Prepared by/Return to :
William E. Shannon Esq.
4500 PGA Boulevard Suite 400
Palm Beach Gardens, Florida 33418
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR
THE ISLAND AT ABACOA
THIS DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS, is made this 21st day of July, 1999, by ABACOA HOMES, INC., a Florida corporation, ("Developer"), and by the THE ISLAND AT ABACOA HOMEOWNERS INC., a Florida corporation not-for-profit, ("Association"),
Developer is the owner of the real property described in Exhibit "A" attached to this Declaration, and incorporated into this Declaration by reference. The Developer intends by this Declaration to impose restrictions upon certain properties under a general plan of development to mutually benefit all owners of residential properties within the restricted property. The Developer desires to provide a flexible, manageable, and reasonable procedure for the overall development of the restricted property, and to establish a method for the administration, maintenance, preservation, use, and enjoyment of the restricted property.
Developer declares that the property restricted by this Declaration and any additional property which may be subjected to this Declaration by a subsequent amendment shall be held, sold, and conveyed subject to the following easements, restrictions, covenants, and conditions which are for the purpose of protecting the value and desirability of, and which shall run with, the real property subjected to this Declaration. The easements, covenants, conditions and restrictions found in this Declaration shall be binding on all persons or entities, and their heirs, successors, and assigns, having any right, title, or interest in the property subjected to this Declaration.
ARTICLE I
DEFINITIONS
"Abacoa" shall mean and refer to the Development of
Regional Impact of the same name located in the Town of Jupiter, Palm Beach
County, Florida.
"Abacoa By-Laws" shall mean and refer to the By-Laws of the
Abacoa Property Owners' Assembly, Inc.
"Abacoa Declaration of Covenants, Conditions and
Restrictions" shall mean and refer to that certain declaration of covenants,
conditions, and restrictions, and all exhibits thereto recorded in Official
Record Book 9739, Page 1629, Public Records of Palm Beach County, Florida and
as hereafter amended. It may also be referred to as the "Abacoa Declaration".
"Abacoa Development Company" shall mean and refer to that
certain Delaware corporation, its successors and assigns, which was the
declarant of the Abacoa Declaration of Covenants, Conditions and Restrictions.
It may also be referred to as the "Abacoa Developer".
"Abacoa Property Owners' Assembly, Inc." ("Abacoa POA")
shall mean and refer to the Florida not for profit corporation, which provides
certain community-wide services to Abacoa.
"Articles" shall mean the Articles of Incorporation of the
Association (hereinafter defined). A true and correct copy of the Articles is
attached hereto, made a part hereof, and marked Exhibit "B".
"Assessment" means a share of the funds which are required
for the payment of Association Expenses, which from time to time is assessed
against the Members (hereinafter defined) of the Association. The term,
"Assessment" may from time to time also refer to Special Assessments (defined
herein) and Default Assessments (defined herein) wherever the context
requires.
"Association" shall mean and refer to The Island at Abacoa
Homeowners Association, Inc., a Florida corporation not-for-profit, its
successors and assigns.
"Association Expenses" shall mean and include the actual
and estimated expenses of operating the Association, and the Abacoa POA,
including any reasonable reserve, all as may be found to be necessary and
appropriate by the Board, and by the Abacoa POA, where appropriate, pursuant
to the Homeowners Documents (hereinafter defined).
"Association Property" shall mean all real and personal
property transferred to the Association for the benefit of all Members
(hereinafter defined).
"Board" shall mean the Board of Directors of the
Association.
"By-Laws" shall mean and refer to the By-Laws of the
Association, attached hereto, made a part hereof, and marked Exhibit "C".
"Common Area" shall mean those areas of real property shown
on the Plat of The Island at Abacoa (hereinafter defined), together with all
improvements thereto, which are devoted to the common use and enjoyment of the
Members of the Association. The term "Common Area" may sometimes be used
interchangeably with the term "Association Property". The common area shall
consist of:
All portions of the Property (hereinafter defined), which
are submitted to this Declaration, and are dedicated to the Association,
that are not Lots or Units;
All portions of the Property which are submitted to this
Declaration, and that are not dedicated to any governmental entity or to the
public for a public use, if any.
"Community-Wide Standard" shall mean the standard of
conduct, maintenance, or other activity generally prevailing throughout the
Properties. Such standard may be reasonably and more specifically determined
by the Board, but shall always be, at a minimum, in conformance with and
consistent with those standards established by the Abacoa POA.
"Declaration" shall mean the easements, covenants,
conditions, restrictions, and all other terms set forth in this document, and
as may be amended from time to time.
"Developer" shall mean and refer to Abacoa Homes, Inc., a
Florida corporation, its successors and assigns.
"Development(s)" shall mean and refer to such residential
or commercial developments which are now or hereafter located within Abacoa.
"General Plan of Development" shall mean that portion of
the Plat of The Island at Abacoa dedicated to the Association or submitted to
this Declaration, initially or by Subsequent Amendment (hereinafter defined),
as approved by the appropriate governmental agencies, and which shall
represent the development plan and general uses of the Property.
"Homeowners Documents" means in the aggregate this
Declaration, the Articles, the By-Laws of the Association, the Rules and
Regulations of the Association as well as the Abacoa Declaration, the Articles
of Incorporation of the Abacoa POA, the By-Laws of the Abacoa POA, the Limited
Warranty, the typical form of Special Warranty Deed, the form of Contract for
Purchase and Sale, the Property Plan or Site Plan for The Island, the Escrow
Agreement, and all of the instruments and amendments to same executed in
connection with the General Plan of Development.
"Institutional Mortgagee" shall mean any lending
institution having a first lien on any property subject to this Declaration,
including any of the following institutions: an insurance company or
subsidiary thereof, a federal or state savings and loan association, a federal
or state building and loan association, the Federal National Mortgage
Association, the Federal Home Loan Mortgage Corporation, a federal or state
banking association, the Palm Beach County Housing Authority or similar
entity, a real estate investment trust, or any mortgage banking company
authorized to do business in the State of Florida.
"Lot" shall mean tract of land located within the Property
which is intended for use as a site for a Unit.
"Member" shall mean a member of the Association.
"Municipality" shall mean and refer to the Town of Jupiter,
Florida.
"NPBCID" shall mean and refer to the Northern Palm Beach
County Improvement District, a political subdivision of the State of Florida,
357 Hiatt Drive, Palm Beach Gardens, Florida, having jurisdiction over its
Units of Development 9, 9A, 9B, 28, and any future additional legally formed
units of development within Abacoa.
"NPBCID Plan of Improvements" shall mean or refer to any
Plan adopted by NPBCID for the management, maintenance, installation, and/or
construction of public infrastructure improvements within Abacoa.
"NPBCID Assessments" shall mean and refer to any legally
authorized non-ad valorem assessments levied by NPBCID to pay for the cost of
the management, maintenance, installation, and/or construction of public
infrastructure improvements pursuant to a NPBCID Plan of Improvements.
"NPBCID Unit of Development" means that area lying within a
specific geographical area that has been created by NPBCID as a distinct and
separate area for implementation of NPBCID public infrastructure improvements.
"Occupant" shall mean the occupant of a Unit who shall be
the owner, the lessee, or their respective guest(s).
