North Carolina Dreams Estates
● Declaration of Restrictions.
STATE OF NORTH CAROLINA
COUNTY OF ASHE
DECLARATION OF RESTRICTIONS
NORTH CAROLINA DREAMS SUBDIVISION
This
Declaration made as of this ____ day of ____________ 200_ by NORTH
CAROLINA DREAMS, INC., a Florida corporation, with principal offices
at 801 West 49th Street, Suite 224, Hialeah, Florida 33012.
WITNESSETH:
WHEREAS, Declarant is the owner of the real property hereinafter
described as the Property which it desires to develop as individual
residential Lots; and
WHEREAS, Declarant wishes to ensure the use of the Lots for
attractive residential purposes; to prevent nuisances; to prevent
the impairment of the attractiveness and value of the Property; and
to maintain the desired tone of the community; and it is desired
that these restrictions shall secure to each Owner the full benefit
and enjoyment of such Lot and any residence constructed thereon with
no greater restriction on the free and undisturbed use of the
premises than is necessary to ensure the same advantages to the
other Owners; and
WHEREAS, Declarant desires to provide for the creation and
establishment of the Development as a single family residential
community and for the management, maintenance, repair and
replacement of the Common Properties and, to this end, desires to
subject the Property to the Covenants, all of which are for the
benefit of the Property and each present and future Owner, occupant
and Mortgagee of portions thereof; and
WHEREAS, it is desirable for said creation and establishment and
management, maintenance, repair and replacement to create an entity
to which shall be delegated and assigned the powers of maintaining
and administering the Common Properties, administering and enforcing
the Covenants, and collecting and disbursing the Assessments and
charges hereinafter established; and
WHEREAS, the Association has been organized under the Not-for-Profit
Corporation Laws of the State of North Carolina for the purpose of
exercising the aforesaid functions.
NOW, THEREFORE, Declarant, for itself, its successors and assigns,
declares that the Property is and shall be held, transferred, sold,
conveyed, occupied and encumbered subject to the Covenants.
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1. DEFINITIONS. The following words when used in this Declaration or
any Supplemental Declaration shall have the meanings set forth
below:
1.1 "Assessment" shall mean the portion of Common Expenses allocable
to each Lot, which shall be on an equal, per Lot basis, and shall
include annual and special Assessments.
1.2 "Association" shall mean and refer to the North Carolina Dreams
Property Owners Association, Inc., a North Carolina Not-for-Profit
corporation.
1.3 'Board of Directors" or "Board" shall mean and refer to the
board of directors of the Association.
1.4 "Common Expenses" shall mean and refer to expenses incurred by
the Association for the benefit of the Property and Owners
including, without limitation, expenses incurred for management,
maintenance, repair and replacement, capital expenditures and
reserve funds.
1.5 "Common Properties" shall mean and refer to the properties
hereinafter described to be managed, maintained, repaired and
replaced by the Association.
1.6 "Covenants" shall mean and refer to the covenants, conditions
and restrictions set forth in this Declaration.
1.7 "Declarant" shall mean NORTH CAROLINA DREAMS, INC., a Florida
corporation, its successors and such of its assigns to which all or
any portion of the rights of Declarant hereunder are assigned by
written instrument recorded among the Public Records of Ashe County,
North Carolina.
1.8 "Declaration" shall mean and refer to the Declaration of
Restrictions - North Carolina Dreams.
1.9 "Development" shall mean all phases of the North Carolina Dreams
subdivision.
1.10 "Lot" shall mean and refer to each subdivided portion of the
Property as established by the Plat recorded among the Public
Records.
1.11 "Member" shall mean and refer to those persons and entities who
are members of the Association by virtue of the ownership of a Lot.
1.12 "Mortgagee" shall mean any bank, savings and loan association,
insurance company, mortgage company, real estate investment trust,
agency of the United States government, Federal National Mortgage
Association, Federal Home Loan Mortgage Corporation or a lender
generally recognized as an institutional lender, or Declarant, any
of which hold a mortgage encumbering any portion of the Property.
1.13 "Owner" shall mean and refer to the record owner of fee simple
title to a Lot.
1.14 "Plat" shall mean the plat which includes the Property
described as NORTH CAROLINA DREAMS, PHASE 1, as recorded in Book 5,
Page 360, Ashe County, North Carolina Registry.
1.15 "Property" shall mean and refer to the real property within the
Plat.
