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Covenants |
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR Aspen Estates
THIS DECLARATION AND DEDICATION, is made this day of February 2005, by WARD DEVELOPMENT, L.L.C. a limited liability company existing under the laws of the State of Kansas.
WITNESSETH:
WHEREAS, WARD DEVELOPMENT, L.L.C. (hereinafter referred to as "Developer") is the owner of all of the real property described on attached Exhibit A, (hereinafter the "Real Property");
WHEREAS Developer now desires to, and does hereby, place certain restrictions on the Real Property, as described herein, all of which restrictions shall be for the use and benefit of Developer as the present owner thereof and for its future grantees and assigns, including but not limited to Aspen Estates Homes Association, a Kansas Not for Profit Corporation, it being Developer's intention to sell, transfer and convey all of the Real Property subject to certain protective covenants, conditions, restrictions, reservations, liens and charges as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises, the Developer for itself and its successors and assigns, and for its further grantees, hereby agrees that all of the Real Property known and platted as Aspen Estates, shall be and is hereby restricted as to use in the manner hereinafter set forth, and that any lot or common area, as the same shall be platted on the Aspen Estates plat, shall be held, transferred, sold, conveyed, and occupied, subject to the covenants, conditions, restrictions, easements, charges and liens as set fort in this Declaration, in order to protect the value, desirability and attractiveness of the same. Said easements, covenants, restrictions and conditions shall run with the Real Property and shall be binding upon all parties having or acquiring any right, title or interest in the Real Property, or any part thereof, and shall inure to the benefit of each Owner thereof. Every conveyance of the Real Property or any portion thereof or any real estate located within Aspen Estates, shall be and is subject to these covenants, conditions, charges, liens, restrictions and easements.
ARTICLE ONE
Definitions
The following words, when used in this Declaration, or any supplemental Declaration, shall have the following meanings:
1.1 "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of the fee simple title to any lot within Aspen Estates as the same shall be platted, including contract sellers, but excluding and not referring to those having such interest merely as security for the performance of an obligation, until such excluded person shall have acquired title thereto pursuant to foreclosure or any proceeding in lieu of foreclosure.
1.2 "Association" shall mean and refer to the Aspen Estates Homes Association, a Kansas Not for Profit Corporation, its successors and assigns.
1.3 "Member" shall mean any member of the Association which shall include and be limited to every Owner.
1.4 "Aspen Estates" shall mean and refer to the Real Property (as described herein and as the same is platted or shall be platted hereafter).
1.5 "Common Area" shall mean any and all real property (including the improvements thereon) which may hereafter be owned by the Association for the common use and enjoyment of the Owners including, but not limited to, any signs or other improvements which may be erected at the entrances to Aspen Estates,
1.6 "Lot" shall mean and refer to any plot of land shown upon the recorded Plat of Aspen Estates and designated by a particular lot number.
1.7 "Developer" shall mean and refer to Aspen Estates, Inc., its successors and assigns.
1.8 "Street" shall mean any street, road, drive or avenue of whatever name, as shown on the Plat of Aspen Estates (as the same is or may be hereafter recorded).
1.9 "Outbuilding" shall mean an enclosed, covered structure, not directly attached to the residential living unit to which it is appurtenant.
1.10 "Dwelling" shall mean and refer to one single family residential living unit designated and intended for use and occupancy as a residence by a single family.
1.11 “West Lake Lots” shall mean the Lots platted as Lots 1, 2, 3 and 4 of Aspen Estates and “East Lake Lots” shall mean the Lots platted as Lots 5 and 6 of Aspen Estates.
ARTICLE TWO
Persons Bound by Restrictions; Property Subject to this Declaration; Additions
2.1 Persons Bound. All persons, corporations, trusts, partnerships or other entities who or which may own or shall hereafter acquire any interest in the above described Real Property or any of the above-described lots hereby restricted, shall be taken to hold and agree in covenant with the Owners of all other said lots, and with their respective successors and assigns, to conform to and observe the following covenants, restrictions, and stipulations as to the use thereof and the maintenance and repair of Dwellings and improvements thereon for a period of time ending on February 31, 2040, provided, however, that each of said restrictions shall be renewable in the manner hereinafter set forth.
2.2 Property Subject. The real property which is and shall be held, transferred, sold, conveyed and occupied subject to this Declaration as of the date of this Declaration is the Real Property described above and which developer has or intends to develop and plat as Aspen Estates.
