DECLARATION
OF COVENANTS, CONDITIONS, EASEMENTS, RESERVATIONS AND
TABLE OF CONTENTS
ARTICLE
I –
Definitions
Page
Section
1 Annexation Agreement
2
Section 2 Area of Common Responsibility
2
Section 3 Articles of Incorporation
2
Section 4 Assessment
2
Section 5 Board of Directors
2
Section 6 Bylaws
2
Section 7 Class B Control Period.
2
Section 8 Common Area
3
Section 9 Common Expenses
3
Section 10 Community Architectural Review Committee
4
Section 11 Community Association
4
Section 12 Community Declarant
4
Section 13 Community Declaration
4
Section 14 Community Development District
4
Section 15 Development Approvals
4
Section 16 Development Order
4
Section 17 District
5
Section 18 District Association
5
Section 19 District Declarant
5
Section 20 District Declaration
5
Section 21 District Drainage System
5
Section 22 District Property
5
Section 23 Master Drainage System
5
Section 24 Mortgage
6
Section 25 Mortgagee
6
Section 26 Owner
6
Section 27 Person
6
Section 28 Plat
6
Section 29 Regular Assessment
6
Section 30 Special Assessment
6
Section 31 Supplemental Declaration
6
Section 32 Unit
6
Section 33 Unplatted Parcel
7
Section 34 Voting Member
7
Section 35 Defined Terms in Community Declaration
7
-
-
ARTICLE
II -
Property Rights
Section
1 Rights of Owners
7
Section 2 Leasing
8
Section 3 Time -
Share Prohibition
8
Section 4 Board of Director’s Rights
9
Section 5 Withdrawal
9
Section 6 Amendment
9
ARTICLE
III -
District Association
Section
1 Objects, Purposes and Function
9
Section 2 Duties and Powers
10
Section 3 Membership
10
Section 4 Transfer of Membership
10
Section 5 Voting Rights
10
Section 6 Cumulative Voting
11
Section 7 District
11
ARTICLE IV -
Maintenance
Section
1 District Association’s Responsibility
11
Section 2 Owner’s Responsibility
12
Section 3 Community Association
13
Section 4 Determination of District Standard
13
ARTICLE
V -
Use Restrictions
Section
1 Water and Sewage Facilities
15
Section 2 Landscaping
15
Section 3 Vehicles and Repair
15
Section 4 Storage
15
Section 5 Wells
15
Section 6 Signs
15
Section 7 Parking and Garages
16
Section 8 Animals and Pets
16
Section 9 Nuisance
17
Section 10 Antennas; Satellite Dishes
17
Section 11 Clotheslines, Garbage Cans and Tanks,
and External Equipment
18
Section 12 Swimming Pools
Section 13 Tents, Trailers and Temporary Structures
18
Section 14 Drainage
18
Section 15 Lakes, Ponds, Retention and Other Water Areas 18
Section 16 Walls, Fences and Mailboxes
20
Section 17 Residential Dwelling Size
20
Section 18 Motorized Vehicles
20
Section 19 Cable Television System
20
Section 20 Community-Wide Standard
20
Section 21 Development Order
21
Section 22 Occupants Bound
21
Section 23 Subdivision of Portion of the District Property
21
Section 24 Garage Sales
21
Section 25 Artificial Vegetation
22
Section 26 Casualty Destruction to Improvements
22
Section 27 Decorations
22
Section 28 Hurricane Shutters
22
Section 29 Substances
22
Section 30 Visibility on Corners
22
Section 31 Wetlands Areas
22
Section 32 Window Treatments
23
Section 33 Landscaping on Common Area
23
Section 34 Disputes as to Use
23
Section 35 Enforcement
23
ARTICLE
VI -
Annexation of
Additional Property
Section 1 Annexation
24
Section 2 Residential District
24
Section 3 Amendment
25
ARTICLE
VII -
Assessments
Section 1 Creation of Assessments
25
Section 2 Adoption of Budget
27
Section 3 Special Assessments
28
Section 4 Lien for Assessments
29
Section 5 Date of Commencement of Assessments
30
Section 6 Subordination of the Lien to First Mortgages 30
Section 7 Exempt Property
31
Section 8 Billing of Assessments by the Community Association
31
ARTICLE VIII -
General Provisions
Section 1 Term
32
Section 2 Easements for Utilities and Other
Services
32
Section 3 Future Easements
32
Section 4 Enforcement
33
Section 5 Indemnification
34
Section 6 Litigation
34
Section 7 Cumulative Effect; Conflict
35
Section 8 Severability
35
Section 9 Easements of Encroachment
35
Section 10 Development and Construction by
District Declarant
36
Section 11 Construction Activity by District
Declarant
36
Section 12 Community Association Empowered to
Enforce District Declaration
36
Section 13 Wildlife, Wetland Programs and
Other Components of Development Order
36
Section 14 ARC Approval
37
ARTICLE IX -
Declarant’s Rights
Section 1 Assignment of Rights
37
Section 2 Development Activities
37
Section 3 Approval of Additional Covenants
and Plats of the District Property
38
Section 4 Amendment
38
ARTICLE X -
Amendment
38
EXHIBITS
EXHIBIT
A -
District Property
EXHIBIT B -
Articles of
Incorporation
EXHIBIT C -
Bylaws
DECLARATION
OF COVENANTS, CONDITIONS, EASEMENTS,
RESERVATIONS AND
THIS DECLARATION OF COVENANTS, CONDITIONS, EASEMENTS,
RESERVATIONS AND RESTRICTIONS FOR AUBURN LAKES RESIDENTIAL DISTRICT (hereinafter
referred to as this “District Declaration”) is made this _____
day of ________________,
2002 by THE VIERA
COMPANY, a
W I T N E S S E T
H:
WHEREAS, District Declarant is the owner that certain real
property located in Brevard County, Florida, being all of the property described
in Exhibit “A”, attached hereto and made a part hereof (hereinafter referred
to as the “District Property”);
WHEREAS, the District Property is a portion of the
Properties as that term is defined in that certain First Amendment to and
Restatement of Declaration of Covenants, Conditions, Easements, Reservations and
Restrictions for Viera East Community (formerly referred to as Viera Southeast
Community) recorded in Official Records Book 3225, Page 4071, Public Records of
Brevard County, Florida, as supplemented, restated and amended from time to time
(hereinafter referred to as the “Community Declaration”) ;
WHEREAS, the Community Declaration anticipates the
formation of various Districts (as defined in the Community Declaration) within
the Properties as separately denominated residential, commercial, industrial,
office, governmental, educational, institutional or other use areas subject to
the Community Declaration as provided therein;
WHEREAS, District Declarant desires to designate the District Property as a
separately denominated residential District subject to the Community Declaration
as provided therein;
WHEREAS, The Viera Company (f/k/a Duda Lands, Inc.), a
Florida corporation, as Declarant under the Community Declaration
(hereinafter referred to as “Community Declarant”) ,
desires to
consent to the imposition of this District Declaration upon the
District Property as required under the terms of the Community
Declaration; and
WHEREAS, District Declarant intends to impose on the
District Property mutually beneficial restrictions under a general plan of
improvement.
NOW, THEREFORE, District Declarant hereby declares that the
above recitals are true and correct, and that the District Property, and any
additional property as is hereinafter subjected to this District Declaration in
accordance with its terms, shall be held, sold and conveyed subject to the
following covenants, conditions, easements, reservations and restrictions, which
are for the purpose of protecting the value and desirability of, and which shall
run with, the real property subjected to this District Declaration and which
shall be biding on all parties having any right, title or interest in the real
property subjected to this District Declaration or any part thereof, their
heirs, successors, successors in title and assigns.
ARTICLE
I
Definitions
Section 1. “Annexation Agreement” shall
mean an amendment or supplement to this District Declaration which subjects
additional property to this District Declaration in accordance with the terms of
this District Declaration.
Section 2. “Area of Common Responsibility” shall
mean and refer to the Common Area, together with those areas, if any, which by
the terms of this District Declaration or by contract or agreement become the
responsibility of the District Association to maintain, administer or operate.
Section 3. “Articles of Incorporation” shall
mean and refer to the Articles of Incorporation of the District
Association attached hereto as Exhibit ‘B” and incorporated herein by
reference, which have been filed or which simultaneously herewith are being
filed with the Secretary of State of the State of Florida, as same may be
amended from time to time.
Section 4. “Assessment”
shall be an inclusive term referring to both Regular Assessments and Special
Assessments.
Section 5. “Board of Directors”
shall mean and refer to the Board of Directors of the District Association.
Section 6. “Bylaws” shall mean and refer to the Bylaws of the
District Association attached hereto as Exhibit “C” and incorporated herein
by reference, which have been adopted or which simultaneously herewith will be
adopted, as amended from time to time.
Section 7. “Class B Control Period” shall mean and refer to
the period beginning upon the filing of the Articles of Incorporation of the
District Association and continuing until the first to occur of the following:
(a) when seventy-five percent (75%) of the Units permitted
by the Development Order and other Development Approvals for the District
Property and the property which is subject to annexation under the provisions of
this Declaration, have certificates of occupancy issued thereon and have been
conveyed to Persons other than the District Declarant and Owners holding title
solely for the purpose of development and sale;
(b) December 31, 2012; or
(c) when, in its discretion, the District Declarant so
determines.
Section 8. “Common Area” shall mean and refer to all real
and personal property and easements and other interests therein, together with
the facilities and improvements located thereon, if any, which the District
Association now or hereafter owns or otherwise holds for the common use and
enjoyment of all Owners, including without limitation, a pool club and related
improvements. The District Association may or may not own any Common Area in fee
simple; provided however, before the U.S. Department of Housing and Urban
Development insures the first mortgage on a Unit in the District Property,
District Declarant (or Community Declarant) shall convey the Common Area, if
any, to the District Association in fee simple released from any encumbrance
securing the repayment of monetary obligations incurred by District Declarant
(or Community Declarant), and from all other encumbrances then of record, but
subject however to all other matters of record, including without limitation
easements, the District Declaration, the Community Declaration, the Community
Development District and ad v1orem real property taxes for the year of
conveyance. The Common Area shall not be mortgaged or conveyed (except to the
District Association) without the consent of at least two-thirds of the Owners,
excluding the District Declarant. The District Association shall accept title to
any real estate or personal property offered to the District Association by
District Declarant or Community Declarant. If ingress or egress to any Unit is
through the Common Area, any conveyance or encumbrance of such Common Area shall
be subject to the Unit Owner’s easement for ingress and egress.
