New Mark First Pool
Covenants and Restrictions
Table of Contents
Declaration of Restrictions, New Mark
Section 1
Persons Bound by These Restrictions
Section 2 Use
of the Land
Section 3
Frontage of Residents on Streets
Section 4
Ground Frontage Required
Section 5
Setback of Residences from Streets and Side Lines
Section 6
Height of Residences
Section 7
Required Size of Residences
Section 8
Approval of Design and Location
Section 9
Exterior Appearance
Section 9.1 Exterior Antennas
Section 10
Fences
Section 11
Location of Utilities - Connections
Section 12
Temporary and Outbuildings Prohibited
Section 13
Livestock and Poultry Prohibited
Section 14
Signs and Billboards Prohibited
Section 15
Storage Tanks Prohibited
Section 16
Automobile Repair and Storage of Automobiles, Trailers, etc. Prohibited
Section 17
Nuisances
Section 18
Duration of Restrictions
Section 19
Right to Enforce
Section 20
Effect or Invalidity of a Portion of this Declaration
Section 21
Homes Association Declaration
Additional
Restriction of New Mark First Pool Association
New Mark First Pool Association
Declaration (as amended)
Article I:
Definitions
Article II:
Membership and Voting Rights
Article III:
Additional Lands. How They May Be Added
Article IV:
Management of The Association
Article V:
Powers, Rights, and Duties of the Association
Article VI:
Assessments
Article VII:
Additional Powers Given to the Association
Article VIII:
To Observe All Laws
Article IX:
Covenants Running with the Land
Article X:
Special Meetings
Article XI:
Termination
Acknowledgment
Declaration of Restrictions, New Mark
This
Declaration of Restrictions is made this 12th day of February, 1969, by
Bleakley-New Mark Development, Inc., a corporation, the owner of all property
in New Mark, a subdivision of land in Kansas City, Clay County, Missouri,
according to the recorded plat thereof.
Witnesseth:
WHEREAS,
Bleakley-New Mark Development, Inc. is vested with the fee simply title to a
certain tract of land situated in Clay County, Missouri;
WHEREAS,
Bleakley-New Mark Development, Inc., has heretofore executed a plat of New Mark
which is now recorded in the office of the Recorder of Deeds in and for the
County of Clay, State of Missouri;
WHEREAS,
Bleakley-New Mark Development, Inc., has heretofore dedicated all of the streets,
roads, terraces and drives shown on said plat of New Mark for use by the public
for streets or roads;
WHEREAS,
Bleakley-New Mark Development, Inc., intends to improve and develop a portion
of the above-described subdivision for high-class residential purposes with
single-family residences;
NOW,
THEREFORE, for itself and for its successors and assigns and for its and their
future grantees, Bleakley-New Mark Development, Inc. hereby declares that the
lands specifically designed below as shown on the recorded plat of New Mark
shall be and hereby are restricted as to their use in the manner hereinafter
set forth.
For the
purpose of these restrictions:
The term
"Developer" shall mean Bleakley-New Mark Development, Inc., its
successors and assigns.
The term
"Street" shall mean any street, road, or drive which is shown on the
plat of New Mark.
The term
"Out Building" shall mean an enclosed, covered structure not directly
attached to the residence to which it is appurtenant.
The term
"Lot" shall mean either (1) any lot as shown on the plat of New Mark
or (2) any tract or tracts of land as conveyed, consisting of one or more lots
or part or parts of one or more lots as platted, upon which a residence may be
erected in accordance with the restriction hereinafter established, or as
established in individual deeds from Bleakley-New Mark Development, Inc., or
from its successors and assigns.
The term
"Corner Lot" shall be deemed to mean any lot as platted or any tract
of land as conveyed having more than one street contiguous to it. The street
upon which the lot or part thereof fronts, as shown on the plat of New Mark,
shall be deemed to be the front street, and any other street contiguous to such
corner lot shall be deemed a side street. Houses on corner lots may be set
diagonally thereon.
The
"Front Building Line" shall be deemed to be that line parallel to the
front street as shown on the recorded plat of New Mark.
Section 1 Persons Bound by These Restrictions
All persons or corporations
who now own or shall hereafter acquire any interest in the residential lots
numbered:
Lots 1 through and including
27 of Block 1.
Lots 1 through and including
22 of Block 2.
Lots 1 through and including
27 of Block 3.
Lots 1 through and including
22 of Block 4.
Lots 1 through and including
5 of Block 5.
Lots 1 through and including
16 of Block 6.
Lots 1 through and including
31 of Block 7.
Lots 1 through and including
24 of Block 8.
Lots 1 through and including
32 of Block 9.
Lots 1 through and including
40 of Block 10.
Lots 1 through and including
16 of Block 11.
as shown on
the recorded plat of New Mark, a subdivision of land in Kansas City, Clay
County, Missouri, shall be taken to hold and agree and covenant with the owner
of said lots, and with its successors and assigns, to conform to and observe
the following covenants, restrictions and stipulations as to the use thereof
and the construction of residences and improvements thereon for a period of
time ending on December 31, 1990, provided, however, that each of said
restrictions shall be renewable in the manner hereinafter set forth.
Section 2 Use of the Land
None of the
lots referred to in Section 1 hereof shall be used or occupied for other than
single-family residence purposes. Any residence erected or maintained on any of
said lots shall be designed for occupancy by a single family.
