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DECLARATION OF COVENANTS,
CONDITIONS, AND RESTRICTIONS
FOR
TAMPA PALMS
OWNERS ASSOCIATION, INC.
This Declaration of Covenants,
Conditions, and Restrictions is made this 27th day of February,
1986, by Tampa Palms Development Corporation, a Florida
corporation, (hereinafter referred to as "Declarant"):
WITNESSETH
WHEREAS, Declarant is the owner of
the real property described in Exhibit " A " attached hereto and
incorporated herein by reference. Declarant intends by this
Declaration to impose upon the Properties (as defined herein)
mutually beneficial restrictions under a general plan of
improvement for the benefit of all owners of residential
property within the Properties made subject to this Declaration
and amendments thereto by the recording of this Declaration.
Declarant desires to provide a flexible and reasonable procedure
for the overall development of the Properties and the
interrelationship of the component residential and commercial
developments, and to establish a method for the administration, maintenance, preservation, use
and enjoyment of such Properties as are now or may hereafter be
subjected to this Declaration;
NOW,
THEREFORE, Declarant hereby declares that all of the Properties
described in Exhibit " A " and any additional property as may by
Subsequent Amendment (as defined herein) be added to and
subjected to this Declaration shall be held, sold, and conveyed
subject to the following easements, restrictions, covenants, and
conditions which are for the purpose of protecting the value and
desirability of and which shall run with the real property
subjected to this Declaration and which shall be binding on all
parties having any right, title, or interest in the described
Properties or any part thereof, their heirs, successors,
successors-in-title, and assigns, and shall inure to the benefit
of each owner thereof. This Declaration does not and is not
intended to create a condominium within the meaning of Chapter
718, Florida Statutes.
ARTICLE I
DEFINITIONS
SECTION 1. " Area of Common
Responsibility" shall
mean and refer to the Common Area, together with those areas, if
any, which by contract with any residential association, with
any commercial establishment or association, any golf or country
club, or with any apartment building owner or cooperative within
the Properties become the responsibility of the Association. In
addition, the office of any property manager employed by or
contracting with the Association and located on the Properties
shall be part of the Area of Common Responsibility.
SECTION 2. " Association"
shall mean and refer to Tampa Palms Owners Association, Inc., a
Florida corporation not-for-profit, and its successors and
assigns. The "Board of Directors" or "Board" shall
be the elected body having its normal meaning under Florida law.
SECTION 3. "Commercial! Unit"
shall mean a portion
of the Properties intended for any type of independent ownership
for use and occupancy as a commercial, office, or business
establishment as may be developed, used, and defined as herein
provided or as provided in Subsequent Amendments covering all or
a part of the Properties; provided, further, the term shall
include all portions of the lot owned including any structure
thereon. For the purposes of this Declaration, a Commercial
Unit shall come into existence when substantially complete or
upon the issuance of a certificate of occupancy by the
appropriate agency of the City of Tampa, Florida, or other local
government entity.
SECTION 4. “Common Area”
shall mean all real and personal property which the Association
now or hereafter owns or otherwise holds for the common use and
enjoyment of the Owners. The initial Common Area shall be
conveyed to the Association prior to the conveyance of a
subdivision interest to any Residential Unit purchaser.
SECTION5. “Common
Expenses” shall mean and include the actual and estimated
expenses of operating the Association, both for General and
Subdistrict purposes, including any reasonable reserve,
all as may be found to be
necessary and appropriate by the Board pursuant to this
Declaration, the By- Laws, and the Articles of Incorporation of
the Association.
SECI'ION 6. "Community-Wide
Standard" shall mean
the standard of conduct, maintenance, or
other activity generally
prevailing throughout the Properties. Such standard may be more
specifically determined and set forth by the New Construction
Committee.
SECI'ION 7. "Electoral
District" shall mean
a geographical area or areas comprised of one or more housing
types or commercial areas and representing a political unit for
the purpose of electing directors. Districts shall not be
required to be equal in population. The Declarant may at any
time and from time to time until the termination of Class "B"
membership as provided in Section 2(b) of Article III of this
Declaration establish and alter or reestablish the boundaries of
Electoral Districts by the recordation of an exhibit to this
Declaration setting forth the metes and bounds or other legal
description of the land contained within each Electoral
District. After termination of the Class "B" membership, the
Board of Directors may prepare and record such exhibit. Such
recordation shall not constitute an amendment to this
Declaration and shall not require the formality thereof. An
Electoral District may be composed of non-contiguous property.
SECI'ION 8. "General
Assessment" shall
mean and refer to assessments levied to fund expenses applicable
to all Members of the Association.
SECI'ION 9. "Land Segment
Owner" shall mean and
refer to one or more persons or entities who
hold record title to any "Land
Segment," which shall mean and refer to any property for
development
as Commercial or Residential
Units. The term Land Segment Owner shall include any lot pool
builder
but shall under no circumstances
include the Declarant. Land Segment Owners shall have no vote
and shall not be subject to assessments, but shall otherwise be
subject to this Declaration.
SECI'ION 10. "Master Land Use
Plan" shall mean and
refer to the plan for the development of the Properties most
recently approved by the City of Tampa, Florida, or Hillsborough
County, Florida, as it may be amended from time to time.
SECI'ION 11. "Member"
shall mean and refer to a person or entity entitled to
membership in the Association, as provided herein.
SECI'ION 12. "Mortgage"
shall include a deed of trust, as well as a mortgage.
SECI'ION 13. "Mortgagee"
shall include a beneficiary or holder of a deed of trust, as
well as a mortgagee .
SECI'ION 14. "Mortgagor"
shall include the trustor of a deed of trust, as well as a
mortgagor. SECI'ION 15. "Owner" shall mean and refer to
one or more persons or entities who hold the record
title to any Commercial or
Residential Unit which is part of the Properties, but excluding
in all cases any party holding an interest merely as security
for the performance of an obligation. If a Commercial or
Residential Unit is sold under a recorded contract of sale, the
purchaser (rather than the fee owner) will
be considered the Owner.