"Owner" shall mean and refer to one (1) or more Persons
(defined below) who hold the record title to any Lot which is created on the
Property, but excluding any party holding an interest merely as security for
the performance of an obligation.
"Person" means a natural person, a corporation, a
partnership, a trustee, or other legal entity.
"Property" or "Properties" shall mean all of the real and
personal property submitted to this Declaration. The real property initially
submitted to this Declaration is described in Exhibit A.
"Roads" shall mean and refer to any street or thoroughfare
which is constructed by the Developer within the Common Areas, and which is
dedicated to the Municipality or the Association, whether same is designated,
for example, by way of illustration and not as limitation, as a street,
avenue, boulevard, drive, place, court, road, terrace, way, circle, lane,
alley or similar designation.
"Rules and Regulations" shall mean the rules, regulations,
and policies which are attached hereto, made a part hereof, and marked Exhibit
"D", and as may be adopted by the Board from time to time by resolution or
motion carried.
"Single Family" means one person or a group of two or more
persons living together and interrelated by bonds of consanguinity, marriage,
or legal foster care, guardianship, or adoption; or not more than two persons
living together who may or may not be interrelated.
"Subsequent Amendment" shall mean an amendment to this
Declaration which subjects additional property to this Declaration, or which
withdraws property previously submitted to this Declaration. Such Subsequent
Amendment may, but is not required to, impose, expressly or by reference,
additional restrictions and obligations on any land submitted by a Subsequent
Amendment to the provisions of this Declaration.
"The Island at Abacoa Homeowners Association, Inc." shall
man that certain entity created to maintain, manage, and control the Common
Areas. It shall be referred to as the "Association", but it may also be
referred to as the "Homeowners Association" or HOA".
"Transfer Date" shall mean the date that the Developer
relinquishes the right to appoint all of the Directors to the Board, and
conveys legal title to the Common Area to the Association. The transfer date
shall occur no later than 120 days after the Developer has conveyed to Members
all of the Lots or Units contemplated by the General Plan of Development, or
after the Developer elects to relinquish its control of the Association,
whichever shall first occur.
"Unit" shall mean a finished portion of the Properties, for
which a certificate of occupancy has been issued by the appropriate
jurisdiction and which is intended for use and occupancy as a detached or
attached residence for a Single Family. A Unit may also be referred to as a
"Townhouse Unit" or a "Single Family home".
"Water Management System (Primary)" shall mean and refer to
those lakes, canals, green ways, and other facilities created, owned, and/or
used by NPBCID for the drainage of surface waters within Abacoa, and as
identified in the NPBCID Plan of Improvements for Units of Development 9A and
9B, and shown on or described in the South Florida Water Management District
Conceptual Surface Water Management Permit, as amended from time to time.
"Water Management System (Secondary)" shall mean and refer to those Road curbs, catch basins, easements, pipes, and other facilities installed or constructed by the Developer for the use and ownership of the Association.
ARTICLE II
PROPERTY SUBJECT TO THIS DECLARATION
Use of Property. Every Owner's use of the Property
shall be in compliance with all laws, ordinances, regulations, and orders,
including, without limitation, the following:
Development Order. All terms, conditions, and
provisions of the Abacoa Development of Regional Impact ("DRI") Development
Order adopted by the Town of Jupiter in Resolution 9-95 effective June 6,
1995, and as amended from time to time, but including no change which would
modify the responsibilities of the Association hereunder, or which would
modify the general plan of development after construction of the Units.
Mixed Use Development Model Ordinance. The Abacoa
Mixed Use Development Model Ordinance passed by the Town of Jupiter as
Ordinance #1-95 effective June 1, 1995, and as amended from time to time,
but including no change which would modify the responsibilities of the
Association hereunder, or which would modify the general plan of development
after construction of the Units.
NPBCID Bonds. All terms and conditions of the
NPBCID Water Control and Improvement Bonds for Unit of Development No. 9A,
Series 1996A and Series 1996B dated August 1, 1996; and such other bonds as
may be issued in connection with Units of Development 9, 9B, and 28.
Abacoa Declaration of Covenants, Conditions and
Restrictions. All terms, conditions, covenants, conditions, and
restrictions set forth in the Abacoa Declaration of Covenants, Conditions
and Restrictions recorded April 10, 1997 in Official Record Book 9739 at
Page 1629 of the public records of Palm Beach County, Florida, and as
amended by that certain Declaration of Annexation recorded April 10, 1997 in
Official Record Book 9739 at Page 1737 of the public records of Palm Beach
County, Florida, and as amended from time to time.
Initial Property. The Property which is subject to
the easements, covenants, conditions, and restrictions imposed by this
Declaration is described in Exhibit A.
Additional Property. The Developer may subject
additional property to this Declaration, including without limitation,
residential property, Common Areas, Roads, and properties of all types,
including undeveloped lands and platted subdivisions, and lots by recording in
the public records of the County a Subsequent Amendment to this Declaration
setting forth any use restrictions, voting rights, maintenance requirements,
user fees, dues, or other provisions pertaining to such additional property.
Despite the fact that Developer's submission of additional property to this
Declaration may result in an overall increase in the Association Expenses, and
a resulting increase in the Assessments payable by each Unit, or may result in
an increase in the total number of votes or Members in the Association, the
Developer shall not be required to obtain the joinder or consent of the
Association, any Unit Owner, any other Person (except for the approval, if
required, by the Abacoa POA, the Abacoa Developer, and governmental
authorities), or any mortgagee of any Unit. Any property submitted to this
Declaration by Subsequent Amendment, shall be included in the term "Property".
Likewise, the Developer reserves the right to withdraw any portion of the
Property from the restrictions, covenants, and conditions of this Declaration,
including, without limitation, any residential property, Roads, Common Areas
or other areas that may have been submitted initially by this Declaration or
by a Subsequent Amendment, and the Developer shall not be required to obtain
the joinder or consent of the Association, any Unit Owner, any other Person
(except for the approval, if required, by the Abacoa POA, the Abacoa
Developer, and governmental authorities), or any mortgagee of any Unit. The
Developer shall have such rights until the Transfer Date. The Developer's
right to withdraw any portion of the Property shall not be applicable to any
portion of the Property that has been conveyed to an Owner.
Phasing. If sales response warrants the development, it is the intention of the Developer to develop the Units in two (2) phases. Development of the initial phase shall be commenced within 90 days of the recording of this Declaration in the public records of the County. Developer reserves the right to modify the architectural appearance, dimensions, and site plan for The Island at Abacoa. Developer's right to modify the architectural appearance, dimensions, and site plan shall not require the consent of any other person or entity, except for approval, if required, by the Abacoa POA, the Abacoa Developer, and governmental authorities.
ARTICLE III
PROPERTY RIGHTS
Use of Common Area. Every Owner shall have a right
and easement of enjoyment in and to the Common Area, subject to this
Declaration as it may be amended from time to time, and subject to any
restrictions or limitations contained in any deed conveying such property to
the Association. Any Owner may delegate his or her right of enjoyment to the
members of his or her Single Family, tenants, and social invitees subject to
reasonable regulation by the Board, and in accordance with procedures which it
may adopt. An Owner who leases his or her Unit shall be deemed to have
delegated all such rights to the Unit's lessee. The rights and easements of
enjoyment created hereby shall be subject to the following:
Right to Borrow Money. The right of the
Association to borrow money for the purpose of improving the Common Area
and, in connection therewith, to mortgage the Common Area.
