AMENDED AND RESTATED DECLARATION OF COVENANTS AND RESTRICTION FOR SANDY CREEK AIRPARK
Section 1. “Amended and Restated Declaration” shall mean the covenants, conditions and restrictions and all other provisions herein set forth in this entire Document, as may from time to time be amended.
Section 2. “Association” shall mean and refer to SANDY CREEK AIRPARK OWNERS ASSOCIATION, INC., its successors and assigns .
Section 3. “Declarant” shall mean and refer to SANDY CREEK AIRPARK, INC., a Florida corporation, its assigns, or any successor or assignee to all or substantially all of its interest in the Sandy Creek Airpark Development.
Section 4. “Development” or “Sandy Creek Airpark Development” shall mean those tracts or parcels of land described in Exhibit A together with all improvements thereon and upon submission to the provisions of this Amended and Restated Declaration the tracts or parcels of land described in Exhibit B or any portion thereof, together with all improvements thereon.
Section 5. “Additional Properties” shall mean and refer to all real property described in Exhibit “B” which become subject to the Amended and Restated Declaration.
Section 6. “Plat” shall mean and refer to that Plat of the SANDY CREEK AIRPARK as recorded in Plat Book 14, at page 11, of the Public Records of Bay County, Florida. Unless otherwise indicated, Plat shall also include any Plat that may be recorded in the future which subdivides all or any part of the Additional Property described on Exhibit B.
Section 7. “Common Area” shall mean and refer to the area of land shown on a Plat as Common Area and any land acquired by the Association, whether fee simple or some lesser interest, for the use and enjoyment of Owners. Common Area presently includes the Air Strip and Air Park Boulevard which are owned by the Association
There shall be no judicial partition of existing or future Common Area nor shall Declarant, any Owner or any other person or entity acquiring any interest in the Development or any part thereof seek judicial partition thereof. However, nothing contained herein shall be construed to prevent judicial partition of any Lot or Commercial Tract owned in co-tenancy.
Section 8. “Living Unit” shall mean and refer to any portion of a structure situated upon a Lot designed and intended for use and occupancy as a residence by a single family.
Section 9. “Lot” shall mean and refer to any plot of land shown or designated as a Lot upon a Plat. Those Lots shown on the Plat recorded at Official Records Book 14, Page 11 and labeled “not included” shall nevertheless be considered Lots as that term is defined herein and the Owners of such Lots shall be entitled to all the benefits afforded by and shall be obligated by and subject to the terms and provisions of this Amended and Restated Declaration as fully as if their Lot had not originally been labeled “not included”, and such Owners agree to be bound and obligated by the terms hereof as evidenced by their participation in and enjoyment of the benefits of being an Owner and Member.
Section 10. “Commercial Tract” shall mean and refer to any plot of land shown or designated as a Commercial Tract upon any Plat or by separate instrument executed solely by Declarant and recorded in the public records of Bay County, Florida. Lots may be designated by Declarant as Commercial Tracts. Commercial Tract uses shall be limited to uses that are useful or related to aircraft, aircraft usage or aircraft operations and maintenance.
Section 11. “Property” shall mean and is used herein to refer to both Lots and Commercial Tracts.
Section 12. “Owner” shall mean and refer to the recorded Owner, whether one or more persons or entities, of the fee simple title to any Property, but excluding those having such interest merely as security for the performance of an obligation.
Section 13. “Air Strip” shall mean that property described in Section 7 above as the Air Strip.
Section 14. “Access Roads” or “Taxiways” shall mean those rights-of-way radiating from the Air Strip or otherwise as shown on the Plat for the purpose of providing access for civil aircraft to and from the Air Strip and adjoining facilities. Air Park Boulevard is an Access Road or Taxiway.
Section 15. “Development Period” shall mean the period from September 20, 1983 when the Declaration was recorded in Bay County Public Records until Declarant has closed the sale of all Lots and Commercial Tracts planned for the Sandy Creek Airpark Development.
Plan of Development
Section 1. Property Subject to this Amended and Restated Declaration. Sandy Creek Airpark is a planned development that includes an Air Strip for private civil aircraft in a residential community with aircraft-related, light commercial activities. The purpose of these covenants, conditions and restrictions is to enhance and protect the value, attractiveness and desirability of the Property. The real property which is and shall be held, transferred, sold, conveyed, and occupied and used subject to this Amended and Restated Declaration is located in Bay County, Florida and is more particularly described in Exhibit “A”.
Section 2. Plan of Development of Additional Properties. Declarant hereby reserves the option, to be exercised in its sole discretion, to submit from time to time the Additional Properties as described in Exhibit “B” or a portion or portions thereof to become part of the Development. This option may be exercised by Declarant in accordance with the following rights, conditions, and limitations, which are the only conditions and limitations on such option to add all or any portion of the Additional Properties to the Development:
(a) Annexation Period. The option may be exercised from time to time during a period of ten (10) years from the date of the recording of this Amended and Restated Declaration; provided, however, that Declarant reserves the right to terminate such option as to the Additional Properties or any portion of the Additional Properties at any time prior to the expiration of such ten (10) year period by executing and filing a supplement to this Amended and Restated Declaration evidencing such termination in the real property records of Bay County, Florida, and except for such termination by Declarant, no other circumstances will terminate such option prior to the expiration of such ten (10) year period.
(b) Flexible Additions to Property. Portions of the Additional Properties may be added to the Development at different times and there are no limitations fixing the boundaries of those portions or regulating the order, sequence, or location in which any of such portions may be added to the Development. The exercise of the option to submit a portion of the Additional Properties to the Amended and Restated Declaration shall not bar the further exercise of this option as to other portions or the balance of the Additional Properties.
(c) Expiration of Annexation Rights. Should the option to add the Additional Properties, or any portion thereof, not be exercised within the term specified herein or be terminated by Declarant, such option shall in all respects expire and be of no further force and effect. In the event that such option expires or is terminated, as aforesaid, Declarant shall not be obligated to impose on the Additional Properties or any portion thereof any covenants, conditions, or restrictions the same as or similar to those contained herein and Declarant shall be free to develop the Additional Properties as it deems fit.
