Indentures

Indentures of Trust and Restrictions

Table of Contents

Section Page

Definitions. ……………………………………………………………………… 3

Property Subject to this Indenture. ………………………………… 5
Creation of Association. …………………………………………………. 5
Duration. …………………………………………………..……………………. 5
Selection of Trustees: Meetings of Owners. …………………. 6
Reservation of Expenditures. ………………………………….……. 9
Easements and Property Rights. …………………………………… 10
Assessments. ……………………………………………………………….. 12
Architectural Control. …………………………………………………… 15
Trustees’ Duties and Power. …………………………………………. 15
Use Restrictions. …………………………………………….…………….. 18
General Provisions. ……………………………………………………….. 20
Signatures ……………………………………………………………………… 21
Exhibit A: Description of the Properties ………………………. 26

Reference for original document: Book 8593 page 911

Original document being 21 pages long.

Clayton Woods

Indenture of Trust and Restrictions

THIS INDENTURE, made this 5th day of May, 1989, by McBride & Son Associates, Inc., a Missouri Corporation, (hereinafter referred to as “Grantor”); and RICHARD T. SULLIVAN JR., CARL W. LEHNE and ROBERT W. HENDERSON, (hereinafter collectively called ‘Trustees’);

WITNESSETH, THAT:

WHEREAS, Grantor is the owner of certain real property located in St. Louis County, Missouri, and desires to create thereon a planned residential community to be known as “CLAYTON WOODS”, (The “Community”) with open spaces, streets, roads, walkways and other common ground and facilities for the benefit of the Community; and

WHEREAS, Grantor desires to insure compliance with those requirements and the general purposes and objectives upon which the Community has been established; and

WHEREAS, all reservations, limitations, conditions, easements and covenants herein contained (hereinafter sometimes referred to as “covenants and restrictions”) are jointly and severally for the benefit of Grantor and all persons who may purchase, hold or own from time to time any of the property covered by this Indenture:

NOW, THEREFORE, Grantor declares that the property described in the Exhibit A and such additions thereto as may hereafter be made pursuant to this Indenture is and shall be held, transferred, sold, conveyed and occupied subject to the covenants and restrictions hereinafter set forth:

DEFINITIONS:

The following words when used in this Indenture (unless the context shall prohibit or clearly indicate otherwise) shall have the following meanings:

(a) “Association” or “Clayton Woods Association” shall mean and refer to the Clayton Woods Association, and its successors and assigns.

(b) “The Properties” shall mean and refer to all such existing properties, and additions thereto, as are subject to this Indenture.

(c) “Common Properties”, “Common Property” and “Common Ground” shall mean and refer to those areas of land owned by the Association and/or the easement, licensed or other occupancy of use rights which the Association, or the Trustees on its behalf, may have in any portion of the Properties, whether as an appurtenance thereto or otherwise and which are intended to be devoted to the common use and enjoyment of the owners of Properties, including, without limitation, parks, open spaces, playgrounds, streets, subdivision entrances areas and monuments, street lights, storm water control easement areas and facilities, paths, walkways, and other trail systems, and other facilities for the benefit in common of such owners.

(d) “Trustees” shall mean the Trustees named herein and their successors.

(e) “Lot” shall mean and refer to the subdivided parcels of land shown on any final recorded subdivision plat of the Properties, with the exception of the Common Properties as herein defined, to be improved with Single Family Dwellings.

(f) “Single Family Dwelling” shall mean and refer to a building which was initially constructed to contain one dwelling unit.

(g) “Owner” shall mean and refer to the owner of record, whether one or more persons or entities, of the fee simple title to any lot situated upon the Properties, but shall not mean or refer to any Mortgagee unless and until such Mortgagee has acquired title pursuant to foreclosure or any proceeding in lieu of foreclosure.

(h) “Member” shall mean and refer to all those Owners who are members of the Clayton Woods Association.

(i) “Mortgage” and “Mortgagee” shall mean and refer also to a deed of trust and the trustee and beneficiary under a deed of trust respectively.

(j) “Approved density” shall mean and refer to the maximum number of dwelling units which have been approved for the Properties by the St. Louis County Department of Planning (and authorized by the St. Louis County Council if necessary or appropriate), as such number may be amended from time to time.

2. PROPERTY SUBJECT TO THIS INDENTURE:

(a) The real property which is, and shall be held, transferred, sold, conveyed and occupied subject to this indenture is located in St. Louis County and is more particularly described in the legal description contained in Exhibit A attached hereto and made a part of hereof by this reference.

(b) The Grantor, in its sole discretions, may from time to time add to the Properties subject to these covenants and restrictions any such land as is now owned or hereafter owned or approved for addition by the Grantor. The additions authorized under this section shall be made by executing and filing of record in the St. Louis County an instrument executed by Grantor which shall extend this Indenture to such additional land. The instrument may contain such complementary additions and modifications of the covenants and restrictions contained in this Indenture a may be necessary to reflect the different character, is any, of the added land and as are not inconsistent with the scheme of this Indenture, and may limit the availability of the Common Properties, or portions thereof, including the prohibition of use thereof, to such added land.

3. CREATION OF ASSOCIATION:

All of the present and future owners of any Lot as is now or shall later become subject to this Indenture shall automatically be a member of the group of property owners hereby established and known as “Clayton Woods Association” (“Association”) and, as such, shall have all the rights, privileges, duties and liabilities as are prescribed under the terms and provisions of this Indenture.