Section 9. “Common Expenses” shall mean and include the
actual and estimated expenses incurred by the District Association for the
maintenance, repair and operation of the Area of Common Responsibility or for
the general benefit of all Owners or for the benefit of Owners within a specific
phase or portion of the District Property, including, without limitation,
salaries and benefits of employees, management fees and costs,
administrative expenses of operating the District Association and reasonable
reserves for the maintenance, repair and replacement of replaceable assets or
for such other purposes as the Board of Directors may determine, .all as may be
found to be necessary and appropriate by the District Association pursuant to
this District Declaration, the Bylaws and the Articles of Incorporation. In the
event the Community Association determines -the District Association has failed
to perform its responsibilities under the District Declaration, then the expense
of those responsibilities of the District Association performed by the Community
Association shall be deemed Common Expenses. The Common Expenses shall also
include, if the Community Association so elects, any amounts that are assessed
by the Community Association pursuant to the Community Declaration.
- Section 10. “Community Architectural Review Committee” or
“ARC” shall mean and refer to the Community Architectural Review Committee
established pursuant to the Community
Declaration.
Section 11. “Community Association” shall mean and refer to
Viera East Community Association, Inc., a
Section 12. “Community Declarant” shall mean and refer to
The Viera Company, a
Section 13. “Community Declaration” shall mean and refer to
that certain First Amendment to and Restatement of Declaration of Covenants,
Conditions, Easements, Reservations and Restrictions for Viera East Community
(formerly referred to as Viera Southeast Community) recorded in Official Records
Book 3225, Page 4071, Public Records of Brevard County, Florida, as
supplemented, restated and amended from time to time.
Section 14. “Community Development District” shall mean and
refer to the Viera East Community Development District, a local unit of
special-purpose government created pursuant to Chapter 190, Florida Statutes,
which Community Development District may pertain to all or portions of the
District Property and all or portions of the Properties, and which may also
pertain to certain real property not forming a part of the Properties.
Section 15. “Development Approvals” shall mean and refer to
the Development Order and any and all subdivision and other governmental permits
and approvals obtained with respect to the District Property or any part
thereof, and relevant zoning and comprehensive plan designation for District
Property or any part thereof.
Section 16. “Development Order” shall mean and refer to that
certain Amended and Restated Development Order contained in Resolution 99-288
issued by
Section 17. “District” shall mean and refer to the Auburn Lakes
Residential District which comprises all or a portion of Tracts F-4 and F-S of
Viera in the records of the Community Declarant, which shall include the
District Property. District Declarant and Community Declarant pursuant to the
terms of this District Declaration and the Community Declaration have the right
as provided herein and therein, but not the obligation, to add additional
property to the District, which may include, without limitation, the property
described generally in Article VI, Section 1 of this District Declaration.
Section 18. “District Association” shall mean and refer to
Auburn Lakes Residential District Association, Inc., a
Section 19. “District Dec1arnt” shall mean and refer to The
Viera Company, a Florida corporation, or its successors, successors-in-title or
assigns who are designated as the District Declarant hereunder in a recorded
instrument executed by the immediately preceding District Declarant, provided,
however, in no event shall there be more than one District Declarant for the
District Property at any given time.
Section 20. “District Declaration” shall mean and refer to
this Declaration of Covenants, Conditions, Easements, Reservations and
Restrictions for Auburn Lakes Residential District, as supplemented and amended
from time to time.
Section 21. “District Drainage System” shall mean and refer
to all land, easements, structures and other facilities and appurtenances which
together constitute and comprise the surface water management and drainage
system of the District Property (or portions thereof) and serve more than one
Unit or Unplatted Parcel as approved by District Declarant.
Section 22. “District Property” shall mean and refer to the
real property described in Exhibit “A”, and such other real property as from
time to time may be subjected to the covenants, conditions an& restrictions
of the District Declaration by annexation as more fully set forth in Article VI
hereof.
Section 23. “Master Drainage System” shall mean and refer to
all land, easements, structures and other facilities and appurtenances which
together constitute and comprise the master surface water management and
drainage system of the Properties (or portions thereof) and adjacent property as
reflected on plans therefore now or hereafter on file with and approved by
Brevard County, Florida and the St. Johns River Water Management District.
- Section 24. “Mortgage” shall mean and refer to a mortgage, deed of
trust, deed to secure debt, or other form of security deed.
Section 25. “Mortgagee” shall mean and refer to a beneficiary or
holder of a Mortgage.
Section 26. “Owner” shall mean and refer to one (1) or more Persons
who hold the record title to any Unit or Unplatted Parcel which is part of the
District Property, including any builder or building contractor, and the
District Declarant, but excluding in all cases any party holding an interest
merely as security for the performance of an obligation. If a Unit or Unplatted
Parcel is sold under a recorded contract of sale, and the contract specifically
so provides, then the purchaser (rather than the fee owner) will be deemed the
Owner.
Section 27. “Person” shall mean and refer to a natural person, a
corporation, a partnership, an estate, a trust, a trustee or other legal entity.
Section 28. “Plat” shall mean and refer to the plat of any portion
of the District Property.
Section 29. “Regular Assessment” shall mean and refer to the
Assessments levied against all Units and Unplatted Parcels in the District
Property to fund Common Expenses in accordance with Section 1 of Article VII of
this District Declaration.
Section 30. “Special Assessment” shall mean and refer to
Assessments levied in accordance with Section 3 of Article VII of this District
Declaration.
Section 31. “Supplemental Declaration” shall mean and refer
to an amendment or supplement to this District Declaration which imposes
expressly or by reference, additional restrictions and obligations on the land
described therein.
Section 32. “Unit” shall mean and refer to a
Section 33. “Unplatted Parcel” shall mean a portion of the
District Property which is not platted or submitted to condominium or
cooperative ownership, but intended for development of more than one Unit, or if
platted, is platted into a lot(s) intended for development of more than one
Unit. Once an Unplatted Parcel or portion thereof is platted into Units or
submitted to condominium or cooperative ownership, the Unplatted Parcel or
portion thereof so platted or submitted shall no longer be deemed an Unplatted
Parcel.
Section 34. “Voting Member” shall mean and refer to the
representative (or such representative’s alternate if he is unable to attend a
meeting of the Commui3ity Association) selected by the District Association to
be responsible for casting all votes of the membership of the Community
Association attributable to Units or Unplatted Parcels in the District for all
matters requiring the vote of membership of the Community Association, unless
otherwise expressly specified in the Community Declaration or bylaws of the
Community Association. The Voting Member of the District shall be the president
of the District Association, unless a majority of the Board of Directors shall
determine to appoint another representative as the Voting Member for the
District. The alternate Voting Member shall be the secretary of the District
Association, unless a majority of the Board of Directors shall determine to
appoint another representative as the alternate Voting Member for the District.
Section 35. Defined Terms in Community Declaration. Capitalized
terms not otherwise defined in the District Declaration, but defined in the
Community Declaration, shall have the meaning set forth in the Community
Declaration unless the context shall otherwise require.
ARTICLE
II.
Property Rights
Section 1. Rights of Owners. Every
Owner shall have a non-exclusive right and easement of use and enjoyment in and
to the Common Area for the purpose for which it is intended, subject to this
District Declaration as it may be amended from time to time, any easements
reserved therein or granted by District Declarant or Community Declarant, any
terms and conditions of the Community Declaration as it may be amended from time
to time, and to any restrictions or limitations contained in any plat and in any
deed conveying such property to the District Association or subjecting such
property as Common Area to the District Declaration. Such non-exclusive right or
easement is subject to (I) the
right of the District Association to limit the number of guests of Owners or
Owners who may use the Common Area from time to time; (ii) the right of the
District Association to
promulgate, establish and enforce reasonable rules and
regulations pertaining to the use of the Common Area; and (iii) the right of the
District Association to take such steps as are reasonably necessary to maintain,
preserve and protect the Common Area. Any Owner may delegate his right of
enjoyment in and to the Common Area to the members of his family, his tenants,
guests or invitees, as applicable, subject to reasonable regulation by the Board
of Directors of the District Association and in accordance with procedures it
may adopt. An Owner of a Unit who leases his Unit shall not be deemed to have
delegated such rights to the Unit’s lessee, except to the extent provided in
the lease. No Owner may exempt himself from personal liability for or exempt his
Unit or Unplatted Parcel from any Assessments duly levied by the District
Association, or release the Unit or Unplatted Parcel owned by the Owner from
liens, charges, encumbrances and other provisions of this District Declaration
or the rules and regulations of the District Association by (a) the voluntary
waiver of the right, privilege and easement for the use and enjoyment of the
Common Area; or (b) the abandonment of his Unit or Unplatted Parcel.
Section 2. Leasing. n
Owner shall be allowed to lease his Unit or Unplatted Parcel, provided that any
such lease shall require the tenant there under to comply with the terms and
conditions of the District Declaration, Bylaws, Articles of Incorporation,
Community Declaration, bylaws and articles of incorporation of the Community
Association, and provided further that such lease and tenancy is otherwise in
compliance with any rules and regulations promulgated by the District
Association or the Community Association. No lease of a Unit or Unplatted Parcel
shall be for a term of less than six (6) months, and any such lease shall be in
writing and shall be enforceable by the District Association and the Community
Association, whether or not so stated in its terms. During the term of any
lease, Owner shall not be relieved of any obligations under the terms of the
District Declaration and Community Declaration, and Owner shall be liable for
the actions of his tenants which may be in violation of the terms and conditions
of the District Declaration, Community Declaration, any rules and regulations
there under and any other documents set forth above, notwithstanding the fact
that the tenants are also fully liable for any violation of the documents and
regulations. In the event a tenant, occupant, guest, invitee or person living
with the tenant or occupant violates the District Declaration, Bylaws, Articles
of Incorporation, the Community Declaration, the bylaws or articles of
incorporation of the Community Association, or the rules and regulations of the
District Association or Community Association, the District Association or
Community Association as appropriate, shall have the power to bring an action or
suit against the tenant, occupant, guest, invitee and the Owner, or any
combination of the foregoing, to recover sums due for damages or injunctive
relief, or for any other remedy available at law or in equity.
Section 3. Time-Share Prohibition. No
time sharing plan as the term is defined in Chapter 721, Florida Statutes (1993),
as amended, or any
similar plan of fragmented or interval ownership of Units or Unplatted Parcels
shall be permitted on the District Property, and no attempt to create same by
lease or otherwise shall be allowed.
Section 4. Board of Director’s Rights. The
Board of Directors, in its sole discretion, by resolution may extend permission
to selected non-owners of any interest in the District Property, to use portions
of the Common Area subject to such terms and conditions as the Board of
Directors may impose.
Section 5. Withdrawal. District
Declarant reserves
the right to amend this District Declaration unilaterally at any time so long as
District Declarant owns any land which is subject to this District Declaration,
for the purpose of removing certain portions of the District Property then owned
by District Declarant, its affiliates or the District Association from the
purview, operation and effect of this District Declaration, provided, however,
two-thirds of the Owners approve such amendment. For such an amendment to have
effect, the Community Declarant must consent thereto and such amendment setting
forth the withdrawal must be filed in the Public Records of Brevard County,
Florida with the consent of the Community Declarant attached.
