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16 BML Covenants 16. SPORTS EACILITES
16.1 Ownership. Declarant intends to construct,
operate and maintain certain privately owned recreational facilities within the
Development, as described in Exhibit B attached hereto and incorporated herein
by reference, (the “Sports Facilities"). Unless, in the sole and absolute
discretion of the Declarant, the Sports Facilities or a portion thereof is dedicated
to or conveyed to the Association, the Sports Facilities will not be a Common
Area. The Sports Facilities shall be identified and designated by Declarant,
who may add to or subtract from the Sports Facilities at any time without the
consent of the Owners or the Association. Any such addition or subtraction shall be accomplished by the
recordation of an amendment to this Declaration pursuant to Section 22.4. The Sports Facilities are private property-owned by Declarant and shall
remain private property. Declarant's execution and recording of a Plat on which
Sports Facilities will be located shall not be construed as a dedication to the
public of any portion of the Sports Facilities. The legal status of the
relation between the Owners and the Declarant with regard to the Sports
Facilities shall be that the Declarant shall be deemed a licensor and the
Owners shall be deemed licensees. The Sports Facilities shall be available to
Owners, their families, guests, invitees and licensees, subject to payment of
the Recreational Fee described herein, any individual use or user fees, the
Rules and Regulations affecting the Sports Facilities and any further
restrictions or limitations contained therein or herein. Declarant may, in its sole discretion, convey the Sports Facilities to
the Association. Declarant may convey any portion of the Sports Facilities one
portion at a time, or convey all of the Sports Facilities at the same time.
Declarant may convey one, some or all of the Sports Facilities. On the date of
said conveyance, the Sports Facilities, or the part thereof conveyed, shall be
free and clear of all liens and encumbrances, subject only to liens for taxes
not then delinquent, such easements and rights-of-way as then appear of record
and non-exclusive easements from and to the Sports Facilities as described
herein. Such conveyance shall be deemed delivered for all purposes upon
Declarant's recording thereof in the Office of the Recorder of Deeds of Luzerne
County, Pennsylvania. The Association shall be obligated to accept the
conveyance(s) by the Declarant to the Association of any and all Sports
Facilities and shall have no right to refuse such conveyance. Upon conveyance
of some or all of the Sports Facilities to the Association, such facilities
shall be deemed Common Areas and all rights, powers, privileges and immunities
of Declarant, as such, with respect to the Sports Facilities conveyed, shall
vest in the Association. As long as it holds title to the Sports Facilities, Declarant reserves
the right to change the arrangement of any portion of the Sports Facilities and
to construct additional facilities within the Sports Facilities. Subject to the
rights of all Owners as set forth in Section 16.2, so long as it holds title to
a Sports Facility, Declarant may sell, convey, mortgage, hypothecate or
encumber, lease, rent, use, occupy and improve the Sports Facility in its sole
discretion. å 16.2 Right of Enjoyment. Each Owner, his family, guests,
invitees, and licensees shall have a non-exclusive right and easement to use
and enjoy the Sports Facilities. Such right and easement shall run with the
land, be appurtenant to and pass with title to every Interest, subject to and
governed by the provisions of this Declaration. Non-Owners may use and enjoy
the Sports Facilities only to the extent permitted by the entity that owns each
Sports Facility and such entity may require that any such individual be a guest
of an Owner who has the right to use such areas and/or pay a use fee set by the
entity responsible for the management and operation of such Sports Facility. å 16.3 Operation and Management. As long as the Declarant holds
title to the Sports Facilities, Declarant shall operate and maintain such Sports
Facilities. If title to a Sports Facility has been conveyed to the Association,
the Association shall maintain and repair any Sports Facility which it owns
pursuant to Section 4.2 hereof. Nothing contained herein shall be deemed to preclude the entity which
holds title to a Sports Facility from allowing members of the general public to
use such Sports Facility to the extent it determines to allow for such use, and
to charge such members of the general public such use fees or rental fees it
may establish from time to time. The entity that holds title to a Sports Facility shall have the sole and
exclusive right and duty to manage and operate the Sports Facility which it
owns, including, without limiting the generality of the foregoing, the right: (a) to maintain, repair, replace or restore all of the improvements and landscaping within such Sports Facility; (b) to promulgate, amend and rescind from time to time general policies and guidelines governing the use of such Sports Facility; (c) to regulate the use of such Sports Facility and, if applicable, establish a use or user fee schedule for each such facility. (d) to receive all notices, claims and demands relating to taxes and assessments affecting such Sports Facility; and (e) to contract with
others for the management, maintenance, operation, construction or restoration
of such Sports Facility or any portion thereof. å 16.4 Recreation Fee. For each Interest owned, an Owner
shall be required to pay an annual Recreation Fee to the Declarant, separate
and apart from any Assessment by the Association or a Community Association.
