Cherokee Gardens, Viglini Unit

DECLARATION OF AMENDED AND RESTATED COVENANTS, CONDITIONS AND RE

PLAT AND SUBDIVISION BOOK 5, PAGES 66 and 67
THIS DECLARATION OF AMENDED AND RESTATED COVENANTS, CONDITIONS AND RESTRICTIONS FOR CHEROKEE GARDENS, VIGLINI UNIT (the "Declaration") is made this _____ day of _________, 2007 by the Owners of more than three-fourths (3/4ths) of the lots (the "Lots" as hereinafter defined) in the Viglini Unit of Cherokee Gardens, a subdivision (the "Viglini Unit"), the Plat of which is of record in the Plat Book 5, Pages 66 and 67, of record in the office of the County Court Clerk of Jefferson County, Kentucky (collectively the "Owners").
WHEREAS, there is imposed upon all of the Lots in the Viglini Unit certain covenants, conditions and restrictions as set forth in a Deed of record in Deed Book 1176, Page 243, and by amendments thereto of record in Deed Book 1669, Page 648, Deed Book 2174, Page 14 and Deed Book 5389, Page 888 respectively, all in the Clerk's office aforesaid; and
WHEREAS, the Owners desire to amend and restate the covenants, conditions, and restrictions of the Viglini Unit herein.
NOW, THEREFORE, the undersigned Owners hereby declare that they are the owners of at least three-fourths (3/4ths) of the Lots in the Viglini Unit and that all of the Lots in the Viglini Unit shall be held, sold and conveyed subject to the following restrictions, covenants and conditions, which are for the purpose of protecting the value and desirability of the Viglini Unit. The restrictions, covenants and conditions shall run with the Lots in the Viglini Unit and be binding on all parties having any right, title or interest in each Lot, their heirs, successors and assigns, and shall inure to the benefit of each Owner.


ARTICLE I. - DEFINITIONS
Except where terms are expressly defined otherwise herein, the following words, when used in this Declaration, shall have the following meanings:
Section 1. The "Board of Trustees" or "Board" shall mean and refer to the elected body of the Cherokee Gardens Neighborhood Association (the "Association"). With respect to any approval by the Board as hereinafter provided, such approval shall be within the sole and absolute discretion of the Board.
Section 2. "Common Area(s)" shall mean and refer to all real and personal property which the Association now or may hereafter own for the non-exclusive common use and enjoyment of the Owners of Lots as shown as common space on the final recorded subdivision Plat of the Viglini Unit and as may be more particularly described in this Declaration.
Section 3. "Lot(s)" shall mean and refer to the lots as shown on the Plat of the Viglini Unit as Lots 29-255 (inclusive).
Section 4. The term "mortgage" shall mean and refer to any mortgage, deed to secure a debt, and any and all other similar instruments used for the purpose of conveying or encumbering real property as security for the payment or satisfaction of an obligation.
Section 5. "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of any Lot which is part of the Viglini Unit but excluding any party holding the fee simple title merely as a security for the performance of an obligation.
Section 6. "Plat" shall mean and refer to the Plat of the Viglini Unit of record in Plat and Subdivision Book 5, Pages 66 and 67, in the office of the County Clerk of Jefferson County, Kentucky.
Section 7. The term "residential property," shall mean and refer to all real property intended for use and occupancy as single family residences as evidenced by Lots shown on the Plat.