Section 6. Amendment. This
Article shall not be amended without the written consent of District Declarant,
unless District Declarant no longer owns any land which is subject to the
District Declaration or subject to annexation to the District Declaration.
ARTICLE
III
District Association
Section 1. Objects, Purposes and Function. The
District Association has been created and established for the objects and
purposes of and shall have exclusive jurisdiction over and the sole
responsibility for the administration, management, operation, regulation, care,
maintenance, repair, restoration, replacement, preservation and protection of
the Common Area and to the extent provided by agreement or otherwise of that
portion of the Area of Common Responsibility which is not a part of the Common
Area; the establishment, levy, imposition, enforcement and collection of all fines, charges and
Assessments for which provision is made in this Declaration; the payment of all
Common Expenses; and the promotion and advancement of the general welfare of the
members of the District Association; subject in all cases to the right of the
Community Association to act in the place and stead of the District Association,
in the event the District Association fails to carry out its rights and
responsibilities as provided under the District Declaration, the Articles of
Incorporation and Bylaws; all as more particularly provided in this District
Declaration and in the Articles of Incorporation, Bylaws and rules of
regulations of the District Association.
Section 2. Duties and Powers. In
addition to those duties and powers conferred by law and those specified and
enumerated in the Articles of Incorporation and the Bylaws, the District
Association shall have such duties and powers as are, respectively, imposed and
conferred upon it pursuant to this District Declaration, including, without
limitation, such duties and powers as may reasonably be implied from, necessary
for or incidental to the accomplishment of the objects and purposes for which
the District Association has been created and established. All duties and powers
of the District Association shall be exercised by the Board of Directors unless
otherwise provided in this District Declaration, the Articles of Incorporation
and the Bylaws.
Section 3. Membership. Every
Owner shall be deemed to have a membership in the District Association. No
Owner, whether one (1) or more Persons, hall have more than one (1) membership
per Unit or Unplatted Parcel owned. The membership shall not be refused, waived
or surrendered, but voting rights and rights of use and enjoyment of the Common
Area may be regulated or suspended as provided in this District Declaration, the
Articles of Incorporation, the Bylaws and rules and regulations adopted by the
District Association.
Section 4. Transfer of Membership. Membership
in the District Association shall be appurtenant to and may not be separated
from the ownership interest of an Owner in a Unit or Unplatted Parcel. The
membership of an Owner in the District Association shall not be transferred,
pledged or alienated in any way, except that such membership shall automatically
be transferred and assigned upon the transfer of the ownership interest required
for membership in the District Association. Owner agrees to immediately notify
the District Association upon such transfer and to deliver to the District
Association the address of the new Owner, and a copy of the deed conveying the
Unit or Unplatted Parcel to the new Owner.
Section 5. Voting Rights. The
District Association shall have two (2) classes of membership, Class “A” and
Class “B”, as follows:
(a) Class “A” members shall e all Owners with the
exception of the Class “B” member, if any. Voting rights shall be allocated
among Class “A” members as follows: (i) One (1) vote per acre or portion
thereof shall be allocated to an Unplatted Parcel; and (ii) For those portions
of the District which are subject to a Plat or are otherwise designated by
District Declarant as a Unit, each Unit shall be allocated one (1) vote.
(b) The Class “B” member shall be the District
Declarant. The Class “B” member shall have 800 votes until the Class “B”
membership terminates and becomes converted to Class “A” membership. The
rights of the Class “B” member, including the right to approve actions taken
under this District Declaration and the Bylaws, are specified elsewhere in this
District Declaration and the Bylaws. The Class “B” member shall be entitled
to appoint the members of the Board of Directors during the Class Control
Period, as provided in the Bylaws. The Class “B” membership shall terminate
and become converted to Class “A” membership upon the earlier of:
(i) Upon the expiration of the Class “B” Control
Period; or
(ii) When, in its discretion, the District Declarant so
determines.
Section 6. Cumulative Voting. No
cumulative voting shall be permitted.
Section 7. District. The
District of which the District Property forms a part may have additional lands
annexed thereto in accordance with the terms of the Community Declaration,
including without limitation, the property described generally in Article VI,
Section 1 of this District Declaration, and further may be modified subject to
the terms and conditions of the Community Declaration pertaining to designation
of Districts (as defined therein) and their reconfiguration. Those portions of
the District not subjected to the terms and conditions of this District
Declaration may, but shall not be obligated to, become a part of the District
Property, in the sole discretion of the District Declarant. Such annexation of
additional property into the District Property, if any, may be accomplished in
accordance with the terms and provisions of Article VI hereof, and may or may
not include if so determined in the sole discretion of the District Declarant
and Community Declarant, lands located outside the District, all as further
provided in Article VI hereof and as provided in the Community Declaration.
ARTICLE
IV
Maintenance
Section 1. District Association’s Responsibility. The
District Association shall maintain and keep in good repair the Area of Common
Responsibility, such maintenance to be funded as hereinafter provided. This
maintenance shall include, but need not be limited to, maintenance, repair,
restoration and replacement, subject to any insurance then in effect, of all
landscaping and other flora, structures and improvements situated upon or under
the Area of Common Responsibility, including but not limited to, recreational
amenities, if any, drainage and irrigation systems, recreation and open space,
utilities, private streets, medians, Street lights, entry features and signage,
traffic control devices and pedestrian systems, and such other actions as may be
required pursuant to the terms and conditions of any agreement of the District
Association, the District Declaration and the Community Declaration. The
District Association shall also maintain and keep in good repair such portions
of any additional property not included within the Area of Common Responsibility
as may be dictated by this District Declaration, or by a contract or agreement
for maintenance thereof by the District Association or by a governmental entity
or agency. In the discharge of its responsibilities, the District Association
shall comply fully with the Development Order and other Development Approvals to
the extent relevant and applicable to the Common Area or the District
Association’s duties and responsibilities. Except as otherwise specifically
provided herein, all costs associated with maintenance, repair and replacement
of the Area of Common Responsibility and additional property (as provided above)
shall be a Common Expense to be allocated among all Units and Unplatted Parcels
as part of the Assessments.
The District Association may maintain property which it does not own (in
addition to those portions of the Area of Common Responsibility which it does
not own), including, without limitation, property dedicated to the public, if
the Board of Directors determines that such maintenance is necessary or
desirable to maintain the Community-Wide Standard (as defined in the Community
Declaration)
Section 2. Owner’s Responsibility. Each
Owner (and any owner of a portion of the District Property not within a Unit or
Unplatted Parcel) shall maintain his or her Unit or Unplatted Parcel (or portion
of the District Property) and all structures, parking areas, landscaping, lakes,
ponds, retention and other water areas not a part of the Master Drainage System
or the District Drainage System, and other improvements comprising the Unit or
Unplatted Parcel (or portion of the District Property) in good repair and in a
manner consistent with this District Declaration and any standard established by
the Board of Directors, and in any District planning and design criteria, as
well as the Community-Wide Standard, and all applicable covenants, including
those contained within the Community Declaration and the District Declaration,
unless such maintenance responsibility is otherwise assumed by or assigned to
the District Association. Each Owner of a Unit or Unplatted Parcel adjacent to a
lake, pond, retention or other water area or adjacent to a conservation or other
wildlife area shall also maintain the portion of such water area or wildlife
area located between such Owner’s Unit and the ordinary high water line of any
such water area or the natural vegetation line of any such wildlife area. In
addition, each Owner shall also maintain that portion of any street right-of-way
located between such Owner’s Unit or Unplatted Parcel and the street pavement
within such right-of-way in a manner consistent with this District Declaration
and any standard established by the Board of Directors. f any Owner fails
properly to perform his or her maintenance responsibility, the District
Association, in its sole discretion, shall have a right of entry upon such Unit
or Unplatted Parcel (or portion of the District Property) and may perform such
maintenance and assess all costs incurred by the District Association (together
with an overhead expense to the District Association of fifteen percent (15%) of
the total amount thereof) against the Unit or Unplatted Parcel (or portion of
the District Property) and the Owner (or owner) thereof in accordance with
Section 3 of Article VII of this District Declaration; provided, however, except
when entry is required due to an emergency situation, the District Association
shall afford the Owner (or owner) reasonable notice and an opportunity to cure
the problem prior to entry. The District Association shall have no obligation to
perform any such maintenance, unless required to do so under the District
Declaration or Community Declaration. The determination as to whether a Unit or
Unplatted Parcel (or portion of the District Property) and all structures,
parking areas, landscaping and other improvements are being maintained in good
repair and in a manner consistent with the foregoing shall be made by the Board
of Directors, except to the extent the RC may otherwise determine as to the
Community-Wide Standard.
Section 3. Community Association. If
the District Association fails to perform its maintenance responsibility as
required herein and in the Community Declaration, the Community Association
shall have a right of entry and may perform same and assess the cost thereof,
all as provided in the Community Declaration.
Section 4. Determination of District Standard. The
District Declarant or District Association may establish a standard for the
District as to conduct, maintenance or other activity generally prevailing
throughout the District, which standard, if established, shall at least meet
that of the Community-Wide Standard. In the event such a standard is
established, it may be amended by the District Declarant or District Association
and may be enforced by the District Declarant, District Association or Community
Association. Notwithstanding the foregoing, the ARC shall determine whether the
District or any portion thereof, and all structures, parking areas, landscaping
and other improvements located thereon are being maintained in a manner
consistent with the Community-Wide Standard.
ARTICLE
V
Use Restrictions
The District Property shall be used only for such purposes
as are permitted in the Development Order and other applicable Development
Approvals, subject to such further restrictions as may be set forth in this
District Declaration, any Supplemental Declaration or Annexation Agreement, and
the Community Declaration or other covenants or deed restrictions pertaining
thereto. No changes in the uses and intensities of uses permitted in the
Development Order (and other applicable Development Approvals) pertaining to the
District Property may be made, nor may any application therefore be made to any
governmental authority, without the prior written approval of the District
Declarant, as long as District Declarant owns any land within the District
Property or which may be annexed thereto.
The District Property shall also be subject to such further restrictions as
District Declarant may impose under and by virtue of deeds to Owners.
Restrictions identified in any such deed as being enforceable by the District
Association shall be enforceable by the District Association, acting through the
Board of Directors, in the same manner as if such restrictions were set forth in
this District Declaration. In addition, the Community Association, acting
through its board of directors, shall have standing and power to enforce
restrictions and standards imposed under the District Declaration and to enforce
deed restrictions on the District Property which may be enforced by the District
Association.
