Backup Documents 06/12/2018 Item #16A 8 6 A 8
ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP
TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO
I'IiE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE
Print on pink paper. Attach to original document. The completed routing slip and original documents are to he forwarded to the County Attorney Office
at the lime the item is placed on the agenda. All completed routing slips and original documents must he received in the County Attorney Office no later
than Monday preceding the Board meeting.
**NEW** ROUTING SLIP
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#1 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 "7 71
t
4. BCC Office Board of County A5
Commissioners \(k/ 1\7_..-1\v'q,
5. Minutes and Records Clerk of Court's Office
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 Jodi Hughes Phone Number x-5744
Contact/ Department
Agenda Date Item was 6/12/18 Agenda Item Number 16A8 ►/
Approved by the BCC
Type of Document Bond,Maintenance Agreement Number of Original 2
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? S pt S
2. Does the document need to be sent to another agency for additional signatures? if yes, N/A ,
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
signed by the Chairman,with the exception of most letters, must be reviewed and signed
by the Office of the County Attorney. JH
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 JH
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 6/12/18 and all changes made during the
meeting have been incorporated in the attached document. The County Attorney's a a .
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 the
Chairman's signature.
l: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
16A8
CONSTRUCTION AND MAINTENANCE AGREEMENT FOR SUBDIVISION
IMPROVEMENTS
THIS CONSTRUCTION AND MAINTENkANCE AGREEMENT FOR SUBDIVISION IMPROVEMENTS
entered into this 2.144- day of 1-› , 20 18 between
Sobel Vanderbilt, LLC. hereinafter referred to as "Developer," 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: Vanderbilt Reserve
B. Chapter 4 and 10 of the Collier County Land Development Code required 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, Utilities, Drainage,etc.
within 18 months from the date of approval 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$ 2,073,740.02 - which amount represents 10% of
the total contract cost to complete the construction plus 100% of the estimated cost of to complete
the required improvements at the date of this Agreement.
3. 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 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 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.
16A8
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 and 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.
IN WITNESS WHEREOF, the Board and the Developer have caused this Agreement to be executed by
their duly authorized representatives this 27- -)-- day of 3-1u\A / / , 20 l$ .
SIGNED IN PRESENCE OF: (Name of •-ntity) Sobel
Vanderbilt, LLC.
By: 1 By:
Printed Name Print- • Name/Title (President,VP, or CEO)
Tirso San Jose Samuel R. Sobel, Managing Member
(Provide Proper Evidence of Authority)
Printed Name Tiffany Davis ,d tt)Lt i S Printed Name Mari - - ar
Gibson ' War)/ g.J
ATTEST:_ • ' , t . ATTEST: / ,h •
CRYST-A1.K.-(INTEL, INT CLERK BOARD O' CO r •11' i ��RS
OF CO ER • - NTY D
By-) By: .
Deputy Clerk, • •st as to Chairman's
p i: • 3tu►eonly.
A _ =- � 5.�,� ;� Gl,.a:� �,
ved s to f• .ar*i le
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Assis ant County Ak£orney
16A8
PERFORMANCE BOND
BOND NO.2190854
KNOW ALL PERSONS BY THESE PRESENTS:that
Sobel Vanderbilt, LLC (Name of Owner)
2385 NW Executive Center Drive, Ste 370 (Address of Owner)
Boca Raton, FL 33431 (Address of Owner)
(Hereinafter referred to as "Owner") and
Great American Insurance Company (Name of Surety)
301 E 4th Street (Address of Surety)
Cincinnati, OH 45202 (Address of Surety)
201-661-2381 (Telephone Number)
(hereinafter referred to as "Surety") are held and firmly bound unto Collier County, Florida, (hereinafter
referred to as "County") in the total aggregate sum of Trio MillionSeventy-Three Thousand Seven Hundred Forty and 0?J700 Dollars
($2,073,740.02 ) in lawful money of the United States, for the payment of which sum well and truly
to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and
severally, firmly by these presents. Owner and Surety are used for singular or plural, as the context
requires.
THE CONDITION OF THIS OBLIGATION is such that whereas,the Owner has submitted for approval by
the Board of a certain subdivision plat named Vanderbilt Reserve and that
certain subdivision shall include specific improvements which are required by Collier County Ordinances
and Resolutions (hereinafter "Land Development Regulations"). This obligation of the Surety shall
commence on the date this Bond is executed and shall continue until the date of final acceptance by the
Board of County Commissioners of the specific improvements described in the Land Development
Regulations (hereinafter the "Guaranty Period").
NOW THEREFORE, if the Owner shall well, truly and faithfully perform its obligations and duties
in accordance with the Land Development Regulations during the guaranty period established by the
County, and the Owner shall satisfy all claims and demands incurred and shall fully indemnify and save
harmless the County from and against all costs and damages which it may suffer by reason of owner's
failure to do so, and shall reimburse and repay the County all outlay and expense which the County may
incur in making good any default,then this obligation shall be void, otherwise to remain in full force and
effect.
PROVIDED, FURTHER, that the said Surety, for value received hereby, stipulates and agrees that
no change, extension of time, alteration, addition or deletion to the proposed specific improvements
shall in any way affect its obligation on this Bond, and it does hereby waive notice of any such change,
extension of time, alteration, addition or deletion to the proposed specific improvements.
PROVIDED, FURTHER, that it is expressly agreed that the Bond shall be deemed amended
automatically and immediately,without formal and separate amendments hereto, so as to bind the
16A8
Owner and the Surety to the full and faithful performance in accordance with the Land Development
Regulations. The term "Amendment", wherever used in this Bond, and whether referring to this Bond,
or other documents shall include any alteration, addition or modification of any characterwhatsoever.
IN WITNESS WHEREOF,the parties hereto have caused this PERFORMANCE BOND to be
executed this 4th day of June, 2018
Sobel V ilt, LLC
��:- Princi 'al
By: Witness: �Q,[aa,..G- &Ue,a,. CFS
Jeffrey E.Sobel, Member Name&Title Name &Title
Great American Insurance Company
By:_ 1 C Witness:
Debra J. Lz Atty-in-Fact iKQrt6 sw;S 1...4c Name &Title
(✓ —300ci (fin /
ACKNOWLEDGEMENT
STATE OF igrild---
COUNTY OF ,1
T FOREGOING PERFORMANCE BOND WAS ACKNOWLEDG D BEFORE ME THIS DAY OF
/ , o?D/2" , by (tW—i-e yF$ 7 6i—7 (NAME
ACKNOWLEDGER) AS /WC z) (TITLE) OF ..03 )7,414 ..1.th/7; e- (NAME OF
COMPANY) WHO IS PERSONALLY KNOW TO ME, OR HAS PRODUCED
AS IDENTIFICATION.
Notary Public—State of Or/la
(SEAL)
STEPHANIE MATTORANo
�, _•., 14 MY COMMISSION#GG 212844
774.-N EXPIRES:June 17,2022
•.,oFFl.,.," Bonded lbw Notary Public Underwriters
16A8
SURETY ACKNOWLEDGEMENT
WITNESSES: Great American Insurance Company
BY (‘‘.1).(i �(C�=- ------
Printed Name: nit/A4# f5/ewe,AjrrGr-/` Printed Name/Title.
Debra J. Ezra(Atty-In-Fact)
(Provide Proper Evidence of Authority)
Printed Name: \ l
NOTARY ACKNOWLEDGMENT
STATE OF New Jersey
COUNTY OF Bergen
THE FOREGOING PERFORMANCE BOND WAS ACKNOWLEDGED BEFORE ME THIS
4th DAY OF June , 20 18_, BY Debra J. Ezra
_ AS Attorney-In-Fact OF Great American Insurance Company WHO
a—PESONALLY NOWN TO OR HAS PRODUCED AS
IDENTIFICATION.
Notary Public - State of A/5
KAREN oVVISTAK
(SEAL) NOTARY PUBLIC OF NEW JERSEY
10 # 50011902
,-;r,q 3112/2020
•
Printed' ame sw‘'s\-etk.
16 .A 8
GREAT AMERICAN INSURANCE COMPANY®
Administrative Office: 301 E 4TH STREET • CINCINNATI,OHIO 45202 • 513-369-5000 • FAX 513-723-2740
The number of persons authorized by
this power of attorney is not more than SIX
No.0 20450
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS: That the GREAT AMERICAN INSURANCE COMPANY,a corporation organized and existing under
and by virtue of the laws of the State of Ohio,does hereby nominate,constitute and appoint the person or persons named below,each individually if more than
one is named,its true and lawful attorney-in-fact,for it and in its name,place and stead to execute on behalf of the said Company,as surety,any and all bonds,
undertakings and contracts of suretyship,or other written obligations in the nature thereof;provided that the liability of the said Company on any such bond,
undertaking or contract of suretyship executed under this authority shall not exceed the limit stated below.
Name Address Limit of Power
ROBERT G.LULL ALL OF ALL
BRADLEY W.POST MAHWAH,NJ $100,000,000
DEBRA J.EZRA
KEITH B.ADAMS
CARL A.GERSON
GARRETT POST
This Power of Attorney revokes all previous powers issued on behalf of the attorney(s)-in-fact named above.
IN WITNESS WHEREOF the GREAT AMERICAN INSURANCE COMPANY has caused these presents to be signed and attested by its appropriate
officers and its corporate seal hereunto affixed this 8TH day of SEPTEMBER 2015 .
Attest GREAT AMERICAN INSURANCE COMPANY
pcS,"wgpc,
5:Vredl 4(._ e 3 ..,,,te Ae44.4:,,
Assistant Secretary Divisional Senior Vice President
STATE OF OHIO,COUNTY OF HAMILTON-ss: DAVID C.KITCHIN(877-377-240s)
On this 8TH day of SEPTEMBER , 2015 before me personally appeared DAVID C. KITCHIN, to me
known,being duly sworn, deposes and says that he resides in Cincinnati,Ohio,that he is a Divisional Senior Vice President of the Bond Division of Great
American Insurance Company,the Company described in and which executed the above instrument;that he knows the seal of the said Company;that the seal
affixed to the said instrument is such corporate seal;that it was so affixed by authority of his office under the By-Laws of said Company,and that he signed his
name thereto by like authority.
;r
Susan A.Kohor$1 J /
Notary PM;She of Ohio a ��`Lgcl�
, •. �rcot>�I�o�Expires o�ta-moo
This Power ofAttorney is granted by authority of the following resolutions adopted by the Board of Directors of Great American Insurance Company
by unanimous written consent dated June 9,2008.
RESOLVED: That the Divisional President,the several Divisional Senior Vice Presidents,Divisional Vice Presidents and Divisonal Assistant Vice
Presidents,or any one of them,be and hereby is authorized,from time to time,to appoint one or more Attorneys-in-Fact to execute on behalf of the Company,
as surety,any and all bonds,undertakings and contracts of suretyship,or other written obligations in the nature thereof to prescribe their respective duties and
the respective limits of their authority;and to revoke any such appointment at any time.
RESOLVED FURTHER: That the Company seal and the signature of any of the aforesaid officers and any Secretary or Assistant Secretary of the
Company may be affixed by facsimile to any power of attorney or certificate of either given for the execution of any bond,undertaking,contract of suretyship,
or other written obligation in the nature thereof such signature and seal when so used being hereby adopted by the Company as the original signature of such
officer and the original seal of the Company,to be valid and binding upon the Company with the same force and effect as though manually affixed.
CERTIFICATION
I,STEPHEN C.BERAHA,Assistant Secretary of Great American Insurance Company,do hereby certify that the foregoing Power ofAttorney and
the Resolutions of the Board of Directors of June 9,2008 have not been revoked and are now in full force and effect.
Signed and sealed this 4 day of—S AV>e._ , 07 0\& .
I.15Uq
14
a`. rn 4(... c_ 3
Assistant Secretary
16A8
_ _ _ _
GREATTTTTTTTT ECA J J
INSURANCE GROUP
301 East Fourth Street
Cincinnati,OH 45202
Gr eaWnericanInsuranceGroup.eom
GREAT AMERICAN INSURANCE COMPANY
STATEMENT OF ASSETS,LIABILITIES AND CAPITAL&SURPLUS
AS OF DECEMBER 31,2017
ADMITTED ASSETS LIABILITIES,CAPITAL AND SURPLUS
Bonds S 3,060,398,285 Unpaid losses and loss expenses S 3,234,968,473
Stocks 1,120,055,822 Reserve for underwriting expenses 250,415,601
Mortgage loans on real estate 308,124,727 Federal and foreign income taxes 16,201,046
Real estate(net of encumbrances) 58,358,036 Reserve for unearned premiums 1,213,165,459
Cash and short-term investments 520,408,082 Ceded reinsurance premiums payable 116,264,469
Other invested assets 430,810,257 Funds held under reinsurance treaties 528,220,952
Receivable for securities 7,897,029 Retroactive reinsurance ceded (152,393,446)
Investment income due and accrued 27,048,212 Other liabilities 201,309,283
Agents'and premium balances 594,218,747 Total liabilities 5,408,151,837
Reinsurance recoverable on loss and loss expense payments.... 52,851,306
Net deferred tax asset 140,164,743
Receivable from affiliates 8,697,586 Capital stock S 15,440,600
Receivable front Federal Crop Insurance Corporation 493,151,000 Paid in surplus 801,812,831
Company owned life insurance 182,436,210 Special surplus funds 108,684,165
Funds held as collateral 21,842,395 Unassigned funds 742,435,314
Funded deductibles 23,360,505 Policyholders'surplus 1,668,372,910
Other admitted assets 26,701,805
Total S 7,076,524,747 Total. S 7,076,524,747
Securities have been valued us the basis prescribed by the National Association of Insurance Commissioner.
STATE OF OHIO
SS.:
COUNTY OF HAMILTON
Robert 3.Schwartz,Vice President and Controller,and Stephen Beraha,Assistant Vice President and Assistant Secretary,
being duly sworn,each for himself deposes and says that they arc the above described officers of the Great American
Insurance Company of Cincinnati,Ohio;that said Company is a corporation duly organized,existing and engaged in
business as a Surety by virtue of the laws of the Slate of Ohio and has duly complied with all the requirements of the
laws of said state applicable to said Company and is duty qualified to act as Surety under such laws;that said Company
has also complied with and is duly qualified to act as Surety under Public Law 97-258 enacted September 13,
1982(96 Stat.1047 as amended:31 U.S.C.9304-9308); that to t c best of their knowledge and belief the above statement is
a full,true and correct Statement of the Assets,Liabilities and Capital&Surplus of the said Company as of December 31,,2017.
`�sllvlia(1liln�lrJ
Subscribed and sworn to before me ;? ti 11�a �
this 15th day of Manch,2018. y ll( ��(Ps•• ntro I
9.04.0iriervew.— t'
4y��1%K`
c, • •• t T Assistant Secretary
i
Pr• �•
NNIFER A. R re;
i��
o
No ary Public,State of Ohio
My Commission Expires 11-0&2021
ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP
1 A 8
TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO rii
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 he forwarded to the County Allornc) Oflier
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.
**NEW** ROUTING SLIP
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 Attorney Office.
Route to Addressee(s) (List in routing order) Office Initials Date
1.
2.
3. County Attorney Office County Attorney Office4 /it,
4. BCC Office Board of County cAS‘c5
Commissioners \ / )7 "167\
5. Minutes and Records Clerk of Court's Office
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 Jodi Hughes Phone Number x-5744
Contact/ Department
Agenda Date Item was 6/12/18 � Agenda Item Number 16A8
Approved by the BCC
Type of Document Plat and Declaration of Covenants, Number of Original 2
Attached Restrictions and Reciprocal Easements 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?
2. Does the document need to be sent to another agency for additional signatures? If yes, N/A
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.
signed by the Chairman,with the exception of most letters,must be reviewed and signed
by the Office of the County Attorney. JH
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 JH
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 6/12/18 and all changes made during
the meeting have been incorporated in the attached document. The County ,.):61e1O V P.s
Attorney's Office has reviewed the changes,if applicable. _. aids
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 61A'-a"
Chairman's signature. ,t* e54
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
16A8
DECLARATION OF COVENANTS, RESTRICTIONS AND
RECIPROCAL EASEMENTS
This instrument prepared by,
and after recording return to:
RENNERT VOGEL MANDLER&RODRIGUEZ,P.A.
100 S.E.Second Street,Suite 2900
Miami,Florida 33131-2130
Declaration of Covenants(Vanderbilt Reserve)04
16 A 8
DECLARATION OF COVENANTS, RESTRICTIONS
AND RECIPROCAL EASEMENTS
TABLE OF CONTENTS
Article 1 DEFINITIONS 2
Article 2 THE HOMEOWNERS' ASSOCIATION 6
Article 3 HOMEOWNERS' ASSOCIATION PROPERTY, COMMON AREAS, LIMITED
COMMON AREAS 8
Article 4 EASEMENTS 10
Article 5 RULES AND REGULATIONS 13
Article 6 MAINTENANCE 13
Article 7 ASSESSMENTS 16
Article 8 INDEMNIFICATION OF OFFICERS AND DIRECTORS/INDEMNIFICATION OF
DECLARANT 22
Article 9 INSURANCE AND CONDEMNATION 22
Article 10 USE RESTRICTIONS 27
Article 11 ENFORCEMENTS AND REMEDIES 32
Article 12 MODIFICATIONS, SUPPLEMENTS AND AMENDMENTS 34
Article 13 DISCLAIMERS 38
Article 14 GENERAL PROVISIONS 41
Declaration of Covenants(Vanderbilt Reserve)04
16A8
A 8
DECLARATION OF COVENANTS, RESTRICTIONS AND
RECIPROCAL EASEMENTS
THIS DECLARATION OF COVENANTS, RESTRICTIONS AND RECIPROCAL
EASEMENTS (this"Declaration") is made and entered into as of this day of
201_ by SOBEL VANDERBILT, LLC, a Florida limited liability company, whose address is
2385 NW Executive Center Drive, Suite 370, Boca Raton, FL 33431, hereinafter referred to herein
as "Declarant."
WHEREAS, Declarant is the owner of that certain parcel of real property described on
Exhibit "A" to this Declaration located in Collier County, Florida, which Declarant intends to
develop into an integrated residential community to be known as"VANDERBILT RESERVE"; and
WHEREAS, Declarant intends to develop the Properties to include Dwellings and other
improvements; and
WHEREAS, Declarant is desirous of (i) providing for the operation, maintenance, repair
and replacement of the Common Areas, as well as other portions of the Properties, (ii)
establishing certain easements in, to, over, under, across and through portions of the Properties
for the benefit of the Dwellings, the Owners and the Community Beneficiaries, and (iii) imposing
certain restrictions in connection with the development, ownership and use of the Dwellings, the
Common Areas, and other portions of the Properties, all as more particularly provided for herein.
NOW, THEREFORE, for valuable consideration, the Declarant does hereby declare that
the Properties are and shall be held, transferred, sold, conveyed and occupied subject to the
covenants, restrictions, easements, assessments, charges and liens hereinafter set forth.
Article 1
DEFINITIONS
1.1 Definitions. In addition to the terms defined elsewhere in this Declaration, the
following terms when used in this Declaration (including the exhibits hereto) shall have the
respective meanings ascribed to them in this Article, except where the context clearly indicates a
different meaning:
1.1.1 "Access Areas" means the roadways, ramps, sidewalks, walks, walkways,
and other areas suitable for pedestrian or vehicular traffic existing from time to time on or over
portions of the Common Areas.
1.1.2 "Access Control Facilities" means the facilities, systems, equipment and
devices, if any, that may exist, from time to time, located within or in connection with the Access
Areas which are intended to control access to the Properties.
1.1.3 "Act" means Chapter 720 of the Florida Statutes as enacted as of the date
hereof, and as renumbered from time to time.
1.1.4 "Applicable Law" means all laws, rules, regulations, codes and ordinances
of the United States, the State of Florida, and the County, applicable to the ownership, operation
and use of the Properties, as renumbered from time to time.
