Welcoming families home for over 65 years.
2/2/2022 10:22:26 AM Instrument #2022025031 #1 Book:8196 Page:4772
DECLARATION OF COVENANTS,CONDITIONS,EASEMENTS,
AND RESTRICTIONS
FOR
EAGLE CREST
(Volusia County,Florida)
This document prepared by and after recording return to:
Christopher W.Hayes,Esq. Akerman LLP 420 S. Orange Avenue, Suite 1200 Orlando,Florida 32801
NOTICE:PURSUANT TOSECTION 6.05,UPON THE SALE ORRESALE OF A DWELLING, A CAPITAL OR RESALE ASSESSMENT IS REQUIRED TO BE PAID.
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DECLARATION OF COVENANTS,CONDITIONS,EASEMENTS,
AND RESTRICTIONS FOR EAGLE CREST
Table of Contents
PAGE
2 2 8 8 8 8 8 9
ARTICLE I DEFINITIONS
Section 1.01. Definitions Section 1.02. Interpretation
ARTICLE II PROPERTY SUBJECT TO THIS DECLARATION
Section 2.01. Initial Property Section 2.02. Additional Property Section 2.03. Method ofAnnexation
Section 2.04. Withdrawal
9 9
ARTICLE III THE ASSOCIATION Section 3.01. Section 3.02. Section 3.03. Section 3.04.
The Association; Directors; Officers; Meetings; Official Records Membership Voting Rights and Turnover ofAssociation Multiple Owners
14 14 15 16 16 16 16 17 17 18 18 18 19 19 19 20 20 20 20 20 23 25
ARTICLE IV PROPERTY RIGHTS IN THE COMMON AREAS Section 4.01. Easements Section 4.02. Title to Common Area Section 4.03. Limited Common Area Section 4.04. Extent ofEasements Section 4.05. Additional Easements over Common Area Section 4.06. Delegation Section 4.07. Reservation for Corrections Section 4.08. MSTU/MSBU Section 4.09. Conservation Easement Area(s)
ARTICLE V INSURANCE
Section 5.01. Section 5.02. Section 5.03. Section 5.04.
Basic Insurance
Additional Insurance Individual Insurance Insurance Premiums
ARTICLE VI COVENANT FOR MAINTENANCE ASSESSMENTS Section 6.01. Lien and Personal Obligation Nonpayment
Section 6.02. Purpose;Powers
Section 6.03. Determination ofAnnual Assessments
Section 6.04. Special Assessments 26 Section 6.05. Start-Up Assessment; Initial Annual Assessment; Capital or Resale Assessment; Due Dates 26 Section 6.06. Certificate 28
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28 28
Section 6.07. Subordination
Section 6.08. Funding by Declarant
29 29 29 29 30 30 30 31 31 31 31 31 33 33 33 33 33 34 34 34 35 35 35 37 37 37 37 37 38 38 38 38 38 39 39 41 41 42 42 42 42 42 43 44 44 44
ARTICLE VII ARCHITECTURAL CONTROL
Section 7.01. Architectural Control; ARC Section 7.02. Membership ofARC
Section 7.03. Approvals Section 7.04. Violations Section 7.05. Variances
Section 7.06. Waiver ofLiability
Section 7.07. Enforcement Section 7.08. Exemption
Section 7.09. No Waiver ofFuture Approvals
ARTICLE VIII EXTERIOR MAINTENANCE
Section 8.01. Owner's Responsibility Section 8.02. Assessment ofCost
Section 8.03. Access
Section 8.04. Association's Responsibility
ARTICLE IX RESTRICTIVE COVENANTS
Section 9.01. Wells
Section 9.02. Obnoxious or Offensive Activity
Section 9.03. Rules and Regulations
Section 9.04. Animals
Section 9.05. Garbage and Trash; Recycling
Section 9.06. Storage Receptacles
Section 9.07. Vehicles
Section 9.08. Visibility ofIntersections Section 9.09. Temporary Structures
Section 9.10. Signs
Section 9.11. Air Conditioning Equipment
Section 9.12. Exterior Electronic or Electric Devices; Solar Panels
Section 9.13. Subdivision Section 9.14. Completion Section 9.15. Excavation Section 9.16. Sidewalks
Section 9.17. Fences and Walls
Section 9.18. Yard Accessories and Play Structures
Section 9.19. Use; Rentals; Timesharing
Section 9.20. Pools
Section 9.21. Dwellings
Section 9.22. Tree Removal and Landscaping
Section 9.23. Debris
Section 9.24. Pumping or Draining; Drilling or Mining
Section 9.25. Ramps Section 9.26. Firearms
Section 9.27. Declarant Reservation Section 9.28. Conservation Tracts
Section 9.29. Mailboxes Section 9.30. Windows
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44 45 45 45 45 46 46 46 46 46 46 47
Section 9.31. Outdoor Drying Section 9.32. Use ofName
Section 9.33. Garages Section 9.34. Flags
Section 9.35. Holiday Decorations Section 9.36. Approved Builders
Section 9.37. Solicitation Section 9.38. Yard Sales
Section 9.39. Exterior Lighting Section 9.40. Traffic Hazards Section 9.41. Hurricane Shutters
Section 9.42. Variances
Section 9.43. Mitigation ofDampness and Humidity
477
ARTICLE X STORMWATER MANAGEMENT
47
Section 10.01. Association 47 Section 10.02. Ownership/Control, Maintenance, and General Use of Stormwater Management System 48 Section 10.03. Easements for Access and Drainage 50 Section 10.04. Amendmentto Declaration 50 Section 10.05. Enforcement 50
ARTICLE XI ADDITIONAL COVENANTS AND RESTRICTIONS
50
ARTICLE XII AMENDMENT
51 51 51
Section 12.01. Amendment by Members Section 12.02. Restrictions on Amendments
ARTICLE XIII HUD/PHA/VA AND DISTRICT APPROVAL RIGHTS
52
52
ARTICLE XIV DURATION AND TERMINATION
52 52 52 53 54 54 55 55 55 55 55 56 56 56 56
ARTICLE XV ENFORCEMENT
Section 15.01. Compliance by Owners Section 15.02. Enforcement Section 15.03. Fines; Suspension
ARTICLE XVIDAMAGE OR DESTRUCTION TO COMMON AREA
Section 16.01. Sufficient Insurance Proceeds Section 16.02. InsufficientInsurance Proceeds Section 16.03. Negligence or Willful Misconduct
ARTICLE XVII MORTGAGEE PROTECTION
Section 17.01. Records and Notices Section 17.02. Adverse Events
Section 17.03. Failure ofMortgagee to Respond
ARTICLE XVIII GENERAL PROVISIONS
Section 18.01. Notice
Section 18.02. Enforcement
-iv-
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-J14.