Protect Against Foreclosure or Imminent Danger.
The right of the Association to take such steps as are reasonably necessary
to protect the Common Area against foreclosure or an imminent danger.
Suspension of Rights.
The right of the Association to suspend the enjoyment
rights and easements of any Owner for any period during which an
Assessment remains unpaid by that owner.
The right of the Association to suspend the enjoyment
rights and easements of any Owner for any period during which such Owner
is in violation of this Declaration, the Abacoa Declaration, any of the
rules and regulations promulgated by the Association or the Abacoa POA, or
any of the traffic regulations of the Association or the Abacoa POA.
Maintenance. The right of the Association to
maintain the Common Area.
Rules and Regulations. Rules and regulations
governing the use and enjoyment of the Common Area, as promulgated by the
Association or the Abacoa POA.
Traffic Regulations. Traffic regulations governing
the use and enjoyment of the alleys, as promulgated by the Association or
the Abacoa POA. Traffic regulations governing the use and enjoyment of the
Roads shall be as promulgated by the Municipality or the Association.
Dedications. The right of the Association to
dedicate or transfer all, or any part, of the Common Area to any
governmental or quasi-governmental agency, authority, utility, water
management or improvement district.
Plat Restrictions. Restrictions contained on any
plat, or filed separately, with respect to all or any portion of the
Property.
Declaration. All of the provisions of this
Declaration, the Articles of Incorporation and By-Laws of the Association
and all exhibits thereto, and all Rules and Regulations adopted by the
Association, as same may be amended from time to time.
Abacoa Declaration. All of the provisions of the
Abacoa Declaration, and the Articles of Incorporation and By-laws for the
Abacoa POA and all exhibits thereto, and all rules and regulations adopted
by the Abacoa POA, and the traffic regulations, as same may be amended from
time to time.
Utility Easements. The Owners' easements of
enjoyment shall be subject to easements, hereby reserved over, through and
underneath the Common Area, and (where appropriate) the Lots for present and
future utility services to the Property, including, but not limited to,
easements for water pipes, sanitary sewer pipes, emergency sewer lines,
storm drainage pipes, sprinkler pipes, telephone cables, security wires and
street lights. Easements for such utility services are reserved by Developer
for all buildings and improvements which have been or may be constructed on
the Property and Developer may grant specific easements to utility companies
and others as reasonably necessary. Utility facilities or equipment may be
installed within such easements, including, but not limited to, pipes,
lines, meters, transformers, pedestals, boxes, and similar above ground and
underground facilities and equipment for water, irrigation, sewer, gas,
telephone, electricity, cable television, or other information or
communication services. The developer makes no representations as to the
location or size of such facilities or equipment.
Cable Television and Wireless Communication. The
Abacoa POA reserves the right to lease portions of the Abacoa common
property to a cable television company or a similar operation for the
purpose of installation of a transmission tower. The Abacoa Developer or the
Abacoa POA may grant easements over the Common Area and the Abacoa common
property for cable television, cable radio, cellular telephone, or similar
operations.
Bicycle Path. Notwithstanding the fact that parts
of the bicycle/pedestrian path in Abacoa may be located within the Property,
such paths are subject to an easement for use by all owners of property
within Abacoa, their guests, licensees, and invitees.
Emergency Access. In case of any emergency
originating in, or threatening the Property or any Unit, regardless of
whether the Owner is present at the time of such emergency, the Board of
Directors of the Association or the Abacoa POA, or any other person
authorized by the Association or the Abacoa POA, or the management agent
under a management agreement, shall have the right to enter the Property or
such Unit, for the purpose of remedying, or abating, the cause of such
emergency, and such right of entry shall be immediate.
Abacoa POA Rights. In the event of a permanent
dissolution of the Association or in the event the Association fails to
maintain the Common Area, the Abacoa POA may maintain the Common Area and may
collect assessments against Members for the costs thereof, in accordance with
the Abacoa Declaration. Upon permanent dissolution of the Association, the
Members shall immediately hold title to the Common Area as tenants in common.
Abacoa Development Company Rights. The Owners'
easements of enjoyment shall be subject to the rights reserved by the Abacoa
Development Company, its successors or assigns, or successors in title, for
future development of Abacoa. As a material condition for ownership of a Unit,
each Owner, by accepting a deed to a Unit, releases Abacoa Development
Company, its successors or assigns, or successors in title, from any claim for
interference with his quiet enjoyment of his Unit or the Common Area, due to
the development of Abacoa, whether or not the construction operations are
performed on the Abacoa common property, the Common Area, or the Lots, and
each Owner acknowledges and agrees that the Abacoa Development Company shall
have the sole right of design, construction, development and improvement of
the Abacoa common property, and other property owned by the Abacoa Development
Company within Abacoa.
Developer Rights. The Developer reserves the right to amend this Declaration unilaterally prior to the Transfer Date, without prior notice and without the consent of any Person, provided such amendment is not unequivocally contrary to the General Plan of Development, and further provided Developer obtains the prior written consent to such amendment, if any, required from the Abacoa POA, Abacoa Development Company, and governmental agencies.
ARTICLE IV
MEMBERSHIP AND VOTING RIGHTS
Membership. The Owner of the fee simple title of
record of each Unit shall be a mandatory member of the Association, and the
Abacoa POA. Membership shall continue until the Member transfers or conveys
its interest of record or the interest is transferred by operation of law, at
which time the membership shall automatically be conferred upon the
transferee. Each owner shall have also an interest in the Abacoa POA by and
through the Homeowners Association.
Homeowners Association. Each Unit owner shall become
a member of the Homeowners Association upon acceptance of a deed to his Unit.
As a member of the Homeowners Association, the Owner shall be governed by the
Articles of Incorporation and the By-Laws of the Homeowners Association; and
shall be entitled to one (1) vote for each Unit owned. The rights and
privileges of membership may be exercised by a Member or the Member's spouse,
subject to the provisions of this Declaration and the By-laws. The membership
rights of a Unit owned by a corporation or partnership shall be exercised by
the individual designated by the Owner in a written instrument provided to the
secretary of the Homeowners Association. Provided, however, the Developer
shall retain the right to appoint all of the directors to the Board of
Directors of the Homeowners Association until the Transfer Date.
Abacoa POA. Each Unit Owner shall have an
interest in the Abacoa POA upon acceptance of a deed to his Unit. The rights,
privileges, and obligations of membership are more fully described in the
Articles and By-Laws of the Abacoa POA.
ARTICLE V
USE OF PROPERTY
Single Family Residence. The Units shall be used as single family residences. Nothing herein shall be deemed to prevent
an Owner from leasing a Unit to a Single Family, subject to the terms,
conditions, and covenants contained in this Declaration.
Use Restrictions. The Board shall have the authority
to make and enforce standards and restrictions governing the use of the
Properties, in addition to those contained herein. Such regulations and use
restrictions shall be binding upon all Owners and occupants until and unless
overruled, canceled or modified in a regular or special meeting of the
Association.
