Declaration of Covenants,
Conditions and
Restrictions for Wedgewood Residential Development
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This declaration of covenants, conditions
and restrictions for
Wedgewood Residential Development is made effective as of
the 15th day of November, 2001, by
Wedgewood, L.C. (“Grantor” and “Class B Member’) and
Wedgewood Association, Inc.,
an Idaho nonprofit corporation (“Association”).
NOTICE
This is a very important document which each and every potential buyer and owner
of property within the Wedgewood Residential Development should read and
understand.
Table of Contents
ARTICLE I: Recitals
1.1
Property Covered
1.2
Residential Development
1.3
Purpose of Declaration
ARTICLE Ill: Definitions
3.1
Architectural Committee
3.2
Architectural Guidelines
3.3
Articles
3.4
Assessments
3.5
Association
3.6
Association Rules
3.7
Board
3.8
Building Lot
3.9
Bylaws
3.10
Common Areas
3.11
Community-Wide Standard
3.12
Declaration
3.13
First Mortgage
3.14
Grantor
3.15
Improvement
3.16
Limited Assessment
3.17
Member
3.18
Occupant
3.19
Owner
3.20
Person(s)
3.21
Plat
3.22
Project Documents
3.23
Property
3.24
Regular Assessment
3.25
Special Assessment
3.26
Supplemental Declaration
ARTICLE IV: General and Specific Restrictions
4.1
Improvements – Generally
4.2
Exterior Maintenance: Owner’s Obligation
4.3
Nuisances
4.4
No Hazardous Activities
4.5
No Mining or Drilling
4.6
Insurance Rates
4.7
Vehicles and Equipment
4.8
Animals/Pets
4.9
No Mobile Homes or Temporary Structures
4.10
Drainage
4.11
Grading
4.12
Water Supply Systems
4.13
Water Rights Appurtenant to Subdivision Lands
4.14
Sewage Disposal Systems
4.15
Energy Devices
4.16
Signs
4.17
No Further Subdivision
4.18
Leasing
4.19
Grantor’s Right of Development
4.20
Compliance with Laws
4.21
Commencement of Construction
ARTICLE V: Association
5.1
Organization of Association
5.2
Members of Association
5.3
Voting
5.4
Board of Directors and Officers
5.5
Power and Duties of the Association
5.6
Annual Meeting
5.7
Budgets and Financial Statements
5.8
Manager
5.9
Personal Liability
5.10
Security
ARTICLE VI: Rights to Common Areas
6.1
Use of Common Area
6.2
Designation of Common Area
6.3
Delegation of Right to Use
6.4
Damages
ARTICLE VII: Assessments
7.1
Covenant to Pay Assessments
7.2
Uniform Rate of Assessment
7.3
Date of Commencement of Assessments
7.4
Exempt Property
7.5
Capitalization of Association
7.6
Regular Assessments
7.7
Grantor’s Obligation for Assessments
7.8
Special Assessments
7.9
Limited Assessments
7.10
Assessment Period
7.11
Notice and Assessment Due Date
7.12
Reserve Budget and Capital Contribution
7.13
Estoppel Certificate
7.14
Special Notice and Quorum Requirements
ARTICLE VIII: Enforcement of Assessments; Liens
8.1
Right to Enforce
8.2
Assessment Liens
8.3
Method of Foreclosure
8.4
Subordination to Certain Trust Deeds
ARTICLE IX: Inspection of the Association’s
Books and Records
9.1
Member’s Right of Inspection
9.2
Rules Regarding Inspection of
Books and Records
9.3
Director’s Rights of inspection
ARTICLE X: Architectural Committee
10.1
Architectural Committee Creation; Right of Appointment
10.2
Vacancies
10.3
Appointment of
Architectural Committee Representative
10.4
Improvements Generally
10.5
Review of Proposed Construction
10.6
Meetings of the Committee
10.7
No Waiver of Future Approvals
10.8
Compensation of Members
10.9
Inspection of Work
10.10
Non-Liability of Architectural Committee Members
10.11
Variances
10.12
Enforcement
10.13
Grantor’s Exemption
ARTICLE XI: Easements/Licenses
11.1
Owners: Easements of Enjoyment
11.2
Delegation of Use
11.3
Record of Easements
11.4
Easements of Encroachment
11.5
Easement of Access
11.6
Drainage and Utility Easement
11.7
Improvement of Drainage and Easements Areas
11.8
Rights and Duties Concerning Utility Easements
11.9
Party Structures
11.10
Driveway Easements
11.11
General Landscape Easement
11.12
Grantor’s Rights Incident to Construction
11.13
Easements Deemed Created
11.14
Irrigation Easements
11.15
Reservation for Expansion
11.16
Emergency License
11.17
Maintenance License
11.18
Association’s Responsibility
ARTICLE XII: Irrigation System
12.1
Irrigation System
12.2
Non potable Water
ARTICLE XIII: Damage or Destruction
13.1
Association as Attorney in Fact
13.2
Estimate of Damages or Destruction
13.3
Repair and Reconstruction
13.4
Funds for Repair and Reconstruction
13.5
Disbursement of Funds for Repair and Reconstruction
13.6
Decision Not to Rebuild
13.7
Damage or Destruction Affecting Building Lots
ARTICLE XIV: Condemnation
14.1
Rights of Owners
14.2
Condemnation; Distribution of Award; Reconstruction
ARTICLE XV: Resolutions of Disputes
15.1
Avoiding Costs of Litigation and Limiting Right to Litigate
Disputes
15.2
Mandatory Procedures for All Other Claims
15.3
Allocation of Casts of Resolving Claims
15.4
Enforcement of Resolution
ARTICLE XVI: Miscellaneous
16.1
Term
16.2
Amendment
16.3
Mortgage Protection
16.4
Notices
16.5
Enforcement and Non-Waiver
16.6
Use of Trade Name
16.7
Interpretation
16.8
Successors and Assigns
16.9
Owners’ Further Acknowledgments
EXHIBIT A
Legal Description of Property
EXHIBIT B
Map of Approved Septic Field Locations
1.1 Property Covered The property subject to this Declaration of Covenants, Conditions and Restrictions for Wedgewood Residential Development is the property legally described in Exhibit A, attached hereto and made a part hereof, which property consists of approximately 56.23 acres, the official plat of which is, or is about to be, recorded in Ada County, Idaho (the “Property” or “Wedgewood”).
1.2 Residential Development Wedgewood is planned as a residential development that Grantor currently intends to develop in accordance with existing development approvals obtained by Grantor from the City of Eagle, and documented in Eagle City files numbered PP-2-0O, RZ-1 -00, A-2-00 and FP-5-01, or any other development plan(s) for which Grantor may from Lime to time obtain approval (the “Development Plan”). The Property shall be developed for single-family residential homes and Common Area, defined below.
1.3 Purpose of Declaration The purpose of this Declaration is to set forth the basic restrictions, covenants, limitations, easements, conditions and equitable servitudes (collectively, “Restrictions”) that will apply to the entire development and use of any and all portions of the Property, and any other property annexed into Wedgewood, as provided further herein. The Restrictions are designed to protect, enhance and preserve the value, amenities, desirability, and attractiveness of the Property; to ensure a well-integrated, high quality development; and to guarantee adequate maintenance of Common Area, including any Improvements located thereon In a cost-effective and administratively-efficient manner.
Grantor hereby declares that the Property, and each lot, parcel or portion thereof, is and/or shall be held, sold, conveyed, encumbered, hypothecated, leased, used, occupied and Improved subject to the following terms 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 and Restrictions set forth herein shall run with the land constituting the Property, and with each estate therein, and shall be binding upon any Person having or acquiring any right, title or Interest in the Property or any lot, parcel or portion thereof; shall Inure to the benefit of every lot, parcel or portion of the Property and any interest therein; and shall Inure to the benefit of and be binding upon Grantor, Grantor’s successors in interest and each grantee or Owner and such grantee’s or Owner’s respective successors In interest, and may be enforced by Grantor, any grantee or grantee’s successors, any Owner or Owner’s successors, or by the Association. In the event of any conflict between this Declaration and any other of the Project Documents, this Declaration shall control.
Notwithstanding the foregoing, until one hundred percent (100%) of all the Building Lots in the Property are transferred by Grantor, no provision of this Declaration shall be construed as to prevent or limit Grantor’s right to complete development of the Property and to construct improvements thereon, nor Grantor’s right to use and to maintain model homes, construction, sales or leasing offices or similar facilities on any portion of the Property, including Common Area, and/or any public and/or private right-of-way, nor Grantor’s right to post signs Incidental to construction, sales and/or leasing. Grantor and authorized builders shall have easements for access to and use of such location and facilities.
3.1 Architectural Committee shall mean the Architectural Committee created by Grantor pursuant to Article X hereof.
3.2 Architectural Guidelines shall mean the Architectural Guidelines and rules promulgated, published, amended and supplemented from time to time pursuant to Article X.
3.3 Articles shall mean the Articles of Incorporation of the Association.
3.4 Assessments shall mean those payments required of Owners who are Association Members, Including Regular, Special and Limited Assessments. The Association shall have the right to require assessments from its Members.
3.5 Association shall mean any Idaho nonprofit corporation, or its successors, organized and established, or to be organized and established, by Grantor to exercise the powers and to carry out the duties set forth in this Declaration or any Supplemental Declaration. Grantor shall have the power, in Grantor’s discretion, to name the Association the “Wedgewood Association, Inc.”, or any similar name which fairly reflects its purpose.
3.6 Association Rules shall mean those rules and regulations that may be promulgated by the Association governing conduct upon and use of the Property under the jurisdiction or control of that Association, the imposition of lines and forfeitures for violation of Association Rules and regulations, and procedural matters for use In the conduct of business of the Association.
3.7 Board shall mean the duly qualified Board of Directors.
3.8 Building Lot shall mean a lot within Wedgewood as specified or shown on any Plat and/or by Supplemental Declaration upon which Improvements may be constructed. Building Lot shall not include any Common Area. Building Lot shall not include Lot 10, Block 6 or Lot 1, Block 9, as shown on the Plat, which Lot 10, Block 6 and Lot 1. Block 9 are non-buildable lots.
3.9 Bylaws shall mean the Bylaws of the Association.
3.10 Common Areas shall mean any or all parcels of Common Area, and may include, without limitation, Lot 1, Block 1; Lot 1, Block 2; Lot 1, Block 3; Lot 1, Block 4; and Lot 1, Block 9, as shown on the Plat, and all such portions of the Property that are or may be designated as private streets or drives, parking areas or drives, common open space, common landscaped areas, and other amenities and facilities. Common Area may be established from time to time by Grantor on any portion of the Property by describing such area on a recorded Plat, by granting or reserving Common Area in a deed or other instrument, or by designating Common Area as such in this Declaration or in any Supplemental Declaration. The Common Area may include easement and/or license rights.
3.11 Community-Wide Standard shall mean the standard of conduct, maintenance, or other activity generally prevailing throughout the Property. Such standard may be more specifically determined by the Board and/or the Architectural Committee.
3.12 Declaration shall mean this Declaration of Covenants, Conditions and Restrictions for Wedgewood Residential Development as the Declaration may be amended and supplemented from time to time.
3.13 First Mortgage shall mean any Mortgage which is not subordinate to any lien or encumbrance except liens for taxes or other liens which are given priority by statute.
3.14 Grantor shall mean Wedgewood, L.C., or its successors in interest, or any Person to whom the rights under this Declaration are expressly transferred, in whole or in part, other than a transfer to individual Building Lot Owners, by Wedgewood, L.C., or its successors.
3.15 Improvement shall mean any structure, facility or system, or other improvement or object, whether permanent or temporary, which is erected, constructed, placed upon or allowed on, under or over any portion of the Property, including, without limitation, residential structures, accessory structures, fences, streets, drives, driveways, parking areas, sidewalks, curbs, landscaping, walls, hedges, plantings, trees, improvements, living and/or dead vegetation, rocks, signs, lights, mail boxes, electrical lines, pipes, pumps, ditches, recreational facilities, grading, road construction, utility improvements, removal of trees and other vegetation, and any new exterior construction or exterior improvement which may not be included In the foregoing. Improvement(s) includes both original improvements existing on the Property on the date hereof and all later changes and Improvements.
3.16 Limited Assessment shall mean a charge against a particular Owner, and such Owner’s Building Lot, directly attributable to such Owner, equal to the cost Incurred by the Association in connection with corrective action performed pursuant to the provisions of this Declaration and/or any Supplemental Declaration, including, without limitation, damage to any Common Area or the failure of an Owner to keep such Owner’s Building Lot and/or Improvements in proper repair, and including interest thereon.
3.17 Member shall mean each Owner holding a membership In the Association, including Grantor.
3.18 Occupant shall mean any resident or occupant of a Building Lot other than the Owner including, without limitation, family members, guests, invitees and tenants.
3.19 Owner shall mean the record owner, whether one or more Persons, including Grantor, holding fee simple interest of record to a Building Lot which is a part of the Property, and buyers under executory contracts of sale, but excluding those Persons having such Interest merely as security for the performance of an obligation, unless and until such Person has acquired fee simple title pursuant to foreclosure or other proceedings.
3.20 Person(s) shall mean any individual, partnership, corporation, trust, estate or other legal entity, including Grantor.
3.21 Plat shall mean any subdivision plat covering any portion of the Property as recorded in the Recorders Office, Ada County, Idaho as the same may be amended by duly recorded amendments thereof, including without limitation that certain initial plat entitled Carlene Estates, as recorded on November 15 ,2001, In the Ada County Recorder’s Office as instrument no. 101120096.
3.22 Project Documents shall mean the basic documents governing the Property Including, without limitation, this Declaration, any Supplemental Declarations, Articles of Incorporation and Bylaws of the Association, any Association Rules, any Plat, the Architectural Guidelines and any other procedures, rules, regulations or policies adopted under such documents by the Association or the Architectural Committee.
3.23 Property shall mean any properly subjected to this Declaration or property added by recorded Supplemental Declarations, including, without limitation, each lot, parcel and portion thereof and interest therein. The Property is sometimes referred to herein as Wedgewood.
