Declaration of Covenants, Conditions, and Restrictions for Village Towns
at South Mountain
This Declaration of Covenants, Conditions, and Restrictions for VILLAGE TOWNS AT SOUTH MOUNTAIN (the “Declaration”) is made this 6th day of January, 1997, by Pulte Home Corporation, a Michigan corporation (the “Declarant”).
Article 1: Definitions
Unless otherwise defined, the following words and phrases when used in this Declaration shall have the meanings set forth in this Article.
1.1 “Additional Property” means the real property described on Exhibit B attached hereto, together with all Improvements situated thereon, and any other real property, together with the Improvements located thereon, situated within the vicinity of the Project.
1.2 “Annual Assessment” means the assessments levied against each Lot, and the Owner thereof, pursuant to Section 6.2 of this Declaration.
1.3 “Architectural Committee” means the committee of the Association to be created pursuant to Section 5.10 of this Declaration.
1.4 “Architectural Committee Rules” means the rules and guidelines adopted by the Architectural Committee pursuant to Section 5.10 of this Declaration, as amended or supplemented from time to time.
1.5 “Area of Association Responsibility” means (i) all land, and the Improvements situated thereon, located within the boundaries of a Lot which the Association is obligated to maintain, repair, and replace pursuant to the terms of this Declaration or the terms of another Recorded document executed by the Association; and (ii) all real property, and the Improvements situated thereon, within the Project located within dedicated rights-of-way with respect to which the State of Utah or any county or municipality has not accepted responsibility for the maintenance thereof, but only until such times as the State of Utah or any county or municipality has accepted all responsibility for the maintenance, repair, and replacement of such areas.
1.6 “Articles” means the Articles of Incorporation of the Association, as amended from time to time.
1.7 “Assessment” means an Annual Assessment or Special Assessment.
1.8 “Assessment Lien” means the lien created and imposed by Article 6 of this Declaration.
1.9 “Assessment Period” means the period set forth in Section 6.6 of this Declaration.
1.10 “Association” means the Utah nonprofit corporation to be organized by Declarant to administer and enforce the Project Documents and to exercise the rights, powers, and duties set forth therein, and its successors and assigns. Declarant intends to incorporate the Association under the name of “Village Towns at South Mountain Community Association,” but if such a name is not available, Declarant reserves the right to incorporate the Association under such name as the Declarant deems appropriate.
1.11 “Association Rules” means the rules adopted by the Board pursuant to Section 5.3 of this Declaration, as amended from time to time.
1.12 “Board” means the Board of Trustees of the Association.
1.13 “Bylaws” means the Bylaws of the Association, as amended from time to time.
1.14 “Common Expenses” means expenditures made by or financial liabilities of the Association, together with any allocations to reserves.
1.15 “Declarant” means Pulte Home Corporation, a Michigan corporation, and any person or entity to whom it may expressly assign any or all of its rights under this Declaration by a Recorded instrument.
1.16 “Declaration” means this Declaration of Covenants, Conditions, and Restrictions, as amended from time to time.
1.17 “First Mortgage” means any mortgage or deed of trust on a Lot which has priority over all other mortgages and deeds of trust on the same Lot.
1.18 “First Mortgagee” means the holder or beneficiary of any First Mortgage.
1.19 “Improvement” means any building, fence, wall or other structure (including, without limitation, any sheds, basketball poles/hoops, play structures, patio covers and balconies), and any swimming pool, road, driveway, parking area (paved or unpaved) and any trees, plants, shrubs, grass, and other landscaping improvements of every type and kind.
1.20 “Lessee” means the lessee or tenant under a lease, oral or written, of any Lot including an assignee of a lease.
1.21 “Lot” means a portion of the Project intended for independent ownership and use and designated as a Lot on the Plat, and, where the context indicates or requires, shall include any Residential Unit, building, structure, or other improvements situated on the Lot.
1.22 “Maintenance Standard” means the standard of maintenance of Improvements established from time to time by the Board or, in the absence of any standard established by the Board, the standard of maintenance of Improvements generally prevailing throughout the Project.
1.23 “Member” means any Person who is a Member of the Association.
1.24 “Owner” means the record owner, whether one or more Persons, of beneficial or equitable title (and legal title if the same has merged with the beneficial or equitable title) to the fee simple interest of a Lot. Owner shall not include Persons having an interest in a Lot merely as security for the performance of an obligation or a Lessee. Owner shall include a purchaser under a contract for the conveyance of real property subject. Owner shall not include a purchaser under a purchase contract and receipt, escrow instructions or similar executory contracts which are intended to control the rights and obligations of the parties to the executory contracts pending the closing of a sale or purchase transaction. In the case of Lots the fee simple title to which is invested in a trustee, the Trustor shall be deemed to be the Owner.
1.25 “Person” means a natural person, corporation, limited liability company, business trust, estate, trust, partnership, association, joint venture, governmental entity, governmental subdivision or agency, or other legal or commercial entity.
1.26 “Plat” means the plat for South Mountain Phase 2F Amended Recorded in Book 97-2P, page 23, records of Salt Lake County, Utah, and all amendments, supplements, and corrections thereto.
1.27 “Property” or “Project” means the real property described on Exhibit A attached to this Declaration together with all Improvements located thereon, and all real property, together with all Improvements located thereon, which is annexed and subjected to this Declaration, by the Declarant, pursuant to Section 2.2 of this Declaration.
1.28 “Project Documents” means the Plat, this Declaration, the Articles, the Bylaws, the Association Rules, and the Architectural Committee Rules.
1.29 “Public Utility and Access Easement Area” means that area identified on the Plat as “Public Utilities Easement” and “Access Easement” which provides areas for the installation and operation of utilities and vehicle and pedestrian ingress and egress from public rights-of-way to the Lots across portions of other Lots.
1.30 “Purchaser” means any Person, other than the Declarant, who by means of a voluntary transfer becomes the Owner of a Lot, except for: (i) a Person who purchases a Lot and then leases it to the Declarant for use as a model in connection with the sale or lease of other Lots; or (ii) a Person who, in addition to purchasing a Lot, is assigned or has acquired any or all of the Declarant’s rights under this Declaration.
1.31 “Recording” means placing an instrument of public record in the office of the County Recorder of Salt Lake County, Utah, and “Recorded” means having been so placed of public record.
1.32 “Resident” means each individual occupying or residing in any Residential Unity.
1.33 “Residential Unit” means any building, or portion of a building, situated upon a Lot and designed and intended for independent ownership and for use and occupancy as a residence.
1.34 “South Mountain Design Guidelines” means the South Mountain Design Guidelines recorded on December 14, 1994, in Entry No. 5943665, Book 7076, page 2392, Official Records of Salt Lake County, Utah, as may be amended from time to time.
1.35 “Special Assessment” means any assessment levied and assessed pursuant to Section 6.5 of this Declaration.
1.36 “Visible from Neighboring Property” means, with respect to any given object, that such an object is or would be visible to a person on any part of any adjoining Lot or the Easement Area.
Article 2: Plan of Development
2.1 Property Initially Subject to the Declaration. This Declaration is being Recorded to establish a general plan for the development, sale, lease, and use of th Project in order to protect and enhance the value and desirability of the Project. The Declarant declares that all of the property within the Project shall be held, sold, and conveyed subject to this Declaration. By acceptance of a deed or by acquiring any interest in any of the property subject to this Declaration, each Person, for himself or itself, his heirs, personal representatives, successors, transferees and assigns, binds himself, his heirs, personal representatives, successors, transferees and assigns, to all of the provisions, restrictions, covenants, conditions, rules, and regulations now or hereafter imposed by this Declaration and any amendments thereto. In addition, each such Person by so doing thereby acknowledges that his Declaration sets forth a general scheme for the development, sale, lease and use of the Property and hereby evidences his interest that all the restrictions, conditions, covenants, rules, and regulations contained in this Declaration shall run with the land and be binding on all subsequent and future Owners, grantees, purchasers, assignees, lessees, and transferees thereof. Furthermore, each such person fully understands and acknowledges that this Declaration shall be mutually beneficial, prohibitive, and enforceable by the Association and all Owners. Declarant, its successors, assigns, and grantees, covenants and agrees that the Lots and the membership in the Association and the other rights created by this Declaration shall not be separated or separately conveyed, and each shall be deemed to be conveyed or encumbered with its respective Lot even though the description in the instrument of conveyance or encumbrance may refer only to the Lot.
2.2 Annexation of Additional Property.
2.2.1 At any time on or before the date which is seven (7) years after the date this Declaration is Recorded, the Declarant shall have the right to annex and subject to this Declaration all or any portion of the Additional Property without the consent of any other Owner or Person. The annexation of all or any portion of the Additional Property shall be effected by the Declarant recording an amendment to this Declaration setting forth the legal description of the Additional Property being annexed, stating that such portion of the Additional Property is annexed and subjected to the Declaration. Unless a later effective date is set forth in the amendment annexing Additional Property, the annexation shall become effective upon the recording of the amendment. An amendment Recorded pursuant to this Section may divide the portion of the Additional Property being annexed into separate phases and provide for a separate effective date with respect to each pase. The voting rights of the Owners of Lots annexed pursuant to this Section shall be effective as of the date the amendment annexing such property is Recorded or such later date set forth in the amendment. The Lot Owner’s obligation to pay Assessments shall commence as provided in Section 6.7 of this Declaration. If an amendment annexing a portion of the Additional Property divides the annexed portions of the Additional Property into phases the Declarant shall have the right to amend any such amendment to change the description of the phases within the annexed property, except that the Declarant may not change any phase in which a Lot has been conveyed to a Purchaser.