The District Association, acting through its Board of Directors, shall have the
authority to make, enforce, amend and delete standards and restrictions
governing use of the District Property in addition to those contained herein,
and to impose reasonable user fees for use of the Common Areas, provided
however, should such standards and restrictions be in conflict with or less
stringent than those contained in the Community Declaration, then the terms and
conditions of the Community Declaration shall control. Sanctions may include
reasonable monetary fines which may be secured by a lien upon an Owner’s Unit
or Unplatted Parcel in the same manner as delinquent Assessments, all as more
particularly set forth in the Bylaws. During such time as District Declarant
owns any land which is subject to the District Declaration, any standards and
restrictions governing the use of the District Property made, amended or
deleted, shall not apply to the District Declarant and that portion of the
District Property owned by it unless District Declarant consents thereto.
The Board of Directors may delegate its power and authority to enforce
restrictions pursuant to this Article V to a Covenants Committee as provided in
the Bylaws.
Section 1. Water and Sewage Facilities. No
individual water supply system or individual sewage disposal system shall be
permitted for any portion of the District Property, unless so approved by the
ARC.
Section 2. Landscaping. Landscaping
on any portion of the District Property and storm water drainage and retention
features located on and serving only a Unit or Unplatted Parcel
•(and not a part of the Master Drainage System or District Drainage System)
shall be continuously maintained in good, aesthetically pleasing condition by
the Owner thereof consistent with the Landscape Design Criteria for the District
as may be promulgated and amended by the ARC from time to time. Declarant hereby
specifically provides that the Landscape Design Criteria may be amended by the
ARC from time to time, in whole or in part, by the ARC without necessity of
recording same in the public records, and that such amendment shall be effective
from and on the date of posting on the District Property.
Section 3. Vehicles and Repair. No
inoperative cars, motorcycles, trucks or other types of vehicles shall be
allowed to remain either on or adjacent to any portion of the District Property
for a continuous period in excess of forty-eight (48) hours; provided, however,
this provision shall not apply to any such vehicle being kept in an enclosed
garage and not visible from the street or any portion of the District Property
or Properties.
Section 4. Storage. Unless
specially approved by the ARC, no materials, supplies or equipment (except
during the construction of improvements) shall be stored on any portion of the
District Property, except inside a residence and the garage. No storage
buildings or sheds are permitted on any Unit or Unplatted Parcel. The foregoing
provisions shall not apply to the Community Declarant or the District Declarant.
Section 5. Wells. Without
the prior written consent of the ARC, no well for the production of water,
whether potable or for irrigation or other limited purposes, shall be dug, used
or otherwise permitted on the District Property.
Section 6. Signs. With
the exception of one “For Sale” sign per Unit or Unplatted Parcel not to
exceed the size established by the ARC, no sign of any kind shall be erected on
any portion of the District Property without the prior written consent of the
ARC. Such restriction on signage shall not apply to the District Declarant as
long as the District Declarant owns property within the District Property. –
Section 7. Parking and Garages. Owners
and their guests or invitees shall park only in their garages or in the
driveways serving their Units or Unplatted Parcels or permitted spaces or
designated areas on Common Area as may be directed by the District Association,
in which parking may or may not be assigned, subject to such reasonable rules
and regulations as the Board of Directors may adopt. Owners and their guests or
invitees shall not park in the streets, or on yards, medians or Common Areas
(unless the District Association designates such Common Area for parking) or
over sidewalks. All commercial vehicles, recreational vehicles, buses, trucks,
pick-up trucks (other than unmodified stock pick-up trucks and so-called sport
utility vehicles intended for personal or family use, provided no commercial
signage, lettering or logo is displayed on the exterior of the vehicles or is
otherwise visible from the exterior of the vehicles), vans (other than mini-vans
and full- sized vans intended for personal or family use, provided no commercial
signage, lettering or logo is displayed on the exterior of the vehicles or is
otherwise visible from the exterior of the vehicles), tractors, mobile homes,
trailers (either with or without wheels), camper, camper trailers, boats and
other watercraft, and boat trailers must be parked entirely within a garage
unless otherwise permitted by the District Association. Storage of any of the
foregoing in the yard of a Unit or Unplatted Parcel shall not be permitted
unless otherwise permitted by the District Association. Each Unit shall have a
two car garage or if permitted by the ARC and the District Association, a
similar space for permanent parking of two cars. No garage may be altered in
such a manner that the number of automobiles which may reasonably be parked
therein after the alteration is less than the number of automobiles that could
have reasonably been parked in the garage as originally constructed. Garage
doors shall be closed except when reasonably necessary for use of garage. (This
section shall not apply to construction or similar vehicles or construction
trailers which may be parked on an Unplatted Parcel or a Unit, but only during
such reasonable period of time within which construction of improvements thereon
is occurring.)
Section 8. Animals and Pets. No
animals, livestock, or poultry of any kind may be raised, bred, kept, or
permitted on any portion of the District Property, with the exception of dogs,
cats, or other usual and common household pets, which may be kept or permitted
in a reasonable number so as not to create a nuisance as determined by the
District Association, provided same are not bred for commercial use; and
provided, however, those pets which are permitted shall be sheltered inside
structures. All dogs, cats and other household pets allowed hereunder must be
leashed when outside and shall not be permitted to run loose. No pet or animal
shall be “tied out” in a yard or otherwise left unattended in a yard. Every
person walking a pet shall clean up all matter created by the pet. Each Owner
shall be responsible for the activities of such Owner’s pets. A determination
by the District Association that a pet is a nuisance shall be conclusive and
binding on all parties. When notice of removal of any pet is given by the
District Association, the pet shall be removed permanently from the District
within forty—eight (48) hours of the giving of the notice.
Section 9. Nuisance. No
portion of the District Property shall be used, in whole or in part, for the
storage of any property or thing that will cause such portion of the District
Property to appear to be in an unclean, unsightly, unhealthy or unkempt
condition or that will be obnoxious to the eye; nor shall any substance, thing,
or material be kept upon, nor shall any use or practice be allowed upon any
portion of the District Property that will emit foul or obnoxious odors or that
will cause any noise or other condition that will or might disturb the peace,
quiet, safety, comfort, or serenity of the occupants of the District Property or
the Properties, or which shall be a source of material and unreasonable
annoyance or discomfort to Owners or their tenants or invitees, or which
materially and unreasonably interferes with the peaceful possession and
enjoyment of the District Property. No illegal, noxious, or offensive activity
shall be carried on or conducted upon any portion of the District Property. The
pursuit of hobbies or other activities, including specifically, without limiting
the generality of the foregoing, the assembly and disassembly of motor vehicles
and other mechanical devices which might tend to cause disorderly, unsightly, or
unkempt conditions, shall occur only within a garage or other similar walled
interior area of the District Property and shall not be visible to view.
Notwithstanding the foregoing, construction activity which occurs on the
District Property in accordance with the terms of the District Declaration and
the Community Declaration shall be permitted. No firearms may be discharged
within the District Property.
Section 10. Antennas; Satellite Dishes. No
exterior television or radio antennas, aerials or satellite dishes of any kind
shall be placed, allowed, or maintained upon any portion of the District
Property, including any Unit or Unplatted Parcel unless it is installed in
accordance with the policy statement approved and issued by the ARC as the same
may be amended from time-to-time. The ARC may require, among other things, that
all such improvements be screened so that they are not visible from adjacent
Units, or from adjacent streets or Common Area. No Owner shall operate any
equipment or device which will interfere with the radio or television reception
of others.
Section 11. Clotheslines, Garbage Cans, Tanks and
External Equipment. All
clotheslines, garbage cans, above-ground tanks, air-conditioning compressors,
pool pumps and other similar items of external equipment shall be located or
screened, by vegetation or shadow-box enclosures approved by the ARC, so as to
be concealed from view from neighboring Units, Unplatted Parcels or portions of
the District Property or Properties.
Section 12. Swimming Pools. No
above ground swimming pools shall be erected, constructed or installed on any
portion of the District Property.
Section 13. Tents, Trailers and Temporary
Structures. Owners
or occupants shall not place upon any portion of the District Property, any tent
or trailer or any structure of a temporary nature, without obtaining the prior
written approval from the District Association and the ARC.
Section 14. Drainage. All
storm water from any portion of the District Property shall only drain into or
onto contiguous or adjacent street rights-of-way, drainage easements, retention
areas, Common Areas or Areas of Common Responsibility in the manner approved by
the ARC and the owner and operator of the Master Drainage System or the District
Drainage System, as the case may be, if such drainage is part of the Master
Drainage System or the District Drainage System, respectively. If such drainage is
not to be a part of the Master Drainage System or the District Drainage
System, then the manner of its drainage shall be approved by the ARC. No Owner
(other than the District Declarant) shall be permitted to alter the grade of or
original drainage plan for any portion of the District Property, or change the
direction of, obstruct, alter or retard the flow of surface water drainage, nor
to erect, place or maintain any structure which shall in any way obstruct
drainage devices or facilities or impede their efficient operation unless
approved by the ARC and the owner and operator of the Master Drainage System or
the District Drainage System, as the case may be, if such drainage is part of
the Master Drainage System or the District Drainage System, respectively.
Section 15. Lakes, Ponds, Retention and Other Water
Areas; Hedging and Landscaping. Units and Unplatted Parcels shall not have riparian rights
to lakes, ponds1 retention and other water areas unless so specifically provided
herein or in the deed to the Owner of such Unit or Unplatted Parcel. Access to
and use of lakes, ponds, retention and other water areas within the District
Property shall be governed and controlled by the owner and operator of the
Master Drainage System or the District Drainage System, respectively. This shall
not be deemed to imply that any of the District Property or the Owners thereof
will have access to or rights to use lakes, ponds, retention or other water
areas within the District Property. Docks and other structures or improvements
within lakes, ponds, retention and other water areas within the District
Property shall not be permitted unless approved by the ARC, and the owner and
operator of the Master Drainage System or the District Drainage System,
respectively. Except as may otherwise be specifically approved in advance in
writing by the ARC, no Owner shall place or erect any statue, artwork,
sculpture, figure, yard ornament or decoration of any type or material on any
portion of the District Property which borders any lake, pond, retention or
other water area. Landscaping and hedging on portions of the District Property
which border any lakes, ponds, retention and other water areas, shall not be
constructed, planted or installed, if permitted at all, in such a manner so a to
materially obstruct the view of arty of the foregoing as determined by the ARC.
On those portions of Units and Unplatted Parcels bordering lakes, ponds,
retention and other water areas, Owners may plant and install landscape hedging
along side property lines to a point no closer to the rear property line than
twenty (20) feet, provided, that the hedge is no more than three (3) feet in
height and no more than two (2) feet in width, that it otherwise complies with
the provisions of this Declaration and the Landscape Design Criteria, and that,
in all events, it is approved in advance in writing by the ARC.
