Hillandale-Burleith Citizens Association Temporary Covenant

Note

This electronic version of the covenant has been transcribed from a paper original and is not authoritative. Errors may have been introduced in the transcription. When in doubt, the original, authoritative paper version should be consulted.

Contents

Exhibits

DECLARATION OF TEMPORARY COVENANTS

THIS DECLARATION, made this 28th day of May, 1981, by Hillandale Development Corporation, Inc., a Nevada Corporation, hereinafter called "Grantor", and accepted by:

hereinafter at various times referred to as the "Grantees".

1. The Grantor is the owner of a tract of land consisting of 42.01 acres in the District of Columbia bounded by 39th Street and Reservoir Road, N.W., Glover Archbold Park and Whitehaven Park, as more particularly described in Paragraph 1 hereof, hereinafter referred to as the "subject property"; and
2. The subject property is now zoned R-l-B (Single Family Residential) and;
3. Certain Grantees, namely Marguerite W. Autry, Robert H. McFadden, Jerilyn L. Stone, James M. Murphy, Jr., Louise A. Remmey, Sue L. Ellis, Pat T. Scolaro, Hazel M. Haight and Dorothy M. Barker (hereinafter referred to as "Named Grantees") are the owners of the properties described in Paragraph 2 hereof, said properties are located within the area of the Burleith community which is represented by Grantee Burleith Citizens Association, Inc., all of which are improved with single-family residential dwellings, and all of which are located in close proximity to the subject property; and
4. Grantee Burleith Citizens Association, Inc. (hereinafter referred to as "BCA") is an incorporated entity of the District of Columbia whose purpose is to represent the residents and/or property owners in the geographical area defined by the boundaries described in Paragraph 3 in regard to promoting the common good and general welfare of the people of the Burleith community through activities designed to bring about civic betterment and social improvement; and
5. Grantor filed an application for a Planned Unit Development to the District of Columbia Zoning Commission and amended said application pursuant to an Agreement, dated June 21, 1979 and revised August 2, 1979, and a Supplemental Agrement, dated November 19, 1979, between the Grantor and the Grantee, BCA (hereinafter sometimes referred to as "the Agreements"); and
6. The Grantees having determined that the property would be developed and not remain in its natural state and wishing to minimize the adverse impact of that development on the neighborhood, have negotiated and executed the aforementioned Agreements with the Grantor and as a result of those Agreements supported the Planned Unit Development application; and
7. The Planned Unit Development, hereinafter sometimes referred to as "The Project", is for a single family residential community on the subject property consisting of not more than 268 dwelling units, a private internal circulation system, recreational facilities and common open spaces and that Planned Unit Development was approved by the District of Columbia Zoning Commission on January 10, 1980, Zoning Commission Order No. 305; and
8. The Grantor and the Grantees have determined that certain provisions of the aforementioned Agreements are temporary in nature, relating specifically to the construction of the project, and have agreed to covenant said provisions for a limited duration as hereinafter described; and
9. The covenants herein and this Declaration of Temporary Covenants are intended to implement the aforementioned Agreements, which are incorporated by reference herein, and are intended to benefit the real property in the area now known as the Burleith neighborhood and as more particularly described in Paragraph 3 as the boundaries of Burleith. Where a provision or a restriction contained in the Agreements conflicts with a provision or a restriction conLained in this Declaration of Temporary Covenants, this Declaration of Temporary Covenants .-onLrols; and
10. These covenants are intended to benefit the Grantees and the property owners and residents represented by Grantee BCA and as such said covenants may be enforced in the manner set forth herein by the Named Grantees or Grantee BCA.
11. These covenants are intended to run with the land for the duration of said covenants as described herein and shall be binding on the Grantor, its successors, heirs and assigns and the Grantees, their successors, heirs and assigns.

NOW, THEREFORE, in consideration of the above Recitals and for other good and valuable consideration, the mutual receipt and sufficiency of which is hereby acknowledged, the Grantor hereby declares that the real property described in and referred to in Paragraph 1 hereof is and shall be held, transferred, sold, conveyed and occupied subject to the conditions, covenants and restrictions hereinafter set forth.

