HomeMy WebLinkAbout20260091 Lexington Rd & Bemis Heights Rd Subdivision Modification 9049 Bemis Point HOA Declaration - CLEAN 6.4.26
DECLARATION OF PROTECTIVE COVENANTS,
CONDITIONS, RESTRICTIONS, EASEMENTS,
CHARGES AND LIENS
OF
BEMIS POINT HOMEOWNERS’ ASSOCIATION, INC.
SPONSOR and DECLARANT: AAADMC VENTURES LLC.
DATE OF DECLARATION: _____________, 2026
i
TABLE OF CONTENTS
ARTICLE I DEFINITIONS ........................................................................................................ 2
Section 1.01 Definitions ............................................................................................................ 2
ARTICLE II PROPERTY SUBJECT TO THIS DECLARATION; ADDITIONS
THERETO .................................................................................................... 5
Section 2.01 The Property ......................................................................................................... 5
Section 2.02 Additional Property .............................................................................................. 5
Section 2.03 Mergers ................................................................................................................. 5
ARTICLE III THE ASSOCIATION: FORMATION AND MEMBERSHIP ................... 5
Section 3.01 Formation of the Association ............................................................................... 5
Section 3.02 Membership .......................................................................................................... 6
Section 3.03 Holder of Security Interest Not a Member ........................................................... 6
ARTICLE IV PROPERTY RIGHTS AND EASEMENTS ...................................................... 6
Section 4.01 Dedication of Association Property ..................................................................... 6
Section 4.02 Rights of Association ........................................................................................... 6
Section 4.03 Maintenance of Association Property .................................................................. 7
Section 4.04 Environmental Consideration ............................................................................... 7
Section 4.05 Wetlands Protection, Restrictions and Maintenance Requirements.. ................... 7
Section 4.06 Other Provisions ………………………………………………………………...9
Section 4.07 Title to the Lots. ................................................................................................. 10
ARTICLE V ASSESSMENTS: ALLOCATION, LIEN AND LIABILITY ......................... 10
Section 5.01 Obligations to Pay Assessments ......................................................................... 10
Section 5.02 Determination of and Basis for Assessments ..................................................... 11
Section 5.03 Purpose of Maintenance Assessments ................................................................ 11
Section 5.04 Date of Commencement and Notice of Assessments ......................................... 12
Section 5.05 Change in the Basis of Assessments .................................................................. 12
Section 5.06 Special Assessments for Capital Improvements ................................................ 12
Section 5.07 Assessments: Personal Obligations of the Member and Lien on Home ............ 13
Section 5.08 Foreclosure of Lien for Past Due Assessments .................................................. 13
Section 5.09 Notice of Default ................................................................................................ 14
Section 5.10 No Exemption or Waiver of Assessments .......................................................... 14
Section 5.11 Grantee to be Liable with Grantor for Unpaid Assessments .............................. 14
Section 5.12 Right to Maintain Surplus .................................................................................. 14
Section 5.13 Assessment Certificates ...................................................................................... 14
ARTICLE VI MAINTENANCE BY THE ASSOCIATION .................................................. 15
Section 6.01 Repairs and Maintenance by the Association ..................................................... 15
Section 6.02 Repairs and Maintenance Which Are Not the Responsibility of the Association15
Section 6.03 Alterations, Additions or Improvements to the Association Property ............... 15
ARTICLE VII INSURANCE AND RECONSTRUCTION ................................................... 16
Section 7.01 Insurance to be Carried by the Association. ............................................................ 16
Section 7.02. Restoration or Reconstruction After Fire or Other Casualty. ................................. 18
Section 7.03. Insurance To Be Carried By Owners. ..................................................................... 18
Section 7.04. Actions Which May Increase Insurance Rates Prohibited. .................................... 18
ii
ARTICLE VIII DURATION, ENFORCEMENT AND AMENDMENT OF
DECLARATION........................................................................................ 19
Section 8.01 Duration .............................................................................................................. 19
Section 8.02 All Owners, Tenants and Occupants Are Subject to Declaration which Runs
with the Land ........................................................................................................................... 19
Section 8.03 Abatement .......................................................................................................... 19
Section 8.04 Rules and Regulations ....................................................................................... 19
Section 8.05 Enforceability, Penalties and Fines .................................................................... 20
Section 8.06 No Waiver by Failure to Enforce ...................................................................... 20
Section 8.07 Obligation and Lien for Cost of Enforcement by Association ........................... 21
Section 8.08 Self-Help Abatement .......................................................................................... 21
Section 8.09 Amendment ........................................................................................................ 21
Section 8.10 Conflict with Municipal Laws ............................................................................ 23
Section 8.11 Attorney’s Fees Assessments ............................................................................. 23
Section 8.12 Change of Conditions ......................................................................................... 23
ARTICLE IX SELLING, MORTGAGING AND LEASING OF LOTS ............................. 23
Section 9.01 Selling, Leasing and Mortgaging of Homes ....................................................... 23
Section 9.02 Book of First Mortgagees ................................................................................... 23
Section 9.03 No Severance of Ownership ............................................................................... 23
Section 9.04 Member Responsible for Tenants ....................................................................... 24
ARTICLE X GENERAL COVENANTS AND RESTRICTIONS ......................................... 24
Section 10.01 Restrictions on Use of Lots .............................................................................. 24
Section 10.02 Use of the Property ........................................................................................... 25
ARTICLE XI GENERAL ......................................................................................................... 25
Section 11.01 Headings and Captions ..................................................................................... 25
Section 11.02 Severability ....................................................................................................... 26
Section 11.03 Waiver .............................................................................................................. 26
Section 11.04 Gender: Plural ................................................................................................... 26
Section 11.05 Notices .............................................................................................................. 26
Section 11.06 Right of Association to Transfer Interest ......................................................... 26
SCHEDULE A 28
Perimeter Description of All Lands of Bemis Point Homeowners’ Association, Inc. Made
Subject to This Declaration ..................................................................................................... 28
SCHEDULE B 29
PARCEL 1 Easement Rights to be Conveyed to Bemis Point Homeowners’ Association, Inc.29
1
DECLARATION OF PROTECTIVE COVENANTS,
CONDITIONS, RESTRICTIONS, EASEMENTS,
CHARGES AND LIENS
OF
BEMIS POINT HOMEOWNERS’ ASSOCIATION, INC.
THIS DECLARATION OF PROTECTIVE COVENANTS, CONDITIONS, RESTRICTIONS
EASEMENTS, CHARGES AND LIENS OF BEMIS POINT HOMEOWNERS’
ASSOCIATION, INC. (the “Declaration”) is made this ___ day of _____________, 2026 by
AAADMC VENTURES LLC, a New York limited liability company having an office at 1
Nadeau Road, Halfmoon, New York 12065, being referred to hereinafter as the “Sponsor”.
WITNESSETH:
WHEREAS, the Sponsor owns certain parcels of real property (the “Property”) in the City of
Saratoga Springs, Saratoga County, New York (said Property being more fully described in
Schedule A attached hereto); and
WHEREAS, the Sponsor intends to develop said real property into a residential community
known as “Bemis Point Homeowners’ Association, Inc.” (hereinafter sometimes referred to as
either the “Association” or the “Community”), consisting of approximately 21.78+/- acres of
land, on which may be constructed a maximum of thirteen (13) Homes on separate Lots and
upon a portion of said Property there will be the discharge of dredged or fill material into a
maximum of 0.44+/- acres of federal wetlands in a manner authorized by Department of the
Army Permit number NAN-2022-00960-UCA (“DA Permit”) issued on April 13, 2026 by the
United States Army Corps of Engineers, New York District (“Corps of Engineers”, to include
any successor agency) in accordance with the federal Clean Water Act, 33 U.S.C. § 1344; and
WHEREAS, in recognition of the continuing benefit to the Property; and for the protection of
waters of the United States and scenic, resource, environmental, and general property values,
the Sponsor and Declarant has included in Section 4.05 of this Declaration certain restrictive
covenants on a portion of the Property comprising 17.18+/- acres (as further described in
Section 1.01(t) hereof, the “Restricted Property”), in order that the Restricted Property shall
remain substantially in its natural condition forever, except as expressly identified herein; and
WHEREAS, the placement of said restrictive covenants on the Restricted Property along with
other mandatory maintenance obligations are also required by the City of Saratoga Springs
Planning Board (the “Planning Board”) as a condition of its approval of the Declarant’s
subdivision as shown on the Approved Subdivision Map (collectively, the “City Approvals”);
WHEREAS, the Sponsor desires to provide for the preservation of the values and amenities in
the Community and to assist in accomplishing this desires to subject the land described in
Schedule A to this Declaration of Protective Covenants, Conditions, Restrictions, Easements,
2
Charges and Liens of Bemis Point Homeowners’ Association, Inc. (hereinafter referred to as
this “Declaration”) which is for the benefit of said property and each Home Owner thereof; and
WHEREAS, the Sponsor has deemed it desirable, for the efficient preservation of the values
and amenities in said Community to create an agency to which should be delegated and
assigned the powers, among others, of (i) maintaining, administering and preserving the
Restricted Property (as hereinafter defined); (ii) administering and enforcing the covenants,
conditions and restrictions of the Declaration; (iii) maintaining the stormwater facilities in
accordance with the requirements of the City of Saratoga Springs as set forth herein; and (iv)
collecting and disbursing the assessments and charges hereinafter created; and
WHEREAS, the Sponsor has incorporated Bemis Point Homeowners’ Association, Inc. under
the Not-for-Profit Corporation Law of the State of New York for the purpose of exercising the
aforesaid powers, among others.