1.16 "Public Records" shall mean and refer to the Public Records of
Ashe County, North Carolina.
1.17 "Supplemental Declaration" shall mean and refer to a
Supplemental Declaration of Restrictions which instrument shall be
utilized in order to amend or modify this Declaration.
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2. PROPERTY SUBJECT TO THIS DECLARATION.
2.1 The Property. The real property which is and shall be held,
transferred, sold, conveyed, occupied and encumbered subject to this
Declaration consists of the Property, situate, lying and being in
Ashe County, North Carolina.
2.2 Additions to The Property. Declarant shall have the right, but
shall be under no obligation, to bring within the scope of this
Declaration additional real property as it, in its sole discretion,
shall deem appropriate, and delete portions of the Property from the
scope of the Declaration. The additions and deletions authorized by
this paragraph may be made by Declarant without the consent or
joinder of the Association, any Member, Owner, Mortgagee or any
other person or entity by recording among the Public Records a
Supplemental Declaration(s) with respect to the property to be added
to or deleted from the scope of this Declaration.
2.3 Supplemental Declarations(s). Declarant shall have the right to
file Supplemental Declarations pertaining to the Property and the
Common Properties, or to amend or modify the Declaration, without
obtaining the consent or joinder of the Association, any Member,
Owner, Mortgagee or any other person or entity.
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3. MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION.
3.1 Classes of Membership. The Association shall have two classes of
Members:
3.1.1 Class A shall consist of all Owners except Declarant.
3.1.2 Class B shall be restricted to Declarant.
3.2 Changes in Class of Membership. Upon the conveyance by Declarant
of a Lot, Declarant's Class B Membership applicable to such Lot
shall be converted to Class A Membership.
3.3 Votes of Class A and Class B Members.
3.3.1 Class A Members shall be entitled to one vote for each Lot
owned.
3.3.2 The Class B Member shall be entitled to three (3) votes for
each Lot owned by it.
3.4 Changes in Members. In the event property is brought within or
deleted from the scope of this Declaration, the number of
Memberships shall be increased or decreased, as applicable, by one
(1) Membership for each Lot located on such property.
3.5 Board of Directors
3.5.1 The Board of Directors shall consist of three (3) Directors.
Until such time as Declarant no longer owns any portion of the
Property, all of the Directors shall be appointed by Declarant who
shall have the right to remove and replace Directors as Declarant
deems appropriate. Directors appointed by Declarant need not be
Members.
3.5.2 At such time as Owners are entitled to elect Directors, the
Owners shall select the Directors in the manner set forth in the
Association's Bylaws.
3.5.3 Except as to Directors appointed by Declarant, each Director
shall serve for a term of one (1) year. However, at the first
election, two (2) Directors shall be elected for terms of one (1)
year, and one (1) Director shall be elected for a term of two (2)
years.
3.5.4 The first election of Directors shall take place within ninety
(90) days after Declarant no longer owns any portion of the Property
or such earlier date as shall be designated by Declarant.
3.6 Proxies. All Members of the Association may vote and transact
business at any meeting of the Association by proxy as provided in
the Bylaws of the Association.
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4. TERM OF COVENANTS.
All of the provisions of this Declaration shall be binding upon all
Lots and Owners until December 31, 2025, and shall be extended in
full force and effect for successive ten (10) year terms unless
sooner terminated as of December 31, 2025 or the then applicable ten
(10) year term by an instrument executed by the then Owners of a
majority of Lots and recorded among the Public Records.
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5. RESTRICTIONS, CONDITIONS AND COVENANTS
5.1 Limitation of One House per Lot. All Lots are for single family
residential use only and no structure shall be erected or allowed to
remain on any Lot except residential structures ("Home(s)") and
garages or carports appurtenant to said Homes. No duplexes or
apartments shall be constructed or placed on any Lot, and no Lot
shall be subdivided or its boundary lines changed unless each part
of the subdivided Lot becomes a part of an adjacent Lot and each
resulting modified Lot does not violate the rules, regulations and
ordinances of applicable governmental authorities. Each resulting
modified Lot shall thereafter constitute one Lot.
5.2 Reservation of Easement and Access. Declarant reserves unto
itself, its successors and assigns an easement over, under and
across each Lot and other portions of the Property for the purpose
of installing and maintaining all utilities including, but not
limited to, telephone and television cable, electric, water and
sewer lines. Declarant reserves the right to cut drains for surface
water wherever and whenever such drainways may be necessary. In
exercising these easements, no water line, sewer line, power line,
telephone or television cable line shall be located more than 10
feet from a Lot line not adjoining a road.
