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DECLARATION
OF COVENANTS AND RESTRICTIONS,
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THIS DECLARATION, made on the date hereinafter set forth -by
Eastwood Commons Building Corp., hereinafter referred to as
"Declarant."'
WITNESSETHt
WHEREAS, Declarant is the owner, of certain property in. the
Town of Ithaca, County of Tompkins, State of New York, which is
more particularly described as:
ALL THAT TRACT OR PARCEL OF LAND situate in the Town of
Ithaca, Tompkins County, New York, being a part of the Eastwood
Commons Phase III Sunnyhill Subdivision, and known as Plots 30
and 31, according to a map made by John S. MacNeill, Jr., P.C.
a" and R. James Stockwin, Y.L.S., dated September 14, 1987 and most
recently revised March 2, 1988 and filed in the Tompkins County
Clerk's Office on March 10, 1988, in Vault Box XII, Slot 100, and
being more particularly described as follows:
Commencing at a point in the westerly line of Sunnyhill
'r Lane, which point of beginning' is located North 44 degrees
04 minutes 40 seconds West 93.30 feet from the intersection
of the westerly lite"e of Sunnyhill Lane and the Mast line of
Barwick Road; thence South 07 degrees 19 minutes 04 seconds
West a distance of 84.28 feet to a point; thence North 33
degrees 31 minutes 21 seconds hest a distance of 280.03 feat
to a found iron pipe; thence North 07 degrees 19 minutes 04
seconds East a distance of 185 feet to a point; thence South'
82 degrees 40 minutes 56 seconds East a distance of 159.00
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distance of 154.83.foot to the point or place of beginning.
NOW THEREFORE, Declarant hereby declares that all of the
proportlet described above shall be held, sold and conveyed
subject to the following easements, restrictions, covenants, and
conditions, which are for the purpose of protecting the value and
desirability of, and which shall run with, the real property and
be binding on all parties having any right, title or Interest in
the described properties or any part thereof, their heirs,
successors and assigns, and shall Inure to the benefit of each
owner thereof.
ARTICLE I
DEFINITIONS
Section 1. "As.soclatlon" or "Sunnybill Association" shall
*,son and refer to Eastwood Commons Sunnybill Homeowners
Association, Inc., Its successors and assigns.*.
Section 2. "Owner" shall mean and refer to the record owner,
whether one or more persons or entities, of a fee simple title to
any Lot which Is a - part of the Properties, including contract
sellers, but excluding those having such Interest merely as
secur
ity for the performance of an obligation.
Section 3. "Properties* shall mean and refer to that certain
real property herainabove described, and such additions thereto
as may hereafter be brought within the jurisdiction of the
Association.
Section 4. "Common Area* shall seen all real property and
improvements thereon owned by the Association for the common use
and enjoyment of the owners. The Common Area to be owned by the
:"#.Association at the time of conveyance of the first lot Is
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LIFER P11anot
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this Declaration sad the facilities thereon including .the
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driveways, common parking areas, patios, entry courtyards,
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pedestrian paths, play areas, recrestional'facilitios and related
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equipment, but excluding the individual lots (as defined by
Section 5 below) and single family residential units and garages
thereon and public rights of way as shown on the subdivision map
to be filed with the Tompkins County Clerk and also excluding the
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equipment installed within the Common Area belonging to the
public utility companies or other service contractors. If and
when a'pavilion is conveyed to the Association, the pavilion
shall become part of the Common.Area.
Section S. "Lot" shall mean and refer to any plot of land
together with its garage area or its specified .parking area as
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shown upon any recorded subdivision map of the Properties with
the exception of the Common Area, pavilion and land underlying
it, public roads, and rights of way. Such plot of land together
with its garage area or its specified parking area (if any) shall
constitute one lot.
Section 6. "Declarant" shall mesa and refer to Eastwood
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Commons -Building Corp. Declarant shall also mean its successors
and/or assigns if such successors or assigns should acquire more
than one undeveloped Lot from" the Declarant for the purpose of
development.
Section 7. "Member" shall mean and refer to every person or
entity who holds membership in the Association.
Section S. "Class I Lots" shall mean and refer to any lot
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upon which a single fawily residential unit has been completed
and has either been conveyed to an owner other than the Declarant-,:.
or, prior to sueb conveyance, has been occupied.
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upon which' a single family residence unit has not been completed
or, if completed, has not been either conveyed to an owner other
then Declarant or, prior to such conveyance, has not been
occupied.
ARTICLE II
PROPERTY RIGETS
Section 1. Owners' Easements -of EnioYment. Every owner shall have
a right and easement of enjoyment through the Association in and
to the Common Area which shall be appurtenant to andshall pass
with the title to every Lot, subject to the following provisions:
(a) the right of the Association to charge reasonable
admission and other fees for the use of any recreational
facility, or other common facility situated upon the Common Area;
(b) the right of the Association to suspend the right to use
of the recreational facilities by an owner for any period during
which any assessment remains unpaid; and for a period not to
exceed 60 days for any, infraction of its published rules and
regulations;
(c) the right of the Association to dedicate or transfer all
or any part of the Common Area to any public agency, authority,
or utility for such purposes and subject to such conditions as
may be agreed to by the members. No such dedication or transfer
shall be effective unless on instrument signed by two-thirds
(2/3) of each class of members agreeing to such dedication or.
transfer has been recorded.
K. (d) the right of the Association to limit or otherwise
regulate the number of guests using the Common Areas;
(a) the right of the Association, in accordance with its
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If
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loll Litt 1103
Articles
and By -Laws, to borrow money for
the purpose of
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improving
the Common Area and facilities and in
aid thereof the
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mortgage
on said properties shall be subordinate
to the rights of
the homeowners
hereunder.
Section
2. Delegation of Use. Any owner may delegate, in
accordance
with the By -Laws, his right of enjoyment
to the Common
Area and
facilities to the members of his family,
his tenants, or
contract
purchasers who reside on the property.
Section 3. Regulation of Uses. The Association reserves the right
to regulate the use of the recreational facilities and common
area through the establishment of rules and regulations.
