Article 15 – General Provisions ……………………………………………………….        63

Signature Page ……………………………………………………………………….…       67

Exhibit A – Legal Description of “Properties”……………………………...…………        69

Exhibit B – ARC Submittal Checklist ……………………….………………………..         70

Exhibit C – Fire Plan……………………………………………………………………        73

Exhibit D -  Forest Service Easement …………………………………………………        76

Article 1 – Definitions

This declaration is made by Sharpe Enterprises, LLC, a State of Nevada Limited Liability Company, the Declarant in relation to this document, and Elk Run Homeowners Association, Inc., an Idaho non-profit corporation, the Association.

Whereas:

1. Declarant owns certain real property located in Boise County, Idaho, on which Declarant intends to subdivide and construct Improvements for subdivision approval through Boise County Planning and Zoning, and plans to market and sell buildable Lots intended for single Family detached rural Residential planned communities to be known as Elk Run.

2. The property to be initially covered by these CC&Rs is particularly described in
   Exhibit A.

3. Declarant intends that upon recording of these CC&Rs that the property in Exhibit A shall be a rural residential subdivision in accordance with Boise County regulations.

4. The name of the subdivision within this planned development community shall be Elk Run, and the name of the non-profit Association organized in connection therewith shall be Elk Run Homeowners Association, Inc.

5. Declarant reserves the right at future points in time to add additional adjoining and proximate real Properties to this development and to this subdivision.

6. Declarant intends to develop buildable single Family rural residential Lots for saleable conveyance to individual Owners pursuant to a generally approved plan through Boise County Planning and Zoning.

7. Declarant has deemed it desirable, for the effective and efficient preservation of the value and amenities of the original property described in Exhibit A and any annexed Properties at future points in time into the subdivision, to organize an Association to which elements as defined in this CC&R document is charged with administering and enforcing all covenants and restrictions, and collecting and disbursing the Assessments and charges hereinafter created. Declarant has caused the Association to be formed for the purpose of exercising such functions.

This document is intended to set forth a dynamic and flexible plan for governance of the developed Community, and for the overall development, administration, maintenance and preservation of a unique rural residential community, in which each individual property Owner will enjoy a quality of lifestyle in the ethos of good neighbors. Furthermore, this document is designed to protect the value, attractiveness, and compatibility and conformity of use for the various Lots and Common Areas located therein. 

This document is also intended to set forth and be the Association’s Bylaws adopted by the Board as evidenced by the execution hereof by the Board.

Now therefore, Declarant hereby declares that all of the original property (and from the dates of potential future annexation all Annexed Property) shall be held, sold, conveyed, encumbered, hypothecated, leased, used, occupied and improved subject to the following protective covenants, conditions, restrictions, reservations, easements, equitable servitudes, liens and charges, all of which are for the purpose of uniformly enhancing and protecting the value, attractiveness and desirability of the Properties contained within. The protective covenants, conditions, restrictions, reservations, easements, and equitable servitudes set forth herein are designed to further a general plan for the protection, maintenance, subdivision improvement, and sale and lease, of the individual Properties. These CC&Rs shall run with the burden of the individually owned Properties and shall be binding upon all persons having or acquiring any right, title, or interest in any of the individually owned Properties; or any heirs, successors and assigns. All development sites within this subdivision shall be used, improved and limited exclusively to single Family rural residential use; and all Articles within this CC&R document shall be binding upon and enforced by the Declarant, the Association, and by each individual property Owner.  

Definitions

Annexed Property – Any adjacent or proximate real property that from time to time may be added to the subdivision by the Declarant.

ARC – The architectural review committee as more fully described herein below duly charged with review and approval of any Improvements to individual Lots, or subdivision common areas as described within this document as necessary to review. The ARC is generally charged with review and the approval or disapproval of each application for the construction of a Residential Dwelling and all Improvements on a particular  Lot and to take those other actions authorized by this document.

Articles – The Articles of Incorporation as filed in the office of the Idaho Secretary of State.

Assessments – Any individual property Owner, common to all community property Owners, annual, or special monetary Assessments as determined necessary by the Declarant and/or Association to ensure the maintenance, upkeep, and valuation of the subdivision and all individual Properties therein.

