STATE OF ALABAMA
COUNTY OF MONTGOMERY
DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR THE ORCHARDS PLAT NO. 1A
THIS DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR THE ORCHARDS (“Declaration”) is made as of the date set forth on the signature page hereof by NRB Developers, Inc., an Alabama corporation (the “Declarant”).
Declarant is the owner of the real property described on Exhibit A, which is attached and incorporated by reference. This Declaration imposes upon the Property mutually beneficial restrictions under a general plan of improvement for the benefit of the owners of each portion of the Property, and establishes a flexible and reasonable procedure for the overall development, administration, maintenance and preservation of the Property. In furtherance of such plan, this Declaration provides for the creation of The Orchards Homeo\Vllers’ Association, Inc. to own, operate and maintain Common Areas and to administer and enforce the provisions of this Declaration, the Bylaws, and the Architectural Review Guidelines. (Capitalized terms are defined in Article 1 below).
Declarant hereby declares that all of the Property shall be held, sold, used and conveyed subject to the following covenants, conditions, restrictions and easements which shall run with the title to the real property subjected to this Declaration. This Declaration shall be binding upon all parties having any right, title, or interest in any portion of the Property, their heirs, successors, successors-in-title, and assigns, and shall inure to the benefit of each owner of any portion of the Property.
ARTICLE 1. DEFINITIONS
The terms in this Declaration and the exhibits to this Declaration shall generally be given their natural, commonly accepted definitions except as otherwise specified. Capitalized terms shall be defined as set forth below.
1.1 “Additional Property”: Any property other than the Property which Declarant subjects to the terms and conditions of this Declaration and/or the Articles and Bylaws.
1.2 “ARB”: The Architectural Review Board, as described in Section 8.2.
1.3 “‘Architectural Review Guidelines”: The design, Architectural and Architectural Review Guidelines and application and review procedures applicable to all or any portion of the Property promulgated and administered pursuant to Article 8.
1.4 “Area of Common Responsibility”: The Common Area ‘ together with any additional areas for which the Association has or assumes responsibility.
1.5 “Articles of Incorporation” or “Articles”: The Articles of Incorporation of The Orchards Homeowners’ Association, Inc., as filed in the Office of the Judge of Probate of Montgomery County, Alabama, in Corporation Book 334 at Page 459.
1.6 “Assessments”: Each and all of the General Assessments, the Special Assessments and the Specific Assessments, as applicable.
1.7 “‘Association”: The Orchards Homeowners’ Association, Inc., an Alabama corporation, its successors or assigns.
1.8 “Board of Directors” or “Board”: The body responsible for administration of the Association, selected as provided in the Bylaws and serving as the board of directors under the Articles.
1.9 “Bylaws”: The Bylaws of The Orchards Homeowners’ Association, Inc., as now in existence and as they may be amended, from time to time.
1.10 “Class B Member Termination Date”: The Class B Member Termination Date shall have the same meaning ascribed in Section 3.2(c)(ii).
1.11 “Common Area”: All real and personal property, including easements, which the Association owns or holds possessory or use rights.
1.12 “Common Expenses”: The actual and estimated expenses incurred, or anticipated to be incurred, by the Association relating to the Area of Common Responsibility and the operations of the Association, including any reasonable reserve, as the Board may find necessary and appropriate pursuant to the Governing Documents. Common Expenses shall not include any expenses incurred by the Declarant during the Development Period for installation of infrastructure or original capital improvements by Declarant unless approved by Members holding a Majority of the total Class A votes of the Association.
1.13 ”Common Use Area”: That portion of the Common Area identified on the Plat and any other areas, if any, from time to time designated by the Association as Common Use Area intended for general common use by Owners and, if allowed, Owner’s Permittees.
1.14 “Community-Wide Standard”: The standard of conduct, maintenance, or other activity generally prevailing throughout the Property. Such standard shall initially be established by the Declarant and may be more specifically determined by the Board of Directors and the ARB.
1.15 ”Days”: Calendar days; provided, however, if the time period by which any action required hereunder must be performed expires on a Saturday, Sunday or legal holiday, then such time period shall be automatically extended to the close of business on the next regular business day
1.16 “Declarant“: NRB, Inc., an Alabama corporation, or any successor, successor- in-title, or assign who takes title to any portion of the Property for the purpose of development and/or sale and who is designated as the Declarant in a recorded instrument executed by the immediately preceding Declarant; provided, however, there shall be only one (1) “Declarant” hereunder at any time.
1.17 “Development Period”: The period of time from the date of this Declaration until the Class B Member Termination Date. The Declarant may, but shall not be obligated to, unilaterally terminate the Development Period prior to the Class B Member Termination Date by recording a written instrument in the Public Records.
1.18 “General Assessments”: Assessments levied on all Lots subject to assessment under Article 7 to fund Common Expenses for the general benefit of all Lots, as more particularly described in Sections 7.1 and 7.2.
1.19 “Governing Documents”: The Declaration, Bylaws, Articles of Incorporation, all Architectural Review Guidelines, rules and regulations of the Association, and all additional covenants governing any portion of the Property or any of the above, as each may be established and amended from time to time.
1.20 “Lot”: Any lot shown on a Plat.
1.21 “Majority”: Those votes, by Owners, Members, or other groups, as the context may indicate, totaling more than fifty percent (50%) of the total eligible number.
1.22 “Member”: A Person subject to membership in the Association pursuant to Section 3.1.
1.23 ”Mortgage”: A mortgage or similar form of security instrument affecting title to any Lot.
1.24 “Mortgagee”: A beneficiary or holder of a Mortgage.
1.25 “Owner”: One (1) or more Persons who hold the record title to any Lot, including the Declarant, but excluding in all cases any party holding an interest merely as security for the performance of an obligation. If a Lot is owned by more th-e (1) Person, all such Persons shall be jointly and severally obligated to perform the respons1b1ht1es of such Owner.
1.26 “Owner’s Permittees”: A Person who is a family member (provided the requirements of Section 9.5 are met), contractor, employee, invitee, licensee or lessee of the Owner.
1.27 “Person”: A natural person, a corporation, a partnership, a limited liability company, a :fiduciary acting on behalf of another person or any other legal entity.
1.28 “Private Streets”: That portion of the Property shown as Cobbler Street, Cider Street, NRB Drive, Jonagold Drive, Barrel Lane, and Honey Crisp Lane on the Plat together with any other plat of the Property.
1.29 “Plat”: That certain map of The Orchards Plat No. 1, as the same is recorded in the Office of the Judge of Probate of Montgomery County, Alabama, in Plat Book 54, at Page 172, and any subsequent plat of property subjected to the terms and conditions of this Declaration.
1.30 “Property”: The real property described on Exhibit A, and all real and personal property, improvements and buildings thereon, and contractual rights associated therewith, including easements and licenses and subsequent plat of property subjected to the terms and conditions of this Declaration.
1.31 “Public Records”: The Office of the Judge of Probate of Montgomery County, Alabama.
1.32 “Specific Assessments”: Assessments levied in accordance with Section 7 .4.
ARTICLE 2, COMMON USE AREA, PRIVATE STREETS AND COMMON AREA
2.1 Common Use Area. Subject to the terms and conditions hereof, every Owner shall have a right and non-exclusive easement over and upon the Common Use Area for the intended use and enjoyment thereof in common with all other Owners and others permitted by this Declaration or the Association, which is appurtenant to and shall pass with the title to each Lot Any Owner may extend the Owner’s right of use and enjoyment of the Common Use Area to the Owner’s Permittees, subject to regulation by the Association. Without limiting the generality of the foregoing, the rights of use and enjoyment of the Common Use Area set forth herein are hereby made subject to the following:
- This Declaration and all other Governing Documents;
- Any restrictions or limitations contained in any deed conveying such property to the Association;
- The right of the Board to adopt, amend and repeal rules regulating the use and enjoyment of the Common Use Area, including rules limiting the number of guests who may use the Common Use Area and time of use;
- The right of the Board to suspend the right of an Owner to use any facilities within the Common Use Area pursuant to Section 4.3;
- The right of the Association to rent, lease or reserve any portion of the Common Use Area to any Owner for the exclusive use of such Owner and the Owner’s Permittees upon such conditions as may be established by the Board; and
- The right of the Board to permit the use of any facilities situated on the Common Use Area by persons other than Owners and Owner’s Permittees; the Board may, but shall not be required to, establish reasonable fees for the use of such facilities and rules regulating the use and enjoyment of these facilities,
2.2 Private Streets. Subject to the terms and conditions hereof, the owners shall have a right and non-exclusive easement of use and access in and to, over and across each Private Street for the purpose of ingress and egress to public rights-of-way by such Owners, and the Owner’s Permittees. The rights and non-exclusive easement granted herein are appurtenant to the title to each Lot, subject to:
- This Declaration and all other Governing Documents;
- The right of the Declarant, so long as the Declarant ovms any Private Street, to adopt, amend and repeal rules regulating the use and enjoyment of such Private Street, provided that the Declarant shall not by the adoption of any rule or regulation bar access ( except temporarily) of the Owners across such Private Street;
- The right of the Declarant to dedicate all or any part of any Private Street;
- The right of the Declarant to mortgage, pledge, or hypothecate all or any part of any Private Street as security for money borrowed or debts incurred, provided that the Declarant shall not subject to such Private Street to any security instrument without obtaining the agreement of the lender to subordinate its interest in such Private Street to the easements for the Over contained in this Section;
- The rights of the Declarant and the Association to maintain and repair, as necessary, the Private Streets; and
- In the event of a conveyance of the Private Streets by the Declarant to the Association and the recognition of the Private Streets by the Association as a part of the Common Area, the provisions of Section 2.l(a) tbru (f), both inclusive, and Section 2.4(a) thru (f), both inclusive, shall also apply with respect to the Private Streets.
2.3 Easements Appurtenant. The easements provided in Sections 2.1 and 2.2 shall be appurtenant to and shall pass with the title to each Lot, but shall not be deemed to grant or convey any fee ownership interest in the Common Use Area or Private Streets subJect thereto.
2.4 Common Area. With respect to the Common Area not consisting of the Common
Use Area and the Private Streets, the provisions of Section 2.4(a) thru (f), both inclusive, shall apply, and, in addition, Declarant and the Association shall have the following rights with respect to the Common Area:
- The right of the Association to mortgage, pledge, or hypothecate any or all of its real or personal property as security for money borrowed or debts incurred;
- The right of the Association to dedicate or transfer all or any portion of the
Common Area, subject to any approval requirements set forth in the Governing Documents;
- The right of the Declarant to conduct activities and establish facilities within the Property as provided in Article 12;
- The right of the Association to levy assessments against each Lot for the purpose of maintaining the Common Area and facilities in compliance with the provisions of this Declaration and the Governing Documents;
- The right of Declarant to permit such persons or entities, including the Pike Road School, as Declarant shall designate to use the Common Areas;
- The Declarant reserves, for itself, its agents, employees, representatives, invitees, successors and assigns, the permanent and perpetual right to use any portions of the Common Areas as an open-air market for the rental of space for pushcarts, kiosks, stands or similar temporary sales structures. Such uses may be for special events or on a recurring or daily basis. The Declarant also reserves for itself, its agents, employees, representatives, invitees, successors and assigns, the right to use portions of the Common Areas for festivals or other events intended to enrich an enliven the community. The Declarant further reserves the right of access through the Common Areas for all such purposes. The Declarant may, but is not obligated to, assign such rights to the Association at any time.
- The right of Declarant and the Association to have, grant and use general (i.e., blanket) and specific easements over, under and through the Common Area.
2.5 No Partition. Except as permitted in this Declaration, there shall be no judicial partition of the Common Area. No Person shall seek any judicial partition unless the portion of the Common Area that is the subject of such partition action has been removed from the provisions of this Declaration. This Section shall not prohibit the Association from acquiring and disposing of real property that may or may not be subject to this Declaration.
2.6 Condemnation. The Association shall be the sole representative with respect to condemnation proceedings concerning Common Area and shall act as attorney-in-fact for all Owners in such matters. The award made for such taking or proceeds of such conveyance shall be payable to the Association.