DECLARATION OF COVENANTS,RESTRICTIONS
AND RECIPROCAL EASEMENTS
2
16A8
1.1.5 "Articles" means the Articles of Incorporation of the Homeowners'
Association, as amended from time to time. A copy of the initial Articles of Incorporation of the
Homeowners' Association is attached as Exhibit "B" to this Declaration.
1.1.6 "Assessment" means a share of the funds required for the payment of
Common Expenses which from time to time are assessed by the Association against some or all
of the Dwellings for the purposes set forth herein, including any Special Assessments and
Individual Assessments.
1.1.7 "Association" or "Homeowners' Association" means the "Vanderbilt
Reserve Homeowners Association, Inc., a Florida not-for-profit corporation," or any successor
thereto.
1.1.8 "Association Property" or "Homeowners' Association Property" means
personal property and real property, if any, which may be acquired by the Association and which
is not included in the Common Areas, including, without limitation, any portion of the Properties
used for management offices, manager's quarters or the storage of maintenance equipment or
supplies, if any.
1.1.9 "Board" or "Board of Directors" means the Board of Directors of the
Homeowners' Association.
1.1.10 "Building" means each of the buildings located within the Properties which
contain or will contain Dwellings or any portions of the Common Areas.
1.1.11 "By-Laws" means the By-Laws of the Homeowners' Association, as
amended from time to time. A copy of the initial By-Laws of the Homeowners' Association is
attached as Exhibit "C" to this Declaration.
1.1.12 "Common Areas" means all portions of the Properties designated as
Common Areas of the Properties pursuant to Section 3.1 of this Declaration.
1.1.13 "Common Expenses" means those expenses, costs and disbursements
described in Section 7.1 of this Declaration.
1.1.14 "Community" or "Properties" means the Land, together with all
improvements now or hereafter thereon, and any and all additions or supplements thereto, now
or hereafter made subject to this Declaration, except such as are withdrawn from the provisions
hereof in accordance with the procedures set forth in this Declaration.
1.1.15 "Community Beneficiaries" means the Owners, the Members, the
Declarant, the Declarant's Permitees, the Homeowners' Association, tenants, licensees, guests,
invitees, members, agents, employees, contractors and Institutional Mortgagees, and, in the case
of Owners which are corporations, partnerships, or trusts, the officers and directors, partners and
beneficiaries (as the case may be)thereof, a fiduciary or beneficiary of an Owner which is a trust,
or occupants named or described in a lease or sublease, but only if approved in accordance with
this Declaration. In the case of Owners which are corporations, partnerships, or trusts, the
Homeowners' Association shall have the right to set reasonable limits on the total number of
persons who may occupy a Dwelling and/or use the Common Areas of the Properties to the
maximum extent permitted under Applicable Law.
1.1.16 "County" means Collier County, Florida.
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1.1.17 "County Regulation" means the Land Development Code, Collier County,
Florida, as amended from time to time.
1.1.18 "Declarant"means to SOBEL VANDERBILT, LLC, a Florida limited liability
company, and its respective successors and such assigns as to which the rights of Declarant
hereunder are specifically assigned. Declarant may assign all or any portion of its rights and
obligations hereunder, or all or any portion of such rights in connection with portions of the
Properties in the manner provided in Section 14.8 of this Declaration.
1.1.19 "Declarant's Permitees" means the Declarant's officers, directors,
shareholders, members, managers, partners, lenders, employees, agents, contractors,
subcontractors, suppliers, lessees, licensees, guests and invitees (and the officers, directors,
shareholders, members, managers and employees thereof).
1.1.20 "Declaration" and "this Declaration" means this instrument, as it may be
amended from time to time, together with any Supplemental Declaration.
1.1.21 "Driveways" means the driveway areas adjacent to the Dwellings, which
shall be Limited Common Areas of such Dwellings, as designated on the site plan for the
Properties or otherwise pursuant to this Declaration.
1.1.22 "Dwelling" means a single-family or townhome residence within the
Properties for which a temporary or final certificate of completion or occupancy, or its equivalent,
has been issued by the County.
1.1.23 "Family" or words of similar import shall be deemed to include a spouse,
child, parent, brother, sister, grandchild and other persons permanently cohabiting a Dwelling as,
or together with, the Owner or permitted occupant thereof.
1.1.24 "FNMA/FHLMC/FHA/GNMA" means the Federal National Mortgage
Association, the Federal Home Loan Mortgage Corporation, the Federal Housing Administration,
and the Government National Mortgage Association, respectively.
1.1.25 "General Assessment" means the share of funds for the payment of
Common Expenses, which from time to time are assessed to a Dwelling pursuant to Section 7,8
of this Declaration.
1.1.26 "Individual Assessment" means an assessment levied by the Board or the
Association against a Dwelling or Dwellings for the purposes described in Section 7.11 of this
Declaration.
1.1.27 "Institutional Mortgagee" means a bank, savings and loan association,
insurance company, real estate or mortgage investment trust, pension fund, an agency of the
United States Government, mortgage banker, FNMA, FHLMC or any other lender generally
recognized as an institutional lender, or any other person regularly engaged in the business of
making mortgage and/or mezzanine loans, or the Declarant, and their respective successors and
assigns, holding a first mortgage on a Dwelling or all or any portion of the Properties.
1.1.28 "Land" means the lands described in attached Exhibit "A" and all
additions or supplements thereto, now or hereafter made subject to this Declaration, except such
as are withdrawn from the provisions hereof in accordance with the procedures set forth in this
Declaration.
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1.1.29 "Life Safety Systems" means and refers to any and all emergency lighting,
audio and visual signals, safety systems, sprinklers and smoke detection systems, which are now
or hereafter installed in any improvements constructed upon the Properties, whether or not within
a Dwelling. All such Life Safety Systems, if any, together with all conduits, wiring, electrical
connections and systems related thereto, which are located outside of the Dwellings, shall be
deemed part of the Common Areas.
1.1.30 "Limited Common Areas" means such portions of the Common Areas
which are intended, or are now or hereinafter designated by the Homeowners' Association, for
the exclusive use (subject to the easements and rights, if any, of the County, the Homeowners'
Association, and the public)of certain Owners, to the exclusion of other Owners. Unless otherwise
provided specifically to the contrary, reference to the Common Areas shall include the Limited
Common Areas.
1.1.31 "Limited Common Expenses" means and refers to the costs and expenses
of administering and/or maintaining any Limited Common Areas.
1.1.32 "Member" or "Members" means those persons who are members of the
Homeowners' Association, as provided in this Declaration, the Articles and the By-Laws.
1.1.33 "Owner" or "Owners" means the person or persons, or legal entity or
entities, including the Declarant, holding fee simple interests of record to a Dwelling, including
sellers under executory contracts of sale, but excluding those having such interests merely as
security for the performance of an obligation.
1.1.34 "Percentage Shares" means the share of Common Expenses allocated to
the Dwellings, as set forth in Section 7.3 of this Declaration.
1.1.35 "Public Records" means the public records of the County.
1.1.36 "Rules and Regulations" means such rules and regulations, if any, as
established, and as amended from time to time, by the Homeowners' Association pursuant to
Article 5 of this Declaration.
1.1.37 "Special Assessment" means an Assessment levied by the Board against
a Dwelling for the purposes described in Section 7.9 of this Declaration.
1.1.38 "Supplemental Declaration" means an instrument executed by the
Declarant and recorded in the Public Records for the purpose of adding to the Properties, or
withdrawing any portion(s)thereof, from the effect of this Declaration, or designating a portion of
the Properties as Common Areas, Limited Common Areas or Homeowners'Association Property
hereunder, or for any other purposes provided in this Declaration.
1.1.39 "Voting Member" or "Voting Members" means those Members who have
voting rights, as provided in this Declaration, the Articles or By-Laws.
The foregoing definitions shall be applicable to this Declaration and to any amendments
to this Declaration or Supplemental Declaration, unless otherwise expressly provided herein or
therein to the contrary.
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Article 2
THE HOMEOWNERS' ASSOCIATION
2.1 Formation. Prior to the recording of this Declaration, Declarant has caused the
Homeowners' Association to be formed, by the filing of the Articles in the office of the Secretary
of State of Florida. The purpose and powers of the Homeowners' Association shall be all of the
purposes and powers set forth in this Declaration and in the Articles and By-Laws. The
Homeowners'Association shall be responsible for the execution, performance, administration and
enforcement of all the terms and conditions of this Declaration.
2.2 Not a Condominium Association. The Homeowners' Association is not intended to
be a condominium association regulated under Chapter 718, Florida Statutes. Anything in this
Declaration to the contrary notwithstanding, the existence or exercise of any easement, right,
power, authority, privilege or duty, which would cause the Homeowners'Association to be subject
to Chapter 718, Florida Statutes, or any related administrative rules or regulations, shall be
automatically null, void and of no effect to the extent, but only to the extent, that such existence
or exercise is finally determined by a court or administrative hearing officer of competent
jurisdiction (after all appellate rights have been exercised or waived)to subject the Homeowners'
Association to said provisions. It is the intent of this provision that the Homeowners' Association
shall not be deemed to be a condominium association, that the Common Areas shall not be
deemed to be common elements of a condominium, and that nothing in this Declaration shall be
deemed to make the Homeowners' Association a condominium association within the meaning of
said Chapter 718, Florida Statutes.
2.3 Membership. The Declarant and the Owners of the Dwellings shall automatically
be Members of the Homeowners'Association. The membership of an Owner is appurtenant to its
Dwelling and will be transferred automatically by conveyance of title to its Dwelling and by filing
of record therefor a deed in the Public Records evidencing such transfer of ownership. An Owner
of more than one Dwelling is entitled to one membership for each Dwelling owned (subject to
Section 2.6 below). No one other than the Declarant and the Owners may be a Member of the
Homeowners' Association, and membership in the Homeowners' Association may not be
transferred except by the transfer of title to a Dwelling; provided, however, that the foregoing does
not prohibit the assignment of membership and voting rights by any Owner who is a contract seller
to such Owner's vendee in possession or by an Owner to an Institutional Mortgagee. In the
absence of such an assignment from the Owner thereof, no person or entity holding an interest
of any type or nature whatsoever in a Dwelling only as the security for performance of an
obligation shall be a Member of the Homeowners' Association.
2.4 Voting. The Homeowners' Association shall have such classes of Members, who
shall cast such votes, as are provided in Section 3.02 of the Articles of the Homeowners'
Association. Upon termination of the Class B Membership, the Board of Directors of the
Homeowners' Association shall be appointed by the Declarant as provided in Section 5.03 of the
Articles of the Homeowners'Association.
2.5 Litigation. Notwithstanding anything in this Declaration to the contrary, no judicial
or administrative proceeding shall be commenced or prosecuted by the Homeowners'Association
unless approved by a vote of seventy-five percent(75%)of the total voting interests of the Voting
Members other than the Declarant. This section shall not apply, however, to (i) actions brought
by the Homeowners' Association to enforce the provisions of this Declaration (including, without
limitation, the foreclosure of liens), (ii) proceedings involving challenges to ad valorem taxation,
or (iii) counterclaims brought by the Homeowners' Association in proceedings instituted against
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it. This section shall not be amended unless such amendment is made or approved by the
Declarant.
2.6 Co-Ownership. Notwithstanding anything herein to the contrary, if more than one
person owns an interest in a Dwelling, there shall only be one Voting Member for any such
Dwelling, and said Voting Member shall be entitled to cast the vote(s)respectively allocated such
Dwelling herein. Such vote may be exercised as the co-Owners determine among themselves,
but no split vote is permitted among co-Owners. Prior to any meeting at which a vote is to be
taken, such co-Owners must file with the Secretary of the Homeowners' Association the name of
the Voting Member to be entitled to vote at such meeting, which shall be applicable to all votes
until rescinded.
2.7 Class B Termination. The Class B membership will terminate and convert
automatically to a Class A membership (to the extent the Declarant then owns any Dwelling),
upon the happening of any of the following, whichever occurs first:
2.7.1 The Declarant records a disclaimer of its Class B membership in the Public
Records; or
2.7.2 The occurrence of any of the events set forth in Section 730.307(1)(a), (c),
(d), (e)and (f) of the Act.
Upon termination of the Class B membership, all provisions of this Declaration, the
Articles, or By-Laws referring to Class B membership will be of no further force or effect.
2.8 Administration of the Homeowners' Association. The affairs of the Homeowners'
Association shall be administered by the Board of Directors in accordance with this Declaration
and the Articles, the By-Laws and the Rules and Regulations. The Articles, By-Laws and Rules
and Regulations may be amended, from time to time, in the manner set forth therein.
2.9 Scope of Power. The Homeowners' Association, acting through the Board, shall
also have the power and duty to:
2.9.1 Maintain, repair, replace the landscape and otherwise manage the Common
Areas, including but not limited to all improvements thereon, as the Homeowners' Association
considers necessary or appropriate in accordance with the provisions of this Declaration; provided,
however,that in the case of Limited Common Areas, such work may,at the option of the Association,
be done at the expense of (and all other expenses of such Limited Common Areas may be
specifically charged to) only those Owners who are holders of exclusive use rights in such Limited
Common Areas.
2.9.2 Maintain, repair and replace the Access Areas, including any cleaning, and
periodic resealing and resurfacing.
2.9.3 Maintain (or cause to be maintained), repair and replace the portions of the
Dwellings required to be maintained by the Homeowners' Association pursuant to Section 6.1.5 of
this Declaration.
2.9.4 Obtain, and pay, as a Common Expense, all commonly metered water,
sanitary sewage and electric services, and provide for all refuse collection and cable or master
television service (if any), as necessary.
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2.9.5 Grant easements,rights of way or strips of land,where necessary,for utilities,
telephone, satellite or cable television, water and sewer facilities and other services over the
Common Areas to serve the Common Areas and other portions of the Properties.
2.9.6 Maintain such policy or policies of liability, casualty, windstorm, and other
insurance with respect to the Common Areas, and the personal property located thereon or used in
connection therewith, if any, owned by the Homeowners' Association or the Declarant as provided
herein, as well as directors and officers insurance, in furthering the purposes and in protecting the
interests of the Homeowners'Association and its Members as otherwise directed by this Declaration
or the By-Laws.
2.9.7 Employ or contract with a management company (which may be an affiliate
of the Declarant) to perform all or any part of the duties and responsibilities of the Homeowners'
Association, and delegate, at the option of the Board, its powers to committees, officers and
employees.
2.9.8 Install and maintain, repair and replace the Access Control Facilities, if any,
and any such other safety devices, detectors and communications facilities, and employ or contract
for employment of such access control services, guards and watchmen for the Common Areas as
the Homeowners'Association considers necessary or appropriate,though it does not guarantee and
shall not be liable for damages suffered by anyone as a result of the inadequacy of any such services.
2.9.9 Perform any monitoring and maintenance required under any approval or
permit issued by, or agreement with, any governmental agency, including, without limitation, in
connection with the Common Areas.
2.9.10 Take such other actions which the Board shall deem advisable with respect
to the Properties as may be permitted hereunder or under Applicable Law.
Article 3
COMMON AREAS AND LIMITED COMMON AREAS
3.1 Common Areas. Except as set forth in Section 3.2, the Common Areas are
intended for the use and benefit of all Community Beneficiaries.The Common Areas shall include
only such property which is designated as Common Areas in this Declaration or in any future
recorded Supplemental Declaration or that is deeded to the Homeowners' Association. The
Common Areas shall consist of those facilities and portions of the Properties which the
Homeowners' Association may from time to time make available to all Owners. Declarant will
endeavor to specifically identify(by recorded legal description, signage, physical boundaries, site
plans or other means) the Common Areas of the Properties, but such identification shall not be
required in order for a portion of the Properties to be Common Areas hereunder. In the event that
the Homeowners' Association accepts an easement, dedication or similar grant over, under or
through any portion of the Properties, or any property adjacent thereto or in the vicinity thereof,
and/or the Homeowners'Association has assumed off-site maintenance obligations,then the area
or areas subject to such easement or other grant of rights or obligations shall be deemed Common
Areas for the purposes of, but only for the purposes of, the Homeowners'Association performing
whatever duties or obligations are stated in, or implied by law with respect to, such easement or
other grant(and for the costs thereof to be paid by the Owners through Assessments). In addition
to the foregoing, the Declarant,for so long as it owns any portion of the Properties, shall be entitled
to assign or otherwise designate portions of the Common Areas as Limited Common Areas of
one or more of the Dwellings.
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3.2 Limited Common Areas. The Declarant shall have the right to, from time to time
and in its sole and absolute discretion, assign or otherwise designate portions of the Common
Areas as Limited Common Areas, the use of which shall be restricted to certain Owners or other
Community Beneficiaries to the exclusion of others. Other than as expressly set forth in this
Declaration to the contrary, the Association shall be responsible for the maintenance, repair and
replacement of all Limited Common Areas, with the costs of same being collected though the
assessments against all Dwellings. The applicable Owner shall, however, be responsible for the
general cleaning and upkeep of the appearance of such area(s), and for the repair and
replacement for any furniture, furnishings or floor coverings placed on any such areas assigned
as a Limited Common Area. The Owner(s) of any Dwelling using a Limited Common Area or
making or causing to be made any additions, alterations or improvements thereto agrees, and
shall be deemed to have agreed, for such Owner, and his or her heirs, personal representatives,
successors and assigns, as appropriate, to hold the Homeowners'Association, the Declarant and
all other Owners harmless from and to indemnify them for any liability or damage to the Properties
and expenses arising therefrom. Notwithstanding the designation of any portion of the Common
Areas as Limited Common Areas, or the assignment of Limited Common Areas as permitted
hereunder, same shall not allow the Owner, the Homeowners' Association or any other assignee
of the Limited Common Areas to preclude passage through such areas as may be needed from
time to time for emergency ingress and egress, and for the maintenance, repair, replacement,
alteration and/or operation of the Common Areas which are most conveniently served (in the sole
determination of the Board) by accessing such areas (and an easement is hereby reserved for
such purposes) and/or as may be required by Applicable Law.
3.3 Title to the Common Areas. The Declarant may, from time to time, in its sole and
absolute discretion, convey all or any portions of its right, title and interest in the Properties,
including any Dwelling which is owned by the Declarant or any of Declarant's affiliates, to the
Homeowners' Association (but in no event shall it be obligated to do so, other than as may be
required hereunder or under Applicable Law). Such conveyance shall be by quit-claim deed,
which shall become effective upon recordation in the Public Records, or by quit claim bill of sale,
as appropriate. The Homeowners' Association shall pay all costs of such conveyance. The
Common Areas shall, upon the later of completion of the improvements thereon or the date when
the last Dwelling has been conveyed to a purchaser(or at any time sooner and from time to time
sooner at the sole election of Declarant and in whole or in part), be conveyed to the Homeowners'
Association, which shall be deemed to have automatically accepted such conveyance, by quit-
claim deed, without any representations or warranties whatsoever.
3.4 Parking. Parking within the Properties is limited solely to the Driveways adjacent
to the Dwellings and the parking spaces in the Common Areas reserved for visitors. Subject to
the restrictions set forth in this Declaration, the Homeowners' Association, through its officers,
directors, committees and agents, is hereby empowered to establish rules and regulations for
parking and to make provision for the involuntary removal of any violating vehicle. Notwithstanding
anything to the contrary set forth herein, the Homeowners' Association shall have the power and
authority to relocate any parking rights to the extent necessary to comply with Applicable Law
regarding handicap facilities.
EACH OWNER ACKNOWLEDGES AND AGREES THAT CERTAIN PORTIONS OF
THE PARKING AREAS AND OTHER PORTIONS OF THE PROPERTIES, INCLUDING, BUT
NOT LIMITED TO, GARAGES IN THE DWELLINGS, MAY BE LOCATED BELOW THE
FEDERAL FLOOD PLAIN, AND, ACCORDINGLY, IN THE EVENT OF FLOODING, ANY
PERSONAL PROPERTY STORED THEREIN IS SUSCEPTIBLE TO WATER DAMAGE.
