BLR Development, Inc. Attn: David Tolman MASTER DECLARATION OF COVENANTS, CONDITIONS, EASEMENTS AND PROTECTIVE COVENANTS FOR ACLAIME AT INDEPENDENCE Bluffdale, Salt Lake County, Utah
MASTER DECLARATION OF COVENANTS, CONDITIONS, EASEMENTS AND PROTECTIVE COVENANTS FOR ACLAIME AT INDEPENDENCE THIS MASTER DECLARATION OF COVENANTS, CONDITIONS, EASEMENTS AND PROTECTIVE COVENANTS FOR ACLAIME AT INDEPENDENCE (this Master Declaration ) is made as of this day of, 2014, by BLR Development, Inc., a Utah corporation, (collectively, Declarant ). R E C I T A L S: A. Declarant holds legal title to certain real property located in the County of Salt Lake, State of Utah, which property is described in Exhibit A, attached hereto and incorporated herein (the Community ). The Community is part of a larger development commonly known as Aclaime at Independence. The Community is composed of several large tracts of land, some of which are contiguous to each other and others are detached. Declarant intends to subdivide the large tracts of land into smaller Parcels, which will then be further subdivided into Lots and developed by affiliated Builders or Developers. B. To establish efficient management and to preserve the value and appearance of the Community, the Declarant desires to create a nonprofit corporation that would be assigned the powers and delegated the duties of (i) managing certain aspects of the Community, (ii) maintaining and administering the Community Area, (iii) administering, collecting and disbursing funds pursuant to the provisions regarding assessments and charges hereinafter created and referenced, and (iv) performing such other acts that generally benefit the Community and the Owners. Aclaime at Independence Master Owners Association, a Utah nonprofit corporation, has or will be incorporated under the laws of the State of Utah for the purpose of exercising the powers and functions aforesaid. C. Declarant desires to establish for its own benefit and for the mutual benefit of all future Owners, Mortgagees, Residents, occupants or other holders of an interest in the Community, or any part thereof, certain easements and rights and certain mutually beneficial covenants, restrictions and obligations with respect to the proper development, use and maintenance of the various parcels within the Community. D. Declarant desires and intends that the Owners, Mortgagees, Lessees, Occupants, Residents and other persons hereafter acquiring any interest in or otherwise utilizing property within the Community, shall at all times enjoy the benefits of, and shall hold their interest subject to the rights, easements, privileges, covenants and restrictions hereinafter set forth, all of which are declared to be in furtherance of a plan to promote and protect the aesthetic and cooperative aspects of the Community and are established for the purpose of enhancing and perfecting the value, desirability and attractiveness of the Community.
E. By this Master Declaration, Declarant intends to establish a common scheme and plan for the possession, use, enjoyment, repair, maintenance, restoration and improvement of the Community and the interests therein conveyed and to establish thereon a planned community. F. In order to cause this Master Declaration to run with the land comprising the Community and to be binding upon the Community and the Owners thereof from and after the date of this Master Declaration is Recorded, Declarant hereby makes all conveyances within the Community, whether or not so provided in the conveying instruments, subject to the Covenants herein set forth; and by accepting deeds, leases, easements or other grants or conveyances to any portion of the Community, the Owners and other transferees for themselves and their heirs, executors, administrators, trustees, personal representatives, successors and assigns, agree that they shall be personally bound by all of the Covenants (including but not limited to the obligation to pay Assessments) hereinafter set forth except to the extent such persons are specifically excepted herefrom. G. The Project created by this Master Declaration is not a cooperative. H. This Project is subject to certain restrictive covenants in favor of Declarant, and this Master Declaration is subject and subordinate to such restrictive covenants. NOW, THEREFORE, Declarant does hereby declare and establish the following covenants, conditions, easements, and protective covenants: ARTICLE I Definitions 1.1 Act means the Community Association Act (U.C.A. Section 57-8a-101, et seq.), as amended from time to time. 1.2 Additional Land means the real property situated in the City of Bluffdale, Salt Lake County, Utah and more particularly described in Exhibit B, attached hereto and incorporated herein. The description of the Additional Land is set forth in this Master Declaration solely for purposes of identification. This Master Declaration is not intended as and should not be deemed to constitute any lien, encumbrance, restriction, or limitation upon any portion of the Additional Land unless and until such portion is added to the Community in accordance with the terms and conditions of this Master Declaration. 1.3 Aclaime at Independence Design Review Committee or AIDRC means the design review committee established by the Master Association. 1.4 Apartment or Apartments shall mean Dwelling Units within a permanent Improvement consisting of four (4) or more commercially integrated Dwelling Units under single ownership upon one or more contiguous Parcels, each of which is designed and utilized, otherwise than as a hotel or on some other transient basis, for rental or leased for Residential purposes to non-owners. -2-
