GREENBRIAR AT WHITTINGHAM

Transcription

SECOND AMENDMENT
TO THE
PUBLIC OFFERING STATEMENT
FILED AND PRESENTED BY:
U.S. HOME CORPORATION
800 WEST MAIN STREET
FREEHOLD, NEW JERSEY 07728
FOR
(SECTION 2.1 - 67 HOMES)
(SECTION 2.2, Phases A & B - 115 HOMES)
(SECTIONS 2.2 Phases C through H, 1.3 - 405 HOMES)
LOCATED IN THE
TOWNSHIP OF MONROE, MIDDLESEX COUNTY, NEW JERSEY
NOTICE TO PURCHASERS
THIS SECOND AMENDMENT TO THE PUBLIC OFFERING STATEMENT IS FOR
INFORMATIONAL PURPOSES ONLY. PURCHASERS SHOULD ASCERTAIN FOR THEMSELVES
THAT THE PROPERTY OFFERED MEETS THEIR PERSONAL REQUIREMENTS. THE NEW
JERSEY DIVISION OF CODES AND STANDARDS, BUREAU OF HOMEOWNER PROTECTION,
DEPARTMENT OF COMMUNITY AFFAIRS HAS NEITHER APPROVED NOR DISAPPROVED THE
MERITS OF THIS OFFERING.
EFFECTIVE DATE OF PUBLIC OFFERING STATEMENT: JULY 14, 1994 REGISTRATION
NUMBER: #R 1532C
EFFECTIVE DATE OF FIRST AMENDMENT: OCTOBER 7, 1994 EFFECTIVE DATE OF
SECOND AMENDMENT: APRIL 20, 1995
THIS SECOND AMENDMENT TO THE PUBLIC OFFERING STATEMENT HAS BEEN FILED AND
PRESENTED PURSUANT TO THE PLANNED REAL ESTATE DEVELOPMENT FULL DISCLOSURE
ACT (N.J.S.A. 45:22A-21 ET SEQ.), AND OF THE REGULATIONS PROMULGATED
THEREUNDER.
PREPARED BY:
WENDELL A. SMITH, ESQ.
GREENBAUM, ROWE, SMITH, RAVIN & DAVIS
P.O. BOX 5600
WOODBRIDGE, NEW JERSEY 07095
SECOND AMENDMENT
TO THE
PUBLIC OFFERING STATEMENT
FOR
U. S. Home Corporation, a Delaware corporation (hereinafter the "Developer"),
with its principal office at 800 West Main Street, Freehold, New Jersey 07728
hereby amends its Public Offering Statement ("POS") for Greenbriar at Whittingham
(the "Development") effective July 14, 1994 and the First Amendment to the Public
Offering Statement effective October 7, 1994 as set forth herein.
Heretofore, the Developer has offered for sale pursuant to the POS sixtyseven (67) fee simple Homes in Section 2.1 of the Development. Under the terms of
the Public Offering Statement and ancillary governing documents, the Developer has
reserved the right to incorporate additional Homes into the Development and to
offer the additional Homes for sale. By means of the First Amendment to the Public
Offering Statement, the Developer exercised its right to offer for sale one hundred
and fifteen (115) additional fee simple Homes in Section 2.2, Phases A & B. By
means of this Second Amendment, the Developer is hereby exercising its right to
offer for sale four hundred five (405) additional fee simple Homes in Sections 2.2,
Phases C through H and 1.3 (the Model area) in the Development and the POS is
modified as herein provided.
1.
The Table of Contents is supplemented with the following:
13.
Estimated Operating Budget for 1995 based upon 587 Homes and Budget
Letter of Adequacy.
2.
follows.
Section
3
entitled
"Description
of
the
Development"
is
amended
as
A. The first paragraph is deleted in its entirety and replaced with the
following:
"The Development consists of approximately 343.2 acres of land owned by the
Developer upon which the Developer currently intends to construct 1,200 Homes and a
nine - hole golf course; together with certain other improvements, and hereby
offers for sale an additional four hundred five (405) fee simple Homes in Sections
2.2 and 1.3 (the Model area) of the Development."
B. The first and third sentences in the third paragraph in this Section are
deleted in their entirety and replaced with the following:
"The Homes, in Sections 2.2, Phases C through H and Section 1.3 (the Model
area) of the Development are intended to include 197 single family detached Homes
and 208 single family attached duplex Homes."
3. Section 9 entitled "Proposed Operating Budgets for Common Property" is
amended as follows:
A. In subsection B, Greenbriar at Whittingham Community Association, the
first sentence of the second paragraph is deleted in its entirety and replaced with
the following:
"Copies of the estimated operating budget for 1995 of the Greenbriar at
Whittingham Community Association, Inc. based upon five hundred eighty-seven (587)
Homes is attached hereto as Exhibit 13."
4. Section 7 entitled "Operation
Facilities" is amended as follows:
and
Management
of
Common
Property
and
A.
In Item B, the first sentence is revised to read as follows:
"GWCA was established as a New Jersey non-profit membership corporation on
August 19, 1994 under N.J.S.A. Title 15A prior to the conveyance of the first
Home in the Development.
In Item C, the first sentence is revised to read as follows:
"GGCA was established as a New Jersey not-for-profit membership corporation
on August 19, 1994 under N.J.S.A. Title 15A prior to the conveyance of a
first Home in the Development."
5.
Section 12 entitled, "Declaration of Covenants, Conditions and
Restrictions" is amended as follows: The first and second sentences in the last
paragraph in this Section are deleted in their entirety and replaced with the
following:
"Prior to the conveyance of the first Home in the Development, U.S.
Home Corporation recorded a Declaration of Covenants, Easements and Restrictions
for Greenbriar at Whittingham dated December 14, 1994 in the Office of the
Middlesex County Clerk on December 14, 1994 in Deed Book 4204 at Page 199 et sea.
Additionally, the Declaration of Covenants and Restrictions for the Greenbriar Golf
Course dated December 14, 1994 was recorded on December 14, 1994 in the Office of
the Middlesex County Clerk in Deed Book 4204 at Page 355 et seq."
6.
On Page 43, Section 15 entitled "Escrow Account" is deleted in its
entirety and the following is substituted therein:
"All deposit monies paid by a Home Owner directly or through his agents
or employees will be held in escrow by Stewart Title Guaranty Company ("Escrow
Agent") and shall be deposited in a trust account known as the "U.S. Home Escrow
Account", maintained at First Fidelity Bank, N.A., 72 West Main Street, Freehold,
New Jersey 07728, unless the Developer posts a bond or other security acceptable to
the Department of Community Affairs to ensure that all deposit monies will be
returned to purchasers upon any termination of the Agreement of Sale. The deposit
monies may be released from escrow by the Escrow Agent and utilized by the
Developer pursuant to the Down Payment Bond which the Department of Community
Affairs has accepted from the Developer to ensure that all deposit monies will be
returned to Home Owners upon any termination of the Agreement of Sale. In no event
will the deposit monies be released from escrow before the expiration of the seven
(7) day rescission period required by the Agreement of Sale. Any interest earned on
the deposit monies in trust will be paid to the Developer regardless of whether
title closes or the Developer is required to return the deposit monies to the Home
Owner.
PUBLIC OFFERING STATEMENT EXHIBITS
GREENBRIAR AT WHITTINGHAM COMMUNITY ASSOCIATION, INC.
7. Exhibit 12 - Declaration of Covenants, Easements and Restrictions for
Greenbriar at Whittingham ('Greenbriar Declaration") - A copy of the recorded
Greenbriar Declaration is attached hereto and made a part hereof.
8. Exhibit 13 - Estimated Operating Budget for 1995 Based upon 587 Homes and
Budget Letter of Adequacy - Copies of same are attached hereto and made a part
hereof.
9. Exhibit 15 - Agreement of Sale - The section entitled "Deposit Money" has
been modified. A copy of the revised Agreement of Sale is attached hereto.
10. Exhibit 18 - Proposed Amendment and Supplement for Incorporation of New
Phase - A copy of the Proposed Second Amendment and Supplement for the
Incorporation of the 405 Homes in Sections 2.2, Phases C through H and 1.3 (the
Model area) is attached hereto.
11.
Exhibit 20 - Declaration of Covenants and Restrictions for Greenbriar
Golf Course ("Golf Course Declaration”) - A copy of the recorded Declaration is
attached hereto and made a part hereof.
12.
Except as set forth in this Second Amendment to the POS ("Second
Amendment") for Greenbriar at Whittingham, all other provisions of the POS for
Greenbriar at Whittingham dated July 14, 1994, shall remain as stated.
The Developer has been represented by the law firm of Greenbaum, Rowe, Smith,
Ravin & Davis in the preparation of this Second Amendment. The law firm has made no
independent investigation or determination as to the accuracy of the facts and
statements set forth herein, but has relied on the representations made by the
Developer and its agents with respect thereto. Accordingly, although the law firm
has no specific knowledge to the contrary, it assumes no independent responsibility
to purchasers or other parties with regard to the accuracy or completeness of such
facts or statements.
The Developer hereby represents that to the best of its knowledge information
and belief, the statements and representations contained herein are true and
accurate.
U. S. HOME CORPORATION
THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK
EXHIBIT 12
Declaration of Covenants, Easements
and Restrictions
for
Greenbriar at Whittingham
DECLARATION
OF
COVENANTS, EASEMENTS AND RESTRICTIONS
FOR
Dated: December 14, 1994
Prepared By:
Record and Return to:
Wendell A. Smith, Esq.
Greenbaum, Rowe, Smith, Ravin & Davis
Metre Corporate Campus I
P.O. Box 5600
Woodbridge, New Jersey 07095
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS ............................................
1.00. General.....................................
1.01. Annual Common Expense Assessment ...........
1.02. Association ................................
1.03. Association Dues............................
1.04. Board.......................................
1.05. By-Laws.....................................
1.06. Capital Improvement Assessment .............
1.07. Certificate of Incorporation ...............
1.08. Common Expenses ............................
1.09. Common Property ............................
1.10. Community...................................
1.11. Declaration ................................
1.12. Developer...................................
1.13. Development ................................
1.14. Development Plan............................
1.15. Eligible Mortgage Holder ...................
1.16. Emergency Assessment .......................
1.17. Federal Mortgage Agencies ..................
1.18. First Mortgage..............................
1.19. Governing Documents ........................
1.20. Home........................................
1.21. Institutional Lender .......................
1.22. Lease.......................................
1.23. Lot.........................................
1.24. Member......................................
1.25. Miscellaneous Assessments ..................
1.26. Mortgage....................................
1.27. Mortgage Holder ............................
1.28. Owner.......................................
1.29. Party Wall..................................
1.30. Permitted First Mortgage ...................
1.31. Property....................................
1.32. Remedial Assessment ........................
1.33. Rules and Regulations.......................
1.34. Special Assessments ........................
1.35. Township....................................
ARTICLE II
PROPERTY SUBJECT TO THIS DECLARATION.....................
2.01. Property Subject to This Declaration .......
2.02. Additions to the Property...................
2.03. Procedure for Making Additional Phases
Subject to the Declaration..................
2.04. Assessment Obligation of the Developer .....
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Page
ARTICLE III
PROPERTY RIGHTS IN THE COMMON PROPERTY ..................
3.01. Home Owner's Right of Enjoyment.............
3.02. Title to Common Property....................
ARTICLE IV
EASEMENTS ...............................................
4.01. Home Owner's Easements......................
4.02. Developer's Easements ......................
4.03. Governmental Easements .....................
4.04. Institutional Lender's Easements ...........
4.05. Utility and Cable Communications Easement ..
4.06. Drainage Easement ..........................
ARTICLE V
RESTRICTIONS ............................................
5.01. Age Restrictions............................
5.02. Use.........................................
5.03. Obstruction.................................
5.04. Building....................................
5.05. Exterior Appearance ........................
5.06. Maintenance.................................
5.07. Insurance...................................
5.08. Display.....................................
5.09. Animals.....................................
5.10. Nuisance....................................
5.11. Structural Changes..........................
5.12. Commercial Vehicles ........................
5.13. Waste.......................................
5.14. Digging.....................................
5.15. Draperies...................................
5.16. Utilities...................................
5.17. Rental......................................
5.18. Lawn........................................
5.19. Home Upkeep.................................
5.20. Use of Water Retention Areas................
5.21. Sale of Home................................
5.22. Violations..................................
5.23. Wells.......................................
5.24
Conflicts...................................
ARTICLE VI
ASSESSMENTS..............................................
6.01. Creation of Payment Obligation and Lien ....
6.02. Liability for Assessments...................
6.03. Amount of Annual Assessments ...............
6.04. Date of Commencement of Annual Common Expense
Assessments and Due Dates...................
6.05. Annual Common Expense Assessment Not Made ..
6.06. Due Dates of Annual Common Expense
Assessment..................................
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Page
6.07.
6.08.
6.09.
6.10.
6.11.
6.12.
6.13.
6.14.
6.15.
Emergency Assessment ........................
Special Common Expense Assessments ..........
Capital Improvement Assessment ..............
Exemption for Capital Improvement
Assessments..................................
Remedial Assessment .........................
Miscellaneous Assessments ...................
Subordination of the Lien to Mortgage .......
List of Assessments, Notice of Assessment and
Certificate as to Payment....................
Acceleration of Assessment Installments and
Other Remedies of the Association............
Interest and Counsel Fees....................
Contribution to Capital......................
Conveyance...................................
6.16.
6.17.
6.18.
ARTICLE VII
USE OF COMMON EXPENSE ASSESSMENTS ........................
7.01. Use of Common Expense Assessments by
Association..................................
7.02. Services Which May Be Performed at the Option
of the Association - Procedure...............
ARTICLE VIII
GENERAL PROVISIONS .......................................
8.01. Duration.....................................
8.02. Notice.......................................
8.03. Enforcement..................................
8.04. Severability.................................
8.05. Amendments...................................
8.06. By-Laws and Administration; Changes in
Documents; Power of Attorney ................
8.07. Waiver.......................................
8.08. Rule Against: Perpetuities...................
8.09. Ratification, Confirmation and Approval of
Agreements...................................
8.10. Protective Provisions for the Benefit of
Eligible Mortgage Holders ...................
8.11. Eligible Mortgage Holder ....................
8.12. Prior Written Approval of 51% of Eligible
Mortgage Holders ............................
8.13. Prior Written Approval of 67% of Eligible
Mortgage Holders ............................
8.14. Implied Approval of Eligible Mortgage Holders
Assumed......................................
8.15. Notice of Non-Material Amendment ............
8.16. Notice.......................................
8.17. No Partition.................................
8.18. Common Expense Lien Subordinate .............
8.19. Inspection of Records........................
8.20. Notice of Meetings...........................
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31
32
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33
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34
35
36
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Page
8.21.
8.22.
8.23.
8.24.
Liability for Association Dues...............
Management Agreements .......................
Common Expense Default ......................
Notice-Homeowners Association ...............
ARTICLE IX
SPECIAL DEVELOPER'S RIGHTS ..............................
9.01. Ratification, Confirmation and Approval of
Agreements...................................
9.02. Rights Reserved to Developer ................
9.03. Transfer of Special Developer's Rights ......
9.04. Liability of Transferor......................
9.05. Transfer of Rights Requested ................
9.06. Foreclosure, Bankruptcy, Receivership .......
9.07. Liability of Successors......................
9.08. Ineffectiveness..............................
9.09. Activities...................................
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54
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55
55
56
57
EXHIBITS
A.
A-l.
B.
C.
D.
Metes and Bounds Description of Development
Phase I Description of the Property by Lot and Block
Development Plan B-l. Final Plat
Certificate of Incorporation of Greenbriar at Whittingham
Community Association, Inc.
By-Laws of Greenbriar at Whittingham Community Association, Inc.
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DECLARATION
OF
COVENANTS, EASEMENTS AND RESTRICTIONS
FOR
THIS DECLARATION OF COVENANTS, EASEMENTS AND RESTRICTIONS
("Declaration"), made this 14 day of December, 1994, by U.S. Home
Corporation, a Delaware corporation ("Developer"), with offices at
800 West Main Street, Freehold, New Jersey 07728;
W I T N E S S:
WHEREAS,
Developer
is
the
owner
of
approximately
343.2
acres real property in Monroe Township, Middlesex County, State of
New Jersey, which is a portion of that Planned Retirement Community
known as Whittingham, which portion (the "Development") is intended
to
be
ultimately
developed
for
approximately
1,200
residential
dwellings ("Homes") together with approximately 75 acres of land to
be developed for a nine hole golf course (the "Golf Course") and
certain other improvements; and
WHEREAS, the Development is to be known as "Greenbriar at
Whittingham"; and
WHEREAS,
the
Development
is
described
in
the
metes
and
bounds description attached hereto and made a part hereof as Exhibit
A and shown on the Development Plan attached hereto and made a part
hereof as Exhibit B; and
WHEREAS, the Development is to be implemented in phases
which are to be constructed by Developer and/or other builders; and
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WHEREAS, Phase I of the Development, which is intended to
contain
sixty-seven
(67)
fee
simple
single
family
detached
residential dwellings and lots (collectively "Homes"), is described
in the metes and bounds description attached hereto and made a part
hereof as Exhibit A-l and shown on Exhibit B-l attached hereto and
made a part hereof; and
WHEREAS, the Developer has reserved the right to subject
additional phases to this Declaration; and
WHEREAS,
the
Developer
intends
to
cause
the
Common
Property, as defined in Section 1.09 hereof to be constructed and
completed; and
WHEREAS, the Developer desires to record this Declaration
so as to impose upon the Development a. uniform scheme of covenants,
conditions,
restrictions,
easements,
assessments,
obligations,
charges and liens, for the purpose of protecting the value of the
Homes
to
purpose
be
of
constructed
providing
in
for
the
the
Development
ownership,
and
for
operation,
the
further
maintenance,
repair and replacement of the improvements to be constructed by the
Developer on the Common Property; and
WHEREAS,
the
Developer
intends
to
file
Amendments
and
Supplements to the Declaration in the Middlesex County Clerk's office
so as to subject all additional phases of the Development to this
Declaration; and
WHEREAS,
Developer
has
deemed
it
advisable
to
create
a
homeowners association to which shall be delegated and assigned: the
power and authority (i) to own, maintain and operate the Common
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Property;
(ii)
to
administer
and
enforce
the
covenants
and
restrictions governing the Development; (iii) to collect and disburse
all assessments and charges deemed necessary for such maintenance,
administration
and
enforcement;
and
(iv)
to
perform
such
other
services as may be deemed desirable to benefit its residents all as
hereinafter provided; and
WHEREAS, Developer has incorporated or will cause to be
incorporated under the laws of the State of New Jersey, a nonprofit
corporation
COMMUNITY
known
or
ASSOCIATION,
to
be
INC.
known
(the
as
GREENBRIAR
"Association")
AT
as
WHITTINGHAM
the
agency
to
perform various functions as set forth in this Declaration and the
Bylaws of the Association; and
WHEREAS,
the
Developer
intends
to
construct
certain
improvements to be located on the Common Property and when deemed
appropriate, by Developer, to convey title to such Common Property to
the Association; and
WHEREAS, all of the Home Owners within the Property will
automatically
HOMEOWNERS
become
members
ASSOCIATION,
ASSOCIATION,
INC.
INC.
("GGCA")
,
of
the
("WHOA")
which
Associations,
and
GREENBRIAR
membership
will
WHITTINGHAM
GOLF
COURSE
entitle
such
Owners to the use and enjoyment of (i) the Common Property of the
Association,
community
(ii)
wide
the
services
Whittingham
and
Clubhouse
recreational
and
facilities
certain
other
operated
and
maintained by WHOA, and (iii) the golf course and related facilities
to be operated and maintained by GGCA, all in accordance with the
rights and obligations of the respective governing
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documents
of
such
Associations,
including
the
payment
any
fees,
assessments or charges which may be required.
NOW, THEREFORE, Developer declares that the Property is and
shall be held, transferred, sold, conveyed, leased, occupied and used
subject
to
the
covenants,
restrictions,
conditions,
easements,
charges, assessments, obligations and liens hereinafter set forth in
this Declaration.
ARTICLE I
DEFINITIONS
1.00. General. The following words and terms, when used in
this Declaration, the Certificate of Incorporation, or the By-Laws,
shall have the following meaning unless the context in which same are
utilized
clearly
indicates
to
the
contrary.
Unless
the
context
clearly indicates otherwise, all definitions set forth in N.J.S.A.
46:8B-3 are incorporated herein by reference and the definitions set
forth herein shall be used in conjunction therewith.
1.01.
"Annual
Common
Expense
Assessment"
shall
mean
and
refer to those assessments imposed upon the Owner(s) as described in
Section 6.05 of this Declaration.
1.02. "Association" shall mean and refer to the Greenbriar
at Whittingham Community Association, Inc., a New Jersey not-forprofit corporation.
1.03.
"Association
Dues"
(also
"Dues"
or
"Assessments")
shall mean and refer to all assessments assessed by the Association
against the Owners.
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1.04.
Directors
of
"Board"
the
shall
Association
mean
and
and
any
refer
to
reference
the
Board
herein
or
of
in
the
Certificate of Incorporation, By-laws or Rules and Regulations to any
power, duty, right of approval or any other right of the Association
shall be deemed to refer to the Board and not the membership of the
Association, unless the context expressly indicates to the contrary.
1.05. "By-Laws" shall mean and refer to the By-Laws of the
Association,
together
with
all
future
amendments
or
supplements
thereto.
1.06. "Capital Improvement Assessment" shall mean and refer
to
those
assessments
imposed
upon
the
Owner(s)
as
described
in
Section 6.05 of this Declaration.
1.07. "Certificate of Incorporation" shall mean and refer
to the Certificate of Incorporation of the Association, together with
all future amendments or supplements thereto.
1.08. "Common Expenses" shall mean and refer to all those
expenses
(including
Association,
or
its
reserves)
incurred
respective
directors,
or
assessed
officers,
by
the
agents
or
employees, in the lawful performance of their respective duties or
powers.
Common
Developer
in
Expenses
the
shall
maintenance
not
of
include
lands
not
expenses
yet
incurred
subjected
to
by
this
Declaration.
1.09. "Common Property" shall mean and refer to all the
real property, improvements and facilities with the Development
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ultimately owned and operated by the Association, all as shown on
Exhibit B.
1.10. "Community" shall mean and refer to any portion of
that Planned Retirement Community known as Whittingham or Greenbriar
at
Whittingham
("Greenbriar")
which
has
received
final
site
plan
and/or subdivision approval from the Township of Monroe, either in
the past or in the future.
1.11.
"Declaration"
shall
mean
and
refer
to
this
Declaration of Covenants, Easements and Restrictions, including the
covenants, conditions, and restrictions as same may be amended from
time to time.
1.12.
Corporation,
a
"Developer"
Delaware
shall
mean
corporation,
and
its
refer
to
successors
U.S.
and
Home
assigns;
provided, however, that no successor or assignee of the Developer
shall
have
any
rights
or
obligations
of
the
Developer
hereunder
unless such rights and obligations are specifically assigned to it in
writing. Developer's rights hereunder shall cease when construction
of Homes contemplated by the Development Plan is completed and all
Homes are conveyed to Owners other than Developer.
1.13. "Development" shall mean and refer to approximately
343.2
acres
improvements
of
land
thereon,
together
with
owned
to
or
the
be
Golf
owned
by
Course
and
Developer
certain
as
more
particularly described in Exhibit A and as shown on Exhibit B hereto,
together with any other lands adjacent to the Community
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which Developer determines to annex to and incorporate within the
Development.
1.14.
"Development
Plan"
shall
mean
and
refer
to
the
Developer's general plan of development for 1,200 units as shown on
Exhibit B hereto.
1.15. "Eligible Mortgage Holder" shall mean and refer (i)
to the holder, insurer or guarantor of a First Mortgage encumbering
any Home who has requested in writing from the Secretary of the
Association notice of any proposed action by the Association or the
Home
Owners
which
requires
the
consent
of
a
specified
number
of
Eligible Mortgage Holders or (ii) any holder of a land, development
or construction loan from an Institutional Lender to the Developer
with respect to the Development.
1.16. "Emergency Assessment" shall mean and refer to those
assessments imposed upon the Owner(s) as described in Section 6.07 of
this Declaration.
1.17. "Federal Mortgage Agencies" shall mean and refer to
those federal agencies who have or may acquire an interest in the
Development,
including,
Administration,
the
but
Veterans
not
limited
to,
Administration,
the
the
Federal
Federal
Housing
National
Mortgage Association, and the Federal Home Loan Mortgage Corporation,
or successors to their interests.
1.18. "First Mortgage" shall mean and refer to the first or
paramount Mortgage, the lien of which encumbers a Home.
1.19. "Governing Documents" shall mean and refer to the
Certificate of Incorporation, the By-Laws, this Declaration, and
-7-
the Rules and Regulations, and all as may be duly amended from time
to time.
1.20.
"Home"
shall
mean
and
refer
to
any
individual
residential dwelling unit in the Development, including (i) single
family detached and attached units together with the Lots upon which
they are located and (ii) condominium units and other multifamily
dwellings, if any.
1.21. "Institutional Lender" shall mean and refer to any
bank, mortgage banker, trust company, insurance company, savings and
loan
association,
pension
fund
or
other
financial
institution
or
governmental agency providing, acquiring, insuring, guaranteeing or
proposing
to
provide,
acquire,
insure
or
guarantee
Mortgages.
It
shall also mean and include the Federal National Mortgage Association
(FNMA),
the
Veteran's
Administration
(VA),
the
Federal
Home
Loan
Mortgage Corporation (FHLMC), and the Federal Housing Administration
(FHA) and any other similar governmental or quasi-governmental entity
chat
provides,
acquires,
insures
or
guarantees
or
proposes
to
provide, acquire, insure or guarantee Mortgages.
1.22. "Lease" shall mean and refer to any agreement for the
leasing
or
rental
of
any
Home
within
the
Entire
Development,
including any sublease.
1.23. "Lot" shall mean and refer to any plot of land shown
upon any recorded subdivision map of the Entire Development with the
exception of Common Property.
-8-
1.24.
"Member"
shall
mean
and
refer
to
all
those
Home
Owners who are members of the Association as provided in Article V of
the Certificate of Incorporation.
1.25. "Miscellaneous Assessments" shall mean and refer to
those assessments imposed upon the Owner(s) as described in Section
6.12 of this Declaration.
1.26. "Mortgage" shall mean and refer to the duly recorded
instrument and underlying obligation giving rise to a Mortgage lien
upon any Home.
1.27. "Mortgage Holder" shall mean or refer to the holder
of
record
of
a
Mortgage
or
one
who
insures
or
guarantees
any
Mortgages.
1.28. "Owner" (also "Home Owner") shall mean and refer to
those persons or entities in whom record title to any Home is vested
as shown in the records of the Middlesex County Clerk including the
Developer
unless
the
context
expressly
indicates
otherwise,
but
notwithstanding any applicable theory of mortgage, shall not mean or
refer to any mortgagee unless and until such mortgagee has acquired
title to any such Home pursuant to foreclosure proceedings or any
proceeding in lieu of foreclosure. The term "Owner" shall not: refer
to any lessee or tenant of an Owner.
1.29. "Party Wall" shall mean and refer to the entire wall,
all or a portion of which is used for support of each attached
dwelling unit (if any) situate or intended to be situate between
adjoining Homes.
-9-
1.30. "Permitted First Mortgage" shall mean and refer to
any Mortgage that is held by an Institutional Lender or which is a
purchase money First Mortgage held by the Developer or any other
seller of a Home. It shall also mean and include any other Mortgage,
the
lien
of
which
by
the
expressed
terms
of
the
Mortgage
is
subordinate to any and all existing or future Common Expense liens
imposed by the Association. Any acquisition, construction, permanent
or other Mortgage placed by the Developer upon all or a portion of
the Property including any Home, shall also be a Permitted Mortgage
so
long
as
same
is
expressly
made
subordinate
to
the
Governing
Documents and provides a mechanism for securing partial releases for
Homes.
1.31. "Property" shall mean and refer to (i) all those
lands and all those improvements now or hereafter constructed in,
upon,
over
or
through
such
lands
located
in
Monroe
Township,
Middlesex County consisting of sixty-seven (67) lots on approximately
16.7 acres of land as more particularly described in Exhibit A-l
hereof and designated as Phase I or Section 2.1 of Greenbriar at
Whittingham, and (2) any future lands which are lawfully subjected to
this Declaration.
1.32. "Remedial Assessment" shall mean and refer to those
this Declaration.
1.33. "Rules and Regulations" shall mean and refer to the
rules and regulations duly adopted by the Association with all future
amendments and supplements thereto.
-10-
1.34. "Special Assessments" shall mean and refer to those
this Declaration.
1.35. "Township" shall mean and refer to the Township of
Monroe in Middlesex County, New Jersey.
ARTICLE II
PROPERTY SUBJECT TO THIS DECLARATION
2.01. Property Subject to This Declaration. The Property,
including
every
Home
and
all
Common
Property
now
or
hereafter
expressly subjected to this Declaration, is, and shall be, held,
transferred, sold, conveyed, leased and occupied, subject to this
Declaration and all amendments or supplements hereto.
2.02. Additions to the Property. Developer, at Developer's
discretion, may subject additional phases within the Development to
this Declaration at any time within twelve (12) years from the dace
this
Declaration
is
recorded;
provided,
however,
under
no
circumstances shall Developer be required to make such additional
phases subject to the Declaration. All additional phases which are
made subject to the Declaration shall thereupon and thereafter be
included
with
the
term
"Property"
as
used
in
this
Declaration.
Developer neither commits to nor warrants or represents that any
additional phases shall be made subject to the Declaration. Developer
shall not need the consent or approval by either the Association or
its Members, to make subject to the Declaration any additional lands.
In
the
event
Developer
adds
additional
Developer reserves the right to
-11-
phases
to
the
Property,
alter the lot configuration depicted on Exhibit B or to alter the
type or form of ownership of the housing offered such that the type
of
housing
product
shall
rest
solely
with
the
discretion
of
Developer, its successors and assigns.
2.03. Procedure for Making Additional Phases Subject to the
Declaration.
Developer
may
make
additional
land
subject
to
the
Declaration by filing an Amendment and Supplement to this Declaration
with the Middlesex County Clerk's office for each phase added. Such
an Amendment and Supplement need only be executed by the Developer
and shall not require the joinder or consent of the Association or
its
members.
Such
Amendment
and
Supplement
may
contain
such
complementary additions to and modifications of the covenants and
restrictions contained in this Declaration as may be deemed necessary
and appropriate by the Developer, in its sole discretion.
2.04.
shall
have
Development
no
Assessment
Obligation
of
the
assessment
obligation
as
to
unless
it
is
actually
Developer.
any
incorporated
Developer
portion
as
part
of
the
of
the
to
the
Property in accordance with the provisions of this Declaration.
ARTICLE III
PROPERTY RIGHTS IN THE COMMON PROPERTY
3.01.
Home
Owner's
Right
of
Enjoyment.
Subject
provisions of the Governing Documents, every Home Owner shall have a
right and easement of enjoyment in and to the Common Property and
such easement shall be appurtenant to and shall pass with the title
to every Home.
-12-
3.02. Title to Common Property Developer may retain the
legal title to the whole or portions of the Common Property until
such
time
as
it
has
substantially
completed
initial
improvements
thereon (if any) and until such time as, in the sole judgment of the
Developer, the Association is able to maintain same. Developer shall
convey its entire interest in all completed portions of the Common
Property to the Association for One ($1.00) Dollar in consideration
and
free
and
clear
of
all
liens
and
encumbrances
(except
for
easements and standard title policy exceptions).
Despite
convey
any
of
the
the
foregoing,
facilities
Developer
above
at
reserves
an
earlier
the
right
date
and
to
the
Association shall be obligated to accept such conveyance(s) and shall
properly
maintain
the
Common
Property
in
accordance
with
this
Declaration and the By-Laws. Developer further reserves the right to
enter upon the Common Property conveyed until transfer of title to
the
last
Home
to
an
individual
purchaser,
at
which
time
the
reservation shall lapse, to do at Developer's sole expense whatever
grading,
improvements
or
other
work
that
Developer,
in
its
sole
discretion, deems necessary or desirable and provided further, that
such work shall not result in a significant financial burden to the
Association. Developer further reserves the right to enter upon the
Common Property at any time to do the final paving of the roadways or
other improvements or work that Developer, in its sole discretion,
seems necessary or desirable.
-13-
The
beneficial
use
of
various
portions
of
the
Common
Property will be made available to the Association and its Members
within thirty (30) days after completion of each such portion, and
the
cost
for
maintenance,
operation
and
administration
of
same,
including insurance premiums and the proportionate allocation of real
estate
for
taxes
("Maintenance
Costs")
shall
thereupon
become
a
Common Expense of the Association notwithstanding that legal title
remains in Developer. The beneficial use of the roadways will be made
available to the Association and its members as sections of roadways
are
completed
by
Developer
and
made
accessible
to
vehicular
and
pedestrian traffic. Although Developer reserves the right to retain
legal title to any or all roadways until the transfer of title to the
last Home to an individual Purchaser, the Maintenance Costs for each
roadway shall become a Common Expense of the Association at such time
as
each
roadway
is
made
accessible
to
the
Association
and
its
Members.
ARTICLE IV
EASEMENTS
The Property and rights and easements of enjoyment created
hereby shall be subject to the following easements:
4.01. Home Owner's Easements. Every Home Owner shall have a
perpetual and non-exclusive easement in, over and through the Common
Property and to use the roadways, walks and other facilities on the
Common
Property,
subject
to
the
right
of
the
Association
to
promulgate Rules and Regulations for the use and the enjoyment of the
Common Property and voting rights of any Home
-14-
Owner for any period during which any Assessment, interest or penalty
charge remains unpaid, or for any period during which any infraction
of the Governing Documents continues, it being understood that any
suspension for either nonpayment of any such assessment or violation
of the Governing Documents shall not constitute a waiver or discharge
of the Member's obligation to pay any Association assessment. When
any Home is not occupied by the Owner, such easement shall be solely
for the benefit of the permanent occupants thereof and their guests,
and not the Owner or his invitees.
Said easement shall also be subject to the right of the
Association to dedicate or transfer all or any part of the Common
Property to any municipal, County, State, Federal or other public
agency, authority, or utility, for such purposes and subject to such
conditions as may be agreed upon by the Members, provided that no
such dedication, transfer, or determination as to the purposes of or
as to the conditions of such dedication or transfer shall become
effective unless such dedication, transfer and determination as to
purpose and conditions thereof shall be authorized by the vote in
person or by proxy of two-thirds (2/3) of the aggregate votes held by
all members of the Association in good standing, and unless written
notice of the proposed resolution authorizing such action is sent to
every member at least sixty (60) days in advance of the scheduled
meeting, at which such action is to be taken and in the case of
dedication
or
transfer
to
the
Township
or
Middlesex
acceptance of such dedication by ordinance or resolution
-15-
County,
duly
adopted
by
the
governing
body
of
the
Township
or
Middlesex
County. A true copy of such resolution together with a certificate
showing
the
result
of
the
vote
taken
thereon
shall
be
made
and
acknowledged by the President or Vice President and Secretary or
Assistant Secretary of the Association, and such certificate shall be
annexed to any instrument of dedication or transfer affecting the
Common Property, prior to the recording thereof in the Office of the
Middlesex County Clerk. Such certificate shall be conclusive evidence
of authorization by the membership.
a.
A
perpetual
and
non-exclusive
easement
for
the
existence and continuance of any encroachment by his Home upon any
adjoining
Home
now
existing
or
which
may
come
into
existence
hereafter as a result of construction, repair, shifting, settlement,
movement of any portion of a Home, or as a result of condemnation or
eminent domain proceedings, so that any such encroachment may remain
undisturbed so long as the Home stands.
b. A perpetual and non-exclusive easement for ingress
and egress to his Home or parking space in, upon, under, over, across
and through (i) the roadways, driveways and walkways; or (ii) the
Common Property all as may be reasonably required for such ingress
and egress.
c. A perpetual and non-exclusive easement to use
and
maintain
all
pipes,
wires,
ducts,
cables,
conduits, public utility lines and other common facilities located on
any portion of the Property which serve the Home of an Owner or
Owners.
-16-
4.02. Developer's Easements. Developer, its successors and
assigns shall have the following easements:
a.
over,
under,
limitation,
A
blanket
across
Homes)
and
for
and
through
the
non-exclusive
easement
the
(including,
purpose
Property
of
installation,
in,
upon,
without
maintenance,
repair and replacement of (i) all sewer, water, power and telephone,
pipes,
lines,
mains,
gas
conduits,
waters,
poles,
transformers,
master television antennas or cable television facilities and any and
all
other
utility
or
cable
communications
systems
serving
the
Property; or (ii) any other improvements thereto, including the right
of ingress and egress, which easements shall be for the benefit of
(a) Developer for so long as Developer, its successors and assigns
shall be engaged in the construction, development and sale of Homes
in the Development; and (b) the Association on a perpetual basis in
connection with the proper discharge of its responsibilities with
respect to the Homes or Common Property. Should any governmental
agency or utility or cable communications company furnishing one of
the foregoing services hereafter request a specific easement by a
separate recordable instrument in connection with the furnishing of
any
such
service,
the
Board
shall
have
the
right
to
grant
such
easement, without payment of any consideration and without a prior
vote
of
the
members,
provided
that
it
does
not
adversely
and
materially impair the rights of any Owner.
b.
A
blanket,
perpetual,
non-exclusive
unobstructed easement in, upon, over, across and through the
-17-
and
roadways for any ingress and egress for the Developer and nonmembers
of the Association in connection with their use of the Greenbriar
Golf Course.
4.03.
perpetual
egress
and
in,
Township,
Governmental
Easements.
non-exclusive
upon,
over,
Middlesex
easement
across
County
and
and
the
There
of
shall
be
unobstructed
through
the
a
ingress
Property
Association,
blanket,
the
and
for
the
respective
officers, agents and employees of the Township, Middlesex County and
the
Association
and
for
all
policemen,
firemen
and
ambulance
personnel in the proper performance of their respective duties; and
4.04. Institutional Lender's Easements. Any Institutional
Lender who is a Permitted Mortgage Holder (and its officers, agents,
and employees) , shall have a blanket, perpetual and non-exclusive
easement to enter the Property or any part thereof to inspect the
condition and repair of any Home encumbered by its Mortgage. This
right shall be exercised only during reasonable daylight hours, and
then, whenever practicable, only after advance notice to and with the
permission of the Association.
4.05.
Utility
and
Cable
Communications
Easement.
Any
utility company, cable communications company or entity furnishing
utility service, including meter or cable television or electronic
security service to the Property, its agents and employees, shall
have a blanket, perpetual and non-exclusive easement to enter the
Property, or any part thereof, in order to read meters, service or
repair utility lines and equipment and do everything and anything
else necessary in order to properly maintain and furnish utility
-18-
or cable communication service to the Property and Homes. Moreover,
the Association shall have the right to enter upon any Lot to lock or
unlock
any
valves
for
the
irrigation
system
in
the
case
of
an
official water emergency.
4.06. Drainage Easement. Developer and Home Owners, their
successors and assigns, shall have a blanket, perpetual and nonexclusive
easement
in
common
in,
upon,
over,
under,
across
and
through the property for surface water runoff and drainage caused by
natural forces and elements, grading, and/or the improvements located
upon the Property. No individual Home or Home Owner shall directly or
indirectly interfere with or alter the drainage and runoff patterns
and systems within the Property.
ARTICLE V
RESTRICTIONS
In order to preserve the character of the Development as a
Planned Retirement Community and for the protection of the value of
the Homes, Developer declares that the Property shall be subject to
the
following
restrictions
and
covenants,
all
of
which
shall
be
perpetual in nature and run with the land:
5.01. Age Restrictions. At least one (1) permanent resident
of a Home must be at least fifty-five (55) years of age or older and
all other permanent residents of a Home must be at least forty-eight
(48) years of age or older. In no event may any Home be occupied by
more than four (4) permanent residents.
Despite the foregoing, visitor occupants of any age shall
be permitted to visit up to four (4) weeks during any six month
-19-
period, of any year, or a maximum of eight (8) weeks in any twelve
month
period,
provided
that
at
no
time
shall
more
than
six
(6)
individuals reside temporarily in any Home.
5.02. Use. No Home, except those owned by Developer, or the
Association,
and
used
for
sales,
administration,
construction,
maintenance or similar purposes, shall be used for any purpose other
than as a private residence. Further, the Common Property shall not
be utilized for any residential or commercial purpose not expressly
permitted by this Declaration.
5.03. Obstruction. There shall be no obstruction of access
to any Common Property.
5.04.
plant,
or
No
Building.
maintain
any
Home
Owner
matter
or
or
occupant
thing
shall
(including,
build,
without
limitation, any plantings, lawn ornaments, additions, alterations,
improvements
to
any
Home)
upon,
in,
over
or
under
the
Property
without the prior written consent of the Covenants Committee, except
that a Home Owner may plant flowers, trees, shrubbery and gardens
within the two (2) foot wide area immediately adjacent to his Home.