ADDITIONALLY, INSURANCE RATES, BOTH FOR THE HOMEOWNERS' ASSOCIATION IN
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INSURING THE PARKING AREAS AND FOR OWNERS, MAY BE HIGHER THAN IF THE
PARKING AREAS WERE ABOVE THE FEDERAL FLOOD PLAIN. BY ACQUIRING TITLE TO,
OR TAKING POSSESSION OF, OR USING A DWELLING, EACH OWNER, FOR ITSELF AND
ITS TENANTS, GUESTS AND INVITEES, HEREBY EXPRESSLY ASSUMES ANY
RESPONSIBILITY FOR LOSS, DAMAGE OR LIABILITY RESULTING THEREFROM.
3.5 Tenants of Owners. All Owners shall be deemed to have fully delegated their right
of enjoyment of the Common Areas and facilities to their tenant, subject to reasonable regulation
and approval by the Board (provided that same is not discriminatory against one or more types of
users).
3.6 Acquisition and Sale of Property. The Homeowners' Association shall have the
power and authority to acquire or divest itself of such interests in real and personal property as it
may, in its sole discretion, deem beneficial to its Members as provided in Article 12 of this
Declaration. Such interest, if any, may include fee simple or other absolute ownership interests,
leaseholds or such other possessory use interests as the Homeowners' Association may, in its
sole discretion, determine to be beneficial to its Members.
Article 4
EASEMENTS
4.1 Easement Grants. Declarant hereby establishes, creates, and grants the
easements in, to, over, under, across and through those portions of the Properties, including,
without limitation, the Dwellings as provided below. The easements described below are subject
to the requirements of the County Regulations. The easements described below shall be
perpetual and non-exclusive and shall be appurtenant to any Dwelling benefited thereby, but shall
not be deemed to grant or convey any ownership interest in the Common Areas, or other property
subject thereto. All rights to use the easements granted herein shall be subject to the provisions
of this Declaration and the Rules and Regulations. Formal language of grant or reservation with
respect to such easements, as appropriate, is hereby incorporated in the easement provisions
hereof to the extent not so recited in some or all of such provisions.
4.1.1 Easements for Access Areas. Easements in favor of all Owners and other
Community Beneficiaries for ingress and egress, to provide pedestrian and vehicular access to
and from the adjacent dedicated public rights-of-way and all portions of the Common Areas, and
including easements in favor of all Owners, and their tenants, and the employees and invitees
thereof, through the Common Areas to the extent reasonably necessary for access and for other
purposes.
4.1.2 Easements for Parking. Such easements as may be required for parking in
any Driveway assigned to a Dwelling pursuant to Article 3 of this Declaration. The Owner of a
Dwelling may park motor vehicles in its Dwelling, subject to the terms set forth in this Declaration
and such Rules and Regulations as may be established by the Homeowners' Association from
time to time.
4.1.3 Easements for Encroachments. If any portion of the Properties (including,
without limitation, any Dwelling or other improvements constructed thereon)encroaches upon any
other portion of the Properties (including, without limitation, any Dwelling, or other improvements
constructed thereon); or if any encroachment shall hereafter occur as the result of construction of
any Dwelling or other improvement, settling or shifting of any Dwelling or other improvement; or
any alteration or repair to any portion of the Properties(or improvements thereon)or after damage
by fire or other casualty or any taking by condemnation or eminent domain proceedings of all or
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any portion of any improvement or portion of the Properties, a valid easement is granted and shall
exist for such encroachment and for the maintenance of the same so long as the structure causing
said encroachment shall exist. Such encroachments will likely constitute a violation of County
Regulations. The County does not expressly or by implication authorize encroachments. This
section does not limit the County's ability to pursue all available remedies to prevent, remove, or
extinguish encroachments violating County Regulations. The County will not permit or allow
encroachments into any easement dedicated to, or owned by, the public.
4.1.4 Easements for Support. Whenever any structure included in the Properties
(including, without limitation, any Dwelling or other improvements constructed thereon) adjoins
any structure included in any other portion of the Properties (including, without limitation, any
Dwelling or other improvements constructed thereon), each said structure shall have and be
subject to an easement of support and necessity in favor of the other structure provided such
easements for support comply with the provisions of the County Regulations.
4.1.5 Public Easements. Fire, police, health and sanitation and other public
service personnel and vehicles shall have a permanent and perpetual easement for ingress and
egress over and across the Properties, but only to the extent required for the performance of their
respective duties. Additionally, easements are hereby reserved in favor of all Owners (and their
guests, tenants and invitees)for ingress and egress over, through and across all Common Areas
and/or for emergency ingress and egress purposes.
4.1.6 Easements for Utility Facilities. Each portion of the Properties, including
each Dwelling, shall have an easement in common with all other portions thereof to use, maintain,
repair, alter and replace all pipes, wires, ducts, vents, cables, conduits, utility lines,
telecommunication and cable equipment and wiring, and similar or related facilities located in the
Dwellings and other portions of the Properties.
4.1.7 Easements for Maintenance, Operation, Repair and Rebuilding.
Easements in favor of Declarant, the Owners of the Dwellings and the Homeowners'Association,
over, under,through and across such portions of the Properties as may be necessary or desirable
to perform their obligations to maintain, modify, repair, restore, refurbish, operate, replace or
rebuild (including but not limited to painting and other decorating),those portions of the Properties
which are to be administered, operated, or maintained by such party, pursuant to this Declaration.
4.1.8 Easements for Signage. Easements in favor of the Declarant and the
Homeowners' Association for directional, advertising, promotional or other signage, and
architectural features, and other structures overhanging or on the Buildings or other portions of
the Properties, as initially constructed by Declarant or as approved by the Homeowners'
Association, including the right to move, repair, replace, alter,add to or expand the same provided
such easements for signage comply with the provisions of the County Regulations.
4.1.9 Construction, Sales and Leasing. The Declarant (and its agents,
employees, contractors, subcontractors and suppliers) shall have an easement of ingress and
egress over and across the Properties for construction purposes and to erect, maintain, repair
and replace, from time to time, one or more signs on the Properties for the purposes of marketing
or advertising the sale or lease of Dwellings or other portions of the Properties.
4.1.10 Additional Easements in favor of Declarant.The Declarant and its affiliates,
and their respective employees and agents, shall have the right from time to time to enter upon
the Common Areas and any other portions of the Properties (including, without limitation, the
Dwellings) for the purpose of the installation, construction, reconstruction, repair, replacement,
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operation, expansion and/or alteration of any improvements or facilities elsewhere on the
Properties that Declarant and its affiliates or designees elect to effect, and to use, without charge,
for sales, displays and signs or for any other purpose during the period of construction, sale and
leasing of Dwellings. Without limiting the generality of the foregoing, Declarant and its affiliates
shall have the specific right to maintain upon any portion of the Properties sales, administrative,
construction or other offices and exclusive and non-exclusive easements of access and use are
expressly reserved unto Declarant and its affiliates, and their successors, assigns, employees
and contractors, for these purposes. Any obligation (which shall not be deemed to be created
hereby) to complete, repair and maintain portions of the Properties shall, at all times, be subject
and subordinate to these rights and easements and to the above-referenced activities.
Accordingly, Declarant shall not be liable for delays in such completion to the extent resulting from
the need to complete any of the above-referenced activities prior to such completion.
4.2 No Easement Grantee. Should the intended creation of any easement provided for
in this Declaration fail by reason of the fact that at the time of creation there may be no grantee
in being having the capacity to take and hold such easement, then any such grant or purported
grant of easement shall nevertheless be considered as having been granted directly to the
Homeowners' Association, as agent for such intended grantees, for the purpose of allowing the
original party or parties to whom the easements were originally intended to have been granted
the benefit of such easement and the Owners designate the Homeowners' Association as their
lawful attorney-in-fact to execute any instrument on such Owners' behalf as may hereafter be
required or deemed necessary for the purpose of later creating such easement as it was intended
to have been created herein. Formal language of grant or reservation with respect to such
easements, as appropriate, is hereby incorporated in the easement provisions hereof to the extent
not so recited in some or all of such provisions.
4.3 Extent of Easements. The rights and easements of enjoyment of the Owners and
other Community Beneficiaries created hereby shall be subject to the terms and provisions of this
Declaration including without limitation the following:
4.3.1 The right and duty of the Homeowners' Association to levy Assessments
against each Dwelling for the purposes of maintaining the Common Areas in compliance with the
provisions of this Declaration.
4.3.2 The right of the Homeowners' Association to adopt and to enforce, at any
time and from time to time, the Rules and Regulations governing the use of the Common Areas,
including the right to fine Owners as hereinafter provided. Any rule and/or regulation so adopted
by the Homeowners'Association shall apply until rescinded or modified as if originally set forth at
length in this Declaration.
4.3.3 The right of the Homeowners' Association to suspend the enjoyment rights
of any Community Beneficiary including, without limitation, the right to use the Common Areas,
as provided in Section 11.1 of this Declaration.
4.3.4 The right of Declarant to permit such persons as it may from time to time
designate to use the Common Areas.
4.3.5 The rights of the Owners as elsewhere provided in this Declaration.
4.3.6 The right of the Declarant, and its successors and assigns, and the
Homeowners' Association to sell, transfer, convey or dedicate all or any part of the Properties, or
to impose or grant covenants, restrictions and easements (blanket or specific) in favor of any
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public agency, authority or utility for such purposes and subject to such conditions as it may
determine, in its sole discretion.
4.3.7 The Declarant's reservations of all other rights of ownership in and to the
Properties which are not inconsistent with the foregoing easements including, without limitation,
the right to grant further easements on, over, under and/or across the Properties; the right to
improve the Properties (or any portions thereof); the right to subject portion of the Properties to
condominium ownership or governance by a sub-association; the right to raze, alter or modify any
improvements now or hereafter constructed within the Properties(or any portions thereof)subject
to Applicable Law; the right of the Declarant, during the period in which it is a Class B Member,
to unilaterally designate and re-designate from time to time the portions of the Properties to be
used by Community Beneficiaries, and the right of the Declarant to add or withdraw portions of
the Common Areas, to create, designate and assign Limited Common Areas,to reserve or assign
all or any portion of its rights under this Declaration and to reserve and transfer development
rights, as provided in Article 12 of this Declaration.
Article 5
RULES AND REGULATIONS
5.1 Rules and Regulations Governing Use of the Properties. Subject to the rights
reserved by the Declarant in this Declaration, the Homeowners' Association shall have the
absolute right to regulate the use of the Properties, and may from time to time modify, amend and
supplement the Rules and Regulations. A current copy of the Rules and Regulations established
hereunder, if any, and any modifications, amendments or supplements thereto, shall be made
available at the request of any Owner or other Community Beneficiary or Institutional Mortgagee.
5.2 Enforcement of Rules and Regulations. The Homeowners' Association shall have
the authority to enforce the Rules and Regulations and the other restrictions imposed by this
Declaration, as further set forth in Article 11 of this Declaration. The Homeowners' Association
shall also have the right to suspend, for a reasonable period of time, the rights of an Owner, or
any of its guests, tenants or invitees, or both, to use all or any portions of the Common Areas and
to levy reasonable fines and suspensions, against any Owner or any of its guests, tenants or
invitees,for violations of the Rules and Regulations. Each Owner shall be responsible for all costs
of such enforcement including, without limitation, reasonable attorneys' fees and costs incurred
in any actions to redress an alleged failure or refusal to comply, by such Owner, or any of its
guests, tenants or invitees, with the restrictions imposed under or pursuant to this Declaration.
This section shall not deprive the Homeowners' Association or any person of any other right or
remedy available under this Declaration or under Applicable Law.
5.3 Assessments. Fine(s) imposed against an Owner or any of its guests, tenants or
invitees shall be treated as an Individual Assessment against the Dwelling, subject to the
provisions for the collection of Assessments, and the lien securing same, as set forth in Article 7
of this Declaration.
Article 6
MAINTENANCE
6.1 Homeowners' Association's Responsibilities. Except for any portions of the
Properties to be maintained, repaired and replaced by the Owners pursuant to Section 6.2, the
Homeowners' Association shall be responsible for, and shall at all times manage, operate,
maintain, repair and replace in good condition and shall replace as often as necessary all
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Common Areas within the Properties, and any and all Association Property, whether or not
conveyed to the Homeowners' Association, and to maintain, repair and replace certain portions
of the Dwellings and the Limited Common Areas appurtenant thereto, as hereinafter provided.
The Homeowners' Association shall also be responsible for, and shall at all times operate and
maintain the surface water management system in accordance with the permit issued by the
District (if any), shall carry out, maintain, and monitor any required wetland mitigation tasks (if
any), and shall maintain copies of all permitting actions with regard to the District. All expenses
for maintenance performed pursuant to this section shall be paid for by the Homeowners'
Association through Assessments. These responsibilities include, but are not limited to, the
following:
6.1.1 Access Areas. Maintenance of all Access Areas, including, without
limitation, all entrance areas, gates and roadways.
6.1.2 Access Control Facilities. Maintenance of all Access Control Facilities
which the Homeowners' Association may from time to time consider necessary or appropriate.
Notwithstanding the foregoing, the Homeowners' Association does not guarantee and shall not
be liable for damages suffered by anyone as a result of the inadequacy of any such services or
devices. Access control personnel engaged by the Homeowners'Association shall have the right
to stop and question persons on the Properties and to require satisfactory evidence of any such
person's right to be where he or she is stopped. Any person who fails to establish that right may
be required to leave (even if he or she actually is entitled to be where he is stopped but fails to
satisfactorily prove that he is). The Homeowners' Association may, at any time and from time to
time, alter the design, layout, location and other characteristics of the Access Areas and the
Access Control Facilities, existing from time to time on or in connection with the Properties for use
by access control personnel.
6.1.3 Common Areas. Maintenance of all outside areas, including, without
limitation, all landscaping, open areas, sprinklers and irrigation, drainage structures, meters, fire
pump and safety equipment, mailboxes, generators and other electrical and mechanical
equipment now or hereafter located within the Common Areas and other structures (except public
utilities, to the extent same have not been made Common Areas and except those Limited
Common Areas to be maintained by Owners, if any) situated on the Common Areas (without
imposing any obligation on the Declarant or the Homeowners' Association to provide such
services).
6.1.4 Limited Common Areas. Maintenance of all outdoors Limited Common
Areas, including, without limitation, any Limited Common Area yards adjacent to the Dwellings.
Notwithstanding the foregoing, the costs associated with maintaining any such Limited Common
Areas may (at the discretion of the Association) be assessed to one or more Owner(s), as
provided in this Declaration.
6.1.5 Exterior Surfaces and Roofs of Dwellings. Maintenance and repairs of the
exterior surfaces and roofs of the Dwellings including, but not limited to, repainting the exterior
doors located therein. Such maintenance shall be conducted utilizing such materials and such
colors and quality as that originally utilized by the Declarant or later specified by the Homeowners'
Association, as appropriate. The cost of such maintenance and repairs shall be assessed in the
manner provided in Section 7.9; provided, however, any extraordinary maintenance and repairs
as determined by the Homeowners' Association, in its sole and absolute discretion, shall be
assessed in the manner provided in Section 7.12 in this Declaration.
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6.1.6 Driveways. Maintenance of all Driveways, including, without limitation,
paving, pavers and other surfaces and driveways, as well as other facilities necessary for the
parking of motor vehicles in the Driveways. The cost of such maintenance and repairs shall be
assessed in the manner provided in Section 7.8 of this Declaration; provided, however, any
extraordinary maintenance and repairs, as determined by the Homeowners' Association, in its
reasonable discretion, shall be assessed in the manner provided in Section 7.11 of this
Declaration.
6.1.7 Additional Easements. Maintenance and operation of all utility easements
including tracts or facilities, and conservation or preservation easements/areas.
6.1.8 Governmental Compliance. Perform any monitoring and maintenance
required under any approval or permit issued by, or agreement with, any governmental agency.
6.1.9 Taxes. Payment of all ad valorem real and personal property taxes, if any,
assessed to the Properties, other than those taxes which are separately assessed to a Dwelling.
6.1.10 Utilities and Other Expenses. Payment of all expenses for the removal of
trash from the Properties, and any and all water, sewer,electrical and other utility charges incurred
by any Dwellings or other portions of the Properties which are tied to central utility meters.
6.1.11 Life Safety Systems. No Owner shall make any additions, alterations or
improvements to the Life Safety Systems, and/or to any other portion of the Properties which may
impair the Life Safety Systems or access to the Life Safety Systems, without first receiving the
prior written approval of the Homeowners' Association. In that regard, no lock, chain or other
device or combination thereof shall be installed or maintained at any time on or in connection with
any door on which panic hardware or fire exit hardware is required. Emergency signage shall not
be altered or removed by any Owner whatsoever. No barrier including, but not limited to, personal
property, shall impede the free movement of ingress and egress to and from all emergency
ingress and egress passageways.
6.1.12 Surface Water Management System. To comply with the obligation to: (i)
operate, maintain, repair and replace the surface water management system in accordance with
the District Permit issued by the District, if any, (ii) carry out, maintain, and monitor any required
wetland mitigation tasks, if any, and (iii) maintain copies of all permitting actions with regard to
the District.
6.1.13 Declarant Obligations. Without limiting the generality of the foregoing, the
Homeowners' Association shall assume all of Declarant's and its affiliates' responsibilities to the
County, and its governmental and quasi-governmental subdivisions and similar entities of any
kind with respect to the Common Areas (including, without limitation, any and all obligations
imposed by any permits or approvals issued by the County and/or State of Florida or other
applicable governmental agency, as same may be amended, modified or interpreted from time to
time) and the Homeowners' Association shall indemnify and hold Declarant and its affiliates
harmless with respect thereto in the event of the Homeowners' Association's failure to fulfill those
responsibilities.
6.2 Owner Responsibilities. Each Owner of a Dwelling shall maintain or shall cause
to be maintained all portions of its Dwelling in a neat, orderly and attractive manner and shall pay
all ad valorem real and personal property taxes, if any, governmental assessments,trash removal
expenses,as well as water, sewer, electrical and other utility charges which are either submetered
or are not tied to central utility meters but which are attributable solely to such Dwelling.
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Notwithstanding the foregoing, the Homeowners' Association shall be responsible for the
maintenance of the exterior surfaces and roof of the Dwellings in accordance with Section 6.1.5
of this Declaration.
6.3 Contractors. The Homeowners' Association shall have the right to contract with
other parties, including affiliates, management companies and other service providers, for
providing services to perform any or all of its responsibilities set forth in this Article. All costs and
expenses incurred by the Homeowners' Association pursuant to any such contracts shall
constitute Common Expenses.
6.4 Responsibility for Wrongful Acts. Notwithstanding anything contained in this
Declaration, the expense of any maintenance, repair or construction of any portion of the
Properties, necessitated by the negligent or willful acts of any Owner or other Community
Beneficiary, or their family or guests shall be borne solely by such Owner or other Community
Beneficiary and their Dwelling shall be subject to an Individual Assessment for such expense.
6.5 Failure to Maintain. If an Owner of a Dwelling or any other party shall fail to
maintain any portion of the Properties in the manner required hereunder, the Homeowners'
Association may send written notice to such defaulting party and, if such obligations are not
performed by the defaulting party within thirty (30) days from the receipt of such notice, or such
additional time as may be reasonably required to cure such failure then, in addition to such other
remedies as may be available under this Declaration, the Homeowners' Association shall have
the right (without limiting any other rights that may be available) to enter upon the portion of the
Properties in question and perform such duties; provided, however, that such entry shall be during
reasonable hours and only after five (5) days' prior written notice. The party having failed to
perform its maintenance duties shall be liable to the Homeowners' Association for the costs of
performing such remedial work and shall pay a surcharge of not more than twenty-five percent
(25%)of the cost of the applicable remedial work, all such sums to be payable upon demand and
to be secured by the lien provided for in Section 7.13.1 of this Declaration. No bids need be
obtained for any of the work performed pursuant to this Article and the person(s) or company
performing such work may be selected by the Homeowners' Association in its sole discretion.
