Declaration of Covenants, Conditions,

 

Restrictions, and Easements of The Landings on Monkey Island

 

 

This Declaration is made the 21st day of December 2008, by The Landings on Monkey Island LLC, an Oklahoma limited liability company (the “Declarant”).

 

            NOTICE TO ALL OWNERS:          THIS SUBDIVISION INCLUDES THE GRAND LAKE REGIONAL AIRPORT AND TAXIWAYS FOR THE EXPRESSLY INTENDED USE AND OPERATION OF AIRCRAFT ONLY, IN CLOSE PROXIMITY TO THE RESIDENCES.  THE AIRPORT IS OPEN TO AVIATION USE.  BUYERS OF ANY LOT EXPRESSLY UNDERSTAND AND AGREE TO BE SUBJECT TO THE NOISE ASSOCIATED WITH BEING NEXT TO AN AIRPORT AND WITH HAVING AIRCRAFT OPERATE WITHIN THE SUBDIVISION.

 

Recitals

 

A.                 Declarant is the owner of and the only person, firm, or corporation having any right, title, or interest in and to a tract of land located in Delaware County, State of Oklahoma.  This tract (the “Property”) consists of all the land described on Exhibit “A” attached hereto and made a part hereof and described on the subdivision plat entitled, “The Landings on Monkey Island”, a part of the W/2 of Section 9, Township 24 North, Range 23 East, Delaware County, State of Oklahoma (the “Subdivision”) which has been or will be recorded in the office of the County Clerk of Delaware County, State of Oklahoma and which is incorporated by reference as if fully set forth herein (the “Plat”).

 

B.                 Declarant desires to subject the Property, and the lots located therein (the “Lots”) to the covenants, conditions, and restrictions set forth below which are for the purpose of creating a planned residential development for owners who are aviation pilots and/or aviation enthusiasts who wish to reside in a subdivision with taxiways where aircraft will be permitted to travel within certain areas of the Property, as well as to protect the value and desirability of the Property and Lots, and are for the purpose of distributing among the lot owners the cost of maintaining and operating the common elements located within the Property, and any improvements constructed thereon.

 

C.                 Declarant hereby declares that the Property shall be held, sold, and conveyed subject to the covenants, conditions, restrictions, reservations, and easements set forth herein.

 

D.                 Declarant certifies that it has caused the Property to be surveyed into Lots, and has caused the Plat to be made of said tract showing accurate dimensions of lots, rights-of-way, width of streets, Common Elements and land so platted as The Landings on Monkey Island, a subdivision of Delaware County, State of Oklahoma.  Declarant, declares that the Streets will be private, owned and maintained by the Association for the use and benefit of Lot Owners and their guests and other invitees.  Lake Air Blvd., to be built on  easements which run along the east side of the Property, will also be open and for the in-common use of other land owners adjacent thereto and their guests and invitees.

 

            Declarant declares that the Airport will be owned by the Association for private use with the public invited to use the Airport, subject to this Declaration and the rules and regulations for Airport use promulgated by the Association.

 

E.                  Declarant intends to create on the Subdivision a community which provides for common upkeep of certain Common Elements, including entrances, rights-of-way, medians, fences, landscaping, sprinkler, lighting systems and all improvements now existing or hereafter erected thereon, the Airport and to establish and create an entity and agency for such purpose and for the purpose of administering and enforcing the covenants and restrictions hereinafter set forth and collecting and disbursing the assessments and charges hereinafter created.

 

F.                  There has been formed under the laws of the State of Oklahoma, as a not for profit corporation, The Landings HOA Inc. for the purpose of exercising the aforementioned functions.

 

Now, Therefore, Declarant hereby declares that all of the real property described in Article II hereof is and shall be held, occupied, sold and conveyed subject to the easements, covenants, restrictions, dedications, charges and liens hereinafter set forth, all of which are for the purpose of enhancing and protecting the value, desirability, and attractiveness of the real property and all of which shall run with said real property and shall be binding on all parties having or acquiring any right, title, or interest in said real property or any part thereof, their heirs, successors and assigns, and shall inure to the benefit of each owner thereof.

 

Article I

 

Definitions

 

            The following words, when used in this Declaration or any supplemental declaration shall, unless the context shall not permit, have the following meanings:

 

A.                 "Airport" shall mean Grand Lake Regional Airport, located on the land labeled "Reserve A" on the Plat.

 

B.                 "Airport Use Fee" shall have the meaning set forth in Paragraph 6.3(a)(i).

 

C.                 “Association” shall mean and refer to The Landings HOA Inc., an Oklahoma non-profit, non-stock corporation, its successors and assigns.

 

D.                 “Board of Directors” or “Board” shall mean the Board of Directors of the Association as selected pursuant to the provisions of the By-Laws.

 

E.                  “By-Laws” shall mean the duly adopted By-Laws of the Association, as the same may be amended, changed or modified from time to time.

 

F.                  “Certificate of Incorporation” shall mean the duly adopted Certificate of Incorporation of The Landings HOA Inc.

 

G.                 "Committee or Architectural Committee" shall mean the Declarant and any people or entities appointed by Declarant or, if said Declarant and said members so delegate or are removed, the Association, all as provided in Paragraph 7.2 below.

 

H.                 “Common Elements” shall mean those areas labeled, "Reserve A" on the Plat, including the Airport, plus Lake Air Blvd., and those areas of land and any improvements or structures thereon at this time or constructed hereafter intended to be maintained by the Association and devoted to the common use and enjoyment of the Owners of the Lots, including, but not limited to, the following:

 

All land which is not a Lot, as shown on the Plat, all improvements to such land and appurtenances thereto.

 

The Airport and Lake Air Blvd. will be privately owned and maintained by the Association for use by certain others, as set forth herein, as well as use by the Owners.  The rest of the Common Elements will be devoted to the common use and enjoyment of the Lot Owners and their guests and invitees only.

 

Lake Air Blvd. will be for the in-common use by Lot Owners and land owners and developments adjacent to the Development, and is expressly for the benefit of the land labeled, "Marina Tract" on the Plat and described on Exhibit "B".  That part of Reserve A located adjacent on the North side of the Marina Tract, as shown on the Plat, may be used on a non-exclusive basis by The Marina for street and utility purposes, and is sometimes referred to herein as the "Marina Easement".

 

Lake Air Blvd. will be built on in-common easements for road and utility purposes.  Said easement rights are part of the Common Elements.  Lake Air Blvd. will be maintained by, and at the expense of, the Association.  Lake Air Blvd. will have a gate at Hwy. 129.  The use of Lake Air Blvd. will be controlled by reasonable rules and regulations promulgated by a committee of three individuals, one each selected by the Association, Island Air POA Inc., and the owner of the Marina.  All owners will act in accordance with said rules and regulations.

 

The Association will allow owners of certain lots in Island Air Subdivision (see Paragraph 8.4) and members of the public to use the Airport, subject to the provisions of this Declaration and the Association's rules and regulations governing such use.

 

I.                    “Common Expenses” shall mean the following:

 

1.                  Expenses of administration, maintenance, repair or replacement of the Common Elements to the extent such expenses are to be borne by the Association under the terms of this Declaration.

 

2.                  Expenses agreed upon as common by all Lot Owners acting through the Association; and

 

3.                  Expenses declared common by the provisions of the Declaration or by the By-Laws in force as of the date hereof or as they may later be amended.

 

J.                   “Declaration” shall mean this instrument and all of its terms and provisions by which the Property is submitted to the provisions of 60 Okla. Stat. §§851-856, together with such amendments to this instrument as may hereafter, from time to time, be lawfully made.

 

K.                “Developer” or “Declarant” shall refer to The Landings on Monkey Island, LLC, an Oklahoma limited liability company, its successors and assigns.

 

L.                  “Development” shall mean the real property described in Article II hereof within The Landings on Monkey Island, an addition to Delaware County, State of Oklahoma, and including the Common Elements and facilities, thereon and/or appurtenant thereto.

 

M.               “Dwelling House” shall mean and refer to any portion of a building situated upon the Property designated and intended for use and occupancy as a residence by a single family.

 

N.                "Fixed Base Operation Services Provider" or "FBO" shall have the meaning given to it in Paragraph 6.3.

 

O.                “Lot” shall mean and refer to any plot of land so labeled and shown upon any recorded subdivision map of all or any part of the Property.

 

P.                  “Lot Owner” or “Owner” shall mean and refer to the person, or legal entity, or the combination thereof, including contract sellers, holding the record fee simple title to a Lot in the Property, as the Lots are now, or may from time to time hereafter, be created or established.  If more than one person, or legal entity or any combination thereof, holds the record of title to any Lot, all of them shall be deemed a single record owner and shall be a single member of the Association by virtue of their ownership of the Lot.  The term “Lot Owner” or “Owner” shall not mean contract purchaser, nor shall it include any mortgagee or other person or legal entity holding an interest in a Lot as security for the performance of an obligation.

