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AMENDED AND RESTATED DECLARATION OF COVENANTS, RESTRICTIONS
AND EASEMENTS FOR WILTSHIRE AT OXFORD
THIS AMENDED AND
RESTATED DECLARATION OF COVENANTS,
RESTRICTIONS AND EASEMENTS (‘Declaration’) is made and executed this 30 of
October, 1998, by JMCW, INC. (“Declarant”), a Pennsylvania corporation,
having a mailing address of 1020 Broadrun Road, Landenberg, Pennsylvania 19350.
BACKGROUND
A. Declarant is the owner of a certain parcel of land situate in East Nottingham
Township, Chester County, Pennsylvania, more fully described on Exhibit “A”
which is
attached hereto and made a part hereof (the “Property”), and which has been
subdivided
pursuant to a certain plan entitled “Wiltshire at Oxford” prepared for
Declarant by Lake,
Roeder, Hillard & Beers, Inc. dated December 9, 1996 (last revised June 26,
1998), and
recorded in the Office of the Recorder of Deeds in and for Chester County,
Pennsylvania as
Plan No. 14559 (the “Wiltshire Subdivision Plan”).
B. Declarant executed a certain Declaration of Covenants, Restrictions and
Easements for Wiltshire at Oxford dated August 24, 1998 which was recorded in
Chester
County on August 26, 1998 in Record Book 4408, Page 1456 with respect to the
Property (the
“Original Declaration”). The Declarant intends that this Declaration shall
supercede and
replace the Original Declaration (and the Declaration Plan recorded
contemporaneous with the
Original Declaration) for all purposes.
C. This Declaration has been recorded in order, inter alia: (1) to give notice
that the
Declaration Plan (as that term is defined in the Original Declaration) was filed
for a purpose
that is no longer of any relevance to the Property or the development of the
Property or to the
sale and ownership of Lots and that no person or party should rely in any way
upon any part of
the Declaration Plan for any matter having to do with the Property; (ii) to add
Lot 160 shown
on the Wiltshire Subdivision Plan to the Property; (iii) to provide for the
installation of an
Entrance Sign on Lot 71 and to create an Entrance Sign easement related thereto;
(iv) to delete
the designation of Lots 1 through 67 as “Withdrawable Real Estate” and to
delete the
applicability of the concept of the Withdrawable Real Estate; and (v) to amend
Section 9.03
relating to the amendment of the Declaration to give Declarant right to amend
Declaration
during Declarant Control Period.
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D. The Property has been subdivided into one hundred and sixty-three (163) lots
(each a “Lot” and collectively the ‘Lots”) to be improved with single
family detached
residential dwellings, as shown on the Wiltshire Subdivision Plan. Of the Lots
subject to this
Declaration, Lot 54 and Lot 160 are improved with Dwellings and the remaining
one hundred
and sixty-one (161) Lots are unimproved residential dwelling lots. Lots 75 and
80 are
partially located in the Borough of Oxford.
E. Declarant desires in accordance with this Declaration to provide for the
preservation, use and occupancy of the Lots and the Property in a manner that
will be
beneficial to the owners and occupants of the Lots and dwellings thereon; to
create, grant and
reserve certain easements over and across the Property for the benefit of
Declarant and the
owners of the Lots and to create an association of homeowners in the community
for the
purpose of owning, maintaining, managing, administering, repairing . and
replacing certain
common facilities, and to carry out certain other obligations and functions as
are more fully set
forth herein, all for the purpose of protecting the value and desirability of
the Property and the
Lots.
NOW, THEREFORE, the Declarant hereby declares and covenants for itself and its
successors and assigns, that the Property described on Exhibit “A” and shown
on the Wiltshire
Subdivision Plan is and shall be held, transferred, sold, conveyed, used and
occupied under
and subject to all the covenants, restrictions, easements and conditions
hereinafter set forth in
this Declaration, all of which shall be run with title to the Property and each
of the Lots within
the Property, and which shall be binding upon all parties having or acquiring
any interest in the
Property or any of the Lots, for the term specified herein.
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ARTICLE I - DEFINITIONS
1 .01 Defined Terms. In addition to the terms defined in the Recitals of this
Declaration and elsewhere in this Declaration, the following terms, when used
herein, shall
have the meanings ascribed to them in this Article I.
(a) “Act” means the Uniform Planned Community Act, 68 P.S. §5101, et seq.,
as
amended by Act 37 of 1998 to the Act.
(b) “Assessments” means those levies, assessments or sums payable by one or
more
Lot Owners from time to time as levied or assessed by the Association, in
accordance with this
Declaration. The term Assessments shall also include any amounts that may become
payable
by any Lot Owner or that may be levied or assessed by the Association against
any Lot,
including hut not limited to, costs of collection, attorneys’ fees, late
charges, interest, fines and
penalties.
(c) “Association” means the Wiltshire Homeowners Association, Inc., which
has
been or shall be organized as a Pennsylvania non-profit corporation for the
association of all
Lot Owners, which shall have those duties, rights and privileges that are set
forth in this
Declaration, in the By-laws and in the Act.
(d) “By-laws” means the rules and regulations, as from time to time in
effect, for
the governance of the Association and for the regulation of the organization of
the Association.
The By-laws shall be binding upon the Association and all Lot Owners
notwithstanding that
such By-laws or any amendments thereto are not recorded.
(e) “Common Expense Liability” means the liability for Common Expenses
allocated to each Lot Owner.
(f) “Common Expenses” means and includes the actual and estimated expenses
incurred by the Association from time to time for the general benefit of all Lot
Owners,
including but not limited to the actual and estimated costs and expenses of: (i)
operating the
Association; (ii) obtaining insurance coverages required or permitted hereunder;
(iii)
maintaining such fire hydrants as may be required by the Township including fire
hydrant
rental fees plus any related administrative fees as may be billed to the
Association by the
Township from time to time; (iv) maintaining, operating and repairing the Common
Facilities
and the Controlled Facilities, and the establishment of reserves for future
costs of maintenance,
repair or replacement of any of the Common Facilities and the Controlled
Facilities; (v)
settling or satisfying any claim made by any Person against the Association; and
(vi) all other
costs, expenses and liabilities incurred or to be incurred by the Association in
carrying out its
rights, duties and privileges pursuant to this Declaration and the By-laws.
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(g) “Common Facilities” means and includes that part of the Community
consisting
of: (i) the Open Space areas as depicted on the Wiltshire Subdivision Plan and
as more fully
bounded and described in Exhibit “B”; (ii) the Stormwater Management
Easements as depicted
on the Wiltshire Subdivision Plan; (iii) Detention Basin Nos. 1, 2, 3, 4 and 5
located in the
Open Space as depicted on the Wiltshire Subdivision Plan; (iv) Drainage Easement
No. 1
located on Lots 130, 132, 133, 134 and 135, 136 and 137 as depicted on the
Wiltshire
Subdivision Plan and as more fully bounded and described in Exhibit “C”; and
(v) Drainage
Easement No. 2 located on Lots 146, 152, 153, 154, 155 as depicted on the
Wiltshire
Subdivision Plan and as more fully bounded and described in Exhibit “D”;
(vi) Drainage
Easement No. 3 located on Lots 31, 32 and 34 as depicted on the Wiltshire
Subdivision Plan
and as more fully bounded and described in Exhibit “E”,; (vii) Drainage
Easement No. 4
located on Lot 87 as depicted on the Wiltshire Subdivision Plan and as more
fully bounded and
described on Exhibit “F”; Drainage Easement No. 5 located on Lot 70 as
depicted on the
Wiltshire Subdivision Plan and as more fully bounded and described as Exhibit
“G”; and
Drainage Easement No. 6 located on Lots 101 and 102 as depicted on the Wiltshire
Subdivision Plan and as more fully bounded and described as Exhibit ‘H”.
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(h) ‘ Community” means the residential development known as Wiltshire at
Oxford,
and includes all of the Property and all of the Lots, the Common Facilities,
Controlled
Facilities and Limited Controlled Facilities.
(i) “Controlled Facilities’ means and includes that part of the Community,
consisting of: (i) the entrance signs (“Entrance Signs”) and any associated
structures and
landscaping located on Lots 1, 54, 68, 71 and within Open Space III as depicted
on the
Wiltshire Subdivision Plan and as more fully bounded and described in Exhibit
“I” (which
includes a depiction of the entrance sign and associated structures and
landscaping located on
Lot 71, which is marked as Exhibit “1-2”); (ii) the split rail wetlands
protection fence (“Split
Rail Fence”) to be located within or along Lots 35, 36, 37, 38, 39, 40 and 41
as shown on the
Wiltshire Subdivision Plan; and (iii) the wetlands earthen berm (the “Earthen
Berm”) to be
located within or along Lots 84, 85, 86, 87, 88, 89 and Lots 108, 109, 110, 111,
112, 113,
114, 115, 116, 117 as shown on the Wiltshire Subdivision Plan.
(I) “Dwelling” means a single family, detached, residential building, as the
term
“building” is used and defined in the current East Nottingham Township
Zoning Ordinance.
The term dwelling shall also include all portions of the Lot on which such
Dwelling is located
and all other structures located on such Lot.
(k) “Declarant” means the Declarant originally named in the introduction to
this
Declaration, and any successor developer of all or a part of the Property who
succeeds to the
rights of the Declarant hereunder in accordance with the terms hereof.
(1) “Declaration’ means this Declaration of Covenants, Restrictions and
Easements
for Wiltshire at Oxford, as from time to time amended and supplemented. Words
such as
“herein”, “hereof”, “hereto” and similar words when used herein,
shall be deemed to refer to
this Declaration in its entirety, as amended from time to time, unless the
context otherwise
clearly requires.
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(in) “Eligible Mortgagee” means the holder, insurer or guarantor of a first
mortgage
lien on one or more Lots, who shall have given notice to the Association of its
name, address
and the Lot against which it holds, insures or guarantees a first mortgage.
(n) “Executive Board” means the governing body of the Association,
consisting of
those individuals elected from time to time to serve on the Executive Board of
the Association
pursuant to this Declaration and the By-laws.
(o) “Limited Common Expenses” means the actual expenses incurred from time
to
time in connection with the oversight and control of the operation of the
Limited Controlled
Facilities.
