|
TABLE OF CONTENTS
DEVELOPER'S STATEMENT OF MISSION AND GOALS FOR ABACOA
1. GENERAL PROVISIONS
§1.1 [Definitions]
§1.2 [Scope and Effect of Declaration
§1.3 [Community Plan]
(a) Purpose
(b) Implementation of the Community Plan
(c) Amendments To Community Plan
§1.4[Merger
2. ABACOA PROPERTY OWNERS ASSEMBLY, INC.
§2.1 [Establishment of Assembly]
§2.2 [Organizational Structure of Assembly]
(a) Board of Directors.
(b) Community Architect.
(c) Improvement Management Coordination Committee.
§2.3 [Evolution of Assembly]
§2.4 [Voting Rights]
(a) Classes of Membership.
§2.5 [Voting Members]
(a) Class "A" Members
(b) Class "B" Members
(c) Mixed Area Class "B" Members
(d) Annual Election.
(e) Removal.
(f) Voting Districts.
§2.6 [Assembly's Power of Assessment]
(a) Establishment of the Lien for Assessments.
(b) Establishment of General Assessments.
(c) Other Assessments the Assembly May Levy
(d) Titleholders' Initial Contributions.
(e) Lien for Assessments and Enforcement of Financial Obligations.
3. PROTECTIVE COVENANTS
§3.1[Uses of Real Property]
§3.2[Visual Changes to Exteriors of Real Property]
§3.3 [Environmental Protection Measures]
§3.4 [Required Actions Upon Damage to Real Property]
§3.5 [Disposition of Real Property]
§3.6 [Adverse Actions in Property Us
4. NEIGHBORHOOD AND DISTRICT ASSOCIATIONS AND COMMITTEES
§4.1 [Establishment of Neighborhood Associations and District Associations]
§4.2 [Establishment of Neighborhood and District Architectural Committees]
§4.3 [Duties of the Neighborhood and District Architectural Committees]
§4.4 [Rights of Applicants and Others to Appeal Adverse Decisions]
5. EASEMENTS
§5.1 [Validity of Easements]
§5.2 [Easements of Use and Enjoyment]
§5.3 [Easements for Development and Life Support and Other Purposes]
§5.4 [General Easements]
(a) Easement to Develop, Build and Market.
(b) Easement for Public Employees.
(c) Easement for Assembly to Meet its Responsibilities.
(d) Easement for Utility Usage and Surface Water Management System
(e) Conservation Easements.
(f)
Irrigation Quality Water Facilities Easements
(g)
Additional Easements.
6.
COMMUNITY PROPERTY
§6.1
[Title of Community Property]
§6.2
[Control and Maintenance of Community Property and Real Property]
§6.3
[Condemnation or Taking]
7.
INSURANCE
§7.1
[Community Property Insurance]
8.
OPERATION OF DECLARATION
§8.1
[Duration of Declaration]
§8.2
[Amendment]
§8.3
[Enforcement]
§8.4
[Interpretation]
§8.5
[Counterparts]
9.
NPBCID
§9.1
[NPBCID]
§9.2
[Non-ad Valorem Assessments]
§9.3
[Maintenance of NPBCID Improvements]
§9.4
[Primary and Secondary Surface Water Management Systems and Other NPBCID
Facilities]
§9.5
[No Easements over NPBCID land]
§9.6
[NPBCID land not subject to assessments]
§9.7
[Lakes, ponds retention areas and water bodies]
§9.8
[NPBCID Approval Rights to Amendments]
§9.9
[NPBCID Phone Number and Address]
JOINDER AND
CONSENT
APPENDIX ONE - Definitions of
Certain Significant Terms Employed in Abacoa Founding Documents
APPENDIX TWO - Developer's
Rights and Obligations
EXHIBIT "A" - Legal
Description for Abacoa Property
EXHIBIT "B" -
Articles of Incorporation
EXHIBIT "C" - Bylaws
EXHIBIT "D" - SFWMD
Construction Permit
ABACOA
Declaration of Covenants, Conditions and Restrictions
PREAMBLE
WE,
THE DEVELOPER AND ALL TITLEHOLDERS who come to own Real Property subject
to this Declaration within the Community of Abacoa, located in the Town of
Jupiter, Florida, affirm and subscribe to the purposes and provisions of this
Declaration and concur as to the considerable importance and value of the
mission and goals of Abacoa, as set forth in this Preamble, to all Titleholders
of Abacoa.
WE
AFFIRM THAT the central purpose of this Declaration is to beneficially
protect and enhance the general health, safety and welfare of the Titleholders
and residents in Abacoa and to promote opportunities for enrichment of the
quality of life of each Titleholder and Abacoa resident, and further, to make
substantive contributions to the Community of Abacoa in which we live and own
Real Property.
WE FURTHER ENDORSE AND PLEDGE our support for and commitment to the provisions of this Declaration, as amended from time to time, and the following objectives that have materially influenced the Community Plan for Abacoa and the design of the Abacoa Property Owners Assembly, Inc., the internal governing body for Abacoa:
To satisfy the intent of the Community Plan, the MXD Ordinance and the Development Order, all as may be modified from time to time, that, in their conception, were directed towards the goals of protecting and enhancing the value of each Titleholder's financial investment in Real Property in Abacoa.
1. To provide for the human habitation of the lands comprising Abacoa in ways that minimize adverse environmental impacts and that otherwise serve to protect and enhance the wholesomeness of the human and natural ecosystems that operate within Abacoa.
2. To provide for each Titleholder and all residents unique opportunities to enjoy a social environment that enriches personal and family life through community congeniality and the operation of an overall spirit about Abacoa that it is an especially emotionally and spiritually rewarding place to live. In particular, Abacoa has been conceived to uniquely provide opportunities for individual, personal growth to better enable each person to more fully fulfill his and her human potential.
3. To foster a strong sense of inter-connectedness between each Titleholder and Abacoa resident in support of the idea that for a community to be able to give its utmost to its individual constituents, its individual constituents must give their practical utmost to their community.
4. To promote the idea that a community's greatest assets are derived from the essential individuality of each of its citizens, and that so long as a person's expression of his or her individuality does not encroach upon the comfort and rights of others and does not compromise the integrity of his or her community, he or she is fully entitled to express his or her individuality in any fashion.
DEVELOPER'S STATEMENT OF MISSION AND GOALS FOR ABACOA
Abacoa Development Company, a Delaware corporation authorized to do business in the state of Florida ("Developer"), has set forth its plan to develop Abacoa in a manner that balances reasonable business objectives with appropriate social objectives. Specifically, it is Developer's objective, on behalf of its business interests, and on behalf of all Titleholders to plan and develop Abacoa in a manner that significantly contributes to the quality of life for Abacoa's Titleholders and residents.
More specifically, Developer is of the opinion that recent community designs have largely failed to adequately respond to basic human needs to the degree that is practical for a given community, and that this failure, combined with the serious ecological concerns of these times urgently deserves creative remedial attention in which the development community should play a significant role.
