DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS OF A PART OF CINNAMON CREEK, A SUBDIVISION IN DOUGLAS COUNTY, NEBRASKA
THIS DECLARATION, made on the date hereinafter set forth, is made by CINNAMON CREEK LAND CORP., a Nebraska corporation, hereinafter referred to as the “Declarant”.
PRELIMINARY STATEMENT
The Declarant is the owner of certain real property located within Douglas County, Nebraska and described as follows:
Lots 2 through 209, inclusive, in Cinnamon Creek, a Subdivision as surveyed, platted and recorded in Douglas County, Nebraska.
Such lots are herein referred to collectively as the “Lots” and individually as each “Lot”.
The Declarant desires to provide for the preservation of the values and amenities of Cinnamon Creek, for the maintenance of the character and residential integrity of Cinnamon Creek, and for the acquisition, construction and maintenance of Common Facilities for the use and enjoyment of the residents of Cinnamon Creek.
NOW, THEREFORE, the Declarant hereby declares that each and all of the Lots shall be held, sold and conveyed subject to the following restrictions, covenants, conditions and easements, all of which are for the purpose of enhancing and protecting the value, desirability and attractiveness of the Lots, and the enjoyment of the residents of the Lots. These restrictions, covenants, conditions and easements shall run with such Lots and shall be binding upon all parties having or acquiring any right, title or interest in each Lot, or any part thereof, as is more fully described herein. The Lots, and each Lot is and shall be subject to all and each of the following conditions and other terms:
ARTICLE I
RESTRICTIONS AND CONVENANTS
1. Single Family Residences. Each Lots shall be used exclusively for single-family residential purposes, except for such Lots or parts thereof as may hereafter be conveyed or dedicated by Declarant, or its successors or assigns, for use in connection with a Common Facility, or as a church, school, park, or for other non-profit use.
2. Lots Improvements. No residence, building, fence (other than fences constructed by the Declarant), wall, pathway, driveway, patio, patio cover enclosure, deck, rock garden, swimming pool, dog house, pool house, tennis court, flag pole, satellite receiving station or “discs”, solar heating or cooling device, or external improvement, above or below the ground (Herein all referred to as any “Improvement”) shall be constructed, erected, placed or permitted to remain on any Lot, nor shall any grading, excavation or tree removal for any Improvement be commenced, except for Improvements which have been approved by Declarant as follows:
A. Delivered Improvement Plans. An owner desired to erect an Improvement shall deliver two sets of construction plans, landscaping plans and plot plans to Declarant (herein collectively referred to as the “plans”). Such plans shall include a description type, quality, color and use of materials proposed for the exterior of such Improvement. Concurrent with submission of the plans, Owner shall notify the Declarant of the Owner’s mailing address.
B. Declarant Plans Review. Declarant shall review such plans in relation to the type and exterior of improvements constructed, or approved for construction, on neighboring Lots and in the surrounding area, and any general scheme or plans formulated by Declarant. In this regard, Declarant intends that the Lots shall form a residential community with homes constructed of high quality materials. The decision to approved or refuse approval of a proposed Improvement shall be exercised by Declarant to promote development of the Lots and to protect the values, character and residential quality of all Lots. If Declarant determines that the proposed improvement will not protect and enhanced the integrity and character of all the Lots and neighboring Lots as a quality residential community, Declarant may refuse approved of the proposed Improvement.
C. Plan Approval. Written notice of any approval of a proposed Improvement shall be mailed to the owner at the address specified by the owner upon submission of the plans. Such notice shall be mailed, if at all, within thirty (30) days after the date of submission of the plans. If notice of approval is not mailed within such period, the proposed Improvement shall be deemed disapproved by Declarant.
D. No Declarant Improvement Liability. No Lot owner, or combination of Lot owners, or other person or persons shall have any right to any action by Declarant, or to control, direct or influence the acts of the Declarant with respect to any proposed Improvement. No responsibility, liability or obligation shall be assumed by or imposed upon Declarant by virtue of this authority granted to Declarant in the Section, or as a result of any act or failure to act by Declarant with respect to any proposed Improvement.