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Section 4. Pavilion. The Sponsor has the right (but ,not the
obligation) to build a pavilion or any of the three phases of the
pavilion. Initially the Association will not own the pavilion and
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it may never be deeded to the Association. The Sponsor say, at
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its option, lease to the Association the pavilion (or any phase)
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(use to be shared with Sponsor) with the Association to pay. the
Sponsor the following monthly rent: lease of Phase I (use to be
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shared with Sponsor) - $15.00 for each unit sold up to 20 units,
plus the Consumer Price Index adjustment from September 1, 1988
on such sum, i.e. maximum monthly rant of $3,600.00 plus C.P.I.=
lease of Phases I and II (use to be shared with Sponsor) - $15.00
for each unit sold up to 40 units, plus the Consumer Price Index
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adjustment from September 10 1988 on such sus= lease.of Phases I,
II and III (use to be shared with Sponsor) - $15.00 for each unit
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sold up to 60 units, plus the Consumer Price Index adjustment
from September 1, 1988 on such sum. If the pavilion (or -any.
Phase) is leased to the Association the Sponsor shall pay all the
costs of ownership and maintenance of such and the Association
shall not have privileges of ownership. The lease torso shall be.
substantially as set forth in the terms of Sponsor's option to
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decides to. deed the pavilion (or any Phases built) to the
Association, it :hail be deeded free and clear and at no purchase
price to the Association, and upon such conveyance to the F
Association the Association shall receive all the rights and
responsibilities of ownership. If the pavilion (or one or more of
the three Phases of the pavilion) is built and either leased or
conveyed to the Association, the base rate for assessments may bed
increased up to ten percent by the Board of Directors without a
vote of the membership. Each owner shall have the right to use
the pavilion, if any, or part thereof, if offered upon the terms
set forth by Declarant until such time as the pavilion may be ;.
�,. conveyed to the Association and becomes part of the Common Area.
If and when the pavilion becomes part of the Common Area the
Association shall have the right to make the use of the pavilion
available to the members of Eastwood Commons Sunnyhill Homeowners
Association, Inc. on such terms as the Board of Directors of the
Association shall determine.
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Section S. Maintenance and Use of Garages. Each garage owner
covenants for himself, bit heirs, successors and assigns, as
follows:
(1) That the garage shall be used solely for the parking of
an operable automobile and for storage of household items,
including, but not limited to, bicycles, baby carriages, covered
trash containers, personal effects, refrigerator, freezer,
compactor, and other household appliances; (2) The Garage shall
not be used, or items kept herein, so as to interfere with the
use thereof for the parking of an automobile or so as. to
constitute a nuisancet or otherwise so as to constitute a health,
safety or other hazard to, or interfere with, the ownership, use,
possession or enjoyment of the structure of which it is a part or
of the adjoining residences; (3) The Garage shall be maintained
In -a clean and orderly condition and without limitation, no
ex9osed or uncontained junk, trash, garbage or other refuse shall
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bottled gas or other flammable, explosive, corrosive or poisonous
substances shall be stored therein, or any item whatsoever which
might cause an increase in risk under, or increase the premiums
charged for, any policies of fire or hazard insurance covering
the Garage, the structure of which it is a part, or the adjoining
residences; (4) Without limitation, no mechanical work @ball be
performed on any vehicle, and no machines, tools or equipment
shall be used, or other activity performed, in the Garage which
might create noxious or explosive fumes, cause noise, or
otherwise disturb, or jeopardize the safety of, any persons`
occupying the structure of which the Garage is a part or adjacent
structures, and no automobile or other engines shall be operated
therein except to move a vehicle in or out thereof; and (5) no
use will be made of the Garage which shall conflict with the
rules and regulations in respect thereof which shall be
promulgated from time to time by the Association.
Each garage owner further covenants for himself, his heirs,
successors and assigns that be will: (i) at his sole expense,
i maintain in a good, safe and sound condition and repair all doors
and doorways leading into the Garage (including jambs, frames,
i trim and hardware), all interior surfaces of the walls, ceiling
and floor of the Garage, and all light fixtures, electrical
outlets and other fixtures serving the Garage; (11) with the
person(@) owning any adjoining Garages, maintain in good, sound
and safe condition and repair any interior partition wall between
such Garages, the costs thereof to be shared equally with such
person(*); (III) where structural restoration or repair of the
garage or its foundation is necessary, facilitate such
restoration or repair by the Association and to pay his
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proportionate share of the cost of same to the extent such cost i
is not reimbursed by insurance. The share of such costs shall be
apportioned among the owners in accordance with the number of
garage bays owned by each owner. The Association shall undertake
such structural restoration or repair as shall be necessary from
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time
to time, receiving the proportionate abate of the reasonable
cost
attributable to such
structural repairs of the from
garages
each
garage owner to the
extent such cost is not reimbursed by
Insurance.
That portion of
such restoration cost attributable to
..
the
garage owner shall be
borne solely by such garage owner to
the
extent such cost is
not reimbursed by insurance. If the
expenses not covered by insurance are not paid within (10) days
after written request by the Association such expenses shall
become a lien upon the defaulting party's residence, which the
Association may enforce as provided in Article IV, Section 10 of
this Declaration of Convenants and Restrictions. In the event a
dispute arises as to the amount of restoration or repair costs
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attributable to anyparticular garage or garages, such dispute
shall be promptly submitted to and determined b arbitration lion in
the same manner as a dispute arising concerning a party wall as
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specified in Article VI, Section 6; (iv) permit the Association,
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its officers, directors, agents or representatives, to enter into
the garage for any reasonable purpose, including the inspection,
maintenance or repair of such structure; (v) authorise such
persons) listed in (iv) above, in the event the garage owner
shall have failed to'do so within ten (10) days after any written
request by the Association, to commence to do or perform any
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repair or maintenance work for which the garage owner is liable
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hereunder at such garage owners expense. This
p is expanse shall
-- become a lien upon the defaulting owner's lot, which the
Association may enforce as provided in Article IV, Section 10 of
this Declaration of Covenants and Restrictions. The garage owner
shall remove from the garage, promptly at the request of the
Association, any items therein kept in violation of these
covenants or which interfere with any inspection, or maintenance
or repair work, by the Association.