3.24 Regular Assessment shall mean the portion of the cost of designing, constructing, maintaining, Improving, repairing, managing and/or operating all Common Area, including all Improvements located thereon, and the other costs and expenses Incurred to conduct the business and affairs of the Association that is levied against the Building Lot of each Owner by the Association, pursuant to the terms of this Declaration and/or a Supplemental Declaration.
3.25 Special Assessment shall mean that portion of the cost of the capital Improvements or replacements, equipment purchases and/or shortages in Regular Assessments which are authorized to be paid to the Association pursuant to the provisions of this Declaration, or a Supplemental Declaration.
3.26 Supplemental Declaration shall mean any Supplemental Declaration including additional covenants, conditions and restrictions that may be adopted by Grantor with respect to any portion of the Property or adjacent property.
Article IV: General and Specific Restrictions
4.1 Improvements - Generally All improvements are to be designed, constructed and used in such a manner as to promote compatibility between the types of uses contemplated by this Declaration and to maintain the Community-Wide Standard. Specific design and construction guidelines are contained In the Architectural Guidelines. The Architectural Guidelines and the general instructions set forth in this Declaration shall govern the right of a Person or Owner, excluding Grantor, to construct, reconstruct, refinish, remove, add, alter or maintain any Improvement upon, under or above the Property, and to make or create any excavation or fill on the Property, or to make any change In the natural or existing surface contour or drainage, or install any utility line or conduit on, under or above the Property, including, without limitation, any Building Lot. All Improvements by any Owner, excluding Grantor, must be preapproved in writing by the Architectural Committee prior to such Owner’s construction or reconstruction.
All Building Lots shall be used exclusively for single-family residential purposes. No Building Lot shall be improved except with residential structures and accessory structures as permitted under the Architectural Guidelines. No residential structure shall exceed two (2) stories in height and no accessory structure shall exceed one (1) story in height Notwithstanding anything to the contrary herein, the first Owner except Grantor, of any Building Lot shall, at a minimum, sod and sprinkle such Owner’s Building Lot within ninety (90) days from the date such Owner obtains title to such Building Lot. Prior to the construction of Improvements, the Owner shall provide adequate irrigation and maintenance of existing trees and landscaping, shall control weeds, and maintain the Owner’s Building Lot In a clean and safe condition free of debris or any hazardous condition.
Notwithstanding anything to the contrary herein, Lots 4 and 5, Block 6, as shown on the Plat, are subject to a life estate in the present owners, Lee and Blanche Schultsmeier. As soon as reasonably practicable following the end of such life estate such Building Lots subject to this life estate shall be brought into compliance with this Declaration.
4.1.1 Architectural Committee Review No improvements which will be visible above ground or which will ultimately affect the visibility of any above ground Improvement shall be built, erected, placed or materially altered on or removed from the Property unless and until the building plans, specifications, and plot plan have been reviewed In advance by the Architectural Committee, and the same have been approved in writing. The review and approval or disapproval may be based upon the following factors: design and style elements, mass and form, topography, setbacks, finished ground elevations, architectural symmetry, drainage, color, materials, including mandatory roofing materials, physical or aesthetic impacts on other properties, artistic conformity to the terrain and the other Improvements on the Property, and any and all other factors in connection with the Community-Wide Standard that the Architectural Committee, in Its reasonable discretion, deems relevant.
4.1.2 Setbacks and Heights No residential or other structure shall be placed nearer to the Building Lot lines or built higher than permitted by the Plat, by the Project Document, this Declaration, by any applicable zoning restriction, or by the Architectural Committee, whichever is more restrictive. Notwithstanding anything to the contrary herein, unless otherwise specifically approved in writing by the Architectural Committee, no dwelling, structure or garage or any part thereof, or any other structure (exclusive of fences and similar structures) shall be placed nearer than fifty (50) feet to the front property line of the Building Lot in which it is located, or thirty-five (35) feet to the rear property line of the Building Lot on which ills located, or nearer than twenty-five (25) feet to any side property line of the Building Lot on which it is located. Provided, however, that the Architectural Committee may, at Its discretion, approve rear setbacks of twenty (20) feet for accessory buildings on Lots 13-16, Block 6, and Lots 1-11, Block 5, if any such accessory building shall not obstruct unreasonably any Owner’s view. For the purposes of setback determinations, all Building Lots which are bordered on one (1) side by a public street and on an adjacent side by a cul-de-sac shall be considered corner Building Lots. No structures on Lots 5,6,7,8,9, 11 and 12, Block 6, as shown on the Plat, shall be placed nearer than forty (40) feet to the edge of the rim of such Building Lots or as otherwise required by the City of Eagle, whichever Is more restrictive. For the purpose of this Section, eaves, steps, chimneys, and gutters shall not be considered as part of the dwelling structure; provided, however, that this shall not be construed to permit any eaves, steps, chimneys or gutters or any portion of the building on any Building Lot encroach upon any other Building Lot. Open porches shall not be considered as part of the dwelling structure, but any open perch which would extend beyond the building lines as herein established shall, prior to construction, require the approval or the Architectural Committee. Notwithstanding anything to the contrary herein, rear setbacks of Building Lot 1, Block 5, as shown on the Plat, and Building Lots 1, 2, 3 and 4, Block 6, as shown on the Plat, shall be measured from the Building Lot line along Locust Grove Road but shall be measured from the west line of the landscape and irrigation easement running parallel to Locust Grove Road and in such Building Lots, as shown further on the Plat.
4.1.2 Driveways All access driveways shall have a wearing surface of asphalt. concrete, or other hard surface materials, and shall be properly graded to assure proper drainage. No driveway shall be wider than thirty (30) feet at the front of a Building Lot at the point Intersecting with the street adjacent to the Building Lot.
4.1.3 Mailboxes The Grantor or Architectural Committee shall designate the design material, coloration and location of mailboxes. All mailboxes shall be of consistent design, material and coloration, and shall be located on or adjoining Building Lot lines.
4.2 Exterior Maintenance: Owner’s Obligation No Improvement shall be permitted total into disrepair, and each Improvement shall at all times be kept in good condition and repair. In the event that any Owner shall permit any Improvement, Including trees and landscaping, which is the responsibility of such Owner to maintain, to fall Into disrepair so as to create a dangerous, unsafe, unsightly or unattractive condition, or damages property or facilities on or adjoining such Owner’s Building Lot, the Association, upon fifteen (15) days’ prior written notice to the Owner of such Building Lot, shall have the right to correct such condition, and to enter upon such Owner’s Building Lot for the purpose of doing so, and such Owner shall promptly reimburse the Association for the cost thereof. Such cost shall be a Limited Assessment and shall create a lien enforceable in the same manner as other Assessments as set forth herein. The Owner of the offending Building Lot shall be personally liable, and such Owner’s Building Lot may be subject to a lien for alt costs and expenses incurred by the Association In taking such corrective action(s), plus all costs incurred in collecting the amounts due, if any. Each Owner shall pay all amounts due for such work within ten (10) days after receipt of written demand there for, or the amounts may, at the option of the Board, be added to the amounts payable by such Owner as Regular Assessments.
4.3 Nuisances No rubbish or debris of any kind shall be placed or permitted to accumulate anywhere upon the Property, including Common Area or vacant Building Lots, and no odor shall be permitted to arise from any portion of the Property so as to render the Property or any portion thereof unsanitary, unsightly, offensive or detrimental to the Property or to its occupants or residents, or to any other property In the vicinity thereof or to its occupants or residents. No unsightly articles shall be permitted to remain on any Building Lot so as to be visible from any other portion of the Property. Without limiting the generality of the foregoing, refuse, garbage, trash, equipment, gas canisters propane gas tanks, barbecue equipment, heat pumps, compressors, containers, lumber, firewood, grass, shrub or tree clippings, plant ways, metals, bulk material, and scrap shall be kept at alt times in such containers and in areas approved by the Architectural Committee. No clothing or fabric shall be hung, dried or aired In such a way as to be visible to any other portion of the Property.
No noise, no exterior fires, no obstructions of pedestrian walkways, no unsightliness, or other nuisance shall be permitted to exist or operate upon any portion of the Property so as to be offensive or detrimental to the Property or to Its occupants or residents or to other property in the vicinity or to Its occupants or residents, as determined by the Association, In Its reasonable Judgment, or in violation of any State or local law or ordinance. Without limiting the generality of any of the foregoing, no whistles, bells or other sound devices (other than security devices used exclusively for security purposes which have been approved by the Architectural Committee) flashing lights or search lights, shall be located, used or placed on the Property without prior written approval of the Architectural Committee.
4.4 No Hazardous Activities No activities shall be conducted on the Property, and no Improvements shall be constructed on the Property that are or might be unsafe or hazardous to any Person or property.
4.5 No Mining or Drilling No portion of the Property shall be used for the purpose of blasting, mining, quarrying, drilling, boring or exploring for or removing water, oil, gas or other hydrocarbons, minerals, rocks, stones, sand, gravel or earth. This Section shall not prohibit exploratory drilling or coring which is necessary to construct Improvements.
4.6 Insurance Rates Nothing shall be done or kept on the Property and/or any Building Lot that will increase the rate of, or cancel any insurance on any other portion of the Property without the approval of the Owner(s) of such other portion, nor shall anything be done or kept on the Property and/or any Building Lot that would result in the cancellation of insurance on any portion of the Property owned and/or managed by any Association or which would be in violation of any law.
4.7 Vehicles and Equipment The use of all vehicles and equipment, including, without limitation, trucks, automobiles, bicycles, motorcycles, recreational vehicles, all-terrain vehicles, motor homes, motor coaches, campers, trailers, snowmobiles, aircraft, boats, snow removal equipment, garden maintenance equipment, and yard maintenance equipment shall be subject to any of the Project Documents that prohibit or limit the use thereof within the Property.
Without limiting the foregoing, the following specific restrictions apply:
(a) all on-street parking shall be limited to those specific areas where on-street parking is not expressly prohibited and no Owner’s or guests’ vehicles shall be continuously parked on the street adjacent to such Owner’s Building Lot for a period of time In excess of twelve (12) hours;
(b) vehicles shall not extend or otherwise be permitted on or into any sidewalk unless such vehicle is engaged in an emergency procedure, or as provided elsewhere in the Project Documents;
(c) no motor homes, motor coaches, campers, trailers, snowmobiles, aircraft, boats, recreational vehicles, all-terrain vehicles, abandoned or inoperable vehicles (that is, any vehicle which has not been driven under its own propulsion for a period of seven (7) days or longer), oversized vehicles (that is, vehicles which are too high or too wide to clear the entrance of an approved residential garage door opening), dilapidated or unrepaired and unsightly vehicles or similar equipment such as snow removal equipment, garden maintenance equipment and all other potentiality unsightly equipment and machinery shall be placed upon any portion of the Property including, without limitation, streets, parking areas and driveways, unless the same are enclosed by a structure concealing them from view in a manner approved by the Architectural Committee;
(d) to the extent possible, garage doors shall remain closed at all times and no more than two (2) vehicles may be parked in any Owner’s driveway at one time;
(e) the use of electronic, gas or other fuel operated gardening, yard or snow removal equipment shall only be allowed from 8:00 a.m. to 8:00 p.m.; and
(f) the placement of exhaust fans used for exhausting odors, fumes, dust, or similar substances shall be placed in a location that w not offend or be a nuisance to adjacent Building Lois or their occupants.
4.8 Animals No animals, birds, insects, pigeons, poultry or livestock shall be kept on the Property. This Section is not intended to prohibit the keeping of up to two (2) domesticated dogs, up to two (2) domesticated cats, and other typical household pets which do not unreasonably bother or constitute a nuisance to others, Without limiting the generality of the foregoing, consistent and/or chronic barking by dogs or similar sounds by other household pets shall be considered a nuisance. Each dog or other similar household pet in Wedgewood shall be kept on a leash, curbed, and otherwise controlled at all times when such animal is off the premises of its Owner and are to be kept in compliance with all applicable State and local laws and ordinances. Such Owner shall clean up any animal defecation Immediately from any Common Area or public right-of-way. Failure to do so may result, at the Association’s discretion, with a Limited Assessment levied against such animal Owner, The construction of dog runs or other pet enclosures shall be subject to applicable Architectural Guidelines and shall be appropriately screened and maintained in a sanitary condition. Dog runs or other pet enclosures shall be placed a minimum of sixty (60) feet from the side and/or rear Building Lot line, shall not be placed in any front yard of a Building Lot, and shall be screened from view so as not to be visible from an adjacent Building Lot.
4.9 No Mobile Homes or Temporary Structures No house trailer, manufactured home, mobile home, tent (other than for short term recreational use), shack or other temporary building, improvement or structure shall be placed upon any portion of the Property, except temporarily as may be required by construction activity undertaken on the Property. Providing however, that a mobile office may be placed upon a portion of the Property by Grantor or Grantor’s agents and/or employees for the purpose of construction, operation and/or marketing Wedgewood or other adjacent land until all such construction and/or marketing is complete.
4.10 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 be Grantor, or that drainage which is shown on any plans approved by the Architectural Committee, which may include drainage from a Common Area over a Building Lot in the Property.
4.11 Grading The Owner of any Building Lot within the Property In which grading or other work has been performed pursuant to a grading plan approved under applicable State or local laws, ordinances and/or by the Architectural Committee, shall maintain and repair all graded surfaces and erosion prevention devices, retaining walls, drainage structures, means or devices which are not the responsibility of any public agency, and plantings and ground cover Installed or completed thereon. All excavation and clearing of Building Lots shall be conducted in a workmanlike manner and shall not result in any unsightly areas on such Building Lot. All soils and other materials excavated on any Building Lot which are not used in construction on such Building Lot shall be promptly removed from the Building Lot. The Building Lot Owner and Its builder shall be responsible for the repair of any damage that may occur during excavation, removal and construction activities to streets, mailboxes, utilities, roadways or other on-site or off-site Improvements. Such requirements shall be subject to Limited Assessments provided for herein.