 

Q.                “Majority of Lot Owners” shall mean the owners of more than fifty percent (50%) of the Lots.  Any specified percentage of Lot Owners means such percentage in the aggregate of such ownership of Lots.

 

R.                 "Marina" or "Marina Tract" shall mean the land described on attached Exhibit "B".  The Marina is not part of the Development and is not subject to this Declaration, except to the extent the Marina is benefited by easements shown on the Plat or mentioned in this Declaration.

 

S.                  "Marina Easement" is defined in Article I, Paragraph H, above.

 

T.                  “Member” shall mean and refer to every person and/or entity who holds membership in the Association.

 

U.                 “Person” shall mean an individual, corporation, partnership, Association, Trust or other legal entity, or any combination thereof.

 

V.                 “Property” shall mean all of the land described on Exhibit “A” attached hereto, being the same parcel of real property shown on the Plat more particularly referred to in Paragraph A of the Recitals to this Declaration.

 

W.               “Street” shall mean any street, drive, boulevard, road, or taxiway located on Reserve A or as shown on the Plat, plus Lake Air Blvd., whether located on land or easement rights owned by the Association.

 

X.                 "Structures" shall have the meaning set forth in Paragraph 7.2(a).

 

Article II

 

Property Subject to This Declaration

 

2.1       Property Subject to Declaration.       Declarant hereby declares that all of the Property is held and shall be held, conveyed, encumbered, used, occupied, and improved subject to the following easements, limitations, covenants, conditions, restrictions, reservations, liens and charges, all of which are hereby declared and established and agreed to be in furtherance of a general plan and scheme for the sale of Lots, pursuant to the provisions of 60 Okla Sta. §§ 851-856 and all of which are declared and established for the purpose of enhancing and protecting the value, desirability, and attractiveness of the Property.  All of said easements, except the Marina Easement (which is for the benefit of the Marina Tract), limitations, covenants, conditions, restrictions, reservations, liens and charges are hereby established and imposed upon the Property for the benefit thereof and for the benefit of each and every individual Lot comprising a part thereof and of each ownership of one or more Lots, now or in the future, and the Owners of any interest of any kind or character in Lots, the Property, or any portion thereof.

 

            Developer reserves the right to amend this Declaration unilaterally at any time, without prior notice and without the consent of any person or entity, for the purpose of correcting scrivener's errors, or removing certain portions of the Property then owned by Developer or its affiliates or the Association from the Property and Plat provisions of this Declaration to the extent included originally in error or as a result of reasonable changes in the plans for the Development desired to be effected by the Developer.

 

            All Owners, by acceptance of a deed to their Lots, thereby automatically consent to any such change or deletion thereafter made by the Developer and shall evidence such consent in writing if requested to do so by the Developer at any time (provided, however, that the refusal to give such written consent shall not obviate the general effect of this provision).

 

            All of said easements, limitations, lines, covenants, conditions, restrictions, reservations, liens and charges shall run with the land and shall be binding on all parties having or acquiring any right, title or interest in any Lot, the Property or any part thereof, whether as sole owners, joint owner, occupant, successor, trustee, assign or otherwise.

 

Article III

 

Membership, Classes of

Members and Voting Rights

 

3.1       Membership Requirement.   Every person who is a record owner of a fee or undivided interest in a Lot in the Development shall be a member of the Association.  However, any such person who holds such interest merely as a security for the performance of an obligation shall not be a member.  Ownership of such Lot shall be the sole qualification for membership.  Membership shall be appurtenant to and may not be separated from ownership of any Lot which is subject to assessment by the Association.  Such membership shall terminate without any formal Association action whenever such person ceases to own a Lot, but such termination shall not relieve or release any such former Owner from any liability or obligation incurred under or in any way connected with the Association during the period of such ownership and membership with the Association, or impair any rights or remedies which the Owners have, either through the Board of Directors of the Association or directly, against such former Owner and member arising out of or in any way connected with ownership and membership and the covenants and obligations incident thereto.

 

3.2       Class of Membership.           The Association shall have the following two (2) classes of voting membership:

 

(a)        Class A.          Class A shall be all Owners of Lots with the exception of the Declarant.  Class A members, when a class vote is required, shall vote as a class.  Each Class A member shall be entitled to one (1) vote for each Lot in which he or she holds the interest required for membership by Paragraph 3.1 of this Article III.  When more than one (1) person holds the interest in any Lot, all such persons shall be members of the Association, and the vote for such Lot shall be exercised as the Certificate of Incorporation of the Association provides or as they among themselves determine, but in no event shall more than one (1) vote be cast with respect to any such Lot.  If one (1) Dwelling House is constructed on two or more contiguous lots, only one (1) Class A membership will be assigned to such Lots containing the single Dwelling House, but the Owner will be entitled to one vote for each Lot said Owner owns, and each such Lot will be subject the fees and assessments provided herein.

 

(b)        Class B.          The Class B member shall be the Developer.  The Class B member shall be entitled to five (5) votes for each Lot in which the Developer holds the interest required for membership in Paragraph 3.1 of this Article III.  Declarant may, at any time, but will never be required to, convert its Class B membership to Class A membership.

 

Article IV

 

Common Elements

 

4.1       Conveyance and Reservations.        Declarant hereby conveys, grants, transfers and assigns all of the Common Elements to the Association.  The Association shall hold the Common Elements conveyed to it and shall maintain the Common Elements conveyed to it subject to the following:

 

(a)                The reservation to Declarant of the right to lay, install, construct and maintain, on, over, under or in those strips across land designated on the Plat as an easement area, or on, over, under, or in any portion of any Common Element, pipes, drains, mains, conduits, lines and other facilities for water, storm sewer, sanitary sewer, gas, electric, telephone and other public utilities or quasi-public utilities deemed necessary or advisable to provide adequate service to any Lot together with the right and privilege of entering upon any Common Element for such purposes and making openings any excavations therein.

 

(b)               The reservation to Declarant of the right of access and right to enter upon any Common Element conveyed to the Association for the purpose of construction or completing the construction of improvements and the landscaping of the Common Elements.

 

4.2       Improvements as Common Elements.          The Common Elements, conveyed to the Association shall be deemed property and facilities for the use, benefit and enjoyment, in common, of each Owner.  In addition, the Airport shall be owned by the Association for the use, benefit and enjoyment of the public as well as the Owners.  Except as otherwise permitted by the provisions of this Declaration, no structure or improvement of any kind shall be erected, placed or maintained as a Common Element except:  (i) structures or improvements designed exclusively for community use, including, without limiting the generality of the foregoing, fences and walls, entrance gates, walkways roadways (without implication of the present or future existence of such items), (ii) drainage, storm water and utility systems and structures, and (iii) improvements, replacements or maintenance of the Airport.  The Common Elements may be graded, and trees, shrubs or other plants may be placed and maintained thereon for the use, comfort and enjoyment of the Owners, or the establishment, retention or preservation of the natural growth or topography of the Common Elements, or for aesthetic reasons.

 

4.3       No Exclusive Use by Owners.           No portion of any Common Element may be used exclusively by any Owner for personal gardens, storage facilities or other exclusive uses.

 

4.4       Common Elements and Airport Management.         The Association shall improve, develop, supervise, manage, operate, examine, inspect, care for, repair, replace, restore and maintain the Common Elements, including, but not limited to, the Airport, together with any items of personal property placed or installed thereon, all at its own cost and expense. 

 

4.5       Administration.           The Lot Owners and each of them, together with all parties bound by this Declaration, covenant and agree that the administration of the Common Elements shall be in accordance with the provisions of this Declaration, the Certificate of Incorporation, the By-Laws, and such rules and regulations as may be adopted by the Board, and the amendments, changes and modifications thereto as may come into effect from time to time.  In the event of any inconsistency between the provisions of this Declaration and the provisions of the Certificate of Incorporation, the By-Laws, or rules and regulations, the provisions of this Declaration shall prevail.

 

4.6       Powers and Duties of Association.    The Association, acting through the Board, unless otherwise provided herein, shall have the following powers, rights and duties:

 

(a)                Pay Common Expenses.        To pay out of the assessments and other fees levied and collected in accordance herewith, for all development, maintenance, gardening service, refuse collection, taxes, insurance and other necessary expenditures relating to the Common Elements, as well as performing or contracting trash collection, sprinkler service, certain landscaping services for the Lots, and certain other services as provided in this Declaration, the By-Laws or rules and regulations of the Association.

 

(b)               Maintenance.             Except as otherwise provided herein, the Association shall maintain or cause the Common Elements and the landscaping, improvements, facilities, and structures thereon to be maintained and kept in a good state of repair.