3. Building Height and Front Yard Improvement Lines. No single-family residence shall be created, altered, placed or permitted to remain on any Lot other than one detached single-family dwelling which does not exceed two and one-half stories in height. No structure, building or porch shall be constructed, erected, installed or situated with thirty (30) feet of the front yard line, except as set forth herein, all Improvements on the Lots shall comply with all other set back requirements of the Zoning Code of the Municipal Code of the City of Omaha, Nebraska.
4. Exposed Walls and Roof Materials. The exposed front foundation walls and any foundation walls facing any street of all main residential structures must be constructed of or faced with clay-fired brick or stone or other material approved by Declarant. All exposed side and rear concrete or concrete block foundation walls not facing a street must be covered with clay-fired brick, stone, siding or shall be painted. All driveways must be constructed of concrete, brick, paving stone, or laid stone. All foundations shall be constructed of concrete, concrete blocks, brick or stone. Fireplace chimneys shall be covered with wood or other material approved in writing by Declarant. Unless other materials are specifically approved by Declarant, the roof of all improvements shall be covered with asphalt shingles or wood cedar shakes or wood shingles.
5. Yards Signs and Safe Lot Use. No streamers, posters, banners, balloons, exterior illumination or other rallying devices will be allowed on any Lots in the promotion or sale of any Lot, residential structure or property unless approved in writing by the Declarant. No advertising signs, billboards, unsightly objects or nuisance shall be erected, placed or permitted to remain on any Lot except one sign per Lot consisting of not more than six (6) square foot advertising a Lot as “For Sale”. No business activities of any kind whatsoever shall be conducted on any Lot including home occupations as defined in the Zoning Code of the Municipal Code of the City of Omaha, Nebraska; nor shall the premises by used in any way for any purposed which may endanger the health or unreasonably disturb the owner or owners of any Lot or any resident thereof. Provided, however, the foregoing paragraph shall not apply to the business activities, signs and billboards or the construction and maintenance of buildings, if any, by Declarant, their agents or assigns, during the construction and sale of the Lots.
6. Lighting and Annoyances. No obnoxious or offensive activity shall be carried on upon any Lot, nor shall anything be done thereon which may be, or may become, an annoyance or nuisance to the neighborhood, including, but not limited to, odors, dust, glare, sound, lighting, smoke, vibration and radiation. Exterior lighting installed on any Lot shall be indirect or of such a controlled focus and intensity as to not disturb the residents of adjacent Lots.
7. Antennas and Small Exterior Buildings. No exterior television or radio antenna of any sort shall be permitted on any Lot. No tree houses, tool sheds, doll houses, windmills, or similar structures shall be permitted on any Lot.
8. Vehicles and Unused Buildings on Lots. No repair of any boat, automobiles, motorcycles, trucks, campers (trailers, van-type,auto-drawn or mounted), snowmobiles, recreational vehicles (RV), other self-propelled vehicles or similar vehicles requiring a continuous tim eperiod in excess of fourty-eight (48) hours shall be permitted on any Lot at any time; nor shall vehicles offensive to the neighborhood be visibly stored, parked or abandoned on any Lot. No unused building material, junk or rubbish shall be keft exposed on the Lot except during actual building operations, and then only in as neat and inconspicuous a manner as possible.
9. Maintaining or Storing Vehicles. No boat, camper, trailer, auto-drawn or mounted trailer of any kind, mobile home, truck, aircraft, camper truck or similar shattel shall be maintained or stored on any part of a Lot (other than in an enclosed structure) for more than twenty (20) days within a calendar year. No motor vehicle may be parked or stored outside on any Lot, except vehicles driven on a regular basis by the occupants of the dwelling located on such Lot. No grading or excavating equipment, tractors or semitractors/trailers shall be stored, parked, kept ot maintained in any yards, driveways or streets. However, this Section 9 shall not apply to trucks, tractors or commercial vehicles which are necessary for the construction of residential dwellings during the period of construction. All residential Lots shall provide at least the minimum number of off street parking areas or spaces for private passenger vehicles required by the applicable zoning ordinances of the City of Omaha, Nebraska.
10. Materials on Lots. No incinerator or trash burner shall be permitted on any Lot. No garbage or trash can container or fuel tank shall be permitted unless completely screened from view, except for pickup purposes. No garden lawn or maintenance equipment of any kind whatsoever shall be stored or permitted to remain outside of any dwelling or suitable storage facility, except when in actual use. No garbage, refuge, rubbage or cutting shall be deposited on any street, road or Lot. No clothes lines shall be permitted outside of any dwelling at any time. Produce or vegetable gardens may only be maintained in rear yards.
