Covenants of Briarhurst West Neighborhood Association

This declaration made this 12th day of October 1973, by Briar West Inc., a Nebraska Corporation, Owner and Developer of real property described as follows: All of Blocks one, two, three, four, five and six (1,2,3,4,5 and 6) and Outlots A, B, C, D, E, and F all in Briarhurst West addition to the City of Lincoln, Nebraska Said Owner and Developer do hereby declare that said real estate shall be held, sold and conveyed subject to the easements, restrictions, covenants, reservations, liens, charges and conditions which shall run with the land and shall be binding upon all parties having or acquiring any right, title or interest thereon or any part thereof, as fellows:

ARTICLE I Definitions

Section 1. “Association” shall mean and refer to the Briarhurst West Neighborhood Association of owners which shall be incorporated under the Nebraska Non-profit Corporations Act, and its successors.

Section 2. “Property” shall mean and refer to the real estate above described together with such additions as may be made thereof under the terms of this Declaration.

Section 3. “Common Area” shall mean that portion of the property designated as such, and which shall be held for the common use and enjoyment of all of the members of the Association. It shall include, the property shown on the plat of Briarhurst West Addition as Outlots B, D, E and F.

Section 4. “Lot” shall mean and refer to any designated portion of the property as shown on the recorded subdivision plat, with the exception of the Common Area and streets.

Section 5. “Member” shall mean and refer to any person or entity who holds membership in the Association.

Section 6. “Owner” shall mean and refer to the record owner, whether one or more persons or entities, of any Lot which is a part of the property, including contract sellers, but excluding those having such interest merely as security for the performance of an obligation.

Section 7. “Developer” shall mean and refer to Briar West Inc., a Nebraska corporation, and its successors and assigns if such successors or assigns have or acquire a majority of the undeveloped Lots for the purpose of development.

ARTICLE II Annexation of Additional Property

As long as there is a Class B membership, Developer may, by instrument duly executed by it, approved by the City of Lincoln and recorded, add additional land to the property, and additional unencumbered property to the common area, and no consent or approval of other members of the Association shall be required, provided however, that such additional property and common area shall be located within Sec. 7-9-7 and that the added property and common area is finally platted in conformance with the community unit plan now on file with the City of Lincoln. Additional residential property and common area not within the foregoing provisions may be annexed only with the consent of two-thirds (2/3) of each class of members.

ARTICLE III Membership and Organization of the Association

Every person or entity who is a record owner of a fee or undivided fee interest in any Lot which is subject to the terms of this instrument shall be a member of the Association, including contract sellers, but not including persons or entities who hold an interest merely as security for the performance of an obligation. Membership shall be appurtenant to and may not be separated from ownership of any Lot, and ownership of such Lot shall be the sole qualification for membership. At its first meeting, the Association shall adopt By-Laws for its organization and the conduct of its business, which By-Laws shall include provision for the election of directors and officers.

ARTICLE IV Voting Rights

The Association shall have two classes of voting membership:

Class A members of the Association shall be all those Owners as defined in Article III hereof with the exception of the Developer. Class A members shall be entitled to one vote for each Lot in which they hold the interest required for membership. When more than one person holds an interest in any Lot, all of such persons shall be members, but in no event shall more than one vote be cast with respect to one Lot and the vote for such Lot shall be exercised as they among themselves shall determine.

Class B members of the Association shall be the Developer, and the Class B member shall be entitled to three votes for each Lot in which it holds the interest required for membership by Article III, provided that Class B membership shall cease and be converted to Class A membership on the happening of either of the following events, whichever first occurs in point of time:

(a) When the total vote outstanding in Class A membership equals the total vote outstanding in the Class B membership, or

(b) On December 31, 1983.

ARTICLE V Property Rights in the Common Area

Section 1. Developer hereby covenants for himself, his successors and assigns, that he will convey the Common Area to the Association, free and clear of all encumbrances and liens, prior to the conveyance of the first lot in the property, to persons other than the Developer.

