Page ____ of ______ ADDENDUM NO.
TO REAL ESTATE PURCHASE CONTRACT
THIS IS AN [ ] ADDENDUM [ ] COUNTEROFFER to that REAL ESTATE PURCHASE CONTRACT (the "REPC") with an Offer Reference Date of , including all prior addenda and counteroffers, between as Buyer, and as Seller, regarding the Property located at . The following terms are hereby incorporated as part of the REPC: _________________________________________________________________________________________________
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BUYER AND SELLER AGREE THAT THE CONTRACT DEADLINES REFERENCED IN SECTION 24 OF THE REPC (CHECK APPLICABLE BOX): [ ] REMAIN UNCHANGED [ ] ARE CHANGED AS FOLLOWS:___________________ _________________________________________________________________________________________________ To the extent the terms of this ADDENDUM modify or conflict with any provisions of the REPC, including all prior addenda and counteroffers, these terms shall control. All other terms of the REPC, including all prior addenda and counteroffers, not modified by this ADDENDUM shall remain the same. [ ] Seller [ ] Buyer shall have until [ ] AM [ ] PM Mountain Time on (Date), to accept the terms of this ADDENDUM in accordance with the provisions of Section 23 of the REPC. Unless so accepted, the offer as set forth in this ADDENDUM shall lapse. __________________________________________ [ ] Buyer [ ] Seller Signature (Date) (Time) [ ] Buyer [ ] Seller Signature (Date) (Time)
ACCEPTANCE/COUNTEROFFER/REJECTION CHECK ONE: [ ] ACCEPTANCE: [ ] Seller [ ] Buyer hereby accepts the terms of this ADDENDUM. [ ] COUNTEROFFER: [ ] Seller [ ] Buyer presents as a counteroffer the terms of attached ADDENDUM NO. ____. _________________________________________________________________________________________________ (Signature) (Date) (Time) (Signature) (Date) (Time) [ ] REJECTION: [ ] Seller [ ] Buyer rejects the foregoing ADDENDUM. _________________________________________________________________________________________________ (Signature) (Date) (Time) (Signature) (Date) (Time)
THIS FORM APPROVED BY THE UTAH REAL ESTATE COMMISSION AND THE OFFICE OF THE UTAH ATTORNEY GENERAL, EFFECTIVE AUGUST 5, 2003. IT REPLACES AND SUPERSEDES ALL PREVIOUSLY APPROVED VERSIONS OF THIS FORM.
One OneOne
Benchmark Modern Inc.830 Jefferson Street, Salt Lake City, Utah 84101
1-In reference to Section 7 item(b) A Commitment for the policy of title insurance as referenced in Sections 6.1and 6.2; will be provided to buyer when title research is completed.2-In reference to Section 11-Seller DOES NOT warrant the heating/cooling, hot water heater, washer, dryer andelectric appliances. Buyer will be provided manufacturers warranties for all heating/cooling, electric appliances,hot water heater, washer and dryer.
Jefferson Walkway
Exterior:
-Zip System Sheathing- It’s a one-of-a-kind structural roof and wall system with a built-in energy-efficient barrier that keeps moisture out and reduces air leakage, while still allowing panels to properly dry. Key Features and Components of ZIP System® Sheathing and Tape
• High quality structural sheathing panel made of engineered wood delivers strength and durability.
• Built-in vapor permeable water-resistive barrier eliminates the
hassles of house wrap and felt. Engineered for enhanced drainage of bulk water and optimal permeability to allow water vapor to pass through and promote drying.
• A continuous, rigid air barrier decreases unwanted air leakage for
greater energy efficiency. • ZIP System™ tape with a specially engineered, high performance
acrylic adhesive bonds with ZIP System® panels for a permanent protective seal.
-Stucco EIFS- Exterior Insulation and Finish Systems (EIFS) offer continuous insulation by design. The stucco has a continuous R-16 value and eliminates thermal bridging. Thermal bridging i occurs when a more conductive (or poorly insulating) material allows an easy pathway for heat flow across a thermal barrier. EIFS description-
• A water-resistive barrier (WRB) that covers the substrate
• A drainage plane between the WRB and the insulation board that is most commonly achieved with vertical ribbons of adhesive applied over the WRB
• Insulation board typically made of expanded polystyrene (EPS) which is secured with an adhesive or mechanically to the substrate
• Glass-fiber reinforcing mesh embedded in the base coat • A water-resistant base coat that is applied on top of the insulation to
serve as a weather barrier • A finish coat that typically uses colorfast and crack-resistant acrylic co-
polymer technology.
-Siding material- Clear vertical grain cedar. Pre-stained with Super Deck Cedar tone semi-transparent. Vertical grain cedar is the most dimensionally stable wood siding. Maintenance will depend on weather and exposure. -Windows- Integrity by Marvin. Fiberglass black exterior and Clear wood Pine interior. Fiberglass has an amazing strength-to-weight ratio. It’s highly durable, doesn’t leak or corrode, resists rot and resists expanding and contracting in temperature swings. These properties make Ultrex fiberglass 8 times stronger than vinyl and a far more durable material.
• Ultrex expands at virtually the same rate as glass which means the windows stay tight and true making them resistant to leaks, seal failures and stress cracks that can compromise energy efficiency and long-term performance.
• Integrity® from Marvin® Windows and Doors combines the low conductivity and superior performance attributes of Ultrex with a selection of energy-efficient glazing options to deliver ENERGY STAR qualified solutions.
• U-Value of the windows is less than .29 which is the Energy Star minimum.
-Soffitt- Black 24 gauge formed metal panels
-Exterior lighting- LED Dark Sky Compliant- Reduces light pollution that is harmful to ecosystems. LED stands for light emitting diode. LED lighting products produce light approximately 90% more efficiently than incandescent light bulbs. How do they work? An electrical current passes through microchip, which illuminates the tiny light sources we call LEDs and the result is visible light.
-Ring doorbell- lets you answer the door from anywhere with your smartphone.
-Roof-R-60 insulated roof with 5” of continuous exterior insulation to eliminate thermal bridging. Grey TPO- The term TPO stands for Thermoplastic Polyolefin. TPO is a blend of polypropylene and ethylene-propylene rubber.
• TPO’s membrane’s white reflective surface exceeds the EPA’s ENERGY STAR requirements and white, tan and gray are listed with the Cool Roof Rating Council. This means that having a TPO roof on your home or building will keep the interior thermally comfortable on hot summer days while reducing your air conditioning costs.
-Solar Panels- Solar Photovoltaic 2.56 kW system. LG 320 W black panels. Anaphase S2800 micro inverters and Envoy Monitoring. A photovoltaic system, also PV system or solar power system, is a power system designed to supply usable solar power by means of photovoltaics. 2,560 watt grid tied roof mounted PV system. • Based on energy modeling done by Nexant, should cover 53% of
total energy usage • Federal Tax Credit $2,880.00 • State Tax Credit $2,000.00
-Foundation- Shallow frost protected foundation with continuos R-32 insulation. Insulation slab on grade. Exterior foam insulates the concrete from the outside elements.
Interior:
-Concrete Floors- polished concrete floors. Maintenance is minimum, as long as spills are cleaned quickly floors will never require refinishing.
-COREtec Floating Floor- COREtec flooring is a great alternative to glue down LVT, solid locking LVT, or laminate flooring. The flooring is made from recycled wood and bamboo dust, limestone, and virgin PVC. Min on maintenance. Clean with mild floor cleaner.
-Staircase- 16 gauge bent plate steel. Maintenance clear coat every few years.
-Wall Insulation- R-22 blown in Fiberglass. In total with the EIFS and Fiberglass the exterior to interior walls total is R-38. Drywall is 5/8” with a level 5 smooth finish. • Level 5 is the highest quality finish is the most effective method to
provide a uniform surface and minimize the possibility of joint photographing and of fasteners showing through the final decoration. This level of finish is required where gloss, semigloss or enamel are specified or when flat joints are specified over an untextured surface, or where critical lighting conditions occur. The prepared surface shall be coated with a drywall primer prior to the application of final decoration.
-Painting- Color- Silver Satin.
-Kitchen, bathroom cabinets- textured melamine.
-Bathroom and kitchen tile- white ceramic tiles
-Countertops- Arctic White Ceaser stone
-Plumbing fixtures- Grohe and Hansgrohe for bathrooms. Kitchen sink is Kraus. Decora undercounted sinks and wall mounted Duravit sink.
-Appliances- Samsung Side by Side Stainless Energy Star Refrigerator, Samsung Stainless Energy Star Dishwasher and Samsung Energy Star Induction Range. LG Ventless Energy Star Washer/Dryer
-LED lighting- LED recessed can light, under cabinet and ceiling mounted lights. Ceiling mounted lights are Modern form. Bathroom is LED wall mounted WAC.
-Pocket Doors- Paint grade solid core doors
-Framed Euro glass in the master shower
-Heating and Cooling- Mitsubishi Electric Hyper Heating Mini-Split. Hyper-Heating INVERTER® (H2i®) technology uses an enhanced compressor system to deliver heat down to -13° F. H2i systems qualify for the ENERGY STAR Tier 2 level. This means that the ductless mini-splits go above and beyond ENERGY STAR's minimum requirements for efficiency. The INVERTER-driven compressor uses only the energy it needs to cool or heat an area. It automatically senses and responds to changes without constantly turning on and off. 10 year warranty.
-HRV- Broan HRV- Heat Recovery Ventilator- is an energy recovery ventilation system using equipment known as a heat recovery ventilator, heat exchanger, air exchanger, or air-to-air heat exchanger which employs a cross flow or counter-flow heat exchanger between the inbound and outbound air flow. Each Bedroom and downstairs has a air supply vent.
-Heat pump water heater- Rheem 60 gallon Performance Platinum Hybrid Electric water heater- High 3.29-3.40 UEF reduces operating costs. Uniform Energy Factor. Energy Star rated. 10 year warranty.
WHEN RECORDED, RETURN TO:
Robert A. McConnell
Parr Brown Gee & Loveless
101 South 200 East, Suite 700
Salt Lake City, Utah 84111
Tax Parcel Nos.
(Space above for Recorder’s use only.)
DECLARATION
OF
EASEMENTS, COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
JEFFERSON WALKWAY
THIS DECLARATION OF EASEMENT, COVENANTS, CONDITIONS AND
RESTRICTIONS FOR JEFFERSON WALKWAY (“Declaration”) is made and executed to be
effective as of September ___, 2017, by Benchmark Modern, Inc., a Utah corporation
(“Declarant”), with reference to the following:
RECITALS:
A. Declarant is the owner of certain real property located 830 South Jefferson
Street, 832 South Jefferson Street, 834 South Jefferson Street, 833 South 200 West, 835 South
200 West, and 837 South 200 West, (as more particularly defined below, the “Property”) as
subdivided by that certain plat of subdivision titled “Jefferson Walkway” (“Plat”) and recorded
on September 28, 2017 as Entry No. 12626148, in Book 2017P, at Page 264 in the office of the
County Recorder for Salt Lake County, State of Utah. The Property is more particularly
described in Exhibit A. The Plat subdivides the Property into seven lots, six of which are known
as Lot 1, Lot 2, Lot 3, Lot 4, Lot 5, and Lot 6 (each a “Lot” and collectively the “Lots”), and two
parcels, known as Parcel A and Parcel B. Lot 7 is not subject to this Declaration.
B. Declarant closed on the purchase of the Property from the Redevelopment
Agency of Salt Lake City (“RDA”) pursuant to a purchase and sale agreement dated April 20,
2015, and amended October 20, 2015 and April 20, 2016, subject to a development agreement
between Declarant and the RDA. As a condition to Closing on the sale of the Property to
Declarant the RDA retained the right to approve the home owners association documents
intended to ensure that the improvements related to the Association Parcels (defined below) are
well maintained. As a condition to such approval, and closing on the sale of the Property, the
RDA has retained, pursuant to paragraph 13.2 below, the right, but not the obligation, to enforce
the rights and obligations granted by this Declaration.
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C. The Property has been or is in the process developed as the Jefferson Walkway
project by constructing certain buildings and improvements on the Lots (“Project”). A current
site plan (“Site Plan”) of the Project is attached as Exhibit B.
D. The Jefferson Walkway Home Owners Association, Inc. (“Association”), has
been or will be created by filing Articles of Incorporation with the Utah Division of Corporations
and Commercial Code. The Association shall henceforth be the governing body of the Project
subject hereto and shall operate in accordance with the “Bylaws of the Association” (“Bylaws”),
attached hereto as Exhibit C and made a part hereof.
E. Declarant intends by recording this Declaration and the Plat to: create certain
easements for parking, access, delivery, utilities, maintenance, signage, and a public midblock
walkway, and landscaping for the use and enjoyment of the Owners of the Lots, and, with
respect to the midblock walkway only, the general public; and to impose upon the Project
mutually beneficial easements and restrictions under a general plan of improvement for the
benefit of the Lots and the Owners thereof.
ARTICLE I
DEFINITIONS
1.1 Defined Terms. Unless the context clearly indicates otherwise, certain terms as
used in this Declaration shall have the meanings set forth in this Article I.
1.2 “Association” means Jefferson Walkway Owners Association, Inc., a Utah
nonprofit corporation, organized to be the governing body of the Project.
1.3 “Association Parcels” means the Parcels, which Parcels the Association shall own
and maintain for the purpose of pedestrian and vehicular ingress and egress, public walkway,
parking, loading and unloading, landscaping, signage, lighting, garbage disposal, and the
installation of utilities including sewer, water, storm drainage, electricity, and gas, together with
related equipment, facilities, fixtures, and other personal property located thereon for the use and
benefit of all Owners. The Public Walkway is also located within the Association Parcels. The
Association Parcels shall be managed and controlled by the Association for the use and
enjoyment of the Owners as more fully described in this Declaration.
1.4 “Board of Trustees” or “Board” means the Board of Trustees of the Association.
1.5 “Building(s)” means any permanently enclosed structure placed, constructed or
located on a Lot, which shall include appurtenant canopies and supports.
1.6 “Declarant” means Benchmark Modern, Inc. and its successors and assigns.
1.7 “Lot[s]” means each of Lot 1, Lot 2, Lot 3, Lot 4, Lot 5 and/or Lot 6 as shown on
the Plat, together with all improvements located thereon and all appurtenances thereunto
appertaining.
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1.8 “Maintenance Fund” means the fund created or to be created pursuant to the
provisions of Article IX of this Declaration and into which all funds of the Association shall be
deposited, for maintaining, repairing, replacing and operating the Association Parcels.
1.9 “Member” means a member and/or trustee of the Association.
1.10 “Mortgage” means any mortgage, deed of trust, or other security instrument by
which a Lot or any part thereof is encumbered.
1.11 “Mortgagee” means (i) any person named as the mortgagee or beneficiary under
any Mortgage, or (ii) any successor to the interest of such person under such Mortgage.
1.12 “Owner” means any person or entity or combination thereof, including the
Declarant, at any time owning a Lot within the Project, as shown on the records of Salt Lake
County, State of Utah. The term “Owner” shall not refer to any Mortgagee (unless such
Mortgagee has acquired title for other than security purposes) or to any person or entity
purchasing a Lot under contract until such contract is fully performed and legal title conveyed.
1.13 “Owner Maintenance Easement” means an easement in favor of each Owner over
that portion of the Lot immediately adjacent to such Owner’s Building upon which a Utility
Easement is shown on the Plat, which Owner Maintenance Easement shall be for the purpose of
repairing, maintaining and replacing the Building immediately adjacent to each such Utility
Easement. With respect to each such Owner Maintenance Easement, the Lot upon which the
Building to be maintained is the dominant estate and the Lot upon which the adjacent Utility
Easement is located is the servient estate. Each Owner Maintenance Easement shall be limited
to the precise boundary of the Utility Easement upon which it is located. The right and
obligations of each Owner with respect to the applicable Owner Maintenance Easement are set
forth in paragraph 5.6 below.
1.14 “Parcel[s]” means Parcel A and/or Parcel B as the same are shown on the Plat.
1.15 “Plat” means the Jefferson Walkway Plat of Subdivision more particularly
described in Paragraph A of the Recitals.
1.16 “Project” means all of the Lots and all Association Parcels.
1.17 “Property” means the real property more particularly described in Paragraph A of
the Recitals above and on Exhibit “A” attached hereto.
1.18 “Public Walkway” means the paved walkway and improvements appurtenant
thereto including landscaping and a perimeter wall/fence that will be constructed by Declarant in
the Public Walkway Easement.