11. Fences. No fence shall be permitted to extend beyond the front line of a main residential structure. No hedges or mass planted scrubs shall be permitted more than ten (10) feet in front of the front building line. Unless other materials are specifically approved in writing by the Declarant, fences shall only be composed of wood or wrought iron. No fence shall be of the chain link or wire types. No fences or walls shall exceed a height of six (6) feet. Fences constructed within the easement area granted to Northern natural Gas (“NNG Easement”) as set forth in the final plat of Cinnamon Creek on Lots 10 through 37, inclusive and Lot 209 shall include gates on both the northern and southern boundaries of said Lots to provide uninterrupted access to the NNG Easement. All gates so constructed shall remain unlocked at all times.
12. Swimming Pools. No swimming pool may extend more than one foot above ground level.
13. Construction or Improvement Duration. Construction of any Improvements shall be completed with one (1) year from the dates of commencement of excavation or construction of the Improvement. No excavation dirt shall be spread across any Lot in such fashion as to materially change the grade or contour of any Lot.
14. Sidewalks. A public sidewalk shall be constructed of concrete four (4) feet wide by four (4) inches thick in front of each Lot and upon each street side of each corner Lot. The sidewalk shall be placed five (5) feet back of the street curb line and shall be constructed by the owner of the Lot prior to the time of completion of the main structure and before occupancy thereof; provide, however, this provision shall vary to comply with any requirements of the City of Omaha.
15. Driveway Composition. Driveway approaches between sidewalk and curb on each Lot shall be constructed of concrete. Should repair or replacement of such approach be necessary, the repair or replacement shall also be of concrete. No asphalt overlay of driveway approaches will be permitted.
16. Animals. No stable or other shelter for any animal, livestock, fowl or poultry shall be erected, altered, placed or permitted to remain on any Lot, except for one dog house constructed for one (1) dog; provided always that the construction plans, specifications and the location of the proposed structure have been first approved by Declarant, or its assigns, if required by this Declaration. Dog houses shall only be allowed at the rear of the residence, attached to or immediately adjacent to the residence. Dog runs or kennels shall be permitted only with the approval of the Declarant, or its assigns, provided always that any permitted dog run or kennel shall be located immediately adjacent to the rear of the residence. No animals, livestock, agricultural-type animals, fowl, or poultry of any kind, including pot-bellied pigs, shall be raised, bred or kept on any Lot, except that dogs, cats, or other household pets maintained within the residential structure may be kept, provided that they are not kept, bred or maintained for any commercial purpose and, provided that they are kept confined to the Lot of the Owner and are not permitted to run loose outside the Lot of the Owner.
17. Air Conditioning Units, Lawn Maintenance. Any exterior air conditioning condenser unit shall be placed in the rear yard or any side yards so as not to be visible from public view. No grass, weeds, or other vegetation will be grown or otherwise permitted to commerce or continue, and no dangerous, diseased or otherwise objectionable shrubs or trees will be maintained on any Lot so as to constitute an actual or potential nuisance, create a hazard or undesirable proliferation, or detract from a neat and trim appearance. Vacant Lots shall not be used for dumping of earth or any waste materials, and no vegetation on vacant Lots shall be allowed to reach a height in excess of twelve (12) inches.
18. Lot Construction. No residence shall be constructed on a Lot unless the entire Lot, as originally platted, is owned by one owner of such Lot, except if parts or two or more platted Lots have been combined into one Lot which is at least as wide as the narrowest Lot on the original plat, and is as large in area as the largest Lot in the original plat.
19. Temporary Structures. No structure of temporary character, carport, detached garage, trailer, basement, tent, outbuilding or shack shall be erected upon or used on any Lot at any time, either temporarily or permanently. No structure or dwelling shall be moved from outside Cinnamon Creek to any Lot without the written approval of Declarant.
20. Underground Utility Lines. All utility service lines from each Lot line to a dwelling or other Improvement shall be underground.
21. Erosion Fences. Declarant does hereby reserve unto itself the right to require the installation of siltation fences or erosion control devices and measures in such location, configurations, and designs as it may determine appropriate in its sole and absolute discretion.