It is Developer's desire for Abacoa to emerge and evolve as a community whose operation responds to its citizens' basic needs to the extent practical under the provisions of the Founding Documents, while at the same time minimizing adverse impacts upon the natural environment created by human habitation. Developer believes that these objectives can only be fully realized through the vigorous and creative operation of a cooperative spirit and dedicated enterprise involving the Town of Jupiter, Palm Beach County, Florida, others who become involved in planning and developing properties in Abacoa and the Titleholders and residents of Abacoa. To these ends this Declaration has been written and the Abacoa Property Owners' Assembly, Inc. established.
ARTICLE I
GENERAL PROVISIONS
§1.1 [Definitions]
Incorporated into this Declaration is Community Declaration Appendix One, "Definitions of Certain Significant Terms Employed in Abacoa Founding Documents". These definitions are intended to guide the interpretation and application of the provisions contained in the Governing Documents by which the affairs of the Abacoa Property Owners Assembly, Inc. shall be conducted. Any amendments to these definitions shall be accomplished in accordance with the same provisions for amending the main body of this Declaration.
§1.2 [Scope and Effect of Declaration]
Developer as owner, lessee, or optionee to purchase the Real Property described in Exhibit "A", attached hereto and made a part hereof (the "Abacoa Property"), together with the joinder and consent of the John D. and Catherine T. MacArthur Foundation, an Illinois not for profit corporation, hereby grant and declare that such Real Property may be subjected to this Declaration upon the recordation of one or more Declarations of Annexation in accordance with this Declaration, which Declarations of Annexation will specify the portion of the Abacoa Property then being subjected to this Declaration. Until a Declaration of Annexation for a portion of property is recorded in the Public Records, said portion of property shall not be deemed subjected to this Declaration. Upon a Declaration of Annexation being recorded, such Real Property referred to therein shall thereafter be held, transferred, sold, conveyed and occupied subject to the covenants, easements, restrictions, assessments, charges, fees and liens provided for and set forth in this Declaration, all of which conditions shall run with the land and be binding on any party having any right, title or interest in the Real Property encumbered by this Declaration and subject to the covenants, easements, restrictions, assessments, charges, fees and liens now or hereafter provided for and set forth in the applicable Declarations of Annexations, all of which conditions shall run with the applicable land and be binding on any party having any right, title or interest in the Real Property encumbered by the applicable Declarations of Annexations.
All or any portion of the Abacoa Property, as well as any Real Property which is neighboring or contiguous to the Abacoa Property, may be subjected to this Declaration upon the recordation of one or more Declarations of Annexation. As set forth in Community Declaration Appendix Two attached hereto and incorporated herein by reference, all or any portion of the Abacoa Property may be annexed unilaterally by the Developer, regardless of the ownership of the Real Property comprising the Abacoa Property at the time of such annexation. Developer hereby grants and declares that the Real Property comprising the Abacoa Property is and shall be subject to the Developer's right to unilaterally annex all or any portion of such Real Property for so long as Developer's Rights and Obligations exist. Declarations of Annexation filed by any persons or entities other than Developer, so long as Developer's Rights and Obligations exist, shall require Developer's written joinder. Declarations of Annexation shall be subject to all applicable Public Laws; provided, that Declarations of Annexation shall be subject to the following conditions:
(a) During the period the Developer's Rights and Obligations are in force, any subjection to this Declaration of a particular portion of the Abacoa Property shall become effective only by or with the written consent of the Developer and such portion may be further subdivided only by or with the written consent of the Developer. Subject to the limitations set forth in APPENDIX TWO, during the period the Developer's Rights and Obligations are in force, Developer shall have the right to deannex property previously subjected to the terms of this Declaration. Subsequent to the period the Developer's Rights and Obligations are in force, then the annexation, deannexation or subdivision of portions of the Abacoa Property shall be effected by the Assembly, if and only if, the written approval of the owner of the property to be annexed has been obtained.
(b) During the period the Developer's Rights and Obligations are in force, all or any portion of any Real Property which is neighboring or contiguous to the Abacoa Property may be subjected to this Declaration and further subdivided by or with the written consent of the Developer in accordance with the Community Plan as it may be amended from time to time. Subsequent to the period the Developer's Rights and Obligations are in force, then the annexation of such Real Property which is neighboring or contiguous to the Abacoa Property shall be effected at a duly called meeting at which a Quorum of Voting Members is present with the approval of Voting Members representing at least two-thirds (2/3) of all Titleholder votes entitled to be cast and with the approval of the Board of Directors, if and only if, the written approval of the owner of such property to be annexed has been obtained.
(c) A copy of any Declaration of Annexation shall be filed with the Assembly, and the original thereof shall be recorded in the Public Records.
§1.3 [Community Plan]
(a) Purpose. The Community Plan is a dynamic plan for the development of Abacoa. For the purposes of beneficially securing and enriching the visual character of Abacoa, a set of initial Urban and Architectural Standards has or may be devised to ensure maximum opportunities for individual creativity while at the same time maintaining a consistent thematic harmony throughout Abacoa as it becomes developed. It is anticipated that the Community Plan and the Urban and Architectural Standards will be modified from time to time in order to optimally benefit from individualistic design expressions. In addition to the Urban and Architectural Standards, any Real Property subjected to this Declaration by a Declaration of Annexation may be subject to urban and architectural standards as referenced in their Declaration of Annexation, but such individual Neighborhood or District urban and architectural standards shall not intrude upon or conflict with the thematic harmony of Abacoa as to any property abutting a Through Street, abutting a Greenway or which can be seen from any street or location which the Board of Directors determines, in its sole discretion, to be of special interest to the Abacoa Property.
The Community Plan is also intended to be able to be modified in order to accommodate and respond to changes in technological, economic, environmental, legal, and social conditions that emerge and which may beneficially or adversely affect the development, marketing, or community operations, or which in other ways impede the achievements of the missions and goals of Abacoa.
(b) Implementation of the Community Plan. Because the Community Plan is intended to be dynamic, that is, designed to accommodate changes, it shall not bind Developer to improve or develop any land in accordance with the Community Plan. All development work performed by Developer or Developer's assigns shall be in accordance with the approvals granted by the Town, as such approvals are modified from time to time by the Town.
(c) Amendments To Community Plan. Developer reserves the right to propose and effect amendments to the Community Plan to fulfill the purposes set forth in this Section. As long as the amendments to the Community Plan desired by Developer are in accordance with or do not conflict with the Development Order, the MXD Ordinance, zoning and other governmental regulations required by the Town or any other governmental agency having jurisdiction thereof, as they are amended from time to time, Developer shall have the absolute right to effect such amendments to the Community Plan without the approval of any other person or entity. Proposed amendments to change any land use designation on the Community Plan requiring public hearings by the Town or any other governmental agency shall be presented in accordance with the Public Laws, but unless Public Law specifically requires otherwise, shall not require the approval of Titleholders, the Board of Directors or any other board of directors of any Neighborhood Association or District Association.
§1.4 [Merger]
In
accordance with its Articles of Incorporation, a copy of which is attached
hereto as EXHIBIT "B", the property, rights, and obligations of the
Assembly may be transferred to another surviving or consolidated
organization similar in corporate nature and purposes.