2.2.2 Declarant makes no assurances as to the exact number of Lots which shall be added to Project by annexation or if all or any portion of the Additional Property will be annexed.
2.2.3 All taxes and other Assessments relating to all or any portion of the Additional Property annexed into the Project covering any period prior to the time which such portion of the Additional Property is annexed in accordance with this Section 2.2 shall be the responsibility of, and shall be paid by, the Declarant.
2.2.4 The Additional Property may be annexed as a whole, at one time, or in one or more portions at different times, or it may never be annexed, and there are not limitations upon the order of annexation or the boundaries thereof. The property annexed by the Declarant pursuant to this Section 2.2 need not be contiguous with other property in the Project, and the exercise of the right of annexation as to any portion of the Additional Property shall not bar the further exercise of the right of annexation as to any other portion of the Additional Property.
2.3 Disclaimer of Representations. Declarant makes no representations or warranties whatsoever that: (i) the Project will be completed in accordance with the plans for the Project as they exist on the date this Declaration is Recorded; (ii) any Property subject to this Declaration will be committed to or developed for a particular use or for any use; or (iii) the use of any Property subject to this Declaration will not be changed in the future.
Article 3: Use Restrictions
3.1 Architectural Control
3.1.1 In addition to the provisions of this Section 3.1, each Owner shall be subject to the provisions of the South Mountain Design Guidelines.
3.1.2 No excavation or grading work shall be performed on any Lot without the prior written approval of the Architectural Committee.
3.1.3 No Improvement which would be Visible From Neighboring Property shall be constructed or installed on any Lot without the prior written approval of the Architectural Committee. No addition, alteration, repair, change, or other work which in any way alters the exterior appearance, including, without limitation, the exterior color scheme, of any part of a Lot, or any Improvements located thereon which are Visible From Neighboring Property, from their appearance on the date this Declaration is Recorded shall be made or done without the prior written approval of the Architectural Committee. Any Owner desiring approval of the Architectural Committee for the construction, installation addition, alteration, repair, change or replacement of any Improvement which is or would be Visible From Neighboring Property shall submit to the Architectural Committee a written request for approval specifying in detail the nature and extent of the addition, alteration, repair, change, or other work which the Owner desires to perform, including, without limitation, the distance of such work from neighboring properties, if applicable. Any Owner requesting the approval of the Architectural Committee shall also submit to the Architectural Committee any additional information, plans, and specifications which the Architectural Committee may request. In the event that the Architectural Committee fails to approve or disapprove an application for approval within thirty (3o) days after the application, together with any fee payable pursuant to Subsection 3.1.6 of this Declaration and all supporting information, plans, and specification requested by the Architectural Committee, has been submitted to the Architectural Committee, approval will not be required and this Section will be deemed to have been complied with by the Owner who had requested approval of such plans. The approval by the Architectural Committee of any construction, installation, addition, alteration, repair, change, or other work pursuant to this Section shall not be deemed a waiver of the Architectural Committee’s right to withhold approval of any similar construction, installation, addition, alteration, repair, change, or other work subsequently submitted for approval.
3.1.4 Upon receipt of approval from the Architectural Committee for any construction, installation, addition, alteration, repair, change, or other work, the Owner who had requested such approval shall proceed to perform, consturct, or make tha ddition, alteration, repair, change, or other work approved by the Architectural Committee as soon as practicable and shall diligently pursue such work so that it is completed as soon as reasonably practicable and within such time as may be prescribed by the Architectural Committee.
3.1.5 Any change, deletion, or addition to the plans and specifications approved by the Architectural Committee must be approaved in writing by the Architectural Committee.
3.1.6 The Architectural Committee shall have the right to charge a fee for reviewing requests for approval of any construction, installation, alteration, addition, repair, change, or other work pursuant to this Section, which fee shall be payable at the time the application for approval is submitted to the Architectural Committee.
3.1.7 All Improvements constructed on Lots shall be of new construction, and no buildings or other structures shall be removed from other locations onto any Lot.
3.1.8 The provisions of this Section do not apply to, and approval of the Architectural Committee shall not be required for, the construction, erection, installation, addition, alteration, repair, change, or replacement of any Improvements made by, or on behalf of, the Declarant.
3.1.9 The approval required of the Architectural Committee pursuant to this Section shall be in addition to, and not in lieu of, any approvals or permits which may be required under any federal, state, or local law, statute, ordinance, rule, or regulation.
3.1.10 The approval by the Architectural Committee of any construction, installation, addition, alteration, repair, change, or other work pursuant to this Section shall not be deemed a warranty or representation by the Architectural Committee as to the quality of such construction, intallation, addition, alteration, repair, change, or other work or that such construction, installation, addition, alteration, repair, change, or other work conforms to any applicable building codes or other federal, state, or local law, statute, ordinance, rule, or regulation.
3.2 Temporary Occupancy and Temporary Buildings. No trailer, basement of any incomplete building, tent, shack, garage, or barn and no temporary buildings or structures of any kind shall be used at any time for a residence, either temporary or permanent. Temporary buildings, trailers, or other structures used during the construction of Improvements approved by the Architectural Committee shall be removed immediately after the completion of construction, and in no event shall any such buildings, trailer, or other structures be maintained or kept on the Property for a period in excess of twelve months without the prior written approval of the Architectural Committee.
3.3 Nuisances: Construction Activities. No rubbish or debris of any kind shall be placed or permitted to accumulate upon or adjacent to any Lot or other property, and no odors or loud noises shall be permitted to arise or emit therefrom, so as to render any such property or any portion thereof, or activity thereon, unsanitary, unsightly, offensive, or detrimental to any other property in the vicinity thereof or to the occupants of such other property. No other nuisnace shall be permitted to exist or operate upon any Lot or other property so as to be offensive or detrimental to any other property in the vicintey thereof or to its occupants. Normal construction acrivities and parking in connection with the building of Improvement on a Lot or other property shall not be considered a nuisance or otherwise prohibited by the Declaration, but Lots and other property shall be kept in a neat and tidy condition during construction periods; trash and debris shall not be permitted to accummulate, and supplies of brick, block, lumber, and other building materials will be piled only in such areas as may be approaved in writing by the Architectural Committee. In addition, any construction equipment and building materials stored or kept on any Lot or other property during the construction of Improvements may be kept only in areas approved in writing by the Architectural Committee, which may also require screening of the storage areas. The Architectural Committee in its sole discretion shall have the right to determine the existence of any such nuisance. The provisions of this Section shall not apply to construction activities of the Declarant.
3.4 Diseases and Insects. No Person shall permit any thing or condition to exist upon any Lot or other property which shall induce, breed, or harbor infectious plant diseases or noxious insects.
3.5 Antennas. Except as permitted in this Section, no antenna or other device for the transmission or reception of television or radio signals or any other form of electromagnetic radiation including, without limitation, satellite or microwave dishes, shall be erected, used, or maintained on any Lot without the prior written approval of the Architectural Committee. An antenna one meter or less in diameter or diagonal measurement which is designed to receive signals from direct broadcast satellites (DBS) or designed to receive video programming services from multi-channel multi-point distribution (wireless cable) providers (MMDS) or an antenna that is designed to receive television broadcast signals (TVBS) may be placed, installed, or kept on a Lot if the antenna complies with the following restrictions:
3.5.1 The antenna must be placed on the Lot in such a manner as to not be visible from any other Lot or any street unless it is impossible to do so without impairing the user’s ability to receive signals from a provider of DBS, MMDS, or TVBS.
3.5.2 If the antenna cannot be placed on the Lot in such a manner as to not be visible from any other Lot or any street without impairing the user’s ability to receive signals from a provider of DBS, MMDS, or TVBS, then the antenna must be screened by landscaping or by some other means so that it is not visible from any other Lot or any street unless such screening would impair the user’s ability to receive signals from a provider of DBS, MMDS, or TVBS, in which event the antenna must be screened by landscaping or by some other means to reduce to the greatest extent possible its visibility from other Lots or streets without impairing the user’s ability to receive signals from a provider of DBS, MMDS, or TVBS.
3.5.3 If the antenna is mounted on a Residential Unit or other structure and is visible from any other Lot or street, the antenna must be painted a color which will blend into the background against which the antenna is mounted unless the painting of the antenna would impair the user’s ability to receive signals from a provider of DBS, MMDS, or TVBS.
3.5.4 An antenna that is less than one meter in diameter and is designed to receive video program services from MMDS or an antenna designed to receive TVBS may be mounted on a mast which does not exceed twelve feet (12’) in height above the roofline. However, the mast shall be no higher than the height necessary to establish line of sight contact with the transmitter. If the mast or antenna is visible from any other Lot or street, the mast or antenna must be painted the same color as the residence or other structure on which the antenna is mounted so long the painting of the antenna does not impair the user’s ability to receive signals from the MMDS or TVBS provider.