Section 3 Frontage of Residents on Streets
Any residence
erected wholly or partially on a lot which is not a corner lot shall front on
the front building line. Any residence erected on a corner lot shall front on
the front building line and shall present a good appearance on the side
building line as shown on said plat; provided, however, that any residence
erected on a corner lot may be set diagonally thereon.
Section 4 Ground Frontage Required
No dwelling
may be erected upon any lot herein described except upon a lot or lots or part
or parts thereof with a street frontage of not less than the number of feet as
shown on the recorded plat; proved that the Developer shall have and does
hereby reserve the right in the sale and conveyance of any of the lots bound by
these restrictions to reduce the required frontage to be used with any
residence on any lot, and the Developer may, aat any time thereafter, with the
consent in writing of the then record owner of the fee simple title to any such
lot, change any required frontage herein specified or established by the
conveyance of said lot; however, no change may be made at any time that will
reduce the required frontage of land to be used and maintained with any
residence erected theron [sic] more than a ten (10) feet below the minimum
number of feet required for such residence as set forth above.
Section 5 Setback of Residences from Streets and Side Lines
No part of any
residence, except fireplace chimneys, porches, driveways and walk, may be
erected or maintained on any of said lots nearer to the front street of the
side street than the front building line or the side building line,
respectively, as shown on the plat of New Mark. No part of any residence, except
as provided in Section 10 dealing with fences, may be erected closer to the
side lines of any lot than is allowed by the zoning ordinances of the City of
Kansas City, Missouri. Provided, however, that the Developer may at any time
hereafter with the consent in writing of the then record owner of the fee
simple title to any such lot, change any building line that is shown on said
plat. Provided further that no change shall be made at any time which will
permit the erection or maintenance of any residence on any lot more than five
(5) feet nearer to the front street or five (5) feet nearer to a side street
than is the front building line or the side building line as shown on said
plat.
Section 6 Height of Residences
No residence
erected on any of lots hereby restricted may exceed two and one-half (2 1/2)
stories, nor be less than one full story in height without the written
permission of the Developer.
Section 7 Required Size of Residences
Any
single-family residence erected on any of the lots hereby restricted shall
contain not less than one thousand (1000) square feet of total floor area,
exclusive of porches, breezeways, basements, attics, or attached garages;
provided, however, that the Developer shall have and does hereby reserve the
right in the sale or conveyance of any said lots to change the required size of
the residence to be erected on said lots.
Section 8 Approval of Design and Location
No
construction shall be commenced upon any building, nor shall any building be
moved upon any lot, until the exterior design and materials to be used are
first approved in writing by the Developer. The Developer does hereby reserve
the right to determine the location of all buildings on the respective lot or
lots, as well as the relation of the top of the foundation to the street level.
All such approvals shall be in writing.
Section 9 Exterior Appearance
No building
shall be permitted to stand with its exterior in an unfinished condition for
longer than nine (9) months after the commencement of construction. In the
event of fire, windstorm or other damage, the exterior of no building shall be
permitted to remain in a damaged condition for longer than three (3) months.
Section 9.1 Exterior Antennas
(See
"Additional Restriction of New Mark First Pool Association" below.)
Section 10 Fences
No fence of
any kind or description shall be erected on any lot unless and until the
location, height and material to be used have been approved in writing by the
Developer. Any person desiring to construct a fence on any lot shall submit to
the Developer a written request for permission to construct a fence. The
request shall state the name and address of the owner of the lot on which the
proposed fence is to be constructed and the location, height, and materials to
be used in constructing the fence. The Developer shall, within thirty (30) days
after the date on which such request is received, give to the owner of the
property its written approval or disapproval of the request. In the event that
the Developer shall fail to give such written approval or disapproval with such
thirty day period, then permission to construct the fence described in the
notice shall be deemed to have been granted. It is expressly provided, however,
that no fence to be constructed along the boundary line of any lot shall exceed
four (4) feet in height.
Section 11 Location of Utilities - Connections
The Developer
shall have and does hereby reserve the right to locate, erect, construct,
maintain and use, or authorize the location, erection, construction, maintenance
and use of, drains, sanitary and storm sewers, gas and water mains and lines,
telephone and electric lines, and other utilities, and to give or grant
right-of-way, or easements therefore over and upon any part of said land
reserved for utility easements on the recorded plat. No connection of any kind
shall be made to any sewer line without prior inspection and approval by the
Developer, and all storm and sanitary sewer construction and connections shall
conform to the then current rules and regulations of the Sewer district within
which the subdivision lies.
Section 12 Temporary and Outbuildings Prohibited
No outbuilding
or other detached structure appurtenant to a residence may be erected on any of
said lots without the written consent of the Developer. Nor may any temporary
or incompleted [sic] building, nor any automotive equipment, trailer, garage or
appurtenance incident to a family dwelling be erected, maintained, or used for
residential purposes, either temporarily or permanently.
Section 13 Livestock and Poultry Prohibited
No livestock
or poultry may be kept or maintained on any of said lots without the consent in
writing of the Developer provided, however, that there may be maintained upon
any one lot at any one time no more than two (2) dogs and two (2) cats over
twelve (12) weeks of age, and no more than six (6) rabbits.