In no event, shall there be erected or planted upon any Property any
fabricated
fence,
hedge
or
other
growing
fence.
This
restriction
shall not be applicable to construction by Developer.
5.05. Exterior Appearance. Owners shall not have any right
no change the appearance of any portion of the exterior of any Home
(including,
scheme)
without
without
limitation,
the
prior
any
written
Committee.
-20-
change
to
the
approval
of
exterior
the
color
Covenants
5.06.
perform
and
be
Maintenance.
responsible
Each
for,
Owner
at
his
shall
own
promptly
expense,
furnish,
the
repair,
maintenance, and replacement of his own Home, provided, however, that
the Association, its agents and employees may effect, at its sole
discretion, emergency or other necessary repairs which the Owner has
failed
to
perform
and
charge
the
cost
of
same
to
the
Owner(s)
involved as a Remedial Assessment.
5.07. Insurance. Nothing shall be done or kept in any Home
which
will
increase
the
rates
of
insurance
beyond
the
rates
applicable for Homes, without the prior written consent of the Board.
No Owner shall permit anything to be done or kept in his Home or in
or upon the Common Property which will result in the cancellation of
insurance on any of the Common Property or the contents thereof, or
which will be in violation of any law.
5.08. Display. No clothes, sheets, blankets, laundry of any
kind or any other articles shall be hung out or exposed on any part
of the Property nor shall anything be hung, painted or displayed on
the outside of the windows or placed on the outside walls or outside
surfaces
canopies,
of
doors
shutters,
of
any
earth
of
the
stations,
Homes
and
satellite
no
signs,
dishes,
or
awnings,
antennas
(except for those heretofore or hereinafter installed by Developer)
shall be affixed or placed upon the exterior walls or roofs of any
part thereof, nor relocated or extended, without the prior written
consent of the Covenants Committee. Television or radio antennas are
not permitted under any circumstances. Home Owners shall allow a
cable communications
-21-
company to pre-wire a Home. The display or use of items visible in
the interior of any Home from the exterior thereof shall be subject
to the Rules and Regulations. Despite the foregoing, Developer and
any Builder of a new Home shall have the right to display signs for
promotional,
sales,
exhibit,
and
administrative
purposes
upon
any
portion of the Common Property or within any Home owned by it until
the last Home within the Development is sold and conveyed. Owners
shall not cause or permit any signs to be displayed on the Property
advertising the sale or lease of their Homes. Signs for any other
purpose are prohibited except as may otherwise be provided by the
Rules and Regulations. The Developer or the Board shall have the
right to immediately cause the removal of any sign violating this
provision
and
obtain,
in
addition
to
any
penalties
which
might
otherwise be imposed by the Association, all costs incurred by such
removal.
5.09. Animals. No more than two (2) dogs or cats in the
aggregate shall be permitted in any Home. In no event shall outdoor
pens or runs be permitted. All Owners and their guests, invitees,
agents and others who allow or permit their pets and/or animals in
their
charge
to
defecate
upon
the
grounds
of
the
Property
shall
immediately thereafter remove from the grounds of the Property any
and all excrement left by the pet or animal and dispose of it as soon
as possible in a sanitary fashion. All Owners, guests, invitees,
agents and other shall accompany the pet or animal in their charge at
all times, shall keep the pet on a leash when it is not on one
Owner's Property, and shall carry with
-22-
them at such time devices necessary to remove the pet excrement,
which removal shall be done immediately.
5.10.
Nuisance.
No
noxious,
hazardous,
or
offensive
activities shall be carried on, in or upon the Property or in any
Home
nor
shall
anything
be
done
therein
either
willfully
or
negligently which may be or become an annoyance or nuisance to the
other residents or which interferes with the peaceful possession and
proper use of the Property by the other Owners. All valid laws,
zoning ordinances and regulations of all governmental bodies having
jurisdiction over the Property shall be observed.
5.11. Structural Changes. Nothing shall be done to any Home
which will impair the structural integrity of any Home or which will
structurally change a Home. No Owner (other than Developer) may make
any structural additions, alterations or improvements in or to his
Home without the prior written approval of the Covenants Committee or
impair
any
easement
without
the
prior
written
consent
of
the
Covenants Committee subject to the right of appeal to the Board and
as provided in the By-Laws.
5.12. Commercial Vehicles. No commercial vehicles may park
overnight and no boats, trailers, campers, mobile homes, or trucks
may
be
parked
on
any
part
of
the
Property
except
(i)
in
areas
specifically designated for such purpose by the Association; and (ii)
for
those
vehicles
temporarily
on
the
Property
for
purposes
of
servicing the Property itself or one of the Homes. This restriction
shall not apply to Developer, its employees, agents, contractors or
servants.
-23-
5.13. Waste. No portion of the Property shall be used or
maintained as a dumping ground for rubbish. Trash, garbage or other
waste shall be kept in sanitary containers. Any contractor, repairman
or other person retained by a Home Owner to perform work on any Home
or Common Property shall clean up all rubbish at the conclusion of
each
work
day.
Trash,
garbage,
or
other
waste
shall
be
kept
in
sanitary containers as approved by the Board on the Owner's Home for
weekly or more frequent collection.
5.14. Digging. There shall be no digging or earth removal
or regarding operations of any nature whatsoever on any Property
without first obtaining permission from the Covenants Committee. This
section is intended as a protection against inadvertent disruption of
underground services and creation of a nuisance to adjoining property
owners.
5.15.
Draperies.
Draperies,
blinds,
curtains
or
other
window coverings must be installed and maintained by each Home Owner
on all windows of his Home.
5.16. Utilities. Each Home Owner shall pay for his own
telephone,
cable
television
services
and
utilities,
which
are
separately metered or billed to each user by the respective utility
or cable communications company.
5.17.
Rental.
No
Home
shall
be
rented
by
the
Owner(s)
thereof (except by Developer or an Institutional Lender in possession
of such Home following a default in a first mortgage, a foreclosure
proceeding or any deed or other arrangement in lieu of foreclosure)
or otherwise be utilized for transient or hotel
-24-
purposes, which shall be defined as "(i) rental for any period less
than 180 days; or (ii) any rental if the occupants of the Home are
provided customary hotel services, such as room service for food and
beverages, maid service, furnishing laundry and linen, and bellboy
service", without the prior written consent of the Association. In
the event the Owner fails to fulfill the obligation, then the Board
shall have the right, but not the duty, to institute and prosecute
such action as attorney-in-fact for the Owner and at the Owner's sole
cost and expense, including all legal fees incurred. Said costs and
expenses shall be due and payable upon demand by the Association and
shall be deemed to constitute a lien on the particular Home involved,
and collection thereof may be enforced by the Board in the same
manner
as
the
Board
is
entitled
to
enforce
collection
of
Common
Expense Assessments.
5.18. Lawn. Each Home Owner shall keep the lawn on his Home
regularly
maintained
including,
without
limitation,
fertilization,
weed control and watering {the mowing and edging of the lawn being
the obligation of the Association). Owners shall regularly fertilize
lawns and remulch and weed mulched areas so that the lawns are in
harmony with properly maintained lawns. All Homes must have grassed
front lawns and grassed side and rear yards. No gravel or similar
type
lawns
are
permitted.
Where
an
irrigation
system
has
been
installed for any Home, a separate lock valve shall be required and
maintained which valve shall isolate the irrigation system for said
Home from the domestic water supply. In the event of an official
water emergency, the Association shall
-25-
have the right and obligation to close and lock such valve if the
Home Owner fails to do so.
5.19. Home Upkeep. Each Builder and Home Owner shall keep
the Home neat and clean, regularly removing any trash and debris.
5.20.
Use
of
Water
Retention
Areas.
Swimming,
bathing,
boating and other use of the water retention areas in the Development
shall
be
prohibited
except
when
in
accordance
with
Rules
and
Regulations prescribed by the Association. No docks, bulkheads or
other structures shall be erected in the water retention areas in the
Development
without
the
prior
written
approval
of
the
Covenants
Committee.
5.21.
Sale
of
Each
Home.
Home
Owner
shall
give
the
respective Secretaries of the Associations, WHOA and GGCA, timely
notice of the Home Owner's intent to list the Home for sale. Upon
closing of title, the selling Home Owner shall immediately notify the
Secretaries
of
the
Associations,
WHOA
and
GGCA,
of
the
name
and
address of the new Home Owner.
5.22.
Violations.
The
Board
shall
have
the
power
to
promulgate such Rules and Regulations as may be necessary to carry
out the intent of these restrictions and shall have the right to
bring lawsuits to enforce the Rules and Regulations promulgated by
it. The Board shall further have the right to levy fines for the
violation of such Rules and Regulations, provided that the fine for a
single violation may not, under any circumstances, exceed $100.00 for
a first violation or $250.00 for any violation subsequent to
-26-
a first conviction. For each day a violation continues after notice
is given, it shall be considered a separate violation. Any fine so
levied is to be considered as a Remedial Assessment to be levied
against the particular Owner involved, and collection may be enforced
by the Board in the same manner as the Board is entitled to enforce
collection
of
other
Assessments.
Fines
may
be
levied
against
an
Owner's tenant, and the Owner shall be jointly and severally liable
with his tenant for the payment of same. In the event the Board
institutes
legal
defendant(s)
action
shall
be
for
collection
responsible
of
for
any
fines,
payment
of
then
the
reasonable
attorneys' fees of the Association plus interest and costs of suit.
5.23. Wells. No individual or entity shall have the right
to drill a well on the Property for any purpose other than those
wells constructed by Developer, in conjunction with the development
of the Property.
5.24
Conflicts.
If
there
are
any
conflicts
between
the
restrictions contained in this Article V and those provided in the
WHOA
Governing
Documents,
or
by
any
other
builder
within
the
Development, the most restrictive provision shall govern.
ARTICLE VI
ASSESSMENTS
6.01. Creation of Payment Obligation and Lien. Every Home
Owner by acceptance of a deed or other conveyance for a Home, whether
or not it shall be so expressed in any such deed or other conveyance,
shall be deemed to covenant and agree to pay to the
-27-
Association
all
Assessments,
fines
and
other
charges
contemplated
herein or in the By-Laws.
6.02. Liability for Assessments. No Home Owner may waive or
otherwise avoid liability for the Common Expense Assessments by nonuse of the Common Property, or otherwise. Each Assessment and all
fines and other charges shall be a continuing lien upon the Home
against which it was made and shall also be the joint and several
personal
obligation
of
the
Home
Owner
at
the
time
when
the
assessment, fine or other charge fell due, and of each subsequent
record
owner
of
such
Home,
except
as
otherwise
contemplated
by
Article VI of this Declaration or N.J.S. 46:8B-21 together with such
interest thereon as may be permitted by law and cost of collection
thereof
(including
reasonable
attorney's
fees).
Liens
for
unpaid
assessments, fines or other charges may be foreclosed by suit brought
in the name of the Association in the same manner as a foreclosure of
a mortgage on real property. Suit to recover a money judgment for
unpaid assessments, fines or other charges may be maintained without
waiving the lien securing the same.
6.03.
Amount
of
Annual
Assessments.
It
shall
be
an
affirmative and perpetual obligation of the Association and its Board
to fix assessments in a sufficient amount to discharge all of its
duties. Common Expenses will include all budgeted expenses of the
Association and will be allocated by the Board so that each Home
Owner shall be obligated to pay an assessment equal to that fraction
of the total Common Expenses, the numerator of which is
-28-
one and the denominator of which is that number of Homes located
within the Property for which a Certificate of Occupancy has been
issued by the Township, as of the date the assessment is established.
Despite anything herein to the contrary, no common expense assessment
of any type shall be made by the Association with respect to any Home
owned by Developer for which a Certificate of Occupancy has not been
issued
by
the
Township.
However,
Developer
shall
reimburse
the
Association for the actual costs incurred by the Association for any
services which Developer specifically requests in writing that the
Association perform on its behalf with regard to any other property
which
the
Developer
owns
in
the
Development,
including
without
limitation to the provisions of security and lot maintenance. In
addition, the distribution of any proceeds from any insured casualty
loss, eminent domain proceeding affecting the Common Property of the
Association or any distribution of common surplus of the Association
shall be allocated in accordance with the formula set forth above
with
respect
to
the
determination
of
Annual
Common
Expense
Assessments. Until such time as the Association and Board shall make
an Assessment for Annual Common Expenses, Developer shall pay all
Common Expenses.
Except as stated above, the amount of monies for Common
Expenses
deemed
responsibility
of
necessary
the
by
the
Association
and
Board
the
to
manner
discharge
of
the
expenditure
thereof, including, but not limited to, the allocation thereof, shall
be a matter for the sole discretion of the Board.
-29-
6.04.
Date
of
Commencement
of
Annual
Common
Expense
Assessments and Due Dates. The annual assessments provided for herein
shall commence on the date fixed by the Board to be the date of
commencement and shall be due and payable on such dates and in such
installments as may from time to time be prescribed by the Board.
6.05. Annual Common Expense Assessment Not Made. After the
Developer turns over control of the Board to the Home Owners, if an
Annual
Common
Expense
Assessment
is
not
made
as
required,
an
assessment shall be presumed to have been made in the amount of the
last prior year's assessment, and any installments of such annual
assessments shall be due upon each installment payment date until a
new Annual Common Expense Assessment is made.
6.06. Due Dates of Annual Common Expense Assessment. Annual
Common Expense Assessments shall be made for a yearly period to be
determined by the Board, and shall be payable in advance in monthly
installments or in such other installments as may be established by
the Board. Upon the conveyance of title to a Home, the portion of the
then current annual Common Expense Assessment payable by the new Home
Owner shall be an amount which bears the same relationship to the
annual Common Expense Assessment as the remaining number of months in
the then current annual assessment period bears to twelve. Such first
annual assessment or portion thereof for which a new Home Owner is
liable shall be immediately due upon such owner's acquisition of
title.
-30-
6.07. Emergency Assessment. In the event the Annual Common
Expense Assessment proves to be insufficient for an immediate need or
emergency, the budget and assessment may be amended at any time by
the
Board
and
the
Board
may
impose
an
Emergency
Assessment.
The
determination of an immediate need or emergency shall be in the sole
discretion of the Board.
6.08. Special Common Expense Assessments. In addition to
the Annual Common Expense Assessments authorized by Section 6.03 of
this Article, the Board may levy, in any assessment year, a Special
Common Expense Assessment, applicable to that year only, for the
purpose
of
defraying,
in
whole
or
in
part,
the
cost
of
any
construction or reconstruction, repair or replacement of a described
capital improvement upon the Common Property, not determined by the
Board to constitute an emergency or immediate need but for which
funds
held
in
reserve
are
inadequate,
including
the
necessary
furniture, fixtures, equipment and other personal property related
thereto, or for other lawful purposes, other than the acquisition of
new
capital
hereof,
improvements
provided
that
any
which
shall
such
be
Special
subject
Common
to
Section
Expense
6.10
Assessment
shall be apportioned in the same manner as a regular assessment and
that
if
during
any
assessment
year,
a
Special
Common
Expense
Assessment exceeds in the aggregate the sum of $10,000 increased by
the percentage increase in the Consumer Price Index for all Urban
Consumers since 1994, it shall receive the assent of two-thirds (2/3)
of all of the votes eligible to be cast by all of the members at a
Association meeting duly called for
-31-
this purpose. Written notice of such meeting shall be sent to all
members at least thirty (30) days in advance and shall set forth the
purpose of the meeting. The due date(s) of any Special Common Expense
Assessment, or any installment(s) thereof, shall be fixed in the
resolution authorizing such Special Common Expense Assessment. While
Developer
maintains
a
majority
additions,
alterations,
necessitate
a
Special
of
the
improvements
Common
Expense
Board,
or
it
shall
purchases
Assessment
or
make
which
a
no
would
substantial
increase in the Annual Common Expense Assessment unless required by a
government agency, title insurance company, mortgage lender or in the
event of an emergency.
6.09. Capital Improvement Assessment. In addition to the
other
Assessments
herein
authorized,
the
Board
may
levy,
in
any
assessment year, a Capital Improvement Assessment for the purpose of
acquiring or constructing a new capital improvement, provided that
the acquisition or construction of any new capital improvement, the
cost of which exceeds the sum of $5,000 increased by the percentage
of increase in the Consumer Price Index for all Urban Consumers since
1994, shall have been authorized by the assent of two-thirds (2/3) in
interest of the affected Members in Good Standing. This vote shall be
taken at a meeting duly called for this purpose. Written notice of
such a meeting, stating the purpose of the meeting, shall be sent to
all Home Owners no less than thirty (30) days in advance. The due
date(s) of any Capital Improvement Assessment, or any installment(s)
thereof, shall be
-32-
fixed
in
the
resolution
authorizing
the
Capital
Improvement
Assessment.
6.10.
Exemption
for
Capital
Improvement
Assessments.
Anything to the contrary herein notwithstanding neither Developer nor
any Permitted Mortgage Holder shall be required to pay any Capital
Improvement Assessments. Further, this provision may not be amended
without the written consent of Developer and every Permitted Mortgage
Holder.
6.11.
Assessments
Assessment
Remedial
herein
Assessment.
authorized,
against
any
the
individual
In
addition
Board
Home(s)
may
in
to
levy
the
a
accordance
other
Remedial
with
the
provisions of Article VI hereof regarding Home maintenance performed
by the Association. The Board may also provide, by its Rules and
Regulations,
for
ordinary
maintenance
and
minor
repairs
and
replacements to be furnished to Homes by Association personnel or
representatives and charged as a Remedial Assessment.
6.12. Miscellaneous Assessments. Any and all fines, lace
charges, costs of collection (including reasonable attorneys' fees),
interest
on
unpaid
Assessments,
capital
contributions,
membership
fees, escrow deposits or any other sums required to be paid to the
Association by a Home Owner by the provisions of this Declaration,
the
By-laws,
the
Certificate
of
Incorporation,
the
Rules
and
Regulations of the Association or any duly adopted Resolution of the
Board,
shall
be
deemed
Assessments
which
each
Home
Owner
has
covenanted and agreed to pay according to the provisions of Section
6.01 herein and for which each Home Owner is
-33-
liable according to the provisions of Section 6.06 herein, and shall
be
collectible
by
the
Association
in
the
same
manner
as
other
Assessments pursuant to the provisions hereof and N.J.S. 46:8B-21.
6.13. Subordination of the Lien to Mortgage. The lien of
the assessments provided for herein shall be subordinate to any lien
for past due and unpaid taxes and the lien of any first mortgage or
mortgages held by an Institutional Lender now or hereafter placed
upon any Home; provided, however, that such subordination shall apply
only to the assessments which have become due and payable prior to a
sale or transfer of any such Home pursuant to judgment of foreclosure
or a deed in lieu of foreclosure. Such sale or transfer shall not
relieve any such Home from liability for any assessments thereafter
becoming due, nor from the lien of any such subsequent assessment.
If an Institutional Lender or other purchaser of a Home
obtains title to such Home as a result of foreclosure of such first
mortgage (or by a deed of conveyance in lieu thereof) , such acquirer
of title, his successors and assigns, shall not be liable for the
assessments by the Association pertaining to such Home or chargeable
to the former Owner thereof which became due prior to acquisition of
title as a result of the foreclosure. Such unpaid sums shall be
deemed to be Common Expenses collectible from all of the remaining
Home Owners, including such acquirer, his successors and assigns.
-34-
Liens
for
unpaid
assessments
may
be
foreclosed
by
suit
brought in the name of the Association in the same manner as a
foreclosure of a mortgage on real property. Subject to the foregoing
exceptions, suit to recover a money judgment for unpaid assessments
may be maintained against the record Owner of the Home as of the
effective date of the assessment or against all subsequent record
Owners thereof, without waiving the lien securing same, all of which
record Owners shall be jointly and severally liable with respect to
same.
6.14.
List
of
Assessments.
Notice
of
Assessment
and
Certificate as to Payment. The Board shall cause to be prepared, at
least thirty (30) days in advance of the due date of each Annual or
Special Common Expense Assessment, a list of the properties and the
assessments applicable thereto, in alphabetical order, according to
the names of the Owners thereof, which list shall be kept in the
office
of
the
Association
and
shall
be
open
to
inspection,
upon
request, by any Owner. Written notice of the assessments shall be
sent to every Owner subject thereto.
The Association shall, upon the request of any Owner liable
for an assessment, or of the mortgagee of any Home, furnish to such
Owner or mortgagee, a certificate in writing, signed by an officer of
the Association, setting forth whether or not such assessment has
been paid. Such certificate shall constitute conclusive evidence of
the payment of any assessments therein stated to have been paid.
-35-
6.15.
Acceleration
of
Assessment
Installments
and
Other
Remedies of the Association. If an Owner shall be in default in the
payment of any installment upon a type of Common Expense Assessment,
the Board may accelerate the remaining installments of Assessment
upon
notice
of
the
Owner,
and
the
then
unpaid
balance
of
the
Assessment shall become due upon the date stated in the notice, but
not less than five (5) days after delivery of the notice to the
Owner, or not less than ten (10) days after the mailing of such
notice to him by regular mail, whichever shall first occur. If such
default shall continue for a period of thirty (30) days, then the
Board
may,
at
the
Board's
sole
discretion
(i)
accelerate
the
remaining installments of the Assessment and (ii) file a lien for
such accelerated Assessment and (iii) notify any mortgagee of the
Home affected of such default if such mortgagee has requested such
notice from the Association in writing. If said default continues for
a period of ninety (90) days, then the Board may, in the Board's
discretion, foreclose the foregoing lien pursuant to law and/or to
commence a suit against the appropriate Owner(s) to collect said
assessment.
6.16. Interest and Counsel Fees. The Board, at its option,
shall have the right in connection with the collection of this, or
any other charge, to impose a late fee, or an interest charge at the
legal maximum rate if such payment is made after a certain date
stated in such notice. In the event that the Board shall effectuate
collection of said charges by resort to counsel, the Board may add to
the aforesaid charge or charges a sum or sums
-36-
of twenty (20V) percent of the gross amount due as counsel fees, in
addition to such costs allowable by law.
6.17. Contribution to Capital. Each Home Owner shall at the
time
he
acquires
Association
a
title
to
contribution
his
to
Home
the
be
obligated
working
to
capital
pay
and
to
the
operating
expense of the Association equal to one-sixth (1/6) of the current
Association common expense assessment, which contribution shall not
be refundable and may be utilized for any lawful purpose which the
Board may deem appropriate. This provision shall apply to the resale
of all Homes as well as to the initial sale thereof.
6.18. Conveyance. Upon any voluntary conveyance of a Home,
a grantor and grantee of such Home shall be jointly and severally
liable for all unpaid Common Expense Assessments pertaining to such
Home duly made by the Association or accrued up to the date of such
conveyance without prejudice to the right of the grantee to recover
from the grantor any amounts paid by the grantee. The grantor shall
be exclusively liable for those accruing while he is the Home Owner.
ARTICLE VII
USE OF COMMON EXPENSE ASSESSMENTS
7.01. Use of Common Expense Assessments by Association. The
annual
assessments
levied
by
the
Association
shall
be
used
exclusively for promoting the health, safety, pleasure and welfare of
the
Home
Owners
and,
subject
to
any
reimbursement
received
or
services performed by the Township pursuant to the Municipal Services
Act, for the costs and expenses incident to the operation
-37-
of the Association, as contemplated by the Governing Documents.
7.02. Services Which May Be Performed at the Option of the
Association - Procedure. Developer shall have the right to make such
improvements and provide such facilities on the Common Property as it
considers to be advantageous to the Common Property and to the Owners
of
Homes.
The
Association
shall
be
obligated
to
accept
such
improvements and facilities and to properly maintain the same at its
expense; provided that the projected annual maintenance costs for
same shall not exceed in the aggregate an amount equal to one-sixth
(1/6) the current Annual Common Expense assessments per Home at the
time
of
completion.
The
Association,
at
its
expense,
also
shall
maintain and carry on the services instituted, from time to time, by
Developer for the benefit of the Common Property and the Owners. In
addition to the required maintenance of the Common Property and of
the improvements and facilities thereon, and the aforesaid services
required to be performed, the Association may furnish (but shall not
be required to furnish) such services as the Board from time to time,
by resolution, may propose, provided that the annual projected cost
of such additional services shall not exceed, in the aggregate, an
amount
equal
to
one-sixth
(1/6)
of
the
current
Annual
Expense
Assessment per Home. If the projected annual maintenance costs for
either such improvements or facilities or for the projected annual
costs
for
such
proposed
additional
services
do
exceed
in
the
aggregate one-sixth (1/6) of the current Annual Expense Assessment
per Home, then same must be authorized by a vote in person or by
-38-
absentee
ballot
or
consent
of
two-thirds
(2/3)
of
all
the
votes
eligible to be cast at a meeting of Members duly called for this
purpose.
ARTICLE VIII
GENERAL PROVISIONS
8.01. Duration. This Declaration shall run with and bind
all of the Property perpetually and shall inure to the benefit of and
be enforceable by the Association and the Owners, their respective
successors, assigns, heirs, executors, administrators and personal
representatives, except that the restrictions contained in Article V
hereof shall have a duration of thirty (30) years, at the end of
which period said restrictions shall be automatically extended for
successive periods of ten (10) years each, unless at least two-thirds
(2/3) of the Owners at the time of the expiration of the initial
period,
or
of
any
extension
period,
shall
sign
an
instrument
or
instruments, in which they shall agree to change said restrictions in
whole or in part.
8.02.
Notice.
Unless
otherwise
provided
in
this
Declaration, any notice required to be sent to any Owner under the
provisions of the Governing Documents shall be deemed to have been
properly sent, and notice thereby given, when mailed, by regular
post, with postage prepaid, addressed to the member or Owner at the
last known post office address of the person who appears as a member
or Owner on the records of the Association at the time of such
mailing. Notice to one of two Owners shall constitute notice to all
Owners thereof. It shall be the obligation of every Owner
-39-
to immediately notify the Secretary of the Association in writing of
any change of address. Valid notice may also be given to Owners (i)
personal delivery to any occupant of any Home over fourteen (14)
years of age; or (ii) by affixing said notice to or sliding same
under the front door of any Home.
8.03. Enforcement. Enforcement of this Declaration shall be
by
any
appropriate
proceeding
in
law
or
equity
in
any
court
or
administrative tribunal having jurisdiction, against any person or
persons, firm or corporation violating or attempting to violate or
circumvent
any
provision
herein
contained,
either
to
restrain
or
enjoin such violation or threatened violation or to recover damages,
and against any Home to enforce any lien created by this Declaration,
and failure by the Association or any Owner to enforce any covenant
or restriction herein contained for any period of time, shall in no
event be deemed a waiver or estoppel of the right to thereafter
enforce the same. In the event that the Association should at any
time fail to discharge its obligations to maintain any portion of the
Property as required by this Declaration or to enforce the provisions
hereof, any Owner shall have the right to enforce such obligations by
any proceeding a law or equity. A failure to so enforce any covenant
or restriction herein contained shall in no event be deemed a waiver
of the right to do so thereafter. Also, in such event, the Township
shall have the right to so maintain the Property or to enforce such
provisions
in
the
name,
place
and
stead
of
the
Association.
The
assumption of such maintenance responsibility shall be in accordance
with the
-40-
procedures set forth in N.J.S.A. 40:55D-43(b). The cost of same shall
be assessed, enforced and collected in accordance with the provisions
of
N.J.S.A.
40:55D-43(c).
applicability
maintenance
of
of
N.J.S.A.
"open
Despite
any
40:55D-43(b)
space,"
the
limitations
and
(c)
provisions
of
as
aforesaid
this
to
the
to
the
subparagraph
shall apply to all maintenance obligations of the Association as set
forth in this Declaration or otherwise. Should either the Association
or any of its members at any time fail to enforce the provisions
hereof, the Township upon thirty (30) days notice to the Association,
shall have the right to institute appropriate legal proceedings in
the name of the Association to effect such enforcement.
8.04.
herein
Severability.
contained,
or
any
Should
Article,
any
covenant
section,
or
restriction
subsection,
sentence,
clause, phrase or term of this Declaration be declared to be void,
invalid,
illegal
or
unenforceable,
for
any
reason,
by
the
adjudication of any court or other tribunal having jurisdiction over
the parties hereto and the subject matter hereof, such judgment shall
in
no
way
affect
the
other
provisions
hereof
which
are
hereby
declared to be severable, and which shall remain in full force and
effect.
8.05. Amendments. This Declaration may be amended at any
time after the date hereof by a vote or consent of at least twothirds (2/3) of the fully authorized membership of the Association.
Written notice of any such amendments to every Owner of the exact
language of the amendment shall be sent at least
-41-
thirty (30) days in advance of any meeting at which a vote is to be
cast or of the date when the consents must be received; and further
provided, that no amendment may be so effect which would permit (i)
any Owner to be exempted from the payment of any Common Expense
Assessment; (ii) the obligation or proportionate responsibility for
the payment of Common Expense Assessments to be changed; or (iii) the
modification of any easements or restrictions in Articles IV or V
hereof except as therein set forth; (iv) revocation of any of the
powers of attorney reserved herein or in the By-Laws; and further
provided, that in no event may the Common Property be conveyed to any
third person, firm or corporation nor may the rights of the Township,
be modified in any manner, without the express consent, by ordinance,
or otherwise of the governing body of the Township.
Despite the foregoing, Developer hereby expressly reserves
the right to amend and supplement this Declaration from time to time,
to (i) incorporate any or all future phases of the Development into
the
Property
pursuant
to
Article
II;
(ii)
modify
or
delete
the
restriction set forth in Section 2.02 with respect to any such future
portions as part of the Property; without obtaining the consent of
any Owners, any members, or Directors of the Association, or any
other parties with the exception of any governmental authority from
whom approval is required; provided, however, that in no event shall
any of the substantive provisions be changed so as to adversely and
materially affect the priority or validity of any Permitted First
Mortgage or the value of any
-42-
Home. In addition, Developer may, in Developer's sole discretion,
amend this Declaration prior to the conveyance of a Home to a Home
Owner other than Developer or any Builder. Developer shall not be
permitted to cast any votes held by him, for unsold lots, Homes or
interests for the purpose of amending the Declaration, By-Laws or any
other document in order to change the permitted use of a Home or to
reduce
the
Common
Property
or
facilities.
No
amendment
shall
be
effective until recorded in the Middlesex County Clerk's Office. This
paragraph is by way of supplement to and not in derogation of the
powers of amendment reserved to Developer pursuant to Article VIII
hereof. In the alternative, an amendment may be made by an agreement,
signed and acknowledged by all of the Owners including Developer, in
the manner required for the execution of a deed, and such amendment
shall
be
effective
when
recorded
in
the
Office
of
the
Clerk
of
Middlesex County.
8.06.
By-Laws
and
Administration.
Changes
in
Documents;
Power of Attorney. The administration of Common Property shall be by
the Association in accordance with the provisions of the Governing
Documents,
and
supplements
of
to
subsequently
be
any
the
other
agreements,
foregoing
required
which
by
any
documents,
may
be
amendments
duly
Institutional
adopted
Lender,
or
or
any
governmental agency having regulatory jurisdiction over the Property
or by any title insurance company selected by Developer to insure
title
to
any
Home(s).
Developer
hereby
reserves
for
itself,
its
successors and assigns, for a period of ten (10) years from the date
the first Home is conveyed to an individual
-43-
Purchasers,
the
right
purchasers,
Owners,
to
execute
mortgagees,
on
behalf
other
lien
of
all
holders
contract
or
parties
claiming a legal or equitable interest in the Property, any such
agreement,
described
documents,
documents
amendments
which
may
or
be
supplements
so
to
required
the
by
any
above
such
Institutional Lender, governmental agency or title insurance company;
provided, however, that no such agreement, documents, amendment or
supplement
which
adversely
affects
the
value
or
increases
the
financial obligations of the Owners or reserves any additional or
special privileges shall be made without the prior written consent of
the affected Owner and all owners of any mortgage(s) encumbering
same;
or
if
such
agreement,
documents,
amendment
or
supplement
adversely affects the priority or validity of any mortgage which
encumbers
any
Home,
without
the
prior
written
consent
of
such
mortgages.
The powers of attorney aforesaid are expressly declared and
acknowledged to be coupled with an interest in the subject matter
hereof and the same shall run with the title to any and all Homes and
be binding upon the heirs, personal representatives, successors and
assigns of any of the foregoing parties. Further, said powers of
attorney shall not be affected by the death or disability of any
principal and are intended to deliver all right, title and interest
of the principal in and to said powers. In furtherance of these
provisions, at the time of acceptance of a deed to any Home or at the
time of acceptance of any other instrument conveying any legal or
equitable interest in the
-44-
Property, each and every contract purchaser, Home Owner or occupant
or
holder
of
instrument
any
mortgage
which
will
or
other
expressly
liens,
grant,
agrees
ratify
to
and
execute
confirm
an
the
foregoing power of attorney.
8.07. Waiver. No provision contained in this Declaration
shall be deemed to have been abrogated or waived by reason of any
failure to enforce the same, irrespective of the number of violations
or breaches which may occur.
8.08. Rule Against Perpetuities. If any provisions of this
Declaration
or
the
By-Laws
shall
be
interpreted
to
constitute
a
violation of the rule against perpetuities, then such provision shall
be deemed to remain in effect until the death of the last survivor of
the now living descendants of George Herbert Walker Bush, former
President of the United States of America, plus twenty-one (21) years
thereafter.
8.09.
Ratification,
Confirmation
and
Approval
of
Agreements. The fact chat some or all of the officers, Directors,
Members or employees of the Association and the Developer may be
identical, and the face that the Developer or its nominees, have
heretofore
or
may
hereafter
Association
or
with
third
enter
parties,
into
will
not
agreements
with
the
any
such
invalidate
agreements and the Association, and its members, from time to time,
will
be
obligated
to
abide
by
and
comply
with
the
terms
and
conditions thereof. The purchase of a Home and the acceptance of the
Deed
therefor
by
any
party,
shall
constitute
the
ratification,
confirmation and approval by such Purchaser, his heirs, legal
-45-
representatives,
legality
of
agreements
successors
said
and
agreements
authorized
and
assigns,
or
said
permitted
by
of
the
propriety
agreement,
the
or
Planned
any
Real
and
other
Estate
Development Full Disclosure Act, N.J.S.A. 45:22A-21 et. seq. this
Declaration, the Certificate of Incorporation or the By-Laws.
8.10.
Protective
Provisions
for
the
Benefit
of
Eligible
Mortgage Holders.
8.11. "Eligible Mortgage Holder" shall mean or refer to any
Mortgage Holder holding a First Mortgage which has given written
notice to the Association in the manner provided in Section 8.14 of
this Declaration of its desire to have notice of those matters which
are
the
subject
of
Sections
8.02
through
8.06
and
8.09
of
this
Declaration.. Any such notice must state the name of the Mortgage
Holder and the address to which notices to be sent to it should be
directed
and
must
sufficiently
identify
the
Home
for
which
the
Eligible Mortgage Holder is the Mortgage Holder of a First Mortgage.
It shall be the obligation of the Eligible Mortgage Holder to keep
the Association informed of any change of address to which required
notices
should
be
sent.
The
Association
shall
be
deemed
to
have
fulfilled its obligations hereunder and an Eligible Mortgage Holder
shall be deemed to have been given any required notice hereunder so
long as the Association can establish that it served the notice in
question
in
the
manner
provided
herein
directed
to
the
Eligible
Mortgage Holder at the last address given by it to the Association in
the manner provided herein. The manner is which the Association shall
give the notices required to notice
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mortgagees pursuant to this Article VIII shall be via United States
Postal Service by certified mail, with return receipt requested and
sufficient prepaid postage affixed thereto, addressed to the last
address of the Eligible Mortgage Holder identified to the Association
as provided herein.
8.12. Prior Written Approval of 51V of Eligible Mortgage
Holders. The prior written approval of a least fifty-one percent
(51%) of the Eligible Mortgage Holders is required for any material
amendment to this Declaration or to the By-Laws or Certification of
Incorporation
including,
but
not
limited
to,
any
amendment
which
repairs
and
would change any provisions relating to:
a.
voting rights;
b.
reserves
c.
responsibility for maintenance and repairs;
d.
reallocation of interest in the Common Property
for
maintenance,
replacement;
or rights to their use;
e.
boundaries of any Home;
f.
convertibility of a Home into Common Property or
g.
expansion or contraction of the Property, or the
vice versa;
addition, annexation or withdrawal of land to or from the Property;
h.
insurance or fidelity bonds; i. leasing of Home
-47-
j.
imposition
of
any
restrictions
upon
a
Home
Owner's right to sell or transfer his or her Home;
k.
a decision by the Association to establish self-
management rather than professional management;
1.
damage,
restoration
destruction
or
or
repair
condemnation)
in
of
a
the
property
manner
other
(after
than
the
specified in this Declaration;
m.
any
action
to
terminate
the
Declaration
after
substantial damage or condemnation occurs; or
n.
any
provisions
that
expressly
benefit
Eligible
Mortgage Holders.
8.13. Prior Written Approval of 67% of Eligible Mortgage
Holders. The prior written approval of at least sixty-seven percent
(67%)
of
the
Eligible
Mortgage
Holders
is
required
before
the
effectuation of any decision by the Home Owners to terminate the
Declaration
for
reasons
other
than
substantial
destruction
or
condemnation of the Property.
8.14.
Implied
Approval
of
Eligible
Mortgage
Holders
Assumed. In spite of the requirements of prior written approval of
Eligible Mortgage Holders provided in Sections 9.02 and 9.03 of this
Declaration, provided that the Association serves notice on Eligible
Mortgage Holders of those matters which are subject of Sections 8.12
and 8.13 of this Declaration in the manner provided in Section 8.11
of this Declaration, the Association may assume implied approval of
any Eligible Mortgage Holder failing to submit a written response to
any notice given within thirty (30) days
-48-
after it receives such notice as provided herein and so long as the
notice
was
delivered
by
certified
mail
as
indicated
by
a
signed
return receipt.
8.15.
Notice
of
Non-Material
Amendment.
Any
Eligible
Mortgage Holder who requests same shall be entitled to receive thirty
(30) days advance notice from the Association of any proposed nonmaterial amendment to the Declaration, the By-Laws or the Certificate
of Incorporation permitted by same, which notice shall include a copy
of the proposed change; and any Eligible Mortgage Holder shall be
deemed to have implicitly approved such change as proposed unless it
states in a written response to the Association its objections or
comments relative to such proposed change.
8.16.
Notice.
Any
Eligible
Mortgage
Holder
shall
be
entitled to timely written notice of:
a.
any
condemnation
or
casualty
loss
that
affects
either a material portion of the Property or the Home securing the
Eligible Mortgage Holder's mortgage; and no Home Owner or other party
shall have priority over such Eligible Mortgage Holder with respect
to
the
distribution
to
such
of
Home(s)
of
the
proceeds
of
any
condemnation award of settlement in the event of condemnation or with
respect to the distribution to such Home(s) of any insurance proceeds
in the event of casualty loss; and
b. any sixty (60) day delinquency in the payment of
Association Dues, installments or other assessments or charges
-49-
owed to the Association by the Home Owner of any Home on which the
Eligible Mortgage Holder holds a mortgage; and
c. a lapse, cancellation or material modification of
any insurance policy or fidelity bond maintained by the Association;
and
d. any proposed action that requires the consent of a
specified percentage of Eligible Mortgage Holders.
The holder, insurer or guarantor of the Mortgage on any Home must
send a written request to the Association stating both its name and
address and the address of the unit on which it holds the Mortgage to
be entitled to receive the information discussed in subparagraphs (a)
through (d) of this Section 8.16.
8.17.
No
Partition.
No
Home
in
the
Development
may
be
partitioned or subdivided without the prior written approval of an
Eligible Mortgage Holder for such Home.
8.18.
Common
Expense
Lien
Subordinate.
Any
lien
the
Association may have on any Home in the Development for the payment
of Association Dues attributable to such Home is subordinate to the
lien or equivalent security interest of any first mortgage on the
Home held by an Eligible Mortgage Holder and recorded prior to the
date any such Association Dues became due.
8.19. Inspection of Records. Any Eligible Mortgage Holder
shall upon written request, (a) be permitted to inspect the books and
records
of
the
Association
receive
an
annual
audited
during
normal
financial
business
statement
of
hours
the
within ninety (90) days following the end of any fiscal
-50-
and
(b)
Association
year
of
the
Association.
The
Association
shall
maintain
current
copies of the Declaration, Certificate of Incorporation, By-Laws and
Rules and Regulations, and any respective amendments thereto, as well
as its own books, records and financial statements. These documents
shall be available for inspection by owners and Permitted Mortgage
Holders.
8.20.
Notice
of
Meetings.
Any
Eligible
Mortgage
Holder
shall receive written notice of all meetings of the Association and
be
permitted
to
designate
a
representative
to
attend
all
such
meetings.
8.21. Liability for Association Dues. Any Eligible Mortgage
Holder that obtains title to a Home as a result of foreclosure, or by
deed or assignment in lieu of foreclosure, or any purchaser in a
foreclosure sale, or their respective successors and assigns, is not
liable for the share of Association Dues or other assessments by the
Association pertaining to such Home or chargeable to the former Home
Owner which became due prior to acquisition of title. Such unpaid
share of Association Dues and other assessments shall be deemed to be
Association
Dues
collectible
from
all
of
the
remaining
Owners
including such acquirer, his successors and assigns.
