JO CO KS BK:202011 PG:007679 20201117-0007679 Electronic Recording 11/17/2020 Pages: 23 F: $395.00 Register of Deeds 1:45 PM T20200084516 AVALON VILLAS DECLARATION OF RESTRICTIONS THIS DECLARATION is made as of the 13 day of November, 2020, by SWITZER LAND COMPANY, LLC, a Kansas limited liability company ("Developer”).
WITNESSETH: WHEREAS, Developer has executed and filed with the Register of Deeds of Johnson County, Kansas a plat of the subdivision known as "Villas of Avalon", which plat includes the following described lots and tracts: Lots through 31, and Tracts A, B and C, Avalon Villas, a subdivision in the City of Overland Park, Johnson County, Kansas.
WHEREAS, Developer also owns the following adjacent real property: Tract E, WOODS AT COLTON LAKE FOURTH PLAT, a subdivision in City of Overland Park, Johnson County, Kansas.
WHEREAS, Developer, as the present owner and developer of the above-described real property, desires to place certain restrictions on such lots to preserve and enhance the value, desirability and attractiveness of the development and improvements constructed thereon and to keep the use thereof consistent with the intent of the Developer, and all of said restrictions shall be for the use and benefit of Developer and its future grantees, successors and assigns; NOW, THEREFORE, in consideration of the premises contained herein, Developer, for itself and for its successors and assigns, and for its future grantees, hereby agrees and declares that the above-described lots and tracts shall be, and they hereby are, restricted as to their use and otherwise in the manner hereinafter set forth.
1.
apply: Definitions. For purposes of this Declaration, the following definitions shall (a)
hall be, and they hereby are, restricted as to their use and otherwise in the manner hereinafter set forth.
1.
apply: Definitions. For purposes of this Declaration, the following definitions shall (a) “Approving Party” means (i) prior to the recording of the Certificate of Substantial Completion, the Developer (or its designees from time to time) and (ii) 00011488.DOCX;1 Book/Page 202011/007679_2 subsequent to the recording of the Certificate of Substantial Completion, the Board (or with respect to Exterior Structures and other matters assigned to it, the Architectural Committee).
(b) "Architectural Committee” means: (i) prior to the Turnover Date, the Developer (or its designees from time to time); and (ii) on and after the Turnover Date, a committee comprised of at least three members of the Homes Association, all of whom shall be appointed by and serve at the pleasure of the Board (subject to the provisions of Section 14 below).
(c) (d) "Board" means the Board of Directors of the Homes Association.
"Certificate of Substantial Completion” means a certificate executed, acknowledged and recorded by the Developer with the Recording Office stating that all of the Lots in the Subdivision (as then contemplated by the Developer) have been sold by the Developer and the residences to be constructed thereon are substantially completed; provided, however, that the Developer may execute and record a Certificate of Substantial Completion or similar instrument in lieu thereof in Developer's absolute discretion at any earlier time and for any limited purpose hereunder. The execution or recording of a Certificate of Substantial Completion shall not, by itself, constitute an assignment of any of the Developer's rights to the Homes Association or any other person or entity.
(e)
tion or recording of a Certificate of Substantial Completion shall not, by itself, constitute an assignment of any of the Developer's rights to the Homes Association or any other person or entity.
(e) "City" means the City of Overland Park, Kansas.
(f) "Common Areas" means (i) Tracts A, B and C of Avalon Villas, and all improvements thereon, (ii) Tract E of Woods at Colton Lake Fourth Plat and all improvements located thereon, (iii) any entrances, monuments, berms, street islands, and other similar ornamental areas and related utilities, lights, irrigation systems and landscaping constructed or installed by or for the Developer or the Homes Association at or near the entrance of any street, and any easements related thereto, in the Subdivision, (iv) all landscape easements that may be granted to the Developer and/or the Homes Association, for the use, benefit and enjoyment of all Owners within the Subdivision, and (v) all other similar areas and places, together with all improvements thereon and thereto, the use, benefit or enjoyment of which is intended for all of the Owners within the Subdivision.
(g) "Declaration" means this instrument, as the same may be amended, supplemented or modified from time to time.
(h) “Developer” means Switzer Land Company, LLC, a Kansas limited liability company, and its successors and assigns.
(i) "Exterior Structure" means any structure erected or maintained or proposed to be erected or maintained on a Lot other than the main residential structure or any structural component thereof, and shall include, without limitation, any deck, gazebo, 00011488.DOCX;I 2 Book/Page 202011/007679_3 greenhouse, animal house, outbuilding, fence, privacy screen, patio wall, rock wall,
onent thereof, and shall include, without limitation, any deck, gazebo, 00011488.DOCX;I 2 Book/Page 202011/007679_3 greenhouse, animal house, outbuilding, fence, privacy screen, patio wall, rock wall, landscape wall, boundary wall, bridge, patio enclosure, sport court, tennis court, paddle tennis court, swimming pool, hot tub, pond, basketball goal, flag pole, antennae, swingset, jungle gym, trampoline, sand box, playhouse, treehouse, batting cage, or other recreational or play structure, and all exterior sculptures, statuary, fountains, and similar yard decor.
(j) "Homes Association" means the Kansas not-for-profit corporation to be formed by or for the Developer for the purpose of serving as the homes association for the Subdivision.
(k) "Lot" means any lot as shown as a separate lot on any recorded plat of all or part of the Subdivision; provided, however, that if an Owner, other than the Developer, owns adjacent lots (or parts thereof) upon which only one residence has been, is being, or will be erected, then such adjacent property under common ownership shall be deemed to constitute only one "Lot."
(1) "Owner" means the record owner(s) of title to any Lot, including the Developer, and for purposes of all obligations of the Owner hereunder, shall include, where appropriate, all family members and tenants of such Owner and all of their guests and invitees.
(m) "Recording Office” means the Office of the Register of Deeds of Johnson County, Kansas or such other governmental office in which deeds, mortgages and other instruments relating to real property in Johnson County, Kansas are to be recorded to give public notice thereof.
(n) "Subdivision” means all of the above-described Lots in Avalon Villas, all
nd other instruments relating to real property in Johnson County, Kansas are to be recorded to give public notice thereof.
(n) "Subdivision” means all of the above-described Lots in Avalon Villas, all Common Areas, and all additional property (if any) which hereafter may be made subject to this Declaration in the manner provided herein.
(0) "Turnover Date" means the earlier of: (i) the date as of which all of the Lots in the Subdivision (as then contemplated by the Developer) have been sold by the Developer and the residences have been constructed thereon, or (ii) the date the Developer, in its absolute discretion, selects as the Turnover Date for all or any specific portion of this Declaration.
(p) "Tract E Easement" means the Landscape Easement between Woods at Colton Lake Homes Association, Inc., as grantor, and the Developer, as grantee, for the use and maintenance by the Homes Association of Tract E of Woods at Colton Lake Fourth Plat.
2.
Use of Land. Except as otherwise expressly provided in this Declaration, none of the Lots may be improved, used or occupied for other than single family, private residential purposes. The Approving Party shall have the right to determine whenever an extended family or roommate situation becomes a burden on the neighbors or the Subdivision and is no longer 00011488.DOCX;1 3 Book/Page 202011/007679_4 within the "single family" use intended by this Declaration. No trailer, outbuilding or Exterior Structure shall at any time be used for human habitation, temporarily or permanently; nor shall any residence of a temporary character be erected, moved onto or maintained upon any of the Lots or any Common Areas or be used for human habitation; provided, however, that the
permanently; nor shall any residence of a temporary character be erected, moved onto or maintained upon any of the Lots or any Common Areas or be used for human habitation; provided, however, that the Developer or others (including, without limitation, builders and real estate brokerage companies) authorized by the Developer shall have the right to use trailers or temporary buildings or structures or any residence on any Lot for model, office, sales or storage purposes during the development and build out of the Subdivision.