Section 14 Signs and Billboards Prohibited
No signs,
advertisements, billboards or advertising structures of any kind may be erected
or maintained on any of said lots without the consent in writing of the
Developer; provided, however, that not more than one advertising sign may be
erected and maintained on each lot or tract sold and conveyed. Such advertising
sign shall not be more than five (5) square feet in size and it may be used for
the sole and exclusive purpose of advertising for sale or lease the lot or
tract upon which it is erected.
Section 15 Storage Tanks Prohibited
No tanks for
the storage of fuel may be maintained above the surface of the ground on any of
the lots hereby restricted.
Section 16 Automobile Repair and Storage of Automobiles,
Trailers, etc. Prohibited
There shall be
no automobile repair conducted on any of the lots bound by these restrictions.
No automobiles, trailers, campers or boats shall be stored or kept outside of
any residence constructed on the lots subject to these restrictions without
prior written approval of the Developer.
Section 17 Nuisances
No noxious or
offensive activity shall be carried on upon any lot, nor shall anything be done
on any lot which is or may become an annoyance or nuisance to the neighborhood.
Section 18 Duration of Restrictions
The
restrictions herein set forth shall continue to be binding upon the Developer
and upon its successors and assigns until December 31, 1990, and shall
automatically be continued thereafter for successive periods of five (5) years
each, provided, however, that the owners of the fee simple title to more than
sixty percent (60%) of the lots bound by these restrictions may release all or
any part of the restrictions herein set forth, on December 31, 1990, or at the
end of any successive five-year period thereafter, by executing and
acknowledging an appropriate agreement or agreements in writing for each
purpose and filing same for record in the office of the Recorder of Deeds of
Clay County, Missouri, prior to December 31, 1990.
Section 19 Right to Enforce
The
restrictions herein set forth shall run with the land and bind the present
owner and its successors and assigns, and all parties claiming by, through or
under it shall be taken to hold, agree and covenant with the owner of the lots
hereby restricted, and with its successors and assigns, to conform to and
observe said restrictions as to the use of said lots and the construction of
improvements thereon, but no restriction herein set forth shall be personally
binding on any corporations, person or persons, except in respect to breaches
committed during its, his or their seisin of, or title to said land; and the
Developer and the owner or owners from time to time of any of the lots hereby
restricted, shall have the right to sue for and obtain an injunction,
prohibitive or mandatory, to prevent the breach of or enforce the observance of
the restrictions above set forth, in addition to ordinary legal actions for
damages; and the failure of the Developer or any owner or owners from time to
time of any lot or lots in this subdivision, to enforce any of the restrictions
herein set forth at the time of its violation shall in no event be deemed to be
a waiver of the right to do so thereafter.
Section 20 Effect or Invalidity of a Portion of this
Declaration
Invalidation
of any one or more of the foregoing restrictions or covenants by judgment or
court order shall in no manner affect any of the other provisions herein, and
all such other provisions shall remain in full force and effect.
Section 21 Homes Association Declaration
To insure the continuous availability of certain services
and convenience for New Mark property owners, and to provide the means for the
creation and maintenance of a residential neighborhood possessing features of
more than ordinary value, all lots in the New Mark development subject to these
restrictions are also subject to a Homes Association Declaration which is duly
filed of record.
IN WITNESS
WHEREOF, Bleakley-New Mark Development, Inc., by authority of its Board of
Directors, has caused these presents to be executed by its President and its
corporate seal to be hereto affixed this 12th day of February, 1969.
Additional Restriction of New Mark First Pool Association
The Board of
Directors of the New Mark First Pool Association at a meeting held on December
21, 1975, and the Board of Directors of New Mark First Home Association at a
meeting held on December 27, 1975, adopted a resolution approving a proposed
plan of merger as well as approving the following restriction in addition to
the Declaration of Restrictions of New Mark dated February 12, 1969, in Book
1101 at page 979.
The Plans of
Merger and the following additional restriction were approved by the members of
New Mark First Pool Association and New Mark First Homes Association at the
special meeting of the members of said Associations on January 24, 1976. New
Mark First Pool Association would be the surviving corporation.
The Articles of
the Merger were filed and Certificate of Merger was issued on April 19, 1976,
and was recorded in the Office of Recorder of Deeds of Clay County, Missouri,
on May 14, 1976, in Book 1215 at page 472, under document No. D27065.
The additional
restriction is as follows:
"No
exterior television or radio antenna of any sort shall be erected or maintained
on any lot. In the event a home does not have, in the judgment of the
Association, adequate room for placement in the attic or concealed area, this
rule can be waived in writing by the Association."
IN WITNESS
WHEREOF, New Mark First Pool Association, by the authority of its Board of
Directors, has caused these presents to be executed by its President and its
corporate seal to be hereto affixed.
New Mark First Pool Association Declaration
(as amended)
This
Declaration is made this 12th day of February, 1969, (amended September 25,
1970, July 30, 1971, and April 25, 1976) by Bleakley-New Mark Development,
Inc., a corporation, hereafter referred to as "Developer".
The Board of
Directors of The New Mark First Pool Association at a meeting held on December
21, 1975, and the Board of Directors of New Mark First Homes Association at a
meeting held on December 27, 1975, adopted a resolution approving a proposed
plan of merger as well as approving a number of proposed amendments to the New
Mark First Pool Association Declaration and The New Mark Homes Association
Declaration.
The plans of
merger were approved by the members of New Mark First Pool Association and New
Mark First Homes Association at the special meeting of the members of said
Associations on January 24, 1976. New Mark First Pool Association would be the
surviving corporation.