ARTICLE II.
BOUNDARY FENCE
1. Boundary Fence Definition. Declarant must approve in writing any plans to construct boundary fences along “Q” Street (the “Boundary Fence”). The Boundary Fence, if constructed, will be situation on the northerly most boundary line of Lots 2 through 10, inclusive; (ii) extend vertically approximately six (6) feet; (iii) be uniform in construction; and (iv) be of the same material as shall be determined by Declarant. Each of such lots are collectively referred to as the “Boundary Lots”.
2. Declarant Rights to Boundary Lots. Maintenance of the Boundary Fence. Declarant hereby declares that the Boundary Lots are subject to a permanent and exclusive right and easement in favor of Declarant and the Cinnamon Creek Homeowners Association to maintain, repair and replace the Boundary Fence. Without limitation of the rights and easements granted by this Declaration, the Declarant or Association may come upon say of the Boundary Lots for the purpose of constructing, installing, repairing, maintaining, removing, and replacing the Boundary Fence. Notwithstanding the foregoing, the Owner of a Boundary Lots agrees to keep the Boundary Fence adjoining the respective Owner’s Lot in good order and repair and is primarily responsible for the repair or maintenance of the Boundary Fence adjoining the Owner’s Lot.
ARTICLE III.
HOMEOWNERS’ ASSOCIATION
1. The Association. Declarant has caused the incorporation of CINNAMON CREEK HOMEOWNERS’ ASSOCIATION, a Nebraska not for profit corporation (hereinafter referred to as the “Association”). The Association has as its purpose the promotion of the health, safety, recreation, welfare and enjoyment of the residents of the Lots, including:
A. Common Area Maintenance and Construction. The acquisition, construction, landscaping, improvement, equipment, maintenance, operation, repair, upkeep and replacement of Common Facilities for the general use, benefit and enjoyment of the Members. Common Facilities may include recreational facilities such as swimming pools, tennis courts, health facilities, health facilities, playgrounds and parks; dedicated and nondedicated roads, paths, ways and green areas; signs and entrances for Cinnamon Creek; and the median and the landscaping within the median located in 176th Avenue and “Y” Street. Common Facilities may be situated on property owned or leased by the Association, on public property, on private property subject to an easement in favor of the Association, or on property dedicated to a Sanitary Improvement District.
B. Enforcement of Rules. The promulgation, enactment, amendment and enforcement of rules and regulations related to the use and enjoyment of any Common Facilities, provided always that such rules are uniformly applicable to all Members. The rules and regulations may permit or restrict use of the Common Facilities by Members, their families, their guests, and/or by other persons, who may be required to pay a fee or other charge in connection with the use of enjoyment of the Common Facility.
C. Protection of Cinnamon Creek Residents’ Interests. The exercise, promotion, enhancement and protection of the privileges and interests of the residents of Cinnamon Creek; and the protection and maintenance of the residential character of Cinnamon Creek.
2. Membership and Voting. Cinnamon Creek is divided into (208) separate residential lots (referred to as the “Lots”). The “Owner” of each Lots shall be a Member of this Association. For purposes of the Declaration, the term “Owner” of a Lot means and refers to the record owner, whether one or more persons or entities, of fee simple title to a Lot, but excluding however those parties having any interest in any of such Lot merely as security for the performance of an obligation (such as a contract seller, the trustee or beneficiary of a deed of trust, or a mortgagee). The purchaser of a Lot under a land contract or similar instrument shall be considered to be the “Owner” of the Lot for purposes of this Declaration. Membership shall be appurtenant to ownership of each Lot, and may not be separated from ownership of each Lot.
The owner of each Lot, whether one or more persons and entities, shall be entitled to one (1) vote on each matter properly coming before the Members of the Association.
3. Purposes and Responsibilities. The Association shall have the powers conferred upon not for profit corporations by the Nebraska Nonprofit Corporation Act, and all powers and duties necessary and appropriate to accomplish the Purposes and administer the affairs of the Association. The powers and duties to be exercised by the Board of Directors, and upon authorization of the Board of Directors by the Officers, shall include but shall not be limited to the following:
A. Maintenance of Common Facilities and Rule Enforcement. The acquisition, development, maintenance, repair, replacement, operation and administration of Common Facilities, and the enforcement of the rules and regulations relating to the Common Facilities.
