THIS INSTRUMENT PREPARED BY AND RETURN TO:
Thomas M. Little, Esquire Foley & Lardner LLP
100 North Tampa Street Suite 2700
Tampa, FL 33602
TOLL LAKEWOOD RANCH
Manatee County, Florida
NOTICE: As provided in Article XIV Section 6 of this Declaration, each Unit Owner, by virtue of taking title to a Unit, hereby agrees that the deed of conveyance of the Unit to a third party shall specifically state that the Unit is subject to the terms of this instrument and shall state the recording book and page information for this instrument as recorded in the public records of Manatee County, Florida. The intent of this provision is to defeat any potential argument or claim that Chapter 712, Florida Statutes, has extinguished the application of this instrument to each of the Units.
TABLE OF CONTENTS
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF
TOLL LAKEWOOD RANCH MANATEE COUNTY, FLORIDA I
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF
TOLL LAKEWOOD RANCH 1
W I T N E S S E T H 1
ARTICLE I DEFINITIONS 1
ARTICLE II PROPERTY SUBJECT TO THIS DECLARATION; WITHDRAWALS 6
SECTION 1. GENERAL DEVELOPMENT PLAN. 6
SECTION 2. THE PROPERTY 7
SECTION 3. ADDITIONS TO THE PROPERTY 7
SECTION 4. WITHDRAWAL 8
ARTICLE III COMMON AREA; COMMUNITY SYSTEMS 8
SECTION 1. COMMON AREAS 8
SECTION 2. LIMITED COMMON AREA. 9
SECTION 3. EASEMENTS FOR USE AND ENJOYMENT OF COMMON
SECTION 4. ASSUMPTION OF RISK. 11
SECTION 5. REDESIGNATION OF COMMON AREAS 12
SECTION 6. CONVEYANCE OF COMMON AREAS AND LIMITED
COMMON AREAS 12
SECTION 7. COMMUNITY SYSTEMS 12
ARTICLE IV MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION 13
SECTION 1. MEMBERSHIP 13
SECTION 2. VOTING RIGHTS 13
SECTION 3. NEIGHBORHOODS 13
ARTICLE V EASEMENTS 14
SECTION 1. EASEMENTS FOR UTILITIES AND COMMUNITY SYSTEMS 14
SECTION 2. EASEMENT FOR ENTRY. 14
SECTION 3. EASEMENT FOR MAINTENANCE 14
SECTION 4. DAMAGES 15
SECTION 5. EASEMENT FOR COLLECTION FOR STORMWATER RUNOFF AND FLOOD WATER 15
SECTION 6. ENCROACHMENTS 15
SECTION 7. EASEMENTS TO SERVICE ADDITIONAL PROPERTY 15
SECTION 8. EASEMENTS FOR CROSS-DRAINAGE 16
SECTION 9. LAKE MAINTENANCE EASEMENT. 16
ARTICLE VI THE ASSOCIATION 16
SECTION 1. FUNCTIONS AND SERVICES 16
SECTION 2. OBLIGATION OF THE ASSOCIATION. 19
SECTION 3. ASSOCIATION ACTIONS REQUIRING APPROVAL. 19
SECTION 4. RECYCLING PROGRAMS 19
SECTION 5. PUBLIC GARDENS AND ENVIRONMENTAL PROGRAMS. 19
SECTION 6. LAKE MAINTENANCE 19
ARTICLE VII COVENANT FOR MAINTENANCE 20
SECTION 1. ASSOCIATION’S RESPONSIBILITY 20
SECTION 2. OWNER’S RESPONSIBILITY. 21
SECTION 3. MAINTENANCE OF NEIGHBORHOODS 21
SECTION 4. NEIGHBORHOOD’S RESPONSIBILITY. 22
SECTION 5. STANDARD OF PERFORMANCE 22
SECTION 6. MAINTENANCE OF LIMITED COMMON AREAS 22
SECTION 7. LAKE MAINTENANCE 22
ARTICLE VIII ASSESSMENTS 22
SECTION 1. CREATION OF ASSESSMENTS 22
SECTION 2. COMPUTATION OF NEIGHBORHOOD ASSESSMENTS 23
SECTION 3. RESERVE BUDGET AND CAPITAL CONTRIBUTION. 24
SECTION 4. SPECIAL ASSESSMENTS. 24
SECTION 5. SPECIFIC ASSESSMENTS 24
SECTION 6. DATE OF COMMENCEMENT OF ASSESSMENTS; DUE DATES 25
SECTION 7. LIENS FOR ASSESSMENTS 25
SECTION 8. SUBORDINATION OF THE LIEN TO FIRST MORTGAGES; MORTGAGEES’ RIGHTS 26
SECTION 9. DECLARANT’S ASSESSMENTS 26
SECTION 10. EXEMPT PROPERTY 27
SECTION 11. INITIAL RECREATION CAPITALIZATION FEE 28
SECTION 12. LAKEWOOD RANCH MASTER PLAN COMMUNITY FEE 28
SECTION 13. RESALE CONTRIBUTION. 28
SECTION 14. PAYMENT OF UNIT REAL ESTATE TAXES 29
ARTICLE IX ARCHITECTURAL REVIEW REQUIREMENTS 29
SECTION 1. THE ARCHITECTURAL REVIEW COMMITTEE 30
SECTION 2. MEMBERSHIP 30
SECTION 3. GENERAL PLAN. 30
SECTION 4. ARCHITECTURAL REVIEW REQUIREMENTS. 30
SECTION 5. QUORUM 31
SECTION 6. POWER AND DUTIES OF THE COMMITTEE. 31
SECTION 7. PROCEDURE 31
SECTION 8. ALTERATIONS 32
SECTION 9. VARIANCES 32
SECTION 10. PERMITS 32
SECTION 11. CONSTRUCTION BY OWNERS AND NEIGHBORHOOD ASSOCIATIONS 32
SECTION 12. INSPECTION. 34
SECTION 13. VIOLATION 34
SECTION 14. COURT COSTS 34
SECTION 15. CERTIFICATE. 34
SECTION 16. CERTIFICATE OF COMPLIANCE 34
SECTION 17. EXEMPTION. 35
SECTION 18. EXCULPATION. 35
ARTICLE X INSURANCE AND CASUALTY LOSSES 35
SECTION 1. ASSOCIATION INSURANCE. 35
SECTION 2. OWNERS INSURANCE 37
SECTION 3. REQUIREMENT TO RECONSTRUCT OR DEMOLISH UNIT 38
SECTION 4. UNIT IN NEIGHBORHOOD ASSOCIATION. 38
SECTION 5. DAMAGE AND DESTRUCTION IN THE COMMUNITY. 38
SECTION 6. DISBURSEMENT OF PROCEEDS 39
SECTION 7. REPAIR AND RECONSTRUCTION 39
SECTION 8. OWNER’S INSURANCE REQUIREMENTS FOR ANY CONSTRUCTION OR RENOVATION. 39
ARTICLE XI CONDEMNATION 40
SECTION 1. GENERAL 40
ARTICLE XII USE RESTRICTIONS 41
SECTION 1. RESIDENTIAL USE 41
SECTION 2. NUISANCES 41
SECTION 3. UNLAWFUL USE 41
SECTION 4. INSURANCE 41
SECTION 5. PETS. 41
SECTION 6. SIGNS 42
SECTION 7. EXTERIOR LIGHTING. 42
SECTION 8. TRAFFIC HAZARDS 42
SECTION 9. SERVICE YARDS 42
SECTION 10. ANTENNAS, OTHER DEVICES 42
SECTION 11. TEMPORARY STRUCTURES 42
SECTION 12. WATER SUPPLY AND SEWERAGE 42
SECTION 13. FUEL STORAGE TANKS 43
SECTION 14. PARKING AND GARAGES 43
SECTION 15. SOLICITING 43
SECTION 16. TREES AND PLANTINGS 43
SECTION 17. FENCES, ENCLOSURES AND WALLS; CLOTHESLINES 43
SECTION 18. MOTOR VEHICLES, TRAILERS, ETC 43
SECTION 19. RECREATION EQUIPMENT 44
SECTION 20. LAWNS AND LANDSCAPING. 44
SECTION 21. SUBDIVISION. 44
SECTION 22. CONSERVATION AREAS 44
SECTION 23. LEASES 44
SECTION 24. WINDOW TREATMENTS 45
SECTION 25. HURRICANE SHUTTERS 45
SECTION 26. GARAGE 45
SECTION 27. IRRIGATION. 45
SECTION 28. GREEN BUILD. 46
SECTION 29. DECLARANT EXEMPTION. 46
ARTICLE XIII DECLARANT’S RIGHTS 46
SECTION 1. DECLARANT’S RIGHTS 46
SECTION 2. COMMON AREAS 47
SECTION 3. DEVELOPMENT, SALES AND CONSTRUCTION EASEMENT. 49
SECTION 4. MODIFICATION. 50
SECTION 5. PROMOTIONAL EVENTS 50
SECTION 6. USE BY PROSPECTIVE PURCHASERS. 50
SECTION 7. ENFORCEMENT AND INACTION. 50
ARTICLE XIV ENFORCEMENT OF COVENANTS AND ABATEMENT OF
SECTION 1. COMPLIANCE BY OWNERS 51
SECTION 2. ACTIONS 51
SECTION 3. RIGHT OF ENTRY. 51
SECTION 4. FINES. 52
SECTION 5. SUSPENSION OF USE & VOTING. 52
SECTION 6. ENFORCEMENT. 53
SECTION 7. COVENANTS 53
ARTICLE XV ASSIGNMENT 54
ARTICLE XVI CONSERVATION AREAS 54
ARTICLE XVII WATER MANAGEMENT SYSTEM 54
SECTION 1. DEDICATION 54
SECTION 2. MAINTENANCE AND MONITORING. 54
SECTION 3. USE RESTRICTIONS 55
SECTION 4. ENFORCEMENT BY DISTRICT 55
SECTION 5. DISSOLUTION OF ASSOCIATION. 55
SECTION 6. COVENANT FOR MAINTENANCE ASSESSMENTS FOR ASSOCIATION. 55
SECTION 7. EASEMENT FOR ACCESS AND DRAINAGE 55
SECTION 8. AMENDMENT 56
ARTICLE XVIII DISCLOSURES 56
SECTION 1. MILDEW 56
SECTION 2. MITIGATION OF DAMPNESS AND HUMIDITY. 56
SECTION 3. WARRANTY DISCLOSURE 56
SECTION 4. UNIT MEASUREMENTS 57
SECTION 5. BUILDING AREA. 57
SECTION 6. SECURITY. 57
SECTION 7. NOTICES AND DISCLAIMERS AS TO COMMUNITY SYSTEMS... 58 SECTION 8. NOTICES AND DISCLAIMERS AS TO WATER BODIES 59
ARTICLE XIX GENERAL PROVISIONS 60
SECTION 1. DURATION. 60
SECTION 2. AMENDMENT 60
SECTION 3. RULES AND REGULATIONS 61
SECTION 4. TERMINATION. 61
SECTION 5. NOTICES 61
SECTION 6. CONTROLLING AGREEMENT. 62
SECTION 7. SEVERABILITY. 62
SECTION 8. PARTITION. 62
SECTION 9. GENDER AND GRAMMAR 62
SECTION 10. CAPTIONS 62
SECTION 11. CONVEYANCES OF COMMON AREA. 62
SECTION 12. MORTGAGEE PROVISIONS 62
SECTION 13. RIGHTS RESERVED FOR DECLARANT WITH RESPECT TO COMMUNITY SYSTEMS 65
SECTION 14. LEGAL ACTIONS BY ASSOCIATIONS 66
SECTION 15. LEGAL ACTIONS BY UNIT OWNERS 66
SECTION 16. INDEMNIFICATION. 66
SECTION 17. RELIANCE 67
TOLL LAKEWOOD RANCH
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF
TOLL LAKEWOOD RANCH (the “Declaration”) is made and executed this day of
, 2017, by [TOLL BROS., INC.], a Pennsylvania corporation, its successors and assigns, hereinafter called “Declarant,” and joined by Toll Lakewood Ranch Homeowners Association, Inc., a Florida not-for-profit corporation (the “Association”).
W I T N E S S E T H :
WHEREAS, Declarant is the owner of the real property within TOLL LAKEWOOD RANCH, a master planned community, which property is described on Exhibit “A” attached hereto and is also described in Article II of this Declaration, and desires to create thereon mutually beneficial restrictions under a general plan of improvement for the benefit of the real property and all of its future owners.
WHEREAS, the Association is joining this Declaration in order to acknowledge its obligations hereunder.
NOW, THEREFORE, Declarant hereby declares that all of the real property described in Article II of this Declaration, together with any improvements constructed or to be constructed thereon, is and shall be owned, held, transferred, sold, conveyed, encumbered, leased, rented, used, occupied and improved subject to the following covenants, conditions, restrictions, easements, assessments and liens all of which are established for the purpose of enhancing and protecting the value, desirability and attractiveness of the real property described in Article II and every part thereof and all of which shall run with the land and the title to the real property subject to this Declaration and shall be binding upon all parties having or acquiring any right, title or interest therein.
The following words, when used in this Declaration or any Supplemental Declaration, shall have the following meanings:
1. “Architectural Review Requirements” means the design criteria and building guidelines promulgated by the Architectural Review Committee as more particularly described in Article IX of this Declaration.
2. “Area(s) of Common Responsibility” means the Common Area, together with those areas, if any, which by the terms of this Declaration, any Supplemental Declaration (as hereinafter defined), other applicable covenants, or by contract become the responsibility of the Association.
3. “Articles” means the Articles of Incorporation of Toll Lakewood Ranch Homeowners Association, Inc., attached hereto as Exhibit “B”.
4. “Association” means Toll Lakewood Ranch Homeowners Association, Inc., a Florida not-for-profit corporation, its successors and assigns. The Association is NOT a condominium association and is not intended to be governed by Chapter 718, the Condominium Act, Florida Statutes.
5. “Base Assessment” means assessments levied on all Units subject to assessment under Article VIII to fund Common Expenses for the general benefit of all Units, as more particularly described in Article VIII.
6. “Board of Directors” or “Board” mean the members of the Board of Directors of the Association as from time to time elected or appointed.
7. “Builder” means any Person which purchases one or more Units for the purpose of constructing improvements for later sale to consumers or parcels of land within the Community for further subdivision, development, and/or resale in the ordinary course of such Person’s business.
8. “Bylaws” means the Bylaws of the Association, attached hereto as Exhibit “C”.
9. “Common Areas” means all real and personal property within the Community, which are declared herein or in any Supplemental Declaration to be the “Common Areas” or on any recorded subdivision plat of the Community, and all improvements thereto, which are designated for the use and enjoyment of all Owners, or which are otherwise dedicated, conveyed, leased or for which a license or use right is granted to the Association and which are intended to be devoted to the common use and enjoyment of some or all of the Owners, as more specifically provided herein. Each Common Area shall be designated, dedicated, conveyed, leased, licensed or have a use right granted to the Association at such time as is provided in the instrument that designates, dedicates, conveys, leases, licenses or grants a use right for such area of land to the Association. As used herein, “Common Areas” shall include, among other things, (i) all improvements and equipment located in or on the Common Areas, including, without limitation, private roadways, signage, gate houses, entry features, swales and berms, pedestrian paths and irrigation systems, (ii) any pools, recreational facilities, clubhouses and parking facilities designated as Common Areas in this Declaration, any Supplemental Declarations or on the Plat, (iii) the Surface Water Management System, as permitted by SWFWMD, including, but not limited to, all lakes, retention areas, Conservation Areas, water management areas, ditches, culverts, structures and related appurtenances, but shall exclude (x) any public utility installation located in or on the Common Areas thereon, including but not limited to water and sewer infrastructure (to the extent not conveyed to the County)
(y) all portions of any Community Systems (as defined below), unless specifically designated as part of the Common Areas pursuant to a Supplemental Declaration by the Declarant, and (vi) any other property of Declarant not intended to be made Common Areas.
10. “Common Expenses” means the actual and estimated expenses of operating the Association, including, but not limited to, maintenance of the Common Areas, and Area(s) of Common Responsibility, services and any reasonable reserve, all as may be found necessary and appropriate by the Board pursuant to this Declaration, the Articles and the Bylaws. Common Expenses shall include but not be limited to costs and expenses incurred or expended by the Association for operation, maintenance and management of the Property for the maintenance, repair and/or replacement of roads, or other improvements benefiting the Property or any part thereof, property taxes and assessments against the Property (until such time as any of such taxes and assessments are made against the Units individually and thereafter only as to such taxes or
assessments, if any, as may be assessed against the Property as a whole), insurance premiums as described in Article X, legal and accounting fees, management fees and operating expenses of the Property and the Association; maintenance, repairs and replacement (but only as to the Common Areas and Limited Common Areas, except for emergency repairs or replacements to individual Units deemed necessary to protect the Common Areas and if properly chargeable to the individual Unit concerned the Association may nevertheless thereafter charge such individual Unit Owner concerned), charges for utility, water and sewer used in common for the benefit of the Units and the Property and if not separately metered for each Unit and any bulk metered or bulk calculated utility services rendered to the Property or the Units for their benefit, cleaning and janitorial services for the Common Areas and Limited Common Areas, and liability incurred by the Association in and about the enforcement of its rights and duties against the members or others, and the creation of reasonable contingency or reserve requirements for the protection of the members and the Property (i.e., reserves for replacements, operating reserve to cover deficiencies and unforeseen contingencies if such reserves are not waived), and all other expenses declared by the Board of Directors of the Association to be Common Expenses from time to time, and any and all other sums due from the Association under any lease, contract or undertaking for recreational facilities.
11. “Community” and/or “Property” means the real property and all other property described in Exhibit “A” attached hereto and incorporated herein by reference and interests therein, which is subject to this Declaration, together with such additional property now or hereafter made subject to this Declaration in accordance with Article II.
12. “Community Systems” means and refers to any and all television (cable, satellite or otherwise), telecommunication, alarm/monitoring, electronic surveillance and/or monitoring systems intended to control access, internet, telephone, utility or other lines, conduits, wires, amplifiers, towers, antennae, satellite dishes, equipment, materials, installations and fixtures (including those based on, containing and serving future technological advances not now known), installed by Declarant, the Association or a third party provider, or pursuant to any grant of easement or authority by Declarant and/or the Association within the Community.
13. “Community-Wide Standard” means the standard of conduct, maintenance or other activity specifically determined by the Board of Directors or its committees.
14. “Conservation Areas” means those protected areas required by SWFWMD for the Community, including, but not limited to wetland preservation areas, mitigation areas and upland buffers which are protected under conservation easements created pursuant to Section 704.06, Florida Statutes.
15. “County” means Manatee County, Florida.
16. “Declarant” means [TOLL BROS., INC.], a Pennsylvania corporation, its successors and assigns; provided, however, that any successor or assign shall acquire for the purpose of development or sale any or all portion of the remaining undeveloped or unsold portions of the Property and, provided further, in the instrument of conveyance to any such successor or assign, such successor or assign is designated as the “Declarant” hereunder by the grantor of such conveyance, which grantor shall be the “Declarant” hereunder at the time of such conveyance; provided further, upon such designation of such successor Declarant, all rights of the former Declarant in and to such status as “Declarant” hereunder shall cease, it being understood as to all of the Property, which is
now subject to this Declaration, there shall be no more than one person or legal entity entitled to exercise the rights and powers of the “Declarant” hereunder at any time.
17. “Home” shall mean a residential dwelling unit constructed within the Community which is designed and intended for use and occupancy as a single-family residence and includes but is not limited to a detached single-family home, a zero lot line single family home, a residential unit contained in a townhouse or high-rise building, whether such residential unit is subject to condominium form of ownership, owned in fee simple or another form of ownership or possession, and includes any interest in land, Improvements, or other property appurtenant to the Home; provided, however, that no portion of any Community System, even if installed in a Home, shall be deemed to be a part of a Home unless and until the Association provides otherwise, if at all. The term “Home” may not reflect the same division of property as reflected on a Plat
18. “Improvement(s)” shall mean all structures or artificially created conditions and appurtenances thereto of every type and kind, whether existing or hereafter constructed, located within the Community, including, but not limited to, buildings, walkways, recreation areas and facilities, parking areas, berms, fountains, sprinkler pipes, gatehouses, roads, driveways, fences, retaining walls, underground footers and other foundation supports, stairs, landscaping, hedges, plantings, water bodies, water features, poles, swings, tennis courts, swimming pools, covered patios, screen enclosures, jogging, bicycling and walking paths, basketball backboards and hoops, signs, site walls, benches, mailboxes, decorative street lights and signs.
19. “Limited Common Area” means any and all real and personal property, easements, improvements, facilities and other interest, as more particularly described in Article III, Section 2 of this Declaration, which are reserved for the use of Owner(s) and/or Neighborhood(s) of certain Units to the exclusion of other Owner(s) and/or other Neighborhoods of certain Units.