The Articles
of Merger were filed and Certificate of Merger was issued on April 19, 1976,
and New Mark First Pool Association is the surviving corporation.
The Board of
Directors of the New Mark First Pool Association at a meeting held on September
13, 1981, adopted a resolution to further amend the Declaration of said
Association and to present the amended Declaration to the Association members
for approval at the Association's annual meeting to be held January 10, 1982.
The Amendment
is to amend the New Mark First Homes Association Declarations filed for record
in the Office of the Recorder of Deeds of Clay County, Missouri, on March 10,
1969, in Book 1011, at page 987, under Document Number C-31896, and on October
26, 1970, in Book 1048, at page 532, under Document Number C-48752, and on
August 27l, 1971, in Book 1069, at page 450, under Document C-58342. this
amendment is also to amend the New Mark First Pool Association Declaration
filed for record in the Office of the Recorder of Deeds, Clay County, Missouri,
on March 10, 1969, in Book 1012, page 13, under Document Number C-31898, and on
October 26, 1970, in Book 1048, page 536, under Document Number C-48753, and on
August 27, 1971, in Book 1069, page 431, under Document Number C-58339, and on
June 3, 1976, in Book 1217, page 726, under Document Number D-28118.
WHEREAS, the
Developer is the owner of a tract of land located in Kansas City, Clay County,
Missouri, which tract of land the Developer intends to develop and improve in
general accord with the certain Community Unit Project Plan approved by the
City Council of Kansas City, Missouri, by Ordinance No. 35548 passed on the 6th
day of September, 1968, hereafter referred to as the "Plan";
WHEREAS, the
Developer has caused that portion of the property encompassed by the
aforementioned Community Unit Project Plan and referred to on said Plan as
"Stage 1" to be laid out and platted as New Mark, a subdivision of
land in Kansas City, Clay County, Missouri, which plat has been duly filed for
record as Document No. C-28650 in the Office of the Recorder of Deeds for Clay
County, Missouri, in Plat Book 13 at pages 22 through 23, inclusive;
WHEREAS, the
Developer intends that portions of the property platted as New Mark
("Stage1" of the aforementioned Community Unit Project Plan) will be
developed with single-family residences;
WHEREAS, the
Developer intends to construct a clubhouse and pool facilities on Tract C, New
Mark, and to convey said clubhouse and pool facilities to the New Mark First
Pool Association, a Missouri not for profit corporation, to hold and maintain
for the benefit of the owners and occupiers of the aforementioned single-family
residences; and
WHEREAS, the
New Mark First Pool Association joins in the execution and filing of this
Declaration for the purpose of accepting the duties and obligations imposed on
it by the terms hereof;
Now, therefore, the
Developer does by these presents subject the following described Lots, to the
Covenants, Charges and Assessments hereinafter set forth, to-wit:
Lots 1 through and including
27 of Block 1,
Lots 1 through and including
22 of Block 2,
Lots 1 through and including
27 of Block 3,
Lots 1 through and including
22 of Block 4,
Lots 1 through and including
5 of Block 5,
Lots 1 through and including
16 of Block 5,
Lots 1 through and including
31 of Block 7,
Lots 1 through and including
24 of Block 8,
Lots 1 through and including
32 of Block 9,
Lots 1 through and including
40 of Block 10,
Lots 1 through and including
16 of Block 11,
New Mark, a
subdivision of land in Kansas City, Clay County, Missouri, according to the
recorded Plat thereof.
Article I: Definitions
1.1
Association.
"Association" shall mean the New Mark First Pool Association, a
Missouri Not For Profit corporation, its successors and assigns.
1.2
Developer,
"Developer" shall mean Bleakley-New Mark Development, Inc., a
Missouri corporation, its successors and assigns.
1.3 Plan. "Plan" shall
mean the Community Unit Project Plan approved by the City Council of Kansas
City, Missouri, by Ordinance No. 35548, which Ordinance was passed the 6th day
of September, 1968.
1.4 Lot. "Lot" shall mean
those single-family residential Lots, including any part or parts thereof,
which are from time to time made subject to the terms of this Declaration.
1.5
Improved Lot.
"Improved Lot" shall mean any Lot, or part or parts thereof, on which
a residence not in violation of the restrictions then of record thereon is
erected or in the process of erection. All other Lots covered by this
Declaration shall be deemed to be "vacant" and
"unimproved."
1.6 Owners. "Owners" shall
mean those persons, firms or corporations other than the Developer, who or
which may from time to time hold record title to a Lot or Lots subject to the
terms of this Declaration, provided, however, that where, pursuant to a
financing arrangement, record title to a Lot is in a mortgagee, the term
"Owners" shall mean the mortgagor, and where, pursuant to a financing
arrangement, record title to property is in a trustee, the term
"Owners" shall mean the settlor or grantor who executed the deed of
trust.
1.7 Public
Places.
"Public Places" shall mean all parking areas located in public street
rights-of-way, all parks situated at street intersections and elsewhere, all
cu-de-sac and other roadway islands; and all similar places the use of which is
dedicated to or set aside for the use of the general public.
1.8
Association Property. "Association Property" shall mean all real property owned
from time to time by the Association. The Developer intends to erect a swimming
pool and certain other improvements on Tract C, New Mark, and then to convey
said property to the Association free and clear of all liens and encumbrances.