ARTICLE 3. MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION
3.1 Membership. Every Owner shall be a Member of the Association. There shall be only one (1) membership per Lot. If a Lot is owned by more than one (I) Person, all co-Owners shall share the privileges of such membership, subject to reasonable Board regulation and the restrictions on voting set forth in Section 3.2 and in the Bylaws. The membership rights of an Owner which is not a natural person may be exercised by any officer, director, member, manager, partner or trustee of such Owner, or by any individual designated from time to time by the Owner in a written instrument provided to the secretary of the Association.
3.2 Voting. The Association shall have two (2) classes of membership, Class A and Class B.
- Class A: Class A Members shall be all Owners of a residential lot. Each Class A Member shall have one (1) vote for each Lot in which he or she holds the interest required for membership under Section 3.1; provided however, there shall be only one (1) vote per Lot. In any situation where there is more than one (1) O’-“Tier of a Lot, the vote for such Lot shall be exercised as the co-Owners determine among themselves and advise the secretary of the Association in writing prior to the vote being taken. Absent such advice, the Lot’s vote shall be suspended if more than one (1) Person seeks to exercise it.
- Class B:
(i) The sole Class B Member shall be the Declarant. The rights of the Class B Member, including the right to approve, or -withhold approval of, actions proposed under this Declaration, the Bylaws and the Articles, are specified in the relevant sections of this Declaration, the Bylaws and the Articles. The Class B Member shall have the sole right to appoint all of the members of the Board of Directors until the Class B Member Termination Date.
(ii) The Class B membership shall terminate upon the sale of all Lots by Declarant to Persons and completion of development and construction on all Lots. The completion of development and construction of all Lots shall be deemed to occur upon issuance of a certificate of occupancy for a completed dwelling on every Lot. In addition, the Class B Member may, but shall not be obligated to, unilaterally terminate the Class B membership upon an earlier date in its sole discretion by recording a written instrument in the Public Records. The termination shall be effective at 11 :59 p.m. on the date of termination as determined above (herein such termination of Class B membership is sometimes referred to as the “‘Class B Member Termination Date”).
(iii) On the Class B Member Termination Date, the Declarant shall
become a Class A Member entitled to a Class A vote for each Lot which it owns.
ARTICLE 4. RIGHTS AND OBLIGATIONS OF THE ASSOCIATION
4.1 Function of Association. The Association shall be the entity responsible for management, maintenance, operation and control of the Area of Common Responsibility and all improvements thereon. The Association shall be the primary entity responsible for enforcement of this Declaration and such rules and regulations pertaining to the use of the Property as the Association may adopt pursuant to this Declaration and the Bylaws. The Association shall also be responsible for administering and enforcing the Architectural standards and controls set forth in this Declaration and in the Architectural Review Guidelines. The Association shall perform its functions in accordance with the Governing Documents and the laws of the State of Alabama.
4.2 Personal Property and Real Property for Common Use. The Association may acquire, hold, and dispose of tangible and intangible personal property and real property. The Declarant and its designees, v.ith the Declarant’s prior written consent, may convey to the Association improved or unimproved real estate, or interests in real estate, located within the Property, personal property and easements and other property interests. Such property shall be accepted by the Association and thereafter shall be maintained by the Association at its expense for the benefit of its Members, subject to any restrictions set forth in the deed or other instrument transferring such property to the Association.
4.3 Declarant shall not be required to make any improvements or repairs whatsoever to property to be conveyed and accepted pursuant to this Section. Upon a written request of Declarant, the Association shall reconvey to Declarant any portion of the Property originally conveyed by Declarant to the Association for no consideration, to the extent conveyed by Declarant in error or needed by Declarant to make adjustments in property lines.
- Sanctions. The Board or any committee established by the Board, with the Board’s authorization, may impose, for and on behalf of the Association, sanctions against any Owner or Owner’s Permittees for any violation of the Governing Documents. In the event that any Owner or such Owner’s Permittees violates any of the Governing Documents and a fine is imposed, the fine may first be assessed against the violator; provided however, if the fine is not paid by such violator within the time period set by the Association, the Owner shall pay the fine upon notice from the Board. Sanctions may include, without limitation:
(i) Imposing monetary fines which shall constitute a lien upon the Lot of the Owner associated with such violation;
(ii) Filing notices of violations in the Public Records providing record notice of any violation of the Governing Documents;
(iii) Suspending an Owner’s right to vote; and
(iv) Suspending any Person’s right to use any recreational facilities within the Common Area; provided, however, nothing herein shall authorize the Board to limit ingress or egress over the Private Streets to or from a Lot.
(v) Self-Help. In addition, the Association may elect to enforce any provision of the Governing Documents by exercising self-help (specifically including, but not limited to, the filing of liens in the Public Records for non-payment of assessments and other charges, the towing of vehicles that are in violation of parking rules, the removal of pets that are in violation of pet rules, or the correction of any maintenance, construction or other violation of the Governing Documents) without the necessity of compliance with the procedures set forth in the Bylaws. The Association may levy Specific Assessments to cover all costs incurred in bringing a Lot into compliance with the Governing Documents.
(vi) Filing Suit. The Association may also elect to enforce any provisions of the Governing Documents by suit at law or in equity to enjoin any violation or to recover monetary damages or both without the necessity of first taking any other action or following any other procedure.
(vii) Remedies. Any and all remedies set forth in this Declaration, the Bylaws or any other Governing Documents shall be cumulative of any remedies available at law or in equity. In any action or remedy taken by the Association to enforce the provisions of the Governing Documents, if the Association prevails, it shall be entitled to recover all costs, including, without limitation, attorneys’ fees and court costs, incurred in such action.
(viii) Exercise by Board. The Association shall not be obligated to take action to enforce any covenant, restriction, or rule which the Board in the exercise of its business judgment determines is, or is likely to be construed as, inconsistent with applicable law, or in any case in which the Board determines that the Association’s position is not sufficient to justify taking enforcement action. Any such determination shall not be construed a waiver of the right of the Association to enforce such provision under any circumstances or prevent the Association from enforcing any other covenant, restriction or rule.
(ix) Enforcement of Ordinances by Board. The Association, by contract or other agreement, may enforce county, city, state and federal ordinances, if applicable, and permit local and other governments to enforce ordinances on the Property for the benefit of the Association and its Members.
4.5 Implied Rights; Board Authority. The Association may exercise any right or privilege given to it expressly by this Declaration or the Bylaws, or reasonably implied from or reasonably necessary to effectuate any such right or privilege. Except as otherwise specifically provided in this Declaration, the Bylaws, the Articles, or by law, the Board may exercise all rights and powers of the Association without a vote of the membership.
- The Association shall indemnify every officer, director, ARB member, and committee member against all damages, liabilities, and expenses, including attorneys fees, incurred in connection with any action, suit, or other proceeding (including settlement of any suit or proceeding, if approved by the then Board of Directors) to which he or she may be a party by reason of being or having been an officer, director, ARB member or committee member, except that such obligation to indemnify shall be limited to those actions for which liability is limited under this Section, the Articles of Incorporation and Alabama law.
- The officers, directors, ARB members and committee members shall not
be liable for any mistake of judgment, negligent or otherwise, except for their own individual willful misfeasance, malfeasance, misconduct, or bad faith. The officers, directors, ARB members, and committee members, acting in such capacity or capacities, shall have no personal liability with respect to any contract to other commitment made or action taken in good faith on behalf of the Association. The Association shall indemnify and forever hold each such officer director, ARB member and committee member harmless from any and all liability to others o account of any such contract, commitment or action. This right to indemnification shall not be exclusive of any other rights to which any present or former officer, director, ARB member or committee member may be entitled. The Association may, as a Common Expense, maintain general liability and officers’ and directors liability insurance to fund this obligation.
4.7 Dedication of or Grant of Easements on Common Area. The Association may dedicate or grant easements across portions of the Common Area to any local, state or federal governmental or quasi-governmental entity, agency, authority or board.
4.8 Security. Each Owner and the Owner’s Permittees shall be responsible for their own personal safety and the security of their property while on or about the Property. The Association may, but shall not be obligated to, maintain or support certain activities within the Property designed to make the Property safer than they otherwise might be, including, but not limited to, the maintenance of an entrance gate on the Property and the employment or engagement of a security guard or security service in connection with the entrance gate on the Property. The Association may also install and maintain video surveillance or other security or surveillance measures. In the event that any security service or device is provided by the Association or the Declarant, the Association or Declarant shall be entitled to discontinue any such security service or services, or device or devices, at any time and from time to time, and neither Association nor Declarant is responsible for any losses or damages caused by such discontinuation of service. Neither the Association, the Declarant, nor any of their officers, directors, members or employees shall in any way be considered insurers or guarantors of security within the Property, nor shall any of them be held liable for any loss or damage by reason of failure to provide any security, adequate security or ineffectiveness of any security measures undertaken, including, but not limited to, the maintenance of an entrance gatehouse and the employment or engagement of a security guard or security service in connection with the entrance gatehouse or the Property. No representation or warranty is made that any entrance gatehouse, security guard, security service or other security measure cannot be compromised or circumvented, nor that any such service, system or security measure undertaken will prevent loss or provide the detection or protection for which the service, system or measure is designed or intended. Each Owner acknowledges, understands and covenants to inform such 0\\rner’s Permittees that the Association, its Board of Directors, ARB and committees, Declarant, and any successor Declarant are not insurers or guarantors of safety and that each Person using the Property assumes all risks of personal injury and loss or damage to real and personal property, including loss to any building or other improvements on such Owner’s Lot and all contents on such Owner’s Lot, resulting from theft, criminal activity or other activity of third parties.
4.9 Private Streets. Neither the Association nor the Declarant shall be held liable for any loss or damage by reason of use of any Private Street within the Property for any purpose by Owners, and the Owner’s Permittees and others using the Private Streets. Each Owner acknowledges, understands and agrees, and covenants to inform the Owner’s Permittees, that the Association, its Board of Directors, ARB and committees, and the Declarant are not insurers or guarantors of safety and that any Person using the Private Streets shall do so only as permitted under this Declaration and the Association’s rules and regulations, and applicable governmental laws, ordinances, rules and regulations. Each Person assumes all risks of personal injury, and loss or damage to property, including Lots, resulting from or associated with use of the Private Streets within the Property. Each Owner further acknowledges, understands and agrees, and covenants to inform the Owner’s Permission, that certain inconveniences may be associated with vehicular access to and from the Private Streets.
4.10 Notice of Disclaimer as to Lakes. Neither the Association nor the Declarant, nor any of their officers, directors, members or employees, shall be held liable for any loss or damage by reason of use of the Lakes within the Property for any purpose by Owners, the Owner’s Permission and others using same. Each Owner acknowledges, understands and covenants to inform the Owner’s Permittees that the Association, its Board of Directors, ARB and committees and the Declarant are not insurers or guarantors of safety and that any Person using any Lake shall do so only as permitted under this Declaration and the Association’s rules and regulations, and applicable governmental laws, ordinances, rules and regulations. Each Person assumes all risks of personal injury and loss or damage to property, including Lots, resulting from or associated with use of the Lakes.
4.11 Provision of Services. The Association may provide (and may discontinue the provision of) services and facilities for the Owners and the Owner’s Permittees. The Association shall be authorized to enter into contracts or other similar agreements with other entities, including Declarant, to provide such services and facilities. The Association is specifically authorized to enter into subsidy contracts or contracts for “in kind” contribution of services, materials or a combination of services and materials with the Declarant or other entities for payment of Common Expenses. The Association shall be further permitted to require Owners to utilize services delivered by the provider designated by the Association. The costs of services and facilities contracted for or provided by the Association shall be funded by the Association through General Assessments or Specific Assessments, depending on whether the service or facility is provided to all Lots or only to certain designated Lots. In addition, the Board shall be authorized to charge use and consumption fees for services and facilities through Specific Assessments or by requiring payment at the time the service or facility is provided. As an alternative, the Association may arrange for the costs of the services and facilities to be billed directly to Owners by the provider(s) of such services and facilities. By way of example, the services that may be provided include water or other utility services, garbage collection, security and similar services and facilities. The Association shall be permitted to modify or cancel services or facilities provided, if any, or to provide additional services and facilities. Nothing contained herein can be relied upon as a representation as to the services and facilities, if any, which will be provided by the Association.