(p) “Limited Controlled Facilities” means and includes the roof water
collection
seepage beds (“Seepage Beds”) to be located on Lots 158, 159, 161, 162 and
163.
(q) “Lot” means a separate and subdivided parcel of land as shown on the
Wiltshire
Subdivision Plan, which has been approved for the improvement of a Dwelling
thereon, and
such term shall be deemed to include any Dwelling now or hereafter located on
such Lot.
(r) “Lot Owner” means the Declarant or any record owner, whether one or more
persons or entities, of the fee simple title to any Lot, except a person holding
such title solely
as security for an obligation. If more than one Person holds title to any Lot,
all such Persons,
taken together, shall be deemed to be a single Lot Owner for all purposes of
this Declaration,
and all obligations imposed on a Lot Owner pursuant to this Declaration shall be
the joint and
several obligations of all of the Persons holding title to the particular Lot.
(s) “Member” means a Person entitled to membership in the Association.
(t) “Municipal Improvements” shall mean and refer to the interior streets,
including
Apple Tree Lane, Quill Court, Slate Hill Drive, Old Library Lane, Inkwell Court,
Cornerstone
Court, Schoolview Lane, the unpaved area identified as “Future Street/Water
Line Right-of-
Way” between Lot 107 and Open Space I, the unpaved area identified as “Future
Street/Water
Line Right-of-Way” between Lot 95 and Lot 96 (collectively the “Interior
Streets”), Pump
Station and Sewer Lines and appurtenances and all easements necessary therefore
referred to in
Section 2.06 hereof. Nothing contained in this Declaration shall be construed in
any way as
binding either the Township or the Oxford Sewer Authority to accept dedication
of the
Municipal Improvements referred to herein.
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u) “Open Space”
means those portions of the Property designated as “Open Space”
on the Wiltshire Subdivision Plan, which shall be subject to such limitations
and restrictions as
may be imposed upon the Association and/or Lots in connection with the use
thereof.
(v) “Person” means a natural person, corporation, partnership, association,
trust or
other entity or combination thereof.
(w) “Property” means Lots 1 ~•~~ugh 163 inclusive, together with the
Common
Facilities, the Controlled Facilities, the Limited Controlled Facilities, and
the Municipal
Improvements as more fully depicted in the Wiltshire Subdivision Plan.
(x) “Rules and Regulations” means those Rules and Regulations that may be
promulgated by the Executive Board from• time to time governing the Lot Owners’
use and
enjoyment of the Common Facilities, Controlled Facilities and Limited Controlled
Facilities
pursuant to the provisions of this Declaration. The Rules and Regulations may.
provide greater
restrictions on the use and enjoyment of the Common Facilities, Controlled
Facilities or
Limited Controlled Facilities or any parts thereof than are provided in this
Declaration, but
such Rules and Regulations may not relax any restrictions on the Owners’
rights of use and
enjoyment of the Common Facilities, Controlled Facilities and Limited Controlled
Facilities
that are set forth in this Declaration.
(y) “Special Declarant Rights” means those rights reserved to Declarant in
this
Declaration or as otherwise permitted to be exercised by the Declarant pursuant
to the
provisions of the Act.
(z) “Township” means East Nottingham Township, Chester County, Pennsylvania,
or any successor municipality within which the Property is located.
(aa) “Wiltshire Subdivision Plan” means the final subdivision plan of the
Property
approved by the Township and recorded in the Office of the Recorder of Deeds in
and for
Chester County, Pennsylvania, dated December 9, 1996 (last revised June 26,
1998), and all
approved and recorded amendments or modifications thereof, and all accompanying
land
development and related plans.
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ARTICLE II- APPLICABILITY OF DECLARATION
CONSTRUCTION AND INTERPRETATION
2.01 Submission of Property. The Community contains common elements which
contain only stormwater management facilities and related devices, real estate
containing
signage, lighting, landscaping, gates, walls, fences and/or open space, and,
therefore, is
subject only to the following sections of the Act and its amendments: Sections
5102 through
5114, inclusive; Sections 5301 through 5320, inclusive; and Sections 5407, 5408,
5409 and
5411. Any reference to common elements as being Common Facilities, Controlled
Facilities
and Limited Controlled Facilities is not intended to nor shall it subject the
Property to any
additional requirements and/or provisions of the Act which are not already
applicable to the
Property. Declarant hereby submits the Property, together with the buildings and
improvements erected, or to be constructed thereon, and all easements, rights
and
appurtenances belonging thereto, to the terms, conditions and provisions of this
Declaration in
accordance with the applicable provisions of the Act. This Declaration shall be
applicable to
the entire Community and to all of the Lots and all of the Common Facilities,
Controlled
Facilities and Limited Controlled Facilities. All present and future Lot Owners
and the Lots,
and their respective tenants, subtenants, family members, guests, invitees,
permitees, agents,
servants, employees and any other persons occupying or using any Lot or Dwelling
shall be
bound by all the terms and conditions of this Declaration, the By-laws and any
Rules and
Regulations as may be promulgated by the Executive Board.
2.02 Number of Lots/Allocations. A maximum of 163 Lots may be created in the
Community. The boundaries of each of the Lots in the Community are identical to
the
boundaries of the Lots as depicted on the Wiltshire Subdivision Plan. There are
no Limited
Common Facilities in the Community as that term is defined in the Act.
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2.03 Special Declarant Rights to Designate Common Facilities. The Declarant
reserves the right to designate as a Common Facility, and does by this
Declaration so designate
as Common Facilities, the following: the Open Space; the Stormwater Management
Easement;
Detention Basins Nos. 1, 2, 3, 4, 5; Drainage Easement No. 1; Drainage Easement
No. 2
Drainage Easement No. 3; and Drainage Easement No. 4. Drainage Easement No. 5;
and
Drainage Easement No. 6. All such Common Facilities not required by the
Declaration Plan
to be improved or disturbed in any way from their natural state will become
Common Facilities
upon the recording of this Declaration. All other Common Facilities will become
Common
Facilities upon substantial completion of the required improvement, as required
by the
Wiltshire Subdivision Plan and the Township. Common Facilities will be
substantially
completed on or before conveyance of the last Lot. The Declarant will convey the
Common
Facilities to the Association upon substantial completion of all of the Common
Facilities, but
not later than the date of the conveyance by Declarant of the last Lot in the
Community owned
by Declarant, which obligation to convey will be binding upon the Declarant and
any successor
in interest of the Declarant in any portion of the Community, whether or not the
successor
succeeds to any Special Declarant Rights. The Common Facilities will be owned by
the
Declarant prior to such conveyance. No such conveyance shall occur until any
required
improvement, grading or disturbance in any way from the natural state of the
portion of the
Community to be conveyed has been completed, unless a third-party guarantee,
bond, escrow,
letter of credit or other mechanism assuring completion has been provided by the
Declarant,
which third-party mechanism shall not expire until completion of such
improvement or
disturbance. The Common Facilities will be conveyed by delivery of a fee simple
special
warranty deed to the Association, which will be recorded in the Office of the
Recorder of
Deeds in and for Chester County, Pennsylvania. No consideration shall be payable
by the
Association other than the Associations acceptance of such deed or deeds.
Maintenance and
operation of the Common Facilities will constitute the principal activity and
purpose of the
Association and virtually all the Association’s budget will be devoted
thereto.
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2.04 Special Declarant Right to Create Controlled Facilities. The Declarant
reserves
the right to designate as a Controlled Facility, and does by this Declaration so
designate as a
Controlled Facility, the following: the Entrance Signs and any associated
structures and
landscaping; the Split Rail Fence; and the Earthen Berm. The Declarant intends
to construct
Entrance Signs and associated structures and landscaping on Lots 1, 54, 68, 71
and within
Open Space III as shown on the Wiltshire Subdivision Plan, which includes, in
particular,
stone work, entrance gates and lighting fixtures on Lots 68 and 71. The
Declarant intends to
construct the Split Rail Fence along or within Lots 35, 36, 37, 38, 39, 40 and
41 as shown on
the Wiltshire Subdivision Plan. The Declarant intends to construct the Earthen
Berm along or
within Lots 108, 109, 110, 111, 112, 113, 114, 115, 116, 117 and Lots 84, 85,
86, 87, 88, 89
as shown on the Wiltshire Subdivision Plan. The Declarant will complete the
construction of
the Entrance Signs, the Split Rail Fence and the Earthen Berm before, at or in
connection with
the improvement of Dwellings upon each of the Lots on which the Entrance Signs,
Split Rail
Fence and/or Earthen Berm are located or as may otherwise be required by the
Township in
accordance with the approval of the Wiltshire Subdivision Plan, provided,
however, that
Declarant shall have the right to construct and/or complete the construction of
my Controlled
Facilities at any time. The Association shall maintain the Entrance Signs and
the associated
structures and landscaping, the Split Rail Fence and the Earthen Berm in such
manner and to
the extent that it deems necessary and appropriate, subject to any specific
requirements of the
Township. The cost of maintaining the Entrance Signs and associated structures
and
landscaping (including any costs incurred for the lighting of the Entrance Signs
located on Lots
68 and 71), the Split Rail Fence and the Earthen Berm shall be a Common Expense.
2.05 Special Declarant Right to Create Limited Controlled Facilities. The
Declarant
reserves the right to designate as a Limited Controlled Facility, and does by
this Declaration
designate the Seepage Beds as a Limited Controlled Facility under the Act. The
Declarant will
complete construction of the Seepage Beds at or in connection with the
improvement of
Dwellings upon each of the Lots on which the Seepage Beds are located or as may
otherwise
be required by the Township in accordance with the approved Wiltshire
Subdivision Plan,
provided, however, that all such Limited Controlled Facilities shall be
completed prior to the
conveyance of the last Lot out of the Community. The obligation to maintain the
Seepage
Beds shall be the responsibility of the Lot Owner on which each such Seepage Bed
is located.
The Association shall have the right, from time to time, to come upon the Lots
on which the
Seepage Beds are located, and if the same are found not be in working order, or
if the
Township specifically requires remedial action with respect to the Seepage Beds,
and in either
case the Lot Owner fails, within thirty (30) days of the date of notice from the
Association to
correct or repair any defective condition in the Seepage Beds, the Association
shall have the
right to come upon such Lot and take such remedial action or repairs as may be
necessary and
to assess the cost of such action upon the Lot Owner as a Limited Common
Expense.
