DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
ESTATES OF HAWK RIDGE
THIS DECLARATION OF COVENANTS, made as of the 26th day of February, 2001, by WHITTAKER CONSTRUCTION, LLC, a Delaware limited liability company (hereinafter referred to as "Developer").
WITNESSETH
WHEREAS, the Developer owns all of that certain tract of land in the County of St. Charles, Missouri, as such tract of land is more particularly described on Exhibit A, attached hereto and incorporated herein by reference (the "Property"); and
WHEREAS, the Developer intends, by recordation of this Declaration, to subject the Property to the terms and provisions of this Declaration.
NOW, THEREFORE, the Developer hereby declares that the Subdivision and any parts thereof, shall be held, sold, and conveyed subject to the following easements, restrictions, covenants, and conditions, which are for the purpose of protecting the value and desirability of, and which shall run with, the Subdivision and be binding on all parties having any right, title or interest in and to the Subdivision or any part thereof and shall inure to the benefit of each owner thereof and their respective heirs, legatees, personal representatives, successors and assigns.
ARTICLE I
DEFINITIONS
1. "Assessment Year" shall be the calendar year.
2. "Association" shall mean and refer to the Estates of Hawk Ridge Homeowners Association, its successors and assigns.
3. "Common Area" or "Common Areas" shall mean and refer to those areas of land within the Subdivision which are now or hereafter conveyed to the Association, together with the improvements thereon, which are intended to be devoted to the common use and enjoyment of all Owners. Such Common Areas shall include, by way of example and not by way of limitation, all areas described on the Plat as a "Common Area".
4. "Developer" shall mean and refer to Developer and to its successors and assigns, if such successors and assigns should acquire more than one undeveloped Lot from Developer for the purpose of development and be designated as "Developer" in the deed.
5. "Directors" or "Board of Directors" shall mean and refer to the Board of Directors of the Association.
6. "Dwelling" or "Dwellings" shall mean and refer to the single family dwellings constructed or to be constructed upon the respective Lots.
7. "Lot" or "Lots" shall mean and refer to the separately designated and numbered lots shown on the Plat, each of which contain or shall contain a single Dwelling, or the separately designated and numbered lots indicated on any supplemental plat of property subjected to this Declaration from time to time.
8. "Owner" or "Owners" shall mean and refer to the record owner, whether one or more persons or entities, of fee simple title to any Lot which is a part of the Subdivision, including contract sellers, but excluding those having such interest merely as security for the performance of an obligation.
9. "Plat" shall mean and refer to the plat of Estates of Hawk Ridge recorded in Plat Book _____, page _____, of the Office of Recorder of Deeds for the County of St. Charles, Missouri, a copy of which is being recorded simultaneously with this Declaration and is incorporated herein by reference, and which plat reflects, among other matters, the Lots, the Common Area and certain utility easements. "Plat" shall also mean and refer to any additional subdivided property made subject to this Declaration from time to time by amendment in the manner provided herein.
10. "Subdivision" shall mean and refer to the Property, as shown on the Plat, together with such additional parcels of real estate which may be subjected to this Declaration from time to time by amendment in the manner provided herein.
ARTICLE II
PROPERTY SUBJECT TO THIS
DECLARATION AND ADDITIONS THERETO
1. Existing Property. The real property which is and shall be held, transferred, sold, conveyed and occupied subject to this Declaration is the Subdivision, as shown on the Plat.
2. Additions to Existing Property. The Developer may cause additional properties to be made subject to this Declaration by executing and recording an amendment to this Declaration, all without the consent of any Owner, mortgagee or holder of any deed of trust encumbering the Subdivision. The properties thus added may include areas and facilities which are to constitute a portion of the Common Areas. An amendment to this Declaration which adds Common Areas to the Subdivision may contain special covenants and restrictions as to such Common Areas.
ARTICLE III
PROPERTY RIGHTS
1. Common Areas.
A. Obligations of the Association. The Association, subject to the rights and obligations of the Owners set forth in this Declaration, as it may be amended and/or supplemented from time to time, shall have the right to and shall be responsible for, the exclusive management and control of the Common Areas and improvements thereon, together with the fixtures, equipment, and other personal property of the Association related thereto.
B. Owners' Easements and Rights of Enjoyment. Subject to the terms and provisions of this Declaration, each Owner, and such Owner's family, guests and invitees shall have a nonexclusive, perpetual right and easement of ingress, egress, use and enjoyment over, across, upon, in and to the Common Areas, which easement shall include, without limitation, the right of access to and from, and use of, the Common Areas and the right to use access, utility, water, sewer, drainage and ponding easements therein. Such right and easement shall be appurtenant to and shall pass with the title to each Lot that is part of the Subdivision, shall not be severable therefrom, and shall be subject to the following provisions:
1) the right of the Association to charge reasonable admission and other fees for the use of any recreational facility situated upon the Common Areas;
2) the right of the Association to suspend any Owner's voting rights and right of such Owner, his family, guests and invitees to use the recreational facilities for any period during which any assessment against such Owner's Lot remains unpaid; and the right to suspend the same for a period not to exceed sixty (60) days for any infraction of the Association's published rules and regulations;
3) the right of the Association to dedicate all or any part of the Common Areas to any public agency, authority, or utility for such purposes and subject to such conditions as may be deemed advisable by the Association;
4) the right of each other Owner and such Owner's family, guests and invitees, to the open, unimpeded and unobstructed use of the Common Areas, as provided and limited in this Article;
5) the restriction that no Owner or member of such Owner's family or any guest or invitee of Owner or such Owner's family, shall operate, drive, ride, store or otherwise place any motorized vehicles on, in, or about
the Common Area, including, but not limited to, cars, go-carts, trailers, recreational vehicles (RVs), sleds, snow mobiles, recreational motor vehicles, trucks, vans, all-terrain vehicles (ATVs), motorcycles, motorized bicycles, motortricycles, dirt bikes, minibikes, tractors, truck-tractors, campers, and house trailers;
6) the restriction that no Owner or member of such Owner’s family or any guest or invitee of any Owner or such Owner’s family shall swim in or ice skate on any lakes or ponds in the Common Area or operate, drive, ride, store or otherwise place any watercraft (whether motorized, self-propelled, propelled or drawn by human, wind, sail, water, or otherwise) including, without limitation, boats, vessels, motorboats, sailboards, sailboats, canoes, rafts, jetskis, and kayaks, on, in, or about any part of the Common Area;
7) the easements, uses, limitations, conditions, reservations and restrictions hereinafter provided in this Declaration; and
8) the right of the Directors, on behalf of the Association, to negotiate with any public agency for the conveyance of all or any part of the Common Areas, for any public purpose, and to execute such instruments as may be necessary for such purpose, subject to the proceeds of any such conveyance being held by the Association in trust for the Owners.