20. “Master Plan” means the Master Concept Plan for the development of the Community dated [ ] (as amended and approved by Manatee County, Florida on [ ]), prepared by [ ], as it may be amended, which plan includes the property described on Exhibit “A”. Inclusion of property and improvements on the Master Plan shall not, under any circumstances, obligate Declarant to add said property and/or construct the improvements reflected on the Master Plan.
21. “Member” means all those Owners who are members of the Association as provided in Article IV, Section 1, hereof.
22. “Neighborhood” means two or more Units which share interests other than those common to all Units, as more particularly described in Article IV, Section 3. By way of illustration and not limitation, a condominium, townhome development, cluster home development or single- family detached housing development might each be designated as a separate Neighborhood, or a Neighborhood may be comprised of more than one housing type with other features in common. In addition, each parcel of land intended for development as any of the above shall constitute a Neighborhood, subject to division into more than one Neighborhood upon development. Where the context permits or requires, the term “Neighborhood” shall also refer to the Neighborhood Committee, if any, established in accordance with the Bylaws, or the Neighborhood Association established to act on behalf of the assessments levied on behalf of the Owners of Units within the Neighborhood. Neighborhood boundaries may be established and modified as provided in Article IV, Section 3.
23. “Neighborhood Assessments” means assessments levied against the Units in a particular Neighborhood or Neighborhoods to fund Neighborhood Expenses, as described in Article VIII, Section 2.
24. “Neighborhood Association” means any condominium association or other owners association having concurrent jurisdiction over any Neighborhood.
25. “Neighborhood Expenses” means the actual and estimated expenses incurred or anticipated to be incurred by the Association for the benefit of the Owners and occupants of Units within a particular Neighborhood or Neighborhoods which may include a reasonable reserve for capital repairs and replacements, as the Board may specifically authorize and as may be authorized herein or in Supplemental Declarations applicable to the Neighborhoods.
26. “Owner” means the record owner, whether one or more persons or entities, of the fee simple title to any Unit or other property located within the Community, excluding, however, the Association and any person holding such interest merely as security for the performance or satisfaction of an obligation.
27. “Permit” or “Permits” shall mean all permits, authorizations, licenses, development approvals and other approvals pertaining to the Community pertaining to the Property.
28. “Person” means any natural person, as well as a corporation, joint venture, partnership (general or limited), association, trust or other legal entity.
29. “Plat” means any Plat or Replat of the Community or any portion thereof now or hereafter recorded, including, without limitation, that certain Plat of Toll Lakewood Ranch Phase 1 recorded as Instrument #[ ], of the Public Records of Manatee County, Florida.
30. “Rules and Regulations” means the procedures for administering the Association, the Community, and the use of the Common Areas, as adopted by resolution of the Board of Directors.
31. “Special Assessment” means assessments levied in accordance with Article VIII, Section 4 of this Declaration.
32. “Specific Assessment” means assessments levied in accordance with Article VIII, Section 5 of this Declaration.
33. “Supplemental Declaration” means an amendment or supplement to this Declaration filed pursuant to Article II which subjects additional property to this Declaration and/or imposes, expressly or by reference, additional restrictions and obligations on the land described therein.
34. “SWFWMD” shall mean the Southwest Florida Water Management District.
35. “Toll Lakewood Ranch” is the name of the Community.
36. “Turnover Date” shall mean the date upon which Declarant relinquishes control of the Association to the Members, which shall be the earliest of the following to occur: (1) three (3) months after ninety percent (90%) of the Units in the Community that will ultimately be operated by the Association have been conveyed to Owners other than Declarant or a Builder; (2) on that date
which shall be twenty (20) years from the date upon which this Declaration shall be recorded in the public records; (3) when Declarant elects, in its sole discretion, to relinquish control of the Association to the Members; (4) upon Declarant abandoning or deserting its responsibility to maintain and complete the amenities or infrastructure as disclosed in the governing documents of the Community; (5) upon Declarant filing a petition seeking protection under Chapter 7 of the federal Bankruptcy Code; (6) upon Declarant losing title to the Property through a foreclosure action or the transfer of a deed in lieu of foreclosure, unless the successor owner has accepted an assignment of developer rights and responsibilities first arising after the date of such assignment; or (7) upon a receiver for Declarant being appointed by a circuit court and not being discharged within thirty (30) days after such appointment, unless the court determines within thirty (30) days after such appointment that transfer of control would be detrimental to the Association or its members.
37. “Unit” means a portion of the Community, whether improved or unimproved, which may be independently owned and conveyed and which is intended for development, use, and occupancy as an attached or detached residence for a single family. The term shall refer to the land, if any, which is part of the Unit as well as any improvements thereon. The term shall include, by way of illustration but not limitation, townhouse units, villas, cluster homes, patio or zero lot line homes, and single-family detached houses on separately platted lots, as well as vacant land intended for development as such, but shall not include Common Areas, common property of any Neighborhood Association, or property dedicated to the public. In the case of a building within a townhome or other structure containing multiple dwellings, each dwelling shall be deemed to be a separate Unit.
In the case of a parcel of vacant land or land on which improvements are under construction, the parcel shall be deemed to contain the number of Units designated for residential use for such parcel on the Master Plan or the site plan approved by Declarant, whichever is more recent, until such time as a subdivision plat is filed of record on all or a portion of the parcel. Thereafter, the portion encompassed by such plat shall constitute a separate Unit or Units as determined above and the number of Units on the remaining land, if any, shall continue to be determined in accordance with this paragraph.
38. “Water Management System” shall mean and refer to the surface water management system and storm water management system for the Community including, but not limited to, all on- site and off-site inlets, ditches, swales, culverts (including the off-site culvert system conveying discharge to the downstream receiving conveyance system), water control structures, retention and detention areas, ponds, lakes, flood plain compensation areas, wetlands, and any associated buffer areas, and wetland mitigation areas, which is designed and constructed or implemented to control discharges which are necessitated by rainfall events, incorporating methods to collect, convey, store, absorb, inhibit, treat, use or reuse water to prevent or reduce flooding, over drainage, environmental degradation and water pollution or otherwise affect the quantity and quality of discharges.
PROPERTY SUBJECT TO THIS DECLARATION; WITHDRAWALS
Section 1. General Development Plan. ANY SITE PLAN OF THE COMMUNITY IS CONCEPTUAL ONLY AND FOR THE CONVENIENCE OF REFERENCE. IT SHOULD NOT BE RELIED UPON AS REPRESENTATION, EXPRESS OR IMPLIED, OF THE FINAL SIZE, LOCATION OR DIMENSIONS OF ANY LOT OR BUILDING AREA. THE DECLARANT
EXPRESSLY RESERVES THE RIGHT TO MAKE ANY MODIFICATIONS, REVISIONS, AND CHANGES IT DEEMS DESIRABLE IN ITS SOLE AND ABSOLUTE DISCRETION OR AS MAY BE REQUIRED BY LAW OR GOVERNMENTAL BODIES.
The Association is not a condominium association and therefore shall not be governed by the provisions of Chapter 718, Florida Statutes, but rather shall be governed by Chapter 720, Florida Statutes, as enacted on the date this Declaration is recorded in the public records of the County, and shall in all respects permissible not be subject to subsequent amendments made to said Chapter 720, Florida Statutes, except as otherwise provided herein. This Declaration is not a declaration of condominium.
Section 2. The Property. The real property which is, and shall be, held, transferred, sold, conveyed and occupied subject to this Declaration is described on Exhibit” A” attached hereto and made a part hereof (the “Property”).
Section 3. Additions to the Property Additional lands may become subject to this Declaration as follows:
(a) Declarant, together with the owner of fee simple title to the property involved if other than Declarant, shall have the right to bring additional properties within the operation of this Declaration to become part of the Community without the consent or joinder of any other Person being required, by filing a Supplemental Declaration in the Public Records of the County.
(b) Additionally, Declarant shall have the right to bring additional properties within the operation of this Declaration to become part of the Community without the consent or joinder of any other Person being required to accomplish the following purposes:
(i) to include within the Community any portions of any rights-of-way which become abandoned and which abut the Community, or to otherwise move the boundary lines of the Community such that at locations where possible, the boundary lines abut public ways; and
(ii) to include within the Community the situs of lands containing easement ways for ingress and egress and the swale areas of such easement ways which connect any private road system within the Community to the public way.
(c) An Owner, other than Declarant, of any land who desires to add it to the scheme of this Declaration and to subject it to the jurisdiction of the Association may file of public record a Supplemental Declaration declaring its intention and containing the legal description of the lands to be added upon approval in writing of the Association pursuant to a majority vote of its members; provided, so long as Declarant owns a Unit in the Community for the sale in the ordinary course of business, then there shall be no additions to the Community (other than as permitted under paragraphs (a) and (b) above and paragraph (d) below), unless the Declarant joins the majority of Owners in approving such addition.
(d) Upon a merger or consolidation of the Association with another association, the Association’s properties, rights and obligations may, by operation of law, be transferred to another surviving or consolidated association or, alternatively, the properties, rights and obligations of another association may, by operation of law, be added to the properties, rights and obligations of the Association as a surviving corporation pursuant to merger. The surviving or consolidated
association may administer the covenants, restrictions and conditions established by this Declaration within the Community, together with the covenants, conditions and restrictions established upon any other property as one scheme. No such merger or consolidation, however, shall effect any revocation, change or addition to the covenants established by this Declaration within the Community.
(e) At the time any additional lands are made subject to this Declaration, Declarant may also record an instrument which:
(i) modifies any of the provisions of this Declaration insofar as they may apply to such additional lands only; or
(ii) creates new provisions applicable only to such additional lands; or
(iii) omits the applicability of any of the provisions of this Declaration as to any such additional lands; or
(iv) does any, all or none of the above.
(f) The execution and recordation of this Declaration shall not be construed to require Declarant to subject any additional lands to the covenants, conditions and restrictions or other provisions of this Declaration or any other recorded instrument.
Section 4. Withdrawal. Declarant reserves the right to amend this Declaration at any time, without prior notice and without the consent of any Person, for the purpose of removing certain portions of the Community then owned by the Declarant or its affiliates or the Association from provisions of this Declaration to the extent included originally in error or as a result of any changes whatsoever in the plans for the Community desired to be effected by Declarant; provided, however, such withdrawal is not unequivocally contrary to the overall, uniform scheme of development for the Community. Any withdrawal of land not owned by Declarant shall require the written consent or joinder of the then-owner(s) and mortgagee(s) of such land, but not of any others. Notwithstanding the foregoing, no withdrawal which effects the operation and maintenance of the surface water management system shall be made without the consent of the SWFWMD.
Section 1. Common Areas. The Common Areas are as designated on the Plat, in this Declaration, or in any other documents recorded from time to time by the Declarant. Declarant shall have the right to add property to the Common Areas at Declarant’s sole option and in its sole discretion. Declarant hereby initially designates the following tracts on the Plat as the Common Areas for the use and benefit of all Owners within the Community:
(i) Tracts Phase I recorded as Instrument #[ Florida.
] of the
on the Plat of Toll Lakewood Ranch Public Records of Manatee County,
(ii) [The amenity pool, clubhouse and tennis courts], depicted in the site plan attached hereto as Exhibit “F”.
The Declarant may, but is not obligated, in its sole discretion, to construct a guardhouse and/or gated entry at the entrance of the Community and convey such guardhouse and/or gated entry to the Association. If the guardhouse and/or gated entry is constructed and conveyed to the Association, the Association shall thereafter maintain the guardhouse and/or gated entry, including, but not limited to, paying the cost of any such personnel stationed at such guardhouse. The Declarant may, but is not obligated, in its sole discretion, to construct signage at the entrance of the Community which identifies the Community and includes a notation indicating that the Community was developed “by Toll Brothers” (or some similar reference to Declarant or an entity affiliated with Declarant), including the use of any particular logos and/or trademarks utilized by Declarant, and convey such signage to the Association along with a non-exclusive license to use the logos and/or trademarks depicted on the signage (but only for purposes of maintaining such logos/trademarks in the manner depicted on the signage at the time of conveyance and for no other purpose, such license being revocable by Declarant at any time). If the signage is constructed and conveyed to the Association, the Association shall thereafter perpetually maintain such signage, including perpetually maintaining the notation that the Community was developed “by Toll Brothers” (or some similar reference to Declarant or an entity affiliated with Declarant) in the same presentation as was utilized when such signage was conveyed to the Association, until such time as the Declarant may determine, in its sole discretion, that it no longer wishes to be referenced on the signage (upon which the Association shall, at its own expense, remove such reference). The Declarant shall have the right in its sole discretion to convey additional real estate improved or unimproved and/or personal property as additional Common Area which conveyance or dedication to the Association shall be accepted by the Association and thereafter shall be maintained by the Association at its expense for the benefit of the Members. The boundaries of the Common Area may from time to time be modified by Declarant as deemed necessary or appropriate by Declarant for development and sale of the Community. The Association shall, without approval of a Person, execute any such instrument deemed necessary to accomplish any boundary modification.
Section 2. Limited Common Area. Certain portions of the Community may be designated by Declarant in its sole and absolute discretion as Limited Common Area and reserved for the exclusive use or primary benefit of the Owners, occupants and invitees of certain Units and/or Neighborhoods. By way of illustration and not limitation, Limited Common Areas may include entry features, recreational facilities, landscaped medians and cul-de-sacs, and lakes. Except as otherwise provided herein, all costs associated with the maintenance, repair, replacement, and insurance of Limited Common Areas shall be assessed as a Special Assessment against the Owners of those Units to which the Limited Common Area is assigned. Declarant initially designates the areas listed on Exhibit “D” attached as Limited Common Areas, although the Declarant reserves the right in its sole discretion to subsequently designate any additional Limited Common Areas and assign the exclusive use thereof in Supplemental Declaration(s), the deed conveying the Common Area to the Association, or on the Plat relating to such Common Area; provided, any such assignment shall not preclude the Declarant from later assigning use of the same Limited Common Area to additional Units and/or Neighborhoods, so long as the Turnover Date has not occurred. Thereafter, a portion of the Common Area may be assigned as Limited Common Area of a particular Neighborhood or Neighborhoods and Limited Common Area may be reassigned upon the vote of a majority of the total Class “A” votes in the Association, including a majority of the Class “A” votes within the Neighborhood(s) to which the Limited Common Areas are assigned, if applicable, and within the Neighborhood(s) to which the Limited Common Areas are to be assigned. As long as the Declarant owns any property in the Community for development and/or sale, any such assignment or reassignment shall also require the Declarant’s consent.
The Association may, upon approval of a majority of the members of the Neighborhood Committee or board of directors of the Neighborhood Association for the Neighborhood(s) to which certain Limited Common Areas are assigned, permit Owners of Units in other Neighborhoods to use all or a portion of such Limited Common Areas upon payment of reasonable user fees, which fees shall be used to offset the Neighborhood Expenses attributable to such Limited Common Areas.
The Limited Common Area shall be designated on the Plat, or in other documents recorded from time to time by the Declarant, including in a Supplemental Declaration. The Association may adopt Rules and Regulations which govern among other things the use of the Limited Common Area. The Declarant shall have the right in its sole discretion to convey additional real estate, improved or unimproved and/or personal property as additional Limited Common Area which conveyance or dedication to the Association shall be accepted by the Association and thereafter shall (except as may otherwise be set forth herein) be maintained by the Association at its expense for the benefit of the Members, or by the Unit Owners to which the Limited Common Area(s) are assigned.
Section 3. Easements for Use and Enjoyment of Common Areas. Every Owner of a Unit shall have a right to and easement of ingress and egress, use and enjoyment in and to the Common Areas which shall be appurtenant to and shall pass with the title to the Unit, subject to the following provisions:
(i) the right of the Association to borrow money for the purpose of improving the Common Areas, or any portion thereof or for construction, repairing or improving any facilities located or to be located thereon, and give as security for the payment of any such loan a mortgage encumbering all or any portion of the Common Areas; provided, the lien and encumbrance of any such mortgage given by the Association shall be subject and subordinate to any rights, interests, options, easements and privileges herein reserved or established for the benefit of Declarant or any Owner, or a holder of any mortgage, irrespective of when executed or given by Declarant or any Owner, encumbering any Unit or other property located within the Community;
(ii) the right of the Association to grant easements across the Common Areas to Persons who are not Owners;
(iii) the right of the Association to dedicate or transfer all or any portion of the Common Areas subject to such conditions as may be agreed to by a majority of the Members of the Association and subject to the approval requirements of Declarant;
(iv) this Declaration, the Bylaws and any other applicable covenants;
(v) any restrictions or limitations contained in any deed conveying such property to the Association;
(vi) the right of the Board to adopt rules regulating the use and enjoyment of the Common Area, including rules restricting use of recreational facilities within the Common Area to occupants of Units and their guests and rules limiting the number of guests who may use the Common Area;
(vii) the right of the Board to levy reasonable fines, as further provided in Section 4 of Article XIV of this Declaration, in an amount not to exceed $100 per violation against an Owner and/or any tenant, guest or invitee; provided that that a fine may not be imposed without an
opportunity for notice and hearing pursuant to paragraphs (a) and (b) of Section 4.23 of the Bylaws and Section 4 of Article XIV of this Declaration;
(viii) the right of the Board to suspend the right of an Owner and/or any tenant, guest or invitee to use Common Areas and recreational facilities within the Common Areas, and the right of the Board to suspend the voting rights of an Owner, for the failure to pay any monetary obligation imposed against such Owner or such Owner’s Unit that remains delinquent for more than ninety (90) days, said suspension to be in force until such time as the obligation is paid in full; and
(ix) the right of the Board to permit use of any recreational facilities situated on the Common Area by a person other than Owners, their families, lessees and guests upon payment of use fees established by the Board.
Any Owner may delegate his or her right of use and enjoyment in and to the Common Areas and facilities located thereon to the members of his/her family, tenants, guest and invitees.
Section 4. Assumption of Risk. Without limiting any other provision herein, each person within any portion of the Community, including but not limited to the Common Areas, Limited Common Areas or Areas of Common Responsibility (“User”) accepts and assumes all risk and responsibility for noise, liability, injury, or damage connected with use or occupation of any portion of the Community, including, without limitation, (a) noise from maintenance equipment, (b) use of pesticides, herbicides and fertilizers as permitted by applicable law, (c) view restrictions caused by maturation of trees or shrubs, (d) reduction in privacy caused by the removal or pruning of shrubbery or trees, and (e) design of any portion of the Common Areas or Areas of Common Responsibility. Each Owner and User also expressly indemnifies and agrees to hold harmless Declarant, the Association, and all employees, directors, representatives, officers, agents, affiliates, attorneys and partners of the foregoing (the “Indemnified Parties”) from any and all actions, injury, claims, loss, liability, damages, costs and expenses of any kind or nature whatsoever (“Losses”) incurred by or asserted against any of the Indemnified Parties from and after the date hereof, whether direct, indirect or consequential, including without limitation, attorneys’ fees, paraprofessional fees, and costs at trial and upon appeal, arising from or related to use of the Community, including, but not limited to the Common Areas, Limited Common Areas or Areas of Common Responsibility, by Owners, Users and/or their guests, family, members, invitees or agents, or the interpretation of this Declaration and/or exhibits attached hereto and/or from any act or omission of any of the Indemnified Parties. Should any Owner bring suit against any of the Indemnified Parties for any claim or matter and fail to obtain judgment therein against such Indemnified Parties, such Owner shall be liable to such parties for all Losses, costs and expenses incurred by the Indemnified Parties in the defense of such suit, including but not limited to, attorneys’ fees and paraprofessional fees at trial and upon appeal. Without limiting the foregoing, all Users using any portion of the Community, including but not limited to the Common Areas, Limited Common Areas and Areas of Common Responsibility, including without limitation, any pool, do so at their own risk. BY ACCEPTANCE OF A DEED, EACH OWNER ACKNOWLEDGES THAT THE COMMUNITY MAY CONTAIN WILDLIFE SUCH AS, AMONG OTHER THINGS, ALLIGATORS, FISH, INSECTS, SNAKES, RACCOONS, DEER, FOWL AND FOXES. DECLARANT AND THE ASSOCIATION SHALL HAVE NO RESPONSIBILITY FOR MONITORING SUCH WILDLIFE OR NOTIFYING OWNERS OR OTHER PERSONS OF THE PRESENCE OF SUCH WILDLIFE. EACH OWNER AND HIS OR HER GUESTS AND INVITEES ARE RESPONSIBLE FOR THEIR OWN SAFETY.
