OCR Document

FIFTH AMENDED AND RESTATED DECLARATION AND ESTABLISHMENT OF CONDITIONS, COVENANTS, RESERVATIONS

. AND RESTRICTIONS

AVERY'S FIELDS Planned Residential Development

Township of Cranberry

County of Butler

Commonwealth of Pennsylvania

THIS FIFTH AMENDED AND RESTATED DECLARATION AND ESTABLISHMENT OF CONDITIONS, COVENANTS, RESERVATIONS AND RESTRICTIONS (the "Fifth Amended Declaration") is made this 4th day' of May, 2001, by AVERY'S FIELDS ASSOCIATES, a Pennsylvania limited partnership. This Fifth Amended Declaration amends and supersedes that certain First Amended Declaration and Establishment of Conditions, Covenants, Reservations and Restrictions of Avery's Fields Planned Residential Development dated August 11, 1993, as recorded on August 24, 1993, in the Office of the Recorder of Deeds of Butler County, Pennsylvania, at Record Book Volume 2350, page 233 (the "First Amended Declaration"), as amended by the Second Amendment' to Declaration and Establishment of Conditions, Covenants, Reservations and Restrictions dated November 24, 1993, and recorded on November 26, 1993, in the Office of the Recorder of Deeds of Butler County, Pennsylvania, at Record Book Volume 2380, page 870 (the "Second Amendment"), and as further amended by the Third Amendment to Declaration and Establishment of Conditions, Covenants, Reservations and Restrictions dated December 8, 1993, and recorded on December 28, 1993, in the Office of the Recorder of Deeds of Butler County, Pennsylvania, at Record Book Volume 2391, page 16 (the "Third Amendment”), and as further amended by the Fourth Amendment to Declaration and Establishment of Conditions, Covenants, Reservations and Restrictions dated December 4, 1995, and recorded on January 8, 1996, in the Office of the Recorder of Deeds of Butler County, Pennsylvania, at Record Book Volume 2590, page 709 (the "Fourth Amendment"). This Fifth Amended Declaration is made pursuant to Section 14.3 of the aforesaid First Amended Declaration. Pursuant to this Fifth Amended Declaration, the aforementioned First Amended Declaration, as amended by the Second Amendment, the Third Amendment; and the Fourth Amendment, respectively, is hereby declared null and void and of no effect, except to the extent that the same may be necessary to be referred to for purposes of clarifying the filing of this Fifth Amended Declaration.

(j) "Lot Owner" means the owner in fee simple of any Lot, but shall not include the Declarant, any builder taking title to any Lot or any person or persons purchasing a Lot under contract (until such contract is fully performed and legal title conveyed of record).

(k) "Common Expenses" means the expense of owning and maintaining

the Open Spaces, including, but not limited to, any applicable taxes attributable to same, drainage and storm water detention facilities within or appurtenant to the Real Estate, and or providing all common community services required or desired for the' general use and benefit of all Lot Owners. . .

ARTICLE 3

EASEMENTS

Section 3.1 Easements. Declarant hereby creates the following easements:

. (a) Easement for Sales Offices. Manaqement Offices and Models.

Declarant shall have the right to maintain sales offices, management offices and models on the Real Estate and to relocate such models, management offices and sales offices from time to time anywhere on the Real Estate. Declarant reserves the right to place models, management offices and sales offices on any portion of the Open Spaces in such manlier, of such size and in such locations as Declarant deems appropriate. Declarant may from time to time relocate models, management offices and sales offices to different locations within the Real Estate. Upon the relocation of a model, management office or sales office on the Open Spaces, Declarant may remove all personal property and fixtures therefrom.

(b) Easement for Advertisinq Siqns. Declarant shall have the right to maintain on the Real Estate such advertising signs as Declarant in its sale discretion may deem appropriate, provided that such signs comply with applicable governmental requirements. Declarant may from time to time relocate such advertising signs.

Section 3.2 Utility Easements. The Real .Estate shall be, and hereby is, made subject to easements in favor of the Declarant, appropriate utility and service companies and governmental agencies or authorities for such utility and service lines and equipment as may be necessary or desirable to serve any portion of the Real Estate. The easements created in this Section 3.2 shall include, without limitation, rights of the Declarant, and any appropriate utility or service company or any governmental agency or authority, to install, lay, maintain, repair, relocate and replace gas lines, pipes and conduits, water mains and pipes, sewer and drain lines, telephone wires and equipment, television equipment and facilities (cable or otherwise), electric wires, conduits and equipment and ducts and vents' over, under, through, along and on the Lots, street rights-of-way and Open Spaces. Notwithstanding the foregoing provision of this Section 3.2, unless approved in writing by the Lot Owner or Lot Owners affected thereby, any such easement through a Lot

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shall be located in substantially the same location as such facilities or similar facilities existed at the time of first conveyance of .the Lot by the Declarant, or as shown on the Plans, or so as not to materially interfere with the use or occupancy of the Lot or any Building by its occupants.

Section 3.3 Easement for Access to Real Estate. Declarant reserves a nonexclusive perpetual right of access and easement on, over and under those portions of the Open Spaces for the purpose of pedestrian and vehicular ingress, egress and regress to all or any part of the Real Estate, including the right to modify the location of improvements to the Open Spaces to facilitate such ingre$s, egress and regress, including without limitation the removal of obstructions to the exercise of such rights of ingress, egress and regress, and the grading or regrading of landscaped areas of the Open Spaces.

Section 3.4 Declarant's Easement to Correct Drainage. Declarant reserves an easement on, over and under those portions of the Open Spaces for the purpose of maintaining and correcting drainage .of surface water in order to maintain a reasonable standard of health, safety and appearance. The easement created by this Section 3.4 expressly includes the right to cut any trees, bushes or shrubbery, to grade the soil, or to take any other action reasonably necessary to achieve this purpose, following which the Declarant shall restore the affected property as closely to its original condition as possible.

Section 3.5 Declarant's Easement for Development of Real Estate.

Declarant reserves an easement on, over and under those portions of the. Open Spaces for all purposes relating to the construction, development, leasing and sale of improvements on the Real Estate. This easement shall include without limitation, the right of vehicular and pedestrian ingress and egress, the right to park motor vehicles and to engage in construction and marketing activities of any nature whatsoever, including the movement and storage of building materials and equipment, the conduct of sales, leasing and management activities, the maintenance of models and offices and the erection and maintenance of directions and promotional signs.

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Section 3.6 Termination of Easements. The easements created by Sections 3.1, 3.3, 3.4 and 3.5 hereof shall terminate upon the conveyance of all Of the Lots on the Plans embracing, all of the Real Estate to the ultimate Lot Owners (i.e., excluding any conveyances to builders).

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Section 3.7 Easement for Use of Common Spaces.

(a) Grant of Easement. Each Lot Owner and each person lawfully residing on the Real Estate is hereby granted a non-exclusive perpetual right and easement of access to and enjoyment in common with others of the Open Spaces.

(b) Extent of Easement. The rights and easements of access and

enjoyment created hereby shall be subject to the right of the Association to adopt rules and regulations governing the use of the Open Spaces.

