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SECOND AMENDED AND RESTATED
Declaration of Covenants,
Conditions, and Restrictions for
Oakhurst Community Association, Inc.
CONTENTS
THIS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS,
CONDITIONS, AND RESTRICTIONS is made this 23rd day of April, 2001, by the Board
of Directors of the Oakhurst Community Association, Inc.
The Amended and Restated Declaration of Covenants, Conditions
and Restrictions for Oakhurst Community Association was recorded on December 2,
1991, by LaSalle National Trust, N.A. as Trustee under Trust Agreement dated
December 10, 1969 and known as Trust No. 40299 (the “Declarant”); and
The Declarant has sold all of the Properties it owned that was
subjected to the Declaration; and
The administration of the Properties was transferred by the
Declarant to the Board of Directors elected by the Voting Members; and
The Board of Directors, with the approval of seventy-five
percent (75%) of the Voting Members at a meeting held on February 5, 2001, has
voted to amend the provisions of the Declaration in the form of the foregoing
Second Amended and Restated Declaration of Covenants, Conditions and
Restrictions.
NOW, THEREFORE, the Declaration of Covenants, Conditions and
Restrictions is hereby restated as follows:
Article I – Definitions
Section 1. “Area of Common Responsibility” shall mean
and refer to the Common Area, together with those areas, if any, which by the
terms of this Declaration or by contract or agreement with any Neighborhood
become the responsibility of the Association. The office of any property
manager employed by or contracting with the Association, if located on the
Properties, or any public rights-of-way within or adjacent to the Properties,
may be part of the Area of Common Responsibility. The Area of Common
Responsibility shall include such emergency access easement areas dedicated for
use of public agencies.
Section 2. “Articles of Incorporation” or
“Articles” shall mean and refer to the Articles of Incorporation of
Oakhurst Community Association, Inc., as filed with the Secretary of State of
the Illinois.
Section 3. “Association” shall mean and refer to
Oakhurst Community Association, Inc., an Illinois corporation, its successors
and assigns. The “Board of Directors” or “Board” shall be
the elected body having its normal meaning under Illinois corporate law. The
use of the term “association” or “associations” in lower
case shall refer to any condominium association or other owners association
having jurisdiction over any part of the Properties.
Section 4. “Base Assessment” shall mean and refer to
assessments levied against all Units in the Properties to fund Common
Expenses.
Section 5. “By-Laws” shall mean and refer to the
By-Laws of Oakhurst Community Association, Inc., attached hereto as Exhibit
“D” and incorporated herein by reference, as they may be amended from
time to time.
Section 6. “Common Area” shall mean an inclusive term
referring to all General Common Area and all Community Facilities as defined
herein.
Section 7. “Common Expenses” shall mean and include
the actual and estimated expenses incurred by the Association for the general
benefit of all Unit Owners, including any reasonable reserve, all as may be
found to be necessary and appropriate by the Board pursuant to this
Declaration, the By-Laws, and the Articles of Incorporation of the
Association.
Section 8. “Community-Wide Standard” shall mean the
standard of conduct, maintenance, or other activity generally prevailing
throughout the Properties. Such standard may be more specifically determined by
the Board of Directors and the Architectural Review Committee.
Section 9. “General Common Area” shall mean all real
and personal property which the Association now or hereafter owns or otherwise
holds for the common use and enjoyment of all Owners.
Section 10. “Master Land Use Plan” shall mean and
refer to the plan for the development of the property described on Exhibits
“A” and “B”, which is the final Plats and Plans approved by
the City of Aurora, Illinois, as it may be amended from time to time.
Section 11. “Member” shall mean and refer to a Person
entitled to membership in the Association, as provided herein.
Section 12. “Mortgage” shall mean and refer to a
mortgage, a deed of trust, a deed to secure debt, or any other form of security
deed.
Section 13. “Mortgagee” shall mean and refer to a
beneficiary or holder of a Mortgage.
Section 14. “Mortgagor” shall mean and refer to any
Person who gives a Mortgage.
Section 15. “Neighborhood” shall mean and refer to
each separately developed and denominated residential area comprised of one (1)
or more housing types subject to this Declaration, whether or not governed by
an additional owners association, in which owners may have common interests
other than those common to all Association Members, such as a common theme,
entry feature, development name, and/or common areas and facilities which are
not available for use by all Association Members. For example, and by way of
illustration and not limitation, each condominium, townhome development,
cluster home development, and single-family detached housing development shall
constitute a separate Neighborhood. In addition, each parcel of land intended
for development as any of the above shall constitute a Neighborhood, subject to
division into more than one (1) Neighborhood upon development. Where the
context permits or requires, the term Neighborhood shall also refer to the
Neighborhood Committee (established in accordance with the By-Laws) or
Neighborhood Association (as defined in Article III, Section 3) having
jurisdiction over the property within the Neighborhood. Neighborhoods may be
divided or combined in accordance with Article III, Section 3, of this
Declaration.
Section 16. “Neighborhood Assessments” shall mean
assessments levied against the Units in a particular Neighborhood or
Neighborhoods to fund Neighborhood Expenses.
Any Neighborhood Assessment shall be levied equally against all
Units in the Neighborhood benefiting from the services supported thereby,
provided that in the event of assessments for exterior maintenance of
structures, or insurance on structures, or replacement reserves which pertain
to particular structures, such assessments for the use and benefit of
particular Units shall be levied on a pro rata basis among the benefited
Units.
Section 17. “Neighborhood Expenses” shall mean and
include the costs and estimated expenses incurred by the Association for the
benefit of Owners of Units within a particular neighborhood, which may include
a reasonable reserve for capital repairs and replacements, all as may be
specifically authorized from time to time by the Board of Directors and as more
particularly authorized herein.
Section 18. “Oakhurst Community Facilities” shall mean
the recreational facilities located within the Properties and reserved for
Oakhurst residents as described in Article XVI of this Declaration.
Section 19. “Owner” shall mean and refer to one (1) or
more Persons who hold the record title to any Unit which is part of the
Properties, including Parcel Developers, but excluding in all cases any party
holding an interest merely as security for the performance of an obligation. If
a Unit is sold under a recorded contract of sale or memorandum thereof, and the
contract specifically so provides, then the purchaser (rather than the fee
owner) will be considered the Owner. If a Unit is subject to a written lease
with a term in excess of one (1) year and the lease specifically so provides,
then upon filing a copy of the lease with the Board of Directors the lessee
(rather than the fee owner) will be considered the Owner for the purposes of
exercising all membership privileges in the Association.
Section 20. “Parcel Developer” shall mean any Person
who takes title to any portion of the Properties for the purpose of development
and sale.
Section 21. “Person” means a natural person, a
corporation, a partnership, a trustee, or other legal entity.
Section 22. “Properties” shall mean and refer to the
real property described in Exhibit “A” attached hereto, together with
such additional property as is hereafter subjected to this Declaration by a
Supplemental Declaration.
Section 23. “Special Assessment” shall mean and refer
to assessments levied in accordance with Article X, Section 4 of this
Declaration.
Section 24. “Supplemental Declaration” shall mean an
amendment or supplement to this Declaration recorded in the Recorder’s
Office of DuPage County, Illinois, which subjects additional property to this
Declaration or imposes, expressly or by reference, additional restrictions and
obligations on the land described therein, or both.
Section 25. “Unit” shall mean a portion of the
Properties, whether developed or undeveloped, intended for development, use,
and occupancy as an attached or detached residence for a single family, and
shall, unless otherwise specified, include within its meaning (by way of
illustration, but not limitation) condominium units, townhouse units, cluster
homes, patio or zero lot line homes, and single-family detached houses on
separately platted lots, as well as vacant land intended for development as
such, all as may be developed, used, and defined as herein provided or as
provided in Supplemental Declarations covering all or a part of the Properties.
The term shall include all portions of the lot owned, including any structure
thereon. In the case of an apartment building or other structure which contains
multiple dwellings, each dwelling shall be deemed to be a separate Unit. A list
of Units is attached to this Declaration and incorporated herein as Exhibit
C.
In the case of a parcel of vacant land or land on which
improvements are under construction, the parcel shall be deemed to contain the
number of Units designated for such parcel on the Master Land Use Plan,
whichever is more recent, until such time as a certificate of occupancy is
issued on all or a portion thereof by the local government entity having
jurisdiction, after which the portion designated in the certificate of
occupancy shall constitute a separate Unit or Units as determined above and the
number of Units on the remaining land, if any, shall continue to be determined
in accordance with this paragraph.
Section 26. “Voting Group” shall mean one (1) or more
Voting Members who vote on a common slate for election of directors to the
Board of Directors of the Association, as more particularly described in
Article III, Section 3(b) of this Declaration or, if the context permits the
group of Members whose Units are represented by thereby.
Section 27. “Voting Member” shall mean and refer to
the representative selected by the Members of each Neighborhood to be
responsible for casting all votes attributable to Units in the Neighborhood for
election of directors, amending this Declaration or the By-Laws, and all other
matters provided for in this Declaration and in the By-Laws. The Voting Member
from each neighborhood shall be the senior elected officer (e.g., Neighborhood
Committee chairman or Neighborhood Association president) from that
Neighborhood; the alternate Voting Member shall be the next most senior
officer.
Article II – Property
Rights
Every Owner shall have a right and nonexclusive easement of use,
access and enjoyment in and to the Common Area, subject to any restrictions or
limitations contained in this Declaration as it may be amended from time to
time, including, but not limited to, Article XVI, and to any restrictions or
limitations contained in any deed conveying such property to the Association.
Any Owner may delegate his or her right of enjoyment to the members of his or
her family, tenants, and social invitees, as applicable, subject to reasonable
regulation by the Board and in accordance with procedures it may adopt. An
Owner who leases his or her Unit shall be deemed to have delegated all such
rights to the Unit’s lessee, unless otherwise specified in writing to the
Secretary of the Association.
Article III – Membership and
Voting Rights
Section 1. Membership. Every Owner, as defined in Article I,
shall be deemed to have a membership in the Association.
No Owner, whether one (1) or more Persons, shall have more than
one (1) membership per Unit owned. In the event the Owner of a Unit is more
than one (1) Person, votes and rights of use and enjoyment shall be as provided
herein. The rights and privileges of membership may be exercised by a Member or
the Member’s spouse, subject to the provisions of this Declaration and the
By-Laws. The membership rights of a Unit owned by a corporation, partnership,
or land trust shall be exercised by the individual designated from time to time
by the Owner in a written instrument provided to the Secretary, subject to the
provisions of this Declaration and the By-Laws.
Section 2. Voting. The Association shall have one (1) class of
membership. Members shall be entitled to one (1) equal vote for each Unit in
which they hold the interest required for membership under Section 1 hereof;
there shall be only one (1) vote per Unit. Unless otherwise specified in this
Declaration or the By-Laws, the vote for each Unit shall be exercised by the
Voting Member, as defined in Article I, representing the Neighborhood of which
the Unit is a part.
