AMENDED AND RESTATED DECLARATION OF COMMON OPEN SPACE FOR BECKETT RIDGE ASSOCIATION - I
WHEREAS, the Beckett Ridge Joint Venture executed the Declaration of Common Open Space, Beckett Ridge Association-I, dated August 31, 1976, filed for record on September 2, 1976 and recorded in Volume 1253, page 19 of the Deed Records of Butler County, Ohio (the “Declaration”); and
WHEREAS, the Declaration subjected certain portions of Beckett Ridge Subdivision to its terms and conditions and provided that Beckett Ridge Association – I was responsible for the administration of those terms and conditions; and
WHEREAS, the Declaration was amended by a Certificate of Amendment, dated April 3, 1977, filed for record on April 7, 1977, and recorded in Volume 1286, page 141 of the Deed Records of Butler County, Ohio; and
WHEREAS, the Declaration was amended by a Certificate of Amendment No. 2, dated July 26, 1978, filed for record on August, 1978, and recorded in Volume 1337, page 312 of the Deed Records of Butler County, Ohio, and
WHEREAS, the Beckett Ridge Joint Venture executed the Declaration of Common Open Space, Beckett Ridge Association-II, dated May 17, 1978, and recorded in Volume 1329, page 106 of the Deed Records of Butler County, Ohio (“Declaration II”); and
WHEREAS, Declaration II subjected certain portions of Beckett Ridge Subdivision which were not subject to the Declaration to its terms and conditions and provided that Beckett Ridge Association – II was responsible for the administration of those terms and conditions; and
WHEREAS, the Declaration and Declaration II were amended by a Termination of Declaration of Common Open Space, Beckett Ridge Association-II, dated August 25, 1978, filed for record on August 29, 1978, and recorded in Volume 1340, page 599 of the Deed Records of Butler County, Ohio; and which terminated Declaration II, dissolved Beckett Ridge Association – II, and subjected all property then within Beckett Ridge Subdivision to the terms and conditions of the Declaration; and
WHEREAS, subsequently in 1989, Sanctuary Development Corporation executed the Declaration of Covenants, Conditions, and Reservation of Easements for Beckett Ridge Association-II, dated April 25, 1989, filed for record May 5, 1989, and recorded in Volume 1663, page 267 of the Deed Records of Butler County, Ohio, which subjected certain property within Beckett Ridge Subdivision to its terms and conditions and reincorporated Beckett Ridge Association - II; and
WHEREAS, Beckett Ridge Association – II was subsequently merged into Beckett Ridge Association – I, and provided that Beckett Ridge Association – I would administer the terms and condition of both declarations; and
WHEREAS, the Declaration provides that it may be amended by a vote of the Members exercising not less than seventy-five (75%) of the voting power of the Association; and
WHEREAS, the Declaration of Covenants, Conditions, and Reservation of Easements for Beckett Ridge Association-II provided that it may be amended by a vote of the Members exercising not less than two-thirds (2/3) of the voting power of the Association; and
WHEREAS, all properties within Beckett Ridge Subdivision that have been duly annexed to the terms of the Declaration of Common Open Space and the Declaration of Covenants, Conditions, and Reservation of Easements for Beckett Ridge Association-II by various Annexations of Property filed with the Recorder of Butler County, Ohio; and
WHEREAS, Beckett Ridge Subdivision consists of numerous sections and neighborhoods each with covenants and restrictions that may be outdated and that are not necessarily consistent throughout the entire subdivision; and
WHEREAS, the Members of the Association desire to update the covenants and restrictions and to set forth a consistent and uniform set of covenants and restrictions for the entire subdivision; and
WHEREAS, the Members of the Association desire to amend the Declaration of Common Open Space and the Declaration of Covenants, Conditions, and Reservation of Easements for Beckett Ridge Association-II to provide a general plan for the overall maintenance, administration, governance and protection of the value and desirability of the properties subject to the Declaration; and
WHEREAS, the Members of the Association desire that this Amended and Restated Declaration take the place of and be substituted for both the Declaration of Common Open Space, Beckett Ridge Association-I and the Declaration of Covenants, Conditions and Reservation of Easements for Beckett Ridge Association-II;
NOW THEREFORE, Beckett Ridge Association-I hereby amends and restates the Declaration of Common Open Space, Beckett Ridge Association-I and the Declaration of Covenants, Conditions, and Reservation of Easements for Beckett Ridge Association-II as herein set forth, declaring that the Property described in Exhibit "A" shall be held, sold and conveyed subject to the covenants, conditions, restrictions and reservation of easements herein. This Amended and Restated Declaration shall be for the purpose of protecting the value and desirability of and which shall run with the Property and any subsequently added hereafter, and shall be binding on all parties having any right, title or interest in the Property, their heirs, successors and assigns, and shall inure to the benefit of each owner thereof.
ARTICLE I DEFINITIONS
1.1. Assessments. "Assessments" means those charges upon the Parcels established by Article VII of this Declaration.
1.2. Association. "Association" means Beckett Ridge Association - I, Inc., an Ohio nonprofit corporation, its successors and assigns. “Association” shall also include Beckett Ridge Association – II, an Ohio nonprofit corporation which was merged into Beckett Ridge Association – I by a Certificate of Merger filed with the Secretary of State on March 22, 1990. Except as the context otherwise requires "Association" shall mean the Board of Directors acting on behalf of the Association.
1.3. Board. "Board" shall mean the Board of Directors of the Association.
1.4. Common Expense Liability. "Common Expense Liability" means the liability for Common Expenses allocated to each Parcel pursuant to Article III, of this Declaration.
1.5. Common Expenses. "Common Expenses" means expenditures made by, or financial liabilities of, the Association, together with any allocations to reserves.
1.6. Common Open Space. "Common Open Space" shall mean any real estate owned or leased by the Association other than a Parcel, including easements in favor of the Association.
1.7. Condominium Declaration. “Condominium Declaration” shall mean a declaration, including any amendments or supplements thereto, which submits any portion of the Property to the provisions of Chapter 5311 of the Ohio Revised Code.
1.8. Condominium Drawings. “Condominium Drawings” shall mean the drawings required by Chapter 5311.07 of the Revised Code filed with the Butler County Recorder that set forth the boundaries of Condominium Units within the Property.
1.9. Declaration. "Declaration" means this Amended and Restated Declaration of Common Open Space for Beckett Ridge Association - I, including any amendments or supplements hereto.
1.10. Dwelling Unit. "Dwelling Unit" shall mean a portion of the Property intended for use, and occupancy as an attached or detached residence for a single family, and shall, unless otherwise specified, include within its meaning (by way of illustration, but not limitation) condominium units, townhouse units, cluster homes, patio or zero lot line homes, and single-family detached houses on separately platted lots. The term shall include all portions of the lot owned as well as any structure thereon. In the case of a multi-family building or other structure which contains multiple dwellings, each dwelling shall be deemed to be a separate Dwelling Unit.