ARTICLE 4

USE RESTRICTIONS

Section 4.1 Use and Occupancy of Lots & Buildinqs. The occupancy and use of the Lots and Buildings shall be subject to the following restrictions:

(a) Residential Use. No part of the Real Estate shall be used for other than housing and the related common purposes for which the planned residential development was designed. Each Lot or any two or more adjoining Lots used together shall be used as a residence for a single family or such other uses permitted by this Declaration and for no other purposes. If zoning regulations permit professional activities to be conducted within the Lots, application may be made by a Lot Owner to the Declarant for approval to commence such newly permitted use of his Lot. Each such application shall be considered by the Declarant on an individual basis. Once the Declarant has given its approval to a particular use of a Lot, it may not revoke such approval so Iong as the nature and scope of the approved use remains unchanged. No Building or structure intended for or adapted to business purposes, and no apartment house, double house, lodging house, rooming house, hospital, sanatorium or doctor's office, or other multiple-family dwelling shall be erected, placed, permitted, or maintained on such premises, or on any part thereof. No improvement or structure whatever, other than a first class private dwelling house, patio walls, in-ground swimming pool, and customary outbuilding, garage, servants' quarters or guest house may be erected, placed or maintained on any Lot in the Real Estate. No Lot Owner shall permit his Lot to be used or occupied for any prohibited purpose.

(b) Fences. No fences on any Lot may extend beyond the building setback line for any dwelling nor beyond the side lot building line for any dwelling. All fence materials and types and colors of fences must be approved in writing by Declarant before the installation of any fence. Upon prior written approval of the Declarant, a Lot Owner may build a fence in the common area behind the rear lot line of any Lot, provided that such fence shall not extend beyond the perimeter lot lines of any Lot as if extended into the common area.

(c) Commercial Activities. Except as set forth in Subsection (a) above, no industry, business, trade, occupation or profession of any kind, commercial, religious,

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educational, or otherwise, designed for profit, altruism, exploration, or otherwise, shall be conducted, maintained, or permitted on any part of the Real Estate; provided, however, that nothing contained in this Subsection shall be construed to prevent or prohibit a Lot Owner from maintaining his personal professfonal ibrary, keeping his personal business or professional records or accounts, handling his personal business or professional telephone calls or conferring with business or professional associates, clients or customers, in his Lot.

(d) Pets. No animals, livestock, fowl or-poultry of any kind shall be raised, bred or kept on any Lot or in the Open Spaces, except household pets in reasonable numbers for the pleasure and use of the occupants, subject to Rules and Regulations adopted by the Declarant, which Rules or Regulations may exclude any kind of pet by type or category, provided that permitted household pets are not kept; bred or maintained for any commercial purposes; and provided further that any such permitted pet causing or creating a nuisance or unreasonable disturbance shall be permanently removed from any Lot upon ten (10) days' written notice from the Declarant.

(e) Signs. No sign of any character shall be erected, placed, permitted, maintained or displayed upon any Lot except "For Rent" or "For Sale" signs, referring only to the Lot on which displayed, not to exceed six (6) square feet in size, and one sign to a Lot. No sign of any character shall be erected, placed, permitted, maintained or displayed in any Open Space or Common Areas, and any sign placed in violation thereof may be removed by the Declarant or any Lot Owner.

(f) Commercial and Other Vehicles. No commercial vehicles, construction, or like equipment or mobile trailers, stationary trailers, boats, boat trailers, recreational vehicles, motor homes, campers or motorcycles of any kind shall be stored or parked on any Lot in the Real Estate or on the Open Spaces except while parked in a garage completely enclosed, nor parked on any residential street in the Real Estate except while engaged in transporting to or from a residence in the Real Estate. Parking of any type of vehicle shall not be permitted on any street, drive or entranceway located on the Real Estate.

(g) Nuisances. No horses, cattle, swine, goats, poultry or fowl shall be kept on

any Lot. No clotheslines or drying yards shall be permitted unless concealed by hedges, lattice work or screening acceptable to the Declarant. No weeds, underbrush, or other unsightly growths shall be permitted to grow or remain upon any Lot, and no refuse pile or unsightly objects shall be allowed to be placed or suffered to remain anywhere thereon. No Lot shall be used in whole or in part for the storage of rubbish of any character whatsoever; nor for the storage of .any property or thing that will cause such Lot to appear in an unclean or untidy condition or that will be obnoxious to the eye; nor shall any substance, thing, or material be kept upon any Lot that will emit foul or noxious odors, or that will cause any noise that will or might disturb the peace, quiet, comfort or serenity of the occupants of surrounding Lots. In the event that any Lot Owner shall fail or refuse to keep his Lot free from weeds, underbrush, or refuse piles or other unsightly growths or objects, then the Declarant may enter upon such lands and remove the same at the expense of the Lot Owner, which such entry shall not be deemed a trespass, and in the

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event of such a removal a lien shall arise and be created in favor of the Declarant and against such Lot for the full amount chargeable to such Lot and such amount shall be due and payable within thirty (30) days after demand is made therefor.

(h) Obstruction of Easements. No Lot Owner shall do any work or any other act which would impair any easement or hereditament without the consent of the Declarant or Association, whichever may be affected thereby.

(i) Outbuildings: Accessory Structures. No tent, outbuilding, carport, breezeway or satellite dish exceeding twenty-four inches (24") in diameter shall be used, constructed or erected upon any Lots. Any storage shed constructed upon any Lot shall be placed only in the rear yard and shall be approved in writing by and shall be made of a material acceptable to the Declarant but no metal shed shall be approved.

m Drivewav Access. With the exception of Lot 36. driveway access to all Lots shall only be from internal streets situate within the Real Estate and the planned residential development provided for herein. No driveway access to any Lot shall be permitted from any external streets or roadways which are not wholly contained within the Real Estate and the planned residential development.

(k) Any Lots containing delineated wetlands shall have such information clearly mentioned on any and all homeowner's documents, including the individual deed for any such Lot.

(I) Unless determined by Declarant to not be physically or aesthetically feasible or acceptable, every Lot shall have a minimum of two (2) "street trees", which shall be trees in the front of the Lot between the front building line and the sidewalk fronting the Lot (and on the sides as well for street corner Lots). All individuals owning Lots with street trees shall have covenants provided in the individual deeds for such Lots requiring the owner or owners of such Lots to perpetually protect the street trees contained therein and to prohibit the logging or felling of such healthy, live trees therein and requiring the owners to replace any such street trees therein which may die with a tree of identical species, although substitution of a younger tree shall be permitted.

(m) The trees contained in the open spaces and in any landscape buffer shown on the Plan are perpetually protected and the logging or felling of healthy, live trees

thereof is specifically prohibited. The Association shall be responsible for replacing any. trees in any such areas which may die, except in the case of landscape buffers abutting individual Lots, in which case the responsibility for replacement of dead trees shall be that of the individual Lot Owner, as provided herein in Subsection 4.1 (n).

(n) Any individual Lot which includes a landscape buffer as shown on the Plan shall have covenants contained in the deed to such Lot requiring the owner or owners of such Lot(s) to perpetually protect the trees contained therein and prohibit the logging or felling of healthy, Iive trees therein and shall also require the owner or owners to replace any trees therein which may die.