Occupants Bound. All provisions of the Homeowners
Documents and of any Rules and Regulations or use restrictions promulgated
pursuant thereto which govern the conduct of Owners, and which provide for
sanctions against owners, shall also apply to all occupants of any Unit.
Business Use.
The Units shall be used for Single Family
purposes. However, nothing herein shall be deemed to prevent an Owner from
leasing a Unit to a Single Family, subject to all of the terms, conditions
and covenants contained in this Declaration, or from using a Unit for
"limited home business uses". The term, limited home business uses, are
such uses as are not apparent or detectable by sight, sound, or smell from
outside the Unit; the uses do not involve regular visits of customers or
clients to the Unit or door-to-door solicitation of residents of the
Properties; and the business activity is consistent with the residential
character of the Properties and does not violate these Use Restrictions.
Examples of "limited home business uses" include, but are not limited to,
computer-based telecommunications and literary, artistic, or craft
activities. The Board may restrict any business uses that it determines
interfere with the enjoyment or residential purpose of the Properties in
its sole and absolute discretion. With the exception of limited home
business uses, the Units shall not be used in any trade, business,
professional or commercial capacity.
Garage sales, rummage sales, or similar sales not
exceeding two consecutive days in duration will not be considered a
business or trade within the meaning of prohibited business uses, so long
as the Owner or occupants of a Unit do not hold, sponsor or participate in
more than one such sale within the Properties in any twelve (12) month
period.
Nothing contained herein shall prohibit the Developer
from carrying on any and all types of construction activity necessary to
accomplish the General Plan of Development, including the construction and
operation of a sales model and office by the Developer until all of the
Units have been sold.
Nuisance. No Unit shall be used, in whole or in
part, for the storage of any property or thing that will cause such Unit 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 in any Unit
that will emit a foul or obnoxious odor 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 or to the
development as a whole. No illegal, noxious, or offensive activity shall be
carried on in any Unit, which would tend to cause a nuisance to any person
using any property adjacent to the Unit. There shall not be maintained any
plants, animals, devices, or things 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 Properties.
Maintenance of Units. All Units shall be kept in a
clean and sanitary condition and no rubbish, refuse or garbage shall be
allowed to accumulate or any fire hazard allowed to exist. In the event an
owner fails to maintain his Unit as required, for a period of at least
fifteen (15) days, the Association shall have the right, exercisable in its
discretion, to clear any rubbish, refuse, or unsightly debris and/or growths
from any Unit deemed by the Association to be a health menace, fire hazard
or a detraction from the aesthetic appearance of The Island at Abacoa;
provided, however, that at least seven (7) days prior notice shall be given
by the Association to the Owner of such Unit before such work is done by the
Association. In the event the Association, after such notice, causes the
subject work to be done, then, and in that event, the costs of such work,
together with interest thereon at the maximum rate permitted by the usury
laws of the State of Florida, may be charged to the Owner and, as charged,
shall become a lien on the Unit, which lien shall be effective, have
priority and be enforced pursuant to the procedures set forth in this
Declaration.
Easements. Except as constructed by the Developer
or substantially similar replacements thereof, no Unit or material
improvement to a Unit shall be built or maintained upon any easement or
right-of-way, and said easements and rights-of-way shall at all times be
open and accessible to the persons entitled to the use thereof.
Laundry. No portion of the Lot shall be used for
the drying or hanging of laundry, unless such laundry is screened from
public view, so that the laundry is not visible from any Road, or from
adjoining Lots. This provision is not intended to prohibit the drying or
hanging of laundry on a Lot.
Vehicles. No motorcycle, truck, trailer, boat, van
in excess of 17 feet in length, camper, motor home, bus, commercial vehicle
of any type (i.e., any vehicle which has any exterior lettering or logo, or
has tools or equipment), non-passenger van (i.e. any van which does not have
a rear seat and side windows), or similar vehicle shall be parked on any
part of the Properties, any driveway, or designated parking space within the
Properties except: (1) within a garage, (2) commercial vehicles, vans, or
trucks delivering goods or furnishing services temporarily during daylight
hours, and (3) upon such portions of the Properties as the Board may, in its
discretion, allow. Vehicles over eighty (80") inches in height, or those
vans or trucks which do not have windows completely circling the vehicle's
exterior (similar to windows around a station wagon), and permanent
installed seating for four or more passengers, shall be considered to be a
prohibited van or truck. The Association shall have the right to authorize
the towing away of any vehicles in violation of this rule with the costs and
fees, including attorneys' fees, if any, to be borne by the vehicle owner or
violator.
Parking and Garages. Except as above noted,
vehicles shall be parked only in the garages or in the driveways serving the
Units, or in the appropriate spaces or designated areas in which parking may
be assigned, or along Roads, where such Roads are designed for and
accommodate street parking, and then subject to the reasonable rules and
regulations adopted by the Board. All commercial vehicles, recreational
vehicles, trailers, campers, camper trailers, boats, watercraft,
motorcycles, trucks and boat trailers must be parked entirely within a
garage unless otherwise approved by the Board. No garage shall be used as a
living area. No garage shall be altered in such a manner that the number of
automobiles which may be parked therein after the alteration is less than
the number of automobiles that could have reasonably been parked in the
garage as originally constructed.
Animals and Pets. No animals shall be raised,
bred, or kept in any Unit, except that dogs, cats, or other household pets
may be kept in the Unit, provided they are not kept, bred or maintained for
any commercial purpose, or in numbers deemed unreasonable by the Board.
Notwithstanding the foregoing, no animal may be kept in the Unit, which in
the judgment of the Board results in a nuisance or is obnoxious to the
residents in the vicinity. No Owner shall be permitted to maintain in his or
her Unit a bull terrier (pit bull or pit bull mix) or any dog or dogs of
mean or of violent temperament or otherwise evidencing such temperament.
Pets shall not be permitted in any of the Common Areas unless under leash.
Each pet owner shall be required to clean up after his or her pet. Each
Owner by acquiring a Unit agrees to indemnify the Association and the Abacoa
POA, and hold them harmless against any loss or liability resulting from his
or her, his or her Single Family member's, or his or her lessee's ownership
of a pet. If a dog or any other animal becomes obnoxious to other Unit
Owners by barking or otherwise, the Owner shall remedy the problem, or upon
written notice from the Association, he or she will be required to dispose
of the pet.
Subdivision of Unit. Units shall not be further
subdivided or separated by any Owner; and no portion less than all of any
such Unit, nor any easement shall be conveyed or transferred by an Owner;
provided, however, that this shall not prevent corrective deeds, deeds to
resolve boundary disputes and other similar corrective instruments.
Developer, however, hereby expressly reserves the right to subdivide,
replat, or otherwise modify the boundary lines of any Unit or Units owned by
the Developer. Any such division, boundary line change, or replatting shall
not be in violation of the applicable municipal subdivision and zoning
regulations.
Antennas. No exterior antennas, aerials, satellite
dishes, or other apparatus for the reception or transmission of television,
radio, or other signals of any kind shall be placed, allowed, or maintained
upon any portion of the Properties, including any Unit, unless installed by
the Abacoa Development Company or the Abacoa POA, without the prior written
approval of the ACC (hereinafter defined).
