Backup Documents 07/08/2014 Item #16A 4 ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP
TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO 6 A 4
THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATU
Print on pink paper. Attach to original document. The completed routing slip and original documents are to be forwarded to the County Attorney Office
at the time the item is placed on the agenda. All completed routing slips and original documents must be received in the County Attorney Office no later
than Monday preceding the Board meeting.
Complete routing lines#1 through#2 as appropriate for additional signatures,dates,and/or information needed. If the document is already complete with the
exception of the Chairman's signature,draw a line through routing lines#I through#2,complete the checklist,and forward to the County Attomey Office.
Route to Addressee(s) (List in routing order) Office Initials Date
1.
2.
3. County Attorney Office County Attorney Office
kkl (7/t41
4. BCC Office Board of County
Commissioners <l
\A■4
5. Minutes and Records Clerk of Court's Office
` a∎ 8(11 04 12:24pm
PRIMARY CONTACT INFORMATION
Normally the primary contact is the person who created/prepared the Executive Summary. Primary contact information is needed in the event one of the
addressees above,may need to contact staff for additional or missing information.
Name of Primary Staff John Houldswo Phone Number x-5757
Contact/ Department
Agenda Date Item was July 8,2014 Agenda Item Number I6-A4
Approved by the BCC
Type of Document Plat—Mussorie Village at Fiddler's Creek Number of Original One
Attached Documents Attached
PO number or account
number if document is
to be recorded
INSTRUCTIONS & CHECKLIST
Initial the Yes column or mark"N/A" in the Not Applicable column,whichever is Yes N/A(Not
appropriate. (Initial) Applicable)
1. Does the document require the chairman's original signature? JH
2. Does the document need to be sent to another agency for additional signatures? If yes, JH
provide the Contact Information(Name;Agency; Address; Phone)on an attached sheet.
3. Original document has been signed/initialed for legal sufficiency. (All documents to be JH
signed by the Chairman,with the exception of most letters,must be reviewed and signed
by the Office of the County Attorney.
4. All handwritten strike-through and revisions have been initialed by the County Attorney's N/A
Office and all other parties except the BCC Chairman and the Clerk to the Board
5. The Chairman's signature line date has been entered as the date of BCC approval of the JH
document or the final negotiated contract date whichever is applicable.
. 6. "Sign here"tabs are placed on the appropriate pages indicating where the Chairman's
signature and initials are required.
7. In most cases(some contracts are an exception),the original document and this routing slip
should be provided to the County Attorney Office at the time the item is input into SIRE.
Some documents are time sensitive and require forwarding to Tallahassee within a certain
time frame or the BCC's actions are nullified. Be aware of your deadlines!
8. The document was approved by the BCC on July 8,2014 and all changes made f � •
during the meeting have been incorporated in the attached document. The County f
Attorney's Office has reviewed the changes,if applicable. t
9. Initials of attorney verifying that the attached document is the version approved by the
BCC,all changes directed by the BCC have been made,and the document is ready for the
Chairman's signature.
I: Forms/County Forms!BCC Forms/Original Documents Routing Slip WWS Original 9.03.04,Revised 1.26.05,Revised 2.24.05;Revised 11/30/12
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This instrument prepared by and after recording retum to:
Mark F. Grant, Esq.
Greenspoon Marder,P.A.
5150 Tamiami Trail North
Suite 502
Naples, FL 34103
(239)659-1103
DECLARATION OF VILLAGE COVENANTS, CONDITIONS,
RESTRICTIONS AND EASEMENTS
FOR
MUSSORIE VILLAGE AT FIDDLER'S CREEK®
Ear
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TABLE OF CONTENTS
PAGE
ARTICLE I CREATION OF THE VILLAGE 2
1.1. PURPOSE AND INTENT 7
1.2. BINDING EFFECT 2
1.3. VILLAGE DOCUMENTS 2
1.4. ENFORCEMENT 3
ARTICLE II CONCEPTS AND DEFINITIONS 4
2.1. DEFINED TERMS 4
2.2. INTERPRETATION OF CERTAIN REFERENCES 10
ARTICLE III USE AND CONDUCT 10
3.1. RESTRICTIONS ON USE,OCCUPANCY,AND ALIENATION 10
3.2. RULE MAKING AUTHORITY 14
3.3. OWNERS' ACKNOWLEDGMENT AND NOTICE TO PURCHASERS 17
ARTICLE IV ARCHITECTURE AND LANDSCAPING 17
4.1. GENERAL 17
4.2. ARCHITECTURAL REVIEW 18
4.3. GUIDELINES AND PROCEDURES 19
4.4. SECURITY DEPOSITS FOR IMPROVEMENTS;INDEMNIFICATION 22
4.5. NO WAIVER OF FUTURE APPROVALS 73
4.6. VARIANCES 73
4.7. LIMITATION OF LIABILITY 23
4.8. ENFORCEMENT 24
ARTICLE V MAINTENANCE AND REPAIR 24
5.1. MAINTENANCE OF LOTS 25
5.2. INSURANCE ON LOTS;CASUALTY LOSSES 27
ARTICLE VI THE VILLAGE ASSOCIATION AND ITS MEMBERS 28
6.1. FUNCTION OF VILLAGE ASSOCIATION 28
6.2. MEMBERSHIP 78
6.3. VOTING 79
6.4. RELATIONSHIP TO FIDDLER'S CREEK FOUNDATION, INC. '9
ARTICLE VII VILLAGE ASSOCIATION POWERS AND RESPONSIBILITIES 30
7.1. ACCEPTANCE AND CONTROL OF VILLAGE COMMON AREA 30
7.2 MAINTENANCE OF VILLAGE COMMON AREAS 30
7.3. INSURANCE FOR VILLAGE COMMON AREAS 31
7.4. ENFORCEMENT 13
7.5. IMPLIED RIGHTS; BOARD AUTHORITY 16
7.6. PROVISION OF SERVICES TO LOTS 37
7.7. RELATIONSHIPS WITH OTHER PROPERTIES 37
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7.8. RELATIONSHIP WITH GOVERNMENTAL AND TAX-EXEMPT ORGANIZATIONS 37
7.9. RESPONSIBILITIES UNDER GOVERNMENTAL PERMITS 37
7.10. WATERWAYS;WATER LEVEL AND USE 38
7.1 1. SURFACE WATER AND STORM WATER MANAGEMENT SYSTEM 39
ARTICLE VIII COVENANT TO PAY ASSESSMENTS; ESTABLISHMENT OF
LIENS; COLLECTION OF ASSESSMENTS; COLLECTION BY DECLARANT;
CERTAIN RIGHTS OF DECLARANT AND INSTITUTIONAL MORTGAGEES 40
8.1. AFFIRMATIVE COVENANT To PAY ASSESSMENTS 40
8.2. OPERATING EXPENSES. 40
8.3. ESTABLISHMENT OF LIENS 41
8.4. COLLECTION OF ASSESSMENTS 42
8.5. COLLECTION BY DECLARANT 42
8.6. RIGHTS OF DECLARANT AND INSTITUTIONAL MORTGAGEES TO PAY ASSESSMENTS AND
RECEIVE REIMBURSEMENT 43
ARTICLE IX METHOD OF DETERMINING ASSESSMENTS AND ALLOCATION
OF ASSESSMENTS 43
9.1. DETERMINING AMOUNT OF ASSESSMENTS 43
9.2. ASSESSMENT PAYMENTS 44
9.3. SPECIAL ASSESSMENTS 44
9.4. LIABILITY OF OWNERS OF INDIVIDUAL LOT ASSESSMENTS 44
9.5. BENEFITED ASSESSMENTS 45
9.6. BUDGETING FOR RESERVES 45
9.7. ASSESSMENTS PAYABLE BY DECLARANT;DECLARANT SUBSIDIES 46
9.8. WORKING FUND CONTRIBUTION 46
9.9. WAIVER OF USE 47
ARTICLE X REMOVAL OF PROPERTY 47
ARTICLE XI DEVELOPMENT PLAN 47
11.1. MUSSORIE VILLAGE AT FIDDLER'S CREEK® 47
11.2. VILLAGE COMMON AREA. 48
11.3. FIDDLER'S CREEK® 48
1 1.4. THE TARPON CLUB AND THE COUNTRY CLUBS AT FIDDLER'S CREEK® 49
11.5. FIDDLER'S CREEK®COMMUNITY DEVELOPMENT DISTRICT 2 49
1 1.6. TAXES AND ASSESSMENTS OF CDD 50
ARTICLE XII ADDITIONAL RIGHTS RESERVED TO DECLARANT 50
12.1. MARKETING AND SALES ACTIVITIES 50
12.2. RIGHT TO DEVELOP 52
12.3. RIGHT TO APPROVE CHANGES IN THE VILLAGE STANDARDS 53
12.4. RIGHT TO TRANSFER OR. ASSIGN DECLARANT RIGHTS 53
12.5. EASEMENT TO INSPECT AND RIGHT TO CORRECT 53
12.6. RIGHT TO NOTICE OF DESIGN OR CONSTRUCTION CLAIMS 54
12.7. TERMINATION OF RIGHTS 54
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ARTICLE XIII EASEMENTS 54
13.1. EASEMENTS IN VILLAGE COMMON AREA 54
13.2. EASEMENTS OF ENCROACHMENT 54
13.3. EASEMENTS FOR UTILITIES,ETC 55
13.4. EASEMENTS FOR MAINTENANCE, EMERGENCY,AND ENFORCEMENT 55
13.5. EASEMENTS FOR CROSS-DRAINAGE 56
13.6. RIGHTS TO STORM WATER RUNOFF, EFFLUENT, AND WATER RECLAMATION 56
13.7. EASEMENT FOR MAINTENANCE OF SURFACE WATER AND STORM WATER MANAGEMENT
SYSTEM 56
13.8. SIGN EASEMENT 57
13.9. EASEMENT FOR IRRIGATION EQUIPMENT 57
13.10. EASEMENT TO FOUNDATION 57
13.1 1. EASEMENT TO CDD 58
ARTICLE XIV DISPUTE RESOLUTION 58
14.1. IN GENERAL 58
14.2. DISPUTES BETWEEN VILLAGE ASSOCIATION AND OWNERS 58
14.3. DISPUTES BETWEEN VILLAGE ASSOCIATION/OWNER AND DECLARANT 58
14.4. DISPUTE RESOLUTION 58
ARTICLE XV MORTGAGEE PROVISIONS 62
15.1. NOTICES OF ACTION 63
15.2. SPECIAL FHLMC PROVISION 63
15.3. OTHER PROVISIONS FOR FIRST LIEN HOLDERS 64
15.4. AMENDMENTS TO DOCUMENTS 64
15.5. CONSTRUCTION OF ARTICLE XV 65
15.6. NO PRIORITY 65
15.7. NOTICE TO VILLAGE ASSOCIATION 66
15.8. FAILURE OF MORTGAGEE TO RESPOND 66
15.9. HUDNA APPROVAL 66
15.10. RIGHTS OF DECLARANT AND INSTITUTIONAL MORTGAGEES TO PAY ASSESSMENTS
AND RECEIVE REIMBURSEMENT 66
ARTICLE XVI DISCLOSURES AND WAIVERS 67
16.1. No LIABILITY FOR THIRD PARTY ACTS 67
16.2. VIEW IMPAIRMENT 67
16.3. CONSTRUCTION ACTIVITIES 67
16.4. LIABILITY FOR VILLAGE ASSOCIATION OPERATIONS 68
ARTICLE XVII CHANGES IN OWNERSHIP OF LOTS 68
ARTICLE XVIII AMENDMENT OF VILLAGE COVENANTS 68
18.1. BY DECLARANT 68
18.2. BY THE OWNERS 69
18.3. VALIDITY AND EFFECTIVE DATE 69
18.4. EXHIBITS 69
iv
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TABLE OF EXHIBITS
EXHIBIT SUBJECT MATTER
"A" Legal Description Mussorie Village at Fiddler's Creek®
"B" Site Plan of Mussorie Village at Fiddler's Creek is
"C" Initial Use Restrictions
"D" Articles of Incorporation of Mussorie Village at
Fiddler's Creek @ Association, Inc.
"E" Bylaws of Mussorie Village at Fiddler's Creek a
Association, Inc.
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DECLARATION OF VILLAGE COVENANTS, CONDITIONS,
RESTRICTIONS AND EASEMENTS
FOR
MUSSORIE VILLAGE AT FIDDLER'S CREEK®
THIS DECLARATION OF VILLAGE COVENANTS, CONDITIONS,
RESTRICTIONS AND EASEMENTS FOR MUSSORIE VILLAGE AT FIDDLER'S CREEK®
("Village Covenants") is made this 25th day of July, 2014, by Taylor Morrison of Florida, Inc., a
Florida corporation ("Declarant"), and is joined in by Mussorie Village at Fiddler's Creek®
Association, Inc. ("Village Association").
WHEREAS, Declarant is the owner in fee simple of the real property more particularly
described on Exhibit "A" attached hereto and made a part hereof(the "Property");
WHEREAS, Declarant desires to develop a planned residential community to be known
as "Mussorie Village at Fiddler's Creek®" (as hereinafter defined) upon the Property; and
WHEREAS, in order to develop and maintain Mussorie Village at Fiddler's Creek® as a
planned residential community and to preserve the values and amenities of such community, it is
necessary to declare, commit and subject the Property and the improvements now or hereafter
constructed thereon to certain land use covenants, restrictions, reservations, regulations, burdens,
liens, and easements; and to delegate and assign to the Village Association certain powers and
duties of ownership, administration, operation, maintenance and enforcement; and
WHEREAS, the Village Association is joining in these Village Covenants in order to
acknowledge its obligations hereunder; and
WHEREAS, the Property is part of a master planned community known as Fiddler's
Creek® and is subject to the Foundation Documents (as hereinafter defined).
NOW, THEREFORE, in consideration of the premises and covenants herein contained,
Declarant hereby declares that the Property shall be owned, held, used, transferred, sold,
conveyed, demised and occupied subject to the covenants, restrictions, easements, reservations,
regulations, burdens and liens hereinafter set forth, all of which shall run with the Property and
any part thereof, and which shall be binding upon all parties having any right, title or interest in
the Property or any part thereof, their heirs, successors and assigns.
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ARTICLE I
CREATION OF THE VILLAGE
1.1. Purpose and Intent.
Declarant (as defined in Article II), as the owner of the real property described in Exhibit
"A," intends, by recording of these Village Covenants of Covenants, Conditions, Restrictions
and Easements for Mussorie Village at Fiddler's Creek® (the "Village Covenants"), to establish
a general plan of development for Mussorie Village at Fiddler's Creek®, a planned residential
community. These Village Covenants, together with the other Village Documents described in
Section 1.3, provides for the overall development, administration, maintenance, and preservation
of Mussorie Village at Fiddler's Creek®. An integral part of the development plan is the
creation of Mussorie Village at Fiddler's Creek® Association, Inc. (the "Village Association") to
own, operate, and/or maintain various Village Common Areas and community improvements
and to administer and enforce these Village Covenants and the other Village Documents.
This document does not and is not intended to create a condominium under Florida law.
1.2. Binding Effect.
These Village Covenants govern the Property which is described in Exhibit "A," and any
other property submitted to these Village Covenants in the future pursuant to Article X, if any.
These Village Covenants shall run with the title to the Property and shall bind everyone having
any right, title, or interest in any portion of the Property, their heirs, successors, successors-in-
title, and assigns. Declarant, the Village Association, any aggrieved Owner (as defined in Article
II), and their respective legal representatives, heirs, successors, and assigns, may enforce these
Village Covenants. Each Owner shall automatically be a Member (as defined in Article II) of the
Village Association and the Foundation pursuant to the Foundation Declaration.
These Village Covenants are intended to have perpetual duration, but shall be effective
for a minimum of 30 years from the date it is recorded, subject to the right of Declarant and the
Members to amend it as provided in Article XIX. After the initial 30-year period, it shall
automatically be extended for successive 10-year periods in perpetuity unless, within the 12-
month period preceding any extension, an instrument signed by the then Owners of at least 75%
of the Lots (as defined in Article II) agreeing to terminate these Village Covenants are recorded.
If any provision of these Village Covenants would be invalid under the Florida Uniform
Statutory Rule Against Perpetuities, that provision shall expire 90 years after these Village
Covenants are recorded. This section does not authorize termination of any easement created in
these Village Covenants without the consent of the holder of such easement.
1.3. Village Documents.
The following chart identifies the documents which govern the Village (as they may be
amended from time to time, the "Village Documents") and describes, in part, the purpose of
each. Every Owner and occupant of a Lot in Mussorie Village at Fiddler's Creek®, and their
respective guests, tenants, visitors and invitees, shall comply with the Village Documents.
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Village Covenants • creates obligations which are binding upon the Village
(Recorded) Association and all present and future owners and
occupants of, and others with any interest in,property in
the Village
Supplemental Declaration ► withdraws property from the Village;and/or may impose
(when Recorded) additional obligations or restrictions on the property
Articles of Incorporation • establish the Village Association as a not-for-profit
(filed with the Secretary of State;initial Articles corporation under Florida law
attached as Exhibit"D")
Bylaws • govern the Village Association's internal affairs, such as
(Board adopts; initial Bylaws attached as voting rights,elections, meetings, officers, etc.
Exhibit"E")
Architectural Guidelines • establish architectural standards and guidelines for
(Declarant or Village Association may improvements and modifications within the Village,
adopt) including structures, landscaping, and other items
Use Restrictions • govern use of property and activities within the Village
(initial set attached as Exhibit"C")
Board Resolutions and Rules • establish rules, policies,and procedures for internal
(Board may adopt) governance and Village Association activities; regulate
operation and use of Village Common Area(as defined
in Article II)
Additional covenants, conditions, restrictions and easements may be imposed on all or
any portion of the Village, in which case the more restrictive provisions will be controlling.
However, no Person (as defined in Article II) shall record any additional covenants, conditions,
restrictions or easements which abridges, affects or modifies any of Declarant's rights and
privileges under these Village Covenants affecting any portion of the Village without Declarant's
written consent, during the Development and Sale Period (as defined in Article II),or without the
Board's consent thereafter. Any instrument recorded without the necessary consent is void and of
no force or effect.
If there are conflicts between Florida law, the Foundation Documents, these Village
Covenants, the Articles, and the Bylaws; Florida law, the Foundation Documents, these Village
Covenants, the Articles, and the Bylaws (in that order) shall prevail. If any court determines that
any provision of these Village Covenants are invalid, or invalid as applied in a particular
instance, such determination shall not affect the validity of other provisions or other applications
of the provision.
1.4. Enforcement.
The Village Association and Declarant shall have the right to enforce compliance of the
terms of these Village Covenants by each Owner, his or her family, lessees, invitees and guests.
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ARTICLE II
CONCEPTS AND DEFINITIONS
2.1. Defined Terms.
The terms used in the Village Documents are given their natural, commonly accepted
definitions unless otherwise specified. Capitalized terms are defined as follows:
"Affiliate": Any Person which (either directly or indirectly, through one or more
intermediaries) controls, is in common control with, or is controlled by, another Person, and any
Person that is a director, trustee, officer, employee, independent contractor, shareholder, agent,
co-venturer, subsidiary, personal representative, or attorney of any of the foregoing. For the
purposes of this definition, the term "control" means the direct or indirect power or authority to
direct or cause the direction of an entity's management or policies, whether through the
ownership of voting securities, by contract, or otherwise.
"Architectural Guidelines": The architectural, design, and construction guidelines and
review procedures adopted pursuant to Article IV as they may be amended from time to time.
"Architectural Review Board" or "ARB": The committee established, upon delegation or
termination of Declarant's authority under Article IV, to review plans and specifications for the
construction or modification of improvements and to administer and enforce the architectural
controls described in Article IV.
"Articles": The Articles of Incorporation of Mussorie Village at Fiddler's Creek®
Association, Inc., filed with the Secretary of State for the State of Florida, as they may be
amended from time to time. A copy of the initial Articles are attached to these Village Covenants
as Exhibit "D." The "Articles" are "Village Articles" as defined in the Foundation Declaration.
"Assessment": Assessments for which the Owners are obligated to pay to the Village
Association and includes "Individual Lot Assessments," "Benefited Assessments" and "Special
Assessments" (as such terms are defined herein) and any and all other assessments which are
levied by the Village Association in accordance with the Village Documents.
"Board of Directors" or "Board": The body responsible for the general governance and
administration of the Village Association, selected as provided in the Bylaws.
"Builder": Taylor Morrison of Florida, Inc., a Florida corporation, or its successors or
assigns, and any other entity(ies) Declarant may designate as a Builder. Declarant shall have the
right to assign, in whole or in part, any of its rights and/or responsibilities hereunder to a
Builder(s).
"Bylaws": The Bylaws of Mussorie Village at Fiddler's Creek® Association, Inc., as
they may be amended from time to time. A copy of the initial Bylaws is attached to these Village
Covenants as Exhibit "E." The "Bylaws" are "Village Bylaws" as defined in the Foundation
Declaration.
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"Class "B" Control Period": The time period during which the Class "B" Member may
appoint a majority of the Board members. The Class `B" Control Period shall end when any one
of the following occurs:
(a) when 90% of the combined total of all Lots proposed under the
Development Plan have been issued certificates of occupancy and are owned by Members other
than the Class "B" Member;
(b) when, in its discretion, the Class "B" Member so determines.
"Community Development District" or "CDD": Fiddler's Creek® Community
Development District 2, which has the power to impose taxes (including annual taxes) or
assessments, or both taxes and assessments, on the Property through a special taxing district.
These taxes and assessments pay the construction, operation, and maintenance costs of certain
public facilities of the CDD and are set annually by the governing board of the CDD. These
taxes and assessments are in addition to county and all other taxes and assessments provided for
by law.
"Completed Lot": A Lot on which the construction of a Home has been completed, for
which a certificate of occupancy or equivalent therefore has been issued by the appropriate
governmental agency, and the title to which has been conveyed by Declarant.
"Completed Lot Owner": The Owner of a Completed Lot.
"County": Collier County, Florida.
"Declarant": Taylor Morrison of Florida, Inc., a Florida corporation, or any successor or
assign as developer of all or any portion of the Village that is designated as Declarant in a
recorded instrument which the immediately preceding Declarant executes. On all matters,
Declarant may act through any of its Affiliates. Any Person who at any time holds the rights of
Declarant hereunder and subsequently transfers or assigns the rights of Declarant to another
Person shall be known as a "predecessor Declarant" and, unless otherwise agreed in writing,
shall be entitled to the rights of a predecessor Declarant established in these Village Covenants.
Whether or not specifically stated, a predecessor Declarant shall be afforded the same protection
with respect to matters arising during its tenure as Declarant as the predecessor Declarant would
have if it were still Declarant.
"Development Plan": The land use plan for the Village described in Article XI, as the
same may be amended from time to time by Declarant as depicted on the Site Plan for Mussorie
Village at Fiddler's Creek® attached hereto as Exhibit "B." In addition, Declarant reserves the
right to withdraw portions thereof. Reference should he made to Article XI of these Village
Covenants for the respective rights and obligations of Owners and Declarant with respect to the
use and development of the Village.
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"Development and Sale Period": The period of time during which Declarant and/or its
Affiliates and/or any Builder and/or its Affiliates are using the Village for the sale and marketing
of Homes in the Village and/or in any other communities developed or to be developed by
Declarant or any of its affiliates, including, but not limited to, the holding of sales and marketing
meetings, the use of"model row(s)" if one or more, the use of design centers, the use of service
and construction trailers, and engaging in sales promotions and related sales and marketing
activities for the general public.
"Fiddler's Creek®": The name given to the planned community being developed by
Foundation Declarant in the County in accordance with the Foundation Declaration.
"Foundation": Fiddler's Creek® Foundation, Inc., a Florida corporation not for profit,
organized to administer the Foundation Declaration and having among its members all Owners
of fee simple title to a "Unit" which is subject to assessment by the Foundation (as such terms
are defined in the Foundation Declaration), including the Owners in Mussorie Village at
Fiddler's Creek®. The Owners are also "Class A Members" (as defined in the Foundation
Declaration) of the Foundation and the Owners are subject to assessment by the Foundation.
"Foundation Declarant": FCC Marsh, LLC (f/k/a 951 Land Holdings, Ltd.), a Florida
limited liability company; FCC Aviamar, LLC (f/k/a GBFC Development, Ltd.), a Florida
limited liability company; FCC Preserve, LLC, a Florida limited liability company; FCC
Veneta, Ltd. (f/k/a GBP Development, Ltd.), a Florida limited partnership; FCC Veneta, LLC,
(f/k/a GB Peninsula, Ltd.) a Florida limited liability company; and GB 31, LLC, a Florida
limited liability company, and all of such entities' successors and assigns.
"Foundation Declaration": The Amended and Restated Declaration of General
Covenants, Conditions and Restrictions for Fiddler's Creek® recorded in Official Records Book
3685, Page 319, of the Public Records of the County, and all amendments and supplements
thereto, whereby portions of the real property at Fiddler's Creek® are set aside from time to time
by Foundation Declarant in accordance with the plan for development set forth therein and
whereby the "Assessments" (as defined therein) of the land areas designated therein as "Village
Common Areas" and "Recreational Property" are made specifically applicable to Owners to be
collected by the Foundation. The Foundation Declaration authorizes Annual Assessments
(including Membership Dues Assessment and the costs of promoting, preserving and
maintaining the Village Common Areas), Special Assessments, Capital Acquisition
Assessments, Telecommunications Services Assessment, Capital Reserve Assessments and
Resale Capital Acquisition Assessments (all as defined therein) to be levied against the Owners.
The Foundation may delegate the responsibility of collection of Assessments to the Association,
in which case, the Association will collect the Assessments and remit same to the Foundation.
"Foundation Documents": The Foundation Declaration, the Articles of Incorporation and
Bylaws of the Foundation, the design review standards and procedures, any rules and regulations
promulgated by the Foundation and all of the instruments and documents referred to therein and
executed in connection therewith, and any amendments to any of the documents thereto.
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"HOA Act": The homeowners' association act, Chapter 720, Florida Statutes, as
amended through the date of recording these Village Covenants amongst the Public Records of
the County.
"Home": A residential dwelling unit in Mussorie Village at Fiddler's Creek® intended
as an abode for one family. The term Home shall include the Lot as provided in Article II,
Section 2.1. A Home is a "Residential Unit" as defined in the Foundation Declaration.
"Improvement": Any Home, building, structure or improvement of any kind including,
but not limited to, any wall, fence, landscaping, planting, topographical feature, mailbox, play
set, basketball pole and backboard, swimming pool, tennis court, screen enclosure, driveway,
sidewalk, sewer, drain, water area, outside lighting or sign and addition, alteration or
modification thereto, which Improvement has previously received the approval of the
Foundation.
"Incomplete": The status of construction where a certificate of occupancy for a Home
constructed on a Lot has not been issued by the appropriate governmental agency but which Lot
has been cleared, filled and compacted and is ready to receive a Home thereon.
"Incomplete Lot": Any Lot which is not a Completed Lot.
"Incomplete Lot Owner": The Owner of an Incomplete Lot.
"Institutional Mortgage": A mortgage held by an Institutional Mortgagee on any property
within Mussorie Village at Fiddler's Creek®.
"Institutional Mortgagee": Any lending institution owning a first mortgage encumbering
any Home or Lot within Mussorie Village at Fiddler's Creek®, which owner and holder of said
mortgage shall either be a bank, life insurance company, federal or state savings and loan
association, real estate or mortgage investment trust, building and loan association, mortgage
banking company licensed to do business in the State of Florida, or any subsidiary thereof,
licensed or qualified to make mortgage loans in the State of Florida or a national banking
association chartered under the laws of the United States of America or any "secondary mortgage
market institution," including the Federal National Mortgage Association ("FNMA"),
Government National Mortgage Association ("GNMA"), Federal Home Loan Mortgage
Corporation ("FHLMC") and such other secondary mortgage market institutions as the Board
shall hereafter approve in writing; any and all lenders, and the successors and assigns of such
lenders, which have loaned money to Declarant and which hold a mortgage on any portion of the
Property securing any such loan; any pension or profit-sharing funds qualified under the Internal
Revenue Code; the Veterans Administration, the Federal Housing Administration or the
Department of Housing and Urban Development or such other lender as is generally recognized
in the community as an institutional lender; or Declarant, its successors and assigns.
"Lakes": Those portions of Fiddler's Creek® designated as Lakes, Lake tracts or storm
water management tracts. The Lakes are owned and maintained by the CDD.
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"Lake Lot": A Lot which abuts one of the Lakes as shown on the Site Plan.
"Legal Costs": The costs which a Person entitled to reimbursement for "Legal Costs"
under any provision of the Village Documents incurs in pursuing legal action (regardless of
whether suit is filed) to enforce the Village Documents, including, but not limited to, reasonable
attorneys' and paralegals' fees, expert witness fees, and court costs at all tribunal levels incurred
in connection with: (i) negotiation and preparation for mediation, arbitration or litigation,
whether or not an action is actually begun, and (ii) collection of past due Assessments including,
but not limited to, preparation of notices and liens.
"Lot": A portion of the Village, whether improved or unimproved, which may be
independently owned and conveyed, and which is improved, or intended to be improved, with a
Home. The term shall refer to the land, if any, which is part of the Lot as well as any
improvements on the Lot. The boundaries of each Lot are shown on the Plat. Each Home that
may be sold independently shall be a separate Lot. Upon completion of construction of the
Home on a Lot, such Lot and the improvements thereon shall collectively be considered to be a
Home for purposes of these Village Covenants and the other Village Documents.
"Member": A Person subject to membership in the Village Association, as described in
Section 6.2.
"Mortgage": A mortgage, a deed of trust, a deed to secure debt, or any other form of
security instrument affecting title to any Lot. The term "Mortgagee" shall refer to a beneficiary
or holder of a Mortgage.
"Operating Expenses": shall mean the expenses for which Owners are liable to the
Village Association as described in these Village Covenants and any other Village Documents
and include, but are not limited to: (a) the costs and expenses incurred by the Village Association
in owning, administering, operating, maintaining or repairing (but not reconstructing, replacing
or improving) the Village Common Area or any portion thereof and Improvements thereon, and
(b) all costs and expenses incurred by the Village Association in carrying out its powers and
duties hereunder or under any other Village Documents.
"Owner": The record title holder to any Lot, but excluding, in all cases, anyone holding
an interest merely as security for the performance of an obligation (e.g., a Mortgagee). Owner
as used herein shall also mean an "Owner" as defined in the Foundation Declaration.
"Person": An individual, a corporation, a partnership, a trustee, or any other legal entity.
"Plat": The plat of Mussorie Village at Fiddler's Creek®, recorded in Plat Book
Pages through , of the Public Records of Collier County, Florida, and any
replats thereof or any portions thereof.
"Property": The real property subjected to these Village Covenants; provided, however,
Declarant reserves the right to withdraw from the provisions hereof such portion or portions of
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the Property (which is owned by Declarant) as Declarant from time to time elects, upon the
execution by Declarant of a Supplemental Declaration.
"Rules and Regulations": shall mean the rules and regulations pertaining to the Village as
established by the Village Association, as same may be amended and/or abolished from time to
time.
"Supplemental Declaration": A recorded instrument which withdraws property from
these Village Covenants and/or imposes additional and/or modified restrictions and obligations
on the land described in such instrument.
"Surface Water and Storm Water Management System": A Surface Water and Storm
Water Management System consisting of swales, inlets, culverts, retention ponds, detention
ponds, Lakes, outfalls, storm drains and the like, and all connecting pipes and easements, which
is designed and constructed or implemented to control discharges which are necessitated by
rainfall events, incorporating methods to collect, convey, store, absorb, inhibit, treat, use or reuse
water to prevent or reduce flooding, over-drainage, environmental degradation, and water
pollution or otherwise affect quantity and quality of discharges from the system, as permitted
pursuant to the "SFWMD Rules" (as hereinafter defined). The Surface Water and Storm Water
Management System facilities include, but are not limited to: all inlets, ditches, swales, culverts,
water control structures, retention and detention ponds, Lakes, floodplain compensation areas,
wetlands and any associated buffer areas and wetland mitigation areas, to the extent that any
such facilities, areas, or conditions apply to the Village. The CDD shall own and be responsible
for the maintenance, repair and replacement of the Surface Water and Storm Water Management
System contained within the Property.
"SFWMD": shall mean and refer to the South Florida Water Management District, a
regional water management district established in accordance with Florida law, and any
successor, governmental agency, body or special district charged with the rights and
responsibilities of the SFWMD.
"Turnover": The date Class "B" membership shall cease and be converted to Class "A"
membership, upon which Declarant transfers majority control of the Board as provided in the
Articles.
"Use Restrictions": The initial use restrictions, rules, and regulations governing the use
of and activities on the Lots and Village Common Areas are set forth in Exhibit "C," as they may
be changed in accordance with Article III or otherwise amended from time to time.
"Village" or "Mussorie Village at Fiddler's Creek®": The real property described in
Exhibit "A."
"Village Association": Mussorie Village at Fiddler's Creek® Association, Inc., a Florida
not-for-profit corporation, its successors or assigns.
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"Village Common Area": All real and personal property, including easements, which the
Village Association owns, holds, leases, or otherwise has a right to possess or use for the
common use and enjoyment of the Owners. The Village Common Area consists only of the
Landscape Buffer Easements ("L.B.E.") and Sign Easements ("S.E.") as shown on the Plat.
"Village-Wide Standard": The standard of conduct, maintenance, or other activity
generally prevailing throughout the Village, or the minimum standards established pursuant to
the Architectural Guidelines, Use Restrictions, and Board resolutions, whichever is the highest
standard. Declarant initially shall establish such standard. The Village-Wide Standard may
contain objective elements, such as specific maintenance requirements, and subjective elements,
such as matters subject to the Board's or the ARB's discretion. The Village-Wide Standard may
or may not be set out in writing. The Village-Wide Standard may evolve as development
progresses and as the Village matures.
2.2. Interpretation of Certain References.
(a) Recording. All references in the Village Documents to a "recorded" legal
instrument, or to recordation or the recording of a legal instrument, shall refer to an instrument
filed, or the filing of a legal instrument, in the public records of the County, or such other place
designated as the official location for filing documents affecting title to real estate in the County
in order to make them a matter of public record.
(b) Consent or Approval. All references in the Village Documents to
"consent" or "approval" shall refer to permission or approval which, unless otherwise expressly
qualified in the specific provision, may be granted or withheld in the discretion of the Person
whose consent or approval is required.
(c) Discretion and Determinations. All references in the Village Documents to
"discretion" or to the right to "determine" any matter shall refer to the sole and absolute power or
right to decide or act and, unless otherwise expressly limited in the Village Documents, a Person
entitled to exercise its discretion or make a determination may do so without regard to the
reasonableness of, and without the necessity of justifying, the decision, determination, action or
inaction.