1.5 Apartment Development and/or Apartment Development Use" shall mean a Parcel or portion thereof which is dedicated for such purpose in a Neighborhood Declaration, Supplemental Declaration or in the Master Land Use Plan (where the same may be denoted as "Multi-Family"), and is comprised of Apartments and surrounding areas which are intended, as shown by the site plan therefor approved by the Municipal Authority and the DRC or otherwise, as one integrated apartment operation under the same ownership. 1.6 Area of Common Responsibility means the Community Area, together with those areas, if any, which by the terms of this Master Declaration, Master Plan, a development agreement, plat designation or other agreement with a Municipal Authority become the responsibility of the Master Association, such as any parks, trials, park strips, landscaped areas, etc. and/or any public rights-of-way within or adjacent to Community. 1.7 Articles of Incorporation or Articles mean the Articles of Incorporation of Aclaime at Independence Owners Association, Inc., a Utah nonprofit corporation, as filed with the Secretary of State of the State of Utah. 1.8 Assessable Property shall mean any Parcel, Lot, Residence, or Unit, except such part or parts thereof as may from time to time constitute Exempt Property. 1.9 Assessment means a charge imposed or levied by the Association on or against Assessable Property pursuant to the terms of this Master Declaration or any other Governing Document, and includes a Base Assessment, a Parcel Assessment and a Special Assessment. 1.10 Attached Dwelling Unit means a Dwelling Unit that shares a party wall, ceiling or floor with another Dwelling Unit, such as a townhome, but excluding any Condominium Unit. 1.11 Attached Dwelling Unit Development means development comprising Attached Dwelling Units in accordance with applicable laws. 1.12 Master Association means Aclaime at Independence Master Owners Association, Inc., a Utah nonprofit corporation, its successors or assigns. 1.13 Base Assessment means the assessments levied against all Assessable Property in the Community to fund Community Expenses. 1.14 Board means the Board of Directors of the Master Association. 1.15 Builder shall mean a Person who acquires a Parcel or a group of five or more Lots in the Community for the purpose of improving and constructing Units or other Improvements thereon for resale to the general public or other development purposes; provided, however, that the term "Builder" shall not mean or refer to Declarant or its successors. 1.16 Bylaws mean and refer to the Bylaws of the Association, attached hereto as Exhibit B and incorporated herein by reference, as they may be amended from time to time. -3-
1.17 Church Use shall mean use of property within the Community by a church or religious organization for a permanent place of religious worship or church facility including a chapel used for religious services and which may be used for church cultural and recreational activities. No Unit may be utilized for Church Use. 1.18 Cluster Residential Development and/or Cluster Residential Use shall mean Lots in planned unit developments or subdivisions with Dwelling Units intended for Single Family occupancy and may include those types of residential housing arrangements known as townhomes or townhouses, clustered housing, duplexes, zero-lot line housing and similar arrangements, together with related areas intended for the use and enjoyment of the Owners and Residents of the Lots in the cluster development. 1.19 Community Area shall mean the following property: (a) all Master Association Land, if any; (b) all areas identified as open space on the Master Land Use Plan and subjected to this Master Declaration, including the Trail System and immediately adjacent landscaping and park strips, which may or may not be dedicated to the public or to a Municipal Authority, but only until such open space is conveyed or dedicated to a Municipal Authority; (c) all land within the Community that Declarant indicates on a Plat is to be used for landscaping, drainage, and/or flood control for the benefit of the Community and/or the general public and owned or maintained by the Master Association, but only until such land is so conveyed or dedicated to a Municipal Authority; (d) all land or right-of-way easements within the Community that are dedicated to the public or to a Municipal Authority, but which such Municipal Authority or other governmental agency requires the Master Association to maintain, if any; and (e) any personal property that the Association now or hereafter owns or otherwise holds for the common use and enjoyment of all Owners exclusively within the Community, which Community Area is so designated by Declarant, in Declarant s sole discretion. 1.20 Community Expenses mean and include the actual and estimated expenses incurred by the Master Association for the general benefit of all Owners within the Community, related to the performance of the obligations of the Master Association, including any reasonable reserve, all as may be found to be necessary and appropriate by the Board pursuant to this Master Declaration, the Bylaws, and the Articles of Incorporation of the Association, and may include, without limitation, when determined by the Board, taxes and assessments against Master Association Land and Improvements thereon, assessments by any Special Service District pertaining to the Master Association Land, maintaining and repairing Master Association Land and the Improvements thereon, general administrative and overhead costs, and expenses incurred in bringing or defending lawsuits and other litigation expenses. -4-
1.21 Community means Aclaime at Independence and the land subject to the terms and conditions of this Master Declaration. 1.22 Community-Wide Standards means those standards of aesthetics, environment, appearance, architectural design and style, maintenance, conduct and usage generally prevailing within the Community as set forth in this Master Declaration. 1.23 Condominium Development shall mean a condominium ownership regime established under the laws of the State of Utah including both Residential and Commercial Condominium Developments. 1.24 Condominium Unit shall mean a condominium unit (as defined under U.C.A. 57-8-1, et seq.) including its appurtenant interest in all condominium common areas, established under Utah law. Such term shall not include an Apartment in an Apartment Development or an Attached Dwelling Unit. 1.25 Declarant means collectively BLR Development, Inc. and its successors or assigns which take title to any portion of the Community for the purpose of development and/or sale and who are designated as Declarant hereunder in a recorded instrument executed by the immediately preceding Declarant. 