ARTICLES II. - V - USE RESTRICTIONS, ARCHITECTURAL CONTROL, ETC.
ARTICLE II. - USE RESTRICTIONS
Section 1. Primary Use Restrictions. No Lot shall be used except for private single family residential purposes. No permanent structure shall be erected, placed, altered or permitted to remain on any Lot except single family dwellings designed for the occupancy of one family (including any domestic servants living on the premises), not to exceed two and one-half stories in height and containing a garage to be for the sole use of the Owner and occupants of the Lot.
Section 2. Nuisances. No noxious or offensive trade or activity shall be conducted on any Lot, nor shall anything be done which may be or become an annoyance or nuisance to the neighborhood.
Section 3. Use of Other Structures and Vehicles.
(a) No outbuilding of any sort shall be placed or erected on any Lot, except a detached garage originally constructed on a Lot at the time of the construction of the residence may be rebuilt, and a children's playhouse and a gazebo may all be placed or erected on a Lot with the prior written approval of the Board as provided in Article III, Section 1 hereof.
(b) No structure of a temporary character shall be permitted on any Lot. This Section 3(b) shall not prohibit the temporary erection of a tent or other portable shelter for entertainment or recreational purposes.
(c) No trailer, basement, tent, shack, garage, barn or structure other than the main residence erected on a Lot shall at any time be used as a residence, either temporarily or permanently.
(d) No trailer, truck, motorcycle, commercial vehicle, recreational vehicle, camper trailer, camping vehicle or boat shall be parked or kept on any Lot at any time unless housed in a garage. No automobile which is inoperable shall be habitually or continuously parked or kept on any Lot (except in the garage) or on any street. No trailer, boat, truck, recreational vehicle or other vehicle, except an automobile, shall be parked on any street for a period in excess of an aggregate of twenty-four (24) hours in any calendar year.  For purposes of this Section 3, a utility vehicle or pickup truck used by an Owner for personal transportation shall be considered an "automobile" and not a "truck."
(e) No automobile shall be continuously or habitually parked on any street or right-of-way. No parking shall be allowed on the grass of any Lot or in any Common Area.
Section 4. Animals. No animals, including reptiles, livestock or poultry of any kind shall be raised, bred or kept on any Lot, for any commercial purposes, except that dogs, cats or other household pets (meaning the domestic pets traditionally recognized as household pets) may be kept, providing they are not kept, bred or maintained for any commercial purposes. All animals shall remain under control at all times either by being on a leash, by being within a fenced area or by being controlled by an "invisible fence."
Section 5. Clothes Lines, Fences, Walls, Tennis Courts, Swimming Pools, Antennae and Receivers/Transmitters.
(a) No outside clothes lines shall be erected or placed on any Lot.
(b) No fence or wall of any nature may be extended toward the front or street side property line beyond the front or side wall of a residence. All fences shall be constructed of brick or iron or other materials approved in writing by the Board. The finished side of a fence or wall shall face away from the Lot upon which such fence or wall is constructed. All fences and walls, as structures, are subject to prior written approval by the Board. No wire or chain link fences are permitted except for tennis court fences permitted under Section 5(c) below.
(c) No tennis court fence shall be erected on any Lot unless (i) the fencing is coated with black or green vinyl, and (ii) the plan for such fence has been approved in writing by the Board.
(d) No above ground swimming pools or exterior spas, including but not limited to hot tubs and Jacuzzis, shall be erected or placed on any Lot unless the design and placement are approved in writing by the Board.
