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Release and Termination of Easement with Carmen, LLC for Intermountain Outdoor SportsPage 1 of 2 Tara Green From: Ted Baird Sent: Tuesday, July 15, 2008 4:51 PM To: Tara Green Cc: 'Greg Hall ;'Steve Bradbury'; Bill Nary; Bill Parsons Subject: FW: Release of Easement - Interrmountain Outdoor Subdivision Follow Up Flag: Follow up Flag Status: Green Attachments: RELEASE AND TERMINATION OF EASEMENT 2.doc; CCRs 2.doc; Exhibit A to CCRs.pdf Please place the attached "Release and Termination of EasemenY' on the next available City Council Consent Agenda for approval by Council and signature by the Mayor. The existing emergency access easement to be released is in a location where the developer has proposed a building. Police and Fire have approved the substitution of the cross access easement as depicted on the exhibit, also attached to this email. From: Bill Parsons Sent: Thursday, June 19, 2008 4:00 PM To: Ted Baird Cc: C. Caleb Hood Subject: Intermountain Outdoor Subdivision Good Afternoon Ted, I have received the ok from the Meridian Police Department and the Meridian Fire Department to vacate that emergency access easement from the Intermountain Outdoor Subdivision. If you have received the draft documents from the owner's attorney feel free to place this item on the Council's agenda. Regards, Bill Parsons Associate City Planner 1Vleridian Planning Department 660 East Watertower Lane Suite 202 Meridian, Idaho 83642 PI~ONE: (208) 884-5533 FAX: (208) 888-6854 parsonsb@meridiancity.org From: Joe Silva Sent: Friday, June 13, 2008 2:40 PM To: John Overton - Police; Bill Parsons Subject: RE: Bill I'rn ok with the proposal to vacate the easernent. Have a good weekend to you and the members of the MPD. Joe Joseph P. Silva Deputy Chief/ Fire Prevention 7/18/2008 Page 2 of 2 Meridian Fire Department silvaj @meridiancity. org (208) 888-1234 Office (208) 895-0390 Fax From: John Overton - Police Sent: Friday, June 13, 2008 8:47 AM To: Bill Parsons Cc: Joe Silva Subject: RE: Good morning Bill, For sorne reason I thought we looked at this many months ago... If it is no longer needed, from a police standpoint with the current cross access agreement I see no reason that we still need to have it. Big fire trucks may have a reason but not us small police cars. Gt. ,~oFinA. Overton Community Serrrices ~Divi,sion Meridian Police Department 1401 E Watertower St. Meridian, ID 83642 , 1-208-846-7300 overtoni Cu~meridiancity. org From: Bill Parsons ~ Sent: Friday, June 13, 2008 8:42 AM To: Joe Silva; John Overton - Rolice Subject: Good Morning Gentlemen, I have attached two exhibits of the Intermountain Outdoor Subdivision Plat (One copy is a site plan showing the easement and the other is a record of survey done in 1995) that shows a 30-foot ernergency access easement to the City of Meridian. The owner of the property would like to vacate that easement as it is no longer necessary because the property was re-platted with 4 lots and a note on the recorded plat states all lots are subject to cross access agreement identified in the CC-R's. I have been asked to coordinate with you gents for your comments regarding the vacation. Please feel free to contact me if you any additional questions. Regards, Bill Parsons Associate City Planner Meridian Planning Department 660 East Watertower Lane Suite 202 Meridian, Idaho 83642 PHONE: (208) 884-5533 FAX: (208) 888-6854 parsonsb@meridiancity.org 7/18/2D08 ADA COUNTY RECORDER J. DAVID NAYARRO AMOUNT .00 2 BOISE IQAHO 08/01/08 10:10 AM DEPUTY Bonnie Oberbillig II ~ I I II II II I I I) II ( II"I I~I I II I III I III RECORQEQ-REQUEST OF 1 ~$~$~$~~ Meridian City RELEASE AND TERMINATION OF EASEMENT This Release and Termination of Easement is made this aa ~day of ~ , 2008, by the City of Meridian, an Idaho municipal corporation in connection with certain real property owned by Carmen, LLC, an Idaho limited liability company. WHEREAS, Carmen, LLC is the owner of that certain real property legally described as Lot 4, Block 1, Intermountain Outdoor Subdivision, according to the official plat thereof, recorded on the 29 day of May, 2008, in Book 101 of Plats at pages 13182 through 13184, as Instrument No. 108062334, records of Ada County, Idaho; and WHEREAS, Carmen, LLC's predecessor in interest, K2 Construction, Inc., an Idaho corporation, granted to the City of Meridian, a 30 foot (30') wide emergency access easement as more particularly described in that certain Easement instrument recorded June 20, 1995, as Instrument No. 95041581, records of Ada County, Idaho; and WHEREAS, the continuance of such easement is no longer necessary or desirable because emergency vehicle access to, among, and through all of the lots in Intermountain Outdoor Subdivision is preserved by cross-access easements more fully described and set forth in that certain Declaration of Covenants, Cond;tions and Restrictions of Intermountain Outdoor Subdivision, recorded on the 2$•r`~day of 2008, as Instrument No. ~ , records of Ada County, Idaho. NOW, THEREFORE, in consideration of the premises, the City of Meridian does hereby release, abandon and terminate the hereinabove described Easement, recorded June 20, 1995, as Instrument No. 95041581. IN WITNESS WHEREOF, the City of Mer~idian has caused this instrument to be executed by its duly authorized officers this ~r6~day of , 2008. CITY OF MERIDIAN gy ~~ ~ Tammy de erd, Mayor ```~,~,~-~ii~~~r,i~,i,,i ATTEST: .~`~~ ~ ''~. .~ ~ ,~ ~. `, ~'~~Gd~°~+r~ q '-: . ~ o = ~ By o : SEAL ~ = City Cl k ~ 9~, ~~ ' '~. 9~ G3t tg~ ~ `.`c ' P~t ~ ~ ~UNTY ~ '''''~~~~~~rr~r-~n n~~~~~~~~~``~`` RELEASE AND TERNII~TATION OF EASEMENT, Page 1 STATE OF IDAHO ) : ss. County of Ada ) On this ~~day of ~ 2008, before me, the undersigned Notary Public in and for said State, sonally appeared Tammy de Weerd and ~~'~L~ri~ir~lcnown or identified to me, to be the Mayor and City Clerk of the City of Meridian, a municipal corporation, that executed the within instrument or the persons who executed the instrument on behalf of said municipal corporation, and acknowledged to me that such City of Meridian executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. ••''~~~''•• .• ~• ~1~,•. • ,~•, . •ti % ~'o~A~p,~- ,~'' : ; ;~ ; . . - , • . ; , . . , , . .~ ;• ~ '~,, ' ; otary Public for ldaho '•;~-9 ~'~7B4t~' ;~.