Associate Member – The owners of individual parcels of property that adjoin the Elk Run subdivision within the section of land known generally as Whispering Pines and the owners of the Ivy dale Church Camp which adjoins the Elk Run Subdivision to the south. Associate Members are explicitly defined as having rights of ingress and egress across all subdivision roadways, however, are limited to this right alone, with no voting rights, or  informational and/or organizational contribution rights as described in this document for Association Membership.

Association – The Elk Run Homeowners Association, Inc., including its successors and assigns. Rules shall generally be interpreted as the rules of the Association. 

Association Funds – The accounts created by the Association for purposes of receipts and disbursements of the Association per the procedures described within this document.

Board – The duly elected Board of Directors of the Association.

Budget – A written and itemized estimate of expenses to be incurred by the Association in performing its functions under this document, prepared and distributed to all subdivision home owners pursuant to this document.

Bylaws – The rules and regulations of the subdivision as prepared and approved by the Association and by the individual home owners residing within the subdivision. 

Common Elements – All real property contained within the subdivision not owned by any individual home owner. These include, but are not limited to, entryways, signs, monuments, roads, bridges, common landscaping, ingress and egress easements, designated water and drainage systems, and utilities easements. 

Community – The collective individual property owners who make up the subdivision. 

Complete Plans and Specifications – This terms means and refers to the following plans and specifications for any single Family Dwelling and all outbuildings and Improvements built on any Lot, which must be approved by the ARC prior to construction:

(a)    Plot plan showing location of all buildings and utilities.

(b)   Floor plans showing all rooms.

(c)    Elevations showing exterior materials and color schemes for all sides.

(d)   Grading plans showing all excavations and fills.

(e)    Landscape plans showing all landscaping.

(f)     Specifications of principle exterior materials and color schemes.

(g)    Utilities plans showing materials used for and configuration of the water and sewage systems.

(h)    Fencing plan showing location and materials.

Declarant – Sharpe Enterprises, LLC, a Nevada-based limited liability company.

Denude – The removing of any grass and/or vegetation below two inches above the surface of the ground.

Director – A member of the Board.

Dwelling – A rural residential building constructed on a  Lot designed and intended for use and occupancy as a residence by a single Family. 

Family – A group of natural persons related to each other by blood or legally related to each other by marriage or adoption; or a group of natural persons not all so related, but who maintain a common household in a Dwelling.

FHA – Federal Housing Administration.

FHLMC – Federal Home Loan Mortgage Corporation.

FNMA – Federal National Mortgage Association.

GNMA – Government National Mortgage Association

Improvements – Any structure of every type and kind, whether above or below the land surface, placed in an individual property, including but not limited to Dwellings and other buildings, walkways, sprinkler pipes, garages, swimming pools, spas, recreational facilities, carports, roads, driveways, parking areas, perimeter walls and fences of all types, lighting, stairs, decks, paths, landscaping, signs, and exterior equipment such as air conditioning and water equipment.

Lot – The real property of any individual residential portion of the subdivision to be separately owned by each property Owner, and as shown separately and definitively on a recorded plat of the subdivision.

Member – Any individual property Owner within the subdivision and thereby included within the Association.

Notice and Hearing – Written notice conveyed by the Association to an individual or group of property Owners for the intent of providing opportunity to be heard over an Association concern.

Officer – A duly elected or appointed officer of the Association.

Owner – Individual(s) including Declarant that hold a fee simple interest in any single property,  Lot , or Lots.

Permitted Animal – Defined as:

(a)    A dog which is not known for its aggressive or vicious behavior.

(b)   A domestic cat.

(c)    Small domesticated animals kept in cages or aquariums such as rabbits, rodents, lizards, snakes and fish.

(d)   A song bird or other caged bird, such as falcons and hawks used for hunting.

(e)    An equine animal, defined as a horse, mule, burro or llama.

Animals, including but not limited to cattle, swine, poultry, sheep, and goats are not permitted without specific approval of the Association. 

Private Streets – All roads, streets, and rights of way for the purpose of vehicle traffic within the subdivision.

Properties – The real property contained within the subdivision. 

Refuse – Any equipment, vehicles, appliances, machinery, structures, parts, tools and other similar items which are not capable of currently productive use for the purpose they were intended, without repair or restoration. Refuse shall also include garbage, waste, debris, ashes, trash and rubbish.