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Section 2. The .Association shall have two classes of voting,
membership:
Class -A. Class A members shall be all Owners of Lots within the
Property. Each Class A member shall be 'antitled to one
vote. When more than one person holds an interest in any
Lot, all such persons shall be members. The vote for ;
such Lot shall be exercised as the owners among
themselves determine, but in no event shall sore than
one vote be cast with respect to any Lot. Any and all
actions requiring a vote or approval by the members or
by the Class A members shall be approved separately by
Class A members and by Class B members.
Class B. The sole Class B member shall be the sponsor. The
Class B Membership shall cease and be converted to Class
A membership on the happening of either of the following -
events, whichever occurs earlier:
(a) when the forty-fifth residential unit is sold, or
(b) eight (8) years'after date of transfer of title to
the first single family residential unit.
ARTICLE.IV
COVENANT FOR MAINTENANCE, SPECIAL
AND PROPERTY TAX ASSESSMENTS
Section 1. Creation of the Lien and Personal Obligation of
Assessments. The Declarant, for each Lot owned within the
Properties,. hereby covenants, and each owner of any Lot by
acceptance of a deed therefor, whether or not it shall be to
expressed in such deed, is deemed to covenant and agree to pay to
the Association: (1) annual maintenance assessment or charges,
(2) special assessments for capital improvements, and (3)
property tax assessments for real property taxes on the common
areas and facilities (unless such taxes are included in the
Individual residence tax assessments by the assessing authority).
Such assessments shall be established and collected as
hereinafter provided. The annual maintenance, special and
property tax (Common Area) assessment together with interest,
costs, and reasonable attorney's fees shall be a charge on the
land and shall be a continuing lien upon the property against
which each such assessment is made. Each such assessment,
together with interest, costs, and reasonable attorney's fees,
shall be the personal obligation of the person who was the Owner
of such property at the time when the assessment fell due. The
Personal obligation for delinquent assessments shall not pass to
his successors in title unless expressly assumed by them. Each
deed shall contain the following covenants
"And the party of the second part (bit, bar, their)
heirs, grantees and assigns further covenants that the
property herein conveyed shall be subject to an annual
maintenance charge in such amount as shall be
determined by Eastwood Commons SunnyhIll Homeowners
Association, Inc., its successors and -assigns, and in
addition real property taxes on common areas, if
separately assessed, and special assessments, as Oct
forth in Article IV of the Declaration, which sums
shall be paid monthly, in advance on the lot day of
each month, and on each monthly date such charges shall
become liens upon the land and so continue until fully
- - ---- -8 r+6- hart does hereby
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authorize and empower said Eastwood Commons Sunnybill
Homeowners Association, Inc., its successors and*
assigns, to bring any and all actions or legal
proceedings in the name of Eastwood Commons Sunnybill
Homeowners Association, Inc., its successors and
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assigns, for the obligation -of such charges and the
enforcement of such liens. Such charges shall be
payable to Eastwood Commons Sunnybill Homeowners
Association, Inc., its successors and assigns and shall
be used exclusively to promote the, recreation, health,
safety, and welfare of the owners and for the
improvement, maintenance and payment of real property `a
taxes of the Common Area, including the pavilion, if
applicable, and for the improvement and maintenance of
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the hones, garages and/or pavilion, if situated upon
the Properties."
Section 2. Purpose of Assessments. The assessments levied by the
Association shall be used exclusively to promote the recreation,
health, safety and welfare of the owners, and for the
Improvement, maintenance and payment of real property taxes of
the Common Area, including the pavilion, if applicable, and for
the improvement and maintenance of the` homes, garages and/or
pavilion if situated upon the Properties.
Section 3. Annual maintenance Assessment. Until Janusiy 1 of the
year immediately following the conveyance of the.firs.t Lot to an
Owner, the base rate for the annual maintenance assessment shall
be $108.76 per ■oath per Lots
(a) From -and after January lot of the year immediately
following the conveyance of the first lot to an Owner,
the annual maintenance assessment shall be increased or,
decreased in conformance with the percentage rise or
fall, if any, of the Consumer Price Index (published by
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the Department of Labor, Washington, D.C.) of the most
recent month of July from the month of July of the year
immediately previous thereto, without a vote of the
membership; in addition, if the pavilion or one or acre
of the three phases of the pavilion is built and either
leased or conveyed to the Association, the base rate for
assessments may be increased up to ten (10) percent by
{ the Board of Directors without a vote of the membership.
(b) From and after January lot of the year immediately
following the conveyance of the first lot to an Owner,
the annual maintenance assessment may be increased or
decreased above or below that requred by sub -paragraph
(a) of this section by a vote of two-thirds (2/3) of
each classof members who are voting in person or by
proxy at a meeting duly called for this purpose;
,- provided however that in any case the approval of the
..: Class B member suet be given.
(c) Any excess funds in a given year over those required for.
annual maintenance and funding of the appropriate
i replacement reserve shall be added to a contingency fund
for unforeseen expenses or capital improvements' approved
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by the Board of Directors.
Section 4. Special Assessments for Capital Improvements. In
addition to the annual maintenance assessments authorised above,
any assessment year, a special
year only for the purpose of
the cost of any construction,
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reconstruction, repair or replacement of a capital improvement
upon the Common'Area including fixtures and personal property
related thereto, provided that any such assessment shall have the -
assent of two-thirds (2/3) of the votes of each class of members
who are voting in person or by proxy at a meeting duly called for
this purpose; provided however that in any case the approval of -
the Class B member must be given.
Section 5. Notice and Quorum for Any Action Authorised Under
Section 3 or b. Written notice of any meeting called for the
purpose of taking any action authorised under Section 3 or d
shall be sent to all members not less than 15 days nor more than
50 days in advance of the meeting. At the first such meeting
called, the presence of members or of proxies entitled to cast
sixty (602) percent of all the votes of each class of membership
shall constitute a quorum. If the required quorum is not present, a
another meeting may be called subject to the same notice
requirements, and the required quorum on the subsequent meeting
shall be one-half (1/2) of the required quorum at the preceding
meeting. No such subsequent meeting shall be held sore than 60
days following the preceding meeting.