~+~~% Residing at 1 ~ . • ~ ~-F, ~•' My commission expires ~ -1 RELEASE AND TERMINATION OF EASEMENT, Page 2 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF INTERMOUNTAIN OUTDOOR SUBDIVISION THIS DECLARATION is made on the date hereinafter set forth by Carmen, LLC, an Idaho Limited Liability Company, hereafter referred to as "Declarant." WITNESSETH: WHEREAS, Declarant is the owner of certain real property in Ada County, State of Idaho, hereinafter referred to as "the properties," more particularly described as follows: INTERMOUNTAIN OUTDOOR SLJBDfiVISION, according to the official plat thereof, recorded in Book of Plats at Pages and , as Instrument No. , recorded on the day of 2008. WHEREAS, Declarant desires to subject the above described properties, to certain protective covenants, conditions, restrictions, reservations, easements, liens, and charges for the benefit of the properties and their present and subsequent Owners as hereinafter specified, and will convey the properties subject thereto; , NOW, THEREFORE, Declarant hereby declares that all of the properties above described, shall be held, sold and conveyed upon and subject to the easements, conditions, covenants, restrictions and reservations, hereinafter set forth, all of which are for the purpose of enhancing and protecting the value, desirability and attractiveness of, and which shall run with the properties and be binding on all parties now or hereafter having any right, title or interest therein or to any part hereof, and shall inure to the benefit of each owner thereof. ARTICLE I. DEFINITIONS The following terms shall have the following meanings: Section 1. "ASSOCIATION" shall mean and refer to Intermountain Outdoor Subdivision Property Owners Association, Inc., a non-profit corporation organized under the laws of the State of Idaho, its successors and assigns. Section 2. "DECLARANT" shall mean and refer to Carmen, LLC, an Idaho Limited Liability Company, its successors and subject to the provisions of Article XIV, Section 4, its assigns. Section 3. "DECLARATION" shall mean and refer to the Declaration of Covenants, Conditions and Restrictions applicable to the Properties recorded in the office of the County Recorder of Ada County, State of Idaho. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS, Page 1 7/1 S/08 Section 4. "LOT" or "LOTS" shall mean and refer to any plot of land shown upon any recorded subdivision map of the properties or portion thereof held in separate ownership. Section 5. "OWNER" shall mean and refer to the record owner, whether one or more persons or entities, of fee simple title to any Lot which is part of the properties, including contract sellers, but excluding those having such interest merely as security for the performance of an obligation. Section 6. "PLAT" shall mean a final subdivision plat covering any real property in Intermountain Outdoor Subdivision, as recorded in the office of the County Recorder, Ada County, Idaho, as the sarne rnay be amended by duly recorded amendments thereto. Section 7. "PRO.PERTIES" shall mean and refer to that certain real property hereinabove described. Section 8. "SUBDIVISION" shall mean the Intermountain Outdoor Subdivision as shown on a final Subdivision Plat recorded~ in the Office of the County Recorder, Ada County, Idaho. ARTICLE II. RIGHTS RESERVED BY DECLARANT Section 1. Notwithstanding anything to the contrary contained in this Declaration, the Declarant expressly reserves unto: (a) Itself, its employees, successors and assigns, its agents, representatives, contractors and their employees, all necessary or convenient easements and~ rights-of-way on, over, and across all or any part of the streets of the Subdivision for vehicular and pedestrian ingress and egress to and from any part of the Properties, or to and from any adjacent real property owned by Declarant, or its successors or assigns; (b) Itself, its successors and assigns (including any district, company or other entity providing water, sewer, gas, oil, electricity, telephone, cable television, or other similar services), all necessary or convenient easements on, over, under, and across all or part of any Lot, together with the utility easements as provided on the Plat for the installation, use, maintenance, and repair of all lines, wires, pipes, and all other things necessary for all such services, provided that any such lines, wires, or pipes shall be underground and further provided that all work done in connection therewith shall be performed with reasonable care and that the surface of said easement areas shall, within thirty (30) days following the completion of such work, be restored to the level and condition that existed prior to the doing of such work; and (c) Itself, its ernployees, successors and their employees the right to use any Lot owned by it, where applicable, to facilitate and complete the development of the Properties, iricluding without limitation the use thereof, where applicable for: DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS, Page 2 ~irsios (1) Construction, excavation, grading, landscaping, parking, and/or storage; (2) The rnaintenance and operation of a sales office and model units for sales purposes; (3) The showing to potential purchasers of any unsold Lot, unit, or improvements within the Subdivision; and/or (4) The display of signs to aid in the sale of any unsold Lots and units or all or part of the Subdivision. Section 2. Right to Amend Declaration: Declarant reserves the right to amend this Declaration in accordance with the provisions of Article XIV, Section 3, below, and to set forth additional covenants, conditions, restrictions anii easements to be applicable to any Lot not yet sold. Section 3. Reservation of Development Ri h~ts: No provision of this Declaration shall be construed as to prevent or limit Declarant's right to complete development of the Properties and to construct improvements thereon, nor Declarant's right to maintain construction, sales or leasing offices or similar facilities on any portion of the Properties, nor Declarant's right to post signs incidental to construction, sales or leasing. Any development plans or schemes for the Properties in existence prior to or following the effective date of this Declaration are subject to change at any time by Declarant, and impose no obligation on Declarant as to how the Properties are to be developed or improved. ARTICLE III. PROPERTY OWNERS ASSOCIATION Section 1. Membership: Every Owner of a Lot which is subject to assessment shall be a member of the Association. The foregoing is not intended to include persons or entities who hold an interest rnerely as security for the payment of an obligation. Membership shall be appurtenant to and may not be separated frorn ownership of any Lot which is subject to assessrnent. Such ownership shall be the sole qualification for membership and shall automatically commence upon a person becoming such Owner and shall automatically terminate and lapse when such ownership in said property shall terminate or be transferred. Section 2. Voting Ri ts: The Association shall have two classes of voting membership: Class A: Class A members shall be all Owners, with the exception of the Declarant and shall be entitled to one (1) vote for each Lot owned. When more than one person holds an interest in any Lot, all such persons shall be members. The vote for such Lot shall be exercised as they determine, but in no event shall the vote cast with respect to any Lot be split. The vote applicable to any said Lot being sold under contract of purchase shall be exercised by the contract seller, unless the contract expressly provides otherwise. