HomeMy WebLinkAboutSeville Chase
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THIS INSTRUMENT PREPARED BY/
REl'i'YRIJ m.
Kenneth F. Oswald, Esquire
Suite 110, 600 Courtland Street
Orlando, Florida 32804
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FIRST AMENDMENT TO DECLARATION OF COVENANTS,
CONDITIONS, EASEMENTS AND RESTRICTIONS AND
COVENANT RUNNING WITH THE LAND FOR
SEVILLE CHASE
THIS FIRST AMENDMENT TO DECLARATION made this ~ day of
September, 1996, by SEVILLE CHASE DEVELOPMENT, LTD., a Florida
limited partnership (hereinafter referred to as the "Developer").
WIT N E SSE T H:
WHEREAS, on September 1~, 1996, Developer caused to be
recorded in the Public Records of Seminole County, Florida, the
Declaration of Covenants, Conditions, Easements and Restrictions
for Seville Chase Subdivision, in O.R. Book SI, page/- /4,
Public Records of Seminole County, Florida (the "Declaration"); and
WHEREAS, Developer, in Article XVI, Section 16.1 of the
Declaration, reserved the right to amend the Declaration; and
WHEREAS, Developer desires to amend the Declaration, all as
more fully set forth herein.
NOW, THEREFORE, in consideration of the premises hereof,
Developer hereby amends the Declaration as follows:
1. The fOllowing additional paragraphs are added to Article
XIX, Miscellaneous Provisions, as follows:
A. 19.12 Buffer Area, Tract "A". There has been
created on the Seville Chase Subdivision, Plat Book 5.L,
Pages U through ~4- , Public Records of Seminole
County, Florida, a 50' natural buffer area (identified on said
Plat as Buffer Area, Tract "A") located on the perimeter of
the Property along Panama Road and Fisher Road. Vehicular
access rights over Buffer Area, Tract "A" are dedicated to the
City of Winter Springs, Florida. The Buffer Area, Tract "A"
shall remain in its natural state with the native trees and
vegetation and shall not be mowed, cleared or changed. No
roads, trails or other improvements shall be allowed on or
through the Buffer Area, Tract "A". In the event of a breach
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of the provisions of the Restrictions as hereinabove seS
forth, the party causing such breach and/or any property owne~
at the Subdivision involved in such breach, shall be jointl~
and severally liable to the City of Winter Springs, Florida,~
for the cost of repairing such breach (cost of repairing sai~
property to its natural condition), plus liquidated damages in
the amount of $5,000.00, and any other damages permitted by
Florida law, including, but not limited to, injunctive relief.
Jurisdiction for any and all civil actions arising hereunder,
shall be in the Circuit Court of Seminole County, Florida.
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B. 19.13 Settlement Agreement. Seville Chase
Subdivision is encumbered by, and this Declaration is not in
conflict with, the terms and conditions of a Settlement
Agreement, dated December 2, 1994, recorded in Official
Records Book 2857, Pages 0616 through 0633, of the Public
Records of Seminole County, Florida.
2. Developer hereby ratifies, approves and confirms that the
Declaration of Covenants, Conditions, Easements and Restrictions
for Seville Chase, as amended hereby, shall remain in full force
and effect in every respect. The terms and provisions of this
First Amendment shall be a covenant running with the land and shall
be binding upon the owners of lots at Seville Chase and their
heirs, successors and assigns. This First Amendment to Declaration
cannot be changed or modified or dissolved without the prior
approval of the City of Winter Springs, Florida.
THIS FIRST AMENDMENT TO DECLARATION shall be effective upon
filing in the Public Records of Seminole County, Florida.
IN WITNESS WHEREOF, the Developer has caused the foregoing
Amendment to the Declaration of Covenants, Conditions, Easements
and Restrictions for Seville Chase to be executed as of the day and
year first above written.
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Signed, sealed and delivered
in the presence of:
SEVILLE
LTD. , a
partnership
CHASE DEVELOPME~,
Florida limited
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By:
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GEORGE D. LIVINGSTON, JR.,
General Partner
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STATE OF FLORIDA
COUNTY OF ORANGE
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The foregoing instrument was acknowledged before me this JV
day of August, 1996, by GEORGE D. LI~+~~J9N, JR., General Partner
of SEVILLE CHASE DEVELOPMENT, LTD ~i\;'~:~ \.F~i:4a limited partnership.
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(Print, type or stamp commi~~~~~~~~; of Notary Public)
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Type of Identification Produced
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JOINDER AND CONSENT TO FIRST AMENDMENT TO
DECLARATION OF COVENANTS,
CONDITIONS, EASEMENTS AND RESTRICTIONS FOR
SEVILLE CHASE
THE UNDERSIGNED hereby certifies that it is the holder of an
Indenture of Mortgage on the property described herein, recorded in
O. R. Book 3020, Page 1441, Public Records of Seminole County",
Florida, and the undersigned hereby agrees that the lien of it~
said Mortgage, shall be subordinate to the provisions of theS
Declaration of Covenants, Conditions, Easements and Restrictions o~
Seville Chase. ~
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Signed, sealed, and delivered
in the presence of:
PEOPLES FIRST COMMUNITY BANK
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By:-'~ ~,;)/i..S/v--- !~
Printed Name: Randall B. Jackson
Attest: A r~_~\/~\c~
Printed N~e: J. Reed Bartel-son .
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(Corporate S~a-J.).:
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STATE OF FLORIDA
COUNTY OF ORANGE
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The foregoing instrument was acknowledged before me this 4th
day of September, 1996, by Rand<lll B. Jackson and
J. Reed Bartelson as Assistant Vice President and
Branch Manager respectively, of PEOPLES FIRST
COMMUNITY BANK. r-- OFFICIAL .'.JOTARY SEAL
I !RE:\iE M'DESSEZ
1"n'7'\RY""~'fC '
."~,, ,,~[)L .:,TATEOFFLORIDA
COM\fISSIO\i ,\fO. CC456727
MY COMMISSION E;XP. MA Y 21.1999
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Notary Public
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(Print, type or stamp commissioned name of Notary Public)
Personally Known
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OR Produced Identification
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DECLARATION OF COVENANTS, CONDITIONS,
EASEMENTS AND RESTRICTIONS
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE II
OBJECTS AND PURPOSES.................................... 5
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ARTICLE III
EFFECT OF DECLARATION
3.1 Covenants Running with Land... ........ ........6
3.2 Property Affected.............................6
3.3 Parties Affected.............................. 6
ARTICLE IV
PROPERTY SUBJECT TO DECLARATION
4.1 Subj ect Property.............................. 7
4.2 Addition of Property.. .... .... ................7
ARTICLE V
USE CLASSIFICATIONS
5.1 Residential Property..........................7
5.2 Common Property......... ...... .... ............7
ARTICLE VI
PERMITTED USES
6.1 Residential Property... ............ ....... ....8
6. 2 Common Property............................... 8
ARTICLE VII
USE RESTRICTIONS - RESIDENTIAL PROPERTY
7.1 Single Family Only. . . . . . . . . . . . . . . . . . . . . . . . . . . .8
7.2 Ownership and Leasing..... .... .... ....... .....8
7. 3 Subdivision................................... 8
7.4 Commercial Activity...........................8
7.5 Offensive Activity....... .....................9
7.6 Animals and Pets.............................. 9
7.7 Commercial and Recreational Vehicles..........9
7.8 Maintenance.................................. 11
7.9 Reconstruction of Damaged Improvements..... ..11
7.10 Garbage and Garbage Containers...... ...... ...11
7 . 11 Burning...................................... 12
7.12 Storage Tanks................................ 12
7.13 Mineral Exploitation...... .... ..... ........ ..12
7.14 Laundry and Clothes Drying. '" ..... ....... ...12
7.15 Radio Transmission Equipment. ........ '" ....12
7 . 16 Signs........................................ 12
7.17 Trees........................................ 13
7.18 Drainage.................................... .13
7.19 Rules and Regulations... ...... '" ......... ...14
7.20 Enforcement.................................. 14
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7.21 Precedence Over Less Stringent Governmental
Regulations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
8.10
8.11
8.12
8.13
8.14
8.15
8.16
8.17
8.18
8.19
8.20
8.21
8.22
8.23
8.24
8.25
8.26
8.27
8.28
8.29
8.30
8.31
8.32
8.33
8.34
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ARTICLE VIII
BUILDING RESTRICTIONS - RESIDENTIAL PROPERTY
8.1 Bui 1 ding Type................................ 15
8. 2 Approved Plans............................... 15
8.3 Governmental Regulations..... .......... ..... .15
8.4 Design Standards Manual....... ......... ......15
8.5 Construction................................ .15
8.6 Construction Time.... ....... ... ..... ....... ..15
8.7 Height Limitation...... .......... .......... ..16
8.8 Building Setback Lines....... ..... ... ...... ..16
8. 8. 1 Lots.................................. 16
8.8.2 Corner Lots........................... 16
8.8.3 Exclusions........................... .16
8.9 Other Setback Lines.......... .... ........ ....17
8.9.1 Swimming Pools. ...... ..... ........ ...17
8.9.2 Swimming Pool Decks, Patios and
Enclosures. . . . . . . . . . . . . . . . . . . . . . . . . . . .17
8.9.3 Outbuildings and Accessory Structures.17
8.9.4 Design Standards Manual........ .....17
Intentionally Blank...... ............... .... .17
Dwelling Size............................... .17
Temporary Improvements...................... .17
Garages and Carports......... ... ........... ..18
Curb Cuts.................................... 18
Driveways. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Roofs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Roof Structures.............................. 19
Antennas, Etc................................ 19
Windows. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Reflective or Mirrored Glass. .............. ..20
Awnings, Shutters and Window Coverings...... .20
Exterior Air Conditioning Equipment...... ....20
Fences and Walls............................ .20
Swimming Pool Screens.......... .......... ....20
Exterior Building Materials,
Finishes and Colors. .......... ..... ......... .21
Exterior Lighting.. ........... ..... ....... ...21
Mailboxes and Other Delivery Boxes.......... .21
Underground Utilities........ ........ ....... .22
Landscaping. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
Grass. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
Trees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
Irrigation systems. ............... ........ ...22
Artificial Vegetation................. ..... ..23
Precedence Over Less Stringent Governmental
Regul ations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
8.35 Waivers, Exceptions and Variances
by Developer...... . . . . . . . . . . . . . . . . . . . . . . . . . . .23
8.36 Architectural Review Board Approval......... .24
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ARTICLE IX
COMMON PROPERTY
9.1 Additional Property. ......... ... .......... ..24
9.2 Restriction on Use. ......... ...... ......... .24
9.3 Restriction on Conveyance....... ......... ...25
9.4 Encumbrance as Security...... ... .......... ..25
9.5 Use by Owners.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
9.6 Delegation of Use.... ............ ....... ... .26
9.7 Waiver of Use........................... . . . .27
9.8 Administration and Care.. .... ............ ...27
9.9 Rules and Regulations.. ................. ... .27
9.10 Entry Wall... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
9.11 Payment of Assessments Not
Substitute for Taxes... ...... ... ... ...... ...28
ARTICLE X
ASSESSMENTS
10.1
10.2
10.3
10.4
10.5
10.6
10.7
10.8
10.9
10.10
10.11
10.12
10.13
10.14
10.15
10.16
10.17
10.18
Assessments for Common Expenses... ...... ....28
Common Expenses............................. 29
Use of Assessments.... ....... ...... ..... ....30
Prohibited Use of Assessments. ........... ...30
Lien for Assessments................ ..... ...30
Personal Liability for Assessments....... ...31
Types of Assessments.. ............ ....... ...31
Regular Assessments. ... .... ... ... ....... ....31
10.8.1 Rate of Regular Assessments..... ....31
10.8.2 Developed vs. Undeveloped Lots... ...32
10.8.3 Notice of Regular Assessments.. .....32
10.8.4 Commencement of Regular Assessments.32
10.8.5 Insufficient Regular Assessments. ...32
10.8.6 Limitation on Increases... ....... ...33
10.8.7 Payment of Assessments...... ....... .33
10.8.8 Developer Option..... ...... .... .....33
10 . 8 . 9 Res e rv e s. . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Capital Expenditure Assessments.. ....... ....34
Special Assessments.. ............ ........ ...34
Individual Lot Assessments..... .... ....... ..35
Quorum for Action Authorized Under
Subsections 10.8.6 and Sections 10.9
and 10.1....................................35
Uniformity of Assessments.... ... ......... ...36
Exempt Property............................. 36
Subordination of Assessment Lien... ........ .36
Certificate of Assessments Due.. .......... ..36
No Defenses or Offsets....... ............. ..37
Waiver of Homestead and Other Exemptions.. ..37
ARTICLE XI
NON-PAYMENT OF ASSESSMENTS
11.1 Delinquency................................. 37
11.2 Notice of Lien.............................. 37
11.3 Foreclosure of Assessment Lien.... ........ ..38
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11. 5
11. 6
11. 7
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Collection from Owner........... ......... ...38
Judgment Amount............................. 38
Remedies Cumulative.......... ..... ....... ...38
Satisfaction of Lien.. ....... ............ ...39
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ARTICLE XII
ASSOCIATION: PURPOSES, DUTIES AND POWERS
12.1
12.2
12.3
12.4
12.5
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Objects and Purposes and Function..... ... ...39
Duties and Powers, Generally.. .......... ....39
Duties of Association........ ........ .... ...39
12.3.1 Payment of Common Expenses..........40
12.3.2 Levy and Collection of Assessments..40
12.3.3 Other Services...... .............. ..40
12.3.4 Insurance........................... 40
12.3.5 Preserve and Enhance Beauty of
Seville Chase....................... 40
12.3.6 Promotion of Health, Safety and
Welfare............................ .40
12.3.7 Establish and Enforce Rules and
Regulations........................ .40
Other Activities.... ............. ...40
Operate Without Profit..... ..... ....41
of Association.. ................ .....41
Own and Deal with Common Property...41
Levy and Collect Assessments..... ...41
Establish Reserves.. ............ ....41
Sue and Be Sued........... .... .... ..41
Borrow Money....... . . . . . . . . . . . . . . . . .41
Employ and Contract.... '" ......... .41
Intentiona~ly Blank. ..... ....... ....42
Provide Public or Quasi Public
S e rv ice s. . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
12.4.9 Enforce Declaration......... ." '" ..42
12.4.10 Stormwater Management System........42
Limi tations and Restrictions on Power of
Association. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
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12.3.8
12.3.9
Powers
12.4.1
12.4.2
12.4.3
12.4.4
12.4.5
12.4.6
12.4.7
12.4.8
ARTICLE XIII
ASSOCIATION, MEMBERSHIP AND VOTING RIGHTS
13.1 Membership.................................. 44
13.2 Transfer of Membership. ...... .... ....... ....44
13.3 Members' Rights... ..... .............. .......44
13.4 Intentionally Blank. ........ ............... .44
13.5 Voting Rights............................... 45
13.6 Classes of Voting Membership; Number of Votes
13.6.1 Class A.............................45
13.6.2 Class B............................. 45
13.7 Intentionally Blank...... .... ..... ...... ....46
13.8 Approval by Members... .... .... ........... ...46
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ARTICLE XIV
EASEMENTS
14.1
14.2
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Easements Generally......... ............. ...46
14.1.1 utility Easements. ... ........... ...46
14.1.2 Drainage Easements.... ... ....... ...47
14.1.3 Intentionally Blank... ........ .....47
14.1.4 Wall, Landscape and Sign Easements.47
14.1.5 Landscape and Buffer Easements.. ...48
14.1.6 Conservation Easements......... ....48
14.1.7 Intentionally Blank............ ....50
14.1.8 Construction and Sales Easements...50
14.1.9 Association Easement.. ......... ....50
14.1.10 Common Roads and Streets...........51
Future Easements... ............ ....... ......51
15.1
ARTICLE XV
ARCHITECTURAL AND LANDSCAPE CONTROL
15.2
15.3
15.4
15.5
15.6
15.7
15.8
15.9
15.10
15.11
15.12
15.13
15.14
15.15
ARTICLE XVI
AMENDMENT
16.1
16.2
16.3
16.4
16.5
Reservation of Architectural and Landscape
Control. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52
Architectural Review Board Established... ...52
Architectural Review Board Authority.... ....52
Architectural Review Board Approval.... ... ..53
Objective Standards..................... ....53
Rules and Regulations................. ......53
Subjective Judgment............ .......... ...53
Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54
Applications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54
Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54
Approval. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .55
Changes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Notice of Action............................ 55
Developer Action. . . . . . . . . . . . . . . . . . . . . . . . . . . .56
Exculpation for Approval or Disapproval of
Plans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Amendment by Developer......................57
Amendment by Association............... .....57
Manifestation of Requisite Consent....... ...57
Effectiveness of Amendments....... ..... .....57
Limitations on Amendments..... ..............58
ARTICLE XVII
DURA T I ON. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE XVIII
ENFORCEMENT .