Resident – Any property Owner, tenant, or other person who is physically living within a Dwelling within the subdivision.

Setback – Refers to the minimum distance between the lawful location of a Residence and/or any outbuilding Improvements on a Lot from a given street or road, from a Lot line, or from an easement as provided by the plat or as otherwise required by applicable code.

Any term not separately defined within this document shall have the meaning ascribed thereto in applicable Boise County Planning and Zoning  documents .

Article 2 –  Lot Owners’ Property Rights

Section 2.1 Owners’ Easements of Enjoyment

Each individual property Owner shall have a nonexclusive right and easement of ingress and egress and of use and enjoyment in, to and over all Common Elements, which easement shall be appurtenant to and shall pass with title to the Owner’s Lot, subject to the following:

(a)    The right of the Association to establish uniform Rules and Regulations pertaining to the use of the Common Elements.

(b)   The right of the Association in accordance with this document and with a vote of at least two-thirds (2/3) of the Association Members (with one vote per property), and with a majority vote of the Association Board, to borrow money for the purpose of improving or adding to the Common Elements, to assess each individual property Owner a portion of such debt, and in aid thereof, and further subject to the Mortgagee protection provisions of this document, to mortgage, pledge, deed in trust, or hypothecate any or all of the Common Elements property as security for money borrowed or debts incurred, provided that the rights of such Mortgagee shall be subordinated to the rights of the individual property Owners.

(c)    In accordance with this document, the right of the Association to dedicate, release, alienate, transfer, or grant easements, licenses, permits and rights of way in all or any portion of the Common Elements to any public agency, authority, utility, or other person for such purposes and subject to such conditions as may be agreed to by a two-thirds (2/3) majority of the Association Members.

(d)   Subject to this document, the right of Declarant and its sales agents, representatives and prospective Lot site purchasers, to the nonexclusive use of the Common Elements without cost for access, ingress, egress, use and enjoyment, in order to show and dispose of the subdivision Properties therein and/or any other annexed developments until the last close of escrow for the marketing and/or sale of a Lot in the Properties; provided, however, that such activity shall not unreasonably interfere with the rights of enjoyment of the other Owners as provided in this document.

(e)    The right of the Association (only by majority action of the Board) to reconstruct, replace, refinish, or maintain any improvement contained within any of the Common Elements areas in accordance with the original design and construction of the subdivision. If recommended Improvements are beyond the original design, finish, or standard construction of the subdivision, the Association may only proceed with recommended Improvements at the seventy-five percent (75%) vote of the individual property Owners (one vote per property) along with written consent of a majority of the Association Board. 

(f)     The right of the Association, acting through the Board, to remove and/or replace damaged trees and vegetation to the Common Elements.

(g)    The right of the Association to reasonably restrict access and use of the Common Elements to all except the property Owners and Associate Members.

(h)    The right of the Association, acting through the Board, to reasonably suspend voting rights and to impose fines as special Assessments on those individual not in compliance with the CC&Rs and governing documents of the subdivision. 

Section 2.2 Easements for Parking

The Association, through the Board, is empowered to establish parking and no parking areas within the Common Elements, and to establish rules and regulations to govern such matters, and to enforce such rules and regulations through a reasonable system of fines in accordance with any local city or county ordinances, including the removal of vehicles at the expense of the Owner of the violating vehicle.

Section 2.3 Easement Right of Declarant for Marketing, Sales, and Construction Activities

An easement is reserved by and granted to Declarant, its successors and assigns, and their respective officers, managers, employees, agents, contractors, sales representatives, prospective purchasers of Lots, guests, and other invitees, for access, ingress, and egress over, in, upon, under, and across the Properties, including Common Elements, including but not limited to the right to store materials thereon and to make such other use thereof as may be reasonably necessary or incidental to Declarant’s use, development, advertising, marketing and/or sales related to the Properties, or any portions thereof, or any other project of Declarant; provided, however, that no such rights or easements shall be exercised by Declarant in such a manner as to interfere unreasonably with the occupancy, use, enjoyment, or access by any property Owner, his or her Family guests, or invitees, to or of that Owners’ Lot, or the Common Elements. This easement is to remain in effect until the last Lot for sale within the subdivision closes escrow.