1.19 “Public Walkway Easement” means the easement set forth in paragraph 5.7,
which easement is located on that portion of the Parcels identified on the Site Plan.
1.20 “Site Plan” means the Site Plan attached hereto as Exhibit B.
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1.21 “Total Votes of the Association” means the total number of votes appertaining to
the Lots in the Project. Each Owner shall be entitled to one vote for each Lot that it owns.
1.22 “Utility Easement” means those areas identified as “Utility Easement” on the Plat.
ARTICLE II
DIVISION OF PROJECT
2.1 Submission to Declaration. All of the Project (i.e. the Lots and the Association
Parcels) is and shall be subject to the covenants, conditions, restrictions, easements, uses,
limitations, and obligations set forth herein and on the Plat, each and all of which are declared
and agreed to be for the benefit of the Project and in furtherance of a plan for improvement of
said property and division thereof into Lots and Parcels. Further, each and all of the provisions
hereof shall be deemed to run with the land and shall be a burden and a benefit to the Declarant,
its successors and assigns, and any person acquiring, leasing, or owning an interest in any Lot or
Parcel, their lessees, heirs, executors, administrators, devisees, successors and assigns.
2.2 Subdivision into Lots. Pursuant to the Plat, the Property is divided into lots and
parcels (including the Lots and Parcels) as more particularly described on the Plat. The Owner
of each Lot, shall have a non-exclusive easement to use the Association Parcels for the purpose
set forth on the Plat and described in this Declaration.
2.3 Easements. The Declarant, its successors and assigns, shall have a transferable
easement over and on the Association Parcels, for the purpose of doing all things reasonably
necessary and proper for the construction, completion, development and sale of the Project.
ARTICLE III
IMPROVEMENTS
3.1 Description of Improvements. The Project consists of six (6) Lots and two (2)
Parcels as shown on the Plat (i.e. all lots and parcels shown on the Plat, excluding Lot 7). Each
Lot shall, when improved, contain one detached Building, principally constructed of wood and
such other materials as allowed by current building codes.
3.2 Description and Legal Status of Lots. The Plat shows the number of each Lot.
All Lots shall be capable of being independently owned, encumbered, and conveyed.
3.3 Contents of Exhibit D. Exhibit D to this Declaration furnishes the following
information with respect to each Lot: (a) the Lot number; (b) the number of votes appertaining
to each Lot by the Owner as a Member of the Association; and (c) each Lot’s designated parking
space, as shown on the Site Plan.
ARTICLE IV
NATURE AND INCIDENTS OF OWNERSHIP
4.1 Ownership and Maintenance of Lots. Subject to the provisions of this
Declaration, each Owner shall have the right to construct, improve, reconstruct and repair the
Building and other improvements located on such Owner’s Lot. Each Lot, and the Building and
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other improvements located thereon, being the sole and exclusive property of the Owner thereof,
and shall be maintained and repaired by the Owner and shall be kept in a clean and sanitary
condition and in a state of good repair.
4.2 Title. Title to a Lot within the Project may be held or owned by any person or
entity or any combination thereof and in any manner in which title to any other real property may
be held or owned in the State of Utah, including without limitation, joint tenancy or tenancy in
common.
4.3 Prohibition Against Subdivision of Lot. No Owner, by deed, plat or otherwise,
shall subdivide or in any manner cause his Lot to be subdivided, partitioned or separated into
physical tracts or parcels smaller than the whole Lot as shown on the Plat.
4.4 Ownership and Use of Association Parcels. The Association shall own the
Association Parcels subject to easements for use in favor of all of the Owners and/or the general
public, as applicable. The Association shall have the exclusive right and obligation to manage
and maintain all Association Parcels, and to repair, replace and reconstruct any existing or new
Association Parcels. The Association, pursuant to action taken in accordance with this
Declaration and the Articles and Bylaws, may determine from time to time, subject to any
required governmental approval, what improvements will be constructed or located on the
Association Parcels. Each Owner shall, by virtue of receiving a deed to a Lot, own his Lot
subject to and together with a non-exclusive easement in favor of all Owners on, over, across and
through the Association Parcels for the purposes and uses set forth on the Plat and in this
Declaration. Except as otherwise provided in this Declaration, each Owner shall be entitled to
use of the Association Parcels in any manner that does not hinder or encroach upon the rights of
other Owners and is not contrary to any rules or regulations promulgated by the Association.
4.5 Maintenance of Association Parcels. All Association Parcels shall be maintained,
cleaned, repaired and reconstructed by the Association, and shall be re-landscaped, rebuilt,
replaced, repaired or materially altered only with the review, approval and consent of the Board
of Trustees of the Association, and in accordance with the provisions of this Declaration.
Without limiting the generality of the foregoing, the Association shall (a) maintain, clean, repair
and keep in a sanitary condition and in a state of good repair all Association Parcels; (b) remove
all snow from all parking areas, sidewalks and driveways located on the Association Parcels; and
(c) re-landscape, re-construct and repair all Association Parcels at such time as the same are in a
state of disrepair and require replacement.
4.6 Fences and Walls. The Association shall have the exclusive right to construct,
locate, maintain, repair, and reconstruct any perimeter fences/walls located in Association
Parcels. Any perimeter fences/walls located in Association Parcels shall not be removed except
with the approval of the majority of the members in the Association, at a meeting of the Owners
duly held in accordance with the provisions of this Declaration, the Articles and Bylaws. No
additional fences or walls, including any rear or side fences, shall be constructed between any
Lots without the approval of the Board of Trustees. Any fences or walls permitted by the
provisions of this section, shall be constructed of materials and shall be of such colors, styles and
characteristics, as shall be approved by the Board of Trustees from time to time, with the intent
being that the Board of Trustees will control the construction, maintenance and reconstruction of
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any fences or walls allowed by the provisions hereof to assure that they are constructed of similar
materials and that they are harmonious with the overall architecture and aesthetics of the Project.
4.7 Separate Mortgages by Owners. Each Owner shall have the right separately to
mortgage or otherwise encumber his Lot. No Owner nor the Association shall attempt to or shall
have the right to separately mortgage or otherwise encumber the Association Parcels or any part
thereof. Any mortgage or other encumbrance of any Lot shall be subordinate to all of the
provisions of this Declaration, and in the event of foreclosure the provisions of this Declaration
shall be binding upon any Owner whose title is derived through foreclosure by private power of
sale, judicial foreclosure, or otherwise.
4.8 Separate Taxation. Each Lot and the Building and other improvements located
thereon shall be assessed separately for all taxes, assessments, and other charges of the State of
Utah or of any political subdivision thereof or of any special improvement district or of any other
taxing or assessing authority. All such taxes, assessments, and other charges on each respective
Lot shall be separately levied against the Owner thereof. No forfeiture or sale of any Lot for
delinquent taxes, assessments, or other governmental charges shall divest or in any way affect
the title to any other Lot.
4.9 Mechanics’ Liens. No labor performed or material furnished for use in
connection with any Lot with the consent or at the request of an Owner or his agent or contractor
shall create any right to file a statement, claim, or notice of mechanic’s lien against the Lot of
any other Owner not expressly consenting to or requesting the same.
4.10 Description of Lot. Any deed, lease, mortgage, deed of trust, or other instrument
conveying or encumbering a Lot shall describe the interest or estate involved substantially as
follows:
All of LOT No. ______ contained within Jefferson Walkway, as
the same is identified in the subdivision plat recorded in the Office
of the Recorder of Salt Lake County, Utah as Entry No.
, in Book , at Page
(as said subdivision plat may have heretofore been
amended or supplemented) and in the Declaration of Easements,
Covenants, Conditions and Restrictions for Jefferson Walkway,
recorded in the Office of the Recorder of Salt Lake County, Utah
as Entry No. _______, in Book _____, at Page ____, (as said
Declaration may have heretofore been amended or supplemented).
Regardless of whether or not the description employed in any such instrument is in the above
specified form, all provisions of this Declaration shall be binding upon and shall inure to the
benefit of any party who acquires any interest in a Lot. Neither the membership in the
Association, nor the non-exclusive easement for use of the Association Parcels shall be separated
from the Lot to which it appertains; and, even though not specifically mentioned in the
instrument of transfer, such mandatory membership in the Association and such of non-exclusive
easement for use of the Association Parcels shall automatically accompany the transfer of the Lot
to which they relate.
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4.11 Non-Exclusive Easements. All driveways or walkways constituting a part of the
Association Parcels that provide access to public roads or walkways outside of the Project shall
be easements for the non-exclusive use of Declarant, the Owners, their guests, occupants,
lessees, and invitees.
4.12 Mortgages and Liens on Association Parcels. Except as expressly provided in this
Declaration, the Association shall not attempt nor shall it have the right to mortgage or otherwise
encumber the Association Parcels or any part thereof without the prior written consent of a
majority of the Owners. No labor performed or material furnished for use in connection with the
Association Parcels shall create any right to file a statement, claim, or notice of mechanic’s lien
against the Lots.
ARTICLE V
EASEMENTS
5.1 Easements for Maintenance. The Association shall have the irrevocable right to
have access from time to time to the Lots (but not the Buildings) during such reasonable hours as
may be necessary for the maintenance, cleaning, repair, and replacement thereof or for making
emergency repairs at any time herein necessary to prevent damage to the Association Parcels.
5.2 Right to Ingress and Egress. Each Owner shall have the right to ingress and
egress over, upon, and across the Association Parcels as necessary for access to such Owner’s
Lot, and such rights shall be appurtenant to and pass with the title to each Lot.
5.3 Easement for Completion of Project. Declarant shall have a transferable easement
over and on the Association Parcels for the purpose of completing construction of the Project and
improvements therein and for the purpose of doing all things reasonably necessary or appropriate
in connection therewith.
5.4 [Reserved].
5.5 Easements Reserved by Declarant and Association. The Association shall have
power to grant and convey to any third party and Declarant hereby reserves unto itself easements
and rights of way, including but not limited to rights of ingress and egress, in, on, over and under
the Association Parcels, for the purpose of constructing, erecting, operating and maintaining
lines, cables, wires, conduits or other devices for electricity, cable television, power, telephone
and other purposes, public sewers, storm drains and pipes, water systems, sprinkling systems,
water, heating and gas lines or pipes, garbage collection facilities, lighting poles and lines,
landscaping, curb and gutter, signage and any similar public or quasi-public improvements or
facilities for the benefit of all Owners.
5.6 Owner Maintenance Easements. Each Owner shall have an easement over that
portion of the Lot or Association Parcels immediately adjacent to such Owner’s Building upon
which a Utility Easement is shown on the Plat for the purpose of allowing each respective Lot
Owner the right to access the neighboring Lot as indicated for the sole purpose of maintaining
and repairing the portion of their Building that falls upon the common property line with the
servient estate, including by, among other things, maintaining and replacing paint, repairing and
maintaining windows, and conducting regular roof repairs (“House Maintenance Access”). Each
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Owner of the dominant estate shall exercise its House Maintenance Access rights in a manner
that is as non-intrusive as possible to the Owner of the servient estate and will, whenever
possible, provide at least 24 hours-notice to the Owner of the servient estate before entering the
servient estate and commencing any maintenance activities therefrom, and the Owner of the
servient estate shall have the right to reasonably delay such access from time to time, but never
for more than 7 consecutive days. Each Owner of the dominant estate shall be solely
responsible to repair any damage caused by or in the course of its House Maintenance Access.
5.7 Public Walkway Easement. There is hereby created a public pedestrian walkway
through the Project and connecting 200 West and Jefferson Street as shown on the Plat. The
Association shall ensure that the Public Walkway remains open to the public and maintain the
Public Walkway in good repair and condition, such that the Public Walkway provides a clear and
open view through the Project.
ARTICLE VI
RESTRICTIONS ON USE
6.1 Residential Uses Only. Each Lot and the Building and other improvements
located thereon shall be used only for residential purposes and such other non-commercial
purposes as are allowed by applicable zoning regulations and approved in advance by the Board
of Trustees.
6.2 Compliance with Laws. Each Owner shall at all times comply with all present
and future safety, health, environmental or other laws, ordinances, orders, rules, regulations and
requirements of all federal, state, county and municipal governments, departments, commissions,
boards and officers, and all orders, rules and regulations of the National Board of Fire
Underwriters or any other body exercising similar functions, which may be applicable to the Lot
and Building and other improvements located thereon. Each Owner shall (a) comply with all
federal, state and local statutes, rules and regulations governing substances or materials identified
as toxic, hazardous or otherwise damaging to person or property by reason of its chemical nature
(“Environmental Laws”) and (b) promptly notify the Association and any other affected Owner
in the event of any discharge, spillage, uncontrolled loss, seepage, release or filtration of oil or
petroleum or chemical liquids or solids, particles, liquids or gaseous products, hazardous waste
or any product or byproduct of such Owner’s operations that may constitute an environmental
hazard upon, on or under the Lot or improvement thereon or any other matter relating to the
Environmental Laws as they may affect the Project.
6.3 Temporary Structures. No temporary buildings or other temporary structures
shall be permitted on any Lots; provided, however, trailers, temporary buildings and the like
shall be permitted for construction purposes during approved alteration, replacement,
reconstruction or repair period of a Building. The location and nature of any structures must be
submitted to and approved by the Board of Trustees and shall be placed as inconspicuously as
practicable, shall cause no inconvenience to Owners of other Lots, and shall be removed not later
than thirty (30) days after the date of substantial completion of the work in conjunction with
which the temporary structure was used. Notwithstanding the foregoing, each Owner shall be
able to freely use normal and ordinary deck and patio furnishings, which may include umbrellas,
canopies, shade sails, and similar shade devices.
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6.4 Antennas, Aerials and Dishes. No exterior radio, television or microwave
antenna, aerial, dish or similar facility of any kind shall be erected or maintained on any Building
or Lot without the prior approval of the Board of Trustees, which shall not be unreasonably
withheld. All exterior antenna and similar facilities shall be located and positioned so as to be
minimally visible where possible when viewed from the streets or the Public Walkway by the
general public, and shall be aesthetically incorporated into the architectural design of the
Building and shall be constructed of materials compatible with those of the Building to which it
relates.
6.5 Auxiliary Structures. No ancillary building or other structures are permitted on a
Lot.
6.6 Utilities; Mechanical Equipment; Roof Projections.
(a) All utility lines, including electrical, shall be underground. Pad mounted
transformers, switch gear and similar equipment that must be installed above ground level shall
be installed in landscape areas with suitable landscaping consistent with safety and other
regulations of the relevant utility companies. Utility service lines (including, but not limited to,
gas, water, sewer, and electricity) shall be connected to Buildings at points approved in writing
by the Board of Trustees.
(b) All mechanical equipment shall be located and positioned so as to be
minimally visible where possible when viewed from the streets or the Public Walkway by the
general public, and shall be aesthetically incorporated into the architectural design of the
Building and shall be constructed of materials compatible with those of the Building to which it
relates.
6.7 Garbage. No refuse, garbage, trash, grass, shrub or tree clippings, plant waste,
compost, bulk materials or debris of any kind shall be kept, stored or allowed to accumulate on
any Lot except within an enclosed structure or container approved by the Board of Trustees or
unless appropriately screened from view, in a manner acceptable to the Board of Trustees, except
that any refuse or storage container containing such materials and approved by the Board of
Trustees may be placed outside at such time as may be reasonably necessary to permit garbage or
trash pickup or materials storage. The Board of Trustees, in its discretion, may adopt and
promulgate reasonable rules and regulations relating to the type and appearance of permitted
trash receptacles, the screening thereof by fences or otherwise, and the manner of storing and
using the trash receptacles on the Project.
6.8 Parking and Parking Areas. No parking shall be permitted on any street, drive or
alley, or any place other than parking areas located upon the Project as designated by the Site
Plan. Each Owner shall be responsible for compliance by its visitors, guests, tenant and invitees
of such rule. There shall be no charge for parking in the Association Parcels without the prior
written consent of the Board of Trustees or unless otherwise required by law. No Owner,
including its tenants and invitees, shall be entitled to use more than one parking space per Lot.
Each Owner, including its Tenants, shall only be entitled to use the parking space designated for
their respective Lot as set forth in Exhibit D.
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6.9 Utilities. All pipes, lines and other facilities for utilities, including water, gas,
sewer and drainage, and all lines and conduits of any type hereafter installed for the transmission
of audio and visual signals or electricity shall be located beneath the ground or within an
enclosed structure, except that certain overhead lighting and utility appurtenances may be located
above ground.