The surviving or consolidated organization may administer the covenants
and restrictions established upon any other properties as one entity.
However, no such merger or consolidation shall affect any revocation,
change, or addition to the provisions established by this Declaration within the
Abacoa Property except as provided in this Declaration.
Such a merger or consolidation shall occur only in accordance with the
provisions of applicable Public Laws.
ARTICLE
II
ABACOA PROPERTY OWNERS ASSEMBLY, INC.
§2.1
[Establishment of Assembly]
Developer
has filed with the Florida Secretary of State, Articles of Incorporation for the
Assembly, the primary governing body responsible for carrying out the intents
and provisions of this Declaration. The
Assembly is charged with the duties and vested with the powers prescribed by law
and those set forth in this Declaration and the other
Governing Documents, as such may be amended from time to time.
§2.2
[Organizational Structure of Assembly]
The
Assembly is comprised of all Titleholders within the Submitted Properties.
The primary purpose of the Assembly is to own, manage, maintain and
operate certain properties for the benefit of Titleholders and to carry out the
responsibilities established for the Assembly in the Governing Documents.
The affairs of the Assembly shall be governed and administered through a
governing structure consisting of a Board of Directors, a President, such other
officers as determined by the Board of Directors, a Community Architect and an
Improvement Management Coordination Committee.
(a)
Board of Directors. The
Board of Directors shall be appointed or elected as more fully set forth in the
Bylaws, a copy of which is attached hereto as EXHIBIT "C".
The duties and powers of the Board of Directors are as set forth in the
Governing Documents, any of which may be amended from time to time in accordance
with their terms.
The
Bylaws shall provide for the manner of selection of each of the members of the
Board of Directors (a "Director").
The Directors shall elect a President and such other officers as the
Directors determine to be appropriate.
(b)
Community Architect. As
more fully set forth in this Declaration and the Bylaws, the Board of Directors
shall appoint a Community Architect, whose principal purpose and function shall
be to review all applications approved by the applicable Neighborhood
Architectural Committee or District Architectural Committee for construction of
Living Units, Commercial Units and accessory buildings and structures, and the
modifications thereto, and issue approvals in connection therewith if said
construction or modification is acceptable.
(c)
Improvement Management Coordination Committee.
As more fully set forth in the Bylaws, the Board of Directors shall
appoint the Improvement Management Coordination Committee.
The principal purposes and functions of the Improvement Management
Coordination Committee, apart from those provided by law, and elsewhere in the
Governing Documents include:
(1)
To coordinate with the NPBCID for the maintenance of the areas
constructed by NPBCID and the areas required to be maintained by NPBCID upon
construction by Developer or its assigns;
(2)
To assist NPBCID in determining the budget and
the assessments each year which NPBCID will assess.
(3)
To propose a management plan and budget for the Community Property to the
Board of Directors for approval.
§2.3
[Evolution of Assembly]
In
order to promote the orderly growth of the governance operations of Abacoa
Property, the Bylaws provide a mechanism for increasing Titleholder
representation on the Board of Directors, as Titleholder membership in the
Assembly grows.
§2.4
[Voting Rights]
(a)
Classes of Membership.
The Assembly shall have four (4) classes of membership, Class
"A", Class "B", Class "C" and Class "D",
as follows:
(1)
Class "A" Members shall be all Titleholders of Living Units
except the Developer. Upon the
expiration of Developers' Rights and Obligations, a Class "A" Member
shall be entitled to one (1) vote for each Living Unit owned by such Titleholder
for the purpose of electing the Voting Member(s) for that Neighborhood. The
Voting Members are entitled to vote as specified in Section
2.5 hereof, unless otherwise specified in this Declaration or the
By-Laws. Each Voting Member shall
represent the Neighborhood or District which elected such Voting Member.
In
any situation where a Titleholder is entitled personally to exercise the vote
for such Titleholder's Unit, and more than one (1) person or entity holds the
interest in such Living Unit owned by such Titleholder, the vote for such Living
Unit shall be exercised as those persons and entities owning the Living Unit
determine among themselves, and advise the Secretary of the Association in
writing prior to casting their vote. In
the absence of such written advice, the Living Unit's vote shall be suspended if
more than one (1) person seeks to exercise it.
(2)
Class "B" Members shall be all Titleholders of Submitted
Property who do not qualify as a Class "A"
Member, Class "C" Member or Class "D" Member.
Upon the expiration of Developer's Rights and Obligations, a Class
"B" Member shall be entitled to one (1) vote for each acre (rounded
up) owned by such Titleholder. The
Voting Members are entitled to vote as specified in Section 2.5, unless otherwise specified in this Declaration or the
By-Laws. Each Voting Member shall
represent the Neighborhood or District which elected such Voting Member.
In
any situation where a Titleholder is entitled personally to exercise the vote
for such Titleholder, and more than one (1) person or entity holds the interest
of the Real Estate owned by such Titleholder, the vote for such Real Estate
shall be exercised as those persons and entities owning the Real Estate
determine among themselves, and advise the Secretary of the Association in
writing prior to casting their vote. In
the absence of such written advice, the Titleholder's vote shall be suspended if
more than one (1) person seeks to exercise it.
(3) Class "C" Member shall be the Developer. The rights of the Class "C" Member are set forth in Appendix Two Developer's Rights and Obligations to the Declaration. Notwithstanding anything to the contrary herein, only the Class "C" Member shall have voting rights during the period Developer's Rights and Obligations are in effect.
(4) Class "D" Member shall be the Golf Course Property Titleholder. Upon the expiration of Developer's Rights and Obligations, the Class "D" Member shall be entitled to appoint four (4) Voting Members. The Voting Members appointed by the Golf Course Property Titleholder shall not be entitled to vote for the election of members to the Board of Directors. The Voting Members appointed by the Golf Course Property Titleholder shall be allowed to vote on all other matters requiring a vote by Voting Members.
(5) Except as otherwise specified in the Bylaws or this Declaration, the vote for each Living Unit owned by a Class "A" Member shall be exercised by the Voting Member(s) representing the Neighborhood or District of which the Living Unit is a part. The Voting Member may cast all, but not less than all, such votes as the Voting Member, in his or her discretion, deems appropriate, including casting such votes differently in accordance with the differing views of the Titleholders.
(6) Except as otherwise specified in the Bylaws or this Declaration, the vote for each acre owned by a Class "B" Member shall be exercised by the Voting Member(s) representing the District of which such acre is a part. The Voting Member may cast all, but not less than all, such votes as the Voting Member, in his or her discretion, deems appropriate, including casting such votes differently in accordance with the differing views of the Titleholders.
(7) Notwithstanding anything to the contrary herein, for any District consisting of Living Units and Commercial and Workplace Properties, the members from that District shall be considered Class "B" Members and the governing documents for that District Association shall determine how the Voting Members shall be elected from said District. In the event the governing documents do not so specify the election process for said District's Voting Members, then the Developer shall make such determination.