NOW, THEREFORE, the Sponsor for itself, its successors and assigns declares that the
real property described in Article II and in Schedule A hereof is and shall be held, transferred,
sold, conveyed and occupied, subject to this Declaration.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions
The following words, phrases or terms when used in this Declaration or in any
Supplemental Declaration shall, unless the context otherwise prohibits, have the following
meanings:
a. APPROVED SUBDIVISION MAP means the subdivision plat stamped
approved and signed by the City of Saratoga Springs Planning Board and such other
governmental agencies required by law, and filed in the Saratoga County Clerk’s Office, and
any subsequently filed amended or revised subdivision plat or plats (inclusive of all sheets filed
in the Saratoga County Clerk’s Office along with the Approved Subdivision Map).
b. ASSESSMENTS means, collectively, the Special Assessments and the
Maintenance Assessments.
c. ASSOCIATION means BEMIS POINT HOMEOWNERS’ ASSOCIATION,
INC.
d. ASSOCIATION PROPERTY or COMMON PROPERTY means the easement
rights of the Association relating to (i) the Restricted Property, (ii) the stormwater quality
basins, and (iii) the split rail fencing and (iv) the signage denoting the Restricted Property as
described in Schedule B, and the split rail fencing and signage referenced above that are owned
by and the property of the Association.
.
3
e. AUTHORIZED VOTES means there shall be only one vote for each Voting
Owner regardless of the number of Lots owned by such Owner.
f. BY-LAWS means the By-Laws of the Association, as the same may be amended
from time to time by the Members of the Association.
g. BOARD OF DIRECTORS or BOARD means the Board of Directors of the
Association.
h. COMMUNITY means the approximately 21.78+/- acre tract of land located in
the City of Saratoga Springs, Saratoga County, New York on which will be developed the
thirteen (13) Homes on separate Lots in the residential community known as “BEMIS POINT.”
i. DECLARATION means this document of Protective Covenants, Conditions,
Restrictions, Easements, Charges and Liens of BEMIS POINT HOMEOWNERS’
ASSOCIATION, INC., as it may from time to time be supplemented, extended or amended in
the manner provided for herein.
j. FIRST MORTGAGE means the first mortgage granted by an Owner on a Home
to a bank, federal savings and loan association, life insurance company, pension fund, trust
company or other institutional lender, licensed mortgage banker or broker, an individual or the
Sponsor.
k. FIRST MORTGAGEE means the original first mortgagee, its representatives,
assigns or other holder of a First Mortgage on a Home.
l. HOME means each completed Home situated upon the Property (as evidenced
by issuance of a Certificate of Occupancy issued by the appropriate municipality), including the
garage appurtenant to such Home, if any. Unless the context clearly indicates otherwise, the
term “Home” shall be deemed to include the term “Lot”.
m. HOME OCCUPATION means the definition of “Home Occupation”, if any, as
may be contained in the City of Saratoga Springs Zoning Ordinance.
n. LOT means any portion of the Property (with the exception of Association
Property) under the scope of the Declaration and identified as a separate parcel on the tax
records of the City of Saratoga Springs, New York. Unless the context clearly indicates
otherwise, the term “Lot” is included in the term “Home”.
o. MAINTENANCE ASSESSMENTS means the charges levied by the Board of
Directors against the Homes in accordance with Article V hereof to pay the cost of maintaining,
repairing, improving and replacing the Association Property, together with such amounts
deemed appropriate by the Board of Directors to be maintained as reserves for replacement of
Association Property, and for administering the affairs of the Association.
4
p. MORTGAGEE means any mortgagee, its representatives, assigns, servicing
agent or other holder of a mortgage on a Home.
q. OWNER or HOME OWNER or MEMBER means the holder of record title,
whether one or more Persons, of fee simple title to any Home or Lot, whether or not such holder
actually resides at such Home, and shall include the Sponsor with respect to any Unsold Home
brought under this Declaration.
r. PERSON means an individual, a corporation, a partnership, an estate, a trust, an
unincorporated organization or any other entity.
s. PROPERTY means all real property that now or in the future is subject to the
Declaration, as described in Section 2.01, including any additional property that may be made
subject to the Declaration pursuant to Section 2.02.
t. RESTRICTED PROPERTY means the 17.18± acres of wetlands and adjacent
uplands shown on the Approved Subdivision Map (including the full set of plans filed in the
Saratoga County Clerk’s Office with respect to the development of the Property as approved
by the City of Saratoga Springs Planning Board).
u. RULES AND REGULATIONS means the Rules and Regulations, if any,
promulgated by the Board of Directors pursuant to the By-Laws or the Declaration, as the same
may be amended from time to time.
v. SPECIAL ASSESSMENTS means the charges levied by the Board of Directors
against the Home or Lots in accordance with Article V hereof to pay for capital improvements
or other necessary out of the ordinary expenses.
w. SPONSOR or DECLARANT means AAADMC VENTURES LLC, a New York
limited liability company with an office at I Nadeau Road, Halfmoon, NY 12065, its successors
and assigns.
x. SUPPLEMENTAL DECLARATION means any Supplemental Declaration
supplemental hereto or amendatory hereof executed in accordance with the provisions hereof.
y. TRANSFER OF CONTROL DATE means the date that is thirty (30) days after
either the Sponsor has transferred title to one hundred percent (100%) of the Lots or the Sponsor
has given written notice to the Association that Sponsor is electing to transfer control of the
Association to the Board of Directors, whichever first occurs.
z. UNSOLD HOME means any Home or Lot owned by the Sponsor or its designee
other than any Home held by the Sponsor for personal use or personal investment.
aa. VOTING OWNER OR MEMBER means the Owner of a Home or Lot. In the
event a Home or Lot is owned by more than one person, the Voting Owner shall be the person
named in a certificate signed by all Owners of such Lot and filed with the Secretary of the
5
Board of Directors. If such certificate is not on file, the person or entity first named on the deed
by which title is obtained shall be the person considered the Voting Owner. The Voting Owner
of a Lot owned by a corporation, limited, liability company, partnership, trust, estate, or any
other legal entity, shall be the authorized representative of such entity.
ARTICLE II
PROPERTY SUBJECT TO THIS DECLARATION; ADDITIONS THERETO
Section 2.01 The Property
The real property which shall be subject to this Declaration consists of 21.78+/- acres of
land in the City of Saratoga Springs, County of Saratoga and State of New York, and more
particularly described in Schedule A attached hereto and made a part hereof and sometimes
referred to herein as the “Property”. The Property includes without limitation the Association
Property, which consists of split rail fencing and signage required by the City of Saratoga
Springs, and certain easement rights to maintain repair, and replace the (i) split rail fencing and
signage required by the City of Saratoga Springs, (ii) the stormwater facilities more particularly
described in Section 4.05 of this Declaration and (iii) the Restricted Property, and all Lots and
Homes within the Association.
Section 2.02 Additional Property
Upon approval in writing of the Association pursuant to a vote of its Members as
provided in the By-Laws, the owner of any property who desires to add it to the scheme of this
Declaration and to subject it to the jurisdiction of the Association may do so provided any and
all necessary approvals of the City of Saratoga Springs are obtained. Such additional property
shall be added by recording a Supplemental Declaration in the Office of the Clerk of Saratoga
County, New York signed by the Association and such owner. Any such Supplemental
Declaration recorded shall indicate the number of projected lots on the property added to the
scheme of this Declaration by such Supplemental Declaration.
Section 2.03 Mergers
Upon a merger or consolidation of the Association with another association its
properties, rights and obligations may, by operation of law, be transferred to another surviving
or consolidated association or alternatively, the properties, rights and obligations of another
association may, by operation of law, be added to the properties, rights and obligations of the
Association of a surviving corporation pursuant to a merger. The surviving or consolidated
association may administer this Declaration within the Community, together with the covenants,
conditions and restrictions established upon any other properties. No such merger or
consolidation, however, shall effect any revocation, change or addition to the covenants,
conditions and restrictions established by this Declaration within the Community, except as
hereinafter provided.