In any situation where a Member is entitled personally to
exercise the vote for his Unit and more than one (1) Person holds the interest
in such Unit required for membership, the vote for such Unit shall be exercised
as those persons determine among themselves and advise the Secretary of the
Association in writing prior to any meeting. In the absence of such advice, the
Unit’s vote shall be suspended if more than one (1) Person seeks to
exercise it.
Section 3. Neighborhoods and Voting Groups.
(a) Neighborhoods. Every Unit shall be located within a
Neighborhood as defined in Article I. The Units within a particular
Neighborhood may be subject to additional covenants and/or the Unit Owners may
all be members of another owners association (“Neighborhood
Association”) in addition to the Association, but no such Neighborhood
Association shall be required except in the case of a condominium. Any
Neighborhood which does not have a Neighborhood Association shall elect a
Neighborhood Committee, as described in Article V, Section 3, of the By-Laws,
to represent the interests of Owners of Units in such Neighborhood.
Each Neighborhood Association or Committee, upon the affirmative
vote, written consent, or a combination thereof, of a majority of Owners within
the Neighborhood, may request that the Association provide a higher level of
service or special services for the benefit of Units in such Neighborhood, the
cost of which shall be assessed against the benefited Units as a Neighborhood
Assessment pursuant to Article X.
The senior elected officer of each Neighborhood Association or
the Neighborhood Committee shall serve as the Voting Member for such
Neighborhood and shall cast all votes attributable to Units in the Neighborhood
on all Association matters requiring membership vote, unless otherwise
specified in this Declaration or the By-Laws. The Voting Member may cast all
such votes as it, in its discretion, deems appropriate. Notwithstanding the
above, each Voting Member shall cast only one (1) equal vote for election of
directors.
(b) Voting Groups. In order to guarantee representation on the
Board of Directors for various groups having dissimilar interests and to avoid
a situation in which the Voting Members representing similar Neighborhoods are
able, due to the number of Units in such Neighborhoods, to elect the entire
Board of Directors, excluding representation of others, Voting Groups have been
established by the Declarant for election of directors to the Board. At a
minimum there shall be one Voting Group for single-family detached housing and
one Voting Group for multi-family housing. All Units shall be assigned to
either the single-family detached housing Voting Group or the multi-family
housing Voting Group, as applicable. There shall be a maximum of five (5)
Voting Groups. Each Voting Group shall be entitled to elect the number of
directors specified in Article III, Section 2 of the By-Laws. Any other member
of the Board of Directors shall be elected at large by all Voting Members
without regard to Voting Groups.
Article IV – Maintenance
Section 1. Association’s Responsibility. The Association
shall maintain and keep in good repair the Area of Common Responsibility, such
maintenance to be funded as hereinafter provided. This maintenance shall
include, but need not be limited to, snow removal, as applicable, and
maintenance, repair, and replacement, subject to any insurance then in effect,
of all landscaping and other flora, structures, and improvements situated upon
the Common Areas, including all private streets within the Properties, and such
portions of any additional property included within the Area of Common
Responsibility as may be dictated by this Declaration, or by a contract or
agreement for maintenance thereof by the Association, or by that certain
Covenant to Share Costs recorded by Declarant in the Office of the Recorder of
Deeds of DuPage County, Illinois, on certain commercial properties adjacent to
the Properties.
Except as otherwise specifically provided herein, all costs
associated with maintenance, repair and replacement of General Common Areas
shall be a Common Expense to be allocated among all Units as part of the Base
Assessment. All costs associated with maintenance, repair and replacement of
Community Facilities shall be a Neighborhood Expense assessed as a Neighborhood
Assessment solely against the Units within the Neighborhood(s) to which the
Community Facilities are assigned, notwithstanding that the Association may be
responsible for performing such maintenance hereunder.
The Association may, in the discretion of its Board, assume the
maintenance responsibilities of a Neighborhood set out in this Declaration or
in any Supplemental Declaration or declaration subsequently recorded which
creates any Neighborhood Association upon all or any portion of the Properties.
In such event, all costs of such maintenance shall be assessed only against the
Units within the Neighborhood to which the services are provided. This
assumption of responsibility may take place either by contract or agreement or
because, in the opinion of the Board, the level and quality of service then
being provided is not consistent with the Community-Wide Standard of the
Properties. The provision of services in accordance with this Section shall not
constitute discrimination within a class.
The Association may maintain property which it does not own,
including, without limitation, property dedicated to the public, if the Board
of Directors determines that such maintenance is necessary or desirable to
maintain the Community-Wide Standard.
Section 2. Owner’s Responsibility. Each Owner shall
maintain his or her Unit, and all structures, parking areas, landscaped
easements within the Owner’s property line and other improvements
comprising the Unit, in a manner consistent with the Community-Wide Standard
and all applicable covenants, unless such maintenance responsibility is
otherwise assumed by or assigned to a Neighborhood Association or Neighborhood
Committee pursuant to any additional declaration of covenants applicable to
such Unit. If any Owner fails properly to perform his or her maintenance
responsibility, the Association may perform it and assess all costs incurred by
the Association against the Unit and the owner thereof in accordance with
Article X, Section 4 of this Declaration; provided, however, except when entry
is required due to an emergency situation, the Association shall afford the
owner reasonable notice and an opportunity to cure the problem prior to
entry.
Section 3. Neighborhood’s Responsibility. Upon resolution
of the Board of Directors, each Neighborhood shall be responsible for paying,
through Neighborhood Assessments, costs of maintenance of certain portions of
the Area of Common Responsibility within or adjacent to such Neighborhood,
which may include, without limitation, the costs of maintenance of any
right-of-way and greenspace between the Neighborhood and adjacent public roads,
including such portion as may be within the boundaries of a Unit, and private
streets within the Neighborhood, regardless of ownership and regardless of the
fact that such maintenance may be performed by the Association.
Any Neighborhood Association having responsibility for
maintenance of all or a portion of the property within a particular
Neighborhood pursuant to a declaration of covenants affecting the Neighborhood
shall perform such maintenance responsibility in a manner consistent with the
Community-Wide Standard. If any such Neighborhood Association fails to perform
its maintenance responsibility as required herein and in any additional
declaration, the Association may perform it and assess the costs against all
Units within such Neighborhood as provided in Article X, Section 4 of this
Declaration.
Article V – Insurance and
Casualty Losses
Section 1. Insurance. The Board of Directors, or its duly
authorized agent, shall have the authority to and shall obtain blanket all-risk
casualty insurance, if reasonably available, for all insurable improvements on
the Common Area. If blanket all-risk coverage is not reasonably available, then
at a minimum an insurance policy providing fire and extended coverage shall be
obtained. This insurance shall be in an amount sufficient to cover one hundred
(100%) of the replacement cost of any repair or reconstruction in the event of
damage or destruction from any insured hazard.
In addition to casualty insurance on the Common Area, the
Association may, upon request of a Neighborhood, but shall not under any
circumstances be obligated to, obtain and continue in effect adequate blanket
all-risk casualty insurance, if reasonably available, and if not reasonably
available, then at a minimum, fire and extended coverage, in such form as the
Board of Directors deems appropriate for one hundred (100%) percent of the
replacement cost of all structures located on Units within the Neighborhood
and/or common property of the Neighborhood Association, and charge the costs
thereof to the Owners of Units within the benefited Neighborhood as a
Neighborhood Assessment, as defined in Article I hereof.
Insurance obtained on the properties within any Neighborhood,
whether obtained by such Neighborhood or the Association, shall at a minimum
comply with the applicable provisions of this Section 1, including the
provisions of this Article applicable to policy provisions, loss adjustment,
and all other subjects to which this Article applies with regard to insurance
on the Common Area. All such insurance shall be for the full replacement cost.
All such policies shall provide for a certificate of insurance to be furnished
to each Member insured, to the Association, and to the Neighborhood
Association, if any.
The Board shall also obtain a public liability policy covering
the Common area, the Association and its Members for all damage or injury
caused by the negligence of the Association or any of its Members or agents.
The public liability policy shall have at least a One Million ($1,000,000.00)
Dollar single person limit as respects bodily injury and property damage, a
Three Million ($3,000,000.00) Dollar limit per occurrence, if reasonably
available, and a Five Hundred Thousand ($500,000.00) Dollar minimum property
damage limit.
Premiums for all insurance on the Common Area shall be Common
Expenses of the Association and shall be included in the Base Assessment, as
defined in Article I and as more particularly described in Article X, Section
1; provided, in the discretion of the Board of Directors, premiums for
insurance for a particular Neighborhood may be included in the Neighborhood
Assessment of the Neighborhood benefited thereby. The policy may contain a
reasonable deductible, and, in the case of casualty insurance, the amount
thereof shall be added to the face amount of the policy in determining whether
the insurance at least equals the full replacement cost. The deductible shall
be paid by the party who would be liable for the loss or repair in the absence
of insurance and in the event of multiple parties shall be allocated in
relation to the amount each party’s loss bears to the total.
All insurance coverage obtained by the Board of Directors shall
be written in the name of the Association as trustee for the respective
benefited parties, as further identified in (b) below. Such insurance shall be
governed by the provisions hereinafter set forth:
- All policies shall be written with a company licensed to do
business in Illinois which holds a Best’s rating of A or better and is
assigned a financial size category of XI or larger as established by A. M. Best
Company, Inc., if reasonably available, or, if not available, the most nearly
equivalent rating.
- All policies on the Common Area shall be for the benefit of
the Association and its Members; all policies secured at the request of a
Neighborhood shall be for the benefit of the Neighborhood Association, if any,
the Owners of Units within the Neighborhood and their Mortgagees, as their
interests may appear.
- Exclusive authority to adjust losses under policies obtained
by the Association on the Properties shall be vested in the Association’s
Board of Directors; provided, however, no Mortgagee having an interest in such
losses may be prohibited from participating in the settlement negotiations, if
any, related thereto.
- In no event shall the insurance coverage obtained and
maintained by the Association’s Board of Directors hereunder be brought
into contribution with insurance purchased by individual Owners, occupants, or
their Mortgagees.
- All casualty insurance policies shall have an inflation guard
endorsement, if reasonably available, and an agreed amount endorsement with an
annual review by one or more qualified persons, at least one of whom must be in
the real estate industry and familiar with construction in the DuPage County,
Illinois area.
- The Association’s Board of Directors shall be required
to make every reasonable effort to secure insurance policies that will provide
for the following:
- a waiver of subrogation by the insurer as to any claims
against the Association’s Board of Directors, its manager, the Owners, and
their respective tenants, servants, agents, and guests;
- a waiver by the insurer of its rights to repair and
reconstruct, instead of paying cash;
- a statement that no policy may be cancelled, invalidated,
suspended, or subject to nonrenewal on account of any one or more individual
Owners;
- a statement that no policy may be cancelled, invalidated,
suspended, or subject to nonrenewal on account of the conduct of any director,
officer, or employee of the Association or its duly authorized manager without
prior demand in writing delivered to the Association to cure the defect and the
allowance of a reasonable time thereafter within which the defect may be cured
by the Association, its manager, any Owner, or Mortgagee;
- that any “other insurance” clause in any policy
exclude individual Owners’ policies from consideration; and
- that the Association will be given at least thirty (30)
days’ prior written notice of any cancellation, substantial modification,
or non-renewal.