SECI'ION 16. "Person"
means a natural person, a corporation, a partnership, trustee,
or other legal entity.
SECI'ION 17. "Properties"
shall mean and refer to the real property described in Exhibit "
A " attached hereto and shall further refer to such additional
property as may hereafter be annexed by Subsequent Amendment to
this Declaration or which is owned by the Association.
SECI'ION 18. "Residential
Unit" shall mean a
portion of the Properties intended for use and occupancy as a
residence for single family and shall, unless otherwise
specified, include within its meaning (by way of illustration,
but not limitation) condominium units, apartment units, patio or
zero lot line homes, and single family houses on separately
platted lots, as may be developed, used, and defined as herein
provided or as provided in Subsequent Amendments covering all or
a part of the Properties; provided, further, the term shall also
include all portions of the lot owned including any structure
thereon. In the case of a structure which contains multiple
apartment units, each apartment unit shall be deemed to be a
separate residential unit.
For the purposes of this
Declaration, a Residential Unit shall come into existence when
substantially complete or upon the issuance of a certificate of
occupancy by the appropriate agency of the City of Tampa,
Florida, or other local governmental entity.
SECI'ION 19. "Special
Assessment" shall
mean and refer to assessments levied in accordance with Article
X, Section 3 of this Declaration.
SECI'ION 20. "Subdistrict"
shall mean and refer to separately designated, developed
residential or commercial areas comprised of various types of
housing or commercial activity which initially or by amendment
are made subject to this Declaration; for example, and by way of
illustration and not limitation, condominiums, fee simple
town homes, single family detached houses; commercial, office
and retail establishments, and rental apartments. In the absence
of specific designation of separate Subdistrict status, all
Properties made subject to this Declaration shall be considered
a part of the same Subdistrict; provided, however, the Declarant
may designate in any Subsequent Amendment adding property to the
terms and conditions of this
Declaration that such properties shall constitute a separate
Subdistrict or Subdistricts; and provided, further, by a
two-thirds (2!3) vote, the Board of Directors may also designate
Subdistrict status to any area so requesting.
SECTlON 21. "Subdistrict
Assessments" shall
mean assessments for common expenses provided for herein or by
any Subsequent Amendment which shall be used for the purposes of
promoting the recreation, health, safety, welfare, common
benefit, and enjoyment of the Owners and occupants of the
Commercial and Residential Units against which the specific
Subdistrict Assessment is levied and of maintaining the
properties within a given Subdistrict, all as may be
specifically authorized from time to
time by the Board of Directors
and as more particularly authorized below.
The Subdistrict Assessment shall
be levied equally against Owners of Commercial or Residential
Units
in a Subdistrict for such
purposes as are authorized by this Declaration or by the Board
of Directors from
time to time, provided that in
the event of assessments for exterior maintenance of structures,
or
insurance on structures, or
replacement reserves which pertain to particular structures
(pursuant to an amendment to this Declaration), such assessments
(that are for the use and benefit of particular
lots/units) shall be levied on a
pro rata basis among benefited Owners.
SECTlON 22. "Subsequent
Amendment" shall mean
an amendment to this Declaration which adds additional property
to that covered by this Declaration. Such Subsequent Amendment
may, but is not
required to, impose, expressly
or by reference, additional restrictions and obligations on the
land
submitted by that Amendment to
the provisions of this Declaration.
SECTlON 23. "Unit"
shall be an inclusive term referring to both Commercial Units
and Residential
Units.
SECTlON 24. "Voting Member"
shall mean and refer to the representative selected by the
Members
in each Subdistrict or
residential association, who shall be responsible for election
of directors, amending
this Declaration or the By-Laws,
and all other matters provided for in this Declaration. The
Voting
Member from each Subdistrict or
residential association, if any, shall be the senior elected
officer (e.g., Subdistrict Committee chairman or
association president) from that component; the alternate Voting
Member shall be the next most
senior officer. Each Voting Member shall be entitled to cast as
many votes
as equals the number of Units he
or she represents.
ARTICLE II
PROPERTY RIGHTS
Every Owner shall have a right
and easement of enjoyment in and to the Common Area subject to
this Declaration and to any restrictions or limitations
contained in any deed or amendment to this Declaration conveying
to the Association or subjecting to this Declaration such
property .Any Owner may delegate
his or her right of enjoyment to
the members of his or her family, tenants, and social invitees
subject to reasonable regulation by the Board and in accordance
with procedures it may adopt.
The Board of Directors by
resolution may extend permission to recognized community
leagues, or
religious or school groups to
use certain of the recreation facilities within the Properties
subject to such
terms and conditions as the
Board may impose.
Access to the golf course and to
the club facilities or to a part thereof is strictly subject to
the rules and procedures of the golf club. No Owner or occupant
gains any right to enter or to use those facilities by
virtue of ownership or occupancy
of a Commercial or Residential Unit.
ARTICLE III
MEMBERSHIP AND VOTING RIGHTS
SECTlON 1. Membership.
Every Owner, as defined in Section 15 of Article I, shall be
deemed to have
a membership in the Association.
No Owner, whether one or more persons, shall have more than one
(1) membership per Unit owned. In the event the Owner of a
Unit is more than one person or entity, votes and rights of use
and enjoyment shall be as provided herein. The rights and
privileges of membership, including the right to vote, may be
exercised by a Member or the Member's spouse. The membership
rights of a Commercial Unit shall be exercised by the Owner or,
in the case of a corporate owner, by the individual designated
in a written instrument provided to the Secretary.
SECTlON 2. Voting.
