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7 BML Covenants 7. ASSESSMENTS
AND OTHER CHARGES
7.1 Purpose. The Annual Assessment and any
other applicable Assessments or Charges shall be used exclusively to promote
the recreation, health, safety, and welfare of the Owners, for the
reimbursement of expenses incurred by the Association or its assigns, and for
other expenses incurred in the performance of the duties of the Association or
its assigns as set forth in this Declaration. å 7.2 Annual
Assessment. Each Owner (except the Declarant, prior to the turnover Date) 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, prior to the Turnover Date, the Declarant shall not be responsible
for, or be obligated to pay any Annual Assessments pursuant to this section.
After 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. The amount of each Owner's Annual Assessment shall be determined as
follows: (a) Association
Assessment: The Declarant, until the Association is re-activated, 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." (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 Community
Declaration. Unless otherwise provided in the Community Declaration, the Community
Assessment shall be collected by the Association as a part of the Annual
Assessment. å 7.3 Budgets. 7.3.1 Association
Budget. Each year
on or before December 1, the Declarant, until the Association is re-activated,
and thereafter, the Board, shall adopt and make available to each Owner a
budget for the ensuing year commencing January 1, which shall be prepared as
follows: (a) The Association budget shall be prepared on a calendar
year basis. (b) The Association budget shall utilize the same categories
of revenues and expenses as appear in the audited financial statements for the
Association for the previous year. (c) The Association budget shall include the amounts in each
category of revenue and expenses for: (i) the previous year as shown in the
audited financials for the Association; (ii) the current year as shown in unaudited
financials ending September 30; and (iii) the
ensuing calendar year. (d) The Declarant, or the Association, as the case may be, shall provide
the proposed Association budget to the Delegates from each Community and shall
consult with the Delegates prior to establishing the final operating budget. å 7.3.2 Community
Association Budget.
The budget for a particular Community Association shall be prepared as set
forth in the Community Declaration and By-Laws for each Community. However, if
the Community Assessment is levied by the Declarant or the Association, the
entity which levies the Community Assessment, shall, annually, provide the
proposed operating budget for each Community for the ensuing fiscal year to the
Delegates from each affected Community
and shall consult with the Delegates from the affected Community prior to
establishing the final operating budget for such Community. 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 the status of improvement to that property and shall be based on
the following ratios: Residential
Dwelling Unit — 1.0 Commercial
Improved Lot — 2.0 per acre 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 hereof. 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 hereof. (b) The formula
used to calculate the Association Assessment is as follows: Association Assessment per Residential Dwelling Unit = _________Total Estimated Common Expenses for ensuing year___________ ($120.00 X # Charter Members) + (1.00 X # Sold Residential
Dwelling Units) + ( ____X # Sold Residential Unimproved Lots) + (
___ X # Sold Timesharing Unit Weeks) + ( ___X # Sold Campground
Interests) + ( ___ X # Sold Commercial Unimproved Acres) + ( ___ x #
Sold Commercial Improved Acres). 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 B hereto,
which is incorporated herein by reference, who originally purchased lots from
Eastern Pennsylvania Marine Properties, Inc., and who still own 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 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). å 7.5 Common
Expenses. 7.5.1 Elements
of Common Expenses. The Common Expenses which shall be payable by the Association from
Annual Assessments collected shall consist of, but not be limited to, costs of
the following items: (a) the expenses of administration (including management and
professional services), operation maintenance, repair, replacement,
beautification and landscaping of the Common Areas including, a reasonable
management tee to the Declarant for the operation and management of any Common
Areas which it owns, such fee not to exceed five percent (5%) of gross
Association Assessments. If the Declarant is responsible for the operation and
maintenance of a Common Area, the Declarant shall be reimbursed for all
reasonable expenses association with such operation and maintenance, as
provided in section 7.5.2 below. (b) additions to the Community Area Capital Reserve; the cost of insurance, water, waste removal and scavenger services, electricity, telephone and other necessary utility expenses for the Common Areas; (c) the cost of general and special real estate taxes and
assessments levied or assessed against the Common Areas; (d) the cost of, and the expenses incurred for, the maintenance,
construction, repair and replacement of personal property acquired and used by
the Association in connection with the operation of the Common Areas; (e) the cost of providing security service to the entire
Development; (f) the establishment and maintenance of a reasonable reserve fund or
funds to cover operating contingencies or deficiencies arising from unpaid
Assessments, other Charges, liens, emergency expenditures and other matters as
may be authorized from time to time by the Board of Directors; (g) any expenses designated as Common Expenses by this Declaration; and (h) any other expenses lawfully incurred by the Association
for the common benefit of all of the Owners. Common Expenses shall not include
any Community Expenses. å 7.5.2 Reimbursement
of the Declarant.