6.10 Maintenance of Buildings and Improvements. Each Owner shall at its own
expense keep each Lot and all improvements located thereon, in a clean, safe, attractive and
aesthetically pleasing condition, in good order and repair, including without limitation, painting
and repairing and generally maintaining the exterior of all Buildings and other improvements at
such times as necessary to maintain a first class appearance and function. The expense of any
maintenance, replacement or repairs required in this section shall be the sole expense of each
individual Owner and the Board of Trustees shall in no way be responsible for any expense
related to any maintenance, repair, replacement or improvement of any Building or other
improvements on such Owner’s Lot.
6.11 Noxious or Offensive Activity. No noxious or offensive activity shall be carried
on or upon any Lot or Building, nor shall anything be done or placed thereon which is or may
become a nuisance or cause an unreasonable disturbance, unsightliness or annoyance to others or
which constitutes a trespass against any adjoining Lot or Building, its Owners, occupants or
subtenants. No excessive emission of fumes, odors, vibration, gasses, radiation, dust, liquid,
wastes, smoke or noise shall be emitted from any Lot or Building.
6.12 Annoying Sounds or Odors. No sound or odor shall be emitted from any Lot or
Building that is noxious or unreasonably offensive to others. Without limiting the generality of
the foregoing, no exterior speakers, horns, whistles, bells or other sound devices, other than
devices used exclusively for security, fire prevention or fire control purposes, shall be located or
used on any Lot or Building. Notwithstanding the foregoing, music may be played in outdoor
entertaining areas at reasonable levels that do not unreasonably intrude on the enjoyment of the
other Lots or Association Parcels by other Owners.
6.13 Maintenance of Drainage. Each Building and Lot shall have appropriate
provision for water retainage as may be necessary or appropriate for the Project’s overall
drainage system, as determined in the reasonable judgment of the Board of Trustees. The
established drainage pattern over any Lot or Building may not be altered except as approved in
writing by the Board of Trustees.
6.14 Exterior Lighting. All exterior and security lighting shall have underground
service and shall be designed, erected, altered and maintained in accordance with plans and
specifications approved in writing by the Board of Trustees to the end that lighting shall be
compatible and harmonious throughout the Project.
6.15 Signs. The Association shall maintain all signage on the Project for the Project
for the benefit of all Owners and General Public with respect to the Public Walkway. All signs
must be approved in writing by the Board of Trustees and must conform to any applicable sign
ordinances, rules and regulations
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6.16 No Obstructions. There shall be no obstruction of the Association Parcels by any
Owner. Except with the prior written consent of the Association, Owners shall neither store nor
leave any of their equipment, fixtures or personal property in the Association Parcels.
6.17 Prohibition of Damage and Certain Activities. Nothing shall be done or kept in or
on any Lot or in the Association Parcels or any part thereof which would be in violation of any
statute, rule, ordinance, regulation, permit, or other validly imposed requirement of any
governmental authority. No damage to, or waste of, the Association Parcels or any part thereof
shall be committed by any Owner or guest or invitee of any Owner, and each Owner shall
indemnify and hold the Association and other Owners harmless against all loss resulting from
any such damage or waste caused by such Owner, his agents, employees, guests, lessees,
licensees, or invitees.
6.18 Rules and Regulations. The Owners and their agents, guests, invitees, employees,
and contractors shall comply with all of the rules and regulations governing use of the
Association Parcels, as such rules and regulations may from time to time be adopted, amended,
or revised by the Board of Trustees.
6.19 [Reserved].
6.20 Application of Restrictions. All of the easements, covenants, conditions,
restrictions and other provisions of this Declaration shall apply to all Owners and anyone
claiming by, through or under the Owners including but not limited to occupants, guests, lessees,
employees, agents, contractors and invitees. All of the Project shall be held, used and enjoyed
subject to the limitations, restrictions and other provisions set forth in this Declaration.
Reasonable variations from the strict application of the limitations and restrictions in this Article
VI in any specific case may be granted by the Board of Trustees, if such strict application would
be unreasonable or unduly harsh under the circumstances or otherwise not in the best interests of,
or harmful to, the other Owners. Any such variance shall not constitute a waiver or estoppel
with respect to any future action by the Board of Trustees.
ARTICLE VII
THE ASSOCIATION
7.1 Membership. Each Owner shall be entitled and required to be a Member of the
Association. Membership shall begin immediately and automatically upon becoming an Owner
and shall terminate immediately and automatically upon ceasing to be an Owner. If title to a Lot
is held by more than one person, the membership appurtenant to that Lot shall be shared by all
such persons in the same proportionate interests and by the same type of tenancy in which title to
the Lot is held. 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. An Owner shall be entitled to one
membership for each Lot owned by said Owner. Each membership shall be appurtenant to the
Lot to which it relates and shall be transferred automatically by conveyance of that Lot.
Ownership of a Lot within the Project cannot be separated from membership in the Association
appurtenant thereto, and any devise, encumbrance, conveyance, or other disposition of a Lot
shall be construed to be a devise, encumbrance, conveyance or other disposition, respectively, of
the Owner’s membership in the Association, and the rights appurtenant thereto. No person or
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entity other than an Owner may be a member of the Association, and membership in the
Association may not be transferred except in connection with the transfer of a Lot.
7.2 Board of Trustees. The Board of Trustees shall consist of three (3) members.
Declarant reserves the right to appoint all of the Board of Trustees until the date the date that is
sixty (60) days after seventy-five percent 75% of the Lots have been conveyed to Owners other
than Declarant.
7.3 Amplification. The provisions of this Article VII may be amplified by the
Articles of Incorporation and Bylaws of the Association; provided, however, that no such
amplification shall substantially alter or amend any of the rights or obligations of the Owners set
forth in this Declaration.
ARTICLE VIII
CERTAIN RIGHTS AND OBLIGATIONS OF THE ASSOCIATION
8.1 The Association Parcels. The Association shall be responsible, as described in
Section 4.4, and subject to the rights and duties of the Owners as set forth in this Declaration, for
the exclusive management and control of the Association Parcels and all improvements thereon.
In particular, the Association shall be responsible for the maintenance of the driveways, curb and
gutter, signage, parking areas, landscaping, walkway, sidewalk, and lighting and associated
improvements located in the Association Parcels. All goods and services procured by the
Association in performing its responsibilities under this Section shall be paid for with funds from
the Maintenance Fund.
8.2 Manager. The Association may by written contract delegate in whole or in part to
a professional Manager such of the Association’s duties, responsibilities, functions, and powers
hereunder as are properly delegable. The services of any Manager retained by the Association
shall be paid for with funds from the Maintenance Fund.
8.3 Miscellaneous Goods and Services. The Association may obtain and pay for the
services of such personnel as the Association shall determine to be necessary or desirable for the
proper operation of the Project, whether such personnel are furnished or employed directly by
the Association or by any person or entity with whom or which it contracts. The Association
may obtain and pay for legal and accounting services necessary or desirable in connection with
the operation of the Project, the enforcement of this Declaration, or any other matter. In addition
to the foregoing, the Association may acquire and pay for out of the Maintenance Fund water,
sewer, garbage collection, electrical, gas, and other necessary or desirable utility services for the
Association Parcels and insurance, bonds, and other goods and services common to the Lots.
8.4 Rules and Regulations. The Association, by action of its Board of Trustees, may
make reasonable rules and regulations governing the use of the Lots and of the Association
Parcels, which rules and regulations shall be consistent with the rights and duties established in
this Declaration. The Association may take judicial action against any Owner to enforce
compliance with such rules and regulations or other obligations of Owners arising hereunder, or
to obtain damages for noncompliance therewith, as permitted by law. In the event of such
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judicial action, the Association shall be entitled to recover its costs, including reasonable
attorney’s fees, from the offending Owner.
8.5 Implied Rights. The Association may exercise any right or privilege given to it
expressly by this Declaration or by law, and every other right or privilege reasonably implied
from the existence of any right or privilege given to it herein or reasonably necessary to
effectuate any such right or privilege.
8.6 Reserves. The Association shall maintain an adequate reserve fund for
maintenance, repairs and replacement of those portions of the Association Parcels that must be
replaced on a periodic basis, and such reserves shall be funded from the monthly assessments
described in Article IX below.
ARTICLE IX
ASSESSMENTS
9.1 Agreement to Pay Assessments. Declarant, for and as the owner of the Project
and every part thereof on the date hereof, hereby covenants, and each Owner of a Lot by the
acceptance of instruments of conveyance and transfer therefor, whether or not it be so expressed
in said instruments, shall be deemed to covenant and agree with each other and with the
Association, to pay to the Association all assessments, both regular and special, made by the
Association for the purposes provided in this Declaration. Such assessments shall be fixed,
established and collected from time to time as provided in this Article IX.
9.2 Regular Assessments. Regular assessments shall be computed and assessed
against all Lots in the Project as follows:
(a) Maintenance Expenses.
(i) Annual Budget. On or before the 1st day of December of each
year, the Association shall prepare, or cause to be prepared, an operating budget setting forth an
itemized statement of the anticipated receipts and disbursements for the coming calendar year
and taking into account the general condition of the Project. Each such budget, together with a
written statement from the Association outlining a plan of operation for the year in question and
justifying in every important particular the estimates made, shall be submitted to the Members on
or before the 15th day of December of each year. Such budget, with any changes therein, shall
be adopted by the Members at each annual meeting of the Members. Said operating budget shall
serve as the basis for the schedule of proposed monthly assessments for the annual period for
which it is prepared. Said budget shall also constitute a major guideline under which the
Association shall operate during such annual period.
(ii) Basis of Annual Budget. The annual budget shall be based upon
the Association’s estimates of the cash required to provide for payment of expenses
(“Maintenance Expenses”) arising out of or connected with maintenance, repair, replacement and
operation of the Association Parcels. Such actual expenses and estimated expenses may include,
among other things, the following: expenses of management; governmental taxes and special
assessments; premiums for all insurance that the Association is required or permitted to
maintain; repairs and maintenance; wages for Association employees, including fees for a
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Manager, if any; utility charges; legal and accounting fees; any deficit remaining from a previous
period; creation of a reasonable contingency reserve; sinking or reserve funds required or
allowed herein; and any other expenses and liabilities which may be incurred by the Association
for the benefit of all of the Owners or by reason of this Declaration.
(iii) Regular Assessments. The Association shall establish a regular,
equal monthly assessment to be paid by each Owner (the “Regular Assessments”) for the
purposes of funding the Maintenance Expenses to be paid by the Association. The monthly due
date and manner of payment of the Regular Assessments shall be determined by the Association.
Each Owner shall be responsible for paying its proportionate share of the Maintenance Expenses,
which proportionate share for each Lot shall be 14.285% (for each Owner, “Owners
Proportionate Share”). Each monthly installment of the Annual Assessment shall bear interest at
the rate of one and one-half percent (1½%) per month from the date it becomes due and payable
until paid.
(b) Inadequate Funds. In the event that the Regular Assessments proves
inadequate at any time for whatever reason, including nonpayment of any Owner’s Annual
Assessment, the Association may levy additional assessments in accordance with the procedure
set forth in Section 9.3 below, except that the vote therein specified shall not be necessary.
9.3 Special Assessments. In addition to the Regular Assessments authorized by
Sections 9.1 and 9.2 above, the Association may levy, at any time and from time to time, upon
affirmative vote of at least fifty-one percent (51%) of the Total Votes of the Association, special
assessments (“Special Assessments”), payable over such periods of time as the Association may
determine, for the purpose of defraying, in whole or in part, the cost of any construction or
reconstruction, unexpected repair or replacement of the Association Parcels or any part thereof,
or for any other expenses incurred or to be incurred as provided in this Declaration. This Section
shall not be construed as an independent source of authority for the Association to incur
expenses, but shall be construed to prescribe the manner of assessing for expenses authorized by
other Sections or Articles hereof. Any amounts assessed pursuant hereto shall be based upon
each Owner’s Proportionate Share. Notice in writing of the amount of such special assessments
and the time for payment thereof shall be given promptly to the Owners. No payment shall be
due less than thirty (30) days after such notice shall have been mailed. All unpaid portions of
any Special Assessment shall bear interest at the rate of one and one-half percent (1½%) per
month from the date such portions become due until paid.
9.4 Lien for Assessments. All sums assessed to the Owner of any Lot within the
Project pursuant to the provisions of this Article IX, together with interest thereon as provided
herein, shall be secured by a lien on such Lot in favor of the Association. To evidence a lien for
sums assessed pursuant to this Article IX, the Association may prepare a written notice of lien
setting forth the amount of the Assessment, the date due, the amount remaining unpaid, the name
of the Owner of the Lot, and a description of the Lot. Each Owner shall be deemed to have
consented to the filing of a notice of lien against such Owner’s Lot. Such notice shall be signed
and acknowledged by a duly authorized officer of the Association and may be recorded in the
office of the Salt Lake County Recorder. No notice of lien shall be recorded until there is a
delinquency in payment of the assessment. Such lien may be enforced by judicial foreclosure by
the Association in the same manner in which mortgages on real property may be foreclosed in
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the State of Utah. In any such foreclosure, the Owner shall be required to pay the costs and
expenses of such proceeding, including reasonable attorneys’ fees, and such costs and expenses
shall be secured by the lien being foreclosed. The Owner shall also be required to pay to the
Association any Regular or Special Assessments against the Lot which shall become due during
the period of foreclosure. The Association shall have the right and power to bid in at any
foreclosure sale, and to own, lease, mortgage or convey the subject Lot.
9.5 Personal Obligation of Owner. Failure of the Association to give timely notice of
any Regular or Special Assessment as provided herein shall not affect the liability of the Owner
of any Lot for such Assessment. The amount of any Regular or Special Assessment against any
Lot shall be the personal obligation of the Owner of such Lot to the Association. Suit to recover
a money judgment for such personal obligation shall be maintainable by the Association without
foreclosing or waiving the lien securing the same. No Owner may avoid or diminish any such
personal obligation by waiver of the use and enjoyment of any of the Association Parcels or by
abandonment of his Lot, or by waiving any services or amenities. In the event of any suit to
recover a money judgment for unpaid assessments hereunder, the involved Owner shall pay the
costs and expenses incurred by the Association in connection therewith, including reasonable
attorney’s fees.
9.6 Statement of Account. Upon written request of any Owner, Mortgagee,
prospective Mortgagee, or prospective purchaser of a Lot and payment of any reasonable fee
assessed, the Association shall issue a written statement setting forth the following: (a) the
amount of the unpaid assessments, if any, with respect to such Lot, and (b) the amount of the
current regular assessment with respect to such Lot and the date such assessment becomes or
became due. Such statement shall be conclusive upon the Association in favor of persons who
rely thereon in good faith.
9.7 Personal Liability of a Purchaser. A purchaser of a Lot shall be jointly and
severally liable with the seller thereof for all unpaid assessments against such Lot up to the time
of the grant of conveyance; provided, however, that the provisions of this Section shall not
prejudice the purchaser’s right to recovery from the seller of the amount of such assessments
paid by the purchaser for such assessments.
9.8 Assessments Part of Maintenance Fund. All funds received from assessments
under this Article IX shall be a part of the Maintenance Fund.
9.9 Amendment of Article. Except as may be necessary to conform to the law, as it
may be amended from time to time, this Article IX shall not be amended unless the Owners of all
Lots in the Project unanimously consent and agree to such amendment by a duly recorded
instrument.
ARTICLE X
INSURANCE
10.1 Types of Insurance. The Association shall obtain and keep in full force and effect
at all times the following types of insurance coverage, provided by companies licensed to do
business in the State of Utah:
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(a) Fire and Casualty Insurance. A policy or policies of insurance on the
Association Parcels in such amounts sufficient for the complete replacement thereof in the event
of damage or destruction from casualty against which such insurance is customarily maintained
by other projects similar in construction, design, and use. Such insurance shall include fire and
extended coverage, vandalism and malicious mischief, and such other risks and hazards against
which the Association shall deem it appropriate to provide insurance protection as to the
Association Parcels. The Association may comply with the above requirements by the purchase
of blanket coverage in sufficient amounts to replace all of the improvements contained in the
Association Parcels and may elect such “deductible” provisions that in the Association’s opinion
are consistent with good business practice.