 

(c)                Rules and Regulations.         The Board, at any time, and from time to time, may establish, in accordance with the By-Laws, such uniform rules and regulations as the Association may deem reasonable in connection with the use, occupancy and maintenance of the Common Elements, by Lot Owners, their guests, invites, and licensees, plus, as to the Airport rules and regulations for use thereof by members of the public and the conduct of such persons with respect to aircraft, vehicles, parking, bicycle use, use and parking of aircraft, trucks and vans, facilities constructed on the Common Elements and other activities which, if not so regulated, might detract from the appearance of the Common Elements or be offensive to or cause inconvenience, noise or damage to persons residing in the Property or visiting the Common Elements.  The Association shall send a copy of such rules and regulations, together with amendments and additions thereto, to each Lot Owner upon receiving written notice of his status as an Owner.

            In addition, the rules and regulations may govern common interests of Lot Owners, such as, by way of example, and not limitation, procedures for trash collection, applying to Lots and Lot Owners and their guests and invitees on a reasonable, uniform basis.

 

(d)               Contracts for Airport Management Services.          The Board may contract for airport management services and/or fixed base operations services.

 

(e)                Contracts with Owners.         The Board, on behalf of the Association, shall have full power and authority to contract with any Owner (including without limitation Declarant, its principals or affiliates) for the performance, on behalf of the Association of services which the Board is otherwise required to perform pursuant to the terms hereof, such contracts to be on such terms and conditions and for such consideration as the Board may deem proper, available and in the best interest of the Association.

 

(f)                 Restrictions on Contracts.     Neither the Declarant nor the Association may directly or indirectly enter into any management agreement or other contract on behalf of the Association which extends beyond the date Class B membership ceases provided in Section 3.2(b) of this Declaration.  The Association may, however, following such date, enter into new management agreements or other contracts with Declarant, its principals or affiliated entities in accordance with this Declaration.

 

(g)                Security Service.        The Board may contract for a security service, and cause such service to be maintained as a Common Expense, provided that the decision to provide for a security service be at the sole option and discretion of the Association, and the Association shall have no obligation to provide such a system.

 

(h)                Insurance.       The Board shall purchase insurance of the type(s) and in amount(s) determined by the Board of Directors to be adequate coverage for the nature and extent of risks attributable to its Directors and Officers including, but not necessarily limited to, insurance for the indemnification of every Director, Officer, and Managing Agent of the Association, and their successors which is commonly known as directors' and officers' liability insurance.

 

(i)                  Liability Limitation.   Neither any Owner, the Board, any director or any officer of the Association shall be personally liable for debts contracted for, or otherwise incurred by the Association, or for a tort of another Owner, whether such other Owner was acting on behalf of the Association or otherwise.  Neither the Declarant, the Association, its directors, officers, agents or employees shall be liable for any incidental or consequential damages for failure to inspect premises, improvements or any portion thereof, or for failure to repair or maintain the same.  Declarant, the Association or any other person, firm or corporation liable to make such repairs or replacements shall not be liable for any personal injury or other incidental or consequential damages occasioned by any act or omission in the repair or maintenance of any premises, improvements or portion thereof.

 

(j)                 Reserve Funds.          The Board may establish reserve funds which may be maintained and accounted for separately from other funds maintained for annual operating expenses and may establish separate irrevocable trust accounts in order to better demonstrate that the amounts deposited therein are capital contributions and not net income to the Association, or to demonstrate that such funds are for the maintenance, repair and replacement of Airport improvements, equipment or facilities.

 

(k)               Landscaping/Sprinkler System Maintenance.         To mow and maintain the landscaping and sprinkler system installed on each lot as part of the original construction of each Dwelling House, or as subsequently approved by the Committee.

 

(l)                  Collect Fees.              In addition to the Assessments provided in Article VI, the Association may charge reasonable fees to the public for use of the Airport.  Without limiting the foregoing, the Association may charge the Airport Use Fee for each airplane which is occupying a hanger in the Island Air subdivision located directly east of the north end of the Airport.  

 

4.7       Recordkeeping.          The Board will keep or cause to be kept records with detailed accounts of the receipts and expenditures affecting the Common Elements and their administration and specifying the maintenance and repair expense of the Common Elements and any other expenses incurred by or on behalf of the Association.  The records so kept shall be available for inspection at convenient hours on working days by all Owners and mortgagees and representatives of lenders in the Property.  All records shall be kept in accordance with generally accepted accounting principles, and Owners shall be entitled to audit said records at their own expense.

 

4.8       Enforcement.              The right of each Owner to use the Common Elements shall be subject to the terms, conditions, and provisions as set forth in this Declaration and, to any rule or regulation now or hereafter adopted by the Association for the safety, care, maintenance, good order and cleanliness of the Common Elements.  All such terms, conditions, provisions, rules and regulations shall inure to the benefit of and be enforceable by the Association and Declarant, or either of them, their respective successors and assigns, against any Owner, or any other person, violating or attempting to violate the same, either by an action at law for damages or a suit in equity to enjoin a breach or violation, or to enforce performance of any term, condition, provision, rule or regulation.  The Association and Declarant shall each have the right, summarily, to abate and remove any breach or violation by any Owner at the cost and expense of the Owner.  Further, each Owner shall be entitled to enforce the provisions of this Declaration to the extent authorized and permitted by 60 O.S. §856.

 

Article V

 

Property Rights in

The Common Elements

 

5.1       Control and Access.               The Association shall own, control, maintain, repair, manage and improve the Common Elements as provided in this Declaration and in its Certificate of Incorporation and By-Laws.  Such right and power of control and management shall be exclusive.

 

5.2       Owner’s Right and Privilege.            Each Owner, in common with all other Owners, and, as to the Airport, in common with the public, shall have the right and privilege to use and enjoy the Common Elements for the purposes for which the same were designed and intended without hindering or encroaching upon the lawful rights of other Owners or, as to the Airport, and the public.  This right and privilege shall be appurtenant to and pass with the title to the Lot, but is subject to the right of the Association to suspend the voting rights and to use the Common Elements (a) for any period in which any assessment against his Lot remains unpaid, or (b) for a period not to exceed ninety (90) days for any infraction of published rules and regulations of the Association.

 

5.3       Non-Exclusive Easement of Access.                        In furtherance of the foregoing, each Lot Owner shall have a non-exclusive easement of access to, use and enjoyment of, and ingress and egress through, the Common Elements, and such easements shall be appurtenant to and shall pass with the title to every Lot, subject to the following provision:

 

Such easements shall be subject to the right conferred by this Declaration of the Board to establish uniform rules and regulations concerning the use of the Common Elements.

 

5.4       Damage to Common Elements.         Any damage to any Common Elements which is caused by the negligent act or the willful misconduct of any Lot Owner may be repaired by the Association but, in such event, the Association shall be entitled to reimbursement from the Lot Owner responsible for such damage.  Each Lot owner grants the Association a lien against his Lot(s) for such reimbursement, plus attorney’s fees and costs.  The lien may be enforced in the same manner as a lien for unpaid assessment levied in accordance with the provisions of this Declaration.

 

5.5       Permanent Character.           Each Owner’s undivided interest in the Common Elements shall have a permanent character.  Such interest shall not be separated from the Lot to which it is appurtenant and shall be deemed to be conveyed or encumbered with the Lot even though such interest is not expressly mentioned or described in the deed or other instrument of conveyance.  The Common Elements shall remain undivided, and no Lot Owner or any other person shall bring any action for partition.

 

5.6       Delegation.     Any Owner may delegate, in accordance with the By-Laws of the Association, his right to the use and enjoyments of the Common Elements, and any facilities thereon, to the members of his family, or to contract purchasers who reside on his Lot.

 

5.7       Compliance by Owner.           Each Owner shall fully and faithfully comply with the rules, regulations and restrictions applicable to the use of the Common Elements, as these rules, regulations and restrictions are from time to time adopted by the Association for the safety, care, maintenance, good order and cleanliness of the Common Elements.  Each Owner shall comply with the covenants, agreements and restrictions imposed by this Declaration on the use and enjoyment of the Common Elements.

 

5.8       Failure to Comply.     Failure or refusal by an Owner after written notice to comply with any of the rules, regulations and restrictions shall be grounds for an action to recover sums due, for damages or injunctive relief or both, and for reimbursement of all attorney’s fees incurred in connection therewith and interest on all of such amounts at the highest lawful rate, which action shall be maintainable by the Board of Directors in the name of the Association on behalf of the Owner or, in a proper case, by an aggrieved Owner.