By the execution hereof, the Association Covenants and agrees that it shall
accept title to said Tract C; and it further agrees that it shall hold,
maintain and improve said property for the common use and benefit of the
members of the Association and occupiers of land owned by members of the
Association.
1.9 A
Living Unit.
"Living Unit" Means a single-family residence which is designed for
occupancy by a single family.
1.10
Members.
"Members" shall mean Members of the Association. Members of the
Association shall include (A) the developer, (B) the Owners of single-family
residential Lots subject to the terms of this Declaration.
In order that
the Association shall have funds with which to carry out the powers and duties
provided for by this Declaration the Association shall have the power to levy
Assessments against the Lots owned by each Member of the Association, which
Assessment shall be levied on the basis of the number of Lots owned by such
Member. In the event that an Assessment is not paid by a Member, the
Association shall have a lien on the Lot of the non-paying Member.
Article II: Membership and Voting Rights
2.1
Members.
Every owner of a Lot which is subject to Assessment shall be a member of the
Association. Membership shall be appurtenant to and may not be separated from
ownership of any Lot which is subject to Assessment.
2.11
Limitation of Membership. Membership in the Association shall be limited to the Owners of Lots
in S-1 and S-2, otherwise known as "Brooking North" and
"Brooking South."
2.2 Voting
Rights of Members. Owners shall be entitled to cast one vote for each Lot, which they own
subject to the terms of this Declaration, but in no event shall more than one
vote be cast for each Lot.
2.3
Easement of Enjoyment. Every owner shall have a right and easement of enjoyment in and to the
common area which shall be appurtenant to and shall pass with the title to
every Lot, subject to the following provisions:
(A) The right
of the Association to charge reasonable admission and other fees for the use of
any recreational facility situated upon the common area;
(B) The right
of the Association to suspend the voting rights and right to use of the
recreational facilities by an owner for any period during which any Assessment
against his Lot remains unpaid; and for a period not to exceed 60 days for any
infraction of its published rules and regulations;
(C) The right
of the Association to dedicate or transfer all or any part of the common area
to any public agency, authority, or utility for such purposes and subject to
such conditions as may be agreed to by the Members. No such dedication or
transfer shall be effective unless an instrument signed by two-thirds (2/3) of
Members agreeing to such dedication or transfer has been recorded.
Article III: Additional Lands, How They May Be Added
3.1
Addition of Land by Vote of Members. Additional lands may be added to the Association
from time to time and the Association may also unite or combine with other
homes Associations, provided that the addition of such lands or the uniting or
combining with other homes Associations, as the case may be, is first approved
by a two-thirds (2/3) majority vote of the Members voting at a meeting of the
Members of the Association duly called as hereinafter provided.
The vote of
the Members as required by this section shall be taken at either the annual
meeting or at a special meeting of the Members. If a special meeting is to be
held, written or printed notice stating the place, day and hour of the meeting
and the purpose or purposes for which the meeting is called shall be delivered
not less than five (5) nor more than forty (40) days before the date of the
meeting either personally or by mail.
Article IV: Management of The Association
The
Association shall be managed by a Board of Directors of not less than five (5)
in number and elected in accordance with the Article of Incorporation and
by-laws of the Association.
Article V: Powers, Rights, and Duties of the Association
5.1
Discretionary Powers and Duties. The Association shall have the following powers
and rights which can be exercised and assumed at its discretion:
5.101
Enforcement of Building Restrictions. The Association can enforce any or all building restrictions
which have been imposed or which may hereafter be imposed upon any of the land
subject to this Declaration. Said building restrictions may be enforced either
in the form in which they were originally placed on such property or as
modified subsequent thereto. However, nothing contained herein shall be deemed
to prevent the owner of any such property from enforcing any building
restrictions in his own name; the right of enforcement shall not serve to
prevent such changes, releases, or modifications of the restrictions or
reservations placed upon such property by any party having the right to make
such changes, releases or modifications in the deeds, contracts, or plats in
which such restrictions and reservations are set forth; and the right of enforcement
shall not have the effect of preventing the assigment of those rights by the
proper parties wherever and whenever such right of assignments exists. The
expense and costs of any enforcement proceedings initiated by the Association
shall be paid out of the general fund of the Association as hereafter provided
for. These costs shall be charged to the owner involved and constitute a lien
on the Lot or Lots involved.
5.102
Exercise Easements. The Association can exercise the rights and control over such
easements as it may acquire from time to time.
5.103 Rules
and regulations with respect to the use of facilities on Association Property. The Association can adopt
and enforce rules and regulations relating to the use of structures or
facilities which may exist or be erected from time to time on Association
Property and establish charges for the use of such facilities and structures.
5.104
Suspend voting rights and rights of Members to use facilities. The Association can suspend
the voting rights of Members and their rights to use facilities located on
Association Property for any period during which Assessments levied and due
from such member and against his Lot remain unpaid and suspend for a maximum of
60 days such member's rights to use recreational facilities located on
Association Property for an infraction of published rules and regulations of
the Association.
5.105
Defend and Bring Lawsuits. The Association can employ counsel and institute and prosecute such
suits as the Association may deem necessary or advisable and defend suits
brought against the Association.
5.106 Make
Contracts and Employ Agents. The Association can employ from time to time such
agents, servants, and laborers as the Association may deem necessary in order
to exercise the powers, rights and privileges granted to it and make contracts.