(d) No Obligation to Annex. The option reserved by Declarant to cause all or any portion of the Additional Properties to become part of the Development shall in no way be construed to impose upon Declarant any obligation to add all or any portion of the Additional Properties to the Development or to construct thereon any improvements of any nature whatsoever.
(e) Costs. Costs pertaining to the development and construction of new Roadways and Taxiways to be included in any part of the Additional Properties shall be the exclusive responsibility of the Declarant. The Declarant reserves the right, in its sole discretion, to determine the type, extent and location of Roadways and Taxiways, if any, to be included in any part of the Additional Properties.
The option reserved under this Section 2. may be exercised by Declarant only by the execution of an amendment to this Amended and Restated Declaration which shall be filed in the public records of Bay County, Florida. Declarant shall convey to the Association by quit claim deed the Common Area, if any, contained within the Additional Properties, or such portion thereof at such time as it deems fit. Any such amendment shall expressly submit the Additional Properties or such portion thereof to all the provisions of this Amended and Restated Declaration, and upon the exercise, if any, of such option or options, the provisions of this Amended and Restated Declaration shall then be construed as embracing the real property described in Exhibit “A” and the Additional Properties or such portion or portions thereof so submitted to the terms hereof, together with all improvements located thereon. If the Additional Properties or any portion or portions thereof is added to the Development, then from and after such addition, the number of votes in the Association shall be increased by the number of Lots or Commercial Tracts platted and located on the Additional Properties or such portion or portions thereof as are added so that there shall continue to be one vote in the Association per Lot or Commercial Tract in the Development. Provided, however, in no event shall the combined number of Lots and Commercial Tracts included in Sandy Creek Airpark Development exceed a total of 250.
Section 3. Restrictions Applicable to Additional Properties. The Additional Properties described on Exhibit B shall be held, transferred, sold, conveyed and occupied and used subject to the restrictions set forth below:
(a) Except for reasonable periods of construction, no temporary house, shack, mobile home or tent shall be erected.
(b) No nuisance shall be permitted to exist or operate upon any of the Additional Properties so as to be detrimental to any other property in the vicinity or its occupants.
(c) All electrical lines and telephone lines shall be run underground.
(d) No tourist courts, overnight cabins or rental units shall be constructed.
The restrictions mentioned above shall apply to the Additional Properties described on Exhibit B immediately whether or not the Additional Properties or any part thereof shall be annexed to and become a part of Sandy Creek Air Park Development.
Membership and Voting Rights
Section 1. Members. Every person or entity who is a record Owner of a fee or undivided fee interest in any Property which is subject to this Amended and Restated Declaration is a member of the Association. The foregoing is not intended to include persons or entities who hold an interest merely as Lessee or as security for the performance of an obligation. All Members of the SANDY CREEK AIRPARK OWNERS ASSOCIATION, INC., shall be governed and controlled by this Amended and Restated Declaration, the Articles of Incorporation and the By-Laws of the Association as they may be amended from time to time.
Section 2. Voting Riqhts. The Association shall have one class of voting membership which shall be all Owners of Lots and Commercial Tracts. There shall be onei(l) vote for each Lot and one (1) vote for each Commercial Tract.
Section 3. Suspension. Voting rights of any Member may be suspended for periods during which assessments are delinquent.
Section 1. Obligations of the Association. The Association, subject to the rights of the Declarant and Owners set forth in this Amended and Restated Declaration, shall be responsible for the exclusive management and control of the Common Area and all improvements thereon (including furnishings and equipment related thereto), shall pay all real property ad valorem and personal property ad valorem taxes and shall keep said premises in good, clean, attractive and sanitary condition, order and repair.
Section 2. Members’ Easement of Enjoyment. Subject to the provisions of the Amended and Restated Declaration, every Owner shall have a right and easement of enjoyment in and to the Common Area which shall be appurtenant to and shall pass with the title to every Property interest and every Member shall have a right to enjoyment of the Common Area.
Section 3. Extent of Members’ Easements. The Members’ easements of enjoyment created hereby shall be subject to the following:
(a) the right of the Association to establish reasonable rules and to charge reasonable admission and other fees for the use of the Common Area;
(b) the right of the Association to suspend the right of an Owner to use the Common Area for any period during which any assessment against his Property remains unpaid for more than thirty (30) days after notice; the right of the Association to suspend the right of a Member to use the said Common Area, for a period not to exceed sixty (60) days, for any other infraction of this Amended and Restated Declaration or the Rules and Regulations of the Association;
(c) the right of the Association to mortgage any or all of the property constituting or the facilities constructed on the Common Area (except for the Air Strip, Access Roads and Taxiways as they now or may later exist, which may not be mortgaged) for the purposes of improvements or repair to the Common Area or facilities located therein pursuant to approval of a majority of the votes of the Members who are voting in person or by proxy at a regular meeting of the Association or at a meeting duly called for this purpose; however, the Directors shall have the power to approve or disapprove such mortgage by majority vote during the Development Period;
(d) the right of the Association to dedicate or transfer all or any part of the Common Area (except for the Air Strip, Access Roads and Taxiways as they now or may later exist which shall not be dedicated or transferred) to any local public body, public agency, authority, utility or cable television company for such purposes and subject to such conditions as may be agreed to by a majority of the Members. However, the directors shall have the power to agree to such dedication or transfer by majority vote during the Development Period and no approval of the Members shall be required. No such dedication or transfer shall be effective unless an instrument signed by the appropriate Officers of the Association agreeing to such dedication or transfer, has been recorded in the Public Records of Bay County, Florida.
(e) the right of the Association after reasonable notice to the owner thereof, to enter any lot at any reasonable hour on any day to perform such maintenance as may be authorized herein.
Section 4. Delegation of Use. Any Property Owner may delegate, in accordance with the By-Laws, his right of enjoyment to the Common Area and facilities to the Members of his family, his guests, his tenants, or contract purchasers who reside on the property, subject to such general regulations as may be established from time to time by the Association.
