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THIS
INSTRUMENT PREPARED BY COSTNER & GREENE, ATTYS.,
THIS DECLARATION, made on the date hereinafter set forth by PGK, LLC, hereinafter referred to as “Declarant.”
W I T N E S S E T
H:
WHEREAS, Declarant is the owner and developer of certain property in Blount County, Tennessee, which is more particularly described as Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 & 12 of COVINGTON PLACE as shown by map of the same of record in Map File _____________ in the Register’s Office for Blount County, Tennessee, and intends to erect thereon, a residential community known as Covington Place, together with other areas for the benefit of said community; and
WHEREAS, the Declarant desires to provide for the preservation of the values and amenities in said community and for the maintenance of the areas as described herein, and desires to subject the above described Lots to the covenants, restrictions, easements, charges and liens hereinafter set forth, each and all of which is and are for the benefit of said property and each owner thereof; and
NOW, THEREFORE, Declarant hereby declares that all of the Lots described above shall be held, sold and conveyed subject to the following easements, restrictions, covenants, and conditions, which are for the purpose of protecting the value and desirability of, and which shall run with, the real property and be binding on all parties having any right, title or interest in the described properties or any part thereof, their heirs, successors and assigns, and shall insure to the benefit of each owner thereof.
ARTICLE I
Section 1. "Association" shall
mean and refer to COVINGTON PLACE HOMEOWNERS ASSOCIATION, an association of the
owners of the Lots located and being in Covington Place, map for which is of
record in Map File _____________ in the Register's Office for Blount County,
Tennessee, and such other additional and future maps of Covington Place as may
be properly approved and recorded at the Register's Office for Blount County,
Tennessee.
Section 2. "Owner" shall mean and refer to the
record owner, whether one or more persons or entities, of a fee simple title to
any Lot which is a part of the Properties, including contract sellers, but
excluding those having such interest merely as security for the performance of
an obligation, provided however, that the purchaser at a foreclosure sale or
trustee's sale shall be deemed an owner.
Section 3. "Properties" shall mean and refer
to that certain real property hereinabove described, and such additions thereto
as may hereafter be brought within the jurisdiction of the Association.
Section 4.
"Lot" shall mean and refer to the tracts of land so designated
as Lots on the plat hereinabove referred to recorded in the Register's Office
for Blount County, Tennessee, and as hereinabove brought within the
jurisdiction of the Planned Unit Development, and
all future plats or maps of Covington Place to be approved and recorded at the
Register's Office for Blount County, Tennessee.
For all purposes hereunder, it shall be understood and agreed that
Declarant shall be the owner of all said Lots, save and except only those
particular Lots which Declarant conveys in fee simple by recordable deed from
and after date hereof.
Section 5. "Declarant" shall mean and refer to
PGK, LLC, its successors and assigns.
Section 6. "Member" shall mean and refer to
every person or entity who holds membership in the Association.
Section 7. "Common Area" shall mean all real
property (including the improvements thereto) for the common use and enjoyment
of the owners, as more particularly described, or as may be particularly
described on map of record in Map File _______________ in the Register's Office
for Blount County, Tennessee, and upon any future plats of Covington Place as
may be properly approved and recorded at the Register's Office for Blount
County, Tennessee. Any common areas are
to be used by the Association at the time of conveyance of the first
MEMBERSHIP AND VOTING RIGHTS
Section 1. Every Owner of a
Section 2. The Association shall have two classes of voting
membership:
Class A. Class A Members shall be all
Owners, with the exception of the Declarant, and shall be entitled to one vote
for each
Class B. The Class B Member(s) shall be
the Declarant and shall be entitled to three (3) votes for each
(a) when the total votes outstanding in the Class A membership equal the total votes outstanding in the Class B membership, or
(b) on January 1, 2016, provided however, that if the Declarant is unable to fully develop the property and sell all recorded Lots to owners by reason of ban, moratorium or restriction imposed by any government, governmental agency, or public utility, then this date shall be extended for a period equal to the period between the date on which such ban, moratorium or restriction commenced, and the date upon which such ban, moratorium or restriction terminates or is rescinded, but in no event shall such period be extended for more than five years. From and after the happening of these events, whichever occurs first, the Class B member(s) shall be deemed to be Class A member(s) entitled to one vote for each lot in which it holds the interest required for membership under Section 1.