(b) Public Liability and Property Damage Insurance. The Association shall
obtain a broad form of comprehensive public liability insurance coverage for the Association
Parcels, in such amounts and in such forms as it deems advisable to provide adequate protection
against liability for personal injury, death and property damage. Coverage shall include without
limitation, liability for operation of automobiles on behalf of the Association and all activities in
connection with the ownership, operation, maintenance, and other use of the Association Parcels.
(c) Workers’ Compensation Insurance. Workers’ compensation and
employer’s liability insurance and all other similar insurance with respect to employees of the
Association, if any, in the amounts and in the forms now or hereafter required by law.
(d) Fidelity Insurance or Bond. Fidelity insurance or a bond in such amounts
and in such forms as the Association deems appropriate to cover against dishonesty of employees
or the Manager, destruction or disappearance of money or securities, and forgery.
10.2 Form of Insurance. Insurance coverage on the Association Parcels, insofar as
possible, shall be in the following form:
(a) Casualty and Flood Hazard Insurance. Casualty and hazard insurance in a
form or forms naming the Association as the insured, as trustee for the Owners and for
Declarant, whether or not Declarant is an Owner, and which policy or policies shall specify the
interest of each Owner (Owner’s name and Lot number), and shall contain a standard,
noncontributory mortgagee clause in favor of each Mortgagee which from time to time shall give
notice to the Association of its Mortgage. The Association shall furnish to each Owner, and to
each Mortgagee requesting in writing the same, a certificate of coverage, including an
identification of the Owner’s interest.
(b) Public Liability and Property Damage Insurance. Public liability and
property damage insurance which names the Association as the insured, as trustee for each
Owner, for the Manager, if any, and for Declarant, whether or not Declarant is an Owner, and
which protects each Owner, the Manager, if any, and Declarant against liability for acts or
omissions of any of them in connection with the ownership, operation, maintenance, or other use
of the Project.
10.3 Additional Coverage. The provisions of this Declaration shall not be construed to
limit the power or authority of the Association to obtain and maintain insurance coverage in
17
addition to any insurance coverage required by this Declaration in such amounts and in such
forms as the Association may from time to time deem appropriate.
10.4 Adjustment and Contribution. Exclusive authority to adjust losses under the
insurance policies hereafter in force on the Project shall be vested in the Association. In no event
shall the insurance coverage obtained and maintained by the Association hereunder be brought
into contribution with insurance purchased by individual Owners or their Mortgagees.
10.5 Insurance Carried by Owners. Each Owner is responsible for and may obtain
insurance, at his own election and expense, providing coverage upon his Lot, and all
improvements and personal property located thereon, and for general liability coverage,
including without limitation, coverage for personal injury, property damage, and such other risks
as each Owner may deem appropriate; provided that if the insurer under said policy is the insurer
under any policy issued pursuant to Section 10.1 through 10.3 above, then any insurance policy
obtained by an Owner shall provide that it does not diminish the insurance carrier’s coverage for
liability arising under any of the insurance policies obtained by the Association pursuant to this
Article. The Association shall have no obligation or responsibility to carry insurance on the
Lots, or any improvements located on the Lots.
10.6 Review of Insurance. The Association shall review annually the coverage and
policy limits of all insurance on the Project and shall adjust the same at its discretion. Such
annual review may include an appraisal of the improvements in the Project by a representative of
the insurance carrier or carriers providing the policy or policies on the Project, or such other
qualified appraisers as the Association may select.
ARTICLE XI
DAMAGE OR DESTRUCTION
11.1 Association as Attorney in Fact. All of the Owners irrevocably constitute and
appoint the Association their true and lawful attorney in fact in their name, place and stead for
the purpose of dealing with the Association Parcels of the Project upon their damage or
destruction as hereinafter provided. Acceptance by any grantee of a deed from Declarant or any
Owner shall constitute an appointment by said grantee of the Association as his attorney in fact
as herein provided. As attorney in fact, the Association shall have full and complete
authorization, right, and power to make, execute, and deliver any contract, deed or other
instrument with respect to the interest of an Owner in the Association Parcels which may be
necessary or appropriate to execute the powers herein granted.
11.2 Destruction. Upon the damage or destruction of any portion or all of the
Association Parcels, the Association shall proceed to repair and reconstruct the Association
Parcels. The Association shall use insurance proceeds from the insurance it is obligated to carry
to accomplish such repair and reconstruction. In the event insurance proceeds are insufficient to
accomplish the repair and reconstruction as required herein, then the Association shall levy a
special assessment against all Owners pursuant to the provisions of Article IX above to collect
funds necessary to accomplish such repairs and reconstruction.
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11.3 Repair or Reconstruction. As soon as practicable after receiving estimates on the
cost of repair or reconstruction, the Association shall, if repair or restoration is to occur,
diligently pursue to completion the repair or reconstruction of that part of the Association Parcels
damaged or destroyed. The Association may take all necessary or appropriate action to effect
repair or reconstruction, as attorney in fact for the Owners, and no consent or other action by any
Owner shall be necessary in connection therewith.
11.4 Disbursement of Funds for Repair or Reconstruction. If repair or reconstruction
is to occur, then the insurance proceeds held by the Association and any amounts received from
assessments shall constitute a fund for the payment of the costs of such repair and reconstruction.
It shall be deemed that the first monies disbursed in payment for the costs of such repair or
reconstruction shall be made from insurance proceeds; if there is a balance after payment of all
of the costs of such repair or reconstruction, such balance shall be distributed to the Owners
based upon their Proportionate Share.
ARTICLE XII
CONDEMNATION
12.1 Condemnation. If at any time or times all or any part of the Association Parcels
shall be taken or condemned by any public authority under power of eminent domain, the
provisions of this Article shall apply. A voluntary sale or conveyance of all or any part of the
Association Parcels in lieu of condemnation, but under threat of condemnation, shall be deemed
to be taken by power of eminent domain.
12.2 Proceeds. All compensation, damages, and other proceeds from any such taking
by power of eminent domain shall be allocated among and distributed to the Owners in
proportion to and based on the number of Lots in the Project. Such distribution shall be made by
check payable jointly to the respective Owners and their respective Mortgagees, as appropriate.
ARTICLE XIII
COMPLIANCE WITH DECLARATION AND BYLAWS
13.1 Compliance. Each Owner shall comply with the provisions of this Declaration,
the Articles of Incorporation and Bylaws of the Association, rules and regulations promulgated
by the Association, and the decisions and resolutions of the Association adopted pursuant
thereto, as the same may be lawfully amended from time to time. Failure to comply with any of
the same shall be grounds for an action to recover sums due and for damages or injunctive relief
or both, maintainable by the Association or by an aggrieved Owner.
13.2 Enforcement and Remedies. The obligations, provisions, covenants, restrictions,
easements and conditions contained in this Declaration, or in any supplemental or amended
Declaration, enforceable against the Association, shall be enforceable by Declarant or by any
Owner of a Lot, or by the RDA by a proceeding for a prohibitive or mandatory injunction. The
obligations, provisions, covenants, restrictions easements and conditions contained in this
Declaration, or in any supplemental or amended Declaration, enforceable against an Owner or
any other person, shall be enforceable by Declarant or the Association or the RDA by a
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proceeding for a prohibitive or mandatory injunction or by a suit or action to recover damages or
to recover any amount due or unpaid.
ARTICLE XIV
MORTGAGEE PROTECTION
14.1 Mortgage Protection. No breach of any of the covenants, conditions, restrictions,
and limitations contained herein shall defeat or render invalid the lien of any Mortgage made in
good faith and for value; provided, however, that all such covenants, conditions, restrictions
easements and limitations contained herein shall be binding upon an Owner whose title is
derived through foreclosure or trustee’s sale.
14.2 Priority of Liens. No enforcement of any lien provision herein contained shall
defeat or render invalid the lien of any Mortgage. All sums assessed in accordance with the
provisions herein shall constitute a lien on each respective Lot prior and superior to all other
liens except (1) all taxes, bonds, assessments and other levies which, by law, would be superior
thereto; and (2) the lien or charge of any recorded Mortgage on such Lot made in good faith and
for value and recorded prior to the date on which any such assessment or assessments become
due.
14.3 Prior Liens Relate Only to Individual Lots. All taxes, assessments and charges
which may become liens prior to the first Mortgage under local law shall relate only to the
individual Lot and not to the Project as a whole.
14.4 Mortgage Holder Rights in Event of Foreclosure. Any Mortgagee of a Mortgage
of record which obtains title to a Lot by the foreclosure of the Mortgage on the Lot or by deed or
assignment in lieu of foreclosure, or any purchaser at a foreclosure sale, shall take the Lot free of
any claims for unpaid assessments and charges against the Lot which accrued prior to the date of
the acquisition of title to such Lot by such acquirer. Any unpaid assessments shall be deemed to
be Maintenance Expenses collectible from all of the Lots in the Project, including the Lot that
has been acquired in accordance with the provisions of this Section.
14.5 Amendment. No provision of this Article XIV shall be amended without the prior
written consent of at least two-thirds of all first Mortgagees as appear on the official records of
Salt Lake County, Utah, as of the date of such amendment.
ARTICLE XV
APPROVAL OF PLANS
15.1 Approval of Plans for Alteration, Additions or Reconstruction. No construction
or exterior alterations of any Building or other improvements, including signs, may be
commenced without written approval by the Board of Trustees of the plans for such construction,
repair, replacement, reconstructing, addition or alteration. A complete set of plans for the
construction repair, replacement, reconstruction, addition, or alteration of any Building or other
Improvements must be signed by the applicant and submitted to the Board of Trustees for
review. The Board of Trustees shall either approve or disapprove plans submitted in writing
within thirty (30) days from the date on which they were received, and the failure of the Board of
Trustees to either approve or disapprove within this period shall constitute approval of said
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plans. Wherever approval in writing is required by the terms of this Declaration, such
requirement means written approval of the Board of Trustees secured in the following manner:
(a) All applications to the Board of Trustees shall be addressed as follows:
With written notice of such application to:
Garth Hare
Benchmark Modern
760 South 500 East
Salt Lake City, UT 84102-3302
or to any such address as the Board of Trustees shall hereafter designate in writing, addressed to
Owners by U.S. Mail with notice to the Redevelopment Agency of Salt Lake City at the address
set forth above.
(b) The Board of Trustees shall exercise its best judgment to see that all
Buildings and improvements, including signs constructed within the Project conform to the
purposes and requirements of this Declaration; provided, however, the Board of Trustees and its
employees or agents shall not be held liable to any Owner or to anyone submitting plans for
approval, or to any other party by reason of a mistake in judgment, negligence or non-feasance
arising out of, or in connection with the approval, disapproval or failure to approve any such
plans.
(c) Upon the approval of plans by the Board of Trustees hereunder, Owner
shall diligently proceed with the commencement and completion of all approved construction,
repair, replacement, reconstruction or addition. Unless work on the approved construction
repair, replacement, reconstruction or addition shall be commenced within one (1) year from the
date of such approval and diligently pursued thereafter, then the approval shall automatically
expire, unless the Board of Trustees has given a written extension of time.
(d) Approval of plans by the Board of Trustees may be secured prior to
acquisition of a Lot pursuant to the terms of a sales contract.
(e) The Board of Trustees and its members shall not be liable to the applicant
or to the Owner or anyone claiming by, through or under the Owner of any Lot or Building for
damages or any other remedy as the result of their actions, inactions, or approval or disapproval
of any set of plans submitted to the Board of Trustees for review. In the absence of bad faith or
malicious actions, the Owners shall have no claim against the Board of Trustees or its members
as a result of the performance or failure to perform the duties created by this Declaration. Any
persons or entities acquiring an interest in any portion of the Project shall be deemed to have
agreed and covenanted that such Owner will not bring any action or suit to recover damages
against the Board of Trustees or its members, or the advisors, officers, employees or agents of
21
any of the foregoing, as the result of the performance by the Board of Trustees of its duties and
responsibilities under this Declaration.
(f) The review by the Board of Trustees of plans submitted pursuant to this
Article XV is limited to those matters expressly described in this Declaration. The Board of
Trustees shall have no authority over the enforcement of building codes, zoning ordinances or
other statutes, laws or ordinances affecting development or improvement of the Project and shall
have no liability to any Owner or anyone claiming by, through or under such Owner whose plans
were approved in a manner that included any violation of building codes, zoning ordinances or
other statutes, laws or ordinances affecting development or improvement of the Project. The
Board of Trustees shall not be responsible for reviewing, nor shall the approval by the Board of
Trustees of any plan or design be deemed approval of, any plan or design from the standpoint of
structural safety or compliance with any applicable building codes, zoning ordinances or other
statutes, laws or ordinances affecting the development or improvement of the Project. The
structural integrity of any Building or improvement constructed within a Lot shall not be the
responsibility of the Board of Trustees. Corrections or changes to plans as may be subsequently
required to bring them into conformity with any applicable statutes, laws or ordinances must be
reviewed and approved by the Board of Trustees prior to construction.
15.2 Exterior Materials and Colors. All exterior walls of any Building or other
improvement must be finished with architectural masonry units, natural stone, precast concrete,
aluminum or glass materials, or their equivalent, along with such other architecturally and
aesthetically suitable building materials as shall be approved in writing by the Board of Trustees.
Color shall be harmonious and compatible with colors of the natural surroundings and adjacent
Buildings. Changes to the exterior paint colors of any Building, including the cedar wood siding,
must be specifically approved in writing by the Board of Trustees.
ARTICLE XVI
GENERAL PROVISIONS
16.1 Intent and Purpose. The provisions of this Declaration and any supplemental or
amended Declaration shall be liberally construed to effectuate the purpose of creating a uniform
plan for the development and operation of a planned unit development project. Failure to
enforce any provision, restriction, covenant, or condition in this Declaration, or in any
supplemental or amended Declaration, shall not operate as a waiver of any such provision,
restriction, covenant, or condition or of any other provisions, restrictions, covenants, or
conditions.
16.2 Construction. The provisions of this Declaration shall be in addition and
supplemental to all applicable provisions of law. Wherever used herein, unless the context shall
otherwise provide, the singular number shall include the plural, the plural shall include the
singular, and the use of any gender shall include all genders. The Article and Section headings
set forth herein are for convenience and reference only and are not intended to describe,
interpret, define or otherwise affect the context, meaning, or intent of this Declaration or any
Article, section or provision hereof. The provisions hereof shall be deemed independent and
severable and the invalidity or partial invalidity or unenforceability of any one provision or
portion thereof shall not affect the validity or enforceability of any other provision hereof.
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16.3 Audit. Any Owner may at any reasonable time, upon appointment and at his own
expense, cause an audit or inspection to be made of the books and records maintained by the
Association.
16.4 Amendment. Except as otherwise provided herein, this Declaration may be
amended if Owners holding at least fifty-one percent (51%) of the Total Votes of the Association
consent and agree to such amendment at a meeting of the Owners duly held in accordance with
the provisions of the Articles, Bylaws, and this Declaration, which properly approved
amendments shall be evidenced by instruments which are duly recorded in the office of the
County Recorder for Salt Lake County, State of Utah.
16.5 Effective Date. This Declaration shall take effect upon recording.
16.6 Agent for Service. The person to receive service of process for the Association
shall be the then current registered agent of the Association as shown on the records maintained
in the office of the Division of Corporations and Commercial Code of the State of Utah.
16.7 Limitation on Association’s Liability. The Association shall not be liable for any
failure of utility service to be obtained and paid for by the Association hereunder, or for injury or
damage to any person or property caused by the elements or by another Owner or person in the
Project, or resulting from electricity, water, rain, snow or ice. No diminution or abatement of
any assessments under this Declaration shall be claimed or allowed for inconvenience or
discomfort arising from the making of repairs, maintenance or improvements to the Project or
any part thereof, or from any action taken to comply with any law, ordinance or order of a
governmental authority.
16.8 Owner’s Obligations. All obligations of an Owner under and by virtue of the
provisions contained in this Declaration shall continue, notwithstanding that he may be leasing,
renting, or selling on contract his Lot. The Owner of a Lot shall have no obligation for expenses
or other obligations accruing after he conveys title to such Lot.
IN WITNESS WHEREOF, the undersigned Declarant has executed this Declaration the
day and year first above written.
DECLARANT:
Benchmark Modern, Inc.,
By:
Name:
Title:
23
STATE OF UTAH )
: ss.
COUNTY OF )
The foregoing document was acknowledged before me this ______ day of __________,
2010, by _____________________________, the ________________________________ of
, a __________________________________.
