DECLARATION
OF PROTECTIVE COVENANTS,
CONDITIONS,
RESTRICTIONS AND EASEMENTS FOR
River Terrace SUBDIVISION
THIS
DECLARATION is made this _______ day of ___________________, 2007, by Bruce and Bruce, LLC,
("Declarant").
ARTICLE 1 ‑ GENERAL
Section 1.1: Common Interest Community: The name of the common
interest community created by this Declaration is "River Terrace".
All of the community is located in
Section 1.2: Property Affected: Declarant owns certain real property in
Section 1.3: Purpose of Declaration: This Declaration is executed and recorded
(a) to provide for the Property Owners Association to maintain non‑public
roads within the Property and to perform certain functions for the benefit of
Owners of land within the Property; (b) to define the duties, powers and rights
of the Property Owners Association; and, (c) to define certain duties, powers
and rights of Owners.
Section 1.4: Declaration: Declarant hereby declares that each lot,
parcel or portion of River Terrace Subdivision, is and shall be held, sold
conveyed, encumbered, hypothecated, leased, used, occupied and improved subject
to the following terms, covenants, conditions, easements and restrictions, all
of which are declared and agreed to be in furtherance of a general plan for the
protection, maintenance, subdivision, improvement and sale of the Property, and
to enhance the value, desirability and attractiveness of the Property. The
terms, covenants, conditions, easements and restrictions set forth herein: (i)
shall run with the land constituting the Property, and shall be binding upon
all persons having or acquiring any right, title or interest in the Property or
any lot, parcel or portion thereof; (ii) shall inure to the benefit of every
lot, parcel or portion of the Property and interest therein; (iii) shall inure
to the benefit of and be binding upon Declarant, Declarant's successor in
interest and each grantee or Owner and such grantee's or Owner's respective
successors in interest; and, (iv) may be enforced by Declarant, by any Owner or
such Owner's successors in interest, or by the Association as hereinafter
described.
ARTICLE 2 ‑ DEFINITIONS
Section 2.1: Architectural Control Committee: "Architectural Control Committee"
shall mean the committee created pursuant to Article 6.
Section 2.2: Articles: "Articles" shall mean the Articles
of Incorporation of the Association or other organizational or charter
documents of the Association.
Section 2.3: Assessments: "Assessments" shall mean those
payments required of Association Members, including Regular, Special and
Limited Assessments of the Association as further defined in this Declaration.
Section 2.4: Association: "Association" shall mean the River
Terrace Property Owners' Association.
Section 2.5: Association
Documents:
"Association documents" shall mean the various operative
documents of the Association, including: (a) the Articles of Incorporation of
the Association; (b) the Bylaws of the Association; and, (c) this Declaration,
and all Amendments to any of the aforementioned documents.
Section 2.6: Board
of Directors:
"Board of Directors" or "Board" shall mean the Board
of Directors of the Association.
Section 2.7: Bylaws: "Bylaws" shall mean the Bylaws of
the Association.
Section 2.8: Committee: "Committee" shall mean the
Architectural Control Committee.
Section 2.9: Community: "Community" as used herein shall
refer to the Existing Properties considered as a whole.
Section 2.10: Declarant: "Declarant" shall mean the Bruce and
Bruce, LLC, and any successor bulk purchaser of the subdivision lots whom is
designated in writing recorded with the Office of Recorder of Boise County,
Idaho by the Bruce and Bruce, LLC as a successor Declarant.
Section 2.11: Declaration: "Declaration" shall mean this
Declaration of Covenants.
Section 2.12: Existing Property: "Existing Property" shall mean the
real property described on Exhibit A. "The Property" or the “the Subdivision” shall mean the
Existing Property, together with any additional properties which are annexed to
the Existing Property pursuant to Section 8.2(A) herein. Either term shall
include any improvements now or hereafter made on such real property and
appurtenances and rights to such real property.
Section 2.13: Field Lots: "Field Lots" shall mean the
following Lots: Lots 1 through 5 and
Lots 19 through 29, as shown on the Plat.
Portions of the Field Lots are to be maintained pursuant to the terms of
Section 3.24 below.
Section 2.14: Improvements: "Improvements" shall include
buildings, outbuildings, roads driveways, parking areas, fences, screening
walls, retaining walls, stairs, decks, hedges, windbreaks, plantings, planted
trees and shrubs, poles, signs and all other structures or landscaping
improvements of every type and kind.
Section 2.15: Lot: "Lot" shall mean a parcel of land
subject to this Declaration which is identified as a
Section 2.16: Member: "Member" shall mean a member of the
Association, who must be an Owner. Membership in the Association shall be
appurtenant to and may not be severed from ownership of a
Section 2.17: Owner: The term "Owner" shall refer to
that person or entity or those persons or entities who hold the ownership
interest in any Lot as shown on the records of the County Recorder, Boise
County, Idaho; such term shall also include any person, persons, entity or
entities who succeed to such recorded interest by any means, including buyers
under executory contracts of sale and excluding those holding an interest
merely as security for the performance of an obligation.
Section 2.18: Person: "Person" shall mean a natural
person, a corporation, a partnership, or any other entity recognized as being
capable of owning real property under
Section 2.19: Plat: "Plat" shall mean the final plat,
filed of record with the Boise County Office of Recorder.
Section 2.20: Record, Recorded: "Record" and "Recorded"
shall mean, with respect to any documents, the recordation of said document in
the Office of the
Section 2.21: Rules and Regulations: "Rules and regulations" shall mean
the rules and regulations adopted by the Board of Directors concerning the
operation of the Association.
Section 2.22: Structure: "Structure" shall include
buildings, outbuildings, fences, walls, stairs, decks and poles.
ARTICLE 3 ‑ LAND USES AND IMPROVEMENTS
Section 3.1: Land Use and Living Units: All of the subject lots in the Existing
Property shall be used and occupied solely for single family residential,
private recreational, or agricultural purposes, as allowed herein. Pending sale
of Declarant's lots, and regarding lots otherwise owned which are placed under
Declarant's management, Declarant and Declarant's successors may engage in
agricultural activities on such lots, including but not limited to crop or hay
production, grazing and/or timber harvesting.
Nothing in these Covenants shall be viewed as limiting or prohibiting
Declarant's right to do so and to thereby, qualify agricultural or timber exemption
for
A. No buildings other than one detached
residence, a private garage for the use of the occupants of such residence, and
such other usual and appropriate outbuildings strictly incidental and
appurtenant to a private residence, shall be erected or maintained on any
parcel. No use whatsoever shall be made of any parcel herein other than as the
site and grounds of a private residence. The term "private residence"
as used herein is intended to exclude every form of multi‑family
dwelling, boarding or lodging house, and the like; and, any separate rental of
any separate dwelling unit shall be specifically determined to be multi-family
dwelling. This is not, however, intended
to exclude a guest house, a house for family members, or caretakers' quarters
for persons employed upon the premises, if such guest, family member’s, or
caretaker's housing is allowed by applicable Boise County Ordinances, and upon
approval of the Architectural Control Committee and septic system
qualification.
B. No structure of a temporary character, to
specifically include mobile homes, pre‑manufactured homes, modular homes,
basement, shack, garage, barn or other outbuilding shall be used on any lot at
any time as a residence, either temporarily or permanently except during the
period of construction as defined and limited by Section 6.8 and except as may
be permitted by this Section 3.1(B) below; nor shall any residential structure
be moved on to any lot from any other location, unless the prior written
approval of the Architectural Control Committee is obtained, such approval to
be obtained in the same manner as for new construction. Notwithstanding the foregoing, pre-manufactured
homes may be permitted if they do not appear to be the traditional manufactured
home generally rectangular in nature with a low pitched roof, in the sole
discretion of the Architectural Control Committee. Cedar home packages, log home packages, and
homes that are pre-built in a modular fashion, may be permitted if found to be
of appropriate design and character in the sole discretion of the Architectural
Control Committee.
