FIRST SUPPLEMENTAL DECLARATION
PROTECTIVE COVENANTS. EXCEPTIONS.
RESERVATIONS AND CONDITIONS
BEECH MOUNTAIN LAKES
January 7, 1998
TWELFTH AMENDMENT AND FIRST
THIS TWELFTH AMENDMENT AND FIRST SUPPLEMENTAL DECLARATION, made as of this 5th day of January, 1998 (referred to separately in this document as the "Twelfth Amendment and First Supplemental Declaration" and which term sometimes is referred to in this document by use of such words as “hereto”, "hereby", "herein, "hereof', and "hereunder" or other descriptive words or phrases having similar import), to the DECLARATION OF PROTECTIVE COVENANTS, EXCEPTIONS, RESERVATIONS AND CONDITIONS FOR BEECH MOUNTAIN LAKES (the "Original Declaration"), made by Beech Mountain Lakes Corporation, a Pennsylvania corporation (the "Declarant").
WHEREAS, Declarant is the owner of certain real property located in Butler Township, Luzerne County, Pennsylvania, more particularly described in Exhibit "A" attached to and made a part of the Original Declaration, which real property is now known as "Beech Mountain Lakes" (formerly known as "Lake of the Four Seasons), and is referenced in the Original Declaration as the "Development'; and
WHEREAS, Declarant heretofore made and filed the Original Declaration, recorded in May 1, 1985, in Book 2158, pages 1028-1103, in the Office for the Recording of Deeds, Luzerne County, Pennsylvania: and
WHEREAS, Section 21.4 of the Original Declaration provides, inter alia, that the Declarant reserves the right to amend the Declaration at any time prior to December 31, 1985; and
WHEREAS, Declarant heretofore made various amendments to the Declaration, which amendments are recorded in the Office for the Recording of Deeds, Luzerne County, Pennsylvania and whereby, inter alia, the time within which Declarant reserves the right to amend the Declaration was extended to December 31, 1998; and
WHEREAS, the Declaration in Sections 2.1.2 and 2.2 provides, inter alia, that Declarant may make additional property subject to the Declaration and a part of the Development by the filing of record of one or more supplemental declarations with respect to the Added Property; and
WHEREAS, the Declaration, in Section 11.3, provides, inter alia, that the Declarant may, by amendment to the Declaration, provide for transfer and assignment of certain rights and properties, including the Common Areas, and may provide for the transfer of Declarant's control of the Association, referred to in the Original Declaration as the "Turnover Date", at any time prior to the date when ninety percent (90%) of all Interests in the Development have been conveyed to Owners, other than the Declarant; and
WHEREAS, as of the date hereof, ninety percent (90%) of Interests in the Development have not been conveyed to Owners, other than Declarant; and
WHEREAS, the Declarant desires to make this Twelfth Amendment and First Supplement to the Declaration for the purposes of, inter alia, amending certain provisions of the Declaration, supplementing the Declaration for purposes of adding certain properties to the Development, amending the Declaration to provide for the Turnover Date and to set forth certain arrangements and conditions applicable to transfer of certain rights, obligations and properties, including the Common Areas and Sports Facilities, to the Association in connection with such turnover.
NOW THEREFORE, Declarant declares that the Declaration is hereby amended and supplemented as follows:
The terms used herein shall have the meanings specified in the Original Declaration (unless amended hereby) and, where applicable, as specified in the preamble and recitals hereof and herein.
The following terms shall have the following meanings, unless the context clearly otherwise requires (and to the extent that any of the following terms are defined in the Original Declaration, such definitions are hereby amended):
1.1 "Common Areas" means those portions of the Development, which are specifically designated as Common Areas in Exhibit "A" to the Declaration, as Exhibit "A" may be amended or supplemented from time to time, including the Common Areas to be established pursuant to the Unit II Community Declaration, as provided in this Twelfth Amendment and First Supplemental Declaration, any real property which may be designated as Common Area on any Plat and any other land deeded to and accepted by the Association for use as Common Areas, together with all improvements located above and below the ground and rights appurtenant thereto. The Common Areas shall generally include the roadways, bodies of water, open space, drives, parking areas, walkways and green areas, but shall not include any Community Common Areas, Units or the Sports Facilities. Upon transfer of the Sports Facilities to the Association pursuant to the Turnover Agreement, the Sports Facilities shall become Common Areas. The Declarant may make any Common Area subject to the Declaration pursuant to Section 4 hereof.