Section 6. Rate of Annual Maintenance and Special Assessments.
Both annual maintenance and special assessments must be fixed by
the Board of Directors of the Association for all Class I Lots.
After Association charges have been levied on one or more owners
who have closed title to their homes or lots, Declarant's
obligation for Association charges for unsold homes or lots which
are subject to the Declaration shall be the amount of the
differencebetween the actua,r Association expenses Including
reserves applicable to completed improvements as provided for in'``�'::
the Association's budget, and the Association charges levied on
owners who have closed title to their homes or lots. _
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` site of the unit and'facilities included and will be established
by the Declarant . as a percentage of the base rato (for example,
752 of the base rate or 125% of the base rate). As land is
annexed to the Association property and made subject to this
Declaration pursuant to Article X, Section 4, the percentage of.
the base rate to compute the annual maintenance and special
assessments payable by any Class I lots so annexed shall be
determined by the mutual agreement of the Association (acting
through its Board of Directors) and the Declarant. Such
percentage rate shall be determined at the time of the proposed
annexation and specified in the document of annexation. If the
association and declarant are unable to agree on a percentage,
the new lots shall pay the base rate. The percentage rate
r specified as above may be subs*quantly changed by mutual
agreement of the owner of. the lot and the Association provided,
however, that (a) such change shall be authorized by at least 90%
of the Directors of the Association and (b) after such change the
Owner pays an as-sessment that reasonably represents bit fair
share of the costs for which the assessments are made taking into
account the relative sire, nature of construction, use of common
areas, etc* of his hose relative to the other homes in the
development, Prior to occupancy or conveyance of any lots in the
annexid area, such lots shall be treated as Class II lots until
they meet the definition of Close I lots as set forth in Article
I, Section S.
Section 7. Propertr Tax Assessment. Unless such taxes are
Included in the individual residence tax assessment by the
assessing authority, the state and local real property taxes
assessed on the common area will be paid through the Association
by all owners of Class I lots and Class II lots. Each Lot will be
assessed by the Association for a pro -rota share of the real
property taxes on the -common area based upon the proportionate
rate of assessment for annual maintenance and special assessments
for each lot, which real property tax assessments shall be paid
monthly in advance to the Association.
Section S. Date of Commencement of Annual Maintenance
Assessments: Due Dates. The annual •eIntenance•asses *stent@
provided for herein shall commence as to all Lots on the first
day of .the month following the conveyance of the Common Area. The
annual maintenance assessments applicable to any annexed lots
shall commence as to such lots on the first day of the month
•following the annexation of the land to the other areas subject -
to these declarations. The first annual maintenance assessment•
shall be adjusted according to the number of months remaining in
the calendar year. The Board of Directors shall fix the amount of
the annual maintenance assessment for each Lot at least. thirty
(30) days in advance of each annual assessment period. Written
notice of the annual maintenance assessment shall be sent to
every Owner subject thereto. The due dates shall be established
by the Board of Directors, and, unless otherwise provided, the
Association shall collect each month from the' owner of each Lot
one -twelfth (1/12) of the annual maintenance assessment for such
Lot. The Association shall, upon demand, and for a reasonable
charge, furnish a certificate, signed by an officer of the
Association setting forth whether the assessments on a specified
Lot have been paid. Such Certificates shall - be conclusive
evidence of payment of any assessment therein stated to have been
paid.
Section 9.
Date of
Commencement of Property Tax Assessments.
unless such
taxes are
included in the individual
residence tax
assessment
by the
assessing authority, the
property tax
assessments
provided
for herein shall commence as
to all Lots on
the first day of the
month following the conveyance
of the Common
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this Declaration shall consence on the first day of the mouth
following the date of annexation. Upon transfer of title to a.
single family residential unit the real 8 y � property taxes shall be
adjusted and apportioned. In addition to the adjustment of taxes
at the time of transfer of title to a single family residence
unit, if applicable, a purchaser shall deposit in escrow with the }
Association a sufficient sum to pay his pro-rata .share of the g.
next due property taxes on the.Common Area.
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Section 10. Effect of lion payment of
Assessments. Remedies of the
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Association. Any assessments which are
not paid when due
$ball be
delinquent.. If the assessment is not
paid within thirty
(30) days j
after the due date, the assessment
shall bear interest
from the
due date at the maximum legal
rate of interest
and the
Association may bring an action at law against the Owner
personally obligated to pay the same, or foreclose the lien
against the property, and interest, costs, and reasonable
attorney's fees of any such action shall be added to the amount
of such assessment.' Each such Owner, by his acceptance of a deed
.'' to a Lot, hereby expressly vests is the Eastwood Commons
Suanyhill Homeowners Association, Inc., or its agents the right
and power to bring all actions against such Owner personally for
the collection of such charges as a debt and to enforce the
aforesaid lien by all methods available for the enforcement of
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name of the Association in a like manner. as a mortgage or deed of
trust lien on a real, property and such owner hereby expressly
grants to the Association a power of sale in connection with said
lien. The Lien provided for in tbii section shall be in favor of
the Association and shall be for the benefit of all other Lot
owners. The Association, acting on behalf of the Lot owners shall
have the power to bid in an interest foreclosed at foreclosure
sale and 'to acquire and hold, lease., mortgage and convey the
ease; and to subrogate so much of its right to such liens as may
w� wrwr��rta nr rernrAtrnt to wn inSUrMaCe eOMDanv continuinit to
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give total coverage notwithstanding nonpayment of such defaulting
owner's portion of the premium. No Owner may waive or otherwise
escape liability for the assessments provided for herein by non-
use of the Common Area or abandonment of his Lot.
Section 11. Subordination of the Lien to Mortga_ gas_ The lien of
the assessment provided for herein shall be subordinate to the
lien of any first mortgage. Sale or transfer of any Lot shall not
affect the assessment lien. However, the sale or transfer of any
lot pursuant to mortgage foreclosure or any proceeding in lieu
thereof, shall extinguish the lien of such assessments me to
payments which became due prior to such sale or transfer. No so4e
or transfer shall relieve 'such Lot from liability to eny r
assessments which thereafter become due or from the lieu thereof.
