, without limitation, the services to be provided, including, without limitation,
managing the financial affairs of the Association, maintaining the Common Areas and Limited
4
Common Areas, and the calculation and collection of any Assessments. The written agreement
shall also include the standards of performance required, and the rights and remedies applicable in
the event of any breaches or defaults. The rights and remedies shall include, without limitation,
the right to terminate the management agreement in accordance with the terms and provisions
thereof, and the right of the Association to hire a replacement Manager.
2.30. Improvement means every structure, feature or improvement of any kind placed or
constructed in the Project, including but not limited to any Building, Unit, Residence, garage,
lighting, deck, porch, patio, sidewalk, foundation, awning, fence, retaining wall, driveway,
irrigation or drainage feature, storage structure or other product of construction and also includes
landscaping, provided that nothing in this Declaration shall require the Declarant to construct any
particular Improvement on a Lot, Garage Lot, Common Area, or other portion of the Project.
2.31. Leasing means any agreement for the leasing or rental of any Unit in the Project.
2.32. Limited Common Areas and Facilities or Limited Common Areas means a portion
of the Common Areas and Facilities, if any, allocated by the Declaration, as may be shown on the
Plat or described in this Declaration, for the exclusive use of one or more, but fewer than all, of
the Units. Limited Common Areas may include driveways, parking areas, hallways, porches,
balconies. but Declarant will have no obligation to include any of the foregoing features in the
Project.
2.33. Lot means each of the separate parcels of land within the Project as shown on the
Plat on which a Building, with or without an Attached Garage, is or will be constructed. "Lot"
shall not mean a Garage Lot. Ownership of a Lot and the Unit(s) constructed thereon shall be
inseparable, and any conveyance of a Lot shall operate to convey title to the Unit(s) constructed
on the Lot. Likewise. any conveyance of a Unit shall operate to convey title to the Lot on which
Unit is located.
2.34. Moggaae means any mortgage, deed of trust or other security instrument by which
a Unit or any part thereof or interest therein is encumbered. A First Mortgage is a Mortgage having
priority as to all other Mortgages encumbering a Unit or any part thereof or interest therein.
1.35. Mortgagee means (i) any persons or entities named as the Mortgagee or beneficiary
under any Mortgage by which the interest of any Owner is encumbered, (ii) any successor to the
interest of such person or entity under such Mortgage, or (iii) any insurer or guarantor of such
person or entity under such Mortgage.
2.36. Owner means any person or entity at any time owning in fee simple a Lot within
the Project as such ownership is shown by the real property records of the County Recorder of the
county in which the Project is located. The term "Owner' shall include Unit Owner(s) and Garage
Owner(s)_ The term "Owner" shall not refer to any Mortgagee, unless such Mortgagee has
acquired title for other than security purposes.
2.37. Plat means the plat(s) for the Project, as filed in the real property records of the
County Recorder of the county in which the Project is located, as such plats may be amended, and
includes plats for subsequent phases of the Project.
2.38. Project means the Property, Buildings, Units, Common Areas and Facilities and all
Improvements constructed on the Property, as approved by the applicable governmental
authorities.
2.39. Pro a means that certain real property on which the Units, Buildings, Garage
Units, Garage Buildings and other Improvements are or will be located, as more particularly
described on Exhibit A of this Declaration.
2.40. Property Manager means that person(s) or company(ies) hired to manage the
Leasing of all Units, Garage Units and other applicable property within the Project.
2.41. Property Management Agreement means the agreement entered into between the
Association and the Property Manager.
2.42. Regular Common Assessments means the annual assessments levied by the
Association to pay the budgeted Common Expenses. Regular Common Assessments shall not
include any expense comprising the Garage Assessments for the maintenance, repair or
replacement of the exterior or rooftops of the Garage Buildings. Regular Common Assessments
shall include all expenses for the maintenance, repair or replacement of roadways and driveways
and insurance purchased by the Association under Section 13, except for the proportionate share
of such expenses comprising the Garage Assessment.
2.43. Special Assessment Share means a share of the Special Common Assessments, as
determined by the Association.
2.44. Special Common Assessments means assessments, which the Association may levy
from time to time, in addition to the Regular Common Assessments, for unexpected Common
Expenses or other purposes as provided herein.
2.45. Specific Assessments means assessments which the Association may levy from
time to time against an Owner or Owner's Unit. in addition to Regular Common Assessments and
Special Common Assessments. for the purposes provided herein.
2.46. State means the State of Idaho, in which the Property is located.
2.47. Total Votes of the Association means the total number of votes appertaining to all
Units and Garage Lots, as described in Section 22 of this Declaration, including all votes pertaining
to the Class B Member for such time as Declarant is a Class B member of the Association.
2.48. Unit means an individual residential dwelling area within a Building designed for
separate residential use and occupancy as described in Section 5 of this Declaration. It is
anticipated that there will be two (2) or more Units per Building. There is no requirement that the
Units be owner -occupied. It is contemplated that most, if not all, of the Units will be leased to,
10
and occupied by, tenants. If the Plat provides for Commercial Spaces within the Project, the term
"Unit" also includes individually owned portions of the Project which are designated as
Commercial Spaces. The term "Unit" shall not include "Garage Unit."
2.49. Unit Number means the number, letter or combination of numbers and letters that
identifies only one Unit in the Project.
2.50. Unit Owner means any person or entity at any time owning in fee simple a
residential Lot within the Project as such ownership is shown by the real property records of the
County Recorder of the county in which the Project is located. The term "Unit Owner" shall not
refer to any Mortgagee, unless such Mortgagee has acquired title for other than security purposes.
3. DESCRIPTION OF PROPERTY; EXPANDABLE PROJECT
3.1. The boundaries of the Property are depicted on the recorded Plat, and the Property
is more particularly described on Exhibit A of this Declaration.
3.2. The Buildings in the Project will be principally constructed of the following
materials: Wooden frames with load bearing and non -load bearing walls studded with wood; glass
openings; wooden joist floors and roofs; roof surfaces with asphalt shingles; interior walls surfaced
with gypsum sheets. The exterior finishes may include stucco, siding, and stone, hardiplank and/or
masonry products.
3.3 The Project is expandable. Hence, following construction of the Buildings and
Improvements in the first phase of the Project, subsequent phases may also be constructed in
accordance with the plat approvals and zoning requirements of the City. There is no guarantee
that subsequent phases will be constructed or that the Project will be expanded. Declarant (or its
assigns) shall have the sole discretion to determine if and when to apply for plat approval to
develop and construct additional phases. If approved and constructed, the additional phases shall
be annexed into, and made a part of, this Project by recording an instrument confirming the
Declarant's intention to expand the Project to include the additional phase(s). Upon the recordation
of such an instrument, the land and Improvements against which the instrument is recorded shall
automatically become part of the Project, subject to and governed by all of the terms and provisions
of this Declaration.
4. INTENTIONALLY OMITTED.
5. DESCRIPTION OF UNITS, LOTS, AND BUILDINGS.
Most, if not all, of the Buildings and Lots will contain two (2) or more Units, as shown on
the Plat. Within the Project, the Units in some Buildings may be individually and separately owned
(with each Unit having its own tax parcel identification number) while the Units in other Buildings
may be commonly owned as a single parcel as shown on the Plat. If so approved by the applicable
municipal authority, two (2) Buildings may be located adjacent to each other with a zero lot line.
Each Unit shall consist of the interior surfaces of each residential dwelling or Commercial Space,
7
if any, and its perimeter walls, bearing walls, floors, ceilings, and the windows and doors of each
Unit. In addition, each Lot shall consist of the airspace above and the subsurface below the land
and all of the area and Improvements above and below the surface of the land and within and part
of the vertical boundaries defined by the Lot lines shown on the Plat, extended upwards to the
heavens and downward to the center of the earth, included within the boundaries of each Lot. Each
Lot (and the Unit or Units thereon) is to be comprised of all of the physical Improvements that
pertain solely to the area in which the Unit is located or pertain solely to the Improvements within
the Lot, including, without limitation, all physical facilities, installations, lines, foundations,
equipment, tanks, pumps, pipes, vents, ducts, shafts, flues, chutes, conduits, wires and other utility
installations that connect or provide service only to the applicable Unit. Without limitation, a Unit
shall include any finishing material applied or affixed to the interior surfaces of the interior walls,
floors and ceilings of the Units in the Building; interior walls that support the Improvements within
the Building as a whole or for the Units within the Building; and all utility outlets, fixtures or
appliances found within the boundary lines of the Unit. The Owner(s) of each Unit will be
responsible for all costs and expenses associated with the maintenance and repair of the interior of
the Unit.
The Garage Buildings and the Garage Lots will contain two ( 2) or more Garage Units.
Each Garage Unit shall be owned by the Garage Owner and all Garage I hits within a Garage Lot
shall be owned as a single parcel. Each Garage Building shall consist of the Garage Units therein
and the interior surfaces of each Garage Building, and its perimeter walls, bearing walls, floors,
ceilings, and the windows and doors of each Garage Unit. In addition, each Garage Lot shall
consist of the airspace above and the subsurface below the land and all of the area and
improvements above and below the surface of the land and within and part of the vertical
boundaries defined by the Garage Lot lines shown on the Plat, extended upwards to the heavens
and downward to the center of the earth, included within the boundaries of each Garage Lot. By
this provision, the Declarant intends each Garage Lot (and the Garage Building thereon) to be
comprised of all of the physical improvements that pertain solely to the area in which the Garage
Building is located or pertain solely to the improvements within the Garage Lot, that connect or
provide service only to the applicable Garage Building. Without limitation, a Garage Building
shall include any finishing material applied or affixed to the interior surfaces of the interior walls,
.floors and ceilings of the Garage Building; interior walls that support the improvements within the
Garage Building as a whole or for the Garage Units within the Garage Building; and all utility
outlets or fixtures found within the boundary lines of the Garage Building. The Garage Owner
will be responsible for all costs and expenses associated with the maintenance and repair of the
interior of his/her/their respective Garage Building and the Garage Units therein. The Garage
Owner shall also be responsible for all costs and expenses associated with the maintenance and
repair of each Garage Unit door.
The following items shall not be included in the definition of a Unit, or Garage Building,
but shall be considered Common Areas and Facilities to be maintained by the Association: the
exterior surfaces of the Buildings, the exterior of the Garage Buildings (except for the Garage Unit
doors), the exterior of the Attached Garages, the roofs of the Buildings, the roofs of the Garage
Buildings, the roofs ol'the Attached Garages, all landscaping and yard areas located outside of the
footprint of each Building and Garage Building, as more fully described in Section 6 of this
91
Declaration. Utility meters or other Improvements may be attached to any portion of the exterior
of a Building or Garage Building for the benefit of multiple Units or Garage Units within that
Building or Garage Building or within adjoining or nearby Units or Garage Buildings. Such meters
or common Improvements will be considered Common Areas and Facilities maintained by the
Association, or, as applicable. the appropriate utility company.
6. COMMON AREAS AND FACILITIES.
6.1 The Common Areas and Facilities shall mean and shall include those portions of
the Property that are not part of the t Jnits or the Garage Units, and shall include, without limitation,
the open space areas of the Project, the common landscaping of the Project, the non-public
roadways. streets and walkways. if any, within the Project, the entry/exit gates and related
Improvements, if any, within the Project, as well as any other areas in the Project that are not
designated as a Lot, Building, Unit, Garage Lot, Garage Building or Garage Unit on the Plat. The
Common Areas and Facilities also include the roofs and exterior surfaces of the Buildings and
Garage Buildings (but do not include the garage doors of the Garage Units) including utility
meters, if any, on the exterior of the Buildings and the Garage Buildings; the grounds and certain
parking areas in the Project. if any, designated as part of the Common Areas and Facilities on the
Plat (such parking areas not to include the Garage Units); all landscaping; all fencing installed by
Declarant; the park -strips (if any) designated as Common Areas on the Plat(s), all apparatuses and
installations existing for common use of all Unit Owners and their tenants or guests; and all repairs,
maintenance, clearing (snow), and replacements of any of the foregoing. Parking stalls (not to
include Garage Units), il'any, which arc Common Areas and Facilities may be utilized for locating
trash containers and similar items if needed by the Association. Moreover, the Association, (not
the Owners individually) shall be responsible for all maintenance and repair, and snow -removal,
of the driveways, sidewalks, and landscaping within the Project even if all or any portion of such
areas are technically located within the boundaries of any Lot as shown on the Plat.
The Common Areas and Facilities shall also include, without limitation, a clubhouse, pool,
or other recreational amenities or facilities if the same are constructed as part of this Project. This
provision shall not be construed to require the construction or installation of any clubhouse, pool,
or other such common amenities or facilities.
The Association shall own and be responsible for the maintenance of the Common Areas
and Facilities pursuant to Section 11 of this Declaration,
6.2. Except as set forth in Section 12.3, the Common Areas and Facilities in the Project
shall be owned and maintained by the Association, and the recordation of the Plat(s) and this
Declaration shall operate to convey title to all Common Areas and Facilities to the Association.
The Association shall be responsible for the maintenance. repair. and snow removal of the non-
public roadways within the Project, if any.
6.3. No Owner, directly or indirectly, shall make any alterations to any of the Common
Areas and Facilities without the prior written consent of the Board, including, without limitation,
any changes to any of the exterior elements of the Units or Buildings, the paint color of the exterior
E
of the Units or Buildings, the landscaping of the Project, or any other component of the Common
Areas and Facilities.
7. LIMITED COMMON AREAS AND FACILITIES; COMMON WALLS.
7.1 Limited Common Areas and Facilities. Limited Common Areas and Facilities shall
mean the portion of the Common Areas and Facilities, if any, shown as Limited Common Areas
on the Plat or indicated in this Declaration as reserved for the use of certain Units or Building to
the exclusion of other Units or Buildings in the Project. Limited Common Areas and Facilities
may include any balconies, attics, shared hallways or stairways. driveways. entry areas or gardens,
or other areas, if any, indicated by the Declaration or the Plat to be for the exclusive use of one or
more but fewer than all of the Units or Buildings in the Project. Notwithstanding the foregoing,
the Declarant shall have no obligation to construct any Limited Common Areas and Facilities
within the Project. Owners may not reallocate Limited Common Areas and Facilities. In addition,
the Project may have certain common, stairwells and hallways that are not designated on the Plat
as "Limited Common Areas," but shall be treated as if they were Limited Common Areas and
Facilities, if they meet certain criteria as set forth in Section 12.3 of this Declaration.
7.2 Common Walls. Where the Units, Buildings or Garage Units are connected by, or
share, a common wall ("Common Wall"), the following provisions shall govern the use,
maintenance, repair and restoration thereof-
7.2.1 Each Unit, Building or Garage Unit sharing a Common Wall with a
different Unit. Building or Garage Unit shall provide such access as may be reasonably
necessary to permit the Association and the Owner of the other Unit, Building or Garage
Unit sharing said Common Wall, and their respective agents and contractors, to maintain
the integrity of the Common Wall, and to repair and restore it as necessary.
7.2.2 Should any Common Wall be damaged or destroyed by the negligence or
other act or omission of an Owner of one of the Units, Buildings or Garage Units sharing
the same, or said Owner's agents, employees, invitees or guests, said Owner shall be
liable, at its sole cost and expense, for all necessary repairs or restoration of said
Common Wall, and related damage to any Unit, Building or Garage Building; provided,
however, that any insurance proceeds received in connection with such damage or
destruction from policies of insurance owned by the Owners of either Unit, Building or
Garage Unit sharing said Common Wall, or by the Association, shall first be applied
toward the costs of repairing or restoring the Common Wall and related damages to
Units, Buildings or Garage Units. All repairs or restorations to be completed pursuant to
this subparagraph shall be completed to the reasonable satisfaction of the affected
Owners.
7.2.3 Should any Common Wall be damaged or destroyed by any cause other
than the negligence, act or omission of the Owner of either Unit or Garage Unit sharing
said Common Wall, or said Owner's agents, employees, invitees or guests, the Owners o C'
the i hits sharing said Common Wall shall be equally liable for all necessary repairs or
restoration of said Common Wall, and related damage to the affected Unit or Garage
10
Unit; provided, however, that any insurance proceeds received in connection with such
damage or destruction from policies of insurance owned by the Owners of either Unit,
Building or Garage Unit sharing said Common Wall, or by the Association, shall first be
applied toward the costs of repairing or restoring the Common Wall and related damages
to the affected Units, Buildings or Garage Units. All repairs or restorations to be
completed pursuant to this subparagraph shall be completed to the reasonable satisfaction
of the affected Owners.