§2.5 [Voting Members]
(a) Class "A" Members. The Class "A" Members within each Neighborhood or District may elect one Voting Member for each 50 Units within the Neighborhood or District (rounded up to the nearest 50). The governing documents for each Neighborhood or District shall provide the procedure for nominating and electing the Voting Member(s) from such Neighborhood or District. On all Assembly matters requiring a Class "A" Membership vote, each such Voting Member shall be entitled to cast that number of votes (rounded up if necessary) determined by dividing the total number of Class "A" votes attributable to Living Units in the Neighborhood or District that elected such Voting Member, as applicable, by the number of Voting Members elected from such Neighborhood or District, except as otherwise specified in this Declaration or the By-Laws. The Class
"A" Members may also elect one or more alternate Voting Members to be
responsible for casting such votes in the absence of a Voting Member.
(b)
Class "B" Members.
The Class "B" Members within each District may elect one Voting
Member for each ten acres within the District (rounded up to the nearest 10
acres). Each District's governing
documents shall provide the procedure for nominating and electing the Voting
Member(s) from such District. On
all Assembly matters requiring a Class "B" Membership vote, each such
Voting Member shall be entitled to cast that number of votes (rounded up if
necessary) determined by dividing the total number of Class "B" votes
attributable to the acreage in the Neighborhood or District that elected such
Voting Member, as applicable, by the number of Voting Members elected from such
Neighborhood or District, except as otherwise specified in this Declaration or
the By-Laws. The Class
"B" Members may also elect one or more alternate Voting Members to be
responsible for casting such votes in the absence of a Voting Member.
(c)
Mixed Area Class "B" Members. Notwithstanding anything to the contrary herein,
for any District consisting of both Living Units and Commercial and Workplace
Properties, the Developer shall determine the number of Voting Members to be
elected from said District.
(d)
Annual Election. Subsequent
to the expiration of the Developer's Rights and Obligations, Voting Members
shall be elected annually. The
candidate for each position who receives the greatest number of votes shall be
elected to serve a term of one year or until a successor has been elected,
whichever is later.
(e)
Removal. Any
Voting Member may be removed, with or without cause, upon the vote or written
petition of a majority of the votes of the Titleholders entitled to elect such
Voting Member. In the case of the Class "D" Voting Member, the Class
"D" Member may remove any Class "D" Voting Member at any
time.
(f)
Voting Districts. The
Developer, during the period the Developers' Rights and Obligations are in
effect may establish voting groups which take effect after the Developers'
Rights and Obligations expire and provide for representation by voting group on
the Board of Directors so long as the representation on the Board of Directors
between the (1) Board of Directors' members elected by the Voting Members
elected by the Class "A" Members, and (2) the Board of Directors'
members elected by the Class "B" Members, remain equal.
Subsequent to the expiration of Developer's Rights and Obligations, the
Assembly, through actions of the Directors, may establish voting groups
which provide for representation by voting group on the Board of
Directors so long as the representation on the Board of Directors between the
Board of Directors' members elected by the Voting "A" Members and the Board of Directors' members elected by the Class
"B" Members remain equal, unless otherwise agreed to by the Voting
Members elected by the Class "A" Members and the Voting Members
elected by the Class "B" Members as more particularly set forth in the
Bylaws.
§2.6
[Assembly's Power of Assessment]
(a)
Establishment of the Lien for Assessments. Notwithstanding
anything to the contrary herein, no assessment shall begin to accrue on the
Abacoa Property or on any other portion of Real Property until such Abacoa
Property or Real Property has been subjected to this Declaration by virtue of a
Declaration of Annexation recorded in the Public Records.
The Assembly, through actions of the Directors, shall be empowered to
levy assessments upon Titleholders for funding the costs, including reserves, of
all lawful activities undertaken by the Assembly and that are in support of and
consistent with the purposes and provisions of the Governing Documents.
Each Neighborhood Association and District Association shall have the
obligation to collect all assessments due the Association, including but not
limited to the General Assessments and Local Assessments, for the Lots such
Neighborhood Association or District Association administers or controls and pay
to the Assembly all such assessments when such assessments are due; provided,
however, that the Assembly may, in its sole discretion, elect to
collect such assessments from the Neighborhood Associations and District
Associations or directly from the Titleholders.
In the event the Assembly chooses to collect such assessments from the
Neighborhood Associations and District Associations, the obligation of each
Neighborhood Association and District Association to pay to the Assembly any
assessment levied upon Lots within the jurisdiction of said Neighborhood
Association and District Association, together with interest, costs, late fees,
reasonable attorneys' fees and all other reasonable charges imposed by the
Assembly in accordance with the Governing Documents shall be the personal
obligation of each such Neighborhood Association and District Association, as
applicable. In addition, the
obligation of each Titleholder to pay to the Assembly any assessment levied upon
his Lot (collected through said Lot's Neighborhood Association or District
Association, or directly from said Titleholder), together with interest, costs,
late fees, reasonable attorneys' fees and all other reasonable charges imposed
by the Assembly in accordance with the Governing Documents shall be the personal
obligation of each Titleholder and shall be a continuing lien against the Lot of
each such Titleholder until satisfied, with such lien having priority over all
other liens except those statutorily provided as being superior.
Such lien shall be established and enforced by the Assembly in accordance
with Public Laws. Each Titleholder, by virtue of the deed or other instrument of
conveyance of a portion of the Submitted Property, whether or not it is so
expressed in such deed or instrument, shall be obligated and agrees to pay all
assessments, whatever their nature, including, but not limited to any then past
due assessments in accordance with the provisions of this Declaration and
consents and agrees to the lien rights hereunder against such Submitted
Property. In addition to the assessments and charges set forth in §2.6(c)
and §2.6(d)', there shall be the
following General Assessments:
General
Assessments. The Golf Course Property Owner shall be responsible for
paying 2.1% of the total yearly annual general assessment budget. The
Neighborhoods, Residential Districts and Commercial and Workplace Properties
shall pay the remaining 97.9% of the annual general assessments budget.
The initial annual general assessments for these areas shall be based on
the assumption that all of the Abacoa Property will ultimately be Submitted
Property and that the Neighborhoods, Residential Districts and Commercial and
Workplace Properties will be developed in accordance with Abacoa Plat No. 1 and
Master Plan Map H. Other than for
the Golf Course Property, the calculation for determining a particular
category's percentage share of the annual general assessment budget shall be as
follows: The then Assumed
Acreage of the category being determined divided by the sum of the
Assumed Acreage of the Residential Neighborhoods, Residential Districts
and Commercial and Workplace Properties, multiplied by 97.9%.
By
way of example, the percentage of the initial annual general assessment budget
for which the Residential Neighborhoods are responsible is based on Abacoa Plat
No. 1 and Master Plan Map H and is calculated on the following formula:
820.70
acres (the assumed Neighborhood acreage) divided by 1,086.59 (the total acres of
assumed Residential Neighborhoods, Residential Districts and Commercial and
Workplace Properties) multiplied by 97.9% = 73.944%.
By
way of example, the percentage of the initial annual general assessment budget
for which the Residential Districts are responsible is based on Abacoa Plat No.