Section 18.03. Section 18.04. Section 18.05. Section 18.06. Section 18.07. Section 18.08. Section 18.09. Section 18.10. Section 18.11. Section 18.12. Section 18.13. Section 18.14. Section 18.15. Section 18.16. Section 18.17. Section 18.18.
Interpretation Severability Effective Date
56 56 56 56 57 57 57 57 57 57 58 58 58 59 59 59 59 59 61 61 62 62
Conflict
Cooperation Easements
No Public Right or Dedication
Constructive Notice and Acceptance
Execution ofDocuments Required by the Local Government
Construction
Assignment ofRights and Duties Breach Shall Not Permit Termination
Negation ofPartnership
Attorney Fees
No Vested Rights Community Signage
ARTICLE XIX DISCLAIMERS Section 19.01. Section 19.02. Section 19.03. Section 19.04. Section 19.05. Walls Safety General
Disclaimer ofRepresentations or Warranties
Wet and Dry Retention Areas
EXHIBIT"A"—INITIALPROPERTY
EXHIBIT "B" — ARTICLES
EXHIBIT "C" — BYLAWS
EXHIBIT"D"— COMMON AREA TRACTS
-v-
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DECLARATION OF COVENANTS,CONDITIONS,EASEMENTS, AND RESTRICTIONS FOR EAGLE CREST
THIS DECLARATION OF COVENANTS, CONDITIONS, EASEMENTS, AND RESTRICTIONS FOR EAGLE CREST is made as ofand on the Effective Date,by JTD Land atEagle Crest, LLC,a Florida limited liability company ("Declarant"), whose post office address is 210 Hangar Road, Kissimmee, FL 34741.
RECITALS:
A. Declarant owns the real property described in the plat for The Preserve at LPGA as Recorded in Plat Book ** Pages ** through ** inclusive, of the Public Records (the "Initial Plat"), being more particularly described on Exhibit"A"attached hereto(the"Property").
B. The Property is a proposed residential community known as "Eagle Crest" (the "Development").
C. Declarant is the developer ofthe "community"(as that term is defined in the Association Act)pursuant to the Association Act. The community is an ever-evolving one and must remain flexible in order to be responsible to and accommodate the needs ofthe Owners. The Declarant reserves the right to develop the community and adjacent property into residences, comprised of single family homes and other forms of residential dwellings. The existence at any point in time of trees, pastures, fields, lakes, walls, landscape screens or berms is not a guaranty or promise that such items will remain or form part of the community as finally developed. D. Declarant desires to preserve and enhance the values and quality of life on the Initial Property and the health, safety,and welfare ofthe residents thereof, and to provide for the maintenance of certain areas and improvements for the benefit ofthe Property. E. Declarant has incorporated the Association, which Association will be conveyed title to certain property, and which Association will be delegated the powers of and responsibility for maintaining and administering certain property and improvements, administering and enforcing this Declaration and the other Governing Documents, and collecting and disbursing the monies derived from the Assessments hereafter levied.
DECLARATIONS:
NOW,THEREFORE, Declarant declares that the Property is and shall be owned, improved, held,controlled,transferred and occupied subject to this Declaration.
The recitals above are incorporated herein as iffully set forth herein.
This Declaration is not intended to, nor does it create or establish a condominium under Chapter 718 ofthe Florida Statutes, a cooperative under Chapter 719 ofthe Florida Statutes, or a timeshare under Chapter 721 of the Florida Statutes. No condominium under Chapter 718 of the Florida Statutes, cooperative under Chapter 719 of the Florida Statutes, or timeshare under Chapter 721 of the Florida Statutes, may be created or established at any time upon the Property.