5.2.1 Declarant further reserves unto itself, its successors and
assigns an easement over, under and across each Lot and other
portions of the Property for the purpose of drilling wells for a
potable water supply to serve one or more Lots and/or to install
water and/or sewer disposal lines to serve one or more Lots if, in
the reasonable opinion of Declarant, such water and/or sewage lines
or installations are necessary and so long as such installations do
not materially interfere with the affected Lot owners use and
enjoyment of said Lot. The cost of any such installations shall be
the obligation prorata of the Lot owners benefitting from same.
5.2.2 For the purpose of performing emergency repairs, Declarant or
duly authorized agents or employees of Declarant, shall be permitted
to enter upon any Lot or the exterior of any improvements thereon at
any time with only such notice as is reasonable under the
circumstances.
5.2.3 The reservations and authority vested in Declarant pursuant to
this paragraph 5.2 are also for the benefit of and may be exercised
by the Association.
5.3 Prohibition of Temporary Structures, Limitation of Signage. No
house trailers, mobile homes, shack, tent or other temporary
structure shall be placed or allowed to remain on any Lot. No
outside toilets may be placed on any Lot except for a limited time
only during construction of a Home. Upon completion of the Home, if
an outside toilet is on a Lot, it shall immediately be removed from
the Lot.
5.3.1 No billboards or signs shall be erected or allowed to remain
on any Lot except "For Sale" or "For Rent" signs which have been
approved by the Association.
5.3.2 Notwithstanding the foregoing, Declarant may place house
trailers, mobile homes or other temporary structures and "For Sale"
signs on Lots as long as Declarant retains ownership of at least one
(1) Lot and so long as said structures are reasonably well
maintained.
5.4 Approval of Sewage System. Each person or persons erecting a
Home on a Lot shall install a septic tank in accordance with the
rules, regulations, and specifications as approved by the North
Carolina Department of Public Health and the State Stream Sanitation
Department.
5.5 Disposal of Garbage. All rubbish and garbage shall be kept in
covered containers and such containers shall be stored in covered
receptacles constructed for this purpose in a screened area not
generally visible from any road. Rubbish and garbage shall be
disposed of in a manner that will not be hazardous to the health of,
or obnoxious to, other residents in the Development. No Lot shall be
used or maintained as a dumping ground for rubbish, trash or other
waste.
5.6 Restrictions on Fuel Tanks and Clothes Lines. Fuel tanks shall
not be installed without the prior written approval of the
Architectural Review Board ("ARB"), and all fuel tanks shall be
buried. All clothes lines shall be concealed from public view.
5.7 Requirements for Setback from Property Lines. No Home shall be
erected on any Lot nearer than 15 feet from the road abutting said
Lot nor shall it be constructed nearer than 25 feet from any
adjoining Lot. The ARB shall have the authority to waive the setback
requirements but such waiver must be approved in writing in advance
by the ARB.
5.8 Reservation of Roads and Parking Requirements. All Lots are
conveyed subject to the rights-of-way for roads as shown on the
Plat, which are installed for the benefit and use of all Owners.
Declarant reserves unto itself, its successors and/or assigns and
the Association a non-exclusive right-of-way easement for ingress,
egress and regress over all roads and rights-of-way in the
Development. No road, right-of-way or drive shall be built,
established or maintained across any Lot or other portion of the
Property so as to adversely affect access to or from an adjacent Lot
or to the Development without the prior written consent of the
Association.
5.9 Limitations on Design and Length of Time for Construction. No
construction may begin until the proposed plans and specifications,
including design and type of materials, exterior color or finish,
plot plans and construction schedule have been approved in writing
by the ARB. The ARB shall act reasonably in the approval process. No
alteration of any existing Home or portion thereof may be made
without such approval.
5.9.1 All Homes must be completed within one (1) year from the
beginning of construction, and a Home shall be deemed completed when
the Owner has obtained a Certificate of Occupancy from the
appropriate governmental authorities.
5.9.2 No Home shall be erected or allowed to remain on a Lot that
has less than seven hundred (700) square feet of heated floor space
in living area, which shall be determined on the basis of outside
dimensions.
5.10 Restrictions on Commercial Usege. No Lots shall be used for
commercial, business or manufacturing purposes without the prior
written consent of the Association.