4.12 Water Supply Systems No separate or individual water supply system, regardless of the proposed use of the water to be delivered by such system, shall be permitted on any Building Lot unless such system is approved by all government authorities having jurisdiction, and designed, located, constructed and equipped in accordance with the requirements, standards and recommendations of the Association, the Architectural Committee, and Grantor, so long as Grantor is the Owner of Building Lots In the Property.
4.13 Water Rights Appurtenant to Subdivision Lands Grantor owns certain water rights which are appurtenant to the Property. Grantor hereby reserves unto itself any and all water and water rights, ditch and ditch rights, and storage and storage rights appurtenant to the Property, and accordingly, Owner of any Building Lot(s) or Common Area shall have no right, title or Interest in any of such water and water rights, ditch and ditch rights, and storage and storage rights.
4.14 Sewage Disposal Systems Each Owner shall install on such Owner’s Building Lot a septic system to serve the dwelling structure constructed on such Building Lot, which septic system shall comply with all applicable state and local laws and ordinances. No other Individual sewage disposal system shall be used on the Property. At such time as a common sewer system becomes available to the Property, if ever, each Owner shall connect the appropriate facilities on such Owner’s Building Lot to such common sewer system and pay all charges and costs assessed therefore.
4.15 Energy Devices No energy production devices, including, without limitation, generators of any kind and solar energy devices, shall be constructed or maintained on any portion of the Property without the written approval of the Architectural Committee, except for heat pumps shown In the plans for a residential structure and as approved by the Architectural Committee. This Section shall not apply to passive solar energy systems incorporated into the approved design of a residential structure or any back-up devices necessary for utility pump stations.
4.16 Signs No sign of any kind shall be displayed to the public view without the approval of the Architectural Committee or Association, except ( such signs as may be used by Grantor in connection with the development of the Property and sale of Building Lots; (2) temporary signs naming the contractors, the architect, and the lending institution for a particular construction operation; (3) such signs Identifying Wedgewood Subdivision, or informational signs, of customary and reasonable dimensions as prescribed by Grantor or the Architectural Committee or Association may be displayed; and (4) one (1) sign of customary and reasonable dimensions not to exceed three (3) feet by two (2) feet as may be displayed by an Owner other than Grantor on or from a Building Lot advertising the Building Lot for sale or lease.
4.17 No Further Subdivision No Building Lot may be further subdivided unless expressly approved in writing by Grantor and consistent with all applicable State and local laws and ordinances.
4.18 Leasing The Owner of a Building Lot shall have the right to lease such Building Lot and dwelling structure thereon, subject to the following conditions: (1) any lease shall be in writing; (2) such lease shall be specifically subject to the Project Documents, and any failure of a tenant to comply with the Project Documents shall be a default under the lease; and (3) the Owner shall be liable for any violation of the Project Documents committed by the tenant of such Owner, without prejudice to the Owner’s right to collect any sums from such tenant paid by the Owner on behalf of the tenant. Any Building Lot containing accessory living space must be leased to a single tenant (that is, there cannot be two (2) tenants of a Building Lot).
4.19 Grantor’s Right of Development Nothing contained herein shall limit the right of Grantor to subdivide or resubdivide any portion of the Property, to grant licenses, to reserve rights-of-ways and easements For utility companies, public agencies or others, or to complete excavation, grading and construction of Improvements to and on, under or about any portion of the Property owned by Grantor and/or the Association, or to alter the foregoing and Grantor’s construction plans and designs, or to construct such additional improvements as Grantor deems advisable in the course of development of the Property so tong as any Building Lot in the Property remains unsold by Grantor. Such right shall include, but shall not be limited to, erecting, constructing and maintaining on the Property such structures and displays as may be reasonably necessary for the conduct of Grantor’s business of completing the development work and disposing of the Property by sales, lease or otherwise. Grantor shall have the right at any time prior to acquisition of title to a Building Lot by a purchaser to grant, establish and/or reserve on that Building Lot additional licenses, reservations and rights-of-way to Grantor, to utility companies, or to others as may from time to time be reasonable necessary for the proper development and disposal of the Property. Grantor may use any structures owned by Grantor on the Property as model home complexes or real estate sales or leasing offices. Grantor need not seek or obtain Association, or Architectural Committee approval of any Improvement constructed or placed by Grantor on any portion of the Property and/or Wedgewood. The rights of Grantor in connection with the Declaration may be assigned by Grantor to any successor in Interest in connection with Grantor’s Interest in any portion of the Property, by an express written assignment recorded in the Ada County Recorder’s Office.
Grantor, in Grantor’s sole discretion and in accordance with all applicable State and local zoning laws, may amend and modify the Development Plan. By acceptance of a deed to any property In Wedgewood, each Owner of such property thereby acknowledges and agrees the Development Plan for the Property may be amended, modified or changed in Grantor’s sole discretion, so long as the Development Plan is consistent with applicable State and local zoning laws. Each Owner by acceptance of a deed to any Building Lot or other property within Wedgewood agrees that such Owner shall not object to or oppose any development of any portion of the Property and/or Wedgewood, or other property owned or purchased by Grantor and annexed to the Property. Such agreement not to oppose development is a material consideration to the conveyance of any portion of the Property by Grantor to any and all Persons.
4.20 Compliance with Laws Subject to the rights of reasonable contest, each Owner shall promptly comply with the provisions of all applicable laws, regulations, ordinances and other governmental or quasi-governmental regulations with respect to all or any portion of the Property.
4.21 Commencement of Construction Upon commencement of construction of a dwelling structure in compliance with the restrictions herein, such construction shall be completed within twelve (12) months thereafter. The term ‘commencement of construction” as used in this Section, shall require actual physical construction activities upon such dwelling structure upon such Building Lot. No Owner shall be required to build on any Building Lot; provided, however, each Owner shall be required to maintain such Owner’s Building Lot in a slightly manner prior to construction, free from trash, debris and weeds.
5.1 Organization of Association The Association shall be Initially organized by Grantor as an Idaho nonprofit corporation under the provisions of the Idaho Code relating to nonprofit corporations and shall be charged with the duties and invested with the powers prescribed by law and set forth in the Articles and Bylaws of the Association and this Declaration. Neither the Articles nor the Bylaws of the Association shall be amended or otherwise changed or interpreted so as to be inconsistent with this Declaration. Grantor grants to the Association a revocable, nonexclusive license to use the name “Wedgewood” for the sole purpose of identifying the Association.
5.2 Members of Association The Members shall be all Owners and no Owner, except Grantor, shall have more than one membership in the Association. Memberships in the Association shall be appurtenant to the Building Lot or other portion of the Property owned by such Owner. The memberships in the-Association cannot be terminated and shall not be transferred, pledged, assigned or alienated in any way except upon the transfer of an Owner’s title in and to such Building Lot or other portion of the Property owned by such Owner, and then only to the transferee of such title. Any attempt to make a prohibited membership transfer shall be void and shall not be reflected on the books of the Association.
5.3 Voting The Association will have two (2) classes of memberships.
5.3.1 Class A Members Class A Members shall be Owners of Building Lots within Wedgewood except for Grantor. The Class A Members shall be entitled to one (1) vote for each Building Lot owned by such Class A Members.
Fractional votes shall not be allowed. In the event that Joint Owners of a Building Lot are unable to agree among themselves as to how their vote shall be cast, such Owners 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 conclusive for all purposes that such Owner was acting with authority and consent of all joint Owners of the Building Lot(s) from which the vote derived. The right to vote may not be severed or separated from the ownership of the Building Lot to which it is appurtenant, except that any Owner may give a revocable proxy, or may assign such Owner’s right to vote to a lessee, mortgagee, beneficiary or contract purchaser of the Building Lot concerned, for the term of the lease, mortgage, deed of trust or contract. Any sale, transfer or conveyance of such Building Lot to a new Owner shall operate automatically to transfer the appurtenant voting right to the proposed owner, subject to any assignment of the right to vote to a lessee, mortgagee, beneficiary or contract purchaser as provided herein.
5.3.2 Class B Members Grantor shall be the Class B Member, and shall be entitled to five (5) votes for each Building Lot owned by Grantor within Wedgewood. The Class B Member shall cease to be a voting Member in the Association at the earlier of: (1) the Class B Member holds no more than five percent (5%) of the Building Lots within Wedgewood; or (2) fifteen (15) years from the date the first Building Lot within Wedgewood is conveyed by Grantor.
5.4 Board of Directors and Officers The business and affairs of the Association shall be conducted and managed by a Board of Directors, composed of not less than three (3) persons, elected in accordance with the Articles and Bylaws of the Association, as the same may be amended from time to time. The Association may exercise any right or privilege given to the Association expressly by this Declaration and the Project Documents, or as reasonably implied from or reasonably necessary to effectuate any such right or privilege.
5.5 Power and Duties of the Association
5.5.1 Powers The Association shall have all the powers of a nonprofit corporation organized under the nonprofit corporation laws of the State of Idaho subject only to such limitations upon the exercise of such powers as are expressly set forth in the Project Documents, and to do and perform any and all acts which may be necessary, proper, and/or incidental to the proper management and opera of the Association’s business, Common Area, and the Association’s other assets, and the performance of the other responsibilities herein enumerated, including, without limitation:
5.5.1.1 Assessments The power to levy Assessments on behalf of itself, on any Owner, or any portion of the Property, pursuant to the restrictions provided in this Declaration, and to enforce payment of such Assessments, all in accordance with the provisions of this Declaration. This power shall include the right of the Association to levy Assessments on any Owner or any portion of the Property to cover the operation and maintenance costs of Common Area.
5.5.1.2 Right of Enforcement The Association shall be the primary entity responsible for enforcement of this Declaration, The power and authority from time to time in Its own name, on Its own behalf, or on behalf of any Owner or Owners who consent thereto, to commence and maintain actions and suits to restrain and enjoin any breach or threatened breach of the Project Documents, and to enforce by Injunction or otherwise, all provisions hereof. The Association, after reasonable notice to the offender and/or to the Owner, may remove any Improvement constructed, reconstructed, refinished, removed, added, altered or maintained in violation of this Declaration and/or the Architectural Guidelines, and the Owner of the improvements shall immediately reimburse the Association for all expenses incurred with such removal. Each violation of this Declaration and the Architectural Guidelines is hereby declared to be and to constitute a nuisance, and every public or private remedy allowed for such violation by law or equity against an Owner shall be applicable.
5.5.1.3 Delegation of Powers The authority to delegate Its power and duties to committees, officers, employees, or to any Person to act as manager for the maintenance, repair, replacement and operation of any Common Area. The Association and the members of the Association shall not be liable for any omission or improper exercise by the manager of any such duty or power so delegated. All contracts for management of any Common Area and/or landscaping shall be for a term not exceeding one (1) year, shall be terminable on thirty (30) days notice with or without cause, and shall be subject to review by the Board,
5.5.1.4 Association Rules The Association shall be the primary entity responsible for enforcement of the Association Rules. The power to adopt, amend and repeal by majority vote of the Board such Association Rules and regulations as the Association deems reasonable. The Association may govern the use of Common Area by Owners, their families, invitees, licensees, lessees, or contract purchasers; provided, however, that any Association Rules shall apply equally to all Owners and shall not be Inconsistent with this Declaration. 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 such Association Rules are inconsistent with or less restrictive than any other provisions of this Declaration, the provisions of the Association Rules shall be deemed to be superceded by the provisions of this Declaration to the extent of any such inconsistency.
5.5.1.5 Emergency Powers The power, exercised by the Association or by any Person authorized by the Association, to enter upon any portion of the Property (but not Inside any building constructed thereon) in the event of any emergency involving illness or potential danger to life or property or when necessary in connection with any maintenance or construction for which the Association is responsible. Such entry shall be made with as little inconvenience to the Owner of such portion of the Property as practicable, and any damage caused thereby shall be repaired by the Association.
5.5.1.6 Licenses, Easements and Rights-of-Way The power to grant and convey to any third party such licenses, easements and rights-of-way in, on, under and about Common Area as may be necessary or appropriate for the orderly construction of Improvements, maintenance, preservation and enjoyment of the same, and for the preservation of the health, safety, convenience and the welfare of Owners:
5.5.1.6.1 Underground lines, cables, wires, conduits or other devices for the transmission of electricity or electronic signals for lighting, heating, power, telephone, television or other purposes, and the above ground lighting stanchions, meters, and other facilities associated with the provisions of lighting and services;
5.5.1.6.2 Public or private sewers, septic systems, storm drains, water drains and pipes, water supply systems, sprinkling systems, heating and gas lines or pipes, and any similar public or quasi-public improvements or facilities; and
5.5.1.6.3 Mailboxes and sidewalk abutments around such mailboxes or any service facility, berm, fencing and landscaping abutting common area, public and private streets or land conveyed for any public or quasi-public purpose including, without limitation, pedestrian and bicycle pathways.