3.
Building Material Requirements.
(a) Exterior walls of all residences and all appurtenances thereto shall be of stucco (but no stucco board or stuccato), brick, stone (natural or "Canyon Stone", "Arch Stone" or similar), wood shingles, plate glass, glass blocks, wood or “smart board” trim, or any other materials specifically approved by the Developer in writing. Concrete blocks shall not be permitted as an exterior finished surface. All windows and exterior doors shall be constructed of glass, wood, metal, vinyl-clad, vinyl, fiberglass, or any other materials specifically approved by the Developer in writing. No windows or exterior doors may be white or silver finish. Roofs of residences shall be covered with concrete tiles of the specific types, colors, styles, dimensions and other aesthetic factors specifically approved by the Approving Party in writing. Notwithstanding the foregoing provisions of this Section 3 requiring or prohibiting specific building materials or products, any building materials or products that may be or come into general or acceptable usage for dwelling construction of comparable quality and style in the area, as determined by the Approving Party in its absolute discretion, shall be acceptable upon
r come into general or acceptable usage for dwelling construction of comparable quality and style in the area, as determined by the Approving Party in its absolute discretion, shall be acceptable upon written approval by the Approving Party in its absolute discretion. In the event the City or other government agency with jurisdiction and authority requires specific building materials not authorized above or requires that Owners have additional choices of building materials not authorized above, the Approving Party shall have the right, in its absolute discretion, to establish and regulate in writing the specific types, colors and other aesthetic features of such new or additional building materials.
(b) All applicable exterior components (excluding roofs, brick, stone, and similar components) shall be covered with a workmanlike finish of paint or stain. No residence or Exterior Structure shall stand with its exterior in any unfinished condition for longer than five months after commencement of construction. All exterior basement foundations and walls which are exposed shall be painted the same color as the body of the residence or shall be covered with material compatible with the structure.
(c) Air conditioning units, gas generators and similar apparatus shall not be attached to or located on the front of any residence and must be adequately screened if in the side yard. No window air conditioning or heating units shall be permitted.
(d) Chimneys on exterior walls may not be cantilevered and must have a foundation wall underneath and must be constructed of brick, stone, stucco or other 00011488.DOCX;1 4 Book/Page 202011/007679_5 masonry products approved by the Developer. No metal or other pipe shall be exposed
wall underneath and must be constructed of brick, stone, stucco or other 00011488.DOCX;1 4 Book/Page 202011/007679_5 masonry products approved by the Developer. No metal or other pipe shall be exposed on the exterior of any fireplace or fireplace flue (other than a minimal amount of exterior metal or piping from a direct vent fireplace). All fireplace flues in chimneys shall be capped with a black or color-conforming spark arrestor cap or as otherwise approved by the Developer.
(e) Except as otherwise permitted by the Developer in writing, all residences shall have a house number plate in the style(s) approved by the Developer, which plate shall be located adjacent to the front door or, where not practical, at another location approved by the Developer.
(f) All driveways and sidewalks shall be concrete, patterned concrete, bomanite, interlocking pavers, brick or other permanent stone finishes. Crushed gravel, asphalt and natural driveways and sidewalks along the street or from the driveway to the front door are prohibited. No driveway shall be constructed in a manner as to permit access to a street across a rear property line.
(g) permitted.
All residences shall have at least a two-car garage. No car ports are (h) In the event individual mailboxes are allowed by the U.S. Post Office, the Developer shall establish and install a standard mailbox and mailbox post for the use of two (2) adjacent residences conforming to the requirements of the U.S. Post Office. The applicable Owners will be responsible for maintaining and replacing the applicable mailbox post once installed.
(i) All wood on any decks (excluding flooring material) shall be painted or stained the same color as the body or primary trim color of the residence or a
g the applicable mailbox post once installed.
(i) All wood on any decks (excluding flooring material) shall be painted or stained the same color as the body or primary trim color of the residence or a complementary color. All deck rails shall be wrought iron (or similar black prefinished metal) or wood with wrought iron (or similar metal) or wood caps, or other materials specifically approved by the Developer in its discretion.
(i) The Developer, in its discretion, may allow variances from the foregoing requirements of this Section 3.
4.
Minimum Floor Area. No residence shall be constructed upon any Lot unless it has a total finished floor area of at least 1,500 square feet on the main floor (excluding any finished garages). The Developer, in its absolute discretion, may allow variances from the minimum square footage requirement.
5.
Approval of Plans; Post-Construction Changes; Grading; Erosion Control.
(a) Notwithstanding compliance with the provisions of Sections 3 and 4 above, no residence or Exterior Structure may be erected upon or moved onto any Lot unless and until the building plans, specifications, exterior materials, location, elevations, plot plan, lot grading plan, general landscaping plan, and exterior color scheme (all as 00011488.DOCX;1 5 Book/Page 202011/007679_6 and when may be required by the Developer for each particular stage of construction) have been submitted to and approved in writing by the Developer or, in the case of Exterior Structures to the extent provided in Section 7 or Section 8 below, the Architectural Committee, in each case as to architectural consistency and other aesthetic factors. No change or alteration in such approved building plans, specifications, exterior
ection 8 below, the Architectural Committee, in each case as to architectural consistency and other aesthetic factors. No change or alteration in such approved building plans, specifications, exterior materials, location, elevations, lot grading plans, general landscaping plans or exterior color scheme shall be made unless and until such change or alteration has been submitted to and approved in writing by the Developer or the Architectural Committee, as the case may be.
(b) Following the completion of construction of any residence or Exterior Structure, no significant landscaping change, significant exterior color change or exterior addition or alteration shall be made thereto unless and until the change, addition or alteration has been submitted to and approved in writing by the Architectural Committee.
All replacements of all or any portion of a completed structure because of age, casualty loss or other reason, including, without limitation, roofs and siding, shall be of the same materials, colors, location and elevation as the original structure unless and until the changes thereto have been submitted to and approved in writing by the Architectural Committee.
(c) All final grading of each Lot shall be completed by the Owner in connection with construction of the residence and shall be in accordance with any master grading plan approved by the City, any related grading plan furnished by the Developer for the development phase containing the Lot and any specific site grading plan for the Lot approved by or for the Developer. No landscaping, berms, fences or other structures shall be installed or maintained that impede the flow of surface water. Water from sump pump discharges shall not be directed toward adjacent residences. No changes in the
, fences or other structures shall be installed or maintained that impede the flow of surface water. Water from sump pump discharges shall not be directed toward adjacent residences. No changes in the final grading or drainage of any Lot shall be made by or for the Owner without the prior written approval of the Approving Party and (if required) the City. The Developer shall have no liability or responsibility to any builder, Owner or other party for the failure of a builder or Owner to final grade or maintain any Lot in accordance with the master grading plan or any approved lot grading plan, or for the Developer not requiring a lot grading plan or compliance therewith or for the quality or composition of any soil or subsurface material. The Developer does not represent or guarantee to any Owner or other person that any grading plan for the Lots which the Developer or any engineer or other party may approve or supply shall be sufficient or adequate or that the Lots will drain properly or to any Owner's or other person's satisfaction.