In addition to the other insurance required by this Section, the
Board shall obtain, as a common expense, worker’s compensation insurance,
if and to the extent required by law, directors’ and officers’
liability coverage, if reasonably available, a fidelity bond or bonds on
directors, officers, employees, and other Persons handling or responsible for
the Association’s funds, if reasonably available, and flood insurance, if
required. The amount of fidelity coverage shall be determined in the
directors’ best business judgment but, if reasonably available, may not be
less than three (3) months’ assessments on all Units, plus reserves on
hand. Bonds shall contain a waiver of all defenses based upon the exclusion of
persons serving without compensation and shall require at least thirty (30)
days’ prior written notice to the Association of any cancellation,
substantial modification, or non-renewal.
Section 2. Individual Insurance. By virtue of taking title to a
Unit subject to the terms of this Declaration; each Owner covenants and agrees
with all other Owners and with the Association that each Owner shall carry
blanket all-risk casualty insurance on the Unit(s) and structures constructed
thereon meeting the same requirements as set forth in Section 1 of this Article
V for insurance on the Common Area, unless the Neighborhood Committee or
Neighborhood Association for the Neighborhood in which the Unit is located or
the Association carries such insurance (which they are not obligated to do
hereunder). Each Owner further covenants and agrees that in the event of a
partial loss or damage resulting in less than total destruction of structures
comprising his Unit, the Owner shall proceed promptly to repair or to
reconstruct the damaged structure in a manner consistent with the original
construction or such other plans and specifications as are approved in
accordance with Article XI of this Declaration. The Owner shall pay any costs
of repair or reconstruction which is not covered by insurance proceeds. In the
event that the structure is totally destroyed, the Owner may decide not to
rebuild or to reconstruct, in which case the Owner shall clear the Unit of all
debris and return it to substantially the natural state in which it existed
prior to the beginning of construction and thereafter the Owner shall continue
to maintain the Unit in a neat and attractive condition consistent with the
Community-Wide Standard.
A Neighborhood Association may impose more stringent
requirements regarding the standards for rebuilding or reconstruction
structures on the Units subject to its jurisdiction and the standard for
returning the Units to their natural state in the event the structures are not
rebuilt or reconstructed.
Section 3. Damage and Destruction.
(a) Immediately after damage or destruction by fire or other
casualty to all or any part of the Properties covered by insurance written in
the name of the Association, the Board of Directors or its duly authorized
agent shall proceed with the filing, adjustment and negotiation of all claims
arising under such insurance and obtain reliable and detailed estimates of the
cost of repair or reconstruction of the damaged or destroyed Properties. Repair
or reconstruction, as used in this paragraph, means repairing or restoring the
Properties to substantially the same condition in which they existed prior to
the fire or other casualty, allowing for any changes or improvements
necessitated by changes in applicable building codes.
(b) Any damage or destruction to the Common Area or to the
common property of any Neighborhood Association shall be repaired or
reconstructed unless the Voting Members representing at least seventy-five
(75%) percent of the total vote of the Association, if Common Area, or the Unit
Owners representing at least seventy-five (75%) percent of the total vote of
the Neighborhood Association whose common property is damaged, if common
property of a Neighborhood Association, shall decide within sixty (60) days
after the casualty not to repair or reconstruct. If for any reason either the
amount of the insurance proceeds to be paid as a result of such damage or
destruction, or reliable and detailed estimates of the cost of repair or
reconstruction, or both, are not made available to the Association within said
period, then the period shall be extended until such information shall be made
available; provided, however, such extension shall not exceed sixty (60)
additional days. No Mortgagee shall have the right to participate in the
determination of whether the damage or destruction to Common Area or common
property of a Neighborhood Association shall be repaired or reconstructed.
(c) In the event that it should be determined in the manner
described above that the damage or destruction to the Common Area or to the
common property of any neighborhood Association shall not be repaired or
reconstructed and no alternative improvements are authorized, then and in that
event the affected portion of the Properties shall be restored to their natural
state and maintained by the Association, or the Neighborhood Association, as
applicable, in a neat and attractive condition consistent with the
Community-Wide Standard.
Section 4. Disbursement of Proceeds. If the damage or
destruction for which the proceeds of insurance policies are paid is to be
repaired or reconstructed, the proceeds, or such portion thereof as may be
required for such purpose, shall be disbursed in payment of such repairs or
reconstruction as hereinafter provided. Any proceeds remaining after defraying
such costs of repair or reconstruction to the Common Area shall be retained by
and for the benefit of the Association and placed in a capital improvements
account. In the event no repair or reconstruction is made, any proceeds
remaining after making such settlement as is necessary and appropriate with the
affected Owner or Owners and their Mortgagee(s) as their interests may appear,
shall be retained by and for the benefit of the Association and placed in a
capital improvements account. This is a covenant for the benefit of any
Mortgagee of a Unit and may be enforced by such Mortgagee.
Section 5. Repair and Reconstruction. If the damage or
destruction to the Common Area or to the common property of a Neighborhood
Association for which insurance proceeds are paid is to be repaired or
reconstructed, and such proceeds are not sufficient to defray the cost thereof,
the Board of Directors shall, without the necessity of a vote of the Voting
Members, levy a special assessment against all Owners on the same basis as
provided for Base Assessments, provided, if the damage or destruction involves
the common property of a Neighborhood Association, only the Owners of Units in
the affected Neighborhood Association shall be subject to assessment therefor.
Additional assessments may be made in like manner at any time during or
following the completion of any repair or reconstruction.
Article VI – No
Partition
Except as is permitted in the Declaration or amendments thereto,
there shall be no physical partition of the Common Area or any part thereof,
nor shall any Person acquiring any interest in the Properties or any part
thereof seek any judicial partition unless the Properties have been removed
from the provisions of this Declaration. This Article shall not be construed to
prohibit the Board of Directors from acquiring and disposing of tangible
personal property nor from acquiring title to real property which may or may
not be subject to this Declaration.
Article VII –
Condemnation
Whenever all or any part of the Common Area shall be taken (or
conveyed in lieu of and under threat of condemnation by the Board acting on the
written direction of Voting Members representing at least two-thirds (2/3) of
the total Association vote) by any authority having the power of condemnation
or eminent domain, each Owner shall be entitled to notice thereof. The award
made for such taking shall be payable to the Association as trustee for all
Owners to be disbursed as follows:
If the taking involves a portion of the Common Area on which
improvements have been constructed, then, unless within sixty (60) days after
such taking Voting Members representing at least seventy-five (75%) percent of
the total vote of the Association shall otherwise agree, the Association shall
restore or replace such improvements so taken on the remaining land included in
the Common Area to the extent lands are available therefor, in accordance with
plans approved by the Board of Directors of the Association. If such
improvements are to be repaired or restored, the above provisions in Article V
hereof regarding the disbursement of funds in respect to casualty damage or
destruction which is to be repaired shall apply. If the taking does not involve
any improvements on the Common Area, or if there is a decision made not to
repair or restore, or if there are net funds remaining after any such
restoration or replacement is completed, then such award or net funds shall be
disbursed to the Association and used for such purposes as the Board of
Directors of the Association shall determine.
Article VIII – Annexation of
Additional Property
Section 1. Annexation With Approval of Voting Members. Subject
to the consent of the owner thereof, the Association may annex any property
described on Exhibit “B”, to the provisions of this Declaration and
the jurisdiction of the Association. Such annexation shall require the
affirmative vote of Voting Members or alternates representing a majority of the
votes of the Association present at a meeting duly called for such purpose.
Annexation shall be accomplished by filing of record in the
Office of the Recorder of Deeds of DuPage County, Illinois, a Supplemental
Declaration describing the property being annexed. Any such Supplemental
Declaration shall be signed by the President and the Secretary of the
Association, and by the owner of the property being annexed, and any such
annexation shall be effective upon filing unless otherwise provided therein.
The relevant provisions of the By-Laws dealing with regular or special
meetings, as the case may be, shall apply to determine the time required for
and the proper form of notice of any meeting called for the purpose of
considering annexation of property pursuant to this Section 2 and to ascertain
the presence of a quorum at such meeting.
Article IX – Rights and
Obligations of the Association
Section 1 – Common Area
The Association, subject to the rights of the owners set forth
in this Declaration, shall be responsible for the exclusive management and
control of the common area and all improvements thereon (including, without
limitation, furnishings and equipment related thereto and common landscaped
areas), and shall keep it in good, clean, attractive, and sanitary condition,
order, and repair, pursuant to the terms and conditions hereof and consistent
with the community-wide standard.
Section 2 – Personal Property and Real Property for Common
Use
The Association, through action of its Board of Directors, may
acquire, hold, and dispose of tangible and intangible personal property and
real property. The Board, acting on behalf of the Association, shall accept any
real or personal property, leasehold, or other property interests within the
properties conveyed to it by the Declarant.
Section 3 – Rules and Regulations
The Association, through its Board of Directors, may make and
enforce reasonable rules and regulations governing the use of the properties,
which rules and regulations shall be consistent with the rights and duties
established by this Declaration. Sanctions may include reasonable monetary
fines and suspension of the right to vote and the right to use any recreational
facilities on the common area. The Board shall, in addition, have the power to
seek relief in any court for violations or to abate nuisances. Imposition of
sanctions shall be provided in the by-laws of the Association.
The Association, through the Board, by contract or other
agreement, shall have the right to enforce county ordinances or permit DuPage
County and the City of Aurora to enforce ordinances on the properties for the
benefit of the Association and its members.
Section 4 – Implied Rights
The Association may exercise any other right or privilege given
to it expressly by this Declaration or the by-laws, and every other right or
privilege reasonably to be implied from the existence of any right or privilege
given to it herein or reasonably necessary to effectuate any such right or
privilege.
Section 5 – Governmental Interests
The Association shall permit the Declarant reasonable authority
to designate sites within the properties for fire, police, water, and sewer
facilities.
Article X – Assessments
Section 1. Creation of Assessments. There are hereby created
assessments for Association expenses as may from time to time specifically be
authorized by the Board of Directors to be commenced at the time and in the
manner set forth in Section 7 of this Article. There shall be three (3) types
of assessments: (a) Base Assessments to fund Common Expenses for the benefit of
all Members of the Association; (b) Neighborhood Assessments for Neighborhood
Expenses benefiting only Units within a particular Neighborhood; and (c)
Special Assessments as described in Section 4 below.
