Berkeley Covenants

44176 BOOK 1518 PAGE 127

DECLARATION OF COVENANTS AND RESTRICIORS

BERKELEY NO. 1 ADDITION

THIS DECLARATION made this 12 TH day of OCTOBER l983, by BERKLEY DEVELOPMENT CORPORATION, hereinafter called Declarant.

W I T N E S S E T H:

WHEREAS, Declarant is the owner of certain property, herein called the Existing Property’, in the City of Norman, County of Cleveland, State of Oklahoma, which is more particularly described as:

Berkeley No. 1 Addition, A Planned Unit Development Subdivision, as shown by the recorded pint thereof filed concurrently with this Declaration.

WHEREAS, Declarant desires to create a residential community on the Existing Property with the open spaces and other common facilities for the benefit of the said community; and

WHEREAS, Declarant desires to provide for the preservation of the values and amenities in such community and for the maintenance and improvement of said open spaces and other common facilities now existing or hereafter erected thereon; and, to this end, desires to subject the Existing Property together with such additions as may hereafter be made thereto, as provided in Article X, to the covenants, restrictions, easements, charges and liens hereinafter referred to as the ‘covenants and restrictions, each and all or which are for the benefit of such property and each owner thereof; and,

WHEREAS, Declarant has deemed it desirable, for the foregoing purposes, to create an agency to which should be delegated and assigned the powers of maintaining and administering the community properties and facilities, administering and enforcing the covenants and restrictions, and collecting and disbursing the assessments ad charges hereinafter created; and,

WHEREAS, Declarant has therefore incorporated under the laws of the State of Oklahoma, as a nonprofit corporation, BERKLEY HOMEOWRERS Association, for the purpose of exercising the functions aforesaid;

AND DECLARANT FURTHER DECLARES that the Existing Property, and such additions thereto as may hereafter be made pursuant to Article X hereof, is and shall be held, transferred, sold, conveyed and” occupied subject to the covenants and restrictions hereinafter set forth, which shall run with such real property and shall be binding on all parties having or acquiring any right, title or interest therein or any part thereof, and shall inure to the benefit of each owner thereof and such owner’s heirs, devisees, personal representatives, trustees, successors, and assigns. Such covenants and restrictions being hereby imposed upon such real property and every part thereof as the dominant tenement.

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ARTICLE I

DEFINITIONS

Section 1. The following words when used in the Declaration or any Supplemental Declaration (unless the context shall prohibit) shall have the following meanings:

1.1 “The Properties shall mean the “Existing Property” described in the preamble above, together with all additions thereto which are the subject of any Supplementary Declaration filed under the provisions of Article X hereof.

1.2 “Open Space” shall mean those areas of land so designated on any recorded subdivision plat of The Properties.

1.3 “Lot” shall mean those areas of land so designated on any recorded subdivision plat of The Properties.

1.4 “Street” shall mean any street, cul—de—sac, alley, lane, drive, way, avenue, boulevard, court, circle, place, manor, terrace or other road intended for automobile traffic, as shown on any recorded subdivision p1at of The Properties.

1.5 “Detached Structure” shall mean any covered or enclosed structure on a Lot not attached to the main residence which it serves, and shall include, but not be limited to, carports, garages, outbuildings, tool sheds, kennels, cabanas, greenhouses and any temporary structures.

1.6 “Person” shall mean an individual, corporation, partnership, association, trust or other legal entity, or any combination thereof.

1.7 “Owner” shall mean the record owner, whether one or more persons, of the fee simple title to any Lot, including contract sellers, but shall not include a mortgagee unless such mortgagee has acquired title pursuant to foreclosure; nor shall such term include any other person who has an interest merely as security for the performance of an obligation.

1.8 “Association” shall mean and refer to BERKLEY HOMEOWNERS ASSOCIATION.

1.9 “Board” shall mean the Board of Directors of the Association.

1.10 “Articles” shall mean The Articles of Incorporation of the Association filed in the office of the Secretary of State of the State of Oklahoma; as such Articles may from time to time be amended.

1.3.1 “By-Laws” shall mean the By—Laws of the Association which are or shall be adopted by the Board as such By—Laws may from time to time be amended.