(d) During the construction of the residence and improvements on such Lot and until the Lot is completely established with grass, the Owner, at its expense, shall install and properly maintain hay bales, silt fencing and such other erosion and silt control devices as are necessary or required by law to prevent stormwater runoff from the Lot depositing silt or other debris onto adjacent Lots, Common Areas and streets. In connection therewith, the Owner shall comply with all Federal, state and local governmental laws, regulations and requirements, with all applicable permits, and with 00011488.DOCX;1 6 Book/Page 202011/007679_7 all requirements imposed by the Developer, including, without limitation, preparation of
regulations and requirements, with all applicable permits, and with 00011488.DOCX;1 6 Book/Page 202011/007679_7 all requirements imposed by the Developer, including, without limitation, preparation of inspection reports, and the Owner shall be responsible for any and all governmental fines and assessments that may be levied or assessed as a result of a failure of the Owner to so comply.
(e) All site preparation, including, but not limited to, tree removal, excavation, grading, rock excavation/removal, hauling, and piering, etc., shall be at the sole expense of the Owner or builder. All removed trees and excavated rock, etc., shall be removed from the Subdivision and shall not be spoiled within the Subdivision, except as expressly approved by the Developer. All excess dirt shall be spoiled within the Subdivision or other location as directed by the Developer and no dirt shall be removed from the Subdivision, except as expressly approved by the Developer.
(f) All building plans and plot plans shall be designed to minimize the removal of existing trees. No trees of three (3) inches or more caliper may be removed without the consent of the Developer. Each of Lots 9, 10, and 11 of Avalon Villas is restricted in the area within fifty (50) feet of Lot 24 of Woods at Colton Lake Fourth Plat such that no current trees or landscaping on such three (3) Lots within such fifty (50) feet may be removed except for installation of underground utilities (which utilities must be underground).
(g) Developer does not warrant or guarantee the present or future condition of any trees. Developer shall have no liability for any damage that may have occurred to trees in connection with the development of the Lots and surrounding areas.
tee the present or future condition of any trees. Developer shall have no liability for any damage that may have occurred to trees in connection with the development of the Lots and surrounding areas.
(h) Approval of plans or specifications by the Developer or any other Approving Party is not, and shall not be deemed to be, a representation or warranty that such plans or specifications comply with good engineering/architectural practices or any governmental requirements.
(i) Neither the sale of a Lot by the Developer to a particular builder nor the inclusion of a particular builder on a list of builders building in the area or on a list of approved builders constitutes a representation, endorsement or guaranty by the Developer or any real estate broker/salesperson of the financial stability, qualifications, work or any other matter relating to such builder. Neither the Developer nor any real estate broker/salesperson guarantees or warrants the obligations or construction by any builder.
6.
Set Backs. No residence, or any part thereof (exclusive of porches, porticoes, stoops, balconies, bay and other windows, eaves, chimneys and other similar projections), or Exterior Structure, or any part thereof, shall be nearer the street line than the building set back lines shown on the recorded plat for such Lot; provided, however, that the Approving Party shall have (i) the right to decrease, in its discretion, the setback lines for a specific Lot, to the extent they are greater than the minimum setbacks required by the City, by filing an appropriate instrument in writing in the Recording Office and (ii) the right to increase, in its discretion, the setback lines for a specific Lot(s).
00011488.DOCX;1 7 Book/Page 202011/007679_8 7.
Exterior Structures.
ument in writing in the Recording Office and (ii) the right to increase, in its discretion, the setback lines for a specific Lot(s).
00011488.DOCX;1 7 Book/Page 202011/007679_8 7.
Exterior Structures.
(a) No Exterior Structure shall be erected upon, moved onto or maintained upon any Lot except (i) strictly in accordance with and pursuant to the prior written approval of the Architectural Committee as to the applicable building plans, specifications, exterior materials, location, elevations, lot grading plans, landscaping plans and exterior color scheme and (ii) in compliance with the additional specific restrictions set forth in subsection (b) below or elsewhere in this Declaration.
Notwithstanding the foregoing sentence, the approval of the Architectural Committee shall not be required for (1) any Exterior Structure erected by or at the request of the Developer or (II) any Exterior Structure that (A) has been specifically approved by the Developer prior to the issuance of a temporary or permanent certificate of occupancy as part of the residential construction plans approved by the Developer and (B) has been built in accordance with such approved plans. Compliance with the specific requirements or restrictions set forth in subsection (b) below or elsewhere in this Declaration shall not automatically entitle an Owner to install or maintain any specific Exterior Structures, and the Approving Party, in its discretion, shall always have the right to additionally regulate, prohibit, condition or otherwise restrict any Exterior Structure notwithstanding such otherwise compliance.
(b) No fences (other than electric underground pet fences and wrought iron (or similar) fences to enclose a patio area or swimming pool area, or a wood fence to enclose
ding such otherwise compliance.
(b) No fences (other than electric underground pet fences and wrought iron (or similar) fences to enclose a patio area or swimming pool area, or a wood fence to enclose a hot tub) will be permitted. All electronic underground pet fences and patio, swimming pool or hot tub fences and the locations thereof must be approved by the Approving Party and (where required) the City prior to installation. No electronic underground fence or patio, swimming pool or hot tub fence shall be installed without a permit from the City (where required) and compliance with all applicable laws and codes, If an underground electric pet fence or patio, swimming pool or hot bub fence is installed, the Owner shall be responsible for (i) all repairs that may be required thereto, (ii) controlling all pets whenever the Association is performing its services within the yard, and (iii) mowing, trimming and otherwise maintaining any areas enclosed by any vertical fence.
(c) All hot tubs and doghouses must be located within a fenced patio area.
(d) The following Exterior Structures shall be prohibited on the Lots: animal runs, trampolines, swingsets, playground equipment, basketball goals, tennis courts, sport courts, tree houses, batting cages, storage sheds, detached greenhouses, detached garages and other detached outbuildings.
(e) No fence, wall or other Exterior Structure installed by or for the Developer or Homes Association anywhere in the Subdivision may be removed or altered by any Owner or other person without the prior written consent of the Approving Party.
00011488.DOCX;1 8 Book/Page 202011/007679_9 8.
Buildings or Uses Other Than for Residential Purposes; Noxious Activities; Miscellaneous Use Restrictions.
prior written consent of the Approving Party.
00011488.DOCX;1 8 Book/Page 202011/007679_9 8.
Buildings or Uses Other Than for Residential Purposes; Noxious Activities; Miscellaneous Use Restrictions.
(a) Except as otherwise provided in Section 2 above, no residence or Exterior Structure, or any portion thereof, shall ever be placed, erected or used for business, professional, trade or commercial purposes on any Lot; provided, however, that this restriction shall not prevent an Owner or occupant from maintaining an office area or operating a home-business occupation in his residence in accordance with the applicable ordinances of the City so long as the residential character of the area is maintained and no signs or other materials related to such home business are visible from outside the residence. No day care center, home school, or other business that has customers or nonresidents of the residence regularly visiting the residence shall be operated in any residence.
(b) No illegal, noxious or offensive activity shall be carried on with respect to any Lot; nor shall any trash, ashes, grass clippings, leaves, or other refuse be thrown, placed or dumped upon any Lot or Common Area; nor shall anything be done which may be or become an annoyance or a nuisance to the Subdivision, or any part thereof, except as may be otherwise expressly permitted by this Declaration. The foregoing shall not be construed to limit or restrict the rights or powers of the Developer or the Homes Association under this Declaration.