1.26 Declarant Affiliate means a Person that is controlling, controlled by, or under common control with Declarant, including, without limitation, a subsidiary or an entity the principal of which is also a principal of Declarant. 1.27 Design Guidelines shall mean the Design Guidelines which are included within the Project Plan, as such Design Guidelines may from time to time be amended in accordance with the terms of the Development Agreement. A copy of the Design Guidelines, as amended from time to time, shall be on file at all times in the office of the Master Association. 1.28 Developer means any Person that acquires a Parcel with the intent to improve or subdivide the Parcel into Lots and resell or lease the Parcels or Lots to others. 1.29 Development Agreement shall collectively mean: (a) that certain Amended and Restated Development Agreement for Aclaime at Independence (Bland Property/Rockwell Neighborhood) dated, entered into between BLR Development, Inc. and Bluffdale City, as amended; and (b) any other development agreements that may be entered into at any time in the future between Declarant and Bluffdale City, and as may be amended or amended and restated from time to time in the future in accordance with the terms thereof. Any land conveyed, assigned, or transferred by Deed or other written instrument to any Municipal Authority under the Development Agreement shall be Exempt Property. In the event of any conflict between this Master Declaration and the Development Agreement (including without limitation the Project Plan thereto), the terms of the Development Agreement shall control. 1.30 Dwelling Unit shall mean any building or portion of a building situated upon a Lot or Parcel designed and intended for use and occupancy as a residence by a Single Family. A -5-
Dwelling Unit includes both Attached Dwelling Units and detached dwelling units. 1.31 Eligible Mortgagee shall mean and refer to a Mortgagee which has requested notice of certain matters from the Master Association in accordance with this Master Declaration. 1.32 Exempt Property shall mean the following parts of the Community: 1.32.1 All land and Improvements owned by or dedicated to and accepted by a Municipal Authority, or any political subdivision thereof, for as long as any such entity or political subdivision is the owner thereof or for so long as said dedication remains effective including all Municipal Authority Property and all property utilized for General Public Uses; 1.32.2 All Master Association Land, for as long as the Master Association is the owner thereof; 1.32.3 All land utilized for Church Use; 1.32.4 Each other property, including each Lot or Parcel, while owned by Declarant or a Declarant Affiliate, until the earliest to occur of (i) the acquisition of its record title by a Developer, Builder or other Person, other than Declarant or a Declarant Affiliate, (ii) the day after the Municipal Authority having jurisdiction thereover issues a certificate of occupancy for the first Dwelling Unit or building hereafter constructed thereon, or (iii) the 15th anniversary of the date on which the real property comprising such Exempt Property is subjected to this Master Declaration. Declarant or a Declarant-related developer entity may expressly waive its right to an exemption from Assessments as to some or all Exempt Properties of which it is then the Owner, by a Supplemental Declaration identifying such Exempt Properties and signed by it and all Mortgagees of such Exempt Properties. In such event, such exemption shall terminate as to each such identified Exempt Property when such Supplemental Declaration is Recorded. Any such waiver shall run with the title to each such Exempt Property and bind its subsequent Owners, including Declarant or any Declarant-related developer entity; and Commented [KM1]: To be reviewed 1.32.5 All Exempt Property described herein shall be exempt from Assessments and Membership in the Master Association (provided, however, the Declarant or a Declarantrelated entity shall remain a Member in the Master Association at all times as a Class B Member with voting rights, notwithstanding its temporary exemption status from required Assessment payments) and its associated privileges and responsibilities, but shall nevertheless be subject to all other provisions of this Master Declaration, including but not limited to, the use restrictions and architectural controls. Provided, however, at the sole and exclusive option of Declarant, property described in Section 1.30.1 shall be fully exempt from all of the terms and provisions of this Master Declaration. 1.33 FHA shall mean and refer to the Federal Housing Administration. 1.34 FHLMC shall mean the Federal Home Loan Mortgage Corporation. -6-
1.35 First Mortgage means any Mortgage which is not subject to any lien or encumbrance except liens for taxes or other liens which are given priority by statute. 1.36 First Mortgagee means any person named as a Mortgagee under a First Mortgage, or any successor to the interest of any such person under a First Mortgage. 1.37 FNMA shall mean and refer to Federal National Mortgage Association. 1.38 Exclusive Community Area means any Community Area located on a Parcel or group of Parcels within the Community that exclusively serves the Units located on such Parcel or group of Parcels within the Community, but does not serve all of the Units located within the Community, and that is designated as Exclusive Community Area by Declarant or the Master Association. 1.39 General Public Uses shall mean those types of uses designated by the Master Land Use Plan as General Public Uses, including, but not limited to, school sites and parks conveyed, assigned, or transferred by Deed or other written instrument to a Municipal Authority. 1.40 Governing Documents means all documents and applicable provisions thereof as set forth in this Master Declaration, any Supplemental Declaration, the Bylaws and Articles of Incorporation of the Master Association, the Plat, Rules and Regulations, Design Guidelines, all written decisions and resolutions of the AIDRC and Board, and any lawful amendments to any of the foregoing. 