Section 2.4 Easements for Public Service Use

Declarant reserves and covenants for itself and all future Owners within the Properties, easements for (a) placement of any utilities (e.g., fire hydrants, sheds for sand and salt, utility poles, etc.) structures within the Common Elements, and (b) ingress, egress, access, and placement of any structures related to county, state, and federal public services, including but not limited to, postal, law enforcement, and fire protection services and their respective employees and agents. 

Section 2.5 Easements for Water, Sewage, Utility, and Irrigation

The Declarant reserves and covenants for itself and all future Owners within the Properties, easements for the purposes of public and private utilities, power, telephone, cable TV, water, and gas lines and appurtenances; including the right of egress and ingress along and across all Common Elements and individual Properties as is reasonably and in a least obtrusive manner to be navigated and installed. Declarant further reserves and covenants for itself and the Association, and their respective agents, employees and contractors, easements over all Common Elements and all Lots, for the control, installation, maintenance, repair and replacement of any and all utilities lines and structures necessary for ongoing utility provision to the property Owners. In the event of damage caused by any activity described within this section, the Owner of any property shall pursue any resultant claim against the offending utility, and not against Declarant or the Association.

Section 2.6 Owners’ Right of Ingress and Egress

Each individual property Owner shall have an unrestricted right of ingress and egress to his/her Lot reasonably over and across all Common Elements, and such rights shall pass with any transfer of title to the Lot.

Section 2.7 Easement Data

The recording data for all easements and licenses reserved pursuant to the terms of this document are the same as the recording data for this document, this plat, and this subdivision with appropriate governmental and regulatory agencies.

Section 2.8 No Transfer of Interest

No individual property or Lot Owner may sell, lease, encumber, or otherwise convey his or her interest in any of the Common Elements, except in conjunction with conveyance of his/her Lot and subdivision property to another Owner.

Section 2.9 Easement on Forest Service Land

Each individual property or Lot Owner and each Associate Member of the Association shall have an unrestricted right of ingress and egress across the section of Forest Service Land described in Exhibit D. Notwithstanding the provisions in this document allowing changes, the easement granted to Associate Members on Forest Service Land described in this document may not be terminated. 

Article 3 – Elk Run Homeowners Association

Organization

Section 3.1 Organization of Homeowners’ Association

The Association has the right to incorporate under the name of Elk Run Homeowners Association, Inc., or similar name, as a nonprofit corporation under the governing laws and statutes of the State of Idaho. This Association is mandated for the life of the subdivision. If dissolved, all assets of the Association will be distributed equally among the existing property Owners, after all debts and Assessments have been satisfied. 

Section 3.2 Articles and Bylaws

This document also constitutes the Bylaws of the Association. The Association with a vote of at least two-thirds (2/3) of the Association Members, and with a majority vote of the Association Board, may add, subtract, or alter this existing document.

(a)    The Association Board shall consist of a minimum of three (3) Directors, each of which shall be an Officer. With a vote of at least two-thirds (2/3) of the Association Members, and with a majority vote of the Association Board, additional Directors may be added, but only to total an odd number of Directors, and not to exceed a total of seven (7) Directors.

(b)   Association Officers shall be appointed by the Association Board and shall consist of a President, one or more Vice Presidents, and a Secretary/Treasurer. With a majority vote of the Association Board, additional Association Officers may be added, but only to total an odd number of Officers, and not to exceed a total of seven (7) Officers.

(c)    Association Officers must serve a minimum three (3) year period prior to coming up for re-election. In the event of circumstances preventing the conclusion of an Officer’s three year term, another property or Lot Owner shall be appointed by the Association Board to serve out that Officers’ term.

(d)   The Association Board is pledged to act in the best interests of the subdivision and each individual property and Lot Owner, however, individual Lot Owner interests are not to supersede the best interests of the subdivision as a whole.

(e)    The Association Board and Officers are fiduciaries, and are required to exercise the ordinary and reasonable care of Officers of a corporation, subject to general business and ethical judgment rule. 

(f)     Subject to the rights of Declarant as set forth in Section 3.3, below, by a three-fourths (3/4) majority, Lot Owners may vote to remove a Director or Association Officer or Officers from office. In such case, another open election must occur immediately to elect a replacement Director (in the case of the removal of a Director). In the case of the removal of an Officer, the Association Board shall appoint a replacement. Reasons for recommending removal must be introduced in writing to the Association and publicly distributed to all property or Lot Owners including those Owners making recommendation. Removal and election must proceed within thirty (30) days of a call for removal.