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Some ofthe definitions set forth in the Governing Documents may contain terms, conditions, and provisions that are necessary for: (i) the proper interpretation of the Governing Documents; and (ii) to fully understand the Members' rights, privileges, responsibilities, duties, liabilities, and obligations under the Governing Documents and under the Association Act. Capitalized terms used above or herein that are not defined in this Article I shall have the meanings given to such terms elsewhere in this Declaration. When used above or herein in this Declaration,the following terms shall have the following meanings: (a) "Additional Property" shall mean and refer to those lands, together with any improvements thereon, if any, which are made subject to this Declaration by annexation pursuant to Article II hereof. (b) "Annual Assessments" shall mean and refer to the full calendar year total ofassessments levied monthly,quarterly or annually by the Association pursuant to the "Association Act" and the"Budget"(as that term is defined in Section 6.03(a)ofthis Declaration). (c) "Architectural Control Provisions" shall collectively mean and refer to the terms, covenants, conditions, provisions, and limitations set forth it Article VII and Article IX ofthis Declaration. (d) "Area(s)ofCommon Responsibility" shall mean and refer to any land or improvement located in or near the Property which is not intended to be owned by the Association, but which is intended to be improved, maintained, or operated by the Association in the manner and to the extent determined from time to time by the Board. Areas of Common Responsibility may be designated by this Declaration, any Supplemental Declaration, a contract entered into by the Association, or by a decision ofthe Board.The following are hereby designated as Areas ofCommon Responsibility: Rights of Way and Entrance Area. Subject to limitations imposed by any Governmental Authority, the Association shall maintain, repair and replace to the extent determined by the Board, the signs; lighting fixtures; electrical equipment; drainage improvements in accordance with the Permit; irrigation lines and equipment; landscape materials and features; and other improvements from time to time located within the unpaved rights-of-way and unpaved medians in any rights-of-way as shown on any Recorded Plat; (ii) Street Lighting. The Association may arrange for and assess the Owners for the fixture rental, electrical usage and other costs of Street lighting for the Property and any Areas ofCommon Responsibility; and (iii) Easements. The Association shall maintain, repair and replace any walls, signs, lighting fixtures, electrical equipment, drainage improvements (in accordance with the Permit), irrigation lines and equipment, landscape materials and features, and other improvements from time to time located within all wall and landscape easements created in favor of the Association as shown on any Recorded Plat. Notwithstanding the foregoing, the Owner of each Lot encumbered by a wall easement shall maintain all landscaping lying between the wall and that Owner's Dwelling, and said Owner shall maintain the surface finish, if any, on the vertical surface of the wall
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which faces the Owner's Dwelling, failing which the Association shall perform the required maintenance and may levy an Individual Assessment to cover the costs thereof. Notwithstanding the foregoing, any Retaining Walls located within the Development, shall be maintained consistently with the obligations listed herein by the Lot Owner whose Lot is supported by such Retaining Wall (i.e. the Lot located at the higher elevation). The foregoing duties and prerogatives of the Association are subject to the terms of Article IV, hereof, regarding potential implementation of one or more MSTU/MSBU or similar mechanisms to assume responsibility for and collect the funds necessary to pay the costs of any ofthe foregoing or any other services that would otherwise be the responsibility of the Association under this Declaration or otherwise. (e) "Articles" shall mean and refer to the Articles of Incorporation of the Association. A copy ofthe initial Articles is attached as Exhibit"B"to this Declaration and made a part hereof. The Articles may be amended as provided therein, and it shall not be necessary to amend this Declaration in order to amend the Articles. (0 "Assessments" shall mean and include: (i) Annual Assessments or charges;(ii)"Special Assessments"(as that term is defined in Section 6.04(a) of this Declaration);(iii) "Individual Assessments"(as that term is defined in Section 6.04(b) of this Declaration);(iv)if required to be paid pursuant to the terms hereof or hereafter required by the Board from time to time, a one-time only start-up assessment("Start-Up Assessment");(v)assessments or amenity fees permitted pursuant to the Association Act; and (vi) any interest and late charges that may be imposed by the Board at its discretion, and the cost ofcollection ofany ofthe foregoing,including, without limitation, court costs and expenses/fees and reasonable attorneys' and paralegals' fees before trial, at trial, and on appeal.
(g) "Association" shall mean and refer to the Eagle Crest Homeowners
Association,Inc., a Florida notfor profit corporation, and its successors and/or assigns.
(h) "Association Act"shall mean and refer to the laws ofthe State ofFlorida applicable to the operations ofthe Association on the Effective Date(as opposed to as amended,restated, or re-codified from time to time), including, but not necessarily limited to, those laws set forth in Chapters 617 and 720 of the Florida Statutes. Chapter 720 of the Florida Statutes, being the Florida legislation specifically enacted to govern the Association and the "Community"(as that term is defined in the Chapter 720 ofthe Florida Statutes), shall in all instances trump the more general legislation set forth in Chapter 617 ofthe Florida Statutes. In the event ofany ambiguity or conflict between Chapter 617 and 720 of the Florida Statutes, Chapter 720 shall govern as necessary to resolve any such ambiguity or conflict.
"Board","Board ofDirectors" or "Directors" shall mean and refer to the
Board ofDirectors ofthe Association.