2.3 Additions to Subject Property. The Developer, its successors and assigns, shall have the right to subject additional land to the terms and conditions of this Declaration at any time, subject to the terms of this agreement. The additions of other land to this Declaration shall be made by filing of record a supplemental Declaration of Covenants, Conditions and Restrictions with respect to the additional property which shall extend the terms and conditions of the covenants and restrictions of this Declaration to such additional property. Said Supplemental Declaration may contain such complimentary additions and modifications of the covenants, conditions and restrictions contained in this Declaration as may be necessary to reflect the different character, if any, of the added properties. In no event, however, shall such Supplemental Declaration revoke, modify or add to the covenants, conditions and restrictions established by this Declaration against the original submitted land.
ARTICLE THREE
Architectural Restrictions
3.1 Submission of Plans No Dwelling, or improvement, whether a building, fence, wall, roof or other structure shall be commenced, erected or maintained on any lot, nor shall any exterior addition to or change or alteration thereof (including, without limitation, any change in exterior color or change to any driveway or other paved area) be made until the plans and specifications for the same, showing all construction details including the nature, kind, shape, height, materials, color, floor plans and location of the same, shall have been submitted to and approved in writing by the Developer or its successors or assigns. For these purposes, as well as for the purpose of enforcing all other rights and restrictions herein contained, the Developer may transfer said rights to Aspen Estates Homes Association, a Kansas Not for Profit Corporation, composed of Owners of all lots in Aspen Estates. Upon such transfer, the Association shall succeed to the rights of approval or rejection herein granted to Developer. Such approval or denial thereof shall be based upon Developer's opinion as to the suitability and desirable nature of same. In the event the Developer fails to approve or disapprove such plans and specifications within thirty (30) days after said plans and specifications have been submitted to it, approval will be deemed to have been granted.
3.2 Developer Approval Developer shall have the right to deny approval of any plans or specifications so submitted which are not, in its sole opinion, suitable or desirable for aesthetic or any other reasons, and shall have the right to take into consideration the harmony and conformity of the structure with the surrounding structures and the suitability of the same with the surrounding area and topography and the effect of such structure or building as seen from adjacent or neighboring properties. Any subsequent replacements, alteration, repainting or improvements of any building, fence, wall or other structure, also shall be subject to such prior approval of the Developer.
3.3 Specific Requirements The following specific requirements shall apply:
(a) No mobile, motor, prefab, factory built or modular homes shall be constructed on or moved to any part of the Real Property other than RV’s and similar licensed vehicles which are garaged as herein required.
(b) All propane gas tanks must be enclosed on three sides with matching materials from the house plan or approved fencing or buried underground.
(c) All roofing materials must be architectural grade shingles or better, commercial metal standing or laminate slate.
(d) All front elevations of Dwellings must be at least 60% brick, natural stone or stucco. No artificial stone shall be allowed on any exterior surface of Dwellings. (e) All siding shall be James Hardie or equivalent, vinyl siding, architecturally significant log or cedar post and beam construction may be approved on a case-by-case basis depending on type and method on installation.
(f) A minimum of seventy five feet of all driveways, measured from the Dwelling toward the street, must be constructed of poured concrete, asphalt or brick. On setbacks over seventy five feet from the street, the remainder of the driveway which reaches to the street after the first seventy five feet may be gravel. Example: For a setback of 300 feet from the street, the first 225 feet from the road may be gravel, but the last 75 feet toward the Dwelling must be poured concrete, asphalt or brick.
(g) On East Lake lots 1, 2, 3 and 4, septic systems shall be located so that lateral lines run West of the highest point of elevation, to avoid any possibility of runoff into the lake.
3.4 Minimum Set Backs The location of every Dwelling and Outbuilding on any Lot shall be subject to approval by the Developer. In addition to this general rule, the following additional requirements shall apply to set backs:
(a) No Dwelling or Outbuilding shall be located nearer than seventy five feet from the existing street lot line shown on the plat for Aspen Estates or closer than any set back required by Leavenworth County, whichever is more restrictive.
(b) West Lake Lots shall be subject to minimum set backs of not less than two hundred feet from the existing street lot line shown on the plat and in addition, Dwellings on the West Lake Lots shall be located on the highest elevation with all front elevations on a parallel line with each other.
3.5 Minimum Size and Maximum Height The size and design of all Dwellings and Outbuildings shall be subject to approval by the Developer. No single story Dwelling shall be constructed on any Lot unless it shall have a minimum finished ground floor living area of 1,800 square feet, exclusive of porches, attached garages and decks, balconies, and unfinished basement areas. One and a half story Dwellings must have not less than 1,200 square feet of finished ground floor living area and a total finished living area of 2,000 square feet, exclusive of porches, attached garages and decks, balconies, and unfinished basement areas. Two story Dwellings must have not less than 1,000 square feet of finished ground floor living area and a total finished living area of 2,000 square feet, exclusive of porches, attached garages and decks, balconies, and unfinished basement areas. No Dwelling shall be more than three stories in height, counting walk out basements as a story, and as otherwise determined by the Developer.