Base Assessments shall be levied equally on all Units, provided
however, for the purposes of assessments, Units which constitute rental
apartments shall be assessed at the rate of one Base Assessment for each five
(5) apartments or fraction thereof. Neighbor-hood Assessments shall be levied
equally on all Units within the Neighborhood for whose benefit Neighborhood
Expenses are incurred as provided in Section 3 below. Special Assessments shall
be levied as provided in Section 4 below. Each Owner, by acceptance of a deed
or recorded contract of sale to any portion of the Properties, is deemed to
covenant and agree to pay these assessments.
All assessments, together with interest at a rate not to exceed
the highest rate allowed by Illinois law as computed from the date the
delinquency first occurs, costs, and reasonable attorneys’ fees, shall be
a lien on the land and shall be a continuing lien upon the Unit against which
each assessment is made until paid. Each such assessment, together with
interest, costs, and reasonable attorneys’ fees, shall also be the
personal obligation of the Owner of such Unit, and if title to such Unit is
held in trust, then each beneficiary thereof shall also be jointly and
severally liable therefor. Upon the sale of a Unit, the Seller shall be
responsible for all assessments due and payable at the time of conveyance,
except no first Mortgagee who obtains title to a Unit pursuant to the remedies
provided in the Mortgage shall be liable for unpaid assessments which accrued
prior to such acquisition of title.
The Association shall, upon demand at any time, furnish to any
Owner liable for any type of assessment a certificate in writing signed by an
officer of the Association setting forth whether such assessment has been paid
as to any particular Unit. Such certificate shall be conclusive evidence of
payment to the Association of such assessment therein stated to have been paid.
The Association may require the advance payment of a processing fee not to
exceed Fifty ($50.00) Dollars for the issuance of such certificate.
Assessments shall be paid in such manner and on such date as may
be fixed by the Board of Directors. Each Owner, by acceptance of a deed to his
or her Unit, acknowledges that all Base Assessments and Neighborhood
Assessments levied hereunder are annual assessments due and payable in advance
on the first day of the fiscal year; provided, the Board may permit any
assessment to be paid in installments. If any Owner is delinquent in paying any
assessment or other charges levied on his Unit, the Board may revoke the
privilege of paying in installments and require all annual assessments to be
paid in full immediately. Unless the Board otherwise provides, the Base
Assessment and any Neighborhood Assessment may be paid in monthly
installments.
No Owner may waive or otherwise exempt himself from liability
for the assessments provided for herein, including, by way of illustration and
not limitation, by non-use of Common Areas or abandonment of the Unit. The
obligation to pay assessments is a separate and independent covenant on the
part of the each Owner. No diminution or abatement of assessment or set-off
shall be claimed or allowed by reason of any alleged failure of the Association
or Board to take some action or perform some function required to be taken or
performed by the Association or Board under this Declaration or the By-Laws, or
for inconvenience or discomfort rising from the making of repairs or
improvements which are the responsibility of the Association, or from any
action taken to comply with any law, ordinance, or with any order or directive
of any municipal or other governmental authority.
Section 2. Computation of Base Assessment. It shall be the duty
of the Board, at least sixty (60) days before the beginning of each fiscal
year, to prepare a budget covering the estimated Common Expenses of the
Association during the coming year. The budget shall reflect and include such
amounts as are properly charged to and to be received from the owners of that
commercial property which is subject to that certain Covenant to Share Costs
recorded in the Recorder of Deeds of DuPage County, Illinois. The budget shall
include a capital contribution establishing a reserve fund in accordance with a
capital budget separately prepared.
The Base Assessment to be levied for the coming year against
each Unit subject to assessment under Section 7 below shall be computed by
dividing the budgeted Common Expenses by the total number of Units submitted to
this Declaration. The Board shall cause a copy of the Common Expense budget and
notice of the amount of Base Assessment to be levied against each Unit for the
following year to be delivered to each Owner at least thirty (30) days prior to
the beginning of the fiscal year. Such budget and assessment shall become
effective unless disapproved at a meeting of the Voting Members by the vote of
Voting Members or their alternates representing at least a majority of the
total vote in the Association. There shall be no obligation to call a meeting
for the purpose of considering the budget except on petition of the Voting
Members as provided for special meetings in Article II, Section 4, of the
By-Laws.
Notwithstanding the foregoing, however, in the event the
proposed budget is disapproved or the Board fails for any reason so to
determine the budget for any year, then and until such time as a budget shall
have been determined as provided herein, the budget in effect for the
immediately preceding year shall continue for the current year.
Section 3. Computation of Neighborhood Assessments. It shall be
the duty of the Board, at least sixty (60) days before the beginning of each
fiscal year, to prepare a separate budget covering the estimated Neighborhood
Expenses to be incurred by the Association for each Neighborhood on whose
behalf Neighborhood Expenses are expected to be incurred during the coming
year, and for the Community Facilities described in Article XVI hereof. The
Board shall be entitled to set such budget only to the extent that this
Declaration or the By-Laws specifically authorizes the Board to assess certain
costs as a Neighborhood Assessment. The Neighborhood Association or Committee
for each Neighborhood may request that additional services or a higher level of
services be provided by the Association, and in such case, any additional costs
shall be added to such budget. Such budget may include a capital contribution
establishing a reserve fund for repair and replacement of capital items within
the Neighborhood, as appropriate. Neighborhood Expenses shall be allocated
equally among all Units benefited thereby and shall be levied as a Neighborhood
Assessment. The Board shall cause a copy of such budget and notice of the
amount of the Neighborhood Assessment to be levied on each Unit for the coming
year to be delivered to each Owner of a benefited Unit at least thirty (30)
days prior to the beginning of the fiscal year. Such budget and assessment
shall become effective unless disapproved by a majority of the Owners of Units
to which the Neighborhood Assessment applies; provided, there shall be no
obligation to call a meeting for the purpose of considering the budget except
on petition of Owners of at least ten (10%) percent of the Units in such
Neighborhood and provided further, such right of disapproval shall apply on to
the amounts budgeted for special services requested by the Neighborhood.
In the event the proposed budget for any Neighborhood is
disapproved or the Board fails for any reason so to determine the budget for
any year, then and until such time as a budget shall have been determined as
provided herein, the budget in effect for the immediately preceding year shall
continue for the current year.
Section 4. Special Assessments. In addition to the assessments
authorized in Section 1 of this Article, the Association may levy a Special
Assessment or Special Assessments from time to time; provided, such assessment
shall have the affirmative vote or written consent of Voting Members or their
alternates representing at least fifty-one (51%) percent of the vote in the
Association. Special Assessments shall be payable in such manner and at such
times as determined by the Board, and may be payable in installments extending
beyond the fiscal year in which the Special Assessment is approved, if the
Board so determines.
The Association may also levy a Special Assessment against any
Member to reimburse the Association for costs incurred in bringing a Member and
his Unit into compliance with the provisions of the Declaration, any amendments
thereto, the Articles, the By-Laws, and the Association rules, which Special
Assessment may be levied upon the vote of the Board after notice to the Member
and an opportunity for a hearing. The Association may also levy a Special
Assessment against the Units in any Neighborhood to reimburse the Association
for costs incurred in bringing the Neighborhood into compliance with the
provisions of the Declaration, any amendments thereto, the Articles, the
By-Laws, and the Association rules and regulations, which Special Assessment
may be levied upon the vote of the Board after notice to the senior officer of
the Neighborhood Association or Neighborhood Committee and an opportunity for a
hearing.
Section 5. Lien for Assessments. Upon recording of a notice of
lien on any Unit, there shall exist a perfected lien for unpaid assessments
prior and superior to all other liens, except (1) all taxes, bonds,
assessments, and other levies which by law would be superior thereto, and (2)
the lien or charge of any first Mortgage of record (meaning any recorded
Mortgage with first priority over other Mortgages) made in good faith and for
value. Such lien may be enforced by suit, judgment, and foreclosure.
The Association, acting on behalf of the Owners, shall have the
power to bid for the Unit at foreclosure sale and to acquire and hold, lease,
mortgage, and convey the same. During the period in which a Unit is owned by
the Association following foreclosure: (a) No right to vote shall be exercised
on its behalf; (b) no assessment shall be assessed or levied on it; and (c)
each other Unit shall be charged, in addition to its usual assessment, its
equal pro rata share of the assessment that would have been charged such Unit
had it not been acquired by the Association as a result of foreclosure. Suit to
recover a money judgment for unpaid Common Expenses and attorney’s fees
shall be maintainable without foreclosing or waiving the lien securing the
same.
Section 6. Capital Budget and Contribution. The Board of
Directors shall annually prepare a capital budget to take into account the
number and nature of replaceable assets, the expected life of each asset, and
the expected repair or replacement cost. The Board shall set the required
capital contribution, if any, in an amount sufficient to permit meeting the
projected capital needs of the Association, as shown on the capital budget,
with respect both to amount and timing by annual assessments over the period of
the budget. The capital contribution required, if any, shall be fixed by the
Board and included within and distributed with the budget and assessment, as
provided in Section 2 of this Article.
Section 7. Date of Commencement of Assessments. The assessments
provided for herein shall commence as to each Unit on the first day of the
month following transfer of title to the Unit. Assessments shall be due and
payable in a manner and on a schedule as the Board of Directors may provide.
The first annual Base Assessment shall be adjusted according to the number of
days remaining in the fiscal year at the time assessments commence on the
Unit.
Section 8. Subordination of the Lien to First Mortgages. The
lien of assessments, including interest, late charges (subject to the
limitations of Illinois law), and costs (including attorney’s fees)
provided for herein, shall be subordinate to the lien of any first Mortgage
upon any Unit. The sale or transfer of any Unit shall not affect the assessment
lien; provided, however, the sale or transfer of any Unit pursuant to judicial
or nonjudicial foreclosure of a first Mortgage shall extinguish the lien of
such assessments as to payments which became due prior to such sale or
transfer. No sale or transfer shall relieve such Unit from lien rights for any
assessments thereafter becoming due. Where the Mortgagee holding a first
Mortgage of record or other purchaser of a Unit obtains title pursuant to
remedies under the Mortgage, its successors and assigns shall not be liable for
the share of the Common Expenses or assessments by the Association chargeable
to such Unit which became due prior to the acquisition of title to such Unit by
such acquirer. Such unpaid share of Common Expenses or assessments shall be
deemed to be Common Expenses collectible from Owners of all the Units,
including such acquirer, its successors and assigns.
Section 9. Capitalization of Association. Upon acquisition of
record title to a Unit by the first purchaser thereof other than the Declarant
or an owner who purchases solely for the purpose of constructing a dwelling
thereon for resale, a contribution shall be made by or on behalf of the
purchaser to the working capital of the Association in an amount equal to
one-sixty (1/6) of the amount of the annual Base Assessment per Unit for that
year as determined by the Board. Such contribution shall not be considered
advance payment of assessment and shall be in addition to, not in lieu of,
assessments then or thereafter coming due. This amount shall be deposited into
the purchase and sales escrow and disbursed therefrom to the Association for
use in covering operating expenses and other expenses incurred by the
Association pursuant to the terms of this Declaration and the By-Laws.