(i) "Builder" or "Homebuilder" shall mean and refer to any person or legal entity that has acquired or that acquires title to any Lot expressly in furtherance of:(1)the business of developing the Lot for eventual construction ofDwellings thereon in the ordinary course ofsuch person's or entity's business; or(2)the business ofconstructing Dwellings thereon, in the ordinary course ofsuch person's or entity's business, for later sale to bona fide Third-Party Purchasers that are not Builders or affiliates of a Builder. After the Turnover occurs, Declarant shall be considered and deemed a Builder with regard to or concerning any Lot(s)that Declarant then owns or thereafter acquires title to, and with Declarant,as a Builder, automatically being deemed to and having all rights, powers, benefits, easements,
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and reservations afforded to a Builder under the Governing Documents or that may be delegated to a Builder by Declarant under the Governing Documents.
(k) "Bylaws" shall mean and refer to the Bylaws ofthe Association. A copy ofthe initial Bylaws are attached as Exhibit"C" to this Declaration and made a part hereof The Bylaws may be amended as provided therein, and it shall not be necessary to amend this Declaration in order to amend the Bylaws. (I) "City" shall mean and refer to the City of Daytona Beach, Florida, a political subdivision of the State of Florida, specifically including each and all of its departments, divisions, and agencies. (m) "Common Area(s)" or"Common Property" shall mean and refer to the real and personal property from time to time owned or intended to be owned by the Association and devoted to the use and enjoyment of all Members ofthe Association, all at Common Expense. Without limiting the generality ofthe foregoing,the Common Area Tracts shall be Common Area. Common Area shall include, but not be limited to, easement areas which are held by the Association as grantee, including, but not limited to, any private access and drainage easements and private drainage easements (though in the event such Common Area is established by easement the Association's obligations and rights thereto may be limited by the terms ofthe document creating such easement). Additional Property may contain Common Area, but no commitment is made that any Additional Property will in fact contain Common Area. The definition of "Common Area" and "Common Property" shall also include the definition of"common area" defined in the Association Act. (n) "Common Area Tract(s)" shall initially mean and refer only to the platted tracts set forth on the Initial Plat and identified on Exhibit "D" attached hereto and made a part hereof as to be owned (in fee simple no later than Turnover)by the Association, which exhibit also depicts, subject to the terms of this Declaration, the party or entity responsible for maintaining said Common Area Tracts. (o) "Common Expense" shall mean and refer to the actual and estimated expense of operating the Association and meeting the costs to be incurred by the Association in performing its duties and in exercising its prerogatives, including, without limitation, costs incurred for operation, management, administration, maintenance, repairs, replacement, insurance and improvement of the Common Area and Areas of Common Responsibility, and for any reserves from time to time established to be set aside by the Board. Except as may be expressly set forth herein, all undertakings or activities of the Association concerning the Property, the Community, the Common Area, the Areas of Common Responsibility, and enforcing the provisions of the Governing Documents, shall be done at Common Expense. Such expenses for management may include, by way of example but not limitation, bonuses or special fee arrangements for meeting certain goals specified by the Association or Declarant.
(p) "Community Development District": As defined in Chapter 190 of the
Florida Statutes.
(q)
"Conservation Easement": As defined in Article IV,Section 4.09 hereof.
(r) "Conservation Easement Area(s)" shall mean and refer to any areas or portions of the Property from time to time included within, or subjected to, a Conservation Easement pursuantto the provisions ofArticle IV,Section 4.09 hereof
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(s) "County" shall mean and refer to Volusia County, Florida, a political subdivision ofthe State of Florida, specifically including each and all of its departments, divisions, and agencies. (t) "Declarant" shall mean and refer to JTD Land at Eagle Crest,LLC,LLC, a Florida limited liability company, its successors and/or assigns. No successor or assignee of Declarant shall have any rights, privileges, liabilities or obligations ofDeclarant under this Declaration or any other Governing Document unless such rights and obligations are specifically set forth in a Recorded instrument of succession and/or assignment, or unless such rights expressly pass by operation of Law from Declarant to such successors and/or assigns.
(u) "Declaration" shall mean and refer to this Declaration of Covenants, Conditions,Easements,and Restrictions for Eagle Crest,as amended,modified,restated or supplemented.
(v) "Deficit Fund" or "Deficit Funding" shall mean and refer to Declarant's
subsidizing ofthe Common Expenses ofthe Association pursuant to Section 6.08 hereof.
(w) "Division" shall mean and refer to the Division of Florida Condominiums, Timeshares, and Mobile Homes, or any successor governmental agency, division, or department ofthe State ofFlorida.
(x) "District" shall mean and refer to the St. Johns River Water Management
District, an agency created pursuantto Chapter 373,Florida Statutes.
(3)1 "Dwelling" or "Residence" shall mean and refer to any single family
residence or dwelling unit located on a Lot.
(z) "Effective Date" shall mean and refer to the date that this Declaration is
Recorded in the Public Records.