4. DURATION:

The covenants and restrictions of this Indenture shall run with and bind the land in perpetuity until the subdivision is vacated or unless terminated as provided herein. This Indenture may be terminated by an instrument agreeing to terminate this Indenture signed by the then Owners of two-thirds (2/3) of the Lots subject hereto and by the Director of Planning of St. Louis County. No such agreement of termination shall be effective unless made and recorded one (1) year in advance of the effective date of such termination, and unless written notice of the proposed agreement of termination is sent to every Owners at least ninety (90) days in advance of any action taken. In the event the subdivision is vacated, this Indenture shall terminate and thereafter fee simple title to the Common Properties shall vest in the then Lot Owners as Joint Tenants. The rights of the Joint Tenants shall be exercisable appurtenant to and in conjunction with their Lot Ownership. Any conveyance or change in the ownership of any Lot shall convey with it ownership in the Common Properties, and no interest in the Common Properties shall be conveyed by a Lot Owner except in conjunction with the sale of a Lot. The sale of any Lot shall carry with it all the incidents of ownership of the Common Properties although such is not expressly mentioned in the deed of conveyance; provided, however, that no right or power conferred upon the Trustees shall be abrogated.

5. SELECTION OF TRUSTEES: MEETINGS OF OWNERS:

There shall be three (3) Trustees. The original Trustees are the persons named herein. During the period of service of the original Trustees or their appointed successors, one or more shall be subject to removal by Grantor with or without cause, and Grantor shall have the exclusive right to designate the successor to such removed Trustee for his or her unexpired period of service as provided for hereunder. Should any of the named Trustees, or their appointed successors, die, resign or cease to hold office as set out, or decline to act or become incompetent or unable for any reason to discharge the duties, or avail himself or herself of or exercise the right and powers hereby granted or bestowed upon them as Trustees under this Indenture, then Grantor shall the exclusive right to designate the successor thereto for his or her unexpired period of service as provided for hereunder. In the event that the provisions of this Indenture cannot be fulfilled by reason of unfilled vacancies among the Trustees, a Lot Owner my petition the St. Louis County Council (and the Council shall have the right and power to appoint a trustee to fill the vacancy during said interim (hereinafter referred to as “Interim Trustee”). Any Interim Trustee who is not a Lot Owner shall receive a reasonable fee for services rendered and the fee shall be determined by the Trustees who are not Interim Trustees. The fee shall be levied as a special assessment against the Lot Owners which assessment shall not be subject to any limitations on special assessments, is any, contained in this Indenture.
Until such time as Grantor has sold and conveyed all the Lots which may be subjected to this Indenture (as permitted by the Approved Density) to persons or entities other than a successor builder or developer the following procedure for designating successor Trustees shall be followed:
- After Grantor has sold and conveyed fifty percent (75%) of the lots which may be subjected to this Indenture (as permitted by the Approved Density) to persons other than for development, Richard T. Sullivan, Jr., or his or her appointed successor shall resign and his or her successor shall be elected by the Members of the Association at a special meeting of the Members to be called thereafter, such successor being the nominee receiving the highest number of votes cast. Such Trustee shall serve as Trustee until all Trustees are elected by Members of the Association under the provisions of Section 5(c) following.
- After Grantor has sold and conveyed ninety-five percent (95%) of the Lots which may be subjected to this Indenture (as permitted by the Approved Density) to persons other than for development, Carl W. Lehne, or his or her appointed successor shall resign and his or her successor shall be elected by the Members of the Association at the special meeting of the Members to be called thereafter, such successor being the nominee receiving the highest number of votes cast. Such Trustee shall serve as Trustee until all Trustees are elected by Members of the Association under the provisions of Section 5(c) following.
- Grantor, at its sole option, may (but shall not be required to) appoint a second Trustee from the membership of the Association prior to the time designated for election of a second Trustee as set out in paragraph 5 (b)(ii) above. In anticipation of Grantor exercising this option, the Association may call a special election in accordance with the provisions of this Indenture to elect a Member of the Association to be the nominee for Trustee to be appointed by the Grantor under the provisions of this subparagraph (iii). In the event the Grantor does appoint the nominee elected by the Association as the second Trustee prior to the time set forth in the paragraph 5(b)(ii) above, then such nominee shall become a Trustee with full powers and shall not be subject to removal by Grantor, just as if such nominee were elected pursuant to the provisions of 5(b)(ii), and no Trustee shall be elected by the Associations members under the provisions of 5(b)(ii) and appointed nominee shall serve as Trustee until all Trustees are to be elected by the members of the Association, under the provisions of paragraph 5(c) following. Grantor shall exercise its option to appoint the Association nominee by recording a written instrument evidencing the exercise of such option in the St. Louis County land records.
After Grantor has sold and conveyed all the Lots, which may be subjected to this Indenture (as permitted by the Approved Density) other than to a successor builder or developer, the following procedure shall be followed:
- All of the then Acting Trustees shall resign: and
- At a special meeting of the Members of the Association, three (3) Trustees shall be elected, one for a term of three years (3), one for a term of two (2) years and the third for term of one (1) year.