ARTICLE 5. MAINTENANCE
5.1 Association’s Responsibility.
- The Association shall have the right to maintain and keep in good condition, order and repair the Area of Common Responsibilities, which shall include, but need not be limited to :
(i) All Common Use Area;
(ii) The Private Streets;
(iii) All landscaping and other flora and all structures and improvemnts, including but not limited to any entry features, including any parking areas, walls, perimeter fences, landscape fences, walking trails, or paths, situated upon the Common Area;
(iv) Subject to Section 9.18, any perimeter fence or wall of the
Association, regardless of whether such improvements are situated upon the Common Area or within a Lot;
(v) All furnishings, equipment and other personal property of the Association;
(vi) The Lakes and any drainage facilities which serve as part of the drainage and storm water retention system for the Property, including any retaining walls, bulkheads or dams (earthen or otherwise) retaining water therein, and any outlet control structures, lighting, pumps, conduits, and similar equipment installed therein or used in connection therewith;
(vii) Such additional portions of any property included within the Area of Common Responsibility as may be dictated by this Declaration, the Governing Documents or any contract or agreement for maintenance thereof entered into by the Association; and
(viii) Any property and facilities owned by the Declarant and made available, on a temporary or permanent basis, for the primary use and enjoyment of the Association and its Members, such property and facilities to be identified by written notice from the Declarant to the Association and to remain a part of the Area of Common Responsibility and be maintained by the Association until such time as Declarant revokes such privilege of use and enjoyment by written notice to the Association.
- The Association may, as a Common Expense, maintain other property and improvements which it does not own, including, without limitation, property dedicated to the public, or provide maintenance or services related to such property over and above the level being provided by the property owner, if the Board of Directors determines that such maintenance is necessary or desirable to maintain the Community-Wide Standard.
- The Association shall maintain the facilities and equipment within the Area of Common Responsibility in operation, except for any periods necessary, as determined in the sole discretion of the Board.
- The Association may be relieved of all or any portion of its maintenance responsibilities herein to the extent that (i) such maintenance responsibility is otherwise assumed by or assigned to one (1) or more Owners, or (ii) such property is dedicated to any local, state, or federal government or quasi-governmental entity; provided however, that in connection with such assumption, assignment or dedication, the Association may reserve or assume the right or obligation to continue to perform all or any portion of its maintenance responsibilities, if the Board determines that such maintenance is necessary or desirable to maintain the Community-Wide Standard.
- Except as provided above, the Area of Common Responsibility shall not be reduced by amendment of this Declaration or any other means during the Development Period except with the prior written consent of the Declarant.
- Except as otherwise specifically provided herein, all costs associated with maintenance, repair and replacement of the Area of Common Responsibility shall be a Common Expense to be allocated among all Lots as part of the General Assessments, without prejudice to the right of the Association to seek reimbursement from the 0\\11ler(s) of, or other Persons responsible for, certain portions of the Area of Common Responsibility pursuant to the Governing Documents, or any agreements with the Owner(s) thereof.
5.2 Owner’s Responsibility.
- General. Each Owner shall maintain the Owner’s Lot, and all buildings, structures, parking areas, sprinkler and irrigation systems, landscaping and other flora, fences and other improvements on the Lot in a manner consistent with the CommunityWide Standard and all Governing Documents, unless such maintenance responsibility is otherwise assumed by or assigned to the Association. Each Owner shall also maintain the driveway serving the Owner’s Lot.
- Enforcement of Maintenance of Responsibilities. In addition to any other enforcement rights, if an Owner fails properly to perform the Owner’s maintenance responsibility, the Association may perform such maintenance responsibilities and assess all costs incurred by the Association against the Lot and the Owner in accordance with
Section 7.4(a). The Association shall afford the Owner five (5) days’ notice and an opportunity to cure the problem prior to entry, except when entry is required due to an emergency situation. Entry under this Section shall not constitute a trespass.
5.3 Standard of Performance. Responsibility for maintenance shall include responsibility for repair and replacement, as necessary. All maintenance shall be performed in a manner consistent with the Community-Wide Standard and all Governing Documents.
ARTICLE 6. INSURANCE AND CASUALTY LOSSES
6.1 Association Insurance.
- Required Coverages. The Association, acting through its Board or its duly authorized _ agent, may obtain and continue in effect the following types of insurance all in such
amounts and with such deductibles as the Association, acting through its Board or its duly authorized agent, shall deem necessary or advisable:
(i) Blanket property insurance on any Area of Common Responsibility;
(ii) Commercial general liability insurance on the Area of Common Responsibility, insuring the Association and its Members;
(iii) Worker’s compensation insurance and employers liability insurance, if and to the extent required by law;
(iv) Directors’ and officers’ liability coverage;
(v) Fidelity insurance covering all Persons responsible for handling Association funds; and
(vi) Such additional insurance as the Board determines advisable.
- Premiums. Premiums for all insurance on the Area of Common Responsibility shall be Common Expenses and shall be included in the General Assessments. In the event of an insured loss, the deductible shall be treated as a Common Expense and assessed against all Lots. However, if the Board reasonably determines that the loss is the result of the negligence or-willful misconduct of one (1) or more Owners or the Owner’s Permittees, then the Board may specifically assess the full amount of such deductible against such Owner( s) and their Lots pursuant to Section 7 .4.
- Damage and Destruction.
(i) In the event of any insured loss covered by insurance held by the Association, only the Board or its duly authorized agent may file and adjust insurance claims and obtain reliable and detailed estimates of the cost of repair or reconstruction. Repair or reconstruction, as used in this subsection, means repairing or restoring the property to substantially the condition in which it existed prior to the damage, a11o-wing for changes or improvements necessitated by changes in applicable building codes.
(ii) Any damage to or destruction of the Common Area shall be repaired or reconstructed, unless the Members holding at least sixty-seven percent (67%) of the total Class A votes in the Association, and during the Development Period, the Declarant, decide -within sixty (60) Days after the loss not to repair or reconstruct. No Mortgagee shall have the right to participate in the determination of whether the damage or destruction to the Common Area shall be repaired or reconstructed.
(iii) If determined in the manner described above that the damage or destruction to the Common Area shall not be repaired or reconstructed and no alternative
improvements are authorized, the affected property shall be cleared and maintained by the Association consistent with the Community Wide Standard.
(iv) Any insurance proceeds remaining after paying the costs of repair or reconstruction, or after such settlement as is necessary and appropriate, 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 Mortgagees and may be enforced by the Mortgagee of any affected Lot.
(v) If insurance proceeds are insufficient to cover the costs of repair or reconstruction, the Board of Directors may, without a vote of the Members, levy Special Assessments to cover the shortfall.
6.2 Owners’ Insurance. By virtue of taking title to a Lot, each Owner covenants and agrees with all other Owners and with the Association to carry property insurance for the full replacement cost of all insurable improvements on the Owner’s Lot, less a reasonable deductible. Each Owner further covenants and agrees that in the event of damage to or destruction of structures on or comprising the Owner’s Lot, the Owner shall proceed within 9 months to repair or to reconstruct in a manner consistent with the original construction ( or such other plans and specifications as are approved in accordance with Article 8). Alternatively, the Owner shall clear the Lot of all debris and ruins and maintain the Lot in a neat and attractive, landscaped condition consistent with the Community-Wide Standard. The Owner shall pay any costs that are not covered by insurance proceeds.
ARTICLE 7. ASSESSMENTS
7.1 Creation of Assessments.
- General. Declarant hereby creates three (3) types of Assessments for Association expenses as the Board may specifically authorize from time to time, including: (i) General Assessments as described in Section 7 .2; (ii) Special Assessments as described in Section 7.3; and (iii) Specific Assessments as described in Section 7.4. Each Owner, by accepting a deed for any portion of the Property, is deemed to covenant and agree to pay these Assessments. And, any owner of an interest in a platted lot which has multiple owners shall be jointly and severally liable with each other owner of an interest in that lot for assessments hereunder.
- Lien and Personal Obligation. All Assessments and other charges,together with interest, late charges, costs of collection, and attorneys fees actually incurred, shall be a charge and continuing lien upon each Lot against which the Assessment or charge is made until paid, as more particularly provided in Section 7 .5. Each such Assessment or charge, together with interest, late charges, costs, and attorneys’ fees actually incurred, also shall be the personal obligation of the Person who was the Owner of such Lot at the time the Assessment arose. Upon a transfer of title to a Lot, the grantee shall be jointly and severally liable for any Assessments and other charges due at the time of conveyance. However, no first Mortgagee who obtains title to a Lot by exercising the remedies provided in its Mortgage shall be liable for unpaid Assessments that accrued prior to such acquisition of title.
- Statement. The Association shall, upon request, furnish to any Owner liable for any type of Assessment a written statement signed by an Association officer or designee setting forth whether such Assessment has been paid. Such statement shall be conclusive evidence of payment. The Association may require the advance payment of a reasonable processing fee for the issuance of such statement.
- Payment. Assessments shall be paid in such manner and on such dates as the Board may establish, which may include discounts for early payment or similar time/price differentials and imposition of late charges in such amounts and at such times as the Board may determine. The Board may require advance payment of Assessments at closing of the transfer of title to a Lot and impose special requirements for Owners with a history of delinquent payment. If the Board so elects, Assessments may be paid in two (2) or more installments. Unless the Board otherwise provides, the General Assessment shall be due and payable in advance on the first day of each fiscal year. If any Owner is delinquent in paying any Assessments or other charges levied on the Owner’s Lot, the Board may require any unpaid installments of all outstanding Assessments to be paid in full immediately.
- No Exemption or Abatement. No Owner may exempt himself or herself from liability for assessments by non-Use of Common Area, including abandonment of such Owner’s Lot, or any other means. The obligation to pay Assessments is a separate and independent covenant on the part of each Owner. No diminution or abatement of Assessments or set-off shall be claimed or allowed for any alleged failure of the Association or Board to take some action or perform some function required of it, or for inconvenience or discomfort arising from the making of repairs or improvements, or from any other action taken by the Association or Board.
7.2 Computation of General Assessments.
- General. General Assessments shall be levied equally against all Lots subject to assessment and shall be set at a level which is reasonably expected to. produce total income for the Association equal to the total budgeted Common Expenses, including any reserves. In determining the level of General Assessments, the Board, in its discretion, ay consider other sources of funds available to the Association, including any surplus from prior years and any assessment income expected to be generated from any additional Lots.reasonably anticipated to become subject to Assessments during the fiscal year. Once established, such Assessment amount as determined above shall increase, without the consent of the Members of the Association but only with the approval of the Board, for each fiscal year of the Association thereafter by no greater than ten ( 10%) percent of the prior year’s General Assessment amount. The initial Assessment shall be as follows: $250.00 initiation fee and $750 total annual Assessment, to be paid in semi-annual installments due on January 1 and July 1 of each year.
- Option of Declarant. During the Development Period the Declarant may, but shall not be obligated to, reduce the General Assessments for any fiscal year by payment of a subsidy and/or contributions of services and materials , which may be treated as either a contribution or a loan to the Association, in the Declarant’s discretion. Payments by the Declarant in any year shall under no circumstances obligate the Declarant to continue such payments in future years unless otherwise provided in a written agreement between the Association and the Declarant, and the treatment of such payment shall be made known to the membership.
7.3 Special Assessments. In addition to other authorized Assessments. the Association may levy Special Assessments from time to time to cover unbudgeted expen;es or expenses in excess of those budgeted. Special Assessments shall be allocated equally among all Lots.
7.4 Specific Assessments. The Association shall have the power to levy Specific Assessments against a particular Lot or Lots as follows:
- To cover costs incurred in bringing the Lot(s) into compliance with the terms of the Governing Documents, or costs incurred as a consequence of the conduct of the Owner or the Owner’s Permittees; and
- In payment of fines levied by the Association pursuant to Section 4.3.