ARTICLE III
THE ASSOCIATION: FORMATION AND MEMBERSHIP
Section 3.01 Formation of the Association
6
Pursuant to the Not-for-Profit Corporation Law of the State of New York, the Sponsor
has formed the Association to own, operate and maintain the Association Property, enforce this
Declaration and to have such other specific rights, obligations, duties and functions as are set
forth in this Declaration, the Certificate of Incorporation and By-Laws of the Association, as the
same may be amended from time to time. Subject to the additional limitations provided in this
Declaration, the By-Laws and the Certificate of Incorporation, the Association shall have all the
powers and be subject to the limitations of a not-for-profit corporation as contained in the New
York State Not-for-Profit Corporation Law as the same may be amended from time to time.
Section 3.02 Membership
The Association shall have as Members only Owners of Lots and Homes in the
Community. All Owners shall, upon becoming such, be deemed automatically to have become
Members and there shall be no other qualification for membership. Membership shall be
appurtenant to, and shall not be separated from the ownership of the interest described in the
definition of the word “Owner” as found in Article I of this Declaration.
Section 3.03 Holder of Security Interest Not a Member
No Person shall be deemed a Member or to have any voting right merely by reason of
such Person’s holding a Mortgage on or other security interest in a Lot or Home.
ARTICLE IV
PROPERTY RIGHTS AND EASEMENTS
Section 4.01 Dedication of Association Property
(a) The Sponsor will convey to the Association subsequent to the recordation of this
Declaration and at or prior to the conveyance of the first Lot or Home, the Association Property
subject to the open space conditions and restrictions imposed by the City of Saratoga Springs
Planning Board as noted on the Approved Subdivision Map filed or to be filed in the Saratoga
County Clerk’s Office, and subject to the Easements of Access in favor of the Association, the
City of Saratoga Springs and the Corps of Engineers.
(b) The Association must accept any such conveyance and any future conveyance
made by the Sponsor provided such conveyance and any such future conveyance are made
without consideration.
Section 4.02 Rights of Association
With respect to the Association Property, and in accordance with the Certificate of
Incorporation and the By-Laws, the Board of Directors, consistent with the conditions imposed
by the City of Saratoga Springs Planning Board as noted on the Approved Subdivision Map (see
also §4.05 below), shall have the right to contract with any Person for the performance of
various duties and functions. Without limiting the foregoing, this right shall entitle the
Association to enter into common management agreements with trusts, condominiums,
cooperatives and other homeowners’ associations. Such agreements shall require the consent of
two-thirds (2/3) of the entire Board of Directors of the Association.
7
Until the Transfer of Control Date, the Board of Directors may not exercise the
foregoing rights as set forth in this Section 4.02 without the prior written consent of the
Sponsor.
None of the foregoing shall diminish the Association’s responsibilities of enforcing the
restrictions and carrying out the maintenance responsibilities specifically set forth in Section
4.05 of this Declaration.
Section 4.03 Maintenance of Association Property
In order to preserve and enhance the values and amenities of the Association Property,
the Association shall at all times maintain the Association Property in good condition and shall
operate such Association Property in accordance with acceptable or generally accepted high
standards. Further, the Association shall enforce the restrictions and carry out the maintenance
responsibilities specifically set forth in Section 4.05 of this Declaration.
Section 4.04 Environmental Consideration
In carrying out its responsibilities in enforcing the provisions of this Declaration, the
Association shall consider the environmental impact of any existing or proposed activities on
the nature and character of the Community or any portion thereof and may, in its discretion,
take affirmative action to improve the quality of the environment or establish standards or
guidelines aimed at reducing or eliminating any activities which could have a significant
adverse environmental impact. Until the Transfer of Control Date, no such action may be taken
on the Property, nor may such guidelines be established without the prior written consent of the
Sponsor. None of the foregoing shall diminish the Association’s responsibilities of enforcing
the restrictions and carrying out the maintenance responsibilities specifically set forth in Section
4.05 of this Declaration.
Section 4.05 Wetlands Protection, Restrictions and Maintenance Requirements..
The Restricted Property contains freshwater wetlands. The Association and its Members
(and family members, tenants, guests and invitees of the Members) shall comply with all of the
following restrictions applicable to the Restricted Property to preserve and protect the Restricted
Property.
A. General. There shall be no future filling, flooding, excavating, mining or drilling; no
removal of natural materials; and no alteration of the topography which would materially
affect the Restricted Property in any manner, except as authorized by the DA Permit.
B. Waters and Wetlands. In addition to the general restrictions above, within the
Restricted Property there shall be no draining, dredging, damming or impounding; no
changing the grade or elevation, impairing the flow or circulation of waters, or reducing
the reach of waters; and no other discharges or activity requiring a permit under
applicable water pollution control laws or regulations, except as authorized by the DA
Permit.
8
C. Trees/Vegetation. On the Restricted Property, there shall be no clearing, burning,
cutting or destroying of trees or vegetation, except removal or trimming of vegetation
hazardous to person or property, or of timber downed or damaged due to natural disaster,
or as authorized by the DA Permit. There shall be no planting or introduction of non-
native or exotic species of trees or other vegetation.
D. Disposal. There shall be no dumping of trash, waste, garbage or toxic, unsightly,
hazardous or offensive material on the Restricted Property.
E. Uses. No agricultural, animal grazing, industrial, mining, logging or commercial
activity shall be undertaken or allowed on the Restricted Property.
F. Structures/Utilities. There shall be no construction, erection or placement of
buildings, billboards, utilities components or any other structures, to include trailers,
mobile homes or recreational vehicles, telecommunications towers or antennas, on the
Restricted Property.
G. Roads. There shall be no construction of roads, trails or walkways on the Restricted
Property.
H. Pest Control. There shall be no application of pesticides or herbicides on the
Property, including the Restricted Property.
I. Vehicle Use. There shall be no driving or use of any mechanical conveyance which
may alter or impair the natural contour of the Restricted Property or its natural
vegetation, except that motor vehicles may be used in case of emergency, for law-
enforcement purposes, or to perform mitigation activity as required by the DA Permit.
J. Other Prohibitions. Any other use of, or activity on, the Restricted Property which is
or any way becomes inconsistent with the purposes of this Declaration, the preservation
of the Restricted Property substantially in its natural condition, or the protection of its
environmental systems, is prohibited.
AFFIRMATIVE OBLIGATIONS
A. Maintenance of Restricted Property.
The Association shall provide for the annual inspection of the Restricted Property by a
wetland technician or other qualified environmental professional to determine what
maintenance and upkeep measures are necessary to prevent damage to any home
(whether located on the Property or not) and its surrounding yard and to control and
maintain appropriate water levels within the wetlands located on the Restricted Property.
Such measures may include, but are not limited to, the management or removal of
beavers and/or beaver dams. Prior to the first sale of a Lot, the Declarant shall obtain an
inspection of the Restricted Property by a wetland technician or other qualified
environmental professional to establish baseline conditions against which future
inspections will be assessed. Within thirty (30) days following each inspection, the
9
Association shall cause the inspecting professional to prepare and submit to the City of
Saratoga Springs a written report of findings including recommendations for those
actions necessary to be taken with respect to the Restricted Property. The Association
shall implement the recommendations of the inspecting professional in a timely manner
and provide evidence of such implementation to the City of Saratoga Springs. The
Association shall be responsible for obtaining all necessary permits and approvals, if any,
to carry out the recommendations of the inspecting professional including, but not limited
to, permits associated with the management or removal of beavers and/or beaver dams.
B. Maintenance of Fencing and Signage. After initial installation by the Declarant of (i)
split rail fencing and (ii) signage denoting the Restricted Area all in accordance with the
Approved Subdivision Map, the Association shall maintain such fencing and signage in
good condition, and shall repair and replace the same, as needed.
C. Maintenance of Water Quality Basins. The Association shall maintain, clean, repair,
replace and continue the three (3) stormwater quality basins designated on the Approved
Subdivision Map (the “Water Quality Basins”) as necessary to ensure optimum
performance of the Water Quality Basins to design specifications. The Association shall
provide for the annual inspection of the Water Quality Basins by a qualified and licensed
professional to determine the condition and integrity of the Water Quality Basins. The
inspecting professional shall prepare and submit to the City of Saratoga Springs, within
thirty (30) days of each inspection, a written report of the findings including
recommendations for those actions necessary for the continuation of the Water Quality
Basins. The Association shall undertake necessary repairs and replacement of the Water
Quality Basins at the direction of the City of Saratoga Springs or in accordance with the
recommendations of the inspecting professional, provided those recommendations have
been previously approved by the City of Saratoga Springs. The Association shall not
authorize, undertake or permit alteration, abandonment, modification or discontinuation
of the Water Quality Basins except in accordance with written approval from the City of
Saratoga Springs. If ever the City of Saratoga Springs determines that the Association
has failed to maintain the Water Quality Basins in accordance with this Declaration or
has failed to undertake corrective action as specified by the City of Saratoga Springs or
by the inspecting professional, the City of Saratoga Springs is authorized to undertake
such steps as may be reasonably necessary for the preservation, continuation or
maintenance of the Water Quality Basins and the Association shall be responsible for the
repayment of all expenses incurred by the City of Saratoga Springs.
