cc&rs fieldcrest at meadow valley owners...
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CC&Rs
Fieldcrest at Meadow Valley Owners Association
DECLARATTON OF CONDOMINIUM
OF
ELDCREST TOWNHOMES AT MEADOW VALLEY, A FLEXIBLE CONDOMINIUM
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This Document Recorded Doc Id: 6214637 07/29/2003 Receipt 6: 226883 04:19PM Reo Fee: 218.60 Doc Code: 111 Lancaster County, Recorder of Deeds Office
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Pursuant to the provisions of 68 P.S.C.A. Section 3201 this Declaration shall be recorded in the Office of the Recorder of Deeds in and for Lancaster County, Pennsylvania and is to be indexed in the same records as are notarized for the recording of a deed and shall idente Phillippi Creek, Inc. (Declarant) as the grantor, and Fieldcrest Townhomes at Meadow Valley, a Flexible Planned Community (Name of Planned Community) as the grantee.
The real property made subject to this Declaration is located in Ephrata Township, Lancaster County, Pennsylvania
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TABLE OF CONTENTS
ARTICLE 1
Page
SUBMISSION I
1.1 Declarant: Name; County; Property 1
1.2. Fieldcrest Lane 1
1.3. Easements and Licenses 2
ARTICLE 2
DEFINITIONS 3
2.1. Terms Defined or Used in the Act 3
2.2. More Specific Meanings 3
2.3. Non -Statutory Terms Defined 5
ARTICLE 3
BUILDINGS; UNITS; BOUNDARIES; CERTAIN MAINTENANCE RESPONSIBILITIES 6 3.1. Plats and Plans; Units/Common Elements 6 3.2. Unit Boundaries 6 3.3. Maintenance Responsibilities 9
3.4. Relocation of Unit Boundaries; Subdivision and Conversion of Units 9 3.5. Alterations of Units 9 3.6. Water and Sewer Service. 11
ARTICLE 4
IDENTIFICATION OF UNITS; ALLOCATION OF VOTES, COMMON ELEMENT INTERESTS AND COMMON EXPENSE LIABILITIES 12 4.1. Percentage Interests 12
ARTICLE 5
DESCRIPTION, ALLOCATION AND RESTRICTION OF COMMON ELEMENTS AND LIMITED COMMON ELEMENTS 13
5.1. Limited Common Elements 13
5.2. Allocation of Limited Expense Liability 13
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5.3. Outdoor Parking Areas 14 5.4. Designation of Reserved Common Elements 14
ARTICLE 6
EASEMENTS; RIGHTS OF DECLARANT; RIGHTS OF ASSOCIATION 15
6.1 Additional Easements 15
6.2. Rights of the Association 16
6.3. Declarant's Right to Convey a Unit to the Association 16 6.4. Declarant's Easement to Correct Drainage 17 6.5. Easement for Use of Walking Path 17 6.6. Easement for Use of Fieldcrest Lane 17
ARTICLE 7
AMENDMENT OF DECLARATION; BYLAWS 18
7.1. Amendment Generally 18 7.2. Rights of Certain Posted Mortgagees 18 7.3. Rights of Declarant 19
ARTICLE 8
USE RESTRICTIONS 20 8.1. Use and Occupancy of Units and Common Elements 20
ARTICLE 9
MORTGAGES 23 9.1. In General 23
ARTICLE 10
RIGHTS OF POSTED MORTGAGEES 24 10.1. Reports and Notices 24 10.2. Condemnation and Insurance Proceeds 25 10.3. FNMA and FHLMC Requirements. 25 10.4. Rights of Posted Mortgagee under Site Condominium Declaration 26
ARTICLE 11
REAL ESTATE TAXES 26
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11.1. Real Estate Taxes 26
ARTICLE 12
POWERS OF THE EXECUTIVE BOARD 26 12.1. Additional Powers 26 12.2. Disputes 28
12.3. Trash Removal. Snow Removal and Other Maintenance 29 12.4. Voting and Election of Site Association Executive Board Members 29
ARTICLE 13
BUDGETS; COMMON EXPENSES; ASSESSMENTS AND ENFORCEMENT 29 13.1. Annual Assessments 29 13.2. Subordination of Certain Charges 30 13.3. Reserves 30 13.4. Accounting 31
13.5. Acceleration 31 13.6. Collection Charges 31 13.7. Confession of Judgment 31 13.8. Surplus 32
ARTICLE 14
LEASING 32 14.1. Restrictions 32
ARTICLE 15
INSURANCE; RELEASES; RESTORATION 32 15.1. Generally 33 15.2. Repairs and Reconstruction After Fire or Other Casualty 37
ARTICLE 16
LIMITATION OF LIABILITY 39 16.1. Fiduciary Duty 39 16.2. Good Faith Reliance 40 16.3. Limited Liability 40
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ARTICLE 17
DECLARANT'S RIGHTS 41 17.1. Control 42
ARTICLE 18
CONVERTIBLE REAL ESTATE 42 18.1. Reservation 42 18.2. Assurances 42 18.3. , Voting and Expenses 43 18.4. Obligation of Declarant to Pay Site Condominium Assessments 43
ARTICLE 19
PROVISIONS BENEFITTING EPHRATA TOWNSHIP 44 19.1. Ephrata Township as Beneficiary 45 19.2. Notice to Ephrata Township 46 19.3. Association Responsible for any Municipal Special Assessments 46
ARTICLE 20
TIME SHARES 47 20.1. Limitation 47
ARTICLE 21
GENERAL PROVISIONS 47 21.1. Prosecution of Proceedings 47 21.2. Headjngs 47 21.3. Severability 47 21.4. Applicable Law 47 21.5. Interpretation 47 21.6. Effective Date 47 21.7. Notices 47 21.8. Exhibits 48 21.9. No Partnership 48 21.10. Waivers 48 21.11. Force Majeure 48 21.12, Estoppel Certificates 48 21.13. Subjecting of Mortgage . 49 21.14. Exculpation 49
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21.15. Laws and Ordinances 50 21.16. Performance under Protest 50 21.17. Consents and Approvals 50 21.18. Changes in Plats and Plans 50
EXHIBIT A: EXHIBIT B:
`EXHIBIT C: EXHIBIT D:
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SUBMITTED REAL ESTATE SCHEDULE OF UNIT IDENTIFYING NUMBERS AND PERCENTAGE INTERESTS PLAT CERTIFICATION AND PLANS CONVERTIBLE REAL ESTATE
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DECLARATION OF CONDOMINIUM
FIELDCREST TOWNHOMES AT MEADOW VALLEY, A FLEXIBLE CONDOMINIUM
Meadow Valley Road Ephrata Township, County of Lancaster
Commonwealth of Pennsylvania
THIS DECLARATION is made this Ç 1 day of Phillippi Creek, Inc., a Pennsylvania corporation, as the own Estate herein described.
WITNESSETH:
ARTICLE 1
SUBMISSION
2003, by simple of the Real
1.1 Declarant; Name; County; Property. Phillippi Creek, Inc., a Pennsylvania corporation (the "Declarant"), is the owner of the Real Estate described in Exhibit "A" attached hereto, located in the Township of Ephrata, County of Lancaster and Commonwealth of Pennsylvania. The Real Estate consists of Unit A within the condominium known as Fieldcrest at Meadow Valley, a Site Condominium (the "Site Condominium"). The declaration for such Site Condominium is of record in the Office of the Recorder of Deeds of and for Lancaster County, Pennsylvania at Instrument Number
r . Declarant hereby submits the Real Estate, together with the buildings and improvements thereon erected or to be erected and the easements, rights and appurtenances there -unto belonging (the "Property") to the provisions of the Pennsylvania Uniform Condominium Act, 68 Pa.C.S. § 3101 et seq. (as the same may be amended from time to time, the "Act"), and hereby creates with respect to the Property a condominium, to be known as "Fieldcrest Townhomes at Meadow Valley, A Flexible Condominium" (the "Condominium").
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1.2. Fieldcrest Lane. A private lane named Fieldcrest Lane will provide access to the Condominium from Meadow Valley Road. Fieldcrest Lane shall not be offered to Ephrata Township for dedication unless it is improved to meet applicable Ephrata Township specifications and thereafter affirmatively accepted by the Township. The Association (as defined in Section 2.2.a) shall maintain, repair and replace that portion of Fieldcrest Lane within the Property at its sole cost and expense. The Association shall pay assessments to the Site Condominium for the maintenance, repair and replacement of that portion of Fieldcrest Lane which is not located within a unit of the Site
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Condominium, for the maintenance of street lights located along the entire length of Fieldcrest Lane within the Site Condominium, and for the enforcement of parking restrictions and installation and maintenance of "No Parking" signs along the length of Fieldcrest Lane (including any portion within the Property). Those portions of Fieldcrest Lane within the Condominium (including adjacent sidewalks and parking areas, but excluding driveways) are subject an easement in favor of the residents of Unit B of the Site Condominium for pedestrian and vehicular access. The Condominium is similarly benefitted by an easement for pedestrian and vehicular access over those portions of Fieldcrest Lane located within Unit B of the Site Condominium (including adjacent sidewalks and parking areas, .but excluding driveways). The intended location of Fieldcrest Lane is depicted upon the Plats. To the extent Fieldcrest Lane is located within Convertible Real Estate, as defined below, it "NEED NOT BE BUILT" until such Convertible Real Estate is converted into Units, Common Elements, or Limited Common Elements.
1.3. Easements and Licenses. Including among the easements, rights and appurtenances referred to in Section 1.1 above are recorded easements and licenses, and the Real Estate is hereby submitted to the Act:
a. The portion of the Property lying in the bed of Meadow Valley Road (L.R. 36121) is subject to public and private rights therein.
b. Rights granted to Consumer Gas Co. as set forth in Record Book S-
c. Rights granted to Consumer Gas Co. as set forth in Record Book S-
d. Rights granted to Pennsylvania Depai tiiient of Transportation as set forth at Instrument Number 5100259.
e. Rights granted to PPL Electric Utilities, Inc. as set forth at Instrument Number 5106518.
f. Rights granted to Blue Ridge Cable Technologies, Inc. as set forth at Instrument Number 5114315.
40, Page 81.
g. Rights granted to Denver & Ephrata Telephone Company as set forth at Instrument Number 5140015.
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h. Storm Water Management Agreement with Ephrata Township as set
forth at Instrument Number 5150608.
i. Rights granted to UGI Utilities, Inc. as set forth at Instrument Number 5155049.
j. Easements and Restrictions as set forth on the Final Land Development Plan.
k. Easements, restrictions, rights and obligations set forth in the Declaration of Condominium for Fieldcrest at Meadow Valley, a Site Condominium.
1. TOGETHER WITH and subject to the easement granted by Eastland Communities for the discharge of storm water unto lands now or presently owned by Eastland Communities as set forth at Instrument Number 5130644.
m. TOGETHER WITH and subject to the rights granted by BGT Realty, Company as set forth at Instrument Number 5130646.
n. TOGETHER WITH and subject to the rights granted by Ephrata Borough as set forth at Instrument Number 5130999.
o. TOGETHER WITH and subject to the rights granted by Richard J. Haller as set forth at Instrument Number 5131000.
ARTICLE 2
DEFINITIONS
2.1. Terms Defined or Used in the Act. Capitalized terms used herein and in the Bylaws and Plats and Plans shall have the meanings specified or used for such terms in §
3103 or elsewhere in the Act, unless otherwise defined herein.
2.2. More Specific Meanings. The following terms are used or defined in general terms in the Act and shaII have specific meanings hereunder as follows:
a. "Association" means the Unit Owners' Association of the Condominium and shall be known as "Fieldcrest Townhome Condominium Association."
b. "Buildings" means any buildings included in the Property.
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c. "Bylaws" means the document having that name and providing for the governance of the Association, pursuant to § 3306 of the Act, as such document may be amended from time to time.
d. "Common Elements" means all portions of the Condominium other than the Units, including, without limitation, General Common Elements and Limited Common Elements.
e. "Common Expenses" means all Common Expenses, including, without limitation, Limited Expenses and General Common Expenses.
f. "Condominium" means the Condominium described in Section 1.1 above.
g. "Convertible Real Estate" means the real estate described in Exhibit "D" attached, so long as the Declarant's rights to create Units and Limited Common Elements therein continue to exist.
h. "Declarant" means the Declarant described in Section 1.1 above and all successors to any Special Declarant Rights pursuant to the provisions of § 3304 of the Act.
i. "Declaration" means this document, as the same may be amended from time to time.
j. "Executive Board" or "Board" means the Executive Board of the Association.
k. "Limited Common Elements" means the Common Elements described as such in the Act, or described herein or in the Plats and Plans as being Limited Common Elements, including, without limitation, balconies, terraces, patios, porches and decks appurtenant to certain Units as shown on the Plats and Plans.
1. "Limited Expenses" means the Common Expenses described as such in § 3314(c) of the Act as modified by Sections 3.3 and 5.2 of this Declaration.
m. "Plats and Plans" means the Plats recorded the same day as this Declaration in the Office of the Recorder of Deeds of Lancaster County, Pennsylvania in the Plan Book, and the Plans attached hereto as Exhibit "C" and made a part hereof, as the same may be amended from time to time. A certificate confirming that the Plats contain
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all information required by Section 3210 of the Act is attached hereto as part of Exhibit
n. "Unit" means a Unit as described herein and in the Plats and Plans.
2.3. Non -Statutory Terms Defined. The following terms when used herein or in the Plats and Plans shall have the meanings set forth below:
a. "General Common Elements" means all portions of the Common Elements other than the Limited Common Elements. General Common Elements located within the Condominium, including but not limited to Fieldcrest Lane, stormwater inlets, sewer laterals shall be maintained, repaired and replaced by the Association and the costs of such maintenance, repair and replacement shall be borne by all Unit Owners as and to
the extent provided in the Act for Common Elements.
b. "General Common Expenses" means all Common Expenses other than Limited Expenses, including but not limited to Site Condominium Assessments and other charges payable by the Association to the Site Association.
c. "Fieldcrest Lane" The private lane located within the Condominium that connects with access to the Condominium from Meadow Valley Road. Fieldcrest Lane shall not be offered to Ephrata Township for dedication unless it is improved to meet applicable Ephrata Township specifications and thereafter affirmatively accepted by the Township. The Association shall maintain (including snow removal), repair and replace Fieldcrest Lane at its sole cost and expense to the extent located within the Condominium.
d. "Percentage Interest" means each Unit Owner's undivided ownership interest in the Common Elements, share of all votes of Unit Owners and share of Common Expense Liability appurtenant to each Unit as set forth in Exhibit "B" attached and calculated pursuant to Article IV of this Declaration, as the same may be amended from time to time. A Unit Owner may not transfer his/her Percentage Interest without transferring his/her Unit to which the Percentage Interest is allocated.
e. "Posted Mortgage" means any mortgage, the name and address of the holder and servicer (if any) of which has been submitted to the Executive Board. A holder of a Posted Mortgage is referred to herein as a "Posted Mortgagee."
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f. "Property" means the Property described in Section 1.1 above.