Section 10. Exempt Property. Notwithstanding anything to the
contrary herein, the following property shall be exempt from payment of Base
Assessments, Neighborhood Assessments, and Special Assessments:
- (a) all Common Area; and
- (b) all property dedicated to and accepted by any
governmental authority or public utility, including, without limitation, public
schools, public streets, and public parks, if any.
Article XI – Architectural
Standards
The Board of Directors shall have the authority and standing, on
behalf of the Association, to enforce in courts of competent jurisdiction the
decisions of the Architectural Review Committee established in Section 1 of
this Article XI.
No construction, which term shall include within its definition
staking, clearing, excavation, grading, and other site work, no exterior
alteration or modification of existing improvements, and no plantings or
removal of plants, trees, or shrubs shall take place except in strict
compliance with this Article, until the requirements below have been fully met,
and until the approval of the appropriate committee has been obtained.
All structures constructed on any portion of the Properties
shall be designed by and built in accordance with the plans and specifications
of a licensed architect.
Section 1. Architectural Review Committee. The Architectural
Review Committee (ARC) shall have exclusive jurisdiction over all original
construction, as well as modifications, additions or alterations made on or to
existing Units or structures containing Units on any portion of the Properties.
The ARC shall prepare and, on behalf of the Board of Directors, shall
promulgate design and development guidelines and application and review
procedures, herein referred to as the Architectural Guidelines. Copies shall be
available from the Architectural Review Committee for review. The Architectural
Guidelines shall be those of the Association, and the ARC shall have sole and
full authority to prepare and to amend them. It shall make the Architectural
Guidelines available to Owners who seek to engage in construction upon all or
any portion of the Properties and such Owners shall conduct their operations
strictly in accordance therewith.
The ARC shall consist of at least three (3), but no more than
five (5) persons. The Board of Directors shall appoint the members of the
ARC.
The ARC shall also have exclusive jurisdiction over
modifications, additions, or alterations made on or to existing Units or
structures containing Units and the open space, if any, appurtenant thereto;
provided, however. The ARC may also delegate authority to the appropriate board
or committee of any Neighborhood Association subsequently created or
subsequently subjected to this Declaration so long as the ARC has determined
that such board or committee has in force review and enforcement practices,
procedures, and appropriate standards at least equal to those of the ARC. Such
delegation may be revoked and jurisdiction reassumed at any time by written
notice.
The ARC shall promulgate detailed standards and procedures
governing its areas of responsibility and practice, consistent with the
Architectural Guidelines. In addition thereto, the following shall apply. Plans
and specifications showing the nature, kind, shape, color, size, materials, and
location of such modifications, additions, or alterations, shall be submitted
to ARC for approval as to quality of workmanship and design and as to harmony
of external design with existing structures, location in relation to
surrounding structures, topography, and finish grade elevation. No permission
or approval shall be required to repaint in accordance with an originally
approved color scheme, or to rebuild in accordance with originally approved
plans and specifications. Nothing contained herein shall be construed to limit
the right of an Owner to remodel the interior of his Unit, or to paint the
interior of his Unit any color designed. In the event that the ARC fails to
approve or to disapprove such plans or to request additional information
reasonably required within forty-five (45) days after submission, the plans
shall be deemed approved.
Section 2. No Waiver of Future Approvals. The approval of the
ARC of any proposals or plans and specifications or drawings for any work done
or proposed, or in connection with any other matter requiring the approval and
consent of such Committee, shall not be deemed to constitute a waiver of any
right to withhold approval or consent as to any similar proposals, plans and
specifications, drawings, or matters whatever subsequently or additionally
submitted for approval or consent.
Section 3. Variance. The ARC may authorize variances from
compliance with any of the provisions of the Architectural Design Guidelines
when circumstances such as topography, natural obstructions, hardship, or
aesthetic or environmental considerations require, but only in accordance with
duly adopted rules and regulations. Such variances may only be granted,
however, when unique circumstances dictate and no variance shall (a) be
effective unless in writing, (b) be contrary to the restrictions set forth in
the body of this Declaration, or (c) estop the Committee from denying a
variance in other circumstances. For purposes of this Section, the inability to
obtain approval of any governmental agency, the issuance of any permit or the
terms of any financing shall not be considered a hardship warranting a
variance.
Section 4. Appeal to Board of Directors. Upon written request
from the Owner, the Board of Directors, in its discretion, may review a
decision of the ARC. The Board may uphold, reverse or modify the decision of
the ARC.
Article XII – Use
Restrictions
The Properties shall be used only for residential, recreational,
and related purposes which may include, without limitation, offices for any
property manager retained by the Association or business offices for the
Association as may more particularly be set forth in this Declaration,
amendments hereto or subsequently recorded declarations creating Neighborhood
Associations subject to this Declaration. The declaration or other creating
document for any Neighborhood Association may impose stricter standards than
those contained in this Article. The Association, acting through its Board of
Directors, shall have standing and the Power to enforce such standards.
The Association, acting through its Board of Directors, shall
have authority to make and to enforce standards and restrictions governing the
use of the Properties, in addition to those contained herein, and to impose
reasonable user fees for use of Common Areas facilities. Such regulations and
use restrictions shall be binding upon all Owners and occupants until and
unless overruled, cancelled or modified in a regular or special meeting of the
Association by the vote of Voting Members representing a majority of the votes
in the Association.
Section 1. Signs. No sign of any kind shall
be erected within the Properties without the written consent of the Board of
Directors. The Board of Directors shall have the right to erect signs as they,
in their discretion, deem appropriate. Notwithstanding the above, no signs,
flags, banners or similar items advertising or providing directional
information with respect to activities being conducted outside the Properties
shall be permitted within the Properties.
Section 2. Parking and Garages. Vehicles shall be parked only in
the garages or in the driveways, if any, serving the Units or in appropriate
spaces or designated areas in which parking may or may not be assigned and then
subject to such reasonable rules and regulations as the Board of Directors, or
the Neighborhood Committee or Neighborhood Association having concurrent
jurisdiction over parking areas within a Neighborhood may adopt. In the event
there are areas with private streets, the Association may designate certain
on-street parking areas for visitors or guests subject to reasonable rules.
Commercial vehicles, tractors, mobile homes, recreational vehicles, trailers
(either with or without wheels), campers, camper trailers, boats and other
watercraft, and boat trailers shall be parked only in areas designated by the
Board, or the Neighborhood Committee or Neighborhood Association having
jurisdiction over a particular parking area within a neighborhood.
Section 3. Occupants Bound. All provisions of the Declaration,
By-Laws and of any rules and regulations or use restrictions promulgated
pursuant thereto which govern the conduct of Owners and which provide for
sanctions against Owners shall also apply to all occupants, guests and invitees
of any Unit. Every Owner shall cause all occupants of his or her Unit to comply
with the Declaration, By-Laws, and the rules and regulations adopted pursuant
thereto, and shall be responsible for all violations thereof and any losses or
damage to the Common Areas caused by such occupants, notwithstanding the fact
that such occupants of a Unit are fully liable and may be sanctioned for any
violation of the Declaration, By-Laws, and rules and regulations adopted
pursuant thereto. Nothing herein shall be construed to impose any criminal
liability on any Owner for actions of third parties.
Section 4. Animals and Pets. No animals, livestock, or poultry
of any kind shall be raised, bred, or kept on any portion of the Properties,
except that dogs, cats, or other usual and common household pets not to exceed
the number allowed by City Ordinance may be permitted in a Unit. Residents with
pets must comply with all local ordinances or regulations of the City of
Aurora, Illinois. This Declaration incorporates local regulation by reference
and the Board may enforce such regulations by a fine against the Owner.
However, those pets which are permitted to roam free, or, in the sole
discretion of the Association, endanger the health, make objectionable noise,
or constitute a nuisance or inconvenience to the Owners of other Units or the
owner of any portion of the Properties shall be removed upon request of the
Board; if the owner fails to honor such request, the pet may be removed by the
Board. No pets shall be kept, bred, or maintained for any commercial
purpose.
Section 5. Nuisance. No portion of the
Properties shall be used, in whole or in part, for the storage of any property
or thing that will cause it to appear to be in an unclean or untidy condition
or that will be obnoxious to the eye; nor shall any substance, thing, or
material be kept upon any portion of the Properties that will emit foul or
obnoxious odors or that will cause any noise or other condition that will or
might disturb the peace, quiet, safety, comfort, or serenity of the occupants
of surrounding property. There shall not be maintained any plants or animals or
device or thing of any sort whose activities or existence in any way is
noxious, dangerous, unsightly, unpleasant, or of a nature as may diminish or
destroy the enjoyment of the Properties.
Section 6. Unsightly or Unkempt Conditions.
It shall be the responsibility of each Owner to prevent the development of any
unclean, unhealthy, unsightly, or unkempt condition on his or her Unit. Without
limiting the generality of the foregoing, residents shall not engage in
automotive or mechanical maintenance, other than replacement of basic fluids,
that involves the repair of motor vehicles or other mechanical devices.
Section 7. Antennas. No exterior antennas,
aerials, satellite dishes, or other apparatus for the transmission of
television, radio, or other signals of any kind shall be placed, allowed, or
maintained upon any portion of the Common Area without the prior written
consent of the Board or its designee. As explained in the rules and
regulations, the installation of telecommunications equipment on individual
homes and lots is governed by Federal Law. The Association shall have the
right, without obligation, to erect an aerial, satellite dish, or other
apparatus for a master antenna or cable system for the benefit of all or a
portion of the Properties, should any such master system or systems be utilized
by the Association and require any such exterior apparatus.
Section 8. Clotheslines, Garbage Cans, Tanks,
Etc. All clotheslines, garbage cans, above-ground tanks, and other similar
items shall be located or screened so as to be concealed from view of
neighboring Units, streets, and property located adjacent to the Unit. All
rubbish, trash, and garbage shall be regularly removed from the Properties and
shall not be allowed to accumulate thereon.
Section 9. Subdivision of Unit. No Unit shall be subdivided or
its boundary lines changed except with the prior written approval of the Board
of Directors of the Association.
Section 10. Guns. The discharge of firearms
within the Properties is prohibited. The term “firearms” includes
“B-B” guns, pellet guns, and other firearms of all types, regardless
of size.
Section 11. Irrigation. No sprinkler or irrigation systems of
any type which draw upon water from creeks, streams, rivers, lakes, ponds,
wetlands, canals or other ground or surface waters within the Properties shall
be installed, constructed or operated within the Properties unless prior
written approval has been received from the ARC. All sprinkler and irrigation
systems shall be subject to approval in accordance with Article XI of this
Declaration. Private wells are prohibited on the Properties.
