Cape Plantation THIS DECLARATION is made this 16th day of September, 1985 , by COSTIN DEVELOPMENT CORPORATION, a Florida Corporation (herein called “The Developer”).
1. DECLARATION PURPOSES:
1.1 General Purposes. The Developer is the owner of certain real property located in Gulf County, Florida, and desires to create thereon a residential planned development with private open spaces and other common facilities for the benefit of said planned unit development.
The Developer desires to provide for the preservation of the values and amenities in said planned development and for the maintenance of the open spaces and other common facilities and to this end desires to subject the real property described in Article 3, together with such additions as hereafter may be made thereto as provided in Article 3, to the covenants, restrictions, easements, charges, and liens hereinafter set forth, each and all of which is and are for the benefit of said property and each owner thereof.
The Developer has deemed it desirable for the efficient preservation of the values and amenities in said planned development to create an agency to which will be delegated and assigned the powers of maintaining and administering the planned development properties and facilities and administering and enforcing the covenants and restrictions and collecting and disbursing the assessments and charges hereinafter created. For that purpose, the Developer has caused to be incorporated under the laws of the State of Florida as a nonprofit corporation, Cape Plantation Homeowners Association, Inc.
1.2 Declaration. To further the general purposes herein expressed, the Developer, for itself, its successors and assigns, hereby declares that all real property hereinafter described in Article 3 as “existing properties”, and such additions to the existing properties as hereafter may be made pursuant to the provisions of Article 3 hereof, whether or not referred to in any deed of conveyance of such properties, at all times is and shall be held, transferred, sold, conveyed and occupied subject to the convenants, restrictions, easements, charges and liens (sometimes referred to as “covenants and restrictions”) hereinafter set forth.
The following words and terms, when used in this Declaration or any supplemental Declaration (unless the context shall prohibit), shall have the following meanings:
2.1 “Association” shall mean and refer to CAPE PLANTATION HOMEOWNER’S ASSOCIATION, INC., a Florida corporation not for profit.
2.2 “The properties” shall mean and refer to all such existing properties, and additions thereto, as are subject to this Declaration or any supplemental declaration as provided in the provisions of Article 3 hereof.
2.3 “Existing properties” shall mean and refer to the real estate described in Article 3.1 hereof.
2.4 “Common Areas” shall mean all property legally owned by the Association including, but not limited to, all Landscaping and Pedestrian Areas, entry features, bus shelters, signs erected by the Developer to identify Cape Plantation, the main gate houses (if any) and other central security facilities and equipment, (if any), and such similar items or property which may hereafter be added by supplemental declaration regardless of whether any such items are capable of being legally described or lie within dedicated areas of The Properties; together with the landscaping and any improvements thereon, including, without limitation, all structures, recreational facilities, open space, off-street parking areas, sidewalks, street lights and entrance features, but excluding any public utility installations thereon. Developer shall have the absolute right, subject to obtaining all required governmental approvals and permits, to construct on the Common Areas such facilities as Developer deems appropriate. The timing and phasing of all such construction shall be solely within the discretion of Developer.
2.5 “Developer” shall mean and refer to Costin Development Corporation, its successors and such of its assigns as to which the rights of Developer hereunder are specifically assigned. Developer may assign all or a portion of its rights hereunder, or all or a portion of such rights in connection with appropriate portions of the Development. In the event of such a partial assignment, the assignee shall not be deemed the Developer, but may exercise such rights of Developer specifically assigned to it. Any such assignment may be made on a non-exclusive basis.
2.6 “Cape Plantation” shall mean all property legally described in Article 3 of this Declaration which is intended to be made part of a common scheme of development in the manner specified hereunder.
2.7 “Landscaping and Pedestrian Areas” shall mean and refer to strips of land of varying widths abutting the roads in The Properties for portions or all of their entire length. The Developer may establish a physical boundary between the Landscaping and Pedestrian Areas referred to above and such other-common-areas, but in the absence of such physical boundary, the Developer shall have the absolute right to determine the actual boundary and such determination shall be binding on all affected associations and Owners within the Development. The fact that certain of such Landscaping and Pedestrian Areas are not legally shown on an unrecorded subdivision map of the land described in Article 3 shall not affect their character as Common Areas for purposes hereof.
2.8 “Lot” shall mean and refer to any Lot (with the exception of common properties) which is designated by Developer to be subject to these covenants and restrictions (and to the extent Developer is not the Owner thereof, then designated by Developer joined by the Owner thereof), and thereby made subject to this Declaration. In the case of a condominium hereafter made subject to this Declaration, the “Lots” therein shall be the individual condominium units thereof and not the parcel(s) of real property on which the condominium is constructed.
2.9 “Member” shall mean and refer to all those Owners who are Members of the Association as hereinafter provided.
2.10 “Owner” shall mean and refer to the record owner, whether one or more persons or entities, of the fee simple title to any Lot situated upon The Properties.
2.11 “The Properties” shall mean and refer to all such existing properties, and additions thereto, as are now or hereafter made subject to this Declaration, except such as are withdrawn from the provisions hereof in accordance with the procedures set forth in the Declaration.
2.12 “Unit” shall mean and refer to any dwelling unit constructed on a Lot or any condominium dwelling unit in any condominium building that may be erected on any parcel of land within The Properties, which land is designated by Developer by recorded instrument to be subject to this Declaration. All references in this instrument to recording data refer to the Public Records of Gulf County, Florida.