3.6 Owner to Obtain Permits Upon the approval by Developer of any duly submitted plans and specifications, the Owner submitting same shall secure all required permits and approvals by the applicable governmental agency authorized to issue same, but the Developer shall receive all refunds from County authorities and utility companies, including by way of illustration and not limitation, road impact fees, main waterline deposits and similar items.
3.7 Time of Construction Construction or alterations in accordance with plans and specifications so approved shall be commenced within two (2) months following the date upon which the same are approved, and shall be substantially completed within six (6) months following the date of commencement or within such longer period as the Developer shall specify in its approval. In the event construction is not commenced and completed respectively within said periods, then such approval of the plans and specifications shall be conclusively deemed to have lapsed and compliance with the provisions of this Article Three shall again be required. There shall be no deviation from plans and specifications so approved without the prior written consent of Developer. Approval of any plans, specifications or designs for use on a particular lot shall not be construed as a waiver of the right of the Developer to disapprove such plans and specifications or any elements or features thereof in the event such plans and specifications are subsequently submitted for use upon any other Lot or Lots. Notwithstanding the foregoing, exterior painting and the erection or change to a fence must be commended within thirty (30) days of approval thereof and completed within sixty (60) days of such approval.
3.8 Violation of Article In the event any building, fence, wall or other improvements or structure or painting thereof shall be commenced, erected, placed, moved or maintained upon any Lot, otherwise than in accordance with the provisions and requirements of this Article, then the same shall be considered to have been undertaken in violation of this Article and without the approval of the Developer required herein. Upon written notice from the Developer, such building, fence, wall or other structure or improvements shall be promptly removed or returned to its former status or such work completed in accordance with approved plans and specifications. In the event the same is not so removed and returned to its former status, or the violation is not otherwise corrected or terminated within fifteen (15) days after notice of such violation is delivered to the Owner of the Lot upon which such violation exists, then the Developer shall have the right, through its agents and employees, to enter upon such Lot and to take such steps as may be necessary to remove or otherwise terminate such violation and the cost thereof may be assessed against the Lot upon which such violation occurred, and when so assessed, a statement for the amount thereof shall be delivered to the Owner of said Lot at which time the assessment shall become due and payable and a continuing lien upon such Lot, and a binding personal obligation of the Owner of such Lot. The Developer shall have the further right, through its agent, or employees to enter upon and inspect any Lot or Dwelling at any reasonable time for the purpose of ascertaining whether any violation of any of the provisions of this Article, or any of the other provisions or requirements of this Declaration, exist on such Lot or, in or on such Dwelling; and neither the Developer nor any such agent or employee shall be deemed to have committed a trespass or other wrongful act by reason of such entry or inspection.
ARTICLE FOUR
Use
4.1 Single Family Residence Use Only None of the Lots hereby restricted may be improved, used or occupied for other than private residence purposes. Any building erected or maintained on any of the Lots hereby restricted shall be designated for occupancy by one single family living unit. Except for Lot 5 which is over 10 acres and may be subdivided with the approval of the Developer, Lots may not be further subdivided for occupancy by more than one Dwelling. Except as set forth below, no business of any nature shall be conducted on any Lot, nor shall anything be done thereon which may be or become a nuisance to the neighborhood, provided, however, that the Developer reserves the right to maintain a residential real estate sales office upon any of the Lots owned by it for the purpose of promoting, advertising for sale, showing, and selling Lots.
Notwithstanding this general prohibition, so long as it shall not constitute a nuisance, home based businesses may be conducted inside a Dwelling or Outbuilding, if otherwise allowed by all applicable governmental units with jurisdiction over such lot, when all such business is conducted inside the interior of the Dwelling or Outbuilding, and when such business does not have any signage, involve any environmental hazards or odors, commercial, retail, automotive, adult or child daycare or require licensing by any state or federal agency.
4.2 Satellite Dishes Satellite dishes of thirty inches or less diameter may be placed on Lots so long as they are positioned behind the front corners of the street elevation of the Dwelling.
4.3 Prohibited Uses in General No noxious or offensive activity may be carried on or permitted on any Lot, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood; nor shall any part of the premises be used for business, professional, commercial or institutional purposes, provided, however, the foregoing restrictions shall not apply to the business activities or the construction and maintenance of residential buildings by the Developer, its successors or assigns, in furtherance of its powers and purposes as herein set forth.