5.11 Restrictions on Animals. No animals or fowl, except household
pets, shall be kept or allowed to remain on any portion of the
Property for any purpose without the prior written consent of the
Association.
It is anticipated that horses, certain farm animals or livestock may
be allowed in some areas of the Development which shall be
designated mini- farms. However, the areas surrounding the housing
of such animals shall be kept and maintained in an orderly, clean
manner. No animals or fowl of any description which are a nuisance
or an annoyance shall be allowed to remain on the Property for any
purpose. Pets may not be allowed to run at large in the Development
and must be kept under the direct and immediate control and
supervision of the Owner, or when not under such controlled
supervision, must be kept restrained on the Owner's Lot.
5.11 Prohibition of Nuisances. Any activity which interferes with
television, cable or radio reception of an Owner shall be deemed a
nuisance and a prohibited activity. In the event of a dispute as to
what may be or may become a nuisance, such dispute or question shall
be submitted to the Board of Directors which shall render a decision
in writing and which decision shall be the final resolution of such
dispute or question.
5.12.1 No noxious or offensive trade or activity shall be carried on
upon any Lot nor shall anything be done thereon which may be or
become an annoyance or a nuisance.
5.12.2 No loud parties or excessive noise of any type, including
vehicles, or any other conduct offensive to others will be
tolerated.
5.12 Maintenance of Drainage. No Lot Owner shall interfere with or
divert the natural flow or drainage of any creek, spring or stream.
5.13 Maintenance of the Natural Environment. No animals, plants or
other natural features shall be removed from, and no alterations
shall be made to the Common Properties, except under the direction
of the ARB. No mountain laurel and no tree larger than six (6")
inches in diameter at ground level shall be cut or removed from any
of the Lots without permission of the ARB.
5.14 Maintenance of Property. All Owners shall maintain their Homes
in a neat, presentable, and attractive condition including, but not
limited to, keeping garbage in closed containers, cutting grass and
weeds, and removing trash and debris from each Lot. When deemed
necessary by the Association, the Association may perform or cause
to beperformed the above described maintenance work, and the
applicable Owners shall reimburse the Association for all expenses
incurred in the performance of said maintenance.
5.15 Erection of Antennas. All antennas shall be erected in such a
manner so as to protect and maintain the natural beauty of the
environment, and no antennae shall be erected so as to be in public
view. No satellite dishes shall be erected, except for satellite
dishes not exceeding 52 inches in diameter. The Association may,
from time to time, adopt reasonable rules and regulations governing
the installation and maintenance of satellite dishes.
5.16 Limitations on Automobiles, Trucks, Recreational Vehicles,
Boats and their Repair. No boats, recreational vehicles, motorcycles
or other motorized vehicles except four-wheel passenger automobiles
less than 6.0 feet in height shall be stored upon any Lot, nor shall
maintenance, repair or bodywork upon any boat or motor vehicle be
performed upon any Lot. All vehicles on any Lot must be registered
and shall be in good working order and condition.
5.17 Prohibition of Motorized Vehicles. other than Automobiles. Only
motorcycles, mini-bikes, motor scooters, or go-carts which have
noise-reduction mufflers may be operated on the roads within the
Development. Any such vehicles shall be operated in a safe and
careful manner. The Association may, from time to time, adopt
reasonable rules and regulations governing the use of such vehicles.
5.18 Prohibition Against Firearms and Explosives. No firearms of any
caliber, gauge, kind, or description may be discharged on any
portion of the Property. No fireworks or pyrotechnic devices may be
exploded on any portion of the Property, except on designated
holidays such as the Fourth of July, subject to reasonable rules and
regulations adopted by the Association.
5.19 Limitations on Fencing. No chain link fences shall be
constructed within the Development.
5.20 Prohibitions Against Oil Drilling or Mineral Exploration. No
oil drilling, oil development operations, oil refining, quarrying or
mining operations of any kind shall be permitted upon any portion of
the Property, nor shall oil wells, tanks, tunnels, mineral
excavations, or shafts be permitted thereon. No derrick or other
structure designed for use in drilling for oil or natural gas shall
be erected, maintained, or permitted upon any portion of the
Property.
5.21 Maintenance of Street Visibility. No tree branches or other
vegetation or obstruction within sightline of driveway approaches to
any road or any road intersections will be permitted and the same
shall be maintained and/or removed by the Owner on whose Lot said
trees, vegetation or obstruction exists.