1. The subject property which is and shall be conveyed, transferred, occupied and sold subject to the conditions, covenants and restrictions set forth herein is located in the District of Columbia, and is more particularly described as follows, to wit:

   Being the same tract of land described in a deed dated July 2, 1974, and conveyed by John D. Archbold to the Archbold Investment Company, a general partnership, and recorded in the office of the Recorder of Deeds for the District of Columbia on October 18, 1974, as instrument #23828, and portions of "R" Street, "S" Street, "T" Street, "U" Stret, and a public alley through and around squares S-1312 and N-1312, and being more particularly described as follows:

   Beginning for the same at a point in the westerly righl>of-way line 39th Street (60' wide) ; said point being in the southerly line of Whitehaven Park and being located South 0° 15' 58" West 61.04 feet of a found U.S. Park Monument #357-3; thence leaving the point or beginning and running with the west line of 39th Street.

   1. South 01° 57' 02" East 1703.25 feet to a point in the northerly right-of-way line of Reservoir Road (90' wide) ; thence leaving 39th Street and running with the north line of Reservoir Road.
   2. North 88° 09' 30" West 474.61 feet to a point in the line of a tract conveyed by John D. Archbold to the Republic o1 France by a deed recorded in Liber 13489 at Folio 456; thence leaving the north line of Reservoir Road and running with the lines of the Republic of France the following bearings and distances.
   3. North 08° 12' 25" West 306.25 feet to a found iron pipe, passing in transit a found iron pipe 37.13 feet from the beginning; thence
   4. North 26° 12' 26" West 392,88 feet to a found iron pipe; thence
   5. North 6l° 02' 39" West 287.82 feet to a found iron pipe; thence
   6. South 70° 30' 44" West 395.92 feet to a found iron pipe; said pipe being in the line of a tract conveyed by Anne Archhold to the United States of America by deed recorded in Liber 6730 at Folio 350 and known as Glover-Archbold Parkway; thence leaving the line of the Republic of France and runrdng reversely with the line of the United States of America
   7. 210.30 feet along the arc of a curve to the right having a redius 01300.00 feet and a chord bearing and distance of North 25° 13' 44" West 206.02 feet to a point; thence
   8. 350.04 feet along the arc of a curve to the left having a radius of 920.00 feet and a chord bearing and distance of North l6° 02' 46" West 347.4 feet to a point, said point being located North GW' 03' 14" East 75.00 feet of a found U.S. Park Monument #351-83; thence
   9. North 26° 56' 46" West 554.75 feet to a point in the line of Whitehaven Park, said point being located North 89° 45' 49" Last 83.94 feet of a found U.S. Park Monument #351-32; thence rurining with the line of Whitehaven Park
   10. North 89° 45' 49" East 1477.02 feet to a point; thence
   11. North 89° 15' 58" East 217.07 feet to the point of beginning and containing 42.04256 acres of land.

   Subject to all existing easements, rights-of-way, and restrictions of record.

   Subject to review and comments by the office of the Surveyor for the District of Columbia.

2. The real property owned by certain Grantees is also located in the Pstrict of Columbia, and is more particularly described as follows, to wit:

   NAME	ADDRESS	SQUARE	LOT
   >Marguerite W. Autry	>3729 R Street, N.W. Washington, D.C. 20007	>1308-5	>75
   >Robert H. McFadden	>1917-38th St., N.W. Washington, D.C. 20007	>1309	>54
   >Jerilyn L, Stone	>3614 S Street, N.W. Washington, D.C. 20007	>1305	>44
   >James M. Murphy, Jr.	>1925-39th St., N.W. Washington, D.C. 20007	>1310	>99
   >Louise A. Reminey	>3806 T Street, N.W. Washington, D.C. 20007	>1311	>67
   >Sue L. Ellis	>3734 R Street, N.W. Washington, D.C. 20007	>1307	>31
   >Pat T. Scolaro	>1807-37th Street, NW Washington, D.C. 20007	>1306	>63
   >Elazel M. Haight	>1951-39th Street, NW Washington, D.C. 20007	>1310	>73
   >Dorothy M. Darker	>3831 S Street, N.W. Washington, D.C. 20007	>1311	>86

3. The real property represented by the Burleith Citizens' Association, Inc., is also located in the District of Columbia and is as follows, to wit: the area within the following boundaries, beginning at the center of the intersection of Reservoir Road and 35th Street; north in the middle of 35th Street to the middle of Whitehaven Parkway; west along the center of Whitehaven Parkway to its end; and in a straight line to the end of 39th Street and in the middle thereof; south in the middle of 39th Street to the middle of Reservoir Road; and east in the middle of Reservoir Road to the point of beginning. The area includes all the property located within Squares 1293, 1296 S-S, 1296-S, 1296-E, 1302, 1303, 1304, 1305, 1306, 1307, 1308, 1308-S, 1309, 1310 and 1311.