C. Visitors and guests may park a camper,
motor home or trailer on a
D. A residence shall
contain no less than 1,200 square feet of heated floor area devoted to living
purposes (i.e. exclusive of roof or unroofed porches, terraces, basements or
garages); and, all construction must be of good quality and done in a good
workmanlike manner.
E. All buildings and
constructed Improvements shall be placed in a location to be approved by the
Architectural Committee. In determining
whether to approve the location of a building or other constructed Improvement,
the Architectural Control Committee shall consider the following:
1. Whether the construction
will cause a significant amount of erosion;
2. Whether the travel patterns
of wild animals will be negatively affected; and,
3. Whether the Construction
will adversely affect or degrade riparian areas.
In no case shall a building
be located within twenty (20) feet of any outer or exterior boundary of the
Property, or within twenty (20) feet of any road, or within ten (10) feet of
any other lot line, whichever is greater.
F. No Improvements which will be visible above ground or which will ultimately affect the
visibility of any above ground improvement shall be built, erected, placed or
materially altered on or removed from the Property unless and until the
building plans, specification, and plot plan or other appropriate plans and
specifications have been reviewed in advance by the Architectural Committee,
and the same have been approved in writing. The procedures for review are as
more fully set forth in Article 6. The review and approval or disapproval may
be based upon the following factors: size, height, design and style elements,
mass and form, topography, setbacks, finished ground elevations, architectural
symmetry, drainage, color, materials, physical or aesthetic impacts on other
properties, artistic conformity to the terrain and other improvements on the
Property, and any and all other factors which the Architectural Committee, in
its reasonable discretion, deems relevant. Said requirements as to the approval
of the architectural design shall apply only to the exterior appearance of the
improvements. This Declaration is not
intended to serve as authority for the Architectural Committee to control the
interior layout or design of residential structures except to the extent
incidentally necessitated by use, size and height restrictions.
G. Detached garages,
guest quarters, barns, outbuildings and storage sheds shall be allowed if in
conformity with the provisions of this Declaration and the applicable
ordinances of
H. All access
driveways shall have a wearing surface approved by the Architectural Committee
and shall be graded to assure proper drainage.
I. Each residential structure shall have
a street number discreetly placed at or near the street entrance to the
J. Exterior lighting, including flood
lighting shall be part of the architectural concept of the improvements on a
K. The maximum height of any building shall
be in compliance with the applicable Boise County land use or zoning
ordinances, but shall not exceed thirty‑five (35) feet in height,
measured from finished grade, adjacent to the highest point of any roofline.
L. Roofs shall be required to be of pitched
design and shall be covered with nonflammable materials (e.g. non‑reflective
metal, tile, fiberglass shingles, fire retardant wood shingles or shakes).
M. The color of the exterior surfaces of any
structure shall be subject to approval by the Architectural Control
Committee. Natural or earth tones
(excluding trim) shall be encouraged. No
reflective roofing material may be exposed on any lot. Fire resistant construction is to be
encouraged, such as rock or brick, concrete siding, or a manufactured product,
such as wood manufactured siding. Prior to construction, samples of such
materials must be approved by the Architectural Control Committee. No metal
structures shall be allowed.
N. TV Satellite dishes (larger than 24
inches), antennas, or other devices for the transmission or reception of
television, radio or electric signals or any other form of electromagnetic
radiation, should be screened from view of the road and other homes, if
possible, and be first approved by the Architectural Control Committee.
O. Prior
to beginning construction, the Owner shall provide the Architectural Control
Committee with the name of the contractor who will build the project.
P. The setback of any structure shall be in compliance with the
applicable
Section
3.2: In Home Businesses: While it is not the
intent of the Association to create or necessarily encourage commercial
activity, it is not the Association's intent to prohibit the limited use of a
dwelling unit for the purpose of an "in home business," such as an in‑home
office, profession, or other limited activity that would be conducted for
financial gain. Businesses to which
clients or customers come and go regularly shall not qualify as an in‑home
business; and, any such activity shall be compatible with the aesthetics and
appearance of surrounding lots and the ability of the owners of those lots to
quietly enjoy their properties. Any such activities shall require the prior
review and consent of the Association, to establish compliance with the terms
of this Section.
Section
3.3: Storage of Building Materials: No building materials
shall be stored on any
Section 3.4: Storage of Vehicles and Equipment: No snowmobiles, boats, boat trailers,
travel trailers, camper trailer, motor homes, automotive campers, farm
equipment, commercial cars, trucks or vans, buses or other portable vehicles,
other than duly registered and licensed non‑commercial cars, passenger
vans, and light duty trucks, shall be parked in front of any dwelling at any
time during three (3) consecutive days. No
automobiles, trucks, motorcycles or other vehicle commonly used for personal
transportation shall be parked in front of any dwelling at any time during seven
(7) consecutive days. Any such vehicle
parked for a period exceeding the number of days specified in this section must
be concealed from sight of any traffic along Subdivision roads by appropriate
fencing, enclosure, or other year round screening, and, if such is intended to be of a permanent nature, said property shall be
stored in a covered building of
permanent design, with appropriate screening from the Subdivision roads and
neighbors if not enclosed. Any screened
area must be located to the side or rear yard of a dwelling.
Notwithstanding
the foregoing, commercial vehicles may not regularly be parked forward of any
dwelling on a daily other continuing basis. (It is the intent of this provision
to prohibit owners or other occupants from regularly parking commercial
vehicles on Lots. River Terrace
Subdivision is a residential subdivision and Owner or occupant commercial
vehicles should garaged or otherwise concealed when parked on a
Section
3.5: Parking: Parking shall be
accommodated on Lots with no Owner parking of vehicles allowed on private or
public streets. The improvements on each
Section
3.6: Wild Game: Nothing shall be done
or kept on any Lot which will inhibit, interfere with, or endanger the wild
game which enter onto any
Section
3.7: Animals: All
animals kept by a Lot Owner must be fenced within the boundaries of the
No animal, bird, insect, pigeon, poultry or livestock shall be
kept by a Lot Owner unless the presence of such creature does not constitute a
nuisance. This Section does not apply to the keeping of domesticated dogs,
cats, and other household pets, for non‑commercial purposes, which do not
unreasonably bother or constitute a nuisance to others. Without limiting the
generality of the foregoing, consistent and/or chronic barking by dogs shall be
considered a nuisance.
The following, additional restrictions, also apply:
A. Large
Animals: Large animals, including
horses, llamas, sheep, cattle and comparable sized animals, shall be allowed if they are being raised as part
of a 4-H or FFA or similar project (collectively “Farm Project”), with the
prior approval of the Architectural Control Committee. The Architectural Control Committee shall
have the right to place reasonable restrictions on the amount of time an animal
may be allowed to remain on a
1. There shall be a maximum of two large animals kept on any
2. Large animals shall be pastured in an area and amount of land
to be approved by the Architectural Control Committee.
3. The pasture must be fenced to hold large animals, and cannot
be constructed of barbed wire or chain link.
Additionally, there shall be no white fencing, posts, or other fencing
materials, in whole or in part.
Allowable materials for fencing include split rail, post and pole,
barbless wire, and as otherwise approved by the Architectural Control Committee.
4. In determining whether to approve the
location of a pasture area and the type of fencing for the enclosure, the
Architectural Control Committee shall consider the steepness of the area with
an eye toward erosion control, whether the fencing of the pasture will limit
game corridors, whether the requested fencing material could be a danger to
wild game, and other Owner's private enjoyment of their property.
5. Should any large animal on a Lot become
a nuisance, in the discretion of the Architectural Control Committee, the
Architectural Control Committee shall have the right to require that the
factors causing the nuisance be removed, or may require that the animal be
removed from the Lot.
B. Other Animals:
All animals kept outside must be restrained by reason of an enclosure
(i.e. not with the use of a leash) so that they do not leave the property. The
construction of dog runs or other pet enclosures shall be subject to
Architectural Committee approval, shall be appropriately screened, and shall be
maintained in a sanitary condition. Dog runs or other pet enclosures shall not
be placed in any front yard of a building
Dogs shall be kept on a
leash, curbed, and otherwise controlled at all times when such animal is off
the premises of its owner.