(0) No Lot Owner may install chain link fences on any Lot, except that chain link fences may be installed on the rear lot line of Lots 11, 12. 13. 42, 43 and 44 only.

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(p) No fences may extend beyond the front setback building line for any residence, nor may any fences extend beyond a side lot building line for any Lot adjoining any side streets.

(q) No recreational structures, playground sets, swing sets and the like shall be erected or placed. in any area other than the rear yard of any Lot and must be placed so as not to cross any rear or side setback building lines. On Lot 25, any such structures must be located in the Northwest corner of the Lot. On Lot 35, any such structures must be located on the Northeast corner of the Lot.

Section 4.2 Use of Open Spaces. The use of the Open Spaces shall be subject to the following restrictions:

(a) Obstruction of Open Sbaces. There shall be no obstruction of the Open Spaces nor shall anything be stored in the Open Spaces without the prior consent of the Board of Directors except as herein expressly provided. Without limiting the generality of the foregoing, no clothes, sheets, blankets, laundry or other articles of any kind shall be hung out or exposed on any part of the Open Spaces. The Open Spaces shall be kept free and clear of rubbish, debris and other unsightly materials. No benches, chairs or other personal property shall be left on, nor shall any playing, lounging, parking of baby carriages, playpens, bicycles, wagons, toys or vehicles be permitted on, any part of the Open Spaces without the prior consent of, and subject to any regulations of the Board of Directors.

(b) Encroachments on Open Spaces. No Lot Owner shall make any installation which extends beyond the physical limits of the Lot Owner's Lot into the Open Spaces.

(c) Nuisances. No noxious or offensive activity shall-be carried on in any Lot or in the Open Spaces, nor shall anything be done therein, either willfully or negligently, which may be or become an annoyance or nuisance to the other Lot Owners or occupants, or which interferes with the peaceful possession or proper use of any of the Lots or of the

Open Spaces. . .

(d) Insurance Risk: Compliance with Law Waste. Nothing shall be done or kept in the Open Spaces which will increase the rate of insurance thereon, or contents thereof, without the prior written consent of the Association. No Lot Owner shall permit anything to be done or kept in his Lot nor in the Open Spaces which will violate any law, statute, ordinance or regulation of any governmental body or which will result in the cancellation of any insurance maintained by the Association. No waste shall be committed in the Open Spaces.

(e) Rules and Regulations. Reasonable Rules and Regulations not in conflict with the provisions of this Declaration, concerning the use and enjoyment of the Open Spaces, may be promulgated from time to time by the Association, subject to the right of the Association to change such Rules and Regulations. Copies of the then current Rules and Regulations and amendments thereto shall be furnished to all Lot Owners by the Association promptly after the adoption of such Rules and Regulations or any amendments thereto.

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(f) The Developer shall provide to the Township of Cranberry appropriate, permanent easements which in the Township's discretion are adequate for purposes of access for inspection and/or maintenance to all storm water detention facilities. Said easements shall be established prior to any sales of Lots.

(g) No Lot shall have any vegetation encroaching on the sidewalk abutting any such Lot. Any trees or other vegetation hanging over the sidewalk abutting any Lot must

be trimmed to a height of no less than seven (7) feet. .

Section 4.3 Construction and Occupancy. When the construction of any Building is once begun, work thereon must be prosecuted diligently and must be completed within a reasonable time, and no debris incidental to construction work on one Lot may be placed on any other Lot.

(a) Outbuildinq. No outbuilding, garage, shed, tent, trailer, or temporary Building of any kind shall be erected, constructed, permitted, or maintained prior to commencement of the erection of a residence, as is permitted hereby, and no outbuilding, garage, shed, tent, trailer, basement, or temporary Building shall be used for permanent or temporary residence purposes; provided, however, that this paragraph shall not be deemed or construed to prevent the use of a temporary construction shed during the period of actual

construction of any structure on any Lot in the Real Estate, nor the use of adequate

sanitary toilet facilities for workmen which shall be provided during such construction.

(b) Occupancy of Buildinqs. No Building erected upon any Lot shall be occupied in any manner while.in the course of construction, nor at any time prior to its being fully completed, as herein required. Nor shall any building, when completed, be in any manner occupied until made to comply with the approved plans, the requirements herein, and all other covenants, conditions, reservations, and restrictions herein set forth.

(c) All homes within the Plan shall be part of the Cranberry Township Municipal Sewer and Water Authority Water and Sewage Systems and shall be tapped into said systems that shall flow from the Development to the Authority's sewer system, as per the Development Plan as submitted. No building shall be occupied until said water and sewage systems are installed and operational. All Lot Owners shall be responsible for payment of any and all initial tap-in or other initial hook up fees and costs.

(d) No debris incidental to construction work, whether initial or temporary construction, on one Lot may be placed on another Lot. All debris must be removed by the time of completion of the work to which it is incidental.

(e) Inactive construction equipment or construction vehicles may not be stored in the open where they can be seen from any occupied residence in any phase of the Plan once fifty percent (50%) of the residences in such phase have been occupied. Construction equipment which is in daily use shall not be considered "inactive".

(f) Within one (1) year from issuance of the building permit by Cranberry Township, the house, driveway and all landscaping on the Lot for which the permit was issued shall be completed.

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Section 4.4 Mininq. No derrick or other structure designed for use in boring for oil or natural gas shall be erected, placed or permitted upon any part of the Real Estate, nor shall any oil, natural gas, petroleum, asphaltum, or hydrocarbon products or minerals of any kind be produced or extracted therefrom.

ARTICLE 5 ARCHITECTURAL CONTROL

Section 5.1 Declarant's Riqht to Control Improvements. For the purpose of further insuring the development of the premises as an area of high standards, the Declarant reserves the power to control the Buildings, structures, and other improvements placed on each Lot, as well as to make such exceptions to these covenants, conditions, reservations and restrictions as the Declarant shall deem necessary and proper.

Section 5.2 Minimum Standards. Notwithstanding the foregoing right to approve building plans, the following minimum standards shall apply to Buildings on the Lots in the Real Estate:

(a) No one-story, one and one-half story or two-story or higher Buildings shall be constructed on Lots with a combined total area of less than 2,300 square feet, exclusive of garage, basement and open porches.

(b) The exterior Building materials shall extend to grade level, and no building shall have an unfinished exposed foundation of concrete or concrete block.

(c) All lawns must be either seeded or sodded for the entire front area, both sides and rear of the residence, said seeding or sodding to be done within six (6) months or next immediate growing season after erection of the residence on any Lot, whichever first occurs. All Lots shall be either seeded or sodded for the entire front, both sides and to a minimum distance of thirty (30) feet from the rear of the house; provided, however, the Declarant may approve properly landscaped areas of chips, bark or other similar materials within the areas which would otherwise be seeded or sodded.

(d) All driveways must be paved within one (1) year from occupancy of the

Building with concrete. Off-driveway parking pads or areas are prohibited.

(e) The owner of any Lot on which a Building has been constructed shall erect, install and maintain, at a location thereon designated by the Developer, (i) a post and lamp, and (ii) a post and mailbox, all being of a kind and type designated by the Declarant.