3.5.5 The antenna may not be installed, erected, or placed on the Lot until ten (10) days after the Architectural Committee receives written notice of the proposed installation. The notice to the Architectural Committee must contain information regarding the proposed location of the antenna on the Lot and the manner in which the antenna whill be installed in order to be in compliance with the restrictions set forth in this Section.
3.6 Mineral Exploration. No Lot or other property shall be used in any manner to explore for, or to remove, any water, oil, or other hydrocarbons, minerals of any kind, gravel, earth, or any earth substance of any kind.
3.7 Trash Containers and Collection. No garbage or trash shall be placed or kept on any Lot or other property, except in covered containers of a type, size, and style which are approved by the Architectural Committee. In no event shall such containers be maintained so as to be Visible From Neighboring Property except to make the same available for collection and then only for the shortest time reasonably necessary to effect such collection. All rubbish, trash, or garbage shall be removed from Lots and other property and shall not be allowed to accumulate thereon. No outdoor incinerators shall be kept or maintained on any Lot or other property.
3.8 Clothes Drying Facilities. No outside clothesline or other outside facilities for drying or airing clothes shall be erected, placed, or maintained on any Lot or other property so as to be Visible From Neighboring Property.
3.9 Utility Service. No lines, wires, or other devices for the communication or transmission of electric current or power, including telephone, television, and radio signals, shall be erected, placed, or maintained anywhere in or upon any Lot or other property unless the same shall be contained in conduits or cables installed and maintained underground or concealed in, under, or on buildings or other structures approved by the Architectural Committee. No provision of this Declaration shall be deemed to forbid the erection of temporary power or telephone structures incident to the construction of buildings or structures approved by the Architectural Committee.
3.10 Overhead Encroachments. No tree, shrub, or planting of any kind on any Lot or other property shall be allowed to overhang or otherwise encroach upon any sidewalk, street, pedestrian way, or other area from ground level to a height of eight (8) feet.
3.11 Residential Use. All Residential Units shall be used, improved, and devoted exclusively to residential use. No trade or business may be conducted on any Lot or in or from any Residential Unit, except that an Owner or other Resident of a Residential Unit may conduct a business activity within a Residential Unit so long as: (i) the existence or operation of the business activity is not apparent or detectable by sight, sound, or smell from outside the Residential Unit; (ii) the business activity conforms to all applicable zoning ordinances or requirements for the Project; (iii) the business activity does not involve persons coming on to the Lot or the door-to-door solicitation of Owners or other Residents in the Project; and (iv) the business activity is consistent with the residential character of the Project and does not constitute a nuisance or a hazardous or offensive use of threaten security or safety of other Residents in the Project, as may be determined from time to time in the sole discretion of the Board. The terms “business” and “trade” as used in this Section shall be construed to have ordinary, generally accepted meanings, and shall include, without limitation, any occupation, work, or activity undertaken on an ongoing basis which involves the provision of goods or services to persons other than the Residents of a Residential Unit and for which the provider receives a fee, compensation, or other form of consideration, regardless of whether: (i) such activity is engaged in full or part time; (ii) such activity is intended or does generate a profit; or (iii) a license is required for such activity. The leasing of a Residential Unit by the Owner thereof shall not be considered a trade or business within the meaning of this Section.
3.12 Animals. No animal, bird, fowl, poultry, reptile, or livestock may be kept on any Lot, except that dogs, cats, parakeets, or similar household birds (not to exceed a total of two ) (“Permitted Pets”) may be kept on a Lot if they are kept, bred, or raised thereon solely as domestic pets and not for commercial purposes. All permitted Pets under this Section shall be confined to an Owner’s Lot except that a dog or cat may be permitted to leave an Owner’s Lot if such dog or cat is at all times kept on a leash not to exceed six feet (6’) in length and is not permitted to enter upon any other Lot. No Permitted Pets under this Section shall be allowed to make an unreasonable amount of noise or to become a nuisance. No structure for the care, housing, or confinement of any Permitted Pet shall be maintained so as to be Visible From Neighboring Property. Upon the written request of any Owner, Lessee, or Resident, the Architectural Committee shall conclusively determine, in its sole and absolute discretion, whether, for the purposes of this Section, a particular Permitted Pet is a nuisance or making an unreasonable amount of noise. Any decision rendered by the Architectural Committee shall be enforceable in the same manner as other restrictions set forth in this Declaration. Any Owner, Resident, or other person who brings or permits his pet to be on any Lot or public right-of-way adjacent to a Lot shall be responsible for immediately removing any solid waste deposited by said pet.
3.13 Machinery and Equipment. No machinery or equipment of any kind shall be placed, operated, or maintained upon or adjacent to any Lot, except such machinery or equipment as is usual and customary in connection with the use, maintenance, or construction (during the period or construction) of a building, appurtenant structures, or other Improvements or such machinery or equipment which Declarant or the Assocation may require for the operation and maintenance of the Project.
3.14 Signs. No signs whatsoever (including, but not limited to, commercial, political, “for sale,” “for rent,” and similar signs) which are Visible From Neighboring Property shall be erected or maintained on any Lot except:
3.14.1 Signs required by legal proceedings
3.14.2 Residence identification signs provided the size, color, content, and location of such signs have been approved in writing by the Architectural Committee.
3.14.3 One (1) “For Sale” sign provided the size, color, design, message content, location, and type has been approved in writing by the Architectural Committee.
3.15 Restriction on Further Subdivision; Property Restrictions and Rezoning. No Lot shall be further subdivided or separated into smaller lots or parcels by any Owner other than the Declarant, and no portion less than all of any such Lot shall be conveyed or transferred by any Owner other than the Declarant, without the prior written approval of the Architectural Committee. No further covenants, conditions, restrictions, or easements shall be Recorded by any Owner, Lessee, or other person other than the Declarant against any Lot without the provisions thereof having been first approved in writing by the Architectural Committee. No application for rezoning, variances, or use permits pertaining to any Lot shall be filed with any governmental authority by any Person other than the Declarant unless the application has been approved by the Architectural Committee and the proposed use otherwise complies with this Declaration.
3.16 Trucks, Trailers, Campers, and Boats. No car, van, truck, mobile home, travel trailer, tent trailer, trailer, camper shell, detached camper, recreational vehicle, boat, boat trailer, or other similar equipment or vehicle may be parked, maintained, constructed, reconstrcuted, or repaired on any Lot, includeing, without limitation, upon the Public Utility ad Access Easeent Area, except for: (i) temporary construction trailers or facilities maintained during, and used exclusively in connection with, the construction of any Improvement approved by the Architectural Committee, and (ii) boats and motor vehicles parked in garages on Lots so long as such vehicles are in good operating condition and appearance and are not under repair. Parking of vehicles shall be STRICTLY PROHIBITED within the Public Utility and Access Easement Area.
3.17 Motor Vehicles. Except for emergency vehicle repairs, no automobile or other motor vehicle shall be constructed, reconstructed, or repaired upon a Lot, including, without limitation, upon the Public Utility and Access Easement Area, or a public street adjacent to a Lot and no inoperable vehicle may be stored or parked on sany such Lot or public street so as to be Visible From Neighboring Property or to be visible from any street.
3.18 Towing of Vehicles. The Board shall have the right to have any truck, mobile home, travel trailer, tent trailer, trailer, camper shell, detached camper, recreational vehicle, boat, boat trailer, or similar equipment or vehicle or any automobile, motorcycle, motorbike, or other motor vehicle which is parked, kept, maintained, constructed, reconstructed, or repaired in violation of the Project Documents towed away at the sole cost and expense of the owner of the vehicle or equipment. Any expense incurred by the Association in connection with the towing of any vehicle or equipment shall be paid to the Association upon demand by the owner of the vehicle or equipment. If the vehicle or equipment is owned by any Owner, any amounts payable to the Association shall be secured by the Assessment Lien, and the Association my enforce collection of such amounts in the same manner provided for in the Declaration for the collection of Assessments.
3.19 Variances: Diminution of Restrictions. The Architectural Committee may, at its option and in extenuating circumstances, grant variances from the restrictions set forth in this Article 3 if the Architectural Committee determines in its discretion that (i) a restriction would create an unreasonable hardship or burden on an Owner, Lessee, or Resident or a change of circumstances since the Recordation of this Declaration has rendered such restriction obsolete and (ii) that the activity permitted under the variance will not have any substantial adverse effect on the Owner, Lessees, and Residents of the Project and is consistent with the high quality of life intended for Residents of the Project. If any Restriction set forth in this Article 3 is adjudged or deemed to be invalid or unenforceable as written by reason of any federal, state, or local law, ordinance, rule, or regulation, then a court or the Board, as applicable, may interpret, construe, rewrite or revise such restriction to the fullest extent allowed by law, so as to make such restriction valid and enforceable. Such modification shall not serve to extinguish any restriction not adjudged or deemed to be unenforceable.
3.20 Drainage. No Residential Unit, structure, building, landscaping, fence, wall, or other Improvement shall be constructed, installed, placed, or maintained in any manner that would obstruct, interfere with, or change the direction or flow of water in accordance with the drainage plans for the Project, or any part thereof, or for any Lot as shown on the drainage plans on file with the country or municipality in which the Project is located.
3.21 Garage and Driveways. Garages shall be used only for the parking of vehicles and shall not be used or converted for living or recreational activities without the prior written approval of the Architectural Committee. Items may be stored in a garage so long as there is still sufficient space in the garage for the parking of at least one (1) passenger car.