Section 3.8: Fences: No fence, wall or
hedge higher than four (4) feet, six (6) inches shall be erected or maintained
on any Lot, save and except, however, with the previous written consent of all
adjoining Lot Owners and the Architectural Control Committee. The Architectural
Control Committee shall have complete control over the allowance of a fence
over the four foot six inch height limit, and shall consider the natural travel
patterns of the wild game in the area when making such decisions. All such fences and walls shall be
constructed of a material consistent throughout the Subdivision, such as split
rail, cedar or pole. No fence, except
those mentioned in Section 3.7 above, may be constructed with wire or
metal. No fence shall be a solid fence,
including but not limited to a stone fence or wall.
Prior to installation of any fencing adjacent to any road in
the Property, the Owner of the Lot proposed to be fenced shall have the area
adjacent to the road surveyed to insure that the fence is not constructed
within the road right of way.
All exterior, interior or cross fencing shall first be
approved by the Architectural Control Committee
Section
3.9: Rebuilding or Restoration: Any dwelling unit or other improvement
which may be destroyed in whole or in part must be rebuilt, or all debris must
be removed and the Lot restored to a sightly condition. Such rebuilding or
restoration shall be completed within reasonable promptness and in any event
within two (2) years from the time the damage occurred.
Section
3.10: Drainage: There
shall be no interference with the established drainage pattern over any portion
of the Property, unless an adequate alternative provision is made for proper
drainage and is first approved in writing by the Architectural Committee. For
the purposes hereof, "established" drainage is defined as the system
of drainage, whether natural or otherwise, which exists at the time the overall
grading of any portion of the Property is completed by Declarant, or that
drainage which is shown on any plans approved by the Architectural Committee.
Section
3.11: Utilities:
A. Electrical: The Declarant shall provide underground electrical
power service to the Community as a whole. The purchaser and owner of each
parcel agrees to use the service so provided. Private electrical generating
systems shall not be permitted for domestic electrical service, except as a
backup system in case of primary electrical service failure. However use of other alternative energy
sources, such as solar energy, may be presented to the Architectural Control
Committee. All electrical power lines,
telephone lines and other utility service lines shall be underground from each
individual parcel line to the point of use on each parcel. Overhead lines and
utility poles shall not be permitted, except during the construction phase.
B. Water: Water for each
C. Septic: Sewage disposal for each
Section 3.12: Obstructions on Common Easements: No
gates or obstructions shall be placed upon or block any private road shown on
the Plat unless the private road terminates on the Lot Owner's property, and
the gate or obstruction is placed within the Lot Owner's property. Under no circumstances shall any acts be
taken by any Lot Owner which unreasonably degrade or impair the rights
possessed by any third‑parties to traverse any roads or easements on or
across the Property.
Section
3.13: All Terrain Vehicles: All
terrain vehicles, snow machines, motorcycles and other similar motorized
vehicles may be operated within the Subdivision only for the following
purposes: (a) for use in agricultural
activities; (b) direct ingress and egress from the owner's lot to areas outside
of the Subdivision; or, (c) for purposes of performing maintenance or
improvements on a
Section 3.14: Prohibited
A. There shall be no mining, smelting or
milling of ores or similar mineral operations within the Community.
B. No outdoor privy or any common cesspool shall be installed on
any lot at any time.
C. Nothing shall be done or kept on any Lot
by any person which will increase the rate of insurance on any other
D. No excavation shall be made on any Lot
except as is necessary for the erection of approved structures, in which case the
same shall be properly filled within thirty (30) days of the completion of the
underground work.
E. No hunting or discharging of firearms within the Subdivision.
Section
3.15: Building and Grounds Conditions: Each
Owner shall maintain the exterior of his or her dwelling unit and all other
improvements in good condition and shall cause them to be repaired as the
affects of damage or deterioration become apparent. Each Owner shall, to the
best of his or her ability, maintain his or her
In the event that any Owner shall permit any
improvement, including trees and landscaping, which is the responsibility of
such Owner to maintain, to fall into disrepair so as to create a dangerous,
unsafe, unsightly or unattractive condition, or damage to property or
facilities on or adjoining their Lot, the Board, upon fifteen (15) days prior
written notice to the Owner of such property, shall have the right to correct
such condition, and to enter upon such Owner's Lot for the purpose of doing so,
and such Owner shall promptly reimburse the Association for the cost thereof.
Such cost shall be an Assessment and shall create a lien enforceable in the
same manner as other Assessments set forth in Article 9 of this Declaration.
The Owner of the offending property shall be personally liable, and such
Owner's property may be subject to a lien for all costs and expenses incurred
by the Association in taking such corrective acts, plus all costs incurred in
collecting the amounts due. Each Owner shall pay all amounts due for such work
within ten (10) days after receipt of written demand therefore, or the amounts
may, at the option of the Board, be added to the amounts payable by such Owner
as Regular Assessments.
Section
3.16: Landscaping: The
owner of each Lot, upon erecting a single family residence or other approved
structure thereon, shall provide and maintain minimal natural landscaping on
the rear and side portions of the lot as well as the front lot area, subject to
the preceding paragraph. In the event of neglect to properly maintain and care
for any such lot, or to provide for such minimal landscaping, the Architectural
Control Committee shall have the right, but shall have no obligation, to have
the necessary work performed on any parcel to keep it from presenting an
unsightly appearance, the charges for work so performed to be billed to, and
paid for, by the Owner of such Lot and become a lien upon the property as
specified in Section 3.15 above.
All landscaping, exterior structure surfaces,
dimensions, and location on the
Section
3.17: Refuse: No unsightly objects
or materials, including but not limited to ashes, trash, rubbish, garbage,
glass or shrub clippings, scrap material or other refuse, or receptacles or
containers therefor, shall be stored, accumulated or deposited outside or so as
to be visible from any neighboring property or adjoining street except during
refuse collections.
Section
3.18: Burning: No
burning of any household garbage, trash or other noxious refuse shall be
permitted on any lot unless in a contained structure (Note: extreme caution
during fire season). All burning shall take place only with proper notification
to the local Fire Department and any other agency or authority with
jurisdiction. The policies, practices and instructions of such entity shall be
strictly followed.
Section
3.19: Nuisances: No noxious or
offensive activity shall be carried on upon any
Section
3.20: Inoperative Vehicles: No unused, stripped‑down,
partially wrecked or otherwise inoperative motor vehicles or parts thereof
shall be permitted to be parked on any common easement or road within the
Property, nor shall such vehicles be allowed to be parked on any Lot in such
manner as to be visible at ground level from any neighboring property or
street, unless fully screened in a manner approved in advance by the
Architectural Control Committee.
Section 3.21: Signs: The only signs
permitted on any
A. One sign of customary size for identification of the occupant
and the address of any dwelling;
B. Signs for sale and administration purposes installed by the
Declarant during development;
C. Standard Real Estate signs advertising a lot for sale, not to
exceed 9 square feet in surface size;
D. Signs as may be necessary to advise of rules and regulations
or to caution or warn of danger; and,
E. Such signs as may be required by law.
Section 3.22: No Further Subdivision: No Lot
may be further subdivided, except as
provided in Section 8.2 with regard to Declarant’s rights.
Section 3.23: Irrigation and Fire Suppression: Declarant
owns certain water rights in the
A. Fire
Suppression Plan. The
fire suppression plan is attached at EXHIBIT
C. The Board may adopt such additional
Rules and Regulations in this regard as it deems adviseable.
Section
3.24: Maintenance of Field Lots: All
Field Lots must be periodically mowed to maintain a kept appearance. It is anticipated that if a Field Lot is not
irrigated, that it would need to be be mowed once in the summer, and for Field
Lots that are irrigated, a more frequent mowing will be necessary. This obligation shall be undertaken by the
Owner of the Field Lot. If in, the
reasonable judgment of the Architectural Control Committee, the owner is not
performing the obligation adequately, the Assocation may perform the obligation
after providing at least 10 business days’ prior notice to the owner. If the Association performs the obligation,
the cost of doing so will be assessed to the Owner of the Field Lot as a Limited
Assessment.