B. Maintenance of Public Property. The landscaping, mowing, watering, repair and replacement of parks and other public property and improvements on parks or public property within or near Cinnamon Creek.
C. Collection of Dues. The fixing, levying, collecting, abatement, and enforcement of all charges, dues, or assessments made pursuant to the terms of this Declaration.
D. Fund Expenditures. The expenditure, commitment and payment of Association funds to accomplish the purposes of the Association including, but not limited to, payment for purchase of insurance covering any Common Facilities against property damage and casualty, and purchase of liability insurance coverage for the Association, the Board of Directors of the Association and the Members.
E. Exercising and Amendments of Declaration. The exercise of all the powers and privileges, and the performance of all of the duties and obligations of the Association as set forth in this Declaration, as the same may be amended from time to time.
F. Property Management. The acquisition by purchase or otherwise, holding, or disposition of any right, title or interest in real or personal property, wherever located, in connection with the affairs of the Association.
G. Fund Management, The deposit, investment and reinvestment of Association funds in bank accounts, securities, money market funds or accounts, mutual funds, pooled funds, certificates of deposit or the like.
H. Employment of Professional Advisors. The employment of professionals and consultants to advise and assist Officers and Board of Directors of the Association in the performance of their duties and responsibilities for the Association.
I. Administration. General administration and management of the Association, and execution of such documents and doing and performance of such acts as may be necessary or appropriate to accomplish such administration or management.
J. Execution of Instruments. The doing and performing of such acts, and the execution of such instruments and documents, as may be necessary or appropriate to accomplish the purposes of the Association.
4. Mandatory Duties of Association (Area Maintenance). The Association shall maintain and repair the fence, signs and landscaping which have been installed in easement areas of Cinnamon Creek subdivision and center islands dividing dedicated roads, in generally good and neat condition.
5. Imposition of Dues and Assessments. The Association may fix, levy and charge the Owner of each Lot with dues and assessments (herein referred to respectively as “dues and assessments”) under the following provisions of this Declaration. Except as otherwise specifically provided, the dues and assessments shall be fixed by the Board of Directors of the Association and shall be payable at the times and in the manner prescribed by the Board.
6. Abatement of Dues and Assessments. Notwithstanding any other provisions of this Declaration, the Board of Directors may abate all or part of the dues or assessments due in respect of any Lot, and shall abate all dues and assessments due in respect of any Lot during the period such Lot is owned by the Declarant.
7. Liens and Personal Obligations for Dues and Assessments. The assessments and dues, together with interest thereon, costs and reasonable attorneys’ fees, shall be the personal obligation of the Owner of each Lot at the time when the dues or assessments first become due and payable. The dues and assessments, together with interest thereon, costs and reasonable attorneys’ fees, shall also be a charge and continuing lien upon the Lot in respect of which the dues and assessments are charged. The personal obligation for delinquent assessments shall not pass to the successor in title to the Owner at the time the dues and assessments become delinquent unless such dues and assessments are expressly assumed by the successors, but all successors shall take title subject to the lien for such dues and assessments, and shall be bound to inquire of the Association as to the amount of any unpaid assessments or dues.
8. Purpose of Dues. The dues collected by the Association may be committed and expended to accomplish the purpose of the Association described in Section 1 of this Article, and to perform the Powers and Responsibilities of the Association described in Sections 3 and 4 of this Article.
9. Maximum Annual Dues. Unless excess dues have been authorized by the Members in accordance with Section 11, below, the aggregate dues which may become due and payable in any year shall not exceed the greater of:
A. One Hundred Twenty-Five and no/100 Dollars ($125.00) per Lot.
B. In each calendar year beginning on January 1, 1996, one hundred twenty-five percent (125%) of the aggregate dues charged in the previous calendar year.
10. Assessment for Extraordinary Costs. In addition to the dues, the Board of Directors may levy an assessment or assessments for the purpose of defraying, in whole or in part, the costs of any acquisition, construction, reconstruction, repair, painting, maintenance, improvement, or replacement of any Common Facility, including fixtures and personal property related thereto, and related facilities. The aggregate assessments in each calendar year shall be limited in amount to Two Hundred and no/100 Dollars ($200.00) per Lot.