Section 2. Every member shall have the right and easement of enjoyment in and to the Common Area and such easement shall be appurtenant to and shall pass with the title to every lot, subject to the following provisions:

(a) Subject to the provisions of Section 3 of this Article, use of the Common Area shall be restricted to members and their guests, and the Association shall have the right to limit the number of guests or members and to adopt reasonable regulations applicable to use by guests.

(b) The Association shall have the right to charge a reasonable admission or other fee for the use of any recreational facility situated upon the Common Area, and shall also have the right to contract with Developer or with any other person, persons or entity for the charging of reasonable admission or other fees in exchange for management, development, maintenance and improvement of any such recreational area.

(c) The Association shall have the right, in accordance with its By-Laws, to borrow money for the purpose of improving the Common Area and facilities and to mortgage said property provided such action has the consent of two-thirds (2/3) of each class of membership and1 provided, further, that the rights of any mortgagee shall be subject to the rights of the members of the Association while any mortgage is current and not in default.

(d) The Association shall have the right to suspend the voting rights and rights to use the Common Area and recreational facilities therein by a member for the period during which any assessment against the Lot of the Owner remains unpaid; and for a period not to exceed thirty (30) days for any infraction of its published rules and regulations.

(e) The Association shall have the right to dedicate or transfer all or any part of the Common Area to the City of Lincoln, with its consent, for such purposes and subject to such conditions as may be agreed to by the members. No such dedication or transfer shall effective, however, unless an instrument signed by members entitled to cast two-thirds of the vote of the Class A membership and two—thirds of the votes of the Class B membership, any, has been recorded, agreeing to such dedication or transfer, and unless written notice the proposed action is sent to every member not less than thirty (30) days nor more than sixty (60) days in advance of the taking of any such action. Developer shall have the right at time prior to the complete development of the property described in Article II to use so much of the Common Area as it deems necessary or advisable for the purpose of aiding in the constructions and development of unimproved lots and shall have the further right to dedicate such easements and rights-of-way in the Common Area as it may consider to be necessary or advisable for the purposes of development.

Section 3. In addition to the aforementioned restrictions and conditions, the use of the Common Area shall be subject to the following restrictions:

(a) No use shall be made of the Common Area which will in any manner violate the statutes, rules or regulations of any governmental authority having jurisdiction over such Common Area.

(b) No Owner shall place any structure whatsoever upon the Common Area, nor shall any Owner engage in any activity which would temporarily or permanently deny free access to any part of the Common Area to all members.

(c) The use of the Common Area shall be subject to such rules and regulations as may be adopted from time to time by the Board of Directors of the Association.

Section 4. Any member may delegate, in accordance with the By-Laws of the Association, his right of enjoyment in the Common Area and facilities to members of his family, his tenants, or to contract purchasers who reside on the property.

ARTICLE VI Covenant for Maintenance Assessments

Section 1. Creation of the Lien and Personal Obligation Assessments. The Declarant, for each Lot owned within the Properties, hereby covenants, and each Owner of any Lot by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association: (I) annual assessments or charges, and (2) special assessments for capital improvements, such assessments to be established and collected as hereinafter provided. The annual and special assessments, together with interest, costs, and reasonable attorney’s fees, shall be a charge on the land and shall be a continuing lien upon the property against which each such assessment is made. Each such assessment, together with interest, costs, and reasonable attorney’s fees, shall also be the personal obligation of the person who was the Owner of such property at the time when the assessment fell due. The personal obligation for delinquent assessments shall not pass to his successors in title unless expressly assumed by them.

Section 2. Purpose of Assessments. The assessments levied by the Association shall be used exclusively to promote the recreation, health, safety, and welfare of the residents in the Properties and for the improvement and maintenance of the Common Area, and of the homes situated upon the Properties.