Each Owner and such Owner's family, guests and invitees shall use and exercise their easement rights over the Common Areas in a reasonable manner so as not to endanger or harm others, create a nuisance for others, or cause any obstruction or impediment to the use of the easements created by this Declaration by others authorized to use them.
C. Association Right to Grant Easements and Easement Over Lots. The Association shall have the right to grant permits, licenses, and easements over the Common Areas for utilities, access, and other purposes necessary for the proper operation of the Subdivision.
A perpetual, nonexclusive easement is hereby established in favor of the Association, its employees, agents, contractors, successors and assigns for a reasonable right of entry on any Lot to perform repairs or to do other work reasonably necessary for the proper maintenance of the Common Areas and/or to perform any of the powers, rights and duties available to or imposed upon the Association by this Declaration and/or the Bylaws of the Association, including, without limitation, enforcing the covenants and restrictions imposed by this Declaration.
D. Conveyance of Title. Title to the Common Areas shall be conveyed to the Association no later than the date by which Directors are elected by Owners. Upon
termination of the Declaration, title to the Common Areas shall vest in the then Owners as tenants in common. The rights of such tenants shall only be exercisable appurtenant to and in conjunction with their Lot ownership and any conveyance or change of lot ownership shall convey ownership in the Common Area, as no interest in the Common Area shall be conveyed by any such tenant except in conjunction with the sale of such tenant's Lot.
ARTICLE IV
MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION
1. Membership. Every Owner of a Lot shall be a member of the Association. Membership in the Association shall be appurtenant to and may not be separated from ownership of any Lot.
2. Votes. All Owners, including Developer with respect to unsold Lots, shall be entitled to one vote in the Association for each Lot owned by such Owner and in no event shall more than one vote in the Association be cast with respect to any Lot. If any Owner consists of more than one person, the voting rights of such Owner shall be exercised as if the Owner consisted of only one person.
3. Proxies. At all meetings of the Association, any member may vote in person or by proxy. All proxies shall be in writing, signed by the giver of the proxy, state that the giver of the proxy is appointing the proxy holder to vote for the proxy giver at a designated meeting or meetings, and be filed with the Directors of the Association. Every proxy shall be revocable and shall automatically cease upon the conveyance by the giver of the proxy of such proxy giver's Lot.
4. Association Meetings. Meetings of Owners shall be held at a location within the Subdivision or at such other place in St. Charles County, Missouri, as may be specified in the written notice of the meeting. The first annual meeting of the Owners shall be called by the Directors at such time as the Directors deem appropriate, but in any event no later than sixty (60) days after Developer sells the last Lot in the Subdivision owned by Developer to an Owner, and thereafter the annual meeting of the Owners shall be held on the same day of each year on the anniversary date of the first annual meeting called by the Directors at the same hour or at such other date or hour specified in the written notice of such meeting. Special meetings of the Owners may be called by the President of the Association, a majority of the Directors, or by Owners having at least one third (1/3) of the votes in the Association. Written notice of the place, day and time of the annual meeting and all special meetings shall be delivered not less than five days before such meetings to all Owners and Directors, if such Directors are not Owners and to those institutional holders of a first mortgage or first deed of trust on any Lot that have requested such notice by written notification to the Directors no fewer than ten days prior to any such meeting. Any Owner or holder of a first mortgage or first deed of trust shall have the right to designate a representative to attend all annual and special meetings. If sent by mail, notice shall be deemed delivered when deposited in the
United States mail, with postage thereon prepaid, addressed to the person or entity entitled to notice at his or her last known address.
5. Quorum. A quorum of Owners for any meeting shall consist of Owners having one-tenth (1/10) of the votes in the Association, whether present in person or by written proxy submitted to the Directors at or before the meeting. Unless otherwise provided herein, the decision of a majority of a quorum shall be valid as the act of the Association. If a quorum is not present at any meeting, another meeting shall be called as provided above, and business may be conducted at said second meeting if at least one tenth (1/10) of the Owners attend in person or by proxy.
ARTICLE V
BOARD OF DIRECTORS
1. Number and Term. The Board of Directors of the Association shall, except as otherwise provided herein, consist of three (3) persons, with each person elected by a majority vote of a quorum of Owners. Except as otherwise provided herein, each Director shall hold office for the term of one year and until his successor shall be elected and qualified. The first Board of Directors shall consist of Thomas M. Schmittgens, Gordon Crawford, and Helena Beth Matthews and, so long as the Developer owns any Lots in the Subdivision, the Developer shall have the sole authority to remove and replace each of the Directors and appoint successor Directors. Within sixty (60) days after the closing of the sale of the last Lot to be sold by Developer, or at such earlier time as Developer may elect, Developer shall cause the Directors to call a meeting of the Association for the purposes of electing new Directors.