Section 4.06 Other Provisions.
(a) The Declarant hereby grants to the Corps of Engineers, the U.S. Department of
Justice and the City of Saratoga Springs a discretionary right to enforce the terms of
this Declaration in a judicial action against any person or other entity violating or
attempting to violate any of the terms hereof; provided, however, that no violation of
the terms of this Declaration shall result in a forfeiture or reversion of title. In any
enforcement action, an enforcing agency shall be entitled to a complete restoration for
any violation, as well as any other judicial remedy such as civil or criminal penalties
10
or an award of agency attorneys’ fees. Additionally, any Owner shall have the right
to enforce, by any proceeding at law or in equity, the provisions of this Declaration,
against any other Owner who is in violation of the terms hereof.
(b) The Corps of Engineers shall have the right, but not the obligation, to enter and go
upon the Property to take actions necessary to verify compliance with the terms of
this Declaration. The City of Saratoga Springs and its authorized agents shall have
the right, but not the obligation, to enter and go upon the Property at all reasonable
times and with seven (7) days prior notice, absent an emergency, to (a) inspect the
Property to determine and verify compliance with the terms of this Declaration, (b)
monitor the status, condition and location of wetlands and natural resources, (c)
conduct research and development of the natural ecosystem, (d) enforce the terms of
this Declaration and (e) take any and all actions necessary and appropriate to remedy
or abate any violations thereof. As a condition of the City of Saratoga Springs’ right
to access the Property, the City of Saratoga Springs and its authorized agents agree to
hold harmless the Declarant, the Association and Owners for any and all claims of
personal injuries alleged to be sustained while on or inspecting the Property, except
for any such claims arising out of the Declarant, the Association or an Owner’s
negligence.
(c) Declarant shall include the following notice on all deeds, mortgages, plats and other
legal instruments used to convey any interest in the Property (failure to comply with
this paragraph does not impair the validity or enforceability of the terms of this
Declaration):
NOTICE: This Property is Subject to a Declaration of Protective Covenants, Conditions,
Restrictions, Easements, Charges and Liens recorded at [insert book and page
references, county(ies), and date of recording].
Section 4.07 Title to the Lots.
By the delivery and acceptance of the deed to a Home or Lot, the Owner(s) thereof
expressly agree that the Home and/or Lot, is subject to all express or reasonably implied
easements and reservations set forth in this Declaration and the Approved Subdivision Map for
the benefit of other Lot Owners and/or the Association.
ARTICLE V
ASSESSMENTS: ALLOCATION, LIEN AND LIABILITY
Section 5.01 Obligations to Pay Assessments
The Sponsor, for each Unsold Home or Lot owned by it within the Community and
brought under this Declaration, hereby covenants, and each Owner of any Home or Lot brought
under this Declaration whether or not it shall be expressed in any such deed of conveyance,
shall be deemed to covenant and agree, to pay to the Association:
11
(a) Annual Assessments for the maintenance, repair, replacement, improvement and
operation of the Association and its Property, and the other items set forth in Section 5.03
hereof (“Maintenance Assessments”); and
(b) Special Assessments for capital improvements, as more fully set forth in Section
5.06 hereof (“Special Assessments”).
The Maintenance Assessments and the Special Assessments together being referred to
herein as the “Assessments”.
Section 5.02 Determination of and Basis for Assessments
(a) The Board of Directors shall, from time to time, but at least annually, fix and
determine the budget representing the sum or sums necessary and adequate for the continued
operation of the Association and shall send a copy of the budget and any supplement to the
budget to each Member at least thirty (30) days prior to the adoption thereof. The Board shall
determine the total amount required, including the operational items such as insurance, repairs,
reserves, maintenance and other operating expenses, as well as charges to cover any deficits
from prior years and capital improvements approved by the Board. The total annual
requirements and any supplemental requirements shall be allocated among, assessed to, and
paid by the Members as follows: each Member shall for each Home pay a portion of said
requirements, the numerator of which shall be one (1) and the denominator of which shall be
equal to the number of Homes in the Association from time to time.
(b) Notwithstanding the foregoing, the Sponsor’s obligation for such Assessments
on Unsold Homes or Lots subject to this Declaration shall be limited to the difference between
the actual operating costs of the Association, including reserves on the Association Property,
and the Assessments levied on Members who have closed title to their Homes or Lots. In no
event, however, will the Sponsor be required to make a deficiency contribution in an amount
greater than the Sponsor would otherwise be liable for if it were paying Assessments on Unsold
Homes or Lots on the same basis as other Members.
Section 5.03 Purpose of Maintenance Assessments
The purpose of the Maintenance Assessments shall be to satisfy the costs and expenses
of the operation, maintenance, repair, replacement and improvement of the Association and its
Property, and the promotion of the health, safety and welfare of the Members, including but not
limited to the following costs and expenses:
(a) taxes imposed on the Association and its Property, if any;
(b) any utility services to the Property which are commonly metered or billed;
(c) all premiums for liability and other insurance covering the Association Property,
and the Association, its officers, Directors, Members and employees obtained pursuant to the
By-Laws;
12
(d) the maintenance, repair and replacement of the Association Property;
(e) labor, equipment and materials for, and the management and supervision of, the
Association and its Property;
(f) accounting and record keeping of all Association financial transactions; and
(g) such other needs as may arise from time to time which the Board of Directors
deems appropriate or desirable to meet.
Section 5.04 Date of Commencement and Notice of Assessments
The Assessments provided for herein shall commence on the day on which title to the
first Home is conveyed by the Sponsor to the initial purchaser thereof. The first assessment
shall be adjusted according to the number of months remaining in the fiscal year as established
by the Board of Directors and such Assessments shall thereafter be on a full year basis.
Section 5.05 Change in the Basis of Assessments
(a) The Association may change the basis of determining the Assessments by
obtaining the vote of not less than two-thirds (2/3rds) of all Members, except that until the
Transfer of Control Date, any change in the Basis of Assessments which adversely affects the
interests or rights of the Sponsor with respect to Unsold Homes shall require the prior written
consent of the Sponsor. Written notice of the proposed change shall be sent to all Members at
least thirty (30) days in advance of the date or initial date set for voting thereon. A written
certification of any such change shall be executed by the Board of Directors and recorded in the
Office of the Clerk of the County of Saratoga, New York.
(b) Any change in the Basis of Assessments shall be equitable and
nondiscriminatory.
Section 5.06 Special Assessments for Capital Improvements
(a) In addition to the Maintenance Assessments, the Association may from time to
time levy Special Assessments, payable in the year levied and/or the following year only, for
the purpose of defraying, in whole or in part, the cost of any capital improvements, including
without limitation, the construction, reconstruction, replacement, or repair of a capital nature to
the Association Property, including the necessary fixtures and personal property related thereto;
provided that for any Special Assessment for the construction (rather than reconstruction or
replacement) of any capital improvement and for any Special Assessment amounting to more
that one hundred percent (100%) of the then current amount of Maintenance Assessments, the
consent of at least two-thirds (2/3rds) of the Members who are present in person or represented
by proxy at a meeting duly called for such purpose must first be obtained.
(b) Written notice of such vote shall be given to all Members at least thirty (30) days
in advance setting forth the purpose of the meeting. The Association shall establish one or more
due dates for each payment or partial payment of each Special Assessment and shall notify each
Member liable therefor in writing at least thirty (30) days prior to such due date or dates.
13
Section 5.07 Assessments: Personal Obligations of the Member and Lien on Home
(a) The Assessment shall be paid when due. If the Assessments are not paid within
ten (10) days of the date when due, the Board of Directors may impose a late charge in such
amount the Board shall deem reasonable (not to exceed ten percent (10%) of the amount past
due or the maximum amount allowed by law, whichever is less) provided such late charges are
equitably and uniformly applied. All sums assessed by the Board of Directors but unpaid,
together with any accelerated installments, late charges and Assessments for violations of the
Rules and Regulations with interest hereon at such rate as may be fixed by the Board of
Directors, from time to time (such rate not exceed the lesser of sixteen percent (16%) or the
maximum rate of interest then permitted by law), shall be the personal obligation of a Member
and shall constitute a lien upon the Member’s Home prior to all other liens except: (1) tax or
assessment liens on the Home by any governmental authority, including but not limited to state,
county, city and school district taxing agencies; and (2) all sums unpaid on any First Mortgage
of record encumbering any Home. Interest on Assessments and other amounts due hereunder
shall begin to accrue on the 10th day after the date on which such Assessments or other amounts
were due.