5.2
Mandatory Powers and Duties. The Association shall exercise the following powers, rights and
duties:
5.201
Maintenance of Public Places. The Association shall now, resow grass, care for
and maintain Public Places including but not limited to parking areas located
in the public street rights-of-way, parks situated at street intersections and
all cul-de-sac and other roadway islands. The Association shall remove weeds
and grass from Public Places; pick up and remove therefrom loose material,
rubbish, filth and accumulations of debris, and do any other thing necessary or
desirable in the judgment of the Association to keep such Public Places in neat
appearance and in good order.
5.202
Maintenance of Association Property. The Association shall mow and resow the lawns and
care for, spray, trim, protect, plant and replant trees and shrubs growing on
all property which may, from time to time, belong to the Association; pick up
and remove from such property all loose material, rubbish, filth and
accumulations of debris; and do any other thing necessary or desirable in the
judgment of the Association to keep all such property in neat appearance and in
good order.
5.203
Maintenance of Vacant Lots and Unattended Homes. It shall be the
responsibility of the respective Owners to mow, care for, and carry away from
all vacant, unimproved lots and unattended homes all weeds and unsightly
grasses or other growth, rubbish, filth and accumulations of debris, and other
things tending to create unsightliness or untidiness should it become necessary
for the Association to pay for any of the above care or maintenance for an
owner such cost or expense be charged to owner involved and shall constitute a
lien on the Lot or Lots involved.
5.3 Special
Rights and Powers. The Association shall have the power and right to build or construct
on land to which the Association holds title facilities for the benefit of the
Owners and occupiers of the land subject to the terms of this Declaration;
Provided, that the building or construction of such facilities if first
approved by a two-thirds (2/3) majority of the Members of the Association
voting at either the annual or at a special meeting of the Members. Special
meetings shall be called pursuant to the provisions of the Article VII hereof.
Article VI: Assessments
[6.1
Imposition of Regular Assessments. For the purpose of providing a general fund
to enable the Association to perform and exercise the rights, powers and duties
set out in Article V hereof, all Lots subject to this Declaration shall be
subject to an annual Assessment based upon the anticipated total annual cost of
the Association in carrying out the powers and duties provided for in Article V
above divided by the number of Lots subject to this Declaration. Assessments on
all Lots shall commence on the first day of the month following conveyance of
the common area to the First Pool Association. The amount of the annual
Assessment shall be an amount of money sufficient to enable the Association to
carry out the powers and duties provided for in Article V; provided however,
that the amount of an annual Assessment against each Lot owned by a member of
the Association shall not exceed one hundred thirty-two dollars ($132.00). It
is further provided that until Lots have a Living Unit erected on them which
has been once occupied, said Lots shall be subject to an annual Assessment of
twenty-five percent (25%) of the regular unit Assessment.
The amount of
the annual Assessment may be increased above the sum of one hundred thirty-two
dollars ($132.00) for each Lot provided that such increase is first approved by
a two-thirds (2/3) majority vote of the Members of the Association taken at
either the annual or at a special meeting of the Members. Special meetings
shall be called pursuant to the provisions of the Article VII hereof.]
6.1
Imposition of Regular Assessments. For the purpose of providing a general fund to
enable the Association to perform and exercise the rights, powers and duties set
out in Article V hereof, all Lots subject to this Declaration shall be subject
to an annual Assessment based upon the anticipated total annual cost of the
Association in carrying out the powers and duties provided for in Article V
above divided by the number of Lots subject to this Declaration. Assessments on
all Lots shall commence on the first day of the month following conveyance of
the common area to the First Pool Association. The amount of the Annual
Assessment shall be an amount of money sufficient to enable the Association to
carry out the powers and duties provided for in Article V; provided however,
that the amount of an annual Assessment against each Lot owned by a member of
the Association shall not exceed two hundred seventy-five dollars ($275.00). It
is further provided that until Lots have a Living Unit erected on them which
has been once occupied, said Lots shall be subject to an Annual Assessment of
twenty-five percent (25%) of the regular unit Assessment.
The amount of
the Annual Assessment may be increased above the sum of two hundred
seventy-five dollars ($275.00) for each lot provided that such increase is
first approved by a fifty-one percent (51%) majority vote of the members of the
Association taken at either the annual or a special meeting of the members.
Special meetings shall be called pursuant to the provisions of the Article VII
hereof. [Note: Amended 12/5/2000]
6.2 Notice. Notice of the amount of
Assessments against the Lot held by a particular owner shall be deemed
sufficient if a written or printed notice of the amount of said Assessment is
deposited in the United States Post Office, with postage prepaid, and addressed
to the respective Lot Owners at their last known address.
6.3 When
Assessments Levied and Due. The annual Assessments shall be fixed and levied for each fiscal year.
The first Assessment shall be for the fiscal year beginning January 1, 1970.
Assessments for each fiscal year shall be fixed and levied at least forty-five
(45) days prior to January 1 of the fiscal year to which they apply.
Assessments shall be due and payable on the first day of January for the fiscal
year to which they are applicable and shall be delinquent thirty (30) days
thereafter. On or before December 1 of each year, The Association shall notify
each member owning a Lot subject to Assessment at such member's last known
address, this notice shall state the number of Lots with respect to which an
Assessment has been levied, the amount of Assessment per Lot, the total amount
of the Assessment owed by each member, and the fact that the Assessment is due
on January 1 of the approaching calendar year.