 

Article VI

 

Covenant for Airport Use Fees and Maintenance Assessments

 

6.1       Creation of Lien and Personal Obligation of Assessments.            Each Owner of any Lot by acceptance of a deed from the Declarant therefore or any Person from whom such Owner obtained title to such Lot, whether or not it shall be so expressed in any such deed or conveyance, is deemed to covenant and agree to pay to the Association:  (1) annual assessments or charges; (2) special assessments or charges for capital improvements, (3) assessments to repair or replace the Airport runway or taxiway surfaces, and (4) all sums owed to the Association as provided herein.  Such assessments to be established, late fees, interest and costs of collection thereof, as hereinafter provided, shall be a charge on the land and shall be a continuing lien upon the property against which any such assessment is made, paramount and superior to any homestead or any other exemption provided by law, from the date that notice of such lien is filed of record by the Declarant, the Association or any Owner.  Any assessment which is received by the Association more than fifteen (15) days after its due date will be subject to a $50.00 late fee and interest as provided herein.  The annual and special assessments or charges, together with any late fees and interest at the rate of fifteen percent (15%) per annum accruing from their due date until payment is made, and the cost of collection thereof and reasonable attorneys' fees, shall be a charge on, continuing lien, upon each Lot against which an assessment is made.  Each assessment or charge, together with late fees and interest at the rate of fifteen percent (15%) per annum accruing as aforesaid, and costs and reasonable attorneys' fees incurred or expended by the Association in the collection thereof, shall also be the personal obligation of the Owner of the Lot.  The personal obligation for any delinquent assessment or charge, together with interest, costs and reasonable attorneys' fees, however, shall not pass to the Owner's successors in title, unless expressly assumed by them; provided, however, the lien above-mentioned rising by reason of such assessment or charge shall continue to be a charge and lien upon the land as provided above.  All assessments shall be equal as to each Lot, regardless of size.  Until a Lot is sold by the Developer, it cannot be assessed any annual or special assessment whatsoever.

 

6.2       Purpose of Assessments.       The assessments and charges levied by the Association shall be used exclusively for the purpose of promoting the recreation, healthy, safety and welfare of the residents in the Property and in particular for the improvement, operation, maintenance and replacement of Common Elements such as the streets, Airport runway and taxiways and certain entrances, rights of way, medians, fences, landscaping, sprinkler systems, walls within the Subdivision devoted to this purpose and related to the Common Elements, the cost of labor, equipment, utilities, and materials for the maintenance of the Common Elements and including, but not limited to, payment of insurance premiums, the payment of taxes (except to the extent that proportionate shares of such public charges and assessments on the Common Elements may be levied against all Lots on the Property by the tax collecting authority so that the same are payable directly by the Owners thereof, in the same manner as real property taxes assessed or assessable against the Lots) and insurance thereon.

 

6.3       Annual Assessments.

 

(a)        There are two (2) types of annual assessments against every Lot:

 

(a)(i)     Airport Use Fee.        This assessment will pay for the operation, management and repair of the Airport, including reserves for replacement.  The Association may split this fee with an airport manager or Fixed Base Operation Services Provider ("FBO") under a contract to manage day-to-day operations of the Airport.  Developer intends that the Association enter into a management contract with an FBO owned by an entity affiliated with one of the principal's of Developer, or an affiliated entity under this management agreement.  The Association will pay part of the Airport Use Fee to said FBO as well as certain other fees, as payment for managing the Airport.  The Association will pay taxes and insurance premiums, utilities, and reserves for replacements, as well as other Airport related expenses, as decided by the Board, from the Airport Use Fee.

 

(a)(ii)    Other Annual Fee.     This Assessment will pay all non-Airport related costs associated with the Common Elements and services to Lot Owners including, without limitation, the Streets, fences, and taxes and insurance for the Common Elements, except the Airport.  This fee may include reserves for replacements of capital improvements.

 

(b)        Procedure Governing Both Types of Annual Assessments.            Assessments shall not commence until June 1, 2009.  The first annual assessment for Airport Use Fees and other annual fees per Lot shall be determined by budgets prepared by the Board and approved by a majority vote of the Members. 

 

            From and after June 1, 2009, each of the annual assessments may be increased each year not more than twenty percent (20%) above each of the annual assessments for the previous year without a vote of a Majority of Lot Owners.

 

            Notwithstanding anything else set forth herein, there shall be no annual assessments or charges made or levied against any Lot of which Declarant is the Owner regardless of whether Declarant is a Class B Member of the Association of subsequently becomes a Class A member under the provisions of this Declaration.

 

6.4       Special Assessments for Capital Improvements.     In addition to the annual assessments or charges authorized above, the Board of Directors of the Association may levy, in any assessment year, a special assessment applicable to that year, for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair or replacement of any or all of the Airport runway or taxiways or any capital improvement located upon the Common Elements, including the necessary fixtures and personal property related thereto; however, any such assessment as to any class shall have the assent of the Majority of the Lot Owners of each class of the members of the Association, voting in person or by proxy at a meeting called for such purpose, written notice of which, setting out the purpose of the meeting, shall be sent to all members of such class not less than ten (10) nor more than thirty (30) days in advance of the meeting.  The due date for any special assessment under this paragraph shall be fixed in resolution authorizing the special assessment; however, such due date shall be at least thirty (30) days after the date of the resolution.  Notwithstanding anything else set forth herein, there shall be no special assessments made or levied against any Lot of which Declarant is the Owner.

 

6.5       Commencement Date of Annual Assessments.       Although there may have been a prior partial years' assessment as provided in Section 6.3 above, the annual assessments provided for herein for each full year shall commence and be due as to each Lot on the first day of  June, 2009, and on that date annually thereafter and be payable in advance at the beginning of each year.  The Board of Directors shall fix the amount of the annual assessment against each Lot at least thirty (30) days in advance of each annual assessment, and shall, at that time, prepare a roster of the properties and assessments applicable thereto which shall be sent every Owner subject thereto.  The Association, shall, upon demand at any time, furnish to any Owner liable for said assessment a certificate in writing signed by an officer of the Association, setting forth whether said assessment has been paid.  Such certificate shall be conclusive evidence of payment of any assessment therein stated to have been paid.  A reasonable charge may be made by the Board for the issuance of these certificates.

 

6.6       Effect of Non-Payment of Assessments and Remedies of the Association.  Any assessments or charges which remain unpaid fifteen (15) days after their due date shall become delinquent and shall, together with a late fee of $50.00 and interest thereon from the due date of fifteen percent (15%) per annum, reasonable attorney's fees and costs of collections thereon, become a continuing lien on the property which shall bind such property in the hands of the then Owner, his heirs, devisees, personal representatives, successors and assigns.  The Association may bring an action at law against the Owner personally obligated to pay the same to recover the amount for which he may become liable and/or may foreclose the lien against the Lot for such assessment.  In any such proceeding, there shall be added to the amount of such assessment the reasonable costs of preparing and filing the action, and in the event a judgment is obtained, such judgment shall include interest on the assessment as above provided and reasonable attorney's fees to be fixed by the Court together with the costs of the action.  No Owner may waive or otherwise escape liability for the assessment provided by this Declaration or otherwise levied by the Board by non-use of the Common Elements or abandonment of his Lot.  Each Owner of a Lot shall, by accepting title thereto, be deemed to have assented to proceedings for the foreclosure of any lien upon his Lot (including a foreclosure by power of sale pursuant to the Oklahoma Power of Sale Mortgage Foreclosure Act) which results from his failure to pay an assessment on the due date thereof.

 

6.7       Subordination of Lien to Mortgage. The lien of the assessments provided for herein shall be subordinate to the lien of any real estate mortgage(s) or deed(s) of trust placed upon the Lot subject to the assessment.  Sale or transfer of any Lot which is subject to any valid and bona fide mortgage, pursuant to a decree of foreclosure under such mortgage or any proceeding in lieu of foreclosure thereof, shall only extinguish the lien of such assessments as to payments thereof which became due prior to such sale or transfer.  No sale or transfer shall relieve such Lot from liability for any assessments thereafter becoming due or from the lien of any subsequent assessment.

 

6.8       Lien for Unpaid Assessments.          To evidence the lien for unpaid assessments, the Board of Directors shall prepare a written notice of assessment lien setting forth the amount of such unpaid indebtedness, the name of the Owner of the Lot, and a description of the Lot.  Such notice shall be signed by the President or a Vice-President of the Association, and shall be duly attested and acknowledged, and shall be recorded in the office of the County Clerk of Delaware County, Oklahoma.  Such lien for the Common Elements shall attach from the due date thereof and impart notice to third parties from the date of the recording thereof.  Such lien may be enforced by the foreclosing of the defaulting Owner's Lot subsequent to the recording of a notice or claim thereof by the Association in like manner as a mortgage real property.  The Owner of the Lot being foreclosed shall be required to pay to the Association the monthly assessment of the Lot during the period of foreclosure, and the Association shall be entitled to the appointment of a receiver to collect the same.  The Association shall have the power to purchase a Lot at foreclosure, and the Association shall be entitled to the appointment of a receiver to collect the same.  The Association shall have the power to purchase a Lot at foreclosure or other legal sale and to acquire and hold, lease, mortgage, vote the votes appurtenant to, convey or otherwise deal with the same.  Any mortgagee holding a lien on a Lot may pay, but shall not be required to pay, any unpaid assessment payable with respect to such Lot, and such payment shall not be deemed a waiver by the Association of default by the Lot Owner.