18.1 Parties Entitled to Enforce...... ........ ...59
18.2 Limitations on Enforcement Rights....... ....60
18.3 Enforcement by Owners..... .... ......... ... ..60
18. 4 Attorneys' Fees............................. 60
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18.6
18.7
18.8
18.9
No Waiver.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61
Nuisance....................................61
Cumulative Rights and Remedies......... .... .61
Effect of Invalidation........... ...... .....61
Exculpation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61
ARTICLE XIX
MISCELLANEOUS PROVISIONS
19.1 Constructive Notice and Acceptance.... ......62
19.2 Personal Covenants................... .......62
19.3 Governing Law............................... 62
19.4 Construction................................ 62
19.5 Article and Section Headings.. .... ....... ...62
19.6 Singular Includes Plural, Etc... ........ ....62
19.7 Time of Essence............................. 63
19.8 Notice...................................... 63
19.9 Development and Construction by Developer...63
19.10 Assignment of Developer's
Rights and Interests........... .......... ...64
19.11 No Warranties............................... 64
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DECLARATION OF COVENANTS, CONDITIONS, EASEMENTS AND RESTRICTIONS
FOR SEVILLE CHASE
THIS DECLARATION OF
RESTRICTIONS is made and
1996 by SEVILLE CHASE
partnership (hereinafter
COVENANTS, CONDITIONS, EASEM~NTS AND
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executed this t2 day of ..A u c ,,'':' I
DEVELOPMENT, LTD., a Florid~ limited
referred to as the "Developer").
WIT N ESE T H:
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WHEREAS, Developer is the record owner of fee simple title
certain real property situate in Seminole County, Florida, which
more particularly described as follows:
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All lands included within and embraced by the plat of Seville~
Chase according to the plat thereof as recorded in Plat Book~
S 1, Page \ ~ \ +- Publ ic Records of Seminole County,
Florida.
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(hereinafter referred to as the "Subject Property"); and
WHEREAS, Developer
developed as a single
"Seville Chase"; and
intends that the
family residential
Subject Property
community known
be
as
WHEREAS, the Developer desires to insure that the Subj ect
Property is subdivided, developed, improved, occupied, used and
enjoyed pursuant to a uniform plan of development; and
WHEREAS, Developer desires to impose this Declaration upon the
Subject Property, to the effect that the lands within and
comprising Seville Chase shall be subject to these uniform
covenants, conditions, restrictions, easements and reservations.
NOW, THEREFORE, for and in consideration of the premises
hereof, Developer does hereby declare that the Subject Property
shall be and is hereby encumbered by and made subject to those
covenants, conditions, restrictions, easements and reservations
hereinafter set forth.
ARTICLE I
DEFINITIONS
For purposes of this Declaration, the fOllowing terms shall
have the fOllowing definitions and meanings:
1.1 "Architectural Review Board" shall mean and be defined
as the committee created and established by and pursuant to this
Declaration which is responsible for the review and approval of all
plans, specifications and other materials describing or depicting
improvements proposed to be constructed on Residential Property and
also responsible for the administration of those provisions of
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Article XV of this Declaration involving architectural and
landscape control.
1.2 "Assessment" shall mean and be defined as any assessment
of an Owner and a Lot by the Association for Common Expenses and
other items pursuant to, in accordance with and for the purposes
specified in Article X of this Declaration.
1.3 "Association" shall mean and be defined as Seville Chase
Communi ty Association, Inc., a corporation not-for-profi t organized
and existing under the laws of the State of Florida, or any ~
successor corporation accepting the responsibilities of the ~
Association under this Declaration.
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1.4 "Board" shall mean
Directors of the Association.
and
be
defined
as
the
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1.5 "City" shall mean and be defined as the City of Winter I
Springs, a political subdivision of the State of Florida,
specifically including each and all of its departments and
agencies.
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1.6 "Common Expenses" shall mean and be defined as those costs
and expenses of the Association more particularly identified and
described in Section 10.2 of this Declaration.
1.7 "Common Property" shall mean and be defined as all real
and personal property, rights and interests from time to time owned
or held by the Association for the common use, enjoyment and
benefit of all Owners, including, but not limited to the Common
Streets and Roads, buffer areas, the stormwater management tracts
and facilities, the benefits of landscape, wall and sign easements
shown on the Plat, the conservation easements shown on the Plat,
the benefit of the easements established by this Declaration or the
Plat for any common facilities that from time to time may be
installed on any Lot, and all easements, if any, granted to or for
the benefit of the Association.
1.8 "Common streets and Roads" shall mean and be defined as
the rights of way of all streets, roads, drives, courts, ways and
cuI de sacs within Seville Chase which remain private and are not
dedicated to the public use, as the same are described ih and
depicted on the Plat and all paving, curbs, gates and other
improvements, facilities and appurtenances located therein,
including street lights and utility lines.
1.9 "Entry Wall" shall mean and be defined as any wall or
similar structure from time to time situated on the landscape and
Wall easements as shown on the Plat, together with any footings
reI ated equipment, 1 andscaping ( incl uding wiring or irrigation
systems) and other appurtenances.
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1.10 "County" shall mean and be defined as Seminole County, a
political subdivision of the State of Florida, specifically
including each and all of its departments and agencies.
1.11 "Declaration" shall mean and be defined as this
Declaration of Covenants, Conditions, Easements and Restrictions
for Seville Chase and all amendments thereto and modifications
thereof as are from time to time recorded among the Public Records
of the County.
1.12 "Design Standards Manual" shall mean and be defined as
that document or those documents that may be adopted, promulgatedu;
and published by the Architectural Review Board, as the same shall~
be amended from time to time, setting forth archi tectural and~
landscape design standards, specifications and other criteria to bee
used as the standard for determining compliance with this~
Declaration and the acceptability of those components of buildings, ()
structures, landscaping and all other improvements, constructed,~
erected, placed or installed upon Residential Property as more""T1
particularly provided in Article XV of this Declaration. r
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1.13 "Developer" shall mean and be defined as SEVILLE CHASE
DEVELOPMENT, LTD., a Florida limited partnership, and such other
person(s) to whom the Developer specifically assigns by written
instrument its rights as Developer hereunder as to all or any
portion of the Subject Property, as described in Section 19.10 of
this Declaration.
1.14 "Seville Chase" "and Seville Chase Community" shall mean
and be defined as SEVILLE CHASE, the single family residential
communi ty planned for and developed on the Subj ect Property as
reflected on the Plat recorded or to be recorded in the Official
Records of the County, including all Residential Property and
Common Property.
1.15 "Governmental Regulations" shall mean and be defined as
all applicable laws, statutes, codes, ordinances, rules,
regulations, limitations, restrictions, orders, judgments or other
requirements of any governmental authority having jurisdiction over
the Subject Property or any Improvements constructed or located
thereon, including, without limitation, those pertaining to
building and zoning.
1.16 "Institutional Lender" shall mean and be defined as and
include (a) any state or federal savings bank, commercial bank or
savings and loan association, any real estate investment trust, any
insurance company, any mortgage banking company, any mortgage
company, any pension and/or profit sharing plan or any other
lending or investing institution, generally and customarily
recognized as being engaged, in the ordinary course of its
business, in making, holding, insuring or guaranteeing first lien
priority real estate mortgage loans and (b) Developer, to the
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extent that Developer shall hold a mortgage upon any portion of the
Subject Property, and all successors, assigns, assignees and
transferees of Developer who shall own or hold any mortgage upon
the Subject Property or any portion thereof which was originally
executed and delivered to and owned and held by Developer.
1.17 "Improvements" shall mean, be defined as and include any
buildings, outbuildings, structures, driveways, walkways, swimming
pools, patios, decks, fences, walls, landscaping, and any and all
other appurtenances, facilities and improvements of any kind,
nature or description constructed, erected, placed, installed or
located on Residential Property and any replacements thereof an~
all additions or alterations thereto. ~
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1.18 "Lot(s)" shall mean and be defined as a separate singlEr
family residential building site within the Subject Property as th~
same is subdivided and described by a number pursuant to and i~
accordance with the Plat and shall include any Improvements fro~
time to time constructed, erected, placed, installed or located'
thereon. The Developer currently plans to plat a total of One
hundred ten (110) Lots but it is under no obligation, express or
implied, to do so.
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1.19 "Owner" shall mean and be defined as one or more persons
or entities who or which are alone or collectively the record owner
of fee simple title to any Lot, parcel, piece or tract of land
within Seville Chase, including Developer and its successors and
assigns, but excluding those having an interest in any such Lot
merely as security for the payment of a debt or the performance of
an obligation.
1.20 "Plat" shall mean and be defined as any of the plats of
the Subject Property, as recorded or to be recorded in the Public
Records of the County.
1.21 "Residential Property" shall mean and be defined as all
of the Lots.
1.21.1 "Surface Water or Stormwater Management System"
means a system including, but not limited to, roadway and rear-yard
under-drains, which is designed and constructed or implemented to
control discharges which are necessitated by rainfall events,
incorporating methods to collect, convey, store, absorb, inhibit,
treat, use or reuse water to prevent or reduce flooding,
overdrainage, environmental degradation, and water pollution or
otherwise affect the quantity and quality of discharges from the
system, as permitted pursuant to Chapters 40C-4, 40C-40, or 40C-42,
F.A.C.
1.22 "Subject Property" shall mean all lands included within
and comprising Seville Chase, according to the plat thereof as
recorded in Plat Book Pages of the Public
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Records of Seminole County, Florida, together with any additional
lands the Developer may subsequently extend this Declaration to as
contemplated in Section 4.2.
ARTICLE II
OBJECTS AND PURPOSES
The covenants, conditions, restrictions, easements and
reservations set forth in this Declaration are hereby imposed upon :~
the Subject Property for the following objects and purposes: '0
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(a) To establish Seville Chase as a premier single fami~ ',-
residential community in Central Florida; ~ -~
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(b) To create, develop, foster, maintain, preserve ana
protect within Seville Chase, a unique, pleasant, attractive a~ CJ
harmonious physical environment which will contribute to ail,9 CO
enhance the quality of life for all residents of and visitors to wi
Seville Chase; ~
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(c) To ensure that the development of Seville Chase will
proceed pursuant to a uniform plan of development with consistently
high architectural, environmental, ecological and aesthetic
standards;
(d) To ensure the proper and appropriate subdivision,
development, improvement, occupation, use and enjoyment of each
Lot, piece, parcel or tract of land within Seville Chase;
(e) To protect each Lot, piece, parcel or tract of land
wi thin Seville Chase, against the improper, undesirable,
unattractive, or inappropriate subdivision, development,
improvement, occupation, use and enjoyment of contiguous, adjacent
or neighboring Lots, pieces, parcels or tracts of land;
(f) To encourage the development, construction,
maintenance and preservation of architecturally and aesthetically
attractive and harmonious Improvements appropriately designed for
and properly located on each Lot, piece, parcel or tract of land
within Seville Chase;
(g) To guard against the development and construction of
improper, undesirable, unattractive or inappropriate Improvements
and the use of improper, undesirable, unsuitable or unsightly
materials;
(h) To provide for the future ownership, management,
administration, improvement, care, maintenance, use, regulation,
preservation and protection of all Common Property within Seville
Chase and to provide for and assure the availability of the funds
required therefor;
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(i) To provide for the establishment, maintenance,
preservation, protection and enhancement of consistently high
property values within Seville Chase;
(j ) To accomplish, meet, satisfy and fulfill certain
Governmental Regulations and other governmental requirements;
(k) To provide Developer with effective control over the
development, management, administration, care, maintenance, us~;
appearance, marketing and sale of and the construction ~
Improvements upon the Subject Property for so long as Develop~
shall own portions of the Subject Property; and ~
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(1) In general, to provide for the development, creationg
operation and preservation upon the Subject Property of an
exclusive single family community of the highest quality and order ~
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ARTICLE III
EFFECT OF DECLARATION
3.1 Covenants Running with Land. This Declaration and each
and everyone of the covenants, conditions, easements, restrictions
and reservations contained herein are hereby declared to be and
shall hereafter continue as, covenants running with title to those
portions of the Subject Property upon which the same are hereby
imposed as an encumbrance.
3.2 Property Affected. This Decl aration and the covenants,
condi tions, restrictions, easements and reservations set forth
herein shall be binding upon, inure to the benefit of and
constitute a burden upon all of the Subject Property in accordance
with the terms set forth herein. Accordingly, as more particularly
specified in this Declaration, all Lots, pieces, parcels and tracts
of land within the Subject Property shall hereafter be owned, held,
transferred, sold, conveyed, demised, devised, as signed, leased,
mortgaged, occupied, used and enjoyed subject to and benefitted and
burdened by the terms and provisions of this Declaration and each
of the covenants, conditions, restrictions, easements and
reservations contained herein.
3.3 Parties Affected. Except as hereinafter specifically
provided, this Declaration shall be binding upon and inure to the
benefit of all Owners of the property affected and encumbered by
this Declaration, including Developer and the Association, and all
other persons having or claiming any right, title or interest in
such property. Accordingly, each and every person or party who or
which shall hereafter acquire, have or claim any right, title or
interest in and to any Lot, piece, parcel or tract of land within
the Subject Property, whether by, through or under Developer or any
subsequent Owner, shall, by virtue of the acceptance of any such
right, title, interest or claim, whether by deed or other
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instrument, or by operation of law or otherwise, and whether
voluntarily or involuntarily, be deemed to have acquired and
accepted such right, title, interest or claim in or to any such
Lot, piece, parcel or tract of the Subject Property subject to and
benefitted and burdened by the covenants, conditions, restrictions,
easements and reservations set forth in this Declaration the same
as if such person or party had specifically joined in and agreed
and consented to each and everyone of the terms and provisions of
this Declaration and the same as if each and everyone of the
covenants, conditions, easements, restrictions and reservations set
forth in this Declaration had been fully set forth in the deed ~
any other instrument of conveyance pursuant to which such righ~
title, interest or claim was acquired. z
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ARTICLE IV
PROPERTY SUBJECT TO DECLARATION
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4.1 Subject Property. The property which shall be subjec~
to, and encumbered, governed, benefitted and burdened by this
Declaration shall be all of the Subject Property as the same is
herein defined and described.
4.2 Addition of Property. Developer hereby reserves to
itself and shall hereafter have the right, but not the obligation,
at any time and from time to time, in its sole and absolute
discretion, and without notice to or the approval of any party or
person whomsoever or whatsoever, to impose this Declaration or
substantially similar declaration upon addi tional property adj acent
or contiguous (including, but not necessarily limited to any
additional phase of Seville Chase), by the filing of an appropriate
instrument to that effect among the Public Records of the County.
ARTICLE V
USE CLASSIFICATIONS
5.1 Residential Property. Residential Property shall include
each Lot.
5.2 Common Property. Common Property shall include all real
and personal property from time to time owned by the Association
and tracts of land, if any, shown on the Plat as owned or to be
owned by the Association, for the common use, enjoyment and benefit
of all Owners, including, but not limited to the Common Streets and
Roads, the buffer areas, the stormwater management tracts, the
benefit of landscape, wall and sign easements shown on the Plat,
the benefit of the easements established by this Declaration for
any common facilities that from time to time may be installed on
any Lot, as provided in this Declaration, and all easements, if
any, granted to the Association.
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ARTICLE VI
PERMITTED USES
6.1 Residential Property. Except as hereinafter provided in
Subsection 14.1.8 of this Declaration, Residential Property shall
be improved as and used, occupied and enjoyed solely and
exclusively for single family residential dwelling purposes and no
other uses or purposes whatsoever.
6.2 Common Property. Common Property shall be improved,
maintained, used, and enjoyed for the common recreation, health,
safety, welfare, benefit and convenience of all Owners a?9
residents of Seville Chase and their guests and invitees. _
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ARTICLE VII
USE RESTRICTIONS - RESIDENTIAL PROPERTY
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The use, occupation and enj oyment of
shall be subj ect to and governed by the
conditions and restrictions:
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7.1 Single Family Only. Except as specifically provided in
Subsection 14.1.8 of this Declaration, no use shall be made of
Residential Property other than for single family residential
dwelling purposes.
7.2 Ownership and Leasing. Ownership of Residential Property
shall be for single family residential dwelling purposes only.