5.22 Parking. Parking shall not be permitted on any road in the
Development and each Owner shall build his own parking facilities on
his own Lot for at least two (2) automobiles.
5.23 Children. Owners are responsible for the conduct of their
children and of any guest.
5.24 Governmental Regulations. The Lots and Homes constructed
thereon, in addition to the restrictions and conditions herein,
shall be subject to all present and future rules, regulations and
ordinances of Ashe County, North Carolina.
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6. MAINTENANCE OF COMMON PROPERTIES: ASSESSMENT.
6.1 Common Properties. The initial Common Properties shall consist
of roads as reflected on the Plat, the entrance feature to the
Development, and other common areas as designated on the Plat. If
additional real property is added to the Property, the Common
Properties will be expanded to include roads within future plats and
such other facilities as may be declared to be Common Properties in
a Supplemental Declaration(s).
6.2 Assessments. The Association shall be responsible for the
management, maintenance, repair and replacement of the Common
Properties. Each Owner, by acceptance of a deed to a Lot, whether or
not it shall be so expressed in such deed, covenants and agrees to
pay the Association annual Assessments in an amount sufficient to
pay such Owner's share of the Common Expenses for such management,
maintenance, repair and replacement and special Assessments. All
Assessments shall be levied by the Board on an equal, per Lot basis.
6.3 Creation of the Lien and Personal Obligation for Assessments.
Each Assessment, together with interest as provided in this
Declaration, costs and reasonable attorney's fees, shall be a charge
and a continuing lien upon the Lot against which each such
Assessment is made, and shall also be the personal obligation of the
owner of each Lot at the time the Assessment was imposed. Such
personal obligation shall also be binding upon such Owner's
successor in title unless such successor is a Mortgagee.
The lien created by Assessments not paid when due shall be evidenced
by a Claim of Lien recorded among the Public Records.
6.4 Special Assessments for Capital Improvements and Emergencies. In
addition to the annual Assessments described above, the Association
may levy a special Assessment for the purpose of defraying, in whole
or in part, the cost of any construction, reconstruction, repair or
replacement of a capital improvement upon the Common Properties,
including fixtures and personal property related thereto, or for the
purpose of meeting any unanticipated expenses of the Association.
Special Assessments may be levied only upon the written consent of
the Owners of at least fifty-one percent (51 %) of the voting
interests.
6.5 Assessment Rate. Both annual and special Assessments shall be
fixed on an equal, per Lot basis for all Lots.
6.5.1 The annual Assessments shall be the amount necessary to fund
Common Expenses for each fiscal year of the Association. Until
January 1 of the calendar year following conveyance of the first
Lot, the maximum annual Assessment shall be $125.00 per Lot. For
each calendar year thereafter, the maximum annual Assessment may not
be increased by more than ten (10%) percent of the prior year's
maximum annual Assessment. If the annual Assessment for any fiscal
year is not increased by the maximum amount permitted, the
difference between the actual increase made and the maximum
permissible increase for that year shall be computed and the annual
Assessment in the next succeeding fiscal year may be increased by
ten per cent (10%) plus that amount.
6.5.2 Any increase in an annual Assessment in excess of that
permitted in this paragraph 6.5 may be levied only upon the written
consent of the Owners of at least fifty-one (51 %) percent of the
voting interests.
6.5.3 The Declarant may be excused from the payment of its share of
annual and special Assessments which would have been assessed
against those Lots owned by the Declarant during that time period,
beginning on the date of the conveyance of the first Lot in the
Development to an Owner other than the Declarant, and ending five
(5) years thereafter, providing (1) the Assessments imposed on
Owners other than the Declarant for the first year will not increase
over the initial assessment of $125.00 per year, (2) such
Assessments in the future are not increased more than five (5%)
percent per year on a cumulative basis, and (3) the Declarant pays
all Common Expenses incurred during the above- stated time period
and not produced by Assessments at the above-stated guaranteed
levels received from Owners other than the Declarant.
6.6 Date of Commencement of Annual Assessment: Due Dates. The annual
Assessments shall commence for each Lot upon the closing of the sale
of such Lot. Each purchaser of a Lot shall be assessed for the first
annual Assessment at closing, which shall be prorated based on the
number of months remaining in the fiscal year of the closing. The
Association shall fix the amount of each annual Assessment against
each Lot at least thirty (30) days in advance of the beginning of
each fiscal year. Written notice of the annual Assessment and the
due dates shall be sent to each Owner.