The Declarant shall be reimbursed for the reasonable expenses it incurs in the
operation and maintenance of any Common Areas for which it is responsible. Such
expenses shall be determined by one of the methods described below or by a
combination of the methods: (a) The expenses
may be based upon reasonable cost allocations for the common Areas as
determined by generally accepted accounting principles, based upon industry
standards for such facilities as applied against the cost associated with such
facilities, including the general and administrative expenses incurred by
Declarant based upon the preceding twelve month period. (b) The expenses
may be determined by establishing a formula based upon the Common Areas
available to the Development, and the total number of Owners, occupants, or any
other lawful users of the facilities, as applied to the costs of operations of
such facilities, including general and administrative expenses incurred by the
Declarant for the operation and maintenance of the facility based on the
preceding twelve-month period. 7.6 Community Expenses. The Community Expenses which shall
be payable from the Community Assessments collected shall consist of, but not
be limited to, costs of the following items: (a) the expenses of administration (including management,
security, and professional services), maintenance, operation, repair,
beautification and replacement of a Community Common Area; (b) additions to the Community Common Area Capital Reserves; (c) the cost of insurance, real estate taxes and
assessments, water, waste removal, electricity, telephone and other necessary
utility expenses for the Community Common Area; (d) the cost of and the expenses incurred for the
maintenance, construction, repair and replacement of personal property used by
the Association only in connection with the operation of the Community Common
Area; (e) any expense designated as a Community Common Area
Expense by this Declaration or the applicable Community Declaration; (f) any expenses incurred by the Association which, pursuant
to generally accepted accounting principles, can reasonably be allocated to the
Community Common Area; and (g) any other expenses lawfully incurred by the Association
for the common benefit of the Community Owners. Community Expenses shall be determined on a Community-by-Community basis
and no expenses incurred for any one Community shall be deemed to be a
Community Expense for any other Community. Community Expenses shall not be
deemed to be, and shall not be deemed to include, Common Expenses. In the event
that certain expenses are Incurred by the Association in connection with the
operation of a given Community Common Area and another Community Common Area
and/or the Common Areas, the allocation of expenses between the Common Expenses
and the various Community Expenses shall be made by the Association Board based
on generally accepted accounting principles consistently applied, and any allocation
so made shall be final and binding. å 7.7 Revised
Assessments. If the Annual Assessments collected from the Owners are at any time
inadequate to meet the costs and expenses incurred by or imposed upon the
Association for any reason, including, but not limited to, the non-payment by
any Owner of any Assessment, the Association may increase the Annual Assessment
in such amount as the Association determines to be necessary to pay the
Association's costs and expenses, which all Owners, with the exception of
Declarant, shall be obligated to pay. The Association shall give written notice
thereof (together with a revised budget and explanation for the adjustment) to
each Owner not less than ten (10) days prior to the effective date of the
revised Assessment. å 7.8 Special
Assessments. The Association Board may levy a Special Assessment as provided in this
Section: (a) to pay (or build up reserves to pay) expenses other than
Common Expenses or Community Common Area Expenses incurred (or to be incurred)
by the Association from time to time for a specific purpose, including, without
limitation, to make alterations, additions or improvements to the Common Areas,
any Community Common Area or any other property owned or maintained by the
Association; or (b) to repair damage caused by extraordinary causes other
than normal wear and tear which are not covered by insurance, including,
without limitation, such causes as flooding, tornadoes, hurricanes and strong
winds. A Special Assessment for expenditures for the benefit of the Owners in a
particular Community or their Community Common Area shall be levied only
against such Community Owners, based on their respective Interests in the
Community property. Any other Special Assessment shall be levied against all of
the owners, based on their respective Interests in the Development. The Association Board shall serve notice of a Special Assessment on all
Owners who shall be subject to payment thereof by a statement in reasonable
detail, and the Special Assessments shall be payable in such manner and on such
terms as shall be fixed by the Association Board. Any assessments collected
pursuant to this Section shall be segregated in a special account and used only
for the specific purpose set forth in the notice of assessment. å 7.9 Personal
Charges. Each Owner
shall be responsible for paying to the Declarant, the Association or his