ARTICLE III
The first Board of Directors of the Association shall consist of three (3) persons. All of the Board of Directors shall be members of the Association. So long as Developer retains control of seventy-five percent (75%) of the votes in the affairs of the Association, as set out in Article II, Section 2, the Developer shall have the right to designate and select the persons who shall serve as members of each Board of Directors of the Association. Thereafter Developer shall be entitled to vote for election of Directors in proportion to number of lots it owns as other lot owners are allowed under these covenants.
CONSENT FOR MAINTENANCE ASSESSMENTS
Section 1. Creation of the Lien and Personal Obligation
of Assessments. The Declarant, for
each Lot owned within the Properties, hereby covenants, and each Owner of any
Lot, by acceptance of a deed therefore, whether or not it shall be so expressed
in such deed, is deemed to covenant and agree to pay to the Association: (1) annual assessments or charges, and (2)
special assessments for capital improvements, such assessments to be
established and collected as hereinafter provided. The annual and special assessments, together
with interest, costs, and reasonable attorney's fees, shall be a charge on the
land and shall be a continuing lien upon the property against which each such
assessment is made. Each such
assessment, together with interest, costs, and reasonable attorney's fees,
shall also be the personal obligation of the person who was the Owner of such
property at the time when the assessment fell due. The personal obligation for the delinquent
assessments shall not pass to his successors in title unless expressly assumed
by them.
Section 2. Purpose of Assessments. The assessments levied by the Association
shall be used exclusively to promote the recreation, health, safety, and
welfare of the residents of the Properties, and particularly for
(a)
Maintenance, upkeep and improvement of the private road known as
Covington Lane, sidewalks, drainage easements and waterline easement as
described on plat of record in Map File ____________ in the Register's Office
for Blount County, Tennessee, and upon any future plats as to Covington Place
as may be approved and recorded at the Register's Office for Blount County,
Tennessee.
(b)
Exterior maintenance upon each
(c) Any paint
or repair or replacement and care of roofs, fencing, gutters, downspouts,
exterior building surfaces, trees, shrubs, flowers, and any other structures
which may exist or hereafter be constructed within the Common Areas shown on
the recorded plat or plats hereinabove referred to.
(d) Hazard
Insurance as more fully outlined in Paragraph V herein.
In the event that the need for
maintenance or repair of the improvements described in Section 2(a), (b) and
(c) above is caused through the willful or negligent acts of its owner, or
through the willful or negligence acts of the family, guests or invitees of the
owner of the Lot needing such maintenance or repair, the cost of such exterior
maintenance shall be added to and become part of the assessment to which such
Lot is subject.
Section 3.
Maximum Annual Assessment. No assessments shall be made until thirty
(30) days after the sale of the first
(a) From
and after January 1 of the year immediately following the conveyance of the
first
(b) From
and after January 1 of the year immediately following the conveyance of the
first Lot to an Owner, the maximum annual assessment may be increased above 5%
by a vote of three-fourths (3/4) of each class of members who are voting in
person or by proxy, at a meeting duly called for this purpose.
(c) The
Board of Directors of the Association may fix the annual assessment to an
amount not in excess of the maximum.
Section 4.
Special Assessments for Capital Improvements. In
addition to the annual assessment authorized above, the Association may levy,
in any assessment year, a special assessment applicable to that year only for
the purpose of defraying in whole or in part, the cost of any construction,
reconstruction, repair or replacement of a capital improvement, including
fixtures, and personal property related thereto, provided that any such
assessment shall have the assent of three-fourths (3/4) of the votes of each
class of members who are voting in person or by proxy at a meeting duly called
for this purpose.
Section 5. Notice and Quorum for Any Action Authorized
Under Sections 3 and 5. Written
notice of any meeting called for the purpose of taking any action authorized
under Sections 3 or 4 shall be sent to all members not less than 30 days nor
more than 60 days in advance of the meeting.
At the first such meeting called, the presence of members or of proxies
entitled to cast sixty percent (60%) of all the votes of each class of
membership shall constitute a quorum. If
the required quorum is not present, another meeting may be called subject to
the same notice requirement, and the required quorum at the subsequent meeting
shall be one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more
than 60 days following the preceding meeting.