 

6.9       Satisfaction of Unpaid Assessments.            Upon the sale or conveyance of a Lot, all unpaid assessments against seller-owner for his pro rata share of the Common Expenses, including interest and costs and reasonable attorney's fees incurred in collection, shall be first paid out of the sale price or by the purchaser in preference to any other assessments or charges of whatever nature, except the following:

 

(a)        Assessments, liens and charges for ad valorem taxes past due and unpaid on the Lot;

 

(b)        Prior judgment liens;

 

(c)        Prior recorded mortgages;

 

(d)        Valid Mechanic's and Material men's liens arising from labor performed or materials furnished upon a Lot prior to the date of such assessment; and

 

(e)        Valid Mechanic's and Material men's liens for labor performed or material furnished upon the Common Elements to the extent of the proportionate part chargeable to the Lot Owners which constitute a part of an assessment charge for Common Expenses, satisfaction of which shall discharge the assessment to the extent of the payment made.

 

6.10     Exempt Property.       The following property subject to this Declaration shall be exempt from the assessments provided for in this Declaration:

 

(a)        All properties dedicated to and accepted by a local public authority;

 

(b)        The Common Elements;

 

(c)        All Lots owned by the Developer but only while such Lots are owned by the Developer and not thereafter; and

 

Article VII

 

Covenants, Conditions

Restrictions, and Reservations

 

            For the purpose of providing an orderly development of the entire Property, and for the further purpose of providing adequate restrictive covenants for the mutual benefit of Declarant and its successors in title to the Property, Declarant hereby imposes the following covenants, conditions, restrictions, and reservations, to which it shall be incumbent upon successors in title to adhere:

 

7.1       Residential and Hanger Use Minimum Lease Term.          The Lots and any buildings or structures now or hereafter erected on a Lot shall be occupied and used for single family residence purposes only and no Structure, as defined herein, shall be erected, altered, placed or permitted to remain on any Lot other than one (1) detached single family Dwelling House not to exceed two and one-half stories in height, guest and servants residences ancillary thereto and approved by the Committee as provided herein, one (1) private garage for not more than four nor less than two automobiles, and an aircraft hanger incidental to residential use of the Lot.  No prefabricated storage buildings shall be constructed on any Lot without the approval of the Committee according to the procedure set forth in Paragraph 7.2 herein.

 

            Leases of less than six (6) months' term are prohibited.  Owners will notify the Association of the name of each lessee, and the commencement and end of each lease term.  Lessees will comply with this Declaration and all Association rules.

 

7.2       Architectural Committee.     

 

(a)        Except for construction by Declarant (so long as Declarant owns any Lots), no residential dwelling, hanger, garage building, fence, hedge, privacy enclosure wall, deck, porch, retaining wall, driveway, sign, swimming pool, tank, hot tub, greenhouse, free standing mailbox, gazebo, or structure of any kind (collectively called "Structures") shall be commenced, erected, or maintained on the Property, nor shall any addition to (including awnings) or change or alteration herein (including alterations in exterior color or design) be made until the building plans, plot plans, and specifications, in duplicate, showing the nature, kind, shape, height, materials, color, locations, elevations and approximate cost of the Structure, additional, or alteration shall have been submitted to and approved in writing by the Architectural Committee or by any authorized and designated representative(s) of the Committee, but the signature of any one member of the Architectural Committee shall be deemed approval.  The Declarant may remove members of the Committee approved by Declarant, which may, at any time, also delegate the architectural review function to the Association, which will then form and maintain a committee of between three (3) and seven (7) members to perform architectural review duties pursuant to this Declaration, and in accordance with the By-Laws of the Association.  Declarant and all members of the Committee appointed by Declarant, may be removed from the Committee by the Board at any time after Declarant owns five (5) or fewer Lots.

 

(b)        The Committee shall consider applications for approval of plans, specifications, etc., upon the basis of conformity with this Declaration.  The Committee shall also be guided by the extent to which the proposed Structures, addition, or alteration will ensure conformity and harmony in exterior design and appearance, based upon, among other things, the following factors:  the quality of workmanship; nature and durability of materials; harmony of external design with existing structures; choice of colors; changes in topography; grade elevations and/or drainage; factors of public health and safety; the effect of proposed Structure, addition, or alteration on the use, enjoyment, and value of other neighboring properties, and/or on the outlook or view from the adjacent or neighboring properties; the suitability of the proposed Structure, addition, alteration taking into account the general aesthetic values of the surrounding areas; and taxiway and runway considerations.

 

(c)        In the event of the death or registration of any members of the Committee, the remaining members shall have full authority to designate a successor or successors.  In the event the committee, or its designated representatives, fails to approve or disapprove, within thirty (30) days, any plans and specifications submitted to it, or, in any event, if no suit to enjoin the construction has been commenced prior to the completion thereof, approval will not be required and this covenant shall be deemed to have been fully observed and satisfied.  Neither the members of the Committee, or its designated representative, shall be entitled to any compensation for services performed pursuant to this covenant.

 

7.3       Antennas.       No outside television, radio, or other antenna or satellite dishes exceeding 21" in diameter (or as otherwise allowed by the Association) shall be placed on any Lot or on any Structures thereon.

 

7.4       Minimum Area.          The enclosed and centrally heated and cooled floor area of a Dwelling House, exclusive of attics and garages, shall be not less than eighteen hundred (1,800) square feet of living space and twenty-two hundred (2,200) square feet of hanger space and garage.  Airplane hangers are not to exceed two and one-half times such area in the Dwelling House.  All hangers will have a minimum tail clearance of twelve (12) feet.  All hangers will be of steel construction.  Hanger roofs must be blue in color to match existing colors.

 

7.5       Heating and Air Conditioning.           No Dwelling House shall be permitted to be built without central heating and air conditioning as the primary source of heating and air conditioning for the Dwelling House.

 

7.6       No Lot Splits.             No Lot shall be further subdivided.

 

7.7       Boundary Limit Lines.           No Dwelling House or building shall be located, erected, placed, altered, or permitted to remain on any Lot nearer than one hundred twenty five (125) feet from the centerline of the existing runway.  No building will be located closer than ten (10) feet from any property line, except that the hanger on each Lot will be built on the side property line and will share a common wall with the adjacent hanger.

 

            No building will be located closer than twenty (20) feet from any taxiway.  For purposes of this Covenant, eves, steps and porches shall be considered part of a building.

 

7.8       Activity.          No business, trade or related activity (including by way of example, but not necessarily limited to, hanger rental, home occupations, distributorships, child care, etc.) shall be carried upon any Lot.

 

7.9       Use as Residence.     Except for guest or servants residences approved by the Committee according to the procedure set forth in Paragraph 7.2 herein, no structure other than a Dwelling House shall be used at any time as a residence, either temporarily or permanently, including, but not limited to, the restrictions that a hanger, trailer, basement, tent, shack, garage, barn or other outbuilding shall not be used on any Lot at any time as a residence either temporarily or permanently. 

 

7.10     Fences.           No fence shall be installed on any Lot without the approval of the Committee according to the procedure set forth in Paragraph 7.2 herein.  Fences shall be of wood, brick, iron or masonry construction and shall be approved in writing by the Committee.

 

7.11     Structures in Easements.       No or Structure of any type shall be permitted in any easement reserved for utilities or otherwise without the approval of the Committee according to the procedure described in Paragraph 7.2 herein.

 

7.12     Animals.          No animals, livestock, or poultry of any kind shall be maintained, raised, bred, or kept on any Lot, except that up to three (3) dogs, cats, or similar domestic household pets may be kept on a Lot provided they are not kept, bred, or maintained for any commercial purpose and provided further that they are kept in such a manner as to avoid becoming a nuisance to neighbors or adjoining property owners.

 

            All cats and dogs will have a tag indicating a current rabies vaccine.  All animals must be restricted by a leash when between the Dwelling Houses and taxiway or runway.  No pens to contain animals will be permitted without Committee approval in writing.

 

7.13     Signs.              No sign of any kind shall be displayed to the public view on any Lot or on any Structure except with the approval of the Committee according to the procedure set forth in Paragraph 7.2 herein, other than one (1) customary sign of not more than five (5) square feet advertising the property "For Sale" or except signs of not more than eight (8) square feet in area used by a builder or developer to advertise the property during construction and sales period.

 

7.14     New Construction:     All residences shall be of new construction, and no residence, part of a residence, or garage, may be moved from another area onto any Lot or the Property.  Mobile homes of any kind shall not be allowed to be placed or parked either permanently or temporarily, on any Lot.

 

7.15     Developer May Designate Contractor.        Developer reserves the right to designate the contractor who will build the Dwelling House and hanger on any Lot.  Such designation will be made in the contract of sale of a Lot between Developer and Owner.