3.22 Rooftop Air Conditioners Prohibited. No air conditioning units or appurtenant equipment may be mounted, installed, or maintained on the roof of any Residential Unit or other building so as to be Visible From Neighboring Property.
3.23 Basketball Goals and Backboards. No basketball goal or backboard shall be constructed or installed on any Lot without the prior written approval of the Architectural Committee.
3.24 Fences and Screen Walls. No fence or screen wall shall be constructed or installed on any Lot without the prior written approval of the Architectural Committee.
3.25 Leasing. Any agreement for the leasing, rental, or occupancy of a Residential Unit shall be in writing and a copy thereof shall be delivered to the Association before the term of the lease commences. Every lease shall provide that the terms of such lease shall be subject in all respects to the provisions of the Project Documents, and each Owner shall deliver to the Lessee of such Owner’s Residential Unit a copy of all such Project Documents. Said lease shall further provide that any failure by the Resident thereunder to comply with the terms of the Project Documents shall be a default under the lease. If any lease does not contain the foregoing provisions, such provisions shall nevertheless be deemed to be a part of the lease and binding on the Owner and Resident by virtue of their inclusion in this Declaration. No Owner shall be permitted to lease his Residential Unit for less than thirty (30) days for transient, hotel, seasonal, or rental pool purposes. Any Owner who shall lease a Residential Unit shall be responsible for assuring compliance by the Resident with the Project Documents.
Article 4: Easements
4.1 Utility Easement. There is hereby created an easement upon, across, over, and under the Lots for reasonable ingress, egress, installation, replacing, repairing, or maintaining of all utilities, including, but not limited to, gas, water, sewer, telephone, cable television, and electricity, By virtue of this easement, it shall be expressly permissible for the providing utility company to erect and maintain the necessary equipment on the Lots, but no sewers, electrical lines, water lines, or other utility or service lines may be installed or located on the Lots except as initially designed, approved, and constructed by the Declarant or as approaved by the Board.
4.2 Declarant’s Use for Sales and Leasing Purposes. Declarant shall have the right and an easement to maintain sales or leasing offices, management offices and models throughout the Project and to maintain more advertising… [Outdated. Remove.]
4.3 Declarant’s Easements. Declarant shall have the right… [Outdated. Remove.]
4.4 Easement in Favor of Association. The Lots are hereby made subject to the following easements in favor of the Association and its directors, officers, agents, employees, and independent contractors.
4.4.1 For inspection of the Lots in order to verify the performance
by Owners of all items of maintenance and repair for which they are responsible;
4.4.2 For inspection, maintenance, repair, and replacement of the Areas of Association Responsibility upon such Lots or accessible only from such Lots;
4.4.3 For correction of emergency conditions in one or more Lots;
4.4.4 For the purpose of enabling the Association, the Board, the Architectural Committee, or any other committees appointed by the Board to exercise and discharge their respective rights, powers, and duties under the Project Documents.
4.4.5 For inspection of the Lots in order to verify that the provisions of the Project Documents are being complied with by the Owners, their guests, Lessees, invitees, and the other occupants of the Lot.
4.5 Public Utility and Access Easement. The Public Utilities Easement and Access Easement over the Public Utility and Access Easement Area (as identified on the Plat) is granted for the purpose of (a) providing vehicular and pedestrian ingress and egress to each Lot from a publicly dedicated right-of-way for the benefit of the Owners of Lots, their families, invitees, licensees, Lessees, and contract vendees, and to the providers of services (including, without limitation, refuse collection and emergency services), (b) installing, operating, maintaining, and repairing public utilities, including, without limitation, water, sewer, gas, electricity, telephone, and cable television for the benefit of the applicable utility or service providers, and (c) drainage from the Lots. The Public Utility and Access Easement Area shall be maintained by the Association.
4.6 Drainage Easement. There is hereby created a drainage easement for the benefit of Owners of contiguous Residential Units for the purpose of permitting stormwater runoff from attached roofs to drain onto the contiguous Residential Units and the Lots upons which the Residential Units are situated.
4.7 Easement for Unintended Encroachments. To the extent that any Residential Unit encroaches upon any other Lot as a result of the original construction of Improvements upon Lots or the shifting or settling thereof, or alteration or restoration authorized by this Declaration, a valid easement for the encrochment, and for the maintenance thereof, exists.
Article 5: The Association; Organization; Membership and Voting Rights
5.1 Formation of Association. The Association shall be a nonprofit Utah corporation charged with the duties and invested with the powers prescribed by law as set forth in the Articles, Bylaws, and this Declaration. In the event of any conflict or inconsistency between this Declaration and the Articles, Bylaws, Association Rules, or Architectural Committee Rules, this Declaration shall control.
5.2 Board of Directors and Officers. The affairs of the Association shall be conducted by the Board and such officers as the Board may elect or appoint in accordance with the Articles and the Bylaws. Unless the Project Documents specifically require the vote or written consent of the Members, approvals or actions to be given or taken by the Association shall be valid if given or taken by the Board. The Board shall have the power to levy reasonable fines against an Owner for a violation of the Projet Documents by the Owner, a Lessee of the Owner, or by any Resident of the Owner’s Lot.
5.3 The Association Rules. The Board may, from time to time, and subject to the provision of this Declaration, adopt, amend, and repeal rules and regulations pertaining to: (i) the management, operation, an use of the Areas of Association Responsibility; (ii) minimum standards for any maintenance of Lots; or (iii) the health, safety, or welfare of the Owners and Residents. In the event of any conflict or inconsistency between the provisions of this Declaration and the Association Rules, the provisions of this Declaration shall prevail. The Association Rules shall be enforceable in the same manner and to the same extent as the covenants, conditions, and restrictions set forth in this Declaration.
5.4 Personal Liability. No member of the Board or of any committee of the Association, no officer of the Association, and no manager or other eployee of the Association shall be personally liable to any Member, or to any other person or entity, including the Association, for any damage, loss, or prejudice suffered or claimed on account of any act, omission, error, or negligence of the Association, the Board, the manager, any representative or employee of the Association, or any committee, committee member or officer of the Association; provided, however, the limitations set forth in this Section shall not apply to any person who has failed to act in good faith or has engaged in wilful or intentional misconduct.
5.5 Implied Rights. The Association may exercise any right or privelege given to the Association expressly by the Project Documents and every other right or privilege reasonably to be implied from the existence of any right or privilege given to the Association by the Project Documents or reasonably necessary to effectuate any such right or privilege.
5.6 Identity of Members. Membership in the Association shall be limited to Owners of Lots. An Owner of a Lot shall automatically, upon becoming the Owner thereof, be a Member of the Association and shall remain a Member of the Association until such time as his or her ownership ceases for any reason, at which time his or her membership in the Association shall automatically cease.
5.7 Classes of Members and Voting Rights. The Association shall have the following two classes of voting membership:
(1) Class A. Class A Members are all Owners, with the exception of the Declarant until the termination of the Class B membership, of Lots. Each Class A Member shall be entitled to one (1) vote for each Lot owned. Upon the termination of the Class B membership, the Declarant shall be a Class A Member so long as the Declarant owns any Lot.
(2) Class B. The Class B Member shall be the Declarant. The Class B Member shall be entitled to three (3) votes for each Lot owned. The Class B membership shall cease and be converted to Class A membership on the earliest of (i) the date on which the votes entitled to be cast by the Class A Members equals or exceeds the votes entitled to be cast by the Class B Member; (ii) the date which is seven (7) years after the Recording of this Declaration; or (iii) when the Declarant notifies the Association in writing that it relinquishes its Class B membership.
5.8 Voting Procedures. No change in the ownership of a Lot shall be effective for voting purposes unless and until the Board is given actual written notice of such change and is provided satisfactory proof thereof. The vote for each such Lot must be cast as a unit, and fractional votes shall not be allowed. In the event that a Lot is owned by more than one person or entity and such Owners are unable to agree among themselves as to how their vote or votes shall be cast, they shall lose their right to vote on the matter in question. If any Member casts a vote representing a certain Lot, it will thereafter be conclusively presumed for all purposes that he was acting with the authority and consent of all other Owners of the same Lot unless objection thereto is made at the time the vote is cast. In the event more than one vote is cast by a Class A Member for a particular Lot, none of the votes shall be counted and all of the votes shall be deemed void.
5.9 Transfer of Membership. The rights and obligations of any Member other than the Declarant shall not be assigned, transferred, pledged, conveyed, or alienated in any way except upon transfer of ownership of an Owner’s Lot, and then only to the transferee of ownership to the Lot. A transfer of ownership to a Lot may be effected by deed, intestate succession, testamentary disposition, foreclosure of a mortgage or deed of trust of Record, or such other legal process as now in effect or as may hereafter be stablished under or pursuant to the laws of the Sate of Utah. Any attempt to make a prohibited transfer shall be void. Any transfer of ownership to a Lot shall operate to transfer the membership appurtenant to said Lot to the new Owner thereof. Each Purchaser of a Lot shall notify the Association of his or her purchase within ten (10) days after he or she becomes the Owner of a Lot.