Energy Conservation Equipment. All solar heating
apparatus must conform to the standards set forth in the HUD Intermediate
Minimum Property Standards Supplement, Solar Heating, and domestic Water
Systems. No solar energy collector panels or attendant hardware or other
energy conservation equipment shall be constructed or installed unless it is
an integral and harmonious part of the architectural design of a structure,
as reasonably determined by the ACC. No solar panel, vents, or other
roof-mounted, mechanical equipment shall project more than 1.0 feet above
the surface of the roof of a Unit; and all such equipment, other than solar
panels, shall be painted consistent with the color scheme of the portion of
the Unit to which such equipment is installed. This provision is not
intended to prohibit the use of solar energy devices.
Windows and Front Porches. All draperies,
curtains, shades, or other window coverings installed in a Unit, and which
are visible from the exterior of a Unit shall have a white backing, unless
otherwise approved by the ACC. Front porches are intended for seating,
gathering, and conversation, and are not to be used for storage of
equipment, bicycles, toys, or similar personal property. The types of
personal property permitted to be placed on a front porch are outdoor
furniture, overhead fans, and potted plants. No front porch shall be
enclosed in any manner, including, without limitation, with screening,
windows, or walls.
Signs. No sign, symbol, name, address, notice, or
advertisement shall be inscribed or exposed on or at any window or other
part of a Unit or Common Areas without the prior written approval of the
Board. The Board or the Developer shall have the right to erect signs as
they, in their sole discretion, deem appropriate, subject to approval by the
ACC, which shall not be unreasonably withheld.
Hurricane Season. Each Unit Owner who intends to
be absent from his Unit during the hurricane season (May 1 - November 30 of
each year) shall prepare his Unit prior to his departure by doing the
following:
Removing all furniture, potted plants, and other
movable objects from his yard, patio, and deck; and
Designating a responsible person or firm, satisfactory
to the Association, to care for his Unit should it suffer hurricane
damage. Such person or firm shall also contact the Association for
permission to install temporary hurricane shutters, which must be removed
when no longer necessary for storm protection. At no time shall hurricane
shutters, other than shutters installed by the Developer, be permanently
installed, without the consent of the ACC.
If approved by the ACC, temporary or permanent exterior
shutters may only be closed during a storm event or when a storm event is
imminent. A "storm event" is defined as a meteorological event in which
winds in excess of 40 mph or rainfall has occurred, or is expected to
occur on the Properties, within 6 hours.
Lighting. Except for seasonal Christmas decorative
lights, which may be displayed between December 1 and January 10 only, all
exterior lights must be approved by the ACC.
Artificial Vegetation. Exterior Sculpture. and Similar
Items. No artificial vegetation shall be permitted on the exterior of
any portion of the Properties. Exterior sculpture, fountains, flags, and
similar items must be approved by the ACC.
Irrigation. The Developer shall install a
sprinkler system on each Lot. Except for sprinkler or irrigation systems
installed by the Developer, no sprinkler or irrigation systems of any type
which draw water from lakes, rivers, ponds, canals or other ground or
surface waters within the Properties shall be installed, constructed or
operated within the Properties unless prior written approval from the ACC
has been obtained.
Drainage and Septic Systems. Catch basins and
drainage areas are for the purpose of structured and channeled flow of
surface water only. No obstructions or debris shall be placed in these
areas. No Person, other than the Developer, the Abacoa POA, the NPBCID, or
the South Florida Water Management District, may obstruct or re-channel the
drainage flows after location and installation of drainage swales, storm
sewers, or storm drains. Developer, the Abacoa POA, and the Abacoa
Development Company hereby reserve a perpetual easement across the
Properties for the purpose of altering drainage and water flow. Septic
systems are prohibited on the Property.
Tree Removal. No trees shall be removed, except
for diseased or dead trees and trees needing to be removed to promote the
growth of other trees or for safety reasons, unless approved by the ACC.
Sight Distance. All property located at street
intersections shall be landscaped so as to permit safe sight across street
corners. No fence, wall, hedge, shrub or planting shall be placed or
permitted to remain where it would create a traffic or sight problem.
Lakes and Water Bodies. All lakes, ponds, and
streams within the Properties, if any, shall be aesthetic amenities only,
and no other use thereof, including, without limitation, boating, swimming,
playing, or use of personal flotation devices, shall be permitted. The
Association, the Abacoa POA, the Abacoa Development Company, or the NPBCID
shall not be responsible for any loss, damage, or injury to any person or
property arising out of the authorized or unauthorized use of lakes, ponds,
or streams within the Properties, if any.
Recreational Facilities. All recreational
facilities and playgrounds furnished by the Abacoa POA or the Association,
if any, or erected within the Properties, if any, shall be used at the risk
of the user, and neither the Association nor the Abacoa POA shall be held
liable to any Person or any claim, damage, or injury occurring thereon or
related to use thereof.
Rules and Regulations. The Unit Owners shall abide
by each and every rule and regulation promulgated from time to time by the
Board. The Board shall give an owner in violation of the Rules and
Regulations the Association, written notice of the violation by U.S.
Certified Mail, return receipt requested, and fifteen (15) days in which to
cure the violation. Should the Association be required to seek enforcement
of any provision of this Declaration or the Rules and Regulations and
prevail in such action, then the offending Unit Owner (for himself or his
Single Family, guests, invitees, or lessees) shall be liable to the
Association for all costs incurred in the enforcement action, including
reasonable attorneys' fees, whether incurred in trial or appellate
proceedings or otherwise.
Abacoa POA Rules and Regulations. The Unit Owners
shall abide by each and every rule and regulation promulgated from time to
time by the POA. The board of the Abacoa POA shall give an owner in
violation of he rules and regulations of the Abacoa POA, written notice of
the violation on by U.S. Certified Mail, return receipt requested, and
fifteen (15) days in which to cure the violation. Should the Abacoa POA be
required seek enforcement of any provision of this Declaration, the Abacoa
Declaration, or the Rules and Regulations and prevail in such action, then
the offending Unit Owner (for himself or for his Single Family, guests,
invitees, or lessees) shall be liable to the Abacoa POA for all costs
incurred in the enforcement action, including reasonable attorneys' fees,
whether incurred in trial or appellate proceedings or otherwise.
ARTICLE VI
COMMON AREAS
Title to Common Area. The Developer shall not be
required to convey title to the Common Area or any portion thereof to the
Association until the Transfer Date. Notwithstanding the manner in which title
is held, the Association shall be responsible for the management, maintenance,
and operation of the Common Areas, (excepting only such portions of the Common
Areas which may be subject to express easements which may provide for or the
maintenance of such portions of the Common Areas to be provided by the
easement grantee), and for the payment of all real estate taxes and other
assessments which are liens against the Common Area, from and after the
recording of this Declaration. On or before the Transfer Date, the Developer
shall convey the Common Area to the Association by quitclaim deed. The
developer shall not be required to provide any title insurance or other
related title documents to the Association in connection with the conveyance
of the Common Areas.
Annexation of Additional Property. The Association
shall have the power and authority to acquire and annex to the Common Areas
other interests in real and personal property as it may deem beneficial to the
Members. Any property acquired pursuant to this section shall be annexed to
the Common Areas by means of a Subsequent Amendment recorded in the public
records of the County.
Rules and Regulations Governing Use of Common Areas.