   Construction Traffic

4. In accordance with the District of Columbia regulations and the Agreements prohibiting construction traffic to traverse residential streets of Burleith, construction access to the site shall be via Reservoir Road and 39th Street to the Vehicular Access and the temporary construction road and shall not be via 35th, 36th, 37th, 38th or that portion of 39th (north of S Street) Streets, N.W. or on R, 5, T Streets, N.W. or Whitehaven Parkway, N.W. The Grantor shall post and enforce rules concerning such access.

   Construction Parking

5. In order to minimize the impact of the development upon parking in the Burleith community during the construction phase, the Grantor shall provide parking for vehicles associated with the construction of the project (including those owned and operated by construction workers) within the project site, and the Grantor shall post and enforce rules requiring that vehicles associated with said construction to be parked within said site.

   Temporary Construction Access Road

6. The Grantor shall locate the temporary construction access road as approved by the Zoning Commission on January 10, 1980, Zoning Order No. 305, which plan is attached hereto and made a part hereof as Exhibit 1.

   Noise Control

7. The Grantor shall conform to the relevant provisions of the District of Columbia Noise Control Act of 1977, 24 D.C. Reg. 5331, D.C. Law No. 2-53. The Grantor shall conduct no noise generating activities during the hours from 7:00 p.m. to 7:00 a.m. or on Sunday or legal holidays. The Grantor shall not seek or apply for any variance pursuant to Section 8 of the aforementioned Noise Control Act, except with respect to noise level standards and then only with written notice to the Grantee BCA at least forty-eight (48) hours prior to filing.

   Dust Control

8. Dust emanating from the project shall be controlled in a good workmanlike manner (e.g., suppression by wetting of exposed soils and roadways as necessary to abate said condition).

   Mud, Earth, or Debris Transportation and Deposit Prevention

9. The Grantor shall post and enforce rules to prevent the transportation and deposit of mud, earth, and other debris onto the public streets by vehicles leaving the development. In the event that such material is transported to and deposited on the public streets, the Grantor shall take whatever measures are necessary to promptly remove any material already transported and deposited and shall take whatever measures are necessary to prevent additional transportation and deposit in compliance with District of Columbia Police Regulations. Additionally, the Grantor agrees to advise the Grantee BCA in writing of its cleanup schedule upon written request by the Grantee BCA.

   Coordination of Construction

10. The Grantor will use its best efforts to coordinate its construction with that of the Government of France with regards to the proposed construction of the French Chancery on Reservoir Road, N.W.

    Operation of the Construction of the Project

11. During the construction of Phase I of the project, the general public may have access to the sales office which will be located in the existing gatehouse. Also, during the construction of Phase I, the public may view sample units during normal business hours. During the construction of Phase II, the general public may have access to the sales office and to sample units being constructed in Phases I and II. During the construction of Phase III the general public may have access to the sales office and the sample units being constructed in Phases I, II, III.

    After completion of the project, and transfer of ownership and control to the homeowner's association, all decisions concerning security arrangements of the project will be made by the homeowner s association under its charter and/or by-laws.

    Grantee Access to Special 39th Street, N.W. Tree Preservation Zones During Construction

12. Upon written request and consent in writing, designated representatives of Grantee BCA shall be afforded access to the Special 39th Street, N.W. Tree Preservation Zones (which are described in a Declaration of Permanent Covenants entered into by the Grantor and Grantees on - day, of ____ 1981) at reasonable times, with a representative of the Grantor who is responsible for compliance with the Agreements and these covenants. Such written request shall be accepted and acknowledged upon its tender. Such Grantee BCA representatives shall wear such necessary safety equipment as required by and provided by the Grantor before being admitted to the subject property during construction. Said written request shall be submitted at reasonable intervals and consent shall not be unreasonably refused.