7.5 Lien for Assessments.
- General. The Association shall have a lien against each Lot to secure payment of Assessments and other charges under this Article, as well as interest at a rate to be set by the Board (subject to the maximum interest rate limitations of Alabama law), late charges in such amount as the Board may establish (subject to any applicable limitations of Alabama law), costs of collection and attorneys’ fees actually incurred. Such lien shall be superior to all other liens, except (i) the liens of all taxes, bonds, assessments, and other levies which by law would be superior, and (ii) the lien or charge of any first Mortgage of record (meaning any recorded Mortgage with first priority over other Mortgages) made in good faith and for value. Such lien may be enforced by suit, judgment, and judicial or nonjudicial foreclosure. All other Persons acquiring liens or encumbrances on any Lot after this Declaration has been recorded shall be deemed to consent that such liens or encumbrances shall be inferior to future liens for Assessments, as provided herein, whether or not prior consent is specifically set forth in the instruments creating such liens or encumbrances.
- Sale or Transfer; Foreclosure. The sale or transfer of any Lot shall not affect the Assessment lien or relieve such Lot from the lien for any subsequent Assessments. The Association may sue for unpaid Assessments and other charges authorized hereunder without foreclosing or waiving the lien securing the same. In the event of a foreclosure sale, the Declarant or the Association may bid for the Lot at the foreclosure sale and acquire, hold, lease, mortgage, and convey the Lot. while a Lot is owned by the Association following foreclosure:
(i)no right to vote shall be exercised on its behalf;
(ii) no Assessment shall be levied on it; and
(iii) each other Lot shall be charged, in addition to its usual Assessment, its pro rata share of the Assessment allocated to the Lot owned by the Association.
- Title by Foreclosure. A Mortgagee or other purchaser of a Lot who obtains title pursuant to foreclosure of the Mortgage shall not be personally liable for Assessments on such Lot due prior to such acquisition of title. Such unpaid assessments shall remain the personal obligation of the Owner of the Lot prior to foreclosure.
7.6 Date of Commencement of Obligation to Pay Assessments. The obligation to pay Assessments shall commence as to each Lot on the date which the Lot is conveyed to a Person by Declarant The first annual General Assessment, if any, levied on each Lot shall be adjusted according to the number of days remaining in the fiscal year at the time Assessments commence on the Lot and shall be due and payable as established by the Board.
7.7 Failure to Assess. Failure of the Board to establish Assessment amounts or rates or to deliver or mail each Owner an Assessment notice shall not be deemed a waiver, modification, or a release of any Owner from the obligation to pay Assessments. In such event, each Owner shall continue to pay General Assessments on the same basis as during the last year for which an Assessment was made, if any, until a new Assessment is levied, at which time the Association may retroactively assess any shortfalls in collections.
ARTICLE 8. ARCHITECTURAL STANDARDS
- No Lot shall be cleared and no exterior structure or improvement, as described in Section 8.4, shall be placed, erected, installed or made upon any Lot except in compliance with this Article, and with the prior written approval of the ARB uner Section 8.2, unless exempted from the application and approval requirements pursuant to Section 8.3.
- All dwellings constructed on any Lot shall be designed by and built in accordance with the plans and specifications approved by the ARB pursuant to Section _8.3(a)(1). Only a contractor or builder satisfying criteria established by the Association and the ARB shall be permitted to construct a dwelling on a Lot. The ARB may, at its sole d1scret1on, establish criteria and requirements upon which a contractor or builder may or may not be approved to construct such improvements. This is not to be construed as an attempt to show prejudice, malice or favor toward any person or entity. By approving or disapproving any contractor or builder the ARB shall not be deemed to pass upon the character or reputation of any contractor or builder or to warrant or guarantee the performance or work of any such contractor or builder in any manner whatsoever. The Owner and the Owner’s contractor or builder shall execute and deliver to the Association and the ARB such documents and provide such information as may be required by the Association and the ARB relating to the Owner’s and the Owner’s contractor’s or builder’s performance and adherence to the Governing Documents.
- This Article shall not apply to the activities of the Declarant or to improvements to the Common Area by or on behalf of the Association. Article 8 may not be amended during the Development Period without the Declarant’ s prior written consent.
8.2 Architectural Review.
- Responsibility for administration of the Architectural Review Guidelines and review of all applications for construction and modifications under this Article shall be handled by the ARB or its designated agent. The ARB shall consist of one (1) to five (5) persons and shall have exclusive jurisdiction over all construction on any portion of the Property. The members of the ARB need not be Members of the Association or representatives of Members, and may, but need not, include architects, landscape architects, engineers or similar professionals, whose compensation, if any, shall be established from time to time by the ARB.
- The Board shall have the right to appoint all members of the ARB who shall serve and may be removed at the Board’s discretion.
- The ARB may establish and charge reasonable fees for review of applications hereunder and may require such fees to be paid in full prior to review of any application. Such fees may include reasonable costs incurred in having any application reviewed by architects, engineers or other professionals. In addition, the ARB may require deposits while construction is pending on any Lot to ensure completion without damage to the Property.
8.3 Guidelines and Procedures.
- Architectural Review Guidelines.
(i) The Declarant shall prepare or cause to be prepared the initial Architectural Review Guidelines for the Property. The Architectural Review Guidelines may contain general provisions applicable to all of the Property, as well as specific provisions which vary according to land use and from one portion of the Property to another depending upon the location, unique characteristics, and intended use. The Architectural Review Guidelines are intended to provide standards and guidance to Owners and their contractors or builders regarding matters of particular concern to the ARB in considering applications hereunder. The Architectural Review Guidelines are not the exclusive basis for decisions of the ARB, and compliance with the Architectural Review Guidelines does not guarantee approval of any application. All approvals of the ARB must be in writing.
(ii) The ARB shall adopt the Architectural Review Guidelines prepared or caused to be prepared by Declarant at its initial organizational meeting and thereafter shall have sole and full authority to amend them, except that during the Development Period no amendment may be made without notice to and consent by Declarant. Any amendments to the Architectural Review Guidelines shall be prospective only and shall not apply to require modifications to or removal of structures previously approved once the approved construction or modification has commenced, There shall be no limitation on the scope of amendments to the Architectural Review Guidelines; the ARB is expressly authorized to amend the Architectural Review Guidelines to add new requirements and to remove requirements previously imposed or otherwise to make the Architectural Review Guidelines less restrictive. The ARB shall make the Architectural Review Guidelines available to Owners and their contractors or builders who seek to engage in development or construction within the Property.
(i) Plans and specifications meeting the Architectural Review Guidelines and showing the nature, kind, shape, color, size, materials and location of all proposed structures and improvements shall be submitted to the ARB for review and approval. In addition, information concerning drainage fields and placement, driveway placement, irrigation systems, drainage, lighting, landscaping and other features of proposed construction shall be submitted as applicable and as required by the Architectural Review Guidelines. In reviewing each submission, the ARB may consider the quality of workmanship and design, harmony of external design with existing structures, and location in relation to surrounding structures, topography and finish grade elevation, among other considerations. Decisions may be based solely on aesthetic considerations. Each Owner acknowledges that opinions on aesthetic matters are subjective and may vary over time.
(ii) Each application to the ARB shall contain a representation and warranty by the Owner that use of the plans submitted does not violate any copyright associated \.\11th the plans. Neither the submission of the plans to the ARB nor the distribution and review of the plans by the ARB shall be construed as publication in violation of the designer’s copyright, if any. Each Owner submitting plans to the ARB shall hold the members of the ARB, the Association and the Declarant hannless and shall indemnify said parties against any and all damages, liabilities and expenses incurred in connection with the review process of this Declaration.
(iii) Notwithstanding the above, the ARB by resolution may exempt certain activities from the application and approval requirements of this Article, provided such activities are undertaken in strict compliance with the requirements of such resolution.
(iv) Any Owner may remodel, paint or redecorate the interior of structures on the Owner’s Lot without approval of the ARB. However, modifications to the interior of screened porches, patios and similar potions of a Lot visible from outside the structures on the Lot shall be subject to approval of the ARB.
8.4 Specific Guidelines and Restrictions.
- Exterior Structures and Improvements. Exterior. structures and
improvements require prior approval of the ARB and shall include, but not be limited to, staking, clearing, excavation, grading and other site work; initial construction of any dwelling or accessory building; exterior alteration of existing improvements; basketball hoops; swing sets and similar sports and play equipment; clotheslines; garbage cans; wood piles; swimming pools; gazebos or playhouses; window air-conditioning units or fans; hot tubs; wells; solar panels; antennas; satellite dishes or any other apparatus for the transmission or reception of television, radio, satellite or other signals of any kind; hedges, walls, dog runs, animal pens, or fences of any kind, including invisible fences; artificial vegetation or sculpture; and planting or removal of landscaping materials. Notwithstanding the foregoing, the Declarant and the Association may regulate antennas, satellite dishes or any other apparatus for the transmission or reception of television, radio, satellite or other signals of any kind only in compliance with all applicable federal laws and regulations.
- Specific Guidelines. In addition to the foregoing activities requiring prior approval, the following items are strictly regulated, and the ARB shall have the right, in its sole discretion, to prohibit or restrict these items within the Property. Each Owner must strictly comply with the terms of this Section unless approval or waiver in \Vnting is obtained from the ARB. The ARB may, but it is not required to, adopt specific guidelines as part of the Architectural Review Guidelines or rules and regulations of the ARB that address the following items:
(i) Signs. No sign of any kind shall be erected on any Lot without the prior written consent of the ARB. Unless in compliance with this Section, no signs shall be posted or erected by any Owner or Owner’s Permittee on any Lot or in the Common Area (if such sign would be visible from the exterior of any structure or dwelling thereon as determined in the ARB’s sole discretion). The Declarant and the ARB reserve the right to adopt restrictions with respect to the size, content, color, lettering, design and placement of any approved signs. All signs must be professionally prepared. This provision shall not apply to entry, directional or other signs installed by the Declarant or its duly authorized agent as may be necessary or convenient for the marketing and development of the Property.
(ii) Tree Removal. No trees that are more than three and one-half (3 1/2) inches in diameter at a point two (2) feet above the ground shall be removed without the prior written consent of the ARB; provided, however, any trees, regardless of their diameter, that are located within ten (10) feet of a drainage area, a sidewalk, a residence, or a driveway or any diseased or dead trees needing to be removed to promote the growth of other trees or for safety reasons may be removed without the written consent of the ARB. The ARB may adopt or impose requirements for, or condition approval of, tree removal upon the replacement of any tree removed.
(iii) Lighting. No exterior lighting on any Lot where such lighting is visible from the street shall be permitted without the approval of the ARB.
(iv) Temporary or Detached Structures. Except as may be approved by the ARB, no temporary house, dwelling, garage or outbuilding shall be placed or erected on any Lot. No mobile home, trailer home, travel trailer, camper or recreational vehicle shall be stored, parked or otherwise allowed to be placed on a Lot as a temporary or permanent dwelling.
(v) Accessory Structures. With the approval of the ARB, detached accessory structures may be placed on a Lot to be used for a playhouse, swimming pool, tool shed, doghouse, garage or other approved use. A garage may also be an attached accessory structure. Such accessory structures shall conform in exterior design and quality to the dwelling on the Lot. With the exception of a garage that is attached to a dwelling and except as may be provided otherwise by the ARB, an accessory structure placed on a Lot shall be located only behind the dwelling as such dwelling fronts on the street abutting such Lot or in a location approved by the ARB. All accessory structures shall be located within side and rear setback lines as may be required by the ARB or applicable zoning law.
(vi) Utility Lines. Overhead utility lines, including lines for cable television, are not permitted except for temporary lines as required during construction and lines installed by or at the request of Declarant.
(vii) Mailboxes. Mail will be delivered to a central mail pavilion located on the Property.
(viii) Driveways. The Architectural Review Guidelines may establish specific locations for driveways on each Lot. Upon written request of an owner and submission of a site plan setting forth the change in a driveway location, the ARB may allow relocation of a driveway from the location set forth in the Architectural Review Guidelines if, in the ARB’s sole discretion (subject to applicable governmental ordinances, conditions and regulations), the resulting relocation will preserve the overall appearance, scheme, design, value, quality and conservation plan for the Property.
(ix) Minimum Dwelling Size. Each dwelling constructed on a Lot shall have a minimum square footage under roof of at least 1600 square feet, which includes open porches, attached and detached garages, carports or other non-living areas. Upon written request of an Owner, the ARB may waive the minimum square footage requirement if, in the ARB’s sole discretion, the resulting appearance of such residential dwelling will preserve the overall appearance, scheme, design, value and quality of the Property.