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g. "Reserved Common Elements" means portions of the Common Elements which the Executive Board may designate as such from time to time pursuant hereto.
h. "Rules and Regulations" means such rules and regulations as are promulgated by the Executive Board from time to time, with respect to various details of the use of all or portions of the Property, either supplementing or elaborating upon the provisions in the Declaration or the Bylaws or both.
i. "Site Condominium" means Fieldcrest at Meadow Valley, a Site Condominium, of which the Property forms Unit A within the Site Condominium.
j. "Site Condominium Assessment" means the amount that the Association must pay to the Site Condominium for General and Limited Common Expenses of the Site Condominium, subject to the Declarant's obligation to pay those portions of the assessment associated with the Convertible Real Estate as set forth in Section 18.4.
k. "Site Association" means the Unit Owners' Association of the Site Condominium and shall be known as "Fieldcrest Site Condominium Association."
m. "Walking Path" means the pedestrian walkway passing through the Property and adjacent benches, gazebos, gardens, etc. as depicted upon the Plats and Plans. Those portions of the Walking Path located within the Property shall be maintained, repaired and replaced at the sole cost and expense of the Site Association and shall be further subject to an easement for pedestrian access in favor of the residents and guests of Unit B of the Site Association.
ARTICLE 3
BUILDINGS; UNITS; BOUNDARIES; CERTAIN MAINTENANCE RESPONSIBILITIES
3.1. Plats and Plans; Units/Common Elements. The intended location and dimensions of the Buildings and the other structures and improvements comprising the Property and the Units, Common Elements and Limited Common Elements of the Condominium are shown on the Plats and Plans. The Convertible Real Estate is also identified on the Plats.
3.2. Unit Boundaries. The title lines or boundaries of each Unit are situated as shown on the Plans and described as follows: all exterior or common walls, doors and
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windows within or comprising part of such walls. The Unit boundary within the basement of a Unit shall be the surface of the concrete wall and shall include the entire concrete floor/slab. Each Unit shall include the items within the Unit or part of the title lines described in § 3202 of the Act (except as modified by this Declaration) and which are appurtenant to the Unit, as follows:
a. All lath, furring, wallboard, plasterboard, plaster, paneling, tiles, wallpaper, paint, finished flooring and any other materials constituting any part of the finished surfaces of such boundary walls, floors or ceilings are a part of the Unit, and all other portions of such boundary walls, floors or ceilings are a part of the Common Elements. If the Unit contains a finished basement, the Unit shall include all material, including but not limited to the finished surface, framing, insulation, and other materials, located on the surface of the concrete wall comprising the boundary wall.
b. If any chute, flue, duct, wire, conduit, bearing wall, bearing column or any other fixture lies partially within and partially outside the designated boundaries of a Unit, any portion thereof serving only that Unit shall be considered part of the Unit, and any portion thereof serving more than one Unit or any portion of the Common Elements is a part of the Common Elements.
c. Subject to the provisions of subparagraph b, all spaces, interior partitions (including ceilings and floors on multi -floor units), finished basement walls and floors (from the surface of the concrete) and other fixtures and improvements within the boundaries of a Unit are a part of the Unit.
d. Any shutters, window boxes, balconies, terraces, porches and decks (including railings), designed to serve a single Unit, but located outside the Unit's boundaries, are Limited Common Elements allocated exclusively to that Unit.
There is also included within a Unit (by way of illustration and not limitation):
a. The air space enclosed within the title lines described above.
b. All partitions which are wholly contained within such title lines, including (but not limited to), all doors, door frames, garage doors, hardware, electrical outlets and wiring, telephone outlets and conduits, and other equipment and devices in such partitions serving only such Unit.
c. All plumbing fixtures located within such title lines and serving only such Unit, and their water and waste connections. The Unit shall also include those water lines lying outside of the Unit boundaries from the Unit to the water mains.
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d. All items of kitchen equipment located within such title lines and serving only such Unit, and such equipment's water, waste and electrical connections.
e. Exhaust fans and the grilles, registers, ventilation ducts and related fixtures which serve only such Unit, whether or not any of the foregoing is located in any portion of the Common Elements.
f. Lighting devices (including, by way of illustration and not limitation, lamps and bulbs which are surface mounted on, recessed in, or suspended from, ceilings, walls and partitions within or on the perimeter of such Unit) serving only such Unit whether or not such lighting devices are themselves located entirely within the title lines of such Unit. The Unit Owner shall be further responsible for the ordinary maintenance of outdoor lighting which serves or is controlled within a Unit.
g. Outlets, wires, cables, conduits, circuits and related equipment transmitting electricity for lighting and power or transmitting electrical impulses and signals (including, but not limited to, impulses and signals for telephone, telegraph and television transmission, except to the extent otherwise specifically provided herein) which serve only such Unit and which are located entirely within the title lines of such Unit.
h. Surface -mounted and recessed medicine cabinets (including, by way of illustration and not limitation, all associated lighting fixtures and accessories).
i. Refrigerators, ranges, dishwashers, clothes washers and dryers, garbage disposal units and other appliances (if any), and the portions of their water, waste, electrical and exhaust connections located within such title lines and serving only such Unit.
j. Exterior doors, windows and garage doors (if any), including frames, sills and the hardware and mechanisms related to the operation of such exterior doors, windows and garage doors. Any change of color or design of the exterior doors, windows or garage door shall be approved by the Executive Board.
k. All materials within a finished basement from the surface of the concrete.
Those portions of any lighting devices, outlets, medicine cabinets, exhaust fans, ventilation ducts, registers, grilles and similar fixtures which serve only such Unit and which lie partially within and partially outside the title lines of a Unit shall be deemed to be a part of such Unit.
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3.3. Maintenance Responsibilities. Notwithstanding the ownership of the various portions of the Common Elements and the Units by virtue of the foregoing boundary descriptions, the Units and Common Elements, including Fieldcrest Lane within the Property, and the stormwater inlets within the Property, shall be maintained, repaired and replaced by each Unit Owner and by the Association in accordance with the provisions of § 3307 of the Act, except as expressly set forth to the contrary herein. The stormwater inlets, sanitary sewer lateral and water laterals shall in all respects be maintained, repaired and replaced in accordance with applicable federal, state and local law, including without limitation Ephrata Township ordinances. All Common Expenses associated with the maintenance, repair and replacement of a Limited Common Element other than a balcony, deck, terrace, porch or patio Limited Common Element shall be assessed as Limited Expenses against the Units to which such Limited Common Element was assigned or appurtenant at the time the expense was incurred in the same proportions as the respective Percentage Interests of all such Units. Ordinary maintenance and repair of balcony, deck, terrace, porch or patio Limited Common Elements shall be the responsibility of the Owner of the Unit to which such Limited Common Element is appurtenant. Structural repairs and/or replacements of such Limited Common Elements shall be the responsibility of the Association, the costs to be charged as Limited Expenses among all of those Units to which such a type of Limited Common Element is appurtenant.
3.4. Relocation of Unit Boundaries; Subdivision and Conversion of Units. Subject to Section 7.2, relocation of boundaries between Units and subdivision or conversion of Units will be permitted subject to compliance with the provisions therefor in §§ 3214 and 3215 of the Act. Subdivision or conversion of Units by the Declarant pursuant to § 3215(c) of the Act may not result in more than one six (106) Units within the Condominium.
3.5. Alterations of Units. Subject to requirements of law and to applicable Rules and Regulations, a Unit Owner:
a. May make any improvements or alterations to his Unit that do not impair the structural integrity or mechanical systems or lessen the support of any portion of the Buildings.
b. May not change the appearance of the Common Elements or the exterior appearance of a Unit or any other portion of the Condominium without permission of the Association, including by way of illustration and not limitation the enclosure, screening or covering of the balcony, deck, terrace or patio attached to the Unit. If an Unit Owner, with the permission of the Association, encloses, screens or covers a balcony, deck, terrace or patio, that Unit Owner shall be responsible for the
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maintenance, repair and replacement of the structure, enclosure, screening or covering. Further, the Unit Owner shall be responsible for the additional cost of maintaining the balcony, deck, terrace or patio so covered or any other Common Element as a result of such enclosure, screening or covering.
c. After acquiring an adjoining Unit or an adjoining part of an
adjoining Unit (adjacent, above or below) and receiving necessary approvals for the alteration of boundaries, may remove or alter any intervening partition or create apertures therein, even if the partition, in whole or in part, is a Common Element, if those acts do not impair the structural integrity or mechanical systems or lessen the support of any portion of the Condominium.
d. Shall refrain from making any alteration that will adversely affect either the fire retardant or sound absorbent quality of the Buildings or violate any applicable law, ordinance or governmental rule, regulation or order.
e. Shall obtain the approval of the Executive Board (which approval shall not be unreasonably withheld or delayed) for any alteration to the Buildings prior to the commencement of any such alteration, subject to exemptions pursuant to the Rules and Regulations, if any.
f. Shall expeditiously complete all alterations: (i) in accordance with the plans and specifications therefor which have been prepared at such Unit Owner's expense and which have been approved by the Executive Board prior to the commencement of such alterations, if required; and (ii) without incurring any mechanics' or materialmen's liens.
g. Shall pay all costs and expenses incurred in connection with the Executive Board review and approval process and the preparation, review, execution and recording of any amendment to the Declaration (including the Plats and Plans) needed in order to reflect the condition of the Buildings after completion of such alterations, which amendment shall be recorded by the Executive Board if such amendment conforms to the requirements of the Act and if such amendment is approved in writing by at least 67% of the Owners of all Units, the appearances of which on such amendment differ from their respective appearances on the Plats and Plans prior to such amendment, and such amendment shall not require any additional authorization or approval, notwithstanding anything contained elsewhere in this Declaration to the contrary.
h. Shall not permit installation, removal, reconstruction or repair of any electrical lighting, signal transmission and/or power circuit or electric outlet box or terminal device included in such outlet box, or any items of heating or air conditioning
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equipment, or any ventilation or exhaust duct or related equipment, any of which is located within an interior partition of a Unit or within the ceiling above a Unit, until after application has been made to and written approval has been received from the Executive Board. Such approval shall be granted only if the work performed shall be of similar or superior quality to that then prevailing in the Buildings and shall be performed by qualified personnel. The cost of such installation, removal, reconstruction or repair, whether undertaken by a Unit Owner or by the Association (under procedures which may be established by the Executive Board) shall be borne by the Unit Owner of the Unit benefitted thereby.
i. Nothing herein shall be deemed to require the Declarant to obtain the permission of the Association to construct or make alterations to Units.
3.6. Water and Sewer Service.
a. The Condominium is served with municipal sewer through the Ephrata Township Sewer Authority by virtue of a private sanitary sewer gravity line which travels through the Site Condominium. Each Unit constructed within the Condominium will be separately billed for sewer service by the Authority. The Site Association shall be responsible for the maintenance, repair and replacement of the private sanitary sewer gravity main which travels through the Site Condominium but shall not be responsible for the laterals which serve the buildings within each Unit. The laterals shall be maintained, repaired and replaced, as and when necessary, by the Association.
b. The Condominium is served with municipal water through the Ephrata Area Joint Authority by virtue of a public water main which travels through the Site Condominium. Each Unit constructed within the Condominium will be separately billed for water service by the Authority. The Site Association shall be responsible for the maintenance, repair and replacement of the water mains and fire hydrants (if such water lines and fire hydrants are not accepted for dedication by an appropriate authority) which travels through the Site Condominium, but shall not be responsible for each lateral which serves the buildings within each Unit. The laterals shall be maintained, repaired and replaced, as and when necessary, by the Owner of the Unit which is served by the lateral.
c. Ephrata Township Sewer Authority and Ephrata Area Joint Authority, individually and collectively, shall have the right, in accordance with applicable law, to impose a lien against an individual Unit and enter judgment against the Unit Owner, if the Unit Owner fails to pay the charges due either Authority for water or sewer service, as the case may be.
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ARTICLE 4
IDENTIFICATION OF UNITS; ALLOCATION OF VOTES, COMMON ELEMENT INTERESTS AND
COMMON EXPENSE LIABILITIES
4.1. Percentage Interests. Attached as Exhibit "B" hereto is a list of all Units by their Identifying Numbers and the Percentage Interest appurtenant to each Unit. The Percentage Interest appurtenant to each Unit is a fraction, the numerator of which is the "net square footage" of the particular Unit and the denominator of which is the aggregate "net square footage" of all Units located within the Condominium. The Percentage Interest assigned to each Townhome Unit is based on the "net square footage" of the Unit divided by the aggregate net square footage of all Units within the Townhome Condominium.
The "net square footage" of a Townhome Unit is determined as follows:
a. Determine the number of square feet of living space within the Unit, excluding garages and basements. Each Unit shall be deemed to contain the square footage of living space as shown upon the plans ("Living Space").
b. Determine the number of square feet of garage and basement space and divide by 2 ("Adjusted G/B Space").
c. Add the Living Space to the Adjusted G/B Space to arrive at the net square footage.
For example, a Unit with 1,500 square feet of Living Space and 1,000 square feet of basement and/or garage space would have a net square footage of 2,000 square feet. Living Space (1,500 sq. ft.) + Adjusted G/B Space (500 sq. ft.).
The "square feet" of living space, garage and basement space is the approximate total number of square feet of floor space contained therein determined by reference to dimensions shown on the Plats and Plans (exclusive of balconies, decks, patios and terraces).
The Percentage Interest shall determine the portion of the votes in the Association and the share of Common Expense Liability appurtenant to each Unit. The number of votes to which the Owners of each Unit are entitled shall be the Percentage Interest allocated to such Unit multiplied by 100. The Declarant shall pay common expense assessments on all declared but unconstructed Units from the date common expense
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assessments begin, subject to the limitation that Declarant shall not be required to pay any portion of the common expense assessment upon unconstructed Unit(s) attributable to capital reserves (as described in Section 13.3 below) or the insurance and maintenance of the buildings within the Condominium (i.e. Declarant shall pay for the percentage of operating expenses attributable to unconstructed Units, e.g. snow removal, landscaping, office supplies, management fees, etc., but excluding building maintenance).
ARTICLE 5
DESCRIPTION, ALLOCATION AND RESTRICTION OF COMMON ELEMENTS
AND LIMITED COMMON ELEMENTS
5.1. Limited Common Elements. Balconies, deck, terraces, porches, and patios are assigned as Limited Common Elements appurtenant to the Units which they abut. Other Limited Common Elements are assigned as set forth in Section 3.2 above. There are no other Common Elements or Limited Common Elements which may be allocated or assigned in the future, except as described in the next paragraph.
The Executive Board may allocate portions of the open areas near or abutting Units for use by the owner of a particular Unit for purposes deemed appropriate by the Board such as expansion of patios, fencing, garden or other planting areas, installation of privacy fences and/or shrubbery.
5.2. Allocation of Limited Expense Liability. Except as set forth in Section -3.3 above, Limited Common Elements shall be maintained and repaired by the Association and the costs of such maintenance and repair shall be apportioned among the Unit or Units served by such Limited Common Elements as follows:
a. Limited Expenses shall be assessed against, and borne by, the Units in proportion to their respective Percentage Interests;
b. All other Limited Expenses shall be assessed and borne as provided in Section 3314(c)(1) of the Act.
Any surplus funds derived from assessments for Limited Expenses shall be credited to those Unit Owners who paid such assessments (in order to reduce their future liability for such Limited Expenses) in accordance with the same formula used for assessing such Limited Expenses.
