Covenants

AMENDMENT TO RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS APRIL 6, 2023

This amendment restricts the leasing or renting of homes within the Willowbrook subdivision.  

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RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS

THIS RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS is made and entered into as of this 31st:day of May, 1990, by F & G DEVELOPMENT COMPANY, with registered offices located in Overland Park, Johnson County, Kansas, hereinafter referred to as "DECLARANT".

WITNESSETH:

WHEREAS, DECLARANT is the owner of certain real property located within the City of Overland Park, Johnson County, Kansas, as legally described on the attached Exhibit "A", which exhibit is attached hereto and incorporated herein by reference as though fully set forth; and

WHEREAS, DECLARANT desires to provide for the creation on such real property a planned residential community with community facilities for the use and benefit of the residents of such community; and

WHEREAS, DECLARANT desires to provide for the preservation and enhancement of the property values, amenities and opportunities in such community and for the maintenance of such real property and improvements thereon and, to such end, desires to subject the real property described in Exhibit "A", together with any additions hereafter made thereto, to the covenants, obligations, restrictions, easements, changes and liens set out herein, each and all of which is and are for the benefit of such property and each and every owner thereof; and

WHEREAS, DECLARANT deems it desirable for the efficient preservation of such values and amenities in such community and to carry out the obligations with respect to the common areas thereof, to create an entity which shall be delegated and assigned the powers of: owning, maintaining and administering the community properties and facilities; administering and enforcing the terms of this Declaration; collecting and disbursing assessments and charges hereinafter created; and, further, promoting the health, safety and welfare of the community's residents; and

WHEREAS, DECLARANT has incorporated under the laws of the State of Kansas, the WILLOWBROOK HOMEOWNERS ASSOCIATION as a not-for-profit corporation for purposes of exercising the functions set out herein.

WHEREAS, on the 17th day of April, 1990, a Declaration of Covenants, Conditions and Restrictions dated the 5th day of April, 1990, was filed by DECLARANT with the Johnson County Register of Deeds at Volume 3154, Page 519; and

WHEREAS, DECLARANT desires that this Restated Declaration of Covenants, Conditions and Restrictions replace in full the original and filed Declaration of Covenants, Conditions and Restrictions.

NOW, THEREFORE, DECLARANT declares that the real property described in Exhibit "A", together with any additions hereinafter made thereto, is and shall be held, transferred, sold, conveyed and occupied subject to the covenants, restrictions, obligations, easements, charges and liens (sometimes herein collectively referred to as "covenants and restrictions") as set out herein.

I. GENERAL PROVISIONS

1. "Declarant" shall be F & G Development Company which is currently the owner of the real property located within the City of Overland Park, Johnson County, Kansas, as described on
2. the attached Exhibit "A", which Exhibit "A" is attached hereto and incorporated herein by reference as though fully set forth.
3. "Owner" shall be defined to mean the record owner, whether one or more persons or entities, having a fee simple title to any Lot which is a part of the Property but excluding any person or entity having such interest merely as security for the performance of an obligation of payment or otherwise.
4. "Property" shall be defined to mean all that real property as described in the attached Exhibit "A", which Exhibit "A" is attached hereto and incorporated herein by reference as though fully set forth together with any additions which may be hereinafter made by Declarant pursuant to the terms and conditions thereof.
5. "Common Areas" shall be defined to mean all that part of the property described on the attached Exhibit "A" excepting any Lot, such Common Area to include the green area and the "Lakes" which are fed primarily by natural run-off and secondarily, if necessary, by supplemental outside sources.
6. "Lakes" shall be defined as certain areas of the Common Area which are fed primarily by natural runoff and secondarily by supplemental outside sources. "Lakes" shall be defined to include all storm drains, sewer pipes, inlet structures and walls associated with the drainage system located within the Subdivision as well as any and all appurtenances to drainage systems as well as any and all tracts of ground containing the Lakes.
7. "Subdivision" shall be defined as the Property of the planned residential community commonly known as "Willowbrook".
8. "Lot" shall be defined to mean and refer to any plot of land shown upon the recorded Subdivision plat of the Property but shall not include the Common Areas or Lakes.
9. "Association" shall be defined to mean the Willowbrook Homes Association, its successors and permitted assigns.
10. "Members" shall be defined as in Article XI of this Declaration.
11. "Dwelling Unit" shall be defined as a completed residential structure or part thereof for which a Certificate of Occupancy has been issued and which is intended to house one individual or family.
12. "Maintenance Agreement" shall be defined to be the Maintenance Agreement entered into by Declarant with the City of Overland Park making specific provisions and assuming certain responsibilities for the maintenance of the Common Areas, specifically the Lakes. Such Maintenance Agreement is attached hereto as Exhibit "B" and is incorporated herein by reference as though fully set forth.