The owner and
operator of the Master Drainage System or the District Drainage System, as the
case may be, may establish rules and regulations relevant to access and use of
lakes, ponds, retention and other water areas within the District Property,
which may include, without limitation, regulation or prohibition of sailing,
boating or other watercraft (except that the use or operation of jet skis or
other watercraft containing gas, diesel or other form of combustion engines are
hereby expressly prohibited), swimming, fishing, or other water sports or
activities and use of lake slopes. The District Declarant shall also have the
right, but not the obligation, to specifically designate the portions, if any,
of the lakes, ponds, retention or other water areas and the corresponding
shoreline or beach areas upon which boats or other vehicles may be stored,
docked or launched, or within which swimming may be permitted. To the extent the
rules and regulations of the District Declarant allow access to or use of lakes,
ponds, retention or other water areas, such use shall be at the risk of the
Person undertaking such activity, and there shall be no obligation by the
District Declarant to provide supervisory personnel or lifeguards. At such time
as District Declarant no longer owns any property which is subject to this
District Declaration or which can be annexed to the District Property, or at
such earlier time as District Declarant in its sole discretion may determine,
the rights reserved to District Declarant in this section shall become rights of
the District Association, to be exercised by its Board of Directors. BY
ACCEPTANCE OF A DEED TO A HOME OR PARCEL, EACH OWNER ACOWLEDGES THAT THE WATER
LEVELS OF
Section 16. Walls, Fences and Mailboxes. No
fences or walls are permitted anywhere in the District Property unless approved
in advance in writing by the ARC and constructed in strict accordance with fence
guidelines approved and issued by the ARC. Any fence permitted in the District
Property may not exceed the maximum height of six (6) feet, and must be
constructed of a shadow box design unless otherwise approved by the ARC. No mail
box of any kind shall be erected on any portion of the District Property unless
approved in advance in writing by the ARC, and unless constructed according to a
standard design as determined by the ARC. District Declarant reserves the right
to require cluster or central mailbox systems in the District Property.
Section 17. No Alteration without ARC Approval. No
alteration of the Unit or Unplatted Parcel is permitted, nor are aluminum
porches, additions or appendages to or repainting of the improvements originally
approved by the ARC for the Unit or Unplatted Parcel allowed, without the prior
written approval of the ARC; provided, however, Owners may repaint their
residences in the same color and manner as originally approved by the ARC
without necessity of obtaining a second written approval.
Section 18. Motorized Vehicles. Motorized
vehicles shall not be used on the sidewalks, pathways or Common Areas (unless
the Common Areas have been specifically designated for use by motorized vehicles
by District Declarant). Golf carts may use the foregoing if so determined by
District Declarant, but only to the extent as determined by District Declarant,
the intent being that such use, if any, shall be limited to reasonable and
necessary use for transportation to and from any neighboring golf course. In no
event shall any person operate a motorized vehicle or golf cart anywhere within
the District Property who does not have a valid driver’s license. At such time
as District Declarant no longer owns any property which is subject to this
District Declaration or which can be annexed to the District Property, or at
such earlier time as District Declarant in its sole discretion may determine,
the rights reserved to District Declarant in this section shall become rights of
the District Association, to be exercised by its Board of Directors.
Section 19. Cable Television System. Each
Unit or Unplatted Parcel shall be wired for cable television service in
accordance with the Planning and Design Criteria.
Section 20. Community-Wide Standard. The
District Property shall comply with the Community-Wide Standard, the terms and
conditions of the Community Declaration, and the Planning and Design Criteria.
Section 21. Deve1oment Order. Each
Owner shall comply, at its expense, with the requirements of the Development
Order as it relates to the Unit or Unplatted Parcel owned by it and each Owner
shall otherwise cooperate with the Community Declarant, District Declarant,
Community Association and District Association in their efforts to comply with
the provisions of the Development Order.
Section 22. Occupants Bound. All
provisions of the District Declaration and of any rules and regulations or use
restrictions promulgated pursuant thereto which govern the conduct of Owners,
shall also apply to all occupants of any portion of the District Property.
Section 23. Subdivision of Portion of the District
Property. As long
as District Declarant owns any land which is subject to this Declaration or
which under the terms of this District Declaration could be annexed to the
District Property, no portion of the District Property shall be platted,
replatted, subdivided or its boundary lines changed, nor shall any portion of a
Unit or Unplatted Parcel, less than the whole thereof, be sold, conveyed or
transferred except with the prior written approval of the District Declarant,
which approval may be granted or withheld in the sole discretion of District
Declarant. Thereafter, no portion of the District Property shall be platted,
replatted, subdivided or its boundary lines changed, nor shall any portion of a
Unit or Unplatted Parcel, less than the whole thereof, be sold, conveyed or
transferred except with the prior written approval of the District Association.
Any such subdivision, boundary line change, platting or replatting shall not be
in violation of the applicable subdivision and zoning regulations, the
Development Order or the Development Approvals. District Declarant, however,
hereby expressly reserves the right to plat, replat, subdivide or change the
boundary lines of any portion of the District Property owned by the District
Declarant and the right to sell, convey or transfer any portion of a Unit or
Unplatted Parcel less than the whole thereof, without notice to or the approval
or consent of any Person being required.
Section 24. Garage Sales. No
garage or yard sales of any kind shall be conducted, nor shall any signage
related to any garage or yard sales be erected, in any manner except as
specifically provided by rules and regulations promulgated by the District
Declarant or the ARC, which rules and regulations shall address the location,
frequency, scope, hours, placement of signs and all other matters relating to
garage or yard sales and signage or advertising thereof.
Section 25. Artificial Vegetation. No
artificial grass, plants or other artificial vegetation, or rocks or other
landscape devices, shall be placed or maintained on the exterior portion of any
Unit, unless approved by the ARC.
Section 26. Casualty Destruction to Improvements. In
the event that a Unit is damaged or destroyed by casualty loss or other loss,
then within a reasonable period of time after such incident, the Owner thereof
shall either commence to rebuild or repair the damaged improvements and
diligently continue such rebuilding or repairing until completion, or properly
clear the damaged improvements and rebuild the same as approved by the ARC. As
to any such reconstruction of damaged or destroyed improvements, the same shall
only be replaced as approved by the ARC.
Section 27. Decorations. No
decorative objects including, but not limited to, birdbaths, light fixtures,
sculptures, statues, weather vanes, or flagpoles shall be installed or placed
within or upon any portion of the District Property without the prior written
approval of the ARC.
Section 28. Hurricane Shutters. Any
hurricane shutters, security shutters or other protective devices visible from
outside a Unit shall be of a type as approved by the ARC. Panel, accordion and
roll-up style hurricane shutters and security shutters may only’ be installed
on a Unit and utilized strictly in accordance with requirements set forth in the
applicable policy statement approved and issued by the ARC, as the same may be
amended from time to time. –
Section 29. Substances. No
inflammable, combustible or explosive fuel, fluid, chemical, hazardous waste, or
substance shall be kept on any portion of the District Property or within any
Unit, except those which are required for normal household use.
Section 30. Visibility on Corners. Notwithstanding
anything to the contrary in these restrictions, no obstruction to visibility at
street intersections shall be permitted and such visibility clearances shall be
maintained as required by the ARC and governmental agencies. No vehicles,
objects, fences, walls, hedges, shrubs or other planting shall be placed or
permitted on a corner
Section 31. Wetlands Areas. The
District Property may contain or be adjacent to preserves, wetlands and/or
mitigation areas. No Owner or other person shall take any action or enter onto
such areas so as to adversely affect the same. Such areas are to be maintained
by the Community Development District in their natural state.
Section 32. Window Treatments. Window
treatments shall consist of drapery, blinds, decorative panels, or other
tasteful window covering, and no newspaper, aluminum foil, sheets or other
temporary window treatments are permitted, except for periods not exceeding one
(1) week after an Owner or tenant first moves into a Unit or when permanent
window treatments are being cleaned or repaired. No awnings, canopies or
shutters shall be affixed to the exterior of a Unit without the prior written
approval of the ARC. No reflective tinting or mirror finishes on windows shall
be permitted unless approved by the ARC.
Section 33. Landscaping in Common Area. No
trees, hedges, landscaping or yard ornament or decoration of any type or
material whatsoever may be planted or installed on any portion of the Common
Area by any Owner or other occupant of the District Property.
Section 34. Disputes as to Use. If
there is any dispute as to whether the use of any portion of the District
Property complies with this District Declaration, such dispute shall, prior to
the expiration of the-4iass “B” Control Period, be decided by District
Declarant, and thereafter by the District Association. A determination rendered
by such party with respect to such dispute shall be final and binding on all
persons concerned.
Section 35. Enforcement. In
the event of the violation of or the failure to comply with the requirements of
this Article, and the failure of the owner of the affected portion of the
District Property within fourteen (14) days following written notice by the
District Association of such violation or non-compliance and the nature thereof,
to cure or remedy such violation, then the District Association or its duly
appointed employees, agents or contractors, shall have the right; but not the
obligation, and an easement and license to enter upon the affected portion of
the District Property, without being guilty of any trespass therefore, for the
purpose of curing or eliminating such violation, all at the sole expense of the
owner thereof. Such costs and expenses, together with an overhead expense to the
District Association of fifteen percent (15%) of the total amount thereof shall
be payable by the owner of the affected portion of the District Property to the
District Association within ten (10) days after written notice to the owner of
the amount thereof, which amount shall become or be treated in the same manner
as a Special Assessment levied against said portion of the District Property.
The District Association may place a lien upon such portion of the District
Property to recover such costs and expenses, as provided in Article VII hereof,
and the District Association may seek all other legal and equitable remedies
available to it. The District Association shall also have the right to levy
fines against an Owner for the violation of or the failure to comply with the
requirements of this Article, or exercise any other remedy available at law, as
more particularly set forth in the Bylaws. Any rights of the District
Association hereunder may also be exercised by the Community Association as
further provided in this District Declaration.
ARTICLE
VI
Annexation of Additional Property
Section 1. Annexation. As
the owner thereof, or if not the owner, with the consent of the owner thereof,
District Declarant shall have the unilateral right, privilege, and option, from
time to time at any time, subject to the approval of the Department of Housing
and Urban Development and the Veterans Administration, to annex to the District
Property any additional property (1) which is either abutting-i.e. District
Property (including additions thereto), which shall include properties which
would abut the District Property but for the existence of a road right-of-way,
easement or other similar property grant separating it from the District
Property, or (ii) which is so situated that its addition will be consistent with
a uniform scheme of development as determined in the sole discretion of District
Declarant. This right of annexation by District Declarant shall exist until
District Declarant no longer owns any property within the District Property or
within the additional property described above which may be the subject of
annexation to the District Property. Such annexation shall be accomplished by
filing in the public records of Brevard County, Florida an Annexation Agreement
annexing such property so as to become part of the District Property and Exhibit
“A”, thereby submitting same to the terms of the District Declaration, which
Annexation Agreement shall include the written consent of the Community
Declarant thereto. Any such annexation shall be effective upon the filing for
record of such Annexation Agreement unless otherwise provided therein. District
Declarant or Community Declarant shall have the unilateral right to transfer to
any other Person the said right, privilege, and option to annex additional
property described herein reserved to District Declarant, provided that such
transferee or assignee shall be the owner of at least a portion of the District
Property or the additional property which may be the subject of annexation to
the District Property, and that such transfer is memorialized in a written,
recorded instrument executed by District Declarant. Nothing herein shall
obligate District Declarant to annex additional real property into the District
Property, nor to continue with annexation, if and when it may be commenced.