1 and Master Plan Map H and is calculated on the following formula:
51.32
acres (the assumed Residential District acreage) divided by 1,086.59 (the total
acres of assumed Residential Neighborhoods, Residential Districts and Commercial
and Workplace Properties) multiplied by 97.9% = 4.624%.
By
way of example, the percentage of the initial annual general assessment budget
for which the Commercial and Workplace Properties are responsible is based on
Abacoa Plat No. 1 and Master Plan Map H and is calculated on the following
formula:
214.57
acres (the assumed Commercial and Workplace Properties acreage) divided by
1,086.59 (the total acres of assumed Residential Neighborhoods, Residential
Districts and Commercial and Workplace Properties) multiplied by 97.9% = 19.332%.
By
way of example, the percentage of the annual general assessment budget for which
the Golf Course Property Titleholder is responsible is 2.1%.
Therefore, Residential
Neighborhoods shall initially be responsible for 73.944% of the annual general
assessments budget; Residential Districts shall initially be responsible for
4.624% of the annual general assessments budget;
Commercial and Workplace Properties shall initially be responsible for
19.332% of the annual general assessments budget and the Golf Course Property
shall be responsible for 2.1% of the annual general assessments budget.
On
October 1st of each year, the acreage attributable to the Residential
Neighborhoods, the Residential Districts and the Commercial and Workplace
Properties shall be updated based upon the actual acreage attributed to
each category as a result of any re-plat of Abacoa Plat No. 1, or any additional
plat or replat within the Abacoa Property.
The Developer shall have the absolute right, in Developer's sole
discretion, to adjust the foregoing formula by substituting a different assumed
number of acres in the appropriate category of Residential Neighborhoods,
Residential Districts and Commercial and Workplace Properties for the acreage
not yet submitted as Submitted Property. A
new allocation of the 97.9% portion of the annual general assessments budget
between the Residential Neighborhoods, Residential Districts and Commercial and
Workplace Properties shall then be calculated based on the new assumed acreages.
Once
the assessment obligation of the Residential Neighborhoods, Residential
Districts, and the Commercial and Workplace Properties is determined,
then, the assessments to be paid by each Titleholder (then or thereafter coming
into existence prior to the next recalculation) shall be calculated as follows:
As to
Residential Neighborhoods, the assessments to be paid by each Titleholder within
the Residential Neighborhoods shall be calculated based upon the number of
proposed or actual Living Units within the Residential Neighborhoods owned by
such Titleholder, divided by the sum of the actual number of proposed or
existing Living Units, as shown on plats, replats and condominium governing
documents, plus 90% of the number of assumed units allocated to the remaining
Residential Neighborhoods as set forth in the Master Plan Map H or determined by
Developer, as said numbers are modified from time to time to reflect the actual
number of proposed or existing Living Units contained within a Residential
Neighborhood as shown on plats, replats or condominium governing documents,
or as determined by Developer, in Developer's sole discretion.
Notwithstanding the foregoing, until October 1, 1997, the initial general
assessment allocated shall be based on 90% of the units as shown on Master Plan
H and shall not be based on any actual filed plats, replats and governing
condominium documents.
As to
Residential Districts, the assessments to be paid by each Titleholder within the
Residential District shall be calculated based upon the number of proposed or
actual Living Units owned by such Titleholder, divided by the sum of the actual
number of proposed or existing Living Units, as shown on plats, replats and
condominium governing documents, plus 90% of the number of assumed units
allocated to the remaining Residential Districts as set forth in the Master Plan
Map H or determined by Developer, as said numbers are modified from time to time
to reflect the actual number of proposed or existing Living Units contained
within a Residential District as shown on plats, replats or condominium
governing documents or as
determined by the Developer, in Developer's sole discretion.
Notwithstanding the foregoing, until October 1, 1997, the initial general
assessment allocated shall be based on 90% of the units as shown on Master Plan
H and shall not be based on any actual filed plats, replats and condominium
governing documents.
As to
Commercial and Workplace Properties the assessments to be paid by each
Titleholder within the Commercial and Workplace Properties shall be calculated
based upon the number of acres owned by such Titleholder divided by the sum of
the acres allocated to the Commercial and Workplace Properties as set forth in
the Master Plan Map H as said numbers are modified from time to time to reflect
the actual number of acres contained within a Commercial and Workplace District
as shown on plats or replats or as determined by the Developer, in Developer's
sole discretion.
By
way of example, Commercial and Workplace Properties are initially assumed to be
comprised of 214.57 acres based upon Abacoa Plat No. 1 and Master Plan H.
Therefore, each acre of Titleholders would be responsible for 1/214.57th of the
total Commercial and Workplace Properties general assessment.
Notwithstanding anything to the contrary herein, where an acre is divided
into more than one Lot with more than one Titleholder, the allocation between
the Titleholders within a District containing Commercial and Workplace
Properties of the 1/214.57th per acre share shall be determined by the
individual District's governing documents.
In
addition, on October 1st of each year, the assessment obligation of each
Titleholder shall be adjusted. The
adjustment for the Residential Neighborhoods shall be determined based upon the actual
number of proposed or existing Living Units, as shown on plats, replats and
condominium governing documents, together with 90% of the number of assumed
units in the remaining Residential Neighborhoods as set forth in the Master Plan
Map H. The adjustment for the
Residential Districts shall be determined based upon the actual number of
proposed or existing Living Units, as shown on plats, replats and condominium
governing documents together with 90% of the remaining number of assumed in the
remaining Residential Districts as set forth in the Master Plan Map H.
The adjustment for the Commercial and Workplace Properties shall be
determined based upon 100% of the actual platted or replatted acreage within the
Commercial and Workplace Properties together with 100% of the remaining number
of the estimated acres as set forth in Master Plan Map H. By way of example,
Master Plan Map H estimates 727 Lots within the Residential Districts. If, as a
result of a re-plat of a Residential District, there are 100 actual platted Lots
(with 100 Living Units assumed to be built on such platted Lots) within that
particular Residential District, then the assessment attributable to each
proposed or existing Living Unit within the Residential Districts shall be
1/664.3 (627 unplatted Lots x .90 = 564.3 plus 100 actual platted Lots = 664.3)
of the total Residential Districts' assessments.
The Developer during the period Developer's Rights and Obligations are in
effect, in making the annual October 1 adjustments, has the absolute discretion
to determine the number of assumed units and acres to be used in calculating the
annual adjustments. In the event a
determination is made by the Developer never to submit to the Declaration
certain portions of the Abacoa Property, then such portions shall be excluded
from the calculations of the annual adjustments.
(b)
Establishment of General Assessments.
The General Assessments imposed upon Titleholders shall be derived from
the budget adopted yearly by the
Board of Directors in accordance with the Bylaws.
For the duration of Developer's Rights and Obligations, Developer shall
not be liable for assessments (including General Assessments and Local
Assessments), but shall be liable for payments as provided for in Appendix
Two.
(c)
Other Assessments the Assembly May Levy.
