Covenants, Conditions, & Restrictions 

 
This amended declaration made this 24th day of January, 2020, by New Mark Development Co. Inc. a Missouri Corporation (successor to Bleakley New Mark Development, Inc.), the undersigned owners of lots located in Tact AP-1 New Mark and joined in by New Mark First Townhouse Association, a Missouri not-for-profit corporation.
 
WHEREAS Bleakley New Mark Development, Inc., did subject:
                   All of Tract AP-1 New Mark, a subdivision of land in Kansas City, Clay County, Missouri to the provisions and restrictions contained in the original Declaration dated April 21, 1969 and recorded April 29, 1969 in Book 1015, page 452 in the office of the Recorder of Deeds, Clay County, Missouri, and whereas said Declaration was amended by a Document recorded August 27, 1971 in Book 1069, page 437; and
 
WHEREAS New Mark Development Company, Inc., (successor to Bleakley New Mark Development, Inc.) together with the undersigned owners presently own at least 90% of the lots in Tract AP-1 New Mark, and desire to amend above-mentioned Declaration in its entirety.
 
NOW THEREFORE, the NEW MARK FIRST TOWNHOUSE ASSOCIATION DECLARATION OF EASEMENTS, COVENENTS, CONDITIONS AND RESTRICTIONS TRACT AP-1 NEW MARK shall read in its entirety as follows and any provision contained in the prior Declaration, as amended, which is not set forth herein is eliminated.
 
DEFINITION OF TERMS USED
 
As used in this Declaration, unless the context otherwise requires:
 
Association.  “Association” shall mean the New Mark First Townhouse Association, a Missouri not-for-profit corporation, its successors and assigns.
Association Property.  “Association Property” shall mean all property, whether real, personal or mixed, owned from time to time by the Association including “private streets” and lands held and maintained for the benefit of “owners” of “lots” and “townhouse units” in the subdivision.
Developer. “Developer” shall mean New Mark Development Company, Inc., a Missouri corporation, its successors and assigns.
Plan. “Plan” shall mean that community unit project plan approved by the City Council of Kansas City, Missouri by Ordinance No. 35548, which was duly passed on the 6th day of September 1968.
First Certificate of Survey. “First Certificate of Survey” means that Certificate of Survey filed for record on the 7th day of April 1969, as Document No. C-32818 in Book 13 at Page 45 in the Office of the Recorder of Deeds of Clay County, Missouri, being a survey of TRACT AP-1 of NEW MARK, a subdivision of land in Kansas City, Clay County, Missouri according to the recorded plat thereof, as the same may be amended.
Second Certificate of Survey. “Second Certificate of Survey” means a recorded “Certificate of Survey” of one or more “blocks”, or portions thereof, which designates by metes and bounds the location of “lots” and Association property.
 
Individual “lots and “housing units” will be sold or leased by the Developer or a “Builder”.  The conveyance or lease will be made by reference to (1) a particular “lot”, the location of which will be designated by metes and bounds on a recorded “Second Certificate of Survey”;  (2) a particular “block”, the location of which is designated by metes and bounds on the First Certificate of Survey; and (3) TRACT AP-1 NEW MARK, a subdivision of land in Kansas City, Clay County, Missouri, according to the recorded plat thereof.
 
All that property encompassed by each “Second Certificate of Survey” but not divided into “lots” will become “Association property”. This “Association property will at some time be conveyed by the Developer to the Association to be held and maintained for the benefit of the “owners” of “lots” and “housing units” in the “subdivision”.
 
Subdivision. “Subdivision” means TRACT AP-1 NEW MARK.
Block. “Block” means a single tract as designed by separate number and located by metes and bounds on the First Certificate of Survey.
Lot. “Lot” means that portion of a block as designated by separate letter or number and located by metes and bounds on a Second Certificate of Survey.
Housing Unit. “Housing Unit” shall mean a living unit designed for occupancy by a single family and shall include townhouse units and patio homes.
Townhouse Unit. “Townhouse Unit shall mean a living unit designed for a single family residence which is located in a Townhouse Building.
Patio Home. “Patio Home” means a separate living unit designed for single family residence.
Owner. “Owner” means that person, firm or corporation whom or which may from time to time hold record title to a lot within the subdivision. Provided, that where, pursuant to a financing arrangement, a security interest or record title to a lot is in a mortgagee or trustee, the term owner shall mean the mortgagor or the settlor who executed the mortgage or deed of trust.
Member. “Member” shall mean the Developer and other persons, firms or corporations who are, from time to time, members of the Association as hereinafter provided.
Builder. “Builder” means any person, firm or corporation to whom the Developer sells all or a portion of one or more blocks for the purpose of construction one or more townhouse buildings in conformity with and subject to the easements, convenants, conditions, restrictions, reservations and assessments contained in this Declaration.
Public Places. “Public Places” shall mean all public streets, parks at street intersections and elsewhere and all similar places within the subdivision, the use of which has been or may at a future date be dedicated to or set aside for the use of the general public.
Private Streets. “Private Streets” shall mean private streets within the subdivision the location of which is designated on a Second Certificate of Survey.
Utility Lines. “Utility Lines” shall mean all lines, pipes, conduits, meters and other facilities being used from time to time for the purpose of providing sewage, electricity, gas, water, telephones and other services to individual lots and townhouse units.
Out Building. “Out Building” shall mean an enclosed, covered structure not directly attached to a housing unit.
Party Wall. “Party Wall” shall mean that common wall or walls between townhouse units built on a dividing line between lots.
 