Section 12. Tents, Trailers and Temporary
Structures. Except as may be permitted by the ARC during initial construction
within the Properties, no tent, utility shed, shack, trailer or other structure
of a temporary nature shall be placed upon a Unit or any part of the
Properties.
Section 13. Drainage and Septic Systems. Catch basins and
drainage areas are for the purpose of natural flow of water only. No
obstructions or debris shall be placed in these areas. No person may obstruct
or rechannel the drainage flows after location and installation of drainage
swales, storm sewers, or storm drains. Declarant hereby reserves a perpetual
easement across the Properties for the purpose of altering drainage and water
flow; provided, such easement right shall not be exercised in such a manner as
to unreasonably interfere with the use of any Unit without the affected Unit
Owner’s consent. Septic systems are prohibited on the Properties.
Section 14. Tree Removal. No trees shall be
removed, except for diseased or dead trees and trees needing to be removed to
promote the growth of other trees or for safety reasons, unless approved in
accordance with Article XI of this Declaration.
Section 15. Sight Distance at Intersections.
All property located at street intersections shall be landscaped so as to
permit safe sight across the street corners. No fence, wall, hedge, or shrub
planting shall be placed or permitted to remain where it would create a traffic
or sight problem.
Section 16. Utility Lines. No overhead utility lines, including
lines for cable television, shall be permitted within the Properties, except
for temporary lines as required during construction and high voltage lines if
required by law or for safety purposes.
Section 17. Air Conditioning Units. Except
as may be permitted by the Board or its designee, no window air conditioning
units may be installed in any Unit.
Section 18. Artificial Vegetation, Exterior
Sculpture, and Similar Items. No artificial vegetation shall be permitted on
the exterior of any portion of the Properties. Exterior sculpture, fountains,
flags, and similar items must be approved in accordance with Article XI of this
Declaration.
Section 19. Energy Conservation Equipment. No solar energy
collector panels or attendant hardware or other energy conservation equipment
shall be constructed or installed unless it is an integral and harmonious part
of the architectural design of a structure, as determined in the sole
discretion of the appropriate committee pursuant to Article XI hereof.
Section 20. Lakes and Water Bodies. All
lakes, ponds, and streams within the Properties, if any, shall be aesthetic
amenities only, and no other use thereof, including, without limitation,
fishing, swimming, boating, playing, or use of personal floatation devices,
shall be permitted. The Association shall not be responsible for any loss,
damage, or injury to any person or property arising out of the authorized or
unauthorized use of lakes, ponds, or streams within the Properties.
Section 21. Playground. Any playground or other play areas or
equipment furnished by the Association or erected within the Properties shall
be used at the risk of the user, and the Association shall not be held liable
to any person for any claim, damage, or injury occurring thereon or related to
use thereof.
Section 22. Fences. No dog runs, animal pens or fences of any
kind shall be permitted on any Unit except as approved in accordance with
Article XI of this Declaration.
Section 23. Business Use. No trade or
business may be conducted in or from any Unit, except that an Owner or occupant
residing in a Unit may conduct business activities within the Unit so long as:
(a) the existence or operation of the business activity is not apparent or
detectable by sight, sound or smell from outside the Unit; (b) the business
activity conforms to all zoning requirements for the Properties; (c) the
business activity does not involve persons coming onto the Properties who do
not reside in the Properties or door-to-door solicitation of residents of the
Properties; and (d) the business activity is consistent with the residential
character of the Properties and does not constitute a nuisance, or a hazardous
or offensive use, or threaten the security or safety of other residents of the
Properties, as may be determined in the sole discretion of the Board.
The terms “business” and “trade”, as used in
this provision, shall be construed to have their ordinary, generally accepted
meanings, and shall include, without limitation, any occupation, work or
activity undertaken on an ongoing basis which involves the provision of goods
or services to persons other than the provider’s family and for which the
provider receives a fee, compensation, or other form of consideration,
regardless of whether: (i) such activity is engaged in full or part-time; (ii)
such activity is intended to or does generate a profit; or (iii) a license is
required therefor. Notwithstanding the above, the leasing of a Unit shall not
be considered a trade or business within the meaning of this Section.
Section 24. On-Site Fuel Storage. No on-site
storage of gasoline, heating or other fuels shall be permitted on any part of
the Properties except that up to five (5) gallons of fuel may be stored on each
Unit for emergency purposes and operation of lawn mowers and similar tools or
equipment.
Section 25. Leasing.
(a) Definition. “Leasing”, for purposes of this
Declaration, is defined as regular, exclusive occupancy of a Unit by any person
or persons other than the Owner for which the Owner receives any consideration
or benefit, including, but not limited to a fee, service, gratuity, or
emolument.
(b) Leasing Provisions.
- (i) General. Units may be leased only in their entirety. No
transient tenants may be accommodated in a Unit. All leases shall be in writing
and shall be for an initial term of no less than thirty (30) days, except with
the prior written consent of the Board of Directors. Notice of any lease,
together with such additional information as may be required by the Board,
shall be given to the Board by the Unit Owner within ten (10) days of execution
of the lease, as required by Article XIII, Section 12 of this Declaration. The
Owner must make available to the lessee copies of the Declaration, By-Laws, and
the rules and regulations, and the lessee shall be subject to and shall comply
with all the terms thereof. The Board may adopt reasonable rules regulating
leasing and subleasing.
Article XIII – General
Provisions
Section 1. Term. The covenants and restrictions of this
Declaration shall run with and bind the properties, and shall inure to the
benefit of and shall be enforceable by the Association or the Owner of any
properties subject to this Declaration, their respective legal representatives,
heirs, successors, and assigns, for a term of thirty (30) years from the date
this Declaration is recorded, after which time they shall be automatically
extended for successive periods of ten (10) years, unless an instrument in
writing, signed by a majority of the then Owners, has been recorded within the
year preceding the beginning of each successive period of ten (10) years,
agreeing to change said covenants and restrictions, in whole or in part, or to
terminate the same (subject to Article XIV hereof), in which case this
Declaration shall be modified or terminated as specified therein.
Section 2. Amendment. This Declaration may be amended only by
the affirmative vote (in person or by alternate) or written consent, or any
combination thereof, of Voting Members representing seventy-five percent of the
Unit Owners. In addition, the approval requirements set forth in Article XIV
hereof shall be met, if applicable. Notwithstanding the above, the percentage
of votes necessary to amend a specific clause shall not be less than the
prescribed percentage of affirmative votes required for action to be taken
under that clause. Any amendment to be effective must be recorded in the Office
of the Recorder of Deeds of DuPage County, Illinois.
If an Owner consents to any amendment to this Declaration or the
By-Laws, it will be conclusively presumed that such owner has the authority so
to consent and no contrary provision in any Mortgage or contract between the
Owner and a third party will affect the validity of such amendment.
Section 3. Indemnification. The Association shall indemnify
every officer, director, and committee member against any and all expenses,
including counsel fees, reasonably incurred by or imposed upon such officer,
director, or committee member in connection with any action, suit, or other
Proceeding (including settlement of any suit or proceeding, if approved by the
then Board of Directors) to which he or she may be a party by reason of being
or having been an officer, director, or committee member. The officers,
directors, and committee members shall not be liable for any mistake of
judgment, negligent or otherwise, except for their own individual willful
misfeasance, malfeasance, misconduct, or bad faith. The officers and directors
shall have no personal liability with respect to any contract or other
commitment made by them, in good faith, on behalf of the Association (except to
the extent that such officers or directors may also be Members of the
Association), and the Association shall indemnify and forever hold each such
officer and director free and harmless against any and all liability to others
on account of any such contract or commitment. Any right to indemnification
provided for herein shall not be exclusive of any other rights to which any
officer, director, or committee member, or former officer, director, or
committee member may be entitled. The Association shall, as a common expense,
maintain adequate general liability and officers’ and directors’
liability insurance to fund this obligation, if such insurance is reasonably
available.
Section 4. Easements of Encroachment. There shall be reciprocal
appurte-nant easements of encroachment and for maintenance of encroachments as
between each Unit and such portion or portions of the Common Area adjacent
thereto or as between adjacent Units due to the unintentional placement or
settling or shifting of the improvements constructed, reconstructed, or altered
thereon (in accordance with the terms of these restrictions) to a distance of
not more than three (3) feet, as measured from any point on the common boundary
between each Unit and the adjacent portion of the Common Area or as between
said adjacent Units, as the case may be, along a line perpendicular to such
boundary at such point; provided, however, in no event shall an easement for
encroachment exist if such encroachment occurred due to willful and knowing
conduct on the part of an Owner, tenant, or the Association.
Section 5. Easements for Utilities, Etc. There is hereby
reserved for Association, and the designees of each (which may include, without
limitation, DuPage County, Illinois, and any utility), blanket easements upon,
across, over, and under all of the Common Areas and, to the extent shown on any
plat, over the Units for ingress, egress, installation, replacing, repairing,
and maintaining cable television systems, master television antenna systems,
security, and similar systems, roads, walkways, bicycle pathways, lakes, ponds,
wetlands, drainage systems, street lights, signage, and all utilities,
including, but not limited to, water, sewers, meter boxes, telephones, gas, and
electricity.
Without limiting the generality of the foregoing, there are
hereby reserved for the local water supplier easements across all Units for
ingress, egress, installation, reading, replacing, repairing, and maintaining
water meter boxes. Notwithstanding anything to the contrary contained in this
Section, no sewers, electrical lines, water lines, or other utilities may be
installed or relocated on the Properties, except as may be approved by the
Association’s Board of Directors.
Should any entity furnishing a service covered by the general
easement herein provided request a specific easement by separate recordable
document, the Board of Directors shall have the right to grant such easement
over the Properties without conflicting with the terms hereof. The easements
provided for in this Article shall in no way adversely affect any other
recorded easement on the Properties.
The Board shall have, by a two-thirds (2/3) vote of either the
Board of Directors or the Owners, the Power to dedicate portions of the Common
Area to the City of Aurora, Illinois, or to any other local, state, or federal
governmental entity, for utility or other purposes subject to such approval
requirements as may be contained in Article XIV, Section 3 of this Declaration.
Section 6. Severability. Invalidation of any one of these
covenants or restrictions by judgment or court order shall in no way affect any
other provisions, which shall remain in full force and effect.
Section 7. Right of Entry. The Association shall have the right,
but not the obligation, to enter into any Unit for emergency, security, and
safety, which right may be exercised by the Association’s Board of
Directors, officers, agents, employees, managers, and all policemen, firemen,
ambulance personnel, and similar emergency personnel in the performance of
their respective duties. Except in an emergency situation, entry shall only be
during reasonable hours and after notice to the Owner. This right of entry
shall include the right of the Association to enter a Unit to cure any
condition which may increase the possibility of a fire or other hazard in the
event an Owner fails or refuses to cure the condition upon request by the
Board.