The Assembly may levy assessments against Lots as may be provided for in
Declarations of Annexation or as may be determined by a vote of two-thirds (2/3)
of the Board of Directors for the purpose of defraying the costs of services and
benefits that uniquely appertain to such Lots.
Such assessments shall be known as "Local Assessments" and such
areas as contain Lots subject to Local Assessments shall be known as "Local
Assessment Districts".
The
Assembly may, if approved by the Board, also levy assessments against Lots in
connection with the cost of irrigation quality water facilities to individual
Lots based on actual or projected costs of maintenance of such facilities.
The
Assembly may, if approved by the Board, also levy assessments upon some number
of neighboring (which may or may
not be contiguous) Lots upon the petition of Titleholders representing eighty
percent (80%) of all Titleholder votes entitled to be cast with respect to such
neighboring Lots for the purpose of defraying the costs of supplemental
services those Titleholders desire.
The
Assembly may levy assessments against the Lot of a Titleholder, who has been
found through due process as provided for in the Governing Documents, to have
committed an action, or failed to take an action, which is contrary to the
Governing Documents and which has resulted in monetary cost to the Assembly,
including but not limited to as a result of any hazardous materials being
located or discharged on, over or under any Abacoa Property.
Such cost determination may include both direct as well as such
consequential costs as legal fees and costs, increased insurance rates, and
additional administrative costs. Titleholders
shall also have ultimate responsibility for damages sustained by the Assembly as
a result of actions or omissions by Titleholder's guests or lessees.
(d)
Titleholders' Initial Contributions.
Each Titleholder, other than the Developer or a Participating Builder,
upon closing on the title to a Lot improved by a Living Unit shall pay to the
Assembly a sum equal to two (2) months of all assessments applicable to
such Lot (including General Assessments and Local Assessments, if applicable) in
effect at the time of taking title.
Each Titleholder, other than the Developer or a Participating Builder,
upon the closing on the title to a Lot improved by a Commercial Unit shall pay
to the Assembly a sum equal to two (2) months of all assessments
applicable to such Lot (including General Assessments and Local Assessments, if
applicable) in effect at the time of taking title.
Such contributions are not refundable, are not a prepayment of
assessments and are payable by all transferees upon the resale of Lots.
(e)
Lien for Assessments and Enforcement of Financial Obligations.
All assessments and money claims for collection from Titleholders levied
by the Assembly, including initial contributions described in
§2.6(d)', shall constitute a continuing lien as provided for in §2.6(a). Procedures
for levying and collecting assessments shall be as determined by the Board of
Directors. Non-residency of a
Titleholder or non-use of services, shall not relieve any Titleholder of
assessment obligations. However,
the Board of Directors may waive assessments of Lots operated for public benefit
by a governmental agency or a non-profit organization whose activities are
deemed by the Board of Directors as being in the general public interest.
A
Titleholder's personal obligation for outstanding assessments and money claims
that have arisen during his ownership shall survive conveyance of his Lot to
another Titleholder. The lien for
such assessments and money claims shall also survive transference of title such
that in the event the obligation is not promptly satisfied by the former
Titleholder, the obligation for prompt payment shall become that of the
successor Titleholder, unless the successor Titleholder is an Institutional
Lender who assumed title through foreclosure or a deed in lieu of foreclosure.
An Institutional Lender who assumed title through foreclosure, or a deed
in lieu of foreclosure, except as provided below, shall only be liable for those
assessments accruing after the Institutional Lender obtained title except in the
case where a claim of lien for assessments was recorded prior to the recordation
of the mortgage which was foreclosed or deed in lieu of foreclosure was taken or
in the case where Florida Statutes specifically enumerate circumstances where
prior assessments may be collected from the lenders.
Any unpaid share of assessments which are not permitted under this
Declaration or Public Laws to be collected from an Institutional Lender shall be
collectible as General Assessments from all Titleholders, including the acquirer
of title to the foreclosed Lot or the grantee of the deed in lieu of
foreclosure.
ARTICLE
III
PROTECTIVE COVENANTS
§3.1
[Uses of Real Property]
Uses
of Real Property and all activities in the Submitted Property shall be subject
to all relevant Public Laws and the Governing Documents, as amended from time to
time. Declarations of Annexation may provide for additional
protective covenants encumbering the Real Estate that is being annexed.
§3.2
[Visual Changes to Exteriors of Real Property]
Except
as to Community Property, changes in the visual appearance of the exteriors of
structures and the Lots on which they are situated and any common areas owned
by, leased by or in the control of a Neighborhood Association or District
Association may not be made until approval has been secured in writing from the
Neighborhood Architectural Committee or District Architectural Committee, as
applicable, and the Community Architect. Changes
in landscape elements that involve additions, removal, or changes in the
appearance of trees, shrubs, fences, or hard surfaces and materials shall also
require written approval of the Neighborhood Architectural Committee or District
Architectural Committee, as applicable, and the Community Architect or the
Neighborhood Architectural Committee or District Architectural Committee, as
applicable, and the Board of Directors, as more particularly set forth in Section
4.2 above. To expedite
processing of approvals for the convenience of Titleholders, the Community
Architect and the Neighborhood Architectural Committees and District
Architectural Committees may, in lieu of individual notices of approval in
writing, issue notice of the acceptability of a kind of proposed change that
does not require formal application of the Neighborhood Architectural Committee
or District Architectural Committee, as applicable, or Community Architect.
Such notices shall be based upon design standards approved by the Board
of Directors.
As to
Community Property, changes in the visual appearance of the exteriors of
structures located on the Community Property and changes in landscape elements
that involve additions, removal, or changes in the appearance of trees, shrubs,
fences, or hard surfaces and materials located on the Community Property may not
be made until approval has been secured in writing from the Community Architect.
The
Community Architect may exercise a stricter set of standards than the
Neighborhood Architectural Committees and District Architectural Committees to
ensure that the thematic harmony of Abacoa Property is upheld for any property
abutting a Through Street, abutting a Greenway or which can be seen from any
street or location which the Board of Directors determines, in its sole
discretion, to be of special interest to the Abacoa Property.
§3.3
[Environmental Protection Measures]
In
order to minimize adverse effects of human habitation in the natural environment
of Abacoa Property, the Assembly may adopt Community Codes governing the use of
fertilizers, pesticides and herbicides on the Submitted Properties.
It may also adopt other Community Codes designed to protect the
environment, including but not limited to, the Greenways and Community Property,
and it may further adopt reasonable punitive measures, including reasonable
fines for willful degradation of the natural environment.
No Exotics or other invasive and nuisance trees, plants or grasses shall
be permitted to be brought to or planted within the Abacoa Property.
The Abacoa Property is located within a wellfield protection area, and
every Titleholder by virtue of being a titleholder within Abacoa Property must
comply with the Public Laws regarding wellfield protection.