(aa) "Electronic Transmission" shall mean and refer to any form of communication, not directly involving the physical transmission or transfer of paper, which creates a record that may be retained, retrieved, and reviewed by a recipient and which may be directly reproduced in a comprehensible and legible paper form by such recipient through an automated process. Examples of Electronic Transmission include, but shall not be limited to, telegrams, facsimile transmissions, Short Message Service (SMS), Multimedia Messaging Service(MMS), and email. Notices may be given via Electronic Transmission for and regarding any meetings ofthe Board, any committee meetings requiring notice under the Association Act,including, but not limited to, ARC meetings,and any annual and special meetings ofthe Members; provided, however,that a Member must consent in writing to receiving notice by Electronic Transmission. Consent by a Member to receive notice by Electronic Transmission shall be revocable by the Member only by written notice to the Board. (bb) "Fiscal Year" shall mean the first fiscal year shall begin on the date of incorporation and end on December 31 of that year ("Fiscal Year"). Thereafter, the Fiscal Year of the Association shall begin on the first day ofJanuary and end on the 31"day ofDecember ofevery year. (cc) "Governmental Authority(ies)" shall mean and refer to any federal, state or local authority, court, department, division, legislature or instrumentality having authority, control or jurisdiction over or concerning the Development, the Property, the Community, the Areas of Common Responsibility, the Association, the Members and/or the Owners, including, but not limited to, the Local Government.
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(dd) "Governing Document(s)" shall collectively mean the "governing
documents"(as that term is defined in the Association Act)and the Rules and Regulations.
(ee) "Homeowners' Association" shall mean as such term is defined in the
Association Act.
(ff) "Law" or "law" shall mean and refer to all laws, statutes(including, but not limited to, the Association Act), codes, ordinances, rules, requirements, regulations, orders, decrees and judgments ofany Governmental Authority having jurisdiction over the Association,the Property,the Community,the Declarant or the Owners or Members. (gg) "Limited Common Area" means any and all real and personal property, easements,improvements,facilities and other interest, ifany, as more particularly described in Article IV, Section 4.03 hereof, which are reserved for the use of Owner(s)of certain Lots to the exclusion of other Owner(s)and/or other Lots.
(hh) "Limited Common Expense(s)" shall mean and refer to Common
Expenses with respect to any Limited Common Area.
(ii) "Lot" shall mean and refer to each residential building site created by
any Recorded Plat ofthe Property, including any Dwelling located thereon once constructed.
"Local Government" shall mean and refer to, as applicable, the County
and/or the City.
(kk) "Member" shall mean and refer to each Member of the Association as
provided in Article III, Section 3.02 hereof.
(11) "Monetary Obligation"shall mean and refer to any monetary obligations, including, but not limited to, Assessments, due to the Association by any Member pursuant to the Governing Documents,the Rules and Regulations,or under the Association Act.
(mm) "Mortgage" shall mean and refer to any first-lien or first-position
mortgage encumbering a Lot or Dwelling that was granted or made in good faith and for value.
(nn) "Mortgagee" shall mean and refer to the owner and holder of a Mortgage, which owner and holder of said Mortgage may be a bank, savings bank, mortgage company, life insurance company, federal or state savings and loan association, an agency of the United States government, private or public pension fund, the United States Department of Veterans Affairs (the "VA"), the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, a credit union, real estate or mortgage investment trust or any other lender generally recognized as an institutional lender in the County.
(oo) "Officer(s)" shall have the meaning given to such term in the Articles or
the Bylaws.
(pp) "Owner" shall mean and refer to the record holder, whether one or more persons or entities, of fee-simple title to any Lot in the Property, but, notwithstanding any applicable theory of the law of mortgages, the term "Owner" shall not mean or refer to any Mortgagee unless and until such Mortgagee has acquired title to a Lot pursuant to an unappealable, final, lawful foreclosure proceeding or a proper and lawful conveyance by deed in lieu offoreclosure. All owners of a single Lot
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shall be treated for all purposes as a single Owner, irrespective of whether such ownership is joint, in common,or by tenancy by the entirety.
(qq) "Permit" shall mean and refer to General Environmental Resource
Permit No. 158251-2 issued by the District.
(rr) "Property" shall initially mean and refer to the real property legally described in the Initial Plat (the "Initial Property"), together with any Additional Property hereafter annexed to this Declaration pursuantto Article II hereof. (ss) "Public Records" shall mean and refer to the official or public records of the County,or such other place designated from time to time as the official County location for Recording documents affecting and encumbering title to real property and any improvements located thereon.
(tt) "Record," "Recordation", "Recording," or "Recorded": To record, the
recording of,ofappearing ofrecord,ofan instrument in the Public Records.
(uu) "Recorded Plat(s)" shall mean and refer to any and all subdivision plats of the Property, including the Initial Plat, Recorded in the Public Records. The description of any Common Areas on the Recorded Plat is subject to change and the notes on a Plat are not a guarantee of what improvements will be constructed within the Common Areas. Site plans and renderings used by the Declarant or Builders in their marketing efforts may illustrate the types of improvements that may be constructed within the Common Areas but such site plans are not a guarantee of what improvements will actually be constructed. Each Owner should not rely on the Recorded Plat or any site plans used for illustration purposes as this Declaration governs the rights and obligations ofthe Declarant, Builders, and Owners with respect to the Common Areas. (vv) "Rules and Regulations" shall mean and refer to the Rules and the Architectural Guidelines, as any ofthe foregoing may be amended, modified or supplemented from time to time. (ww) "Street(s)" shall mean and refer to the rights-of-way of all streets, roads, alleys, drives, courts, ways and cul-de-sacs within the Property as the same are described in and depicted on any Recorded Plat, and all paving, curbs and other improvements, facilities and appurtenances constituting part ofthe roadway system within the Property.