ARTICLE I
UTILITY EASEMENTS, EASEMENTS FOR MINOR ENCROACHMENTS,
 EASEMENTS FOR INGRESS AND INGRESS TO LOTS AND ASSOCIATION EASEMENTS
 
Section 1. Utility Easements.
                   The developer or a Builder will install lines, pipes, conduits, meters and other facilities (hereafter referred to as “utility lines” for the purpose of providing sewage, electricity, gas, water, telephone, and other services to individual lots and housing units.  One or more such utility lines may serve all of the lots and housing units located in a particular block, or portion of a block. To insure that such utility lines may be kept, maintained, restored, repaired and replaced, the Developer hereby establishes and reserves to itself, its successors and assigns, to the owner from time to time of each lot in the subdivision, and to the Association, the following easements.
 
An easement to keep, maintain, restore, repair and replace any such utility line over, under and across any lot and an Association property; and
An easement for ingress and egress over, under and across any lot and any Association property for the purpose of maintaining, restoring, repairing or replacing any utility lien and for the purpose of reading any meter installed with respect to any utility line.
 
Provided however, that the exercise of the easements reserved in this section shall be subject to the following terms and conditions:
If, in order to maintain, restore, repair or replace a utility line which serves only one lot, it becomes necessary to break through walls, excavate or otherwise damage a housing unit or Association property entered, the damages caused by such entry shall be repaired and the housing unit or Association property entered shall be restored to its former condition at the expense of the owner whose lot and housing unit is served by such utility line.
If it becomes necessary to maintain, restore, repair or replace a utility line which serves more than one lot or housing unit, then the cost of such maintenance, restoration, repair or replacement, and the cost to repair and restore to its former condition any lot or housing unit or Association property entered shall be shared equally by the owners of the lots and housing units served by such utility line, except that where the maintenance, restoration, repair or replacement of a utility line serving two or more lots and housing units is made necessary by the negligent or willful act of a single owner, his family, licensees or invitees, then the full cost to repair and restore to its former condition any lot or housing unit or Association property entered shall be borne by such owner.
The Association shall have the power and right to maintain, restore, repair or replace any utility line which serves more than one lot or housing unit and to assess the owners of the lots served by such utility line for their share of the cost of such maintenance, restoration, repair or replacement and for the cost to repair and restore any lot or housing unit or Association property entered. The manner in which such special assessments are to be levied is set forth in Article III, Section 4.201 of this Declaration.
 
Section 2. Easements for Minor Encroachments.
                   Individual lots shall be conveyed by reference to a Second Certificate of Survey prepared and recorded as construction is completed. The Second Certificate of Survey may contain minor errors with respect to the exact location of housing units and other improvements. If any portion of an adjoining housing unit or other improvement as originally constructed by the Developer or by a Builder encroachment, on a lot in the subdivision, a valid easements for said encroachment, and for the maintenance of the same, shall exist for so long as the event that any housing unit or other improvement as originally constructed is partially or totally destroyed, and then reconstructed, the minor encroachments on a lot of an adjoining housing unit or other improvement as reconstructed shall be permitted, and a valid easement for said encroachment, and for the maintenance of the same shall exist.
 
Section 3. Easement for Ingress and Egress to Lots.
                   The Developer hereby establishes and reserves to itself, its successors and assigns, to each owner from time to time of a lot in the subdivision, and to the Association, its successors and assigns, an easement for the ingress and egress to each lot in the subdivision over and across the private streets as designed on a Second Certificate of Survey. Said easement for ingress and egress shall be appurtenant to each lot.
 
Section 4. Association Easement.
                   The Developer hereby grants and conveys an easement to the Association, its successors and assigns, over, under and across any undeveloped block and any lot in the subdivision for the purpose of purposes of executing any of the powers, rights or duties granted to or imposed on the Association by the terms of this Declaration, including, but not limited to those powers, rights and duties granted to or imposed on the Association in Article III hereof.
 