It is
provided, however, that the failure of the Association to make an Assessment
prior to December 1 of any year for the approaching fiscal year shall not
invalidate any such Assessment subsequently made for that fiscal year; nor
shall the failure to make an Assessment for any one year affect the right of
the Association to do so for any subsequent year. In the event that an
Assessment is made later than thirty-one (31) days prior to the beginning of
the fiscal year to which it applied, then the Assessment shall be due and
payable not later than thirty (30) days from the date that the notice of the
Assessment is mailed to the member. Said Assessment shall be delinquent thirty
(30) days after such Assessment is due and payable.
6.4 [Lien on
Real Estate. All Assessments shall be the personal obligations of the
Association member, and the Assessment shall become delinquent and constitute a
lien on the Lot for which the Assessment is owed thirty (30) days after the
date on which the Assessment is due and payable as set forth in section 6.3. In
the event that any property owner fails to pay the Assessment on or before the
date it becomes delinquent, then such Assessment shall bear interest at the
greater of the rate of then percent (10%) per annum or the "Market
Rate," as defined by applicable Missouri Statute, determined as of the
date when such Assessment shall first become delinquent.]
6.4 Lien on
Real Estate.
All assessments shall be the personal obligations of the Association Member,
and the assessment shall become delinquent and constitute a lien on the lot for
which the assessment is owed thirty (30) days after the date on which the
assessment is due and payable as set forth in Section 6.3. In the event that
any property owner fails to pay the assessment on or before the date it becomes
delinquent, then such assessment shall bear interest at the greater of the rate
of ten percent (10%) per annum or the "Market Rate", as defined by
applicable Missouri Statute, plus an additional $15.00 per month, determined as
of the date when such assessment shall first become delinquent. [Note: Amended
12/5/2000].
Assessments
not paid within thirty (30) days from the date the Assessment is due and
payable shall be delinquent and payment of both principal and interest may be
enforced as a lien on the owner's Lot in proceedings in any court in Clay
County, Missouri, having jurisdiction of suits for the enforcement of such liens.
Lien amounts shall include attorney's fees, court costs, and any other related
costs incurred. If the property subject to the lien is sold before the
Assessment is paid, the buyer shall be liable for the Assessment. Any
unsatisfied liens shall "Run With The Land." It shall be the duty of
the Association to bring suit to enforce such liens as soon as they become
delinquent.
Subordination
of the Lien to Mortgages. The lien of the Assessments provided for herein shall
be subordinate to the lien of any first mortgage. Sale or transfer of any Lot
shall not affect the Assessment lien. 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 as to payments which become due prior
to such sale or transfer. No sale or transfer shall relieve such Lot from
liability for any Assessments thereafter becoming due or from the lien thereof.
6.5
Termination of Liens. Assessment liens shall continue for the period of one (1) year from
the date upon which they become delinquent, and no longer; provided, however,
that if, within the period of one (1) year from the date of delinquency, suit
shall have been instituted for the the collection of the Assessment, such liens
shall continue until the termination of the suit, and until the sale of
property under execution of the judgment establishing it.
6.6
Limitation on the amount of expenditures. The Association shall at no time spend or contract
to spend within any one year an amount which exceeds the total amount of
Assessment for that particular year and any surplus which the Association may
still hold from previous Assessments.
6.7 Special
Assessment to pay the cost of construction of facilities or improvements to
Association Property. The Association shall have the power to levy Assessment against the
Lots subject to this Declaration for the purpose of constructing improvements
or facilities on Association Property; provided that the construction of such
facility or improvement must be first approved by the Members of the
Association in the manner set forth in section 5.3 hereof.
Special
Assessments levied by the Association under this section shall become due and
payable thirty (30) days after written notice to each member at such member's
last known address stating the amount of the Assessment against each Lot, the
total number of Lots for which the member is being assessed, the total amount
of the Assessment due from such member, and that the Assessment is due and
payable thirty (30) days after the date of the notice.
Special
Assessments levied under this section shall be the personal obligation of the
Association Member, and the Assessment shall become delinquent and shall be a
lien on the Lot of each member against whom the Assessment has been levied
thirty (30) days after the date upon which the Assessment is due and payable.
In the event an owner fails to pay a special Assessment before the date on
which the Assessment becomes delinquent, then the Assessment shall bear
interest at the greater of the rate of ten percent (10%) per annum or the
"Market Rate," as defined by applicable Missouri Statute, determined
as of the date when such Assessment shall first become delinquent. After a
special Assessment is delinquent, payment of both principal and interest may be
enforced as a lien on the Lot of such member in any court in Clay County,
Missouri, having jurisdiction for the enforcement of such liens. Lien amounts
shall include attorney's fees, court costs, and any other related costs incurred.
If the property subject to the lien is sold before the Assessment is paid, the
buyer shall be liable for the Assessment. Any unsatisfied liens shall "Run
With the Land."
Article VII: Additional Powers Given to the Association
[The
Association may be given such additional powers as may be desired by the
Members and any portion of this instrument may be amended by the affirmative
vote of a two-thirds (2/3) majority of Members of the Association, as evidenced
by a written instrument executed, acknowledged and recorded in the Office of
the Recorder of Deeds of Clay County, Missouri, voter eligibility is defined in
Article II hereof, and the vote referred to herein shall be taken at either the
annual or a special meeting of the Members.]