Accordingly, Residential Property may not be rented or leased for
any single period of less than twelve (12) months. No "time-share
plan", as that term is defined in Section 721.05, Florida Statutes,
or any similar plan of fragmented or interval ownership of
Residential Property shall be permitted.
7.3 Subdivision. No Lot shall be subdivided nor shall any
portion of a Lot less than the whole thereof be sold, conveyed or
transferred without the prior written approval and consent of the
Developer and the City.
7.4 Commercial Activity. Except (i) the permitted activities
specifically provided in Subsection 14.1.8 of this Declaration, and
(ii) the use of a room or rooms within a residence as an in-home
office, no business, commercial, industrial, trade, professional or
other non-residential activity or use of any nature, type, kind or
description shall be conducted upon or from Residential Property or
within any Improvements located or constructed thereon. The use of
any residence must be primarily that of residential and,
accordingly, any in-home office use is secondary to the residential
use. No signs of any type advertising or describing in any way the
in-home office use or business are permitted to be placed anywhere
within the Lot or within or upon the residence. The activities or
business conducted at the in-home office shall not be such as to
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generate traffic by customers, vendors or the like, through Seville
Chase or to the residence.
7.5 Offensive Activity. No illegal, noxious, unsightly or
offensive activity shall be carried on or conducted, upon or from
Residential Property nor shall anything be done thereon which may
be or tend to become or cause an unreasonable annoyance or
nuisance, whether public or private, to residents in the immediate
vicinity or to Seville Chase in general or which may be or tend to
become an interference with the comfortable and quiet use,
occupation or enjoyment of any other Residential Property.
7.6 An:i=mals and Pets. No reptiles, livestock, poultry c.or-
animals of any kind, nature or description shall be kept, bred~r ~~
raised upon Residential Property, except for dogs, cats, birds ~r~
other usual and customary household pets which may be kept, rai~d
and maintained upon Residential Property, provided that the same
are not kept, raised or maintained thereon for business ~ <,'::'")
commercial purposes or in number deemed unreasonable by Developer ~J
or the Association, in the exercise of their reasonable discretio~.
Numbers in excess of two (2) of each such type of household pet
(other than aquarium kept fish) shall prima facia be considered
unreasonable. Notwithstanding the foregoing provisions of this
Section 7.6 permitting dogs, cats, birds or other usual and
customary household pets, however, no such reptiles, animals, birds
or other pets may be kept, raised or maintained on Residential
Property under circumstances which, in the good faith judgment of
Developer or the Association, shall constitute an unreasonable
annoyance, hazard, or nuisance to residents in the vicinity or an
unreasonable interference with the comfortable and quiet use,
occupation and enjoyment of other Residential Property.
7.7 Commercial and Recreational Vehicles.
(a) No truck, bus, trailer or other" commercial vehicle"
(as that term is hereinafter defined) and no mobile home, motor
home, house trailer, camper, van, boat, personal watercraft (jet
skis) boat trailer, horse trailer or other recreational vehicle or
the like shall be permitted to be parked or stored on Residential
Property unless the same shall be parked or stored entirely within
and fully enclosed by a garage, nor shall any such commercial or
recreational vehicle or the like be permitted to be parked or
stored on any street within the Subject Property. Notwithstanding
the foregoing, however, it is expressly provided that commercial
vehicles shall be permitted to be parked on or in front of (but not
adj acent to) Residential Property on which bona fide ongoing
construction activity is taking place; nor shall the foregoing
provisions of this Subsection (a) apply to parking on "a temporary
or short-term basis" (as that term is hereinafter defined).
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(b) No passenger automobile or commercial, recreational
or other motorized vehicle, or the like, shall be dismantled,
abandoned, serviced, rebuilt, repaired, or repainted on Residential
Property. Neither shall any such automobile or vehicle be parked
or stored on Residential Property. Notwithstanding the foregoing
provisions of this Subsection (b), however, it is expressly
provided that the foregoing restriction shall not be deemed to
prevent or prohibit those activities normally associated with and
incident to the day-to-day maintenance, washing, waxing and
polishing of such vehicles.
(c) No motorcycle, motor scooter, moped, ATV (all-"
terrain vehicle) or other two-wheeled, three-wheeled or four-C:;
wheeled motorized vehicle, or the like, shall be permitted to b~
parked or stored on Residential Property unless the same shall b~
parked or stored entirely within and fully enclosed by a garage. ~
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(d) In the context of this Section 7.7, parking on "a~
temporary or short-term basis" shall mean and be defined as parking~
for a continuous period not exceeding twenty-four (24) hours inr
duration. Parking on "a temporary or short-term basis" is
permitted only for (i) recreational vehicles belonging to overnight
guests of Owners, (ii) commercial vehicles used in connection with
the furnishing of services and/or the routine pick-up and delivery
respectively, of materials from and to Residential Property
(including those commercial vehicles used in connection with a bona
fide current on-going construction of Improvements on Residential
Property), and (iii) commercial or recreational vehicles belonging
to or being used by Owners for loading and unloading purposes only.
Notwithstanding anything contained herein to the contrary, parking
on "a temporary or short-term basis" is prohibited from occurring
as to any Lot more frequently than three (3) times in each calendar
year.
(e) In the context of this Section 7.7 the term
"commercial vehicle" shall mean and be defined as a truck, motor
home, bus or van of greater than three-quarter (3/4) ton capacity
displayed on any part thereof advertising any kind of business or
on or wi thin which any commercial materials and/or tools are
visible.
(f) The Developer and the Association shall, subject to
reasonable approval by the City, each be entitled and is hereby
empowered to adopt additional reasonable rules and regulations
governing the admission to and parking, use and storage of
commercial and recreational vehicles within Seville Chase, and if
so adopted the same shall be binding upon all Residential Property
and all Owners and their guests and invitees.
(g) Any commercial, recreational, or other vehicle
parked or stored in violation of these restrictions or in violation
of any rule and regulation adopted by the Association concerning
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the same may be towed away or otherwise removed by or at the
request of the Association and at the sole expense of the Owner of
the Lot upon which any such commercial, recreational or other
vehicle is parked in violation of these restrictions or such rules
and regulations. In the event of such towing or other removal, the
Association and its employees or agents shall not be liable or
responsible to the owner of such vehicle for trespass, conversion,
or damage incurred as an incident to or for the cost of such
removal or otherwise; nor shall the Association, its employees or
agents be guilty of any criminal act or have any civil liability by
reason of such towing or removal, and neither its towing or removal
nor the failure of the owner of the towed or removed vehicle to
receive any notice of the violation of the provisions of th~
Section 7.7 shall be grounds for relief of any kind. 4~
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7.8 Maintenance. Each Lot and all Improvements, includin~
landscaping, located thereon shall at all times be kept anch
maintained in a safe, clean, wholesome and attractive condition an~
shall not be allowed to deteriorate, fall into disrepair or becom~
unsafe or unsightly. In particular, no weeds, underbrush or other
unsightly growth and no trash, rubbish, refuse, debris or unsightly
objects of any kind shall be permitted or allowed to accumulate on
Residential Property. Enforcement of the provisions of this
Section 7.8 shall be in accordance with the provisions of Section
7.20 of this Declaration and such other provisions of this
Declaration as shall be applicable to its enforcement generally.
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7.9 Reconstruction of Damaged Improvements. In the event that
a residential dwelling or other Improvements on Residential
Property shall be damaged or destroyed by casualty, hazard or other
cause, including fire or windstorm, then, wi thin a reasonable
period, not exceeding three (3) months following the occurrence of
the offending incident, the Owner of the affected Residential
Property shall cause the damaged or destroyed Improvements to be
repaired, rebuilt or reconstructed or to be removed and cleared
from such Residential Property. Any such repair, rebuilding or
reconstruction shall be approved and accomplished as otherwise
required pursuant to the provisions of this Declaration.
Enforcement of the provisions of this Section shall be in
accordance with the provisions of Section 7.20 of this Declaration
and such other provisions of this Declaration as shall be
applicable to its enforcement generally.
7.10 Garbage and Garbage Containers. All garbage and trash
containers and their storage areas and the like shall be kept
within a garage or placed inside of an enclosure approved by the
Architectural Review Board or behind opaque walls attached to and
made a part of the single family residential dwelling constructed
on each Lot and otherwise in conformity with applicable rules and
regulations. In no event shall any of the same be visible from any
adjacent or neighboring property including all of the streets and
roads of Seville Chase. Further, all garbage and trash containers
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and their storage areas shall be designed and maintained so as to
prevent animals from gaining access thereto. All such containers
shall be put out for pickup or removal, and shall be removed from
the street and placed back in their storage areas the night of such
pickup or removal.
7.11 Burning. No burning of leaves, trash, rubbish, garbage
or other waste materials of any type shall be permitted or
conducted on Residential Property. Nothing herein contained
however, shall be deemed to prohibit the burning of wood, logs or
charcoal in properly constructed or installed fireplaces, barbec~
cookers or the like, whether inside or outside of any building o~
other structure located on Residential Property. ~ -r
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7.12 Storage Tanks. No storage tanks, including but not ~
limited to, those for water, oil, propane gas or other liquidg
fuels or chemicals, including those used for swimming pools or the
like, shall be permitted outside of a building on Residentiap
Property unless the same shall be placed inside of walls, fences or
similar type enclosures in conformity with applicable rules and
regulations. In no event shall any of the same be visible from any
adjacent or neighboring property.
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7.13 Mineral Exploitation. No exploration, mining, quarrying,
or drilling for or exploitation of gas, oil or phosphate shall be
conducted on Residential Property.
7.14 Laundry and Clothes Drying. No laundry or clothes
drying lines or areas shall be permitted outside of any building on
Residential Property unless the same shall be placed inside of
walls, fences, landscaping screens or similar type enclosures in
conformity with applicable rules and regulations adopted and
promulgated by the Association with respect thereto. In no event
shall any of the same be permitted if visible from any adjacent or
neighboring property.
7.15 Radio Transmission Equipment. No radio, microwave or
other electronic transmission equipment, including ham radios,
citizens band radios, walkie talkies and the like, shall be
operated on Residential Property without the prior written consent
of the Association, and such consent, once given, may be revoked by
the Association in the event that the operation of any such
equipment interferes with ordinary radio, telephone or television
reception or equipment.
7.16 Signs. No sign, billboard or advertising of any kind
shall be displayed to public view on Residential Property without
the prior written consent of the Architectural Review Board; except
as follows, to wit: (a) one (1) discreet professionally prepared
sign not exceeding four (4) inches high and eighteen (18) inches
long identifying the name of the Owner and/or construction lender
of a particular Lot, and (b) one (1) discreet professionally
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prepared sign of not more than five (5) square feet placed on the
street side of a Lot identifying the architect and general
contractor responsible, respectively, for the design and
construction of a dwelling under construction on a particular Lot
provided, however, that such sign is first approved in writing by
Developer, and (c) one (1) discreet professionally prepared "for
sale" sign of not more than five (5) square feet placed on the
street side of a Lot; provided, however, that such sign is first
approved in writing by the Architectural Review Board.
Notwithstanding the foregoing provisions of this section, Developer
specifically reserves for itself and its agents, employees, (0
nominees and assigns the right, privilege and easement to~
construct, place and maintain upon Residential Property signs as i t:=
deems appropriate in connection with the development, improvement, ~
construction, marketing and sale of any Residential Property. rT'1
Except as hereinabove provided, no signs or advertising materials g
displaying the names or otherwise advertising the identity of
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contractors, subcontractors, real estate brokers or the like I
employed in connection with the construction, installation,
alteration or other improvement upon or the sale or leading of
Residential Property shall be permitted.
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7.17 Trees. No trees shall be removed from any Lot without
the prior written consent of the Architectural Review Board;
provided, however that such removal shall be in compliance with
Governmental Regulations. Such approval shall be reasonably given,
however, if such removal is necessary in connection with the
location of the main residential dwelling on a particular Lot where
the preservation of any tree would work a hardship or require
extraordinary design measures in connection with the location of
such dwelling on the Lot and the plans and specifications for and
location of one dwelling on the Lot have been approved by the
Architectural Review Board as provided in Article XV hereof. As
used herein the term "tree" shall mean and be defined as any
living, self-supporting perennial plant which has a trunk diameter
of at least three (3) inches measured at D.B.H. (at the base of the
tree) and normally grows to a minimum height of fifteen (15) feet.
Any tree( s) removed in violation of this provision shall be
immediately replaced with a tree of similar size and type.
7.18 Drainage. All storm water from any Lot shall drain into
or onto contiguous or adj acent street rights-of-way, drainage,
easements, or retention areas. Storm water from any Lot shall not
be permitted or allowed to drain or flow unnaturally onto, over,
under, across or under any contiguous or adj acent Lot unless a
drainage easement shall exist for same and same is done in
accordance with any and all applicable governmental permits and
approvals. All work done on any Lot affecting or pertaining to the
Lot grade, original drainage plan, the flow of surface water
drainage, the alteration or removal of any drainage or
environmental berm or swale or any storm berm or swale, must be in
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accordance with the site grading and drainage plans for the Lot
approved by the City.
7.19 Rules and Regulations. In addition to the foregoing
restrictions on the use of Residential Property, the Association
shall have the right, power and authority, subject to the prior
written consent and approval of Developer, to promulgate and impose
reasonable rules and regulations governing and/or restricting the
use of Residential Property and to thereafter change, modify,
al ter, amend, rescind and augment any of the same; provided , , "
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however, that no rules or regulations so promulgated shall be in
conflict with the provisions of this Declaration. Any such rUl~ .J
and regulations so promulgated by the Association shall be ~
applicable to and binding upon all Residential Property and t~
Owners thereof and their successors and assigns, as well as aFi
guests or invitees of and all parties claiming by, through or und~
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7.20 Enforcement. In the event of a violation of or failuPe
to comply with the foregoing requirements of this Article VII and
the failure of the Owner of the affected Lot, within fourteen (14)
days following written notice by the Association of such violation
or non-compliance and the nature thereof, to cure or remedy such
violation, then the Association or its duly appointed employees,
agents or contractors, shall have and are specifically granted an
easement and license, at the Association's option, to enter upon
the affected Lot or any portion or portions thereof or Improvements
thereon, without being guilty of any trespass therefor, for the
purpose of undertaking such acts or actions as may be reasonably
necessary to cure or eliminate such violation; all at the sole cost
and expense of the Owner of the affected Lot. Such costs and
expenses, together with an overhead expense to the Association of
fifteen percent (15%) of the total amount thereof shall be assessed
by the Association as an Individual Lot Assessment. An Individual
Lot Assessment shall be payable by the Owner of the affected Lot to
the Association within ten (10) days after written notice of the
amount thereof. Any such Individual Lot Assessment not paid within
said ten (10) day period shall become a lien on the affected Lot in
accordance with the provisions of Section 10.5 of this Declaration.
7.21 Precedence Over Less Stringent Governmental Regulations.
In those instances where the covenants, conditions and restrictions
set forth in this Article VII set or establish minimum standards or
limi tations or restrictions on use in excess of Governmental
Regulations, the covenants, conditions and restrictions set forth
in this Article VII shall take precedence and prevail over less
stringent Governmental Regulations. Conversely, in those instances
where Governmental Regulations set or establish minimum standards
or limitations or restrictions on use in excess of the covenants
condi tions and restrictions set forth in this Article VII, th~
Governmental Regulations shall take precedence and prevail over the
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less stringent, covenants, conditions and restrictions set forth in
this Article VII.
ARTICLE VIII
BUILDING RESTRICTIONS - RESIDENTIAL PROPERTY
The erection, placement, construction, repair, replacement and
installation of all Improvements on Residential Property shall be
subject to and governed by the following covenants, conditions,
restrictions and reservations:
8.1 Building Type. As the use of Residential Property is
limited to single family residential dwelling purposes only, n~~
building or structure other than one (1) single family residence or~
dwelling and its related appurtenances, facilities and Improvement~
shall be placed, located, erected, constructed or installed orb
permitted to remain on Residential Property. ~
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8.2 Approved Plans. All Improvements must be constructed in~
accordance with detailed plans and specifications prepared in-:-,
conformance with all applicable Governmental Regulations and'
approved by the Architectural Review Board prior to the
commencement of construction as more particularly provided in
Article XV of this Declaration.
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8.3 Governmental Regulations. All Improvements placed,
located, erected, constructed and installed upon Residential
Property shall conform to and comply with all applicable
Governmental Regulations, including, without limitation, all
building and zoning regulations of the City.
8.4 Design Standards Manual. All Improvements shall be
placed, located, erected, constructed, installed and maintained on
Residential Property in conformance with the Design Standards
Manual for which provision is made in Article XV of this
Declaration as the same may be changed, amended or modified from
time to time.