1.2 "Declarant" means Beech Mountain Lakes Corporation, a Pennsylvania corporation, or any assigns or successors in title, who come to stand in the same relation to the Development as Declarant, including any party or parties that acquire(s) ownership of all Declarant's then remaining Interests in the Development, excluding however the Association, unless any such conveyance expressly and specifically includes all of the Declarant’s rights hereunder.
1.3 "Declaration" means the Declaration of Protective Covenants, Exceptions, Reservations and Conditions for Beech Mountain Lakes, as recorded on May 1, 1985 in Book 2158, pages 1028-1103, inclusive, in the Office for the Recording of Deeds, Luzerne County, as amended and supplemented from time to time.
1.4 "Turnover Agreement" means the agreement, dated as of January 7, 1998, between the Declarant, as transferor and the Association, as transferee, in the form attached to this Twelfth Amendment and First Supplemental Declaration, as Exhibit "D", whereby the Declarant agrees to transfer certain Common Areas, Sports Facilities, and other rights and properties to the Association on the Turnover Date pursuant to certain terms and conditions as set forth therein.
1 .5 "Turnover Date", the date on which the rights of Declarant to designate the members of the Association Board are terminated as provided in Section 11.3 of the Declaration and the date of transfer of certain rights and properties by the Declarant to the Association subject to the Turnover Agreement and the provisions hereof.
1.6 "Unit II" means the real property described in Exhibit "A" (as supplemented by this Twelfth Amendment and First Supplemental Declaration), attached hereto and made a part hereof and added to the Development as provided in Section 3.1 of this Twelfth Amendment and First Supplemental Declaration.
1.7 "Unit II Community Declaration” means the Community Declaration, as amended or supplemented, to be made and recorded by Declarant as provided in Section 3.2 of this Twelfth Amendment and First Supplemental Declaration for the purposes, inter alia, of selling forth certain mailers relating to the development plan for all or a portion of Unit II of the Development.
2. AMENDMENTS TO DECLARATION.
2.1 Amendment to Section 2.1.2 of the Declaration. Section 2.1.2 shall be amended by adding the following paragraph to the end thereof:
Notwithstanding anything contained herein to the contrary, with respect to Unit II of the Development, Declarant reserves the exclusive right to make and to record the Unit II Community Declarations and any amendments or supplements thereof for the purpose of setting forth details of the development plan. including delineation of Interests, Units and Common Areas, and/or reserves the exclusive right to remove all or a portion of such Added Property from the provisions thereof at any time within fifteen (15) years following the Turnover Date, all as provided in Section 3.2 of this Twelfth Amendment and First Supplemental Declaration.
2.2 Amendment to Section 2.2.1(d'i of the Declaration. Section 2.2.1(d) of the Declaration shall be amended to provide as follows:
(d) Each Owner of an Interest in Added Property shall be responsible for the payment of the Association Assessment and Community Assessment applicable to his Unit, but shall not be responsible for the payment of any Special Assessment which was levied prior to the time that the Added Property became subject to assessment under this Declaration; except that the Declarant shall not be responsible for payment of any Association Assessment or Special Assessment for any Unit or Interest owned within Unit II, un such time as the Declarant conveys any Common Areas within Unit II, or any phase thereof to the Association as provided in Section 3.2 of this Twelfth Amendment and First Supplemental Declaration.