Community Association any and all expenses incurred as a result of the act or
omission to act of the Owner or such Owner's family, guests, invitees or
licensees, including, but not limited to, the cost of any exterior maintenance
as provided in Section 3.7; the cost of repair, maintenance or restoration as
provided in section 12.11; the cost to satisfy any expenses arising from an
intentional or negligent act or omission of an Owner, a member of his family,
his guests, invitees or licensees (to the extent not covered by insurance) or
resulting from his breach of the provisions of the Association Instruments; and
any late fees, fines, attorneys' fees and other amounts which the Association
Instruments expressly permit to be assessed upon a particular Lessee. Such
Personal Charges shall be paid by each Owner within thirty (30) days after the
date upon which a notice of such Personal Charges is mailed to the responsible
Owner. Any Personal Charge shall be a lien on the Unit that is the subject of
the Personal Charge, shall be a personal obligation of the Owner and shall be
due and payable, together with interest, charges, penalties and late fees as
provided by the Board. Fees for costs of collection by any Personal Charges,
including reasonable attorneys' fees, shall be subordinate to the interest of
any Mortgagee of Record. å 7.10 Liability
for Assessments and Other Charges. No Owner may exempt himself, his successors or
assigns, from his obligation to pay any Assessments or other Charges by his
waiver of the use and enjoyment of any of the Common Areas or Community Common
Areas or by the abandonment of his Interest. å 7.11 Initial Working Capital Contribution. The Association reserves the right
to require each purchaser of an Interest in the Development to make a working
capital contribution to the Association at the time of purchase. The
Association shall determine the amount of such contribution, based on the same
allocation ratio provided in Section 7.4 hereof. Said amount shall be placed in
a separate account and shall be used by the Association as a working capital
reserve. å 7.12 Capital Reserves. The Association shall segregate
and maintain separate special reserve accounts to be used solely for making capital
expenditures in connection with the Common Areas (the "Common Area Capital
Reserve") and each Community (the "Community Common Area Capital
Reserve"). The Association Board shall determine the appropriate level of the
Common Area Capital Reserve based on a periodic review of the useful life of
improvements to the Common Areas and equipment owned by the Association and
periodic projections of the cost of anticipated major repairs or replacements
to Common Areas and the purchase of equipment to be used by the Association in
connection with its duties hereunder. The Delegates from each Community shall, in consultation with the
Association Board, determine the appropriate level of the Community Common Area
Capital Reserve for its Community Common Area based on a periodic review of the
useful life of improvements to the Community Common Area and periodic
projections of the cost of anticipated major repairs or replacements to the
Community Common Area and the purchase of equipment to be used by the Association
only in connection with its duties with respect to the Community Common Area. Each budget shall disclose that percentage of the Annual Assessment
which shall be added to the Common Area Capital Reserve and that percentage of
the Community Assessment which shall be added to the Community Common Area
Capital Reserve and each Owner shall be deemed to make a capital contribution
to the Association equal to such percentages multiplied by each installment of
the Association Assessment and Community Assessment, respectively, paid by such
Owner. å 7.13 Surplus Funds. The Association, through its Board
of Directors, shall, from time to time, fix and determine the sum or sums which
are necessary and adequate to provide for the Common Expenses and Community
Expenses and such other charges as are specified herein. The procedure for
determining all Charges shall be as set forth in the By-Laws and this
Declaration. In the event that the Board determines at any time during the
Association's fiscal year that the aggregate amount of Assessments is, or will
be, in excess of the amounts needed to meet the Common Expenses or Community
Expenses, such excess amount shall appear as a line item on the Association's
budget for the immediately succeeding fiscal year, and shall be applied to
reduce the amount assessed to meet the Common Expenses or Community Expenses
for such fiscal year. Any such excess shall not relieve any Owner from his
obligation to pay any delinquent amounts that he owes the Association, nor
shall any Owner be entitled to a refund of all or any portion of any Assessment
previously paid on account of such excess. å 7.14 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 to the Association, and/or the Community
Association for the Community in which the Owner has an Interest, the Charges,
together with any interest thereon, against his Interest during his ownership
thereof as shall be fixed or assessed by the Association or such Community
Association in accordance with the terms and provisions of this Declaration,
any applicable Community Declaration, the Articles of Incorporation and the