8.22. Management Agreements. Any management agreement will
be terminable by the Association with or without cause upon thirty
(30) days prior written notice thereof, and the term of any such
agreement shall not exceed one (1) year.
-51-
8.23.
Common Expense Default. Despite the absence of
any express provision to such effect in the mortgage instrument, in
the event that there is any default in the payment of any installment
of
Association
special,
any
Dues
with
Eligible
respect
Mortgage
to
any
Holder
Home,
holding
either
a
regular
mortgage
or
which
encumbers such Home shall be entitled to declare such mortgage in
default in the same manner that is permitted by such mortgage with
respect to any default in the payment of real estate taxes.
8.24.
Notice-Homeowners
Association.
Unless
a
particular document permits or requires a particular notice to be
given or served in a different manner, notice permitted or required
to be given to or served upon the Association under the Governing
Documents shall be deemed to have been properly given to or served
upon the Association when same is mailed via the United States Postal
Service
by
certified
mail,
with
return
receipt
requested
and
sufficient prepaid postage affixed hereto, addressed to the current
corporate Registered Agent of the Association as reflected in the
official records of the New Jersey Secretary of State as of the date
such notice is mailed.
ARTICLE IX
SPECIAL DEVELOPER'S RIGHTS
9.01.
Ratification.
Confirmation
and
Approval
of
Agreements. The fact that some or all of the Officers, Trustees,
Members or employees of the Association and the Developer may be
identical, and the fact that the Developer or its nominees have
-52-
heretofore
or
may
hereafter
Association
or
with
third
enter
parties,
into
will
agreements
not
invalidate
with
the
any
such
agreements and the Association and its Members, from time to time,
will
be
obligated
to
abide
by
and
comply
with
the
terms
and
conditions thereof. The purchase of a Home, and the acceptance of the
Deed
therefor
confirmation
by
and
representatives,
legality
of
any
party,
approval
by
successors
said
shall
constitute
the
ratification,
such
purchaser,
his
heirs,
and
agreements
assigns,
or
said
of
the
agreement,
legal
propriety
or
any
and
other
agreements authorized and permitted by the New Jersey Condominium
Act, this Declaration, the Certificate of Incorporation or the ByLaws.
9.02. Rights Reserved to Developer. Despite anything herein
to the contrary, or in the Certificate of Incorporation or By-Laws of
the
Association,
the
Developer
hereby
reserves
for
itself,
its
successors and assigns, for so long as it owns one or more Homes in
the Development, the right to sell, lease, mortgage, sublease or
otherwise dispose of any unsold Homes or undeveloped lands within the
Development.
9.03. Transfer of Special Developer's Rights. No special
rights created or reserved to the Developer under this Declaration
("Special
Developer
Rights")
may
be
transferred
except
by
an
instrument evidencing the transfer recorded in the Office of the
Clerk of Middlesex County, New Jersey. The instrument shall not be
effective unless executed by the transferee.
-53-
9.04. Liability of Transferor. Upon transfer of any such
Special
Developer
Right,
the
liability
of
the
transferor
is
as
follows:
a.
A transferor is not relieved of any obligation or
liability arising before the transfer and remains liable for warranty
obligations imposed upon him. Lack of privity does not deprive any
Home Owner of standing to bring an action to enforce any obligation
of the transferor.
b.
If
a
transferor
retains
any
such
Special
Developer Right, or if a successor to any such Special Developer
Right is an affiliate of the Developer, the transferor is subject to
liability for all obligations and liabilities imposed on a Developer
by law or by the Declaration, arising after the transfer, and is
jointly and severally liable with the successor for the liabilities
and obligations of the successor which relate to the Development.
c.
A
transferor
who
retains
no
such
Special
Developer Rights has no liability for any act or omission or any
breach
of
a
contractual
or
warranty
obligation
arising
from
the
exercise of any such Special Developer Right by a successor Developer
who is not an affiliate of the transferor.
9.05.
provided
in
a
Transfer
mortgage
of
Rights
instrument
or
Requested.
deed
of
Unless
trust,
in
otherwise
case
of
foreclosure of a mortgage, sale by a trustee under a deed of trust,
or sale under any bankruptcy or receivership proceedings, of any
Homes owned by Developer in the Development, a person acquiring title
to all the Homes being foreclosed or sold, but only upon his
-54-
request, succeeds to all such Special Developer Rights, or only to
any such Special Developer Rights to maintain models, sales offices
and signs. The judgment or instrument conveying title shall provide
for transfer of only the Special Developer Rights requested.
9.06.
Foreclosure.
Bankruptcy,
Receivership.
Upon
foreclosure, sale by a trustee under a deed of trust, or sale under
any
bankruptcy
or
receivership
proceedings,
of
all
Homes
in
the
Development owned by the Developer:
a.
The
Developer
ceases
to
have
any
such
Special
Developer Rights; and
b.
The period of Developer control terminates unless
the judgment or instrument conveying title provides for transfer of
all such Special Developer Rights to a successor to Developer.
9.07.
Liability
of
Successors.
The
liabilities
and
obligations of persons who succeed to all Special Developer Rights
are as follows:
a.
A successor to all such Special Developer Rights
who is an affiliate of the Developer is subject to all obligations
and
liabilities
imposed
on
any
Developer
by
law
or
by
the
Declaration.
b.
A successor to all such Special Developer Rights,
other than a successor described in paragraphs (c) or (d) hereof who
is not an affiliate of Developer, is subject to all obligations and
liabilities imposed upon Developer by law or the Declaration, but he
is not subject to liability for
-55-
misrepresentations or warranty obligations on improvements made by
any previous Developer or made before the Development was created, or
for a breach of fiduciary obligation by any previous Developer.
c.
A successor to only a Special Developer Right to
maintain models, sales offices and signs, if he is not an affiliate
of Developer, may not exercise any other Special Developer Right, but
he is not subject to any liability or obligation as a Developer.
d.
A successor to all Special Developer Rights who
is not an affiliate of Developer and who succeeded to those rights
pursuant to a deed in lieu of foreclosure or a judgment or instrument
conveying title to Homes under Section 9.05 aforesaid, may declare
his intention in a recorded instrument to hold those rights solely
for transfer to another party. Thereafter, until transferring all
such Special Developer Rights to any person acquiring title to any
Home
owned
permitting
by
the
exercise
successor,
of
all
or
those
until
rights,
recording
that
an
instrument
successor
may
not
exercise any of those rights other than the right to control the
Board for the duration of any period of Developer control, and any
attempted exercise of those rights is void. So long as a successor
Developer may not exercise Special Rights under this subparagraph he
is not subject to any liability or obligation as a Developer other
than
liability
for
the
successor's
acts
and
omissions
under
the
Declaration.
9.08. Ineffectiveness. Nothing in this Article subjects any
successor to a Special Developer Right to any claims against
-56-
or
other
obligations
of
a
transferor
other
than
claims
and
obligations arising under the Declaration.
9.09. Activities. Developer may conduct real estate resale
activities, promotion of Developer's other projects, sale of interior
furnishings and other activities related to Developer's within or
upon any portion of the Development.
IN WITNESS WHEREOF, Developer has caused these presents to
be duly executed by its partners and proper officers, respectively,
this 14 day of December, 1994.
ATTEST:
U.S. HOME CORPORATION, Developer
-57-
STATE OF NEW JERSEY )
) SS:
COUNTY OF Monmouth )
BE IT REMEMBERED, that on this 14th day of December, 1994,
Paul Rempe personally came before me and this person acknowledged
under oath, to my satisfaction, that:
(a)
this person is the Vice President of the corporation
named in the attached document;
(b)
this person is the attesting witness to the signing of
this document by the proper corporate officer who is
Gregory A. Snyder, the Division President of the
corporation;
(c)
this document was signed and delivered by the
corporation as its voluntary act duly authorized by a
proper resolution of its Board of Directors;
(d)
this person knows the proper seal of the corporation
which was affixed to this document; and
(e)
this person signed this proof to attest to the truth
of these facts.
Signed and sworn to before me
on this 14th day of December, 1994.
-58-
EXHIBIT
A Metes and Bounds Description of Development
DESCRIPTION
TOWNSHIP OF MONROE, MIDDLESEX COUNTY, N.J.
PARCEL ONE
TAX MAP DATA:
BLOCK
LOT
48.23
1
48.24
1
48.25
1
48.26
2
48.30
1
48.35
39&40
48.40
14
BEGINNING at a point on the northerly right of way line of Prospect Plains-Hoffman Station Road at
the intersection of same with the easterly line of Lot 1 Block 48.26 as shown on that certain map entitled
"WHITTINGHAM, TOWNSHIP OF MONROE, MIDDLESEX COUNTY, NEW JERSEY, ENTIRE
TRACT MAP - SECTION I," prepared by Henderson and Bodwell Consulting Engineers, and Tiled in
the Middlesex County Clerk's office on August 21, 1986 as Map No. 5021 File No. 974. thence
1.
Along said easterly line of Lot 1 Block 48.26, North 06 degrees 27 minutes 21 seconds East,
317.69 feet, thence along the property line of said Lot 1 Block 48.26 the following two (2)
courses:
2.
North 82 degrees 29 minutes 39 seconds West, 184.50 feet; thence
3.
South 08 degrees 53 minutes 23 seconds West, 292.89 feet to the aforementioned northerly right
of way line of Prospect Plains-Hoffman Station Road; thence along said northerly line to the
intersection with the easterly right of way line of Jamesburg Half-Acre Road along the following
five (5) courses:
4.
5.
6.
North 75 degrees 56 minutes 58 seconds West, 169.09 feet to a point of curvature; thence
7.
Along the arc of a curve to the right having a radius of 40.00 feet, an arc length of 51.00 feet, a
central angle of 73 degrees 02 minutes 55 seconds; thence
8.
South 87 degrees 05 minutes 57 seconds West, 19.50 feet to the aforementioned easterly right of
way line of Jamesburg Half-Acre Road; thence along said easterly line for the following nine (9)
courses;
9.
10.
11.
North 06 degrees 06 minutes 49 seconds East 88.28 feet; thence
12.
North 18 degrees 51 minutes 53 seconds East 135.00 feet; thence
13.
North 24 degrees 38 minutes 22 seconds East, 1137.12 feet; thence
14.
15.
16.
17.
North 05 degrees 35 minutes 20 seconds East, 121.31 feet to the southwesterly corner of Lot 11
Block 48.40; thence along the southerly line of said lot the following course:
18.
North 83 degrees 01 minutes 29 seconds East 982.16 feet; thence along the easterly property line
of Lot 11 and Lot 12 Block 48.40 the following course:
19.
North 08 degrees 13 minutes 31 seconds West, 369.04 feet; thence along the northerly property
line of Lot 12 Block 48.40 the following course:
20.
South 82 degrees 15 minutes 49 seconds West 897.06 feet to the aforementioned easterly right of
way line of Jamesburg-Half Acre Road; thence along said easterly line the following two (2)
courses:
21.
22.
North 00 degrees 03 minutes 22 seconds West, 959.72 feet to the southwesterly corner of Lot
11.01 Block 48; thence along the southerly line of Lot 11.01 and 11.02 Block 48 the following
course:
23.
South 82 degrees 12 minutes 32 seconds East, 1496.02 feet to the northerly line of Lot 1 Block
48.07; thence along the westerly line the following course:
61
24.
South 08 degrees 27 minutes 28 seconds West, 58.68 feet to the westerly right of way line of
Burnside Street; thence along said westerly line the following course:
25.
South 08 degrees 27 minutes 28 seconds West, 27.75 feet to the northerly comer of Lot 13 Block
48.40, thence along the common lines of Lot 13 and Lot 14 Block 48.40 the following three (3)
courses:
26.
27.
South 00 degrees 42 minutes 32 seconds East, 801.24 feet; thence
28.
North 88 degrees 47 minutes 28 seconds East, 774.71 feet to the westerly line of Lot 1 Block
48.04; thence along said westerly line the following course:
29.
South 08 degrees 48 minutes 05 seconds East, 97.16 feet to the northerly right of way line of
Sheridan Street, thence along the westerly right of way line the following course:
30.
South 15 degrees 31 minutes 56 seconds East, 50.64 feet to the southerly right of way line;
thence along the westerly line of Lot 1 and Lot 33 Block 48.03 the following three (3) courses:
31.
32.
33.
Sherman Street; thence along the westerly right of way line the following three (3) courses:
34.
35.
36.
thence along the westerly line of Lot 1, Lot 24 and Lot 25 Block 48.02 the following three (3)
courses:
37.
38.
39.
Grant Street; thence along the westerly right of way line the following course:
40.
thence along the westerly line of Lot 1, Block 48.01 the following course:
62
41.
South 42 degrees 37 minutes 02 seconds East, 146.08 feet to the northwesterly comer of Lot 2,
Block 48.44; thence along the westerly line of Lot 2 and Lot 3, Block 48.40 the following
course:
42.
48.40; thence along said northerly line the following course:
43.
South 81 degrees 56 minutes 29 seconds West, 43.92 feet; thence along the westerly line of Lot 5
and Lot 6, Block 48.40 the following course:
44.
South 12 degrees 33 minutes 31 seconds East, 135.00 feet; thence along the southerly line of Lot
6 Block 48.40 the following course:
45.
North 81 degrees 56 minutes 29 seconds East, 523.45 feet to the westerly right of way line of
Jamesburg-Perrineville Road; thence along said westerly line the following course:
46.
South 12 degrees 34 minute 17 seconds East, 134.88 feet; thence along the common line of Lot 7
and Lot 14, Block 48.40 the following three (3) courses.
47.
South 82 degrees.09 minutes 41 seconds West, 523.15 feet; thence
48.
49.
North 84 degrees 33 minutes 39 seconds East, 529.28 feet to the aforementioned westerly ' right
of way line of Jamesburg-Perrineville Road; thence along said westerly line the following two
(2) courses:
50.
51.
South 12 degrees 01 minutes 33 seconds East, 272.62 feet; thence along the northerly line of Lot
8 and Lot 10. Block 48.40 the following two (2) courses:
52.
53.
South 85 degrees 59 minutes 00 seconds West, 571.76 feet; thence along the westerly line of Lot
10 Block 48.40 and Schoolhouse Road right of way the following course:
54.
48.42; thence along said northerly line the following three (3) courses:
55.
Along the arc of a curve to the right having a radius 349.76 feet an arc length of 254.45 ' feet a
central angle of 41 degrees 40 minutes 55 seconds, a chord which bears North 73 degrees 10
minutes 33 seconds West distant 248.87 feet to a point of tangency; thence
56.
57.
Along the arc of a curve to the left having a radius of 456.00 feet, an arc length of 132.80 feet, a
central angle of 16 degrees 41 minutes 09 seconds to the westerly line of Lot 2 Block 48.42;
thence along said westerly line the following course:
58.
South 20 degrees 58 minutes 45 seconds West, 36.00 feet to the westerly line of Lots 1 thru 8
Block 48.41; thence along said westerly line the following three (3) courses:
59.
South 16 degrees 46 minutes 35 seconds West, 81.96 feet; thence
60.
61.
South 12 degrees 56 minutes 55 seconds East, 434.00 feet to the southerly line of Lots 8 thru 15
Block 48.41; thence along said southerly line the following six (6) courses:
62.
63.
64.
65.
66.
67.
South 45 degrees 56 minutes 55 seconds East, 218.00 feet to the westerly line of Lots 15 thru 33
Block 48.41; thence along said westerly line the following five (5) courses:
68.
69.
70.
71.
South 08 degrees 57 minutes 55 seconds West, 95.12 feet, thence
72.
South 33 degrees 50 minutes 19 seconds West, 119.86 feet to a westerly line of Lot 2 and Lot 3
Block 48.42 and Lot 1 Block 48.43; thence along said westerly line the following two (2)
courses:
73.
64
74.
South 21 degrees 05 minutes 14 seconds West, 117.90 feet to the northerly line Lot 1 Block
48.43 and Lot 38 Block 48.35; thence along said northerly line the following four (4) courses:
75.
76.
77.
78.
North 57 degrees 56 minutes 40 seconds West, 174.40 feet to a easterly line of Lot 37 Block
48.35; thence along said easterly line the following course:
79.
minutes 14 seconds East distant 128.31 feet to the southerly line of Lots 1 thru 13 Block 48.35;
thence along said southerly line the following four (4) courses:
80.
81.
82.
83.
North 89 degrees 43 minutes 48 seconds East, 397.00 feet to the easterly line of Lot 13 and Lot
37 Block 48.35; thence along said easterly line the following course:
84.
North 20 degrees 23 minutes 54 seconds East, 134.42 feet to a northerly line of Lot 37 Block
48.35; along said northerly line the following course:
85.
Along the arc of a curve to the left having a radius of 368.00 feet, an arc length of 83.12 feet,
minutes 21 seconds West, distant 82.94 to the easterly line of Lots 29 thru 35 Block 48.35;
thence along said easterly line the following five (5) courses:
86.
North 11 degrees 24 minutes 01 seconds West. 391.79 feet; thence
87.
88.
89.
90.
North 25 degrees 02 minutes 28 seconds West, 100.00 feet to the southerly line of Lots 21 thru
29 Block 48.35; thence along said southerly line the following three (3) courses:
65
91.
92.
93.
South 64 degrees 29 minutes 28 seconds West, 297.28 feet to the westerly line of Lois 14 thru 21
Block 48.35, thence along said westerly line the following two (2) courses:
94.
95.
South 07 degrees 13 minutes 35 seconds East. 435.63 feet to a northerly line of Lot 37 Block
48.35; then along said northerly line the following five (5) courses:
96.
South 85 degrees 00 minutes 00 seconds West, 156.02 feet to the point of curvature; thence
97.
Along the arc of a curve to the left having a radius of 518.00 feet; an arc length of 62.03 feet, a
central angle of 06 degrees 51 minutes 41 seconds to a point of tangency; thence
98.
South 78 degrees 08 minutes 19 seconds West, 77.46 feet to a point of curvature; thence
99.
central angle of 87 degrees 07 minutes 50 seconds; thence
100.
South 75 degrees 16 minutes 09 seconds West, 68.00 feet to a westerly line of aforementioned
Lot 37 Block 48.35; thence along said westerly line the following seven (7) courses:
101.
central angle of 29 degrees 18 minutes 52 seconds, to a point of tangency; thence
102.
103.
Along the arc of a curve to the right having a radius of 50.00 feet, an arc length of 44.48 feet a
104.
105.
central angle of 39 degrees 02 minutes 07 seconds, to a point of tangency; thence
106.
66
107.
North 79 degrees 32 minutes 04 seconds West, 111.40 feet to the aforementioned northerly right
of way line of the aforementioned Prospect Plains-Hoffman Station Road; thence along said
northerly line the following four (4) courses:
108.
109.
110.
North 70 degrees 24 minutes 58 seconds West, 100.00 feet to point of curvature; thence
111.
central angle of 01 degrees 10 minutes 08 seconds to the point of BEGINNING.
Containing 344.258 acres, more or less.
PARCEL TWO
LOT 1 BLOCK 48.44
Beginning at a point on the northerly right of way line of Prospect Plains-Hoffman Station Road
at the intersection of same with a easterly line of Lot 1 Block 48.43 as shown on that certain map
entitled "FINAL PLAT-SECTION 2 - WHITTINGHAM SITUATED IN MONROE TOWNSHIP.
MIDDLESEX COUNTY, NEW JERSEY", prepared by Henderson and Bodwell Consulting Engineers,
and filed in the Middlesex County Clerk's office October 19, 1987 as Map No. 5171 File No. 975;
thence
1.
Along said easterly line of Lot 1 Block 48.43 North 13 degrees 14 minutes 59 seconds East,
200.00 feet to the southerly line of Lots 1, 2, and 6 Block 48.42; thence along said southerly line
the following four (4) courses;
2.
3.
North 56 degrees 14 minutes 59 seconds Ea^t, 250.00 feet; thence
4.
5.
North 63 degrees 14 minutes 59 seconds East, 349.16 feet to the westerly right of way line of
Jamesburg-Perrineville Road; thence along said westerly line the following five (5) courses:
6.
South 02 degrees 51 minutes 28 seconds East 219.68 feet to a point of curvature; thence
67
7.
8.
South 15 degrees 31 minutes 42 seconds West 459.42 feet to a point of curvature; thence
9.
Along the arc of a curve to (he left having a radius of 633.13 feet, an arc length of 188.45 feet; a
10.
South 01 degrees 31 minutes 33 seconds East, 32.04 feet; to the aforementioned northerly right
of way line of Prospect Plains-Hoffman Station Road; thence along said northerly right of way
line the following five (5) courses:
11.
12.
13.
North 54 degrees 20 minutes 08 seconds West 84.95 feet to a point of curvature; thence
14.
15.
North 76 degrees 45 minutes 01 seconds, 188.01 feet to the point of BEGINNING.
TOTAL AREA = 357.049 Acres, more or less.
68
PARCEL THREE
LAKEVIEW TERRACE AREA
All that certain lot, piece or parcel of land, with the
buildings and improvements thereon erected, situate, lying and being
in the Township of Monroe, County of Middlesex, State of New Jersey:
Block 48, Lot 4.01, Lots 8 and 9;
Block 48.01, Lots 1-3;
Block 48.02, Lots 1, 2, 4-6, 24, 25, 27-33;
Block 48.03, Lots 1-7, 10-15, 33, 34, 36-48;
Block 48.04, Lots 1-14, 16, 34-47;
Block 48.05, Lots 1-13, 31-33, 35-38, 40, 41;
Block 48.06, Lots 1-7, 26-32;
Block 48.07, Lots 1-5; and
Block 48.11, Lot 20.
69
EXHIBIT A-1
Phase I Description of the Property by Lot and Block
A-1
PHASE I DESCRIPTION OF THE PROPERTY
BY LOT AND BLOCK
The following is the description of Phase I:
Block 48.27, Lots 1-22;
Block 48.31, Lots 1-22;
Block 48.32, Lots 1-23;
71
EXHIBIT B
Development Plan
72
EXHIBIT B-1
Final Plat
EXHIBIT C
Certificate of Incorporation
of
Greenbriar at Whittingham Community Association, Inc.
CERTIFICATE OF INCORPORATION
OF
DATED: August 17 1994
File and Return to:
P.O. Box 5600
Metro Corporate Campus I
ATTN: Wendell A. Smith, Esq.
OF
The undersigned, who is of full age, in order to form a corporation
pursuant to the provisions of the New Jersey Nonprofit Corporation Act, Title
ISA of the New Jersey Statutes Annotated, does hereby certify:
ARTICLE I
Name
The name of the corporation is "GREENBRIAR AT WHITTINGHAM COMMUNITY
ASSOCIATION, INC.," hereinafter called the "Association".
ARTICLE II
Principal Office
The principal office of the Association is located at 800 West Main
Street, Freehold, New Jersey 07728.
ARTICLE III
Purpose and Powers of the Association
Wendell A. Smith, Esq., whose address is Metro Corporate Campus I,
P.O. Box 5600, Woodbridge, New Jersey 07095 and whose location is 99 Wood
Avenue South, Iselin, New Jersey 08830, is hereby appointed the initial
registered agent of this Association.
ARTICLE IV
This Association does not contemplate pecuniary gain or profit to
the members thereof, and the specific purposes for which it is formed are to
provide for the maintenance, preservation and control of all lawn areas,
streets and all open space detention basins within that certain tract of land
subjected to that certain Declaration of Covenants, Easements and Restrictions
for Greenbriar at Whittingham, and any supplements or amendments thereto
recorded or to be recorded in the Office of the Clerk of Middlesex County, and
to promote the health, safety and welfare of the residents within the above
described property and for these purposes:
(a)
To exercise all of the powers and privileges and to
perform all of the duties and obligations of the
Association as set forth in the aforesaid Declaration and
By-Laws of the Association, said Declaration and By-Laws
being incorporated herein as if set forth at length;
(b)
To fix, levy, collect and enforce payment by any lawful
means of all charges or assessments pursuant to the terms
of said Declaration and By-Laws of the Association; to
pay all expenses in connection therewith and all office
80
and other expenses incident to the conduct of the
business of the Association, including all licenses,
taxes or governmental charges levied or imposed against
the property of the Association;
(c)
To acquire (by gift, purchase, or otherwise) , own, hold,
improve, build upon, operate, maintain, convey, sell,
lease, transfer, dedicate for public use or otherwise
dispose of real or personal property in connection with
the affairs of the Association;
(d)
To borrow money, to mortgage, pledge, deed in trust, or
hypothecate any or all of its real or personal property
as security for money borrowed or debts incurred; and
(e)
To have and to exercise any and all powers, rights and
privileges which a corporation organized under the
Nonprofit Corporation Law of the State of New Jersey by
law may now or hereafter have or exercise.
ARTICLE V
Membership
Every person or entity who is a record owner of a fee interest in
any dwelling unit which is subject to the Declaration and qualifies in
accordance with the By-Laws shall be a member of the Association. The foregoing
is not intended to include persons or entities who hold an interest merely as
security for the performance of an obligation. Ownership of any such unit shall
be the sole qualification for membership. Upon termination of the interest of
the owner, his membership shall automatically terminate and shall be
transferred and shall inure to the new owner succeeding him in interest.
ARTICLE VI
Board of Directors
The affairs of this Association shall be managed by a Board of
Directors. The initial Board of Directors shall be composed of three (3)
persons who need not be members of the Association. The number of Directors may
be changed pursuant to the By-Laws of the Association. The names and addresses
of the persons who are to act in the capacity of Directors until the selection
of their successors are:
Gregory A. Snyder
800 West Main Street
Freehold, New Jersey 07728
W. George Breen
Paul Rempe
-281
The method of electing Directors shall b« «et forth in the By-Laws of the
Association.
ARTICLE VII
Distribution of Assets
Upon dissolution, the assets of the Association shall be distributed
in the same basis as the respective proportionate responsibility expenses of
the members is determined.
ARTICLE VIII
Duration
The Association shall exist perpetually.
ARTICLE IX
Amendments
Amendment of this Certificate shall require the assent of seventyfive (75%) percent of the members.
IN WITNESS WHEREOF, for the purpose of forming this nonprofit
corporation under the laws of the State of New Jersey, the undersigned, the
Incorporator
of
this
Association,
has
executed
this
Certificate
of
Incorporation this 17th day of August, 1994.
STATE OF NEW JERSEY
COUNTY OF Monmouth
:
: SS .:
:
BE IT REMEMBERED, that on this 17th day of August, 1994, before me,
the subscriber, a Notary Public of the State of New Jersey, personally appeared
Donald R. Bompensa, who, I am satisfied is the person named in and who executed
the within Instrument, and thereupon he acknowledged that he signed, sealed and
delivered the same as his act and deed, for the uses and purposes therein
expressed.
-3-
EXHIBIT D
By-Laws
of
Greenbriar at Whittingham Community Association, Inc.
83
BY-LAWS
OF
DATED: December 14, 1994
TABLE OF CONTENTS
FOR
BY-LAWS OF GREENBRIAR AT WHITTINGHAM COMMUNITY ASSOCIATION, INC.
Page
ARTICLE I
NATURE OF BY-LAWS AND DEFINITIONS .......................
1.01. Purpose.......................................
1.02. Definitions ..................................
1.03. Fiscal Year...................................
1.04. Principal Office .............................
1
1
1
1
1
ARTICLE II
MEMBERSHIP
2.01.
2.02.
2.03.
2.04.
2.05.
2.06.
2.07.
2.08.
1
1
2
2
2
3
3
4
4
AND VOTING RIGHTS ............................
Membership....................................
Associate Members ............................
Change in Membership .........................
Rights of Membership .........................
Suspension of Rights .........................
Voting Rights ................................
Interest in the Common Property ..............
Contribution to Capital ......................
ARTICLE III
MEETINGS OF MEMBERS .....................................
3.01. Place of Meetings.............................
3.02. Annual Meeting................................
3.03. Special Meetings .............................
3.04. Notice of Meeting.............................
3.05. Quorum and Adjourned Meeting .................
3.06. Organization .................................
3.07. Voting on Questions ..........................
3.08. Voting in Elections of Directors .............
3.09. Ballot by Mail................................
3.10. Proxies and Absentee Ballots .................
3.11. Member in Good Standing.......................
3.12. Judges........................................
3.13. Order of Business.............................
5
5
5
6
6
7
8
8
8
9
10
11
12
12
ARTICLE IV
BOARD OF DIRECTORS.......................................
4.01. Qualifications................................
4.02. Number........................................
4.03. Removal of Members of the Board...............
4.04. Vacancies.....................................
4.05. Term of Office................................
13
13
15
16
17
18
-i-
Page
ARTICLE V
TRANSACTION OF BUSINESS BY THE BOARD OF DIRECTORS........
5.01. Express and Implied Powers and Duties.........
5.02. Developer's Protective Provisions.............
5.03. Meeting of the Board; Notices; Waiver
of Notice.....................................
5.04. Quorum and Adjourned Meetings.................
5.05. Joinder in Meetings by Approval of
Minutes.......................................
5.06. Non-Waiver....................................
5.07. Consent in Lieu of Meeting and Vote...........
5.08. Meetings Open to Owners; Notice...............
ARTICLE VI
POWERS AND DUTIES OF BOARD OF DIRECTORS .................
6.01. General Powers and Privileges.................
6.02. Duties and Responsibilities...................
ARTICLE VII
FISCAL MANAGEMENT .......................................
7.01. Common Expense Assessments....................
7.02. Determination of Common Expenses..............
7.03. Disbursements.................................
7.04. Depositories..................................
7.05. Accounts......................................
7.06. Reserves......................................
7.07. Exemption from Payment of Common Expenses.....
7.08. Notice........................................
7.09. Acceleration of Assessment Installment
Upon Default..................................
7.10. Interest and Counsel Fees.....................
7.11. Power of Attorney to Permitted Mortgage
Holder........................................
7.12. Annual Audit..................................
7.13. Examination of Books..........................
7.14. Fidelity Bonds................................
ARTICLE VIII
OFFICERS.................................................
8.01. Designation...................................
8.02. Election of Officers..........................
8.03. Removal of Officers...........................
8.04. Duties and Responsibilities of Officers.......
8.05. Other Duties and Powers.......................
8.06. Eligibility of Directors......................
-ii-
19
19
19
21
22
23
23
23
24
25
25
30
39
39
40
40
40
40
43
44
44
45
46
48
48
49
49
49
49
50
50
50
51
51
Page
ARTICLE IX
COMPENSATION, INDEMNIFICATION AND EXCULPABILITY OF
OFFICERS, DIRECTORS AND COMMITTEE MEMBERS ..........
9.01. Compensation..................................
9.02. Indemnification...............................
9.03. Exculpability.................................
52
52
52
53
ARTICLE X
COVENANTS COMMITTEE .....................................
10.01. Purpose......................................
10.02. Powers.......................................
10.03. Authority....................................
53
53
54
57
ARTICLE XI
OTHER COMMITTEE..........................................
11.01. Committees...................................
11.02. Audit Committee..............................
11.03. Subcommittees................................
11.04. Member Complaints............................
57
57
58
58
58
ARTICLE XII
ADDITIONS, ALTERATIONS OR IMPROVEMENTS BY THE
ASSOCIATION..............................................
12.01. Approval by Members..........................
12.02. Emergency....................................
58
58
59
ARTICLE XIII
ENFORCEMENT..............................................
13.01. Enforcement..................................
13.02. Fines........................................
13.03. Waiver.......................................
13.04. Cause of Action Against Association..........
59
59
59
60
60
ARTICLE XIV
AMENDMENTS...............................................
14.01. Procedure for Amending.......................
60
60
ARTICLE XV
CONFLICT; INVALIDITY ....................................
15.01. Conflict.....................................
15.02. Invalidity...................................
61
61
61
ARTICLE XVI
NOTICE...................................................
16.01. Notice to Members............................
16.02. Notice of Change of Address..................
ARTICLE XVII
ARBITRATION..............................................
- iii-
61
61
62
62
Page
ARTICLE XVIII
CORPORATE SEAL...........................................
- iv-
62
BY-LAWS
OF
ARTICLE I
NATURE OF BY-LAWS AND DEFINITIONS
1.01. Purpose. These By-Laws are intended to govern the
administration of Greenbriar at Whittingham Community Association, Inc.,
a non-profit membership corporation organized under Title 15A of the
Revised Statutes of New Jersey, together with the management,
administration, utilization and maintenance of the Property described in
the Declaration of Covenants, Easements and Restrictions for Greenbriar
at Whittingham.
1.02. Definitions. Unless it is plainly evident from the
context that a different meaning is intended, all definitions set forth
in the Declaration are incorporated herein by reference.
1.03. Fiscal Year. The fiscal year of the corporation shall be
on a calendar year basis unless otherwise determined by the Board of
Directors.
1.04. Principal Office. The principal office of the
corporation is located at 800 West Main Street, Freehold, New Jersey
07728.
ARTICLE II
MEMBERSHIP AND VOTING RIGHTS
2.01. Membership. Every Home Owner shall be a member of the
Association, subject to the provisions of these By-laws and any Rules and
Regulations promulgated by the Board.
89
Membership in the Association shall lapse and terminate when any Member
shall cease to be the record owner of a Home.
2.02. Associate Members. Every person who is entitled to
possession and occupancy of a Home as a tenant or lessee of a Home may be
an Associate Member of the Association, but shall not be entitled to any
vote with respect to Association matters.
2.03. Change in Membership. Change of Membership shall be
accomplished by the recordation in the Middlesex County Clerk's Office of
a deed or other instrument establishing a record title to a Home and
delivery to the Secretary of the Association of a certified copy of such
instrument together with such sums of money as are required for the
payment of any membership for, contribution to capital or escrow deposit.
The membership of the prior Owner shall be thereby terminated.
2.04. Rights of Membership. Every person who is entitled to
Membership in the Association, pursuant to the provisions of the
Certificate of Incorporation and these By-Laws, including any Associate
Member, shall be privileged to use and enjoy the Common Property,
subject, however, to the right of the Association to:
(a)
Promulgate Rules and Regulations governing such use and
enjoyment;
(b)
Suspend the use and enjoyment of the Common Property as
provided in Section 2.05 of this Article II; and
-2-
(c)
Transfer all or part of the Common Property, as provided
in Section 6.01(1) of Article VI hereof.
2.05. Suspension of Rights. The membership rights of any Home
Owner (including, but not limited to the right to vote) may be suspended
by action of the Board during the period when such Home Owner's
assessments remain unpaid; but upon payment of such assessments and any
interest accrued thereon, if by cash, money order or certified or
collected funds, his rights and privileges shall be immediately and
automatically restored. Further, if the Rules and Regulations governing
the use of the Common Property and the personal conduct of persons
thereon have been adopted and published as authorized in the By-Laws, the
Board may, in its discretion, suspend the rights and privileges of any
such person in violation thereof or in violation of any non-monetary
covenant of the Declaration for a period not to exceed thirty (30) days
for any single violation, but if the violation is of a continuing nature,
such rights and privileges may be suspended indefinitely until such time
as the violation is abated. No such action shall be taken by the Board
until the Home Owner is afforded an opportunity for a hearing consistent
with the principles of due process of law.
2.06. Voting Rights. There shall be 1,200 votes in the
Association, each of equal weight, all of which shall be held by the
Developer, who shall be deemed to be a Member of the Association;
provided, however, chat upon each conveyance of title of a Home by
Developer to another Owner, such Owner shall
-3-
become entitled to one vote for each Home purchased, and the number of
votes held by Developer shall be reduced accordingly. The Developer's
votes shall be cast by such persons as it may from time to time
designate. Votes not held by the Developer shall be cast in person or by
proxy, as otherwise provided herein. Despite anything to the contrary, it
is understood that in the event that the number of Lots ultimately
established upon the Property is more or less than 1,200, the number of
votes in the Association shall be equal to the number of Homes
established.
2.07. Interest in the Common Property. Each Home Owner,
including the Developer, shall have a membership interest in the
Association and an ownership interest in and to the Common Property equal
to and in proportion with the number of votes which he holds pursuant to
Section 2 hereof. Such interest shall be appurtenant to and indivisible
from ownership of his Home or, in the Developer's case only, from
ownership of any proposed Homes or which final subdivision is
contemplated by the Declaration and has not yet been obtained. Each Home
Owner who is entitled to membership in the Association pursuant to these
By-laws shall be privileged to use and enjoy the Common Property subject
to the right of the Association to promulgate rules and regulations
governing such use and enjoyment, and subject further to the provisions
of Section 4 this Article.
2.08. Contribution to Capital. Each Member shall pay to the
Association upon acquisition of title to his Home a one
-4-
time non-refundable capital contribution payable GWCA equal to one-sixth
(1/6) of the current GWCA common expense assessment, which sum may be
utilized for working capital or any lawful purpose which the Board may
deem appropriate. This provision shall apply to the resale of all Homes
as well as to the initial sale thereof.
ARTICLE III
MEETINGS OF MEMBERS
3.01. Place of Meetings. All meetings of the Members of
Association shall be held at its principal office or at such other place
convenient to the Members as may be designated by the Board.
3.02. Annual Meeting. All regular annual meetings of the
Members of the Association shall be held during the same month of each
year succeeding the first annual meeting on a date designated by the
Board from year to year, and the first such annual meeting shall be held
not more than sixty (60) days after Developer conveyed a total of three
hundred (300) Homes to other Home Owners, or on such earlier date as
Developer, in its sole discretion, may choose, but in no event after
thirteen (13) months from the date the Association is incorporated. At
each annual meeting subsequent to the conveyance of three hundred (300)
Homes as aforesaid, the election of Directors shall take place. If the
election of Directors shall not be held at the annual meeting or at any
adjournment of such meeting, the Board shall cause the election to be
held at a special meeting as soon
-5-
thereafter as may be convenient, but in no event later than sixty (60)
days after the initial annual meeting date. At such special meeting the
Members may elect the Directors and transact other business with the same
force and effect as at an annual meeting duly called and held. All
proxies and absentee ballots validly received for the originally
scheduled meeting shall remain in full force and effect for such
adjourned meeting or special meeting, and new proxies or absentee ballots
may be received for any such subsequent meeting.
3.03. Special Meetings. Special meetings of Members shall be
called by the President whenever he deems such a meeting advisable, or
shall be called by the Secretary upon the order by the Board or upon the
written request of Members representing not less than twenty-five percent
(25%) of all the votes entitled to be cast at such meeting. Such request
shall state the purpose(s) of such meeting and the matter(s) proposed to
be acted upon. Unless Members representing at least fifty percent (50%)
of all voces entitled to be cast request such a meeting, no special
meeting may be called to consider any matter which is substantially the
same as a matter voted upon at any meeting of the Members held during the
proceeding twelve (12) months, which determination shall be made in the
sole and absolute discretion of the Board.
3.04. Notice of Meeting. Except as otherwise provided by
N.J.S. 46:8B-12.1b and Section 4.02 herein with respect to transition
elections, notice of each meeting of the Members,
-6-
whether annual or special, shall be given not less than ten (10) days,
nor more than ninety (90) days before the day on which the meeting is to
be held, to each Member at his last known address, by delivering a
written or printed notice thereof to said Member, or by mailing such
notice, postage prepaid. Except where expressly required by law, no
publication of any notice of a meeting of Members shall be required.
Every such notice shall state the time and place of the meeting and shall
state briefly the purpose(s) thereof. Notice of any meeting of Members
shall not be required to be given to any Members who shall attend such
meeting in person or by proxy. Notice of any adjourned meeting of the
Members shall not be required to be given unless the time and place to
which the meeting is adjourned is not announced at the meeting adjourned.
3.05. Quorum and Adjourned Meeting. At each meeting of the
Association, Members in Good Standing (including Developer or its
representative) holding twenty-five (25%) percent of the total authorized
votes, present in person, by proxy or by mail ballot, shall constitute a
quorum for the transaction of business at a meeting of the membership
except where otherwise provided of law. In the absence of a quorum, the
persons holding votes present in person or by proxy and entitled to vote,
by majority vote, may adjourn the meeting from time to time, until a
quorum shall be present or represented. At any such adjourned meeting at
which a quorum may be present, any business may be transacted
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which might have been transacted at the meeting originally-called.
3.06. Organization. At each meeting of the Association, the
President, or, in his absence, the Vice President, or in the absence of
both of them, a person chosen by a majority vote of the Members in Good
Standing who are present in person or represented by proxy, shall act as
a chairperson, and the Secretary, or in his absence, a person whom the
chairperson shall appoint, shall act as Secretary of the meeting.
3.07. Voting on Questions. Only Members who hold memberships
in good standing at least three (3) days prior to any meeting at which a
vote is to occur shall be entitled to vote on questions. A majority of
votes present in person or by proxy at any duly constituted meeting of
the membership or by mail ballot shall be sufficient on those questions
submitted to a vote of the membership. The vote on any question at a
meeting need not be taken by ballot, unless (l) the chairperson of the
meeting determines a ballot to be advisable, or (ii) a majority in
interest of the votes present at the meeting determine that the vote on
the question submitted shall be taken by ballot.