There is hereby created an easement in favor of the Homeowners'Association, and its applicable
designees over each applicable portion of the Properties for the purpose of entering onto thereon
in the performance of the work herein described, provided that the notice requirements of this
section are complied with.
Article 7
ASSESSMENTS
7.1 Common Expenses. By acquiring title to a Dwelling, each Owner agrees to pay its
share of the Common Expenses as hereinafter set forth. Other than as expressly provided to the
contrary herein, all expenses of every kind and nature which the Homeowners'Association incurs
or shall incur in connection with its maintenance and other obligations under Section 6.1 shall
constitute Common Expenses. The Common Expenses shall also include: (i) reserves, if any,
required by the Homeowners' Association for future expenditures to be incurred in the
maintenance, repair and replacement of various improvements to the Properties; provided,
however, that the Declarant shall have the right to waive such reserves at any time during which
it is a Class B Member of the Homeowners' Association; (ii) any and all costs of maintaining,
managing, insuring, repairing and replacing Common Areas, including, without limitation, the
Access Areas, Driveways and/or other facilities; (iii)any and all expenses relating to the operation,
maintenance and management of the Properties, including, without limitation, any portions of the
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Dwellings to be maintained by the Homeowners'Association (including salaries and employment
related costs of all employees and personnel employed by the Homeowners' Association); (iv)
property taxes and assessments on the Common Areas; (v) insurance on the Common Areas;
(vi) legal and accounting fees; (vii) management fees; normal repairs and replacements; (viii)
charges for utilities used upon the Common Areas; (ix) expenses and liabilities incurred by the
Homeowners' Association in the enforcement of its rights and duties under this Declaration; (x)
all costs relating to the District Permit, including, without limitation, any expenses incurred or
associated with the repair or maintenance of the surface water management system required
thereunder; and (xi) any and all other expenses deemed by the Homeowners' Association to be
necessary and proper for its management, maintenance, repair, operation and governance of the
Properties. Common Expenses shall not include costs relating to initial design and construction
of improvements to the Properties.
7.2 Percentage Shares of Assessments.
7.2.1 Percentage Shares of Assessments. The Percentage Share of a Dwelling
of all Assessments shall, at any time and from time to time, be equal to the percentage obtained
by dividing one (1) by the total number of Dwellings within the Properties at such time for which a
temporary or final certificate of completion or occupancy, or its equivalent, has been issued by
the County at the time of such General Assessments. For example, the Percentage Share of
Assessments of a Dwelling during a period in which there are one hundred (100) Dwellings within
the Properties for which a temporary or final certificate of completion or occupancy, or its
equivalent, has been issued by the County at the time of such Assessment shall be one percent
(1.0%).
7.2.2 Adjustments to Percentage Shares. To the extent permitted under
Applicable Law, the Homeowners' Association shall have the power and authority, from time to
time,to modify the Percentage Shares of Assessments set forth in Section 7.4.1 based upon the
state and extent of development of certain Common Areas and other portions of the Properties,
the levels of services being provided to the Dwellings and other relevant factors. In the event of a
dispute as to the Percentage Shares of Assessments, the determination of the Declarant shall be
dispositive.
7.3 Incomplete Dwellings. Notwithstanding anything to the contrary in this Declaration,
or in the Articles or the By-Laws, Assessments shall only be imposed against those Dwellings for
which a temporary or final certificate of completion or occupancy, or its equivalent, has been
issued by the County at the time of such Assessments, and Assessments of the Homeowners'
Association shall not be imposed against any other portions of the Properties.
7.4 Declarant's Obligations for Assessments. Notwithstanding anything in this
Declaration to the contrary, during the period in which the Declarant is a Class B Member, the
Declarant shall not be liable for the payment of any Assessments imposed upon any Dwellings which
are owned by the Declarant, or its affiliates, for any period during which the Declarant elects, at its
sole option, to be responsible for the payment of any Common Expenses incurred that exceed the
Assessments receivable from other Owners and other income of the Homeowners' Association
for any such time period(s). The Declarant may, at any time and from time to time, be relieved of all
obligations to fund deficits as aforesaid by electing, for any assessment or installment period or
periods, that Declarant, or its affiliates, will pay Assessments imposed on Dwellings, if any, owned
by each of them on the same basis as any other Owner. The Declarants responsibility, if any, for
payment of the Homeowners' Association's operating deficit shall automatically terminate (if not
sooner terminated)on the date that the Declarant's Class B membership is terminated.As of the first
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day of the first calendar month immediately following the termination of the Declarant's responsibility,
if any, for the payment of the Homeowners' Association's operating deficit(s), if any, the Declarant
shall, commencing with that date, be responsible for the payment of Assessments payable for any
Dwelling(s)owned by it as are normally required to be made by any other Owner under the terms of
this Declaration from and after that date. Declarant may from time to time change the option under
which Declarant is making payments to the Homeowners' Association by written notice to such
effect to the Homeowners'Association.When all Dwellings within the Properties are conveyed by
the Declarant, neither the Declarant, nor its affiliates, shall have further liability of any kind to the
Homeowners' Association for the payment of assessments, deficits or contributions.
7.5 Lien rights. The Homeowners' Association shall have the power and authority to
make and collect Assessments, and the lien rights against the Dwellings, as hereinafter set forth
and subject to the applicable provisions of the Act.
7.6 Liability for Assessments and Charges.
7.6.1 An Owner, regardless of how title is acquired, including a purchaser at a
judicial sale, shall be liable for all Assessments and other charges coming due with respect to its
Dwelling while it is the Owner. The Declarant shall be liable for all unpaid Assessments and
charges against each Dwelling, which it owns, up to the time of its conveyance, without prejudice
to any right the Declarant may have to recover from the Owner any amounts paid by the Declarant.
No Owner may waive or otherwise escape liability for Assessments by non-use(whether voluntary
or involuntary) of the Common Areas or abandonment of the right to use the Common Areas.
Neither the Declarant's lender nor the lenders, if any, of the Dwellings, shall be liable for any
Assessments unless and until any such lender acquires title to the applicable Dwelling, at which
time any such lender shall be liable for all Assessments accruing to such Dwelling after the date
it acquires title.
7.6.2 To the fullest extent permitted under Applicable Law, all Assessments shall
be a superior lien to all other liens, save and except tax liens and first mortgage liens in favor of
Institutional Mortgagees.
7.7 General Assessments.
7.7.1 General Assessments shall be determined annually for the purpose of
payment of Common Expenses.
7.7.2 The Homeowners' Association shall annually estimate the Common
Expenses for the upcoming year and shall assess the Owners, based upon their Percentage
Shares, sufficient monies to meet this estimate. Should the Homeowners'Association at any time
determine that the Assessments are not sufficient to pay the Common Expenses, or in the event
of emergency, the Homeowners' Association shall have the authority to levy and collect Special
Assessments for such purpose. All notices of Assessments from the Homeowners' Association
to the Owners shall designate when they are due and payable. All General Assessments shall be
charged based upon the Percentage Shares of the Dwelling set forth in Section 7.2.1 of this
Declaration. Notwithstanding anything contained to the contrary in this Declaration, any Dwellings
owned by the Declarant or any of its affiliates shall not be subject to Assessments for capital
improvements without the Declarant's prior written consent.
7.7.3 General Assessments shall be collectible in advance for each applicable
period commencing on the first day of the first month after a Dwelling has been granted a
temporary or final certificate of completion or occupancy, or its equivalent, has been issued by
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the County. A General Assessment shall be considered delinquent if not paid within ten (10)days
after the due date specified by the Homeowners'Association.
7.8 Special Assessments.
7.8.1 The Homeowners' Association may levy a Special Assessment against all
Owners for any of the following purposes: the acquisition of personal property; defraying the cost
of construction of capital improvements, capital repairs, or other capital expenditures to the
Properties, including, without limitation, any portions of the Dwellings to be maintained by the
Homeowners' Association, except for those capital improvements which are initially constructed
by the Declarant and except for Individual Assessments under Section 7.11 of this Declaration;
any portions of those Dwellings to be maintained and repaired by the Homeowners' Association
under this Declaration; and the costs and other expenses of design, construction, reconstruction,
unexpected substantial repair or replacement of a capital improvement, including the necessary
fixtures and personal property related thereto. Notwithstanding anything contained to the contrary
in this Declaration, any Dwellings owned by the Declarant or its affiliates shall not be subject to
Special Assessments for capital improvements without the Declarant's prior written consent.
7.8.2 All notices of Special Assessments from the Homeowners' Association to
the Owners shall designate when the Special Assessment is due and payable. All Special
Assessments shall be charged based upon the Percentage Shares set forth in Section 7.2.1 of
this Declaration. Special Assessments shall be collectible in such manner as the Homeowners'
Association shall determine. A Special Assessment shall be considered delinquent if not paid
within ten (10) days after the due date specified by the Homeowners' Association.
7.9 Emergency Special Assessments. The Homeowners' Association may levy an
Emergency Special Assessment when, in its sole determination, there is potential danger or
damage to persons or property.The Homeowners'Association shall not be required to obtain the
approval of the membership of the Homeowners' Association in connection with an Emergency
Special Assessment. Such Emergency Special Assessments may be utilized to pay for
preventative, protective or remedial design, construction, reconstruction, improvements, repairs
or replacements. Events justifying Emergency Special Assessments include, but are not limited
to, hurricanes, floods and fires. Notwithstanding anything contained to the contrary in this
Declaration, any Dwellings owned by the Declarant or its affiliates shall not be subject to
Emergency Special Assessments for capital improvements without the Declarant's prior written
consent.
7.9.1 Emergency Special Assessments shall be payable in such a manner as the
Homeowners' Association shall determine and all notices of Emergency Special Assessments
from the Homeowners' Association to the Owners shall designate when the Assessment is due
and payable. All Emergency Special Assessments shall be charged based upon the Percentage
Shares of the Dwellings as set forth in Section 7.2.1 of this Declaration. An Emergency Special
Assessment shall be considered delinquent if not paid within ten (10) days after the due date
specified by the Homeowners'Association.
7.10 Individual Assessments. The Homeowners' Association may levy an Individual
Assessment against a particular Dwelling for the cost of:
7.10.1 Any maintenance, repairs, replacements, or for fines imposed by the
Homeowners' Association pursuant to Section 11.1 of this Declaration. When, in the
Homeowners' Association's sole judgment, an Owner's failure or refusal to perform has impaired
the use or value of any portion of the Properties, or poses a safety hazard, the Homeowners'
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Association has a right of entry into all portions of the Properties, including, without limitation, any
individual Dwellings therein, to perform repairs, replacements, or to cure any violation of this
Declaration or the Rules and Regulations, including the right to abate or eliminate any nuisance;
or
7.10.2 Any maintenance of those portions of the Dwellings which are to be
maintained by the Association for which the Association determines in its sole judgment, require
extraordinary expenses for one or more, but not all, Dwellings; or
7.10.3 Any insurance premiums owed by a Dwelling pursuant to Article 9 of this
Declaration.
The Homeowners' Association may levy an Individual Assessment against a particular
Dwelling for the cost of any Individual Assessment shall include an administrative fee charged by
the Homeowners' Association in an amount to be determined from time to time by the Board in
its sole discretion.
7.11 Effect of Non-payment of Assessments.
7.11.1 Any Assessment that is unpaid for more than ten (10) days after the date it
is due shall bear interest, from the date when due, until the date it is paid, at a rate equal to the
lesser of(i) eighteen percent(18%) per annum or(ii)the highest rate allowable under Applicable
Law. In addition, the Owner of any Dwelling, with respect to which an Assessment is overdue by
more than ten (10) days, will be required by the Homeowners' Association to pay a late charge
equal to the greater of One Hundred and No/100 U.S. Dollars ($100.00) or five percent (5%) of
the amount of the delinquent Assessment, to compensate the Homeowners' Association for the
added administrative expense resulting from the delinquency. Any and all such amounts shall
become a continuing lien on the Dwelling against which the Assessment is made upon recording
of a claim of lien in the Public Records, and shall also be the continuing personal obligation of the
Owner of such Dwelling at the time of the Assessment.
7.11.2 If the Assessment is not paid within thirty (30) days after the due date, the
Homeowners' Association may, at any time thereafter, accelerate the entire amount due for the
period for which the Assessment was made, and declare the same immediately due and payable.
The Homeowners' Association may also record a claim of lien in the Public Records setting forth
the amount of the unpaid Assessment and the rate of interest due thereon. The Homeowners'
Association may at any time thereafter bring an action to foreclose the lien against the Dwelling
and/or a suit on the personal obligation against the Owner or Owners, and there shall be added
to the amount of such Assessment the cost of such action (including reasonable attorneys' fees
and costs through all appellate levels) and, in the event a judgment is obtained, such judgment
shall include interest on the Assessment and late charges as provided above and reasonable
attorneys'fees through all appellate levels, together with the costs of the action.
7.11.3 In the event that a check given to the Homeowners' Association for
payment of an Assessment, or for payment of any sums due hereunder shall be dishonored for
any reason whatsoever, the Homeowners' Association shall have the right, in its sole discretion,
to charge an administrative fee which shall, in no event, exceed One Hundred and No/100 U.S.
Dollars ($100.00). This fee shall be deemed to be a part of the Assessment, shall be secured by
the lien of the Assessment against the affected Dwelling, and may be enforced in the same
manner as any other Assessment.
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7,12 Lien of Mortgages. Except as hereafter provided, any mortgagee or its successors
or assignees who acquire title to a Dwelling by foreclosure or by deed in lieu of foreclosure is
liable for the unpaid Assessments that became due prior to the mortgagee's acquisition of title.
Notwithstanding the foregoing, in no event shall an Institutional Mortgagee, which is the holder of
a first mortgage on a Dwelling, be liable for more than the Dwelling's unpaid Assessments which
accrued or came due during the twelve (12) months immediately preceding the acquisition of title
to the Dwelling by the Institutional Mortgagee, and for which payment in full has not been received
by the Homeowners' Association, or one percent (1%) of the original mortgage debt, whichever
amount is less. The limitations contained in this section shall not apply unless the Institutional
Mortgagee joins the Homeowners' Association as a defendant in the foreclosure action. Joinder
of the Homeowners' Association is not required if, on the date the complaint is filed, the
Homeowners' Association was dissolved or did not maintain an office or agent for service of
process at a location which was known to or reasonably discoverable by the mortgagee. The
person acquiring title shall pay the amount owed to the Homeowners' Association within thirty
(30) days after the transfer of title. Failure to pay the amount owed to the Homeowners'
Association when due shall entitle the Homeowners' Association to record a claim of lien against
the Dwelling and proceed in the same manner as provided in this section for unpaid Assessments.
The foregoing limitation of liability shall apply to any purchaser at a foreclosure sale of a first
mortgage held by an Institutional Mortgagee, regardless of whether the purchaser is the holder of
the foreclosed mortgage. A mortgagee acquiring title to a Dwelling as a result of foreclosure or
deed in lieu thereof may not during the period of its ownership of such Dwelling, whether or not
such Dwelling is unoccupied, be excused from the payment of any of the Assessments coming
due during the period of such ownership. No sale or transfer shall relieve any Dwelling from liability
for any Assessment thereafter becoming due, or from the lien of any such subsequent
Assessment.
7.13 Certificate of Assessments. The Homeowners' Association shall prepare a roster
of the Dwellings and the Assessments applicable thereto, which shall be kept in the office of the
Homeowners' Association and shall be open to inspection by any Owner. The Homeowners'
Association shall, upon demand, furnish an Owner a certificate in writing signed by an officer of
the Homeowners' Association, setting forth whether the Owner's Assessments have been paid
and/or the amount which is due as of any date; provided, however, that the Homeowners'
Association shall charge One Hundred and No/100 U.S. Dollars ($100.00) for each certificate
requested by an Owner in excess of two (2) during any calendar year. As to parties without
knowledge of error, who rely thereon, such certificates shall be presumptive evidence of payment
or partial payment of any Assessments therein stated.
7.14 Estoppel Certificate. At the request of an Owner, or the Declarant, the
Homeowners' Association shall prepare an Estoppel Certificate which shall set forth any
Assessments and charges due upon any Dwelling at the time of conveyance and certify as to
whether or not there are violations of this Declaration or the Rules and Regulations with respect
to the Dwelling as of the date of preparation of such Certificate.
7.15 Declarant Credits. To the fullest extent permitted under Applicable Law, Declarant
may take credits against any unpaid Assessments for monies Declarant previously advanced on
behalf of the Homeowners'Association. These items shall specifically include, but not be limited
to, insurance premiums and Common Area utility charges and deposits, permit and license fees,
charges for service contracts, salaries of Homeowners' Association employees and other similar
expenses.
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Article 8
INDEMNIFICATION OF OFFICERS AND
DIRECTORS/INDEMNIFICATION OF DECLARANT
8.1 Indemnity. Each Owner, except Declarant and its affiliates, hereby indemnifies and
saves harmless all other Owners, from any and all liability, damage, expense, causes of action,
suits, claims or judgments arising from the Dwelling that is owned by it, or with respect to which it
has easement rights, except to the extent caused by the act or negligence of another Owner and
in such event only as to such other Owner whose act or negligence is excepted.
8.1.1 Indemnification of Officers and Board of Directors. Every officer and
member of the Board of Directors of the Homeowners' Association shall be indemnified by the
Homeowners' Association and the other Community Beneficiaries against all expenses and
liability, including attorneys' fees through all appeals, reasonably incurred by or imposed upon
such person in connection with any proceeding to which such person may be a party or in which
such person may become involved by reason of their being or having been an officer or member
of the Board of Directors, whether or not such person is an officer or member of the Board of
Directors at the time such expenses are incurred, except in such cases wherein the officer or
member of the Board of Directors is adjudged guilty of willful misfeasance or malfeasance in the
performance of such person's duties, provided that, in the event of any claim for reimbursement
or indemnification hereunder based upon a settlement by the officer or member of the Board of
Directors seeking such reimbursement or indemnification herein shall apply only if the
Homeowners' Association approves such settlement and reimbursement as being in the best
interest of the Homeowners'Association.The foregoing right of indemnification shall be in addition
to, and not exclusive of, all other rights to which such officer or member of the Board of Directors
may be entitled under the Articles or By-Laws of the Homeowners'Association.
8.1.2 Indemnification of Declarant. Each Owner, by acceptance of a deed to one
or more Dwelling, and each other Community Beneficiary, by the use of any easements relating
to the Properties, shall indemnify and hold the Declarant and its affiliates, the Homeowners'
Association and the Board of Directors harmless from and against any and all claims, demands,
fines, suits, actions, decrees and judgments (and any and all costs and expenses including
attorneys' fees through all appeals relating thereto) resulting from or in connection with loss of
life, bodily or personal injury or property damage arising (directly or indirectly)out of or on account
of any occurrence in, at or about the Properties, or occasioned (in whole or part) by use of the
Properties or any improvement thereon, while it owns, occupies or manages any portion of the
Properties, except to the extent the loss of life, injury or damage results from the gross negligence
or willful misconduct of any such indemnified party. Any amounts owed the Declarant or the other
indemnified parties by Owners pursuant to this section shall be levied against them as Individuals
Assessments.
Article 9
INSURANCE AND CONDEMNATION
9.1 Insurance. The Homeowners' Association shall maintain insurance (from a
company rated with a current A.M. Best Company, Inc. rating of B+or better), throughout the term
of this Declaration, in an amounts and for the coverages set forth in Section 9.3 of this Declaration.