Section 5. Air Strip. The Air Strip, as it may be configured from time to time, is for the use, maintenance, enjoyment and benefit of the Members hereof. The Declarant has the option, but is not obligated, to lengthen the Air Strip by adding more property to the existing Air Strip parcel provided the Declarant shall bear the expense of improving such addition which shall be of like kind and quality as the then existing Air Strip.
(a) Use. All Members and their guests shall have the right to use the Air Strip, Access Roads and Taxiways for civil aircraft subject to limitations which may hereinafter be imposed by the Association and the terms, conditions, limitations and restrictions contained in this Amended and Restated Declaration of Covenants and Restrictions. In addition, the Declarant, its successors and assigns, expressly reserve the right during the Development Period to grant permission to such other persons as it may elect to use the aforementioned facilities for the purpose of promoting and marketing the Property.
(b) Rules and Regulations. The Association shall have the right to adopt and enforce reasonable rules and regulations with respect to the use of the Air Strip, provided that such rules and regulations shall not conflict with any provision of this Amended and Restated Declaration and provided further that such rules and regulations shall be consistent with good safety practices and with all Federal, State and local statutes, rules and regulations and ordinances with respect to civil aircraft operations on private airport facilities. The use of the Air Strip within Sandy Creek Airpark shall also be subject to the following:
(1) No jet aircraft shall be allowed the use of the Air Strip at Sandy Creek Airpark.
(2) No aircraft shall be parked on any part of the Air Strip and all aircraft parked or left for any period of time unattended within Lots shall be securely tied down. If any aircraft is found within any Lot, not tied down and unattended, the Association or the Declarant or its agents may, but are not obligated to secure it at the expense of the Owner of said aircraft.
(c) Withholding of Use. The Association shall have the right to withhold from, restrict or charge an individual assessment for the use of the Common Area, including the Air Strip to any Owner:
(1) who is in default in the payment of any assessment fee; or
(2) who, in the judgment of the Board of Directors of the Association, uses the Common Areas or his aircraft in a negligent manner or in a manner harmful to the rights of other users; or
(3) who, in general, violates the published rules and regulations of the Association.
(4) Such individual assessments shall not exceed $50.00 per use.
(d) Management Agreement. The Association, with the consent of Declarant during the Development Period, shall have the right to enter into an agreement with any individual, firm, corporation or other entity to provide for the full-time management and operation of the Air Strip and related facilities. The cost of such management shall be included within the annual assessment.
(e) Insurance. Each Property Owner, his guests or tenants, are encouraged and expected to obtain and maintain adequate aircraft personal injury and property damage insurance for the operation of civil aircraft owned or leased by such person.
Section 6. Development of Tie-Down Area.
(a) The Declarant may, but is not obligated to, develop a Tie-Down Area. If such development occurs, Declarant reserves the right to further amend this Amended and Restated Declaration to provide for certain restrictions as to the Tie Down Area and all Owners shall be subject to such Restrictions. Any such Amendment needs to be signed and acknowledged only by the Declarant and need not be approved by the Association, Members, the Owners of any Property or by any lienors or mortgagors of any Property, whether or not elsewhere required for an Amendment.
(b) Rules and Regulations for Use of Tie Down Area. If Declarant develops a Tie-Down Area, Declarant also reserves the right to promulgate rules and regulations for the use of such area, provided that such rules and regulations serve to conserve, maintain and enhance the appearance of Sandy Creek Airpark Development.
Section 7. Access Roads and Taxiways. Access Roads and Taxiways as shown on the Plat are for the purpose of providing access for civil aircraft to and from the Air Strip and adjoining facilities that may exist. The Association shall have the responsibility and obligation to maintain and repair Access Roads and Taxiways, the expense of which shall be paid from annual or special assessments. Access Roads and Taxiways designated on any Plat sub-dividing any of the Additional Property shall be used by Owners in a similar fashion.
(a) Rules, Regulations and Supervision. The Association is empowered to adopt reasonable rules and regulations regarding the supervision, maintenance, control, regulation and use of the Access Roads and Taxiways, and to enforce the same in any lawful manner, but same shall be consistent with the following:
(1) Aircraft shall taxi on those areas designated as Access Roads and Taxiways only.
(2) It shall be the duty of all Property Owners to keep all Access Roads and Taxiways designated on the Plat at all times free and clear of children, dogs, cats, household pets, machines of every nature and description, baby carriages, bicycles, carts and any and all other items which might or could serve as obstructions or hazards or which might or could interfere with the use of such designated areas by aircraft.
(3) Access Roads and Taxiways shall not be regraded, ditched or obstructed with lights, landscaping, mailboxes, fences or any other item which might or could interfere with the use of the Taxiways by aircraft.
Covenants for Maintenance Assessments
Section 1. Creation of the Lien and Personal Obligation of Assessments. Each Owner of Property, by acceptance of a deed thereto, whether or not it shall be so expressed in such deed, or by joining in this Amended and Restated Declaration or by participation as and enjoyment of the benefits of being an Owner and Member, is deemed to covenant and agree to pay the Association the following: (1) annual assessments; (2) special assessments for capital improvements; and (3) individual assessments, such assessments to be established and collected as hereinafter provided.
All such assessments, together with interest thereon and costs of collection thereof, including reasonable attorneys’ fees, as hereinafter provided, shall be a charge on each Owner’s Property and shall be a continuing lien upon the Property against which each such assessment is made. Each such assessment, together with interest thereon and costs of collection thereof, including reasonable attorneys’ 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. All liens created under this Amended and Restated Declaration may be foreclosed in equity in the same manner as is provided for the foreclosure of mortgages upon real property. Said lien shall be effective from and after the time of recording in the Public Records of Bay County, Florida, of a claim of lien stating the description of the Property, the name of the record Owner, the amount due and date when due and the lien shall continue in effect until all sums secured by the lien shall have been fully paid. Such claims of lien shall include any unpaid assessments which are due and payable to the Association, when the claim of lien is recorded together with assessments that may accrue and remain unpaid upon entry of final judgment in any legal proceeding to collect the unpaid assessments, together with interest at the highest rate allowed by law and all costs incurred and sustained by the lien claimant in perfecting and enforcing such lien, including reasonable attorneys’ fees and costs. Upon full payment, the Owner shall be entitled to a recordable satisfaction of lien.