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2.06 Special Declarant Rights with Respect to Municipal Improvements. Declarant
is, in connection with the approval of the Wiltshire Subdivision Plan, required
to construct
certain improvements which are to be offered for dedication to the Township or
to the Oxford
Area Sewer Authority. Those improvements to be dedicated to the Township consist
of the
interior streets of the Community, including Apple Tree Lane, Quill Court, Slate
Hill Drive,
Old Library Lane, Inkwell Court, Cornerstone Court, and Schoolview Lane
(collectively the
“Interior Streets”), all of which shall be constructed in accordance with
applicable Township
construction regulations at the expense of the Declarant and shall be conveyed
to the
Township. The Interior Streets also include the two unpaved areas identified as
“Future
Street/Water Line Right-of-Way” between Lot 107 and Open Space I and between
Lot 95 and
Lot 96, as shown on the Wiltshire Subdivision Plan, which will be available for
future street
and utility connections. The Declarant is required to post financial security
acceptable to the
Township in an amount sufficient to complete the construction of the Interior
Streets which
shall be offered for dedication to the Township. As noted above, nothing
contained in this
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U:\marina\Kim\decl3 amend&rest AC.doc
Declaration shall be construed in any way as binding the Township to accept
dedication of the
Municipal Improvements referred to herein. During the construction and build-out
of the
Community, responsibility for plowing snow on the Interior Streets shall be
borne by
Declarant. Those improvements to be dedicated to the Oxford Area Sewer Authority
(the
“Authority”) consist of the pump station and sanitary sewer lines (“Pump
Station and Sewer
Lines”), as shown on the Wiltshire Subdivision Plan, which shall be
constructed in conformity
with all applicable requirements of the Authority at the expense of the
Declarant. The Pump
Station shall be connected to an existing sewer main operated by the Authority
prior to the
conveyance of the first Lot out of the Community. Declarant shall post financial
security
acceptable to the Authority in an amount sufficient to assume the completion of
construction of
the Pump Station and Sewer Lines. It is anticipated that the Pump Station and
Sewer Lines and
appurtenances and all easements necessary therefore shall be dedicated to the
Authority. The
Interior Streets and Pump Station and Sewer Lines and appurtenances and all
easements
necessary therefore are sometimes referred to collectively as the “Municipal
Improvements”.
Public water shall be provided to the Community by the Chester Water Authority
by way of
the public water lines shown on the Wiltshire Subdivision Plan, which lines and
all easements
and other structures and facilities appurtenant thereto (collectively the “Water
Lines”) shall be
conveyed to, owned, maintained and operated by the Chester Water Authority. The
Water
Lines shall be constructed by the Declarant at the sole cost and expense of the
Declarant.
2.07 Special Declarant Rights to Create Easements Affecting Community. The
Declarant hereby reserves the right to create and establish such easements as
may be necessary
over, across, under and through the Community, the Common Facilities, the Open
Space and
the various Lots comprising the Community as may be necessary or appropriate for
the
development and build-out of the Community as more fully set forth in Articles
VI and vii
below.
2.08 Conflict with the Act. It is Declarant’s intention that this Declaration
comply in
all respects with the applicable provisions of the Act. Declarant hereby
reserves the right in
the event of any conflict or inconsistency between the terms of this Declaration
and the terms
of the applicable provisions of the Act or any omission of any requirement of
the Act, to
amend this Declaration to conform to the specific requirements of the Act.
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ARTICLE III - ASSOCIATION; MEMBERSHIP; ASSESSMENTS
3.01 Association.
(a) The Association shall be the governing body for and on behalf of all Lot
Owners, and shall have all duties, rights, privileges and responsibilities as
are set forth in this
Declaration, in the By-laws and in the Act. All rights, powers and duties that
are granted to
the Association pursuant to this Declaration or the By-laws of the Act shall be
exercised,
carried out and performed by and through the Executive Board, except when any
provision of
this Declaration, the By-laws or the Act requires that any such powers, rights,
duties or
privileges may be exercised or carried out only by Members. The Association
shall be
responsible for the maintenance, repair, replacement, management, operation and
administration of the Common Facilities, the Controlled Facilities and (except
as otherwise
provided herein) the Limited Controlled Facilities, including any and all
obligations relating to
the Common Facilities, Controlled Facilities and the Limited Controlled
Facilities established
in connection with the approval of the Wiltshire Subdivision Plan. In exercising
its obligations
with respect to the Controlled Facilities, the Association shall have the right,
from time to
time, to come upon the Lot or Lots upon which such Controlled Facilities are
located to
inspect, maintain and repair such Controlled Facilities and to assess the cost
thereof as a
Common Expense of the Association. The Seepage Beds on each individual Lot shall
be
maintained and repaired at the expense of each Lot Owner provided, however, that
the
Association shall have the right, from time to time, to enter upon and inspect
the condition and
state of repair and/or operating condition of the Seepage Beds on the various
Lots and, in the
event the Association determines that the Seepage Beds are in need of repair and
maintenance,
or if such determination has been made by the Township, the Association shall
have the right,
after first giving each Lot Owner thirty (30) days prior written notice, to
enter upon such Lot
or Lots and effect such repairs as the Association deems appropriate and to
assess the cost
thereof to the Lot or Lots so involved. The Association shall also have the
power and duty to
levy Assessments against all Lot Owners for the purpose of paying the Common
Expenses
incurred or to be incurred by the Association from time to time and to levy
special
Assessments against all or fewer than all of the Lot Owners for the purposes set
forth in this
Declaration.
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(b) The Association shall have the right, subject to any limitation set forth in
the By-laws, to delegate one or more of its duties hereunder to a manager or
agent or to other
persons, firms or corporations, provided that any contracts with any such
managers, agents or
other firms shall be for a term of not more than one (1) year and shall be
terminable without
further liability on the part of the Association upon not more than ninety (90)
days prior
written notice given by the Association. All other terms and conditions of such
agreement
shall be as determined by the Executive Board.
(c) The Association shall have the right and obligation to accept conveyance
to it of sole or common title to, or the right to use, the Open Space and the
Common Facilities,
and shall have the right and obligation to accept conveyance to it of any other
real and personal
property that the Association has the right or obligation to acquire or maintain
pursuant to the
terms of this Declaration. The Association shall have the right to acquire, own
and maintain
such other personal property as is necessary and appropriate in connection with
the
performance by the Association of its rights, duties, obligations and privileges
hereunder.
(d) Without limiting the general grant of authority and duties provided in this
Section 3.01, the Association shall, acting by and through the Executive Board,
have the
following rights, duties, obligations and privileges:
(1) To maintain and manage the Common Facilities, Controlled
Facilities and Limited Controlled Facilities;
14 U:\marina\Kim\decl3 amend&rest AC.doc
(2) To keep the Common Facilities and Controlled Facilities in good
condition and repair and to make any necessary repairs and replacements thereof
or thereto;
(3) To maintain the Entrance Signs and to install, maintain and
replace associated stone work, entrance gates, lighting fixtures, landscaping
and shrubbery,
and to collect any utility costs associated with the lighting of the Entrance
Signs and for this
purpose shall have the right, from time to time as the Association deems
appropriate, to enter
upon Lots 1, 54, 68 and 71 for such purposes;
(4) To purchase any insurance coverages or fidelity bonds required
or to be obtained for or on behalf of the Association hereunder;
(5) To collect fire hydrant rental fees plus any related administrative
fees as may be billed to the Association by the Township from time to time;
(6) To adopt operating and capital budgets of the Association with
respect to the Common Facilities, Controlled Facilities and Limited Controlled
Facilities, and
to make amendments thereto, as from time to time necessary;
(7) To compute, levy, assess and collect Assessments;
(8) To enforce the collection of delinquent Assessments by any one
or more methods set forth in this Declaration and to impose late payments and,
after providing
for notice and an opportunity to be heard, to levy reasonable fines for
violations of this
Declaration, the By-laws or the Rules and Regulations;
(9) To enter into contracts or agreements with third parties as may be
necessary or appropriate from time to time in connection with the performance of
the
Association’s rights, duties and obligations hereunder, and to pay for goods
and services
furnished to the Association pursuant to such contracts or agreements;
(10) To adopt, amend and repeal, from time to time, the By-laws and
such Rules and Regulations as the Executive Board may deem necessary or
appropriate for the
regulation of the use and enjoyment of the Common Facilities;
15 U:\marina\Kim\decl3 amend&rest AC.doc
(11) To enforce by one or more remedies available at law or in equity
any and all of the provisions of this Declaration;
(12) To grant easements, with an 80% affirmative vote of all
Members, to third parties over, across or under the Open Space (if, as and when
acquired) or
any portions thereof, as may be necessary from time to time for the benefit of
the Association
or any of its Members, including but not limited to easements in favor of public
or private
utility or service companies furnishing electric, gas, water, sanitary sewer,
telephone, open
video systems, cable internet access, or cable television services;
(13) To prosecute or defend claims, suits, causes of action by or
against the Association and to litigate, arbitrate, settle, compromise and/or
release any such
claims;
(14) To impose fees• for the preparation and recording of amendments
to the Declaration and a charge for resale certificates;
(15) To provide for indemnification of the officers of the Association
and members of the Executive Board and to maintain directors and officers
liability insurance
(including the maintenance of directors’ and officers’ liability insurance
for so long as a
Director and/or Officer appointed by the Declarant remains on the Executive
Board);
(16) To dedicate and convey with an 80% affirmative vote of the
Members the Open Space (if, as and when acquired) to the Township;
(17) To cause additional improvements to be made as part of the
Controlled Facilities; and
(18) To do all things necessary or expedient in order to carry out all
the powers, rights, privileges, duties and functions of the Association as are
set forth herein.
(e) No judicial or administrative proceedings shall be commenced or
prosecuted by the Association unless approved by Lot Owners entitled to cast at
least sixty
(60%) percent of the votes cast at a duly constituted meeting of Members. The
foregoing shall
not apply to actions brought by the Association to enforce the provisions of
this Declaration,
the imposition and collection of Assessments, proceedings involving challenges
to real property
taxes, or counterclaims brought by the Association in proceedings instituted
against it, which
may be pursued if approved by the Executive Board.