Section 2. Residential District. The
District Property and any additional property annexed as provided herein
(thereby becoming part of the District Property), shall be a part of the Auburn
Lakes Residential District. The Auburn Lakes Residential District may also
include other property (i) submitted to the terms and conditions of the District
Declaration by an Annexation Agreement, or (ii) submitted to the terms and
conditions of other declarations of covenants, conditions, easements,
reservations and restrictions and not the District Declaration, provided
however, the Community Declarant by written consent to such declaration
designates such property as part of the Auburn Lakes Residential District, and
the governing association for such declaration shall be the District
Association. The District Association shall be responsible for carrying out its
rights and obligations as provided in any declarations pertaining to the Auburn
Lakes Residential District and may not decline to accept such rights and
responsibilities as to any property contained within the Auburn Lakes
Residential District. The Units within the Auburn Lakes Residential District
shall be used for single family residential purposes unless otherwise
specifically provided in this District Declaration, any Supplemental Declaration
or other declaration Of covenants, conditions, easements, reservations and
restrictions pertaining to property within the Auburn Lakes Residential
District.
Section 3. Amendment. This
Article shall not be amended without the written consent of District Declarant,
and as to provisions pertaining to it, Community Declarant.
ARTICLE
VII
Assessments
Section 1. Creation of Assessments. There
are hereby created Regular Assessments for Common Expenses as may from time to
time specifically be authorized by the District Association to be commenced at
the time and in the manner set forth in Section 5 of this Article. Except as may
otherwise be provided in Article VI, Section 3, Assessments shall be levied on
all Units or Unplatted Parcels according to the following formula:
(a) Assignment of Points.
(i) One (1) point per are or portion thereof shall be
assigned to an Unplatted Parcel.
(ii) For those portions of the District which are subject
to a Plat or are otherwise designated by District Declarant as a Unit, each Unit
shall be allocated one (1) point.
(b) Computation of Assessments. The percentage of
the total Assessment to be levied on a particular Unit or Unplatted Parcel shall
be computed by dividing the total points assigned to that Unit or Unplatted
Parcel subject to the Assessment by the total points for all Units and Unplatted
Parcels in the District Property subject to the Assessment. The percentage of
the total Assessment for each Unit or Unplatted Parcel subject to Assessment
shall be computed annually by the District Association. The Assessment for a
Unit or Unplatted Parcel shall be arrived at by multiplying the total budget
amount or total Assessment adopted by the Board of Directors (as it may be
amended from time to time) by the applicable percentage of the total Assessment
computed for such Unit or Unplatted Parcel. Upon annexation of additional
property into the District Property, Assessments shall be recomputed under the
above formula.
Special Assessments shall be levied as provided in Section 3 of this Article
VII. Each Owner, by acceptance of a deed or recorded contract of sale to any
portion of the District Property, is deemed to covenant and agree to pay these
Assessments. All Assessments, together with interest at a rate not to exceed the
highest rate allowed by Florida law as computed from the date the delinquency
first occurs, penalties, late charges, processing or other fees, costs, expenses
and reasonable attorneys’ and paralegals’ fees, shall be a charge on the
land and shall be a continuing lien upon the Unit or Unplatted Parcel against
which each Assessment is made.
All Assessments, together with interest, penalties, late charges, processing or
other fees, costs, expenses and reasonable attorneys’, and paralegals’,
fees, shall also be the personal obligation of the Person who was the Owner of
such Unit or Unplatted Parcel at the time the Assessment arose, and his grantee
shall be jointly and severally liable for such portion thereof as may be due and
payable at the time of conveyance, except no first Mortgagee who obtains title
to a Unit or Unplatted Parcel pursuant to foreclosure of a first Mortgage, or
pursuant to a deed in lieu of foreclosure of a first Mortgage, shall be liable
for unpaid Assessments which accrued prior to such acquisition of title.
The District Association shall, upon demand at any time, furnish to any Owner
liable for any type of Assessment a certificate in writing setting forth whether
such Assessment has been paid as to any particular Unit or Unplatted Parcel.
Such certificate shall be conclusive evidence of payment to the District
Association of such Assessment therein stated to have been paid. The District
Association may require the advance payment of a reasonable processing fee for
the issuance of such certificate.
Assessments shall be paid in such manner and on such dates as may be fixed by
the Board of Directors, which may include, without limitation, acceleration of
the entire Assessment in the event of delinquent payments, including without
limitation in the case of the Regular Assessment, acceleration of payment of the
Regular Assessment for the entire fiscal year, and acceleration of payment of
the full amount of any Special Assessment. The Board of Directors may in its
sole discretion grant an option for the Regular Assessment to be paid in
installments rather than annually in advance, subject to an add4ional processing
fee and interest being due if such option is elected. Unless the Board of
Directors otherwise provides, the Regular Assessment shall be paid annually.
No Owner may waive or otherwise exempt himself from liability for the
Assessments provided for herein by non-use of the Common Area or abandonment of
the Unit or Unplatted Parcel against which the Assessments are made. The
obligation to pay Assessments is a separate and independent covenant on the part
of each Owner. No diminution or abatement of an Assessment or set- off against
an Assessment shall be claimed or allowed by reason of any alleged failure of
the District Association to take some action or perform some function required
to be taken or performed by the District Association under this District
Declaration, or for inconvenience or discomfort arising from the making of
repairs or improvements which are the responsibility of the District
Association, or from any action taken to comply with any law, ordinance, order
or directive of any municipal or other governmental authority.
So long as the District Declarant has an option unilaterally to subject
additional property to this District Declaration in accordance with Article VI
hereof, District Declarant may elect, in lieu of paying Assessments on its
unsold Units or Unplatted Parcels, to pay the difference between the amount of
Assessments levied on all Units and Unplatted Parcels subject to Assessment
(except District Declarant s unsold Units or Unplatted Parcels) and the amount
of actual expenditures required during the fiscal year by the District
Association. However, District Declarant may exclude from such amount the
portion of any reserves which would otherwise be attributable to Units or
Unplatted Parcels owned by the District Declarant. This obligation may be
satisfied in the form of a cash subsidy or by “in kind” contributions of
services or materials, or a combination of these. Such services or materials may
be furnished by any party designated by District Declarant and the value of such
services shall be established by District Declarant or by a written statement of
the service or material provider.
The District Association is specifically authorized to enter into subsidy
contracts or contracts for “in-kind” contribution of services or materials
or a combination of services and materials with District Declarant or other
entities for the payment of some portion of the Common Expenses.
Section 2. Adoption of Budget. It
shall be the duty of the Board of Directors to prepare and adopt a budget for
the District Association covering the estimated Common Expenses during the
coming fiscal year. The budget may include a capital contribution establishing a
reserve fund taking into account the number and nature of replaceable assets
(including, without limitation, any pool facility and related structures which
may be developed), the expected life of each asset, and the expected repair or
replacement cost of each asset. The Board of Directors shall set the capital
contribution, if any, in an amount sufficient to permit the District Association
to meet the projected capital needs, as shown on the capital budget, with
respect to amount and timing, by Regular Assessments over the period of the
budget. The Board of Directors shall publish in accordance with the provisions
of the Bylaws notice of the adoption of the budget and the amount of the Regular
Assessment to be levied against each Unit or Unplatted Parcel for the following
fiscal year, calculated as provided in Section 1 of this Article. Such budget
and Regular Assessment shall become effective upon adoption of the budget by the
Board of Directors.
Notwithstanding the foregoing, however, in the event the Board of Directors
fails for any reason so to adopt the budget for any year, then and until such
time as the budget shall have been adopted by the Board of Directors, the budget
in effect for the immediately preceding year shall, with an increase of ten
percent (10%) or such lower amount as is determined by the Board of Directors,
continue for the current year.
In the event that the Board of Directors shall determine during any fiscal year
that the Regular Assessment established for such fiscal year is or will become
inadequate or insufficient to meet all Common Expenses and reserve amounts, if
any, for such fiscal year for whatever reason, the Board of Directors shall be
entitled to immediately determine the approximate amount of the deficiency or
inadequacy of the Regular Assessment for such fiscal year, adopt an amendment to
the budget to cover such deficiency, and levy supplemental or revised Regular
Assessments for such fiscal year, calculated as provided in Section 1 of this
Article. Such amendment to the budget and such supplemental or revised Regular
Assessments shall become effective upon adoption by the Board of Directors. The
Board of Directors shall furnish notice of such amendment to the budget and such
supplemental or revised Regular Assessments in the same manner provided in the
first paragraph of this Section.
Section 3. Special Assessments. In
addition to the Regular Assessments authorized in Section 1 of this Article, the
District Association may levy and collect a Special Assessment or Special
Assessments from time to time for any purpose directly related to the discharge
of the District Association’s duties and obligations pursuant to this District
Declaration. The obligation to pay Special Assessments shall be computed on the
same basis as for Regular Assessments, with the total number of points limited
to the number of points assigned to those Units or Unplatted Parcels to which
the Special Assessment applies. Special Assessments shall be payable in such
manner and at such times as determined by the Board of Directors, and may be
payable in installments extending beyond the fiscal year in which the Special
Assessment is approved, if the Board of Directors so determines. If the District
Declarant is subsidizing the Regular Assessments as provided in Section 1 of
this Article at the time of such Special Assessment, the District Declarant may
determine in its discretion whether it desires to subsidize the Special
Assessment in the same manner as provided in Section 1, or pay same based on the
Units and Unplatted Parcels it owns.