II. PROPERTY RIGHTS

A. Owners' Easements of Enjoyment

Each and every Owner shall have a right and easement of enjoyment in and to the Common Areas which shall be appurtenant to and shall pass with the title to every Lot subject to the following provisions:

1. The right of the Association to charge reasonable admission, maintenance, repair or other fees for the use of the Common Areas by less than all of the Members and the right of the Association, pursuant to its Bylaws, to adopt rules and regulations governing the use of the Common Areas and facilities and governing the personal conduct of the Members and their guests thereupon and to establish penalties for the infraction of any such rules and regulations;
2. The right of the Association to suspend the voting rights and the rights to use the Common Areas by any Owner for any period during which any assessment against the Owner's Lot remains unpaid and for a period not to exceed sixty (60) days for any infraction of the Association's published rules and regulations;
3. The right of the Association to dedicate or transfer any or all of the Common Areas to any public agency, authority, or utility for such purposes and subject to such conditions as may be agreed to by the Members of the Association. No such dedication or transfer shall be effective unless approved by a two-thirds (2/3) vote of all members without necessity of obtaining separate approval by each class of membership. In addition to such approval, no such dedication shall be effective unless approval of the same is obtained by the City of Overland Park in accordance with the requirements and provisions of the Maintenance Agreement.
4. The obligations created in the Maintenance Agreement between the City of Overland Park and Declarant with respect to certain areas of the Common Areas, specifically the Lakes. In connection therewith, the right of enjoyment and use shall be limited as set forth in the Maintenance Agreement including the indemnity provisions from the Homes Association to the City of Overland Park and the rights as third party beneficiaries vested pursuant to the Maintenance Agreement in the City of Overland Park.

B. Delegation of Use

Any Owner may delegate, in accordance with the Association's Bylaws, such Owner's right to the enjoyment and use of the Common Areas to the Members of the Owner's family or the Owner's tenants or contract purchasers who reside on the Owner's Lot.

III. EASEMENTS

A. Easements for Utilities

Declarant reserves the right to grant easements, both temporary and permanent, to all public authorities and utility companies or any part of the Common Areas described herein; provided, however, that any such grant shall not relieve Declarant or Association of any obligations with respect to the Common Areas set forth in the Maintenance Agreement.

B. Easements for Encroachments

Each Lot and every part of the Property included in the Common Areas shall be subject to an easement for encroachments which may be created by construction of Declarant or builder for Declarant. A valid easement for said encroachments and for the maintenance of the same, so long as the encroachment shall stand or remain, shall and does hereby exist, In the event any structure which is a part of the Common Areas is partially or totally destroyed and then rebuilt, there shall be, as necessary, for the reconstruction of the same, a valid easement for any encroachments which may be required in the construction or maintenance thereof.

C. Other Easements

There shall be created a blanket easement upon, across and over and under all properties for ingress, egress, installation, replacement, repair and maintenance of all utilities, including but not limited to water (including sprinkler systems), sewer, gas, telephone, electricity and cable or other television reception system. By virtue of this easement, it shall be expressly permissible to erect and maintain the necessary poles and other equipment on the property and to affix and maintain electrical or telephonic wires and conduits, sewer and water lines or piping, on, above or below any residence Lot or land owned by any Owner. An easement is hereby granted to the Association, its officers, agents, employees (including any employees of any management company having a contract with the Association over all or a part of the Common Areas) to enter upon any residence or Lot to perform the duties of maintenance and repair to residences or the Common Areas as assumed by the Association to maintain any utilities for which an easement has been granted; and to prevent any damage to any other residence. An easement is hereby reserved to Declarant to enter the Common Areas during the period of construction and sale of any part of the Property or any additions to the Property and to maintain such facilities and to perform such operations as in the sole opinion of Declarant may be reasonably required, convenient or incidental to the construction and sale of residences, including without limitation, a business office, sales office, storage area, construction and yard signs and model units. In connection therewith, Declarant and the Association, its officers, agents, employees (including the employees of any management company having a contract with the Association over all or any part of the Common Areas) shall also be hereby granted an easement over the Property as may be required to fulfill the obligations of Declarant and/or the Association under the terms and conditions of the Maintenance Agreement entered into with the City of Overland Park.

IV. ARCHITECTURAL CONTROL

No building, fence, wall, plantings or other structural feature or air conditioning unti or compressor shall be commenced, erected or maintained upon the Property (except any original construction or development by the Declarant) nor shall any exterior addition to or change or alteration therein be made (except by Declarant) nor shall any Owner erect, place, install or attach any sign, light, object or thing on the exterior of any building or on any common area unless such structural feature or other object is constructed and placed in conformity with restrictions contained herein and, further, until the plans and specifications showing the nature, kind, shape, height, materials and location of the same and/or any other proposed form of change including, without limitation, any other information specified by the Board of Directors of the Association shall have been submitted to and approved in writing by such Board of Directors or by an architectural committee designated by the Association's Board. In the event that said Board, or its designated committee, fails to approve or disapprove its design and location within sixty (60) days after said plans and specifications have been submitted to it in writing, approval will not be required. In such cases, this Article IV shall be deemed to have been fully complied with.

Construction or alterations in accordance with plans and specifications approved by the Board or its designee pursuant to the provisions of this Article IV shall be commenced within six (6) months following the date upon which same are approved (whether by affirmative action or by forebearance from action), and shall be substantially completed within twelve (12) months ~ following the date of commencement, or within such other period of time as the Board shall have specified in its approval, or in the event construction is not commenced within the period aforesaid, compliance with the provisions of this Article shall again be required. There shall be no deviation from the plans and specifications approved by the Board without the prior consent in writing of the Board.

No fences may be constructed by the Owner of any Dwelling Unit except in accordance with the terms and provisions hereof. Specifically, privacy fencing may only be constructed within eighteen feet (18') of the Dwelling Unit. In addition, such fencing must be finished on both sides. The Board of Directors of the Homes Association shall require any member not complying with the provisions hereof to remove fencing constructed in violation of these provisions, Any and all other fencing, including perimeter fencing, must be wrought iron fencing. Maintenance of all fencing and decks shall be the sole responsibility of the Dwelling Unit Owner. All fencing shall be flush with the back of each and every Dwelling Unit and may not extend in front of the back of the Dwelling Unit.