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amend&rest AC.doc
3.02 Association Membership; Voting
(a) Every Lot Owner, by acceptance of the deed to his Lot, shall become a
Member of the Association and shall become liable to pay all Assessments that
may be levied
by the Association against him with respect to his Lot or Dwelling, and any
costs and expenses
for which the Lot Owner may become liable pursuant to this Declaration, the
By-laws or the
Rules and Regulations. Membership in the Association shall not be severable from
ownership
of a Lot, and membership in the Association shall be transferred automatically
upon the
conveyance of title to a Lot. Membership in the Association shall, except as
otherwise
hereinafter provided, be limited to the Lot Owners.
(b) Every Lot Owner, as a Member of the Association, shall be entitled to
enjoy all of the rights and shall be subject to all of the obligations of
membership in the
Association, subject to the right of the Executive Board to suspend any such
rights or
privileges, including voting rights, in the event any Member fails to pay
Assessments levied
against him, his Lot or Dwelling. Each Owner shall be entitled to one (1) vote
for each Lot
within the Community owned by him or it. In the event that a Lot is owned by
more than one
Person, such Owners, taken together, shall have only one (1) vote with respect
to such Lot.
(c) A Member shall be entitled to vote at any annual or special meeting of
Members of the Association only if such Member shall have fully paid all
Assessments made
or levied against him or his Lot by the Association, as hereinafter set forth,
together with all
interest, costs of collection, attorneys’ fees, penalties and other expenses,
if any, properly
chargeable to him or against his Lot, at least five (5) days prior to the date
fixed for the annual
or special meeting, as the case may be. In the event that any such Assessments
are payable in
installments, then all delinquent installments shall be paid at least five (5)
days prior to the date
fixed for such meeting.
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(d) In the event that any Dwelling is leased to a tenant, such tenant shall not
be entitled to vote as a Member in the Association (unless given a proxy by the
Owner
thereof).
(e) In the event that a Lot is owned by more than one Owner, and if there is
a conflict between the Owners as to how such vote should be cast on any matter,
such vote
shall be counted for purposes of determining the presence of a quorum at any
annual or special
meeting of Members, but otherwise the conflicting votes of the Owners of such
Lot with
respect to a particular matter on which the Members are entitled to vote shall
be deemed to
cancel each other and, therefore, shall not be counted. The voting rights of a
Member, where
the Lot is owned by a corporation, partnership or other entity, shall be
exercised by the
individual designated from time to time by the Owner in a Written instrument
provided to the
Secretary of the Association, subject to the provisions of this Declaration and
the By-laws.
3.03 Executive Board.
(a) Subject to the other provisions of this Declaration and of the By-laws,
the Executive Board shall have the full power and authority to act on behalf of
the Association.
The initial Executive Board shall consist of three (3) directors, who shall be
appointed,
removed and replaced from time to time by the Declarant without the necessity of
obtaining
resignations, and without the necessity of holding an actual meeting or vote to
appoint such
Board Members. Directors appointed by the Declarant shall be replaced with
Directors elected
by the Members in accordance with subparagraph (c) below.
(b) The Executive Board may not act on behalf of the Association to amend
this Declaration, terminate the Community, elect members of the Executive Board
or
determine the qualifications, powers and duties or terms of office of the
Executive Board
members, but the Executive Board may fill vacancies in its membership for the
unexpired
portion of any term. The Executive Board shall deliver to all Lot Owners copies
of each
budget approved by the Executive Board and notice of any capital expenditure
approved by the
Executive Board promptly after such approval. The Lot Owners may, by an
affirmative vote
of a majority of the Members, reject any budget or capital expenditure approved
by the
Executive Board within thirty (30) days after approval in accordance with
Section 3. 11(d).
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(c) The period extending from the date of the first conveyance of a Lot to a
person other than Declarant to the earlier of (i) five (5) years; or (ii) sixty
(60) days after
conveyance of seventy-five (75%) percent of the Lots to Owners other than
Declarant; or (iii)
two (2) years after Declarant has ceased to offer Lots for sale in the ordinary
course of
business, shall be referred to herein as the ‘Declarant Control Period’.
During the Declarant
Control Period, the Declarant may appoint and remove officers and members of the
Executive
Board. Not later than sixty (60) days after the conveyance of twenty-five (25%)
percent of the
Lots to Lot Owners other than Declarant, at least one (1) member and not less
than twenty-five
(25%) percent of the members of the Executive Board shall be elected by Lot
Owners other
than Declarant. Not later than sixty (60) days after conveyance of fifty (50%)
percent of the
Lots which may be created to Lot Owners other than Declarant, not less than
thirty-three
(33%) percent of the Members of the Executive Board shall be elected by Lot
Owners other
than Declarant. At the termination of the Declarant Control Period the Lot
Owners shall elect
an Executive Board of at least three (3) members of which at least a majority
shall be Lot
Owners. Notwithstanding any provision of this Declaration or By Laws to the
contrary, the
Lot Owners, by a two-thirds (2/3) vote of all persons present and entitled to
vote at any
meeting of the Lot Owners at which a quorum is present, may remove any member of
the
Executive Board with or without cause, other than the members appointed by
Declarant.
(d) After the expiration of the Declarant Control Period, all of the members
of the Executive Board shall be elected by the Members at the annual meeting of
Members
next following the expiration of the Declarant Control Period. For purposes of
this
subparagraph, the percentage of Lots conveyed by the Declarant shall be based
upon a total
number of Lots within the Property.
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3.04 Assessment Obligations of Owners.
(a) Each Owner of a Lot shall pay to the Association all Assessments that
may be levied by the Association against his Lot or against him with respect to
his Lot,
including, but not limited to, all regular Assessments made due and payable on a
monthly or
other periodic basis as determined from time to time by the Executive Board
based upon the
budget of the Association, all special Assessments that may be levied and
assessed from time to
time in accordance with the terms of this Declaration and any interest charges,
attorneys’ fees,
late fees, fines or penalties that may be levied by the Executive Board for
non-payment of
Assessments or for non-compliance with the terms and conditions of this
Declaration, By-laws
and/or any Rules and Regulations promulgated by the Board of Directors. Each Lot
will be
allocated .614% of the Association’s Common Expenses. No fine or penalty may
be levied by
the Association without first having given the Lot Owner against whom such fine
or penalty is
to be assessed notice and an opportunity to be heard on the issue.
(b) Any regular and special Assessments and supplemental Assessments,
together with interest thereon, fines, late charges, costs of collection and
attorneys’ fees shall
be a charge against the Lot, and shall be a continuing lien upon the Lot against
which such
Assessment is made, from time of Assessment (notwithstanding that such
Assessment may be
payable at a later time or in two or more installments) having such lien
priorities and being
subject to divestiture in such manner as is provided in the Act as the same may
be amended
from time to time.
3.05 Non-Refundable Contribution by First Purchasers. The Declarant shall assess
to
each purchaser of a Lot purchased from the Declarant a one-time non-refundable
Assessment
in the amount of $150.00. The Declarant shall deposit the Assessment funds so
collected into
an account which amount may be used from time to time for any purposes deemed
appropriate
or desirable by the Executive Board. Such contributions shall be in addition to,
and shall not
be in lieu of or applied against the Assessments levied or assessed against such
Lot or
Dwelling, or any Assessments that have been levied or assessed against such Lot
or Dwelling.
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3.06 Damages. Each Owner shall be obligated to reimburse and indemnify the
Association for any expenses, costs or damages incurred by the Association, or
with respect to
any Common Facilities or Controlled Facilities damaged or destroyed, by the act,
omission or
negligence of such Owner or his tenants, agents, guests, family members or
licensees, upon
demand by the Association.
3.07 Payment. Except as otherwise provided in this Declaration, the time for
payment of Assessments by each Owner shall be determined by the Executive Board.
3.08 Non-Payment; Lien.
(a) In the event that any Assessment or installment thereof is not paid within
fifteen (15) days after the due date thereof, interest thereon shall accrue from
the due date at
the rate of fifteen (15%) percent per annum. The Executive Board shall have the
right to levy
the costs of collection (including attorneys fees) against an Owner who is
delinquent in the
payment of any Assessment or installment thereof. The Executive Board shall also
have the
right to charge a delinquency Assessment, as established from time to time,
against any Owner
who is delinquent in the payment of Assessments for a period exceeding fifteen
(15) days from
the due date, such delinquency Assessment not to exceed ten (10%) percent of the
overdue
sum. In the event that an Owner shall be delinquent in the payment of any
Assessments or
installments thereof for more than thirty (30) days after the due date thereof,
the Executive
Board shall have the right to accelerate all future installments of such
Assessments with respect
to the delinquent Owner.
(b) If any Assessment or installment thereof is not paid within thirty (30)
days after its due date, or in the event that all delinquencies are not
satisfied at least five (5)
days prior to any annual or special meeting of Members, the Executive Board
shall have the
right to suspend the rights of the delinquent Owner to use and enjoy the Common
Facilities and
to suspend the voting rights and other privileges of such Member.
(c) The Association shall, upon the written request of a Lot Owner, provide
such Lot Owner with a recordable statement setting forth the amount of unpaid
assessments
currently levied upon such Lot Owner’s Unit, including any credits or surplus
in favor of such
Lot. The statement must be furnished within ten (10) business days after receipt
of such Lot
Owner’s request for such a statement.
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3.09 Collection. Assessments and other costs and expenses which may be payable
by
any Owner may be recovered by a lawsuit brought by the Executive Board on behalf
of the
Association and/or the Owners, in any action at law or in equity against the
Owner personally
obligated to pay the same and the Association shall be entitled to seek and
pursue any and all
rights and remedies as may be available at law or in equity. The Association may
recover
from the delinquent Owner all attorneys’ fees and other costs of collection as
well as late
charges, interest and fines levied by the Association with respect to unpaid and
delinquent
Assessments, and the same. shall become due on demand by the Association.
3.10 Collection Upon Sale of a Lot..
(a) In the event that title to a Lot is transferred in connection with a sale
pursuant to execution on any lien against the Lot, the Executive Board may give
notice in
writing of any unpaid Assessments which have not been reduced to a lien, and
such unpaid
Assessments of which the Sheriff has notice shall be paid out of the proceeds of
such sale after
payment of other claims required by law to be paid first, but prior to any
distribution of
proceeds to the Owner of such Lot. If an Eligible Mortgagee or other purchaser
acquires title
to a Lot pursuant to foreclosure of a first mortgage, or by deed in lieu of
foreclosure, the
transferee shall not be liable for unpaid Assessments accrued through the date
of such transfer.
