Deed Book 1523 Pages 403 to 414
RESTATED DECLARATION OF
AUTUMN RIDGE HOMEOWNERS ASSOCIATION, INC.
APPLICABLE TO AUTUMN RIDGE SUBDIVISION
THIS RESTATED DECLARATION (the "Restated Declaration), is
made this 31st day of August, 1989, by TODDS ROAD DEVELOPMENT
CORPORATION a Kentucky corporation (the “Developer”),
AUTUMN RIDGE HOMEOWNERS ASSOCIATION, INC. (the “Corporation”)
and Robert A. Miller and Peggy J. Miller, his wife, (the "Lot
owners").
WITNESSETH:
WHEREAS, the Developer and the Corporation caused the Declaration
of Autumn Ridge Homeowners Association, Inc. dated August 18,
1989 (the “Declaration") to be recorded in the Fayette
County Clerk's Office of record in Deed Book 1521 , Page 689 in
said Clerk's office; and,
WHEREAS, the Developer has transferred certain Lots to the Lot
Owners by Deed dated August 23, 1989 of record in Deed Book 1521,
page 743 in said Clerk's office; and,
WHEREAS, the Developer, desires to make certain modifications
to the Declaration for the purpose of designating Limited Common
Area and to restate the Declaration in its entirety as modified;
and,
WHEREAS, the Corporation and the Lot Owner are, willing to consent
to such modifications.
WHEREAS, the Developer is the owner of record of the Property
(as defined hereafter in Article I) and desires to establish and
create a residential subdivision with provisions for (i) the common
maintenance of the Common and Limited Common Areas (as defined
in Article I) located on the Property, (ii) the use and enjoyment
of the Common and Limited Common Areas and (iii) the beneficial
use and enjoyment of the Lots (as defined in Article I) located
on the Property; and,
WHEREAS, the Developer desires to subject the Property together
with such additions as may hereafter be made. thereto, to the
covenants, restrictions, easements, charges and liens contained
in this Restated Declaration, and in documents entitled “Deed
of Restrictions for Autumn Ridge Subdivision” to be executed
and filed by the Developer with the Fayette County Clerk’s
office for the benefit of the Property (as defined in Article
I) (the "Covenants and Restrictions"), all of which
are for the benefit of the Property, the Developer, the Corporation
and the Owners (as defined in Article I) of the lots thereon;
and,
WHEREAS, the Developer has incorporated under the laws of the
Commonwealth of Kentucky a nonprofit corporation known and
identified as AUTUMN RIDGE HOMEOWNERS ASSOCIATION, INC., for the
purposes of (i) maintaining and administering the Common and Limited
Common Area for the beneficial use thereof by the Members (as
defined in Article I) of the Corporation; (ii) administering and
enforcing the Covenants and Restrictions filed in the Fayette
County Clerk’s Office, and the provisions of this Restated
Declaration; (iii) collecting and disbursing the assessments and
if charges hereinafter created; and (iv) engaging in any other
activities necessary and reasonable to fulfill the purposes set
forth herein.
NOW, THEREFORE, the Developer declares that the, Property is and
shall be held, transferred, sold, conveyed, and occupied subject
to the covenants, restrictions, easements, charges, and liens
hereinafter set forth, and as set forth in the Covenants and Restrictions,
which are hereby declared to be covenants running with the land.
ARTICLE I
DEFINITIONS
Section 1. The following words, when used herein, shall have the
following meaning, unless the context shall clearly prohibit same:
(a) "Common Area" shall mean and refer to the private
parks, entry walls or other amenities designated and shown as
Autumn Ridge Home Owners Association, Inc. on the Plat(s) (as
defined in this Article I) including all improvements and facilities
located thereon to be devoted to the common use and benefit of
the Owners of the Lots.