Members shall be responsible for maintaining the grass and any plantings between the Dwelling Unit owned or occupied by such Member and any fences erected, If such area becomes unsightly and the Member refuses to maintain the same as required by the Board of Directors of the Association, such Board reserves the right to undertake such maintenance as may be required within the area and make additional assessments to the Owner or Member responsible for the same.

All decks shall be constructed with wood which if treated with a penetrating wood stain or comparable product, the color shall be approved by the Association. The Owner of the Dwelling Unit shall be responsible for maintenance of all decks, provided, however, that in the event the Owner or Member does not maintain the same, the Board of Directors of the Association, after reasonable notice to the Owner, may undertake such maintenance and charge the Owner of the Dwelling Unit for the same.
Storm doors on all Dwelling Units shall be full view aluminum storm doors or alternative storm doors as may be approved by the Board of Directors of the Association.

Each Owner shall be responsible for minimum landscaping requirements as established by the Board of Directors of the Association. Until such time as different standards are set forth, each Dwelling Unit shall, prior to occupancy (or in the event weather does not permit within forty-five (45) days after weather permits) expend at least Seven Hundred Fifty Dollars ($750.00) on landscaping. This shall include plantings of shrubery and plants Along the front elevation of the Dwelling Unit as well as at least one (1) ornamental tree on the Lot. Any such plantings installed shall be the responsibility of Owner and shall be maintained and watered by the Owner. Likewise, such plantings, if they die or become unsightly, shall be removed by the Owner and replaced. The Board of Directors of the Association reserves the right to direct removal of any dead or unsightly plantings. Such removal shall be at the expense of the Owner who planted same. With respect to existing trees on the Owner's Lot and with respect to trees planted by developer, the Association will provide replacement trees in accordance with any guarantees provided by suppliers of the same. Existing trees, however, shall not be the responsibility of the Developer or Association for replacement.

The Board of Directors of the Association or its designee may from time to time adopt and promulgate such rules, regulations and conditions regarding the form and content of plans and specifications to be submitted for approval and requirements regarding responsibility for maintenance of any such building, planting or other improvement.  No such rules, regulations, statements or policies shall be construed as a waiver of the provisions of this Article or any other provision herein contained or any requirement of law. The Board of Directors reserves the right to charge and collect any and all actual costs and expenses incurred by the Board for the examination of any plans and specifications submitted for approval pursuant hereto. The decisions of the Board of Directors of the Association shall be final except that any Owner who is aggrieved by any action or forbearance from action by any designee of the Board of Directors may appeal the decision to the Board of Directors and, upon request, shall be entitled to a hearing before the entire Board of Directors of the Association.

The provisions of this subparagraph, specifically those requiring approval of the Board of Directors, shall not apply to any construction of buildings or modification to existing buildings by the Developer which construction or modification is consistent with the existing structures in the area. In addition, Thomas French Builder, Inc., the builder for the Developer, shall be exempt from these provisions.

V. EXTERIOR MAINTENANCE

In addition to maintenance upon the Common Areas, the Association shall provide exterior maintenance upon each Lot which is subject to assessment hereunder as follows:

Paint and repair exterior trim on all Dwelling Units, provide lawn maintenance and mowing, provide maintenance for the sprinkler systems, trash hauling and to provide all snow removal. Such exterior maintenance shall not include maintenance or repair of exterior surfaces of the Dwelling Units (except for the trim as set forth above) gutters, downspouts, glass surfaces or doors, screens and screen doors, exterior door and window fixtures or maintenance of any concrete surfaces including walks, garage floors, patios, exterior decks and screened-in porches, aprons and the concrete portion of any driveways. Further, such exterior maintenance' shall not include maintenance of or replacement of roofs unless, by vote of a majority of the members (without necessity of separate approval by each class of Members or each Member of a class) there is a resolution passed authorizing the Association to replace roofs. Such resolution may also require an additional assessment upon each and every Lot. With respect to sprinkler systems, individual sprinkler systems will be' installed throughout the Property. The Homes Association and/or Declarant shall have the authority to control the use and timing of the sprinkler systems so as to accommodate mowing and maintenance obligations. Such control may include the timing of watering as well as the frequency of watering.

In the event that the need for maintenance or repairs is caused through the willful or negligent acts of the Owner, the Owner's family, guests or invitees, the cost of such maintenance or repairs shall be added to and become a part of the assessment to which the Owner's Lot is subjected. The above obligation does not include any maintenance or repairs caused by fire or other casualty to the premises owned individually by Members of the Association.

Should any Owner fail to maintain any improvement or planting which it is his or her obligation to maintain as provided herein, then the Association may, upon approval of the Board of Directors, enter into such area and perform such required maintenance. The cost of such maintenance shall be charged directly to such Owner or Owners who are responsible for same and may be billed directly or added to and made a part of the next assessment to such Owner(s).

 

VI. COVENANTS FOR ASSESSMENTS

A. Creation of Lien, Personal Obligation for Assessments, Declarant Not Obligated

Each Owner of any Dwelling Unit on the Property by acceptance of a deed therefor, whether or not such covenant and agreement shall be expressed in such deed, is deemed to covenant and agree to pay to the Association:

1. General Assessments or charges;
2. Special Assessments for capital improvements;
3. Tax Assessments for any Property taxes on the Common Areas;

such assessments to be established and collected as hereinafter provided. The annual General, Special and Tax assessments, together with interest, cost and reasonable attorneys' fees incurred in any effort to collect such assessments shall be a charge on the land and against the Lot and shall be a continuing lien upon such Lot against which each such assessment is made. Each such assessment, together with interest, costs and such reasonable attorneys' fees, shall also be the personal obligation of the person who was the Owner of said Property at the time when the assessment becomes due. This personal obligation for delinquent assessments shall not pass to the Owner's successors in title unless expressly assumed by them; provided, however, such shall remain a lien on the property, which lien shall be enforceable by the Association.