After the District Association has mailed written notice to an Owner of a Unit
or Unplatted Parcel at such Owner’s last known address, specifying the
noncompliance of such Unit or Unplatted Parcel with the terms and conditions of
the District Declaration, the District Association may levy and collect a
Special Assessment against any Owner individually and against such Owner s Unit
or Unplatted Parcel to reimburse the District Association for costs and expenses
incurred in bringing an Owner and his Unit or Unplatted Parcel into compliance
with the provisions of this District Declaration (including without limitation
an overhead expense of fifteen percent (15%) of the total costs and expenses
payable to the District Association)
Section 4. Lien for Assessments. The
District Association shall, at any time following the expiration of ten (10)
days after the due date of an Assessment, be entitled to cause a claim of lien
for such delinquent Assessments to be filed among the Public Records of Brevard
County, Florida. Any such claim of lien shall, among other things, state and
identify the Unit or Unplatted Parcel against which the lien is claimed, the
name of the Owner of the Unit or Unplatted Parcel as provided in the books and
records of the District Association, and the amount of the lien at the time of
filing and such additional items as may be secured by the lien. Such lien may be
executed by any officer of the District Association or by the management agent
or attorney for the District Association. A copy of the claim of lien shall be
furnished to the Owner against whose property the lien is filed. The payment of
all Assessments established, made, levied and imposed by the District
Association pursuant to this District Declaration, as well as any Assessments
which may become due on or after the recordation of such lien together with
interest, penalties, processing or other fees, late charges, costs, expenses,
and reasonable attorneys, and paralegals, fees associated with the collection
thereof (whether suit be brought or not) , shall be secured by the lien, Upon recording of a notice or
claim of lien on any Unit or Unplatted Parcel, there shall exist a perfected
lien for unpaid Assessments prior and superior to all other liens, except (a)
all taxes, bonds, Assessments, and other levies which by law would be superior
thereto; (b) the 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; and (c) the lien for Community Association Assessments as
provided in the Community Declaration. Such lien may be enforced by suit,
judgment or foreclosure in the same manner mortgage liens are foreclosed.
The District Association shall have the power to bid for the Unit or Unplatted
Parcel at foreclosure sale and to acquire and hold, lease, mortgage and convey
the same. During the period in which a Unit or Unplatted Parcel is owned by the
District Association following foreclosure: (a) no Assessment shall be assessed
or levied on it; and (b) each other Unit or Unplatted Parcel shall be charged,
in addition to its usual Assessment, its pro rata share, based upon its
percentage of total Assessments in Section 1 of this Article, of the Assessment
that would have been charged such Unit or Unplatted Parcel had it not been
acquired by the District Association
as a result of foreclosure.
Suit to recover a money judgment for unpaid Assessments, interest, penalties,
processing or other fees, late charges, costs, expenses and reasonable attorneys
and paralegals, fees shall be maintainable without foreclosing or waiving the
lien securing the same. If there are multiple Owners of a Unit or Unplatted
Parcel, each Owner shall be jointly and severally liable for any Assessments
made against such Unit or Unplatted Parcel. The remedies herein provided for the
collection and enforcement of Assessments and the foreclosure of the lien
therefore shall be cumulative and not alternative and may be brought separately
or simultaneously as separate counts in the same action.
Section 5. Date of Commencement of Assessments. The
Assessments provided for herein shall commence as to each Unit or Unplatted
Parcel on the first day of the first month following (i) the date of conveyance
of the first Unit or Unplatted Parcel by District Declarant, or (ii) the
effective date of the first budget, whichever is later. The first Regular
Assessment shall be adjusted according to the number of days remaining in the
fiscal year at the time Regular Assessments commence as to the Unit or Unplatted
Parcel
Section 6. Subordination of the Lien to First
Mortgages. The
lien of Assessments, including-interest, penalties, processing or other, fees,
late charges, costs, expenses and reasonable attorneys and paralegals fees,
shall be subordinate to the lien of any first Mortgage upon any Unit or
Unplatted Parcel. The sale or transfer of any Unit or Unplatted Parcel shall not
affect the Assessment lien or the personal liability of the Owner of such Unit
or Unplatted Parcel for payment of the Assessment. However, the sale or transfer
of any Unit or Unplatted Parcel pursuant to judicial or no judicial foreclosure
of a first Mortgage shall extinguish the lien of such Assessments (but not the
personal liability of the prior Owner for said unpaid Assessments) as to
payments which became due prior to such sale or transfer. No foreclosure, sale
or transfer shall relieve such Unit or Unplatted Parcel from the personal
obligation or liability for the payment of any Assessments (including the right
to file a lien for nonpayment thereof) for any Assessments thereafter accruing
or becoming due. When a Mortgagee holding a first Mortgage of record or other
purchaser of a Unit or Unplatted Parcel obtains title pursuant to remedies under
the Mortgage, or by deed in lieu of foreclosure, such Mortgagee or purchaser,
its successors and assigns shall not be liable for the share of the Common
Expenses or Assessments of the District Association chargeable to such Unit or
Unplatted Parcel which became due prior to the acquisition of title to such Unit
or Unplatted Parcel by such acquirer. Such unpaid share of Common Expenses or
Assessments shall be deemed to be Common Expenses collectible from Owners of all
the Units or Unplatted Parcels, including such acquirer, its successors and
assigns.
Section 7. Exempt Property. Notwithstanding
anything herein to the contrary, the following property shall be exempt from the
payment of Assessments:
(a) All Common Area under this District Declaration or
under the Community Declaration;
(b) The Areas of Common Responsibility under this District
Declaration or under the Community Declaration not within a Unit or an Unplatted
Parcel;
(c) All property dedicated to and accepted by any
governmental authority or public utility, including, without limitation, public
schools, public streets and public parks, if any;
(d) All ideal property not within a Unit or an Unplatted
Parcel which is part of the Master Drainage System; and
(e) All tracts identified as such on any Plat.
Section 8. Billing of Assessments by the Community
Association. In
the event the Community Association bills the District Association for the
combined Assessments due the Community Association with respect to Units and
Unplatted Parcels within the District as provided in the Community Declaration,
the District Association shall so notify the Owners by mailing, publishing in a
newspaper of local circulation, or posting on the District Property, and such
notice shall set forth the amount due from each Owner and the due date for such
payment. Such Community Association Assessment shall be deemed an Assessment and
may be collected by the District Association in the same manner as Assessments.
ARTICLE
VIII
General Provisions
Section 1. Term. The covenants and restrictions of this District
Declaration shall run with and bind the District Property, and shall inure to
the benefit of and shall be enforceable by the District Declarant, community
Declarant, District Association, Community Association, or Owners, their
respective successors and assigns, for a term of forty (40) years from the date
this District Declaration is recorded in the Public Records of Brevard County,
Florida, after which time they shall be automatically extended for successive
periods of ten (10) years, unless an instrument in writing, signed by two-thirds
of the then Owners, has been recorded within the year preceding the beginning of
each successive period of ten (10) years, agreeing to change said covenants and
restrictions, in whole or in part, or to terminate the same, in which case this
District Declaration shall be modified or terminated as specified therein.
Section 2. Easements for Utilities and Other
Services. There is
hereby reserved unto District Declarant, so long as District Declarant owns any
property which is subject to this District Declaration or which under the terms
of this District Declaration could be annexed to the District Property, and its
designees for each of the following (which may include, without limitation,
Brevard County, Florida, any other governmental entity or any utility service
provider), blanket non-exclusive easements upon, across, over, and under all of
the Common Area, all Tracts identified as such on any Plat, and, to the extent
shown on the Plat, over other portions of the District Property, for ingress,
egress, installing, replacing, repairing and maintaining cable television
systems, master television antenna systems, fiber optic lines, security and
similar systems, roads, walkways, bicycle pathways, lakes, ponds, wetlands,
drainage systems, street lights, signage, and all utilities, including, but not
limited to, water, sewer, surface water management systems, including the Master
Drainage System, meter boxes, telephones, gas, and electricity; provided, the
exercise of this easement shall not unreasonably interfere with the use of any
Unit or Unplatted Parcel and, except in an emergency, entry into any Unit or
Unplatted Parcel shall be made only after reasonable notice to the Owner or
occupant thereof. Such reservation shall be subject to any specific approval
right of the Community Declarant that may be required by the Community
Declaration.
Section 3. Future Easements. There
is hereby reserved to District Declarant, together with the right to grant and
transfer the same, the right, power and privilege to, at any time hereafter,
grant to itself, the District Association, Brevard County or any other parties
such other further and additional easements as may be reasonably necessary or
desirable, in the sole opinion and within the sole discretion of District
Declarant, for the future orderly development of the Auburn Lakes Residential
District in accordance with the objects and purposes set forth in this District
Declaration. It is expressly provided, however, that no such further or
additional easement shall be granted or created over and upon any Unit or
Unplatted Parcel pursuant to the provisions of this Section if any such easement
shall unreasonably interfere with the presently contemplated or future use and
development of that particular Unit or Unplatted Parcel. The easements
contemplated by this Section may include, without limitation, such easements as
may be required for utility, drainage, road right-of-way, signage and other
purposes reasonably related to the orderly development of the Auburn Lakes
Residential District in accordance with the objects and purposes specified in
this District Declaration. Such further or additional easements may be hereafter
created, granted or reserved by District Declarant without the necessity for the
consent or joinder of the Owner of the particular portion of the District
Property over which such further or additional easement is granted or required,
provided however, such creation, grant or reservation shall be subject to any
approval of the Community Declarant that may be required by the Community
Declaration.
Section 4. Enforcement. Every
Owner and every occupant of a Unit or Unplatted Parcel, and every guest or
invitee of any such person, shall comply strictly with the covenants,
conditions, and restrictions set forth in the District Declaration and
associated documents, and in the deed to the Unit or Unplatted Parcel, if any.
The District Association, Community Association, Community Declarant, District
Declarant, or an Owner shall have the right individually, collectively or in any
combination to enforce the covenants, conditions, restrictions and other
provisions of this District Declaration or seek such other relief as may be
available as a result of a breach of such covenants, conditions, restrictions
and other provisions of the District Declaration, by any proceeding at law or in
equity. Failure to enforce any such provision shall in no event be deemed a
waiver of the right to do so thereafter. The right to enforce the District
Declaration shall include, without limitation, an action to recover sums due for
damages or an action for injunctive relief, or both, maintainable by the
District Association, Community Association, Community Declarant, District
Declarant, or an Owner. In addition, the District Association or the Community
Association may impose per diem penalties for failure to comply with this
District Declaration and associated documents after notice of such noncompliance
and the elapsing of a stated time period within which to cure such noncompliance
as further provided in the Bylaws, with each day during which such noncompliance
continues being considered a separate violation of the terms hereof. Such
penalties shall be due and payable upon imposition and shall be secured,
collected and otherwise treated in the same manner as Assessments. The Community
Association or Community Declarant shall have the right, but not the obligation,
to take all actions that the District Association or District Declarant might
otherwise take under the provisions of this District Declaration, including the
right to enforce the terms of the District Declaration. Costs, expenses and
reasonable attorneys and paralegals, fees, whether suit be brought or not,
including those resulting at all trial and appellate levels, incurred by the
prevailing party in any action to enforce any provision of this District
Declaration or to seek such other relief as may be available as a result of a
breach of such covenants, conditions, restrictions and other provisions of the
District Declaration, the Articles of Incorporation, Bylaws, and rules and
regulations of the District Association, and any similar associated documents
there under, or deed restrictions on the District Property, including without
limitation actions to recover sums due for damages or actions for injunctive
relief, shall be the personal obligation of the non-prevailing party.