7.2.4 Should any party fail or refuse to complete the repairs or restorations
imposed upon it by these provisions, the Association, after giving written notice to said
party of its intention to do so, may undertake said repairs or restorations, and be entitled
to reimbursement for all costs incurred in connection therewith from said party. Such
reimbursement shall be made within thirty (30) days after the Association has completed
the work and presented said party with a statement and demand for payment setting forth
all costs incurred. The Association shall have a lien against the Unit or Building owned
by the liable Owner to secure payment to the Association of all costs and expenses
incurred in making the necessary repairs or restorations, and the Association shall be
entitled to enforce said lien in the same manner as it is authorized to enforce assessment
liens, including recovery of attorney fees, costs and interest.
7.2.5 In the event of a dispute or controversy between the Owners of Units,
Buildings or Garage Units sharing a Common Wall. as to any matter within or arising out
of the provisions of this Section 7, or the respective use, maintenance, repair, or
replacement of said Common Wall, such dispute or controversy shall be submitted to the
Board of Directors of the Association for arbitration. The decision of the Board with
respect to the issues presented shall be binding upon the parties involved.
8. NATURE AND INCIDENTS OF LOT OWNERSHIP.
8.1. Each Lot and Garage Lot must be held, conveyed, devised, mortgaged,
encumbered, leased, rented, used, occupied, improved and otherwise affected in accordance with
the provisions of this Declaration.
8.2. Subject to the limitations contained in this Declaration, each Unit Owner shall have
the non-exclusive right to use and enjoy the Common Areas and Facilities. the exclusive right to
occupy and use their Lot and the exclusive (or semi -exclusive, as the case may be) right to use any
Limited Common Areas and Facilities designated for exclusive (or semi -exclusive) use by such
Unit Owner, a limited group oi' Unit Owners, or all Unit Owners. Each Garage Owner shall have
the non-exclusive right to use and enjoy the driveways and roadways of the Common Areas and
Facilities providing access to the Garage Units, any other portion of the Common Areas and
Facilities necessary for the intended use of the Garage Units, and the exclusive right to occupy and
use its Garage Lot.
8.3. Except as otherwise provided herein, each Owner shall have the exclusive right to
paint, repaint, tile, wax, paper, carpet or otherwise decorate the interior surfaces of the walls,
ceilings, floors and doors forming the boundaries of the Buildings, Units and Garage Buildings
11
and the surfaces of all interior walls, ceilings, floors and doors within such boundaries. Owners
may not alter or modify any Common Areas or Limited Common Areas within the Project_ Each
Owner shall keep the interior of their Unit, Buildings and Garage Buildings including without
limitation, interior walls, windows, ceilings, floors and permanent fixtures and appurtenances
thereto, in a sanitary condition and in a good state of repair. In addition, each Owner shall keep
their Garage Building, driveways and patios, if these features are included in the Project, in a good
state of repair. In the event that any Unit, Building or Garage Building should develop an
unsanitary condition or fall into a state of disrepair and in the event that the Owner of such Unit,
Building or Garage Building should fail to correct any condition or state of disrepair which is
Owner's responsibility promptly following written notice from the Board, the Board shall have the
right. at the expense of such Owner and without liability to the Owner for trespass or otherwise, to
enter said Unit, Building or Garage Unit and correct or eliminate said unsanitary condition or state
of disrepair. The Association shall collect any costs or expenses incurred by the Association to
correct or eliminate an unsanitary condition or state of disrepair by Specific Assessment against
the subject Unit{s}IBuildinglGarage Building.
8.4. The Board shall have the right to enter into any Unit, Building or Garage Building
for the purpose of cleaning, maintenance, repairs, including emergency repairs, and for the purpose
of abating a nuisance, or a known or suspected dangerous or unlawful activity, and for the purpose
of cleaning, maintaining or repairing any Common Areas and Facilities.
9. TITLE TO LOTS.
9.1. Title to a Lot or Garage Lot may be held or owned by any person or entity and in
any manner in which title to any other real property may be held or owned in the State.
9.2. Title to part of a Lot or Garage Lot may not be separated from any other part thereof
during the period of ownership. and each Lot and Garage Lot shall always be conveyed, devised,
encumbered and otherwise affected only as a complete Lot or Garage Lot. Every gift, devise,
bequest, transfer, encumbrance, conveyance or other disposition of a Lot, Garage Lot, or any part
thereof, shall be construed to be a gift, devise, bequest, transfer, encumbrance or conveyance,
respectively, of the entire Lot or Garage Lot, together with all appurtenant rights created by law
and by this Declaration, including appurtenant membership in the Association as herein set forth.
9.3. The Common Areas and Facilities shall be owned by the Association, and no
Owner may bring any action for partition thereof.
9.4. Each Owner shall have the right to encumber his or her interest in a Lot or Garage
Lot with a Mortgage. However, no Owner shall attempt to or shall have the right to encumber the
Common Areas and Facilities or any part thereof. The Mortgage of any Lot or Garage Lot within
the Project shall be subordinate to all of the provisions of this Declaration, and in the event of
foreclosure the provisions of this Declaration shall be binding upon any Owner whose title is
derived through foreclosure by private power of sale, judicial foreclosure, or otherwise.
9.5. No labor performed or services or materials furnished with the consent of or at the
request of an Owner may be the basis for the filing of a lien against the Lot or Garage Lot of any
12
other Owner. or against any part thereof, or against any other property of any other Owner, unless
the other Owner has expressly consented to or requested the performance of such labor or
furnishing of such services. Express consent shall be deemed to have been given by the Owner in
the case of emergency repairs thereto. Labor performed or services or materials furnished for the
Project, if authorized by the Association and consistent with the Declaration, shall be deemed to
be performed or furnished with the express consent of each Owner. The Owner may remove his
or her Lot or Garage Lot from a lien against two (2) or more Lots, Garage Lots, or any part thereof
by payment to the holder of the lien of the fraction of the total sums secured by such lien which is
attributable to his or her Lot or Garage Lot.
9.6. Every contract for the sale of a Lot or Garage Lot and every other instrument
affecting title to a Lot or Garage Lot within the Project may describe a Lot or Garage Lot by the
name of the Project. the county wherein the Project is located and its Lot Number as indicated in
this Declaration or as shown on the Plat. Such description will be construed to describe the Lot,
the Garage Lot, the applicable Unit, and to incorporate all the rights incident to ownership of a Lot
within the Project and all of the limitations on such ownership as described in this Declaration.
10. RESTRICTIONS ON USE.
The Lots, Buildings, Units, and Common Areas and Facilities, including but not limited to
the Limited Common Areas and Facilities, except as otherwise permitted in writing by the Board,
shall be used in accordance with the following restrictions:
10.1. Only those spaces, if any, designated on the Plat as Commercial Spaces and Garage
Buildings may be used for commercial purposes. Any Commercial Spaces and Garage Buildings
must be used exclusively in a manner consistent with all applicable laws, ordinances, and
regulations governing such spaces. Unless specifically designated on the Plat as a Commercial
Space or as a Garage Building, each Unit shall be used for residential purposes only.
Notwithstanding the foregoing, home -based businesses which have no impact on the Project
beyond the ordinary impact of residential use, and which are approved under applicable zoning
regulations, are permissible.
10.2. No noxious, destructive or offensive activity shall be carried on or placed in or upon
any Unit, Lot, Garage Building, or in the Common Areas, or Limited Common Areas, or any part
thereof, which shall interfere with the legal rights of other Owners nor shall anything be done
therein which is or may become an annoyance or nuisance to any other Owner or to any person at
any time lawfully residing in the Project. No activities shall be conducted, nor Improvements
constructed, in or upon any part of the Project which are or may become unsafe or hazardous to
any person or property. Without limiting the breadth of the foregoing, aluminum foil, sheets, linen,
bed sheets. newspapers. or any other similar materials may not be used to cover the windows in
any Unit or Garage Unit. The Common Areas and Facilities shall be used only in a manner which
is consistent with their community nature and the use restrictions applicable to the Units. Without
limiting the breadth of the foregoing sentence. (i) no automobile or other vehicle shall be parked
at any location within the Project which impairs or tends to impair vehicular or pedestrian access
13
within the Project or to and from its various parts; (ii) no garments, rugs. or other household items,
or wash lines of any kind may be hung, erected, or maintained outside of an Owner's Unit; (iii) no
Owner or occupant shall discard or permit any items to fall from the windows of his or her Unit;
(iv) no dogs are permitted on common areas unless the dog is on a leash; and (v) each pet owner
must immediately remove any animal droppings and dispose of them in a garbage container.
10.3. Garage Units and Attached Garages may he used solely for the purpose of parking
motor vehicles; provided, however. any Garage Unit utilized by the Association may be used for
the additional purpose of storing Association maintenance related items.
10.4. The only commercial signs permitted in the Project are those signs, if any, which
are approved by the applicable municipal authority for use in connection with the Commercial
Spaces, or the leasing of Garage Units, if any, within the Project. Otherwise, no signs, flags or
advertising devices of any nature, including, without limitation, informational or directional signs
or devices, shall he erected or maintained on any part of the Project, without the prior inspection
and written approval of the Board, except as may be necessary temporarily to caution or warn of
danger. If the Board consents to the erection of any such signs or devices, the same shall be
removed promptly at the request of the Board. Nothing in this Section 10.3 shall be deemed to
restrict the right of Owners to display political, religious, and holiday signs subject to reasonable
time, place, and manner restrictions adopted by the Board.
10.5. No pets, animals, livestock or poultry of any kinds shall be bred in or kept on or
about the Project, except as may be allowed by the Association in accordance with rules and
regulations governing pets which may be promulgated by the Board. Pets shall not create a
nuisance, and the following acts may constitute a nuisance: (a) causing damage to the property of
anyone other than the pet owner; (b) causing unsanitary conditions; (c) defecating on any Common
Areas and Facilities when the feces are not immediately cleaned up by the responsible party; (d)
barking, howling, whining or making other disturbing noises in an excessive or continuous fashion;
(e) harassing passersby by lunging at them or chasing vehicles; (f) attacking or threatening to attack
people or other domestic pets; or (g) otherwise acting so as to unreasonably bother, annoy or
disturb other residents or unreasonably interfering with their right of peaceful and quiet enjoyment
of their Units. Pets in the Common Areas must be in a cage or on a leash at all times. Pets may
not be tied or tethered in any Common Areas. The Board may establish and enforce rules and
regulations governing pets within the Project and may charge a deposit for pets within the Project.
10.6. No Owner shall, without the prior written consent of the Board, make or permit to
be made any alteration, improvement or addition in or to any Building or do any act that would
impair the structural soundness or integrity of the Buildirips or the safety of property, impair any
easement or hereditament appurtenant to the Project, or make or permit to be made any alteration,
improvement or addition to the Common Areas and Facilities.
10.7. There shall be no obstruction of the Common Areas and Facilities by any Owner.
Owners shall neither store nor leave any of their personal property in the Common Areas and
Facilities and Limited Common Areas and Facilities, including, without limitation, shared
hallways or stairways, if any, within the Project, except with the prior consent of the Board.
14
10.8. Nothing shall be done or kept in any Unit, Building, Garage Unit, or in the Common
Areas and Facilities or any part thereof, which would result in cancellation of the insurance on the
Project or any part thereof, nor shall anything be done or kept in any Unit or Garage Unit which
would increase the rate of insurance on the Project or any part thereof over what the Association,
but for such activity, would pay, without the prior written consent of the Board. Nothing shall be
done or kept in any Unit, Garage Unit or in the Common Areas and Facilities or any part thereof
which would be in violation of any statute or rule, ordinance, regulation, permit or other validly
imposed requirement of any governmental body. No damage to, or waste of, the Common Areas
and Facilities or any part thereof shall be committed by any Owner or guest, lessee, licensee or
invitee of any Owner, and each Owner shall indemnify and hold the Association and the other
Owners harmless against all loss resulting from any such damage or waste caused by him or his or
her guests, lessees, licensees or invitees.
10.9. Each Owner shall comply strictly with all rules and regulations adopted by the
Association for the governance of the IJnits, the Garage Units, the Common Areas, and the Project,
as such rules and regulations may be modified, amended and construed by the Association in the
sole discretion of its Board.
10.10. Any Lease agreement between an Owner and a lessee regarding a Unit or Garage
Unit shall be subject in all respects to the provisions of this Declaration, the Association's Articles
of Incorporation ("Articles"), and Bylaws.
10.10.1. To ensure consistency and uniformity within the Project, each Owner
shall be required to utilize the Property Manager for the Leasing, rental or similar use of
any Unit within the Project. Such Owner shall be responsible for payment of such fees
and costs as shall be imposed by the Property Manager under the Property Management
Agreement. An Owner who has entered into a Leasing, rental or similar agreement with
an occupant of the Owner's Unit that has not been approved by the Property Manager
shall be required to pay a fine in an amount established by the Board. Such fine shall
constitute a lien and the collection thereof shall be in the same manner as the procedure
set forth for the collection of Assessments in Section 19.1 hereunder.
10.10.2. No Units or Garage Units may be rented for overnight rentals or any
rental term shorter than 30 days.
10.10.3. The Declarant shall appoint the initial Property Manager and enter into
a written Property Management Agreement, setting forth the rights, duties and obligations
of the Property Manager including, without limitation, the services to be provided, which
shall include the Leasing of all Units, Garage Units and any other applicable property
within the Project. The Property Management Agreement shall also include the standards
of performance required and the rights and remedies applicable in the event of any
breaches or default. The rights and remedies shall include, without limitation, the rights
to terminate the Property Management Agreement in accordance with the terms and
provisions thereof. The term of the Property Management Agreement shall expire two (2)
years after the expiration of the Declarant Control Period, unless terminated earlier in
Declarant's sole discretion. Thereafter, the Board shall select the Property Manager and
15
enter into a written Property Management Agreement setting forth the rights, duties and
obligations of the Property Manager including, without limitation, the services to be
provided, the standards of performance required and the rights and remedies applicable in
the event of any breaches or default. The rights and remedies shall include, without
limitation, the rights to terminate the Property Management Agreement in accordance
with the terms and provisions thereof. The Property Management Agreements to be
entered into by the Board shall include provide for a minimum term of two (2) years and
a maximum term of three (3) years.
10.10.4. Other than the foregoing, there is no restriction on the right of any Owner
to Lease his Unit or Garage Unit. An Owner shall be responsible and liable for any
damage to the Project caused by its tenant.
10.11. NO FUTURE SUBDIVIDING. There shall be no future subdivision of any Unit or
Building within the Project.
11. ASSOCIATION AND BOARD OF DIRECTORS.
11.1. Each Owner shall be entitled and required to be a member of the Association. There
shall be two (2) classes of membership in the Association, as set forth in Section 22 of this
Declaration. Class A Membership will begin immediately and automatically upon becoming a
Unit Owner and shall terminate immediately and automatically upon ceasing to be a Unit Owner.
Class A Memberships will begin for the Garage Owner upon the termination of its Class B
Membership, if the Garage Owner is the Declarant. If the Garage Owner is not the Declarant,
Class A Membership will begin for the Garage Owner immediately and automatically upon
becoming a Garage Owner and shall terminate immediately and automatically upon ceasing to be
an Owner of a Garage Lot. If title to a Lot or Garage Lot is held by more than one person, the
membership appurtenant to that Lot or Garage Lot shall be shared by all such persons in the same
proportionate interest and by the same type of tenancy in which title to the Lot or Garage Lot is
held. An Owner of a Lot shall be entitled to membership in the manner set forth in Section 22.1
of this Declaration. A Garage Owner shall be entitled to membership in the manner set forth in
Section 22.1 of this Declaration. Each membership shall be appurtenant to the Lot or Garage Lot
to which it relates and shall be transferred automatically by conveyance of that Lot or Garage Lot.
Ownership of a Lot or Garage Lot within the Project cannot be separated from the Association
membership appurtenant thereto, and any devise. encumbrance, conveyance or other disposition
of a Lot or Garage Lot shall constitute a devise, encumbrance, conveyance or other disposition,
respectively, of such Owner's or Garage Owner's membership in the Association and the rights
appurtenant thereto. No person or entity other than an Owner or Garage Owner may be a member
of the Association, and membership in the Association may not be transferred except in connection
with the transfer of a Lot or Garage Lot.
I I — The Association shall be governed by the following provisions:
11.2.1. The management and maintenance of the Project and the administration of
the affairs of the Association shall be conducted by a Board of Directors consisting of at
least three (3) natural persons as provided in the Bylaws. Initially, the Board shall be
16
appointed or elected as provided in this Declaration and in the Bylaws. Notwithstanding
the foregoing, the Declarant shall have the exclusive right to appoint, remove and replace
all members of the Board during the Declarant Control Period.
11.2.2. Except as otherwise provided herein, the Board shall have all the powers,
duties and responsibilities as are now or may hereafter be provided by this Declaration
and the Bylaws, including but not limited to the following:
11.2.2.1. To make and enforce all rules and regulations governing the
Use, operation, and maintenance of the Project, the Buildings, the Units, the Garage
Buildings and the Garage Units.