(b) In the event of a resale of a Lot by a Lot Owner other than the
Declarant, the Lot Owner shall furnish to a purchaser before execution of any
contract for sale
of a Lot, a copy of the Declaration, the By-laws, the Rules and Regulations and
a resale
certificate as required under Section 5407 of the Act (the “Resale Certificate”).
(c) The Lot Owner shall notify the Association of his intention to sell the
Lot so that the Association may prepare the Resale Certificate. Within ten (10)
days of the
receipt of such notification, the Association shall prepare the Resale
Certificate which shall
contain all of the information required under Section 5407 of the Act, which
Resale Certificate
shall be mailed to the place designated by the Lot Owner. No conveyance shall
discharge the
personal liability of the Lot Owner for unpaid assessment of charges whether or
not shown on
such certificate. A reasonable fee shall be established by the Association from
time to time for
the cost of preparation of such certificate and shall be paid at the time of the
request for such
certificate. The Resale Certificate shall be signed by an officer of the
Association or by an
employee of the Association’s management company. A properly executed Resale
Certificate
of the Association as to the status of assessments on a Lot shall be binding
upon the
Association as to any purchaser or mortgagee relying thereon in good faith as of
the date of its
issuance, hut shall not relieve the Lot Owner of personal liability for any
unpaid assessments.
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3.11 Basis and Computation of Regular Assessments.
(a) The Executive Board, of the Association shall, at least sixty (60) days
prior to each fiscal year of the Association, adopt a budget of the Association
for such fiscal
year setting forth estimated Common Expenses of the Association and other costs,
expenses,
liabilities and reserves which the Executive Board may deem appropriate.
Assessments for the
fiscal year to which such budget relates shall be computed based on the total
Common
Expenses anticipated for such fiscal year as set forth in the budget, in excess
of any surplus
resulting from the excess of Assessments levied from a prior year or years over
Common
Expenses actually incurred in such prior year or years.
(b) The budget of the Association based on which regular Assessments are
made may be changed from time to time by the vote of a majority of the Executive
Board to
reflect any substantial change in the Common Expenses incurred or expected to be
incurred by
the Association for such fiscal year, and the Executive Board shall have the
power to increase
or decrease the Assessments based on such changes in the budget, such increase
or decrease to
be effective not earlier than thirty (30) days after notice thereof shall have
been given by the
treasurer to the Owners.
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(c) The Board of Directors shall levy assessments at least annually and cause
notice of annual Assessments due to be sent to all Owners after the Assessment
for any fiscal
year has been determined or redetermined in accordance with this Declaration.
(d) Promptly after adoption of the budget for a fiscal year, the Executive
Board shall cause notice of the Assessment and a copy of the budget to be mailed
to each
Owner. Such budget shall become effective unless disapproved within thirty (30)
days by
majority vote of the Members of the Association at a duly called and constituted
meeting of the
Association. Unless a meeting is requested by the Members, as provided in the
By-laws, the
budget and Assessment shall take effect without a meeting of the Members
effective as of the
first day of the fiscal year of the Association to which such budget relates. In
the event that
such budget is disapproved by the Members, or in the event that the Executive
Board fails for
any reason to adopt a budget for any fiscal year, then the regular Assessment
for the
immediately preceding fiscal year shall be deemed to continue in effect until a
budget has been
adopted by the Executive Board (and not disapproved by the Members) on the basis
of which a
new regular Assessment may be determined.
3.12 Commencement of Assessments~ The Assessments provided for herein shall
commence as to each Lot on the first day of the first calendar month following
the date of
conveyance of the Lot by the Declarant, or the effective date of the first
budget, whichever is
later.
ARTICLE IV - INSURANCE
4.01 General Right and Duty to Purchase Insurance. The Executive Board shall
obtain or cause to be obtained comprehensive public liability and property
damage insurance
covering liability or loss or injury (including death) to Persons and loss or
damage to property,
in such amounts and against such risks, and from insurance companies, as the
Executive Board
shall determine, provided that in no event shall such comprehensive public
liability insurance
be less than One Million Dollars ($1,000,000.00) for bodily injury or death
arising from a
single occurrence. Such policies shall have such deductibles or co-payments as
the Executive
Board may determine, in its discretion. Such insurance shall protect the Owners
and the
Association against liability arising out of the use of, or the loss, damages or
injuries occurring
on the Common Facilities and any Controlled Facilities located on any Lots. The
above
referenced minimum insurance amount may be reduced to such amount as the
Executive Board
shall determine is appropriate in the absence of the Association having any
rights or interests in
Open Space, so long as such minimum insurance amount (or such increased amount
as the
Board of Directors shall determine is appropriate) is maintained in the event
the Association
does acquire any rights and interests in Open Space.
24 U:\rnarina\Kim\decl3 amend&rest AC.doc
4.02 Association Property Insurance. The Executive Board shall obtain all risk
hazard insurance policies covering damage to the Common Facilities and the
Controlled
Facilities, including, if applicable, flood insurance coverage, such insurance
to cover any
fixtures, improvements or equipment constructed or to be constructed on the
Common
Facilities, or which form part of the Controlled Facilities. To the extent
available, such
insurance shall be with “replacement cost” coverage.
4.03 Insurance Obligations of Owners. Each Owner shall be individually and
solely
responsible for maintaining hazard, fire, flood and liability insurance with
respect to his Lot
and Dwelling, and against losses, damages or injuries occurring on his Lot. The
Executive
Board shall have the right to promulgate standards which shall be required to be
met by each
Owner with respect to property and casualty and liability insurance coverages to
be obtained
with respect to the Dwellings to be located on the Lots. The Association shall
have no
insurance responsibility with respect to any Lot, Dwelling or other improvements
located on
any Lot (except for Common Facilities or Controlled Facilities located on such
Lots). Each
Owner shall carry blanket all-risk casualty insurance on the Dwelling and other
structures
located on his Lot, and each Owner further covenants and agrees that in the
event of the total
destruction of his Dwelling, the Owner shall proceed promptly to repair, replace
or to
reconstruct the damaged Dwelling in a manner consistent with the original
construction
thereof. Any portion of the Community for which insurance is required to be
maintained by
the Lot Owner by the Act or in the Declaration and which is damaged or destroyed
shall he
required to be repaired or replaced promptly by the Lot Owner unless:
25 U:\rnarina\Kim\decl3 amend&rest AC.doc
(1) the Community is terminated;
(2) repair or replacement would be illegal under any State or local health or
safety
statute or ordinance; or
(3) Eighty (80%) percent of all of the Lot Owners, including any Owner of a Lot
which will not be rebuilt, vote to not rebuild.
The Lot Owner shall pay any costs of repair or reconstruction not covered by
insurance
proceeds.
4.04 Policy Provisions. All policies purchased by the Association shall be for
the
benefit of the Association, and the costs and premiums thereof, and any
deductibles or co-
payments thereunder, shall be deemed to be Common Expenses of the Association.
Such
insurance shall be purchased for the benefit of the Association, the Executive
Board, the
Declarant, the Owners and all Eligible Mortgages, as their interests may appear,
provided that
it shall be sufficient if the named insured on such policies is the Association.
Endorsements in
favor of mortgagees holding mortgages on any Dwellings may be issued upon
request, any
expenses thereof to be borne by the Owners requesting such endorsements. The
Association
shall maintain any insurance coverages that may be required under applicable
law. The
Executive Board shall have the right to increase insurance coverages and obtain
additional
insurance coverages not specifically stated herein as the Executive Board may
from time to
time determine, in its discretion, and the premiums for such additional or
different insurance
coverages shall be deemed to be Common Expenses of the Association. Policies of
insurance
shall be deposited with and shall be maintained by the Executive Board.
4.05 Other Insurance Coverages. The Executive Board shall also have the right to
obtain other insurance coverages and endorsements which may be applicable to the
Common
Facilities and the Controlled Facilities, all premiums for which shall be Common
Expenses,
including, but not limited to, workers’ compensation insurance, directors’
and officers’ liability
insurance, fidelity bonds with respect to employees, agents or managers hired by
the
Association, and any and all other insurance coverage as the Executive Board may
from time
to tune deem necessary or appropriate. The Executive Board shall maintain
directors’ and
officers’ liability insurance for so long as a Director and/or Officer
appointed by the Declarant
remains on the Executive Board.
26 U:\marina\Kim\decl3 amend&rest AC.doc
4.06 Powers of Board of Directors. The Executive Board shall have full and
exclusive power and authority to negotiate, adjust and compromise all claims for
insurance
coverages, and to execute and deliver releases therefore upon payment of the
agreed settlement
for such claims.
ARTICLE V - BUILDING AND USE RESTRICTIONS
5.01 Business Uses. No industrial, manufacturing or commercial activity, trade
or
business shall be conducted on the Property or on or about any of the Lots, or
in any
Dwellings or other buildings or improvements now or hereafter located on the
Property or any
of the Lots, nor shall any commercial, industrial or manufacturing structure,
building or
facility be constructed on the Property or any of the Lots. No mining, quarrying
or removal of
gravel, soil, rock or other materials shall be conducted on the Property or any
of the Lots,
except for excavation and removal of soil necessary in connection with the
normal construction
and maintenance of buildings, driveways, landscaping and appurtenant residential
improvements on the Lots.
5.02 Subdivision or Partition. Once a Lot has been conveyed by the Declarant,
such
Lot may not be further subdivided or partitioned, directly or indirectly.
Declarant may, from
time to time, relocate boundaries between Lots owned by the Declarant by an
appropriate
amendment to or revision of the Wiltshire Subdivision Plan, as Declarant deems
appropriate,
in Declarant’s sole and absolute discretion, subject to the required approvals
by the Township.
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amend&rest AC.doc
5.03 Residential Use. Except as otherwise expressly provided herein, the Lots
and
Dwellings shall be used solely and exclusively for residential purposes. No more
than one
Dwelling shall be located on any Lot. No other building, including any garage or
other
outbuilding, may be used or occupied, temporarily or permanently, as a
residence.