(b) Assessments shall be levied on an annual basis and shall be due and payable in
monthly installments, each to be paid within ten (10) days of its due date. Payments received
after ten days after the due date may be assessed a late fee. If the Assessment is not paid within
thirty (30) days from date due, the Board of Directors may commence appropriate legal
proceedings, including a foreclosure action. All costs and expenses incurred in collection of
past due Assessments, including reasonable attorneys’ fees, shall also be the personal obligation
of the Member and a lien against the Home.
(c) Any amounts collected with respect to past due Assessments shall be applied in
the following order: attorney’s fees, other costs of collection, interest, late charges and the
balance, if any, to the Assessments in inverse order of their due dates.
Section 5.08 Foreclosure of Lien for Past Due Assessments
The lien for past due Assessments may be foreclosed by the Association in accordance
with the laws of the State of New York, in like manner as a mortgage on real property. The
Association shall also have the right to recover all costs incurred by it in pursuing such right
including reasonable attorneys’ fees. Assessments and costs incurred by the Association,
including reasonable attorneys’ fees, shall constitute a lien against the Home. In any such
foreclosure action the Home Owner shall be required to pay a reasonable rental for the Home
for any period prior to sale pursuant to judgment of foreclosure and sale, and the plaintiff in
such foreclosure shall be entitled to the appointment of a receiver to collect the same. In the
event the proceeds of the foreclosure sale are not sufficient to pay such unpaid Assessments, the
unpaid balance shall continue to be the personal obligation of the Home Owner. However,
where a First Mortgagee of record, or other purchaser of a Home at a foreclosure sale of a First
Mortgage, obtains title to the Home as a result of foreclosure, such acquirer of title, its
successors or assigns, shall not be liable for, and the Home shall not be subject to, a lien for the
payment of Assessments chargeable to such Home which were assessed and became due prior
to the acquisition of title to such Home by such acquirer. In such event, the unpaid balance of
Assessments shall be charged equally to all other Home Owners. A suit to obtain a money
14
judgment for past due Assessments may be maintained without foreclosing or waiving of the
lien securing the same.
Section 5.09 Notice of Default
The Board of Directors, when giving notice to a Member of a default in paying
Assessments or any other default, may, at its option, or shall, at the request of a First
Mortgagee, send a copy of such notice to the First Mortgagee of such Home. The First
Mortgagee shall have the right to cure the Member’s default with respect to the payment of said
Assessments or other default which could result in the creation of a lien against the Home.
Section 5.10 No Exemption or Waiver of Assessments
Every Member shall pay the Assessments assessed against his Home when due and no
Member may exempt himself from liability for the payment of Assessments by waiver of the
use or enjoyment of any of the Association Property or by the abandonment of his Home.
However, no Member shall be liable for the payment of any Assessments accruing subsequent
to a sale, transfer or other conveyance by him of such Home made in accordance with the Real
Property Law or in accordance with the provisions of this Declaration and the By-Laws.
Section 5.11 Grantee to be Liable with Grantor for Unpaid Assessments
In any conveyance of a Home either by voluntary instrument, operation of law or
judicial proceeding in accordance with this Declaration or the By-Laws, the Grantee of the
Home shall be jointly and severally liable with the Grantor for any unpaid Assessments against
the latter, assessed and due up to the time of the grant or conveyance without prejudice to the
Grantee’s right to indemnification from the Grantor therefor. “Grantee” as used herein shall not
include either a First Mortgagee or a purchaser of a Home at a foreclosure sale of a First
Mortgage or a Person who obtains title to a Home by means of a deed in lieu of foreclosure.
Section 5.12 Right to Maintain Surplus
The Association shall not be obligated in any calendar year to spend all the sums
collected by it in such year by way of Assessments or otherwise, and may carry forward as
surplus any balances remaining; nor shall the Association by obligated to apply any such
surpluses to the reduction of the amount of the Assessments in the succeeding year, but may
carry forward from year to year such surplus as the Board of Directors, in its absolute
discretion, may determine to be desirable for the greater financial security and the more efficient
effectuation of the purposes of the Association.
Section 5.13 Assessment Certificates
Upon written request of a Member or lessee with respect to a Home which he owns or
leases, (or any prospective purchaser, lessee, occupant, mortgagee or title insurer of such
Home), the Association shall, within a reasonable period of time, issue and furnish a certificate
signed by an officer or designee of the Association setting forth with respect to such Home as of
the date of such certificate (a) whether the Assessments, if any, have been paid, (b) the amount
of such Assessments, including interest and costs, if any, due and payable as of such date, and
(c) whether any other amounts or charges are owing to the Association (e.g. for the cost of
extinguishing a violation of this Declaration, the By-Laws or the Rules and Regulations). A
reasonable charge, as determined by the Board of Directors, may be made for the issuance of
15
such certificates. Any such certificate, when duly issued as herein provided, shall be conclusive
and binding with regard to any matter therein stated as between the Association and any bona
fide purchaser, lessee, mortgagee, or title insurer of the Home with respect to which such
certificate has been issued.
ARTICLE VI
MAINTENANCE BY THE ASSOCIATION
Section 6.01 Repairs and Maintenance by the Association
(a) Except as specifically otherwise provided in this Section 6.01, all operation,
maintenance, repairs, and replacements of Association Property, including, without limitation,
any Association Property situate on the Lots or any property dedicated to the City of Saratoga
Springs pursuant to easement, shall be the responsibility of, and shall be undertaken at the cost
and expense of the Association.
(b) Subject to the provisions of Section 6.02 hereof, the cost of all maintenance,
repair or replacement of Association Property performed by the Association shall, to the extent
not covered by insurance, be funded by and through Assessments.
(c) The Board of Directors may, by resolution, expand or contract the scope of
services to be performed for the benefit of the Lots as described above provided such proposed
expansion or contraction of the scope of services is first approved by a two-thirds majority of all
Owners voting in person or by proxy at a meeting of the Owners., and in such case the
Maintenance Assessments for the Lots shall be adjusted to reflect such changes in the scope of
services provided for the benefit of the Lot Owners.
Section 6.02 Repairs and Maintenance Which Are Not the Responsibility of the Association
(a) Except as otherwise provided in Section 6.01 above, the Association shall not be
responsible for the maintenance, repair or replacement of any structures or landscaped areas for
which the Association does not have a maintenance easement.
(b) Any repair or replacement made to the Association Property pursuant to Section
6.01 above, but which is occasioned by a negligent or willful act or omission of a Member or
the Sponsor shall be made at the cost and expense of such Member or the Sponsor, as the case
may be. If such maintenance, repair or replacement is performed by the Association, it shall not
be regarded as a common expense but shall rather be considered a special expense allocable to
the Member’s Home. Such expense shall be added to that Member’s Assessment and, as part of
that Assessment, shall constitute a lien on the Home to secure the payment thereof.
Section 6.03 Alterations, Additions or Improvements to the Association Property
Except as otherwise provided in this Declaration, including Section 5.06 relating to
Special Assessments for capital improvements, or in the By-Laws, all necessary or desirable
alterations, additions or improvements in or to any of the Association Property shall be made by
the Board of Directors, and the cost and expense thereof shall constitute an Association
expense.
16
ARTICLE VII
INSURANCE AND RECONSTRUCTION
Section 7.01 Insurance to be Carried by the Association.
The Board shall obtain and maintain the following types of insurance coverage: (a)
general liability insurance; (b) Director's and Officers' liability insurance; (c) fidelity bond;
and (d) workers' compensation insurance (when, as and if required by law). To the extent
determined by the Board to be obtainable at a reasonable cost, the coverages shall be as
follows:
(a ) General Liability. The liability insurance shall cover the Association, the
Directors and officers of the Association and all Owners, but not the liability of the Owners
arising from occurrences from such Owner's Home or on such Owner's Lot. The policy shall
include the following endorsements:
(1) comprehensive general liability (including libel, slander, false arrest and
invasion of privacy);
(2) personal injury (including death);
(3) medical payments;
(4) cross-liability under which the rights of a named insured under the policy
shall not be prejudiced with respect to such insured's action against
another named insured;
(5) "severability of interest" precluding the insurer from denying coverage to
any Owner because of negligent acts of the Association or any other
Owner;
(6) contractual liability;
(7) water damage liability;
(8) hired and non-owned vehicle coverage;
(9) liability for the property of others;
(10) host liquor liability coverage with respect to events sponsored by the
Association; and
(11) deletion of the normal products exclusion with respect to events sponsored
by the Association.