11.2.2.2_ To carry out through a HOA Manager those of its functions
which are properly the subject of delegation. A HOA Manager so engaged shall be
an independent contractor and not an employee of the Association or the Board,
shall be responsible for managing the Project for the benefit of the Association and
the Owners, and shall, to the extent permitted by law and by the terms of the
agreement with the Board, be authorized to perform any of the functions or acts
required or permitted to be performed by the Board itself. The cost of retaining or
employing a HOA Manager shall be a Common Expense.
11.2.2.3. To engage the services of accountants, attorneys or other
employees or agents and to pay to said persons a reasonable compensation
therefore, and to appoint committees as determined by the Board.
11.2.2.4. To operate, maintain, repair, improve and replace the Common
Areas and Facilities.
11.2.2.5. To determine and pay the Common Expenses.
11.2.2.6. To assess and collect the proportionate share of Common
Expenses from the Owners, as provided in Section 19 of this Declaration.
11.2.2.7. To assess and collect the Garage Assessments.
11.2.2.8. To levy Specific Assessments on Owners or Units, as provided
in Section 19 of this Declaration.
11.2.2.9. To enter into contracts (including Property Management
Agreements commencing two (2) years after the Declarant Control Period), deeds,
leases and/or other written instruments or documents and to authorize the execution
and delivery thereof by the appropriate officers.
11.2.2.10. To open bank accounts on behalf of the Association and to
designate the signatories therefor.
17
11.2.2.11. To purchase, hold. sell, convey, mortgage or lease anyone (1)
or more t Jnits in the name of the Association or its designee.
11.2.2.12. To bring, prosecute and settle any lawsuit, binding arbitration,
mediation, or governmental proceeding for itself, the Association and the Project,
provided that it shall make no settlement which results in a liability against the
Board, the Association or the Project in excess of $25,000.00, without the prior
approval of a majority of the Total Votes of the Association at a meeting or by
written ballot distributed to Owners by mail; provided, any settlement which would
be paid from proceeds of insurance which may be settled by the Association's
insurance carrier and which in either case results in no actual liability of funds of
the Association in excess of $20.000 shall not require Association approval.
11.2.2.13. To obtain insurance for the Association with respect to the
Buildings and the Common Areas and Facilities, as well as worker's compensation
insurance, as needed.
11.2.2.14. To repair or restore the Project following damage or destruction
or a permanent taking by the power of, or power in the nature of, eminent domain,
or by an action or deed in lieu of condemnation.
11.2.2.15. To own, purchase or lease, hold and sell or otherwise dispose
of, on behalf of the Owners, items of personal property necessary to or convenient
to the management of the business and affairs of the Association and the Board and
to the operation of the Project, including without limitation furniture, furnishings,
fixtures, maintenance equipment, appliances and office supplies.
11.2.2.16. To keep adequate books and records and implement the policies
and procedures for the inspection of the books and records of the Project by Owners
in accordance with the terms of the Bylaws. The Association or the Board shall
make available to the Owners. Mortgagees and the holders, insurers and guarantors
of the First Mortgage on any Unit current copies of the Declaration, Articles,
Bylaws and other rules governing the Project and other books, records and financial
statements of the Association. "Available'" means available for inspection, upon
request, during normal business hours or under other reasonable circumstances.
11.2.2.17. To do all other acts necessary for the operation, maintenance
and security of the Project, including the maintenance and repair of any Unit if the
same is necessary to protect or preserve the Project and the implementation of
security measures, including closed circuit television.
1.2.2.18. To prepare, adopt, amend and disseminate budgets and other
information from time to time in accordance with the terms of the Bylaws.
11.2.2.19. To grant conveyances, easements and rights -of -way over the
Common Areas and Facilities.
18
11.2.3. Members of the Board. the officers and any assistant officers, agents and
employees of the Association (i) shall not be liable to the Owners as a result of their
activities as such for any mistake of judgment, negligence or otherwise, except for their
own willful misconduct or bad faith; (ii) shall have no personal liability in contract to an
Owner or any other person or entity under any agreement, instrument or transaction
entered into by them on behalf ol'the Association in their capacity as such; (iii) shall have
no personal liability in tort to any Owner or any person or entity, direct or imputed, by
virtue of acts performed by there, except for their own willful misconduct or bad faith,
nor for acts performed for them in their capacity as such; and (iv) shall have no personal
liability arising out of the use, misuse or condition of the Project, which might in any way
be assessed against or imputed to them as a result or by virtue of their capacity as such.
11.2.4. When a member of the Board is sued for liability for actions undertaken in
his role as a member of the Board, the Association shall indemnify him for his losses or
claims, and undertake all costs of defense, until and unless it is proven that he acted with
willful or wanton misfeasance or with gross negligence. After such proof the Association
is no longer liable for the cost of defense, and may recover costs already expended from
the member of the Board who so acted. Members of the Board are not personally liable
to the victims of crimes occurring at the Project. Punitive damages may not be recovered
against the Association. but may. as permitted by law, be recovered from any persons
whose gross negligence gave rise to the asserted damages.
11.2.5. Neither the Board nor the HOA Manager shall sell any of the Property of
the Association except as permitted by this Declaration.
12. MAINTENANCE, ALTERATION AND IMPROVEMENT.
12.1. The Board, acting on behalf of the Association and, subject to the rights and duties
of the Owners as set forth in this Declaration. shall be responsible for the exclusive management
and control of the Common Areas and Facilities, Limited Common Areas and Facilities, and all
Improvements thereon and shall keep the same in a good, clean, attractive, safe and sanitary
condition, order and repair. The Board shall be responsible for the maintenance and repair of the
exterior of the Buildings, the exterior of the Garage Buildings, the roofs of the Buildings, the roofs
of the Garage Buildings and other Improvements and grounds designated as Common Areas and
Facilities and Limited Common Areas and Facilities, including, without limitation, painting
thereof, repair and replacement of exterior trim, siding, railings, roofs and fences, and the
maintenance of all landscaping. The Board shall also be responsible for maintenance, repair and
replacement of any and all other Common Areas and Facilities within the Project. The costs
associated with the maintenance, replacement and repair of the Common Areas and Facilities shall
be a Common Expense. The cost associated with the maintenance, replacement and repair of
Limited Common Areas may be a Common Expense, if the cost applies to all Limited Common
Areas in the Project, or an expense attributable exclusively to the affected Owners and enforceable
as a Specific Assessment The costs associated with the maintenance, replacement and repair of
the rooftops and exterior of the Garage Buildings shall be part of the Garage Assessment. Such
expenses shall be attributable to the Garage Owner and enforceable as Garage Assessments.
Notwithstanding any other provision of this Declaration, if the Plat indicates that the Owners are
19
responsible for any of the Limited Common Areas and Facilities of the Project, then the Owner or
Owners of Units adjoining such Limited Common Areas and Facilities be responsible for the
maintenance thereof, and shall bear the cost of the same.
12.2. Some of the Common Areas and Facilities or Limited Common Areas and Facilities
are, or may be, located within the Buildings, attached to the exterior of the Buildings, or may be
conveniently accessible only through the Units. The Association shall have an easement and
irrevocable right to enter each Unit and Building in order to access, maintain, repair and/or replace,
as necessary, all Common Areas and Facilities and Limited Common Areas and Facilities from
time to time during such reasonable hours as may be necessary, or for making any emergency
repairs at any time and when necessary to prevent damage to the Common Areas and Facilities,
the Limited Common Areas and Facilities, or to any Unit. The Association shall also have the
irrevocable right to have access to any Unit or Garage Unit when necessary in connection with any
cleaning, maintenance, repair, replacement, painting, landscaping, construction or reconstruction
for which the Association is responsible, or for the purpose of abating a nuisance or a known or
suspected dangerous or unlawful condition. Such entry shall be made with as little inconvenience
to the Owners as is practicable under the circumstances and any damage caused thereby shall be
repaired by the Association.
12.3. Notwithstanding any provision in this Declaration to the contrary, the Association
shall also be responsible to manage, maintain and repair, as a Common Expense of the Association,
any and all common stairwells and hallways that are not designated as Limited Common Areas on
the Plat, but are located within a Unit shown on the Plat, if such stairwells and hallways provide
access to: two (2) or more Units, at least one Unit and at least one Commercial Space, or two (2)
or more Commercial Spaces. If the Project has common stairwell(s) and hallway(s) that meet one
of these criteria, then the stairwell(s)/hallway(s) shall be treated as if they were Limited Common
Areas for purposes of the maintenance and repair obligations of the Board and the Association.
12.4. Additions or Capital Improvements to the Project which cost no more than $25.000
may be authorized by the Board alone. Additions or Capital Improvements the cost of which
exceed $25,000 and which are not part of the Board -approved annual budget of the Association
must, prior to being constructed, be authorized by at least a simple majority of the undivided
ownership in the Project. Any additional or Capital Improvements which would materially alter
the nature of the Project must, regardless of its cost and prior to being constructed. be authorized
by at least sixty-seven percent (67%) of the Total Votes of the Association. For purposes of this
Section 12.4, "materially alter the nature of the Project" shall mean any addition or Capital
Improvement that changes the Project from residential to any other use, such as any commercial
space not already designated on the Plat, or to any form of timesharing.
12.5. No Owner shall enlarge or otherwise modify the exterior of his/her Unit, Building,
or Limited Common Area or add any devices or structures such as, for illustration and not
limitation, fences, greenhouses, solariums, room additions, enclosing decks, hot tubs, unless and
until the Owner has received written consent from the Board. The Board may function by itself
or may appoint a committee to be charged with the responsibility of keeping the Project's exterior
and common areas consistent in appearance.
20
12.6. The Association has the right to be responsible for paying all water and sewer costs
throughout the Project. This shall include costs for water usage based on the water meters located
within the Project and includes all water service to and sewer service from the Units. All such
water and sewer costs and expenses shall be considered Common Expenses of the Association.
13. INSURANCE.
13. L Unless otherwise required by law, the Association shall at all times maintain in
force insurance meeting the following requirements:
13.1.1. A "master" or "blanket" type policy of property insurance shall be
maintained covering the entire Project, including: Common Areas and Facilities and
Limited Common Areas and Facilities; all Buildings including all Units (other than the
interior contents thereof): all Garage Buildings; fixtures, building service equipment.
personal property and supplies comprising a part of the Common Areas or Facilities or
owned by the Association, but excluding land, foundations, excavations, and other items
normally not covered by such policies. References herein to a "master" or "blanket" type
policy of property insurance are intended to denote single entity insurance coverage. As
a minimum, such "master" or "blanket" policy shall afford protection against loss or
damage by fire, by other perils normally covered by the standard extended coverage
endorsement, and by all other perils which are customarily covered with respect to projects
similar to the Project in construction, location, and use, including (without limitation) all
perils normally covered by the standard "all risk" endorsement, where such endorsement
is available. Such "master" or "blanket" policy shall be in an amount not less than one
hundred percent (100%) of current replacement cost of all elements of the Project covered
by such policy, exclusive of land, foundations, excavation, and other items normally
excluded from coverage. If the Board deems such advisable, the insurance policy shall
include either of the following endorsements to assure full insurable value replacement
cost coverage: (1) a Guaranteed Replacement Cost Endorsement (under which the insurer
agrees to replace the insurable property regardless of the cost) and, if the policy includes
a co-insurance clause, an Agreed Amount Endorsement (which waives the requirement
for co-insurance); or (2) a Replacement Cost Endorsement (under which the insurer agrees
to pay up to one -hundred percent of the property's insurable replacement cost but no more)
and, if the policy includes a co-insurance clause, an Agreed Amount Endorsement (which
waives the requirement for co-insurance). Unless the Board otherwise determines. the
maximum deductible amount for such a policy covering the Common Areas and Facilities
shall be Ten Thousand Dollars ($10,000) and for losses related to individual Units that are
covered by such a policy, the maximum deductible related to each individual Unit shall
be Ten Thousand Dollars ($10,000.00). Funds to cover these deductible amounts shall be
included in the Association's operating reserve account.
13.1.2. If any habitable structure located within the Project is or comes to be
situated in a Special Flood Hazard Area as designated on a Flood Insurance Rate Plat, a
"master" or "blanket" policy of flood insurance shall be maintained covering the
Buildings (a separate policy is required for each separate multi -story building that houses
Units), any machinery and equipment that are not part of a Building and all Common
21
Areas and Facilities within the Project (hereinafter "Insurable Property") in an amount
deemed appropriate, but not less than the lesser of. (1) the maximum limit of coverage
available under the National Flood Insurance Administration Program for all Buildings
and Insurable Property within any portion of the Project located within a designated flood
hazard area; or (2) one hundred percent (100%) of the insurable value of all such facilities.
Unless the Board otherwise determines, the maximum deductible amount for any such
policy shall be the lesser of Five Thousand Dollars ($5,000.00) or one percent (1%) of the
policy face amount.
13.1.3. The name of the insured under each policy required to be maintained by
the foregoing Sections 13.1.1 and 13.1.2 shall be the Association for the use and benefit
of the individual Owners. (Said Owners shall be designated by name, if required.)
Notwithstanding the requirement of the two immediately foregoing sentences, each such
policy may be issued in the name of an authorized representative of the Association,
including any Insurance Trustee with whom the Association has entered into an Insurance
Trust Agreement, or any successor to such Trustee, for the use and benefit of the
individual Owners. Loss payable shall be in favor of the Association (or Insurance
Trustee), as a trustee for each Owner and each such Owner's Mortgagee. Each Owner
and each such Owner's Mortgagee, if any, shall be beneficiaries of such policy. Evidence
of insurance shall be issued to each Owner and Mortgagee upon request.
13.1.4. If the Board deems such advisable, each policy required to be maintained
by the foregoing Sections 13.1.1 and 13.1.2 shall contain the standard mortgage clause, or
equivalent endorsement (without contribution), commonly accepted by private
institutional mortgage investors in the area in which the Project is located. In addition,
such mortgage clause or another appropriate provision of each such policy shall provide
that the policy may not be canceled or substantially modified without at least ten (10)
days' prior written notice to the Association and to each Mortgagee which is listed as a
scheduled holder of a Mortgage in the policy.
13.1.5. Each policy required to be maintained by the foregoing Sections 13.1.1 and
13.1.2 shall provide, if available, for the following: recognition of any insurance trust
agreement; a waiver of the right of subrogation against Owners individually; the insurance
is not prejudiced by any act or neglect of individual Owners which is not in the control of
such Owners collectively or the Association; and the policy is primary in the event the
Owner has other insurance covering the same loss.
13.1.6. In contracting for the policies of insurance required to be maintained under
this Section 13.1, the Board shall make reasonable efforts to secure, if the Board deems
such advisable, coverage which provides the following endorsements: 0) "Inflation
Guard Endorsement"; and (2) "Building Ordinance or Law Endorsement", if the
enforcement of any building, zoning, or land use law will result in loss or damage,
increased cost of repairs or reconstruction, or additional demolition and removal costs (the
endorsement must provide for contingent liability from the operation of building laws,
demolition costs, and increased costs of reconstruction).
22
13.1.7. The Association shall at all times maintain in force and pay the premiums
for "blanket" fidelity bonds for all officers, members, and employees of the Association
and for all other persons handling or responsible for funds of or administered by the
Association whether or not that individual receives compensation for services.
Furthermore, where the Association has delegated some or all of the responsibility for the
handling of funds to the HOA Manager, the HOA Manager shall provide "blanket" fidelity
bonds, with coverage identical to such bonds required of the Association, for the HOA
Manager's officers, employees and agents handling or responsible for funds of, or
administered on behalf of, the Association. The total amount of fidelity bond coverage
required shall be based upon the Association's best business judgment and shall not be
less than the estimated maximum of funds, including reserve funds, in the custody of the
Association, or the HOA Manager, as the case may be, at any given time during the term
of each bond. The bonds required shall meet the following additional requirements:
(1) the fidelity bonds shall name the Association as obligee: (2) the bonds shall contain
waivers by the issuers of the bonds of all defenses based upon the exclusion of persons
serving without compensation from the definition of "employees", or similar terms or
expressions; (3) the premiums on all bonds required herein for the Association. (except for
premiums on fidelity bonds maintained by the HOA Manager for its officers, employees
and agents) shall be paid by the Association as part of the Common Expenses; and (4) the
bonds shall provide that they may not be canceled or substantially modified (including
cancellation for nonpayment of premium) without at least ten (10) days' prior written
notice to the Association.