The Association shall have two (2) classes of membership, Class
" A " and Class
"B", as follows:
(a) Class “A”. Class "
A " Members shall be all Owners with the exception of the Class
"B"
Members, if any.
Class " A " Members owning
Residential Units shall be entitled to one (1) vote for each
Residential
Unit in which they hold the
interest required for membership by Section 1 hereof; there
shall be only
one (1) vote per unit; Class " A
" Members owning Commercial Units shall be entitled on all
issues to
vote in accordance with the
formula set out in Exhibit C".
When more than one person or
entity holds such interest in any Unit, the vote for such Unit
shall be exercised as those persons or entities themselves
determine and advise the Secretary of the Association prior to
any meeting. In the absence of such advice, the Unit's vote
shall be suspended in the event more than one person or entity
seeks to exercise it.
Any Owner of Residential Units
which are leased may, in the lease or other written instrument,
assign the voting right appurtenant to that Residential Unit to
the lessee, provided that a copy of such instrument is furnished
to the Secretary prior to any meeting.
(b) Class “B”. The Class
"B" Member shall be the Declarant and any successor of Declarant
who takes title for the purpose of development and sale, and who
is designated as such in a recorded instrument executed by
Declarant. The Class "B" membership shall terminate and become
converted to Class “A” membership within one hundred twenty
(120) days of the happening of the earlier of the following:
(i) when the total outstanding
Class " A " votes equal or exceed seventy-five (75%) percent of
the Units permitted by the Master land Use Plan for the property
described on Exhibit "A" and "B";
(ii) January 1, 2015; or
(iii) when, in its discretion,
the Declarant so determines.
From and after the happening of
these events, whichever occurs earlier, the Class "B" Member
shall be deemed to be a Class "A" Member entitled to one (1)
vote for each Residential Unit in which it holds the interest
required for membership under Section 1 hereof, and for each
Commercial Unit, the number of votes determined in accordance
with the formula set forth in Exhibit "C". At such time, the
Declarant shall call a meeting, as provided in the By-laws of
the Association for special meetings, to advise the membership
of the termination of Class "B" status.
ARTICLE IV
MAINTENANCE
SECTION 1. Association's
Responsibility. The
Association shall maintain and keep in good repair the Area of
Common Responsibility, such maintenance to be funded as
hereinafter provided. This maintenance shall include, but not be
limited to, maintenance, repair, and replacement subject to any
insurance then in effect, of all landscaping and other flora,
structures, and improvements situated upon such areas.
The Association may, in the
discretion of its Board, assume the maintenance responsibilities
set out in this Declaration or in any Subsequent Amendment of
declaration subsequently recorded which creates any residential
association or Subdistrict or upon any land Segment upon all or
any portion of the Properties. In such event, all costs of such
maintenance shall be assessed only against those Members
residing in the association to which the services are provided.
This assumption of responsibility may take place either by
contract or because, in the opinion of the Board, the level and
quality of service then being provided is not consistent with
the Community-Wide Standard of the Properties. The provision of
services in accordance with this Section shall not constitute
discrimination within a class.
SECTION 2. Owners
Responsibility. In
accordance with this Declaration and any additional declaration
and Subsequent Amendments to this Declaration which may be filed
on portions of the Properties, all maintenance of a Unit and all
structures, parking areas, and other improvements within a Unit
shall be the sole responsibility of the Owner thereof who shall
perform such maintenance in a manner consistent with the
Community-Wide Standard of the Properties and the applicable
covenants; provided, further, if this work is not properly
performed by the Owner, the Association may perform it and
assess the Owner; provided, however, except when entry is
required due to an emergency situation, the Association shall
afford the Owner reasonable notice and an opportunity to cure
the problem prior to entry.
ARTICLE V
INSURANCE AND CASUALTY LOSSES
SECTION 1. Insurance.
The Association's Board of Directors, or its duly authorized
agent, shall have the authority to and shall obtain blanket
all-risk insurance, if reasonably available for all insurable
improvements on the Common Area and may, but shall not be
obligated to, by written agreement with any Subdistrict
Committee (as defined in the By-laws), assume the responsibility
for providing the same insurance coverage on the Properties
contained within the Subdistrict. If blanket all-risk coverage
is not reasonably available, then at a minimum an insurance
policy providing fire and extended coverage shall be obtained.
This insurance shall be in an amount sufficient to cover one
hundred (100%) percent of the replacement cost of any repair or
reconstruction in the event of damage or destruction from any
insured hazard.
In addition to casualty
insurance on the Common Area, the Association may, but shall not
under any circumstances be obligated to, obtain and continue in
effect adequate blanket all-risk casualty insurance in such form
as the Board of Directors deems appropriate for one hundred
(100% ) percent of the replacement cost of all structures
comprising Residential Units. If the Association elects not to
obtain such insurance, then an individual Subdistrict Committee
may obtain such insurance as a common expense of the Subdistrict
to be paid by Subdistrict Assessments, as defined in Article X
hereof. In the event such insurance is obtained by either the
Association or a Subdistrict Committee, the provisions of this
Article shall apply to policy provisions, loss adjustment, and
all other subjects to which this Article applies with regard to
insurance on the Common Area. All such insurance shall be for
the full replacement cost. All such policies shall provide for a
certificate of insurance for each Member insured to be furnished
to the Association or Subdistrict Committee, as applicable.
The Board shall also obtain a
public liability policy covering the Common Area, the
Association and its Members for all damage or injury caused by
the negligence of the Association or any of its Members or
agents. The public liability policy shall have at least a One
Million ($1,000,000.00) Dollar single person limit as respects
bodily injury and property damage, a Three Million
($3,000,000.00) Dollar limit per occurrence, if reasonably
available, and a Five Hundred Thousand ($500,000.00) Dollar
minimum property damage limit .