8.5 Construction. The construction of all residential
dwellings and other Improvements on Residential Property must be
performed by such builders, general contractors and subcontractors
as are (a) licensed in the State of Florida and the City to engage
in the business of residential building and construction, and (b)
approved in writing by Developer as being qualified and otherwise
acceptable to Developer to perform construction work within Seville
Chase. The latter approval shall be within the sole and absolute
discretion of Developer.
8.6 Construction Time. Unless and otherwise approved by the
Architectural Review Board in writing, construction of residential
dwelling and other Improvements must be commenced not later than
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six (6) months from the date that the Architectural Review Board
issues its written approval of the final plans and specifications
therefor. If construction does not commence within such six (6)
month period the plans and specifications for any proposed
construction must once again be reviewed and approved by the
Architectural Review Board in accordance with the provisions of
Article XV of this Declaration and any prior approval of the same
by the Architectural Review Board shall no longer be binding on the
Architectural Review Board. Upon commencement of construction,
such construction shall be prosecuted diligently, continuously and
without interruption to completion within a reasonable time; but in
no event more than one (1) year from the date of the commencement
of such construction, however, the Architectural Review Board sha~
have the power and authority to extend the period permitted for'~
construction, as aforesaid; provided that the Owner and gener~
contractor involved make written application for such extensi~
stating the reasons for the requested extension of time an~
provided further that the Architectural Review Board, in thg
exercise of its reasonable discretion, determines that the request
is reasonable and the extension is warranted. ~
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8.7 Height Limitation. No Improvement on Residential
Property shall exceed thirty-five (35) feet in height, from the
finished grade to the roof peak at its highest point, except as
expressly permitted by the Architectural Review Board. Each
residential dwelling on a Lot shall consist of not more than two
(2) full stories (not including basement) unless otherwise approved
in writing by the Architectural Review Board.
8.8 Building Setback Lines. No part of any building shall be
constructed, erected, placed or installed any closer to the
property boundary lines of Residential Property than as follows, to
wit:
8.8.1 Lots. No closer than thirty-five (35) feet to the
front yard (street side) property boundary line; thirty-five (35)
feet to the rear yard property boundary line; and ten (10) feet to
the side yard property boundary lines on interior lots.
8.8.2 Corner Lots. On corner lots, the front line
setback of thirty-five (35) feet or more must be maintained, but a
fifteen (15) foot sideline setback will be permitted on the street
sideline, provided the corner lot faces the same way as all other
lots in the block. If the building faces the long dimension of the
lot, or where corner lots face a different thoroughfare than the
other lots in the block, the thirty-five (35) foot or greater
setback must be maintained from both thoroughfare~.
8.8.3 Exclusions Those Improvements specified in
Section 8.9 below shall be excluded from the building setback lines
established in this Section 8.8.
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8.9 Other Setback Lines. Improvements other than the main
residential dwelling on a Lot shall be placed, located, erected,
constructed or installed no closer to the property boundary lines
of Residential Property, by type of Improvement, than as follows:
8.9.1 Swimming Pools. No closer than the otherwise
established side yard building setback line plus three (3) feet and
no closer than ten (10) feet to any rear yard property boundary
line from the water's edge. No swimming pools shall be
constructed in front or side yards.
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8.9.2 Swimming Pool Decks, Patios and Enclosures. ~
swimming pool deck or patio, whether constructed of concrete,~
cool deck, aggregate wood or any other material shall be 0
constructed nearer than seven (7) feet to any rear yard propert~
line or nearer than the otherwise established side yard buildi~
setback line to any side yard property line. A screen enclosu~
shall be constructed no closer than seven (7) feet to any rea~
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proper y llne.
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8.9.3 Outbuildings and Accessory Structures. All
outbuildings and accessory structures shalJ.be--1ncated..-WiLhin.
the bui19_~~~tback lines Q..~herwise established for the main
residential dwelling on any Lot-un'less otherwise approved in
wri fTng oy---tn-e,-=A'r:c::1iIt""c-tura 1 Review'"Board . No such' o'u'E5uilding
or accessory structure shall exceed twelve (12) feet in height,
measured from ground level, nor have an area in excess of two
hundred forty (240) square feet. No more than a total of two
( 2) outbuildings or accessory structures, or combinations
thereof, shall be located on any Lot and no such outbuilding or
accessory structure may be utilized as living quarters.
8.9.4 Design Standards Manual. All other Improvements
on Residential Property shall be set back from property boundary
lines, as specified in the Design Standards Manual if one is in
existence, otherwise as specified by the Association.
8.10 Intentionally Blank.
8.11 Dwelling Size. Each single family residential dwelling
constructed on Residential Property shall have a minimum heated and
cooled living area of two thousand (2000) square feet.
8.12 Temporary Improvements. No buildings, structures
improvements or other facilities of a temporary nature, including
trailers, tents or shacks shall be permitted on Residential
Property; provided, however, that temporary improvements or
facilities used solely in connection with and during the period of
the construction of approved permanent Improvements may be
permitted by the Architectural Review Board, in its discretion,
during the period of the construction of such permanent
Improvements so long as the same have been properly permllted by
applicable governmental authorities, are located as inconspLcuously
as possible, are removed immediately following the completion of
such construction, and are not utilized as living quarters. The
17
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location of such temporary improvements during construction shall
be approved in writing by the Architectural Review Board.
8.13 Garages and Carports. No carports shall be placed,
erected, constructed, installed or maintained on Residential
Property. Each single family residential dwelling constructed and
maintained on Residential Property shall have an attached garage as
an appurtenance thereto. All garages shall be for not less than
two (2) standard sized passenger automobiles. Garages for more
than three (3) automobiles must be specifically approved by the
Archi tectural Review Board. Each garage shall have a minimum
width, as measured from inside walls, of ten (10) feet per car an~
a minimum depth for each car of twenty-one (21) feet. Garages ma~
also contain appropriately sized storage rooms, recreationa~-
workshops and tool rooms as approved by the Architectural Revie~
Board. Subject to the granting of a variance by the Architectura~
Review Board as hereinafter provided, all garages shall b~
designed, erected, constructed, installed or maintained as side='
entry/load in such manner that the garage doors thereof shall no~
face any street or the front of any residence. All garages must
have garage doors that are operated by electric door openers kept
in operable condition and all garage doors shall remain closed at
all times; save and except for the temporary opening of same in
connection with the ingress and egress of vehicles and the loading
or placement and unloading or removal of other items customarily
kept or stored therein. No garage shall be converted to another
use (e. g., living space) without the substitution, on the Lot
involved, of another garage meeting the requirements of this
Section 8.13 of this Declaration and the approval of the
Architectural Review Board as otherwise provided in this
Declaration. Notwi thstanding the foregoing provisions of this
Section 8.13, because of the peculiarities of the size, shape,
configuration, location and other physical characteristics of many
Lots within Seville Chase, it may be impossible or impractical to
design, erect, construct, install or maintain garages in such
manner that the garage doors thereof do not face and are not
visible from any street or the front of any residence.
Accordingly, it is expressly provided that Developer without the
consent of the Architectural Review Board, or the Architectural
Review Board only with the consent of Developer, in their sole and
absolute discretion, shall be entitled, and are hereby authorized,
to grant waivers of and/or variances from such restriction in any
particular instance and with respect to any particular Lot or
Improvement. To the extent that any such waiver and/or variance is
granted by the Developer and/or the Architectural Review Board, as
aforesaid, the same shall not be deemed to be a precedent for the
granting of such or any similar waiver or variance in any other
particular instance or with respect to any other particular Lot or
Improvement.
8.14 Curb Cuts. Vehicular access to each Lot on Residential
Property shall be through or over such driveway or driveways and
curb cut or curb cuts as shall be approved by the Architectural
Review Board prior to construction. The location, size and angle
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of the approach of all driveways and curb cuts shall be subject to
the approval of the Architectural Review Board.
8.15 Driveways. All driveways, turnarounds and parking area
shall have a concrete base and shall be paved or finished with
hard dust-free material approved by the Architectural Review Board
or otherwise specified in the Design Standards Manual. Each
driveway shall extend the entire distance from the garage door to
the paved portion of the street or roadway in front of or adjace~~
to the Lot on which such driveway is constructed. ~
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8.16 Roofs. The roofs of the main body of all buildings an~
other structures, including the principal residence, shall b~
pitched. No flat roofs shall be permitted without the approval o~
Developer and the Architectural Review Board. Developer ancP
Architectural Review Board may, in their discretion, approve flat~
roofs on part of the main body of a building if architecturally
compatible with the remainder of the roof structure, the particular
building on which it is to be constructed and all adjacent
residences and other structures. The pitch of all roofs shall be
not less than six inches (6") in twelve inches (12") (6/12
vertical/horizontal) or as otherwise specified in the Design
Standards Manual. All roofs shall be constructed of clay, tile,
cement tile, slate, standing seam copper, cedar shake shingle, 25
year architectural dimensional shingle or other materials specified
in the Design Standards Manual or otherwise approved by the
Architectural Review Board. All roof colors must be approved by
the Architectural Review Board. No pure white, pure black or pure
primary colored roofs shall be permitted.
8.17 Roof Structures. No antennas, windmills, appliances,
rooftop attic ventilators, fans, solar collector panels or other
rooftop installations or structure of any type shall be placed,
located, erected, constructed, installed or maintained upon the
exterior roof of any building or structure unless the same shall
first be approved in writing by the Architectural Review Board and
shall otherwise be erected, constructed, installed and maintained
on the rear yard side of the roof or otherwise in such manor and at
such location that the same shall not be visible from any street or
neighboring residences.
8.18 Antennas. Etc. No antennas, aerials, discs, dishes or
other devices for the transmission or reception of radio or
television signals or any other form of electromagnetic radiation
or communication shall be erected, constructed, installed, used or
maintained outside of any building or structure on Residential
Property whether or not the same is attached to or detached from a
building or a structure unless first approved in writing by the
Architectural Review Board.
8.19 Windows. The windows of all buildings on Residential
Property shall have frames and window hardware, if any, constructed
of wood or such other materials as shall be in conformance with the
applicable provisions of the Design Standards Manual. In no event
shall raw or silver aluminum windows be permitted.
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8.20 Reflective or Mirrored Glass. No reflective or mirrored
glass shall be used on, in or for the windows or doors of buildings
or other Improvements constructed upon Residential Property. No
tinted windows or doors shall be permitted unless first approved by
the Architectural Review Board in writing taking into account the
degree of tinting and the aesthetics of the Improvements involved.
8.21 Awnings, Shutters and Window Coverings. No window of
any building or other Improvements constructed upon Residenti~
Property shall be covered by any awnings, canopies, shutter~
(including hurricane or storm shutters), boards, or similar ty~
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window coverings, except as approved by the Architectural Review
Board or such as may be required for protection from storms an~
only then during the period of any such storm. Nor shall any suc~
windows be covered by or coated with any foil or other reflectin~
or mirrored materials. The foregoing restriction shall not b~
construed as a prohibition against decorative exterior shutters
located to the side of window openings or as a prohibition against
suitable awnings located over or above window openings.
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8.22 Exterior Air Conditioning Equipment. All air
conditioning compressors and other equipment located outside of
residential dwelling shall be screened from the view of street and
road rights-of-way, and adjacent Lots by opaque walls attached to
and made a part of each single family residential dwelling and
otherwise in conformity with the applicable provisions of the
Design Standards Manual or as otherwise approved by the
Architectural Review Board. Absolutely no window or roof mounted
air conditioning units shall be permitted for any residential
dwelling, other than as may be approved by the Association for use
in an outbuilding or accessory structure.
8.23 Fences and Walls. Other than those constructed by
Developer and/or the Association wi thin the Wall and Landscape
Easements established pursuant to Subsection 14.1.4 of this
Declaration or pursuant to the Plat, no fences or walls shall be
erected on Residential Property unless approved in writing by the
Architectural Review Board. The height of all fences or walls
shall be subject to the control and approval of the Architectural
Review Board. All fences and walls shall be constructed of wrought
iron, brick, painted and exterior-treated wood, stucco or other
masonry materials and shall conform to guidelines and
specifications otherwise set forth in the Design Standards Manual.
Exception to such specifications may be permitted by the
Architectural Review Board, in its discretion; provided, however,
that in no event shall uncovered or exposed (whether concrete or
concrete blocks, painted or not) chain link or prefabricated wooden
fences be permitted.
8.24 Swimming Pool Screens. No swimming pools shall be
enclosed by any screen, screening or other enclosure or under a
roof of any kind unless the same shall be located entirely within
the extension of the side walls of the main residential dwelling on
20
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the Lot on which such swimming pool is located. All pools shall be
subject to approval by the Architectural Review Board.
8.25 Exterior Building Materials, Finishes and Colors. All
exterior building materials, finishes and colors shall be in
conformance with the applicable provisions of the Design Standards
Manual or as otherwise approved by the Architectural Review Board.
Uncovered or exposed (whether painted or not) concrete or concrete
block shall not be permitted as the exterior finish of any buildin~,
structure or wall. The foregoing restriction shall be equall~
applicable to the initial as well as any subsequent painting of an~
Improvements located on Residential Property. \
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8.26 Exterior Lighting. Exterior lighting or illumination ofg
buildings, yards, parking areas, sidewalks and driveways on a Lot~
shall be designed and installed so as to avoid visible glare \
(direct or reflected) from street and road rights-of-way, and other
Residential Property. All exterior lighting shall conform to and
wi th the applicable provisions of the Design Standards Manual.
Special exceptions to such specifications may be approved by and
wi thin the discretion of the Architectural Review Board upon a
showing of good cause therefor.
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8.27 Mailboxes and Other Delivery Boxes. Until such time as
the United States Post Office Department shall approve mail
delivery service to Seville Chase to or at wall receptacles or
mailboxes attached to each single family residential dwelling, each
Lot on which a single family residential dwelling is constructed
and completed (as evidenced by the issuance of a certificate of
occupancy therefor) shall have a street or roadside mailbox of the
break-away type for the delivery of United States mail. The
design, construction and location of such mailbox shall be in
strict conformance with the applicable provisions of the Design
Standards Manual or as otherwise approved by the Architectural
Review Board in writing; it being expressly provided, however, that
the Architectural Review Board must approve a location consistent
with the rules and regulations of the United States Post Office
Department. At such time as the United States Post Office
Department shall approve and make mail deliveries within Seville
Chase to or at wall receptacles or mailboxes attached to each
single family residential dwellings, each Owner, upon notice and
the request of the Association, shall remove and replace the street
or roadside mailbox on his Lot with a receptacle or mailbox
attached to the single family residential dwelling constructed on
his Lot. All other delivery boxes or receptacles of any kind,
including those for newspapers, milk and other similar home
deliveries, shall also be designed, constructed and located in
conformance with the applicable provisions of the Design Standards
Manual or as otherwise approved by the Architectural Review Board,
Developer shall have the right to require that all street or
roadside mailboxes shall be of one particular type or design,
specified by Developer so long as such designated type or design
meets the rules and regulations of the United States Post Office
Department.
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8.28 Underground Utilities. All utility lines and facilities
shall be located and installed underground or concealed under or
within a building or other on-site Improvements approved by the
Architectural Review Board; provided, however, that the foregoing
restriction shall not be deemed to prohibit the fOllowing: (a)
temporary electric power and telephone service poles and water
lines which are incident to the ongoing construction of approved ~0
permanent improvements, and, provided further, that the same ar~
removed immediately fOllowing the completion of such constructio~ ,0
(b) above-ground electric transformers, meters and simila~ _~
apparatus properly screened as specified in the Design Standard~
Manual or as otherwise approved by the Architectural Review Board~
(c) permanent outdoor safety light poles located and installed i~ ~
conformance with the applicable provisions of the Design Standards~ O~
Manual, or as otherwise approved by the Architectural Review Board. ~ 01
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8.29 Landscaping. Each Lot shall be landscaped in accordance
with a landscape plan which is (a) in conformance with the
applicable provisions of and using the plant pallet specified in
the Design Standards Manual and (b) otherwise approved by the
Archi tectural Review Board. All I andscaping approved by the
Architectural Review Board shall be installed within thirty (30)
days after the completion of construction of the main residential
dwelling on a Lot as evidenced by the issuance of a certificate of
occupancy for such dwelling.
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8.30 Grass. No type or variety of grass other than st.
Augustine grass shall be planted on Residential Property, and such
grass shall be planted only in those areas where specified on the
landscape plan approved by the Architectural Review Board. The
planting of grass on Residential Property shall be accomplished by
the installation of full sod covering the entire area required to
be grassed. Partial sodding, springing, plugging or seeding shall
not be permitted.