5.5.2 Duties In addition to duties necessary and proper to carry out the power delegated to the Association by the Project Documents, without limiting the generality thereof, the Association or its agents, if any, shall have the authority and the obligation to conduct all business affairs of the Association and to perform, without limitation, each of the following duties:
5.5.2.1 Operation and Maintenance of Common Area Operate, maintain, and otherwise manage or provide for the operation, maintenance and management of Common Area and common landscaping along Locust Grove Road, including the repair and replacement of property damaged or destroyed by casualty loss and Including any signs placed at the entrances to, or otherwise In the vicinity of the Property. All drainage ponds, pipes and related faculties shall be maintained in accordance with sound hydrological principles and irrigation company rules, where applicable. The Association shall, at Grantor’s sole discretion, own and/or operate and/or maintain all properties owned by Grantor which are designated by Grantor for temporary or permanent use by Members of the Association;
5.5.2.2 Reserve Account Establish and fund a reserve account with a reputable banking institution or savings and loan association or title Insurance company authorized to do business in the Slate of Idaho, which reserve account shall be dedicated to the costs of repair, replacement, maintenance and improvement of Common Area;
5.5.2.3 Maintenance of Landscaping, Berms, Retaining Walls and Fences Maintain any berms, retaining wails, fences within and abutting any Common Area, and the maintenance of all landscaping and fencing, if any, In that certain landscape and Irrigation easement located In Building Lots 1 and 2, Block 5 and Building Lots 1,2,3 and 4, Block 6, as shown on the Plat;
5.5.2.4 Maintenance of the Irrigation System The operation and maintenance of the Irrigation System, defined below, contemplated for the Property when and if conveyed to the Association. it is contemplated that Grantor shall construct the Irrigation System, and that Grantor may transfer the irrigation System to the Association by describing such transfer on a recorded Plat, or granting or reserving the Irrigation System in a deed or other instrument, or in this Declaration or in any Supplemental Declaration. Notwithstanding any other provision of this Declaration, if Grantor has transferred the irrigation System to the Association, the Association shall have the right to transfer, sell or convey the Irrigation System to a public or private entity, conditioned only upon reasonable assurances that the irrigation System will be owned, operated and maintained In a manner that will provide service from the Irrigation System to Owners on a continuing basis with quality of service equal to the Community-Wide Standard, and service that meets all applicable governmental laws, ordinances and regulations. For purposes of this Article, Grantor is hereby appointed and made attorney-in-fact for the Association, with full power of attorney to consummate any such transfer of the Irrigation System;
5.5.2.5 Taxes and Assessments Pay all real and personal property taxes and Assessments separately levied against Common Area, or against other portions of the Property owned by the Association. Such taxes and Assessments may be contested or compromised by the Association, provided, however, that such taxes and Assessments are paid or a bond insuring payment is posted prior to the sale or disposition of any property to satisfy the payment of such taxes and Assessments. In addition, the Association shall pay all other federal State and/or local taxes, including Income or corporate taxes levied against the Association In the event that the Association is denied the status of a tax exempt corporation;
5.5.2.6 Water and Other Utilities Acquire, provide and/or pay for water, sewer, garbage disposal, refuse and rubbish collection, electrical, telephone and gas and other necessary services for Common Area, and to own and/or manage for the benefit of Wedgewood all water and water rights, ditch and ditch rights, and storage and storage rights, if any, and rights to receive water held by the Association, if any, whether such rights are evidenced by license, permit, claim, decree, stock ownership or otherwise;
5.5.2.7 Insurance Obtain insurance from any reputable insurance company authorized to do business in the State of Idaho, and maintain In effect any insurance policy the Board deems necessary or advisable, and to the extent possible to obtain, including, without limitation the following policies of insurance;
5.5.2.7.1 Fire insurance including those risks embraced by coverage of the type known as the broad form ‘All Risk” or special extended coverage endorsement on a blanket agreed amount basis for the full insurable replacement value of all Improvements, equipment and fixtures located within Common Area;
5.5.2.7.2 Comprehensive public liability insurance insuring the Board, the Association, Grantor, and their agents and employees, invitees and guests of each of the foregoing against any liability incident to the ownership and/or use of Common Area. Limits on liability of such coverage shall be as follows: Not less than One Million Dollars ($1,000,000) per person and One Million Dollars ($1,000,000) per occurrence with respect to personal injury or death, and One Million Dollars ($1,000,000) per occurrence with respect to property damage;
5.5.2.7.3 Full coverage directors’ and officers’ liability Insurance with a limit of at least Two Hundred Fifty Thousand Dollars ($250,000);
5.5.2.7.4 Such other insurance, including motor vehicle insurance and worker’s compensation insurance, to the extent necessary to comply with all applicable laws, and indemnity, faithful performance, fidelity and/or other bonds as the Board shall deem necessary or required to carry out the Association functions or to insure the Association against loss from malfeasance or dishonesty of any employee or other Person charged with the management or possession of any Association funds or other property;
5.5.2.7.5 The Association shall be deemed trustee of the interests of all Owners in connection with any insurance proceeds paid to the Association under such policies, and shall have full power to receive such Owner’s interests in such proceeds and to deal therewith; and
5.5.2.7.6 Insurance premiums for the above Insurance coverage shall be deemed a common expense to be included In the Regular Assessments levied by the Association.
5.5.2.8 Rule Making Make, establish, promulgate, amend and repeal the Association Rules as the Board shall deem advisable;
5.5.2.9 Newsletter If the Association so elects, prepare and distribute a newsletter on matters of general interest to Association Members, the cost of which shall be included in Regular Assessments;
5.5.2.10 Architectural Committee Appoint and remove members of the Architectural Committee, subject to the provisions of this Declaration; and
5.5.2.11 Enforcement of Restrictions and Rules Perform such other acts, whether or not expressly authorized by this Declaration, as may be reasonably advised or necessary to enforce any of The provisions of the Project Documents and any and all state or local laws, ordinances, rules and regulations. Also including, without limitation, the recordation of any claim of lien with the Ada County Recorder’s Office, as more fully provided herein.
5.6 Annual Meeting The Association shall hold an annual meeting each year and the first annual meeting shall be held during the month of May of the first calendar year following the first sale of a Building Lot in the Property. Subsequent regular annual meetings of the Association shall be held as provided in the Bylaws of the Association. Special meetings may be called as provided for In the Bylaws of the Association. Notice of annual or special meetings of the Association shall be delivered to all Members of the Association as provided in the Bylaws of the Association. All meetings shall be held within the Property or as close thereto as practicable at a reasonable place selected by the Board.
5.7 Budgets and Financial Statements Financial statements for the Association shall be prepared regularly and, upon request, copies shall be distributed to each Member of the Association as follows:
5.7.1 A pro forma operating statement or budget representing the Association for an Owner, for each fiscal year shall be available for distribution not less than sixty (60) days before the beginning of each fiscal year. The operating statement shall Include a schedule of Assessments received and receivable.
5.7.2 Within ninety (90) days after the close of each fiscal year, the Association shall cause to be prepared and available to each Owner, a balance sheet as of the last day or the Association’s fiscal year for the Association and annual operating statement reflecting the income and expenditures of the Association for its fiscal last year. Copies of the balance sheet and operating statement shall be available for distribution to each Member within ninety (90) days after the end of each fiscal year.
5.8 Manager The Association may employ or contract for the services of a professional manager or management company, provided that no such employment or contract shall have a term of more than one (1) year, and each such contract shall be subject to cancellation by the Association up to thirty (30) days notice, with or without cause, and without payment of a termination fee. The professional manager so employed or contracted with shall not have the authority to make expenditures chargeable against the Association except upon specific prior written approval and direction by the Board, The Board shall not be liable for any omission or improper exercise by such a professional manager of any such duty, power or function so delegated by or on behalf of the Board.
5.9 Personal Liability No Member of the Board, or member of any committee of the Association, or any officer of the Association, or Grantor, or the manager, if any, shall be personally liable to any Owner, or to any other party Including, without limitation, the Association, for any damage, loss or prejudice suffered or claimed on the account of any act, omission, error or negligence of the Association, the Board, the manager, if any, or any officer, committee, or other representative or employee of the Association, Grantor, the Architectural Committee, provided that such Person, upon the basis of such information as may be possessed by such Person, has acted In good faith without willful or intentional negligence and/or misconduct.
5.10 Security The Association may, but shall not be obligated to, maintain or support certain activities within the Property designed to make the Property safer than otherwise might be. Neither the Association, Grantor, nor any successor of Grantor shall in any way be considered insurers or guarantors of security within the Property, nor shall any of them be held liable for any toss or damage by reason of failure to provide adequate security or of ineffectiveness of security measures undertaken. No representation or warranty is made that any fire protection system, burglar alarm system or other security system cannot be compromised or circumvented, nor that any such systems or security measures undertaken will in all cases prevent loss or provide the detection or protection for which the system is designed or intended. Each Owner acknowledges, that the Association, Grantor, and any successor of Grantor are not insurers and that each person using the Property assumes all risks for loss or damage to persons, property, Building Lots, to Common Area, and to the contents of Building Lots resulting from acts of third parties.
Article VI: Rights to Common Areas
6.1 Use of Common Area Every Owner, unless expressly designated otherwise by Grantor in a Supplemental Declaration, shall have a right to use each parcel of Common Area, which right shall be appurtenant to and shall pass with the title to every Building Lot subject to the following provisions:
6.1.1 The right of the Association holding or controlling such Common Area to levy and Increase Assessments for the construction, protection, maintenance, repair, management and operation of Improvements on Common Area, including the right to Special Assessments;
6.1.2 The right of the Association to suspend the voting rights and rights of use, or interest in, Common Area by an Owner for any period during which any Assessment or charge against such Owner’s Building Lot remains unpaid, and for a period not to exceed sixty (60) days for any infraction of the Association Rules;
6.1.3 The right of the Association to dedicate or transfer all or any part of Common Area to any public agency, authority or utility or other Person as provided further herein;
6.1.4 The right of the Association to prohibit the construction of improvements on all Common Areas;
6.1.5 The right of the Association to adapt rules regulating the use and enjoyment of the Common Area to occupants of Building Lots and their guests; and
6.1.6 The Common Area cannot be mortgaged or conveyed without the approval of Owners, excluding Grantor, of at least two-thirds (2/3 of the total voting power In the Association as cast by the Delegates. If Ingress or egress to any Building Lot is through Common Area, any conveyance or encumbrance of Common Area shall be subject to an easement of Owners of such Building Lots for the purpose of ingress and egress.
6.2 Designation of Common Area Grantor shall designate and reserve Common Area in the Declaration, Supplemental Declarations and/or recorded Plats, deeds or other instruments.
6.3 Delegation of Right to Use Any Owner may delegate, in accordance with the Project Documents, such Owner’s right of enjoyment to Common Area, to the members of such Owner’s family In residence, and such Owner’s tenants or contract purchasers who reside on such Owner’s Building Lot, As provided above, only the Association shall have the right to delegate the right of enjoyment to Common Area to the general public.
6.4 Damages Each Owner shall be fully liable for any damage to any Common Area which may be sustained by reason of the negligence or willful misconduct of the Owner, such Owner’s resident tenant or contract purchaser, or such Owner’s family or guests, both minor and adult. In the case of joint ownership of a Building Lot the liability of such Owners shall be joint and several, The cost of correcting such damage shall be Limited Assessment against such Owner(s) Building Lot(s) and may be collected as provided herein for the collection of other Assessments.
7.1 Covenant to Pay Assessments By acceptance of a deed to any Building Lot, each Owner of such Building Lot, thereby 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 provision of this Declaration, any Supplemental Declaration or other applicable Project Document.
7.1.1 Assessment Constitutes Lien Such Assessments and charges together with late charge(s), interest, costs and reasonable attorneys fees which may be incurred in collecting the same, and shall be a continuing lien upon the property against which each such Assessment or charge is made.
7.1.2 Assessment is Personal Obligation Each such Assessment, together with late charge(s), interest, casts and reasonable attorneys’ fees, shall also be the personal obligation of the Owner of such property beginning with the time when the Assessment f due. No Owner shall be exempt from such obligation by a waiver of the use and enjoyment of Common Area or by lease or abandonment of such Owner’s Building Lot.
No Owner may exempt such Owner from liability for Assessments, by nonuse of Common Area, abandonment of such Owner’s Building Lot, or any other means. The obligation to pay Assessments is a separate and independent covenant on the part of each Owner. No diminution or abatement of Assessments or set-off shall be claimed or allowed for any alleged failure of the Association or Board to take some action or perform some function required of it, or for Inconvenience or discomfort arising from the making of repairs or improvements, or from any other action it takes.
7.2 Uniform Rate of Assessment All Assessments must be fixed at a uniform rate for each type of Building Lot.
7.3 Date of Commencement of Assessments The obligation to pay Assessments shall commence as to each Building Lot on the first day of the month following: (1) the month In which the Building Lot is made subject to this Declaration; or (2) the month In which the Board first determines a budget and levies Assessments pursuant to this Article, whichever is later. The first annual Regular Assessment levied on each Building Lot shall be adjusted according to the number of months remaining in the fiscal year at the Lime Assessments commence on the Building Lot.
7.4 Exempt Property The following property shall be exempt from payment of Regular Assessments and Special Assessments:
(a) all Common Area;
(b) any property dedicated to and accepted by any governmental authority or public utility; and
(c) any property held by a conservation trust or similar nonprofit entity as a conservation easement, except to the extent that any such easement lies within the boundaries of a Building Lot which is subject to Assessment (in which case the Building Lot shall not be exempted from Assessment).
7.5 Capitalization of Association Upon acquisition of record title to a Building Lot by the first Owner thereof other than Grantor or a builder, a contribution shall be made by or on behalf of the purchaser to the working capital of the Association in an amount equal to one-half of annual Regular Assessment per Building Lot for that year. This amount shall be in addition to, not in lieu of, the annual Regular Assessment and shall not be considered an advance payment of such Assessment. This amount shall be deposited into the purchase and sales escrow and disbursed there from to the Association for use in covering operating expenses and other expenses incurred by the Association pursuant to the terms of this Declaration and the Project Documents.
7.6 Regular Assessments All Owners are obligated to pay Regular Assessments to the treasurer of the Association on a schedule of payments established by the Board.
7.6.1 Purposes of Regular Assessments The proceeds from Regular Assessments are to be used for all costs and expenses incurred by the Association, including attorney’s fees and other professional fees, for the conduct of such Association affairs, Including without limitation the costs and expenses of construction, Improvement, protection, maintenance, repair, management and operation of Common Areas, including all Improvements located on such areas owned and/or managed and maintained by the Association (the “Operating Expenses”), and an amount allocated to an adequate reserve fund to be used for repair, replacement, maintenance and improvement to those elements of Common Area, or other property o Association that must be replaced and maintained on a regular basis (the “Repair Expenses”). The Operating Expenses and the Repair Expenses are collectively referred to herein as the ‘Expenses.’