Section 5. Redesignation of Common Areas. Notwithstanding anything contained herein to the contrary and provided that the Master Plan of the Community is not substantially modified, Declarant shall have the right, in its reasonable discretion, to alter or modify the Common Areas and any improvements, easements and use rights thereon or appurtenant thereto, including, but not limited to, the right to redesignate, modify, alter, increase or decrease (collectively, “Redesignate”) the specified uses(s) of any Common Areas in any manner deemed reasonably appropriate by Declarant without the consent of the Association, Neighborhood Associations, Owners, or any lenders for so long as Declarant shall own any portions of the Property. In the event Declarant exercises its right to Redesignate the specified use(s) of the Common Areas, Declarant shall record an amendment to this Declaration in the public records, setting forth the portion of the Common Area subject to redesignation and the redesignated use thereof.
Section 6. Conveyance of Common Areas and Limited Common Areas.
At any time as determined by Declarant in its sole discretion, all or portions of the Common Areas and Limited Common Areas may be dedicated by plat, created in the form of easements or conveyed by Quitclaim Deed from Declarant to the Association. The dedication, creation by easement or conveyance shall be subject to the terms and provisions of this Declaration and all other Community documents; easements, restrictions, reservations, conditions, limitations and/or declarations of record or common to the Community; real estate taxes for the year of recordation of this Declaration and subsequent years; and zoning, land use regulations, and survey matters. The Association shall be deemed to have assumed and agreed to pay all continuing obligations and any and all service and similar contracts relating to the ownership, operation, maintenance and administration of the conveyed portions of the Common Areas and any and all other obligations relating thereto, and the Association shall and does indemnify and hold Declarant harmless from and against same. The Association by its joinder in this Declaration, hereby accepts such dedication(s) or conveyance(s) without setoff, condition or qualification of any nature. The Common Areas, Limited Common Areas and the personal property and equipment thereon and appurtenances thereto shall be dedicated or conveyed in “as is, where is” condition WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, IN FACT OR BY LAW, AS TO THE CONDITION, FITNESS OR MERCHANTABILITY OF THE COMMON AREA OR LIMITED COMMON AREA BEING CONVEYED.
Section 7. Community Systems. The Declarant shall have the right, but not the obligation, to install and provide Community Systems and to provide the services available through the Community Systems to any and all Units within the Community. If the Declarant installs and provides the Community Systems, neither the Association nor any Owner shall have any interest in the Community Systems. Any or all of such services may be provided either indirectly, through the Association and paid for as a Common Expense, or directly, by the Declarant, an affiliated entity or a third party and paid for by the recipient of the services. The Community Systems shall be the property of the Declarant (or an affiliated entity) unless transferred by the Declarant (or such affiliated entity), whereupon any proceeds of such transfer shall belong to the Declarant (or such affiliated entity). The Declarant shall have the right, but not the obligation, to convey, transfer, sell or assign all or any portion of the Community Systems, or all or any portion of the rights, duties or obligations with respect thereto to the Association or any other Person (including an Owner, as to any portion of the Community System located on such Owner’s Unit).
ALL PERSONS ARE HEREBY NOTIFIED THAT THE ASSOCIATION MAY BE A PARTY TO A CONTRACT FOR
THE COMMUNITY SYSTEMS SERVING THE COMMUNITY FOR A TERM WHICH EXTENDS BEYOND THE TURNOVER DATE AND THAT, IF SO PROVIDED IN SUCH CONTRACT, THE ASSESSMENTS PAYABLE AS TO EACH UNIT WILL INCLUDE CHARGES PAYABLE BY THE ASSOCIATION UNDER SUCH CONTRACT, REGARDLESS OF WHETHER OR NOT THE OWNER OR MEMBERS OF SUCH UNIT ELECT TO RECEIVE THE COMMUNITY SYSTEMS.
MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION
Section 1. Membership. Every Person, including Declarant, who is a record owner of a fee or undivided fee interest in any Unit in the Community shall be a Member of the Association, provided that any Person who holds such interest merely as a security for the performance of an obligation shall not be a Member. Change of membership shall be established by recording in the Public Records of the County a deed or other instrument which conveys fee title to a Unit within the Community, and by the delivery to the Association of a copy of such recorded instrument. If a copy of said instrument is not delivered to the Association, the new Owner shall become a Member, but shall not be entitled to voting privileges. Membership in the Association by all Owners is mandatory and automatic with the ownership of any Unit and is appurtenant to, runs with, and shall not be separated from, the Unit upon which membership is based.
Section 2. Voting Rights. The Association shall have two (2) classes of membership, Class “A” and Class “B”, as follows:
(a) Class “A”. Class “A” Members shall be all Owners, with the exception of the Declarant. Class “A” Members shall be entitled to one (1) equal vote for each Unit owned in the Community. When more than one (1) person holds an ownership interest in any Unit, all such persons shall be Members, provided that only one vote may be cast on behalf of all such Members holding an ownership interest in any one Unit. The vote for such Unit shall be exercised as those Owners themselves determine and advise the Secretary prior to any meeting. In the absence of such advice, the Unit’s vote shall be suspended in the event more than one (1) person seeks to exercise it.
(b) Class “B”. The sole Class “B” Member shall be the Declarant. The rights of the Class “B” Member, including the right to approve or withhold approval of actions proposed under this Declaration and the Bylaws, are specified elsewhere in the Declaration and the Bylaws. The Class “B” Member may appoint a majority of the members of the Board prior to the Turnover Date. Following the Turnover Date, the Declarant shall have a right to disapprove actions of the Board and committees as provided in Section 4.18 of the Bylaws. Additionally, prior to the Turnover Date, the Class “B” Member shall be entitled to ten (10) votes for each Unit owned. After the Turnover Date, the Declarant shall be entitled to one (1) vote for each Unit owned.
Section 3. Neighborhoods.
The Declarant shall have the right to establish Neighborhoods, however, a Neighborhood Association shall not be required except in the case of a condominium or as otherwise required by law. The Owners of Units within any Neighborhood which does not have a Neighborhood Association may elect a Neighborhood Committee to represent the interests of such Owners. The
Declarant may unilaterally amend this Declaration or record any Supplemental Declaration to identify any Neighborhood(s) or designate and/or redesignate any Neighborhood boundaries; provided, two or more Neighborhoods shall not be combined without the consent of Owners of a majority of the Units in the affected Neighborhoods.
Any Neighborhood may request that the Association provide a higher level of services or special services for the benefit of the Units in such Neighborhood and, upon the affirmative vote, written consent, or a combination thereof, of the Owners of a majority of Units within the Neighborhood, the Association shall provide the requested services. The cost of such services shall be assessed against the Units within such Neighborhood as a Neighborhood Assessment pursuant to Article VIII.
In addition to the easements which appear on the Plat, the respective rights and obligations of the Unit owners, the Association, Declarant and others concerning easements affecting the Community shall include the following, which may not be removed except as authorized herein:
Section 1. Easements for Utilities and Community Systems. Declarant hereby reserves for the benefit of itself, its successors and assigns and the Association, perpetual blanket easements upon, across, above and under the Community, which easements shall be for access, ingress, egress, installation, construction, repair, operation, maintenance, expansion and replacement of utility services and Community Systems for the Community or any portion thereof, including, but not limited to water, sewer, gas, drainage, irrigation, fire protection, electricity, any Community Systems, and other services, such as trash disposal roads and walkways. This easement shall not entitle the holders to construct or install any drainage systems, facilities or utilities over, under or through any existing Unit, except as may be temporarily necessary for utility installation, and any damage to a Unit resulting from the exercise of this easement shall promptly be repaired by and at the expense of the Person exercising this easement. The exercise of this easement shall not unreasonably interfere with the use of any Unit and, except in an emergency, entry onto any Unit shall be made only after reasonable notice to the Owner or to the occupant of the Unit. Use of the Community for utilities, as well as use of the other utility easements as shown on relevant plats, shall be in accordance with the applicable provisions of this Declaration and said plats.
Section 2. Easement for Entry. The Association shall have an easement to enter into any Unit for emergency, security, safety and for other purposes reasonably necessary for the proper maintenance and operation of the Community, which right may be exercised by the Board of Directors, officers, agents, employees, managers, and all policemen, firemen, ambulance personnel and similar emergency personnel in the performance of their respective duties. Except in an emergency situation, entry shall only be during reasonable hours and after 24 hours’ notice to the Owner. This right of entry shall include the right of the Association to enter a Unit to cure any condition which may increase the possibility of a fire or other hazard in the event an Owner fails or refuses to cure the condition upon the request by the Board.
Section 3. Easement for Maintenance. The Association shall have a non-exclusive and perpetual easement to enter upon, across, above and under each Unit within the Community, including the Common Areas and Limited Common Areas, at reasonable hours to perform its responsibilities of maintenance, inspection and repair, including, without limitation, the right to enter
upon each Unit for the purpose of maintaining and landscaping the yards of all Units and for the purposes of exterior pest control. Notwithstanding the foregoing, the parties acknowledge and agree that the Association shall not have the right to enter into the courtyard of any Unit, except in the case of an emergency, and the Owners shall be responsible for the maintenance of all landscaping in said courtyards.
Each Owner of a Unit shall have a non-exclusive and perpetual easement to enter upon and across the Units adjacent to such Owner’s Unit, at reasonable hours, to perform its responsibilities of maintenance, landscaping, inspection and repair of said Owner’s Unit.
Section 4. Damages. The use of any easement granted under the provisions of this Article shall not include the right to disturb any building or structure in the Community, and any damage caused to same shall be repaired at the expense of the party causing such damage.
Section 5. Easement for Collection for Stormwater Runoff and Flood Water. The Declarant reserves for itself, its successors and assigns, and the Association and SWFWMD, the non- exclusive right and easement, but not the obligation, to enter upon any part of Community to (a) install, keep, maintain and replace pumps in order to provide water for the irrigation of any of the Association property and Common Areas; (b) construct, maintain and repair any structure designed to divert, collect or retain water; and (c) remove trash and other debris. This easement shall not entitle the holders to construct or install any drainage systems or facilities over, under or through any existing Unit, and any damage to a Unit resulting from the exercise of this easement shall promptly be repaired by and at the expense of the Person exercising this easement. The exercise of this easement shall not unreasonably interfere with the use of any Unit and, except in an emergency, entry onto any Unit shall be made only after reasonable notice to the Owner or the Owner’s occupant. Further, every Unit and the Common Area shall be burdened with easements for natural drainage or stormwater runoff from other portions of the Community; provided, no Persons shall alter the natural drainage on any Unit so as to materially increase the drainage of stormwater onto adjacent portions of the Community without the consent of the Owner of the affected Property.
Section 6. Encroachments. Any portion of any Unit encroaching upon any other Unit or on any of another Unit, Common Area or Limited Common Area, or any encroachment that shall hereafter occur as a result of (i) construction or reconstruction of any improvement; (ii) settling or shifting of an improvement; (iii) any addition, alteration or repair to the Common Area made by or with the consent of the Association, or (iv) any repair or restoration of any improvements (or any portion thereof) or any Unit after damage by fire or other casualty or any taking by condemnation or eminent domain proceedings of all or any portion of any Unit, Common Area or Limited Common Area, then in any such event, a valid easement shall exist for such encroachment and for the maintenance of the same so long as the improvements shall stand. Such easement shall exist to a distance of not more than three (3) feet as measured from any common boundary between contiguous Units and between each Unit and any adjacent Common Area along a line perpendicular to such boundaries at such points. Any such easement or encroachment shall include an easement for the maintenance and use of the encroaching improvements in favor of each of the Unit Owners and their respective designees.
Section 7. Easements to Service Additional Property. The Declarant hereby reserves for itself and its duly authorized agents, representatives, employees, successors, assigns, licensees and mortgagees, an easement over the Common Area for the purposes of enjoyment, use, access and development of the Community. This easement includes, but is not limited to, a right of ingress and
egress over the Common Area for construction of roads and for connecting and installing utilities on such property. Declarant agrees that it and its successors or assigns shall be responsible for any damage caused to the Common Area as a result of vehicular traffic connected with development of such property. Declarant further reserves the right from time to time to grant easements over the Common Areas, for ingress, egress, development, construction and other related uses for purposes of developing any future contemplated phases which may be later subjected to the terms of this Declaration. Declarant further agrees that if the easement is exercised for permanent access to such property and such property or any portion thereof is not made subject to this Declaration, the Declarant, its successors or assigns, or the applicable owner of such property, shall enter into a reasonable agreement with the Association to share the cost of maintenance of any access roadway serving such property.
Section 8. Easements for Cross-Drainage. Every Unit and the Common Area shall be burdened with easements for natural drainage of storm water runoff from other portions of the Community; provided, no Person shall alter the natural drainage on any Unit after the development of the Community pursuant to approved permits, so as to materially increase the drainage of storm water onto adjacent portions of the Community without the consent of the Owner of the affected property.
Section 9. Lake Maintenance Easement. The Declarant hereby reserves for the benefit of itself, its successors and assigns, the Association, upon, across, above and under the Community, a non-exclusive right and easement to enter upon any part of the Community to maintain, inspect and repair, any lakes constructed on the Community, if any. This Easement shall be along the shoreline of each lake and extending back at least twenty (20) feet from the actual water’s edge of such lakes for the purpose of maintaining the lakes.
Section 1. Functions and Services. Except as may otherwise be provided herein, the Association shall be the entity responsible for management, maintenance, operation and control of the Common Areas. The Association shall be the primary entity responsible for enforcement of this Declaration and such reasonable rules regulating use of the Community as the Board may adopt. The Association shall also be responsible for administering and enforcing the architectural standards and controls set forth in this Declaration and in the Architectural Review Requirements. The Association shall perform its functions in accordance with this Declaration, the Bylaws, the Articles of Incorporation and Florida law. Among other things, the Association shall be empowered to do the following, all of the expenses for which shall be deemed Common Expenses:
(a) Adopt Community-Wide Standards of conduct, maintenance or other activity.
(b) Adopt and amend bylaws, rules and regulations;
(c) Adopt and amend budgets for revenues, expenditures and reserves;
(d) Collect Base Assessments, Neighborhood Assessments, Special Assessments and Specific Assessments for Common Expenses;
(e) Maintain in perpetuity all lakes, Conservation Easements and preserved areas located within the Community in accordance with all applicable permits pertaining to said areas and pursuant to the lake management techniques;
(f) Hire and discharge employees, agents, independent contractors, managers and
(g) Institute, defend or intervene in litigation or administrative proceedings in its
own name on its behalf or on behalf of two or more Owners, but only as to matters affecting the Community;
(h) Make contracts and incur liabilities;
(i) Regulate the use, maintenance, repair, replacement and modification of the
(j) Make additional improvements to the Common Area;
(k) Acquire, hold, encumber and convey in its own name any right, title or
interest in real or personal property;
(l) Grant easements, leases, licenses and concessions through or over the Common Area, provided it has obtained the express written consent of the Declarant;
(m) Take all actions necessary to enforce the covenants, conditions and restrictions of this Declaration, the Articles, the Bylaws and the Rules and Regulations;
(n) Impose and receive payments, fees or charges for the use, rental or operation of the Common Area and for services provided to Owners;
(o) Impose charges for late payment of assessments and, after notice and an opportunity to be heard, levy reasonable fines for violations of the Declarations, Bylaws and Rules and Regulations of the Association;
(p) Impose reasonable charges to prepare and record Amendments to the Declaration and Notices of Lien for unpaid assessments;
(q) Purchase at its option general liability and hazard insurance for improvements and activities on the Common Area;
(r) Provide for the indemnification of its officers and maintain directors and officers liability insurance;
(s) Assign its right to future income, including the right to receive annual
(t) Exercise any other powers conferred by this Declaration, the Articles of
Incorporation or the Bylaws;
(u) Exercise all powers that may be exercised in the State of Florida by similar
(v) Exercise any other powers necessary and proper for the governance and
operation of the Association, including the delegation of its functions and services to any governmental or private entity;
(w) To operate and maintain the Surface Water Management System as permitted by SWFWMD, including, but not limited to, all lakes, retention areas, Conservation Areas, water management areas, ditches, culverts, structures and related appurtenances;
(x) To perpetually maintain any and all permanent markers and signs required by SWFWMD, and to inform all Owners of the conservation status of the Conservation Areas required by SWFWMD;
(y) To perpetually maintain all appurtenances and landscaping above the watermain serving the Property as required by the County and additionally, to the extent required by the County, to perpetually maintain the watermain serving the Property.
(z) To enforce all use restrictions created herein and the conditions contained in any subsequent conservation easement with respect to the Conservation Areas, including, but not limited to bringing an action in equity to obtain an injunction against a Unit Owner, enjoining the Unit Owner from violating any restrictions and conditions pertaining to the Conservation Areas.
(aa) To perpetually maintain all streets, roads, drainage, water and sewer improvements compromising any portion of the Community, unless such systems have been dedicated to the County.
(bb) Assumption of all obligations (including all monetary and reporting requirements) of Declarant under all permits for the Community.
(cc) The Association shall be responsible for satisfying and complying with all obligations and terms under all Permits, authorizations, licenses, development approvals and other approvals pertaining to the Community, as well as maintaining copies of all further permitting actions for the benefit of the Association, including but not limited to the following (which shall be included in the definition of “Permits”):
(i) Army Corps. Of Engineers Permit #[ ].
(ii) Southwest Florida Water Management District – Water Use General Permit #[ ].
(iii) Southwest Florida Water Management District – Environmental Resource Permit #[ ], a true and correct copy of which is attached hereto as Exhibit “G”.
Declarant may, in its sole discretion, convey or assign, in whole or in party, any and all Permits pertaining to the Community, or to lands surrounding the Community, to the Association for such purposes as may be expressed in the instrument of conveyance or assignment. The
Association shall accept from Declarant any such conveyance or assignment, and shall assume (and release Declarant from) any and all obligations relating to same.
Section 2. Obligation of the Association. The Association shall carry out the functions and services specified herein first with the proceeds from Base Assessments and then, if necessary, with the proceeds from Special Assessments, the Board of Directors shall consider the proceeds of assessments and the needs of Members in exercising its functions and services outlined in Section 1 of this Article.
Section 3. Association Actions Requiring Approval. Unless the Association receives the affirmative vote of at least two-thirds (2/3) of the votes entitled to be cast at a duly convened meeting, the Association shall not be entitled to:
(a) abandon, partition, subdivide, encumber, sell or transfer the Common Area or any portion thereof, except that boundaries of the Common Area may be adjusted pursuant to Article III, Section 1 hereof. Any such transfer or conveyance of the Common Area by the Association shall not be made without adequate provision for the continued maintenance and operation of infrastructure improvements for which the Association is responsible. The granting of easements for public utilities or for other public purposes consistent with the intended use of the Common Area shall not be deemed a transfer within the meaning of this paragraph;
(b) change the method of determining the obligations, assessments, dues or other charges which may be levied against an Owner;
(c) change, waive or abandon any scheme of regulation or enforcement of Community-Wide Standards; nor
(d) use hazard insurance proceeds for losses to any Common Area other than for the repair or replacement of the Common Area.
Section 4. Recycling Programs. The Board may establish a recycling program and recycling center within the Community and in such event, all occupants of Units shall support such program by recycling, to the extent reasonably practical, all materials which the Association’s recycling program or center is set up to accommodate. The Association may, but shall have no obligation to purchase recyclable materials in order to encourage participation and any income received by the Association as a result of such recycling efforts shall be used to reduce Common Expenses.
Section 5. Public Gardens and Environmental Programs. The Board may establish gardens within the Common Area or designate spaces within the Common Area for the establishment of gardens to promote public awareness of and participation in conservation, management and enhancement of native vegetation, soils and geology and may establish programs to promote an understanding of the natural landscape and environment.
Section 6. Lake Maintenance. Declarant and the Association hereby grant to the County all of the Association’s rights, but not obligations, to maintain the lakes, the drainage easements and the lake maintenance easements granted by the Declarant to the Association.
Section 1. Association’s Responsibility. Except as otherwise provided herein, the Association shall maintain and keep in good repair the Common Areas and Area(s) of Common Responsibility, which shall include, but need not be limited to:
(a) all landscaping and other flora, parks, signage, structures, walls and improvements, including all roads and streets located in the Community, all sewer, potable and non- potable water infrastructure facilities, bike and pedestrian pathways/trails, situated upon the Common Area, to the extent not so maintained by the County or a utility company;
(b) unless otherwise maintained by the local government authority having jurisdiction over the Community, landscaping, sidewalks, street lights and signage within public rights-of-way within or abutting the Community, and landscaping and other flora within any public utility easements and conservation easements within the Community (subject to the terms of any easement agreement relating thereto), to the extent not so maintained by the applicable local government (provided that this shall not be deemed to impose an affirmative obligation on the Association to so maintain any areas for which the local government authority retains responsibility);
(c) [the amenity pool, clubhouse and tennis courts] located within the Community as depicted in the site plan attached hereto as Exhibit “F”, the maintenance and repair of which shall be borne by the Association and assessed against all Owners within the Community as a Common Expense;
(d) such portions of any additional property included within any Area(s) of Common Responsibility as may be dictated by this Declaration, any Supplemental Declaration, or any contract or agreement for maintenance thereof entered into by the Association; and
(e) any property and facilities owned by the Declarant and made available, on a temporary or permanent basis, for the primary use and enjoyment of the Association and its Members, such property and facilities to be identified by written notice from the Declarant to the Association and to remain a part of the Area of Common Responsibility and be maintained by the Association until such time as Declarant revokes such privilege of use and enjoyment by written notice to the Association.