(c) Each Owner shall properly maintain his Lot in a neat, clean and orderly fashion. The exterior portions of the residence and all Exterior Structures on the Lot (including, without limitation, any fence that may have been installed by or for the
in a neat, clean and orderly fashion. The exterior portions of the residence and all Exterior Structures on the Lot (including, without limitation, any fence that may have been installed by or for the Developer) shall be kept and maintained by the Owner in good condition and repair at all times. Each residence exterior shall be repainted by the Owner, as needed. The Approving Party shall have the right to require repainting of each residence when the Approving Party determines that such repainting is necessary. Any significant exterior color change must be approved in advance in accordance with Section 5(b) above.
(d) Unlicensed, unregistered or inoperative motor vehicles are prohibited, except in an enclosed garage.
(e) Overnight parking of motor vehicles, boats, trailers, buses, campers, or similar apparatus of any type or character in public streets, Common Areas or vacant lots is prohibited. Motor vehicles shall be parked overnight in garages or on paved driveways only. A maximum of two (2) motor vehicles may be parked overnight on any driveway, except with the prior written consent of the Approving Party. Except as provided in subsection (g) below, no vehicle (other than an operable passenger automobile, passenger van or small truck), commercial vehicle with signage or advertising, bus, boat, jet-ski, trailer, camper, mobile home, or similar apparatus shall be left or stored overnight on any Lot, except in an enclosed garage.
(f) Trucks or commercial vehicles with gross vehicle weight of 12,000 pounds or over are prohibited in the Subdivision except during such limited time as such 00011488.DOCX;1 9 Book/Page 202011/007679_10 truck or vehicle is actually being used in the Subdivision during normal working hours for its specific purpose.
(g)
xcept during such limited time as such 00011488.DOCX;1 9 Book/Page 202011/007679_10 truck or vehicle is actually being used in the Subdivision during normal working hours for its specific purpose.
(g) Recreational motor vehicles of any type or character are prohibited except: (i) (ii) When stored in an enclosed garage; When temporarily parked on the portion of the driveway exclusively serving that Lot for the purpose of loading and unloading (maximum of 24 hours every 14 days); or (iii) With prior written approval of the Approving Party.
(h) No television, radio, citizens' band, short wave or other antenna, clothes line or pole, or other unsightly projection shall be attached to the exterior of any residence or erected in any yard. Should any part or all of the restriction set forth in the preceding sentence be unenforceable because it violates a statute or the First Amendment or any other provision of the United States Constitution or the Kansas Constitution, the Approving Party shall have the right to establish rules and regulations regarding the location, size, landscaping and other aesthetic aspects of such projections so as to reasonably control the impact of such projections on the Subdivision, and all parts thereof, and any such rules and regulations shall be binding upon all of the Lots.
Notwithstanding any provision in this Declaration to the contrary, small satellite dishes may be installed, with the prior written consent and in accordance with the requirements of the Approving Party, so as to render the installation as inoffensive as possible to other Owners (with the preference being that such satellite dishes not be visible from the street fronting the residence).
(i) No solar panels, windmills or similar devices may be installed without the
ther Owners (with the preference being that such satellite dishes not be visible from the street fronting the residence).
(i) No solar panels, windmills or similar devices may be installed without the prior written consent of the Approving Party. Should any part or all of the restriction set forth in the preceding sentence be unenforceable because it violates a statute or any provision of the United States Constitution or the Kansas Constitution, the Approving Party shall have the right to establish rules and regulations regarding the location, size, and other aesthetic aspects of solar panels, windmills and similar devices so as to reasonably control the impact of such solar panels, windmills and similar devices on the Subdivision, and all parts thereof, and any such rules and regulations shall be binding upon all of the Lots.
(j) No artificial flowers birds, animals, trees or other vegetation shall be permitted on the exterior of any residence or in the yard.
(k) Exterior holiday lights shall be permitted only between November 15 and January 31 and may not remain on the residence or any trees or bushes on the Lot during any other period. Except for such holiday lights, all exterior lighting shall be white (clear) and not colored.
00011488.DOCX;1 10 Book/Page 202011/007679_11 (1) No garage sales, sample sales, estate sales or similar activities shall be held within the Subdivision without the prior written consent of the Board.
(m) No speaker, horn, whistle, siren, bell or other sound device shall be located, installed or maintained upon the exterior of any residence or in any yard, except intercoms, devices used exclusively for security purposes, and television or stereo speakers used in accordance with any rules specified by the Board.
exterior of any residence or in any yard, except intercoms, devices used exclusively for security purposes, and television or stereo speakers used in accordance with any rules specified by the Board.
(n) All residential service utilities shall be underground, except with the approval of the Developer.
(0) In the event of vandalism, fire, windstorm or other damage, no residence or Exterior Structure shall be permitted by the Owner to remain in damaged condition for longer than three (3) months after the date of the damage (except with the specific written consent of the Approving Party) and the Owner shall cause the residence to be rebuilt, in accordance with Section 5(b), in all events within ten (10) months after the date of the damage (except with the specific written consent of the Approving Party when the repair or replacement cannot be reasonably completed within such period).
(p) No shed, barn, detached garage or other storage facility shall be erected upon, moved onto or maintained upon any Lot. No enclosure or storage shall be permitted under a deck. No temporary storage pod or container may remain on any Lot (other than in an enclosed garage) for more than twenty (10) days in any sixty (60) day period. No barbeque grills, equipment, construction or landscaping materials, or other items may be stored in the front or side yards of any Lot.
(a) No outside fuel storage tanks of any kind shall be permitted (except standard propane tanks for outdoor grills).
(r) Except for signs erected by or for the Developer or its approved real estate brokerage company for the Subdivision, no sign, advertisement or billboard may be erected or maintained on any Lot, except that: (i) One sign not more than three feet high and/or three feet wide may
e brokerage company for the Subdivision, no sign, advertisement or billboard may be erected or maintained on any Lot, except that: (i) One sign not more than three feet high and/or three feet wide may be maintained offering the residence for sale. For newly constructed homes offered for sale, only a real estate brokerage company sign (which may include a rider identifying the builder), and not also a separate sign for the builder, may be used if a real estate brokerage company is involved.
(ii) One garage sale sign not more than three feet high and/or three feet wide is permitted on the Lot when a permitted garage sale is being held, provided such signs are erected in accordance with City code and are installed no more than two hours before the start of the sale and are removed within two hours after the close of the sale.
00011488.DOCX;1 11 Book/Page 202011/007679_12 (iii) Political signs not more than six square feet are permitted on the Lot for up to 45 days before the election but must be removed within two days after the election.
(iv) Small school-related activities signs may be maintained near the residence while the student is residing in the residence. Event celebration signs ("new baby", "graduation", etc.) may be maintained for up to seven (7) days.
No signs offering a residence for lease or rent shall be allowed in the Subdivision at any time. Prior to the filing of the Certificate of Substantial Completion, no sign offering a new residence or vacant Lot for sale shall be allowed in the Subdivision (other than signs of the Developer-approved new home real estate brokerage company for the Subdivision). Without limiting the foregoing, no sign shall be permitted which (A)
allowed in the Subdivision (other than signs of the Developer-approved new home real estate brokerage company for the Subdivision). Without limiting the foregoing, no sign shall be permitted which (A) describes the condition of the residence or the Lot, (B) describes, maligns, or refers to the reputation, character or building practices of the Developer, any builder, any realtor, or any other Owner, or (C) discourages or otherwise impacts or attempts to impact a party's decision to acquire a Lot or residence in the Subdivision. In the event of a violation of the foregoing provisions, the Developer and/or the Homes Association shall be entitled to remove any such offending sign, and in so doing, shall not be subjected to any liability for trespass, violation of constitutional or other rights, or otherwise. If these limitations on the use of signs, or any part thereof, are determined to be unlawful, the Board shall have the right to regulate the use of signs in a manner not in violation of law.