Declarant shall be obligated to pay such amounts as are necessary to permit the Association to perform its obligations hereunder if such expenses exceed the amounts collected from Owners of Dwelling Units set forth herein. In no event, however, shall Declarant be obligated for any payment which would exceed an assessment he would otherwise be obligated to pay under the terms of this agreement if he were the Owner of all unsold Dwelling Units. Declarant may, at its sole option and discretion, pay amounts as are necessary to permit the association to perform its obligations hereunder, even though such expenses may exceed amounts for which Declarant is legally obligated hereunder. In the event Declarant elects to pay such expenses, the amount so paid shall be evidenced by a promissory note made payable by the Association to Declarant. Such promissory note shall bear interest equal to 110% of the Applicable Federal Rate and the repayment of the same shall be repaid to Declarant by a special assessment against each and every Dwelling Unit within one year of the payment of expenses by Declarant.

B. General Assessments

The Association shall annually levy a General Assessment. General Assessments levied by the Association shall be used exclusively to promote maintenance of the Common Areas, including the recreational ammenities, the performance of the duties and exercise of the powers of the Association as set forth in this Declaration, by the Association of its duties and exercise by it of its powers and the establishment of reasonable reserves for the maintenance, repair and replacement of roads, paths and other improvements upon the Common Areas and such other reserves as the Board of Directors of the Association deems appropriate. General Assessments levied by the Association for fiscal years shall be adequate to finance the operations and activities of the Association, to satisfactorily maintain the Common Areas and to establish and maintain adequate repair and replacement reserves.

Until January 1 of the calendar year immediately following the recordation of this Declaration, the maximum General Assessment shall be Ninety Dollars ($90.00) per month per Dwelling Unit.

The General Assessment may be increased by a majority vote of the Board of Directors of the Association for any year over that charged during the previous year but by no more than eight percent (8%).

Further, the General Assessment may be increased, by votes of at least forty percent (40%) of the Members of each class of Members who are voting in accordance with the Bylaws of the Association at a meeting called for the specific purpose, inter alia of considering such an increase, for any year in excess of the maximum amount by which it can be increased with Board of Director approval as aforesaid.

C. Special Assessments for Capital Improvements

In addition to the General and Tax Assessments authorized herein, the Association may levy, in any assessment year, a Special Assessment applicable to that year only for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair or replacement of a capital improvement upon the Common Areas or recreational ammenities, fixtures and personal property related thereto f provided that any such assessment shall have the consent of two-third (2/3) of the votes of all Members who are voting in accordance with the Bylaws of the Association at a meeting called for the purpose, inter alia, of considering such assessments, it being understood that separate consent of each class of Members is not required hereunder. In addition, Special Assessments may be approved in accordance with the provisions of this subparagraph (C) to fund operating shortfall of the Association.

D. Separate Funds for Assessments

From the General Assessment set forth in subparagraph B above, there shall be created two reserve funds as follows:
(1) There shall be set aside from the monthly assessment of each Unit the sum of Two and 10/100 Dollars ($2.10) per month for Lake maintenance. Such reserve fund shall be segregated and maintained so as to enable the Association and/or Declarant to fulfill the obligations of the Association to the City of Overland Park as set forth under the terms and conditions of the Maintenance Agreement.
(2) The sum of Four Dollars ($4.00) per month shall be set aside and maintained as a reserve fund for street maintenance. Such fund shall be available for the Association and/or Declarant to fulfill its obligations hereunder with respect to maintenance of all streets and common parking areas.

Such reserve funds shall, when sufficient reserves are accumulated, be kept in an interest bearing account. In addition, when adequate reserves have been collected for the intended purpose (the adequacy of which are supported by written estimates with respect to the intended use) the Board of Directors of the Association may determine that there should no longer be set aside into separate funds the reserves as set forth herein except as may be required by Exhibit -B", Maintenance Agreement. Such a determination shall be reviewed on an annual basis and upon the expenditure of funds from any such reserve, the Board of Directors of the Association shall immediately begin to reserve in accordance with this paragraph. The status and adequacy of the two reserve funds shall be reviewed on an annual basis by the Board of Directors of the Association. Any and all interest earned on the reserve fund account shall be added to and utilized in accordance with the intended use of the fund.

E. Tax Assessments

The Association shall annually levy an assessment for the payment of Taxes owed by the Association or upon Common Areas or for any improvement which constitutes a part of the Common Areas.

F. Notice

Written notice for any meeting called for the purpose of taking any action as authorized under paragraphs B, C or D above shall be sent to all Members not less than thirty (30) nor more than sixty (60) days in advance of any such meeting. At the first such meeting called, the presence of Members or proxies entitled to cast forty percent (40%) of all of the voles of each class of 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. If at such meeting the required approval is not given, then the secretary of the Association shall open the ballot for thirty (30) days to enable those Members not present to vote. If at the end of the thirty (30)-day period the required vote has not been given, then the proposal shall deemed to have been defeated.

G. Rate of Assessment

The General, Special and Tax Assessments must be fixed at a uniform rate for all Lots. Assessments may be collected on a monthly basis.