4.4 Temporary Structures. No structure of a temporary character, trailer, basement, tent, shack, garage, barn, or other Outbuildings shall be placed upon or used on any Lot at any time as a residence or for any other purpose, either temporarily or permanently unless approved in writing by the Developer.
4.5 Outbuildings Prohibited. No Outbuildings or other detached structures appurtenant to the residence may be erected or placed upon any of the Lots hereby restricted without the prior consent in writing of the Developer, its successors or assigns in regard to location, size and orientation. In considering applications for such approvals the Developer shall apply the following guidelines:
(a) Outbuildings shall be constructed of good quality materials equal or exceeding those used in Morton brand buildings.
(b) The size, location and orientation of Outbuildings shall be set in accordance with the size of the Lot with larger lots being entitled to larger Outbuildings if their placement does not interfere with sight lines of neighbors.
(c) No underground or above ground storage tanks of gasoline or diesel fuel are permitted, whether or not contained within an Outbuilding.
4.6 Sodded Yards. The entire front yard and side yards of every Lot shall be sodded or seeded with grass. Any other areas of the Lot shall be sodded or seeded at the earliest possible time.
4.7 Signs. No sign of any kind shall be displayed to the public view on any Lot, other than one professional sign for the sole purpose of advertising a Lot for sale or rent, temporary garage sale signs or estate sale type signs. This restriction shall not apply to the activities of Developer, its successors or assigns, in furtherance of its powers and purposes herein set forth and shall further not apply to any signs which Developer may erect from time to time for purposes of identifying the Real Property as Aspen Estates. An entrance sign for Aspen Estates shall be constructed on that part of the Real Property identified as "Tract A" on the Plat of Aspen Estates.
4.8 Animals - Pets. Except as specifically allowed below, no animals, livestock, fish, poultry or birds of any kind shall be raised, bred or kept on any Lot.
(a) Dogs, cats or other commonly accepted household pets (exclusive of pit bulls and other dangerous breeds of dogs) may be kept in reasonable numbers provided that such pets are not kept, bred or maintained for any commercial purposes.
(b) Horses may only be kept on Lot 5, 6, 7, 8, 9, 10 and 11+ 12 and in those cases only according to the following allowance. Two horses are allowed on Lots that are at least 3.4 acres. Three horses are allowed on Lots that are at least 4.75 acres. Four horses are allowed on Lots that are at least ten acres. Barns are an Outbuilding subject to all of the requirements of this document.
4.9 Garbage and Refuse Disposal. Trash, garbage or other waste shall not be kept on any Lot except in containers, which containers shall be kept in a closed garage or storage area, screened from the view of neighboring Lots until the date of pick-up thereof. All such containers shall be kept in a clean and sanitary condition. No rubbish, trash, garbage or other materials shall be burned on any Lot or any adjacent land or streets. Incinerators of every kind shall be prohibited, but leaf and yard refuse may be burned on days when it is safe to do so, if a permit for this purpose is obtained from the local fire department.
4.10 Above-Ground Swimming Pools Prohibited. Except as set forth below, no above-ground swimming pool may be maintained on any of the Lots. Plastic sided pools and hot tubs that are set at least 50% below grade, out of the front and side elevations, out of view of the roadway and which are completely decked and sided may be approved in a case-by-case basis with Developer prior approval only.
4.11 Automobile Repairing and Storage of Automobiles, Boats, Trailers, and other Vehicles. No automotive repair or re-building or any other form of automobile manufacture, whether for hire or otherwise, shall occur on any of the Lots hereby restricted except that automotive repairs on non-commercial basis and not for hire may be conducted in any enclosed garage built on any Lot and permitted under other provisions of these restrictions. Boats, trailers, mobile homes, trucks larger than one ton and like vehicles shall not be stored or parked on any Lot or on any adjacent street, except for temporary loading or unloading. No vehicle, boat, aircraft, trailer or other means of transportation, storage or transport shall be kept at any time on any portion of a Lot except upon the paved driveway thereon and in an Outbuilding thereon. The Developer may use and store construction equipment without limitation.
4.12 Antennas and Cables. Subject to Section 4.2 above, no radio or television antenna or other receiving or transmitting device shall be affixed to or placed upon an exterior wall or roof of a Dwelling or Outbuilding, nor placed free-standing on any Lot, without the prior written consent of the Developer, its successors or assigns. All secondary electrical, telephone, television and other cables and water utilities shall be run underground, and not overhead.
4.13 Bicycles, Tools & Toys. Bicycles, tricycles, tools, toys and other personal property shall be properly stored in a garage or other area out of sight of adjoining Lots except when being used.