(f) The owner of any Lot on which a Building has been constructed shall also

construct a sidewalk parallel to the curb of the street(s) bounding said Lot, the edge of which sidewalk shall be three feet (3') from the edge of the curb, and which sidewalk shall be four feet (4') in width, four inches (4") thick, constructed of poured, untainted concrete, broom finished with smooth edges.

(g) All Buildings shall have integral or attached garage with side, front or rear

entrances, unless otherwise approved by the Declarant.

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(h) All dwellings must have first floor and roof overhangs. All first floor and roof

overhangs must extend no less than eight inches (8") from the face of any dwelling.

(i) Any material other than brick or stone to be used for the. face of any structure (e.g. wood, 'aluminum or other siding material) must be pre-approved in writing by the Declarant as to both material and color before being installed on any dwelling or structure.

U) No swimming pools may be installed on any Lot other than in-ground swimming pools.

(k) No satellite signal reception dishes larger than twenty-four inches (24") in diameter shall be installed or placed on any Lot.

(I) No outbuildings, sheds or similar structures shall be erected unless they shall be constructed of materials similar and matching to the residential dwelling structure on any Lot; provided, however, that no outbuildings, sheds or similar structures shall be erected unless and until at least ninety percent (90%) of the Lots in the phase of the Plan

in which the Lot is situate have been sold by the Declarant. .

Section 5.3 Subdivision of Lots. None of the Lots shall at any time be divided into

as many as two building sites, and no building site shall be less in area than the area of the smallest Lot on the Plans. A single Lot, together with contiguous portion or portions of one or more Lots, may be used for one building site, and no Building or structure or any part thereof shall be erected or maintained nearer the side boundary lines of such integral

unit than Twenty (20') feet. . .

ARTICLE 6

SETBACKS AND BUILDING LINES

Section 6.1 Building Defined. For the purpose of this Section, Building shall also

mean the main residence, the garage, and related outbuildings and all projections thereof

such as bay, bow, or oriel windows, exterior chimneys, covered porches, porticos, loggias,

and the like, but shall not include the eaves of such structures, open pergolas, uncovered

porches, open terraces, stoops, steps, or balustrades, the sides of which do not extend more than three feet (3') above the level of the ground floor of the main Building.

Section 6.2 Setback and Buildinq Distances. No structure shall be erected nearer than twenty-five (25) feet to the front Lot line as indicated on the recorded Plan. There shall be a minimum of twenty (20) .feet between the sides of structures, except as may otherwise be shown on the Plan. No building shall be erected nearer than thirty (30) feet from the Lot rear line on perimeter Lots 3-7, inclusive, 46-50, inclusive, and 68; and not nearer than twenty (20) feet from the Lot rear line on all other Lots. Notwithstanding anything to the contrary herein, the Declarant shall have the right to permit reasonable modifications of the setback requirements, with the prior approval of Cranberry Township, where, in its sole discretion, strict enforcement of these setback provisions would work a hardship.

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Section 6.3 Walls and Fences. Walls and fences may be erected and hedges grown but only between the rear Lot line and a point not beyond the front setback building line and, on any Lots adjoining side streets, beyond the side building setback line, unless otherwise approved by the Declarant (except for split-rail corner fences located at the corners of a Lot side line. and the street bounding the Lot, not exceeding 12-feet in each of the two legs), and shall be no higher than four and one-half feet (41/2') (except for splitrail fences, the supporting posts of which may be five feet (5') so long as the top rail does not exceed four and one-half feet (41/2'); provided, however, said restrictions shall not be applicable to Lots 11 through 15 and Lot 68. As to the latter identified Lots, walls, fences and hedges may be erected or grown up to the point of the rear Lot line.

Section 6.4 Street Trees. All street trees shall be .planted at a distance of no less than three feet (3') from any sidewalk and no more than sixteen feet (16') from any sidewalk.

ARTICLE 7 HOMEOWNER'S ASSOCIATION

Section 7.1 Membership. For the purpose of ownership and maintenance of Open Spaces and all common community services of every kind and nature required or desired within the Real Estate for the general use and benefit of all Lot Owners, each and every Lot Owner, in accepting a deed or contract for any Lot in the Real Estate, agrees to and shall be a member of and be subject to the obligations and duly enacted by-laws of Avery's Fields Homeowners Association, a nonprofit corporation. With respect to the affairs of the Association, upon the conveyance of the last of all Lots in the Plan, or upon irrevocable written declaration by the Declarant, all Lot Owners shall have one vote for each Lot owned. Prior to the conveyance of the last of all Lots in the Plan, or upon irrevocable written declaration by the Declarant, the Declarant only shall have the right to vote in the affairs of the Association.

Section 7.2 Succession. Upon the sale by Declarant of all of the Lots provided in the Plan embracing all of the Real Estate, or upon irrevocable written declaration by the Declarant, the Association shall succeed to the position of the Declarant with respect to the provisions of these covenants, conditions, reservations and restrictions, and the term "Declarant" herein shall then mean the "Association".

Section 7.3 Powers of the Association. In addition to the powers set forth hereinabove, the Association shall have the following additional powers:

(a) Declaration of Authoritv. To appoint committees of the Board of Directors (which need consist of only one (1) member of the Board of Directors) and to delegate to

such committees the Board of Directors' authority to carry out certain duties of the Board. of Directors, subject to the approval and control of the Board of Directors.

(b) Contractinq for Services. To engage the services of any persons (including, but not limited to, accountants and attorneys) deemed necessary by the Association at

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Section 8.1 Quarterlv Assessments. All Common Expense assessments made in order to meet the requirements of the Association's annual budget shall be deemed to be adopted and assessed on a quarterly basis (rather than on an annual basis payable in quarterly installments) and shall be due and payable in advance on the first day of the quarter. Special assessments shall be due and payable in one or more quarterly payments, in advance, on the first day of each quarter, as determined by the Board of Directors. Any expense assessment, fees, legal charges, fines or interest shall automatically constitute lien(s) upon the respective Lot being assessed. Assessments shall be payable in advance for the current quarter (pro-rated as of the date of closing) and for the next succeeding quarter following the date of closing, due and payable in advance at the settlement of any conveyance of any Lot to any ultimate user (i.e., not a Builder); provided, however, that no assessments shall be chargeable to any Builder for any time frame that the Builder holds title to the Lot.

Section 8.2 Subordination of Certain Charqes. Any fees, charges, late charges, fines and interest which may be levied by the Association shall be subordinated to the lien of a prior recorded first mortgage on a Lot.

Section 8.3 Limitation on Expenditures. All expenses, charges and costs of the maintenance, repair or replacement of the Open Spaces, and any other expenses, charges or costs which the Association may incur or expend pursuant hereto, shall be approved by the Board of Directors, and a written memorandum thereof prepared and signed by the Treasurer of the Association. There shall be no structural alterations, capital additions to or capital improvements on the Open Spaces (other than for purposes of repairing, replacing and restoring portions of the Open Spaces) requiring an expenditure in excess of Ten Thousand ($10,000) Dollars without the prior approval of Two-Thirds (2/3) of the Lot Owners entitled to cast votes.