13.1 X The Association shall maintain in force, and pay the premium for a policy
providing commercial general liability insurance coverage covering all of the Common
Areas and Facilities, Building exteriors, public ways in the Project, all other areas of the
Project that are under the Association's supervision, and any Commercial Spaces owned
by the Association, if any, whether or not such spaces are leased to some third party. The
coverage limits under such policy shall be in amounts generally required by private
institutional mortgage investors for projects similar to the Project in construction, location,
and use. Nevertheless, such coverage shall be for at least One Million Dollars
($1,000,000) for bodily injury, including deaths of persons, and property damage arising
out of a single occurrence. Coverage under such policy shall include, without limitation.
legal liability of the insureds for property damage, bodily injuries and deaths of persons
in connection with the operation, maintenance, or use of the Common Areas and Facilities,
Building exteriors, and legal liability arising out of lawsuits related to employment
contracts of the Association. Additional coverages under such policy shall include
protection against such other risks as are customarily covered with respect to projects
similar to the Project in construction, location, and use, including but not limited to (where
economically feasible and if available), host liquor liability, contractual and all -written
contract insurance. employers liability insurance, and comprehensive automobile liability
insurance. If such policy does not include "severability of interest" in its terms, the policy
shall include a special endorsement to preclude an insurer's denial of any Owner's claim
because of negligent acts ofthe Association or any other Owner. Such policy shall provide
that it may not be canceled or substantially modified, by any party, without at least ten
23
(10) days' prior written notice to the Association and to each First Mortgagee which is
listed as a scheduled holder of a Mortgage in such policy.
13.1.9. Notwithstanding any of the foregoing provisions and requirements relating
to property or liability insurance. there may be named as an insured on behalf of the
Association. the Association's authorized representative, including any trustee with whom
the Association may enter into any Insurance Trust Agreement or any successor to such
trustee (each of whom shall be referred to herein as the "Insurance Trustee"), who shall
have exclusive authority to negotiate losses under any policy providing such property or
liability insurance. Each Owner hereby appoints the Association, or any Insurance
Trustee or substitute Insurance Trustee designated by the Association, as his or her
attorney -in -fact for the purpose of purchasing and maintaining such insurance, including:
the collection and appropriate disposition of the proceeds thereof: the negotiation of losses
and execution of releases of liability; the execution of all documents, and the performance
of all other acts necessary to accomplish such purpose. The Association, or any Insurance
Trustee. shall receive, hold, or otherwise properly dispose of any proceeds of insurance in
trust for the use and benefit of the Owners and their Mortgagees, as their interests may
appear.
Each insurance policy maintained pursuant to the foregoing Sections 13.1.1, 13.1.2,
13.1.7_ and 13.1.8 shall, to the extent reasonably possible, be written by an insurance carrier
which is licensed to transact business in the State and which has a B general policyholder's
rating or a financial performance index of b or better in the Best's Key Rating Guide or an
A or better rating from Demotech, Inc., or which is written by Lloyd's of London. No such
policy shall be maintained where: (1) under the terms of the carrier's charter, bylaws, or
policy, contributions may be required from, or assessments may be made against, an
Owner, a Mortgagee, the Board, or the Association; (2) by the terms of the carrier's charter,
bylaws, or policy, loss payments are contingent upon action by the carrier's board of
directors, policyholders, or members; or (3) the policy includes any limiting clauses (other
than insurance conditions) which could prevent the party entitled (including, without
limitation, the Board, the Association, or Owner) from collecting insurance proceeds. The
provisions of this Section 13.1.9 and of the foregoing Sections 13.1.1, 13.1.2, 13.1.7, and
13.1.8 shall not be construed to limit the power or authority of the Association to obtain
and maintain insurance coverage, in addition to any insurance coverage required hereunder,
in such amounts and in such forms as the Association may deem appropriate from time to
time.
13.2. All insurance policies shall be reviewed at least annually by the Board in order to
ascertain whether the coverage contained in the policies is sufficient to make any necessary repairs
or replacement of the Project which may have been damaged or destroyed. In addition, such
policies shall be reviewed to determine their compliance with the provisions of this Declaration
and the Act.
24
14. DESTRUCTION OR DAMAGE.
14.1. All of the Owners irrevocably constitute and appoint the Association as their true
and lawful attorney -in -fact in their name, place and stead for the purpose of dealing with the
Project upon its damage or destruction as hereinafter provided. Acceptance by any grantee of a
deed from any Owner shall constitute an appointment by said grantee of the Association as his or
her attorney -in -fact as herein provided. As attorney -in -fact, the Association shall have full and
complete authorization, right and power to make. execute and deliver any contract, deed or other
instrument with respect to the interest of an Owner which may be necessary or appropriate to
exercise the powers herein granted. All insurance proceeds shall be payable to the Association
except as otherwise provided in this Declaration.
14.2. Repair and reconstruction of the Improvements as used herein means restoring the
Project to substantially the same condition in which it existed prior to the damage or destruction,
with each Unit and the Common Areas and Facilities having substantially the same vertical and
horizontal boundaries as before.
14.3. In the event all or any part of the Project is damaged or destroyed, the Association
shall proceed as follows:
14.3.1. The Association shall give timely written notice to any holder of any First
Mortgage on a Unit who requests such notice in writing in the event of substantial damage
to or destruction of any part of'the Common Areas or Facilities or a Unit subject to such
First Mortgage.
14.3.2. As soon as practicable after an event causing damage to or destruction of
any part of the Project, the Association shall obtain complete and reliable estimates of the
costs to repair and reconstruct the part of the Project damaged or destroyed.
14.3.3. If the proceeds of the insurance maintained by the Association equal or
exceed the estimated costs to repair and reconstruct the damaged or destroyed part of the
Project, such repair and reconstruction shall be carried out.
14.3.4. If the proceeds of the insurance maintained by the Association are less than
the estimated costs to repair and reconstruct the damaged or destroyed part of the Project
and if less than seventy-five percent (75%) of the Project is damaged or destroyed, such
repair and reconstruction shall nevertheless be carried out. The Association shall levy a
Special Common Assessment sufficient to provide funds to pay the actual costs of such
repair and reconstruction to the extent that such insurance proceeds are insufficient to pay
such costs. Such Special Common Assessment shall be allocated and collected as
provided in Section 19.1.5 of this Declaration, except that the vote therein specified shall
be unnecessary. Further levies may be made in like manner if the amounts collected
(together with the proceeds of insurance) are insufficient to pay all actual costs of such
repair and reconstruction.
14.3.5. If the proceeds of the insurance maintained by the Association are less than
the estimated costs to repair and reconstruct the damaged or destroyed part of the Project
25
and if seventy-five percent (75%) or more of the Project is damaged or destroyed, such
damage or destruction shall be repaired and reconstructed, but only if within one hundred
(100) days following the damage or destruction, Owners entitled to vote at least seventy-
five percent (75%) of the votes of the Total Votes of the Association vote to carry out
such repair and reconstruction. If, however. the Owners do not, within one hundred (100)
days after such damage or destruction, elect by a vote of at least seventy-five percent
(75%) of the votes of the Total Votes of the Association to carry out such repair and
reconstruction, the Association shall record in the office of the County Recorder of the
county in which the Project is located a notice setting forth such facts. Upon the recording
of such notice, the following shall occur:
14.3.5.1. The Project shall be subject to an action for partition at the suit
of any Owner, in which event the net proceeds of any sale resulting from such suit
for partition, together with the net proceeds of the insurance of the Project, if any,
shall be considered as one fund and shall be divided among all Owners in an amount
equal to the pro-rata interests of the Owncrs in the Project.
14.3.5.2. In no event shall an Owner of a l init or any other party have
priority over the holder of any first Mortgage on such Unit with respect to the
distribution to such Unit of any insurance proceeds.
14.4. If the damage or destruction is to be repaired or reconstructed as provided above.
the Association shall, as soon as practicable after receiving the said estimate of costs, commence
and diligently pursue to completion the repair and reconstruction of that part of the Project
damaged or destroyed. The Association may take all necessary or appropriate action to effect the
repair and reconstruction, as attorney -in -fact for the Owners, and no consent or other action by any
Owner shall be necessary in connection therewith, except as otherwise expressly provided herein.
The Project shall be restored or repaired to substantially the same condition in which it existed
prior to the damage or destruction, with each Unit and the Common Areas and facilities having
the same vertical and horizontal boundaries as before. Any restoration or repair of the Project,
after a partial condemnation or damage due to an insurable hazard. shall be performed substantially
in accordance with the Declaration and the original architectural plans and specifications.
14.5. If repair or reconstruction is to occur, the insurance proceeds held by the
Association and any amounts received from Common Assessments shall constitute a fund for the
payment of costs of repair and reconstruction after casualty. It shall be deemed that the first money
disbursed in payment for costs of repair and reconstruction shall be made from insurance proceeds;
if there is a balance after payment of all costs of such repair and reconstruction, such balance shall
be distributed to the Owners equally.
14.6. If any Owner (or the family members, guests, tenants or invitees of such Owner)
causes any damages to or destruction of any Common Areas and facilities or any Limited
Common Areas, said Owner shall be fully responsible lot- all costs reasonably incurred to repair
the damage or replace any items that need to be replaced as a result of the damage. All costs
incurred by the :1ssociation in connection with such repair and/or replacement shall be secured by
a lien in favor of the Association, and the Association shall have the same rights with respect to
26
collection of said amounts and/or enforcement of the lien as it does with respect to collection of
assessments and enforcement of the lien securing payment of assessments as set forth in Section
19 of this Declaration.
15. TERMINATION.
1 y.1. Except as otherwise provided in this Declaration, including but not limited to
Section 14, the Project may be terminated only by agreement of Owners entitled to vote at least
sixty-seven percent (67%) of the Total Votes of the Association at a meeting of Owners duly called
for such purpose at which a quorum is present. and with any and all approvals necessary from the
governing City or the county with jurisdiction over the Project. Notwithstanding the foregoing,
during the Declarant Control Period, the Project may only be terminated if the Declarant approves
termination of the Project.
15.2. Reserved.
15.3. A termination agreement may provide that all of the Project shall be sold following
termination. If, pursuant to the agreement, any real estate in the Project is to be sold following
termination, the termination agreement shall set forth the minimum terms of the sale.
15.4. The Association, on behalf of the Owners, may contract for the sale of real estate
in the Project, but the contract is not binding on the Owners until approved pursuant to Sections
15.1 and 15.2. If any real estate in the Project is to be sold following termination, title to that real
estate on termination vests in the Association as trustee for all Owners. Thereafter, the Association
has all powers necessary and appropriate to affect the sale. Until the sale has been concluded and
the proceeds of the sale distributed, the Association continues in existence with all powers it had
before termination. Proceeds of the sale shall be distributed to Owners and Mortgagees as their
interests may appear, based on the relative value of each Unit. Unless otherwise specified in the
termination agreement, as long as the Association holds title to the real estate, each Owner and
their successors in interest have an exclusive right to occupancy of the portion of the real estate
that formerly constituted their Unit in accordance with the terms of this Declaration. During the
period of that occupancy right, each Owner and their successors in interest remain liable for all
assessments and other obligations imposed on Owners by this Declaration.
15.5. Following termination of the Project, the proceeds of any sale of real estate,
together with the assets of the Association, shall be held by the Association as trustee for Owners
and Mortgagees as their interests may appear. Following termination, Mortgagees holding
Mortgages on the Units which were recorded before termination may enforce those liens in the
same manner as any lien holder.
16. EMINENT DOMAIN.
16.1. Whenever any proceeding is instituted that could result in the temporary or
permanent taking, injury or destruction of all or part of the Common Areas and Facilities or one
(1) or more Units, Garage Building, or portion thereof, by the exercise of the power of or power
in the nature of eminent domain or by an action or deed in lieu of condemnation, the Board and
27
each Owner shall be entitled to notice thereof and the Board shall. and the Owners at their
respective expense may, participate in the proceedings incident thereto.
16.2. With respect to the Common or Limited Common Areas and Facilities, any
damages or awards shall be determined for such taking, injury or destruction as a whole and not
for each Owner's interest therein. After such determination, each Owner shall be entitled to a
share in the damages in the same proportion as his ownership interest in the Common Areas and
Facilities. This provision does not prohibit a majority of the Owners from authorizing the Board
to use such damages or awards for replacing or restoring the Common Areas and Facilities so taken
on the remaining land or on other acquired land, provided that this Declaration and the Plat are
duly amended.
16.3. With respect to one (1) or more Units or Garage Units, or portions thereof, the
damages or awards for such taking shall be deemed to be proceeds from insurance on account of
damage or destruction pursuant to Section 14 of this Declaration and shall be deposited with the
Board as trustee. Even though the damages or awards may be payable to one (1) or more Owners,
the Owners shall deposit the damages or awards with the Board as trustee. In the event an Owner
refuses to so deposit his award with the Board, then at the option of the Board, either a Special
Common Assessment shall be made against the defaulting Owner and his Unit or Garage Building
in the amount of this award or the amount of such award shall be set off against the sum hereafter
made payable to such Owner.
16.4. If one (11 or more Units are taken, in whole or in part, or one(]) or more Garage
Buildings are taken, in whole or in part, the taking shall have the following effects:
16.4. L If the taking reduces the size of a Unit and the remaining portion of the
Unit may be made tenantable, the Unit shall be made tenantable. If the taking reduces the
size of a Garage Building and the remaining portion of the Garage Building may be made
useable, the Garage Building shall be made useable. If the cost of such work exceeds the
amount of the award, the additional funds required shall be assessed against the Owners
of the Unit or Garage Building. The balance of the award, if any, shall be distributed to
the Mortgagee to the extent of the unpaid balance of its Mortgage and the excess, if any,
shall be distributed to the Owner.
16.4.2. If the taking destroys or so reduces the size of a Unit that it cannot be made
tenantable, or destroys or reduces the size of a Garage Building so that it cannot be made
useable, the award shall be distributed to the Mortgagee of the Unit or Garage Building to
the extent of the unpaid balance of its Mortgage and the excess, if any, shall be distributed
to the Owners thereof. The remaining portion of such Unit, or Garage Building, if any,
shall become a part of the Common Areas and l'aciiities and shall be placed in condition
for use by all Owners in the manner approved by the Board. The ownership interest in
the Common Areas and Facilities appurtenant to the Units and Garage Buildings that
continue as part of the Project shall be equitably adjusted to distribute the ownership of
the Common Areas and Facilities among the reduced number of Owners.
28
16.5. Changes in Units, the Garage Buildings, the Common Areas and Facilities and in
the ownership of the Common Areas and Facilities that are affected by the taking referred to in
this Section 16 shall be evidenced by an Amendment to this Declaration and the Plat, which need
not be approved by the Owners.
17. MORTGAGEE PROTECTION.
17.1. The Association shall maintain and have current copies of the Declaration, Articles,
Bylaws, and other rules concerning the Project as well as its own books, records, and financial
statements available for inspection by Owners or by holders, insurers, and guarantors of First
Mortgages that are secured by Units in the Project. Generally, these documents shall be available
during normal business hours.
17.2. The lien or claim against a Unit for unpaid assessments or charges levied by the
Association pursuant to this Declaration shall be subordinate to the First Mortgage affecting such
Unit if the First Mortgage was recorded before the delinquent assessment was due, and the First
Mortgagee thereunder which comes into possession of or which obtains title to the Unit shall take
the same free of such lien or claim for unpaid assessment or charges, but only to the extent of
assessments or charges which accrue prior to foreclosure of the First Mortgage, exercise of a power
of sale available thereunder, or taking of a deed or assignment in lieu of foreclosure. No
assessment, charge, lien, or claim which is described in the preceding sentence as being
subordinate to a First Mortgage or as not to burden a First Mortgagee which comes into possession
or which obtains title shall be collected or enforced by the Association from or against a First
Mortgagee, a successor in title to a First Mortgagee, or the Unit affected or previously affected by
the First Mortgage concerned. Notwithstanding the foregoing, any lien or claim against a Unit for
unpaid assessments or charges levied by the Association pursuant to this Declaration shall be
subordinate to and shall not defeat any SBL Freddie Mac mortgage recorded against such Unit
(" SBL Mortgage") in good faith and for value.
17.3. In the event any taxes or other charges which may or have become alien on the
Common Areas and Facilities are not timely paid, or in the event the required hazard insurance
described in 13.1.1 lapses, is not maintained, or the premiums therefore are not paid when due,
any Mortgagee or any combination of Mortgagees may jointly or singly, pay such taxes or
premiums or secure such insurance. Any Mortgagee which expends funds for any of such purposes
shall be entitled to immediate reimbursement therefor from the Association.
17.4. No provision of this Declaration or the Articles gives or may give an Owner or any
other party priority over any rights of Mortgagees pursuant to their respective Mortgages in the
case of a distribution to Owners of insurance proceeds or condemnation awards for loss to or taking
of all or any part of the Units or the Common Areas and Facilities.