ARTICLE FIVE
Property Maintenance
5.1 Duty to Maintain Subject to the terms and conditions hereof, each Owner shall maintain his or her Lot and Dwelling in a good state of repair, care and maintenance, including, but not limited to, the paint, trees, shrubs, grass and other landscaping, driveways, roofs, gutters, downspouts, and exterior surfaces of such Dwelling, including any necessary repairs or replacements. By way of illustration, and without intending in any way to limit the foregoing, no grass or other ground cover which is within the areas surrounding the Dwellings and Outbuildings shall be permitted to grow more than six (6) inches high before same is properly mowed and no exterior paint shall be allowed to peel or chip before the same is repainted. The provisions of this Article may be enforced under any other provisions of this instrument. Subject to the terms and conditions hereof, each Owner shall be responsible for the upkeep, maintenance, repair and care of the interior of his or her Dwelling and his or her patio area, if any, and for the upkeep, maintenance, repair and care of all other areas, features or parts of his or her Lot and Dwelling.
ARTICLE SIX
Easements
6.1 Blanket Utility Easements. There is hereby created a blanket easement in favor of the Developer, its successors and assigns, and the providing utility or service company or entity upon, across, over and under all existing utility lines as now installed, or installed as a part of the original construction, repair or rehabilitation of the any dwelling upon any Lot, or replacement thereof. Said easement shall be ten feet (10') in width and extend five fee (5') on each side of the utility line as so installed. There is hereby created a further blanket easement upon, across, over and under the above submitted land, for ingress, egress, installation, replacing, repairing and maintaining all utility and service lines and systems, including, but not limited to, water, sewers, gas, telephone, electricity, television cable or communication lines and systems, etc. By virtue of this easement, it shall be expressly permissible for the providing utility or service company to install and maintain facilities and equipment on said property and to affix and maintain wires, circuits and conduits on, in and under the rooves and exterior walls of said buildings. No sewers, electrical lines, water lines, or other utilities or service lines may be installed or relocated on said premises except as initially programmed or as hereafter approved by the Developer, its successors or assigns. This easement shall in no way effect any other recorded easement on said premises.
6.2 Easements for Ingress and Egress. Developer hereby establishes and reserves to itself, its successors and assigns, and hereby grants and dedicates to each Owner of any Lot subject to this Declaration, an easement of ingress and egress to and from their respective Lot and to a public street.
ARTICLE SEVEN
Damage or Destruction of Property
7.1 Repair Obligation. In the event any Dwelling or other structure is damaged or destroyed by an Owner or any of his or her guests, tenants, licensees, agents or family members, or in the event any Owner fails to comply with the obligations of maintenance, care, replacement or additions set forth in Articles Five or Seven of this Declaration, such Owner shall, within sixty (60) days from the date of the Notice from the Developer correct the default described in the Notice concerning such obligation to repair or rebuild or properly maintain said Lot and Dwelling in a good and workmanlike manner and in substantial conformance with the original plans and specifications used in the construction thereof. In the event such Owner refuses or fails to so repair or rebuild or properly maintain so as to correct the default described in the Notice within said 60 day period, Developer, its successors and assigns, is hereby irrevocably authorized by such Owner to repair or rebuild any such building and/or adjacent property or properly maintain the same in a good and workmanlike manner in substantial conformance with the original plans and specifications thereof. The Owner shall then repay the Developer, its successors or assigns, the amount actually expended for such repairs, rebuilding or maintenance.
7.2 Lien Rights. Each Owner further agrees that any such charges for repairs or other expenditures, under Article Seven, paragraph 7.1, if not paid in full within ten (10) days after completion of the work and billing to the Lot Owner, shall be delinquent and shall become a lien upon said Owner's Lot and Dwelling, until the total amount is fully paid. Said charges shall bear interest form the date of delinquency at the rate of eighteen percent (18%) per annum or the highest rate of interest permitted under applicable law, whichever is less. The amount of principal and interest owed by said Owner to the Developer, its successors or assigns, shall be a debt, and shall be collectible by any lawful procedure allowed by the laws of the State of Kansas.
7.3 Legal Proceedings. Each such Owner, by his acceptance of a deed to a Lot, hereby expressly vests in the Developer, its successors or assigns, or its agents, the right and power to bring all actions against such Owner for the collection of such charges and to enforce the aforesaid lien by all methods available for the enforcement of such liens, including those specified above or otherwise allowed by the laws of the State of Kansas to Developer.
7.4 No Effect on Insurance Policies. Nothing contained in this Article Seven shall be construed in any way so as to relieve any insurance company from the payment of any and all amounts which would be payable under any policy or policies of insurance had this Article Seven not been included herein.