8.31 Trees. The provisions of Section 7.18 of this
Declaration shall be applicable to the building or construction of
any single family residential dwelling or other structure or
Improvements on Residential Property and such provisions are
incorporated in this Article VIII by this reference thereto.
8.32 Irrigation Systems. All landscaped and grassed open
areas on Residential Property (including such areas which are
wi thin road rights-of-way adj acent to and contiguous with the
Residential Property) shall be irrigated by means of an automatic
underground irrigation or sprinkling system capable of regularly
and sufficiently irrigating all lawns and plantings within such
open areas. The plans and specifications for each such irrigation
or sprinkling system shall be included in and submitted with and
reviewed and approved by the Architectural Review Board as part of
the landscape plan required pursuant to the provisions of Section
8.2 of this Declaration. Any irrigation or sprinkling system
affecting public road rights-of-way must also be approved by the
Public Works/Director of the City. Such irrigation or sprinkling
system shall be installed prior to or simultaneously with the
22
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implementation of the landscape plan approved by the Architectural
Review Board; but in any event within the time provided in Section
8.29 of this Declaration for the installation of landscaping.
8.33 Artificial Vegetation. No artificial vegetation shall
be permitted on the portion of any Lot outside of any building on
the Lot.
8.34 Precedence Over Less Stringent Governmental Regulations.
In those instances where the covenants, conditions and restrictions
set forth in this Article VIII set or establish minimum standards
in excess of Governmental Regulations, including, without
limitation, building and zoning regulations, the covenants,
conditions and restrictions set forth in this Article VIII, of this
Declaration shall take precedence and prevail over less stringent
Governmental Regulations. Conversely, in those instances where
such Governmental Regulations set or establish minimum standards in
excess of the covenants, conditions and restrictions set forth in
this Article VIII, the Governmental Regulations shall take
precedence and prevail over less stringent covenants, conditions
and restrictions set forth in this Article VIII.
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8.35 Waivers, Exceptions and Variances by Developer.
Notwithstanding anything to the contrary set forth in or which may
otherwise be implied from the terms and provisions of this
Declaration, Developer specifically reserves exclusively unto
itself, for the duration hereinafter specified, the right and
privilege (but Developer shall have absolutely no obligation), upon
a showing of good cause therefor, to: (a) grant waivers with
respect to any existing or proposed future deviation from, or
violation or infraction of, the building restrictions specified in
this Article VIII of this Declaration where, in the reasonably
exercised good faith judgment and discretion of Developer,
Developer shall determine or decide that such deviation, violation
or infraction is de minimis, minor, or insignificant, and (b) grant
waivers of, exceptions to, or variances from, the building
restrictions specified in this Article VIII of .this Declaration
where special conditions and circumstances exist which are peculiar
to a particular Lot and not generally applicable to other Lots
(e.g., because of its unusual size, configuration or location) or
where a literal interpretation or application of any such building
restriction to a particular Lot would be inappropriate, inequitable
or otherwise work or result in a hardship or deny such Lot and the
Owner thereof specific rights which are generally enjoyed by other
Lots and Owners; it being expressly provided, however, that, in all
cases, Developer, in its exercise of such right and privilege
shall, in its reasonably exercised and good faith judgment and
discretion determine or decide that its grant of any such waiver
exception or variance shall not result in, represent, be or
constitute a significant deviation of or derogation from (a) the
uniform plan of development for Seville Chase, (b) the hLgh
architectural, ecological, environmental and aesthetic standards
otherwise established for Seville Chase, or (c) the objects and
purposes of this Declaration as hereinabove enumerated in Article
II of this Declaration. Notwithstanding anything to the contrary
23
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contained in this Section, any waivers of, exceptions to, or
variances from said building restrictions shall be in compliance
with Governmental Regulations. Developer shall have such right and
privilege to grant waivers, exceptions and variances, as aforesaid,
until either (a) the expiration of a period of fifteen (15) years
from the date of the recordation of this Declaration among the
Public Records of the County, or (b) the sale by Developer in the
ordinary course of business, and not in bulk, of ninety percent
(90%) of all Lots in Seville Chase, whichever shall last occur. ~~
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Following the occurrence of the last of the foregoing events t~ ~0
occur, the right and privilege of Developer to grant waivers2
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exceptions and variances, as aforesaid, shall be delegated an~
assigned by Developer to and thereafter vest in the Architectura~
Review Board. To the extent that any such waiver, exception o~
variance is granted in a particular instance or with respect to anyg ~
particular Lot or Improvement pursuant to the provisions of this' CO
Section 8.35, as aforesaid, the same shall not be deemed to be a ~ ,~
precedent for the granting of such or any similar waiver, exception l~
or variance in any other particular instance or any other
particular Lot or Improvement.
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8.36 Architectural Review Board Approval. Notwithstanding
any other provision of this Declaration to the contrary, no
Improvements may be constructed upon any Lot except by licensed
building contractors approved by the Developer in its sole
discretion and named on the list of Exclusive Builders maintained
by the Architectural Review Board at the time of construction on
the Lot. Any approval by the Architectural Review Board of any
plans and specifications for Improvements on any Lot shall be
subject to the Owner conforming to the requirements of this Section
8.36. The Developer and the Association reserve the right to
enforce the provisions of this Section 8.36 by injunction or other
remedies available at law or equity.
ARTICLE IX
COMMON PROPERTY
9.1 Additional Property. In addition to the Common Property
described in Section 5.2 of this Declaration or included within the
term "Common Property" as defined in Article I of this Declaration,
Developer, in its sole discretion, shall have the right to convey
to the Association and the Association shall be obligated to accept
any other portion of the Subj ect Property or any other real
property owned by Developer so long as such property is used or
useful for any of the objects and purposes for which the
Association has been created and established. Should Developer so
convey any such additional property, the same shall thereupon
become and thereafter continue to be Common Property which shall be
subject to all covenants, conditions, restrictions, easements and
reservations set forth In this Declaration with respect to all
other Common Property.
9.2 Restriction on Use. Subsequent to the conveyance of any
Common Property to the Association by Developer, the Common
Property shall, subject only to the easements specified in Article
24
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XIV of this Declaration, be developed, improved, maintained, used
and enjoyed solely for the purposes specified in this Declaration
and in the instrument of conveyance and for the common health,
safety, welfare and passive recreation of the residents of and
visitors to Seville Chase and for no other purpose or purposes
whatsoever. No other use shall be made of the Common Property
without the prior written consent of Developer.
9.3 Restriction on Conveyance. Subject only to the
provisions of Section 12.5 of this Declaration, subsequent to the .~..0
conveyance of any Common Property to the Association by DeveloperuJ
the Common Property may not be subdivided, partitioned, soldL'; \"
transferred, conveyed, alienated, leased, mortgaged or hypothecatecti ......
by the Association in any manner whatsoever without the prio:r:o
written consent of Developer. Neither shall the Common Property be~
abandoned by the Association without the prior written consent ofn
Developer. Upon a violation of the provisions of this Section 9.3,?
ti tIe to any Common Property so subdivided, partitioned, SOld,;
transferred, conveyed, alienated, leased, mortgaged or hypothecated
by the Association without the prior written consent of Developer
shall automatically revert to the Developer upon the filing by
Developer among the Public Records of the County of an appropriate
declaration of its intention to accept such reversion. Upon any
such reverter, any restriction upon, subdivision of, lease,
mortgage or other interest in the Common Property, created or
granted by the Association without the Developer's written consent,
shall be terminated and have no further effect on the Common
Property.
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9.4 Encumbrance as Security. Notwithstanding the provisions
of Section 9.3 above, the Association shall have the right in
accordance with this Declaration and its Articles of Incorporation
and By-Laws to (a) borrow money for the purpose of improving,
replacing, restoring or expanding the Common Property and to
mortgage or otherwise encumber the Common Property solely as
security for any such loan or loans and (b) engage in purchase
money financing with respect to personal property and equipment
purchased by the Association in connection with the performance of
its duties and obligations pursuant to this Declaration and to
secure the payment of the purchase price therefor by the
encumbrance of the personal property and equipment so purchased; it
being expressly provided, however, that any such mortgage or other
encumbrance shall (i) be subject in all respects to the terms and
provisions of this Declaration and any amendments hereto and, (ii)
be made subordinate to the rights of the City or any other
governmental agency in and to the Common Property, including but
not limited to the stormwater management tracts, established either
pursuant to this Declaration or any Plat. In no event shall the
Association be entitled or empowered to mortgage or otherwise
encumber any easements granted to it.
9.5 Use by Owners. Subj ect to any reasonable rules and
regulations adopted and promulgated by the Association pursuant to
and in accordance with the provisions of Section 9.9 of this
Declaration, and subject always to any and all easements granted by
25
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or reserved to Developer or others in this Declaration, each and
every Owner shall have the non-exclusive right, privilege and
easement to use and enjoy the Common Property for the purpose or
purposes for which the same is conveyed, designated and intended by
Developer and maintained by the Association, and such nonexclusive
right, privilege and easement shall be an appurtenance to and shall
pass with the title to each and every Lot wi thin the Subj ect
Property; subject, however, at all times to the terms, provisions,
covenants, conditions, restrictions, easements and reservations set
forth in this Declaration and/or the Plat including, without
limitation, the fOllowing: u)
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(a) the right of the Association to suspend the right~
privilege and easement of any Owner and the members of his family~
tenants, guests or other invitees to use the Common Property or an~
portion thereof designated by the Association during any time in;
which any Assessment levied by the Association against such Owne~
and his Lot remains unpaid and delinquent for a period of thirt~
(30) days or more or for a period not to exceed thirty (30) days
for any single infraction of the rules and regulations of the
Association with respect to the use of the Common Property;
provided, however, that except for a suspension of such right,
privilege and easement occasioned by the failure of an Owner to pay
any Assessment within thirty (30) days from the date that the same
is levied by the Association, any suspension of the right,
privilege and easement to use and enjoy the Common Property shall
be made by the Association, or a committee duly appointed by the
Association for that purpose, only after appropriate notice and
hearing given and held in accordance with the By-Laws of the
Association.
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(b) The right of the Association to limit the number of
guests of Owners who may use the Common Property from time to time
and to limit the use of the Common Property by persons not in
possession of a Lot at a particular time but owning a sufficient
interest therein for classification as an Owner and member of the
Association.
(c) The right of the Association to establish,
promulgate and enforce reasonable rules and regulations pertaining
and with respect to the use of the Common Property pursuant to
Subsection 12.3.7 of this Declaration.
(d) The right of the Association to charge reasonable
admission and other fees to or for the use of the Common Property,
other than for the use of easements established created or declared
pursuant to this Declaration or the Plat.
(e) The right of the Association to take such steps as
are reasonably necessary to maintain, preserve and protect the
Common Property.
9.6 Delegation of Use. Any Owner shall be entitled to and
may delegate his right, privilege and easement to use and enjoy the
Common Property to the members of his family, his tenants, guests
26
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or other invitees; subject, at all times, however, to such
reasonable rules and regulations governing such delegation as may
be established, promulgated and enforced by the Association
pursuant to Subsection 12.3.7 of this Declaration. In the event
and for so long as an Owner shall delegate such right, privilege
and easement for use and enjoyment to tenants who reside on his
Lot, the Association shall be entitled, after the adoption and
promulgation of appropriate rules and regulations with respect
thereto, to limit or restrict the right of the Owner making such
delegation to a tenant in the simultaneous exercise of such right,
privilege and easement of and for the use and enjoyment of th~)
Common Property. ~
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9.7 Waiver of Use. No Owner may exempt himself from personak3
liability for or exempt his Lot from any Assessments duly levied b~
the Association, or release the Lot owned by him from the liens,o
charges, encumbrances and other provisions of this Declaration, or?
the rules and regulations of the Association by (a) the voluntary~
waiver of the right, privilege and easement for the use and
enjoyment of the Common Property, (b) the abandonment of his Lot or
(c) by conduct which results in the Association's suspension of
such right, privilege and easement as provided in Section 9.5 of
this Declaration.
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9.8 Administration and Care. The administration, regulation,
care, maintenance, repair, restoration, replacement, preservation
and protection of the Common Property shall be the responsibility
of the Association as more particularly provided in Article XII of
this Declaration and in the Articles of Incorporation of the
Association. The Association shall also be responsible for the
care, maintenance and clean up, at least twice each calendar year,
of the fifty (50) foot buffer area bounded by Panama and Fisher
streets adjacent to the Subject Property.
9.9 Rules and Regulations. In addition to the foregoing
restrictions on the use of Common Property, the Association shall
have the right, power and authority, subject to the prior written
consent and approval of Developer, to promulgate and impose
reasonable rules and regulations governing and/or restricting the
use of Common Property and to thereafter change, modify, alter,
amend, rescind and augment any of the same; provided, however, that
no rules or regulations so promulgated shall be in conflict with
the provisions of this Declaration. Any such rules and regulations
so promulgated by the Association shall be applicable to and
binding upon all Common Property and all Owners and their
successors and assigns, as well as upon all members of their
families, their tenants, guests, and other invitees and upon all
other parties claiming by, through or under such Owners.
9.10 Community Entry Wall. The Owner of any Lot burdened by
a landscape and wall easement shown on the Plat may make any use of
the foregoing easement area that is not inconsistent with the
foregoing easement; but no attachment (including climbing vines or
other vegetation) may be made to the Entry Wall, and no permanent
wall, building, or other structure may be installed, maintained,
27
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restored, or permitted to remain on any Lot within five (5) feet of
the Entry Wall, except (i) a side wall or fence that substantially
conforms to plans and specifications approved by the Architectural
Review Board, as provided in Article XV of this Declaration, or
(ii) as may be permitted by the Association's rules and
regulations, or (iii) with the Association or the Architectural
Review Board f s advance written consent. A Lot Owner shall be
responsible for the maintenance of that portion of the Lot falling
within the interior of the Entry Wall and for the maintenance of
the Entry Wall. The Association shall be responsible for the
installation, maintenance, restoration, and removal of (i) the
Entry Wall and (ii) the landscaping located within any five (5~
foot landscape and wall easement to the exterior of the Entry Wall~
The landscape and wall easements shown on the Plat include th~
right of the Association to enter each Lot on which the Entry Wal~
is situated to install, maintain, restore, and remove the EntrY:
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9.11 Payment of Assessments Not Substitute for Taxes. The!
payment of Assessments from time to time established, made, levied,
imposed and collected by the Association pursuant to this
Declaration, including, without limi tation, those for the
maintenance of the Common Property, including those Assessments for
maintenance of the Wall, Sign and Landscape easements shall not be
deemed to be a substitute for or otherwise relieve any Owner of the
Subj ect Property from paying any other taxes, fees, charges on
assessments imposed by the City, or any other governmental
authority.
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ARTICLE X
ASSESSMENTS
10.1 Assessments for Common Expenses. In order to provide
for and assure the availability of the funds necessary to pay
Common Expenses as may be associated with and otherwise necessary
for the Association to perform its duties and obligations pursuant
to and in accordance with this Declaration and its Articles of
Incorporation and By-Laws and to otherwise carry out and accomplish
the objects and purposes for which the Association has been created
and established, each Lot and each Owner of such Lot shall, by the
acceptance of a deed or other conveyance, of title to his Lot,
whether or not it shall be expressly stated in any such deed or
other conveyance, be obligated for and be deemed to have covenanted
and agreed to pay to the Association all Assessments, whether the
initial fee, Regular Assessments, Capital Expenditure Assessments,
Special Assessments or Individual Lot Assessments, established,
levied, made and imposed by the Association pursuant to this
Declaration. All such Assessments shall be established, levied,
made, imposed, enforced and collected pursuant to the provisions of
this Declaration and the Articles of Incorporation, By-Laws and
rules and regulations of the Association.
28
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10.2 Common Expenses. The Common Expenses for which
Assessments shall be established, made, levied, imposed, enforced
and collected by the Association pursuant to this Declaration shall
be all costs and expenses incurred by the Association in the
discharge and performance of the duties and obligations of the
Association pursuant to this Declaration and the Articles of
Incorporation and By-Laws of the Association and in furtherance of
the objects and purposes for which the Association has been formed,
created and established, including, without limitation, the
following costs and expenses:
(a) Those incurred in the management and administration ,~
of the business and affairs of the Association, including, but not
limited to, the salaries of any employees of the Association and ;0
the fees or other compensation paid to consultants to t~ ~
Association, including, without limitation, architects, engineers~
accountants and attorneys. ~
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(b) Those incurred in connection with the ownership /? CJ:)
administration, management, regulation, care, maintenance, repair,~ ~
restoration, replacement, improvement, preservation, and protectionr
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(c) Reasonable reserves for repairs to and replacement
of the Common Property.