1.12 “Rules” shall mean the rules of the Association adopted by the Board, as they may be in effect from time to time pursuant to the provisions hereof.

1.13 “Occupancy” of any Lot shall mean that point in time when the first member of the Owner’s family or anyone authorized by the Owner moves into the residential unit located thereon.

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1.14 “Member,” “Class A Member” mean those persons so defined in Section 3.2 below.

1.15 “Architectural Committee” shall have the meaning specified in Section 5.1 below.

1.16 Visible from Neighboring Property” shall mean, as to any given object that such object is visible to a person six feet tall, standing on any part of such neighboring property at an elevation no greater than the elevation of the base of the object being viewed.

1.17 “General Plan” shall mean the General Plan of Development, described in Section 10.0.1 below.

1.18 “Supplementary Declaration” shall mean a Supplementary Declaration of Covenants and Restrictions, as specified in Section 10.4 below.

1.19 “Declarant” shall mean Berkley Square Development Corporation.

1.20 “Party Wall” shall have the meaning specified in Section 7.1 below.

1.21 “ Front Porch” shall mean an area adjacent to the front door covered to a minimum depth of three feet.

1.22 “Two—Car Garage” shall mean an enclosed parking structure with the minimum interior dimensions of 17 feet wide and 18 feet deep.

1.23 “Roof Pitch” shall mean the distance traveled by the roof vertically in proportion to the distance traveled horizontally.

1.24 “Corner Lot” shall mean a lot located at the intersection of and abutting on two (2) or more streets.

1.25 “Style” can best be defined Contemporary, Traditional, or 01d English.

ARTICLE II

PROPERTY RIGHTS IN THE OPEN SPACES

Section 2.1 . Members’ Easements of Enjoyment. Subject to the provisions of Section 2.3, every Member shall have a right and easement of enjoyment in and to the Open Spaces which shall be appurtenant to and shall pass with the title to every Lot.

Section 2.2 Title to Open Spaces . The Declarant may retain the legal title to the Open Spaces or any part thereof until such time as the Declarant has completed improvements thereon and until such time as, in the opinion of the Declarant, the Association is able to maintain the same; but, notwithstanding any provision herein, the Declarant hereby covenants that, Declarant shall convey to the Association all of the Open Spaces within the Existing Property free and clear of all liens and encumbrances, not later than July 1, 1989.

Section 2.3 Limitations Upon Owners’ Easements . The rights and easements of enjoyment created hereby shall be subject to the following:

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2.3.1. The right of the Association, in accordance with its Articles and By—Laws, to borrow money for the purpose of improving the Open Spaces and in aid thereof to mortgage those portions of the Open Spaces to which the Association has acquired legal title, provided, however, any such mortgage shall provide that in the event of a default the mortgagee’s rights thereunder as to any of such Open Space shall be limited to a right, after taking possession thereof, and without changing the character thereof, to charge admission and other fees as a condition to continued enjoyment by the Members until the mortgage debt is satisfied, whereupon the possession of such properties shall be returned to the Association and all rights of the Members hereunder shall be fully restored.

2.3.2. Except as provided in Section 2.3.1., above, the right of the Association to take such steps as are reasonably necessary to protect the above described properties against foreclosure; and

2.3.3. The right of the Association, as provided in its Articles and By—Laws, to suspend the enjoyment rights of any Member for any period during which any assessment remains unpaid, and for any period not to exceed sixty (60) days for any infraction of its published Rules; and

2.3.4. The right of the Association to charge the Members reasonable admission and other fees for the use of the Open Spaces; and

2.3.5. The right of the owner of the legal title to the Open Spaces to convey to any public agency, authority, or utility, easements for drainage or underground utility purposes across any part of the Open Spaces, provided that the proposed design and location of each such drainage and underground utility facility be first submitted in writing to and approved by the Architectural Committee, and further provided that the Architectural Committee’s approval shall be in writing, and may be qualified upon the satisfaction of specified conditions, but further provided that in the event the Architectural Committee fails to approve or disapprove such design and location within thirty (30) days after said plans have been submitted to it, or in any case, if no suit to enjoin the construction of the proposed facility has been commenced prior to the completion thereof, approval will not be required and this condition will be deemed satisfied; and,

2.3.6. The right of the Association to dedicate or convey all or any part of the Open spaces to which it has acquired legal title to any public agency, authority, or utility for such purposes other than those specified in Section 2.3.5. above, and subject to such conditions as may be agreed to by the Members, provided that no such dedication or conveyance by the Association shall be effective unless approved by the affirmative vote in person or by proxy of two—thirds (2/3) of all Members, and unless written notice of the proposed dedication or conveyance and of the meeting at which approval thereof or will be sought is sent to every member at least ninety (90) days in advance of such meeting.