9.2 Authority to Purchase; Named Insured. Notwithstanding anything to the contrary
in this Declaration and to the fullest extent permitted under Applicable Law, all insurance policies
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upon the Properties shall be purchased by or at the direction of the Homeowners' Association
and shall be placed in a single agency or company, if possible. Additionally, the Homeowners'
Association may elect (but shall not be obligated) to insure any structure or other improvement
which does not lie entirely within the Properties and the cost of any such insurance shall be a
Common Expense. The named insureds under any such policies purchased by the Homeowners'
Association shall be the Homeowners' Association (and its officers, directors, agents and
employees), without naming them, and its mortgagee, and such other parties, if any, which the
Homeowners'Association may determine,from time to time, should be added thereon. Provisions
shall be made for the issuance of mortgagee endorsements, certificates and memoranda of
insurance to any mortgagees.
9.3 Coverage.
9.3.1 Casualty Insurance. All buildings and insurable improvements located
within the Common Areas shall be insured for fire and extended coverage perils, excluding
foundation and excavation costs, and all personal property owned by the Homeowners'
Association shall be insured for its full insurable value, with such deductibles as may be
determined by the Board, in its sole and absolute discretion, all as determined annually by the
Board. When appropriate and obtainable, each of the foregoing policies shall waive the insurer's
right to: (i) pay only a fraction of any loss in the event of coinsurance or if other insurance carriers
have issued coverage upon the same risk; and (ii) avoid liability for a loss that is caused by an
act of the Homeowners'Association, or an Owner, or an officer thereof, or by one or more Owners
or as a result of contractual undertakings. Additionally, each policy shall provide that any
insurance trust agreement will be recognized, that the insurance provided shall not be prejudiced
by any act or omissions of individual Owners that are not under the control of the Homeowners'
Association,and that the policy shall be primary, even if an Owner has other insurance that covers
the same loss.
Every casualty insurance policy obtained by the Homeowners' Association, if desired by
the Homeowners'Association, or if required by Federal National Mortgage Association or Federal
Home Loan Mortgage Corporation shall have the following endorsement(to the extent applicable
and available at a commercially reasonable cost): (i) agreed amount and inflation guard; and (ii)
steam boiler coverage (providing at least$50,000 coverage for each incident at each location), if
applicable.
9.3.2 Public Liability Insurance. The Homeowners' Association shall obtain
public liability insurance covering the Common Areas of the Properties and insuring the
Homeowners' Association, and the Owners and such other parties, if any, as the Homeowners'
Association may,from time to time, determine should be added thereon, as their interests appear,
in such amounts and providing such coverage as the Homeowners' Association may determine,
from time to time, provided that the minimum amount of coverage is not less than $1,000,000.00
per occurrence and $2,000,000 in the aggregate. The liability insurance shall include, but not be
limited to, hired and non-owned automobile coverage.
9.3.3 Worker's Compensation Insurance. The Homeowners' Association shall
obtain Worker's Compensation Insurance in order to meet the requirements of law, as necessary.
9.3.4 Flood Insurance. The Homeowners' Association shall obtain flood
insurance to meet the requirements of federal, state or local law, or any regulation enacted
pursuant to federal, state or local law, as necessary, for the Common Areas, the Homeowners'
Association Property, if any, and for any of the Dwellings (or any portion thereof) for which such
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insurance is being obtained by the Homeowners' Association pursuant to Article 9 of this
Declaration.
9.3.5 Fidelity Insurance. The Homeowners' Association shall obtain fidelity
insurance covering all persons who control or disburse funds on behalf of the Homeowners'
Association, such insurance to be in an amount not less than three (3) times the total monthly
Assessments plus the amount estimated to be held in reserve accounts at the end of the then
current calendar year.The Board may also obtain such errors and omissions insurance, indemnity
bonds, fidelity bonds and such other insurance as it deems advisable, insuring the Board or any
management company engaged by the Homeowners'Association against any liability for any act
or omission in carrying out their obligations hereunder, or resulting from their membership on the
Board or any committee thereof.
9.3.6 Other Insurance. The Homeowners' Association shall obtain such other
insurance as the Homeowners' Association shall determine from time to time to be desirable
including acts and omissions coverage for members of the Board of Directors and officers of the
Homeowners' Association, and windstorm and other coverage for the Buildings and Association
Property, including portions for which the Homeowners' Association is responsible for
maintaining.
9.3.7 "Blanket" Insurance. The requirements of this Article may be met by way of
the Homeowners'Association being an insured party under any coverage carried by the Declarant
or under coverage obtained by the Homeowners' Association as long as such coverage is in
accordance with the amounts and other standards in this Article.
9.3.8 Subrogation Waiver. If available,the Homeowners'Association shall obtain
policies which provide that the insurer waives its right to subrogation as to any claim against other
Community Beneficiaries and their respective employees, agents and guests.
9.4 Premiums. Premiums upon insurance policies purchased by the Homeowners'
Association shall be paid by the Homeowners' Association. The cost of insurance premiums and
other incidental expenses incurred by the Homeowners'Association in administering and carrying
out any of the provisions of this Article shall be assessed against and collected from Owners as
part of the General Assessments. Notwithstanding the foregoing,the premiums for any insurance
for any Dwelling (or any portion thereof) for which such insurance is being obtained by the
Homeowners'Association pursuant to this Article 9 shall be assessed to any such Dwelling as an
Individual Assessment pursuant to Section 7.10 of this Declaration.
9.5 Shares of Proceeds. Except as otherwise provided in this Declaration, all
insurance policies purchased by the Homeowners' Association shall be for the benefit of the
Homeowners'Association, and the Owners, and their mortgagees, as their interests may appear,
and shall provide that all proceeds covering losses shall be paid to the Homeowners' Association
or at its option, to an insurance trustee. In the event a mortgagee endorsement has been issued
regarding any improvement on the Properties, the share of the Owner, if any, shall be held in trust
for each mortgagee and the Owner, as its interest may appear; provided, however, that no
mortgagee shall have any right to determine or participate in the determination as to whether or
not any damaged improvement shall be reconstructed or repaired, and no mortgagee shall have
any right to apply or have applied to the reduction of a mortgage debt any insurance proceeds,
except distribution of such proceeds made to the Owner and the mortgagee pursuant to the
provisions of this Declaration.
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9.6 Distribution of Proceeds. Proceeds of insurance policies received by the
Homeowners'Association, shall be held by the Homeowners'Association, or at its option, by any
such insurance trustee, if such proceeds exceed Twenty-Five Thousand and No/100 U.S. Dollars
($25,000.00), and distributed to or for the benefit of the Owners and other Community
Beneficiaries in the following manner:
9.6.1 Reconstruction or Repair. If the damage for which proceeds are paid is to
be repaired or reconstructed, such proceeds shall be paid to defray the cost of such repairs and
reconstruction in accordance with the provisions of this Article. Any proceeds which remain after
defraying such costs shall be distributed to the Owners based upon their Percentage Shares.
9.6.2 Failure to Reconstruct or Repair. If it is determined in the manner provided
in Section 9.8 that the damage for which proceeds are paid shall not be reconstructed or repaired,
such proceeds, subject to the following, shall be distributed to the Owners based upon their
Percentage Shares. There shall be no distribution of such proceeds until all debris, remains and
residue have been cleared and removed, and the damaged area has been properly landscaped.
In the event of loss or damage to personal and/or real property belonging to the Owners, and
should the Homeowners'Association determine not to replace such personal and/or real property
as may be lost or damaged, the proceeds shall be distributed to the Owners based upon their
Percentage Shares.
9.7 Homeowners' Association's Power to Compromise Claims. The Board of the
Homeowners' Association is hereby irrevocably appointed as agent for each Owner, and other
Community Beneficiary, and for each holder of a mortgage or other lien, for the purpose of
compromising and settling all claims arising under insurance policies purchased by the
Homeowners'Association, and to execute and deliver releases therefore upon payment of claims.
9.8 Determination to Reconstruct or Repair. If any part of the Properties shall be
damaged by casualty, the damaged property shall be reconstructed or repaired unless it is
determined by at least seventy-five percent (75%) of the Owners and by the Homeowners'
Association, that it shall not be reconstructed or repaired.
9.9 Plans and Specifications. Subject to requirements imposed by applicable
governmental rules and regulations, any reconstruction or repair of all or any portion of the
Properties must be substantially in accordance with the plans and specifications for the original
buildings; or, if not, then according to the plans and specifications approved by the Homeowners'
Association.
9.10 Estimates of Costs. Unless a determination is promptly made after the occurrence
of a casualty, in accordance with Section 9.8 of this Declaration, not to rebuild, replace or repair
damage to the Properties, then the Homeowners' Association has the responsibility of
reconstruction, repair or replacement, and the Homeowners'Association shall obtain reliable and
detailed estimates of the cost to rebuild, repair or replace such portions of the Properties. Such
costs may include professional fees and premiums for such bonds as the Homeowners'
Association requires.
9.11 Emergency Special Assessments for Restoration or Reconstruction. If the
proceeds of the insurance are not sufficient to pay the estimated cost of reconstruction, repair or
replacement by the Homeowners' Association, or if at any time during reconstruction, repair or
replacement, or upon completion of reconstruction, repair or replacement, the funds for the
payment of the costs of reconstruction and repair are insufficient, Emergency Special
Assessments shall be levied by the Homeowners'Association and assessed to the Owners of the
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affected portions of the Properties in sufficient amounts, and based on equitable allocation among
such affected portions, to provide funds for the payment of all such costs, as well as any
deductible required by the applicable insurance policy(ies). In determining the equitable allocation
among the affected portions of the Properties, the Homeowners' Association shall have the right
to, from time to time, adjust the equitable allocation among the affected portions of the Properties
based upon the levels of damage to each Dwelling or other portion of the Properties, and the
rights of the use of certain Limited Common Areas, and other relevant factors, as may be
reasonably determined by the Homeowners'Association.
9.12 Construction Funds. The funds for the payment of costs of reconstruction and
repair after casualty, which shall consist of proceeds of insurance held by the Homeowners'
Association, or by an insurance trustee, as applicable, and funds collected by the Homeowners'
Association from Emergency Special Assessments against Owners, shall be distributed in
payment of such costs in accordance with this Article.
The proceeds of insurance collected on account of a casualty, and the sums deposited
with the Homeowners' Association from collections of Emergency Special Assessments on
account of such casualty, shall constitute a construction fund which shall be disbursed in payment
of the costs of repair and construction in the following manner and order:
9.12.1 Homeowners'Association-Lesser Damage. If the amount of the estimated
cost of reconstruction, repair and replacement that is the responsibility of the Homeowners'
Association is less than Twenty-Five Thousand and No/100 U.S. Dollars ($25,000.00), the
construction fund shall be disbursed in payment of such costs upon the order of the Homeowners'
Association.
9.12.2 Homeowners' Association-Major Damage. If the amount of the estimated
cost of reconstruction, repair and replacement that is the responsibility of the Homeowners'
Association is Twenty-Five Thousand and No/100 U.S. Dollars ($25,000.00) or more, then the
construction funds held by the Homeowners' Association shall be disbursed in payment of such
costs in the manner required by the Homeowners'Association, and upon approval by an architect
or engineer qualified to practice in the State of Florida and employed by the Homeowners'
Association to supervise the work.
9.13 Surplus. It shall be presumed that the first monies disbursed in payment of the
costs of reconstruction, repair and replacement shall be from insurance proceeds. If there is a
balance in a construction fund after payment of all costs of the reconstruction, repair and
replacement for which the fund is established, such balance shall be distributed equally to the
Owners. Notwithstanding the foregoing, any portions which the Homeowners' Association
determines are attributable solely to insurance proceeds or funds provided by one or more of the
Dwellings shall be distributed to the Owner of such Dwelling(s).
9.14 Condemnation. In the event any portion of the Properties is condemned or taken
through eminent domain, the Owner of the property so taken shall be entitled to the full award
therefore as if this Declaration were not in existence and the other Owner(s) shall not be entitled
to share in any portion of the award as a result of the existence of this Declaration; provided,
however, that the foregoing shall not prevent an award to any other Owner(s) for the diminution
in value of the property of the other Owner(s), provided same does not reduce the award payable
to the Owner whose property was condemned or taken.
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Article 10
USE RESTRICTIONS
10.1 Nuisances. Nothing shall be done or maintained on any Dwelling which may be or
become an annoyance or nuisance to the occupants of other portions of the Properties. Any
activity on a Dwelling which interferes with television, cable or radio reception on another Dwelling
shall be deemed a nuisance and a prohibited activity. In the event of a dispute or question as to
what may be or become a nuisance, such dispute or question shall be submitted to the Board of
Directors, which shall render a decision in writing, which decision shall be dispositive of such
dispute or question.
10.2 Parking and Prohibited Vehicles. No person shall park any vehicle so as to obstruct
or otherwise impede ingress or egress to any Driveway, including, without limitation, any Driveway
assigned to another Dwelling. In addition to the foregoing, each Owner, and its respective tenant,
shall require that any guests, licensees, invitees, and other visitors of such Owner, or its tenant
(if applicable), refrain from parking in any Driveway assigned to another Dwelling, or any areas
not designated for visitor parking, if any, and, instead, use off-site parking for the parking of any
vehicles while visiting the Properties. Parking in the Properties shall be restricted to private
automobiles and passenger-type vans, jeeps, pick-up trucks and sport utility vehicles,
motorcycles, motor scooters (all of which are collectively referred to herein as "vehicles"). No
person shall park,store or keep on any portion of the Properties any large commercial type vehicle
(for example, dump truck, motor home, trailer, cement mixer truck, oil or gas truck and delivery
truck), nor may any person keep any other vehicle within any portion of the Properties which is
deemed to be a nuisance by the Board. No trailer, camper, motor home or recreational vehicle
shall be used as a residence, either temporarily or permanently, or parked on the Properties. The
Board shall have the authority to prohibit any vehicle, including any motorcycle or motor scooter,
which it determines constitutes a nuisance due to its noise level, particularly where such vehicle
is operated in the early morning or late evening hours. No vehicle is permitted within the Properties
which leaks oil, brake fluid,transmission fluid or other fluids. No Owner, occupant or other person
shall conduct repairs or restorations on any motor vehicle, or other vehicle, or race the engine of
any vehicle, upon any portion of the Properties. No more than one(1)motorcycle or motor scooter
may be parked in a single parking space, and in no event may a motorcycle or a motor scooter
be parked in the same parking space as another vehicle or between any parking spaces. For so
long as the Declarant conducts any sales or leasing activities on the Properties, its use of parking
spaces shall not be impeded or restricted. The prohibitions on parking contained in this section
shall not apply to temporary parking of: (a) commercial vehicles, such as for construction use or
providing pick-up and delivery and other services related to the Dwellings; (b) any vehicles of the
Declarant, or its affiliates or designees, used for construction, maintenance, repair, decorating,
sales or marketing purposes;or(c)service vehicles operated in connection with the Homeowners'
Association or its management company.
Subject to Applicable Law, any vehicle, boat, motorcycle or trailer parked in violation of
these or other restrictions contained herein or in the Rules and Regulations may be towed by the
Homeowners' Association at the sole expense of the owner of such vehicle. The Homeowners'
Association shall not be liable to the owner of such vehicle for trespass, conversion or otherwise,
nor shall it be guilty of any criminal act, by reason of such towing.
EACH OWNER ACKNOWLEDGES AND AGREES THAT CERTAIN PORTIONS OF
THE PROPERTIES MAY BE LOCATED BELOW THE FEDERAL FLOOD PLAIN, AND,
ACCORDINGLY, IN THE EVENT OF FLOODING, ANY PERSONAL PROPERTY STORED
THEREIN IS SUSCEPTIBLE TO WATER DAMAGE. ADDITIONALLY, INSURANCE RATES,
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BOTH FOR THE HOMEOWNERS' ASSOCIATION IN INSURING THE COMMON AREAS IN
WHICH PARKING SPACES ARE LOCATED, IF ANY, AND FOR OWNERS, MAY BE HIGHER
THAN IF THE COMMON AREAS WERE ABOVE THE FEDERAL FLOOD PLAIN. BY
ACQUIRING TITLE TO, OR TAKING POSSESSION OF, OR USING A DWELLING, OR USE
OF A PARKING SPACE, EACH OWNER, FOR ITSELF AND ITS TENANTS, GUESTS AND
INVITEES, HEREBY EXPRESSLY ASSUMES ANY RESPONSIBILITY FOR LOSS, DAMAGE
OR LIABILITY RESULTING THEREFROM.
10.3 Visibility at Intersections. No obstruction to visibility at street intersections shall be
permitted; provided that the Homeowners' Association shall not be liable in any manner to any
person or entity, including Owners and Community Beneficiaries, for any damages, injuries or
deaths arising from any violation of this section.
10.4 Exterior Alterations. No Owner or occupant of a Dwelling shall cause or allow
improvements or changes to the structure or exterior of any Dwelling or in any manner change
the appearance of any portion of the exterior of their Dwelling, without obtaining the prior written
consent of the Homeowners' Association (in the manner specified herein). No spas, hot tubs,
whirlpools or similar improvements shall be permitted on any patio or balcony without the prior
written consent of the Homeowners' Association, except as initially installed by the Declarant. No
exterior antennas, satellite dishes or similar equipment shall be permitted on any Dwelling or any
portion of the Common Areas. Notwithstanding the foregoing, upon obtaining the prior written
consent of the Homeowners' Association, satellite dishes and other devices permitted under
Applicable Law, may be installed within the Dwellings or any Limited Common Areas appurtenant
thereto. To the fullest extent permitted under Applicable Law, the Homeowners' Association may
enact rules and regulations which prohibit or otherwise restrict individual antennas, including
(without limitation): (a) prohibitions or restrictions based on the availability of a central antenna
system or other central reception facilities; and (b) requirements that any devices which may be
permitted under Applicable Law be of comparable size, weight and appearance, that any such
devices be installed and maintained in a manner designed to protect the safety of the Buildings
and its occupants, and that any such devices satisfy reasonable and uniform standards
established by the Homeowners' Association for architectural appearance purposes.
10.5 Signs. No sign, poster, display, billboard or other advertising device of any kind
including, without limitation, "FOR SALE," "FOR RENT," or construction signs shall be displayed
to the public view on any portion of the Common Areas or the Limited Common Areas, without
the prior written consent of the Homeowners' Association, except: (i) signs, regardless of size,
used by the Declarant, its successors or assigns or a party developing or marketing any portion
of the Properties, including signs used for construction or repairs, advertising, marketing, sales or
leasing activities; (ii) signs installed as part of the initial construction of the Dwellings and replace-
ments of such signs(similar or otherwise); (iii) bulletin boards, entrance, directional, informational
and similar signs used by the Homeowners' Association; (iv) signs, of reasonable size, provided
by a contractor for security services within ten (10)feet of any entrance to a Dwelling; and (v)as
may be required by legal proceedings, it being understood that the Homeowners'Association may
not grant permission for signs unless their erection is reasonably necessary to avert serious
hardship to the applicable Owner. Furthermore, the size and design of all signs, house
numbering, outside lamp posts, and other such materials shall be approved by the Homeowners'
Association and shall display continuity and conformity throughout the entire Properties. If
permission is granted, the Homeowners' Association reserves the right to restrict size, color,
content and location of signs. No sign shall be nailed or attached to a tree.
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10.6 Animal Restrictions. No more than two(2)household pets(as may be defined and
re-defined by the Homeowners' Association) shall be maintained in any Dwelling or any Limited
Common Area yard appurtenant thereto, if any, or any portion of the Common Areas. In no event
shall each such pet exceed seventy-five (75) pounds. Household pets shall not be kept, bred or
maintained for any commercial purpose and shall not become a nuisance or annoyance to
neighbors. Those pets which are not permitted under Applicable Law shall not be permitted within
the Community. Additionally, those pets which, in the sole discretion of the Homeowners'
Association, endanger health, safety, have the propensity for dangerous or vicious behavior(such
as pit bulldogs or other similar breeds or mixed breeds), make objectionable noise, or constitute
a nuisance or inconvenience to the Owners of other Dwellings shall be removed upon request of
the Homeowners' Association. Owners must pick up all solid wastes of their pets and dispose of
such wastes appropriately. All pets(including cats)must be kept on a leash of a length that affords
reasonable control over the pet at all times, or must be carried, when in any portion of the
Common Areas. No pet may be kept on a balcony or terrace when its owner is not in the Dwelling.