 

7.16     Outside Storage.        No aircraft, boats or other vehicles, trailers, campers, or disassembled parts thereof shall be kept, parked or stored on any Lot except inside a fully enclosed hanger or garage.

 

7.17     Construction Time/Developer's Option to Re-Purchase Lot.  Each Lot Owner must commence construction of a Dwelling House and hanger on his Lot within one (1) year of purchasing the Lot, unless otherwise approved by Declarant.  No hanger or out building will be constructed prior to the construction of a Dwelling House on a lot.  Failure to commence construction within one (1) year will grant Developer the option, but not the obligation, to buy the Lot back from Owner for the same price Owner paid Developer for the Lot.  Once commenced, Owner will diligently complete construction of the Dwelling House, hanger and other improvements in accordance with plans and specifications approved by the Architectural Committee.

 

7.18     Detached Garages.    No detached garages or shall be permitted on any Lot except upon the approval of the Committee according to the procedure set forth in Paragraph 7.2 herein.

 

7.19     Roof Composition.     The initial roof of any Structure must be of metal or flat roof material and construction and subject to the approval of the Committee according to the procedure set forth in Paragraph 7.2 herein of the specific product and subject to the approval of the Committee according to the procedure set forth in Paragraph 7.2 herein of its aesthetic appearance.

 

7.20     Landscaping.              All Lots are to be landscaped in a style in keeping and in harmony with the area and as approved by the Committee.  All garbage cans or refuse areas are to be fully screened and covered from view from the street and from adjoining Lots.  The sprinkler system and landscaping approved by the Committee will be maintained by the Association.  All landscaping installed by an Owner without Committee approval will be maintained by said Owner.  Provided that each Owner who damages the sprinkler system or landscaping which is maintained by the Association will be responsible for reimbursing repair or replacement costs to the Association.

 

7.21     Sanitation; Repair and Maintenance.

 

(a)        All plumbing fixtures shall be connected to the public water and sanitary sewage disposal systems, and will be installed, constructed, inspected and approved in strict compliance with the minimum specifications of the applicable statutes of Oklahoma, rules and regulations of the Oklahoma State Board of Health, requirements of said systems and good plumbing industry standards.

 

(b)        The Owner of each Lot shall keep the Lot, and the buildings and other improvements thereon, in good order and repair, and free of trash or debris.

 

(c)        In the event the Owner of a Lot shall fail to maintain the Lot and the buildings and other improvements thereon as provided herein, the Association, after notice to the Owner and with the approval of the Board of Directors, shall have the right to enter upon the Lot to perform such work as is reasonably required to restore the Lot and the buildings, landscaping (including tree pruning) and other improvements thereon to a condition of good order and repair.  All costs incurred by the Association in connection with the restoration shall be reimbursed to the Association by the Owner of the Lot, upon demand.  All unreimbursed costs shall be a lien upon the Lot until reimbursement is made.  The lien may be enforced in the same manner as a lien for unpaid assessment levied in accordance with the provisions of this Declaration.

 

7.22     Clothes Dryers.          No permanent exterior clothes dryer or clothes drying line shall be erected, installed, or maintained on any Lot, or on any Structure thereon.

 

7.23     Exterior.         The principle exterior surface of each Dwelling House as well as any guests or servants residences should be comparable to those of existing Dwelling Houses.  Any deviations must be pre-approved by the Architecture Committee.  Exterior surfaces of all other Structures must be approved by the Committee.

 

7.24     Fireplaces.      All fireplaces and chimney exteriors are to be stone or brick veneer or otherwise approved by the Architecture Committee.  Exterior surfaces of all other Structures must be approved by the Committee.

 

7.25     Noxious or Offensive Activities.       No noxious or offensive activity shall be carried on, maintained, or permitted upon any Lot, Common Element, nor shall anything be done thereon which may be or will become an annoyance or nuisance to the neighborhood or which may be noxious or detrimental to health.

 

7.26     Non-Exclusive Use by Owners.         No portion of any Common Elements may be used exclusively by any Owner for personal gardens, storage facilities, or other private or exclusive uses without the prior written approval of the Association.

 

7.27     Drilling Activities.      No drilling or puncturing the surface for oil, gas or other minerals or hydrocarbons on the Property (including any Lot or Common Element) shall be permitted.

 

7.28     Interference With Airport Use.         No Lot Owner will carry on any activity, or build any structure, or have equipment on said Owner's Lot, or suffer or permit the same, if said activity, equipment, or structure would interfere in any manner with the use or operation of the Airport.

 

7.29     Children.         Minor children will be under responsible supervision at all times, and will not be permitted to enter the Airport except in the company of an adult.

 

7.30     Taxiway and Runway Violations.      No Owner or Owner's guests or invitees will be allowed on the Airport except when engaging in aviation activities permitted by this Declaration or rules and regulations of the Association.  The Association may promulgate written rules for use of the Airport, and fines for the violation thereof.  Said fines may be in excess of $500.00 for the first violation, escalating with subsequent violations.  The Association is also hereby given authority to suspend or revoke an Owner's use of the Airport for multiple violations of this Article 7.30 or its rules and regulations governing the safe and lawful use of the Airport.

 

7.31     Noise.             No Owner shall make or permit any disturbing noises on the Lot by himself or his family, servants, employees, agents, visitors or licensees, nor permit any conduct by such persons that will interfere with the rights, comforts or convenience of other Owners.  No Owner shall play or permit to be played any musical instrument, nor operate or permit to be operated a phonograph, television, radio or sound amplifier or any other sound equipment on his Lot in such a manner as to disturb or annoy other residents (applying reasonable standards).  No Owner shall conduct, nor permit to be conducted, vocal or instrumental instruction at any time which disturbs other residents.

 

7.32     Electronic Equipment/Lighting.         No electronic equipment may be permitted on any Lot which interferes with the television or radio reception of another Owner.  Household electronic equipment (eg., ham radio) shall not interfere with existing or planned future aviation and/or navigational aids.

 

            Additionally, only standard residential lighting shall be used to illuminate a Lot.  All outside lighting shall be arranged, directed and/or shielded so as to prevent any such light shining onto an adjacent road and/or other Lots.

 

7.33     Well/Septic System.   No well or septic system shall be constructed or maintained on any Lot.

 

7.34     Underground Utilities.           To the extent permitted by each utility, all utility lines will be installed underground.

 

7.35     Firearms.        There shall be no discharging of firearms on the Property.

 

7.36     Commercial Aircraft Activity.           No business, commercial enterprise shall be allowed or conducted on or from any of said Lots including specifically any commercial enterprise utilizing Owner aircraft or hangaring of non-Lot Owner aircraft.

 

7.37     Fuel Storage.              Bulk storage of gasoline and other motor fuels on any Lot is expressly prohibited.

 

Article VIII

 

Reserved Easements

 

8.1       Easements.

 

(a)        All easements as shown on the recorded Plat are hereby reserved by Declarant.  No Structure, planting or other material shall be placed or permitted to remain within these easements or within any utility or similar easements shown on the Plat, which may damage or interfere with the installation and maintenance of utilities, or which may change the direction of flow of drainage channels in the easements, or which may obstruct or retard the flow of water through drainage channels in the easements.

 

(b)        The easement area of each Lot and all improvements in it shall be maintained continuously by the owner of the Lot, except for those improvements whose maintenance is the responsibility of a governmental body or agency or a public authority, quasi public authority, utility company or the Association.  All small drainage channels, emergency overflows, or other swales which are important to abutting properties, but are not a part of the drainage system maintained by a public authority or utility company, or the Association shall be the property owner's responsibility, and it shall be the responsibility of the property owner to: keep the easements, channels and swales free of any structure, planting or other material which may change the direction of flow, or obstruct or retard the flow of surface water in the channels or swales whether they be in easements or contained on the individual property owner's lot.

 

(c)        No conveyance by Declarant of any Lot, or of any interest therein, shall be deemed to be, or construed as, a conveyance or release of these easements, or any of them, even though the conveyance purports to convey the Lot in fee simple, or by other language purports to convey Declarant's entire interest therein, but such effect shall only arise if the conveyance specifically recites it to be the intention of Declarant to thereby convey or release the easements.

 

8.2       Right to Grant Easements.                Declarant further reserve itself, its successors and assigns, the right to grant easements, rights-of-way and licenses to any person, individual, corporate body or municipality; to install and maintain pipelines, underground or above ground lines, with the appurtenances necessary thereto, for public utilities or quasi-public utilities; or to grant such other licenses or permits that Declarant may deem necessary for the improvement of the Property in, over, through, upon and across any and all of the streets, avenues, roads, courts and open spaces, and in, over, through, upon and across each and every Lot in the easement area reserved in Paragraph 8.1 of Article VIII of this Declaration or as shown on the Plat.  No street, avenue, road, court, open space or easement shall be laid out or constructed through or across any Lot, except as set forth in this Declaration, or as laid down and shown on the Plat, without the prior written approval of Declarant.