5.10 Architectural Committee. The Association shall have an Architectural Committee to perform the functions of the Architectural Committee set forth in this Declaration. The Architectural Committee shall be a Committee of the Board. The Architectural Committee shall consist of such number of regular members and alternate members as may be provided for in the Bylaws. So long as the Declarant owns any Lot, the Declarant shall have the sole right to appoint and remove the members of the Architectural Committee. At such time as the Declarant no longer owns any Lot, the members of the Architectural Committee shall be appointed by the Board. The Declarant may at any time voluntarily surrender its right to appoint and remove the members of the Architectural Committee, and in that event the Declarant my require, for so long as the Declarant owns any Lot, that specified actions of the Architectural Committee, as described in a Recorded instrument executed by the Declarant, be approved by the Declarant before they become effective. The Architectural Committee may promulgate architectural guidelines, standards, and procedures to be used in rendering its decision. Such guidelines, standards, and procedures may include, without limitation, provisions regarding: (i) the size of Residential Units; (ii) architectural design, with particular regard to the harmony of the design with the surrounding structures and typography; (iii) placement of Residential Units and other buildings; (iv) landscaping design, content, and conformance with the character of the Property and permitted and prohibited plants; (v) requirements concerning exterior color schemes, exterior finishes, and materials; (vi) signage; and (vii) screen wall design and appearance. The decision of the Architectural Committee shall be final on all matters submitted to it pursuant to this Declaration.
5.11 Suspension of Voting Rights. If any Owner fails to pay any Assessments or other amounts due to the Association under the Project Documents within fifteen (15) days after such payment is due, the Board of Directors shall have the right to suspend such Owner’s right to vote until such time as all payments, including interest and attorneys’ fees, are brought current. If any Owner violates any other provision of the Project Documents and such violation is not cured within fifteen (15) days after the Association notifies the Owner of the violation, the Board of Directors shall have the right to suspend such Owner’s right to vote until such infractions or violations of the Project Documents are corrected, provided such suspension shall not exceed sixty (60) days.
Article 6: Covenant for Assessments and Creation of Lien
6.1 Creation of Lien and Personal Obligation of Assessments. The Declarant, for each Lot owned by it, hereby covenants and agrees, and each Owner, other than the Declarant, by becoming the Owner of a Lot, is deemed to covenant and agree, to pay Assessments to the Association in accordance with this Declaration. All Assessments shall be established and collected as provided in this Declaration. The Assessments, together with interest, late charges, and all costs, including but not limited to reasonable attorneys’ fees, incurred by the Association in collecting or attempting to collect delinquent Assessments, whether or not suit is filed, shall also be the personal obligation of the person who was the Owner of the Lot at the time when the Assessment became due. The personal obligation for delinquent Assessments shall not pass to the successors in title of the Owner unless expressly assumed by them.
6.2 Annual Assessments
6.2.1 In order to provide for the operation and management of the Association and to provide funds for the Association to pay all Common Expenses and to perform its duties and obligations uder the Project Documents, including the establishment of replacement and maintenance reserves, the Board, for each Assessment Period shall assess against each Lot an Annual Assessment.
6.2.2 The Board shall give notice of the Annual Assessment to each Owner at least thirty (30) days prior to the beginning of each Assessment Period, but the failure to give such notice shall not affect the validity of the Annual Assessment established by the Board nor relieve any Owner from its obligation to pay the Annual Assessment. If the Board determines during any Assessment Period that the funds budgeted for that Assessment are, or will, become inadequate to meet all Common Expenses for any reason, including, without limitation, nonpayment of Assessment by Members, it may increase the Annual Assessment for that Assessment Period and the revised Annual Assessment shall commence on the date designated by the Board.
6.3 Rate of Assessment. The amount of the Annual Assessment for each Lot other than Lots owned by the Declarant shall be the amount obtained by dividing the total budget of the Association for the Assessment Period for which the Annual Assessment is being levied by the total number of Lots subject to the Assessment at the time the Annual Assessment is levied by the Board. The Annual Assessment for Lots owned by the Declarant shall be an amount equal to twenty-five percent (25%) of the Annual Assessment levied against Lots owned by Persons other than the Declarant. If a Lot ceases to qualify for the twenty-five percent (25%) rate of assessment during the period to which an Annual Assessment is attributable, the Annual Assessment shall be prorated between the applicable rates on the basis of the number of days in the Assessment Period that the Lot qualified for each rate.
6.4 Obligation of Declarant for Deficiencies. So long as there is a Class B membership in the Association, Declarant shall pay and contribute to the Association, within thirty (30) days after the end of each fiscal year of the Association, or at such other times as may be requested by the Board, such funds as may be necessary, when added to the Annual Assessments levied by the Association, to pay all Common Expenses of the Association as they become due.
6.5 Special Assessments. The Association may levy against each Lot which is then subject to assessment, in any Assessment Period, a Special Assessment for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair, or replacement of an Improvement upon the Areas of Association Responsibility, including fixtures and personal property related thereto, provided that any Special Assessment shall have the assent of two-thirds (99) of the votes entitled to be cast by Members who are voting in person or by proxy at a meeting duly called for such purpose, except as provided in Subsection 7.1.3 below.
6.6 Assessment Period. The period for which the Annual Assessment is to be levied (the “Assessment Period”) shall be the calendar year, except that the first Assessment Period, and the obligation of the Owners to pay Annual Assessments shall commence upon the conveyance of the first Lot to a Purchaser and terminate on December 31 of such year. The Board in its sole discretion from time to time may change the Assessment Period.
6.7 Commencement Date of Assessment Obligation. All Lots described on Exhibit A to this Declaration shall be subject to assessment upon the conveyance of the first Lot to a Purchaser. All Lots annexed pursuant to Section 2.2 of this Declaration shall be subject to assessment as of the date the Amendment annexing such Lots is recorded or a later date if provided for therein.
6.8 Rules Regarding Billing and Collection Procedure. Annual Assessments shall be collected on a monthly or quarterly basis or such other basis as may be selected by the Board. Special Assessments may be collected as specified by the Board. The Board shall have the right to adopt rules and regulations setting forth procedures for the purpose of making Assessments and for the billing and collection of the Assessments provided that the procedures are not inconsistent with the provisions of this Declaration. The failure of the Association to send a bill to a Member shall not relieve any Member of his liability for any Assessment or charge under this Declaration, but the Assessment Lien therefor shall not be foreclosed until the Member has been given not less than thirty (30) days written notice prior to such foreclosure that the Assessment or any installation thereof is or will be due and of the amount owing. Such notice may be given at any time prior to or after delinquency of such payment. The Association shall be under no duty to refund any payments received by it even though the ownership of a Lot changes during an Assessment Period bt successor Owners of Lots shall be given credit for prepayments on a prorated basis, made by prior Owners.
6.9 Effect of Nonpayment of Assessments: Remedies of the Association
6.9.1 Any Assessment, or any installment of an Assessment, not paid within five (5) days after the Assessment, or the installment of the Assessment, first became due shall bear interest from the due date at the rate of twelve percent (12%) per annum or the prevailing VA/FHA interest rate for new home loans, whichever is higher. In addition, the Board of Directors may establish a late fee to be charged to any Owner who has not paid any Assessment, or any installment of an Assessment, within five days after such payment was due.
6.9.2 The Association shall have a lien on each Lot for: (i) all Assessments levied against the Lot; (ii) all interest, lien fees, late charges and other fees and charges assessed against the Lot or payable by the Owner of the Lot; (iii) all fines levied against the Owner of the Lot; (iv) all attorney fees, court costs, title report fees, costs and fees charged by any collection agency either to the Association or to an Owner and any other fees or costs incurred by the Association in attempting to collect Assessments or other amounts due to the Association by the Owner of a Lot; (v) any amounts payable to the Association pursuant to Section 7.3 or 7.4 of this Declaration; and (vi) any other amounts payable to the Association pursuant to the Project Documents. The Recording of this Declaration constitutes record notice and perfection of the Assessment Lien. The Association may, at its option, Record a Notice of Lien setting forth the name of the delinquent owner as shown in the records of the Association, the legal description or street address of the Lot against which the Notice of Lien is Recorded, and the amount claimed to be past due as of the date of the Recording of the Notice, including interest, lien recording fees, and reasonable attorneys’ fees. Before Recording any Notice of Lien against a Lot, the Association shall make a written demand to the defaulting Owner for payment of the delinquent Assessments, together with interest, late charges, and reasonable attorneys’ fees, if any. The demand shall state the date and amount of the delinquency. Each default shall constitute a separate basis for a demand, but any number of defaults may be included within the single demand. If the delinquency is not paid within ten (10) days after delivery of the demand, the Association may proceed with Recording a Notice of Lien against the Lot.
6.9.3 The Assessment Lien shall have priority over all liens or claims except for: (i) tax liens for real property taxes; (ii) assessments in favor of any municipal or other governmental body; and (iii) the lien of any First Mortgage. Any First Mortgagee or any other Person acquiring title or coming into possession of a Lot through foreclosure of the First Mortgage, purchase at a foreclosure sale or trustee sale, or through any equivalent proceedings, such as, but not limited to, the taking of a deed in lieu of foreclosure shall acquire title free and clear of any claims for unpaid assessments and charges against the Lot which became payable prior to the acquisition of such Lot by the First Mortgagee or other Person. Anny Assessments and charges against the Lot which accrue prior to such sale or transfer shall remain the obligation of the defaulting Owner of the Lot.