11. Excess Dues and Assessments. With the approval of seventy-five percent of the members of the Association, the Board of Directors may establish dues and/or assessments in excess of the maximums established in this Declaration.
12. Uniform Rate of Assessment. Assessments and dues shall be fixed at a uniform rate as to all Lots, but dues may be abated as to individual Lots, as provided in Section 5, above.
13. Certificate as to Dues and Assessments. The Association shall, upon written request and for a reasonable charge, furnish a certificate signed by an officer of the Association setting forth whether the dues and assessments on a specified Lot have been paid to the date of request, the amount of any delinquent sums, and the due date and amount of the next succeeding dues, assessment or installation thereof. The dues and assessments shall be and become a lien as of the date such amounts first become due and payable.
14. Effect of Nonpayment of Assessments-Remedies of the Association. Any installment of dues or assessment which is not paid when due shall be delinquent. Delinquent dues or assessment shall bear interest from the due date at the rate of sixteen (16%) per annum, compounded annually. The Association may bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien against the Lot or Lots, and pursue any other legal or equitable remedy. The Association shall be entitled to recover as a part of the action and shall be indemnified against the Interest, costs and reasonable attorneys’ fees incurred by the Association with respect to such action. No Owner may waive or otherwise escape liability for the charge and lien provided for herein by nonuse of the Common Area or abandonment of his Lot. The mortgagee of any Lot shall have the right the cure any delinquency of an Owner by payment of all sums due, together with interest, costs and fees. The Association shall assign to such mortgagee all of its rights with respect to such lien and right of foreclosure and such mortgagee may thereupon be subrogated to any rights of the Association.
15. Subordination of the Lien to Mortgagee. The lien of dues and assessments provided for herein shall be subordinate to the lien of any mortgagee, contract or deed of trust given as collateral for a home improvement or purchase money loan. Sale or transfer of any Lot shall not affect or terminate the dues and assessment lien.
16. Additional Lots. Declarant reserves the right, without consent or approval of any Owner or Member, to expand the Association to include additional residential lots in any subdivision which is contiguous to any of the Lots. Such expansion(s) may be affected from time to time by the Declarant or Declarant’s assignee by recordation with the Register of Deeds of Douglas County, Nebraska, of a Declaration of Covenants, Conditions, Restrictions and Easements, executed and acknowledged by Declarant or Declarant’s assignee, setting forth the identity of the additional residential lots (hereinafter the “Subsequent Phase Declaration”).
Upon the recording of any Subsequent Phase Declaration which expands the residential lots included in the Association, the additional lots identified in the Subsequent Phase Declaration shall be considered to be and shall be included in the “Lots” for purposes of this Article II, and the Owners of the additional residential lots shall be Members of the Association with all rights, privileges and obligations accorded or accruing to members of the Association.
ARTICLE IV
EASEMENTS
1. Utility Easements. A perpetual license and easement is hereby reserved in favor of and granted to Omaha Public Power District, Northwestern Bell Telephone Company, and any company which has been granted a franchise to provide a cable television system within the Lots, Metropolitan Utilities Company, and Sanitary and Improvement District No. 364 of Douglas County, Nebraska, their successors and assigns, to erect and operate, maintain, repair and renew buried or underground sewers, water and gas mains and cables, lines or conduits and other electric and telephone utility facilities for the carrying and transmission of electric current for light, heat and power and for all telephone and telegraph and message service and for transmission of signals and sounds of all kinds including signals provided by a cable television system and the reception on, over, through, under and across a five (5) foot wide strip of land abutting the front and the side boundary lines of the Lots; an eight (8) foot wide strip of land abutting the rear boundary lines of all interior Lots and all exterior lots that are adjacent to presently platted and recorded Lots; and a sixteen (16) foot wide strip of land abutting the rear boundary lines of all exterior Lots that are not adjacent to presently platted and recorded Lots. The term exterior Lots is herein defined as those Lots forming the outer perimeter of the Lots. The sixteen (16) foot wide easement will be reduced to an eight (8) foot wide strip when such adjacent land is surveyed, platted and recorded.