(b) “Limited Common Area” shall mean and refer to
Common Area designated and shown as Autumn Ridge Home Owners Association,
Inc. Limited Common Area on the Plat(s) (as defined in this Article)
including only those improvements and facilities located thereon
to be devoted solely to the use of abutting Lot Owners.
(c) "Lot" and "Lots” shall mean and refer
to any one or more (as applicable) of the lots of Autumn Ridge
Subdivision shown upon the Plat(s) and any improvements constructed
thereon except that the Common Area shall not be considered a
Lot for any purpose of this Restated Declaration.
(d) "Member" shall mean and refer to any Owner who is
a member of the Corporation as provided herein.
(e) “Owner" shall mean and refer to the record owner,
whether one or more persons or entities, of the fee simple title
to any Lot or, in the case of the
Developer only, the Developer as record owner, and the three individuals
designated as members of the initial Board of Directors in the
Corporation's Articles of incorporation, or any substitutes named
by the Developer in his sole discretion (the “Initial Board”);
provided, however, the term Owner shall not mean or refer to any
person or entity who holds an interest in a Lot merely as security
for the performance of an obligation.
(f) "Plat(s)" shall mean and refer to all of the Final
Record Plats of Autumn Ridge subdivision recorded now or hereafter
in the Fayette County Clerk's office, and any amendments thereto
or substitutes therefor or future Final Record Plats of additional
property containing additional units of Autumn Ridge Subdivision
as may be declared by the Developer as defined in paragraph (g)
following.
(g) “Property” shall mean and refer to the property
defined herein as 'Common Area", “Limited Common Area”
and all Lots on the Plat(s) of record now or hereafter in the
Fayette County Clerk's Office, which Property is owned by the
Developer as of this date know and designated as Tracts 2-A and
2-B of the Non-Building minor Subdivision Plat of a portion of
the Frank Sadler et al. property of record in Plat Cabinet H,
Slide 483, Fayette County Clerk's Office and 30.00 acres shown
on the Non-Building Minor Subdivision Julius G. Clark Corporation
Property Plat of records in Plat Cabinet H, Slide 184, Fayette
County Clerk's Office; being the same property conveyed to Developer
by deeds dated March 15, 1989 and March 15, 1988 of record respectively
in Deed Book 1506, Page 166 and Deed Book 1471, Page 216 in the
Fayette County Clark's Office.
The Developer reserves the right from time to time to declare
that future units of Autumn Ridge Subdivision are subject to this
Restated Declaration by filing a supplemental declaration(s) (the
“Supplemental Declaration") with the Fayette County
Clerk's Office. Upon the filing of a Supplemental Declaration,
the units so designated shall be included within the definition
of the Property and be subject to the provisions of the Restated
Declaration from the date of recording forward.
ARTICLE 2
MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION
Section 1. MEMBERSHIP. Every person or entity who is an Owner
shall be a Member of the Corporation.
Section 2. VOTING RIGHTS. The Corporation shall have two (2) classes
of voting Members:
CLASS A - All Members of the Corporation, with the exception of
the Developer, shall belong to this class and shall be entitled
to one vote for each Lot in which they hold the interest required
for membership. If more than one person or entity is an Owner
of any Lot, a11 such persons shall be Members. The vote for any
Lot owned by more than one person or entity shall be exercised
as they determine among themselves (except if such persons cannot
determine who shall cast the vote, then there shall be no valid
vote for such Lot): but in no event shall more than one vote be
cast with respect to any such Lot.
CLASS B - The Class B Member shall be the Developer. The Developer
is, as of this date, Todds Road Development Company, a Kentucky
corporation, and it shall determine who shall cast its votes.
The Class B Member shall be entitled to two (2) votes for each
in which it holds the interest required for membership, provided,
however, that the Class B Membership shall cease and become converted
to Class A membership on the happening of either of the following
events, whichever occurs earlier: (a) when the total number of
votes outstanding in the Class A membership equals or exceeds
the total number of votes outstanding in the class B membership;
or (b) upon a written release by the Developer of its Class B
Membership rights. When the Class B Membership is converted to
Class A Membership as here provided, each Lot shall be entitled
to one vote.