ARTICLE III
USE AND CONDUCT
3.1. Restrictions on Use, Occupancy, and Alienation.
In addition to the initial Use Restrictions set forth in Exhibit ""C" which may be modified
as provided below, the Lots shall be subject to the following restrictions set forth in this Section
and may be amended only in accordance with Article XIX.
(a) Residential and Related Uses. Lots shall be used primarily for residential
and related purposes. No business shall be conducted in, on, or from any Lot, except that an
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occupant residing in the Home on a Lot may conduct business activities ancillary to their
primary residential use, if the business activity, as determined in the Board's discretion:
(i) is not apparent or detectable by sight, sound, or smell from outside
of a permitted structure;
(ii) complies with applicable zoning and other legal requirements and
other requirements of these Village Covenants and the Foundation Documents;
(iii) does not involve regular visitation of the Lot by clients, customers,
suppliers, or other business invitees, or door-to-door solicitation within the Village; and
(iv) is consistent with the residential character of the Village and does
not constitute a nuisance, or a hazardous or offensive use, or threaten the use and enjoyment of
other Lots by the Owner thereof or the security or safety of others within the Village.
"Business" shall have its ordinary, generally accepted meaning and shall include, without
limitation, any occupation, work, or activity undertaken on an ongoing basis which involves
providing goods or services to Persons other than the family of the producer and for which the
producer receives a fee, compensation, or other form of consideration, regardless of whether (a)
such activity is engaged in full or part time, (b) such activity is intended to or does generate a
profit, or(c) a license is required.
No Lot shall be rezoned to any classification allowing commercial, institutional, or other
non-residential use without the express written consent of the Village Association, Declarant and
the Foundation, which either may withhold in their discretion. Notwithstanding anything in this
Article to the contrary, Declarant, the Village Association and the Foundation may enforce this
covenant by obtaining an injunction against any unapproved rezoning at the expense of the party
pursuing the unapproved rezoning, in addition to and not in limitation of Declarant's, the Village
Association's or the Foundation's other rights and remedies.
This Section shall not apply to restrict Declarant's, or Declarant's Affiliates' or Builder's
or Builder's Affiliates' activities, nor shall it restrict the activities of Persons Declarant approves
with respect to the development, construction, and sale of property in the Village. This Section
shall not apply to Village Association activities related to the provision of services or to
operating and maintaining the Village Common Area.
Leasing of a single Lot by the Owner thereof for residential occupancy shall not be
considered a "business" within the meaning of this subsection; however, no Owner or group of
Owners who are Affiliates shall, on their own behalf or through any agent, engage in leasing
activity with respect to multiple Lots at the same time.
(b) Leasing. For purposes of these Village Covenants, "leasing" is the regular,
exclusive occupancy of a Home by any Person other than the Owner, for which the Owner
receives any consideration or benefit, including, without limitation, a fee, service, or gratuity.
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The Home may be leased only in its entirety (e.g., separate rooms within the same Home may
not be separately leased).
No portion of a Home (other than an entire Home) may be rented. All leases must
be in writing and shall have a term of no less than thirty (30) days. No Owner may lease his or
her Home more than three (3) times in any calendar year, even if a tenant defaults on a lease or
abandons the Home before expiration of the lease term. No lease shall provide for an early lease
termination which would reduce a lease term to a period of less than said thirty (30) days, except
in the event of a default by the tenant. Any lease terminated as a result of a default or otherwise,
shall nevertheless still count towards the foregoing rental limitations. The restrictions on lease
terms set forth in this paragraph shall not apply to Homes owned or leased by Declarant, its
Affiliates, or Persons Declarant approves, in connection with their development, construction, or
sale of property in the Village.
An entire copy of the lease shall be provided to the Village Association and the
Foundation and shall include an acknowledgment by the tenant that the tenant and all occupants
of the leased Home are bound by and obligated to comply with the Village Documents and the
Foundation Documents and that the tenant has received a copy of the Village Documents and the
Foundation Documents. The Village Association may require that the lease contain an addendum
approved by the Village Association. The Owner shall be responsible for providing a copy of
the Village Documents and the Foundation Documents to the tenant prior to execution of the
lease and shall monitor enforcement and compliance with the Village Documents and the
Foundation Documents by the tenant.
In the event that an Owner is delinquent in the payment of his or her Assessments
or other sums due and owing to the Village Association, the Home shall not be leased until such
amounts are paid in full or unless the Village Association consents, in writing, to any such lease.
If the Home is leased in violation of this provision, the Village Association may terminate the
lease and evict the tenants in addition to imposing all other available remedies. In the event an
Owner is in default in the payment of Assessments or other sums due and owing to the Village
Association and the Owner's Home is leased, the Village Association shall have the right and
authority to collect the rent to be paid by the tenant to the Owner directly from the tenant. In the
event such tenant fails to remit said rent directly to the Village Association within ten (10) days
(but no later than the day the next rental payment is due) from the day the Village Association
notified such tenant in writing that the rents must be remitted directly to the Village Association,
the Village Association shall have the right to terminate the lease and evict the tenant. All sums
received from the tenant shall be applied to the Owner's account for the leased Home according
to the priority established in Section 720.3085, Florida Statutes, until the Owner's account is
current. All leases entered into by an Owner shall be deemed to automatically incorporate this
provision and all the Owners hereby appoint the Village Association its agent for such purpose.
The Village Association may, without further approval of the Owner of the leased Home,
terminate the lease for violations of these Village Covenants by the tenants, or the tenant's
family or guests and thereafter evict the tenants from the Home.
In addition to any notice to a tenant of a Home permitted to be given by law, an
Owner by acceptance of a deed to a Lot, does hereby irrevocably grant to the Village Association
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(and its officers, directors, designees, agents, and employees) and to any professional
management or accounting tirm providing management or accounting services to the Village
Association, the right to notify, in writing, the tenant of the Home of any delinquency by the
Owner of the Home in payment of any monetary obligations due to the Village Association,
including but not limited to the amount thereof. Further each Owner hereby agrees and
acknowledges that the disclosure of any of Owner's delinquent monetary obligations due to the
Village Association, as provided in the preceding sentence, shall not be construed or be deemed
to be a violation of the Fair Debt Collection Practices Act ("FDCPA") 15 U.S.C. Section 1692 et.
seq.
Each lease shall set forth the name, address, and telephone number of the Home's
Owner and of the tenant(s); the date the tenant's occupancy commences and ends; a description
of each motor vehicle owned or operated by the tenant or members of the tenant's household;
and a description of all pets to be kept at the Home.
If an Owner elects to permit a tenant to sublease during the term of the lease, such
sublease shall be subject to the limitations and requirements established in these Village
Covenants to the same extent and effect as the original lease.
Within five (5) days of a lease being signed for a Home, the Owner shall notify
the Board or the Village Association's managing agent and the Foundation of the lease and
provide an entire copy of such lease to the Village Association and the Foundation and such
additional information the Board or the Foundation may reasonably require. In addition to this
subsection (b), the Board and the Foundation may, from time to time, adopt reasonable Use
Restrictions and rules regulating leasing and subleasing.
No Owner may assign or otherwise transfer the Owner's obligations under these
Village Covenants to any tenant. The Village Association shall have the right to enforce the
covenants, conditions, and restrictions set forth in these Village Covenants against the Owner,
the tenant, or any member of the tenant's household, individually or collectively. The Village
Association shall not be bound by any provision in the lease or other agreement between Owner
and his or her tenant requiring prior notice or imposing other conditions on the rights of the
Village Association.
The Village Association shall be deemed a third party beneficiary of all leases of
Homes, and shall have the right, but not the obligation, to enforce the terms and conditions of
such leases against the tenant or the Owner. Notwithstanding the foregoing, the Village
Association's failure to object to any term or condition of a lease or occupancy arrangement shall
not be deemed to be consent or approval of any term or condition of the lease, nor shall the
Village Association have any obligation whatsoever for the performance of any obligation of
Owner or tenant contained in the lease or otherwise.
Notwithstanding any condition of any lease to the contrary, each Owner, by
acceptance of the deed to a Lot, hereby covenants and agrees with the Village Association and
all other Owners in the Village, including, but not limited to, Declarant, that the Owner shall be
responsible for any violation of the Village Documents resulting from the acts or omissions of
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his or her tenant, other occupants of the leased Home, and their respective guests to the same
extent that Owner would be liable for such violation if it had resulted from the acts or omissions
of the Owner or a member of the Owner's household or guests. The Owner's obligations
hereunder shall be deemed a guaranty of performance by his or her tenant, and the Village
Association shall have the right to take any action or seek any remedy for the tenant's failure or
refusal to comply with the Village Documents directly from or against the Owner without first
taking such action or obtaining such remedy from or against the tenant.
The Village Association may, without further approval of the Owner of the leased
Home, terminate the lease for violations of the Village Documents by the tenants, or the tenant's
family or guests and thereafter evict the tenants from the Home.
(c) Occupants Bound. Every Owner shall cause anyone occupying or visiting
his or her Lot to comply with the Village Documents and the Foundation Documents and shall be
responsible for all violations of the Village Documents and the Foundation Documents and any
damage and losses they cause to the Village Common Areas or "Common Areas" of Fiddler's
Creek® (as defined in the Foundation Declaration), notwithstanding the fact that such Persons
also are personally responsible for complying and may be sanctioned for any violation.
(d) Subdivision of a Lot. Lots may not be subdivided or their boundary lines
changed. If Declarant, or any Declarant Affiliate, owns any portion of the Village, it may convert
Lots it owns into Village Common Area.
(e) Lodging; Timeshares. No Lot may be used as a rooming house, hostel, or
hotel. Timesharing or other arrangements involving more than three ownership interests in a Lot
(including ownership by more than three Persons as joint tenants or tenants-in-common), or
assigning separate use periods of less than thirty (30) consecutive days' duration, are prohibited.
3.2. Rule Making Authority.
(a) Subject to the terms of this Article and the Board's duty to exercise
business judgment and reasonableness on behalf of the Village Association and the Members, the
Board may change (i.e., modify, cancel, limit, create exceptions to, or add to) the Use
Restrictions and/or Rules and Regulations; however, during the Development and Sale Period
the Board shall be required to obtain Declarant's written consent. The Board shall send the
Members notice of any proposed change at least five (5) business days before the Board meeting
at which such change will be considered. The Owners shall have a reasonable opportunity to be
heard at such Board meetings.
The proposed change to the Use Restrictions shall be approved unless
disapproved by a majority of the Class "A" Members' votes and by the Class "B" Member, if
any. The Board is not obligated to call a meeting of the Members to consider disapproval unless
it receives a petition that meets the Bylaws requirement for special meetings. If the Board
receives such a petition before the effective date of the change, the change shall not become
effective until after a meeting is held, and then subject to the outcome of the meeting. The Board.
acting alone, may amend and/or abolish the Rules and Regulations, or any of them, in the
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Board's discretion, subject to its duty to exercise business judgment and reasonableness on
behalf of the Village Association and the Members.
(b) Alternatively, members representing a majority of the Class "A" votes, at
a Village Association meeting duly called for such purpose, may vote to change the Use
Restrictions then in effect. Any such change during the Development and Sale Period shall
require approval of Declarant.
(c) No action taken under this Article shall have the effect of modifying,
repealing, or expanding the Foundation Declaration, the Architectural Guidelines or any
provision of these Village Covenants other than the Use Restrictions and Rules and Regulations,
respectively. In the event of a conflict between the Foundation Declaration, the Architectural
Guidelines, the Use Restrictions and/or the Rules and Regulations, the Foundation Declaration,
Architectural Guidelines, the Use Restrictions, the Rules and Regulations shall control in that
order. In the event of a conflict between the Use Restrictions or Rules and Regulations and any
provision within these Village Covenants (exclusive of the Use Restrictions), the Village
Covenants provision shall control.
(d) Except as may be set forth in the Foundation Documents or these Village
Covenants (either initially or by amendment) or in the initial Use Restrictions set forth in Exhibit
"C," or in the Rules and Regulations, the Village Association's actions with respect to Use
Restrictions and Rules and Regulations must comply with the following:
(i) Displays. Owners' rights to display religious and holiday signs,
symbols, and decorations on their Lots of the kinds normally displayed in residential
neighborhoods with homes of comparable type, quality, and price range to those in the Village
shall not be further abridged, except that the Village Association may adopt time, place, size,
number, and manner restrictions with respect to such displays, all such displays being in
accordance with the Foundation Declaration and any approval required by the Foundation and
the DRC, as applicable.
(ii) Signs. No sign, display, poster, advertisement, notice or other
lettering of any kind whatsoever (including, without limitation, "For Sale," "For Rent" or `By
Owner" or any other signs for the sale or renting of homes) shall be exhibited, displayed,
inscribed, painted or affixed in public view of any portion of any building, vehicle or other
Improvement in Mussorie Village at Fiddler's Creek® (including, without limitation, a Home)
without the prior written approval of the DRC and the ARB, which approval may be given,
withheld, conditioned or denied in the sole and absolute discretion of the DRC and the ARB.
Notwithstanding anything to the contrary contained in these Rules and Regulations, the DRC and
the ARB shall not approve any sign, display, poster, advertisement, notice or other lettering
which is or in the nature of a "For Sale," "For Rent," "By Owner" or any other similar sign for
the renting or sale of a Home so long as Declarant owns a Lot in Mussorie Village at Fiddler's
Creek® or so long as Declarant or any of Declarant's affiliates (or any of their respective
successors or assigns) are conducting sales and marketing of Homes in Mussorie Village at
Fiddler's Creek® or other communities developed or marketed by Declarant or its affiliates,
whichever is later. Signs, regardless of size, used by Declarant or a Builder, their successors or
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assigns, for advertising and marketing during the Development and Sale Period of Mussorie
Village at Fiddler's Creek® or other communities developed and/or marketed by Declarant
and/or its Affiliates and other signs authorized by Declarant and/or its Affiliates shall be exempt
from these restrictions. Such sign or signs as Declarant and/or its Affiliates and/or a Builder
and/or its Affiliates may be required to erect under the terms of an institutional mortgage shall be
exempt from this restriction. An Owner may display a security sign, provided by a contractor for
security services, as permitted by the HOA Act. This provision may not be amended without the
prior written consent of Declarant.
(iii) Activities Within Homes. The Village Association shall not
interfere with activities carried on within a Home, except that it may prohibit activities not
normally associated with residential property, and it may restrict or prohibit activities that create
monetary costs for the Village Association or other Owners, that create a danger to anyone's
health or safety, that generate excessive noise or traffic, that create unsightly conditions visible
outside the Home that create undesirable odors noticeable to persons outside the Home, or that
are an unreasonable source of annoyance, or that violates a provision of the Village Documents.
This provision shall not be applicable to Declarant and/or its Affiliates and/or a Builder and/or its
Affiliates.
(iv) Alienation. The Village Association shall not prohibit leasing or
transfer of any Lot or require the Village Association's or the Board's consent prior to leasing or
transferring a Lot. The Village Association may impose restrictions on leasing, in addition to
those set forth in this Article, and may require that Owners use a Village Association-approved
addendum (or include specific lease terms) and may impose a reasonable review or
administrative fee on the lease or transfer of any Lot.
(v) Abridging Existing Rights. The Village Association may not
require an Owner to dispose of personal property that was in or on a Lot in compliance with
previous rules. This exemption shall apply only during the period of such Owner's ownership of
the Lot and shall not apply to subsequent Owners who take title to the Lot after adoption of the
rule.
(vi) Right to Develop. The Village Association may not impede
Declarant's or any Builder's right to develop, market, or sell the Property or any portions thereof.
Declarant plans to undertake the work of constructing Homes and Improvements
upon the Property and may undertake the work of constructing other buildings upon adjacent
land or other property being developed or marketed by Declarant, Builder or any of their
affiliates. The completion of the aforementioned work and the sale, rental and other transfer of
Homes by Declarant, Builder and their affiliates are essential to the establishment and welfare of
the Property as a residential community. In order that such work may be completed and a fully
occupied community established as rapidly as possible, neither the Owners, the Village
Association, nor the ARB shall do anything whatsoever to interfere with or impede any of
Declarant's, Builder's or of their affiliates' activities relating to the selling or constructing of
Homes and Improvements upon the Property, the selling or constructing of other buildings upon
adjacent land or any other property being developed or marketed by Declarant, Builder or any
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their affiliates, or the sale, rental and/or other transfer of Homes by Declarant, Builder or any of
Declarant's affiliates. In this respect, Declarant hereby reserves the right for itself and its
employees, agents, licensees, and invitees to come upon any and all portions of the Property
(including a Lot even after the same has been conveyed to an Owner) as may be necessary or
convenient to enable Declarant, Builder and/or any of their affiliates to carry on its work and
other activities including, without limitation, Declarant's development and construction of
Mussorie Village at Fiddler's Creek® and the Homes therein.
In general, the restrictions and limitations set forth in this Article III and in
Exhibit "C" shall not apply to Declarant or to Lots owned by Declarant. Declarant shall
specifically be exempt from any restrictions which interfere in any manner whatsoever with
Declarant's plans for development, construction, sale, lease, or use of the Property and to the
Improvements thereon. Declarant shall be entitled to injunctive relief for any actual or
threatened interference with its rights under this Article III and Exhibit "C" in addition to
whatever remedies at law to which it might be entitled.
This subsection (e) may not be amended without the prior written consent of Declarant so
long as it owns any portion of the Property.
3.3. Owners' Acknowledgment and Notice to Purchasers.
Each Owner, by accepting a deed, acknowledges and agrees that the use, enjoyment, and
marketability of his or her Lot is limited and affected by the terms of the Village Documents,
including the Use Restrictions and the Rules and Regulations, which may change from time to
time. All Lot purchasers are on notice that the Village Association may have adopted changes to
the Use Restrictions and Rules and Regulations and that such changes may or may not be set
forth in a recorded document. Copies of the current Use Restrictions and Rules and Regulations
may be obtained from the Village Association.
ARTICLE IV
ARCHITECTURE AND LANDSCAPING
4.1. General.
Mussorie Village at Fiddler's Creek® is being developed with the intent that Homes
harmonize with each other and present a consistent style. To ensure the preservation of the
existing harmonious design and to prevent the introduction of design that is not in keeping with
Mussorie Village at Fiddler's Creek®, Declarant hereby declares that the style and form of
Mussorie Village at Fiddler's Creek®, as originally constructed or approved by Declarant and
the Foundation, with respect to architectural style, colors and materials as the standard. This
standard shall continue in effect until the adoption and publication of new guidelines and
standards.
Except for work done by or on behalf of Declarant or any Declarant Affiliate, no
structure or thing shall be placed, erected, or installed upon any Lot and no improvements of any
kind or other work (including, without limitation, staking, clearing, excavation, grading and
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other site work, exterior alterations or additions, or planting or removal of landscaping) shall take
place within the Village, except in compliance with this Article, the Architectural Guidelines and
the approval of the Design Review Committee ("DRC") pursuant to Section 9 of the Foundation
Declaration.
All Owners of Lots along or adjacent to the Lakes are prohibited from disturbing or
removing any vegetation and are subject to certain restrictions regarding fences as set forth in
Section 5.1(c) and in Exhibit C.
An Owner shall not plant any shrubs, trees and/or landscaping on his or her Lot and/or in
any manner alter the landscaping in the Village as initially installed by Declarant, without the
prior written approval of Declarant and the Foundation, for as long as Declarant owns a Home,
and thereafter without the prior written consent of the ARB and the Foundation. If an Owner
receives such approvals and plants any shrubs, trees and/or landscaping on his or her Lot, such
Owner shall be responsible for the payment of the increase in maintenance fees for the
maintaining of such shrubs, trees and/or landscaping.
Any Owner may remodel, paint, or redecorate the interior of the Home on his or her Lot
without approval hereunder. However, modifications to the interior of screened porches, patios,
and any other portions of a Lot or structure visible from outside a structure are subject to the
approvals required under this Article.
Improvements shall be constructed only by qualified Persons acceptable to the Reviewer
[as defined in Section 4.2(c)] and the DRC. Owners shall be responsible for obtaining all permits
and approvals from the County and other governmental agencies.
This Article does not apply to Declarant's or its Affiliates' activities, nor to the Village
Association's activities during the Development and Sale Period.
4.2. Architectural Review.
Notwithstanding the creation of the ARB as set forth in this Article IV, no improvements,
additions, deletions of any kind, including without limitation, any building, fence, wall, pool,
screen enclosure, awning, drain, disposal system, painting or other improvement shall be
commenced, erected, placed, maintained upon any Home or Lot, nor shall any addition, change,
alteration, repair or replacement therein or thereof be made unless or until the plans and
specifications (or paint color) for same have been approved by the DRC pursuant to Section 9 of
the Foundation Declaration.
(a) By Declarant. In addition to the DRC's approval, Declarant shall also have
the authority to administer and enforce architectural controls and to review and act upon all
applications for architectural and other improvements within the Village. Declarant's rights
under this Article shall continue until termination of the Development and Sale Period, unless
Declarant earlier terminates its rights in a recorded instrument. Declarant may designate one or
more Persons to act on its behalf in reviewing any application. In reviewing and acting upon any
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request for approval, Declarant or its designee acts solely in Declarant's interest and owes no
duty to any other Person.
Declarant may from time to time delegate or assign all or any portion of its rights
under this Article to any other Person or committee, including the ARB. Any such delegation
shall be in writing, shall specify the delegated responsibilities, and shall be subject to (i)
Declarant's right to revoke such delegation at any time and reassume its prior jurisdiction, and
(ii) Declarant's right to veto any decision which it determines, in its discretion, to be
inappropriate or inadvisable for any reason. So long as Declarant has any rights under this
Article, the jurisdiction of other entities shall be limited to such matters as Declarant specifically
delegates.
(b) Architectural Review Board. Upon Declarant's delegation or upon
expiration or termination of Declarant's rights under this Article, the Village Association, acting
through the ARB, shall assume jurisdiction over architectural matters. When appointed, the ARB
shall consist of at least three (3), but not more than five (5), persons. Members of the ARB need
not be Members of the Village Association or representatives of Members, and may, but need
not, include architects, engineers, or similar professionals, who may be compensated in such
manner and amount, if any, as the Board may establish. The ARB members shall serve and may
be removed and replaced in the Board's discretion.
Unless and until such time as Declarant delegates any of its reserved rights to the
ARB or Declarant's rights under this Article terminate, the Village Association shall have no
jurisdiction over architectural matters.
(c) Reviewer. For purposes of this Article, the "Reviewer" is the Person
having jurisdiction under this Section in a particular case.
(d) Fees; Assistance. The Reviewer may establish and charge reasonable fees
for its review of applications and may require that such fees be paid in advance. Such fees are in
addition to any fees that may be charged by the DRC pursuant to the Foundation Documents.
Such fees may include, without limitation, the reasonable costs incurred in having any
application reviewed by architects, engineers, or other professionals the Reviewer employs or
with whom it contracts.
The Board may include the compensation of such Persons in the Village
Association's annual operating budget.
4.3. Guidelines and Procedures.
(a) Architectural Guidelines. Declarant may prepare the initial Architectural
Guidelines, which may contain general provisions applicable to all of the Village as well as
specific provisions that may vary according to location within the Village or product type. The
Architectural Guidelines are intended to provide guidance to Owners regarding matters of
particular concern to the Reviewer. The Architectural Guidelines are not the exclusive basis for
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the Reviewer's decisions, and compliance with the Architectural Guidelines does not guarantee
an application's approval.
Declarant shall have sole and full authority to amend the Architectural Guidelines,
from time to time, during the Development and Sale Period. Declarant's right to amend shall
continue even if its reviewing authority is delegated to the ARB, unless Declarant also delegates
the power to amend to the ARB. Upon termination or delegation of Declarant's right to amend,
the Board may amend the Architectural Guidelines, subject to Declarant's veto right under
Section 4.2(a) (if still applicable).
Amendments to the Architectural Guidelines shall be prospective only. They shall
not require modifications to or removal of structures, improvements, and other things previously
approved once the approved construction or modification has begun. However, any new work or
improvements on such structures must comply with the Architectural Guidelines as amended.
Subject to the Village-Wide Standard, there is no limit to the scope of amendments to the
Architectural Guidelines, and such amendments may remove requirements previously imposed
or otherwise make the Architectural Guidelines less restrictive.
The Reviewer shall make the Architectural Guidelines available to Owners and
Builders who seek to engage in development or construction within the Village. In Declarant's
discretion, the Architectural Guidelines may be recorded, in which event the recorded version, as
it may be amended from time to time, shall control in the event of any dispute as to which
version of the Architectural Guidelines was in effect at any particular time.
(b) Procedures. Unless the Architectural Guidelines provide otherwise, no
construction activities or other activities described in Section 4.1 may begin until a request is
submitted to and approved in writing by the DRC and the Reviewer. The request must be in
writing and be accompanied by plans and specifications and other information the DRC,
Reviewer and/or the Architectural Guidelines require. Plans and specifications shall show, as
applicable, site layout, structural design, exterior elevations, exterior materials and colors,
landscaping, drainage, exterior lighting, irrigation, and other features of proposed construction or
other activity as the DRC and the Reviewer deem relevant.
In reviewing each submission, the DRC and the Reviewer may consider any
factors it deems relevant, including, without limitation, harmony of the proposed design with
surrounding structures and environment. Decisions may be based on purely aesthetic
considerations. Each Owner acknowledges that aesthetic determinations are purely subjective
and that opinions may vary as to the desirability and/or attractiveness of particular
improvements. The DRC and the Reviewer shall have the discretion to make final, conclusive,
and binding determinations on matters of aesthetic judgment and such determinations are not
subject to review so long as they are made in good faith and in accordance with the required
procedures.
Once the DRC has approved the request, the Reviewer shall make a determination
on each application within forty-five (45) days after receipt of a completed application along
with the written approval from the DRC, and all other information the Reviewer requires. The
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Reviewer may permit or require that an application be submitted or considered in stages, in
which case, a final decision shall not be required until forty-five (45) days after the final,
required submission stage. The Reviewer may (i) approve the application, with or without
conditions; (ii) approve a portion of the application, with or without conditions, and disapprove
other portions; or (iii) disapprove the application. The Reviewer shall notify the applicant in
writing of a final determination on any application. In the case of disapproval, the Reviewer
may, but shall not be obligated to, specify the reasons for any objections and/or offer suggestions
for curing any objections. The Owner must seek the DRC's written approval to any and all
modifications to the request that are imposed by the Reviewer prior to the Reviewer's final
determination if any conditions are imposed by the Reviewer.
After the initial 45-day period has elapsed, if the Owner has not received notice of
the Reviewer's determination, the Owner may make a second written request for approval of the
plans previously submitted which shall be marked "Second Request." If the Reviewer fails to
respond within seven (7) business days from receipt of the Second Request, approval shall be
deemed given. However, no approval, whether expressly granted or deemed granted, shall be
inconsistent with the Architectural Guidelines or other Village Documents unless a written
variance has been granted pursuant to Section 4.6.
Notwithstanding anything to the contrary in these Village Covenants or the
Bylaws, Owners shall send any such "Second Request" via the U. S. Postal Service, certified
mail, return receipt requested, or by commercial overnight carrier that obtains a signed receipt
upon delivery. A Second Request shall be deemed made, and the seven (7) business day time
period shall commence running, on the date of the Reviewer's actual receipt of the Second
Request, as evidenced by its signature on the return receipt provided by the U. S. Postal Service
or in the records of the overnight carrier, as applicable.
As part of any approval, the DRC and/or the Reviewer may require that
construction and landscaping in accordance with approved plans commence and be completed
within a specified time period. If construction does not commence within the required period, the
approval shall expire and the Owner must reapply for approval before commencing any activities
within the scope of this Article. Once commenced, such activities must be diligently pursued to
completion. All elements of the approved plans shall be completed within one year of
commencement unless a shorter or longer period is otherwise specified in the notice of approval
or the Architectural Guidelines, or unless the DRC and the Reviewer, in their discretion, grant
extensions in writing. If approved work is not completed within the required time, it shall be in
violation of this Article and shall be subject to enforcement action by the DRC, the Village
Association or Declarant.
Any approvals granted under this Article are conditioned upon completion of all
elements of the approved work, unless written approval to modify any application has been
obtained.
Declarant or the ARB, by resolution, may exempt certain activities from the
application and approval requirements of this Article, provided such activities are undertaken in
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strict compliance with the requirements of such resolution. Any such resolution shall require the
written consent of the DRC.
4.4. Security Deposits for Improvements; Indemnification.
Any Owner desiring to make Improvements may be required by the ARB, depending
upon the Improvements being requested and the manner of installation of such Improvements, to
provide to the ARB, at the time of the Owner's submission of plans and specifications for review
and approval by the Reviewer, a Five Thousand Dollar ($5,000.00) security deposit to cover
costs of incidental damage caused to Village Common Areas, an adjacent Home or Lot, or any
other property (whether real or personal) by virtue of such Owner's construction of
Improvements. Such security deposit is in addition to any security deposit that may required by
the DRC. The ARB shall have the sole and absolute discretion to determine whether a security
deposit is required for the Improvements being requested. The ARB shall not be obligated to
place the security deposit in an interest bearing account. The Owner shall be entitled to the
return of the security deposit upon: (i) such Owner's written notice to the ARB that the
Improvements covered by the security deposit have been completed in accordance with the plans
and specifications approved by the ARB, and (ii) the ARB's (or its duly authorized
representative's) inspection of such Improvements confirming completion; provided, however,
should any incidental damage be caused to Village Common Areas by virtue of such Owner's
construction of Improvements, the security deposit shall not be returned to Owner until such
damages have been repaired. In the event that Owner has not repaired such damages to the
Village Common Areas to the satisfaction of the ARB, the ARB shall have the right (but not the
obligation), after five (5) days notice to the offending Owner, to repair such incidental damage
and to use so much of the security deposit held by the ARB to reimburse itself for the costs of
such work. Further, the offending Owner hereby agrees to indemnify and reimburse the ARB for
all reasonable costs expended by the ARB that exceed the security deposit, including Legal Fees,
if any, incurred in connection therewith. Should any incidental damage be caused to an adjacent
Lot or Home by virtue of such Owner's construction of Improvements, the Owner of the adjacent
Lot (the "Adjacent Lot Owner") may, at such Adjacent Lot Owner's sole option: (a) remedy such
damage and submit to the ARB a receipt, invoice or statement therefor for reimbursement from
the offending Owner's security deposit; or (b) allow the offending Owner to repair such
incidental damage to the Adjacent Lot Owner's Lot or Home, at the offending Owner's sole cost
and expense, and upon receipt by the ARB of written notice from the Adjacent Lot Owner that
such incidental damage has been repaired, the offending Owner shall be entitled to a return of the
balance of the security deposit being held by the ARB, if any.
Notwithstanding anything contained in this Section to the contrary, the ARB return of the
security deposit being held by it for any such Improvements shall be based solely on
considerations set forth above. The ARB's return of the security deposit does not and shall not
be construed to constitute a determination by members and representatives of the ARB,
Declarant, and/or the Village Association of the structural safety, approval or integrity of any
Improvement, conformance with building or other codes or standards, or the proper issuance of
governmental permits and approvals for any Improvement. By submitting a request for review
and approval of proposed plans and specifications, along with the security deposit required
hereunder, an Owner shall be deemed to have automatically agreed to hold harmless and
indemnify the members and representatives of the ARB, Declarant, and the Village Association
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generally, from any loss, claim, damage or liability connected with or arising out of the
Improvements or alterations, and/or the security deposit (including, without limitation, the
disbursement thereof).
The ARB shall not be liable or responsible to anyone for any damages, losses or expenses
resulting from the ARB's holding of the security deposit or disbursement thereof unless same
shall be caused by the gross negligence or willful malfeasance of the ARB. In the event of any
disagreement relating to the security deposit held by the ARB or the disbursement thereof, the
ARB shall be entitled (but not obligated) to refuse to disburse the security deposit (or any portion
thereof) as long as such disagreement may continue, and the ARB shall not become liable in any
way for such refusal. The ARB shall have the right, at any time, after a dispute has arisen, to
pay the security deposit (or any portion thereof) held by it into any court of competent
jurisdiction for payment to the appropriate party, whereupon the ARB's obligations hereunder
shall terminate and the ARB shall be automatically released of any and all obligations.
4.5. No Waiver of Future Approvals.
Each Owner acknowledges that the people reviewing applications under this Article will
change from time to time and that opinions on aesthetic matters, as well as interpretation and
application of the Architectural Guidelines, may vary accordingly. In addition, each Owner
acknowledges that it may not always be feasible to identify objectionable features until work is
completed, at which time, it may or may not be unreasonable to require that such objectionable
features be changed. However, the Reviewer may refuse to approve similar proposals in the
future. Approval of applications or plans shall not constitute a waiver of the Reviewer's right to
withhold approval of similar applications, plans, or other matters subsequently or additionally
submitted for approval.
4.6. Variances.
The Reviewer may authorize variances from compliance with the Architectural
Guidelines and any procedures when circumstances such as topography, natural obstructions,
hardship, or aesthetic or environmental considerations require, so long as the DRC provides its
written approval of any such variances. No variance shall (a) be effective unless in writing; (b)
be contrary to these Village Covenants or the Foundation Documents; or (c) prevent the
Reviewer from denying a variance in other circumstances. A variance requires Declarant's
written consent during the Development and Sale Period and, thereafter, requires the Board's
written consent. If such variances are granted by the DRC and the Reviewer, no violation of the
covenants, conditions and restrictions contained in these Village Covenants shall be deemed to
have occurred with respect to the improvements for which the variance was granted.
4.7. Limitation of Liability.
This Article establishes standards and procedures as a mechanism for maintaining and
enhancing the overall aesthetics of the Village. The standards and procedures do not create any
duty to any Person. Review and approval of any application pursuant to this Article may be
based on purely aesthetic considerations. The Reviewer is not responsible for the structural
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integrity or soundness of approved construction or modifications, for compliance with building
codes and other governmental requirements, or for ensuring that every Home is of comparable
quality, value, or size, of similar design, or aesthetically pleasing or otherwise acceptable to other
Owners.
Declarant, Declarant's Affiliates, any predecessor Declarant, the Village Association, its
officers, the Board, the ARB, the Village Association's management agent, Foundation
Declarant, the DRC, any committee, or any member of any of the foregoing shall not be held
liable for the approval of, disapproval of, or failure to approve or disapprove any plans; soil
conditions, drainage, or other general site work related to approved work; any defects in plans
revised or approved hereunder; any loss or damage arising out of the action, inaction, integrity,
financial condition, or quality of work of any owner or their contractor or their subcontractors,
employees, or agents, whether or not Declarant has approved or featured such contractor as a
Builder in the Village; or any injury, damages, or loss arising out of the manner or quality or
other circumstances of approved construction on or modifications to any Lot or in any other way
connected with the performance of the duties hereunder unless due to willful misconduct or bad
faith. In all matters, the Village Association shall defend and indemnify and hold harmless
Declarant, Declarant's Affiliates, Foundation Declarant, the DRC, any predecessor Declarant,
the Board, the ARB, the members of each, and the Village Association officers as provided in
the Articles.