1.11. Golf Course. “Golf Course” shall mean the eighteen hole (18) golf course, practice area, cart paths and maintenance facilities situated on the Golf Course Property.
1.12. Golf Course Property. “Golf Course Property” shall mean all land and facilities adjacent to or in the vicinity of the Property, including but not limited to the eighteen hole (18) golf course, cart paths, maintenance buildings, practice area, parking lot, and clubhouse, which are privately owned by the Golf Course Property Owner, or its successors, successor-in-title, or assigns. The Golf Course Property is not a part of the Property, nor is it governed by the provisions of this Declaration, except as expressly and specifically provided herein. No Owner or occupant, nor the Association, shall have any rights in and to, or obligations with respect to, the Golf Course or Golf Course Property, except as expressly and specifically provided herein. Portions of the Open Space adjacent to and adjoining the Golf Course Property and being or appearing to be part of the Golf Course Property may be maintained exclusively by the Golf Course Property Owner.
1.13. Golf Course Property Owner. “Golf Course Property Owner” shall mean the record title holder, whether one or more persons or legal entities, to the fee simple title to the Golf Course Property.
1.14. Member. "Member" means any person or entity entitled to membership in the Association as provided herein.
1.15. Neighborhood. “Neighborhood” shall mean and refer to each separately developed residential area comprised of one (1) or more housing types subject to this Declaration, in which owners may have common interests other than those common to all Association Members, such as a separate dwelling type, entry feature, development name, and/or common areas and facilities which are not available for use by all Association Members. Neighborhoods shall be declared and defined in a Record Plat, Condominium Drawings or a Supplemental Declaration. Where the context permits or requires, the term Neighborhood shall also refer to the Neighborhood Committee (established in accordance with the Code of Regulations) or Neighborhood Association (as defined below) having jurisdiction over the property within the Neighborhood. It shall not be necessary for any Neighborhood to be governed by a Neighborhood Association except in the case of a condominium or otherwise as required by law. Neighborhoods may be divided or combined in accordance with Article II, Section 2.3.2 of this Declaration.
1.16. Neighborhood Assessments. "Neighborhood Assessments" shall mean assessments levied against the Parcels in a particular Neighborhood or Neighborhoods to fund Neighborhood Expenses, as more particularly described in Article VII, Section 7.4 of this Declaration.
1.17. Neighborhood Associations. "Neighborhood Associations" shall mean a condominium unit owners association as defined in Section 5311.01 (DD) of the Revised Code or a home owner association duly incorporated under the provisions of Chapter 1702 of the Revised Code, which is responsible for a particular Neighborhood or Neighborhoods,
1.18. Neighborhood Expenses. "Neighborhood Expenses" shall mean and include the actual and estimated expenses incurred by the Neighborhood Association for the benefit of Owners of Parcels within a particular Neighborhood or Neighborhoods, which may include a reasonable reserve for capital repairs and replacements, all as may be specifically authorized from time to time by the Neighborhood.
1.19. Occupant. "Occupant" means any person in possession of a Lot or Dwelling Unit whether or not such possession is lawful and shall include but not be limited to, an Owner's family members, guests, invitees, tenants and lessees.
1.20. Open Space. “Open Space” means the property required to be left open and unbuilt upon by West Chester Township. Unless otherwise approved by West Chester Township, the Golf Course shall be the designated Open Space.
1.21. Owner. "Owner" shall mean and refer to one or more persons who hold the record title to any Parcel which is part of the Property, but excluding in all cases any party holding an interest merely as security for the performance of an obligation. If a Dwelling Unit is sold under a recorded land installment contract and the contract specifically so provides, then the purchaser (rather than the fee owner) will be considered the Owner. If a Dwelling Unit is subject to a written lease with a term in excess of one (1) year and the lease specifically so provides, then upon filing a copy of the lease with the Board of Directors the lessee (rather than the fee owner) will be considered the Owner for the purpose of exercising all privileges of membership in the Association.
1.22. Parcel. "Parcel" means the physical portion of the Property designated for separate ownership or occupancy, the boundaries of which are described pursuant to Article II, Section 2.1, and which has been assigned a permanent parcel number on the records of the Butler County Auditor.
1.23. Property. "Property" means the real estate described in Exhibit "A" attached hereto and any other property, which may be made subject to the terms of this Declaration, together with any improvements, made thereon.
1.24. Record Plats. "Record Plats" means the record plats for Beckett Ridge Subdivision, as recorded in the Butler County Recorder’s Plat Records, and any subsequent plats or replats thereof.
1.25. Supplemental Declaration. "Supplemental Declaration" shall mean an amendment or supplement to this Declaration which imposes, expressly or by reference, additional restrictions and obligations on the land described therein, or designates property as a Neighborhood. Supplemental Declaration shall also include any restrictions, reservations, covenants and conditions that have been previously filed with respect to any portion of the Property.
1.26. Surface Water Management System. "Surface Water Management System" shall mean the system designed for the Property for storm water, soil erosion and sediment control. Such system shall include all existing watercourses, ditches, retention basins and swales located in the Property.
ARTICLE II
DWELLING UNITS, PARCELS AND NEIGHBORHOODS
2.1. Types of Dwelling Units. There shall be three types of Dwelling Units within the Property, which are described as follows:
2.1.1. Condominium Units. These Dwelling Units shall be “residential units” as defined in Section 5311.01 (BB)(1) of the Ohio Revised Code.
2.1.2. Standard Single Family Units. These Dwelling Units shall be detached single-family dwellings located on fee simple lots created by a subdivision plat in accordance with Chapter 711 of the Ohio Revised Code.
2.1.3. PUD Units. These Dwelling Units shall be attached or detached single-family dwellings located on fee simple lots created by a subdivision plat in accordance with Chapter 711 of the Ohio Revised Code, but by variance of zoning requirements do not meet the requirements of a Standard Single Family Unit. Examples of such units are townhouse units, cluster homes, patio or zero lot line homes,
2.2. Description of Parcel Boundaries. The boundaries of the Parcels shall be those as set forth on the Record Plats and Condominium Drawings.
2.3. Neighborhoods. Every Parcel shall be located within a Neighborhood as defined in Article I. The Parcels within a particular Neighborhood may be subject to additional covenants and/or the Parcel Owners may all be members of another owners association ("Neighborhood Association") in addition to the Association, but no such Neighborhood Association shall be required except in the case of a condominium or otherwise as required by law. Any Neighborhood which does not have a Neighborhood Association may elect a Neighborhood Committee, as described in Article V, Section 3, of the Code of Regulations, to represent the interests of Owners of Parcels in such Neighborhood.
2.3.1. A Neighborhood, upon the affirmative vote, written consent, or a combination thereof, of a majority of Owners within the Neighborhood, may require that the Association provide a higher level of service or special services for the benefit of Parcels in such Neighborhood. In such event, the Association shall provide such services and the cost of such services shall be assessed against the Parcels within such Neighborhood as a Neighborhood Assessment pursuant to Article VII hereof.