§3.4
[Required Actions Upon Damage to Real Property]
In the
event of damage to a Living Unit, Commercial Unit or other structure, the
Titleholder of such Living Unit, Commercial Unit or other structure shall be
obligated to repair or reconstruct the Living Unit, Commercial Unit or other
structure in accordance with its appearance prior to such damage unless the
Neighborhood Architectural Committee or District Architectural Committee, as
applicable, and the Community Architect have agreed to a modified construction
plan. Such repair or reconstruction
shall be accomplished within one
hundred eighty (180) days of the damage unless the Neighborhood Architectural
Committee or District Architectural Committee, as applicable, and the Community
Architect grant a waiver based upon a finding of hardship.
Should a Titleholder not conform to the provisions of this §3.4, the Board of Directors is entitled to accomplish necessary
repairs or reconstruction according to its best judgment, and levy an assessment
upon the Titleholder for the costs involved pursuant to §2.6
of this Declaration.
§3.5
[Disposition of Real Property]
Resales,
Leasing and Temporary Lodging. Upon
any resale, the new Titleholder shall notify the Assembly on a form approved by
the Assembly of such resale and
shall submit to the Assembly any transfer fee established by the Board of
Directors within fifteen (15) days of the new Titleholder's taking
title. All Titleholders must notify
the Assembly of all leases or rentals of any of the Submitted Property which
they own and submit to the Assembly any transfer fee established by the Board of
Directors within fifteen (15) days of the earlier of the entering into any such
arrangement and the possession by the lessee of the applicable Submitted
Property. All Neighborhood Associations and District Associations, as
applicable, shall periodically, as required by the Board, notify the Assembly,
to the best of their knowledge, of any changes in Titleholders or tenants within
the boundaries of their Neighborhood or District, as applicable. Required
approvals, if any, in connection with resales, leasing and temporary lodging of
any Lot, Living Unit or accessory unit shall be governed by the individual
Declarations of Annexation and Public Law. Additionally, as to those Living Units where the affordable
housing requirements of the MXD Ordinance apply, the Board of Directors shall
have the right to approve such
purchase prices, but any such approval shall not be deemed confirmation by the
Board of Directors that such purchase prices meet the affordable housing
requirements.
§3.6
[Adverse Actions in Property Use]
No
Titleholder (or their invitees or lessees) shall take any action or fail to take
an action that actually or tends to jeopardize property values or that otherwise
might be detrimental to the Submitted Properties or to the well-being of
Titleholders, or the Assembly. Declarations
of Annexation may further define adverse actions, and the Board of Directors
shall establish due process procedures for dealing with alleged adverse actions.
As to any Real Property under the jurisdiction of a Neighborhood Board of
Directors or District Board of Directors, the Board of Directors shall not take
any action under this Section until notice is given to the Neighborhood Board of
Directors or District Board of Directors, as applicable, requesting such
applicable board of directors take action on the matter, except that in the
event of an occurrence affecting the proper operation of the South Florida Water
Management District or NPBCID surface water management system or the Town's
drainage system, or other emergency, no advance notice need be given the
Neighborhood Board of Directors or District Board of Directors by the Board of
Directors prior to the Board of Directors taking action to require the
applicable Titleholder to correct the problem or the Assembly correcting the
problem directly and assessing the applicable Titleholders directly.
Failure of the applicable Neighborhood Board of Directors or District
Board of Directors to take action within 30 days of receipt of said notice from
the Board of Directors shall result in the Board of Directors having the right
to take action on the matter and directly assess the applicable Titleholder,
Neighborhood Association or District Association, as applicable, for all fees
and costs arising therefrom. Categories of adverse actions shall include failure
to comply with any of the provisions of this section, failure to maintain one's
Lot in accordance with Community Codes, failure to comply with the drainage
requirements of the South Florida Water Management District or NPBCID surface
water management plan, as amended from time to time, failure to comply with the
Town's drainage system plan, as amended from time to time, failure to maintain
any Community Property located within a Neighborhood or District, if required by
the Assembly, failure to maintain any Real Property owned, maintained, managed
or otherwise in the custody of the Neighborhood Association or District
Association in accordance with the standards required by the Assembly and/or any
governmental agency having jurisdiction thereof, and actions that compromise the
safety or comfort of Titleholders or their property through noxious practices or
activities. Noxious activities
include those that tend to offend people acoustically, olfactory or visually
according to standards provided for in the Governing Documents and according to
common traditions as to acceptable social norms.
The foregoing is not intended to detract from the essential individuality
of each person, so long as a person's expression of individuality is in
compliance with the Governing Documents and does not encroach upon the comfort
and rights of others and does not compromise the integrity of the Community.
Notwithstanding anything to the contrary herein, any uses permitted in
the Development Order or MXD Ordinance shall automatically be deemed nonadverse
and not noxious and shall be permitted under this Section.
ARTICLE
IV
NEIGHBORHOOD AND DISTRICT ASSOCIATIONS AND COMMITTEES
§4.1
[Establishment of Neighborhood Associations and District Associations]
Except
for the Golf Course Property, each Neighborhood or District, as applicable,
shall establish a governing not for profit corporation ("Neighborhood
Association" or "District Association", as applicable), to govern
and administer the property contained within such Neighborhood or District.
Developer must consent in writing to all Declarations of Annexation and
Neighborhood or District declarations, which consents shall be recorded
therewith, and must approve Articles of Incorporation and Bylaws of said
associations prior to their being formed during the period Developer's Rights
and Obligations are in force, and thereafter said approval shall be required
from the Board of Directors. Said
associations shall be governed by a president and a board of directors elected
as set forth in their respective bylaws.
The board of directors of said associations shall appoint such officers
as required by their respective bylaws and architectural committee to assist the
board in carrying out said board's duties. Notwithstanding the preceding
sentence, one member of each of the Neighborhood Architectural Committees and
District Architectural Committees, as applicable, shall be appointed by the
Board of Directors. A stricter set of standards may be established by the Board
of Directors to protect the thematic harmony of Abacoa as to any property
abutting a Through Street, abutting a Greenway or which can be seen from any
street or location which the Board of Directors determines, in its sole
discretion, to be of special interest to the Abacoa Property.
Even
though the Golf Course Property is not required to establish a Neighborhood
Association or District Association, the Golf Course Property shall still be
subject to all other provisions and
requirements set forth in the Governing Documents, including but not limited to,
the requirement that all improvements on the Golf Course Property must be
approved by the Community Architect subject to appeal to the Board of Directors,
and that the Golf Course Property is subject to assessment and lien rights of
the Assembly. Additionally, the
Golf Course Property shall not be modified so as to impede or increase the flow
of stormwater without the approval of the Assembly and any applicable
governmental agencies. The Golf
Course Property must comply with all required permit conditions of any
governmental body having jurisdiction thereof.
§4.2
[Establishment of Neighborhood and District Architectural Committees]
Except
for the Golf Course Property, each Neighborhood or District, as applicable,
shall establish a regulatory body ("Neighborhood Architectural
Committee" or "District Architectural Committee", as applicable),
to aid the Community Architect in maintaining the visual integrity of the
Community and to consider and make decisions on all applications by Titleholders
for making design or visual changes to exteriors of the Lots in that
Neighborhood or District and upon the improvements located thereon. Except for the Developer and Participating Builders,
Titleholders desiring to make visual changes to the exteriors of their Lots or
improvements thereon shall make an application for such proposed changes to the
applicable Neighborhood Architectural Committee or District Architectural
Committee. Such applications,
if approved by the Neighborhood Architectural Committee or District
Architectural Committee, must then be reviewed by the Community Architect.