Without limiting the generality of Article 11 of this Declaration, any violation of the provisions of
this restriction shall entitle the Homeowners' Association to all of its rights and remedies,
including, but not limited to, the right to fine the Owners and tenants(as provided in any applicable
Rules and Regulations)and/or to require any pet to be permanently removed from the Properties.
The Homeowners' Association may from time to time limit the areas designated for walking pets.
Each Owner or occupant of a Dwelling shall be required to register its pet with the
Homeowners' Association. Owners and occupants or users of Dwellings, or any other portion of
the Properties, must pick up all solid wastes of their pets and dispose of such wastes
appropriately. The Homeowners'Association shall have the right, at any time, to require that any
pet on the Properties provide a DNA sample, which sample may be taken by swab of the interior
of such pet's mouth. The Homeowners' Association shall have the right to have any pet feces
tested for purposes of matching such feces with the DNA on file with the Homeowners'
Association and, in addition to any other remedy provided to the Homeowners'Association under
this Declaration or Applicable Law, shall have the right to fine Owners and tenants for each
violation of the foregoing restriction.
The Homeowners'Association may establish rules and regulations and a registration fee to defray
the costs associated with the accommodation of pets at the Properties.
In addition to any other rights provided under this Declaration or under Applicable Law,
the Board of the Homeowners'Association may require the Owner or other occupant of a Dwelling
to remove any pet from the Properties for repeated violations of this section, or, in the Board's
sole discretion, if such pet constitutes a danger to the Owners and other occupants of Dwellings.
If the owner of such pet fails to comply with such request, the Board may cause the pet to be
removed from the Properties,and all costs of such removal shall be the responsibility of the owner.
Every pet owner shall be strictly responsible for the behavior of such owner's pet, including any
damage to property or injury to persons caused by such pet, and shall indemnify and hold the
Declarant, the Homeowners' Association and every other Owner or occupant of a Dwelling
harmless from any damage or injury caused by the pet. The Homeowners'Association may adopt
rules and regulations that further regulate the keeping of pets within the Properties, including,
without limitation, the disposal of pet waste, noise, access to elevators and Common Areas with
pets, and the regulation or prohibition of pet activities within the Common Areas or other portions
of the Properties.
Any violation of the provisions of this restriction shall entitle the Homeowners'Association
to all of its respective rights and remedies, including, without limitation, the right to fine Owners
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and tenants (as provided in any applicable rules and regulations) and/or to require any pet to be
permanently removed from the Properties.
10.7 Trash. No Dwelling shall be used or maintained as a dumping ground for rubbish,
trash or other waste. All trash, garbage, grass, shrub or tree clippings and other waste shall be
kept in sanitary containers and, except during pickup, all containers shall be kept within
enclosures within each Dwelling (or in a containment area, if provided). No containers shall be
placed along the roadway prior to 7:00 p.m. of the day prior to each scheduled pick up. No odor
shall be permitted to arise therefrom so as to render the Property or any portion thereof unsanitary,
unsightly, offensive or detrimental to any Dwelling in the vicinity thereof or to its occupants. No
lumber, grass, shrub or tree clippings or plant waste, metals, bulk material or scrap or refuse or
trash shall be kept, except within an enclosed structure appropriately screened from view erected
for that purpose, if any, and otherwise in accordance with the approval of the Homeowners'
Association.
10.8 Temporary Structures. Except as may be used or permitted by the Declarant
during periods of construction or renovation, no structure of a temporary nature(including, without
limitation, trailers, tents, shacks or mobile offices) shall be located or used within the Properties.
Nothing herein shall prevent the Owner or occupant of a Dwelling from the display of one portable,
removable United States flag or official flag of the State of Florida in a respectful manner, and on
Armed Forces Day, Memorial Day, Flag Day, Independence Day, and Veterans Day may display
in a respectful manner portable, removable official flags, not larger than 4 1/2 feet by 6 feet, which
represents the United States Army, Navy, Air Force, Marine Corps, or Coast Guard, regardless
of any declaration rules or requirements dealing with flags or decorations and provided such flag
is not consistently stored in the front porch,terrace, balcony or otherwise visible from the roadway.
10.9 Renewable Resource Devices. Nothing in this Declaration shall be deemed to
prohibit the installation of energy devices based on renewable resources (e.g., solar collector
panels); provided, however, that same shall be installed only in accordance with the reasonable
standards adopted from time to time by the Homeowners' Association. Such standards shall be
reasonably calculated to maintain the aesthetic integrity of the Properties without making the cost
of the aforesaid devices prohibitively expensive.
10.10 Outside Items. No linens, clothing, household fabrics, curtains, rugs, or laundry of
any kind shall be hung, dried or aired from any windows, doors, balconies, terraces or other
portions of the Dwellings including any Limited Common Areas appurtenant thereto, or any
portions of the Common Areas. No equipment, materials or other items shall be placed on
balconies, patios or similar areas. The foregoing shall not prevent placing and using patio-type
furniture, planters and other items in such areas if the same are normally and customarily used
for a residential balcony or terrace area. In the event of any doubt or dispute as to whether a
particular item is permitted hereunder, the decision of the Board of the Homeowners'Association
shall be final and dispositive.
10.11 Bicycles, Play Equipment, Strollers, Etc. Bicycles,tricycles, scooters, skateboards,
and other play equipment, baby strollers and similar items shall not at any time be left in the
Driveways or other Common Areas of the Properties or in the Limited Common Areas (including
balconies, terraces and patios).
10.12 Occupancy and Use Restrictions; Permitted Uses. Except as otherwise herein
expressly provided, each Dwelling may be used only for residential purposes (other than in the
case of rights reserved to the Declarant). Notwithstanding the foregoing restriction, each Dwelling
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may be used as a home office or other commercial uses to the extent permitted under Applicable
Law.
10.13 Leasing of Dwellings. Leasing of Dwellings shall be subject to the prior written
approval of the Homeowners' Association. The Homeowners' Association shall from time to time
promulgate rules requiring a deposit from the prospective tenant in an amount not to exceed one
(1) month's rent ("Deposit"), to be held in an escrow account maintained by the Homeowners'
Association; provided, however, that the Deposit shall not be required for any Dwelling which is
rented or leased directly by or to the Declarant. No lease of a Dwelling shall be for a term of less
than three (3) months. When a Dwelling is leased, a tenant shall have all use rights in
Homeowners' Association Property and those Common Areas otherwise readily available for use
generally by the Owners, and the Owner(s) of the leased Dwelling shall not have such rights,
except as a guest, unless such rights are waived in writing by the tenant. Nothing herein shall
interfere with the access rights of the Owner as a landlord pursuant to Chapter 83, Florida
Statutes. The Homeowners' Association shall have the right to adopt rules to prohibit dual usage
by an Owner and a tenant of Homeowners' Association Property and Common Areas otherwise
readily available for use generally by Owners. Additionally, copies of all leases of Dwellings shall
be submitted to the Homeowners' Association and the tenants thereunder must register with the
Homeowners'Association prior to any occupancy. The Owner of a leased Dwelling shall be jointly
and severally liable with its tenants for any violations of this Declaration or the Rules and
Regulations of the Homeowners' Association, and agrees to pay any claim for injury or damage
to property caused by the negligence of the tenant and a special charge may be levied against
the Dwelling therefor.
Every lease shall provide (or, if it does not, shall be automatically deemed to provide)that:
(i)a material condition of the lease shall be the tenant's full compliance with the covenants, terms,
conditions and restrictions of this Declaration (and all exhibits hereto), and with any and all Rules
and Regulations adopted by the Homeowners' Association from time to time (before or after the
execution of the lease); and (ii) that a tenant may not, under any circumstances, sublet the
Dwelling (or any portion thereof)to any other person or permit occupancy by any other person.
All leases are hereby made subordinate to any lien filed by the Homeowners' Association
whether prior or subsequent to such lease.
10.14 Variances. The Board of Directors of the Homeowners'Association shall have the
right and power to grant variances from the provisions of this Article 10 (as they may relate to the
Common Areas)and from the Rules and Regulations (as they may relate to the Common Areas)
for good cause shown, as determined in the reasonable discretion of the Board. No variance
granted as aforesaid shall alter, waive or impair the operation or effect of the provisions of this
Article 10 in any instance in which such variance is not granted.
10.15 Declarant Exemption. Except as may be expressly provided to the contrary in this
Declaration, the Declarant shall be exempt from all restrictions set forth in this Declaration to the
extent such restrictions interfere in any manner with Declarant's plans for construction, repair,
development, use, sale or other disposition of the Properties, or any part thereof. In order that the
development of the Properties may be undertaken and the Properties established as a fully
occupied community, neither any Owner, nor the Homeowners' Association, shall do anything to
interfere with Declarant's activities. Without limiting the generality of the foregoing, nothing in this
Declaration shall be understood or construed to:
10.15.1 Prevent Declarant, its successors or assigns, or its contractors or
subcontractors, from doing on any property owned by them whatever they determine to be
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necessary or advisable in connection with the completion of the development of the Properties,
or the future development thereof (if any) including, without limitation, the alteration of its
construction plans and designs as Declarant deems advisable in the course of development(and
all models or sketches showing plans for future development of the Properties, as same may be
expanded, may be modified by the Declarant at any time and from time to time, without notice);
or
10.15.2 Prevent Declarant, its successors or assigns, or its contractors,
subcontractors or representatives, from erecting, constructing and maintaining on any property
owned or controlled by Declarant, or its successors or assigns or its or their contractors or
subcontractors, such structures as may be reasonably necessary for the conduct of its or their
business of completing said development, construction or repair, or any future development,
construction or repairs, and establishing the Properties as a community and disposing of the same
by sale, lease or otherwise; or
10.15.3 Prevent Declarant, its successors or assigns, or its contractors or
subcontractors, from conducting on any property owned or controlled by Declarant, or its
successors or assigns, its or their business of developing, subdividing, grading and constructing
improvements in the Properties and of disposing of Dwellings, or interests therein, by sale, lease
or otherwise, or any other portion of the Properties; or
10.15.4 Prevent Declarant, its successors or assigns, from determining in
its sole discretion the nature of any type of improvements to be initially constructed, or may in the
future be constructed, as part of the Properties; or
10.15.5 Prevent Declarant, its successors or assigns or its contractors or
subcontractors, from maintaining such sign or signs on any property owned or controlled by any
of them as may be necessary in connection with the operation of any Dwelling owned by Declarant
(its successors or assigns) or the sale, lease or other marketing of any Dwellings or any other
portion of the Properties, or otherwise from taking such other actions deemed appropriate; or
10.15.6 Prevent Declarant, or its successors or assigns from filing
Supplemental Declarations which modify or amend this Declaration, or which add or withdraw
additional property as otherwise provided in this Declaration; or
10.15.7 Prevent Declarant from modifying, changing, reconfiguring,
removing or otherwise altering any improvements located on the Common Areas; or
10.15.8 Prevent Declarant from exercising or otherwise utilizing or
benefiting from any future development rights or other reserved rights which it may have retained
with respect to all or any portion of the Properties.
Article 11
ENFORCEMENTS AND REMEDIES
11.1 Enforcement. This Declaration,the Articles and the By-Laws may be enforced by the
Homeowners'Association as follows:
11.1.1 Breach of any of the covenants contained in this Declaration or the By-Laws
and the continuation of any such breach may be enjoined, abated or remedied by appropriate legal
proceedings by the Declarant, the Homeowners'Association or their successors-in-interest.
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11.1.2 The result of every act or omission whereby any of the covenants contained
in this Declaration or the By-Laws are violated in whole or in part is hereby declared to be and
constitute a nuisance, and every remedy allowed by law or equity with respect to nuisances either
public or private shall be applicable and may be exercised by the Declarant or the Homeowners'
Association or their successors-in-interest.
11.1.3 The remedies herein provided for breach of the covenants contained in this
Declaration or in the By-Laws shall be deemed cumulative, and none of such remedies shall be
deemed exclusive.
11.1.4 The failure of the Homeowners' Association to enforce any of the covenants
contained in this Declaration or in the By-Laws shall not constitute a waiver of the right to enforce the
same thereafter.
11.1.5 A breach of the covenants, conditions or restrictions contained in this
Declaration or in the By-Laws shall not affect or impair the lien or charge of any Institutional
Mortgagee made in good faith and for value on any Dwelling; provided, however, that any
subsequent Owner of such Dwelling shall be bound by said covenants, conditions and restrictions,
whether such Owner's title was acquired by foreclosure sale or otherwise.
11.2 Fines. In addition to all remedies, in the sole discretion of the Board, a fine or fines
may be imposed upon an Owner and his Dwelling for failure of an Owner, his family,guests, invitees,
lessees or employees, to comply with any covenant, restriction, rule or regulation herein or in the
Articles or By-Laws, provided the following procedures are adhered to. To the maximum extent
permitted under Applicable Law, Declarant shall be exempt from the imposition of fines described in
the foregoing sentence.
11.3 Notice. The Homeowners' Association shall notify the Owner or occupant of the
infraction or infractions. Included in the notice shall be a date and time of the next Board meeting
at which time the Owner or occupant shall present reasons why fines should not be imposed. A
fine or suspension may not be imposed without notice of at least fourteen (14)days to the person
sought to be fined or suspended
(i) Hearing: The non-compliance shall be presented to a committee of
at least three (3) members appointed by the Board who are not Officers, Members of the Board
of Directors, or employees of the Homeowners'Association, or the spouse, parent, child, brother,
or sister of an Officer, Member of the Board of Directors, or employee. The committee shall hear
reasons why fines should not be imposed. A written decision of the committee shall be submitted to
the Owner or occupant by not later than twenty-one (21) days after the Board's meeting. If the
committee, by majority vote, does not approve a proposed fine or suspension, it may not be
imposed.
(ii) Penalties: The committee may levy reasonable fines, not to exceed
One Hundred and No/100 U.S. Dollars ($100.00) per violation or any greater amount permitted
under Applicable Law, against any Member, Owner or any tenant, guest, or invitee. A fine may
be levied on the basis of each day of a continuing violation, with a single notice and opportunity
for hearing, except that no such fine shall exceed the maximum amount, if any, permitted under
Applicable Law.
(iii) Payment of Penalties: Fines shall be paid not later than thirty (30)
days after notice of the imposition or assessment of the penalties.
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(iv) Collection of Fines: To the extent permitted under Applicable Law,
Fines shall be treated as an Assessment subject to the provisions for the collection of Assessments
(including, without limitation,those as to liens)as set forth in this Declaration and in the By-Laws.
(v) Application of Penalties: All monies received from fines shall be
allocated as directed by the Board.
(vi) Suspension. In addition to fines, the Homeowners' Association may
suspend, for a reasonable period of time, the rights of a Member or an Owner, or an Owner's
tenants, guests, or invitees, or both, to use Common Areas and other facilities. Suspension of
Common Area use rights shall not impair the right of an Owner or tenant of a Dwelling to have
vehicular and pedestrian ingress or egress.
(vii) Assessments. The requirements of this section do not apply to the
imposition of suspensions or fines upon any Owner because of the failure of the Owner to pay
Assessments or other charges when due; provided, however, that the Homeowners' Association
may suspend the voting rights of an Owner for the nonpayment of any Assessments that are
delinquent in excess of ninety (90) days.
11.4 Remedies. Anything to the contrary contained in this Declaration notwithstanding,
in the event of a violation or breach of any of the provisions contained in this Declaration, specific
performance and/or injunctive relief shall specifically be available, it being agreed that damages
would, at best, be difficult to ascertain and would be an inadequate remedy in any event. The
fines shall not be construed to be exclusive and shall exist in addition to all other rights and remedies
to which the Homeowners'Association may be otherwise legally entitled; however, any penalty paid
by the offending Owner or occupant shall be deducted from or offset against any damages which the
Homeowners'Association may otherwise be entitled to recover by law from such Owner or occupant.
EACH OWNER, MEMBER, AND EACH ASSOCIATION, SHALL BE DEEMED TO HAVE EACH
HEREBY WAIVED TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
PERTAINING TO THIS AGREEMENT.
11.5 Attorneys' Fees. The prevailing party in any action brought in connection with this
Declaration (whether in tort, contract or otherwise) shall be entitled to the award of court costs
and reasonable attorneys'and paralegals'fees at all trial and all appellate levels and in connection
with all proceedings, whether or not suit is instituted.
Article 12
MODIFICATIONS, SUPPLEMENTS AND AMENDMENTS
12.1 Legal Descriptions. It is understood that this Declaration is being executed prior to
the completion of construction of the improvements on certain portions of the Properties. Any
legal descriptions attached hereto for any portion of the Properties are based on a surveyor's
determination of the lines dividing the Dwellings and the remainder of the Properties, and the
actual location may vary somewhat. Therefore, Declarant reserves the right, power and authority
by itself, without the joinder or any person or entity whatsoever other than its mortgagee, if any,
to modify the legal descriptions of the dividing lines between Dwellings and the remainder of the
Properties, to conform to the "as built" improvements by recording a Supplemental Declaration in
the Public Records of the County, in which event the legal descriptions for any Dwelling, and the
remainder of the Properties, set forth in or attached to the Supplemental Declaration in the Public
Records of the County, shall supersede those attached hereto.
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12.2 Relocation of Utility Facilities. If either the Declarant or the Homeowners'
Association needs or desires from time to time to relocate or add to any of the existing utility
facilities serving any Dwelling or any other portion of the Properties (including easement areas),
the party so adding to, changing, rearranging, altering, modifying, relocating or building upon said
facilities shall be responsible, at its cost, for adding to, changing, rearranging, altering, modifying,
relocating or building upon said facilities shall be responsible, at its cost, for adding to, changing,
rearranging, altering, modifying, relocating or building upon such utility facilities, and same shall
be accomplished in a manner so as to minimize inconvenience to the Owners and the other
Community Beneficiaries.
12.3 Modification of Easements. Subject to the provisions in this Declaration, the
Homeowners' Association reserves the right at any time and from time to time, without the need
for obtaining consent or approval from any Owner to change, rearrange, alter, modify or otherwise
reduce any easements created hereby, provided same does not materially and adversely affect
any such other Owner(s). In the event any of same are accomplished with respect to the
easement areas located on any Dwelling same shall automatically release the area which is so
changed, rearranged, altered, modified, or otherwise removed from this Declaration.
12.4 Modifications to the Properties. The Buildings, and the improvements within a
Dwelling shall not be modified in such a way as to materially and adversely affect an Owner of
another Dwelling. Therefore, it is understood and agreed that, after initial construction, the
improvements on a Dwelling shall not be altered to: (a)materially increase the size or volume, (b)
materially change the configuration, or (c) increase the square footage, height or setbacks
without, in any such case, the consent of the applicable Owner and any mortgagee of the
Dwelling. In addition, the exterior portions of a Dwelling shall be maintained substantially in the
manner in which they were originally constructed and no material change in or to the exterior
portions (such as the color or finishes) of the improvements in a Dwelling shall be permitted
without the prior written consent of the Homeowners' Association.
12.5 Supplements. During the period in which the Declarant is the Class B Member of
the Homeowners' Association, and thereafter, to the extent permitted by Applicable Law, the
Declarant may, in its sole discretion and from time to time, add other property to the provisions of
this Declaration by Supplemental Declaration (which shall not require the consent of then existing
Owners, the Homeowners' Association, or any other Community Beneficiaries) and thereby add
to the Properties. Nothing in this Declaration shall, however, obligate Declarant to add to the
Properties, nor to prohibit Declarant from rezoning and changing its development plan with
respect to such future portions. All Owners, by acceptance of a deed to or other conveyance of
their Dwelling and all mortgagees of Owners, by acceptance of a mortgage on any Dwelling,
thereby automatically consent to any such rezoning, change, addition or deletion thereafter made
by the Declarant and shall evidence such consent in writing if requested to do so by the Declarant
at any time (providing, however, that the refusal to give such written consent shall not obviate the
general effect of this provision).