Section 8.4 Reserve. Each annual budget for quarterly assessments of Common Expenses shall include an amount reasonably considered by the Board of Directors to be sufficient as a reserve for replacements and contingencies. To initiate such reserve, the Declarant shall collect from each of its grantees, at time of settlement, an amount equal to one-fourth (1/4th) of the first annual budget allocable to the Lot purchased by such grantee and shall remit such amount to the Association. Extraordinary expenditures not originally included in the annual budget which may become necessary during the year may be charged first against such reserve, as the Board of Directors shall determine. In addition, the Association shall have the right to segregate all or any portion of the reserve for any specific replacement or contingency upon such conditions as the Board of Directors

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deems appropriate.

Section 8.5 Accountinq. On or before the last day of April of each calendar year commencing 1994, the Association shall supply to all Lot Owners an itemized accounting of the Common Expenses for the preceding calendar year actually incurred and paid together with a tabulation of the amounts collected and sales of property owned or managed by the Association on behalf of the Association, and showing the net excess or deficit of income over expenditures plus reserves.

Section 8.6 Further Assessments. If any annual budget proves inadequate for any

reason, including nonpayment of any Lot Owner's quarterly assessments, or any nonrecurring Common Expense or any Common Expense not set forth in the annual budget as adopted, the Board of Directors may at any time levy further quarterly assessments according to each Lot Owner's membership in the Association. Such further quarterly assessments shall be payable over such period of time as the Board of Directors may determine. The Board of Directors shall serve notice of such further assessments on all Lot Owners by a statement in writing giving the amount and reasons therefor, and such further quarterly assessments shall become effective as determined by the Board of Directors.

Section 8.7 Surplus. Any amounts accumulated from assessments for Common

Expenses and income from the operation of the Open Spaces to which such Common Expenses pertain in excess of the amount required for actual Common Expenses and reserves for future Common Expenses shall be credited to each Lot Owner paying a share of such Common Expenses in proportion to the share of such Common Expenses paid by each such Lot Owner, said credits to be applied to the next quarterly assessments of Common Expenses due from said Lot Owners under the current fiscal year's budget, and thereafter, until exhausted.

Section 8.8 Acceleration. If a Lot Owner is in default in the payment of the aforesaid charges or quarterly assessments for sixty (60) days, the Board of Directors may, in addition to all other remedies in this Declaration contained, accelerate all other quarterly assessments to become due for the fiscal year in which such default occurs.

Section 8.9 All assessments, special assessments or further assessments shall be pro rated among the Owners of all Lots by dividing the amount of such assessments by the number of Lots in the Plan without regard to the size of any individual Lot nor conditioned upon a building being erected upon any individual Lot.

Section 8.10 Interest and Charges. All sums assessed by the Association against

any Lot Owner at a regular or special assessment shall bear interest thereon at the then maximum legal rate (but not more than fifteen percent (15%) per annum) from the thirtieth (30th) day following default in payment of any quarterly assessment when due. Any delinquent Owner shall also be obligated to reimburse (i) all expenses of the Association, including reasonable attorney's fees, incurred in the collection. of the delinquent assessments by legal proceedings or otherwise; and (ii) any amounts paid by the Association for taxes or on account of superior liens or otherwise to protect its liens, which expenses and amounts, together with accrued interest, shall be deemed to constitute part

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of the delinquent assessments and shall be collectible as such, subject to Section 8.2 above.

Section 8.1"1 Independent Covenant. The obligation to pay assessments is a separate and independent covenant on the part of each Lot Owner. No diminution or abatement of assessments or set-off shall be claimed or allowed for any alleged failure of the Association or the Board of Directors to take some action or perform some function required of it, or for inconvenience or discomfort arising from the making of repairs or

improvements or from any other action it takes.

Section 8.12 Confession of Judqment. IN ORDER TO EXPEDITE THE ASSOCIATION'S COLLECTION OF ANY DELINQUENT ASSESSMENT, EACH LOT OWNER (BY THE ACCEPTANCE OF THE DEED TO HIS/HER LOT) SHALL BE DEEMED TO HAVEAPPOINTED ANY ATTORNEY LICENSED TO PRACTICE IN THE COURTS OF THE COMMONWEALTH OF PENNSYLVANIA THE ATTORNEY-IN-FACT FOR SUCH LOT OWNER TO CONFESS JUDGMENT AGAINST SUCH LOT OWNER IN ANY COURT OF COMPETENT JURISDICTION IN PENNSYLVANIA, FOR ANY SUCH UNPAID ASSESSMENT(S) AND ANY OTHER INTEREST, FEES OR LATE CHARGES, PLUS REASONABLE ATTORNEYS' FEES AND EXPENSES, WHICH APPOINTMENT (BEING FOR SECURITY) SHALL BE IRREVOCABLE; AND FOR SO DOING A COPY OF THIS ARTICLE AND SAID DEED, BOTH VERIFIED BY AFFIDAVIT, SHALL BE A SUFFICIENT WARRANT. THE AUTHORITY GRANTED HEREIN TO CONFESS JUDGMENT SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF BUT SHALL CONTINUE FROM

TIME TO TIME AND AT ALL TIMES UNTIL THE DECLARATION SHALL BE TERMINATED. "

Section 8.13 Implementation. The Association shall adopt in its By-Laws such additional or other procedures and requirements as it deems necessary and desirable to implement the provisions of this Article 8 and to otherwise provide for the efficient fiscal operation and management of the Open Spaces.

ARTICLE 9 INSURANCE

Section 9.1 Generally. The Association shall acquire and pay for insurance subject

to the following:

(a) such insurance as the Board of Directors deems advisable in the operation,

and for the protection, of the Open Spaces.

(b) The amount of property insurance obtained pursuant to the Act shall be equal to the full insurable replacement value of the insured property, without deduction for depreciation. Such insurance policy(ies) may, at the option of the Board of Directors, contain a "deductible" provision in an amount determined by the Board of Directors but not to exceed Five Thousand ($5,000.00) Dollars.

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all claims which he or it may have against any other Lot Owner, the Association, the Board of Directors and members thereof, the Declarant and their respective employees and agents, for damage to the Open Spaces, or to any personal property located in the Open Spaces, caused by fire or other casualty or any act or omission of any such party to the extent that such damages is covered by fire or other form of hazard insurance.

(d) If the actor omission of a Lot Owner, or of a member of his family, a household pet, guest, occupant or visitor of such Lot Owner, shall cause damage to the Open Spaces, or maintenance, repairs or replacements shall be required which would otherwise be a Common Expense, then such Lot Owner shall pay for such damage and such maintenance, repairs and replacements, as may be determined by the Board of Directors, to the extent such payment is not waived or released under the provisions of Subsection (c) above.

(e) Any release or waiver referred to in Subsections (c) and (d) hereof shall be valid only if such release or waiver does not affect the right of the insured under the applicable insurance policy to recover thereunder. The Lot Owners and the Association, with regard to the insurance carried by each of them, shall use their best efforts to see that their insurance carriers agree that such release or waiver does not affect their rights to recover.

(f) If the Association fails within sixty (60) days of an insured loss to initiate a claim for damages recoverable under the property insurance policy(ies) obtained by the Association, any Lot Owner may initiate such a claim on behalf of the Association. At least once every three (3) years, but more frequently if in the Board of Directors' judgment the Open Spaces are rapidly appreciating in value, the Board of Directors shall cause an appraisal of the Open Spaces to be made for the purpose of determining the current full insurable replacement value of the insured property, without considering depreciation, and the Board of Directors shall change the amount of property insurance on the Open Spaces to the amount of the then current full insurable replacement value of the Open Spaces as established by such appraisal.