The Board shall promulgate rules and regulations governing the use of the
Common Areas. Such rules and regulations, and all provisions, restrictions,
and covenants as now or hereinafter provided, including, without limitation,
all architectural and use restrictions contained in this Declaration and in
the Abacoa Declaration may be enforced by legal or equitable action as
provided herein or therein.
Traffic Regulation. The Board shall have the right
to post motor vehicle speed limits throughout the Common Areas, and to
promulgate other traffic regulations. The Board may also promulgate rules and
procedures for the enforcement of the traffic regulations, including, without
limitation, the assessment of fines against Owners who violate the traffic
regulations and against Owners whose Single Family members, guests, invitees,
licensees, employees, or agents violate the traffic regulations. The fines
shall be collected in the same manner as an individual assessment in
accordance with the Declaration from the Owner who violates the traffic
regulations, or from the Owner whose Single Family members, guests, invitees,
licensees, employees, or agents violate the traffic regulations. Before any
fine shall be effective, the Owner shall be entitled to notice and an
opportunity to be heard before the Board.
Implied Rights. The Association may exercise any
other right or privilege given to it expressly by this Declaration or the
By-Laws, and every other right or privilege reasonably to be implied from the
existence of any right or privilege given to it herein or reasonably necessary
to effectuate any such right or privilege.
ARTICLE VII
EASEMENTS
Easements for all Owners. The Developer hereby
grants a perpetual non-exclusive easement to the Association and to the Unit
Owners, their families, guests, invitees, licensees and lessees upon, over,
and across the sidewalks, walkways, rights-of-way and other Common Areas. The
Developer hereby grants an additional perpetual non-exclusive easement to the
Association over, across, through, and under all portions of the General Plan
of Development for the purpose of performing the maintenance and repair
requirements of the Association as described in this Declaration.
Easements for Townhouse Unit Owners. The Developer
hereby grants a perpetual easement to all Townhouse Unit Owners for driveway
and vehicular access across driveways located on the Common Areas where such
Townhouse Units are accessed from an alley. The Developer also grants a
perpetual easement over the Common Area to all Townhouse Unit Owners for any
air conditioning pads and air conditioning equipment located thereon located
adjacent to the end Units of any Townhouse Unit building. Any utility or
service provider requiring access to such air conditioning pads or equipment
shall likewise have the right of ingress and egress over such portions of the
Common Area as may be needed to service, repair, or replace such air
conditioning equipment.
Easements for Utilities.
Common Areas. The Developer hereby also grants a
perpetual non-exclusive easement to all utility or service companies
servicing the Property upon, over, across, through, and under the Common
Areas and such other portions of the Property on which utility facilities
may be located for ingress, egress, installation, replacement, repair, and
maintenance of all utility and service lines and systems including, but not
limited to, water, irrigation, sewer, gas, telephone, electricity,
television cable or communication lines and systems. It shall be expressly
permissible for the Developer or the providing utility or service company to
install and maintain facilities and equipment on said property, to excavate
for such purposes and to affix and maintain wires, circuits and conduits on,
in and under the Common Areas, provided, however, that any such installation
or maintenance shall not diminish any pre-existing uses, and further
providing such company restores any disturbed area substantially to the
condition existing prior to their activity. No utility service line or
system may be installed or relocated within the Common Areas without the
consent of the Association.
Townhouse Units. The Developer hereby also grants
a perpetual utility easement on the exterior walls of end Units of Townhouse
Unit buildings, and under the Townhouse Units for the use and benefit of the
Townhouse Unit Owners owning Units within such Townhouse Unit building. It
is expressly understood that the construction of Townhouse Units shall occur
over the underground easements. These easements are for ingress, egress,
installation, replacement, repair and maintenance of utility meters and
lines for electricity, air conditioning refrigerant, telephone, cable tv and other telecommunication services. It shall be
expressly permissible for the Developer or the providing utility or service
company to inspect, monitor, read meters, and install and maintain
facilities and equipment on the end Units of Townhouse Unit buildings and
under Townhouse Units, and to insert and maintain wires and lines
within conduits under such Townhouse units, providing such utility company
restores any disturbed area substantially to the condition existing prior to
their activity. Unless maintenance, repairs, or replacement of underground
utility lines are required, and such service cannot be accomplished from the
exterior of the Townhouse Unit building by removing such lines from their
respective conduits, then it shall be permissible for such utility or
service provider to excavate such lines and to perform any necessary
maintenance, repairs or replacements, providing, thereafter, such company
restores any disturbed area substantially to the condition existing prior to
its activity. The Owner of the Townhouse Unit floor surface shall have complete
surface rights unless such maintenance, repairs, or replacements from the
surface of the garage floor are necessary.
Easements for Drainage Facilities. Easements for the
installation and maintenance of drainage facilities are granted to the
Association, and the Developer as shown on the Plat of The Island at Abacoa.
Within these easement areas, no structure, planting or other material (other
than sod), which may interfere with such installation and maintenance, or
which may obstruct or retard the flow of water through drainage channels shall
be placed or permitted to remain unless such structure, planting or other
material was installed by Developer. The Association and the Abacoa POA shall
have access to all such drainage easements for the purpose of operation and
maintenance thereof.
Easements for Encroachments. The Developer hereby
grants an easement for encroachment in the event any improvements upon the
Common Areas now or hereafter encroaches upon a Unit, or in the event that any
Unit now or hereafter encroaches upon the Common Area or any other Lot, as a
result of minor inaccuracies in survey, construction, reconstruction, or due
to settlement or movement or otherwise. The encroaching improvements shall
remain undisturbed as long as the encroachment exists. This easement for
encroachment shall also include an easement for the maintenance and use of the
encroaching improvements. Provided, however, that at no time shall there be
any encroachment onto the Water Management System (Primary), without the
written consent of the NPBCID and the South Florida Water Management District.
Easements to the Abacoa POA. The officers, agents,
employees, and independent contractors of the Abacoa POA shall have a
nonexclusive easement to enter upon any portion of the Common Areas for the
purpose of performing or satisfying the duties and obligations of the Abacoa
POA, as set forth in the Abacoa Declaration, the Articles and By-Laws of the
Abacoa POA.
Easements to Institutional Mortgagees. Easements are
hereby granted to all Institutional Mortgagees holding mortgages upon any
portion of the Property for the purpose of access to the property subject to
its mortgage.
Easements to the Abacoa Development Company. Easements are hereby reserved throughout the Common Areas, including without limitation, the Roads located on the Common Area and the easements shown on the Plat of The Island at Abacoa, by Developer, for the reasonable use of the Abacoa Developer, and the reasonable use of its agents, employees, licensees and invitees, for all purposes.
ARTICLE VIII
MAINTENANCE
Association's Responsibility.
Common Areas. The Association shall maintain and
keep in good repair the Common Areas as described in this Declaration. The
maintenance of the Common Areas shall include, without limitation,
maintenance, repair, and replacement, subject to any insurance then in
effect, of all plantings and sodding of Common Area road rights-of-way; all
perimeter plantings and sod; right-of-way, perimeter, and other Association
irrigation facilities and pumps; all roads and alleys within the Common
Areas, which are not publicly dedicated and maintained; all road and
identification signage; drainage easements and other easements; drainage
facilities and water control structures; sidewalks located within
rights-of-ways; sod, landscaping and other flora located on the Common
Areas; and other structures and improvements situated upon the Common Area.