7.5 Arbitration of All Disputes. In the event of a dispute between any one or more Owners and the Developer, its successors or assigns, or two or more Owners with respect to any obligations of the Owners under any sections of this Declaration, then upon written request of the Owner(s) involved or the Developer, its successors or assigns, addressed to the other party to such dispute, and to the Developer if it not be a party to such dispute, the matter shall be submitted to three arbitrators, one chosen by each of the parties to such dispute and the third chosen by the two first arbitrators so chosen. A determination of the matter signed by any two of the three arbitrators shall be binding upon each of the parties to such dispute, who shall share the cost of such arbitration equally. In the event one party fails to choose an arbitrator within ten (10) days after receipt of a request in writing for arbitration from the other party, then said other party shall have the right and power to choose both arbitrators.
ARTICLE EIGHT
Common Area
8.1 Use. Subject to the provisions of this article, every Owner shall have a right and easement of enjoyment in and to the Common Area and such right and easement shall be appurtenant to ownership of any Lot.
8.2 Title to Common Area. The Developer may retain the legal title to the Common Area until such time as it has completed any desired improvements thereon and until such time as, in the opinion of the Developer, the Association is able to maintain the same. Notwithstanding any provision herein, the Developer hereby covenants, for itself, its successors and assigns, that it shall convey the Common Area, subject to utility easements, rights or easement of ingress and egress to any Lot and to reservations and restrictions of record, but free of any mortgage, deed of trust or like encumbrance, to the Association not later than 2010 . The Association shall accept the conveyance of Common Area at the time conveyed by Developer.
8.3 Access To The Lake The Lake which is between the East Lake Lots and the West Lake Lots is private property and not Common Area. At the sole option of the Owner of the Lake, privileges may be granted to Owners to fish or boat upon the Lake from time to time, which privileges shall never become any entitlement and are subject to revocation at any time.
8.4 Extent of Owner Easements. The right and easements of enjoyment created hereby as to the Common Area shall be subject to the right of the Developer and of the Association to assign or convey sewage, water, drainage, and other easements over, through or under all or any part of such Common Area and subject to any requirement of any governmental authority regarding the continued maintenance of the storm water control facility.
8.5 Mortgage or conveyance of Common Area. With the exception of the conveyance of the Common Area from Developer to the Association, the Common Area may be mortgaged or conveyed only upon the approval of the 2/3 of the Owners.
ARTICLE NINE
MEMBERSHIP IN HOMES ASSOCIATION
9.1. Membership. Every Owner of a Lot which is subject to assessment hereunder shall, upon becoming an Owner of any Lot, be a member of the Association ("Member" herein). Membership shall be appurtenant to and may not be separated from ownership of any Lot which is subject to such assessment.
9.2. Voting Rights. The Association shall have two classes of voting membership as set forth in the articles of incorporation of the Association:
Class A. Class A Members shall be all Owners, with the exception of the Developer, and shall be entitled to one vote for each Lot owned. When more than one person holds an interest in any Lot, all such persons shall be Class A Members. The vote for such Lot shall be executed as such joint Owners may determine, but in no event shall more than one vote be cast per Lot.
Class B. The Class B Member(s) shall be the Developer and shall be entitled to ten votes for each Lot owned. The Class B Membership shall cease and be converted to Class A Membership upon the happening of either of the following events, whichever occurs earlier: (a) when the total votes outstanding in the Class A Membership are equal to the total votes outstanding in the Class B Membership, or (b) on January 1, _2010_____.
ARTICLE TEN
COVENANT FOR MAINTENANCE ASSESSMENTS
10.1. Creation of the Lien and Personal Obligation of Assessments. The Developer, for each Lot owned within Aspen Estates, hereby covenants, and each Owner by acceptance of a deed for any Lot, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association: (1) an annual assessment or charges, and (2) special assessments for capital improvements, both types of such assessments to be established and collected as hereinafter provided. The annual and special assessments, together with interest, costs and, to the extent allowed by law, reasonable attorney's fees, shall be a charge on the land and shall be a continuing lien upon the Lot(s) against which any such assessment is made. Each such assessment, together with interest at the highest legal rate therefor, costs and, to the extent allowed by law, reasonable attorney's fees arising out of the efforts in collection thereof, shall also be the personal obligation of the person who was the Owner of such property at the time when the assessment fell due.
10.2. Purpose of Assessment. The assessments levied by the Association shall be used exclusively to promote the recreation, health, safety and welfare of the residents of Aspen Estates, for the improvement and maintenance of any Common Area, including, but not limited to, the establishment of adequate reserve funds for taxes, maintenance, repairs and replacement of any portions or elements of the Common Area, and for such other purposes as the Association shall deem just and proper.