Section 6. Uniform Rate of Assessment. Both annual and special assessments must be
fixed at a uniform rate for all lots and may be collected on a monthly basis.
Section 7.
Date of Commencement of Annual Assessments: Due Dates. The annual assessments provided
for herein shall commence as to all Lots on the first day of the month
following the conveyance of said lot.
The first annual assessment shall be adjusted according to the number of
months remaining in the calendar year.
The Board of Directors of the Association shall fix the amount of the
annual assessment against each lot at least thirty (30) days in advance of each
annual assessment period. Written notice
of the annual assessment shall be sent to every Owner subject thereto. The due dates shall be established by the
Board of Directors. The Association
shall, upon demand, and for a reasonable charge, furnish a certificate signed
by an officer of the Association setting forth whether the assessments on a
specified lot have been paid. A properly
executed certificate of the Association as to the status of assessments on a
lot is binding upon the Association as of the date of its issuance.
Section 8. Effect of Nonpayment of Assessments: Remedies of the Association. Any assessment not paid within thirty (30)
days after the due date shall bear interest from the due date at the rate of
six percent (6%) per annum. The
Association may bring an action at law against the Owner personally obligated
to pay the same, or foreclose the lien against the property. No Owner may waive or otherwise escape
liability for the assessments provided for herein by non-use or abandonment of
his
Section 9. Subordination of the Lien to Mortgages. The lien of the assessments provided for
herein shall be subordinate to the lien of any first mortgage.
ARTICLE V
INSURANCE
Insurance (other than title insurance) which shall be carried upon the common elements (if applicable) and upon each dwelling and shall be governed by the following provisions:
1. Authority to Purchase; Named
Insured: All insurance policies upon
the property shall be purchased by the Association, and the named insured shall
be the Association individually and as agent for the lot owners without naming
them and their mortgages. Provisions
shall be made for the issuance of the mortgage endorsements and memoranda of
insurance to the mortgagees of
2. Copies to Mortgagees: One copy of each insurance policy and of all endorsements thereon shall be furnished by the Association to each mortgagee included in the mortgagee roster. Such copies shall be furnished not less than ten (10) days prior to the beginning of the term of the policy or not less than ten (10) days prior to the expiration of each preceding policy which is being renewed or replaced, whichever date shall first occur.
3. Coverage:
(A) Casualty: All buildings and improvements upon the Land shall be insured in an amount equal to the maximum insurable replacement value, excluding foundation and excavation costs, all as determined annually by the Board of Directors of the Association. Such coverage shall afford protection against:
(1) Loss or Damage by Fire and other hazards covered by a standard extended coverage endorsement, and
(2) Such other Risks as from time to time shall be customarily covered with respect to buildings similar in construction, location and use as the buildings on the land including but not limited to vandalism and malicious mischief.
(B) Public Liability in such amounts and with such coverage as shall be required by the Board of Directors of the Association, including but not limited to hired automobiles and non-owned automobile coverages, and with cross-liability endorsements to cover liabilities of the lot owners as a group to a lot owner.
(C) Workmen's Compensation Policy to meet the requirements of law.
(D) Such Other Insurance as the Board of Directors of the Association shall determine from time to time to be desirable.
4. Premiums: Premiums upon insurance policies purchased by the Association shall be paid by the Association as a common expense.
5. Association; Shares of Proceeds: All insurance policies purchased by the Association shall be for the benefit of the Association and the lot owners and their mortgagees as their interests may appear, and shall provide that all proceeds covering property losses shall be paid to the Association subject to the provisions hereof. The Association shall receive such insurance proceeds as are paid and hold the same in trust for the purposes elsewhere stated herein and for the benefit of the lot owners and their mortgages as determined by the Association.
6. Association as Agent: The Association is hereby irrevocably appointed agent for each lot owner and for each owner of a mortgage or other lien upon a lot and for each owner of any other interest in the property to adjust all claims arising under insurance policies purchased by the Association, and to execute and deliver releases upon the payment of claims.
7. Waiver of Subrogation: All insurance purchased by the Association shall include a clause waiving any subrogation rights which the insurer might have against lot owners within the development.