Section 3. Maximum Annual Assessment. Until January 1 of the year immediately following the conveyance of the first lot to an Owner, the maximum annual assessment shall be Sixty Dollars ($60.00) per Lot.

(a) From and after January 1 of the year immediately following the conveyance of the first Lot to an Owner, the maximum annual assessment may be increased each year not more than 3% above the maximum assessment for the previous year without a vote of the membership.

(b) From and after January 1 of the year immediately following the conveyance of the first Lot to an Owner, the maximum annual assessment may be increased above 3%by a vote of two-thirds (2/3) of each class of members who are voting in person or by proxy, at a meeting duly called for this purpose.

(c) The Board of Directors may fix the annual assessment at an amount not in excess of the maximum.

Section 4. Special Assessments for Capital Improvements. In addition to the annual assessments authorized above, the Association may levy, in any assessment year, a special assessment applicable to that year only for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair or replacement of a capital improvement upon the Common Area, including fixtures and personal property related thereto, provided that any such assessment shall have the assent of two-thirds (2/3) of the votes of each class of members who are voting in person or by proxy at a meeting duly called for this purpose.

Section 5. Notice and Quorum for Any Action Authorized Under Sections 3 and 4. Written notice of any meeting called for the purpose of taking any action authorized under Section 3 or 4 shall be sent to all members not less than 30 days nor more than 60 days in advance of the meeting. At the first such meeting called, the presence of members or of proxies entitled to cast sixty percent (60%) of all of the votes of each class of membership shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirement, and the required quorum at the subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than 60 days following the preceding meeting.

Section 6. Uniform Rate of Assessment. Both annual and special assessments must be fixed at a uniform rate for all Lots and may be collected on a monthly basis.

Section 7. Date of Commencement of Annual Assessments: Due Dates. The annual assessments provided for herein shall commence as to all Lots on the first day of the month following the conveyance of the Common Area. The first annual assessment shall be adjusted according to the number of months remaining in the calendar year. The Board of Directors shall fix the amount of the annual assessment against each Lot at least thirty (30) days in advance of each annual assessment period. Written notice of the annual assessment shall be sent to every Owner subject thereto. The due dates shall be established by the Board of Directors. The Association shall, upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the association setting forth whether the assessments on a specified Lot have been paid.

Section 8. Effect of Non payment of Assessments: Remedies of the Association. Any assessment not paid within thirty (30) days after the due date shall bear interest from the due date at the rate of 8 percent per annum. The Association may bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien against the property. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Area or abandonment of his Lot.

Section 9. Subordination of the Lien to Mortgages. The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage. Sale or transfer of any Lot shall not affect the assessment lien. However, the sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding in lieu thereof, shall extinguish the lien of such assessments as to payments which became due prior to such sale or transfer. No sale or transfer shall relieve such Lot from liability for any assessments thereafter becoming due or from the lien thereof.

Section 10. All properties dedicated to and accepted by the City of Lincoln and the Common Area shall be exempt from all annual and special assessments of the Association.

ARTICLE VII General Restrictions

Section 1. No lot shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot in Block 1; on any lot in Block 2; on Lots 1 to 7 inclusive, and Lot 16 in Block 3; on Lots 2 to 8 inclusive, of Block 5; on any lot in Block 6; other than one single family dwelling, not to exceed two stories in height and a private garage for not more than three cars. Two family dwellings not to exceed two stories in height and a private garage for not more than four cars, may be constructed on Lots 8 through 15, inclusive, of Block 3; Lots 1 through 6 inclusive, of Block 4; and Lot 1 and Lots 9 through 12, inclusive, of Block 5. At least two off-street parking spaces for each dwelling in a two-family unit shall be provided if either on the same lot or in a parking area convenient to the dwelling unit it will serve. Parking areas for automobiles and recreational crafts and vehicles may be located in the common open areas; provided the location, design and screening of said parking areas shall be approved by the Developer prior to construction.