ARTICLE 3
PROPERTY RIGHTS IN THE COMMON PROPERTIES
SECTION 1. MEMBERS' EASEMENTS OF USE AND ENJOYMENT. Subject to
the provisions Section 3 of this Article, every Member and his
invitees and licensees, shall have a right and easement for use
of, and benefit in and to, the Common and Limited Common Area,
and such easement shall be appurtenant to and pass with the title
to every Lot except that only those Members whose Lots abut a
Limited Common Area shall have access to and use of such Limited
Common Area. The Developer shall have access to the Common and
Limited Common Area, so long as is necessary for the Developer
to develop, construct, sell or otherwise dispose of or maintain
any part of the Property subject to this Restated Declaration.
SECTION 2. TITLE TO COMMON AREAS. The Developer may retain the
legal title to the Common and Limited Areas until such time as
in the opinion of the Developer, in its sole discretion, the Corporation
is able to maintain and regulate the use of the same; provided,
however, the Developer hereby covenants that it shall convey legal
title to the Common and Limited Common Areas to the corporation
no later than at such time as Class B stock is converted to Class
A stock. When the Developer conveys legal title to the Common
and Limited Common Areas to the Corporation, the Corporation shall
accept such legal title and assume full and complete, control,
responsibility, and liability for the Common and Limited Common
Areas so conveyed.
Section 3. EXTENT OF MEMBERS' EASEMENTS. The rights and easements
of use and enjoyment hereby created shall be subject to the following:
(a) The right of the Corporation to take such steps as are reasonably
necessary to protect the Common and Limited Common Area against
foreclosure; and,
(b) The right of the Corporation to dedicate or transfer all or
any part of the Common and Limited Common Area to any public or
governmental entity or other entity authorized by law to assume
the duties and responsibilities of the Corporation, subject, however,
to such conditions as may be imposed by the Members; provided,
however, that, unless required by law, no such dedication or transfer
shall be effective unless a recordable instrument signed by Members
entitled to cast a majority of the votes of the membership has
been executed, according to the terms of which said instrument
the dedication or transfer is agreed to, and provided further
that written notice of the proposed dedication or transfer is
mailed to every Member at least sixty (60) days in advance of
obtaining any Member's signature to such an instrument.
ARTTCLE 4
RULES AND REGULATIONS
In addition to the powers and duties otherwise set forth in this
Restated Declaration, the Corporation is authorized and directed
to make provision for the maintenance, repair, reconstruction,
operation and use of the Common and Limited Common Area, to adopt
reasonable rules and regulations for the beneficial use of the
Common and Limited Common Area by the members, and to take such
other actions as are necessary, reasonable and desirable to accomplish
the purposes set forth in this Restated Declaration except such
rules and regulations shall not permit use of the Limited Common
Areas by Members other than Members whose Lots abut such Limited
Common Areas.
The Board of Directors of the Corporation (the 'Board") shall
propose rules and regulations for adoption by a majority of the
authorized votes of the members voting in person or by proxy on
such proposal. Written notice of any meeting to consider said
rules and regulations or any amendments thereto shall be given
in writing to all Members at least twenty (20) days in advance
and shall set forth the time, place and purpose of the meeting.
ARTICLE 5
COVENANT FOR MAINTENANCE ASSESSMENTS
Section 1. CREATION OF THE LIEN AND PERSONAL OBLIGATION OF ASSESSMENTS.