(d) Those incurred for utility services to the
Association and the Common Property, including, without limitation,
electric power for irrigation systems and street lights.
(e) Those incurred for garbage and trash collection
removal and disposal services provided to the Association and the
Common Property (but not those provided to Lots).
(f) Those incurred for Common Property landscape
maintenance and replacement, including irrigation.
(g) Those incurred as premiums on or for any insurance
obtained by the Association, including, without limitation, fire,
casualty, liability, health, medical, workman's compensation and
other insurance.
(h) All taxes paid by the Association, including,
without limitation, ad valorem real and personal property taxes on
the Common Property, if any.
(i) Those incurred in connection with any payments by
the Association for the discharge of any lien or encumbrance upon
the Common Property or any portion thereof.
(j) Those incurred by the Architectural Review Board in
the performance of its duties and obligations pursuant to this
Declaration, including, without limitation, the fees of or other
compensation paid to consultants to the Architectural Revie Board,
29
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including architects,
attorneys.
landscape
architects,
engineers
and
(k) Those incurred from time to time by any committees
of the Association which are reasonably connected to the discharge
of the duties and obligations of the Association pursuant to this
Declaration.
(1) Those incurred in connection with the acquisition
and repayment of any loans made to the Association, including the
principal of, interest on and closing costs and other charges
associated with any such loan or loans and/or purchase money
financing engaged in by the Association. Ul
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(m) Those incurred in connection with the enforcement od
the provisions of this Declaration, including the fees, costs ando
expenses of any attorney retained or employed by the Association~
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(n) Those incurred in connection
expenditures as described in Section 10.9.
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10.3 Use of Assessments. The funds received and derived from
any and all Assessments made by the Association shall be used
exclusively for the performance of the duties and obligations of
the Association pursuant to this Declaration, the payment of Common
Expenses, the operation and administration of the Association and
the promotion of the health, safety, and general welfare of the
residents of Seville Chase and for the benefit of Seville Chase
generally.
10.4 Prohibited Use of Assessments. Notwithstanding anything
to the contrary set forth in or otherwise implied from the terms
and provisions of this Declaration, generally, or Sections 10.1 and
10.2 of this Declaration, in particular, the Association shall not
have the power or authority to use, make, levy, impose, enforce and
collect and is hereby expressly prohibited from using, making,
levying, imposing, enforcing and collecting any Assessment for the
purpose, in whole or part, of financing the prosecution of or
otherwise supporting any actual or contemplated litigation,
including any and all appeals related thereto, against Developer
with respect to matters related to Seville Chase or its development
or operation. If, notwithstanding the foregoing prohibition, the
Association shall attempt to use, make, levy, impose, enforce and
collect any Assessment for such prohibited purpose or use,
Developer and any Lot or other property owned by Developer within
Seville Chase shall be and are hereby exempted from any such
Assessment or attempted Assessment.
10.5 Lien for Assessments. All Assessments established,
made, levied, and imposed by the Association pursuant to this
Declaration, together with interest, late charges, costs and
expenses, including attorneys' fees associated with the collection
thereof (whether suit be brought or not), shall be a charge, and a
30
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continuing lien upon each Lot against or with respect to which any
such Assessment is made or levied.
10.6 Personal Liability for Assessments. In addition to the
foregoing lien for such Assessments, each such Assessment, together
with interest, late charges, costs and expenses, including
attorneys' fees associated with the collection thereof, whether at
the trial or appellate level (whether suit be brought or not), as
aforesaid, shall also be the personal obligation and liability of
the Owner of the Lot against or with respect to which any such
Assessment is made, levied or imposed at the time such Assessme~
is so made, levied or imposed. Such personal liability fo%.
Assessments made, levied or imposed pursuant to this Declaratio~
prior to the sale, transfer or other conveyance of a particular Loi2
shall not, by virtue any such sale, transfer or other conveyance~
pass to such Owner's successor or successors in title unless suc~
personal liability of the Owner shall be expressly assumed in"
writing as the personal obligation of such successor or successors-
in title; provided, however, that no such assumption of personal
liability by such successor or successors in title shall relieve
any Owner otherwise personally liable for payment of Assessments
from the personal liability and obligation for the payment of the
same.
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10.7 Types of Assessments. The Association is hereby
authorized and empowered to establish, make, levy, impose, enforce
and collect (i) an initial fee, (ii) Regular Assessments, (iii)
Capital Expenditure Assessments, (iv) Special Assessments, and (v)
Individual Lot Assessments, all as described below.
The initial fee shall be collectible from the Owner of a Lot
upon the Owner's acquisition of title to the Lot from Developer.
Developer shall not be obligated to pay an initial fee as to any
Lot. The initial fee shall be THREE HUNDRED DOLLARS ($300.00) for
calendar year 1996. Subsequent to calendar year 1996, the amount
of the initial fee for calendar year 1997 and each successive
calendar year thereafter shall be established and
determined by the Board which will use its best efforts to
establish the fee no later than thirty (30) days prior to the
beginning of each calendar year.
10.8 Regular Assessments. The Association shall be and is
hereby authorized, empowered and directed to establish, levy, make,
impose, enforce and collect during each calendar year a regular
Assessment for Common Expenses to be incurred by the Association
during such calendar year (the "Regular Assessment( s)") in the
performance of its duties and obligations pursuant to this
Declaration. Such Regular Assessments shall be established, made,
levied, imposed, enforced, collected and otherwise governed by the
following provisions:
10.8.1 Rate of Regular Assessments. The amount of the
Regular Assessment for calendar year 1996 and each subsequent
calendar year thereafter shall be established and determined by the
Board which shall make a good faith effort to establish same not
31
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later than thirty (30) days prior to the beginning of each calendar
year. The Board shall establish the Regular Assessment for each
calendar year based upon a proforma operating statement or
estimated budget for such calendar year which in turn shall be
based, among other things, upon an estimate of the total Common
Expenses likely to be incurred during such calendar year, taking
into account the previous operating history of and any surplus
funds (not including reserves) held by the Association. The total
amount of the Common Expenses so estimated shall be divided by one
hundred ten (110) which is the total number of Lots the Develop~
currently plans to develop in Seville Chase. The quotient sha1~
constitute the amount of the Regular Assessment for th~
"constructed Lots" (as defined in Section 10.8.2) for such 0
calendar years. Pursuant to Section 10.8.2, the Regular Assessmen~
for unconstructed Lots shall be twenty percent (20%) of that fo~
the constructed Lots. ?
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10.8.2 Developed vs. Undeveloped Lots. Lots upon which
construction has commenced ("Constructed Lots") derive a greater
benefit from Common Property and Assessments than do the Lots which
are not being constructed upon. For this reason, the Association
in establishing the rate of Regular Assessments shall assess
unconstructed Lots for an amount less than constructed Lots. In
this regard, the Regular Assessments of unconstructed Lots shall
not exceed twenty percent (20%) of the Regular Assessments of
constructed Lots. For purposes of this provision, construction
shall be deemed to have commenced as to any Lot upon the earlier of
( i ) the commencement of construction of vertical Improvements
pursuant to the appropriate and necessary governmental approvals
and permits, and (ii) the conveyance of said Lot by the Developer
to a third party person.
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10.8.3 Notice of Regular Assessments. For each calendar
year the Association shall provide written notice to each Owner of
the amount of the Regular Assessment established, made, levied and
imposed for that calendar year and the dates upon which
installments for the same shall become due and payable.
10.8.4 Commencement of Regular Assessments. Unless
otherwise determined by the Board of Directors of the Association,
Regular Assessments shall commence as to all Lots on the first day
of the month fOllowing the first conveyance of a Lot by Developer
to any third-party individual Owner.
10.8.5 Insufficient Regular Assessments. In the event
that the Association shall determine during any calendar year that
the Regular Assessment established for such calendar year is or
will become inadequate or insufficient to meet all Common Expenses
for such calendar year, for whatever reason, the, Association shall
be entitled to immediately determine the approximate amount of the
deficiency or inadequacy of the Regular Assessment for such fiscal
year, issue a supplemental estimate of Common Expenses to all
members of the Association and within thirty (30) days thpreafter
establish, make, levy, impose, enforce and collect a supplemental
or revised Regular Assessment for such calendar year.
32
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10.8.6 Limitation on Increases. After the Association's
first full calendar year of operation the Association shall not
establish, make, levy, impose, enforce and collect any Regular
Assessment which is increased over the amount of the Regular
Assessment for the immediately preceding calendar year by more than
fifty percent (50%) without the prior approval of a majority of the
total voting power held by the members who are voting in person or
by proxy at a meeting of the Association duly called for such
purpose and of which written notice specifying the amount of a
proposed increase in the Regular Assessment over the Regula:rtn
Assessment for the prior fiscal year is sent to each member of th~
Association at least thirty (30) days in advance of such meeting.~ _
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10.8.7 Payment of Assessments. Regular Assessments ~
shall be due and payable in advance in monthly, quarterly, semi- 0
annual or annual installments as determined by the Board of :='
Directors of the Association, in its reasonable discretion. Such~
installments shall be due and payable without any further notice'
other than that notice specified in Subsection 10.8.2 above.
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10.8.8 Developer Option. Notwithstanding anything set
forth in this Declaration to the contrary, the Developer shall not
be subj ect to the initial fee. In addition, until such time as
Class B membership in the Association is converted to Class A
membership as provided in Subsection 13.6.2 of this Declaration,
Developer shall have the option of either: (a) paying the Regular
Assessments with respect to each Lot owned by Developer from time
to time, the same as any other Owner or (b) in lieu of paying the
amount of the Regular Assessments that would otherwise be due based
on the Lots owned by the Developer from time to time, paying the
difference between the actual Common Expenses incurred by the
Association for a particular calendar year over the total amount of
Regular Assessments levied by the Association against all other
Lots (i.e., Lots not owned by Developer) and Owners during such
year. Commencing at such time as the Class B membership in the
Association is converted to Class A membership, the Developer
must pay the Regular Assessment with respect to each Lot owned by
it from time to time, same as any other Owner.
10.8.9 Reserves. The Regular Assessments shall include
a reasonable amount as determined by the Board of Directors of the
Association to be collected as reserves for such other purpose or
purposes as shall be determined by the Board of Directors of the
Association, in its reasonable discretion. Notwithstanding the
foregoing, as a component of the Regular Assessments the reserves
shall not be less than ten percent (10%) of the total of the
Regular Assessments. Such portion of Regular Assessments
representing amounts collected as reserves, whether pursuant to
this Subsection 10.8.9 or otherwise, shall be deposited by the
Association in a separate interest bearing bank account to be held
in trust by the Association for the purpose or purposes for which
the same are collected and are to be segregated from and not
commingled with any other funds of the Association. The account
balance shall be turned-over to the Association at such time as the
Class B membership ceases pursuant to Section 13.6.2.
33
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10.9 Capital Expenditure Assessments. In addition to the
other Assessments for which provision is made in this Declaration,
the Association shall be and is hereby authorized and empowered to
establish, make, levy, impose, enforce and collect from time to
time capital expenditure assessments for the purpose of defraying,
in whole or in part, the cost of any construction or
reconstruction, or the unexpected repair or replacement of any
capital improvement to or upon the Common Property, or the cost of
the initial purchase or any subsequent unexpected repair or
replacement of any equipment or personal property purchased,
repaired or replaced by the Association in furtherance of the
discharge of its duties and obligations pursuant to the Declaration
(the "Capital Expenditure Assessments"); provided, however, that
any such Capital Expenditure Assessment shall have the prior
approval of greater than fifty percent (50%) of the total voting
power of the members who are voting in person or by proxy at a
meeting of the Association duly called for such purpose and of
which written notice specifying the nature of the proposed capital
expendi ture and the amount of the proposed Capital Expenditure
Assessment is sent to all members of the Association at least
thirty (30) days in advance of such meeting. All sums collected as
Capital Expenditure Assessments shall be used only for the capital
improvements or purchases for or with respect to which such Capital
Expenditure Assessment has been approved and such sums shall be
deposited by the Association in a separate interest bearing bank
account, not commingled with any other funds of the Association, to
be held in trust by the Association for such purposes.
10.10 Special Assessments. In addition to other Assessments
for which provision is made in this Declaration, the Association
shall be and hereby is authorized and empowered to establish, make,
levy, impose, enforce and collect from time to time special
assessments for any purpose directly related to the discharge of
its duties and obligations pursuant to this Declaration (the
"Special Assessments"), provided, however, that any such Special
Assessment shall have the prior approval of greater than fifty
percent (50%) of the total voting power of the members of the
Association who are voting in person or by proxy at a meeting of
the Association duly called for such purpose. Wri tten notice
specifying the nature and amount of the proposed Special Assessment
must be sent to all members of the Association at least thirty (30)
days in advance of such meeting. All sums collected as Special
Assessments shall be used only for the purpose for which such
Special Assessments are established, made, levied, imposed,
enforced and collected and shall be deposited in a separate
interest bearing bank account, not commingled with any other funds
of the Association, and held in trust by the Association for such
purpose.
10.11 Individual Lot Assessments. In addition to any other
assessments for which provisions are made in this Declaration, and
subject to the limitations put on the Association in Sc t ion 10.4,
the Association shall be and hereby is authorized and empowered to
establish, make, levy, impose, enforce and collect against Iild from
34
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a particular Lot and the Owner of such Lot an assessment (the
Individual Lot Assessment") for:
(a) costs and expenses incurred by the Association in
bringing a particular Owner or his particular Lot into compliance
with the provisions of this Declaration, including any action taken
or cost or expense incurred by the Association to cure and
eliminate any violation of or noncompliance with the provisions of
this Declaration, fOllowing the failure of such Owner, wi thin
fourteen (14) days fOllowing written notice from the Association of
the nature of the violation of or non-compliance with this
Declaration, to cure or remedy such violation or noncompliance; ~
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(b) costs and expenses, including reasonable attorneys~
fees, whether or not suit be brought, incurred by the Association~
in the enforcement of the provisions of this Declaration against an
particular Lot or the Owner of such Lot; g .~
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( c) costs and expenses incurred by the Association in~ c::>
furnishing or providing labor, services and materials which benefit CJ
a particular Lot or the Owner of a particular Lot provided that
such labor, services or materials can be accepted or rejected by
such particular Owner in advance of the Association's furnishing or
providing the same such that upon such Owner's acceptance of any
such labor, services or materials such Owner shall be deemed to
have agreed that the costs and expenses associated therewith shall
be made, levied, imposed, collected and enforced as an Individual
Lot Assessment against such particular Owner and his particular
Lot; and
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(d) reasonable overhead expenses of the Association
associated with any Individual Lot Assessment, established, made,
levied, imposed, collected and enforced pursuant to this Section
10.11.
10.12 Quorum for Action Authorized Under Subsection 10.8.6
and Sections 10.9 and 10.10. The quorum required at any meeting of
the Association for any action authorized pursuant to Subsection
10.8.6 and Sections 10.9 and 10.10 of this Declaration shall be as
follows: At the first meeting called for the purpose of taking any
such action the presence at such meeting, in person or by proxy, of
members of the Association entitled to cast a majority of the total
voting power of the Association shall constitute a quorum. If the
required quorum is not forthcoming at such first meeting, a
subsequent meeting may be called for the same purpose, subject to
the notice requirements set forth in said Subsection 10.8.6 and
Sections 10.9 and 10.10, and the required quorum at any such
subsequent meeting shall be one-half (1/2) of the required quorum
at the first meeting; provided that no such subsequent meeting
shall be held more than sixty (60) days following the preceding
meeting.
10.13 Uniformity of Assessments. Except for Individual Lot
Assessments for which provision is made in Section 10.11 of this
Declaration, and subject to Section 10.8.2 and the Developer's
35
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rights under Section 10.8.8, all Assessments shall be uniformly
fixed at an equal amount per Lot and shall be collected on a
uniform basis from the Owner of each Lot.