NOTARY PUBLIC
My Commission Expires: Residing at:
A-1
EXHIBIT A
TO
DECLARATION
OF COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
JEFFERSON WALKWAY
(Property Description)
The real property referenced in the Declaration as the Property is located in Salt Lake
City, Utah, as is more particularly described as follows:
PARCEL 1 LEGAL DESCRIPTION (TAX PARCEL NO. 1512254007 AND 1512254008):
LOTS 12 AND 13 OF BLOCK 2, WALKERS SUBDIVISION OF BLOCK 5, PLAT 'A' SALT LAKE
CITY SURVEY ACCORDING TO OFFICIAL PLATS THEREOF, FILED IN BOOK 'A' OF PLATS
AT PAGE 104 OF THE OFFICIAL RECORDS OF THE SALT LAKE COUNTY RECORDER BEING
MORE PARTICULARLY DESCRIBED AS:
BEGINNING AT THE NORTHWEST CORNER OF LOT 13, BLOCK 2 WALKER'S SUBDIVISION
OF BLOCK 5, PLAT 'A', SALT LAKE CITY SURVEY POINT BEING NORTH 0°01'07" WEST
460.34 FEET FROM THE BRASS CAP IN THE INTERSECTION OF 900 SOUTH AND 200 WEST;
THENCE NORTH 89°58'53" EAST 64.83 FEET TO THE POINT OF BEGINNING BEING ON THE
EAST RIGHT OF WAY LINE FOR 200 WEST STREET, THENCE NORTH 89°56'31" EAST 132.11
FEET TO THE RIGHT OF WAY OF AN ALLEY, THENCE SOUTH 00°03'20" EAST 66.04 FEET
ALONG SAID RIGHT OF WAY ALLEY, THENCE SOUTH 89°56'32" WEST 132.12 FEET TO THE
EAST RIGHT OF WAY FOR 200 WEST, THENCE ALONG SAID RIGHT OF WAY NORTH
00°02'44" WEST 66.04 FEET TO THE POINT OF BEGINNING
CONTAINS: 8,725 S.F. OR 0.20 ACRES
PARCEL 2 LEGAL DESCRIPTION (TAX PARCEL NO. 1512254026 AND 1512254027):
LOTS 30, 31 AND 32 OF BLOCK 2, WALKERS SUBDIVISION OF BLOCK 5, PLAT 'A' SALT
LAKE CITY SURVEY ACCORDING TO OFFICIAL PLATS THEREOF, FILED IN BOOK 'A' OF
PLATS AT PAGE 104 OF THE OFFICIAL RECORDS OF THE SALT LAKE COUNTY RECORDER
BEING MORE PARTICULARLY DESCRIBED AS:
BEGINNING AT THE NORTHEAST CORNER OF LOT 30, BLOCK 2, WALKER'S SUBDIVISION
OF BLOCK 5, PLAT 'A', SALT LAKE CITY SURVEY POINT BEING NORTH 00°02'23" WEST
460.24 FEET FROM THE BRASS CAP IN THE INTERSECTION OF 900 SOUTH AND JEFFERSON
STREET, THENCE SOUTH 89°57'37" WEST 35.18 FEET TO THE POINT OF BEGINNING BEING
A POINT ON THE WEST RIGHT OF WAY LINE OF JEFFERSON STREET THENCE SOUTH
0°03'57" EAST 99.06 FEET ALONG SAID RIGHT OF WAY, THENCE SOUTH 89°56'32" WEST
132.13 FEET TO THE EAST RIGHT OF WAY OF AN ALLEY, THENCE NORTH 0°03'20" WEST
99.06 FEET ALONG SAID ALLEY RIGHT OF WAY, THENCE NORTH 89°56'31" EAST 132.11
FEET TO THE POINT OF BEGINNING
CONTAINS: 13,088 S.F. OR 0.30 ACRES
B-1
EXHIBIT B
TO
DECLARATION
OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
JEFFERSON WALKWAY
(Site Plan)
C-1
EXHIBIT C
TO
DECLARATION
OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
JEFFERSON WALKWAY
(By Laws)
BYLAWS
OF
JEFFERSON WALKWAY HOME OWNERS’ ASSOCIATION, INC.
ARTICLE I
DEFINITIONS
Except as otherwise provided herein or as otherwise required by the context, all terms
defined in the Declaration of Easements, Covenants, Conditions, and Restrictions of Jefferson
Walkway Development, dated September ___, 2017, and recorded in the office of the County
Recorder of Salt Lake County, Utah on September ___, 2017, as Entry No. [NUMBER], as the
same may be amended and/or supplemented from time to time as therein provided (the
“Declaration”), shall have such defined meanings when used in these Bylaws. In the event that
any provision of these Bylaws conflicts with the Declaration, the terms of the Declaration shall
control.
ARTICLE II
OFFICES
Jefferson Walkway Home Owners’ Association, Inc. (the “Association”) may have such
other offices, within or without the State of Utah, as the Board may designate or as the business
of the Association may require from time to time.
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ARTICLE III
MEMBERS
Section 1. Annual Meetings. Each Owner of a Lot shall be a Member of the Association
as set forth in the Articles of Incorporation and the Declaration. The annual meeting of Members
of the Association shall be held each November at the time, date and place set forth in a
resolution by the Board, beginning with the year following the year in which the Articles of
Incorporation are filed, for the purpose of electing trustees to the Board (if the Members then
have responsibility for so doing) and transacting such other business as may come before the
meeting. If the election of trustees shall not be held on the day designated herein for the annual
meeting of the Members, or at any adjournment thereof, the Board shall cause the election to be
held at a special meeting of the Members to be convened as soon thereafter as may be
convenient. The Board may from time to time by resolution change the date and time for the
annual meeting of the Members.
Section 2. Special Meetings. Special meetings of the Members for any purpose or
purposes, unless otherwise prescribed by statute, may be called from time to time by the Board
or by the president, and shall be immediately called by the president upon the written request of
Members holding not less than fifty percent (50%) of the total votes of the Association, such
written request to state the purpose or purposes of the meeting and to be delivered to the Board
or the president. In case of failure to call such meeting within thirty (30) days after such request,
such Members may call the same in accordance with Utah Revised Nonprofit Corporation Act
(“Act”), Utah Code Ann. § 16-6a-702.
Section 3. Place of Meetings. The Board may designate any place in Salt Lake City in
the State of Utah, as the place of meeting for any annual meeting or for any special meeting
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called by the Board. A waiver of notice signed by all of the Members may designate any place,
within the State of Utah, as the place for holding such meeting.
Section 4. Notice of Meetings. The Board shall cause written or printed notice of the
time, place, and purpose of all meetings of the Members, whether annual or special, to be
delivered, not more than fifty (50) nor less than ten (10) days prior to the meeting, to each
Member of record entitled to vote at such meeting. If mailed, such notice shall be deemed to
have been delivered when deposited in the U.S. mail addressed to the Member at his registered
address, with first class postage thereon prepaid. Each Member shall register with the
Association such Member’s current mailing address for purposes of notice hereunder. Such
registered address may be changed from time to time by notice in writing to the Association. If
no address is registered with the Association, the Member’s Lot address shall be deemed to be
such Member’s registered address for purposes of notice hereunder.
Section 5. Fixing of Record Date. Upon purchasing a Lot, each Member shall promptly
furnish to the Association a certified copy of the recorded instrument by which ownership of
such Lot has been vested in such Member, which copy shall be maintained in the records of the
Association. For the purpose of determining Members entitled to notice of or to vote at any
meeting of the Members, or any adjournment thereof, the Board may designate a record date,
which shall not be more than fifty (50) nor less than ten (10) days prior to the meeting. If no
record date is designated, the date on which notice of the meeting is mailed shall be deemed to
be the record date for determining Members entitled to notice of or to vote at the meeting. The
persons or entities appearing in the records of the Association on such record date as the
Members of record of Lots shall be deemed to be the Members of record entitled to notice of and
to vote at the meeting of the Members and any adjournments thereof.
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Section 6. Quorum. At any meeting of the Members, the presence of Members holding,
or holders of proxies entitled to cast, four of the total votes of the Association shall constitute a
quorum for the transaction of business. In the event a quorum is not present at a meeting, the
Members present (whether represented in person or by proxy), though less than a quorum, may
adjourn the meeting to a later date. Notice thereof shall be delivered to the Members as provided
above. At the reconvened meeting, the Members and proxy holders present shall constitute a
quorum for the transaction of business even if the Members and proxy holders present are less
than fifty percent (50%) of the total votes of the Association.
Section 7. Proxies. At each meeting of the Members, each Member entitled to vote shall
be entitled to vote in person or by proxy, or by written ballot; provided, however, that the right to
vote by proxy shall exist only where the instrument authorizing such proxy to act shall have been
executed by the Member himself or by his attorney thereunto duly authorized in writing. If
ownership of a Lot is jointly held, the instrument authorizing a proxy to act must have been
executed by all owners of such Lot or their attorneys thereunto duly authorized in writing. Such
instrument authorizing a proxy to act shall be delivered in compliance with Section 16-6a-712 of
the Act prior the beginning of the meeting to the secretary of the Association or to such other
officer or person who may be acting as secretary of the meeting. The secretary of the meeting
shall enter a record of all such proxies in the minutes of the meeting.
Section 8. Votes. With respect to each matter, other than the election of trustees,
submitted to a vote of the Members, each Member entitled to vote at the meeting shall have the
right to cast, in person or by proxy or by ballot, a single vote for each Lot owned by such
Member. The affirmative vote of a majority of the votes entitled to be cast by the Members
present or represented by proxy at a meeting or by written ballot at which a quorum was initially
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present shall be necessary for the adoption of any matter voted on by the Members, unless a
greater proportion is required by the Articles of Incorporation, these Bylaws, the Declaration, or
Utah law.
Section 9. Waiver of Irregularities. All inaccuracies and irregularities in calls or notices
of meetings and in the manner of voting, form of proxies, and method of ascertaining Members
present shall be deemed waived if no objection thereto is made at the meeting.
Section 10. Informal Action by Members. Any action that is required or permitted to be
taken at a meeting of the Members may be taken without a meeting, if a consent in writing,
setting forth the action so taken, shall be signed by a majority of the Members entitled to vote
with respect to the subject matter thereof.
Section 11. Meetings by Telecommunication; Action by Written Ballot.
Notwithstanding any provision in these Bylaws to the contrary, any or all of the Members may
participate in any annual or special meeting by, or the meeting may be conducted through the use
of, any means of communication by which all persons participating in the meeting may hear each
other during the meeting. A Member participating in a meeting by a means permitted in the
foregoing sentence is considered to be present in person at the meeting. Notwithstanding any
provision in these Bylaws to the contrary, any action that may be taken at any annual or special
meeting of Members may be taken by written ballot in accordance with Section 16-6a-709 of the
Act.
ARTICLE IV
BOARD OF TRUSTEES
Section 1. General Powers. The property, affairs, and business of the Association shall
be managed by the Board. The Board may exercise all of the powers of the Association, whether
derived from law, the Articles of Incorporation, these Bylaws, or the Declaration, except those
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powers which are by law or by the foregoing documents vested solely in the Members. The
Board’s responsibilities shall, among other things, include, but shall not be limited to, the
following: (a) administration; (b) preparing and administering an operational budget; (c)
establishing and administering an adequate reserve fund; (d) scheduling and conducting the
annual meeting and other meetings of the Members; (e) collecting and enforcing the
Assessments and maintenance related charges; (f) accounting functions and maintaining records;
(h) promulgation and enforcement of the Rules; (i) maintenance of the Easement Areas; and (j)
keeping or causing to be kept sufficient books and records with a detailed account of the receipts
and expenditures affecting the Project; and (k) all other duties and responsibilities as set forth in
the declaration. The books and records shall be available for examination by all Members at
convenient hours on working days that shall be set and announced for general knowledge. All
books and records shall be kept in accordance with good accounting procedures. The Board may
by written contract delegate, in whole or in part, to a professional management organization or
person such of its duties, responsibilities, functions, and powers as are properly delegable.
Section 2. Initial Board of Trustees. The initial Board shall be composed of three (3)
trustees. The trustees specified in the Articles of Incorporation, and any replacements duly
appointed by Declarant, shall serve until the first meeting of the Members held after the
Members obtain the responsibility for electing trustees, and until their successors are duly elected
and qualified.
Section 3. Permanent Board of Trustees. After the Declarant turns over to the Members
responsibility for electing trustees, the Board shall be composed of three (3) trustees. Each
trustee shall be elected by a majority vote of the Members at a duly called meeting of the
Members.
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Section 4. Tenure. Each such trustee shall hold his or her office until the next ensuing
regular annual meeting of the Members and until his or her successor shall have been chosen and
qualified, or until his or her death, or until his or her resignation, disqualification, or removal in
the manner provided in these Bylaws, whichever first occurs.
Section 5. Qualifications. Trustees shall be Members and individuals over 18 years of
age, but do not need to be residents of Utah.
Section 6. Regular Meetings. The regular annual meeting of the Board shall be held
without other notice than these Bylaws, at the same place as the annual meeting of the Members.
The Board may provide by resolution the time and place, within the State of Utah, for the
holding of additional regular meetings without other notice than such resolution.
Section 7. Special Meetings. Special meetings of the Board may be called by or at the
request of any of the trustees. The person or persons authorized to call special meetings of the
Board may fix any place, within Salt Lake County in the State of Utah, as the place for holding
any special meeting of the Board called by such person or persons. Notice of any special
meeting shall be given at least five (5) days prior thereto by written notice delivered personally,
or mailed to each trustee at such trustee’s registered address, or by e-mail, facsimile or telegram.
If mailed, such notice shall be deemed to have been delivered when deposited in the U.S. mail so
addressed, with first class postage thereon prepaid. If notice is given by e-mail or facsimile, such
notice shall be deemed to have been delivered when the notice is received by the recipient. Any
trustee may waive notice of a meeting. The attendance of a trustee at a meeting shall constitute a
waiver of notice of such meeting, except where a trustee attends a meeting for the express
purpose of objecting to the transaction of any business because the meeting is not lawfully called
or convened. Members shall be given notice of and be entitled to attend all Board meetings.
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Section 8. Quorum and Manner of Acting. A majority of the then authorized number of
trustees shall constitute a quorum for the transaction of business at any meeting of the Board.
Except as otherwise required in these Bylaws, the Articles of Incorporation, or the Declaration,
the act of a majority of the trustees present at any meeting at which a quorum is present shall be
the act of the Board. The trustees shall act only as a board, and individual trustees shall have no
powers as such.
Section 9. Rules. By a 61% vote of the entire Board, the Board may, from time to time
and subject to the provisions of the Declaration and Article IX of these Bylaws, adopt, amend
and repeal rules and regulations to be known as Rules.
Section 10. Compensation. No trustee shall receive compensation for any services that
he or she may render to the Association as a trustee; provided, however, that a trustee may be
reimbursed for expenses incurred in performance of his or her duties as a trustee to the extent
such expenses are approved by the Board and (except as otherwise provided in these Bylaws)
may be compensated for services rendered to the Association other than in his or her capacity as
a trustee.
Section 11. Resignation and Removal. A trustee may resign at any time by delivering a
written resignation to either the president or the Board. Unless otherwise specified therein, such
resignation shall take effect upon delivery. Any trustee may be removed at any time, for or
without cause, by the fifty percent (50%) affirmative vote of the Members at a special meeting of
the Members duly called for such purpose.
Section 12. Vacancies. If vacancies shall occur in the Board by reason of the death,
resignation, or disqualification of a trustee, or if the authorized number of trustees shall be
increased, the trustees then in office shall continue to act, and such vacancies or newly created
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trusteeships shall be filled by the majority vote of the trustees then in office, though less than a
quorum, in any way approved by such trustees. Any vacancy in the Board occurring by reason
of removal of a trustee by the Members may be filled by election at the meeting at which such
trustee is removed. Any trustee elected or appointed hereunder to fill a vacancy shall serve for
the unexpired term of his predecessor or for the term of the newly created trusteeship, as the case
may be.
Section 13. Informal Action by Trustees. Any action that is required or permitted to be
taken at a meeting of the Board, may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the trustees immediately before such meeting.
ARTICLE V
OFFICERS
Section 1. Officers. The officers of the Association shall be a president, a treasurer and a
secretary, and such other officers as may from time to time be appointed by the Board and
approved by a majority of the Members. The officers may delegate, in whole or in part, to a
professional management organization or person such of their duties, responsibilities, functions,
and powers as are properly delegable.