- After the expiration of the term of office of the Trustees elected as provided in Section 5(c)(ii), each successor Trustee shall be elected by Members of the Association, and each such successive Trustee shall serve for a term of three (3) years so that the terms shall be continuously staggered, one (1) Trustee being elected at each annual meeting of the Members of the Association.
Following each annual meeting of the Association as provided herein, the Trustees shall designate one (1) of its members to serve as Chairman, one (1) member to serve as Secretary, and one (1) member to serve as Treasurer, until the time of the next following annual meeting.
There shall be an annual meeting of the Association (subject to the provisions of Section 5(J) hereof) to be held on the first Saturday of March each year during the term of this Indenture, said meeting to be held at a convenient place in the County of St. Louis, and there maybe be special meetings of the Association as may be called by any one the Trustees, also to be held at a convenient place in the County of St. Louis. Not less than ten (10) days’ notice in writing to each Member of the Association of the time and place of any annual or special meeting, shall be given by the Trustees or by the Trustee calling said meeting, by depositing same in the United States mail, properly addressed to the address shown the real estate tax assessment records for each Lot Owner and with postage prepaid. The successor to an elected Trustee whose term has expired shall be elected at the special meeting called for that purpose. At any annual or special meeting each Lot shall be entitled to one (1) vote and any action or proposal to the approved shall require approval by a majority of votes cast at such meeting. Any vote may be cast in person or by proxy. Any designation of a proxy shall be on a form approved by the Trustees and shall be filed with the Trustees at least 48 hours before any meeting at which such proxy will vote. Any Member who has failed to pay any assessments due and payable shall not be entitled to vote at any annual or special meeting provided for herein. The person or persons receiving the highest number of votes cast shall be deemed elected and shall, upon his, her or their acceptance in writing, at once and by force of this Indenture imposed, succeed to, be vested with, and possess and enjoy as a joint tenant but not as a tenant in common, with the remaining Trustees, all of the estate, rights, interests, privileges and powers granted by this Indenture to the Trustees. In the event that nay Trustee elected hereunder shall die or become unable for any reason, to discharge the duties or avail himself or herself of or exercise the rights and powers herein granted or bestowed upon him, her, or them as Trustees under this Indenture, then and thereupon, it shall be the duty of the remaining Trustees to select a successor to fill the unexpired term. Until the remaining Trustees select a successor, a Lot Owner may petition the St. Lois County Council and said Council shall appoint an interim Trustee.
If a Lot is jointly owned, only one person shall be entitled to vote for the owners of that Lot and such person shall be known as the “Voting Member”. If a Lot is jointly owned and if one of the multiple Owners of that portion is present at a meeting of the Association, he shall be entitled to cast the vote allocated to that Lot. If more than one of the multiple Owners are present, the vote allocated to that Lot may be cast only in accordance with the agreement of the majority in interest of the multiple Owners. Once the majority position has been established, the voting Member shall cast the vote. There is majority agreement if any one of the multiple Owners casts the vote allocated to that Lot without protest being made to the person presiding over the meeting by any of the other Owners of the Lot. A corporation, if an owner, shall act through its president or through other officer or director as the board of directors designates in writing. A partnership, if an owner, shall act through a partner as designated by the partnership in writing. A trust, if an Owner shall act through its trustee. If there is more than one such trustee, then the trustees shall designate in writing which trustee shall be entitled to vote. All designations of Voting Members shall be held by the Trustee.
All Trustees, except Interim Trustees and the Trustees herein named and their appointed successors, shall be Lot Owners. If any Owner is a corporation, partnership or trust, then any partner, officer, director, employee or agent of such corporation or partnership or trustee of such trust may be a Trustee.
No business may be transacted at any meeting (special or general) at which there is not a quorum, except as provided below. A quorum shall be deemed present at a meeting of the Association if the Members in attendance at the beginning of the meeting represent at least twenty percent (20%) of the votes eligible to vote at the time of the meeting, either in person or by proxy. If proper notice is given and a meeting called at which the proposed business cannot be conducted because of failure to achieve a quorum, then the trustees may either:
Give another notice of the meeting and indicating the proposed business or purpose and if such meeting is held within thirty (30) days of the date of the first meeting at which there was no quorum, then shall not be a quorum requirement to transact the proposed business at such second meeting: or
Take a vote of the Association on any proposed business by written ballot of the Members in lieu of a meeting.
A quorum is present at a meeting of the Trustees if a majority of the Trustees are in attendance. All actions of the Trustees shall be by majority vote. The Trustees may take action by majority vote on written ballots or minutes or consents in lieu of a meeting.
For the period from the date of execution hereof until such time as there is less than two (2) Grantor appointed Trustees (which shall include the original Trustees named herein and their appointed successors), no annual meeting of the Association shall be held. During such period, the Trustees may appoint an advisory board consisting of Lot Owners. The number of members of such advisory board shall be the number deemed appropriate by the Trustees from time to time. The members of such advisory board shall serve at the will of the Trustees. The advisory board shall be formed for the purpose of reporting to and/or advising the Trustees concerning the status and operation of the Properties. Such advisory board may hold informal meetings of Member of the Association is so desired by the advisory board, but such meetings are not required.