(g)    The Association shall indemnify any Director, Officer or Declarant from all liability resulting from all legal claims, lawsuits, or actions taken against them or Declarant, until such time as those accused are found to have acted with willful or wanton misfeasance or with gross negligence. If such is found, then the Association may act to recover all damages from the Director or Officer so found guilty, including any legal fees incurred during the process.

(h)    No Director or Association Officer may be found personally liable to the victims of crimes occurring within the subdivision, nor is the Association liable for such crimes. 

(i)      Any Association Director or Officer may delegate their vote on a particular matter to another Association Director or Officer by proxy

(j)     Voting action by the Association Board  may only take place if all Directors/Association Officers are present or have submitted their votes on a particular matter by proxy.

(k)   All Directors and Association Officers must stipulate in writing that they have (a) read and are familiar with this and all governing documents related to the subdivision organization and operation, and (b) agree to hold to and implement these documents to the best of their ability and in accordance with the information contained therein.

Section 3.3 Declarant’s Control of, and Term on, the Board

During initial organization of the subdivision and addition of new property and Lot Owners, Declarant may at any time initiate the Association and appoint a Board of Directors.  Declarant shall have the sole power to appoint and remove the Directors until one-hundred percent (100%) of the Lots are sold to future Lot Owners. At such time, Declarant’s appointees will resign as Directors and turn all rights and responsibilities thereof over to the Association.

Article 3 – Elk Run Homeowners’ Association

Rights

Section 3.4 Duties, Powers, and Rights

Duties, powers, and rights of the Homeowners’ Association are (a) those set forth in this Document, and (b) those voted into this Document by the Association and its Members and individual property Owners. The Homeowners’ Association primary duty is to operate in accordance with the interests of peace, health, comfort, safety, fiduciary responsibility, and general welfare of its Members and individual property Owners. Further, the Association shall make available upon request by any individual property Owner all records of Association activity, as well as ensure availability of this document to any prospective property Owner.

Section 3.5 Owners’ Voting Rights

The Association shall have two classes of voting membership.

            CLASS A.  Class A member(s) shall be all Lot Owners, with the exception of the Declarant, and shall be entitled to one vote for each Lot owned. When more than one person holds an interest in any one Lot , all such persons shall be members. The vote for such Lot shall be exercised as they determine, but in no event shall more than one vote be cast with respect to any Lot . Fractional votes shall not be allowed. The vote applicable to any said Lot being sold under contract of purchase shall be exercised by the contract seller, unless the contract expressly provides otherwise.

            CLASS B.  Class B member(s) shall be the Declarant and shall be entitled to five (5) votes for each Lot owned. The Class B membership shall be converted to Class A membership when one-hundred percent (100%) of all Lots are sold to individual homeowners; provided however, that in the event of a sale of more than one Lot to another developer, then the Class B membership, together with all rights and privileges thereof, shall be transferred to such developer. 

During any time that an individual property or Lot Owner or group thereof is in arrears relative to any Association dues, Assessments, or levies, that individual or group will become ineligible to vote on Association matters, and will be considered a Member not in good standing. As a function of bringing such arrears current with proof of having been paid in full, that individual or group may immediately return to an Owner in good standing with return of all voting privileges. The right to vote may not be severed or separated from any Lot , with voting rights immediately and automatically conveyed to the new Owner of the property or Lot . Voting rights may not be transferred to another property or Lot Owner acting as a proxy for the first Owner.

Section 3.6 – Voting and Quorum 

Subject to the rights of the Declarant set forth in Section 3.3, above, on all Association Director and Officer removal voting matters, a vote of at least three-fourths (3/4) of the Association Members, must vote in the affirmative for such an action to pass. On all other voting matters, the specified majority or percentage of approval must come from a quorum of the membership in attendance at a particular Association meeting where a vote is taking place. A quorum of Members is defined as equal to or greater than twenty-five percent (25%) of the total Membership.