2.3.7. Drainage easements along Block 1 (Lots 7, 9, 10) and Block 3 (Lots 4 and 5) shall be designated for pedestrian access to and from the common open space and to and from the public park. No screens shall be placed across these easements.

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Section 2.4. Delegation of Use. Any Owner, in accordance with the By-Laws, may delegate his right of enjoyment of the Common Areas to the members of his family, his tenants or contract purchase who reside on such Owner’s Lot.

ARTICLE III

MEMBERSHIP AND VOTING RIGUTS

IN TBE ASSOCIATION

Section 3.1. Membership . Every Owner of a Lot other than Lots which are exempt from assessment as specified in Section 4.1.0 below, shall be a member (herein called “Member”) of the Association. Membership shall be

appurtenant to and may not be separated from Ownership of any Lot which is subject to assessment. Except for the Declarant, the membership of an Owner shall become effective for all purposes upon the Owners Occupancy of his Lot; provided, however, that any Owner may, prior to Occupancy, voluntarily commence payment of assessments hereunder and thereupon become a Member as fully, as of such first payment, as if Occupancy had occurred. The assessment of an Owner who commences such payments prior to the completion of his residence shall be based upon the anticipated square footage to be contained in such residence when completed, at the rate per square foot specified in Section 4.3.1. below.

The Declarant’s membership became effective upon the creation of the Association.

Section 3.2. Voting Rights. The Association shall have two classes of voting membership:

Class A. “Class A Members” shall be all Owners with the exception of the Declarant and shall be entitled to one vote for each Lot owned. When more than one person holds an interest in any Lot, all such persons shall be Members, the vote for such Lot shall be exercised as they among themselves determine, but in no event sha1l more than one vote be cast with respect to any Lot.

Class B. The “Class B Member” shall be the Declarant which shall be entitled to three (3) votes for each Lot of which the Declarant is the Owner.

The Class B membership shall cease and be converted to Class A membership on the happening of either of the following events, whichever occurs earlier:

(a) when the total votes outstanding in the Class A membership equals the total votes outstanding in

the Class B membership, or

(b) on July 31, 1985.

Section 3.3. Additional Property. If Declarant adds additional Property to the Existing Property, as is provided in Article X hereof, the Owners of the Lots within the additional properties, including Declarant, shall be members and shall be accorded the voting rights provided in Section 3.2.

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ARTICLE IV

ASSESSMENTS

Section 4.1. Covenant for Assessment . The Declarant, for each Lot owned within the Properties, hereby covenants, and each Owner of any Lot by acceptance of a deed therefore, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association: (1) annual maintenance assessments, and (2) special assessments for capital improvements, both of which assessments to be established and collected as hereinafter provided. Such assessments shall be charges upon and shall be continuing liens upon the property against which each such assessment Is made, paramount and superior to any homestead or other exemption provided by law, and shall also be the personal obligation of the person who was the Owner of such property at the time when the assessment fell due, all as is more particularly provided in Section 4.8 and 4.9 below.

Section 4.2. Purpose of Assessments. The assessments levied by the Association shall be used exclusively to promote the recreation, health, safety, and welfare of the residents in The Properties and for the improvement and maintenance of the Open Spaces and to pay expenses made by the Association in accordance with its By-Laws. Only the Declarant shall be authorized to maintain or improve those parts of the Open Spaces to which the Declarant still holds legal title.

Section 4.3. Basis and Maximum of Annual Maintenance Assessments.