3. PROPERTY SUBJECT TO THIS DECLARATION; ADDITIONS THERETO.
3.1 Legal Description. The initial real property which is and shall be held, transferred, sold, conveyed and occupied subject to this Declaration is located in Gulf County, Florida, and is more particularly described as: An unrecorded subdivision of a portion of section 25, township B south, Range II west, Gulf County, Florida and being more particularly described as follows:
Commencing at the NE corner of section 25, township B south, range II west; Thence south (assumed) along the east line of said section 25 for 32, 32 feet to a concrete monument on the south right-of-way line of west Rutherford road (66 feet as wide as occupied); Thence 5.89 42’30” W. along said right-of-way line 399,66 feet for the point of beginning; thence 5.2 26′ 47″ W.2646.41 feet; thence N,87 33’13” W. 214.66 feet; thence N. 7 12′ 50″ E. 296.62 feet to a concrete monument; thence N. 49 36′ OO”W. 263.28 feet to a concrete monument; thence S. 63,28’45” W. 111.38 feet to a concrete monument; thence north 2216.66 feet to an iron rod on the south right-of-way line of said Rutherford Road; thence N.89 42′ 30″E. along said right-of-way line of said for 590.34 feet to the point of beginning, (new description). Containing 29.669 acres, more or less.
3.2 Supplements. Developer may from time to time bring other land in and outside Cape Plantation under the provisions of this Declaration by recorded supplemental declarations (which shall not require the consent of the existing Owners or the Association) and thereby add to The Properties. Nothing in this Declaration shall obligate Developer to add to the initial portion of The Properties or to develop future portions of Cape Plantation under such common scheme, nor to prohibit Developer from changing the development plans with respect to such future portions and/or the Developer from adding additional or other property to Cape Plantation and The Properties under such common scheme. All Owners, by acceptance of a deed to or other conveyance of their Lots, thereby automatically consent to any such change, addition or deletion thereafter made by the Developer and shall evidence such consent in writing if requested to do so by the Developer at any time (provided, however, that the refusal to give such written consent shall not abviate the general effect of this provision).
3.3 Withdrawal. Developer reserves the right to amend this Declaration unilaterally at any time, without prior notice and without the consent of any person or entity, for the purpose of removing certain portions of The Properties then owned by the Developer or its affiliates or the association from the provisions of this Declaration to the extent included originally in error or as a result of reasonable changes in the plans for Cape Plantation desired to be effected by the Developer.
4. MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION
4.1 Membership. Every person or entity who is a record owner of a fee or undivided fee interest in any lot or living unit which is subject by covenants of record to assessment by the association, shall be a member of the association. Notwithstanding the foregoing, any such person or entity who merely holds record ownership as security for the performance of an obligation shall not be a Member of the Association.
4.2 Voting Rights. The Association shall have two (2) classes of voting Members:
Class A. Members shall be all those Owners as defined in Article 4.1 with the exception of the Developer (as long as the Class B membership shall exist, and thereafter, the Developer shall be a Class A Member to the extent it otherwise would quality). Class A Members shall be entitled to one vote for each Lot owned. When more than one person is the Owner of any Lot, all such persons shall be Members, but the single vote for such Lot shall be exercised as they among themselves determine, but, subject only to the following subsection, in no event shall more than one (1) vote be cast with respect to any such Lot.
Class B. The Class B Member shall be the Developer. The Class B Member shall be entitled to one (1) vote, plus two (2) votes for each vote which the Class A Members, including any supplements as provided for in Article 3.2, are entitled to cast in the aggregate from time to time, provided that the Class B membership shall cease and terminate one (1) year after the last Lot within Cape Plantation owned by Developer (or its affiliates have been conveyed to third- parties, or at any time prior to that date at the election of the Developer.
4.3 General Matters. When reference is made in this Declaration, or in the Articles, By-Laws, Rules and Regulations, management contracts or otherwise, to a majority or specific percentage of Members, such reference shall be deemed to be reference at a duly constituted meeting thereof (i.e, one for which proper notice has been given and at which a quorum exists) and not of the Members themselves or their Lots.
5. PROPERTY RIGHTS IN THE COMMON AREAS
5.1 Ownership. Subject to the provisions of this Article 5, the Common Areas are hereby dedicated to the joint and several use, in common, of the Developer and the Owners of all Lots. When all improvements proposed by Developer to be constructed within The Properties have been completed and conveyed to purchasers, or sooner at Developer’s option, exercisable from time to time as to any portion or all of the Common Areas, the Developer, or its successors and assigns, shall convey and transfer the record fee simple title to the Common Areas (except those areas lying within dedicated areas or not capable of being legally described, including, but not limited to, the Landscaping and Pedestrian Areas) to the Association, and the Association shall accept such conveyance, holding title for the Owners and Members. Beginning upon the date these covenants are recorded, the Association shall be responsible for the maintenance of all Common Areas in a continuous and satisfactory manner without cost to the general taxpayers of Gulf County. It is intended that all real estate taxes assessed against the portion of the Common Areas owned or to be owned by the Association shall be proportionally assessed against and payable as part of the taxes of the Lots within The Properties. However, in the event that, notwithstanding the foregoing, any such taxes are assessed directly against the Common Area, the Association shall be responsible for the payment of the same, including taxes on any improvements and any personal property thereon accruing from and After the date these covenants are recorded. Developer and its affiliates shall have the right from time to time to enter upon the Common Areas and other portions of The Properties for the purpose of construction, reconstruction, repair, replacement and/or alteration of any improvements or facilities on the Common Areas. Developer and its affiliates shall have the right to use the Common Areas for sales, displays, and signs during the period of construction and sale of any of the land owned by Developer and its affiliates within Cape Plantation.