Section 2. No building shall be located on any lot nearer than 25 feet to a front lot line or nearer than 25 feet to any side street line. Except as shown on the plat, no side yard set back shall be required unless dwellings on adjoining lots do not have a common wall, in which case there shall be a minimum distance of 10 feet between dwellings, and provided that a dwelling having no set-back on one side lot line shall be set back 10 feet from the opposite lot line. No dwelling shall be located nearer than 25 feet or 20% of the lot depth, whichever is least, to the rear lot line. For the purposes of this covenant, eaves, steps and open porches shall not be considered part of building, provided however, that this shall not be construed to permit any portion of a building on a lot to encroach upon another lot.

Section 3. Easements for installation and maintenance of utilities, drainage facilities and walkways are reserved as shown on the recorded plat and a utility easement over the rear 5 feet of each lot is specifically reserved.

Section 4. No noxious 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.

Section 5. No structure of a temporary character, trailer, basement, tent, shack, garage, barn or other out-building shall be erected upon, or used, on any lot at any time as a residence, either temporarily or permanently.

Section 6. No boats, campers, or trailers shall be regularly parked on any Owner’s lot, but may be parked in a special parking area which may be provided by the Developer or the Association.

Section 7. Dwellings constructed in another addition or location shall not be moved to any lot within this addition.

Section 8. No animals, livestock or poultry of any kind shall be raised, bred or kept on any lot, except that dogs, cats or other household pets may be kept: provided they are not kept, bred or maintained for any commercial purpose.

Section 9. No excess dirt which has been removed from any lot shall be removed from the Briarhurst West Addition. Any such excess dirt shall be deposited within the Briarhurst West Addition at the direction of the Developer.

Section 10. The owner of any lot which is abutting on the road buffer area shall plant and maintain a suitable number of trees within said road buffer area in accordance with a plan approved by the City Planning Director.

ARTICLE VIII Party Walls

Section 1. Each wall which is built as a part of the original construction of the homes upon the property and placed on the dividing line between the Lots shall constitute a party wall and, to the extent not inconsistent with the provisions of this Article, the general rules of law regarding party walls and liability for property damage due to negligence or willful acts of omissions shall apply.

Section 2. The cost of reasonable repair and maintenance of a party wall shall be shared by the Owners who make use of the wall in proportion to such use.

Section 3. If a party wall is destroyed or damaged by fire or other casualty, any Owner who has used the wall may restore it, and if the other Owners thereafter made use of the wall, they shall contribute to the cost of restoration thereof in proportion to such use without prejudice, however, to the right of any such Owners to call for a larger contribution from the others under any rule of law regarding liability for negligent or willful acts or omissions.

Section 4. Notwithstanding any other provision of this Article, an Owner who by his negligence or willful act causes the party wall to be exposed to the elements shall bear the whole cost of furnishing the necessary protection against such elements.

Section 5. The right of any Owner to contribution from any other Owner under this Article shall be appurtenant to the land and shall pass to such Owner’s successors in title.

Section 6. In the event of any dispute arising concerning a party wall, or under the provisions of this Article, each Owner involved in such dispute shall choose one arbitrator, and such arbitrators shall choose one additional arbitrator. The cost of any such arbitration shall be borne equally by the parties involved. No legal action with respect to a party wall dispute shall be commenced or maintained unless and until the provisions of the arbitrators have been met. The appointment of arbitrators hereunder shall be made within twenty (20) days after notice by one Owner to the other Owner that a dispute exists.

ARTICLE IX Architectural Control

Section 1. No building, fence, wall or other structure shall be commenced, erected or maintained upon the property, nor shall any exterior additions to or change or alteration therein be made until the plans and specifications showing the nature, kind, shape, height, materials and location of the same shall be submitted to and approved in writing as to the harmony of external design and location in relation to the surrounding structures and topography by the directors of the Association, or by an architectural committee composed of three or more representatives appointed by the board. In the event that the Board of Directors, or its designated committee, fails to approve or disapprove such design and location thirty (30) days after such plans and specifications have been submitted to it, approval will not be required and this Article will be deemed to have been fully satisfied.