2. Election of Directors by Mail. Notwithstanding any provision of this Declaration to the contrary, elections of persons to the Board of Directors may be conducted by mail. In order to conduct an election by mail, the Board shall send a notice for each Lot to the Owner(s) of such Lot, addressed to the address of the Owner(s) then on file with the Association, notifying the Owner(s) of the election and requesting nominations for the Board of Directors. The notice shall specify that nominations will be received for a period of three (3) weeks from the date set forth on the notice. Any Owner wishing to submit a nomination of an individual shall notify the Board of Directors in writing of the name of the nominee; the nominee shall consent to such nomination in writing on the letter containing such nomination and the nominee shall also sign the letter setting forth the nomination of the nominee. After receiving nominations, the Board shall prepare a ballot containing the names of all nominations validly submitted to the Board in accordance with the requirements hereof within the time limit established in the notice. The ballot shall have typed upon it the address of the Board to which the ballot must be returned and the date by which the ballot must be received by the Board in order to constitute a valid vote. The date by which ballots must be received shall be such date as the Board of Directors, in its sole discretion, selects, provided, in no event shall such date be sooner than ten (10) days or later than twenty (20) days after the mailing of the ballots to the Owner(s). The Board shall mail one ballot for each Lot to the Owner(s) of such Lot, addressed to the address of the Owner(s) then on file with the
Association. Together with each ballot, the Board shall send an envelope, upon the outside of which is typed the name of the Owner(s) to whom the ballot is sent. After voting for the nominees by marking the ballot, the Owner shall place the ballot within the envelope accompanying the ballot and shall sign the outside of the envelope next to the typewritten name of the Owner(s). This envelope must then be placed in an envelope addressed to the Board of Directors at the address set forth on the ballot and be personally delivered to such address or delivered to such address after being deposited in the United States Mail, postage prepaid, within the required time limit. All ballots received within the required time limit, properly marked and sealed within the accompanying signed envelopes, shall be counted by the Board and results shall be announced to the Owner(s) by the Board mailing notice within seven (7) days after the deadline for receiving ballots to all Owner(s) at the addresses of the Owner(s) then on file with the Association.
3. Qualifications. Except for Directors appointed by the Developer, Directors shall be elected from among the Owners, shall be Owners, and shall reside in the Subdivision. Except as otherwise provided herein, if a Director shall cease to meet such qualifications during his term, he shall immediately cease to be a Director and his place on the Board shall be deemed vacant.
4. Vacancies. Except as provided for in Article V, Section 1 hereof, any vacancy occurring in the Board shall be filled by the remaining Directors, with the successor elected by the Owners at the next annual meeting or at a special meeting of Owners called for such purpose or by mail as set forth in Section 2 above.
5. Meetings. An annual meeting of the Directors shall be held immediately following the annual meeting of Owners and at the same place. Special meetings of the Directors shall be held upon call by a majority of the Directors on not less than forty eight (48) hours notice in writing to each Director, delivered personally or by mail or telegram. Any Director may waive notice of a meeting, or consent to the holding of a meeting without notice, or consent to any action of the Board without a meeting.
6. Removal. Except for the Directors appointed by Developer, any Director may be removed from office by Owners having two thirds of the votes in the Association.
7. Quorum. A majority of the number of Directors fixed by this Declaration as the full Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the Directors at a meeting at which a quorum is present shall be the act of the Directors. In the absence of a quorum, a majority of the Directors present at a meeting, or the Director, if there be only one present, may successively adjourn the meeting from time to time, not to exceed thirty days in the aggregate, until a quorum is obtained, and no notice other than an announcement at the meeting need be given of such adjournment.
8. Actions without Meetings. Any action which is required to or may be taken at a meeting of the Board of Directors may be taken without a meeting if consents in writing, setting forth the actions so taken, are signed by all of the Directors of the Board of Directors.
The consents shall have the same force and effect as the unanimous vote at a meeting duly held.
9. Compensation. Directors shall receive no compensation for their services, unless expressly provided for in resolutions duly adopted by the Owners.
10. Powers and Duties. The Subdivision and affairs of the Association shall be managed by the Board of Directors of the Association. The Board of Directors shall have and is vested with all powers and authorities, except as may be expressly limited by law or this Declaration, to supervise, control, direct and manage the Subdivision, affairs and activities of the Association, to determine the policies of the Association, to do or cause to be done any and all lawful things for and on behalf of the Association, to exercise or cause to be exercised any and all of its powers, privileges or franchises, and to seek the effectuation of its objects and purposes. Without limiting the generality of the foregoing, the Board of Directors may:
A. administer the affairs of the Association and of the Subdivision;
B. engage, if deemed necessary or appropriate, the services of a professional managing agent who shall manage and operate the Subdivision for all of the Owners, upon such terms and for such compensation and with such authority as the Board may approve;
C. formulate policies for the maintenance, management, operation, repair and replacement of the Subdivision and improvements and obtain such services that provide for the public health, safety and welfare of the Subdivision as the Directors may consider advisable;
D. adopt and enforce administrative rules and regulations governing the maintenance, management, operation, repair and replacement of the Subdivision and improvements, and to amend such rules and regulations from time to time;
E. provide for the maintenance, management, operation, repair and replacement of the Subdivision and improvements, including, without limitation, mowing, landscaping, planting, seeding, pruning and care of shrubbery, removal of plants, maintenance, repair and replacement of streets and street lights located within or adjacent to street right of ways (unless such maintenance, repair and replacement shall be performed by a municipal entity), and maintenance, repair and replacement of improvements located within the Common Areas;
F. provide for payments for all maintenance, management, operation, repair and replacement of the Subdivision and improvements and also the payment of any assessment pursuant to this Declaration, and to approve payment vouchers or to delegate such approval to the officers or the managing agent;
G. provide for the designation, hiring and removal of employees and other personnel, and to engage or contract for the services of others, and to make purchases for the maintenance, repair, replacement, administration, management and operation of the Subdivision and improvements, and to delegate any such powers to a managing agent (and any such employees or other personnel that may be the employees of said managing agent);
H. consider and approve or reject any and all plans and specifications (except those of Developer) for alterations to and construction of Dwellings and improvements on the Lots;
I. estimate the amount of the annual budget, and to provide the manner of assessing and collecting from the Owners their respective shares of such common expenses, as hereinafter provided;
J. collect funds owing to the Association from persons or entities other than Owners who, by provision of this Declaration, are entitled to use the Common Areas and who are obligated to share in expense for the improvement and maintenance of the Common Area;
K. grant easements and rights of way over the Common Areas to such utility companies or public agencies or others as the Directors shall deem necessary or appropriate and to make rules and regulations, not inconsistent with the law and this Declaration, for the use and operation of the Common Areas and in every and all respects governing the operation, funding and usage thereof;
L. receive, hold, convey, dispose and administer, in trust, for any purpose mentioned in the Declaration, any gift, grant, conveyance or donation of money or real or personal property;
M. make all contracts and incur all liabilities necessary, related or incidental to exercise the Board's power and duties hereunder;
N. dedicate any private streets, drives, walkways or rights of way, or portions thereof to appropriate agencies and to vacate or abandon easements in accordance with applicable legal procedures;
O. comply with such instructions of Owners having a majority of a quorum of votes in the Association, as expressed in a resolution duly adopted at any annual or special meeting of the Owners, that the Directors deem to be beneficial to the Subdivision;
P. obtain, in the Board's discretion, adequate liability and hazard insurance on the Common Areas, as well as insurance protecting the Directors from any and all claims
for damages arising out of any decision, act, or failure to act, of the Directors acting in their capacity as Directors;
Q. exercise all other necessary or appropriate powers and duties commonly exercised by a Board of Directors and all powers and duties of the Directors as stated in the Declaration;
R. purchase a fidelity bond for any person or persons handling funds belonging to the Association or Owners;
S. enforce the Declaration, and any and all restrictions governing the Subdivision and to take any and all necessary steps to secure the enforcement and compliance of the same; and