The cost to the Association of maintaining the Common Areas shall be
assessed equally among the Unit Owners, as part of the Association Expenses
pursuant to the provisions of this Declaration.
Front Yard and Irrigation Maintenance, and Public
Property. The Association may maintain property which it does not own,
including, without limitation, the front yards (street side) of the Units,
and property dedicated to the public. The front yard of an Unit shall
include all portions of a Lot as it is originally landscaped by the
Developer, lying street side of an imaginary line created by the horizontal
plane of the front door of the Unit in a closed position. The maintenance of
the front yards of Units shall include, without limitation, maintenance,
repair, and replacement, subject to any insurance then in effect (if
appropriate), of all plantings and sodding of front yards of the Units; all
drainage facilities, pipes, lines and easements associated with the front
yards of Units; and sidewalks located within Lots. The Association shall
also maintain the irrigation system or facilities installed throughout each
Lot. The cost to the Association of maintaining the front yards of the
Units, the irrigation system installed throughout the Lots, and property
dedicated to the public shall be assessed equally among the Unit Owners, as
part of the Association Expenses pursuant to the provisions of this
Declaration. The maintenance of property dedicated to the public shall only
be undertaken in the event that the Board determines that such public
property maintenance is necessary or desirable. This provision is not
intended to make the Association the insurer of any Lot.
Irrigation Quality ("I.Q.") Water Facilities. The
Association shall be responsible in perpetuity for the I.Q. water payment
and the operation, maintenance, repair, and replacement of the I.Q.
facilities owned by the Association and located with the Common Area, as
well as those I.Q. water facilities located on the Lots, in accordance with
the standards, rules, and regulations of all competent regulatory agencies,
including, without limitation, the Loxahatchee River Environmental Control
District ("Loxahatchee River District"). The Association shall have access
to all Lots for the operation, maintenance, repair and replacement of I.Q.
water facilities. The Association shall provide written notice to the
Loxahatchee River District prior to the removal or major alteration of I.Q.
water facilities located in the Common Areas or any Lot.
Owner's Responsibility. All maintenance activities
not specifically undertaken by the Association as described above shall be the
responsibility of each Owner who shall maintain his or her own Unit, and the
structures, driveway, sidewalks, and other improvements comprising the Unit in
a manner consistent with the Community-Wide Standard, and all applicable
covenants. where applicable, each Owner of an Unit adjacent to an alley shall
maintain, repair and replace all landscape lying within the right of way of an
adjacent alley between the Unit boundary and the paved portion of the alley in
a manner consistent with the Community-Wide Standard.
Townhouse Unit Owner's Maintenance Responsibility.
Maintenance of the Exterior of the Townhouse Unit.
Subject to the maintenance duties of the Association, each Townhouse Unit
owner shall maintain his or her own Townhouse Unit, including all boundary
walls and fences, in good condition and repair and in a like condition,
appearance, and quality as originally constructed. Each Unit Owner shall
maintain his own lawn and landscaping located in the rear yard of his Lot.
The rear yard of a Lot includes all portions of the Lot which is not the
front yard (defined above). Notwithstanding the foregoing, the Association
shall be responsible for normal and routine pressure cleaning and painting
of the Shared Roofing (defined below), boundary walls and fences of a
Unit. The Board shall determine the need for such cleaning and painting
from time to time. All costs reasonably related to said cleaning and
painting shall be borne by the Association as an Association Expense.
Party Walls. The Units comprising each Townhouse
Unit building are residential Townhouse Units with common walls, known as
"party walls", between each Unit that adjoins another Unit. The center
line of a party wall is the common boundary of the adjoining Unit. The
cost of maintaining each side of a party wall shall be borne by the Unit
Owner using said side, except as otherwise provided herein. Each adjoining
owner of a party wall, his heirs, successors, and assigns shall have the
right to use same jointly with the other party to said wall as herein set
forth. The term "use" shall and does include normal interior usage such as
paneling, plastering, decoration, erection of tangent walls and shelving
but prohibits any form of alteration which would cause an aperture, hole,
conduit, break or other displacement of the original concrete forming said
party wall.
Party Fences. Those walls, structures, or
fences, which may be constructed between two adjoining Townhouse Units and
are to be shared by the Owners of said adjoining Townhouse Units are to be
known as and are hereby declared to be "Party Fences". Party Fences shall
be the joint maintenance obligation of the Owners of the Townhouse Units
bordering the fences. Each Townhouse Unit Owner shall have the right to
full use of said fence subject to the limitation that such use shall not
infringe on the rights of the Owner of the adjacent Townhouse Unit or in
any manner impair the value of said fence. Each Owner shall have the right
and duty to maintain and to perform superficial repairs to that portion of
a Party Fence which faces such Owner's Unit. The cost of said maintenance
and superficial repairs shall be borne solely by said Owner. In the event
of damage or destruction of the Party Fence from any cause whatsoever,
other than negligence or willful misconduct of one of the adjacent
Townhouse Unit owners, the Owners of the adjacent Townhouse Units shall,
at their joint expense, repair and rebuild said fence within 30 days,
unless extended by the Board. In the event it is necessary to repair or
rebuild a Party Fence, the Owners shall agree on the cost of such repairs
or rebuilding, and shall agree on the person or entity to perform such
repairs, provided however, all such repairs must be performed by a
qualified contractor. If the Owners cannot agree on the cost of such
repairs or on the person or entity to perform such repairs, each Owner
shall choose a member of the Board to act as their arbiter. The Board
members so chosen shall agree upon and choose a third Board member to act
as an additional arbiter. All of the said Board members shall thereafter
choose the person or entity to perform the repairs and shall assess the
costs of such repairs in equal shares to the Owners. Whenever any such
fence or any part thereof shall be rebuilt, it shall be erected in the
same manner and be of the same size and of the same or similar materials
and of like quality and color and at the same location where it was
initially constructed. Provided, that if such maintenance, repair or
construction is brought about solely by the neglect or the willful
misconduct of one Townhouse Unit Owner, any expense incidental thereto
shall be borne solely by such wrongdoer. If the Townhouse Unit Owner
shall refuse to repair or reconstruct the fence within 30 days, unless
extended by the Board, and to pay his share, all or part of such cost in
the case of negligence or willful misconduct, the Association may have
such fence repaired or reconstructed and shall be entitled to a lien on
the Lot of the Townhouse Unit Owner so failing to pay for the amount of
such defaulting Owner's share of the repair or replacement. In the event
repairs or reconstruction shall be necessary, all necessary entries on the
adjacent Townhouse Unit Lots shall not be deemed a trespass so long as the
repairs and reconstruction shall be done in a workmanlike manner, and
consent is hereby given to enter on the adjacent lots to effect necessary
repairs and reconstruction.
