SECOND AMENDMENT TO
PROTECTIVE COVENANTS, EXCEPTIONS, RESERVATIONS AND CONDITIONS
BEECH MOUNTAIN LAKES
THIS SECOND AMENDMENT TO THE DECLARATION OF PROTECTIVE COVENANTS, EXCEPTIONS, RESERVATIONS AND CONDITIONS FOR BEECH MOUNTAIN LAKES (“Second Amendment to the Declaration”) made as of this 23rd day of October, 1985, by BEECH MOUNTAIN LAKES CORPORATION, a Pennsylvania corporation, for itself and it successors and assigns ("Declarant”).
WHEREAS, Declarant is the owner of the real property now known as "Beech Mountain Lakes" formerly known as "Lake of the Four Seasons," a subdivision situated in the Townships of Butler, Foster and Dennison in Luzerne County, Pennsylvania which real property is hereinafter referred to as the “Development"; and
WHEREAS, the Declarant has heretofore filed the Declaration of Protective Covenants, Exceptions, Reservations and Conditions for Beech Mountain Lakes, (“Declaration”), which Declaration was recorded on May 1, 1985, in book 2158, Pages 1022-1103 in the Office for Recording of Deeds, Luzerne County, Pennsylvania; and
WHEREAS, Section 21.4 of the Declaration provides that the Declarant, may amend the Declaration, for whatever reason, at any time prior to December 31, 1985;
NOW THEREFORE the Declaration is amended only as se forth in this Second Amendment to the Declaration. Those Section or subparagraphs thereof contained herein shall supplant and replace the Sections or subparagraphs thereof that bear the same Section or subparagraph number or designation. All other terms of the Declaration not changed by this Second Amendment to the Declaration are reaffirmed. It is the intent of the Declarant that the terms of this Second Amendment to the Declaration shall be effective as of, and relate back to, the date of recordation of the Declaration in the Office for Recording of Deeds, Luzerne County, Pennsylvania.
3.10 Mineral Rights. All coal, oil, gas, mineral, mining and drilling rights are reserved to parties other than the Declarant. Under the Act of Assembly of the Commonwealth of Pennsylvania of 1957, P.L. 984 #1 and its amendments, notice that the title to coal underlying a piece of land and that the right of support are not included must be given to all purchasers. This notice appears in some prior deeds in the chain of title to the lands included in the Development. Therefore, the required notice will be placed in bold type, as required on the face of all deeds to lands in the Development as follows:
THIS DOCUMENT MAY NOT SELL, CONVEY, TRANSFER, INCLUDE OR INSURE THE TITLE TO THE COAL AND RIGHT OP SUPPORT UNDERNEATH THE SURFACE LAND DESCRIBED OR REFERRED TO HEREIN, AND THE OWNER OR OWNERS OF SUCH COAL MAY HAVE THE COMPLETE LEGAL RIGHT TO REMOVE ALL OF SUCH COAL AND, IN THAT CONNECTION, DAMAGE MAY RESULT TO THE SURFACE OF THE LAND AND ANY HOUSE, BUILDING OR OTHER STRUCTURE ON OR IN THE LAND. THE INCLUSION OF THIS NOTICE DOES NOT ENLARGE, RESTRICT OR MODIFY ANY LEGAL RIGHTS OR ESTATES OTHERWISE CREATED, TRANSFERRED, EXCEPTED OR RESERVED BY THIS INSTRUMENT.
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 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 PIat shall not be construed as a dedication to the public of any of the Common Areas. In the event Declarant wishes to change the arrangement of any Common Areas, Declarant shall obtain the approval of fifty percent (50%) of all Owners, other than the Declarant, and one hundred percent (100%) of all Owners, other than the Declarant, whose property shares a common boundary with the property to be specifically changed, prior to instituting any such change. For example, if Declarant proposes to relocate an entire golf course, all Owners whose property shares a common boundary with the golf course must grant their approval for the change. However, if the Declarant proposes to change the location of one hole on the golf course, only the approval of those Owners whose property shares a common boundary with the hole to be changed would be necessary.
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 tree 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 perpetual non-exclusive easements from and to the Common Areas as described herein. Such conveyance shall be made without monetary or other charge to the Association. 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 at 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, cent, use, occupy and improve such Common Area in its sole discretion. Any encumbrance of a Common Area will contain a non-disturbance clause protecting the ownership rights of all Owners.
5.1 Ownership of Community Common Areas. Declarant intends to construct, operate and maintain certain facilities within the Communities from time to time (the “Community Common Areas")
The Community Common Areas shall be identified and designated on a recorded Plat of the Community. The Community Common Areas shall be available only to Owners of the Community in which they are located, 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 Community Common Area and any further restrictions or limitations contained therein or herein.