Section 8. Perpetuities. If any of the covenants, conditions,
restrictions, or other provisions of this Declaration shall be unlawful, void,
or voidable for violation of the rule against perpetuities, then such
provisions shall continue only until twenty-one (21) years after the death of
the last survivor of the now living descendants of Elizabeth II, Queen of
England.
Section 9. Litigation. No judicial or administrative proceeding
shall be commenced or prosecuted by the Association unless approved by a vote
of seventy-five (75%) percent of the Voting Members. In the case of such a
vote, and notwithstanding anything contained in this Declaration or the
Articles of Incorporation or By-Laws of the Association to the contrary, a
Voting Member shall not vote in favor of bringing or prosecuting any such
proceeding unless authorized to do so by a vote of seventy-five (75%) percent
of all Members of the neighborhood represented by the Voting Member. This
Section shall not apply, however, to (a) actions brought by the Association to
enforce the provisions of this Declaration (including, without limitation, the
foreclosure of liens) rules and regulations adopted by the Board of Directors,
(b) the imposition and collection of assessments as provided in Article X
hereof, (c) proceedings involving challenges to ad valorem taxation, or (d)
counterclaims brought by the Association in proceedings instituted against it.
This Section shall not be amended unless such amendment is approved by the
percentage votes, and pursuant to the same procedures, necessary to institute
proceedings as provided above.
Section 10. Cumulative Effect; Conflict. The covenants,
restrictions, and provisions of this Declaration shall be cumulative with those
of any neighborhood Association and the Association may, but shall not be
required to, enforce the latter; provided, however, in the event of conflict
between or among such covenants and restrictions, and provisions of any
articles of incorporation, By-Laws, rules and regulations, policies, or
practices adopted or carried out pursuant thereto, those of any Neighborhood
Association shall be subject and subordinate to those of the Association. The
foregoing priorities shall apply, but not be limited to, the liens for
assessments created in favor of the Association.
Section 11. Use of the Words “Oakhurst” or
“Oakhurst Community Association”. No Person shall use the words
“Oakhurst” or “Oakhurst Community Association” or any
derivative thereof in any printed or promotional material for commercial
purposes, which represents their activities or materials as endorsed by the
Board of Directors or constituting official communications of the Association
without the prior written consent of the Board of Directors. However, Owners
may use the terms “Oakhurst” or “Oakhurst Community
Association” in printed or promotional matter where such term is used
solely to specify that particular property is located within Oakhurst.
Section 12. Notice of Sales and Leases. Any Owner who intends to
sell or lease his or her Unit shall provide written notice to the board of
Directors within ten (10) days of entering into an agreement for the sale or
lease. Such notice shall include the names of the purchaser or lessee and all
occupants of the Unit, their mailing addresses, if other than the Unit address,
as well as any other information which may reasonably be required by the Board.
In the case of apartment buildings, the Board may accept a monthly tenant roll
in lieu of copies of leases. This Section shall not be deemed to give the
Association or any person a right of first refusal or any other such right with
respect to any Unit.
Section 13. Enforcement. Subject to the requirements of Article
III, Section C.6 of the By-Laws, the Association, acting through the Board of
Directors, and any aggrieved Unit Owner, shall have the right to enforce the
terms of this Declaration, the By-Laws, the rules and regulations of the
Association or any decision of the Association made pursuant to the foregoing,
subject to the requirements of Article III, Section C.6 of the By-Laws.
Article XIV – Mortgagee
Provisions
The following provisions are for the benefit of holders of first
Mortgages on Units in the Properties. The provisions of this Article apply to
both this Declaration and to the By-Laws, notwithstanding any other provisions
contained therein.
Section 1. Notices of Action. An institutional holder, insurer,
or guarantor of a first Mortgage who provides written request to the
Association (such request to state the name and address of such holder,
insurer, or guarantor and the Unit number, therefore becoming an “eligible
holder”), will be entitled to timely written notice of:
- any condemnation loss or any casualty loss which affects a
material portion of the Properties or which affects any Unit on which there is
a first Mortgage held, insured, or guaranteed by such eligible holder;
- any delinquency in the payment of assessments or charges
owned by an Owner of a Unit subject to the Mortgage of such eligible holder,
where such delinquency has continued for a period of sixty (60) days; provided,
however, notwithstanding this provision, any holder of a first Mortgage, upon
request, is entitled to written notice from the Association of any default in
the performance by an Owner of a Unit of any obligation under the Declaration
or By-Laws of the Association which is not cured within sixty (60) days;
- any lapse, cancellation, or material modification of any
insurance policy maintained by the Association; or
- any proposed action which would require the consent of a
specified percentage of eligible holders.
Section 2 – Amendments to Documents
(a) The consent of Voting Members representing at least
sixty-seven (67%) percent of the votes and the approval of the eligible holders
of first Mortgages on sixty-seven (67%) percent of the Units subject to a
Mortgage held by an eligible holder, shall be required to terminate the
Association for reasons other than substantial destruction or condemnation. Any
election to terminate the Association after substantial destruction or a
substantial taking in condemnation shall require the approval of the Voting
Members as specified above and the eligible holders of first Mortgages on
fifty-one (51%) percent of the Units subject to Mortgages held by such eligible
holders.
(b) Any restoration or repair of the Properties after a partial
condemnation or damage due to an insurable hazard shall be substantially in
accordance with this Declaration and the original plans and specifications
unless the approval is obtained of the eligible holders of first Mortgages on
Units to which at least fifty-one (51%) percent of the Units subject to
Mortgages held by such eligible holders are allocated.
(c) The consent of Voting members representing at least
sixty-seven (67%) of the votes and the approval of eligible holders of first
Mortgages on fifty-one (51%) percent of the Units subject to a Mortgage held by
an eligible holder, shall be required materially to amend any provisions of the
Declaration, By-Laws, or Articles of Incorporation of the Association or to add
any material provisions thereto, which establish, provide for, govern, or
regulate any of the following:
- (i) voting;
- (ii) assessments, assessment liens, or subordination of such
liens;
- (iii) reserves for maintenance, repair, and replacement of
the Common Area;
- (iv) insurance or fidelity bonds;
- (v) rights to use the Common Area;
- (vi) responsibility for maintenance and repair of the
Properties;
- (vii) expansion or contraction of the Properties or the
addition, annexation, or withdrawal of Properties to or from the Association
(as provided in Articles II and VIII of this Declaration);
- (viii)boundaries of any Unit;
- (ix) leasing of Units;
- (x) imposition of any right of first refusal or similar
restriction of the right of any Owner to sell, transfer, or otherwise convey
his or her Unit;
- (xi) establish of self-management by the Association where
professional management has been required by an eligible holder; or
- (xii) any provisions included in the Declaration, By-Laws, or
Articles of Incorporation which are for the express benefit of holders,
guarantors, or insurers of first Mortgages on Units.
Section 3. Special FHLMC Provision. So long as required by the
Federal Home Loan Mortgage Corporation, the following provisions apply in
addition to and not in lieu of the foregoing. Unless at least two-thirds (2/3)
of the first Mortgagees or Voting Members representing at least two-thirds
(2/3) of the total Association vote entitled to be cast thereon consent, the
Association shall not:
- by act or omission seek to abandon, partition, subdivide,
encumber, sell, or transfer all or any portion of the real property comprising
the Common Area which the Association owns, directly or indirectly, except as
provided in Article XVI, (the granting of easements for public utilities or
other similar purposes consistent with the intended use of the Common Area, and
leasing of the Oakhurst Community Facilities pursuant to Article XVI hereof,
shall not be deemed transfers within the meaning of this subsection);
- change the method of determining the obligations,
assessments, dues, or other charges which may be levied against an Owner of a
Unit (A decision, including contracts, by the Board or provisions of any
declaration subsequently recorded on any portion of the Properties regarding
assessments for Neighborhoods or other similar areas shall not be subject to
this provision where such decision or subsequent declaration is otherwise
authorized by this Declaration.);
- by act or omission change, waive, or abandon any scheme of
regulations or enforcement thereof pertaining to the architectural design or
the exterior appearance and maintenance of Units and of the Common Area (The
issuance and amendment of architectural standards, procedures, rules and
regulations, or use restrictions shall not constitute a change, waiver, or
abandonment within the meaning of this provision.);
- fail to maintain insurance, as required by this Declaration;
or
- use hazard insurance proceeds for any Common Area loses for
other than the repair, replacement, or reconstruction of such property.
First Mortgagees may, jointly or singly, pay taxes or other
charges which are in default and which may or have become a charge against the
Common Area and may pay overdue premiums on casualty insurance policies or
secure new casualty insurance coverage upon the lapse of an Association policy,
and first Mortgagees making such payments shall be entitled to immediate
reimbursement from the Association.
Section 4. No Priority. No provision of this Declaration or the
By-Laws gives or shall be construed as giving any Owner or other party priority
over any rights of the first Mortgagee of any Unit in the case of distribution
to such Owner of insurance proceeds or condemnation awards for losses to or a
taking of the Common Area.
Section 5. Notice to Association. Upon request, each Owner shall
be obligated to furnish to the Association the name and address of the holder
of any Mortgage encumbering such Owner’s Unit.
Section 6. Amendment by Board. Should the Federal National
Mortgage Association or the Federal Home Loan Mortgage Corporation subsequently
delete any of their respective requirements which necessitate the provisions of
this Article or make any such requirements less stringent, the Board, without
approval of the Owners, may cause an amendment to this Article to be recorded
to reflect such changes.
Section 7. Applicability of Article XIV. Nothing contained in
this Article shall be construed to reduce the percentage vote that must
otherwise be obtained under the Declaration, By-Laws, or Illinois law for any
of the acts set out in this Article.
Section 8. Failure of Mortgagee to Respond. Any Mortgagee who
receives notice of and a written request from the Board to respond or consent
to any action shall be deemed to have approved such action if the Association
does not receive a written response from the Mortgagee within thirty (30) days
of the date of the Association’s request, provided such request is
delivered to the Mortgagee by certified or registered mail, with a return
receipt requested.
Article XV – Board of
Directors’ Rights
Any or all of the special rights and obligations of the Board of
Directors may be transferred to other Persons, provided that the transfer shall
not reduce an obligation nor enlarge a right beyond that contained herein, and
provided further, no such transfer shall be effective unless it is in a written
instrument signed by the Board of Directors and duly recorded in the
Recorder’s Office of DuPage County, Illinois. Nothing in this Declaration
shall be construed to require the Board of Directors or any successor to
develop any of the property set forth in Exhibit “B” in any manner
whatsoever.
No Person shall record any declaration of covenants, conditions
and restrictions, or declaration of condominium or similar instrument affecting
any portion of the Properties without Board of Directors’ review and
written consent thereto, and any attempted recordation without compliance
herewith shall result in such declaration of covenants, conditions and
restrictions, or declaration of condominium or similar instrument being void
and of no force and effect unless subsequently approved by recorded consent
signed by the Board of Directors.