1.41 Improvements means any improvement now or hereafter constructed within the Community and includes anything that is a structure and appurtenances thereto of every type and kind, including but not limited to any (a) Unit, building, shed, guest house, casita, pergola, swimming pool, hot tub, screening wall, accessory building, fence, or wall; (b) any walkway, garage, road, driveway or parking area; (c) any mailbox, sign, covered patio, stairs, deck, fountain, artistic work, craft work, figurine, ornamentation or embellishment of any type or kind (whether or not affixed to a structure or permanently attached to a Unit); (d) any radio or television antenna or receiving dish; (e) any paving, exterior lights, curbing, trees, shrubs, hedges, grass, windbreak, or other landscaping improvements of every type and kind; (f) any excavation, fill, retaining wall or other thing or device which affects the natural flow of surface water or the flow of water in a natural or artificial stream, wash or drainage channel, and related fixtures and equipment; and (g) any other structure of any kind or nature. 1.42 Land Use Classification shall mean the classification to be established by the Declarant, which designates the type of Improvements which may be constructed on a Lot, Parcel or Master Association Land and the purposes for which such Improvements and surrounding land may be utilized. 1.43 Lease shall mean a written lease or sublease for the leasing or rental of a Unit, including an Apartment. 1.44 Lessee means the lessee or tenant under a lease, oral or written, of any Unit, -7-
including an assignee of the lessee s or tenant s interest under a lease. 1.45 Live/Work Unit(s) means Attached Dwelling Units where the portion of the first floor facing the street is a work space and the upper floors are residential. 1.46 Lot shall mean (a) any real property within the Community designated as a Lot on any Plat or any Parcel that is developed and improved by Units. 1.47 Manager shall mean such person or entity retained by the Board to perform certain functions of the Board pursuant to this Master Declaration or the Bylaws. The Manager for the Master Association shall carry out certain responsibilities of the Master Association as required herein and by the Development Agreement. 1.48 Master Association shall mean the Utah nonprofit corporation to be organized by Declarant to administer and enforce the Covenants and to exercise the rights, powers and duties set forth in this Master Declaration, its successors and assigns. Declarant hereby reserves the exclusive right to cause such Master Association to be incorporated and intends to name the Master Association the "ACLAIME AT INDEPENDENCE MASTER OWNERS ASSOCIATION, INC." 1.49 Master Association Land shall mean such part or parts of the Community, if any, together with any buildings, structures and Improvements thereon, and other real property which the Master Association now or hereafter owns in fee for as long as the Master Association is the owner of the fee. 1.50 Master Association Use shall mean those portions of the Community intended for the use and benefit of the Master Association. 1.51 Master Land Use Plan shall mean the Comprehensive Land Use Master Plan, which is included within the Project Plan, as such Comprehensive Land Use Master Plan may from time to time be amended in accordance with the terms of the Development Agreement. A copy of the Master Land Use Plan, as amended from time to time, shall be on file at all times in the office of the Master Association. 1.52 Member means a Person entitled to membership in the Master Association, as provided herein. 1.53 Mortgage means a mortgage, a deed of trust, a deed to secure debt, or any other form of security deed. 1.54 Mortgagee means a beneficiary or holder of a Mortgage. 1.55 Municipal Authority means any applicable governmental entity or municipality that has jurisdiction over all or some part of the Community including without limitation Bluffdale City, Utah and Salt Lake County, Utah. -8-
1.56 Municipal Authority Property shall mean all real property which is from time to time conveyed, assigned, dedicated or transferred by Deed or other written instrument to the applicable Municipal Authority, including but not limited to community parks, mini parks, portions or all of the Trail System, public streets including medians and enhanced parkways, retention basins, drainage facilities and open space areas. 1.57 Neighborhood shall mean two or more Lots or Parcels which share interests other than those common to all Lots or Parcels. By way of illustration and not limitation, a Single Family Residential Development, a Cluster Residential Development, or a Residential Condominium Development might each be designated as separate Neighborhoods, or a Neighborhood may be comprised of more than one housing or use type with other features in common. In addition, each Parcel intended for development shall constitute a Neighborhood, subject to division by Declarant into more than one Neighborhood upon development. Where the context permits or requires, the term "Neighborhood" shall also refer to the Sub-Association which shall be established to act on behalf of the Owners within the Neighborhood. Neighborhood boundaries may be established and modified as provided herein. Each Neighborhood shall be subject to a Neighborhood Declaration or a condominium declaration. 1.58 Neighborhood Declaration shall mean a declaration recorded against a Neighborhood containing restrictions on use and establishing a Land Use Classification for each Parcel covered by the Neighborhood Declaration as described herein. The Neighborhood Declaration shall identify the density allocated to the property it covers. It is contemplated that a Neighborhood Declaration will be, in contrast to a Supplemental Declaration, a more comprehensive and detailed document such as a condominium declaration or restrictive covenants which more specifically regulate a Neighborhood. In the event of any conflict between this Master Declaration and any Neighborhood Declaration, the terms of this Master Declaration shall control. 1.59 Occupant means any Person other than an Owner, who has actual use, possession or control of a Unit or any portion thereof, or any other Improvement located within the Community. 