Section .12. Exempt Property. All properties dedicated to and
accepted by, a local public authority or municipality, and the
Common Area and the Pavilion, if applicable, shall be exempt from
the assessments created herein. However, no land or improvements
devoted to dwelling use shall be exempt from said assessments.
Section 13. Management Agreements. Each Owner of a Lot hereby
agrees to be bound by the terms and conditions of all management
agreements entered, into -by the Association. A copy of all such
agreements shall be available to each owner. Any and all
management agreements entered' lut.p by the Association shall
provide that said management agreement may be cancelled prior to
Its expiration date by an affirmative vote of sixty•percent (602)
of the votes of each class of the Members of the Association who
are voting in person or by proxy at a meeting at which a quorum,
as defined in Article IV, Section S of this Declaration, is
present. In no event shall such management agreement be cancelled
prior to the affecting by the Association or its Board of
Directors of a new management agreement with a party or parties,
twILS
upon the cancellation of the preceding management agreement, It
shall be the duty of the Association or its Board of Directors to
effect a now management agreement prior to the expiration of any
prior management contract. Any and all management agreements
shall be made with a responsible party or parties having
experience adequate for the management of a project of this type.
Section 14. Insu*rance Coverage and Insurance Assessments. The
Board of Directors, or its duly authorized agent, shall have the
authority to and shall, obtain a blanket policy of insurance for
all, the buildings including the Pavilion, if applicable, and
Including all single family residential units and garages, the
cost of which shall be treated as an expense of the Association
and included as a part of -the annual maintenance assessment. The
blanket policy will .provide all risk insurance in the broadest
coverage available on all the dwellings within the Development,
excluding the contents thereof, but including the pavilion, if
any, insuring against loss or damage by fire or other hazards in
an amount sufficient to cover the full replacement- cost of any
repair or reconstruction work in the event _ of damage or
destruction from any hazard. At some time in the future, the
Board of Directors of the Association may decide, in its sole
discretion, by a vale of seventy—five (75) percent of the Board
of Directors to require the individual owners to provide
homeowner's policies on their own lot and improvements thereon
(in place of the blanket policy described above) at their own
expense, with the coverage and details of the policy being to the
complete satisfaction of the Board of Directors insuring against
loss or damage by fire or other hazards _in an amount sufficient
to cover the full replacement cost of any repair or
reconstruction work in the event of damage or destruction from
any hazard, if the Board of Directors so requires the individual
owner to provide his/her own homeowner's policy and if the
Individual owner does not provide such policy then the Board of
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to and shall obtain insurance on such owner's lot .and °.
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Improvements thereon.
i
Whether blanket or individual policies, such policies shall
specifically cover each unit owner's garage. Such policies shall
provide that insurance proceeds paid on account of loss of, or
damage to, the real property shall be -adjusted with the
carrier(a) by the Association and shall be payable solely to the
bone owner s mortgagee, if any, and the Eastwood Commons
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Sunnyhill Homeowners Association, Inc., as Insurance Trustee for
the homeowner(s). Such insurance proceeds shall be applied to
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repair or restoration of the. property as hereinafter provided.
All such, insurance policies shall provide that coverage may not
be cancelled by the carrier without first giving the Association,'
and unit mortgagee, if any, ten days written notice of
cancellation. All such policies shall contain, if obtainable, a
waiver of the right of subrogation against any unit owner,
members of ,the unit owners family, the Eastwood Commons Sunnyhill
Homeowners Association, Inc., its officers, agents and employees,
as well as a waiver of the "pro-rata" clause.
Whether the Association- obtains a blanket policy as set
f orth above the cost of which is included in the annual
• maintenance assessment or elects to require the individual owner
to provide and pay for his/her own bomeowner'a policy as set
forth above, the Association shall also obtain a broad form
public liability policy covering all common arras and all damaje'
or injury caused by the negligence of the Association or any of
Its agents, officers or employees in an amount of not less than
one million dollars for each occurrence and such policies shall
contain a waiver of the right of subrogation against members of
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the Eastwood Commons Sunnyhill Homeowners Association, Inc., its
officers, agents and employees. In addition the Association
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the' coverages in this paragraph shall be a common expense of the
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Included .*a part of the annual maintenance
Association. and
assessment.
Premiums for insurance obtained by the Board of Directors
on any individual residences and garages (other than in the above
.°
blanket policy) shall not be a part of the common expenses or
annual maintenance assessment, but shall be an expense of the
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owner(s) of the specific residence or residences so covered and a
debt owed by such owners and shall be paid within twenty (20)
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days after notice of such debt and shall be collectible by any
procedure permitted by the laws of the State of New York. In
addition, if said debt is not paid within (20) twenty days after
notice of such debt such amount shall automatically become a
lien upon such owner's residence and shall continue to be such
'
Tien until fully paid. This lion shall be subordinate to the lien
of any first mortgage and shall be enforceable in the same manner
`-
as any lien created by failure to pay the maintenance
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assssaments.
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Any owner., may., if be/she wish**, at his/her own expense,
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carry any and all other insurance he/she deems advisable beyond
the, above mentioned blanket policy or that included in the
homeowner's policy required by the Association.
5
In the event of damage or destruction by fire or other
4'.
casualty to any property covered by insurance payable to the
Association as trustee for the homeowner or under the blanket
policy,. the Board of Directors 'shall, with the concurrence of
mortgages*, if any, upon receipt of the insurance proceeds,
contract to rebuild or repair such damaged or destroyed portions
of the property to as good condition as formerly. All such
Insurance proceeds shall be deposited in a bank or other
financial-institutiou, the accounts of which bank or institutions
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agreed to by said bank or institution that such funds may be
withdrawn only by signature of at least one-third (1/3) of the
members of the Board of Directors, or by an agent duly autborised
by the Board of Directors of the Association. The Board of
Directors shall obtain bids from, at least two reputable.
contractors, and then may negotiate •with any such contractors who
may be required to provide a full performance and 'payment bond
for the repair or reconstruction or rebuilding of such building
or buildings. In the event that insurance proceeds are
insufficient to pay all the costs of repairing and/or rebuilding
to as good condition as formerly, the Board of Directors shall
levy a special assessment, as provided in Article IV, Section 1,
against all owners of the damaged residences (including garages)
in such proportions as the Board of Directors deem fair, and
{ equitable in the light of the damage sustained by such residences
to make up any deficiency. To bake up any deficiency for repair
or rebuilding of the Pavilion, if applicable, and/or common area
the special assessment shall be levied against all owners, in
equal proportions or in proportion to the rate of payment of
annual maintenance and special assessments whichever method of
payment is determined to be fairer under the circumstances by the
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Board of Directors of the Association. In the event such
Insurance proceeds exceed the cost of repair and reeouutruction,
such excess shall be paid over to the respective mortgages* and '
owners in such proportions as the Board of. Directors deem fair
and equitable in the light of thi damage sustained by such
residences. Such payments shall be sad* to all such owners and
their mortgagees as their interests may appear.