2.3 Amendment to Section 6.1 of the Declaration. Section 6.1 of the Declaration is amended to provide as follows:
6.1 Association of all Owners. The Beech Mountain Lakes Association is or will be the association of all Owners of Interests in the Beech Mountain Lake Development (previously designated as Lake of the Four Seasons development). The Lake of the Four Seasons Property Owners Association was incorporated by the prior developer as a Pennsylvania Nonprofit Corporation but was never operational. Declarant, in its sole discretion, may reactivate or reorganize the Association under the name of Beech Mountain Lakes Association, Inc. at some time in the future, but not later than the Turnover Date, by, inter alia, filing Articles of Incorporation to form the Association as a Pennsylvania Non-Profit corporation and by promulgating By-Laws for the Association. Only the Declarant shall be authorized to reactivate or to form the Association. All references to "Association" in this Declaration shall mean the Beech Mountain Lakes Association, Inc.
UNTIL SUCH TIME AS THE ASSOCIATION IS REACTIVATED, ALL RIGHTS AND OBLIGATIONS OF THE ASSOCIATION SHALL BE ASSUMED AND CARRlED OUT BY THE DECLARANT.
2.4 Amendment to Section 6.6 of the Declaration.. Section 6.6 of the Declaration shall be amended to provide as follows:
6.6 Delegates. Subject to rights retained by the Declarant in Section11.3 herein, voting rights of the members of the Association shall be vested exclusively in delegates ("Delegates"). Each community shall be represented by three (3) Delegates. The initial Delegates shall be appointed by the Declarant at the time of organization of the Association, except for the Initial Delegates representing Unit II, which shall be appointed or elected as provided in Section 3.2 of the Twelfth Amendment and First Supplemental Declaration: Thereafter the Delegates shall be designated officers of a Community Association, appointed by the Board of Directors for each Community Association. If no Community Association has been formed, the Delegates shall be elected by the Owners in each such Community. The procedures for election or designation of Delegates and the removal thereof shall be as set forth in the Community Declaration, or if not set forth therein, then as provided in the Association Instruments. With the exception of the initial Delegates, each Delegate shall be an Owner of his Unit within the Community he represents; provided, however that in no event shall an Owner of any Interest serve as Delegates from the same Community concurrently. If a Delegate ceases to be an Owner of his Unit within the Community he represents, he shall be deemed to have resigned as a Delegate.
2.5 Amendment to Section 6.9 of the Declaration. Section 6.9 of the Declaration shall be amended to provide as follows:
6.9 Association Board. Subject to the rights retained by the Declarant under Section 11.3, the Association Board shall consist of six (6) members, each of whom shall be a Delegate or as otherwise provided in the Association Instruments. As provided in Section 11.3, until the Turnover Date, the Declarant shall have the right to appoint or remove any director or directors of the Association. After the Turnover Date, the members of the Board of Directors shall be the Delegates, except that the Declarant shall have the right to appoint a director to fill any vacancy occurring with respect to the initial Board of Directors, as provided in the Association Instruments. Upon appointment of the initial Delegates representing the Unit II Community, the Association Board shall be expanded to nine (9) members and the Unit Il Delegates shall become members thereof.
UNTIL SUCH TIME AS THE ASSOCIATION HAS BEEN REACTIVATED ALL RIGHTS AND OBLIGATIONS OF THE BOARD OF DIRECTORS SHALL BE ASSUMED AND CARRIED OUT BY THE DECLARANT.
2.6 Amendment to Section 7.2 of the Declaration. Section 7.2 of the Declaration shall be amended to provide as follows:
7.2 Annual Assessment. Each Owner (except the Declarant) shall be required to pay an Annual Assessment for each Interest owned. Inasmuch as the Declarant has borne the cost of construction of the Common Areas and Community Common Areas, and because the Declarant will not use the Common Areas and Community Common Areas to the same extent that other lot owners will use such facilities, the Declarant shall not be responsible for, or be obligated to pay any Annual Assessments pursuant to this Section. After two (2) years following the Turnover Date, or earlier at Declarant's sole discretion, the Declarant shall pay the same Assessment for each Interest owned as any other Owner in the Development, except that Declarant shall not be required to pay an Annual Assessment for any interest owned within Unit II of the Development until two (2) years following the date that all or any part of the Common Areas within Unit II of the Development are conveyed to the Association as provided in Section 3.2 of the Twelfth Amendment and First Supplemental Declaration. The rights of Declarant as set forth herein, together with Declarant’s other rights under the Declaration, as amended, shall be assignable to any successor Declarant as to the whole of the Development, or any part thereof.