Article 3 – Elk Run Homeowners’ Association

Functions

Section 3.7 Membership

Each Owner, upon purchasing a Lot, shall automatically become a Member of the Association and shall remain a Member until such time as his or her ownership of the Lot ceases, at which time his or her membership in the Association shall automatically cease and pass on to the next Owner of that Lot. Each Associate Member shall automatically be an Associate Member due to his or her recorded ownership of a property defined in the definitions section of these CC&Rs. An Associate Member shall remain an Associate Member until such time as his or her ownership of such property ceases, at which time his or her membership in the Association shall automatically cease and pass to the next property owner. Memberships shall not be assignable, but will transfer with legal title to the property and/or Lot , with ownership the sole governing principle to membership status. Membership shall not be transferred, pledged, or alienated in any way, except upon the sale or encumbrance of such Owner’s Lot , and then only to the purchaser or Mortgagee of that Lot. 

Section 3.8 Elections

All elections of Directors must be preceded by the delivery of a written ballot to all Members. Such ballot must be delivered thirty (30) days prior to the election date. All elections must be conducted at a meeting of the Association membership, however, Members may submit their vote by mail (electronic or otherwise) to a delegated Association Officer. All ballots submitted must be counted by a designated property or Member that is not a Director or Officer nor related by blood or marriage to a Director or Officer. All elections must be conducted by written ballot, not public voting, and kept as a record of such vote on file by the Association.

Section 3.9 Meetings

(a)    Association meetings must be held at least once every ninety (90) days. Each meeting must be announced to all of the Members by regular mail at least thirty (30) days in advance. A written notification, preferably in the form of an Association Newsletter, must be made available to each Member prior to such meeting. 

(b)   Written notification must include the day, date, time, and physical place of the meeting. An agenda of all discussion items must also be included. Any items that any Member wishes included within a meeting agenda must be provided to an Association Officer in writing prior to the meeting taking place to be included on the agenda.

(c)    Meetings are limited to two hours for general Member discussion and Association news, and any voting matters, and an additional hour for Board of Director business, including but not limited to economic, fiduciary, community maintenance and Improvements, and CC&R violations. In the interests of sensitivity to hearing all Members’ concerns, each individual Member is limited to five minutes of speaking time per issue.

(d)   Emergency meetings may be called in the event of a Community need that is pressing in relation to the health, welfare, and/or safety or quality of life of the community. In the case of an emergency meeting, all reasonable efforts must be made to ensure that all Members have opportunity for voting input on an Association decision that may impact on some or all community Members. 

(e)     All meetings must have a recorder present, and all Members have the right to request written copies of all minutes from any meeting conducted. Such copies must be made available to the requestor within ten (10) business days with the expense of preparing such borne by the requestor. In the event of an emergency meeting, minutes of such meeting must be delivered by mail to each and every Member with cost borne by the Association. 

(f)     At each meeting the Association Officers must present a current reconciliation of all Association operating and reserve funds, an accounting of all current and projected Association expenses for following quarters and years where appropriate, and the current status of any civil action or claim submitted to arbitration or mediation in which the Association is a party.

(g)    Additionally, each meeting agenda must include a list of topics to be discussed, whether brought up by the Association or by individual property or Lot Owners, any proposed amendments to any subdivision governing documents, any proposed fees or Assessments to be imposed or increased by the Association, any budgetary changes, any proposal to remove an Association Officer, and any other voting matters open for consideration. Again, voting matters must be presented in writing to all Members  thirty (30) days prior to a scheduled meeting.

(h)    The Association Officers by majority vote, and including a two-thirds (2/3) majority of Members present may take voting action immediately on any emergency item as previously defined. 

(i)      In the event of CC&R violations, and/or discussion of any fines to be levied by the Association toward an individual Member, that Owner has the right to (a) written warning of the violation thirty (30) days prior to any Association action, (b) appear in Board of Director session of an Association meeting to be heard with respect to the violation, and (c) receive verbal and written notification of the Association’s disposition relative to rectifying the violating matter. All Members are bound to the  majority decision of the Association Board with respect to all violation matters.

Section 3.10 Powers and Duties

The Association shall have all the powers of a State of Idaho nonprofit corporation, subject to the limitations of such authorities of action as set forth by this document. The Association shall have the power to perform any and all lawful acts that may be necessary or proper for, or incidental to, the exercise of any of the express powers of the Association. 