(g) Comprehensive public liability and property damage insurance shall be in such limits as the Board of Directors shall deem desirable, provided that such limit shall not be less than One Million Dollars ($1,000,000.00) per occurrence for personal injury and/or property damage, insuring the Declarant, the Association, the members of the Board of Directors, and their respective agents and employees, and the Lot Owners, from any liability to the public or to the Lot Owners, their tenants or invitees, relating in any way to the ownership and/or use of the Open Spaces or any part thereof.

(h) The Association may obtain such other forms of insurance as the Board of

Directors shall elect to effect including_Board of Directors and officers liability insurance I

and such Worker's Compensation insurance as may be necessary to comply with

applicable laws.

(i) The Association shall obtain a fidelity bond or bonds or insurance to protect against dishonest acts on the part of the members of the Board of Directors, officers, agents, employees, volunteers and all others who handle, or are responsible for handling,

" ,.

funds of the Association. Such bond or bonds or insurance shall name the Association as an obligee or insured and shall be inan amount equal to One Hundred Fifty percent (150%) of the then current Common Expense budget or such higher amount as the Board of Directors deems appropriate. Such bond or bonds or insurance shall contain a waiver of defense based upon the exclusion of persons who serve without compensation from the definition of "employee" or other appropriate provisioris to assure coverage of such persons.

j) Except as otherwise provided in this Declaration, premiums for all insurance obtained or maintained by the Association, fees and expenses of the insurance trustee, if any, and the cost of any appraisal which the Board of Directors deems advisable in connection with any insurance shall be Common Expenses.

(k) The Association shall use its best efforts to secure policies providing that the policies cannot be cancelled, invalidated or suspended on account of the conduct of any one or more individual Lot Owners or any officer or employee of the Association without a prior demand in writing that the Association cure the defect and without a reasonable period of time thereafter in which to cure the same.

ARTICLE 10

LIMITED LIABILITY AND INDEMNIFICATION

Section 10.1 Limited Liability of the Board of Directors. The Board of Directors, andits members, in their capacity as members, officers and employees:

(a) Shall not be liable for the failure of any service to be obtained by the Association and paid for by the Association, or for injury or damage to person or property caused by the elements or by another Lot Owner or person on the Real Estate, unless in each such instance such injury or damages had been caused by the willful misconduct or

gross negligence of the Association or the Board of Directors. .

(b) Shall not be liable to the Lot Owners as a result of the performance of the members of the Board of Directors' duties for any mistake of judgment, negligence or otherwise except for the members of the Board of Directors' own willful misconduct orgross negligence; .

(c) Shall have no personal liability in contract to a Lot Owner or any other person or entity under any agreement, check, contract, deed, lease, mortgage, instrument or transaction entered into by them on behalf of the Board of Directors or the Association in the performance of the duties of the members of the Board of Directors;

(d) Shall not be liable to a Lot Owner, or such Lot Owner's tenants, employees, agents, customers or guests, for loss or damage caused by theft of or damage to personal property left by such Lot Owner or his tenants, employees, agents, customers or guests in a Lot, or in or on the Open Spaces, except for the members of the Board of Directors' own willful misconduct or gross negligence;

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(e) Shall have no personal liability in tort to a Lot Owner or any other person or entity, direct or imputed, by virtue of acts performed by or for them, except for the members of the Board of Directors' own willful misconduct or gross negligence in the performance of their duties; and

(f) Shall have no personal liability arising out of the use, misuse or condition of any Building or the Open Spaces, or which might in any other way be assessed against or imputed to the members of the Board of Directors as a result of or by virtue of their performance of their duties, except for the members of the Board of Directors' own willful misconduct or gross negligence.

Section 10.2 Notice of Complaints. Complaints brought against the Association, the Board of Directors, or the officers, employees or agents thereof in their respective capacities as such, shall be directed to the Board of Directors of the Association, which shall promptly give written notice thereof to the Lot Owners, and such complaints shall be heard by the Association pursuant to its By-Laws. All complaints shall be in writing and particularized. The Lot Owners and the holders of mortgages on Lots shall have no rights to participate in such matters other than through the Association.

Section 10.3 Indemnification Against Third Party Actions. The Association shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or complete action, suit, or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Board of Directors or Association) by reason of the fact that he is or was the Declarant or a member of the Board of Directors, officer, employee or agent of the Association, or is or was serving at the request of the Association as a director, trustee, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit, or proceeding, unless such person is found to have acted in bad faith or in a reckless or grossly negligent manner and if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the Association, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by an adverse judgment, order, or settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interest of the Association and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.

Section 10.4 Indemnification Against Association Action. The Association shall indemnify the Declarant or any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit, or proceeding, whether civil, criminal, administrative or investigative, by or in the right of the Board of Directors or the Association, by reason of the fact that he is or was a member of the Board of Directors, officer, employee or agent of the Association, or is or was serving at the request of the Association as a director, trustee, officer, employee or agent of another corporation,

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partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit, or proceeding, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Association and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for gross negligence or willful misconduct in the performance of his duty to the Association, unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.

Section 10.5 Determination. To the extent that a member of the Board of Directors, officer, employee, or agent of the Association has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in Section 10.3 or 10.4 hereof, or in defense of any claim, issue, or matter therein in which he was not indemnified, then he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. Any other indemnifications under Sections 10.3 or 10.4 hereof shall be made by the Association only upon a determination that indemnification of the Board of Directors member, officer, employee, or agent is proper in the circumstances because he has met the applicable standard of conduct set forth respectively in Sections 10.3 or 10.4 hereof. Such determination shall be made either (i) by the Board of Directors by a majority vote of a quorum consisting of all members who were not parties to such action, suit or proceeding, or (ii) by independent legal counsel (not the Association's legal counsel) in a written opinion, or (iii) by the Lot Owners by the affirmative vote of a majority of the Lot Owners at any meeting duly called for such purpose.

Section 10.6 Advance. Expenses incurred in defending a civil or criminal action, suit or proceeding as contemplated in this Article shall be paid by the Association in advance of the final disposition of such action, suit or proceeding upon a majority vote of the Board of Directors and upon receipt of an undertaking by or on behalf of the Board of Directors member, officer, employee, or agent to repay such amount or amounts unless it ultimately be determined that he is not entitled to be indemnified by the Association as authorized by this Article.

Section 10.7 Scope of Indemnification. The indemnification provided for by this Article shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any provision in the Association's Articles of Incorporation, By-Laws, agreements, vote of disinterested Lot Owners or members of the Board of Directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. The indemnification authorized by this Article shall apply to all present and future members of the Board of Directors, officers, employees, and agents of the Association, and shall continue as to a person who has ceased to be a member of the Board of Directors or an officer, employee or agent, shall inure to the benefit of the heirs and personal representatives of all such persons, and shall be in addition to all other rights

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to which such persons may be entitled as a matter of law.