(e) No exterior antennae or microwave or other receivers and transmitters (including those currently called "satellite or digital T.V. dishes") shall be erected or placed on any Lot unless the site design and placement are approved in writing by the Board.
Section 6. Duty to Maintain Lot.
It shall be the duty of each Owner to keep the grass on the Owner's Lot properly cut, to keep the Lot free from weeds and trash and to keep it otherwise neat and attractive in appearance. It shall also be the duty of each Owner to trim and/or remove dead limbs and trees from the Owner's Lot. Should any Owner fail to do so, then the Board may take such action as it deems appropriate, including mowing, in order to make such Lot neat and attractive, and the Owner shall, immediately upon demand, reimburse the Association or other performing party for all expenses incurred in so doing, together with interest at the rate of 12%, and the Association shall have a lien on that Lot and the improvements thereon to secure the repayment of such amounts. Such lien may be enforced by foreclosure against that Lot and the improvements thereon, but such lien shall be subordinate to any first mortgage lien thereon.
Section 7. Duty to Repair and Rebuild.
(a) Each Owner shall, at the Owner's sole cost and expense, repair the residence, keeping the same in condition comparable to the condition of such residence at the time of its initial construction, excepting only normal wear and tear.
(b) If all or any portion of a residence is damaged or destroyed by fire, or other casualty, then the Owner shall, with all due diligence, promptly (within 180 days unless said time limit is extended by the Board) rebuild, repair, or reconstruct such residence in a manner which will substantially restore it to the condition which existed immediately prior to the casualty.
Section 8. Business Home Occupations. Except as provided herein, no trade or business of any kind shall be conducted on any Lot. A home occupation, as hereinafter defined, may be conducted on any Lot. A "home occupation" is defined as any occupation, trade, business or profession conducted within a residence by an individual or a group of individuals who are residents of the residence. No person not a resident of the residence shall be employed as a full or part-time employee in a home occupation. No advertising or any other display will indicate from the exterior that the residence is being used for any purpose other than that of a residence. No retail sales may occur on the premises. No more than five percent (5%) of the floor area of the residence, including the basement area and attached garage, or 200 square feet, whichever is less, may be used for the home occupation. No mechanical equipment may be used for the home occupation except such equipment that also can be used for purely domestic purposes. There shall be no visible evidence of the conduct of a home occupation as viewed from the public right-of-way and adjacent Lots.
Section 9. Signs. No sign for advertising or for any other purpose shall be displayed on any Lot, Common Area or on a building or a structure on any Lot, except one sign for advertising the sale or rent thereof, which shall not be greater in area than six (6) square feet. This restriction shall not prohibit placement of an occupant name sign and lot numbers as allowed by applicable zoning regulations.
Section 10. Rules of Common Area. The Board of Trustees is hereby authorized to adopt rules and regulations concerning the use of the Common Areas. Copies of such rules and regulations and amendments thereto shall be furnished by the Association to all Owners. Such rules and regulations shall be binding upon the Owners, their families, tenants, guests, invitees, and agents until and unless such regulation, rule or requirement shall be specifically overruled, cancelled or modified by the Board or by the members of the Association in a regular or special meeting by a majority of the total votes of the Association. The Board shall have the authority to impose reasonable monetary fines and other sanctions for violations of any such regulation, rule or requirement, and monetary fines may be collected by lien and foreclosure, as provided in Article IV.