6. RESERVATION OF EXPENDITURES:

The Grantor reserves the right to receive and retain any money consideration which may be refunded or allowed on account of any sums previously expended, deposited, placed in escrow, or subsequently provided by it for utility facilities or services, streets, subdivision fees or for any other purpose of any nature or description with respect to any subdivision or land which is now or may in the future be made subject hereto. Grantor further reserves the right to receive and retain any monies, damage payments or condemnation award for any easement or other interest granted or condemned as to any street or Common Property within the Properties.

7. EASEMENTS AND PROPERTY RIGHTS:

Subject to the right reserved herein to limit or prohibit the use of Common Properties in the case of added properties and subject to the provisions of Section 7(b) hereof, every Member of the Association and every resident of the Properties subject to this Indenture shall have a right and easement of enjoyment in and to the Common Properties, and such easement shall be appurtenant to and shall pass with the title of every Lot.
The rights and easements of enjoyment created hereby shall be subject to the following:
- The right of the Grantor and of the Trustees to borrow money for the purpose of improving the Common Properties and in aid thereof to mortgage or otherwise burden or encumber the Common Properties. In the event of a default upon any such mortgage or other burden or encumbrance, the lender shall the a right, after taking possession of such Common Properties (where such right to possession exists), to charge admission and other fees as a condition to continued enjoyment by the Member and residents and, if necessary, to open the enjoyment of such properties to a wider public until the mortgage or other debt is satisfied, whereupon the possession of such Properties shall be returned to the Association and all rights of the Members hereunder shall be full restored: and
- The right of the Trustees to take such steps as are reasonably necessary to protect the above-described Properties against foreclosure: and
- The right of the Trustees to promulgate rules and regulations governing the use of Common Properties: and
- The right of the Trustees to suspend the enjoyment rights of any Members or resident for any period during which any assessment remains unpaid and for such period as they consider appropriate for any infraction of the published rules and regulations: and
- The right of the trustees to charge reasonable admission and other fees for the use of any recreational facilities situated on the Common Properties and require licenses and license fees where it is deemed necessary by the Trustees: and
- The right of the Trustees to dedicate or transfer all or part of the Common Properties to any public agency or authority for such purposes and subject to such conditions as may be agreed to by the Trustees and public agency or authority: and
- The right of the Grantor or other builder-developers authorized in writing by the Grantor to utilize Common Properties for promotional purposes during periods of development: and
- The right of the Trustees to grant such easements and rights of way to such utility companies or public agencies or public agencies or authorities or other entities as it shall deem necessary or appropriate: and
- The right of Owners to perpetual easements over any part of the Common Properties for such portion of their dwelling unit that my overhang said Common Properties, and for such Portion of their dwelling unit that my overhang said Common Properties, and for pedestrian and vehicular ingress and egress to and from any dwelling over said Common Properties: and
- The right of the Trustees to enter into licensing agreements with commercial enterprises for the operation of recreation facilities and related concessions for the benefit of owners and residents of the Properties.

No resident of the Properties shall be denied the use of the Common Properties including, without limitation, open spaces, recreational facilities and other common grounds, for any reason related to the extension of such privilege to residents outside of the Properties. All rules and regulations promulgated pursuant to this indenture with respect to the residents of the Properties shall be applied equally to all such residents: and rules and regulations promulgated pursuant to this indenture with respect to residents outside the Properties shall be applied equally to all such non-residents.
Every utility easement on each Lot shall constitute an easement for utility purposes to serve any other Lot or Common Property.
In the event that any utilities and connections therefor serving a Lot are located in part on a Lot other than the Lot being served by such utilities and connections, the utility company, the Owner of a Lot being served, and the contractors and employees of such company or owner shall have the right and easement to enter upon the Lot in which the utility line or connections is located for the repair, maintenance and replacement of such line or connection.
There shall be and is hereby impressed on each Lot an easement for reasonable ingress and egress by or on behalf of the Owner of any adjoining Lot for the purpose of repair, maintenance or replacement of improvements on such adjoining Owner’s Lot.
Should any portion of any dwelling or other improvement as originally constructed overhang or encroach on an adjacent Lot, the Owner of any such dwelling or other improvement shall have an easement on such adjacent Lot so that such overhanging or encroaching portion of such dwelling or improvement shall be permitted, and including the right of such Owner to enter upon such adjacent Lot for the purpose of necessary repair and maintenance of such overhanging or encroaching portion of such dwelling or other improvement.
There have been or may be designated on the subdivision plat or plats subject hereto driveway easements for the joint and mutual use and benefit of the Lots on which they are located and the Lots to which they provide access from a street. Those easements are to be held by the respective Owners of each of those Lots, and their respective heirs, executors, administrators, successors and assigns as appurtenant to the Lot owned by each of those Owners. The Owners of each of those Lots shall be jointly responsible for the maintenance and repair of the driveway improvement located on each such easement and each such Lot owner shall pay an equal share of the cost of maintenance. In the event that any such driveway improvement is not kept in good repair, upon thirty (30) days written notices by the Trustees to each Owner, the Trustees may cause such maintenance or repair to be provided and the reasonable cost thereof shall be a charge and lien against each Lot to which such driveway easement is appurtenant, in the amount of equal portion of such cost allocated to such Lot. Said charge shall be enforceable in the same manner as herein provided for annual and special assessments.