Section 2. Annual Assessment.
(a) Purpose of Assessment. Annual assessments shall be made for the purpose of maintenance and management of property which is required by this Amended and Restated Declaration to be maintained by the Association and to operate the Association. Maintenance and management expenses shall include, but need not be limited to, the cost and expense of operation, maintenance and management of the Association, its property and the Common Areas including but not limited to the Air Strip, Access Roads and Taxiways; real and personal property ad valorem taxesandassessments against the Association’s property and the Common Areas; insurance premiums for fire, windstorm and extended coverage; insurance on the Association’s real property and personal property and Common Areas; premiums for public liability insurance and other insurance coverages deemed appropriate by the Association Board of Directors; legal and accounting fees; management fees; operating expenses of the Association’s property, Common Areas and the Association; maintenance, repairs and replacement of the Association’s property and Common Areas; charges for utilities and water used by the Association; cleaning services; expenses and liabilities incurred by the Association in and about the enforcement of its rights and duties against Owners or others; and the creation of reasonable cash reserves for contingencies to protect the Owners Association, property and Common Areas; maintenance requirements; and all other expenses deemed by the Directors of the Association to be necessary and proper for the management, maintenance and repair of its property and the Common Areas and for the operation of the Association.
(b) Basis for Assessment. The annual assessment of the Association shall be divided equally among the Owners of all the Lots and Commercial Tracts subject to this Amended and Restated Declaration. Except as otherwise provided in Section 9 of this Article, upon the addition of any part of the Additional Property to Sandy Creek Airpark, the Property being added shall thenceforth pay assessments which are equal to those imposed upon Property previously a part of Sandy Creek Airpark Development. Said assessment ehall become due regardless of whether the Property is improved or whether the Common Areas are used.
(c) Method of Assessment. By a vote of a majority of the Directors, the Board of Directors of the Association shall adopt an annual budget and fix the annual assessment upon the basis provided above, provided, however, that the annual assessments shall be sufficient to meet the obligations imposed by this Amended and Restated Declaration. Should the Association, through its directors, at any time determine that the annual assessment made is not sufficient to pay the expense, or, in the event of emergency, the Board of Directors shall have authority to levy and collect additional annual assessments to meet such needs of the Association. The Board shall set the date(s) annual assessments and additional annual assessments shall become due. The Board may provide for collection of assessments annually or in monthly, quarterly, or semi-annual installments; provided however, that upon default in the payment of any one or more installments, the entire assessment may be accelerated at the option of the Board and be declared!due and payable in full. Annual assessments may not be increased from year to year by more than 25% without the approval of a majority of the voting interests of the Owners.
Section 3. Special Assessment for Capital Improvements. In addition to the annual assessments authorized above and subject to the limitations mentioned hereafter, the Association may levy in any assessment year a special assessment applicable to that year and not more than the next five succeeding years for the purposes of defraying, in whole or in part, the cost of any construction, reconstruction, repair or replacement of capital improvement upon the Common Area, including fixtures and personal property related thereto, providing that any such assessment shall have the assent of a majority vote of the Owners other than the Declarant who are voting in person or by proxy at a meeting of Owners or by agreement in writing by such majority without meeting. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Area or abandonment of his Property. All notices of special assessments from the Association to the Members shall designate when they are due and payable. So long as the Declarant holds at least fifteen (15%) percent of the Lots and Commercial Tracts (whether subdivided or not) that may become a part of Sandy Creek Airpark, no capital assessments shall be effective without the consent of the Declarant. During the Development Period, special assessments shall be borne by all of the then existing Property Owners and by the Declarant. Each special assessment shall be divided into two hundred and fifty (250) equal fractional shares and each Property Owner, including the Declarant, shall pay one such fractional share for each Lot or Commercial Tract then owned; additionally, the Declarant shall pay one such fractional share for each unsubdivided Lot or Commercial Tract remaining that could ultimately be developed if all of the Additional Properties are made a part of Sandy Creek Airpark Development. It is the intent of this provision that the burden as well as the benefit of special assessments for capital improvements be borne by all of the Owners of existing and future Lots and Commercial Tracts. All special assessments shall be at a uniform rate and shall be made equally as set forth above. Special assessments shall be collectible in such manner as the Board of Directors shall determine.
Section 4. Individual Assessments. Pursuant to the Association’s power and authority to enforce those covenants, restrictions and regulations and the powers granted pursuant to this Amended and Restated Declaration of Covenants and Restrictions, the Board of Directors may upon reasonable notice and an opportunity for a hearing before said Board separately assess Members an individual assessment for failure to maintain his Property in a neat and attractive condition and for other reasons as provided herein; however, such individual assessment shall not exceed $100 or the cost to the Asaociation, whichever is greater. Individual assessments are collectible in a manner determined by the Board of Directors and as provided herein.
Section 5. Delinquent Assessments. If assessments are not paid within thirty (30) days of the date when due, then such assessments shall be delinquent and shall bear interest from the due date at the highest rate allowed by law until paid. The Association may also bring an action at law against the Owner or Owners of the Property personally obligated to pay the same, or to foreclose the lien against the Property, and the Owner shall be obligated to pay all of the Association’s reasonable attorneys’ fees and costs incurred in connection with the collection of the assessment, whether suit be brought or not. In addition, any Owner(s) delinquent in the payment of any assessment may be denied use of any part of the Common Area and may have their voting rights suspended during such time of delinquency.