5.04 Above-Ground Utilities. No above-ground conduits, pipelines, electric,
telephone, cable television, radio or other utility transmission line or antenna
shall be installed
on any Lot or on the exterior of any Dwelling. Satellite dishes exceeding
eighteen (18”) inches
in diameter or other free-standing (or roof or chimney mounted) antenna or
reception devices
shall not be constructed or erected on any Lot or Dwelling.
5.05 Animals. No Lot or any building or improvement located thereon shall be
used
for stabling, housing, raising, breeding, boarding or keeping one or more
horses, cattle, hogs,
goats, sheep, fowl, birds or other animals or livestock of any nature for
personal or
commercial purposes (excepting only personal domestic household pets, limited to
no more
than two (2) dogs and two (2) cats). Notwithstanding the foregoing, Declarant,
or the
Architectural Control Committee when it succeeds Declarant, shall have the right
to permit an
Owner of a Lot to maintain more than two (2) personal, domestic dogs or more
than two (2)
personal, domestic cats at any one time if the Declarant, or the Architectural
Control
Committee, as the case may be, is, in its sole discretion, satisfied that the
Owner of such Lot
has made proper arrangements for the care and maintenance of such additional
animals and so
long as such additional animals on the subject Lot do not constitute an
unreasonable
disturbance or annoyance to owners of neighboring or nearby Lots. An Owner of
Lot upon
which a domestic cat and/or dog is maintained shall also make proper
arrangements for the
control and maintenance of the domestic cat and/or dog while outside the Owner’s
Lot but
within the Property, which maintenance shall include the clean-up of any animal
wastes left
upon the Property by such domestic cat and/or dog.
5.06 Outdoor Storage/Vehicles. Outdoor storage of appliances, lumber, wood or
building materials shall be forbidden except during the performance of any
permitted
construction activities upon the Lot. No commercial trucks or vehicles,
all terrain vehicle,
boat, boat trailer, or other trailer, motor home, recreational vehicle nor any
unlicensed motor
vehicle shall be kept or stored on any Lot, unless it is completely enclosed
within a garage or
other outbuilding permitted hereunder or is otherwise hidden or screened from
view in a
manner deemed acceptable by the Executive Board, except in connection with the
immediate
maintenance, cleaning, repair or transportation thereof. No maintenance work
shall be done to
any vehicle located on any Lot or any portion of the Property which will render
that vehicle
immobile for longer than twenty-four (24) hours. No major engine repairs and/or
drivetrain
replacements shall be performed on any vehicle located on any Lot or any portion
of the
Property. The foregoing shall not be deemed to prohibit the outdoor storage of
firewood
provided that such firewood is neatly stacked to a height not more than four (4)
feet from the
ground level, and such firewood is located to the rear of a Dwelling so as to
screen it as much
as possible from view.
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5.07 Debris. No storage, depositing, dumping, burial, burning or abandonment of
any solid waste, debris, trash or refuse of any nature shall be permitted,
except when such
trash or debris is left outdoors for not more than twenty-four (24) hours for
trash collection
purposes, in which case such trash or refuse shall be kept in enclosed
containers or approved
recycling bins or containers. Such containers shall be removed promptly after
the contents
thereof have been collected.
5.08 Clothes Lines. No temporary or permanent clothes line, clothes drying rack
or
similar structure shall be permitted nor shall the Owners or occupants of any
Dwelling or Lot
dry or hang clothes, linens, sheets, towels or other similar items outside for
any purpose
whatsoever.
5.09 Out Buildings: Recreational Equipment: Pools. Except for attached or
detached
private garages constructed by the Declarant for the sole and exclusive personal
and non-
commercial use of the Owner of a Lot, no outbuildings or other enclosures shall
be constructed
on any Lot except with the prior written consent of the Declarant. However, one
storage shed
hall be permitted on each Lot, provided that the plans and specifications for
such shed shall
have been submitted to and approved by the Declarant. Children’s recreational
equipment may
be erected on a Lot provided that such equipment is constructed of unpainted
wood (or wood
treated with colorless stain or preservative). No portable basketball courts,
backboards nor
any other portable game or sporting device shall be stored, erected, constructed
or maintained
in the street or front yard of any lot. No skateboard, in-line skate or bicycle
ramps shall be
constructed, built, stored or erected upon any Lot or any portion of the
Property. No above-
ground or above-grade swimming pool shall be permitted on any Lot. One in-ground
swimming pool may be constructed on each Lot, provided that such pool shall be
surrounded
by appropriate fencing for the protection of unattended children, and the plans
for such pools
shall be subject to review and approval by the Declarant and the Association.
29 U:\rnarina\Kim\decl3 amend&rest AC.doc
5.10 Flood Plain and Wetlands and related Stormwater Management Facilities. No
activities, uses or improvements (including invisible fencing) shall be
conducted, constructed
or maintained on any Lot which would be detrimental or adverse to or which may
interfere
with any erosion control, storm water control or soil conservation facilities or
improvements
located on such Lot (including, but not limited to, storm water management
basins, drainage
easements, drainage swales and the like). No Owner or occupant of any Lot shall
disturb, or
construct or maintain any improvements, or conduct any activities on any area
which
constitutes “wetlands under applicable federal and state laws and regulations
which may be in
violation of applicable restrictions on such disturbance, construction or use.
5.11 Fencing. No fencing (other than the Split Rail Fence) shall be permitted on
any
Lot except fencing which satisfies all of the following requirements:
(a) Such fencing is located in the rear of a Lot with no part thereof
extending to the front of the Lot beyond the back wall of the Dwelling erected
on such Lot;
(b) Such fencing shall not be more than four (4) feet in height;
(c) Such fencing shall be constructed of wood post and rail, split rail or
other natural materials approved by the Declarant; and
30 U:\rnarina\Kim\decl3 amend&rest AC.doc
(d) Such fencing shall not interfere with or impair any easement created or
reserved pursuant to this Declaration or the Plan.
Such permitted fencing may include painted wire or mesh fencing which is
affixed to and located outside such wooden fencing.
5.12 Exterior Changes/Additions to Dwelling and Outbuildings. No exterior
additions, modifications or alterations of any Dwelling, garage, shed or other
structure
permitted hereunder shall be constructed unless the plans, specifications and
elevations for
such addition, alteration, improvement or structure shall have been submitted to
and approved
in writing by the Declarant.
If any Dwelling, garage or other permitted outbuilding is partially or entirely
destroyed by fire, storm or other casualty, then any Dwelling, garage or
outbuilding, as the
case may be, shall be constructed, replaced or reconstructed in such manner as
may be
approved in writing by the Declarant. Any, new structure (including mailboxes),
used as a
replacement to a structure which has been damaged, destroyed or razed shall be
substantially
the same architectural style and design as the structure which it is replacing,
unless otherwise
approved in writing by the Declarant.
5.13 Trees/Landscaping/Entrance Signs and associated landscaping/structures. No
trees shall be removed, except for diseased or dead trees or trees needing to be
removed to
promote the growth of other trees or for safety reasons, unless otherwise
approved by the
Declarant. Lot Owners shall maintain street trees located on their individual
Lot. The Owners
of Lots 1, 54, 68 and 71 shall not alter, replace, damage, remove or otherwise
interfere with
the Entrance Signs and associated landscaping and/or structures upon such Owner’s
Lot, unless
approved by the Declarant or the Architectural Control Committee as it succeeds
Declarant.
5.14 Appearance; Nuisances. No portion of any Dwelling or Lot shall be used in
whole or in part for the storage of any property or thing that will cause it to
appear to be in an
unclean or untidy condition or that will be obnoxious to the eye. No noxious or
offensive
activity shall be carried on upon any portion of the Property, nor shall
anything be done
thereon tending to cause annoyance or nuisance to any person using any portion
of the
Property. It shall be the responsibility of each Owner to prevent the
development of any
unclean, unhealthy, unsightly or unkempt condition of his Lot and Dwelling.
31 U:\rnarina\Kim\decl3 amend&rest AC.doc
5.15 Architectural Approval.
(a) When any provision of this Declaration requires the approval of the
Declarant prior to or in connection with the construction, reconstruction,
alteration or
modification of any Dwelling, garage, outbuilding, fence or other improvement on
any Lot,
the Person proposing such improvements shall submit to the Declarant appropriate
plans,
specifications and elevations depicting the style, size and height of the
proposed improvement,
the exterior materials and colors to be used in connection therewith (including
roofing
materials) and the proposed location thereof on the Lot.
(b) The Declarant shall have the discretion to disapprove any proposed
improvements, or alterations or modifications to existing improvements, which
the Declarant,
in its sole and absolute discretion, determines are undesirable based upon the
nature, size, style
and colors of other Dwellings, garage and other improvements located within the
Community,
the proximity of the proposed improvements to neighboring Dwellings and the
general
architectural and aesthetic compatibility of the proposed improvement,
structure, alteration or
modification with other similar structures and improvements constructed or
planned for
construction on the other Lots within the Community. The Declarant may also
consider the
visual impact that such proposed improvements, alterations, modifications or
structures may
have on the Owners or occupants of neighboring or nearby Dwellings within the
Community.
(c) The Owner or occupant of any Lot proposing any such improvement,
structure, fence, alteration or modification shall endeavor to maximize the
aesthetic appeal
thereof and minimize the negative visual impact thereof from Dwellings on
adjacent or nearby
Lots within the Community, and shall endeavor to minimize the cutting and
removal of trees
and the disturbance of other natural features of the Lot. All plans submitted to
the Declarant
for review may be retained by the Declarant regardless of whether the proposed
improvement
has been approved or disapproved.
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(d) As of the date on which the Declarant Control Period expires, all rights
of approval reserved unto the Declarant pursuant to this Article V shall be
exercisable by the
Executive Board, provided however, that Declarant shall not be required to
obtain any
approvals from the Association, the Executive Board or the Architectural Control
Committee
relating to the Dwellings or associated structures upon Lots remaining to be
approved as of the
last day of the Declarant Control Period. The Executive Board shall be entitled
to appoint
from among the Members of the Board or the Association not less than three (3)
nor more than
five (5) individuals to serve as an Architectural Control Committee, and the
Executive Board
shall have the authority to delegate its rights under this Article V to such
Architectural Control
Committee, subject always to the right of the Executive Board to approve or
disapprove the
action of such Committee.