ARTICLE II –PARTY WALLS
 
                   Each townhouse unit to be constructed in the subdivision will have at least one wall in common with an adjoining townhouse unit, which common wall or walls will be built on the dividing line between lots.  Each such common wall shall be a party wall; and the rights and obligations of the owners of such party walls shall be as follows:
 
Section 1. General Rules of Law to Apply.
                   To the extent not inconsistent with this Article, the general rules of law of Missouri regarding party walls shall apply.
 
Section 2. Ordinary Repairs and Maintenance.
                   The cost of ordinary repairs and maintenance of a party wall shall be borne equally by the owners thereof.
 
Section 3. Destruction by Fire or Other Casualty.
                   A party wall damaged or destroyed by fire or other casualty shall be repaired or replaced by the owners thereof, and the cost of such repairs or replacement shall be borne equally by said owners, provided, that an owner shall have the right to call for a larger contribution from the other owner under any applicable rule of law regarding liability for negligent or willful acts or omissions.
 
Section 4. Weatherproofing.
                   Any other provision of this Article notwithstanding, an owner who by his negligent or willful act causes a party wall to be exposed to the elements shall bear the whole cost of furnishing the necessary protection against such elements and of repairing any damage to the wall having been caused by such exposure.
 
Section 5. Right to Contribution to Run with the Land.
                   The right of an owner to contribution from another owner under this Article shall be appurtenant to the land and pass to such owner’s successors in interest in said land.
 
ARTICLE III – NEW MARK FIRST TOWNHOUSE ASSOCIATION
 
                   To insure the development and maintenance of the subdivision as a residential community possessing features of more than ordinary value, the Developer has caused the formation and incorporation of the New Mark First Townhouse Association, a not for profit corporation under The General Not for Profit Corporation Law, Chapter 355, R.S.MO. The New Mark First Townhouse Association (hereafter referred to as “Association”) shall have the following powers, rights and duties:
 
 
 
Section 1. Membership and Voting Rights.
Membership.  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.
 Voting Rights of Members. The owner or owners of each lot (including developer) shall be entitled to cast one vote per lot owned. If more than one person owns a lot, the owners shall determine among themselves the method of casting their vote, but in no event shall more than one vote per lot be cast.
 
Section 2. Management.
                   The Association shall be managed by a Board of Directors of not less than five (5) in number, elected in accordance with the Articles of Incorporation and By-laws of the Association.
 
Section 3. Rights, Powers and Duties of the Association.
3.1 Discretionary Powers.  The Association shall have the following powers and rights, which may be exercised at its discretion:
 
3.101 Enforcement of Building Restrictions. To enforce any or all building restrictions which are imposed by the terms of this Declaration or which may hereafter be imposed on any land in the subdivision. Provided, that nothing contained herein shall be deemed to prevent the owner of any lot in the subdivision 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 property in the subdivision by any party having the right to make such changes, releases or modifications in the deeds, contracts, declarations or plats in which such restrictions and reservations are set forth; and the right of enforcement shall not have the effect of preventing the assignment of those rights by the proper parties wherever and whenever such right of assignment 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.
 
3.102 Snow Removal. To provide for the plowing or removal of snow from the streets, private streets, and parking areas in the subdivision.
 
3.103 Lighting. To provide such light as the Association may deem advisable on streets, private streets, driveways, parking, entrances, and Association property and in public places within the subdivision.
 
3.104 Maintenance of Facilities on Association Property. To provide for the maintenance of any and all improvements, structures or facilities which may exist or be erected from time to time on any Association property.
 
3.105 Rules and Regulations. The use of Association property and any improvements, structures or facilities erected thereon shall always be subject to the general rules and regulations established and prescribed by the Association and subject to the establishment of charges for their use.
 
3.106 Suspend Voting Rights and Rights of Members to Use Facilities. The Association can suspend the voting rights of members and their rights to use Association facilities or receive Association services for any period during which assessments levied and due from such member and against his lot remain unpaid and also suspend such member’s rights to use recreational facilities located on Association property for an infraction by the member of his family or published rules and regulations of the Association.
 
3.107 Maintenance of Vacant Blocks. To mow, care for and carry away from all vacant and unimproved blocks, or portions thereof, in the subdivision, all weeds and unsightly grasses or other growth, rubbish, filth and accumulations of debris and all other things tending to create unsightliness and untidiness.  Such maintenance shall be done at the expense of the person, firm or corporation who or which holds title to the vacant and unimproved property, if such person, firm or corporation fails or refuses to remedy the untidy or unsightly condition after ten (10) days’ written notice mailed, postage prepaid, to such person at his last known address.  The cost incurred by the Association to maintain a vacant block, or portion thereof, shall be levied as a special assessment against the land of the person, firm or corporation failing to maintain the property in a neat and tidy condition. This special assessment shall be levied and shall be a lien against the property.
 
3.108 Maintenance of Public Places. To provide for the maintenance of public places which may exist in the subdivision from time to time.
 
