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4 BML Covenants 4. COMMON AREAS
4.1 Ownership of
Common Areas. Declarant
intends to construct, operate and maintain certain facilities within the
Development from time to time ( the "Common Areas”). The Common Areas
shall be identified and designated by Declarant, who may add to or subtract
from the Common Areas at any time without the consent of the Association. All
Common Areas are private property owned by Declarant and shall remain private
property. Declarant's execution and recording of a Plat shall not be construed
as a dedication to the public of any of the Common Areas. The legal status of
the relation between the Owners and the Declarant, or whatever entity owns the
Common Areas, with regard to the Common Areas, shall be that the owner of a
Common Area shall be deemed a licensor and the Owners shall be deemed
licensees. The Common Areas shall be available to Owners, their families,
guests, invitees and licensees, subject to payment of the Charges described
herein, any individual use or user fees, the Rules and Regulations affecting
each Common Area and any further restrictions or limitations contained therein
or herein. Declarant may, in its sole discretion, convey the Common Areas to the
Association. Declarant may convey each Common Area one at a time, or convey all
Common Areas at the same time. Declarant may convey one, some or all Common
Areas. On the date of said conveyance, the Common Areas, 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 as perpetual
non-exclusive easements from and to the Common Areas 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
Common Areas and shall have no right to refuse such conveyance. Upon conveyance
of some or all of the Common Areas to the Association, all rights, powers,
privileges and immunities of Declarant, as such, with respect to the Common
Area conveyed, shall vest in the Association. Declarant
further reserves the exclusive right to dedicate any roads, streets and avenues
in the Development to public use without the joinder, release or consent of any
Owner, grantee or transferee and such owner, grantee or transferee hereby
releases all damages and claims resulting therefore. As provided
in Section 21.4, as long as the Declarant holds Title to a Common Area,
Declarant reserves the right to change the arrangement of any such Common Area
and to construct additional facilities within any such Common Area. Subject to
the rights of all Owners as set forth in Sections 3.1 and 3.2, so long as it
holds title to a Common Area, Declarant may sell, convey, mortgage, hypothecate
or encumber, lease, rent, use, occupy and improve such Common Area in its sole
discretion. å 4.2 Operation
and Management. As
long as the Declarant holds title to a Common Area, Declarant shall operate and
maintain such Common Area and shall be reimbursed for the cost of such
operation and management by the Association, using the funds provided by the
Association Assessment, as more fully provided in Section 7.5.2. After title to
a Common Area has been conveyed to the Association, the Association shall
maintain and repair any Common Areas that it owns. Nothing
contained herein shall be deemed to preclude the entity which holds title to a
Common Area from allowing members of the general public to use such Common
Areas 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
which holds title to a Common Area shall have the sole and exclusive right and
duty to manage and operate the Common Areas 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 Common Areas, (b) to
promulgate, amend and rescind from time to time general policies and guidelines
governing the use of such Common Areas; (c) to
regulate the use of such Common Areas and establish a use or user fee schedule
for each such facility; (6) to
receive all notices, claims and demands relating to taxes and assessments
affecting such Common Areas; and (e)
to contract with others for the management, maintenance, operation,
construction or restoration of such Common Areas or any portion thereof. å 4.3
Commercial Use. Unless otherwise prohibited by the Community
Declaration covering a particular Common Area., the entity which holds title to
a Common Area shall retain the right to operate or enter into agreements with
third parties which permit such parties to operate commercial ventures,
including, but not limited to, food concessions
within such Common Areas. å 4.4 Damage,
Destruction or Condemnation of Common Areas. 4.4.1 Attorney In Fact. Each owner hereby
irrevocably appoints the Declarant, as to any Common Areas it owns, and/or the
Association, as to any Common Areas it owns, as his Attorney In Fact in his
name, place, and stead for the purpose of dealing with the Common Areas upon
its damage, destruction, condemnation or obsolescence, as hereinafter provided.