The Declarant shall not be responsible for, or be obligated to pay any
Recreation Fee pursuant to this Section. Payment of this fee will entitle an
Owner, his family, guests, invitees, and licensees to use the Sport Facilities
owned by the Declarant. The annual Recreation Fee is subject to increase by the
Declarant; however such increase shall not exceed 10% per year, cumulatively,
i.e., if the Recreation Fee does not increase for two years, it may not be
increased more than 20% in the following year (10% each year, cumulatively).
Payment of the Recreation Fee shall be secured by a lien on an Owner's
Interest, as described in Section 16.6 below. The Recreation Fee for each Owner
shall vary according to the type of property and the status of improvement to
that property and shall be based on the same ratios established in Section
7.4(a) herein. Notwithstanding the above, those persons who originally purchased lots
from Eastern Pennsylvania Marine Properties, Inc., as listed in Exhibit C
hereto, and who still own said lot or lots, shall not be required to pay a
Recreation Fee, other than reasonable user fees, as long as they pay the $10.00
per lot per month Association Assessment pursuant to Section 7.4(c) for road
maintenance, security, recreational facilities and maintenance. This right of
limited assessment is nontransferable. å 16.5 Liability for Recreation Fee. No Owner may exempt himself, his
successors or assigns, from his obligation to pay any the Recreation Fee by his
waiver of the use and enjoyment of any of the Sports Facilities or by the
abandonment of his Interest. å 16.6 Creation of Personal Liability and
Priority of Lien.
Each Owner, by acceptance of a deed or other conveyance or transfer of an
Interest (whether it is so expressed in any such deed or other conveyance or
transfer), covenants and agrees to pay the annual Recreation Fee to the
Declarant, together with any interest thereon, as shall be fixed or assessed by
the Declarant in accordance with the terms and provisions of this Declaration.
The annual Recreation Fee and any late fees, interest and costs of collection,
including reasonable attorneys' fees shall also be a personal obligation of the
Owner against whom they are assessed. The obligation to pay the annual
Recreation Fee late fees, interest, and costs of collection thereof, including
reasonable attorneys' fees, is secured by a lien or lien right in favor of the
Declarant, which, as to each and every Interest, relates back to the date of
recordation of this Declaration in the Office for Recording of Deeds, Luzerne
County, Pennsylvania. Such lien shall be superior in all respects to all rights
of homestead that may arise in favor of any Owner. Any lien arising under this Section shall continue in full force and
effect until fully paid or otherwise discharged. The lien against an Interest
for an unpaid Recreation Fee may be foreclosed or enforced in the same manner
as is authorized by the laws of the Commonwealth of Pennsylvania for the
foreclosure of mortgages on real property or the enforcement of security
interests. The Declarant shall have the right to bid on the Interest at any
foreclosure sale or public sale of the Interest and may acquire, hold, lease,
mortgage, and convey the Interest acquired at such sale. å 16.7 Effect of Transfer of Interest. The sale or transfer of any Interest
shall not affect the lien set forth in Section 16.6 above, and any grantee or
transferee shall be jointly and severally liable for the portion of any
Recreation Fee assessed against such Interest as may be due and payable at the
time of conveyance or transfer, but without prejudice to the rights of the
grantee or transferee to recover from the grantor or transferor the amounts
paid by the grantee or transferee therefor; provided, however, that if such
grantor, grantee, transferor, or transferee shall request and receive a
statement of Recreation Fees payable with respect to the Interest, such grantee
or transferee, his successors, successors-in-title and assigns, shall not be
liable for, nor shall the Interest conveyed be subject to a lien for, any
unpaid Recreation Fee against such Interest in excess of the amount set forth
in such statement. å 16.8 Mortgagee Protection. Notwithstanding any other provision
of this Section 16, the lien that may be created upon any Interest shall be
subordinate to the lien of any Mortgagee of Record, as defined herein, upon
such Interest. If such a Mortgagee of Record obtains title to an Interest as a
result of a foreclosure, deed in lieu of foreclosure, public sale or otherwise,
such Mortgagee of Record shall not be liable for any Recreation Fee due and
owing on such Interest prior to the date such Mortgagee of Record obtained
title thereto. The Declarant shall remain entitled to recover any unpaid