The
Association may be given such additional powers as may be desired by the
Members and any portion of this instrument may be amended by the affirmative
vote of (51%) majority of Members of the Association in person or proxy at any
annual meeting provided that the place, date and hour of the meeting and the
proposed amendment has been delivered to each member of the Association not
less than fifteen (15) days prior to the meeting and such amendment shall be
evidenced by a written instrument executed, acknowledged and recorded in the
Office of the Recorder of Deeds of Clay County, Missouri, voter eligibility is
defined in Article II hereof, and the vote referred to herein shall be taken at
either the annual or a special meeting of the Members. [Note: Amended
12/5/2000]
Article VIII: To Observe All Laws
The
Association shall at all times observe all State, County and other laws. If at
any time any of the provisions of this agreement shall be found in conflict
with the laws of the State, County or any other duly constituted authority,
then such provisions shall become null and void. However, other provisions of
this agreement, not in conflict with the laws of any duly constituted
authority, shall not be affected.
Article IX: Covenants Running with the Land
All the
provisions of this Declaration shall be deemed to be Covenants running with the
land, and shall be binding upon the parties hereto and upon their heirs,
successors, and assigns.
Article X: Special Meetings
[Special
meetings of the Members of the Association may be called by the president of
the Board of Directors of the Association or by that proportion of the Members
of the Association entitled to cast one-twentieth (1/20) of the votes which can
be voted at such meeting. If a special meeting is to be held, written or printed
notice stating the place, day and hour of the meeting and the purpose or
purposes for which the meeting is called shall be delivered to each member of
the Association, either personally or by mail, not less than five (5) nor more
than forty (40) days before the date of the meeting. At the first such meeting
called, the presence of Members or of proxies entitled to cast sixty percent
(60%) of all the votes of the membership shall constitute a quorum. If the
required quorum is not present, another meeting may be called subject to the
same notice requirement, and the required quorum at the subsequent meeting
shall be one-half (1/2) of the required quorum at the preceding meeting. No
such subsequent meeting shall be held more than sixty (60) days following the
preceding meeting.]
Special
meetings of the Members of the Association may be called by the president of
the Board of Directors of the Association or by that proportion of the Members
of the Association entitled to cast one-twentieth (1/20) of the votes which can
be voted at such meeting. If a special meeting is to be held, written or
printed notice stating the place, day and hour of the meeting and the purpose
or purposes for which the meeting is called shall be delivered to each member
of the Association, either personally or by mail, not less than five (5) nor
more than forty (40) days before the date of the meeting. At the first such
meeting called, the presence of Members or of proxies entitled to cast 51% of
all the votes of the membership shall constitute a quorum. If the required
quorum is not present, another meeting may be called subject to the same notice
requirement, and the required quorum at the subsequent meeting shall be
one-half (1/2) of the required quorum at the preceding meeting. No such
subsequent meeting shall be held more than sixty (60) days following the
preceding meeting. [Note: Amended 12/5/2000]
Article XI: Termination
This
Declaration may be terminated, and all of the land now or hereafter affected
may be released from all of the terms and provisions of this Declaration by an
affirmative vote of Owners constituting two-thirds (2/3) of the total number of
eligible vogtes as defined in Article II. This Declaration shall be terminated
if the Owners constituting two-thirds (2/3) of the total number of eligible
votes as defined in Article II execute and acknowledge an apropriate agreement
or agreements for that purpose and file the same in the Office of the Recorder
of Deeds of Clay County, Missouri.
In witness
whereof, New Mark First Pool Association, by the authority of its Board of
Directors, has caused these presents to be executed by its president and its
corporate seal to be hereto affixed.
S/S
Lee C.
Magnuson, President
(seal)
S/S
Willy
Vanderhoorn
Acknowledgment
I, Willy
Vanderhoorn, duly elected secretary and keeper of the records and corporate
seal of New Mark First Pool Association, A Missouri Corporation organized and
operating pursuant to the provisions of the "General Not For Profit
Corporation Law" of the State Of Missouri (Chapter 355 of Missouri Revised
Statutes), do hereby certify that at an annual meeting of Members, duly called
by the Board of Directors pursuant to notice as to place, day, and hour, and
specific purposes thereof according to the provisions of the Missouri Revised
Statutes, and the requirements of the By-Laws, and held on January 10, 1982, a
quorum of Members entitled to vote was present in person or by proxy and did
vote to amend the New Mark First Pool Association Declarations and its
amendments in the above-stated respects.
In witness
whereof, I have affixed the corporate seal hereto, as secretary, this 12th day
of January, 1982.
S/S
Willy Vanderhoorn, Secretary
New Mark First Pool
Association
A Missouri Not-For Profit
Corporation
State of Missouri )
SS. )
County of
Clay )
On this 12th
day of January, 1982, before me appeared Willy Vanderhoorn, to me personally
known, who being by me duly sworn, did say that she is the Secretary of New
Mark First Pool Association, a Missouri Not-For-Profit Corporation, and that
the seal affixed to the foregoing instrument is the corporate seal of said
corporation by authority of its Board of Directors, and said Willy Vanderhoorn
acknowledged said instrument to be the free act and deed of said corporation.
In witness
whereof, I have hereunto set my hand and affixed my notarial seal at my office
in Clay County, Missouri, the day and year last above written.
S/S
Kathleen M,
Engle, Notary Public
My Commission Expires:
December 3, 1985