Section
3.25: River Access: Declarant will grant
an easement across property owned by Declarant to allow for owners to access
the
Section
3.26: Exemption of Declarant: Nothing
contained herein shall limit the right of Declarant to complete excavation,
grading and construction of improvements to and on any portion of the Property
owned by Declarant or to construct such additional improvements as Declarant
deems advisable in the course of development of the Property, so long as any
ARTICLE 4 ‑ ASSOCIATION OPERATION
Section 4.1: Organization: The Association
(Association) shall be initially organized by Declarant as an
Section 4.2: Membership: Each Owner shall be a member of the
Association. An Owner shall automatically be a holder of the membership
appurtenant to such Owner's Lot, and the membership shall automatically pass
with fee simple title to the
Section 4.3: Classes of Membership/Voting Rights: The Association shall
have one (1) class of membership, which shall be a voting membership.
Section 4.4: No
Fractional Votes, No Severance of Voting Rights: Fractional votes shall not be allowed. In
the event that joint Lot Owners are unable to agree among themselves as to how
their vote or votes should be cast, they shall lose their right to vote on the
matter being put to a vote. When an Owner casts a vote, it will thereafter be
presumed conclusively for all purposes that such Owner was acting with
authority and consent of all joint Owners of the
Section 4.5: Board of Directors and Officers: The affairs of the
Association shall be conducted and managed by the Board of Directors
("Board") and such officers as the Board may elect or appoint, in
accordance with the Articles and By-Laws, as the same may be amended from time
to time. The Board of Directors shall be
elected in accordance with the provisions set forth in the Association By-Laws.
Section
4.6: Declarant's Transfer of Control
of Association: Declarant's right to control the Association
and the selection of a majority of its Board of Directors shall terminate upon
the occurrence of the first of the
following events:
A. By
written notice from the Declarant to the President or Secretary of the
Association of the Declarant's intention to terminate its right to appoint the
majority of the members of the Board of Directors; or
B. Upon
that date which is sixty (60) days after one hundred percent (100%) of all lots
within the Property (including any property which is annexed into the Property
pursuant to the terms of this Declaration) have been sold to persons other than
Declarant.
Such
date is herein referred to as "the Transfer of Control Date”.
ARTICLE 5 - DUTIES AND POWERS OF THE ASSOCIATION
Section 5.1: General Duties and Powers of Association: The Association has been formed to further
the common interest of the Members. The Association shall have the duties and
powers to take such action as is necessary to perform its obligations under the
Association documents.
Section
5.2: Powers of the Association: The Association shall have all the powers of
a corporation organized under the non‑profit corporation laws of the
State of
A. Assessments: The power to levy Assessments on any Owner or
any portion of the Property and to force payment of such Assessments, all in
accordance with the provisions of this Declaration.
B. Right
of Enforcement: The power and
authority from time to time in its own name, on its own behalf, or on behalf of
any Owner who consents thereto, to commence and maintain actions and suits to
restrain and enjoin any breach or threatened breach of this Declaration or the
Articles or the By-Laws, including the Association Rules adopted pursuant to
this Declaration, and to enforce by injunction or otherwise, all provisions
hereof.
C. Delegation
of Powers: The authority to delegate
its powers and duties to committees, officers, employees, or to any person,
firm or corporation. Neither the Association nor the members of its Board shall
be liable for any omission or improper exercise by any person or entity of any
such duty or power so delegated.
D. Association
Rules: The power to adopt, amend and
repeal by majority vote of the Board such
rules and regulations as the Association deems reasonable. Provided, however,
that any Association Rules shall apply equally to all Owners and shall not be
inconsistent with this Declaration, the Articles or By-Laws. A copy of the
Association Rules as they may from time to time be adopted, amended or
repealed, shall be mailed or otherwise delivered to each Owner. Upon such
mailing or delivery, the Association Rules shall have the same force and effect
as if they were set forth in and were a part of this Declaration. In the event
of any conflict between such Association Rules and any provisions of this
Declaration, or the Articles or By-Laws, the provisions of the Association
Rules shall be deemed to be superseded by the provisions of this Declaration,
the Articles or the By-Laws to the extent of any such inconsistency.
E. Emergency
Powers: The power, exercised by the
Association or by any person authorized by it, to enter upon any property (but
not inside any building constructed thereon) in the event of any emergency involving
illness or potential danger to life or property or when necessary in connection
with any maintenance of construction for which the Association is responsible.
Such entry shall be made with as little inconvenience to the Owner as
practicable, and any damage caused thereby shall be repaired by the
Association.
F. Power
to Engage Employees, Agents and Consultants: The Association shall have the power to hire
and discharge employees and agents (except as otherwise provided in management
contracts) and to retain in paper such legal and accounting services as may be
necessary or desirable in connection with the performance of any duties or the
exercise of any powers of the Association under the Association documents.
Section 5.3 Duties of the Association: In addition to duties
necessary and proper to carry out the powers delegated to the Association by
this Declaration, and the Articles and By-Laws without limiting the generality
thereof, the Association or its agent, if any, shall have the authority and the
obligation to conduct all business affairs of the Association and to perform,
without limitation, each of the following duties:
A. Insurance: Obtain insurance from reputable insurance
companies authorized to do business in the State of
B. Rule
Making: Make, establish, promulgate,
amend and repeal such Association Rules as the Board shall deem advisable.
C. Architectural
Control Committee: Appoint and
remove members of the Architectural Committee, subject to the provisions of
this Declaration. The Board shall also
have discretion to itself serve as the Architectural Control Committee, in lieu
of appointing an independent Committee.
D. Duty
to Accept Property and Facilities Transferred By Declarant: The Association shall accept title to any
property, including without limitation, any improvements thereon, any easement
or other right, and personal property transferred to the Association by the
Declarant or by any third party with Declarant's permission, and equipment
related thereto, together with the responsibility to perform any and all
Association functions associated therewith, provided that such property and
functions are not inconsistent with the terms of this Declaration.
E. Duty
to Manage and Care for Roads: The
Association shall manage, operate, care for, and maintain and repair all non‑public,
common easement and private roads within the Property which are identified on
the recorded plat of the Property and which are necessary to provide access to
the Lots within the Property. The
Association shall have the discretion to not plow snow on subdivision roads, or
portions thereof, which service unimproved Lots.
ARTICLE 6 ‑ ARCHITECTURAL CONTROL
Section 6.1: Purpose and Theme of Controls: It is the desire of
the Declarant that design controls be implemented for all building improvements
to insure that the overall excellence of River Terrace Subdivision shall be
maintained throughout its development. To this end, an Architectural Control
Committee (hereinafter referred to as the "Committee") will be
established pursuant to Section 6.2 of this Article 6 to guide the site
development and design of all structures and to aid the residential home
builders to discover the opportunities and limitations of their building sites.
All of the residential improvements will be encouraged to offer a diversity of
types, sizes and styles of architecture and yet will be required to conform to
a total visual homogeneity.
The
discretion hereinafter invested in the Architectural Committee will be
exercised towards the end that high standards of workmanship and quality of
materials will be maintained throughout the Development and that all
improvements will be in harmony with and complement the natural landscape,
topography and flora.
Section 6.2: Architectural
Control Committee: No building,
fence, wall, structure or other improvement shall be commenced, erected,
altered, placed or maintained upon any lot nor shall any exterior addition to
or change or alteration therein be made, until plans and specifications showing
the nature, kind, shape, height, materials and location of the same have been
submitted to and approved in writing by the Architectural Control Committee,
which shall be composed initially of the Board of Directors. If any member of
the Committee resigns or is unable to act, the remaining members shall appoint
his or her successor. Pending such appointment, the remaining members shall
discharge the functions of the Committee. The Committee shall be comprised of
no less than three (3) nor more than five (5) members, who shall be appointed
annually by the Board. A majority of
the members shall constitute a quorum. Meetings may be held by telephone or
other electronic conference. The Committee shall designate a Chairperson. The
Board may elect to act as the Committee.