 

8.3       Easement for Sprinkler System and to Maintain Certain Landscaping. Declarant and the Association are hereby given an easement across the exterior portions of each Lot to maintain, repair, relocate and replace the sprinkler system and landscaping, including mowing lawns, which were approved by the Association and installed on each Lot.  The sprinkler system for each lot will be a central system servicing other Lots and maintained by the Association.

 

8.4       Easement to Certain Island Air Subdivision Lot Owners.   The Airport, as stated elsewhere herein, is open to the public.  Without limiting the foregoing, Declarant hereby grants easements for the in-common use of the Airport, including the runway and taxiways, for aviation purposes, to the owners of Lots 1, 2, 10, 11, 12, 13, and 14-23 inclusive, of Island Air subdivision to Delaware County, according to the recorded plat thereof, subject to said owners paying an Airport Use Fee per aircraft kept on said Island Air lots as provided in Paragraphs 4.6(l) and 6.3(a)(i) herein and adhering to applicable provisions of this Declaration, including rules and regulations adopted by the Association for the use of the Airport.

 

8.5       Public Easements.      Fire, police, health and sanitation and other public service personnel and vehicles shall have a permanent and perpetual easement for ingress and egress over and across such Common Elements in the performance of their respective duties.

 

Article IX

 

Hanger Common Wall Provisions

 

9.1       Introduction.               All hangers will be built partially on each of two (2) adjacent Lots, with a common wall ("Party Wall") built on the lot line which separates the two (2) Lots.  The Party Wall will divide each hanger into two (2) sections, with each Owner (referred to in this Article IX as "Owner 1" and "Owner 2") having exclusive ownership of his part of the hanger, to the center of the Party Wall, subject to the terms of this Article IX.  For the sake of convenience, Owner 1's portion of the hanger is referred to herein as "Hanger 1" and Owner 2's portion of the hanger is referred to as "Hanger 2".

 

9.2       Party Wall Declaration.         Each Party Wall, when erected, is hereby declared to be and shall become a Party Wall between each Hanger 1 and each Hanger 2, under the laws of the State of Oklahoma, and Owner 1 and Owner 2 shall have the right to use the same jointly with each other.

 

9.3       Creation of Easements.         Each Owner does hereby transfer, assign, set over and convey to the other an easement in the land covered or to be covered by the Party Wall as may be necessary to carry out the terms of this Agreement.

 

9.4       Maintenance of Party Wall.              The cost of maintaining the Party Wall shall be borne equally by the Owners on either side of the Party Wall.

 

9.5       Damage to Party Wall.          In the event of damage or destruction of the Party Wall from any cause other than the negligence of either Owner 1 or Owner 2 or their guests and invitees, Owner 1 and Owner 2 shall, at their joint expense, repair or rebuild the Party Wall, and each of the parties hereto shall have the right to the full use of the Party Wall so repaired or rebuilt.  If the negligence of the Owner of either Hanger 1 or Hanger 2 or their respective guests and invitees shall cause damage to or destruction of the Party Wall, the negligent party shall bear the entire cost of repair or reconstruction.  If either Owner shall neglect or refuse to pay its share of repair or reconstruction, or all of such cost for repair or reconstruction in the case of negligence, the other party may have the Party Wall repaired or restored and shall be entitled to have a mechanic's and materialman's lien on the premises and tract of land owned by the party so failing to pay for the amount of the defaulting party's share of the repair or replacement cost.

 

9.6       Breaking Through Party Wall.          Each of the two (2) Owners shall have the right to break through the Party Wall for the purpose of repairing or restoring sewerage, water, and other utilities, subject to the obligation to restore the Party Wall to its previous structural condition and appearance at the repairing party's expense, and the obligation to pay the other party any damages negligently caused thereby.  If breaking through the Party Wall is for the benefit of both Hanger 1 and Hanger 2, then all costs of repairing and restoration shall be borne equally by the parties hereto unless such repairing and restoration is required solely because of the negligence of one party, in which case the negligent party shall bear the entire cost.

 

9.7       Use of Party Wall.      Each of the two (2) Owners shall have the right to the full use of the Party Wall to support joists, crossbeams, studs and other structural members as required for their respective Hanger, so long as such use shall not injure the building of the other Owner, specifically including without limitation, adequate structural support for the other Hanger, and providing that such use shall not impair the value or limit the use of the easement to which the other building is entitled.

 

9.8       Mutual Right of Entry.          In any and all construction work carried out and performed under the provisions of this Article IX, the Owner doing or performing such construction shall have the right to enter on the adjoining Hanger of the other Owner insofar as may be reasonably necessary in connection with such construction work.  The Owner performing such construction shall take and observe due precaution and care not to damage the adjoining Hanger or the Property of the other Owner thereon.

 

9.9       Quality of Construction.        Any and all construction work carried on or performed pursuant to the provisions of this Article IX shall be conducted and performed in a good, substantial, and workmanlike manner in strict conformity to all governmental laws, ordinances, and regulations, and any required approval of the Committee.

 

9.10     Mortgages.     The provisions of this Article IX shall be prior and superior to any mortgage lien encumbering either Lot insofar as the other Lot is concerned.  The easements and all other rights whatsoever granted herein to each of the Owners constitute appurtenances to the premises benefited.  However, any mortgagee taking a mortgage on either Lot and building thereon or any part thereof from one Owner shall take said mortgage subject to the ownership, rights and privileges of the other Owner.

 

Article X

 

General Provisions

 

10.1     Enforcement.              The Association, or any Owner, shall have the right to enforce all covenants, conditions, restrictions, reservations, liens, or charges now or hereafter imposed by the provisions of this Declaration.  Such enforcements shall occur by any proceeding at law or in equity against any person or persons violating or attempting to violate any covenant or restriction, either to retraining violation or to recover damages or other relief including attorney's fees, and against the land to enforce any lien created by these covenants.  Failure by the Association or 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.

 

10.2     Duration.        All of the covenants, conditions, and restrictions contained in this Declaration shall run with and bind the Property and shall inure to the benefit of and be enforceable by the Association, Declarant, or the Owner of any Lot subject to this Declaration, their respective legal representatives, heirs, successors and assigns, for a term of twenty-five (25) years from the date of recordation of this instrument, after which time said covenants and restrictions shall be automatically extended for successive periods of ten (10) years; however, the Owners representing three fourths (3/4's) of the Lots herein platted, may, at the end of such twenty-five (25) year term or at the end of any successive ten (10) year period thereafter, by a written instrument, signed by all of such persons and recorded in Delaware County, State of Oklahoma, vacate or modify all or any part of this Declaration and the covenants and restrictions herein contained.

 

10.3     Right to Assign.         The Developer may, by appropriate instrument, assign or convey to any persons, organizations or corporation, any or all of the rights, reservations, easements and privileges herein reserved by it, and upon such assignment or conveyance being made, its assigns or grantees may, at their option exercise, transfer or assign such rights, reservations, easements and privileges or any one or more of them at any time or times as though directly reserved by them or it in the instrument.  Any such assignment or transfer shall be evidenced by and appropriate instrument recorded in Delaware County, State of Oklahoma, and upon recordation thereof the grantee or grantees of such rights and powers shall thereafter have the right to exercise and perform all of the rights and power reserved by or conferred upon Declarant by this Declaration.

 

10.4     Amendments by Membership.          This Declaration may be amended, in writing, by the members of the Association at a duly constituted meeting called for such purpose or in any regular meeting so long as the notice of such meeting sets forth the complete text of the proposed amendment, and a quorum is established.  No amendment shall be effective unless approved, in writing, by the Owners representing seventy-five percent (75%) of the Lots present in person or by proxy at the meeting at which the vote is taken, provided that Declarant shall have six (6) votes for each Lot it owns at the time of the vote.

 

10.5     Notices/Registration of Mailing Address.                The Owner or several Owners of an individual Lot shall have one and the same registered mailing address to be used by the Association for mailing of statements, notices, demands, and all other communications, and such registered address shall be the only mailing address of a person or persons, firm, corporation, partnership, association, or other legal entity or any combination thereof to be used by the Association.  Such registered address of an Owner or Owners shall be furnished by such Owner(s) to the Managing Agent of the Association or Board of Directors within fifteen (15) days after transfer of title, or after change of address, and such registration shall be in written form and signed by all of the Owners of the Lot or by such persons as are authorized by law to represent the interest of the Owner(s) thereof.  Any statements, notices and demands intended to be served upon an Owner, and all other communications shall be deemed to have been properly sent when mailed by first class mail, postage prepaid, to the last known registered address of the person who appears as a member or Owner on the records of the Association at the time of such mailing.  All notices, demands or other notices intended to be served upon the Board of Directors of the Association or to the Association shall be sent by certified mail, postage prepaid, to The Landings HOA Inc., 56351 East Highway 125, Afton, Oklahoma  74331.