5.2 Members’ Easements. Each Class A and the Class B Member of the Association, and each tenant, agent and invitee of such Member, shall have a permanent and perpetual non-exclusive easement for the use and enjoyment of all Common Areas in common with all other Members of the Association, their tenants, agents and invitees.
All rights of use and enjoyment are subject to the following:
(a) Easements over and upon the Common Areas in favor of all members and their invited guests, provided, however, that this subsection shall not in itself be deemed to grant any easements or use rights which are not specifically granted elsewhere herein or in any other documents to which The Properties are now or hereafter made subject.
(b) The right and duty of the Association to levy assessments against each Lot for the purpose of maintaining the Common Areas and facilities in compliance with the provisions of this Declaration.
(c) The right of the Association to suspend the right of an Owner (or Member) and his designees to use the Common Areas (except for legal access) and common facilities for any period during which any applicable assessment remains unpaid; and for a period not to exceed sixty (60) days for any infraction of lawfully adopted and published rules and regulations.
(d) The right of the Association to charge reasonable admission and other fees for the use of any recreational facility situated on the Common Areas.
(e) The right of the Association to adopt and enforce rules and regulations governing the use of the Common Areas and Common facilities, including the right to fine Members as elsewhere provided herein.
(f) The right of Association, by a 2/3 affirmative vote of the entire membership, to dedicate portions of the Common Areas to a SubAssociation or a public agency under such terms as the Association deems appropriate and to create or contract with community development and special taxing districts for lighting, roads, recreational or other services, security, communications and other similar purposes deemed appropriate by the Association (to which such creation or contract all Owners hereby consent).
(g) Anything to the contrary in this Declaration notwithstanding, the Developer shall have the right to permit persons other than Members and designated persons to use certain portions of the Common Areas and any recreational facilities that may be constructed thereon under such terms as Developer, its successors and assigns, may from time to time desire without interference from the Association.
(h) The right of the Developer and the Association to grant general (“blanket”) and specific easements over, under and through the Common Areas.
(i) The right to the use and enjoyment of the Common Areas and facilities thereon in the case of Class A Members shall extend to each permitted user’s immediate family who reside with him subject to regulation from time to time by the Association in its lawfully adopted and published rules and regulations.
5.3 Easements Appurtenant. The easements provided in Section 5.2 shall be appurtenant to and shall pass with the title to each Lot.
5.4 Maintenance. The Association shall at all times maintain in good repair, operate, manage and insure, any and all improvements situated on the Common Areas, including, but not limited to, all recreational facilities, landscaping, paving, drainage structures, street lighting fixtures and appurtenances, sidewalks, swimming pools and structures (except public utilities). Without limiting the generality of the foregoing, the Association shall assume all of Developer’s, its affiliates’ (and its and their predecessors) responsiblity to Gulf County of anykind with respect to the Common Areas, including,but not limited to, roads and entry features, and shall indemnify Developer and its affiliates and hold Developer and its affiliates harmless with respect thereto. All work pursuant to this Section and all expenses hereunder or otherwise allocated to the Associaiton shall be paid for by the Association through assessments imposed in accordance herewith. No owner may waive or otherwise escape liability for the assessments for such maintenance by nonuse of the Common Areas.
5.5 Utility Easements. Public utilities shall be installedundergound in the Common Areas when necessary for the service of The Properties. The Developer and its affiliates and its and their designeesshall have the right also to install and maintain community and/or cable TV and security and other communications lines, equipment and material (and all future technological advances not now known) in the Developmentand perpetual easements are hereby reserved for the Developer and itsaffiliates and such designees over the Common Areas for this purpose. All use of utility, cable TV and communication easements shall be in accordance with the applicable provisions of this Declaration and any platsof The Properties.
5.6 Public Easements. Fire, police, health and sanitation andother public service personnel and vehicles shall have a permanent and perpetual easement for ingress and egress over and across the Common Areasin the performance of their respective duties.
6. LANDSCAPING AND PEDESTRIAN AREAS
6.1 Maintenance. Without limiting the generality of other provisions hereof, the Landscaping and Pedestrian Areas shall be maintainedby the Association, beginning upon the date these covenants are recorded,in a continuous and satisfactory manner without cost to the general taxpayers of Gulf County, and without direct, individual expense to the Ownersof the Lots upon which the Landscaping and Pedestrian Areas are situated or abut, except for their share of th general common expenses. Such maintenance shall extend to any street lighting fixtures and the payment for electricity consumed in thier illumination. All work pursuant to this Section and all expenses hereunder shall be paid for by the Association through assessments imposed in accordance herewith. No Owner may waive his right to use or otherwise escape liability for assessments for such maintenance under this section.
6.2 Limitations on Use. The Landscaping and Pedestrian Areas shall be used for the purposes of landscaping a planted screen buffer,and for installation and maintenance of undergound utilites and lines, and shall not be used by Owners of the respective Lots for parking or for any other purposes. No driveway access or vehicular access shall be permitted to any Lots across any Landscaping and Pedestrian Areas, except for access to the sales model areas.