Section 6.3: Documentation
Required for Architectural Approval:
No structure or improvement shall be considered or approved by the
Committee until the parcel owner has submitted the following information to the
Committee:
A. Two (2) sets of plans and specifications
for the proposed improvements;
B. A
site plan of the lot showing the location of all existing and proposed
improvements, and which also identifies the location, size and type of all
trees proposed to be removed;
C. Drawings showing all exterior building
elevations;
D. A
schedule of exterior materials and colors to be used on the proposed
improvement; and,
E. The owner's proposed construction
schedule.
Section
6.4: Basis for Approval or
Disapproval:
The Committee shall give its approval for the requested improvement only
if:
A. The
owner or applicant shall have strictly complied with the requirements of
Section 6.3 hereof;
B. The
Committee finds that the plans and specifications conform to the requirements
of Article 3 of this Declaration, and furthermore that the owner or applicant
is in compliance with all of the provisions and requirements of this
Declaration in its entirety; and,
C. The
Committee, in its sole and reasonable discretion, finds that the proposed
improvement is compatible with the theme of this Development and with the
purposes and intent of this Declaration as a whole as to quality of workmanship
and materials, as to harmony of external design with existing structures, and
as to location with respect to topography and finished grade elevations.
The Committee
may waive submission of plans and specifications for approval where minor
construction or a minor addition to an existing structure is involved which
does not appear to materially affect the Development.
Section 6.5: Form
of Approval or Disapproval:
A. All
approvals given under Section 6.4 shall be in writing; provided, however, that
as to any request for approval which has not been rejected within thirty (30)
days from the date of submission thereof to the Committee, such approval will
not be required and the provisions of this Section will be deemed to have been
fully complied with.
B. In
disapproving any plans and specifications or other documents the Committee
shall specify, in writing, the deficiencies it has relied upon in rendering
such disapproval and shall give the applicant the right and opportunity to
resubmit his plans and specifications or other documents in amended form. The
Committee shall thereafter reconsider such documents as if they were being
submitted for the first time.
C. One
set of plans and specifications as finally approved or disapproved shall be
retained by the Committee as a permanent record.
D. Nothing
contained in this Section shall be deemed to relieve the owner of any parcel
from complying with all of the provisions of this Declaration or with the
provisions of all applicable building codes, zoning regulations, or other
governmental regulations or laws governing the lands within this development
Section 6.6: Arbitration: In the event an owner
or applicant disputes the decision of the Committee, said dispute shall be
decided by arbitration in accordance with the Construction Industry Arbitration
Rules of the American Arbitration Association then in effect unless the
Committee and the owner or applicant mutually agree otherwise. The Arbitrator
shall be governed and guided in their decision by this Declaration. If so, the
award rendered by the Arbitrator
shall be final, non-appealable and binding upon the parties, to the same extent
as if it had been finally rendered by a court of proper jurisdiction. The owner
or applicant shall file demand for arbitration with the Committee and with the
American Arbitration Association. Such demand shall be made within a reasonable
time after the dispute in question has arisen, and in no event shall it be made
after the date when institution of legal or equitable proceedings on such
dispute would be barred by the applicable statute of limitations. The cost of arbitration shall be divided
equally between the parties, unless the Arbitrator finds that one party has
prevailed in arbitration. In such case,
the non-prevailing party shall pay the cost of arbitration, which shall be
limited to the Arbitrator’s fee.
Section 6.7: Proceeding with Work: Upon receipt of
approval from the Committee pursuant to Section 6.5 above, the owner shall, as
soon as practicable, satisfy all the conditions thereof and diligently proceed
with the commencement and completion of all construction, reconstruction,
refinishing, alterations and excavations authorized by such approval, said
commencement to be in all cases within one (1) year from the date of such
approval. If the Owner shall fail to comply with this Section, the approval
given pursuant to Section 6.5 shall be deemed revoked, unless the Committee
upon written request of the Owner made prior to the expiration of said one (1)
year period extends the time for such commencement. No such extensions shall be
granted except upon a finding by the Committee that there has been no change in
the circumstances upon which the original approval was granted.
Section 6.8: Completion of Construction: The Owner shall
complete all exterior elements of the construction within one (1) year after
the commencement of construction thereof; except, and only for so long, as such
completion is rendered impossible or would result in great hardship to the
owner due to strikes, fires, acts of God, unusual wintertime conditions, actual
inability of the owner to procure deliveries of necessary material, or by other
forces or persons beyond the control of the Owner; and, except as otherwise
permitted by the Architectural Control Committee in writing. Financial
inability of the Owner or his contractor to secure labor or materials or to
discharge liens or attachments shall not be deemed a cause beyond his control.
For the purposes of this Section 6.8, "Commencement of Construction"
for new improvements is defined as the obtaining of the necessary building
permits and the excavation of earth for a foundation, and for all other
improvements is defined as the undertaking of any visible exterior work. Under no circumstances shall the aforesaid
one (1) year completion deadline be extended for more than one (1) additional
year, except upon a vote of a majority of the members who are present or
represented by proxy at a duly noticed membership meeting at which a quorum is
present.
Section 6.9: Failure
to Complete Work: Any
construction which is not completed in a good and workmanlike mariner, or in
substantial conformity to the plans and specifications approved for it by the
Committee, within the time limits provided by this Article, and where such
failure is not excused by the provisions hereof, shall be deemed a nuisance,
and the Board shall have the right, at its sole option, to enter upon the
premises and to have such incomplete construction removed or to carry such
construction forward to completion. In
such case, the costs and expenses incurred in such removal or completion shall
constitute a lien upon the property under the Mechanic's Lien Law of the State
of
Section 6.10: Variances: Upon written request from an Owner, the Board
may grant a variance from any of the provisions of Article 3, except those
limiting land use in the Subdivision to single-family residential uses, as
follows:
A. The request shall be submitted to each
Board member and must explain the precise nature of and reasons for the
requested variance.
B. At least fifteen (15) days prior to the
Board’s review of the variance request, at
the Applicant’s expense, written notice of the request and the time and
place at which the Board will consider the request shall be mailed, via
certified mail, to all record Owners of Lots in the Subdivision;
C. The Board’s review of the request shall
be open to all Owners, who shall be entitled to comment;
D. The request shall be denied unless the
Applicant establishes compelling reasons for the request. Neither the cost of compliance with these
Covenants, nor the convenience of the Applicant shall in and of themselves be
grounds for a variance;
E. If a Committee review of
building/improvement plans involves a variance request, then the thirty (30)
day time frame contained in Section 6.5 A. above shall be extended to sixty
(60) days; and,
F. The decision of the Board can be
overruled or modified only by a vote of
sixty-seven percent (67%) of those Owners who are present or represented by
proxy at a meeting of the membership, scheduled for the purpose of considering
such decision, at which a quorum is present.
Section 6.11: Enforcement: The provisions of this
Declaration may be enforced by Declarant, by a Successor Declarant, by the
Board, or by any Lot Owner. The
prevailing party in such enforcement action shall be entitled to recover
his/her fees under Section 10.8. In addition, to specific enforcement
judicially, the Board shall be entitled to impose a fine for violations of this
Declaration of not to exceed $500.00 per incident or $50.00 per day, in the
case of a continuing violation. The fine
may be assessed only against the Owner, and only if the violator is the Owner
or a member of the Owner’s family or a guest, invitee, lessee, contractor,
subcontractor, employee or agent of the Owner.
In the case of a continuing violation, the fine may not be assessed
unless the Owner has failed to abate the violation within the time allowed
therefor by the Board in written notice to the Owner. In the case of a single incident, the fine
may not be assessed unless the Owner has received at least one prior written
notice from the Board that the violation may subject the Owner to fine(s). Fines imposed pursuant to this Section may be collected as provided
in Section 9.12 A and B below.