Section 10.8 Insurance. The Association shall purchase and maintain insurance on behalf of the Declarant and any person who was or is a member of the Board of Directors, officer, employee, or agent of the Association, or who was or is serving at the request of the Association as a trustee, director, officer, employee, or agent of another corporation, entity, or enterprise (whether for profit or not for profit), against any liability asserted against him or incurred by him in any such capacity or arising out of his status as such whether or not the Association would have the power to indemnify him against such liability under the laws of the Commonwealth of Pennsylvania, as the same may be hereafter amended or modified.

Section 10.9 Payments and Premiums. All indemnification payments made, and all insurance premiums for insurance maintained, pursuant to this Article shall constitute

expenses of the Association and shall be Common Expenses.

ARTICLE 11

EFFECT AND ENFORCEMENT

Section 11.1 Reservations and Restrictions to Run With Land. All of the covenants, conditions, restrictions, reservations, and servitudes set forth herein shall run with the land and each Lot Owner, by accepting a deed to any Lot, accepts the same subject to such covenants, restrictions, reservations, and servitudes and agrees for himself, his heirs, .administrators, and assigns to be bound by each of such covenants, conditions, restrictions, reservations, and servitudes jointly, separately, and severally.

Section 11.2 Remedies for Violations. For a violation or a breach of any of these covenants, conditions, reservations and restrictions by any person claiming by, through, or under the Declarant, or by virtue of any judicial proceeqings, the Declarant, and the Lot Owners, or any of them severally, shall have the right to proceed at law or in equity to compel a compliance with the terms hereof or to prevent the violation or breach of any of them. In addition to the foregoing right, the Declarant shall have the right, whenever there shall have been built on any Lot any structure which is in violation of these restrictions, to enter upon the Lot where such violation of these covenants, conditions, reservations and restrictions exists and summarily abate or remove the same at the expense of the Lot Owner, and any such entry and abatement or removal shall not be deemed a trespass.

(a) Should the Declarant or any Lot Owner enforce any of the foregoing covenants, conditions, reservations, or restrictions, by reason of such breach, all costs incurred in such enforcement, including a reasonable fee for counsel, shall be paid by the Lot Owner, and the Declarant or Lot Owner enforcing same shall have a Iien upon such Lot or Lots to secure payment of all such accounts.

(b) Should the Lot Owner fail, neglect, or refuse to satisfy and discharge any lien arising hereunder within thirty (30) days, the Declarant or Lot Owner in whose favor said lien has arisen, their respective heirs, successors and assigns, shall have the right to

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interest on such liens at the rate of eight (8%) percent per annum or the maximum allowed by law, whichever is less, and shall be entitled to receive all costs of collection, including a reasonable attorney's fee.

(c) The breach of any of the foregoing covenants, conditions, reservations or restrictions shall not defeat or render invalid the lien of any mortgage made in good faith for value as to any Lot or Lots or portions of Lots, but these covenants, conditions, reservations and restrictions shall be binding upon and effective against any such mortgagee or owner thereof, whose title thereto or whose grantor's title is or was acquired by foreclosure, or otherwise.

(d) . No delay or omission on the part of the Declarant or the Lot Owners in the Real Estate in exercising any rights, power, or remedy herein provided, in the event of any breach of the covenants, conditions, reservations or restrictions herein contained, shall be construed as a waiver thereof or acquiescence therein, and no right of action shall accrue nor shall any action be brought or maintained by anyone whatsoever against the Declarant for or on account of its failure to bring any action on account of any breach of these covenants, conditions, reservations or restrictions, or for imposing restrictions herein which may be unenforceable by the Declarant.

Section 11.3 Severabilitv. Each and every one of the covenants, restrictions, reservations and servitudes contained herein shall be considered to be an independent and separate covenant and agreement, and in the event anyone or more of the foregoing covenants, conditions, reservations or restrictions shall be declared for any reason, by a court of competent jurisdiction, to be null and void, such judgment or decree shall not in any manner whatsoever affect, modify, change, abrogate or nullify any of the covenants, conditions, reservations and restrictions npt so declared to be void, but all of the remaining covenants, conditions, reservations and restrictions not so expressly held to be void shall continue unimpaired and in full force and effect.

Section 11.4 Rule Aqainst Perpetuities. In the event the provisions hereunder are declared void by a court of competent jurisdiction by reason of the period of time herein stated for which the same shall be effective, then in that 'event such terms shall be reduced to a period of time which shall not violate the rule against perpetuities as set forth in the laws of the' Commonwealth of Pennsylvania.

Section 11.5 Public Riqhts. The Real Estate shall be subject to any and all rights

and privileges which the Township of Cranberry (the "Township") or the County of Butler,

Pennsylvania, may have acquired through dedication or the filing or recording of maps or plats of such premises, as authorized by law, and provided further, that no covenants, conditions, reservations, or restrictions, or acts performed, shall be in conflict with any Township or County Zoning Ordinance or Law. .

Section 11.6 Third Partv Beneficiarv. It is expressly intended by the Declarant and each Lot Owner that the Township shall be a beneficiary of the covenants, restrictions, reservations and servitudes set forth herein. The Declarant and each Lot Owner further acknowledge that by this express intention to benefit the Township, the Township shall be a party entitled to enforce all covenants, restrictions, reservations and servitudes contained.

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herein, which entitlement on the part of the Township shall include the ability to exercise any and all remedies available at law and in equity for the enforcement of same.

ARTICLE 12

DURATION OF COVENANTS, RESTRICTIONS, RESERVATIONS AND SERVITUDES

Section 12.1 . Duration. All of the foregoing covenants, conditions, reservations and

restrictions shall continue and remain in full force and effect at all times as against the Owner of any Lot fn such premises, regardless of how he acquired title, until commencement of the calendar year 2017, and thereafter be of no further legal or equitable effect on the Real Estate or any Lot Owner; provided, however, that these covenants, conditions, reservations and restrictions shall be automatically extended for a period of ten (10) years, and thereafter in successive ten-year periods, unless on or before the end of one of such extension periods the Lot Owners of a two-thirds majority of the Lots in the Real Estate shall by written instrument duly recorded declare a termination of the same. Although these covenants, conditions, reservations and restrictions may expire as herein provided, any and aII reversions or Iiens for breach of these covenants, conditions, reservations or restrictions committed or suffered prior to such expiration shall be absolute.

ARTICLE 13 DECLARANT'S'RIGHTS

Section 13.1 Control.

(a) Until the last Lot of all Lots in the Plan is conveyed to the ultimate user (i.e.,

not a builder), or upon irrevocable written declaration by the Declarant, the Board shall consist of one (1) Director, which shall be the Declarant, its successor or assign. Until such time only the Declarant shall have any votes in the Association's matters and affairs.

(b) No later than one hundred twenty (120) days after conveyance of the last Lot of all Lots in the Plan to the ultimate user (i.e., not a builder), or upon irrevocable written declaration by the Declarant, five (5) members of the Board of Directors shall be elected by the Lot Owners entitled to vote.

(c) The five (5) Directors shall at all times consist of two (2) Directors owning a Lot in each of the two (2) phases of the Plan, respectively (as designated by the Declarant). Only those Lot Owners in each respective phase shall be entitled to vote for the respective Directors owning a Lot in each such phase. The fifth Director shall be elected by a majority of all Lot Owners in the Plan; provided, however, the fifth Director shall only be entitled to vote on any matter in order to and if necessary to break a deadlock of the Board of Directors.