Each Owner covenants with the Association and Declarant that by accepting a deed from the Declarant, or by closing escrow on any property within the subdivision, and whether or not it is expressly stated in said deed, each Owner agrees to abide by the provisions of this document, the Association Rules, and agrees to pay to the Association all regular Assessments, special Assessments, limited Assessments and surcharges which are property approved and imposed upon the Owner’s Lot or Lots. 

The Association’s obligations to maintain the Common Elements shall commence on the date Annual Assessments commence on Lots. Until commencement of annual Assessments, the Common Elements shall be maintained by Declarant, at Declarant’s expense. Powers and duties include, but are not limited to:

(a)    The power and duty to levy Assessments against Members, and to enforce payment of such Assessments in accordance with the provisions of this document. Upon initial organization and meeting of the Association, initial quarterly Assessments will be determined with notification to all Members of their obligations. Regular Assessments will be delivered by regular mail by the Association with a specified amount and due date. Regular Assessments must be based on a written Budget forecast prepared by the Association Board.

(b)   The power and duty to repair, maintain, plant, and remove all structures, trees, and plant growth within all Common Elements, including main subdivision entryway signs and structures and all areas abutting all subdivision roadways; to pay for ongoing subdivision road maintenance, repair, resurfacing, plowing and general upkeep; and to pay for all utilities costs necessary to those Common Elements.

(c)    The power and duty to repair and/or remove any and all graffiti and damage to the subdivision to ensure it’s ongoing aesthetic quality.

(d)   The power and duty to pay all taxes and Assessments levied upon the Common Elements and all taxes and Assessments payable by the Association.

(e)    The power and duty to obtain, for the benefit of the Common Elements, any necessary commonly metered water, gas and electric services (or other similar services) and/or Refuse collection, and the power but not the duty to provide for all cable or master television service, if any, for all or portions of the Properties.

(f)     The power, but not the duty, to grant and convey to any person easements, licenses and rights-of-way in, on, over, or under the Common Elements, and only with seventy-five percent (75%) majority of the voting Member population, fee title to parcels or strips of land which comprise a portion of the Common Elements, for the purpose of constructing, erecting, operating, or maintaining thereon, therein and there under; roads, streets, walks, driveways, and slope areas; overhead or underground lines, cables, wires, conduits, or other devices for the transmission of electricity for lighting, heating, power, television, telephone and other similar purposes; sewers, storm and water drains and pipes, water systems, water, heating and gas lines or pipes; and any similar public or quasi-public Improvements or facilities.

(g)    The power, but not the duty, to employ or contract with a professional manager to perform all or any part of the duties and responsibilities of the Association, and the power, but not the duty, to delegate such duties to committees consisting of Members. Any such agreements to employ or delegate by committee may be rescinded by thirty (30) days notice in writing to the relevant party.

(h)    The power, but not the duty, after sending written notice and providing opportunity for a hearing in front of the Association Officers, (except in the event of emergency which poses an imminent threat to health or substantial damage to property, in which event, notice and hearing shall not be required), to enter upon any area of a Lot, without being liable to any Owner, except for damage caused by the Association entering or acting in bad faith, for the purpose of enforcing by peaceful means the provisions of this document, or for the purpose of maintaining or repairing any such area if for any reason whatsoever the Owner thereof fails to maintain and repair such area as required by this document. All costs of any such maintenance and repair as described in the preceding sentence (including all amounts due for such work, and the costs and expenses of collection) shall be assessed against such Owner as a special assessment, and, if not paid timely and when due, shall constitute an unpaid or delinquent assessment. Unless there exists an emergency, there shall be no entry into a Dwelling without the prior consent of the Owner thereof. Any damage caused by an entry upon any Lot shall be repaired by the entering party. The Association has the power and duty to enforce by all legal means all portions of this document and to compensation by prevailing in a court of law for any and all expenses in carrying out such duty. 

(i)      The power, but not the duty, to employ any and all legal, accounting, insurance, and other services in connection with the Association’s duties as defined in this document, and as reasonably necessary to the performance of Association activities. Additionally, the power and the duty to carry an Association liability insurance policy to protect the Association from any and all action against it. 

(j)     The power, but not the duty, and by a vote of at least two-thirds (2/3) of the Association Members, and with a majority vote of the Association Board, to conduct major Improvements to all Common Elements, or to demolish existing and outdated Common Element structures. 