By submitting a request for review and approval, an Owner shall be deemed to have and
does automatically agree to indemnify, defend and hold harmless Declarant, Declarant's
Affiliates, any predecessor Declarant, the Village Association, its officers, the Board, the ARB,
Foundation Declarant, the DRC, the Village Association's management agent, any committee, or
any member of any of the foregoing, from and against any and all claims, causes of action,
losses, damages, liabilities, costs and expenses (including, without limitation, Legal Costs)
arising from, relating to or in any way connected with the Improvement or alterations for which
such request was submitted and/or the security deposit (including, without limitation, the
disbursement thereof). Furthermore, approval by the ARB and the DRC of any request does not
excuse any Owner from also obtaining approvals from all applicable governmental authorities.
4.8. Enforcement.
Any construction, alteration, improvement or other work done in violation of this Article
or the Architectural Guidelines is subject to enforcement action pursuant to Section 7.4. Any act
of any contractor, subcontractor, agent, employee, or invitee of an Owner shall be deemed to be
an act done by or on behalf of such Owner.
ARTICLE V
MAINTENANCE AND REPAIR
The responsibility for the maintenance of the Property is divided between the Village
Association and the Owners. Interior maintenance of structures is the responsibility of the
owners of such structures. The Village Association shall be responsible for the maintenance of
the Village Common Area, the expenses of which shall be an Operating Expense.
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5.1. Maintenance of Lots.
(a) By the Owners. Each Owner must maintain his or her Home in a manner
consistent with the Village Documents, the Village-Wide Standard, and any other applicable
covenants, except to the extent that such maintenance responsibility is assigned to or assumed by
the Village Association, or assigned to the Village Association under these Village Covenants or
any Supplemental Declaration or additional covenants applicable to such Lot. The Owner of
each Home shall be responsible for any damages caused by a failure to so maintain such Home.
The Owners' responsibility for maintenance, repair and replacement shall include, but not be
limited to, all of the physical structures constructed in, upon, above or below the Lot, and
physical items attached or connected to such structures that run beyond the boundary line of the
Lot which exclusively service or benefit the Lot and Home. Without limiting the generality of
the foregoing, the Owner of each Lot shall keep all drainage structures (such as catch basins)
located on the Owner's Lot clear of grass, leaves and other debris. Additionally, the painting,
caulking and maintenance of the exterior surface of all walls (including, but not limited to any
masonry walls extended from the rear of the Home), doors, windows and roof of the physical
structure of the Home shall be performed by the Owner, and the exterior surface of such walls,
doors, windows and roof shall at all times be maintained in a good and serviceable condition
with no damage or other defect therein by the Owner. The Owner of a Lot further agrees to pay
for all utilities (including, without limitation, those provided by the Foundation), such as
telephone, cable or satellite television, water, sewer, sanitation, electric, etc., that may be
separately billed or charged to each Home. The Owner of each Lot shall be responsible for
insect and pest control within the Home and the Lot. Whenever the maintenance, repair and
replacement of any items which an Owner is obligated to maintain, repair or replace at such
Owner's own expense is occasioned by any loss or damage which may be covered by any
insurance maintained in force by the Village Association, the proceeds of the insurance received
by the Village Association shall be used for the purpose of making such maintenance, repair or
replacement, except that the Owner shall be, in said instance, required to pay such portion of the
costs of such maintenance, repair and replacement as shall, by reason of the applicability of any
deductibility provision of such insurance or otherwise, reduce the amount of the insurance
proceeds applicable to such maintenance, repair or replacement.
(i) Moisture Control. In addition to the foregoing, each Owner shall
be required to maintain appropriate climate control, keep his or her Home clean, and take
necessary measures to retard and prevent mold from accumulating in the Home. Each Owner
shall be required to clean and dust the Home on a regular basis and to remove visible moisture
accumulation on windows, window sills, walls, floors, ceilings and other surfaces as soon as
reasonably possible and must not block or cover any heating, ventilation or air-conditioning
ducts. Owners are required to report immediately in writing to the Board (i) any evidence of
water leak or water infiltration or excessive moisture in the Home, and any other common
elements; (ii) any evidence of mold that cannot be removed with a common household cleaner;
(iii) any failure or malfunction in heating, ventilation or air conditioning, and (iv) any inoperable
doors or windows. Each Owner shall be responsible for damage to the Home and personal
property, as well as any injury to the Owner and/or occupants of the Home resulting from the
Owner's failure to comply with these terms. Each Owner is fully responsible and liable for the
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entire amount of all cleaning expenses and remediation costs incurred by the Village Association
to remove mold from the Home if the Owner fails to remediate same and each Owner shall be
responsible for the repair and remediation of all damages to the Home caused by mold.
(b) By the Village Association. The Village Association shall perform, or
cause to be performed, the following:
(i) maintenance (including, mowing, fertilizing, edging, watering,
pruning, and replacing, and controlling disease and insects), of all lawns and landscaping
installed on the Lot as part of the initial construction of the Lots, specifically excluding
landscaping within any enclosed area not readily accessible from outside the Home.
(ii) operation, maintenance, repair, and replacement of any irrigation
equipment (including, without limitation, any sprinklers, pumps, wells, water lines, and time
clocks, wherever located) serving the Lots, except that the Association shall have no
responsibility for any sprinklers or other irrigation equipment installed by the Owner or
occupants of any Lot after issuance of a certificate of occupancy for the Home on the Lot.
Notwithstanding the foregoing, each Owner shall be responsible for any damage caused to any
portions of the irrigation system caused by such Owner and/or such Owner's family members,
tenants, guests and invitees and Owner shall indemnify, defend and hold Association harmless
from and against any and all losses, claims damages and/or liabilities resulting from any such
damage.
(c) Declarant or a Builder may have constructed or installed drainage swales,
drainage lines, and/or other equipment on a Lot for the purpose of managing and/or containing
the flow of excess surface water, if any, found upon such Lot from time to time. Except to the
extent that such responsibility is assigned to or assumed by the Owners pursuant to these Village
Covenants or any Supplemental Declaration, the Village Association shall be responsible for the
maintenance, operation, and repair of such drainage swale(s), drainage lines, and other
equipment. Maintenance, operation, and repair shall, without limitation, mean the exercise of
practices, such as mowing and erosion repair, which allow the drainage swales, drainage lines,
and other equipment to provide drainage, water storage, conveyance, or other storm water
management capabilities as permitted by the SFWMD. Filling, excavation, construction of
fences, or otherwise obstructing the surface water flow in or into the drainage swales, drainage
lines, and other equipment is prohibited. No alteration of a drainage swale, drainage lines, and
other equipment shall be authorized and any damage to any drainage swale, drainage lines, and
other equipment, whether caused by natural or human-induced phenomena, shall be repaired and
the drainage swale returned to its former condition as soon as possible by the Owner(s) of the
Lot upon which the drainage Swale, drainage lines, and other equipment is located.
(d) The Village Association shall have the right, but not the obligation,
following a tropical storm, hurricane or other Act of God, to upright and/or remove any fallen or
dislodged trees, at the respective Owner's cost and expense on (i) any Lot, and/or (ii) any grassed
areas located between the front and/or side(s) of such Owner's Lot and the street; on behalf of
the Owner of such Lot. The Owner of said Lot shall be required to reimburse the Association for
the costs and expenses incurred by the Association in connection with the uprighting and/or
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removal of any fallen or dislodged trees. In that regard, the Village Association may levy a
Special Assessment against such Lot in connection with such costs and expenses, to the
exclusion of all other Owners.
(e) The Village Association has a reasonable right of entry upon any Lot to
make emergency repairs and to do other work reasonably necessary for the proper maintenance
and operation of Mussorie Village at Fiddler's Creek®.
(f) Unless otherwise specifically provided in the Village Documents or in
other instruments creating and assigning maintenance responsibility, responsibility for
maintenance includes responsibility for repair and replacement. The maintenance, repair,
replacement, and other obligations of the Village Association and Owner specified in these
Village Covenants shall be performed as and when the Board determines it necessary to maintain
the property to a level consistent with the Village-Wide Standard.
5.2. Insurance on Lots; Casualty Losses.
Each Owner shall maintain property insurance providing fire and extended coverage at
full replacement cost, less a reasonable deductible, on all insurable improvements located on
such Owner's Lot, to the extent such responsibility is not assigned to or assumed by the Village
Association pursuant to these Village Covenants or any applicable Supplemental Declaration. In
addition, every Owner shall be obligated to obtain and maintain at all times insurance covering
consequential damages to any other Lot or the Village Common Area due to occurrences
originating within the Owner's Lot caused by the negligence of the Owner, the failure of the
Owner to maintain the Lot, and any other casualty within the Lot which causes damage to the
Lots or the Village Common Area, to the extent such coverage is not provided by policies
maintained by the Village Association or to the extent insurable losses may result in the Owner's
liability for payment of deductibles under the Village Association's policies. Such insurance
policy or policies shall name the Village Association as an additional insured. Unless a
Mortgagee is named as the loss payee under any such policy, the Village Association shall be
named as an additional loss payee.
In the event of damage to or destruction of a structure on a Lot, the Owner shall promptly
repair or reconstruct the structure in a manner consistent with the original construction or other
plans and specifications approved in accordance with Article IV of these Village Covenants and
Article IX of the Foundation Declaration.
Each Owner shall provide a certificate evidencing such insurance to the Village
Association within ten (10) days of any written request from the Board of Directors. In addition,
if the Board so requests, each Owner shall file with the Village Association a copy of the
individual policy or policies covering his or her Lot. Each Owner shall promptly notify the
Board in writing in the event such policy on his or her Lot is canceled. In the event that an
Owner fails to obtain any insurance which the Owner is required to obtain hereunder, or permits
such insurance to lapse, the Village Association may, but shall not be obligated to, obtain such
insurance on behalf of the Owner and assess the costs thereof to the Owner and the Owner's Lot.
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In the event of damage to or destruction of a structure on a Lot, the Owner shall promptly
repair or reconstruct the structure in a manner consistent with the original construction or other
plans and specifications approved in accordance with Article IV of these Village Covenants and
Article IX of the Foundation Declaration, except that if the Village Association has assumed
responsibility for insurance coverage hereunder, the Village Association shall, subject to the
limitations above, be responsible for repair or reconstruction of those portions of the structure on
the Lot for which the Village Association has expressly, in writing, assumed insurance
responsibility.
Declarant, Builders and their respective Affiliates shall be exempt from the provisions of
this Section 5.2, provided that any such reconstruction, rebuilding or repairs made by Declarant
or Builder shall be consistent, as to the exterior appearance, with the improvements as they
existed prior to the damage or other casualty.
ARTICLE VI
THE VILLAGE ASSOCIATION AND ITS MEMBERS
6.1. Function of Village Association.
The Village Association is the entity responsible for management, maintenance,
operation, and control of the Village Common Areas. The Village Association also has primary
responsibility for administering and enforcing the Village Documents. The Village Association
shall perform its functions in accordance with the Village Documents and Florida law. The
Board shall be responsible for management of the Village Association and may contract with a
property manager for such purposes. The Board is appointed or elected as provided in the
Bylaws. Membership in the Village Association is appurtenant to and may not be severed from
the Lot. The rights and obligations of a Member may not be assigned or delegated except as
provided in these Village Covenants, the Articles of Incorporation, or Bylaws of the Village
Association, and shall automatically pass to the successor-in-interest of any Owner upon
conveyance of such Owner's interest in the Lot.
6.2. Membership.
The Village Association initially shall have two (2) classes of membership, Class "A"
and Class "B." Class "A" Members are all Owners of Lots in Mussorie Village at Fiddler's
Creek®, except the Class "B" Member. The sole Class "B" Member shall be Declarant. The
Class "B" membership shall terminate at Turnover.
If a Lot is owned by more than one Person, each co-Owner shares the privileges of the
membership, subject to reasonable Board regulation and the voting restrictions described in
Section 6.3 and in the Articles. Co-Owners are jointly and severally obligated to perform the
responsibilities of an Owner. The membership rights of an Owner that is not an individual (e.g.,
a corporation) may be exercised by any officer, director, partner, or trustee, or by an individual
the Owner designates from time to time in a voting certificate provided to the Village
Association's Secretary.
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6.3. Voting.
(a) Class "A." Class "A" Members have one (1) equal vote for each Lot they
own, except that there is only one (1) vote per Lot.
(b) Class "B." The Class "B" Member shall have three (3) times the total
number of votes of the Class "A" Members plus one (I).
Upon termination of the Class "B" membership, Declarant shall be a Class "A" Member
entitled to one Class "A" vote for each Lot it owns.
Any vote associated with a Lot (i) owned by a husband and wife may be exercised by the
husband or wife, subject to the provision of these Village Covenants, the Articles and the
Bylaws, or (ii) owned by a corporation, partnership, trust or other entity or joint form of
ownership, may only be exercised by the individual(s) listed on a voting certificate filed with the
Board of Directors and then subject to Rules and Regulations of the Village Association.
6.4. Relationship to Fiddler's Creek Foundation, Inc..
(a) The Foundation. Mussorie Village at Fiddler's Creek® is a component of
the larger master planned community known as Fiddler's Creek. All Owners, lessees, and
occupants of Homes in Mussorie Village at Fiddler's Creek® shall have access to and use of
various services and facilities provided by the Foundation in accordance with and subject to the
Foundation Documents. Every Owner, by acceptance of a deed to a Lot and Completed Home,
acknowledges that, in addition to being subject to and bound by the Village Documents, he or
she is subject to and bound by the Foundation Documents and that he or she is automatically a
Member of and subject to Assessment by the Foundation in accordance with the terms of the
Foundation Declaration. Each Owner covenants and agrees to pay all Assessments levied
against such Owner's Home by the Foundation.
The "Voting Representative" (as defined in the Foundation Declaration) of the
Village Association shall be the person appointed by the Board to act as same, who shall cast the
votes for the Owners with respect to all Foundation matters requiring a membership vote
pursuant to the Foundation Documents and the Bylaws of the Village Association. The Voting
Representative of the Village Association shall cast the votes in the same manner as originally
cast by the Members of the Village Association. In elections for Directors of the Foundation and
all other votes of the Foundation and as provided in this Declaration, ballots from Owners shall
be collected and tabulated by the Village Association. Upon receipt of notice of an election or
other matter to be voted upon from the Secretary of the Foundation and receipt of ballots from
each Owner, it shall be the duty of the Village Association to tabulate Owners' ballots for the
Foundation Board and deliver all votes at the meeting of the Foundation.
(b) Supremacy of the Foundation Documents. In addition to all of the rights
and obligations which have been conferred or imposed upon the Village Association pursuant to
the Village Documents, the Village Association shall be entitled to exercise any of the rights
conferred upon it and shall be subject to all of the obligations imposed upon it pursuant to the
Foundation Documents. The Association and all committees thereof shall also be subject to all
superior rights and powers which have been conferred upon the Foundation pursuant to the
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Foundation Documents. The Association shall take no action in derogation of the rights of the
Foundat ion.
(c) Cumulative Effect; Conflict. The provisions of the Village Documents
shall be cumulative with the provisions of the Foundation Documents; however, in the event of
conflict between or among the provisions of the Village Documents and the Foundation
Documents, the latter shall be superior. The foregoing priorities shall not prevent enforcement
by the Village Association of provisions or rules in the Village Documents which are stricter
than those of the Foundation Documents.
ARTICLE VII
VILLAGE ASSOCIATION POWERS AND RESPONSIBILITIES
7.1. Acceptance and Control of Village Common Area
(a) Declarant or Builder and their respective Affiliates, or their respective
designees, may, from time to time, transfer to the Village Association, and the Village
Association shall accept, personal property and/or fee title or other property interests in any
improved or unimproved real property included within the Property. Subject to the provisions of
Section 15.9, upon Declarant's request, the Village Association shall transfer back to Declarant
or its designees any real property which has not been improved by a structure intended for
occupancy, whether or not such property has been improved by landscaping, decorative walls,
signs, irrigation, utilities, or other improvements, if originally conveyed to the Village
Association for no payment.
(b) The Village Association is responsible for management, operation, and
control of the Village Common Area, subject to any covenants, easements, or restrictions set
forth in the deed or other instrument transferring the property to the Village Association. The
Village Association may enter into a property management agreement with any Person,
including Declarant or any Declarant Affiliate.
(c) Declarant may elect to construct or install certain improvements or
facilities upon portions of the Village Common Area, but is not obligated to do so and may elect
to leave portions of the Village Common Area in their natural unimproved state. Declarant shall
have the absolute right and power to determine what improvements or facilities, if any, will be
located on the Village Common Area during the Development and Sale Period.
7.2. Maintenance of Village Common Areas.
The Village Association shall maintain (a) the Village Common Areas in accordance
with the Village-Wide Standard. The Village Common Areas include the Landscape Buffer
Easements ("L.B.E.") and Sign Easements ("S.E.") landscaping. signage, green space and other
improvements located on the Village Common Area; and (b) such portions of Lots as are
specifically identified as the Village Association's responsibility under Article V.
The CDD shall own and be responsible for the maintenance, repair and replacement of
the Surface Water and Storm Water Management System contained within the Property, but not
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including any such areas, improvements, or equipment maintained by the County or any other
governmental or quasi-governmental body.
The Village Association is obligated to maintain, to oversee and provide for the
continued, phased removal of nuisance, exotic plant species that become reestablished within the
Village Common Area for the life of the Village consistent with Section 715.4 of the Collier
County Land Development Code.
The Village Association may maintain other property that it does not own, including
property dedicated to the public, if the Board determines that such maintenance is necessary or
desirable to maintain the Village-Wide Standard and the owner of such other property consents.
The Village Association shall not be liable for any damage or injury occurring on or arising out
of the condition of property which it does not own except to the extent that it has been grossly
negligent in performing its maintenance responsibilities.
Unless otherwise provided in these Village Covenants, the costs associated with
maintenance, repair, and replacement of the Village Common Areas shall be an Operating
Expense.
Unless Declarant expressly agrees in writing with the Village Association to pay the
costs of maintaining any portion of the Village Common Areas, Declarant shall have no such
obligation, regardless of any inferences which may be drawn from promotional or other
materials. Notwithstanding the foregoing, in the event Declarant determines that the Village
Association is not operating, maintaining, repairing, replacing and/or managing the Village
Common Areas in accordance with the Village Association's obligations hereunder, Declarant
may (but is not obligated) rectify such failure by the Village Association after first providing the
Village Association written notice thereof and an opportunity to cure such failure with fifteen
(15) days after delivery of such written notice. In the event that the Village Association fails to
so cure, then Declarant may do so on behalf of the Village Association and all fees, costs and
expenses incurred by Declarant due to the Village Association's failure shall be reimbursed by
the Village Association within ten (10) days following written demand therefor. All sums unpaid
by the Village Association to Declarant shall bear interest at the maximum amount allowed by
applicable law until repaid to Declarant in full.
7.3. Insurance for Village Common Areas.
The Village Association shall keep all improvements, facilities, and fixtures located
within the Village Common Areas insured against loss or damage by fire or other casualty for the
full insurable replacement value thereof(with reasonable deductibles and normal exclusions for
land, foundations, excavation costs and similar matters) and may obtain insurance against such
other hazards and casualties as the Village Association may deem desirable.
(a) Required Coverages. The Village Association, acting through its Board or
its duly authorized agent, shall obtain and continue in effect any or all of the following types of
insurance, as deemed necessary or advisable in the Board's business judgment and as may be
reasonably available: (i) blanket property insurance covering all insurable improvements within
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the Village Common Areas to the extent that the Village Association has responsibility for repair
or reconstruction in the event of a casualty, regardless of ownership; (ii) commercial general
liability insurance on the Village Common Areas of at least $1,000,000.00 (if available at
reasonable rates and upon reasonable terms) insuring against liability for bodily injury, death,
and property damage arising from the activities of the Village Association or with regards to
Village Common Areas, including, if obtainable, a cross liability endorsement insuring each
Member against liability to each other Member and the Village Association and vice versa; (iii)
directors and officers liability coverage; (iv) commercial crime insurance, including fidelity
insurance covering all Persons responsible for handling Village Association funds in an amount
at least equal to three months of Assessments, plus all reserve funds; (v) to the extent any
insurable improvements to Village Common Areas are within an "A" flood zone, flood insurance
in an amount equal to the lesser of 100% of the replacement costs of all insurable improvements
(if any) within the Village Common Areas or the maximum amount of coverage available under
the National Flood Insurance Program; and (vi) such additional insurance as the Board, in its
business judgment, determines advisable. Notwithstanding the foregoing, Declarant may obtain
insurance for multiple communities which it is developing and/or other projects under a blanket
policy instead of obtaining a separate policy for the Village Association, and charge a reasonable
portion of the cost thereof to the Village Association.
Premiums for Village Common Area insurance shall be an Operating Expense.
(b) Policy Requirements. The Village Association shall arrange for an annual
review of the sufficiency of its insurance coverage by one or more qualified Persons. All Village
Association policies shall provide for a certificate of insurance to be furnished to the Village
Association and, upon request, to each Member insured.
To the extent obtainable at reasonable rates, the insurance policy(ies) maintained
by the Village Association may contain provisions, or be accompanied by endorsements, for
agreed amount and inflation guard, demolition costs, contingent liability from operation of
building laws and increased costs of construction. All insurance policies shall contain standard
mortgagee clauses, if applicable.
The policies may contain a reasonable deductible which shall not be subtracted
from the face amount of the policy in determining whether the policy limits satisfy the
requirements of Section 7.3(a). In the event of an insured loss, the deductible shall be treated as
an Operating Expense in the same manner as the premiums for the applicable insurance
coverage. However, if the Board reasonably determines, after notice and an opportunity to be
heard in accordance with the Bylaws, that the loss is the result of the negligence or willful
misconduct of one or more Owners, their guests, invitees, or tenants, then the Board may assess
the full amount of such deductible against such Owner(s) and their Lot(s).
(c) Restoring Damaged Improvements. In the event of damage to or
destruction of Village Common Area or other property which the Village Association is
obligated to insure, the Board or its duly authorized agent shall file and adjust all insurance
claims and obtain reliable and detailed estimates of the cost of repairing or restoring the property
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to substantially the condition in which it existed prior to the damage, allowing for changes or
improvements necessitated by changes in applicable building codes.
(d) Waiver of Subrogation. As to each policy of insurance maintained by the
Village Association which will not be voided or impaired thereby, the Village Association
hereby waives and releases all claims against the Board, the Members, Declarant, any
predecessor Declarant, the Foundation, Foundation Declarant, and the directors, trustees,
officers, shareholders, attorneys, agents, and employees of each of the foregoing, with respect to
any loss covered by such insurance, whether or not caused by negligence of or breach of any
agreement by said Persons, but only to the extent that insurance proceeds are received in
compensation for such loss.
Damaged improvements on the Village Common Area shall be repaired or
reconstructed unless Members representing at least 80% of the total votes in the Village
Association and Declarant during the Development and Sale Period decide, within sixty (60)
days after the loss, not to repair or reconstruct. If either the insurance proceeds or estimates of
the loss, or both, are not available to the Village Association within such sixty (60) day period,
then the period may be extended until such funds or information are available. No Mortgagees
shall have the right to participate in the determination of whether the damage or destruction to
the Village Common Area shall be repaired or reconstructed.
If a decision is made not to restore the damaged improvements, and no alternative
improvements are authorized, the affected property shall be cleared of all debris and ruins and
thereafter shall be maintained by the Village Association in a neat and attractive condition
consistent with the Village-Wide Standard.
The Village Association shall deposit any insurance proceeds remaining after
paying the costs of repair or reconstruction, or after an agreed-upon settlement, in a capital
improvements account for the benefit of the Members. This is a covenant for the benefit of
Mortgagees and may be enforced by the Mortgagee of any affected Lot.
7.4. Enforcement.
(a) The Village Association, acting through the Board, may impose sanctions
for violation of the Village Documents, subject to the notice and hearing procedures set forth in
the Bylaws, as applicable. Such sanctions may include, without limitation:
(i) imposing reasonable monetary fines, which may accrue from the
date of notice (in the event that any occupant, guest or invitee of a Lot violates the Village
Documents and a fine is imposed, the fine shall first be assessed against the violator; however, if
the fine is not paid by the violator within the time period set by the Board, the Owner shall pay
the fine upon notice from the Board); and
(ii) suspending the vote attributable to the violating Owner's Lot; and
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(iii) suspending any services which the Village Association provides to
an Owner or the Owner's Lot if the Owner is more than thirty (30) days delinquent in paying any
assessment or other charge owed to the Village Association; and
(iv) without liability to any Person, precluding any contractor,
subcontractor, agent, employee or other invitee of an Owner who fails to comply with the terms
and provisions of Article IV and/or the Architectural Guidelines from continuing or performing
any further activities in the Village; and
(v) levying Benefited Assessments pursuant to Section 9.5 to cover
costs which the Village Association incurs to bring a Lot into compliance with the Village
Documents, including Legal Costs, or costs incurred as a consequence of the conduct of an
Owner or occupant of a Lot, their guests or invitees.
(b) In addition, but without limitation of the Village Association's other rights
and remedies, the Village Association, acting through the Board or its designee, may take the
following action to enforce the Village Documents without the necessity of compliance with the
notice and hearing procedures set forth in the Bylaws:
(i) requiring an Owner, at its own expense, to perform maintenance on
such Owner's Lot to complete any construction or modification approved pursuant to Article IV,
or to remove any structure, item or improvement on such Owner's Lot in violation of the Village
Documents and to restore the Lot to its previous condition; or
(ii) entering the property pursuant to the easement granted in Section
13.4 and exercising self-help to remove or cure a violating condition, or to complete any
construction or modification approved pursuant to Article IV which was begun and not
completed within the required time period, upon failure of an Owner to take action as required
pursuant to subsection (i) above within ten (10) days after the Board's mailing of written notice
to do so, and any such entry shall not be deemed a trespass (in the event of the occurrence of the
same or similar violating condition within 12 months, the Owner shall not be entitled to any
notice or opportunity to cure); or
(iii) exercising self-help in any situation (specifically including, but not
limited to, the towing of vehicles that are in violation of parking rules and regulations); and/or
(iv) bringing suit at law or in equity to enjoin any violation or to
recover monetary damages or both, subject to the procedures set forth in Article XVI, if
applicable.
(c) All remedies set forth in the Village Documents shall be cumulative of any
remedies available at law or in equity. In any action to enforce the Village Documents, if the
Village Association prevails, it shall be entitled to recover all Legal Costs incurred in any such
action.
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(d) The Village Association's decision to pursue enforcement action in any
particular case shall be left to the Board's discretion, except that the Board shall not be arbitrary
or capricious in taking enforcement action. Without limiting the generality of the foregoing
sentence, the Board may determine that, under the circumstances of a particular case:
(i) the Village Association's position is not strong enough to justify
taking any or further action; or
(ii) the covenant, restriction, or rule being enforced is, or is likely to be
construed as, inconsistent with applicable law; or
(iii) although a technical violation may exist or may have occurred, it is
not of such a material nature as to be objectionable to a reasonable person or to justify expending
the Village Association's resources; or
(iv) it is not in the Village Association's best interests, considering,
among other things, hardship, expense, or other reasonable criteria, to pursue enforcement
action.
Such a decision shall not be construed a waiver of the right of the Village Association to enforce
such provision at a later time under the same or other circumstances or preclude the Village
Association from enforcing any other covenant, restriction, or rule.
(e) The Village Association, by contract or other agreement, may enforce
applicable governmental regulations and permit a governmental authority to enforce ordinances,
rules, statutes, or laws within the Village for the benefit of the Village Association and its
Members.
(f) Declarant shall be entitled to exercise all of the rights and powers granted
to the Village Association under Sections 7.4(a)(v), 7.4(b), and 7.4(c), and shall be entitled to
recover all costs that it incurs in so doing from the responsible Owner to the same extent as the
Village Association would be entitled to recover them after notice and a hearing under Sections
7.4(a)(v) and Section 7.4(c).
(h) The covenants, conditions, restrictions and easements herein contained
shall be enforced by Declarant (so long as Declarant holds an equitable or legal interest in any
Home), the Village Association, any Owner and any Institutional Mortgagee holding a mortgage
on any portion of the Property in any judicial proceeding seeking any remedy recognizable at
law or in equity, including damages, injunction or any other form of relief against any person,
firm or entity violating or attempting to violate any covenant, restriction, easement or provision
hereunder. The failure by any party to enforce any such covenant, restriction, easement or
provision herein contained shall in no event be deemed a waiver of such covenant, restriction,
easement or provision or of the right of such party to thereafter enforce such covenant,
restriction, easement or provision. The prevailing party in any such litigation shall be entitled to
all costs thereof including, but not limited to, Legal Fees.
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7.5. Implied Rights; Board Authority.
The Village Association may exercise any right or privilege given to it expressly or by
reasonable implication by the Village Documents, and may take action reasonably necessary to
effectuate any such right or privilege. Except as otherwise specifically provided in the Village
Documents or by law, all of the Village Association's rights and powers may be exercised by the
Board without a vote of the membership.
The Board may institute, defend, settle, or intervene on the Village Association's behalf
in mediation, binding or non-binding arbitration, litigation, or administrative proceedings in
matters pertaining to the Village Common Areas, enforcement of the Village Documents, or any
other civil claim or action. However, the Board has no legal duty to institute litigation on behalf
of or in the name of the Village Association or the Members. In exercising the Village
Association's rights and powers, making decisions on the Village Association's behalf,
including, without limitation, deciding whether to file a lawsuit under any circumstances, and
conducting the Village Association's affairs, Board members and the Village Association's
officers are subject to, and their actions shall be judged in accordance with, the standards set
forth in the Bylaws.
Notwithstanding anything contained herein to the contrary, the Village Association shall
be required to obtain the approval of three-fourths (3/4) of the total votes (at a duly called
meeting of the Owners at which a quorum is present) prior to engaging persons or entities for the
purpose of suing, or making, preparing or investigating any lawsuit, or commencing any lawsuit
other than for the following purposes:
(a) the collection of Assessments;
(b) the collection of other charges which Owners are obligated to pay
pursuant to the Village Documents;
(c) the enforcement of the use and occupancy restrictions contained in the
Village Documents;
(d) the enforcement of Village Association rules;
(e) the enforcement of the Architectural Guidelines;
(f) the enforcement of a contract entered into by the Village Association with
vendors providing services to the Village Association;
(g) dealing with an emergency when waiting to obtain the approval of the
Owners creates a substantial risk of irreparable injury to the Village Common Areas, any
improvements or to Owner(s) (the imminent expiration of a statute of limitations shall not be
deemed an emergency obviating the need for the requisite vote of three-fourths [3/4] of the total
votes); or
(h) filing a compulsory counterclaim.
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7.6. Provision of Services to Lots.
The Village Association may provide, or provide for, services and facilities for all or any
of the Members, and may enter into contracts or agreements with other entities, including,
without limitation, Declarant or its Affiliates, to provide such services and facilities. The Board
may charge use or service fees for any such services and facilities, or may include the costs in
the Village Association's budget as an Operating Expense and assess it as part of the
Assessment, if provided to, or determined by the Board to be a benefit to, all Lots. By way of
example, such services and facilities might include landscape maintenance, pest control service,
security monitoring, caretaker, transportation and other services and facilities.
Nothing in this Section shall be construed as a representation by Declarant or the Village
Association as to what, if any, services or facilities shall be provided. In addition, subject to the
contract terms, the Board may modify or cancel existing contracts for services in its discretion,
unless the services are otherwise required by the Village Documents. Non-use of services or
facilities provided to Owners as an Operating Expense, shall not exempt any Owner from the
obligation to pay assessments for such services or facilities.
7.7. Relationships with Other Properties.
The Village Association may enter into contractual agreements or covenants to share
costs with any neighboring properties to contribute funds for, among other things, shared or
mutually beneficial property or services and/or a higher level of maintenance of Village
Common Areas.
7.8. Relationship with Governmental and Tax-Exempt Organizations.
The Village Association may enter into agreements or contracts with, or grant exclusive
and/or non-exclusive easements over the Village Common Area to, state or local governments,
public or private utility providers, and non-profit, tax-exempt organizations for the benefit of the
Village, the Village Association and the Members. The Village Association may contribute
money, real property (including, without limitation, Village Common Area), personal property,
or services to any such entity. Any such contribution may be an Operating Expense and included
as a line item in the Village Association's annual budget.
For the purposes of this Section, a "tax-exempt organization" shall mean an entity which
is exempt from federal income taxes under the Internal Revenue Code ("Code"), such as, but not
limited to, entities which are exempt from federal income taxes under Sections 501(c)(3) or
501(c)(4), as the Code may be amended from time to time.
7.9. Responsibilities Under Governmental Permits.
Declarant shall have the absolute and unconditional right in its sole discretion to assign,
delegate, or otherwise transfer to the Village Association any of its continuing obligations and/or
responsibilities under governmental permits and approvals with respect to the Village. The
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Village Association shall accept and assume such obligations and responsibilities without
condition or consideration. Such assignment or transfer and assumption shall be effective
without the consent of the Village Association, but upon Declarant's request, the Village
Association shall promptly execute any documents which Declarant requests to evidence the
assignment or transfer and assumption of such responsibilities. The Village Association shall
comply in all respects with the terms of and shall not undertake any activity inconsistent with,
such permits and approvals. The Village Association shall indemnify, defend and hold Declarant
harmless from any claims or losses arising out of the violation or failure to comply with any
permit(s), or out of the operation, maintenance or use of any improvement or facility authorized
by the permit(s), provided such claim or loss first occurs after the effective date of the
assignment, delegation, transfer (or tender of the assignment, delegation, or transfer, if
wrongfully refused by the Village Association).
7.10. Waterways; Water Level and Use.
With respect to any waterways now existing or which may hereafter be contained within
or adjoining the Village, only the CDD shall have the right to pump or otherwise remove any
water from such waterways for the purposes of irrigation or other use or to place any matter or
object in such waterways. No docks, moorings, pilings, boat shelters, or other structure shall be
erected on or over the waterways, except as may be erected or approved in writing by the
Foundation, Foundation Declarant, Declarant and/or the CDD (and following the termination of
the Class `B" Control Period, the CDD).
Only Declarant (and after termination of the Class `B" Control Period, the Village
Association) shall have the right to prescribe the schedule for watering of the landscaping in the
Village and Village Common Areas (subject to applicable legal requirements). Boating,
swimming, fishing, or any other recreational or entertainment activity or purpose is prohibited in
all Lakes, ponds, canals, streams, and waterbodies within or adjacent to the Property unless
specifically permitted by the Foundation.