(x) Sight Distance at Intersections. All property located at street intersections or driveways shall be landscaped and improved so as to permit safe sight across such areas. No fence, wall, hedge or shrub shall be placed or permitted to remain where it would cause a traffic or sight problem.
(xi) Building Setback Lines. Except as may be approved by the ARB,
no building or portion thereof shall be located on any Lot closer than thirty (30) feet to the front property line, and not closer than ten (10) feet to any side or rear lot line. For the purposes of this covenant, any eaves, steps, stoops or entrance platforms, and ornamental planting boxes, which may be approved by the ARB, shall not be considered as part of a building; provided, however, that this shall not be construed to permit any portion of a building on any lot to encroach on, under or above any other Lot.
(xii) Natural Gas. Under separate agreement between the Declarant and The Southeast Alabama Gas District, the Gas District has agreed, at its expense, to install natural gas service lines from its mains and distribution lines to a meter for each lot in the Property (the meter to be supplied by owner). In addition, the Gas District agrees to furnish at its cost and expense, one natural gas 50 gallon tank style water heater for each such home. In return for these benefits, owner agrees to install in each of the dwellings constructed by the owner on the Property, at least one natural gas water heater, natural gas log set, and natural gas range.
(xiii) Waste Water Treatment. Declarant is constructing an on-site wastewater system (the “Wastewater System”) for the Property to provide Wastewater treatment service for all lots. Each owner shall be responsible for the costs, materials and installation of:
(i) an individual storage tank on each lot;
(ii) the service lateral line that connects the individual storage tank to the common Wastewater System line located in the right-of-way adjacent to each lot; and
(iii) piping within the dwellings to enable the provision of wastewater treatment service using the Wastewater System. All such installation shall be accomplished in accordance with the specifications for equipment and installation set forth by the system utility manager.
(xiv) Common Fences. Any fence or wall, including the posts and footings poured for the posts and columns for such fence or wall, which is constructed along the common property line of any two (2) lots shall be considered a party wall. Except as specifically provided below, the reasonable costs and expenses of maintaining, repairing, or replacing a Common Fence shall be shared equally by the o-wners of each lot on either side of the Common Fence provided, however, an owner initially constructing a Common Fence shall not be allowed to charge or recoup any cost thereof from the o-wner of the adjacent lot sharing the Common Fence. Notwithstanding the foregoing, if a Comm.on Fence is damaged or destroyed through the acts of the owner of either lot abutting the Common Fence or by such Owner’s agents, employees, servants, tenants, guests, family members, invitees, licensees or pets, whether such act is willful, negligent or accidental, then such owner shall forthwith proceed to rebuild, repair and replace the fence to as good a condition as which such Common Fence existed immediately prior to such damage or destruction without the owner of the adjoining lot having any obligation to pay any such costs or expenses. To the extent any Common Fence is damaged or destroyed by fire or other casualty, then each adjoining owner shall share equally in the costs to repair or replace the same regardless of whether insurance proceeds are available or are sufficient to pay for such restoration or repair. In the event of any disagreement between the owners of any lots on either side of a Common Fence with respect to their respective fights and obligations as to such Common Fence, then such dispute or disagreement shall be submitted to binding arbitration to the ARB (or designee thereof) whose decision shall be final, conclusive and binding upon the parties and shall be conditioned precedent to any fight of legal action that either party may have against the other with respect to the maintenance, repair and replacement of any Common Fence.
8.5 Construction Period. For the purposes of this Section, commencement of construction shall mean that
(a) all plans for such construction have been approved by the ARB;
(b) a building permit has been issued for the Lot by the appropriate governing authority; and
(c) construction of a structure has physically commenced beyond site preparation.
Completion of a structure shall mean that a certificate of occupancy has been issued by the appropriate jurisdiction for the Lot Commencement of construction on each Lot shall commence within twelve (12) months after the conveyance of such Lot by Declarant to an Owner, unless extended by Declarant in its sole and absolute discretion. After commencement of construction, each Owner shall diligently continue construction to complete such construction in a timely manner. The initial construction of all structures must be completed within twelve (12) months after commencement of construction, unless extended by the ARB in its sole discretion. All other construction shall be completed \Vl.thin the time limits, if any, established by the ARB at the time the plans for such construction are approved by the ARB.
8.6 No Waiver of Future Approvals. Approval of proposals, plans and specifications, or drawings for any work done or proposed, or in connection with any other matter requiring approval, shall not be deemed to constitute a waiver of the right to withhold approval as to any similar proposals, plans and specifications, drawings or other matters subsequently or additionally submitted for approval.
8.7 Variance. The ARB may authorize variances from compliance with any of its guidelines and procedures when circumstances such as topography, natural obstructions, hardship, or aesthetic or environmental considerations require, but only in accordance with duly adopted rules and regulations. Such variances may only be granted, however, when unique circumstances dictate, and no variance shall (a) be effective unless in writing; (b) be contrary to this Declaration; or ( c) prevent the ARB from denying a variance in other circumstances. For purposes of this Section, the inability to obtain approval of any governmental agency, the issuance of any permit or the terms of any financing shall not be considered a hardship warranting a variance.
8.8 Limitation of Liability. The standards and procedures established pursuant to this Article are intended to provide a mechanism for maintaining and enhancing the overall aesthetics of the Property only, and shall not create any duty to any Person. Review and approval of any application pursuant to this Article is made on the basis of aesthetic considerations only, and neither the Declarant, the Association, the Board nor the ARB shall bear any responsibility for ensuring the structural integrity or soundness of approved construction or modifications, the adequacy of soils or drainage, nor for ensuring compliance with building codes and other governmental requirements, and no Owner or any other Person shall be entitled to rely upon an approval for any of such purposes. Neither the Declarant, the Association, the Board, the ARB or any committee, or member of any of the foregoing shall be held liable for any injury, damages or loss arising out of the manner or quality of approved construction on or modifications to any Lot. In all matters, the committees and their members shall be defended and indemnified by the Association as provided in Section 4.5.
- The Declarant, any member of the ARB or the Board, or the representatives of each shall have the right, during reasonable hours and after reasonable notice, to enter upon any Lot to inspect for the purpose of ascertaining whether any structure or improvement is in violation of this Article. Any structure, improvement or landscaping placed or made in violation of this Article shall be deemed to be nonconforming. Upon written notice from the ARB, Owners shall, at their own cost and expense, remove such structure or improvement and restore the property to substantially the same condition as existed prior to the nonconforming work. Should an Owner fail to remove and restore the property as required, any authorized agent of Declarant, the ARB or the Board shall have the right to enter the property, remove the violation and restore the property to substantially the same condition as previously existed. Entry for such purposes and in compliance with this Section shall not constitute a trespass. In addition, the Board may enforce the decisions of the Declarant and the ARB by any means of enforcement described in Section 4.3. All costs, together with the interest at the maximum rate then allowed by law, may be assessed against the benefited Lot and collected as a Specific Assessment.
- Unless otherwise specified in writing by the ARB, all approvals granted hereunder shall be deemed conditioned upon completion of all elements of the approved work and all work previously approved with respect to the same Lot, llllless approval to modify any application has been obtained. If, after commencement, any Person fails to diligently pursue to completion all approved work, the Association shall be authorized, after notice to the Owner of the Lot to enter upon the lot and remove or complete any incomplete work and to assess all costs incurred against the Lot and the Owner thereof as a Specific Assessment.
- Neither the ARB, any member of the ARB nor the Association, the Declarant, their members, officers or directors shall be held liable to any Person for exercising the rights granted by this Article. Any contractor, subcontractor, agent, employee or other invitee of an Owner who fails to comply with the terms and provisions of this Article or the Architectural Review Guidelines may be excluded by the ARB from the Property.
- In addition to the foregoing, the Association shall have the authority and standing to pursue all legal and equitable remedies available to enforce the provisions of this Article and the decisions of the ARB.
ARTICLE 9, USE RESTRICTIONS
9.1 General. This Article sets out certain use restrictions that must be complied with
by all Owners and Owner’s Permittees. The Property shall be used only for residential and
related purposes set forth below (provided, however, that a sales office may be used by and real estate broker or agent retained by the Declarant to assist in the sale of the Property consistent with this Declaration.
9.2 Rules and Regulations. In addition to the use restrictions set forth in this Article, the Board may, from time to time, without consent of the Members, promulgat:, modify, or delete rules and regulations applicable to the Property. Such rules and regulatIons shall be
distributed to all Owners prior to the date that they are to become effective and shall thereafter be binding upon all Owners and Owner’s Permittees until and unless overruled, canceled, or modified by the Board.
9.3 Owner’s Permittees Bound. All provisions of the Declaration, Bylaws, and of any rules and regulations, use restrictions or Architectural Review Guidelines governing the conduct of Owners and establishing sanctions against Owners shall also apply to all Owner’s Permittees.
9.4 Residential Use.
- Lots may be used only for residential purposes for one (1) single family household and for ancillary business or home office uses. A business or home office use shall be considered ancillary so long as: (i) the existence or operation of the activity is not apparent or detectable by sight, sound, or smell from outside the Lot; (ii) the activity conforms to all zoning requirements for the Property; (iii) the activity does not involve regular visitation of the Lot by clients, customers, suppliers, or other invitees or door-to-door solicitation of residents of the Property; (iv) the activity does not increase traffic or include frequent deliveries within the Property; and (v) the activity is consistent with the residential character of the Property and does not constitute a nuisance, or a hazardous or offensive use, or threaten the security or safety of other residents of the Property, as may be determined in the sole discretion of the Board.
- No other business, trade, or similar activity shall be conducted upon a Lot without the prior written consent of the Board. The terms “businessu and “trade,” as used in this provision, shall be construed to have their ordinary, generally accepted meanings and shall include, without limitation, any occupation, work or activity undertaken on an ongoing basis which involves the provision of goods or services to persons other than the provider’s family and for which the provider receives a fee, compensation, or other form of consideration, regardless of whether: (i) such activity is engaged in full or part-time, (ii) such activity is intended to or does generate a profit, or (iii) a license is required. The leasing of a Lot, garage, apartment or dwelling shall not be considered a business or trade within the meaning of this Section; provided, however, all leases shall comply with the requirement of Section 9.5.
- No garage sale, moving sale, rummage sale, auction or similar activity shall be conducted upon a Lot without the prior written consent of the Board and compliance with any rules and regulations adopted by the Board.
- This Section shall not apply to any activity conducted by the Declarant with respect to its development and sale of the Property or its use of any Lots that it owns within the Property.
9.5 Leasing. Homes and/or garage apartments may be leased for residential purposes only to be occupied by one single family household. All leases shall be in writing. and shall
provide for a minimum lease term of 6 months, unless otherwise approved in writing by the Board. All leases shall require, without limitation, that the tenant acknowledge receipt of a copy
of the Declaration, Bylaws and any applicable rules and regulations of the Association. The lease shall also obligate the tenant to comply with the foregoing. The Board may require notice of any lease together with an executed copy and such additional information deemed necessary by the Board. Only the immediate family members living in the household shall have amenity rights to the common areas.
9.6 Occupancy of Unfinished Lots. No dwelling erected upon any Lot shall be occupied in any manner before commencement of construction or while in the course of construction, or at any time prior to the dwelling being fully completed.
- Automobiles and non-commercial trucks and vans shall be parked only in the garages or in the driveways on and serving the Lots unless otherwise approved by the ARB; provided, however, the Declarant and/or the Association may designate certain on-street parking areas for visitors or guests subject to reasonable rules. Commercial vehicles, vehicles primarily used or designed for commercial purposes and vehicles with commercial writings on the exterior shall be parked only in garages. No vehicle may be left upon any portion of the Property, except in a garage, if it is unlicensed or if it is in a condition such that it is incapable of being operated upon the public highways. Such vehicles shall be considered a nuisance and may be removed from the Property.