8 ASSESSMENTS:

The Grantor, for each Lot within the Properties, hereby covenants and each Owner of any Lot by acceptance of a deed therefor, whether or not is shall be so expressed in any such deed or other conveyance, shall be deemed to covenant and agree to pay to the Association (except for special provisions hereinafter contained with respect to “Exempt or Partially Exempt Property” as defined in subsection 8(1): (1) annual assessments or charges; (2) special assessments; such assessments to be fixed, established and collected from time to time as hereinafter provided.
The annual and special assessments together with such interest thereon and costs of collections thereof as hereinafter provided, shall be a charge against the title of each Lot and shall be a continuing lien upon the property against which such assessment is made. Each such assessment, together with such interest thereon and cost of collection thereof as hereinafter provided, shall also be the personal obligation of the person or persons owning such property at the time when the assessment became due.
The assessments levied under this Section shall be used exclusively for the purpose of promoting the recreation, health, safety and welfare of the residents of the Properties and in particular for the rendering of services in the furtherance of such purposes, including the carrying out of all functions, herein authorized, and for the acquisition, improvement, maintenance and operation of the Common Properties and all facilities thereon, including, but not limited to, the payment of taxes and insurance thereon, debt service and repair, maintenance, replacements and additions thereto and for the cost of labor, equipment, materials, management and supervision thereof and for such other needs as may arise.
In addition to the annual assessment herein authorized, there may be levied in any assessment year a special assessment for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, unexpected repair or replacement of a capital improvement within or upon the Common Properties or any easement, street, drive, walkway or other right-of-way provided for the benefit of the Lots subject hereto, and including the provision of necessary fixtures or personal property related thereto upon the approval of a majority of the Trusties and the assent of a majority of the vote of the Members voting thereon, in person or by proxy, at a meeting duly called for such purpose, written notice of which shall have been sent to all Members at least thirty (30) days in advance and shall set forth the purpose of the meeting. The provisions of this Section 8 with respect to the establishment of due dates, effect of non-payment and remedies for enforcement shall be applicable to any special assessment levied as hereinabove authorized.
In addition, the Trustees may levy a special assessment against any Lot Owner for purposes of making repairs or maintenance to the Owner’s Lot or improvements thereon, which repairs or maintenance the Lot Owner has failed to make or for repairing any damage caused by a Lot Owner or such Owner’s employees, agents, invitees or tenants.
Assessments shall be made in a manner and subject to the following procedure:
- As to annual assessments, on or before thirty (30) days in advance of each assessment year, as established by the Trustees, the Trustees shall prepare a proposed budget for the upcoming assessment year taking into consideration all anticipated items of expenses, including reasonable replacement and other reserves. Based upon the proposed budget, the Trustees shall establish the annual assessment for the upcoming assessment year. The Trustees shall set the due date for the payment of the assessment, and may provide for a periodic payment schedule if deemed desirable by the Trustees. If at any time during an assessment year, the Trustees determine in their reasonable opinion that the annual assessment will not provide sufficient funds during the assessment year to cover the expense of items in the proposed budget and/or the expense of any items not indicated on the proposed budget which may occur and are non-extraordinary and reasonably necessary to the general operation of the Association and/or the Common Properties, then the Trustees may levy an additional general assessment for the remainder of the assessment year in the amount necessary to cover the anticipated revenue deficit for that assessment year. The right and power to levy a supplement annual assessment shall extend to the Trustees for the first assessment year and each assessment year thereafter. Written notice of any levy of a supplemental assessment shall be given to each Owner and payment shall be directed by the Trustees in such notice.
- Special assessments shall be made by the Trustees upon thirty (30) days’ notice, and, at the discretion of the Trustees, may be payable in a lump sum, in periodic installments or due and payable within thirty (30) days from the date of such notice.
- Any assessment, with the exception of an assessment under Section 8 (e) hereof, shall be divided among Lot Owners on the basis of an equal amount per Lot.
- Notices of any assessment shall be given by the Trustees, either by mail, postage prepaid, addressed to the address shown on the real estate assessment records of St. Louis Count or any appropriate municipality (and notice so given shall be considered given when mailed), or by posting a brief notice of the assessment on the property itself.
- The failure or delay of the Trustees to prepare or serve any budget or any annual or special assessment shall not constitute a waiver or release in any manner of any Lot Owner’s obligation to pay such assessment whenever the same shall be made, and in the absence of any annual assessment the Lot Owner shall continue to pay at the then existing rate established for the previous payment.
If any assessment is not paid on the due date, as established by the Trustees, then such assessment shall become delinquent and shall, together with such interest thereon and cost of collection thereof as hereinafter provided, thereupon become a continuing lien on the Lot involved, which shall bind such Lot in the hands of then then owner, his or her heirs, devisees, personal representatives, successors, and assigns. In addition to such lien, the personal obligation of the then Lot Owner to pay such assessment shall remain his personal obligation and shall also pass to his successors in title, whether or not expressly assumed by them.
If any assessment is not paid within thirty (30) days after the delinquency date, such assessment shall bear interest from the date of delinquency at the annual rate equal to two (2%) percent over the prime rate established by Mercantile Trust Company, N.A., St. Louis, Missouri, on the first business day of each calendar quarter, but not less than fifteen (15%) percent per annum and not more than the highest rate allowed by law, and the Trustees may bring legal action against the Lot Owner personally obligate to pay same, and, in addition, may execute and acknowledge an instrument reciting the levy of the assessment with respect to such Lot or and cause same to be recorded in the Office of the Recorder of Deeds of St. Louis County and thereafter institute any appropriate legal action to enforce such lien, including, without limitation, by foreclosure and public sale. Upon payment, the Trustees shall execute and record (at the expense of the Owner of the affected Lot), a release of such lien. All costs including reasonable attorneys’ fees, incurred by the Trustees in enforcing the payment of any assessment shall be paid by the Lot Owner in default and the amount of such costs, including reasonable attorneys’ fees, shall be a lien against the Lot involved until paid.
The lien of any assessment provided for the herein shall be subordinate to the lien of any first mortgage or deed of trust now or hereafter placed upon any Lot, as to assessments which become due and payable prior to the sale or transfer of such Lot pursuant to the foreclosure thereon or in lieu of foreclosure. Such sale or transfer shall not relieve such Lot from liability for any assessments thereafter becoming due, nor from the lien of any subsequent assessment.
The following properties subject to this Indenture shall be exempt from the assessments, charges and liens created herein:
- All Common Properties
- All properties exempted from taxation under the laws of the State of Missouri.
- All Lots owned by the Grantor or other builder-developers before title to the Lot has been transferred to the first purchaser thereof at retail (as distinguished from the sale in bulk or at wholesale to others for development or resale) or before commencement of the first term under a lease or tenancy affecting the Lot. Any Lot located within lands added hereto, the owners or residents of which are not eligible to use portions of the Common Properties, shall not be subject to assessment for such portions of the Common Properties.
In addition to other annual assessments authorized by this Section 8, the Trustees may make a separate annual assessment, in accordance with the procedures set forth in this Section 8, for the operation and maintenance of storm water control easements and facilities. The assessment provided for this by Subsection (m) shall be applicable until the operation and maintenance of such storm water control easements and facilities has been accepted for maintenance by an appropriate public body, agency or utility company.