3.109 Exercise Easements. To create, grant and convey easements upon, across, over and under all Association properties including, but not limited to, easements specifically reserved to the Association in Article 1, Section 4 hereof.
 
3.110 Grant Easements. To create, grant and convey easements upon, across, over and under all Association properties including, but not limited to, those easements for the installation, replacement, repair and maintenance of utility lines serving lots in the subdivision.
 
3.111 Defend and Bring Lawsuits. To employ counsel and institute and prosecute such suits, as the Association may deem necessary or advisable, and to defend suits brought against the Association.
 
3.112 Make Contracts and Employ Agents. To 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 to make contracts.
 
3.2 Mandatory Powers and Duties. The Association shall exercise the following rights, powers, and duties.
 
3.201 Care and Maintenance of Lots. To mow and re-sow the lawns and to care for, spray, trim, protect, plant and to replant trees and shrubs growing on lots in the subdivision, and to pick up and remove all loose material, trash and rubbish of all kinds form said lots. An easement for said purposes is granted and conveyed to the Association in Article 1, Section 4 hereof.
 
3.202 Care for and Maintain Association Property. To mow and re-sow the grass and to care for, spray, trim, protect, plant and replant trees and shrubs growing on Association property and to pick up and remove from Association property all loose material, rubbish, filth and accumulations of debris; and to do any other thing necessary or desirable in the judgment of the Association to keep Association property in neat appearance and in good order.
 
3.203 Accept Title to Real Estate in the Subdivision Not sub-divided into Lots. To accept title to those portions of block in the subdivision not subdivided into lots and to hold and administer said property for the benefit and enjoyment of the owners and occupiers of lots in the subdivision.  The Developer intends to convey to the Association those portions of blocks in the subdivision, which are not subdivided into individual lots containing townhouse units. The purpose of this provision is to impose on the Association the obligation to accept title to said lands and to hold and maintain the same for the benefit of owners and occupiers of lots in the subdivision.
 
3.204 Repair and Maintenance of Streets and Sidewalks. To repair, maintain, repave or reconstruct all private streets, lanes, circles, cul-de-sacs, sidewalks and other ways commonly used for pedestrian or vehicular traffic which are located on Association property.
 
3.205 Funds to be Earmarked Specifically for the Maintenance of Streets and Sidewalks.  Amendment to Declaration of Easements, Covenants, Conditions and Restrictions, January 26, 2017 to take effect January 1, 2018:  A separate savings account or money market account shall be used specifically for the repair, improvement or reconstruction of any or all private streets, lanes, circles, cul-de-sacs, sidewalks or parking lots which are Association property.  This account shall be funded on a yearly basis in the amount of $8,404.00 from the annual Assessment of all Association Members.  These funds may only be used for the above purposes unless a majority vote of the Association Membership shall determine these funds may otherwise be used.  Over time this special “Streets Account” shall increase in dollar value and shall be maintained for future repairs, improvement or reconstruction as stated above.
 
3.3 Maintenance of Exteriors of Townhouse Buildings and Patio Homes. The Association shall be authorized but shall not be obligated to maintain the exterior of townhouse buildings as needed, including but not limited to the maintenance, painting, restoration, repair and replacement of roofs, gutters, downspouts, exterior building surfaces, driveways and sidewalks.  No owner or person in possession of a housing unit, or their agent, shall perform any exterior maintenance, painting, repair, replacement or restoration thereof without obtaining prior written approval of the proposed maintenance (including color schemes) from the Board of Directors of the Association. Any such work done without approval of the Board of Directors may be redone by the Association at the expense of the owner. Any easement over and across lots in the subdivision is granted and conveyed to the Association, its successors and assigns for the purpose of maintaining the exteriors of townhouse buildings in Article 1, Section 4. The cost of all such maintenance performed by the Association shall be paid through special assessments levied against the lots and housing units benefited thereby and pursuant to the provisions of Article III, Section 4.201.
 
3.4 Special Powers and Duties, Construction of Improvements and Facilities. The Association shall have the power and right to build and construct on any Association property swimming and wading pools, picnic areas, putting greens, tennis courts, playgrounds, a master television antenna system or any other improvement or facility for the benefit of the owners and occupiers of lots in the subdivision and their invitees, provided, that the Association shall not have the power to build or construct any improvement or facility of the type or nature described above until such building or construction has been approved by a two-thirds (2/3) majority vote of the members voting in person or by proxy at an annual or special meeting of the members.  The cost to construct the improvement or facility or the annual cost to finance such construction shall be paid through special assessments levied against the lots in the subdivision pursuant to the provisions of Article III, Section 4.2.
 
SECTION 4. ASSESSMENTS
4.1 Regular Assessment.
 