1.60 Owner shall mean and refer to one (1) or more Persons who hold the record title to any Unit within the Community, but excluding in all cases any party holding an interest merely as security for the performance of an obligation. If a Unit is subject to a written lease with a term in excess of one (1) year and the lease specifically so provides, then upon filing a copy of the lease with the Board the lessee (rather than the fee owner) will be considered the Owner for the purpose of exercising all privileges of membership in the Master Association. 1.61 Parcel means one or more parcels of land within the Community that is intended for future subdivision and/or development by a Developer or a Builder. A Parcel is anticipated to be a large tract of land that will be subdivided into Lots and then developed based upon the Land Use Classification. 1.62 Period of Administrative Control means a period of time commencing as of the date of this Master Declaration and expiring upon the first to occur of: (a) the date that is ninety -9-
(90) days after Declarant no longer owns any real property within the Community, including any Community Area, or (b) the date that is twenty-five (25) years after the date this Master Declaration is recorded in the official records of Salt Lake County, Utah, or (c) the day Declarant, after giving notice to the Owners, records an instrument voluntarily surrendering all rights to control activities of the Association. 1.63 Person means a natural person, a corporation, a partnership, a trustee, or any other legal entity. 1.64 Plat shall mean any subdivision plat or record of survey map affecting the Community filed in the office of the County Recorder of Salt Lake County, Utah, as such may be amended from time to time, including but not limited to any such Recorded plats or maps respecting all or any portion of the Additional Land. 1.65 Project means the development known as Aclaime at Independence, located in Bluffdale City, Salt Lake County, Utah. 1.66 Project Plan shall mean that certain Project Plan attached as Exhibit "B" to the Development Agreement, as such Project Plan may from time to time be amended in accordance with the terms of the Development Agreement. A copy of the Project Plan, as amended from time to time, shall be on file at all times in the office of the Master Association. 1.67 Public View means, as to each Unit, visibility of a location on the lot or exterior of the Unit from a street, common area, or Community Area. 1.68 Record, Recording, Recorded and Recordation means placing or having placed an instrument of public record in the official records of Salt Lake County, Utah. 1.69 Regulated Modification means (without implication that any particular matter is permitted or prohibited by this Master Declaration and without limitation as to Article XII of this Master Declaration as set forth below) the commencement, placement, construction, reconstruction or erection of, or modification, alteration, or addition to, any building, structure, improvement, thing or device, and any usage thereof, whether temporary or permanent, which may affect, modify or alter the aesthetics, environment, architectural scheme, appearance or standards, patterns of usage, or grades or topography generally prevailing within the Community as of the date of establishment of the Regulated Modification, excluding any such matters or activities conducted by Declarant or Association, but including by way of illustration and not of limitation: 1.69.1 any building, garage, porch, shed, bathhouse, swimming pool, hot tub, pool house, coop or cage, covered or uncovered patio, children s play fort or play set and any other recreational devices or equipment used outside of a Unit, fence, wall or other screening device, curbing, paving, wall, trees, shrubbery and any other landscaping, fountains, statuary, lighting fixtures, signs or signboard, or any temporary or permanent living quarters, and any other temporary or permanent modification or alteration; -10-
1.69.2 any other building, structure, improvement, thing or device, and any activities related thereto and any usage thereof, as specified from time to time by applicable Design Guidelines, whether temporary or permanent, which may affect, modify or alter the aesthetics, environment, architectural scheme, appearance or standards, patterns of usage, or grades or topography generally prevailing in the Community. 1.69.3 any modifications to the structural, mechanical or electrical elements, systems or components of a Unit. 1.70 Reinvestment Fee shall mean the charge which may be levied and assessed by the Association in the event of a transfer of a Lot, Parcel or Unit pursuant to this Master Declaration. The Reinvestment Fee assessed, if any, shall be in compliance with U.C.A. 57-1- 46, as may be amended or replaced. 1.71 Related Parties means and applies as follows: 1.71.1 Lessees or other Occupants of each Owner s Unit are Related Parties of that Owner, and with respect to each such Owner, tenant or other occupant, Related Parties include: (i) their respective family and other household members (including in particular but without limitation all children and other dependents), (ii) their respective guests, invitees, servants, agents, representatives and employees, and (iii) all other Persons over which each has a right of control or under the circumstances could exercise or obtain a right of control. 1.71.2 Related Parties of the Master Association, AIDRC and Declarant include their respective officers, directors, partners, co-venturers, committee members, servants, agents, representatives and employees regarding all acts or omissions related to any of the foregoing representative capacities. 1.72 Residence means any Dwelling Unit situated within the Community. 1.73 Residential or Residential Areas shall include Single Family Residential Developments, Cluster Residential Developments, and Residential Condominium Developments, and all common recreational areas and facilities associated with any of the foregoing. 1.74 Rules and Regulations shall mean the current applicable Rules and Regulations as same may be supplemented, amended, modified or repealed as provided in this Master Declaration. 1.75 Single Family shall mean a group of one or more persons, each related to the other by blood, marriage or legal adoption, or a group of persons not all so related, who maintain a common household in a Dwelling Unit. 1.76 Single Family Residential Development and/or Single family Residential Use shall mean Lots in a planned unit development or subdivision intended for Single Family occupancy in Dwelling Units, together with related areas intended for the use and enjoyment of the Owners and Residents of such Lots. -11-