2.3.2. Upon a petition signed by a majority of the Parcel Owners in the Neighborhood, any Neighborhood may also apply to the Board of Directors to divide the property comprising the Neighborhood into two (2) or more Neighborhoods or to combine two (2) Neighborhoods into one (1) Neighborhood. Any such application shall be in writing and shall include a plat of survey of the entire parcel which indicates the boundaries of the proposed Neighborhood(s) or otherwise identifies the Parcels included within the proposed Neighborhood(s). A Neighborhood consolidation shall automatically be deemed granted upon the applicant filing the required documents with the Board. A Neighborhood division requested by the Neighborhood shall automatically be deemed granted unless the Board of Directors denies such application in writing within thirty (30) days of its receipt thereof. The Board may deny an application only upon determination that there is no reasonable basis for distinguishing between the areas proposed to be divided into separate Neighborhoods. All applications and copies of any denials shall be filed with the books and records of the Association and shall be maintained as long as this Declaration is in effect. 2.4. There are ____ Neighborhoods within the Property which are identified in Exhibit B, attached hereto..
ARTICLE III
ALLOCATION OF COMMON EXPENSE LIABILITY AND VOTES
3.1. Common Expense Liability. The allocation of Common Expense Liability shall be determined in accordance with the allocation of the various assessments as set forth in Article VII, Section 7.9.
3.2. Votes in the Association. The allocation of votes in the Association shall be one vote per Parcel.
ARTICLE IV
COMMON OPEN SPACE AND EASEMENTS
4.1. Description. The Common Open Space shall be any portion of the Property owned by the Association in fee or by easement or leased to the Association. The Golf Course is not part of the Common Open Space.
4.2. Easements. The Property shall be subject to certain easements. These easements shall be appurtenant to and pass with the title to the Parcels.
4.2.1. Enjoyment. The Common Open Space shall be subject to an easement of enjoyment in favor of the Parcels and Owners. Such easement shall be limited to the purposes for which the easements are created. Nothing herein shall be construed to provide any right of access to the Parcels by any persons who are not Owners thereof.
4.2.2. Access. The Common Open Space shall be subject to permanent non-exclusive easements for ingress and egress in favor of the Parcels. This non-exclusive easement is granted to the Owners of all Parcels, Occupants, their guests and invitees, and to all police, fire and other emergency personnel, and to all similar persons, and to the local governmental authorities, but not to the public in general, to enter upon the Common Open Space in the performance of their duties.
4.2.3. Easement for Golfers. The Parcels adjacent to the Golf Course are subject to an easement permitting golfers whose balls unintentionally enter upon such Parcels to enter upon such Parcel at reasonable times and in a reasonable manner to retrieve errant golf balls. The Owners of the Parcel adjacent to the Golf Course acknowledge, understand and assume the risk of damage negligently caused by errant golf balls, but not as to damage caused by reckless or intentional acts.
4.2.4. Drainage. The Common Open Space shall be subject to easements in favor of the Parcels benefited for Surface Water Management as further defined in Article V. No Owner shall do anything on or within a Parcel or Dwelling Unit that shall unreasonably increase the flow of surface water.
4.2.5. West Chester Township. A non-exclusive easement is granted to West Chester Township, and to all police, fire and other emergency personnel, ambulance operators, delivery, garbage and trash removal personnel, and to all similar persons, and to the local governmental authorities, but not to the public in general, to enter upon the Common Open Space and the Surface Water Management System in the performance of their duties.
4.3. Owner's Delegation Rights. Any Owner may delegate his or her easement rights and rights of enjoyment to the Common Open Space to any Occupants, and any guests, invitees, tenants or lessees thereof. Any Owner who has leased his or her Parcel shall be deemed to have delegated such rights. Any such delegation, however, shall in accordance with and subject to reasonable rules, regulations and limitation as may be adopted by the Association in accordance with its Code of Regulations.
4.4. Use of Common Open Space. No Owner or Occupant shall use or permit the use of Common Open Space, except in accordance with the following provisions and in accordance with rules, regulations and guidelines adopted by the Board.
4.4.1. Normal Yard Use. Owners, occupants, their guests and invitees may use the Common Open Space adjacent to the Owner’s Parcel for normal yard and recreation purposes, provided that such use is in accordance with these guidelines.
4.4.2. No Fencing. No Owner or occupant may enclose or obstruct any portion of the Common Open Space by means of a fence, wall, hedge or similar barrier.
4.4.3. No Permanent Structures. No Owner or occupant may install or place any structures, storage sheds, gardens, play equipment, barbeque grills, pet containment areas, or other man-made improvements on Common Open Space.
4.4.4. Accessibility. All access shall be limited to foot only. No wheeled or motorized vehicles are permitted, except for maintenance purposes.
4.4.5. Vegetation. Except for the ordinary mowing of grass, any cutting of trees, ground cover or vegetation, or destroying by means of herbicides or pesticides is prohibited within the Common Open Space. The placement of additional trees, ground cover or vegetation is permitted upon prior written approval of the Association.
4.4.6. Land Surface Alteration. Dumping of items in the Common Open Space is strictly prohibited without prior approval of the Board.
4.4.7. Recreational Use. Owners, occupants, their guests and invitees may use the Common Open Space adjacent to the Owner’s Parcel for recreational purposes, such as picnics, sporting activities and similar outdoor activities. The placing of picnic tables, chairs, sporting equipment, such as soccer goals, badminton nets, etc. is permitted on a temporary basis in conjunction with picnics or other similar gatherings. Temporary shall mean no longer than three (3) days. Any Owners or occupants using the Common Open Space in such manner shall be responsible to clean up the area and repair any damage that may be caused by such use.
4.5. Limitation on Common Open Space and Easements. All Common Open Space, easements and rights granted herein are subject to:
4.5.1. Restrictions set forth in this Declaration and any Supplemental Declaration.
4.5.2. Any rules and regulations adopted by the Association and the right to enforce such rules and regulations.
4.5.3. The right of the Association to levy assessments for the Common Expenses, and other assessments as set forth herein.
4.5.4. If access to any residence is through the Common Open Space, any conveyance or encumbrance of such area is subject to the Lot Owner’s easement.
4.5.5. All rights granted to the Association in this Declaration.
ARTICLE V SURFACE WATER MANAGEMENT
5.1. Surface Water Management System. The Surface Water Management System shall consist of the "Storm Easements" and “Stormwater Management Easement" as shown on the Record Plats and Condominium Drawings. The Association shall maintain and administer the Surface Water Management System in accordance with the guidelines as may be promulgated from time to time by West Chester Township, Butler County or the State of Ohio.
5.2. Surface Water Management System Easements. Each Parcel shall be subject to and shall be benefited by an easement for storm sewers, drainage and surface water management as more particularly shown on the Record Plats and Condominium Drawings. Such easement shall be non-exclusive as to the Owners and shall run to the Association, which has control and responsibility for drainage and surface water management. Such easement, however, shall not run to the public at large.