7. COVENANT FOR MAINTENANCE ASSESSMENTS
7.1 Creation of the Lien and Personal Obligation of Assessments. The owner of any Lot by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant and agrees to pay to the Association: (1) annual assessments or charges, and (2) special assessments for capital improvements, such assessments to be established and collected as heeinafter provided. The annual and special assessments, together with interest, costs and reasonable attorneys’ fees, shall be a charge on and continuing lien upon the Lot against which cach such assessment is made. Each such assessment, together with interest, costs and reasonable attorneys’s fees, shall also be the personal obligation of the person-who was the Owner of such property at the time when the assessment fell due. Annual assessments may include reasonable reserves as the Association may deem hecessary, for the future repair, maintenance or improvement of the Common Areas. All assessments shall be imposed equally against all Lots within The Properties and those that may in the future be subject to liens of the Association. In the case of any multi-unit condominium or rental project located or to be located on any Lot, the Owner thereof shall be assessed for each Unit contained or expected to be contained (on the basis of building permits issued) in such multi-unit condominium or rental project as if each such existing (or pemitted) unit were a Lot for this purpose and he total of such assessments shall be a lien against the underlying Lot. In the case of condominiums, upon the filing in the public records of the decaration of condominiums therefor, each unit will become a separate Lot as provided in Article 2.2 hereof.
7.2 Purpose of Assessments. The assessments levies by the Association shall be used exclusively for maintenance, operation, management and insurance of the Common Areas as provided herein, the payment of expenses allocated to the Association security-related purposes and to promote the health, safety, welfare and recreational opportunities of the Members of the Association and their families residing with them and their tenants, agents and invitees.
7.3 Capital Improvements. Funds in excess of $10,000, in any one case, which are necessary for the addition of capital improvements (as distinguished from repairs and maintenance) relating to the Common Areas and which have not previously been collected as reserves or are otherwise available to the Association may be levied as special assessments by the Association upon approval by a majority of the favorable vote of Members voting at a meeting or by ballot as may be provided by the By-Laws of the Association. It is the intent of this Section that any capital improvements having a cost of less than $10,000 be paid for by regular assessments, with an approriate adjustment to the budget of the Association and the assessments levied thereunder to be made, if necessary.
7.4 Date of Commencement of Annual Assessments; Due Dates and Amounts. The annual assessments provided for in this Article shall commence on the first day of January, 1986. Each subsequent annual assessment shall be imposed for the year beginning January 1 and ending December 31 and will be payable in advance by January 31.
The due date of any special assessment or capital improvement assessment shall be fixed in the Board resolution authorizing such assessment and will be payable within 30 days of assessment.
The maximum annual assessment shall be $200 per year and may be increased each year thereafter by not more than 20% above the maximum assessment for the previous year without the approval of at least a majority of the members.
7.5 Duties of the Board of Directors. The Board of Directors of the Association shall fix the date of commencement and the amount of the assessment against each Lot for each assessment period, and shall, at that time, prepare a roster of the Owners thereof and assessments applicable thereto.Said roster shall be kept in the office of the Association and shall be open to inspection by any Owner.
Written notice of the applicable assessment shall be sent to every Owner thirty (30) days prior to payment, except as to emergency assessments. In the event no such notice is given, the assessment amount payable shall continue to be the same as the amount payable for the previous period until changed in the manner provided for herein.
The Association shall upon demand furnish to any Owner liable for an assessment a certificate in writing signed by a officer of the Association setting forth whether such assessment has been paid as to any particular Lot.
The Association, throught the action of the Board of Directors, shall have the power, but not the obligation, to acquire, by purchase, lease or otherwise, one or more Units for occupancy by its employees or independent contractors, and to enter into an agreement or agreements from time to time with one or more persons, firms or corporations (including affiliates of the Developer) for management services. The Association shall have all other powers provided in its Articles of Incorporation and By-Laws.
7.6 Effect of Non-Payment of Assessment; the Personal Obligation; the Lien; Remedies of the Association. If an assessment is not paid on the due date, then such assessment shall become delinquent and shall, together with late charges, interest and the cost of collection become a continuing lien on the appropriate Lot and shall bind such Lot in the hands of the Owner, his heirs, personal representatives, successors and assigns. Except as provided in Section 7.1 of this Article, the personal obligation of the Owner to pay such assessment shall pass to his successors in interest with recourse against the Owner or his successor’s.
All assessments, late charges, interest, penalites, fines, attorney’s fees and other sums provided for herein shall accrue to the benefit of the Association.
Owners shall be obligated to deliver the documents originally received from the Developer, containing this and other declarations and documents, to any grantee of such Owners.
The Association shall have such other remedies for collection and enforcement of assessments as may be permitted by applicable law. All remedies are intended to be cumulative.
7.7 Subordination of the Lien. The lien of the assessment provided for in this Article shall be subordinate to real property tax liens and to the lien of any first mortgage recorded prior to recordation of a claim of lien. The order of priority of liens hereunder shall be: tax liens, first mortgage liens, and the lien created herein.
7.8 Collection of Assessments. Assessments levied pursuant hereto shall be collected in the manner established by the Board of Directors.
7.9 Effect on Developer. Notwithstanding any provision that may be contained to the contrary in this instrument, for so long as Developer (or any of its affiliates) is the owner of any Lot or undeveloped property within The Properties, the Developer shall have the option, in its sole discretion, to (i) pay assessments on the Lots owned by it, (ii) pay assessments only on certain designated Lots (e.g.J those under construction or those containing a Unit for which a certificate of occupancy has been issued) or (iii) not paying assessment on any Lots and in lieu thereof funding any resulting deficit in the Association’s operation expenses not produced by assessments receivable from owners other than the Developer. The Deficit to be is the difference in the actual operating expenses of the Association (exclusive of capital improvement costs, reserves and management fees) less (ii) the sum of all monies receivable by the Association, (including, without limitation, assessments, interest, late charges, fines and incidental income) and less any surplus carried forward from the preceding year(s). The Developer may from time to time change the option stated above under which the Developer is making payments to the Association. If Developer at any time elects option (ii) above, it shall not be deemed to have elected option (iii) as to the Lots which are not designated under option (ii). When all Lots within The Properties are sold and conveyed to purchasers, neither the Developer, not its affiliates, shall have further liability of any kind of the Association for the payment of assessment, deficits or contributions.