-�LIV
18.1. Subject to Subsection 18.3, and except as provided elsewhere in this Declaration,
this Declaration may be amended by affirmative vote or written consent, obtained by written ballot
or otherwise, or any combination thereof, of at least sixty-seven percent (67%) of the Total Votes
9
of the Association. Notwithstanding the foregoing, the percentage of votes Accessary to amend a
specific clause shall not be less than the prescribed percentage of affirmative votes required for
action to be taken under that clause. Any amendment authorized pursuant to this Section shall be
accomplished through the recordation of an instrument executed by the Association in the office
of the County Recorder for the county in which the Project is located. In such instrument an officer
or a member of the Board of the Association shall certify that the vote required by this Section for
amendment has occurred.
18.2. Subject to Subsection 18.3 Declarant has the right to unilaterally amend. modify,
extend or revoke this Declaration for any purpose during the Declarant Control Period, so long as
a copy of the written amendment is provided to all other Owners. Thereafter, Declarant may
unilaterally amend this Declaration if such amendment is necessary: (1) to bring any provision into
compliance with any applicable governmental statute, rule, regulation or judicial determination;
(2) to enable any reputable title insurance company to issue title insurance coverage on any Lot or
Unit-, (3) to enable any institutional or governmental lender, purchaser, insurer, or guarantor of
mortgage loans to make, purchase, insure, or guarantee mortgage loans on any Lot or Unit; or (4)
to satisfy the requirements of any local, state or federal governmental agency. However, any such
amendment occurring after the Declarant Control Period shall not adversely affect the title to any
Lot or Unit unless the Owner of such Lot or Unit shall consent in writing. Declarant's right to
amend shall be construed liberally and shall include, without limitation. the right to amend and/or
restate this Declaration in part or in its entirety.
18.3. Notwithstanding anything to the contrary herein, this Declaration may not be
amended without obtaining the prior written approval of the City of Meridian, the official signature
of which shall appear upon the amendment as a condition to the recording thereof in Ada County.
19. ASSESSMENT OF UNITS AND GARAGE UNITS BY THE ASSOCIATION.
19.1. The making and collection of Common Assessments by the Association from
Owners of Units for their share of Common Expenses shall be pursuant to the Bylaws, Idaho Code
§§ 45-810, 55-115, as the same may be amended, other applicable statutes or ordinances, and
subject to the following provisions:
19,1.1. Declarant, for each Unit owned by Declarant (which is not an Exempt Unit
or a Garage Unit), and each Unit Owner, other than Declarant, by becoming an Owner of
a Unit that is not an Exempt Unit, is deemed to covenant and agree to pay Assessments to
the Association in accordance with this Declaration. The Common Expenses of the
Association in the following manner:
19.1.1.1. Each Unit in the Project (except for Exempt Units and Garage
i'nits) shall be liable for one Common Assessment Share.
19.1.1.2. An Owner of Commercial Space shall be assessed one Common
Assessment Share for each fraction of 1,000 square feet owned (ie. if a Commercial
Space is 750 square feet, the Owner shall be assessed one Common Assessment
ME
Share; if a Commercial Space is 2,500 square feet, the Owner shall be assessed 3
Common Assessment Shares).
19.1.2. The Garage Owner is deemed to covenant and agree to pay Garage
Assessments to the Association in accordance with this Declaration. Each Garage 1 Tnit
shall be liable for its share of the Garage Assessments, which shall be based on the costs
and expenses of maintaining, repairing and replacing the exterior and rooftops of the
Garage Buildings, the proportionate share of the costs and expenses of maintainin"'.
repairing and replacing the driveways attributable to the Garage Buildings, and the Garage
Buildings' proportionate share of insurance; provided, however, the Garage Assessment
shall in no case be more than one -twelfth (1/12) of the Regular Common Assessment (ie.,
the total amount of the Garage Assessments for 12 Garage Units shall not exceed one
Common Assessment Share).
19.1.3. Two separate and distinct funds shall be created and maintained hereunder,
one for operating expenses and one for capital reserve expenses. Such combined expenses
shall constitute the Common/ Garage Expenses, and the funds received from Common
Assessments and the Garage Assessments under this Section 19 shall be the Common
Expense/ Garage Expense Account. Common/ Garage Assessments shall include both
Regular Common Assessments, Special Common Assessments and Garage Assessments.
Regular Common Assessments must be made at least annually, based on a budget adopted
at least annually by the Association in accordance with the provisions of this Declaration
and the Bylaws. Regular Common Assessments shall be levied against each separate Unit
annually. Garage Assessments must be made at least annually, based on a budget adopted
at least annually by the Association in accordance with the provisions of this Declaration
and the Bylaws. Garage Assessments shall be levied against each Garage Unit annually.
19.1.4. The Association may not impose a Regular Common Assessment per Unit
which is more than 20% greater thann the previous year's Regular Common Assessment,
without first obtaining the vote of Owners, constituting a quorum, as provided in the
Bylaws, casting a majority of the Total Votes of the Association at a meeting of the
Association. Such percentage increase shall be calculated without regard to any increase
attributable to an increase in real estate taxes against the Units. The Association shall
provide notice, by first class mail to all Owners, of any increase in the Regular Common
Assessments not less than fifteen (15), nor more than sixty (60), days prior to the date the
increased Regular Common Assessment is due. The Association may not impose a
Garage Assessment which is more dean 20% greater than the previous year's Garage
Assessment, without first obtaining the vote of Owners, constituting a quorum. as
provided in the Bylaws, casting a majority of the Total Votes of the Association at a
meeting of the Association. Any increase in the Garage Assessment of more than 20%
must be supported by a garage reserve analysis under Section 19.2. The Association shall
provide notice, by first class mail to all Owners, of any increase in the Garage Assessments
not less than fifteen (15), nor more than sixty (60), days prior to the date the increased
Garage Assessment is due.
31
19.1.5. In addition to the Regular Common Assessments, the Association may levy
in any calendar year, Special Common Assessments applicable to that year only.
However, in any fiscal year, except as otherwise provided in this Declaration, the Board
shall not, without the vote or written assent of Owners, casting a simple majority of the
Total Votes of the Association at a meeting or by written ballot, levy Special Common
Assessments which in the aggregate exceed 10% of the budgeted gross expenses of the
Association for that fiscal year. All Units within the Project, except Exempt Units, and
except Garage Lots, shall pay a portion of any Special Common Assessment equal to that
Unit's Common Assessment Share, as provided for in Section 19.1.1. The Garage
Owner(s) within the Project shall pay a share of any Special Common Assessment equal
to the Garage Owner's share of the Garage Expenses. These provisions with respect to
the imposition or allocation of Special Common Assessments shall not apply when the
Special Assessment is to pay an increase in real property taxes. The Board shall provide
notice by first class mail and/or electronic message to all Owners of any Special Common
Assessments not less than fifteen (1 S) nor more than sixty (60) days prior to the date such
Assessment is due. Special Common Assessments shall be paid as determined by the
Board and the Board may permit Special Common Assessments to be paid in installments
extending beyond the fiscal year in which the Special Common Assessment is imposed.
19.1.6. The Association may also levy a Specific Assessment against an Owner or
an Owner's Unit, including Units, if any, which are Commercial Spaces and including
Garage Buildings: (1) to reimburse the Association for costs incurred in bringing an
Owner and/or an Owner's Unit or Garage Building and Garage Owner into compliance
with the provisions of this Declaration, the Bylaws, rules and regulations of the
Association or any other governing instrument of the Project; (2) to cover costs incurred
as a consequence of the conduct of the Owner or occupants of the Unit, or the Owner or
users of the Garage Building, their agents, contractors, employees, licensees, invitees, or
guests; provided, the Board shall give the Owner prior written notice and an opportunity
for a hearing, in accordance with the Bylaws, before levying a Specific Assessment I'm.
this purpose; (3) to pay the costs of repairs or maintenance to any Limited Common Areas
and Facilities benefitting such Owner's Unit; or (4) to pay the costs, including overhead
and administrative costs, of providing services to the Owner or the Owner's Unit in
accordance with this Declaration or pursuant to any menu of special services which may
be offered by the Association or the HOA Manager. Specific Assessments for special
services may be Ievied in advance of the provision of the requested service.
19.1.7. All Assessments shall be due as determined pursuant to this Declaration
and the Bylaws. All Assessments shall be paid in equal monthly installments, unless
adjusted to reflect an amendment to the budget or as otherwise authorized hereunder.
Assessments and any installments thereof not paid on or before ten (10) days after the date
when due shall be delinquent and shall bear interest at the rate of eighteen percent (18%)
per annum, or at such lower rate of interest as may be set by the Board, from the date
when due until paid. In addition, Owners who do not pay their Assessments when due
shall be subject to a late fee of up to One Hundred dollars ($100.00) for each Common
Assessment owed, adjustable troy» year to year at the discretion of the Board. All
payments of Assessments shall be first applied to accrued interest and late fees, and then
32
to the Assessment payment first due. All Assessments to pay a judgment against the
Association may be made only against the Units and Garage Units in the Project at the
time the judgment was entered, in proportion to their liabilities for Common/ Garage
Expenses. If any Common/ Garage Expense is caused by the misconduct of any Owner,
the Association may assess that expense etclusivcl\ against such Owner's Unit(s) or
Garage Building.
19.1.8. There shall be a lien upon the applicable Unit and Garage Building for all
unpaid Assessments, together with late fees, interest and costs (including attorneys' fees)
charged pursuant to the Declaration and the Act. The lien for unpaid Assessments and
related charges shall be effective upon recordation in the Office of the County Recorder
of a written notice of lien by the Board or the HOA Manager. The written notice of lien
shall set forth the amount of the Assessment, the date(s) due, the amount remaining
unpaid, the name of the Owner of the Units, Building, Garage Units and Garage Building
and a description of the Units and Building, Garage i Inits and Garage Building. No notice
of lien shall be recorded until there is a delinquency in payment of the Assessment. Such
lien may be enforced by sale or foreclosure conducted in accordance with the provisions
of law applicable to the foreclosure as provided in Title 45 of the Idaho Code, but without
limitation, the method recognized under the laws of the State Ior the enforcement of a
Homeowners Association lien which has been established in accordance with the
provisions of Idaho Code § 45-810 as the same may be amended from time to time. In
any such foreclosure, the Owner shall be required to pay the costs and expenses of such
proceeding (including reasonable attorneys' fees), and such costs and expenses shall be
secured by the lien being foreclosed. The Owner shall also be required to pay to the
Association any Assessments against the Units or the Garage Units which shall become
due during the period of foreclosure, and all such Assessments shall be secured by the lien
being foreclosed. A lien against a Garage Unit shall include the Garage Building upon
which the Garage Unit is constructed, a Garage Unit being incapable of legal separate
ownership. The Board shall have the right and power on behalf of the Association to bid
at any foreclosure sale and to hold, lease, mortgage or convey the subject Units or Garage
Buildings in the name of the Association. In furtherance of such foreclosure rights, the
Association may bring an action at law against the Owner personally obligated to pay the
same or the Association may foreclose the lien in accordance with the provisions of Idaho
law. The lien of the Association shall be superior (prior) to all other liens and
encumbrances except liens and encumbrances recorded before recordation of this
Declaration, a First Mortgage on a Unit, Building or Garage Building as provided for in
Section 17.2 of this Declaration and assessments, liens and charges in favor of the state or
any political subdivision thereof, for taxes and other governmental assessments or charges
past due and unpaid on the Units, Building and Garage Building. The lien procedures
described herein do not prohibit actions to recover sums for which the Act creates a lien
or prohibit the Association from taking a deed in lieu oi' foreclosure. The Board, upon
written request, shall furnish to an Owner a statement setting forth the amount of unpaid
Assessments against the Units or the Garage Units. This statement must be furnished
within ten (10) business days after receipt of the request and is binding on the Association,
the Board, the HOA Manager and every Owner, in favor of all who rely on such statement
in good faith.
33
19.1.9. The amount of any Assessment against any Unit or any Garage Unit shall
be the personal obligation of the Owner of such Units to the Association. Suit to recover
a money judgment for such personal obligation shall be maintainable by the Association
without foreclosing or waiving the lien securing the same. No Owner may avoid or
diminish any such personal obligation by waiver of the use and enjoyment of any of the
Common Areas and Facilities or by abandonment of his Units or Garage Units or by
waiving any services or amenities provided for in this Declaration. In the event of an)
suit to recover a money judgment of unpaid assessments hereunder, the involved Owner
shall pay the costs and expenses incurred by the Association in connection therewith,
including: reasonable attorneys' fees.
19.1.10. The personal obligation of an Owner to pay unpaid Assessments against
his Units or Garage Units as described in Section 19.1.8 shall not pass to successors in
title unless assumed by them; provided, however, that a lien to secure unpaid assessments
shall not be impaired, nullified or otherwise affected by the sale or transfer of the Units
and Building, or Garage Building. unless foreclosure by a First Mortgagee is involved in
which case the foreclosure will extinguish the lien for any assessments that were payable
before the foreclosure sale, but shall not relieve any subsequent Owner from paying
further Assessments.
19.1.11. All Exempt Units shall be exempt from the Assessments (including
Regular Common Assessments and Special Common Assessments). Declarant shall
remain a Class B Member in the Association as provided in Section 22.2 of this
Declaration, notwithstanding its temporary exemption status from the required
Assessment payments. On the date on which a Unit loses its status of being an Exempt
Unit (as set forth in Section 2.18 of this Declaration), then it shall automatically be subject
to its share of Assessments from that date forward.
19.2. The Board shall not expend funds designated as reserves for any purpose other than
the repair, restoration, replacement or maintenance of major components of the Common Areas
and Facilities for which the Association is responsible and for which the reserve fund was
established or for litigation or binding arbitration involving such matters. Nevertheless, the Board
may authorize the temporary transfer of money from the reserve account to the Association's
operating account from time to time to meet short-term cash flow requirements and pay other
expenses. Any such funds so transferred shall constitute a debt of the Association, and shall be
restored and returned to the reserve account within three (3) years of the date of the initial transfer;
provided, however, the Board may, upon malting a documented finding that a delay in the
restoration of such funds to the reserve account would be in the best interests of the Project and
Association, delay such restoration until the time it reasonably determines to be necessary. The
Board shall exercise prudent fiscal management in the timing of restoring any transferred funds to
the reserve account and shall, if necessary, levy a Special Common Assessment to recover the full
amount of the expended funds within the time limit specified above. Any such Special Common
Assessment shall not be subject to the limitations set forth in Section 19.1.5 hereof. At least once
every three (3) years the Board shall cause a study to be conducted of the reserve account of the
Association and its adequacy to satisfy anticipated future expenditure requirements. The Board
shall, thereafter, annually review the reserve account study and shall consider and implement
34
necessary adjustments to reserve account requirements and funding as a result of that review. Any
reserve account study shall include, at a minimum:
19.2.1. Identification of the major components which the Association is obligated
to repair, replace, restore or maintain which, as of the date of the study, have a useful life
of less than 30 years.
19.2.2. Identification of the probable remaining useful life of the components
identified in Section 19.2.1 above. as of the date of the study.
19.2.3. An estimate of the cost of repair. replacement, restoration or maintenance
of each major component identified in Section 19.2.1 above, during and at the end of its
useful life.
19.2.4. An estimate of the total annual contribution necessary to defray the cost to
repair, replace, restore or maintain each major component during and at the end of its
useful life, after subtracting total reserve funds as of the date of the study.
19.3. For the purposes of this Section, the term "reserve account requirements" means
the estimated funds which the Board has determined are required to repair, replace or restore those
major components which the Association is obligated to maintain. The Association shall comply
with the requirements of the Act pertaining to a reserve analysis and reserve fund. If a reserve
analysis shall be performed for the Garage Buildings, such reserve shall solely take into account
the costs and expenses of maintaining, repairing and replacing the exterior and rooftops of the
Garage Buildings, the proportionate share of the costs and expenses of maintaining repairing and
replacing the driveways attributable to the Garage Units, and the Garage Units' proportionate share
of insurance purchased by the Association under Section 13,
19.4. If a Unit Owner shall at any time lease his Unit and shall default in the payment of
Assessments, or if a Garage Owner shall at any time lease its Garage Unit and shall default in the
payment of Assessments, the Board may, at its option, so long as such default shall continue,
demand and receive from any tenant of the Owner the rent due or becoming due, and the payment
of such rent to the Board shall be sufficient payment and discharge of such tenant and the Owner
for such assessments to the extent of the amount so paid.
20. OPTION TO CONVERT.
If Section 10.11 conflicts with the Option to Convert, Section 10.11 shall supersede this
Section and there shall be no future subdivision of any Unit or Building within the Project. The
Plat or Plats for the Project may show that some of the Buildings are jointly owned, with the Units
therein not individually subdivided for tax purposes, and that some of the Buildings are subdivided,
with each i init therein being having a separate tax identification number. If the Owner of any
building in which the Units are not currently shown on the Plat as subdivided into separate tax
identification numbers desires to subdivide such Units, or if the Owner of Units in a Building
where the Units are currently subdivided into separate tax identification numbers desires to
combine those Units into a single tax identification number. such owner must comply with the
;ti
requirements of the City and the county in which the Project is located in order to accomplish such
modification to the Plat.