Non-payment of assessments shall not subject an Owner to fines; rather,
the remedy therefore shall be as provided in Article 9, below.
ARTICLE 7 – ROADS / EASEMENTS
Section
7.1: Roads: With
the exception of the
Section
7.2: Declarant's Reservations:
A. Declarant hereby creates and reserves to
itself until that date which is twenty (20) years after Declarant has sold the
last Lot in the Property (including any property annexed hereto pursuant to the
Declaration) to an Owner other than the Declarant, and thereafter, to the
Association: perpetual, alienable, divisible and releasable easements and the
right from time‑to‑time to grant such easements to others over,
under, in and across all private roads conveyed or to be conveyed pursuant to
Section 7.1, or otherwise by deed or plat map, for use of all or part of such
areas for lines for transmission of electric current or impulses or electronic
signals, for heat and fuel lines, for water and waste water lines, for utility
lines, for drainage and for other similar or dis-similar facilities and
purposes, and for any one or more such purposes.
B. Declarant reserves a twelve foot (12’) easement along the
outer or exterior boundary of the Property for utility purposes. In addition,
Declarant reserves a easement ten-feet (10’) in width centered on all interior
lot lines for utility purposes, and twenty feet (20’) in width centered on all
interior lot lines for construction of utilities during the construction period.
C. If any utility or quasi‑utility
company furnishing a service covered by the easements created herein requests a
specific easement by separate recordable document, Declarant reserves and is
hereby given the right and authority to grant such easement. The Association
shall succeed to such right and authority upon conveyance by Declarant of the
last
Section
7.3: Easements to Additional Parties on Roads:
Declarant hereby creates and
reserves to itself until Declarant twenty years after has sold the last Lot in
the Property (including any property annexed hereto pursuant to the
Declaration) the right to grant additional easements in the private roads shown
on the Plat, even after transfer of the same to the Association, to provide access
to additional properties in the vicinity of the Property, whether or not said
properties are annexed into River Terrace Subdivision, and whether or not
Declarant is the owner of said properties.
Said easements may also provide access to additional developments. Upon the granting of any such easement, the
grantee shall be required to comply with the covenants and restrictions herein
for the use, maintenance and repair of the private roads, and shall share in
the cost of maintenance and repair for their proportionate use of the private
roads. No permission shall be necessary
from Lot Owners before this right may be exercised.
Section
7.4: Utility Easements: Declarant reserves the right to construct utilities and irrigation
facilities within any Utility Easement, any road easeement or right of way
which is depicted or described on the Plat, and to grant easements for the
repair and maintenance of any such utility or irrigation facility. No building Improvements shall be constructed
within any Utility Easement other than utility or irrigation-related
improvements. All Utility Easements are
reserved in perpetuity.
Section
7.5: Driveway Easements:
(a) Following are the
driveway easements shown on the Plat:
(i) Lots 7 and 8. Owners of both Lots 7 and 8 shall have the
right to use this Driveway Easement.
(ii) Lots 12 and 13. Owners of both Lots 12 and 13shall have the
right to use this Driveway Easement.
(iii) Lots 14 and 15. Owners of both Lots 14 and 158 shall have the
right to use this Driveway Easement.
(iii) Lots 16 and 17. Owners of both Lots 16 and 17shall have the
right to use this Driveway Easement.
(b) Users of Driveway
Easements must maintain them at their own expense, in good condition. All Users of a Driveway Easement shall share
equally in the cost of maintenance of a Driveway Easement, beginning with that
date upon which a Building Permit is issued for the construction of a home on a
(c) If one of the users of a
Driveway Easement initially constructs a driveway within the easement, the
other user of the Driveway shall equitably share in the cost of such
construction not later than the time when the other user begins construction of
a home; provided, that in general if the other user begins construction of a
home later than 5 years after the construction of the driveway, no cost sharing
shall be required.
(d) Any damage to a Driveway
Easement incurred due to construction shall be repaired at the expense of the
Owner doing the construction.
(e) Users of a Driveway
Easement who are unable to obtain reimbursement for expenses of maintenance
from another user of the Driveway Easement shall have the right to request that
the Association assess a Limited Assessment against the nonpaying Owner, which
the Association shall assess in its discretion.
Section 7.6: Field
ARTICLE 8 ‑ DECLARANT'S DEVELOPMENT
RIGHTS, SPECIAL RIGHTS AND RESERVATIONS
Section 8.1: Period of Declarant's Rights and
Reservations: Except where a different period of duration is specified,
Declarant shall have, retain and reserve certain rights as hereinafter set
forth with respect to the Association and the Association properties for a
period of ten (10) years after the date of this Declaration is recorded with
the office of Recorder of Boise County, Idaho, or until such earlier date when
Declarant ceases to own any of the Property, including Property which is
annexed hereto pursuant to the terms of this Declaration. The rights and
reservations hereinafter set forth shall be deemed accepted and reserved in
each conveyance of the Property by Declarant, whether or not specifically
stated therein, and in each deed or other instrument by which any property
within the Property is conveyed by Declarant. The rights, reservations and
easement hereinafter set forth shall be prior and superior to any other
provisions of the Association documents and may not, without Declarant's
written consent, be modified, amended or rescinded or affected by any amendment
of the Association documents. Declarant's consent to any one such amendment
shall not be construed as a consent to any other amendment. Declarant's said
rights shall survive the Transfer of Control Date, as defined at Section 4.6,
if it occurs prior to the aforesaid period of Declarant's Special Rights.
Section
8.2: Declarant's Development Rights: For
the period stated in Section 8.1, Declarant shall have the following
development rights:
A. Declarant may add or annex any real
property owned by Declarant to the Existing Property. The additions authorized
under this Section shall be made by filing of record a Supplementary
Declaration of Protective Covenants with respect to the additional property
which shall extend the scheme of the covenants and restrictions of this
Declaration to such property. Such Supplementary Declaration may contain such
complementary additions and modifications of the covenants and restrictions
contained in this Declaration as may be necessary to reflect the different
character, if any, of the added properties and as not inconsistent with the
scheme of this Declaration. Upon recordation of such Supplementary Declaration,
the additions authorized under this Section shall thereafter be treated in all
respects as Existing Properties. No permission shall be necessary from the
owners of Existing Property before the Declarant may bring such lands within
the scheme of this Declaration.
Such annexation(s) and Supplemental Declaration(s) may alter
the rights and responsibilities of the Association and owners in the following
ways:
1. Additional owners may be added to the Association, thereby diluting the
relative effect of an Existing Property Owner's vote;
2. Additional private roads may be conveyed to the Association, thereby
affecting the Association's road maintenance and repair budget;
3. Additional common
areas and amenities may be created and, upon acceptance by the Association, may
be either conveyed, leased or made available to the Association, in which case
the Association may incur expenses related to upkeep, improvement and/or
maintenance; and,
4. The Association may
incur other expenses as a result of such annexation.
B. Declarant may create additional Lots within the Property;
C. Declarant may plat any
D. Declarant may withdraw any portion of the
real estate contained within the Existing Property, as described in Exhibit A attached hereto, from the Property and release such withdrawn
property from the provisions of this Declaration.
Section
8.3: Special Declarant Rights: For the period stated in Section 8.1, and
as more particularly set forth in this Article 8, or elsewhere in this
Declaration, Declarant shall have the following special Declarant rights:
A. To exercise any development rights set forth in Section 8.2;
B. To maintain anywhere within the Property
(other than in Lots previously sold by Declarant) sales offices, management
offices, signs advertising the Property and model homes; and,
C. To appoint or remove any officer of the
Association, or any member of the Board of Directors appointed by Declarant, or
any member of the Architectural Control Committee appointed by Declarant, which
right shall remain in place until the transfer of control date.
Section
8.4: Declarant's Approval: Until Declarant no longer has any Lots in the Property, the
Association shall not, without first obtaining the prior written consent of the
Declarant, which consent shall not be unreasonably withheld: levy any special
assessment; change or repeal any rules of the Association; make any substantial
reduction or change in Association services; or, make any amendment to
Association documents.