7.10 Association Funds. The portion of all regular assessments collected by the Association for reserves for future expenses, and the entire amount of all special assessments, shall be held by the Association and may be invested in interest bearing accounts or in certificates of deposit or other like instruments or accounts available at banks or savings and loan institutions, the deposits of which are insured by and agency of the United States.
7.11 Specific Damage. Owners (on their behalf and on behalf of their children and guests) causing damage to any portion of the Common Areas as a result of misuse, negligence, failure to maintain or otherwise shall be directly liable to the Association and a special assessment may be levied therefor against such Owner or Owners.
8. RULES AND REGULATIONS
8.1 Compliance by Owners. Every Owner and his tenants, guests, invitees, employees and agents shall comply with any and all rules and regulations adopted by the Association as contemplated herein.
8.2 Enforcement. Failure to comply with such rules and regulations shall be grounds for immediate action which may include, without limitation, an action to recover sums due for damages, injunctive relief or any combination thereof. The Association shall have the right to suspend voting rights and use of Common Areas as specified herein.
8.3 Fines. In addition to all other remedies, in the sole discretion of the Board of Directors of the Association, a fine or fines may be imposed upon an Owner for failure of an Owner, his tenants, family, guests, invitees, employees or agents, to comply herewith or with any rule or regulation, provided the following procedures are adhered to:
(a) Notice: The Association shall notify the Owner of the infraction or infractions. Included in the notice shall be the date and time of a special meeting of the Board of Directors at which time the Owner shall present reasons why penalties should not be imposed. At least six (6) days’ notice of such meeting shall be given.
(b) Hearing: The non-compliance shall be presented to the Board of Directors after which the Board of Directors shall hear reasons why a fine should not be imposed. A written decision of the Board of Directors shall be submitted to the Owner by not late than twenty-one (21) days after the Board of Directors’ meeting. The Owner shall have a right to be represented by counsel and to cross-examine witnesses. If the impartiality of the Board is in question, the Board shall appoint three (3) impartial Members to a special hearing panel.
(c) Amounts of Fines: If findings are made against the owner, the Board of Directors may impose special assessments against the Lot owned by the Owner as follows:
(1) First non-compliance or violation: a fine not in excess of $100. (2) Second non-compliance or violation: a fine not in excess of $500. (3) Third and subsequent non-compliance, or violation or violations which are of a continuing nature: a fine not in excess of $1,000.
(d) Payment of Fines: Fines shall be paid not later than five (5) days after notice of the imposition or assessment of the penalties.
(e) Collection of Fines: Fines shall be treated as a special assessment subject to the provisions for the collection of assessments as set forth herein.
(f) Application of Fines: All monies recived from fines shall be allocated as directed by the Board of Directors.
(g) Non-exclusive Remedy: These fines shall not be construed to be exclusive, and shall exist in addition to all other rights and remedies to which the Associations may be otherwise legally entitled; however, any penalty paid by the offending Owner shall be deducted from or offset against any damages which the Association may otherwise be entitled to recover by law from such Owner.
8.4 Other rules and regulations (a). The Common Areas and facilities, if any, shall not be obstructed nor used for any purpose other than the purposes intended therefor. No carts, bicycles, carriages, chairs, tables or any other similar objects shall be stored therein. (b) The personal property of Owners must be stored in their respective Units or in outside storage areas approved by the Architectural Control Board.
(c) Other than garbage cans, no supplies, milk bottles or other articles shall be placed on the exterior portions of any Unit or Lot and no linens, cloths, clothing, curtains, rugs, mops, or laundry of any kind, or other articles, shall be hung from or on the Unit or Lot, except as provided in this declaration.
(d) Employees of the Association are not to be sent out by Owners for personal errands. The Board of Directors shall be solely responsible for directing and supervisiing employees of the Association.
(e) No motor vehicle which cannot operate on its own power shall remain on The Properties for more than twenty-four (24) hours. No portion of the Common Areas may be used for parking purposes, except those portions specifically designed and intended therefor.
Areas designated for guest parking shall be used only for this purpose and neither Owners nor occupants of Units shall be permitted to use these areas.
Vehicles which are in violation of these rules and regulations shall be subject to being towed by the Association as provided in the Declaration, subject to applicable laws and ordinances. (f) No Owner shall make or permit any disturbing noises in the Unit or on the Lot by himself or his family, servants, employees, agents, visitors ro licensees, nor permit any conduct by such persons that will interfere with the rights, conforts or convenience of other Owners, No Owner shall play or permit to be played any musical instrument, nor operate or permit to be operated a phonograph, television, radio or sound amplifier or any other sound equipment in his Unit or on his Lot in such a manner as to disturb or annoy other residents (applying reasonable standards). No Owner shall conduct, nor permit to be conducted, vocal or instrumental instruction at any time which disturbs other residents.
(g). No electronic equipment may be permitted in or on any Unit or Lot which interferes with the television or radio reception of another Unit.
(h). No awning, canopy, shutter, enclosure sattelite dish on other projection shall be attached to or placed upon the outside wall or roof of the Unit or on the Lot, except as approved by the Architectural Control Board.