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS, Page 3 ~n a~os Class B: Class B member(s) shall be Declarant and shall be entitled to ten (10) votes for each Lot owned. The Class B rnembership shall be converted to Class A membership on the earlier of the date that all Lots owned by Declarant are occupied or title has transferred to a third PartY• Section 3. Assessments: A. Creation of Lien and Personal Obli~ations of Assessrnents: Each Owner of any Lot by acceptance of a deed therefor (whether or not it shall be so expressed in such deed), is deemed ~to covenant and agree to pay to the Association: 1. Annual and other regular periodic assessments or charges; and 2. Special assessments for capital improvements, such assessments to be fixed, established and collected frorn time to time as hereinafter provided 3. Limited assessments, such assessments to be fixed, established and collected from time to time as hereinafter provided. The regular, special and lirnited assessments, together with interest, costs of collection and reasonable attorney fees shall be a charge on the Lot and shall be a continuing lien upon the Lot against which such assessment is made. Each such assessment, together with interest, costs of collection and reasonable attorney fees, shall also be the personal obligation of the Owner of such Lot at the time when the assessment fell due. The obligation shall remain a lien on the Lot until paid or foreclosed, but shall not be a personal obligation of successors in title, unless expressly assumed. B. Purpose of Annual Assessments: The annual assessment levied by the Association shall be used for the pnrpose of the operation, maintenance, repair and improvement of the Irrigation Water Supply System and the landscape buffer areas depicted on the Plat, for the reasonable expenses incurred in the operation of the affairs of the Association, for the expenses incurred by the Association in connection with any of its obligations contained in this Declaration or in the By- laws of the Association, and for any other purpose reasonably authorized by the Board of Directors of the Association. C. Amount of Annual Assessment: The Annual Assessments provided for herein shall initially be in the amount of $300.00 payable in full at the closing of the sale of each Lot. Not less than thirty (30) days before the end of each fiscal year, the Board of Directors of the Association shall prepare a budget for the Association for the coming year. In preparing its budget, the Board of Directors shall estimate the common expenses of the Association to be paid during the year, make suitable provision for accumulation of reserves, and shall take into account any surplus or deficit carried over from the preceding year and any expected income to the Association. If, during the year, the budget proves to be inadequate for any DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS, Page 4 ~ii sios reason, including non-payment of any Owner's assessment, the Board rnay prepare a supplemental budget for the remainder of the year. The sums required by the Association for common expenses as reflected by the annual budget and any supplernental budgets shall be divided into equal installrnents to be paid monthly or quarterly, as determined by the Board of Directors. The said installrnents shall be assessed against the Lots equally. D. Initiation Assessrnent: Upon the initial conveyance of each Lot, the purchaser thereof shall pay an initiation assessment to the Association in the amount of $150.00. E. Snecial Assessments for Capital Improvements: In addition to the annual assessments authorized above, the Association may levy, in any assessment year, a special assessment applicable to that year only for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair or replacement of a capital irnproyement upon the landscape buffer area or to the Irrigation Water Suppiy System; provided that any such assessment shall have the assent of two-thirds (2/3) of the votes of inembers who are voting in person or by proxy at a rneeting duly called for this purpose. Any such special assessment shall be allocated among the Lots in the same manner as is provided for annual assessments. F. Notice and Quorum for Anv Action Authorized Under Section 3.E: Written notice of any meeting called for the purpose of taking any action authorized under Section 3.E., above, shall be sent to all members not less than thirty (30) days nor more than sixty (60) days in advance of the meeting. At the first such rneeting called, the presence of inembers or of proxies entitled to cast fifty percent (50%) of all the votes of inembership shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the sarne notice requirement, and the required quorum at the .subsequent meeting shall be one-half (1/2) of the required, quorum at the preceding meeting. No such subsequent meeting shall be held more than sixty (60) days following the preceding rneeting. G. Limited Assessment: The Association shall have the power to incur expenses for the rnaintenance and repair of any Lot or improvement, for the repair of damage to the Common Areas caused by the negligence or willful misconduct of any Owner or his invitees, agents, employees or contractors or for the correction of any violation of this Declaration, if the responsible Owner has failed or refused to perform such maintenance or repair or to correct such violation after written notice of the necessity thereof has been delivered by the Board of Directors to the responsible Owner. The Board of Director shall levy a limited assessment against the Owner to reimburse the Association for the cost of such maintenance, repair or corrective action, together with any other cost or expense, including attorney's fees, arising out of or incident to such maintenance, repair or corrective action or the collection of the assessment therefore. Any such limited assessment shall be DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS, Page 5 ~n aios due within fifteen (15) days of the date written notice thereof is delivered to the responsible Owner. The notice required in this Paragraph shall be delivered personally to such Owner or sent by first class or certified mail to the last known address of such Owner as shown on the records of the Association. H. Date of Commencement of Annual Assessments; Due Dates: The annual assessments provided for herein shall commence as to a Lot sold on the first day of the rnonth following the initial conveyance of the said Lot. The first annual assessment shall be adjusted according to the number of months remaining in the calendar year. The Board of Directors of the Association shall fix the amount of the annual assessment against each Lot at least thirty (30) days in advance of each annual assessrnent period. Written notice of the annual assessment shall be sent to every Owner subject thereto. The due dates shall be established by the Board of Directors. The Association shall, upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the Association setting forth whether the assessments on a specified Lot have been paid. A properly executed certificate of the Association as to the status of assessments on a Lot is binding upon the Association as of the date of its issuance. I. Effect of Nonpavment of Assessrnents• Remedies of Association: Any assessments not paid within thirty (30) days after the due date shall bear interest from the due date at the rate of twelve percent (12%) per annum. The Association rnay bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien against the property. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Irrigation Water Supply System or abandonment of his Lot. Subordination of the Lien to Mort~a~: The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage. Sale or transfer of any Lot shall not affect the assessment lien. However, the sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding in lieu thereof shall extinguish the lien of such assessments as to payrnents which became due prior to such sale or transfer. No sale or transfer shall relieve such Lot from liability for any assessments thereafher becoming due or from the lien thereof. K. Exempt Propertv: The following property, subject to this Declaration, shall be exempt from the assessments created herein: All property expressly dedicated to and accepted by a Local public authority; and 2. All Lots owned by Declarant, until the title is transferred to another, or until occupancy whichever occurs first. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS, Page 6 ~n sios ARTICLE IV. EASEMENTS Section 1. Landscape Buffer Area: Declarant hereby grants for the benefit of the Association and the Owners, an easement or easements for the operation, maintenance and repair of a landscape buffer area in the location depicted on the Plat, together with all rights of ingress and egress necessary for the full and complete use, occupation and enjoyment of the easements hereby reserved, and all rights and privileges incident thereto, including the right to extend power thereto and the right from time to time to remove obstructions which may interfere wi,th the use, occupation or enjoyrnent of the reserved easement and the use, operation and maintenance of the contemplated signs. Section 2. Easement for Maintenance: Declarant and the Association shall have a permanent easement to go upon the privately owned property of Owners in this Subdivision to perform such maintenance obligations as set forth in this Declaration, together with all rights of ingress and egress necessary for the full and complete use, occupation and enjoyment of the easements hereby reserved, and all rights and privileges incident thereto, including the right from time to tirne to cut, trim and remove trees, brush, overhanging branches and other obstructions which may injure or interfere with the use, occupation or enjoyment of the reserved easement. Section 3. Cross Parking Cross Easement: Declarant hereby grants and reserves for the benefit of the Association, the Owners, and their invitees, a perpetual, non-exclusive cross easement for parking purposes on any and all parking areas located on each of the Lots subject to this Declaration as described and/or depicted in Exhibit A attached hereto. The parking rights granted hereby may not be terminated or extinguished without the written consent of all Owners, the Association, and any and all parties having an interest in any Lot in the Subdivision. All parking lot improvements shall be maintained by the Owner of the Lot on which such improvements are located in accordance with the provisions of Article VI below; provided, however, that Declarant reserves to itself and the Association the right to install, maintain, replace, and restore such parking lot improvements as may be deemed appropriate by the Declarant or the Association in the event the Owner fails to do so. The Association shall have the right to adopt reasonable rules and regulations regarding the use of parking areas by the Owners and their invitees, including but not limited to rules regarding the number and type of vehicles which may be kept on a Lot, the length of time any vehicles rnay be parked and the location where vehicles may be parked. No parking area located on any Lot shall be modified in size, shape, parking configuration or location without the prior written consent of the Board of Directors of the Association, all Owners and all parties having any interest in any Lot in the Subdivision. Section 4. Cross Access Easernent: Declarant hereby grants and reserves, for the benefit of the Association, the Owners and their invitees, a perpetual and indefeasible easement over and across each of the Lots subject to this Declaration, for the purpose of ingress to and egress from each of the Lots in the Subdivision, such easements being located as described and/or depicted in Exhibit A attached hereto. The perpetual right of ingress and egress over and across the said Lots in the said locations may not be terminated or extinguished, nor may the location thereof by changed, without the written consent of all Owners, the Association, any and all parties having an interest in any Lot in the Subdivision. All drive aisle improvements shall be DECLARATION OF COVENANTS, CONI)ITIONS AND RESTRICTIONS, Page 7 ~nsios ' maintained by the Owner of the Lot on which such improvements are located in accordance with the provisions of Article VI, below; provided, however, that Declarant reserves to itself and the Association the right to install, maintain, replace, and restore such drive aisle improvements as rnay be deemed appropriate by the Declarant or the Association in the event the owner fails todo so. ARTICLE V. [Not Used] AR'TICLE VI. MAINTENANCE RESPONSIBILITY Section 1. Association Responsibilitv: The Association shall provide maintenance to and be responsible for the landscape buffer area depicted on the Plat and all improvements located thereon, and the Irrigation Water Supply Systern. In the event the need for maintenance or repair is caused through the willful or negligent act of an Owner or his invitees, the costs of such maintenance or repairs shall be added to and become part of the assessment to which such Owner's Lot is subject. Section 2. Owner Responsibilitv: Each Owner shall be responsible for maintaining and keeping in good order and repair all buildings, parking lots, drive aisles, landscaping, sidewalks and drainage facilities associated with his buildings, and all other improvernents located on such Owner's Lot except those which are specifically identified herein to be rnaintained by the Association. Each Owner or occupant shall remove, at his own expense, any rubbish or trash of any character which may accumulate on its Lot and shall, prior to the construction of improvements thereon, be responsible to cut or otherwise control the weeds and other noxious plants on his Lots so as to avoid any unsightly condition or hazard or nuisance to other Lots. If an Owner fails to perform his maintenance responsibilities as set forth herein, the Association shall, upon fifteen (15) days prior written notice to the Owner, have the right to correct such condition, and to enter upon the Owner',s Lot for the purpose of doing so, and seek reimbursement for the cost thereof in accordance with the provisions of Article III, Section 3, Paragraph G, above. ARTICLE VII. IRRIGATION WATER SUPPLY SYSTEM Section 1. Irrigation Water Supplv S s~~tem: All Lots shall have access to a pressurized imgation water system ("Irrigation Water Supply System") to be constructed by Dectarant and owned and operated by the Association for the ~ benefit of the Association, Declarant and Lot Owners, in accordance with the following provisions: A. The irrigation water supplied through the Irrigation Water Supply System is derived from a well located on Lot 4 which well shall be owned by the Association. All water rights associated with the well have been or shall be transferred to the Association. Accordingly, no Owner shall have any right, title or interest in any of such water or water rights. DECLARIITION OF COVENANTS, CONDITIONS AND RESTRICTIONS, Page 8 ~n s~os B. Use of the water delivered through the Irrigation Water Supply System shall be subject to such rules and regulations of the Association as may from time to time be adopted by the Association. C. The Association shall be responsible for the operation, maintenance, repair and replacement of the Irrigation Water Supply System including the well and related facilities