(s) No sign (other than community marketing signs approved by the Developer) shall be placed or maintained in any Common Area without the approval of the Approving Party.
(t) No trash, refuse, or garbage can or receptacle (other than construction dumpsters during construction) shall be placed on any Lot outside a residence, except from the evening of the day before the scheduled pick-up day until twelve (12) hours after actual pick-up and except for grass and leaf bags placed in the back or side yard pending next scheduled trash collection.
(u) Garage doors shall remain closed at all times except when necessary for ingress and egress or when a resident is in the yard or driveway.
(v) No barbecue grills, fire pits, combustible materials or similar fire hazard
l remain closed at all times except when necessary for ingress and egress or when a resident is in the yard or driveway.
(v) No barbecue grills, fire pits, combustible materials or similar fire hazard shall be placed or maintained (even temporarily) in any yard within ten (10) feet of another residence.
(w) Each Owner who desires to rent any part of a residence must comply with all licensing and other requirements of the City. In addition, no residence or part thereof shall be rented or used for transient or hotel purposes, which are defined as: (i) rental of less than six (6) months duration or under which occupants are provided customary hotel services such as room service for food and beverages, maid service, and similar services; or (ii) rental to roomers or boarders, (i.e., rental to one or more persons of a portion of a 00011488.DOCX;1 12 Book/Page 202011/007679_13 residence only). No lease may be of less than an entire residence. Each lease shall be in writing, shall require that the tenant and other occupants acknowledge the existence of this Declaration and agree to comply with all provisions of this Declaration, shall provide that the lease shall be subject in all respects to the provisions of this Declaration and to the rules and regulations promulgated from time to time by the Board, and shall provide that the failure by the tenant to comply with the terms of this Declaration or such rules and regulations shall be a default under the lease. In the event a tenant fails to comply with the terms of this Declaration or such rules and regulations, the Owner shall, if so directed by the Board and to the extent permitted by law, terminate the lease and evict the tenant. Prior to the commencement of the term of a lease, the Owner shall notify the
the Owner shall, if so directed by the Board and to the extent permitted by law, terminate the lease and evict the tenant. Prior to the commencement of the term of a lease, the Owner shall notify the Board, in writing, of the name or names of the tenant or tenants and the time during which the lease term shall be in effect. Notwithstanding the existence of a lease, the Owner shall remain liable for all obligations under this Declaration with respect to the Lot and the improvements thereon and the use thereof and the Common Areas, and the Owner shall cause the rented property to be maintained to the same general condition and standards as then prevailing for the Owner-occupied residences in the Subdivision.
(x) Each of the Developer and the Homes Association may enforce the foregoing restrictions and other provisions of this Declaration by establishing, levying and collecting monetary fines and other enforcement charges, having vehicles, trailers or other apparatus towed away at the Owner's expense, or taking such other lawful actions as the Developer or the Homes Association, in its sole discretion, deems appropriate.
9. Animals. No animals of any kind shall be raised, bred, kept or maintained on any Lot except that dogs, cats and other common household pets may be raised, bred, kept or maintained so long as (a) they are not raised, bred, kept or maintained for commercial purposes, (b) they do not constitute a nuisance and (c) the City ordinances and other applicable laws are satisfied. Pets with vicious propensities (as determined by the Board) may be prohibited by the Board. Bees, cows, horses, swine, goats, sheep, poultry, other domesticated farm animals, undomesticated (wild) animals, exotic animals, and animals requiring special permits from any
rohibited by the Board. Bees, cows, horses, swine, goats, sheep, poultry, other domesticated farm animals, undomesticated (wild) animals, exotic animals, and animals requiring special permits from any government authority are prohibited. All pets shall be confined to the Lot of the Owner except when on a leash controlled by a responsible person. Owners shall immediately clean up after their pets on all streets, Common Areas and Lots owned by others.
10.
Lawns, Landscaping and Gardens.
(a) Within sixty (60) days after the issuance of any permanent or temporary certificate of occupancy for the residence, all lawns, including all areas between the residence and any adjacent street, shall be fully sodded and shall remain fully sodded at all times thereafter. No lawn on a Lot shall be planted with zoysia or buffalo grass.
(b) Within sixty (60) days after the issuance of any permanent or temporary certificate of occupancy for the residence, the Owner thereof shall landscape the foundation around the residence to the same standards as that generally prevailing throughout the Subdivision. All landscaping shall be installed in accordance with the 0001[488.DOCX;1 13 Book/Page 202011/007679_14 landscaping plans approved by the Developer and, except for items that are expressly the obligation of the Homes Association to maintain, shall be maintained by the Owner in good condition at all times. All vegetable gardens must be within an enclosed patio area.
(c) Within sixty (60) days after the issuance of a permanent or temporary certificate of occupancy for the residence, but in all events prior to installation of sod, each Lot shall have a sprinkler system installed (with a keyed control panel and water tap
nent or temporary certificate of occupancy for the residence, but in all events prior to installation of sod, each Lot shall have a sprinkler system installed (with a keyed control panel and water tap located outside of the residence) covering all sod and landscape areas in the entire front, rear and side yards of the Lot. Each Owner shall use the sprinkler system as necessary or appropriate (as determined by the Approving Party) during the late spring, summer and early fall months to keep the yard and landscaping green and in good condition. The Homes Association shall be provided with a key to the control panel by the Owner and shall have the right to operate the sprinkler system if the Owner fails or refuses to do so as directed by the Approving Party. No Owner shall water the Lot such that there is significant runoff onto any adjacent Lot or Common Area.
(d) All landscape walls and edging must be made of natural materials. No manufactured block walls or edging shall be permitted on any Lot.
(e) To the extent any of the foregoing items are not completed prior to occupancy, the Owner shall escrow funds, in an amount (if any) and manner determined by the Developer, to assure such installation when weather permits.
(f) No Owner of a Lot shall install any retaining or decorative wall, flower, bed, trees or other landscaping or similar improvement other than around the foundation of the residence unless (i) such installation is approved in writing by the Approving Party and (ii) the Owner agrees in writing, on a form approved by the Approving Party, to properly maintain all such items in good condition at all times and replace the same as necessary and such writing has been recorded with the Recording Office so as to be
ed by the Approving Party, to properly maintain all such items in good condition at all times and replace the same as necessary and such writing has been recorded with the Recording Office so as to be binding upon all future Owners of such Lot. If any of the items described above are not properly maintained and replaced as necessary (as determined by the Board) by the Owner of the applicable Lot, the Homes Association shall have the right to remove the item, convert the area to a grass area and assess the costs thereof as a special assessment against the applicable Lot.
(g) Each Owner shall be responsible for the replanting or reseeding of sod and grass, the trimming and replacement of trees (including, without limitation, street trees), the care and replacement of bushes, shrubbery and gardens, the care and replacement of foundation plantings (other than flowers planted by the Homes Association) and the care of any areas which have been enclosed by the Owner with fencing or hedging or otherwise made inaccessible to the Homes Association).