All Owners acknowledge that the Property is located within the boundaries of the
SFWMD. Due to ground water elevations underneath the Property, priorities established by
governmental authorities and other causes outside of the reasonable control of Declarant, the
Village Association, the Foundation, Foundation Declarant and the CDD, water levels in the
waterways may rise and fall significantly due to among other things, fluctuations in ground water
elevations within the surrounding areas. Accordingly, Declarant, the Village Association, the
Foundation, Foundation Declarant and the CDD have no control over such water levels and/or
ground water elevations. Neither Declarant, the Village Association, the Foundation, Foundation
Declarant nor the CDD shall have any liability for aesthetic conditions, objectionable odors,
damage to plantings or direct or consequential damages of any nature caused by the fluctuation
of water levels or water quality. Each Owner, by acceptance of title to a Lot, hereby releases
Declarant, the Village Association, the Foundation, Foundation Declarant and the CDD from and
against any and all losses, claims, demands, liabilities, damages. costs and expenses of whatever
nature or kind (including, without limitation, attorneys' fees and courts costs at trial and all
appellate levels), related to, arising out of and/or resulting from water levels in the waterways.
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DECLARANT, THE VILLAGE ASSOCIATION, FOUNDATION DECLARANT, THE
FOUNDATION AND THE CDD SHALL NOT BE OBLIGATED TO PROVIDE
SUPERVISORY PERSONNEL, INCLUDING, BUT NOT LIMITED TO, LIFEGUARDS FOR
THE WATERWAYS. ANY INDIVIDUAL USING THE WATERWAYS SHALL DO SO AT
HIS/HER OWN RISK AND HEREBY HOLDS DECLARANT, THE VILLAGE
ASSOCIATION, FOUNDATION DECLARANT, THE FOUNDATION AND THE CDD
HARMLESS FROM AND AGAINST ANY CLAIM OR LOSS ARISING FROM SUCH USE.
EACH OWNER, BY THE ACCEPTANCE OF TITLE TO A LOT, ACKNOWLEDGES
THAT THE WATERWAYS ARE DEEP AND DANGEROUS. NEITHER DECLARANT, THE
VILLAGE ASSOCIATION, FOUNDATION DECLARANT, THE FOUNDATION, THE CDD,
NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, COMMITTEE MEMBERS,
EMPLOYEES, MANAGEMENT AGENTS, CONTRACTORS OR SUBCONTRACTORS
(COLLECTIVELY, THE "LISTED PARTIES") SHALL BE LIABLE OR RESPONSIBLE FOR
MAINTAINING OR ASSURING THE SAFETY, WATER QUALITY OR WATER LEVEL
OF/IN ANY WATERWAY WITHIN MUSSORIE VILLAGE AT FIDDLER'S CREEK®,
EXCEPT AS SUCH RESPONSIBILITY MAY BE SPECIFICALLY IMPOSED BY, OR
CONTRACTED FOR WITH, AN APPLICABLE GOVERNMENTAL OR QUASI-
GOVERNMENTAL AGENCY OR AUTHORITY. FURTHER, NONE OF THE LISTED
PARTIES SHALL BE LIABLE FOR ANY PROPERTY DAMAGE, PERSONAL INJURY OR
DEATH OCCURRING IN, OR OTHERWISE RELATED TO, ANY WATER BODY, ALL
PERSONS USING SAME DOING SO AT THEIR OWN RISK. ALL OWNERS AND USERS
OF ANY PORTION OF MUSSORIE VILLAGE AT FIDDLER'S CREEK® SHALL BE
DEEMED, BY VIRTUE OF THEIR ACCEPTANCE OF THE DEED TO OR USE OF, SUCH
PROPERTY, TO HAVE AGREED TO RELEASE THE LISTED PARTIES FROM ALL
CLAIMS FOR ANY AND ALL CHANGES IN THE QUALITY AND LEVEL OF THE
WATER IN SUCH BODIES. ALL PERSONS ARE HEREBY NOTIFIED THAT FROM
TIME TO TIME WILDLIFE MAY HABITAT OR ENTER INTO WATER BODIES WITHIN
OR NEARBY MUSSORIE VILLAGE AT FIDDLER'S CREEK® AND MAY POSE A
THREAT TO PERSONS, PETS AND PROPERTY, BUT THAT THE LISTED PARTIES ARE
UNDER NO DUTY TO PROTECT AGAINST, AND DO NOT IN ANY MANNER
WARRANT OR INSURE AGAINST, ANY DEATH, INJURY OR DAMAGE CAUSED BY
SUCH WILDLIFE.
No planting, fencing or other improvements or additions by the Owners within any lake
maintenance easement is permitted. No installation of sand or other materials intended to
simulate a beach shall be permitted along the Lakes or rear yards of Lake Lots. No removal or
damage to littoral or wetland plantings, if any, is permitted. Owners are prohibited from
disturbing or removing any vegetation within the Lakes.
7.11. Surface Water and Storm Water Management System.
The CDD shall be responsible for the maintenance, operation, repair, and replacement of
the Surface Water and Storm Water Management System contained within the Property, in
compliance with all governmental approvals and requirements of the SFWMD. Maintenance of
the Surface Water and Storm Water Management System(s) shall mean the exercise or practices
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which allow the systems to provide drainage, water storage, conveyance, or other surface water
or storm water management capabilities as permitted by the SFWMD and the County. Any
repair or reconstruction of the Surface Water and Storm Water Management System shall be as
permitted or, if modified, as approved by the SFWMD. The height, grade, and contour of such
embankments shall not be changed without the prior written consent of the Foundation, the
CDD, Declarant, the ARB, the SFWMD and/or the County.
ARTICLE VIII
COVENANT TO PAY ASSESSMENTS; ESTABLISHMENT OF LIENS;
COLLECTION OF ASSESSMENTS; COLLECTION BY DECLARANT;
CERTAIN RIGHTS OF DECLARANT AND INSTITUTIONAL MORTGAGEES
8.1. Affirmative Covenant To Pay Assessments.
In order to: (i) fulfill the terms, provisions, covenants, conditions, restrictions,
reservations, regulations, burdens, liens and easements contained in the Village Documents; and
(ii) maintain, operate and preserve the Village Common Area for the use, safety, welfare and
benefit of the Members and their family members, guests, invitees and tenants, there is hereby
imposed upon each Completed Lot and Incomplete Lot and each Completed Lot Owner and
Incomplete Lot Owner, the affirmative covenant and obligation to pay to the Village Association
commencing from and after the first conveyance of a Completed Lot from Declarant as
evidenced by the recordation of a deed in the Public Records of the County (in the manner herein
set forth) all Assessments as more fully set forth herein, which Assessments may include, but
may not be limited to, the Individual Lot Assessments, Benefited Assessments and Special
Assessments. Each Owner, by acceptance of a deed or other instrument of conveyance
conveying a Lot within the Property, whether or not it shall be so expressed in such deed or
instrument, shall be obligated and agrees to pay to the Village Association all Assessments in
accordance with the provisions of the Village Documents.
8.2. Operating Expenses.
The following expenses of the Village Association are hereby declared to be Operating
Expenses which the Village Association is obligated to assess and collect, and which the Owners
are obligated to pay as provided herein or as may be otherwise provided in the Village
Documents: (1) any and all taxes and tax liens which may be assessed or levied at any and all
times against the Village Common Area, or against any and all personal property or
Improvements thereon; (2) all charges levied for utilities providing services for the Village
Common Area or to Owners on a bulk basis, and any type of utility or any other type of service
charge which is not separately billed to an Owner; (3) the premiums on policies of insurance
including, but not limited to, liability and casualty insurance for the Village Common Area and
directors and officers liability insurance for the officers and directors of the Village Association;
(4) any sums necessary for the maintenance and repair of the Village Common Area and all
Improvements located thereon; (5) administrative and operational expenses; (6) any and all
expenses deemed to he Operating Expenses by the Village Association and/or under these
Village Covenants; and (7) any Assessments (as defined in the Foundation Declaration) levied
upon and payable by the Village Association pursuant to the Foundation Declaration. The Board
may, if it so determines, include reserves in the Village Association's annual budget. In
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addition, any expense which is required by these Village Covenants to be the matter of Special
Assessment shall not be deemed to be an Operating Expense. Expenses which are required to be
the matter of Special Assessment include, by way of example but not by way of limitation, the
following: the cost of reconstructing, replacing or improving the Village Common Area or any
portion thereof or Improvements thereon; any casualty loss affecting the Village Association or
the Village Common Area to the extent such loss exceeds the insurance proceeds, if any,
receivable by the Village Association as a result of such loss; any judgment against the Village
Association (or against a Director or Directors if and to the extent such Director is, or such
Directors are, entitled to be indemnified by the Village Association therefor pursuant to the
Articles) to the extent such judgment exceeds the insurance proceeds, if any, received by the
Village Association as a result of such judgment, or an agreement by the Village Association (or
such Director or Directors to whom indemnification is owed) to pay an amount in settlement of a
lawsuit against it (or such Director or Directors) to the extent such settlement exceeds the
insurance proceeds, if any, received by the Village Association as a result of such settlement
agreement; and Legal Fees incurred by the Village Association in connection with litigation
(whether incurred for the preparation, filing, prosecution or settlement thereof or otherwise),
except Legal Fees incurred by the Village Association in connection with the collection of
Assessments or other charges which Owners are obligated to pay pursuant to the Village
Documents or the enforcement of the use and occupancy restrictions contained in the Village
Documents, and except Legal Fees incurred for lawsuits not approved pursuant to Section 7.5.
The Operating Expenses with respect to the Village Common Area are payable by each
Completed Lot Owner to the Village Association notwithstanding the fact that Declarant may not
have as yet conveyed title to the Village Common Area to the Village Association.
8.3. Establishment of Liens.
Each Assessment against a Lot, together with Interest thereon and costs of collection,
including, but not limited to, Legal Fees, shall be the personal obligation of the Owner of such
Lot. Any and all Assessments made by the Village Association in accordance with the
provisions of the Village Documents with Interest thereon and costs of collection, including, but
not limited to, Legal Fees, are hereby declared to be a charge and continuing lien upon each Lot
against which each such Assessment is made. Said lien shall be effective only from and after the
time of the recordation amongst the Public Records of the County of a written, acknowledged
statement by the Village Association setting forth the amount due to the Village Association as
of the date the statement is signed. Upon full payment of all sums secured by that lien, the party
making payment shall be entitled to a satisfaction of the statement of lien in recordable form.
Notwithstanding anything to the contrary herein contained, except to the extent of any liability
set forth in Chapter 720 Florida Statutes, in the event a first Institutional Mortgagee of record
obtains a deed or title to a Lot as a result of foreclosure of its first mortgage or deed in lieu of
foreclosure, such acquirer of a deed or title, its successors or assigns, shall not be liable for the
share of Assessments pertaining to such Lot or chargeable to the former Owner thereof which
became due prior to the acquisition of a deed or title as a result of the foreclosure or deed in lieu
thereof, unless the Assessment against the Lot in question is secured by a claim of lien for
Assessments that is recorded prior to the recordation of the mortgage which was foreclosed or
with respect to which a deed in lieu of foreclosure was given.
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8.4. Collection of Assessments.
In the event any Owner shall fail to pay any Assessment, or installment thereof, charged
to such Owner within fifteen (15) days after the same becomes due, then the Village Association,
through its Board, shall have any and all of the following remedies to the extent permitted by
law, which remedies are cumulative and which remedies are not in lieu of, but are in addition to,
all other remedies available to the Village Association:
(a) To accelerate the entire amount of any Assessment for the remainder of
the calendar year notwithstanding any provisions for the payment thereof in installments.
(b) To advance on behalf of the Owner(s) in default funds to accomplish the
needs of the Village Association up to and including the full amount for which such Owner(s) is
(are) liable to the Village Association and the amount or amounts of monies so advanced,
together with Interest and all costs of collection thereof, including, but not limited to, Legal Fees,
may thereupon be collected by the Village Association from the Owner(s) and such advance by
the Village Association shall not waive the default.
(c) To file an action in equity to foreclose its lien at any time after the
effective date thereof as provided in Section 8.3 hereinabove. The lien may be foreclosed by an
action in the name of the Village Association in like manner as a foreclosure of a mortgage on
real property.
(d) To file an action at law to collect said Assessment plus Interest and all
costs of collection thereof, including, but not limited to, Legal Fees, without waiving any lien
rights or rights of foreclosure in the Village Association.
(e) To charge Interest on such Assessment from the date it becomes due, as
well as a late charge of Twenty-Five and No/100 ($25.00) Dollars or five percent (5%) of the past
due amount, whichever is greater, by the Village Association to defray additional collection costs.
(f) To suspend the right of the Owner(s) in default to vote on any matter on
which Owners have the right to vote if such Owner is delinquent in payment of assessments for
more than ninety (90) days.
8.5. Collection by Declarant.
In the event for any reason the Village Association shall fail to collect the Assessments,
Declarant shall at all times have the right (but not the obligation): (i) to advance such sums as
the Village Association could have advanced as set forth above; and (ii) to collect such
Assessments and, if applicable, any such sums advanced by Declarant, together with Interest and
costs of collection, including, but not limited to, Legal Fees.
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8.6. Rights of Declarant and Institutional Mortgagees to Pay Assessments and Receive
Reimbursement.
Declarant and any Institutional Mortgagee(s) shall have the right, but not the obligation,
jointly or individually, and at their sole option, to pay any of the Assessments which are in
default and which may or have become a charge against any Lot(s). Further, Declarant and any
Institutional Mortgagee shall have the right, but not the obligation,jointly or individually, and, at
their sole option, to pay insurance premiums or fidelity bond premiums or other required items of
Operating Expenses on behalf of the Village Association in the event the same are overdue and
when lapses in policies or services may occur. Declarant and any Institutional Mortgagee paying
overdue Operating Expenses on behalf of the Village Association will be entitled to immediate
reimbursement from the Village Association plus Interest and any costs of collection including,
but not limited to, Legal Fees, and the Village Association shall execute an instrument in
recordable form acknowledging such reimbursement obligation(s) and deliver the original of
such instrument to each Institutional Mortgagee who is so entitled to reimbursement and to
Declarant if Declarant is entitled to reimbursement.
ARTICLE IX
METHOD OF DETERMINING ASSESSMENTS
AND ALLOCATION OF ASSESSMENTS
9.1. Determining Amount of Assessments.
The total anticipated Operating Expenses for each calendar year shall be set forth in the
budget ("Budget") prepared by the Board as required under the Village Documents. Each
Completed Lot and Incomplete Lot shall be assessed its pro rata portion of the total anticipated
Operating Expenses, which shall be the "Individual Lot Assessment" as to each Lot. The
Individual Lot Assessment shall be based upon the level of service to each Lot and upon the state
of the Lot's development, with the Owners of Completed Lots paying the Operating Expenses on
a twenty to one ratio (20:1) compared to the Owners of Incomplete Lots as set forth below.
Therefore, the Completed Lot Owners and Incomplete Lot Owners shall share the payment of the
Operating Expenses on a ratio of twenty to one (20:1). The total anticipated Operating Expenses
(other than those expenses which are properly the subject of Special Assessment) shall be
divided by the total number of Completed Lots multiplied by twenty (20) plus the number of
Incomplete Lots, with the quotient thus arrived at being the "Individual Lot Assessment" for an
Incomplete Lot. Said quotient multiplied by twenty (20) shall be the Individual Lot Assessment
for a Completed Lot. The number of Completed Lots and Incomplete Lots shall be adjusted
quarterly, as needed, as hereinafter set forth. At such time as Declarant has conveyed all of the
Homes on all of the Lots, each Lot shall be a Completed Lot and the Individual Lot Assessment
shall be equal for each Lot. Notwithstanding anything in the Village Documents to the contrary,
any Assessment for Legal Fees incurred by the Village Association for lawsuits shall be deemed
an Operating Expense which is properly the subject of Special Assessment and not the subject of
an Individual Lot Assessment so long as approved pursuant to Section 9.3 except the Legal Fees
incurred by the Village Association in connection with the collection of assessments or other
charges which Owners are obligated to pay pursuant to the Village Documents or the
enforcement of the use and occupancy restrictions contained in the Village Documents.
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9.2. Assessment Payments.
Individual Lot Assessments shall be payable quarterly, in advance, on the first day of
January, April, July and October of each year, provided, however, at the Village Association's
option, Individual Lot Assessments may be payable monthly. Individual Lot Assessments, and
the quarterly or monthly installments thereof, may be adjusted from time to time, but no less
frequently than quarterly, by the Board to reflect changes in the number and status of Completed
Lots (thus apportioning all such Assessments and installments thereof among all Completed Lots
at the time such installment is due) or changes in the Budget or in the event the Board determines
that an Assessment or any installment thereof is either less than or more than the amount actually
required.
9.3. Special Assessments.
"Special Assessments" include, in addition to other Assessments designated as Special
Assessments in the Village Documents and whether or not for a cost or expense which is
included within the definition of"Operating Expenses," those Assessments which are levied for
capital improvements which include the costs (whether in whole or in part) of constructing or
acquiring Improvements for, or on, the Village Common Area or the cost (whether in whole or in
part) of reconstructing or replacing such Improvements. In addition, Special Assessments may
be levied against particular Lots to the exclusion of others. Notwithstanding anything to the
contrary herein contained, it is recognized and declared that Special Assessments shall be in
addition to, and are not part of, any Individual Lot Assessment. Any Special Assessments
assessed against Lots and the Owners thereof shall be paid by such Owners in addition to any
other Assessments and shall be assessed in the same manner as the Individual Lot Assessment.
Special Assessments shall be paid in such installments or in a lump sum as the Board shall, from
time to time, determine. Notwithstanding the foregoing, the levying of any Special Assessment
after Turnover shall require the affirmative assent of at least two-thirds (2/3) of the vote of all
Members at a meeting called and held in accordance with the Bylaws, however, and
notwithstanding anything in these Village Covenants to the contrary, the Board acting alone and
without the consent of Members may levy Special Assessments for the following: (a) repair,
reconstruction, or replacement of damaged or destroyed Improvements previously existing on
Village Common Area (including, without limitation, landscaping), (b) capital improvements
necessary or desirable for the sole purpose of preservation of, or prevention of damage to,
Village Common Area, or (c) uprighting or removing any fallen or dislodged trees as set forth in
Section 5.1(d) above; which shall not require such affirmative assent of at least two-thirds (2/3)
of the votes of all Members. Prior to the Turnover, a Declarant controlled Board may not levy a
Special Assessment unless a majority of the Members (other than Declarant) has approved the
Special Assessment by a majority vote at a duly called special meeting of the Members at which
a quorum is present.
9.4. Liability of Owners of Individual Lot Assessments.
By the acceptance of a deed or other instrument of conveyance of a Lot in the Property,
each Owner thereof acknowledges that each Lot and the Owners thereof are jointly and severally
liable for their own Individual Lot Assessments and their applicable portion of any Special
Assessments, as well as for any and all other Assessments for which they are liable, as provided
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for herein. Such Owners further recognize and covenant that they are jointly and severally liable
with the Owners of all Lots for the Operating Expenses (subject to any specific limitations
provided for herein such as, but not limited to, the limitation with respect to matters of Special
Assessment and the limitations on the liability of Institutional Mortgagees and their successors
and assigns). Accordingly, subject to such specific limitations, it is recognized and agreed by
each Owner, for such Owner and such Owner's heirs, executors, successors and assigns, that in
the event any Owner fails or refuses to pay such Owner's Individual Lot Assessment or any
portion thereof, or such Owner's respective portion of any Special Assessment or any other
Assessment, then the other Owners may be responsible for increased Individual Lot Assessments
or Special Assessments or other Assessments due to the nonpayment by such other Owner, and
such increased Individual Lot Assessment or Special Assessment or other Assessment can and
may be enforced by the Village Association and Declarant in the same manner as all other
Assessments hereunder as provided in the Village Documents.
9.5. Benefited Assessments.
The Village Association may levy "Benefited Assessments" against one or more
particular Lots as follows:
(a) to cover the costs, including, without limitation, overhead and
administrative costs, of providing services to a Lot upon request of the Owner pursuant to any
menu of special services which the Village Association may offer (which might include the items
identified in Section 7.6) or pursuant to a Supplemental Declaration. Benefited Assessments for
special services may be levied in advance of the provision of the requested service;
(b) to cover costs incurred in bringing a Lot into compliance with the Village
Documents, or costs incurred as a consequence of the conduct of the Owner or occupants of the
Lot, their agents, contractors, employees, licensees, invitees, or guests, including, without
limitation, Legal Costs, subject to the limitations of Section 7.4, as applicable;
(c) to cover the costs and expenses charged to the Village Association
pursuant to any contract for Lot landscape maintenance.
(d) to cover the costs and expenses charged to the Village Association for
irrigation of the Lot.
9.6. Budgeting for Reserves.
The Board may prepare and periodically review a reserve budget for the Village
Common Area which take into account the number and nature of replaceable assets, the expected
life of each asset, and the expected repair or replacement cost of capital items under each budget.
The Board may include in the Operating Expense budget adopted pursuant to Section 9.1, a
contribution to fund reserves in an amount which the Board, in the exercise of its business
judgment, deems sufficient to meet the projected needs under each budget with respect to both
amount and timing by annual contributions over the budget period.
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Reserve funds, if collected, shall be held in a separate account or accounts from the
operating and other funds of the Village Association.
The reserve funds held in each account may be expended only for major maintenance,
repair, or replacement of those assets covered by the reserve budget pursuant to which they were
collected. Subject to such limitation, the Board may adopt resolutions regarding the expenditure
of any reserve funds including, without limitation, policies designating the nature of assets for
which reserve funds may be expended. Neither the Village Association membership nor the
Board shall adopt, modify, limit, or expand such policies without Declarant's prior written
consent during the Development and Sale Period.
9.7. Assessments Payable by Declarant; Declarant Subsidies.
Each Owner acknowledges and agrees that because Individual Lot Assessments and
Special Assessments are allocated as set forth in this Article IX above, it is possible that the
Village Association may collect more or less than the amount budgeted for Operating Expenses
in the Budget of the Village Association. Except as may be limited by applicable law, Declarant
has the right (at its sole election) to: (i) pay Assessments for the Lots owned by Declarant in the
same manner as other Owners, (ii) to be excused from paying its share of Assessments related to
the Lots owned by Declarant and pay the Deficit (as hereinafter defined), and/or (iii) subsidize
the Budget of the Village Association as provided below by making voluntary contributions in
amounts determined by Declarant in Declarant's sole discretion.
During the period of time that Declarant is offering Homes for sale in Mussorie Village at
Fiddler's Creek® and/or based on the number of Homes owned by Owners other than Declarant,
Declarant may seek to keep Assessments lower than they otherwise be by subsidizing the Budget
of the Village Association by making voluntary contributions in amounts determined by
Declarant. The amount of any such voluntary contributions may vary from time to time or may
be discontinued and recommenced by Declarant from time to time. The determination to
subsidize the Budget of the Village Association, the amount of any such voluntary contribution,
the discontinuance and/or recommencement of any such voluntary contributions shall all be
made by Declarant in Declarant's sole discretion and in no event shall Declarant have any
obligation whatsoever to make any such voluntary contributions. Each Owner shall be solely
responsible to review the Budget of the Village Association then in effect to determine if and to
what extent Declarant is making any voluntary contributions to subsidize the Budget and thus
lower the Assessments payable by the Owners that would otherwise be higher based on the
Operating Expenses of the Village Association.
9.8. Working Fund Contribution.
Each Owner of a Lot, other than Declarant, shall pay to the Village Association a
Working Fund Contribution at the time legal title is conveyed to such Owner. The Working
Fund Contribution shall be an amount equal to one months' assessment for each Lot and each
subsequent conveyance of the Lot. The amount of the Working Fund Contribution is subject to
change in the Board's sole discretion. The purpose of the Working Fund Contribution is to
insure that the Village Association will have cash available for initial start-up expenses, to meet
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unforeseen expenditures and to acquire additional equipment and services deemed necessary or
desirable by the Board. Working Fund Contributions are not advance payments of Individual
Lot Assessments and shall have no effect on future Individual Lot Assessments, nor will they be
held in reserve. To further ensure that the Village Association will have sufficient cash available
to pay for start-up expenses, Operating Expenses and other expenses, Declarant may from time
to time advance to the Village Association the Working Fund Contribution applicable to any
Lot(s) prior to the time legal title to such Lot(s) is conveyed to the Owner(s) thereof. In the
event Declarant advances the Working Fund Contribution applicable to any Lot, then, at the time
legal title to such Lot is conveyed to the Owner thereof, the Working Fund Contribution to be
paid by such Owner to the Village Association pursuant to this Section 9.8 shall be paid directly
to Declarant in reimbursement of the advance, instead of to the Village Association. Working
Fund Contributions (whether paid by Owner or advanced by Declarant) may also be used to
offset Operating Expenses. •
9.9. Waiver of Use.
No Owner, other than Declarant, may exempt himself from personal liability for
Assessments duly levied by the Village Association. No Owner may release the Lot owned by
such Owner from the liens and charges hereof either by waiver of the use and enjoyment of the
Village Common Area and the facilities thereon or by abandonment of such Owner's Home.
ARTICLE X
REMOVAL OF PROPERTY
Declarant reserves the right to amend these Village Covenants from time to time prior to
Turnover, in its sole discretion, without the prior notice or consent of any Person to remove any
portions of the Property then owned by Declarant (or any affiliate of Declarant) or by the Village
Association from the provisions of these Village Covenants if, and to the extent, such property
was originally subjected to these Village Covenants in error, or if Declarant changes the
development plan for the Property; provided, however, that Declarant, concurrently with such
removal, shall grant and/or confirm such easements as are necessary for maintenance and/or
construction of those Lots theretofore conveyed by Declarant.
ARTICLE XI
DEVELOPMENT PLAN
1 1.1. Mussorie Village at Fiddler's Creek®.
Mussorie Village at Fiddler's Creek® is a planned residential community. It is presently
anticipated that Mussorie Village at Fiddler's Creek®, when fully developed, will be comprised
of fifty-four (54) Homes and the property encompassing the Village Common Area, as more
particularly defined by these Village Covenants. The property declared hereunder is described
on Exhibit "A" attached hereto, and may be reduced in size as described in Article X herein.
Notwithstanding the foregoing, however, Declarant reserves the right to modify its plan of
development of Mussorie Village at Fiddler's Creek® (including, without limitation, the right to
modify the site plan and the right to change the Home product types and reduce the number of
Homes to be constructed within Mussorie Village at Fiddler's Creek® and the right to add
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additional Village Common Area) and/or the right to withdraw land from Mussorie Village at
Fiddler's Creek® in its sole and absolute discretion. Therefore, in the event Declarant modifies
its plan of development of Mussorie Village at Fiddler's Creek® and/or withdraws land from
Mussorie Village at Fiddler's Creek®, the number of Lots, the layout of Lots and/or the size of
Lots within Mussorie Village at Fiddler's Creek® may change and as a result of any changes in
the number of Lots, the Assessments required to be paid pursuant to these Village Covenants
may increase or decrease as appropriate. Declarant's general plan of development further
contemplates that such Homes shall be whatever types of structures Declarant may choose which
are in conformance with applicable governmental rules and regulations. Declarant's general plan
of development of Mussorie Village at Fiddler's Creek® may also include whatever facilities
and amenities Declarant considers in its sole judgment to be appropriate to Mussorie Village at
Fiddler's Creek®, as well as any changes thereto.
Declarant expressly reserves the right as to the property comprising Mussorie Village at
Fiddler's Creek® to (i) commence construction and development of Mussorie Village at
Fiddler's Creek® if and when Declarant desires; (ii) develop Mussorie Village at Fiddler's
Creek® upon such timetable as Declarant, in its sole discretion, chooses; and (iii) modify the
Development Plan of Mussorie Village at Fiddler's Creek® in such manner as it, in its sole
discretion, chooses. Nothing contained herein shall be construed as obligating Declarant to
construct Mussorie Village at Fiddler's Creek® according to the present Development Plan.
11.2. Village Common Area.
The Village Common Area within Mussorie Village at Fiddler's Creek® includes the
Landscape Buffer Easements ("L.B.E.") and Sign Easements ("S.E.") as shown on the Plat. The
Village Common Area shall be used for landscaping and signs. Village Common Area may not
be altered, modified, removed or replaced by Owners or their family members, guests, invitees or
lessees.
The Village Association and each Owner acknowledges and agrees that Declarant has or
will install trees, shrubs, plants and other landscaping consistent with a landscape plan that meets
or exceeds the requirements of the applicable governmental requirements and that from the time
of such initial installation, such trees, shrubs, plants and other landscaping may mature, expand,
decay and/or die from time to time. After Turnover, the Village Association shall have no claim
whatsoever against Declarant and hereby releases any and all claims against Declarant for any
trees, shrubs, plants and other landscaping that has decayed or died regardless of the reasons
therefor so long as all of the remaining trees, shrubs, plants and other landscaping, when looked
at as a whole, exceed the minimum requirements of the applicable governmental requirements
for Mussorie Village at Fiddler's Creek®.
1 I.3. Fiddler's Creek®.
Foundation Declarant is the developer of Fiddler's Creek®. The Foundation Declaration
sets forth Foundation Declarant's plan for development of Fiddler's Creek®. Foundation
Declarant plans to develop Fiddler's Creek® as a large-scale master planned multi-phase
community comprising residential, recreational and commercial uses, and the property
encompassing the "Common Areas" and "Recreational Property" (as defined in the Foundation
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Declaration). Certain developments such as single family or condominium may be grouped
together as a Village. The Foundation is responsible for the maintenance of the Common Areas
and Recreational Property. Portions of Fiddler's Creek® are developed around and in
conjunction with recreation-type clubs. These clubs may be public, private, equity or non-equity
which may own and operate tennis, golf, swimming and social functions. The ownership of a
Lot does not confer any use rights to the facilities or membership in a club except as otherwise
stated herein and in the Foundation Documents. Mussorie Village at Fiddler's Creek® is one of
the Villages in Fiddler's Creek® as more particularly described in the Foundation Declaration.
11.4. The Tarpon Club and The Country Clubs at Fiddler's Creek®.
The Tarpon Club and The Country Clubs at Fiddler's Creek® (collectively hereinafter
referred to as the "Country Clubs") are private clubs within Fiddler's Creek®, comprising golf
courses, restaurants, pro-shops, and uses ancillary or customary thereto, which are available for
use only by the members of such Country Clubs. The Country Clubs are not part of the Property
and each Owner by accepting title to a Lot thereby acknowledges that ownership of a Lot in
Mussorie Village at Fiddler's Creek® does not give any vested right or easement, prescriptive or
otherwise, to use the Country Clubs or the Country Clubs' facilities now or hereafter constructed
within Fiddler's Creek®, and does not grant any ownership, membership or use interest therein.
The facilities of the Country Clubs are developed at the discretion of the Country Clubs'
owner(s). The Country Clubs' owner(s) have the exclusive right to determine from time to time,
in their sole discretion and without notice or approval of any change, how and by whom these
facilities shall be used, if at all.
Every Owner, by acceptance of a deed to a Lot, acknowledges that the Country Clubs,
which are not part of Mussorie Village at Fiddler's Creek®, are privately owned and that the
owner(s) of the Country Clubs retain the unconditional right to close, sell, lease or otherwise
restrict access to such golf course and related facilities. The Country Clubs are not, and are not
intended to be, part of the Recreational Property or Common Areas of the Foundation. The
Country Clubs shall be made available for use on such terms and conditions and payment of such
fees and charges as are established by the owner(s) of the Country Clubs from time to time. By
accepting title to a Lot, the Owners acknowledge that, except as set forth herein, no other
representations or warranties, either verbal or written, have been or are made regarding the
continuing ownership of or use rights in any golf course, or that any golf course is owned by or
will become Common Area or Recreational Property of the Foundation, property of the Village
Association, or common area or common elements of any other homeowners association or the
property thereof.
Declarant is not the developer of the Country Clubs. Declarant makes no representation
or warranty regarding the Country Clubs nor any of the documents and instruments associated
with the Country Clubs.
11.5. Fiddler's Creek® Community Development District 2.
Foundation Declarant has established a uniform community development district, as
defined in Chapter 190, Florida Statutes, known as Fiddler's Creek® Community Development
District 2 (hereinafter "CDD"), which includes the Property and which may include all or a
portion of Fiddler's Creek®, and may also include property in addition to Fiddler's Creek®. The
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CDD will provide certain urban community development services and will have the authority to
levy and collect fees, rates, charges, taxes and assessments to pay for, finance and provide such
services. The CDD will impose taxes and/or assessments on Fiddler's Creek® through a special
taxing district. These taxes will pay for the construction, operation, and/or maintenance costs of
certain public facilities within the CDD and will be set annually by the governing board of the
CDD. These taxes and assessments are in addition to county and all other taxes and assessment
provided for by law. These fees, rates, charges, taxes and assessments will either appear on the
annual real estate tax bill for each Owner in which case they will be payable directly to the
Collier County Tax Collector or they will appear on a separate bill issued to each Owner by the
CDD. All taxes of the CDD shall constitute a lien upon those portions of Fiddler's Creek®
owned by Owners. The CDD shall have the power to issue any types of bonds permitted by
Chapter 190, Florida Statutes.
11.6. Taxes and Assessments..
COMMUNITY DEVELOPMENT DISTRICTS ("DISTRICTS") ARE SPECIAL
SINGLE PURPOSE LOCAL GOVERNMENTAL AGENCIES CREATED BY GENERAL
LAW AND ESTABLISHED BY RULE TO PROVIDE INFRASTRUCTURE TO
COMMUNITY DEVELOPMENTS. THE DISTRICTS HAVE THE POWER TO MANAGE
THROUGH PLANNING, IMPLEMENTATION, CONSTRUCTION AND MAINTENANCE
OF CERTAIN SYSTEMS, FACILITIES AND SERVICES CONSTITUTING BASIC
INFRASTRUCTURE TO THE LANDS WITHIN THE COMMUNITY DEVELOPMENT.