3.08. Voting in Elections of Directors. Only Members in Good
Standing who hold memberships in good standing at least three (3) days
prior to any meeting at which an election is to occur shall be entitled
to vote in elections of Directors. Each Member shall be entitled to one
(1) unweighted vote for each Home to which he holds title with respect to
all elections. The
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election of Directors shall be conducted by written ballot. If with
respect to any election more than twice the number of candidates to be
elected are nominated, then there shall be two ballots cast. At the end
of the tabulation of the first ballot, the field of nominees shall be
reduced so that there are twice as many candidates as there are positions
to be filled, with the persons receiving the fewest votes being
eliminated from the ensuing ballot. A second vote shall be held, and on
the second vote, the persons receiving the plurality of votes will be
deemed to be elected in order to fill the vacant positions. If there are
not more than twice the number of nominees for the number of positions to
be filled, then there shall be one vote, with the persons receiving the
highest number of votes being elected in order to fill the vacancies on
the Board. If ever applicable, candidates polling the highest numbers of
votes will be considered elected for the longest period of years.
Election of Directors at all meetings shall be in accordance with this
Section 3.08.
3.09. Ballot by Mail. The Board, in lieu of calling a
membership meeting, may submit any question, or election other than a
Transition Election, to a vote of the membership by a ballot by mail. No
ballot by mail shall be valid or tabulated unless the signature of the
Member(s) submitting the ballot has been verified on the ballot in
accordance with procedures established by the Board. Only Members in Good
Standing shall be entitled to vote. The Board shall appoint judges to
tabulate the
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ballot whose report shall be included in the minute book. In order to
conduct a ballot by mail for a question submitted to a vote of the
membership, the Board shall serve a notice upon all members which shall
(i) state with specificity in terms of motion(s) the question(s) upon
which the vote is to be taken; (ii) state the date by which ballots must
be received in order to be counted; (iii) provide an official ballot for
the purposes of the vote; and (iv) state the date upon which the action
contemplated by the motion(s) shall be effective, which date shall be not
less than ten (10) days after the date ballots must be received. No
actions contemplated by a question submitted to a ballot by mail shall be
taken unless a majority in interest of all owners in good standing submit
ballots approving such action.
In order to conduct a ballot by mail for an election of
Directors, the Board shall serve a notice upon all members which shall
(i) be accompanied by an official ballot for the purposes of the
election; and (ii) state the date by which the ballot must be received in
order to be counted. No ballot shall be counted if the member casting
same is not in good standing at least three (3) days prior to the date
set for the ballot to be received.
3.10. Proxies and Absentee Ballots. Voting by proxy and
absentee ballots shall be permitted with respect to all elections of
Directors and all amendments to the Certificate of Incorporation, the
Declaration, these By-laws, or any other matter to come before a meeting
of the membership of the Association. All proxies and absentee ballots
shall be in writing,
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signed by the individual Member (or in the case of joint owners, by any
one of them), or by his or their duly authorized representative(s), and
delivered to the Secretary of the Association, or such other person as
the President may designate, at least 24 hours prior to the commencement
of the meeting at which ballots are to be cast or at such later time as
may be designated by the Board. Proxies may be revoked at any time prior
to the opening of the polls and no proxy shall be voted on after eleven
(11) months from the date of its execution unless the proxy provides for
a longer period which, in any event can exceed three (3) years from the
date of its execution. All proxies and absentee ballots shall be
substantially in the form prescribed by the Board, and if not in such
form, shall be deemed invalid which determination shall be made in the
sole and absolute discretion of the Board.
3.11. Member in Good Standing. A Member shall be deemed to be
in good standing and entitled to vote at any annual meeting or at any
special meeting of the Association if, and only if, he shall have fully
paid all installments due for assessments made or levied against him and
his Lot by the Board as hereinafter provided, together with all interest,
costs, attorney's fees, penalties and other expenses, if any, properly
chargeable to him and to his Lot (at lease three (3) days prior to the
date fixed for such meeting). Any date set forth in these By-Laws for
determining good standing for voting purposes, as well as any related
requirement which may be established by the Board of
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Directors, shall be deemed supplemental to and not in derogation of, the
record date provisions of N.J.S. 15A:5-7.
3.12. Judges. If, at any meeting of the Members a vote by
ballot shall be taken, the chairperson of such meeting shall appoint two
(2) judges to act as judges with respect to the ballots. Each judge so
appointed shall first subscribe an oath to faithfully execute the duties
of a judge with strict impartiality and according to the best of his
ability. Such judges shall decide upon the qualifications of voters and
shall report the number of votes represented at the meeting and entitled
to be cast, shall conduct and accept the votes, and when the voting is
completed, shall ascertain and report to the Secretary the number of
votes for and against the questions or candidates, respectively. Reports
of judges shall be in writing and subscribed and delivered by them to the
Secretary of the meeting. The judges need not be Members of the
Association, and any officer or Director of the Association may be a
judge on any question, other than a vote for or against his election to
any position with the Association or any other question in which he may
be directly interested.
3.13. Order of Business. The order of business at the annual
meeting of the Members or at any special meetings insofar as practicable
shall be:
(a)
Call of the roll and certifying the proxies.
(b)
Proof of notice of meeting and waiver of notice.
(c)
Reading and disposal of any unapproved minutes.
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(d)
Appointment of Judges of election, if appropriate.
(e)
Election of Directors, if appropriate.
(f)
Receiving reports of officers.
(g)
Receiving reports of committees.
(h)
Old business.
(i)
New business.
(j)
Adjournment.
ARTICLE IV
BOARD OF DIRECTORS
4.01. Qualifications. The following criteria shall be
qualifications for nomination, appointment or election to a Directorship.
(a)
Membership in Good Standing: Membership in Good Standing
shall be a qualification of any nominee or appointee to a
Directorship and for continued service on the Board.
(b)
Representation: Partnerships, corporations, fiduciaries
or co-owners holding memberships in good standing may
designate one individual per Home owned to be eligible
for nomination, appointment, or election as Directors in
accordance with the following qualifications:
(i)
Partnership designees shall be members, employees or
agents of the partnership;
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(ii) Corporate designees shall be officers, stockholders,
employees or agents of the corporation;
(iii) Fiduciary designees shall be fiduciaries, officers,
or employees of the fiduciary; and
(iv) Co-owners holding a membership in good standing may
designate any one of them but only one of them to be
eligible for nomination, appointment, or election as
a Director; however, in the case of any
disagreement, the express consent of a majority in
interest of such Co-owners shall be required.
(c)
Disqualification of Directors. Any Director whose
membership in the Association is not in good standing for
thirty (30) consecutive days shall automatically be
disqualified as a Director upon expiration of said thirty
(30) day period and a replacement shall be appointed by
the Board within thirty (30) days thereafter to serve the
remainder of the term as contemplated by Section 6.04
hereof. Despite the aforesaid, any Director who conveys
title to his Home and no longer holds title to any other
Home is automatically disqualified as a Director
effective on the date of said conveyance.
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4.02. Number.
(a) The affairs of the Association shall be governed by the
Board of Directors. The first Board of Directors shall initially consist
of the three (3) persons named in the Certificate of Incorporation of the
Association who shall serve for a term ending not later than sixty (60)
days after Home Owners other than Developer own three hundred (300) or
more Lots.
Thereafter, the Board shall consist of five (5) Directors
(hereinafter referred to as Directors or Directorships A, B, C, D, and
E). Within sixty (60) days after Lot Owners other than Developer own
three hundred (300) or more Homes, the President shall call and give not
less than twenty (20) nor more than thirty (30) days notice of a special
meeting of the membership of the Association. At such special meeting,
Home Owners other than Developer shall be entitled to vote for and elect
Directors A and B and Developer shall have the right to appoint the
Directors C, D and E.
Thereafter, and within sixty (60) days after Home Owners other
then Developer own nine hundred (900) or more Lots, the President shall
call and give not less than twenty (20) nor more than thirty (30) days
notice of a special meeting of the membership of the Association. At such
special meeting, Home Owners other than Developer shall be entitled to
vote for all of the Directors of the Board not theretofore elected by
them, except that Developer shall be entitled to appoint Director E so
long as Developer owns one or more Homes and holds same for sale
-15-
in the ordinary course of business. In the event that the ultimate number
of Homes within the Development are more or less than 1200, then such
special meeting shall be held within sixty (60) days after seventy-five
percent (75V) of the Homes ultimately to be built are conveyed to
individual purchasers.
(b) In the case of partnership owners (including the
Developer, during such time as Developer shall be an Owner of any Lots),
Directors shall be members, agents or employees of such partnership or of
the partners thereof; or, in the case of corporate owners, Directors
shall be officers, stockholders, employees or agents of such corporation;
or, in the case of fiduciary owners, Directors shall be fiduciaries or
officers or employees of such fiduciaries; provided, however, that at
least one of the Directors of the Board shall be a resident of the State
of New Jersey.
4.03. Removal of Members of the Board. At any duly held
constituted regular or special meeting of the Members, any one or more
Directors may be removed with or without cause by vote of the Members
present, provided that the notice of the meeting expressly includes this
item. A successor may then and there or thereafter be elected by a
majority of the remaining Directors to fill the vacancy thus created.
Each person so appointed shall be a Director for the remainder of the
term of the Director whose term he is filling and until this successor is
duly elected and qualified. Any Director whose removal has been proposed
shall be given an opportunity to be heard at the meeting
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but the failure of any Director to be a Member in Good Standing for a
period of thirty (30) days or more shall be grounds for automatic removal
without any vote of the Members. Despite the foregoing, a Home Ownerelected Director cannot be removed except by a majority vote (in number)
of the Home Owners present other than the Developer, but the failure of
any Director to be a member in good standing for a period of thirty (30)
days or more shall be grounds for automatic removal without any vote of
the members. In the event that all of the Home Owner-elected Directors
are removed, successors shall be elected by the Lot Owners other than the
Developer in the manner set forth herein to fill the vacancies thus
created. This paragraph 4.03 shall not apply to any Director appointed by
the Developer.
4.04. Vacancies. Vacancies on the Board caused by any reasons
other than the removal of a Director by a vote of the Members of the
Association shall be filled by a vote of a majority of the remaining
Directors, including the Developer's appointees, at a special meeting of
the Board held for that purpose promptly after the occurrence of any such
vacancy. Each person so elected shall be a Director for the remainder of
the term of the Director whose term he is filling and until his successor
shall be elected and qualified. Despite the foregoing, until the first
annual meeting of Members, Developer shall have the right to fill all
vacancies on the Board by appointment. Thereafter, any vacancy by a
Director appointed by Developer shall be filled by appointment by
Developer Owner-elected vacancies on the Board
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shall be filled by Home Owners other than the Developer, whether same be
selected pursuant to this provision or to Section 4.02 hereof.
4.05. Term of Office. The initial term of office for those
Directors elected by Members, other than Developer, during that period
wherein Developer elects a majority of the Board of Directors, shall
continue until the first annual meeting of the Members following the
transfer of control of the Association from the Developer to Members
other than Developer, provided however that said term shall in no event
exceed one (1) year.
In the event that Developer does not transfer control within
twelve (12) months of the election of the respective Home Owner Director,
the Director's term shall be deemed expired and elections will be held
for said Director position for a term consistent with the foregoing, not
to exceed twelve (12) months. At the first annual meeting of the Members
following the transfer of control by Developer, elections will be held
for all Director positions, regardless of the length of term of the
existing of Owner Directors. At this time, the term of office of three
(3) members of the Board of Directors shall be fixed at two (2) years and
the term of office of two (2) members of the Board of Directors shall be
fixed at one (1) year. The three two (2) year terms shall go to the three
(3) individuals receiving the highest number of votes and the two (2) one
(1) year terms shall go to the two (2) individuals receiving the next
highest number of votes. At the expiration of the initial term of each
respective
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member of the Board of Directors, his successor shall be elected at the
annual meeting of all the Owners and shall serve for a term of two (2)
years except that the Developer shall be entitled to appoint a Director
so long as the Developer owns one (1) or more Homes and holds same for
sale in the ordinary course of business. Further, the Developer shall
have the right to relinquish control of the Board at any time, provided
that Home Owner, by a majority vote, agree to assume control pursuant to
N.J.A.C. 5:26-8.4(d).
ARTICLE V
TRANSACTION OF BUSINESS BY THE BOARD OF DIRECTORS.
5.01. Express and Implied Powers and Duties. The property,
affairs and business of the Association shall be managed by the Board,
which shall have all those powers granted to it by the Certificate of
Incorporation, the Declaration, these By-Laws and by law.
5.02. Developer's Protective Provisions. After control of the
Board of Directors has become vested in Directors elected by Members
other than the Developer, and so long as the Developer owns at least one
(1) Home and holds same for sale in the ordinary course of business, the
following shall apply:
(a)
Neither the Association or its Board of Directors shall
take any action that will impair or adversely affect the
rights of the Developer or cause the Developer to suffer
any financial, legal or other detriment, including but
not limited to
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any direct or indirect interference with the sale of
Homes, or the assessment of the Developer as a Home
Owner, or otherwise the capital improvements.
(b)
The Association and its Board of Directors shall continue
the same level of maintenance, operation and services as
provided immediately prior to such assumption of control
by the Board except where these By-Laws, the Declaration
or any other document requires a higher degree of
maintenance operation or services, the Association and
its Board shall provide such higher level.
(c)
The Association shall not take any action that would be
detrimental to the sale of Homes by the Developer and
shall continue at least the same level of maintenance,
operation, and services as immediately prior to the
assumption of control by the Association until the last
Home is sold.
(d)
In the event there is a breach of any provision of this
Section, it is acknowledged that any monetary award which
may be available may be an insufficient remedy and
therefore in addition to all other remedies, the
Developer shall be entitled to injunctive relief
restraining any other from breach of any provision of
this Section.
(e)
In furtherance of the foregoing provisions, Developer
shall have the right to veto any and all
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actions of the Association or its Board which the
Developer, in its sole judgment, determines to be
detrimental to Developer's interest,
(f)
Developer shall exercise its veto right, in its sole and
absolute discretion, within ten (10) days after its
receipt of written notice that a resolution or other
action is proposed or has been taken by the Association
or its Board. In such event, Developer shall notify the
Secretary of the Association of its exercise of its veto
right and any such proposal or action shall be null and
void and shall be determined to have no further force or
effect.
The aforementioned protective provisions shall be construed in accordance
with and not in derogation of the provisions of N.J.A.C. 5:26-8.4 of the
regulations promulgated pursuant to the New Jersey Planned Real Estate
Development Full Disclosure Act, N.J.S.A. 45:22A-21 et seq. and shall not
be amended without the express written consent of the Developer.
5.03. Meeting of the Board; Notices; Waiver of Notice. The
first annual meeting of the Board shall be held within ten (10) days
after the first annual meeting of the Members at such time and place as
shall be fixed by a majority of the Board and no notice shall be
necessary. Thereafter, regular meetings of the Board may be held at such
time and place as shall be determined from time to time by a majority of
the Directors. Notice
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of regular meetings of the Board, but at least two (2) meetings shall be
held each year. Notice of regular meetings of the Board shall be given to
each Director by telephone, mail or telegram at least seven (7) days
prior to the day of the meeting. Special meetings of the Board may be
called by the President on three (3) days prior notice to each Director
given by telephone, mail or telegram, which notice shall state the time,
place and purpose of the meeting. Special meetings of the Board shall be
called by the President or the Secretary in like manner and on like
notice on the written request of at least three (3) Directors. Any
Director may, at any time waive notice of any meeting of the Board in
writing and such waiver shall be deemed equivalent to the giving of
notice. Actual attendance by a Director at any meeting of the Board shall
constitute a waiver of notice by him of the time and place thereof. If
all the Directors are present at any meeting of the Board, no notice
shall be required and any business may be transacted at such meeting.
5.04. Quorum and Adjourned Meetings. At all meetings of the
Board, a majority of the Directors shall constitute a quorum for the
transaction of business and the votes of a majority of the Directors
present and voting at a meeting at which a quorum is present shall
constitute a valid decision. If at any meeting of the Board there shall
be less than a quorum present, the majority of those present shall
adjourn the meeting to a new date. At any such adjourned meeting at which
a quorum is present, any business which may have been transacted at the
-22-
original meeting may be transacted without further notice. The vote of a
majority of those present at a Board meeting at which a quorum is present
shall be necessary for valid action by the Board on any matter.
5.05. Joinder in Meetings by Approval of Minutes. The
transaction of any business at any meeting of the Board however called
and noticed or wherever held, shall be valid as though a meeting duly
held after regular call and notice, if a quorum is present; and if,
either before or after the meeting, each Director signs a written waiver
of notice, or a consent to the holding of the meeting, or an approval of
the minutes thereof or of the resolution or act adopted at such meeting.
All such waivers, consents or approval, shall be in writing and filed
with the Secretary and made a part of the minutes of the meeting even
though subsequent thereto or of the resolution or act adopted at such
meeting. All such waivers, consents or approval, shall be in writing and
filed with the Secretary and made a part of the minutes of the meeting
even though subsequent thereto.
5.06. Non-Waiver. All the rights, duties and privileges of the
Board shall be deemed to be continuing and shall not be exhausted by any
single act or series of acts. To the same extent, the failure to use or
employ any remedy or rights hereunder or hereafter granted shall not
preclude its exercise in the future nor shall any custom bind the Board.
5.07. Consent in Lieu of Meeting and Vote. Despite anything to
the contrary in these By-Laws, the Certificate of
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Incorporation or the Declaration despite, the entire Board shall have the
power to take action on any matter on which it is authorized to act,
without the necessity of a formal meeting and vote, if the entire Board
or all of the Directors empowered to act, whichever the case may be,
shall consent in writing to such action.
5.08. Meetings Open to Owners; Notice. All Board Meetings
shall be open to attendance by all Members, subject to those exceptions
set forth in N.J.S.A. 46:8B-13(a) and N.J.A.C. 5:20-1.1, as now or
hereafter amended. The Board may exclude or restrict attendance at those
meetings, or portions of meetings, at which any of the following matters
are to be discussed: 1) any matter the disclosure of which would
constitute an unwarranted invasion of individual privacy; 2) any pending
or anticipated litigation or contract negotiations; 3) any matters
falling within the attorney-client privilege, to the extent that
confidentiality is required in order for any matter involving the
employment, promotion, discipline or dismissal of a specific officer or
employee of the Association. Adequate written notice of the date, time,
place and agenda of all such open meetings shall be given by the Board to
all Members at least forty-eight (4 8) hours in advance of such meeting
in the manner required by N.J.A.C. 5:20-1.2(b). Moreover, the Board shall
also within seven (7) days following the Annual Meeting of the
Association post, mail to newspapers and file with the administrator of
the business office of the Association a schedule of the regular
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Board Meetings to be held in the succeeding year, as prescribed by
N.J.A.C. 5:20-1.2 (c) and make appropriate revisions thereto, all as
required by N.J.A.C. 5:20-1.2(c)1.
ARTICLE VI
POWERS AND DUTIES OF BOARD OF DIRECTORS
6.01. General Powers and Privileges. Subject to the
Declaration or other instruments of creation, the Association may do all
it is legally entitled to do under the laws applicable to its form of
organization. The Association shall discharge its powers in a manner that
protects and furthers the health, safety and general welfare of the
residents of the community. The Association shall provide a fair and
efficient procedure for the resolution of disputes between individual
Members and the Association, and between different Members, that shall be
readily available as an alternative to litigation.
The property, affairs and business of the Association shall be
managed by the Board of Directors, which shall have all those powers
granted to it by the Certificate of Incorporation, the Declaration, these
By-Laws, and by law. The Board shall have all those powers which include
but which are not necessarily limited to the following, together with
such other powers as may be provided herein or in the Declaration, or
which may be necessarily implied:
(a)
To employ, by contract or otherwise, a manager, managing
agent or an independent contractor, to oversee, supervise
and carry out the
-25-
responsibilities of the Board. Said manager or said
independent contractor shall be compensated upon such
terms as the Board deems necessary and proper; and
(b)
To employ any person, firm or corporation to repair,
maintain or renovate the Common Property and Lots, lay
pipes or culverts; to bury utilities; to put up lights or
poles; to erect signs and traffic and safety controls of
various sorts on said Property; and
(c)
To employ professional counsel and to obtain advice from
persons, firms or corporations such as, but not limited
to, landscape architects, architects, engineers, lawyers
and accountants; and
(d)
To employ or contract for water and sewer, electricity
and gas or other forms of utilities, cable or master
antenna television; and
(e)
To employ all managerial personnel necessary, or enter
into a managerial contract for the efficient discharge of
the duties of the Board hereunder; and
(f)
To adopt, amend, and publish Rules and Regulations
covering the details of the operation and use of the
Property including, but not limited to pet controls; and
-26-
(g)
To secure full performance by Owners or occupants of
Homes of all items of maintenance for which they are
responsible; and
(h)
To enforce obligations of the Members and do anything and
everything else necessary and proper for the sound
management of the Property, including the right to bring
or defend lawsuits to enforce the terms, conditions and
restrictions contained in the Declaration, these By-laws
and any Rules and Regulations, governing the Property or
Members. The Board shall also have the power to levy
fines against any Member(s) for violations of any of the
foregoing. Collection of fines may be enforced against
any Member(s) involved as if the fine were a Common
Expense owed by the particular Member(s) and such fines
shall constitute a lien upon the particular Member's Lot.
Before any fine is imposed by the Board, the Member
accused shall have been given notice and afforded an
opportunity to be heard with respect to the alleged
violation in a manner consistent with the principles of
due process of law; and
(i)
To borrow and repay monies giving notes, mortgages or
other security upon such term or terms as it deems
necessary; and
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(j)
To invest and reinvest monies, sue and be sued; collect
interest, dividends, and capital gains; exercise rights,
pay taxes; make and enter into contracts; enter into
leases or concessions; make and execute any and all
proper affidavits for various purposes; compromise any
action without leave of court; and all other powers
contained herein, and those necessary and incidental
thereto; and
(k)
To transfer, grant and obtain easements, licenses and
other property rights with respect to contiguous lands in
a manner not inconsistent with the rights of the Members;
and
(1)
To purchase or lease or otherwise acquire in the name of
the Association or its designees, corporate or otherwise,
on behalf of all Members, Lots offered for sale or lease
or surrendered by their Owners to the Board provided that
the foregoing shall not be construed to constitute a
right of first refusal; and
(m)
To purchase Homes at foreclosure or other judicial sales
in the name of the Association or its designees,
corporate or otherwise, on behalf of all Members; and
(n)
To sell, lease, mortgage (but not vote the votes
appurtenant thereto) or otherwise deal with Homes
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acquired by the Association, and sublease any such Homes
leased by the Association or its designees, on behalf of
all Members; and
(o)
To bring and defend actions by or against one or more
Home Owners pertinent to the health, safety or general
welfare of the Members, or any other legal action to
which the Home Owners may consent in accordance with
these By-laws; and
(p)
To appoint an Insurance Director, who shall not be a
member of the Association, an employee of the Developer,
or the manager, who shall discharge his duties in
accordance with these By-laws. In the absence of such an
appointment, the Board shall be responsible for the
disposition of all insurance proceeds; and
(q)
To create, appoint members to and disband such committees
as shall from time to time be deemed appropriate or
necessary to aid the Board in the discharge of its
duties, functions and powers; and
(r)
To establish a Covenants Committee as hereinafter
provided in Article X; and
(s)
To impose upon each Member the requirement of an escrow
deposit as set forth in Article II, Section 2.08.
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6.02. Duties and Responsibilities. It shall be the affirmative
and perpetual obligation and duty of the Board to perform the following:
(a)
Maintenance and repair of all facilities on the Common
Property, including parking area, roadways, paths, rightof-ways, drainage ways, storm pipes, catch basins, ponds
and streams; and
(b)
Payment of the cost of street lighting subject to any
reimbursement under the Municipal Services Act for the
Common Property; and
(c)
Payment of all taxes and insurance premiums required to
be paid by the Association; and
(d)
Maintenance, operation and administration of the costs
and expenses incidental to the operation and
administration of the Association and its facilities and
services; and
(e)
Mowing and edging of all Owner's lawns provided, however,
that the Association shall not be obligated to provide
other lawn care services including, without limitation,
fertilization, weed control and watering which shall be
provided by each Owner; and
(f)
Providing for snow clearing over two (2) inches of snow
from driveways, roadways, parking lots and walkways
within the Property; and
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(g)
Providing for removal of trash from Owner's Lot on a
weekly or more frequent basis; and
(h)
Retain a management firm or manager to maintain the
Common Property and carry out the duties of the
Association, provided, however, that any management
agreement for the Property will be terminable by the
Association with or without cause upon thirty (30) days
prior written notice thereof, and the term of any such
agreement shall not exceed one (1) year; and
(i)
Providing such other items as may from time to time be
deemed appropriately by the Board; and
(j)
To investigate, hire, pay, supervise and discharge the
personnel necessary to be employed, and provide the
equipment and materials necessary, in order to properly
maintain and operate the Common Property. Compensation
for the services of such employees (as evidenced by
certified payroll) shall be considered an operating
expense of the Association; and
(k)
To cause to be kept a complete record of all its acts and
corporate affairs and to present a summary report thereof
to the Members at the annual meeting or at any special
meeting when requested in writing at least twenty-one
(21) days in advance by Members entitled to cast at least
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twenty-five (25%) percent of the total votes of the
Association; and (1) To allocate common surplus or make
repairs, additions, improvements to, or restoration of
the Property in accordance with the provisions of these
By-laws and the Declaration after damage or destruction
by fire or other casualty, or as a result of condemnation
or eminent domain proceedings; and
(m)
To take such action as may be necessary to comply
promptly with any and all orders or requirements
affecting the premises maintained by the Association
placed thereon by any federal, state, county or municipal
authority having jurisdiction thereover, and order of the
Board of Fire Underwriters or other similar bodies; (n)
To manage the fiscal affairs of the Association as
hereinafter provided in Article VII; and (o) To place and
keep in force all insurance coverages required to be
maintained by the Association, application to its
property and Members including, but not limited to:
(i)
Physical Damage Insurance. To the extent obtainable in
the normal commercial marketplace, broad form insurance
against loss by fire and against loss by lightning,
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windstorm and other risks normally included within all
risk extended coverage, including vandalism and malicious
mischief, insuring all improvements existing within the
Property other than those located within the Homes,
together with all service machinery appurtenant thereto,
as well as common personalty and supplies belonging to
the Association, and covering the interest of the
Association, the Board, the Developer, all Members, the
Township of Monroe and any Permitted Mortgage Holder who
has requested the Association in writing to be named as
loss payee, as their respective interests may appear, in
an amount equal to the full replacement value of the
Common Property (exclusive of foundations and footings)
without deduction for depreciation. Each policy shall
contain a standard mortgagee clause in favor of each
applicable mortgage holder and/or the Township of Monroe,
which shall provide that the loss, if any, thereunder,
shall be payable to each applicable mortgage holder
and/or the Township of Monroe, their respective
successors and assigns, as their interest may
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appear. The aforesaid mortgagee clause shall name as
mortgagee either the Federal National Mortgage
Association (FNMA) or its servicers in the event FNMA
holds mortgages on any Lots. When a servicer is named as
a mortgagee, its name must be followed by the phrase "its
successors and assigns." When a majority of the Board is
elected by the Members other than the Developer, prior to
obtaining any policy of fire insurance or any renewal
thereof, the Board shall obtain a qualified appraisal or
other written evaluation of an insurance broker licensed
to conduct business in New Jersey or other qualified
expert as to the full replacement value of the Common
Property (exclusive of foundations and footings), and the
improvements located thereon, without deduction for
depreciation, for the purposes of determining the amount
of insurance to be effected pursuant to this
subparagraph. The amount of any deductible shall be as
determined by the Board, in its sole discretion. The
insurance shall include coverage in the Homes equal to
the replacement cost of such Homes.
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(ii) Public Liability Insurance. To the extent obtainable in
the normal commercial marketplace, public liability
insurance for personal injury and death from accidents
occurring within the Common Property (and any other areas
which the Board may deem advisable) and the defense of
any actions brought by injury or death of a person or
damage to property, occurring within such Common Property
any act or negligence of any individual Member. Said
insurance shall be in such limits as the Board may, from
time to time, determine, covering each Member of the
Board, the managing agent, the manager, and each Member,
and shall also cover cross liability claims of one
insured against another. Until the first meeting of the
Board following the first annual meeting, such public
liability insurance shall be in a single limit of not
less than $1,000,000.00 covering all claims for personal
injury or property damage arising out of any one
occurrence. The Board shall review such limits once a
year.
(iii) Directors and Officers Liability Insurance. To the
extent obtainable in the normal
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commercial marketplace, liability insurance indemnifying
the Trustees and Officers of the Association against the
liability for errors and omissions occurring in
connection with the performance of their duties, in an
amount of at least $1,000,000.00, with any deductible
amount to be in the sole discretion of the Board.
(iv) Workers Compensation Insurance. Workers compensation and
New Jersey disability benefits insurance as required by
law.
(v)
Vehicular Liability Insurance. To the extent obtainable
in the normal commercial marketplace, vehicular liability
insurance to cover all motor vehicles, if any, owned or
operated by the Association.
(vi) Flood Insurance. Flood hazard insurance in the event any
of the insurable Common Property are located within a
federally designated zone of greater than minimal flood
hazard.
(vii) Water Damage. Water damage legal liability insurance.
(viii) Other Insurance. Such other insurance as the Board may
determine.
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All policies shall: (i) provide, if possible, for
recognition of any insurance trust agreement of the
Association and that adjustment of loss shall be made by
the Board with the approval of the Insurance Trustee, if
any, and that the net proceeds thereof, if $25,000.00 or
less shall be payable to the Board, and if more than
$25,000.00 shall be payable to the Insurance Trustee if
any; (ii) require that the proceeds of physical damage
insurance be applied to the restoration of such Common
Elements and such portions of the structures,
improvements and service machinery as is required by the
Declaration and these By-Laws; (iii) to the extent
obtainable contain agreed amount and inflation guard
endorsements; construction code endorsement; demolition
cost endorsement; contingent liability from operation of
building laws endorsement and increased cost of
construction endorsement; (iv) provide that the insurance
will not be prejudiced by any act or omission of
individual Members that are not under the control of the
Association; (v) provide that the policy will be primary,
even if insurance covering the same loss is held by any
member(s); (vi) to the extent obtainable contain waivers
of subrogation and waivers of any defense
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based on co-insurance or of invalidity arising from any
acts of the insured; and (vii) provide that such policies
may not be cancelled without at least thirty (30) days
prior written notice to all of the named insureds,
including all Lot Owners and Eligible Mortgage Holders.
All policies shall show the named insured as:
"Greenbriar at Whittingham Community Association, Inc.,
for the use and benefit of the individual Home Owners,"
the Township of Monroe, or the Association's Insurance
Trustee, if any. The "loss payable" clause must show the
Association, the Township of Monroe, or the Insurance
Trustee, as a trustee for each Owner, mortgage holder or
other loss payee. Also, the policies must require the
insurer to notify in writing the Association, the
Township of Monroe, its Insurance Trustee and each
Eligible Mortgage Holder or other entity named in the
mortgagee clause at least thirty (30) days before it
substantially changes the Association's coverage.
The Board may determine, in its sole discretion, the
amount of any deductible and the responsibility for
payment of same as to any policy of insurance maintained
under this subsection. Despite any other provisions of
this
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subsection, the Association shall not be required to
provide any type or amount of insurance not commonly
available in the normal commercial marketplace.
The premiums for all insurance and fidelity bonds
carried by the Association shall be a Common Expense and
shall be borne by the Home Owners in direct proportion to
their obligations for payment of all other Common
Expenses.
(p)
hereinafter provided in Article VII.
ARTICLE VII
FISCAL MANAGEMENT
7.01. Common Expense Assessments. The Board shall have the
duty to collect from each Member, including the Developer, his, her, or
their heirs, administrators, successors and assigns, as "Common Expense
Assessments", the proportionate part of the Common Expenses assessed
against such Member as provided in the Declaration, the Certificate of
Incorporation, these By-laws, and in accordance with applicable law.
While the Developer appoints a majority of the Board, it shall not cause
the Association to make any additions, alterations, improvements or
purchases not contemplated in the Public Offering Statement registered
with the New Jersey Department of Community Affairs which would
necessitate a special assessment or a substantial increase in the common
expense
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assessment unless required by a governmental agency, title insurance
company, mortgage lender or in the event of emergency.
7.02. Determination of Common Expenses. The amount of monies
for Common Expenses deemed necessary by the Board and the manner of
expenditure thereof, including but not limited to, the allocation
thereof, shall be a matter for the sole discretion of the Board.
7.03. Disbursements. The Board shall take and hold the funds
as collected and shall disburse the same for the purposes and in the
manner set forth herein and as required by the Declaration, Certificate
of Incorporation, an applicable law.
7.04. Depositories. The depository of the Association shall be
such a bank or banks as shall be designated from time to time by the
Board and in which the monies of the Association shall be deposited.
Withdrawal of monies from such accounts shall be only by checks signed by
such parties as are authorized by the Board, provided that a management
agreement may include among its provisions authority for the manager to
sign checks on behalf of the Association for payment of the obligations
of the Association, if the proper fidelity bond is furnished to the
Association.
7.05. Accounts. The receipts and expenditures of the
Association shall be Common Expense Assessments and Common Expenses
respectively, and shall be credited and charged to accounts under the
following classifications as the Board shall
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deem appropriate all of which expenditures shall be Common Expenses:
(a)
Current expenses, which shall include all expenditures
within the year for which the budget is made, including
reasonable allowances for contingencies and working
funds. Current expenses shall not include expenditures
chargeable to reserves, or to additional improvements, or
to operations. At the end of each year, the unexpended
amount remaining in this account shall be applied to
reduce the assessments for current expenses for the
succeeding year, or may be distributed to the membership
as the Board shall determine.
(b)
Reserves for deferred maintenance, which shall include
funds for maintenance items that occur less frequently
than annually.
(c)
Reserves for replacement, which shall include funds for
repair or replacement of the Common Property for which
repair or replacement are required because of damage,
depreciation or obsolescence. The amounts in this account
shall be allocated among each of the separate categories
of replacement items.
(d)
Reserves for capital improvements, which shall include
funds to be used for capital expenditures
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or for the acquisition of additional personal property
that will be part of the Common Property.
(e)
Operations, which shall include all funds from the use of
the Common Property or from any other sources. Only the
additional direct expense required by any revenue
producing operation will be charged to this account and
any surplus from any operation or otherwise shall be used
to reduce the assessments for current expenses for the
year during the one in which the surplus is realized or
at the discretion of the Board, in the year following the
one in which the surplus is realized. Losses from the
operations or otherwise shall be met by levying special
assessments against the Members, which assessments may be
made in advance in order to provide a working fund.
(f)
Working capital, consisting of those nonrefundable and
nontransferable contributions imposed upon each Home upon
acquisition of title to a Home pursuant to Section 2.08
hereof, which may be utilized by the Board in its
reasonable discretion to meet unanticipated or other
expenses of the Association operating or capital reserves
or for other lawful purposes (but not in order to reduce
the Annual Common Expense Assessment).
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The Board shall not be required to physically segregate the
funds held in the above accounts except for reserves for replacement and
repair, which fund must be maintained in separate accounts. The Board
may, in its sole discretion, maintain the funds in one or more accounts,
the division into the various shares or accounts set forth above need be
made only on the Association's records.
7.06. Reserves. The Board shall not be obligated to expend all
of the revenues collected in any accounting period, and must maintain
reasonable reserves for, among other things, repairs, replacements,
emergencies, contingencies of bad weather or uncollected accounts.
Despite anything herein to the contrary, the Board in its determination
of the Common Expenses and the preparation of a budget shall specifically
designate and identify that portion of the Common Expenses which is to be
assessed against the Members as a capital contribution and is allocable
to reserves for each separate item capital improvement of and to said
Property. The amounts assessed and collected for the reserves shall be
kept in one or more interest-bearing savings accounts or certificates of
deposit in a federally insured institution, and shall not be utilized for
any purpose other than that which was contemplated at the time of
assessment. The foregoing shall not be construed to mean that the Board
shall not be permitted to keep additional cash on hand, in a checking or
petty cash account, for the necessary discharge of its functions.
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7.07. Exemption from Payment of Common Expenses. Despite
anything to the contrary herein, the Developer shall not be responsible
for the payment of Common Expenses for unsold Homes including reserves
until such time as Developer has obtained a certificate of occupancy for
the Home.
7.08. Notice. The Board shall give notice to each Member, in
writing, and to any Eligible Mortgage Holder of the amount estimated by
the Board for Common Expenses for the management and operation of the
Association for the next ensuing period, directed to the Home Owner at
his last known address by ordinary mail, or by hand delivery. Said notice
shall be conclusively presumed to have been delivered five (5) days after
deposit in the United States Mails. After control of the Board has been
turned over to Members other than Developer, if an annual Common Expense
assessment is not made as required, an assessment shall be presumed to
have been made in the amount of the last prior year's assessment, and
monthly installments on such assessment shall be due upon each
installment payment date until changed by an amended assessment. In the
event the annual Common Expense assessment proves to be insufficient, the
budget and assessments may be amended at any time by the Board, provided
that nothing herein shall serve to prohibit or prevent the Board from
imposing a lump sum assessment in the case of any immediate need or
emergency which cannot be met by reserve funds allocated for such
contingency.
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7.09. Acceleration of Assessment Installment Upon Default. If
an Owner shall be in default in the payment of an installment upon a
Common Expenses Assessment, the Board may-notify such defaulting Owner of
the delinquent installment due and may accelerate the remaining
installments of the assessment and file a lien for such accelerated
amount upon notice to the such defaulting Owner. If the delinquent
installment has not been heretofore paid, and if the Board elected to
accelerate the remaining installments, then the unpaid balance of the
Common Expense Assessment shall become due upon the date stated in the
notice, which date shall not be less than five (5) days after delivery of
the notice to Owner, or not less than ten (10) days after the mailing of
such notice to him by registered or certified mail, whichever shall first
occur. If such notice is given or if such notice is given but the Board
did not elect to accelerate the remaining installments and default shall
continue for a period of thirty (30) calendar days then the Board shall
be required to accelerate the remaining installments of the assessment
upon notice to the defaulting Owner, and to file a lien for such
accelerated assessments as permitted by law; in such latter event the
Board may also notify any Permitted Mortgage Holder holding a mortgage
which encumbers the Home affected by such default. If said default
continues for a period of ninety (90) calendar days then the Board shall
foreclose the foregoing lien pursuant to law and/or commence a suit
against the appropriate parties to collect said assessment.
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7.10. Interest and Counsel Fees. The Board at its option shall
have the right in connection with the collection of any Common Expense
assessment, or other charge, to impose an interest or late charge not to
exceed the legal maximum rate permitted by law if such payment is made
after a date certain stated in such notice. In the event that the Board
shall effectuate collection of said assessments or charges by resort to
counsel, and/or the filing of a lien, the Board may add to the aforesaid
assessments or charges reasonable counsel fees, plus the reasonable costs
for preparation, filing and discharge of the lien, in addition to such
other costs as may be allowable by law.
(a)
In the case of any action or proceeding brought or
defended by the Association or the Board pursuant to the
provisions of these By-Laws, the reasonable costs and
expenses of preparation and litigation, including
attorneys and expert witness fees, shall be a Common
Expense allocated to all Home Owners.
(b)
Money judgments recovered by the Association in any
action or proceeding brought hereunder, including costs,
penalties or damages shall be deemed a special fund to be
applied to (1) the payment of unpaid litigation expenses;
(2) refunding to the Owners the cost and expenses of
litigation advanced by them; (3) Common Expenses, if the
recovery thereof was the purpose of the litigation; (4)
repair or reconstruction of the
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Common Elements if recovery of damages to same was the
motivation for the litigation; and (5) any amount not
applied to (1), (2), (3) and (4) above shall at the
discretion of the Board be treated either as (i) a common
surplus which shall be allocated and distributed pursuant
to the provisions of the Declaration or (ii) a set off
against the common charges generally.
Despite the foregoing, if an Owner(s), the Board or
any other person or legal entity affected by any such
distribution, shall assert that the damages sustained or
the diminution in value suffered by an Owner(s) was
disproportionate to his or their percentage of common
interest, in that event the matter shall be submitted to
binding arbitration to be decided in accordance with the
procedures set forth in Article XVII hereof.
(c)
All Common Expenses received and to be received by the
Board, for the purpose of paying any judgment obtained
against the Association or the Board and the right to
receive such funds, shall constitute trust funds and the
same shall be expended first for such purpose before
expending any part of the same for any other purpose.
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(d)
In the event that a Lot Owner(s) succeeds in obtaining a
judgment or order against the Association or the Board,
then in addition to any-other sums to which said Owner(s)
would otherwise be entitled by such judgment or order, he
or they shall also be entitled to the restitution or
recovery of any sums paid to the Board as assessments for
litigation expenses in relation to said action or
proceeding.