ARTICLE
9 ‑ ASSESSMENTS
Section 9.1: Covenant to Pay Assessments: By acceptance of a deed to any lot in the
Property each Owner of such lot hereby covenants and agrees to pay when due all
Assessments or charges made by the Association, including all Regular, Special
and Limited Assessments and charges made against such Owner pursuant to the
provisions of this Declaration or other applicable instrument.
A. Assessment
Constitutes Lien: Such Assessments
and charges together with interest at a rate established by the Board, costs
and reasonable attorneys fees which may be incurred in collecting the same,
shall be a charge on the land and shall be a continuing lien upon the lot
against which each such Assessment or charge is made.
B. Assessment
is Personal Obligation: Each such
Assessment, together with interest at a rate established by the Board, costs
and reasonable attorney's fees, shall also be the personal obligation of the
Owner of such property beginning with the time when the Assessment falls due.
The personal obligation for delinquent Assessments shall remain such Owners personal
obligation regardless of whether he remains an Owner.
Section 9.2: Uniformity of Assessments: Regular assessments, including expenses of
road maintenance and repair, shall be uniform as to all Owners.
Section 9.3: Regular Assessments: The regular
assessments may include, and shall be limited to, the following regular
expenses:
A. Repairs and maintenance for non‑public
roads within the Property;
B. Expenses of the management of the
Association and its activities;
C.
Taxes and special assessments upon
the Association' s real and personal property;
D.
Premiums for all insurance which
the Association is required or permitted to maintain;
E.
Common services to Owners as
approved by the Board;
F.
Legal and accounting fees for the
Association;
G.
Expenses related to the maintenance
and operation of common area facilities;
H.
Any deficit remaining from any
previous assessment year;
I.
The creation of reasonable
contingency reserves for the future road maintenance or improvement,
administration expenses, fire suppression expenses or legal expenses;
J. The cost of periodically mowing the Field
Lots in accordance with Section 3.24; and,
K. The cost of maintaining the fire
suppression infrastructure and performing the requirements of the fire
suppression plan in accordance with Section 3.23.
Regular assessments
shall be paid annually as provided in Section 9.6.
Section 9.4: Declarant's Obligations: Prior to the transfer
of control date, the Declarant shall have the following options regarding
assessments on Lots owned by Declarant:
Declarant may pay such assessments; or, Declarant shall be deemed to
have met its obligation regarding assessments by the contribution of such funds
and/or services to the Association as are necessary to permit the Association
to perform its responsibilities and meet its financial needs. After the
transfer of control, Declarant shall be subject to the Association's assessment
on any Lots owned by Declarant and located within the Existing Property or
property which has been annexed and made subject to the Association documents.
Section 9.5: Maximum
Regular Assessments:
A.
The Board may prorate the
assessment for any Lot Owner in the year of purchase of such Lot on the basis
of the actual months of ownership of such
B. Effective
2007, and for each subsequent year thereafter until the transfer of the control
date has occurred, assessments shall be set by the Declarant, as necessary to
meet the Association's financial needs and pursuant to the terms and
restrictions of this Article.
C. Effective
with the transfer of control from Declarant to the Association, then the annual
regular assessment may be increased by the Board by a sum not to exceed twenty
percent (20%) of the prior year's regular assessment. Any increase in the
regular assessment which exceeds twenty percent (20%) of the prior year's
regular assessment shall require the approval of sixty-seven percent (67%) of
those members present at or represented by proper proxy at a meeting of the
membership conducted pursuant to notice and at which a quorum is present.
Notice of such meeting shall set forth the purpose therefore and shall be sent
to all members not less than thirty (30) days' nor more than sixty (60) days in
advance of such meeting.
Section
9.6: Regular Assessment Procedure:
A. The
Association's Board of Directors shall set the total annual regular assessment
based upon an advanced budget of the Association's requirements for the
following assessment year. A summary of that budget shall be mailed by ordinary
first class mail or otherwise delivered to all Owners by no later than December
1 of the current budget year (i.e. to take effect on January 1 of the next
assessment year). Subject to the voting requirements for any increase in the
annual regular assessment which exceeds twenty percent (20%) of the prior
year's regular assessment, the budget shall take effect on January 1 of the
assessment year to which it applies.
B. The Board shall cause to be prepared,
delivered, or mailed to each Owner, at least thirty (30) days in advance of the
date payment is due, a payment statement setting forth the annual regular
assessment. All payments of regular assessments shall be due and payable
without any notice or demand, on the due dates declared by the Board. Regular assessments shall be applicable to
all Lots, provided that the Declarant shall have no liability for regular
assessments until the transfer of control date as aforesaid. Each owner other
than the Declarant shall become responsible for the regular assessment on a Lot
as of the date the
Section 9.7: Special Assessments: In the event that the Board shall determine
that its Regular Assessments for a given calendar year is or will be inadequate
to meet the Expenses of the Association for any reason, including but not
limited to attorney's fees and/or litigation costs, other professional fees, or
for any other reason, the Board shall determine the amount necessary to defray
such Expenses and levy a Special Assessment which shall be computed in the same
manner as Regular Assessments. After the transfer of control, no Special
Assessment shall be levied without the vote or written consent of a majority of
the votes of the Members of the Association, which are present at a properly
scheduled meeting of the Members or represented by proxy. The Board shall, in its discretion, determine
the schedule under which such Special Assessment will be paid. Every Special
Assessment levied by and for the Association shall be levied and paid upon the
same basis as that prescribed for the levying and payment of Regular
Assessments for the Association.
Section 9.8: Limited
Assessments: Notwithstanding the
above provisions with respect to regular and special assessments, the Board may
levy a limited assessment against a member as a remedy to reimburse the
Association for costs incurred in bringing the member and/or such member's
Section 9.9: Uniform Rate of Assessment: Unless otherwise specifically provided
herein, regular and special assessments shall be fixed at a uniform rate per
Section 9.10: Assessment Period: Unless otherwise
provided in the Articles or Bylaws, the Assessment period shall commence on
January 1 of each year and terminate December 31 of the year.
Section 9.11: Notice of Default and Acceleration of
Assessments: If
any assessment is not paid within thirty (30) days after its due date, the
Board may mail a notice of default to the Owner. The notice shall substantially set forth (a)
the fact that the installment is delinquent; (b) the action required to cure
the default; (c) a date not less than ten (10) days from the date of the
mailing of the notice by which the default must be cured; and, (d) that the
failure to cure the default on or before the date specified in the notice may
result in the foreclosure of the lien for assessment against the Lot of the
Owner and the exercise by the Board of any other remedies either provided
herein or allowed by law. In such case, and as a condition of the cure of the
delinquent assessment, the Owner may be obligated by the Board. at the Board's
sole discretion, to additionally pay all costs of enforcement, including
without limitation reasonable attorneys fees, costs and related expenses and to
pay a reasonable late charged to be determined by the Board.
Section
9.12:
Enforcement of Assessments:
Each Owner is and shall be deemed to covenant
and agree to pay to the Association each and every assessment provided for in
this Declaration; and agrees to the enforcement of all such assessments in the
manner herein specified. In the event an attorney or attorneys are employed for
collection of any assessment, whether by suit or otherwise, or to enforce
compliance with or specific performance of the terms and conditions of this
Declaration, each Owner agrees to pay reasonable attorneys fees and costs
thereby incurred in addition to any other amounts due or any other relief or
remedy obtained against said Owner. In addition to any other remedies herein or
by law provided, the Board, or its authorized representative, may enforce the
obligations of the Owners to pay the assessments provided for in this
Declaration, and each of them, in any manner provided by law in equity, or
without any limitation of the foregoing, by either or both of the following
procedures:
A.