 

10.6     Exculpation of Unavoidable Loss.                 The Association shall not be liable for any loss to any Owner or inflicted upon any Lot or the property or the Owner situated therein, brought about by flooding, water damage caused by acts of God, or other force majeure.  It is intended that for losses of this nature, each Owner will bear the same or effect his own insurance to cover the same.

 

10.7     Severability.               The invalidation of any of the provisions of this Declaration, either by judgment or court order or otherwise, shall not affect any of the other provisions, all of which shall remain in full force and effect.

 

10.8     Governing Law.          This Declaration and any amendments thereto shall be governed by, interpreted, performed, and constructed in accordance with the laws of the State of Oklahoma.

 

10.9     Conveyances by Declarant.              Each conveyance of a Lot, or of any interest in the Lot, by Declarant, shall be deemed to be the subject to this Declaration and its provisions whether or not the deed conveying the Lot shall so state.  Declarant shall hold, and hereafter grant and convey the Lots, subject to the covenants, conditions and restrictions herein set forth, which are imposed upon the Lots for the benefit of Declarant, the Association and the Owners, and their respective personal representatives, successors and assigns, to the end and intent that each owner shall hold his Lot subject to the provisions of this Declaration.

 

EXECUTED THE DAY HEREINABOVE FIRST WRITTEN.

 

 

            DECLARANT:                        THE LANDINGS ON MONKEY ISLAND LLC,                                                      an Oklahoma limited liability company

 

 

                                                By:       _________________________________________

                                                            Paul Staten, Manager

 

 

 

ACKNOWLEDGMENT

 

STATE OF OKLAHOMA      )

                                                ) ss:

COUNTY OF ____________            )

 

            The foregoing instrument was acknowledged before me this ______ day of ____________________, 200___, by Paul Staten, as Manager of The Landings on Monkey Island LLC, an Oklahoma limited liability company.

 

 

                                                                                                                                                                                                                        ___________________________________

                                                                        Notary Public

 

My Commission No.:

__________________

 

My Commission Expires:

___________________

           (S E A L)

 

 

 


EXHIBIT "A"

 

THE LANDINGS ON MONKEY ISLAND, A PART OF THE W/2 OF SECTION 9, TOWNSHIP 24 NORTH, RANGE 23 EAST OF THE INDIAN BASE AND MERIDIAN, DELAWARE COUNTY, STATE OF OKLAHOMA, ACCORDING TO THE RECORDED PLAT THEREOF DESCRIBED BY METES AND BOUNDS AS:

 

 

Commencing at the Northwest corner of said Section 9; Thence S 01°53'35" E along the West line of Section 9 a distance of 50.00 feet to a point on the South Right-of-Way line of Highway 125 and POINT OF BEGINNING; Thence continuing  S 01°53'35" E along said West line a distance of 1483.86 feet; Thence N 84°20'25" E a distance of 12.42 feet; Thence S 43°25'34" E a distance of 130.03 feet; Thence S 35°05'34" E a distance of 44.24 feet; Thence N 85°35'34" W a distance of 80.50 feet; Thence S 86°49'26" W a distance of 27.21 feet; Thence S 55°14'26" W a distance of 18.59 feet to a point on said West line of Section 9;  Thence S 01°53'35" E along said West line a distance of 1551.86 feet; Thence S 26°37'34" E a distance of 267.76 feet; Thence N 25°31'25" E a distance of 5.74 feet; Thence N 15°18'26" E a distance of 47.45 feet; Thence N 33°37'26" E a distance of 132.51 feet; Thence N 48°09'26" E a distance of 153.04 feet; Thence N 68°31'26" E a distance of 68.00 feet;  Thence S 18°15'34" E a distance of 164.32 feet; Thence S 17°32'26" W a distance of 68.37 feet; Thence S 00°59'34" E a distance of 98.27 feet; Thence S 06°22'34" E a distance of 123.40 feet; Thence S 07°09'34" E a distance of 196.22 feet; Thence S 14°23'34" E a distance of 75.80 feet; Thence S 47°11'34" E a distance of 86.18 feet; Thence S 59°51'34" E a distance of 50.82 feet; Thence N 73°02'26" E a distance of 99.64 feet; Thence N 31°36'26" E a distance of 40.00 feet; Thence N 22°30'26" E a distance of 137.10 feet; Thence N 09°15'26" E a distance of 64.50 feet; Thence N 07°06'26" E a distance of 12.83 feet; Thence N 10°28'49" W a distance of 964.18 feet; Thence N 76°16'09" E a distance of 117.77 feet; Thence S 61°02'34" E a distance of 84.70 feet; Thence S 51°44'37" E a distance of 146.07 feet; Thence S 51°44'34" E a distance of 22.20 feet; Thence N 10°33'50" W a distance of 1660.57 feet to the Northwest corner of ST. ANDREWS HARBOR PHASE I - AMENDED; Thence N 19°46'39" E a distance of 94.51 feet; Thence N 72°30'51" E a distance of 562.05 feet; Thence N 42°48'57" E a distance of 298.00 feet; Thence N 02°40'50" W a distance of 288.82 feet; Thence S 80°11'51" W a distance of 822.23 feet; Thence N 01°57'35" W a distance of 34.58 feet; Thence S 88°59'38" W a distance of 168.06 feet; Thence N 18°18'06" W a distance of 409.43 feet; Thence N 01°35'47" W a distance of 150.00 feet to a point on the South Right-of-Way line of Highway 125; Thence S 88°24'13" W along said South Right-of-Way line of Highway 125 a distance of 353.75 feet to the POINT OF BEGINNING.

 

Containing 2,745,364.50 square feet or 63.025 acres, more or less.

 


EXHIBIT "B"

 

LEGAL DRESCRIPTION - MARINA TRACT

DELAWARE COUNTY, OKLAHOMA

 

(Shown for Reference Only - Not Part of The Landings on Monkey Island Plat)

 

A tract of land located in the West half of Section 9, Township 24 North, Range 23 East of the Indian Base and Meridian in Delaware County, Oklahoma more particularly described as follows;

 

Commencing at the Northwest corner of said Section 9; Thence S 01°53’35” E along the West line of Section 9 a distance of 50.00 feet to a point on the South Right-of-Way line of Highway 125; Thence continuing  S 01°53’35” E along said West line a distance of 1483.86 feet; Thence N 84°20’25” E a distance of 12.42 feet; Thence S 43°25’34” E a distance of 130.03 feet; Thence S 35°05’34” E a distance of 44.24 feet; Thence N 85°35’34” W a distance of 80.50 feet; Thence S 86°49’26” W a distance of 27.21 feet; Thence S 55°14’26” W a distance of 18.59 feet to a point on said West line of Section 9;  Thence S 01°53’35” E along said West line a distance of 1551.86 feet; Thence S 26°37’34” E a distance of 267.76 feet; Thence N 25°31’25” E a distance of 5.74 feet; Thence N 15°18’26” E a distance of 47.45 feet; Thence N 33°37’26” E a distance of 132.51 feet; Thence N 48°09’26” E a distance of 153.04 feet; Thence N 68°31’26” E a distance of 68.00 feet;  Thence S 18°15’34” E a distance of 164.32 feet; Thence S 17°32’26” W a distance of 68.37 feet; Thence S 00°59’34” E a distance of 98.27 feet; Thence S 06°22’34” E a distance of 123.40 feet; Thence S 07°09’34” E a distance of 196.22 feet; Thence S 14°23’34” E a distance of 75.80 feet; Thence S 47°11’34” E a distance of 86.18 feet; Thence S 59°51’34” E a distance of 50.82 feet; Thence N 73°02’26” E a distance of 99.64 feet; Thence N 31°36’26” E a distance of 40.00 feet; Thence N 22°30’26” E a distance of 137.10 feet; Thence N 09°15’26” E a distance of 64.50 feet; Thence N 07°06’26” E a distance of 12.83 feet to the POINT OF BEGINNING; Thence N 10°28’49” W a distance of 964.18 feet; Thence N 76°16’09” E a distance of 117.77 feet; Thence S 06°56’34” E a distance of 47.70 feet; Thence S 08°32’34” E a distance of 96.30 feet; Thence S 09°04’34” E a distance of 117.30 feet; Thence S 27°48’34” E a distance of 108.00 feet; Thence S 37°34’34” E a distance of 185.69 feet; Thence S 06°29’26” W a distance of 170.00 feet; Thence S 28°25’26” W a distance of 143.00 feet; Thence S 23°10’26” W a distance of 112.80 feet; Thence S 07°06’26” W a distance of 77.17 feet to the POINT OF BEGINNING, LESS AND EXCEPT that part taken by GRDA.

 

Containing 125,115.88 square feet or 2.872 acres, more or less

 

Basis of Bearings; Oklahoma State Plane Coordinate System, North Zone

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