11. Easements for Public Utilities; Drainage; Maintenance.
(a) The Developer shall have, and does hereby reserve, the right to locate, erect, construct, maintain and use, or authorize the location, erection, construction, 00011488.DOCX;1 14 Book/Page 202011/007679_15 maintenance and use of, drains, pipelines, sanitary and storm sewers, gas and water lines, electric and telephone lines, television cables and other utilities, and to give or grant rights-of-way or easements therefor, over, under, upon and through all easements and rights-of-way of record or shown on any recorded plat of the Subdivision or any Common Area. All utility easements and rights-of-way shall inure to the benefit of all
pon and through all easements and rights-of-way of record or shown on any recorded plat of the Subdivision or any Common Area. All utility easements and rights-of-way shall inure to the benefit of all utility companies, governmental authorities, the Developer and the Homes Association, for purposes of installing, maintaining or moving any utility lines or services and shall inure to the benefit of the Developer, all Owners and the Homes Association as a cross easement for utility line service and maintenance.
(b) The Developer shall have and does hereby reserve for itself and its successors and assigns and the Homes Association and its successors and assigns an easement over and through (i) all Common Areas for the purpose of developing, improving, and maintaining the Common Areas, and (ii) all unimproved portions of each Lot for the purpose of performing the powers and duties of the Homes Association, including, without limitation, maintaining the Common Areas. The Developer shall have the right to execute and record, at any time, an easement with respect to specific areas utilized as provided above.
(c) The Developer and the Homes Association, through its authorized representative(s), may, at any reasonable time after giving at least forty-eight (48) hours advance notice to the Owner, enter any Lot, without being deemed guilty of trespass, for the purpose of inspecting the Lot and any improvements thereon to ascertain any compliance or noncompliance with the requirements and terms of this Declaration and/or any plans approved hereunder.
(d) The Developer and the builder of the residence on the Lot shall have reasonable access to each Lot for the purpose of inspecting and maintaining erosion
ration and/or any plans approved hereunder.
(d) The Developer and the builder of the residence on the Lot shall have reasonable access to each Lot for the purpose of inspecting and maintaining erosion control devices until final stabilization of the full Lot is achieved by sodding and landscaping. No Owner shall prevent or inhibit the Developer's or the builder's reasonable access for such purpose, and no Owner shall remove or damage any erosion control devices installed by the Developer or the builder. Each Owner shall notify the builder and the Developer of any damage to such erosion control devices.
(e) Each Owner of a Lot and the Homes Association shall have a perpetual nonexclusive easement on and over the adjacent side yard of each adjacent Lot for the sole and limited purpose of providing reasonable ingress and egress for the maintenance and repair of the Owner's residence, utility lines and connections, lawn and landscaping.
The Owner or the Homes Association utilizing such easement shall be responsible for minimizing and repairing any damage done to the adjacent Lot in connection with the use of such easement.
(f) The Developer, the Homes Association and their respective agents and contractors shall have the right and perpetual nonexclusive easement to enter on and use such portions of each Lot as may be reasonable necessary to permit them to exercise and 00011488.DOCX;!
15 Book/Page 202011/007679_16 perform the rights and obligations reserved, given to or imposed on the Developer and the Homes Association.
(g) In the event any easement rights granted in this Section are exercised with respect to any Lot, the party so exercising such easement rights shall exercise the same in a reasonable manner so as to minimize all adverse effects on the Owners and shall
Section are exercised with respect to any Lot, the party so exercising such easement rights shall exercise the same in a reasonable manner so as to minimize all adverse effects on the Owners and shall promptly repair any damages to such Lot resulting from the exercise of such easement rights and restore the Lot to as near the original condition as possible.
12.
Common Areas.
(a) The Developer shall have the right (but not the obligation) to provide Common Areas for the use and benefit of the Subdivision. The size, location, nature and extent of improvements and landscaping in the Common Areas, and all other aspects of the Common Areas that are provided by the Developer, shall be determined by the Developer in its absolute discretion.
(b) The Developer and its successors, assigns, and grantees, the Owners, and the Homes Association shall have the right and easement of enjoyment in and to all of the Common Areas, but only for the intended and permitted use of such Common Areas.
Such right and easement in favor of the Owners shall be appurtenant to, and shall automatically pass with, the title to each Lot. All such rights and easements shall be subject to the rights of any governmental authority or any utility therein or thereto.
(c) Any ownership by the Homes Association of any Common Area and the right and easement of enjoyment of the Owners in the Subdivision as to any Common Area shall be subject to the right of the Developer to convey sewage, water, drainage, pipeline, maintenance, electric, telephone, television and other utility easements over, under, upon and through such Common Area, as provided in Section 11 above.
(d) No Owner shall improve, destroy or otherwise alter any Common Area without the express written consent of the Approving Party.
(e)
on and through such Common Area, as provided in Section 11 above.
(d) No Owner shall improve, destroy or otherwise alter any Common Area without the express written consent of the Approving Party.
(e) Owners of Lots adjacent or nearby the Common Areas shall prevent erosion and pollutant discharges and runoff onto the Common Areas.
(f) The following rules, regulations and restrictions shall apply to the use of the Common Areas: (i) No automobiles, motorcycles, all-terrain vehicles, or other motorized vehicles or apparatus of any kind shall be allowed in the Common Areas except for the Developer's and Homes Association's mowing and otherwise maintaining the Common Area.
00011488.DOCX;1 16 Book/Page 202011/007679_17 (ii) No refuse, trash, grass clippings, leaves or debris shall be discarded or discharged in or about the Common Areas except in designated trash bins.
(iii) Access to the Common Areas shall be confined to designated areas, except that Owners of Lots adjacent to the Common Areas may have access to the area from their respective Lots (where applicable).
(g) Each of the Developer and the Homes Association shall have reasonable access through Lots adjacent to the Common Areas for the purposes of maintenance and improvement of the Common Areas, but any party exercising such right shall be responsible for repairing any damage caused by it to adjacent Lots in connection with the use of such access right.
(h) Each of the Developer and the Homes Association shall have the right from time to time to make, alter, revoke and enforce additional rules, regulations and restrictions pertaining to the use of any Common Area.
13.
Architectural Committee.
(a) No more than one (1) member of the Board shall serve on the
revoke and enforce additional rules, regulations and restrictions pertaining to the use of any Common Area.
13.
Architectural Committee.
(a) No more than one (1) member of the Board shall serve on the Architectural Committee at any time. When more than one person is an Owner of any particular Lot, no more than one person from such Lot may serve on the Architectural Committee at any given time. The positions on the Architectural Committee may be divided by the Board into two classes with staggered two-year terms. The foregoing provisions of this subsection (a) shall not apply until the Turnover Date. Until the Turnover Date, the Developer or its designees shall be the Architectural Committee.
(b) The Architectural Committee shall meet as necessary to consider applications with respect to any Exterior Structures that require the approval of the Architectural Committee as provided in Section 8 above and to consider any other matters within the authority of the Architectural Committee as provided in this Declaration. The Architectural Committee shall designate one or more of its members to whom applications may be delivered. The Architectural Committee may specify a form of application that must be used by applicants. A majority of the members of the Architectural Committee shall constitute a quorum for the transaction of business at a meeting and every act or decision made by a majority of the members present at a meeting at which a quorum is present shall be regarded as the act or decision of the Architectural Committee. Subject to applicable law, the Architectural Committee may discuss and make decisions through e-mail communications.
(c) At each meeting, the Architectural Committee shall consider and act upon
ittee. Subject to applicable law, the Architectural Committee may discuss and make decisions through e-mail communications.