(i). No Owner may alter in any way portion of the Common Areas, including, but not limited to, landscaping, without obtaining the prior written consent of the Architectural Control Board.
(j). Except as provided in sub paragraph (u), no commercial use shall be permitted in the Development even if such use would be permitted under applicable zoning ordinances.
(k). No flammable, combustible or explosive fluids, chemicals or substances shall be kept in any Unit, on a Lot or on the Common Areas, except as to gas cylinders permitted under the Declaration.
(1). An Owner who plans to be absent during the hurricane season must prepare his Unit and Lot prior to his departure by designating a responsible firm or individual to care for his Unit and Lot should the Unit suffer hurricane damage. The owner must furnish the Association with the name(s) of such firm or individual.
(m). An Owner shall not cause anything to be affixed or attached to, hung, displayed or placed on the exterior walls, doors, balconies or windows of his Unit without the prior written approval of the Architectural Control Board.
(n). Children will be the direct responsibility of their parents or legal guardians, including full supervision of them while within The Properties and including full compliance by them with these Rules and Regulations and all other rules and regulations of the Association. Loud noises will not be tolerated. All children under twelve (12) years of age must be accompanied by a responsible adult when entering and/or utilizing recreation facilities,
(o). Pets and other animals shall neither be kept nor maintained in or about The Properties except in accordance with the Declaration and with the following:
No pet shall be permitted outside of its Owner’s Unit or Lot unless attended by an adult or child of more than ten (10) years of age and said pet must be on a leash of reasonable length, unless it can be demonstrated that said pet is disciplined to its attendents voice command and will not interfere with the privacy of any person or their property. In no event shall said pets ever by allowed to be walked or taken on or about any recreational facilities contained within the Common Areas.
(p). No use of firearms shall be permitted anywhere in The Properties unless in a designated rifle or skeet range.
(q). Every Owner and occupant shall comply with these rules and regulations as set forth herein, any and all rules and regulations which from time to time may be adopted, and the provisions of the Declaration, By-Laws and Articles of Incorporation of the Association, as amended from time to time. Failure of an Owner or occupant to comply shall be grounds for action which may include, without limitation, an action to recover sums due for damages, injunctive relief, or any combination thereof. The Association shall have the right to suspend voting rights and use of recreation facilities, in the event of failure to comply. In addition to all other remedies, in the sole discretion of the Board of Directors of the Association, a fine or fines may be imposed upon an Owner for failure of an Owner, his tenants, family, guests, invitees or employees, to comply with any covenant, restriction, rule or regulation herein or in the Declaration, or Articles of Incorporation or By-Laws, as provided in the Declaration.
(r). No well or septic system shall be constructed or maintained on any Lot when ever water and sewer connections and facilities are available to the Lot.
(s). All electrical lines and telephone lines shall be run underground.
(t). All aircraft shall have the right-of-way when taxiing on designated roadways or taxiways. Aircraft shall run up only in designated areas. But in any event, the “run up” shall not be done in such a manner as to cause damage to the property of others. FAA regulations will be strictly enforced for the protection of the property owner.
(u). All Lots in Phase I are to be single family Lots with the exception of those Lots adjoining West Rutherford road which will be used for Commercial purposes.
(v). If any installment of an assessment is not paid within Thirty (30) days after the due date, at the option of the Association, a 20% late charge may be imposed and the Association may bring an action at law against the Owner(s) personally obligated to pay the same or may record a claim of lien against the property on which the assessments and late charges are unpaid, or may foreclose the lien against the propertyl on which the assessments and late charges are unpaid, or pursue one or more of such remedies at the same time or successively, and attorneys’ fees and costs of preparing and filing the claim of lien and the complaint (if any) in such action, and in prosecuting same, shall be added to the amount of such action, and in prosecuting same, shall be added to the amount of such assessments, along with interest at 18% per annum from the due date of the assessment. In the event a judgment is obtained, such judgment shall include all such sums as above provided and attorney’s fees actually incurred in the applicable action together with the costs of the action, and the Association shall be entitled to attorney’s fees in connection with any appeal of any such action.
(w). In addition to the rights of collection of assessments stated in this Section, any and all persons acquiring the title to or the interest in a Lot as to which the assessment is deliquent, including, without limitation, persons acquiring title by operation of law and by judicial sale, shall not be entitled to the occupancy of such Lot or the enjoyment of the Common Areas until such time as all unpaid and delinquent assessments due and owing from the selling Owner have been fully paid, and no sale or other dispostion of Lots shall be permitted until an estoppel letter is received from the Association acknowledging payment in full of all assessments and other sums due.
(x). It shall be the legal duty and responsibility of the Association to enforce payment of the assessments hereunder. Failure of the Association to send or deliver bills or notices of assessments shall not,however relieve Owners from their obligations hereunder.
(y). Easements and setback requirements are as follows:
(1) A 25-foot clear zone easement along all lots lines fronting the outer boundaries of the taxiway or runway. This easement is for a safety zone and no aircraft; trees or other obsticles are allowed in this area.
(2) A 6-foot easement along all sides of all lots and along all sides adjoining any designated street is reserved for underground utility and or drainage purposes.
(3) A 10-foot easement along the rear (western) boundary of all lots in Block A and B of the unrecorded plat is reserved for a drainage or underground utility easement and for the purpose of erecting (if desired by the Association) a privacy fence or hedge.
(4). No house or building may be constructed within 50 feet of the centerline of any designated street or within 30 feet of any taxiway or runway boundary.