6.9.4 The Association shall not be obligated to release the Assessment Lien until all delinquent Assessments, interest, lien fees, fines, reasonable attorneys’ fees, court costs, collection costs, and all other sums payable to the Association by the Owner of the Lot have been paid in full.
6.9.5 The Association shall have the right, at its option, to enforce collection of any delinquent Assessments together with interest, lien fees, reasonable attorneys’ fees, and any other sums due to the Association in any manner allowed by law including, but not limited to, bringing an action to foreclose the Assessment Lien against the Lot in the manner provided by law for the foreclosure of a realty mortgage, or a trust deed (the Board shall have the power to appoint any Utah title company or attorney to act as trustee in the foreclosure process). The Association shall have the power to bid at any foreclosure sale and to purchase, acquire, hold, lease, mortgage, and convey any and all Lots purchased at such sale.
6.10 Evidence of Payment of Assessments. Upon receipt of a written request by a Member or any other Person, the Association, within a reasonable period of time thereafter, shall issue to such neither or other Person a written certificate stating that all Assessments, interest, and other fees and charges have been paid with respect to any specified Lot as of the date of such certificate, or if all Assessments have not been paid, the amount of such Assessments, interest, fees, and charges due and payable as of such date. The Association may make a reasonable charge for the issuance of such certificates, which charges must be paid at the time the request for any such certificate is made. Any such certificate, when duly issued as herein provided, shall be conclusive and binding with respect to any matters therein stated as against any bona fide Purchaser of, or lender on, the Lot in question.
6.11 Purposes for Which Association’s Funds May Be Used. The Association shall apply all funds and property collected and received by it (including the Assessments, fees, loan proceeds, surplus funds, and all funds and property received by it from any other source) for the common good and benefit of the Project and the Owners and Residents by devoting said funds and property, among other things, to the acquisition, construction, alteration, maintenance, provision, and operation, by any manner or method whatsoever, of any and all land, properties, improvements, facilities, services, projects, programs, studies, and systems, within or without the Project, which may be necessary, desirable, or beneficial to the general common interests of the Project, the Owners, and the Residents. The following are some, but not all, of the areas in which the Association may seek to aid, promote, and provide for such common benefit: social interaction among Members and Residents, maintenance of landscaping on Areas of Association Responsibility and drainage areas within the Project, recreation, liability, and property damage insurance, communications, ownership, and operation of vehicle storage areas, education, transportation, health, utilities, public services, safety, and indemnification of officers and directors of the Association. The Association may also expend its funds under the laws of the State of Utah or such municipality’s charter.
6.12 Surplus Funds. The Association shall not be obligated to spend in any year all the Assessments and other sums received by it in such year, and may carry forward as surplus any balances remaining. The Association shall not be obligated to reduce the amount of the Annual Assessment in the succeeding year if a surplus exists from a prior year, and the Association may carry forward from year to year such surplus as the Board in its discretion may determine to be desirable for the greater financial security of the Association and the accomplishment of its purposes.
6.13 Working Capital Fund. To ensure that the Association shall have adequate funds to meet its expenses or to purchase necessary equipment or services, each Purchaser of a Lot from the Declarant shall pay to the Association immediately upon becoming the Owner of the Lot a sum equal to one-sixth (1/6th) of the current Annual Assessment for the Lot. Funds paid to the Association pursuant to this Section may be used by the Association for payment of operating expenses or any other purpose permitted under the Project Documents. Payments made pursuant to this Section shall be nonrefundable and shall not be considered as an advance payment of any Assessments levied by the Association pursuant to this Declaration.
6.14 Transfer Fee. Each Purchaser of a Lot shall pay to the Association immediately upon becoming the Owner of the Lot a transfer fee in such amount as is established from time to time by the Board.
Article 7: Maintenance
7.1 Areas of Association Responsibility. The Association shall be responsible for the following:
7.1.1 Maintaining, repairing, replacing, repainting, and otherwise keeping in good order and repair the roofs, exterior walls, and all other exterior surfaces of the Residential Units which are Visible From Neighboring Property, except windows and window screens.
7.1.2 Maintaining, repairing, replacing, repainting, and otherwise keeping in good order and repair the Public Utility and Access Easement Area, including the sewer lines and all other utility lines located in the Easement Area which serve the lots and are not maintained by the utility companies providing service.
7.1.3 The cost of all domestic water to be delivered to the Lots and the cost of maintaining, repairing, replacing, and otherwise keeping in good order and repair the water lines which run from the water meter to the Residential Units. As of the date this Declaration is Recorded, domestic water service shall be provided to the Lots by Draper Irrigation Company (“Draper”). The usage of such water shall be measured through one common meter for the Project. Draper shall be entitled to separately meter and bill the Owner of each Lot for domestic water service if (i) the Association is dissolved, or (ii) the Association fails to timely pay to Draper the cost of water delivered to the Lots, and in such event, each Owner shall be responsible for the cost charged by Draper to install a separate meter to such Owner’s Lot and the cost of all domestic water delivered thereafter to such Lot. Failure by an Owner to timely pat to Draper the cost of water delivered to such Owner’s Lot shall entitle Draper to lien such Lot in the same manner as set forth in Section 6.9 of this Declaration. The Owners shall be entitled to separately meter and individually pay for domestic water service upon the written approval or the affirmative vote, or any combination thereof, of owners of not less than seventy-five percent (75%) of the Lots. In such event, the cost of installing separate meters and any other costs and expenses of separate meters shall be paid equally by each Owner by the levy of a Special Assessment.
7.1.4 Maintaining, replacing, watering, trimming, weeding, fertilizing, and otherwise caring for all landscaping, including all water and electric costs, irrigation lines and facilities, serving the front, side, and back yards of each Lot, all with such frequency and in such a manner as may be determined by the Board from time to time in its discretion; provided that the Association shall not be required to perform any maintenance of flowers, plants, or other landscaping planted by an Owner or Resident.
7.1.5 The Association may, if deemed appropriate by the Board, provide for termite or other pest control, but if the Association does not do so, each Owner will be responsible for performing (or causing to be performed) termite and pest control service to keep the Lot free from termite and pest infestation.
7.1.6 The cost of the performance by the Association of its duties under this Section 7.1 shall be a Common Expense and shall be paid for by the Association. The Board shall be the sole judge as to the appropriate maintenance of all items for which the Association is responsible under this Section 7.1 and all Owners shall cooperate with the Board in any way required by the Board in order for the Board to fulfill its obligations under this Section.
7.2 Duties of Owners. Each Owner shall maintain, repair, and replace, at such Owner’s expense, all portions of such Owner’s Lot and all Improvements situated thereon not required to be maintained, repaired, and replaced by the Association pursuant to Section 7.1 in good condition and repair, including, but not limited to, screens, screen doors or windows or other glass in or on any Residential Unit or other structure or Improvement situated thereon; all sewer and water pipes, plumbing, electrical, heating, ventilating and air conditioning units, heat pumps, condensers, or other systems or equipment of any kind or nature on or in any Residential Unit (whether ground-mounted or mounted on the roof or wall of a Residential Unit); all plumbing fixtures and appliances within a Residential Unit; and grass, hedges, shrubs, vines, plants, and other landscaping within any enclosed area of a Lot or Residential Unit. No yard equipment, wood piles or storage areas may be maintained so as to be Visible From Neighboring Property. All Lots upon which no Residential Unit has been constructed shall be maintained in a weed-free and attractive manner.
7.3 Assessment of Certain Costs of Maintenance and Repair. In the event that the need for maintenance or repair of an Area of Association Responsibility is caused through the willful or negligent act of any Owner, his family, tenants, guests, or invitees, the cost of such maintenance or repairs shall be paid by such Owner to the Association upon demand, and payment of such amounts shall be secured by the Assessment Lien.
7.4 Improper Maintenance and Use of Lots. In the event any portion of any Lot is so maintained as to present a public or private nuisance, or as to substantially detract from the appearance or quality of the surrounding Lots or other areas of the Project which are substantially affected thereby or related thereto, or in the event any portion of a Lot is being used in a manner which violates this Declaration; or in the event the Owner of any Lot is failing to perform any of its obligations under the Project Documents, the Board may make a finding to such effect, specifying the particular condition or conditions which exist, and pursuant thereto give notice thereof to the offending Owner that unless corrective action is taken within fourteen (14) days, the Board may cause such action to be taken at said Owner’s cost. If at the expiration of said fourteen-day period of time the requisite corrective action has not been taken, the Board shall be authorized and empowered to cause such action to be taken and the cost thereof shall be paid by such Owner to the Association upon demand and payment of such amounts shall be secured by the Assessment Lien.