Section 6. Subordination of the Lien to Mortqaqes. The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage, representing a first lien on said property. No sale or transfer shall relieve any Owner from liability for any assessments that became due prior to the sale or transfer. All holders of first mortgages on Property may, upon written request to the Association: (a) receive timely written notice of meetings of the Association; (b) inspect the financial records and similar documents at reasonable intervals during the normal business hours; (c) receive written notice of any form of condemnation, termination, abandonment, or any material amendment to the Amended and Restated Declaration, ByLaws, or Articles of Incorporation; and (d) receive timely written notice of any substantial damage or destruction to the Common Area. In the event the holder of a first mortgage shall accept and record a deed in lieu of foreclosure or obtain a Certificate of Title such shall operate to release a subordinate claim of lien of the Association. In any such lien foreclosure, the Property Owner shall be required to pay a reasonable rental for the Property, and the Declarant or Association shall be entitled to the forthwith appointment of a receiver without bond or notice to collect the same. A suit to recover a money judgment for unpaid assessments may be maintained at the option of the lien holder without waiving the lien securing the same.
Section 7. Annual Budqet. By a majority vote of the Directors, the Board shall adopt an annual budget for each fiscal year, which shall provide for allocation of expenses in such a manner that the obligations imposed by the Amended and Restated Declaration will be met.
Section 8. Notice and Quorum Requirements Regarding Annual and Special Assessments. Written notice of any meeting called by the Board of Directors for the purpose of voting on an annual assessment shall include special mention of such fact in the notice itself. Written notice of any members meeting called for the purpose of voting on a special assessment shall be sent to all members not less than ten (10) days no more than thirty (30) days in advance of such meeting and shall include special mention of the intention to vote on a special assessment. Members who were not present in person or by proxy may give their assent to the special assessment in writing within thirty (30) days after the date of the meeting, provided that such assents following the meeting may not be used for purposes of establishing a quorum. A quorum shall consist of one-third of the Property Owners.
Section 9. Declarant’s Liability. The Declarant shall not be liable for and shall be excused from payment of annual assessments (but not from payment of special or individual assessments) assessed against any Property owned by the Declarant during the period beginning with the recording of this Amended and Restated Declaration and terminating not later than seven (7) calendar year(s) thereafter or terminating at such earlier date as Declarant may determine in Declarant’s sole discretion (“Guaranty Period”). During the Guaranty Period, the Declarant guarantees that the annual assessment imposed on the Property Owners other than the Declarant shall not exceed $150.00 annually. This annual assessment amount may be increased by the Board of Directors annually by not more than 10% over the prior annual assessment. The Declarant shall pay any amount of the expenses necessary to operate or maintain the Common Area and to operate the Association incurred during the Guaranty Period and not offset by annual assessments that are receivable from other Property owners and the Declarant as to Declarant’s Lots platted in Plat Book 14, Page 11 of the Public Records of Bay County, Florida, remaining unsold, from time to time, at the guaranteed level as adjusted from time to time by the Board of Directors or other Association income. Upon the termination of this Guaranty, the Declarant shall pay annual assessments for all Property owned by the Declarant. Declarant may offer to enter into alternative or substitute assessment guaranty arrangements with Property Owners. Such alternative or substitute assessment guaranty arrangements must be approved by the Property Owners other than the Declarant by majority vote and upon such approval shall supersede in whole or in part, as expressly provided therein, any prior guaranty arrangement.
Section 1. SANDY CREEK AIRPARK ARCHITECTURAL CONTROL COMMITTEE. The SANDY CREEK AIRPARK ARCHITECTURAL CONTROL COMMITTEE (hereinafter referred to as the “ACC” shall consist of three (3) persons. During the Development Period, two members shall be appointed by the Directors of the Association, one member shall be appointed by the Declarant. Thereafter, all members of the ACC shall be appointed by the Board of Directors.
Section 2. Purpose. The ACC shall regulate the external design, appearance, use, location and maintenance of the Development and of improvements thereon in such a manner so as to, in ACC’s sole judgment, best preserve and enhance values and to maintain a harmonious relationship among structures and the natural vegetation and topography. Nothing herein shall give the ACC authority to regulate, control or determine external design, appearance, use or location of Lots under development, to be developed, or dwellings under construction, or to be constructed or marketed or sold by the Declarant.
Section 3. Conditions and Restrictions.
(a) No improvements, additions, alterations, repairs, change of paint colors, excavations, changes in grade or other work which in any way alters the exterior of any property or the improvements located thereon from its natural or improved state existing on the date such property was first conveyed in fee by the Declarant to an Owner shall be made or done without the prior approval of the ACC, except as otherwise expressly provided in this Amended and Restated Declaration. No building, fence, wall, residence, or other structure shall be commenced, erected, maintained, or improved, altered, made or done, nor shall any exterior addition, change or alteration, including replanting, antennas, clotheslines or other external attachments be made until environmental and utility permits and approvals necessary for the improvements have been obtained and the plans and specifications showing the nature, kind, shape, height, materials, colors and locations of the improvements have been submitted to and approved in writing by the Architectural Control Committee.
(b) No clearing, grading, building, fence or other structure shall be erected, placed or altered on any Lot until the proposed building plans, specifications, exterior color and/or finish, plot plan showing the proposed location of such buildings or structure, drives and parking areas, and construction schedule shall have been approved in writing by the ACC, its successors or assigns. Refusal or approval of plans, locations or specifications may be based by the ACC upon any reason, including purely aesthetic conditions which, in the sole discretion of the ACC, shall be deemed sufficient. No alterations in the exterior appearance of any building or structure shall be made without like approval by the ACC. One (1) copy of all plans and related data shall be furnished to the ACC for its records.
(c) Any Owner who has suffered damage to his Living Unit by reason of fire or any other casualty may apply to the Architectural Control Committee for reconstruction, rebuilding or repair in a manner which will provide for an exterior appearance and design different from that which existed prior to the date of the casualty. Application for such approval shall be in writing together with full and complete plans, specifications, working drawings and elevations showing the proposed reconstruction and end result thereof. The Architectural Control Committee shall grant approval only if the design proposed by the Owner would result in a finished Living Unit of exterior design harmonious with other Living Units in the Development.
Section 4. Enforcement.