THE DISTRICTS ALSO HAVE THE POWER TO FINANCE THESE MANAGEMENT
FUNCTIONS, INCLUDING THE PAYMENT FOR THE CONSTRUCTION, OPERATION
AND MAINTENANCE OF SUCH BASIC INFRASTRUCTURE, THROUGH THE LEVY OF
CERTAIN AD VALOREM TAXES AND NON-AD VALOREM SPECIAL ASSESSMENTS
CONSTITUTING LIENS ON THE PROPERTY AGAINST WHICH LEVIED. THESE
LEVIES ARE SET ANNUALLY BY THE GOVERNING BOARD OF SUPERVISORS OF
THE DISTRICTS. THESE LIENABLE LEVIES MAY BE LISTED SEPARATELY ON THE
OFFICIAL TAX NOTICE ("BILL") MAILED EACH NOVEMBER BY THE TAX
COLLECTOR WHICH ALSO LISTS AND TOTALS ALL OTHER AD VALOREM TAXES
AND NON-AD VALOREM SPECIAL ASSESSMENTS WHICH MAY BE LEVIED BY THE
COUNTY AND OTHER GOVERNMENTS AS PROVIDED FOR BY LAW. THE
MEETINGS OF THE BOARD OF SUPERVISORS OF THE DISTRICT ARE PUBLIC
NOTICED MEETINGS PURSUANT TO GOVERNMENT-IN-THE-SUNSHINE LAW.
ARTICLE XII
ADDITIONAL RIGHTS RESERVED TO DECLARANT
12.1. Marketing and Sales Activities.
Notwithstanding anything in the Village Documents to the contrary, Declarant, its
Affiliates, and their assigns and Builders and their Affiliates may construct, maintain, and
operate upon portions of the Village Common Area and property they own, such facilities,
activities, and things as, Declarant, in its discretion, may deem to be required, convenient, or
incidental to the construction or sale of Lots, including Declarant's rights to maintain a sales
office. Such permitted facilities, activities, and things shall include, without limitation, business
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offices, signs, flags (whether hung from flag poles or attached to a structure), model homes, sales
offices, construction offices, service offices, holding or sponsoring special events, and exterior
lighting features or displays. In addition, if reasonably required, convenient, or incidental to
construction or sales activities, Declarant, Declarant's Affiliates, and their assigns, and
authorized Builders may park vehicles in areas other than garages or driveways, including,
without limitation, on streets. By Owner's acceptance of a deed for a Lot, such Owner agrees
and acknowledges that: (i) Declarant and/or any of Declarant's affiliates have a right to operate a
sales office during the Development and Sale Period; (ii) Declarant, its successors, assigns,
employees, contractors, sub contractors and potential purchasers shall have access to the
Property at all times and the Village Association and the Owners shall not impede any such
access and any gate system installed shall remain open during construction and sales hours to
allow Declarant, its successors, assigns, employees, contractors, sub contractors and potential
purchasers access to the Property; (iii) Declarant and its nominees shall have the right to enter
into and transact on the Property any business necessary to consummate the sale, lease or
encumbrance of Lots or real property within Mussorie Village at Fiddler's Creek®, including,
but not limited to, the right to maintain models and a sales and/or leasing office, a construction
office and/or a service office, place signs, employ sales, leasing, construction and service
personnel, use the Property and show homes, and Declarant further reserves the right to make
repairs to the Property and to carry on construction activity for the benefit of the Property, and
Declarant, and its nominees, may exercise the foregoing rights without notifying the Village
Association. Any such models, sales and/or leasing office, construction office, service office,
signs and any other items pertaining to such sales, leasing, construction or service efforts shall
not be considered a part of the Property and shall remain the property of Declarant; (iv)
Declarant shall have the right to enter upon the Property (including, without limitation, all
drainage easements) to final-out and/or close-out any and all approvals, permits, orders,
conditions and/or requirements that have been issued or imposed by any governmental entity in
connection with the development and construction of Mussorie Village at Fiddler's Creek® and
all improvements therein for Declarant to comply and adhere to the same, and such rights shall
survive the date of Turnover and continue for such period of time as is necessary for Declarant to
fully comply with all such governmentally issued approvals, permits, orders, conditions and/or
requirements. Without limiting the generality of the foregoing, in exercising any such rights,
Declarant shall have the right to remove and/or relocate any and all items (including, without
limitation, landscape materials, fences and/or other improvements) that may be required to be
removed and/or relocated to final-out and/or close-out any and all such approvals, permits,
orders, conditions and/or requirements; and (v) Owners shall not interfere in any manner
whatsoever in the sales process by Declarant and/or any of its affiliates, including the carrying of
signs or other types of demonstrations in Mussorie Village at Fiddler's Creek® or any public
right-of-way adjacent to the Property. Each Owner acknowledges that any such activities
interfere with the quiet enjoyment of Mussorie Village at Fiddler's Creek® by the other Owners,
are detrimental to the value of the homes within Mussorie Village at Fiddler's Creek®, and
interfere with Declarant's ability to conduct its business.
This Section 12.1 may not be suspended, superseded or modified in any manner by any
amendment to these Village Covenants unless such amendment is consented to in writing by
Declarant.
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For the term of these Village Covenants, the Village Common Area is not for the use and
enjoyment of the public, but is expressly reserved for the private use and enjoyment of
Declarant, the Village Association, and the Owners, and their family members, guests, invitees
and lessees, but only in accordance with these Village Covenants.
(a) The administration, management, operation and maintenance of the
Village Common Areas shall be the responsibility of the Village Association, as provided herein
and in the Mussorie Village at Fiddler's Creek® Documents.
(b) Declarant hereby reserves the right to construct and/or operate a "model
row(s)" in Mussorie Village at Fiddler's Creek®. The "model row(s)" may contain models for
Mussorie Village at Fiddler's Creek® or other communities, as Declarant and/or any of
Declarant's affiliates may so determine, in their sole discretion. The "model row(s)" may also
contain parking, landscaping and fencing across streets, drives, and/or roadways as Declarant
may determine in its sole discretion. In the event that Declarant and/or any of Declarant's
affiliates constructs a "model row(s)" in Mussorie Village at Fiddler's Creek®, such "model
row(s)" may be used for such period of time that Declarant and/or any of Declarant's affiliates
determines to be necessary in its sole judgment. By Owner's acceptance of a deed for a Lot in
Mussorie Village at Fiddler's Creek®, such Owner agrees and acknowledges that: (i) Declarant
and/or any of Declarant's affiliates have a right to construct and/or operate a "model row(s)"; (ii)
Declarant and/or any of its affiliates have an easement over Mussorie Village at Fiddler's
Creek® for ingress and egress to and from the "model row(s)" and to use and show the models to
prospective purchasers in Mussorie Village at Fiddler's Creek® or other communities being
developed by Declarant and/or any of Declarant's affiliates, as long as such "model row(s)"
exists; and (iii) Owners shall not interfere in any manner whatsoever in the sales process by
Declarant and/or any of its affiliates, including the carrying of signs or other types of
demonstrations in Mussorie Village at Fiddler's Creek® or any public right-of-way adjacent to
the Property. Each Owner acknowledges that any such activities interfere with the quiet
enjoyment of Mussorie Village at Fiddler's Creek® by the other Owners, are detrimental to the
value of the homes within Mussorie Village at Fiddler's Creek®, and interfere with Declarant's
ability to conduct its business.
12.2. Right to Develop.
Declarant and its Affiliates, and their respective employees, agents, and designees, shall
have a right of access and use and an easement over, upon, and under all of the Village Common
Area for the purpose of making, constructing, and installing such improvements to the Village
Common Area and the Property as Declarant deems appropriate in Declarant's discretion.
Each Owner acknowledges that the Village is a planned community, the development of
which is likely to extend over a number of years, and agrees and consents to all changes in (a)
uses or density of Lots or Homes within the Village, or(b) the Development Plan.
Each Owner acknowledges and agrees that the present plans and themes for the Village's
development may change and that such Owner has not relied on any representation, warranty, or
assurance by any Person (a) that any Lots or other property or facilities will be added, modified,
or eliminated within the Village; or (b) as to the financial or other impact of such action on any
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Owner. Each Owner acknowledges and agrees that it is not entitled to rely upon and has not
received or relied upon any representations, warranties, or guarantees whatsoever as to: (a) the
design, construction, completion, development, use, benefits, or value of property within the
Village; (b) the number, types, sizes, prices, or designs of any residential or non-residential
structures or improvements built or to be built in any part of the Village; or (c) as to the use or
development (current or future)of any property adjacent to or within the vicinity of the Village.
12.3. Right to Approve Changes in the Village Standards.
No amendment to or modification of any Use Restrictions, rules, or the Architectural
Guidelines during the Development and Sale Period shall be effective without prior notice to and
the written approval of Declarant.
12.4. Right to Transfer or Assign Declarant Rights.
Any or all of Declarant's rights and obligations set forth in these Village Covenants or
the Bylaws may, except to the extent restricted by Florida law, be transferred, in whole or in part,
from time to time, to other Persons. No such transfer or assignment shall be effective unless it is
in a recorded instrument signed by Declarant. Declarant may allow other Persons to exercise, on
a one-time or limited basis, any Declarant right without transferring the entire right. In such case,
a recorded instrument is not required.
12.5. Easement to Inspect and Right to Correct.
Declarant reserves for itself and others it may designate, from time to time, the right to
inspect, monitor, test, redesign, modify and correct any structure, improvement, or condition
which may exist on any portion of the Village, including Lots, and a nonexclusive easement of
access throughout the Village to the extent reasonably necessary to exercise such right. Except in
an emergency, entry onto a Lot shall be only after reasonable notice to the Owner in accordance
with Section 13.4 below and no entry into a Home or other structure on a Lot shall be permitted
without the Owner's consent, which consent shall not unreasonably be withheld, conditioned, or
delayed, unless in the case of emergency as provided in Section 13.4 below. The failure or
refusal to permit reasonable access to the Lot for the purposes contemplated under this paragraph
shall excuse Declarant or its designee from responsibility for repairs or damages relating to
defective workmanship or materials. The Person exercising this easement shall promptly repair,
and pay for, any resulting damage. The provisions of this paragraph do not impose any
obligation on Declarant or any other Person to perform any such inspection, monitoring, testing,
redesigning, modification, or correction.
In addition, Declarant hereby has, shall have and hereby reserves the right to enter upon
the Lots, Village Common Areas and other portions of the Mussorie Village at Fiddler's Creek®
(including, without limitation, all drainage, landscape buffer, sign and utility easements, whether
located on a Lot or Village Common Areas) in order for Declarant to final-out and/or close-out
any and all approvals, permits, orders, conditions and/or requirements that have been issued or
imposed by any governmental entity in connection with the development and construction of
Mussorie Village at Fiddler's Creek® and all Improvements therein, and for Declarant to comply
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and adhere to the same, and such rights shall survive the date of Turnover and continue for such
period of time as is necessary for Declarant to fully comply with all such governmentally issued
approvals, permits, orders, conditions and/or requirements. Without limiting the generality of
the foregoing, in exercising any such rights, Declarant shall have the right to remove and/or
relocate any and all items (including, without limitation, landscape materials, fences and/or other
Improvements) that may be required to be removed and/or relocated to final-out and/or close-out
any and all such approvals, permits, orders, conditions and/or requirements without
compensation to the Village Association or the Owners. This Section 12.5 may not be
suspended, superseded or modified in any manner by any amendment to these Village Covenants
unless such amendment is consented to in writing by Declarant.
12.6. Right to Notice of Design or Construction Claims.
No Person shall retain an expert for the purpose of inspecting the design or construction
of any structures or improvements within the Village in connection with or in anticipation of any
potential or pending claim, demand, or litigation involving such design or construction unless
Declarant has been first notified in writing and given an opportunity to meet with the property
Owner and conduct an inspection.
12.7. Termination of Rights.
Rights granted under this Article shall terminate upon the earlier of (a) the period
specified in the particular Section, if any; (b) 25 years from the date these Village Covenants are
recorded; or (c) Declarant's recording of a statement that all sales and marketing activity has
ceased. Thereafter, Declarant may continue to use the Village Common Areas for the purposes
stated in this Article only pursuant to a rental or lease agreement between Declarant and the
Village Association which provides for rental payments based on the fair market rental value of
any such portion of the Village Common Areas. Notwithstanding the above, Declarant reserves
for itself and its Affiliates a perpetual, nonexclusive easement of access to and use of the Village
Common Areas in connection with the marketing and sale of other properties in order to show
the Village as an example of Declarant's projects. This Article shall not be amended without
Declarant's prior written consent.
ARTICLE XIII
EASEMENTS
13.1. Easements in Village Common Area.
Declarant grants to the Village Association an easement of use and access to the Village
Common Area for the Village Association to maintain and repair the Village Common Area.
13.2. Easements of Encroachment.
Declarant grants easements of encroachment, and for maintenance and use of any
permitted encroachment, between each Lot and any adjacent Village Common Area and between
adjacent Lots. Such easement shall permit encroachment only by a structure or fixture (i) which
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has been built by a Builder or approved in accordance with Article IV of these Village
Covenants, and (ii) which is unintentionally constructed on another's property. An encroachment
easement shall not exist if the encroachment results from willful and knowing conduct on the
part of, or with the knowledge and consent of, the Person claiming the benefit of such easement.
13.3. Easements for Utilities, Etc.
(a) Installation and Maintenance. Declarant reserves for itself, its successors
and assigns, so long as Declarant or any Declarant Affiliate owns any property in the Village
and/or Declarant is conducting its activities during the Development and Sale Period, and grants
to the Village Association, subject to Declarant's rights under Sections 12.1, 12.2 and 12.5,
perpetual, non-exclusive easements throughout the Village (but not through a structure) to: (i)
install utilities and infrastructure to serve the Village, including, without limitation, water, sewer,
telephone, electric, gas, irrigation, cable and other systems for sending and receiving data and/or
other electronic signals, drainage structures, facilities and systems, and security and similar
systems; (ii) install walkways, pathways and trails, curb cuts, driveways and paved areas, street
lights, and signage on property which Declarant or the Village Association owns or within public
rights-of-way or easements reserved for such purpose on a Plat; (iii) inspect, maintain, repair,
and replace the utilities, infrastructure, and other improvements described above; (iv) access and
read utility meters; and (v) for any other purpose in Declarant's sole discretion.
(b) Specific Easements. Declarant also reserves for itself the non-exclusive
right and power to record such specific easements as may be necessary, in Declarant's discretion,
to develop the Village. The location of the easement shall be subject to the written approval of
the burdened property Owner, which approval shall not unreasonably be withheld, delayed or
conditioned.
(c) Interference. All work associated with the exercise of the easements
described in subsections (a) and (b) of this Section shall be performed in such a manner as to
minimize, to the extent practicable, interference with the use and enjoyment of the property
burdened by the easement. Upon completion of the work, the Person exercising the easement
shall restore the property, to the extent reasonably practical, to the condition existing prior to the
work. The exercise of these easements shall not extend to permitting entry into the structures on
any Lot nor shall it unreasonably interfere with the use of any Lot and, except in an emergency,
entry onto any Lot shall be made only after reasonable notice to the Owner or occupant pursuant
to Section 13.4 below.
13.4. Easements for Maintenance, Emergency, and Enforcement.
Declarant grants to the Village Association easements over the Village as necessary for
the Village Association to fulfill its maintenance responsibilities under these Village Covenants
and any Supplemental Declaration. The Village Association shall also have an easement and the
right, but not the obligation, to enter upon any Lot for emergency, security, and safety reasons, to
perform maintenance and to inspect for the purpose of ensuring compliance with and enforcing
the Village Documents. Such easement and right may be exercised by the Village Association
through its officers, directors, committee members, employees, contractors, or agents in their
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capacities as such and by all emergency personnel in the performance of their duties. Except in
an emergency situation, entry shall only be during reasonable hours and after notice to the
Owner. The exercise of the Village Association's rights of access to the Home shall be
accomplished by providing the Owner with fourteen (14) days notice of the Village
Association's exercise of its right of entry, with due respect for the rights of occupants to privacy
and freedom from unreasonable annoyance, as well as with appropriate precautions to protect the
personal property within the Home. The Village Association must then provide the Owner with
a second notice seven (7) days prior to such entry by the Village Association. In the event of an
emergency, whenever possible and prudent to the circumstances, 24 hour notification shall be
delivered to the Owner prior to the Village Association entering the Home.
Declarant grants to the Village Association, subject to any required notice, an easement
and right to enter a Lot to abate a Village Document violation and/or to remove any structure,
thing, or condition that violates the Village Documents. Any costs incurred, including Legal
Costs, shall be assessed against the Owner as a Benefited Assessment.
13.5. Easements for Cross-Drainage.
All portions of the Village shall be burdened with easements for drainage of storm water
runoff from other portions of the Village; however, no Person other than Declarant, the CDD
and/or SFWMD shall alter the drainage on any Lot to increase materially the drainage of storm
water onto adjacent portions of the Village without the consent of the Owner(s) of the affected
property, the Board, the SFWMD, the County, if applicable, and Declarant during the
Development and Sale Period.
13.6. Rights to Storm Water Runoff, Effluent, and Water Reclamation.
Declarant reserves for the CDD and its designees all rights to ground water, surface
water, storm water runoff, and effluent located or produced within the Village, and each Owner
agrees, by acceptance of a deed to a Lot, that the CDD shall retain all such rights. Such rights
shall include the reservation of an easement over the Village for access, and for installation and
maintenance of facilities and equipment to capture and transport such water, runoff, and effluent.
This Section may not be amended without Declarant's and the CDD's consent, and the rights
created in this Section shall survive termination of these Village Covenants.
13.7. Easement for Maintenance of Surface Water and Storm Water Management
System.
The CDD, the SFWMD and the County shall have a perpetual, non-exclusive easement
over all portions of the Surface Water and Storm Water Management System for access to
operate, maintain, repair, or replace the system. By this easement, the CDD, the SFWMD and the
County shall have the right to enter upon any portion of any Lot and the Village Common Area
which is a part of or adjacent to the Surface Water and Storm Water Management System, at a
reasonable time and in a reasonable manner, to operate, maintain, repair, or replace the system as
the CDD, the SFWMD, the County or any governmental agency or quasi-governmental body
requires or permits. Additionally, the CDD, the SFWMD and the County shall have a perpetual,
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non-exclusive easement for drainage over the entire Surface Water and Storm Water
Management System. No Person other than the CDD, the SFWMD and the County shall alter
the drainage flow of or over the Surface Water and Storm Water Management System, including,
without limitation, buffer areas or swales, without the CDD's, the SFWMD's and the County's
prior written approval, and, during the Development and Sale Period, Declarant's written
consent.
13.8. Sign Easement.
Declarant reserves for itself and the Village Association an easement (herein referred to
as the "Sign Easement") over, upon, and across all areas for erection, installation, operation,
maintenance, repair, and replacement of Village signs, walls, monuments, fencing, decorative
improvements, and other entry features, together with landscaping, lighting, utility, and irrigation
facilities. No Owner shall obstruct access to the Sign Easement, or install or remove any plant or
other improvement or installation placed in the Sign Easement by the beneficiaries thereof, or
obstruct the view of the Sign Easement from the adjacent street right-of-way. All Village signs,
walls, monuments, entry features, landscaping, utility, irrigation and other permanent
improvements installed in the Sign Easement by Declarant, which are subject to the review and
approval by the Foundation, shall become the Village Common Area of the Village Association
upon conveyance from Declarant, and the Village Association shall maintain such Sign
Easement and the improvements therein as part of the Village Common Area. In addition,
Declarant shall have the right, without the prior approval of the Village Association or any
Owner, to erect marketing signs within the Sign Easement, and to change, move, remove,
repaint, maintain, and otherwise exercise complete and unfettered control over such marketing
signs, if such changes have been reviewed and approved by the Foundation, at all times prior to
the sale of the last Lot owned by Declarant in the Village, and all such marketing signs shall be
and remain the exclusive property of Declarant and shall not be deemed part of the Village
Common Area owned by the Village Association.
13.9. Easement for Irrigation Equipment.
If there is a master irrigation system for the Village, Declarant and the Village
Association shall have a perpetual, non-exclusive easement over, under and through all exterior
portions of each Lot, except any area upon which buildings have been erected by Declarant or
otherwise in accordance with Article IV, for the purpose of installing, maintaining, repairing,
replacing and operating all irrigation equipment, systems and lines serving all or any portion of
the Lots and/or Village Common Area. The foregoing easement shall not impose any obligation
on the Village Association and/or Declarant to install any such improvements.
13.10. Easement to Foundation.
Declarant reserves for the Foundation an easement over, upon, and across the Property to
perform all obligations required of the Foundation under the Foundation Declaration and for the
locations of any improvements required to be made by the Foundation under the Foundation
Declaration.
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13.1 1. Easement to CDD.
Declarant reserves for the CDD an easement over, upon, and across the Property to
perform all obligations required of the CDD and for the locations of any improvements required
to be made by the CDD.
ARTICLE XIV
DISPUTE RESOLUTION
14.1. In General.
This Article XIV contains procedures concerning disputes between an Owner and the
Village Association, as well as between (i) an Owner and/or Declarant and (ii) the Village
Association and Declarant, related to the Village or each other. Regarding disputes between an
Owner and Declarant, the procedures in this Article XIV do not replace Declarant's customer or
warranty service procedures, and Owners are encouraged to resolve disputes through those
procedures prior to initiating any procedures hereunder.
14.2. Disputes Between Village Association and Owners.
All disputes, controversies, claims and demands between the Village Association and any
Owner pertaining to the subject areas described in Section 14.4 shall be governed by the
procedures set forth in Section 14.4.
14.3. Disputes Between Village Association/Owner and Declarant.
Any and all claims, disputes and/or other controversy between the Village Association or
any Owner and Declarant (or any affiliated general contractor or affiliated contractor, or any
officer, director, member, shareholder, partner, employee or agent thereof, individually and
collectively referred to as "Declarant" for purposes of this Article) or any non-affiliated general
contractor, non-affiliated contractor, subcontractor, material supplier, individual product
manufacturer, design professional or any other person or entity that provided materials, labor or
other services to the Property or a Home on behalf of Declarant, relating to these Village
Covenants, the use, condition, design, specifications, surveying, grading, construction,
installation, budgeting and/or performance of any Improvements in the Village Common Area or
the Home, whether based in contract, tort or statute violation, shall be subject to the provisions
set forth in Section 14.4 of this Article XIV of these Village Covenants, and/or, with respect to
any such disputes between an Owner and Declarant, the provisions of the purchase agreement
between such Owner and Declarant and/or the provisions of any warranty provided by Declarant
to such Owner.
14.4. Dispute Resolution.
ANY AND ALL CLAIMS, CONTROVERSIES, BREACHES OR DISPUTES BY OR
BETWEEN ANY OWNER AND THE VILLAGE ASSOCIATION AND/OR DECLARANT
(COLLECTIVELY REFERRED TO AS THE "BOUND PARTIES" AND INDIVIDUALLY AS
A "BOUND PARTY"), ARISING OUT OF OR RELATED TO THE PROPERTY, THE
SUBDIVISION OR VILLAGE OF WHICH THE PROPERTY IS A PART, THE SALE OF
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THE PROPERTY BY DECLARANT, OR ANY TRANSACTION RELATED THERETO,
WHETHER SUCH DISPUTE IS BASED ON CONTRACT, TORT, STATUTE, OR EQUITY,
INCLUDING WITHOUT LIMITATION, ANY DISPUTE OVER (a) BREACH OF
CONTRACT, (b) NEGLIGENT OR INTENTIONAL MISREPRESENTATION OR FRAUD,
(c) NONDISCLOSURE, (d) BREACH OF ANY ALLEGED DUTY OF GOOD FAITH AND
FAIR DEALING, (e) ALLEGATIONS OF LATENT OR PATENT DESIGN OR
CONSTRUCTION DEFECTS, INCLUDING WITHOUT LIMITATION, PURSUANT TO THE
PROVISIONS OF CHAPTER 558, FLORIDA STATUTES, (f) THE PROPERTY,
INCLUDING WITHOUT LIMITATION, THE PLANNING, SURVEYING, DESIGN,
ENGINEERING, GRADING, SPECIFICATIONS, CONSTRUCTION OR OTHER
DEVELOPMENT OF THE PROPERTY, THE PARCEL/TRACT OR THE COMMUNITY OF
WHICH THE PROPERTY IS A PART, (g) DECEPTIVE TRADE PRACTICES OR (h) ANY
OTHER MATTER ARISING OUT OF OR RELATED TO THE INTERPRETATION OF ANY
TERM OR PROVISION OF THIS VILLAGE COVENANTS, OR ANY DEFENSE GOING TO
THE FORMATION OR VALIDITY OF THIS VILLAGE COVENANTS, OR ANY
PROVISION OF THIS VILLAGE COVENANTS OR ANY EXHIBITS HERETO (EACH A
"DISPUTE"), SHALL BE ARBITRATED PURSUANT TO THE FEDERAL ARBITRATION
ACT AND SUBJECT TO THE PROCEDURES SET FORTH AS FOLLOWS:
(a) THIS AGREEMENT TO ARBITRATION SHALL BE DEEMED TO BE
A SELF-EXECUTING ARBITRATION AGREEMENT. ANY DISPUTE CONCERNING
THE INTERPRETATION OR THE ENFORCEABILITY OF THIS ARBITRATION
AGREEMENT, INCLUDING WITHOUT LIMITATION, ITS REVOCABILITY OR
VOIDABILITY FOR ANY CAUSE, ANY CHALLENGES TO THE ENFORCEMENT OF
THIS ARBITRATION AGREEMENT, OR THE SCOPE OF ARBITRABLE ISSUES UNDER
THIS ARBITRATION AGREEMENT, AND ANY DEFENSE RELATING TO THE
ENFORCEMENT OF THIS ARBITRATION AGREEMENT, INCLUDING WITHOUT
LIMITATION, WAIVER, ESTOPPEL, OR LACHES, SHALL BE DECIDED BY AN
ARBITRATOR IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT AND NOT
BY A COURT OF LAW.
(b) IN THE EVENT THAT A DISPUTE ARISES BETWEEN THE BOUND
PARTIES, SUCH DISPUTE SHALL BE RESOLVED BY AND PURSUANT TO THE
ARBITRATION RULES AND PROCEDURES OF JUDICIAL ARBITRATION AND
MEDIATION SERVICES ("JAMS") IN EFFECT AT THE TIME THE REQUEST FOR
ARBITRATION IS SUBMITTED. IN THE EVENT JAMS IS FOR ANY REASON
UNWILLING OR UNABLE TO SERVE AS THE ARBITRATION SERVICE, THE BOUND
PARTIES SHALL SELECT ANOTHER REPUTABLE ARBITRATION SERVICE. IF THE
BOUND PARTIES ARE UNABLE TO AGREE ON AN ALTERNATIVE SERVICE, THEN
EITHER BOUND PARTY MAY PETITION ANY COURT OF COMPETENT
JURISDICTION IN THE COUNTY IN WHICH THE PROPERTY IS LOCATED TO
APPOINT SUCH AN ALTERNATIVE SERVICE, WHICH SHALL BE BINDING ON THE
BOUND PARTIES. THE RULES AND PROCEDURES OF SUCH ALTERNATIVE
SERVICE IN EFFECT AT THE TIME THE REQUEST FOR ARBITRATION IS
SUBMITTED SHALL BE FOLLOWED.
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(c) The Bound Parties expressly agree and acknowledge that these Village
Covenants involves and concerns interstate commerce and is governed by the provisions of the
Federal Arbitration Act (9 U.S.C. §I et seq.) now in effect and as the same may from time to
time be amended, to the exclusion of any different or inconsistent state or local law, ordinance,
regulation, or judicial rule. Accordingly, any and all Disputes shall be arbitrated — which
arbitration shall be mandatory and binding —pursuant to the Federal Arbitration Act.
(d) This arbitration agreement shall inure to the benefit of, and be enforceable
by, each Owner, Declarant and Declarant's Affiliates and related entities, the Village
Association, and each of their respective employees, officers, directors, agents, representatives,
contractors, subcontractors, agents, vendors, suppliers, design professionals, insurers and any
other person whom any Owner or the Village Association contends is responsible for any alleged
defect in or to the Property or any improvement or appurtenance thereto. The Bound Parties
contemplate the inclusion of such Bound Parties in any arbitration of a Dispute and agree that the
inclusion of such Bound Parties will not affect the enforceability of this arbitration agreement.
(e) In the event any Dispute arises under the terms of these Village Covenants
or in the event of the bringing of any arbitration action by a Bound Party hereto against another
Bound Party hereunder by reason of any breach of any of the covenants, agreements or
provisions on the Bound Party of the other Bound Party arising out of these Village Covenants,
then in that event the prevailing party shall be awarded from the other party all costs and
expenses in any way related to the Dispute, including actual attorney and paralegal's fees,
accounting and engineering fees, and any other professional fees resulting there from as awarded
by court or arbitrator.
(f) The arbitrator shall be authorized to provide all recognized remedies
available in law or in equity for any cause of action that is the basis of the arbitration.
(g) The decision of the arbitrator shall be final and binding. The Bound
Parties expressly agree that an application to confirm, vacate, modify, or correct an award
rendered by the arbitrator shall be filed in any court of competent jurisdiction in the County in
which the Property is located.
(h) To the extent that any state or local law, ordinance, regulation, or judicial
rule is inconsistent with any provision of the rules of the arbitration service under which the
arbitration proceeding shall be conducted, the latter rules shall govern the conduct of the
proceeding.
(i) The participation by any party, or any party whom the Village Association
or any Owner contends is responsible for a Dispute, in any judicial proceeding concerning this
arbitration agreement or any matter arbitrable hereunder shall not be asserted or accepted as a
reason to delay, to refuse to participate in arbitration, or to refuse to compel arbitration, including
instances in which the judicial proceeding involves parties not subject to this arbitration
agreement and/or who cannot otherwise be compelled to arbitrate.
(j) Fees and costs of the arbitration and/or the arbitrator shall be borne
equally by the Bound Parties to the arbitration; provided, however, that the fees and costs of the
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arbitration and/or the arbitrator ultimately shall be allocated and borne as determined by the
arbitrator. Notwithstanding the foregoing, the Bound Parties shall each be solely responsible for
their own attorney fees and expert witness costs.
(k) The arbitrator appointed to serve shall be a neutral and impartial
individual.
(1) The venue of the arbitration shall be in Collier County, Florida, unless the
parties agree in writing to another location.
(m) If any provision of this arbitration agreement shall be determined to be
unenforceable or to have been waived, the remaining provisions shall be deemed to be severable
therefrom and enforceable according to their terms.
(n) The parties to the arbitration shall have the right to conduct a reasonable
amount of discovery, including written discovery, depositions and inspections and testing, all as
approved and coordinated by the arbitrator.
(o) Any and all Disputes between Declarant and the Village Association
arising from or related to the Village, these Village Covenants or any other agreements between
Declarant and the Village Association shall be resolved in accordance with these Village
Covenants.
(p) Pre-Arbitration Dispute Resolution Provision: For all Disputes, the Bound
Parties agree to follow the pre-arbitration procedures set forth below. The Dispute resolution
provisions of these Village Covenants are intended to grant certain rights to Declarant and/or the
Village Association which are in addition to those rights provided in Chapter 558, Florida
Statutes ("Chapter 558 Notice of Claim"), as it exists at the time these Village Covenants are
recorded. If a court of law should determine that any of the terms of these Village Covenants
conflict with any of the terms of Chapter 558 Notice of Claim, the terms of Chapter 558 Notice
of Claim shall supersede and control to the extent of such conflict.
i. Notification. The Village Association and all Owners agree to
provide Declarant, with written notice of any matters relating to a Dispute as soon as is
reasonably possible after the Village Association or any Owner becomes aware, or should
have become aware, of such matters and Dispute. Additionally, in accordance with the
requirements of Chapter 558 Notice of Claim, the Village Association and all Owners
must comply with and is hereby advised of the following:
ANY CLAIMS FOR CONSTRUCTION DEFECTS ARE SUBJECT TO THE
NOTICE AND CURE PROVISIONS OF CHAPTER 558, FLORIDA
STATUTES.
ii. Cooperation; Access; Repair. The Village Association and each
Owner agree to provide Declarant and its representatives, contractors, and others as
Declarant may request, with prompt, reasonable cooperation, which may, for example,
include access to all portions of the Property, in order to facilitate Declarant's
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investigation regarding a Dispute including, without limitation, for purposes of
inspecting, testing, repairing, replacing, correcting, or otherwise addressing matters
related to the Dispute. If the Dispute arises out of or relates to the planning, surveying,
design, engineering, grading, specifications, construction, or other development of the
Property, Declarant is hereby granted the irrevocable right, but is under no obligation, to
inspect, repair and/or replace any and all affected parts of the Property.
NOTICE: THE BOUND PARTIES AGREE TO HAVE ANY DISPUTE ARISING OUT OF
THE MATTERS INCLUDED IN THIS ARBITRATION AGREEMENT (ARTICLE XIV OF
THIS VILLAGE COVENANTS) ENTITLED, "DISPUTE RESOLUTION - ARBITRATION"
DECIDED BY NEUTRAL ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT, AND THE BOUND PARTIES ARE GIVING UP ANY RIGHTS THE
BOUND PARTIES MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT
OR JURY TRIAL. THE BOUND PARTIES ARE GIVING UP THEIR RESPECTIVE
JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE
SPECIFICALLY INCLUDED IN THIS ARBITRATION AGREEMENT. IF ANY OWNER
OR DECLARANT AND/OR THE VILLAGE ASSOCIATION REFUSE TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION, THE OWNER OR
DECLARANT AND/OR THE VILLAGE ASSOCIATION MAY BE COMPELLED TO
ARBITRATE UNDER THE FEDERAL ARBITRATION ACT. THE BOUND PARTIES'
AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
THIS VILLAGE COVENANTS PROVIDE THAT ALL DISPUTES BETWEEN THE BOUND
PARTIES WILL BE RESOLVED BY ARBITRATION IN ACCORDANCE WITH THE
PROVISIONS SET FORTH ABOVE. THIS MEANS THAT THE BOUND PARTIES EACH
GIVE UP THE RIGHT TO GO TO COURT OR TO A JURY TO ASSERT OR DEFEND
RIGHTS UNDER THIS VILLAGE COVENANTS. THE BOUND PARTIES RIGHTS WILL
BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT BY A JUDGE OR JURY.
THE BOUND PARTIES ARE ENTITLED TO A FAIR HEARING, BUT THE ARBITRATION
PROCEDURES ARE SIMPLER AND MORE LIMITED THAN THE RULES FOLLOWED IN
A COURT. ARBITRATOR DECISIONS ARE AS ENFORCEABLE AS ANY COURT
ORDER AND ARE SUBJECT TO VERY LIMITED REVIEW BY A COURT.
THE BOUND PARTIES UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT
ALL DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THIS ARTICLE
ENTITLED "DISPUTE RESOLUTION - ARBITRATION" TO NEUTRAL, BINDING
ARBITRATION.
ARTICLE XV
MORTGAGEE PROVISIONS
The following provisions are for the benefit of holders, insurers, and guarantors of first
Mortgages on Lots. The provisions of this Article apply to both these Village Covenants and to
the Bylaws, notwithstanding any other provisions contained therein.
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15.1. Notices of Action.