5.16 Liability for Approval or Disapproval. Neither the Declarant, the
Association,
the Executive Board nor any officer of the Association shall be liable, in
damages or
otherwise, to anyone in connection with the approval or disapproval of any plan
or request for
the construction, reconstruction, alteration, modification or addition of any
improvement or
structure, or for the consequences of such approval or disapproval. Neither the
Declarant nor
the Association shall be responsible for determining the safety or structural
soundness of any
proposed Dwelling, building or improvement or the compliance thereof or of the
plans and
specifications relating thereto with applicable laws, regulations, ordinances
and building codes.
5. 17 Declarant’s Right to Maintain Models., Offices. Etc. Notwithstanding any
provision of this Declaration to the contrary, while Declarant owns any part of
the Property,
Declarant shall be entitled to maintain one or more model homes, sales offices
and construction
offices (including mobile offices) and to maintain and keep on portions of the
Property,
including in the Open Space, owned by Declarant, construction equipment,
vehicles, lumber
and other building materials as may be necessary from time to time in connection
with the
development of the Property, the construction of the Municipal Improvements,
Water Lines,
Dwellings, Common Facilities, Controlled Facilities and Limited Controlled
Facilities and
appurtenant improvements, and the installation of stormwater management and
erosion control
facilities, utilities and similar public improvements. The number, size,
location and relocation
of any such structures shall be as Declarant from time to time determines.
Declarant shall
have the right to remove all such structures at or before the time the last Lot
is sold by
Declarant.
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5.18 Other Declarant Rights. Notwithstanding any provision of this Declaration
to
the contrary, Declarant reserves the right at any time, in Declarant’s sole
discretion, to change
the floor plans, exterior elevation, building materials and general appearance
or architectural
style of Dwellings and other improvements that may be placed or constructed on
any Lot or
Lots owned by the Declarant.
5.19 Leases. Any Owner may lease his or her Dwelling for residential purposes.
All
tenants of the Dwelling shall be obligated to comply with all terms and
conditions of this
Declaration, the By-laws and the Rules and Regulations relating to the use,
enjoyment and
occupancy of Lots, Dwellings and the Common Facilities and Controlled
Facilities, whether or
not such obligation shall be set forth in such lease. All leases shall be in
writing, and upon
execution thereof, the Owner leasing such Dwelling shall deliver a true and
correct copy of the
executed lease to the secretary of the Association. Any Owner may require his
tenant to pay
either to the Owner or directly to the Association all or a portion of any
Assessments, that may
be levied with respect to such Owner’s Lot or Dwelling; provided, however,
that the Owner
leasing such Dwelling shall remain primarily and directly liable to the
Association for the
payment of all such Assessments. If the tenant assumes responsibility for paying
any
Assessments or portions thereof pursuant to such Tenants lease, the Association
shall have the
right to collect such Assessments from the tenant directly, and the Owner shall
be jointly and
severally liable for payment of such Assessments to the Association. The
Association shall not
be obligated to attempt to collect unpaid Assessments from any tenant who has
assumed the
obligation to pay any Assessments before proceeding to collect such unpaid
Assessments from
the Owner of such Dwelling.
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5.20 For Sale Si2ns. No real estate “for sale” signs or “for rent” signs
of any type or
size shall be displayed on any Lot at any time during which Declarant owns at
least one (1)
Lot. The foregoing restriction shall not be deemed to preclude the Declarant
from displaying a
“for sale” or “for rent” sign upon any Lot or Lots as may be owned by
the Declarant.
ARTICLE VI- STORM WATER MANAGEMENT AND RELATED IMPROVEMENTS
6.01 Association’s Obligation to Maintain. The Association shall be
responsible for
the maintenance, repair, cleaning, mowing and general maintenance of all storm
water
management facilities required or permitted to be constructed by Declarant
pursuant to the
Wiltshire Subdivision Plan or applicable Township ordinances and requirements
including, but
not limited to, storm water management basins, culverts, subsurface pipes or
conduits from the
conveyance of storm water runoff, drainage swales or berms, soil and surface
runoff control
devices, whether permanent or temporary, and similar improvements, as may be
necessary
from time to time to ensure the proper functioning of the storm water management
facilities, or
as otherwise may be required by the Township from time to time. The Association
shall have
an easement over and across any Lot on which such basin or other storm water
management
facilities are located for the purpose of doing all things necessary to
maintain, repair, clean,
mow or replace the same. The costs and expenses of maintenance, cleaning,
mowing,
repairing and replacing such storm water management facilities shall be deemed
to be Common
Expenses of the Association.
6.02 Declarant’s Right to Dedicate Improvements and Easements. Declarant
hereby
further reserves for itself, and its successors and assigns, the right to
transfer and dedicate to
the Township, all storm water drainage and basin easements shown on the
Wiltshire
Subdivision Plan, and with reference to all such storm water management basin or
drainage
easements, Declarant reserves the right to alter the location thereof in a
manner which will
reflect the actual as-built location of any facilities such as pipes, culverts
or basins constructed
or to be constructed within such easement areas, and to amend this Declaration,
or record one
or more other easement agreements, setting forth specific rights and obligations
of the Owners
of the Lots affected thereby and setting forth metes and bounds descriptions of
such easement
areas. If requested by Declarant, the Association and/or the Owner of any Lot
affected by any
such basin or drainage easement shall join with Declarant in executing and
delivering to the
Township one or more documents dedicating to the Township such easements over
and across
such easement areas, including any Lot, as the Township may require from time to
time.
35 U:\rnarina\Kim\decl3 amend&rest AC.doc
ARTICLE VII £ EASEMENTS
7.01 Easement to Construct Improvements. Declarant reserves for itself, and its
successors and assigns, and the Association any and all easements shown on the
Wiltshire
Subdivision Plan, over and across each of the Lots and the Property as may be
necessary or
convenient from time to time in connection with the construction, installation,
repair and
maintenance of storm sewers, sanitary sewers, storm water management facilities,
utilities and
utility facilities, including electrical, telephone, cable television, open
video systems, cable
internet access, and similar facilities. Declarant shall have the right to grant
easements over
and across the Property and any of the Lots to public or private entities
furnishing or providing
facilities for the transmission of utility services, including electrical,
telephone, cable
television, open video systems, cable internet access, and, if applicable,
natural gas, services.
7.02 Limitation of Liability. Declarant shall not be liable for any Property
damage
or personal injury, or the consequences thereof, as a result of exercise by
Declarant or its
successors or assigns of any of the rights or easements reserved herein or on
the Wiltshire
Subdivision Plan.
7.03 Easement for Inspection and Abatement. The Declarant and the Association
and
its Executive Board, officers and agents shall have the right and easement to
have access to
each Dwelling and Lot as may be necessary in order to inspect, maintain, repair
or replace any
Common Facilities, Controlled Facilities or Limited Controlled Facilities
therein or accessible
therefrom, or to inspect for or abate any violation of this Declaration or any
of the Rules and
Regulations of the Association.
36 U:\rnarina\Kim\decl3 amend&rest AC.doc
7.04 Declarant’s Easement for Marketin2. The Declarant reserves to itself the
right
with respect to its marketing of Lots to use the Common Facilities and Lots or
Dwellings that
have not already been conveyed to purchasers, and to erect signs on the Common
Facilities or
on any Lots not conveyed to purchasers. Such rights and easements shall be
reserved to the
Declarant until Declarant has sold all Lots and/or Dwellings which may be
located within the
Property.
7.05 Easement for Common Facilities. Declarant reserves the right and privilege
with respect to the construction of Dwellings, the Common Facilities, Controlled
Facilities,
Municipal Improvements and the Water Lines and all appurtenant improvements to
go upon
any and all the Property for purposes of construction, reconstruction,
maintenance, repair,
replacement or correction of any Common Facilities, Controlled Facilities,
Municipal
Improvements, Water Lines or Dwellings. Such easements shall exist in favor of
the Declarant
for so long as Declarant owns at least one (1) Lot or any of the Common
Facilities.
7.06 Easement of Owners to Use and Enjoy Common Facilities. The Owners shall
have the right to use and enjoy, in common with the Declarant and with all other
Owners, and
their tenants, family members, invitees and guests, the Common Facilities
subject to such
Rules and Regulations regarding the use of the Common Facilities as the
Executive Board may
promulgate from time to time.
7.07 Easement to Maintain Entrance Si2ns and Associated Structures/Landscaping.
Declarant reserves the right and privilege for itself and the Association to
enter upon Lots I,
54, 68 and 71 in order to install, maintain and replace Entrance Signs and
associated structures
and landscaping. Such easements shall exist in favor of the Declarant for so
long as Declarant
owns at least one (1) Lot or any of the Common Facilities.
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7.08 Private Drive — Lots 33 and 34. The Owners of Lot 33 and 34 shall each
have a
non-exclusive right in common with each other, for the full, free, uninterrupted
use, easement,
right, liberty and privilege for each such Owner and each such Owner’s guest,
tenants,
invitees, and servant and employees over and through a ten (10’) foot wide
paved cartway
(“Private Drive”) lying within the easement area described on Exhibit “J”
attached hereto (the
Easement Area”) for purposes of access to and from Schoolview Lane to each
such Owner’s
respective Lot. The right to use the Private Drive and Easement Area shall be a
private right
limited to the Owners of Lots 33 arid 34. The rights granted herein with respect
to use of any
portion of the Easement Area shall be limited to passage of pedestrians and
vehicles over the
private drive to gain access to and from Lots 33 and 34 and the dwellings
located on each such
Lot and not to permit the parking or storage of vehicles or other property
within the Easement
Area and/or the Private Drive, which parking or storage of vehicles or other
personal property
is hereby expressly prohibited. No Owner of Lot 33 and 34 or any other person or
party shall
obstruct or impede in any way the use of the Private Drive by any lawful user.