(a) The provisions of this Amended and Restated Declaration shall be liberally construed to effectuate the purpose of creating a uniform plan for the development and operation of the Development. Enforcement of these covenants and restrictions shall be by the Association by proceeding at law or in equity against any person or persons violating or attempting to violate any covenant or restriction, either to restrain or enjoin violation or to recover damages, or both, and against any Property to enforce any lien created hereby. Any person(s) violating or attempting to violate any of the covenants and restrictions contained herein shall be obligated to pay to the Association all of the Association’s reasonable attorneys’ fees and cost incurred, which sums shall be secured by a lien against any Property owned by said person(s). The failure or forbearance by the Association to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.
(b) There shall be and there is hereby created and declared to be a conclusive presumption that any violation or breach of any attempted violation or breach of any of the within covenants or restrictions cannot be adequately remedied by action at law or exclusively by recovery of damages.
(c) Property grounds (whether vacant or occupied) shall be maintained in a neat and attractive condition. Upon the failure of any Owner to maintain his Property (whether vacant or occupied) in a neat and attractive condition, the Association, or its authorized agents or successors and assigns may, after ten (10) days notice to such Owner, enter upon such Lot and have the grass, woods, and other vegetation cut, debris removed, when, and as often as, the same is necessary in its judgment, and may have dead trees, shrubs and other plants removed therefrom. Such Owner shall be personally liable to the Association for the cost of any cutting, removing of debris, clearing and maintenance described above, the cost of which may be assessed as an individual assessment. The liability for amounts expended for such cutting, clearing and maintenance shall be a permanent charge and lien upon such Property, enforceable by the Associationby any appropriate proceeding at law or in equity. Although notice given as hereinabove provided shall be sufficient to give the ACC or its designated committee, or its successors and assigns, the right to enter upon any such Lot and perform the work required, entry for the purpose of performing the work required shall be only between the hours of 7:00 a.m. and 6:00 p.m. Said permanent charge and lien shall be subordinate to the lien of any first mortgage and shall secure the Association’s attorneys’ fees and costs. It shall be foreclosable as provided in Article V.
(d) Invalidation of any one of these covenants by judgment or court order shall in no way affect any of the other provisions which shall remain in full force and effect.
(e) The failure of the ACC to insist in any one or more cases upon the strict performance of any of the terms, covenants, conditions, provisions or agreements herein contained shall not be construed as a waiver or a relinquishment in the future of the enforcement of any such term, covenant, condition, provision or agreement. The acceptance of performance of anything required to be performed with knowledge of the breach of a term, covenant, condition, provision or agreement shall not be deemed a waiver of such breach, and no waiver by the ACC of any term, covenant, condition, provision or agreement shall be deemed to have been made unless expressed in writing and signed by the ACC.
(f) Zoning regulations, if any, applicable to property subject to this declaration shall be observed. In the event of any conflict between any provision of such zoning restrictions, and the restrictions of this Amended and Restated Declaration, the more restrictive provisions shall apply.
Section 5. Proviso. In the event the ACC fails to approve or disapprove a request within thirty (30) days after request to do so, approval will deem to have been given and compliance with the terms hereof conclusively presumed unless within such thirty (30) day period or any extension thereof, the ACC notifies the Owner requesting approval that additional time to consider the request is required and specifying the date the ACC expects to be able to respond, which shall not be later than thirty (30) days from the ACC notice to Owner. The applicant may appeal an adverse ACC decision to the Board of Directors who may reverse or modify such decision by a majority vote of the Directors.
Use of Property
Section 1. Protective Covenants.
(a) Residential Use. Except for Lots designated as Commercial Tracts or except as otherwise provided herein, Lots shall be used and improved exclusively for single-family residential use only. Lots 1-26, 26A, 27-40, 40A and 41-47 of plat of Sandy Creek Airpark, Plat Book 14, page 11, Bay County, Florida, shall be used for single-family residential uses only and may not be designated Commercial Tracts. Nothing herein shall be deemed to prevent the Owner from leasing his Lot or Living Unit to a single family, subject to all of the provisions of the Amended and Restated Declaration. Only whole Lots may be leased.
(b) Nuisances. No Nuisance shall be permitted to exist or operate upon any property in the Development so as to be detrimental to any other property in the vicinity thereof or its occupants.
(c) Restrictions on Further Subdivision. Except as otherwise provided, no Lot shall be further subdivided or separated into smaller Lots by any Owner, and no portion less than all of any such Lot, shall be conveyed or transferred by an Owner. This provision shall not prohibit deeds of correction, deeds to resolve boundary disputes, and similar corrective instruments or the Declarant’s reserved right to subdivide Lots as provided in Article VII, Section l.(d)(4).
(d) Other Restrictions.
(1) Owners within the Development are hereby restricted from taking any action to interfere with the passage of aircraft in and through the air space above the Development and with Members’ use and enjoyment of the Sandy Creek Airpark Development.
(2) Unless specifically excepted by the ACC for reasons of personal hardship, all one-family residences shall have a ground floor minimum area of 1,400 square feet in the case of one-story dwellings, and a minimum total floor area of 2,000 square feet and a ground floor minimum of 1,400 square feet in the case of one and one-half or two-story structures, exclusive of garages, porches and terraces; provided however that a hangar may be counted as part of the ground floor minimum area where an ACC approved hangar is attached to a residence in a manner creating a uniform and attractive profile and appearance for the residence. Unless specifically excepted by the ACC, each residence shall have a fully-enclosed, two-car garage.
(3) Except as approved by the ACC for reasonable periods of construction, no temporary house, shack, mobile home or tent shall be erected upon any Property. No temporary or permanent storage building, barn, hangar or other out-building shall be used for residential purposes.
(4) The Lots shall not be further subdivided, except that the Declarant may open streets, roads or driveways through any Property to serve adjoining property without approval of the ACC and any portion of the Lot through which a street, road or driveway has been opened and which is not used for such purpose may be added to an adjoining Lot and sold as a single parcel by the Declarant.
(5) No tourist courts, overnight cabins or rental units shall be constructed on any Lot.
(6) Whenever buildings erected on any Lot are constructed in whole or in part of concrete, concrete blocks, cinder blocks or other fabricated masonry block units other than decorative masonry block approved by ACC, the entire surface of such blocks exposed above finish grade shall be veneered with brick, natural stone, stucco approved by the ACC or other material approved by the ACC.