12.6 Withdrawal. During the period in which the Declarant is the Class B Member of the
Homeowners' Association, and thereafter, to the fullest extent permitted by Applicable Law, the
Declarant reserves the right to amend this Declaration unilaterally at any time, without prior notice
and without the consent of any person or entity, for the purpose of removing certain portions of
the Properties then owned by the Declarant or its affiliates from the provisions of this Declaration
to the extent included originally in error or as a result of any changes whatsoever in the plans for
the Properties desired to be effected by the Declarant.
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12.7 Declarant Amendments. During the period in which the Declarant is the Class B
Member of the Homeowners' Association, and thereafter, to the extent permitted by Applicable
Law, this Declaration may be amended by the Declarant to correct any errors or omissions or to
effect any other amendments whatsoever, provided such other amendment does not, in the
Declarant's sole judgment, have a materially adverse effect on substantial rights of any
Institutional Mortgagee who has not consented in writing to the amendment. In addition, during
the period in which the Declarant is the Class B Member of the Homeowners' Association, and
thereafter, to the extent permitted by Applicable Law, the Declarant shall have an absolute right
to make any amendments to this Declaration (without any other party's consent or joinder) that
are requested or required by the FNMA/FHLMC, the Government National Mortgagee or any
other governmental, quasi-governmental or governmental-chartered entity which owns or expects
to own one or more Institutional Mortgages encumbering the Properties, or any portion thereof,
or to insure the payment of one or more such mortgages, or that are requested or required by any
Institutional Mortgagee or prospective Institutional Mortgagee to enhance the marketability of its
mortgages to one or more of the foregoing. In addition, as long as it owns any portion of the
Properties, the Declarant shall have an absolute right to make any amendments to this Declaration
(without any other party's consent or joinder)that are requested or required by the Federal National
Mortgage Association, the Federal Home Loan Mortgage Corporation, the Government National
Mortgage Association or any other governmental, quasi-governmental or government-chartered
entity which owns or expects to own one or more first mortgages within the Properties, or to insure
the payment of one or more such mortgages,or that are requested or required by any first mortgagee
or prospective first mortgagee to enhance the marketability of its mortgages to one or more of the
foregoing. Except to the extent otherwise provided in this Declaration, an amendment may not
materially and adversely alter the proportionate voting interest appurtenant to a Dwelling or
increase the proportion or percentage by which a Dwelling shares in the Common Expenses
unless the record Owner and all record Owners of liens on such Dwelling, as well as a majority
voting interests of the Owners,join in the execution of the amendment.
12.8 Owner Amendments. This Declaration may also be amended by an instrument
signed by the President of the Homeowners' Association, attested to by its Secretary and
certifying that the amendment set forth in the instrument was adopted by a vote of at least sixty-
six and two-thirds percent(66 2/3%)of the votes to be cast by all Voting Members, at a duly called
meeting thereof; provided, however, that so long as Declarant or its affiliates is the Owner of any
Dwelling affected by this Declaration, and unless prohibited under Applicable Law, Declarant's
consent must be obtained if such amendment, in the sole opinion of Declarant, affects its interest.
12.9 Water Management District. No amendment may be adopted which would affect
the surface water management and/or drainage systems, including environmental conservation
areas,without the consent of the applicable water management district(the"District").The District
shall determine whether the amendment necessitates a modification of the current surface water
management permit (the "District Permit"). If a modification is necessary, the District will advise
the Association. The District has the right to take enforcement action, including a civil action for
an injunction and penalties against the Association to compel it to correct any outstanding
problems with the surface water management system facilities or in mitigation or conservation
areas under the responsibility or control of the Association.
12.10 Reservation of Development Rights, Entitlements, Signage Rights and Roof
Rights. The Declarant reserves and retains unto itself, on behalf of itself and its affiliates, their
respective successors and assigns, for their sole use and benefit, any and all right, title, interest
and ownership of,whether now or hereafter existing the following: (a)the development rights to any
and all future improvements which may from time to time be permitted under Applicable Law to be
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developed on any portion of the Properties including, without limitation (i) the right (but not the
obligation) to construct additional improvements, and (ii) any and all unused development rights
and interests relating to the Properties, including, without limitation, any and all severable or
transferable density allocations and use rights (collectively, the "Development Rights"); (b) the
impact, tax and other fees and credits, reimbursements, rebates, abatements, entitlements and
other benefits relating to the past, present or future development of all or any portion of the
Properties,which may now or hereafter be available from any Federal, state or local governmental
agency (the "Entitlements"); (c) any and all monument signs and other areas for signage on the
surface of the exterior portions of the Buildings, along with the exclusive naming rights for the
Buildings and all rights to use the name "VANDERBILT RESERVE" and derivations thereof (the
"Signage Rights"); and (d) the roof of each Building (other than rooftop terraces designated as
Limited Common Areas to the Dwellings)and other improvements within the Properties(the"Roof
Rights"). In no event shall the foregoing reservations be deemed to include any subsurface rights,
within the meaning of Section 689.29, F.S., or any right of entry in connection therewith.
In connection with the foregoing rights,the Declarant further reserves and retains, on behalf
of itself and its affiliates and their respective successors and assigns, such easements on, over,
under, through and across the Properties (including, without limitation, the Dwellings therein) as
may be necessary for use and enjoyment of its Development Rights, Entitlements, Air Rights,
Signage Rights, and Roof Rights, including, without limitation, the installation, repair, replacement
and maintenance of any such improvements and installations (whether placed or constructed
upon the roof of a Building or elsewhere)within the Properties.The Declarant, and its successors
and assigns shall also have an easement of subjacent lateral support and all other support over
any portions of the Properties which may now or hereafter contribute to the support of any such
improvements which are now or hereafter constructed within the Properties.
Notwithstanding anything to the contrary in this Declaration, in no event shall any
Development Rights, Entitlements, Air Rights, Signage Rights or Roof Rights, or any rights
relating thereto or otherwise arising in connection therewith, be deemed to be Common Areas of
the Properties, or an appurtenance to a Dwelling which automatically runs with title thereto unless
assigned by Declarant to such Dwelling. The rights and privileges reserved by the Declarant in
this section may at any time be assigned, leased, transferred and/or conveyed (in whole or in
part)to any affiliate of the Declarant or to any third party. Each Owner, by acceptance of title to a
Dwelling, and the Homeowners' Association, automatically and unconditionally (a) waives,
relinquishes and quitclaims unto the Declarant, and its successors and assigns, any and all right,
title and interest that it may now or hereafter have in the Development Rights, Entitlements, Air
Rights, Signage Rights and Roof Rights, and in any and all rights relating thereto or otherwise
arising in connection therewith; (b)acknowledges and agrees that the reservations of such rights
were fully taken into account in determining the purchase price of a Dwelling; (c) agrees to
execute, at the request of the Declarant, or any successor or assign thereof, all documents or
consents which may be required by any governmental or quasi-governmental agencies to allow
such party to obtain the benefits of the Development Rights, Entitlements, Air Rights, Signage
Rights and Roof Rights, including, without limitation, any plat or re-plat, unity of title, declaration,
covenant running with the land in lieu of unity of title, applications, permits or other documents,
amendments or modifications of subdivision restrictions or declarations of easement, or the use of
any Signage Rights by the Declarant, by any affiliate thereof,or by any third party;and(d)appoints
the Declarant, and any successor or assign or designee thereof, as its agent and attorney-in-fact
to execute, on behalf and in the name of such Owners and Condominium Associations, any and
all such documents or consents. Notwithstanding the foregoing, if requested by the applicable
party, each Owner and Homeowners' Association shall evidence their consent in writing
(provided, however, that any refusal to give such written consent shall not obviate the automatic
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effect of this provision). The foregoing power of attorney is irrevocable and coupled with an
interest. To the fullest extent permitted under Applicable Law, no portion of this section may be
amended, waived or otherwise abridged without the prior written consent of the Declarant.
No amendment, rule or regulation may be adopted by the Homeowners' Association, or
by the Members, which would eliminate, modify, prejudice, abridge or otherwise alter in any way
the rights granted or reserved, in this Declaration, in favor of the Declarant, without the approval
of at least eighty percent (80%) of all voting interests in the Properties, subject to the following
sentence; provided however, that nothing herein shall limit or impair the amendment rights of the
Declarant. Additionally, all rights granted or reserved to Declarant in this Declaration shall be
deemed an appurtenance to any Dwellings owned by the Declarant or its assigns (but only for so
long as the Declarant or its assigns owns such Dwellings), and shall not be eliminated, modified
or impaired by any amendment or by rule or regulation (other than an amendment enacted by the
Declarant)without the consent of the Declarant or its assigns, as appropriate
12.11 Effects of Amendments.Any duly adopted amendment to this Declaration shall run
with and bind the Properties for the same period and to the same extent as do the covenants and
restrictions set forth herein.
Article 13
DISCLAIMERS
13.1 GENERAL DISCLAIMER. DECLARANT HEREBY DISCLAIMS ANY AND ALL
EXPRESS OR IMPLIED WARRANTIES AS TO DESIGN, CONSTRUCTION, FURNISHING AND
EQUIPPING OF THE DWELLINGS AND REMAINDER OF THE PROPERTIES, EXCEPT AS
MAY BE REQUIRED BY APPLICABLE LAW. AS TO SUCH WARRANTIES WHICH CANNOT
BE DISCLAIMED, AND AS TO OTHER CLAIMS, IF ANY, WHICH CAN BE MADE AS TO THE
AFORESAID MATTERS, ALL INCIDENTAL AND CONSEQUENTIAL DAMAGES ARISING
THEREFROM ARE HEREBY DISCLAIMED.
13.2 SPECIFIC ADDITIONAL DISCLAIMERS OF REPRESENTATIONS,
WARRANTIES AND LIABILITY. NO REPRESENTATIONS OR WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, HAVE BEEN GIVEN OR MADE BY DECLARANT, THE
HOMEOWNERS' ASSOCIATION, OR ANY OF THEIR SUCCESSORS, ASSIGNS, OFFICERS,
DIRECTORS, MEMBERS, MANAGERS, COMMITTEE MEMBERS, EMPLOYEES,
MANAGEMENT AGENTS, CONTRACTORS OR SUBCONTRACTORS(COLLECTIVELY,THE
"LISTED PARTIES")NOR SHALL ANY SUCH PARTIES BE LIABLE OR RESPONSIBLE FOR
SUCH, UNLESS EXPRESSLY SET FORTH IN THIS DECLARATION, AND DECLARANT AND
THE LISTED PARTIES HEREBY SPECIFICALLY DISCLAIM ANY LIABILITY OR
RESPONSIBILITY FOR THE FOLLOWING:
13.2.1 ANY MATTERS RELATING TO THE VIEW, SECURITY, PRIVACY,
LOCATION, DESIGN AND DENSITY OF THE PROPERTIES, INCLUDING ANY DWELLINGS.
13.2.2 THE PREVENTION OF TORTIOUS ACTIVITIES, THE SECURITY,
HEALTH, SAFETY OR WELFARE OF ANY OWNER, OCCUPANT, COMMUNITY
BENEFICIARY, OR USE OF ANY OTHER PORTION OF THE PROPERTIES, INCLUDING,
WITHOUT LIMITATION, THEIR TENANTS, GUESTS, INVITEES, AGENTS, SERVANTS,
CONTRACTORS OR SUBCONTRACTORS. ANY PROVISIONS OF THIS DECLARATION, OR
OF THE ARTICLES OR BY-LAWS, SETTING FORTH THE USES OF ASSESSMENTS WHICH
RELATE TO ACCESS CONTROL FACILITIES, HEALTH, SAFETY AND/OR WELFARE
SHALL BE INTERPRETED AND APPLIED ONLY AS LIMITATIONS ON THE USES OF
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ASSESSMENT FUNDS AND NOT AS CREATING A DUTY OF THE RECIPIENT OF SUCH
ASSESSMENT FUNDS TO PROTECT OR FURTHER THE HEALTH, SAFETY OR WELFARE
OF ANY PERSON(S), EVEN IF ASSESSMENTS ARE CHOSEN TO BE USED FOR ANY SUCH
REASON.
13.2.3 THE PHYSICAL CONDITION, ZONING, COMPLIANCE WITH
APPLICABLE LAW, MERCHANTABILITY, HABITABILITY, FITNESS FOR A PARTICULAR
PURPOSE OF ANY PORTION OF THE COMMON AREAS OR OTHER PORTIONS OF THE
PROPERTIES, INCLUDING, WITHOUT LIMITATION, THE SALE, OPERATION, LEVEL OR
COST OF MAINTENANCE, TAXES OR REGULATION THEREOF AND, TO THE MAXIMUM
EXTENT PERMITTED UNDER APPLICABLE LAW, SUITABLITY FOR INTENDED USE OF
THE DWELLINGS, OR ALL OR ANY OTHER PORTION OF THE COMMON AREAS, OR
OTHER PORTIONS OF THE PROPERTIES.
13.2.4 BOWING AND/OR DEFLECTION OF MATERIALS, AND CRACKING
AND SETTLEMENT OF IMPROVEMENTS, WHICH EACH OWNER RECOGNIZES AND
AGREES IS TYPICAL OF THE TYPE OF IMPROVEMENTS IN THE PROPERTIES.
13.2.5 MOLDS, MILDEW, TOXINS AND FUNGI WHICH, GIVEN THE CLIMATE
AND HUMID CONDITIONS IN FLORIDA, MAY EXIST AND/OR DEVELOP WITHIN THE
DWELLINGS AND OTHER PORTIONS OF THE PROPERTIES. EACH OWNER IS HEREBY
ADVISED THAT CERTAIN MOLDS, MILDEW, TOXINS AND/OR FUNGI MAY BE, OR IF
ALLOWED TO REMAIN FOR A SUFFICIENT PERIOD MAY BECOME, TOXIC AND MAY
POTENTIALLY POSE A HEALTH RISK. EACH OWNER AGREES TO REGULARLY INSPECT
ITS DWELLING FOR PLUMBING LEAKS,WATER ACCUMULATION, CONDENSATION, AND
WATER INTRUSION THROUGH WINDOWS, DOORS AND ROOFS FOR ANY SIGNS OF
MOLD AND REGULARLY MAINTAIN ADEQUATE AIR CIRCULATION AND VENTILATION
BY CONTINUOUSLY OPERATING ITS HVAC SYSTEM.
13.2.6 NOISE, COMMOTION, ODOR AND OTHER UNPLEASANT EFFECTS
OF NEARBY CONSTRUCTION ACTIVITY,WHICH MAY IMPEDE THE USE OF PORTIONS OF
THE DWELLINGS,THE COMMON AREAS OR THE REMAINDER OF THE PROPERTIES FOR
SOME TIME IN THE FUTURE.
13.2.7 NOISE, MUSIC, VIBRATIONS, UNPLEASANT ODORS, FUMES,
SMOKE, COMMOTION AND OTHER UNPLEASANT EFFECTS EMANATING FROM THE
DWELLINGS AND OTHER PORTIONS OF THE PROPERTIES AND THE SURROUNDING
AREAS, INCLUDING,WITHOUT LIMITATION, FROM THE ACTIVITIES CONDUCTED WITHIN
OR OUTSIDE THE PROPERTIES,WHICH MAY CREATE DISTURBANCES AND IMPEDE USE
AND ENJOYMENT OF ALL OR A PORTION OF THE PROPERTIES.
13.2.8 ALL MATTERS RELATING TO OR OTHERWISE ARISING FROM THE
MASTER COVENANTS OR THE PROPERTIES GOVERNED THEREBY, INCLUDING,
WITHOUT LIMITATION, THE ACTIONS OR INACTIONS OF, OR ANY BREACHES BY, THE
MASTER ASSOCIATION.
13.2.9 ACTS OF GOD AND UNCONTROLLABLE EVENTS AND, GIVEN THE
LOCATION OF THE PROPERTIES, THE EXPOSURE TO THE POTENTIAL DAMAGES FROM
FLOODING AND FROM TROPICAL STORMS AND HURRICANES INCLUDING, WITHOUT
LIMITATION, DAMAGES FROM STORM SURGES AND WIND-DRIVEN RAIN AND IN ANY
PORTIONS OF THE IMPROVEMENTS LOCATED BELOW THE FEDERAL FLOOD PLAIN.
EACH OWNER ACKNOWLEDGES THAT PORTIONS OF THE IMPROVEMENTS MAY BE
DECLARATION OF COVENANTS,RESTRICTIONS
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LOCATED BELOW THE FEDERAL FLOOD PLAIN, AND, ACCORDINGLY, IN THE EVENT OF
FLOODING, ANY PROPERTY THEREIN IS SUSCEPTIBLE TO WATER DAMAGE.
13.3 EACH OWNER, BY ACCEPTING AND ACQUIRING TITLE TO A DWELLING,
AND EACH OTHER PERSON HAVING AN INTEREST IN OR LIEN UPON, OR MAKING ANY
USE OF, ANY PORTION OF THE PROPERTIES (BY VIRTUE OF ACCEPTING SUCH
INTEREST OR LIEN OR MAKING SUCH USES), SHALL BE BOUND BY THIS ARTICLE,
SHALL BE DEEMED TO HAVE ASSUMED THE RISKS ASSOCIATED WITH EACH OF THE
ABOVE MATTERS AND OCCURENCES AND SHALL BE DEEMED TO HAVE
AUTOMATICALLY WAIVED ANY AND ALL RIGHTS, CLAIMS, DEMANDS AND CAUSES OF
ACTION AGAINST THE DECLARANT AND THE HOMEOWNERS' ASSOCIATION ARISING
FROM OR CONNECTED WITH ANY MATTER FOR WHICH THE LIABILITY OF THE
AFOREMENTIONED PARTIES HAS BEEN DISCLAIMED IN THIS ARTICLE.
13.4 RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT,WHEN IT
HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY PRESENT
HEALTH RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER TIME. LEVELS OF RADON
THAT EXCEED FEDERAL AND STATE GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN
FLORIDA. ADDITIONAL INFORMATION REGARDING RADON AND RADON TESTING MAY
BE OBTAINED FROM YOUR COUNTY HEALTH DEPARTMENT. THE FOREGOING NOTICE
IS PROVIDED IN ORDER TO COMPLY WITH STATE LAW AND IS FOR INFORMATIONAL
PURPOSES ONLY. SELLER DOES NOT CONDUCT RADON TESTING WITH RESPECT TO
THE DWELLINGS OR THE REMAINDER OF THE PROPERTIES, AND SPECIFICALLY
DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES AS TO THE ABSENCE
OF RADON GAS OR RADON PRODUCING CONDITIONS IN CONNECTION WITH THE
DWELLINGS AND THE PROPERTIES.
13.5 LIMITATION OF DAMAGES. AS TO SUCH WARRANTIES WHICH CANNOT
BE DISCLAIMED, AND TO OTHER CLAIMS, IF ANY, WHICH CAN BE MADE AS TO THE
AFORESAID MATTERS, ALL INCIDENTAL AND CONSEQUENTIAL DAMAGES ARISING
THEREFROM ARE HEREBY DISCLAIMED TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW. ALL OWNERS, BY VIRTUE OF ACCEPTANCE OF TITLE TO THEIR
RESPECTIVE DWELLINGS (WHETHER FROM THE DECLARANT OR ANOTHER PARTY)
SHALL BE DEEMED TO HAVE AUTOMATICALLY WAIVED ALL OF THE AFORESAID
DISCLAIMED WARRANTIES AND ANY AND ALL CLAIMS INCIDENTAL AND
CONSEQUENTIAL DAMAGES.