T. exercise any and all other powers or acts as are authorized by the Declaration.
10. Records. The Directors shall cause to be kept detailed and accurate records in chronological order of the receipts and expenditures affecting the Subdivision, specifying and itemizing the common expenses incurred. Such records and the vouchers authorizing the payments of such expenses shall be available for examination by the Owners, and by the holders of a first mortgage or first deed of trust on any Lot, at convenient hours on week days. Payment vouchers may be approved in such manner as the Directors may determine.
ARTICLE VI
BUDGET, ASSESSMENTS AND SUBDIVISION LIEN
1. Creation of the Subdivision Lien. Each Owner of a Lot by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association: (1) regular assessments and charges ("Assessments"), and (2) special assessments ("Special Assessments") for capital improvements, such assessments to be established and collected as hereinafter provided. The Assessments and Special Assessments together with interest, costs, and attorneys' fees, shall be a charge on each Lot and improvements thereon and shall be, upon levying of the same, a continuing lien upon the Lot against which the Assessment or Special Assessment is made. Each such Assessment or Special Assessment, together with interest, costs, and reasonable attorneys' fees, shall also be the personal obligation of the person who was the Owner of such Lot at the time the Assessment or Special Assessment became due. Notwithstanding the foregoing, no Assessments or Special Assessment shall be charged against Lots owned by Developer and Developer shall have no obligation to pay Assessments or Special Assessments relating to Lots owned by Developer at any time.
2. Purpose of Assessment. The Assessments levied by the Association shall be used exclusively to promote the health, safety, and welfare of the residents of the Subdivision, for the improvement and maintenance of the Subdivision and Common Areas, any recreational
facilities constructed by Developer for use by the Owners and otherwise to fulfill and perform the Association's rights, duties, obligations and functions pursuant to this Declaration.
3. Establishment of Budget and Assessments.
A. Unless the Directors otherwise decide, the fiscal year of the Association shall be a calendar year. On or before the end of each Assessment Year, the Directors shall cause to be prepared an estimated annual budget for the next Assessment Year. Such budget shall take into account the estimated expenses and cash requirements for the Assessment Year, including, without limitation, salaries, wages, payroll taxes, supplies, materials, parts, services, maintenance, repairs, replacements, landscaping, insurance, fuel, power, water and other common utilities, management fees, expenses associated with Common Areas and other common expenses (as distinguished from individual mortgage payments, real estate taxes and individual telephone, electricity, gas, and other individual utility expenses billed or charged to the separate Owners on an individual or separate basis rather than a common basis). The annual budget may provide for a reserve for contingencies for the Assessment Year and a reserve for replacements, in reasonable amounts as determined by the Directors. To the extent that the Assessments and other cash income collected from the Owners during the preceding years shall have been more or less than the actual expenditures for such preceding year, the surplus or deficit, as the case may be, shall also be taken into account.
B. Until commencement of the first Assessment Year after Developer has transferred control of the Subdivision pursuant to Article V, Section 1 hereof, the Owners of each Lot shall pay, on or before the 1st day of each Assessment Year, as such Lot's respective annual Assessment, such Lot's proportionate share of the estimated annual budget for each Assessment Year as estimated by the Developer and approved by the Directors.
C. Upon commencement of the first Assessment Year after Developer has transferred control of the Subdivision pursuant to Article V, Section 1 hereof, the Directors shall prepare the annual Budget and shall fix the Assessment, provided that the Assessment may be increased by more than ten percent (10%) in any given Assessment Year only by approval by Owners having at least two thirds (2/3) of a quorum of the votes in the Association at an Association meeting and by a vote in accordance with the voting procedures set forth herein. Copies of the estimated annual budget shall be furnished by the Directors to the Owners not later than thirty (30) days prior to the beginning of such Assessment Year. Any institutional holder of a first mortgage or first deed of trust on any Lot shall receive at no cost, if it so requests in writing, said statement from the Directors. On or before the first day of each succeeding Assessment Year, and without further notice, the Owners of each Lot shall pay, as the respective annual Assessment for such Lot, such Lot's share of the expenses for such Assessment Year as shown by the annual budget. In the event that the Directors shall not approve an estimated annual budget or shall fail to determine new
Assessments for any Assessment Year, or shall be delayed in doing so, the Owners shall continue to pay each year the annual Assessment as last determined. All Owners shall pay the annual Assessments to the managing agent or as may be otherwise directed by the Directors.
D. The Directors shall cause to be kept a separate account for each Lot showing the respective Assessments charged to and paid by the Owners of such Lot, and the status of such account from time to time. Upon ten (10) days written notice to the Directors, and the payment of a reasonable fee therefor, any Owner or holder of a first mortgage or first deed of trust on any Lot shall be furnished a statement of the respective account for such Lot setting forth the amount of any unpaid Assessments that may be due and owing.
E. In the event that during the course of any Assessment Year, it shall appear to the Directors that the monthly Assessments, determined in accordance with the estimated annual budget for such Assessment Year, are insufficient or inadequate to cover the estimated common expenses for the remainder of such Assessment Year, then the Board shall prepare and approve a supplemental budget covering the estimated deficiency for the remainder of such year. Copies of such supplemental budget shall be made available to each Owner and, notwithstanding any provision hereof to the contrary, any additional Assessment necessary to cover such deficiency shall be levied in a fair and equitable manner within the sole discretion of the Directors.