Section 2. Election, Tenure, and Qualifications. The officers of the Association shall be
chosen by the Board annually at the regular annual meeting of the Board, and approved by the
Members at the annual meeting. In the event of failure to choose officers at such regular annual
meeting of the Board, officers may be chosen at any regular or special meeting of the Board and
approved by proxy by the Members. Each such officer (whether chosen at a regular annual
meeting of the Board or otherwise) shall hold his or her office until the next ensuing regular
annual meeting of the Board and until his or her successor shall have been chosen and qualified,
or until his or her death, or until his or her resignation, disqualification, or removal in the manner
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provided in these Bylaws, whichever first occurs. Any one person may hold any two or more of
such offices; provided, however, that the president may not also be the secretary. No person
holding two or more offices shall act in or execute any instrument in the capacity of more than
one office.
Section 3. Subordinate Officers. The Board may from time to time appoint such other
officers or agents as it may deem advisable, each of whom shall have such title, hold office for
such period, have such authority, and perform such duties as the Board may from time to time
determine, with the approval of a majority of the Members by proxy. The Board may from time
to time delegate to any officer or agent the power to appoint any such subordinate officers or
agents and to prescribe their respective titles, terms of office, authorities, and duties.
Subordinate officers need not be trustees or Members of the Association.
Section 4. Removal. Any officer may resign at any time by delivering a written
resignation to the president or to the Board. Any officer or agent may be removed by the Board
whenever in its judgment the best interests of the Association will be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not of itself create contract rights.
Section 5. Vacancies. If any vacancy shall occur in any office by reason of death,
resignation, removal, disqualification, or any other cause, or if a new office shall be created, such
vacancies or newly created offices may be filled by the Board at any regular or special meeting,
with approval by the Members by proxy or at the annual meeting of Members.
Section 6. President. The president shall be the principal executive officer of the
Association and, subject to the control of the Board, shall in general supervise and control all of
the business and affairs of the Association. The president shall, when present, preside at all
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meetings of the Members and of the Board. The president may sign, or any other proper officer
of the Association thereunto authorized by the Board, any deeds, mortgages, bonds, contracts or
other instruments which the Board has authorized to be executed, except in cases where the
signing and execution thereof shall be expressly delegated by the Board or by these Bylaws to
some other officer or agent of the Association, or shall be required by law to be otherwise signed
or executed; and in general shall perform all duties incident to the office of president and such
other duties as may be prescribed by the Board from time to time.
Section 7. Secretary. The secretary shall (a) keep the minutes of the Association and of
the Board in one or more books provided for that purpose; (b) see that all notices are duly given
in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of the
corporate records of the Association; and (d) in general perform all duties incident to the office
of secretary and such other duties as from time to time may be assigned to the secretary by the
president or by the Board, including, without limitation presiding at meetings of the Members
and of the Board in the absence of the president.
Section 8. Treasurer. The treasurer, if appointed, shall: (a) have charge and custody of
and be responsible for all funds of the Association; (b) receive and give receipt for moneys due
and payable to the Association from any source whatsoever, and deposit all such moneys in the
name of the Association in such banks, trust companies or other depositories as shall be
determined by the Board; and (c) in general perform all of the duties incident to the office of the
treasurer and such other duties as from time to time may be assigned to the treasurer by the
president or by the Board, including, without limitation presiding at meetings of the Members
and of the Board in the absence of the president..
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Section 9. Assistant Secretaries and Assistant Treasurers. The assistant secretaries and
assistant treasurers, in general, shall perform such duties as shall be assigned to them by the
secretary or the treasurer, respectively, or by the president or the Board.
ARTICLE VI
COMMITTEES
Section 1. Designation of Committees. The Board may from time to time by resolution
designate such committees as it may deem appropriate in carrying out its duties, responsibilities,
functions, and powers. No committee Member shall receive compensation for services that he
may render to the Association as a committee Member; provided, however, that a committee
Member may be reimbursed for expenses incurred in performance of his/her duties as a
committee Member to the extent that such expenses are approved by the Board and (except as
otherwise provided in these Bylaws) may be compensated for services rendered to the
Association other than in his/her capacity as a committee Member.
Section 2. Proceedings of Committees. Each committee designated hereunder by the
Board may appoint its own presiding officer and record keeper and may meet at such places and
times and upon such notice as such committee may from time to time determine. Each such
committee shall keep a record of its proceedings and shall regularly report such proceedings to
the Board.
Section 3. Quorum and Manner of Acting. At each meeting of any committee
designated hereunder by the Board, the presence of Members constituting at least a majority of
the authorized Membership of such committee (but in no event less than two Members) shall
constitute a quorum for the transaction of business, and the act of a majority of the Members
present at any meeting at which a quorum is present shall be the act of such committee. The
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Members of any committee designated by the Board hereunder shall act only as a committee, and
the individual Members thereof shall have no powers as such.
Section 4. Resignation and Removal. Any Member of any committee designated
hereunder by the Board may resign at any time by delivering a written resignation to the
president, the Board, or the presiding officer of the committee of which he is a Member. Unless
otherwise specified therein, such resignation shall take effect upon delivery. The Board may at
any time, for or without cause, remove any Member of any committee.
Section 5. Vacancies. If any vacancy shall occur in any committee designated by the
Board hereunder, due to disqualification, death, resignation, removal, or otherwise, the
remaining Members shall, until the filling of such vacancy, constitute the then total authorized
Membership of the committee and, provided that two or more Members are remaining, may
continue to act. Such vacancy may be filled at any meeting of the Board.
ARTICLE VII
INDEMNIFICATION
Section 1. Indemnification--Third-Party Actions. The Association shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative
(other than an action by or in the right of the Association) by reason of the fact that he or she is
or was a trustee or officer of the Association, against expenses (including attorneys’ fees),
judgments, fines, and amounts paid in settlement actually and reasonably incurred by such
trustee or officer in connection with such action, suit, or proceeding, if such trustee of officer
acted in good faith and in a manner such trustee or officer reasonably believed to be in or not
opposed to the best interests of the Association, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the conduct was unlawful. The termination of
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any action, suit, or proceeding by an adverse judgment, order, settlement, or conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Association or with respect to any criminal action or
proceeding, that the person had reasonable cause to believe that his conduct was unlawful.
Section 2. Indemnification--Association Actions. The Association shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending, or
completed action or suit by or in the right of the Association by reason of the fact that he or she
is or was a trustee or officer of the Association, against expenses (including attorneys’ fees)
actually and reasonably incurred by such person in connection with the defense or settlement of
such action or suit, if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Association; provided, however, that
no indemnification shall be made in respect of any claim, issue, or matter as to which such
person shall have been adjudged to be liable to the Association, unless and only to the extent that
the court in which such action or suit was brought shall determine upon application that, despite
the adjudication of liability and in view of all circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses as such court shall deem proper.
Section 3. Determination. To the extent that a person described in Sections 1 and 2 of
this Article VII has been successful on the merits or otherwise in defense of any action, suit, or
proceeding referred to in Sections 1 or 2 of Article VII hereof, or in defense of any claim, issue,
or matter therein, such person shall be indemnified against expenses (including attorneys’ fees)
actually and reasonably incurred by such person in connection therewith. Any other
indemnification under Sections 1 or 2 of Article VII hereof shall be made by the Association
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only upon a determination that indemnification of the person is proper in the circumstances
because he has met the applicable standard of conduct set forth respectively in Sections 1 or 2
hereof. Such determination shall be made in accordance with Section 16-6a-906 of the Act.
Section 4. Advances. Expenses incurred in defending a civil or criminal action, suit, or
proceeding as contemplated in this Article may be paid by the Association in advance of the final
disposition of such action, suit, or proceeding upon a majority vote of a quorum of the Board and
upon receipt of a certification from the person seeking such advance that such person meets the
standards for indemnification and receipt of an undertaking by or on behalf of the person to
repay such amount or amounts unless it ultimately be determined that such person is entitled to
be indemnified by the Association as authorized by this article or otherwise.
Section 5. Scope of Indemnification. The indemnification provided for by this Article
shall not be deemed exclusive of any other rights to which those indemnified may be entitled
under any provision in the Declaration, the Articles of Incorporation, Bylaws, agreements, vote
of disinterested Members or trustees, or otherwise, both as to action in the person’s official
capacity and as to action in another capacity while holding such office. The indemnification
authorized by this article shall apply to all present and future trustees and officers of the
Association and shall continue as to such persons who cease to be trustees, officers, employees,
or agents of the Association and shall inure to the benefit of the heirs and personal
representatives of all such persons and shall be in addition to all other rights to which such
persons may be entitled as a matter of law.
Section 6. Insurance. The Association may purchase and maintain insurance on behalf
of any person who was or is a trustee, officer, employee, or agent of the Association, or who was
or is serving at the request of the Association as a trustee, officer, employee, or agent of another
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corporation, entity, or enterprise (whether for profit or not for profit), against any liability
asserted against such person or incurred by such person in any such capacity or arising out of
his/her status as such, whether or not the Association would have the power to indemnify him
against such liability under the laws of the State of Utah, as the same may hereafter be amended
or modified.
Section 7. Payments and Premiums. All indemnification payments made, and all
insurance premiums for insurance maintained, pursuant to this article shall constitute expenses of
the Association.
ARTICLE VIII
FISCAL YEAR
This fiscal year of the Association shall begin on the 1st day of January of each year and
shall end on the 31st day of December next following; provided, however, that the first fiscal
year shall begin on the date of incorporation.
ARTICLE IX
RULES AND REGULATIONS
Section 1. Rules. By a 61% vote of the entire Board, the Board may, from time to time
and subject to the provisions of the Declaration, propose to adopt, amend and repeal rules and
regulations to be known as Rules. Since it is impossible to foresee all potential situations that
may arise within the Project, the Board has the authority to propose to adopt and modify the
Rules as needed to address new or changing circumstances. Changes to the Rules proposed by
Board shall only become effective approved by 61% of the Membership. The Rules may
restrict and govern the use of any area of the Project by any Owner or Resident, by the family of
that Owner or Resident, or by any invitee, licensee or tenant of that Owner or Resident;
provided, however, that the Rules will not discriminate among Owners or Residents and will be
consistent with the Declaration, the Articles and these Bylaws.
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Section 2. Notice. The Board will send notice to all Owners concerning any proposed
Rule change at least ten business days prior to the meeting of the Board at which such action is
to be considered. At any such meeting, Members will have a reasonable opportunity to be heard
before the proposed action is put to a vote by the Board and then by the Members.
Section 3. No Modification of Declaration. No action taken under this Article IX will
have the effect of modifying or repealing any other provision of the Declaration other than the
Rules. In the event of a conflict between the Rules and any provision of the Declaration, the
Declaration controls. Notwithstanding the foregoing, neither the Declaration nor the Rules may
limit or lessen the application or effect of any ordinance or regulation of Salt Lake City
Corporation.
Section 4. Uniformity. Except as may be set forth in the Declaration, these Bylaws or
the Articles, all Rules will comply with the following provisions: (a) similarly situated Units will
be treated similarly, however the Rules may vary by location, use or other distinct characteristics
of areas within Marmalade; (b) no rules will prohibit an Owner or occupant from displaying
political, religious or holiday symbols and decorations on his or her Lot of the kinds normally
displayed in residential Sub-Associations, nor will any Rule regulate the content of political
signs. However, the Association may adopt time, place and manner restrictions with respect to
signs, symbols and displays visible from outside structures on the Lot, including reasonable
limitations on size and number so long as such restrictions are not prohibited by applicable law.
Section 5. Household Composition. No Rule will interfere with an Owner’s freedom to
determine household composition, except that the Association may impose and enforce
reasonable occupancy limitations and conditions based on Lot size and facilities and its fair use
of the Easement Areas so long as such limitations and conditions comply with applicable law.
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Section 6. Prohibited Activities. No Rule will interfere with the activities carried on
within a Dwelling, except that the Association may prohibit activities not normally associated
with residential property. It may also restrict or prohibit activities that create monetary costs for
the Association or other Owners, that create a danger to anyone’s health or safety, that generate
excessive noise or traffic, that create unsightly conditions visible from outside the Dwelling, or
that are an unreasonable source of annoyance. The Association’s authority to impose such Rules
will in no way lessen the effect of any ordinances or regulations of the Salt Lake City
Corporation.
Section 7. Allocation of Financial Burden. No Rule will alter the allocation of financial
burdens among the various Lots or rights to use the Easement Areas to the detriment of any
Owner over that Owner’s objection expressed in writing to the Association. Subject to Salt Lake
City Ordinances, nothing in this provision will prevent the Association from changing the
Easement Areas available, from adopting generally applicable rules for use of the Easement
Areas, or from denying use privileges to those who are delinquent in paying assessments, abuse
the Easement Areas, or violate the Declaration, these Bylaws or the Articles. This provision
does not affect the right to increase the amount of Assessments.
Section 8. Leasing. No Rule will prohibit leasing or transfer of any Lot or residential
unit thereon or require approval prior to leasing or transferring any such interest; however, the
Rules may require a minimum lease term of up to 12 months.
Section 9. Easements. No Rule may unreasonably interfere with the exercise of any
easement.
The Association shall keep copies of the current Rules available to Members upon
request. The Association may charge a reasonable fee to cover its reproduction cost.
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ARTICLE X
AMENDMENTS
Except as otherwise provided by law, the Articles of Incorporation, the Declaration, or
these Bylaws, these Bylaws may be amended, modified, or repealed and new bylaws may be
made and adopted by the Members upon the affirmative vote of more than sixty six and two-
thirds percent (66.67%) of the total votes of the Association. No amendment which eliminates
the rights of the Declarant under the Declaration or these Bylaws will be effective without the
written consent of the Declarant. No amendment authorized pursuant to this Section prior to the
expiration of Declarant’s control under the Declaration, will be effective without the written
consent of the Declarant.
Adopted this ____ day of September, 2017.
By:
Print Name:
Title: Secretary
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EXHIBIT A
(Schedule of Membership Interests for Lots and Voting)
Lot Number
Membership Interest and
Assessment Allocation
Number of Votes
Lot 1 1/6th 1
Lot 2 1/6th 1
Lot 3 1/6th 1
Lot 4 1/6th 1
Lot 5
Lot 6
1/6th
1/6th
1
1
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D-1
EXHIBIT D
TO
DECLARATION
OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
JEFFERSON WALKWAY
(Voting and Parking Spaces)
Lot Number Number of Votes Designated Parking
Space #
1 1 1
2 1 2
3 1 3
4 1 4
5 1 5
6 1 6
Total Votes: __N/A
4841-9531-0670, v. 5
Page 1 of 8 pages Buyer’s Initials Date Seller’s Initials Date
NEW CONSTRUCTION REAL ESTATE PURCHASE CONTRACT
This is a legally binding Real Estate Purchase Contract (“REPC”). If you desire legal or tax advice, consult your attorney or tax advisor.