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ARTICLE 14

AMENDMENT OF DECLARATION

Section 14.1 Amendment Generallv. This Declaration may be amended only in

accordance with the express provisions of this Declaration.

Section 14.2 Amendment by Lot Owners. This Declaration may be amended by affirmative vote of Two-Thirds (2/3) of all Lot Owners (including Lots owned by Declarant), pursuant to procedures applicable to voting by members of the Association as set forth in its By-Laws, except that no amendments effecting or relating to the Open Spaces shall be made prior to January 1, 2017.

Sedion14.3 Rights of Declarant. Notwithstanding any provision herein contained to the contrary, no change, modification or amendment which affects the rights, privileges or obligations of the Declarant shall be effective without the prior written consent of the Declarant. The Declarant shall have the unrestricted right to amend this Declaration at any time prior to the sale of the last Lot of all Lots in the Plan to the ultimate user I.e., not a builder) or upon irrevocable written declaration by the Declarant.

Section 14.4 Other Amendments. If any amendment is necessary in the judgment of the Declarant to cure any ambiguity or to correct or supplement any provisions of this

Declaration or the Plan which is defective or inconsistent with any other provision hereof or thereof, or to change, correct or supplement anything appearing or failing to appear in

the Plan which is incorrect, defective or similarly inconsistent, or if such amendment is necessary to conform to the then current requirements of the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation with respect to planned residential developments, the Declarant may, at any time and from time to time effect such amendment without the approval of the Lot Owners or their Mortgagees, upon receipt by the Declarant of an opinion. from independent legal counsel to the effect that the proposed amendment is permitted by the terms of this sentence, ,together with a like opinion from an independent registered architect or licensed professional engineer in the case of any such amendment to the plan. Each such amendment shall be effective upon the recording of an appropriate instrument setting forth the amendment and its due adoption, execution and acknowledgement by one or more general partners of the Declarant.

ARTICLE 15 EXCLUSIONS FROM DECLARATION

Section 15.1 Exclusion. This Declaration shall not apply to Lot 36 as shown in the Plan and the owner thereof, his heirs, successors and/or assigns, being that the owner thereof as of the recording of this Plan is the original grantor to the Declarant for all of the Real Estate. The owner of Lot 36 in the Plan, his heirs, successors and/or assigns shall not be bound or restricted by the covenants, conditions and servitudes contained in this Declaration (except the owner of Lot 36 shall be required to tie-in to the Cranberry

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ACKNOWLEDGMENT

COMMONWEALTH OF PENNSYLVANIA

COUNTY OF Allegheny

'f . (

On this, the 4th day of May, 2001, before me, the undersigned authority, personally appeared Donald B. Rodgers, President of Avery's Fields, Inc., General Partner of Avery's Fields Associates, known to me (or satisfactorily proven to be the same) who, being first duly sworn according to law, deposes and says that he has executed the foregoing Fifth Amended and Restated Declaration and Establishment of Conditions, Covenants, Reservations and Restrictions ("Restrictive Covenants") for the purposes set forth therein and that Avery's Fields Associates has taken all necessary corporate actions and has adopted all necessary corporate resolutions to approve Avery's Fields Associates entering into and executing these said Restrictive Covenants and that such actions have been duly authorized by Avery's Fields Associates.

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IN WITNESS WHEREOF, I have set my hand and official seal.

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My Commission Expires:

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ALL that certain parcel of land situate in Cranberry Township, Butler County, Pennsylvania being more particularly bounded and described as follows: .

BEGINNING at a point on the reputed dividing line between Beaver County, Pennsylvania and Butler County, Pennsylvania at the northwestern corner of the herein described parcel of land, said point also being the southwestern corner of lands now or formerly of Joseph L. Meyer, et ux as recorded in Deed Book Volume 942, Page 258 and dated November 23, 1971; thence along the southerly line of property now or formerly of Joseph L. Meyer, et UX. South 86° 23' 47" East, 429.00 feet to a point at the southeastern corner of property now or formerly of Joseph L. Meyer, et ux; thence along the easterly line of property now or formerly of Joseph L. Meyer, et ux, North 3° 06' 13" East, 76.63 feet to a point on the southerly line of Klein Road, T-303; thence along the southerly line of Klein Road, T-303 the following three courses and' distances viz: South 86° 23; 47" East, 134.46 feet to a point; thence by the arc of a circle deflecting to the left having a radius of 5025.00 feet, an arc distance of 102.32 feet to a point; thence, South 87° 33' 47" East, 295.72 feet to a point on the westerly line of lands of property now or formerly of Maryet Deemer as recorded in Deed Book Volume 912, Page 344 and dated November 3, 1969; thence along the westerly line of property now or formerly of Maryet Deemer, South 2° 26' 13" West, 100.00 feet to a point at the southwestern corner of property now or formerly of Maryet Deemer; thence along the southerly line of property now or formerly of Maryet Deemer, South 87° 33' 47" East, 150.00 feet to a point at the southeastern corner of property now or formerly of Maryet Deemer; thence along the easterly line of property now or formerly of Maryet Deemer, North 2° 26' I)" East, 100.00 feet to a point on the southerly line of Klein Road, T-303; thence along the southerly line of Klein Road, T-303, South 87° 33' 47". East, 351.28 feet to a point on the westerly line of lands of property now or formerly of Ronald W. Deemer, et ux as recorded in Deed Book Volume 1315, Page 684 and dated November 20, 1986; thence along the westerly line of property now or formerly of Ronald W. Deemer, et ux, South 7° 33' 47" East, 194.73 feet to a concrete monument at the southwestern corner of property now or formerly of Ronald W. Deemer; thence along the southerly line of property now or formerly of Ronald W. Deemer, et ux, South 87° 33' 47" East, 200.00 feet to a concrete monument at the southeastern comer of property now or formerly of Ronald W. Deemer, et ux; thence along the easterly line of property now or formerly of Ronald W: Deemer, et ux, North 7° 33' 47" West, 196.41 feet to a point on the southerly line of Klein Road, T-303; thence along the southerly line of Klein Road, T-303, South 87° 13' 47" East, 529.62 feet to a point at the intersection of the southerly line of Klein Road, T-303 and the westerly line of Powell Road, T-300; thence along the westerly line of Powell Road, T-300 the following four courses and distances viz; South 9° 16' 47" East, 256.77 feet to a point; thence by the arc of a circle deflecting to the right having a radius of 4975.00 feet, an arc distance of 434.15 feet to a point; thence by the arc of a circle deflecting to the left having a radius of 1337.81 feet, an arc distance of 144.44 feet to a point; thence South 10° 27' 57" East, 50.77 feet to a point on the dividing line between the herein described parcel of land and the northerly line of the Parcel D in the Bartling Plan of Lots as recorded in Plan Book Volume 132, Page 9; thence along the northerly line of Parcel D and Parcel A in the Bartling Plan of Lots, North 86° 58' 27" West, 1359.65 feet to a stone at the northwestern corner of Parcel A in the Bartling Plan of Lots; thence along the westerly line of Parcel A in the Bartling Plan of Lots,

{ \O909.011252405:}