4.3.1. Until the year beginning July 1, 1985, the annual maintenance assessment shall be 5.10 per square foot contained in the residential unit on the Lot. For the purposes hereof, the square footage of a residential unit shall be based on veneer dimensions of the dwelling, exclusive of detached structures.

4.3.2. From and after July 1, 1985, the maximum annual maintenance assessment may be increased by the Board each year not more than 10% above the annual maintenance assessment for the previous year without a vote of the memberships provided that from and after the same date, the maximum annual maintenance assessment may be increased above 10% only with the consent of two—thirds (2/3) of the votes of the members who are voting in person or by proxy, at a meeting duly called for this purpose.

4.3.3 . The Board may fix the actual maintenance assessment for any such future year at a lesser amount.

Section 4.4 Special Assessments.

4.4.1. In addition to the annual maintenance assessments authorized above, the Association may levy, in any assessment year, a special assessment for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair, or replacement of capital Improvements upon the Open Spaces, including fixtures and personal property related thereto.

4.4.2. All special assessments shall be established as a percentage of the actual annual maintenance assessment established for the same year, to be levied in addition thereto, and such percentage shall be the same for all assessed Lots, provided, that special assessments shall

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never exceed fifty percent (5O%) of the actual annual maintenance assessment for the same year and must receive the assent of either (a) as to proposed special assessments which do not exceed twenty—five percent (25%) of the actual annual maintenance assessment, two thirds (2/3) of the votes of Members who are voting in person or by proxy at a meeting duly called for the purpose, or (b) nine tenths (9/10) of such votes as to proposed special assessments in excess of such twenty five percent (25%).

Section 4.5 . Notice and Quorum for Any Action Authorized Under Sections 4.1.2 and 4.4.3. Written notice of any meeting called for the purpose of taking any action authorized under Section 4.3.2. or 4.4.2., shall be sent to all Members not less than 30 days nor more than 60 days in advance of the meeting. At the first such meeting called, the presence of Members or of proxies entitled to case sixty percent (60%) of all the votes of the membership shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirement, and the required quorum at the subsequent meeting shall be one—half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than 60 days following the preceding meeting.

Section 4.6. Date of Commencement of Assessments: Due Dates.

4.6.1. Annual Maintenance Assessments, Generally . The annual maintenance assessments provided for herein shall commence as to all Owners who are Members on the date (which shall be the first day of a month) to be fixed by the Board.

The initial annual maintenance assessments shall be made for the balance of the then calendar year, and shall become due and payable on the day fixed f or commencement, and the annual maintenance assessments for any year after the first year shall became due and payable on the first day of March of said year, provided, however, that the Board may provide for the payment of such assessments in installments.

The amount of the annual maintenance assessment which may be levied for the balance remaining in the first year of assessment shall be an amount which bears the same relationship to the annual maintenance assessment determined in accordance with Section 4.3 hereof as the remaining number of months in that year bears to twelve. The same requirement in the amount of the annual maintenance assessment shall apply to the first such assessment levied against any Lot which becomes subject to assessment at a time other than the beginning of any assessment period.

4.6.2. Special Assessments, Generally. As to all Owners who are Members, the due date of any special assessment established as provided for in Section 4.4 hereof, shall be fixed in the resolution of the Members authorizing such assessment, which may also authorize the payment of such assessment in installments.

4.6.3. Maintenance and Special Assessments: Commencement as to Each Owner . As to any owner other than the Declarant, liability for both annual maintenance assessments and special assessments shall begin when the Owner becomes a Member as provided in Section 3.1 above. Declarant shall become liable for assessments upon the commence thereof as provided in Sections 4.6.1 and 4.6.2 above, as to all Lots still owned by Declarant, but subject to the credits provided in Section 4.7 below.

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Section 4.7 Credit for Expenditures.

4.7. 1 Notwithstanding the foregoing, monies expended by the Declarant during any assessment period in improving, maintaining and operating the Open Space shall be applied as credit to the sums otherwise owned by the Declarant to the Association hereunder as annual maintenance or special assessments for the same period, upon the receipt by the Association of satisfactory evidence thereof from the Declarant. Should the amounts so expended by the Declarant in any assessment period exceed the assessments against the Declarant for that period, the difference shall be carried over and applied as a credit or credits in the Succeeding period or periods.