No Owner of
Lot 33 and 34 shall permit or suffer the use of the Easement Area or Private
Drive by
unlicensed motor vehicles such as dirt bikes or recreational vehicles. The
Owners of Lots 33
and 34 shall be equally responsible for the maintenance of the Private Drive,
including, but not
limited to, the cost of all snow removal, paving, repairs and replacements lying
within the
Easement Area. Any dispute between the Owners of Lots 33 and 34 regarding the
maintenance or use or any other matter relating to the Private Drive shall be
resolved by the
Architectural Control Committee, with the Owners of Lots 33 and 34 equally
sharing the cost
of reimbursing the Architectural Control Committee’s expenses relating
thereto. The
respective Owners of Lots 33 and 34 shall be entitled to landscape the Easement
Area
traversing such Owner’s Lot which is not otherwise encompassed by the paved
surface of the
Private Drive and to maintain therein such shrubbery, plantings or other
vegetation as the
Owner of such Lot shall desire, provided, however, that each such Owner shall at
all times
keep and maintain such non-paved portions of the Easement Area in such manner
that passage
over and through the Private Drive is riot in any way impeded and shall also, at
all times,
observe and comply with all of Township and other municipal ordinances or
requirements as to
the cutting of grass in the Easement Area. The Owners of Lot 33 and 34 shall be
solely
responsible for any injury or damages suffered by any invitee or other person
using the Private
Drive for the purpose of gaining access to such Owner’s Lot, i.e., the Owner
of Lot 33 shall
be responsible for injuries or damage suffered by invitees or others using the
Private Drive to
reach Lot 33.
38 U:\marina\Kim\decl3 amend&rest AC.doc
7.09 Private Drive — Lots 41 and 42. The Owners of Lot 41 and 42 shall each
have a
non-exclusive right in common with each other, for the full, free, uninterrupted
use, easement,
right, liberty and privilege for each such Owner and each such Owner’s guest,
tenants,
invitees, and servant and employees over and through a ten (10’) foot wide
paved cartway
(“Private Drive”) lying within the easement area described on Exhibit “K’
attached hereto (the
Easement Area”) for purposes of access to and from Cornerstone Court to each
such Owner’s
respective Lot. The right to use the Private Drive and Easement Area shall be a
private right
limited to the Owners of Lots 41 and 42. The rights granted herein with respect
to use of any
portion of the Easement Area shall be limited to passage of pedestrians and
vehicles over the
private drive to gain access to and from Lots 41 and 42 and the dwellings
located on each such
Lot and not to permit the parking or storage of vehicles or other property
within the Easement
Area and/or the Private Drive, which parking or storage of vehicles or other
personal property
is hereby expressly prohibited. No Owner of Lot 41 and 42 or any other person or
party shall
obstruct or impede in any way the use of the Private Drive by any lawful user.
No Owner of
Lot 41 and 42 shall permit or suffer the use of the Easement Area or Private
Drive by
unlicensed motor vehicles such as dirt bikes or recreational vehicles. The
Owners of Lots 41
and 42 shall be equally responsible for the maintenance of the Private Drive,
including, but not
limited to, the cost of all snow removal, paving, repairs and replacements lying
within the
Easement Area. Any dispute between the Owners of Lots 41 and 42 regarding the
maintenance or use or any other matter relating to the Private Drive shall be
resolved by the
39 U:\rnarina\Kim\decl3 amend&rest AC.doc
Architectural Control Committee, with the Owners of Lots 41 and 42 equally
sharing the cost
of reimbursing the Architectural Control Committee’s expenses relating
thereto, The
respective Owners of Lots 41 and 42 shall be entitled to landscape the Easement
Area
traversing such Owner’s Lot which is not otherwise encompassed by the paved
surface of the
Private Drive and to maintain therein such shrubbery, plantings or other
vegetation as the
Owner of such Lot shall desire, provided, however, that each such Owner shall at
all times
keep and maintain such non-paved portions of the Easement Area in such manner
that passage
over and through the Private Drive is not in any way impeded and shall also, at
all times,
observe and comply with all of Township and other municipal ordinances or
requirements as to
the cutting of grass in the Easement Area. The Owners of Lots 41 and 42 shall be
solely
responsible for any injury or damages suffered by any• invitee or other person
using the Private
Drive for the purpose of gaining access to such Owner’s Lot, i.e., the Owner
of Lot 41 shall
be responsible for injuries or damage suffered by invitees or others using the
Private Drive to
reach Lot 41.
VIII- PROVISIONS BENEFITING EAST NOTTINGHAM TOWNSHIP
8.01 Township’s Right to Enforce. The Township shall be a third party
beneficiary
of the provisions of this Declaration requiring the Association to maintain the
Common
Facilities, the Controlled Facilities and the Limited Controlled Facilities to
the extent
specifically required by the Township in connection with approval of the
Wiltshire Subdivision
Plan. The Township shall have the right (but not the obligation) to compel the
maintenance of
the Common Facilities in the event that the Association fails to do so, provided
that the
Township shall give notice to the Association of such failure and provide the
Association with
opportunity to cure such failure. The amount of any expenses incurred by the
Township and
charged to the Association in connection therewith shall be a Common Expense of
the
Association.
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8.02 Limit on Township’s Obligations. No provisions of this Declaration which
grant any rights to the Township shall be construed to impose any obligation of
maintenance or
repair of any of the Common Facilities and/or the Controlled Facilities and/or
the Limited
Controlled Facilities on the Township, and nothing in this Declaration shall be
construed as
imposing any such obligation on the Township. In the event that under any
provision of this
Declaration, or otherwise, the Township has the right to enforce the provisions
of this
Declaration relating to the maintenance or repair of the Common Facilities
and/or Controlled
Facilities and/or the Limited Controlled Facilities and if such rights of
enforcement are
exercised by the Township, the Township shall have the right to charge the costs
and expenses
thereof to the Association, and such costs arid expenses as are charged by the
Township to the
Association shall be a Common Expense of the Association.
IX - MISCELLANEOUS
9.01 Sidewalks. Each Lot Owner shall be responsible to maintain and repair
(including removal of snow and ice) the sidewalk area in front of such Lot Owner’s
Lot, which
sidewalk area includes that portion of the white concrete sidewalk constructed
over and across
the driveway entrance of such Lot. The Association shall at any time have the
right to assume
the obligation to maintain all sidewalks in the Community and to assess the cost
thereof as a
Common Expense. The Association shall have the right to maintain and/or repair
the sidewalk
area in front of any Lot and assess the cost thereof to the individual Lot Owner
if such Lot
Owner fails to maintain and/or repair the sidewalk area in front of such Lot
Owner’s Lot.
9.02 Declarant’s Rights. The rights of Declarant contained herein shall inure
to its
benefit and bind it in its capacity as developer of the Property. All rights and
easements
reserved unto Declarant pursuant to this Declaration shall inure to the benefit
of any successor
developer of the Property who acquires the Property or a portion thereof from
Declarant,
provided that Declarant shall have executed a written assignment of its rights
as the Declarant
hereunder, specifically referring to this Declaration and specifically assigning
its rights and
easements as the Declarant hereunder to such successor.
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9.03 Amendment. Subject to the other provisions of this Declaration, this
Declaration may be amended in the following manner:
(a) Any amendment to this Declaration may be proposed by the Executive
Board, or by Members of the Association entitled to cast at least ten (10%)
percent of the votes
of the Association. Except as otherwise specifically required by the Act (such
as matters on
which unanimous consent of the Members is required, relating to completion of
Common
Facilities, increase in the number of Units, voting strength, change in boundary
lines, etc.) or
where an amendment is specifically authorized by the Act to be implemented by
the Declarant
and/or the Association, or certain Owners, no proposed amendment to this
Declaration shall be
adopted unless approved by an. affirmative vote of at least 67% of the Members
of the
Association, and, if required hereunder, by the Township. The Members may adopt
an
amendment to this Declaration subject to approval thereof by the Township if
required
hereunder or if otherwise deemed necessary or advisable by the Executive Board.
Notice of
the proposed amendment shall be included in any notice of any special meeting of
the
Association at which such proposed amendment is to be considered. Such notice
shall be
served on all Members in the manner set forth in the By-laws for service of
notice of meetings
of the Association.
(b) During the Declarant Control Period, the Declarant may amend the
Declaration in any manner, subject to the Township’s approval if required
under Section 9.04.
(c) No amendment to this Declaration shall make any change that would in
any way alter, modify or affect any of the rights, easements or privileges of
the Declarant
hereunder, without the joinder therein by the Declarant.
9.04 Approval of Amendments by Township. Any amendment to this Declaration
which affects the interests of the Township shall be submitted to the Township
for its review
and approval, such approval to be deemed granted in the event that the Township
does not
respond to the Association’s or the Declarant’s request for such approval
within sixty (60) days
after such request for approval has been submitted to the Township. In the event
that the
Township disapproves such amendment, then no such amendment that would affect
the rights
of the Township granted hereunder shall be effective.
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9.05 Termination of Community. The Community may be terminated and the terms
and provisions of this Declaration extinguished for all purposes by a vote of
eighty (80%)
percent of the Members. A termination of the Community must be reflected in a
recordable
instrument signed by at least eighty (80%) percent of the Members and recorded
in the Office
of the Recorder of Deeds in and for Chester County within one (1) year of the
date it was
executed and ratified by a Lot Owner.
9.06 Construction. All easements, rights and options created in favor of the
Declarant and the Association hereunder or reserved by the Declarant pursuant to
this
Declaration and any amendments hereto shall be liberally construed in favor of
the Declarant
and the Association in order to carry out the purpose and intent of such
easements, rights and
options.
9.07 Severability. In the event that any provisions of this Declaration are
determined
by a court to be invalid or unenforceable, such invalid or unenforceable
provisions of this
Declaration shall be deemed stricken here from and shall not affect the validity
or
enforceability of any other provisions of this Declaration. In the event that
any provisions of
this Declaration are unenforceable or invalid as written, but may be reformed so
as to make the
same valid and enforceable in accordance with the reasonable intent of the
Declarant as
specified herein, it is the intent of the Declarant that any court interpreting
such provisions
shall to the extent permitted by law reform the same so as to make the same
valid and
enforceable in accordance with the reasonable intent of the Declarant expressed
therein.
9.08 Governing Law. This Declaration shall be governed and construed in
accordance with laws of the Commonwealth of Pennsylvania.
43 U:\marina\Kim\decl3 amend&rest AC.doc
9.09 Covenants and Easement Running with the Land. All of the covenants,
easements and restrictions set forth herein, shall constitute covenants,
easements and
restrictions running with the Property, the Common Facilities, and all of the
Lots and
Dwellings, in perpetuity, and all such covenants, easements and restrictions
shall be binding
upon and inure to the benefit of the Declarant, the Association and their
respective heirs,
executors, administrators, successors and assigns.
IN WITNESS WHEREOF, the Declarant has executed this Declaration as of the day
and year first above written.
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