5.3. Access to Parcels. For the purpose solely of performing the maintenance required or authorized herein, the Association, through its duly authorized agents or employees, or subcontractors, shall have the right, after reasonable notice to the Owner, to enter upon the Parcel at reasonable hours on any day.
5.4. Individual Maintenance. Each Owner shall maintain that portion of the Surface Water Management System, which serves only that Owner's Parcel as provided in a Supplemental Declaration.
5.5. Retention Basin Maintenance. The Association shall have primary responsibility for the maintenance of the retention basins, including any pipes, concrete gutters or mechanical devices, including vegetation control and debris removal.
5.6. Restriction on Use. No Owner shall use or permit any other persons to use the Surface Water Management System in any manner which would constitute a nuisance, hazard or unsanitary condition or be in violation of any local, state, or federal law ordinance, rule, regulation or statue. No use of any retention basin including, without limitation, fishing, swimming, boating, playing, or use of personal flotation devices, shall be permitted. The Association shall not be responsible for any loss, damage, or injury to any person or property arising out of the authorized or unauthorized use of any retention basin.
ARTICLE VI
OWNERS ASSOCIATION
6.1. Formation. The Association is an Ohio nonprofit corporation named Beckett Ridge Association - I, Inc., Charter Number 486145, pursuant to the Articles of Incorporation filed with the Ohio Secretary of State on August 27, 1976. The purposes for the Association are twofold. Within the community of Beckett Ridge, the Association shall provide for the administrative governance, maintenance and upkeep of the Property and within the broader community of West Chester to promote the health, safety, and welfare for the Owners and Occupants of the Property.
6.2. Membership. The membership of the Association shall at all times consist exclusively of Owners of the Parcels. All such Owners shall be members. Membership shall be appurtenant to and may not be separated from such ownership.
6.3. Powers of the Association. The Association may:
6.3.1. adopt and amend a Code of Regulations for the government of the Association, the conduct of its affairs and the management of the Property;
6.3.2. adopt rules and regulations for the use and occupation of the Common Open Space and to enforce the rules and regulations and the provisions and restrictions of the Declaration as against the Owners and Occupants;
6.3.3. adopt, amend and promulgate design guidelines and architectural standards;
6.3.4. adopt and amend budgets for revenues, expenditures and reserves and levy and collect Assessments from Owners;
6.3.5. hire and discharge managing agents and other employees, agents and independent contractors;
6.3.6. institute, defend or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more Owners on matters affecting the community;
6.3.7. make contracts and incur liabilities;
6.3.8. regulate the use, maintenance, repair, replacement and modification of the Common Open Space for which the Association has maintenance responsibility and other rights as set forth herein;
6.3.9. cause additional improvements to be made as part of the Common Open Space;
6.3.10. acquire, hold, encumber and convey in its own name any right, title or interest to real estate or personal property;
6.3.11. grant easements, liens, licenses and concessions through or over the Common Open Space;
6.3.12. impose and receive any payments, fees or charges for the use, rental or operation of the Common Open Space and for services provided to Owners;
6.3.13. impose charges for late payments of Assessments and after notice and an opportunity to be heard, levy reasonable fines for violations of the Declarations, the Code of Regulations, and any rules and regulations of the Association;
6.3.14. impose reasonable charges for the preparation and recordation of amendments to the Declaration or for statements of unpaid Assessments;
6.3.15. provide for indemnification of its officers and Board of Directors and maintain directors' and officers' liability insurance;
6.3.16. assign its right to future income, including the right to receive Common Expense Assessments;
6.3.17. exercise any other powers conferred by the Declaration, Code of Regulations or Articles of Incorporation;
6.3.18. exercise all other powers that may be exercised in this state by nonprofit corporations;
6.3.19. exercise any other powers necessary and proper for the governance and operation of the Association.
6.4. Voting Rights. The Owners shall be entitled to vote on matters properly before them in accordance with this Article, the Code of Regulations and the laws of the State of Ohio.
6.5. Number of Votes. Each Parcel shall have one vote. If only one of several Owners for a Parcel is present at a meeting of the Association, that Owner is entitled to cast the vote allocated to that Parcel. If more than one of the Owners is present, the vote allocated to that Parcel may be cast only in accordance with the agreement of a majority in interest of the Owners. There is majority agreement if any one of the Owners casts the vote allocated to that Parcel without protest being made promptly to the person presiding over the meeting by any of the other Owners of the Parcel. The Association may adopt rules regarding deadlocks. No votes allocated to any Parcel owned by the Association may be cast.
6.6. Proxies. A vote allocated to a Parcel may be cast pursuant to a proxy duly executed by an Owner. If a Parcel is owned by more than one person, each Owner of the Parcel may vote or register protest to the casting of votes by the Owners of a Parcel through a duly executed proxy. An Owner may revoke a proxy given pursuant to this section only by actual notice of revocation to the person presiding over a meeting of the Association. A proxy is void if it is not dated or purports to be revocable without notice. Except as hereinafter provided, a proxy shall terminate one year after its date, unless it specifies a shorter time. If a first mortgagee has been designated a proxy under the terms of a first mortgage covering the Parcel, its presentation to the Board of a copy of the mortgage shall be notice of the proxy designation, and if the mortgage so states, of the irrevocability of that designation. Written notice to the Board or notice in a meeting of a revocation of a proxy designation shall not affect any vote or act previously taken. Each proxy shall automatically cease upon conveyance of the Parcel. Unless expressly reserved and the Association is notified of such reservation, a land contract vendee shall be deemed the proxy of a land contract vendor for purposes of this section.
6.7. Annual Meeting. A meeting of the Members of the Association must be held at least once each year.
6.8. Management Agent. The Board may employ for the Association a professional management agent or agents at a compensation established by the Board to perform such duties and services as the Board shall authorize. The Board may delegate to the managing agent or manager, subject to the Board's supervision, certain powers granted to the Board by this Declaration. No management contract may have a term in excess of three (3) years and must permit termination by either party without cause and without termination fee on ninety (90) days or less written notice.
ARTICLE VII
ASSESSMENTS
7.1. Establishment of Assessments. There are hereby established for the benefit of the Association and the Neighborhoods, their successors and assigns, as a charge on each Parcel, certain Assessments for Common Expenses, Neighborhood Expenses and other expenses. Each Owner, by acceptance of a deed, covenants and agrees to pay such Assessments.
7.2. Purpose of the Assessments. The Assessments are established for the benefit and use of the Association and the Neighborhoods and shall be used in covering the costs of the Common Expenses, Neighborhood Expenses and for other such purposes as hereinafter set forth.