- Recreational vehicles shall be parked only in the garages serving the Lots or other hard-surfaced areas which are not visible from the street, any portion of the Common Area or any other Lot; provided, however, guests of an Owner or occupant may park a recreational vehicle on the driveway serving such Owner’s or occupant’s Lot for a period not to exceed seven (7) Days each calendar year. “Visibility” shall be determined by the ARB in its sole discretion. The term “recreational vehicles,” as used herein, shall include, without limitation, boats, “jet skis” or other watercraft, motor homes, trailers, other towed vehicles, motorcycles, mini-bikes, scooters, go-karts, golf carts, campers and all-terrain vehicles. Any recreational vehicle parked or stored in violation of this provision in excess of seven (7) Days shall be considered a nuisance and may be removed from the Property. The Declarant and/or the Association may designate certain parking areas within the Property for recreational vehicles subject to reasonable rules and fees, if any.
- Service and delivery vehicles may be parked in the Property during daylight hours for such periods ohime as are reasonably necessary to provide service or to make a delivery within the Property.
- All vehicles shall be subject to such rules and regulations as the
Board of Directors may adopt. All golf carts shall be street legal and insured by the owner.
9.8 Private Streets. The Private Streets shall be subject to the provisions of this Declaration regarding use of Common Area. Additionally, Owners of Lots and other permitted users of the Private Streets pursuant this Declaration shall be obligated to refrain from any actions which would deter from or interfere with the use and enjoyment of the Private Streets by other authorized users of the Private Streets. Prohibited activities shall include without limitation obstruction of the Private Streets and parking on the Private Streets except as permitted under the Governing Documents.
9.9 Use of Common Areas.
- The Common Area shall not be obstructed, nor shall anything be kept, parked or stored on any part of the Common Area without the prior written consent of the Association, except as specifically provided herein.
- Any Owner using a portion of the Common Area as provided herein shall assume, on behalf of the Owner and the Owner’s Permittees, all risks associated with the use of the Common Area and all liability for any damage or injury to any person or thing as a result of such use. The Association shall not be liable for any damage or injury resulting from such use unless the damage or injury is caused solely by the -willful acts or gross negligence of the Association, its agents or employees.
9.10 Animals and Pets. Dogs, cats, and other usual and common household pets shall be permitted within Lots in reasonable number, as determined by the Board. No other animals, livestock or poultry shall be permitted within the Property, and no pets shall be kept, bred or maintained for commercial purposes without prior written Board approval. All pets shall be kept on a leash and controlled by the owner of the pet whenever outside a Lot or in Common Area, and shall be kept in such a manner as to not become a nuisance by barking or other acts. The owner of the pet shall clean up all waste of the pet. The owners of the pet shall be responsible for all of the pet’s actions. If, in the sole opinion of the Board, any pet becomes dangerous or an annoyance or nuisance in the Property or to nearby property or destructive of wildlife, such pet shall be removed from the Property. By way of explanation and not limitation, this Section may be enforced by exercising the self-help rights provided in Section 4.3.
- It shall be the responsibility of each Owner to prevent the development of any unclean, unhealthy, unsightly, or unkempt condition on the Lot. No Lot shall be used, in whole or in part, for the storage of any property or thing that will cause such Lot to appear to be in an unclean or untidy condition or that will be obnoxious to the eye; nor shall any substance, thing, or material be kept that will emit foul or obnoxious odors or that will cause any noise or other condition that will or might disturb the peace, quiet, safety, comfort, or serenity of the occupants of surrounding property.
- No noxious or offensive activity shall be carried on any Lot, and nothing shall be done tending to cause embarrassment, discomfort, annoyance, or nuisance to any Person using any property within the Property. There shall not be maintained any plants or animals or device or thing of any sort whose activities or existence in any way is noxious, dangerous, unsightly, unpleasant, or of a nature as may diminish or destroy the enjoyment of the Property. Without limiting the generality of the foregoing, no speaker, horn, whistle, siren, bell, amplifier or other sound device, except such devices as may be used exclusively for security purposes or as approved by the ARB, shall be located, installed or maintained upon the extnor of any Lot unless required by law. Any siren or device for security purposes shall contam a device or system that causes it to shut off automatically.
- The reasonable and normal development, construction and sales activities conducted or permitted by the Declarant shall not be considered a nuisance or a disturbance of the quiet enjoyment of any Owner.
9.12 Storage of Materials, Garbage, Dumping, Etc.
- All garbage cans shall be located or screened so as to be concealed from view of neighboring streets and property. AU rubbish, trash, and garbage shall be regularly removed and shall not be allowed to accumulate. There shall be no dumping of grass clippings, leaves or other debris; rubbish, trash or garbage; petroleum products, fertilizers, or other potentially hazardous or toxic substances in any drainage ditch or Lake within the Property, except that fertilizers may be applied to landscaping and Lots provided care is taken to minimize runoff. No lumber, metals, bulk materials, refuse, trash or other similar materials shall be kept, stored, or allowed to accumulate outside the buildings on any Lot, except as may be permitted during any period of construction of improvements to a Lot.
- Each Owner shall maintain its Lot in a neat and orderly condition throughout initial construction of a residential dwelling and not allow trash and debris from its activities to be carried by the wind or othef’\.Vise scattered within the Property. Storage of construction materials on the Lot shall be subject to such conditions, rules, and regulations as may be set forth in the Architectural Review Guidelines and/or established by the ARB. Each Owner shall keep roadways, easements, swales, and other portions of the Property clear of silt, construction materials and trash from its activities at all times. Trash and debris during initial construction of a residential dwelling shall be contained in standard size dumpsters or other appropriate receptacles and removed regularly from Lots and shall not be buried or covered on the Lot. Any Lot on which construction is in progress may be policed prior to each weekend, and during the weekend all materials shall be neatly stacked or placed and any trash or waste materials shall be removed. In addition, Owners shall remove trash and debris from the Lot upon reasonable notice by Declarant in preparation for special events.
9.13 Combustible Liquid. There shall be no storage of gasoline, propane, heating or other fuels, except for a reasonable amount of fuel that may be stored in containers appropriate for such purpose on each Lot for emergency purposes and operation of lawnmowers, grills, and similar tools or equipment and except as may be approved in writing by the ARB. The Association shall be permitted to store fuel for operation of maintenance vehicles, generators and similar equipment.
9.14 Subdivision of Lot. The lot lines shown for each Lot on the Plat may be further modified by the Owner thereof without the approval or joinder of the Owners of any other Lots in the Plat, but such modification may be made only with the prior written approval of the ARB
and, during the Development Period, by the Declarant. In addition, no home shall be subdivided or partitioned to create housing for more than a single family. In the event of resubdivision of any Lots shown on the Plat pursuant to this provision, each tract so . constituted will be considered as and referred to as one Lot for the purpose of this Declaration and shall apply the same as if each tract had been platted as one Lot on the Plat. Any such division, boundary line change, or replatting shall not be in violation of the applicable subdivision and zoning regulations, if any. Declarant expressly reserves the right to modify and/or subdivide any Lot or Lots 0Vv11ed by Declarant without the joinder or consent of the Owners of any other Lots in the Plat.
9.15 Drainage and Grading.
- Catch basins and drainage areas are for the purpose of natural flow of water only. No improvements, obstructions or debris shall be placed in these areas. No Owner or occupant may obstruct or re-channel the drainage flows after location and installation of drainage swales, storm sewers, or storm drains.
- Except for Private Drainage Easements granted in favor of the Association pursuant to Section I 0.10, each Owner shall be responsible for maintaining all drainage areas located on its Lot. Required maintenance shall include, but not be limited to, maintaining ground cover in drainage areas and removing any accumulated debris from catch basins and drainage areas.
- Each Owner shall be responsible for controlling the natural and man-made water flow from its Lot. No Owner shall be entitled to overburden the drainage areas or drainage system within any portion of the Property \Vl.th excessive water flow from its Lot. Owners shall be responsible for all remedial acts necessary to cure any unreasonable drainage flows from Lots. Neither the Association nor the Declarant bears any responsibility for remedial actions to any Lot.
- No Person shall alter the grading of any Lot without prior approval pursuant to Article 8 of this Declaration. The Declarant hereby reserves for itself and the Association a perpetual easement across the Property for the purpose of altering drainage and water flow. The exercise of such an easement shall not materially diminish the value of or unreasonably interfere with the use of any Lot without the Owner’s consent.
9.16 Irrigation. Owners shall not install irrigation systems that draw upon ground or surface waters nor from the Lakes within the Property without the approval of the ARB. However, the Declarant and the Association shall have the right to draw water from such sources for the purpose of irrigating the Area of Common Responsibility.
9.17 Lakes. Lakes are located for drainage and storm water retention purposes and for aesthetic and scenic value. No boating, swimming or wading shall be permitted in any Lake, nor shall any structure be constructed, attached or floated upon or adjacent to the Lakes, except as permitted by the Board. Fishing shall be permitted.
9.18 Outside Uses Prohibited. No rocks, rock gardens, birdbaths, ponds or pools, lawn sculptures, artificial plantings, children’s play equipment, basketball goals, lawn furnishings, flags, flagpoles, or the like, shall be permitted except as provided in the Architectural ReV1ew Guidelines or as approved by the ARB. No vegetable, herb or similar gardens shall be planted or maintained except as approved by the ARB.
ARTICLE 10. EASEMENTS
10.1 Easements of Encroachment. Declarant reserves, creates, establishes, promulgates and declares non-exclusive, perpetual, reciprocal, appurtenant easements of encroachment, and for maintenance and use of any permitted encroachment, between adjacent Lots and between each Lot and any adjacent Common Area due to the unintentional placement or settling or shifting of the improvements constructed, reconstructed, or altered thereon (in accordance with the terms of these restrictions) to a distance of not more than three (3) feet, as measured from any point on the common boundary along a line perpendicular to such boundary. However, in no event shall an easement for encroachment exist if such encroachment occurred due to willful and knowing conduct on the part of, or with the knowledge and consent of, the Person claiming the benefit of such easement.
10.2 Easements for Utilities, Etc.
- Declarant reserves, creates, establishes, promulgates and declares non-exclusive, perpetual, reciprocal, appurtenant easements, for itself during the Development Period, for the Association, and the designees of each (which may include, without limitation, any governmental or quasi-governmental entity and any utility company) upon, across, over, and under all of the Property (but not through a structure) to the extent reasonably necessary for the purpose of installing, constructing, monitoring, replacing, repairing, maintaining, servicing, operating and removing cable, digital or similar television systems, master television antenna systems, and other devices for sending or receiving data and/or other electronic signals; security and similar systems; roads, walkways, pathways and trails; reflecting pools, ponds, streams, wetlands, and other bodies of water; irrigation, and drainage systems; street lights and signage; garbage collection; and all utilities, including, but not limited to, water, sewer, telephone, gas, and electricity, and utility meters; and an easement for access of vehicular and pedestrian traffic over, across, and through the Property, as necessary, to exercise the easements described above.
- Declarant reserves, creates, establishes, promulgates and declares for itself during the Development Period and its designees non-exclusive, perpetual, reciprocal, appurtenant easements, the non-exclusive right and power to grant such specific easements as may be necessary, in the sole discretion of Declarant, in connection with the orderly development of the Property.
- Any damage to a Lot resulting from the exercise of the easements described in this Section shall promptly be repaired by. and at the expense of, the Person exercising the easement. The exercise of these easements shall not extend to permitting entry into the structures on any Lot, nor shall it unreasonably interfere with the use of any Lot, and except in an emergency, entry onto any Lot shall be made only after reasonable notice to the Owner or occupant.
- Declarant reserves unto itself the right, in the exercise of its sole discretion, upon the request of any Person holding, or intending to hold, an interest 111 the Property, or at any other time,
(i) to release all or any portion of the Property from the burden, effect, and encumbrance of any of the easements granted or reserved under this Section, or
(ii) to define the limits of any such easements.
10.3 Easements for Development. The Declarant reserves, creates, establishes, promulgates and declares non-exclusive, perpetual, appurtenant easements for itself and its duly authorized successors and assigns, including -without limitation, successors-in-title, agents, representatives, and employees, successors, assigns, licensees, and mortgagees, an easement over the Common Area and such portions of the Lots as are necessary for the purposes of enjoyment, use, access, and development of the Property. This easement includes, but is not limited to, a right of ingress and egress over the Common Area and such portions of the Lots as are necessary for construction of roads, driveways, sidewalks, perimeter fences, walls, for the posting of signs, and for connecting and installing utilities serving the Property. Declarant agrees that it and its successors or assigns shall be responsible for any damage caused to the Common Area and any Lot as a result of development of the Property.