Nothwithstanding the foregoing provisions of thi* Section
14, it is further provided that the requirement for the
maintenance of insurance on a residence shall not apply to any
residence acquired by the Veteran's Administration or Taderal
Housing Administration under a mortgage foreclosure during the
M
laderal Housing Administration.
ARS'ICLE V
_ ARCHITECTURAL CONTROL
No building, fence, wall or other structure shall be
cossencad, erected or maintained upon the Properties, except by
the Declarant, nor shall any exterior addition to or change or
alteration therein by Bade, except by the Declarant, until the
plans and specifications showing nature, kind, shape, height,
materials, and location of the same shall have been submitted to
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and approved in writing as to harmony of external design and
location in relation to surrounding structures and topography by
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the Board of Directors of the Association, or by an architectural
committee composed of three (3) or more representatives appointed
by the Board. In the event said Board, or its designated
3,
committee, fails to approve or disapprove such design and
location within thirty (30) days after said plane and
i.
specifications have been submitted to it, approval will not be
required and this .Article will be deemed to have been fully
complied with.
ARTICLE VI .
PARTY WALLS
Section 1. General Rules of Law to ARply. Each wall which is
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.built as part of the original construction of the homes upon the
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Properties and placed on the dividing line between the lots shall
constitute a party wall, and, to the extent not inconsistent with
the provisions of this Article the general rules of law regarding
party walls and liability for property damage due to negligence
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. or willful acts or omisious *ball apply thereto.
Section Z. Sharing of Repair and Maintenance. The cost of
reasonable repair and maintenance of a party wall shall be shared
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by the owners who make use of the wall 'in equal proportions to
such use.
Section 3. Destruction by Fire or Other Casualty. If a party wall.'
Is destroyed or damaged by fire or other casualty then, to the `r
extent that such damage is not covered by insurance and repaired
out of the proceeds of same, any Owner who has used, the wall may
restore it, and if the. other owners thereafter make use of the
wall, they shall contribute to thecost of restoration thereof in
equal proportions without prejudice, however, to the right of any
such Owners to call for a larger contribution from the others
under any rules of law regarding' liability for negligent or
M^ willful acts or omissions.
Section 4. Weatherproofin Notwithstanding an other o
� 8 y provision
of this Article, to the extent that such damage is not covered
and paid by the insurance provided for herein, an Owner who by
his negligent or willful act causes the party wall to be exposed
to the elements shall bear the whole cost of furnishing the 4
necessary protection against such elements.
Section S. Right to Contribution Runs with Land. The right of any
-'Owner to contribution from any other Owner under this Article
shall be appurtenant to the land and shall pass to such Owner's
successors in title.
Section 6. Arbitration. In the event of any dispute arising
concerning a party wall, or under the provisions of this Article$
each party shall choose one arbitrator, and such arbitrators
shall choose one additiodal.arbitrator, and the decision shall be
by a majority of all the arbitrators. Should any' party refuse to
appoint an arbitrator within ten days after written request „
therefor, the Board of Directors of the' Association shall select
�� �w1.�M��}AM fAP the r�fuaie4 tarty.
ARTICLE VII
EXTERIOR MAINTENANCE
�."-.
In addition to maintenance upon the Common Area, including
the Pavilion, if applicable, the Association shall provide
exterior maintenance upon each Lot which is subject to assessment
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'hereunder, as follows= paint, repair, replace and care for roofs,
gutters, downspouts, patio fences and/or entry' -courtyard fences,
balconies, exterior building surfaces (including garages) trees,
shrubs, grass, walka, other exterior improvements. Such exterior
- maintenance shall not include glass surfaces, screens and screen
doors, exterior door and window fixtures and other hardware and
area inside patios or entry courtyards.
In the event that the need for maintenance or repair is
caused through, the willful or negligent act of the owner, his
family, or guests, or invitees, and not covered or paid for by
Insurance on such lot, the cost of such maintenance or repairs
shall be added to and become a part of the assessment to which
such lot owner is subject.
ARTICLE VIII
USE RESTRICTIONS
Section 1. Said property is hereby restricted to residential
dwellings for residential use and appurtenant garages and a
pavilion. Said residential use shall be restricted to a single
family, which shall mean people related by blood or marriage, or,
no more than two people unrelated by blood or marriage. All
buildings or structures erected upon said Property shall be of
new construction and no buildings or structures shall be moved
from other locations onto said Property and no subsequent
buildings or structures other than single family residential
.< units joined together by a common exterior roof and foundation,
shall be constructed. No structures of a temporary character,
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trailer, basement, tent, shack, garage, or bar or other
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outbuilding shall be used on any portion of said Property at any
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time for residence either temporarily or permanently.
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No boats, trailers, compare or commercial vehicles of any
kind shall be parked, or kept, at any time, anywhere upon the
Property, except in a common area (if any), designated by the
Board of Directors. A separate monthly fee may be levied for use
of such common area so designated.
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Section 2. Each Lot, as defined in Article I, Section S, shall be
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conveyed as a separately designated and legally described
freehold estate subject to the terms, conditions and provisions
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hereof.