The Developer, for each Lot owned by it within the Property, hereby
covenants, and each Owner of any Lot by acceptance of a deed therefor,
whether or not it shall be so expressed in any such deed or other
conveyance, shall be deemed to covenant and agree to pay to the
Corporation: (1) annual assessments or charges fixed, established
and collected as hereinafter provided; (2) special assessments
for improvements, fixed, established and collected from time to
time as hereinafter provided; and (3) such other charges validly
imposed. Any annual and/or special assessments shall be equal
in amount for each and every Lot regardless of any differences
between Lots, including, but not limited to, differences in size
or value except that annual and/or special assessments for Lots
abutting a Limited Common Area nay be assessed a greater amount
for annual and/or special assessments in an amount not to exceed
50% more than the amount charged each other Lot not abutting a
Limited Common Area. The annual and special assessments and such
other charges, together with such late payment charges thereon
and costs of collection thereof as hereinafter provided, shall
be a charge on and a continuing lien upon the Lot against which
each such assessment is made. Each such assessment and charge,
together with such late charges thereon and costs of collection
as hereinafter provided, shall also be the personal obligation
of the Owner of such Lot at the time when the assessment falls
due, and of all successor Owners.
Section 2. PURPOSE OF ASSESSMENTS. The assessments and charges
levied or imposed shall be used exclusively for the improvement,
maintenance, repair, reconstruction, operation and beneficial
use and enjoyment of the Common and Limited Common Area, including,
but not limited to, the payment of taxes and insurance thereon;
provision and maintenance for planting and landscaping; provision
for the maintenance, repair, reconstruction, improvement and general
operation of the Common and Limited Common Area; provision and
payment for the cost of professional and other services, labor,
equipment, materials, management, and supervision thereof; and
for such other purposes necessary to accomplish the above-described
permitted beneficial use and enjoyment.
Section 3. BASIS OF ANNUAL ASSESSMENTS. The Board shall call a
special meeting of the Corporation for the purpose of fixing the
annual assessment. The Board shall propose an annual
assessment and the Corporation shall levy such assessment as is
proposed by the Board, provided that the assessment shall the
assent of a majority of the authorized votes of the Members voting
in person or by proxy at said special meeting. Written notice
of the special meeting provided for herein shall be sent to all
Members at least twenty (20) days in advance setting forth the
time, place, and purpose of the meeting. The assent of the Members
required herein shall not be required to be obtained if the assessment
is being made to comply with the orders of any court of competent
jurisdiction or to meet the lawful requirements of any governmental
entity.
Section 4. CHANGE IN THE BAISIS OF ANNUAL ASSESSMENTS-LEVY OR
SPECIAL ASSESSMENTS, The Corporation may increase the annual assessments
fixed by Section 3 hereof prospectively for any future period
and may levy a special improvement assessment for a specified
duration. Any such change or special assessment shall have the
assent of a majority of the authorized votes of the Members voting
in person or by proxy, at a meeting duly called for this purpose,
written notice of which shall be sent to all Members at least
twenty (20) days in advance setting forth the time, place and
purpose of the meeting.
Section 5. QUORUM FOR ANY ACTION AUTHORIZED UNDER SECTION 3 AND
SECTION 4. The quorum required for any action authorized by Article
4 and by Sections 3 and 4 of this Article V shall be the presence
at the meeting of Members, in person or by proxies, entitled to
cast twenty-five (25) percent of all the votes of the membership.
Section 6. DUE DATES OF ASSESSMENTS. The due date(s) of any special
or annual assessments or charges shall be fixed in the resolution
authorizing such assessments or charges, and shall be payable
in advance. For any Lot conveyed by the Developer during any fiscal
assessment year, the pro-rata share of such assessment year shall
be upon delivery of deed, in advance.
Section 7. BOARD OF DIRECTORS. The Board shall consist of five
(5) members in good standing, selected at large from the membership
of the Corporation, except for the Initial Board which shall consist
of three (3) members who shall be appointed in the Articles of
Incorporation, and who shall hold office until their successors
are duly elected and qualified. The members of the Initial Board
shall be eligible to serve on any subsequent Board as long as
the Developer shall retain ownership of any Lot of the Property.