6.7 Effect of Nonpayment of Assessment. Remedies of the Association.
Any Assessment not paid within thirty (30) days after the due date
shall bear interest from the due date at the highest rate permitted
by law or, if no such rate exists, eighteen percent (18 %) per
annum. In addition to such interest charge, the delinquent Owner
shall also pay such late charges as have been established by the
Association. The Association may bring an action at law against the
delinquent Owner or foreclose the lien of the Assessment against the
Lot, or both. All interest, late payment charges, costs and
reasonable attorney's fees of such legal actions shall be added to
the amount of such Assessment. No Owner may waive or otherwise
escape liability for the payment of Assessments by not using the
Common Properties or by abandoning his Lot.
6.8 Subordination of the Lien to Mortgage. The lien of the
Assessments shall be subordinate to the lien of any institutional
first mortgage or deed of trust executed in favor of a Mortgagee
which is recorded prior to the recordation of a Claim of Lien. The
sale or transfer of any Lot shall be subject to the lien created by
an Assessment, and the grantee or transferee of any Lot shall be
responsible for the payment of unpaid Assessments. However, the sale
or transfer of any Lot pursuant to mortgage foreclosure, or any
proceeding in lieu thereof, shall extinguish the lien of such
Assessments as to payments which became due prior to such sale or
transfer provided, however, that the Association may, in its sole
discretion, include such unpaid Assessments as part of an annual or
a special Assessment collectable on an equal, per Lot basis from all
Owners including a purchaser at a foreclosure sale or proceeding in
lieu thereof. Such amounts shall be payable by all Owners
notwithstanding the fact that such amounts may cause the annual
Assessment to be in excess of the maximum permitted under paragraph
6.5 above. No sale or transfer, whether pursuant to a mortgage
foreclosure or otherwise, shall relieve the purchaser of such Lot
from liability for any Assessments thereafter becoming due or from
the lien thereof, and such lien shall at all times be subordinate to
the lien of any mortgage executed in favor of a Mortgagee, except if
a Claim of Lien is recorded prior to the recordation of such
mortgage.
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7. ENFORCEMENT OF COVENANTS.
In the event of a violation or breach
of this Declaration by an Owner (including the members of the
Owner's family and/or guests) or agent of an Owner, the Declarant,
the Association or any Owner shall have the right to proceed at law
or in equity to compel compliance with, or prevent the violation of,
the terms hereof. The failure to enforce any provision contained
herein, however long continued, shall not be deemed a waiver of the
right to do so thereafter, as to the same breach or as to a breach
occurring prior or subsequent thereto, and shall not bar or affect
its enforcement. The invalidation by a Court of competent
jurisdiction of any portion of this Declaration shall in no way
affect any of the other provisions which shall remain in full force
and effect.
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8. ARCHITECTURAL REVIEW BOARD.
8.1 Necessity of Architectural Review Board and Approval. No Home or
structure of any kind including, without limitation, any building,
wall, driveway or decorative building shall be commenced, erected,
placed or maintained upon any Lot, nor shall any material addition,
change or alteration therein or thereof be made, unless and until
the plans and specifications (collectively, the "Plans") and
location of the same shall have been submitted to, and approved in
writing by the ARB. All Plans shall be evaluated as to harmony of
external design and location in relation to surrounding structures
and topography. Owners shall supply completed Plans to the ARB and
no Plans shall be deemed approved unless a written approval is
granted by the ARB. Any change or modification to approved Plans
shall not be deemed approved unless approved in writing by the ARB.
8.2 Architectural Review Board. The ARB shall consist of three (3)
Members. Declarant shall have the right to appoint all Members of
the ARB, or such lesser number as it may choose, as long as
Declarant owns at least one Lot. At such time that Declarant owns no
Lots, the Association shall appoint the members of the ARB.
8.3 Powers and Duties of the Architectural Review Board. The ARB
shall have the following powers and duties:
8.3.1 To prepare the Architectural Planning Criteria ("Criteria")
for the Development and to recommend from time to time to the Board
of Directors modifications and/or amendments to the said Criteria.
Any modification or amendment to the Criteria shall be consistent
with the provisions of this Declaration, and shall not be effective
until adopted by a majority of the Board of Directors at a meeting
duly called and noticed at which a quorum of the Board is present.