8. Assessments: If the proceeds of insurance are not sufficient to defray the estimated costs of reconstruction and repair by the Association, or if at any time during reconstruction and repair, or upon completion of reconstruction and repair, the funds for the payment of the costs thereof are insufficient, assessments shall be made against the lot owners who own the damaged dwellings, and against all lot owners in the case of damage to common elements, in sufficient amounts to provide funds to pay the estimated costs. Such assessments against lot owners for damage to dwellings shall be in proportion to the cost of reconstruction and repair of their respective dwellings. Such assessments on account of damage to common elements shall be in proportion to the owner's share in the common elements.
9. Deductible Provision: The funds necessary to cover any deductible amount under an insurance policy against which a claim is made shall be a common expense.
ARCHITECTURAL CONTROL
Except for the original construction
upon the Lots situated within the property by the Declarant and any
improvements to any Lot, accomplished concurrently with said original
construction and except for the purposes of proper maintenance and repair or as
otherwise in this Declaration provided, it shall be prohibited to install,
erect, attach, apply, paste, hinge, screw, nail, build, alter, remove or
construct any lighting, shades, screens, awnings, patio covers, decorations,
fences, aerials, antennas, radio or television broadcasting or receiving
device, slabs, sidewalks, curbs, gutters, patios, porches, driveways, walls or
to make any change or otherwise alter (including any alteration of color) in
any manner whatsoever of any exterior within Covington Place residential
community until the complete plans and specifications showing the location,
nature, shape, height, material color, type of construction and/or any other
proposed form of change (including, without limitation, any other information
specified by the Board of Directors of the Association or its designated
committee) shall have been submitted to and approved in writing as to harmony
of external design, color and location in relation to surrounding structures
and topography by the Board of Directors of the Association, or by any
architectural control committee designed by it.
No tree over three inches in circumference shall be cut without the
permission of the Association.
In the event the Board or Directors
or its designated committee fails to approve or disapprove such design and
location within thirty (30) days after said plans and specifications have been
submitted to it, such approval shall be deemed automatically granted. Any restriction hereunder may be waived by
the Board of Directors in lieu of a committee.
PARTY WALLS
Section 1. Each
Section 2. The cost of reasonable repair and maintenance
of a party wall shall be shared by the owners who make use of the wall in
proportion to such use.
Section 3. If a party wall is destroyed or damaged by
fire or other casualty, any owner who has used the wall may restore it, and if
the other owners thereafter make use of the wall, they shall contribute to the
cost of restoration thereof in proportion to such use without prejudice;
however, to the right of any such owner to call for a larger contribution from
the others under any rule of law regarding liability from negligent or willful
acts or omissions.
Section 4. Notwithstanding any other provision of this
Article, an owner who by his negligent or willful act causes the party wall to
be exposed to the elements shall bear the whole cost of furnishing the
necessary protection against the elements.
Section 5. The right of any owner to contribution from
any other owner under this Article shall be appurtenant to the land and shall
pass to such owner's successors in title.
Section 6. In the event of any dispute arising
concerning a party wall, or under the provisions of this Article, each party
shall choose one arbitrator, and such arbitrator shall choose one additional
arbitrator, and the decision shall be by a majority of all the arbitrators.
RESTRICTIONS ON USE
Section 1. Residential Use. No Lot shall be used except for private
residential purposes except for such non-residential uses as may be permitted
by the zoning laws of the City of
Section 2. Leasing.
No
Section 3. Prohibited Use and Nuisances. In order to provide for a congenial
occupation of
(a) Said
property is hereby restricted to residential dwellings for residential
use. All buildings and structures
erected upon said property shall be of new construction, and no buildings or structures
shall be moved from other locations onto said property and no subsequent
buildings or structures, other than cluster dwellings, single-family townhouse.
(b) Each
(c) No
animals, livestock or poultry of any kind shall be raised, bred or kept on any
of said Lots except that dogs, cats or other household pets may be kept,
provided that they are not kept, bred or maintained for any commercial
purposes. It shall be the prerogative of
the Board of Directors to determine if the keeping of any animal is such to
create a nuisance. And in the event the
Board so finds, the owner shall remove said animal or animal.