Section 5. Indemnification. The
District Association shall indemnify every officer, director, committee member
and employee of the District Association against any and all costs and expenses,
including reasonable attorneys, and paralegals, fees, reasonably incurred by or
imposed upon such officer, director, committee member or employee in connection
with any action, suit, or other proceeding, or appeal there from, (including
settlement of any suit or proceeding, if approved by the then Board of
Directors) to which he may be a party by reason of being or having been an
officer, director, committee member or employee of the District Association.
Such officers, directors, committee members and employees shall not be liable
for any mistake of judgment, negligent or otherwise, except for their own
individual willful misfeasance, malfeasance, misconduct, or bad faith. The
officers and directors of the District Association shall have no personal
liability with respect to any contract or other commitment made by them, in good
faith, on behalf of the District Association (except to the extent they may also
be members of the District Association), and the District Association shall
indemnify and forever hold each such officer and director free and harmless
against any and all liability to others on account of any such contract or
commitment. Any right to indemnification provided for herein shall not be
exclusive of any other rights to which any such officer, director, committee
member, or employee, or former officer, director, committee member or employee
may be entitled. The District Association shall, as a Common Expense, maintain
adequate general liability and officers, and directors, liability insurance to
fund this obligation, if such insurance is reasonably available.
Section 6. Litigation. During
the Class B Control Period, no judicial or administrative proceeding shall be
commenced or prosecuted by the District Association unless approved by a
majority of the Board of Directors. Thereafter, no judicial or administrative
proceeding shall be commenced or prosecuted by the District Association unless
approved by a vote of seventy-five percent (75%) of the Board of Directors. This
Section shall not apply, however, to (a) actions brought by the District
Association to enforce the provisions of this District Declaration or associated
documents, or such other relief as may be available as a result of a breach of
such covenants, conditions, restrictions and other provisions of the District
Declaration or associated documents, or under any deed restrictions imposed on
Units or Uplatted Parcels or other portions of the District Property, which
shall include, without limitation, actions to recover sums due for damages or
actions for injunctive relief (including, without limitation, the foreclosure of
liens) (b) the imposition and collection of Assessments as provided in Article
VII hereof or in the Community Declaration, Cc) proceedings involving challenges
to ad valorem taxation, or (d) counterclaims brought by the District Association
in proceedings instituted against it. (This Section shall not apply to the
undertaking of any defense of the District Association in proceedings instituted
against it.) This Section shall riot be amended unless such amendment is made by
the District Declarant or after the Class B Control Period, is approved by the
percentage votes and pursuant to the same procedures necessary to institute
proceedings as provided above.
Section 7. Cumulative Effect Conflict. The
covenants, restrictions, and provisions of this District Declaration shall be
cumulative with those of (i) the Community Declaration and associated documents
there under, and (ii) any deed restrictions; and the District Association may,
but shall not be required to, enforce those documents described in (i) and (ii);
provided, however, in the event of conflict between or among such covenants and
restrictions, and provisions of any articles of incorporation, bylaws, rules and
regulations, policies, or practices adopted or carried out pursuant thereto,
those of the District Declaration and the District Association or any deed
restrictions shall be subject and subordinate to those of the Community
Declaration and the Community Association. The foregoing priorities shall apply,
but not be limited to, the liens for Assessments created in favor of the
Community Association.
Section 8. Severability. Invalidation
of any one of the covenants or restrictions contained in the District
Declaration by judgment or court order shall in no way affect the validity of
any other provisions contained in the District Declaration, which shall remain
in full force and effect.
Section 9. Easements of Encroachment. There
shall be reciprocal appurtenant easements of encroachment for so long as such
encroachment shall exist die to the unintentional placement of improvements as a
result of minor inaccuracies in surveying, construction or reconstruction, or
settling or shifting of the improvements constructed, reconstructed, or altered
thereon (in accordance with the terms of the Community Declaration and the
District Declaration)
Section 10. Development and Construction by District
Declarant. Nothing
set forth in this District Declaration shall be deemed, either expressly or
impliedly, to limit the right of District Declarant to change, alter or amend
its development plan or plans for the District Property or the Development Order
or Development Approvals, subject to the terms and conditions of the Community
Declaration, or to construct such improvements as the District Declarant deems
advisable prior to the completion of the development of all of the District
Property. District Declarant reserves the right to alter its development and
construction plans and designs as it deems appropriate from time to time.
Nothing in this District Declaration shall be construed to require District
Declarant, its successors in interest or assigns to develop any of the District
Property, or to develop it in any manner whatsoever.
Section 11. Construction Activity by District
Declarant. Notwithstanding
anything to the contrary set forth herein, Owners of Units and Unplatted Parcels
(and owners of any other portion of the District Property acknowledge that
District Declarant may undertake certain construction or related activities for
the purpose of marketing, sale, development and improvement of the District
Property or portions thereof. As a result, certain portions of the District
Property may experience disturbance or inconvenience from time to time from such
activities, however no Owner (or owner of any other portion of the District
Property) shall be entitled to seek relief against the District Declarant for
any reason related thereto.
Section 12. Community Association Empowered to
Enforce District Declaration. The Community Association is hereby authorized and
empowered, but shall not be obligated so to act, to enforce the covenants,
conditions and restrictions of the District Declaration or deed restrictions
pertaining to the District Property, and shall have a reasonable right of entry
for purposes thereof, provided however, the Community Association shall so
notify the owner of such portion of the District Property in noncompliance, at
its last known address, of such noncompliance. The Community Association shall
also have the right to exercise any other rights granted to the District
Association under the terms and conditions of this District Declaration, the
Bylaws and the Articles of Incorporation. Any costs, expenses, reasonable
attorneys’ and paralegals’ fees (as well as a fifteen percent (15%)
administrative overhead factor) incurred by the Community Association as
provided hereunder shall be deemed a Special Assessment under Section 3 of
Article VIII of the Community Declaration against such portion of the District
Property in noncompliance, and shall be subject to collection and such other
terms as provided therein and in Article VIII of the Community Declaration.
Section 13. Wildlife, Wetland Programs and Other
Components of Development Order. The Community Declarant,
District Declarant, Community Association or District
Association, may in the future implement wildlife or wetland
programs or other components of the Development Order, and this
District Declaration may be amended by District Declarant, without the joinder
or consent of any Person being required, for the purpose of defining and
implementing such programs, and if deemed appropriate by District Declarant, for
the purpose of defining certain responsibilities and obligations of the
Community Association, District, District Association, District Property or
portions thereof, and Owners in regard thereto. BY
ACCEPTANCE OF A DEED, EACH OWNER ACIGOWLEDGES THE CONSERVATION AREAS
MAY CONTAIN WILDLIFE, SUCH AS ALLIGATORS, RACOONS, SNAKES, DUCKS, DEER,
Section 14. ARC Approval. As
provided in Article V of the Community Declaration, Units and Unplatted Parcels
are subject to certain restrictions and must obtain certain approvals in respect
to improvements, alterations or other modifications to be made thereto. Owners
of Units or Unplatted Parcels shall be responsible for complying in all respects
with the Community Declaration, including without limitation the architectural
review process provided for in Article V of the Community Declaration.
ARTICLE
IX
Declarant s Rights
Section 1. Assignment of Rights. Any
or all of the obligations of District Declarant may be transferred to other
Persons including, without limitation, the District Association, provided that
the transfer shall not reduce an obligation nor enlarge a right beyond that
contained herein; provided further, no such transfer shall be effective unless
it is in a written instrument signed by District Declarant and duly recorded in
the public records of Brevard County, Florida.
Section 2. Development Activities. Notwithstanding
any provisions contained in the District Declaration or related documents to the
contrary, it shall be expressly permissible for District Declarant, its sales
agents, sales representatives, contractors and other designees to maintain and
carry on upon portions of the Common Area, Units, Unplatted Parcels, or other
portions of the District Property owned by District Declarant, such facilities
and activities as, in the sole opinion of District Declarant, may be reasonably
required, convenient or incidental to the construction or sale of Units or
Unplatted Parcels, including, but not limited to, business offices, signs, model
units, and sales offices, and sitting of construction trailers, construction
equipment and materials thereon, and District Declarant, its sales agents, sales
representatives, contractors and other designees shall have an easement for
access to and use for such purposes and of such facilities.
Section 3. Approval of Additional Covenants and
Plats of the District Property. So long as District Declarant continues to have rights
under this Article, no Person shall record any plat, declaration of covenants,
conditions and restrictions, or declaration of condominium or similar
instrument, affecting any portion of the District Property owned by such Person
without District Declarant’s review and write consent thereto, and any
attempted recordation without compliance herewith shall result in such plat,
declaration of covenants, conditions and restrictions, or declaration of
condominium or similar instrument, being void and of no force and effect unless
subsequently-approved by recorded consent signed by District Declarant.
Section 4. Amendment. This
Article may not be amended without the express written consent of District
Declarant; provided, however, the rights contained in this Article shall
terminate upon the earlier of (a) twenty—five. (25) years from the date this
District Declaration is recorded in the public records of
ARTICLE
X
Amendment
During the Class B Control Period, the District Declarant
reserves the right to amend this District Declaration unilaterally at any time,
without prior notice and without the consent of any Person, for any purpose
including, without limitation, withdrawal of certain portions of the District
Property then owned by District Declarant or its affiliates from the provisions
of this Declaration or a change in the uses permitted for the District Property
under this District Declaration, by recordation of an amendment in the public
records of Brevard County, Florida. Any such
amendment by the District Declarant shall be consistent with the general
development plan for the District Property set forth in this District
Declaration, and with the Development Order of the Properties issued by
If an Owner consents to the amendment of this District Declaration, it will be
conclusively presumed that such Owner has the authority so to consent and no
contrary provision in any Mortgage or contract between the Owner and a third
party will affect the validity of such amendment.
No amendment shall remove, revoke or modify any right or privilege of District
Declarant, Community Declarant, Community Association or District Association
without the written consent of such party or the assignee of such party’s
right or privilege. No amendment may impair the validity or priority of the lien
of any Mortgage held by any Mortgagee or impair the rights granted to Mortgagees
herein without the prior written consent of such Mortgagees.
By acceptance of a deed of conveyance to a Unit or Unplatted Parcel or other
portion of the District Property, each Owner thereof thereby gives its full,
irrevocable and unqualified consent on behalf of itself, its mortgagees, and its
successors in-title to the amendment of this District Declaration in the manner
provided in this Article.