10.14 Exempt Property. Any property, other than a Lot, which
is owned by or dedicated to and accepted by any governmental body
or agency, shall be exempt from any Assessments. All property
otherwise exempted from taxation by the laws of the State of
Florida or the United States of America shall also be exempt from
all Assessments; but only upon the same terms, subject to the same
condi tions and only to the extent of any such exemption fr~
taxation. z
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10.15 Subordination of Assessment Lien. The lien of and fo~
all Assessments provided for in Article X shall be and is hereb~
made junior, inferior and subordinate in all respects to the lien
of any bona fide first mortgage held by an Institutional Lender~
upon a particular Lot recorded prior to the recording by the
Association of a claim of lien for delinquent Assessments in the
Public Records of the County. The sale, transfer or conveyance of
ti tIe to a particular Lot shall not affect the effectiveness,
viabili ty or priority of any Assessment lien or the personal
liability of the Owner of such Lot for the payment of any
Assessment; provided, however, that the sale, transfer or
conveyance of title to a particular Lot pursuant to judicial
proceedings in foreclosure of, or pursuant to deed in lieu of
foreclosure related to, a bona fide first mortgage on such Lot held
by an Institutional Lender shall extinguish the lien of such
Assessments other than those evidenced by the recording of a claim
of lien prior to the recording of the mortgage (but not the
personal liability of the Owner of such Lot) as to payments on
account thereof which became due and payable prior to such
foreclosure sale, transfer or conveyance. However, no such
foreclosure sale, transfer or conveyance shall relieve such Lot or
the Owner of that Lot from the personal obligation or liability for
the payment of any Assessments accruing or becoming due and payable
subsequent to such sale, transfer or conveyance from the lien
thereof.
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10.16 Certificate of Assessments Due. The Association shall,
upon the request of an Owner or any other interested party, furnish
a certificate executed by its President, Vice President, Secretary,
Treasurer or any other officer thereunto duly authorized, setting
forth whether Assessments payable with respect to a particular Lot
have been paid, the amount of the delinquency, if any, and the
amounts of any outstanding and unpaid interest, late charges,
penalties, costs of collection, including attorney's fees and court
costs, if any, associated with any such delinquent Assessments. A
properly executed certificate of the Association as to the status
of Assessments, as aforesaid, shall be binding upon the Association
as conclusive evidence of the status of the payment of any
Assessment therein stated to have been paid or to be delinquent as
of the date of the issuance of such certificate. The Association
36
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shall be entitled to charge and collect a reasonable fee for and as
a condition precedent to the issuance of any such certificate not
to exceed Twenty-Five and No/lOO-Dollars ($25.00).
10.17 No Defenses or Offsets. All Assessments shall be
payable in full and at the times due. No defenses or offsets
against the payment of such amount shall be permitted for any
reason whatsoever, including, without limitation, any claim by an
Owner that (i) the Association is not properly exercising its
rights and powers or performing or discharging its duties and
obligations as provided in this Declaration or its By-Laws; (ii) an
Owner and his family has made or elected to make no use of the~
Common Property; (iii) the Owner and his family have otherwise:J:
waived or elected to waive their membership in the Association; or3
(iv) the Association has suspended the right, privilege and I
easement of such Owner and his family to use the Common Property as ~
provided in Section 9.5 of this Declaration. g
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10.18 Waiver of Homestead and Other Exemptions. Each Owner,
by the acceptance of a deed or other conveyance to his Lot, shall,
to the extent permitted by applicable law, be deemed to have
waived, to the extent of any lien for Assessments at any time
imposed upon such Lot pursuant to this Declaration, the benefit of
any homestead or similar exemption laws of the State of Florida or
the United States of America now in effect or hereafter enacted.
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ARTICLE X
NON-PAYMENT OF ASSESSMENTS
11.1 Delinquency. Any Assessment established, made, levied
or imposed by the Association pursuant to and in accordance with
this Declaration which is not paid on its due date shall be deemed
to be delinquent on that date. With reasonable promptness after
any Assessment becomes delinquent, the Association shall provide
written notice of such delinquency to the Owner of the Lot with
respect to which such delinquent Assessment has been made, levied
and imposed. If the delinquent Assessment is not paid within ten
(10) days fOllowing the delivery of such notice of delinquency, the
Association, in its discretion, shall be entitled to immediately
impose a reasonable late charge associated with the administration
of such delinquent Assessment. Addi tionally, any such unpaid
Assessment shall bear interest from the date of delinquency at the
highest rate then allowed by the laws of the State of Florida.
11.2 Notice of Lien. The Association shall, at any time
following the expiration of a period of ten (10) days following the
aforesaid delivery of the notice of delinquency, be entitled to
cause a Claim of Lien for such delinquent Assessments to be filed
among the Public Records of the County. Any such Claim of Lien
shall, among other things, state and identify the legal description
of the Lot against or with respect to which the lien is claimed,
the name of the record Owner of such Lot as best known to the
Association as determined from its records, the amount of the lien
claimed, including the amount of interest accrued and the rate of
accrual, late charges, and costs and expenses associated with
37
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collection, including attorneys' fees, if any, accrued to the date
of the execution of such Claim of Lien. Such Claim of Lien shall
be executed by the President, Vice President, Secretary, Treasurer
or other officer of the Association thereunto duly authorized by
the Association or by the attorney for the Association. Within
seven (7) days of the recording of the same, a copy of such Claim
of Lien shall be sent to the Owner of the Lot against or with
respect to which such lien is claimed.
11.3 Foreclosure of Assessment Lien. The Association shall,
at any time subsequent to the filing of the aforesaid Claim of Lien
among the Public Records of the County against or with respect t~
a particular Lot, be entitled to bring an action in the Circui t::. .,~
Court of the Eighteenth Judicial Circuit in and for the County t~
foreclose the lien of the Association for delinquent Assessment~
evidence by such Claim of Lien in the same manner as mortgage'"'
foreclosure action shall be conducted as ordered by the Court or ing
accordance with the provisions of Section 45.031 Florida Statutes,'~
as amended or replaced from time to time. The Association shall,-
have the right and power to bid at any foreclosure sale with
respect to any lien foreclosed by it using its judgment for the
delinquent Assessment, Association funds, and funds otherwise
borrowed by the Association for that purpose, and if the successful
bidder at such foreclosure sale, to acquire, own, hold, lease,
sell, mortgage and convey any Lot upon or with respect to which it
has foreclosed its lien for delinquent Assessments.
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11.4 Collection from Owner. The Association shall, at any
time fOllowing the delivery of the aforesaid notice of delinquency,
also be entitled to bring an action at law for the recovery and
collection of such delinquent Assessment in the Circuit Court of
the Eighteenth Judicial Circuit in and for the County against the
Owner of the Lot personally obligated for the payment of such
delinquent Assessment. Each Owner of a Lot, by the acceptance of
a deed or other conveyance of the Lot owned by him shall be deemed
to have agreed and consented to the jurisdiction of said Court over
the person of such Owner for the purposes of any action at law for
the recovery and collection of any delinquent Assessment for the
payment of which he is personally obligated.
11.5 Judgment Amount. Whether in an action at equity to
foreclose the lien of the Association for delinquent Assessments or
in an action at law for the recovery and collection of any such
delinquent Assessment from the Owner of the Lot personally
obligated for the payments of the same, the Association shall be
entitled to recover in such proceedings the amount of such
delinquent Assessment, together with late charges and interest
thereon, if any, and such costs and expenses, including reasonable
attorneys' fees incurred either at the trial level or on appeal,
associated with the enforcement, recovery and collection thereof as
may be awarded by the Court.
11.6 Remedies Cumulative. The remedies herein provided for
the collection and enforcement of Assessments and the foreclosure
of the lien therefor shall be cumulative and not alternative; it
38
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being expressly provided that any suits brought for the collection
of assessments against the Owner personally obligated and liable
for the payment of the same and for the foreclosure of the lien
herein provided against the Lot involved may be brought
simultaneously as separate counts in the same action.
11.7 Satisfaction of Lien. Upon payment or other
satisfaction of (a) all delinquent Assessments specified in the
Claim of Lien, (b) interest, late charges, costs and expenses of
collection, including attorneys' fees, as aforesaid, which have ~~
accrued to the date of such payment or satisfaction, and (c) all
other assessments which have become due and payable with respect ~ .'~
the Lot with respect to which a Claim of Lien has been recorded~ _
the President, Vice President, Secretary, Treasurer or othe~
officer of the Association thereunto duly authorized, or the-
attorney for the Association, shall cause an appropriate release o~
such Claim of Lien to be filed and recorded among the Publico
Records of the County upon the payment by Owner of the Lot with'~
respect to which such Claim of Lien was recorded of a reasonable'
fee to be determined by the Association, but not to exceed FIFTY
AND NO/IOO DOLLARS ($50.00) to cover the costs associated with the
administration of the satisfaction of such lien including, without
limitation, the cost of preparing and recording such release.
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ARTICLE XII
ASSOCIATION: PURPOSES, DUTIES AND POWERS
12.1 Objects and Purposes and Function. The Association has
been created and established in order to advance the objects and
purposes of this Declaration. The Association shall have exclusive
jurisdiction over, and the sole responsibility for, the
establishment, levy, imposition, enforcement and collection of all
Assessments for which provision is made in this Declaration, the
payment of all Common Expenses, as defined in this Declaration, and
the promotion and advancement of the health, safety and general
welfare of the members of the Association; all as more particularly
provided in this Declaration and in the Articles of Incorporation,
By-Laws and Rules and Regulations of the Association.
12.2 Duties and Powers, Generally. In addition to those
duties and powers conferred by law and those specified and
enumerated in its Articles of Incorporation and By-Laws, the
Association shall also have such duties and powers as are,
respecti vely, imposed and conferred upon it pursuant to this
Declaration, including, without limitation, such duties and powers
as may be reasonably imposed from, necessary for and incidental to
the accomplishment of the objects and purposes for which the
Association has been created and established.
12.3 Duties of Association. The Association, acting by and
through its Board of Directors, shall, in addition to those general
and specific duties, responsibilities and obligations imposed upon
it by law and those specified in its Articles of Incorporation and
By-Laws, have the following specific duties, responsibilities and
obligations:
39
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12.3.1 Payment of Common Expenses. To pay all Common
Expenses and any other expenses for which Assessments are made
associated with the management and administration of the
business and affairs of the Association and all other Common
Expenses and any other expenses for which Assessments are made
for which provision is made in this Declaration.
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12.3.3 Other Services. To provide and perform such 0
other services and tasks, the responsibility for which has been..,.,
expressly or impliedly delegated to the Association pursuant tol
this Declaration.
12.3.2 Levy and Collection of Assessments. To
establish, make, levy, impose, enforce and collect all
Assessments for which provision is made in this Declaration or
which shall otherwise be necessary to provide and assure the
availability of such funds as may be reasonably necessary to
pay all Common Expenses or otherwise conduct the business and
affairs of the Association.
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12.3.4 Insurance. Subj ect to the Board I s sole
discretion in determining the types of insurance coverages to
purchase and the amounts thereof, to provide adequate insurance
protection on and for the Common Property and, consistent with the
irrespective duties, responsibilities and liabilities, provide
adequate insurance protection on and for the Association itself and
its officers and directors, as well as for the members of the
Architectural Review Board established pursuant to this
Declaration.
12.3.5 Preserve and Enhance Beauty of Seville Chase. To
preserve, protect, maintain and enhance the appearance and natural
beauty of the Common Property and Seville Chase generally.
12.3.6 Promotion of Health, Safety and Welfare. To
advance, promote, enhance and protect the health, safety and
general welfare of the members of the Association, the residents of
Seville Chase generally; provided, however, that the Association
shall be and hereby is specifically prohibited from engaging in any
political activity or any other activity whereby its status as a
corporation not-for-profit or its exemption from Federal or State
income taxation, if any, shall be forfeited or jeopardized.
12.3.7 Establish and Enforce Rules and Regulations. To
make, establish, promulgate and publish, and to enforce such rules
and regulations for the protection and governing the use of Common
Property as the Board of Directors of the Association deems to be
in the best interest of the Association and its members.
12.3.8 Other Activities. To engage in any and all
other activities permitted to be engaged in by a corporation
not-for-profit under the laws of the State of Florida as may be
necessary or appropriate for the achievement of the objects and
purposes for which the Association has been created, formed and
established.
40
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12.3.9 Operate Without Profit. To operate without
profit for the sole and exclusive benefit of its members and
Seville Chase.
12.4 Powers of Association. The Association, acting by and
through its Board of Directors, shall, in addition to those general
and specific powers conferred upon it by law and those powers ,"
specified in its Articles of Incorporation and By-Laws, have the -~ ~o
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12.4.1 Own and Deal with Common Property. Except as ma~ ....
be limited by the terms of this Declaration and the Articles o~
Incorporation and By-Laws of the Association, to acquire, own,r1
hold, control, administer, manage, operate, regulate, care for,g '~
maintain, repair, replace, restore, preserve, protect, buy, sell,. CJ ~~
lease, transfer, convey, encumber or otherwise deal in or with real ~ ....:-:)
or personal property, (or any interest therein, including
easements) which is, or upon its acquisition by the Association
shall thereupon become, Common Property as defined in this
Declaration.
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12.4.2 Levy and Collect Assessments. To establish,
make, levy, impose, enforce and collection all Assessments and
impose, foreclose and otherwise enforce all liens for Assessments
for which provision is made in this Declaration in accordance with
the terms and provisions of this Declaration and the Articles of
Incorporation and By-Laws of the Association.
12.4.3 Establish Reserves. To create, establish,
maintain, and administer such capital expenditure, reserves and
other reserve funds or accounts as shall, in the discretion of the
Board of Directors, be reasonably necessary to provide and assure
the availability of funds necessary for the care, maintenance,
repair, replacement, restoration, preservation and protection of
all Common Property, including all easements and facilities, and
for such other purposes as the Board of Directors of the
Association, in its reasonable discretion shall be deemed necessary
or appropriate.
12.4.4 Sue and Be Sued.
defend any suits brought against it.
To sue and be sued and to
12.4.5 Borrow Money. Subject to the limitations
specified in Section 12.5 of this Declaration and in the Articles
of Incorporation of the Association, to borrow such money as may
reasonably be required to discharge and perform the duties,
responsibilities and obligations imposed upon the Association
pursuant to this Declaration and the Articles of Incorporation of
the Association.
12.4.6 Employ and Contract. To employ such persons or
to contract with such independent contractors or managing agents as
shall be reasonably required in order for the Association to carry
out, perform and discharge all or any part of its duties,
obligations and responsibilities pursuant to this Declaration and
41
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the Articles of Incorporation of the Association; provided,
however, that any such employment contract or contract with any
independent contractor or managing agent for a term of more than
one (1) year shall, by its express terms, be terminable (i) for
cause at any time upon not more than thirty (30) days written
notice by the Association and (ii) without cause at any time after
one (1) year upon not more than sixty (60) days written notice by
either party; and, provided further, that any such contract shall ~~
otherwise be subj ect to the provisions of Section 12.5 of th~,.,
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12.4.8 Provide Public or Quasi Public Services. Subj ectg ':.:J
to the rights of the City under any applicable franchise agreement,. c~O
to itself provide equipment, facilities and personnel, or tO~~::J i-:i
contract with an independent contractor or independent contractors, r --1
for such public or quasi public services as may be deemed by the
Association to be reasonably necessary or desirable for the common
heal th, safety and general welfare of the residents of Seville
Chase generally, including, without limitation, internal security
and protection services, garbage and trash pickup and disposal
services, cable television services and street lighting services.
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12.4.9 Enforce Declaration. To take such steps as may
be necessary to enforce the provisions of this Declaration,
including, without limitation the employment of counsel and the
institution and prosecution of litigation to enforce the provisions
of this Declaration including, without limitation, such litigation
as may be necessary to collect assessments and foreclose liens for
which provisions are made in this Declaration.
12.4.10 Surface Water or Stormwater Management System.
The Association shall be responsible for the maintenance, operation
and repair of the Surface Water or Stormwater Management System
including, but not limited to, the roadway and rear-yard
under-drains. Maintenance of the Surface' Water or Stormwater
Management System(s) including, but not limited to, the roadway and
rear-yard under-drains, shall mean the exercise of practices which
allow the systems to provide drainage, water storage, conveyance or
other surface water or stormwater management capabilities as
permitted by the St. Johns River Water Management District. The
Association shall be responsible for such maintenance and
operation. Any repair or reconstruction of the Surface Water or
Stormwater Management System including, but not limited to, the
roadway and rear-yard under-drains, shall be as permitted, or if
modified as approved by the St. Johns River Water Management
District and the City of Winter Springs.
12.5 Limitations and Restrictions on Power of Association.
In addition to such other restrictions or limitations on the powers
of the Association as may be imposed by law, elsewhere in this
Declaration or in the Articles of Incorporation or By-Laws of the
Association, and without limiting the generality of any thereof,
the Association shall be prohibited from taking any of the
42
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following actions without the prior approval of a majority of the
total voting power of the Association.