7.6.2 Computation of Regular Assessments The Association shall compute the amount of its Expenses on an annual basis. The Board of the Association shall compute and levy the amount of Regular Assessments owed by the Members for the first fiscal year within six (6) months following the month in which the closing of the first sale of a Building Lot occurs in the Property for the purposes of the Association’s Regular Assessment (“initiation Dater). Thereafter, the computation of Regular Assessments by the Association shall take place not less that thirty (30) nor more than sixty (60) days before the beginning of each fiscal year of the Association. The computation of the Regular Assessment for the period from the Initiation Date until the beginning of the next fiscal year shall be reduced by an amount which fairly reflects the fact that such period was less than one (1) year. The Association Is specifically authorized to enter into subsidy contracts or contracts for ”in kind” contribution of services, materials, or a combination of services and materials with Grantor or other entities for payment of Expenses.
If the proposed budget Is disapproved or the Board falls for any reason to determine the budget for any year, then until such time as a budget is determined, the budget in effect for the immediately preceding year shall continue Ear the current year. The Regular Assessment shall be set at a level which is reasonably expected to produce total income for the Association equal to the total budgeted expenses, including reserves, in determining the level of Assessments, the Board, in its discretion, may consider other sources of funds available to the Association, in addition, the Board shall take into account the number of Building Lots subject to Assessment on the first day of the fiscal year for which the budget Is prepared and the number of Building Lots reasonably anticipated to become subject to Assessment during the fiscal year.
7.6.3 Amounts Paid by Owners The Board can require, in its discretion or as provided in the Project Documents, payment of Regular Assessments to the Association in monthly, quarterly, semi annual or annual installments, Regardless of the Installment schedule adopted by the Board, the Board may bill for Assessments monthly, quarterly, semiannually or annually, at its sole discretion. The Regular Assessments to be paid by any particular Owner for any given fiscal year shall be computed as follows: each Owner, except for Grantor, shall be assessed and shall pay an amount computed by multiplying the Association’s total advance estimate of Expenses by the fraction produced by dividing the Building Lots in the Property subject to this Declaration.
7.7 Grantor’s Obligation for Assessments While Grantor is a Class B Member, Grantor may annually elect either to pay regular Assessments on its unsold Building Lots, or to pay the difference between the amount of Assessments collected on all other Building Lots subject to Assessment and the amount of actual expenditures by the Association during the fiscal year. Unless Grantor otherwise notifies the Board in writing at least sixty (60) days before the beginning of each fiscal year, Grantor shall be deemed to have elected to continue paying on the same basis as during the immediately preceding fiscal year. Regardless of such election, the Association shall have a lien against all Building Lots owned by Grantor to secure Grantor’s obligations under this Section, which lien shall have the same attributes and shall be enforceable in the same manner as the Association’s lien against other Building Lots under this Article. Grantor’s obligations and/or payments hereunder may be satisfied in the form of cash or by “in kind” contributions of services or materials, or by a combination of these.
So long as Grantor has the right unilaterally to annex additional property pursuant hereto, Grantor may, but shall not be obligated to make payment of a subsidy (in addition to any amounts paid by Grantor under this Section), which may be either a contribution, an advance against future Assessments due from Grantor, or a loan, in Grantor’s discretion. Any such subsidy and the nature thereof shall be conspicuously disclosed as a line tern in the expense budget and shall be made known to the Membership. The payment of such subsidy in any year shall under no circumstances obligate Grantor to continue payment of such subsidy in future years, unless otherwise provided in a written agreement between the Association and Grantor.
7.8.1 Purpose and Procedure In the event that the Board shall determine that the Regular Assessment for a given calendar year Is or will be inadequate to meet the Expenses for any reason, including, without limitation, costs of construction, Improvement, protection, maintenance, repair, management and operation of improvements upon Common Area, attorney’s fees and/or litigation costs, other professional fees, or for any other reason, the Board thereof shall determine the approximate amount necessary to defray such Expenses and levy a Special Assessment against the portions of the Property within its jurisdiction which shall be computed in the same manner as Regular Assessments. The Board shall, in its discretion, determine the schedule under which such Special Assessment will be paid.
7.8.2 Consistent Basis of Assessment Every Special Assessment levied by and for the Association shall be levied and paid upon the same basis as that prescribed for the levying and payment of Regular Assessments for the Association.
7.9 Limited Assessments Notwithstanding the above provisions with respect to Regular and Special Assessments, a Board of the Association may levy a Limited Assessment against a Member as a remedy to reimburse the Association for costs incurred in bringing the Member and/or such Member’s Building Lot Into compliance with the provisions of the Project Documents or for damage caused by the Owner, or any of such Owner’s family, representatives or Invitees, to any Common Area or any other portion of the Property.
7.10 Assessment Period Unless otherwise provided in the Project Documents, the Assessment period for the Association, shall be determined by the Board. The first Assessment shall be prorated according to the number of months remaining In the fiscal year and shall be payable in equal installments.
7.11 Notice and Assessment Due Date Thirty (30) days prior written notice of Regular and Special Assessments shall be sent by the Association to the Owner of every Building Lot subject there to, and to any Person in possession of such Building Lot. The due dates for installment payments of Regular Assessments and Special Assessments shall be the first day of each month unless some other due date is established by the Board. Each monthly installment of the Regular Assessment or Special Assessment shall become delinquent If not paid within ten (10) days after due. There may accrue, solely at the Board’s discretion, on each delinquent Installment payment a late charge equal to ten percent (10%) of the delinquent installment In addition, there may accrue, solely at the Board’s discretion, on each installment payment delinquent for more than twenty (20) days, Interest at eighteen percent (18%) per annum calculated from the date of delinquency to and including the date full payment is received by the Association. The Association may bring an action against the delinquent Owner and may foreclose the lien against such Owner’s Building Lot as more fully provided herein.
7.12 Reserve Budget and Capital Contribution The Board shall annually prepare reserve budgets for general purposes which take Into account the number and nature of replaceable assets, the expected life of each asset, and the expected repair or replacement cost. The Board shall set the required capital contribution In an amount sufficient to permit meeting the projected needs of the Association, as shown on the budget, with respect both to amount and timing by annual Regular Assessments over the budget period.
7.13 Estoppel Certificate The Association, upon at least twenty (20) days prior written request, shall execute, acknowledge and deliver to the party making such request, a statement In writing stating whether, to the knowledge of the Association, a particular Owner is In default under the provisions of this Declaration, and further stating the dates through which any Assessments have been paid by such Owner. Any such statement delivered pursuant to this Article may be relied upon by any prospective purchaser or mortgagee of Owner’s Building Lot. Reliance on such statement may not extend to any default of such Owner of which the signor of such statement shall have had no actual knowledge.
7.14 Special Notice and Quorum Requirements Notwithstanding anything to the contrary contained In the Project Documents, written notice of any meeting called for the purpose of levying a Special Assessment by the Association, or for the purpose of obtaining a membership vote in connection with an increase in the Regular Assessment shall be sent to all Members of the Association and to any Person in possession of a Building Lot, not less than fifteen (15) days nor more than thirty (30) days before such meeting. At the first such meeting called, the presence of voting Members or of proxies entitled to cast sixty percent (60%) to the total votes of the Association shell constitute a quorum. If such quorum i5 not present, subsequent meetings may be called subject to the same notice requirements, and the required quorum at the subsequent meetings shall be fifty percent (50%) of the quorum required at the preceding meeting. No such subsequent meeting shall be held more than thirty (30) days following the preceding meeting.
Article VIII: Enforcement of Assessments; Liens
8.1 Right to Enforce The Association has the right to collect and enforce Assessments pursuant to the provisions hereof. Each Owner of a Building Lot, upon becoming an Owner of such Building Lot, shall be deemed to covenant and agree to pay each and every Assessment provided for in this Declaration and agrees to the enforcement of all Assessments in the manner herein specified. In the event an attorney or attorneys are employed for the collection of any Assessment, whether by suit or otherwise, or to enforce compliance with or specific performance of the terms, and conditions of this Declaration, each Owner agrees to pay reasonable attorney’s fees in addition to any other relief or remedy obtained against such Owner. The Board or Its authorized representative(s) may enforce the obligations of Owners to pay such Assessments by commencement and maintenance of a suit at law or in equity to enforce the liens created hereby. A suit to recover a money judgment for an unpaid Assessment shall be maintainable without foreclosing or waiving the lien hereinafter provided.
8.2.1 Creation There is hereby created a claim of lien on each and every Building Lot to secure payment of any and all Assessments levied against such Building Lot pursuant to this Declaration together with interest thereon at the maximum rate permitted by law and all costs of collection which may be paid or incurred by the Association making the Assessment in connection therewith, including reasonable attorney’s fees. All sums assessed in accordance with the provisions of this Declaration shall constitute a lien on such respective Building Lots upon recordation of a claim of lien with the Ada County Recorder’s Office. Such Hen shall be prior and superior to all other liens or claims created subsequent to the recordation of the notice of delinquency and claim of lien except for tax liens for real property taxes on any Building Lot and Assessments on any Building Lot in favor of any municipal or other governmental assessing body which, by law, would be superior thereto.
8.2.2 Claim of Lien Upon default of any Owner In the payment of any Regular, Special or Limited Assessment issued hereunder, the Association may cause to be recorded in the Ada County Recorder’s Office a claim of lien. The claim of lien shall state the amount of such delinquent sums and other authorized charges (including the cost of recording such notice), a sufficient description of the Building Lot(s) against which the same have been assessed, and the name of the record Owner thereof. Each delinquency shall constitute a separate basis for a notice and claim of lien, but any number of defaults may be included within a single notice and claim of lien. Upon payment to the Association of such delinquent sums and charges in connection therewith or other satisfaction thereof, the Association shall cause to be recorded a further notice stating the satisfaction of relief of such delinquent sums and charges. The Association may demand and receive the cost of preparing and recording such release before recording the same.
8.3 Method of Foreclosure Such lien may be foreclosed by appropriate action in court.
8.4 Subordination to Certain Trust Deeds The lien for the Assessments provided for herein in connection with a given Building Lot shall not be subordinate to the lien of any deed of trust or mortgage except the lien of a First Mortgage given and made in good faith and for value that is of record as an encumbrance against such Building Lot prior to the recordation of a claim of lien for the Assessments. Except as expressly provided in this Article, with respect to a first mortgagee who acquires title to a Building Lot, the sale or transfer of any Building Lot shall not affect the Assessment lien provided for herein, nor the creation thereof by the recordation of a claim lien, on account of the Assessments becoming due whether before, on, or after the date of such sale or transfer, nor shah such sale or transfer diminish or defeat the personal obligation of any Owner for delinquent Assessments as provided for In this Declaration.
Article IX: Inspection of the Association’s Books and Records
9.1 Member’s Right of Inspection The membership register, books of account and minutes of meetings of the Board and committees of the Association shall be made available for inspection and copying by any Member of the Association or by such Members duly appointed representatives, at any reasonable time and for a purpose reasonably related to such Member’s interest as a Member at the office of the Association or at such other place as the Board of the Association shall prescribe. No Member or any other Person shall copy the membership register for the purposes of solicitation of or direct mailing to any Member of the Association.
9.2 Rules Regarding Inspection of Books and Records The Board of the Association shall establish reasonable rules with respect to: notice to be given to the custodians of the records by the Persons desiring to make the inspection; hours and days of the week when such inspection may be made; and payment of the cost of reproducing copies of documents requested pursuant to this Article.
9.3 Director’s Rights of Inspection Every director of the Board of the Association shall have the absolute right at any reasonable time to inspect all books, records and documents of the Association and the physical properties owned or controlled by the Association. The right of inspection by a director includes the right to make extracts and copies of documents.
Article X: Architectural Committee
10.1 Architectural Committee Creation: Right of Appointment Before or within thirty (30) days after the date on which Grantor first conveys a Building Lot to an Owner, Grantor shall appoint three (3) Individuals to serve on the Wedgewood Architectural Committee (the “Architectural Committee”), which Architectural Committee shall have exclusive jurisdiction over all original construction on any portion of the Property or any other real property annexed as provided further herein, and over all modifications, additions, or alterations made on or to existing structures on Building Lots. Until one hundred percent (100%) of the Property has been developed and conveyed to Owners other than builders, Grantor retains the right to appoint all members of the Architectural Committee who shall serve at Grantor’s discretion. There shall be no surrender of this right prior to that time except in a written Instrument In recordable form executed by Grantor. Upon the expiration of such right, the Board shall appoint the members of the Architectural Committee, who shall serve and may be removed in the Board’s discretion.
10.2 Vacancies if a vacancy on the Architectural Committee occurs and a permanent replacement has not yet been appointed, Grantor or the Board, as the case may be, may appoint an acting member of the Architectural Committee to serve for a specified temporary period not to exceed one (1) year. A member of the Architectural Committee need not be an Owner Members of the Architectural Committee may be removed by the Person appointing them at any time without cause, The Architectural Committee shall review, study, and either approve or reject the proposed Improvements on the Property, all in compliance with the Declaration, any Supplemental Declaration, the Architectural Guidelines and the Project Documents, The actions of the Architectural Committee, in the exercise of its discretion by its approval or disapproval of the proposed Improvements on the Property, or with respect to any other matter before it, shall be conclusive and binding on all interested parties.
10.3 Appointment of Architectural Committee Representative The Architectural Committee may appoint in writing one (1) of its members to act as its designated representative (the “Committee Representative”). The Committee Representative may be delegated all duties and obligations of the Architectural Committee. In the event a Committee Representative is appointed, it is Intended that the Architectural Committee shall look to the Committee Representative to perform all functions of the Architectural Committee, provided however, the Architectural Committee shall make all final determinations and decisions regarding all Architectural Committee duties and obligations. Any action or decision made by two (2) members of the Architectural Committee shall be a binding decision of the entire Architectural Committee.
10.4 Improvements Generally 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. This Declaration is Intended to serve as authority for the Architectural Committee to use such Committee’s judgment to see that all Improvements conform and harmonize as to external design, quality and type of construction, architectural character, materials, color, location on the Property, height, grade and finished ground elevation, natural conditions, landscaping, and all aesthetic considerations as set forth in this Declaration and in the Architectural Guidelines.