Unless higher insurance
requirements are contained in any covenants or restrictions for
any residential association or Subdistrict, the following shall
apply: insurance obtained on the Properties contained within any
Subdistrict or residential association, whether obtained by such
Subdistrict, the residential association or the Association,
shall meet the requirements of this Section 1. Costs of such
coverage shall be a charge to the Members residing within such
residential association or Subdistrict.
Premiums for all insurance on
the Common Area shall be common expenses of the Association;
premiums for insurance provided to other associations or
Subdistricts shall be charged to those associations or
Subdistricts. The policy may contain a reasonable deductible,
and the amount thereof shall be added to the face amount of the
policy in determining whether the insurance at least equals the
full replacement cost. The deductible shall be paid by the party
who would be responsible for the repair in the absence of
insurance and in the event of multiple parties shall be
allocated in relation to the amount each party's loss bears to
the total. Deductibles on damage caused by errant golf balls
shall be allocated either to the Owner or golfer as provided by
law, but under no circumstances shall the Association be
responsible.
Cost of insurance coverage
obtained by the Association for the Common Area shall be
included in the General Assessment, as defined in Article I,
Section 8 and as more particularly described in Article X,
Section 1.
All such insurance coverage
obtained by the Board of Directors shall be written in the name
of the Association as Trustee for the respective benefitted
parties, as further identified in (b) below. Such insurance
shall be governed by the provisions hereinafter set forth:
(a) All policies shall be
written with a company licensed to do business in Florida which
holds a Best's rating of A or better and is assigned a financial
size category of XI or larger as established by A. M. Best
Company, Inc., if reasonably available, or, if not available,
the most nearly equivalent rating.
(b ) All policies on the Common
Area shall be for the benefit of the Owners and their Mortgagees
as their interests may appear; all policies secured at the
request of a Subdistrict Committee shall be for the benefit of
the Owners and their Mortgagees of Units within the Subdistrict.
(c)
Exclusive authority to adjust
losses under policies in force on the Properties obtained by the
Association shall be vested in the Association's Board of
Directors; provided, however, no mortgagee having an interest in
such losses may be prohibited from participating in the
settlement negotiations, if any, related thereto.
(d) In no event shall the
insurance coverage obtained and maintained by the Association's
Board of Directors hereunder be brought into contribution with
insurance purchased by individual Owners, occupants, or their
mortgagees.
(e) All casualty insurance
policies shall have an inflation guard endorsement, if
reasonably available, and an agreed amount endorsement with an
annual review by one or more qualified persons, at least one of
whom must be in the real estate industry and familiar with
construction in the Hillsborough County, Florida, area.
(f) The Association' s Board of
Directors shall be required to make every reasonable effort to
secure insurance policies that will provide for the following:
(i) a waiver of subrogation by
the insurer as to any claims against the Association's Board of
Directors, its manager, the Owners, and their respective
tenants, servants, agents, and guests;
(ii) a waiver by the insurer of
its rights to repair, and reconstruct, instead of paying cash;
(iii) that no policy may be
cancelled, invalidated or suspended on account of anyone or more
individual Owners;
(iv) that no policy may be
cancelled, invalidated, or suspended on account of the conduct
of any Director, officer, or employee of the Association or its
duly authorized manager without prior demand in writing
delivered to the Association to cure the defect and the
allowance of a reasonable time thereafter within which the
defect may be cured by the Association, its manager, any Owner,
or mortgagee;
(v) that any "other insurance"
clause in any policy exclude individual Owners' policies from
consideration; and
(vi) that no policy may be
cancelled or substantially modified without at least ten (10)
days' prior written notice to the Association.
In addition to the other
insurance required by this Section, the Board shall obtain, as a
common expense, worker's compensation insurance, if and to the
extent necessary, and a fidelity bond or bonds on directors,
officers, employees, and other persons handling or responsible
for the Association's
funds. The amount of fidelity
coverage shall be determined in the directors' best business
judgment
but may not be less than three
(3) months' assessments, plus reserves on hand. Bonds shall
contain a waiver of all defenses based upon the exclusion of
persons serving without compensation and may not be cancelled or
substantially modified without at least ten (10) days' prior
written notice to the Association.
SECTION 2. Individual
Insurance. By virtue
of taking title to a Unit subject to the terms of this
Declaration, each Owner covenants and agrees with all other
Owners and with the Association that each Owner shall carry
blanket all-risk casualty insurance on his Unit(s) and
structures constructed thereon as provided for in Section 1 of
this Article V, unless the Subdistrict Committee of the
Subdistrict in which the Unit is located or the residential
association or the Association carries such insurance (which
they are not obligated to do). Each Owner further covenants and
agrees that in the event of a partial loss or damage and
destruction resulting in less than total destruction of
structures comprising his Unit, the Owner shall proceed promptly
to repair or to reconstruct the damaged structure in a manner
consistent with the original construction. In the event that the
structure is totally destroyed and the Owner determines not to
rebuild or to reconstruct, the Owner shall clear the Unit of all
debris and return it to substantially the natural state in which
it existed prior to the beginning of construction.
A residential association or
Subdistrict Committee may impose more stringent requirements
regarding the standards for rebuilding or reconstructing
structures on the Unit and the standard for returning the Unit
to its natural state in the event the Owner decides not to
rebuild or reconstruct.
SECTION 3. Disbursement of
Proceeds. Proceeds of
insurance policies shall be disbursed as follows:
(a) If the damage or destruction
for which the proceeds are paid is to be repaired or
reconstructed,
the proceeds, or such portion
thereof as may be required for such purpose, shall be disbursed
in payment of such repairs or reconstruction as hereinafter
provided. Any proceeds remaining after defraying such costs of
repairs or reconstruction to the Common Area or, in the event no
repair or reconstruction is made, after making such settlement
as is necessary and appropriate with the affected Owner or
Owners and their mortgagee(s) as their interests may appear,
shall be retained by and for the benefit of the Association and
placed in a capital improvements account. This is a covenant for
the benefit of any mortgagee of a Unit and may be enforced by
such mortgagee.