Except as provided in Article VII, Section 2, the Association shall maintain the yard and landscaping of each Unit and shall be responsible for exterior pest control and irrigation, and the Unit Owners shall be obligated to pay the service and maintenance costs for same as a Common Expense. Furthermore, the Association shall maintain the yard and landscaping for each Neighborhood, which shall be a Neighborhood Assessment allocated to the respective Neighborhood, as more particularly set forth in Sections 3 and 4 below. Additionally, the Association shall bear responsibility for any maintenance obligations under the Permits or any other permits applicable to the Community.
There are hereby reserved to the Association easements over the Community as necessary to enable the Association to fulfill such responsibilities. The Association shall maintain the facilities and equipment within the Area(s) of Common Responsibility in continuous operation, except for reasonable periods as necessary to perform required, maintenance or repairs, unless Members
representing 75% of the Class “A” votes and the Declarant, so long as Declarant owns a Unit, agree in writing to discontinue such operation.
The Association may maintain responsibility for property within any Neighborhood, in addition to that designated by any Supplemental Declaration, either by agreement with the Neighborhood or because in the opinion of the Board, the level and quality of service then being provided is not consistent with the Community-Wide Standard. All costs of maintenance pursuant to this paragraph shall be assessed as a Neighborhood Assessment only against the Units within the Neighborhood to which the services are provided. The provision of services in accordance with this Section shall not constitute discrimination within a class.
Except as otherwise specifically provided herein, all costs associated with maintenance, repair and replacement of the Area of Common Responsibility shall be a Common Expense to be allocated among all Units in the manner of and as a part of the Base Assessment, without prejudice to the right of the Association to seek reimbursement from the owner(s) of, or other Persons responsible for, certain portions of the Area of Common Responsibility pursuant to this Declaration, other recorded covenants or agreements with the owner(s) thereof. Except as otherwise provided herein, all costs associated with the maintenance, repair and replacement of Limited Common Areas of a Neighborhood shall be a Neighborhood Expense assessed as a Neighborhood Assessment solely against the Units within the Neighborhood(s) to which the Limited Common Areas are assigned, notwithstanding that the Association may be responsible for performing such maintenance hereunder.
Section 2. Owner’s Responsibility. Notwithstanding anything herein to the contrary, each Owner shall maintain his or her Unit, and shall be responsible for the replacement of any portion or portions of such Unit Owner’s yard, landscaping, shrubbery and any flora associated therewith which may be damaged, whether due to disease, storms, hurricane, natural disaster, cold freeze or other Act of God, provided that such replacement must be in accordance with the Community-Wide Standard and be approved by the Architectural Review Committee. Additionally, each Owner shall maintain all structures, parking areas, and other improvements comprising the Unit in a manner consistent with the Community-Wide Standard and all applicable covenants, unless such maintenance responsibility is otherwise assumed by or assigned to the Association or a Neighborhood pursuant to any Supplemental Declaration or other declaration of covenants applicable to such Unit. In addition to any other enforcement rights, if an Owner fails to properly perform his or her maintenance responsibility, the Association may perform such maintenance responsibilities and assess all costs incurred by the Association against the Unit and the Owner as a Specific Assessment in accordance with Article VIII. The Association shall afford the Owner reasonable notice and an opportunity to cure the problem prior to entry, except when entry is required due to an emergency situation.
Section 3. Maintenance of Neighborhoods. The Association shall have the right, but not the obligation, to maintain, in its sole and absolute discretion, the landscaped areas in each Neighborhood, notwithstanding that such area is solely for the use and benefit of Owners of Units in said Neighborhood and the cost for maintaining same shall be a Neighborhood Assessment. Each Neighborhood Association shall be responsible for maintaining and repairing all buildings located within the Neighborhood of the Neighborhood Association in good condition and repair and consistent with the Community-Wide Standard. In the event that the Neighborhood Association fails to maintain and repair the buildings in good condition and repair and consistent with the Community- Wide Standard, then the Association shall have the right, but not the obligation, to maintain and repair the buildings in the Neighborhood and impose on each Unit Owner within the Neighborhood a
Neighborhood Assessment for all costs and expenses incurred in maintaining or repairing the buildings in said Neighborhood.
Section 4. Neighborhood’s Responsibility. Except as provided in Section 3 above, each Neighborhood Association shall be responsible for maintaining its Neighborhood in a manner consistent with the Community-Wide Standard. The Owners of Units within each Neighborhood shall be responsible for paying, through Neighborhood Assessments, the costs incurred by the Association of operating, maintaining and insuring certain portions of the Area of Common Responsibility within or adjacent to such Neighborhood; provided, however, the cost of maintaining all roads, signage and entry features in the Community shall constitute a Common Expense of the Association.
Any Neighborhood Association having any responsibility for maintenance of property within such Neighborhood shall perform such maintenance responsibility in a manner consistent with the Community-Wide Standard. If it fails to do so, the Association may perform such responsibilities and assess the costs against all Units within such Neighborhood as provided in Article VIII.
Section 5. Standard of Performance. Maintenance, as used in this Article, shall include, without limitation, repair and replacement as needed, as well as such other duties, which may include irrigation, as the Board may determine necessary or appropriate to satisfy the Community-Wide Standard. All maintenance shall be performed in a manner consistent with the Community-Wide Standard and all applicable covenants. Notwithstanding anything to the contrary contained herein, the Association, and/or an Owner and/or a Neighborhood Association shall not be liable for property damage or personal injury occurring on, or arising out of the condition of, property which it does not own unless and only to the extent that it has been negligent in the performance of its maintenance responsibilities.
Section 6. Maintenance of Limited Common Areas. Each Owner shall maintain, repair and replace, as necessary, such Owner’s Limited Common Areas in a neat, clean, orderly and functioning manner in accordance with the Community-Wide Standard and this Declaration.
Section 7. Lake Maintenance. With respect to any lakes within the Community, to the extent not performed by any applicable governmental authority to pursuant to the Permits, the Association shall be responsible for maintaining said lakes, the littoral areas and up to the water’s edge. The cost of maintaining the lakes shall be a Common Expense of the Association.
Section 1. Creation of Assessments. The Association is hereby authorized to levy assessments against each Unit for Association expenses as the Board may specifically authorize from time to time. There shall be four (4) types of assessments for Association expenses and other obligations: (a) Base Assessments to fund Common Expenses for the general benefit of all Units; (b) Neighborhood Assessments for Neighborhood Expenses benefiting only Units within a particular Neighborhood or Neighborhoods; (c) Special Assessments as described in Section 4 below; and (d) Specific Assessments as described in Section 5 below. Each Owner, by accepting a deed or entering into a recorded contract of sale for any portion of the Community is deemed to covenant and agree to pay these assessments.
All assessments, together with interest from the due date of such assessment at a rate determined by the Board (not to exceed the highest rate allowed by Florida law), late charges at a rate determined by the Board (in an amount not to exceed the greater of $25.00 or 5 percent of the amount of each installment that is paid past the due date, provided that only as to this subsection, if Chapter 720, Florida Statutes, is ever amended to provide that the Association shall have the right to impose greater late charges than those enumerated in this subsection, then such right shall automatically be bestowed upon the Association without need for amending this Declaration or providing any notice), costs and reasonable attorneys’ fees, shall be a charge and continuing lien upon each Unit against which the assessment is made until paid, as more particularly provided in Section 7 below. Each such assessment, together with interest, late charges, costs, and reasonable attorneys’ fees, also shall be the personal obligation of the Person who was the Owner of such Unit at the time the assessment arose. Upon a transfer of title to a Unit, the grantee shall be jointly and severally liable for any assessments and other charges due at the time of conveyance. However, no first mortgagee who obtains title to a Unit by exercising the remedies provided in its mortgage shall be liable for unpaid assessments which accrued prior to such acquisition of title, except to the extent provided herein.
Assessments shall be paid in such manner and on such dates as the Board may establish. If the Board so elects, assessments may be paid in two or more installments. Unless the Board otherwise provides, the Base Assessment and any Neighborhood Assessment shall be due and payable in advance on the first day of each fiscal year. If any Owner is delinquent in paying any assessments or other charges levied on his Unit, the Board may require any unpaid installments of all outstanding assessments to be paid in full immediately.
The Association shall, upon request, furnish to any Owner liable for any type of assessment, a certificate in writing, signed by an officer of the Association, setting forth whether such assessment has been paid. Such certificate shall be conclusive evidence of payment. The Association may require the advance payment of a reasonable processing fee for the issuance of such certificate.
No Owner may exempt himself from liability for assessments, by non-use of Common Area, abandonment of his Unit, or any other means. The obligation to pay assessments is a separate and independent covenant on the part of each Owner. No diminution or abatement of assessments or set- off shall be claimed or allowed for any alleged failure of the Association or Board 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.
The Association is specifically authorized to enter into subsidy contracts or contracts for “in kind” contribution of services, materials or a combination of services and materials with the Declarant or other entities for payment of Common Expenses.
Section 2. Computation of Neighborhood Assessments. At least forty-five (45) days before the beginning of each fiscal year, the Board shall prepare a separate budget covering the estimated Neighborhood Expenses for each Neighborhood on whose behalf Neighborhood Expenses are expected to be incurred during the coming year. The Board shall be entitled to set such budget only to the extent that this Declaration, any Supplemental Declaration or the Bylaws, specifically authorizes the Board to assess certain costs as a Neighborhood Assessment. Any Neighborhood may request that additional services or a higher level of services be provided by the Association and, in such case, any additional costs shall be added to such budget. Such budget shall include a capital contribution establishing a reserve fund for repair and replacement of capital items maintained as a
Neighborhood Expense, if any, within the Neighborhood. Neighborhood Expenses shall be allocated equally among all Units within the benefited Neighborhood; provided, if so specified in the Supplemental Declaration applicable to such Neighborhood or if so directed by petition signed by a majority of the Owners within the Neighborhood, any portion of the assessment intended for exterior maintenance of structures, insurance on structures, or replacement reserves which pertain to particular structures shall be levied on each of the benefited Units in proportion to the benefit received.
The Board shall cause a copy of such budget and notice of the amount of the Neighborhood Assessment for the coming year to be delivered to each Owner of a Unit in the Neighborhood at least thirty (30) days prior to the beginning of the fiscal year. Such budget and assessment shall become effective unless disapproved by a majority of the Owners of Units in the Neighborhood to which the Neighborhood Assessment applies; provided, however, there shall be no obligation to call a meeting for the purpose of considering the budget except on petition of Owners of at least ten percent (10%) of the Units in such Neighborhood, which petition must be submitted to the Board within ten (10) days after delivery of the notice of assessments. This right to disapprove shall only apply to those line items in the Neighborhood budget which are attributable to services requested by the Neighborhood.
If the proposed budget for any Neighborhood is disapproved or if the Board fails for any reason to determine the budget for any year then, until such time as a budget is determined, the budget in effect for the immediately preceding year shall continue for the current year.
Section 3. Reserve Budget and Capital Contribution. The Board shall annually prepare reserve budgets for both general and Neighborhood purposes which take into account the number and nature of replaceable assets, the expected life of each asset, and the expected repair or replacement cost. The Board shall set the required capital contribution in an amount sufficient to permit meeting the projected needs of the Association, as shown on the budget, with respect both to amount and timing by annual Base Assessments or Neighborhood Assessments, as appropriate, over the budget period.
Section 4. Special Assessments. In addition to other authorized assessments, the Association may levy Special Assessments from time to time to cover unbudgeted expenses or expenses in excess of those budgeted. Such Special Assessment may be levied against the entire membership, if such Special Assessment is for Common Expenses, or against the specific Units within the Community benefiting from said expenses. Special Assessments shall be payable in such manner and at such times as determined by the Board, and may be payable in installments extending beyond the fiscal year in which the Special Assessment is approved. Before the Turnover Date, the Board controlled by Declarant may not levy a Special Assessment unless a majority of the Owners other than Declarant approve the Special Assessment by a majority vote at a duly called special meeting of the Owners at which a quorum is present.
Section 5. Specific Assessments. The Board shall have the power to levy Specific Assessments against a particular Unit or Units constituting less than all of the Units within the Community or within a Neighborhood, as follows:
(a) to cover the costs, including overhead and administrative costs, of providing benefits, items or services to the Unit or occupants thereof upon request of the Owner, pursuant to a menu of special services which the Board may from time to time authorize to be offered to Owners
(which might include, without limitation, landscape maintenance, handyman service, pool cleaning, pest control, etc.), which assessments may be levied in advance of the provision of the requested benefit, item or service as a deposit against charges to be incurred by the Owner; and
(b) to cover costs incurred in bringing the Unit into compliance with the terms of this Declaration, any applicable Supplemental Declaration, the Bylaws or rules, or costs incurred as a consequence of the conduct of the Owner or occupants of the Unit, their licensees, invitees or guests; provided, the Board shall give the Unit Owner prior written notice and an opportunity for a hearing before levying in Specific Assessment under this subsection (b).
The Association may also levy a Specific Assessment against any Neighborhood to reimburse the Association for costs incurred in bringing the Neighborhood into compliance with the provisions of this Declaration, any applicable Supplemental Declaration, the Articles, the Bylaws and rules; provided the Board gives the Members from such Neighborhood prior written notice and an opportunity to be heard before levying any such assessment.
Section 6. Date of Commencement of Assessments; Due Dates. All annual assessments shall be payable quarterly, in advance. The obligation to pay assessments shall commence as to each Unit on the first day of the month following: (a) the month in which a Certificate of Occupancy is issued by the applicable governmental authority for the residence on the Unit, or (b) the month in which the Board first determines a budget and levies assessments pursuant to this Article, whichever is later. The first annual Base Assessment, if any, levied on each Unit shall be adjusted according to the number of months remaining in the fiscal year at the time assessments commence on the Unit. At the option of the Board, the payment of assessments may be changed to a more frequent basis. The due date of any Special Assessment or Specific Assessment provided for herein shall be set in the resolution authorizing such assessment.
Section 7. Liens for Assessments. Upon recording of a claim of lien, there shall exist a perfected lien for unpaid assessments on the respective Unit prior and superior to all other liens, except all taxes, bonds, assessments and other levies which by law would be superior thereto, a lien or charge of any first mortgage of record (meaning any recorded mortgage with first priority over other mortgages) made in good faith and for value, but subject to the limitations of Section 8 hereof. Such lien, when delinquent, may be enforced by suit, judgment and foreclosure.
The Association, acting on behalf of the Owners, shall have the power to bid for the Unit at foreclosure sale and to acquire and hold, lease, mortgage and convey the same. During the period in which a Unit is owned by the Association following foreclosure: no right to vote shall be exercised on its behalf; no assessment shall be levied on it; and each other Unit shall be charged, in addition to its usual assessment, its equal pro rata share of the assessment that would have been charged against such Unit had it not been acquired by the Association as a result of foreclosure. Suit to recover a money judgment for unpaid common expenses and attorneys’ fees shall be maintainable without foreclosing or waiving the lien securing the same. The Board may suspend the voting rights and right to use the Common Area of a Member while such Member is in default in payment of any assessment.
Each Owner, by acceptance of a deed or as a party to any other type of conveyance, vests in the Association or its agents the right and power to bring all actions against him or her personally for the collection of such charges as a debt and also to foreclose the aforesaid lien in the same manner as
other liens for the improvement of real property. The lien provided for in this Article shall be in favor of the Association and shall be for the benefit of all other Owners.
All payments shall be applied first to costs and attorneys’ fees, then to interest, then to delinquent assessments, then to any unpaid installments of the annual assessment, special assessments and individual assessments which are not the subject matter of suit in the order of their coming due, and then to any unpaid installments of the annual assessment, special assessments or individual assessments which are the subject matter of suit in the order of their coming due. The person making payment is entitled to satisfaction of the lien upon payment in full, and any release of lien must be in the form required under Chapter 720, Florida Statutes.
Section 8. Subordination of the Lien to First Mortgages; Mortgagees’ Rights. A first mortgagee, upon written request, shall be entitled to written notification from the Association of any default of an Owner of any obligation hereunder which is not cured within sixty (60) days. Notwithstanding anything to the contrary contained herein, the liability of a first mortgagee, or its successor or assignee as a subsequent holder of the first mortgage who acquires title to a Unit by foreclosure or by deed in lieu of foreclosure for the unpaid assessments that became due before the mortgagee's acquisition of title, shall be the lesser of:
1. The Unit’s unpaid common expenses and regular periodic or special assessments that accrued or came due during the 12 months immediately preceding the acquisition of title and for which payment in full has not been received by the Association; or
2. One percent of the original mortgage debt.
The limitations on first mortgagee liability provided by this paragraph apply only if the first mortgagee filed suit against the parcel owner and initially joined the Association as a defendant in the mortgagee foreclosure action. Joinder of the Association is not required if, on the date the complaint is filed, the Association was dissolved or did not maintain an office or agent for service of process at a location that was known to or reasonably discoverable by the mortgagee. Additionally, a first mortgagee shall become liable for all assessments which become due and payable subsequent to the sale or transfer of the Unit pursuant to a decree of foreclosure, or pursuant to a deed given in lieu of foreclosure, or any other proceeding in lieu of foreclosure.
Section 9. Declarant’s Assessments. Declarant guarantees to each buyer of a Unit that from the recording of this Declaration until [ ( ) months] from the date of recording of this Declaration or turnover of control of the Association, whichever occurs earlier, the total monthly assessment imposed on the Owner of a Unit pursuant to the Declaration will not exceed the amounts set forth in Exhibit “E” attached hereto and incorporated herein for the respective Unit and period set forth on said Exhibit “E.”
In consideration for this guarantee, Declarant is excused from the payment of its share of the monthly assessments which otherwise would have been assessed against Declarant’s unsold Units during the term of the guarantee. If at any time during the guarantee period the funds collected from Unit owners at the guaranteed level and other revenues collected by the Association are not sufficient to provide payment, on a timely basis, of all assessments, including the full funding of the reserves unless properly waived, Declarant must advance sufficient cash to the Association at the time such payments are due. Expenses incurred in the production of non-assessment revenues, not in excess of
the non-assessment revenues, may not be included in the assessments. If the expenses attributable to non-assessment revenues exceed non-assessment revenues, only the excess expenses must be funded by the Declarant. Interest earned on the investment of Association funds may be used to pay the income tax expense incurred as a result of the investment; such expense shall not be charged to Declarant; and the net investment income will be retained by the Association. Each such non- assessment-revenue-generating activity shall be considered separately. Any portion of the assessment which is budgeted for designated capital contributions of the Association shall not be used to pay operating expenses.
Declarant’s total financial obligation to the Association at the end of the guarantee period shall be determined on the accrual basis using the following formula: Declarant shall pay any deficits that exceed the guaranteed amount, less the total regular periodic assessments earned by the Association from the members other than the Declarant during the guarantee period regardless of whether the actual level charged was less than the maximum guaranteed amount. Declarant reserves the right, but not the obligation, to unilaterally extend this guaranty for one or more additional stated periods after the expiration of the initial guaranty period on the date that is [ ( ) months] from the date of recording of this Declaration or turnover of control of the Association, whichever occurs earlier, although the monthly guarantee amount shall be the same as the last level set forth above.
In computing the monthly amount to be funded by the Declarant as aforesaid, revenues and expenses shall not be segregated or earmarked by type of Assessment or type of Common Area, or by Neighborhood but, instead, shall be taken as a whole. Also, depreciation and capital asset acquisition shall not be deemed a cost or expense for purposes of this Section and Declarant shall not be deemed to have in any manner guaranteed or obligated itself as to the types or levels of any inventory of goods or equipment existing at any time. Notwithstanding the above, to the extent permitted by law, in the event of an Extraordinary Financial Event (as hereinafter defined) the costs necessary to effect restoration shall be assessed against all Unit Owners owning units on the date of such Extraordinary Financial Event, and their successors and assigns, including Declarant (with respect to Units owned by Declarant). As used in this subsection, an “Extraordinary Financial Event” shall mean Common Expenses incurred prior to the expiration of the guarantee period (as same may be extended) resulting from a natural disaster or Act of God, which is not covered by insurance proceeds from insurance which may be maintained by the Association.