By-Laws of the Association, and/or the Community Association for the Community
in which the Owner has an Interest. Each Charge 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 any Charge, late fees, interest, and costs of collection thereof,
including reasonable attorneys' fees, is secured by a lien or lien right in
favor of the Association, and/or the Community Association for the Community in
which the Owner has an Interest, 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 hereunder shall continue in full force and effect until
fully paid or otherwise discharged. The lien against an Interest for unpaid
Assessments 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
Association or the applicable Community Association 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 7.15 Subrogation. For purposes of enforcing any
provision of this Declaration and particularly for the purpose of collecting
unpaid Charges due hereunder from Owners who are personally liable for any debt
or violation of any provision of this Declaration, if the Association so
desires, the Community Associations hereby agree to subrogate any rights they
may have to collect Charges from any Community Association’s membership or
Owner under any other set of recorded restrictions, covenants or other rights
such Community Association may have to such collection to the Association. The
Association shall have such rights and remedies as those of the Community
Association for purposes of collecting said Charges from Owners or Community
Association members. å 7.16 Effect of Transfer of Interest. The sale or transfer of any
Interest shall not affect the lien set forth in Section 7.14, above, and any
grantee or transferee shall be jointly and severally liable for the portion of
any Charge 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
Charges 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 Charges against such
Interest in excess of the amount set forth in such statement. å 7.17 Mortgagee Protection. Notwithstanding any other provision
of this section 7, 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 Charges due and owing on
such Interest prior to the date such Mortgagee of Record obtained title
thereto. Said Charges, unless collected from the prior owner, shall be deemed a
Common Expense paid by the Association from fees collected. The Association
shall remain entitled to recover any unpaid Charges from the Owner whose
Interest was foreclosed upon. å 7.18 Non-Payment of Assessments and Other
Charges. In
addition to all other remedies provided by law, the Association may enforce
collection of all delinquent Assessments or other Charges, together with such
other amounts as may be owing the Association, as provided in this Section
7.18. Any Assessment or other Charge, or portion thereof, not paid when due
shall be deemed delinquent. å 7.18.1 Interest
and Late Charge.
Any Assessment or other Charge not paid when due shall be deemed delinquent.
Any Assessment or other Charge 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 Assessment or other Charge which is
more than thirty (301 days delinquent will be charged a late fee of $25.00. å 7.18.2 Additional
Remedies. If any delinquent Assessment or other Charge portion thereof is not
paid within fifteen (15) days after written notice is given to the Owner to
make such payment, the Board of Directors shall have the right to invoke any or
all of the following remedies: (a) The entire
unpaid balance of the Assessment or Charge may be accelerated at the option of
the Board of Directors and may be declared due and payable in full, and
foreclosure proceedings may be instituted to enforce the lien of the
Association; (b) The rights of
the owner to use the Common Areas and/or the Community Common Areas may be
suspended; (c) The Association may bring an action at law against the Owner
personally obligated to pay the same; and (d) The Association 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 Assessments or
other Charges then due and payable, including any interest accrued thereon. å 7.18.3 Collection. All payments on account shall be
applied first to the aforesaid costs of collection, then to interest, and then
to the Charge lien first due. All interest collected shall be credited to the
common fund of the Association to be applied against the Common Expenses. Each
Owner vests in the Board of Directors the right and power to bring all actions
against him personally for the collection of such Charge as a debt and to
foreclose the aforesaid lien in the manner set forth herein. å 7.19 Books and Records. The Association shall operate and
maintain books and records on a calendar year basis. An annual audited
financial statement for the Association, prepared by independent certified
public accountants, shall be available to all Owners, Mortgagees of Record and
insurers by March 1st of each year. å Current copies of the Declaration, the Community Declaration, the
Association Instruments, recorded Plats of property within the Development, all
Rules and Regulations, as well as the Association books, records and financial
statements shall be available, upon written request, for inspection by Owners,
insurers and Mortgagees of Record during normal business hours. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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