7.5 Common Walls. The rights and duties of Owners of Lots with respect to common walls shall be as follows:
7.5.1 The owners of contiguous Residential Units who have a common wall shall both equally have the right to use such wall provided that such use by one Owner does not interfere with the use and enjoyment of same by the other Owner;
7.5.2 In the event that any common wall is damaged or destroyed through the act of an Owner, it shall be the obligation of such Owner to rebuild and repair the common wall without cost to the other Owner;
7.5.3 In the event any such common wall is damaged or destroyed by some cause other than the act of one of the adjoining Owners, such Owner’s agents, tenants, licensees, guests, or family (including ordinary wear and tear and deterioration from lapse of time), then, in such event, the Association shall proceed forthwith to rebuild or repair the same to as good condition formerly as a Common Expense;
7.5.4 Notwithstanding any other provision of this Section, an Owner who, by a negligent or willful act, causes any common wall to be exposed to the elements shall bear the whole cost of furnishing the necessary protection against such elements;
7.5.5 The right of any 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;
7.5.6 In addition to meeting the other requirements of this Declaration and of any other building code or similar regulations or ordinances, any Owner proposing to modify, make additions to or rebuild a common wall shall first obtain the written consent of the adjoining Owner; and
7.5.7 In the event any common wall encroaches upon a Residential Unit, a valid easement for such encroachment and for the maintenance of the common wall shall and does exist in favor of the Owners of the Residential Units which share such common wall.
Article 8: Insurance
8.1 Scope of Coverage. Commencing not later than the time of the first conveyance of a Lot to a Purchaser, the Association shall maintain, to the extent reasonably available, the following insurance coverage:
8.1.1 Comprehensive general liability insurance, including medical payments insurance, in an amount determined by the Board, but not less than $1,000,000. Such insurance shall cover all occurrences commonly insured against for death, bodily injury, and property damage arising out of or in connection with the use, ownership, or maintenance of the Areas of Association Responsibility and all other portions of the Project which the Association is obligated to maintain under this Declaration, and shall also include hired automobile and non-owned automobile coverages with cost liability endorsements to cover liabilities of the Owner as a group to an Owner;
8.1.2 Property insurance on the Residential Units and privacy walls on Residential Units, exclusive of Improvements and betterments installed in Residential Units by Owners, issued under a standard form “All Risks of Direct Physical Loss Form” value in an amount equal to the maximum insurable replacement value of the Residential Units, as determined by the Board; provided, however, that the total amount of insurance after application of any deductibles shall not be less than one hundred percent (100%) of the current replacement cost, without deduction for depreciation, of the insured property at the time the insurance is purchased and at each renewal date, exclusive of land, excavations, foundations, and other items normally excluded from a property insurance policy. The Association will not be obligated to obtain or maintain insurance coverage with respect to the contents of any Residential Unit other than fixtures (i.e., non-fixed appliances will not be covered).
8.1.3 Workmen’s compensation insurance to the extent necessary to meet the requirements of the laws of Utah;
8.1.4 Directors’ and officers’ liability insurance covering all the directors, officers, and committee members of the Association in such limits as the Board may determine from time to time.
8.1.5 Such other insurance as the Association shall determine from time to time to be appropriate to protect the Association or the Owners;
8.1.6 The insurance policies purchased by the Association shall, to the extent reasonably available, contain the following provisions: (i) that there shall be no subrogation with respect to the Association, its agents, servants, and employees, with respect to Owners and members of their household; (ii) no act or omission by any Owner, unless acting within the scope of his authority on behalf of the Association, will void the policy or be a condition to recovery on the policy; (iii) that the coverage afforded by such policy shall not be brought into contribution or proration with any insurance which may be purchased by Owners or their mortgagees or beneficiaries under deeds of trust; (iv) a “severability of interest” endorsement which shall preclude the insurer from denying the claim of an Owner because of the negligent acts of the Association or other Owners; (v) statement of the name of the insured as the Association; and (vi) for policies of hazard insurance, a standard mortgagee clause providing that the insurance carrier shall notify the first mortgagee named in the policy at least thirty (30) days in advance of the effective date of any substantial modification, reduction, or cancellation of the policy;
8.2 Insurance Obtained by Owners. The issuance of insurance policies to the Association pursuant to this Article shall not prevent an Owner from obtaining insurance for such Owner’s own benefit and it will be the responsibility of each Owner to provide, as such Owner sees fit and at such Owner’s own expense, such fire, liability, theft, and any other insurance as such Owner may desire covering any and all contents or other personal property upon such Owner’s Lot or in the Residential Unit or other structure(s) on such Owner’s Lot. In addition, the expenses of any alternative accommodation for an Owner and any Resident of such Owner’s Residential Unit following any damage to or destruction of the Residential Unit on a Lot, and during any period of repair, reconstruction, restoration, or replacement of such Residential Unit will be the responsibility of that Owner or those Residents (or both), and not of the Association or any other Owner, nor will those expenses be covered by insurance obtained by the Association. Any Owner or Resident may, at such owner’s or Resident’s sole expense, obtain separate insurance, if available, covering such alternative accommodation expenses.
8.3 Certificates of Insurance. An insurer that has issued an insurance policy under this Article shall issue a certificate or a memorandum of insurance to the Association and, upon request, to any Owner, mortgagee, or beneficiary under a deed of trust. Any insurance obtained pursuant to this Article may not be cancelled until thirty (30) days after notice of the proposed cancellation has been mailed to the Association, each Owner and each mortgagee or beneficiary under a deed of trust to whom certificates of insurance have been issued.
8.4 Payment of Premiums. The premiums for any insurance obtained by the Association pursuant to Section 8 of this Declaration shall be included in the budget of the Association and shall be paid by the Association.
8.5 Payment of Insurance Proceeds. With respect to any loss to any Area of Association Responsibility covered by property insurance obtained by the Association in accordance with this Article, the loss shall be adjusted with the Association, and the insurance proceeds shall be payable to the Association and not to any mortgagee or beneficiary under a deed of trust. Subject to the provisions of Section 8.6 of this Declaration, the proceeds shall be disbursed for the repair or restoration of the damage to the Area of Association Responsibility.
8.6 Repair and Replacement of Damaged or Destroyed Property. Any portion of the Areas of Association Responsibility which is damaged or destroyed shall be repaired or replaced promptly by the Association unless (i) repair or replacement would be illegal under any state or local health or safety statute or ordinance, or (ii) Owners representing at least eighty percent (80%) of the total authorized votes in the Association vote not to rebuild. The cost of repair or replacement in excess of insurance proceeds and reserves shall be paid by the Association. If all of the Areas of Association Responsibility are not repaired or replaced, insurance proceeds attributable to the damaged Areas of Association Responsibility shall be used to restore the damaged area to a condition which is not in violation of any state or local health or safety statute or ordinance and the remainder of the proceeds shall either (i) be retained by the Association as an additional capital reserve or (ii) be used for payment of operating expenses of the Association if such action is approved by the affirmative vote or written consent, or any combination thereof, of Members representing more than fifty percent (50%) of the votes in the Association.
Article 9: General Provisions
9.1 Enforcement. The Association or any Owner shall have the right to enforce the Project Documents in any manner provided for in the Project Documents or by law or in equity, including, but not limited to, an action to obtain an injunction to compel removal of any Improvements constructed in violation of this Declaration or to otherwise compel compliance with the Project Documents. The failure of the Association or an Owner to take enforcement action with respect to a violation of the Project Documents shall not constitute or be deemed a waiver of the right of the Association or any Owner to enforce the Project Documents in the future. If any lawsuit is filed by the Association or any owner to enforce the provisions of the Project Documents or in any other manner arising out of the Project Documents or the operations of the Association, the prevailing party in such action shall be entitled to recover from the other party all attorney fees incurred by the prevailing party in the action.
9.2 Term; Method of Termination. This Declaration shall continue in full force and effect for a term of twenty (20) years from the date this Declaration is Recorded, after which time, this Declaration shall be automatically extended for successive periods of ten (10) years each. This Declaration may be terminated at any time if such termination is approved by the affirmative vote or written consent, or any combination thereof, of the Owners representing ninety percent (90%) or more of the votes in each class of membership and by the holders of First Mortgages on Lots, the Owners of which have seventy-five percent (75%) or more of the votes in the Association. If the necessary votes and consents are obtained, the Board shall cause to be Recorded a Certificate of Termination, duly signed by the President or Vice President and attested by the Secretary or Assistant Secretary of the Association, with their signatures acknowledged. Thereupon this Declaration shall have no further force and effect, and the Association shall be dissolved pursuant to the terms set forth in its Articles.
9.3.1 Except for amendments made pursuant to Subsection 9.3.2 or 9.3.5 of this Declaration, the Declaration may only be amended by the written approval or the affirmative vote, or any combination thereof, of Owners of not less than seventy-five percent (75%) of the Lots.
9.3.2 The Declarant, so long as the Declarant owns any Lot, and thereafter, the Board, may amend this Declaration or the Plat, without obtaining the approval or consent of any Owner or First Mortgagee, in order to conform to this Declaration or the Plat to the requirements or guidelines of the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, the Federal Housing Administration, the Veterans Administration or any federal, state, or local governmental agency whose approval of the Project, the Plat, or the Project Documents is required by law or requested by the Declarant or the Board.
9.3.3 So long as the Declarant owns any Lot, any amendment to this Declaration must be approved in writing by the Declarant.
9.3.4 So long as there is a Class B membership in the Association, any amendment to this Declaration must have the prior written approval of the Veterans Administration or the Federal Housing Administration.
9.3.5 The Declarant, so long as the Declarant owns any Lot, and thereafter, the Board, may amend this Declaration without the consent of any other Owner to correct any error or inconsistency in the Declaration.