H. Date of Commencement

The General, Special and Tax Assessments provided herein shall commence as to all Lots on the first day of the month following the conveyance of the Lot to the Owner. With respect to assessments which are made on an annual basis as opposed to a monthly basis, such shall be adjusted according to the number of months remaining in the fiscal year. The Association's Board of Directors shall fix the amount of the annual assessment (which may be paid monthly as set forth above) against each Lot at least thirty (30) days in advance of the beginning of each annual assessment year. Written notice of the annual assessment shall be sent to every Owner subject thereto. The due date shall be established by the Board of Directors, and, unless the Board otherwise provides, one-twelfth (1/12) of the General, Special and Tax Assessments shall be due each month. Upon transfer of a title to a Lot to the new Owner, the new Owner shall deposit with the Association a sum of money sufficient to pay such Owner's share of the next due real property taxes on the Common Areas. The association shall, upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the Association setting forth whether the assessments on a specified Lot have been paid.

I. Effect of Nonpayment

Any assessment not paid within thirty (30) days after the due date shall bear interest from the due date at the rate of eighteen percent (18\) per annum. The Association may bring an action at law or equity against the Owner personally obligated to pay the same, or foreclose the lien against the Property and shall be entitled to recover the assessment, together with interest, costs and reasonable attorney's fees for any such action. Each such Owner, by his or her acceptance of a deed to a Lot, hereby expressly vests in the Willowbrook Homeowners Association, Inc. the right and power to bring all actions against such Owner personally for the collection of each assessment charged as a debt and to enforce the lien described herein by all methods available for the enforcement of such lien including foreclosures by action brought in the name of the Association and in a like manner as a mortgage lien on the real property and its Owner hereby expressly grants the Association the power of sale in connection with said lien. The lien provided for in this section shall be in favor of the Association and shall be for the benefit of all Lot Owners. The Association, acting on behalf of the Lot Owners shall have the power to bid at any foreclosure sale and to acquire, hold lease, mortgage and convey any interest acquired. No Owner may waive or otherwise escape liability for any assessment provided for herein by non-use of the Common Areas or abandonment of his Lot.

J. Subordination of the Lien to Mortgages

Any lien for the assessments provided for in this Declaration shall be subordinate to the lien of any first mortgage on any Lot. Sale or transfer of any Lot shall not effect 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 assessment as to payments which become due prior to such sale or transfer. No sale or transfer shall release a Lot from such liability for any assessments thereafter becoming due or from the lien thereof.

VII. INSURANCE

A. Fire and Casulatv Insurance Coverage - Owners

Each Owner shall be required to obtain and maintain in force and effect a policy of fire and casualty insurance in reasonable amounts and with coverage adequate to cover the full replacement cost of any repair or reconstruction work on the Owner's Lot. In the event of damages or destruction by fire or other casualty to real property of the Owner, the Owner shall, upon receipt of the insurance proceeds, repair or rebuild any damaged or destroyed portion of the exterior of the Owner's Dwelling Unit in a good, workmanlike manner and in the same fashion and manner as the original plans and specifications of said Property. If the Owner refuses to or fails to repair such exterior damage or destruction within thirty (30) days after such damage or destruction, the Association may repair or rebuild such exterior. The Owner must reimburse the Association for the amount actually expended for such repairs or reconstruction and the Association shall have a lien securing such payment in the same manner provided for herein for annual assessments. Notwithstanding the foregoing provisions of this Article, the requirements for the maintenance of insurance on any property shall not apply to any property acquired by the Veterans Administration or the Federal Housing Administration pursuant to mortgage foreclosure during the period of ownership by either agency.

B. Insurance Obtained and Maintained by Association

The Board of Directors of the Association may obtain and maintain such insurance coverage as deemed necessary or appropriate, including liability insurance with respect to the performance of duties by Members of the Board of Directors. The cost of same shall be considered an expense of administering and maintaining the Homes Association and may be added to or made a part of any assessment hereunder. In addition to other obligations contained herein with respect to maintenance of the Lakes, the Association shall also maintain reasonable and adequate liability insurance to insure against risks associated with maintenance of the Lakes and the Common Areas associated therewith.

VIII. RESTRICTIONS

A. General Use

No commercial or business activity shall be permitted upon the Property except those related to the operatIon of the Common Areas by the Association. No commercial vehicle may be stored or parked on any portion of the Property or Common Areas except in an enclosed garage, except for those vehicles making deliveries and providing services to the Lots and Dwelling Units in the development within the Property. Similarly, no boating vessel, trailer, camper or recreational vehicle may be parked or left on the Property or Common Areas except in an enclosed garage. No advertising signs, including "For Rent" signs shall be permitted to remain on the Property except as provided for herein. With respect to "For Sale" signs, the same shall be purchased from the Association or, in a form approved by the Association, and may contain an attachment or "rider" providing information with respect to representation by a real estate agent or third-party.

Except for landscaping around the Dwelling Unit and trees throughout the Lots, no other gardening shall be done except within the individual patio areas which are surrounded by privacy fencing as the same is permitted herein. Owners may plant flowers and/or decorative plantings so as to add to the aesthetic appearance of their individual homes. Any such patio area shall be kept trimmed. Fences, hedges or walls erected or maintained on the Property shall only be as permitted herein. Retaining walls shall be constructed of stone or treated landscape timbers and the location and composition of the same shall be as approved by the Board of Directors of the Association. Without the prior written approval of the Board of Directors of the Association, no exterior television or radio antenna or satellite dish shall be placed or maintained upon any portion of the Property.
 