10.3. Amount of Annual Assessments. Until the Common Area is conveyed by the Developer to the Association, there shall be an annual assessment of $30.00 per Lot per year. From and after the conveyance of the Common Area by the Developer to the Association, the annual assessment shall be set by a vote of the Members as hereinafter provided or as provided in the by-Laws of the Association. Assessments may be paid in semiannual installments or as the Association may otherwise determine.
10.4. Special Assessments for Capital Improvements. In addition to the annual assessments authorized above, the Association may levy, in any assessment year, a special assessment applicable to that year only, for the purpose of defraying, in whole or in part the cost of any construction, reconstruction, repair or replacement of a capital improvement upon any Common Area, including fixtures and personal property related thereto, provided that any such assessment shall have the assent of two-thirds (2/3) of the votes of the Members of each class of Members who are voting in person or by proxy at a meeting duly called for this purpose.
10.5. Notice and Quorum For Any Action Authorized Under Article Ten. Written Notice of any meeting called for the purpose of taking any action authorized under Article Ten hereof, shall be sent to all Members, not less than ten (10) days nor more than thirty (30) days in advance of the date set for the meeting. At any such meeting called, the presence of Members or of proxies entitled to cast two-thirds (2/3) of all the votes of the Membership shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirement, and the required quorum at the subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than forty five (45) days following the preceding meeting.
10.6. Uniform Rate of Assessment. Both annual and special assessments must be fixed at a uniform rate for all Lots and may be collected on an annual basis, or such other basis as the Association may determine.
10.7. Date of Commencement of Annual Assessment: Due Dates. The annual assessments provided for herein shall commence as to all Lots on the first day of the month following the conveyance of the Lot to an Owner other than Developer. The first annual assessment shall be adjusted according to the number of months remaining in the calendar year. The Board of Directors of the Association shall fix the amount of the annual assessment against each Lot at least thirty (30) days in advance of each annual assessment period. Written notice of the annual assessment shall be sent to every Owner subject thereto. The due dates shall be established by the Association.
10.8. Effect of Nonpayment of Assessment: Remedies of the Association. Any assessment not paid within thirty (30) days after the due date thereof shall bear interest from the due date at the highest rate of interest allowed by law. The Association may bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien therefore against the Property. No Owner may waive or otherwise escape liability for the assessment provided for herein by nonuse of the Common Area or abandonment of his or her Lot.
10.9. Subordination of the Lien to Mortgages. The lien of the assessment as provided for herein shall be subordinate to the lien of any first mortgage and shall not by reason hereof constitute a default under any such first mortgage. Sale or transfer of any Lot shall not effect the assessment lien; provided however, that the sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding in lieu thereof, shall extinguish the lien of such assessments as to payments which became due prior to such sale or transfer. No sale or transfer shall relieve such Lot from liability for any assessment which thereafter becomes due or from the lien thereof.
ARTICLE ELEVEN
ASSUMPTION OF RIGHTS OF DEVELOPER
11.1 It is contemplated that Developer will, at a point in time not later than that time when its membership in the Association is converted to Class A, as described above, or on January 1, 2110, which ever first occurs, assign to the Association, its rights to Architectural Control, its rights to enforce maintenance and repair obligations, and its other rights all as set out above. Said assignment shall not require acceptance by an affirmative act of the Association or its Members, and may not be refused by the association, but rather shall be deemed accepted when a written instrument executed on behalf of Developer, its successors or assigns, purporting to effectuate such an assignment is filed of record in the office of the Recorder of Deeds of Leavenworth County, Kansas. The rights, duties and obligations assigned by such writing shall inure to the benefit of, and be binding upon, the Association from and after the effective date of such writing so filed of record.
ARTICLE TWELVE
EXERCISE OF AUTHORITY HEREUNDER
12.1 Except as otherwise specifically set forth hereunder, the rights of the Association hereunder, and its rights under the Restrictions when assigned to it, shall be exercised by two-thirds (2/3) of the total votes which could be cast by its Members present at a duly called and convened meeting thereof at which a quorum is present.