21. REINVESTMENT FEE COVENANT.
21.1. For each and every conveyance of title to a Lot or Unit, notwithstanding any partial
assessment or partial voting rights, including the original conveyance by Declarant to a purchaser,
and with respect to each and every subsequent conveyance of title to the Building or Unit to a new
Unit Owner, a fee in the amount of Four Hundred Dollars ($400.00) per Unit (the "Reinvestment
Fee") shall be paid by the buyer to the Association. The Board shall have authority. by written
resolution, to modify the amount of the Reinvestment Fee, according to the financial needs of the
Association, so long as the amount is not less than $250.00 per Unit and not more than $600.00
per Unit. The Board may also authorize the Association to pay a portion of the Reinvestment Fee
(no more than 25%) to the HOA Manager of the Association to offset start-up costs for new Unit
Owners and accounts. To the fullest extent practicable, the Reinvestment Fee shall be collected at
the closing of the purchase/sale transaction by the title company, escrow company, or other persons
involved with the transaction, and paid directly to the Association.
21.2. The Association shall have a lien against the Unit of the buyer/new Unit Owner to
secure payment and collection of the Reinvestment Fee. The lien securing payment of the
Reinvestment Fee shall be enforceable in the same manner and in all respects as the lien securing
payment of assessments as provided in the provisions of Section 19 of this Declaration.
21.3. The obligation to pay the Reinvestment Fee shall be a personal and continuing
obligation of the buyer/new Unit Owner, regardless of whether the buyer/new Unit Owner
acquired title to the IInit by regular conveyance, pursuant to a foreclosure sale (judicial or non -
Judicial), by inheritance or probate, or otherwise.
21.4. The Association shall use the funds obtained from payment of all Reinvestment
Fees to fund the Association's reserve account for the repair and/or replacement of the Common
Areas and Facilities of the Project for the benefit of all of the Lots, Buildings, and Units in the
Project.
21.5. As allowed under Idaho Code § 55-3102(4)(f), as the same may be amended, the
provisions of this Section 21 shall not be interpreted as a "transfer fee," as the same is used in
Idaho Code § 55-3103. The provisions of this Section 21 are intended to run with the land of the
Lots and Units, and to be binding upon all successors and assigns, and inure to the benefit of the
Association.
21.6. The provisions of this Section 21 shall not apply to the Garage Owner as the
activities related to the Garage Buildings have minimal impact on the Common Areas and any
such actual and future impacts are accounted for in the Garage Assessment.
36
22. VOTING.
The Association shall have two (2) classes of memberships which shall be entitled to the
following voting rights:
22.1. Class A. Each Owner of a Unit, which is an Assessable Unit, shall be a Class A
Member of the Association. If the Garage Owner is the Declarant, Class A Membership for the
Garage Owner shall commence when the Garage Owner's Class B Membership terminates. If the
Garage Owner is not the Declarant, Class A Membership for the Garage Owner shall commence
immediately and automatically upon becoming the Garage Owner. The number of votes allotted
to each Owner and Garage Owner shall be determined in the following manner:
22.1,1. Each Owner of a Unit shall be allocated one vote.
22.1.2. An Owner of Commercial Space shall be allotted one full vote for each
fraction of 1,000 square feet owned (ie. V a Commercial Space is 750 square feet, the
Owner shall be allotted 1 vote; if the Commercial Space is 2,500 square feet, the Owner
shall be allotted 3 votes).
22.1.3. The Garage Owner is allotted one (1) vote per Garage Lot owned.
22.2. Class B. Declarant shall be the only Class B Member of the Association and shall
be entitled to ten (10) votes for each Unit owned by Declarant within the Project. Declarant shall
be entitled to cast votes for each Unit owned by Declarant even if the Units are temporarily
classified as an Exempt Unit under Section 2.18 of this Declaration. Declarant will continue to be
a Class B Member as long as Declarant owns any Lot or Unit in the Project. After Declarant no
longer owns any Lot or Unit in the Project, Declarant will remain a Class B Member until the later
to occur of (i) ninety (90) days following the date when Declarant transferred the Iast remaining
Lot or Unit owned by Declarant, or (ii) ninety (90) days following the date when all of the Units
within the Project have received a certificate of occupancy from the municipal authority having
jurisdiction over the Project. If, after Declarant's Class B Membership shall terminate, Declarant
owns any Garage Lot in the Project, Declarant shall become a Class A Member with respect to
each Garage Lot owned by Declarant. Notwithstanding the foregoing, Declarant may, at any time,
deliver to the Association written notice that Declarant is withdrawing as a Class B Member of the
Association. If Declarant provides such notice while Declarant owns any Lot or Unit in the Project,
Declarant shall become a Class A Member with respect to each Unit owned by Declarant. If
Declarant provides such notice while Declarant owns any Garage Lot in the Project, Declarant
shall become a Class A Member with respect to each Garage Lot owned by Declarant.
22.3. Voting Rights. Where a Unit or Garage Lot is owned by more than one Owner, the
one (1) vote for such Unit or Garage Lot shall be exercised as they, among themselves, determine.
The vote of any one of them shall be conclusively presumed to have been exercised as a result of
an agreement among such Owners and in the event multiple Owners attempt to exercise a vote for
such Unit(s) or Garage Lot(s) on any question or issue, the Owners of such Unit(s) or Garage
Lot(s) will forfeit the right to vote on that question or issue. In no event shall more than one (1)
vote be cast with respect to any Unit or Garage Lot. With respect to any question or issue requiring
37
a vote of the Association, vote of the Owners, or vote of the Members of the Association, the total
number of votes cast shall not exceed the number of Unit(s) plus Garage Lot(s) in the Project.
Unless otherwise required by this Declaration or the Bylaws, the number of affirmative votes
required for approval of any matter submitted to vote of the Members shall be a simple majority
of the votes cast with respect to such matter. All voting rights shall be subject to the restrictions
and limitations provided herein and in the Bylaws.
22.4. Declarant Approval. Notwithstanding any provision to the contrary in this
Declaration, Class A Members shall have no voting rights in the Association so long as Declarant
is a Class B Member of the Association unless governing law (State or Federal) requires that Class
A Members be allowed to vote on the topic or matter at issue, in x� I}ich event the voting rights
shall be as stated above (1 vote for each Unit owned by a Class A Member, and 10 votes for each
Unit owned by Declarant). Subject to the preceding sentence, during the period of time in which
Declarant is a Class B Member, all matters requiring a vote of the Members or otherwise submitted
to a vote of the Members shall be determined solely by the Class B votes (i.e., solely by the
Declarant) with or without a meeting and with or without a vote of the Members. When Declarant
is no longer a Class B Member of the Association, then (i) the Class B membership shall cease
being a class of membership; (ii) there shall no longer be any Class B votes of the Association:
and (iii) Class A votes shall become activated and shall be allowed to vote on all matters of the
Association requiring votes of Members.
23. EASEMENTS.
23.1. If any part of the Common Areas and Facilities encroaches or shall hereafter
encroach upon a Lot, Unit or Garage Lot, an easement for such encroachment and for the
maintenance of the same shall and does exist. If any part of a Unit or Garage Lot encroaches or
shall hereafter encroach upon the Common Areas and Facilities, or upon an adjoining Lot, Unit or
Garage Lot, an easement for such encroachment and for the maintenance of the same shall and
does exist. Such easements shall extend for whatever period the encroachment exists. Such
encroachments shall not be considered to be encumbrances either on the Common Areas and
Facilities, the Units or Garage Lots. Encroachments referred to herein include, but are not limited
to, encroachments caused by error in the original construction of any Improvement constructed or
to be constructed within the Project, by error in the Plat, by settling, rising or shifting of the earth,
or by changes in position caused by repair or reconstruction of the Project or any part thereof.
23.2. If any utility line of any kind is constructed such that it crosses through, over, or
under one (1) or more Units or Garage Buildings in order to provide service to another Unit or
Garage Building, or if, after construction, it becomes necessary to install a utility line through,
over or under one or more Units or Garage Buildings in order to provide service to another Unit
or Garage Building, a perpetual easement for such utility line(s) is hereby granted for the
installation, maintenance, repair (or replacement) and operation of all such utility line(s).
23.3. Each Owner shall have the unrestricted right to ingress and egress over, upon and
across the Common Areas and Facilities as necessary for access to the Unit or Garage Unit he or
she is occupying or using, and to any Limited Common Areas and Facilities appurtenant to his or
her Unit, and shall have the right to the horizontal, vertical and lateral support of his or her Unit or
38
Garage Building and such rights shall be perpetual and shall be appurtenant to and pass with title
to each Unit or Garage Building.
23.4. The Association shall have an easement, including, without limitation, an easement
through, over and across the Lots, the Units, the Garage Lots and the Garage Buildings to make
such use of the Common Areas and Facilities and Limited Common Areas and Facilities as may
be necessary or convenient to perform the duties and functions that each is obligated or permitted
to perform pursuant to this Declaration, including, without limitation, the right to construct and
maintain the Common Areas and Facilities and Limited Common Areas and Facilities for use by
the Owners and the Association.
23.5. All conveyances of Units or Garage Buildings within the Project shall be construed
to grant and reserve such easements as are provided Herein, even though no specific reference to
such easements appears in any such conveyance.
24. NOTIC"ES.
Any notice permitted or required to be delivered as provided herein may be delivered either
personally, by first class mail, by express mail or overnight courier service providing proof of
delivery, or by telecopy, facsimile or electronic transmission. Notice to Owners shall be addressed
to each Owner at the address or electronic mail address, as applicable, given by such Owners to
the Board for the purpose of service of such notice or to the Unit of such Owner if no such address
has been given to the Board. Notice shall be deemed given when actually received if personally
delivered or sent by overnight courier; if faxed, when the fax is received, except that if the fax is
received at a time other than the normal business hours of the office at which it is received, on the
next regular business day; and if by mail, the earlier of the day actually received or the third
business day after the notice is deposited in the United States Mail, properly addressed and postage
prepaid; or upon transmission of electronic mail. Such address and electronic mail address may
be changed from time to time by notice in writing to the Board.
25. NO WAIVER.
The lLiilure of the Board or its agents or designees to insist, in one (1) or more instances,
upon the strict performance of any of the terms, covenants, conditions or restrictions of this
Declaration or the Bylaws, to exercise any right or option herein contained or to serve any notice
or institute any action, shall not be construed as a waiver or a relinquishment for the future of such
terrn. covenant. condition or restriction; but such tenii. covenant, condition or restriction shall
remain in full force and effect. The receipt and acceptance by the Board or its agents or designees
of the payment of any assessment from an Owner with knowledge of the breach of any covenant
hereof shall not be deemed a waiver of such breach, and no waiver by the Board of any provision
hereof shall be deemed to have been made unless expressed in writing and signed by the Board.
26. ENFORCEMENT.
26.1. All Owners. guests or lessees of an Owner, and persons under Owner's control,
shall strictly comply with the provisions of the Declaration. the Bylaws, and the rules and
regulations and decisions issued pursuant thereto. The Association and any aggrieved Owner shall
39
have a right of action against Owners who fail to comply with provisions of the Declaration or the
decisions of the Association. Owners shall have a similar right or action against the Association.
Failure to so comply shall be grounds for: (i) an action to recover sums due for damages or
injunctive relief or both, maintainable by the Board, or its agent or designee on behalf of the
Owners, or in an appropriate case, by an aggrieved Owner: and/or (ii) the Board to impose
monetary penalties, temporary suspensions of an Owner's right to the use of the Common Areas
and Facilities, or other appropriate discipline so long as any such Owner has been given notice and
has had an opportunity to present a written or oral defense to the charges in a hearing. The Board
shall determine whether the Owner's defense shall be oral or written. After the hearing, but before
any disciplinary action is taken, the Owner shall be notified of the decision of the Board. The
Board may delegate to the HOA Manager the power and authority to carry out disciplinary actions
duly imposed.
26.2. The Board may adopt and enforce reasonable rules and regulations that are not
inconsistent with the provisions of this Declaration. The Board may also adopt and enforce
reasonable fine schedules and may impose and collect fines from Owners who violate the
provisions of this Declaration. As set forth in Idaho Code § 55-11 S, no fine may be imposed until
a majority of the Board approves the fine and the Owner in violation of the Declaration is given
thirty (30) days written notice, by personal service or certified mail, of the meeting where the vote
will take place. All costs and expenses incurred by the Board in enforcing the Riles and regulations,
and enforcing or collecting fines, shall be paid by the offending Owner and shall be secured by a
lien against the Unit owned by the offending Owner. Said lien shall be enforced in the same
manner as the lien securing payment of assessments, as provided in this Declaration.
26.3. The Association shall not be empowered to cause the absolute forfeiture of an
Owner's right, title or interest in the Project on account of the Owner's failure to comply with the
provisions of the Declaration or the rules and regulations for the Project except pursuant to:
26.3.1. The judgment of a court; or
26.3.2. A foreclosure for the failure of an Owner to pay assessments or fines duly
levied by the Association.
27. AGENT FOR SERVICE OF PROCESS.
The name and address of the person to receive service of process shall be the registered
agent and address of the Association as shown on the official corporate records maintained in the
office of the Division of Corporations and Commercial Code of the State.
28. DISPUTE RESOLUTION; MANDATORY BINDING ARBITRATION.
28.1. Statement of Intent. Prior to purchasing a Lot or Garage Lot, every Owner is
capable of obtaining an inspection and is permitted to perform, or pay someone else to perform,
an inspection on any Lot or Garage Lot that Owner is purchasing or any other aspect of the Project,
including, without limitation, the Common Areas. Moreover, if any written warranty has been
provided, it identifies the only items that are warranted by the Declarant. Having had the ability to
inspect prior to purchasing a Lot or Garage Lot, having received a written warranty if any warranty
40
is provided, and having paid market price for a Lot or Garage Lot in the condition it and the Lots,
the Garage Lots, and Common Area are in at the time of purchase, it is acknowledged that it is
unfair and improper to later seek to have the Declarant and/or any subcontractor performing work
in the Project to change, upgrade, or add additional work to the Project outside of any express
warranty obligation. Moreover, the Owners (by purchasing a Lot or Garage Lot) and the Declarant
acknowledge and agree that litigation is an undesirable method of resolving disputes and conflicts
in that it can be slow, expensive, uncertain, and can often negatively impact the sale value and
ability to obtain financing for the purchase of Lots and Garage Lots for years, unfairly prejudicing
those Owners who must or want to sell their Lot or Garage Lot during any period when litigation
is pending. For this reason, the Owners, by purchasing a Lot or Garage Lot, and the Declarant
covenant and agree that claims and disputes shall not be pursued through court action, but shal I be
asserted and resolved only through the specific alternative dispute resolution mechanisms
described below, and only after full disclosure, satisfaction of the right to cure periods, and
knowing approval of the Owners, as set forth in the provisions of this Section 28. In addition, the
Association and the Owners agree that they take ownership and possession of the Lots, Garage
Lots and Common Areas AS IS, with no warranties of any kind except as otherwise required as a
matter of law. The Declarant specifically disclaims any and all warranties of merchantability,
fitness for a particular use, or of habitability, to the full extent allowed by law.
28.2. Binding Arbitration for All Disputes. To the fullest extent permitted by law, all
claims and disputes of any kind that any Owner or the Association may have involving the
Declarant, or any agent, employee, executing officer, manager, affiliate or owner of the Declarant,
or any engineer or contractor involved in the design or construction of the Project, which arise
from or are in any way related to a Building, Unit, or other Improvement on a Lot, Garage Building,
Garage Unit or other improvement on a Garage Lot, Common Areas, Limited Common Areas or
any other Improvement on or component of the Project (a "Dispute"), shall be submitted to final
and binding arbitration. Binding arbitration shall be the sole remedy for resolving claims and
disputes between or involving the Declarant and any Owner or between or involving the Declarant
and the Association. Arbitration proceedings, however, shall not be commenced unless the Pre -
Arbitration Requirements set forth in Section 28.3 below have been satisfied in full. Without in
any way limiting the foregoing, Disputes subject to binding arbitration shall include the following:
28.2.1. Any allegation that a condition in any of the Buildings or i hits on the
Lots. the Garage Units, the Garage Buildings, the Common Areas, the Limited Common
Areas, or other Improvements in the Project is or involves a construction defect.