4. Special Assessments for Capital Improvements. In addition to the Assessments authorized above, the Association may levy, in any Assessment Year, a Special Assessment applicable to that Assessment Year only, for the purpose of defraying in whole or in part, the costs of any construction, reconstruction, repair or replacement of a capital improvement upon the Common Areas including fixtures and personal property related thereto, provided that Special Assessments shall be approved by a vote of Owners having at least two thirds (2/3) of a quorum of the votes of the Association at a meeting at which a quorum is present.
5. Uniform Rate. Assessments and Special Assessments must be fixed at a uniform rate for all Lots.
6. Commencement of Annual Assessments. Each Owner shall pay his first annual Assessment upon the closing of the purchase of his Lot, adjusted according to the number of months remaining in the Assessment Year. Thereafter, annual Assessments shall be paid as provided herein. In addition to the foregoing, each Owner purchasing a Lot from the Developer shall pay an initial set-up fee to be deposited with the Association and which shall be in such amount as Developer shall determine but which shall be uniform for all Lot Owners.
7. Non payment of Assessments. Any Assessment or Special Assessment not paid within thirty (30) days after the due date shall bear interest from the due date at the lesser of (i) the
rate of ten percent (10%) per annum, or (ii) the maximum rate per annum allowed by law. The Association and the Directors shall have the authority to exercise and enforce any and all rights and remedies as provided in this Declaration or as otherwise available at law or in equity, including, but not limited to, the right to foreclose the lien against the defaulting Owner's Lot in like manner as a mortgage on real estate or a power of sale under Chapter 443, R.S.Mo. In addition to the foregoing, the Association and the Directors shall have the right to suspend any Owner's voting rights and the right of such Owner, his family, guests and invitees to use the recreational facilities in the Common Areas for any period during which any assessment against such Owner's Lot remains unpaid. No Owner may waive or otherwise escape liability for the Assessments and Special Assessments established herein by non use or abandonment of such Owner's Lot or the Common Area.
8. Unexpended Assessments and Special Assessments. All funds paid from time to time by Owners for Assessments and Special Assessments, from time to time on hand and unexpended shall be deemed to be owned equally and in common by the Owners.
9. Subordination of the Lien to Mortgages. The liens of the Assessments or Special Assessments provided for herein shall be subordinate to the lien of any first mortgage or first deed of trust encumbering the Lot. Sale or transfer of any Lot shall not affect the liens for Assessments or Special Assessments; however, the sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding in lieu thereof shall extinguish the lien of such Assessments or Special 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 Assessments or Special Assessments thereafter becoming due or from the lien thereof.
ARTICLE VII
GENERAL COVENANTS AND RESTRICTIONS
1. Creation of Covenants and Restrictions. Each Owner of a Lot by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, covenants and agrees to the following terms, provisions, covenants and restrictions which run with the land and are perpetual and appurtenant to the Lots:
A. No Lot shall be used for any business or commercial purpose, and each Lot shall be used solely for residential purposes except (i) for use pursuant to home occupations as set forth below, and (ii) Lots or portions of Lots may be used by Developer for temporary offices, display or model homes and/or entrance monuments, provided, however, that in no event shall any Lot be conveyed or transferred in any manner to a civic, religious, charitable or fraternal organization, or any person or persons other than for the exclusive use of an individual family.
B. Except as otherwise provided herein, each Owner shall maintain his Lot and Dwelling in compliance with all applicable zoning ordinances and subdivision regulations of the City of Lake Saint Louis, Missouri and St. Charles County,
Missouri. To the extent that the City or any other governmental authority shall require permits for the erection of any improvements upon a Lot, including, without limitation, fences, decks or other structures or improvements, the Owner of such Lot shall be responsible for obtaining the same.
C. No Owner, except Developer with respect to Lots owned by Developer, shall cause any construction on a Lot without first submitting the plans and specifications for such construction to the Directors and obtaining approval for such construction from two thirds (2/3) of the Directors. In the event the Directors fail to approve or disapprove the plans and specifications within thirty (30) days after their submission to the Directors, the plans and specifications shall be deemed approved.
D. No Dwelling, Lot or any portion thereof shall be used for any noxious or offensive activity nor for any purpose prohibited by law or ordinance or which may become an annoyance or nuisance, in the judgment of the Directors, to other Owners or inhabitants of Lots.
E. No Lot shall be re subdivided nor shall a fractional part of any Lot be sold or leased, provided, however, that the Developer may re subdivide any Lot and sell or lease any fractional part thereof.
F. No trash, rubbish, garbage, trashcan or other receptacle therefor, other than those receptacles approved by the Association, shall be placed on any Lot outside of a Dwelling.
G. No tank, bottle or container of fuel shall be erected, placed or permitted above the surface level of any Lot.
H. Each Owner shall, as necessary, repair, maintain, replace, or clear at his sole expense each and every gas, sewage, and water lateral line on or servicing his only Dwelling or Lot.
I. No structure of a temporary character, trailer, mobile home, tent, shack, garage, barn or other outbuilding shall be used on any Lot at any time as a temporary or permanent residence.
J. No signage of any kind shall be displayed to the public view on any Lot, except (i) one sign of not more than five square feet advertising the Lot for sale or rent, (ii) one sign of not more than one square foot warning people of dangerous animals located in the home or on the Lot, and (iii) one sign not exceeding one square foot notifying people of the presence of an alarm or home security system located in the home located on the Lot; provided, however, there shall be no restrictions on the number or type of signage used by Developer to advertise or market the Subdivision during the construction, development and sales of Lots and Dwellings in the Subdivision by the Developer and, provided, further, Developer shall have the right to permit builders who may by a Lot from Developer to erect signage advertising the sale of such Lot or home.
K. Each Owner shall maintain his Lot in a neat attractive manner, including without limitation, maintenance of the lawn and shrubbery. No Owner shall permit the lawn upon such Owner's Lot, whether grass, legume or ivy, to grow in excess of six (6) inches in height.