The amount of each Owner's Annual Assessment shall be determined as follows:
(a) Association Assessment: The Declarant, until the Association is reactivated, and thereafter, the Association, shall levy a fee upon each Owner to fund the Common Expenses of .the Association. This fee shall be referred to as the “Association Assessment.” With respect to any Interest represented by a Timesharing Unit Week, the Association Assessment may be levied on a per Unit basis by billing the applicable Community Association a fee for each Unit committed under the applicable Community Declaration to a timesharing arrangement. In such case, the Community Association shall be responsible for payment of the Association Assessment on a per Unit basis and for billing and collecting the pro rata share thereof from Owners of such Interests in such Unit.
(b) Community Assessment:. The Community Assessment shall fund the Community Expenses of each Community. A Community Assessment shall be levied against each Owner in each Community. The Community Assessment may be levied by the applicable Community Association, the Declarant or the Association, as provided in the Community Declaration. Unless otherwise provided in the Community Declaration, the Community Assessment may be collected by the Association as a part of the Annual Assessment, at the discretion of the Association.
2.7 Amendment to Section 7.4 of the Declaration. Section 7.4 of the Declaration shall be amended to provide as follows:
7.4 Allocation of Association Assessment. The Association Assessment shall be allocated as follows:
(a) The Association Assessment for each Owner shall vary according to the type of property and shall be based on the following ratios:
Residential Lot 1.0
Timesharing Unit (Townhome) 4.0 (not to exceed)
Revisions to the above listed categories and ratios or additional categories and the ratio for such categories may be unilaterally established by the Declarant at any time prior to the Turnover Date by recording an amendment to this Declaration pursuant to Section 21.4. After the Turnover Date, the Association may only revise the above listed categories and ratios or establish additional categories and ratios by recording an amendment pursuant to the provisions of Section 21.3 of the Declaration.
Association Assessment per Residential Lot or Dwelling Unit
________Total Estimated Common Expenses for ensuing year less ($120.00 X # Charter Members)_______
(1.00 x # Residential Lots) + (1.00 X # Residential Dwelling Units) + (4.0 x # Timesharing Units - Townhomes)
Notwithstanding the above, the Declarant, in its absolute discretion, but with no obligation whatsoever, may reduce the amount of the Association Assessment by subsidizing the assessment. However, all such reduced assessments shall remain in the same ratio as set forth above and no one category shall be reduced proportionately more than another.
(c) Notwithstanding the above, those persons listed on Exhibit "C" to the Original Declaration which is incorporated herein by reference, who originally purchased Lots from Eastern Pennsylvania Marine Properties, Inc. where there has been no change in ownership or title with respect to said lot or lots ("Charter Members"), will pay $10.00 per lot per month as the Association Assessment for road maintenance, security, recreational facilities and maintenance. No additional Association Assessment will be made to such owners for construction and maintenance of additional amenities other than reasonable user fees. This right of limited assessment is nontransferable.
(d) Notwithstanding anything to the contrary herein, the Board, within its absolute discretion, may impose a special annual charge or fee for purposes of recovering any portion of the Common Expenses applicable to the costs and expenses of operation and maintenance of recreational facilities within the Development, which special charge or fee may be billed and collected in such manner as shall be deemed appropriate by the Board.
(e) Notwithstanding anything to the contrary herein, the Association Assessment shall not increase more than 10% per year, cumulatively, from the date of recordation of this Declaration, i.e., if the Association Assessment does not increase for two years, it may not be increased more than 20% in the following year (10% each year, cumulatively).