7.3. Annual General Assessment. There is hereby established an Annual General Assessment levied against all Parcels for the purpose of the Common Expenses of the Association. The Common Expenses shall be, but not limited to, (1) operation, maintenance, repair and replacement as required by this Declaration; (2) the cost of any insurance required by this Declaration; (3) reasonable reserves for contingencies and replacement; and (4) administrative, accounting, legal and management fees; (5) all other costs and liabilities incurred by the Association in the exercise of its powers and duties pursuant to this Declaration.
7.4. Neighborhood Assessments. Certain Neighborhoods may have additional assessments levied against the Parcels in a Neighborhood for the purpose of the Neighborhood Expenses of the Neighborhood that are peculiar to that Neighborhood as set forth in a Supplemental Declaration.
7.5. Individual Assessment. Subject to the provisions of Section 7.6, the Association shall have the right to assess an individual Parcel for any of the following:
7.5.1. any costs incurred by the Association in the performance of any maintenance in accordance with Article VIII, Section 8.4.
7.5.2. any charges or fines imposed or levied in accordance with Article IX, Section 9.3.1.1.
7.5.3. any costs incurred for maintenance or repair caused through the willful or negligent act of an Owner or Occupant or their family, tenants, guests or invitees, including attorney fees, court costs and other expenses incurred.
7.5.4. any costs associated with the enforcement of this Declaration or the Rules and Regulations of the Association, including, but not limited to attorney’s fees, witness fees and costs, and court costs.
7.5.5. any costs or charges permitted by this Declaration, any Supplemental Declarations, amendments, or the Code of Regulations to be charged or assessed as an Individual Assessment.
7.6. Procedures for Imposing an Individual Assessment for Damages or Enforcement.
7.6.1. Notice. Prior to imposing a Individual Assessment, the Board shall give the Owner written notice containing:
7.6.1.1. a description of the property damaged, the required maintenance or the violation;
7.6.1.2. The amount of the Individual Assessment;
7.6.1.3. A statement that the owner has a right to a hearing before the Board to contest the Individual Assessment;
7.6.1.4. A statement setting forth the procedures to request a hearing pursuant to Section 7.6.2; and
7.6.1.5. A reasonable date by which the Owner must cure the violation to avoid the Individual Assessment.
7.6.2. Hearing. An Owner may request a hearing by delivering written notice of such request no later than the tenth day after receiving the notice provided in Section 7.6.1 of this Article. If the Owner fails to make a timely request for a hearing, the right to such hearing shall be considered waived, and the Board may immediately impose the Individual Assessment referenced in the notice provided above, or may allow a reasonable time to cure the violation before imposing a Individual Assessment. If an Owner requests a hearing, the Board shall not levy the Individual Assessment before holding a hearing, and will, at least seven days prior to the hearing; provide the Owner with a written notice of the date, time and location of the hearing. Within 30 days following a hearing at which the Board imposes an Individual Assessment, the Board shall deliver a written notice of the Individual Assessment to the Unit Owner.
7.6.3. Manner of Notice. Any notice required under this Section to be served:
7.6.3.1. upon the Owner shall be delivered personally to the Owner and Occupants at the Parcel or Dwelling Unit, or mailed (by certified mail, return receipt requested) to the Owner at the address of the Lot, provided that if the Owner has provided the Association with an alternate address, all such notices shall be mailed (by certified mail, return receipt requested) to the Owner at such alternative address.
7.6.3.2. upon the Association shall be delivered personally to any officer of the Association or to any on-site representative of any professional management company hired by the Association; or mailed (by certified mail, return receipt requested) to any officer of the Association or to the management company hired by the Association.
7.7. Special Assessment. There is hereby established a Special Assessment for the purpose of repairing or restoring damage or destruction to the Common Open Space as further set forth in Article X.
7.8. Computation and Payment of Annual General Assessment. The Annual General Assessment shall be computed and levied in accordance with the budget adopted by the Board pursuant to the Code of Regulations. This Assessment shall be effective as to each Parcel on the first day of the Association's fiscal year. So long as there has been no default in payment of the Assessment, it shall be payable in annual installments due on the first day of each fiscal year. The Board shall have the power from time to time to adopt such billing, collection and payment procedures, charges and other payment time schedules, as it deems appropriate.
7.9. Allocation of Assessments. The Common Expense Liability of each Parcel shall be its portion of the Common Expense. The Common Expense Liability and the Annual General Assessment shall be allocated equally to each Parcel. The other Assessments shall be allocated as applicable to the respective Parcels and as determined by the Board.
7.10. Petition to Consolidate Parcels. Any Owner of more than one Parcel may petition the Board to consolidate the Common Expense Liability for such Parcels if the Parcels are improved by one Dwelling Unit and the Parcels constitute one residential parcel for all practical purposes.
7.11. Lien for Assessments. The Association shall have a lien for any Assessment levied against a Parcel, for fines imposed against an Owner or Occupant, and for interest, costs and reasonable attorney fees.
7.11.1. Creation. The lien for Assessments is created by this Declaration and shall be a charge and a continuing lien on each Parcel, which shall run with the land. All persons or entities acquiring an interest in a Parcel after the filing of this Declaration take such interest subject to the lien.
7.11.2. Effective Dates. The lien for the Common Expense Liability for each Parcel as set forth in the Annual General Assessment shall be effective on the first day of the fiscal year of the Association. The lien for other Assessments shall be effective on the first day of the month following the notice of it levy on the Owners affected.
7.11.3. Perfection. Recording of this Declaration constitutes notice and perfection of the Lien.
7.11.4. Notice of Lien. The Association may file a notice of lien with the Recorder of Butler County. Such notice shall not be required for any Association enforce its lien.
7.11.5. Priority of the Lien. The lien created by this Section shall be prior to all liens and encumbrances recorded subsequent to this Declaration except the lien for real estate taxes and assessments and the lien of any bona fide first mortgage filed of record.
7.11.6. Subordination and Mortgagee Protection. Notwithstanding any of the provisions hereof to the contrary, the lien of any Assessment levied pursuant to this Declaration (and any late charges, interest, costs and attorney fees) shall be subordinate to, and shall in no way affect the rights of the holder of a first mortgage made in good faith for value received; provided, however, that such subordination shall apply only to Assessments, or installments thereof, which have become due and payable prior to the date of Sheriff's sale of such Parcel pursuant to a foreclosure or the date of a deed in lieu of foreclosure. Such sale or transfer shall not relieve the mortgagee or the purchaser of a Parcel at such sale from liability for any Assessments thereafter becoming due, or from the lien of any such subsequent Assessment. Mortgagees are not required to collect Assessments on behalf of the Association. Failure to pay Assessments shall not constitute a default under any mortgage insured by FHA/VA.
7.11.7. Extinguishment of the Lien. A lien for unpaid Assessments is extinguished unless proceedings to enforce it are instituted within five (5) years after the full amount of the Assessment becomes due. If an Owner of a Parcel subject to a lien files a petition for relief under the United States Bankruptcy Code, then the period of time to enforce the Association's lien shall be tolled until thirty (30) days after the automatic stay under Section 362 of the Bankruptcy Code is lifted.