1.77 Special Assessment shall mean and refer to assessments levied in accordance with this Master Declaration. 1.78 Special Service Districts means one or more special service districts, which may be or have been established to provide the Community with, among other things, waste water treatment and disposal services, fire protection service, road maintenance, emergency services, special lighting facilities for nonstandard street lights, and culinary water and facilities including pump stations. 1.79 Sub-Association shall mean any Utah nonprofit corporation or unincorporated association, or its successor in interest, the membership of which is composed of the Owners of a Parcel or Lots subject to one or more Neighborhood Declarations and/or Supplemental Declarations. Subject to Declarant approval, any Builder or Neighborhood may, but shall not be required to, Record a Neighborhood Declaration against a Neighborhood development or may organize such Sub-Association under the conditions set forth in this Master Declaration. 1.80 Supplemental Declaration shall mean an amendment or supplement to this Master Declaration executed by or consented to by Declarant which may, but need not, impose, expressly or by reference, additional restrictions and obligations on the land described therein, or may modify or delete any restriction or obligation of this Master Declaration as same applies to the land described therein. 1.81 Trail System shall mean the system of trails for the Community that is established from time to time by the Declarant and/or the Master Association and which may be identified on the Master Land Use Plan or on any Plat for any Parcel. The Trail System may be owned by the Master Association and/or conveyed, assigned, or transferred by Deed, plat dedication, or other written instrument to the appropriate Municipal Authority. 1.82 Use shall mean one or more specific types of property development and classification as set forth in this Master Declaration. 1.83 Unit means Dwelling Unit, a Condominium Unit, and any Apartments, and including the applicable Lot and any Improvements constructed or located thereon. A Unit shall exclude any Community Area or common area, but shall include any interest in the Community Area or common area. 1.84 U.C.A. shall mean Utah Code Annotated. 1.85 V.A. shall mean the Veterans Administration. 1.86 Visible Location means a location in the Community which is in Public View. ARTICLE II -12-
Master Declaration 2.1 Master Declaration. Declarant hereby declares that all of the real property described in Exhibit A shall be held, sold, and conveyed subject to the following easements, restrictions, covenants, and conditions, which are for the purpose of protecting the desirability of and which shall run with the real property subjected to this Master Declaration and which shall be binding on all parties having any right, title, or interest in the Community or any part thereof, their heirs, successors, successors-in-title, and assigns, and shall inure to the benefit of each Owner thereof. All of the property within the Community shall be held, sold and conveyed subject to this Master Declaration. By acceptance of a deed or by acquiring any interest in any of the property subject to this Master Declaration, each Person, for himself, herself or itself, and his, her or its heirs, personal representatives, successors, transferees and assigns, binds himself, herself or itself, and his, her or its heirs, personal representatives, successors, transferees and assigns, to all of the provisions, restrictions, covenants, conditions, rules and regulations now or hereafter imposed by this Master Declaration. In addition, each such Person by so doing acknowledges that this Master Declaration sets forth a general scheme for the development and use of the Community and evidences his, her or its agreement that all the restrictions, conditions, covenants, Rules and Regulations contained in this Master 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 Master Declaration shall be mutually beneficial, prohibitive and enforceable by the Master Association and all Owners. Nothing in this Master Declaration shall be construed to prevent the Declarant from modifying the Master Land Use Plan or any portions thereof as to which a Neighborhood Declaration and/or Supplemental Declaration has not been recorded, subject to compliance with the terms of the Development Agreement and Project Plan. This Master Declaration shall not be construed to prevent the Declarant from dedicating or conveying portions of the Community, including but not limited to streets or roadways, for uses other than as a Lot or Unit subject to the provisions of this Master Declaration. 2.2 Development of Community. Notwithstanding the foregoing, no provision of this Master Declaration shall be construed or enforced to prevent or limit the Grantor s right to complete development of the Community in accordance with the plan therefor as the same exists or may be modified from time to time by the Declarant nor prevent normal construction activities during the construction of Improvements within the Community. No development or construction activities shall be deemed to constitute a nuisance or violation of this Master Declaration by reason of noise, dust, presence of vehicles or construction machinery, erection of temporary structures, posting of signs or similar activities, provided that the same are actively, efficiently and expeditiously pursued to completion. In the event any dispute concerning the foregoing shall arise, a temporary waiver of the applicable provision(s) of this Master Declaration may be granted by the AIDRC, provided that such waiver shall be for a reasonable period of time. Any such waiver need not be recorded and shall not constitute an amendment of this Master Declaration. 2.3 Conflicts with Law. In the event of any conflicts between the provisions of this Master Declaration and the requirements of the applicable ordinances of any Municipal -13-