2. Utility Construction and Easement Land Use. A perpetual easement is further reserved for the Metropolitan Utilities District of Omaha, their successors and assigns to erect, install, operate, maintain, repair and renew pipelines, hydrants and other related facilities, and to extend thereon pipes, hydrants and other related facilities and to extend therein pipes for the transmission of gas and water on, through, under and across a five (5) foot wide strip of land abutting all cul-de-sac streets; this license being granted for the use and benefit of all present and future owners of these Lots; provided, however, that such licenses and easements are granted upon specific conditions that if any of such utility companies fail to construct such facilities along any of such Lot lines within thirty-six (36) months of date hereof, or if any such facilities are constructed but are thereafter removed without replacement with sixty (60) days after their removal, then such easement shall automatically terminate and become void to such unused or abandoned easementways. No permanent buildings, trees, retaining walls, or loose rock walls shall be placed in the easements but may be used for gardens, shrubs, landscaping and other purposes that do not then or later interfere with the aforementioned uses or rights granted herein.
3. Fence Easement. A perpetual easement is further reserved in favor of the Declarant and the Association, its successors and assigns to create, install, repair, reconstruct, paint, maintain, and renew a fence, standards and related accessories located on, over and upon the rear most ten (10) foot wide strip of land abutting the rear boundary lines of Lot 2 through 10, inclusive. Easements relating to the monument and landscape areas located within Lot 2 and Lots 38, 53, 54, 71, 72, 94, 95, 121, 144 through 151 and 193, Cinnamon Creek, are provided for in the final plat of Cinnamon Creek.
4. Telephone Installation Charge for Empty Lots. In the event that ninety percent (90%) of all Lots within the subdivision are not improved within five (5) years after the date on which Northwestern Bell Telephone Company files notice that it has completed installation of telephone lines to the Lots in the subdivision (herein the “Subdivision Improvement Date”), then Northwestern Bell Company may impose a connection charge on each unimproved Lot in the amount of Four Hundred Fifty and no/100 Dollars ($450.00). A Lot shall be considered as unimproved if construction of a permanent structure has not commenced on a Lot. Construction shall be considered as having commenced if a footing inspection has been requested on the Lot in question by officials of the City or other appropriate government authority.
Should such charge be implemented by Northwestern Bell Telephone Company and remain unpaid, then such charge may draw interest at the rate of twelve percent (12%) per annum commencing after the expiration of sixty (60) days from the time all of the following events shall have occurred: (1) the Subdivision Improvement Date, and (2) Northwestern Bell Telephone Company sends each owner of record a written statement or billing for Four Hundred Fifty and no/100 Dollars ($450.00) for each unimproved Lot.
5. Other Easements. Other easements are provided for in the final plat of Cinnamon Creek which is filed in the Register of Deeds of Douglas County, Nebraska (Book 1987, Page 355)
ARTICLE V.
GENERAL PROVISIONS
1. Covenant Enforcement. Except for the authority and powers specifically granted to the Declarant, the Declarant or any owner of a Lot named herein shall have the right to enforce by a proceeding at law or in equity, all reservations, restrictions, conditions and covenants now or hereinafter imposed by the provisions of the Declaration either to prevent or restrain any violation or to recover damages or other dues of such violation. Failure by the Declarant or by any owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.
2. Covenant Amendments. The covenants and restrictions of the Declaration shall run with and bind the land in perpetuity. This Declaration may be amended by Cinnamon Creek Land Corp., a Nebraska corporation, or any person, firm, corporation, partnership, or entity designated in writing by Horgan Development Company, a Nebraska corporation, in any manner which it may determine in its full and absolute direction for a period of five (5) years from the date hereof. Thereafter this Declaration may be amended by an instrument signed by the owners of not less than seventy-five (75%) of the Lots covered by this Declaration.
3. Declarant Appointment. Cinnamon Creek Land Corp., a Nebraska corporation, or its successor or assign, may terminate its status as Declarant under this Declaration, at any time, by filing a Notice of Termination of Status as Declarant. Upon such filing, Association may appoint itself or another entity, association or individual to serve as Declarant, and such appointee shall thereafter serve as Declarant with the same authority and powers as the original Declarant.
4. Covenant Invalidation. Invalidation of any covenant by judgment or court order shall in no way affect any of the other provisions hereof, which shall remain in full force and effect.
IN WITNESS WHEREOF, the Declarant has caused these presents to be executed this 8th day of September, 1994.