B. Declarant's Use

These covenants shall not apply to the business activities of Declarant during construction by the Declarant or t: a builder on behalf of Declarant upon any portion of the Property nor shall it apply to the business activities of the sales agent of Declarant.

C. Rights to Lease

Declarant or sales agent of. Declarant shall retain the right to enter into leases with any third parties for the use or occupancy of any Lots or townhouses owned by Declarant.

D. Construction or Alteration of Improvement

Declarant reserves the right to (i) make such changes and/or substitutions of materials in construction which ale deemed necessary; (ii) determine the exterior color and design, including layout and location of buildings on various plots to fit into the general pattern of development; (iii) determine the grading and elevation of all plots; (iv) determine the elevation of foundations and streets to conform to topographical conditions. At such time as Declarant has relinquished control as herein provided, no improvements or any sort may be constructed on any land subject to this Declaration or any land added thereto, without the prior written approval of the Board of Directors of the Association.

Declarant reserves the right to sell Lots within the subdivision for the construction of custom built residences to third-party builders. With respect to any such construction,
all plans shall be approved by Declarant prior to commencment of construction. In connection therewith, any third-party builder agrees to abide by the terms and conditions of this Restated Declaration of Covenants, Conditions and Restrictions.

E. Restriction on Structures

No structures of a temporary nature, and no trailer, tent, shack, barn, pen, kennel, run, stable, outdoor clothes dryer, playhouse, swimming pool, shed or other building shall be erected, used or maintained on any Lot at any time unless the Board of Directors of the Association has granted in writing its approval prior to construction or installation of same.

F. Obstructions

There shall be no obstructions of any portions of the Common Areas or of any storage in the Common Areas without the prior written consent of Declarant or the Board of Directors of the Association. No clothes, laundry or other article shall be hung or exposed in any portion of the Common Areas or on or about the exteriors of any of the buildings on the Property.

G. Animals

No animals, livestock or poultry of any kind shall be raised or kept on any building site in the Project other than household pets, which shall be limited to two (2) per household. All pets shall be leashed when outside of the home and patio area but shall not be leashed to any fence. No such pet will be kept, bred or maintained for commercial purposes. All requisite governmental ordinances governing pets shall be adhered to by all Owners keeping pets in accordance with this
provision and ALL OWNERS SHALL BE REQUIRED TO CLEAN UP ANY AND ALL PET WASTE WHICH IS DEPOSITED OUTSIDE OF THEIR FENCED IN AREAS.

H. Nuisance

No noxious or offensive trade or activity shall be carried on, upon or within any Lot or improvement thereon nor shall anything be done therein or thereon which may be or become an annoyance or nuisance to the neighborhood or other Members. Without limiting the generality of the foregoing, no speaker, horn, whistle, siren, bell or other sound device, except such devices as may be used exclusively for security purposes, shall be located, installed or maintained upon the exterior of any improvement on the Property.

I. Repair and Storage of Vehicles. Trailers, Etc..

No automotive repair or rebuilding or any other form of automotive manufacture, whether for hire or otherwise, shall occur anywhere on the Property, except that automotive repairs on a non-commercial basis and not for hire may be conducted in any enclosed garage as permitted under other provisions of these Restrictions. All vehicles owned or used by any Member or any other resident of a Dwelling Unit must be parked and stored in an enclosed garage at all times. In the event the Member/Owner or resident of the Dwelling Unit owns vehicles in excess of the number of garage spaces available, the vehicles may then be parked in the driveway of the Dwelling Unit for a period of twelve (12) hours. Vehicles shall not be parked on the street or common roadway and in the event a vehicle is to remain more than twelve (12) hours, the vehicle shall be parked in a common parking area of the subdivision and such vehicle shall be removed at least every twenty-four (24) hours. The restrictions contained under this subparagraph are in addition to and not in lieu of restrictions imposed elsewhere in this Declaration.
Garage doors on all Dwelling Units shall remain closed except as access is required to the garage of the Dwelling Unit by the Member/Owner or resident.

The Homes Association may ticket and/or tow any vehicles which violate the terms and conditions of the restrictions contained herein and in the event of such towing, any towing charge and/or storage shall be the sole and separate expense of the Owner. Further, the Association shall have no liability with respect to such towing. In lieu of towing, the Association at any regular meeting of the Board of Directors, institute a procedure for imposing fines upon residents who are violating the terms and conditions of this Declaration. Such fines are intended to encourage compliance herewith. The fine so imposed shall become payable in the same manner as the general assessments and the non-payment of the same shall carry the same penalty and consequence as the non-payment of general assessments.

J. Required Size of Residence Units

For purposes hereof, required size of Residence Units shall be as follows:

1. Each Residence shall have a minimum of 1,000 square feet on the first floor (above ground) of living area.
2. No Dwelling Unit may be more than two (2) stories in height from a front elevation as viewed from the curb.
3. There shall be a minimum total square footage above ground of 1,400 square feet.

K. Sodded Yards

Except as provided for herein, the entire front, rear and side yards of every Lot and the unpaved portions of street easements contiguous thereto shall be sodded with grass deemed most appropriate at the earliest feasible time when construction in contiguous areas will not damage or interfere with the growth of such grass. Where natural terrain requires, other ground cover or similar landscaping as approved by the Association shall be permitted in lieu of sod.