4.101 Maximum Amount: Amended January 26, 2017 to take effect January 1, 2018 for the purpose of providing a general fund to enable the Association to perform and exercise the rights, powers and duties as herein set out; all lots covered by the Declaration shall be subject to a regular assessment. The amount of said regular assessment shall be determined by the Board of Directors of the Association, provided that the regular assessment shall not exceed $789 per year, unless the membership, at an annual or special meeting, shall by a majority vote of those present in person or by proxy, authorize an assessment in excess of $789 per year.  The assessment for each unimproved lot covered by this Declaration shall be 25% of the assessment of each improved lot.
 
4.102. When Due. The regular assessments shall be imposed on an annual basis and ½ ($394.50) shall be due on January 1st of each year and ½ plus $20.00 ($414.50) shall be due on July 1st of each year. The entire regular assessment of $789.00 may be paid on January 1st of each year.  The Association shall mail or email notices of the regular assessment to each owner, but the failure to receive said notice shall not relieve the owner of liability for the payment of any assessment plus penalties and interest. Payments of annual assessments not received on or before January 31st of each year  (first annual assessment) or July 31st of each year (second annual assessment) shall be considered delinquent (provided, however, that if said payment is mailed and bears a postmark of January 31st, first annual assessment or July 31st, second annual assessment, or earlier, said penalty shall be waived) and a penalty equal to twenty percent (20%) of that portion of the annual assessment then due shall be imposed and collected, and if not paid with the annual assessment, the total amount due shall bear interest at fifteen percent (15%) per annum until paid.  Assessments not paid after property owner is contacted by the Board of Directors may have liens filed against the property at the discretion of the Board of Directors.  Once a delinquent Annual Assessment is given to the Association attorney for collection, that property owner is responsible for all attorney’s fees and other costs incurred by the Association for the collection of the delinquent Annual Assessment.  Each owner consents to jurisdiction and venue in the Circuit Court of Clay County, Missouri, for any legal action relating to the collection of unpaid Annual Assessments.
 
4.103. Abatement of Director Assessments.  Regular assessments for Housing Units owned and occupied by members of the Board of Directors shall be abated for the year during which the member begins his or her second full two year term of service on the Board and thereafter so long as he or she remains a member of the Board of Directors.  The abatement shall be an amount equal to one hundred percent (100%) of the regular assessment for the Board President, fifty percent (50%) of the regular assessment for the Treasurer and twenty-five percent (25%) of the regular assessment for all other elected members of the Board.  The appropriate abatement amount for a calendar year shall be determined as of the close of the annual meeting of members provided, however, the abatement shall be lost for any calendar year in which a member of the Board fails to continue his or her service until the end of the calendar year.
 
4.2 Special Assessment.
 
4.201 Purpose of Special Assessment. The Board of Directors of the Association may impose special assessments for any of the following purposes:
Maintenance of vacant lots not owned by the Association pursuant to the provisions of 3.107.
Maintenance, repair, restoration or replacement of utility lines including sewers. The cost of said work shall be apportioned among the owners served by the utility line which is repaired or replaced unless the work is necessitated by the negligent or willful act of a single owner in which event the cost may be assessed against such owner.
Water service charges.
Maintenance of the exterior of the housing buildings as authorized by Section 3.3. The cost of said maintenance shall be apportioned among the owners whose housing unit is benefited by such maintenance.
Capital improvements authorized pursuant to Section 3.4 hereof.
Insurance premiums on property owned by the Association and insurance premiums on the housing units and patio homes.
Maintenance of owner’s individual patio or garden areas to remove trash, weeds, items stored thereon which are unsightly or to remediate other noxious or offensive conditions on such patio or garden area.
Maintenance, repair or restoration of any condition on the exterior or interior of an owner’s property causing physical damage to adjacent properties.
Enforcement of the Declaration.  If the Association employs an attorney and/or institutes legal action to enforce any provision of the Declaration as amended from time to time, the Association shall be entitled to reimbursement of all costs incurred, including reasonable attorney fees.  All such costs shall be assessed against the offending Owner or Owners.
Pets.  Damage to common areas caused by the failure of owners of domestic animals to promptly remove animal solid waste or feces or failure to keep dogs not in fenced enclosures effectively leashed at all times by a responsible person physically capable of controlling such animal.  The actual damage being difficult to measure, a minimum of $50.00 shall be assessed as a special assessment for each instance.
 
4.202 Special Assessment – When Due.  The Association shall give written notice of the amount and purpose of all special assessments to the owner, provided that the failure to receive said notice shall not relieve the owner of liability for the payment of any assessment together with penalties. All special assessments shall be due within 15 days following the notice thereof unless the notice shall specify an optional method of payment. The board of Directors may impose a penalty of not to exceed 20% of the amount of any special assessment which is not paid by the due date.
 