(b) If it is determined, as
provided for in Section 4 of this Article, that the damage or
destruction to the Common Area for which the proceeds are paid
shall not be repaired or reconstructed, such proceeds shall be
disbursed in the manner provided for excess proceeds in Section
3(a) of this Article V.
SECTION 4. Damage and
Destruction.
(a) Immediately after the damage
or destruction by fire or other casualty to all or any part of
the Properties covered by insurance written in the name of the
Association, the Board of Directors, or its duly authorized
agent, shall proceed with the filing and adjustment of all
claims arising under such insurance and obtain reliable and
detailed estimates of the cost of repair or reconstruction of
the damaged or destroyed Properties. Repair or reconstruction,
as used in this paragraph, means repairing or restoring the
Properties to substantially the same condition in which they
existed prior to the fire or other casualty .
(b ) Any damage or destruction
to the Common Area or to the common property of any Subdistrict
or residential association shall be repaired or reconstructed
unless the Voting Members representing at least seventy-five
(75%) percent of the total vote of the Association, if Common
Area, or the association or Subdistrict whose common property is
damaged, shall decide within sixty (60) days after the
casualty not to repair or
reconstruct. If for any reason either the amount of the
insurance proceeds to
be paid as a result of such
damage or destruction, or reliable and detailed estimates of the
cost of repair or reconstruction, or both, are not made
available to the Association within said period, then the
period shall be extended until
such information shall be made available; provided, however,
such extension shall not exceed sixty (60) days. No mortgagee
shall have the right to participate in the determination of
whether the Common Area damage or destruction shall be repaired
or reconstructed.
(c) In the event that it should
be determined in the manner described above that the damage or
destruction shall not be
repaired or reconstructed and no alternative improvements are
authorized,
then and in that event the
affected portion of the Properties shall be restored to their
natural state and maintained by the Association, Subdistrict or
residential association, as applicable in a neat and attractive
condition.
SECTION 5.
Repair and Reconstruction. If the damage or destruction
for which the insurance
proceeds are paid is to be
repaired or reconstructed, and such proceeds are not sufficient
to defray the cost thereof, the Board of Directors shall,
without the necessity of a vote of the Members, levy a special
assessment against all Owners in proportion to the number of
Units owned, provided, if the damage or destruction involves
only a Commercial Unit or Units, only Owners of Commercial Units
shall be subject to such assessment and if the damage or
destruction involves only a Residential Unit or Units only
Owners of Residential Units shall be subject to such assessment.
Additional assessments may be made in like manner at any time
during or following the completion of any repair or
reconstruction.
ARTICLE VI
NO PARTITION
Except as is permitted in the
Declaration or amendments thereto, there shall be no physical
partition of the Common Area or any part thereof, nor shall any
person acquiring any interest in the Properties or
any part thereof seek any such
judicial partition until the happening of the conditions set
forth in Section 4 of Article V in the case of damage or
destruction, or unless the Properties have been removed from the
provisions of this Declaration. This Article shall not be
construed to prohibit the Board of Directors from acquiring and
disposing of tangible personal property nor from acquiring title
to real property which may or may not be subject to this
Declaration.
ARTICLE VII
CONDEMNATION
Whenever all or any part of the
Common Area shall be taken (or conveyed in lieu of and under
threat of condemnation by the Board acting on the written
direction of all Owners) by any authority having the power of
condemnation or eminent domain, each Owner shall be entitled to
notice thereof. The award made for such taking shall be payable
to the Association as Trustee for all Owners to be disbursed as
follows:
If the taking involves a portion
of the Common Area on which improvements have been constructed,
then, unless within sixty (60) days after such taking the
Declarant, so long as the Declarant owns any property described
in Exhibits " A " or "B" of this Declaration, and Voting Members
representing at least seventy-five (75%) percent of the total
vote of the Association shall otherwise agree, the Association
shall restore or replace such improvements so taken on the
remaining land included in the Common Area to the extent lands
are available therefore, in accordance with plans approved by
the Board of Directors of the Association. If such improvements
are to be repaired or restored, the above provisions in Article
V hereof regarding the disbursement of funds in respect to
casualty damage or destruction which is to be repaired shall
apply. If the taking does not involve any improvements on the
Common Area, or if there
is a decision made not to repair
or restore, or if there are net funds remaining after any such
restoration or replacement is completed, then such award or net
funds shall be disbursed to the Association and used for such
purposes as the Board of Directors of the Association shall
determine.
ARTICLE VIII
ANNEXATION OF ADDITIONAL
PROPERTY
SECTION 1. Annexation Without
Approval of Class II A II Membership.
As the owner thereof, or if not the owner, with the consent of
the owner thereof, Declarant shall have the unilateral right,
privilege, and option, from time to time at any time until the
year 2015, to subject to the provisions of this Declaration and
the jurisdiction of the Association all or any portion of the
real property described in Exhibit "B", attached hereto and by
reference made a part hereof, whether in fee simple or leasehold
by filing in the Public Records of Hillsborough County, Florida,
an amendment annexing such Properties. Such Subsequent Amendment
to this Declaration shall not require the vote of Members. Any
such annexation shall be effective upon the filing for record of
such Subsequent Amendment unless otherwise provided therein.
Declarant shall have the unilateral right to transfer to any
other person the said right, privilege, and option to annex
additional property which is herein reserved to Declarant,
provided that such transferee or assignee shall be the developer
of at least a portion of said real property described in said
Exhibit "B" attached hereto and that such transfer is
memorialized in a written, recorded instrument.
Prior to any annexation under
this Section 1, plans for the development of the additional
Property must be submitted to the Veterans Administration and
the Veterans Administration must determine that the plans are in
accordance with the overall general plan heretofore approved by
the Veterans Administration and so advise Declarant.