and equipment up to the stub provided for each Lot. Each Owner shall be responsible for the costs incurred in installing, operating, maintaining, repairing or replacing any component of the sprinkler irrigation system located on a Lot from and beyond the said stub. D. Water from the Irrigation Water Supply System is non-potable. Each Owner shall be responsible to insure the irrigation water used on his Lot is not consumed by any person or used for culinary purposes. E. Any Owner desiring to connect an alternate source of irrigation water to the irrigation system on his Lot shall be responsible for the cost thereof (both: for the connection and the water) and have a backflow prevention device installed to prevent the alternate source from being contaminated with non-potable irrigation water, in accordance with applicable law. F. All Owners shall be required to pay the assessment levied by the Association for the operation, maintenance, repair and replacement of the Irrigation Water Supply System and delivery of irrigation water regardless of actual use or non-use of water from the Irrigation Water Supply System. Section 2. Easement: Declarant reserves to itself, its agents, contractors, subcontractors and employees, successors and assigns, and grants to the Association, such nonexclusive easements as are required for construction, operation, maintenance, repair and replacement of the pressurized Irrigation Water Supply System, including but not limited to the well and related facilities. ARTICLE VIII. PROPERTY USE RESTRICTIONS The following restrictions shall be applicable to the properties and shall be for the benefit of and lirnitations upon. all present and future Owners of said property, or of any interest therein: A. Lot Use: No Lot shall be used except for such uses as are perrnitted pursuant to the ordinances of the City of Meridian and have been approved by the Architectural Control Comrnittee as provided hereinbelow. All Lots and improvements constructed thereon must comply with all applicable governmental rules, ordinances, laws, statutes, regulations, permits and approvals. B. Garbage and Refuse Disposal: No part of said property shall be used or maintained as a dumping ground for rubbish, trash or other waste. No garbage, trash or other waste shall be kept or maintained on any part of said property except in a sanitary container. Any incinerators or other equipment for the DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS, Page 9 ~i~ sioa storage or disposal of such material must not violate setback restrictions, must be enclosed with an aesthetic screen or fence, as may be approved by the Architectural Control Committee and shall be kept in a clean and sanitary condition. C. Nuisance: No noxious or offensive or unsightly conditions shall be permitted upon any part of said property, nor shall anything be done thereon which may be or become an annoyance or nuisance to the other Owners. D. Leasin~ Restrictions: Any lease between an Owner and his tenant shall provide that the terms of the lease shall be subject in all respects to the provisions contained in this Declaration, the Association's Articles of Incorporation and its Bylaws, and that any failure by said tenant to comply with the terms of such documents shall be a default under such lease. E. Antennas/Satellite Dishes: No exposed radio or television antenna or satellite dishes shall be erected on the Properties without the prior approval of the Architectural Control Committee, "which approval may be withheld in its sole discretion. F. Material Storage: No building material of any kind shall be placed or stored upon a Lot until the Owner or his builder is ready and able to cornmence construction and then such material shall be placed within the property setback lines of the Lot upon which the structure is to be erected. The Architectural Control Committee and/or the Association (through its agents) shall have the right to enter upon any vacant Lot for the purpose of burning or removing weeds, brush, growth, or refuse. G. Hazardous Materials: At no time shall any Owner permit the storage on any Lot of hazardous materials exceeding the amounts specified in the Uniform Buildin~ Code from time to time applicable to the Properties. ARTICLE IX. BUILDING RESTRICTIONS Section 1. Building Restrictions: No buildings shall be erected, altered, placed or permitted to remain on any Lot other than those which have been approved pursuant to the ordinances of the City of Meridian and which have been further approved by the Architectural Control Comrnittee as provided for hereinbelow. Section 2. Setbacks: No improvements may be constructed or rnaintained on a Lot within the minimum building setback lines as provided for by the Zoning Ordinance of the City of Meridian. Section 3. Permits: Each Owner shall be responsible to obtain, at his sole expense, such permits as may be required by any governmental authority having jurisdiction thereof for the Owner's proposed use. In addition, each Owner shall be responsible for all fees and charges DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS, Page 10 ~irsios ' of any description whatsoever imposed by any governmental authority as a result of the proposed use of the Owner's Lot. Section 4. Exterior Li ting: Exterior building, lighting shall be furnished, installed and maintained on each Lot by the Owner thereof as designated and approved by the Architectural Control Committee. Each Owner shall keep all such exterior lighting operational during all hours of darkness. Section 5. Landscapin~ No landscaping improvements shall be installed until the plans and specifications therefor have been submitted to and approved by the Architectural Control Gomrnittee in accordance the provisions of Article X, below. All landscaping improvements shall conform to the approved plans and specifications and guidelines promulgated by the Architectural Control Committee. Section 6. S~ No exterior signs shall be installed ar maintained on any Lot (or any structure thereon) without first having been approved by the Architectural Control Committee as to the location, size, color, materials and design thereof. Each Owner desiring to install any exterior signage on any Lot (or any structure thereon) shall first subrnit plans and specification therefor to the Architectural Control Committee for its review and approval in accordance with the provisions of Article X, below. Section 7. Prosecution of Construction Work: The construction of all buildings and associated improvements shall be prosecuted diligently and continuously from the time of the commencement thereof until such building and associated improvements are fully completed and painted. All structures shall be completed as to external appearance, including finished painting, within nine (9) months from the date of the commencement of construction, unless prevented by causes beyond the control of the Owner or builder and then only for such extended time as that cause continues. Job sites are to be kept clean during construction. All dirt, nails, gravel and other building materials must be removed from the street and sidewalk daiiy. Work vehicles shall not be parked in front of occupied buildings nor shall they block drive aisles. Dumpsters and portable toilets are the responsibility of the Owner or his contractor and shall be kept orderly at all tirnes and