Grantor and the Architectural Committee shall draft the Architectural Guidelines for the construction and reconstruction of all Improvements on the Property. No Improvements on any portion of the Property shall be constructed, reconstructed, placed or removed from the Property without prior written consent of the Architectural Committee. The Architectural Guidelines shall be used and drafted by the Architectural Committee to ensure that all Improvements conform and harmonize as to external design, quality and type of construction, architectural character, materials, color, location on the Building Lot, height, grade and finish ground elevation, natural conditions, landscaping and all aesthetic considerations, including guidelines designed to protect the special qualities and Community-Wide Standard of Wedgewood, and to encourage creative design, by providing general architectural, design and construction guidelines (including building envelope guidelines), landscape guidelines (including a description of existing, natural conditions and vegetation), submittal and review procedures, and fees and charges for review. The Architectural Guidelines shall be drafted to conform to this Declaration. In the event of a conflict between the Architectural Guidelines and this Declaration, this Declaration shall govern. The content of the Architectural Guidelines, may be modified and amended from time to time as provided in the Architectural Guidelines, and in all events can be modified and changed by a majority vote of the Board. Nothing contained In this Article limits any Owner’s obligation and duty to ensure that such Owner’s Building Lot Improvements are in compliance with this Declaration, any Supplemental Declaration, the Architectural Guidelines, any other Project Documents or applicable State or local laws.
10.5 Review of Proposed Construction The Architectural Committee shall consider and act upon any and all proposals or plans and specifications submitted for its approval pursuant to this Declaration, and shall inspect construction in progress to assure its conformance with plans approved by the Architectural Committee. The Architectural Committee shall have the power to hire an architect, licensed with the State of Idaho, to assist the Architectural Committee In its review of proposals or plans and specifications submitted to the Architectural Committee, The Architectural Committee shall approve proposals or plans and specifications submitted for its approval only if It deems that the construction, alterations or additions contemplated thereby in the locations indicated will not be detrimental to the appearance of the surrounding area of the Property as a whole, that the appearance of any structure affected thereby will be in harmony with the surrounding structures, and that the upkeep and maintenance thereof will not become a burden upon other Owners.
10.5.1 Conditions on Approval The Architectural Committee may condition its approval of proposals or plans and specifications upon such changes there as it deems appropriate and/or upon the agreement of the Owner submitting the same (the “Applicant”) to grant appropriate easements for the maintenance thereof, and may require submission of additional plans and specifications or other information before approving or disapproving material submitted.
10.5.2 Rules and Fees The Architectural Committee also may establish rules and/or guidelines setting forth procedures for and the required content of the applications and plans submitted for approval. The rules shall require a fee of $650.00 (or such other amount as the Architectural Committee may reasonably determine to be appropriate) to accompany each app for approvals and may include additional factors which it will take into consideration in reviewing submissions. The Architectural Committee shell determine the amount of such fee (If other than $650.00) in a reasonable manner. Such fees shall be used to defray the costs and expenses of the Architectural Committee, including the cost and expense of hiring an architect licensed by the State of Idaho, as provided above, and such fee shall be refundable to the extent not expended for the purposes herein stated. If plans submitted are the same or substantially similar to plans previously approved by the Architectural Committee, fees may be reduced for such application approvals.
Such rules and guidelines may establish, without limitation, specific rules and regulations regarding design and style elements, landscaping and fences and other structures such as animal enclosures as well as special architectural guidelines applicable to Building Lots located adjacent to public and/or private open space.
10.5.3 Detailed Plans The Architectural Committee may require such detail in plans and specifications submitted for its review as it deems proper Including without Imitation, floor plans, site plans, landscape plans, drainage plans, elevation drawings and descriptions or samples of exterior material and colors. Until receipt by the Architectural Committee of any required plans and specifications, the Architectural Committee may postpone review of any plan submitted for approval.
10.5.4 Committee Decisions Decisions of the Architectural Committee and the reasons therefore shall be transmitted by the Architectural Committee to the Applicant at the address set forth in the application for approval within twenty (20) days after filing all materials required by the Architectural Committee. Any materials submitted pursuant to this Article X shall be deemed approved unless written disapproval by the Architectural Committee shall have been mailed to the Applicant within twenty (20) days after the date of filing said materials with the Architectural Committee.
10.5.5 Certification by Secretary 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 approval, completion, or compliance by the Secretary of the Association showing that the plans and specifications for the improvement or other matters therein provided for have been approved and/or that said improvements have been made in accordance therewith shall be inclusive evidence that shall fully justify and protect any title company certifying, 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 such certificate, and shall fully protect any purchaser or encumbrancer from any related action or suit under this Declaration.
10.6 Meetings of the Committee The Architectural Committee shall meet from time to time as necessary to perform its duties hereunder. The Architectural Committee may from time to time by resolution unanimously adopted in writing, designate an Architectural Committee representative (who may, but need not be one of Its members) to take any action or perform any duties for and on behalf of the Architectural Committee, except the granting of variances as provided further below. In the absence of such designation, the vote of any two (2) members of the Architectural Committee, or the written consent of any two (2) members of the Architectural Committee taken without a meeting, shall constitute an act of the Architectural Committee.
10.7 No Waiver of Future Approvals The approval of the Architectural Committee of any proposals or plans and specifications or drawings for any work done or proposed, or in connection with any other matter requiring the approval and consent of the Architectural Committee shall not be deemed to constitute a waiver of any right to withhold approval or consent as to any similar proposals, plans and specifications, drawings or matter whatever subsequently or additionally submitted for approval or consent.
10.8 Compensation of Members The members of the Architectural Committee shall receive no compensation for services rendered, other than reimbursement from the Applicant for expenses incurred by them in the performance of their duties hereunder,
10.9 Inspection of Work Inspection of work and correction of defects therein shall proceed as follows:
10.9.1 Upon the completion of any work for which approved plans are required under this Article, the Owner shall give written notice of completion to the Architectural Committee.
10.9.2 Within sixty (60) days thereafter, the Architectural Committee or Its duly authorized representative may Inspect such improvement If the Architectural Committee finds that such work was not done in substantial compliance with the approved plans, it shall notify the Owner in writing of such noncompliance within such sixty (60) day period, specifying the particular noncompliance, and shall require the Owner to remedy the same.
10.9.3 It upon the expiration of thirty (30) days from the date of such notification, or any longer time the Architectural Committee determines to be reasonable, the Owner shall have failed to remedy such noncompliance, the Architectural Committee, at its option, may remove the noncomplying improvement or otherwise remedy the noncompliance, and the Owner shall reimburse the Architectural Committee, upon demand, for all expenses incurred In connection therewith.
10.9.4 If for any reason the Architectural Committee fails to notify the Owner of any non compliance within sixty (60) days after receipt of the written notice of completion from the Owner, the work shall be deemed to be in accordance with the approved plans.
10.10 Non-Liability of Architectural Committee Members Approval by the Architectural Committee shall not imply that Improvements meet any applicable federal, state and/or local laws and ordinances, and does not assure approval of the improvements by any appropriate governmental or quasi- governmental agency, board or commission. Applicant and for Owner shall ensure that such Improvements meet any and all applicable federal, state and/or local laws and ordinances. Notwithstanding that the Architectural Committee has approved Improvements, plans and specifications, neither the Architectural Committee nor any of its members shall be responsible or liable to any Person, Owner, or Grantor with respect to any loss, liability, claim c expense which may arise by reason of such approval of the Improvements, unless due to the willful misconduct or bad faith of the Architectural Committee. Neither the Association, Architectural Committee nor any agent thereof nor Grantor nor any of its partners, employees, agents or consultants shall be responsible in any way for any defects in any plans or specifications submitted, revised or approved in accordance with the provisions of the Architectural Guidelines, nor for any structural or other defects in any work done according to such plans and specifications. In any and all events, the Architectural Committee shall be defended, indemnified and held harmless by the Association in such suit or proceeding which may arise in connection with a Architectural Committee decision. The Association, however, shall not be obligated to defend, indemnify and hold harmless any member of the Architectural Committee to the extent any such member of the Architectural Committee shall be adjudged to be liable for willful misconduct or bad faith In the performance of such member’s duty as a member of the Architectural Committee, unless and only to the extent that a court in which such action or suit may be brought shall determine that, in view of all circumstances of the case, such member Is fairly and reasonably entitled to indemnification and defense for such expenses if such court shall deem it proper.
10.11 Variances The Architectural Committee may authorize variances from compliance with any of the Architectural Guidelines, including restrictions upon height, size, floor area or placement of structures, or similar restrictions, when circumstances such as topography, natural obstructions, hardship, aesthetic or environmental considerations may require. Such variances must be evidenced in writing, and must be signed by at least two (2) members of the Architectural Committee. if such variances are granted, no violation of the covenants, conditions and restrictions contained In this Declaration, or the Architectural Guidelines shall be deemed to have occurred with respect to the matter for which the valiance was granted, The granting of such a variance shall not operate to waive any of the terms and provisions of this Declaration or the Architectural Guidelines for any purpose except as to the particular Building Lot and particular provision 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 Property, including but limited to zoning ordinances and lot setback lines or requirements imposed by governmental or municipal authority.
10.12 Enforcement Any Improvement placed or made in violation of this Article shall be deemed to be nonconforming. Upon written request from the Board or Grantor, such offending Owner shall, at its own cost and expen5e, remove such Improvement or restore the land to substantially the same condition as existed prior to the nonconforming work. Should an Owner fail to remove and restore as required, the Board or its designees shall have the right to enter the Building Lot, remove the violation, and restore the Building Lot to substantially the same condition as previously existed. All costs, together with the interest at the maximum rate then allowed bylaw, may be assessed against the Building Lot and collected as a Limited Assessment.
Any contractor, subcontractor, agent, employee, or other invitee of an Owner who fails to comply with the terms and provisions of the Declaration and the Architectural Guidelines may be excluded by the Board from the Property. In such event, neither the Association, its officers, or directors shall be held liable to any Person for exercising the rights granted hereunder. in addition to the foregoing, the Association shall have the authority and standing to pursue all legal and equitable remedies available to enforce the provisions of the Declaration and the decisions of the Architectural Committee.
10.13 Grantor’s Exemption Any and all Improvements constructed by Grantor on or to the Property are not subject to review and approval by the Architectural Committee.
Article XI; Easements/Licenses
11.1 Owners: Easements of Environment Every Owner shall have a nonexclusive easement for the use and enjoyment of Common Area which shall be appurtenant to and shall pass with the title to every Building Lot, subject to the easements set forth in this Declaration, as supplemented and amended from time to time.
11.2 Delegation of Use Any Owner may delegate, in accordance with the Project Documents, such Owner’s right of enjoyment in Common Area, to such Owner’s tenants, employees, family, guests or invitees.
11.3 Recorded Easements The Property, and all portions thereof, shall be subject to all easements shown on any recorded Plat affecting the Property, or any portion thereof, and to any other easements of record or of use as of the date of recordation of this Declaration, as supplemented and amended from time to time.
11.4 Easements of Encroachment There shall be reciprocal appurtenant easements of encroachment as between each Building Lot and such portion or portions of Common Area adjacent thereto, or as between adjacent Building Lots, due to the inadvertent placement or settling or shifting of Improvements including, without limitation, structures, walkways, sidewalks and driveways constructed, reconstructed or altered thereon in accordance with the terms of this Declaration. Easements of encroachment shall be valid only so long as they exist, and the rights and obligations of Owners shall not be altered in any way because of encroachments, settling or shifting of the Improvements; provided, however, that In no event shall a valid easement for encroachment occur due to the willful or bad faith act(s) of an Owner. In the event a structure on any Building Lot is partially or totally destroyed, and then repaired or rebuilt, Owners of each Building Lot agree that minor encroachments within and over adjoining Building Lots that existed prior to the encroachment may be reconstructed pursuant to the easement granted by this Section.
11.5 Easements of Access Grantor expressly reserves for the benefit of all the Property reciprocal easements of ingress and egress for all Owners to, from over and across their respective Building Lots for installation and repair of utility services, for drainage of water over, across and upon adjacent Building Lots and Common Areas resulting from the normal use of adjoining Building Lots and Common Areas, and for necessary construction, maintenance and repair of any improvement including, without limitation, fencing, retaining walls, lighting facilities, mailboxes and sidewalk abutments, trees, pathways and landscaping. Such easements may be used by Grantor, and be all Owners, their guests, tenants and invitees, residing on or temporarily visiting the Property, for pedestrian walkways, vehicular access and such other purposes reasonable necessary for the use and enjoyment of a Building Lot or Common Area.
11.6 Drainage and Utility Easements Notwithstanding anything expressly or impliedly contained to the contrary, the Property shall be subject to all easements heretofore or hereafter granted by Grantor for the installation and maintenance of utilities and/or drainage facilities that are required for the development of the Property. in addition, Grantor hereby reserves for the benefit of any Association the right to grant additional easements and rights-of-way over the Property, to utility companies and/or public agencies as necessary or expedient for the proper development of the Property until close of escrow for the sale of the last Building Lot in the Property.
11.7 Improvement of Drainage and Utility Easement Areas The Owners of Building Lots are hereby restricted and enjoined from constructing or altering any Improvements upon any drainage and/or utility easement areas as shown on the Plat(s) or otherwise designated in any recorded document which would interfere with or prevent the easement from being used for Its intended purpose; provided, however that any Owner, the Association, designated Person or Grantor having interest in the landscaping easement described in this Article, shall be entitled to install and maintain landscaping on such easement areas, subject to approval by the Architectural Committee, so long as the same would not interfere with or prevent the easement area from being used for their intended purposes: provided further, that any damage sustained to Improvements on the easement areas as a result of legitimate use of the easement area shall be the sole and exclusive obligation of the Owner of the Building Lot where improvements were so damaged, or In the event the easement area where Improvements were so damaged is located In a Common Area, the Association shall be responsible for the damage sustained and may impose a Special Assessment therefore.