28.2.2. Any disagreement as to whether an alleged construction defect has been
corrected;
28.2.3. Any disagreement about whether any warranties, including implied
warranties, are applicable to the subject matter of any Dispute,
28.2.4. Any disagreement as to the enforceability of any warranties alleged to be
applicable to the subject matter of any Dispute;
41
28.2.5. Any disagreement about whether any warranty alleged to be applicable to
the subject matter of any Dispute has been breached;
28.2.6. Any alleged violations of consumer protection, unfair trade practice, or
other statutes or laws;
28.2.7. Any allegation of negligence, strict liability, fraud, and/or breach of duty
of good faith, and all other claims arising its equity or from common law;
28.2.8. Any allegation that any condition existing in the Project or created by the
Declarant (or any of its contractors), including construction -related noise, dust, and traffic,
is a nuisance, a defect, or a breach of any implied warranties of habitability or other
implied warranties,
28.2.9. Any disagreement concerning the scope of issues or claims that should be
submitted to binding arbitration;
28.2.10. Any disagreement concerning the timeliness of performance of any act
to be performed by Declarant or any of its contractors;
28.2.11. Any disagreement as to the payment or reimbursement of any fees
associated with binding arbitration;
28.2.12. Any disagreement or dispute regarding management of the Association,
or regarding reserve studies or funding of Association expenses; and
28.2.13. Any other claim or disagreement arising out of or relating to the sale,
design, or construction of any of Improvement on the Lots, Garage Lots, Common Areas,
Limited Common Areas, off -site improvements, management of the Association, or other
claims regarding the Project.
28.3. Pre -Arbitration Requirements. An Owner or the Association may only pursue a
claim against the Declarant in arbitration after all of the following efforts of dispute resolution
have been completed: (1) Right to Cure: the claimant (e.g. the Owner or the Association) shall
provide to the Declarant a written Notice of Claim (defined below) and permit the Declarant one
hundred eighty (180) days to cure or resolve the claim or defect or to try to get the builder or the
appropriate subcontractor to cure or resolve the claim or defect, prior to initiating any formal
arbitration proceedings; (2) if the dispute is not resolved within the 180-day Right to Cure period,
the parties shall participate in formal mediation with a mutually -acceptable third -party mediator
in an effort to resolve the Dispute prior to taking further action or commencing arbitration. If
additional, different, or modified claims, damages, calculations, supporting information, or
descriptions are added, provided to, or asserted against the Ieclarant that were not included in any
previously submitted Notice of Claim, the Right to Cure period provided for in this Section shall
immediately apply again and any pending action or proceedings, including any mediation or
arbitration, shall be stayed during the 180-day period.
42
28.3.1. "Notice of Claim" shall mean and include the following information: (1)
an explanation o f the nature of the claim, (2) a specific breakdown and calculation of any
alleged damages, (3) a specific description of the claim along with any supporting
opinions, information, or factual evidence upon which the claim is based, (4) photographs
of any alleged defective condition, if applicable, (5) samples of any alleged defective
conditions or materials, if reasonably available, (6) an explanation of the efforts taken to
avoid, mitigate, or minimize the claim or any alleged damages arising therefrom, and (7)
the names, phone numbers, and address of each person providing factual information,
Iegal or factual analysis, or legal or factual opinions related to the claim.
28.4. Member Approval; Legal Opinion; Arbitration. If a claim or dispute has not been
resolved after satisfying and complying with the above -described "Pre -Arbitration Requirements,"
then the claimant (Owner or Association) shall have the right to proceed with binding arbitration;
however, the Association shall not pursue or commence binding arbitration unless such action is
first approved by a majority of the total votes of the Association after the Association has obtained
a written opinion from legal counsel advising the Association of the likelihood of success on the
merits of the claims, the anticipated costs and legal fees, the anticipated expert witness fees, and
the likelihood of recovery if the Association prevails. The written opinion from legal counsel,
addressing these topics, must be provided to all Owners before the formal vote on whether to
proceed with binding arbitration. The binding arbitration shall be conducted by a mutually -
acceptable arbitrator (preferably a former judge), or, if an arbitrator cannot be mutually selected,
then by a member of the National Panel of Construction ADR Specialists promulgated by
Construction Dispute Resolution Services, LLC ("CDRS"). The binding arbitration shall be
conducted according to the rules and procedures set forth in the Arbitration Rules and Procedures
promulgated by CDRS. The award of the arbitrator shall be final and may be entered as a j udgment
by any court of competent jurisdiction.
28.5. Fees and Costs of Arbitration. Each party shall bear its own attorney fees and costs
(including expert witness costs) for the arbitration. The arbitration filing fee and other arbitration
fees shall be divided and paid equally as between the parties. The arbitrator shall not award
attorney fees, expert witness fees or arbitration costs to the prevailing party.
28.6. No Waiver of Arbitration Right. If any Owner, the Association, or the Declarant
files a proceeding in any court to resolve any Dispute, such action shall not constitute a waiver of
the right of such party, or a bar to the right of any other party, to seek arbitration or to insist on
compliance with the requirements set forth in this Section 28. If any such court action is filed,
then the court in such action shall, upon motion of any party to the proceeding, stay the proceeding
before it and direct that such Dispute be arbitrated in accordance with the terms set forth herein,
including, without limitation, compliance with the Pre -Arbitration Requirements set forth above.
28.7. Waiver of Subrogation. The Association and each Owner waives any and all rights
to subrogation against the Declarant and any builder, contractor, and engineer in the Project. Tliis
waiver shall be broadly construed and applied to waive, among other things, any attempt by any
insurer of any Owner or of the Association from pursuing or exercising any subrogation rights,
whether arising by contract, common law, or otherwise, against the Declarant, the Project engineer,
and builder, contractors of the Declarant and the builder, and their officers, employees, owners,
43
and representatives. To the full extent permitted by Iaw, the Association and Owners hereby release
Declarant, the Project engineer, and builder, and their respective officers, employees, owners,
contractors, insurers, and representatives from any and all liability to the Association and all
Owners, and anyone claiming through or under them by way of subrogation or otherwise, for any
loss, injury, or damage to property, caused by fire or any other casualty or event, even if such fire
or other casualty shall have been caused by the fault or negligence of Declarant or builder, their
officers, employees, owners. and representatives. The Association and each Owner agrees that all
policies of insurance shall contain a clause or endorsement to the effect that this release and waiver
of subrogation shall not adversely affect or impair such policies or prejudice the right of the
Association or any Owner to recover thereunder. The Association and all Owners shall indemnify
and defend the Declarant, the builder, and any of their officers, employees, owners, contractors, or
representatives from any claims barred or released by this provision, including but not limited to
any claim brought under any right of subrogation.
29. RIGHTS RESERVED FOR DECLARANT. During the Declarant C mitrol Period, the
Declarant shall have the right to use any Lot, Unit, Garage Lot or Garage Building owned by it,
and any part of the Common Areas in furtherance of any activities designed to accomplish or
facilitate construction, improvement and sale of all Lots or Units owned by the Declarant or to be
added to the Project, and the construction and improvement of all Common Areas and/or Limited
Common Areas as the Declarant may desire. The Declarant shall have the right to maintain one
(1) or more sales offices and model Units. Such offices and model Units may be located in any
Unit with the permission of the Owner of that Unit, who may be the Declarant, or in one (1) or
more separate structures, trailers, or facilities placed in the Project for the purpose of aiding the
Dcclarant's sales efforts, or any combination of the foregoing. The Declarant shall also have the
right to maintain any number and size of promotional, advertising, or directional signs, banners,
or similar structures or devices at any place or places in the Project. The Declarant shall also have
the right to designate by signs or otherwise any street or other parking as parking for sales only or
to otherwise restrict and use any Common Area parking. The Declarant shall have the right from
time to time to relocate, move, remove, or add to any of its sales offices, parking restrictions, model
Units, signs, banners or similar structures or devices. The Declarant shall have no duty whatsoever
to obtain a Reserve Analysis or to fund any Reserve Fund during the Declarant Control Period.
30. SEVERABILITY. The provisions of this Declaration shall be deemed independent and
severable, and the invalidity or partial invalidity or unenforecability of any one provision or portion
hereof shall not affect the validity or enforceability of any other provision hereof.
;1. LAW CONTROLLING. This Declaration shall be construed and controlled by and under
the laws of the State of Idaho.
This Declaration shall take effect when recorded. In this Declaration, the singular shall
include the plural and the masculine shall include the feminine and vice versa, if the context so
requires.
(Signature Page Follows)
WHEREFORE the Declarant has executed this Declaration on the date first set forth above.
DECLARANT:
By: -+ _
Printed Name: t lAn
Title: 1ejArAW+
STATE of %A`txVj
COUNTY OF UJM
The foregoing instrument was acknowledged before me this 1 day of
20101, by friar Sr-nN ne 1) as De c\ oL r o r%+ of
NIOTARY PUBLIC
SEAL:
KAREN WEEKS
v` NOTARYPUBLIC - STATE OF UTAH
Y My Commission Expires August 1, 2019
,96 COMMISSION NUMBER 664011
4f
EXHIBIT A
BEG1NN NG at the Southwest corner of the 5E'/4 of Sectlea 10. Township 3 North, Mtge 1 West of the poise
Meridian, in Ada County, Idaho, the POINT OF BEGINNING;
Thence Easterly along the section line South 89'47' East 300.00 feet to a point;
Thenca Nertli 00003' West a distance of 290.00 feet;
Thence South 89047' Eas-t a distance of 200.00 feet
hence South 00°03' East a distance of 290.00 feet to a point on the Southerly section line;
T hence Easterly along the section line South 89047' East a distance of 432.03 fort to a point being South 00*03' Wast 7.5
feet from the intersection with the center line of the Kennedy Lateral;
Thence North 00*03' East 25 feet to a point an the centerline of said Kennedy Lateral;
Thence along the centaritne of the Kennedy Lateral the following hearings and distances:
North 42"10' West 300 feat;
Thence North 41'22' West 300%et;
Thence North 39'13' -West 490 feet;
Thenca North 32153' West 690 feat;
Thence North 43029' West 99.57 feet;
T[let��r�e Eeaving said Lateral South QO°03' West 1499A0 feat to a point on the 5outfierly section line of said Section 10.
Thence 5buth 891147' East 221.95 feat, to the PLACE OF BEGRVING.
�? dpT tint portion conveyed to the United States of America by deed recorded in Book 82 of Deeds at Page 90 as
Instrumo-,` ; ), 27390,
EXCEPTING THMEFROM:
Beginring at the Southvicst co:nor of L`te Soulhonst quarter of Saction 10, Township 3 North, Rango 1 West oftho Boise
Meridian, Ada County, Idaho, •
Thence Easterly along thr sectirm line South 89147' East 300.00 feet to tlae REAL POINT OF BF-ODINVO;
Thence North 00003' Wast wdistmoc of 290.00 feat;
Thence South 89'47' East a distance of 200.00 fec!;
Thence South 00'03' East a distance of290,00 feetto a point on the Soutlt section line;
Thence North 89047' West along said section line 200 feet to the REAL POINT OF BEG11,14ING.
AND
BEGINNING at the Southwest corner of the S E % of Section 10, Township 3 North, Range I West of the
Boise Meridian, Ada County, Idaho;
Thence Easterly along the section line South 89147' East 300.00 feet to the REAL POINT OF
BEGINNING;
Thence North 00'03' West a distance of 290.00 feet;
Thence South 89*47' ]vast a distance of 200.00 feet;
Thence South 00'03' East a distance of 290.00 feet to a point on the South section line;
Thence i•5nrth 89*47' West along said section line 200 feet to the REAL POINT 4E BEGINNING.
3
Association Bylaws
BYLAWS
OF
ENTRATA FARMS HOMEOWNERS' ASSOCIATION
ARTICLE I
NAME AND LOCATION. The name of the corporation is Entrata Farms Homeowners'
Association ("Association"). The principal office of the Association shall be located at 295 West
Center St. Provo, UT 84601 (or at such other location as the Board hereafter may designate), but
meetings of Owners and Board Members may be held at such places within the State of Idaho as may
be designated by the Board.
ARTICLE II
DEFINITIONS
Section 1. "Articles of Incorporation" means and refers to the Articles of Incorporation
of Entrata Farms Homeowners 'Association which have been or will be filed with the Idaho Secretary
of State.
Section 2. "Association" means and refers to Entrata Farms Homeowners' Association, a
Idaho non-profit corporation, and its successors and assigns,
Section 3. Reserved.
Section 4. "Board" means and refers to the Board. of Directors of the Association, with all
powers as stated in the Declaration, the Articles of Incorporation of the Association, and these Bylaws.
Section 5. "Bylaws" means and refers to these Bylaws of Entrata Farms Homeowners'
Association.
Section f. "Declaration- means and refers to the Declaration of Covenaws, Conditions,
and Restrictions for Entrata Farms Homeowners'Association. which has been or will be recorded in
the Ada County Recorder's Office, as the Declaration may be amended in accordance with its terms
and provisions.
Section 7. "Directors means and refers to those individuals who are members of the
Board. The singular Director shall refer to the singular of the Directors.
Section S. "Nonprofit Act'' means and refers to the Idaho Nonprofit Act, Idaho Code
30-30-101, et seq., as amended.
Section 8. "Owner" means and refers to any person or entity owning a Unit or Garage Lot
�i°ithin the Project, as such ownership is evidenced by the official records of the Ada County
Recorder's office. The term "Owner" shall include Unit Owner(s) and Garage Owner(s) but shall not
include a Mortgagee unless such Mortgagee acquires ownership other than for security purposes.
Section 9. All other capitalized terms used herein shall have the same meaning as stated
elsewhere in these Bylaws or in the Declaration.
ARTICLE III
MEMBERSHIP IN ASSOCIATION; MEETING OF OWNERS; VOTING
Section 1. Membership in Association. Every Owner and the Declarant shall be members of
the Association. Membership shall be appurtenant to, and may not be separated from, ownership of
any Unit or Garage Lot. Each membership shall be appurtenant to the Unit or Garage Lot to which it
relates and shall be transferred automatically by conveyance of that Unit or Garage Lot. Ownership
of a Unit or Garage Lot within the Project cannot be separated from the Association membership
appurtenant thereto, and any devise, encumbrance, conveyance or other disposition of a Unit or
Garage Lot shall constitute a devise, encumbrance, conveyance or other disposition. respectively, of
such Owner's membership in the Association and the rights appurtenant thereto. Membership in the
Association may not be transferred except in connection with a transfer of ownership of a Unit or
Garage Lot. As set forth below, there shall be two (2) classes of members. The number of Members
in the Association may increase if the Project is expanded as allowed in the Declaration.
A. Class A. Each Owner of a Unit, which is an Assessable Unit, shall be a Class A
Member of the Association. [ f the Garage Owner is the Declarant, Class A Membership for the Garage
Owner shall commence when its Class B Membership terminates. If the Garage Owner is not the
Declarant, Class A Membership for the Garage Owner shall commence immediately and
automatically upon becoming the Garage Owner. Each Class A Membership shall be held jointly
by all Owners of such Unit or Garage Lot. The number of votes allotted to each Owner and Garage
Owner shall be determined n the following manner:
1. An Owner of a one (1 ) bedroom Unit shall be allotted one-half of a vote.
2. An Owner of a two (2) bedroom Unit shall be allotted three-quarters of a
vote.
3. An Owner of a three (3) or more bedroom Unit shall be allotted one full vote.
4. An Owner of Commercial Space comprised of less than 1,000 square feet
shall be allotted one-half of a vote.
2
5. An Owner of Commercial Space comprised of more than 1,000 square feet
shall be allotted one full vote for each 1,000 square feet owned. There shall be no
fractional votes for Commercial Spaces over 1,000 square feet (ie., if a Commercial
Space is 2,500 square feet, the Owner shall be allotted 2 votes).
6. The Garage Owner is allotted one (1) vote per Garage Lot owned.
B. Class B. Declarant shall be the only Class B Member of the Association and shall be
entitled to cast the number of votes specified in the Declaration for each Unit and Lot owned by
Declarant in the Project, as set forth in the Declaration. Declarant shall be entitled to exercise such
votes without regard to whether any Units have been built on such Lot and without regard to whether
Declarant is exempt from the obligation of paying assessments for the ETnit or Lot. Declarant will
continue to be a Class B Member of the Association so long as Declarant owns any Lot or Unit in the
Project. After Declarant no longer owns any Lot or Unit in the Project, Declarant will remain a Class
B Member until the later to occur of (i) ninety (90) days following the date when Declarant transferred
the last remaining Lot or Unit owned by Declarant, or (ii) ninety (90) days following the date when
all of the Units within the Project have received a certificate of occupancy from the municipal
authority having jurisdiction over the Project. If, after Declarant's Class B Membership shall
terminate, Declarant owns any Garage Lot in the Project, Declarant shall become a Class A Member
with respect to each Garage Lot owned by Declarant. Notwithstanding the foregoing, Declarant may.
at any time, deliver to the Association written notice that Declarant is withdrawing as a Class B
Member of the Association. If Declarant provides such notice while Declarant owns any Lot or Unit
in the Project, Declarant shall become a Class A Member with respect to each Unit owned by
Declarant.