17
Until the first meeting of the Board elected by the Owners, this public liability
insurance shall be in a combined single limit of at least $2,000,000 covering all claims for
bodily injury and property damage arising out of a single occurrence.
(b) Directors' and Officers' Liability.
(1) The Directors' and Officers' liability insurance shall cover the "wrongful"
acts of a director or officer of the Association. The policy shall be on a
"claims made" basis so as to cover all prior officers and members of the
Board and any deductible provisions shall apply only to each occurrence,
and not to each item of damage. Until the first meeting of the Board elected
by the Owners, the coverage shall be in a combined single limit of at least
$2,000,000.
(2) Notwithstanding anything in this Declaration to the contrary, until the
Transfer of Control Date, Directors' and Officers' liability insurance shall
be obtained only with the prior written consent of the Sponsor.
(c) Fidelity Bond.
(1) The fidelity bond shall cover all directors, officers and employees of the
Association, if any, who handle Association funds. The bond shall name
the Association as Obligee and be in an amount not less than the estimated
maximum of funds, including reserves, in the custody of the Association at
any given time, but in no event less than a sum equal to six months
aggregate assessments on all Homes, plus the reserves and other funds on
hand. In the event a professional property manager is employed or
retained by the Association, such professional property manager, serving
the Association under a contract (not as an employee of the Association)
shall maintain a fidelity bond in the same amounts as herein required to be
held by the Association, naming the Association as Obligee, and provide
the Board with a certificate evidencing such coverage. The professional
property manager, if named as an employee of the Association, shall then
be added to the Association's bond.
(2) Until the first meeting of the Board elected by the Owners, the coverage
shall be $50,000 for dishonest acts and $50,000 for forgery.
(d) Workers' Compensation. Workers' compensation insurance shall be obtained
when, as and if required by law. Such insurance shall cover employees of
the Association, if any, as well as any other person working on behalf of the
Association, including the directors and officers of the Board.
(e ) Other. The Board may also obtain such other insurance as it shall deem
necessary or desirable from time to time, including additional "umbrella"
18
coverage.
The Board shall not be liable for failure to obtain any of the coverages required by this
Article X or for any loss or damage resulting from such failure.
The deductible, if any, on any insurance policy purchased by the Board may be an
Assessment. The Board of the Association may assess any deductible amount necessitated by the
gross negligence or malicious act of an Owner against such Owner. The Association may pay the
deductible portion for which such Owner is responsible, and the amount so paid, together with
interest and costs of collection (including attorney's fees), shall be a charge and continuing lien
upon the Home involved, shall constitute a personal obligation of such Owner and shall be
collectible in the same manner as Assessments under Article V of this Declaration.
The Board shall review all insurance policies and the coverage provided thereby at least
annually to assure adequacy of coverage.
Section 7.02. Restoration or Reconstruction After Fire or Other Casualty.
In the event of damage to or destruction of any Association Property, insurance
proceeds, if any, shall be payable to the Association. The Board shall be responsible for the
disbursement of the proceeds to contractors engaged in the repair and restoration of such
Association Property. Any cost of such repair and restoration in excess of the insurance
proceeds shall constitute an Assessment and the Board shall assess all the Owners for such
deficit.
Section 7.03. Insurance To Be Carried By Owners.
Each Owner shall, at such Owner's expense, obtain and maintain home owners
insurance covering the full replacement cost of the Home, and liability insurance initially in the
amount of not less than $500,000 per occurrence and $1,000,000 in the aggregate (with a
deductible of no more than $2,500) for occurrences which result in personal injury
(including death) or property damage. The Board may, from time to time, increase the
minimum amount of insurance required to be maintained by Owners. Each Owner shall
provide the Association with evidence of such coverages upon the anniversary of such policy,
if requested in writing by the Board.
Section 7.04. Actions Which May Increase Insurance Rates Prohibited.
Under no circumstances shall an Owner permit or suffer anything to be done or left in
such Owner's Home or omit to do anything which will increase insurance rates on Association
Property or any other Owner's Home. The penalty for any and all violations shall be an
Assessment against the Owner violating this provision in an amount equal to the increased rate
and/or increased premiums.
19
ARTICLE VIII
DURATION, ENFORCEMENT AND AMENDMENT OF DECLARATION
Section 8.01 Duration
This Declaration shall continue until such time as withdrawal of the Property from the
provisions of this Declaration is authorized by an affirmative vote of Owners by at least eighty
percent (80%) of Authorized Votes. No such vote shall be effective without written consent of
at least fifty one percent (51%) of the holders of first mortgages on the Homes, if any. The
Sponsor will not vote its interests appurtenant to Unsold Homes or Lots for such withdrawal
unless at least eighty percent (80%) of all other Owners so elect for such withdrawal, at which
time Sponsor may vote as it sees fit. Notwithstanding the foregoing, withdrawal of the Property
from the provisions of this Declaration shall require the prior approval of the City of Saratoga
Springs.
Section 8.02 All Owners, Tenants and Occupants Are Subject to Declaration
which Runs with the Land
All present or future Owners, tenants, occupants, or any other Person that might use the
Lots, Homes or the Association Property, in any manner, are subject to the provisions of this
Declaration, the By-Laws, and the Rules and Regulations, as they may be amended from time to
time. The acceptance of a deed or conveyance or the entering into of a lease, or the occupancy
of any Lot or Home shall, without more, signify that the provisions of this Declaration, the By-
Laws and Rules and Regulations are accepted and ratified by such Owner, tenant or occupant.
All provisions of this Declaration shall be deemed and taken to be covenants running with the
land and shall bind any Person having at any time any interest or estate in the Homes or Lots, as
though such provisions were recited and stipulated at length in each and every deed or
conveyance or lease thereof.
Section 8.03 Abatement
(a) In the event that any Owner shall violate or breach any of the provisions of this
Declaration, the Rules and Regulations, or the By-Laws on his part to be observed or
performed, the Board of Directors shall enjoin, abate or remedy the continuance or repetition of
any such violation or breach by appropriate proceedings or by self-help provided no breach of
the peace is reasonably anticipated.
(b) The violation or breach of any of the terms of this Declaration, the Rules and
Regulations, or the By-Laws with respect to any of the rights, easements, privileges or licenses
granted to the Sponsor shall give to the Sponsor the right to enjoin, abate or remedy the
continuance or repetition of any such violation or breach by appropriate proceedings.
Section 8.04 Rules and Regulations
In addition to the restrictions set forth herein and in the By-Laws, Rules and Regulations
concerning the use of the Lots, Homes and the Association Property may be promulgated and
amended from time to time by the Board of Directors provided that copies of such Rules and
Regulations are mailed or delivered to each Owner not less than five (5) days prior to the time
that they become effective. Any Rule or Regulation may be rescinded by vote of a majority of
the Owners at a meeting duly called for such purpose. Notwithstanding any of the foregoing,
20
no Rule or Regulation may be implemented which shall serve to negate or modify any of the
provisions contained in Section 4.05 of this Declaration without complying with all
requirements necessary to amend this Declaration as set forth in Section 8.09 hereof.
Section 8.05 Enforceability, Penalties and Fines
(a) The provisions of this Declaration shall bind all lands brought under the scope
hereof and all Members and their Lots and Homes, and shall be construed as running with the
land and shall inure to the benefit of and be enforceable by the Sponsor and the Association
(being hereby deemed the agent for all of its Members), and by any Member, their respective
legal representatives, heirs, successors and assigns, by actions at law or by suits in equity. As it
may be impossible to measure monetarily the damages which may accrue to the beneficiaries
hereof by reason of a violation of this Declaration, any beneficiary hereof shall be entitled to
relief by way of injunction or specific performance, as well as any other relief available at law
or in equity, to enforce the provisions hereof.
(b) In the interest of public health, safety and welfare, the City of Saratoga Springs
(including, but not limited to, the City Attorney, the Planning Board, Zoning, Code
Enforcement, Zoning Department, or the Building Department) shall have the right, but not the
obligation, to enforce the provisions of this Declaration which relate to the use, maintenance,
and repair obligations of the Association and all restrictions contained herein, in the event that
the Association, after demand by the City of Saratoga Springs, fails or refuses to enforce any
provision of this Declaration with respect to the foregoing matters within the time limit required
by the City’s demand. The City of Saratoga Springs shall be entitled to an award of its
reasonable attorneys’ fees in the event of enforcement action, and in such event the City shall
have the right to file a notice of lien against the responsible Lot Owner(s) and to enforce the lien
in the same manner prescribed in Article V for the Association. The rights of the City of
Saratoga Springs granted herein are in addition to the rights granted to the Corps of Engineers,
the U.S. Department of Justice and the City of Saratoga Springs in Section 4.05 of this
Declaration.