Shared Roofing. The entire roof of the Townhouse
Unit building, any and all roof structure support, and any and all
appurtenances to such structures, including without limitation, the roof
covering, fascia, soffit, and roof drainage fixtures, shall be
collectively referred to as "shared roofing". The shared roofing shall not
be considered as Common Area. To the extent not inconsistent with the
provisions of this Section, the general rules of law regarding party walls
and liability for property damage due to negligence or willful acts or
omissions shall apply thereto. All Owners who make use of the shared
roofing shall share the cost of reasonable repair and maintenance of such
shared roofing equally. If any portion of the shared roofing is destroyed
or damaged by fire or other casualty, then to the extent that such damage
is not covered by insurance and repaired out of the proceeds of insurance,
any Owner who has use of the shared roof roofing may restore it. If other
owners also have use of the shared roofing, they shall contribute to the
restoration cost in equal proportions. However, such contribution will not
prejudice the right to call for a larger contribution from an Owner who
may have a greater liability under any rule of law regarding liability for
negligent or willful acts or omissions. The right of an Owner to
contribution from any other Owner under this subparagraph shall be
appurtenant to the land and shall pass to such Owner's
successors-in-title.
Damage. If a Townhouse Unit is damaged solely by
the negligent or willful misconduct of a Townhouse Unit Owner, any expense
to repair or reconstruct the Unit shall be borne solely by such wrongdoer.
If a Townhouse Unit is damaged through an act of God or suffers some other
casualty loss, the affected Owner shall promptly have his Unit repaired
and rebuilt substantially in accordance with the original architectural
plans and specifications of the Townhouse Unit building, subject to the
procedures of the ACC set forth herein. If the Unit Owner refuses or fails
to pay the cost of such repair or reconstruction, or if insurance proceeds
are insufficient to repair or rebuild the affected Unit(s) the Association
shall have the right to specially assess all Members of the Association
for the costs of such repair and re-construction, and the Association
shall thereafter have the right to complete such repair and reconstruction
substantially in accordance with the original plans and specifications of
the affected building. If the Members are specially assessed in accordance
herewith, the Association shall have the right to lien the repaired or
reconstructed Townhouse Unit for a reimbursement of all expenditures of
the Association in connection with the repair or reconstruction, including
without limitation all repair or reconstruction costs, interest, costs,
professional fees. Upon payment and satisfaction of such a lien, the
reimbursement of such costs and fees shall be added to the capital
contribution funds of the Association. The assessment and collection of
such assessment authorized pursuant to this paragraph shall be made in
accordance with the assessment powers and lien rights of the Association
for Default Assessments.
Modifications. No Townhouse Unit Owner shall
paint, refurbish or modify the exterior surfaces of his Unit without the
prior written consent of the ACC. While normal cleaning, repainting and
refinishing of the exterior surfaces shall be done uniformly at the same
time for all Units by the Association and as an Association Expense, a
Townhouse Unit Owner may perform such cleaning, repainting or refinishing
at his own expense with the prior written consent of the ACC.
Failure to Maintain. In the event a Unit Owner
shall fail to maintain correct Lot drainage and to maintain the premises
and the improvements thereon, as provided herein, the Association or the
Abacoa POA, after reasonable notice to the Owner, shall have the right to
enter upon any Lot to correct drainage and to repair, maintain and restore
the exterior of the Unit and any other improvements erected thereon. All
costs related to such correction, repair or restoration shall become an
Special Assessment against such Unit; provided, however, except when entry
is required due to an emergency situation, the Association shall afford
the Owner reasonable notice and an opportunity to cure the failure to
maintain prior to entry.
Single Family Home Owner's Maintenance Responsibility.
The Developer intends to construct two (2) types of single family homes,
i.e., an Alley Home and a Conventional Home (defined below).
Maintenance of Exterior of Single Family Home with
garage access on an alley. Each single family home, which is not a
Townhouse Unit, and which is constructed with access to its garage from an
alley will be a zero lot line home. A zero lot line home is a home that is
constructed with one wall located on the lot line or abutting a small
easement located on the lot line. The maintenance of each single family
home constructed on an alley ("Alley Home") shall be as set forth herein.
Each Alley Home Owner shall maintain the exterior of his single family
home, including the walls (however, excluding the "Lot Perimeter Wall" as
defined herein), and fences, where applicable, in good condition and
repair. The Lot Perimeter Wall shall be defined to mean and refer to that
exterior wall of an Alley Home which is located approximately three feet
and one inch (3 ft. 1 in.) from the lot line or boundary. Notwithstanding
the foregoing, the Association shall be responsible for the normal and
routine painting of the exterior walls of Alley Homes. The Board shall
determine the need for painting from time to time. All costs reasonably
related to said painting by the Association shall be incurred as a Common
Expense.
Each Lot on which an Alley Home is constructed is
subject to an easement of approximately three feet and one inch (3 ft. 1
in.) in width which extends from the front of the home (street side) to
the rear of the lot ("Zero Line Easement"). The Zero Line Easement is in
favor of the Owner of the Lot immediately adjacent to the easement. The
Zero Line Easement is a result of building code requirements, which
disallow a Lot Owner's roof from overhanging property which is not owned
in fee by the Lot Owner. Therefore each Alley Home Owner's roof
overhangs a portion of his Lot, which is subject to the Zero Line
Easement. Each Alley Home is constructed within a Lot such that one side
of the Alley Home, the side which includes the Lot Perimeter Wall
(defined herein), is adjacent to the Zero Line Easement. A sketch of the
Zero Line Easement is attached hereto and made a part hereof marked
Exhibit "E".
The owner of the Lot immediately adjacent to the Zero
Line Easement is the grantee of the Zero Line Easement. The grantee is
hereby granted the exclusive right to use and maintain real property
within the Zero Line Easement. The Owner of the Lot on which the Zero
Line Easement is located shall not be permitted to use or to maintain
the real property within the Zero Line Easement, (except for roof
overhang) however, in the event of damage to his single family home, the
Owner of the Lot on which the Zero Line Easement is located may enter
upon the real property subject to the Zero Line Easement to perform
repairs and replacements to his Alley Home.
The Zero Line Easement area may be used by the
grantee for landscaping and irrigation purposes, for Lot Perimeter Wall
maintenance as described herein, and may be enclosed by the grantee with
fencing approved by the association. No landscaping material or fencing
may be placed in the Zero Line Easement which would contact the Lot
Perimeter Wall or the roof of the Alley Home abutting the Zero Line
Easement. No irrigation shall be permitted within the Zero Line Easement
which could damage the Lot Perimeter Wall or roof of the Alley Home
abutting the Zero Line Easement.
Maintenance of Exterior of Single family Home
without garage access on an alley. Each single family home, which is
not a Townhouse Unit, and which is constructed without access to its
garage from an alley will be a home with conventional side yard setbacks.
The maintenance of a single family home constructed with conventional side
yard setbacks ("Conventional Home") shall be as set forth herein. Each
Conventional Home Owner shall maintain the exterior of his single family
home, including the walls and fences, where applicable, in good condition
and repair. Notwithstanding the foregoing, the Association shall be
responsible for the normal and routine painting of the exterior walls of
Conventional Homes. The Board shall determine the need for painting from
time to time. All costs reasonably related to said painting by the
Association shall be incurred as a Common Expense.
Rear Yard Maintenance. Each single family home owner shall maintain his own lawn and landscaping located in the rear yard of his lot, which shall include all portions of the Lot which is not the front yard (described above). The Association shall maintain the lawn and landscaping located in the front yard of each Lot, and the i