Authority, the more restrictive provisions shall control. 2.4 No Condominium. Declarant and each Owner hereby agree and understand that the Community is not, by execution and recording of this Master Declaration, being submitted to the provisions of the Condominium Ownership Act (U.C.A. 57-8-1, et seq.). This Master Declaration does not constitute a declaration as provided for in the Condominium Ownership Act. Notwithstanding the above, Parcels and portions of Parcels within the Community may be developed by Developers and Builders as Condominium Project, in which case the Developer or Builder shall comply with all provisions of the Condominium Ownership Act as it applies to such Parcel or portion thereof being developed. Other than described above, the Condominium Ownership Act shall not be applicable to the Community as a whole. 2.5 Development of Neighborhoods. Declarant intends to subdivide the Community into various Parcels and to sell the Parcels to Developers, Builders, or Persons. As a condition of development of any Parcel, the Developer and/or Builder shall record a Neighborhood Declaration covering the entire Parcel. The Neighborhood Declaration shall (a) specify the Land Use Classification and permitted uses of property described therein (in accordance with ARTICLE 4 hereof), (b) satisfy all requirements of applicable law, including, but not limited to the Act, (c) be subject and subordinate to this Master Declaration, and (d) be approved in writing by Declarant. This Master Declaration and all subsequent Neighborhood Declarations and Supplemental Declarations are declared and agreed to be in furtherance of a general plan for the subdivision, development, improvement and sale of the Community and are established for the purpose of enhancing and perfecting the value, desirability and attractiveness of Aclaime at Independence and every part thereof. 2.6 Readjustment of Parcel Boundaries. Declarant hereby reserves for itself and Declarant Affiliates, the right to effectuate minor realignment and adjustment of the boundary lines between Parcels that are owned by Declarant and Declarant Affiliates for purposes of proper configuration and final engineering of the Community; provided that any such realignment and adjustment does not affect any existing Residence or Improvement (other than landscaping) on the affected Parcel. The authority to realign and adjust such Parcel boundary lines shall be exclusively reserved to the Declarant and Declarant Affiliate, in their sole and reasonable discretion, subject to the other provisions of this Section 2.6. All Owners specifically acknowledge and agree that they shall cooperate with Declarant to effectuate such minor realignment and adjustment of the Parcel boundary lines as reasonably requested by the Declarant such as through signing an amended plat. Further, all Owners acknowledge and agree that no amendment to this Master Declaration or the Plat shall be required to effectuate any Parcel boundary line adjustments so long as such adjustments are made pursuant to U.C.A. 17-27-808(7), as amended, or any successor statute. More particularly, boundary line adjustments between adjacent Parcels may be executed upon the approval of the appropriate Municipal Authority and upon recordation of an appropriate deed if: (a) No new Residence or Improvement results from the Parcel boundary line adjustment and exchange of title; -14-
(b) The appropriate Municipal Authority and adjoining property Owners consent to the boundary line adjustment (such Owners consent to be granted as described above); (c) The adjustment does not result in violation of applicable Municipal Authority zoning requirements; and (d) The appropriate Municipal Authority Records a notice of approval in accordance with U.C.A. 17-27-808(7)(c), as amended. 2.7 Development Plan. Notwithstanding any other provision of this Master Declaration to the contrary, and subject to the appropriate Municipal Authority, Declarant, without obtaining the consent of any other Owner or Person, shall have the right to make changes or modifications to its plan of development with respect to any Parcels owned by the Declarant in any way which the Declarant desires including, but not limited to, changing all or any portion of the Parcels owned by the Declarant or changing the nature or extent of the uses to which such Parcels may be devoted. 2.8 Municipal Authority Property. From time to time, the Declarant may, in its sole and exclusive discretion and without the vote of the Members, convey, assign, or transfer by Deed, plat dedication, or other written instrument certain Community Area to the applicable Municipal Authority. Once any such Community Areas are conveyed, assigned or transferred to a Municipal Authority, they shall be Exempt Property and shall constitute Municipal Authority Property. It is contemplated that from time to time certain open space areas, the Trail System and other real property and facilities, may be conveyed, assigned, or transferred by Deed or other written instrument to a Municipal Authority, which conveyances are authorized pursuant to this Master Declaration. ARTICLE III Property Rights 3.1 Community Area. Every Owner shall have a right and nonexclusive easement of use, access and enjoyment in and to the Community Area, subject to: (a) this Master Declaration as it may be amended from time to time, any applicable Supplemental Declaration, and any restrictions or limitations contained in any deed conveying the Community Area to the Master Association; (b) the right of the Board to limit the number of guests who may use the Community Area, and to adopt other rules regulating the use and enjoyment of the Community Area; (c) the right of the Master Association, acting through the Board, to dedicate or transfer all or any part of the Community Area to the extent expressly authorized herein; -15-