(c) In addition or as an alternative to an action at law or suit in equity, the Board of
Directors may, with respect to any violation of this Declaration, the By-Laws or the Rules and
Regulations of the Association, and after affording the alleged violator a reasonable opportunity
to appear and be heard, establish monetary and non-monetary penalties, the amount and/or
severity of which shall be reasonably related to the violation and to the aim of deterring similar
future violations by the same or any other Person. Monetary penalties imposed against a
Member or occupant of a Member’s Home shall be deemed an Assessment against the Home of
such Member and, as such, shall be a charge and continuing lien upon such Home or Lot, shall
constitute a personal obligation of the Member and shall be collectible in the same manner as
Assessments under Article V of this Declaration.
Section 8.06 No Waiver by Failure to Enforce
The failure of any beneficiary hereof to enforce any provision of this Declaration shall in
no event be construed as a waiver of the right by that beneficiary or any other beneficiary to do
so thereafter, as to the same or a similar violation occurring prior or subsequent thereto
21
Section 8.07 Obligation and Lien for Cost of Enforcement by Association
If the Association or the City of Saratoga Springs successfully brings an action to
extinguish a violation or otherwise enforce the provisions of this Declaration, the By-Laws, or
the Rules and Regulations, the costs of such action, including reasonable attorney’s fees, shall
become a binding, personal obligation of the violator. In addition, if the Association or the City
of Saratoga Springs incurs any legal fees in compelling a violator to comply with the provisions
of the Declaration, the By-Laws, or the Rules and Regulations but such compliance is achieved
without commencing an action, such violator shall nevertheless be responsible for the payment
of the Association’s or the City of Saratoga Springs’ reasonable attorneys’ fees as part of the
costs of enforcement as herein provided. If such violator is (a) a Member, or (b) any family
member, tenant, guest or invitee of the Member, or (c) a family member of any guest or invitee
of the tenant of the Member, or (d) a guest or invitee of (1) any member of such Member’s
family or (2) any family member of the tenant or such Member, such cost shall also be a lien
upon the Home owned by the Member.
Section 8.08 Self-Help Abatement
In addition to commencing a legal or equitable action to compel compliance or enjoin
any violation of any provision of the Declaration, the By-Laws or the Rules and Regulations,
the Association may abate any violation by self-help provided that no breach of the peace is
reasonably anticipated to occur by reason of such self-help abatement.
Section 8.09 Amendment
(a) Subject to Subparagraphs (b), (c), (d) and (e) of this Section, this Declaration
may be modified, altered or amended at any duly called meeting of Members provided that:
(1) A notice of the meeting containing a full statement of the proposed
modification, alteration or amendment has been sent to all the Members as listed on the books
and records of action, no less than thirty (30) days nor more than fifty (50) days prior to the date
of the meeting; and
(2) Sixty-six and two-thirds percent (66 2/3%) or more of all Members
approve the change; and
(3) An instrument evidencing the modification, alteration or amendment is
duly recorded in the Office of the Clerk of Saratoga County, New York. Such instrument need
not contain the written consent of the required number of Members, but shall contain a
certification by the Board of Directors of the Association that the consents required by this
Section for such modification, alteration or amendment have been received and filed with the
Board of Directors.
(4) The provisions of Section 4.05, Wetlands Protection, may not be
amended without the written consent of the City of Saratoga Springs and the amendment of the
subdivision and site plan approvals.
(b) Until the Transfer of Control Date, the prior written consent of the Sponsor shall be
required for any modification, alteration or amendment which adversely affects a substantial
interest or right of the Sponsor to become effective.
22
(c) Notwithstanding anything herein to the contrary, the Sponsor may, prior to the sale
of the first Home and subject to the requirement that any changes to Section 4.05, Wetlands
Protection, shall require the written consent of the City of Saratoga Springs, unilaterally (and
without the consent of any Members or any other Person) modify, alter, amend or supplement
this Declaration by recording in the Office of the Clerk of Saratoga County, New York an
instrument containing such modification, alteration, amendment or supplement and executed by
the Sponsor. Such instrument shall also recite that as of the date of the instrument there are no
Owners in the Association other than the Sponsor.
(d) Subject to the requirement that any changes to Section 4.05 of this Declaration shall
require the written consent of the City of Saratoga Springs, the Sponsor hereby reserves the
right, until the Transfer of Control Date, to amend and supplement this Declaration from time to
time in any or all respects, without obtaining the consent of any Owner, the Association,
Mortgagee, First Mortgagee, or any other party; provided, however, in such event no
substantive provision shall be changed which will adversely affect the priority or validity of any
lien upon or the value of any Home. Further, subject to the requirement that any changes to
Section 4.05 of this Declaration shall require the written consent of the City of Saratoga
Springs, Sponsor hereby reserves the right to execute on behalf of all Purchasers, Owners,
Mortgagees, First Mortgagees, or parties claiming a legal or equitable interest in the Property,
any agreements, documents or amendments or supplements to this Declaration, the Certificate
of Incorporation or the By-Laws of the Association or to any other agreements or documents
contemplated thereby, which may be required by any First Mortgagee, by any governmental
agency having jurisdiction over the Property or by any title insurance company insuring any
title to any Home(s). By acceptance of a deed to any Home or by the acceptance of any other
legal or equitable interest in the Property, each and every Purchaser, Owner or occupant,
Mortgagee, other lienor, does automatically and irrevocably name, constitute, appoint and
confirm Sponsor, its successors and assigns, as attorney-in-fact for the purpose of executing any
amended or supplemental Declaration(s) or other instrument(s) necessary to effect the foregoing
(provided that such power of attorney may not be used to adversely affect the priority or validity
of any lien upon or the value of any Home). The powers of attorney aforesaid are expressly
declared and acknowledged to be coupled with an interest in the subject matter hereof and the
same shall run with the title to any and all Homes and be binding upon the heirs, personal
representatives, successor and assigns of any of the foregoing parties. Further, said powers of
attorney shall not be affected by the death or disability of any principal and are intended to
deliver all right, title and interest of the principal in and to said powers.
(e) If any modification, alteration, amendment or supplement is necessary in the
judgment of the Board of Directors or the Sponsor to cure any ambiguity or to correct or
supplement any provision of this Declaration that is defective, missing or inconsistent with any
other provisions hereof, or if such modification, alteration, amendment or supplement is
necessary to conform to the requirements of applicable law, then at any time and from time to
time the Board of Directors may effect an appropriate corrective amendment without the
approval of the Owners upon receipt by the Board of an opinion from counsel to the effect that
the proposed amendment is permitted by the terms of this paragraph. Each amendment of the
23
type described in this paragraph shall recite that it is being made in accordance with this
paragraph.
Section 8.10 Conflict with Municipal Laws
This Declaration shall not be taken as permitting any action or thing prohibited by the
applicable zoning laws, or the laws, ordinances, rules or regulations of any governmental
authority, or by specific restrictions imposed by any deed or lease.
Section 8.11 Attorney’s Fees Assessments
Any party to a proceeding who succeeds in enforcing any covenant, condition or
restriction or enjoining the violation of a covenant, condition or restriction against a Member (or
such Member’s family member(s), tenant, lessee, licensee or invitee), shall be entitled to
reasonable attorney’s fees Assessments against such Member.
Section 8.12 Change of Conditions
No change of conditions or circumstances shall operate to amend any of the provisions
of this Declaration, and the same may be amended only in the manner provided herein.
ARTICLE IX
SELLING, MORTGAGING AND LEASING OF LOTS
Section 9.01 Selling, Leasing and Mortgaging of Homes
No Owner shall convey, mortgage, pledge or lease his Home unless and until all due and
unpaid Assessments against his Home and any penalties and interest thereon shall have been
paid to the Board of Directors. However, such unpaid Assessments may be paid out of the
proceeds of the sale of a Home or by the Grantee.
The provisions of this Section shall not apply to the acquisition, sale or lease of a Home
by a mortgagee, mortgage insurer, mortgage guarantor or similar institution, who shall acquire
title to such Home by foreclosure or by deed in lieu of foreclosure. Such provisions shall apply,
however, to any purchaser from such mortgagee.