Enforcement by Suit: By
commencement of a suit at law against any Owner or Owners personally obligated
to pay assessments, for such delinquent assessments as to which they are
personally obligated. Any judgment rendered in any such action shall include
the amount of the delinquency, together with interest thereon as provided for
herein, costs of collection, court costs and reasonable attorney's fees in such
amount as the Court may adjudge against the delinquent Owner. Suit to recover a
money judgment for unpaid assessments shall be maintainable without foreclosing
or waiving the lien hereinafter provided for.
B. Enforcement
by Lien: There is hereby created a
claim of lien, with power of sale, on each and every Lot to secure payment to
the Association of any and all assessments levied against any and all Owners,
together with interest thereon as provided for in this Declaration, fines
imposed for violation of these Covenants, and all costs of collection which may
be paid or incurred by the Association in connection therewith, including
reasonable attorney's fees. The Board or its duly authorized representative may
file and record a Notice of Delinquent Assessment on behalf of the Association
against the
1. The
claim of lien made pursuant to this Declaration;
2. The
name of the record Owner,
3. The
legal description of the
4. The
total amount claimed to be due and owing for the amount of the delinquency,
interest thereon, collection costs, and attorney's fees (with any proper offset
allowed); and,
5. The
name and address of the trustee authorized by the Association to enforce the
lien by public sale.
Upon recordation, the lien claimed therein shall immediately
attach and become effective in favor of the Association as a lien upon the
Each Owner hereby expressly waives any objection to the
enforcement and foreclosure of assessment liens in this manner. Upon the timely
curing of any default for which a Notice
was filed by the Board, the Board shall cause an officer of the Association to
file and record an appropriate release of such Notice in the Office of the
ARTICLE 10 - GENERAL PROVISIONS
Section 10.1: Binding Effect: The various
restrictive measures and provisions of these covenants and restrictions are
declared to constitute mutual equitable servitudes for the protection and benefit
of each parcel in the Community and of the owners thereof and for the benefit
of the Community as a whole. Each
grantee of a conveyance or purchaser under a contract of sale, by accepting a
deed or contract of sale, accepts such subject to all of the covenants,
conditions and restrictions set forth in this Declaration and specifically
agrees to be bound by each and all of them.
Section 10.2: Term
of Declaration: Unless amended
as herein provided, all provisions covenants, conditions and restrictions and
equitable servitudes contained in this Declaration shall be effective for
twenty (20) years after the date upon which this Declaration was originally
recorded, and, thereafter, shall be automatically extended for successive
periods of ten (10) years each unless terminated by agreement of the Owners as
provided for herein below.
Section 10.3: Amendment
of the Declaration: Until the
first Lot subject to this Declaration has been conveyed by Declarant by
recorded deed, any of the provisions, covenants, conditions, restrictions and
equitable servitudes contained in this Declaration may be amended or terminated
by Declarant by the recordation of a written instrument, executed by Declarant,
setting for such amendment or termination.
Section 10.4: Amendment of Declaration by Members: Except as otherwise provided in this
Declaration, and subject to provisions elsewhere contained in this Declaration
requiring the consent of Declarant or others, any provision, covenant,
condition, restriction, or equitable servitude contained in this Declaration
may be amended or repealed at any time and from time to time, upon approval of
the amendment or repeal by at least sixty-seven percent (67%) of those members
present or represented by proxy at a meeting of the membership, scheduled for
the purpose of considering such amendments, at which a quorum is present;
provided:
A. This
Declaration may not be terminated except upon approval by at least ninety
percent (90%) of the membership of the Association; and, in case of termination,
all rights, reservations, and easements granted to or reserved by Declarant
herein shall survive any such termination; and,
B. The
provisions of this Declaration which limit the allowable land uses in the
Subdivision to single-family residential use may be amended only with the
approval of ninety percent (90%) of the Membership and the approval, as
required, by Boise County, in the same manner as would be required for an
approval of a material change to the Conditional Use Permit/Preliminary Plat for
the Subdivision.
Section
10.5: Required Consent of Declarant
to the Amendment:
None of the rights, reservations, or easements granted to or reserved by
Declarant herein may ever be modified or amended without the prior written
consent of Declarant or Declarant’s successor, which consent may be withheld by
Declarant for any reason whatsoever. For the period specified in Section 8.1
above, any proposed amendment or repeal of any other provision of this
Declaration (i.e. a provision not involving any of the rights, reservations or
easements granted to or reserved by Declarant) shall require the prior written
consent of Declarant, or Declarant’s aforesaid successor.
Section 10.6: Priority of First Mortgage Over
Assessments: Each lender who
recorded its mortgage or deed of trust before assessments have become
delinquent and who obtains title to the Lot encumbered by the first mortgage
whether pursuant to remedies provided in the mortgage, by judicial foreclosure,
or by deed or assignment in lieu of foreclosure, shall take title to the lot
free and clear of any claims for unpaid assessment or charges against such Lot
which accrued prior to the time such first mortgage acquires title.
Section 10.7: Remedies Cumulative: Each remedy provided under the Association
documents is cumulative and not exclusive.
Section 10.8: Costs
and Attorneys Fees:
In any action or proceeding under the Association documents, the party which
seeks to enforce the Association documents and prevails shall be entitled to
recover its costs and expenses in connection therewith, including reasonable
attorneys fees and expert witness fees. "Action or proceeding" as
herein stated shall include, without limitation, any arbitration, mediation, or
alternative dispute resolution proceeding.
Section 10.9: Limitation of Liability: The Association, Board of Directors, the
Architectural Control Committee, Declarant and any member, agent or employee of
any of the same shall not be liable to any person for any action or for any
failure to act if the action or failure to act was in good faith and without
malice, and shall be indemnified by the Association to the fullest extent
permissible by the laws of Idaho, including without limitation, circumstances
in which indemnification is otherwise discretionary under Idaho law, in
accordance with and subject to the terms and limitations contained in the
Bylaws.
Section 10.10:
Governing Law: The
Association documents shall be construed and governed under the laws of the
State of
Section 10.11: Severability: Invalidation of any one or more of the
covenants, conditions and restrictions contained herein by judgment or
otherwise shall in no way affect the validity of any of the other provisions,
which shall remain full force and effect.
Section 10.12:
Number and Gender: Unless
the context requires a contrary construction, as used in the Association
documents, the singular shall include the plural and the plural the singular,
and the use of any gender shall include all genders.
Section 10.13: Captions for Content: The titles, headings
and captions used in the Association documents are intended solely for
convenience of reference and are not intended to affect the meaning of any
provisions of this Declaration.
Section 10.14: Mergers or Consolidations: The Association may
merge with another incorporated association to the extent permitted by law.
Upon a merger or consolidation of the Association with another association, its
properties, rights and obligations may, by operation of law, be transferred to
another surviving or consolidated association or, alternatively, the
properties, rights and obligations of another association may, by operation of
law, be added to the properties, rights and obligations of the Association as a
surviving corporation pursuant to a merger. The surviving or consolidated
association may administer and enforce the covenants, conditions and
restrictions established by this Declaration governing the Property together
with the covenants and conditions established upon any other property, as one
plan.
Section 10.15: Conflicts in Documents: In case of any conflict between this document
and the Articles of Incorporation, or the Bylaws of the Association. this
Declaration shall control.
IN WITNESS WHEREOF, Declarant
has executed this Declaration the day and year first above written.
Bruce and Bruce, LLC
By: ________________________________
Steven M. Bruce,
It’s: Managing Member
STATE OF
(ss.
County of ____________. )
On this ___
day of ________________, 2007, before me, ______________________, a Notary
Public in and for said State, personally appeared Steven M. Bruce, known or identified to me to be the Managing
Member of the limited liability company that executed the instrument or the
person who executed the instrument on behalf of said limited liability company,
and acknowledged to me that such corporation executed the same.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the
day and year in this certificate first above written.
NOTARY
PUBLIC FOR
My Commission Expires:
EXHIBIT A
Legal
Description
EXHIBIT B
WATER
RIGHTS ALLOCATION
(Listing
of water rights assigned to the Association for purposes of irrigation of each
EXHIBIT
C
Fire Suppression Plan