L. The Board shall as it, in its sole discretion, deems appropriate, be responsible for and shall undertake the landscaping, shrubbing, planting, sodding, and seeding of all Common Areas. The Board may establish and set aside such portions of the Common Areas as it shall deem appropriate for the establishment of community gardens, and the Board shall promulgate the rules and conditions under which such community gardens may be used by the Owners. No landscaping, gardening, planting, grading, paving, or change of terrain or any structure shall be undertaken, constructed, erected, performed, done, dug or installed within any of the Common Areas except as specifically provided herein.
M. Fences that receive the prior written approval of the Board of Directors may be erected on a Lot provided any such fences shall be built of wood, wrought iron or PVC (each in colors and styles approved by the Board of Directors) and of a height no greater than six (6) feet. Under no circumstances shall chain link fences be allowed upon any Lot in the Subdivision. No fence, wall, hedge or shrub planting higher than three (3) feet above the roadways shall be placed or permitted to remain on any corner Lot within the triangular area formed by the street property lines and a line connecting them at points thirty (30) feet from the intersection of the street property lines extended. The same sight line limitations shall apply on any Lot within ten (10) feet from the intersection of a street property line with the edge of a driveway or alley pavement. No tree shall be permitted to remain within such distances of such intersections unless the foliage line is maintained at sufficient height to prevent obstruction of such sight lines.
N. No more than one storage building or other outbuilding shall be permitted on any Lot and then only if the exterior material of such storage building or outbuilding coordinates with the exterior of the Dwelling and is approved by the Directors.
O. No animals, livestock, or poultry of any kind shall be raised, bred or kept on any Lot, except dogs, cats or other household pets which may be kept, provided they are not kept, bred or maintained for any commercial purposes and provided that such household pets do not exceed two (2) in number per Dwelling on any Lot at any one time. Each Owner shall comply with all ordinances, zoning and subdivision regulations of the City of Lake Saint Louis, Missouri and St. Charles County, Missouri, relating to the supervision, control, responsibility and maintenance of animals and/or pets in residential areas.
P. Vehicles and watercraft, whether motorized, self-propelled, propelled or drawn by human, wind, sail, water, fuel or otherwise, including, but not limited to, boats, vessels, motorboats, sailboats, sailboards, canoes, kayaks, boat trailers, recreational vehicles (RVs), sleds, recreational motor vehicles, vans, all-terrain vehicles (ATVs), motorcycles, motorized bicycles, motortricycles, dirt bikes, minibikes, tractors, truck-tractors, trucks displaying commercial advertising, trailers, campers, and house trailers shall not be parked, placed or stored outside of any Dwelling, provided, this shall not prohibit the parking on the driveway located on the Lot of no more than two (2) passenger automobiles, licensed to the Owner of the Dwelling or a full-time resident thereof that are in operating condition.
Q. No Owner, except Developer, shall alter or change any watercourse or finished grade without the express, written approval of the Directors.
R. No firearms, pellet or B.B. guns shall be discharged in the Subdivision.
S. Satellite dishes shall not be installed, constructed or maintained on any Lot or on the exterior of any Dwelling or other improvement on any Lot without the prior written approval of the Board of the type, model, size, design, location, landscaping, appearance and other components thereof and related equipment therefor. Any satellite dish approved by the Board shall be installed in accordance with, and maintained in the condition described in, the plans and specifications approved by the Board therefor. Under no circumstances shall television or radio antennas be permitted on any Lot or the exterior of any Dwelling or other improvement on any Lot.
2. Dwelling Restrictions. In addition to the General Provisions set forth hereinabove, all Dwellings shall be subject to the following restrictions:
A. Land Use. None of said Lots may be improved, used or occupied for other than private residence purposes and no flat or apartment house, although intended for residential purposes, may be erected thereon, provided, however, subject to the other restrictions contained in this Declaration, an Owner may use such Owner's Dwelling for a home occupation. Any residence erected or maintained on any of said Lots shall be designed for occupancy by a single family. For purposes of this Declaration, a "home occupation" shall mean: Any occupation, business or commercial activity carried on at the Dwelling by a member of the immediate family residing at the Dwelling and no more than one (1) nonrelated employee, which use is otherwise in compliance with all applicable laws, including, without limitation, the Zoning Ordinance of the City of Lake Saint Louis, Missouri, provided, the following uses are forbidden:
1) dog grooming;
2) provision of care, instruction or training of more than five (5) children, at one (1) time, not including the occupants of the Dwelling, whether or not for profit;
3) any wholesale, jobbing or retail business unless it is conducted entirely by mail and/or telephone and does not involve the receipt, sale, shipment, delivery or storage of merchandise on or from the Dwelling;
4) any manufacturing business;
5) any repair shop operating on or from the Dwelling;
6) a clinic or hospital;
7) a barber shop or beauty parlor;
8) a stable, animal hospital, dog kennel or dovecote;
9) a restaurant;
10) any activity that produces noxious matter or employs or produces flammable matter; and
11) any occupation which involves the use of any mechanical equipment other than what is usual for purely domestic or hobby purposes, or what is usual for a small business, professional or medical office.
B. Height Limitation. Any Dwelling erected on any of said Lots shall not be more than two (2) levels in height above ground, provided, that (i) walkout basements shall not be included in calculating such height limitation, and (ii) a Dwelling more than two (2) stories in height may be erected on any of said Lots with the written consent of the Board of Directors of the Association.
C. Minimum Building Size Requirements. Any Dwelling must conform to the following minimum enclosed floor area:
Ranches or one story 2,000 square feet
Two-story 2,500 square feet
Split-level 2,500 square feet
The words "enclosed floor area" as used herein shall mean and include any Dwelling enclosed and finished for all-year occupancy, computed on outside measurements of the Dwelling but shall not mean and include any area of basements, garages, porches or attics.
D. Building Lines. No part of any Dwelling shall be located on any Lot nearer to the front street or the side street that is the front building line or the side building line shown on the Plat. Provided, however, the following enumerated parts of any Dwelling may project over the above-described front, side and rear lines, for the distance shown, to-wit:
1) Window Projections. Bay, bow or oriel, dormer and other projecting windows not exceeding one (1) story in height may project not to exceed four (4) feet.