(c) At each meeting, the Architectural Committee shall consider and act upon written and complete applications that have been submitted to it for approval in accordance with this Declaration. In making its decisions, the Architectural Committee may consider any and all aspects and factors that the individual members of the Architectural Committee, in their discretion, determine to be appropriate to establish and 00011488.DOCX;1 17 Book/Page 202011/007679_18 maintain the quality, character and aesthetics of the Subdivision, including, without limitation, the building plans, specifications, exterior color scheme, exterior materials, location, elevation, lot grading plans, landscaping plans and use of any proposed Exterior Structure. All decisions of the Architectural Committee shall be in writing and delivered to the applicant, who shall be responsible for keeping the same. The Architectural Committee may establish in advance and change from time to time certain procedural and substantive guidelines and conditions that it intends to follow in making its decisions.
The Architectural Committee shall act upon each written application complete with all required drawings and other information within 25 days after the date on which such completed application is received.
(d) After the Turnover Date, no member of the Architectural Committee may participate in approving any application which concerns such member's Lot and is submitted to the Architectural Committee. If such an application for approval is submitted to the Architectural Committee, and the application fails to receive approval or
rns such member's Lot and is submitted to the Architectural Committee. If such an application for approval is submitted to the Architectural Committee, and the application fails to receive approval or denial, the Board shall appoint a temporary member to the Architectural Committee for the limited purpose of considering and acting upon such application.
(e) After the Turnover Date, any applicant or other person who is dissatisfied with a decision of the Architectural Committee shall have the right to appeal such decision to the Board provided such appeal is filed in writing with a member of the Board within seven (7) days after the date the Architectural Committee renders its written decision. In making its decisions, the Board may consider any and all aspects and factors that the individual members of the Board, in their discretion, determine to be appropriate to establish and maintain the quality, character and aesthetics of the Subdivision, including, without limitation, the building plans, specifications, exterior color scheme, exterior materials, location, elevation, lot grading plans, landscaping plans and use of any proposed Exterior Structure. Any decision rendered by the Board on appeal of a decision of the Architectural Committee shall be final and conclusively binding on all parties (other than the Developer) and shall be deemed to be the decision of the Architectural Committee for all purposes under this Declaration. The Board from time to time may adopt, amend and revoke rules and regulations respecting appeals of decisions of the Architectural Committee, including, without limitation, requiring payment to the Homes Association of a reasonable fee by the appealing party.
14.
No Liability for Approval or Disapproval; Indemnification.
tectural Committee, including, without limitation, requiring payment to the Homes Association of a reasonable fee by the appealing party.
14.
No Liability for Approval or Disapproval; Indemnification.
(a) Neither the Developer, the Homes Association, nor any of their officers, directors, managers, representatives or agents, nor any member of the Architectural Committee or the Board (or any committee thereof) shall be personally liable to any person for any approval, disapproval or failure to approve any matter submitted for approval, for the adoption, amendment or revocation of any rules, regulations, restrictions or guidelines or for the enforcement of or failure to enforce any of the restrictions contained in this Declaration or any other declaration or any such rules, regulations, restrictions or guidelines.
00011488.DOCX;1 18 Book/Page 202011/007679_19 (b) If any Owner (other than the Developer) commences a lawsuit or files a counterclaim or crossclaim against the Homes Association, the Board, the Architectural Committee, any other committee, or any individual, director, officer or committee member, and such Owner fails to prevail in such lawsuit, counterclaim or crossclaim, the Homes Association, the Board, committee or individual director, officer or committee member sued by such Owner shall be entitled to recover from such Owner all litigation expenses incurred in defending such lawsuit, counterclaim or crossclaim, including, without limitation, reasonable attorneys' fees. Such recovery right shall constitute a lien against the Owner's Lot and shall be enforceable against such Lot.
(c) To the fullest extent permitted by law, the Homes Association shall indemnify each officer and director of the Homes Association, each member of the
Lot and shall be enforceable against such Lot.
(c) To the fullest extent permitted by law, the Homes Association shall indemnify each officer and director of the Homes Association, each member of the Architectural Committee, and the Developer (to the extent a claim may be brought against the Developer by reason of its appointment, removal of or control over, or failure to control, any such other persons) (each, an "Indemnified Party”) against all expenses and liabilities, including, without limitation, attorneys' fees, reasonably incurred by or imposed upon the Indemnified Party in connection with any action or proceeding, or any settlement thereof, to which the Indemnified Party may be a party or in which the Indemnified Party may become involved by reason of serving or having served in such capacity (or, in the case of the Developer, by reason of having appointed, removed or controlled or failed to control any officer or director of the Association), provided the Indemnified Party did not act, fail to act or refuse to act with fraudulent or criminal intent in the performance of the Indemnified Party's duties. The foregoing rights of indemnification shall be in addition to and not exclusive of all other rights to which any Indemnified Party may be entitled at law or otherwise.
15. Potential View Obstruction. No Owner has any right to an unobstructed view beyond the boundaries of the Owner's Lot. No Owner shall be entitled to prevent the construction or location of any structure, trees, landscaping or other item on any other part of the Subdivision, where otherwise permitted by this Declaration, because such structure, trees, landscaping or other item obstructs any view from the affected Lot.
16. Covenants Running with Land; Enforcement; Waivers. The agreements,
permitted by this Declaration, because such structure, trees, landscaping or other item obstructs any view from the affected Lot.
16. Covenants Running with Land; Enforcement; Waivers. The agreements, restrictions, reservations and other provisions herein set forth are, and shall be, covenants running with the land and shall be binding upon all subsequent grantees of all parts of the Subdivision. The Developer, and its successors, assigns and grantees, and all parties claiming by, through or under them, shall conform to and observe such agreements, restrictions, reservations and other provisions; provided, however, that neither the Developer, the Homes Association nor any other person or entity shall be obligated to enforce any such agreements, restrictions, reservations or other provisions. By accepting a deed to any of the Lots, each future grantee of any of the Lots shall be deemed to have personally consented and agreed to the agreements, restrictions and reservations set forth herein as applied to the Lot owned by such Owner.
00011488.DOCX;1 19 Book/Page 202011/007679_20 Each of the Developer and the Homes Association and each Owner shall have the right (but not the obligation) to sue for and obtain an injunction, prohibitive or mandatory, to prevent the breach of, or to enforce the observance of, the agreements, restrictions, reservations and other provisions set forth in this Declaration, in addition to pursuing an action at law for damages. To the maximum extent permitted by law, if the Developer or the Homes Association files such court action and is successful in obtaining a judgment or consent decree in such court action or otherwise obtaining compliance by the breaching party, the Developer and/or Homes Association
iles such court action and is successful in obtaining a judgment or consent decree in such court action or otherwise obtaining compliance by the breaching party, the Developer and/or Homes Association shall be entitled to receive from the breaching party, as part of the judgment or decree or any dismissal or settlement, the actual legal fees, costs and expenses incurred by the Developer and/or Homes Association with respect to such action.
To the extent permitted by law, the Board may also enforce all of the foregoing agreements, restrictions, reservations and other provisions of this Declaration by establishing, levying and collecting reasonable monetary fines for violation thereof.
Whenever the Developer or the Board determines that a violation of this Declaration has occurred and is continuing with respect to a Lot, the Developer and the Homes Association may (but is not obligated to) enter the Lot to correct the violation, and, in addition or in lieu thereof, may file with the Recording Office a certificate setting forth public notice of the nature of the breach and the Lot involved.
No delay or failure by any person or entity to exercise any of its rights or remedies with respect to a violation of this Declaration shall impair any of such rights or remedies; nor shall any such delay or failure be construed as a waiver of that or any other violation.