3. ADDED PROPERTY: UNIT II.
3.1 Unit II Added to Development. The Declarant hereby annexes to the Existing Property and submits to this Declaration the real property situated in Luzerne County, Pennsylvania, as more particularly described on Exhibit "A" (as supplemented hereby), attached hereto and made a part hereof referred to herein as "Unit II", which real property is and shall be held, transferred, sold, conveyed and occupied subject to the Declaration as Added Property. The Declarant intends to develop Unit II at its sole discretion based upon its continuing development plan; subject to the provisions hereof, and as more particularly described in the Unit II Community Declaration.
3.2 Unit II Community Declaration. The real property, which is the subject hereof, known as “Unit II”, constitutes Added Property that hereby becomes a part of the Development subject to this Declaration. The Added Property, known and described as Unit II, shall be a new Community within the Development pursuant to the provisions of the Declaration. The Declarant shall proceed with development of the Unit II Community as follows:
(a) At any time within fifteen (15) years from the date of the recording of this Twelfth Amendment and First Supplemental Declaration, Declarant may file and record a Unit II Community Declaration, including any amendments or supplements thereto, in accordance with Section 2.4 of the Declaration, and/or may file and record a release and withdrawal of Added Property as a supplemental declaration (the "Release") whereby all or any part of Unit II may be released and withdrawn from the provisions of the Declaration. Upon the recording of any such Release, all or such part of Unit II described therein shall no longer be subject to the provisions of this Declaration, shall be free and clear of all liens, basements, servitudes or obligations of any kind related to the Declaration of like force or effect, as if such Added Property were never subjected to the Declaration; Provided, however that the recording of any such Release shall occur only where Declarant is the Owner of all of such real property to be released.
(b) The Unit II Community Declaration shall set forth the details of the development plan with respect to Unit II, shall define the Interests to be conveyed and shall define the Common Areas and Sports Facilities, if any, to be developed in connection with the Unit II Community. The Common Areas, Sports Facilities, if any, and other Improvements to Unit II shall be consistent with the Improvements to the existing Development.
(c) Declarant may develop the Unit II Community in phases with each phase represented by a Plat or Plats identifying the Units and Interests to be conveyed, Common Areas and other Improvements, all of which shall be consistent with and subject to the Declaration.
(d) Declarant may also file and record the Unit II Community Declaration in supplements with each supplement setting forth provisions applicable to a particular phase or phases of the Unit II Community. The Unit II Community Declaration, or any supplements thereto may provide for different types of Interests with different phases of Unit II.
(e) The Declarant may establish a Community Association for Unit II by setting forth provisions therefor within the Unit II Community Declaration; if no Unit II Community Association is formed by Declarant, then the three (3) Delegates representing the Unit II Community shall be elected in the manner provided in the Association Instruments, except that the initial Delegates representing the Unit II Community shall be appointed by the Declarant, shall serve for a term of one (1) year and thereafter their successors shall be appointed or elected as provided in the Unit II Community Declaration, or as provided in the Association Instruments. In the event Declarant fails to appoint initial Delegates to represent the Unit II Community within ten (10) years following the transfer of any Interest within Unit II to any Owner, other than the Declarant, then, in that event, the initial Delegates shall be appointed or elected as provided in the Unit II Community Declaration or pursuant to the Association Instruments.