9. ARCHITECTURAL CONTROL:

From and after such time as a Lot becomes subject to assessment as provided herein, no building, fence, wall or other structure shall be commenced, erected or maintained upon any Lot, nor shall any exterior addition to, removal of all or any part thereof, or exterior change or addition to, removal of all or any part thereof, or exterior change or alteration in any improvement thereon be made until the plans and specifications showing the nature, kind, shape, height, materials, colors, and location of the same shall have been submitted to and approved by the Trustees. It is the intent of this Indenture that the restrictions of this Section shall not apply for Grantor or any subsequent builder-developer until such time as the Lot is subject to assessment as provided herein.

10. TRUSTEES’ DUTIES AND POWERS:

The Trustees shall have the following rights, powers, duties and obligations:

To acquire and hold the Common Properties, to exercise control over the Common Properties, maintain, improve and operate same with landscaping, shrubbery, decorations, buildings, recreational facilities and structures of any kind or description, and any and all other types of facilities in the interest of the health, welfare, safety, recreation, entertainment, education and for the general use of the Owners of the Properties, to grant such easements and rights-of-way over the Common Properties, to such utility companies or public agencies or others as they shall deem necessary or appropriate, to make rules and regulations, not inconsistent with the law and this Indenture, for the use and operation thereof and in every and all respects govern the operation, functioning and usage of said Common Properties.
To maintain, repair and replace any improvements which have been neglected and to charge the Lot Owner or Owners thereof with the reasonable expense incurred, which shall be a lien against the Lot owned by such Lot Owner and improvements thereon.
To exercise such control over the easements, streets, drives, trail systems, walkways and rights-of-way (except for such as have been or may hereafter be dedicated to public bodies or agencies) as is necessary to maintain, repair, supervise and insure the proper use of said easements, streets, drives, trail systems, walkways and rights-of-way by the necessary public utilities and other, including the right (to themselves and to others to whom they may grant permission) to construct, operate, maintain on, under and over said easements, streets, drives, trail systems, walkways and rights-of-ways, street lights, sewers, pipes, poles, wires and other facilities and public utilities for service to the Lots within the lands subject hereto, provided that no above ground structure, other than required street lights, may be erected within a cul-de-sac, divided street entry island, or median strep without the written approval of the St. Louis County Department of Highways and Traffic; and to establish traffic regulations for the use of such streets, drives and walkways to operate and maintain a system of street lights and pay electric utility payments on same as such time as said system is completed and delivered to the Trustees, and to operate and maintains any storm water control easement and facilities, including lakes and other retention areas, serving any portion of the Properties, which have not been accepted for maintenance by any appropriate public body, agency or utility company.
To plant, care for maintain, spray, trim, protect and replace trees, shrubbery and vegetation within any right-of-way, to decorate the entranceway to the subdivision by appropriate landscaping or by a subdivision sign or in such other manner as the Trustees shall deem appropriate.
To dedicate the private streets, drives, walkways, or right-of-way, or any portion of portions thereof, when such dedications would be accepted by an appropriate public agency.
At the discretion of the Trustees, to designate certain parking areas for the sole and exclusive use of Lot Owners, their occupants, guests or invitees.
To clear rubbish and debris and remove grass and weeds from and trim, cut back, remove, replace and maintain trees, shrubbery and flowers upon any neglected property, and to charge the Owners thereof with the reasonable expense so incurred, which shall be a lien against such parcel of neglected property. The Trustees, or their agents or employees, shall not be deemed guilty or liable for any manner of trespass for any such abatement, removal or planting.
At the discretion of the Trustees, to provide security service and facilities and to provide for the collection of trash, rubbish and garbage and otherwise to provide such services as shall be in the interest of the health, safety and welfare of the property owners and residents, and to enter into and assume contracts for such purposes covering such periods of time as they man consider advisable.
In exercising the rights, powers and privileges granted to them, and in discharging the duties imposed upon them by the provisions of this Indenture, from time to time to enter into contracts, employ agents and other employees as they deem necessary or advisable, employ counsel to advise the Trustees or to institute and prosecute such suits as they deem necessary or advisable, and to defend suits brought against them individually or collectively in their capacity as Trustees.
To receive, hold, convey, dispose of and administer in trust for any purpose mentioned in this Indenture any gift, grant, conveyance or donation of money or real or personal property.
With regard to all property, real, personal or mixed, owned or held by them as Trustees, the full and unqualified right, power and authority to:
- Make all contracts and incur all liabilities necessary, related or incidental to exercise of the Trustees’ powers and duties hereunder, including the construction of improvements.
- Purchase insurance against all risks, casualties and liabilities of every nature and description.
- Borrow money, including making a permanent, temporary or construction loan, encumber and hypothecate same, make and execute promissory notes or incur liabilities and obligations secured by deed of trust, mortgage, lien or encumbrance on same.
- Sell, convey, trade, exchange, use handle, manage, control, operate, hold and deal in and with, in all respects, limited only as provided in this Indenture or by law.
In the event is shall become necessary for any public agency to acquire all or any part of the Common Properties for any public purpose, the Trustees are hereby authorized to negotiate with such public agency or conveyance for such acquisition and to execute such instruments as may be necessary for the conveyance to any such public agency. Should acquisitions by eminent domain become necessary, only the Trustees need to be made parties, and subject to the reservation by Grantor, as provided in Section 6 hereof, any monies, damage payments or condemnation award shall be held by the Trustees for the benefit of the Owners of the Lots subject hereto.
The Trustees shall deposit the funds coming into their hands, as Trustees, in a state or national bank protected by the Federal Deposit Insurance Corporation, or in a state or federal saving and loan association protected by the Federal Saving and Loan Insurance Corporation.
All rights, powers, duties, privilege and acts of every nature and description conferred upon the Trustees by the terms of this Indenture may be executed and exercised by a majority of the Trustees, unless otherwise provided herein. The Trustees shall not be personally liable for their acts in the performance of their duties, except for dishonesty or acts criminal in nature.
Notwithstanding any other condition herein, the Trustees shall make suitable provision for compliance with all subdivision and other ordinances rules and regulations of St. Louis County or any municipality of which the Properties may become a part. Specifically, and not by way of limitation, the Trustees shall make provision of the maintenance and operation of all street lights, roadways, storm water facilities and easements not otherwise accepted by a public agency or utility.
At the discretion of the Trustees, to enter into licensing agreements with commercial entities for the management and operation of any portion of the Common Properties, including, without limitation, any recreational facilities and/or any related concessions, for the benefit of the Owners and residents of the Properties.
The Trustee shall have the power to erect ornamental entrance monuments to the Community, such monuments to be located on the Street corners and/or median within the street right-of-way and adjacent easements as may be shown on any recorded subdivision plat of the Properties. The Trustees shall have the duty to maintain and repair those monuments, together with all the related equipment, utility facilities and landscaping located on the aforementioned corners, median and/or easements. If requested to do so in writing by the St. Louis County Department of Highways and Traffic, the Trustees shall within thirty (30) days of receipt of the aforementioned request, remove the entry monuments from the aforementioned street corners and/or median. The Trustees shall hold St. Louis County harmless from all claims, demands, suits of whatever kind arising out of or in connection with the ornamental entrance monuments.