OFFER TO PURCHASE AND EARNEST MONEY DEPOSIT On this _____ day of ____________, 20____ (“Offer Reference Date”) (“Buyer”) offers to purchase from __________________________________________ (“Seller”) the Property described below and [ ] delivers to the Buyer’s Brokerage with this offer, or [ ] agrees to deliver no later than four (4) calendar days after Acceptance (as defined in Section 25), Earnest Money in the amount of $_______________ in the form of___________________________________. After Acceptance of the REPC by Buyer and Seller, and receipt of the Earnest Money by the Brokerage, the Brokerage shall have four (4) calendar days in which to deposit the Earnest Money into the Brokerage Real Estate Trust Account. Buyer’s Brokerage _________________________________________ Phone: __________________________________
Received by: on (Date) (Signature above acknowledges receipt of Earnest Money)
OTHER PROVISIONS
1. PROPERTY: 1.1 Location. The Earnest Money Deposit is given to secure and apply on the purchase of a new Residence (the "Residence”) described below to be constructed by Seller on a parcel of real property (the "Lot") located at:____________ , in the City of County of , State of Utah, more particularly described as Lot No. in the Subdivision/Development, or alternatively as follows: (collectively referred to hereinafter as the “Property”).The Purchase Price for the Property [ ] INCLUDES [ ] DOES NOT INCLUDE, the Lot. 1.2 Home Design. Seller shall construct the Residence and related improvements described as the [ ] ____________________ model house plan; or [ ] custom design, in accordance with the Plans & Specifications as provided in Section 7(g) and 9.1 below, and any applicable plans, CC&Rs, and declaration of condominium. 1.3 Improvements. Seller represents that the Property will be connected to the utility service lines and serviced by the additional improvements identified below. (check applicable boxes): (a) Utility Services [ ] well [ ] public water [ ] private water [ ] natural gas [ ] propane [ ] electricity [ ] telephone [ ] cable [ ] public sewer [ ] septic tank [ ] other (specify) (b) Additional Improvements [ ] dedicated paved road [ ] private paved road [ ] other road (specify) [ ] curb & gutter [ ] rolled curb [ ] sidewalk [ ] other (specify) 1.4 Permit Fees. Seller agrees to pay for building permit fees, impact fees, landscape bonds, and all connection fees except for the following: _________________________________________________________________________. 1.5 Water Service. The Purchase Price for the Property shall include all water rights/water shares, if any, that are the legal source of Seller’s current culinary water service and irrigation water service, if any, to the Property. The water rights/water shares will be conveyed or otherwise transferred to Buyer at Closing by applicable deed or legal instruments. The following water rights/water shares, if applicable, are specifically excluded from this sale: ______________________ _________________________________________________________________________________________________ 1.6 Survey. Seller shall ensure that the Lot corners have been staked by a licensed surveyor and that upon Substantial Completion of the Residence as defined in Section 12.2 below, the stakes are still in place. Any additional survey work shall be at the option of Buyer and shall be paid for by Buyer. 2. PURCHASE PRICE. The Purchase Price for the Property is $ ____________________. Except as provided in this Section, the Purchase Price shall be paid as provided in Sections 2.1(a) through 2.1(d) below. Any amounts shown in 2.1(c) and 2.1(d) may be adjusted as deemed necessary by Buyer and Buyer’s Lender (the “Lender”).
Benchmark Modern Inc.
Salt Lake City Salt Lake6 Jefferson Walkway
Walker
NA
Alley access
Page 2 of 8 pages Buyer’s Initials __________Date Seller’s Initials Date
2.1 Method of Payment. The Purchase Price will be paid as follows: $ (a) Earnest Money Deposit. Under certain conditions described in the REPC, this deposit may
become non-refundable. $____________ (b) Construction Deposit. This amount shall be due and shall become NON-REFUNDABLE to Buyer
as provided in Section 2.2 below. $ (c) Permanent Loan. Buyer agrees to apply for a “Permanent Loan” on terms acceptable to Buyer
as provided in Section 8.2(c) below. If an FHA/VA loan applies, see attached FHA/VA Loan Addendum.
$ (d) Balance of Purchase Price in Cash at Settlement. $ PURCHASE PRICE. Total of lines (a) through (d). The Purchase Price may be increased if additional costs are incurred for any Change Orders as provided in Section 9.3. Such Change Orders shall be paid for as provided in Section 9.3. 2.2 Construction Deposit. (a) Delivery of Construction Deposit. Provided Buyer has not cancelled the REPC pursuant to Section 8.1(b) below, then no later than the Pre-Construction Meeting, referenced in Section 9.2, or as otherwise agreed to in writing by Buyer and Seller, Buyer [ ] WILL [ ] WILL NOT deliver directly to the Seller a Construction Deposit. Seller may only use the Construction Deposit for the purpose of constructing the Residence and/or purchase of the Lot. The Earnest Money Deposit and Construction Deposit, if applicable, shall be credited toward the Purchase Price at Settlement as defined in Section 3.1 below. (b) Non-Refundable Construction Deposit. Except as provided in Section 8, Buyer acknowledges that upon delivery of the Construction Deposit to the Seller, the Construction Deposit shall be NON-REFUNDABLE to Buyer unless Seller fails to close the transaction in accordance with the terms of the REPC. In such event, the remedies set forth in Section 17.2 shall apply. 3. SETTLEMENT AND CLOSING. 3.1 Settlement. Settlement shall take place no later than the Settlement Deadline referenced in Section 24(f), or as otherwise mutually agreed by Buyer and Seller in writing. “Settlement" shall occur only when all of the following have been completed: (a) Buyer and Seller have signed and delivered to each other or to the escrow/closing office all documents required by the REPC, by the Lender, by the title insurance and escrow/closing offices, by written escrow instructions (including any split closing instructions, if applicable), or by applicable law; (b) any monies required to be paid by Buyer or Seller under these documents (except for the proceeds of any Permanent Loan) have been delivered by Buyer or Seller to the other party, or to the escrow/closing office, in the form of cash, wire transfer, cashier’s check, or other form acceptable to the escrow/closing office. 3.2 Prorations. All prorations, including, but not limited to, homeowner’s association dues, property taxes for the current year, rents, and interest on assumed obligations, if any, shall be made as of the Settlement Deadline referenced in Section 24(f), unless otherwise agreed to in writing by the Buyer and Seller. Such writing could include the settlement statement. The provisions of this Section 3.2 shall survive Closing. 3.3 Special Assessments. Any assessments for capital improvements as approved by the HOA (pursuant to HOA governing documents) or as assessed by a municipality or special improvement district, prior to the Settlement Deadline shall be paid for by: [ ] Seller [ ] Buyer [ ] Split Equally Between Buyer and Seller [ ] Other (explain) ____ _____ . The provisions of this Section 3.3 shall survive Closing. 3.4 Fees/Costs/Payment Obligations. Unless otherwise agreed to in writing, Buyer and Seller shall each pay their respective fees charged by the escrow/closing office for its services in the settlement/closing process. Buyer agrees to be responsible for homeowners’ association and private and public utility service transfer fees, if any, and all utilities and other services provided to the Property after the Settlement Deadline. Utility service connection and hook-up fees shall however, be paid by Seller as provided in Section 1.4. The escrow/closing office is authorized and directed to withhold from Seller’s proceeds at Closing, sufficient funds to pay off on Seller’s behalf all mortgages, trust deeds, judgments, mechanic's liens, tax liens and warrants. The provisions of this Section 3.4 shall survive Closing. 3.5 Closing. For purposes of the REPC, “Closing” means that: (a) Settlement has been completed; (b) the proceeds of any new loan have been delivered by the Lender to Seller or to the escrow/closing office; and (c) the applicable Closing documents have been recorded in the office of the county recorder. The actions described in 3.5 (b) and (c) shall be completed within four calendar days after Settlement. 4. POSSESSION. Unless otherwise agreed to in writing, Seller shall deliver physical possession to Buyer upon Closing.
N/A
Page 3 of 8 pages Buyer’s Initials __________Date Seller’s Initials Date
5. CONFIRMATION OF AGENCY DISCLOSURE. Buyer and Seller acknowledge prior written receipt of agency disclosure provided by their respective agent that has disclosed the agency relationships confirmed below. At the signing of the REPC:
Seller’s Agent , represents [ ] Seller [ ] both Buyer and Seller as a Limited Agent;
Seller’s Brokerage , represents [ ] Seller [ ] both Buyer and Seller as a Limited Agent;
Buyer’s Agent , represents [ ] Buyer [ ] both Buyer and Seller as a Limited Agent;
Buyer’s Brokerage , represents [ ] Buyer [ ] both Buyer and Seller as a Limited Agent.
6. TITLE / TITLE INSURANCE / LIENS. 6.1 Title to Property. Seller represents that Seller has fee title to the Property and will convey marketable title to the Property to Buyer at Closing by general warranty deed unless otherwise agreed to in writing by Buyer and Seller. The Property will be delivered to Buyer at Closing, free and clear of mechanic’s liens and claims for mechanic’s liens. Buyer does agree to accept title to the Property subject to the contents of the Commitment for Title Insurance (the “Commitment”) provided by Seller under Section 7(b), and as reviewed and approved by Buyer under Section 8.1(a). The provisions of this Section 6.1 shall survive Closing. 6.2 Title Insurance & Additional Coverage. At Settlement, Seller agrees to pay for and cause to be issued in favor of Buyer, through the title insurance agency that issued the Commitment (the “Issuing Agent”), the most current version of the ALTA Homeowner’s Policy of Title Insurance (the “Homeowner’s Policy”). If the Homeowner’s Policy is not available through the Issuing Agent, Buyer and Seller further agree as follows: (a) Seller agrees to pay for the Homeowner’s Policy if available through any other title insurance agency selected by Buyer; (b) if the Homeowner’s Policy is not available either through the Issuing Agent or any other title insurance agency, then the Seller agrees to pay for, and Buyer agrees to accept, the most current available version of an ALTA Owner’s Policy of Title Insurance (“Standard Coverage Owner’s Policy”) available through the Issuing Agent. 6.3 Protection Against Liens and Civil Action. Notice is hereby provided in accordance with the Residence Lien Restriction and Lien Recovery Fund Act of the Utah Code that an "owner" may be protected against liens being maintained against an "owner- occupied residence" and from other civil action being maintained to recover monies owed for "qualified services" performed or provided by suppliers and subcontractors as a part of this contract, if either section (1) or (2) is met: (1)(a) the owner entered into a written contract with an original contractor, a factory built housing retailer, or a real estate developer; (b) the original contractor was properly licensed or exempt from licensure under Utah Construction Trades Licensing Act at the time the contract was executed; and (c) the owner paid in full the contracting entity in accordance with the written contract and any written or oral amendments to the contract; or (2) the amount of the general contract between the owner and the original contractor totals no more than $5,000. (3) An owner who can establish compliance with either section (1) or (2) may perfect the owner's protection by applying for a Certificate of Compliance with the Division of Occupational and Professional Licensing. 7. SELLER DISCLOSURES. No later than the Seller Disclosure Deadline referenced in Section 24(a), Seller shall provide to Buyer the following documents which are collectively referred to as the "Seller Disclosures":
(a) A Seller property condition disclosure form for the Lot and any improvements; (b) A Commitment for the policy of title insurance as referenced in Sections 6.1 and 6.2; (c) A copy of the recorded CC&R's, rules and regulations affecting the Property, and a copy of the recorded Plat for the Development, if any; (d) A copy of the most recent minutes, budget and financial statement for the homeowners’ association, if any; (e) Written notice of any claims and/or conditions known to Seller relating to environmental, soil stability, drainage or other problems or other known defects in the Property that materially affect its value that cannot be discovered by a reasonable inspection by an ordinary prudent Buyer; (f) Evidence of any water rights and/or water shares referenced in Section 1.5; (g) Plans & Specifications for the Residence, or reduction copies thereof as defined in Section 9.1; (h) Name of contractor and contractor’s license number; (i) If applicable and pursuant to 16 C.F.R., part 460 the type, thickness, and R-value of the insulation that will be installed in each part of the house. (j) Builder’s Warranty (if different from Section 11); and (k) Other (specify)
Melanie Borgenicht
Coldwell Banker
Page 4 of 7 pages Seller’s Initials Date Buyer’s Initials Date
8. BUYER'S CONDITIONS OF PURCHASE. 8.1 DUE DILIGENCE CONDITION. Buyer’s obligation to purchase the Property IS conditioned upon Buyer's satisfactory completion of Buyer’s Due Diligence as defined in this Section 8.1 inclusive below. This condition is referred to as the “Due Diligence Condition.” All of Buyer’s Due Diligence shall be completed on or before the Due Diligence Deadline referenced in Section 24(b). Buyer's Due Diligence shall be paid for by Buyer and shall be conducted by individuals or entities of Buyer's choice. Seller agrees to cooperate with Buyer’s Due Diligence. Buyer agrees to pay for any damage to the Property resulting from any inspections or tests during the Due Diligence. (a) Due Diligence Items. Buyer’s Due Diligence shall consist of the following: (i) Buyer’s review and approval of the Seller Disclosures referenced in Section 7 above, and (ii) Any other tests, evaluations and verifications of the Property deemed necessary or appropriate by Buyer, such as: environmental issues or geologic conditions; setback requirements, utility easements, the costs and availability of homeowners’ insurance and flood insurance, if applicable; water source, availability and quality; the location of property lines; regulatory use restrictions or violations; fees for services such as HOA dues, municipal services, and utility costs; convicted sex offenders residing in proximity to the Property; and any other matters deemed material to Buyer in making a decision to purchase the Property. (b) Right to Cancel or Waive Due Diligence Condition. Buyer shall have the right to cancel the REPC or waive the Due Diligence Condition as provided below. (i) Buyer’s Right to Cancel or Resolve Objections. If Buyer, in Buyer’s sole discretion, determines that the results of Buyer's Due Diligence are unacceptable, Buyer may either: (A) no later than the Due Diligence Deadline referenced in Section 24(b), cancel the REPC by providing written notice to Seller, whereupon the Earnest Money Deposit and the Construction Deposit, if applicable, shall be released to Buyer without the requirement of further written authorization from Seller; or (B) no later than the Due Diligence Deadline referenced in Section 24(b), resolve in writing with Seller any objections Buyer has arising from Buyer’s Due Diligence. (ii) Failure to Cancel or Resolve Objections. If Buyer fails to cancel the REPC or fails to resolve in writing any objections Buyer has arising from Buyer’s Due Diligence, as provided in Section 8.1(b)(i), Buyer shall be deemed to have waived the Due Diligence Condition. 8.2 FINANCING CONDITION (check applicable boxes): (a) Construction Loan. The obligations of the parties under the REPC [ ] ARE [ ] ARE NOT conditioned upon [ ] Buyer [ ] Seller obtaining a “Construction Loan” in the amount sufficient to construct the Residence. (b) Failure to Obtain Construction Loan. Whether the Construction Loan is being obtained by Buyer or Seller, if the proceeds of that loan are not available for disbursement by the Construction Loan Funding Deadline referenced in Section 24(d), Buyer or Seller may cancel this REPC by providing written notice to the other party no later than four (4) days after the Construction Loan Funding Deadline; whereupon the Earnest Money Deposit and the Construction Deposit, if applicable, shall be released to Buyer without the requirement of further written authorization from Seller. (c) Permanent Loan. Buyer’s obligation to purchase the Property [ ] IS [ ] IS NOT conditioned upon Buyer obtaining the Permanent Loan as referenced in Section 2.1(c) above. (d) Cash Purchase/Proof of Funds. If Buyer’s obligation to purchase the Property IS NOT conditioned upon Buyer qualifying for the Construction Loan and/or the Permanent Loan as referenced in 8.2 (a) and (c) above (the “Applicable Loans”), Section 8.3 below shall not apply. If Buyer is paying cash, then no later than the Due Diligence Deadline referenced in Section 24(b), Buyer shall provide to Seller a current financial statement (“Proof of Funds”), evidencing Buyer’s financial ability to close the purchase of the Property. If Seller, in Seller’s sole discretion, is not satisfied with the Proof of Funds provided by Buyer, Seller may cancel the REPC by providing written notice to Buyer no later than seven (7) days after the Due Diligence Deadline. In such event, the Earnest Money Deposit, and Construction Deposit, if applicable, shall be released to Buyer without the requirement of further written authorization from Seller, and neither party shall have any further rights or obligations to each other under the REPC or otherwise. If Seller does not cancel the REPC as provided in this Section 8.2(d), Seller shall be deemed to have waived any objection to Buyer’s Proof of Funds. 8.3 APPLICATION FOR LOAN.
(a) Preferred Lender. Buyer shall obtain a “Pre-Qualification Letter” from _________________________ (the “Preferred Lender”). Notwithstanding the requirement for Buyer to obtain a Pre-Qualification Letter from the Preferred Lender, Buyer is not required to obtain a loan from the Preferred Lender and may additionally apply for and obtain a loan from any mortgage lender of Buyer’s choosing (the “Alternate Lender”). (b) Application. No later than seven (7) days after Acceptance of the REPC by Buyer and Seller as defined in Section 25 below, Buyer shall apply for any applicable loans from the Preferred Lender and, if applicable, the Alternate Lender in order to obtain a Pre-Qualification Letter. Buyer shall pay all loan application fees as required by the Preferred Lender. Buyer will promptly provide any documentation required by the Preferred Lender. (c) Pre-Qualification Letter. No later than the Due Diligence Deadline referenced in Section 24(b), Buyer agrees to provide to Seller a Pre-Qualification Letter from the Preferred Lender and, if applicable, the Alternate Lender. Buyer agrees to diligently work to obtain the Pre-Qualification Letter.