Notice of any modification or amendment to the Criteria, including a
copy of such proposed modification or amendment, shall be delivered
to each Member, but the delivery to each Member of notice and a copy
of any modification or amendment to the Criteria shall not
constitute a condition precedent to the effectiveness or validity of
such amendment or modification.
8.3.2 To require submission to the ARB of two (2) complete sets of
all Plans and a complete color palette for any improvement described
in paragraph 8.1 above, the construction, modification or placement
of which is proposed upon a Lot. The ARB may also require submission
of samples of building materials proposed for use on any Lot, and
may require such additional information as reasonably may be
necessary for the ARB to fully evaluate the proposal in accordance
with this Declaration and the Criteria.
8.3.3 To approve or disapprove any improvement described in
paragraph 8.1 above.
8.3.4 At the discretion of the Board of Directors, to adopt a
schedule of reasonable fees for processing requests for ARB approval
of proposed improvements. Such fees, if any, shall be payable to the
Association at the time that Plans are submitted to the ARB.
8.3.5 The Criteria are intended as guidelines to which adherence
shall be required by each Owner provided, however, the ARB shall
have the express authority to waive any requirement set forth in
said Criteria if, in its opinion, such waiver is in the best
interest of the Development and the deviation requested is
compatible with the character of the Development. A waiver shall be
evidenced by an instrument signed and executed by the President and
Secretary of the Association upon unanimous approval of the ARB.
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9. INSURANCE.
9.1 Common Properties. The Board of Directors shall maintain:
9.1.1 public liability insurance in an amount not less than
$1,000,000.00 insuring the Association and its Members against
liability for any negligent act of commission or omission which
occurs on, in or about the Common Properties or for which the
Association may be liable;
9.1.2 fire and windstorm insurance with extended coverage
endorsements, water damage, vandalism and malicious mischief
endorsements and, if applicable, flood insurance, insuring the
Common Properties in such amounts as shall be determined by the
Board; and
9.1.3 such other insurance as the Board may deem proper to protect
the entities and persons named in this paragraph; and
9.1.4 the Board of Directors shall obtain Directors and Officers
liability insurance, fidelity insurance, and other such insurance it
may deem proper to protect the entities and persons named in this
paragraph. All insurance premiums for such coverage shall be paid
for by the Association and assessed to all Owners as Common
Expenses. To the extent required by Mortgagees, they shall be named
as additional insureds under such insurance policies.
9.2 Homes and Improvements,
9.2.1 Each Owner shall obtain and maintain insurance for his Home
and other improvements providing the same type of coverage specified
in paragraph 9.1.2 above. Such insurance shall be sufficient to
cover the full replacement value of the Home and for necessary
repair and reconstruction work.
9.2.2 In the event of damage or destruction by fire or other
casualty to any Home or other improvement, the Owner thereof shall
clear the Lot of all debris within ninety (90) days of the event. If
the Home or other improvement is only partially damaged, then the
Owner shall make any repairs necessary to continue the structural
soundness of any Home or other improvement and restore the aesthetic
appearance of the Home and the grounds within six (6) months of the
event. Within thirty (30) days of the receipt of the insurance
proceeds paid pursuant to an insurance policy covering such Home or
other improvement, but in no event later than three (3) months from
the date of such damage or destruction, the Owner shall commence
reconstruction of the Home or other improvement, and complete
reconstruction within six (6) months from the date of such damage or
destruction. If the Home or other improvement is totally destroyed
or damaged to the extent of 50% or more and Owner elects not to
rebuild, then the Owner shall remove the remaining structure and
clear the Lot of all debris within ninety (90) days of the event. In
the event reconstruction of the Home or other improvement is
commenced but is terminated before completion of the Home or other
improvement, and such termination continues for a period of at least
thirty (30) days, or the Lot is not cleared of debris or the Home or
other improvement is not made structurally sound, or reconstruction
or commencement of clearance of the Lot does not occur as provided
above, the Association shall have the right, but shall not be
obligated to, clear the Lot of debris, make any structural repairs
as are necessary to make the Home or other improvement structurally
sound, and restore the aesthetic appearance of the Home and/or Lot.
The cost of such work and/or repairs shall be an expense
attributable to the applicable Lot and shall become an immediately
due and payable special Assessment against the applicable Lot
collectible in the same manner as any other Assessment provided for
in paragraph 6.
9.3 . Property Owned by Declarant. As to any portion of the Property
owned by Declarant, it shall obtain such insurance coverage as it
determines is appropriate.