L. Restrictions not Applicable to Association

The covenants and restrictions herein contained shall not apply to the activities of Willowbrook Homeowners Association, a not-for-profit corporation incorporated or to be incorporated under the laws of the Stale of Kansas, or to Declarant. Declarant may maintain, while constructing and selling improvements on the Lots, in or upon such portions of the Property as Declarant determines, such facilities as in its sole discretion may be necessary or convenient, including, but without limitation, offices, storage areas, model units and signs.

IX. RIGHTS AND OBLIGATIONS OF THE ASSOCIATION

A. The Common Areas

The Association, subject to the rights of the Owners set forth in this Declaration, shall be responsible for the exclusive management and control of the Common Areas and all improvements thereon (including furnishings and equipment related thereto), and shall keep it in good, clean, attractive, and sanitary condition, order, and repair, pursuant to the terms and conditions hereof.

B. Personal Property and Real Property for Common Use

The Association, through action of its Board of Directors, may acquire, hold and dispose of tangible and intangible personal property and real property. The Board, acting on behalf of the Association, shall accept any real or personal property, leasehold, or other property interests conveyed to it by the Declarant.

C. Rules and Regulations

The Association, through its Board of Directors, may make and enforce reasonable rules and regulations governing the use of the Property, which rules and regulations shall be consistent with the rights and duties established by this Declaration. Sanctions, in addition to those specifically set forth herein, may be imposed by the Association and may include reasonable monetary fines which shall constitute a lien upon the Owner's Lot and suspension of the right to vote and the right to use the Common Areas. In addition, the Board shall have the power to seek relief in any Court for violations or to abate unreasonable disturbances. Imposition of sanctions shall be as provided in the Bylaws.

D. Implied Rights

The Association may exercise any other right or privilege given to it expressly by this Declaration of the Bylaws, and every other right or privilege reasonably to be implied from the existence of any light or privilege given to it herein or reasonably necessary to effectuate any such right or plivilege.

E. Maintenance

The Association shall maintain and keep in good repair the Common Areas, if any, such maintenance to be funded, as hereinafter provided, the cost of such maintenance to be considered part of the expenses of the Association to be funded by assessments as herein provided. This maintenance shall include, but not be limited to, maintenance, repair, and replacement, subject to any insurance then in effect, of all landscaping and other flora, structures, and improvements situated upon the Common Area; trash removal; provision of water to all Owners; snow removal from all Common Areas, driveways and sidewalks.

F. Maintenance of Lake Areas

The Association shall properly maintain the Lakes, including, without limitation, maintaining the landscape and any improvements surrounding the Lakes and correcting the effects of material detrimental erosion or other damage caused by the flow of water into the Lakes from the surrounding property. The Obligation of maintenance contained hereunder shall include the dredging of the Lakes as may be necessitated from time to time. To satisfy such maintenance requirements, the Association shall, as set forth above, set aside a portion of the monthly General Assessment against the Lots within the Subdivision sufficient to pay for the maintenance of the Lakes and to provide a reserve for future maintenance of the Lake Areas, provided that any shortfalls thereof shall be covered by a mandatory special assessment. In the event any Lot Owner fails to pay such mandatory special assessment, the Association shall have the rights contained in this Declaration with respect to enforceable liens on affected Lots in the event a Lot Owner fails to pay any such assessment.

The Association and/or Declarant does hereby release the City from any and all past, present or future liability for any damages that may be caused from time to time to any real property or personal property, including without limitation, any Lot, residence or improvement, or to the Lakes or Common Areas resulting from or related to, directly or indirectly, the City's granting of a variance to the developer of the Property with respect to the maintenance of the Lakes or Common Areas or the City's permitting public storm water to enter the Lake Areas. The City shall have no further liability and shall be relieved from any and all past liability with respect to the obligation to expend public funds to take any action to maintain or improve the Lake Areas contained within the Common Areas. In connection therewith, the Association shall indemnify and hold the City, the Mayor, the members of the City Council and employees and agents of the City from and against any and all loss, damages, costs and reasonable expenses (including reasonable attorneys' fees) that may be incurred or suffered by any of them as a result of or in connection with any claims that may be asserted against anyone of them in connection with the Lake Areas. The Association will promptly reimburse the City for any public funds that the City may expend with respect to maintenance of or improvement of the Lakes or Common Areas in the event that the Association fails to maintain the Lakes. It is, however, acknowledged that the City is under no Obligation to so maintain or improve.

In connection with all provisions relating to the Lake Areas and the Common Areas containing the Lakes herein, the developer of the Property, F & G Development Company and/or its successor or assigns, and the City of Overland Park, shall be third party beneficiaries of all provisions herein relating to the Lake Areas and the Common Areas and the Declarant and City shall have the right to enforce any and all restrictions, obligations or other provisions regarding the Lakes.

In addition, any modification, termination or amendment of the provision regarding the Lake Areas or Common Areas as contained herein and as it affects the Lakes shall, in addition to the provisions contained herein with respect to amendment, require the approval of the City of Overland Park. If, in the future, the City of Overland Park requests that the Lakes be declared and dedicated to the City for use as a public lake and, the Association is at the time of the request in default of its obligations hereunder, the Association will effect such dedication of its interest in the Lakes without any cost or charge to the City (except for payment of the market value by the City of any improvements which immediately surround the Lakes).