When all Units within the Community are sold and conveyed to purchasers, neither Declarant nor its affiliates shall have further liability of any kind to the Association for the payment of Assessments, deficits or contributions. Declarant’s rights under this entire Section may be assigned by it in whole or in part and on an exclusive or non-exclusive basis.
Section 10. Exempt Property. The following property shall be exempt from payment of Base Assessments, Neighborhood Assessments, Specific Assessments, and Special Assessments:
(a) all Common Areas;
(b) any property dedicated to and accepted by any governmental authority or
(c) any property held by a conservation trust or similar nonprofit entity as a
conservation easement, except to the extent that any such easement lies within the boundaries of a
Unit which is subject to assessment (in which case the Unit shall not be exempted from assessment); and
(d) any property owned by a Neighborhood Association for the common use and enjoyment of its members, or owned by the members of a Neighborhood Association as tenants-in- common.
Section 11. Initial Recreation Capitalization Fee. The first purchaser of each Unit at the time of closing of the conveyance from the Declarant to the purchaser shall pay the Declarant a one- time recreation capitalization fee to reimburse Declarant for costs associated with construction of the amenities. The Declarant may waive this requirement for some Units, including, but not limited to, if the first purchaser is a Builder and the Builder becomes unconditionally obligated to collect and pay the recreation capitalization fee upon the subsequent sale of each Unit to an end purchaser. The recreation capitalization fee shall remain the property of the Declarant, and each Unit Owner by acceptance of a deed to a Unit acknowledges and agrees that the recreation capitalization fee shall not be delivered to the Association upon turnover of the Association or termination of the Class B Period.
Section 12. Lakewood Ranch Master Plan Community Fee. Within the Lakewood Ranch Master Plan Community there is the Lakewood Ranch Community Activities, Inc., which is a not- for-profit corporation that organizes social activities for residents (the “Corporation”). Each Unit Owner, except Declarant, shall pay to the Corporation Twelve Dollars ($12.00) per year to fund the Corporation (the “Contribution”). The Contribution is subject to inflation at the Consumer Price Index for All Items, All Urban Consumers, or an equivalent index of inflation.
Section 13. Resale Contribution.
(a) Authority. In addition to the assessment obligations set forth in this Article, the Association is hereby authorized to establish and collect a transfer fee upon each transfer of title to a Unit, unless such transfer is exempt as provided in Section 12(d) (the “Resale Contribution”). The fee shall be payable to the Association, at the closing of the transfer, by the Person taking title to the Unit being transferred, and shall be used by the Association exclusively for purposes which provide a direct benefit (as defined in 77 Fed. Reg. 15574 (Mar. 16, 2012)) to the Property. Such Resale Contribution shall constitute an assessment against the Unit and shall be secured by a lien in favor of the Association.
(b) Resale Contribution Limit. The Board shall have the sole discretion to determine the amount and method of determining any Resale Contribution. The Resale Contribution shall be initially set by the Board at [$500.00].
(c) Purpose. All Resale Contributions which the Association collects shall be deposited into the operations account of the Association to be used for any purpose as the Board deems beneficial to the general good and welfare of the Community and surrounding areas, including, but not limited to, paying for operating, maintenance or reserve obligations of the Association. Notwithstanding the foregoing, the Declarant may unilaterally amend this Declaration to designate that some or all of the Resale Contributions collected under this section shall be earmarked to go only to certain purposes or organizations such as a tax-exempt entity or other charitable organization. By way of example and not limitation, such Resale Contributions may be used to assist the Association or one or more tax-exempt entities in funding:
(i) preservation and maintenance of natural areas, wildlife preserves, or similar conservation areas, and sponsorship of educational programs and activities which contribute to the overall understanding, appreciation and preservation of the natural environment at the Community and the County;
(ii) programs and activities which serve to promote a sense of community within the County, such as recreational leagues, cultural programs, educational programs, festivals and holiday celebrations and activities, a community computer network, and recycling programs; and
(iii) social services, community outreach programs, and other charitable
(d) Exempt Transfers. Notwithstanding the above, no Resale Contribution shall
be levied upon transfer of title to a Unit:
(i) by or to Declarant, Builder or any party who becomes a successor
(ii) by a Builder who held title solely for purposes of development and
(iii) by an Owner to a trust, partnership, corporation, or other entity so
long as such entity is and remains wholly-owned by the Owner or by such Owner and the Owner’s spouse and/or children; provided, however, if the immediately preceding transfer of the Unit was exempted from payment of the Resale Contribution pursuant to this subsection, then this subsection shall not apply and the Unit shall be subject to the Resale Contribution;
(iv) by an Owner or such Owner’s estate to the Owner’s spouse and/or children; provided, however, if the immediately preceding conveyance of the Unit was exempted from payment of the Resale Contribution pursuant to this subsection, then this subsection shall not apply and the Unit shall be subject to the Resale Contribution;
(v) of an undivided interest in a Unit by the Owner thereof to any then existing co-Owners) of such Unit; or
(vi) to an institutional lender pursuant to a mortgage or upon foreclosure
of a mortgage.
Section 14. Payment of Unit Real Estate Taxes. Each Owner shall pay all taxes and obligations relating to his or her Unit which, if not paid, could become a lien against the Unit superior to the liens for Assessments created by this Declaration.
The Board of Directors shall have the authority and standing on the behalf of the Association, to enforce in courts of competent jurisdiction decisions of the Architectural Review Committee (the “Committee”), established by this Article. This Article may not be amended without the Declarant’s written consent so long as the Declarant owns any lands subject to this Declaration.
Section 1. The Architectural Review Committee. The Committee shall be a permanent committee of the Association and shall administer and perform the architectural and landscape review and control functions relating to the Community. The Committee shall consist of a minimum of three (3) individuals who shall initially be named by Declarant and who shall hold office at the pleasure of Declarant. One of the members of the Committee may be a paid consultant, e.g. an architect, at Declarant’s option. Until the Turnover Date, Declarant shall have the right to change the number of members of the Committee and to appoint, remove, and/or replace any or all of the members of the Committee. Declarant shall determine which members of the Committee shall serve as its chairman and co-chairman. In the event that any of the members appointed by Declarant shall fail, refuse, or be unable to act, Declarant shall have the right to replace any such member(s) within thirty (30) days of such occurrence. If Declarant fails to replace that member, the remaining members of the Committee shall fill the vacancy by appointment. From and after the Turnover Date, the Board shall have the same rights as Declarant with respect hereto.
Section 2. Membership. There is no requirement that any member of the Committee be an Owner or a Member of the Association.
Section 3. General Plan. It is the intent of this Declaration to create a general plan and scheme of development of the Community. Accordingly, the Committee shall have the right to approve or disapprove all architectural, landscaping, and Improvements within the Community to be made by Neighborhood Associations and Owners other than Declarant. All proposed Improvements, including, but not limited to, any and all construction, modifications, additions and alterations, by Owners, builders and developers who seek to engage in development of or construction upon all or any portion of the Community shall be in strict compliance with the Architectural Review Requirements and this Article. Moreover, no painting of the exterior of a Unit by an Owner, no construction, which term shall include within its definition staking, clearing, excavation, grading and other site work, and no fencing, screening, plantings or addition/removal of plants, trees or shrubs shall take place except in strict compliance with the Architectural Review Requirements and this Article, and with the approval of the Committee. Although the Committee shall have the right to amend the following standards, initially, all pool screen enclosures must be brown and the only permitted fencing shall be brown aluminum fencing. The Committee shall have the right to evaluate all plans and specifications as to harmony of exterior design, landscaping, location of any proposed Improvements, relationship to surrounding structures, topography, and conformity with such other reasonable requirements as shall be adopted by Committee. The Committee may impose standards for construction and development which may be greater or more stringent than standards prescribed in applicable building, zoning, or other local governmental codes. Prior to the Turnover Date, any additional standards or modification of existing standards shall require the consent of Declarant, which consent may be granted or denied in its sole discretion.
Section 4. Architectural Review Requirements. Each Owner and Neighborhood Association and his or her or its contractors and employees shall observe and comply with the Architectural Review Requirements (the “Architectural Review Requirements”) which have been or may hereafter be promulgated by the Committee and approved by the Board from time to time. The Architectural Review Requirements shall be effective from the date of adoption; shall be specifically enforceable by injunction or otherwise; and shall have the effect of covenants as set forth herein. The Architectural Review Requirements shall not require any Owner or Neighborhood Association to alter any Improvements previously constructed. Until the Turnover Date, Declarant shall have the right to approve the Architectural Review Requirements, which approval may be granted in its sole discretion.
Section 5. Quorum. A majority of the Committee shall constitute a quorum to transact business at any meeting. The action of a majority present at a meeting at which a quorum is present shall constitute the action of the Committee. In lieu of a meeting, the Committee may act in writing.
Section 6. Power and Duties of the Committee. No Improvements shall be constructed on a Unit or Home; no exterior of a Home or Improvement shall be repainted; no landscaping, sign, or Improvements shall be erected, removed, planted, or maintained on a Unit; nor shall any material addition to or any change, replacement, or alteration of the Improvements as originally constructed by Declarant (visible from the exterior of the Home) be made until the plans and specifications showing the nature, kind, shape, height, materials, floor plans, color scheme, and the location of same shall have been submitted to and approved in writing by the Committee. The Committee shall also have the right to retain and pay outside consultants in relation to the exercise of any of the Committee’s powers or duties hereunder.
Section 7. Procedure. In order to obtain the approval of the Committee, each Owner and Neighborhood Association shall observe the following:
(a) Each applicant shall submit an application to the Committee with respect to any proposed Improvement or material change in an existing Improvement, together with the required application(s) and/or other fees established by the Committee. The applications shall include such information as may be required by the application form adopted by the Committee. The Committee may also require submission of samples of building materials and colors proposed to be used. At the time of such submissions, the applicant shall, if requested, submit to the Committee such site plans, plans, and specifications for the proposed Improvement, prepared and stamped by a registered Florida architect or residential designer, landscaping and irrigation plans prepared by a registered landscape architect or designer showing all existing trees and major vegetation stands, and surface water drainage plans showing existing and proposed design grades, contours relating to the predetermined ground floor finish elevation, pool plans and specifications, and the times scheduled for completion, all as reasonably specified by the Committee.
(b) In the event the information submitted to the Committee is, in the Committee’s opinion, incomplete or insufficient in any manner, the Committee may request and require the submission of additional or supplemental information. The Owner or Neighborhood Association shall, within fifteen (15) days thereafter, comply with the request.
(c) No later than thirty (30) days after receipt of all information required by the Committee for final review, the Committee shall approve or deny the application in writing. The Committee shall have the right to disapprove any plans and specifications which are not suitable or desirable, in the Committee’s sole discretion, for aesthetic or any other reasons or to impose qualifications and conditions thereon. In approving or disapproving such plans and specifications, the Committee shall consider the suitability of the proposed Improvements, the materials of which the Improvements are to be constructed, the site upon which the Improvements are proposed to be erected, the harmony thereof with the surrounding area, and the effect thereof on adjacent or neighboring property. In the event the Committee fails to respond within said thirty (30)-day period, the plans and specifications shall be deemed disapproved by the Committee.
(d) In the event that the Committee disapproves any plans and specifications, the applicant may request a rehearing by the Committee for additional review of the disapproved plans and specifications. The meeting shall take place no later than thirty (30) days after written request for such meeting is received by the Committee, unless applicant waives this time requirement in writing. The Committee shall make a final written decision no later than thirty
(30) days after such meeting. In the event the Committee fails to provide such written decision within said thirty (30) days, the plans and specifications shall be deemed disapproved.
(e) Upon final disapproval, the applicant may appeal the decision of the Committee to the Board within thirty (30) days of the Committee’s written review and disapproval (even if the members of the Board and Committee are the same). Review by the Board shall take place no later than thirty (30) days subsequent to the receipt by the Board of the applicant’s request therefor. If the Board fails to hold such a meeting within thirty (30) days after receipt of request for such meeting, then the plans and specifications shall be deemed disapproved. The Board shall make a final decision no later than sixty (60) days after such meeting. In the event the Board fails to provide such written decision within such sixty (60) days after such meeting, such plans and specifications shall be deemed disapproved. The decision of the Committee or, if appealed, the Board shall be final and binding upon the applicant, his, her or its heirs, legal representatives, successors, and assigns.
(f) Construction of all Improvements shall be completed within the time period set forth in the application and approved by the Committee.
Section 8. Alterations. Any and all alterations, deletions, additions, and changes of any type or nature whatsoever to then-existing Improvements or the plans or specifications previously approved by the Committee shall be subject to the approval of the Committee in the same manner as required for approval of original plans and specifications.
Section 9. Variances. The Association or Committee shall have the power to grant variances from any requirements set forth in this Declaration or in the Architectural Review Requirements, on a case by case basis, provided that the variance sought is reasonable and results from a hardship upon the applicant. The granting of a variance shall not nullify or otherwise affect the right to require strict compliance with the requirements set forth herein or in the Architectural Review Requirements on any other occasion.
Section 10. Permits. The Owner or Neighborhood Association, as applicable, is solely responsible to obtain all required building and other permits from all governmental authorities having jurisdiction.
Section 11. Construction by Owners and Neighborhood Associations. In addition to the requirements set forth in Article X, Section 8, the following provisions govern construction activities by an Owner or Neighborhood Association (“Approved Party”) after consent of the Committee has been obtained:
(a) Each Approved Party shall deliver to the Committee copies of all construction and building permits as and when received by the Approved Party. Each construction site in the Community shall be maintained in a neat and orderly condition throughout construction. Construction activities shall be performed in a diligent, workmanlike,
and continuous manner. Roadways, canals, drainage inlets, preservation or conservation areas, easements, swales, Association Property, and other such areas in the Community shall be kept clear of construction vehicles, construction materials, and debris at all times. Except as otherwise specifically provided herein, no construction office or trailer shall be kept in the Community and no construction materials shall be stored in the Community subject, however, to such conditions and requirements as may be promulgated by the Committee. All refuse and debris shall be removed or deposited in a dumpster on a daily basis. No materials shall be deposited or permitted to be deposited in any canal, lake or waterway or Association Property or other property in the Community or be placed anywhere outside of the Unit upon which the construction is taking place. No hazardous waste or toxic materials shall be stored, handled, or used, including, without limitation, gasoline and petroleum products, except in compliance with all applicable federal, state, and local statutes, regulations, and ordinances and shall not be deposited in any manner on, in, or within the construction or adjacent property or waterways. All construction activities shall comply with the Architectural Review Requirements. If a “Contractor” (as hereinafter defined) or Approved Party shall fail in any regard to comply with the requirements of this Section, the Committee may require that such Approved Party or Contractor post security with the Association in such form and amount deemed appropriate by the Committee in its sole discretion.
(b) There shall be provided to the Committee a list (name, address, telephone number, and identity of contact person) of all contractors, subcontractors, materialmen, and suppliers (collectively, “Contractor” or “Contractors”) and changes to the list as they occur relating to construction. Each Contractor and its employees shall utilize those roadways and entrances into the Community as are designated by the Committee for construction activities. The Committee shall have the right to require that each Contractor’s employees check-in at the designated construction entrances and to refuse entrance to persons and parties whose names are not registered with the Committee.
(c) Each Approved Party is responsible for insuring compliance with all terms and conditions of these provisions and of the Architectural Review Requirements by all of its employees and Contractors. In the event of any violation of any of the terms or conditions set forth herein by any employee or Contractor and/or the continued refusal of any employee or Contractor to comply with such terms and conditions after five (5) days’ notice and right to cure, the Committee shall have, in addition to the other rights hereunder, the right to prohibit the violating employee or Contractor from performing any further services in the Community.
(d) When the physical construction of any Home or other Improvement is started, such construction shall be performed diligently and completed within a reasonable time. If for any reason a Home is not completed within six (6) months from the commencement of construction, as determined by Declarant or the Committee, then Declarant or the Committee may, in its sole and absolute discretion, after ten (10) days’ notice to the Owner of the Home, enter the Home and take such steps as necessary to correct any undesirable condition. The Owner of the Home will be charged for the costs thereof as a Specific Assessment.
(e) If, during any construction activity on a Home or other Improvement or at any other time, any of the Association Property is damaged or destroyed, including, without limitation, any street lights, sidewalks, landscaping, street signs, or other Improvements located
thereon, the Approved Party shall be liable for all costs incurred in repairing or replacing such Association Property, and the total costs thereof shall be assessed against the Owner as a Specific Assessment or against all relevant Owners as a Neighborhood Assessment. The Association reserves the right to collect from Approved Parties or Contractors a security deposit that may be applied to reduce damages to the Association Property which might occur during the construction of a Home or other Improvement.
(f) The Committee may, from time to time, adopt standards governing the performance or conduct of Approved Parties, Contractors, and their respective employees within the Community. Each Approved Party and Contractor shall comply with such standards and cause its respective employees to comply with same. The Committee may also promulgate requirements to be inserted in all contracts relating to construction within the Community and each Owner shall include the same therein.
Section 12. Inspection. There is specifically reserved to the Association and the Committee, and to any agent or member of either of them, the right of entry and inspection upon any portion of the Community for the purpose of determining whether there exists any violation of the terms of any approval given by the Association or the Committee or of the terms of this Declaration or the Architectural Review Requirements.
Section 13. Violation. If any Improvement shall be constructed or altered without prior written approval, or in a manner which fails to conform with the approval granted, the Approved Party shall, upon demand of the Association or the Committee, cause such Improvement to be removed or restored until approval is obtained or in order to comply with the plans and specifications originally approved. The Approved Party shall be liable for the payment of all costs of and associated with effecting such removal or restoration, including, without limitation, all legal fees, incurred by the Association or Committee. The costs shall be deemed a Specific Assessment or Neighborhood Assessment, as applicable, and enforceable pursuant to the provisions of this Declaration. The Committee and/or the Association are specifically empowered to enforce, at law or in equity, the architectural and landscaping provisions of this Declaration and the Architectural Review Requirements.
Section 14. Court Costs. In the event it becomes necessary to resort to litigation to determine the propriety of any constructed Improvement or to cause the removal of any unapproved Improvement, the Association and/or Committee shall be entitled to recover all legal fees incurred in connection therewith.
Section 15. Certificate. In the event that any Owner or Neighborhood Association fails to comply with the provisions contained in this Declaration, the Architectural Review Requirements or other rules and regulations promulgated by the Committee or the Association, the Association and/or the Committee may, in addition to all other remedies contained herein, record a Certificate of Non-Compliance against the Home or Homes stating that the Improvements on the Home or Unit fail to meet the requirements of this Declaration and that the Home or Unit is subject to further enforcement remedies.
Section 16. Certificate of Compliance. Prior to the occupancy of any Improvement constructed or erected on any Unit by a person or entity other than Declarant or its designees, the Owner or Neighborhood Association, as applicable, thereof shall obtain a Certificate of Compliance
from the Committee certifying that the Owner or Neighborhood Association, as applicable, has complied with the requirements set forth herein. The Committee may, from time to time, delegate to a member or members of the Committee the responsibility for issuing the Certificate of Compliance.
Section 17. Exemption. Notwithstanding anything contained herein or in the Architectural Review Requirements to the contrary, any Improvements of any nature made or to be made by Declarant or its nominees, including, without limitation, Improvements made or to be made to the Association Property or any Home or Unit, shall not be subject to the review of the Committee, the Association, or the provisions of the Architectural Review Requirements.
Section 18. Exculpation. Declarant, the Association, the directors or officers of the Association, the Committee, the members of the Committee, or any person acting on behalf of any of them, shall not be liable for any costs or damages incurred by any Owner or any other party whatsoever due to any mistakes in judgment, negligence, or any action or omission of Declarant, the Association, the Committee, or their members, officers, or directors, in connection with the approval or disapproval of plans and specifications or the exercise of any other rights or powers set forth in this Article IX. Each Owner, by acceptance of a deed to a Home and/or Unit, agrees, individually and on behalf of its heirs, successors, and assigns, and each Neighborhood Association agrees, on behalf of its directors, officers, members, successors and assigns, that he, she or it shall not bring any action or suit against Declarant, the Association, or their respective directors or officers, the Committee or the members of the Committee, or their respective agents to recover any damages caused by or related to the actions of Declarant, the Association, or the Committee, or their respective members, officers, or directors in connection with the provisions of this Article IX. The Association does hereby indemnify, defend, and hold Declarant, the Committee, and each of their members, officers, and directors harmless from and against all costs, expenses, and liabilities, including, without limitation, legal fees, of all nature resulting from the acts of the Owners, the Neighborhood Associations, the Association, the Committee, or their members, officers and directors. Declarant, the Association, its directors or officers, the Committee or its members, or any person acting on behalf of any of them, shall not be responsible for any defects in any plans or specifications or the failure of same to comply with applicable laws or code nor for any defects in any Improvements constructed pursuant thereto. Each party submitting plans and specifications for approval shall be solely responsible for the sufficiency thereof and for the quality of construction performed pursuant thereto. By way of example, and not of limitation, the approval of hurricane shutters shall not be deemed an endorsement or guarantee of the effectiveness of such hurricane shutters.