Article XVI - Oakhurst Community
Facilities
Certain recreational facilities located within the Properties
and not transferred to another entity, which may include, without limitation,
tennis courts and parking facilities, shall be designated as Oakhurst Community
Facilities in the deed conveying them to the Association. The Board of
Directors shall have the right to restrict use of all or any portion of such
facilities to only such Persons as affirmatively elect to use the facilities
and agree to pay such initiation fees and additional assessments as are charged
for such privilege of use. Such Persons may, in the discretion of the Board,
include persons other than Owners and occupants of Units within the properties;
provided, such Persons shall be required to pay fees which are no less than
those charged Owners and occupants of Units, and shall have no greater use
rights than those extended to Owners and occupants of Units.
The fees and assessments established by the Board for use of, or
the rental payments charged by the Association pursuant to a lease of, these
Oakhurst Community Facilities shall include such sums as the Board of Directors
in the exercise of its business judgment deems sufficient to cover the
estimated costs to be incurred by the Association for the operation,
maintenance, repair, replacement and insurance of these Oakhurst Community
Facilities, but rental payments need not be limited to such amounts.
Notwithstanding the provisions of Article XIV, Section 3 hereof,
the Board of Directors, acting on behalf of the Association, may lease all of
the Oakhurst Community Facilities or any portion thereof to a private club
composed of such Owners who use the facility, or to a commercial operator, the
city or county parks department, or any other appropriate body, on such terms
and conditions as may be agreed to by the Board. If the Board so agrees in the
lease of such facilities, the lessee shall have the right to permit public use
upon payment of use fees, which shall not be less than the fees charged to
Owners for such use.
There is hereby reserved to all authorized users of such
Oakhurst Community Facilities an easement over the Common Areas of the
Association for direct ingress and egress to and from such Oakhurst Community
Facilities, subject to such rules and regulations as are established by the
Board of Directors.
The Board shall have the right at any time, subject to the terms
of any existing lease, and with a two-thirds vote of the Voting Members to
declare by majority vote that use of all or any portion of such facilities
shall no longer be restricted as provided herein, and thereafter such
facilities shall be deemed General Common Area for the use of all Owners and
all costs associated therewith shall be deemed Common Expenses.
IN WITNESS WHEREOF, the undersigned Board of Directors has
executed this Second Amended and Restated Declaration as of the 23rd day of
April, 2001.
OAKHURST COMMUNITY ASSOCIATION
This Second Amended and Restated Declaration of Covenants,
Conditions and Restrictions for Oakhurst Community Association has been
prepared by:
Mark D. Pearlstein
Levenfeld Pearlstein, LLC
33 West
Monroe Street
21st Floor
Chicago, Illinois 60603
EXHIBIT “A”
UNIT 30
All Lots located within Fox Valley East Region II Uit No. 30
Oakhurst, being a subdivision of part of Section 30, Township 38 North, Range
9, East of the Third Principal Meridian, according to the Plat thereof recorded
November 2, 1988 as Document R88-125537, in DuPage County, Illinois plus;
UNIT 33A
All Lots located within Fox Valley East Region II Unit No. 33A
Oakhurst, being a subdivision of part of Section 30, Township 38 North, Range
9, East of the Third Principal Meridian, according to the Plat thereof recorded
November 2, 1988 as Document R88-125538, in DuPage County, Illinois
UNIT 33B
All Lots located within Fox Valley East Region II Unit 33B
Oakhurst, being a subdivision of part of the Northeast ¼ and the
northwest ¼ of Section 30 the southwest ¼ of Section 19, all in
Township 38 North, Range 9, East of the Third Principal Meridian according to
the Plat thereof recorded June 12, 1990 as Document Number R90-072149, in
DuPage County, Illinois.
UNIT 34 PHASE I
All Lots located within Fox Valley East Region II Unit 34
Oakhurst, being a subdivision of part of Sections 20, 29 and 30 Township 38
North, Range 9, East of the Third Principal Meridian according to the Plat of
Resubdivision thereof recorded March 1, 1990 as Document Number R90-025935, in
DuPage County, Illinois.
UNIT 34 PHASE II
All Lots located within Fox Valley East Region II Unit 34 Phase
II Oakhurst, being a subdivision of part of the south ½ of Section 20
and the north ½ of Section 29, Township 38 North, Range 9, East of the
Third Principal Meridian according to the Plat thereof recorded September 20,
1990 as Document Number R90-124952, in DuPage County, Illinois.
UNIT 35
All Lots located within Fox Valley East Region II Unit 35
Oakhurst, being a subdivision of part of the south ½ of Section 20,
Township 38 North, Range 9, East of the Third Principal Meridian according to
the Plat thereof recorded, June 12, 1990 as Document Number R90-072148.
UNIT 37
All Lots located within Fox Valley East Region II Unit 37
Oakhurst, being a subdivision of part of the east ½ of Section 30,
Township 38 North, Range 9, East of the third Principal Meridian according to
the Plat thereof recorded November 8, 1989 as Document Number R89-141598 and
certificate of correction recorded November 28, 1989 as Document Number
R89-149407, in DuPage County, Illinois.
UNIT 41
All Lots located with Fox Valley East Region II, Unit No. 41
being a subdivision of part of the southwest quarter of Section 19 and part of
the north half of Section 30, all in Township 38 North, Range 9, East of the
Third Principal Meridian, according to the Plat thereof recorded June 12, 1990
as Document Number R90-072150, in DuPage County, Illinois.
EXHIBIT “B”
PARCEL 1:
- That part of Section 30, Township 38 North, Range 9 East of
the Third Principal Meridian lying North of the Waubonsie Creek: and
- That part of the South Half of Section 19, Township 38
North, Range 9 East of the Third Principal Meridian lying South of the center
line of East New York Street; and
- That part of the Northwest ¼ of Section 29, Township
38 North Range 9 East of the Third Principal Meridian lying North of the
Waubonsie Creek; and
- That part of the Northeast ¼ of Section 29, Township
38 North, Range 9 East of the Third Principal Meridian lying West of the
Commonwealth Edison Company Right-of-Way; and
- That part of the Southwest ¼ of Section 20, Township
38 North, Range 9 East of the Third Principal Meridian lying South of the
Center line of East New York Street; and
- That part of the Southwest ¼ of Section 20, Township
38 North, Range 9 East of the Third Principal meridian lying West of the
Commonwealth Edison Right of Way.
PARCEL 2:
All land falling within the following described tract which is
located north of East New York Street, to wit:
**Part of the Southwest quarter of Section 19 and part of the
Southwest quarter of Section 20, Township 38 North, Range 9, East of the Third
Principal Meridian, and bounded as follows: to-wit: Beginning at a stone at the
Northeast corner of the Southwest quarter of said Section 19; thence North 88
degrees 30 minutes East along the quarter section line 7.58 chains to a stone
in the East line of the Road to Eola; thence South 2 degrees West along the
East line of said road and old claim line 40.20 chains to a stone; thence South
88 degrees 30 minutes west along the section line 13 chains to a stone; thence
North 2 degrees 10 minutes East 40.22 chains to a stone in the North line of
the Southeast quarter of Section 19; thence North 88 degrees 30 minutes East
5.32 chains to the place of beginning (except part of Section 19 and 20, in the
Town of Naperville, DuPage County, Illinois, bounded and described as follows:
to-wit: Commencing at section line between said sections 19 and 20 and o half
section lines of said sections; thence West on half section line of said
Section 19, 5.32 chains; thence South 2 degrees 10 minutes West 5.43 chains to
a point; thence East, parallel with the half section line to a point in Section
20 that is South 2 degrees West and 5.43 chains from a point in half section
line of said Section 20, which is 7.58 chains East of place of beginning;
thence North 5.43 chains to a point on half section line, which is 7.58 chains
East of place of beginning; thence West on half section line of said Section
20, 7.58 chains to section line and place of beginning, ALSO EXCEPT part of the
Southwest quarter of Section 20, Township 38 North, Range 9, East of the third
Principal Meridian, described as follows, to-wit: Commencing at a stone at the
Northwest corner of the Southwest quarter of said Section 20; thence East on
the quarter section line 7.58 chains to a stone; thence South 2 degrees 45
minutes West 11/20 chains to a stone in the center of the Aurora-Naperville
Road for place of beginning; thence South 2 degrees 45 minutes West 4 rods to a
point; thence West parallel with the Aurora-Naperville Road, 8 rods to a point;
thence North 2 degrees 45 minutes East 40 rods to the center of the
Aurora-Naperville Road, thence Easterly along the center of the
Aurora-Naperville Road, 8 rods to the place o beginning, ALSO EXCEPTING part of
the South half of Section 20, Township 38 North, Range 9, East of the Third
Principal Meridian, being all that property lying between the boundary of the
present highway and a line running parallel with and 30 feet to the left and
right of the center line of construction Route 18 of the State Wide System of
Durable Hard-Surfaced Roads, which said center line is described as follows,
to-wit: Beginning at a point where the West line of said Section 20 crosses the
aforesaid center line at construction station 100 / 10; thence North 8 degrees
43 minutes East 2603.0 feet along said center line to a point at construction
station 126 / 13.0; thence North 84 degrees 22 minutes East 2870 feet along
said center line to a point at construction station 129 / 00 as per maps of
said State Wide System of Durable Hard-Surfaced Roads on file in the Department
of Public Works and Buildings of the State of Illinois Division of Highways.
The said property hereby dedicated for the purpose of a public highway lying to
the left and right and between stations 100 / 10 and 129 / 00 of the above
described center line, in DuPage County, Illinois.**
EXHIBIT “D”
AMENDED BY-LAWS OF OAKHURST COMMUNITY ASSOCIATION, INC.
Article I
Name, Principal Office,
and Definitions
Section 1. Name. The name of the Association shall be Oakhurst
Community Association, Inc. (hereinafter sometimes referred to as the
“Association”).
Section 2. Principal Office. The principal office of the
Association in the State of Illinois shall be located in DuPage County. The
Association may have such other offices, either within or outside the State of
Illinois, as the Board of Directors may determine or as the affairs of the
Association may require.
Section 3. Definitions. The words used in these By-Laws shall
have the same meaning as set forth in that Amended and Restated Declaration of
Covenants, Conditions, and Restrictions for Oakhurst Community Association
(said Declaration, as amended, renewed, or extended from time to time, is
hereinafter sometimes referred to as the “Declaration”), unless the
context shall prohibit.
Article II
Association: Membership,
Meetings, Quorum, Voting, Proxies
Section 1. Membership. The Association shall have one (1) class
of membership, as more fully set forth in the Declaration, the terms of which
pertaining to membership are specifically incorporated herein by reference.
Section 2 Place of Meetings. Meetings of the Association shall
be held at the principal office of the Association or at such other suitable
place convenient to the Members as may be designated by the Board of Directors
either within the Properties or as convenient thereto as possible and
practical.
Section 3. Annual Meetings. Meetings shall be of the Voting
Members or their alternates. Regular annual meetings shall be set by the Board
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