Section 9.02 Book of First Mortgagees
The Board of Directors shall maintain a book entitled “Book of First
Mortgagees” in which shall be listed the name and address of First Mortgagees who
have requested in writing to receive notices of any proposed amendments to this
Declaration or of any monetary or other defaults by an Owner whose House or Lot is
subject to the mortgage lien held by such First Mortgagee
Section 9.03 No Severance of Ownership
No Owner shall execute any deed, mortgage or other instrument conveying or
encumbering title to such Owner’s Home or Lot without including the appurtenant Membership
interest, it being the intention hereof to prevent severance of the membership in the Association
24
from the Home or Lot. Any such deed, mortgage or other instrument purporting to affect one or
more of such interests, without including all such interests, shall be deemed to include the
interest or interests so omitted, even though the latter shall not be expressly mentioned or
described. No part of the appurtenant interest in the Association of any Lot or Home may be
sold, transferred or otherwise disposed of, except as part of a sale, transfer or other disposition
of the Home or Lot to which such interests are appurtenant, or as part of a sale, transfer or other
disposition of such part of the appurtenant interest in the Association of all Homes or Lots.
Section 9.04 Member Responsible for Tenants
Any lease of a Home shall provide that the tenant shall comply in all respects with the
terms of this Declaration, the By-Laws and Rules and Regulations, if any, of the Association. If
a tenant is in violation of this Declaration, the By-Laws or Rules and Regulations, the Board of
Directors shall so notify the Member owning such Home which such tenant occupies, in writing
by certified mail, return receipt requested. If the violation is not cured or eviction proceedings
not commenced by the Member against the tenant within fourteen (14) days after the Member
has received notice of such violation, the Board of Directors may pursue any remedies which it
may have pursuant to the Declaration, including taking steps to have the tenant evicted, and
may assess the cost of the same as a charge against the Member’s Home.
ARTICLE X
GENERAL COVENANTS AND RESTRICTIONS
Section 10.01 Restrictions on Use of Lots
(a) Residential Purposes Only. The Association Property and the Homes shall be
used for residential purposes only. The intent is that each Home shall not be occupied by more
than one family. A single family residence is defined as a single housekeeping unit, operating
on a non-profit, non-commercial basis among its occupants.
(b) Prohibitions: Unless used in connection with the construction or sale of Homes by
the Sponsor, maintenance of the Property, or with the prior written consent of the Board of
Directors, the following shall not be permitted to remain on any portion of the Property or Lots:
1. Tents, shacks, trailers (or similar structures) boats or motorized vehicles used as
a dwelling either temporarily or permanently.
2. Unregistered vehicles.
(c) Maintenance and Care of the Home and Lot. The Homeowner/Lot Owner shall
have the absolute obligation to properly maintain all areas and portions of the Lot and Home,
keeping same free of rubbish and debris and clutter/junk at all times. This shall include lawn
mowing, raking, fall and spring clean-up, and maintaining gardens and beds as to limit weeds.
Use of leaf blowers shall be limited to the owned Lot, with no blowing of leaves or debris onto
the street or onto neighboring properties. Nor shall snow or ice be pushed out onto the street or
diverted toward or onto neighboring properties.
25
(d) Garbage, Trash, Litter. Trash, garbage, grass clippings and other waste shall not
be stored except for disposal and shall be kept in sanitary refuse containers which shall be
placed inside the building, so that same is totally removed from public view of any nature. No
permanent containers shall be stored outside of the home or garage. Sealed containers may be
temporarily placed at curbside for refuse collection, but not for more than twenty-four (24)
hours prior to the collection time and must be removed from curbside after collection by the end
of such day. Recycling containers shall be stored in the same manner as refuse containers.
Section 10.02 Use of the Property
(a) Advertising and Signs. Except for signs erected by or with the permission of the
Sponsor in connection with the initial marketing of Homes, no sign or other advertising device
of any nature shall be placed for display to the public view on any Home, including the garage,
in any window of any Home, on the Lots or other portion of the Property (except that temporary
signs advertising Homes for sale may be displayed at the entrance of the Community, provided,
however, such sign shall not exceed five (5) square feet in area. The Association, in addition to
all other remedies available to it, may remove any sign that is in violation of this Section after
giving the offending Member or other party 48 hours written notice and demand to remove such
sign.
(b) Noxious or Offensive Activities. No noxious or offensive activity shall be
carried out upon any portion of the Property, in any Home, or on any Lot, nor shall anything be
done thereon or therein that may be, or may become, a nuisance or annoyance to other Owners
or occupants.
(c) No temporary structures. No structure of a temporary character such as house
trailers, campers, basements, tents, shacks, tree houses, garages, barns or other outbuildings
shall be stored or kept on any Lot at any time, or used as a residence, either temporarily or
permanently. No satellite dishes, short wave radio antennas or other type of antennas more than
one meter in diameter or as otherwise permitted under the Federal Communications
Commission’s Over-The-Air Reception Devices (“OTARD”) Rule or any successor or amended
rule may be installed or stored on any Lot. No basketball hoops or other recreational equipment
shall be permanently installed, however, moveable basketball backboard and post assemblies
may be used, but when not in actual use must be kept inside the Home or in a garage.
(d) No rubbish or trash. No lot, or any part thereof, shall be used or maintained as a
dumping ground for rubbish or trash. No trash, garbage or other waste materials are to be kept
or stored on any Lot unless kept in sanitary containers not visible from any road or street.
ARTICLE XI
GENERAL
Section 11.01 Headings and Captions
The headings and captions contained in this Declaration are for convenience only and
shall not affect the meaning or interpretation of the content hereof.
26
Section 11.02 Severability
The invalidity of any provision of this Declaration shall not be deemed to impair or
affect in any manner the validity or enforceability of the remainder of this Declaration and, in
the event any provision of this Declaration shall be, or be held to be, invalid or unenforceable,
all of the other provisions of this Declaration shall continue in full force and effect as if such
invalid or unenforceable provision had never been included herein.
Section 11.03 Waiver
No provision contained in this Declaration shall be deemed to have been abrogated or
waived by reason of failure to enforce the same, irrespective of the number of violations or
breaches which may occur.
Section 11.04 Gender: Plural
The use of the masculine gender herein shall be deemed to include the masculine,
feminine or neuter and the use of the singular shall be deemed to include the plural; whenever
the context so requires.
Section 11.05 Notices
All notices hereunder shall be in writing and, unless otherwise expressly provided
herein, shall be sent by mail by depositing same in a post office or letter box maintained by the
United States Postal Service, in a postpaid sealed wrapper, addressed, if to the Board of
Directors, at the office of the Board of Directors, if to a Member or First Mortgagee, to the
address of such Member or First Mortgagee, as to the case may be, at such address as appears
on the books of the Association and if to the Sponsor, to the address of the Sponsor, as appears
on the books of the Association. All notices shall be deemed to have been given when mailed,
except notices of change of address, which shall be deemed to have been given when received.
Whenever any notice is required to be given under the provisions of this Declaration, a waiver
thereof, in writing, signed by the Person entitled to such notice, whether before or after the time
stated therein, shall be deemed the equivalent of such notice.
Section 11.06 Right of Association to Transfer Interest
Notwithstanding any other provision herein to the contrary, the Association, its
successors and assigns shall at all times have the absolute right to fully transfer, convey and
assign all of its right, title and interest in and under this Declaration to any successor not-for-
profit corporation or homeowners’ association, and upon such assignment, the successor
corporation shall have all the rights and be subject to all the duties of the Association as set
forth in this Declaration and shall be deemed to have agreed to be bound by all provisions
hereof, to the same extent as if the successor corporation or trust had been an original party and
all references herein to the Board of Directors shall be deemed to refer to the Board of Directors
of such successor corporation or trust corporation or trust expressly assumes all the duties and
obligations of the Association. If the Association, for any reason, shall cease to exist without
having first assigned its rights hereunder to a successor corporation or trust, the covenants,
conditions, restrictions, easements, charges, and liens imposed hereunder shall, nevertheless,
continue and any Member may petition a court of competent jurisdiction to appointment a
trustee for the purpose of organizing a not-for-profit Association; such corporation to exist
27
subject to the conditions provided for herein with respect to an assignment and delegation to a
successor corporation or trust.
AAADMC VENTURES LLC
By:________________________________
Arthur Curto, Member
State of New York }
} ss.:
County of _________}
On the _________ day of __________ in the year 2026 before me, the undersigned,
personally appeared Steve Cerrone personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his signature on the
instrument, the individual or the person upon behalf of which the individual acted, executed the
instrument.
Notary Public
9049 Bemis Point HOA Declaration - Working Draft CLEAN 6-2-26
28
SCHEDULE A
Perimeter Description of All Lands of Bemis Point Homeowners’ Association, Inc. Made
Subject to This Declaration
21.78± Acre Parcel
All that parcel of land situate in the City of Saratoga Springs, County of Saratoga, State
of New York as shown on a map entitled “_________________________” as prepared by
______________________, and being more particularly bounded and described as follows:
Subject to any easements, restrictions and/or covenants of record, if any.
29
SCHEDULE B
Easement Rights to be Conveyed to Bemis Point Homeowners’ Association, Inc.
Attached Separately