INSURANCE AND CASUALTY LOSSES
Section 1. Association Insurance. The Association, acting through its Board or its duly authorized agent, shall obtain blanket “all-risk” property insurance, if reasonably available, for all insurable improvements on the Common Area and on other portions of the Area of Common Responsibility to the extent that it has assumed responsibility for maintenance, repair and/or replacement in the event of a loss. The Association shall have the authority to and interest in insuring any privately or publicly owned property for which the Association has maintenance or repair responsibility. Such property shall include, by way of illustration and not limitation, any insurable improvements on or related to parks, rights-of-way, medians, easements and walkways which the Association is obligated to maintain. If blanket “all-risk” coverage is not generally
available at reasonable cost, then the Association shall obtain fire and extended coverage, including coverage for vandalism and malicious mischief. The face amount of the policy shall be sufficient to cover the full replacement cost of the insured property. The cost of such any insurance shall be a Common Expense to be allocated among all Units subject to assessment as part of the annual Base Assessment. In addition, the Association may, upon request of a Neighborhood, and shall, if so specified in a Supplemental Declaration applicable to the Neighborhood, obtain and continue in effect adequate blanket “all-risk” property insurance on all insurable improvements within such Neighborhood if reasonably available. If “all-risk” property insurance is not generally available at reasonable cost, then fire and extended coverage may be substituted. Such coverage may be in such form as the Board of Directors deems appropriate. The face amount of the policy shall be sufficient to cover the full replacement cost of all structures to be insured. The costs shall be charged to the Owners of Units within the benefited Neighborhood as a Neighborhood Assessment. All policies shall provide for a certificate of insurance to be furnished to each Member insured, to the Association, and to the Neighborhood Association, if any.
Except as otherwise provided above with respect to property within a Neighborhood, premiums for all insurance on the Area of Common Responsibility shall be Common Expenses and shall be included in the Base Assessment. However, premiums for insurance on Limited Common Areas may be included in the Neighborhood Assessment of the Neighborhood benefited, unless the Board reasonably determines that other treatment of the premiums is more appropriate.
The policies may contain a reasonable deductible which shall not be subtracted from the face amount of the policy in determining whether the insurance at least equals the required coverage. In the event of an insured loss, the deductible shall be treated as a Common Expense or a Neighborhood Expense in the same manner as the premiums for the applicable insurance coverage. However, if the Board reasonably determines, after notice and an opportunity to be heard in accordance with Section
4.23 of the Bylaws, that the loss is the result of the negligence or willful conduct of one or more Owners or occupants, then the Board may specifically assess the full amount of such deductible against the Unit of such Owner or occupant, pursuant to Article VIII, Section 5.
All insurance coverage obtained by the Association shall:
(a) be written with a company authorized to do business in Florida which holds a Best’s rating of A or better and is assigned a financial size category of IX or larger as established by
A.M. Best Company, Inc., if reasonably available or, if not available, the most nearly equivalent rating which is available;
(b) be written in the name of the Association as trustee for the benefited parties. Policies on the Common Area shall be for the benefit of the Association and its Members. Policies secured on behalf of a Neighborhood shall be for the benefit of the Neighborhood Association, if any, the Owners of Units within the Neighborhood, and their mortgagees, as their interests may appear;
(c) vest in the Board exclusive authority to adjust losses; provided, however, no mortgagee having an interest in such losses may be prohibited from participating in the settlement negotiations, if any, related to the loss;
(d) not be brought into contribution with insurance purchased by individual Owners, occupants or their mortgagees; and
(e) have an inflation guard endorsement, if reasonably available. If the policy contains a co-insurance clause, it shall also have an agreed amount endorsement. The Association shall arrange for an annual review of the sufficiency of insurance coverage by one or more qualified persons, at least one of whom must be in the real estate industry and familiar with construction in the County area.
The Board shall use reasonable efforts to secure insurance policies containing endorsements
(a) waive subrogation as to any claims against the Association’s Board, officers,
employees and its manager, the Owners and their tenants, servants, agents and guests;
(b) waive the insurer’s rights to repair and reconstruct instead of paying cash;
(c) preclude cancellation, invalidation, suspension or non-renewal by the insurer on account of any one or more individual Owners, or on account of any curable defect or violation without prior written demand to the Association to cure the defect or violation and allowance of a reasonable time to cure;
(d) exclude individual Owners’ policies from consideration under any “other insurance” clause; and
(e) require at least thirty (30) days prior written notice to the Association of any cancellation, substantial modification or non-renewal.
The Association shall also obtain, as a Common Expense, worker’s compensation insurance and employer’s liability insurance, if and to the extent required by law, directors’ and officers’ liability coverage, if reasonably available, and flood insurance, if advisable.
The Association also shall obtain, as a Common Expense, a fidelity bond or bonds, if generally available at reasonable cost, covering all persons responsible for handling Association funds. The Board shall determine the amount of fidelity coverage in its best business judgment but, if reasonably available, shall secure coverage equal to not less than one-sixth (1/6) of the annual Base Assessments on all Units plus reserves on hand. Bonds shall contain a waiver of all defenses, based upon the exclusion of persons serving without compensation, and shall require at least thirty (30) days’ prior written notice to the Association of any cancellation, substantial modification or non- renewal.
Notwithstanding anything herein to the contrary, to the extent permitted by law, for so long as the Declarant controls the Board of Directors, the Declarant reserves the right (in its sole and absolute discretion) to include any insurance obligation of the Association within a master insurance program controlled by the Declarant.
Section 2. Owners Insurance. By virtue of taking title to a Unit, each Owner covenants and agrees with all other Owners and with the Association to carry blanket “all-risk” property insurance on its Unit(s) and structures thereon, providing full replacement cost coverage less a reasonable deductible, unless either the Neighborhood in which the Unit is located or the Association carries such insurance (which they are not obligated to do hereunder).
Section 3. Requirement to Reconstruct or Demolish Unit. In the event that any Unit is destroyed by fire or other casualty, the Owner of such Unit shall do one of the following: commence reconstruction and/or repair of the Unit (“Required Repair”), or tear the Unit down, remove all the debris, and resod and landscape as required by the Architectural Review Committee (“Required Demolition”). If an Owner elects to perform the Required Repair, such work must be completed within six (6) months from the date of the casualty or such longer period of time established by the Board in its sole discretion. If an Owner elects to perform the Required Repair, such reconstruction and/or repair must be performed in a continuous, diligent and timely manner. The Association and/or the Architectural Review Committee shall have the right to inspect the progress of all reconstruction and/or repair work. Without limiting any other provision of this Declaration or the powers of the Association, the Association shall have the right to bring an action against any Owner who fails to comply with the foregoing requirements. Each Owner acknowledges that the issuance of a building permit or demolition permit shall in no way be deemed to satisfy the requirements set forth herein, which are independent of, and in addition to, any requirements for completion of work or progress requirements set forth in applicable statutes, zoning codes, and/or building codes.
The standard for any Required Repair, Required Demolition or other work performed pursuant to this Section shall be in accordance with Architectural Review Requirements and any other standards established by the Association.
Section 4. Unit in Neighborhood Association. With respect to Section 3 above, Required Repair and Required Demolition as to any Unit governed by a Neighborhood Association shall be in accordance with the casualty provisions in the governing documents of such Neighborhood Association, provided, however, Declarant shall have approved the provisions of such governing documents prior to their recordation in the public records and further provided the provisions are similar to those contained herein. Any Required Repair, Required Demolition or any other work performed pursuant to a casualty shall in all cases, however, be in accordance with the Architectural Review Requirements.
Section 5. Damage and Destruction in the Community.
(a) Immediately after damage or destruction to all or any part of the Community covered by insurance written in the name of the Association, the Board or its duly authorized agent shall file and adjust all insurance claims and obtain reliable and detailed estimates of the cost of repair or reconstruction. Repair or reconstruction, as used in this paragraph, means repairing or restoring the property to substantially the condition in which it existed prior to the damage, allowing for changes or improvements necessitated by changes in applicable building codes.
(b) To the extent permitted by law, any damage to or destruction of the Common Area shall be repaired or reconstructed unless the Members representing at least seventy five percent (75%) of the total Class “A” votes in the Association, and the Declarant, so long as Declarant owns a Unit, decide within sixty (60) days after the loss not to repair or reconstruct.
Subject to any Neighborhood declaration which shall supersede, any damage to or destruction of the common property of any Neighborhood Association shall be repaired or reconstructed unless the Unit Owners representing at least seventy five percent (75%) of the total vote of the Neighborhood Association decide within sixty (60) days after the damage or destruction not to repair or reconstruct.
If either the insurance proceeds or reliable and detailed estimates of the cost of repair or reconstruction, or both, are not available to the Association within such sixty (60) day period, then the period shall be extended until such funds or information are available. However, such extension shall not exceed sixty (60) additional days. No mortgagee shall have the right to participate in the determination of whether the damage or destruction to the Common Area or common property of a Neighborhood Association shall be repaired or reconstructed.
(c) If determined in the manner described above that the damage or destruction to the Common Area or the common property of any Neighborhood Association shall not be repaired or reconstructed and no alternative improvements are authorized, the affected property shall be cleared of all debris and ruins and maintained by the Association, in a neat and attractive, landscaped condition consistent with the Community-Wide Standard.
Section 6. Disbursement of Proceeds. Any insurance proceeds remaining after paying the costs of repair or reconstruction, or after such settlement as is necessary and appropriate, shall be retained by and for the benefit of the Association or the Neighborhood Association, as appropriate, and placed in a capital improvements account. This is a covenant for the benefit of mortgagees and may be enforced by the mortgagee of any affected Unit.
Section 7. Repair and Reconstruction. If insurance proceeds are insufficient to cover the costs of repair or reconstruction, the Board of Directors shall, without a vote of the Members, levy Special Assessments against those Unit Owners responsible for the premiums for the applicable insurance coverage under Article VIII, Section 4 above.
Section 8. Owner’s Insurance Requirements for any Construction or Renovation. Prior to the commencement of and during the performance of any construction, remodeling, repairs or improvements, including the installation of a swimming pool or spa (“Work”) on a Unit, the Owner upon which the Work is being undertaken shall keep and maintain, or cause its general contractor to keep and maintain, and provide the Association with evidence that Owner or the general contractor of Owner has obtained, the following insurance with the Association, the Declarant and the other Owners to the extent any of the foregoing has an insurable interest, as the primary insured parties:
(a) worker’s compensation insurance in minimum statutory amounts, as required by applicable law, as it may exist from time to time, and employer’s liability insurance in the amount of not less than Five Hundred Thousand Dollars ($500,000) for each accident/disease;
(b) comprehensive commercial general liability insurance covering all operations by or on behalf of the general contractor, which shall contain the following coverages:
(i) premises and operations;
(ii) products and completed operations;
(iii) contractual liability;
(iv) broad form property damage (including completed operations);
(v) explosion, collapse, and underground hazards; and
(vi) personal injury liability.
The policy for general liability insurance shall be endorsed to provide that each of the aforementioned coverages shall apply in total to this jobsite only and by specific endorsement (per project limit). The policy must list both the Association and the Declarant as an additional insured.
(c) each of the above coverages shall have the following minimum limits of
(i) Two Million Dollars ($2,000,000) for each occurrence for bodily
injury and property damage; and
(ii) Two Million Dollars ($2,000,000) in the aggregate for products and completed operations (which coverage shall continue to be provided and maintained for a period following final completion of the Work up to the termination of the statute of limitations provided in Section 95.11, Florida Statutes).
(d) “all risk” builder’s risk insurance in an amount equal to one hundred percent (100%) of the full replacement cost of the Work to be completed, including materials delivered, and improvements. The policy shall include coverage on an “all risk” basis, including, but not limited to, coverage against fire, collapse, lightening, wind damage, hail, explosion, theft, riot, civil commotion and vehicles. Coverage must include all materials, supplies, and equipment owned by the Owner that are intended for specific installation in the applicable Unit, while such materials, supplies, and equipment are located on the Condominium Property, in transit, or while temporarily located away from the Condominium Property for the purpose of repair, adjustment, or storage at the risk of the insured party.
(e) Any automobile liability insurance in statutory amounts for bodily injury and property damage combined.
(f) Each contractor must be licensed, bonded and insured, and provide evidence of same to the Association prior to the commencement of any Work. Furthermore, each Owner, by acceptance of a deed to his or her Unit, hereby indemnifies the Declarant, the Association and any management agent harmless from and against any damages, claims, losses and liability resulting from any Work initiated by the Owner.
Section 1. General. If any part of the Common Area shall be taken (or conveyed in lieu of and under threat of condemnation by the Board acting on the written direction of Members representing at least sixty seven percent (67%) of the total Class “A” votes in the Association and of the Declarant, as long as the Declarant owns any Property) by any authority having the power of condemnation or eminent domain, each Owner shall be entitled to written notice. The award made for such taking shall be payable to the Association as trustee for all Owners to be disbursed as follows:
If the taking involves a portion of the Common Area on which improvements have been constructed, the Association shall restore or replace such improvements on the remaining land included in the Common Area to the extent available, unless within sixty (60) days after such taking the Declarant, so long as the Declarant owns any property in the Community, and Members representing at least seventy five percent (75%) of the total Class “A” votes in the Association, shall otherwise agree. Any such construction shall be in accordance with plans approved by the Board. The provisions of Article X, Sections 3, 4 and 5 regarding funds for the repair of damage or destruction shall apply.
If the taking does not involve any improvements on the Common Area, or if a decision is made not to repair or restore, or if net funds remain after any such restoration or replacement is complete, then such award or net funds shall be disbursed to the Association and used for such purposes as the Board shall determine.
Section 1. Residential Use. Subject to the Declarant’s rights set forth herein, no commercial use of a Unit which shall be inconsistent with applicable zoning laws and regulations shall be permitted unless approved by the Board of Directors in writing.
Section 2. Nuisances. No activity shall be permitted to exist or operate in a Unit which constitutes a nuisance or is detrimental to the Community or to any other Unit within the Community. No Owner or resident of a Unit may make or permit any disturbing noises, as determined by the Board of Directors, whether made by himself, his or her family, friends, guests, pets or employees, nor may he do or permit to be done anything by such persons that would interfere with the rights, comforts or other conveniences of other residents. No person may play or suffer to be played any musical instrument, stereo, phonograph, radio or television set in his or her Unit or in or about the Community if the same shall in any manner disturb or annoy the other residents or Owners in the Community.
Section 3. Unlawful Use. The Association and the Owners shall comply with all applicable laws, zoning ordinances, orders, rules, regulations or requirements of any governmental agency relating to the Community.
Section 4. Insurance. No Owner shall permit anything to be done or kept in or on his Unit or the Common Area which increases the rate of insurance, or results in the cancellation of insurance, on the Common Area.
Section 5. Pets. No household pets shall be permitted by Owners in a Unit except in accordance with the pet behavior criteria established in the Rules and Regulations for the Association. Furthermore, all permitted pets must be contained in the Owner’s Unit and shall not be permitted to roam free. Further, all permitted pets must be leashed at all times when not located in the Unit and may be walked only in designated areas. No goats, chickens, pigeons or any other obnoxious animals, fowl or reptiles shall be kept or permitted to be kept. Commercial activities involving pets shall not be allowed. Pets of Owners or occupants shall be limited to a reasonable number as determined by the Association in its sole and absolute discretion. The ability to keep a pet is a privilege, not a right. If, in the opinion of the Board, any pet becomes a source of unreasonable
annoyance to others, or the owner of the pet fails or refuses to comply with these restrictions, the owner, upon written notice, may be required to remove the pet from the Community.
Section 6. Signs. No sign, advertisement or notice of any type or nature whatsoever may be erected or displayed upon any Unit (including in any window), and/or Common Area unless expressed prior written approval of the size, shape, content and location has been obtained from the Board of Directors, which approval may be withheld in its discretion. Notwithstanding the foregoing, the Declarant shall be permitted to post and display advertising signs on the Property and the Board of Directors may erect reasonable and appropriate signs on any portion of the Common Area. Additionally, no Unit Owner may hold an “open house” without first obtaining the approval of the Board of Directors.
Section 7. Exterior Lighting. Except as may be installed initially by Declarant, no spotlights, seasonal and special effect lighting, floodlights or similar high intensity lighting shall be placed or utilized upon any Unit which in any way will allow light to be reflected on any other Unit or the improvements thereon or upon the Common Area, or any part thereof without the prior written approval of the Committee and in accordance with the Architectural Review Requirements. Low intensity lighting which does not disturb the Owners or other occupants shall be permitted.
Section 8. Traffic Hazards. Nothing shall be erected, constructed, planted or otherwise placed in the Community subsequent to the initial construction of improvements in the Community by Declarant which creates a traffic hazard or blocks the vision of motorists upon any of the streets, roads or intersections of the Community.
Section 9. Service Yards. All garbage receptacles, gas meters, air conditioning, heating, pool equipment, materials and supplies, and other equipment placed or stored outside must be concealed from view from roads and adjacent Community in accordance with the Architectural Review Requirements. No Unit Owner may erect any structure or improvement that will deny or impede the Association’s access to the Unit Owner’s yard.
Section 10. Antennas, Other Devices. Except as permitted by law, and except as may be installed initially by Declarant, no exterior radio or television antenna, satellite dish or other receiver transmitting device or any similar exterior structure or apparatus may be erected or maintained unless approved by the Committee, pursuant to the Architectural Review Requirements; provided, however, each Owner may maintain a satellite dish provided the satellite dish complies with location guidelines adopted by the Committee.
Section 11. Temporary Structures. No temporary structure, such as a trailer, tent, shack, barn, shed or other outbuilding shall be permitted at any time, other than:
(a) Temporary structures during the period of actual construction; and
(b) Tents or other temporary structures for use during social functions.
Section 12. Water Supply and Sewerage. No septic tanks shall be permitted (except for the initial temporary sales and construction trailers) within the Community. No wells shall be installed, unless permitted by the Committee pursuant to the Architectural Review Requirements and provided the Unit Owner obtains all governmental approvals.
Section 13. Fuel Storage Tanks. No fuel or gas storage tanks shall be permitted; however, an Owner may keep and maintain a small gas tank (not in excess of 20 gallons) for gas barbecues, fireplaces and hot tubs, provided they are maintained in accordance with the Architectural Review Requirements.
Section 14. Parking and Garages. Owners shall park only in their garages, in the driveways servicing their Unit, or in appropriate parking spaces designated by the Board. Garage doors shall be kept closed except when automobiles are entering or leaving the garage. Only the number of cars exceeding occupied garage spaces shall be parked on the driveway. Cars parked in the driveway shall be parked such that they are not blocking the sidewalk.
Section 15. Soliciting. Soliciting is strictly forbidden within the Community. Owners should notify the Association if a solicitor appears, and appropriate action will be taken.
Section 16. Trees and Plantings. Pursuant to the Architectural Review Requirements, but excepting any landscaping as may be put in place initially by Declarant, no trees or other plantings shall be cut, removed or added without approval of the Committee, nor shall any Unit Owner alter the landscaping, plant beddings (including mulch or any substitute therefore) or modify the swales without the approval of the Committee. Upon violation of this provision, the Association maintains the right to enter into and upon the Unit and its appurtenant lot and remove and/or replace the unapproved article(s), which cost shall be assessed against the Owner as a Specific Assessment.
Section 17. Fences, Enclosures and Walls; Clotheslines. Except as may be installed initially by Declarant, no fences, screens (including pool screens) and/or enclosures (including front or rear screening/enclosures of any kind), pergolas, invisible pet fences or walls shall be erected unless in accordance with the Architectural Review Requirements and only upon consent by the Committee. Furthermore, Unit Owners shall not erect or maintain any clotheslines, without the written consent of the Board of Directors. Upon violation of this provision, the Association maintains the right to enter into and upon the Unit and its appurtenant lot and remove and/or replace the unapproved article(s), which cost shall be assessed against the Owner as a Specific Assessment.