(xx) "Supplemental Declaration" shall mean and refer to any instrument which extends the effect ofthis Declaration to any Additional Property pursuant to Article II hereof
(yy) "Stormwater Management System" or "Surface Water Management System" shall mean and refer to a system which is designed and constructed or implemented to control discharges which are necessitated by rainfall events, incorporating methods to collect, convey, store, absorb, inhibit, treat, use or reuse water to prevent or reduce flooding, overdrainage, environmental degradation, and water pollution or otherwise affect the quantity and quality of discharges from the system,as permitted pursuant to Chapter 62-330,F.A.C. (zz) "Tenant" or "tenant" shall mean and refer to any tenant, lessee, subtenant, or sublessee, beneficiary under any land trust pursuant to Section 689.071 of the Florida Statutes, or any other occupant or possessor that is not the Owner thereof of any Lot or improvement thereon, whether or not such relationship is documented by a lease, a sublease, a trust agreement, or any other document or writing, where said occupancy by the non-Owner involves consideration(the payment
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ofmoney,the exchange ofgoods,services, points, or any other exchange ofvalue)(collectively,"Lease" or "lease"). The terms "Lease" or "lease" shall be used interchangeably for the purpose of this Declaration. The terms "tenant," and "lessee," and "licensee" shall likewise be used interchangeably in this Declaration.
(aaa) "Turnover" shall mean and refer to the transition of control of the
Association by Declarant pursuant to Section 720.307 ofthe Association Act.
(bbb) "Turnover Meeting" shall mean and refer to the meeting at which Members other than Declarant elect a majority of the Directors pursuant to Section 720.307 of the Association Act. Section 1.02. Interpretation. The provisions of the Governing Documents shall be liberally construed so as to effectuate the purposes herein expressed with respect to the efficient operation ofthe Association and the Property,the preservation ofthe value ofthe Lots, and the protection ofDeclarant's rights, benefits and privileges herein contemplated and to the fullest extent permitted by the Association Act. Notwithstanding that some or all ofthe Governing Documents may have been prepared, initially, at the direction of Declarant, and notwithstanding any rule of construction to the contrary, the Governing Documents shall not be more strictly construed or interpreted against Declarant or any of Declarant's affiliates than against any other person or entity.
ARTICLE II
PROPERTY SUBJECT TO THIS DECLARATION
Section 2.01. Initial Property. The Initial Property is and shall be owned, improved, held, controlled,transferred and occupied subject to this Declaration.
Section 2.02. Additional Property. Declarant shall have the right, but not the obligation, to bring within the scope of this Declaration, as Additional Property, lands lying adjacent to or in the vicinity of the Initial Property, at any time and from time to time within twenty (20) years after the Effective Date(the "Potential Additional Property"). Unless and until annexed,this Declaration shall not encumber or bind in any way any ofthe Potential Additional Property. Except as provided in Article XIII hereof, annexation of any or all of the Potential Additional Property as Additional Property may be accomplished by Declarant without the consent of the Association, the Owners, the Members, any Mortgagee or other lien holder,or anyone else. Section 2.03. Method ofAnnexation. Additions authorized under this Article II shall be made, if at all, by recording a Supplemental Declaration extending this Declaration to the Additional Property. The Supplemental Declaration shall describe that portion ofthe Potential Additional Property annexed as Additional Property and shall state that it is being made pursuant to the terms ofthis Declaration for the purpose of annexing that portion of the Potential Additional Property to this Declaration and extending the jurisdiction of the Association to such Additional Property. The Supplemental Declaration may contain additional terms not inconsistent with this Declaration to reflect the different character, if any,of the Additional Property then being annexed or of the housing or development approaches being implemented with respect to such Additional Property. Upon the Recordation of any Supplemental Declaration in the Public Records,the Owners shall also have a right and non-exclusive easement of use and enjoyment in and to the Common Area,ifany,located on the Additional Property, and the obligation, as a Common Expense,to contribute to the cost ofoperating, managing,maintaining,repairing, operating, administrating, replacing, insuring and improving: (a) the additional Common Area located within the Additional Property; and(b)any additional Areas of Common Responsibility located within the vicinity
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ofthe Additional Property. Any Supplemental Declaration Recorded in the Public Records in accordance with the terms hereof shall be conclusive in favor of all persons who rely on such Supplemental Declaration in good faith. From and after Recordation of any Supplemental Declaration in the Public Records, the Additional Property described therein shall be subject to the provisions ofthis Declaration and to thejurisdiction ofthe Association. Section 2.04. Withdrawal. Declarant reserves the right to amend this Declaration unilaterally at any time and for any reason for the purpose of removing any portion of the Property (including, without limitation, Lots and Common Area) without notice and without the consent of any person or entity whatsoever, other than the owner ofthe portion ofthe Property to be withdrawn or the District, if consent by the District is required; provided, however, that no such withdrawal may impair vehicular or other access to any Lot as established by the applicable Recorded Plat.
ARTICLE III
THE ASSOCIATION
Section 3.01. The Association; Directors; Officers; Meetings; Official Records.