7.11. Power of Attorney to Permitted Mortgage Holder. If the
Board shall not cause the enforcement procedures provided in Sections
7.08 and 7.09 above to be implemented within the time provided, any
Permitted Mortgage Holder for any Home as to which there shall be such
unpaid Common Expense Assessments is hereby irrevocably granted a power
of attorney to commence such actions and to invoke such other remedies,
all in the name of the Association. This power of attorney is expressly
stipulated to be coupled with an interest in the subject matter.
7.12. Annual Audit. The Board shall submit the books, records
and memoranda of the Association to an annual audit by an independent
certified or public accountant who shall audit the same and render a
report thereon in writing to the Board and in summary form to the Lot
Owners and such Eligible Mortgage Holders or other persons, firms or
corporation as may be entitled to same. While the Developer has the right
to designate a majority of the Directors to the Board, an annual audit
shall be performed
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by an independent certified or public accountant, a copy of which report
shall be delivered to each Member within ninety (90) calendar days of the
expiration of the fiscal year of the Association. The audit shall cover
the operating budget and reserve accounts.
7.13. Examination of Books. Each Member shall be permitted to
examine the books of account of the Board by appointment at a reasonable
time on business days; provided, however, that the Treasurer of the
Association has been given at least ten (10) calendar days prior written
notice of the Member's desire to make such an examination.
7.14. Fidelity Bonds. Fidelity bonds shall be required by the
Board from all persons handling or responsible for Association funds. The
amount of such bonds shall be determined by the Board. The premiums on
such bonds shall be paid by the Association. While the Developer has the
right to designate a majority of the Directors to the Board, Developer
shall pose a fidelity bond or other guarantee acceptable to the New
Jersey Department of Community Affairs, in an amount equal to the annual
budget. For the second and succeeding years, the bond or other guarantee
shall include accumulated reserves.
ARTICLE VIII
OFFICERS
8.01. Designation. The principal officers of the Association
shall be a President, a Vice-President, both of whom shall be Members of
the Board, a Secretary and a Treasurer. The
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Board may also appoint such other Assistant Treasurers and Assistant
Secretaries as in their judgment may be necessary. Any two (2) offices,
except that of President and Vice-President, may be held by one person.
8.02. Election of Officers. The officers of the Association
shall be elected annually by the Board at its first meeting following
each annual meeting and such officers shall hold office at the pleasure
of the Board.
8.03. Removal of Officers. Upon an affirmative vote of a
majority of the full membership of the Board, any officer may be removed,
either with or without cause, after opportunity for a hearing, and his
successor elected at any regular meeting of the Board, or at any special
meeting of the Board called for such purpose.
8.04. Duties and Responsibilities of Officers.
(a)
President. The President shall be the chief executive
officer of the Association. He shall preside at all
meetings of the Association and of the Board. He shall
have all of the general powers and duties which are
usually vested in the office of President of an
Association.
(b)
Vice-President. The Vice-President shall take the place
of the President and perform his duties whenever the
President shall be absent or unable to act. If neither
the President nor the Vice-President is able to act, the
Board shall appoint
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some other Director to do so on an interim basis. The
Vice-President shall also perform such other duties as
shall from time to time be imposed upon him by the Board.
(c)
Secretary- The Secretary shall keep the minutes of all
meetings of the Board and the minutes of all meetings of
the Members of the Association; he shall have charge of
such books and papers as the Board may direct; and he
shall, in general, perform all the duties incident to the
office of the Secretary.
(d)
Treasurer. The Treasurer shall have the responsibility
for the Association funds and securities and shall be
responsible for keeping full and accurate accounts of all
receipts and disbursements in books belonging to the
Association. He shall be responsible for the deposit of
all monies and other valuable effects in the name, and to
the credit of the Association in such depositories as may
from time to time be authorized by the Board.
8.05. Other Duties and Powers. The officers shall have such
other duties, powers and responsibilities as shall, from time to time, be
authorized by the Board.
8.06. Eligibility of Directors. Nothing herein contained shall
prohibit a Director from being an officer.
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ARTICLE IX
COMPENSATION, INDEMNIFICATION AND EXCULPABILITY OF
OFFICERS, DIRECTORS AND COMMITTEE MEMBERS
9.01. Compensation. No compensation shall be paid to the
President or the Vice-President or any Director or Committee Member for
acting as such Officer or Director. The Secretary and/or Treasurer may be
compensated for their services if the Board determines that such
compensation is appropriate. Nothing herein stated shall prevent any
Officer, Director or Committee Member from being reimbursed for out-ofpocket expenses or compensated for services rendered in any other
capacity to or for the Association, provided, however that any such
expenses incurred or services rendered shall have been authorized in
advance by the Board.
9.02. Indemnification. Each Director, officer or committee
member of the Association, shall be indemnified by the Association
against the actual amount of net loss, including counsel fees, reasonably
incurred or imposed upon him in connection with any action, suit or
proceeding to which he may be a party by reason of his being or having
been a Director, officer or committee member of the Association, or
delegee, except as to matters as to which he shall be ultimately found in
such action to be liable for gross negligence or willful misconduct. In
the event of a settlement of any such case, indemnification shall be
provided only in connection with such matters covered by the
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settlement as to which the Association had not been guilty of gross
negligence or willful misconduct.
9.03. Exculpability. Unless acting in bad faith neither the
Board as a body nor any Director, officer or committee member shall be
personally liable to any Member in any respect for any action or lack of
action arising out of the execution of his office. Each Lot Owner shall
be bound by the good faith actions of the Board, officers and committee
members of the Association, in the execution of the duties of said
Directors, officers and committee members. Nothing contained herein to
the contrary shall serve to exculpate members of the Board of Directors
appointed by the Developer from their fiduciary responsibilities.
ARTICLE X
COVENANTS COMMITTEE
10.01. Purpose. The Board may establish a Covenants Committee,
consisting of three (3) members appointed by the Board, each to serve for
a term to be determined by the Board, in order to assure that the
Property shall always be maintained in a manner :
(1)
providing for visual harmony and soundness of repair;
(2)
avoiding activities deleterious to the aesthetic or
property values of the Property,
(3)
furthering the comfort of the Lot Owners, their guests,
invitees and lessees; and
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(4)
promoting the general welfare and safety of the
community.
10.02. Powers. The Covenants Committee shall (i) regulate the
external desire, appearance, use and maintenance of the Property in
accordance with standards and guidelines contained in the Declaration or
By-Laws or otherwise adopted by the Board and (ii) mediate or arbitrate
any disputes which may arise between or among any Members under the
Governing Documents. The Covenants Committee shall have the power to
issue a cease and desist request to a Lot Owner, his guests, invitees, or
lessees whose actions are inconsistent with the provisions of the
Declaration, the By-Laws, the Rules and Regulations or Resolutions of the
Board (upon petition of any Lot Owner or upon its own motion). The
Covenants Committee shall provide interpretations of the Declaration,
Certificate of Incorporation, By-Laws, Rules and Regulations when
requested to do so by a Member or the Board. Any action, ruling or
decision of the Covenants Committee may be appealed to the Board by any
party deemed by the Board to have standing as an aggrieved party and a
vote of a majority of the full authorized membership of the Board may
modify or reverse any such action, ruling or decision.
No Owner (other than Developer) may make any structural
additions, alterations or improvements in or to the Home without the
prior written approval of the Covenants Committee or impair any easement
without the prior written consent of the Covenants Committee subject to a
right of appeal to the Board. No such
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approvals may be granted without properly completed application having
first been made to the Covenants Committee.
The Covenants Committee shall have the obligation to act upon
any written application received by it from an Owner for approval of a
proposed structural addition, alteration or improvement in such Owner's
Home within sixty (60) days after receipt of such application in properly
completed form. If the Owner of the Home involved has not received notice
of the Covenants Committee's decision within thirty (30) days of the date
on which he delivered the properly completed application pursuant hereto,
he nay notify the Covenants Committee of that fact within forty-five (45)
days of the date on which he so delivered such completed application and,
if such second notice is given, the Covenants Committee's approval shall
be deemed to have been granted unless notice to the contrary is given to
the Owner of the property involved within sixty (60) days of the date on
which the original completed application was so delivered. If no such
second notice is given to the Covenants Committee and no action is taken
within the sixty (60) day period after the completed application is
received, the application shall be deemed automatically denied. However,
such denial shall not prohibit resubmission to the Covenants Committee or
appeal to the Board.
The Owner of the Home involved may, within thirty (30) days of
the date on which he is given notice of a decision of the Covenants
Committee denying a requested approval, give notice to
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the Board of Directors that he wishes the request be submitted for
decision to the Board. Thereupon, unless the request has already been
submitted for decision to the Board pursuant to the provision hereof (in
which event the Board shall so notify the Owner), the Board shall submit
such request to a decision by a majority of the entire membership of the
Board and shall promptly notify the Owner thereof. If the Owner of the
Home involved has not received notice of the Board's decision within
twenty (20) days of the date on which he gave notice to the Board,
pursuant to this subparagraph he may notify the Association of that fact
within twenty-five (25) days of the date on which he gave such notice to
the Board and, if such second notice is received by the Board within such
twenty-five (25) day period, the request shall be deemed to have been
granted unless notice to the contrary is given to the Owner of the Home
involved within forty-five (45) days of the date or. which the original
notice was received by the Board, the application shall be deemed
automatically denied.
The decision of any member of the Board on any request for
approval submitted to him. for decision shall be evidenced by a writing
signed by such member.
Any application to any municipal authority for a permit to
make an addition, alteration or improvement in or to any Home must be
approved by the Covenants Committee and, if approved, shall be executed
by the Chairperson of the Covenants Committee or his delegee and may then
be submitted by the Owner. Such approval, however, shall not incur any
liability on the part of
-56-
the Association to any contractor, subcontractor, or materialman on
account of such addition, alteration or improvement, or to any person
having any claim for injury to person or damage to property arising
therefrom. The Owner(s) shall furnish the Board with copy of any such
permit which he has procured. The provisions of this Section shall not
apply to Homes owned by Developer.
10.03. Authority. The Covenants Committee shall have such
additional duties, power and authority as the Board may from time to time
provide by resolution including the right to impose fines pursuant to
Section 13.02 hereof. The Board may relieve the Covenants Committee of
any of its duties, powers and authority either generally or on a case by
case basis. The Covenants Committee shall carry out its duties and
exercise its powers and authority in the manner provided for in the Rules
and Regulations adopted by the Board. Despite the foregoing, no action
may be taken by the Covenants Committee without given the Home Owner(s)
involved at least ten (10) days prior written notice and affording him
the opportunity to be heard, with or without counsel and the right to
cross examine witnesses, with respect to the violation(s) asserted.
ARTICLE XI
OTHER COMMITTEE
11.01. Committees. The other standing Committee of the
Association shall be: The Audit Committee. Unless otherwise provided
herein, the foregoing committee shall consist of a
-57-
Chairman and two (2) or more members and shall include a member of the
Board. The committee shall be appointed by the Board prior to each annual
meeting to serve from the close of such annual meeting until the close of
the next annual meeting and such appointment shall be announced at each
such annual meeting. The Board may appoint such other committees as it
deems desirable.
11.02. Audit Committee. The Audit Committee shall supervise
the annual audit of the Association's books. The Treasurer shall be an ex
official member of the Committee.
11.03. Subcommittees. The foregoing committees shall have
power to appoint a subcommittee from among its members and may delegate
to any such subcommittee any its powers, duties and functions.
11.04. Member Complaints. It shall be the duty of each
Committee to receive complaints from Members on any matter involving
Association functions, duties and activities within its field of
responsibility. It shall dispose of such complaints as it deems
appropriate or refer them to such other committee, Director or officers
of the Association as may be further concerned with the matter presented.
ARTICLE XII
ADDITIONS, ALTERATIONS OR IMPROVEMENTS BY THE ASSOCIATION
12.01. Approval by Members. Whenever, in the judgment of the
Board, the Common Property requires improvements costing in excess of
$5,000.00, said improvements shall not be made
-58-
unless they have been approved by a majority of votes at a meeting of the
Association at which a quorum is present. When said approval has been
obtained, all Members (other than the Developer) shall be assessed for
the cost thereof as a Common Expense.
12.02. Emergency. Despite the provisions of Section 12.01 in
the event of any emergency which could cause damage to any portion of the
Common Property as to any Building or part(s) thereof, the Board may
expend sums in excess of $5,000.00 to protect the Common Property and the
judgment of the Board shall be final.
ARTICLE XIII
ENFORCEMENT
13.01. Enforcement. The Board shall have the power, at it sole
option, to enforce the terms of this instrument, the Declaration or any
Rule or Regulation promulgated pursuant hereto, by any or all of the
following: self-help; sending notice to the offending party to cause
certain things to be done or undone; restoring the Association to its
original position and charging the breaching party with the entire cost
or any part thereof; complaint to the duly constituted authorities; or by
taking any other action, summary or otherwise, before any court, as may
be provided by law.
13.02. Fines. The Board shall also have the power to levy
fines against any Members' for violation (s) of any Rule or Regulation of
the Association or for any covenants or
-59-
restrictions contained in the Declaration or By-Laws, except that no fine
may be levied for more than $25.00 for any one violation; provided,
however, that for each day a violation continues after notice it shall be
considered a separate violation. Collection of the fines may be enforced
against any Lot Owner(s) involved as if the fine were a Common Expense
owed by the particular Lot Owner(s). Despite the foregoing, before any
fine is imposed by the Board, the Member involved shall be given at least
ten (10) days prior written notice and afforded an opportunity to be
heard, with or without counsel, with respect to the violation(s)
asserted.
13.03. Waiver. No restriction, condition, obligation or
covenant contained in these By-Laws shall be deemed to have been
abrogated or waived by reason of the failure to enforce the same
irrespective of the number of violations or breaches thereof which may
occur.
13.04. Cause of Action Against Association. Lot Owners shall
have a cause of ace ion, to the extent permitted by the laws of this
State, against the Association for its failure to act in accordance with
the Declaration, Certificate of Incorporation, these By-Laws, any Rules
or Regulations or any formal decisions of the Association.
ARTICLE XIV
AMENDMENTS
14.01. Procedure for Amending. Subject to the restrictions in
Section 5.02 of these By-Laws, these By-Laws may
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be altered or repealed, or new By-Laws may be made, at any meeting of the
Association duly constituted for such purpose, and previous to which
written notice to Members of the exact language of the amendment or of
the repeal shall have been sent, a quorum being present, by an
affirmative vote of fifty-one percent (51%) of all Members, in person or
by proxy. Further, no such amendment, repeal or new By-Laws need to be
recorded with the Middlesex County Clerk's office.
ARTICLE XV
CONFLICT; INVALIDITY
15.01. Conflict. Despite anything to the contrary herein, if
any provision of these By-Laws is in conflict with or contradiction of
the Declaration, the Certificate of Incorporation or with the
requirements of any law, then the requirements of said Declaration,
Certificate of Incorporation or law shall be deemed controlling.
15.02. Invalidity. The invalidity of any part of these By-Laws
shall not impair or affect in any manner the
enforceability or affect the validity of the remaining provisions of the
By-Laws.
ARTICLE XVI
NOTICE
16.01. Notice to Members. Any notice required to be sent to
any Merrier under the provisions of the Declaration or Certificate of
Incorporation or these By-Laws shall be deemed to have been properly sent
and notice thereby given, when mailed, by
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regular post with postage prepaid, addressed to the Member at the last
known post office address of the person who appears as a member on the
records of the Association at the time of such mailing. Notice to one of
two or more co-owners of a Lot shall constitute notice to all co-owners.
Valid notice may also be given to Members by (i) personal delivery to any
occupant of said Lot over 14 years of age or (ii) by affixing said notice
to or sliding same under the front door of any Lot.
16.02. Notice of Change of Address. It shall be the obligation
of every member to immediately notify the Secretary of the Association in
writing of any change of address.
ARTICLE XVII
ARBITRATION
Any arbitration provided for in these By-Laws shall be
conducted before one arbitrator in Middlesex County, New Jersey by the
American Arbitration Association, in accordance with its rules then
obtaining and the decision rendered in such arbitration shall be binding
upon the parties and may be entered in any court having jurisdiction. All
expenses of arbitration _____________________________of counsel and
experts
-62150
Blank Page
151
EXHIBIT 13
Estimated Operating Budget for 1995
Based Upon 587 Homes
and
Budget Letter of Adequacy
THIS PAGE HAS BEEN INTENTION ALLY LEFT BLANK
JACK W. KINAS, CPA
JEROLD DRESKIN, CPA
MEMBER OF THE
AMERICAN INSTITUTE AND
NEW JERSEY SOCIETY OF
CERTIFIED PUBLIC ACCOUNTANTS
Greenbriar at Whittingham Community
Association, Inc.
100 Whittingham Drive
Jamesburg, New Jersey 08831
Gentlemen:
We have reviewed the following figures for inclusion in the Offering Plan
of Greenbriar at Whittingham Community Association, Inc., (“Association”)
the schedule of Income and Expenses for the Association for the year 1995
assuming full occupancy of 587 homes in Section 2.1, 2.2A-H and 1.3.
In our opinion the estimates set forth therein, including reserves for
repair and replacement of common areas and facilities, are reasonable and
adequate, under existing circumstances, and the estimated receipts shown
therein will be sufficient to meet the normal anticipated operating
expenses for the 1995 year of operation. However, because of the
possibility of unforeseen changes in the economy or increases or
decreases in the expenses of operation, our estimates are not intended
and cannot be taken as representation, guaranties or warranties of any
kind whatsoever, or as any assurance that the actual expenses or income
of the Association for any period of operation may not vary from the
amounts shown therein or that the Association nay not incur additional
expenses unforeseeable at this time, or that the Board of Directors may
not provide for reserves not reflected in this estimate, or that the
annual assessments for any period may not vary from "the amounts shown
therein. It may be expected, based upon current trends, that such items
as real estate taxes, maintenance, labor and other related expenses will
increase or decrease in the future.
March 14, 1995
804 WEST PARK AVENUE. BUILDING C. OCEAN. NEW JERSEY 07712 • TEL 906-493-0623 • FAX 906-493-1722
154
ESTIMATED OPERATING BUDGET FOR 1995
BASED UPON 587 HOMES AND 1995 ESTIMATED COSTS
RECEIPTS
Maintenance Fees (Note 1)
BUDGETED EXPENSES
Trash Collection (Note 2)
Ground Maintenance (Note 3)
Fire Hydrants (Note 4)
Street Sweeping (Note 5)
Snow Clearing (Note 6)
Administrative (Note 7)
Capital Replacement Reserves for
Common Property (Note 8)
TOTAL EXPENSES
$412,639
$ 60,438
169,760
6,974
916
43,180
95,658
35,713
$412,639
KINAS & DRESKIN
155
EXPLANATORY NOTES TO ESTIMATED OPERATING BUDGET
NOTE 1 -
MAINTENANCE FEES ($58.58/unit/BO-)
Monthly fees based on 587 units for the year.
NOTE 2 -
TRASH COLLECTION ($8.58/unit/mo.)
Trash is picked up twice per week.
Glass, plastics, and bundled newspapers are picked up
once every two weeks.
NOTE 3 -
GROUND MAINTENANCE ($24 -10/unit/mo.)
Ground maintenance includes mowing and edging of lawn
areas and maintenance of traffic islands.
NOTE 4 -
FIRE HYDRANTS ($0.99/unit/mo.)
Cost of maintaining fire hydrants. Cost includes
minimum water usage as a flushing expense.
NOTE 5 -
STREET SWEEPING ($0.13/unit/mo.
Cost of cleaning the streets of sand in the spring.
NOTE 6 -
SNOW CLEANING ($6.13/unit/mo.)
Snow clearing from streets and sidewalks. Snow clearing
occurs when accumulations reach 2 inches or more.
NOTE 7 -
ADMINISTRATIVE EXPENSES ($ 13.58/unit/mo.)
Audit
$ 2,358
Stationary
2,358
Newsletters
2,358
Postage
1,184
Legal Expense
1,087
Management
48,082
Lock Box and Bank Fees
1,629
Insurance
34,169
Other Expenses
2,433
TOTAL ADMINISTRATIVE EXPENSES
$95,658
KINAS & DRESKIN
156
EXPLANATORY NOTES TO ESTIMATED OPERATING BUDGET
NOTE 8 - CAPITAL RESERVES ($5.07/unit/mo.)
Road resurf. 121,886 sq yds $4.40/sq yd 536,298
Curb replac. 52,339 lin ft 8.50/lin ft 444,882
20yrs
50yrs
TOTAL
$26,815
8,898
$35,713
$35,713 = $60.84 = S5.07 per unit per month
587 Units
KINAS & DRESKIN
157
EXHIBIT 15
Agreement of Sale
158
159
NOTICE TO THE PURCHASER:
YOU HAVE THE RIGHT TO CANCEL THIS CONTRACT OR AGREEMENT BY SENDING OR
DELIVERING WRITTEN NOTICE OF CANCELLATION JO THE DEVELOPER BY MIDNIGHT
OF THE SEVENTH CALENDAR DAY FOLLOWING THE DAY ON WHICH IT IS EXECUTED.
SUCH CANCELLATION IS WITHOUT PENALTY AND ALL MONIES PAID BY YOU SHALL
BE PROMPTLY REFUNDED IN THEIR ENTIRETY.
NOTICE TO THE PURCHASER AND SELLER:
WITHIN THE FIRST THREE BUSINESS DAYS OF THIS SEVEN DAY PERIOD, YOU MAY
CHOOSE TO CONSULT AN ATTORNEY WHO CAN REVIEW AND CANCEL THE
CONTRACT. SEE SECTION 7 ON ATTORNEY REVIEW FOR DETAILS.
AGREEMENT OF SALE
U.S. Home Corporation, 800 West Main Street, Freehold, New Jersey 07728 ("Seller") agrees
to sell the property listed below upon the following terms and conditions:
DATE OF AGREEMENT_____________
PURCHASER ______________________
______________________
______________________
Telephone Number:
Work:_________ _ Home:________ _
("Purchaser")
PURCHASE PRICE:
Base Price $__________
Extras
$__________
CLOSING DATE: On or about _____________
as set out in Paragraph 10
PROPERTY: Greenbriar at Whittingham
Model:_______________________________
Lot:____________ Block:_____________
Section: ____________ on map entitled
"Final Subdivision Plan"
prepared by
filed in the Middlesex County
Clerk's Office on
as Map
No.
File No.
and
$__________
$__________
Purchase Price
$__________
("Purchase Price")
Municipal
Lot: _______________ Block: ____________
("Property")
Page 1 of 14
160
TERMS:
8y deposit, receipt of which is
acknowledged (Including any
non-binding reservation
deposit) to be held in escrow
as set out 1n Paragraph 4 $ __________
("Deposit Honey")
Mortgage:
Amount
$ ______________
Interest Rate
______________
or prevailing rate of interest
Number of Years Payout: __________
Points paid by Purchaser __________
Application Fee:
________________
Additional cash or check to be
paid on or before the ______
day of ____________________,
19 ___.
$ _________
INSULATION:
Exterior Walls:
Type_________________________
Thickness _____________________
R-Value ______________________
Ceilings:
Type:_________________________
Thickness:____________________
R-Value: _____________________
Proceeds from purchase
money mortgage
$ _________
Balance at closing in cash,
certified check or cashier's
check
$ _________
Purchase Price
$ _________
NOTICE TO THE PURCHASER: YOU HAVE THE RIGHT TO CANCEL THIS AGREEMENT
BY SENDING OR DELIVERING WRITTEN NOTICE OF CANCELLATION TO THE SELLER
BY MIDNIGHT OF THE SEVENTH CALENDAR FOLLOWING THE DAY ON WHICH IT WAS
EXECUTED. SUCH CANCELLATION IS WITHOUT PENALTY AND ALL MONIES PAID BY
YOU SHALL BE PROMPTLY REFUNDED IN THEIR ENTIRETY.
IN WITNESS WHEREOF, the undersigned have caused this document to be signed and
sealed, or caused its corporate seal to be affixed to it, signed by its proper officers, the day and
year first above written.
By:
By: ___________________________
U.S. Home Corporation,
a Delaware Corporation
By:_____________________________
SALES CONSULTANT
Date:
WITNESS OF PURCHASER;
PURCHASER
Date:
PURCHASER
ATTEST:
This Agreement of Sale is subject to Terms and Conditions on previous and other pages.
Page 2 of 14
161
TABLE OF CONTENTS
Subject
Paragraph
Number
Property............................................ 1.
Title................................................... 2.
Purchase Price.................................. 3.
Deposit Money.................................. 4.
Mortgage........................................... 5.
Charges at Closing............................ 6.
Attorney Review................................ 7.
Insulation........................................... 8.
Representation by Counsel............... 9.
Closing of Title...................................10.
Notices...............................................11.
Assignment........................................12.
Adjustments.......................................13.
Assessments..................................... 14.
Fire and Other Casualty.................... 15.
Subordination.................................... 16.
Default By Seller................................17.
Default By Purchaser........................ 18.
Subject
Paragraph
Number
Purchaser's Representations............ 19.
Landscaping ..................................... 20.
No Cloud on Title; Liens.................... 21.
Homeowner's Warranty..................... 22.
Delay in Completion.......................... 23.
Possession........................................ 24.
Receipt of Documents...................... 25.
Construction and
Changes............................................ 26.
License.............................................. 27.
Color Selections, Extras
and Options....................................... 28.
Pre-Closing Inspection...................... 29.
General Provisions............................ 30.
Entire Agreement.............................. 31.
Contingency...................................... 32.
WITNESS THAT:
1.
PROPERTY. Seller shall sell and Purchaser shall buy the Property set forth on the cover
sheet pursuant to this agreement of sale ("Agreement"). As part of the Property there is or will be
erected a new dwelling, substantially similar to the model described or. the cover sheet of this
Agreement. Purchaser will also become and be accorded all the rights and obligations as a member of
the Whittingham Homeowner's Association, Inc., the Greenbriar at Whittingham Community
Association ana the Greenbriar Golf Course Association, Inc. ("Associations") as set forth in the
Declaration of Covenants and Restrictions ("Declaration") for Greenbriar at Whittingham
("Development") and the By-Laws of the Associations.
2.
TITLE. At dosing of title Seller shall deliver a Bargain and Sale Deed with Covenants
Against Grantor's Acts conveying the Property, along with a seller's affidavit of title arc a joint venture
resolution to sell. Title shall be good and marketable such as will be insurable at regular rates by
Stewart Title Guaranty Company, free ana clear of all liens, and free of encumbrances, except as
follows, provided the following exceptions do not render title uninsurable at regular rates by Stewart
Title Guaranty Company or prevent the use of the Property as a single family dwelling:
2.1 All covenants, agreements, easements, declarations, reservations and consents of record.
Page 3 of 14
162
2.2
Restrictions or easements, 1f any, required to be placed or placed upon the Property by
any federal, state or municipal agency or government subdivision or by any predecessor 1n title to the
Seller, including, without limitation, zoning ordinances and any other act or ordinance affecting the use
of, and improvements to, the Property;
2.3
All rights of utility and cable communications companies to place and maintain pipes,
poles, cables, wires and other appurtenances over, on or under the Property;
2.4
courses;
Easements with respect to public or private sewer, storm sewer or surface water
2.5
Any other restrictions, easements, conditions, agreements or provisions affecting the title
or use of the Property, or affecting Improvements to the Property. This includes any instruments,
restrictions, easements, conditions, agreements or provisions or other matters existing which:(a) do not
apply to the Property although constituting a technical exception to Its title; or,(b) do not apply to the
Property but also apply generally to the parcels and tracts designated for residential development
belonging to the Seller or Seller's predecessor in title and do not materially and adversely affect
Purchaser's ability to use the Property as a single family residential dwelling;
2.6
Rights, interests and obligations as a member of the Association in the Common
Property of the Association contained in the provisions of the Declaration of Covenants and
Restrictions, the Certificate of Incorporation and the By-Laws of the Association;
2.7
Such state of facts as an accurate survey may disclose;
2.8
Standard exceptions in a title policy;
2.9
Any state of facts arc inspection of the Property might disclose; and
2.10
Any liability of the Property for any additional assessment for real property taxes.
3.
PURCHASE PRICE. Purchaser shall pay and satisfy the Purchase Price as stated in the
cover sheet of this Agreement.
4.
DEPOSIT HONEY. All deposit monies or down payment ("Deposit Money") shall be held
in escrow in an escrow account established by Stewart Title Guaranty Company at First Fidelity Bank.
N.A., 72 W. Main Street, Freehold, New Jersey 07728 entitled U.S. Home Escrow Account, Account
No. 3000399281. Seller may, at Seller's option, direct Stewart Title Guaranty Company to place the
Deposit Money m either an interest or non-interest bearing escrow account. If placed in an interest
bearing account, interest shall accrue to the benefit of Seller. After the expiration of the seven (7) day
rescission period as set forth above and in paragraph 7, the Deposit Money may be released to Seller
since Seller has placed a bond or other guarantee acceptable to the Division of Codes and* Standards,
5ure3u of Homeowner Protection. Otherwise, the Deposit Money shall be held in escrow as provided
until closing of title or termination of this Agreement.
5. MORTGAGE. This Agreement is contingent upon Purchaser obtaining a mortgage
commitment according to the terms, or better terms, as set forth in the cover sheet of this Agreement.
Purchaser has the option of obtaining his own financing or authorising Seller to obtain such financing.
Page 4 of 14
163
5.1
FINANCING ARRANGED BY SELLER. If Purchaser desires to arrange mortgage
financing, Purchaser hereby appoints Seller as Purchaser's agent to arrange for a mortgage on the
terms, or better terms, as set forth on the cover of this Agreement. Purchaser shall fully cooperate with
Seller in order to obtain such a mortgage. Purchaser shall accept such a mortgage from the lending
party designated by Seller. Purchaser shall complete all necessary forms for the mortgage loan within
fourteen (14) days of the date of this Agreement, shall furnish complete and truthful information on all
such documents, shall use due diligence in pursuing this mortgage application, shall comply with all
requests by the Seller or lending institution, shall do everything necessary to obtain this loan and shall
notify Seller immediately of any change 1n Purchaser's financial condition or employment. Provided
Purchaser complies with this Agreement, Seller shall pay all mortgage application fees, processing fees
and any additional items required by the lending institution with the exception of discount points,
origination fees, prepaid interest charges and escrow fees which shall be the sole cost and expense of
Purchaser. If Purchaser does not perform any of Purchaser's obligations as specified in this Paragraph,
or 1f Purchaser becomes bankrupt or insolvent or assigns assets for the benefit of Purchaser's
creditors, Purchaser shall be deemed in default of this Agreement pursuant to the provisions of
Paragraph 18.
If Purchaser does not obtain a mortgage commitment through the Seller within forty-five (45)
days from the date of this Agreement, Purchaser has the right to terminate this Agreement upon written
notice to Seller. If the Agreement is so terminated, Purchaser's exclusive remedy shall be the return of
all Deposit Money without interest. There shall be no further liability of any Kind on the part of Seller,
and this Agreement shall be null and void and of no further force and effect.
5.1
FINANCING ARRANGED BY PURCHASER. If Purchaser elects to obtain his own
financing, Purchaser shall notify Seller in writing of Purchaser's intention to obtain his own financing on
the above terms and conditions, said notification to be received by Seller within twelve (12) days of the
date of this Agreement. Purchaser shall use his best efforts to obtain a mortgage and must supply a
copy of all mortgage applications to Seller within fourteen (14) days of the date of this Agreement.
Purchaser shall have forty-five (45) days from the date of this Agreement to obtain a firm written
commitment from a lending institution.
If Purchaser does obtain a mortgage commitment, Purchaser shall promptly notify Seller in
writing of such receipt and supply a copy of th,is mortgage commitment to Seller. If Purchaser later
withdraws his mortgage application or later informs the lending institution that the Purchaser does not
want the mortgage, this shall not release Purchaser from Purchaser's responsibility to carry out the
terms and conditions of this Agreement. Purchaser's receipt of a mortgage commitment on the above
terms shall constitute satisfaction of this mortgage contingency.
Page 5 of 14
164
If Purchaser has not obtained such a mortgage commitment within forty-five (45) days from the
date of this Agreement, Purchaser shall notify Seller in writing no later than forty-five (45) days from the
date of this Agreement of Purchaser's inability to obtain a mortgage. At the time of such notification,
Purchaser shall authorize Seller and appoint Seller as his agent to arrange for a mortgage on the terms
and conditions currently being offered with the lending party or institution of Seller's choice. Seller shall
have an additional forty-five (45) days (for a total of ninety (90) days from the date of the Agreement) to
obtain a firm mortgage commitment for the Purchaser on the terms and conditions currently being
offered. Purchaser shall fully cooperate with Seller in making any applications, provide all necessary
information, do everything necessary to obtain the loan, and notify Seller immediately of any change in
his financial condition or employment. In the event Seller cannot obtain for Purchaser a mortgage
commitment within ninety (90) days from the date of this Agreement, either Seller or Purchaser, upon
written notice to the other party, shall have the right to terminate this Agreement without penalty at
which time all Deposit Money shall be returned to the Purchaser without interest, and this Agreement
shall be considered null and void. Return of the Deposit Money without interest shall be Purchaser's
sole and exclusive remedy. If the commitment for the mortgage loan referred to in this Agreement is not
obtained because information supplied by the Purchaser proves to be incorrect, or if Purchaser shall
default in any of the provisions of this Paragraph 5, the Seller shall have the right to terminate this
Agreement and shall be entitled to receive from Purchaser ten (10%) percent of the Purchase Price.
5.3 REPRESENTATION BY PURCHASER. Purchaser warrants that all representations made
by him concerning his qualifications to obtain a mortgage commitment under the terms stated in this
Agreement are, to the best of his knowledge, true. If Purchaser has made any willfully false statements,
Purchaser shall be in default of the Agreement.
6. CHARGES AT CLOSING. Purchaser shall reimburse Seller the amount set forth on the cover
sheet at time of closing title. Seller shall supply at Seller's cost the following items or services: (1)
survey of Property without stakes; (2) title binder for the Property (and title insurance policy for the
Property); (3) deed; (4) recording of deed; and (5) realty transfer fees. Purchaser shall pay the
Association at closing a one-time contribution to the working capital of the Associations equal to the
greater of five hundred ($500.00) dollars or one sixth of the current annual Assessment Dues, which
contribution shall not be refundable or transferable and may be utilized for any lawful purpose which the
Board may deem appropriate. In the event Purchaser elects to obtain his own insurance, title
insurance, survey, etc., Seller will have no obligation to pay for those items or to allow a credit for said
items.
7. ATTORNEY REVIEW PROVISION. Purchaser may terminate this Agreement within seven
(7) days from the date of this Agreement for any reason. The right to review of this Agreement by an
attorney is subject to the following conditions:
7.1 STUDY BY ATTORNEY. Purchaser may choose to have an attorney study this Agreement.
If an attorney is consulted, the attorney must complete his or her review of the Agreement within a
seven (7) day period. This agreement will be legally binding at the end of this seven (7) day period,
unless an attorney for the Buyer reviews and disapproves of the Agreement.
Page 6 of 14
165
7.2
COUNTING THE TIME. This seven (7) day review period Includes the three (3) day
review period for attorney review normally required. The three (3) day review period is calculated by
counting the three (3) days from the delivery of the signed Agreement to the Purchaser and Seller with
Saturdays, Sundays or legal holidays excluded. Purchaser and Seller may agree in writing to extend
the seven (7) day period for attorney review.
7.3
NOTICE OF DISAPPROVAL. If an attorney for the Purchaser reviews and disapproves
of this Agreement, the attorney must notify the Realtor(s) 1f any, and Seller within the seven (7) day
period. Otherwise, this Agreement will be binding as written. The attorney must send notice of the
disapproval to the Realtor(s) if any, and to the Seller by certified mail, by telegram, or by delivering it
personally. The telegram or certified letter will be effective upon delivery to the office of the Realtor(s) if
any, and of the Seller. The attorney may also, but need not, inform the Realtor(s), if any, and Seller of
any suggested revisions in the Agreement that would make it satisfactory.
*This right does not affect or impair the Purchaser's seven (7) day right to rescind this
Agreement, as set forth in Paragraph 32 of this Agreement.*
8. INSULATION. Exterior walls and ceilings 1n the Property will be insulated with a type of
insulation and to a thickness as set forth 1n this Agreement. According to the manufacturer, this
thickness will result 1n the Rvalue as set forth on the cover sheet of this Agreement.
9. REPRESENTATION BY COUNSEL. In connection with this transaction Seller has retained Its
own counsel, and this separate counsel may also represent the prospective mortgagee in the mortgage
closing. Purchaser has the right to procure independent counsel of his own choosing at any time to
represent Purchaser. Neither Seller's attorney nor mortgagee's attorney represents Purchaser. Seller
hereby advises Purchaser to retain separate counsel to represent Purchaser.
10. CLOSING OF TITLE.
10.1 Title shall be closed at Seller's offices, the office of Seller's attorney or at other such
location as Seller may designate. The actual closing date ("Closing Date") is estimated to be the "on or
about" date set forth on the cover sheet of this Agreement. The actual Closing Date may differ from the
"on or about" date due to delays caused by Seller's contractors or subcontractors, inclement weather,
labor disputes, utility hook-ups, suppliers of materials to Seller, governmental regulation, or shortage of
labor and/or materials. Seller shall, in Seller's sole discretion, determine the Closing Date based on
when the permanent certificate of occupancy or temporary certificate of occupancy is issued for the
Property. If the dwelling to be erected on the Property is not complete and ready for occupancy on the
"on or about" date estimated for closing of title, Purchaser will accept the deed and pay the
consideration on the date when the Property is completed and is ready for occupancy, without
abatement, i.e. reduction in the purchase price, subject to the provisions of Paragraph 24 of this
Agreement. Closing shall occur at least ten (10) business days after the date of written notice (which
may be by regular mail) from Seller to Purchaser notifying Purchaser that a permanent or temporary
certificate of occupancy has been issued by the municipality, time being of the essence as to the
Purchaser's obligation to close. "Time Being of the Essence" means that if the Purchaser does not
close within the required time period, the Purchaser will not have the right to extend the closing date
and shall be deemed to be in default.
Page 7 of 14
166
Seller shall designate in the written notice the time and place of closing. If Seller is ready to close on
this date and if Purchaser fails to close at the date, time and place specified by Seller, Seller shall have
the option of either declaring this Agreement in default pursuant to Paragraph 18 or charging Purchaser
an amount equal to seventy-five ($75.00) dollars per day commencing on the fifth business day after
the closing date set forth in the written notice from Seller until, and including, the date of actual title
closing. This sum of seventy-five ($75.00) dollars per day is intended to be liquidated damages to
compensate Seller because Seller's actual damages incurred due to Purchaser's delay in closing of title
are not measurable. This sum shall be due and payable in full at closing and shall not exceed ten
percent (10X) of the Purchase Price.
10.2 If Purchaser or Purchaser's mortgagee requires that the closing of title be held other than
at the offices of Seller or Seller's attorney, Purchaser shall reimburse Seller at closing for Seller's
attorney's fees incurred not to exceed three hundred ($300.00) dollars because the closing was held
other than at the offices of Seller or Seller's attorney. Seller's attorney is responsible for preparing the
deed, including the affidavit of consideration, and affidavit of title, and joint venture resolution to sell.
10.3 If Purchaser, Purchaser's mortgagee or Purchaser's title insurance company requires
Seller's attorney to prepare additional documents, such as a RESPA statement, or perform additional
services, such as preparing checks, Purchaser shall reimburse Seller at closing for Seller's attorney's
fees incurred. All these attorney's fees must be reasonable and may not in total exceed three hundred
($300.00) dollars.
10.4 Seller shall not be liable for any liability, claim or damage due to any delay in completion of
the Property, including, but not limited to, expenses incurred by Purchaser for the storage of household
goods or temporary lodging and shelter. In no event shall Purchaser be permitted to make time of the
essence for the closing and any such notice shall be without any force and effect. Purchaser shall
release, indemnify and hold Seller harmless from any and all liability for any costs, including attorney's
fees and costs, incurred by Purchaser resulting from any delay in completion of the Property, delay in
date of closing, and/or delay in Purchaser taking occupancy of or title to the Property. If at time of
closing there is work not yet completed on the Property, Purchaser agrees that no money will be
withheld or held in escrow to guarantee completion of the work, and that inclusion of such items on a
"walk-through" list will be sufficient. This provision shall survive the delivery of the deed.
11. NOTICES. Except as otherwise provided in this Agreement, all notices that are required by
law to be served are to be sent to Purchaser or Seller by certified mail, return receipt requested, at the
address set forth in this Agreement or at any other address Purchaser or Seller may reasonably
designate.
12. ASSIGNMENT. Purchaser shall not assign, sell or in any manner transfer this Agreement or
any right, title and interest in it without first obtaining the prior written consent of Seller, which Seller
may exercise in Seller's sole and absolute discretion. Purchaser agrees that no assignment, sale or
transfer by Purchaser of this Agreement, or any right, title or interest conveyed in it. shall be valid, nor
shall it be recognized by Seller unless endorsement by written consent is executed by Seller on
Purchaser's copy of this Agreement. Subject to these provisions regarding assignment by Purchaser,
this Agreement shall extend to and be binding upon the heirs, executors, administrators and
successors and assigns of the respective parties.