Recreation Fees from the Owner whose Interest was foreclosed upon. å 16.9 Non-Payment of Recreation Fee. In addition to all other remedies
provided by law, the Declarant may enforce collection of all delinquent
Recreation Fees, as provided in this Section, 16.9. Any Recreation Fee, or
portion thereof, not paid when due shall be deemed delinquent. å 16.9.1. Interest and Late Charge. Any Recreation See not paid when
due shall be deemed delinquent. Any Recreation Fee that is delinquent for
fifteen (15) days or more shall bear interest from the date of delinquency
until paid at the highest legal contract rate permitted by Pennsylvania, but
not to exceed eighteen percent (18%) per annum. In addition, any Recreation Fee
that is more than thirty (30) days delinquent will be charged a late fee of
$25.00. å 16.9.2 Additional
Remedies. If any
delinquent Recreation Fee or portion thereof is not paid within fifteen (15)
days after written notice is given to the Owner to make such payment, the
Declarant shall have the right to invoke any or all of the following remedies: (a) The entire unpaid balance of the Recreation
Fee may be accelerated at the option of the Declarant and may be declared due
and payable in full, and foreclosure proceedings may be instituted to enforce
the lien of the Declarant; (b) The rights of the Owner to use the Sport
Facilities may be suspended; (c) The Declarant may bring an action at law
against the Owner personally obligated to pay the same; and (d) The Declarant may foreclose its lien
against such Owner's Interest, in which event interest and costs of collection
shall be included in such lien, with such costs of collection to include court
costs, the expenses of sale, any expenses required for the protection and
preservation of the Interest and reasonable attorneys' fees actually incurred. Any such
notice shall be sent by certified mail, return receipt requested, to the Owner
at such Owner's last known address as contained in the records of the
Association and shall specify the amount of the Recreation Fee then due and
payable, including any interest accrued thereon. å 16.9.3 Collection. All payments on account shall be applied first to the
aforesaid costs of collection, then to interest, and then to the Recreation Fee
lien first due. All interest collected shall be credited to the Declarant. Each
Owner vests in the Declarant the right and power to bring all, actions against
him personally for the collection of such Recreation Pee as a debt and to
foreclose the aforesaid lien in the manner set forth herein. å 16.10 Rules and Regulations. The Declarant shall have the right
from time to time to promulgate Rules and Regulation governing the use of the
Sports Facilities it owns, which may include, but not be limited to, rules
governing the conduct of Owners in the Sports Facilities. These Rules and
Regulations will be binding on all Owners. All grantees and transferees of an
Interest accepting a Warranty Deed, Membership Certificate or otherwise
acquiring title to an Interest, agree to be bound by any such Rules and
Regulations. All guests and invitees of Owners, including all Exchange Users,
shall also be bound by such Rules and Regulations. The Declarant shall also
have the tight to amend any existing Rules and Regulations regarding the Sports
Facilities it owns, to enforce any such Rules and Regulations and to establish
penalties for the violation of any such Rules and Regulations. The penalties
for the violation of any Rules and Regulations may include the suspension of
the right to use the Sports Facilities during the period of any continuing
violation of such Rules and Regulations. A copy of the Rules and Regulations
shall be posted in a conspicuous place within each Sports Facility and/or
copies of same shall be furnished to Owners. å 16.11 Determination to Repair, Reconstruct or
Rebuild. As long as
it holds title to a particular Sports Facility, responsibility for the
maintenance, repair, replacement, restoration, improvement, operation, and
administration of such facility shall be vested solely in the Declarant. As
long as the Declarant holds title to a particular Sports Facility, the
determination whether to repair, reconstruct or rebuild such facility following
any damage or destruction to any portion of such facility shall be the
determination of the Declarant alone and the Declarant shall be under no
obligation to repair, reconstruct or rebuild any such facility or portion
thereof. If title to a particular Sports Facility has been conveyed to the
Association, the facility shall be deemed a Common Area as defined herein and
the determination whether to repair, reconstruct or rebuild such facility
following any damage or destruction to any portion of such facility shall be
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