Section 3. Notwithstanding any provisions herein contained to the I
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contrary, it shall be expressly permissible for Declarant or the
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builder of said residences: to maintain during the period of
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construction and sale of said residences, upon such portion of
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the premises as Declarant deems necessary, such facilities as in
the sole opinion of Declarant may be reasonably required,
convenient or incidental to -the construction and sale of . oaid'
residences, including, but without limitation, a business office,
storage area, construction yards, signs, .modal units and sales
office.
Section 4. No animals, livestock, or poultry of any kind shall be
raised, bred or kept on any of said Lots, except that dogs, cats,'
or other household pets may be kept provided that they are not
kept, bred or maintained for any commercial purpose, and provided
that no more than two pets in the aggregrate may be kept in and
such residence.
Section S. No advertising signs (except one of not more than
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bilXboards, unsightly objects., or nuisances shall be erected,
placed or permitted to remain on said Property, nor shall said
Property be used in any way or for any purpose which may endanger
the health or unreasonably disturb the Owner of any residence or
any resident thereof. No business activities of any kind whatever
*ball be conducted in any building or any portion of said
Property; provided, however, the foregoing covenants shall not
apply to the business activities signs and billboards, or the
construction and maintenance of buildings, if any, -of Declarant,
its agents and assigns during the construction and sale period,
and of Eastwood Commons Sunnybill Someowners Association, Inc., a
non-profit corporation, incorporated or to be incorporated under
the laws of the State of New York, its successors, and assigns,
In furtherance' of its powers and purposes as hereinafter set
forth.
`r Section 6. All clotheslines, equipmentgarbage cans., woodpiles,
;
or storage piles shall be confined to garages and entry courtyard
areas or designated trash enclosure apd concealed from view of
neighboring residences, common area and streets. All rubbish,
trash, or garbage shall be regularly removed from the premises,
and shall not be allowed to accumulate thereon.
Section 7. Except in the individual enclosed entry courtyard
r areas, no planting or gardening shall be done, and no fences,
hedges or walls shall be erected or maintained upon said Property
except such as are installed in accordance with the initial
r• construction of the buildings located thereon or as approved by
the Association's Board of Directors or .their designated
Architectural representative. Except for the right of ingress and
egress, the Owners of Lots are hereby prohibited and restricted
from using any of said Property outside the building lines,
patio, entry courtyard and garage'aress, except as may be allowed
by the Association's Board of Directors. It is expressly
Y acknowledged and agreed by all parties concerned that this
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paragraph is for.the mutual benefit of all Owners of lots subject
to this Declaration and is necessary for the protection of said
Owners.
1
Section 8. maintenance, upkeep and repairs of any interior area
4
of the enclosed entry courtyard, screens and screen doors,
windows, exterior doors and window fixtures, and other hardware
shall be the sole responsibility of the individual 'owner of the
Lot appurtenant thereto and not in any manner the responsibility
A
of the Association. Any cooperative action necessary or
appropriate to the proper maintenance and upkeep of the Cosmos
Area and all exteriors and roofs of the residences, and 'the
Pavilion if applicable, including but not limited to, recreation
and parking areas and walks, shall be taken by, the Board of
Directors or by its duly delegated representative'.
Section 9. All fixtures and equipment installed within a
residence, commencing at a point where the utility lines, pipes,
wires, conduits or systems enter the exterior walls of a
residence, shall be maintained and kept in repair by the Owner
thereof. An Owner shall do no act nor any work that will impair
the structural soundness or integrity of another residence or
,impair any easement or hereditament, or do any act nor allow any
condition to exist which will adversely affect the other
residences or their Owners.
Section 10. Without prior written approval and the authorisation
of the Board of Directors, no exterior television or radio
antennas of any sort shall be placed, allowed or maintained upon
any portion of the improvements to be located upon the Property.,-.
nor upon any structure situated upon the Property.
Section 11. No action shall at any time be taken by the
Association or its Board of Directors which in any manner would
discriminate asaiast any Owner or Owners in favor of the other
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"r Owners.
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' ARTICLE IX
EASEMENTS
Section 1. Each resident and the property included in the Common
Area shall be subject to.an easement for encroachments created by.
construction, settling and overhangs, as designed or constructed
by the Declarant. A valid easement for said encroachments and for
the maintenance of same, so long as it stands, shall and does
1.
exist. In the event the structure containing two or more
residences is partially or totally destroyed, and then rebuilt,
the owners of the residences so affected agree that minor
encroachments on parts of the adjacent residence lots or Common
Areas due to construction shall be permitted and that a valid
easement for said encroachment and the maintenance thereof shall
exist.
Section 2. There is hereby created a blanket easement upon,
,.. across over and under all of said Proparty for ingress egress
•
for construction, trucks, and other vehicles, and installation,
replacing, repairing and maintaining all utilities, including but
not limited to water, sewers, gas, telephones and electricity, a
matter television antenna system and the meters therefor and for
the reading of such utility meters. By virtue of this easement it
1
shall be expressly permissible for the providing electrical 4
and/or telephone company to erect and maintain the 'necessary
equipment on said Property and maintain electrical and/or
telephone wires, circuits and conduits on, above, across and.
under the roofs and exterior walls of said residences. An
easement is further granted to all police, fire protection,
ambulance and Town of Ithaca officials and all similar persons to
enter upon the streets and Common Area in the performance of
their• duties. Further, an easement is hereby granted to the
mi
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GUAM
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tleR �12 aGE.1. 27
management company selected by the Association to eater in or to
cross over the Common Area and to enter any residence to inspect
and to perform the duties of maintenance and repair of the
residences or Common Area provided for herein to prevent damage j
to any other residence or the Common Area. Notwithstanding r.
anything to the contrary contained'in this paragraph, -no sewers,
electrical lines, water lines, or other utilities may be
Installed or relocated on said Property except as initially
programmed and approved by the Declarant or thereafter approved
by Declarant or the Association's Board of Directors. Should any
utility furnishing a service covered by the general easement
herein provided request that a specific easement be a in separate
recordable document, Declarant shall have the right to grant such -- a
easement on said Property without conflicting with the terms
hereof. The easements provided for in this Article IX shall in so
way affect any other recorded easement on said premises.
Any of the foregoing easements may be granted or exercised
by the Declarant with respect to a developed portion of the
Property to facilitate development with respect to an undeveloped
portion of the property until the development is completed. In
the event it shall become necessary to excavate any area to
install utilities or for similar purposes, the Declarant shall
restore the area to its prior condition upon completion of the
work.