Section 18. Motor Vehicles, Trailers, Etc. Recreational vehicles, including but not limited to boats, watercrafts, motorcycles, boat trailers, golf carts, mobile homes, trailers (either with or without wheels), motor homes, vans over fourteen (14) feet in length, tractors, trucks in excess of three-fourths (3/4) ton, all-terrain vehicles, [vehicles custom painted more than one color (including but not limited to camouflage or iridescent)], commercial vehicles of any type, campers, motorized campers, motorized go-carts, motorized skateboards, scooters or any other related transportation device may only be stored outside or on any Unit a maximum of 8 hours but not overnight, unless fully garaged. Moreover, no recreational vehicle shall be parked on any portion of the Common Area unless such areas are specifically designated for recreational parking. The Association may make reasonable rules regarding the use of motorized skateboards, mopeds, scooters and motorcycles in the Community. No Owner or other occupant of the Community shall repair or restore any vehicle of any kind upon or within the Community, except for emergency repairs and then only to the extent necessary to enable the movement thereof to a proper repair facility. Vehicles shall be parked only within Units on paved surfaces and shall not block sidewalks or bike paths and the Unit Owners must park their motorcycles, motorized skateboards, scooters and car(s) in the garage when not in use. Parking by Owners within street rights-of-way is prohibited and the Association is authorized to tow vehicles parked in violation hereof. Overnight parking in street rights-of-way by non-Owners shall be prohibited.
Section 19. Recreation Equipment. All basketball courts, backboards, volleyball nets, swing sets, sandboxes and other outdoor recreational equipment shall be installed, maintained or used only in accordance with the Architectural Review Requirements, and approved by the Committee and no portable basketball hoop may be left outside overnight.
Section 20. Lawns and Landscaping. Any changes to a Unit’s yard, landscaping, shrubbery and any flora (including the replacement, removal or addition of flora, plantings or modification of swales) to be performed by an Owner with respect to the Owner’s Unit or lot appurtenant thereto must be approved by the Architectural Review Committee. Further, except as may be installed initially by Declarant, no gravel, blacktop or paved parking strips shall be installed or maintained by any Owner adjacent to and along the street. No trash, debris or refuse pile shall be placed or remain on a Unit.
Section 21. Subdivision. No Unit shall be further subdivided except upon express written consent of the Board of Directors of the Association, and in accordance with applicable subdivision regulations.
Section 22. Conservation Areas. No person may alter the Conservation Areas, including but not limited to all wetlands and upland buffer areas, from their natural and/or permitted condition; provided, however, the Association and/or Declarant, as applicable, may remove all exotic or nuisance vegetation as permitted under SWFWMD permit pertaining to the Community, or restore any Conservation Area as set forth in any restoration plan contained in a conservation easement created for the Conservation Areas. Exotic vegetation may include, but is not limited to, mealeuca, Brazilian pepper, Australian pine, Japanese climbing fern or any other species currently listed by the Florida Exotic Pest Plant Council. Nuisance vegetation may include cattails, primrose willow and grapevine.
Section 23. Leases. No Unit Owner may dispose of a Unit or any interest therein by lease without approval of the Association, such approval to be granted or withheld in the Association’s sole and absolute discretion. In order to maintain a community of congenial Owners who are financially responsible and thus protect the value of the Units, the leasing and rental of Units by any Owner shall be subject to the following provision, which provision each Unit Owner covenants to observe: (i) no Owner may lease his or her residence for a period less than ninety (90) days without the prior written approval of the Board, which approval is subject to the Board’s sole and absolute discretion; (ii) the Unit Owner must first submit to the Board a copy of the fully executed lease for its approval, to determine whether the term is correct; (iii) the lease must specifically state that the tenant lets the Unit subject to the terms and conditions of this Declaration and that if the Unit Owner becomes delinquent in paying any monetary obligation due to the Association, the Association may demand that the tenant pay to the Association the subsequent rental payments and continue to make such payments until all the monetary obligations of the Unit Owner related to the Unit have been paid in full to the Association and the Association releases the tenant, or until the tenant discontinues tenancy in the Unit. [No Unit shall be rented for more than three (3) times in any calendar year.]
Notwithstanding the above, the Association is entitled to exercise any and all other remedies at law or in equity as against the Unit Owner or the tenant. The tenant does not, by virtue of payment of monetary obligations, have any of the rights of a Unit Owner to vote in any election or to examine the books and records of the Association.
Section 24. Window Treatments. All window coverings shall be lined with [white or off- white lining] on the side exposed to the public, unless otherwise approved by the Board of Directors.
Section 25. Hurricane Shutters. Any hurricane shutters or other protective devices visible from the outside of a Unit shall be of a type approved in writing by the Architectural Review Committee. Hurricane shutters may not be left closed for any extended period beyond the time needed for hurricane protection. Any approved hurricane shutters may be installed or closed up five
(5) days prior to the expected arrival of a hurricane and must be removed or opened within five (5) days after the end of a hurricane watch or warning or as the Board may determine otherwise. Except as the Board may otherwise decide, shutters may not be closed at any time other than a storm event. Any approval by the Committee shall not be deemed as an endorsement of the effectiveness of hurricane shutters.
The following specific restrictions apply to each of the hurricane shutters listed below:
1. Clear hurricane shutters are approved for all windows, entry doors, sliding glass and French doors. These are the only shutters approved to be on the Unit throughout hurricane season (typically June 1st through November 30th).
2. Roll down hurricane shutters are approved for all windows, entry doors, sliding glass and French doors.
3. Galvanized steel shutters are approved for all windows, entry doors, sliding glass and French doors. All shutters must be fully installed, including all slats in place and all such openings covered during a storm event referenced above.
4. Accordion type shutters may be installed but are only approved for windows and doors on the lanai area in the rear, the sides of a Unit, or courtyard area of the Unit. Accordion type shutters are not permitted in the front of the Unit.
5. No other hurricane shutters are permitted without Committee approval.
6. A Unit Owner or occupant who plans to be absent during all or any portion of a hurricane season as defined above must prepare their Unit prior to their departure by designating a responsible firm or individual to care for their Unit should a hurricane threaten the Unit or should the Unit suffer hurricane damage. A Unit Owner must furnish the Association with the names of such firm or individual prior to any storm event.
Section 26. Garage. All garage doors must be closed when not in use. No Unit Owner may convert his or her garage to living space, an office or workshop.
Section 27. Irrigation. All irrigation systems for landscaping in the Community must use non-potable water supplied by Braden River Utilities, LLC (“BRU”) or another supplier of non- potable water that complies with all applicable requirements of applicable laws, regulations and entitlements documents. All such irrigation systems shall include soil moisture sensors that prevent watering when soil moisture exceeds the programmed threshold level. Such equipment shall be of a manufacturer and model approved by BRU or Declarant.
Section 28. Green Build. All Homes constructed within the Community shall be designed and certified in compliance with the Florida Green Build Coalition standards in effect as of May 27, 2016; provided Declarant shall be permitted to switch to the standards of another comparable organization as the standard for new homes in the Community.
Section 29. Declarant Exemption. The provisions of this Article are intended to restrict certain uses that may be harmful or affect the ambience or aesthetic appeal of the Community to be constructed by Declarant. The restrictions are not intended to prohibit Declarant from performing such work as may be necessary in the completion of the work in the Community. The restrictions of this Article shall therefore not be binding upon Declarant in the performance of any of the work required in order to complete construction of the Community.
Section 1. Declarant’s Rights. The Declarant and its successors or assigns will undertake the work of constructing Units and related amenities on the Units and improvements on the Common Areas. The completion of that work and the sale, rental and other disposal of Units is essential to the establishment and welfare of the Community as a community. As used in this Section and its subparagraphs, the words “its successors or assigns” specifically do not include purchasers of completed Units. In order that said work may be completed and the Community established as a fully occupied Community as rapidly as possible, no Owner or the Association shall do anything to interfere with the Declarant’s activities. Without limiting the generality of the foregoing, nothing in this Declaration or the Articles or Bylaws shall be understood or construed to:
(a) Prevent the Declarant, its successors or assigns, or its or their contractors or subcontractors, from doing on any property owned by them or on any Common Areas whatever they determine to be necessary or advisable in connection with the completion of said work, including without limitation, the alteration of its construction plans and designs as the Declarant deems advisable in the course of development (all models or sketches showing plans for future development of the Community may be modified by the Declarant at any time and from time to time, without notice); or
(b) Prevent the Declarant, its successors or assigns, or its or their contractors, subcontractors or representatives, from erecting, constructing and maintaining on any property owned or controlled by the Declarant or on any Common Areas, or its successors or assigns or its or their contractors or subcontractors, such structures as may be reasonably necessary for the conduct of its or their business of completing said work and establishing the Community as a Community and disposing of the same by sale, lease or otherwise; or
(c) Prevent the Declarant, its successors or assigns, or its or their contractors or subcontractors or representatives, from conducting on any property owned or controlled by the Declarant or its successors or assigns, its or their business of developing, subdividing, grading and constructing improvements within the Community and of disposing of Units therein by sale, lease or otherwise; or
(d) Prevent the Declarant, its successors or assigns, from determining in its sole discretion the nature of any type of improvements to be constructed as part of the Community.
Notwithstanding any provisions to the contrary herein, the Declarant expressly reserves the right to retain one or more Units in the Community as a guest house, to be used and enjoyed by the Declarant, its affiliates, employees, invitees, and licensees for any lawful purpose together with access to and use of all Common Areas. Any or all of the special rights and obligations of the Declarant may be transferred to other parties, provided that the transfer shall not reduce an obligation nor enlarge a right beyond that contained herein, and provided further, no such transfer shall be effective unless it is in a written instrument signed by the Declarant and duly recorded in the Public Records of the County. Nothing in this Declaration shall be construed to require Declarant or any successor to develop any property in any manner whatsoever.
Each Owner on his, her or its own behalf and on behalf of such Owner’s heirs, personal representatives, successors, mortgagees, lienors and assigns acknowledges and agrees that the completion of the development of the Community may occur over an extended period of time and that incident to such development and the construction associated therewith the quiet use and enjoyment of the Community and each Unit therein may be temporarily interfered with by the development and construction work occurring on those Units owned by the Declarant or its successors and assigns and each Owner, on such Owner’s own behalf and on behalf of such Owner’s heirs, assigns, personal representatives, successors, mortgagees, lienors and assigns does hereby waive all claims for interference with such quiet enjoyment and use as a result of the development and construction of the balance of the Community. Each Owner, on such Owner’s own behalf and on behalf of such Owner’s heirs, personal representatives, successors, mortgagees, lienors and assigns agrees that the development, construction and completion of the balance of the Community may interfere with such Owner’s original and existing views, light and air and diminish the same and each such Owner on such Owner’s behalf and on behalf of such Owner’s heirs, assigns, personal representatives, successors, mortgagees, lienors and assigns does hereby release the Declarant and its successors in interest and others involved from all claims that they may have in connection therewith.
Section 2. Common Areas.
(a) So long as the Declarant owns land in the Community for development or for sale in the ordinary course of business:
(i) Declarant expressly reserves the right to grant easements and rights- of-way over, under and through the Common Areas; provided, no such easement shall structurally weaken or otherwise interfere with the use of the Common Area by Owners.
(ii) Declarant may in its sole discretion, set aside, convey, lease, grant an easement, license or other use right to real property to the Association within or without the Community for such purposes as may be expressed in the instrument of conveyance, lease or grant of easement, license or other use right. The Association must accept from Declarant any such conveyance, designation, dedication, lease, grant of easement or license, or grant of other use right. No such real property shall be considered to be Common Areas until actually so conveyed, designated, dedicated by platting, leased or a grant of easement, license or other use right is created by a written instrument. The written instrument shall also provide when the area(s) of land are designated, dedicated, conveyed, leased, licensed or a use right is granted to the Association.
(iii) The Association shall not accept from any Person other than Declarant a conveyance, dedication, lease, grant of license or grant of use right except upon the prior
written consent of the Declarant or of the Board of Directors after the Declarant is no longer selling Units in the ordinary course of business or developing said Units.
(iv) Declarant shall have the right and the power to regulate and control the external design and appearance of the Common Areas in such a manner as Declarant deems appropriate as to promote a quality environment which will preserve the value of the Units and to foster the attractiveness and functional utility of the Community as a place to live.
(v) Any use of the Common Areas shall be subject to the prior written approval of Declarant or the Board of Directors after the Declarant is no longer selling Units in the ordinary course of business or developing said Units.
(vi) Declarant shall have the right in its sole discretion to grant easements, licenses or use rights for the Common Areas to Persons that are not Members. The Board of Directors shall have the right to grant easements, licenses and use rights for the Common Areas to Persons that are not Members after the Declarant is no longer selling Units in the ordinary course of business or developing said Units.
(b) Prior to any conveyance, designation, dedication, lease or grant of easement, license or other use right by Declarant to the Association of any property, Declarant shall have the right to charge reasonable fees for the use of such property; thereafter, the right to use such property may be subject to reasonable rents, fees and other charges in favor of the Association; in any event, rents, fees and other charges required to be paid to Declarant under the leases, grants, license or contracts creating the use right shall continue to be paid.
(c) Any real property conveyed, leased or the use of which has been granted by Declarant or any third party to the Association as Common Areas is not and shall not be deemed dedicated for use by the general public but is, and shall be, deemed restricted for the common use and enjoyment of Members, their guests and tenants unless otherwise provided by the Declarant.
(d) No nuisance or obnoxious or offensive activity shall be conducted or permitted on any Common Areas. So long as Declarant owns any Unit located in the Community for development or for sale in the ordinary course of business, the Declarant shall have the right and the power in the exercise of its reasonable discretion to determine what activities or uses constitute nuisances or obnoxious or offensive activity and thereafter the Board of Directors of the Association shall make such determination. Nothing shall be done within the Common Areas which may be or become a nuisance to Residents or Members.
(e) Neither the execution and recordation of this Declaration, nor the creation of the Association or other entity, nor the recordation of any other instrument subjecting any land in the Community to protective covenants and restrictions shall obligate or require Declarant or any other Person to grant any right, power, duty or privilege of any nature or kind to the Association or other entity; or obligate or require Declarant to perform any act permitted under this Declaration or to enforce any covenants, condition, restriction or other provision thereof.
(f) The Declarant and its affiliates shall have the right from time to time to enter upon the Common Areas and other portions of the Community for the purpose of the installation, construction, reconstruction, repair, replacement, operation, expansion and/or alteration of any improvements or facilities on the Common Areas or elsewhere in the Community as the Declarant
and its affiliates, employees and agents, as appropriate, elect to effect. Further, the Declarant and its affiliates, guests and invitees shall have right to use the Common Areas for sales, leasing, customer parking, displays and signs during the period of construction and sale of any of the land owned by the Declarant and its affiliates within the Community, including the operation of a sales office. All of the foregoing shall apply notwithstanding the fact that the Association holds title to the applicable Common Areas as of any relevant time.
Section 3. Development, Sales and Construction Easement.
In addition to the rights reserved elsewhere herein, Declarant reserves an easement for itself or its nominees over, upon, across and under the Property, as may be required in Declarant’s sole opinion, in connection with the development, construction and sale of the Community and other lands designed by Declarant. This right shall include, without limitation, the right to: locate and maintain business offices, construction trailers, models, sales offices, and parking associated therewith; post and maintain signs; and maintain employees in the models and offices. The sales offices and signs and all items pertaining to development and sales shall remain the property of Declarant. Without limiting the foregoing, Declarant specifically reserves the right to use all paved roads and rights of way within the Community for vehicular and pedestrian ingress and egress to and from construction sites and for the construction and maintenance of any Community System provided by Declarant. Specifically, each Owner acknowledges that construction vehicles and trucks may use portions of the Units, and the Common Areas, and Declarant may use portions of the Units and the Common Areas, for storage of construction materials. Declarant shall have no liability or obligations to repave, restore or repair any portion of the Common Area as a result of the use of the same for construction traffic, and all maintenance and repair of such Common Area shall be deemed ordinary maintenance of the Common Areas payable by all owners as part of the assessments. Without limiting the foregoing, at no time shall Declarant be obligated to pay any amount of the Association on account of Declarant’s use of the Common Areas for construction purpose. Declarant intends to use the Common Areas for sales and re-sales of Units. Further, Declarant may market other residences and commercial properties located outside the Community from Declarant’s sales facilities located within the Community. Declarant has the right to use all portions of the Common Areas in connection with its marketing activities, including, without limitation, allowing members of the general public to inspect model homes, installing signs and displays, holding promotional parties and picnics, and any other activities employed in the marketing of homes. The easements created by this Section, and the rights reserved herein in favor of Declarant, shall be construed as broadly as possible and supplement the other rights of Declarant set forth herein. At no time shall Declarant incur any expense whatsoever in connection with its use and enjoyment of such rights and easements.
ALL OWNERS, OCCUPANTS AND USERS OF THE COMMUNITY ARE HEREBY PLACED ON NOTICE THAT DECLARANT AND ITS AGENTS, CONTRACTORS, SUBCONTRACTORS, LICENSEES AND OTHER DESIGNEES WILL BE, FROM TIME TO TIME, CONDUCTING BLASTING, EXCAVATION, CONSTRUCTION AND OTHER ACTIVITIES WITHIN OR IN PROXIMITY TO THE COMMUNITY. BY THE ACCEPTANCE OF HIS OR HER DEED OR OTHER CONVEYANCE OR MORTGAGE, LEASEHOLD, LICENSE, OR OTHER INTEREST, AND BY USING ANY PORTION OF THE COMMUNITY, EACH OWNER, OCCUPANT AND USER ULTIMATELY ACKNOWLEDGES, STIPULATES AND AGREES (i) THAT NONE OF THE AFORESAID ACTIVITIES WILL BE DEEMED NUISANCES OR NOXIOUS OR OFFENSIVE ACTIVITIES, HEREUNDER OR AT LAW GENERALLY, (ii) NOT TO ENTER UPON OR ALLOW CHILDREN, GUESTS OR OTHER PERSONS UNDER THEIR CONTROL OR DIRECTION TO ENTER UPON (REGARDLESS OF
WHETHER SUCH ENTRY IS A TRESPASS OR OTHERWISE) PROPERTY WITHIN OR IN PROXIMITY TO THE AREA WHERE SUCH ACTIVITY IS BEING CONDUCTED (EVEN IF NOT BEING ACTIVELY CONDUCTED AT THE TIME OF ENTRY, SUCH AS AT NIGHT OR OTHERWISE DURING NON-WORKING HOURS); (iii) DECLARANT, THE ASSOCIATION, AND THE OTHER LISTED PARTIES SHALL NOT BE LIABLE BUT, RATHER, SHALL BE HELD HARMLESS FROM ANY AND ALL LOSSES, DAMAGES (COMPENSATORY, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURIES OR DEATHS ARISING FROM OR RELATING TO THE AFORESAID ACTIVITIES, EXCEPT RESULTING DIRECTLY FORM DECLARANT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (iv) ANY PURCHASE OR USE OF ANY PORTION OF THE PROPERTY HAS BEEN AND WILL BE MADE WITH FULL KNOWLEDGE OF THE FOREGOING.
Section 4. Modification.
The development and marketing of the Community will continue as deemed appropriate in Declarant’s sole discretion, and nothing in this Declaration or the Architectural Review Requirements, or otherwise, shall be construed to limit or restrict such development and marketing. It may be necessary or convenient for the development of the Community, as an example and not a limitation, to amend a Plat and/or the Master Plan; modify the boundary lines of the Common Areas; grant easements, dedications, agreements, licenses, restrictions, reservations, covenants and/or rights- of-way; and/or take such other action(s) which Declarant or its agents, affiliates or assignees may deem necessary or appropriate. The Association and Owners shall, at the request of Declarant, execute and deliver any and all documents and instruments which Declarant deems necessary or convenient, in its sole and absolute discretion, to accomplish the same.
Section 5. Promotional Events.
Declarant shall have the right, at any time, to hold marketing, special, and/or promotional events within the Community, without any charge for use of the Property. Declarant, its agents, affiliates and/or assignees shall have the right to market the Community in advertisements and other media by making reference to any portion(s) of the Community, including, but not limited to, pictures of drawings of the Community and Units. All logos, trademarks and designs used in connection with the Community are property of the Declarant, and the Association shall have no right to use same except with the express written permission of the Declarant.
Section 6. Use by Prospective Purchasers.
Declarant shall have the right to use, without charge, the Common Areas for the purpose of entertaining prospective purchasers of Units or other properties owned by Declarant outside of the Community.
Section 7. Enforcement and Inaction.
(a) So long as the Declarant owns land in the Community for development or for sale in the ordinary course of business, Declarant shall have the right and power, but not the obligation, to enforce the covenants, conditions, restrictions and other provisions imposed by this Declaration by any proceeding at law or in equity against any Person violating or attempting to violate such provision, to restrain any violation or attempted violation of such provisions, to require performance of such provisions, to recover damages for violations of such provisions, to levy against
the land to enforce any lien created by this Declaration, and to delegate or assign either exclusively or non-exclusively any or all of its rights, powers, duties or privileges hereunder to the Association, or to an Owner, or to any other Person. In the event Declarant expends any sum of money to enforce the covenants, conditions, restrictions and other provisions imposed by this Declaration, the Association shall immediately reimburse the Declarant for such expenditure. Failure by Declarant, or by the Association or any other Owner or any other Person to enforce any of such provisions shall in no event be deemed a waiver of their right to do so thereafter. After Declarant no longer owns any land in the Community for development or sale in the ordinary course of business, the Association shall have the right and power to enforce the covenants, conditions, restrictions and other provisions imposed by this Declaration.