Page 5 of 8 pages Buyer’s Initials _______________Date Seller’s Initials ________________Date
(d) Right to Cancel. If the Preferred Lender or, if applicable, the Alternate Lender fails to provide Buyer with a Pre-Qualification Letter, or if the Pre-Qualification Letter contains conditions unacceptable to the Buyer or Seller, Buyer or Seller may cancel the REPC by providing written notice to the other party no later than four (4) days after the Due Diligence Deadline; whereupon the Earnest Money and Construction Deposit, if applicable, shall be released to Buyer without the requirement of further written authorization from Seller. If the REPC is not canceled as provided in this Section 8.3(d), Buyer and Seller shall be deemed to have waived any objections regarding the lack of, or any conditions contained in the Pre-Qualification Letter. 8.4 FAILURE TO OBTAIN PERMANENT LOAN. (a) Failure to Obtain Permanent Loan. If after expiration of the Settlement Deadline referenced in Section 24(f), Buyer fails to obtain the Permanent Loan, meaning that the proceeds of the Permanent Loan have not been delivered by the Lender to Seller or to the escrow/closing office as required under Section 3.5 of the REPC, then Buyer or Seller may cancel the REPC by providing written notice to the other party; whereupon the Earnest Money Deposit and the Construction Deposit if applicable, shall be retained by the Seller. (b) Seller’s Exclusive Remedy. In the event of a cancellation based on the Buyer’s failure to obtain a permanent loan as described in Section 8.4(a), Seller agrees to accept as Seller’s exclusive remedy, the Earnest Money Deposit and the Construction Deposit, if applicable, as liquidated damages. Buyer and Seller agree that liquidated damages would be difficult and impractical to calculate, and the Earnest Money Deposit and the Construction Deposit, if applicable, is a fair and reasonable estimate of Seller’s damages in the event Buyer fails to obtain the Permanent Loan. 9. PLANS & SPECIFICATIONS / PRE-CONSTRUCTION MEETING. 9.1 Plans & Specifications. The Plans & Specifications contain descriptions of the type of materials to be used in finishing the Residence, a dollar allowance for specific items, and copies of the floor plans and elevations for the Residence and any Change Orders as described below. Buyer's selection of color, grade and type of finishing materials (including appliances, floor coverings, fixtures, cabinets, etc.) may differ from the Plans & Specifications, and may change the Substantial Completion Deadline and the Purchase Price. Seller agrees to construct the Residence in substantial compliance with the Plans & Specification and to place the Residence within the approved building area on the Lot as permitted by the local municipal authority. Buyer acknowledges that the Residence, upon Substantial Completion, may vary from the exact dimensions shown on the Plans & Specifications. 9.2 Pre-Construction Meeting. Prior to the Pre-Construction Meeting Deadline, Buyer and Seller shall meet to review the Plans & Specifications and plot plan, and sign a Change Order Addendum which itemizes and identifies any changes to the Plans & Specifications for the Residence. Any payments and/or fees as required by the REPC and any Change Order Addenda shall be paid in full at the conclusion of the Pre-Construction Meeting, unless a separate payment schedule is otherwise agreed to in writing by Buyer and Seller. To the extent that a choice of color, grade, or type of material is still required after the Pre-Construction Meeting, Buyer shall notify Seller in writing of such selections no later than [ ] 10 days, or [ ] ___ days after receipt of Seller's written request for such selections. If Buyer has not notified Seller in writing of such selections, Seller shall have the right to make said selections, at Seller's sole discretion, to avoid delay in Substantial Completion of the Residence. 9.3 Change Orders. No change will be made to the Plans & Specifications except by a written Change Order Addendum signed in advance by Buyer and Seller. Any Change Order Addendum shall set forth: (a) the changes to be made; (b) any adjustment in the Purchase Price; and (c) any change in the Substantial Completion Deadline. Payments made by Buyer to Seller for any Change Orders may only be used for construction of the Residence. Buyer understands that any Change Orders requested may affect the appraised value of the Residence and the terms and conditions of available financing. 10. ADDITIONAL TERMS. There [ ] ARE [ ] ARE NOT addenda to the REPC containing additional terms. If there are, the terms of the following addenda are incorporated into the REPC by this reference: [ ] Addendum No. [ ] FHA/VA Loan Addendum [ ] Plans and Specifications [ ] Change Order Addendum No. ____ [ ] Other (specify) 11. SELLER WARRANTIES. Unless Seller is providing an alternate Builder’s Warranty under Section 7(j) (in which case this Section 11 shall not apply) Seller DOES warrant the heating, cooling, electrical, plumbing and landscape sprinkler systems (including all gas and electric appliances), fixtures, and structural elements of the Residence (including the roof, walls, and foundation) against defects in material and workmanship for a period of one year after the Settlement Deadline. Seller further warrants that as of the date Seller delivers possession of the Residence to Buyer, any private well or septic tank serving the Residence shall have applicable permits and shall be in working order and fit for its intended purpose. The provisions of this Section 11 shall survive Closing.
0
ONE
Page 6 of 8 pages Buyer’s Initials _______________Date Seller’s Initials ________________Date
12. WALK-THROUGH INSPECTION / SUBSTANTIAL COMPLETION / CONSTRUCTION COMPLIANCE 12.1 Walk-Through Inspection. Not less than [ ] 7 DAYS [ ] ____ DAYS prior to Settlement, Buyer may conduct a "walk-through" inspection of the Residence. If, as of Settlement, minor work remains to be completed, corrected or replaced on the Residence, then Buyer, pending completion of such work, may withhold in escrow at Settlement, a reasonable amount agreed to by Seller, Buyer and mortgage lenders , if applicable, sufficient to pay for completion of such work. If such work is not completed within [ ] 30 DAYS [ ] DAYS after Settlement, the amount so escrowed may, at Buyer's option, be released to Buyer as liquidated and agreed damages for failure to complete. The failure of Buyer to conduct a walk-through inspection prior to Settlement shall not constitute a waiver by Buyer of the right to receive on the date of possession, the Property as required under the REPC. 12.2 Substantial Completion. The Residence shall be considered "Substantially Complete" when occupancy of the Residence is allowable under the rules, ordinances and laws of the appropriate civil jurisdiction in which the Residence is located. In the absence of such governmental regulations, Substantial Completion shall be when the Residence is ready for occupancy and only minor work remains to be completed, corrected or replaced. Subject to the exceptions referenced in Section 13, the Substantial Completion Deadline shall be as referenced in Section 24(e). Seller shall provide Buyer written notice of Substantial Completion of the Residence. Change Orders may extend the Substantial Completion Deadline. 12.3 Construction Access. Buyer agrees that during the period of construction Seller shall have the unrestricted right to access the Property for the purpose of construction of the Residence and any necessary subdivision improvements if applicable. Buyer shall have the right to reasonable inspection of the Property. However, Seller reserves the right to limit Buyer's inspection of the Property in order to not hinder, interfere, or delay the work. Buyer assumes all risks and liability associated with all such inspections. 12.4 Construction Compliance. Construction of the Residence shall be in accordance with the standards and requirements of all applicable Federal, State, and Local governmental laws, ordinances and regulations, and in compliance with restrictive covenants applicable to the Lot. The Residence shall be correctly situated on the Lot. Construction shall also be done in accordance with the site plan as previously agreed to by Seller and Buyer. 12.5. Regulatory Changes. If any regulatory requirements for construction of the Residence change during the course of construction and result in an increase in the costs of labor and/or materials, the Seller reserves the right to adjust the Purchase Price for the Property to correspond with such regulatory changes. In such event, the Seller shall provide the Buyer with a specific description of the regulatory change(s) and an itemization of the costs incurred to comply with the change(s). 13. UNAVOIDABLE DELAY. In the event the Residence is not Substantially Complete by the Substantial Completion Deadline as referenced in Section 24(e) due to interruption of transport, availability of materials, strikes, fire, flood, weather, governmental regulations, acts of God, or similar occurrences beyond the control of the Seller, the Substantial Completion Deadline shall be extended for a reasonable period based on the nature of the delay. In such event, the Seller shall notify the Buyer of the delay. 14. AUTHORITY OF SIGNERS. If Buyer or Seller is a corporation, partnership, trust, estate, limited liability company, or other entity, the person executing the REPC on its behalf warrants his or her authority to do so and to bind Buyer and Seller. 15. COMPLETE CONTRACT. The REPC together with its addenda, any attached exhibits, and Seller Disclosures, constitutes the entire contract between the parties and supersedes and replaces any and all prior negotiations, representations, warranties, understandings or contracts between the parties. The REPC cannot be changed except by written agreement of the parties. 16. MEDIATION. Any dispute relating to the REPC arising prior to or after Closing: [ ] SHALL [ ] MAY AT THE OPTION OF THE PARTIES first be submitted to mediation. Mediation is a process in which the parties meet with an impartial person who helps to resolve the dispute informally and confidentially. Mediators cannot impose binding decisions. The parties to the dispute must agree before any settlement is binding. The parties will jointly appoint an acceptable mediator and share equally in the cost of such mediation. If mediation fails, the other procedures and remedies available under the REPC shall apply. Nothing in this Section 16 prohibits any party from seeking emergency legal or equitable relief, pending mediation. The provisions of this Section 16 shall survive Closing. 17. DEFAULT. 17.1 Buyer Default. If Buyer defaults, Seller may elect one of the following remedies: (a) cancel the REPC and retain the Earnest Money Deposit and the Construction Deposit, if applicable, as liquidated damages; (b) maintain the Earnest Money Deposit in trust, retain the Construction Deposit if applicable, and sue Buyer to specifically enforce the REPC; or (c) return the Earnest Money Deposit to Buyer, retain the Construction Deposit and pursue any other remedies available at law.
4
Page 7 of 8 pages Buyer’s Initials _______________Date Seller’s Initials ________________Date
17.2 Seller Default. If Seller defaults, Buyer may elect one of the following remedies: (a) cancel the REPC, and in addition to the return of the Earnest Money Deposit and the Construction Deposit if applicable, Buyer may elect to accept from Seller, as liquidated damages, a sum equal to the Earnest Money Deposit; or (b) maintain the Earnest Money Deposit in trust and sue Seller to specifically enforce the REPC; or (c) accept a return of the Earnest Money Deposit and Construction Deposit, if applicable, and pursue any other remedies available at law. If Buyer elects to accept liquidated damages, Seller agrees to pay the liquidated damages to Buyer upon demand. 18. ATTORNEY FEES AND COSTS/GOVERNING LAW. In the event of litigation or binding arbitration to enforce the REPC, the prevailing party shall be entitled to costs and reasonable attorney fees incurred in the litigation and/or arbitration. However, attorney fees shall not be awarded for participation in mediation under Section 16. The REPC shall be governed by and construed in accordance with the laws of the State of Utah. The provisions of this Section 18 shall survive Closing. 19. NOTICES. Except as provided in Section 25, all notices required under the REPC must be: (a) in writing; (b) signed by the Buyer or Seller giving notice; and (c) received by the Buyer or the Seller, or their respective agent, or by the brokerage firm representing the Buyer or Seller, no later than the applicable date referenced in the REPC. 20. NO ASSIGNMENT. The REPC and the rights and obligations of Buyer and Seller hereunder, are personal to Buyer and Seller. The REPC may not be assigned by Buyer or Seller without the prior written consent of the other party. Provided, however, the transfer of Buyer’s interest in the REPC to any business entity in which Buyer holds a legal interest, including, but not limited to, a family partnership, family trust, limited liability company, partnership, or corporation (collectively referred to as a “Permissible Transfer”), shall not be treated as an assignment by Buyer that requires Seller’s prior written consent. Furthermore, the inclusion of “and/or assigns” or similar language on the line identifying Buyer on the first page of the REPC shall constitute Seller’s written consent only to a Permissible Transfer. 21. INSURANCE & RISK OF LOSS 21.1 INSURANCE. During the period of construction and until Closing, the Seller shall maintain in full force and effect, at the Seller's expense, a builders risk insurance policy for the full replacement value of all completed portions of improvements included in the Residence; and all construction materials located on-site; workmen's compensation insurance in accordance with Utah law, and public general liability insurance in an amount not less than [ ] $1,000,000 [ ] $____________. 21.2 RISK OF LOSS. All risk of loss to the Residence, including physical damage or destruction to the Property or its improvements due to any cause, except loss caused by a taking in eminent domain, shall be borne by Seller until the transaction is closed. 22. TIME IS OF THE ESSENCE. Time is of the essence regarding the dates set forth in the REPC. Extensions must be agreed to in writing by all parties. Unless otherwise explicitly stated in the REPC: (a) performance under each Section of the REPC which references a date shall absolutely be required by 5:00 PM Mountain Time on the stated date; and (b) the term "days" and “calendar days” shall mean calendar days and shall be counted beginning on the day following the event which triggers the timing requirement (e.g. Acceptance). Performance dates and times referenced herein shall not be binding upon title companies, lenders, appraisers and others not parties to the REPC, except as otherwise agreed to in writing by such non-party. 23. ELECTRONIC TRANSMISSION AND COUNTERPARTS. Electronic transmission (including email and fax) of a signed copy of the REPC, any addenda and counteroffers, and the retransmission of any signed electronic transmission shall be the same as delivery of an original. The REPC and any addenda and counteroffers may be executed in counterparts. 24. CONTRACT DEADLINES. Buyer and Seller agree that the following deadlines shall apply to the REPC: (a) Seller Disclosure Deadline (Date) (b) Due Diligence Deadline (Date) (c) Pre-Construction Meeting Deadline ____________________________________________________ (Date) (d) Construction Loan Funding Deadline (Date) (e) Substantial Completion Deadline (Date) (f) Settlement Deadline days after the Buyer's receipt of written Notice of Substantial Completion
2,000,000
N/A
N/A
FIVE
Page 8 of 8 pages
25. ACCEPTANCE. "Acceptance" occurs only when all of the following have occurred: (a) Seller or Buyer has signed the offer or counteroffer where noted to indicate acceptance; and (b) Seller or Buyer or their agent has communicated to the other party or to the other party’s agent that the offer or counteroffer has been signed as required. 26. OFFER AND TIME FOR ACCEPTANCE. Buyer offers to purchase the Property on the above terms and conditions. If Seller does not accept this offer by: [ ] AM [ ] PM Mountain Time on (Date), this offer shall lapse; and the Brokerage shall return the Earnest Money Deposit to Buyer. (Buyer’s Signature) (Offer Date) (Buyer’s Signature) (Offer Date) (Buyer’s Names) (PLEASE PRINT) (Notice Address) (Zip Code) (Phone) (Buyer’s Names) (PLEASE PRINT) (Notice Address) (Zip Code) (Phone) ACCEPTANCE/COUNTEROFFER/REJECTION CHECK ONE: [ ] ACCEPTANCE OF OFFER TO PURCHASE: Seller Accepts the foregoing offer on the terms and conditions
specified above. [ ] COUNTEROFFER: Seller presents for Buyer’s Acceptance the terms of Buyer’s offer subject to the exceptions or
modifications as specified in the attached ADDENDUM NO. . [ ] REJECTION: Seller rejects the foregoing offer. (Seller’s Signature) (Date) (Time) (Seller’s Signature) (Date)(Time) (Seller’s Names) (PLEASE PRINT) (Notice Address) (Zip Code) (Phone) (Seller’s Names) (PLEASE PRINT) (Notice Address) (Zip Code) (Phone)
This form is COPYRIGHTED by the UTAH ASSOCIATION OF REALTORS® for use solely by its members. Any unauthorized use, modification, copying or distribution without written consent is prohibited. NO REPRESENTATION IS MADE AS TO THE LEGAL VALIDITY OR ADEQUACY OF ANY PROVISION OF THIS FORM IN ANY SPECIFIC TRANSACTION. IF YOU DESIRE SPECIFIC LEGAL OR TAX ADVICE, CONSULT AN APPROPRIATE PROFESSIONAL.
COPYRIGHT© UTAH ASSOCIATION OF REALTORS® 2.26.14 – ALL RIGHTS RESERVED UAR FORM 4A
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PREFERRED LENDER INCENTIVES: ** No origination fee ** No processing fee ** Waived appraisal fee ** Closing in 21 days (assuming documentation provided by borrower in a timely manner) ** Minimum down payment would be dependent on purchase price. The conforming loan limit is currently $424,100 and would allow for 5% down payment. A loan amount above $424,100 would be high balance conforming and require 10% down payment.
Jennifer Berard
Owner/Principal Lending Manager Mortgage America, LC PH: 801/364-5100 FAX: 801/990-1121 www.mortgageamericautah.com