2) Miscellaneous Projections. .Cornices, spouts, chimneys, brackets, pilasters, grillwork, trellises and other similar projections for purely ornamental purposes may project a distance not to exceed three (3) feet.
3) Porch Projections. Unenclosed, covered porches, balconies and porte cocheres may project beyond the front building line not to exceed six (6) feet.
E. Uncompleted Structures. No Dwelling shall be permitted to stand in an unfinished condition for longer than six (6) months after commencement of construction. In the event of fire, windstorm, or other damage, no Dwelling shall be permitted to remain in a damaged condition longer than six (6) months. The outside exterior walls and trim shall be completely finished within one hundred eighty (180) days.
F. Garages. All garages must be a minimum of a two-car garage, and must be attached to the Dwelling unless installed by the Developer in the initial construction of the Dwelling or otherwise approved by the Board of Directors, in its sole discretion. All garages shall be side entry garages unless otherwise approved by the Developer or the Board of Directors and shall be equipped with doors which shall be kept closed as much as practicable to preserve the elevation of the house. No carports will be allowed.
G. Exterior Walls. The exterior walls of all Dwellings shall be constructed of wood or wood products, clay, brick, rock, stone, cementitious siding (e.g. Hardee Board), or vinyl siding, in an attractive manner and of good workmanship, provided however, that if the exterior walls of any Dwelling are constructed of wood or wood products, the same shall be painted or stained. Not more than eighteen (18) inches of concrete foundation wall may be left exposed without being covered or constructed of the same materials as used in the construction of the exterior wall of the Dwelling directly above the exposed portion of the concrete foundation.
H. Swimming Pools. Only in-ground pools shall be allowed, provided, (i) fences or other barrier devices built of approved material and of a decorative character shall be erected to a height of at least four (4) feet for the purpose of screening any pool, (ii) the plans and specifications for said fence or screening material and a drawing
showing the proposed location of the same shall be approved in advance by the Board of Directors of the Association with respect to (a) the quality of materials, (b) harmony of external design with existing Dwellings and improvements, and (c) their proximity to other Dwellings and improvements. Under no circumstances shall above-ground pools be allowed upon any Lot in the Subdivision.
I. Roofs. All roofs shall consist of either slate, tile, cedarshake, or three-dimensional architectural asphalt shingles; stacked asphalt shingles are prohibited.
J. Yards. All front yards shall be sodded and contain some landscaping within six (6) months after each Dwelling is sold for initial occupancy by an Owner.
K. Driveways. All driveways and walks shall be exposed aggregate, stone, or stamped concrete.
L. Mailboxes. All Dwellings shall contain a mailbox approved in advance by Developer or the Board of Directors.
ARTICLE VIII
EASEMENTS
1. Encroachment Easement. Should any portion of any Dwelling as constructed on any Lot by Developer overhang or encroach on an adjacent Lot or on any Common Area, the Owner of the overhanging or encroaching Dwelling shall have an easement on such adjacent Lot or Common Area, as the case may be, to permit the overhanging or encroaching portion of such construction to remain in the same state and location as when said Dwelling was first occupied for residential use. Such easement shall be appurtenant to and shall pass with title to the Lot on which said improvements were constructed.
2. Utility Easements. Easements for installation and maintenance of utilities and drainage facilities are reserved as shown on the Plats. Within these easements, no structure, planting or other material shall be placed or permitted to remain which may damage or interfere with the installation and maintenance of utilities, or which may change the direction of flow of drainage channels in the easements, or which may obstruct or retard the flow of water through drainage channels in the easements. The easement area of each Lot and all improvements in it shall be maintained continuously by the Owner of the Lot, except for those improvements for which a public authority or utility company is responsible.
3. Temporary Construction Easement. Until the last Lot is sold and conveyed to an Owner other than the Developer, the Common Area and that portion of each Lot not occupied by a Dwelling shall be subject to an easement allowing the Developer, its employees, agents, contractors and subcontractors to enter upon and over the Common Area and Lot for the purpose of construction on adjoining Lots, Common Area and streets.
ARTICLE IX
EXTERIOR MAINTENANCE
Each Owner shall be responsible for keeping his Lot and the exterior of such Owner’s Dwelling in good repair and in a clean and tidy condition, including, without limitation, re painting of the exteriors as necessary. In the event an Owner shall fail to maintain his Lot and Dwelling in a manner satisfactory to the Directors or the Association, upon an affirmative vote of the Directors, the Association shall have the right, through its agents and employees, to enter upon said Lot and to repair, maintain, and restore the Lot and the exterior of the Dwelling, including but not limited to the removal of rubbish and debris, and any and all landscaping deemed appropriate by the Directors. The Directors or their agents or employees shall not be held liable for any manner of trespass that might arise under this Article. The cost of such maintenance shall be added to and become part of the next Assessment to which such Lot is subject, and, in the event said costs are not paid on or before the date the next Assessment payment is due, the Association shall be entitled to all remedies provided in Article VI, Section 7 for non payment, including, without limitation, imposition of a lien on said Owner's Lot and foreclosure thereof.
ARTICLE X
GENERAL PROVISIONS
1. Enforcement. The Association, the Directors, or any Owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Failure by the Association, the Directors or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.
2. Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall not affect any other provisions, which shall remain in full force and effect.
3. Term. The covenants, conditions and restrictions of this Declaration shall run with and bind the Subdivision, for a term of fifty (50) years from the date this Declaration is recorded, after which the said covenants and restrictions shall be automatically extended for successive periods of twenty (20) years each unless an instrument signed by the then Owners having seventy five percent (75%) of the votes in the Association has been recorded, agreeing to terminate this Declaration as of the end of any such period. No such agreement of termination shall be effective unless made and recorded six (6) months in advance of the effective date of such termination.
4. Amendment. This Declaration may be amended by the unanimous consent of the Directors at any time prior to the election of the Board of Directors by the Association, as provided in Article V, Section 1 of the Declaration. Thereafter, this Declaration may be amended by an instrument signed by Owners having at least sixty percent (60%) of the votes
in the Association. Any such amendment shall be valid upon recordation in the Office of the Recorder of Deeds for the County of St. Charles, Missouri.