Page 8 of 14
167
13. ADJUSTMENTS. Taxes, utility charges, insurance premiums, if any, and the Association
Dues shall be apportioned as of the Closing Date, or as of the date of occupancy, whichever occurs
first.
14. ASSESSMENTS. If at the time for delivery of the deed, the Property or any part of 1t has
been affected by an assessment or assessments for off-site improvements, including street
construction, sewer, water, electricity and curbs, payable 1n annual installments, then for the purposes
of this Agreement all the unpaid installments of any such assessment, including those to become due
and payable after the delivery of the deed, shall be deemed to be due and payable and to be liens (i.e.
legal claims) upon the Property. These assessments shall be paid and discharged by the Seller upon
the delivery of the deed. Unconfirmed improvements or assessments, if any, shall be paid and allowed
by the Seller on account of the Purchase Price, if the improvement or work has been completed on or
before Closing Date. Seller shall be liable and responsible for any roll-back taxes assessed under the
Farmland Assessment Act of 1964. The provision related to roll-back taxes shall survive delivery of the
deed.
15. FIRE AND OTHER CASUALTY. Partial loss or damage to the Property by fire, storm or
other casualty between the date of execution of this Agreement and Closing Date shall not void or
impair this Agreement, but all such damage to the Property by way of fire, storm or other casualty until
the Closing Date 1s to be the responsibility of the Seller. In the event of the substantial or total loss as a
result of the hazards mentioned above, Seller shall have the option to repair all damage at his own cost
or to refund all Deposit Money without interest and shall, within sixty (60) days of the date of the
occurrence of the loss, notify Purchaser of Seller's intent to either repair the damage or to cancel this
Agreement. In the event of the loss or damage, as a result of these hazards, the time for completion
shall be extended for up to six (6) months from the date of the occurrence of the loss to repair the
damage. If Seller does not repair the damage within six (6) months of the date of the loss or damage,
either party shall have the option to cancel this Agreement, and Purchaser's sole and exclusive remedy
shall be the refund of the Deposit Money, without interest.
16. SUBORDINATION. Purchaser's rights under this Agreement are expressly subordinated to
any mortgage new on the Property, hereafter to be placed on the Property, or to any advances made
on the Property. Any mortgage or lien encumbering the Property shall be satisfied by Seller from the
proceeds of sale at the closing of title.
17. DEFAULT BY SELLER. If Seller, for any reason other th,an Seller's arbitrary and willful
refusal to close, cannot or does not construct or complete the Property or convey title as above
provided, or obtain a certificate of occupancy for the Property within three hundred sixty-five (365) days
from the date of this Agreement. Seller shall return the Deposit Money without interest.
Page 9 of 14
18.
DEFAULT BY PURCHASER. Should Purchaser fail to make payment of any monies,
default in any of the conditions or covenants of this Agreement, or fail for any reason to close title in
accordance with terms of this Agreement, Seller will be entitled to retain and receive from Purchaser
ten percent (10X) of the Purchase Price. If Purchaser has not deposited with Seller the ten percent
(10X) balance of the Purchase Price, including the amount of any extras or changes installed by Seller,
Purchaser shall forthwith pay Seller the balance of the ten percent (10%) of the Purchase Price,
including the amount of any extras or changes Installed by Seller. Seller and Purchaser agree that the
damages occasioned by reason of Purchaser's breach of this Agreement are not measurable, and that
the sums to be paid to Seller are the liquidated damages for the charges and expenses which Seller
has sustained. At the time of this default this Agreement shall become null and void, except for those
portions containing Seller's rights against Purchaser.
19.
PURCHASER'S REPRESENTATIONS. The Purchaser represents that:
19.1 Purchaser is not signing this Agreement as an agent for any undisclosed principal, but as
the actual party intending to purchase the Property;
19.2 Purchaser has sufficient funds available, together with the proceeds of any mortgage to be
obtained, to consummate this transaction and to fulfill all the terms and conditions of their Agreement;
19.3 Purchaser has completed or will complete all mortgage loan applications and all
documents or forms associated with the mortgage loan application necessary to fulfill this Agreement
both truthfully and accurately; and
19.4 Purchaser is capable of substantiating by competent evidence all representations that
Purchaser made or will make on such mortgage loan applications and on other documents or forms
associated with this Agreement or the mortgage loan application.
20.
LANDSCAPING. Seller makes no representations regarding the condition of trees or any
other vegetation or growth on the Property. Seller shall not be responsible for the survival of any trees,
vegetation or growth prior to closing of title or after closing of title. Seller shall not be responsible for the
replacement of vegetation, growth or seed damaged or destroyed in any manner.
21.
NO CLOUD ON TITLE; LIENS. Purchaser will not file this Agreement 1n any court or
public office. Nothing contained in this Agreement shall operate to bind, encumber or cloud the title to
the Property in the event that Purchaser shall file this Agreement contrary to this paragraph 21. If this
Agreement is terminated in any manner stipulated in this Agreement, then Purchaser shall immediately
return all executed copies of this Agreement in Purchaser's possession to the Seller. If the Property is
affected by any lien at time of closing, such lien shall not constitute a title defect but shall be discharged
from the proceeds of sale.
Page 10 of 14
22. HOMEOWNER'S WARRANTY. Seller will be a member of the 2-10 Home Buyers Warranty
Program (2-10) under the New Home Warranty and Builder's Registration Act N.J.S.A. 46:38-1 et seq.
2-10 which provides Purchaser with a written warranty from the seller and with Insurance which backs
Seller's warranty and gives extended insurance coverage on major structural defects. From the date of
occupancy or delivery of title, whichever comes first, Seller warrants for a period of one year that the
home shall be free from quality standard defects, appliance, fixture and equipment defects, mechanical
systems defects and major construction defects. For a period of two years, Seller warrants that the
plumbing, electrical and mechanical systems shall be free from defects. For a period of ten years, the
home shall be free from major construction defects (N.J.A.C. 5:25-3.2). If Seller cannot or will not
perform his 2-10 warranty obligations, the insurance company assumes the responsibility, less a
$250.00 deductible.
Seller expressly warrants that any home will substantially conform to the model, description or
plans used to induce the Purchaser to enter Into an Agreement to purchase a home unless noted
otherwise in the Agreement, pursuant to N.J.A.C. 5:26-7.3.
In addition, the Developer expressly warrants that the common facilities within the Development
will substantially conform to the description contained in the advertising literature. With regard to such
common facilities, the Developer warrants the construction of the common facilities for a period of two
years from the date of completion of each of the common facilities, and also warrants that the common
facilities are fit for their intended use. The Developer agrees to repair or correct any defect in
construction, material or workmanship in the common facilities for the Development within a reasonable
time after the Developer receives written notification of the defect.
Additionally, the Developer warrants the following to be free from defect due to material and
workmanship for a period of one year from the date of possession or settlement, whichever first occurs:
outbuildings, driveways, walkways, patios, retaining walls and fences, if any. The Developer also
warrants that all drainage is proper and adequate and that all off-site improvements, if any are free from
defects for a period of one year from the date of construction. The Developer warrants that the
individual Homes are fit for their intended use.
While the Developer maintains a majority of the Board of Directors, the Developer shall take no
action which adversely affects the rights of the Home Owners pursuant to N.J.A.C. 5:25-5.5. Claims
relative to defects in the Common Property shall be processed in accordance with N.J.A.C 5:25-5.5.
Page 11 of 14
170
23.
DELAY IN COMPLETION. If completion of the dwelling on the Property is delayed due
to Seller's contractors or subcontractors, inclement weather, labor disputes, utility hook-ups, supplies of
materials to Seller or Its contractors or subcontractors, governmental regulation or requirements, labor
and material shortages or for any other reason (other than Purchaser's or Seller's willful and arbitrary
refusal to close) for a period in excess of one hundred and eighty (180) days from the "on or about"
Closing Date set forth on the cover sheet of this Agreement, then Purchaser shall have the right to
terminate this Agreement. Purchaser shall give three (3) days written notice of such election to
terminate to the other party. Seller shall return to Purchaser all Deposit Honey without interest. Return
of the Deposit Money without interest shall be Purchaser's sole and exclusive remedy. There shall be
no further liability of any kind on the part of Seller to Purchase, and this Agreement shall be null and
void and of no further force and effect. For the purpose of this paragraph, the dwelling shall be deemed
"completed" when the Township of Monroe issues a permanent or temporary certificate of occupancy
for the dwelling. Purchaser shall use due diligence in cooperating with Seller to obtain a certificate of
occupancy.
24.
POSSESSION. Purchaser may enter Into and upon the Property and take possession
upon the delivery of the deed and closing of title and upon full payment of the balance of the monies
due under this Agreement, together with all extras and closing charges, unless otherwise agreed upon
1n writing between the parties. Neither Purchaser nor its agents, guests or licensees, shall enter onto
the Premises prior to closing of title except in accordance with Paragraph 29 of this Agreement.
25.
RECEIPT OF DOCUMENTS. Purchaser acknowledges receipt of a copy of the Public
Offering Statement of Seller pertaining to the Development, which includes a copy of the Declaration
and a copy of the Association By-laws. Purchaser agrees to comply with all the terms and conditions of
the Declaration, the By-Laws and Rules and Regulations of the Association.
Page 12 of 14
26. CONSTRUCTION AND CHANGES. Seller will construct or cause to be constructed on the
Property a new dwelling unit of the same model style as set forth on the cover sheet of this Agreement.
Seller, however, reserves the right to substitute materials of similar quality to those used 1n the
construction and finishing of the model. Seller shall have the right to make any change in construction
found to be necessary 1n the course of construction, subject to applicable building codes. All furniture,
built-ins, drop ceilings, decorative items, recessed lighting or other upgraded lighting fixtures, upgraded
flooring, ceramic tile, or carpeting, optional appliances, platforms, draperies, window treatments, wall
coverings and all other devices, such as radio and electronic equipment, exhibited in the model, except
as specifically set forth in this Agreement, are for exhibition purposes only and are not Included in this
sale.
The Purchaser acknowledges that the terms of this agreement supersede any newspaper or
other advertisement, advertising literature, brochures, floor plans, renderings and the like which are
displayed by the Seller as these are estimates only and subject to modification.
27. LICENSE. Purchaser authorizes and grants to Seller the irrevocable right for two years from
the closing of title or until completion of the Development, whichever occurs first to enter into, upon,
over or under the property, for the completion of construction, repair, emergency matters or pursuant to
governmental order or requirement. This clause shall survive delivery of the deed.
28. COLOR, SELECTIONS, EXTRAS AND OPTIONS. All Selections and options regarding
colors or extras, if offered by Seller, shall be made, obtained and/or purchased through the Seller or its
designated subcontractors or suppliers. choices and selections shall be promptly made by the
Purchaser within five (5) calendar days from notice (by regular mail) from Seller, and this selection shall
be made from samples and lists supplied by Seller. At Seller's option, Purchaser shall pay for options
and extras upon selection of said option and/or extra. In the event Purchaser fails to make such
selections and choices of colors or kinds of materials within the time period, Purchaser shall be deemed
to have waived this choice, and the Seller may select such options and extras on behalf of the
Purchaser and complete the Property. Seller shall not be responsible for any difference or change in
color, tint, shading, discoloration, or toning between that of samples of products displayed to Purchaser,
the merchandise ordered, and that delivered and/or installed. Seller shall in no way be responsible for
any product or selection made by Purchaser through anyone other than Seller's suppliers. Seller shall
not be responsible for the installation of any other product selected and installed by Purchaser.
29. PRE-CLOSING INSPECTION. Within seventy-two (72) hours prior to closing of title
Purchaser shall be given an opportunity to perform a pre-closing inspection of the dwelling with Seller
or Seller's representative during normal business hours, at which time a list of items requiring
completion, adjustment or repair will be compiled and signed by both Purchaser and Seller. Seller
agrees to complete the items on the list within a reasonable time, weather permitting. Under no
circumstances shall any escrow be held for any incomplete items. If Purchaser does not inspect the
dwelling prior to closing, Purchaser shall have waived his right to a pre-closing inspection. It shall be
deemed that all items in the dwelling are complete.
Page 13 of 14
30.
GENERAL PROVISIONS. The following provisions also apply to this Agreement:
30.1 Seller shall not be responsible for any change in color selections in the event Purchaser
changes same after the time in which said color selections are initially made by Purchaser in writing. If
Seller fails to comply with a color change after the initial selection, Purchaser agrees to be bound by his
original color selections.
30.2 Purchaser represents that Purchaser has not engaged the services of any realtor or real
estate salesperson in connection with this transaction. Purchaser shall indemnify and hold Seller
harmless against any claim by any realtor or real estate salesperson in connection with this transaction.
This provision shall survive delivery of the deed.
30.3 Seller's present intent is to sell all houses in the Development. Purchaser acknowledges
that the Seller shall have the right to rent any house in the Development not sold, it being understood
that the Seller shall pay, for each until so rented, a maintenance fee to the Association based on the
percentage interest of the house being rented.
31.
ENTIRE AGREEMENT. This Agreement and the application for registration contain the
entire agreement between the Purchaser and Seller, and no agent, representative, salesman or officer
of the Seller has authority to make or has made any statement, agreement or representations, either
oral or written, modifying, adding to or changing the terms and conditions of this Agreement. No dealing
between the parties or their agents shall be permitted to contradict, vary, add to or modify these terms.
Seller is not responsible or liable for any agreement, conditions or stimulation net specifically set forth in
this Agreement relating to or affecting the Property. No modification of this Agreement shall be binding
unless in writing and signed by the Purchaser and Seller. No statements, agreements, or
representations, whether relating to title or otherwise shall survive the execution and delivery of the
deed, unless specifically set forth in writing and delivered at the time of delivery of deed, or as
expressly so provided in the Agreement.
32.
CONTINGENCY. This agreement is contingent upon the approval of Seller's Division
Officer within seven (7) days following the date on which Seller received a copy or copies of the
Agreement executed by Purchaser. In the event this approval is not receives within the seven (7) day
period, then either party shall have the right to terminate this Agreement upon written notice to the
other. If the Agreement is so terminated, the deposit shall be refunded to the Purchaser, this
Agreement shall be null and void and neither party shall have further claim against the other.
Page 14 of 14
173
EXHIBIT 18
Proposed Second Amendment and Supplement
for
Incorporation of New Phase
174
175
SECOND AMENDMENT AND SUPPLEMENT
TO THE
DECLARATION OF COVENANTS, EASEMENTS AND RESTRICTIONS
FOR
BY
U.S. HOME CORPORATION
A DELAWARE CORPORATION
DATED:
, 1995
RECORD AND RETURN TO:
Greenbaum, Rowe, Smith, Ravin & Davis
Attention: Wendell A. Smith, Esq.
Post Office Box 5600
176
SECOND AMENDMENT AND SUPPLEMENT
TO THE
DECLARATION OF COVENANTS, EASEMENTS AND RESTRICTIONS
FOR
THIS SECOND AMENDMENT AND SUPPLEMENT, made this _____ day of
______________ , 1995 by U.S. HOME CORPORATION, a Delaware
corporation, having an address at 800 West Main Street, Freehold, New
Jersey 07728 (the "Developer").
W I T N E S S E T H:
WHEREAS, the Developer is the owner of fee simple title to
certain lands and premises in Monroe Township, Middlesex County,
State of New Jersey, which lands and premises have been submitted to
a Declaration of Covenants, Easements and Restrictions for Greenbriar
at Whittingham (the "Declaration") dated December 14, 1994 and
recorded December 14, 1994 in the Office of the Clerk of Middlesex
County, in Deed Book 4204 at Page 199, et seq.; and
WHEREAS, pursuant to Section 2.02 of the Declaration, the
Developer may further amend and supplement the Declaration to
incorporate within the Development all or a portion of the remainder
of the Property described and shown as set forth in Exhibits A & B to
the Declaration; and
WHEREAS, pursuant to the Third Amendment and Supplement to the
Declaration of Covenants, Conditions and Restrictions for Whittingham
("WHOA Declaration") dated January 27, 1994 and recorded February 1,
1994 in the Office of Middlesex County Clerk in Deed Book 4124 at
Page 118 et seq. all portions of the Property lawfully incorporated
into the Development and any additional lands within the Entire Tract
with the exception of those lands which are ultimately developed for
the golf course and other non-residential purposes are automatically
subject to the WHOA Declaration; and
NOW THEREFORE, the Developer hereby amends and supplements the
Declaration as follows:
1. The Developer hereby incorporates all those lands described
in Exhibit A-l hereto entitled "Description - Greenbriar at
Whittingham, Village 1.3 Model Area" into the Development, as all
shown on that certain plan entitled "Final Subdivision Plat of
Greenbriar at Whittingham Village 1.3 Model Area" prepared by
177
Henderson & Bodwell, Worlds Fair Drive, Somerset, New Jersey dated
November 3, 1994, attached as Exhibit A-2; and
2. The Developer hereby incorporates all those lands described
in Exhibit B-l hereto entitled "Description - Greenbriar at
Whittingham, Village 2.2 - Phases C through H" into the Development,
as all shown on that certain Plan entitled "Final Subdivision Plat of
Greenbriar at Whittingham, Village 2.2" Phases C through H prepared
by Henderson & Bodwell, Worlds Fair Drive, Somerset, New Jersey dated
October 7, 1994 attached as Exhibit B-2;
3. The Developer declares that such improvements are and shall
be held, transferred, sold, leased, conveyed, occupied and used
subject to the covenants, restrictions, conditions, easements,
charges, liens and provisions set forth in the Declaration, as now or
hereafter amended, all of which are hereby incorporated by reference
as though fully set forth herein; and
4. Except as expressly modified herein, all other terms and
conditions of the Declaration shall remain in full force and effect
and the provisions hereof shall be deemed controlling.
IN WITNESS WHEREOF, the Developer has caused this instrument to
be executed the day and year first above written as duly authorized
by its corporate resolution.
ATTEST:
U.S. HOME CORPORATION, A Delaware
Corporation
Paul Rempe, Secretary
Gregory A. Snyder,
Division President
178
STATE OF NEW JERSEY
COUNTY OF
)
) SS:
)
BE IT REMEMBERED, that on this
day of
1995, Paul Rempe personally came before me and this person
acknowledged under oath, to my satisfaction, that:
,
(a)
this person is the Secretary of the corporation named
in the attached document;
(b)
this person is the attesting witness to the signing of
this document by the proper corporate officer who is
Gregory A. Snyder, the Division President of the
corporation;
(c)
this document was signed and delivered by the
corporation as its voluntary act duly authorized by a
proper resolution of its Board of Directors;
(d)
this person knows the proper seal of the corporation
which was affixed to this document; and
(e)
this person signed this proof to attest to the truth
of these facts.
Paul Rempe, Secretary
on this
day of
, 1995.
A Notary Public of the State
of New Jersey
179
EXHIBIT A-1
Description - Greenbriar at Whittingham, Village 1.3 Model Area
180
HENDERSON AND BODWELL
March 29, 1995
DESCRIPTION OF PROPERTY
REVISED LOT 39.01 BLOCK 48.35
GREENBRIAR AT WHITTINGHAM MODEL AREA
MONROE TOWNSHIP, MIDDLESEX COUNTY, NEW JERSEY
BEGINNING at a point on the Easterly right of way line of Whittingham Drive, 68 feet wide private road and
Lot I, Block 48.32, said point being the most Southwesterly corner of Block 48.35, New-Lot 40.01 (clubhouse site) as
more particularly shown on the hereinafter referenced filed plat, and from said beginning point running, thence;
The three following courses are along the common line of New Lot 40.01, Block 48.35.
1.
North 63 degrees 10 minutes 3l seconds East. 321.00 feet to a point, thence;
2.
South 26 degrees 49 minutes 29 seconds East, 298.43 feet to a point, thence;
3.
North 63 degrees 10 minutes 31 seconds East. 103.10 feet to a point, said point being the common corner of
Lot 17. Block 48 35. thence:
4.
Along the common line of said Lot 17. South 07 degrees I 3 minutes 35 seconds East. 435.63 feet to a point,
thence.
The four following courses are along the Northerly right of way line of said Winthrop Road, a 36 feet wide private road
and Lot 37. Block 48.35.
5.
South 85 degrees 00 minutes 00 seconds West. I 56 02 feet to a point of curvature, thence;
6.
On a curve to the left having a radius of 518 00 feet, an arc length of 62.03 feet, a central angle of 06 decrees
51 minutes 41 seconds to a point of tangency, thence;
7.
South 78 degrees 08 minutes 19 seconds West. 77.46 feel to a point of curvature, thence;
8.
On a curve to the right having a radius of 25.00 feet, an arc length of 38 02 feet, a central angle of 87 degrees
The two following courses art along the easterly right of way line of said Whittingham Drive.
9.
On a curse to the left having a radius of 354 00 feel, an arc length of 176.04 feet, a central angle of 12 degrees
10.
North 26 degrees 49 minutes 29 seconds West. 407.13 feet to the point and place of BEGINNING
Containing 5.203 Acres more or less
The above described premises is being subject to and together with any easements of record.
The above described premises being known as Lot 39.01. Block 48.35 as it appears on a map entitled "Final
Plat. Greenbriar at Whittingham Block 48.24 Lot 1, Block 48 35 Lots 39 & 40 and Block 48.40 Lot 14 Major
Subdivision situated in Township of Monroe, Middelsex County, New Jersey”. Prepared by Henderson and Bodwell.
1211 Worlds Fair Drive, Somerset, NJ 08873. Patrick L. Ilsley, PLS License No 35372. last revised 7-14-94 filed in
Middlesex County Clerk's Office on July 27, 1994 as Map number 5628 (3 sheets in file number 980
181
EXHIBIT A-2
Final Subdivision Plat of Greenbriar at Whittingham, Village 1.3
Model Area
182
EXHIBIT B-l
Description - Greenbriar at Whittingham, Village 2.2 Phases C
through H
184
Revised 3-23-95
Revised 1-10-95
DESCRIPTION OF PROPERTY
NEW LOT 2.01, BLOCK 48.26
GREENBRIAR AT WHITTINGHAM VILLAGE 2.2
MONROE TOWNSHIP, MIDDLESEX COUNTY, NEW JERSEY
BEGINNING at a concrete monument on the Northerly right of way line of Prospect Plains-Hoffman
Station Road, 72 feet in width, said point being the Southwesterly corner of Lot 1, Block 48.26 as more
particularly shown on the hereinafter referenced filed plan, and from said beginning point running, thence;
The four following courses are along the Northerly right of way line of said Prospect Plains -Hoffman Station
Road.
1.
North 76 degrees 14 minutes 01 seconds West, 439.79 feet to a concrete monument, thence;
2.
North 75 degrees 50 minutes 24 seconds West, 559.00 feet to a concrete monument, thence;
3.
North 75 degrees 56 minutes 58 seconds West, 169.09 feet to a concrete monument at the beginning of a
curve, thence,
4.
On a curve to the right having a radius of 40.00 feet, an arc length of 51.00 feet, a central angle of 73
degrees 02 minutes 55 seconds to a concrete monument to be set, thence;
The five following courses are along (he new Easterly right of way line of Jamesburg - Half Acre Road, (variable
width)
5.
North 02 degrees 54 minutes 03 seconds West, 1349.87 feet to a concrete monument to be set, thence,
6.
North 02 degrees 54 minutes 02 seconds West, 434.77 feet to a concrete monument to be set, thence;
7.
North 02 degrees 08 minutes 52 seconds West, 765.49 feet to a concrete monument to be set at the
beginning of June thence.
8.
On a curve to the right ha vine a radius of 664.00 feet, an arc length of 3 16.55 feet, a central angle of 27
degrees 18 minutes 52 seconds to a concrete monument to be set on a point of tangency, thence.
9
North 24 degrees 40 minutes 00 seconds East, 1117.36 feet to a concrete monument to be set on a point of
curvature, thence,
10.
On a curve to the left having a radius of 780.00 feet, an arc length of 24.21 feet, a central angle of 01
degrees 46 minutes 43 seconds to a concrete monument to be set on a non-tangent curve on the Southerly
right of way line of Whittingham Drive, thence;
The five following course are along the Southerly right of way line of Whittingham Drive, a 68 feet wide private
right of way and also known as Lot 1, Block 48.23.
11.
On a curve to the right having a radius of 41.46 feet, an arc length of 21.64 feet, a central angle of 29
degrees 54 minutes 22 seconds, a chord bearing of South 85 degrees 16 minutes 20 seconds last, a chord
distance of 21 40 feet to a point, thence;
12.
South 70 degree, 19 minutes 09 seconds East, 146.39 feet to a point of curvature, thence;
13.
On a curve to the right having a radius of 266.00 feet, an arc length of 157.04 feet a central angle of 33
degrees 49 minutes 37 seconds to a point of tangency, thence;
14.
South 36 decrees 29 minutes 32 seconds East, 189.57 feet to a point of curvature, thence;
Page 1 of 2
EXHIBIT B-2
Final Subdivision Plat of Greenbriar at Whittingham, Village 2.2
Phases C through H
EXHIBIT 20
Declaration of Covenants and Restrictions
for
Greenbriar Golf Course
192
193
DECLARATION OF COVENANTS AND RESTRICTIONS
GREENBRIAR GOLF COURSE
Dated: December 14, 1994
FOR
TABLE OF CONTENTS
PAGE
Article I. Definitions.............................................
1.00
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
1.10
1.11
1.12
1.13
2
General.................................................
Association.............................................
Board of Trustees.......................................
By-Laws.................................................
Certificate of Incorporation............................
Common Expenses.........................................
Community...............................................
Declarant...............................................
Declaration.............................................
Golf Course.............................................
Golf Member.............................................
Home....................................................
Owner or Home Owner ....................................
Rules and Regulations...................................
2
2
2
2
2
2
3
3
3
3
3
3
3
4
Article II. Membership and Voting Rights in the
Association.............................................
2.01 Membership..............................................
2.02 Use of Golf Course......................................
4
4
5
Article III. Property Subject to this Declaration..................
5
3.01
3.02
3.03
3.04
Golf Course.............................................
Residential Property....................................
Future Residential Property.............................
Title to Golf Course....................................
5
5
5
5
Article IV. Common Expense Assessments.............................
6
4.01
4.02
4.03
4.04
4.O5
4.06
4.07
Covenant to Pay Common Expense Assessments..............
Liability for Assessments...............................
Due Dates of Annual Common Expense Assessments..........
Assessment Not Made.....................................
Emergency Common Expense Assessment.....................
Special Assessments for Association Expenses............
Special Assessments for Damages, Violations
and Failures of Home Owners.............................
-i-
6
6
7
7
7
8
8
8
PAGE
4.08
Allocation of Common Expense Assessments;
Obligations of the Declarant............................
Membership Fees.........................................
Annual Golfing Fee......................................
Greens Fees.............................................
Declarant's Subsidy of Common Expenses..................
8
9
9
9
10
Article V. Easements...............................................
10
4.09
4.10
4.11
4.12
5.01
5.02
5.03
5.04
Member Easements........................................
Declarant' s Easements..................................
Municipal Easement......................................
Utility Easement........................................
Article VI. By-Laws and Administration..............................
6.01
6.02
Administration..........................................
Declarant' s Power of Attorney..........................
10
10
11
11
12
12
12
Article VII. Restrictions...........................................
14
Article VIII. Declarant ' s Rights and Obligations..................
16
8.01
8.02
Ratification, Confirmation and Approval
of Agreements...........................................
Rights Reserved to the Declarant........................
Article IX. General Provisions......................................
9.01
9.02
9.03
9.04
9.05
9.06
9.07
9.08
Duration................................................
Amendment of Declaration................................
Enforcement.............................................
Validity................................................
Waiver..................................................
Gender..................................................
Rule Against Perpetuities...............................
Schedules...............................................
16
16
16
16
17
17
18
18
18
18
19
-ii196
LIST OF SCHEDULES
SCHEDULE "A" -
Legal Description of Golf Course
SCHEDULE "B" -
Survey of Golf Course
SCHEDULE "C" -
By-Laws of Greenbriar Golf Course Association, Inc.
SCHEDULE "D" -
Certificate of Incorporation of Greenbriar Golf Course
Association, Inc.
- iii-
197
FOR
THIS DECLARATION made this 14th day of December, 1994. by U.S. Home
Corporation, a Delaware corporation, having an address at 800 West Main Street,
Freehold, New Jersey 07728, hereinafter referred to as the "Declarant".
W I T N E S S E T H:
WHEREAS, Declarant owns in fee simple approximately 75 acres of land
in the Township of Monroe, Middlesex County, New Jersey, for which Declarant
has received approval from the Township for the establishment of a nine hole
golf course thereon, to be known as Greenbriar Golf Course and as described on
Schedule "A" and shown on that certain Survey prepared by Henderson & Bodwell,
Consulting Engineers dated February 25, 1994, and attached hereto and made a
part hereof as Schedule "B" (the "Golf Course");
WHEREAS, Declarant has incorporated or will cause to be incorporated
under the laws of the State of New Jersey, a nonprofit corporation known or to
be known as the "GREENBRIAR GOLF COURSE ASSOCIATION, INC." (the "Association")
as the entity to own, operate and maintain the Golf Course as hereinafter more
fully set forth;
WHEREAS,
Declarant
owns
and
intends
to
develop
for
residential
purposes certain other lands adjacent to and in the vicinity of the Golf
Course, the ultimate owners of which will have the beneficial ownership use and
enjoyment of the Golf Course as members of the Association.
NOW THEREFORE, Declarant declares that all of the property described
in Sections 3.01 and 3.02 hereof shall be the Golf Course held, transferred,
sold,
conveyed,
restrictions,
leased,
conditions,
occupied,
and
used
easements,
charges,
subject
to
assessments,
the
covenants,
obligations,
and
liens
198
hereinafter
set
forth
and
to
the
provisions
of
the
Certificate
of
Incorporation, By-Laws, and Rules and Regulations of the Association.
ARTICLE I
DEFINITIONS
1.00. General. The following words and terms, when used in this
Declaration,
the
Certificate
of
Incorporation
or
the
By-Laws
of
the
Association, shall have the following meanings unless the context in which same
is utilized clearly indicates otherwise.
1.01. "Association" shall mean and refer to Greenbriar Golf Course
Association, Inc.
1.02. "Board of Trustees" shall mean and refer to the Board of
Trustees of the Association and any reference herein or in the Certificate of
Incorporation, By-Laws or Rules and Regulations to any power, duty, right of
approval or any other right of the Association shall be deemed to refer to the
Board of Trustees and not the Golf Members of the Association, unless the
context expressly indicates to the contrary.
1.03. "By-Laws" shall mean the By-Laws of the Association, a copy of
which is attached hereto and made a part hereof as Schedule "C", together with
all future amendments thereto.
1.04. "Certificate of Incorporation" shall mean the Certificate of
Incorporation of the Association, a copy of which is attached hereto and made a
part hereof as Schedule "D," together with all future amendments thereto.
1.05. "Common Expenses" shall, subject to the provisions of Article
IV hereof, mean and refer to all those expenses which are incurred or assessed
by the Association in fulfilling its lawful responsibilities.
-2-
1.06.
"Community"
shall
mean
and
refer
to
any
portion
of
that
Planned Retirement Community known as Whittingham or Greenbriar at Whittingham
("Greenbriar") which has received final site plan and/or subdivision approval
from the Township of Monroe, either in the past or in the future.
1.07. "Declarant" shall mean and refer to U.S. Home Corporation, a
Delaware corporation, its successors and assigns.
1.08. "Declaration" shall mean and refer to this Declaration for the
Greenbriar Golf Course and any amendments and supplements thereto.
1.09. "Golf Course" shall mean and refer to those real property
premises as more fully described on Schedules A and B aforesaid.
1.10. "Golf Member" shall mean and refer to both Greenbriar and
Whittingham Members as defined in Sections 2.01 (a) and (b) hereof.
1.11. "Home" shall mean and refer to any individual dwelling unit
duly within the Community for which a Certificate of Occupancy has been issued
by the Township of Monroe and which is subject to this Declaration.
1.12. "Owner" or "Home Owner" shall mean and refer to those persons
or entities in whom record fee simple title to any Home is vested as shown in
the
records
of
the
Office
of
the
Middlesex
County
Clerk,
including
the
Declarant unless the context expressly indicates otherwise, but, despite any
applicable theory of mortgage, shall not mean or refer to any mortgagee or
trustee under a deed of trust unless and until such mortgagee or trustee under
a deed of trust has acquired title to any such Home pursuant to foreclosure
proceedings or any proceeding in lieu of foreclosure, nor shall the term "Home
Owner" refer to any lessee or tenant of a "Home Owner".
-3-
1.13. "Rules and Regulations" shall mean those rules and regulations
of the Association that may be duly promulgated by its Board of Trustees,
together with all future amendments thereto.
ARTICLE II
MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION
2.01.
The
Membership.
Membership
of
the
Association
shall
be
comprised of four (4) classes:
(a)
Greenbriar Member: Every Home Owner other than Declarant who
holds record title to a Home within the following Sections of
the Community shall be a Greenbriar Member of the Association
when said lands are subjected to this Declaration: Sections
2.1 of Greenbriar;
(b)
Whittingham Member: Every Home Owner other than Declarant who
holds record title to a Home within the following Sections of
the Community and who irrevocably elects to be a Whittingham
Member of the Association pursuant to the requirements of the
Association: Sections 1 and 2 of Village I of Whittingham;
(c)
Declarant
within
Member:
the
For
Community,
so
long
Declarant
as
Declarant
shall
be
a
owns
any
Member
of
Home
the
Association; and
(d)
Associate Member: Every person who is entitled to possession
and occupancy of a Home owned by any Greenbriar or Whittingham
Member may be an Associate Member of the Association, but
shall not be entitled to any vote with respect to Association
matters.
-4-
2.02 Use of Golf Course. The rights of the Members to use the Golf
Course shall be subject to the Rules and Regulations, including any limitation
on the number of persons who may utilize the Golf Course facilities; provided,
however,
that
there
shall
be
no
such
limitations
placed
on
the
Declarant
Member.
ARTICLE III
PROPERTY SUBJECT TO THIS DECLARATION
3.01. Golf Course. The lands described and shown in Schedules A and
B aforesaid are hereby expressly made subject to this Declaration and shall be
held,
transferred,
sold,
conveyed,
leased
and
occupied
subject
to
this
Declaration and all amendments or supplements hereto.
3.02.
Residential
Property.
The
lands
within
Section
2.1
of
Greenbriar as described in Schedule A and shown in Schedule B hereof are also
hereby made subject to this Declaration and shall be held transferred, sold,
conveyed, leased and occupied subject to this Declaration and all amendments
and supplements thereto.
3.03
Community
Future
described
in
Residential
Section
Property.
2.01(a)
All
hereof
future
which
Sections
are
of
the
developed
for
residential use shall be subjected to this Declaration and all amendments and
supplements hereto by a Supplemental Declaration duly recorded in the Middlesex
County Clerk's office no later than the first conveyance of a Home in each said
Section.
3.04. Title to Golf Course. Declarant may retain the legal title to
the whole or portions of the Golf Course until such time as it has completed
initial improvements thereon and until such time as, in the sole judgment of
the Declarant, the Association is able to satisfactorily maintain same.
-5-
ARTICLE IV
COMMON EXPENSE ASSESSMENTS
4.01. Covenant to Pay Common Expense Assessments. Every Greenbriar
Member, by acceptance of a deed or other conveyance for a Home, whether or not
it shall be so expressed in any such deed or other conveyance, shall be deemed
to covenant and agree to pay to the Association such Common Expense Assessments
as are set forth herein. Every Whittingham Member, by acceptance in writing of
a
Membership
in
the
Association
shall
be
deemed
to
consent
and
agree
to
thereafter pay to the Association such Common Expense Assessments as authorized
herein, which acceptance shall be 1) binding upon all successors in title to
the Home owned by said Whittingham Member at the time of acceptance; ii) and
recorded
in
the
Middlesex
County
Clerk's
office
as
a
supplement
to
this
Declaration.
4.02. Liability for Assessments. Each Golf Member shall be obligated
to pay Common Expense Assessments for the maintenance of the Golf Course and
such other Special Assessments or Emergency Assessments pertaining to the Golf
Course
as
may
be
imposed
by
the
Board
of
Trustees.
These
Assessments,
regardless of type, together with any late charges, interest, and costs of
collection, including reasonable attorney's fees, shall be a charge and shall
constitute a continuing lien upon the Golf Member's Home against which such
Assessment is levied, and the personal obligation of the Owner(s) of such Home
at the time the Assessment fell due. In the case of joint ownership, all coowners shall be jointly and severally liable. No Golf Member may waive or
otherwise avoid liability for Common Expenses by non-use of the Golf Course.
Liens for unpaid Common Expense Assessments may be foreclosed by suit brought
in the name of the Association in the same manner as a foreclosure of a
mortgage
-6-
on real property. Suit to recover a money judgment for unpaid Common Expense
Assessments may be maintained without waiving the lien securing same.
4.03. Due Dates of Annual Common Expense Assessments. Annual Common
Expense assessments shall be made for a yearly period to be determined by the
Board of Trustees of the Association and shall be payable in advance in monthly
installments due upon the first day of each month or in such other installments
and upon such other due dates as it may establish. Except as otherwise provided
by Section 4.02, upon the conveyance of title to a Home, the portion of the
then current annual Common Expense assessment payable by the new Home Owner
shall be an amount which bears the same relationship to the annual Common
Expense assessment as the remaining number of months in the then current annual
assessment period bears to twelve. The first annual Common Expense Assessment
or portion thereof for which a new Home Owner is liable shall be immediately
due upon the acquisition of title to his Home.
4.04. Assessment Not Made. If an annual Common Expense Assessment is
not made as required, an assessment shall be presumed to have been made in the
amount of the last prior year's assessment. Installments of such annual Common
Expense Assessments shall be due upon the same installment payment date as the
prior year's installments until a new annual Common Expense Assessment is made.
4.05. Emergency Common Expense Assessment. In the event the annual
Common Expense Assessment proves to be insufficient for an immediate need or
emergency, the Board of Trustees may amend the budget and assessment and impose
an Emergency Common Expense Assessment. The determination of an immediate need
or emergency shall be in the sole and absolute discretion of the Board of
Trustees.
-7-
4.06.
Special
Assessments
for
Association
Expenses.
Subject
to
Section 5.02 (a) (1) of the By-laws and in addition to the Annual, Special and
Emergency Assessments herein authorized, at any time the Board of Trustees may
levy
against
all
Golf
Members
a
Special
Assessment
for
the
purpose
of
defraying, in whole, or in part, the costs of reconstruction, unexpected repair
or replacement of an existing capital improvement to the Golf Course, including
any personal property related thereto, or for the purpose of protecting any
existing Property in the event of an emergency.
4.07. Special Assessments for Damages. Violations and Failures of
Home Owners. If any Golf Member or his guest, tenant, invitee, or occupant of
his Home causes damage to the Golf Course which necessitates repair thereto, or
if the Association is required to expend monies to remedy any violations of the
covenants and restrictions herein stated or the published Rules and Regulations
of the Association, then the Board of Trustees may impose a Special Assessment
upon the Golf Member involved for the cost of performing such repairs or
maintenance or for remedying such violations, including reasonable attorney's
fees, as Che case may be. Such Special Assessment shall constitute a lien
against any Home owned by such Golf Member, but such Special Assessment in
question shall not be imposed without at least ten (10) days prior written
notice to the affected Golf Member and an opportunity for the affected Home
Owner to be heard at a meeting of the Board of Trustees.
4.08. Allocation of Common Expense Assessments; Obligations of the
Declarant. The Common Expense Assessments shall be allocated equally among all
Homes subject to this Declaration for which an initial Certificate of Occupancy
has been issued. Until the conveyance of title to the first such Home, the
Declarant shall be solely responsible for all Common Expenses. Following the
-8-
first conveyance, the Owners of Homes to whom title has been conveyed shall be
responsible for payment of Common Expenses assessed against their Homes. The
Declarant shall be responsible for payment of all Common Expenses assessed
against Homes owned by it for which an initial Certificate of Occupancy has
been issued and for any subsidy required by Section 4.12 hereof.
4.09 Membership Fees. No initial membership or initiation fees shall
be charged to Greenbriar Members or upon the resale of any Home. Whittingham
Members shall also be exempt from the payment of such fees until January 1st of
the year following the calendar year when the Golf Course is first open for
play.
Thereafter,
initial
membership
or
initiation
fees
may
be
charged
to
Whittingham Members at the discretion of and in the amount determined by the
Board. Such fees shall be utilized for working capital or any other lawful
purpose. The Declarant shall also be exempt from payment of any such fees even
though it may be obligated to pay Common Expense Assessments for Homes owned by
it for which a Certificate of Occupancy has been issued.
4.10 Annual Golfing Fee. The Board of Trustees shall establish and
charge an Annual Golfing Fee, which each Golf Member may elect to pay in lieu
of greens fees for the particular year, the amount of which shall be determined
in the Board's sole discretion.