G. General

The Association may enter into a contract with a third party or parties for the performance of some or a11 of the duties. It is acknowledged and agreed that the Declarant may assume responsibilities for discharging the obligations of the Association until such time as there are sufficient members in the Association so as to permit Declarant to delegate all of a certain part of such duties to the Board of Directors of the Association. The Declarant likewise reserves the right to enter into a contract with a third party or third parties for the performance of some or all of the duties hereunder and any such contracts between Declarant and third parties which by their terms are binding upon successors in interest to the Declarant shall be binding upon the Association if such contracts are so assigned. Further, Declarant does not warrant any work performed by Declarant in discharging the obligations of Declarant or the Association hereunder and no Member shall have any action against Declarant with respect thereto. Likewise, no Member shall have any action against Declarant for any delays in providing maintenance or repair in discharging the obligation of Declarant or the Association hereunder.

X. MEMBERSHIP AND VOTING RIGHTS

A. Membership

Each 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.

B. Membership Classes

The Association shall have two classes of membership:

1. Class-A Memberships. Class A Members shall be all Owners. Declarant may be a Class A Member under the provision below. Each Class A Member shall be entitled to one vote for each Dwelling Unit owned on each Lot. If more than one person or entity holds an interest in any Dwelling Unit, all such persons shall be Members. The vote for such Dwelling Unit shall be exercised as such Owners among themselves determine and in no event shall more than one vote be cast with respect to anyone Dwelling Unit.
2. Class B Memhership. The Class B Member shall be the Declarant. The Class B Member shall, until changed as set forth hereinafter, be entitle~ to four (4) votes for each Dwellng Unit which is constructed, under construction or planned for construction on the Property and has not been sold to a third party. At the time of the execution of this document, there are 112 such Dwelling Units planned for construction. The Class B Member's voting rights shall be reduced to one vote for each such Dwelling Unit upon the first to occur of the following events:

1. When the total votes outstanding in Class A Membership equal the total votes outstanding in Class B Membership; or
2. When 80% of the units have been sold to unrelated third parties.

XI. GENERAL PROVISIONS

A. Enforcement

The Association, or any Owner, shall have the right to enforce, by an action at law or in equity all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Failure by the Association or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.

B. Severability

The invalidation of any of these covenants or restrictions by judgment or court order shall in no way effect any other provision which shall remain in full force and effect.

C. Binding Nature

The covenants and restrictions of this Declaration shall run with and bind the land, for twenty (20) years from the date this Declaration is recorded after which time they shall be automatically extended for successive periods of ten (10) years. Except as otherwise set forth hereinafter, this Declaration may be amended during the first five (5) years by affirmative vote of votes pursuant to Article X representing seventy-five percent (75%) of such votes. Thereafter, this Declaration may be amended by an instrument signed by not less than seventy-five percent (75%) of each class of Members. Any Amendment hereto must be recorded. However, each "Dwelling Unit" Owner hereby agrees that it will benefit all "Dwelling Unit" Owners as potential mortgage borrowers and potential sellers of their respective "Dwelling Units", if the property is approved as a qualifying subdivision under the respective policies, rules and regulations, as adopted from time to time, by the Federal National Mortgage Association ("FNMA") , the Government National Mortgage Assocation ("GNMA") , the Federal Home Loan Mortgage Corporation ("FHLMC") , the Department of Housing and Urban Development ("HUD"), the Federal Housing Association ("FHA"), the Veterans Administration ("VA") or any other governmental agency or any other public, quasi-public or private entity which performs (or in the future may perform) functions similar to those currently performed by such entities. Declarant reserves the right and power to make, ( execute, acknowledge and record a special amendment (the "Special Amendment") to this Declaration or to the Bylaws at any time and from time to time (i) to comply with the requirements of the FNMA, FNMA, FHLMC, HUD, FHA, VA or any other governmental agency or any other public, quasi-public or private entity which performs (or may in the future perform) functions similar to those currently performed by such entites and/or (ii) to induce any of such agencies or entities to make, purchase, sell, insure or guarantee first mortgages covering the "Units". In furtherance of the foregoing, a power coupled with an interest is hereby reserved and granted to Declarant to make or consent to a Special Amendment on behalf of each "Dwelling Unit- Owner. Each deed, mortgage, or deed of trust, other evidence of obligation or other instrument affecting a "Dwelling Unit" and the acceptance thereof shall be deemed to be a grant and acknowledgement of and a consent to the reservation of the power of Declarant to make, execute, acknowledge and record Special Amendments. No Special Amendment made by Declarant shall affect or impair the lien of any first mortgage upon a "Dwelling Unit" or any warranties made by a -Dwelling Unit- Owner in order to induce any of the above agencies or entities to make, purchase, insure or guarantee the first mortgage on the Owner's "Dwelling Unit".

D. Annexation

Additional residential property and Common Areas may be annexed to the properties upon the affirmative vote of a majority of all of the Members without necessity of separate vote by each class of Members.

IN WITNESS WHEREOF, the undersigned, being the Declarant herein have hereunto set their hands and seals this 12th day of October, 1990.

DECLARANT:
F & G DEVELOPMENT COMPANY

BY_______________________
Thomas R. French, President

STATE OF KANSAS

COUNTY OF JOHNSON)

BE IT REMEMBERED, that on this 12th day of October 1990, before me, the undersigned, a Notary Public in and for the County and State aforesaid, came Thomas R. French, President of F & G Development Company, who is personally known to me to be the same person who executed, as such officer, the foregoing instrument of writing on behalf of said company and such person acknowledged the execution of the same to be the act and deed of said company.

IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my official seal the day and year last above written.
________________
Notary Public
My Appointment Expires:

 

AMENDMENT TO RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS APRIL 6, 2023

This amendment restricts the leasing or renting of homes within the Willowbrook subdivision.  

View the document in its entirety