11. USE RESTRICTIONS:

(a) The following restrictions shall apply to all portions of the Properties, and Grantor, for an on its behalf of each and every subsequent Owner of any Lot therein, their grantees, lessees, successors and assigns, covenants that:

No building or structure shall be used for a purpose other than that for which the building or structure was originally designed, without the approval of the Trustees.
No commercial activity or any kind shall be conducted on any Lot, but nothing herein shall prohibit the maintenance of such facilities as are incident to the sale of residences nor the carrying on of such promotional activities by the Grantor, or any other builder developer, nor the conduct of home occupation in strict accordance with the provisions of the applicable zoning ordinances.
No noxious or offensive activity shall be carried on upon any portions of the Properties, nor shall anything be done thereon that may be or become a nuisance or annoyance to the neighborhood.
Each Owner shall maintain and keep his Lot in good order and repair.
No animals, reptiles, birds, horses, rabbits, fowl, poultry, cattle or livestock of any kind shall be brought onto or kept on any portion of the Properties, except that no more than two dogs, cats or other household pets (except house pets with vicious propensities) may be kept or maintained on any Lot. The keeping any pet which by reason of its noisiness or other factor is a nuisance or annoyance to the neighborhood is prohibited.
No signs, advertisements, billboards, or advertising structures of any kind may be erected, maintained or displayed on any Lot, provided, however, that nothing herein shall prohibit signs erected or displaced by Grantor or by builder-developers in connection with development of the Properties and the sale or rental of homes.
No Structure of a temporary character, trailer, basement, tent, shack, garage, barn or other outbuilding shall be used on any Lot at any time as a residence temporarily or permanently. No outbuildings, detached garages, sheds, bards, shacks or structures whether of temporary character or not other than the residences constructed on Lots shall be constructed or maintained on any Lot in any portion of the Properties.
No fencing of any type shall be erected or maintained on any portion of the Properties without the prior approval of the Trustees, which Trustee approval shall only be given as follows: the Trustees shall only approve such fencing for such Lots, or portions thereof, am may be required by appropriate governmental authorities, or as may be required in the opinion of the Trustees because of particular physical characteristics of the subject Lot or its surrounding property which tend to make such proposed fencing necessary or desirable, and/or for safety or health reasons.
Noting contained in this Indenture shall restrict, limit, inhibit or prevent the Grantor, its successors or assigns or any builder-developer from developing the Properties and building residences and selling the same.
No Lot shall have an exterior solar collector system, wind generator system, or any similar type system or appliance.
No Lot shall have an exterior free-standing signal receiving dish, antenna, mast or similar appliance.
No Lot shall be re-subdivided nor shall a fractional part of any Lot be sold without the consent of the Trustees. This provision shall not however, require the consent of the Trustees for sale of an entire Lot as shown on a final recorded subdivision plat.
Personal property, including, without limitation, boats, trailers, trucks, campers and recreational vehicles, shall not be placed or stored permanently or temporarily in the open or in an unenclosed carport or on any Lot, nor shall they or any motor vehicle of any type or description be parked for any time on the unpaved portion of any Lot or any street overnight.
No trash, garbage, rubbish, refuse, debris, trash cans or trash receptacles of any type shall be stored in the open on any Lot, but shall be kept secured within the improvements located on each Lot; provided that after sunrise on any day designated for trash pick-up, trash, garbage, rubbish, refuse and debris secured within appropriate trash cans or receptacles within appropriate trash cans or receptacles may be placed at the street curbing for pick-up; provided further that trash cans or receptacles shall be removed and secured within the improvements for each Lot prior to sundown on the same day.