Section 4.8. Effect of Nonpayment of Assessments: Remedies of the Association . Any assessment not paid within thirty (30) days after the due date shall bear interest from the due date at the then current per annum prime rate of the Liberty National Bank and Trust Company of Oklahoma City, Oklahoma, plus 4%, and the Association may bring an action at law against the Owner personally obligated to pay the same or foreclose the lien against the Property, and there shall be added to the amount of the delinquent assessment the costs of preparing the petition or complaint in the action. Any judgment thereafter obtained shall include interest on the assessment as above provided and a reasonable attorney’s fee to be fixed by the court, together with the costs of the action. No Owner may waive or otherwise escape liability for the assessments provided for herein by non—use of the Open Spaces or by the abandonment of his Lot.

Section 4.9. Subordination of the Lien in Mortgages . The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage now or hereafter placed upon any Lot being assessed. Sale or transfer of any Lot shall not affect the assessment lien provided that the sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding in lieu thereof shall extinguish the lien of such assessments as to payments which became due prior to such sale or transfer, but further provided that no sale or transfer shall relieve such Lot from liability for any assessments thereafter becoming due or from the lien thereof.

Section 4.10 . Exempt Property . All Open Spaces; all properties dedicated to and accepted by a local public authority and devoted to public use; and all properties owned by a charitable or non—profit organization exempt from taxation by tbe law of the State of Oklahoma shall be exempt from the assessments created herein, provided, however, that no land or improvements devoted to dwelling use shall be exempt from such assessments.

Section 4.11 . Duties of the Board . With respect to assessments, the Board shall:

Section 4.11.1 . Fix the commencement date for annual assessments against all Lots then owned by the Declarant and against all Lots then owned and occupied by other Owners, and send written notice thereof to all Owners, including Owners of unoccupied Lots, at lease thirty (30) days before such commencement date; and,

Section 4.11.2 . Cause the Association to prepare and maintain a roster of Lots, the Owners thereof, the assessments applicable thereto, if any, and the status of

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the Payment thereof, which shall be kept in the office of the Association and which shall be open to inspection by any Owner, and,

Section 4.11.3 . Upon demand at any time furnish to any Owner liable for an assessment a Certificate in writing Signed by an Officer of the Association stating whether said assessment has been paid, or, if being paid in installments, whether Payments are current Such certificate shall be Conclusive evidence of payment of any assessment or installment thereof which is therein stated to have been paid.

ARTICLE V

ARCHITECTUAL CONTROL

Section 5.1 . Review . No building, fence, wall, walk, driveway or other structure or improvement, including landscaping projects, shall be commenced, erected or maintained upon The Properties nor shall any exterior addition to or change or alteration therein, including, but not limited to repainting, be made until the plans and specifications showing the nature, kind, shape, color, height, materials and location of the same shall have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Architectural Committee which shall, as used herein, mean either (a) the Declarant so long as the Declarant is an Owner, or (b) thereafter, the Board of Directors or a committee composed of three (3) or more representatives appointed by the Board. All approvals shall be in writing, and may be qualified upon the satisfaction of specified conditions. provided, however,

That in the event the Architectural Committee fails to approve or disapprove such design and location within thirty (30) days after said plans and specifications have been submitted to it, or in any case, if no suit to enjoin the addition, alteration or change has been commenced prior to the completion thereof, approval will not be required and this Article will be deemed to have been fully satisfied.

Section 5.2 . Fees . No fee shall ever be charged by the Architectural Committee or by the Association for the review Specified in Section 5.1 or for any waiver or consent provided for herein.

Section 5.3 . Proceeding with Work . Upon receipt of approval as provided in Section 5.1, whether in writing or automatically by lapse of time, the Owner shall, as coon as is practicable, satisfy all Conditions of such approval, if any, and proceed with the approved work. Unless such work commences with one year from the date of approval, such approval shall be deemed revoked, and the Owner must again seek approval pursuant to all of the Provisions of Section 5.1.

Section 5.2 . The total floor area of a dwelling unit, exclusive of open porches and garage, shall be not lees than 1,100 square feet for a two bedroom unit and not less than 1,300 square feet for a three bedroom unit.