4.3 Enforcement of Assessments. All assessments, regular and special, together with any penalties, shall be the personal obligation of the owner, and shall also constitute a continuing lien on the lot upon which said assessment is imposed. Collection of assessments and penalties may be enforced by:
Lawsuit against the owner personally obligated for the assessment, and/or
Lawsuit to foreclose the lien against the lot upon which the assessment is imposed.
 
If it becomes necessary for the Association to institute legal action to collect any assessment, the Association shall also be entitled to reasonable attorney’s fees from the lot owner.  Each owner consents to jurisdiction and venue in the Circuit Court of Clay County, Missouri, for any legal action relating to the collection of unpaid Annual Assessments.
 
The lien of the assessment shall be subordinate to the lien of any mortgage or deed of trust heretofore placed upon the lot subject to the assessment and prior to the lien of any mortgage or deed of trust hereafter placed upon the lot subject to the assessment.  The lien of any assessment shall not be extinguished upon foreclosure of any mortgage or deed of trust hereafter placed upon the lot subject to the assessment.  The transfer of title to any lot upon which there is an unpaid assessment, shall not relieve said lot from the liability of the lien.
 
Failure of any owner to utilize the Association facilities or of any owner to accept the services provided by the Association shall not relieve said owner form the liability of the assessment.
 
4.4 Notice of Lien. The Association shall be authorized to file for record a notice showing the lien against any lot upon which the assessment has become delinquent. Neither the Association nor any person filing said notice on behalf of the Association shall incur any liability whatsoever for the filing of said notice. Failure to file the lien notice shall in no way effect the validity of the lien or assessment.
 
4.5 Transfer fee.  A transfer fee of $200.00 shall be charged to the buyer of a townhouse or patio home at the time of purchase to assist the Association with costs associated with a transfer of ownership.
 
 
Section 5. Additional Lands; How They May Be Added.
Addition of Lands 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 associations, provided that the addition of such lands or the uniting or combining with other associations, as the case may be, is first approved by a two-thirds (2/3) majority vote of the members voting in person or by proxy at either the annual or a special meeting of the members of the Association.
 
 
Section 6. Rental Property Limitations.
The number of Housing Units that may be used as rental properties shall be limited to a maximum number of four (4) properties.  For these purposes, any Housing Unit not occupied by the holder of record of fee simple title thereto shall be considered a rental property.  Those Housing Units being used as rental properties as of October 4, 2005, may remain rental properties until sold, at which time they may not be sold for use as, or used as rental properties, unless the total then current number of rental properties within the New Mark First Townhouse Association is/are three (3) or fewer Housing Units.  No Housing Units may be purchased and used as rental properties unless the total then current number of rental properties within the New Mark First Townhouse Association is/are three (3) or fewer Housing Units.  No Housing Units may be converted to, or used as rental properties by their current owners, unless the total then current number of rental properties within the New Mark First Townhouse Association is/are three (3) or fewer Housing Units.
 
 
Section 7.  Association to Observe All Laws.
The Association shall at all times observe all state, county and other laws. If at any time the provisions of this Article shall be found in conflict with the laws of the state, county or other duly constituted authority, then such provision shall become null and void. However, other provisions of this Article, not in conflict with the laws of any duly constituted authority, shall not be affected.
 
 
ARTICLE IV
RESTRICTIVE COVENANTS
 
Section 1. Persons Bound by these Restrictions. 
All persons, firms or corporations who now own or shall hereafter acquire any interest in (1) all or any portion of an undeveloped block, as defined herein, or (2) an individual lot, as defined herein, shall be taken to hold and agree and covenant with the Developer, its successors and assigns, to conform to and observe the following covenants, conditions, restrictions and stipulations as to the use of said property.
 
Section 2. Use of Land.
The blocks in the subdivision, or portions thereof, shall be developed with townhouses and patio homes. Each housing unit will be developed with townhouses and patio homes. Each housing unit will be situated on an individual lot. No lot in the subdivision shall be used or occupied for other than single family residence purposes. Any housing unit erected or maintained on any of said lots shall be designed for occupancy by a single family.  Other land in the subdivision not divided into lots shall be maintained and used for the benefit of the owners and occupiers of lots in the subdivision.
 
Section 3. Approval of Design and Location of Townhouse Buildings.
No housing unit shall be erected, placed altered or externally improved on any block, or portion thereof, until the building plans, specifications, exterior color scheme, materials, grading and location thereof have been approved by the Developer its successors or assigns. The Developer shall not be liable for any disapproval or failure to approve hereunder. Nothing contained in this section shall be deemed to prevent any owner of any lot in the subdivision or the Association from maintaining any action relating to improvements within the subdivision which he or it would be entitled to maintain.
 