10.4 Easement of Entry for Security and Safety. Declarant reserves, creates, establishes, promulgates and declares non-exclusive, perpetual, appurtenant easements for the Association to enter upon any Lot for emergency, security, and safety reasons. Such right may be exercised by any member of the Board, the Association’s officers, committee members, agents, employees and managers of the Association, and by all police officers, firefighters, ambulance personnel, and similar emergency personnel in the performance of their duties. Except in emergencies, entry onto a Lot shall be only during reasonable hours and after verbal notice to the Owner. This easement includes the right to enter any Lot to cure any condition which may increase the possibility of fire, slope erosion, immediate risk of personal injury, or other hazard if an Owner fails or refuses to cure the condition within a reasonable time after request by the Board, but shall not authorize entry into any dwelling without permission of the 0-wner, except by emergency personnel acting in their official capacities. Entry under this Section shall not constitute a trespass.
10.5 Easements for Maintenance and Enforcement.
- Declarant reserves, creates, establishes, promulgates and declares non-exclusive, perpetual, appurtenant rights and easements for the Association, including the ARB, to enter all portions of the Property, including each Lot, to (i) perform its maintenance responsibilities under Article 5, and (ii) make inspections to ensure compliance with the Governing Documents. Except in emergencies, entry onto a Lot shall be only during reasonable hours. This easement shall be exercised with a minimum of interference to the quiet enjoyment to Owners’ property, and the Association shall repair any damage it causes at its expense.
- The Association, including the ARB, also may enter a Lot to abate or remove any structure, thing or condition that violates the Governing Documents, using such measures as may be reasonably necessary. All costs incurred in such action, including attorneys’ fees, may be assessed against the violator as a Specific Assessment.
- Entry under this Section shall not constitute a trespass and prior notice to the Owner shall not be required except as provided in Section 5.2.
10.6 Lateral Support. Declarant reserves, creates, establishes, promulgates and declares non-exclusive, perpetual, reciprocal, appurtenant easements over every portion of the Common Area, every Lot, and any improvement which contributes to the lateral support of another portion of the Common Area or of another Lot shall be burdened with an easement for lateral support, and each shall also have the right to lateral support which shall be appurtenant to and pass with title to such property.
10.7 Liability for Use of Easements. No Owner shall have a claim or cause of action against the Declarant, the Association, their successors or assigns, arising out of the exercise or non-exercise of any easement reserved, created, established, promulgated or declared hereunder or shown on the Plat for the Property, except in cases of willful or wanton misconduct.
ARTICLE 11. MORTGAGEE PROVISIONS
The following provisions are for the benefit of holders insurers and guarantors of first
Mortgages on Lots in the Property. The provisions of this Article apply to both this Declaration and to the Bylaws, notwithstanding any other provisions contained therein.
11.1 Notices of Action. An institutional holder, insurer, or guarantor of a first Mortgage who provides a written request to the Association (such request to state the name and address of such holder, insurer, or guarantor and the street address of the Lot to which its Mortgage relates, thereby becoming an “Eligible Holder”), will be entitled to timely -written notice of:
- Any condemnation loss or any casualty loss which affects a material portion of the Property or which affects any Lot on which there is a first Mortgage held, insured, or guaranteed by such Eligible Holder;
- Any delinquency in the payment of assessments or charges owed by a Lot subject to the Mortgage of such Eligible Holder, where such delinquency has continued for a period of sixty (60) Days, or any other violation of the Declaration or Bylaws relating to such Lot or the Owner or occupant which is not cured within sixty (60) Days;
- Any lapse, cancellation, or material modification of any insurance policy maintained by the Association; or
- Any proposed action which would require the consent of a specified percentage of Eligible Holders pursuant to Federal Home Loan Mortgage CorporatIon requirements.
11.2 No Priority. No provision of this Declaration or the Bylaws gives or shall be construed as giving any Owner or other party priority over any rights of the first Mortgagee of any Lot in the case of distribution to such Owner of insurance proceeds or condemnatIon awards for losses to or a taking of the Common Area.
11.3 Notice to Association. Upon request, each Owner shall be obligated to furnish to
the Association the name and address of the holder of any Mortgage encumbering such Owner’s Lot.
11.4 Failure of Mortgagee to Respond. Any Mortgagee who receives a written request from the Board to respond to or consent to any action shall be deemed to have approved such action if the Association does not receive a written response from the Mortgagee within thirty (30) Days of the date of the Association’s request, provided such request is delivered to the Mortgagee by certified or registered mail, return receipt requested.
11.5 Construction of Article 11. Nothing contained in this Article shall be construed to reduce the percentage vote that must otherwise be obtained under the Declaration, Bylaws, or Alabama law for any of the acts set out in this Article.
ARTICLE 12. DECLARANT’S RIGHTS
12.1 Transfer or Assignment. Any or all of the special rights and obligations of the Declarant set forth in the Governing Documents may be transferred or assigned in whole or in part to the Association or to other Persons, provided that the transfer shall not reduce an obligation nor enlarge a right beyond that which the Declarant has under this Declaration or the Bylaws. Upon any such transfer, the Declarant shall be automatically released from any and all liability arising with respect to such transferred rights and obligations. No such transfer or assignment shall be effective unless it is in a written instrument signed by the Declarant and duly recorded in the Public Records.
12.2 Development and Sales.
- The Declarant may maintain and carry out on the Property such activities as, in the sole opinion of the Declarant, may be reasonably required, convenient, or incidental to the development of the Property and/or the construction or sale of Lots, such as sales activities and promotional events, and restrict Members from using the Common Area during such activities. Such activities shall be conducted in a manner to minimize (to the extent reasonably possible) any substantial interference with the Members’ use and enjoyment of the Common Area. In the event that any such activity necessitates exclusion of Owners from Common Areas, such activities shall not exceed seven (7) consecutive Days. The Declarant shall have easements over the Property for access, ingress and conducting such activities.
- In addition, the Declarant may establish within the Property, such facilities as, in the sole opinion of the Declarant, may be reasonably required, convenient, or incidental to the development of the Property and/or the construction or sale of Lots, including, but not limited to, business offices, signs, model units, tents, sales offices, sales centers and related parking facilities. During the Development Period, Ovmers may be excluded from use of all or a portion of such facilities in the Declarant’s sole discretion. The Declarant shall have easements over the Property for access, ingress, and egress and use of such facilities.
- Declarant may permit the use of any facilities situated on the Common Area by Persons other than Owners ‘Without the payment of any use fees.
12.3 Improvements to Property. The Declarant and its employees, agents, designees,
successors and assigns shall have the following rights and easements:
- Over and upon all of the Common Area for the purpose of making, constructing and installing such improvements to the Common Area as it deems appropriate in its sole discretion;
- Over and upon each and every Lot, the boundary line or lines of which form a portion of the perimeter of the Property for the purpose of constructing and installing a fence or wall along all or a portion of the perimeter of the Property, if deemed appropriate by the Declarant, in its sole discretion. All Owners acknowledge that if the Declarant constructs a fence or wall along all or a portion of the perimeter of the Property, such fence or wall may be built in phases.
- Over and upon the Common Area and such portions of the Lots as are necessary for the purposes of development of the Property. This easement includes, but is not limited to, a right of ingress and egress over the Common Area and such portions of the Lots as are necessary for construction of gated entry features, landscaping, roads, driveways, parks, sidewalks, walking trails, for the posting of signs, and for connecting and installing utilities serving the Property.
12.4 Additional Covenants. During the Development Period, no Person shall record any declaration of covenants, conditions and restrictions, easements, or similar instrument affecting any portion of the Property without Declarant’s review and written consent. Any attempted recordation without such consent shall result in such instrument being void and of no force and effect unless subsequently approved by written consent signed by the Declarant and recorded in the Public Records.
12.5 Amendments. Notwithstanding any contrary provision of this Declaration, during the Development Period, no amendment to or modification of any use restrictions and rules or Architectural Review Guidelines shall be effective without prior notice to and the written consent of the Declarant. This Article may not be amended without the written consent of the Declarant. The rights contained in this Article shall terminate upon the earlier of (a) ten (10) years from the date this Declaration is recorded, or (b) upon recording by Declarant of a written statement releasing the rights set forth hereunder.
ARTICLE 13, GENERAL PROVISIONS
13.1 Duration. Unless otherwise provided by Alabama law, this Declaration may be terminated within the first twenty (20) years after the date of recording by an instrument signed by Owners of at least ninety percent (90%) of the total Lots within the Property, which instrument is recorded in the Public Records; provided however, regardless of the provisions of Alabama law, this Declaration may not be terminated during the Development Period without the prior written consent of the Declarant. After twenty (20) years from the date of recording, this Declaration may be terminated only by an instrument signed by Owners owning at least fifty-one percent (51 %) of the Lots and constituting at least fifty-one percent (51 %) of the total number of Owners, and by the Declarant, if the Declarant owns any portion of the Property, and is recorded in the Public Records. Nothing in this Section shall be construed to permit termination of any easement created in this Declaration without the consent of the holder of such easement.
- By Declarant. During the Development Period, Declarant may unilaterally amend this Declaration for any purpose. Thereafter, the Declarant may unilaterally amend this Declaration at any time and from time to time if such amendment is necessary (i) to bring any provision into compliance with any applicable governmental statute, rule, regulation, or judicial determination; (ii) to enable any reputable title insurance company to issue title insurance coverage on the Lots; (iii) to enable any institutional or governmental lender, purchaser, insurer or guarantor of Mortgage loans, including, for example, the Federal National Mortgage Association or Federal Home Loan Mortgage Corporation, to make, purchase, insure or guarantee Mortgage loans on the Lots; or (iv) to satisfy the requirements of any local, state or federal governmental agency. However, any such amendment shall not adversely affect the title to any Lot unless the Owner shall consent thereto in writing. In addition, during the Development Period, Declarant may unilaterally amend this Declaration for any other purpose, provided the amendment has no material adverse effect upon any right of any Owner.
- By Owners. Except as otherwise specifically provided above and elsewhere in this Declaration, after the Development Period, this Declaration may be amended by written consent of sixty-seven percent (67%) of the Owners of Lots. Notwithstanding the foregoing, the percentage of votes necessary to amend a specific clause shall not be less than the prescribed percentage of affirmative votes required for action to be taken under that clause.
- Validity and Effective Date. Any amendment to the Declaration shall become effective upon recordation in the Public Records, unless a later effective date is specified in the amendment. Any procedural challenge to an amendment must be made within six ( 6) months of its recordation or such amendment shall be presumed to have been validly adopted. In no event shall a change of conditions or circumstances operate to amend any provisions of this Declaration. No amendment may remove, revoke, or modify any right or privilege of the Declarant. as Declarant. No amendment may remove, revoke, or modify any right or privilege of the Declarant, as Declarant, or as the Class B Member, without the written consent of the Declarant or the assignee of such right or privilege.
- Consent by Owner. If an Owner consents to any amendment to this Declaration or the Bylaws, the conclusive presumption shall be that such Owner has the authority to consent, and no contrary provision in any Mortgage or contract between the Owner and a third party will affect the validity of such amendment.
13.3 Severability. Invalidation of any provision of this Declaration, in whole or in part, or any application of a provision of this Declaration by judgment or court order shall in no way affect other provisions or applications.
13.4 Non-Merger. Notwithstanding the fact that Declarant is the current owner of the Property, the express intention of Declarant is that the easements established in the Declaration for the benefit of the Property and Owners shall not merge into the fee simple estate of individual Lots conveyed by Declarant or its successor, but that the estates of the Declarant and individual Lot Owners shall remain as separate and distinct estates. Any conveyance of all or a portion of the Property shall be subject to the terms and provisions of this Declaration, regardless of whether the instrument of conveyance refers to this Declaration.
13.5 Grants. The parties hereby declare that this Declaration, and the easements created herein shall be and constitute covenants running with the fee simple estate of the Property. The grants of easements in this Declaration are independent of any covenants and contractual agreements undertaken by the parties in this Declaration and a breach by either party of any such covenants or contractual agreements shall not cause or result in a forfeiture or reversion of the easements granted in this Declaration.