Declarant may, in its sole discretion, convey the Community Common Areas to the Association or to the Community Association for the Community in which they are located. Declarant may convey each Community Common Area one at a time, or convey all Community Common Areas at the same time. Declarant may Convey one, some or all Community Common Areas. On the date of said conveyance, the Community 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 perpetual non-exclusive easements from and to the Community Common Areas, which 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 or the Community Association, as the case may be, shall be obligated to accept any such conveyance and shall have no right to refuse such conveyance. Upon conveyance of some or all of the Community Common Areas to the Association or a Community Association, all rights, powers, privileges and immunities ot Declarant, as such, with respect to the Community Common Area conveyed, shall vest in the Association or applicable Community Association. Subject to the provisions and limitations of the relevant Community Declaration, so long as it holds title to a Community Common Area, Declarant may sell, convey, mortgage, hypothecate or encumber, lease, rent, use, occupy and improve such Community Common Area in its sole discretion. Any encumbrance of a Community Common Area will contain a non-disturbance clause protecting the ownership rights of all Owners.
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:
Dwelling Unit — 1.0
Commercial Unimproved Lot — 2.0 per acre
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 X # Charter Members)
(1.00 X # Sold Residential Dwelling Units) + (.2 X # Sold Residential Unimproved Lots) + (.2 X # Sold Timesharing Unit Weeks) + (.2 X # Sold Campground Interests) + (2.0 X # Sold Commercial Unimproved Acres) + (2.0 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 ratios 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).
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 upon the approval of fifty Percent (50%) of the Owners, other than the Declarant, affected by such Special Assessment. 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.
21.4 Amendment by Declarant. Declarant reserves the right to amend this Declaration, without the approval of any other Owners or the Association or Mortgagees of Record, for whatever reason, at any time prior to December 31, 1985.
Anything herein to the contrary notwithstanding, Declarant reserves the right and power to record an amendment to this Declaration at any time and from time to time which amends this Declaration (i) to comply with requirements of the Federal National Mortgage Association, the Government National Mortgage Association, the Federal Home Loan Mortgage Corporation, the Department of Housing and Urban Development, the Federal Housing Administration, the Veteran's Administration, or any other governmental agency or any other public, quasi-public or private entity which performs (or may in the future perform) functions similar to those currently performed by such entities, (ii) to induce any of such agencies or entities to make, purchase, sell, insure, guarantee or otherwise deal with first mortgages covering Units, (iii) to correct clerical or typographical errors in the Declaration or any exhibit thereto, (iv) to bring the Declaration into compliance with applicable laws, ordinances or governmental regulations, (v) to amend the Declaration so as to establish a date certain as to Declarant's termination of control of the Association as provided in Section 11.3, or (vi) to testate or compile all previous amendments into a single document.
As provided in Sections 4.1 and 1.6.1, as long as it is deemed the Owner of any Common Area, Community Common Area or Sports Facility, Declarant reserves the right to add to any existing Common Area, Community Common Area or Sports Facility or construct additional Common Areas, Community Common Areas or Sports Facilities.
Further, Declarant may change the arrangement of any Common Area or Community Common Area provided that the necessary consent of the Owners has been obtained consistent with Section 4.1.
Declarant has the right to unilaterally effectuate any such amendments to this Declaration as may be necessary or required in Declarant’s sole discretion, to effectuate such actions, provided that such amendment shall not increase the proportion of Common Expenses borne by Owners, decrease an Owner's voting rights or decrease the size of an Owner's Interest.
In addition, pursuant to Section 7.4, prior to the Turnover Date, the Declarant reserves the right and power to record an amendment to this Declaration to establish additional categories of properties and ratios for the allocation of the Association Assessment for such additional categories.
In furtherance of the foregoing, a power coupled with an interest is hereby reserved and granted to the Declarant to make or consent to such amendments on behalf of each Owner, each deed, Membership Certificate, mortgage, trust deed, other evidence of obligation, or other instrument affecting a Unit and the acceptance thereof shall be deemed to be a grant and acknowledgement, and a consent to the reservation of, the power to the Declarant to make, execute and record such amendments. The right and power to make such amendments hereunder shall terminate at such time as the Declarant is no longer Vested with or controls title to Any Interest in the Development.
Any such amendments to this Declaration shall become effective upon the recording in the Office for Recording of Deeds, Luzerne County, Pennsylvania, of an instrument executed by Declarant, setting forth the text of such amendment in full, together with the appropriate recording data for this Declaration. Such amendment need only be executed and acknowledged by Declarant, and need not be consented to by any Owners, Community Association, the Association, any Mortgagees of Record, lienholders or any other parties.
Notwithstanding the above, a Community Declaration shall be amended only as provided in each respective Community Declaration.