13.6 REFERENCES TO DECLARANT AND HOMEOWNERS' ASSOCIATION. AS
USED IN THIS ARTICLE, REFERENCES TO DECLARANT SHALL INCLUDE WITHIN THEIR
MEANING THE DECLARANT AND ITS AFFILIATES, AND ALL OF THEIR MEMBERS,
MANAGERS, PARTNERS, SHAREHOLDERS, DIRECTORS, OFFICERS, BOARD MEMBERS,
EMPLOYEES, AGENTS, CONTRACTORS, SUBCONTRACTORS, SUPPLIERS, AFFILIATES
AND SUCCESSORS AND ASSIGNS. REFERENCES TO THE "HOMEOWNERS'
ASSOCIATION" SHALL INCLUDE WITHIN THEIR MEANING ALL OF ITS DIRECTORS,
OFFICERS, COMMITTEE AND BOARD MEMBERS, EMPLOYEES, AGENTS,
CONTRACTORS (INCLUDING MANAGEMENT COMPANIES), SUBCONTRACTORS,
SUCCESSORS AND ASSIGNS.
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AND RECIPROCAL EASEMENTS
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Article 14
GENERAL PROVISIONS
14.1 Institutional Mortgagee Protection. The following provisions are added hereto(and
to the extent these added provisions conflict with any other provisions of this Declaration, these
added provisions shall control):
a) The Homeowners' Association shall be required to make available
to all Owners and Institutional Mortgagees, and to insurers and guarantors of any first Institutional
Mortgage, for inspection, upon request, during normal business hours or under other reasonable
circumstances, current copies of this Declaration (with all amendments)and the Articles, By-Laws
and Rules and Regulations and the books and records of the Homeowners' Association.
Furthermore, such persons shall be entitled, upon written request (which request is hereby
deemed given by Declarant's Mortgagee), to(i) receive a copy of the Homeowners' Association's
financial statement for the immediately preceding fiscal year, (ii) receive notices of and attend the
Homeowners' Association meetings, (iii) receive notice from the Homeowners' Association of an
alleged default by an Owner in the performance of such Owner's obligations under this
Declaration, the Articles or the By-Laws of the Homeowners' Association, which default is not
cured within thirty (30) days after the Homeowners' Association learns of such default, and (iv)
receive notice of any substantial damage or loss to the Common Areas.
b) Any holder, insurer or guarantor of an Institutional Mortgage on a
Dwelling shall have, if first requested in writing (which request is hereby deemed given by
Declarant's Mortgagee), the right to timely written notice of(i) any condemnation or casualty loss
affecting a material portion of the Common Areas, (ii) a sixty(60)day delinquency in the payment
of the Assessments on a mortgaged Dwelling, (iii) the occurrence of a lapse, cancellation or
material modification of any insurance policy or fidelity bond maintained by the Homeowners'
Association, and (iv) any proposed action which requires the consent of a specified number of
Institutional Mortgage holders.
c) Any holder, insurer or guarantor of an Institutional Mortgage on a
Dwelling shall have the right to pay, singly or jointly, taxes or other charges that are delinquent
and have resulted or may result in a lien against any portion of the Common Areas and receive
immediate reimbursement from the Homeowners' Association.
d) Any holder, insurer or guarantor of an Institutional Mortgage on a
Dwelling shall have the right to pay, singly or jointly, any overdue premiums on any hazard
insurance policy covering the Common Areas or obtain, singly or jointly, new hazard insurance
coverage on the Common Areas upon the lapse of a policy and, in either case, receive immediate
reimbursement from the Homeowners' Association.
e) Notwithstanding anything to the contrary contained herein, no
portion of the Properties may be withdrawn from the effect of this Declaration without the prior
written consent of Declarant's Institutional Mortgagee.
14.2 Term. Subject to the amendment provisions of Article 12 hereof, the easements,
covenants and restrictions of this Declaration shall run with and bind the properties covered hereby,
and shall inure to the benefit of and be enforceable by the Homeowners'Association, the Declarant
and their respective successors and assigns, for a term of fifty (50) years from the date this
Declaration is recorded, after which time said covenants, conditions, easements, reservations of
easement, equitable servitudes and restrictions shall be automatically extended for successive
periods of ten (10) years, unless an instrument, approved by seventy-five percent (75%) of the
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Owners and seventy-five percent(75%)(in dollar amount)of the first mortgagees of record,has been
recorded revoking said covenants. If revoked in any other manner while the Declarant owns any
portion of the Properties,title to the Common Areas shall remain vested in the name of the Declarant
and the Declarant shall be free to erect barricades and prevent use of all or any portion thereof. No
prescriptive rights shall be established regardless of the nature or duration of use of the Common
Areas or any portion thereof.
14.3 Interpretation and Conflicts. The provisions of this Declaration shall be liberally
construed to effectuate its purpose of creating a uniform plan for the development of the Community
and for the maintenance of community facilities and Common Areas. The provisions of this
Declaration as well as those of the Articles, By-Laws and Rules and Regulations of the
Homeowners' Association shall be interpreted by the Homeowners' Association. Any such
interpretation of the Homeowners' Association which is rendered in good faith shall be final,
binding and conclusive if the Homeowners' Association receives the confirming consent of
Declarant and a written opinion of legal counsel to the Homeowners' Association, or the counsel
having drafted this Declaration or other applicable document, that the interpretation is not
unreasonable, which opinion may be rendered before or after the interpretation is adopted.
Notwithstanding any rule of law to the contrary, the provisions of this Declaration and the Articles,
By-Laws and the Rules and Regulations of the Homeowners' Association shall be liberally
construed so as to effectuate the purposes herein expressed with respect to the efficient operation
of the Homeowners' Association and the Properties, the preservation of the values of the
Dwellings, and the protection of Declarant's rights, benefits and privileges herein contemplated.
Section and subsection headings have been inserted for convenience only, and shall not be
considered or referred to in resolving questions of interpretation or construction. Unless the context
requires a contrary construction, the singular shall include the plural and the plural the singular, and
the masculine,feminine and neuter genders shall each include the others. This Declaration shall be
read as cumulative to and not in limitation of any other applicable declaration of covenants and
restrictions or declaration of condominium and exhibits thereto. As used in this section, the words
"its successors and assigns" specifically do not include purchasers of completed Dwellings. This
Declaration shall take precedence over conflicting provisions in the Articles and By-Laws of the
Homeowners' Association and said Articles shall take precedence over the By-Laws. The Board
shall be the ultimate interpreter of this Declaration and an opinion of counsel from counsel engaged
by the Board for such purpose, stating that any such interpretation is not unreasonable, shall
establish the validity of any such interpretation.
14.4 No Public Dedication or Grant of Riparian Rights. Nothing contained in this
Declaration shall be deemed to be a gift or dedication of all or any part of the Common Areas to the
public, or for any public use. Nothing in this Declaration shall be construed to expressly or impliedly
grant to any Owner, the Homeowners' Association or any other owner(s) of property within the
Properties any riparian rights appurtenant to any portion of the Properties, if any.
14.5 Water Management District Provisions. The following provisions are set forth in
satisfaction of the requirements of the District:
a) Conservation Easements. Dwellings may be adjacent to wetland
preservation or mitigation areas and upland buffers which are protected under conservation
easements.
b) Maintenance of Conservation Easements. The Association shall have the
responsibility to perpetually maintain conservation easements (preserved/restored/created
DECLARATION OF COVENANTS,RESTRICTIONS
AND RECIPROCAL EASEMENTS
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wetlands areas and upland buffer zones) and shall take action against Owners as necessary to
enforce the conditions of any and all conservation easements,
c) Enforcement. The Association reserves the right to levy fees and penalties
to cover the costs of maintenance activities related to the conservation easements.
d) Exceptions. Owners may not alter wetlands and upland buffers from their
natural/permitted condition with the exception of exotic or nuisance vegetation removal or
restoration in accordance with the restoration plan included in the conservation easement. Exotic
vegetation may include, but is not limited to, melaleuca, Brazilian pepper, Australian pine, and
Japanese climbing fern, or any other species currently listed by the Florida Exotic Pest Plant
Council. Nuisance vegetation may include, but is not limited to, cattails, primrose willow, and
grapevine.
e) Notice. The Homeowners' Association shall provide notice to Owners
regarding any mitigation/monitoring and/or financial assurances for which the Association is
responsible.
f) Signage.Owners shall be responsible for the perpetual maintenance of any
signage located on their property that is required by the District and relative to this section.
14.6 Constructive Notice and Acceptance. Every person who owns, occupies or acquires
any right, title, estate or interest in or to any Dwelling or other portion of the Properties shall be
conclusively deemed to have consented and agreed to every limitation, restriction, easement,
reservation, condition and covenant contained herein, whether or not any reference hereto is
contained in the instrument by which such person acquired an interest in such Dwelling or other
property.
14.7 Notices. Any notice required to be sent to any Member or Owner under the
provisions of this Declaration shall be deemed to have been properly sent when personally
delivered or mailed, postpaid, to the last known address of the person who appears as Member
or Owner on the records of the Homeowners' Association at the time of such mailing.
14.8 Covenant Running With the Land. All covenants and provisions of this Declaration,
the Articles, the By-Laws and the Rules and Regulations of the Homeowners' Association, shall, to
the extent applicable and unless otherwise expressly herein or therein provided to the contrary, be
perpetual and be construed to be covenants running with the land and with every part thereof and
interest therein, and all of the provisions hereof and thereof shall be binding upon and inure to the
benefit of the Declarant and subsequent owner(s)of the land or any part thereof, or interest therein,
and their respective heirs, personal representatives, successors and assigns, but the same are not
intended to create nor shall they be construed as creating any rights in or for the benefit of the general
public. All present and future Owners, tenants and occupants of Dwellings shall be subject to and
shall comply with the provisions of this Declaration and such Articles, By-Laws and Rules and
Regulations, all as may be amended from time to time. The acceptance of a deed or conveyance,
or the entering into of a lease, or the entering into occupancy of any Dwelling, shall constitute an
adoption and ratification of the provisions of this Declaration, and the Articles, By-Laws and
applicable Rules and Regulations of the Homeowners' Association, as they may be amended from
time to time, including, but not limited to, a ratification of any appointments of attorneys-in-fact
contained herein. In the event that any word, clause, sentence, paragraph, subsection, or section
hereof shall be judicially determined to prevent this Declaration from being fully enforceable and
running with the land as aforesaid, then such portion hereof shall be judicially modified, if at all
DECLARATION OF COVENANTS,RESTRICTIONS
AND RECIPROCAL EASEMENTS
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possible and, if not, shall be stricken herefrom (but only to the most limited extent necessary)so that
the paramount goal of the Declarant in making this Declaration (i.e., that this Declaration be a fully
enforceable covenant running with the land) is accomplished a pres.
14.9 Declarant Assignments. Notwithstanding anything to the contrary in this
Declaration, the Declarant may, from time to time, assign all or any portion of its rights hereunder,
or all or a portion of such rights in connection with a portion of the Properties. In the event of a
full ("blanket") assignment of all of the Declarant's rights (or remaining rights) hereunder to a
successor, assignee or pledgee, the result of which is that the Declarant named herein shall no
longer have any rights hereunder (whether immediately, because the assignment is absolute, or
after foreclosure of the assignee's security instrument, because the assignment is collateral in
nature), such assignee (or the purchaser at the foreclosure sale, if that is the case) shall be
deemed the Declarant for all purposes hereunder. In the event of an assignment of less than all
of the rights of the Declarant, as aforesaid, the assignee shall not be deemed the Declarant, but
may exercise such rights of the Declarant as are specifically assigned to it. Any partial (but not
"blanket") assignment of the Declarant's rights may be made on an exclusive, non-exclusive, or
conditional basis. The Declarant may not assign all (or all its remaining) rights hereunder to more
than one person or party hereunder at any one time unless the only such prior "blanket"
assignment(s) is/are collateral in nature (as security for a loan), in which event the Declarant may
make subsequent"blanket" collateral assignments which shall be subject and subordinate to the
security interest(s) of the prior collateral assignee(s). Any person or entity as to whom or which
all or certain of the Declarant's rights hereunder have been assigned may further assign such
assignee's rights, in whole or in part, unless restricted or prohibited in the assignment made by
the Declarant or a successor assignor thereof. Nothing contained in this Declaration, other than
in this section, shall be effective or construed to limit any of the foregoing rights of the Declarant
(or its or any other assignees or successors) to make any or all of the assignments provided for
in this section. If any assignment of all (or all then remaining)or a portion of the Declarant's rights
is given as security for a loan (whether by pledge, mortgage or other device which creates a
security interest in all or a portion of such rights), such assignee shall not have the right to exercise
such rights of the Declarant except as provided in the instrument of such assignment or, after
foreclosure of such security interest, in accordance with Applicable Law. Such assignee's rights
will inure to the benefit of any purchaser at a foreclosure sale which includes such rights; provided,
however, that such purchaser shall become the Declarant, as provided herein, only if the
aforesaid instrument of assignment is a full ("blanket") assignment of all of the Declarant's rights
(or remaining rights) hereunder.
14.10 Cooperation. Each Owner, by acceptance of a deed therefor or other conveyance
thereof, whether or not it shall be so expressed in such deed or other conveyance, shall be
deemed to covenant and agree, to cooperate in, and support, any and all zoning, administrative,
governmental and/or quasi-governmental filings, applications, requests, submissions and other
actions necessary or desired for development and/or improvement of the Properties, including,
without limitation, signing any required applications, plats, etc. as the Owner of any portion of the
Properties owned or controlled thereby when necessary or requested.
14.11 Standards for Consent, Approval and Other Actions. Whenever this Declaration
shall require the consent, approval, completion, substantial completion, or other action by the
Declarant or its affiliates, the Homeowners' Association, the Board, such consent, approval or
action may be withheld in the sole and unfettered discretion of the party requested to give such
consent or approval or take such action, and all matters required to be completed or substantially
completed by the Declarant or its affiliates or the Homeowners' Association shall be deemed so
completed or substantially completed when such matters have been completed or substantially
DECLARATION OF COVENANTS,RESTRICTIONS
AND RECIPROCAL EASEMENTS
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completed in the reasonable opinion of the Declarant or Homeowners' Association, as
appropriate.
14.12 Attorneys' Fees/Litigation/Waiver of Jury Trial. The prevailing party in any action
brought pursuant to or in connection with this Declaration (whether in tort, contract or otherwise)
shall be entitled to the award of court costs and reasonable attorneys' and paralegals' fees at all
trial and all appellate levels and in connection with all proceedings,whether or not suit is instituted.
As to any claim arising from or connected with the Declarant's construction, development, repair,
replacement or maintenance of the Properties, or the Declarant's operation of the Homeowners'
Association ("Development Matters"), it shall be a material condition precedent to the institution
of any proceeding regarding Development Matters that(i)the party or parties bringing same shall
have first given notice to the Declarant or other party against whom/which relief or recovery is
sought(the"Defendant")of the specific Development Matters complained of and what actions are
necessary to cure or correct same, and (ii)the Defendant shall have been given at least forty-five
(45) days (subject to extension by reason of matters beyond the control of the Defendant or
because of the nature of the applicable Development Matter(s) and the time necessary to cure or
correct same) in which to cure or correct the applicable Development Matter(s) and shall have
materially failed to do so. THE DECLARANT, THE HOMEOWNERS' ASSOCIATION, AND
EACH OWNER AND OTHER PERSON ACQUIRING ANY RIGHT, TITLE OR INTEREST IN OR
TO ANY DWELLING, OR ANY RIGHTS UNDER THIS DECLARATION, EACH HEREBY
WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
PERTAINING TO OR ARISING FROM THIS DECLARATION (WHETHER IN TORT,
CONTRACT OR OTHERWISE), INCLUDING, WITHOUT LIMITATION, ANY ACTION
RELATING TO A DEVELOPMENT MATTER. Without limiting the general binding effect of this
Declaration, each Owner and other person acquiring any right, title or interest in or to any
Dwelling, shall be deemed, by virtue of the acceptance of the conveyance, grant, transfer or
assignment thereof, to be fully bound by the provisions of this section, as shall the Declarant and
the Homeowners' Association.
14.13 Severability. The invalidity or unenforceability of any one of these covenants or
restrictions or any section, subsection, paragraph, subparagraph, sentence, clause, phrase or word,
or any other provision of this Declaration, the exhibits annexed hereto, or applicable Rules and
Regulations adopted pursuant to such documents, as the same may be amended from time to time,
shall not affect the validity and enforceability of the remaining portions hereof and thereof,all of which
shall remain in full force and effect.
14.14 Declarant Liability. To the fullest extent permitted under Applicable Law, the liability
of the Declarant under this Declaration, or any amendment or any instrument or document executed
in connection with this Declaration, shall be limited to and enforceable solely against the interest of
the Declarant in the Properties, and not against any other assets of the Declarant, or any member
or partner thereof(or any of their officers, principals, directors, employees, managers, members or
agents). Except to the extent, if any, set forth in an assignment of Declarant's rights under this
Declaration, any prior Declarant shall not be liable for any actions or inaction of any subsequent
Declarant, and any subsequent Declarant shall not be liable for any actions or inactions of any
prior Declarant.
14.15 Effective Date. This Declaration shall become effective upon its recordation in the
Public Records of the County.
DECLARATION OF COVENANTS,RESTRICTIONS
AND RECIPROCAL EASEMENTS
45
1 6 A R1
IN WITNESS WHEREOF, the undersigned has caused this instrument to be executed as
of the day and year first above written.
Signed,sealed and delivered in the presence of: Sobel Vanderbilt, LLC, a Florida
limited liability company
Print: �+�_. 4 M By: vy a _
��,�. �' — Name: . . „,.4.... le•
.iiin111'+ eel._
Title: / /NJ ' 0
...Pri riga ell. ' .41, . I.is A
STATE OF FLORIDA )
) ss:
COUNTY OF46,2Eid. )
pile foreg ir,� i strument w s acknowledged before me thisag. day of , 2011' by
..5402141..../( Oki, , as kaleY of Sobel Vanderbilt, LLC, a lorida limited liability
company, who is personally knownt o me or who has provided proper id tification in the form of
[Notary Se / / L Ce
STEPHAota Public, tate of ot?i t Large
c: ::i
.FOr,r;; 'Bonded Tin Public Widen/niter: .06//7/to-/P.
_ My Commission Expires: 7�
DECLARATION OF COVENANTS,RESTRICTIONS
AND RECIPROCAL EASEMENTS
46
16A8
JOINDER
VANDERBILT RESERVE HOMEOWNERS' ASSOCIATION, INC., a Florida corporation
not for profit, hereby agrees to accept all the benefits and all of the duties, responsibilities,
obligations and burdens imposed upon it by the provisions of this Declaration and exhibits
attached hereto.
IN WITNESS WHEREOF, VANDERBILT RESERVE HOMEOWNERS' ASSOCIATION,
INC. has caused these presents to a signed in its name by its proper officer and its corporate
seal to be affixed this P?.- day of , 201g_.
Witnessed by: VANDERBILT RESERVE HOMEOWNERS'
ASSOCIATION, INC., a Florida corporation not-for-
4 . profit
Name: j I Ccs t ,
..o . By:
/ , �l� ''C'.,iu • S.. ,.) -S i t-�t.. , President
ILL,/ /4'i7�
.►�filiPP' 'i1a , �s . Address: .23P.5/Vlt1��Crel.b�t✓�
ioc a ,e4- i, -W-1/
[Corporate Seal]
STATE OF FLORIDA )
��JJ )ss:
COUNTY OF 41.__A )
The fwegoiv, joinder was acknowledged before me this a; day ofd✓ .,i,� , 201 e
by 72. $D JAIN(Apse. , as President of Vanderbilt Reserve Homeowners Association, Inc., a
Florida not-for-profit corporation, who is personally known to me, or who has provided proper
identification in the form of
1 a4 rtild
[Notary Se ..� Y STEPHANIE IAATTOR/W0 Nota Public,,,Stat ri
MYcOM AIss,oN#GG21 44 Print Name:cCC�� rev
W EXPIRES:June 17,2022 6 /7/1.'JJ
'.,f�,•pbo,.' Bonded flxu Notary Puma Under My Commission Expires: D
DECLARATION OF COVENANTS,RESTRICTIONS
AND RECIPROCAL EASEMENTS
47