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5.3. Outdoor Parking Areas. There are outdoor automobile parking spaces situated on the Property, excluding the driveways located in front of the Units. Such outdoor parking spaces are Common Elements and shall be available for the use of Owners and guests on a "first come - first served" basis, except as the Executive Board may otherwise determine. The outdoor parking spaces, are further subject to an easement in favor of other residents and guests of the Site Condominium. The driveway appurtenant to a Unit shall be for the sole exclusive use of the Owner of that Unit. Further, there shall be no parking of any vehicles on Fieldcrest Lane, except in designated areas as shown upon the Plats and Plans. The prohibition against parking on Fieldcrest Lane, except in designated areas as shown upon the Plats and Plans, was required by Ephrata Township as a condition for its approval of the development of the Property. The Declaration may not be amended and no rule may be promulgated by the Executive Board which would permit parking on Fieldcrest Lane outside of the designated areas without the express written consent of Ephrata Township. The Site Association shall be responsible, at its sole cost and expense, to enforce such parking restrictions, including the removal of improperly parked vehicles and the installation and maintenance of "No Parking" signs along Fieldcrest Lane.
5.4. Designation of Reserved Common Elements. "Reserved Common Elements" are those parts of the Common Elements which the Executive Board may designate from time to time for use and/or access by less than all of the Unit Owners or by non -owners of any Units for specified periods of time by satisfying other reasonable conditions for use as may be established by the Executive Board. Included in the Reserved Common Elements may be a Unit which may be used as the residence of the Condominium manager or superintendent, all or some of the recreational facilities and such areas as the Executive Board may designate for access only by authorized personnel.
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5.3. Outdoor Parking Areas. There are outdoor automobile parking spaces situated on the Property, excluding the driveways located in front of the Units. Such outdoor parking spaces are Common Elements and shall be available for the use of Owners and guests on a "first come - first served" basis, except as the Executive Board may otherwise determine. The outdoor parking spaces, are further subject to an easement in favor of other residents and guests of the Site Condominium. The driveway appurtenant to a Unit shall be for the sole exclusive use of the Owner of that Unit. Further, there shall be no parking of any vehicles on Fieldcrest Lane, except in designated areas as shown upon the Plats and Plans. The prohibition against parking on Fieldcrest Lane, except in designated areas as shown upon the Plats and Plans, was required by Ephrata Township as a condition for its approval of the development of the Property. The Declaration may not be amended and no mle may be promulgated by the Executive Board which would permit parking on Fieldcrest Lane outside of the designated areas without the express written consent of Ephrata Township. The Site Association shall be responsible, at its sole cost and expense, to enforce such parking restrictions, including the removal of improperly parked vehicles and the installation and maintenance of "No Parking" signs along Fieldcrest Lane.
5.4. Designation of Reserved Common Elements. "Reserved Common Elements" are those parts of the Common Elements which the Executive. Board may designate from time to time for use and/or access by less than all of the Unit Owners or by non -owners of any Units for specified periods of time by satisfying other reasonable conditions for use as may be established by the Executive Board. Included in the Reserved Common Elements may be a Unit which may be used as the residence of the Condominium manager or superintendent, all or some of the recreational facilities and such areas as the Executive Board may designate for access only by authorized personnel.
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ARTICLE 6
EASEMENTS; RIGHTS OF DECLARANT; RIGHTS OF ASSOCIATION
6.1. Additional Easements. In addition to and in supplementation of the easements provided for by §§ 3216 (encroachments), 3217 (Declarant's use of portions of the Buildings for sales purposes) and 3218 (to facilitate Declarant's work) and the other provisions of the Act, the following easements are hereby created:
a. Utility Easements. The Units and Common Elements shall be, and are hereby made, subject to easements in favor of the Declarant, appropriate utility and service companies and governmental agencies or authorities for such utility and service lines and equipment as may be necessary or desirable to serve any portion of the Property. The easements created in this Section 6.1.a. shall include, without limitation, rights of Declarant, or the providing utility or service company, or governmental, agency or authority to install, lay, maintain, repair, relocate and replace gas lines, pipes and conduits, water mains and pipes, sewer and drain lines, telephone wires and equipment, television equipment and facilities (cable or otherwise), electrical wires, conduits and equipment and ducts and vents over, under, through, along and on the Units and Common Elements. Notwithstanding the foregoing provisions of this Section 6.1.a., unless approved in writing by the Unit Owner or Unit Owners affected thereby, any such easement through a Unit shall be located either in substantially the same location as such facilities or similar facilities existed at the time of first conveyance of the Unit by the Declarant. Any such easement shall be located so as not to materially interfere with the use or occupancy of the Unit by its occupants.
b. Access. The Units and the Limited Common Elements are hereby made subject to the following easements:
(1) In favor of the Association and its agents, employees and independent contractors, (i) for inspection of the Units and Limited Common Elements in order to verify the performance by Unit Owners of all items of maintenance and repair for which they are responsible, (ii) for inspection, maintenance, repair, and replacement of the Common Elements or the Limited Common Elements situated in or accessible from such Units or Limited Common Elements, or both, and (iii) for correction of emergency conditions in one or more Units or Limited Common Elements, or both, or casualties to the Common Elements, the Limited Common Elements and/or the Units, it being understood and agreed that the Association and its agents, employees and independent contractors shall take reasonable steps to Minimize any interference with a Unit Owner's
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use of his Unit resulting from the Association's exercise of any rights it may have pursuant to this Section; and
(2) In favor of the Unit Owner benefitted thereby and the Association and its agents, employees and independent contractors, for the installation, repair, maintenance, use, removal and/or replacement of pipes, ducts, electrical, telephone, telegraph or other communication systems and all other utility lines and conduits which are part of the Common Elements and which pass across or through a portion of one or more Units.
c. Structural Support. To the extent necessary, each Unit shall have an easement for structural support over every other Unit in the Condominium and the Common Elements, and each Unit and the Common Elements shall be subject to an easement for structural support in favor of every other Unit in the Condominium and other Common Elements.
6.2. Rights of the Association. In addition to any other rights and powers that the Association may possess pursuant to this Declaration, the Bylaws, the Rules and Regulations and the Act, as they may be amended from time to time, the Association shall have:
a. The right to grant permits, licenses and easements over the Common Elements for utilities and other purposes reasonably necessary or useful for the proper maintenance or operation of the Condominium; and
b. A reasonable right óf entry into any Unit to make emergency repairs and to do other work reasonably necessary for the proper maintenance or operation of the Condominium. Each Unit Owner shall furnish the Association with a set of all keys necessary to gain access to his Unit in the exercise of such rights at the time any locks are changed or installed in the doors to such Unit. The Association shall maintain appropriate security measures to prevent access to such keys by unauthorized persons. The Association shall also have the right (but not the obligation), at its election, to install security locks on doors leading into the Building and to issue copies of keys or entry cards to all Unit Owners requiring access to such areas. The Association is empowered to charge Unit Owners a reasonable fee for the cost of such security cards or keys.
6.3. Declarant's Right to Convey a Unit to the Association. The Declarant reserves the right to convey not more than one (1) Unit to the Association subject to (i) this Declaration, the Bylaws, the Act, covenants, conditions, easements and restrictions of record, and, in general, all matters which buyers of Units from the Declarant take title subject to as set forth in real estate purchase contracts between Declarant and buyers of
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Units and (ii) a mortgage securing a note in an amount not to exceed eighty (80%) percent of the resident discount price of the Unit as initially established by the Declarant, for use as an engineer's or manager's residence or residences or such other lawful use as the Executive Board deems proper. Costs of closing shall be divided between Declarant and the Association in the same manner as described for all purchasers in the initial Public Offering Statement issued by Declarant. From and after such conveyance, the Executive Board shall perform, on behalf of all Unit Owners, all of the obligations appurtenant to such Unit or Units. All costs incurred by the Executive Board after the conveyance with respect to such Unit or Units (including, without limitation, payments of principal and interest due on the notes secured by the mortgages hereinabove described, real estate taxes, Common Expense assessments, repairs, maintenance, decorating, utility charges, and similar expenses) shall be deemed to be and shall be included as Common Expenses assessed pursuant to this Declaration in the same manner as would have been required had such Unit or Units been established as part of the Common Elements rather than as a Unit or Units, for as long as such Unit or Units are owned by the Association.
6.4. Declarant's Easement to Correct Drainage. Declarant reserves an easement on, over and under those portions of the Common Elements not located within a Building for the purpose of maintaining and correcting drainage of surface water in order to maintain reasonable standards of health, safety and appearance. The easement created by this Section 6.4 expressly includes the right to cut any trees, bushes, or shrubbery, to grade the soil, or to take any other action reasonably necessary, following which the Declarant shall restore the affected property as closely to its original condition as practicable. This Section 6.4 is not to be construed, in and of itself, to impose (by implication or otherwise) any obligation up on the Declarant.
6.5. Easement for Use of Walking Path. The Property is subject to the nonexclusive right of the residents of Unit B of the Site Condominium for a non- exclusive, perpetual right and easement of pedestrian access to and enjoyment in common with others of the Walking Path within the Property. The rights and easements of access and enjoyment created hereby shall be subject to the right of the Site Association to adopt rules and regulations governing the use of the Walking Path. The Association and the Unit Owners are benefitted by a similar easement over the Walking Path located within Unit B of the Site Condominium.
6.6. Easement for Use of Fieldcrest Lane. The Property is subject to the nonexclusive right of the residents of Unit B of the Site Condominium for a non- exclusive, perpetual right and easement of pedestrian and vehicular access to and enjoyment in common with others of Fieldcrest Lane (including the adjacent sidewalks and parking areas) within the Property. The rights and easements of access and enjoyment created hereby shall be subject to the right of the Site Association to adopt
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rules and regulations governing the use of Fieldcrest Lane. The Association and the Unit Owners are benefittedby a similar easement over the Fieldcrest Lane located within Unit B of the Site Condominium.
ARTICLE 7
AMENDMENT OF DECLARATION; BYLAWS
7.1. Amendment Generally.
a. This Declaration may be amended only in accordance with the procedures specified in § 3219 of the Act, the other Sections of the Act referred to in § 3219 thereof and the express provisions of this Declaration.
b. Notwithstanding any provision of this Declaration to the contrary, if any amendment is necessary, in the judgment of the Executive Board, to correct any typographical or other errors or omissions of a clerical and immaterial nature in the text of this Declaration and/or appended exhibits, as recorded, then, at any time and from time to time, the Executive Board may effect an appropriate corrective amendment without the approval of the Unit Owners, upon receipt by the Executive Board of an opinion from independent legal counsel to the effect that the proposed amendment is permitted by the terms of this Section 7.1(b). In such event, each Unit Owner shall receive a copy of the corrective amendment.
c. No action to challenge the validity of an amendment adopted by the Association pursuant to this Section may be brought more than one year after the amendment is recorded.
d. Every amendment to the Declaration must be recorded in the Office of the Recorder of Deeds for Lancaster County. An amendment is effective only upon recordation.
7.2. Rights of Certain Posted Mortgagees. Subject to the limitations imposed by § 3221 of the Act and except as set forth below, no amendment of this Declaration or the Bylaws may be made without the prior written approval of Posted Mortgagees if and to the extent that such approval is required by the Act. Approval of holders of first lien Posted Mortgages on Units representing at least 67% of all votes is required if and to the extent that such amendment would have the effect of terminating or abandoning the Condominium (except for termination or abandonment as a result of substantial destruction or a taking by eminent domain).
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Amendments of a material nature to the Declaration or Bylaws must be agreed to by Unit Owners representing at least 67% of the total allocated votes in the Association. In addition, approval must be obtained from first lien mortgage holders representing at least 51% of the votes of Units that are subject to mortgages held by Posted Mortgagees. A change to any of the provisions or requirements in the Declaration or the Bylaws governing the following would be considered as material: voting rights; assessment liens, the priority of assessment liens or increases in assessments that raise previously assessed amounts by more than 25%; reductions in reserves for maintenance, repair, and replacement of Common Elements; responsibility for maintenance and repairs; reallocation of interests in the general or Limited Common Elements or rights to their use; redefinition of Unit boundaries; except with respect to Convertible Real Estate, convertibility of Units into Common Elements or vice versa; except with respect to Convertible Real Estate, expansion or contraction of the Condominium, or the addition, annexation, or withdrawal of property to or from the Condominium; hazard or fidelity insurance requirements; the imposition of restrictions on the leasing of Units; imposition of any restrictions of Unit Owner's right to sell or transfer his or her Unit; a decision by the Association to establish self -management; restoration or repair of the Buildings (after damage or partial condemnation) in a manner other than that specified herein; any action to terminate the legal status of the Condominium after substantial destruction or condemnation occurs; or, any provisions that expressly benefit mortgage holders, insurers, or guarantors. Termination of the legal status of the Condominium for reasons other than substantial destruction or condemnation of the Property shall not be effectuated without the approval of holders of Posted Mortgages that represent at least 67% of the votes of the mortgaged Units. If an amendment is properly sent to a Posted Mortgagee for approval by certified or registered mail with a "return receipt" requested, implied approval shall be assumed when Posted Mortgagee fails to submit a response to such proposal for an amendment within 30 days after the proposal is received.
Notwithstanding the foregoing, corrective amendments may be made by the Executive Board in accordance with Section 3219(f) of the Act.
7.3. Rights of Declarant. No change, modification or amendment which adversely affects the rights, privileges or obligations of the Declarant which are granted under this Declaration, the Bylaws or the Act shall be effective without the prior written consent of the Declarant, until such time as Declarant owns five (5) or fewer Units and Declarant no longer has the right to convert the Convertible Real Estate into Units.
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ARTICLE 8
USE RESTRICTIONS
8.1. Use and Occupancy of Units and Common Elements. The occupancy and use of the Units and Common Elements shall be subject to the following restrictions in addition to any restrictions imposed under the Declaration of Site Condominium:
a. Except as otherwise expressly set forth herein, except for the garages attached to the Units, no part of the Property shall be used for other than housing and the related common purposes for which the Property was designed. Each Unit or any two or more adjoining Units used together shall be used as a residence for a single family or housekeeping unit or such other uses permitted by this Declaration and for no other purposes. If zoning regulations permit professional activities to be conducted within the Units, application may be made by a Unit Owner to the Executive Board for approval to commence such newly permitted use of his Unit. Each such application shall be considered by the Executive Board on an individual basis. Once the Executive Board has given its approval to a particular use of a Unit, it may revoke such approval if the nature and scope of the approved use changes or the use creates unreasonable disturbance within the Condominium of other Unit Owner(s). No Unit Owner shall permit his Unit to be used or occupied for any prohibited purpose.
b. Except as set forth in subparagraph "a" above, no industry, business, trade, occupation or profession of any kind, commercial, religious, educational, or otherwise, designed for profit, altruism, exploration, or otherwise, shall be conducted, maintained, or permitted on any part of the Property. Except for a single small, non - illuminated name sign on the door of a Residential Unit, no signs, advertising or other displays shall be maintained or permitted on any part of the Property except at such location and in such form as shall be determined by the Executive Board. The right is reserved by the Declarant or its agent or agents, until such time as Declarant owns no Units, to place "For Sale" or "For Rent" signs on any unsold or unoccupied Units, and on any part of the Common Elements, and the right is hereby given to any Posted Mortgagee, who may become the Owner of any Unit, to place such signs on any Unit owned by such Posted Mortgagee.
c. There shall be no obstruction of the Common Elements nor shall anything be stored in the Common Elements without the prior written consent of the Executive Board except as herein expressly provided. The use and the covering of the interior surfaces of windows, whether by draperies, shades or other items visible on the exterior of the Buildings, shall be subject to the Rules and Regulations of the Executive Board.