ARTICLE III ARCHITECTURAL CONTROL-
Section 1. Approval of Construction and Landscape Plans.
(a) No structure may be erected, placed or altered on any Lot until the plans have been approved in writing by the Board. The Board may require such detail as it desires in order to determine if such structure conforms to the general scheme and nature of the Viglini Unit. The Board may require detailed plans and building specifications and a plan consisting of: (i) a survey of the Lot prepared by a land surveyor, licensed in the Commonwealth of Kentucky; (ii) an architectural rendering depicting the color and materials of all structures; (iii) the location and specifications of improvements including any building, fence, wall, or other structure, on the Lot; (iv) the grade elevation (including rear, front and side elevations); (v) the type of exterior material (including delivery of a sample thereof); (vi) the location, size and materials of the driveway; and (vii) a landscape plan, as set forth in Subparagraph (b) of this Section 1. In addition, the Board may establish a schedule for the completion of work which shall be adhered to unless extended by the Board.
In reviewing any proposed structure or landscape plan, the Board shall have the right to take into consideration the suitability of the structure or landscape plan to the site, the harmony thereof with the surroundings, and the effect of the structure or landscape plan on the view from adjacent or neighboring Lots or Common Areas.
(b) The landscape plan referred to in Subparagraph (a) of this Section 1 shall show the trees, shrubs and other plantings then existing or to be planted on the Lot.
(c) The term "structure" as used in this Section 1 shall include any building (including a garage), driveway, fence, wall, antennae, microwave and other receivers and transmitters (including those currently called "satellite or digital T.V. dishes"), swimming pool(s) and tennis court(s).
Section 2. Building Materials, Roof.
(a) The exterior building material of all structures shall extend to ground level and shall be either brick, stone, brick veneer, stone veneer, wood or other acceptable siding or a combination of same.
(b) The primary roof pitch of any residential structure shall not be less than nine (9) inches vertical for every twelve (12) inches horizontal.
Section 3. Minimum Floor Areas. The following shall be the minimum floor areas for homes to be constructed after this Declaration is recorded:
(a) The total floor area of a one story house shall be a minimum of 2,000 square feet.
(b) The total floor area of a one and one-half story house shall be a minimum 2,700 square feet.
(c) The total floor area of a two-story house shall be a minimum of 2,800 square feet.
(d) Basement areas (finished and unfinished), garages, decks, and open porches shall not be included in calculating floor areas.
Section 4. Setbacks. No structure shall be located on any Lot nearer to the front Lot line or the street side Lot line than the minimum building setback lines shown on the recorded Plat, and no structure or any portion thereof may extend over the minimum building setback lines for any reason without the Board's written approval.
Section 5. Garages, Carports.
(a) All Lots shall have at least a two car garage unless otherwise approved in writing by the Board. All garages shall have doors that must be maintained by the Owner in usable condition. Garages, as structures, are subject to prior plan approval under Section 1 of this Article III.
(b) No carport shall be constructed on any Lot.
ARTICLE IV. - THE ASSOCIATION
Section 1. Owner's Easements of Enjoyment. Every Owner shall have a right and easement of enjoyment in and to the Common Areas which shall be appurtenant to and shall pass with the title to every Lot. The Common Areas are hereby made subject to the Association. The right of enjoyment is subject to the following provisions:
(a) The right of the Association to permit the reasonable use of the Common Areas.
(b) The right of the Association to borrow money for the purpose of improving the Common Areas or for constructing, repairing or improving any facilities located or to be located thereon and to give as security for the payment of any such loan a mortgage encumbering all or a part of the Common Areas.
(c) The right of the Association to suspend the voting rights by an Owner for any period during which any assessment against the Owner's Lot remains unpaid, and for a reasonable period of time for any infraction of its Bylaws, published rules or regulations.
(d) The right of the Association to dedicate or transfer all or any part of the Common Areas to any public agency, authority or utility for such purposes and subject to such conditions as may be agreed to by the Association, provided such dedication or transfer is approved and accepted by the public agency, authority or utility, where such acceptance or approval is necessary.
Section 2. Association's Right of Entry. The authorized representative of the Association or the Board of Trustees of the Association shall be entitled to reasonable access to the individual Lots as may be required in connection with the preservation of property on an individual Lot or in the event of any emergency or in connection with the maintenance of repair or replacement within the Common Areas, of any equipment, facilities or fixtures affecting or serving other Lots or the Common Areas or to make any alteration required by any governmental authority.
Section 3. Assessments, Creation of the Lien and Personal Obligation. Each Owner, by acceptance of a deed for the Lot, whether or not it shall be so expressed in such deed, covenants and agrees to pay to the Association (i) annual assessments or charges, and (ii) special assessments for capital improvements, such assessments to be established and collected as provided in this Article IV. The annual and special assessments, together with interest, costs and reasonable attorneys' 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 attorneys' fees, shall also be the personal obligation of the person who was the Owner of such Lot at the time when the assessment fell due. The personal obligation for delinquent assessments shall not pass to the Owner's successors in title unless expressly assumed by such successors.
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 Areas, including fixtures and personal property related thereto. Any such assessment shall require the assent of a simple majority of the Owners of Lots in the Viglini Unit.
Section 5. Uniform Rate of Assessment, Amount. Both annual and special assessments shall be fixed at a uniform rate for all Lots based upon the square footage of each Lot.
Section 6. Effect of Nonpayment of Assessments, Remedies of the Association. Any assessment not paid by the due date shall bear interest from the due date at the maximum rate of interest then allowable by Kentucky law. The Association may bring an action at law against the Owner personally obligated to pay the assessment, or foreclose the lien against the property, and interest, costs and reasonable attorney fees of such action or foreclosure shall be added to the amount of such assessments. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Areas or abandonment of that Owner's Lot.
Section 7. Subordination of the Lien to First Mortgage. The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage on the Lot. Sale or transfer of any Lot shall not affect the assessment lien or liens provided for in the preceding sections. 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.
Section 8. Membership. Every Owner of a Lot which is subject to an assessment shall be a Member of the Association. Such Owner and Member shall abide by the Association's Bylaws, and rules and regulations adopted by the Association. Every Owner shall pay the assessments provided for in this Declaration when due, and shall comply with the decisions of the Association's Board of Trustees. Membership shall be appurtenant to and may not be separated from ownership of any Lot which is subject to assessment.