    During excavation, grading, and other periods when heavy construction equipment is operating in the immediate area and may endanger trees, temporary barriers (which may include snow fences) shall be emplaced and maintained around every tree preservation zone, whether to be in private lots or held in common described in a Declaration of Permanent Covenants, entered into by the Grantor and Grantees on 28th day of May 1981. Trees along the inside perimeter of each such tree preservation zones shall be marked in such manner(s) as to make them readily identifiable to any persons engaged in work attendant to the construction of the project. Any contractors or subcontractors undertaking such work shall be expressly advised by the Grantor of the tree preservation restrictions established herein, or the abovementioned Declaration of Permanent Covenants.

    No construction activity shall occur and no construction equipment shall operate or be parked in the Special 39th Street Tree Preservation Zones except to erect a temporary or permanent fence along the entire eastern property line of Hillandale.

    Any areas of the Special 39th Street Tree Preservation Zones where grading or construction has taken place, or is permitted pursuant to the Declaration of Permanent Covenants mentioned above, and has resulted or will result in the loss of any trees or other vegetation, will be replanted by the Grantor in substantial accordance with the Conceptual Planting Plan attached hereto, and mdde a part hereof as Exhibit 2 [electronic version in two parts: see part 2], and be subject to the restrictions of the Special 39th Street Tree Preservation Zones contained herein and in the above-mentioned Declaration of Permanent Covenants.

    Copies of the certification of compliance, required. by Zoning Commission Order No. 305 to enforce the tree preservation zone restrictions, shall be sent to the Grantee BCA.

    Severability

13. Except as otherwise provided, if one or more clauses or terms of this Declaration of Temporary Covenants or any covenant contained herein is not given effect by any court, the other clauses or terms of this Declaration of Temporary Covenants shall remain in effect and the enforceability of such clauses, terms and, covenants shall not be affected.

    If the District of Columbia, by law or regulation, prevents the performance of any of the provisions of this Declaration of Temporary Covenants or the Agreements, the Grantor shall promptly advise the Grantees of said law or regulation and the parties hereto shall jointly seek relief from the District of Columbia with respect to the application of that law or regulation and if such relief is not granted, the parties hereto shall seek alternative methods to carry out the obligation of the above sections, in a manner which would not conflict with the District of Columbia law or regulation. If the parties are unable to agree on such alternative methods, the applicable District of Columbia law or regulation shall govern performances of the obligations in this Declaration of Temporary Covenants. A District of Columbia law or regulation for the purposes of this paragraph is defined as an enactment or promulgation pursuant to the District of Columbia Code or the District of Columbia Rules and Regulations. The other provisions, clauses or terms of this Declaration of Temporary Covenants which are not in conflict with the above-mentioned law or regulation shall remain in effect and the enforceability of such provisions, clauses, terms or covenants shall not be affected.

    Waiver

14. Any waiver or acceptance of any breach or violation of any provision of this Declaration of Temporary Covenants shall not constitute a waiver or acceptance of any subsequent breach or violation of the same provision or of any one or more other provisions of this Declaration of Temporary Covenants.

    Enforcement

15. This Declaration of Temporary Covenants may be enforced only by the Grantor and the Grantees or their respective successors, heirs and assigns.

    The covenants may be enforced in a court of competent jurisdiction in an action, or actions, for mandatory or prohibitory injunctive relief. Such injunctive relief, including remedial work, shall be available in addition to, and shall not be limited by any available remedies at law. In any action for an injunction; either preliminary or permanent, the plaintiff shall be entitled to relief upon proof that the alleged conduct did, or was about to occur, and that such conduct was a violation of one or more of these covenants.

    Covenants to Run with the Land

16. Subject to the foregoing, these covenants, conditions and restrictions are to run with the land and are not deemed to be personal to the Grantor or any Grantee and shall be binding upon the Grantor, its successors, heirs and assigns and all parties claiming by, through or under it shall be taken to hold, agree and covenant with the Grantor, its successors, heirs and assigns, to conform to and observe said restrictions.

    Automatic Termination

17. These covenants shall automatically cease and terminate at the completion of construction of the project.

    Upon termination the Grantor and Grantee BCA shall execute, in writing the appropriate Release of this Declaration of Temporary Covenants and said Release shall be filed in the Land Records of the District of Columbia and shall be executed in conformance with the provisions of Paragraph Number 19 of this Declaration of Temporary Covenants.