In addition to the specific provisions of this Declaration that allow the Developer to make certain decisions or give permission for certain matters, the Developer or the Homes Association (acting through the Board) may, under special situations or circumstances as determined by it, allow variances or waivers of the requirements or terms set forth in this Declaration. Any such
sociation (acting through the Board) may, under special situations or circumstances as determined by it, allow variances or waivers of the requirements or terms set forth in this Declaration. Any such variation or waiver so granted by the Developer or the Homes Association shall not constitute a waiver of such requirement or term in any other situation or under any other circumstances.
No waiver of any violation shall be effective unless in writing and signed and delivered by the person or entity entitled to give such waiver, and no such waiver shall extend to or affect any other violation or situation, whether or not similar to the waived violation. No waiver by one person or entity shall affect any rights or remedies that any other person or entity may have; provided, however, that a duly authorized, executed and delivered waiver by the Homes Association, acting upon a decision of the Board, respecting a specific violation or potential violation of this Declaration with respect to a specific Lot shall constitute and be deemed as a waiver by all other persons and entities (other than the Developer) of such violation or potential violation.
17. Relationship to City Ordinances. The provisions of this Declaration shall be valid and enforceable even if such provisions are more restrictive than the City's ordinances or other applicable laws. The parties entitled to enforce this Declaration shall also have the right to enforce, in a private civil action under this Declaration, all City ordinances and other laws that 00011488.DOCX;1 20 Book/Page 202011/007679_21 are applicable to the Subdivision, even if the City or other applicable governmental authority chooses not to enforce the same. All such City ordinances and other applicable laws that are in
007679_21 are applicable to the Subdivision, even if the City or other applicable governmental authority chooses not to enforce the same. All such City ordinances and other applicable laws that are in effect from time to time shall be automatically incorporated into this Declaration by this reference.
18. Assignment of Developer's Rights. The Developer shall have the right and authority, by written agreement made expressly for that purpose, to assign, convey and transfer to any person(s) or entity, all or any part of the rights, benefits, powers, reservations, privileges, duties and responsibilities herein reserved by or granted to the Developer, and upon such assignment the assignee shall then for all purposes be the Developer hereunder with respect to the assigned rights, benefits, powers, reservations, privileges, duties and responsibilities. Such assignee and its successors and assigns shall have the right and authority to further assign, convey, transfer and set over the rights, benefits, powers, reservations, privileges, duties, and responsibilities of the Developer hereunder.
19.
Release or Modification of Restrictions.
(a) The provisions of this Declaration may be amended, modified or terminated, in whole or in part, at any time by a duly acknowledged and recorded written agreement (in one or more counterparts) signed by both (i) the Owners of at least 60% of the Lots within the Subdivision as then constituted and (ii) if prior to the recording of the Certificate of Substantial Completion, the Developer, or if after the recording of the Certificate of Substantial Completion, the Homes Association under express authority and action of the Board. After the recording of the Certificate of Substantial Completion
fter the recording of the Certificate of Substantial Completion, the Homes Association under express authority and action of the Board. After the recording of the Certificate of Substantial Completion or with the Developer's written consent, this Declaration also may be amended, modified or terminated, in whole or in part, at any time by a duly acknowledged and recorded written instrument executed by the Homes Association after the proposed amendment, modification or termination has been first approved by the affirmative vote of 75% or more of the full number of directors on the Board of the Homes Association and then approved at a duly held meeting of the members of the Homes Association (called in whole or in part for that purpose) by the affirmative vote of Owners owning at least 60% of the Lots. Notwithstanding the foregoing, no amendment adopted under this Section 19(a) may remove, revoke or modify any right or privilege of Developer under this Declaration at any time without the prior written consent of Developer.
(b) Anything set forth in this Section to the contrary notwithstanding, the Developer shall have the absolute, unilateral right, power and authority to modify, revise, amend, change or add to any of the terms and provisions of this Declaration, as from time to time amended or supplemented, by executing, acknowledging and recording in the Recording Office a written instrument for such purpose, if (i) any of the Veteran's Administration, the Federal Housing Administration, the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation or any successor or similar agencies thereto shall require such action as a condition precedent to the approval by such
ederal National Mortgage Association, the Federal Home Loan Mortgage Corporation or any successor or similar agencies thereto shall require such action as a condition precedent to the approval by such agency of the Subdivision, or any part of the Subdivision or any Lot in the Subdivision, for federally-approved mortgage financing purposes under applicable programs, laws and 00011488.DOCX;1 21 Book/Page 202011/007679_22 regulations, (ii) the City requires such action as a condition to approval by the City of some matter relating to the development of the Subdivision, (iii) the amendment is necessary to cause this Declaration to comply with any applicable law, (iv) a typographical or factual error or omission needs to be corrected in the opinion of the Developer, (v) such action is appropriate, in Developer's discretion, in connection with a replat of all or any part of the Subdivision or (vi) until December 31, 2025, to make any other amendment the Developer may determine to be appropriate. No such amendment by the Developer shall require the consent of any Owner or the Homes Association.
(c) If the rule against perpetuities or any rule against restraints on alienation or similar restriction is applicable to any right, restriction or other provision of this Declaration, such right, restriction or other provision shall terminate (if not earlier terminated) upon lapse of twenty (20) years after the death of the last survivor of the individual(s) signing this Declaration on behalf of the Developer and the now-living descendants of the individual(s) signing this Declaration on behalf of the Developer as of the date of such execution.
20. Extension of Subdivision. The Developer shall have, and expressly reserves, the
scendants of the individual(s) signing this Declaration on behalf of the Developer as of the date of such execution.
20. Extension of Subdivision. The Developer shall have, and expressly reserves, the right, from time to time, to add to the existing Subdivision and to the operation of the provisions of this Declaration other adjacent or nearby lands (without reference to any tract, street, park or right-of-way) by executing, acknowledging and recording in the Recording Office a written instrument subjecting such land to all of the provisions hereof as though such land had been originally described herein and subjected to the provisions hereof; provided, however, that such declaration or agreement may contain such deletions, additions and modifications of the provisions of this Declaration applicable solely to such additional property as may be necessary or desirable as solely determined by the Developer in its discretion.
21. Severability. Invalidation of any of the provisions set forth herein, or any part thereof, by an order, judgment or decree of any court, or otherwise, shall not invalidate or affect any of the other provisions or parts.
22.
Governing Law.
accordance with the laws of Kansas.
This Declaration shall be governed by and construed in [Remainder of page left blank intentionally. Signature page follows.] 00011488.DOCX;1 22 Book/Page 202011/007679_23 IN WITNESS WHEREOF, the Developer has caused this Declaration to be duly executed the day and year first written above.
THE DEVELOPER: SWITZER LAND COMPANY, LLC By: Tak Bryste Mark R. Simpson Manager By: Saul B. Ellis, Manager STATE OF KANSAS COUNTY OF JOHNSON ) ss.
This instrument was acknowledged before me, a notary public, on November 1
R LAND COMPANY, LLC By: Tak Bryste Mark R. Simpson Manager By: Saul B. Ellis, Manager STATE OF KANSAS COUNTY OF JOHNSON ) ss.
This instrument was acknowledged before me, a notary public, on November 1 2020 by Mark R. Simpson and Saul B. Ellis, as Managers of SWITZER LAND COMPANY, LLC, a Kansas limited liability company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.
My Commission Expires: 3-29-21 [SEAL] SANDERS NOTARY SHELLEELY LYN My Appt. Expires: 3-29-2 STATE BAKER KANSAS .PUBLIC..
OF in Sunders- Baker Signature of Notary Public in and for said County and State Print Name: Shellee Lyn Sanders-Baki 00011488.DOCX;1 23