ARTICLE V. - GENERAL PROVISIONS
Section 1. Enforcement. Enforcement of these restrictions shall be by proceeding of law or in equity, brought by any Owner or by the Association against any party violating or attempting to violate any covenant or restriction, either to restrain violation, to direct restoration and/or to recover damages. Failure of any Owner or the Association to demand or insist upon observance of any of these restrictions or covenants, or to proceed for restraint of violations, shall not be deemed a waiver of a violation, or the right to seek enforcement of these restrictions.
Section 2. Severability, Modification. The provisions of this Declaration are severable. If any provision or portion thereof shall be held or adjudged invalid or unenforceable, the remaining provisions or portions thereof shall not be invalidated thereby, but shall remain in full force and effect.
While the covenants, conditions or restrictions set forth above are considered to be reasonable in all circumstances, it is recognized that covenants, conditions or restrictions of this nature may fail for reasons unforeseen, and accordingly it is hereby declared that if any of such covenants, conditions or restrictions shall be adjudged void as going beyond what is reasonable in all circumstances, the said covenant, condition or restriction shall apply with such modifications as may be necessary to make it valid and effective.
Section 3. Restrictions Run with Land; Amendment. Unless cancelled, altered or amended under the provisions of this Section 3, these covenants, conditions, and restrictions are to run with the land and shall be binding on all parties claiming under them for a period of twenty (20) years from the date this document is recorded, after which time they shall be extended automatically for successive periods of twenty (20) years, unless an instrument signed by a majority of Owners prior to the date of extension is placed of record in the Jefferson County Clerk's office canceling such automatic extension. Thereafter, these restrictions may be cancelled, altered or amended at any time by the affirmative vote of the owners of three-fourths (3/4) of the Lots subject to these restrictions. No cancellation of, alteration of or amendment to any covenant, condition or restriction shall take effect until the Owners of three-fourths (3/4) of the Lots subject to these restrictions file in the Office of the Jefferson County Clerk an Amendment to the Declaration of Restrictions describing such cancellation of, alteration to or amendment to such provision herein.
Section 4. Amendments to Articles and Bylaws of the Association. Nothing in this Declaration shall limit the right of the Association to amend, from time to time, its Bylaws.
Section 5. Non-liability of the Directors and Officers. Neither the Trustees or the clerk of the Association shall be personally liable to the Owners of the Lots for any mistake of judgment or for any other acts or omissions of any nature whatsoever while acting in their official capacity, except for any acts or omissions found by a court to constitute gross negligence or actual fraud. The Owners shall indemnify and hold harmless the Trustees and the Clerk of the Association and their respective heirs, executors, administrators, successors and assigns.
Section 6. Board of Trustees of the Association's Determination Binding. In the event of any dispute or disagreement between any Owners relating to the property subject to this Declaration, or any questions of interpretation or application of the provisions of this Declaration or the Bylaws of the Association, the determination thereof by the Board of Trustees of the Association shall be final and binding on each and every such Owner.
WITNESS the signatures of the Owners of Lots in Cherokee Gardens, Viglini Unit on the dates appearing below each signature. WITNESS the signatures of the Owners of Lots in Cherokee Gardens, Viglini Unit on the dates appearing below each signature.
10257321.2


COMMONWEALTH OF KENTUCKY )
) :SS
COUNTY OF JEFFERSON )

The foregoing Declaration of Restrictions was acknowledged before me, a Notary Public, this _____ day of , 200___, by and , husband and wife/unmarried (strike incorrect reference) whose address is , Louisville, Kentucky 40206, owner(s) of Lot _________ of Cherokee Gardens, Viglini Unit.
My Commission expires: .

NOTARY PUBLIC