ARTICLE THIRTEEN
GENERAL PROVISIONS
13.1. Enforcement. The Association, or any Owner, shall have the right to enforce, by any proceeding at law or in equity, the duties, charges, covenants and restrictions now or hereafter imposed by the provisions of this Declaration. Failure by the Association or by any Owner to enforce any duty or charge herein contained shall in no event be deemed a waiver of the right to do so thereafter. The covenants, conditions, charges, liens, reservations, easements and restrictions contained herein shall run with the land and shall be binding upon all persons purchasing, owning, leasing subleasing or occupying or otherwise having any interest in any Lot in Aspen Estates, their heirs, executors, administrators, successors, grantees and assigns. All instruments of conveyance of any interest of all or any part of any Lot or Lots may contain the restrictions herein by reference to this instrument. The terms and conditions of this instrument shall be binding upon all persons affected by its terms, regardless of whether any reference is made to this instrument in the deed or other instrument of conveyance of any Lot or Lots. Enforcement hereof shall be by proceedings at law or in equity against any person or person violating or attempting to violate any covenants, either to restrain violation, or to recover damages or for both restraining and recovery of damages; provided, however that a violation of these Restrictions, or any one or more of them, shall not affect the lien of any mortgage now of record or which may hereafter be placed of record upon any Lot or any part thereof. In the event the Developer, its successors or assigns, employs an attorney or attorneys to enforce any lien or the collection of any amounts due pursuant to his Declaration, or to enforce compliance with or specific performance of the terms and conditions of this Declaration, the Owner or Owners or other parties against whom the action is brought, to the extent allowed by law, shall pay all reasonable attorney's fees and costs thereby incurred by any such enforcing party prevailing in any such action. Nothing herein shall be deemed to indicate or construed to mean that damages at law constitute an adequate remedy for violation of a restriction herein.
13.2. Severability. The invalidity of any one or more phrases, sentences, clauses, paragraphs, sections or articles hereof or any one of the duties, charges, covenants or restrictions herein contained shall not affect the remaining portions of this instrument or any part hereof, all of which are included herein conditionally on their being held valid in law and in the event that one or more of the phrases, sentences, clauses, paragraphs, sections or Articles contained herein should be invalid or should operate to render this instrument invalid, this instrument shall be construed as if such invalid phrase or phrases, sentence or sentences, clause or clauses, paragraph or paragraphs, section or sections or Article or Articles had not been included herein. 13.3 Waiver. The waiver of, or failure to enforce, any breach or violation or threatened breach or violation of any covenant, condition or restriction herein contained shall not be deemed to be a waiver or abandonment of same, or a waiver of the right to enforce any subsequent breach or violation of same. The foregoing shall apply regardless of whether any person affected hereby (or having the right to enforce same) had knowledge of the breach or violation. No covenant, condition or restriction contained herein shall be deemed to have been waived or abandoned unless this Declaration is amended to delete such restrictions as provided herein.
13.4 Equal Treatment of Owners. These restrictions shall be applied equally to all Owners without discrimination.
13.5 Gender. The singular, wherever used herein shall be construed to mean the plural when applicable, and the necessary grammatical changes required to make the provisions hereof apply either to corporations or individuals, men or women, shall in all cases be assumed as though in each case fully expressed.
13.6 Topical Headings. The marginal or topical headings of the paragraphs contained in this Declaration are for convenience only and do not define, limit or construe the contents of the Articles or sections of this Declaration.
ARTICLE FOURTEEN
Duration of Restrictions - Amendment
14.1 Duration / Renewal Each of the restrictions herein set forth shall continue and be binding upon the Developer, and upon its successors and assigns, until February 31, 2040, and shall automatically be continued thereafter for successive periods of twenty-five (25) years each, provided, however, that the Owners of the fee simple title to more than two-thirds (2/3) of the Lots hereby specifically restricted, may amend this Declaration and, following the expiration of the original term hereof, may release all of the land which is hereby restricted from any one or more of the restrictions herein set forth by executing and acknowledging an appropriate agreement or agreements in writing for such purpose and filing the same for record in the Office of the Recorder of Deeds of Leavenworth County, Kansas, PROVIDED HOWEVER that the duty to maintain that portion of the Real Property identified as "Tract B" on the Plat of Aspen Estates as the same shall be recorded shall continue and shall be binding on the Owner or Owners of the Real Property unless any amendment or modification of the duty to maintain said "Tract B" shall be approved in writing by the City of Kansas City, Kansas.
IN WITNESS WHEREOF the undersigned has executed this document as the duly authorized free act and deed of Aspen Estates, Inc. the day and year above first written.
WARD DEVELOPMENT L.L.C.
By: ITS MANAGER
STATE OF ) ) ss. COUNTY OF )
BE IT REMEMBERED, that on this day of , 2005, before me, the undersigned, a Notary Public, came _____________, who is personally known to me to be the manager of Ward Development, L.L.C.., a Kansas limited liability company and who is personally known to me to be the same person who executed the within instrument on behalf of said Ward Development, L.L.C., and duly acknowledged the execution of the same to be the free act act and deed of said Ward Development, L.L.C
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal, the day and year last above written.
Notary Public My Commission Expires: |
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