(7) No building shall exceed the height of 35 feet.
(8) No Property parcel shall be used as a dumping ground for rubbish, trash, or garbage. No obnoxious or offensive activities shall be carried on upon any Lot nor shall anything be done, thereon which may be or may become an annoyance to the neighborhood. Garbage and trash containers shall be contained within an enclosure, except as may be actually required for collection purposes. The design and material of said enclosure shall be in keeping with the general appearance of the house and its design shall be approved by the ACC.
(9) No animals, livestock or poultry of any kind shall be raised, bred or kept on any Lot, Commercial Tract or on the Common Area. However, dogs, cats and other household pets may be kept subject to such rules and regulations as may be adopted by the ACC so long as they are not kept, bred or maintained for commercial purposes.
(10) No fence, wall, hedge or shrub planting shall be permitted on any Lot, except as may be approved by the ACC.
(11) No signs of any character shall be erected, pasted, posted, or displayed upon or about any Lot or part of any Lot without the written permission of the ACC and the ACC shall have the right in its sole discretion to prohibit or to restrict and control the size, construction, material, wording, location and height of all signs and may summarily remove and destroy all unauthorized signs.
(12) No clothing, laundry or wash shall be aired or dried on any portion of the Lots in an area with a substantial exposure to view from any other Lot. Drying areas will be permitted only in locations approved by the ACC and only when substantially protected from view by screening or fencing approved by the ACC.
(13) There shall be not more than one name plate on each Lot. The name plat shall be neat and appropriate to the surrounding improvements and the form of name plate shall be subject to the prior approval of the ACC.
(14) One or more hospitality light standards, of a design approved by the ACC, may be located within the front yard of any Owner’s Property.
(15) No television or other outside antenna system or facility shall be erected or maintained on any Lot to which cable television service is then currently available except with the specific consent of the ACC which consent may be unreasonably withheld.
(16) Flag poles are permitted, provided the pole is not more than fifteen (15) feet in height, unless otherwise approved by the ACC.
(17) Nothing shall be done or kept on an Owner’s Property which would increase the rate of insurance relating thereto without the prior written consent of the Board of Directors of the Association and no Owner shall permit anything to be done or kept on his Property which would result in the cancellation of insurance on his Property or on any part of the Common Area or which would be in violation of any law.
(18) All electrical lines and telephone lines shall be run underground.
(19) Each Lot adjoining the taxiway rights-of-way may have a hangar for the storage of private aircraft. Such hangar if constructed, must be compatible with the adjoining dwelling unit and will be subject to ACC architectural approval. No hangar shall be erected within the front yard of any Lot, but only within the rear or side yards if the entrance to said hangar is from the rear.
(20) Owners and occupants of Living Units shall not as a matter of course park owned or controlled motor vehicles on adjacent roads and streets or otherwise than in garage space or off-street parking. Aircraft shall be hangared or tied down as required in ARTICLE IV, Section 5 (b)(2).
(21) No house or other building, including hangars, shall be constructed within fifty (50) feet of the center of main roadways adjoining any Lot or Commercial Tract, but this restriction does not apply to side streets or taxiways.
(22) No Owner shall alter, construct on, or remove anything from the Common Area except on the written consent of the Association.
(23) No window air conditioning unit shall be installed without the consent of the ACC.
(24) All mailboxes shall be uniform in height and size, constructed in accordance with plans to be established by the ACC.
(25) The ACC shall adopt general rules to implement the purposes set forth in Article VI, Section 2 and interpret the covenants in this Section, including but not limited to rules to regulate animals, antennas, signs, storage and use of recreational vehicles, storage and use of machinery, use of outdoor drying lines, trash containers, planting, maintenance and removal of vegetation. Such general rules may be adopted or amended by a majority vote of the ACC, following a regular or special meeting for which due notice has been provided, and provided such are approved by an affirmative vote of a~majority of the Board of Directors. All such general rules and~any subsequent amendments thereto shall be placed in the rules and regulations of the Association. The rules of the ACC shall not contravene any provision of this Amended and Restated Declaration, the Articles of Incorporation or By-Laws of SANDY CREEK AIRPARK OWNERS ASSOCIATION, INC.
(e) Exceptions. The ACC may issue temporary permits to except any prohibitions expressed or implied by this section, provided the ACC can show good cause for doing so.
Section 2. Maintenance of Property. Each Owner shall keep all of the Property owned by him, and all improvements therein or thereon, in good order and repair and free of debris including, but not limited to the painting (or other appropriate external care) of all buildings and other improvements, all in a manner and with such frequency as is consistent with good property management. In the event an Owner of any Property shall fail to maintain the premises and the improvements thereon, as provided herein, the Association, after notice to the Owner as provided in the By-Laws and approved by a majority vote of the Board of Directors, shall have the right to enter upon said Property to correct drainage and to repair, maintain and restore the exterior of the buildings and any other improvements erected thereon. All costs related to such correction, repair or restoration shall become an individual assessment upon such Property.
Section 3. Utility Easements.
(a) The Declarant and each Owner specifically reserves and grants to the Declarant and the Association within each Lot and Commercial Tract an easement in a strip of land twenty-five (25) feet running along the front of all Lots and Commercial Tracts and a six (6) foot easement along all other sides of all Lots and Commercial Tracts for utility purposes. The term nutility purposesn shall include but not be limited to electricity, cable television facilities, water, drainage, gas, sewer, telephone, and for any similar facility, deemed by the Declarant necessary for the service of such Property or other parcel within the Development. The Declarant shall have the right to assign the use of said easement or rights-of-way to any person, firm, corporation or municipality furnishing any of the utilities or facilities mentioned. The maintenance of all easements shall be considered the common or collective responsibility of the Owner(s) and the Association. The Association by majority vote of the Board of Directors may grant permits, licenses and easements over or upon the Common Area for utility purposes, ingress and egress or other purposes reasonably necessary or useful for the proper maintenance or operation of the Development.