If the Community Architect approves said application then the application
is deemed approved. If the
Community Architect does not approve said application, the applicant Titleholder
may during the 30 day period following said disapproval, appeal the Community
Architect's decision to the Board of Directors. A schedule of reasonable fees
may be established by the Board of Directors for defraying costs of
administering applications.
§4.3
[Duties of the Neighborhood and District Architectural Committees]
The
Neighborhood Architectural Committees and the District Architectural Committees
shall serve to interpret and make decisions on proposed design and visual
changes, based upon design standards established by the Neighborhood Board of
Directors or District Board of Directors, as applicable, and in accordance with
procedures established in the Governing Documents.
During the period Developer's Right and Obligations are in force, the
Neighborhood Architectural Committees and the District Architectural Committees
may not establish or amend design standards unless and until Developer approves
same, and thereafter such design standards must be approved by the Board of
Directors. The Neighborhood Architectural Committees and the District
Architectural Committees shall also provide interpretive advice to the Community
Architect and Board of Directors, when requested, to aid in findings on alleged
violations of design standards. As
more fully provided in the Bylaws, all initial improvements by the Developer or
Participating Builders shall be exclusively and only subject to the approval and
scrutiny of the Community Architect who shall be appointed by Developer so long
as its Developer's Rights and Obligations are in force.
Unless otherwise provided by the Board of Directors with respect to
specific design and visual changes, all other proposed design and visual changes
shall be approved or disapproved by the applicable Neighborhood Architectural
Committee or the District Architectural Committee subject to approval by the
Community Architect and appeal to the Board of Directors by the applicant, if
the Community Architect does not agree with the decision of the applicable
Neighborhood Architectural Committee or District Architectural Committee.
§4.4
[Rights of Applicants and Others to Appeal Adverse Decisions]
Any
Titleholder that has applied for a design or visual change does not have the
right to appeal a decision of the Neighborhood Architectural Committee or
District Architectural Committee, as applicable.
Any Titleholder that has applied for a design or visual change which has
been approved by the Neighborhood Architectural Committee or District
Architectural Committee, as applicable, but was disapproved by
Community Architect may appeal the Community Architect's decision.
Such appeal shall be to the Board of Directors in accordance with
procedures established for such appeals in the Governing Documents.
Non-applicant Titleholders shall not be entitled to appeal a decision of
the Community Architect or the Neighborhood Architectural Committees or District
Architectural Committees, as applicable, unless specifically authorized by the
Board of Directors pursuant to procedures established for such appeals in the
Governing Documents. A decision of
disapproval by a Neighborhood Architectural Committees or District Architectural
Committees, as applicable, shall be considered final. A unanimous decision of
the Community Architect and the Neighborhood Architectural Committees or
District Architectural Committees, as applicable, shall be considered final.
A decision of the Board of Directors on those matters which are appealed
to the Board of Directors as set forth herein shall be considered final. The
procedure for applying for a change or improvement to a Lot and appealing a
decision shall be as set forth by the Board of Directors.
The aforesaid applicable approvals must be obtained by a Titleholder
before such Titleholder applies for approval of any signage.
ARTICLE
V
EASEMENTS
§5.1
[Validity of Easements]
The
provisions of this section may not be amended or modified in any fashion without
the concurrence of Developer so long as Developer retains Developer's Rights and
Obligations as set forth in Appendix Two
to this Declaration. All easements
provided for in this Article shall run with the land and bind all Titleholders.
Easements running in favor of Developer, Participating Builders and the
Assembly and all other easements may be transferred to respective comparable
entities or persons or Developer may assign any rights Developer has in any such
easements to any party or entity Developer desires, in Developer's sole
discretion.
§5.2
[Easements of Use and Enjoyment]
Subject
to the Board of Directors' right to restrict the usage thereof and establish
policies in connection with the use thereof subject to NPBCID's right to
install, repair, use or replace improvements over property which NPBCID has a
fee simple or easement interest therein, subject to NPBCID's written approval or
permit for the use over property which NPBCID has a fee simple or easement
interest therein, and subject to reasonable rules and charges, all Titleholders
are hereby granted a non-exclusive easement of use and enjoyment of Community
Property, except that Real Property owned by the Assembly, may, by virtue of
provisions in a Declaration of Annexation or pursuant to a duly adopted
resolution adopted by the Board of Directors, be reserved for the exclusive or
primary use and enjoyment of some but not all of such persons.
Titleholders leasing Lots, Commercial Units or Living Units to others may
delegate their rights of enjoyment to Community Property to their lessees.
Rights of use and enjoyment of Community Property extend automatically to
permanent members of households of Titleholders and lessees, subject to the
Board of Directors' right to restrict the usage thereof and establish policies
in connection with the use thereof and subject to, where applicable, NPBCID's
right to install, repair or replace improvements over property which NPBCID has
a fee simple or easement interest therein, and subject to NPBCID's written
approval or permit for such use over property which NPBCID has a fee simple or
easement interest therein.
§5.3
[Easements for Development and Life Support and Other Purposes]
Developer
shall have the right to grant easements over all of the Abacoa Property (and any
neighboring or contiguous property) for drainage purposes, environmental
protection zones, services by the Town or other public authority, utilities
(including telephone and cable television), special landscape zones, and for any
other purpose reasonably related to the development of the Submitted Properties
and neighboring properties, provided, where applicable, such easements shall be
subject to NPBCID's right to install, repair or replace improvements over
property which NPBCID has a fee simple or easement interest therein and further
provided that NPBCID must approve any such easements over any property which
NPBCID has a fee simple or exclusive easement interest therein.
Developer's
rights to grant such easements shall continue for the duration of Developer's
Rights and Obligations period unless prior to such time a site development plan
has been approved by the Town and a plat thereof has been recorded in the public
records. Any property for which a site development plan has been
approved and a plat recorded in the Public Records shall not be subject to the
Developer's reserved right to unilaterally grant easements.
Developer or Participating Builder, with Developer's written approval,
shall have the right to enter the Community
Property, on which easements have been established under this section, for any
lawful purpose relating to such easements.
That right expressly includes the right to cut or remove any plantings or
to regrade the land, provided that the entity disturbing the affected property
shall restore the property to its original condition as near as possible.
Easements established under this section may not be established in ways
that unreasonably interfere with the use and enjoyment of a Titleholder's Lot
for an extended period of time.
§5.4
[General Easements]
The following easements and
rights are hereby reserved and established, the exercise of which shall be
subject to all relevant Public Laws.
(a)
Easement to Develop, Build and Market.
For the duration of Developer's Rights and Obligations period, Developer
and Participating Builders, with Developer's written approval, shall have the
right to conduct development, construction, marketing and customer service
operations in a customary and reasonable fashion.
This includes the right of the Developer to permit on the Abacoa
Property, including Lots and Community Propert |