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d. Parking shall not be permitted upon Fieldcrest Lane, except in those areas designated as parking areas upon the Plats and Plans and by corresponding signage upon Fieldcrest Lane. The Site Association shall cause any vehicle improperly parked along Fieldcrest Lane to be towed at the vehicle owner's sole risk and expense.
e. No exterior storage or parking of recreational vehicles, including but not limited to motorcycles, mini -bikes, trail motorcycles, mini -bikes, snow mobiles, campers, motor homes; boats, etc. shall be permitted within the Condominium. No exterior storage or parking or commercial vehicles (except those in the process of making deliveries or providing services) shall be permitted.
f. Nothing shall be done or kept in any Unit or in the Common Elements which will increase the rate of insurance on the Property, or contents thereof, applicable for residential use without the prior written consent of the Executive Board, which consent may be conditioned upon the Unit Owner of such Unit being required to bear the full amount of such increase. No Unit Owner shall permit anything to be done or kept in his Unit or in the Common Elements which will violate any law, statute, ordinance or regulation of any governmental body or which will result in the cancellation of any insurance maintained by the Executive Board. No waste shall be committed in the Common Elements.
g. Unit Owners shall not cause or permit anything to be hung or displayed on the outside of windows or placed on the outside walls of the Buildings or on the Property and no sign, awning, canopy, shutter, radio or television antenna, or satellite dish (except signs as permitted by subparagraph "b" hereof, or except as installed as of the date this Declaration is recorded or as thereafter installed by the Declarant or Executive Board) shall be affixed to or placed upon the exterior walls or roof or any part thereof, without the prior written consent of the Executive Board. No air conditioning unit of whatever type other than those installed as of the date this Declaration is recorded or those thereafter installed by the Declarant may be installed without the prior written permission of the Executive Board.
h. No animals, livestock, fowl or poultry of any kind shall be raised, bred, or kept in any Unit or in the Common Elements, except that household pets may be kept in Units subject to Rules and Regulations adopted by the Executive Board, which Rules or Regulations may exclude any kind of pet by type, category or other classification; provided that permitted household pets shall not be kept, bred, or maintained for any commercial purpose; and provided further that any such authorized pet causing or creating a nuisance or unreasonable disturbance shall be permanently removed from the Property upon three (3) days' written notice from the Executive Board. Notwithstanding the foregoing sentence, the raising, breeding or keeping of any
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dangerous animal, exotic animal, reptile(s) and/or amphibian(s) as a household pet or otherwise is strictly prohibited. All pets shall be registered with the Executive Board.
i. No noxious or offensive activity shall be carried on in any Unit or in the Common Elements, nor shall anything be done therein, either willfully or negligently, which may be or become an annoyance or nuisance to the other Unit Owners or occupants.
j. No benches, chairs or other personal property shall be left on, including baby carriages, playpens, bicycles, wagons or toys or vehicles be permitted on, any part of the Common Elements without the prior written consent of, and subject to any regulations of the Executive Board.
k. No Unit Owner shall overload the electric wiring in the Buildings, or operate any machines, appliances, accessories or equipment in such manner as to cause, in the judgment of the Executive Board, an unreasonable disturbance to others. Nor shall any Unit Owner connect any machine, appliance, accessory or equipment to the heating system or plumbing system without the prior written consent of the Executive Board. Installation, removal, reconstruction or repair of any electrical lighting and power circuit or electrical outlet box or terminal device included in such outlet box, or any item of heating or air conditioning equipment, any of which is located within an interior partition of a Unit, may be undertaken by the Unit Owner of such Unit only after application has been made to and written approval has been received from the Executive Board. Such approval shall be granted only if the work performed shall be of similar or superior quality to that present throughout the Buildings and shall be performed by qualified personnel. The cost of such installation, removal, reconstruction or repair whether undertaken by a Unit Owner or by the Executive Board (under the same procedures utilized for Common Elements) shall be borne by the Unit Owner of the Unit benefitted thereby.
1. No Unit Owner shall place or store anything on the balcony, deck, patio, porch or terrace Limited Common Element appurtenant to his Unit, nor shall such balcony, deck, patio, porch or terrace be decorated, painted or otherwise altered, if, in the opinion of the Executive Board, such placement, storage, decorating, painting or alteration would create an unsightly condition.
m. The owner of a Unit shall be responsible for maintaining such Unit in good order and repair, at the expense of such owner, including (but not limited to) cleaning and replacing glass panes in any window or door serving such Unit.
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n. The owner of a Unit shall be responsible for the cleanliness of any Limited Common Element serving such Unit at the expense of such Unit Owner. The Association shall be responsible for the cleanliness of the Limited Common Elements (serving more than one Unit), at the expense of the Owners of the Units appurtenant to such Limited Common Elements.
o. Unit Owners may not install window air -conditioners, exhaust fans or any other item which protrudes through any window serving the Unit without the prior written approval of the Executive Board.
p. This Article 8 shall not be construed to prevent or prohibit a Unit Owner from maintaining his personal professional library, keeping his personal business or professional records or accounts, handling his personal business or professional telephone calls, or conferring with business or professional associates, clients or customers, in his Unit.
q. Reasonable Rules and Regulations, not in conflict with the provisions of this Declaration, concerning the use and enjoyment of the Property, may be promulgated from time to time by the Executive Board, subject to the right of the Association to change such Rules and Regulations. Copies of the then current Rules and Regulations and any amendments thereto shall be furnished to all Unit Owners by the Executive Board promptly after the adoption of such Rules and Regulations or any amendments thereto.
ARTICLE 9
MORTGAGES
9.1. In General. A Unit Owner may not voluntarily encumber or subject his or its Unit to any lien, other than the lien of a Posted Mortgage. Whether or not they expressly so state, all mortgages and the obligations secured thereby shall be deemed to provide, generally, that the mortgage, and the rights and obligations of the parties thereto, shall be subject to the terms and conditions of the Act and this Declaration and shall be deemed to provide specifically, but without limitation, that the mortgagee shall have no right (a) to participate in the adjustment of losses with insurers or in the decision as to whether or not or how to repair or restore damage to or destruction of the Property, (b) to receive or apply the proceeds of insurance to the reduction of the mortgage debt or otherwise, except in the event and to the extent either of a distribution of such proceeds to the Owner of the Unit encumbered by such mortgage pursuant to § 3312(g) of the Act or of other insurance proceeds in excess of the cost of repair or restoration being received by the Owner of the Unit encumbered by such mortgage or (c) to accelerate the mortgage
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debt or to have any other remedies by virtue of waste or alleged waste or other conditions occurring anywhere on the Property other than within the affected Unit; and the obligation secured shall be prepayable, without penalty, upon the happening of any termination of the Condominium or determination not to restore or replace the affected Unit. No Unit Owner shall deliver any mortgage, or any obligation to be secured thereby, unless it has first notified the Executive Board of the name and address of the proposed. mortgagee so as to constitute the mortgage of a Posted Mortgage. Upon receipt of such notice of a Posted Mortgage, the Secretary of the Executive Board shall instruct the insurer of the Property to add the name of the Posted Mortgagee to the mortgagee loss payable provision of the hazard insurance policy covering the Property and to provide such Posted Mortgagee with a Certificate of Insurance showing that the Posted Mortgagee's name has been so added. The Secretary shall maintain a register of such Posted Mortgages, showing the names and addresses of the Posted Mortgagees.
ARTICLE 10
RIGHTS OF POSTED MORTGAGEES
10,1. Reports and Notices. Upon the specific written request of a Posted Mortgagee or its servicer, insurer or guarantor (all of which are deemed to be Posted Mortgagees for purposes of notices and rights to information) to the Executive Board, the Posted Mortgagee shall be entitled to receive some or all of the following as designated in the request.
a. Copies of the current Declaration, Bylaws and Rules and Regulations and copies of budgets, notices of assessment, or any other notices or statements provided under this Declaration by the Executive Board to the Owner of the Unit covered by the Posted Mortgage;
b. A audited financial statement of the Association which shall be prepared annually for the Association and distributed to the Unit Owners and available within 120 days of the end of the fiscal year of the Association;
c. Copies of notices of meetings of the Association and the right to designate a representative to attend such meetings;
d. Notice of the decision of the Association to make any material amendment to this Declaration or to take any other action which requires the consent of a specified percentage of Posted Mortgagees;
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e. Notice of damage to or destruction of any Unit encumbered by a Posted Mortgage held by the requesting Posted Mortgagee or any material part of the Common Elements;
f. Notice of the commencement of any condemnation or eminent domain proceedings with respect to any part of the Property;
g. Notice of any default by the owner of the Unit which is subject to the Posted Mortgage, where such default is not cured by the Unit Owner within sixty (60) days after the giving of notice by the Association to the Unit Owner of the existence of the default;
h. The right to examine the books and records of the Association at any reasonable time;
i. Notice of any decision by the Executive Board or the Association to terminate professional management and assume self -management of the Property; or
j. Notice of lapse, cancellation or material modification of any Association insurance policies.
The request of a Posted Mortgagee or its servicer shall specify which of the above items it desires to receive and shall indicate the address to which any notices or documents shall be sent by the Executive Board. The Executive Board need not inquire into the validity of any request made by a Posted Mortgagee hereunder.
The Executive Board may impose charges on Unit Owners for performing the services described in this Section 10.1.
Failure to comply with the requirements set forth above shall in no way invalidate otherwise proper actions of the Association and the Executive Board.
10.2. Condemnation and Insurance Proceeds. No provision of this Declaration shall give a Unit Owner, or any other party, priority over any rights of the Posted. Mortgagee(s) of a Unit pursuant to a Posted Mortgage(s) in the case of a distribution to such Unit Owner of insurance proceeds or condemnation awards for loss to or taking of one or more Units and/or Common Elements.
10.3. FNMA and FHLMC Requirements. If one or more mortgages on Units is held by the Federal National Mortgage Association ("FNMA") or the Federal Home Loan Mortgage Corporation ("FHLMC") and any action proposed by the Association requires
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the approval pursuant to the then applicable regulations of FNMA or FHLMC or a specified percentage of Unit Owners or the holders of a specified percentage of Posted Mortgages, or both, then such action shall not be taken until such requirement has been met.
10.4. Rights of Posted Mortgagee under Site Condominium Declaration. The rights of a Posted Mortgage holder under the Site Condominium Declaration are governed by that document.
ARTICLE 11
REAL ESTATE TAXES
11.1. Real Estate Taxes. It is understood that real estate taxes are to be separately assessed and taxed to each Unit Owner for his Unit and its corresponding Percentage Interest in the Common Elements, as provided in the Act. For the year in which this Declaration is first recorded, real estate taxes shall be apportioned between Declarant and each Unit Owner on a calendar year basis. In the event that real estate taxes for any year are not separately assessed against each Unit Owner, but rather are assessed against the Property as a whole, then each Unit Owner shall pay his proportionate share thereof in accordance with his respective Percentage Interest in the Common Elements, and, in said event, such taxes shall be a Common Expense. The Executive Board shall have authority to advance Association funds in payment of all or a portion of such taxes pending receipt from the respective Unit Owners of their proportionate share thereof.
ARTICLE 12
POWERS OF THE EXECUTIVE BOARD
12.1. Additional Powers. In addition to the powers set forth in the Act and elsewhere herein, the Executive Board shall have the following additional powers:
a. To appoint committees of the Board (which need not include any Board Members) and to delegate to such committees the Executive Board's authority to carry out certain duties of the Board, subject to the approval and control of the Board.
b. To engage the services of a manager or managing agent, who may be any person, firm or corporation, upon such terms and compensation as the Executive Board deems fit, and to remove such manager or managing agent at any time, provided any agreement with such manager or managing agent shall extend for not more than one
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(1) year and must be terminable by either party to such agreement without cause and without payment of a termination fee, upon ninety (90) days' or less prior written notice.
c. To engage the services of any persons (including, but not limited to,
accountants and attorneys) deemed necessary by the Executive Board at such compensation as is deemed reasonable by the Executive Board, in the operation, repair, maintenance and management of the Property, or in connection with any duty, responsibility or right of the Executive Board and to remove, at any time, any such personnel.
d. To pay any amount necessary to discharge any mechanic's lien or other encumbrance levied against the Property or any part thereof which may in the opinion of the Executive Board constitute a lien against the Property or against the Common Elements, rather than merely against the interest therein of particular Unit Owners. Where one or more Unit Owners are responsible for the existence of such lien, they shall be jointly and severally liable for the cost of discharging it and any costs incurred by the Executive Board by reason of said lien or liens shall be specially assessed to said Unit Owners.
e. To expend funds for the maintenance and repair of any Unit or any other portion of the Property which a Unit Owner is obligated to maintain or repair under the terms hereof, if such maintenance or repair is necessary, in the discretion of the Executive Board, to protect the Common Elements, or any other portion of the Property, and the owner of said Unit has failed or refused to perform said maintenance or repair within a reasonable time after written notice of the necessity of said maintenance or repair delivered by the Executive Board to said Unit Owner; provided that the Executive Board shall levy a special assessment against such Unit for the cost of said maintenance or repair.
f. To establish user charges with respect to the use of the outdoor parking spaces and other amenities. Such charges shall be billed to the Unit Owner who, or whose guest, makes use of such facilities. Nothing herein contained shall require the establishment of user charges with respect to all or any one or more of such amenities. Use of all such amenities shall be subject to the Rules and Regulations of the Executive Board.
g. To establish, levy and collect a initial contribution fee which shall be due upon the conveyance of a Unit from a non -Declarant Unit Owner to another non - Declarant Unit Owner. The initial contribution fee shall not exceed four (4) months of regular Common Expense Assessments.
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h. To establish, levy and collect reasonable fines for the violations of the Declaration, By -Laws, and/or Rules and Regulations.
i. To collect reasonable attorneys fees, in addition to fines, incurred by the Association to enforce the provisions of this Declaration, By -Laws, and/or Rules and Regulations.
j. In the event more than one Unit share a common utility meter or if a portion of the Common Elements and one or more Units share a common utility meter, to determine the proper allocation of the cost of the utility service between or among the recipients of such utility service which determination shall be conclusive and binding.
k. In the event of any condemnation, to represent the Unit Owners in any proceedings, negotiations, settlements or agreements with the condemning authority.
1. To borrow money on the credit of the Association and, as security for any such borrowing, to assign the Association's rights to receive future income (including assessments) and/or pursuant to § 3318 of the Act to encumber or convey the Common Elements, or any portion thereof.
m. To grant permits, licenses and easements over the Common Elements subject to the limitations set forth in § 3302(a)(9) of the Act.
n. To accept the deed and to execute, acknowledge and deliver the note, mortgage and related documents to effectuate the transactions described in Section 6.3 above.
n. To exercise the rights of the Association as a "Unit Owner" under the Site Condominium Declaration, including but not limited to voting, and the appointment of three of the 5 members of the Site Association Executive Board, provided that the individuals appointed to the Site Association Executive Board shall be members of the Association's Executive Board.
o. To fulfill the obligations of the Association under the Site Condominium Declaration, including but not limited to the payment of Site Condominium Assessments and other charges payable to the Site Association.
12.2. Disputes. In the event of any dispute or disagreement between any Unit Owners relating to the Property, or any questions of interpretation or application of the provisions of this Declaration, the Plats and Plans, the Bylaws or the Rules and Regulations, the determination thereof by the Executive Board shall be final and binding
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on each and all such Unit Owners. The Executive Board shall have the authority to seek a
declaratory judgment or other appropriate judicial relief or order to assist it in carrying out its responsibilities under this Section 12.2. All costs of obtaining such a judgment shall be borne by the disputants, or in the absence of disputants, by the Association as a Common Expense.