(b) The costs and reasonable attorneys’ fees, including those resulting from any appellate proceedings, incurred by Declarant or the Association in any action against an Owner to enforce any provisions of this Declaration shall be a personal obligation of such Owner which shall be paid by such Owner and any amount which remains due and unpaid shall be a continuing lien upon the Owner’s Unit collectible in the manner provided in Article VIII.
(c) Notwithstanding anything to the contrary in this Declaration, the terms and provisions of this Article shall not be amended, modified or terminated without the prior written consent of the Declarant so long as Declarant owns any Unit(s) in the Community.
Section 1. Compliance by Owners. Every Owner, Owner’s family, guests, invitees, tenants and employees shall at all times comply with all Bylaws, Rules and Regulations, Community-Wide Standards, Architectural Review Requirements, Use Restrictions, and with the covenants, conditions and restrictions set forth herein and in the deed to his Unit (as hereinafter referred to in this Article, the “Rules”). All violations shall be reported immediately to a member of the Board. Disagreements concerning violations, including interpretation of the Rules, shall be presented to and determined by the Board of Directors, whose interpretation and whose remedial action shall control. In the event that an Owner fails to abide by the Rules, then he or she may be subject to any action, right of entry, fine, or other remedy contained in this Declaration. Each remedy shall be non-exclusive and in addition to all other rights and remedies to which the Declarant or the Association may be entitled. Failure by the Association to enforce any Rules or exercise any right or remedy contained herein shall not be deemed a waiver of the right to do so thereafter.
Section 2. Actions. The Board of Directors may bring an action at law and/or in equity (including an action for injunctive relief), or both, in the name of the Association to enforce the Rules. In such an event, the Association additionally shall be entitled to recover costs and attorneys’ fees.
Section 3. Right of Entry. Violation of the Rules shall give the Association or its duly authorized agent the right to enter a Unit or any portion of the Common Area to summarily abate or remove, at the expense of the Owner, any structure, thing or condition which violates the Rules. The Association shall not be liable in any manner for trespass, abatement or removal, and all costs and fees incurred by the Association may be specifically assessed against the violating Owner and shall be treated as a Specific Assessment otherwise due the Association.
Section 4. Fines. The Board, in its sole discretion, may impose a fine or fines upon an Owner for failure to comply with any obligation, requirement or rule, provided the following procedures are adhered to:
(a) Notice: The Association shall notify the Owner in writing of the non- compliance. Included in the notice shall be the date and time of the next meeting at which the non- compliance will be heard and considered. The notice of the non-compliance to the Owner shall provide, at a minimum, at least fourteen (14) days’ notice prior to the meeting.
(b) Hearing: The noncompliance shall be presented at a meeting before a committee of at least three (3) members appointed by the Board, who are not officers, directors or employees of the Association, or the spouse, parent, child, brother or sister of an officer, director or employee, where the Owners may protest any allegation of non-compliance and any imposition of fines. A written decision of the committee shall be submitted to the Owner not later than twenty-one
(21) days after the meeting. The committee must approve, by a majority vote, the proposed fine, prior to it being imposed.
(c) Fines: The Board of Directors may impose reasonable fines, not to exceed
$100 per violation per day, against any Owner, tenant, guest or invitee for the failure of the owner of the Unit, or its occupant, licensee, or invitee to comply with nay provision of the Declaration, the Bylaws, or reasonable rules of the Association. A fine may be levied by the Board of Directors for each day of a continuing violation, with a single notice and opportunity for hearing as provided pursuant to paragraphs (a) and (b) of Section 4.23 of the Bylaws and as provided in this Declaration, and there shall be no aggregate ceiling on the total fine which may be imposed for a recurring violation.
(d) Payment of Fines: Fines shall be paid not later than thirty (30) days after notice of the imposition.
(e) Assessments: Fines shall be treated as a Specific Assessment otherwise due to the Association. All fines in the aggregate amount of $1,000 or more shall be a charge and continuing lien upon each Unit against which the fine(s) is made until paid. Upon recording of a claim of lien, there shall exist a perfected lien for unpaid fines in the aggregate amount of $1,000 or more on the respective Unit prior and superior to all other liens, except all taxes, bonds, assessments and other levies which by law would be superior thereto, a lien or charge of any first mortgage of record (meaning any recorded mortgage with first priority over other mortgages) made in good faith and for value, but subject to the limitations provided in Section 8 of Article VIII hereof. Such lien may be enforced by suit, judgment and foreclosure.
(f) Application: All monies received from fines shall be allocated as directed by the Board of Directors.
(g) Non-Exclusive Remedy: Any fine paid by the offending Owner shall be deducted from or offset against any damages that the Association may otherwise be entitled to recover by law from such Owner.
Section 5. Suspension of Use & Voting. The Board of Directors may suspend, for a reasonable period of time, the right of a Member, or a Member’s tenant, guest, or invitee, to use the Common Areas and/or facilities for the failure of the Owner or its occupant, licensee or invitee to
comply with any provision of the Declaration, the Bylaws, or reasonable rules of the Association, provided that the Association must provide notice and an opportunity for a hearing as provided under Section 4(a) and (b) of this Article and under Section 4.23 of the Bylaws. however, nothing herein shall authorize the Board of Directors to limit ingress and egress to or from a Unit or access to Common Areas used to provide utility services to a Unit.
If an Owner is delinquent for more than ninety (90) days in paying a monetary obligation due to the Association, the Association may suspend, until such monetary obligation is paid in full, the rights of any Owner, tenant, guest or invitee to use any Common Area and/or facilities. The notice and hearing requirements provided under Section 4(a) and (b) of this Article and under Section 4.23 of the Bylaws do not apply to a suspension of use rights due to a monetary delinquency.
The Association may also suspend the voting rights of a Member for nonpayment of any monetary obligation due to the Association that is delinquent in excess of ninety
(90) days. The notice and hearing requirements provided under Section 4(a) and (b) of this Article and under Section 4.23 of the Bylaws do not apply to a suspension of voting rights due to a monetary delinquency.
Notwithstanding any other provision to the contrary, but only as to this subsection, if Chapter 720, Florida Statutes, is ever amended to provide that the Association shall have the right to exercise the suspension rights (for either use of Common Areas/facilities and/or voting rights) enumerated in this subsection for a monetary delinquency of less than ninety (90) days, or in the event that Chapter 720, Florida Statutes, is ever amended to provide that the Association shall have the right to exercise the suspension rights (for either use of Common Areas/facilities and/or voting rights) enumerated in this subsection for other types of violations, then such rights shall automatically be bestowed upon the Association without need for amending this Declaration or providing any notice.
Section 6. Enforcement. Failure to comply herewith or with such rules and regulations shall be grounds for immediate action. The enforcement of this Declaration may be by proceeding at law for damages or in equity to compel compliance with its terms, or to prevent violation or breach of any of the covenants or terms herein. The Declarant, the Association, or any Owner may, but shall not be required to, seek enforcement of this Declaration. Any Owner who seeks enforcement of this Declaration shall, by his actions, be deemed to have indemnified the Declarant and the Association from all liabilities resulting from his actions. In an action to enforce this Declaration, the non- prevailing party shall pay to the prevailing party all costs and reasonable attorneys’ fees at all trial and appellate levels.
Section 7. Covenants. All provisions of this Declaration shall be construed to be covenants running with the land and with every part thereof and interest therein, and every Unit Owner and claimant of the land or any part thereof or interest therein, and his heirs, executors, administrators, personal representatives, successors, assigns and leases shall be bound by all the provisions of this Declaration. Each Unit Owner, by virtue of taking title to a Unit, hereby agrees that the deed of conveyance of the Unit to a third party shall specifically state that the Unit is subject to the terms of this instrument and shall state the recording book and page information for this instrument as recorded in the public records of Manatee County, Florida. The intent of this provision is to defeat any potential argument or claim that Chapter 712, Florida Statutes, has extinguished the application of this instrument to each of the Units.
Any or all of the rights, powers, obligations, easements and estates reserved or given to the Declarant or the Association may be assigned by the Declarant or by the Association, as the case may be, in whole or in part, to the Association or any other assignee. Any assignment shall be made by appropriate instrument in writing, and any assignee shall expressly agree to assume the rights, powers, duties and obligations contained herein, and the assignor shall be relieved and released of all responsibility and obligations associated with the assigned items.
Portions of the Community shall contain Conservation Areas, as required by SWFWMD, and as more particularly identified on the Plat or pursuant to any conservation easements created pursuant to Section 704.06, Florida Statutes. All Owners are notified that portions of the Units may contain or lie adjacent to Conservation Areas and each Owner shall comply with all use restrictions created herein or pursuant to any conservation easements created for the Conservation Areas. The Association is charged with the duty of perpetually maintaining all Conservation Areas in accordance with the requirements contained in SWFWMD permit pertaining to the Community and any subsequent conservation easements created. All expenses incurred in maintaining the Conservation Areas shall be deemed Common Expenses and the Unit Owners shall be responsible for paying same. The Association is further charged with the duty to perpetually maintain all markers and signage required by SWFWMD permit governing the Community and the Association shall have a perpetual right and easement over the entire Community to maintain the Conservation Areas, and all markers and signs pertaining thereto.
THE CONSERVATION AREAS MAY IN NO WAY BE ALTERED FROM THEIR NATURAL OR PERMITTED STATE. ACTIVITIES PROHIBITED WITHIN THE CONSERVATION AREAS INCLUDE, BUT ARE NOT LIMITED TO, CONSTRUCTION OR PLACING OF BUILDINGS ON OR ABOVE THE GROUND, DUMPING OR PLACING SOIL OR OTHER SUBSTANCES SUCH AS TRASH, REMOVAL OR DESTRUCTION OF TREES, SHRUBS OR OTHER VEGETATION, WITH THE EXCEPTION OF EXOTIC/NUISANCE VEGETATION REMOVAL, EXCAVATION, DREDGING OR REMOVAL OF SOIL MATERIAL, DIKING OR FENCING, AND ANY OTHER ACTIVITIES DETRIMENTAL TO DRAINAGE, FLOOD CONTROL, WATER CONSERVATION, EROSION CONTROL OR FISH AND WILDLIFE HABITAT CONSERVATION OR PRESERVATION.
WATER MANAGEMENT SYSTEM
Section 1. Dedication. The Water Management System is hereby dedicated as part of the Common Areas. The Water Management System shall be the perpetual responsibility of the Association and may in no way be altered from its natural or permitted state.
Section 2. Maintenance and Monitoring. The Association shall be responsible for the maintenance, operation and repair of the Water Management System. Maintenance of the Water Management System shall mean the exercise of practices which allow the system to provide
drainage, water storage, conveyance or other surface water or storm water management capabilities as permitted by the SWFWMD. Any repair or reconstruction of the Water Management System shall be as permitted or if modified, as approved by the SWFWMD. Reinspection reporting shall be performed in accordance with the terms and conditions of the SWFWMD Permit. To the extent there is wetland mitigation on the Property that requires ongoing monitoring and maintenance, the Association shall allocate sufficient funds in its budget for monitoring and maintenance of wetland mitigation areas each year until SWFWMD determines that the areas are successful in accordance with the SWFWMD Permit.
Section 3. Use Restrictions. The Association shall enforce the use restrictions for the Water Management System. Activities prohibited within the Water Management System shall include, but not be limited to:
(a) Digging or excavation;
(b) Depositing fill, debris, or any other material or item;
(c) Constructing or altering any water control structure; or
(d) Any other construction that would modify the Water Management System.
No vegetation in any wetland mitigation area or wet detention pond shall be removed, cut, trimmed or sprayed with herbicide without specific written approval from SWFWMD. Construction and maintenance activities that are consistent with the design and permit conditions approved by SWFWMD in the SWFWMD Permit may be conducted without specific written approval from SWFWMD.
Section 4. Enforcement by District. The SWFWMD shall have the right to enforce, by a proceeding at law or in equity, the provisions contained in this Declaration and take enforcement measures, including a civil action for injunction and/or penalties, against the Association to compel the Association to correct any outstanding problems with the Water Management System.
Section 5. Dissolution of Association. If the Association ceases to exist, then all Unit Owners shall be jointly and severally responsible for operation and maintenance of the Water Management System in accordance with the requirements of the Environmental Resource Permit, unless and until an alternate entity assumes responsibility for such system.
Section 6. Covenant for Maintenance Assessments for Association. Assessments shall also be used for the maintenance and repair of the Water Management System including but not limited to work within retention areas, drainage structures and drainage easements.
Section 7. Easement for Access and Drainage. The Association shall have a perpetual non-exclusive easement over all areas of the Water Management System for access to operate, maintain or repair the system. By this easement, the Association shall have the right to enter upon any portion of any Unit which is a part of the Water Management System at a reasonable time and in a reasonable manner to operate, maintain or repair the Water Management System as required by the SWFWMD permit. Additionally, the Association shall have a perpetual non-exclusive easement for drainage over the entire Water Management System. No person shall alter the drainage flow of the
Water Management System, including buffer areas or swails, without the prior written approval of the SWFWMD.
Section 8. Amendment. Any amendment to this Declaration which alters any provisions relating to the Water Management System, beyond maintenance in its original condition, including the water management portions of the Common Areas, must have the prior approval of the SWFWMD.
Section 1. Mildew. Given the climate and humid conditions in Florida, molds, mildew, toxins and fungi may exist and/or develop within the Unit, and/or the Property. Each Owner is hereby advised that certain molds, mildew, toxins and/or fungi may be, or if allowed to remain for a sufficient period may become, toxic and potentially pose a health risk. By acquiring title to a Unit, each Owner shall be deemed to have assumed the risks associated with molds, mildew, toxins and/or fungi and to have released the Declarant from any and all liability resulting from same.
Section 2. Mitigation of Dampness and Humidity. No Unit Owner, excluding Declarant, shall install, within his or her Unit, or upon the Common Areas, non-breathable wall-coverings or low-permeance paints. Additionally, any and all built-in casework, furniture, and or shelving in a Unit must be installed over floor coverings to allow air space and air movement and shall not be installed with backboards flush against any gypsum board wall. Additionally, all Unit Owners, whether or not occupying the Unit, shall periodically run the air conditioning system to maintain the Unit temperature, whether or not occupied, at 78°F, to minimize humidity in the Unit. While the foregoing are intended to minimize the potential development of molds, fungi, mildew and other mycotoxins, each Owner understands and agrees that there is no method for completely eliminating the development of molds or mycotoxins. The Declarant does not make any representations or warranties regarding the existence or development of molds or mycotoxins and each Owner shall be deemed to waive and expressly release any such warranty and claim for loss or damages resulting from the existence and/or development of same. In furtherance of the rights of the Association as set forth in this Declaration, in the event that the Association reasonably believes that the provisions of this Section are not being complied with, then, the Association shall have the right (but not the obligation) to enter the Unit (without requiring the consent of the Owner or any other party) to turn on the air conditioning in an effort to cause the temperature of the Unit to be maintained as required hereby (with all utility consumption costs to be paid and assumed by the Unit Owner). To the extent that electric service is not then available to the Unit, the Association shall have the further right, but not the obligation (without requiring the consent of the Owner or any other party) to connect electric service to the Unit (with the costs thereof to be borne by the Unit Owner, or if advanced by the Association, to be promptly reimbursed by the Owner to the Association, with all such costs to be deemed charges hereunder).
Section 3. Warranty Disclosure. To the maximum extent lawful, Declarant hereby disclaims any and all and each and every express or implied warranties, whether established by statutory, common, case law or otherwise, as to the design, construction, sound and/or odor transmission, existence and/or development of molds, mildew, toxins or fungi, furnishing and equipping of the Property, including, without limitation, any implied warranties of habitability, fitness for a particular purpose or merchantability, compliance with plans, all warranties imposed by
statute and all other express and implied warranties of any kind or character. Declarant has not given and the Unit Owner has not relied on or bargained for any such warranties. Each Unit Owner, by accepting deed to a Unit, or other conveyance thereof, shall be deemed to represent and warrant to Declarant that in deciding to acquire the Unit, the Unit Owner relied solely on such Unit Owner's independent inspection of the Unit. The Unit Owner has neither received nor relied on any warranties and/or representations from Declarant of any kind, other than as expressly provided herein. All Unit Owners, by virtue of their acceptance of title to their respective Units (whether from the Declarant or another party) shall be deemed to have automatically waived all of the aforesaid disclaimed warranties and incidental and consequential damages. The foregoing shall also apply to any party claiming by, through or under a Unit Owner, including a tenant thereof. Buyer acknowledges and agrees that Declarant does not guarantee, warrant or otherwise assure, and expressly disclaims, any right to view and/or natural light.
Section 4. Unit Measurements. Each Owner, by acceptance of a deed or other conveyance of a Unit, understands and agrees that there are various methods for calculating the square footage of a Unit, and that depending on the method of calculation, the quoted square footage of the Unit may vary by more than a nominal amount. Additionally, as a result of in the field construction, other permitted changes to the Unit, and settling and shifting of improvements, actual square footage of a Unit may also be affected. By accepting title to a Unit, the applicable Owner(s) shall be deemed to have conclusively agreed to accept the size and dimensions of the Unit, regardless of any variances in the square footage from that which may have been disclosed at any time prior to closing, whether included as part of Declarant’s promotional materials or otherwise. Without limiting the generality of this Section, Declarant does not make any representation or warranty as to the actual size, dimensions or square footage of any Unit, and each Owner shall be deemed to have fully waived and released any such warranty and claims for losses or damages resulting from any variances between any represented or otherwise disclosed square footage and the actual square footage of the Unit.
Section 5. Building Area. Units adjacent to water bodies within the Community may actually contain less building area than reflected on the Plat, and no Owner shall have any claim(s), cause(s) of action or basis for any demand(s) against Declarant and/or the Association as a result thereof or in relation thereto.
Section 6. Security. The Association will strive to maintain the Community as a safe, secure residential environment. HOWEVER, NEITHER THE ASSOCIATION NOR THE DECLARANT SHALL IN ANY WAY BE CONSIDERED GUARANTORS OF SECURITY WITHIN THE COMMUNITY, NEITHER THE ASSOCIATION NOR THE DECLARANT SHALL HAVE ANY OBLIGATION TO AFFIRMATIVELY TAKE ANY ACTION IN ORDER TO MAINTAIN THE COMMUNITY AS A SAFE, SECURE RESIDENTIAL ENVIRONMENT, AND NEITHER THE ASSOCIATION NOR THE DECLARANT SHALL BE HELD LIABLE FOR ANY LOSS OR DAMAGE BY REASON OF FAILURE TO PROVIDE ADEQUATE SECURITY OR INEFFECTIVENESS OF SECURITY MEASURES UNDERTAKEN. ALL OWNERS, TENANTS, GUESTS AND INVITEES OF ANY OWNER, AS APPLICABLE, ACKNOWLEDGE THAT THE ASSOCIATION, ITS BOARD, THE DECLARANT AND COMMITTEES ESTABLISHED BY ANY OF THE FOREGOING ENTITIES, ARE NOT GUARANTORS AND THAT EACH OWNER, TENANT, GUEST AND INVITEE ASSUMES ALL RISK OF LOSS OR DAMAGE TO PERSONS, LOTS, UNITS AND TO THE CONTENTS OF UNITS AND FURTHER ACKNOWLEDGE THE ASSOCIATION, ITS BOARD, THE DECLARANT AND COMMITTEES ESTABLISHED BY ANY OF THE FOREGOING ENTITIES HAVE MADE NO
REPRESENTATIONS OR WARRANTIES, NOR HAS ANY OWNER, TENANT, GUEST OR INVITEE RELIED UPON ANY REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE RELATIVE TO ANY SECURITY MEASURES RECOMMENDED OR UNDERTAKEN.
Section 7. Notices and Disclaimers as to Community Systems. Declarant, its affiliated entity, the Association, their successors or assigns may enter into contracts for the provision of security services through any Community Systems. DECLARANT, ITS AFFILIATED ENTITY, THE ASSOCIATION, THEIR SUCCESSORS OR ASSIGNS DO NOT GUARANTEE OR WARRANT, EXPRESSLY OR IMPLIEDLY, THE MERCHANTABILITY OR FITNESS FOR USE OF ANY SUCH SECURITY SYSTEM OR SERVICES, OR THAT ANY SYSTEM OR SERVICES WILL PREVENT INTRUSIONS, NOTIFY AUTHORITIES OF FIRES OR OTHER OCCURRENCES, OR THE CONSEQUENCES OF SUCH OCCURRENCES, REGARDLESS OF WHETHER OR NOT THE SYSTEM OR SERVICES ARE DESIGNED TO MONITOR SAME; AND EVERY OW