7.11.8. Estoppel Certificate. Upon request of any mortgagee or Owner and upon payment in full of all Assessments and other charges permitted by this Declaration that are due to the Association, the Association shall execute and deliver to such mortgagee or Owner an Estoppel Certificate. Such certificate shall be in recordable form and shall note the payment of the outstanding Assessments and charges and that the Association is estopped from the enforcement of its lien with respect to Assessment and charges becoming due and payable prior to the date of the Certificate. The Association may charge a reasonable fee for the preparation of such certificate.
7.12. Delinquency and Acceleration. Any installment of an Assessment provided for by this Declaration shall become delinquent if not paid on the due date as established by this Declaration or by the Board. With respect to each installment of an Assessment not paid within five (5) days of its due date, the Board may, at its election, require the Owner to pay a reasonable late charge, costs of collection, reasonable attorney fees and interest at the rate provided in Section 1343.03 of the Ohio Revised Code (and as amended from time to time). Interest shall be calculated from the date of delinquency to the date full payment is received by the Association. If any installment of an Assessment is not paid within thirty (30) days of its due date, the Board may, at its election, declare all of the unpaid balance of the Assessment immediately due and payable without further notice or demand to the Owner. The Association may enforce the collection of the full Assessment and all charges thereon in any manner authorized by law or this Declaration. The filing of any petition for relief pursuant to the United States Bankruptcy Code by an Owner who’s Assessment has been accelerated shall operate as a restoration of the Assessment to its prior status as if it has not been accelerated.
7.13. Remedies Cumulative. A suit to recover money judgment for unpaid Assessments and charges may be maintained without foreclosing or waiving the right to enforce the lien. A foreclosure may be maintained notwithstanding the pendency of any suit to recover a money judgment.
7.14. Personal Obligation. The Assessments, including fines, if any, payable by each Owner, together with any penalty, interest, costs and reasonable attorney fees shall be the personal obligation of the Owner of the Parcel at the time incurred. The personal obligation shall not pass to any successors in title unless expressly assumed by them.
7.15. Statement of Unpaid Assessments. The Association shall upon written request of the Owner, contract purchaser, or first mortgagee, furnish a statement setting forth the amount of unpaid Assessments against the Parcel. This statement must be furnished within ten (10) business days after receipt of the request and is binding on the Association, the Board and every Owner. The Association may charge a reasonable amount for this statement.
7.16. No Waiver of Liability for Common Expenses. No Owner may exempt himself or herself from liability for payment of the Common Expenses by waiver of the use or enjoyment of the Common Open Space or by abandonment of the Parcel against which the Assessments are made.
ARTICLE VIII
UPKEEP OF THE PROPERTY
8.1. Parcels. Each and every Parcel, its Dwelling Unit and any improvement erected thereon shall be maintained in a reasonable manner in accordance with the standard generally prevailing throughout the Neighborhood and as may be set forth in a Supplemental Declaration.
8.2. Common Open Space. Except as may be expressly provided in any Supplemental Declaration, easement or contract, the Association shall maintain the Common Open Space.
8.3. Supplemental Declaration. Additional maintenance responsibilities may be set forth in a Record Plat, Condominium Drawings or a Supplemental Declaration applicable to a Neighborhood.
8.4. Association's Right to Maintain. In the event that an Owner shall fail to provide maintenance as required by this Declaration in a manner satisfactory to the Association, and such Owner has failed to comply for ten (10) days after being so notified of such failure and upon being provided an opportunity to be heard concerning such failure, then the Association shall have the right, but not the responsibility, through its agents and employees, to enter upon said Parcel and repair, maintain and restore the Parcel. In the event that such failure poses a health, safety or security risk, then no notice or hearing need be given. The cost of such maintenance and repair shall be assessed against the subject Parcel in accordance with Article VII, Section
8.5.Access to Parcels. For the purpose solely of performing the maintenance required or authorized herein, the Association, through its duly authorized agents or employees, or subcontractors, shall have the right, after reasonable notice to the Owner, to enter upon any Parcel at reasonable hours on any day.
ARTICLE IX
RESTRICTIONS
9.1. Use and Occupancy. Except as may be set forth in a Condominium Declaration or a Supplemental Declaration, the following restrictions are applicable all Parcels with respect to the use and occupancy of the Property.
9.1.1. Compliance with Laws. No improper, offensive or unlawful use shall be made of the Property or any part thereof, and all valid laws, zoning ordinances and regulations of all governmental agencies having jurisdiction thereof shall be observed. All laws, orders, rules, regulations or requirements of any governmental agency having jurisdiction thereof relating to any portion of the Property shall be complied with, by and at the sole expense of the Owner.
9.1.2. Nuisance. No obnoxious or offensive activity of any kind shall be permitted in or on Parcel, nor shall any Owner or Occupant thereof engage in any activities that interfere with the quiet enjoyment, comfort and health of the Occupants of adjacent or neighboring Parcels..
9.1.3. Prohibited Activities. No trade or business of any kind may be conducted in or from any Parcel or Dwelling Unit except that an Owner or Occupant of a Parcel or Dwelling Unit may conduct such business activity within the Parcel or Dwelling Unit so long as: (a) the existence or operation of the business activity is not apparent or detectable by sight, sound or smell from the exterior of the Parcel or Dwelling Unit; (b) the business activity conforms to all zoning requirements for the Property; (c) the business activity does not involve persons coming on to the Parcel who do not reside in the Property; and (d) the business activity is consistent with the residential character of the Property. The terms "business" and "trade" as used in this provision shall be construed to have their ordinary generally accepted meanings and shall include, without limitation, any occupation, work or activity undertaken on an ongoing basis which involves the provision of goods or services to persons other than the provider's family and for which the provider receives a fee, compensation or other form of consideration, regardless of whether (i) such activity is engaged in full-time or part-time; (ii) such activity is intended to or does generate a profit; or (iii) a license is required thereof. No signs of any character shall be erected, posted or displayed upon the Property, except: (i) street and identification signs installed by the Association or West Chester Township; (ii) temporary signs and security signs as set forth in the Supplemental Architectural Restrictions; (iii) reasonably sized political signs installed in accordance with the time frames and size limits set forth in the Supplemental Architectural Restrictions; and (iv) one temporary real estate sign not to exceed six square feet in area advertising that such Parcel is for sale.
9.1.4. Parking; Vehicle Repairs. The Board shall have the right to adopt Rules and Regulations with respect to parking and vehicle repairs on the Property.