12.3. Trash Removal, Snow Removal and Other Maintenance. The Executive Board shall have the power and obligation to enter into contracts for trash removal, snow removal, street light maintenance and other general maintenance. The cost of trash removal, snow removal and landscaping shall be General Common Expenses.
12.4. Voting and Election of Site Association Executive Board Members. The Executive Board of the Association shall vote in all matters, including but not limited to the election of three (out of 5) members to the Site Association Executive Board, to be determined by the Site Condominium Unit Owners. Individual Unit Owners of the Condominium created under this declaration shall have no voting or notice rights under the Site Condominium Declaration.
ARTICLE 13
BUDGETS; COMMON EXPENSES; ASSESSMENTS AND ENFORCEMENT
13.1. Annual Assessments. All regular Common Expense assessments made in order to meet the requirements of the Association's annual budget shall be adopted and assessed on an annual basis payable in equal monthly installments in advance on the first day of each month. Special assessments shall be due and payable in one or more monthly installments, in advance, on the first day of each month, as determined by the Executive Board. Insurance costs of the Association shall be assessed as part of General Common Expenses. The Site Condominium Assessment and other charges payable by the Association to the Site Association shall be assessed as part of the General Common Expenses (less amounts payable by the Declarant under Section 18.4).
The Declarant shall pay common expense assessments on all declared but unconstructed Units [tom the date common expense assessments begin, subject to the limitation that Declarant shall not be required to pay any portion of the common expense assessment upon unconstructed Unit(s) att,ibutable to capital reserves (as described in Section 13.3 below) or the insurance and maintenance of the buildings within the Condominium (i.e. Declarant shall pay for the percentage of operating expenses
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attributable to unconstructed Units, e.g. snow removal, landscaping, office supplies, management fees, etc., but excluding building maintenance).
13.2. Subordination of Certain. Charges. Any fees, charges, late charges, fines and interest which may be levied by the Executive Board pursuant to §§ 3302(a)(10), (1 l) and (12) of the Act and that have not been reduced to liens against a Unit at the time of recordation of a Posted Mortgage, shall be subordinate to the lien of a Posted Mortgage on a Unit.
13.3. Reserves. Commencing not later than the first day of the calendar month during which the Common Expense assessments begin, the Association shall establish accounts to create through monthly assessments over a reasonable period of time and thereafter to maintain an adequate reserve fund for maintenance, repair and replacement of the Common Elements that are anticipated to require replacement, repair or maintenance on a periodic basis and to cover deductible amounts in property insurance policies. The reserve funds shall be funded initially by the inception fees paid to the Owners' Association at the time of settlement on a Unit. Each annual budget for Limited Expenses shall include amounts reasonably considered by the Executive Board to be sufficient as reserves for maintenance, repairs, replacements and contingencies. Extraordinary expenditures not originally included in the annual budget which may become necessary during any year may be charged first against such reserves. In addition, the Executive Board shall have the right to segregate all or any portion of the reserves for any specific replacement or contingency upon such conditions as the Executive Board deems appropriate.
At the closing for the initial transfer of title from the Declarant to a non -Declarant purchaser of each Unit and each subsequent transfer of the Unit, the Association shall collect from such purchasers an amount equal to four (4) months (calculated pursuant to the then current Association budget) installments of estimated Common Expenses assessed against the Unit transferred, which monies shall be deposited into an initial working capital fund under control of the Association. At the time of transfer of control of the Association by the Declarant, the Declarant shall pay such sums attributable to unsold Units to the Association (which shall deposit such funds in a segregated account) and may be reimbursed by purchasers of such Units when unsold Units are sold. While Declarant controls the Association, it cannot use any of the working capital funds to defray its expenses, reserve contributions, or construction costs or to make up any budget deficits. No Unit Owner is entitled to a refund of these monies by the Association upon the subsequent conveyance of his Unit or otherwise. Such payments do not constitute advance payments of regular assessments.
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attributable to unconstructed Units, e.g. snow removal, landscaping, office supplies, management fees, etc., but excluding building maintenance).
13.2. Subordination of Certain Charges. Any fees, charges, late charges, fines and interest which may be levied by the Executive Board pursuant to §§ 3302(a)(10), (11) and (12) of the Act and that have not been reduced to liens against a Unit at the time of recordation of a Posted Mortgage, shall be subordinate to the lien of a Posted Mortgage on a Unit.
13.3. Reserves. Commencing not later than the first day of the calendar month during which the Common Expense assessments begin, the Association shall establish accounts to create through monthly assessments over a reasonable period of time and thereafter to maintain an adequate reserve fund for maintenance, repair and replacement of the Common Elements that are anticipated to require replacement, repair or maintenance on a periodic basis and to cover deductible amounts in property insurance policies. The reserve funds shall be funded initially by the inception fees paid to the Owners' Association at the time of settlement on a Unit. Each annual budget for Limited Expenses shall include amounts reasonably considered by the Executive Board to be sufficient as reserves for maintenance, repairs, replacements and contingencies. Extraordinary expenditures not originally included in the annual budget which may become necessary during any year may be charged first against such reserves. In addition, the Executive Board shall have the right to segregate all or any portion of the reserves for any specific replacement or contingency upon such conditions as the Executive Board deems appropriate.
At the closing for the initial transfer of title from the Declarant to a non -Declarant purchaser of each Unit and each subsequent transfer of the Unit, the Association shall collect from such purchasers an amount equal to four (4) months (calculated pursuant to the then current Association budget) installments of estimated Common Expenses assessed against the Unit transferred, which monies shall be deposited into an initial working capital fund under control of the Association. At the time of transfer of control of the Association by the Declarant, the Declarant shall pay such sums attributable to unsold Units to the Association (which shall deposit such funds in a segregated account) and may be reimbursed by purchasers of such Units when unsold Units are sold. While Declarant controls the Association, it cannot use any of the working capital funds to defray its expenses, reserve contributions, or construction costs or to make up any budget deficits. No Unit Owner is entitled to a refund of these monies by the Association upon the subsequent conveyance of his Unit or otherwise. Such payments do not constitute advance payments of regular assessments.
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At each and every subsequent conveyance of a Unit, except to the Declarant or a
successor or assign of any special Declarant rights, the Unit Owner acquiring any Unit shall be required to make anon -refundable initial contribution to the Association as
established by the. Executive Board pursuant to Article 12.1.g. The general purpose of the
this contribution is to provide a reserve fund for the Association, which may be used for capital expenses or operating expenses, in the discretion of the Association. Such payment shall not constitute advance payment of regular assessments. This initial contribution shall be a lien against the Lot in the same manner as any Common Expense or Limited Common Expense assessment.
13.4. Accounting. On or before the first (1st) day of April of each calendar year commencing 2003, the Executive Board shall supply to all Unit Owners an itemized accounting of the Common Expenses for the preceding calendar year actually incurred and paid together with a tabulation of the amounts collected pursuant to the annual budget or assessments and leases and sales of property owned or managed by the Executive Board on behalf of the Association, and showing the net excess or deficit of income over expenditures plus reserves.
13.5. Acceleration. If a Unit Owner is in default in the payment of the aforesaid charges or monthly installments of assessments for sixty (60) days, the Executive Board may, in addition to all other remedies in the Act or Declaration contained, accelerate all other charges and monthly installments of assessments to become due for the next twelve (12) months on the basis of the budget for the calendar year in which such default occurs and assuming the same budget for the following year; provided, however, a foreclosing Posted Mortgagee shall be entitled to automatic subordination of such sums in excess of the amounts given priority in lien or payment over mortgage liens in the Act.
13.6. Collection Charges. Any delinquent Owner shall also be obligated to pay (i) all expenses of the Board, including reasonable attorneys' fees, incurred in the collection of the delinquent assessments, fees, charges, late charges, fines and interest which may be levied by the Executive Board pursuant to §§ 3302(a)(10), (11) and (12) by legal proceedings or otherwise, and (ii) any amounts paid by the Board for taxes or on account of superior liens or otherwise to protect its lien, which expenses and amounts, together with accrued interest, shall be deemed to constitute part of the delinquent assessments and shall be collectible as such, subject to Section 13.2 above.
13.7. Confession of Judgment. IN ORDER TO EXPEDITE THE EXECUTIVE BOARD'S COLLECTION OF ANY DELINQUENT ASSESSMENTS, TO THE EXTENT PERMITTED BY LAW, EACH UNIT OWNER (BY THE ACCEPTANCE OF THE DEED TO HIS UNIT) SHALL BE DEEMED TO HAVE APPOINTED ANY ONE OR MORE EXECUTIVE BOARD MEMBERS THE A n ORNEY-IN-FACT FOR
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SUCH UNIT OWNER TO CONFESS JUDGMENT AGAINST SUCH UNIT OWNER IN ANY COURT OF COMPETENT JURISDICTION IN PENNSYLVANIA FOR ANY SUCH UNPAID ASSESSMENT(S) OR INSTALLMENTS THEREOF AND ALL COSTS OF COLLECTION, INCLUDING REASONABLE ATTORNEYS' FEES, WHICH APPOINTMENT (BEING FOR SECURITY) SHALL BE IRREVOCABLE; AND FOR SO DOING A COPY OF THIS ARTICLE 13 AND SAID DEED, BOTH VERIFIED BY AFFIDAVIT, SHALL BE A SUFFICIENT WARRANT. THE AUTHORITY GRANTED HEREIN TO CONFESS JUDGMENT SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL THE DECLARATION SHALL BE TERMINATED.
13.8. Surplus. The budget of the Association shall segregate Limited Expenses from General Common Expenses and surplus shall be credited and applied as provided in § 3313 of the Act.
ARTICLE 14
LEASING
14.1. Restrictions. A Unit Owner may lease or sublease his Unit (but not less than his entire Unit) at any time and from time to time provided that (except for a lease or sublease made by a Posted Mortgagee which is either in possession or is a purchaser at judicial sale): (1) no Unit may be leased or subleased for transient or hotel purposes or for an initial term of less than one (1) month; (2) no Unit may be leased or subleased without a written lease or sublease; (3) a copy of such lease or sublease shall be furnished to the Executive Board within ten (10) days after execution thereof; and (4) the rights of any lessee or sublessee of the Unit shall be subject to, and each such lessee or sublessee shall be bound by and the Association may enforce against the lessee or sublessee, the covenants, conditions and restrictions set forth in the Declaration, Bylaws and Rules and Regulations and a default thereunder shall constitute a default under the lease or sublease; provided, however, that the foregoing shall not impose any direct liability on any lessee or sublessee of a Unit to pay Common Expense assessments on behalf of the Owner òf that Unit. The foregoing restrictions shall not apply to the Declarant or Units owned by the Declarant.
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ARTICLE 15
INSURANCE; RELEASES; RESTORATION
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15.1. Generally. The Executive Board shall acquire (if and to the extent available) and pay for insurance as required by the Act in addition to and subject to the
fºIIºwing:
a. Such insurance as the Executive Board deems advisable in the operation, and for the protection, of the Common Elements and the Units, including, without limitation, flood insurance to the extent appropriate and available.
b. The amount of property insurance obtained pursuant to the Act shall be equal to the full insurable value replacement cost of the insured property (excluding land, foundations, excavations or other items that are usually excluded from coverage), without deduction for depreciation. Full insurable value replacement cost coverage is to be assured by either (i) a Guaranteed Replacement Cost Endorsement (pursuant to which the insurer agrees to replace the insurable property regardless of the cost) and an Agreed Amount Endorsement (which waives the requirement for coinsurance) if a coinsurance clause is included or (ii) a Replacement Cost Endorsement (pursuant to which the insurer agrees to pay up to 100% of the property's insurable replacement cost, but no more) and an Agreed Amount Endorsement if a coinsurance clause is included. It shall insure against all risks of direct physical loss commonly insured against and covered by the standard "all risk" endorsement, if available. If an "all risk" endorsement is not available, a "broad form" policy will be obtained. Such insurance policy(ies) may, at the option of the Board, contain a "deductible" provision in an amount determined by the Board but not to exceed (unless a higher amount is required by Pennsylvania law) the lesser of $10,000 or one (1%) percent of the policy face amount. Property insurance policies shall also include (i) an inflation guard endorsement (when available), (ii) a building ordinance or law endorsement (providing for contingent liability from operation of building laws, demolition costs and increased cost of reconstruction) if enforcement of any building, zoning or land use law will result in loss or damage, increased cost of repairs or reconstruction or additional demolition or removal costs, and (iii) steam boiler and machinery coverage endorsement if any Building has central heating or cooling, which provides that the insurer's minimum liability per accident at least equals the lesser of $2,000,000 (as revised from time to time by the Executive Board) or the insurable value of the building housing the boiler or machinery. Policies will contain standard mortgage clauses or endorsements naming either specifically or generically the Posted Mortgagees or their servicers followed by "its successors and assigns." Property insurance shall be written by carriers (or reinsured by companies) that at least meet the requirements for a Best's rating of B or financial performance index of 6 or an A rating from Demotech, Inc.
c. Each Unit Owner and the Executive Board hereby waives and releases any and all claims which he or it may have against any other Unit Owner, the Association, the Executive Board and members thereof; the Declarant and their respective
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employees and agents, for damage to the Common Elements, the Units, or to any personal property located in the Units or Common Elements, caused by fire or other casualty or any act or omission of any such party to the extent that such damage is covered by fire or other form of hazard insurance.
d. If the act or omission of a Unit Owner, or of a member of his family, a household pet, guest, lessee, occupant or visitor of such Unit Owner, shall cause damage to the Common Elements or to a Unit or Units owned by others, or maintenance, repairs or replacements shall be required which would otherwise be a Common Expense, then such Unit Owner shall pay for such damage and such maintenance, repairs and replacements, as may be determined by the Executive Board, to the extent such payment is not waived or released under the provisions of subparagraph "c" above. For purposes of collection, in the event the responsible Unit Owner shall fail to reimburse and/or pay the Association the cost and expense of any repair, maintenance or replacement as required by this paragraph, the unpaid expenses shall be treated as an "assessment" in accordance with the provisions of Article 13 and collected in accordance therewith.
e. Any release or waiver referred to in subparagraphs "c" and "d" hereof shall be valid only if such release or waiver does not affect the right of the insured under the applicable insurance policy to recover thereunder. The Unit Owners and the Executive Board, with regard to the insurance carried by each of them, shall use their best efforts to see that their insurance carriers agree that such release or waiver does not affect their rights to recover.
f. If the Executive Board fails within sixty (60) days of an insured loss to initiate a claim for damages recoverable under the property insurance policy(ies) obtained pursuant to the Act, the holder of any Posted Mortgage may initiate such a claim on behalf of the Board. The Executive Board, shall from time to time at such times as it shall deem appropriate, cause an appraisal of the Property to be made for the purpose of determining the current full insurable replacement value of the insured property, without considering depreciation, and the Board shall change the amount of hazard insurance on the Property to the amount of the then current full insurable replacement value of the Property as established by such appraisal.