shall be emptied on a timely basis. All contractors and subcontractors shall be prohibited from keeping dogs at the jobsite. Each Owner shall be responsible to repair any damage to any road, utility facility or other onsite or offsite improvement caused by the Owner or the Owner's agents or contractors during the construction of any improvements on the Owner's Lot. In the event an Owner or his contractor shall fail or refuse to comply with the jobsite maintenance requirements of this Section, the Declarant or the Association shall take such remedial action as it deems appropriate, including but not limited to the clean-up of the Properties, the costs of which may be added to and become a part of the assessment to which such Owner's Lot is subject. ARTICLE X. ARCHITECTURAL CONTROL Section 1. Architectural Control Committee: In order to protect the quality and value of the Properties, and for the continued protection of the Owners thereof, an Architectural Control Committee is hereby established consisting of three or more mernbers to be appointed by DECLARATION OF COVENAI~TTS, CONDITIONS AND RESTRICTIONS, Page 11 vi sios the Declarant for as long as Declarant shall own any Lot and thereafter by the Board of Directors of the Association at each annual meeting of the Board. Section 2. Approvals Reguired: No building or other structure (including but not limited to fences, walls, signs, and parking areas) or landscaping improvements of any type shall be commenced, built, constructed, placed, or maintained upon any Lot, nor shall any exterior addition, change or alteration of existing improvements be made, until the plans and specifications showing the nature, kind, shape, configuration, height, materials, color, location and such other detail as the Architectural Control Committee may require, shall have been submitted to and approved in writing by the Architectural Control Committee as to harmony of external design and location in relation to surrounding structures and topography and as to conformity with requirements of this Declaration. In the event the Architectural Control Committee fails to approve, disapprove, or specify the deficiency in such plans, specifications and location within thirty (30) days after submission to the Architectural Control Committee in such form as they may require, it shall be deemed approved. The Architectural Control Committee shall have the right to refuse to approve any design, plan or color for such improvements, construction or alterations which, in its opinion, are not suitable or desirable for any reason, aesthetic or otherwise. In so passing on such design, the Committee shall have the privilege in the exercise of its discretion to take into consideration the suitability of the proposed structure or alteration, the materials of which it is to be built, and the exterior color scheme in relation to the site ~upon which it is proposed to be erected. The Architectural Control Committee many also consider whether the design of the proposed structure or alteration is in harmony with the surroundings, the effect of the structure or alteration when viewed from adjacent or neighboring property, and any and all other facts which, in the Architectural Control Committee's opinion, shall affect the desirability of such proposed improvement, structure or alteration. Actual construction shall comply substantially with the plans and specifications approved. Section 3. Submissions: Requests for approval of the Architectural Control Cornmittee shall consist of such documents and other materials as may be reasonably requested by the Architectural Control Committee including, without limitation, the following: A. Site Plan. A site plan showing the location of buildings and all other structures and improvements, including parking areas, sidewalks, fences, and walls on the Lot, Lot drainage and all setbacks or other pertinent informatiori related to the improvements. B. Building Plan. A building plan shall consist of preliminary or final blueprints, elevation drawings of the north, south, east, and west sides, detailed exterior specifications for each building which shall indicated, by sample, if required by the Architectural Control Comrnittee, all exterior lighting, colors, material and finishes, including roof. C. Landscape Plan. A landscape and irrigation plan prepared by a licensed architect for that portion of the Lot to be landscaped which shall show the location, type, DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS, Page 12 7/tS/OS and size of trees, plants, ground cover, shrubs, berms and mounding, grading, drainage, sprinkler system, fences, freestanding exterior lights, driveways, parking areas, and walkways. D. Sign~. A signage plan showing the location, design, size, color, and material proposed for all exterior signs. Section 4. Rules and Regulations: The Architectural Control Committee is hereby authorized to adopt rules and regulations to govern its procedures and the requirements for making submissions and obtaining approval as the Committee deems appropriate and in keeping with the spirit of due process of law. The Architectural Control Committee is further hereby ernpowered to adopt such rules and regulations as it shall deem appropriate, consistent with the provisions of this Declaration, pertaining to matters of design, materials, colors, and aesthetic interests. Any such rules and regulations may be amended from time to time in the sole discretion of the Architectural Control Committee. 'I'he failure of the Architectural Control Committee to adopt any such rules and regulations shall not form the basis for an attack upon the exercise of Architectnral Control Committee's discretion, it being the intent of this Declaration to provide the Architectural Control Committee with as broad discretion as it perrnissible under the law. Section 5. Fees: The Architectural Control Committee may establish, by its adopted rules, a fee schedule for an architectural review fee to be paid by each owner submitting plans and specifications for approval. No submission for approval will be considered complete until such fee has been paid. Such fee shall not exceed such reasonable amount as may be required to reimburse the Architectural Control Comrnittee for the costs of professional review of submittals and the services of a consultant to administer the matter to its completion, including inspections which may be required. Section 6. Variances: The Architectural Control Committee may authorize variances from cornpliance with any of the architectural provisions of this Declaration, including restrictions upon height, size, floor area or placement of structures, or similar restrictions, when circumstarices such as topography, natural obstrucrions, hardship, aesthetic or environmental considerations may require. Such variances must be evidenced in writing, must be signed by at least two (2) rnembers of the Architectural Control Committee, and shall become effective upon recordation in the office of the Ada County Recorder. If such variances are granted, no violation of the covenants, conditions or restrictions contained in this Declaration shall be deemed to have occurred with respect to the matter for which the variance was granted. The granting of such a variance shall not operate to waive any of the terrns and provisions of this Declaration for any purpose except as to the