Section 4. Building Exteriors.
The exteriors of all structures, including walls, doors, windows and roofs shall be kept in good maintenance and repair. No structure shall be permitted to stand with its exterior in an unfinished condition for longer than one (1) year after the commencement of construction. In the event of fire, windstorm or other damage, the exterior of no structure shall be permitted to remain in a damage condition for longer than three (3) months.
 
Section 5. Required Size of Townhouse Units.
Any housing unit erected on any lot in the subdivision shall contain a minimum of 800 square feet of total floor area, exclusive of porches, basements, attics or garages.
 
Section 6. Livestock or Poultry Prohibited.
No animals, livestock or poultry of any kind shall be raised, bred or kept on any lot, except a total of two (2) dogs, cats or other common household pets may be kept, provided that such animals are not kept, bred or maintained for commercial purposes.
 
 
Dogs
The maximum weight of any adult dog living in, being boarded at, or otherwise kept at any residence in New Mark First Townhouse Association shall be 40 pounds
The following dogs are not allowed to live in, be boarded at, or otherwise kept at any residence in the New Mark First Townhouse Association: American Staffordshire Terrier (aka: Yankee Terrier, Pit Dog, American Bull Terrier, and American Pit Bull Terrier), Boxer, Chow, Doberman Pinscher, German Shepherd or Rottweiler.  Any dog that appears to have been bred, cross-bred or to contain identifying characteristics of the above breeds, if so determined by a veterinarian of the Board of Director’s choosing, shall not be allowed to live in, be boarded at, or otherwise kept at any residence in the New Mark First Townhouse Association.
These restrictions do not include dogs living in or boarded at any residence for the sole purpose of assisting an individual (for example, guide dogs) who lives at that residence.  Approval of the Board of Directors is needed to waive restrictions 1 and/or 2 above.
All dogs, if not in fenced enclosures, shall be kept on a leash at all times when outside.
Dog owners shall carry plastic bags or other items and pick up all droppings/feces from their dogs and dispose of same at their home.  
 
Section 7. Noxious Activity.
No noxious or offensive trade or activity shall be carried on within the subdivision.
 
Section 8. Signs and Billboards Prohibited.
No signs, advertisements, billboards or advertising structures of any kind may be erected or maintained on any lot without the consent in writing of the Developer, its successors or assigns; provided that not more than one advertising sign may be erected and maintained on each lot advertising that said lot is for sale or for rent.
 
 
Section 9. Temporary and Out Buildings Prohibited.
No out building or other detached structure may be erected on any of the lots in the subdivision without the written consent of the Developer, its successors or assigns. Nor may any temporary or incomplete building, nor any automotive equipment, trailer or garage be erected, maintained or used for residential purposes, either temporarily or permanently.
 
Section 10. Planting and Gardening, Fences.
Except for individual patio areas, no planting or gardening shall be done. No fences, hedges or walls shall be erected or maintained upon any block or lot, except (1) as are planted or installed in accordance with the initial construction of housing units on any lot or (2) as approved in writing by the Board of Directors of the Association.
 
Section 11. Antennas Prohibited.
No exterior television or radio antenna of any sort shall be erected or maintained on any lot in the subdivision without the written consent of the Developer, provided that the Association shall have the right to erect and maintain said master antenna on Association property, if the erection of such master antenna is approved by members of the Association pursuant to the provisions of Article III, section 3.4 hereof.
 
Section 12. 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 13. Automotive Repair Prohibited.
No automotive repair or rebuilding or any form of automotive manufacture, whether for hire or otherwise, shall occur on any lot, unimproved block or on Association property, except for emergency repairs.
 
Section 14. Parking and Storage of Vehicles Prohibited.
No automobile, truck, airplane, boat, house trailer, boat trailer or similar vehicle may be stored upon any lot in the subdivision expect for emergency parking.
 
Section 15. Awnings Prohibited.
No awnings may be constructed or erected on the exterior of any housing unit without the written approval of the Board of Directors of the Association. Amended 8/16/92 as follows: If any awnings are approved for installation by the Board of Directors, said awnings will only be permitted to be installed on the back or sides of the exterior of any housing unit; never on the front of exterior of said housing unit.
 
Section 16. Right to Enforce.
The restrictions set forth in this Article IV shall run with the land. The Developer, its successors and assigns, and all owners agree and covenant to conform to and observe said restrictions as to the use of property in the subdivision and the construction of improvements thereon, but no restrictions herein set forth shall be personally binding on any corporations, person or persons, except in respect to breaches committed during its, his or their ownership of said land; and (1) the owner or owners of any lots hereby restricted, and (2) the Association 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 set forth, in addition to ordinary legal actions for damages; and the failure of any owner or owners of any lots in the subdivision or the Association to enforce any of the restrictions set forth in the Article at the time of its violation shall in no event be deemed a waiver of the right to do so thereafter.
 