12 GENERAL PROVISIONS:

Nothing herein shall limit or restrict the Grantor or any other builder-developer from developing the Properties in phases.
Any subsequent builder or developer shall be responsible in the same manner as Grantor with respect to the portion of the Properties developed by said builder-developer for construction of all major improvements, and the establishment and conveyance of Common Properties.
The Trustees, or the Owner of any Lot subject to this Indenture, shall have the right to enforce, by any proceeding at law or in equity, all the covenants, conditions, restrictions and provisions hereof, either to restrain or enjoin a violation of threatened violation or to recover damages. Failure or forbearance by the Trustees or any Owner to enforce any covenant or restriction to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. In any legal action filed by the Trustees against a Lot Owner or if the Trustees retain legal counsel without filing a legal action in order to enforce any covenant or restriction wherein contained or adopted pursuant to Trustee rules or regulations or any action to recover damages on account of breach of any such covenant, restriction, rule or regulation, the Owner of such said Lot shall be personally liable for and pay the Trustees’ reasonable attorneys’ fees and costs incurred with or without legal action. If the attorneys’ fees and costs are not paid by the Owner of the Lot within thirty (30) days after the Trustees have given written notice thereof to the Owner of the Lot by certified mail, return receipt requested, then the fees and costs shall thereafter bear interest at the rate provided in the Section 8(h) hereof and the Trustees may execute and acknowledge an instrument reciting the debt and causing same to be recorded in the Office of the Recorder of Deeds of St. Louis County, Missouri; thereupon the debt shall become a continuing lien of the property of the Owner of the Lot which shall bind the Owner of the Lot, his heirs, successors and assigns. The lien shall be enforceable and governed by Section 8 of this Indenture.
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This Indenture and the provisions herein may be amended, modified or changed from time to time by the Grantor so long as the Grantor owns a Lot by recording such amendment in the Office of the Recorder of Deeds of St. Louis County, Missouri, provided such amendment, modification, or changes are approved by the St. Louis County Director of Planning. Thereafter, this Indenture may be amended, modified or changed by the written consent of two thirds (2/3) of the votes of all the Lot Owners with any such amendment, modification or change being recorded in the Office of the Recorder of Deeds of St. Louis County, Missouri. No such amendment, modification or change shall reduce or modify the obligation or right granted to or imposed upon the Trustees with respect to maintenance of the Common Properties and the power to levy assessments thereof, or to eliminate the requirement that there be Trustees with their responsibilities and duties in a manner approved by the St. Louis County Director of Planning.
In connection with the sale of all or part of the Properties subject to this Indenture, Grantor shall have the right to assign to such Purchaser the right herein reserved or granted to Grantor.
Any notice required to be sent to any Member or Owner under the provisions of this Indenture shall be deemed to have been properly sent when mailed, postage prepaid, to the address shown on the real estate tax assessment records of St. Louis County or any appropriate municipality for each Lot Owner.
Invalidation of any one of the covenants or restrictions by judgement, decree or order shall in no way affect any other provision hereof, each of which shall remain in full force and effect.
In the event that Grantor exercises its option to appoint a second trustee nominated by the Association as set out in paragraph 5(b)(iii) above thereby giving the Association control of the Trustees, the Grantor shall retain the sole and exclusive right to exercise all powers heretofore granted to it under the terms of this Indenture pertaining to or in any way related to the continuation of development of the Properties until such development is completed. The Trustees shall not interfere with the orderly development of the Properties or the rights of Grantor in such development. It is the intent of this provision that once control of the Trustees is vested in the Association that such Trustees shall exercise (independent of Grantor control) all governance powers and duties as provided in this Indentures including but not limited to the budget, assessments and other matters which will come under their exclusive control upon completion of the Community. The control of the completion of the development and all rights and powers necessary and appurtenant thereto shall remain exclusively and solely in the Grantor, provided however, the Trustees shall execute any and all documents necessary for the proper exercise of the powers and rights set forth and reserved herein to Grantor. For the period after Grantor no longer exercises control of the Trustees due to accelerated appointment pursuant to Section 5(b)(iii) and prior to the date Grantor has sold and conveyed 95% of the Lots which may be subjected to this Indenture (or permitted by the Approved Density) to persons other than for development, the Common Properties shall be operated at time (both as to hours and days) and in the manner (specifically, without limitations, as to quality of maintenance) which is substantially equivalent to the operation which was provided by the Grantor controlled Trustees, unless any such deviation is specifically approved in writing by Grantor. The provisions of this paragraph may not be modified or amended without the written consent of Grantor so long as Grantor owns any Lot in the Properties.
Grantor shall have the right, without consent of the Trustees or the Association, but with the approval of the St. Louis County Director of Planning, to amend this Indenture to delete and remove any portion of the Properties which may be subject to this Indenture, which have not been platted by a record subdivision plat as part of the Community recorded with the St. Louis County land records.
The construction design of the streets for the Community has been approved by St. Louis County. Until such time as the streets are accepted by the County for maintenance, the Association will be responsible for all repairs and maintenance.

Reference for original document: Book 8593 page 927-928

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EXHIBIT A

Legal Description of Properties

A tract of land in Section 31, Township 45 North, Range 4 East, St Louis County Missouri and being more particularly described as follows:

Beginning at a point in the East and West centerline of Section 31, said point being North 89 degrees 37 minutes East, a distance of 1,335.60 feet from the center of Section 31; thence North 0 degrees 07 minutes East, a distance 544.00 feet to the centerline of Strecker Road: 40 feet wide, said point being the point of the beginning of the description herein; thence continuing from said point of beginning along the centerline of said Strecker Road, the following courses and distances: North 50 degrees 49 minutes West, 73.43 feet; North 34 degrees 03 minutes West, 450.00 feet; North 38 degrees 44 minutes West, 188.84 feet; North 61 degrees 10 minutes West, 179.33 feet; North 51 degrees 32 minutes West 83.56 feet to a point; thence leaving the centerline of Strecker Road North 35 degrees 00 minutes East, a distance of 403.91 feet to a point; thence North 0 degrees 07 minutes East, a distance of 344.00 feet to a point; thence South 89 degrees 53 minute East a distance of 420.00 feet to a point; thence South 0 degrees 07 minutes West, a distance of 1,379.00 feet to a point of beginning.

Reference for original document: Book 8593 page 931