SECTION 2. Annexation With
Approval of Class II A II Membership.
Subject to the consent of the owner thereof, upon the
affirmative vote of Voting Members or Alternates representing a
majority of the Class " A " votes of the Association other than
Declarant at a meeting duly called for such purpose and of the
Declarant, so long as Declarant owns property subject to this
Declaration or which may become subject in accordance with
Section I of this Article, the Association may annex real
property other than that shown on Exhibit "B", and following the
expiration of the right in Section I, the Properties shown on
Exhibit "B", to the provisions of this Declaration and the
jurisdiction of the Association by filing of record in the
Public Records of Hillsborough County, Florida, a Subsequent
Amendment in respect to the Properties being annexed. Any such
Subsequent Amendment shall be signed by the President and the
Secretary of the Association, and the owner of the properties
being annexed, and any such annexation shall be effective upon
filing unless otherwise provided therein. The relevant
provisions of the By-laws dealing with regular or special
meetings, as the case may be, shall apply to determine the time
required for and the proper form of notice of any meeting called
for the purpose of considering annexation of property pursuant
to this Section 2 and to ascertain the presence of a quorum at
such meeting.
SECTION 3. Acquisition of
Additional Common Area.
Declarant may convey to the Association additional real estate,
improved or unimproved, located within the properties described
in Exhibit "B" which upon conveyance or dedication to the
Association shall be accepted by the Association and thereafter
shall be maintained by the Association at its expense for the
benefit of all its Members.
SECTION 4. Amendment.
This Article shall not be amended without the written consent of
Declarant, so long as the Declarant owns any property described
in Exhibits "A" or "B".
ARTICLE IX
RIGHTS AND OBLIGATIONS OF THE
ASSOCIATION
SECTION 1. Common Area and
Rights-of-Way. The
Association, subject to the rights of the Owners set forth in
this Declaration, shall be responsible for the exclusive
management and control of the Common Area and all improvements
thereon (including, without limitation, furnishings and
equipment related thereto and common landscaped areas), and
shall keep it in good, clean, attractive, and sanitary
condition, order, and repair, pursuant to the terms and
conditions hereof.
SECTION 2. Personal Property
and Real Property for Common Use.
The Association, through action of its Board of Directors, may
acquire, hold, and dispose of tangible and intangible personal
property and real property .The Board, acting on behalf of the
Association, will accept any real or personal property,
leasehold, or other property interests within the Properties
conveyed to it by the Declarant.
SECTION 3. Rules and
Regulations. The
Association, through its Board of Directors, may make and
enforce reasonable rules and regulations governing the use of
the Properties, which rules and regulations shall be consistent
with the rights and duties established by this Declaration.
Sanctions may include reasonable monetary fines and suspension
of the right to vote and the right to use the recreational
facilities. The Board shall, in addition, have the power to seek
relief in any court for violations or to abate nuisances.
Imposition of sanctions shall be as provided in the By-laws of
the Association. In addition,
the Association, through the
Board, may, by contract or other agreement, enforce county
ordinances or permit the City of Tampa to enforce ordinances on
the Properties for the benefit of the Association and
its Members.
SECTION 4. Implied Rights.
The Association may exercise any other right or privilege given
to it expressly by this Declaration or the By-laws, and every
other right or privilege reasonably to be implied from the
existence of any right or privilege given to it herein or
reasonably necessary to effectuate any such right or privilege.
ARTICLE X
ASSESSMENTS
SECTION 1. Creation of
Assessments. There
are hereby created assessments for Common Expenses as may be
from time to time specifically authorized by the Board of
Directors to be commenced at the time and in the manner set
forth in this Article X, Section 6. Assessments shall be
allocated as follows: (a) equally for Residential Units owned by
Owners; and (b) in accordance with Exhibit "C" for Commercial
Units; provided, however, anything herein to the contrary
notwithstanding Declarant may annually elect in writing either
of the following alternatives as a method of paying its
assessments:
(I) pay the assessments set
forth in this Section for an Owner of Residential Units, or
(2) pay to the Association in
the form of a subsidy the difference between the amount received
in assessments from all Owners other than Declarant and the
amount of the actual expenditures required to operate the
Association for the year. Payment under either of the foregoing
options shall constitute full payment of all assessments owed
under this Declaration.
Subdistrict Assessments shall be
levied against Residential or Commercial Units in particular
portions of the Properties or in residential associations for
whose benefit Common Expenses are incurred which
benefit less than the
Association as a whole. Each Owner, by acceptance of his or her
deed or recorded contract of sale, is deemed to covenant and
agree to pay these assessments. All such assessments, together
with interest at the rate equal to two (2) percentage points
above the prime interest rate charged by the Chemical Bank of
New York as computed for the date the delinquency first occurs,
costs, and reasonable attorney's fees, shall be a charge on the
land and shall be a continuing lien upon the Unit against which
each assessment is made.
Each such assessment, together
with interest, costs, and reasonable attorney's fees, shall also
be the personal obligation of the person who was the Owner of
such Unit at the time the assessment arose, and his or her
grantee shall be jointly and severally liable for such portion
thereof as may be due and payable at the time of conveyance to
the extent expressly assumed, except no first mortgagee who
obtains title to
a Unit pursuant to the remedies
provided in the mortgage shall be liable for unpaid assessments
which accrued prior to such acquisition of title.
Assessments shall be paid in
such manner and on such dates as may be fixed by the Board of
Directors which may include, without limitation, acceleration of
the annual assessment for delinquents; unless the Board
otherwise provides, the assessments shall be paid in monthly
installments.
The Association is specifically
authorized to enter into subsidy contracts with Declarant or
other entities for the payment of some portion of the common
expenses; provided, however, the Veterans Administration shall
be advised of and approve any form of subsidy contract entered
into between the Declarant and the Association.