(a) Association. The Association is and shall remain a Florida nonprofit corporation. The Association shall have the power to do all lawful things which may be authorized, assigned, required or permitted to be done by the Association by virtue and authority of the Governing Documents and applicable Law,and to do and perform any and all acts which may be necessary or proper for, or incidental to, the exercise of any ofthe duties or powers ofthe Association for the benefit ofthe Owners and for the operation, maintenance, administration, repair, replacement, insurance and improvement of the Property, the Community, the Common Area and all Areas of Common Responsibility. Neither the Articles, the Bylaws nor any of the other Governing Documents shall be amended or interpreted so as to be or become inconsistent with this Declaration.In the event ofany such inconsistency,the provisions ofthis Declaration shall prevail. The Board,and such Officers as the Board may appoint from time to time, shall conduct the affairs of the Association. Notwithstanding anything contained herein to the contrary, pursuant to and consistent with Section 720.317 ofthe Florida Statutes, electronic voting is permitted as to any matter that requires a vote ofthe Members.
(b) Directors.
(i) Number. At all times, the Board shall consist of at least (3) Directors and shall always be an odd number. Prior to Turnover,(y)the Board shall consist of three(3)Direetors unless Declarant, by notice to the Association,increases the Board; and(z)the number ofDirectors may not be increased or decreased without Declarant's prior written consent, which consent may be granted or denied by Declarant in its sole and absolute discretion. The term of office of the initial Directors appointed herein by Declarant shall expire at the time of Turnover, unless otherwise required by Florida law. After Turnover, Directors shall be elected to the Board by a vote of the Members. On the Turnover Date the Members shall elect three (3) Directors: one (1) Director for a term of one (1) year, one (1) Director for a term of two (2) years, and one(1)Director for a term ofthree(3)years. The candidates receiving the most votes shall be elected to office. Of such candidates receiving the most votes, the candidate with the most votes shall serve as the Director for three (3) years; the candidate receiving the second highest number of votes shall serve as Director for two(2)years; and the candidate receiving the third highest amount of votes shall serve as Director for one(1)year. At each Annual Members Meeting thereafter, the members shall elect the appropriate number of new Directors at the Annual Members Meeting (except that the term of any Director appointed by Declarant shall
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extend until the date designated by Declarant, or until the Turnover Date. Notwithstanding anything in the foregoing to the contrary, Declarant shall, without regard to the number of votes allocated to Declarant, be entitled to appoint one (1) Director for as long as Declarant is the Owner of at least five percent(5%)of the total number of Lots within the Property. Nothing contained in the foregoing, however, is intended, nor shall be deemed, to create any obligation upon Declarant to exercise such right to appoint such one(1)Director. (ii) Appointment; Election. Prior to Turnover, Declarant, as the Class B Member, shall have the sole and absolute right to appoint, remove, and recall all of the Directors; provided, however,that if at any time Declarant is not permitted under Florida law to appoint, remove, or recall such Directors, then the Class A Members shall have the sole and absolute right to elect, remove, and recall all such Directors, which election, removal or recall, to the fullest extent permitted under the Association Act, may be conducted via written consent of the Class A Members, in lieu of a meeting of the Class A Members. Notwithstanding the foregoing, Members other than Declarant are entitled to elect at least one (1) Director if fifty percent(50%)ofthe Lots in all phases ofthe Community which will ultimately be operated by the Association have been conveyed to Members other than Declarant. Any Directors appointed by Declarant or elected by the Class B Member prior to Turnover, or appointed or elected by Declarant pursuant to this (ii) need not be Members and need not be residents of the State of Florida. All other Directors shall be Class A Members or designated representatives ofthe Class B Member,and residents ofthe State ofFlorida. After Turnover,no Member or Owner may serve as a Director if: (i) such Member or Owner is more than ninety (90) days delinquent or deficit with regard to payment ofany Monetary Obligation owed to the Association, or(ii)such Member or Owner has been convicted ofany felony in the State ofFlorida or in a United States District or Territorial Court, or has been convicted of any offense in another jurisdiction would be considered a felony in the State ofFlorida, unless such individual's civil rights have been restored for at least five(5) years as ofthe date such individual seeks election to the Board. Any Director charged by information or indictment with a felony theft or embezzlement offense involving the Association's funds or property shall immediately be deemed removed from office. The Board shall fill the vacancy according to the provision ofthis Declaration until the end ofthe period of the suspension or the end ofthe Director's term ofoffice, whichever occurs first. However,ifthe charges are resolved without a finding of guilt or without acceptance of a plea of guilty or nolo contendere, the Director shall be reinstated for any remainder of his or her term of office. A Member who has such criminal charges pending may not be appointed or elected to a position as a Director. (iii) Educational Requirements. Within ninety (90) days after being elected or appointed to the Board,each Director shall certify in writing to the Secretary/Treasurer that he or she has read the Governing Documents, the Rules and Regulations, and any other written rules and policies ofthe Association; that he or she will work to uphold such documents and policies to the best of his or her ability; and that he or she will faithfully discharge his or her fiduciary responsibility to the Members. Within ninety(90)days after being elected or appointed to the Board, in lieu of such written certification, the newly elected or appointed Director may submit a certificate of having satisfactorily completed the educational curriculum administered by a Division-approved education provider within one(1) year before or ninety(90) days after the date ofelection or appointment. The written certification or educational certificate is valid for the uninterrupted tenure ofthe Director. A Director who does not timely file the written certification or educational certificate shall be suspended from the Board until he or she complies with the requirement. The Board may temporarily fill the vacancy during the period of suspension. The Association shall retain each Director's written certification or educational certificate for inspection by the Members for five (5) years after the Director's appointment or election.