(k)   The power, but not duty, to enter into contracts with relevant professionals in the carrying out of such tasks and activities, including those Members who may possess such relevant skills as necessary to Association activities.

(l)      The power and the duty to enforce use restrictions pertaining to all Properties, Lots, and Common Elements.

(m)  The power and the duty to obtain all licenses and permits necessary in carrying out Association activities.

(n)    The power and the duty to design and implement any and all regulations in ensuring the health, safety, and welfare of the subdivision community. Rules and regulations must be reasonably related to the purpose for which it was adopted, sufficiently explicit in their prohibition, direction, or limitation, directed to all Members in writing within thirty (30) days of adoption; be adopted by a two-thirds (2/3) majority of Members present and voting at a designated Association meeting, adopted without intent to evade or circumvent any existing obligation by the Association; and uniformly enforced with all Members. 

(o)   The duty to provide for the plowing, sanding and removal of snow from the roadways throughout the subdivision including the section of Shaw Gulch Road which is included in the Forest Service easement described in Exhibit D.

(p)   The duty to acquire, operate, improve, maintain, repair and replace the public water system or systems in the subdivision, if any, including sources of supply.

(q)   The duty to operate, maintain, repair and replace a water pump truck and buried water supply tank, standpipes, or other form of fire protection for emergency fire fighting purposes, as necessary, and as required by the local county fire district encompassing the subdivision. Each Owner by function of Lot purchase, agrees to the establishment of such fire provisions, and to the Assessments levied by the Association Board to cover all costs of such fire provisions.

Section 3.11 Proceedings

The Association Board shall have the power and the duty to reasonably defend the Association in any pending or potential lawsuit, arbitration, mediation or governmental proceeding. In relation, the Association Board has the power and the duty to enforce the payment of an assessment or an assessment lien or other lien against an individual Member or Members, or otherwise enforce individual Member(s) compliance with this document and the governing CC&Rs. To this end:

(a)    The Association Board shall first endeavor to resolve any Member(s) controversies by good faith negotiations with the adverse party or parties. In the event that good faith negotiations fail, the Association Board shall then endeavor to resolve the controversy as follows:. 

(1)   The Association Board shall investigate the legal merit, feasibility and expense versus compensation damages of third party mediation and/or legal prosecution of  the adverse party. The Association Board is authorized to spend Association revenues from the capital account to obtain legal and/or expert opinion and activity on its behalf in the matter. 

(2)   Upon receipt and review of legal and/or expert opinion, the Association Board upon majority vote may act to proceed with the matter. 

(3)   Upon proceeding, the Association Board has the power, but not the duty, to recommend a special assessment to the Members to cover all costs of litigation.

(4)   Upon proceeding, the Association Board has the duty to provide written statements of prosecuting the adverse party to all Members, including a running accounting statement of all expenses incurred.

(5)   The Association Board has the power and the duty to determine by majority vote whether to accept or reject all settlement offers from the adverse party during prosecution of the matter by majority vote. Additionally, the Association Board has the power and the duty to act legally in the best interests of the Association membership and subdivision community, including placing liens on individual Lots and acting within the foreclosure laws of the State of Idaho to attempt appropriate compensation.

(6)   In no event shall the Association Board use any reserve funds, those funds set aside for capital Improvements to the subdivision to support prosecuting an adverse party.

(7)   In the event that an Association Director or Officer violates any of the provisions as set forth in this Section 3.11, that Director or Officer shall be held liable for all monies spent outside of procedural authorization as defined, and shall be removed immediately from Board office. 

Section 3.12 Additional Express Limitations on Powers of the Association Board

The Association Board shall not take any of the following actions except with the prior vote or written consent of  a two-thirds (2/3) majority of the voting Members present at an Association meeting, and assuming that a quorum is present for voting purposes:

(a)    Incur aggregate expenditures for capital Improvements to the Common Elements in any fiscal year in excess of five (5) percent of the budgeted gross expenses of the Association for that fiscal year.

(b)   Enter into a contract with a third party wherein the third person will furnish goods or services for the Association for a term longer then one (1) year, except for public or private utility operations, insurance policy contracts, and/or ongoing maintenance contracts to the Common Elements.