9.4 Damage to Common Properties Caused by Owners. In the event that
the Common Properties or any other property owned by the Association
are damaged by reason of any act or omission of any Owner (including
such Owner's guests, invitees and agents), such Owner shall be fully
responsible for paying the costs of any repair and replacement of
such damage, but nothing in this paragraph is intended to relieve
any insurance company from its duties and obligations under any
policy issued by it.
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10. GENERAL PROVISIONS.
10.1 Amendments to Declaration. This Declaration may be amended by
the approval of Members holding not less than two-thirds (2/3) of
the votes of the membership and two-thirds (2/3) of the Board. An
amendment shall be signed by the President or a Vice President of
the Association who shall certify therein that such amendment was
approved by Members entitled to vote two-thirds (2/3) of the votes
of the Association and by two-thirds (%) of the Board at a meeting
of the Members and Board, respectively, called for such purpose.
However, as long as a Declarant owns at least one (1) Lot, no
amendment shall be effective unless approved in writing by the
Declarant.
10.2 Dissolution of Association. Upon dissolution of the
Association, its real and personal assets, including the Common
Properties, shall be dedicated to an appropriate public agency to be
devoted to purposes as nearly as practicable the same as those to
which they were required to be devoted by the Association. In the
event such dedication is refused, such assets shall be granted,
conveyed and assigned to any non-profit corporation, association,
trust or other organization to be devoted to purposes as nearly as
practicable the same as those to which they were required to be
devoted by the Association. No such disposition of the Association
properties shall be effective to divest or diminish any right or
title of any Member vested in him under this Declaration, or under
any subsequently recorded covenants or other instruments applicable
to the Property.
10.3 Notices. Any notice required to be sent to any Member under the
provisions of this Declaration shall be deemed to have been properly
sent when mailed, postage paid, to the last known address of such
person on the records of the Association at the time of such
mailing, delivered in person to such address or transmitted via
facsimile.
10.4 Administration of Association. The administration of the
Association shall be in accordance with the provisions of the
Association's Bylaws and Articles of Incorporation which are made a
part of this Declaration and are attached hereto as Exhibits A and
B, respectively.
10.5 Amendments Required by Mortgagees. Without the necessity of
obtaining the approval or consent of the Association, any Owners or
any other party and, notwithstanding any other provision of this
Declaration, Declarant shall have the power and authority to execute
and record, without the joinder of any other party, amendments to
this Declaration (including the Articles of Incorporation and Bylaws
of the Association) which now or hereafter may be requested or
required under the regulations or guidelines of the Federal National
Mortgage Association, Federal Home Loan Mortgage Corporation,
Government National Mortgage Association, or any other governmental,
quasi-governmental or government chartered entity which owns or
expects to own one or more mortgages which encumber any portion of
the Property, or does or expects to insure the payment of one or
more such mortgages, or that are requested or required by any
Mortgagee to enhance the salability of its mortgages to one or more
of the foregoing. Nothing contained herein shall affect the right of
the Declarant to make whatever amendments or Supplemental
Declarations which are otherwise expressly permitted hereby without
the consent or approval of the Association, any Owner or other
person or entity.
10.6 Interpretation. The Board of Directors shall have the right,
except as limited by any other provisions of this Declaration, the
Articles of Incorporation or Bylaws, to determine all questions
arising in connection with this Declaration and to construe and
interpret its provisions, and its good faith determination,
construction or interpretation shall be final and binding. In all
cases, the provisions of this Declaration shall be given that
interpretation or construction that will best fulfill the general
plan of the Development.
10.7 Execution of Documents. The plan for the development of the
Property may from time to time require the execution of certain
documents required by various governmental agencies. To the extent
that said documents require the joinder of Owners, the Declarant by
its duly authorized officers may, as the agent or the
attorney-in-fact for the Owners, execute, acknowledge and deliver
such documents, and all Owners, by virtue of their acceptance of
deeds, irrevocably nominate, constitute and appoint the Declarant,
through its duly authorized officers, as their proper and legal
attorneys-in-fact for such purpose. Said appointment is coupled with
an interest and is irrevocable.
10.8 Binding Effect. The provisions of this Declaration shall be
binding upon, and inure to the benefit of the Declarant and all
Owners, and their respective personal representatives, successors
and assigns, all Mortgagees of the Property, lessees and others
presently or in the future having any interest in the Property.
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