An institutional holder, insurer, or guarantor of a first Mortgage which provides a written
request to the Village Association (such request to state the name and address of such holder,
insurer, or guarantor and the street address of the Lot to which its Mortgage relates, thereby
becoming an "Eligible Holder"), will be entitled to timely written notice of:
(a) Any condemnation loss or any casualty loss which affects a material
portion of the Village or which affects any Lot on which there is a first Mortgage held, insured,
or guaranteed by such Eligible Holder;
(b) Any delinquency in the payment of assessments or charges owed by a Lot
subject to the Mortgage of such Eligible Holder, where such delinquency has continued for a
period of sixty (60) days, or any other violation of the Village Documents relating to such Owner
or occupant which is not cured within sixty (60) days;
(c) Any lapse, cancellation, or material modification of any Village
Association insurance policy;
(d) Any proposed action which would require the consent of a specified
percentage of Eligible Holders; or
(e) If the U.S. Department of Housing and Urban Development is insuring or
the U.S. Department of Veterans Affairs is guaranteeing the Mortgage on any Lot, material
amendment to the Village Documents or extraordinary action of the Village Association, as
defined under VA Pamphlet 26-7, as it may be amended or superseded.
Otherwise, no consent from Eligible Holders shall be necessary to enable the Village
Association to accomplish any of its operational duties and responsibilities or to exercise any of
its rights.
15.2. Special FHLMC Provision.
If any portion of the Village is a condominium, then to the extent required by the Federal
Home Loan Mortgage Corporation, the following provisions apply in addition to and not in lieu
of the foregoing. Unless at least 67% of the first Mortgagees or Class Members representing at
least 67% of the total Village Association vote consent, the Village Association shall not:
(a) By act or omission seek to abandon, partition, subdivide, encumber, sell,
or transfer all or any portion of the real property comprising the Village Common Area which the
Village Association owns, directly or indirectly (the granting of easements for utilities or other
similar purposes consistent with the intended use of the Village Common Area shall not be
deemed a transfer within the meaning of this subsection);
(b) Change the method of determining the obligations, assessments, dues, or
other charges which may be levied against an Owner;
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(c) By act or omission change, waive, or abandon any scheme of regulations
or enforcement pertaining to architectural design, exterior appearance or maintenance of the
Village Common Area (the issuance and amendment of architectural standards, procedures, rules
and regulations, or use restrictions shall not constitute a change, waiver, or abandonment within
the meaning of this provision);
(d) Fail to maintain insurance, as required by these Village Covenants; or
(e) Use hazard insurance proceeds for any Village Common Area losses for
other than the repair, replacement, or reconstruction of such property.
First Mortgagees may, jointly or singly, pay taxes or other charges which are in default
and which may or have become a charge against the Village Common Area and may pay
overdue premiums on casualty insurance policies or secure new casualty insurance coverage
upon the lapse of an Village Association policy, and first Mortgagees making such payments
shall be entitled to immediate reimbursement from the Village Association.
15.3. Other Provisions for First Lien Holders.
To the extent not inconsistent with Florida law:
(a) Any restoration or repair of the Village after a partial condemnation or
damage due to an insurable hazard shall be performed substantially in accordance with these
Village Covenants and the original plans and specifications unless the approval is obtained of the
Eligible Holders of first Mortgages on Lots or to which more than 50% of the votes of Lots or
subject to Mortgages held by such Eligible Holders are allocated.
(b) Any election to terminate the Village Association after substantial
destruction or a substantial taking in condemnation shall require the approval of the Eligible
Holders of first Mortgages on Lots to which more than 50% of the votes of Lots subject to
Mortgages held by such Eligible Holders are allocated.
15.4. Amendments to Documents.
(a) The consent of at least 67% of the total voting interests, and the consent of
Declarant, during the Development and Sale Period, and the approval of the Eligible Holders of
first Mortgages on Lots to which at least 67% of the votes of Lots subject to a Mortgage
appertain, shall be required to terminate the Village Association.
(b) If and to the extent FHA or VA is insuring or guaranteeing any Mortgage
on a Lot, the consent of at least 67% of the voting interests, and the consent of Declarant, during
the Development and Sale Period, and the approval of Eligible Holders of first Mortgages on
Lots to which more than 50% of the votes of Lots subject to a Mortgage appertain, shall be
required materially to amend any provisions of these Village Covenants, Bylaws, or Articles of
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Incorporation, or to add any material provisions thereto which establish, provide for, govern, or
regulate any of the following:
(i) voting;
(ii) assessments, assessment liens, or subordination of such liens;
(iii) reserves for maintenance, repair, and replacement of the Village
Common Area;
(iv) insurance or fidelity bonds;
(v) rights to use the Village Common Area;
(vi) responsibility for maintenance and repair of the Village;
(vii) expansion or contraction of Village or the addition, annexation, or
withdrawal of property to or from the jurisdiction of the Village
Association;
(viii) boundaries of a Lot;
(ix) leasing of Lots;
(x) imposition of any right of first refusal or similar restriction of the
right of any Owner to sell, transfer, or otherwise convey his or her
Lot;
(xi) establishment of self-management by the Village Association
where professional management has been required by an Eligible
Holder; or
(xii) any provisions included in the Village Documents which are for
the express benefit of holders, guarantors, or insurers of first
Mortgages on Lots.
15.5. Construction of Article XV.
Nothing contained in this Article shall be construed to reduce the percentage vote that
must otherwise be obtained under these Village Covenants, the Bylaws, or Florida law for any of
the acts set out in this Article.
15.6. No Priority.
No provision of these Village Covenants or the Bylaws gives or shall be construed as
giving any Owner or other party priority over any rights of the first Mortgagee of any Lot in the
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case of distribution to such Owner of insurance proceeds or condemnation awards for losses to or
a taking of the Village Common Area.
15.7. Notice to Village Association.
Upon request, each Owner shall be obligated to furnish to the Village Association the
name and address of the holder of any Mortgage encumbering the Owner's Lot.
15.8. Failure of Mortgagee to Respond.
Any Mortgagee who receives a written request from the Board to respond to or consent
to any action shall be conclusively deemed to have irrevocably approved such action if the
Village Association does not receive a written response from the Mortgagee within sixty (60)
days of the date of the Village Association's request, provided such request is delivered to the
Mortgagee by certified mail, return receipt requested; overnight delivery by a nationally
recognized courier that provides tracking and receipt services; or personal delivery.
15.9. HUD/VA Approval.
As long as there is a Class "B" membership, the following actions shall require the prior
approval of the U.S. Department of Housing and Urban Development ("HUD") or the U.S.
Department of Veterans Affairs ("VA"), if either such agency is insuring or guaranteeing the
Mortgage on any Lot or has granted project approval for such Mortgages: merger, consolidation,
or dissolution of the Village Association; annexation of additional property; dedication,
conveyance (other than to correct errors on property descriptions or other inconsequential or
immaterial conveyances), or mortgaging of Village Common Area; or material amendment of
these Village Covenants or the Bylaws. The granting of easements for utilities or other similar
purposes consistent with the intended use of the Village Common Area shall not be deemed a
conveyance within the meaning of this Section.
15.10. Rights of Declarant and Institutional Mortgagees To Pay Assessments and
Receive Reimbursement. Declarant and any institutional lender(s) shall have the right, but not
the obligation, jointly or individually, and at their sole option, to pay any of the Assessments
which are in default and which may or have become a charge against any Lot(s) or Further,
Declarant and any institutional lender shall have the right, but not the obligation, jointly or
individually, and, at their sole option, to pay insurance premiums or fidelity bond premiums or
other required items of Operating Expenses on behalf of the Village Association in the event the
same are overdue and when lapses in policies or services may occur. Declarant and any
institutional lender paying overdue Operating Expenses on behalf of the Village Association will
be entitled to immediate reimbursement from the Village Association plus Interest and any costs
of collection including, but not limited to, Legal Costs, and the Village Association shall execute
an instrument in recordable form to this effect and deliver the original of such instrument to each
institutional lender who is so entitled to reimbursement and to Declarant if Declarant is entitled
to reimbursement.
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ARTICLE XVI
DISCLOSURES AND WAIVERS
16.1. No Liability For Third Party Acts.
Owners and occupants of Lots, and their respective guests and invitees, are responsible
for their own personal safety and for their property in the Village. The Village Association may,
but is not obligated to, maintain or support certain activities within the Village which are
intended to promote or enhance safety or security within the Village. However, the Village
Association and Declarant shall not in any way be considered insurers or guarantors of safety or
security within the Village, nor shall they be held liable for any loss or damage by reason of
failure to provide adequate security or ineffectiveness of security measures undertaken.
No representation or warranty is made that any gate or other mechanism or system for
limiting access to Fiddler's Creek®, cannot be compromised or circumvented, nor that any such
gate or other mechanism or system for limiting access to Fiddler's Creek® will prevent loss or
provide the detection or protection for which the gate or other mechanism or system for limiting
access to the Fiddler's Creek® is designed or intended. Each Owner acknowledges, understands,
and shall be responsible for informing its tenants and all occupants and invitees of its Lot that the
Village Association, the Board and its committees, the Foundation, its board and committees,
Foundation Declarant, Declarant and any predecessor Declarant are not insurers or guarantors of
security or safety and that each Person within Fiddler's Creek® assumes all risks of personal
injury and loss or damage to property, including Lots and the contents of Lots resulting from acts
of third parties.
16.2. View Impairment.
Neither Declarant nor the Village Association guarantee or represent that any view over
and across the Lots or any open space within the Village will be preserved without impairment.
Neither Declarant nor the Village Association shall be obligated to relocate, prune, or thin trees
or other landscaping. The Village Association (with respect to the Village Common Area) and
Declarant have the right to relocate, prune, thin, or add trees and other landscaping from time to
time subject to applicable law. Any express or implied easements for view purposes or for the
passage of light and air are hereby expressly disclaimed.
16.3. Construction Activities.
All Owners, occupants, and users of Lots are hereby placed on notice that Declarant, any
Declarant Affiliate, and/or their agents, contractors, subcontractors, licensees, and other
designees, successors, or assigns, shall, from time to time, conduct construction activities within
the Village. By the acceptance of a deed or other conveyance or mortgage, leasehold, license, or
other interest, and/or by using any portion of a Lot or the Village generally, Owners, occupants
and users of Lots acknowledge, stipulate, and agree (a) such activities shall not be deemed
nuisances, or noxious or offensive activities, under any applicable covenants or at law generally;
(b) not to enter upon, or allow their children or other Persons under their control or direction to
enter upon (regardless of whether such entry is a trespass or otherwise), any property within or in
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proximity to the Lot where such activities are being conducted (even if not being actively
conducted at the time of entry, such as at night or otherwise during non-working hours); (c) that
Declarant, any Declarant Affiliate, or predecessor Declarant, and all of their agents, contractors,
subcontractors, licensees, and other designees, successors, and assigns, shall not be liable for any
losses, damages (compensatory, consequential, punitive, or otherwise), injuries, or deaths arising
from or relating to any breach of this covenant; (d) that any purchase or use of any Lot has been
and will be made with full knowledge of the foregoing; and (e) this acknowledgment and
agreement is a material inducement to Declarant or its Affiliates to sell, convey, lease, and/or
allow the use of Lots within the Village.
16.4. Liability for Village Association Operations.
The Village Association shall, to the fullest extent permitted by law, indemnify, defend,
and hold harmless Declarant and any predecessor Declarant (including their respective Affiliates,
successors, and assigns) from and against any and all losses, claims, demands, damages, costs,
and expenses of whatever kind or nature (including, without limitation, Legal Costs), which
relate to or arise out of Village Association management and operations, including, without
limitation, improvement, maintenance, and operation of the Village Common Areas and the
collection of assessments.
ARTICLE XVII
CHANGES IN OWNERSHIP OF LOTS
Any Owner, other than Declarant or any Declarant Affiliate, desiring to sell or otherwise
transfer title to his or her Lot shall give the Board written notice at least fourteen (14) days' prior
to recording the deed of the name and address of the purchaser or transferee, the date on which
transfer of title is to occur, and such other information as the Board may reasonably require.
Notwithstanding the transfer of title, the transferor shall be jointly and severally responsible with
the transferee for all future obligations of the Owner, including future assessment obligations,
until the date upon which the Board receives such notice, after which the original Owner shall be
released from the obligation to pay assessments levied after the date such notice is received.
ARTICLE XVIII
AMENDMENT OF VILLAGE COVENANTS
18.1. By Declarant.
In addition to specific amendment rights granted elsewhere in these Village Covenants,
until the first conveyance of a Lot to a Person other than Declarant or a Builder, Declarant may
unilaterally amend these Village Covenants for any purpose.
Thereafter and until termination of the Class "B" Control Period, Declarant may
unilaterally amend these Village Covenants if such amendment is necessary (a) to bring any
provision into compliance with any applicable governmental statute, rule, regulation, or judicial
determination; (b) to enable any reputable title insurance company to issue title insurance
coverage on the Lots; (c) to enable any institutional or governmental lender, purchaser, insurer,
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or guarantor of mortgage loans, including, for example, the Federal National Mortgage Village
Association, the Federal Home Loan Mortgage Corporation, HUD, or VA, to make, purchase,
insure, or guarantee mortgage loans on the Lots; (iv) to satisfy the requirements of any local,
state, or federal governmental agency; or (v) for any other purpose which does not materially
adversely affect title to any Lot, unless the Owner of such Lot consents to such amendment. The
Village Association shall, forthwith upon request of Declarant, join in any such amendments or
modifications and execute such instruments to evidence such joinder and consent as Declarant
shall, from time to time, request.
18.2. By the Owners.
Except as otherwise specifically provided above and elsewhere in these Village
Covenants these Village Covenants may be amended only by the affirmative vote or written
consent, or any combination thereof, of Owners representing at least 75% of the Village
Association's total votes. In addition, during the Development and Sale Period, Declarant's
written consent is required for any amendment. The approval requirements set forth in Section
15.9 also shall be met, if applicable.
Notwithstanding the above, the percentage of votes necessary to amend a specific clause
shall not be less than the prescribed percentage of affirmative votes required for action to be
taken under that clause.
18.3. Validity and Effective Date.
No amendment may remove, revoke, or modify any right or privilege of Declarant or the
Class `B" Member without the written consent of Declarant or the Class "B" Member,
respectively (or the assignee of such right or privilege). If an Owner consents to any amendment
to these Village Covenants or the Bylaws, it will be conclusively presumed that the Owner has
the authority 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.
Any amendment shall become effective upon the earliest of (a) actual notice; (b)
recording; or (c) later effective date specified in the amendment. Any procedural challenge to an
amendment must be made within six (6) months of its recordation or such amendment shall be
presumed to have been validly adopted. In no event shall a change of conditions or
circumstances operate to amend any provisions of these Village Covenants.
18.4. Exhibits.
Exhibits "A" and "B" attached to these Village Covenants are incorporated by this
reference and amendment of such exhibits shall be governed by this Article. Exhibit "C" is
incorporated by reference and may be amended as provided in Article III or pursuant to Sections
18.1 and 18.2. All other exhibits are attached for informational purposes and may be amended as
provided therein or in the provisions of these Village Covenants which refer to such exhibits.
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IN WITNESS WHEREOF, Declarant has caused this instrument to be executed on the
day and year written below.
TAYLOR MORRISON OF FLORIDA, INC.,
a Florida corps ration
By:
Printed Name: ' , 61 ! "T t it tT = Ps
Its: '( . 1, C
STATE OF FLORIDA )
) SS:
COUNTY OFSuraScici )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was
acknowledged before me by Afx-iltcm T. ,a, ie r' , the Vic fk) ., ,1e..,-t of TAYLOR
MORRISON OF FLORIDA, INC., a tlorida corporation, freely and voluntarily under authority
duly vested in him by said cor oration and_that the seal affixed thereto is the true corporate seal
of said corporation, ho is ersonally known to me) or who has produced
as identification.
WITNESS my hand and official seal in the County and State last aforesaid this day
of JL ILI , 201 .
&Public
DEBORAH K. BECKETT
Typed, printed or stamped name of Notary Public
My Commission Expires:
DEBORAH K BECKETT
MY COMMISSION#EE121571
EXPIRES:AUG 14,2015
iw;i, 11mz h?xtebetn May WA Me_
70
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ASSOCIATION:
MUSSORIE VILLAGE AT FIDDLER'S
CREEK ASSOCIATION, INC., a Florida
corporation not for profit
WITNESSES AS TO ASSOCIATION:
:
B Y (/ ---
Signature JOH SHER, President
Print Name
[CORPORATE SEAL]
Signature
Print Name
STATE OF FLORIDA )
) SS
COUNTY OF )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was
acknowledged before me by JOHN ASHER, as President of MUSSORIE VILLAGE AT
FIDDLER'S CREEK ASSOCIATION, INC., a Florida corporation not for profit, freely and
voluntarily under authority duly vested in him by said corporation, and that the seal affixed
thereto is the true corporate seal of said corporation. He is personally known to me.
WITNESS my hand and official seal in the County and State last aforesaid this
day of , 2014.
Notary Public, State of Florida at Large
My Commission Expires: Typed, Printed or Stamped Name of Notary Public
16A4
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
LOTS 1 THROUGH 54 AND ALL LANDSCAPE BUFFER EASEMENTS ("L.B.E.") AND
SIGN EASEMENTS ("S.E."), AS SHOWN ON THAT CERTAIN PLAT OF MUSSORIE
VILLAGE AT FIDDLER'S CREEK, RECORDED IN PLAT BOOK
PAGES THROUGH , OF THE PUBLIC
RECORDS OF COLLIER COUNTY, FLORIDA.
I 7460589:9
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EXHIBIT `B"
SITE PLAN OF MUSSORIE VILLAGE AT FIDDLER'S CREEK®
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EXHIBIT "C"
INITIAL USE RESTRICTIONS
For purposes of these Use Restrictions, unless the context otherwise requires, Owner
shall also include the family, invitees, guests, licensees, lessees and sublessees of any Owner,
and any other permitted occupants of a Home. All the Property shall be held, used and enjoyed
subject to the following limitations and restrictions, subject to the exemption of Declarant in
Paragraph 37 hereof:
1. Single-Family Use. The Homes shall be for single-family use only. No
commercial occupation or activity may be carried on in Mussorie Village at Fiddler's Creek®
except as such occupation or activity is permitted to be carried on by Declarant under the Village
Covenants. A family is defined to mean any number of persons related by blood, marriage or
adoption or not more than two (2) unrelated persons living as a single housekeeping unit.
2. Nuisance. Subject to allowances for reasonable construction activities, no
obnoxious or offensive activity shall be carried on, in or about the Lots or in or about any
Improvements, or on any portion of Mussorie Village at Fiddler's Creek®, nor shall anything be
done therein which may be or become an unreasonable annoyance or a nuisance to any Owner.
No use or practice shall be allowed in or around the Lots which is a source of annoyance to
Owners or occupants of Homes or which interferes with the peaceful possession or proper use of
the Lots or the surrounding areas. No loud noises or noxious odors shall be permitted in any
Improvements or Homes. Without limiting the generality of any of the foregoing provisions, no
horns, whistles, bells or other sound devices (other than security devices used exclusively for
security purposes), noisy or smoky vehicles, large power equipment or large power tools,
unlicensed off-road motor vehicles or any items which may unreasonably interfere with
television or radio reception of any Owner shall be located, used or placed on any Lot, or
exposed to the view of other Owners without the prior written approval of the Architectural
Review Board ("ARB").
3. No Improper Uses. No improper, offensive, hazardous or unlawful use shall be
made of any Lot or the Home thereon nor shall anything be done thereon tending to cause
embarrassment, discomfort, annoyance or nuisance to any person using any portion of the
Property. The Property will be subject to, and the Village Association and each Owner will
conform to and observe, all laws, statutes, ordinances, rules and regulations of the United States
of America, the State of Florida, the County, and any and all other governmental and public
authorities and boards or officers of the same relating to such Property and any Improvements
thereon or the use thereof. Violations of laws, orders, rules, regulations or requirements of any
governmental agency having jurisdiction thereover relating to any Lot or Home shall be
corrected by, and at the sole expense of the Owner of such Lot.
4. Leases. No portion of a Home (other than an entire Home) may be rented and the
lease or sale of any Home on a time-share basis is prohibited. All leases shall provide that the
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Village Association shall have the right to terminate the lease upon default by the tenant in
observing any of the provisions of the Village Covenants, the Articles, the Bylaws, these Use
Restrictions, the Foundation Documents, or of any other agreement, document or instrument
governing the Lots. No Home shall be leased for a term of less than thirty (30) days and no
Home may be leased more than three (3) times in any calendar year. A copy of the lease must be
provided to the Village Association and the Foundation within five (5) days of the execution of
the lease. The Owner of a leased Home shall be jointly and severally liable with his or her tenant
to the Village Association to pay any claim for injury or damage to property caused by the
negligence of the tenant. Every lease shall be subordinated to any lien filed by the Village
Association whether before or after such lease was entered into.
In the event that an Owner is delinquent in the payment of his or her Assessments
or other sums due and owing to the Village Association, the Lot shall not be leased until such
amounts are paid in full or unless the Village Association consents, in writing, to any such lease.
If the Lot is leased in violation of this provision, the Village Association may terminate the lease
and evict the tenants in addition to imposing all other available remedies. In the event an Owner
is in default in the payment of Assessments or other sums due and owing to the Village
Association and the Owner's Lot is leased, the Village Association shall have the right and
authority to collect the rent to be paid by the tenant to the Owner directly from the tenant. In the
event such tenant fails to remit said rent directly to the Village Association within ten (10) days
(but no later than the day the next rental payment is due) from the day the Village Association
notified such tenant in writing that the rents must be remitted directly to the Village Association,
the Village Association shall have the right to terminate the lease and evict the tenant. All sums
received from the tenant shall be applied to the Owner's account for the leased Lot according to
the priority established in Section 720.3085, Florida Statutes, until the Owner's account is
current. All leases entered into by an Owner shall be deemed to automatically incorporate this
provision and all the Owners hereby appoint the Village Association its agent for such purpose.
The Village Association may, without further approval of the Owner of the leased Lot, terminate
the lease for violations of the Village Covenants by the tenants, or the tenant's family or guests
and thereafter evict the tenants from the Lot.
In addition to any notice to a tenant of a Lot permitted to be given by law, an
Owner by acceptance of a deed to a Lot, does hereby irrevocably grant to the Village Association
(and its officers, directors, designees, agents, and employees) and to any professional
management or accounting firm providing management or accounting services to the Village
Association, the right to notify, in writing, the tenant of the Lot of any delinquency by the Owner
of the Lot in payment of any monetary obligations due to the Village Association, including but
not limited to the amount thereof. Further each Owner hereby agrees and acknowledges that the
disclosure of any of Owner's delinquent monetary obligations due to the Village Association, as
provided in the preceding sentence, shall not be construed or be deemed to be a violation of the
Fair Debt Collection Practices Act ("FDCPA") 15 U.S.C. Section 1692 et. seq.
5. Removal of Sod and Shrubbery; Alteration of Drainage, Etc. Except for
Declarant's acts and activities with regard to the development of Mussorie Village at Fiddler's
Creek®, no Improvements (including, but not limited to, driveways and landscaping) and no sod,
top soil, muck, trees or shrubbery shall be removed from Mussorie Village at Fiddler's Creek®
and no change in the condition of the soil or the level of the land of any of the Mussorie Village
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at Fiddler's Creek® area shall be made which would result in any permanent change in the flow
or drainage of storm water within Mussorie Village at Fiddler's Creek® without prior written
consent of the Village Association, the ARB and the CDD.
6. Addition of Landscaping; Alteration of Drainage, Etc. If an Owner receives
approval to install additional landscaping to their Lot, the Owner is responsible for increased
costs in the maintenance of the additional landscaping and the Village Association or landscape
maintenance company will bill the Owner directly for the additional maintenance and the Owner
is responsible for payment of the increased maintenance. The installation of additional
landscaping shall not result in any permanent change in the flow or drainage of storm water
within Mussorie Village at Fiddler's Creek® without prior written consent of the ARB, the
Village Association and the CDD.
7. Antenna and Aerial. No outside television, radio, or other electronic towers,
aerials, antennae, satellite dishes or device of any type for the reception or transmission of radio
or television broadcasts or other means of communication shall hereafter be erected, constructed,
placed or permitted to remain on any portion of the Property or upon any improvements thereon,
unless expressly approved in writing by the Village Association and the Foundation, except that
this prohibition shall not apply to those satellite dishes that are one (1) meter (39.37 inches) in
diameter or less, and specifically covered by 47 C.F.R. Part 1, Subpart S, Section 1.4000, as
amended, promulgated under the Telecommunications Act of 1996, as amended from time to
time, subject to the rights of the Foundation. The Village Association is empowered to adopt
rules governing the types of antennae which may be permitted and restrictions relating to safety,
location and maintenance of antennae. Subject to the rights of the Foundation, the Village
Association may also adopt and enforce reasonable rules limiting installation of permissible
dishes or antennae to certain specified locations, and integrated with the Property and
surrounding landscape, to the extent that reception of an acceptable signal would not be
unlawfully impaired by such rules and provided the cost of complying with such rules would not
unreasonably increase the cost of installation of permissible dishes or antennae. Any permissible
dishes or antennae shall be installed in compliance with all federal, state and local laws and
regulations, including zoning, land-use and building regulations. Further, any Owner desiring to
install permissible dishes or antennae may, but is not obligated, submit plans and specifications
for same to the Village Association to ensure compliance with the Village Association's rules
governing the types of permissible antennae and restrictions relating to safety, location and
maintenance of antennae. This Section 7 shall not apply to Declarant.
8. Garbage and Trash. Each Owner shall regularly pick up all garbage, trash, refuse
or rubbish around his or her Lot, and no Owner or resident shall place or dump any garbage,
trash, refuse or other materials on any other portions of Mussorie Village at Fiddler's Creek®,
including any Village Common Area or any property contiguous to Mussorie Village at Fiddler's
Creek®. Garbage, trash, refuse or rubbish shall be deposited in appropriate containers.
9. Radio Transmission. No ham radios or radio transmission equipment shall be
operated or permitted to be operated within Mussorie Village at Fiddler's Creek® without the
prior written consent of the Village Association and the Foundation.
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10. Signs. No sign, display, poster, advertisement, notice or other lettering of any
kind whatsoever (including, without limitation, "For Sale," "For Rent" or `By Owner" or any
other signs for the sale or renting of homes) shall be exhibited, displayed, inscribed, painted or
affixed in public view of any portion of any building, vehicle or other Improvement in Mussorie
Village at Fiddler's Creek® (including, without limitation, a Home) without the prior written
approval of the ARB, which approval may be given, withheld, conditioned or denied in the sole
and absolute discretion of the ARB. Notwithstanding anything to the contrary contained in these
Rules and Regulations, the ARB shall not approve any sign, display, poster, advertisement,
notice or other lettering which is or in the nature of a "For Sale," "For Rent," `By Owner" or any
other similar sign for the renting or sale of a Home so long as Declarant owns a Lot in Mussorie
Village at Fiddler's Creek® or so long as Declarant or any of Declarant's affiliates (or any of
their respective successors or assigns) are conducting sales and marketing of Homes in Mussorie
Village at Fiddler's Creek® or other communities developed or marketed by Declarant or its
affiliates, whichever is later. Signs, regardless of size, used by Declarant or a Builder, their
successors or assigns, for advertising and marketing during the Development and Sale Period of
Mussorie Village at Fiddler's Creek® or other communities developed and/or marketed by
Declarant and/or its Affiliates and other signs authorized by Declarant and/or its Affiliates shall
be exempt from these restrictions. Such sign or signs as Declarant and/or its Affiliates and/or a
Builder and/or its Affiliates may be required to erect under the terms of an institutional mortgage
shall be exempt from this restriction. An Owner may display a security sign, provided by a
contractor for security services, as permitted by the HOA Act. This provision may not be
amended without the prior written consent of Declarant. All signs shall also require the approval
of the Foundation. •
1 1. Animals and Pets. No wildlife, livestock, swine, reptiles, insects or poultry of any
kind shall be raised, bred, or kept in any portion of the Property. A reasonable number of dogs,
cats, or other domesticated household pets as determined from time to time by the Foundation or
these Village Covenants may be permitted in any Home. The ability to keep pets is a privilege,
not a right. Pets shall not be permitted to roam free. Any pet, which in the opinion of the
Foundation and/or the Village Association endangers health or safety, makes objectionable
noise, or constitutes an unreasonable source of nuisance or annoyance to the Owners or residents
of other Homes, shall be removed upon request by the Foundation and/or the Village
Association. No pets shall be kept, bred or maintained for any commercial purpose. Pets shall at
all times when they are outside a Home, be carried or confined on a leash held by a responsible
person. Pets shall only be permitted on the Foundation Common Areas and Village Common
Areas if such portions thereof are so designated by the Foundation or Village Association, as
applicable. A person bringing a pet onto the Foundation Common Areas or Village Common
Areas or CDD property shall be responsible for immediately removing any solid waste of the pet.
Pets may not be left unattended or leashed in yards or garages or on porches or lanais. Under no
circumstances will any dog whose breed is noted for its viciousness or ill-temper, in particular,
the "Pit Bull" (as hereinafter defined), Presa Canario, or any crossbreeds of such breeds, be
permitted on any portion of the Property. A "Pit Bull" is defined as any dog that is an American
Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier, or any dog displaying
a majority of the physical traits of any one (1) or more of the above breeds, or any dog exhibiting
those distinguishing characteristics which substantially conform to the standards established by
the American Kennel Club or United Kennel Club for any of the above breeds. No exotic pet or
any animal of any kind which has venom or poisonous defense or capture mechanisms, or if let
4
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loose would constitute vermin, shall be allowed on any portion of the Property. Trained seeing-
eye dogs will be permitted for those persons holding certificates of blindness and necessity.
Other animals will be permitted if such animals serve as physical aides to handicapped persons
and such animals have been trained or provided by an agency or service qualified to provide such
animals. The guide or assistance animal will be kept in direct custody of the assisted person or
the qualified person training the animal at all times when on the Property and the animal shall
wear and be controlled by a harness or orange-colored leash and collar. No pet shall be kept
outside a Home or on any lanai, unless someone is present in the Home. The Owner shall
compensate any person hurt or bitten by his or her pet and shall indemnify the Foundation and
the Village Association and hold them harmless against any loss or liability of any kind or
character whatsoever arising from or growing out of having any animal within the Property. If a
dog or any other animal becomes obnoxious to other Owners by barking or otherwise, the Owner
thereof must cause the problem to be corrected; or, if it is not corrected, the Owner, upon written
notice by the Village Association, will be required to permanently remove the animal from the
Property. All pets must be registered, licensed and inoculated as required by law. The Village
Association will promulgate rules and regulations from time to time designating other rules as
necessary to regulate pets.
12. Clotheslines. No clothesline or clothes drying which is visible from outside a
building shall be undertaken or permitted on any portion of Mussorie Village at Fiddler's
Creek®.
13. Temporary Buildings, Etc. No tents, trailers, shacks or other temporary buildings
or structures shall be constructed or otherwise placed within Mussorie Village at Fiddler's
Creek® except in connection with construction, development, leasing or sales activities
permitted under the Village Covenants or with the prior written consent of the Village
Association and the Foundation. No temporary structure may be used as a residence.
14. Lakes. No docks shall be constructed within or adjacent to a Lake. Owners are
prohibited from using the Lakes for irrigation purposes. Swimming, fishing and watercraft are
prohibited in the Lakes.
15. Fences. No fence of any type, including invisible fencing, is permitted to be
erected on a Lot without the prior written approval of the ARB and the Foundation.
16. Drainage or Utility Easements. No structures, trees or shrubs shall be placed on
any drainage or utility easements, except by Declarant, without the prior written consent of the
Village Association.
17. Additions and Alterations. No Home shall be enlarged by any addition thereto or
to any part thereof, and no Owner shall make any improvement, addition, or alteration to the
exterior of his or her Home, including, without limitation, the painting, staining, or varnishing of
the exterior of the Home, without the prior written approval of the ARB as set forth in the
Village Covenants and the Foundation, which approval may be withheld for purely aesthetic
reasons.
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18. Increase in Insurance Rates. No Owner may engage in any action which may
reasonably be expected to result in an increase in the rate of any insurance policy or policies
covering or with respect to any portion of the Property not owned by such Owner.
19. Mining, Drilling, or Excavation. There shall be no mining, quarrying or drilling
for minerals, oil, gas or otherwise ("Mining Activity") undertaken on the Property. Activities of
Declarant, or the Village Association in dredging, excavating or maintaining drainage or other
facilities or easements shall not be deemed Mining Activities nor will the installation of wells or
pumps for sprinkler systems in compliance with applicable governmental requirements be
deemed a Mining Activity.
20. Maintenance of Property. The Property and Improvements thereon shall be kept
in a good, safe, clean, neat and attractive condition, and all Improvements thereon shall be
maintained in a finished, painted and attractive condition. No weeds, underbrush or other
unsightly growth shall be permitted to grow or remain upon any portion of the Property, no
refuse or unsightly objects shall be allowed to be placed or permitted to remain anywhere
thereon, and no grass on said Property shall be permitted to grow to a height in excess of four
inches (4") for improved property and ten inches (10") for unimproved property. Excepted from
the foregoing shall be all construction debris, refuse, unsightly objects and waste upon any
portion of the Property owned by Declarant or its nominee through the period of construction of
Homes or other Improvements upon the Property. During construction of a Home or other
Improvement upon any portion of the Property, the Owner thereof shall be required to maintain
said property in a clean condition and, except for the initial construction of Homes by Declarant
or its nominee, to provide receptacles for the disposal of trash and rubbish as well as other
construction debris. All such construction debris, refuse, unsightly objects and waste on a
portion of the Property must be removed within thirty (30) days after the completion of
construction of the Improvement on such portion of the Property, as evidenced by issuance of a
certificate of occupancy, if applicable.
Upon the failure of a Owner(s) to (i) maintain the portion of the Property and any
Improvement thereon which such party is responsible to maintain in accordance with the
requirements of the Village Covenants and to the satisfaction of the Village Association and (ii)
correct such deficiencies within fifteen (15) days of written notice by the Village Association,
unless a longer period is authorized by the Village Association, the Village Association may
enter upon such portion of the Property and make such corrections as may be necessary. The
cost of such corrections shall be paid by the Owner who is required to perform such
maintenance. If any Owner(s) fails to make payment within fifteen (15) days after requested to
do so by the Village Association, then the payment requested shall be collected as a Benefited
Assessment from such Owner and the Village Association shall be entitled to lien rights upon
such Lot requiring such maintenance in accordance with the provisions of the Village Covenants.