4.11 Greens Fees. The Board of Trustees shall also have the right to
establish and charge daily greens fees to all of its members who have not paid
an Annual Golfing Fee. The amount of such daily greens fees shall be determined
by the Board in its sole discretion, but in no event shall they discriminate
between Greenbriar and Whittingham Members. However, greens fees charged for
Associate Members, guests and the general public may be higher than those for
Golf Members, if the Board elects.
-9-
4.12 Declarant's Subsidy of Common Expenses. Until there are 425
Golf Members, the Declarant shall subsidize and fund any operating deficit of
the Association at such time(s) as it deems appropriate. After there are 425
Golf Members, the Declarant shall have the right, but not the obligation to
subsidize and fund any operating deficits.
ARTICLE V
EASEMENTS
5.01. Member Easements. Every Member, his successors and assigns,
shall have the following perpetual easements with respect to the Property which
easement right shall be exercised in accordance with the Rules and Regulations
and be subject to the payment of all required fees and assessments:
(a)
A non-exclusive easement for pedestrian and golf cart ingress
to and egress from his Home in, upon, under, over, across and
through the Golf Course;
(b)
A perpetual and non-exclusive easement for access to and the
enjoyment
of
any
recreational
facilities
which
may
be
constructed upon the Golf Course.
5.02.
Declarant's
Easements.
The
Declarant,
its
successors
and
assigns, shall have the following easements with respect to the Golf Course:
(a)
A blanket and non-exclusive easement in, upon, through, under
and across the Golf Course, for the purpose of construction,
installation, maintenance and repair of any improvements to the
Golf Course, for ingress and egress for the use of all roadways
and parking areas, and for the utilization of any pro shop and
related facilities for sales promotion and exhibition, until
the expiration of two (2) years from the date
-10-
the last Home in the Community is sold and conveyed in the
normal course of business, but in no event more than twenty
(20) years from the date of recording of this Declaration.
(b)
A
perpetual,
blanket
and
non-exclusive
easement
in,
upon,
over, under, across and through the Golf Course for surface
water
runoff
and
drainage
caused
by
natural
forces
and
elements, grading, and/or the improvements located within the
Community. No individual Member shall directly or indirectly
interfere with or alter the drainage and runoff patterns and
systems within the Golf Course.
5.03. Municipal Easement. A blanket, perpetual and non-exclusive
easement of unobstructed ingress and egress in, upon, over, across and through
the Golf Course shall exist for the benefit of the Township of Monroe, its
officers, agents and employees (but not the public in general) and all police,
fire, and ambulance personnel in the proper performance of their respective
duties,
and
for
emergency
or
other
necessary
maintenance
repair
and/or
replacement of the Golf Course which the Association has failed to perform.
Except
in
the
event
of
emergencies,
the
rights
accompanying
the
easements
provided for in this subparagraph shall be exercised only during reasonable
daylight hours.
5.04. Utility Easement. Any utility company or entity furnishing
utility service, including master or cable television or electronic security
service
to
the
Community,
its
agents
and
employees
shall
have
a
blanket,
perpetual and non-exclusive easement to enter the Golf Course, or any part
thereof, in order to read meters, service or repair utility lines and equipment
and do everything and anything else necessary in order to properly maintain and
-11-
furnish utility service to the Community. Such easement area shall be restored
to its original condition at the utility company's expense and, except in the
case of emergency, the exercise of the easement rights shall be during daylight
hours and shall not unreasonably interfere with the use of the Golf Course.
ARTICLE VI
BY-LAWS AND ADMINISTRATION
6.01. Administration. The administration of the Golf Course shall be
by the Association in accordance with the provisions of the New Jersey Nonprofit
Corporation
Act,
N.J.S.A.
15A:l-l
et
seq.,
this
Declaration,
the
Certificate of Incorporation, the By-Laws, the Rules and Regulations and any
other agreements, documents, amendments or supplements to the foregoing which
may be duly adopted or subsequently be required by any Institutional Lender or
holding mortgage encumbering the Golf Course or by any governmental or quasigovernmental agency having regulatory jurisdiction over the Golf Course or by
any title insurance company selected by Declarant to insure title to the Golf
Course.
6.02. Declarant's Power of Attorney. The Declarant hereby reserves
for itself, its successors and assigns, for a period of twenty (20) years from
the date hereof or until the Declarant conveys title to all Homes in the
Community,
contract
whichever
purchasers.
occurs
Home
first,
Owners,
the
right
mortgagees,
to
execute
other
on
behalf
lienholders
or
of
all
parties
claiming a legal or equitable interest in the Golf Course, any such agreements,
documents, amendments or supplements to this Declaration, the By-Laws, and the
Certificate of Incorporation of the Association which may be so required by any
such
governmental
or
quasi-governmental
agency,
an
title insurance company designated by the Declarant.
-12-
Institutional
Lender
or
(a) Appointment. By acceptance of a deed to any Home or by the
acceptance of any other legal or equitable interest in the Golf Course and for
the Association, each and every such contract purchaser. Home Owner, mortgagee,
or other lienholder or party having a legal or equitable interest in the Golf
Course
and
for
constitute,
the
appoint
Association
and
confirm
does
automatically
Declarant,
its
and
irrevocably
successors
and
name,
assigns,
as
attorney-in-fact for the purpose of executing such agreements, instruments,
amendments or supplements to this Declaration and other instrument(s) necessary
to
effect
the
contemplated
foregoing,
by
Section
3.03
together
with
any
hereof,
subject
to
Supplemental
the
Declaration
limitations
set
forth
herein.
(b)
Limitations.
No
such
agreement,
document,
amendment
or
supplement or other instrument which adversely affects the value of the Golf
Course or increases the financial obligations of the Home Owner by more than
ten (10\) percent of his then current annual Common Expense Assessment, or
reserves any additional or special privileges for the Declarant not previously
reserved, shall be made without the prior written consent of fifty-one percent
(51%)
of
the
Golf
Members.
Any
such
agreement,
document,
amendment
or
supplement or other document which adversely affects the priority or validity
of any mortgage which encumbers the Golf Course shall not be made without the
prior
written
consent
of
the
Owners
of
any
such
mortgages
which
may
be
affected.
(c) Duration. The power of attorney aforesaid is expressly declared
and acknowledged to be coupled with an interest in the subject matter hereof
and the same shall run with the title to any and all Homes which are subject to
this
Declaration
and
be
binding
upon
the
heirs,
personal
representatives,
successors and assigns of any of the foregoing parties. Further, said power of
attorney shall not be affected by the death or disability of any principal and
-13-
is intended to deliver all right, title and interest of the principal in and to
said powers. Said power of attorney shall be vested in the Declarant, its
successors and assigns until same effectuate the initial conveyance of all
Homes in the Community or until fifteen (15) years have elapsed from the date
hereof. Thereafter, said power of attorney shall automatically vest in the
Association and may be exercised by its Board of Trustees.
ARTICLE VII
RESTRICTIONS
The Declarant declares that the Property shall be subject to all
covenants,
restrictions
and
easements
of
record
and
to
the
following
restrictions and covenants, all of which shall be perpetual in nature and run
with the land;
(a)
The Golf Course shall be used only for golf course open space,
recreational and related purposes.
(b)
There shall be no obstruction of the Golf Course nor shall
anything be stored in or upon the Golf Course unless expressly
permitted in writing in advance by the Board of Trustees;
(c)
No portion of the Golf Course shall be used or maintained for
the dumping of rubbish or debris;
(d)
No Home Owner or occupant shall build, plant or maintain or
burn, chop or cut any matter or thing upon, in, on, over or
under the Golf Course;
(e)
Every Member shall be liable for any and all damage to the
Golf
Course
respective
which
family
shall
be
members,
tenants, guests or licensees;
-14-
caused
by
employees,
said
Members,
servants,
their
agents,
(f)
No noxious or offensive activities shall be carried on, in or
upon the Golf Course shall anything be done therein either
willfully or negligently which may be or become and annoyance
or nuisance to the other Owners or residents of the Community;
(g)
No vehicles larger than a van and no commercial vehicles,
mobile
home,
trailer,
boat,
recreational
vehicle,
truck,
camper, motorcycle, unused or disabled vehicle or unlicensed
vehicle of any type, except those vehicles temporarily on the
Golf Course for the purpose of servicing the Golf Course,
shall be permitted on or to be parked upon the Golf Course or
on any parking lot(s) available for the use of golfers without
the
prior
written
restriction
shall
consent
not
of
apply
to
the
Board
the
of
Trustees.
Declarant.
This
Snowmobiles,
mopeds, dirt bikes, all terrain vehicles and other similar
recreational or utility vehicles or devices, whether licensed
or not, shall not be parked upon or operated within the Golf
Course or any such parking lot(s). The Board of Trustees,
through the promulgation, adoption and publication of Rules
and Regulations, may and is hereby empowered to further define
those vehicles prohibited from being on the Golf Course or
such parking lot(s);
(h)
All
laws,
governmental
zoning
bodies
ordinances
having
and
regulations
jurisdiction
over
the
of
all
Property
shall be observed;
(i)
No servicing, maintenance or washing of any vehicle, boat or
other item of personal property shall be performed anywhere on
the Golf Course.
-15-
ARTICLE VIII
DECLARANT'S RIGHTS AND OBLIGATIONS
8.01. Ratification, Confirmation and Approval of Agreements. The
fact that some or all of the officers. Trustees, Members or employees of the
Association and the Declarant may be identical, and the fact that the Declarant
or its nominees, have heretofore or may hereafter enter into agreements with
the Association or with third parties, will not invalidate any such agreements
and the Association and its Members, from time to time, will be obligated to
abide by and comply with the terms and conditions thereof. The purchase of a
Home,
and
the
acceptance
of
the
Deed
therefor
or
a
Membership
in
the
Association by any party, shall constitute the ratification, confirmation and
approval by such purchaser, his heirs, legal representatives, successors and
assigns, of the propriety and legality or said agreements or said agreement, or
any
other
agreements
authorized
and
permitted
by
this
Declaration,
the
Certificate of Incorporation or the By-Laws.
8.02. Rights Reserved to the Declarant. Despite anything to the
contrary herein or in the Certificate of Incorporation, By-Laws or Rules and
Regulations
of
the
Association
despite,
the
Declarant
hereby
reserves
for
itself, its successors and assigns, for so long as it owns one or more Homes in
the Community, the right to utilize the Golf Course without charge for the
enjoyment of its employees and guests.
ARTICLE IX
GENERAL PROVISIONS
9.01.
Duration.
The
provisions
of
this
Declaration
shall
be
perpetual in duration, shall run with and bind all of the land included within
the Property and shall inure to the benefit of and be enforceable by the
-16-
Association, and the Home Owners, their respective successors, assigns, heirs,
executors, administrators, and personal representatives.
9.02.
Amendment
of
Declaration.
Except
as
otherwise
expressly
provided herein, this Declaration may be amended at any time after the date
thereof by an affirmative vote or consent of at least sixty-seven percent (67%)
of all Home Owners. No amendment shall be effective until recorded in the
Office of the Clerk of Middlesex County, New Jersey. This paragraph is by way
of supplement to and not in derogation of the powers of amendment reserved to
the Declarant pursuant to Article VI hereof.
9.03. Enforcement. Enforcement of this Declaration shall be by any
appropriate proceeding in law or equity in any court or administrative tribunal
having
jurisdiction
against
any
person
or
persons,
firm
or
corporation
violating or attempting to violate any covenant herein contained; either to
restrain
or
enjoin
such
violation
or
threatened
violation,
or
to
recover
damages; and against any Owner to enforce any lien created by this Declaration
in any covenant herein contained. Failure by the Association or any Golf Member
thereof to enforce any covenant herein contained for any period of time shall
in no event be deemed a waiver or estoppel of the right to thereafter enforce
the same.
In the event the Golf Course is not maintained in reasonable order
and condition? the Township of Monroe shall have the right to enter upon and
maintain any portion of the Golf Course. The assumption of such maintenance
responsibility shall be in accordance with the procedure set forth in N.J.S.A.
40:55D-43 (b). The cost of same shall be assessed, enforced and collected in
accordance
with
the
provisions
of
N.J,S.A.
40:55D-43(c).
Despite
any
limitations as to the applicability of N.J.S.A. 40:55D-43(b) and (c) aforesaid
to the maintenance of "open space," provisions of this paragraph shall be
deemed to
-17-
apply to all maintenance obligations of the Association. The cost of such
maintenance by the municipality shall be assessed pro rata against all Golf
Members
of
the
Association
shall
become
a
lien
and
tax
on
each
of
the
respective Homes, and shall be enforceable by the Township of Monroe in the
manner provided by law with respect to real estate taxes assessed directly
against each such Home.
9.04. Validity. The invalidity of any provision of this Declaration,
the Certificate of Incorporation, or By-Laws of the Association shall not be
deemed to impair or affect in any manner the validity, enforceability or effect
the remainder of this Declaration or said Certificate of Incorporation and ByLaws and in such event all of the other provisions of this Declaration and said
Certificate of Incorporation and By-Laws shall continue in full force as if
such invalid provisions had never been included.
9.05. Waiver. No provision contained in this Declaration shall be
deemed to have abrogated or waived by reason of any failure to enforce the
same, irrespective of the number of violations or breaches which may occur.
9.06. Gender. The use of the masculine gender in this Declaration
shall be deemed to refer to the feminine gender and the use of the singular
shall be deemed to refer to the plural, and vice versa, whenever the context so
requires.
9.07.
Rule
Against
Perpetuities.
If
any
provision
of
this
Declaration or the By-Laws shall be interpreted to constitute a violation of
the rule against perpetuities, then such provision shall be deemed to remain in
effect until the death of the last survivor of the now living descendants of
George Herbert Walker Bush, former President of the United States of America,
plus twenty-one (21) years thereafter.
-18-
9.08. Schedules. Attached hereto and made a part hereof are the
following Schedules:
SCHEDULE "A" -
SCHEDULE "B" -
SCHEDULE "C" -
By-Laws of Greenbriar Golf Course Association, Inc.
SCHEDULE "D" -
Certificate of Incorporation of Greenbriar Golf
Association, Inc.
IN WITNESS WHEREOF, the Declarant has caused this instrument to be
executed the day and year first above written.
(SEAL)
ATTEST:
US HOME CORPORATION, A Delaware
Corporation
-19-
STATE OF NEW JERSEY
COUNTY OF Monmouth
)
) SS:
)
BE IT REMEMBERED, that on this 14th day of December, 1994, Paul
Rempe personally came before me and this person acknowledged under oath, to my
satisfaction, that:
(a)
this person is the Vice President of the corporation named in
the attached document;
(b)
this person is the attesting witness to the signing of this
document by the proper corporate officer who is Gregory A.
Snyder, the Division President of the corporation;
(c)
this document was signed and delivered by the corporation as
its voluntary act duly authorized by a proper resolution of
its Board of Trustees;
(d)
this person knows the proper seal of the corporation which was
affixed to this document; and
(e)
this person signed this proof to attest to the truth of these
facts.
on this 14th day of Dec. , 1994.
-20-
SCHEDULE "A"
218
6-30-94
DESCRIPTION
LOT 1, BLOCK 48.25, WHITTINGHAM
BEGINNING at a corner common to Lot 1, Block 48.25 and Lot 2,
Block 48.26 on the westerly right of way line of Whittingham Drive,
distant 426.81 feet as measured along said line on various courses
from the intersection of same with the northerly right of way line of
Prospect Plains - Hoffman Station Road; thence along a line common to
Lot 1, Block 46.25 and Lot 2, Block 48.26 on the following fourteen
(14) courses:
1.
North 81 degrees 12 minutes 04 seconds West, 212.88 feet;
thence
2.
thence
3.
thence
4.
thence
5.
Along the arc of a curve to the right having a radius of
332.00 feet, an arc length of 21.68 feet, a central angle
of 03 degrees 44 minutes 31 seconds and the cord of which
bears South 73 degrees 58 minutes 23 seconds West, a
distance of 21.68 feet; thence
6.
North 46 degrees 27 minutes GO seconds West, 836.23 feet;
thence
7.
thence
8.
thence
9.
thence
10.
thence
11.
thence
12.
thence
13.
North 24 degrees 38 minutes 22 seconds East, 605.00 feet;
thence
14.
thence
15.
Along
South
along
48.30
16.
South 23 degrees 00 minutes 04 seconds East, 62.82 feet;
thence
17.
thence
18.
South 24 degrees 10 minutes 30 seconds West, 411.68 feet;
thence
19.
thence
20.
thence
21.
thence
22.
thence
23.
thence
24.
thence
25.
thence
26.
thence
27.
thence
28.
thence
a westerly right of way line of Whittingham Drive
56 degrees 19 minutes 24 seconds East, 120.00 feet;
a line common to Lot 1, Block 48.25 and Lot 1, Block
on the following sixteen (16) courses:
29.
thence
30.
to a point of curvature; thence
31.
25.00 feet, an arc length of 39.27 feet, a central angle of
90 degrees to a point of tangency on a westerly right of
way line of Whittingham Drive; thence along the westerly
line of Whittingham Drive on the following two
(2) courses:
32.
South 26 degrees 49 minutes 29 seconds East, 243.13 feet to
a point of curvature; thence
33.
766.00 feet, an arc length of 476.26 feet, a central angle
of 35 degrees 37 minutes 25 seconds to the point of
BEGINNING.
221
DESCRIPTION
PROPOSED LOT 1.01,BLOCK 48.24 WHITTINGHAM
BEGINNING at a corner common to proposed Lot 1.01, Block 48.24 and existing
Lot 38, Block 48.35 on the easterly right of way line of Whittingham Drive,
distant 310.36 feet as measured along said line on various courses from the
intersection of same with the northerly right of way line of Prospect Plains
-Hoffman Station Road; thence
1.
Along said right of way line on the arc of a curve to the left
having a radius of 834.00 feet, an arc length of 128.43 feet, a
central angle of 08 degrees 49 minutes 24 seconds and the chord
of which bears North 04 degrees 23 minutes 14 seconds East, a
distance of 128.31 feet; thence along the southerly line of
Whittingham Section I (Filed Hap No. 5022) on the following four
(4) courses:
2.
3.
North 68 degrees 43 minutes 48 seconds East. 321.00 feet; thence
4.
5.
along the easterly line of Whittingham Section I on the following
seven (7) courses:
6.
7.
Along the arc of a curve to the left having a radius of 368.00
feet, an arc length of 83.12 feet, a central angle of 12 degrees
56 minutes 29 seconds and the chord of which bears North 76
degrees 04 minutes 21 seconds West, a distance of 82.94 feet;
thence
8.
North 11 degrees 24 minutes 01 second West, 391.79 feet; thence
9.
10.
11.
12.
along the northerly line of Whittingham Section I on the
following three (2) courses:
13.
14.
15.
along a line common to proposed Lot 1, Block 48.24 and proposed
Lot 40, Block 48.35 on the following twelve (12) courses:
16.
17.
18.
19.
20.
21.
North 26 degrees 47 minutes 29 seconds West, 90.45 feet a point
of curvature; thence
22.
Along the arc of a curve to the right having a radius of 15.00
feet, an arc length of 23.55 feet and a central angle of 89
degrees 58 minutes 00 seconds to a point of tangency; thence
23.
24.
25.
26.
North OS degrees 17 minutes 32 seconds West, 235.34 feet; thence
27.
28.
Along a line common to proposed Lots 40 and 41, Block 48.35 with
proposed Lot 1.01, Block 48.24, North 08 degrees 25 minutes 48
seconds East, 563.18 feet; thence along a line common to proposed
Lot 1.01 Block 48.24 and proposed Lot 41, Block 48.35 on the
following nine (0) courses:
29.
30.
31.
32.
223
33.
34.
35.
36.
37.
South 26 degrees 57 minutes 17 seconds West, 88.96 feet to the
aforementioned easterly right of way line of Whittingham Drive;
thence
38.
Along said right of way line, North 56 degrees 19 minutes 24
seconds West, 120.00 feet; thence along a line common to proposed
lot 1.01, Block 48.24 and existing Lot 14, Block 48.40 on the
following twelve (12) courses:
39.
40.
41.
42.
43.
44.
45.
South 30 degrees 31 minutes 00 seconds East. 190.00 feet; thence
46.
South 09 decrees 31 minutes 00 seconds East, 210.00 feet; thence
47.
48.
49.
50.
along the westerly line of Whittingham Section II (Filed Map No.
5171) on the following seventeen (17) courses:
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
Partly along same and partly along a line common to proposed Lot
1.01. Block 48.24 and existing Lot 38, Block 48.35, South 74
degrees 21 minutes 37 seconds West, 265.00 feet; thence along a
line common to proposed Lot 1.01, Block 48.24 and existing Lot
38, Block 48.35 on the following two (2) courses:
69.
70.
North 57 degrees 56 minutes 40 seconds West, 174.40 feet to the
point of BEGINNING.
Containing 49.12 acres, more, or less.
225
SCHEDULE "B"
226
SCHEDULE "C"
By-Laws
of
Greenbriar Golf Course Association, Inc.
BY-LAWS
OF
GREENBRIAR GOLF COURSE ASSOCIATION, INC.
ADOPTED: December 14, 1994
BY-LAWS
OF
TABLE OF CONTENTS
Page
Article I......................................................
1.01. Purpose .....................................
1.02. Definitions .................................
1.03. Fiscal Year..................................
1.04. Principal Office ............................
1
1
1
1
1
Article II.....................................................
2. Membership and Voting Rights ..........................
2.01. Membership...................................
2.02. Golf Member in Good Standing.................
2.03. Change of Golf Membership....................
2.04. Rights of Membership ........................
2.05. Suspension of Rights ........................
2.06. Votes........................................
1
1
1
2
3
3
4
4
Article III....................................................
3. Meetings of Members....................................
3.01. Place of Meetings............................
3.02. Annual Meetings .............................
3.03. Special Meetings ............................
3.04. Notice of Meeting............................
3.05. Quorum and Adjourned Meetings ...............
3.06. Organization ................................
3.07. Voting on Questions .........................
3.08. Voting in Elections of Trustees .............
3.09. Ballot by Mail...............................
3.10. Proxies......................................
3.11. Inspectors...................................
3.12. Order of Business............................
5
5
5
5
6
6
7
7
7
8
9
10
10
11
Article IV.....................................................
4. The Board of Trustees..................................
4.01. Qualifications...............................
4.02. Number.......................................
4.03. Transition Elections ........................
4.04. Term of Office...............................
4.05. Removal of Members of the Board..............
4.06. Vacancies ...................................
12
12
12
13
13
15
16
17
Article V......................................................
5. Transaction of Business by the Board of Trustees ......
5.01. Express and Implied Powers and Duties .......
5.02. Declarant's Protective Provisions ...........
17
17
17
18
-i-
Page
5.03.
5.04.
5.05.
5.06.
5.07.
5.08.
Meeting of the Board; Notice to Trustees;
Waiver of Notice..............................
Quorum and Adjourned Meetings ................
Joinder in Meetings by Approval of Minutes.....
Non-Waiver....................................
Consent in Lieu of Meeting and Vote ..........
Meetings Open to Members; Notice..............
19
20
20
21
21
21
Article VI..................................................... 22
6.01. General Powers and Privileges ................ 22
6.02. Duties and Responsibilities .................. 24
Article VII....................................................
7. Fiscal Management .....................................
7.01. Budget; Common Expense Assessments ...........
7.02. Determination of Annual Common Expenses.......
7.03. Disbursements.................................
7.04. Depositories..................................
7.05. Accounts......................................
7.06. Reserves......................................
7.07. Notice; Emergencies ..........................
Acceleration of Assessment Installment upon
7.08.
Default.......................................
7.09. Interest and Counsel Fees.....................
7.10. Assessment of Expenses in Actions by or
against Association; Allocation of Awards ....
7.11. Annual Audit..................................
7.12. Examination of Books..........................
7.13. Fidelity Bonds................................
28
28
28
29
29
29
30
31
32
Article VIII ..................................................
8. Officers...............................................
8.01. Designation...................................
8.02. Election of Officers..........................
8.03. Removal of Officers...........................
8.04. Duties and Responsibilities of Officers ......
8.05. Other Duties and Powers.......................
8.06. Eligibility of Trustees.......................
36
36
36
36
36
37
38
38
Article IX.....................................................
9. Compensation, Indemnification and Exculpation .........
9.01. Compensation..................................
9.02. Indemnification...............................
9.03. Exculpation...................................
38
38
38
38
39
Article X......................................................
10. Enforcement...........................................
10.01. Enforcement ..................................
10.02. Fines ........................................
39
39
39
40
-ii-
33
34
34
35
36
36
Page
10.03. Waiver........................................
40
Article XI.....................................................
11. Amendments............................................
11.01. Amendments ...................................
11.02. Prohibition ..................................
40
40
40
41
Article XII....................................................
12. Conflict; Invalidity .................................
12.01. Conflict .....................................
12.02. Invalidity ...................................
42
42
42
42
Article XIII...................................................
13. Notice................................................
42
42
Article XIV ...................................................
14. Arbitration...........................................
43
43
Article XV.....................................................
15. Corporate Seal .......................................
43
43
-iii-
BY-LAWS
OF
Article I
1.01.
administration
Purpose.
of
These
Greenbriar
By-Laws
Golf
are
Course
intended
to
Association,
govern
Inc.,
the
(the
"Association") a not for profit corporation organized under Title 15A of
the New Jersey Statutes, and provide for the management, administration,
utilization and maintenance of the golf course and related facilities
("Golf Course") located in that Planned Retirement Community known as
Whittingham in the Township of Monroe, Middlesex County, New Jersey.
1.02.
Definitions.
Unless
the
context
clearly
indicates
otherwise, all definitions set forth in the Declaration for Greenbriar
Golf Course (the "Declaration") are incorporated herein by reference.
1.03. Fiscal Year. The fiscal year of the corporation shall be
on a calendar year basis unless otherwise determined by the Board of
Trustees.
1.04.
Principal
Office.
The
principal
office
of
the
corporation is located at 800 West Main Street, Freehold, New Jersey
07728, or such other location as may be determined by the Board of
Trustees.
Article II
2.
Membership and Voting Rights.
2.01. Membership. The Membership of the Association shall be
comprised of four (4) classes:
(a)
Greenbriar Member: Every Home Owner other than Declarant
who holds record title to a Home within the following
Sections of the Community shall be a Greenbriar Member of
the Association when said lands are subjected to this
Declaration: Sections 2.1 of Greenbriar;
(b)
Whittingham Member: Every Home Owner other than Declarant
who holds record title to a Home within the following
Sections of the Community and who elects to become a
Whittingham Member of the Association, pursuant to the
requirements of the Association: Sections 1 and 2 of
Village I of Whittingham;
(c)
Declarant Member: For so long as Declarant owns any Home
within the Community, Declarant shall be a Member of the
Association; and
(d)
Associate
possession
Greenbriar
Member:
and
or
Every
occupancy
Whittingham
person
of
a
Member
who
Home
may
is
entitled
owned
be
an
by
to
any
Associate
Member of the Association, but shall not be entitled to
any vote with respect to Association matters.
2.02. Golf Member in Good Standing. A Golf Member shall be
deemed to be in good standing if, and only if, he shall have fully paid
all installments due for assessments made or levied against him and his
Home by the Board as hereinafter provided, together with all interest,
costs, attorney's fees, penalties and
-2-
other expenses if any, properly chargeable to him and to his Home. Any
date set forth in these By-Laws for determining good standing for voting
purposes, as well as any related requirement which may be established by
the
Board
of
Trustees,
shall
be
deemed
supplemental
to
and
not
in
derogation of, the record date provisions of N.J.S. 15A:5-7.
2.03. Change of Golf Membership. Change of Golf Membership
shall be accomplished by recordation in the Middlesex County Clerk's
office of a deed or other instrument establishing a record title to a
Home, and delivery to the Secretary of the Association of a certified
copy of such instrument together with such sums of money as may be
required for the payment of any membership fee or other sums required to
be paid by the Member to the Association. The Golf Membership of the
prior Home Owner shall be thereby terminated.
2.04. Rights of Membership. Every person who is entitled to
Membership
in
the
Association,
pursuant
to
the
provisions
of
the
Certificate of Incorporation and these By-Laws, including any Associate
Member, shall be privileged to use and enjoy the Golf Course provided
that all payments due to the Association are current and subject to the
right of the Association to:
a. Promulgate Rules and Regulations governing such use
and enjoyment;
b. Suspend the use and enjoyment of the Golf Course as
provided in Section 2.05 of this Article II; and
-3-
2.05. Suspension of Rights. The Membership and voting rights
of any Member may be suspended by the Board for any period during which
any Member changes or any type of assessment against the Home to which
his Membership is appurtenant remains delinquent and unpaid; but upon
payment of any such charges, assessments, any interest or late fees
accrued thereon, and any attorneys fees incurred of the Association for
collection of the charges of assessments if by cash, money order, or
certified
or
collected
funds,
his
rights
and
privileges
shall
be
immediately and automatically restored. Section 2.07 hereof shall govern
the restoration of voting rights. Further, if Rules and Regulations
governing the use of the Golf Course and the conduct of persons thereon
have been adopted and published, as authorized in the By-Laws, the rights
and privileges of any person in violation thereof or in violation of any
non-monetary
covenant
of
the
Declaration
may
be
suspended
at
the
discretion of the Board for a period not to exceed thirty (30) days for
any single violation, but if the violation is of a continuing nature,
such rights and privileges may be suspended indefinitely until such time
as the violation is abated in the opinion of the Board. No such action
shall be taken by the Board until the Member is afforded an opportunity
for a hearing consistent with the principles of due process of law.
2.06.
Votes.
Each
Golf
Member
in
good
standing
shall
be
entitled to one (1) vote for each Home to which he holds title which is
subject to the Declaration and for each membership which he holds. When
more than one (1) person holds title, the vote for
-4-
each Home shall be exercised as the co-owner Members among themselves
determine.
When
one
(1)
or
more
co-owner
Members
signs
a
proxy
or
purports to vote for his or her co-owner Members, such vote shall be
counted unless one (1) or more of the other co-owner Members is present
and objects to such vote; or if not present, submits a proxy or objects
in a writing delivered to the Secretary of the Association before the
vote is counted. If co-owner Members disagree as to the vote, the vote
shall be split equally among the co-owner Members.
Article III.
3. Meetings of Members.
3.01. Place of Meetings. All meetings of the Members of the
Association shall be held at the Whittingham Clubhouse or at such other
place convenient to the Members as may be designated by the Board.
3.02. Annual Meetings. All annual meetings of the Members of
the Association shall be held on the day and month of the year to be
established by the Board, except that the first such annual meeting shall
be held not more than thirteen (13) months following the incorporation of
the Association. At each annual meeting, the election of Trustees shall
take place. If the election of Trustees shall not be held at the annual
meeting or any adjournment of such meeting, the Board shall cause the
election to be held at a special meeting as soon thereafter as may be
convenient. At such special meeting the Members may elect the Trustees
and transact other business with the same force and effect
-5-
as
at
an
annual
meeting
duly
called
and
held.
All
proxies
validly
received for the originally scheduled meeting shall remain in full force
and effect for any such adjourned meeting or special meeting and new
proxies may be received for any such subsequent meeting.
3.03. Special Meetings. Special meetings of Members may be
called by the President whenever he deems such a meeting advisable, or
shall be called by the Secretary upon the order of the Board or upon the
written request of Members representing not less than twenty-five (25V)
percent of all the votes entitled to be cast at such meeting. Such
request shall state the purpose(s) of such meeting and the matter (s)
proposed to be acted upon. Unless Members representing at least fifty
(50%) percent of all votes entitled to be cast request such a meeting, no
special
meeting
may
be
called
to
consider
any
matter
which
is
substantially the same as a matter voted upon at any meeting of the
Members held during the preceding twelve (12) months, which determination
shall be made in the sole and absolute discretion of the Board.
3.04. Notice of Meeting. Notice of each meeting of Members,
whether annual or special, shall be given not less than ten (10) days,
nor more than ninety (90) days before the day on which the meeting is to
be held, to each Member at his last known address, by delivering a
written or printed notice thereof to said Members, or by mailing such
notice, postage prepaid. Every such notice shall state the time, place
and purpose(s) of the meeting. Notice of any meeting of Members shall not
be required to have been sent to any Members who shall attend such
meeting in person or by
-6-
proxy. Notice of any adjourned meeting of the Members shall not be
required to be given unless the time and place to which the meeting is
adjourned
is
not
announced
at
the
meeting
adjourned.
Except
where
otherwise expressly required by law, no publication of any notice of a
meeting of Members shall be required.
3.05. Quorum and Adjourned Meetings. Twenty-five (25%) percent
of the authorized votes (including any held by Declarant) present in
person, by proxy or by mail ballot shall constitute a quorum for the
transaction of business at a meeting of the membership except where
otherwise provided by law. In the absence of a quorum, a majority of the
votes present in person or by proxy may adjourn the meeting from time to
time,
until
a
quorum
shall
be
present
or
represented.
Ac
any
such
adjourned meeting at which a quorum may be present any business may be
transacted which might have been transacted at the meeting originally
called.
3.06. Organization. Ac each meeting of the Association, the
President or, in his absence, the Vice President, or in the absence of
both of them, a person chosen by a majority vote of the Members in Good
Standing present in person or represented by proxy, shall act as a
chairperson, and the Secretary, or in his absence, a person whom the
chairperson shall appoint, shall act as Secretary of the meeting.
3.07. Voting on Questions. Only Golf Members in good standing
at least three (3) days prior to any meeting at which a vote is to occur
shall be entitled to vote on questions. A majority in interest of votes
present in person or by proxy at any
-7-
duly constituted meeting of the membership or by mail ballot shall be
sufficient on those questions submitted to a vote of the membership. The
vote on any question at a meeting need not be taken by ballot, unless (i)
the chairperson of the meeting determines a ballot to be advisable, or
(ii) a majority in interest of the votes present at the meeting determine
that the vote on the question submitted shall be taken by ballot.
3.08. Voting in Elections of Trustees. Only Golf Members in
good standing at least three (3) days prior to any meeting at which an
election is to occur shall be entitled to vote in elections of Trustees.
Each such membership shall be entitled to one (1) vote for each Home to
which he holds title which is subject to the Declaration with respect to
all elections and other matters to be voted upon by the Members. The
election
of
Trustees
shall
be
conducted
by
written
ballot.
If
with
respect to any election more than twice the number of candidates to be
elected are nominated, then there shall be two ballots cast. At the end
of the tabulation of the first ballot, the field of nominees shall be
reduced so that there are twice as many candidates as there are positions
to
be
filled,
with
the
persons
receiving
the
fewest
votes
being
eliminated from the ensuing ballot. A second vote shall be held, and on
the second vote, the persons receiving the plurality of votes will be
deemed to be elected in order to fill the vacant positions. If there are
not more than twice the number of nominees for the number of positions to
be filled, then there shall be one vote, with the persons receiving the
highest numbers of votes being
-8-
elected in order to fill the vacancies on the Board. If ever applicable,
candidates
polling
the
highest
numbers
of
votes
will
be
considered
elected for the longest period of years. Election of Trustees at all
meetings shall be in accordance with this Section 3.08.
3.09.
Ballot
by
Mail.
The
Board,
in
lieu
of
calling
a
membership meeting, may submit any question, or election other than a
Transition Election, to a vote of the membership by a ballot by mail. No
ballot by mail shall be valid or tabulated unless the signature of the
Golf Member(s) submitting the ballot has been verified on the ballot in
accordance with procedures established by the Board. Only a Golf Member
in Good Standing shall be entitled to vote. The Board shall appoint
inspectors to tabulate the ballot whose report shall be included in the
minute
book.
In
order
to
conduct
a
ballot
by
mail
for
a
question
submitted to a vote of the membership, the Board shall serve a notice
upon all members which shall (i) state with specificity in terms of
motion (s) the question(s) upon which the vote is to be taken; (ii) state
the date by which ballots must be received in order to be counted; (iii)
provide an official ballot for the purposes of the vote; and (iv) state
the date upon which the action contemplated by the motion(s) shall be
effective, which date shall be not less than ten (10) days after the date
ballots must be received. No actions contemplated by a question submitted
to a ballot by mail shall be taken unless a majority in interest of all
Golf Members in Good Standing submit ballots approving such action.
-9-
In
order
to
conduct
a
ballot
by
mail
for
an
election
of
Trustees, the Board shall serve a notice upon all Golf Members which
shall (i) provide an official ballot for the purposes of the election;
and (ii) state the date by which the ballot must be received in order to
be counted. No ballot shall be counted if the Golf Member casting same is
not in good standing at least three (3) days prior to the date set for
the ballot to be received.
3.10. Proxies. Voting by proxy shall be permitted with respect
to all elections of Trustees, and all amendments to the Certificate of
Incorporation, the Declaration or these By-Laws, or any other matter
which is to come before a meeting of the membership of the Association.
All proxies shall be in writing, signed by all individual Golf Members
(or in the case of joint Members by any one of them), or by his or their
duly authorized representative (s) and delivered to the Secretary of the
Association, or such other person as the President may designate, prior
to the opening of the polls at the meeting at which ballots are to be
cast. Proxies may be revoked at any time prior to the opening of the
polls, and no proxy shall be valid after eleven (11) months from its date
unless said proxy provides for a longer period, not to exceed three (3)
years from the date of execution. All proxies shall be substantially in
the form prescribed by the Board, and if not in such form, shall be
deemed invalid which determination shall be made in the sole and absolute
discretion of the Board.
3.11. Inspectors. If, at any membership meeting a vote by
ballot shall be taken, the chairperson of such meeting shall
-10-
appoint two (2) persons to act as Inspectors with respect to the ballots.
Each Inspector so appointed shall first subscribe an oath to execute
faithfully
the
duties
of
an
Inspector
with
strict
impartiality
and
according to the best of his ability. Such Inspectors shall decide upon
the
qualifications
of
voters
and
shall
report
the
number
of
votes
represented at the meeting and entitled to be cast, shall conduct and
accept the votes, and when the voting is completed, shall ascertain and
report to the Secretary the number of votes for and against the questions
or candidates respectively. Reports of Inspectors shall be in writing and
subscribed and delivered by them to the Secretary of the meeting. The
Inspectors need not be Golf Members of the Association and any officer or
Trustee of the Association may be an Inspector on any question, other
than a vote for or against his election or any other question in which he
may be directly interested.
3.12. Order of Business. The order of business at the annual
meeting of the Members or at any special meetings insofar as practicable
shall be:
(a) Calling of the roll and certifying the proxies.
(b) Proof of notice of meeting and waiver of notice.
(c) Reading and disposal of any unapproved minutes.
(d) Appointment of Inspectors of election, if appropriate.
(e) Election of Trustees, if appropriate.
(f) Receiving reports of officers.
-11-
(g)
Receiving reports of committees.
(h)
Old business.
(i)
New business.
(j)
Adjournment.
Article IV.
4. The Board of Trustees.
4.01.
Qualifications.
The
following
criteria
shall
be
qualifications for nomination, appointment or election to a Trusteeship.
(a) Membership in Good Standing: Golf Membership in Good
Standing shall be a qualification of any nominee or appointee to a
Trusteeship and for continued service on the Board.
(b)
Representation:
Partnerships,
corporations,
fiduciaries or owners holding Golf Memberships in Good Standing may
designate
one
(1)
individual
per
Home
owned
to
be
eligible
for
nomination, appointment, or election as Trustees in accordance with the
following qualifications:
(i)
Partnership
designees
shall
be
members,
employees or agents of the partnership;
(ii)
Corporate
designees
shall
be
officers,
stockholders, employees or agents of the corporation;
(iii)
Fiduciary
designees
shall
be
fiduciaries,
officers, or employees of the fiduciary; and
(iv) Co-Members holding a Golf Membership in Good
Standing may designate any one of them but only one of them to be
eligible for nomination, appointment, or election as a
-12-
Trustee; however, in the case of any disagreement, the express consent of
a majority in interest of such Co-owners shall be required.
(c)
Disqualification
of
Trustees.
Any
Trustee
whose
membership in the Association is not in good standing for thirty (30)
consecutive days shall automatically be disqualified as a Trustee upon
expiration of said thirty (30) day period and a replacement shall be
appointed by the Board within thirty (30) days thereafter to serve the
remainder of the term as contemplated by Section 8.04 hereof. Despite the
aforesaid, any Trustee who conveys title to his Home and no longer holds
title
to
any
other
Home
is
automatically
disqualified
as
a
Trustee
effective on the date of said conveyance.
4.02. Number. The Board shall initially consist of three (3)
Trusteeships, who shall be appointees of the Declarant. Within sixty (60)
days after the number of Greenbriar Members reaches 300, the Board shall
be expanded to five (5) Trusteeships, designated Trusteeships "A," "B,"
"C." "D," and "E."
4.03.
Transition
Elections.
Within
thirty
(30)
days
after
there are 300 Greenbriar Members, the President shall call either the
first annual meeting or a special meeting of the membership of the
Association for the purpose of holding the first election of Golf Members
to the Board ("Transition Election"). At the meeting, Golf Members shall
be entitled to vote for and elect Trustees A and B from among such Golf
Members in accordance with
-13-
the provisions of Article III of these By-Laws, and the Declarant shall
be entitled to appoint Trustees C, D, and E.