(b) No structure shall be built upon the easement mentioned above and said easement property shall at all times be open to Declarant, his assigns, and any public utility or private service corporation which may require the use of said right-of-way.
(c) No easement shall be granted by any Property Owner without the express approval in writing of the Declarant.
Section 4. Easement to Correct Drainage. During the Development Period, the Declarant reserves a blanket easement and right on, over and under the ground within that Property to maintain and to correct drainage of surface water in order to maintain reasonable standards of health, safety and appearance. Such right expressly includes the right to cut any trees, bushes or shrubbery, make any grading of the soil, or to take any other similar action reasonably necessary, following which the Declarant shall restore the affected property to its original condition as near as practicable. The Declarant shall give reasonable notice of intent to take such action to all affected Owners, unless, in the opinion of the Declarant, any emergency exists which precludes such notice. Provided, however, Declarant in the exercise of such easement rights shall not disturb any Living Unit or other substantial improvement upon any Property.
Section 5. Commercial Tracts.
(a) Each conveyance from Declarant to a purchaser of a Commercial Tract shall be subject to any additional deed restrictions which may be imposed at the time of purchase.
(b) Use of the Common Area shall be by the Commercial Tract Owner, its employees and customers only in the normal course of business.
(c) The Association shall not have the right to amend this Amended and Restated Declaration as it applies to Commercial Tracts without the consent of all Commercial Tract Owners.
Section 6. Alteration and Improvement of Common Area. Except as provided below, there shall be no substantial alteration nor further substantial improvement of the real property constituting the Common Area without prior approval of not less than a majority of the Owners other than the Declarant. During the Development Period, the Declarant may undertake substantial alterations or further substantial improvements of the real property constituting the Common Area provided the Declarant bears the cost of such alteration or improvement and in such event neither the Association, its Board of Directors nor Association Members need approve such alteration or improvement.
Section 7. Wells. Subject to and after obtaining all applicable regulatory approvals, appropriate permits and after obtaining the prior written approval of the Architectural Control Committee, an Owner may furnish his drinking water from a well within his Property. Architectural Control Committee approval is not required prior to installation of a well for irrigation for lawn care.
Section 8. Aircraft Run-up. All aircraft shall have the right-of-way when taxiing on the Access Roads and Taxiways. Aircraft shall “run-up” only in areas designated by the Association Board of Directors. But in any event the run-up shall not be done in such a manner such as to cause inconvenience or damage to the property of others. In any event, no low-level flying stunts nor other hazardous activities will be permitted about the Development. Each Owner is required to strictly observe all Federal, State and Local Statutes, Regulations or Ordinances relative to the operation of civil aircraft.
OWNERS OBLIGATION TO REPAIR
Section 1. Subject to the provisions of Article VII, each Owner shall at his sole cost and expense, repair his Living Unit, keeping the same in a condition comparable to the condition of such Living Unit at the time of its initial construction, excepting only normal wear and tear.
OWNERS OBLIGATION TO REBUILD
Section 1. If all or any portion of a Living Unit is damaged or destroyed by fire or other casualty, it shall be the duty of the Owner thereof, with all due diligence, to rebuild, repair or reconstruct such Living Unit in a manner which will substantially restore it to its appearance and condition immediately prior to the casualty. Reconstruction shall be undertaken within ninety (90) days after the damage occurs, and shall be completed within twelve months after the damage occurs, unless prevented by causes beyond the control of the Owner.
PROPERTY OWNERS ASSOCIATION
Section 1. Membership. Every Property Owner shall be a Member of SANDY CREEK AIRPARK OWNERS ASSOCIATION, INC., a Florida corporation not for profit, and shall be entitled to all of the benefits of Membership in said Association, and such Owner and his Property shall be burdened by all obligations and responsibilities of membership in the Association and the Covenants, Restrictions and Conditions of the Amended and Restated Declaration.
Section 1. Conceptual Master Plan. Declarant intends to develop the Additional Property in accordance with a conceptual master plan on display in its office and other areas. Declarant reserves the right to review and modify the conceptual master plan at its sole option at any time and from time to time. The conceptual master plan shall in no way bind the Declarant to adhere to the development of Sandy Creek Air Park Development as shown thereon. Declarant shall have full power to make changes or abandon all or part of the Development as shown on the conceptual master plan.
Section 2. The covenants and restrictions of this Amended and Restated Declaration and any duly adopted and recorded amendment shall run with the land in perpetuity and shall be binding on all parties and persons claiming under them.
Section 3. Amendment. This Amended and Restated Declaration may be modified, altered, or amended at any time by instruments in writing recorded in the Public Records of Bay County, Florida, by record Owners of Two-Thirds (2/3) or more of the total votes of the Owners; provided, however, that during the Development Period, amendments, to be effective, must also have the approval by instrument in writing of a majority of Owners other than the Declarant.
Section 4. Liability. Neither Declarant, the Association nor any Property Owner (merely because of his status as such Owner) shall have any responsibility or liability of any kind or nature whatsoever to anyone for loss or damage to any person, structure, property or aircraft due to theft, vandalism, windstorm, tornadoes, negligence of the Owner or user of any aircraft, fire, acts of God or other perils. In addition, Declarant, its successor or assigns, shall not in any manner be held liable or responsible, either directly or indirectly, for any violation of this Amended and Restated Declaration by any person or entity other than itself.
Section 5. Association. All rights of the Declarant shall be deemed to be rights of the Association after the Development Period.
Section 6. Proviso. Provided however and not withstanding anything to the contrary herein provided, during the Development Period neither any Owner nor the Association shall interfere with the Declarant’s development of Sandy Creek Airpark and the sale or lease of Property or the use of Common Area in connection with the development, sale or lease of Property. Declarant may make such use of unsold Property and the Common Areas as may facilitate such completion, sale and lease, including but not limited to the maintenance of a sales office, the showing of any Property and the display of signs and construction work generally. The sales office, the furniture and furnishings in all models, signs and all items pertaining to sales shall not be a part of the Common Area but rather shall remain the property of the Declarant.