9.1.5. Animals. Except as hereinafter provided, the maintenance, keeping, boarding or raising of animals of any kind, regardless of number, is prohibited on any Parcel. The keeping of guide animals and orderly domestic pets (e.g., dogs, cats or caged birds), may be permitted, subject to the Rules and Regulations adopted by the Board from time to time. Such Rules and Regulations may include, without limitation, the right to prohibit pets entirely, the right to place limitations on the size, number and type of such pets, the right to identify actions or behaviors that may be regulated or restricted and the right to determine and assess penalties for violations. No pets may be kept or maintained for commercial purposes or for breeding. No external compound cages, kennels, doghouses or hutches shall be permitted. Owners and / or Occupants shall promptly remove and properly dispose of all pet droppings on any Parcel or in the Common Open Space. Pets shall not be permitted on the Common Open Space unless accompanied by someone who can control the pet and unless carried or leashed. Any Owner or Occupant who keeps or maintains any pet on any portion of the Property shall be deemed to have indemnified and agreed to hold the Association harmless from any loss, claim or liability of any kind or character whatever arising by reason of keeping or maintaining such pet within the Property. All pets which may leave the Dwelling Unit or Parcel must be inoculated as required by law. With respect to any pet causing or creating a nuisance, threatening circumstances, unreasonable disturbance or noise, unsanitary conditions or unsafe conditions, the Board, in addition to the remedies set forth in Section 9.3, upon ten (10) days written notice may order that the pet be permanently removed from the Property. .
9.1.6. Additional Restrictions. Additional restrictions that are applicable to the individual Neighborhoods are set forth in Supplemental Declarations for such Neighborhoods.
9.2. Architectural Restrictions. Except as may be set forth in a Condominium Declaration or a Supplemental Declaration, the following restrictions are applicable all Parcels with respect to the use and occupancy of the Property. Other restrictions applicable to each Neighborhood shall be set forth in a Supplemental Declaration.
9.2.1. Plan Approval. No structure shall be placed, erected or installed upon any Parcel, no construction, and no exterior alteration or modification of existing improvements shall take place until the requirements of this section have been fully met. Prior to any construction, the Owner or Builder shall first submit to the Association an application for the proposed construction. The Association shall review the application as to the quality of workmanship and design and harmony of external structures with existing structures and as to location in relation to surrounding structures, topography and finish grade elevation.
9.2.2. Supplemental Architectural Restrictions. The Association, on behalf of itself, shall prepare and promulgate design and development guidelines governing construction within the Property ("Supplemental Architectural Restrictions"). The Supplemental Architectural Restrictions shall include application and review procedures to be followed in submitting an application for approval hereunder. The Supplemental Architectural Restrictions shall be those of the Association, and the Association shall have sole and full authority to modify and to amend them from time to time without the vote of the Owners. The Association shall make the Supplemental Architectural Restrictions available to builders and Owners who seek to engage in construction or improvement upon any portion of the Property. There is no requirement that the Supplemental Architectural Restrictions be recorded or rerecorded if amended or modified. Each builder and Owner is cautioned to request the most current version of the Supplemental Architectural Restrictions prior to undertaking any improvement.
9.2.3. No Liability. Each Owner is responsible to insure that all construction or any modifications are in compliance with the Supplemental Architectural Restrictions, restrictions and approved plans. If the Association, any agent or committee have acted in good faith on the basis of such information possessed by them, neither the Board nor any Director shall be liable to the Association or to any Owner for any damage, loss or prejudice suffered or claimed due to: (a) the approval or disapproval of any plans, drawings and specifications, whether or not defective; or (b) the construction or performance of any work whether or not pursuant to approved plans, drawings, and specifications.
9.2.4. Set Back, Minimum Elevation and Yard Requirements. All Dwelling Units shall be located in accordance with the building set back lines, minimum basement elevation and yard requirements as shown on the Record Plats and / or as set forth in the West Chester Township Zoning Resolution. The Owner shall be responsible for compliance with these standards. Association shall not be responsible for any failure to comply with these standards.
9.2.5. Construction Materials. No Dwelling Units shall be constructed of concrete block, cinder block or other similar materials unless the exterior of the Dwelling Unit is covered with brick and / or siding. No underground Dwelling Units shall be permitted.
9.2.6. Temporary Structures. All temporary structures must comply with the Supplemental Architectural Restrictions.
9.2.7. Foundations. Any concrete foundation exposed more than two (2) feet along the front elevation only, shall be covered, along the front elevation only, with brick, wood, stone, siding or other compatible exterior finish material.
9.2.8. Fencing, Swingsets And Swimming Pools. No fences or other lot dividers, swing sets, or swimming pools may be erected or installed on any portion of the Property unless in accordance with the Supplemental Architectural Restrictions and the Owner has first obtained the written approval as set forth above.
9.2.9. Radio and Television Antennas. No exterior antennas, aerials, satellite dishes, or other apparatus for the reception or transmission of television, radio, satellite or other signals of any kind shall be placed, allowed, or maintained upon any portion of the Property, including any Dwelling Unit, without the prior written approval as provided in Section 9.2.1, and in accordance with the Supplemental Architectural Restrictions Nothing herein shall be construed so as to be in conflict with current Federal Communications Commission’s rules and regulations for antennas.
9.2.10. Storage, Outbuildings and Other Personal Property. No flagpoles, additions, alterations, outbuildings or similar structures, nor shall anything be stored on any portion of the Property, except in accordance with the Supplemental Architectural Restrictions and prior approval, if required.
9.3. Remedies for Breach of Covenants and Restrictions. The violation of any covenant or restriction contained in the Declaration or violation of any rule or regulation duly adopted by the Board shall give the Board the authority to enforce the covenants, restrictions, rules and regulations in accordance with this Section.
9.3.1. Actions. The Board may take any or all of the following actions.
9.3.1.1. levy a fine against the Owner and/or Occupant, which shall also be an Individual Assessment under Section 7.5.
9.3.1.2. to enter upon a Parcel or portion thereof upon which or, as to which, such violation or breach exists and to summarily abate and remove at the expense of the Owner, any structure, thing or condition that may exist thereon contrary to the intent and meaning of the provisions of this Declaration, and the Board, or its agents shall not be thereby deemed guilty in any manner of trespass or wrongful act.
9.3.1.3. to institute appropriate legal proceedings to enjoin, abate or remedy the continuance of any breach.
9.3.1.4. undertake such dispute resolution methods such as mediation and arbitration, except that this provision shall not be construed as any requirement to do so as a condition precedent to legal proceedings.
9.3.2. Notice and Opportunity to be Heard. Prior to any action, the Board shall give the Owner and/or Occupant reasonable notice of the violation and an opportunity to be heard. Such notice and opportunity shall not be required in emergency situations or for repeated or continuing violations.
9.3.3. Individual Actions. Each Owner is empowered to enforce the covenants by appropriate legal proceedings or alternative dispute resolution methods.
ARTICLE X
INSURANCE AND CASUALTY LOSSES
10.1. Insurance. The Board or its duly authorized agent shall have the authority to and shall obtain such insurance as it may deem necessary to protect the Common Open Space, the Owners, the Association and the Board.