11.8 Rights and Duties Concerning Utility Easements The rights and duties of Owners of the Building Lots within the Property with respect to utilities shall be governed by the following:
11.8.1 Wherever utility house connections are installed within the Property, which connections or any portions thereof lie in or upon Building Lots owned by an Owner other than the Owner of the Building Lot served by the connections, the Owner of the Building Lot served by the connections shall have the right, and is hereby granted an easement to the full extent necessary there for, to enter upon any Building Lot or to have their agent enter upon any Building Lot within the Property In or upon which such connections or any portion thereof lie, to repair, replace and generally maintain the connections as and when it may be necessary; and
11.8.2 Whenever utility house connections are installed within the Property, which connections serve more than one Building Lot, the Owner of each Building Lot served by the connections shall be entitled to full use and enjoyment of such portions of such connections as service such Owner’s Building Lot.
11.9 Party Structures Each wall, fence, driveway or similar structure built as a part of the original construction on the Building Lots which serves and/or separates any two adjoining Building Lots shall constitute a party structure. To the extent not inconsistent with the provisions of this Section, the general rules of law regarding party walls and liability for property damage due to negligence or willful acts or omissions shall apply thereto. All Owners who make use of the party structure shall share the cost of reasonable repair and maintenance of such structure equally, If a party structure is destroyed or damaged by fire or other casualty, then to the extent that such damage is not covered by insurance and repaired out of the proceeds of insurance, any Owner who has used the structure may restore it. If other Owners subsequently use the structure, they shall contribute to the restoration cost in equal proportions. However, such contribution will not prejudice the right to call for a larger contribution from the other users under any rule of law regarding liability for negligent or willful acts or omissions. The right of an Owner to contribution from any other Owner under this Section shall be appurtenant to the land and shall pass to such Owner’s successors-in-title.
11.10 Driveway Easements Whenever a party structure that Is a driveway Is installed within the Property which In whole or in part lies upon a Building Lot owned by an Owner other than the Owner of the Building Lot served, or is installed to serve more than one Building Lot, the Owner of each Building Lot served or to be served by such driveway shall be entitled to full use and enjoyment of such other Building Lot as required to service such Owner Building Lot or to repair, replace and maintain such driveway.
The Owners desiring or using such driveway shall, by virtue of the installation of such driveway, automatically agree to provide Maintenance to such driveway, which Maintenance cost shall be shared equally. The Owners may enter into a maintenance agreement not inconsistent with this Section. “Maintenance” of such driveway shall mean and include, without limitation: (a) construction of a concrete or asphalt or other hard surface material driveway in the location agreed upon by such Owners; (b) maintenance and repair of the surface and subsurface of such driveway, as necessary, to maintain such driveway in a relatively level and evenly covered condition at the same grade and elevation as on the date such driveway construction is completed; and (c) removal from such driveway of snow, paper, rubbish and debris.
One or both Owners who have use of such driveway shall have the right, from time to time, to agree with the other Owner to relocate and/or reconfigure all or a portion of such driveway: provided, however, nothing either Owner does in connection with such relocation and/or reconfiguration shall permanently interfere with the free and unimpeded flow of vehicular and pedestrian traffic between the Building Lot(s) and any public and/or private right-of-way beyond the specific time reasonably required to accomplish any permitted relocation and/or reconfiguration. Such Owners agree to comply in all respects with any and all statutes, laws, ordinances, codes, regulations, rules and restrictive covenants In connection with the use of such driveway.
Each such Owner agrees to indemnify, hold harmless and defend the other Owner for and against liability costs and expenses, including reasonable attorney’s fees, for, without limitation: damages, losses, injuries, or death to persons; or damages, infringements or losses to or of property, whether personal, real or intangible; or violations of any statute, law, ordinance, code, regulation or rule of any entity which may be asserted against the other Owner arising out of or in relation to the use and/or maintenance of such driveway by the other Owner, the other Owner’s agents, guests, invitees, successors and assigns. In the event of a breach of any term, covenant, restriction or condition hereunder or under any maintenance agreement, the nonbreaching party shall have, in addition to the right to collect damages, the right to enjoin such breach or threatened breach in a court of competent jurisdiction. Whenever a transfer of ownership of a Building Lot served by such driveway occurs, the liability hereunder or under such maintenance agreement of the transferor for breach of covenant occurring thereafter automatically shall terminate and the transferee shall become liable for the covenants and obligations hereunder or under such maintenance agreement from and after such transfer of ownership.
11.11 General Landscape Easement An easement is hereby reserved to the Association, its contractors, employees, and agents, to enter those portions of Building Lots, for the purpose of installing, maintaining, replacing and restoring exterior landscaping and natural vegetation. Such landscaping activity shall include, by way of illustration and not of limitation, the mowing of lawns, irrigation, sprinkling, tree and shrub trimming and pruning, walkway improvement, seasonal planting and such other landscaping activities within the Property as the Association shall determine to be necessary from time to time.
11.12 Grantor’s Rights Incident to Construction Grantor, for itself and its successors and assigns, hereby retains a right and easement of Ingress and egress over, in, upon, under, and across the Property and the right to store materials thereon and to make such other use thereof as may be reasonably necessary or incident to the construction of the improvements on the Property owned by Grantor provided, however, that no such rights shall be exercised by Grantor In such a way so as to unreasonably interfere with the occupancy, use, enjoyment, or access to an Owner’s Building Lot by that Owner or such Owner’s family, tenants, employees, guests, or invitees,
11.13 Easements Deemed Created All conveyances of Building Lots made after the date of the recording of the Declaration, as amended and supplemented from time to time, whether by Grantor or otherwise, shall be construed to grant and reserve the easements contained In this Article, even though no specific reference to such easement or to this Article appears in the instrument for such conveyance.
11.14 Irrigation Easements Grantor hereby reserves an easement for all pipes, pumps and other equipment over, across, under and through all Building Lots and Common Areas to the extent reasonably required to maintain the Irrigation System. Any relocation of the water lines installed as a part of such system shall not be undertaken in any way which interrupts the flow of water through the system or damages the system in any other fashion.
11.15 Reservation for Expansion Grantor hereby reserves to itself and for Owners of Building Lots of the Property a perpetual easement and right-of-way for access over, upon, across and through the Property for construction, utilities, drainage, ingress and egress, and for use of Common Area for the expansion of Wedgewood. The location of these easements and rights-of-way must be approved by the Board and may be documented by Grantor by recorded instruments.
11.16 Emergency License A general license is hereby extended to all police, sheriffs, fire protection, ambulance, and all other similar emergency agencies or Persons to enter the Property in the proper performances of their duties.
11.17 Maintenance License A license is hereby reserved to Grantor, which may be extended to the Association, and any Member of its Board or manager, if any, and their respective officers, agents, employees, and assigns, upon, across, over, in, and under the Building Lots and a right to make such use of the Building Lots as may be necessary or appropriate to make emergency repairs or to perform the duties and functions which the Association is obligated or permitted to perform pursuant to the Projects Documents, including the right to enter upon any Building Lot for the purpose of performing maintenance to the landscaping or the exterior of Improvements to such Building Lot as required by the Project Documents.
11.18 Association’s Responsibility The Association shall maintain and keep the Common Area and common landscaping along Locust Grove Road in good repair, such maintenance to be funded as provided herein. This maintenance shall include, without limitation, maintenance, repair, and replacement, subject to any insurance then In effect, of all landscaping and other flora, structures, and Improvements situated within Common Area.
Article XII: Irrigation System
12.1 Irrigation System The Property Is located in the Settlers Irrigation District, and irrigation water is supplied by Settler’s Irrigation District to the Zinger Lateral Water Users Association. The Zinger Lateral overflow drain has been or is about to be relocated and piped in a location identified on the Plat and generally described as located on the east side of Building Lots 1 and 2, Block 5; the rear of Building Lots 1, 2 and 3, Block 6; the north side of Building Lot 3, Block 6; the south side of Building Lot 13, Block 6; the rear of Building Lots 5, 6, 7 and B, Block 7; and the west side of Building Lot 5, Block 7, all as shown on the Plat. Such overflow drain assists in supplying irrigation water to Creighton Heights, a subdivision located west of the Property.
Each Building Lot shall have access to a pressured Irrigation water system (the “irrigation System”), which irrigation System shall be supplied with water from the Settler’s Irrigation District into the Zinger Lateral, and which Irrigation System includes that certain pump station located in that certain landscape and irrigation easement located In Building Lot 2, Block 5, as shown on The Plat. It Is contemplated that Grantor shall construct the Irrigation System, and that Grantor may transfer the irrigation System to the Association by describing such transfer on a recorded Plat, or granting or reserving the irrigation System in a deed or other instrument, arm this Declaration arm any Supplemental Declaration. Payments for water use will be collected from each Owner by the Association and will be paid by the Association to the Zinger Lateral Water Users Association. Use of and Assessments In connection with the Irrigation System shall be subject to such rules and regulations of the Association governing use of and Assessments in connection with the Irrigation System as may be adopted by the Association from time to time. Notwithstanding any other provision of this Declaration, if Grantor has transferred the irrigation System to the Association, the Association shall have the right to transfer, sell or convey the irrigation System to a public or private entity, conditioned only upon reasonable assurances that the Irrigation System will be owned, operated and maintained In a manner that will provide service from the Irrigation System to Owners on a continuing basis with quality of service equal to the Community-Wide Standard, and service that meets all applicable governmental laws, ordinances and regulations. For purposes of this Article, Grantor is hereby appointed and made attorney-in-fact for the Association, with full power of attorney to consummate any such transfer of the Irrigation System.
12.2 Nonpotable Water The nonpotable irrigation System contains inherent dangers. Use of the irrigation System shall be subject to such rules, regulations, laws and ordinances as may be adopted and amended from time to time, of the local jurisdiction, State of Idaho, and federal government, If any, and the Association, governing the use of the Irrigation System including, without limitation, all requirements of the “Idaho Rules for Public Drinking Water Systems.” Each Owner shall clearly mark every non-potable water tap on such Owner’s Building Lot with a warning label or sticker, and shall maintain such label or sticker. No Owner, nor any other person claiming right under any Owner, shall cause or allow to be caused, any connection between the domestic water system and the Irrigation System. Cross-connections of any type or kind whatsoever between the non-potable irrigation System and potable water lines are strictly prohibited.
Article XIII: Damage or Destruction
13.1 Association as Attorney in Fact Each and every Owner hereby irrevocable constitutes and appoints the Association as such Owner’s true and lawful attorney-In-fact In such Owner’s name, place, and stead for the purpose of dealing with the improvements on Common Area upon damage or destruction as provided in this Article. Acceptance by any grantee of a deed or other instrument of conv4’ance from Grantor or from any Owner shall constitute appointment of the attorney-in-fact as herein provided. As attorney-in-fact, the Association shall have full and complete authorization, right, and power to make, execute, and deliver any contract, assignment, deed, waiver, or other instrument with respect to the interest of any Owner which may be necessary or appropriate to exercise the powers granted herein to the Association as attorney-in-fact.
13.2 Estimate of Damages or Destruction As soon as practical after an event causing damage to or destruction to any part of Common Area, including, without limitation, the common landscaping along Locust Grove Road, the Association shall, unless such damage or destruction shall be minor, obtain an estimate or estimates that such Association deems reliable and complete of the costs of repair and reconstruction of that part of Common Area so damaged or destroyed “Repair and reconstruction” as used in this Article shall mean restoring the damaged or destroyed Improvements to substantially the same condition in which they existed prior to the damage or destruction.
13.3 Repair and Reconstruction As soon as practical after obtaining estimates, the Association shall diligently pursue to completion the repair and reconstruction of the damaged or destroyed Improvements. As attorney-in-fact for Owners, the Association may take any and all necessary or appropriate action to effect repair and reconstruction, and no consent or other action by any Owner shall be necessary. Assessments of the Association shall not be abated during any period of insurance adjustments and repair and reconstruction.
13.4 Funds for Repair and Reconstruction The proceeds received by the Association from any hazard insurance shall be used for the purpose of repair and reconstruction. if the proceeds of the insurance are Insufficient to pay the estimated or actual costs of such repair and reconstruction, the Association may assess In advance from all Owners a Special Assessment sufficient to provide funds to pay such estimated or actual costs of repair or reconstruction. Further assessments may be made in like manner if the amounts collected prove insufficient to complete such repair and reconstruction.
13.5 Disbursement of Funds for Repair and Reconstruction The insurance proceeds held by the Association and the amounts received from the Special Assessments constitute a fund for the payment of the costs of repair and reconstruction after casualty. It shall be deemed that the first money disbursed in payment for the costs of repair and reconstruction shall be made from insurance proceeds, and the balance from the Special Assessments. If there is a balance remaining after payment of all cost of such repair and reconstruction, such balance shall be distributed to Owners in proportion to the contributions each Owner made as a Special Assessment to the Association under this Article or, If no Special Assessments were made, in equal shares per Building Lot to the Owners.
13.6 Decision Not to Rebuild If Owners representing at least sixty-seven percent (67%) of the total allocated votes within the jurisdiction of the Association of the Building Lots agree in writing not to repair or reconstruct and no alternative improvements are authorized, then and in that event the damaged Common Area shall be restored to its natural state and maintained as an undeveloped portion of Common Area by the Association n a neat and attractive condition, and any remaining Insurance proceeds shall be distributed in equal shares per Building Lot, to the Owners.
13.7 Damage or Destruction Affecting Building Lots In the event of damage or destruction to the improvements located on any of the Building Lots, the Owner thereof shall promptly repair and restore the damaged Improvements to their condition prior to such damage or destruction, If such repair or restoration Is not commenced within one hundred eighty (180) days from the date of such damage or destruction, or if repair or reconstruction Is commenced but then abandoned for a period of more than ninety (90) days, then the Association may impose a fine of not less than fifty dollars ($50) per day on the Owner of the Building Lot until repair and reconstruction is commenced, unless the Owner can prove to the reasonable satisfaction of the Association that such failure is due to circumstances beyond the Owner’s control.
14.1 Rights of Owners Whenever all or any part of Common Area shall be taken or conveyed in lieu of and under threat of condemnation, the Board acting as attorney-In-fact for all Owners, shall notify each Owner of the taking, but the Association shall act as attorney-in-fact for all Owners in the proceedings incident to the condemnation proceeding, unless otherwise prohibited by law.