(5). The maintenance of all drainage easements, privacy fences or hedge rows is the responsibility of the Association. If the easements are not currently being used for one of the above purposes, then the individual property owner is responsible for maintenance.(Mowing, Raking, etc.)
9. ARCHITECTURAL CONTROL; GENERAL POWERS
9.1 Members of Committee. The Architectural Control Committee, sometimes referred to in this Declaration as the “Committee” shall consist of three (3) members. The initial members of the Committee shall consist of three (3) persons designated by the Developer. Each of the initial members shall hold office until all Lots and improvements planned for the Development have been constructed and conveyed (if appropriate), or sooner at the option of Developer. Thereafter, each new member of the Committee shall be appointed by the Board of Directors and shall hold office until such time as he ha8 resigned or has been removed or his successor has been appointed, as provided herein. Members of the Committee may be removed at any time without cause. The Board of Directors shall have the right to appoint and remove all members of the Committee.
9.2 Review of Proposed Construction. No building, fence, wall or other structure or improvement shall be constituted on any Lot until the plans and specifications are approved in writing by, the Committee. If elements of a condominium, said approval shall also be subject to the prior approval by the Committee of the applicable condominium association. The Committee may condition its approval of proposals and plans and specifications as it deems appropriate, and may require submission of additional plans and specification or other information prior to approving or disapproving material submitted. The Committee may also issue rules or guidelines setting forth procedures for the submission of plans for approval. The Committee may require such detail in plans and specifications submitted for floor plans, site plans, drainage plans, elevation drawings and descriptions or samples of exterior materials and colors. Until receipt by the Committee of any required plans and specifications, the Committee shall have thirty (30) days after delivery of all required materials to approve or reject any such plans, and if not rejected within such 30-day period, said plans shall be deemed approved. The Committee herein shall be the ultimate deciding body and its decisions shall take precedence over all others.
All plans including any changes or alterations shall also be subject to all applicable governmental laws, statutes, ordinances, rules, regulations, orders and decrees.
9.3 Meetings of the Committee. The Committee shall meet from time to time as necessary to perform its duties hereunder. The Committee may from time to time, by resolution unanimously adopted in writing, designate a Committee representative (who may, but need not, be one of its members) to take any action or perform any duties for and on behalf of the Committee, except the granting of variances pursuant to Article 9 hereof. In the absence of such designation, the vote of any two (2) members of the Committee shall constitute an act of the Committee.
9.4 Compensation of Members. The members of the Committee shall receive reasonable compensation for services rendered, as well as reimbursement for expenses incurred by them in the performance of their duties hereunder.
9.5 Inspection of Work. Inspection of work and correction of defects therein shall proceed as follows:
(a) Upon the completion of any work for which such approval plans are required under this Article, the applicant for such approval (the Applicant) shall give written notice of completion to the Committee.
(b) Within sixty (60) days thereafter, the Committee or its duly authorized representative may inspect such improvement. If the Committee finds that such work was not effected in substantial compliance with the approved plans, it shall notify the Applicant in writing of such non-compliance within sixty (60) day period, specifying the particulars of noncompliance, and shall require the Applicant to remedy the same.
(c). If, upon the expiration of thirty (30) days from the date of such notification, the Applicant shall have failed to remedy such non-compliance, the Committee shall notify the Board in writing of such failure. The Board shall then determine whether there is a non-compliance and, if so, the nature thereof and the estimated cost of correcting or removing the same. If a noncompliance exists, the Applicant shall remedy or remove the same within a period of not more than forty-five (45) days from the date of announcement of the Board ruling. If the Applicant does not comply with the Board ruling within such period, the Board, at its option, may either remove the non-compliance improvement or remedy the noncompliance, and the Applicant shall reimburse the Association, upon demand, for all expenses incurred in connection therewith, plus an administrative charge to be determined by the Association. If such expenses are not promptly repaid by the Applicant to the Association, the Board shall levy a special assessment against such Applicant and his property for reimbursement.
(d). If for any reason the Committee fails to notify the Applicant of any non-compliance within sixty (60) days after receipt of said written notice of completion from the Applicant the improvement shall be deemed to have been made in accordance with said approved plans.
9.6 Non-Liability of Committee Members. Neither the Committee nor any member thereof, nor its duly authorized Committee representative, shall be liable to the Association, or to any Owner or any other person or entity for any loss, damage or injury arising out of or in any way connected with the performance of the Committee’s duties hereunder. The Committee shall review and approve or disapprove all plans submitted to it for any proposed improvement, alteration or addition solely on the basis of aesthetic consideration and the benefit or detriment which would result to the immediate vicinity and to Cape Plantation and the overrall Development. The Committee shall take into consideration the buildings, landscaping, color schemes, exterior finishes and material and similar features, but shall not be responsible for reviewing, nor shall its approval of any plan or design be deemed approval of, or warranty as to, any plan or design from the standpoint of structural safety or conformance with building or other codes.
9.7 Designation of Minimum and Maximum Living Area. The Committee must designate the following requirements unless changed by unanimous vote of the Board of Directors.
(a). The minimum living area of a dwelling on terms of heated space shall be (1) 1200 square feet for buildings on Lots less then 1/2 acre and 1400 feet for Lots 8reater then l/2 acre (2) 900 square feet for any condominiums, townhouse or cluster home arrangement.
(b). The maximum living area in terms of heated space shall be 3500 square feet.
9.8 Variance. The Committee may authorize variances from compliance with any of the architectural provisions of this Declaration when circumstances such as topography, natural obstrictions, hardship, aesthetic or environmental considerations require. Such variance must be evidenced in writing which must be signed by at least two (2) members of the Committee. No variance shall effect in any way the Owner’s obligation to comply with all governmental laws and regulations, including, but not limited to, zoning ordinances and setback lines or requirements imposed by any governmental or municipal authority.