Section 2. Voting.
A. Pursuant to the terms of the Declaration, Class A Members shall have no voting rights
in the Association and Declarant shall have administrative control of the Association so long as
Declarant is a Class B Member of the Association, unless governing laws (State or Federal) require
that Class A Members be allowed to vote on the topic or matter at issue. During the time in which
Declarant is a Class B Member, all matters requiring a vote of the Members or otherwise submitted
to a vote of the Members shall be determined solely by the Class B votes (i.e., solely by the Declarant's
votes).
B. When Declarant is no longer a Class B Member, then (i) the Class B membership shall
cease being a class of membership; (ii) there shall no longer be any Class B votes of the Association;
and (iii) Class A votes shall become activated and shall be allowed to vote on all matters of the
Association requiring votes of Members.
C. After Declarant is no longer a Class B Member, all matters submitted to a vote of the
Association shall be decided by the votes of the Owners. A change in the ownership of a Unit or
Garage shall be effective for voting purposes from the time the deed or other instrument effecting
3
such change is recorded, or, in connection with Owners who are venders under an installment
purchase contract, upon the full execution of the installment purchase contract. Thereafter, the new
Owner shall give the Board written notice of such change of ownership and provide satisfactory
evidence thereof. The vote for each Unit or Garage Lot must be cast as one vote, and fractional votes
shall not be allowed. In the event that a Unit or Garage Lot is owned by more than one Owner and
such Owners are unable to agree among themselves as to how their vote or votes shall be cast, they
shall lose their right to vote on the matter in question. If any Owner casts a vote representing a certain
Unit or Garage Lot, it will thereafter be conclusively presumed for all purposes that he, she or it was
acting with the authority and consent of all other Owners of the same Unit or Garage Lot unless
objection thereto is made at the time the vote is cast. In the event more than one Owner attempts to
cast the vote for a particular Unit or Garage Lot, the vote for that Unit or Garage Lot shall be deemed
void and shall not be counted.
Section 3. Annual Meeting. The first annual meeting of the Association shall be held in ,Tune
following the date of incorporation of the Association, and each subsequent regular, annual meeting
of the Association shall be held in June of each year thereafter. The Board may change the date of
the annual meeting provided it gives reasonable advance notice to all Owners. Notwithstanding any
other provision of these Bylaws, during the time Declarant is a Class B Member of the Association,
Declarant may act on behalf of the Association without a meeting of the Association.
Section 4. Special Meetings. Special meetings of the Association may be called at any time
by the Board, or upon written request of the Owners who are entitled to vote thirty percent (30%) of
all of the total votes.
Section 5. _Notice of Meetings. Written notice of each meeting of the Association shall be
given by, or at the direction of, the Secretary or person authorized by the Board to call the meeting,
by mailing a copy of such notice, postage prepaid, at least ten (10) days, and no more than sixty (60)
days, before such meeting to each Owner entitled to vote, addressed to the Owner's address last
appearing on the books of the Association, or supplied by such Owner to the Association for the
purpose of notice. In lieu of mailing, such notice may also be given by email to Owners who have
consented to receive notices by email and have provided the Association with an email address for
notice. Such notice shall specify the place, day and hour of the meeting, and, in the case of a special
meeting, the purpose of the meeting. Those present at the meeting may vote to continue the meeting
to any date within 30 days. Notice of the continued meeting will be given by mail, and at the
subsequent continued meeting, a quorum will consist of those Owners present. The President of the
Association will give notice of any meetings, and will chair meetings of the Owners.
Section 6. Quorum. The presence at the meeting of Owners entitled to cast, or of proxies
entitled to cast, at least fifty-one percent (51%) of the total number of votes shall constitute a quorum
for any action except as otherwise provided in the Articles of Incorporation, the Declaration, or these
Bylaws. If, however, such quorum shall not be present or represented at any meeting, the Owners
entitled to vote thereat shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum as aforesaid shall be present or be
represented. Unless otherwise stated in the Declaration, the Articles of Incorporation, or these
r.I
Bylaws, an action supported by majority of the votes cast at any meeting where a quorum is present
shall be the action of the Association.
Section 7. Proxies. At all meetings of the Association, each Owner entitled to cast a vote may
vote in person or by proxy. All proxies shall be in writing and filed with the Secretary. Every proxy
shall be revocable and automatically cease upon conveyance by the Owner of his or her Unit.
ARTICLE IV
BOARD; SELECTION; TERM OF OFFICE
Section 1. Nomination, Tenure, and Removal,_ The Declarant shall appoint the initial Directors
and decide who serves on the Board while Declarant is a Class B Member of the Association. When
Declarant is no Ionger a Class B Member, the Owners shall at the next annual Association meeting,
or at such earlier meeting as may be called for the purpose, elect three (3) Directors from among the
Owners. Each of the three elected Directors shall draw lots to divide themselves into terms of one,
two and three years. At each successive annual meeting, provided a quorum is present, the Owners
shall elect a Director to replace the Director whose term has expired or is then expiring. Each newly
elected Director shall serve for a three year term. If a quorum is not present at the annual meeting,
the other Directors shall select a new Director. Nomination for election to the Board may be made
by the Directors. Nominations may also be made from the floor at the annual meeting. During the
period that Declarant is a Class B Member of the Association, Declarant may remove a Director with
or without cause. After the Declarant is no longer a Class B Member, Directors may be removed with
or without cause by a vote of the Owners owning a majority of the Units and Garage Lots. If any
Director resigns, is removed, dies, or is otherwise unwilling or unable to serve during his or her term,
the remaining Directors may appoint another Owner to fill the remainder of such term.
Section ?. Election. Election to the Board shall be by secret written ballot. At such election
the Owners or their proxies may cast, in respect to each vacancy, as many votes as they are entitled
to exercise under the provisions of the Declaration. The persons receiving the largest number of votes
shall be elected. There shall be no cumulative voting.
Section 3. Number of Directors. The Board shall consist of not less than three (3) Directors
and not more than five (5) Directors. An odd number of Directors shall be required at all times. The
initial number of Directors shall be three (3). When the Declarant is no longer a Class B member, the
Owners may, at an annual meeting or a special meeting, vote to change the number of Directors. In
the event the number of Directors is increased, such additional Directors shall draw lots for terms.
The term of one of the additional Directors shall expire at the next annual meeting of the Association
to be held after the vote to increase the number of Directors, the term of the other additional Director
shall expire at the successive annual meeting of the Association.
ARTICLE V
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Regular Meetings, Regular meetings of the Board shall be held as frequently as
the Board deems appropriate, but at least annually, at such place and hour as may be fixed from time
W
to time by resolution of the Board. Should such meeting fall upon a legal holiday, then that meeting
shall be held at the same time on the next day which is not a legal holiday.
Section 2. Special Meetings. Special meetings of the Board shall be held when called by the
President of the Association, or by any two Directors, after not less than three (3) days" notice to each
Director.
Section 3. Quorum. A majority of the number of Directors shall constitute a quorum for the
transaction of business. Every act or decision done or made by a majority of the Directors present at
a duly held meeting at which a quorum is present shall be regarded as the act of the Board.
Section 4. Written Action. Nothing in these Bylaws shall prevent the Board from acting
without a meeting by means of a writing describing the action to be taken and signed by the Directors.
ARTICLE VI
POWERS AND DUTIES OF THE BOARD,• APPLICABILITY OF THE ACTS
Section 1. Powers. The Board shall have power to:
A. Adopt and publish rules and regulations governing the use of the common areas within
the Project as described in the Declaration or as shown on the Plat Map ("Common Areas"), and the
personal conduct of the Owners and their guests thereon, and to establish penalties for the infraction
thereof;
B. Exercise for the Association all powers, duties and authority vested in or delegated to
the Association and not reserved to the Owners by other provisions of these Bylaws, the Articles of
Incorporation, or the Declaration;
C. Declare the office of a member of the Board to be vacant in the event such member
shall be absent from three (3) consecutive regular meetings of the Board; and
D. Employ managers, independent contractors, or such other persons as the Board
deems necessary to exercise the powers, duties and authority vested in the Association, and to
delegate to such persons such powers as are necessary to accomplish the Association purposes for
which such persons have been employed.
Section 2. Duties. It shall be the duty of the Board to:
A. Cause to be kept a complete record of all its acts and corporate affairs and to present a
statement thereof to the Owners at the annual meeting of the Association, or at any special meeting
when such statement is requested in writing by the Owners who are entitled to vote twenty-five
percent (25%) of the total votes;
B. Supervise all officers, agents and employees of this Association, and to see that their
duties are properly performed;
rii
C. To:
1. Fix the amount of the annual assessment against each Unit and Garage Unit
at least fifteen (15) and no more than sixty (60) days in advance of each annual assessment period,
and fix the amount of any special assessments against each Unit,
2. Send written notice of each annual assessment to every Owner subject thereto
at least fifteen (15) and no more than sixty (60) days in advance of each annual assessment period
and similar notice for imposition of each special assessment; and
3. Foreclose the lien (at the option of the Board) against any Unit and Garage
Building for which assessments are not paid within ninety (90) days after due date or to bring an
action at law (at the option of the Board) against the Owner personally obligated to pay the same.
D. Issue, or to cause an appropriate officer to issue, upon demand by any person, a
certificate setting forth whether or not any assessment has been paid. A reasonable charge may be
made by the Board for the issuance of these certificates. If a certificate states an assessment has been
paid, such certificate shall be conclusive evidence of such payment;
E. Procure and maintain insurance in a manner not inconsistent with applicable law;
F. Establish a reserve fund and conduct a reserve fund analysis;
G. Cause all officers or employees having fiscal responsibilities to be bonded, as it may
deem appropriate; and
H. Cause all Common Areas and Facilities, as identified in the Declaration, to be
properly maintained and managed by the Association.
Section 3. Legal Action Involving Declarant. Neither the Board nor any other person or entity
acting, or purporting to act, on behalf of the Association shall file, commence, or maintain any
lawsuits or legal proceedings of any nature against Declarant, the individual managers, owners.
members, or officers of Declarant, Declarant's contractors, or any other person or entity involved in
the construction of the Units or Garage Buildings unless and until all of the "DISPUTE
RESOLUTION: MANDATORY BINDING ARBITRATION" provisions set forth in the Declaration
have been satisfied.
Section 4. Reserved.
Section 5. Applicability of the Nonprofit Act. The provisions of the Nonprofit Act shall apply
and govern the operations and dealings of the Association to the extent not otherwise provided in
these Bylaws, the Declaration, or the Articles of Incorporation.
7
ARTICLE V1I
OFFICERS AND THEIR DUTIES
Section 1. Enumeration of Offices. The officers of this Association shall be a President, a
Vice -President, a Secretary, a Treasurer, and such other officers as the Board may from time to time
by resolution create. Following the expiration or termination of the Period of Declarant's Control, all
officers of the Association must be Owners of Units or Garage Lots in this Project.
Section 2. Election of Officers. The election of officers shall take place at the first meeting of
the Board following each annual meeting of the Association.
Section 3. Term. The officers of the Association shall be elected annually by the Board and
each shall hold office for one (1) year unless they shall sooner resign, or shall be removed, or are
otherwise disqualified to serve.
Section 4. Special Appointments. The Board may elect such other officers as the affairs of the
Association may require, each of whom shall hold office for such period, have such authority, and
perform such duties as the Board may, from time to time, determine.
Section S. Resignation and Removal. Any officer may be removed from office with or without
cause by the Board. Any officer may resign at any time by giving written notice to the Board, the
President or the Secretary. Such resignation shall take effect on the date of receipt of such notice or
at any later time specified therein, and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 6. Vacancies. A vacancy in any office may be filled by appointment by the Board.
The officer appointed to such vacancy shall serve for the remainder of the term of the officer he
replaces.
Section 7. Multiple Offices. The offices of secretary and treasurer may be held by the same
person. No person shall simultaneously hold more than one (1) of any of the other offices except in
the case of special officers created pursuant to Section 4 of this Article. Directors may also be
officers of the Association.
Section 8. Duties. The duties of the officers are as follows:
President
A. The President shall preside at all meetings of the Owners and the Board; shall see that
orders and resolutions of the Board are carried out; shall sign all written instruments of the
Association, and shall co-sign all checks and promissory notes.
Vice -President
B. The Vice -President shall act in the place and stead of the President in the event of his
or her absence, inability or refusal to act, and shall exercise and discharge such other duties as may
be required of him or her by the Board.
Secipta
C. The Secretary shall record the votes and keep minutes of all proceedings of the Board
and of the Owners; at the direction of the President, serve notice of meetings of the Board and of the
Owners; keep appropriate current records showing the Owners of the Association together with their
addresses; and perform such other duties as required by the Board.
Treasurer
D. The Treasurer shall receive and deposit in appropriate bank accounts all monies of the
Association and shall disburse such funds as directed by the Board; shall sign all checks and
promissory notes of the Association; keep proper books of account; and shall prepare an annual
budget and a statement of income and expenditures to be presented to the ownership at its regular
annual meeting, and deliver a copy of each to the Owners.
ARTICLE VIII
COMMITTEES
The Board may appoint Committees as it deems necessary or appropriate to carry out the
purposes of the Association.
ARTICLE IX
BOOKS AND RECORDS
The books, records and papers of the Association shall at all times, during reasonable business
hours, be subject to inspection by any Owner. The Declaration, the Articles of Incorporation and the
Bylaws of the Association shall be available for inspection by any Owner at the principal office of
the Association, where copies may be purchased at reasonable cost.
ARTICLE X
ASSESSMENTS
Section 1. Exempt Units/Lots. "Exempt Unit(s)" or "Exempt Lot(s)" shall have the meaning
given in the Declaration describing the time in which such Units or Lots are exempt from the
obligation to pay Assessments to the Association.
Section 2. Association May Impos-eAssessments. As set forth in the Declaration, Declarant,
for each Unit owned by Declarant which is not exempt from the requirement to pay assessments, and
6
each Owner, other than Declarant, by being an Owner of a Unit or Garage Lot (if the Garage Owner
is the Declarant, after the Declarant is no longer a Class B member) is obligated to pay assessments
to the Association. The Board shall fix the date by which assessments must be paid. Prompt and full
payment of the assessments is secured by a continuing lien upon each Owner's Lot, Unit(s), Garage
Lot and Garage Building, Any assessment which is not paid when due shall be delinquent. The Board
has the authority to establish late fees and interest applicable to delinquent assessments and collect
the same from any Owner whose assessment is delinquent. The remedies available to the Association
are set forth in the Declaration. The amount the Association is entitled to recover in connection with
the remedies it pursues shall include, without limitation, interest, costs, late fees, fines, and reasonable
attorney's fees. No [ init Owner may waive or otherwise escape liability for the assessments, late fees,
and interest provided for herein or provided in the Declaration, by nonuse of the Common Areas or
abandonment of his or her Unit.
ARTICLE Xi
AMENDMENTS
Section 1. These Bylaws may be amended at a regular or special meeting of the Association,
by a vote, in person or by proxy, of the Owners entitled to cast sixty-seven percent (67%) of the total
votes; provided, however, that no amendment to these Bylaws shall be adopted that is inconsistent
with or contradicts any provisions of the Declaration unless and until the Declaration is also amended,
in accordance with the amendment requirements of the Declaration, to resolve such inconsistency or
contradiction. The President may prepare amendments to these Bylaws and to the Declaration and
submit the same to the Owners for approval. If such amendments are approved as provided herein,
the President may execute, certify, and record such amendments as appropriate.
Section 2. Notwithstanding Section 1, above, nothing in these Bylaws shall prevent the Board
from amending these Bylaws as permitted by the Nonprofit Act.
ARTICLE XiI
MISCELLANEOUS
Section 1. Fiscal Year. The fiscal year of the Association shall begin on January 1 and end on
December 31 of every year, except that the first fiscal year shall begin on the date of incorporation.
Section 2. Conflict. In the case of any conflict between the Articles of Incorporation and these
Bylaws, the Articles shall control; and in the case cif any conflict between the Declaration and these
Bylaws, the Declaration shall control.
Section 3. Severability. In the event that any term, provision, or section of these Bylaws is
determined by a court of competent jurisdiction to be invalid otherwise unenforceable, such invalidity
or unenforceability shall not affect the validity or enforceability of any other provision of these
Bylaws, the Declaration, or the Articles of Incorporation.
10
In witness whereof, we, the undersigned iinitial three (3) Directors of the Association have
hereunto set our hands as of the I n day of 14 W , 20�.
Signature:
Mike Miller, President
Signature:
Brian Schnell, Vice Vresident
Signature:
Aaron Earnest, Secretary
11