g. The Association's property insurance shall cover fixtures, equipment, and other personal property and supplies of the Association and fixtures, equipment and other personal property within Units as of the date of initial sale of the Unit by the Declarant, whether or not part of the Common Elements. Each Unit Owner, other than the Declarant, shall notify the Board in writing of any additions, alterations or improvements to his Unit and he shall be responsible for any deficiency in any insurance loss recovery resulting from his failure so to notify the Association. The Board shall use
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its reasonable efforts to obtain insurance on any such additions, alterations or improvements if such Unit Owner requests it to do so and if such Unit Owner shall make arrangements satisfactory to the Board to reimburse it for any additional premiums attributable thereto; and in the absence of insurance on such additions, alterations or improvements, the Board shall not be obligated to apply any insurance proceeds to restore the affected Unit to a condition better than the condition existing prior to the making of such additions, alterations or improvements.
h. Commercial general liability and property damage insurance as required by the Act shall be in such limits as the Board shall deem desirable provided that such limit shall not be less than Three Million ($3,000,000.00) Dollars per occurrence, for bodily injury and/or property damage, insuring the Association, the Board members, the managing agent, if any, and their respective agents and employees, and the Unit Owners from any liability to the public or to the Unit Owners, their tenants or invitees, relating in any way to the ownership and/or use of the Property or any part thereof. The policy shall cover bodily injury and property damage that results from the operation,. maintenance, or use of the Condominium's Common Elements, and any legal liability that results from lawsuits related to employment contracts in which the Association is a party. If the policy does not include "severability of interest" in its terms, it must include a specific endorsement to preclude the insurer's denial of a Unit Owner's claim because of negligent acts of the Association or of other Unit Owners.
i. The Board may obtain such other forms of insurance as the Board shall elect to effect including Board members' and officers' liability insurance and such Worker's Compensation insurance as may be necessary to comply with applicable laws.
j. The Association shall obtain blanket fidelity insurance to protect against dishonest acts on the part of the Board members, officers, agents, employees, volunteers and all others who handle, or are responsible for handling, funds of the Association. Such insurance shall name the Association as the insured and shall be in such amount as the Board deems appropriate, but not less than the greater of (i) the maximum funds that will be in the custody of the Association or its agents at any dine, or (ii) the sum of three (3) months' Common Expense assessments against all Units, plus the amount of the Association reserve funds. Such insurance shall contain a waiver of defense based upon the exclusion of persons who serve without compensation from the definition of "employee" or such endorsement or provision as shall accomplish the same result. Any managing agent shall be required to carry its own insurance with the same coverage as set forth above.
k. Except as otherwise provided in this Declaration, premiums for all insurance obtained or maintained by the Board, fees and expenses of the insurance
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trustee, if any, and the cost of any appraisal which the Board deems advisable in connection with any insurance, shall be Common Expenses.
1. The Board shall use its best efforts to secure policies providing that the policies cannot be cancelled, invalidated or suspended on account of the conduct of any one or more individual Unit Owners or any officer or employee of the Board or managing agent, if any, without a prior demand in writing that the Board or managing agent, as the case may be, cure the defect and without a reasonable period of time thereafter in which to cure the same. Association policies shall provide that the policy will be primary, even if a Unit Owner has other insurance that covers the same loss. The policy must require the insurer to notify in writing the Association, any Insurance Trustee and each mortgagee named in a mortgage clause at least ten (10) days before it cancels or substantially changes coverage.
m. Insurance coverage on the furnishings and other items of personal property belonging to a Unit Owner and insurance for his personal liability to the extent not covered by insurance maintained by the Board shall be the responsibility of each such Unit Owner.
n. All physical damage insurance policies purchased by the Executive Board shall be for the benefit of and name as insured the Association for the use and benefit of the Unit Owners and their Posted Mortgagees, as their interests may appear, and shall provide that, with respect to any single loss, if the proceeds thereof exceed $250,000, then all such proceeds shall be paid in trust to such lending institution in Lancaster County with trust powers as may be designated by the Executive Board (which trustee is herein referred to as the Insurance Trustee) and the policy loss payable provision shall provide that such proceeds are payable to the Insurance Trustee as trustee for each Unit Owner and each Unit's mortgagees. If such proceeds do not exceed $250,000, then the policy loss payable provision shall provide that all such proceeds shall be paid to the Executive Board to be applied pursuant to the Act as trustee for each Unit Owner and each Unit's mortgagees. If proceeds are payable to the Insurance Trustee, the Executive Board shall enter into an Insurance Trust Agreement with the Insurance Trustee which may provide that the Insurance Trustee shall not be liable for payment of premiums, the renewal of the policies, the sufficiency of coverage, the form of contents of the policies, the correctness of any amounts received on account of the proceeds of any insurance policies nor for the failure to collect any insurance proceeds. The sole duty of the Insurance Trustee shall be to receive such proceeds as are paid to it and to hold the same in trust for the purposes elsewhere stated in this Declaration and the Act, for the benefit of the insureds and their beneficiaries thereunder.
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o. The name of the insured under each policy required pursuant to this Article 15 shall be stated in form and substance similar to the following:
Fieldcrest Townhome Condominium Association, for the use and benefit of the individual owners, or their authorized representatives, of the Condominium Units contained in Fieldcrest Townhomes at Meadow Valley, A Condominium.
p. If any part of the improvements in the Condominium is in a special flood hazard area, the Association shall maintain a "master" or "blanket" policy of flood insurance, the premiums to be paid as common expenses. The amount of flood insurance shall be equal to the lesser of 100% of the insurable value of the improvements or the maximum coverage available under the appropriate National Flood Insurance Administration program. The maximum deductible amount for such policy shall be the lesser of $5,000 or 1% of the policy face amount.
15.2. Repairs and Reconstruction After Fire or Other Casualty.
a. When Repair and Reconstruction are Required. Except as otherwise provided in subparagraph d of this § 15.2, in the event of damage to or destruction of the Buildings or any part thereof as a result of fire or other casualty, the Executive Board, under the direction of the Insurance Trustee if an Insurance Trustee is required, shall arrange for and supervise the prompt repair and restoration of the Buildings as required by the Act. Notwithstanding the foregoing, each Unit Owner shall have the right to supervise the redecorating of his own Unit.
b. Procedure for Reconstruction and Repair.
(i) Cost Estimates. Immediately after a fire or other casualty causing damage to the Buildings, the Executive Board shall obtain reliable and reasonably detailed estimates of the cost of repairing and restoring the Buildings as required by the Act to a condition as good as that existing before such casualty. Such costs may also include professional fees and premiums for such bonds as the Executive Board or Insurance Trustee (if any) determines to be necessary.
(ii) Assessments. If the proceeds of insurance are not sufficient to defray such estimated costs of reconstruction and repair, or if upon completion of reconstruction and repair the funds for the payment of the costs thereof are insufficient, the amount necessary to complete such reconstruction and repair may be obtained from the appropriate reserve for replacement funds and/or shall be deemed a Common Expense (and/or Limited Expense) and special monthly assessments therefor shall be levied. The
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funds shall be paid out of the General Common Expense fund, one or more of the Limited Expense funds, or both, depending on whether or not the source of the shortfall can be properly determined in the opinion of the Executive Board. If such source cannot be so determined, then the shortfall shall be allocated among the funds referred to above in proportion to the relative costs of restoration in each of the categories. Costs of restoration of a Unit to the extent required to be done by the Executive Board shall be paid out of the General Common Expense Fund unless the shortfall is due to failure of the Unit Owner to notify the Association of improvements made to his Unit, in which event the shortfall so caused shall be assessed against the particular Unit Owner. Unit Owners may apply the proceeds from their individual property insurance policies, if any, to the share of such Common Expense or Limited Expense, or both, as may be assessed tó them. The Executive Board shall be responsible for restoring the Property only to substantially the same condition as it was immediately prior to the damage, and each Unit Owner shall personally assume the additional expense of any improvements to his Unit which he desires, to restore it beyond such condition.
(iii) Plans and Specifications. Any such reconstruction or repair shall be substantially in accordance with the construction of the Property as it existed immediately prior to the casualty.
c. Disbursements of Construction Funds.
(i) Construction Fund and Disbursement. The proceeds of insurance collected on account of casualty, and the sums received by the Executive Board or Insurance Trustee from collections of assessments against Unit Owners on account of such casualty, shall constitute a construction fund which shall be disbursed in payment of the costs of reconstruction and repair in the following manner:
(A) If the estimated cost of reconstruction and repair is less than $250,000, then the construction fund shall be disbursed in payment of such costs upon order of the Executive Board.
(B) If the estimated cost of reconstruction and repair is $250,000, or more, then the construction fund shall be disbursed in payment of such costs upon approval of an architect qualified to practice in Pennsylvania and employed by the Insurance Trustee to supervise such work, payment to be made from time to time as the work progresses. The -architect shall be required to furnish a certificate giving a brief description of the services and materials furnished by various contractors, subcontractors, materialmen, the architect and other persons who have rendered services or furnished materials in connection with the work and stating that: (a) the sums requested by them in payment are justly due and owing and that such sums do not exceed the value of the
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services and materials furnished; (b) there is no other outstanding indebtedness known to such architect for the services and materials described; and (c) the cost as estimated by such architect for the work remaining to be done subsequent to the date of such certificate does not exceed the amount of the construction fund remaining after payment of the sum so requested, taking into account retainage.
(ii) Surplus. It shall be presumed that the first monies disbursed in payment of the cost of reconstruction and repair shall be from insurance proceeds and, if there is a balance in the construction fund after the payment of all of the costs of the reconstruction and repair for which the fund is established, such balance shall be used first to reimburse Unit Owners for sums paid to cover shortfalls under subparagraph b (ii) above in proportion to the sums so paid until full reimbursement and any remaining balance shall be divided among all Unit Owners in proportion to their Percentage Interests and shall be distributed in accordance with the priority of interests at law or in equity in each Unit.
(iii) Certificate. The Insurance Trustee shall be entitled to rely upon a certificate executed by the President or Vice President, and the Secretary, certifying: (i) whether the damaged Property is required to be reconstructed and repaired; (ii) the name of the payee and the amount to be paid with respect to disbursement from any construction fund or whether surplus funds to be distributed are less than the assessments paid by the Unit Owners; and (iii) all other matters concerning the holding and disbursing of any construction fund, Any such certificate shall be delivered to the Insurance Trustee promptly after request.
d. When Reconstruction Is Not Required. In the event of insubstantial damage to the Common Elements and if the Executive Board shall elect not to repair the same or in the event there is to be no repair or replacement pursuant to § 3312(g) of the Act, then in either such event any insurance proceeds received on account of such damage shall be expended and/or distributed in accordance with § 3312 of the Act. If the Condominium shall be terminated pursuant to § 3320 of the Act, the provisions of § 3320 of the Act shall apply.
ARTICLE 16
LIMITATION OF LIABILITY
16.1. Fiduciary Duty. In the performance of their duties, the officers and members of the Executive Board shall stand in a fiduciary relation to the Association and shall perform their duties, including duties as. members of any committee of the Board upon which they may serve, in good faith, in a manner they reasonably believe to be in
. 00272503A -3g..
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the best interests of the Association and with such care, including reasonable inquiry, skill and diligence, as a person of ordinary prudence would use under similar circumstances.
16.2. Good Faith Reliance. In performing his/her duties, an officer or Executive Board member shall be entitled to rely in good faith on information, opinions, reports or statements, including financial statements and other financial data, in each case prepared or presented by any of the following:
a. one of more other officers or employees of the Association whom the officer or Executive Board member reasonably believes to be reliable and competent in the matters presented.
b. counsel, public accountants or other, persons as to matters which the officer or Executive Board member reasonably believes to be within the professional or expert competence of such person.
c. a committee of the Executive Board upon which he does not serve, duly designated in accordance with law, as to matters within its designated authority, which committee the officer or Executive Board member reasonably believes to merit confidence.
An officer or Executive Board member shall not be considered to be acting in good faith if he has knowledge concerning the matter in question that would cause his reliance to be unwarranted.
16.3. Limited Liability.
a. The members of the Executive Board and officers, in their capacity as such, shall not be personally liable for monetary damages for any action taken, or any failure to take any action, unless he has breached or failed to perform the duties of his office under the standards described above; provided, however, that the provisions of this Section 16.3 shall not apply to the responsibility or liability of an Executive Board member or officer pursuant to any criminal statute, or to the liability of an Executive Board member or officer for the payment of taxes pursuant to local, state, or federal law.
b. In discharging the duties of their respective positions, the Executive Board members and officers may, in considering the best interests of the Association, consider the effects of any action upon employees and upon suppliers of the Association and upon communities in which the Condominium is located, and all other pertinent factors. The consideration of those factors shall not constitute a violation of the standards described above.
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466 o3719PM Pf 104
c. Absent breach of fiduciary duty, lack of good faith or self -dealing, actions taken as an Executive Board member or officer or any failure to take any action shall be presumed to be in the best interests of the Association.
d. To the extent permissible under Pennsylvania law, expenses incurred by an Executive Board member or officer in defending a civil or criminal action, suit or proceeding shall be paid by the Association in advance of the final disposition of such action, suit or proceeding upon the request of the Executive Board member or officer, after the Association has received an undertaking by or on behalf of such person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Association.
e. To the extent permitted under Pennsylvania law, each member of the Executive Board, in his capacity as an Executive Board member, officer or both, shall be indemnified by the Association against all expenses and liabilities, including attorneys' fees, reasonably incurred by or imposed upon him in connection with any proceeding in which he may become involved by reason of his being having been a member and/or officer of the Executive Board, or any settlement of any such proceeding, whether or not he is an Executive Board member, officer or both at the time such expenses are incurred, except in such cases wherein such Executive Board member and/or officer is adjudged guilty of breach of the standards of conduct described above; provided that, in the event of a settlement, this indemnification shall apply only if and when the Executive Board (with the affected member abstaining if he is then an Executive Board member) approves such settlement and reimbursement as being in the best interests of the Association; and provided further that, indemnification hereunder with respect to any criminal action or proceeding is permitted only if such Executive Board member and/or officer had no reasonable cause to believe his conduct was unlawful. The indemnification by the Unit Owners set forth in this subparagraph e shall be paid by the Association on behalf of the Unit Owners and shall constitute a Common Expense and shall be assessed and collectible as such. Such right of indemnification shall not be deemed exclusive of any other rights to which such Executive Board member and/or officer may be entitled as a matter of law or agreement or by vote of the Unit Owners or otherwise.
f. The Executive Board shall obtain insurance to satisfy the indemnification obligation of the Association and all Unit Owners set forth in subparagraph e above, if and to the extent available.
00272503.
ARTICLE 17
DECLARANT'S RIGHTS
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17.1. Control.
a. Until the 60th day after conveyance of 25% of the Units which may be created within the Property (26 Units) to Unit Owners other than Declarant, Declarant shall have the right to appoint and remove any and all officers and members of the Executive Board. Declarant may not unilaterally remove any members of the Executive Board elected by Unit Owners other than Declarant.
b. Not later than 60 days after conveyance of 25% of the Units which may be created within the Property (26 Units) to Unit Owners other than Declarant, two (40%) of five members of the Executive Board shall be elected by Unit Owners other than Declarant.
c. Not later than the earlier of (i) seven years after the date of the recording of this Declaration, or (ii) 180 days after 75% of the Units which may be created within the Property (80 Units) have been conveyed to Unit Owners other than Declarant, all members of the Executive Board shall resign, and the Unit Owners (including Declarant to the extent of Units owned by Declarant) shall elect a new five member Executive Board.