The term of each member of the Board shall be one (1) year and,
may be renewed upon majority vote of the entire Corporation membership.
Each member of the Board shall serve no more than three (3) consecutive
one-year terms. A vacancy on the Board shall be filled through
appointment by the Board from the membership of the Corporation.
The principal officers of the Board shall be a President, a Secretary,
and a Treasurer, each of whom shall be elected by the Board annually.
Any officer of the
Board may be removed at any time by the affirmative vote of a
majority of the Board. Each officer's term shall be one-year,
and may be renewed upon majority vote of the Board. Each officer
shall serve no more than two (2) consecutive one-year terms. The
President shall preside at meetings of the Board, shall have general
and active management of the business of the Corporation and shall,
see that all orders and resolutions of the Board are carried out.
The Secretary shall attend all sessions of the Board, record.
any votes taken, keep minutes of the proceedings, and shall send
notice of meetings to members of the Corporation when appropriate.
The Secretary shall also keep a current list of all Corporation
members and their addresses. The Treasurer shall maintain the
financial records of the Corporation and shall see that all bills
are paid. The Treasurer shall promptly deposit all assessments
or other receipts of the corporation in an insured account in
a reputable financial institution in Lexington, Kentucky. Funds
belonging to the Corporation shall not be commingled with the
personal assets of the Treasurer or any other member of the Board.
The financial records of the Corporation shall be kept by the
Treasurer and shall be open to inspection by any member of the
Corporation at reasonable hours during regular business days.
Section 8. DUTIES OF THE BOARD OF DIRECTORS. The Board shall give
written notice of the amount of the assessment or charges against
each Lot for each assessment period at least thirty (30) days
in advance of such date or period and shall, at that time, prepare
a roster of the Lots and assessments or charges applicable thereto
which shall be kept in the office of the Corporation and shall
be open to inspection by any Owner. The Corporation shall upon
demand at any time furnish to any Owner liable for said assessment
or charges a certificate in writing signed by an officer of the
Corporation, setting forth whether said assessment or charges
have been paid. Such certificate shall be conclusive evidence
of payment of any assessment or charges therein stated to have
been paid.
Section 9. BUDGET AND ACCOUNTING. The Board shall prepare an annual
budget to facilitate the establishment of the amount to be assessed
against the membership of the corporation for common expenses.
On January 30th Of each year, the Board shall present to the members
of the corporation a full and clear statement of the activities
and financial condition of the Corporation. Such statements shall
itemize actions taken and funds disbursed on behalf of the Association
during the preceding year. All records shall be kept in accordance
with good accounting practices on a calendar year basis beginning
the first day of January of each year.
Section 10. EFFECT OF NON-PAYMENT OF ASSESSMENT OR CHARGES. If
the assessment or charges are not paid on the date when due, then
such assessment or charges shall be deemed delinquent and shall,
together with such late payment charges thereon and cost of
collection thereof as hereinafter provided, thereupon become a
continuing lien on the Lot binding upon the then Owner, his heirs,
devisees, personal representatives, successors and assigns. Furthermore,
if the assessment or charges are not paid when due, a late payment
charge as established in the resolution authorizing the levy,
of the annual or any special assessment or charge (but in no case
less than $5.00 per month or fractional part of a month if none
is so established), shall also become due and be paid, and the
Corporation may institute an action to recover the assessment
or charges and late payment charges and to foreclose the lien
against the Lot, and there shall be added to the amount of such
assessment or charges, to the extent permitted by law, the reasonable
legal fees and the costs of preparing, filing and pursuing the
complaint in such action, and in the event a judgment is obtained,
such judgment shall include late payment charges on the assessments
and charges as above provided, and such costs of the action (including
reasonable legal fees and costs) as are permitted by law.