(f) At any time following completion of construction of all proposed Improvements to Common Areas within Unit II, or any phase thereof, the Declarant shall convey such Common Areas to the Association and the Association shall a conveyance of such Common Areas and shall thereafter be responsible for operation and maintenance of such Common areas as provided in the Declaration. For purposes hereof, the term "completion of construction" shall mean substantial completion of construction in accordance with any plans and specifications, consistent with any permits or approvals and approval or acceptance of such Improvements by any applicable regulatory authority. Prior to such conveyance, the Declarant shall be responsible for operation and maintenance of such Common Areas. Inasmuch as the Declarant will bear the cost of construction of the Unit II Common Areas and will bear the cost of operation and maintenance of the Unit II Common Areas until conveyance thereof to the Association as provided herein, the Declarant shall not be responsible for, or be obligated to pay any Annual Assessrnents for any interest owned within Unit II, or any phase thereof until two (2) years following conveyance of such Common Areas to the Association. Upon expiration of said two (2) year period following conveyance to the Association of Common Areas within Unit II or any phase thereof, as provided herein, the Declarant shall pay the same Assessment for each Interest owned within Unit II or within any such phase thereof as any-other Owner in the Development.
(g) Any Community Common Areas planned with respect to Unit II shall be owned, operated, maintained and transferred to any Unit II Community Association as provided in the Unit II Community Declaration.
3.3 The Architectural Control Committee: Unit II. As provided in the Turnover Agreement, the Declarant shall have the authority and shall exercise the functions of the Architectural Control Committee (ACC), upon the recording of the Unit II Community Declaration and continuing until such time as the Declarant shall convey all improvements to Common Areas within Unit II, or any phase thereof, to the Association, whereupon all buildings and structures within Unit II or any such phase theresf shall be subject to the provisions and regulations applicable to the ACC. In any event, within ten (10) years following the transfer of any Interest within Unit II to any Owner, other than the Declarant, then, in that event1 the provisions and requirements of the ACC shall be applicable to all property within Unit II
4.1 Activation of the Association. Pursuant to provisions of the Declaration9 the Declarant has-organized the Association by the filing of Articles of Incorporation, appointment of the initial Delegates, appointment of the initial Board of Directors and by the adoption of By-Laws by the Declarant, as incorporator.
4.2. Turnover Agreement. The Declarant and the Association have entered into the Turnover Agreement pursuant to which the Common Areas, Sports Facilities and certain other properties and rights are to be transferred and conveyed to the Association as more fully provided therein. The Turnover Agreement in the form executed on behalf of the Declarant and the Association is attached to this Twelfth Amendment and First Supplemental Declaration and made a part hereof marked Exhibit “D”.
4.3 Turnover Date. As provided in the Turnover Agreement, Declarant hereby states that the Turnover Date is January 7, 1998.
5.1 All terms, conditions, covenants and agreements of the Original Declaration, except to the extent hat the same are amended and supplemented hereby, are ratified and confirmed and are declared to be and shall be and remain in full force and effect and shall apply in all respects to this Twelfth Amendment and First Supplemental Declaration and to the Development, all as shall be applicable and appropriate, as if the same were repeated in full herein: Provided, however, that provisions of the Original Declaration always shall be construed so as to give proper effect and meaning to provisions of this Twelfth Amendment and First Supplemental Declaration.
5.2 Use of article numbers and section numbers herein is for convenience only and such numbers bear no direct relationship to articles or sections in the Original Declaration that bear identical numbers.
5.3 As provided in the Original Declaration, this Twelfth Amendment and First Supplemental Declaration, being a supplement to the Original Declaration, shall be construed as an integral part thereof.
5.4 This Twelfth Amendment and First Supplemental Declaration may be executed and delivered in any number of counterparts, each of which shall be regarded for all purposes as an original; and such counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF Beech Mountain Lakes Corporation, as Declarant, has caused this Twelfth Amendment and First Supplemental Declaration to be executed in its name and on its behalf by its President, or Vice-President and its corporate seal to be affixed hereunto, duly attested by its Secretary or Assistant Secretary and hereby declares this document to be its act and deed, all as of the day and year first above written.
(as Supplemented by the Twelfth Amendment and
First Supplemental Declaration)
UNIT II (ADDED PROPERTY)
(insert description of Added Property)
COMMON AREAS (UNIT II)
All property as shown on the recorded Plats to be referenced in the Unit II Community Declaration and designated as Common Areas to be conveyed to the Association as provided herein.