SECTION 2. Computation of
Assessment. It shall
be the duty of the Board, at least sixty (60) days before the
beginning of the fiscal year and thirty (30) days prior to the
meeting at which the budget shall be presented to the Voting
Members, to prepare a budget covering the estimated costs of
operating the Association during the coming year. The budget
shall include a capital contribution establishing a reserve fund
in accordance with a capital budget separately prepared and
shall separately list general and Subdistrict expenses, if any.
The Board shall cause a copy of the budget, and the amount of
the assessments to be levied against each Unit for the following
year to be delivered to each Owner at least fifteen (15) days
prior to the meeting. The budget and the assessments shall
become effective unless disapproved at the meeting by a vote of
Voting Members or their alternates representing at least a
majority of the total Class "A" vote in the Association, and
the Class "B" Member.
Notwithstanding the foregoing,
however, in the event the proposed budget is disapproved or the
Board fails for any reason so to
determine the budget for the succeeding year, then and until
such time as a budget shall have been determined as provided
herein, the budget in effect for the then current year shall
continue for the succeeding year.
The Board may not, without the
vote or written consent of Voting Members or their alternates
representing a majority of the Class "A" votes of the
Association, which shall include a majority of the votes of the
Association residing in Members other than Declarant, impose a
General Assessment per Unit which exceeds the General Assessment
per Unit for the immediately preceding fiscal year by more than
ten (10%) percent or the amount which the Consumer Price Index
for the metropolitan Tampa, Florida, area has increased over the
previous fiscal year, whichever is greater; provided, however,
in determining whether any increase is within the limitation
imposed by this paragraph, the amount of any increase due to
increased cost of utilities or insurance, damage by acts of God,
and increases in the reserve fund shall not be included.
SECTION 3. Special
Assessments. In
addition to the assessments authorized in Section 1 of this
Article, the Association may levy a Special Assessment or
Special Assessments in any year applicable to that year;
provided, however, such assessment shall have the vote or
written consent of Voting Members or their alternates
representing fifty-one (51%) percent of the Class I' A " vote in
the Association other than Declarant and of the Oass IIB"
Member, if such exists; provided, further, after the conversion
of the Class "B" membership, any such assessment shall have the
vote or written assent of (a) Voting Members or their alternates
representing fifty-one (51%) percent of the total votes of the
Association, and (b)
Voting Members or their
alternates representing fifty-one (51%) percent of the total
votes of the Voting Members other than the Declarant. The
Association may also levy a Special Assessment against any
Member to reimburse the Association for costs incurred in
bringing a Member and his Unit into compliance with the
provisions of the Declaration, any amendments thereto: the
Articles, the By-Laws, and the Association Rules and
Regulations, which Special Assessment may be levied upon the
vote of the Board after notice to the Member and an opportunity
for a hearing. The Association may also levy a Special
Assessment against any Subdistrict or residential association to
reimburse the Association for costs incurred in bringing the
Subdistrict or residential association into compliance with the
provisions of the Declaration, any amendments thereto, the
Articles, the By-Laws, and the Association Rules and
Regulations, which Special Assessment may be levied upon the
vote of the Board after notice to the senior officer thereof and
an opportunity for a hearing.
SECTlON 4. Lien for
Assessments. Upon
recording of a notice of lien, there shall exist a perfected
lien
for unpaid assessments on the
respective Unit prior and superior to all other liens, except
(1) all taxes, bonds, assessments, and other levies which by law
would be superior thereto, and (2) the lien or charge of any
first mortgage of record (meaning any recorded mortgage or deed
of trust with first priority over other mortgages or deeds of
trust) made in good faith and for value.
Such lien, when delinquent, may
be enforced by suit, judgment, and foreclosure.
The Association, acting on
behalf of the Owners, shall have the power to bid for the Unit
at foreclosure sale and to acquire and hold, lease, mortgage,
and convey the same. During the period in which a Unit is owned
by the Association following foreclosure: (a) No right to vote
shall be exercised on its behalf; (b)
no assessment shall be assessed
or levied on it; and (c) each other Unit shall be
charged, in addition to its usual assessment, its equal pro rata
share of the assessment that would have been charged such Unit
had it not been acquired by the Association as a result of
foreclosure. Suit to recover a money judgment for unpaid common
expenses and attorney's fees shall be maintainable without
foreclosing or waiving the lien securing the same. After notice
and hearing, the Board may temporarily suspend the voting rights
of a Member who is in default in payment of any assessment.
SECTlON 5. Capital Budget and
Contribution. The
Board of Directors shall annually prepare a capital budget which
shall take into account the number and nature of replaceable
assets, the expected life of each asset, and the expected repair
or replacement cost. The Board shall set the required capital
contribution, if any, in an amount sufficient to permit meeting
the projected capital needs of the Association, as shown on the
capital budget, with respect both to amount and timing by annual
assessments over the period of the budget. The capital
contribution required shall be fixed by the Board and included
within the budget and assessment, as provided in Section 2 of
this Article. A copy of the capital budget shall be distributed
to each Member in the same manner as the operating budget.
SECTlON 6. Date of
Commencement of Annual Assessments.
The annual assessments provided for herein shall commence as to
all Residential Units within a Subdistrict on the first day of
the month following the date on which a certificate of occupancy
is issued on the first Residential Unit within that Subdistrict
and on each Commercial Unit within a Subdistrict on the first
day of the month following the date on which a certificate of
occupancy is issued on the Commercial Unit, but in no event
later than two (2) years after the date of conveyance of title
by the Declarant to the first Owner of such Commercial
Unit. Assessments shall be due
and payable in a manner and on a schedule as the Board of
Directors
may provide. The first annual
assessment shall be adjusted according to the number of months
then remaining in that fiscal year.