(d) No
advertising signs (except one of not more than five square feet "for
rent" or "for sale" sign per parcel), billboards, unsightly
objects or nuisances shall be erected, placed or permitted to remain on said
property, nor shall said property be used in any way or for any purpose which
may endanger the health or unreasonably disturb the owner of any lot or any
resident thereof. No business activities
of any kind whatsoever shall be conducted in any building or in any portion of
said property; provided, however, the foregoing covenants shall not apply to
the business activities, signs, and billboard or the construction and
maintenance of buildings, if any, of Declarant, their agents and assigns,
during the construction and sale period of Covington Place.
(e) No
action shall at any time be taken by the Association or its Board of Directors
which in any manner would discriminate against any owner or owners in favor of
the other owners.
(f) None
of the above restrictions shall be applicable to the Declarant during
construction, or any phase thereof, of
(g) No
structure of temporary character, trailer, basement, tent, shack, garage, barn
or other outbuilding shall be used on any lot at any time as a residence either
temporarily or permanently.
Section
1. Duration and Amendment. The covenants and restrictions of this
Declaration shall run with and bind the land, and shall insure to the benefit
of and be enforceable by the Association, or the owner of representatives,
heirs, successors and assigns for a period of twenty (20) years from the date
this Declaration is recorded, unless otherwise expressly limited herein, after
which time said covenants shall be automatically extended for successive
periods of ten (10) years each unless an instrument signed by the then owners
of 90% of the lots has been recorded agreeing to change said covenants and
restrictions in whole or in part.
Provided, however, that no such agreement to change shall be effective
unless written notice of the proposed agreement is sent to every owner at least
90 days in advance of any action taken.
Unless specifically prohibited herein, Articles I through VII of this
Declaration may be amended by instrument signed by owners holding not less than
90% of the votes of the membership at any time.
Any amendment must be properly recorded to be effective. These
amendment provisions specifically exclude the amendment of any provision
dealing with the Homeowners Association and the maintenance of the private road
known as
The Declarant reserves the right for
a period of two years from the date hereto to unilaterally amend this
Declaration in whole or in part to conform this Declaration to the requirements
of any governmental agency, federal, state or local, and for the requirements
of any mortgage lender, however any such amendments by Declarant shall
not be more restrictive for Lots already conveyed and will not lessen
requirements that are in keeping with the overall plan or scheme of the
subdivision.
Section 2. Notices.
Any notice required to be sent to any member under the provisions of
this Declaration shall be deemed to have been properly sent when mailed,
postpaid, to the last known address of the person who appears as member on the
records of the Association at the time of such mailing.
Section 3. Enforcement. The Declarant, the Association, or any member
shall have the right to enforce these covenants and restrictions by any
proceeding at law or in equity, against any person or persons violating or
attempting to violate any covenant or restriction, to restrain violations, to
require specific performance and/or to recover damages; and against the land to
enforce any lien created by these covenants; and failure by the Association or
any member to enforce any covenant or restriction herein contained shall in no
event be deemed a waiver of the right to do so thereafter. The expense of enforcement by the Association
shall be chargeable to the owner of the
Section 4. Severability. Invalidation of any one of the covenants or
restrictions by judgment or court order shall in no way affect the validity of
any other provisions which shall remain in full force and effect.
Section 5. Waiver.
No restriction, condition, obligation or provision of this Declaration
shall be deemed to have been abrogated or waived by reason of any failure or
failures to enforce the same.
Section 6. Gender.
Whenever in this Declaration the context so required, the singular
number shall include the plural and the converse; and the use of any gender
shall be deemed to include all genders.
IN WITNESS WHEREOF, the undersigned,
being the Declarant herein, has hereunto executed this instrument on this the
______ day of ________________________, 2006.
PGK,
LLC
BY:
_______________________________
DAVID E. ALLEY, Chief Manager
STATE OF
Personally appeared before me, the
undersigned authority, a Notary Public in and for said County and State,
____________________________________, with whom I am personally
acquainted, (or proved to me on the basis of satisfactory evidence), and who
acknowledged that such person executed the within instrument for the purposes
therein contained, and who further acknowledged that such person is the
______________________________ of PGK, LLC, the maker or a
constituent of the maker and is authorized by the maker or by its constituent,
the constituent being authorized by the maker, to execute this instrument on
behalf of the maker.
Witness my hand and official seal at
office this ______ day of ____________________________, 2006.
______________________________
Notary
Public
My Commission
Expires: ____________