ARTICLE V
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:
The right of the Association to charge reasonable admission and other fees for the use of any recreational facility situated upon the Common Area.
The right of the Association to suspend the voting rights and right to use of the recreational facilities by an owner for any period which any assessment against his lot remains unpaid; and for infraction of its published rules an regulations.
 
 
 
ARTICLE VI
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 Developer, its successors in interests, and assigns.
 
ARTICLE VII
AMENDMENTS AND DURATION OF COVENANTS
 
 
The provisions hereof except Articles I, II and IV may be amended by either of the following methods:
By vote of 2/3 of the members present either in person or by proxy at any regular or special meeting of the members provided written notice of the proposed amendments and time and place of the meeting has been mailed to each member at least 10 days in advance of the meeting. Any amendment so approved shall be evidenced by a written instrument executed, acknowledged and filed for record in Clay County.
By written instrument executed by the owners of 2/3 of the lots covered by this Declaration. The said written instrument shall be filed for record.
 
The provisions of Articles I, II, and IV hereof may be amended only by written instrument executed by the owners of 90% of said lots covered by this Declaration. The said written instrument shall be filed for record.
 
ARTICLE VIII
INSURANCE
 
Section 1. Insurance by Housing Unit Owners.
Each housing unit owner shall maintain his own insurance on household goods, furnishings, clothing and all other tangible, personal property including automobiles. The housing unit owner shall also maintain fire and extended coverage insurance on his housing unit unless the said insurance is maintained by the Association under Section 2 hereof.
 
Section 2. Insurance by Association.
 
2.1 The Association shall maintain fire and extended coverage insurance on all Association property at full replacement value, provided, however, that neither the Association nor its directors or agents shall be liable for failure to maintain adequate insurance. All insurance proceeds received by reason of damage to Association property shall be used to repair or replace said property. The Association may, but shall not be obliged to, maintain fire and extended coverage insurance upon the housing units.
 
2.2 If the Association maintains insurance upon the units, the Association shall endeavor to insure each unit at its full replacement cost provided, however, that neither the Association nor its directors or agents shall be liable to any owner for failure to maintain adequate insurance. Any owner may request that the Association increase the coverage on the owner’s housing unit.
 
2.3 Premiums for the housing unit insurance shall be charged against the owners pro-rata on the basis of the amount of their respective coverage and shall be billed as a special assessment.
 
2.4 Each owner releases each other owner, the Association, its agents, and employees and the Developer, its agents, and employees from any claim for property damage arising out of an occurrence covered by fire and extended coverage insurance.
 
2.5 The insurance shall be payable to the Association as Trustee for the respective housing unit owners and for the Association with respect to losses to Association property and the holders of deeds of trust as their interests may appear. The Association shall have full authority to adjust the loss with the insurance company.
 
2.6 The insurance proceeds shall be applied by the Association to repair or reconstruct the units damaged unless the Association and all owners whose unites are damaged or destroyed and holders of deeds of trust covering damaged units shall elect not to rebuild. In such latter event, the property, including the damaged improvements, shall be sold and the net proceeds together with the insurance proceeds shall be divided among the damaged housing unit owners and the deed of trust holders as their interest appears on the basis of the value of the respective property prior to the loss all as determined by an appraiser to be appointed by the Association.
 
2.7 If the improvements are repaired or rebuilt and the insurance proceeds are insufficient, the housing unit owners will each contribute to the extent that the insurance proceeds relating to their respective units prove inadequate to cover the repair costs. The amount to be contributed by each owner will be determined by an appraiser appointed by the Association.
 
2.8 If any owner maintains personal, fire and extended coverage insurance in addition to the insurance maintained by the Association, and if said action results in a diminution of the proceeds received by the Association, the unit owner shall be liable to the Association in the amount of such diminution.
 
 
ARTICLE IX
LIMITATION ON ASSOCIATION POWERS
 
 
The Association shall not have the authority to undertake any of the following actions without written approval of the holders of the mortgages or deeds of trust upon 75% of the housing units:
Sell, transfer, encumber, partition, subdivide or abandon real estate or improvements owned directly or indirectly by the Association.
Change the method of assessment provided that this provision shall not give the deed of trust holders any vote as to the amount of any regular or special assessment.
Change, waive or abandon the regulations or enforcement thereof regarding architectural design or appearance and maintenance of the housing units and common property.
Reduce the insurance on common property to less than 100% of insurable value.
Utilize casualty insurance proceeds received form losses to common property improvements for any purpose other than rebuilding or repairing said improvements.
 
 
 
 
 
ARTICLE X
EFFECT OF INVALIDITY OF A PORTION OF THIS DECLARATION
 
Invalidation of any one or more of the foregoing easements, restrictions, covenants or conditions by judgment or court order shall in no manner affect any of the other provisions herein, and all such provisions shall remain in full force and effect.