ARTICLE 18
CONVERTIBLE REAL ESTATE
18.1. Reservation. Declarant hereby explicitly reserves an option, until the seventh (7th) anniversary of the recording of this Declaration, to convert all or any portion of the Convertible Real Estate to, Units and Limited Common Elements, and/or Common Elements from time to time in compliance with § 3211 of the Act without the consent of any Unit Owner or mortgagee. This option to convert may be terminated prior to such anniversary only upon the filing of an amendment to this Declaration by the Declarant. Declarant expressly reserves the right to convert any or all portions of the Convertible Real Estate at any time, at different times, in any order, without limitation and without any requirement that any other real estate be converted, added or withdrawn; provided, however, that the Convertible Real Estate shall not exceed the area shown as such on the Plats and Plans and described as such on Exhibit "D" hereto. There are no other limitations on the option to convert Convertible Real Estate.
18.2. Assurances. If the Convertible Real Estate is converted, the Buildings on the Convertible Real Estate will be located approximately as shown on the land development plan approved issued by Ephrata Township and recorded at J-215, Page 100, subject to the Declarant's right to seek modification of the land development plan by the
00272503.4 -42-
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Ephrata Township. At such time as the Convertible Real Estate is completely converted, the maximum number of detached single family dwellings in the Convertible Real Estate will be no more than ten (10), and the maximum number of Units in the Convertible Real Estate will be no more than ninety (90). All Buildings to be constructed within the Convertible Real Estate will be compatible in quality and materials with the other buildings on other portions of the Property, and will contain units intended for single family occupancy. No assurances are made as to size or architectural style or any other aspect of the Buildings to be constructed within the Convertible Real Estate. All restrictions in this Declaration affecting use, occupancy and alienation of Units shall apply to the Units created within the Convertible Real Estate. No assurances are made as to any other improvements and Limited Common Elements to be made or created in the Convertible Real Estate. In the event Units are added to the Condominium, the Percentage Interests of all Units (including the new Units) will be reallocated in the same manner as Percentage Interests for the original Units were determined as set forth in Section 4.1 above.
18.3. Voting and Expenses. If the Convertible Real Estate is converted into Units, the relative voting strength of each existing Unit within the Condominium will be diminished as would the share of common expense liability for each Unit. The dollar amount of common expense liability may remain the same or increase for each Unit as there will be additional costs and expenses of the Association related to the converted real estate.
18.4. Obligation of Declarant to Pay Site Condominium Assessments. The Declarant shall be responsible for the payment of a portion of the Site Condominium Assessment equal to a fraction the numerator of which is the total number of units which may be created within the Convertible Real Estate and the denominator is the total number of Units which may created within the Property (106) multiplied by the Site Condominium Assessment. For example if the Site Condominium Assessment for a given month is $200, and the Declarant has the right to create 60 Units within the Convertible Real Estate, the Declarant would pay $56.60 (60 potential Units/106 Units X $200). The fraction of the Site Condominium Assessment for which the Declarant is responsible shall be recalculated upon conversion of any portion of the Convertible Real Estate into Units within the Association and applied to the following month's payment of the Site Condominium Assessment.
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' 00272503.4
ARTICLE 19
PROVISIONS BENEFITTING EPHRATA TOWNSHIP
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19.1. Ephrata Township as Beneficiary. The Township shall be a third -party beneficiary of the provisions of this Declaration requiring the Association to maintain the Common Elements and the Owners to maintain their Units. The Township shall have the right, but not the obligation or responsibility, to enforce the provisions of the Declaration requiring the Association to maintain the Common Elements and the Owners to maintain their Units. The Township shall have the right to compel repairs to the Common Elements and to the Units in the event of the Association's or Owners' failure to fulfill their obligations pursuant to this Declaration. The Township shall have the right, after notice and opportunity to cure as set forth below, to perform these obligations and be reimbursed for all expenses incurred. The amount of any such expenses incurred by the Township may be filed as a municipal lien under the provisions of the Second Class Township Code by the Township, or the Township may exercise any other remedy available to it at law or in equity against either the Owner or Owners of such Unit or Units, as the case may be, or against the Association for failure to reimburse the Township for such expenses incurred in repairing either the Common Elements or the Units, all as set forth below.
The Township shall provide written notice to such Owner or Association and an opportunity to cure the said obligation for a period of 30 days from the date of such notice or, if the nature of such failure is such that it cannot be reasonably cured within the said 30 day period, such additional time as may reasonably be necessary to cure such failure if the Owner or Association promptly begins efforts to effect the cure and diligently prosecutes the cure to completion.
Provided the Township has given the notice and opportunity to cure, as aforesaid, the Township shall have the right, in order to preserve the taxable values of the properties of the Units and to prevent the Common Elements from becoming a public nuisance, to enter upon the said Common Elements and/or the Unit property and to take any action necessary to remedy such failure. Such action by the Township shall not constitute a taking of the said Common Elements nor vest in the public any rights to use the same.
The cost of such repairs and maintenance by the Township shall be assessed against the Association or against each of the Units, should more than one Unit be involved, with the same remedy being available to the Township as hereinabove set forth. The amount of any such expenses incurred by the Township may be filed as a municipal lien under the provisions of the Second Class Township Code by the Township, or the Township may exercise any other remedy available to it at law or in equity against either the Owner or Owners of such Unit or Units, as the case may be, or against the Association for failure to reimburse the Township for such expenses incurred in repairing either the Common Elements or the Units, all as set forth above.
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The Township shall have the right, thereafter, to file a Notice of Lien in the Office of the Recorder of Deeds for Lancaster County, Commonwealth of Pennsylvania, against such Units or against the Common Elements, as the case may be.
Notwithstanding anything to the contrary contained in this Declaration, no amendment of this Section 19.1 of Article 19 may occur without the written approval of the Township.
19.2. Notice to Ephrata Township. The Association agrees to provide 30 days written notice to Townshipbefore the happening of any of the following events:
a. The modification or alteration of any existing water and sewer utilities as well as any stormwater management facilities within the Condominium.
b. The names and addresses of the Members of the Executive Board and Officers of the Association after each election.
19.3. Association Responsible for any Municipal Special Assessments. In the event of any Municipal special assessments imposed upon the Common Elements, the Association shall be responsible for the same. Nothing contained herein shall prohibit the Association from collecting the Municipal special assessments from the Unit Owners pursuant to the terms of this Declaration.
00272503.4
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The Township shall have the right, thereafter, to file a Notice of Lien in the Office of the Recorder of Deeds for Lancaster County, Commonwealth of Pennsylvania, against such Units or against the Common Elements, as the case may be.
Notwithstanding anything to the contrary contained in this Declaration, no amendment of this Section 19.1 of Article 19 may occur without the written approval of the Township.
19.2. Notice to Ephrata Township. The Association agrees to provide 30 days written notice to Townshipbefore the happening of any of the following events:
a. The modification or alteration of any existing water and sewer utilities as well as any stormwater management facilities within the Condominium.
b. The names and addresses of the Members of the Executive Board and Officers of the Association after each election.
19.3. Association Responsible for any Municipal Special Assessments. In the event of any Municipal special assessments imposed upon the Common Elements, the Association shall be responsible for the same. Nothing contained herein shall prohibit the Association from collecting the Municipal special assessments from the Unit Owners pursuant to the terms of this Declaration.,
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ARTICLE 20
TIME SHARES
20.1. Limitation. No units may be owned in time-share estates.
ARTICLE 21
GENERAL PROVISIONS
21.1. Prosecution of Proceedings. Enforcement may be by legal proceedings against any person or persons violating or attempting to violate any declaration, restriction, covenant, condition or agreement herein contained either to restrain or enjoin such violation and/or recover damages.
21.2. Headings. The headings used in this Declaration and the table of contents are inserted solely as a matter of convenience for the readers of this Declaration and shall not be relied upon or used in constructing the effect or meaning of any of the provisions of this Declaration.
21.3. Severability. The provisions of this Declaration shall be deemed independent and severable, and the invalidity or unenforceability of any provision or portion thereof shall not affect the validity or enforceability of any other provision or portion thereof unless such deletions shall destroy the uniform plan of development and operation of the condominium project which this Declaration is intended to create.
21.4. Applicable Law. This Declaration shall be governed.by and construed according to the laws of the Commonwealth of Pennsylvania.
21.5. Interpretation. The provisions of this Declaration shall be liberally construed in order to effect Declarant's desire to create a uniform plan for development and operation of the condominium project.
21.6. Effective Date. This Declaration shall become effective when it and the Plats and Plans have been recorded.
21.7. Notices. All notices, demands, bills, statements or other communications under this Declaration and the Bylaws shall be in writing and shall be deemed to have been duly given upon delivery and receipt by way of Federal Express or any similar overnight delivery service providing positive tracking of delivered items or S days after being sent by registered or certified mail, return receipt requested, postage prepaid (or
00272503.4 -47- 5214fi31
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otherwise as the Act may permit), (i) if to a Unit Owner, at the single address which the Unit Owner shall designate in writing and file with the Secretary of the Executive Board or, if no such address is designated, at the address of the Unit of such Unit Owner, or (ii) if to the Association or to the Executive Board, at the principal office of the Association or at such other address as shall be designated by notice in writing to the Unit Owners pursuant to this Section. If a Unit is owned by more than one Person, each such Person who so designates a single address in writing to the Secretary shall be entitled to receive all notices hereunder.
21.8. Exhibits. All exhibits attached to this Declaration are hereby made a part of this Declaration.
2L9. No Partnership. This Declaration is not intended to create, and shall not have the effect of creating, a joint venture or partnership with respect to the matters herein contained.
21.10. Waivers. No delay, omission or failure to object by the Declarant, the Association or any Owner in exercising any right or power accruing upon any default, noncompliance or failure of performance of any of the provisions of this Declaration, by any of the other Owners shall be construed to be a waiver of any such provision, right or power. A waiver by the Declarant, the Association or any of the Owners of any of the obligations of any other such party shall not be construed to be a waiver by any other party entitled to enforce the same, a waiver of any subsequent breach of such obligation or a waiver of any breach of any other terms, covenants or conditions of this Declaration.
21.11. Force Majeure. A prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts of God, inability to obtain labor or materials, governmental delays, restrictions or controls, civil commotion, fire or other casualty, floods, earthquakes, unusual acts of the elements, breach of this Declaration by Declarant, the Association, or any Owner or anyone claiming through or under any of them or any other causes beyond the reasonable control of the party obligated to perform (not including the financial conditions of such party) shall excuse performance by such party for a period equal to the delay caused by such prevention, delay or stoppage.
21.12. Estoppel Certificates. Within 30 days after written request therefor, the Association or its authorized agent, shall execute and deliver, at a reasonable charge established by rules adopted by the Executive Board, a certificate certifying, as of the date thereof, that to the best of the Association's knowledge the requesting Owner is in full compliance with the terms of this Declaration, that all sums payable hereunder by such requesting Officer have been paid and that the improvements within the Condominium or on the requesting Owner's Unit comply with the terms hereof or, if any non-compliance
00272503.4 -48-
iI11I1I111II11 1II1I1 1I11I1I1II1 I1I111111 11 II 110 ÿ¡4 g4 ó 1sá04
exists or any sums have not been paid, specifying the nature of such non-compliance and the sums which are due and payable to the extent of the Association's knowledge, information and belief. Any Owner receiving any such certificate shall be entitled to rely thereon without independent investigation of the matters certified therein.
21.13. Subjecting of Mortgage. Fulton Bank, N.A. has joined in the execution of this Declaration solely for the purpose of evidencing its approval of the form and content of this Declaration and of subjecting the lien of its Mortgage against the Real Estate to the terms and conditions hereof. As a condition to the execution by Fulton Bank, N.A. of this Declaration for the purpose set forth in the preceding sentence, Declarant and the Association hereby agree to indemnify and hold harmless Fulton Bank, N.A., its successors and assigns, from and against any and all claims, losses, liabilities, damages and expenses (including court costs and attorneys' fees) (collectively, "Claims") which Fulton Bank, N.A. may incur, suffer or be exposed to in connection with the operation and governance of the Condominium. Notwithstanding the foregoing provisions of this Section 21.13 to the contrary, the foregoing indemnification shall be deemed to be given solely by the Declarant, its successors and assigns, and not by the Association or any Unit Owner other than the Declarant with respect to: (i) any claims arising out of any breach by the Declarant of any of the terms and conditions contained herein; (ii) any acts or omissions of the Declarant; or, (iii) any acts or omissions by the Association that result from the failure of the Executive Board to fulfill its duties under this Declaration and under the Bylaws prior to the occurrence of the first election of members of the Executive Board, Declarant, and each Unit Owner hereby shall be deemed to have released Fulton Bank, N.A., its successors and assigns, from any claims or causes of action relating in any way to execution and recording of this Declaration and/or the operation and governance. of the Condominium hereby created except to the extent that such claim or liability arises in connection with any act or omission by Fulton Bank, N.A. it has succeeded, if ever, to the interest of Declarant as Declarant or as a Unit Owner.
21.14. Exculpation. If any Owner (including the Declarant and/or the holder of any mortgage of Declarant's interest who succeeds to Declarant's position as Declarant or as an Owner) shall breach any representation or warranty made by it under this Declaration or shall fail to perform any covenant or obligation to be performed by it under this Declaration, and if as a consequence of such default, any other party shall be entitled to any legal or equitable right, relief or remedy against the defaulting party, then the non - defaulting Owner hereby agrees to look for satisfaction of such right, relief or remedy only to (i) the interest of the defaulting Owner in its Unit, and its Percentage Interest in the Common Elements plus such insurance and condemnation proceeds as either (a) the defaulting Owner may be entitled to receive with respect to its respective Unit, or (b) the defaulting Owner may have theretofore received in connection with the subject breach; and (ii) the proceeds of sale received upon execution of any judgment, decree, order or
00272503.4 -49-
1111111111111111111111111111111111111111111111111111111 P e9i4ó0m fieá04
levy thereon against the interest of the defaulting Owner in its respective Unit and appurtenant Percentage Interest in the Common Elements. No Owner, or any of its shareholders, officers, employees, partners or directors, shall be liable for any deficiency. Every judgment, decree, order and levy with respect thereto shall set forth the limitations provided in this Section 21.14. The provisions of this Section shall not be construed to relieve any Owner from the performance of any of its respective obligations hereunder, but shall be construed only to limit the monetary liability of an Owner in the event of a right, recovery or remedy against it or him. The provisions of this Section shall also not be deemed to limit or otherwise impair any party's right to obtain injunctive relief or specific performance or avail itself of any other right or remedy which may be accorded it by law or by this Declaration, except that every right, recovery and remedy for non- compliance with any judgment, decree, order or levy based thereon shall be limited to the amounts described in the first sentence of this Section.
21.15. Laws and Ordinances. Each Owner shall comply with all applicable laws and governmental rules and regulations in connection with the ownership, use and operation of its respective Unit. Any reference herein to laws, mles, regulations and/or ordinances shall be deemed to include the laws, mles, regulations and ordinances of the Township of Ephrata, the County of Lancaster, and the Commonwealth of Pennsylvania.
21.16. Performance under Protest. The waiver by any Owner or by the Declarant or the Association of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition for any subsequent breach thereof or a waiver of any other term, covenant or condition herein contained. The performance by Declarant, the Association or any Owner of any act in connection with this Declaration upon demand or request of any other Owner shall be deemed to be "under protest" and shall not serve to waive either (a) any claim by the performing party that it was under no obligation to perform such act, or (b) any right or remedy the performing party may have with respect to such performance.