Section 2. No construction of any dwelling unit shall proceed until the same has been approved by the Superintendent of Building Inspections for the City of Lincoln and no dwelling unit shall be occupied until said Superintendent of Building Inspections has found that the Permittee has complied with all the terms, conditions and requirements set forth by the City of Lincoln in approving said permit.

ARTICLE X Exterior Maintenance

In the event that an Owner of any Lot in the Property shall fail to maintain the premises and the improvements situated thereon in a manner satisfactory to the Board of Directors of the Association, the Association, after approval by two-thirds (2/3) decision of the Board of Directors, shall have the right, through its agents and employees, to enter upon said parcel of ground and to repair, maintain and restore the Lot and the exterior of the buildings and any other improvements erected thereon. The cost of such exterior maintenance shall be added to and become a part of the annual assessments to which such Lot is subject.

ARTICLE XI Easements

The easements over and across the Common Area shall be those shown on the recorded plat of the subdivision, and such other easements as may be established pursuant to the provisions of this Declaration of Covenants, Conditions and Restrictions, by the Developer or the directors of the Association.

ARTICLE XII General Provisions

Section 1. It shall be the general obligation and duty of the Association to properly maintain and repair all Common Areas, and the walks, drives, open drainage areas, concrete low flow channel liners, parking areas, parking islands, landscaping, recreational facilities, and all structures and improvements therein, or a part of the common system in accordance with reasonable standards as generally required by the City of Lincoln, and nothing in this Declaration shall be construed as any limitation upon the authority of the City of Lincoln to enter upon said property and perform necessary maintenance should the Association fail to do so, and to assess the property with the cost thereof.

Section 2. The Association, any member thereof or the City of Lincoln, shall have the right to enforce, by proceedings at law or in equity, all restrictions, conditions, covenants reservations, liens and charges now or hereafter imposed by the provisions of this Declaration Failure by the Association, any member thereof or the City of Lincoln to enforce any covenant or restrictions herein contained shall in no event be deemed a waiver of the right to do so.

Section 3. Any firm, person, corporation or other entity which shall succeed to title of an Owner through foreclosure of a mortgage or other security instrument or through other legal proceedings, shall upon issuance of the official deed to any Lot, become thereupon a member of the Association and succeed herein provided. Conveyance by such person, firm, corporation or other entity shall pass membership in the Association to the Buyer as herein provided.

Section 4. The covenants and restrictions of this Declaration shall run with the land an bind the same, and shall enure to the benefit of and be enforceable by the Association, or the Owner of any Lot subject to this Declaration, or by their respective legal representatives, heirs, successors and assigns, for a term of twenty (20) years from the date of this Declaration after which time said covenants and restrictions shall be automatically extended for successive periods of ten years, unless revoked or amended by instruments signed by not less than ninety percent (90%) of the Lot Owners if during the first twenty (20) years, and thereafter by an instrument signed by not less than seventy-five percent (75%) of the Lot Owners. Any instrument amending, modifying or canceling this Declaration must be approved by the City of Lincoln and must be properly acknowledged and recorded before it shall be effective.

Section 5. In the event that the Association, the members thereof, or the directors of the Association shall fail or neglect to perform its rights, duties and obligations in accordance with the intents, purposes and provisions of this Declaration, then Developer reserves the right to call such meetings, make such appointments and to take such further action as may be necessary, from time to time, to insure that the objects and purposes of this Declaration are being fulfilled.

Section 6. FHA/VA Approval. As long as there is a Class B membership, the following actions will require the prior approval of the Federal Housing Administration or the Veterans Administration: Annexation of additional properties, dedication of Common Area, and amendment of this Declaration of Covenants, Conditions and Restrictions.