Section 11. SUBORDINATION OF THE LIEN TO MORTGAGES. The lien for
the assessments and charges provided for herein shall be subordinated
to the lien of any bona fide mortgage or mortgages now or hereafter
placed upon a Lot subject to such assessments or charges; provided,
however, that such subordination shall apply only to the assessments
or charges which have become due and payable prior to a sale or
transfer of such Lot pursuant to a judgment and order of sale
in a foreclosure action, or any other proceedings or conveyances
in lieu of foreclosure. Such sale or transfer shall not release
such Lot from liability for any assessments or charges thereafter
becoming due, nor from the lien of any subsequent assessment or
charges.
Section 12. EXEMPT PROPERTY. The common and Limited Common Area
which is subject to this Restated Declaration shall be exempt
from the assessments, charges, and liens created herein.
ARTICLE 6
GENERAL PROVISIONS
Section I. DURATION. The covenants and restrictions of Restated
Declaration shall run with the land, and shall inure to the benefit
of and be enforceable by the Corporation or by the Owner of any
Lot subject to this Restated Declaration, and their respective
legal representatives, heirs, successors, and assigns unless changed
or amended as here-in provided, until January 1, 2010, provided,
however, that the covenants and restrictions of this Restated
Declaration shall automatically be extended until such further
time as a governmental entity, association, corporation or other
similar entity shall assume all obligations for the maintenance
and other obligations relating to the Common ,and Limited Common
Area, so as to remove the requirement and necessity for maintenance
and the other obligations, and then only upon the execution of
a recordable instrument signed by a majority
of the owners of the Lots agreeing and consenting to any transfer
or plan for redevelopment or performance of such obligations.
Section 2. NOTICES. Any notice required to be sent to any Member
or owner under the provisions of this Restated Declaration shall
be deemed to have been properly sent when mailed, postpaid, to
the last known address of the person who appears as Member or
Owner on the records of the Corporation at the time of such mailing.
Section 3. ENFORCEMENT. Enforcement of any provisions of this
Restated Declaration shall be by any proceeding at law or in equity
against any persons or entities violating or attempting to violate
any provision hereof, either to restrain violation or to recover
damages, and/or against the Lot to enforce any lien created by
this Restated Declaration. The failure by the Corporation, the
Developer, or any Owner to enforce any provisions hereof shall
in no event be deemed a waiver of the right to do so thereafter
or to enforce any other provision hereof.
Section 4. AMENDMENT. Any provisions of this Restated Declaration
may be amended in whole or in part by an instrument signed by
a majority of the Owners of record of the Lots, provided, however,
that no such amendment shall be effective until recorded in the
Fayette County Clerk's Office, unless such amendment is made and
recorded at least thirty (30) days in advance of the effective
date of such amendment, and unless written notice of the proposed
amendment is sent to every owner at least sixty (60) days in advance
of any action taken.
Section 5. SEVERABTLITY. Invalidation of any one of the provisions
of the Restated Declaration by judgment or court order shall in
no way affect any other provisions which shall remain in full
force and effect.
ARTICLE 7
COMPLIANCE WITH LOCAL ORDINANCES
The covenants and restrictions of this Restated Declaration are
subject to all regulations, ordinances, promulgated by the Lexington-Fayette
Urban County Government and all amendments thereto, and the Corporation
shall maintain the Common and Limited Common Area in conformity
with same.
ARTICLE 8
CORPORATION CONSENT
The Corporation joins in this Restated Declaration for the purpose
of consenting to and agreeing to perform the duties and obligations
imposed upon the Corporation by this Restated Declaration.
IN WITNESS WHEREOF, the Developer and the Corporation have hereunto
caused their names to be subscribed this the day and year first
above written.
TODDS ROAD DEVELOPMENT CORPORATION,
a Kentucky corporation
By Henry Vettraino
President
AUTUMN RIDGE HOMEOWNERS ASSOCIATION,
INC.
By Henry Vettraino
President
Robert A. Miller
Robert A. Miller
-
Peggy J. Miller
Peggy J. Miller