21. Subdivision and Partition. No Lot on the Property shall be subdivided.
22. Casualty Destruction to Improvements. In the event a Home(s) and/or other
Improvement(s) upon a Lot(s) is damaged or destroyed by casualty, hazard or other loss then,
within a reasonable period of time after such incident, the Owner(s) thereof shall either
commence to rebuild or repair the damaged Home(s) or Improvement(s) upon obtaining ARB
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approval, if required hereunder, diligently continuing such rebuilding or repairing activities to
completion or, upon a determination by the Owner(s) thereof that the Home(s) or
Improvement(s) will not be repaired or replaced, promptly clear the damaged Home(s) or
Improvement(s) and grass over and landscape such Lot(s) as applicable, in a sightly manner
consistent with Declarant's plan for beautification of Mussorie Village at Fiddler's Creek®. Any
damaged or destroyed Home(s) and other Improvements shall only be repaired or replaced with
Home(s) and other Improvements of a similar size and type as those damaged or destroyed and
without substantial alteration from what existed prior to the damage or destruction, unless the
prior written approval of the ARB and the DRC is obtained.
23. Village Common Area. Nothing shall be stored and/or constructed within or
removed from any Village Common Area other than by Declarant, except with the prior written
approval of the Village Association.
24. Lake Maintenance Easement. No Improvement on a Lot shall be placed within a
Lake Maintenance Easement, and any Improvement placed within the Lake Maintenance
Easement shall be removed by Declarant or by the Village Association. The cost of such
removal shall be paid by such Owner(s) as an Individual Expense Assessment.
25. Trucks, Commercial Vehicles, Recreational Vehicles, Motor Homes, Mobile
Homes, Boats, Campers, Trailers and Other Vehicles. Please see Section 8.33 of the Foundation
Declaration for restrictions on vehicles within Fiddler's Creek and the Village. The Foundation
and the Village Association shall have the right to authorize the towing away of any vehicles in
violation of these provisions with the costs to be borne by the owner or violator.
No person, firm or corporation shall maintain or repair any vehicle (including, but not
limited to, four-wheel passenger automobiles) upon any portion of the Property; provided,
however, Declarant its successors, nominees or assigns and the Village Association may make,
or cause to be made, such repairs if necessary in regard to vehicles used in connection with
construction, sales or management at Mussorie Village at Fiddler's Creek®. Vehicles which are
missing one or more wheels, have one or more deflated tires, are not in an operating condition, or
do not have current valid license plates shall not remain upon any portion of the Property for
more than two (2) consecutive days. No Owner or his or her family members, guests, invitees or
lessees or their family members, guests, or invitees shall be permitted to keep any vehicle on the
Property which is deemed to be a nuisance by the Village Association or Declarant.
26. Window Decor. No newspaper, aluminum foil, sheets or other temporary window
treatments shall be permitted, except for periods not exceeding two (2) weeks after an Owner or
a lessee first moves into a Home or when permanent window treatments are being cleaned or
repaired. Window tinting is permitted provided that the type and method of tinting is first
approved by the ARB.
27. Hurricane Shutters. No hurricane shutters may be installed without the prior
written consent of the DRC and the ARB, which consent may be unreasonably withheld. If the
installation of hurricane shutters is made which does not conform with the specifications
approved by the DRC and the ARB, then the hurricane shutters will be made to conform by the
DRC and/or the ARB at the Owner's expense or they shall he removed.
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Approved hurricane shutters shall not be installed or closed, as applicable, before the
issuance of a hurricane watch by the National Hurricane Center encompassing the Mussorie
Village at Fiddler's Creek® location, and shall be promptly removed when the threat of the
storm has passed ("Hurricane Shutter Time Period").
Each Owner who plans to be absent from his or her Home during the hurricane season
must prepare his or her Lot prior to such Owner's departure by (a) removing all furniture, potted
plants and other movable objects from his or her porch, balcony or patio, if any; (b) designating a
responsible firm or individual satisfactory to the Village Association to install and remove
hurricane shutters in accordance with the Hurricane Standards and the Hurricane Shutter Time
Period requirements; and (c) designating a responsible firm or individual satisfactory to the
Village Association to care for the Home should the Home suffer hurricane damage. Such firm
or individual shall contact the Village Association for clearance to install or remove hurricane
shutters pursuant to the Village Covenants.
28. Landscaping, Lawn Decor, and Improvements. No Improvements of any kind
including, without limitation, any building, shed, play structure, basketball hoops, soccer goals,
swing sets, athletic/play equipment, wall, topographical feature, mailbox, landscaping, lawn
sculpture, fence, swimming pool, tennis court or screened enclosure shall be erected, placed or
maintained, and no addition, alteration, modification or change to any such Improvement shall be
made without the prior written approval of the ARB, including, but not limited to, painting the
Home in a color other than the color originally placed by Declarant on the painted surface.
29. Basketball Backboards. No garage, roof mounted, portable or in-ground mounted
basketball backboards are permitted.
30. Water Supply. No individual water supply system for drinking purposes or
household use shall be permitted on any Lot, including for irrigation or sprinkler purposes.
31. Sewage Disposal. No individual sewage disposal system shall be permitted on
the Property.
32. Yard Sales. No yard sales or neighborhood sales shall be permitted on any Lot or
any other area in Mussorie Village at Fiddler's Creek®.
33. Compliance with Village Documents and Foundation Documents. Each Owner
and their family members, guests, invitees, and lessees and their family members, guests and
invitees shall be bound by and abide by the Village Documents and the Foundation Documents.
The conduct of the foregoing parties shall be considered to be the conduct of the Owner
responsible for, or connected in any manner with, such individual's presence within Mussorie
Village at Fiddler's Creek®. Such Owner shall be liable to the Village Association and shall pay
the cost of any maintenance, repair or replacement of any real or personal property located on the
Village Common Area rendered necessary by his or her act, neglect or carelessness, or by that of
any other of the foregoing parties as an Individual Expense Assessment.
8
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34. No Implied Waiver. The failure of the Village Association or Declarant to object
to a Owner's or other party's failure to comply with the covenants or restrictions contained
herein or any other Village Document (including the rules now or hereafter promulgated) shall in
no event be deemed a waiver by Declarant, the Village Association, or of any other party having
an interest in the Property of its right to object to same and to seek compliance in accordance
with the provisions of the Village Documents.
35. Certain Rights of Declarant. The provisions, restrictions, terms and conditions of
these Use Restrictions shall not apply to Declarant as an Owner.
36. Board's Rule-Making Power. The foregoing Use Restrictions shall not be
deemed to be all inclusive nor restrict the right of the Village Association to adopt such
reasonable rules and regulations governing the use of Mussorie Village at Fiddler's Creek® as
the Board may determine from time to time, provided that such rules and regulations: (i) are not
in conflict with the provisions hereof; (ii) apply equally to all lawful residents of Mussorie
Village at Fiddler's Creek® without discriminating on the basis of whether a Home is occupied
by a Owner or his or her lessee; and (iii) for so long as Declarant holds any Homes within
Mussorie Village at Fiddler's Creek® for sale in the ordinary course of its business, have the
prior written approval of Declarant. Declarant has the right to approve any rule or modification
thereof.
9
1 7460589:9
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EXHIBIT "D"
ARTICLES OF INCORPORATION OF
MUSSORIE VILLAGE AT FIDDLER'S CREEK® ASSOCIATION, INC.
17460589:9
16A4
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01 I certify from the records of this office that MUSSORIE VILLAGE AT ,}`j
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`i< FIDDLER'S CREEK ASSOCIATION, INC. is a corporation organized under the ,-.
r •`•. laws of the State of Florida, filed on July 25, 2014. ,,� \
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' The document number of this corporation is N14000006971. r . .,
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I further certify that said corporation has paid all fees due this office
�•,. through December 31, 2014, and its status is active. .. „,,„`.
` • `, I further certify that said corporation has not filed Articles of .. _.f
Dissolution.
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.• , ti authorized by section 15.16, Florida Statutes, and authenticated by the f�f1
~!fir code, 014A00016087-072814-N14000006971-1/1, noted below. ti 1
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{: :: Given under my hand and the gi i%
Great Seal of the State of Florida,
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■ .1, Twenty-eighth day of July, 2014 f ,
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!ily I certify the attached is a true and correct copy of the Articles of e% a
C Incorporation of MUSSORIE VILLAGE AT FIDDLER'S CREEK ASSOCIATION, INC. , a '•! �'
, , Florida corporation, filed on July 25, 2014, as shown by the records of ,�1��ti
-4it. r this office. To7>
:ti .' I further certify the document was electronically received under FAX audit' };
y ; number H14000177116. This certificate is issued in accordance with
` • 1 section 15. 16, Florida Statutes, and authenticated by the code noted below;-{;;
• o• ''' The document number of this corporation is N14000006971. ti'�t>
k • r '. I
,•11_1•• Authentication Code: 014A00016087-072814-N14000006971-1/1 ; ti
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t. Given under my hand and the it
Great Seal of the State of Florida,
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`' Z r Twenty-eighth day of July, 2014
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July 28, 2014
MUSSORIE VILLAGE AT FIDDLER'S CREEK ASSOCIATION, INC.
551 NORTH CATTLEMAN ROAD, SUITE 200
SARASOTA, FL 34232
The Articles of Incorporation for MUSSORIE VILLAGE AT FIDDLER'S CREEK
ASSOCIATION, INC. were filed on July 25, 2014, and assigned document
number N14000006971. Please refer to this number whenever corresponding
with this office.
Enclosed is the certification requested. To be official, the
certification for a certified copy must be attached to the original
document that was electronically submitted and filed under FAX audit
number H14000177116.
To maintain "active" status with the Division of Corporations, an annual
report must be filed yearly between January 1st and May 1st beginning in
the year following the file date or effective date indicated above. It is
your responsibility to remember to file your annual report in a timely
manner.
A Federal Employer Identification Number (FEI/EIN) will be required when
this report is filed. Apply today with the IRS online at:
https://sa.www4.irs.gov/modiein/individual/index.jsp.
Please be aware if the corporate address changes, it is the responsibility
of the corporation to notify this office.
Should you have questions regarding corporations, please contact this
office at (850) 245-6052.
Thomas Chang
Regulatory Specialist II
New Filings Section
Division of Corporations Letter Number: 014A00016087
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ARTICLES OF INCORPORATION
OF
MUSSORIE VILLAGE AT FIDDLER'S CREEK®ASSOCIATION,INC.
(A Florida Corporation Not For Profit)
In order to form a corporation not for profit under and in accordance with the provisions
of Chapters 617 and 720 of the Florida Statutes, the undersigned hereby incorporates this
corporation not for profit for the purposes and with the powers hereinafter set forth and, to that
end,the undersigned,by these Articles of Incorporation, certifies as follows:
ARTICLE I
DEFINITIONS
The following words and phrases when used in these Articles of Incorporation(unless the
context clearly reflects another meaning) shall have the following meanings:
1. "Articles" means these Articles of Incorporation and any amendments hereto.
2. "Assessments" means the assessments for which all Owners are obligated to the
Village Association and includes "Individual Lot Assessments," `Benefited Assessments" and
"Special Assessments" (as such terms are defined in the Village Covenants) and any and all
other assessments which are levied by the Village Association in accordance with the Village
Documents.
3. `Board"means the Board of Directors of the Village Association.
4. `Bylaws" means the Bylaws of the Village Association and any amendments
thereto.
5. "County" means Collier County,Florida.
6. "Declarant" means Taylor Morrison of Florida, Inc., a Florida corporation, and
any successor or assign thereof to which Taylor Morrison of Florida, Inc., a Florida corporation,
specifically assigns all or part of the rights of Declarant under the Village Covenants by an
express written assignment, whether recorded in the Public Records of the County or not. The
written assignment may give notice as to which rights of Declarant are to be exercised and as to
which portion of the Property. In any event, any subsequent declarant shall not be liable for any
default or obligations incurred by any prior declarant, except as may be expressly assumed by the
subsequent declarant.
7. "Director"means a member of the Board.
8. "Home" means a residential dwelling unit constructed or to be constructed within
Mussorie Village at Fiddler's Creek®, which is designed and intended for use and occupancy as
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a single-family residence. The term "Home" shall include the Lot as defined in the Village
Covenants.
9. "HOA Act" means the homeowners' association act, Chapter 720, Florida
Statutes as amended through the date of the Village Covenants amongst the Public Records of
the County.
10. "Member" means a member of the Village Association.
11. "Operating Expenses" means the expenses for which Owners are liable to the
Village Association as described in the Village Covenants and any other Village Documents and
include, but are not limited to: (a)the costs and expenses incurred by the Village Association in
owning, administering, operating, maintaining, financing, or repairing (but not reconstructing,
replacing or improving), the Village Common Area or any portion thereof and Improvements
thereon, all other property owned by the Village Association, and (b) all costs and expenses
incurred by the Village Association in carrying out its powers and duties hereunder or under any
other Village Documents.
12. "Owner" means the record owner, whether one or more persons or entities, of the
fee simple title to any Home within Mussorie Village at Fiddler's Creek®, and includes
Declarant for as long as Declarant owns fee simple title to a Home, but excluding therefrom
those having such interest as security for the performance of an obligation.
13. "Village" or "Mussorie Village at Fiddler's Creek®" means the real property
described in Exhibit"A"to the Village Covenants.
14. "Village Common Area" means all real and personal property, including
easements, which the Village Association owns,holds, leases,or otherwise has a right to possess
or use for the common use and enjoyment of the Owners.
15. "Village Association" means the Mussorie Village at Fiddler's Creek®
Association, Inc., a Florida corporation not for profit. The "Village Association" is NOT a
condominium association and is not intended to be governed by Chapter 718, the Condominium
Act, Florida Statutes.
16. "Village Covenants" means the Declaration of Village Covenants, Conditions and
Restrictions for Mussorie Village at Fiddler's Creek®, which is intended to be recorded amongst
the Public Records of the County,and any amendments thereto.
17. "Village Documents" means in the aggregate the Village Covenants, these
Articles and the Bylaws and all of the instruments and documents referred to therein, including,
but not limited to, any Amendment(s) and Supplemental Declaration(s).
Unless otherwise defined herein, the terms defined in the Village Covenants are
incorporated herein by reference and shall appear in initial capital letters each time such terms
appears in these Articles.
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ARTICLE II
NAla
The name of this corporation shall be MUSSORIE VILLAGE AT FIDDLER'S
CREEK® ASSOCIATION, INC., a Florida corporation not for profit, whose principal address
and mailing address is 551 North Cattlemen Road,Suite 200,Sarasota, Florida 34232.
ARTICLE III
PURPOSES
The purpose for which the Village Association is organized is to take title to, operate,
administer, finance, insure, repair, replace, manage and maintain the Village Common Area in
accordance with the terms of, and purposes set forth in, the Village Documents and to carry out
the covenants and enforce the provisions of the Village Documents.
ARTICLE IV
POWERS
The Village Association shall have the following powers and shall be governed by the
following provisions:
A. The Village Association shall have all of the common law and statutory powers of
a corporation not for profit.
B. The Village Association shall have all of the powers granted to the Village
Association in the Village Documents. All of the provisions of the Village Covenants and
Bylaws which grant powers to the Village Association are incorporated into these Articles.
C. The Village Association shall have all of the powers reasonably necessary to
implement the purposes of the Village Association, including,but not limited to,the following:
1. To perform any act required or contemplated by it under the Village
Documents.
2. To make, establish, amend, abolish (in whole or in part) and enforce
reasonable rules and regulations governing the use of the Village Common Area.
3. To make, levy and collect Assessments for the purpose of obtaining funds
from its Members to pay Operating Expenses and other costs defined in the Village Covenants
and costs of collection, and to use and expend the proceeds of Assessments in the exercise of the
powers and duties of the Village Association.
4. To own, maintain, repair, replace, operate and convey the Village
Common Area in accordance with the Village Documents and to assist in the enforcement of the
Village Covenants.
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5. To enforce by legal means the obligations of the Members and the
provisions of the Village Documents.
6. To employ personnel, retain independent contractors and professional
personnel, and enter into service contracts to provide for the maintenance, operation,
administration, financing, insuring, repairing,replacing and management of the Village Common
Area and to enter into any other agreements consistent with the purposes of the Village
Association, including, but not limited to, agreements with respect to professional management
of the Village Common Area and to delegate to such professional management certain powers
and duties of the Village Association.
7. To enter into the Village Covenants and any amendments thereto and
instruments referred to therein.
8. To provide, to the extent deemed necessary by the Board, any and all
services and do any and all things which are incidental to or in furtherance of things listed above
or to carry out the Village Association mandate to keep and maintain Mussorie Village at
Fiddler's Creek® in a proper and aesthetically pleasing condition and to provide the Owners
with services, amenities, controls, rules and regulations and enforcement which will enhance the
quality of life at Mussorie Village at Fiddler's Creek®.
9. To borrow money and to obtain such financing as is necessary to maintain,
repair and replace the Village Common Area in accordance with the Village Covenants and, as
security for any such loan, to collaterally assign the Village Association's right to collect and
enforce Assessments levied for the purpose of repaying any such loan.
10. Notwithstanding anything contained herein to the contrary, the Village
Association shall be required to obtain the approval of seventy-five percent (75%) of all
Members (at a duly called meeting of the Members at which a quorum is present) prior to the
engagement of legal counsel by the Village Association for the purpose of suing, or making,
preparing or investigating any lawsuit, or commencing any lawsuit other than for the following
purposes:
(a) the collection of Assessments;
(b) the collection of other charges which Owners are obligated to pay
pursuant to the Village Documents;
(c) the enforcement of any applicable use and occupancy restrictions
contained in the Village Documents;
(d) the enforcement of Village Association rules;
(e) the enforcement of a contract entered into by the Village
Association with vendors providing services to the Village Association;
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(f) dealing with an emergency when waiting to obtain the approval of
the Members creates a substantial risk of irreparable injury to the Village Common Area or to
Member(s) (the imminent expiration of a statute of limitations shall not be deemed an emergency
obviating the need for the requisite vote of three-fourths (3/4)of the Members);or
(g) filing a compulsory counterclaim.
The costs of any legal proceedings initiated by the Village Association, which are not
included in the above exceptions shall be financed by the Village Association only with monies
that are collected for that purpose by Special Assessment(s) and the Village Association shall not
borrow money, use reserve funds, or use monies collected for other Association obligations.
ARTICLE V
MEMBERS AND VOTING
The qualification of Members of the Village Association, the manner of their admission
to membership, the manner of the termination of such membership and the manner of voting by
Members shall be as follows:
A. Until such time as the first deed of conveyance of a Home from Declarant to an
Owner is recorded amongst the Public Records of the County ("First Conveyance"), the
membership of the Village Association shall be comprised solely of Declarant. Until the First
Conveyance, Declarant shall be entitled to cast the one(l) and only vote on all matters requiring
a vote of the membership.
B. Upon the First Conveyance, Declarant shall be a Member as to each of the
remaining Homes until each such Home is conveyed to another Owner, and thereupon and
thereafter each and every Owner, including Declarant as to Homes owned by Declarant, shall be
a Member and exercise all of the rights and privileges of a Member.
C. Membership in the Village Association for Owners other than Declarant shall be
established by the acquisition of ownership of fee simple title to a Home as evidenced by the
recording of an instrument of conveyance amongst the Public Records of the County. Where
title to a Home is acquired by conveyance from a party other than Declarant by means of sale,
gift, inheritance, devise, judicial decree or otherwise, the person, persons or entity thereby
acquiring such Home shall not be a Member unless or until such Owner shall deliver a true copy
of a deed or other instrument of acquisition of title to the Village Association.
D. The Village Association shall have two (2)classes of voting membership:
1. "Class A Members" shall be all Members, with the exception of Declarant
while Declarant is a Class B Member, each of whom shall be entitled to one (1) vote for each
Home owned.
2. "Class B Members" shall be Declarant, who shall be entitled to three times
the total number of votes of the Class"A" Members plus one. Class "B" membership shall cease
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and be converted to Class "A" membership upon the earlier to occur of the following events
("Turnover Date"):
(i) Three(3) months after the conveyance of ninety percent (90%)of the
Homes by Declarant, as evidenced by the recording of instruments of conveyance of such Homes
amongst the Public Records of the County;or
(ii) upon the Class `B" Member abandoning or deserting its
responsibility to maintain and complete the amenities or infrastructure as disclosed in the Village
Documents. There is a rebuttable presumption that Declarant has abandoned and deserted the
Property if Declarant has unpaid Assessments or guaranteed amounts under Section 720.308 of
the HOA Act for a period of more than two(2) years;
(iii) upon the Class `B" Member filing a petition seeking protection
under Chapter 7 of the Federal Bankruptcy Code;
(iv) upon the Class `B" Member losing title to the Property through a
foreclosure action or the transfer of a deed in lieu of foreclosure, unless the successor owner has
accepted an assignment of developer rights and responsibilities first arising after the date of such
assignment;
(v) upon a receiver for the Class `B" Member being appointed by a
circuit court and not being discharged within 30 days after such appointment, unless the court
determines within 30 days after such appointment that transfer of control would be detrimental to
the Village Association or the Members;or
(vi) when, in its discretion,the Class `B"Member so determines.
Notwithstanding the foregoing, Class "A" Members are entitled to elect at least
one (1) member of the Board when fifty percent (50%) of the Total Developed Lots have been
conveyed to Members other than Declarant.
On the Turnover Date, Class A Members, including Declarant, shall assume
control of the Village Association and elect not less than a majority of the Board.
E. The designation of different classes of membership are for purposes of
establishing the number of votes applicable to certain Homes, and nothing herein shall be
deemed to require voting solely by an individual class on any matter which requires the vote of
Members, unless otherwise specifically set forth in the Village Documents.
F. No Member may assign, hypothecate or transfer in any manner his or her
membership in the Village Association except as an appurtenance to his or her Home.
G. Any Member who conveys or loses title to a Home by sale, gift, devise, bequest,
judicial decree or otherwise shall, immediately upon such conveyance or loss of title, no longer
be a Member with respect to such Home and shall lose all rights and privileges of a Member
resulting from ownership of such Home.
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H. There shall be only one (1) vote for each Home, except for the Class B Members
as set forth herein. If there is more than one Member with respect to a Home as a result of the
fee interest in such Home being held by more than one person, such Members collectively shall
be entitled to only one (1) vote. The vote of the Owners of a Home owned by more than one
natural person or by a corporation or other legal entity shall be cast by the person named in a
certificate signed by all of the Owners of the Home, or, if appropriate, by properly designated
officers, partners or principals of the respective legal entity("Voting Owner"), and filed with the
Secretary of the Village Association, and such certificate shall be valid until revoked by a
subsequent certificate. If such a certificate is not filed with the Secretary of the Village
Association, the vote of such Home shall not be considered for a quorum or for any other
purpose.
Notwithstanding the foregoing provisions, whenever any Home is owned by a
husband and wife they may, but shall not be required to,designate a Voting Owner. In the event
a certificate designating a Voting Owner is not filed by the husband and wife, the following
provisions shall govern their right to vote:
1. When both are present at a meeting, each shall be regarded as the agent
and proxy of the other for purposes of casting the vote for each Home owned by them. In the
event they are unable to concur in their decision upon any topic requiring a vote, they shall lose
their right to vote on that topic at that meeting, but shall count for purposes of establishing a
quorum.
2. When only one (1) spouse is present at a meeting, the person present may
cast the Home vote without establishing the concurrence of the other spouse, absent any prior
written notice to the contrary by the other spouse. In the event of prior written notice to the
contrary to the Village Association by the other spouse, the vote of said Home shall not be
considered, but shall count for purposes of establishing a quorum.
3. When neither spouse is present, the person designated in a "Proxy" (as
defined in the Bylaws)signed by either spouse may cast the Home vote,when voting by Proxy is
allowed, absent any prior written notice to the contrary to the Village Association by the other
spouse or the designation of a different Proxy by the other spouse. In the event of prior written
notice to the contrary to the Village Association or the designation of a different Proxy by the
other spouse, the vote of said Home shall not be considered, but shall count for purposes of
establishing a quorum.
I. A quorum shall consist of persons entitled to cast at least thirty percent (30%) of
the total number of votes of the Members.
ARTICLE VI
TERM
The term for which this Association is to exist shall be perpetual. In the event of
dissolution of the Village Association(unless same is reinstated), other than incident to a merger
or consolidation, all of the assets of the Village Association shall be conveyed to a similar
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homeowners association or a public agency having a similar purpose, or any Member may
petition the appropriate circuit court of the State of Florida for the appointment of a receiver to
manage the affairs of the dissolved Association and its properties in the place and stead of the
dissolved Association and to make such provisions as may be necessary for the continued
management of the affairs of the dissolved Association and its properties.
ARTICLE VII
.INCORPORATOR
The name and address of the Incorporator of these Articles is: Mark F. Grant, 200 East
Broward Boulevard, Suite 1500,Fort Lauderdale, Florida 33301.
ARTICLE VIII
OFFICERS
The affairs of the Village Association shall be managed by the President of the Village
Association, assisted by the Vice President(s), Secretary and Treasurer, and, if any, by the
Assistant Secretary(ies) and Assistant Treasurer(s), subject to the directions of the Board.
Except for officers elected prior to the Turnover Date, officers must be Members, or the parents,
children or spouses of Members.
The Board shall elect the President, Secretary and Treasurer, and as many Vice
Presidents, Assistant Secretaries and Assistant Treasurers as the Board shall, from time to time,
determine. The President shall be elected from amongst the membership of the Board, but no
other officer need be a Director. The same person may hold two or more offices, the duties of
which are not incompatible;provided,however,the office of President and a Vice President shall
not be held by the same person, nor shall the office of President and Secretary or Assistant
Secretary or Treasurer or Assistant Treasurer be held by the same person.
ARTICLE DC
FIRST OFFICERS
The names of the officers who are to serve until the first election of officers by the Board
are as follows:
President John P.Asher
Vice President Valerie McChesney
Vice President John Steven Kempton
Vice President Tracy Briones
Treasurer Valerie McChesney
Secretary Tracy Briones
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ARTICLE X
BOARD OF DIRECTORS
A. The number of Directors on the first Board of Directors of the Village Association
("First Board") and the "Initial Elected Board" (as hereinafter defined) shall be three (3). The
number of Directors elected by the Members subsequent to the "Declarant's Resignation Event
at the "Initial Election Meeting" (as hereinafter defined) shall be an odd number of no less than
three (3) nor more than seven (7), as the Board shall from time to time determine prior to each
meeting at which Directors are to be elected. Except for Declarant-appointed Directors,
Directors must be Members or the parents, children or spouses or shareholders, members,
officers or directors of Members. There shall be only one(1) vote for each Director.
B. The names and addresses of the persons who are to serve as Directors on the First
Board are as follows:
NAMES ADDRESSES
John P.Asher 551 N.Cattlemen Road,Suite 200
Sarasota,FL 34232
Valerie McChesney 551 N.Cattlemen Road,Suite 200
Sarasota,FL 34232
Tracy Briones 551 N.Cattlemen Road,Suite 200
Sarasota,FL 34232
Declarant reserves the right to replace and/or designate and elect successor Directors to serve on
the First Board for so long as the First Board is to serve, as hereinafter provided.
C. Declarant intends that Mussorie Village at Fiddler's Creek®, if and when
ultimately developed, will contain approximately fifty-four (54) Lots with Homes constructed
thereon (collectively, "Total Developed Lots"). Notwithstanding the foregoing, however,
Declarant has reserved the right in the Village Covenants to modify the Development Plan (as
defined in the Village Covenants) for Mussorie Village at Fiddler's Creek®, to withdraw land
from Mussorie Village at Fiddler's Creek® and to change the number of Homes to be
constructed therein.
D. Upon the Turnover Date, the Members (including Declarant) shall be entitled to
elect all the Directors. The election shall occur at a special meeting of the membership to be
called by the Board for such purpose ("Initial Election Meeting"). The First Board shall serve
until the Initial Election Meeting.
D. The Board shall continue to be so designated and elected, at each subsequent
"Annual Members' Meeting" (as defined in the Bylaws).
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E. A Director (other than a Declarant-appointed Director) may be removed from
office upon the affirmative vote or the agreement in writing of a majority of the voting interests
of Members for any reason deemed to be in the best interests of the Members. A meeting of the
Purchaser Members to so remove a Director(other than a Declarant-appointed Director) shall be
held upon the written request of ten percent (10%) of the Members. Any such recall shall be
effected and a recall election shall be held, if applicable, as provided in the HOA Act.
F. The Initial Election Meeting shall be called by the Village Association through
the Board, within sixty (60) days after the Members other than Declarant are entitled to elect a
majority of Directors as provided in Paragraph C hereof. A notice of meeting shall be forwarded
to all Members in accordance with the Bylaws; provided, however, that the Members shall be
given at least fourteen (14) days' notice of such meeting. The notice shall also specify the
number of Directors which shall be elected by the Members.
G. At the Initial Election Meeting, a "staggered" term of office of the Board shall be
created as follows:
1. a number equal to fifty percent (50%) of the total number of Directors
rounded to the nearest whole number is the number of Directors whose term of office shall be
established at two (2) years and the Directors serving for a two (2) year term will be the
Directors receiving the most votes at the meeting; and
2. the remaining Directors' terms of office shall be established at one (1)
year.
At each Annual Members' Meeting thereafter, as many Directors of the Village
Association shall be elected as there are Directors whose regular term of office expires at such
time, and the term of office of the Directors so elected shall be for two (2) years, expiring when
their successors are duly elected and qualified.
H. The resignation of a Director who has been designated by Declarant or the
resignation of an officer of the Village Association who has been elected by the First Board shall
be deemed to remise, release, acquit, satisfy and forever discharge such officer or Director of and
from any and all manner of action(s), cause(s) of action, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, executions, claims and demands
whatsoever, in law or in equity,which the Village Association or the Members had, now have or
will have or which any personal representative, successor, heir or assign of the Village
Association or the Members hereafter can, shall or may have against said officer or Director for,
upon or by reason of any matter, cause or thing whatsoever from the beginning of the world to
the day of such resignation, except for such Director's or officer's willful misconduct or gross
negligence.
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ARTICLE XI
INDEMNIFICATION
Each and every Director and officer of the Village Association shall be indemnified by
the Village Association against all costs, expenses and liabilities, including attorney and
paralegal fees at all trial and appellate levels and postjudgment proceedings, reasonably incurred
by or imposed upon him or her in connection with any negotiation, proceeding, arbitration,
litigation or settlement in which he or she becomes involved by reason of his/her being or having
been a Director or officer of the Village Association, and the foregoing provision for
indemnification shall apply whether or not such person is a Director or officer at the time such
cost, expense or liability is incurred. Notwithstanding the above, in the event of any such
settlement, the indemnification provisions provided in this Article XI shall not be automatic and
shall apply only when the Board approves such settlement and reimbursement for the costs and
expenses of such settlement as being in the best interest of the Village Association, and in the
event a Director or officer admits that he or she is or is adjudged guilty of willful misconduct or
gross negligence in the performance of his or her duties, the indemnification provisions of this
Article XI shall not apply. The foregoing right of indemnification provided in this Article XI
shall be in addition to and not exclusive of any and all rights of indemnification to which a
Director or officer of the Village Association may be entitled under statute or common law.
ARTICLE XII
BYLAWS
The Bylaws shall be adopted by the First Board, and thereafter may be altered, amended
or rescinded in the manner provided for in the Bylaws. In the event of any conflict between the
provisions of these Articles and the provisions of the Bylaws, the provisions of these Articles
shall control.
ARTICLE XIII
AMENDMENTS
A. Prior to the First Conveyance, these Articles may be amended only by an
instrument in writing signed by Declarant and filed in the Office of the Secretary of State of the
State of Florida.
B. After the First Conveyance, and prior to the Turnover Date, these Articles may be
amended solely by a majority vote of the Board, without the prior written consent of the
Members, at a duly called meeting of the Board.
C. After the Turnover Date,these Articles may be amended in the following manner:
1. (a) The Board shall adopt a resolution setting forth the proposed
amendment and directing that it be submitted to a vote at a meeting of the Members, which may
be at either the Annual Members' Meeting or a special meeting. Any number of proposed
amendments may be submitted to the Members and voted upon by them at one (1) meeting.
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(b) Written notice setting forth the proposed amendment or a summary
of the changes to be effected thereby shall be given to each Member within the time and in the
manner provided in the Bylaws for the giving of notice of meetings.
(c) At such meeting, a vote of the Members shall be taken on the
proposed amendment(s). The proposed amendment(s) shall be adopted upon receiving the
affirmative vote of a majority of the number of Members in the Village Association.
2. An amendment may be adopted by a written statement (in lieu of a
meeting)signed by all Members and all members of the Board setting forth their intention that an
amendment to the Articles be adopted.
D. These Articles may not be amended without the written consent of a majority of
the members of the Board.
E. Notwithstanding any provisions of this Article XIII to the contrary,these Articles
shall not be amended in any manner which shall abridge,prejudice, amend or alter the rights of:
(i) Declarant, without the prior written consent thereto by Declarant, for so long as Declarant
holds either a leasehold interest in or title to at least one (1) Home; and (ii) any "Institutional
Mortgagee" (as such term is defined in the Village Covenants) without the prior written consent
of such Institutional Mortgagee.
F. Notwithstanding the foregoing provisions of this Article XIII to the contrary, no
amendment to these Articles shall be adopted which shall abridge, prejudice, amend or alter the
rights of Declarant hereunder, including, but not limited to, Declarant's right to designate and
select members of the First Board or otherwise designate and select Directors as provided in
Article X hereof, nor shall any other amendment be adopted or become effective without the
prior written consent of Declarant.
G. Any instrument amending these Articles shall identify the particular article or
articles being amended and shall provide a reasonable method to identify the amendment being
made. A certified copy of each such amendment shall be attached to any certified copy of these
Articles, and a copy of each amendment certified by the Secretary of State shall be recorded
amongst the Public Records of the County.
ARTICLE XIV
RE 1St .__! to;t .C._ i . ' i __ IA__. s . ►M.
The street address of the initial registered office of the Village Association is 1200 South
Pine Island Road, Plantation, FL 33324, and the initial registered agent of the Village
Association at that address shall be NRAI Services,Inc.
IN WITNESS WHEREOF, the Incorporator has hereunto affixed his signature, this 25th
day of July,2014.
MARK F.GRANT,Incorporator
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The undersigned hereby accepts the designation of Registered Agent as set forth in
Article XIV of these Articles of Incorporation,and acknowledges that he/she is familiar with and
accepts the obligations imposed upon registered agents under the Florida Not For Profit
Corporation Act.
REGISTERED AGENT:
NRAI SERVICES,INC.
By: " '.�+.r;r V �•
Dated: 7/25/2014
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EXHIBIT "E"
BYLAWS
OF
MUSSORIE VILLAGE AT FIDDLER'S CREEK® ASSOCIATION, INC.