13.6 Cumulative Effect: Conflict. The provisions of this Declaration shall be cumulative with any additional covenants, restrictions, and declarations, and the Association may, but shall not be required to, enforce such additional covenants, conditions, and provisions. In the event of a conflict between or among this Declaration and such covenants or restrictions, and/or the provisions of any articles of incorporation, Bylaws, rules and regulations, policies, or practices adopted or carried out pursuant thereto, this Declaration, the Bylaws, Articles, and use restrictions and rules of the Association shall prevail; provided however, nothing in this Section shall preclude any other recorded declaration, covenants and restrictions applicable to any portion of the Property from containing additional restrictions or provisions which are more restrictive than the provisions of this Declaration, and the Association shall have the standing and authority to enforce the same. The foregoing priorities shall apply, but not be limited to, the lien for Assessments created in favor of the Association.
13.7 Use of the Word “The Orchards”. No Person shall use the word “The Orchards” or any derivative in any printed or electronic social media promotional material without the Declarant’s prior written consent. However, Owners may use the words “The Orchards” in printed or promotional matter where such terms are used solely to specify that particular property is located within The Orchards and the Association shall be entitled to use the words ” The Orchards ” in its name.
13.8 Compliance. Every Owner of any Lot shall comply with the Governing Documents. Failure to comply shall be grounds for an action by the Association or by any aggrieved Owner(s) to recover sums due, for damages or injunctive relief, or for any other remedy available at law or in equity, in addition to those enforcement powers granted to the Association in Section 4.3.
13.9 Joinder by Association. The Association joins in and agrees to the provisions of
this Declaration, including, but not limited to, the provisions of Article 10 of this Declaration.
13.10 Exhibit. Exhibit A attached to this Declaration is incorporated by this reference.
13.11 No Common Scheme. Notwithstanding anything to the contrary provided herein, it is understood and agreed that the covenants and restrictions imposed hereunder shall not be deemed to create a common scheme or to restrict any other property now or heretofore or hereafter owned by The Declarant other than the lots shown on a Plat which are made subject to this Declaration by the execution, acknowledgment and recordation of this Declaration. In no event shall The Declarant be required to subject additional property to this Declaration or otherwise acquire additional property in connection herewith; provided, that, The Declarant may by amendment hereunder subject additional property to this Declaration.
The Orchards Homeowners’ Association, Inc., an Alabama non-profit corporation
STATE OF ALABAMA ) COUNTY OF MONTGOMERY )
I, the undersigned, a Notary Public in and for said County in said State, hereby certify that Trent Smith Newell, whose name as Secretary of The Orchards Homeowners’ Association, Inc., an Alabama corporation, is signed to the foregoing instrument and who is known to me, acknowledged before me on this day that, being informed of the contents of the instrument, he, as such Secretary, and with full authority, executed the same voluntarily for and as the act of said corporation.
Given under my hand this the 31 day of March, 2015.
This instrument was prepared by: James E. Johnston, Esq.
4265 Lomac Street Montgomery, AL 36106
IN WITNESS WHEREOF, the Declarant, joined in by the Association, has executed this Declaration this 10th day of March, 2015.
I, the undersigned, a Notary Public in and for said County in said State, hereby certify that Christopher Lee Newell, whose name as President of NRB Developers, Inc., an Alabama corporation, is signed to the foregoing instrument and who is known to me, acknowledged before me on this day that, being informed of the contents of the instrument, he, as such an Officer, and with full authority executed the same voluntarily for and as the act of said corporation.
Given under my hand this the 31 day of March, 2015.
COMMENCE AT A CONCRETE MONUMENT FOUND AT TilE SOUTHWEST CORNER OF
SECTION 26, TOWNSHIP I6 NORTH, RANGE 20 EAST, MONTGOMERY COUNTY, ALABAMA; THENCE RUN ALONG THE \VEST BOUNDARY LINE OF SAID SECTION N00″57’22″W A
DISTANCE OF 764.32 FEET TO AN IRON PIN; THENCE LEAVING SAID SECTION LINE, RUN S89°30’45″E, A DISTANCE OF 506.03 FEET TO AN IRON PIN, SAID IRON PIN BEING THE
POINT OF BEGINNING; THENCE, FROM SAID POINT OF BEGINNING, RUN THE FOLLOWING NINE (9) COURSES AND DISTANCES: N00°1 ! ’42″E, 1137.42 FEET TO AN IRON PIN,
S89″47’4l”E, 233.56 FEET TO AN IRON PIN, S89°48’50″E, 272.32 FEET TO AN !RON PIN,
S03°12’29″E, 376.69 FEET TO AN IRON PIN, N84°30’52″E, 483.37 FEET TO AN IRON PIN,
N89″11’23″E, 418.37 FEET TO AN IRON PIN, N89°2I’38″E, 370.69 FEET TO AN IRON PIN,
S00°12’48″E, 778.70 FEET TO AN IRON PIN, S01°10’20″E, 705.38 FEET TO AN IRON PIN FOUND ON THE NORTHERN EDGE OF THE LIMITS OF OKFUSKI TRAIL (60 FEET RIGHT OF WAY WIDTH); THENCE RUN ALONG SAID NORTHERN EDGE S88°44’58″W, A DISTANCE OF
550.14 FEET TO AN IRON PIN; THENCE CONTINUE ALONG SAID NORTHER,’! EDGE
N86°18’25″W, A DISTANCE OF 242.13 FEET TO AN IRON PIN; THENCE, LEAVING SAID
NORTHERN EDGE, RUN THE FOLLOWING FIVE (5) COURSES AND DISTANCES:
N00°24’0l”W, 391.12 FEET TO AN IRON PIN, N00°23’36″W, 279.63 FEET TO AN !RON PIN,
S89°10’16″W, 485.97 FEET TO AN IRON PIN, N89°46’18″W, 309.08 FEET TO AN IRON PIN,
S89°53’15″W, 227.03 FEET TO THE POINT OF BEGINNING.
LESS AND EXCEPT AN 1.80 ACRE ROADWAY PARCEL DESCRIBED AS FOLLOWS:
COMMENCE AT A CONCRETE MONUMENT FOUND AT THE SOUTHWEST CORNER OF
SECTION 26, TOWNSHIP 16 NORTH, RANGE 20 EAST, MONTGOMERY COUNTY, ALABAMA; THENCE RUN ALONG THE WEST BOUNDARY LINE OF SAID SECTION N00°57’22″W, A
DISTANCE OF 764.32 FEET TO AN !RON PIN; THENCE LEAVING SAID SECTION LINE, RUN S89’30’45″E, A DISTANCE OF 506.03 FEET TO AN IRON PIN; THENCE RUN N00°l l ’42″E, A DISTANCE OF 1137.42 FEET TO AN IRON PIN; THENCE RUN S89°47’41″E, A DISTANCE OF 233.56 FEET TO AN IRON PIN; THENCE RUN S89°48’50″E, A DISTANCE OF 272.32 FEET TO AN IRON PIN; THENCE RUN S03°12’29″E, A DISTANCE OF 376.69 FEET TO AN IRON PIN;
THENCE RUN N84°30’52″E, A DISTANCE OF 483.37 FEET TO AN IRON PIN; THENCE RUN
N89°I 1 ’23″E, A DISTAJ”‘!CE OF 418.37 FEET TO AN IRON PIN; THENCE RUN N89°21 ’38″E, A DISTANCE OF 68.68 FEET TO A POINT, POINT BEING TilE BEGINNING OF A CENTERLINE OF A FIFTY FEET IN WIDTH ROADWAY PARCEL OF LAND, ROADWAY LYING TWENTY
FIVE FEET IN WIDTH BOTH DIRECTIONS FROM DESCRIBED CENTERLINE; THENCE, RUN TilE FOLLOWING FIVE (5) COURSES AND DISTANCES: S00°00’00″W, 36.03 FEET TO A
POINT, ALONG A CURVE (CONCA VE WESTERLY) WITH A RADIUS OF 300.00 FEET, CHORD DIRECTION SI5°04″4I”W, CHORD DISTANCE 156.08 FEET TO A POINT, S30°09’22″W, 454.15 FEET TO A POINT, ALONG A CURVE (CONCAVE EASTERLY) WlTH A RADIUS OF 400.00
FEET, CHORD DIRECTION Sl4°39’44″W, CHORD DISTANCE 213.71 FEET TO A POINT,
S00°49’54″E, 701.17 FEET TO THE TERMINUS POINT OF SAID FIFTY FEET IN WIDTH
ROADWAY PARCEL, SAID TERMINUS POINT LYING ON THE NORTHERN EDGE OF THE
LIMITS OF OKFUSKI TRAIL.
SAID PARCEL OF LAND IS LYING AND BEING SITUATED IN THE SOUTHWEST QUARTER OF SECTION 26, TOWNSHJP 16 NORTH, RANGE 20 EAST MONTGOMERY COUNTY,
ALABAMA AND CONTAINS 47.41 ACRES MORE OR LESS.
ii iii i illil ii i iiii ii iiill I llll I Iii INDEX $5.00
STATE OF ALA-MONTGOMERY CO. REC FEE $102.50
I CERTIFY THIS INSTRUMENT WAS FILED ON CERT $1.00
RLPY 04683 PG 0721-0761 2015 Apr 1410:SBAM CHECK TOTAL 238101 $ 108,50
STEVEN L REED CLERK # 101 11:18 AM
FIRST AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR THE ORCHARDS PLAT NO. IA
This First Amendment to Declaration of Covenants, Conditions, Restrictions and Easements for The Orchards Plat No. IA is made as of the 2nd day of November, 2018, by its Declarant NRB Properties, Inc., an Alabaa corporation.
WHEREAS, the Declaration of Covenants, Conditions, Restrictions and Easements for The Orchards Plat No. lA are recorded in Real Property Book 4683, at Page 0721-0761, in the Office of the Judge of Probate of Montgomery County, Alabama;
WHEREAS, NRB Properties, Inc., as the Declarant set forth therein, wishes to amend said Covenants, Conditions, Restrictions and Easements in accordance with Paragraph 13.2 of the document;
NOW, THEREFORE, the said Declarant agrees to and adopts the following changes to said Covenants, Conditions, Restrictions and Easements:
- Paragraph 7.2(a) is hereby amended to change the payment schedule for the semi-annual HOA Assessments installments due dates to May I and November 1 of each year.
- Paragraph 9.7(d) is hereby amended to include the following language: “No golf carts are allowed on any sidewalks or green spaces. The minimum age to drive a golf cart in the neighborhood is 16.”
- Paragraph 9 .10 is hereby amended to include the following language: “No pets are allowed to be left outside and unattended unless confined by a fence.”
- Pursuant to Paragraph 2.l(c) the following rules apply to the Pool and Pavilion area:
- Pavilion rentals are available Monday-Thursday \”ith exception to Holidays;
- There is a 2 hour time limit for Pavilion rentals;
- Pavilions may be rented a total of 4 times per year, 2 times per week and once per day.
- You must be 16 or older to use the pool/pavilion if unattended by a parent or guardian.
IN WITNESS \VHEREOF, the Declarant has executed this First Amendment to Declaration of Covenants, Conditions, Restrictions and Easements for The Orchards Plat No. l A this 2nd day of November, 2018.
NRB Developers, Inc. an Alabama corporation
By Its President:
STATE OF ALABAMA
I, the undersigned, a Notary Public in and for said County in said State, hereby certify that· Christopher Lee Newell, whose name as President of NRB Developers, Inc., an Alabama corporation, is signed to the foregoing instrument and who is known to me, acknowledged before me on this day that, being informed of the contents of the instrument, he, as such Officer, and with full authority, executed the same voluntarily for and as the act of said corporation.
Given under my hand this the 2nd day of November, 2018.
My commission expires: June 23, 2020
STATE OF ALA. o.AONTGOMERY CO.
I CERTIFY THS INSTRUMENT WAS FILED ON
RLPY05217 PG069e-0699 2019¾,1 0511:42AM
STEVEN L. REED
JUDGE OF PROBATE
REC FEE $5.00
E-RECORDED 338800Clerk: #102 12:0BPM