SECTlON 7. Subordination of
the Lien to First Deeds of Trust and First Mortgages.
The lien of assessments, including interest, late charges
(subject to the limitations of Florida law), and costs
(including attorney's fees) provided for herein, shall be
subordinate to the lien of any first Mortgage upon any Unit. The
sale or transfer of any Unit shall not affect the assessment
lien. However, the sale or transfer of any Unit pursuant to
judicial or nonjudicial foreclosure of a first Mortgage shall
extinguish the lien of such assessments as to payments which
became due prior to such sale or transfer. No sale or transfer
shall relieve such Unit from lien rights for any assessments
thereafter becoming due. Where the Mortgagee of a first Mortgage
of record or other purchaser of a Unit obtains title, his
successors and assigns shall not be liable for the share of the
common expenses or assessments by the Association chargeable to
such Unit which became due prior to the acquisition of title to
such Unit by such acquirer. Such unpaid share of common expenses
or assessments shall be deemed to be common expenses collectible
from all of the Units, including such acquirer, his successors
and assigns.
SECTION 8. Capitalization of
Association. Upon
acquisition of record title to a Residential Unit from
Declarant, a contribution shall be made by or on behalf of the
Owner to the capital of the Association in
an amount equal to one-sixth
(1/6) of the amount of the General Assessment for that year
levied upon
the Residential Unit as
determined by the Board. This amount shall be deposited into the
purchase and sales escrow and disbursed therefrom to the
Association.
ARTICLE XI
ARCHITECTURAL STANDARDS
The Board of Directors shall
have the authority and standing, on behalf of the Association,
to enforce
in courts of competent
jurisdiction decisions of the committees established in Sections
1 and 2 of this Article XI. This Article may not be amended
without the Declarant's written consent so long as the Declarant
owns any land subject to this Declaration or subject to
annexation to this Declaration.
No construction, which term
shall include within its definition staking, clearing,
excavation, grading, and other site work, and no plantings or
removal of plants, trees, or shrubs shall take place except in
strict compliance with this
Article, until the requirements thereof have been fully met, and
until the approval of the appropriate committee has been
obtained.
SECTlON
1. New Construction Committee.
The New Construction Committee (NCC) shall have
exclusive jurisdiction over all
original construction on any portion of the Properties. The NCC
shall prepare and, on behalf of the Board of Directors, shall
promulgate design and development guidelines and application
and review procedures, all as part of the Community Development
Code and Land Use Standards ("CDC-LUS"). Copies shall be
available from the New Construction Committee for review. The
guidelines and procedures shall be those of the Association, and
the NCC shall have sole and full authority to prepare and to
amend the CDC-LUS. It shall make both available to Owners,
builders, and developers who seek to engage in development of or
construction upon all or any portion of the Properties and such
Owners, builders and developers shall conduct their operations
strictly in
accordance
therewith. Until one hundred (100%) percent of the Properties,
computed on an area basis, have been developed and conveyed to
purchasers in the normal course of development and sale, the
Declarant retains the right to appoint all members of the NCC,
which shall consist of at least three (3),
but no more
than five (5), persons. There shall be no surrender of this
right prior to that time, except in a written instrument in
recordable form executed by Declarant. Upon the expiration of
such right, the
Board of
Directors shall appoint the members of the NCC in the same
manner as provided in Section 2 of this Article for the
Modifications Committee.
SECTION 2. Modifications
Committees. If
appointed by the Board of Directors, the following shall exist:
The Residential Modifications
Committee (RMC) shall consist of at least three (3) and no more
than five (5) members, all of whom shall be appointed by the
Board of Directors. The RMC shall have exclusive jurisdiction
over modifications, additions, or alterations made on or to
existing Residential Units or structures containing Residential
Units and the open space, if any, appurtenant thereto; provided,
however, the RMC may delegate this authority to the appropriate
board or committee of any residential association subsequently
created or subsequently subjected to this Declaration so long as
the RMC has determined that such board or committee has in force
review and enforcement practices, procedures and appropriate
standards at least equal to those of the RMC. Such delegation
may be revoked and jurisdiction reassumed at any time by written
notice.
The Commercial Modifications
Committee (CMC) shall consist of at least three (3) and no more
than five (5) members, all of whom shall be appointed by the
Board of Directors. The CMC shall have
exclusive jurisdiction over
modifications, additions, or alterations made on or to existing
Commercial Units or structures containing Commercial Units and
the open space, if any, appurtenant thereto; provided, however,
the CMC may delegate this authority to the appropriate board or
committee of any commercial association subsequently created or
subsequently subjected to this Declaration so long as the CMC
has determined that such board or committee has in force review
and enforcement practices, procedures and appropriate standards
at least equal to those of the CMC. Such delegation may be
revoked and jurisdiction reassumed at any time by written
notice.
The Modification Committees
shall promulgate detailed standards and procedures governing
their
areas of responsibility and
practice. In addition thereto, the following shall apply. Plans
and specifications showing the nature, kind, shape, color, size,
materials, and location of such modifications, additions, or
alterations, shall be submitted to the appropriate Modifications
Committee for approval as to quality of workmanship and design
and harmony of external design with existing structures, and as
to location in relation to surrounding structures, topography,
and finish grade elevation. No permission or approval shall be
required to repaint in accordance with an originally approved
color scheme, or to rebuild in accordance with originally
approved plans and specifications. Nothing contained herein
shall be construed to limit the right of an owner to remodel the
interior of his Unit, or to paint the interior of his Unit any
color desired. In the event that the appropriate Modifications
Committee fails to approve or to disapprove such plans or to
request additional information reasonably required within
forty-five (45) days after submission, the plans shall be deemed
approved.
ARTICLE XII
USE RESTRICTIONS
The Properties shall be used
only for commercial, residential, recreational, and related
purposes as may more particularly be set forth in this
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