Within sixty (60) days after there are 900 Greenbriar Members,
the President shall call a meeting of the membership of the Association
for the purpose of holding a second Transition Election. At this meeting,
Golf Members shall be entitled to vote for and elect Trustees C and D
from among the Golf Members in accordance with the provisions of Article
III of these By-Laws and the Developer shall be entitled to appoint
Trustee E.
Within sixty (60) days after all Homes in the Community have
been initially conveyed, the President shall call a meeting for the third
Transition Election at which Golf Members shall be entitled to vote for
and elect Trustee E from among such Golf Members in accordance with the
provisions of Article III hereof; provided that the Declarant shall be
entitled in its discretion to relinquish Trusteeship E at the time of the
second Transition Election or anytime thereafter prior to the conveyance
of the last Home .
Further, only Golf Members in Good Standing shall be eligible
to be nominated, elected, or to serve on the Board, except that in the
case of any Golf Member which is a partnership or corporation, a designee
shall be eligible if the Golf Member is a Member in Good Standing.
Notice of all special meetings called pursuant to this Section
for the purpose of holding Transition Elections shall be
-14-
given not less than twenty (20) nor more than thirty (30) days prior to
the date of the meeting.
4.04. Term of Office. Declarant-appointed Trustees A and B
shall serve until their successors have been qualified and elected at the
First
Transition
Election.
Trustees
A
and
B
elected
at
the
First
Transition Election shall serve terms expiring at the annual meeting of
the membership held in the second calendar year following the year in
which the first Transition Election is held. Thereafter, Trustees A and B
shall serve for two (2) year terms.
Declarant-appointed Trustees C and D shall serve until their
successors have been qualified and elected at the second Transition
Election held pursuant to Section 4.03 herein. If (i) the first and
second Transition Elections are held in the same calendar year, or (ii)
the second Transition Election is held in a calendar year in which the
terms of Golf Member elected Trustees A and B expire, then Trustees C and
D elected at the second Transition Election shall serve terms expiring at
the annual meeting of the membership held in the third calendar year
following the year in which the second Transition Election is held;
otherwise Trustees C and D elected at the second Transition meeting shall
serve terms expiring at the annual meeting of the membership held in the
second calendar year following the year in which the second Transition
Election is held. Thereafter, Trustees C and D shall serve for two (2)
year terms.
Declarant-appointed Trustee E shall serve until his successor
has been elected and qualified at the second or third
-15-
Transition Election. The first Golf Member elected Trustee E
shall serve a term expiring upon the expiration of the terms of the
Trustees C and D then in office. Thereafter, Trustee E shall serve for
two-year terms.
It is the purpose and intent hereof that subsequent to all
Transition Elections, the election of Trustees A and B shall be held in
alternate years to the election of Trustees C, D and E.
4.05. Removal of Members of the Board. At any duly held and
constituted regular or special meeting of the Members, any one or more
Trustees may be removed with or without cause by vote of the Golf Members
present, provided that the notice of the meeting expressly includes this
item. A successor may then and there be elected by a majority of the
remaining Trustees to fill the vacancy thus created. Each person so
appointed shall be a Trustee for the remainder of the term of the Trustee
whose term he is filling and until his successor is duly elected and
qualified. Any Trustee whose removal has been proposed shall be given an
opportunity to be heard at the meeting. The provisions of this Section
4.05 shall not apply to any Trustee appointed by the Developer. Any
Trustee whose removal has been proposed shall be given an opportunity to
be heard at the meeting but the failure of any Trustee to be a Member in
Good Standing for a period of thirty (30) days or more shall be grounds
for automatic removal without any vote of the members.
Despite
the
foregoing,
a
Member-elected
Trustee
removed except by a majority vote (in number) of the Golf
-16-
cannot
be
Members present other than the Declarant, but the failure of any Trustee
to be a Member in Good Standing for a period of thirty (30) days or more
shall be grounds for automatic removal without any vote of the members.
In the event that all of the Golf Member-elected Trustees are removed,
successors shall be elected by the Golf Members other than the Declarant
in the manner set forth in Article IV, Section 4.03 herein to fill the
vacancies thus created.
4.06. Vacancies. Vacancies on the Board caused by any reason other
than the removal of a Trustee by a vote of the Golf Members shall be
filled by a vote of a majority of the remaining Trustees, including the
Developer's appointees, at a special meeting of the Board held for that
purpose promptly after the occurrence of any such vacancy. Each person so
elected shall be a Trustee for the remainder of the term of the Trustee
whose term he is filling and until his successor shall have been duly
elected and qualified. Despite the foregoing, until the first Transition
Election, Declarant shall have the right to fill all vacancies on the
Board by appointment. Golf Member-elected vacancies on the Board shall
only be filled by Golf Members, whether same be elected pursuant to the
provisions herein, or of Section 4.05.
Article V
5.
Transaction of Business by the Board of Trustees.
5.01. Express and Implied Powers and Duties. The property,
affairs and business of the Association shall be managed by the Board,
which shall have all those powers granted to it by
-17-
the Certificate of Incorporation, the Declaration, these By-Laws and by
law.
5.02.
Declarant's Protective Provisions.
a. After control of the Board is vested in Trustees by
Golf Members and so long as the Declarant owns at least one (1) Home and
holds same for sale in the ordinary course of business, the following
shall apply and shall not be amended:
(1)
Neither
the
Association
nor
its
Board
of
Trustees shall take any action that will impair or adversely affect the
rights of the Declarant or cause the Declarant to suffer any financial,
legal or other detriment, including but not limited to any direct or
indirect interference with the sale of Homes, or the assessment of the
Declarant for capital improvements.
(2) The Association and its Board of Trustees shall
continue
the
same
level
provided
immediately
of
prior
maintenance,
to
the
operation
assumption
of
and
services
control
of
as
the
Association and the Board of Trustees by the Golf Members.
(3) In furtherance of the foregoing provisions, the
Declarant shall have the right to veto any and all actions of the
Association
or
the
Board
which
may
have
any
direct
or
indirect
detrimental impact upon the Declarant as may be determined in the sole
reasonable discretion of the Declarant.
(4) The Declarant shall exercise its veto right, in
its sole and absolute discretion, within ten (10) days after its receipt
of notice that a resolution or other action is proposed or has been taken
by the Association or its Board of
-18-
Trustees. In such event, the Declarant shall notify the Secretary of the
Association of its exercise of its veto right and any such proposal or
action shall be deemed null and void ab initio and of no further force or
effect.
b. The aforementioned protective provisions shall be construed
in accordance with and not in derogation of N.J.A.C. 5:26-8.4 et seq. of
the regulations promulgated pursuant to the New Jersey Planned Real
Estate Development Full Disclosure Act, N.J.S. 45:22A-21 et seq.
5.03. Meeting of the Board; Notice to Trustees; Waiver of
Notice. The first annual meeting of the Board shall be held within ten
(10) days after the first annual meeting of the Members and at such time
and place as shall be fixed by a majority of the Board and no notice
shall be necessary. Thereafter, regular meetings of the Board may be held
at: such time and place as shall be determined from time to time by a
majority of the Board, but at least two (2) meetings shall be held each
year. Notice of regular meetings of the Board shall be given to each
Trustee by telephone, mail, or telegram at least three (3) days prior to
the day of the meeting. Special meetings of the Board may be called by
the
President
on
three
(3)
days
notice
to
each
Trustee
given
by
telephone, mail or telegram, which notice shall state the time, place and
purpose of the meeting. Special meetings of the Board shall be called by
the President or the Secretary in like manner and on like notice on the
written request of at least three (3) Trustees. Any Trustee may, at any
time, waive notice of any
-19-
meeting
of
the
Board
in
writing
and
such
waiver
shall
be
deemed
equivalent to the giving of notice. Actual attendance by Trustees at any
meeting of the Board shall constitute a waiver of notice by him of the
time and place thereof. If all the Trustees are present at any meeting of
the Board, no notice shall be required and any business may be transacted
at such meeting.
5.04. Quorum and Adjourned Meetings. At all meetings of the
Board, a majority of the Trustees shall constitute a quorum for the
transaction of business and the votes of a majority of the Trustees
present and voting at a meeting at which a quorum is present shall
constitute a valid decision. If at any meeting of the Board there shall
be less than a quorum present, the majority of those present shall
adjourn the meeting to a new date. At any such adjourned meeting at which
a quorum is present, any business which may have been transacted at the
original meeting may be transacted without further notice. The vote of a
majority of those present at a Board meeting at which a quorum is present
shall be necessary for valid action by the Board on any matter.
5.05.
Joinder
in
Meetings
by
Approval
of
Minutes.
The
transaction of any business at any meeting of the Board however called
and noticed or wherever held, shall be valid as if transacted at a
meeting duly held after regular call and notice, if (i) a quorum is
present; and if (ii) either before or after the meeting, each Trustee
signs a written waiver of notice, or a consent to the holding of the
meeting, or an approval of the minutes thereof or of the resolution or
act adopted at such
-20-
meeting. All such waivers, consents or approval, shall be in writing and
filed with the Secretary and made a part of the minutes of the meeting
even though filed subsequent thereto.
5.06. Non-Waiver. All the rights, duties and privileges of the
Board shall be deemed to be continuing and shall not be exhausted by any
single act or series of acts. To the same extent, the failure to use or
employ any remedy or right hereunder or hereafter granted shall not
preclude its exercise in the future nor shall any custom bind the Board.
5.07. Consent in Lieu of Meeting and Vote. Despite anything to
the contrary in these By-Laws, the Certificate of Incorporation or the
Declaration despite, the entire Board of Trustees shall have the power to
take action on any matter on which it is authorized to act, without the
necessity of a formal meeting and vote, if the entire Board, or all the
Trustees empowered to act, whichever the case may be, shall consent in
writing to such act ion.
5.08. Meetings Open to Members; Notice. All Board Meetings
shall be open to attendance by all Members, subject to those exceptions
set
forth
in
N.J.S.A.
46:8B-13a
and
N.J.A.C.
5:20-1.1,
as
now
or
hereafter amended. The Board may exclude or restrict attendance at those
meetings, or portions of meetings, at which any of the following matters
are
to
be
constitute
discussed:
an
(1)
unwarranted
any
matter
invasion
of
the
disclosure
individual
of
which
privacy;
would
(2)
any
petition or anticipated litigation or contract negotiations; (3) any
matters falling within
-21-
the attorney-client privilege, to the extent that confidentiality is
required in order for the attorney to exercise his ethical duties as a
lawyer; or (4) any matter involving the employment, promotion, discipline
or
dismissal
of
a
specific
officer
or
employee
of
the
Association.
Adequate written notice of the date, time, place and agenda of all such
open meetings shall be given by the Board to all Members at least fortyeight (48) hours in advance of such meeting in the manner required by
N.J.A.C. 5:20-1.2(b). Moreover, the Board shall also, within seven (7)
days following the Annual Meeting of the Association, post, mail to
newspapers and file with the administrator of the business office of the
Association a schedule of the regular Board Meetings to be held in the
succeeding
year,
as
prescribed
by
N.J.A.C.
5:20-1.2(c)
and
make
appropriate revisions thereto, all as required by N.J.A.C. 5:20-1.2(c)l.
Article VI.
6.01.
General
Powers
and
Privileges.
Subject
to
the
Declaration or other instruments of creation, the Association may do all
it is legally entitled to do under the laws applicable to its form of
organization. The Association shall discharge its powers in a manner that
protects and furthers the health, safety and general welfare of the
Members and protects property values in the Community. The Association
shall
provide
a
fair
and
efficient
procedure
for
the
resolution
of
disputes between individual Members and the Association, and between
different Members, that shall be readily available as an alternative to
litigation.
-22-
The property, affairs and business of the Association shall be
managed by the Board of Trustees, which shall have all those powers
granted to it by the Certificate of Incorporation, the Declaration, these
By-Laws, and by law.
The Board shall have those powers, which include but which are
not necessarily limited to the following, together with such other powers
as
may
be
provided
herein
or
in
the
Declaration,
or
which
may
be
necessarily implied.
a.
To
employ,
by
contract
or
otherwise,
a
manager,
managing agent or an independent contractor, to oversee, supervise and
carry
out
the
responsibilities
of
the
Board.
Said
manager
or
said
independent contractor shall be compensated upon such terms as the Board
deems necessary and proper; and
b. To employ professional counsel and to obtain advice
from
persons,
firms
or
corporations
such
as,
but
not
limited
to,
landscape architects, architects, engineers, lawyers and accountants; and
c. To adopt, amend, and publish Rules and Regulations
covering the details of the operation and use of the Golf Course; and
d. To enforce obligations of the Members and do anything
and everything else necessary and proper for the sound management of the
Golf Course, including the right to bring or defend lawsuits to enforce
the terms, conditions and restrictions contained in the Declaration,
these By-Laws, or any Rules and Regulations; and
-23-
e. To borrow and repay monies, giving notes, mortgages or
other security upon such term or terms as it deems necessary; and
f.
To
invest
and
reinvest
monies;
sue
and
be
sued;
collect interest, dividends, and capital gains; exercise rights; pay
taxes; make and enter into contracts; enter into leases or concessions;
make and execute any and all proper affidavits for various purposes;
compromise
any
action
without
leave
of
court;
and
all
other
powers
contained herein, and those necessary and incidental thereto; and
g. To transfer, grant or obtain easements, licenses, and
other property rights with respect to the Golf Course in a manner not
inconsistent with the rights of Members; and
h.
To
create,
appoint
members
to
and
disband
such
committees as shall from time to time be deemed appropriate or necessary
to aid the Board in the discharge of its duties, functions and powers.
6.02. Duties and Responsibilities. It shall be the affirmative
and perpetual obligation and duty of the Board to perform the following:
a. To cause the Golf Course and related facilities to be
maintained according to accepted standards; and
b. To investigate, hire, pay, supervise and discharge the
personnel
necessary
to
be
employed,
and
provide
the
equipment
and
materials necessary, in order to properly maintain and operate the Golf
Course and related facilities. Compensation
-24-
for the services of such employees (as evidenced by certified payroll)
shall be considered an operating expense of the Association; and
c.
To cause to be kept a complete record of all its
acts and corporate affairs and to present a summary report thereof to the
Members at the annual meeting or at any special meeting when requested in
writing at least twenty-one (21) days in advance by Members entitled to
cast
at
least
twenty-five
(25V)
percent
of
the
common
surplus
total
votes
of
the
Association; and
d.
To
allocate
or
make
repairs,
additions, improvements to. or restoration of the Golf Course and related
facilities in accordance with the provisions of these By-Laws and the
Declaration after damage or destruction by fire or other casualty, or as
a result of condemnation or eminent domain proceedings; and
e.
To take such action as may be necessary to comply
promptly with any and all orders or requirements affecting the premises
maintained by the Association placed thereon by any federal, state,
county or municipal authority having jurisdiction thereover, and order of
the Board of Fire Underwriters or other similar bodies; and
f.
hereinafter provided in Article VII; and
g.
To place and keep in force all insurance coverages
required to be maintained by the Association, applicable to its property
and Members including, but not limited to:
-25-
(i)
Physical
Damage
Insurance.
To
the
extent
available in the normal commercial marketplace, broad form insurance
against loss by fire and against loss by lightning, windstorm and other
risks normally included within all risk extended coverage, including
vandalism and malicious mischief, insuring all insurable property of the
Association, all service machinery appurtenant thereto, as well as common
personalty belonging to the Association, and covering the interest of the
Association, the Board, the Declarant, and all Members and any Mortgage
Holder who has requested the Association in writing to be named as loss
payee, as their respective interests may appear, in an amount equal to
the full replacement value of the insured Property, without deduction for
depreciation. Each policy shall contain a standard mortgage clause in
favor of each applicable Mortgage Holder, its successors and assigns,
which shall provide that the loss, if any, thereunder, shall be payable
to each applicable Mortgage Holder as its interest may appear. The amount
of any deductible and the responsibility for payment of same shall be
determined by the Board, in its sole discretion.
(ii)
obtainable
in
the
Public
normal
Liability
commercial
Insurance.
marketplace,
To
public
the
extent
liability
insurance for personal injury and death from accidents occurring within
the Golf Course including the pro shop, maintenance facility and any
other areas which the Board may deem advisable, and the defense of any
actions brought by injury or death of a person or damage to property,
occurring within the Golf Course, and not
-26-
arising by reason of any act or negligence of any individual Member. Said
insurance shall be in such limits as the Board may, from time to time,
determine, covering each Member of the Board, the managing agent, the
manager, and each Member, and shall also cover cross liability claims of
one
insured
against
another.
Until
the
first
meeting
of
the
Board
following the first annual meeting, such public liability insurance shall
be in a single limit of not less than $1,000,000 covering all claims for
personal injury or property damage arising out of any one occurrence. The
Board shall review such limits once a year.
(iii) Trustees' and Officers' Liability Insurance.
To the extent obtainable in the normal commercial marketplace, liability
insurance
indemnifying
the
Trustees
and
Officers
of
the
Association
against liability for errors and omissions occurring in connection with
the performance of their duties in an amount of at least $1,000,000.00,
with any deductible amount to be in the sole discretion of the Board.
(iv) Workers'
Compensation
Insurance.
Workers'
compensation and New Jersey disability benefits insurance as required by
law.
(v)
obtainable
in
the
Vehicular Liability Insurance. To the extent
normal
commercial
marketplace,
vehicular
liability
insurance to cover all motor vehicles, if any, owned or operated by the
Association.
(vi) Other Insurance. Such other insurance as the
Board may determine to be appropriate.
-27-
All
agreed
policies
amount
endorsement;
and
shall:
(i)
inflation
demolition
cost
to
guard
the
extent
obtainable
endorsements;
endorsement;
contain
construction
contingent
liability
code
from
operation of building laws endorsement and increased cost of construction
endorsement; (ii) to the extent obtainable contain waivers of subrogation
and waivers of any defense based on coinsurance or of invalidity arising
from any acts of the insured; and (iii) provide that such policies may
not be cancelled without at least thirty (30) days prior written notice
to all of the named insureds.
Any insurance maintained by the Board may provide for such
deductible
amount
as
the
Board
may
determine.
Despite
any
other
provisions of this subparagraph, the Association shall not be required to
provide any type or amount of insurance not commonly available in the
normal commercial marketplace.
The premiums for any and all insurance coverage maintained by
the Association shall be a common expense of the Association .
Article VII.
7. Fiscal Management.
7.01.
Budget;
Common
Expense
Assessments.
The
Board
shall
prepare an annual Common Expense Budget which reflects the anticipated
operating expenditures and repair and replacement reserve accumulation
requirements for the next ensuing fiscal year of the Association. Common
Expenses shall include, but not be limited to, the estimated costs for
the operation, repair and
-28-
maintenance of the Golf Course related facilities, the estimated costs
for the operation of the Association, and any reserves for deferred
maintenance, replacement or capital improvements.
The
Board
shall
have
the
duty
to
collect
from
each
Golf
Member, his heirs, administrators, successors and assigns, as "Annual
Common Expense Assessments", the proportionate part of the Annual Common
Expenses
assessed
against
such
Golf
Member
as
provided
in
the
Declaration, the Certificate of Incorporation, these By-Laws, and in
accordance with applicable law.
7.02. Determination of Annual Common Expenses. The amount of
monies for Annual Common Expenses deemed necessary by the Board and the
manner
of
expenditure
thereof,
including
but
not
limited
to,
the
allocation thereof, shall be a matter for the sole discretion of the
Board.
7.03. Disbursements. The Board shall take and hold the funds
as collected and shall disburse the same for the purposes and in the
manner set forth herein and as required by the Declaration, Certificate
of Incorporation, and applicable law.
7.04. Depositories. The depository of the Association shall be
such bank or banks as shall be designated from time to time by the Board
and in which the monies of the Association shall be deposited. Withdrawal
of monies from such accounts shall be only by checks signed by such
parties
as
are
authorized
by
the
Board,
provided
that
a
management
agreement may include among its provisions authority for a manager to
sign checks on behalf of the
-29-
Association for payment of the obligations of the Association, if the
proper fidelity bond is furnished to the Association.
7.05.
Association
Accounts.
shall
be
The
Common
receipts
Expense
and
expenditures
Assessments
and
Common
of
the
Expenses
respectively, and shall be credited and charged to accounts under the
following classifications as the Board shall deem appropriate, all of
which expenditures shall be Common Expenses:
(i)
Current
expenses,
which
shall
include
expenditures within the year for which the budget is made, including
reasonable
allowances
for
contingencies
and
working
funds.
Current
expenses shall not include expenditures chargeable to reserves. At the
end of each year, any unexpended amount remaining in this account shall
be
applied
to
reduce
the
assessments
for
current
expenses
for
the
succeeding year, or distributed to the Membership in the same manner as
assessed, as the Board shall determine.
(ii) Reserve for deferred maintenance, which shall
include funds for maintenance items that occur less frequently than
annually.
(iii) Reserve for replacement, which shall include
funds for repair or replacement of the Golf Course and those portions of
the
related
facilities
for
which
repair
or
replacement
is
required
because of damage, depreciation or obsolescence. The amounts in this
account shall be allocated among each of the separate categories of
replacement items.
-30-
(iv) Reserves for capital improvements, which shall
include the funds to be used for capital expenditures or for acquisition
of additional personal property.
(v)
Operations, which shall include all funds from
the use of the Golf Course and related facilities or from any other
sources. Only the additional direct expense required by any revenue
producing operation will be charged to this account, and any surplus from
any operation or otherwise shall be used to reduce the assessments for
current expenses for the year during the one in which the surplus is
realized, or at the discretion of the Board, in the year following the
one in which the surplus is realized. Losses from operations or otherwise
shall be met by special assessments against the Golf Members, which
assessments may be made in advance in order to provide a working fund.
(vi) Working
nonrefundable
and
capital,
nontransferable
consisting
contributions
of
assessed
upon
those
each
Whittingham, Member, which may be utilized by the Board in its reasonable
discretion to meet unanticipated or other expenses of the Association.
7.06.
Reserves. The Board shall not be obligated to expend
all of the reserves collected in any accounting period, and must maintain
reasonable
reserves
emergencies,
for,
contingencies
among
of
other
bad
things,
weather
or
repairs,
replacements,
uncollected
accounts.
Despite anything herein to the contrary, the Board in its determination
of the Common Expenses and the preparation of a budget shall specifically
designate and identify that
-31-
portion of the Common Expenses which is to be assessed against the Golf
Members as a capital contribution and is allocable to reserves for each
separate item of capital improvement of and to said property. The amounts
assessed and collected for the reserves shall be kept in one or more
interest-bearing savings accounts, or certificates of deposit and shall
not be utilized for any purpose other than that which was contemplated at
the time of the assessment. The foregoing shall not be construed to mean
that the Board shall not be permitted to keep additional cash on hand, in
a checking or petty cash account, for the necessary discharge of its
functions.
7.07. Notice; Emergencies. The Board shall give written notice
to each Golf Member of the amount estimated by the Board for Common
Expenses for the management and operation of the Association for the next
ensuing budget period, directed to the Golf Member at his last known
address by ordinary mail, or by hand delivery. Said notice shall be
conclusively presumed to have been delivered five (5) days after deposit
in the United States mails. After the Declarant turns over control of the
Board to the Golf Members, if an Annual Common Expense Assessment is not
made as required, an Assessment shall be presumed to have been made in
the amount of the last prior year's Assessment, and monthly installments
on such Assessment shall be due upon each installment payment date until
changed by an amended Assessment. In the event the Annual Common Expense
Assessment proves to be insufficient, the budget and Assessments may be
amended at any time by the Board, provided that
-32-
nothing herein shall serve to prohibit or prevent the Board from imposing
an Emergency Assessment in the case of any immediate need or emergency
which cannot be met by funds earmarked for such contingency.
7.08. Acceleration of Assessment Installment upon Default. If
a Golf Member shall be in default less than thirty (30) days in the
payment of an installment upon any type of assessment, the Board may
notify the delinquent Golf Member that the remaining installments of the
assessment shall be accelerated if the delinquent installment has not
been paid by a date stated in the notice, which date shall not be less
than five (5) days after delivery of the notice to the Golf Member, or
not less than ten (10) days after the mailing of such notice to him by
registered or certified mail. If default shall continue for a period of
thirty (30) days then the Board shall be required to give notice. If
default
continues
following
the
time
for
payment
prescribed
in
the
notice, then the Board shall he required to accelerate the remaining
installments of the assessment and notify the delinquent Golf Member that
a lien for the accelerated amount shall be filed against the delinquent
Golf
Member's
Home
on
a
date
certain
stated
in
the
notice
if
the
accelerated balance has not then been paid. The lien for such accelerated
assessment as permitted by law shall then be filed if the delinquent
assessment has not been theretofore paid and the Board may also publish
appropriate
notice
of
such
delinquency
to
the
membership
of
the
Association. If said default continues for a period of ninety (90) days,
then the Board shall
-33-
foreclose
the
independent
foregoing
suit
lien
against
pursuant
the
to
law
appropriate
and/or
parties
commence
to
collect
an
the
Assessment.
7.09. Interest and Counsel Fees. The Board at its option shall
have
the
right
in
connection
with
the
collection
of
any
type
of
assessment, or other charge, to impose a late charge of any reasonable
amount and/or interest at the legal maximum rate permitted by law for the
payment of delinquent real estate taxes, if such payment is made after a
date certain stated in such notice. In the event that the Board shall
effectuate
collection
of
said
Assessments
or
charges
by
resort
to
counsel, and/or the filing of a lien, the Board may add to the aforesaid
Assessments or charges a sum or sums of twenty (20%) percent of the gross
amount due as counsel fees, plus the reasonable costs for preparation,
filing and discharge of the lien, in addition to such other costs as may
be allowable by law.
7.10.
Assessment
of
Expenses
in
Actions
by
or
against
Association; Allocation of Awards.
a.
Common
Expenses.
In
the
case
of
any
action
or
proceeding brought or defended by the Association or the Board pursuant
to the provisions of the Declaration, Certificate of Incorporation, these
By-Laws, or any Rule or Regulation, the reasonable costs and expenses of
preparation and litigation, including attorneys' fees, shall be Common
Expenses charged to all Golf Members.
-34-
All
Common
Expense
Assessments
received
and
to
be
received by the Board, for the purpose of paying any judgment obtained
against the Association or the Board and the right to receive such funds,
shall constitute trust funds and the same shall be expended first for
such purpose before expending any part of the same for any other purpose.
b. Recovery by Home Owner. In the event that a Home
Owner(s)
succeeds
in
obtaining
a
judgment
or
order
against
the
Association or the Board, then in addition to any other sums to which
said Owner(s) would otherwise be entitled by such judgment or order, he
or they shall also be entitled to the restitution or recovery of any sums
paid to the Board as Common Expense Assessments for litigation expenses
in relation to said action or proceeding.
7.11. Annual Audit. The Board shall submit the books, records,
and memoranda of the Association to an annual audit by an independent
certified public accountant who shall audit the same and render a report
thereon in writing to the Board and in summary form to the Members or
other persons, firms or corporations as may be entitled to same. While
the Declarant maintains a majority of the Board, he shall have an annual
audit of Association funds prepared by an independent accountant, a copy
of which shall be delivered to each Member within ninety (90) days of the
expiration of the fiscal year of the Association. The audit shall cover
the operating budget and reserve accounts.
-35-
Bad Text Copy
Examination of Books. Each Member shall be
?-T?.ine the books of account of the Board by appointices of the Association or such other place as may
therefor by the Board at a reasonable time on
provided, however, that the Treasurer has been given
___ days prior written notice of the Member's desire
examination.
Fidelity Bonds. Fidelity bonds shall be required
by all persons handling or responsible for Associaamount of such bonds shall be determined by the
j~ on such bonds shall be paid by the Association.
Article VIII.
Designation. The principal officers of the
___be a President, a Vice-President, both of whom
of the Board, a Secretary and a Treasurer. The
Appoint such other Assistant Treasurers and
____es as in its judgment may be necessary. Any two
___pt that of President and Vice-President, may be
Election
of
Officers.
The
officers
of
the
___
be
elected
annually by the Board at its first ___ each annual meeting and such
officers shall hold Assure of the Board.
Removal of Officers. Upon an affirmative vote of the full
number of Trustees, any officer may be
-36-
removed, either with or without cause, after opportunity for a hearing,
and his successor elected at any regular meeting of the Board, or at any
special meeting of the Board called for such purpose.
8.04. Duties and Responsibilities of Officers.
a.
The President shall be the chief executive officer
of the Association. He shall preside at all meetings of the Association
and the Board. He shall have all of the general powers and duties which
are usually vested in the office of President of an Association.
b.
The
Vice-President
shall
take
the
place
of
the
President and perform his duties whenever the President shall be absent
or unable to act. If neither the President nor the Vice-President is able
to act, the Board shall appoint some other Trustee to so do on an interim
basis. The Vice-President shall also perform such other duties as shall
from time to time be imposed upon him by the Board.
c.
The Secretary shall keep the minutes of all meetings
of the Board and the minutes of all meetings of the Members of the
Association; he shall have charge of such books and papers as the Board
may direct; and he shall, in general, perform all the duties incident to
the office of the Secretary.
d.
The Treasurer shall have the responsibility for the
custody of Association funds and securities and shall be responsible for
keeping full and accurate accounts of all receipts and disbursements in
books belonging to the Association. He shall
-37-
be responsible for the deposit of all monies and other valuable effects
in the name and to the credit of the Association in such depositories as
may from time to time be authorized by the Board.
8.05. Other Duties and Powers. The officers shall have such
other duties, powers and responsibilities as shall, from time to time, be
authorized by the Board.
8.06. Eligibility of Trustees. Nothing herein contained shall
prohibit a Trustee from being an officer.
Article IX.
9. Compensation, Indemnification and Exculpation.
9.01.
Compensation.
No
compensation
shall
be
paid
to
the
President or the Vice-President or any Trustee, or committee member for
acting as such officer or Trustee. The Secretary and/or Treasurer may be
compensated
for
their
services
if
the
Board
determines
that
such
compensation is appropriate. Nothing herein stated shall prevent any
officer, Trustee or committee member from being reimbursed for out-ofpocket
expenses
or
compensated
for
services
rendered
in
any
other
capacity to or for the Association, provided, however, that any such
expenses incurred or services rendered shall have been authorized in
advance by the Board.
9.02.
member
of
the
Indemnification.
Association,
Each
shall
be
Trustee,
officer
indemnified
by
or
the
committee
Association
against the actual amount of net loss including counsel fees, reasonably
incurred by or imposed upon him in connection with any action, suit or
proceeding to which he may be a party by reason of his being or having
been a Trustee, officer, or committee member
-38-
of the Association, except as to matters for which he shall be ultimately
found
in
such
misconduct.
action
In
the
to
be
event
liable
for
of
settlement
a
gross
negligence
of
any
or
such
willful
case,
indemnification shall be provided only in connection with such matters
covered by the settlement as to which the Association is advised by
counsel that the person to be indemnified had not been guilty of gross
negligence or willful misconduct.
9.03. Exculpation. Unless acting in bad faith, neither the
Board as a body nor any Trustee, officer, or committee member shall be
personally liable to any Member in any respect for any action or lack of
action arising out of the execution of his office. Each Member shall be
bound by the good faith actions of the Board, officers and committee
members of the Association, in the execution of the duties and powers of
said Trustees, officers and committee members. Nothing contained herein
shall be construed so as to exculpate Members of the Board of Trustees
appointed
by
the
Declarant
from
discharging
their
fiduciary
responsibilities.
Article X.
10. Enforcement.
10.01. Enforcement. The Board shall have the power, at its
sole option, to enforce the terms of this instrument or any Rule or
Regulation promulgated pursuant hereto, by any or all of the following:
self-help; sending notice to the offending party to cause certain things
to be done or undone; restoring the Association to its or position and
charging the breaching party with the entire cost or any part thereof;
complaint to the duly constituted
-39-
authorities; or by taking any other action, summary or otherwise, before
any court, as may be provided by law.
10.02. Fines. The Board shall also have the power to levy
fines against any Member(s) for violation(s) of any Rule or Regulation of
the Association or for any covenants or restrictions contained in the
Declaration or By-Laws, except that no fine may be levied for more than
$25.00 for any one violation; provided, however, that for each day a
violation
continues
after
notice
it
shall
be
considered
a
separate
violation. Collection of the fines may be enforced against any Member(s)
involved as if the fine were a Common Expense owed by the particular
Member(s). Despite the foregoing, before any fine is imposed by the
Board, the Member(s) involved shall be given at least ten (10) days prior
written notice and afforded an opportunity to be heard, with or without
counsel, with respect to the violation(s) asserted.
10.03.
covenant
abrogated
Waiver.
contained
or
waived
in
by
No
these
restriction,
By-Laws
reason
of
shall
the
condition,
be
failure
deemed
to
obligation
to
enforce
or
have
been
the
same
irrespective of the number of violations or breaches thereof which may
occur.
Article XI.
11. Amendments.
11.01.
Amendments.
These
By-Laws,
or
any
of
them,
may
be
altered or repealed, or new By-Laws may be made, at any meeting of the
Association duly held for much purpose, and previous to which written
notice to Golf Members of the exact language of the
-40-
amendment or of the repeal shall have been sent, a quorum being present,
by an affirmative vote of fifty-one percent (51%) of the votes entitled
to be cast in person or by proxy, except that (i) the first annual
meeting may not be advanced, (ii) the first Board (including placements
in
case
of
vacancies)
may
not
be
enlarged
or
removed,
(iii)
the
obligation of the proportionate responsibility for the payment of Common
Expenses may not be changed by reason of any such new By-law, amendment
or repeal, or (iv) no such new Bylaw, amendment or repeal shall in any
way affect the Declarant, including any successor of the Declarant,
unless the Declarant, or its successor, has given its prior written
consent thereto.
11.02. Prohibition. Despite anything contained herein to the
contrary in any Article of these By-Laws:
a.
The obligation or the proportionate responsibility
for the payment of Common Expenses with respect to Homes of the Golf
Course may not be changed by reason of any such new By-Law, amendment or
repeal;
b.
way
affect
the
No such new By-Law, amendment or repeal shall in any
Declarant,
or
its
respective
successor,
unless
the
Declarant, or its respective successor, has given its prior written
consent thereto; and
c.
No amendment shall revoke or diminish the delegation
of any power or duty to the Board.
-41-
Article XII.
12. Conflict; Invalidity.
12.01.
Conflict.
Anything
to
the
contrary
herein
notwithstanding, if any provision of these By-Laws is in conflict with or
contradiction of the Declaration, the Certificate of Incorporation or
with
the
requirements
Declaration,
of
Certificate
any
of
law,
then
the
Incorporation
or
requirements
law
shall
of
be
said
deemed
controlling.
12.02. Invalidity. The invalidity of any part of these By-Laws
shall not impair or affect in any manner the enforceability or affect the
validity of the remaining provisions of the By-Laws.
Article XIII
13. Notice.
Any
notice
required
to
be
sent
to
any
Member
under
the
provisions of the Declaration or Certificate of Incorporation or these
By-Laws shall be deemed to have been properly sent and notice thereby
given, when mailed, by regular post with postage prepaid, addressed £o
the Member at the last known post office address of the person who
appeared as a member on the records of the Association at the time of
such mailing. Notice to one of two or more co-owners of a Membership
shall constitute notice to all Members. It shall be the obligation of
every Member to immediately notify the Secretary of the Association in
writing of any change of address. Valid notice may also be given to
Members by (i) personal delivery
-42-
to any occupant of said Member's Home over fourteen (14) years of age or
(ii) by affixing said notice to or sliding same under the front door of
such Home.
Article XIV.
14.
Arbitration.
Any
arbitration
provided
for
in
these
By-Laws
shall
be
conducted before one arbitrator in Middlesex County, New Jersey by the
American
Arbitration
Association,
in
accordance
with
its
rules
then
obtaining and the decision rendered in such arbitration shall be binding
upon the parties and may be entered in any court having jurisdiction. All
expenses of arbitration hereunder including the fees and expenses of
counsel and experts shall be Common Expenses.
Article XV
15. Corporate Seal.
The Association shall have a seal in circular form having
within its circumference the words "Greenbriar Golf Course Association,
Inc."
-43-
SCHEDULE "D"
Certificate of Incorporation
of
Greenbriar Golf Course Association, Inc.
276
OF
DATED: August 17, 1994
File and Return to:
P.O. Box 5600
Metro Corporate Campus I
ATTN: Wendell A. Smith, Esq.
277
OF
In compliance with the requirements of Title ISA, of the New Jersey
Statutes Annotated, the undersigned, who is of full age. has thi3 day
voluntarily agreed to act as the incorporator for the purpose of forming a
corporation not for profit, and does hereby certify:
ARTICLE I
Name
The name of the corporation is GREENBRIAR GOLF COURSE ASSOCIATION, INC., a
New Jersey nonprofit corporation, hereinafter called the "Association".
ARTICLE II
Principal Office
The principal office of the Association is located at 800 W. Main Street,
Freehold, New Jersey. 07728.
ARTICLE III
Registered Agent
Wendell A. Smith, Esq., whose address is Metro Corporate Campus I, P.O.
Box 5600, Woodbridge, New Jersey 07095 and whose location is 99 Wood Avenue
South, Iselin, New Jersey 08830, is hereby appointed the initial registered
agent of this Association.
ARTICLE IV
The Association does not contemplate pecuniary gain or profit to the
members thereof, and the specific purposes for which it is formed are to
provide for the maintenance, preservation and control of the golf course and
related improvements within that certain tract of land subjected to that
certain Declaration of Covenants and Restrictions for Greenbriar Golf Course,
and any supplements or amendments thereto, recorded or to be recorded in the
Office of the Clerk of Middlesex County, and to promote the health, safety and
welfare of the residents within the above described property and for these
additional purposes:
(a)
To exercise all of the powers and privileges and to perform
all of the duties and obligations of the Association as set
forth
In
said
Declaration
and
the
By-Laws
for
said
Association, said By-Laws being incorporated herein as if set
forth at length;
(b)
To fix, levy, collect and enforce payment by any lawful means,
of all charges or assessments pursuant to the terms of said
278
Declaration and by the By-laws of the Association; to pay all
expenses in connection therewith and all office and other
expenses incident to the conduct of the business of the
Association, including all licenses, taxes or governmental
charges levied or imposed against the property of the
Association;
(c)
To acquire (by gift, purchase, or otherwise), own, hold,
improve, build upon, operate, maintain, convey, sell, lease,
transfer, dedicate for public use of otherwise dispose of real
of personal property in connection with the affairs of the
Association;
(d)
To borrow money, to mortgage, pledge, deed in trust, or
hypothecate any or all of its real or personal property as
security for money borrowed or debts incurred; and
(e)
To have and to exercise any and all powers, rights and
privileges which a corporation organized under the Non-Profit
Corporation Law of the State of New Jersey by law may now or
hereafter have or exercise.
ARTICLE V
Membership
Every person or entity who is a record owner of a fee interest in Home
which is subject to the Declaration aforesaid is subject to assessment by the
Association, and qualified in accordance with the By-Laws, shall be a member of
the Association. The foregoing is not intended to include persons or entities
who hold an interest merely as security for the performance of an obligation.
Ownership of any such unit shall be the sole qualification for membership. Upon
termination of the interest of the unit owner, his membership shall
automatically terminate and shall be transferred and shall inure to the
successors in title to his Home.
ARTICLE VI
Board of Trustees
The affairs of this Association shall be managed by a Board of Trustees.
The initial Board of Trustees shall be composed of Three (3) persons who need
not be members of the Association. The number of Trustees may be changed
pursuant to the By-Laws of the Association. The names and addresses of the
persons who are to act in the capacity of Trustees until the selection of their
successors are:
Gregory A. Snyder
W. George Breen
-2-
Paul Rempe
The method of electing Trustees shall be set forth in the By-Laws of the
Association.
ARTICLE VII
Distribution of Assets
Upon dissolution, after the payment of debts, no part of the remaining
assets of the Association may be distributed to any member or to any trustee,
officer, employee or agent of the Association. Such assets shall instead be
distributed to an organization exempt under the provisions of Section 501(C)(3)
of the Internal Revenue Code, or to the United States, or to a state or local
government.
ARTICLE VIII
Duration
The corporation shall exist perpetually.
ARTICLE IX
Amendments
Amendment of this Certificate shall require the assent of seventy-five
percent (75%) of the Members of the Association.
IN WITNESS WHEREOF, for the purpose of forming this nonprofit corporation
under the laws of the State of New Jersey, the undersigned, the Incorporator of
this Association, has executed this Certificate of Incorporation this 17th day
of August, 1994.
STATE OF NEW JERSEY
COUNTY OF MONMOUTH
)
)SS.:
)
BE IT REMEMBERED, that on this 17TH
day of August, 1994, before me, the
subscriber, a Notary Public of the State of New Jersey, personally appeared
Donald R. Bompensa, who, I am satisfied is the person named in and who executed
the within Instrument, and thereupon acknowledges that he/she signed, sealed
and delivered the same as his/her voluntary act and deed, for the uses and
purposes therein expressed.
-3-
280

GREENBRIAR AT WHITTINGHAM

Transcription

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