5. Reservation of Expenditures. Developer reserves the right to receive any money consideration which may be refunded or allowed on account of any sums previously expended or subsequently provided by it for joint main sewers, sanitary sewers, storm sewers, gas pipes, water pipes, conduits, poles, wires, street lights, roads, streets, traffic signals, recording fees, subdivision fees, consultation fees, or any fees, charges and expenses incurred with respect to the development and creation of the Subdivision.
6. Release. Developer may, in its sole discretion, release the Property, or any portion thereof, including, without limitation, any one or more Lots or Common Area, from the provisions of this Declaration, by amending the Declaration, as set forth in Section 4 above, and, if Developer deems it necessary, recording one or more revised or amended plats.
IN WITNESS WHEREOF, the undersigned has hereunto set its hands as of the day and year first above written.
WHITTAKER CONSTRUCTION, LLC
By _______________________________
John Bradford Goss, President
STATE OF MISSOURI )
) SS
COUNTY OF ST. CHARLES )
On this _______ day of _____________, 2_____, before me appeared John Bradford Goss, who being by me duly sworn, did say that he is the President of Whittaker Construction, LLC, a Delaware limited liability company, and that the seal affixed to the foregoing instrument is the seal of said company, and that said instrument was signed and sealed in behalf of said company by authority of its Members; and said John Bradford Goss acknowledged said instrument to be the free act and deed of said company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the County of St. Charles and State of Missouri, the day and year first above written.
______________________________________
Notary Public HELENA BETH MATTHEWS
My term expires: 10-23-03
CONSENT OF MORTGAGEE
The undersigned, FIRST BANK, organized and incorporated under the laws of the State of Missouri, being the holder of the Deed of Trust, recorded in Book ______, Page ______, in the Office of the Recorder of Deeds for St. Charles County, Missouri, on the real estate forming the subject matter of the foregoing Declaration, hereby consents to the recording of said Declaration and to the Plat recorded in Plat Book ______, Page ______ of the Office of the Recorder of Deeds for the County of St. Charles, Missouri and agrees that its said Deed of Trust shall be subject to the provisions of said Declaration and the exhibits appended thereto.
FIRST BANK
_____________________________________
_______________________, _____ President
Dated: __________________________
STATE OF MISSOURI )
) SS
COUNTY OF ______________ )
On this day of , 2001, before me personally appeared ___________________________________, to me personally known, who, being by me duly sworn, did state that ___he is the _________ President of FIRST BANK organized under the laws of the State of ___________________ and that the seal affixed to the foregoing instrument is the corporate seal of the corporation and that said instrument was signed and sealed on behalf of said corporation, by authority of its Board of Directors and said ___________________________________ acknowledges said instrument to be the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the County of _________________ and State of Missouri the day and year first above written.
_______________________________________
My term expires: _________________ Notary Public
Exhibit A
LEGAL DESCRIPTION
Part of Lot 1 of HAWK RIDGE BUSINESS PARK AND GOLF COURSE, as per plat thereof recorded in Plat Book 32 page 381 and being more particularly described as follows:
A tract of land being part of U.S. Surveys 825, Township 46 and 47 North, Range 2 East, City of Lake Saint Louis, St. Charles County, Missouri and being more particularly described as follows: COMMENCING at a point marking the Southwest corner of Hawk Ridge on the Green Plat Two as recorded in Plat Book 36 pages 269 through 272 of the St. Charles County Missouri Records; thence leaving said corner along the Southern line of said Hawk Ridge on the Green Plat Two and the Southern line of Hawk Ridge on the Green Plat One as recorded in Plat Book 36 pages 51 through 53 of the said St. Charles County Missouri Records, South 89 degrees 31’ 33” East a distance of 1546.64 feet to a point marking the Southeast corner of said Hawk Ridge on the Green Plat One; and being the POINT OF BEGINNING of the herein described tract of land; thence along the Eastern line of Hawk Ridge on the Green Plat One North 00 degrees 01’ 57” East a distance of 1169.18 feet to a point; thence leaving the Eastern line of said Hawk Ridge on the Green Plat One North 89 degrees 37’ 10” East a distance of 1549.56 feet to a point; thence South 00 degrees 02’ 14” West a distance of 167.36 feet to a point; thence South 25 degrees 19’ 52” West a distance of 178.39 feet to a point of curvature; thence along a curve to the left having a radius of 165.00 feet an arc distance of 114.23 feet, the chord of which bears South 05 degrees 29’ 52” West a chord distance of 111.96 feet to a point of tangency; thence South 14 degrees 20’ 08” East a distance of 57.95 feet to a point marking the Northeastern corner of Lot 8 of Hawk Ridge Business Park and Golf Course as recorded in Plat Book 32, page 381 of the said St. Charles County Missouri Records; thence along the Northern line of said Lot 8 and the Northern line of Lot 7 of said Hawk Ridge Business Park and Golf Course South 65 degrees 02’ 48” West a distance of 1188.62 feet to a point; thence along the Western line of said Lot 7 and the Western line of Lot 6 of said Hawk Ridge Business Park and Golf Course the following courses; South 26 degrees 33’ 11” West a distance of 225.00 feet to a point; thence South 00 degrees 09’ 55” West a distance of 156.52 feet to a point; thence South 79 degrees 13’ 51” East a distance of 192.92 feet to a point; thence South 28 degrees 05’ 33” East a distance of 142.77 feet to a point; thence South 00 degrees 09’ 55” West a distance of 390.39 feet to a point; thence North 89 degrees 50’ 05” West a distance of 103.20 feet to a point; thence North 00 degrees 14’ 04” East a distance of 63.07 feet to a point; then North 07 degrees 04’ 38” East a distance of 100.72 feet to a point; thence North 00 degrees 14’ 04” East a distance of 62.06 feet to a point of curvature; thence along a curve to the left having a radius of 300.00 feet, an arc distance of 337.46 feet, a chord of which bears North 31 degrees 59’ 28” West a chord distance of 319.95 feet to a point of reverse curvature; thence along a curve to the right having a radius of 300.00 feet, an arc distance of 297.53 feet, a chord of which bears North 35 degrees 48’ 18” West a chord distance of 285.48 feet to a point; thence North 89 degrees 58’ 03” West a distance of 127.52 feet back to the POINT OF BEGINNING.
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