Section 5.3 . Each dwelling unit will be required to provide one each of the following: a two car garage, a fireplace, a covered front porch and washer-dryer hook—ups.

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Section 5.4 . Each main structure constructed on any residential building plat shall have at least 50% masonry veneer on the exterior walls below ceiling joints on the first floor.

Section 5.5 . No three tab composition shingles or wood shingles shall be used for roof coverings. Composition shingles used shall have a minimum density of 260 pounds per square.

Section 5.6 . Roof pitches shall be not less than 6:12 unless otherwise consented to by the Architectural Committee.

Section 5.7 . Corner lots shall be required to have adequate screening from the side Street as seen fit by the Architectural Committee.

Section 5.8 . The Architectural Committee shall retain the right to require a structure to be of one of the defined styles according to the Master Plan.

Section 5.9 . No building shall be located nearer than 25 feet to the front lot line. No building shall be located further than 28 feet from the front lot line unless otherwise required by the Architectural Committee.

ARTICLE VI

EXTERIOR MAINTENANCE

Section 6.1 . Responsibility . Each Owner shall be responsible for the exterior and interior maintenance upon each Lot, and said Owner shall keep the roofs, gutters, repair and condition at all times.

Section 6.2 . Board’s Right = Special Assessment . In the event any Owner in the opinion of the Board has failed to maintain the exterior of the building on his Lot, as aforesaid, the Board shall give the Owner notice in writing of the deficiencies. The Owner shall have thirty (30) days within which to cure the deficiencies. Should the Owner fail to cure the deficiencies in thirty (30) days, the Board shall be authorized to have the work performed at the expense of the Owner. There shall be added to the actual cost of the work 15% to cover the administrative expense of the Board. In such event, at the conclusion of the performance of the work, the Board shall notify the Owner of the cost of performing the work and if the Owner does not pay within fifteen (15) days, said cost shall be deemed an unpaid special assessment under Article IV hereof and shall be a lien on the property and subject to all collection rights therein provided.

Section 6.3 . Access at Reasonable Hours . For the sole purpose of performing the exterior maintenance authorized by this Article, the Association, through its duly authorized agents or employees, shall have the right after reasonable notice to Owner, to enter upon any Lot at reasonable hours on any day, except Sunday or a legal holiday.

Section 6.4 . Fences . The fences originally constructed between the Lots and on the perimeter of The Properties snail be maintained as constructed in a good

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state of repair by the abutting Property Owners. No change in construction whether by lowering, raising, inserting gates or otherwise, shall be permitted in the brick fence on the perimeter of The Properties. Fences, not between Lots, snail be maintained in a good state of repair by the Owner of the Lot.

ARTICLE VII

PARTY WALLS

Section 7. 1. General Rules of Law to Apply. In some instances, walls which are built as a part of the original construction of the homes upon The Properties and placed on a dividing line between Lots will be common wails and those so Constructed shall constitute a Party Wa11, and, to the extent not inconsistent with the provisions of this Article, the general rules of law regarding Party Walls and liability for property damage due to negligence or willful acts or omissions shall apply thereto.

Section 7.2 . Sharing of Repair and Maintenance . The cost of reasonable repair and maintenance of a Party Wall shall be shared by the Owners who make use of the Party Wall in proportion to such use.

Section 7.3 . Destruction by Fire or Other Casualty. If a Party Wall is destroyed or damaged by fire or other casualty, any Owner who has used the Party Wall may restore it, and if the other Owners thereafter make use of the Party Wall, they shall contribute to the coat of restoration thereof in proportion to such use without prejudice, however, to the right of any such Owners to call for a larger contribution from the others, under any rule of law regarding liability for negligent or willful acts or commissions.

Section 7.4 . Weatherproofing . Notwithstanding any other provision of this Article, an Owner who by his negligent or willful act causes a Party Wall to be exposed to the elements shall bear the whole cost of furnishing the necessary protection against such elements, and the entire responsibility for damage in the meantime resulting from the lack of such protection.

Section 7.5 . Right to Contribution Runs With Land . The right of any Owner to contribution from any other Owner under this Article shall be appurtenant to and run with the land and shall pass to such Owner’s successors in title.