particular Lot and particular provision hereof covered by the variance, nor shall it affect in any way the Owner's obligation to comply with all governmental laws and regulations affecting such Owner's use of the Lot, including but not limited to zoning ordinances or requirements imposed by any governmental or municipal authority. Section 7. Waiver: The approval of any plans, drawings, or specifications for any structure, improvements, or alteration, or for any matter requiring the approval of the DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS, Page 13 ~nsios Architectural Control Committee, shall not be deemed a waiver of any right to withhold approval of any similar plan, drawing, specifications, or rnatters subsequently submitted for approval. Section 8. Liabilitv: Neither the Architectural Control Committee nor any member thereof shall be liable to the Association, any Owner, or any other party, for any damage suffered or claimed on account of any aot, action or lack thereof, or conduct of the Architectural Control Comrnittee, or the respective members thereof, so long as the Architectural Control Cornmittee, or the respective members thereof acted in good faith on the basis of information they then possessed. Section 9. Certification by Secretarv: The records of the Secretary of the Association shall be conclusive evidence as to all matters shown by such records and the issuance of a certificate of completion and compliance by the Secretary or Assistant Secretary of the Association showing Chat the plans and specifications for the improvement or other matters therein provided for have been approved and that said improvements have been made in accordance therewith, or a certificate as to any matters relating to and within the jurisdiction of the Association by the Secretary thereof, shall be conclusive evidence that shall fully justify and protect any title company certif~ng, guaranteeing or insuring title to said property, or any portion thereof or any lien thereon and/or any interest therein as to any matters referred to in said certificate, and shall fully protect any purchaser or encumbrancer from any action or suit under this Declaration. After the expiration of one (1) year following the issuance of a building permit therefor by municipal or other governmental authority, any structure, work, improvement or alteration shall, as to any purchaser or encumbrancer in good faith and for value and as to any title company which shall have insured the title thereof, be deemed to be in compliance with all the provisions hereof unless a notice of noncompliance executed by the Association shall have appeared of record in the office of the County Recorder of Ada County, State of Idaho, or unless legal proceedings shall have been instituted to enforce completion or compliance. Section 10. Construction and Sales Period Exception: During the course of construction of any permitted structures or improvements and during the initial sales period, the restrictions (including sign restrictions) contained in this Declaration or in any Supplemental Declaration shall be deemed waived to the extent necessary to permit such construction and the sale of all Lots; provided that, during the course of such construction and sales, nothing shall be done which will result in a violation of these restrictions upon completion of construction and sale. ARTICLE XI: INSURANCE AND BOND Section 1. Required Insurance: The Association shall obtain and keep in full force and effect at all times the following insurance coverage provided by companies duly authorized to do business in Idaho. The provisions of this Article 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. A. A comprehensive policy of public liability insurance. DECLf1RATION OF COVENANTS, CONDITIONS AND RESTRICTIONS, Page 14 ~n sios B. Workmen's compensation and employer's liability insurance and all other similar ' insurance with respect to ernployees of the Association in the amounts and in the forms now or hereafter required by law. Section 2. Ontional Insurance: The Association may obtain and keep in fwll force and effect at all times the following insurance coverage provided by companies duly authorized to do business in Idaho. A. Liability insurance affording coverage for the acts, errors and omissions of its directors and officers, including members of the Architectural Control Committee and other committees as may be appointed from time to time by the Board of Directors of such association in such amount as may be reasonable in the premises. B. The Association may obtain bonds and insurance against such other risks, of a sirrular or dissimilar nature, as it shall deem appropriate with respect to the protection of the properties, including any personal property of the Association located thereon, its directors, officers, agents, employees and association funds. Section 3. Additional Provisions: The following additional provisions shall apply with respect to insurance: A. Insurance secured and maintained by the Association shall not be brought into contribution with insurance held by the individual Owners or their mortgages. B. Each policy of insurance obtained by the Association shall, if possible, provide: A waiver of the insurer's subrogation rights with respect to the Association, its officers, the Owners and their respective servants, agents and guests; that it cannot be canceled, suspended or invalidated due to the conduct of any agent, officer or employee of the Association without a prior written demand that the defect be cured; that any "no other insurance" clause therein shall not apply with respect to insurance held individually by the Owners. C. All policies shall be written by a company licensed to write insurance in the state of Idaho and all hazard insurance policies shall be written by a hazard insurance carrier holding financial rating by Best's Insurance Reports of Class VI or better. ARTICLE XII: MORTGAGEE PROTECTION Notwithstanding anything to the contrary contained in this Declaration or in the Articles or Bylaws of the Association: A. The Association shall maintain an adequate reserve fund for the performance of its obligations, including the maintenance, repairs and replacement of those improvements for which it is responsible, and such reserve shall be funded by at least quarterly assessments. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS, Page 15 ~i~ sios B. The holders of First Mortgages shall have the right to examine the books and records of the Association and to require annual reports or other appropriate financial data. C. Any lien which the Association may have on any Lot for the payment of assessments attributable to such Lot will be subordinate to the lien or equivalent security interest of any Mortgage on the Lot recorded prior to the date notice of such assessment lien is duly recorded. D. Unless all institutional holders of Fi,rst Mortgages have given their prior written approval, no Association shall: Change the method of determining the obligations, assessments, dues or other charges which may be levied against an Owner. 