9.9 Exemptions. Developer and its affiliates shall be exempt from the provisions hereof with respect to alterations and additions desired to be effected by any of them and shall not be obligated to obtain Committee approval for any construction or changes which any of them may elect to make at any time.
10. GENERAL PROVISIONS
10.1 Duration. The covenants and restrictions of this Declaration shall run with and bind The Land, and shall inure to the benefit of and be enforceable by the Developer or the Association, the Owner of any land subject to this Declaration and the committee, and their respective legal representatives, heirs, successors and assigns, for a term of Twenty-nine (29) years from the date this Declaration is recorded, after which time said covenants shall be automatically extended for successive periods of ten (10) years unless an instrument signed by the then Owners of twothirds, of the Lots and living Units has been recorded agreeing to change said covenants and restrictions in whole or in part. No such agreement to revoke shall be effective unless made and recorded three (3) years in advance of the automatic extension period.
10.2 Notice. Any notice required to be sent to any Member or Owner under the provisions of this Declaration shall be deemed to have been properly sent when personally delivered or mailed, postpaid, to the last known address of the person who appears as Member or Owner on the records of the Association at the time of such mailing.
10.3 Enforcement. Enforcement of these covenants and restrictions shall be accomplished by means of a proceeding at law or in equity against any person violating or attempting to violate any covenant or restriction.
10.4 Severability. Invalidation of any one of these covenants or restrictions or any part, clause or word hereof, or the application thereof in specific circumstances, by judgement or court order shall not effect any other provisions or applications in other circumstances, all of which shall remain in full force and effect.
10.5 Amendment. In addition to any other manner herein provided for the amendment of this Declaration, the covenants, restrictions, easements, charges and liens of this Declaration may be amended, changed, or added to at any time and from time to time upon the execution and recordation of an instrument executed by the Developer, for so long as it or its affiliates holds title to any Lot or Unit affected by this Declaration, or alternatively, by approval at a meeting of Owners holding not less than 66-2/3% of the votes of the membership of the Association, provided that so long as the Developer or its affiliates is the Owner of any Lot affected by this Declaration, the Developer’s consent must be obtained if such amendment, in the sole opinion of the Developer, affects its interest.
10.6 Conflict. This Declaration shall take precedence over conflicting provisions in the articles of Incorporation and By-Laws of the Association and the Articles shall take precedence over the By-Laws.
10.7 Effective Date. This Declaration shall become effective upon its recordation in the Gulf County Public Records.
10.8 CPI. Whenever specific dollar amounts are mentioned in this Declaration, or (unless limited by law) such amounts will be increased from time to time by application of a nationally recognized consumer price index.
10.9 Covenants Running with the Land. It is the intention of all parties affected hereby and their respective heirs, personal representatives, successors and assigns) that these covenants and restrictions shall run with the land and with title to the properties.
AMENDMENTS TO GENERAL DECLARATION OF COVENANTS, CONDITIONS AND COVENANTS
of Cape Plantation Homeowners’ Association recorded at Gulf County Courthouse in Book 107, page 1058-72 on September 16, 1985.
Pursuant to Article 10.5 the following Amendments are applicable:
Article 3.1 is Amended to Read:
3.1 Legal Description. The initial real property which is and shall be held, transferred, sold, conveyed and occupied subject to this Declaration is located in Gulf County, Florida, and is more particularly described as: An unrecorded subdivision of a portion of Section 25, Township 8 South, Range 11 West, Gulf County, Florida and being more particularly described as follows:
Commencing at the NE corner of Section 25, Township 8 South, Range 11 West; thence South (assumed) along the East line of said Section 25 for 32 feet to a concrete monument on the South right-of-way line of West Rutherford Road (66 feet as wide as occupied); Thence 5.8942’30” W along said right-ofway line 399.66 feet for the POINT OF BEGINNING; thence 5.2 26’47” W 2646.41 feet; thence N 8733’13” W 214.66 feet; thence n 712’50” E 296.62 feet to a concrete monument; thence N 4936’00” W 263.28 feet to a concrete monument; thence S 6328’45” W 111.38 feet to a concrete monument; thence N 2216.66 feet to an iron rod on the South right-of-way line of said Rutherford Road; thence N 8942’30” E along said right-of-way line of said road for 590.34 feet to the point of beginning. (New description).
Containing 29.669 acres, more or less.
A Plat of said property is attached hereto as Exhibit “A” and by this reference made a part hereof for all purposes.
Article 8.4 (u) is Amended to Read:
All lots in Phase I are to be single family lots with the exception that Lot C-l and CC-1 (adjacent to C-l and bordering West Rutherford Road) will be designated commercial. Also, the Eastern one-half of Lot 5-C will be “Limited Commercial” which will specifically allow up to two aircraft to be operated in a commercial fish spotting business.
Article 8.4 (y) will have the following additions:
(6) A ten foot landscape/fence easement will be reserved along the boundary of West Rutherford Road.
(7) No house or building may be constructed within ten feet of the rear or side lot lines.
Article 8.4 (z) will be added as follows:
Only lots in Section C and D of Phase I will be allowed to have on-site aircraft parking and no more than one aircraft will be allowed on each lot unless jointly approved by the Architectual Control Committee and Costin Aviation, Inc.
Article 8.5 will be added as follows
Construction Phase: All homes must be completed and landscaped within one (1) year after construction begins.