As Attorney In Fact, Declarant or the Association, by its authorized officers,
as the case may be, shall have full and complete authorization, right, and
power to make, execute, and deliver any contract, deed, or other instrument
with respect to the interest of an Owner which is necessary and appropriate in
order to exercise the powers herein granted. å 4.4.2
Determination
to Repair, Reconstruct or Rebuild. As long as it holds title to a particular Common
Area, responsibility for the maintenance, repair, replacement, restoration,
improvement, operation, and administration of such Common Areas shall be vested
solely in the Declarant. As long as the Declarant holds title to a particular
Common Area, the determination whether to repair, reconstruct or rebuild such
Common Area following any damage or destruction to any portion of such Common
Area shall be the determination of the Declarant alone and the Declarant shall
be under no obligation to repair, reconstruct or rebuild any such Common Areas
or portion thereof. After title to a
particular Common Area has been conveyed to the Association, as soon as
practicable following any damage to or destruction of any portion of such
Common Area covered by any insurance maintained by the Association, the Board
of Directors shall proceed with the filing and adjustment of all claims arising
under such insurance as a result of such damage or destruction and shall obtain
reliable and detailed estimates of the cost of repairing or restoring such
portion of such Common Area to substantially the same condition in which it
existed prior to the occurrence of such damage or destruction. å 4.4.3
Obligation
to Repair. After title to a particular Common Area has been conveyed to the
Association, any damage to or destruction of any portion of such Common Area
shall be repaired, reconstructed or rebuilt unless at least two-thirds (2/3) of
the Delegates shall determine, within ninety (90) days after the occurrence of
such damage or destruction, not to repair, reconstruct or rebuild the same;
provided, however, that during such time as Declarant owns one (I) or more
Interest in the Development primarily for the purpose of sale, any such
determination not to repair, reconstruct or rebuild shall require the agreement
of Declarant and of at least two-thirds (2/3) of the Delegates, exclusive of
the votes appertaining to Interests owned by Declarant. å 4.4.4 Repair, Reconstruction
and Rebuilding. After title to a particular Common Area has been conveyed to the
Association, all of the work of repairing, reconstructing or rebuilding any
portion of such common Area, the damage to or destruction of which resulted in the payment of
any insurance proceeds under any insurance policy maintained by the
Association, shall be the responsibility of the Association, and shall be
performed under the supervision of the Board of Directors. In discharging such
Supervisory responsibility, the Board of Directors shall be authorized, but
shall not be obligated, to employ as its agent or consultant such building
supervisors or architects as the Board of Directors shall determine. Any fees
which shall be payable to any such building supervisor or architect as shall be
employed by the Board of Directors shall be a Common Expense of the
Association. Any repair, construction
or rebuilding of any portion of such Common Area shall be substantially in
accordance with the plans and specifications for the damaged or destroyed
property prior to the occurrence of such damage or destruction, or in
accordance with such different plans and specifications as may be approved by
the Board of Directors and at least two-thirds (2/3) of the Delegates. The cost
of repairing, reconstructing or rebuilding such portion of such Common Area
shall be paid with any insurance proceeds that shall be paid to the Association
on account of such damage or destruction. If such insurance
proceeds, together with any amounts as may be available from any reserve funds
maintained by the Association for such purposes, are not sufficient to defray
such costs of such repairing, reconstructing or rebuilding, then the Board of Directors
shall levy a Special Assessment against all of the owners to raise the excess
funds necessary to defray such costs, which Special Assessment shall not be
subject to approval by the Owners. å 4.4.5 Property Not Restored. After title to a
particular Common Area has been conveyed to the Association, and in the event
it is determined, in accordance with the provisions of Section 4.4.3, that any
portion of such Common Area shall not be repaired, reconstructed or rebuilt,
any insurance proceeds paid to the Association on account of such damage or
destruction shall be allocated to the Association, which proceeds shall, in the
discretion of the Board, be (i) applied to pay the Common Expenses or (ii) used
to acquire additional real property to be used and maintained for the mutual
benefit of all Owners as a Common Area under this Declaration. å 4.4.6
Condemnation
or Eminent Domain. After title to a particular Common Area has been conveyed to the
Association, and in the event that all or substantially all of such Common Area
is taken by any authority having the power of condemnation or eminent domain,
the proceeds of any award therefor shall be paid to the Association and such
proceeds, together with any Common Area Capital Reserves being held for such
part of the Common Area, shall, in the discretion of the Association Board, be
(i) applied to pay the Common Expenses, or (ii) used to acquire additional real
estate to be used and maintained for the mutual benefit of all Owners, as a
Common Area under this Declaration. If any portion of the
Common Areas is made the subject matter of any condemnation or eminent domain
proceeding or is otherwise sought to be acquired by a condemning authority, all
Mortgagees of Record will be entitled to timely written notice of any such
proceeding or proposed acquisition, and no provision of this Declaration or of
any other instrument relating to the Interests in the Development will entitle
any Owner or other person to priority over any Mortgagee of Record with respect
to the distribution of the proceeds of any award or settlement relating to such
Common Areas. After title to a
particular Common Area has been conveyed to the Association, and in the event
of a partial taking in condemnation or by eminent domain of such Common Area,
the Board shall arrange for any necessary repairs and restoration of the
remaining portion of such Common Area, in accordance with the design thereof,
at the earliest possible date. If such repairs and restoration in accordance
with such design are not permissible under the laws then in force, the Board
shall nonetheless repair and restore the premises as nearly as is reasonably
possible to its condition immediately prior to such taking. The Board is
expressly authorized to pay any excess cost of such restoration as a Common
Expense, and to levy a special Assessment, if necessary, in the event that the
available Association funds are insufficient for such Purpose. In the event that
any such sums are received by the Association in excess of the cost of repairing and
restoring such Common Area, such excess proceeds shall be deemed Common
Surplus. After title to a
particular Common Area has been conveyed to the Association, and in the event
of a partial taking in which any portion of such Common Area is eliminated or
not restored, the Board shall disburse that portion of the proceeds allocable
to such portion, less the proportionate share of said portion in the cost of
debris removal, to the Common Surplus. å | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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