    Length of Obligations

18. The obligations of the Grantor under these covenants shall apply as long as construction work is in progress on the subject property but only with respect to the period during which the Grantor is the owner of a fee simple interest in the portion of the project with respect to which such obligations apply. When the Grantor ceases to own a fee simple interest therein, the obligations thereafter accruing shall be the obligations of its successors-in-ownership and interest, jointly and severally, except that the Grantor shall be held liable for any violation(s) of these covenants when it acts as a contractor, or sub-contractor, for its successors-in-ownership and interest, at least until the project is completed.

    Amendment and Termination

19. These covenants may not be amended in whole or in part or terminated except by written agreement of the Grantor and the Grantee BCA or its successors. The Named Grantees specifically subrogate their contract and property rights, only in the amendment and termination of this Declaration of Temporary Covenants, to the Grantee ECA or its successors. Grantee BCA shall be deemed to be authorized to act in this regard when such action is in accordance with its by-laws. When the Grantor is succeeded in interest by the Hillandale homeowners association, or other similar group, such homeowners' association shall be deemed to be authorized to act in regard to amendment and termination of this Declaration of Temporary Covenants when such action is in accordance with its by-laws. In the even.t the BCA, or its successors, cease to exist, these covenants can only be amended or terminated by a written agreement of the Grantor and two-thirds (2/3) of the Named Grantees. In the event that the Hillandale homeowners association, or its successors, cease to exist, these covenants can only be amended or terminated by a written agreement of fifty-one (51%) percent of the property owners within the Hillandale project and Grantee BCA or its successors or two-thirds (2/3) of the Named Grantees, whichever is appropriate pursuant to this paragraph.

    Notice

20. All notices and other communications hereunder shall be in writing and be deemed duly given if personally delivered or mailed by certified mail, return receipt requested, postage prepaid to the address of such party as executed herein. The parties shall be responsible for notifying each other, in writing, of any change in address.

    Inclusion in Deeds

21. The affirmative and negative covenants contained herein shall be included in the deed of any transfer of all, or a portion, of the property described in Paragraph 1, from the Grantor to any transferee, whose purpose is to build, construct or complete said project. The affirmative and negative covenants herein shall be referenced in, but need not be included in or physically attached to, any deeds transferring any Assessment and Taxation lots sold for personal use.

    Effective Date

22. This Declaration of Temporary Covenants and the obligations of the parties hereunder shall be effective when filed in the Land Records of the District of Columbia.

    Modification of Zoning Order

23. Nothing in this Declaration of Temporary Covenants shall be deemed to prevent the Grantor, its successors, heirs and assigns from seeking modification, change, alteration, rescission or amendment to Zoning Commission Order No. 305 dated January 10, 1980, in regards to those standards, terms and conditions which are not restricted herein, provided that the Grantor provides the Grantees with written notice of any such modification at least fifteen (15) days in advance of applying to the Zoning Commission or other appropriate agency.

IN WITNESS WHEREOF, the parties hereto have signed, sealed and delivered these presents as their own free act and deed as of the 28th day of May, 1981.

ATTEST:

HILLANDALE DEVELOPMENT CORPORATION, INC.
GRANTOR
Michael L. Gulino,
Vice-President
(SEAL)

ATTEST: GRANTEES:

BURLEITH CITIZENS ASSOCIATION, INC.
Jerilyn L. Stone,
President

Sara Revis
Secretary

WITNESS:

Marguerite W. Autry
3729 R Street, N.W
Washington, D.C. 20007

Robert H. McFadden
1917-38th Street, N.W.
Washington, D.C. 20007

Jerilyn L. Stone
3614 S Street, N.W.
Washington, D.C. 20007

James M. Murphy, Jr.
1925-39th Street, N.W.
Washington, D.C. 20007

Louise A. Remmey
3806 T Street, N.W.
Washington, D.C. 20007

Sue L. Ellis
3734 R Street, N.W.
Washington, D.C. 20007

Pat T. Scolaro
1807-37th Street, N.W.
Washington, D.C. 20007

Hazel M. Haight
1951-39th Street, N.W.
Washington, D.C. 20007

Dorothy M. Barker
3831 S Street, N,W.
Washington, D.C. 20007