10.2. Repair and Restoration. If the damage or destruction for which the insurance proceeds are paid is to be repaired or reconstructed and such proceeds are not sufficient to defray the cost thereof, the Board shall, without the necessity of a vote of the Owners, levy a Special Assessment against all Parcels. Additional assessments may be made in like manner at any time during or following the completion of any repair or reconstruction. If the funds available from insurance exceed the cost of repair, such excess shall be deposited to the benefit of the Association.
10.3. Additional Insurance Provisions. The Board, without a vote of the Owners, may amend the provisions of this Article or any supplemental provisions set forth in a Supplemental Declaration, if such amendment is necessary to comply with secondary mortgage market guidelines or is necessary or desirable to meet the requirements of any institutional lender, the Veteran's Administration, the Federal Housing Administration, the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, or any other agency which may insure or purchase loans on a Parcel.
ARTICLE XI
CONDEMNATION
11.1. Whenever all or any part of the Common Open Space shall be taken (or conveyed in lieu of and under threat of condemnation by the Board) by any authority having the power of condemnation or eminent domain, each Owner shall be entitled to notice thereof. No Owner, however, shall have the right to participate in the proceedings incident thereto, unless otherwise required by law. The award made for such taking shall be payable to the Association, as trustee for all Owners, to be disbursed as follows:
11.1.1. If the taking involves a portion of the Common Open Space on which improvements have been constructed, then, unless within sixty (60) days after such taking the Declarant and at least seventy-five (75%) percent of the Owners shall otherwise agree, the Association shall restore or replace such improvements so taken on the remaining land included in the Common Open Space, to be extent lands are available therefore, in accordance with plans approved by the Board. If such improvements are to be repaired or restored, the above provisions in Article X hereof regarding the disbursement of funds in respect to casualty damage or destruction, which is to be repaired, shall apply.
11.1.2. If the taking does not involve any improvements on the Common Open Space, or if there is a decision made not to repair or restore, or if there are net funds remaining after any such restoration or replacement is completed, then such award or net funds shall be disbursed to the Association and used for such purposes as the Board shall determine.
ARTICLE XII
DURATION, AMENDMENT AND TERMINATION
12.1. Duration. This Declaration, and its provisions, shall be covenants running with the land and shall bind the property and shall (regardless of whether any such beneficiary owns an interest in any Parcel) inure to the benefit of and be enforceable by the Association and the Neighborhoods, and each Owner, Occupant and their legal representatives, heirs, devisees, successors and assigns and shall continue in full force and effect for twenty (20) years from the date on which this Declaration is recorded. Thereafter this Declaration shall be automatically renewed for successive ten-year periods unless amended or terminated as provided in this Article.
12.2. Amendments by Owners. This Declaration and any Supplemental Declaration may from time to time be amended in accordance with following provisions and pursuant to procedures adopted by the Board or set forth in the Code of Regulations.
12.2.1. Any provision of this Declaration may be amended in whole or in part by a recorded instrument approved by the Owners of at least 75% of all Parcels.
12.2.2. Any provision of any Supplemental Declaration may be amended in whole or in part by a recorded instrument approved by the Owners of at least seventy-five (75%) percent of all Parcels subject to such Supplemental Declaration.
12.2.3. All amendments shall be executed by the President and Secretary of the Association. Such amendment shall certify that the proper notices were sent and that the requisite vote was obtained. Amendments need not be signed by the Owners.
12.3. Neighborhood Amendments. Any provision of this Declaration and or any Supplemental Declaration may be amended in whole or in part by a recorded instrument approved by the Owners of at least seventy-five (75%) percent of all Parcels within any Neighborhood.
12.3.1. Such amendments shall be limited to: 12.3.1.1. the establishment or termination of a Neighborhood Assessment; or
12.3.1.2. the establishment or imposition of a covenant or restriction not provided for in this Declaration or any Supplemental Declaration; or
12.3.1.3. the imposition of a more restrictive covenant than provided for in this Declaration or any Supplemental Declaration.
12.3.2. No amendment shall operate to diminish the effect of any term, condition, covenant or restriction provided in this Declaration or any Supplemental Declaration.
12.3.3. No amendment shall impose a restriction or covenant that is less restrictive than provided for in this Declaration or any Supplemental Declaration.
12.3.4. Such amendments shall be applicable to all Parcels within the Neighborhood.
12.4. Amendments by Board. The Board may amend the Declaration and any Supplemental Declaration in any manner necessary for any of the following:
12.4.1. To meet the requirements of institutional mortgagees, guarantors and insurers of first mortgage loans, the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, the Federal Housing Administration, the Veterans Administration, and similar institutions;
12.4.2. To meet the requirements of insurance underwriters;
12.4.3. To bring the Declaration or any Supplemental Declaration into compliance with the laws of the United States, the State of Ohio or any political subdivision thereof; or
12.4.4. To correct clerical or typographical errors or obvious factual errors in the Declaration, Supplemental Declaration or an exhibit to the same.
12.5. Termination. This Declaration and the regime created thereby may be terminated only in accordance with this Section.
12.5.1. Consent Required. This Declaration may be terminated only upon consent of Ninety (90%) Percent of the Owners and the consent of West Chester Township.
12.5.2. Agreement to Terminate. No termination shall be effective unless an agreement to terminate is filed for record with the Butler County Recorder. This agreement shall be executed in the same manner as an amendment. The agreement shall provide for disposition of the Common Open Space, disposition of Association funds and other resolutions and provisions necessary to terminate the regime and wind up the affairs of the Association.
ARTICLE XIII MISCELLANEOUS
13.1. No Reverter. No covenant, condition, restriction or reservation of easement contained in this Declaration or any Supplemental Declaration is intended to create, or shall be construed as creating, a condition subsequent or a possibility of reverter.
13.2. Notices. Any notice required or permitted to be given to an Owner, Occupant or by the Board pursuant to the provisions of this Declaration shall be deemed given when sent in accordance with the provisions of the Code of Regulations.
13.3. Construction. The Board shall have the right to construe the provisions of this Declaration and any Supplemental Declaration, and, in the absence of an adjudication by a court of competent jurisdiction to the contrary, such construction shall be final and binding as to all persons and entities benefited or bound by the provisions of this Declaration or any Supplemental Declaration.
13.4. Invalidity. The determination by a court of competent jurisdiction that any provision of this Declaration any Supplemental Declaration is invalid for any reason shall not affect the validity of any other provision therein.
13.5. Headings. The headings of the Articles and Sections are for conveyance only and shall not affect the meaning or construction of the contents of this Declaration.
13.6. Gender. Throughout this Declaration any Supplemental Declaration, the masculine gender shall be deemed to include the feminine and neuter, and the singular, the plural and vice versa.
13.7. Conflict. In the event of a conflict between the restrictions or any one or more of them and the restrictions of any Declaration any Supplemental Declaration which may be recorded subsequent to this Declaration any Supplemental Declaration, the more restrictive restriction, covenant, condition, easement or other obligation shall control.