21.17. Consents and Anprovals. Except for consents and approvals to changes in the Plats and Plans (which are governed by Section 21.18 hereof), whenever any consent or approval of a party is required hereunder, such consent or approval shall not be withheld, conditioned or delayed unreasonably. Such consent shall irrevocably be deemed granted by any party who or which does not, within 30 days after such consent is requested in writing, give the requesting party a written notice denying such consent and stating, in detail, the reasons for such denial.
21.18. Changes in Plats and Plans. Except as authorized or required by the Act in connection with subdivision or conversion of Units or the conversion of the Convertible Real Estate permitted hereunder, the Plats and Plans may be amended or modified only in
00272503.4 -50-
111111111111111111111111111 III III 521 11111111111 P 9e¡456 104
accordance with this Declaration. In the case of any changes in the Plats and Plans required by any governmental law, rule or regulation, no Owner shall withhold its consent to such change unreasonably; provided, however, that any Owner may withhold its consent for any reason whatsoever if any such governmental law, rule or regulation can be satisfied other than by changing the Plats and Plans (for example, by increased costs to the party desiring such change).
IN WITNESS WHEREOF, the said Declarant has caused these presents to be duly executed on the day and year first above written.
ATTEST
Name: sva,. Czar man
Phillippi Creek, Inc.
B3F;,.,. CI,+.4-aa--¡ Name: -LA h Ca( w,o, .A
Title: See re fe, r y Title: Prey ck 4
00272503.4
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For the purposes set forth in Paragraph 21.13 of this Declaration, and intending to be legally bound, Fulton Bank, N.A., joins in this Declaration.
ATTEST
By: N Title.
f
d atne: J/ kid" i Phe
002725034
1IIIIILL I111111111111111111111111AI111
5214637 Page: 58 of 104 07/29/2003 04:19PM
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COMMONWEALTH OF PENNSYLVANIA :
: SS. COUNTY OF
On this I day of \J u , 20/03, before me, a notary public, the undersigned officer personally appeared -141 Q f flQf , who acknowledged himself to be the .{iePresident of Phillippi Creek, Inc., a Pennsylvania corporation, and that as such officer, being authorized to do so, acknowledged the foregoing instrument for the purposes therein contained by signing the name of the corporation by himself as (VicePresident.
IN WITNESS WHEREOF, I set my hand and official seal.
00272503.4
(MZthi O L
Notary Public
My Commission Expires:
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal Public Christine D. Wilson, Notary
City of Lancaster, Lancaster County My Commission Expires June 23, 2007
Member, Pennsylvania Association of Notaries
Ianui1111 lIliwHiim111nnauiusNUMw ,)72=:m:,
-53-
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF 1_101(451-01- flcL (
On this day of 'J ul , 2003, before me, a notary public, the undersigned officer personally appeared ., Jtoes J £Lt of Çwho acknowledged himself to be the (Vice) President of Fulton Bank, A., a national banking association, and that as such officer, being authorized to do so, acknowledged the foregoing instrument for the purposes therein contained by signing the name of the corporation by himself as (Vice) President.
. SS.
IN WITNESS WHEREOF, I set my , a d and o;fcia
00272503.4
Notary Public
My Commission Expires:
COMMONWEALTH OP PENNSYLVANIA
Notarial Seal Christine D. Wilson, Notary Public
City of Lancaster, Lancaster County My Commission Expires June 23, 2007
Member. Pennsylvania Association of Notaries
iIIIIYI1IIIINYIIIIIIIntlIIIIIPY111111 :74t114212307,::( -'19.g.4
-54-
EXHIBIT "A"
SUBMITTED REAL ESTATE
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-55- 00272503.4
Description of Townhomes Condominium and Convertible Real Estate within Unit A
Fieldcrest at Meadow Valley Ephrata Township, Lancaster County,. PA
ALL THAT CERTAIN tract of land situate on the north side of Meadow Valley Road (SR
1020), northwest of his Drive in Ephrata Township, Lancaster County, Pennsylvania; being
known as Townhomes Condominium and Convertible Real Estate within Unit A as shown on a
Plan prepared by RGS Associates dated November 8, 2002, and being more fully bounded and
described as follows:
BEGINNING AT A POINT at the intersection of the proposed north right-of-way line of
Meadow Valley Road and the east line of land, now or late, of David Z. and Erma Lauver;
said point being located a distance of 30.00' north of the centerline of Meadow Valley Road;
thence extending along land of David Z. and Erma Lauver N 15° 30' 45" E, a distance of
849.05' to a stone, a corner of land of Raymond Z. and Mildred E. Nolt; thence along the
same N 12° 59' I0" E, a distance of 609.06' to a sandstone; thence along land, now or late,
of John Z. and Verna H. Lauver, S 74° 11' 38" E, a distance of 642.00' to a stone; thence
along land of Ephrata Area School District S 07° 44' 37' W, a distance of 699.95' to a
concrete monument (found), a corner of land of Ronald L. and Lu Ann Martin; thence along
the same S 18° 07' 04" W, a distance of 47.79' to a point, a corner of Site Condo Unit B;
thence along the same the following seventeen courses and distances: 1) S 61° 24' 50" W, a
distance of 71.83' to a point, 2) N 04° 58' 40" E, a distance of 72.66' to a point, 3) N 85° 01'
20" W, a distance of 74.47' to a point, 4) S 54° 14' 55" W, a distance of 22.09' to a point, 5)
S 81° 16' 18" W, a distance of 42.20' to a point, 6) N 54° 28' 30" W, a distance of 17.06' to
a point, 7) N 85° 01' 20" W, a distance of 64.75' to a point, 8) N 30° 38' 38" W, a distance
of 55.30' to a point, 9) on a line curving to the right having a radius of 163.19', an arc
distance of 91.88', the chord of said arc being S 75° 26' 37' W, a distance of 90.67' to a
point, 10) N 85° 01' 20" W, a distance of 53.29' to a point, 11) on a line curving to the left
having a radius of 138.00', an arc distance of 57.68', the chord of said arc being S 83° 00'
111111111 I IIII IIIIII IIIIII IIIII IIIIII 111 11
2ef463,8PM Page 62 of 10ß
15" W, a distance of 57.26' to á point, 12).S 13° 46' 21" E, a distance of 32.48' to a point,
13) S 65° 20' 00" E, a distance of 59.41' to a point, 14) S 13° 39' 12" W, a distance of
132.27' to a point, 15) S 40° 47' 40" W, a distance of 97.32' to a point, 16) S 22° 37' 45" E,
a distance of 115.00' to a point, and 17) S 27° 56' 25" W, a distance of 31.49' to a point;
thence continuing along Site Condo Unit B and along Site Condo Common Element,
respectively, S 67° 22' 15" W, a distance of 119.37' to a point; thence continuing along Site
Condo Common Element the following two courses and distances: 1) S 08° 26' 34" E, a
distance of 128.60' to a point, and 2) S 37° 02' 28" W, a distance of 45.88' to a point on the
proposed north right-of-way line of Meadow Valley Road; thence along the same the following
two courses and distances: 1) N 81° 13' 11" W, a distance of 195.21' to a point, and 2) on a
line curving to the right having a radius of 1020.00', an arc distance of 63.27', the chord of
said arc being N 79° 26' 34" W, a distance of 63.26' to the POINT AND PLACE OF
BEGINNING.
CONTAINING: 16.058 acres.
G:\01\01163118\Uvee Iegals.doc
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EXHIBIT "B" SCHEDULE OF UNIT IDENTIFYING
NUMBERS AND PERCENTAGE INTERESTS
Unit # Unit Type Net Square Footage Percentage Interest
1 Madison 3024 7.27% 2 Rutherford II 2401 5.77% 3 Rutherford 2469 5.94% 4 Rutherford II 2401 5.77% 5 Lexington 2374 5.71% 6 Madison 3024 7.27% 7 Madison 3024 7.27% 8 Cardiff 2320 5.58% 9 Cardiff 2320 5.58% 10 Cardiff 2320 5.58% 11 Cardiff 2320 5.58% 12 Windsor 2674 6.43% 73 Madison 3024 7.27% 74 Rutherford 2469 5.94% 75 Rutherford II 2401 5.77% 76 Madison 3024 7.27%
100.00%
00272503.4
INN MI 1111111 1111 DI 52914637,9PM Paye 64 of 104
-56-
00272503A
EXHIBIT "C" PLAT CERTIFICATE AND PLANS
1111111111111111111111111111111111111111 IIIII IIII IIII
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10 Paça 68 of 4
-57-
Narrative
This Exhibit "C" sets forth the Plans for the Condominium. As of the date of the Declaration the Condominium has six (6) basic types of Units: End Unit Type A ("Madison"), End Unit Type B ("Windsor"), Inside Unit Type A ("Cardiff'), Inside Unit Type B ("Lexington"), Inside Unit Type C ('Rutherford") and InsideUnit Type D ("Rutherford II"). The Plans for each type of Unit are included within the Plans. The general location for each Unit and the type of Unit is set forth on the map included as part of Exhibit "C". As shown on the Plats, some buildings will contain two (2) End Units and two (2) Inside Units, and others will contain two (2) End Units and four (4) Inside Units. Reference should be made to the definition of unit boundary as set forth elsewhere in the Declaration, for a more thorough delineation of the unit boundaries. The location of the Units may vary slightly depending upon site conditions discovered during construction.
Interior design/floorplan may vary from Unit to Unit at the request of the Unit Purchaser, however, such changes will only effect the interior floor plan of the Unit. Unit Boundaries will remain as set forth in the Declaration. Elevation of the Units may vary according to site conditions encountered during construction and may limit the ability of certain units to have walkout basements.
The following Units have been constructed as End Unit Type A ("Madison"): #1, #6, #7, #73 and #76.
The following Unit has been constructed as End Unit Type B ("Windsor"): #12.
The following Units have been constructed as Inside Unit Type A ("Cardiff'): #8, #9, #10 and #11.
The following Unit has been constructed as Inside Unit Type B ("Lexington"): #5.
The following Units have been constructed as Inside Unit Type C ("Rutherford"): #3 and #74.
The following Units have been constructed as Inside Unit Type D ("Rutherford II"): #2, #4 and #75.
Declarant may construct the above types or Other types of units within the Convertible Real Estate. See provisions within the Declaration regarding Declarant's right to convert real estate for a more complete explanation of Declarant's rights to construct other types of units.
00300577.1 IIIIInOI\U Uwon alArlar
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FIELDCREST TOWNHOMES AT MEADOW VALLEY, A FLEXIBLE CONDOMINIUM
CERTIFICATE
o Y kv , hereby certify as follows:.
1. I am an independent registered 5va.vt- YDR.
2. This Certificate is given pursuant to Section 3210(a) and (h) of the Uniform Condominium Act, Act of July 2, 1980, P.L. 286, No. 82, as amended (68 Pa.C.S.A. §3101 et seq.), and pertains to FIELDCREST TOWNHOMES AT MEADOW VALLEY,A FLEXIBLE CONDOMINIUM, located in Ephrata Township, Lancaster County, Pennsylvania. The Plats attached hereto -as
prepared by our firm, and recorded at J-. L, Page `'5 ("Plats"), contain all of the information required by Section 3210 of the Unifoiiìa Condominium Act,
IN WITNESS WHEREOF, this Certificate is executed this 23day of Ju ÿ , 2003.
(Profess ;.. -- .....-,#? \-,",, '5, ricFB.En,,bl,` ti
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00300284.1
Melkigg4 30114111511111t
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF LANCASTER
:
. SS: :
ON THIS 7-3'4 day of J u t. y , 2003 before me, a Notary Public; the
undersigned officer, personally appeared Geoffrey Kurtz, known to me (or
satisfactorily proven) to be the person whose name is subscribed to the within instrument
and acknowledged that she executed the same for the purpose therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
N ary Public
My commission expires:
Notarial Seal Public 3olyan L Shenk, Notary
Manor Tap.. Lancaster County ty My Commission Expi res Dec. 2006
MeMpgr, ponnsemnia Association ot Notaries
1pIiqIypyp1111111qyp5214831
1111111 INIIIIUIIIIIIh 1N11 ñvn úerie9
00300284.1
11111111111111111111
00272503.4
EXHIBIT "D" CONVERTIBLE REAL ESTATE
1111111111
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1111!` Pass 92
194
Description of Convertible Real Estate within Unit A Fieldcrest at Meadow Valley Ephrata Township, Lancaster County, PA
ALL THAT CERTAIN tract of land situate north of Meadow Valley Road (SR 1020),
northwest of his Drive in Ephrata Township, Lancaster County, Pennsylvania; being known as
Convertible Real Estate within Unit A as shown on a Plan prepared by RGS Associates dated
November 8, 2002, and being more fully bounded and described as follows:
BEGINNING AT A POINT on the east line of land, now or late, of David Z. and Erma
Lauver, the northwest corner of Townhomes Condominium; thence along land, now or late, of
David Z. and Erma Lauver N 15° 30' 45" E, a distance of 473.78' to a stone; a corner of land
of Raymond Z. and Mildred E. Nolt; thence along the sanie N 12° 59' 10" E, a distance of
609.06' to a sandstone; thence along land, now or late, of John Z. and Verna H. Lauver, S
74° 11' 38" E, a distance of 642.00' to a stone; thence along land of Ephrata Area School
District S 07° 44' 37' W, a distance of 699.95' to a concrete monument (found), a corner of
land of Ronald L. and LuAnn Martin; thence along the same S 18° 07' 04" W, a distance of
47.79' to a point, a comer of Site Condo Unit B; thence along the same the following fifteen
courses and distances: 1) S 61° 24' 50" W, a distance of 71.83' to a point, 2) N 04° 58' 40"
E, a distance of 72.66' to a point, 3) N 85° 01' 20" W, a distance of 74.47' to a point, 4) S
54° 14' 55" W, a distance of 22.09' to a point, 5) S 81° 16' 18" W, a distance of 42.20' to a
point, 6) N 54° 28' 30" W, a distance of 17.06' to a point, 7) N 85° 01' 20" W, a distance of
64.75' to a point, 8) N 30° 38' 38" W, a distance of 55.30' to a point, 9) on a line curving to
the right having a radius of 163.19', an arc distance of 91.88', the chord of said arc being S
75° 26' 37' W, a distance of 90.67' to a point, 10) N 85° 01' 20" W, a distance of 53.29' to a
point, 11) on a line curving to the left having a radius of 138.00', an arc distance of 57.68',
the chord of said arc being S 83° 00' 15" W, a distance of 57.26' to a point, 12) S 13° 46' 21"
E, a distance of 32.48' to a point, 13) S 65° 20' 00" E, a distance of 59.41' to a point, 14) S
13° 39' 12" W, a distance of 132.27' to a point and 15) S 40° 47' 40" W, a distance of 97.32'
to a point,, a corner of Townhomes Condominium; thence along the same the two courses and
ppyuy9yYqIpM521483T IMWMIIINIIWInI1Y WIIIIMItl YY é:,Sé;mnn.B°
distances: 1) N 38° 59' 08" W, a distance of 87.20' to a point, and 2) S 87° 25' 26" W, a
distance of 189.52' to the POINT AND PLACE OF BEGINNING.
CONTAINING: 13.638 acres.
G:\01\01163118\Description of Convertible Real Estate 13.638 acres.doc
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Pa e 104 of 104
EXHIBIT D.I. BYLAWS of SITE CONDOMINIUM
00302863.1