Section 1. Identification of Association
These are the Bylaws of Mussorie Village at Fiddler's Creek® Association, Inc. ("Village
Association") as duly adopted by its Board of Directors ("Board"). The Village Association is a
corporation not for profit, organized pursuant to Chapters 617 and 720, Florida Statutes.
1.1. The principal office and mailing address of the Village Association shall be for
the present at 55 I North Cattlemen Road,Suite 200, Sarasota, Florida 34232,and thereafter may be
located at any place designated by the Board.
1.2. The fiscal year of the Village Association shall be the calendar year.
1.3. The seal of the Village Association shall bear the name of the Village
Association, the word "Florida" and the words "Corporation Not For Profit."
Section 2. Explanation of Terminology
The terms defined in the Articles of Incorporation of the Village Association ("Articles") as
well as in the Declaration of Village Covenants,Conditions,Restrictions and Easements for Mussorie
Village at Fiddler's Creek® ("Village Covenants") are incorporated herein by reference and shall
appear in initial capital letters each time such terms appear in these Bylaws.
Section 3. Membership; Members' Meetings; Voting and Proxies
3.1. The qualification of Members, the manner of their admission to membership in
the Village Association, the manner of termination of such membership and the voting by Members
shall be as set forth in the Articles.
3.2. The Members shall meet annually("Annual Members'Meeting").The Annual
Members' Meeting shall be held at the office of the Village Association or at such other place in the
County as the Board may determine and on such day and at such time as designated by the Board in
the notice of such meeting commencing with the year following the year in which the Articles are filed
with the Secretary of State. The purpose of the Annual Members'Meeting shall be to hear reports of
the officers. elect members of the Board (when that shall be appropriate as determined by the
provisions of the Articles)and transact any other business authorized to be transacted at such Annual
Members' Meeting.
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3.3. Special meetings (meetings other than the Annual Members' Meeting) of the
Members shall be held at any place within the County whenever called by the President or Vice
President or by a majority of the Board. A special meeting must be called by such President or Vice
President upon receipt of a written request from Members having the right to vote at least one-third
(1/3) of the total number of votes entitled to be cast by Members at any such special meeting.
3.4. Except as otherwise provided in the Articles, a written notice of each
Members' meeting, whether an Annual Members' Meeting or a special meeting (collectively
"Meeting"), shall be given to each Member entitled to vote thereat at the address of the Home owned
by such Owner, or such other address as the Owner shall notify the Village Association of in writing
and shall be mailed to the said address not less than fourteen(14) days nor more than forty-five (45)
days prior to the date of the Meeting. Proof of such mailing shall be given by the affidavit of the
person giving the notice. Any notice given hereunder shall state the time and place of the Meeting
and the purposes for which the Meeting is called. The notices of all Annual Members' Meetings shall,
in addition, specify the number of Directors of the Village Association to be designated by Declarant
and the number of Directors to be elected by the Members, if applicable. Notwithstanding any
provisions hereof to the contrary, notice of any Meeting may be waived before, during or after such
Meeting by a Member or by the person entitled to vote for such Member by signing a document
setting forth the waiver of such notice.
3.5. The Members may, at the discretion of the Board, act by written response in
lieu of a Meeting provided written notice of the matter or matters to be agreed upon is given to the
Members or duly waived in accordance with the provisions of these Bylaws. Unless some greater
number is required under the Mussorie Village at Fiddler's Creek®Documents and except as to the
election of Directors, which shall be accomplished by plurality vote, the decision of a majority of the
votes cast by Members as to the matter or matters to be agreed or voted upon shall be binding on the
Members provided a quorum is either present at such Meeting or submits a response if action is taken
by written response in lieu of a Meeting, as the case may be. The notice with respect to actions to be
taken by written response in lieu of a Meeting shall set forth the time period during which the written
responses must be received by the Village Association.
3.6. (a) A quorum of the Members shall consist of Members entitled to cast
thirty percent (30%) of the total number of votes of the Members. Limited "Proxies" and general
"Proxies" (as hereinafter defined in Paragraph 3.10) may be used to establish a quorum.
(b) When a quorum is present at any Meeting and a question which raises
the jurisdiction of such Meeting is presented, the holders of a majority of the voting rights present in
person or represented by written Proxy shall be required to decide the question. However, if the
question is one upon which a vote other than the majority vote of a quorum is required by express
provision of the Mussorie Village at Fiddler's Creek® Documents or by law, then such express
provision shall govern and control the required vote on the decision of such question.
3.7. At any Annual Members' Meeting when elections of Directors are to occur,
written ballots are to be supplied to Members for such purposes. The Board shall adopt a procedure
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to be followed for each election, which procedure shall specify if nominations for Directors shall be
submitted before the meeting so that absentee ballots may be used or if nominations for Directors will
be taken at the Meeting and in which case absentee ballots may not be used. Any procedure adopted
by the Board shall require the use of secret ballots. Members may not vote for Directors by Proxy
but Proxies may be used to establish a quorum. Furthermore, at any Annual Members' Meeting at
which Directors are to be elected, the "Chairman" (as hereinafter defined in Paragraph 7.2) shall
appoint an"Election Committee"consisting of three(3)Members to supervise the election,count and
verify ballots, disqualify votes if such disqualification is justified under the circumstances and certify
the results of the election to the Board. The Election Committee shall be able to determine questions
within its jurisdiction by plurality vote of all three (3) members, but matters resulting in deadlocked
votes of the Election Committee shall be referred to the entire Board for resolution.
3.8. If a quorum is not in attendance at a Meeting, the Members who are present,
either in person or by Proxy, may adjourn the Meeting from time to time until a quorum is present
with no further notice of such adjourned Meeting being required unless otherwise determined by the
Board.
3.9. Minutes of all Meetings shall be kept in a businesslike manner and be available
for inspection by the Members and Directors at all reasonable times. The Village Association shall
retain minutes for at least seven (7) years subsequent to the date of the meeting the minutes reflect.
3.10. Voting rights of Members shall be as stated in the Articles with respect to the
election of all Boards other than the First Board. Such votes may be cast in person or by Proxy
(except for the election of Directors). Proxies may also be used to vote on other agenda items at
meetings at which Directors are to be elected, and may also be used to establish a quorum. "Proxy"is
defined to mean an instrument containing the appointment of a person who is substituted in the place
and stead of the person or authorized representative of an entity entitled to vote. Proxies shall be in
writing signed by the person or authorized representative of an entity giving the same and shall be
valid only for the particular Meeting designated therein and, if so stated in the Proxy, any
adjournments thereof,provided,however, any proxy automatically expires ninety(90)days after the
date of the meeting for which it was originally given. A Proxy must be filed with the Secretary of the
Village Association before the appointed time of the Meeting in order to be valid. Any Proxy may be
revoked prior to the time a vote is cast in accordance with such Proxy.
3.11. The voting on any matter at a Meeting shall be by secret ballot upon request of
the holders of twenty percent (20%) of the votes represented at such Meeting and entitled to be cast
on such matter, if such request is made prior to the vote in question.
3.12. Voting at Foundation Meetings. Pursuant to the Foundation Documents and
the Village Covenants, the Board shall designate a "Voting Representative" (as defined in the
Foundation Declaration) to represent the Owners at Foundation meetings and cast the votes of all
Owners within the Village Association as provided for in the Foundation Declaration and the Village
Covenants.
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Section 4. Board; Directors' Meetings
4.1. The business and administration of the Village Association shall be by its
Board.
4.2. The election and, if applicable, designation of Directors shall be conducted in
accordance with the Articles. Except for Declarant-appointed Directors, Directors must be Members
or the parents, children or spouses of Members except that if a Lot is owned by an entity and not an
individual, such entity may only appoint a partner,shareholder, member, manager,director or officer
of such entity or any of its constituent entities on its behalf to be eligible to serve on the Board.
4.3. (a) Any person elected or designated as a Director shall have all the rights,
privileges, duties and obligations of a Director of the Village Association.
(b) The term of a Director's service shall be as stated in the Articles and,if
not so stated, shall extend until the next Annual Members' Meeting and thereafter until his or her
successor is duly elected and qualified or until he or she resigns or is removed in the manner
elsewhere provided.
4.4. The organizational meeting of a newly elected Board shall be held within ten
(10) days of its election at such place and time as shall be fixed by the Directors at the meeting at
which they were elected. Provided the organizational meeting is held directly following the Annual
Members' Meeting, no further notice of the organizational meeting shall be necessary; if not,
however, notice of the organizational meeting shall be given in accordance with the HOA Act.
4.5. Regular meetings of the Board may be held at such times and places in the
County as shall be determined from time to time by a majority of the Directors. Special meetings of
the Board may be called at the discretion of the President or the Vice President. Special meetings
must be called by the Secretary at the written request of at least one-third(1/3)of the Directors. Any
such special meeting may be held in the County at such time and place as determined by the Directors
requesting such meeting or in such other place as all of the Directors shall agree upon.
4.6. Notice of the time and place of regular and special meetings of the Board, or
adjournments thereof, shall be given to each Director personally,by mail,telephone or electronically
transmitted if correctly directed to an electronic mail address at which the Director has consented to
receive notice at least three (3) days prior to the day named for such meeting unless such notice is
waived before, during or after such meeting. Any Director may waive notice of the meeting in
writing before,during or after a meeting and such waiver shall be deemed equivalent to the receipt of
notice by such Director.
4.7 Notice of all Board meetings shall be given to the members in accordance with
the HOA Act.
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4.8. A quorum of the Board shall consist of the Directors entitled to cast a majority
of the votes of the entire Board. Matters approved by a majority of the Directors present at a meeting
at which a quorum is present shall constitute the official acts of the Board, except as may be
otherwise specifically provided by law, by the Articles or elsewhere herein. If at any meeting of the
Board there shall be less than a quorum present, the majority of those present may adjourn the
meeting from time to time until a quorum is present. At any meeting that takes place on account of a
previously adjourned meeting, any business which might have been transacted at the meeting as
originally called may be transacted. In the case of the adjournment of a meeting,no further notice of
the adjourned meeting need be given unless otherwise determined by the Board.
4.9. The presiding officer at all Board meetings shall be the President. In the
absence of the President, the Directors shall designate any one of their number to preside.
4.10. Directors' fees, if any, shall be determined by the Members.
4.11. Minutes of all meetings of the Board shall be kept in a businesslike manner and
be available for inspection by Members and Directors at all reasonable times.
4.12. Meetings of the Board shall be open to all Members on such terms as the
Board may determine but at all times pursuant to, and as limited by, the HOA Act. The Board may
also hold closed meetings to the extent permitted by applicable law, including,by way of example but
not by way of limitation, when the discussion at a meeting is governed by attorney-client privilege.
Members shall have the right to participate in meetings with reference to all designated agenda items
in accordance with, and as limited by, the HOA Act and any rules and regulations promulgated by the
Village Association. In the event a Member conducts himself or herself in a manner detrimental to the
carrying on of the meeting, then any Director may expel said Member from the meeting by any
reasonable means which may be necessary to accomplish said Member's expulsion.Also,any Director
shall have the right to exclude from any meeting of the Board any person who is not able to provide
sufficient proof that he or she is a Member or a duly authorized representative,agent or proxy holder
of a Member, unless said person has been specifically invited by any of the Directors to participate in
such meeting.
4.13. Any action required or permitted to be taken at a meeting of the Directors may
be taken without a meeting if a consent in writing, specifically setting forth the action to be taken,
shall be signed by all the Directors entitled to vote with respect to the subject matter thereof and such
consent shall have the same force and effect as a unanimous vote of the Directors,provided,however,
whenever assessments are to be considered,they may be considered only at a meeting of the Directors
properly noticed in accordance with the BOA Act.
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Section 5. Powers and Duties of the Board
5.1. All of the powers and duties of the Village Association shall be exercised by
the Board. Such powers and duties of the Board shall include, but not be limited to, all powers and
duties set forth in the Mussorie Village at Fiddler's Creek®Documents, as well as all of the powers
and duties of a director of a corporation not for profit not inconsistent therewith.
5.2. The Village Association may employ a manager to perform any of the duties,
powers or functions of the Village Association. Notwithstanding the foregoing, the Village
Association may not delegate to the manager the power to conclusively determine whether the Village
Association should make expenditures for capital additions or improvements chargeable against the
Village Association funds. The members of the Board shall not be personally liable for any omission
or improper exercise by the manager of any duty,power or function delegated to the manager by the
Village Association.
Section 6. Late Fees
An Owner who fails to timely pay any Assessment shall be charged a late charge of
Twenty-Five and No/100 ($25.00) Dollars or five percent (5%) of the past due amount, whichever is
greater, by the Village Association to defray additional collection costs. This amount is subject to
change in the Board's sole discretion. Owners shall be responsible to pay all legal fees(including,but
not limited to, attorney and paralegal fees and court costs) incurred in connection with the collection
of late Assessments whether or not an action at law to collect said Assessments and foreclose the
Village Association's lien has been commenced.
Section 7. Officers of the Village Association
7.1. Executive officers of the Village Association shall be the President, who shall
be a Director, one or more Vice Presidents,a Treasurer and a Secretary,all of whom shall be elected
annually by the Board. Any officer may be removed without cause from office by vote of the
Directors at any meeting of the Board. The Board may, from time to time, elect such other officers
and assistant officers and designate their powers and duties as the Board shall find to be required to
manage the affairs of the Village Association. One person may hold any two offices simultaneously,
except when the functions of such offices are incompatible, but no person shall hold the office of
President and any of the following offices simultaneously: Vice President, Secretary or Assistant
Secretary or Treasurer or Assistant Treasurer.
7.2. The President shall be the chief executive officer of the Village Association. He
or She shall have all of the powers and duties which are usually vested in the office of the President of
an association or a corporation not for profit, including,but not limited to, the power to appoint such
committees from among the Members at such times as he or she may, in his or her discretion,
determine appropriate to assist in the conduct of the affairs of the Village Association. If in
attendance, the President ("Chairman") shall preside at all meetings of the Board and the Members;
provided, however, that the President may appoint a substitute. The President, or his delegate, shall
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serve as the Village Association's representative to the Master Association,for voting and attendance
purposes at the Master Association meetings.
7.3. In the absence or disability of the President, the Vice President shall exercise
the powers and perform the duties of the President. If there is more than one(1) Vice President,the
Board shall designate which Vice President is to perform which duties. The Vice President(s) shall
also generally assist the President and exercise such other powers and perform such other duties as
shall be prescribed by the Board. In the event there shall be more than one Vice President elected by
the Board, then they shall be designated as "First Vice President", "Second Vice President",etc.,and
shall exercise the powers and perform the duties of the presidency in such order.
7.4. The Secretary shall keep the minutes of all meetings of the Board and the
Members, which minutes shall be kept in a businesslike manner and be available for inspection by
Members and Directors at all reasonable times. The Secretary shall have custody of the seal of the
Village Association and affix the same to instruments requiring such seal when duly authorized and
directed to do so. The Secretary shall be custodian for the corporate records of the Village
Association,except those of the Treasurer, and shall perform all of the duties incident to the office of
Secretary of the Village Association as may be required by the Board or the President. The Assistant
Secretary, if any, shall perform the duties of the Secretary when the Secretary is absent and shall assist
the Secretary under the supervision of the Secretary.
7.5. The Treasurer shall have custody of all of the monies of the Village
Association, including funds, securities and evidences of indebtedness. The Treasurer shall keep the
assessment rolls and accounts of the Members and shall keep the books of the Village Association in
accordance with good accounting practices and he or she shall perform all of the duties incident to the
office of the Treasurer. The Assistant Treasurer, if any, shall perform the duties of the Treasurer
when the Treasurer is absent and shall assist the Treasurer under the supervision of the Treasurer.
7.6. The compensation, if any, of the officers and other employees of the Village
Association shall be fixed by the Board. This provision shall not preclude the Board from hiring a
Director as an employee of the Village Association or preclude contracting with a Director or a party
affiliated with a Director for the management or performance of contract services for all or any part
of the Mussorie Village at Fiddler's Creek®.
Section 8. Resignations
Any Director or officer may resign his or her post at any time by written resignation,
delivered to the President or Secretary, which shall take effect upon its receipt unless a later date is
specified in the resignation, in which event the resignation shall be effective from such date unless
withdrawn. The acceptance of a resignation shall not be required to make it effective. The
conveyance of all Homes owned by any Director or officer(other than appointees of Declarant) shall
constitute a written resignation of such Director or officer.
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Section 9. Accounting Records; Fiscal Management
9.1. The Village Association shall prepare financial reports and maintain accounting
records in accordance with the HOA Act. The accounting records of the Village Association shall be
open to inspection by Members and Institutional Mortgagees or their respective authorized
representatives at reasonable times and in accordance with,but subject to the limitations of,the HOA
Act. Such authorization as a representative of a Member must be in writing and signed by the person
giving the authorization and dated within sixty(60) days of the date of the inspection. Such records
shall include, but not be limited to: (i) a record of all receipts and expenditures; (ii) an account for
each Home within Mussorie Village at Fiddler's Creek®which shall designate the name and address
of the Owner thereof, the amount of Individual Lot Assessments and all other Assessments, if any,
charged to the Home, the amounts and due dates for payment of same, the amounts paid upon the
account and the dates paid, and the balance due;(iii) any tax returns, financial statements and financial
reports of the Village Association; and (iv) any other records that identify, measure, record or
communicate financial information.
9.2. The Board shall adopt a Budget (as defined and provided for in the Village
Covenants)of the anticipated Operating Expenses for each forthcoming calendar year(the fiscal year
of the Village Association being the calendar year) at a special meeting of the Board ("Budget
Meeting") called for that purpose to be held prior to the end of the fiscal year preceding the year to
which the Budget applies. Prior to the Budget Meeting, a proposed Budget for the Operating
Expenses shall be prepared by or on behalf of the Board. Within thirty(30)days after adoption of the
Budget, a copy thereof shall be furnished to each Member, upon request, and each Owner shall be
given notice of the Individual Lot Assessment applicable to his or her Home(s). The copy of the
Budget, if requested, shall be deemed furnished and the notice of the Individual Lot Assessment shall
be deemed given upon its delivery or upon its being mailed to the Owner at the address of the Home
owned by such Owner, or such other address as the Owner shall notify the Village Association of in
writing.
9.3. In administering the finances of the Village Association, the following
procedures shall govern: (i) the fiscal year shall be the calendar year; (ii) any monies received by the
Village Association in any calendar year may be used by the Village Association to pay expenses
incurred in the same calendar year; (iii) there shall be apportioned between calendar years on a pro
rata basis any expenses which are prepaid in any one calendar year for Operating Expenses which
cover more than such calendar year; (iv) Assessments shall be made quarterly in advance in amounts
no less than are required to provide funds in advance for payment of all of the anticipated current
Operating Expenses and for all unpaid Operating Expenses previously incurred; and (v) items of
Operating Expenses incurred in a calendar year shall be charged against income for the same calendar
year regardless of when the bill for such expenses is received. Notwithstanding the foregoing, the
Assessments for Operating Expenses and any periodic installments thereof shall be of sufficient
magnitude to insure an adequacy and availability of cash to meet all budgeted expenses in any
calendar year as such expenses are incurred in accordance with the accrual basis method of
accounting.
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9.4. Individual Lot Assessments shall be payable as provided in the Village
Covenants.
9.5. No Board shall be required to anticipate revenue from Assessments or expend
funds to pay for Operating Expenses not budgeted or which shall exceed budgeted items, and no
Board is required to engage in deficit spending. Should there exist any deficiency which results from
there being greater Operating Expenses than monies from Assessments, then such deficits shall be
carried into the next succeeding year's Budget as a deficiency or shall be the subject of a Special
Assessment or an upward adjustment to the Individual Lot Assessment.
9.6. The depository of the Village Association shall be such bank or banks as shall
be designated from time to time by the Board in which the monies of the Village Association shall be
deposited. Withdrawal of monies from such account shall be only by checks signed by such persons as
are authorized by the Board.
9.7. A report of the accounts of the Village Association shall be made in
compliance with the financial reporting requirements set forth in Chapter 720, Florida Statutes.
Section 10. Rules and Regulations
The Board may at any meeting of the Board adopt rules and regulations or amend, modify or
rescind then existing rules and regulations for the operation of Mussorie Village at Fiddler's Creek®;
provided,however,that such rules and regulations are not inconsistent with the terms or provisions of
the Mussorie Village at Fiddler's Creek® Documents. Copies of any rules and regulations
promulgated, amended or rescinded shall be mailed or delivered to all Members at the last known
address for such Members as shown on the records of the Village Association at the time of such
delivery or mailing and shall not take effect until forty-eight (48)hours after such delivery or mailing,
or, in the event both forms of notification are used, whichever is later. Notwithstanding the
foregoing, when rules and regulations are to regulate the use of a specific portion of the Village
Association Property, same shall be conspicuously posted at such facility and such rules and
regulations shall be effective immediately upon such posting. Care shall be taken to insure that posted
rules and regulations are conspicuously displayed and easily readable and that posted signs or
announcements are designed with a view toward protection from weather and the elements. Posted
rules and regulations which are torn down or lost shall be promptly replaced.
Section 11. Parliamentary Rules
The then latest edition of Robert's Rules of Order shall govern the conduct of all meetings of
the Members and the Board; provided, however, if such rules of order are in conflict with any of the
Mussorie Village at Fiddler's Creek® Documents, Robert's Rules of Order shall yield to the
provisions of such instrument.
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Section 12. Roster of Owners
Each Owner shall file with the Village Association a copy of the deed or other document
showing his or her ownership of a Lot in Mussorie Village at Fiddler's Creek®. The Village
Association shall maintain such information. The Village Association may also maintain the electronic
mailing addresses and numbers designated by Owners for receiving notices sent by electronic
transmission of those Owners consenting to receive notice by electronic transmission. The electronic
mailing address and numbers provided by Owners to receive notice by electronic transmission shall be
removed from Association records when consent to receive notice by electronic transmission is
revoked. The Village Association may rely on the accuracy of such information for all purposes until
notified in writing of changes therein.
Section 13. Amendment of the Bylaws
13.1. These Bylaws may be amended as hereinafter set forth in this Section 13.
13.2. After the Turnover Date, any Bylaw of the Village Association may be
amended or repealed, and any new Bylaw of the Village Association may be adopted by either:
(i) a majority vote of the Members at any Annual Members'Meeting or any
special meeting of the Members called for that purpose or by majority action of the Members who
have acted by written response in lieu of a Meeting as permitted by these Bylaws; or
(ii) by the affirmative vote of a majority of the Directors then in office at any
regular meeting of the Board or at any special meeting of the Board called for that purpose or by
written instrument signed by all of the Directors as is permitted by these Bylaws, provided that the
Directors shall not have any authority to adopt, amend or repeal any Bylaw if such new Bylaw or
such amendment or the repeal of a Bylaw would be inconsistent with any Bylaw previously adopted
by the Members.
13.3. Notwithstanding any of the foregoing provisions of this Section 13 to the
contrary, until the Turnover Date, all amendments or modifications to these Bylaws and adoption or
repeal of Bylaws shall only be made by action of the First Board as described in the Articles, which
First Board shall have the power to amend, modify, adopt and repeal any Bylaws without the
requirement of any consent, approval or vote of the Members.
13.4. Notwithstanding the foregoing provisions of this Section 13,there shall be no
amendment to these Bylaws which shall abridge,prejudice,amend or alter the rights of: (i)Declarant,
without the prior written consent thereto by Declarant for so long as Declarant holds title to at least
one (1) Home; or (ii) any Institutional Mortgagee without the prior written consent of such
Institutional Mortgagee.
13.5. Any instrument amending, modifying, repealing or adding Bylaws shall identify
the particular section or sections affected and give the exact language of such modification,
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amendment or addition or of the provisions repealed. A copy of each such amendment,modification,
repeal or addition attested to by the Secretary or Assistant Secretary of the Village Association shall
be recorded amongst the Public Records of the County.
Section 14. Mediation
Pursuant to the HOA Act, mandatory mediation before the Department of Business and
Professional Regulation ("Department") shall be required prior to institution of court litigation for
disputes involving certain actions or inactions, as described therein.
Section 15. Recall of Board Members and Election Disputes
Pursuant to the HOA Act, mandatory binding arbitration before the Department shall be
required for election disputes and disputes involving the recall of any member of the Board. Any
member of the Board may be recalled and removed from office as provided for and described in the
HOA Act.
•
Section 16. Interpretation
In the case of any conflict between the Articles and these Bylaws, the Articles shall
control;and in the case of any conflict between the Village Covenants and these Bylaws, the Village
Covenants shall control; and in the event of any conflict between the Articles and the Village
Covenants, the Village Covenants shall control.
Section 17. Notice and Hearing Procedure.
In those instances which specifically provide an Owner the right of Notice and a
Hearing, the following procedures and provisions shall apply:
A. Notice. The Village Association shall notify the Owner in writing of the
noncompliance and set forth the corrective action to be taken. A fine or suspension of use rights may
not be imposed without notice of at least fourteen (14) days to the Owner sought to be fined or
suspended and an opportunity for a hearing before a committee of at least three (3) members
appointed by the Board who are not officers, directors, or employees of the Village Association, or
the spouse, parent, child, brother or sister of an officer, director, or employee of the Village
Association. If the committee, by majority vote, does not approve a proposed fine or suspension, it
may not be imposed. At the Village Association's option, any fine may be levied on a daily basis in the
event of a continuing violation without the necessity of a new hearing and without any limitation on
the amount of such fine.
B. Hearing. Should the Owner still be in noncompliance,the noncompliance shall
be presented to the Board after which the Board shall hear reasons why a fine should or should not be
imposed. A written decision of the Board shall be submitted to the Owner, as applicable, not later
than twenty-one (21) days after said meeting.
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C. Payment. A fine shall be paid not later than thirty(30)days after notice of the
imposition of the fine.
D. Fines. A fine shall be treated as an Assessment subject to the provisions of the
collection of Assessments as otherwise set forth herein. All monies received from fines shall be
allocated as directed by the Board, subject always to the provisions of the Declaration.
E. Failure to Pay Assessments. Notice and Hearing as provided in Subparagraphs
A and B above shall not be required with respect to the imposition of suspension of use rights or fines
upon any Owner because of such Owner's failure to pay Assessments or other charges when due.
F. Access. Suspension of use rights to Common Areas shall not impair the right
of an Owner or tenant of a Lot and/or Home to have vehicular and pedestrian ingress to and egress
from such Lot and/or Home, including, but not limited to, the right to park.
The foregoing Bylaws of Mussorie Village at Fiddler's Creek® Association, Inc.,
were adopted by the Board of Directors as of the date of filing the Articles of
Incorporation for the Village Association.
12
17460974:3
ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP
TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO 6 A 4
THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE
Print on pink paper. Attach to original document. The completed routing slip and original documents are to be forwarded to the County Attorney Office
at the time the item is placed on the agenda. All completed routing slips and original documents must be received in the County Attorney Office no later
than Monday preceding the Board meeting.
Complete routing lines#I through#2 as appropriate for additional signatures,dates,and/or information needed. If the document is already complete with the
exception of the Chairman's signature,draw a line through routing lines#I through#2,complete the checklist,and forward to the County_Attorney Office.
Route to Addressee(s) (List in routing order) Office Initials Date
1.
2.
3. County Attorney Office County Attorney Office ‘6/ 1(N
4. BCC Office Board of County TV\C\L-
� � �
Commissioners V`\VS 1 ,\. , \�
5. Minutes and Records Clerk of Court's Office
--Vii\ I cA l(f L CZ:V4pm
PRIMARY CONTACT INFORMATION
Normally the primary contact is the person who created/prepared the Executive Summary. Primary contact information is needed in the event one of the
addressees above,may need to contact staff for additional or missing information.
Name of Primary Staff John Houldswo Phone Number x-5757
Contact/ Department
Agenda Date Item was July 8,2014 Agenda Item Number 16-A4
Approved by the BCC
Type of Document Construction& Maintenance Agreement Number of Original Two
Attached and Bond —Mussorie Village at Fiddler's Documents Attached
Creek
PO number or account
number if document is
to be recorded
INSTRUCTIONS & CHECKLIST
Initial the Yes column or mark"N/A" in the Not Applicable column, whichever is Yes N/A(Not
appropriate. (Initial) Applicable)
1. Does the document require the chairman's original signature? JH
2. Does the document need to be sent to another agency for additional signatures? If yes, JH
provide the Contact Information(Name;Agency;Address;Phone)on an attached sheet.
3. Original document has been signed/initialed for legal sufficiency. (All documents to be JH
signed by the Chairman, with the exception of most letters,must be reviewed and signed
by the Office of the County Attorney.
4. All handwritten strike-through and revisions have been initialed by the County Attorney's N/A
Office and all other parties except the BCC Chairman and the Clerk to the Board
5. The Chairman's signature line date has been entered as the date of BCC approval of the JH
document or the final negotiated contract date whichever is applicable.
6. "Sign here"tabs are placed on the appropriate pages indicating where the Chairman's
signature and initials are required.
7. In most cases(some contracts are an exception),the original document and this routing slip
should be provided to the County Attorney Office at the time the item is input into SIRE.
Some documents are time sensitive and require forwarding to Tallahassee within a certain
time frame or the BCC's actions are nullified. Be aware of your deadlines! ,
8. The document was approved by the BCC on July 8,2014 and all changes made
during the meeting have been incorporated in the attached document. The County
Attorney's Office has reviewed the changes,if applicable. •
9. Initials of attorney verifying that the attached document is the version approved by the
BCC,all changes directed by the BCC have been made,and the document is ready for t �
Chairman's signature.
I:Forms/County Forms/BCC Forms/Original Documents Routing Slip WWS Original 9.03.04,Revised 1.26.05,Revised 2.24.05;Revised 11/30/12
16A4
CONSTRUCTION AND MAINTENANCE AGREEMENT FOR SUBDIVISION IMPROVEMENTS
THIS CONSTRUCTION AND MAINTENANCE AGREEMENT FOR SUBDIVISION IMPROVEMENTS
entered into this38tt day of (-1144 , 2014 between Taylor Morrison of Florida, Inc.,
hereinafter referred to as "Develop r", and the Board of County Commissioners of Collier
County, Florida, hereinafter referred to as the "Board".
RECITALS:
A. Developer has, simultaneously with the delivery of this Agreement, applied for the
approval by the Board of certain plat of a subdivision to be known as: Mussorie Village
at Fiddlers Creek.
B. Chapters 4 and 10 of the Collier County Land Development Code requires the Developer
to post appropriate guarantees for the construction of the improvements required by
said subdivision regulations, said guarantees to be incorporated in a bonded agreement
for the construction of the required improvements.
NOW, THEREFORE, in consideration of the foregoing premises and mutual covenants
hereinafter set forth, Developer and the Board do hereby covenant and agree as follows:
1. Developer will cause to be constructed: Roadway, drainage, water&sewer Improvements
within 12 months from the date of approval of said subdivision plat, said improvements
hereinafter referred to as the required improvements.
2. Developer herewith tenders its subdivision performance security (attached hereto as
Exhibit "A" and by reference made a part hereof) in the amount of$ 166,617.99 -which
amount represents 10% of the total contract cost to complete the construction plus
100% of the estimated cost to complete the required improvements at the date of this
Agreement.
2. In the event of default by the Developer or failure of the Developer to complete such
improvements within the time required by the Land Development Code, Collier may call
upon the subdivision performance security to insure satisfactory completion of the
required improvements.
4. The required improvements shall not be considered complete until such a statement of
substantial completion by Developer's engineer along with the final project records
have been furnished to be reviewed and approved by the County Manager or his
designee for compliance with the Collier County Land Development Code.
5. The County Manager or his designee shall, within sixty (60) days of receipt of the
statement of substantial completion, either: a) notify the Developer in writing of his
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. . . 16A 4
preliminary approval of the improvements; or b) notify the Developer in writing of his
refusal to approve improvements, therewith specifying those conditions which the
Developer must fulfill in order to obtain the County Manager's approval of the
improvements. However, in no event shall the County Manager or his designee refuse
preliminary approval of the improvements if they are in fact constructed and submitted
for approval in accordance with the requirements of this Agreement.
6. The Developer shall maintain all required Improvements for a minimum period of one
year after preliminary approval by the County Manager or his designee. After the one
year maintenance period by the Developer has terminated, the developer shall petition
the County Manager or his designee to inspect the required improvements. The County
Manager or his designee shall inspect the improvements and, if found to be still in
compliance with the Land Development Code as reflected by final approval by the
Board, the Board shall release the remaining 10% of the subdivision performance
security. The Developer's responsibility for maintenance of the required Improvements
shall continue unless or until the Board accepts maintenance responsibility for and by
the County.
7. Six (6) months after the execution of this Agreement and once within every six (6)
months thereafter the Developer may request the County Manager or his designee to
reduce the dollar amount of the subdivision performance security on the basis of work
complete. Each request for a reduction in the dollar amount of the subdivision
performance security shall be accompanied by a statement of substantial completion by
the Developer's engineer together with the project records necessary for review by the
County Manager or his designee. The County Manager or his designee may grant the
request for a reduction in the amount of the subdivision performance security for the
improvements completed as of the date of the request.
8. In the event the Developer shall fail or neglect to fulfill its obligations under this
Agreement, upon certification of such failure, the County Manager or his designee may
call upon the subdivision performance security to secure satisfactory completion, repair
and maintenance of the required improvements. The Board shall have the right to
construct and maintain, or cause to be constructed or maintained, pursuant to public
advertisement and receipt of acceptance of bids, the improvements required herein.
The Developer, as principal under the subdivision performance security, shall be liable
to pay and to indemnify the Board, upon completion of such construction, the final total
cost to the Board thereof, including, but not limited to, engineering, legal and
contingent costs, together with any damages, either direct or consequential, which the
Board may sustain on account of the failure of the Developer to fulfill all of the
provisions of this Agreement.
9. All of the terms, covenants and conditions herein contained are and shall be binding
upon the Developer and the respective successors and assigns of the Developer.
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16A 4
IN WITNESS WHEREOF, the Board and the Developer have caused this Agreement to be
executed by their duly authorized representatives this 3D44` day of .l(A I lir , 2014.
(Name of Entity)
SIGNED IN THE PRESENCE OF Taylor Morrison of Florida, Inc.
By: I`-�;l . By: t
� ' Pri nted Na /Title: John Asher, Authorized Agent
Printed Named o 1n LOA°C r.,
By (Provide Proper Evidence of Authority)
Printed Name:6 as - h%.i67 '._
ATTEST:
BOARD OF COUNTY COMMISSIONERS OF COLLIER
DWIGHT E.BROCK,C,L'ERK -. COUNTY, FLORIDA
� ,
BY: aI�I��
Deputy Clerk ' ' ' 411w..
(i
pB�a 00_ I. TOM HENNIN G, CHAIRMAN
Appr6wecl;-a3-0 orrrri and legality:
Scott A. Stone,
Assistant County Attorney
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