14.2 Condemnation; Distribution of Award; Reconstruction The award made for such partial or complete taking shall be payable to the Association as trustee for all Owners to be disbursed as follows: If the taking involves a portion of Common Area on which Improvements have been constructed, then, unless within sixty (50) days after such taking Grantor and Owners representing at least sixty seven percent (67%) of the Members shall otherwise agree, the Association shall restore or replace such Improvements so taken on the remaining land including in Common Area to the extent lands are available there for, In accordance with plans approved by the Board and the Architectural Committee. If such Improvements are to be repaired or restored, the provisions in Article XIV regarding the disbursement of funds in respect to casualty damage or destruction which is to be repaired shall apply. lithe taking does not involve any Improvements on Common Area, or I there is a decision made not to repair or restore, or if there are net funds remaining after any such restoration or replacement is completed, then such award or net funds shall be distributed in equal shares per Building Lot to the Owners.
Article XV: Resolutions of Disputes
15.1 Avoiding Costs of Litigation and Limiting Right to Litigate Disputes The Association, Grantor, all Persons subject to this Declaration, and any Person not otherwise subject to this Declaration who agrees to submit to this Article, (collectively, “Bound Parties”) shall encourage the amicable resolution of disputes involving the Property, and avoid the emotional and financial costs of litigation If at all possible. Accordingly, all claims, grievances or disputes between such Bound Party and any other Bound Party involving the Property, include without limitation, claims, grievances or disputes arising out of or relating to the interpretation, application or enforcement of this Declaration, the Project Documents and/or the Association rules (collectively “Claim”), shall be subject to the procedures set forth herein.
15.2 Mandatory Procedures for all Other Claims My Bound Party having a Claim (“Claimant”) against any other Bound Party (“Respondent”) shall not file suit in any court or initiate any proceeding before any administrative tribunal seeking redress or resolution of such Claim until it has complied with the following procedures:
15.2.1 Notice The Claimant shall notify each Respondent in writing of the Claim (the “Notice”), stating plainly and concisely:
(a) the nature of the Claim, including date, time, location, persons involved, Respondent’s role in the Claim and the provisions of this Declaration, the Project Documents, the Association Rules, or other authority out of which the Claim arises;
(b) the basis of the Claim (I.e., the provision of the Declaration, the Project Documents, Association Rules triggered by the Claim);
(c) what Claimant wants Respondent to do or not do to resolve the Claim; and
(d) that Claimant wishes to resolve the Claim by mutual agreement with Respondent, and is willing to meet In person with Respondent at a mutually agreeable time and place to discuss In good faith ways to resolve the Claim,
15.2.2 Negotiation Each Claimant and Respondent (the Parties”) shall make every reasonable effort to meet In person and confer for the purpose of resolving the Claim by good faith negotiation. Upon receipt of a written request from any Party, accompanied by a copy of the Notice, the Board may appoint a representative to assist the Parties in resolving the dispute by negotiation, if in its discretion the Association believes the Association’s efforts will be beneficial to the Parties and to the welfare of Wedgewood.
15.2.3 Mediation If the Parties do not resolve the Claim through negotiation within thirty (30) days of the date of the Notice (or within such other period as may be agreed upon by the Parties) (‘Termination of Negotiations”) Claimant shall have thirty (30) additional days within which to submit the Claim to mediation under the auspices of Idaho law. Lf Claimant does not submit the Claim to mediation with thirty (30) days after Termination of Negotiations. Claimant shall be deemed to have waived the Claim, and Respondent shall be released and discharged from any and all liability to Claimant on account of such Claim; provided, nothing herein shall release or discharge Respondent from any liability to Persons not a Party to the foregoing proceedings.
15.3 Allocation of Costs of Resolving Claims Each Party shall bear all of its own costs incurred prior to and during the proceedings described herein, including the fees of its attorney or other representative. Each Party shall share equally all charges rendered by mediator(s).
15.4 Enforcement of Resolution If the Parties fall to abide by the terms of such mediation agreement, then any other Party may file suitor initiate administrative proceedings to enforce such agreement without the need to again comply with the procedures set forth in Section 15.2. In such event, the Party taking action to enforce the agreement shall be entitled to recover from the noncomplying Party (or If more than one noncomplying Party, from all such Parties pro rats) all costs incurred In enforcing such agreement, including, without limitation, attorneys’ fees and court costs.
16.1 Term The Restrictions created hereunder shall be perpetual, subject only to extinguishment by the holders of such Restrictions as provided by law. The Restrictions of this Declaration shall run until December 31, 2021, unless amended as herein provided. After December 31, 2021, such covenants, conditions and restrictions shall be automatically extended, unless amended or extinguished by a written instrument executed by Members holding at least a majority of the voting power of the Association and such written instrument is recorded with the Ada County Recorder’s Office.
16.2.1 By Grantor Until the recordation of the first deed to a Building Lot, the provisions of this Declaration may be amended, modified, clarified supplemented, added to or terminated (collectively, “amendment”) by Grantor by recordation of a written Instrument setting forth such amendment.
16.2.2 By Owners Except as provided in Section 16.1, after the recordation of the first deed to a Building Lot, any amendment to any provision of the Declaration, other than to this Article, shall be by an instrument in writing signed and acknowledged by the president and secretary of the Association certifying and attesting that such amendment has been approved by the vote or written consent of Members representing at least two-thirds (2/3) of the total voting power in the Association, except where a greater percentage Is required by express provision in this Declaration, and such amendment shall be effective upon Its recordation with the Ada County Recorder’s Office. Any amendment to this Article shall require the vote or written consent of Members representing ninety percent (90%) of the voting power of the Association.
16.2.3 Effect of Amendment Any amendment of this Declaration approved In the manner specified above shall be binding on and effective as to all Owners and their respective Building Lots notwithstanding that such Owners may not have voted for or consented to such amendment. Such amendments may add to and Increase the covenants, conditions, restrictions and easements applicable to the Property, but shall not prohibit or unreasonably interfere with the allowed uses of such Owner’s Building Lot(s) which existed prior to the such amendment.
16.3 Mortgage Protection Notwithstanding any other provision of this Declaration, no amendment of this Declaration shall operate to defeat or render invalid the rights o beneficiary under any First Mortgage upon a Building Lot made in good faith and for value, and recorded prior to the recordation of such amendment, provided that after foreclosure of any such First Mortgage, such Building Lot shall remain subject to this Declaration, as amended.
16.4 Notices Any notices permitted or required to be delivered as provided In this Declaration shall be in writing and may be delivered either personally, by facsimile or by U.S. mail, if delivery is made by U.S. mail, delivery shall be deemed to have been delivered seventy-two (72) hours after the same has been deposited in the United States mail, first class, postage prepaid, addressed to any Person at the address given by such Person to the Association for the purpose of service of such notice, or to the residence of such Person if no address has been given to the Association or to the address of such Person as contained in the Ada County tax assessor’s rolls. Such address may be changed from time to time by notice in writing to the Association.
16.5 Enforcement and Non-Waiver
16.5.1 Right of Enforcement Except as otherwise provided herein, any Owner, the Association or Grantor shall have the right to enforce any or all of the provisions hereof against any portion of the Property and against Owners thereof.
16.5.2 Violations and Nuisances The failure of any Owner of a Building Lotto comply with any provision hereof, or with any provision of the Project Documents, is hereby declared a nuisance and will give rise to a cause of action In Grantor, the Association or any Owner for recovery of damages or for negative or affirmative injunctive relief or both.
16.5.3 Violation of Law Any violation of any State, municipal or local law, ordinance or regulation pertaining to the ownership, occupation or use of any portion of the Property Is hereby declared to be a violation of this Declaration and subject to any and all of the enforcement procedures set forth in this Declaration and any and all enforcement procedures in law and equity.
16.5.4 Remedies Cumulative Each remedy provided herein Is cumulative and not exclusive.
16.5.5 Non-Waiver The failure to enforce any of the provisions herein at any time shall not constitute a waiver of the right to enforce any such provision.
16.6 Use of Trade Name Each Owner by acceptance of a deed for such Owner’s Building Lot shall be deemed to acknowledge that “Wedgewood” is or may become a service mark, trade name and/or trademark of Wedgewood, LC., or Its licensees, and to covenant that any such Owner shall not use the term Wedgewood without the prior written permission of Wedgewood, L.C., or its licensees.
16.7 Interpretation The provision of this Declaration shall be liberally construed to effectuate its purpose of creating a uniform plan for the development and operation of the Property. This Declaration shall be construed and governed under the law5 of the State of Idaho,
16.7.1 Restrictions Construed Together All of the provisions hereof shall be liberally construed together to promote and effectuate the fundamental concepts of the development of the Property as set forth in the recitals of this Declaration.
16.7.2 Restrictions Severable Notwithstanding the provision of the foregoing Subsection 16.7.1, each of the provisions of this Declaration shall be deemed independent and severable, and the invalidity of partial invalidity of any provision or portion thereof shall not affect the validity or enforceability of any other provision herein.
16.7.3 Singular includes Plural Unless the context requires a contrary construction, the singular shall include the plural and the plural the singular, and the masculine, feminine or neuter shall each include the masculine, feminine and neuter.
16.7.4 Captions All captions and titles used In this Declaration are intended solely for convenience of reference and shall not affect that which is set forth in any of the provisions hereof.
16.8 Successors and Assigns All references herein to Grantor, Owner, Members, the Association or Person shall be construed to include all successors, assigns, partners and authorized agents of such Grantor, Owners, Members, the Association or Person.
16.9 Owners’ Further Acknowledgments By accepting a deed to any Building Lot(s) contained within the Property, each Owner acknowledges and agrees to the following:
(a) that Owner has read and understands the Project Documents;
(b) that Owner acknowledges that property in the vicinity of Wedgewood may be developed for other than residential uses; and
(c) that Owner has accepted title to the Building Lot(s) after conducting all necessary inquiries and due diligence, and that Owner takes such Building Lot(s) “as Is,” without any express or implied warranty from Grantor.
IN WITNESS WHEREOF, the undersigned has duly executed this Declaration of Covenants, Conditions and Restrictions for Wedgewood Residential Development effective the day, month and year first written above.
WEDGEWOOD, L.C., an Idaho
limited liability company
By: Mark C. Canfield,
Managing Member
By: Carlene M. Canfield,
Managing Member
WEDGEWOOD ASSOCIATION,
INC.,
an Idaho nonprofit
corporation
By: Mark C. Canfield,
President
STATE OF IDAHO )
) ss.
County of Ada
)
On this 7 day of November, 2001 before me, the undersigned, a Notary Public in and for said State, personally appeared MARK C. CANFIELD, known or identified to me to be a managing member of Wedgewood, L.C., 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 company executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.
Rita A Belts
Notary Public for Idaho
Residing at Meridian, ID
My Commission expires: 11-12-05
STATE OF IDAHO )
) ss.
County of Ada
)
On this 7 day of November, 2001, before me, the undersigned, a Notary Public in and for said State, personally appeared CARLENE M. CANFIELD, known or identified to me to be a managing member of Wedgewood, L,C., 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 company executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.
Rita A Belts
Notary Public for Idaho
Residing at Meridian, ID
My Commission expires: 11-12-05
STATE OF IDAHO )
) ss.
County of Ada
)
On this 7 day of November, 2001, before me, the undersigned, a Notary Public In and for5a!d State, personally appeared MARK C. CANFIELD, known or identified to me to be the President of Wedgewood Association, Inc., the nonprofit corporation that executed the instrument or the person who executed the instrument on behalf of said nonprofit corporation, 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.
Rita A Belts
Notary Public for Idaho
Residing at Meridian, ID
My Commission expires: 11-12-05
Legal Description Of Property
A parcel of land being the NE ¼ of the SE ½ and a portion of the SE ¼ of the NE ½ of Section 19, T.4N., R.1E., B.M., Eagle, Ada County, Idaho, more particularly described as follows:
Commencing at the Section corner common to Sections 19, 20, 29 and 30 of said T.4N., R.1 E.;
Thence North 0°14’26” East on the section line common to said Sections 19 and 20, 1319.99 feet to the South 1/16th section corner common to said Sections 19 and 20, said point being the REAL POINT OF BEGINNING;
Thence North 89°46’36’ West, 1317.70 feet on the Southerly Boundary of said NE ¼ of the SE ¼ of Section 19, (formerly described as 1317.65 feet) to the SE 1/16th section corner of said Section 19, said point also being the northwest corner of Spyglass Subdivision, as same is shown on the plat thereof recorded in Book 73 of Plats at Page 7476, of Ada County Records;
Thence North 0°12’32” East (formerly described as North 0°12’39” East), 1322.29 feet on the Westerly boundary of said NE ¼ of the SE ¼ of Section 19, to the center east 1/16th section corner of said Section 19. said point also being the southeast corner of Creighton Heights Subdivision, as same is shown on the plat thereof recorded in Book 64 of plats at Page 6529 of Ada County Records;
Thence North 0°l5’14” East on the westerly boundary of said SE ¼ the NE ¼ of Section 19, which is common with the easterly boundary of said Creighton Heights Subdivision, 560.93 feet (formerly described as 561 feet) to a found 5/8” rebar;
Thence South 89°40’18” East (formerly described as East), 1001.49 feet to a found 5/8’ rebar;
Thence South 0°16’18” West, 104.81 feet (formerly described as South, 105 feet) to a found 5/8” rebar;
Thence North 77°33’23” East, 157.01 feet (formerly described as North 77°35’ East, 153 feet) which point is referenced by a found 5/8” rebar marked 20 foot witness corner;
Thence South 64°17’39” East, 181.36 feet (formerly described as South 66°l5’ East, 183 feet) to a point on the section line common to said sections 19 and 20;
Thence South 0°14’51” West, on the section line common to said sections 19 and 20 (formerly described as South), 413.00 feet to the ¼ section corner common to said Sections 19 and 20;
Thence South 0°14’26” West, 1319.98 feet on the section line common to said Sections 19 and 20 to the real point of beginning. Containing 56.23 acres more or less.
Map Of Approved Septic Field Locations