(d) the right of the Master Association, acting through the Board, to mortgage, pledge or hypothecate any or all of its real or personal property as security for money borrowed or debts incurred; and (e) the right of Declarant or the Master Association to grant to certain Owners the exclusive use of portions of the Community Area, which areas are designated Exclusive Community Area, as more particularly described in Section 3.2 below. Any Owner may delegate his or her right of use and enjoyment to his or her Related Parties, subject to reasonable regulation by the Board and in accordance with procedures it may adopt. An Owner who leases his or her Unit shall be deemed to have delegated all such rights to the Unit s lessee. 3.2 Exclusive Community Area. Declarant, in Declarant s sole discretion, may designate portions of the Community Area as Exclusive Community Area, which is reserved for the exclusive use of Owners and their Related Parties within particular Parcels within the Community. Any Exclusive Community Area, designated to a particular Parcel within the Community will be maintained by the Neighborhood Association(s) for that Parcel, and the Neighborhood Association shall indemnify the Master Association for, from, and against any and all claims arising from the use of the Exclusive Community Area located therein. The applicable Neighborhood Association shall be responsible for all costs associated with operation, maintenance, repair, replacement and insurance of Exclusive Community Area. If the Master Association incurs any costs associated with the Exclusive Community Area, the Master Association may assess the costs as a Parcel Assessment, as defined herein, against the Owners of Units located on such Parcel for whose benefit the Exclusive Community Area are designated. By way of illustration and not limitation, Exclusive Community Area may include recreational facilities intended for the exclusive use of Owners of Units located on a particular Parcel and supported exclusively by Parcel Assessments against such Parcel(s) within the Community. Declarant may designate any Exclusive Community Area as such, and assign the exclusive use thereof, by any of (a) the deed conveying the Community Area to the Master Association, (b) the Supplemental Declaration covering the particular Parcel benefited by the Exclusive Community Area, or (c) the recorded Plat covering the particular Parcel(s). Further, Declarant, during the Period of Administrative Control, or thereafter, the Master Association, may convert one or more areas of Community Area to Exclusive Community Area for one or more particular Parcels within the Community, or may convert Exclusive Community Area to Community Area. Any such action by the Master Association will require the vote of both (i) a majority of the total Master Association votes, and (ii) a majority of the votes within the Parcel(s) to which the Exclusive Community Area either is to be assigned or from which Exclusive Community Area is to be converted to Community Area. Notwithstanding the above, any Supplemental Declaration may establish Exclusive Community Area. ARTICLE IV Membership and Voting Rights -16-
4.1 Membership. Every Owner shall be deemed to have a membership in the Master Association. No Owner, whether one (1) or more Persons, shall have more than one (1) membership per Unit owned. In the event the Owner of a Unit is more than one (1) Person, the vote for such Unit shall be exercised as provided below. The membership rights of a Unit owned by a corporation or partnership shall be exercised by the individual designated from time to time by the Owner in a written instrument provided to the secretary of the Master Association, subject to the provisions of this Master Declaration and the Bylaws. 4.2 Voting. Every Person who is the Owner of a Parcel, Lot or Unit that is subject to Assessment shall be a Member of the Master Association (provided, however, the Declarant shall remain a Member in the Master Association at all times as a Class B Member with voting rights, notwithstanding its temporary exemption status from required Assessment payments). The Master Association shall have two (2) classes of membership, Class A and Class B as follows: 4.2.1 Class A. Class A Members shall be all Owners, including Declarant, with the exception of the Class B Member, if any. Class A Members shall have the following number of Memberships: (a) One (1) Membership for each Dwelling Unit owned by the Member. (b) In the case of the Owner of a Parcel designated for Single Family Residential Development, or Cluster Residential Development, one Membership for each Dwelling Unit permitted upon the Development, one Membership for each Dwelling Unit permitted upon the Parcel under the Master Land Use Plan then in effect for the Community. If a Plat or other instrument creating Lots is recorded covering all or part of the area within the Parcel, the Parcel shall be reduced in size by the area so platted and the number of Memberships held by the Owner, as Owner of the Parcel, shall be reduced by a number equal to the number of Lots in the recorded Plat. All Memberships attributable to the Parcel shall cease when the land area ceases to be a Parcel because all of the area in the Parcel has been platted or otherwise dedicated to the public and no unplatted Single Family Residential Use, or Cluster Residential Use area remains within the Parcel. (d) No Memberships shall be allocated to Community Area, Exempt Property (except as otherwise provided regarding Declarant), property utilized for a Church Use or other General Public Uses. (e) Each such Membership shall be appurtenant to and may not be separated from ownership of the Lot or Parcel to which the Membership is attributable. As provided in this Section 4.2.1, there shall be only one Membership for each Lot, for each Dwelling Unit, which Memberships shall be shared by any joint Owners of, or Owners of undivided interests in, a Parcel, Lot or Unit. 4.2.2 Class B. The Class B Member shall be Declarant. The Class B Member has the right to disapprove actions by the Board. Other rights of the Class B Member, -17-