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However, the Association's failure to have the written certification or educational certificate on file does not affect the validity ofany Board action.
(iv) Meetings. A meeting ofthe Board occurs whenever a quorum of the Board gathers to conduct Association business. All meetings ofthe Board shall be open to the Members, except for meetings between the Board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege or for the purpose of discussing personnel matters. The right to attend such meetings includes the right to speak at such open meetings with reference to all designated items. The Association may adopt written reasonable Rules and Regulations describing the Members' right to speak; governing the frequency, duration, and other manner of Members' statements; and requiring Members wishing to speak to sign-in. The Board may permit any Directors to participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all Directors participating may simultaneously hear each other during the meeting, such as telephone, real-time video conferencing, or similar real- time electronic or video communication. A Director participating in a meeting by this means is deemed to be present in person at the meeting. Notwithstanding any provision herein to the contrary, the meeting must be held at a location that is accessible to a physically handicapped person ifrequested by a physically handicapped person who has a right to attend the meeting.
(c) Officers.
General. The officers ofthe Association(the "Officers")shall be a President, who shall be selected from the Board, a Vice President, a Treasurer, and Secretary. Prior to Turnover, all Officers shall be appointed/elected by the Declarant and may only be removed and replaced by Declarant pursuant to the terms hereof After Turnover, all Officers shall be elected annually by the Board ofDirectors and each Officer may be removed by vote of the Directors at any meeting with or without cause. After Turnover, no Member or Owner may serve as an Officer ifsuch Member or Owner is delinquent or deficit more than ninety(90)days with regard to payment ofAssessments or any other any Monetary Obligation. Any person may hold two or more offices except that the President shall not also be the Vice President or the Secretary. The Board shall from time to time elect such other Officers and designate their powers and duties as the Board shall find necessary or convenient to manage properly the affairs ofthe Association. Officers shall serve without compensation or fees; provided, however, nothing herein shall be deemed to prevent reimbursement of out-of-pocket expenses approved by the Board and incurred on behalfofthe Association. (ii) President. The "President" shall be the chief executive officer of the Association. He/she shall have all of the powers and duties which are usually vested in the office of a president of a Florida not for profit corporation and a Homeowners' Association. He/she shall serve as chairperson ofall Board and Members' meetings. (iii) Vice President. The "Vice President" shall, in the abg-ence or disability of the President, exercise the powers and perform the duties of the President. He/she shall also generally assist the President and exercise such other powers and perform such other duties as shall be prescribed from time to time by the Board or the President. (iv) Secretary. The "Secretary" shall keep the minutes of all proceedings of the Directors and the Members. He shall attend to the giving and serving of all notices to the Members and Directors and other notices required by law. He/she shall keep the official records ofthe Association, except those of or to be maintained or kept by the Treasurer,
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and shall perform all other duties incident to the office of a secretary of a Florida not for profit corporation,to the office ofa secretary ofa Homeowners'Association,and as may be required by the Directors or the President. From time to time,the duties ofthe Secretary may be fulfilled by a manager or management company employed by the Association. (v) Treasurer. The "Treasurer" shall have custody of all funds, securities, and evidences of indebtedness regarding or concerning the Association. He/she shall keep the books of the Association in accordance with good accounting practices, and shall perform all other duties incident to the office ofa treasurer ofa Florida not for profit corporation and a Homeowners' Association. From time to time,the duties ofthe Treasurer may be fulfilled by a manager or management company employed by the Association. (vi) Removal. Any Officer charged by information or indictment with a felony theft or embezzlement offense involving the Association's funds or property shall immediately be deemed removed from office. As applicable, the Board shall fill the vacancy according to the provision ofthis Declaration until the end ofthe period ofthe suspension or the end ofthe Officer's term of office, whichever occurs first. However, if the charges are resolved without a finding ofguilt or without acceptance ofa plea ofguilty or nolo contendere,the Officer shall be reinstated for any remainder of his or her term of office. A Member who has such criminal charges pending may not be appointed or elected to a position as an Officer.
(d) Member Meetings.
Annual Meetings. The annual meeting of the Members of the Association shall be held at such place, at such time and on such date each year as is from time to time designated by the Board. Failure to hold a timely annual meeting shall in no way affect the terms of Officers or Directors or the validity of actions of the Directors, the Officers, or the Association.
(ii) Special Meetings. Special meetings of the Members may be
called by any one ofthe following persons or groups:
(A) The President;
(B) A majority ofthe Board ofDirectors;
(C) Prior to Turnover, Members representing at least fifty
percent(50%)oftotal voting interests ofthe Association;
(D) After Turnover, Members representing at least twenty
(20%)oftotal voting interests ofthe Association; or
(E) The Declarant,so long as Declarant has the right to elect
a Director pursuantto Section 720.307 ofthe Association Act.
(e) Official Records.
Section 720.303(4) of the Association Act defines the "official records" of the Association. The official records shall be made available to an Owner for inspection within ten (10) business days after receipt by the Board or its designee of a written request. This subsection may be complied with by having a copy ofthe official records available
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