Section 3. Easements for underground utility service may be
crossed by driveways and walkways provided the 'Declarant or
Builder makes prior arrangements with the utility company
furnishing electric service. Such easements' for the underground
service shall be kept clear of all other improvements, including
buildings, patios, or other paving$, other than.crossing walkways
or driveways, except in the entry courtyards, and neither
Declarant nor any utility company using the easements shall be
AdIlk liable for any damage done by either of than or their &salsa$ ;
their agents, employees, or servants, to shrubbery, tress,
flowers, or other improvements of, the Owner located on the land
covered by said easements.
Section 4. Each. residential unit owner shall have an exclusive
*&tenant to nse the patio and entry courtyard area appurtenant to
such unit.
Section S. Each residential unit owner shall have an easement to
use the driveway and walkway appurtenant to his unit, along with
the unit owners whose residential units share such common
driveways or walkways. This easement shall not extend to any
other residential units owners.
Section 6. Each residential unit owner shall have an easement for
Ingress and egress over sidewalks as built to and from his unit
` to the public road and to the driveway, appurtenant to his unit.
The location of this easement may be altered should the location
of the sidewalks be changed to conforn to the location of the
sidewalks as relocated.
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ARTICLE E
GENERAL PROVISIONS
Section 1. Enforcement. The association, or any Owner, shall have
the right to enforce, by any proceeding at law or inequity, all
restrictions, conditions, covenants, reservations, liens and
charges now or hereafter imposed by the provisions of this
Declaration. failure by the Association or by any Owner to
enforce any covenant or restriction hereia� contained shall in no
event be deemed a waiver to the right to do so thereof ter. The
Town of Ithaca shall also have the power to enforce the aforesaid
but it is not obligated to do so.
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Section 2. Severability. Invalidation of any one of these
Q covenants or restrictions by judgement or court order shall in no
way affect any other provisions which shall remain in full force
and effect.
Section 3. Amendment. The covenants and restrictions of this
Declaration shall run with and bind the land, for a term of
twenty (20) years from the date this Declaration is recorded,
after 'which time they shall be automatically extended for
successive periods of ten (10) years. This Declaration may be
amended during the first twenty (20) year period by an Instrument
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signed by the owners of not less than ninety percent (90%) of the
Lots, and thereinafter by instrument signed by the owners of not
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` less than seventy-five percent (752) of the Lots. Any amendment
.
must be recorded. Any amendment shall be approved by the Town
Board of the Town of Ithaca before becoming effective and before
fit;
being recorded.
Section 4. Annexation of additional Property. (a) Annexation ofl
additional property shall require the assent of two-thirds (2/3)
of the Class A members, if any, at a meeting duly called for this
purpose, written notice of which shall be sent to all Class A
members not less than 15 days nor more than SO days in advance of
the mooting setting forth the purpose of the meeting. The
presence of members or of proxies entitled to cast sixty percent
(602) of the votes of Class A members shall constitute a quorum.
If the required quorum is not forthcoming at any meeting, another
meeting may be called, subject to the notice requirement set
forth above, and the required quorum at such subsequent meeting
shall be one-half (1/2) of the required quorum of the preceding
meeting. No such subsequent meeting shall be held more then 60
days following the preceding sooting. In the event that two-
thirds of the Class A membership are not present in person or by
proxy, Class A members not present say give their written consent
to the action taken thereat.
AdMkk (b) Additional land within the area described in Ehe dead
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. '. ,• ..'-r :r=k=. i...:+-:-rtM 7T "tea. � .; r -
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j from Enos A. Pyle to Eastwood Commons Development Company dated
.:
September 11, 1073, recorded.. in the Tompkins County Clerk's
Office in Book 510 of Deeds at page 676 and any other lands now
4
p`. or formerly owned by Enos A. Pyle north of Houness Lane and south
AY of the major portion of the premises so conveyed to Eastwood
j, Commons Development Company as set forth in the above deed,
�.., Including but not limited to the 8 pavilion and land underlying it
(bat excluding the real property' previously conveyed to Eastwood
Commons Residents Association, Inc. or owners who are members of
Eastwood Commons Residents Association, Inc.), may be annexed by
the declarant without the consent of the members within fifteen
.`' (15) years of the date of.this instrument.
Section S. Subordination. Any land or construction mortgage on
Association property shall be subordinate to this Declaration or
Include a covenant which insures the Sannybill Association's
and/or the home or lot owner's undisturbed use of the premises
for the purposes described in this Declaration even in the event
of foreclosure.
Section 6. Vote. Notwithstanding anything herein to the contrary
any and all actions 'requiring a vote or approval by the members
or by the Class A members shall be approved separately by Class A
a members and by Class B members.
Section 7. Gender and Grammar. The singular wherever. used herein
shall be construed to mean the plural when applicable and the
necessary grammatical changes required. to make the provisions
hereof apply either to corporations or individuals, men or women,
shall in all cases be assumed as though in each case fully
expressed.
IN WITNESS WHEREOF, the undersigned, being the Declarant
herein, has hereunto set its hand and seal this day of
1988.
Declarant
��.•� N ��, EASTWOOD COMMONS BUILDING CORP.
By $
-, •;oW�'d1h� i Titles Pro si en
AdML
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4
State of New York, County of Tompkins, as:
On this 6'7,,/. day of �� , 1988, before se personally
came NORBERT H. SCHICREL, JR., to me personally known, who, being
by me duly sworn, did depose and say that he resides at 85
Ferguson Road, Dryden, New York; that he is the President of
Eastwood Commons Building Corp., the corporation described in and
which executed the within instrument; that he knows the seal of
said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by order of the Board
of Directors of said corporation; and that he signed his name
thereto by like order.
-Notary Public
Tompkins County, ss: O l19.... ;�
Re rde I on the .. � Day of ..... ...»...
.......� q.. o'cl k�. ..M., in Libor ....JSZ... ..... of . .
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of pope ... ..............w. and examined ,,•J�BGi.+
M I.................................
...........
Clerk
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