9.3.6 So long as the Declarant owns more than seventy-five percent (75%) of the Lots subject to this Declaration, any amendment to this Declaration shall be signed by Declarant and Recorded. At any time the Declarant does not own at least seventy-five percent (75%) of the Lots subject to this Declaration, any amendment approved pursuant to Subsection 9.3.1 of this Declaration or by the Board pursuant to Subsection 9.3.2 or 9.3.5 of this Declaration shall be signed by the President or Vice President of the Association and shall be Recorded, and any such amendment shall certify that the amendment has been approved as required by this Section. Any amendment shall certify that the amendment has been approved as required by this Section. Any amendment made by the Declarant pursuant to Subsection 9.3.2 or
9.3.5 of this Declaration shall be signed by the Declarant and Recorded. Unless a later effective date is provided for in the amendment, any amendment to this Declaration shall be effective upon the Recording of the amendment.
9.4 Rights of First Mortgages.
9.4.1 Any First Mortgagee will, upon written request, be entitled to: (i) inspect the books and records of the Association during normal business hours; (ii) receive within ninety (90) days following the end of any fiscal year of the Association a financial statement of the Association for the immediately preceding fiscal year of the Association, free of charge to the requesting party; and (iii) receive written notice of all meeting of the Members of the Association and be permitted to designate a representative to attend all such meetings.
9.4.2 No Lot shall be partitioned or subdivided without the prior written approval of the holder of any First Mortgage on such Lot.
9.4.3 Unless at least two-thirds (⅔) of the First Mortgagees (based upon one vote for each First Mortgage owned) of Owners (other than the sponsor, developer, or builder) of at least two-thirds
(⅔) of the Lots have given their prior written approval, the Association shall not be entitled to:
(i) Change the method of determining the obligations, assessments, dues, or other charges which may be levied against an Owner;
(ii) Change, waive, or abandon any scheme or regulations, or enforcement thereof, pertaining to the architectural design or the exterior appearance of Lots;
(iii) Fail to maintain fire and extended coverage insurance on Areas of Association Responsibility on a current replacement cost basis in an amount of at least 100 percent (100%) of insurable value;
(iv) Use hazard insurance proceeds for losses to any Area of Association Responsibility other than the repair, replacement, or reconstruction of such Area of Association Responsibility.
9.4.4 Any First Mortgagee who receives a written request from the Board to respond to or consent to any action requiring the consent of the First Mortgagee shall be deemed to have approved such action if the Association has not received a negative response from such First Mortgage within thirty (30) days of the date of the Association’s request.
9.4.5 In the event of any conflict or inconsistency between the provisions of this Section and any other provision of the Project Documents, the provisions of this Section shall prevail; provided, however, that in the event of any conflict or inconsistency between the provisions of this Section and any other provisions of the Project Documents with respect to the number or percentage of Owners or First Mortgagees that must consent to (i) an amendment of the Declaration, Articles, or Bylaws, (ii) a termination of the Project, or (iii) certain actions of the Association as specified in Subsection 9.4.3 of this Declaration, the provision requiring the consent of the greatest number or percentage of Owners or First Mortgagees shall prevail; provided, however, that the Declarant, so long as the Declarant owns any Lot, and thereafter, the Board, without the consent of any Owner or First Mortgagee being required, shall have the right to amend this Declaration, the Articles, or the Bylaws in order to conform this Declaration, the Articles, or the Bylaws to the requirements or guidelines of the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, the Federal Housing Administration, the Veterans Administration, or any federal, state, or local government agency whose approval of the Project, the Plat, or the Project Documents is required or requested by the Declarant or the Board.
9.5 Interpretation. Except for judicial construction, the Association shall have the exclusive right to construe and interpret the provisions of this Declaration. In the absence of any adjudication to the contrary by a court of competent jurisdiction, the Association’s construction or interpretation of the provisions hereof shall be final, conclusive, and binding as to all persons and property benefitted or bound by this Declaration. In the event of any conflict between this Declaration and the Articles, Bylaws, Association Rules, or Architectural Committee Rules, this Declaration shall control. In the event of any conflict between the Articles and the Bylaws, the Articles shall control. In the event of any conflict between the Bylaws and the Association Rules or the Architectural Committee Rules, the Bylaws shall control.
9.6 Severability. Any determination by any court of competent jurisdiction that any provision of this Declaration is invalid or unenforceable shall not affect the validity or enforceability of any of the other provisions hereof.
9.7 Rule Against Perpetuities. If any interest purported to be created by this Declaration is challenged under the Rule against Perpetuities or any related rule, the interest shall be construed as becoming void and of no effect as of the end of the applicable period of perpetuities computed from the date when the period of perpetuities starts to run on the challenged interest; the “lives in being” for computing the period of perpetuities shall be (i) those which would be used in determining the validity of the challenged interest, plus (ii) those of the issue of the Board who are living at the time the period of perpetuities starts to run on the challenged interest.
9.8 Change of Circumstances. Except as otherwise expressly provided in this Declaration, no change of conditions or circumstances shall operate to extinguish, terminate, or modify any of the provisions of this Declaration.
9.9 Notice of Violation. The Association shall have the right to Record a written notice of a violation by any Owner or Resident of any restriction or other provision of the Project Documents. The notice shall be executed by an officer of the Association and shall contain substantially the following information: (i) the name of the Owner or Resident violating, or responsible for the violation of, the Project Documents; (ii) the legal description of the Lot against which the notice is being Recorded; (iii) a brief description of the nature of the violation; and (v) a statement of the specific steps which must be taken by the Owner or occupant to cure the violation. Recordation of a notice of violation shall serve as notice to the Owner and Resident, and any subsequent purchaser of the Lot, that there is such a violation. If, after the Recordation of such notice, it is determined by the Association that the violation referred to in the notice does not exist or that the violation referred to in the notice has been cured, the Association shall Record a notice of compliance which shall state the legal description of the Lot against which the notice of violation was Recorded, and the recording data of the notice of violation, and shall state that the violation referred to in the notice of violation has been cured or that the violation did not exist. Failure by the Association to Record a notice of violation shall not constitute a waiver of any such violation, constitute any evidence that no violation exists with respect to a particular Lot, or constitute a waiver of any right of the Association to enforce the Project Documents.
9.10 Laws, Ordinances, and Regulations.
9.10.1 The covenants, conditions, and restrictions set forth in this Declaration and the provisions requiring Owners and other persons to obtain the approval of the Board or the Architectural Committee with respect to certain actions are independent of the obligation of the Owners and other persons to comply with all applicable laws, ordinances, and regulations, and compliance with this Declaration shall not relieve an Owner or any other person from the obligation to also comply with all applicable laws, ordinances, and regulations.
9.10.2 Any violation of any state, municipal, or local law, ordinance, or regulation pertaining to the ownership, occupation, or use of any property within the Property is hereby declared to be a violation of this Declaration and subject to any or all of the enforcement procedures set forth herein.
9.11 References to this Declaration in Deeds. Deeds to and instruments affecting any Lot or any other part of the Project may contain the covenants, conditions, and restrictions herein set forth by reference to this Declaration; but regardless of whether any such reference is made in any Deed or instrument, each and all of the provisions of this Declaration shall be binding upon the grantee-Owner or other person claiming through any instrument and his heirs, executors, administrators, successors, and assignees.
9.12 Gender and Number. Wherever the context of this Declaration so requires, words used in the masculine gender shall include the feminine and neuter genders; words used in the neuter gender shall include the masculine and feminine genders; words in the singular shall include the plural; and words in the plural shall include the singular.
9.13 Captions and Titles. All captions, titles, or headings of the Articles and Sections in this Declaration are for the purpose of reference and convenience only and are not to be deemed to limit, modify, or otherwise affect any of the provisions hereof or to be used in determining the intent of context thereof.
9.14 Notices. If notice of any action or proposed action by the Board or any committee or of any meeting is required by applicable law, this Declaration or resolution of the Board to be given to any Owner, Lessee, or Resident then, unless otherwise specified herein or in the resolution of the Board, such notice requirement shall be deemed satisfied if notice of such action or meeting is published once in any newspaper in general circulation within Salt Lake County. This Section shall not be construed to require that any notice be given if not otherwise required and shall not prohibit satisfaction of any notice requirement in any other manner.
9.15 FHA/VA Approval. So long as there is a Class B membership in the Association, the following actions shall require the prior written approval of the Federal Housing Administration or the Veterans Administration: annexation of additional properties and an amendment to this Declaration.
9.16 No Absolute Liability. No provision of the Project Documents shall be interpreted or construed as imposing on Owners absolute liability for damage to the Lots. Owners shall only be responsible for damage to the Lots caused by the Owners’ negligence or intentional acts.
9.17 References to VA and FHA. In various places throughout the Project Documents, references are made to the Department of Veterans Affairs (“VA”) and the Federal Housing Administration (“FHA”) and, in particular, to various consents or approvals required of either or both of such agencies. Such references are included so as to cause the Project Documents to meet certain requirements of such agencies should Declarant request approval of the Project by either or both of those agencies. However, Declarant shall have no obligation to request approval of the Project by either or both of such agencies. Unless and until the VA or the FHA have approved the Project as acceptable for insured or guaranteed loans and at any time during which such approval, once given, has been revoked, withdrawn, cancelled or suspended and there are no outstanding mortgages or deeds of trust Recorded against a Lot to secure payment of an insured or guaranteed loan by either or such agencies, all references herein to required approvals or consents of such agencies shall be deemed null and void and of no force and effect.