2. By act or omission change, waive or abandon any scheme of regulations, or enforcement thereof, pertaining to the architectural design or the exterior appearance of the irnprovements on the Properties. Amend materially this Declaration, the Association's Articles of Incorporation, or its Bylaws. ARTICLE XIII: ANNEXATION Section 1. Time for Annexation; Land Sub~ject to Annexation: Declarant hereby reser'ves the right to annex any other real property into the project described herein by recording a Notice of Annexation or Supplemental Declaration particularly describing the real property to be annexed and added to the project created by this Declaration, pursuant to the provisions of this Article. Upon the recording of a Notice of Annexation containing the provisions set forth in this Section (which Notice may be contained within a Supplemental Declaration affecting such property), except as may be provided for therein, the covenants, conditions and restrictions contained in this Declaration shall apply to the added land in the same manner as if it were originally covered by this Declaration and originaliy constibuted a portion of the project; and thereafter, the rights, privileges, duties and liabilities of the parties to this Declaration with respect to the added land shall be the same as with respect to the original land; and the rights, privileges, duties and liabilities of the Owners, lessees and occupants of Lots within the added land shall be the same as in the case of the original land. Notwithstanding the foregoing, any Supplemental Declaration may provide a special procedure for amendment of any specified provision thereof, e.g., by a specified vote of only the owners of Lots within the area subject thereto. Any provision of a Supplemental Declaration for which no special amendment procedure is provided shall be subject to amendment in the manner provided in this Declaration. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS, Page 16 ~n sios Section 2. Procedure for Annexation: Any such real property may be annexed into the project by the recordation of a Notice of Annexation executed by Declarant and containing the following information: A. A reference to this Declaration, which reference shall state the date of recordation hereof and the Recorder's instrument number or the book and page of the official records of the County where this Declaration is recorded; B. An exact legal description of the added land; C. A statement that the provisions of this Declaration shall apply to the added land, except as set forth therein; and D. A statement of the use restrictions applicable to the annexed property, which restrictions may be the same or different from those set forth in this Declaration. Section 3. De-Annexation: Declarant may delete all or a portion of the property described in this Declaration and any annexed property from the Properties and from coverage of this Declaration and the jurisdiction of the Association, so long as Declarant is the owner of all such property and provided that a notice of de-annexation is recorded in the official records of the County where this Declaration is recorded in the same manner as a notice of annexation. Members other . than Declarant as described above, shall not be entitled to de-annex all or any portion of the Properties except on the favorable vote of all Members of the Association and approval of Declarant so long as Declarant owns any Lot, part, parcel or portion of the Properties. ARTICLE XIV: GENERAL PROVISIONS Section 1. Enforcernent: The Association or any Owner or the owner of any recorded Mortgage upon any part of said property, shall have the right to enforce, by any proceedings at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Failure by the Association or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right do so thereafter. In the event the Association or an Owner is required to initiate any action to enforce the provisions of this Declaration, it shall be entitled to recover from the Owner against whorn enforcement is sought, all attorney fees and costs incurred as a consequence thereof, whether or not any lawsuit is actually filed, and if such enforcernent action is initiated by the Association, any such attorney fees and costs so incurred shall be added to and become a part of the assessment to which such Owners Lot is subject. Section 2. Severabilitv: Invalidation of any one of these covenants or restrictions by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect. Section 3. Term and Amendment: The covenants and restrictions of this Declaration shall run with the land and shall inure to the benefit of and be enforceable by the Association or the legal Owner of any Lot subject to this Declaration, their respective legal representatives, DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS, Page 17 ~n aios heirs, successors and assigns, for a terrn of twenty-five (25) years frorn the date this Declaration is recorded, after which time said covenants shall be automatically exterided for successive periods of ten (10) years. Except as otherwise provided herein, any of the covenants and restrictions .of this Declaration, except the easements herein granted, may be amended at any time by an instrument signed by members entitled to cast not less than sixty-six and two-thirds percent (66-2/3) of the votes of rnembership; provided that no amendment or modification of this Declaration shall be effective to amend, modify, replace, repeal or terminate any rights or easements that were reserved or granted to Declarant herein without the express written consent of Declarant; and further provided that Declarant may amend this Declaration at any time that Declarant owns real property subject hereto. Any amendment must be recorded. Section 4. Assignment bv Declarant: Any or all rights, powers and reservations of Declarant herein contained may be assigned to the Association or to any other corporation or association which is now organized or which may hereafter be organized and which will assume the duties of Declarant hereunder pertaining to the particular rights, powers and reservations assigned, and upon any such eorporation or association evidencing its intent in writing to accept such assignment, have the same rights and powers and be subject to the same obligations and duties as are given to and assumed by Declarant herein. All rights of Declarant hereunder reserved or created shall be held and exercised by Declarant alone, so long as it owns any interest in any portion of said property. IN WITNESS WHEREOF, Declarant has caused its corporate name to be hereunto subscribed and its corporate seal affixed this _ day of 2008. DBCLARANT: Carmen, LLC By Greg Ha11,1VIanager DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS, Page 18 7fl 8/OS STATE OF IDAHO ) ) ss. County of Ada ) On this day of , 2008, before me, the undersigned Notary Public in and for said State, personally appeared Greg Hall, known or identified to me to be the Manager of Carnien, LLC, the limited liability company that executed the instrwnent or the person who executed the instrument on behalf of said limited liability company, and acknowledged to me that such limited liability company executed the sarne. IN WITNESS WHEREOF, I have hereunto set rny hand and affixed my official seal the day and year in this certificate first above written. Notary Public for ldaho Residing at Boise, Idaho My Commission Expires: DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS, Page 19 ~n sios EXHIBIT A CROSS ACCESS AND PARKING EASEMENT AREAS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS, Page 20 ~n sioa ~- - ir o, ~ ~ ~ _-~ ~~