( a) Contracts for a Term in Excess of One Year. The
entry into employment contract or other contracts for the delivery
of services or materials to the Association having a term in excess
of one (1) year, except in the case of prepaid insurance, casualty
or liability contracts or policies for not more than three (3)
years duration; provided that the applicable contract or policy ~-,J cae
provides for and permits early cancellation by the insured. u> ..- 0-
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(b) Pledge of Assessment Rights. The borrowing of any~ ~-
funds secured by a pledge, assignment or encumbrance of the right 0
and duty of the Association to exercise its power to establish, ~
make levy, impose, enforce and collect any Assessments for which 0 ;~
provision is made in this Declaration whereby as a result of such ? CD
pledge, assignment or encumbrance such right and power of ~ CO
assessment may be exercised by a party other than the Association CO
or whereby the Association shall become obligated to establish,
levy, enforce and collect any Assessment or Assessments in a
particular amount or within a particular time so as to effectively
divert from the Association and its Board of Directors the right,
duty and discretion to establish, make, levy, impose, enforce and
collect Assessments in such amounts and within such time periods as
the Board of Directors of the Association, in its discretion, shall
deem to be necessary and reasonable. It is expressly provided,
however, that the foregoing limitation and restriction upon the
pledge, assignment or encumbrance of the assessment rights herein
contained shall not preclude the Association from pledging or
making an assignment of or otherwise encumbering any Assessment
which is then payable to or which will thereafter, in the ordinary
course of the Association's business, become payable to the
Association provided that any such assignment, pledge or
encumbrance, though then presently effective, shall allow and
permit any such Assessments to continue to be paid to and used by
the Association as set forth in this Declaration unless and until
the Association shall default on the repayment of the debt which is
secured by such pledge, assignment or encumbrance.
(c) Sale or Transfer of Real Property. The sale,
transfer or other disposition, whether or not for consideration, of
any real property owned by the Association as Common Property;
provided, however, in no event shall the Association be entitled or
empowered to sell, conveyor transfer any real property
constituting Common Property transferred and conveyed by Developer
to the Association pursuant to the provisions of Section 9.1 of
this Declaration without first receiving the prior written consent
of Developer and the City. Further, upon the request of Developer
and approval of the City, the Association shall re-convey to
Developer any Common Property previously covered by Developer to
the Association, in the event such original conveyance was made in
error or in the event Developer modifies the development plan for
Seville Chase in such manner as to require the incorporation of the
affected Common Property into Residential Property use. Any such
reconveyance to Developer shall automatically cause all of the
43
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easements created under Article XIV or the Plat to be automatically
void, released and vacated without the requirement of any written
release from any easement holder.
Cd) Payment of Compensation to Officers or Directors.
The payment of compensation to the elected directors or to officers
of the Association for services performed in the conduct of their
duties is prohibited; provided, however, that nothing herein
contained shall preclude the Association from reimbursing any su~
elected director or officer for reasonable expenses actualtv
incurred and paid by any such elected director or officer in the ~~
conduct of the business and affairs of the Association; a~
provided, further, that nothing herein contained shall preclude t~
employment by the Association and payment of compensation to 2;
manager or executive director of the Association who shall not be
an elected director or officer of the Association. ~
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ARTICLE XIII
ASSOCIATION, MEMBERSHIP AND VOTING RIGHTS
13.1 Membership. Every Owner shall automatically and
mandatorily be a member of the Association upon becoming an owner.
Additionally, Developer shall automatically and mandatorily be a
member of the Association. Membership may not be refused, waived
or surrendered, but a member's voting rights and use and enjoyment
of the Common Property may be regulated or suspended as provided in
this Declaration and the Articles of Incorporation, By-Laws and
rules and regulations of the Association.
13.2 Transfer of Membership. Membership in the Association
shall be appurtenant to and may not be separated from the ownership
interest of an Owner in the Lot owned by such Owner. The
membership of an Owner in the Association shall not be transferred,
pledged or alienated in any way, except that such membership shall
automatically be transferred and assigned to a transferee upon the
transfer of the ownership interest required for membership in the
Association. The Association shall have the right to record any
such automatic transfer upon the books and records of the
Association without any further action or consent by the
transferring Owner or any transferee Owner. Any attempt to make a
prohibited transfer of membership, however, shall be void and of no
force and effect and will not be reflected upon the books and
records of the Association.
13.3 Members' Rights. The rights of every member of the
Association shall be subj ect to and governed by the terms and
provisions not only of this Declaration, but, in addition, shall at
all times be subject to the terms and provisions of the Articles of
Incorporation, ByLaws and Rules and Regulations of the Association.
13.4 Intentionally Blank.
13.5 Voting Rights. An Owner's right to vote shall vest
immediately upon such Owner's qualification for membership as
provided in this Declaration and the Articles of Incorporation and
44
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Bylaws of the Association. All voting rights of a member shall be
exercised in accordance with and subject to the restrictions and
limitations provided in this Declaration and in the Articles of
Incorporation and By-Laws of the Association.
13.6
Association
follows:
Classes of Voting Membership: Number of Votes. The
shall have two (2) classes of voting membership as
13.6.1 Class A. Class A members shall be all Owners of~
Lots, with the exception of Developer, until Class B membership has~
been converted to Class A membership, as provided in Subsection~
13.6.2 of this Declaration and in the Articles of Incorporation ofo
the Association, and after such conversion all Owners of Lots ~
classified as Residential Property shall be Class A members. Class~
A members shall be entitled to one (1) vote for each Lot in which~
they hold the ownership interest required for membership; provided, .,
however, that in the event that (i) two (2) or more contiguous Lots'
or (ii) one (1) Lot and a portion contiguous thereto of another Lot
are owned in common by the same Owner and combined, developed and
improved by such Owner as a single unified residential homesite,
the Owner of any such combination of Lots shall only be entitled to
one (1) vote for each such combination of Lots so owned. When more
that one person or entity holds the ownership interest required for
membership in the Association, each such person or entity shall be
a member, but the single vote of such members with respect to the
Lot owned by them shall be exercised as those holding a majority
interest in the Lot determine. However, in no event shall more
than one (1) Class A vote be cast with respect to any Lot which is
owned by more than one person or entity. The Association may, but
shall not be obligated to, recognize the vote or written assent of
any co-owner of a Lot, but the Association shall recognize the vote
or written assent of a particular co-owner who or which is
designated by a majority interest of all co-owners entitled to cast
the vote attributable to the Lot owned by such co-owners, provided
that such written designation shall be delivered to the Association
not less than twenty-four (24) hours prior to the taking of the
particular vote in question.
13.6.2 Class B. The Class B member shall be the
Developer. The Class B member shall be entitled to three (3) votes
for each Lot in which Developer hOlds the ownership interest
required for membership; provided, however, that Class B membership
shall cease and be converted to Class A membership when the total
votes outstanding in Class A membership exceeds the total votes
outstanding in Class B membership, at which time Class B membership
shall be terminated and the Class B member shall automatically be
entitled and required to vote as a Class A member. Notwithstanding
the foregoing, Seville Chase may be developed in phases, with the
recordation of more than one (1) plat affecting the Subj ect
Property. Developer intends to develop one hundred ten (110) Lots
in the Subj ect Property, and effective as of the date of this
Declaration, Developer shall have three (3) Class B votes for each
of such one hundred ten (110) Lots, regardless of whether any or
all of such Lots have been included in a recorded plat of all or a
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portion of the Subject Property at the time this Declaration is
recorded.
13.7 Intentionally Blank.
13.8 Approval by Members. Unless elsewhere otherwise
specifically provided in this Declaration or the Articles of
Incorporation or By-Laws of the Association, any provision of this (~
Declaration of the Articles of Incorporation and By-Laws of t~~
Association which requires the vote or approval of a majority o~; \~
other specified fraction or percentage of the total voting power o! ~;.
the Association shall be deemed satisfied by either, both or a 0
combination of the following:' ~
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(a) The vote in person or by proxy of the majority o~ ._~
other specified fraction or percentage of the total voting power of~ L~ ~,
the Association at a meeting duly called and noticed pursuant tol _ ,1',
the provisions of the By-Laws of the Association dealing with
annual or special meetings of the members of the Association.
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(b) Written consents signed by the majority or other
specified fraction or percentage of the total voting power of
the Association.
ARTICLE XIV
EASEMENTS
14.1 Easements Generally. Developer, on behalf of itself and
for the benefit, where so stated, of the City, the Association, all
Owners, and other specified parties, and also for the benefit of
all real property from time to time included within the Subject
Property, hereby creates, declares and reserves the following
easements upon those affected portions of the Subj ect Property
hereinafter specified:
14.1.1 Utility Easements. There are hereby created,
declared, granted and reserved for the benefit of Developer, the
City, the Association, all Owners and any public or private
providers of utility services to the Subject Property and their
respective successors and assigns a non-exclusive easement for
utility purposes over, under, within and upon the streets and roads
and all utility easements and easement areas shown on the Plat or
otherwise reserved, declared or created pursuant to this
Declaration for the purposes of constructing, installing,
inspecting, maintaining, repairing and replacing from time to time
any and all utility lines, systems and facilities from time to time
located therein or thereon. The utili ties contemplated to be
served by such utility easements shall include, without limitation,
those providing electric power, natural gas, telephone, potable
water, sanitary sewer, cable television, and other underground
electronic services.
14.1.2 Drainage Easements. There is hereby created,
declared and reserved for the benefit of Developer, the City, the
Association and all Owners, a non-exclusive easement for storm
46
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water collection, retention, detention and drainage, under, over,
upon and within all drainage easements, ponds and tracts shown on
the Plat or otherwise reserved, declared or created pursuant to
this Declaration, together with an easement and license in favor of
the Developer, the City and the Association only to enter upon such ~
areas for the purposes of constructing, installing, inspecting, '(g~
maintaining, repairing and replacing any and all storm wat~ ,'~) ~~
drainage systems, improvements and facilities from time to ti~ _,-
located therein or thereon. Addi tionally, Developer, for th~
benefit of itself, the City, the Association and all Owners herebj2
reserves easements over any and all other portions of the Subjec~
Property as may be reasonably required from time to time in orderg .~
to provide storm water drainage to all or any portions of the....,.., C:::> ~:;~
Subj ect Property; provided, however, that any such addi tionall ':~
drainage easements shall not unreasonably interfere with the use
and enjoyment by any Owner of his Lot or his Improvements from time
to time placed, located, constructed, erected or installed thereon.
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The Developer intends to construct berms and drainage
swales within portions of the Drainage Easements (D.E.) identified
on the Plat for the purpose of managing and containing the flow of
excess surface water, if any. Each Owner, including builders,
shall be responsible for the maintenance, operation and repair of
the berms and drainage swales on their respective Lots. Likewise,
the Association shall be responsible for the maintenance, operation
and repair of the berms and drainage swales that are not located on
a Lot (e.g. within a Conservation Area). Maintenance, operation
and repair shall mean the exercise of practices, such as mowing and
erosion repair, which allow the berms and drainage swales to
provide drainage, water storage, conveyance or other stormwater
management capabilities as permitted by the St. Johns River Water
Management District. Filling, excavation, construction of fences
or otherwise obstructing the surface water flow in the swales is
prohibited. No alteration of the berms and drainage swales shall
be authorized and any damage to any berms and drainage swales,
whether caused by natural or human-induced phenomena, shall be
repaired and the berms and drainage swales returned to their former
condi tion as soon as possible by the party (i. e. Owner or the
Association) having responsibility for the maintenance of the
damaged berms and drainage swales after first receiving approval
from the st. Johns River Water Management District and the City.
14.1.3 Intentionally Blank.
14.1.4 Wall, Landscape and Sign Easements. There is
hereby created, declared, granted and reserved for the benefit of
Developer and the Association an easement over and upon all wall,
landscape and sign easement areas shown on the Plat together with
the easement and license to enter upon such Wall, Landscape and
Sign Easement areas for the purposes of erecting, constructing,
installing, inspecting, maintaining, repairing, and replacing any
and all signs, screening walls or fences, and the installation and
irrigation of any landscaping therein, which may be required by the
City and/or deemed to be necessary or desirable by Developer or the
Association.
47
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14.1.5 Landscape and Buffer Easements. There is hereby
created, declared, granted and reserved for the benefit of
Developer and the Association an easement for buffer and
landscaping purposes over and upon all landscape easement areas,
entry-ways, medians, and landscape buffers shown on the Plat, if ~JJ
any, or hereafter declared by Developer, together with the easementp ._
and license to enter upon such areas for the purposes o~ ~~
installing, maintaining, inspecting, repairing and replacing any~ .~
and all landscaping, including trees, grasses, shrubs, bushes, 0
ground covers and other plant materials and irrigation systems of~
any kind, whether the same shall be required by the City and/or 0
deemed necessary or desirable by Developer or the Association. 0
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14.1.6 Conservation Easements. It is hereby established
that the Conservation Easements shown on the Plat are permanent,
private Conservation Easements in perpetuity, as defined in Section
704.06, Florida Statutes (1993), for the benefit of Developer, the
perpetual use of the public, the St. Johns River Water Management
District (the "District") and the Association and same shall be of
the nature and character and to the extent hereinafter set forth.
Developer fully warrants title to the land subjected to the
Conservation Easements and, as to the District, will warrant and
defend the same against the lawful claims of all persons
whomsoever. The purpose of the Conservation Easements is to assure
that the lands subj ected to the Conservation Easements will be
retained forever in their existing natural conditions and to
prevent any use that will impair or interfere with the
environmental value of said lands.
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(a) Any activity on or use of the Conservation
Easements inconsistent with the purpose of the Conservation
Easements is prohibited. Without limiting the generality of the
foregoing, the following activities and uses are expressly
prohibited: (i) constructing or placing buildings, roads, signs,
billboards or other advertising, utilities or other structures on
or above the ground, (ii) dumping or placing soil or other
substance or material as landfill or dumping or placing of trash,
waste or unsightly or offensive materials, (iii) removing or
destroying trees, shrubs, or other vegetation, (iv) excavating,
dredging or removing loam, peat, gravel, soil rock or other
material substances in such a manner as to affect the surface, (v)
surface use, except for purposes that permit the land or water area
to remain predominantly in its natural condition, (vi) activities
detrimental to drainage, flood control, water conservation, erosion
control, soil conservation, or fish and wildlife habitat
preservation, (vii) acts or uses detrimental to such retention of
land or water areas, (viii) acts or uses detrimental to the
preservation of the structural integrity or physical appearance of
sites or properties of historical, architectural, archaeological,
or cultural significance.
(b) Developer reserves unto itself, and its
successors and assigns, all rights accruing from its ownership of
the lands subjected to the Conservation Easements, inrluding the
48
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right to engage in or permit or invite others to engage in all uses
of the said lands, that are not expressly prohibited herein and are
not inconsistent with the purpose of the Conservation Easements.
(c) Developer, subject to the reasonable approval by
the City, by a recorded instrument may extend the benefit of the
Conservation Easements established by this Subsection 14.1.6 to (i),
any adjoining lands, or (ii) any homeowners, condominium$?
cooperative or similar association now or hereafter formed wi ffi _;_
respect to any adjoining lands, or (iii) any association, nonprof~
corporation, trust, or other organization that maintains simila~
preservation areas, or (i v) any combination of the foregoing CJ
Developer, however, may not extend any benefit to the genera::p
public, including any right of entry or access. Such easements ma~
be terminated only by (i) the taking by a governmental entity ot-
the Conservation Easements or the Conservation Areas by
condemnation or eminent domain, (ii) an entry of final judgment by
a court of competent jurisdiction that, because of change of
circumstances, the purpose of such easements no longer reasonably
can be accomplished, or (iii) the District.
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(d) The Conservation Easements grant no right of
access or entry to the area of the Conservation Easements to the
general public or to any person except the Developer, the
Association, the District and the City, provided such access by the
Ci ty is reasonable. Without limitation, no right of access or
entry is granted any Owner, except the Owner on whose Lot any of
the Conservation Easements is situated, who has a reasonable right
of entry to the part of the Conservation Easements situated on such
Lot for any purpose not inconsistent with the maintenance of the
Conservation Easements for its intended purposes. Such right of
entry is non-exclusive as to the Developer and the Association but
is exclusive as to any other person.
(e) To accomplish the purposes stated herein,
Grantor conveys the following rights to the City and the District:
(i) to enter upon and inspect the lands subjected to the
Conservation Easements in a reasonable manner and at reasonable
times to determine if Developer or its successors and assigns are
complying with the covenants and prohibitions contained in this
Paragraph 14.1.6, (ii) to proceed at law or in equity to enforce
the provisions of this Paragraph 14.1.6 and the covenants set forth
herein, and require the restoration of areas or features of the
lands subjected to the Conservation Easements that may be damaged
by any activity inconsistent with the Conservation Easements.
(f) The District and the City may enforce the terms
of this Paragraph 14.1.6 at its discretion, but if Developer
breaches any term of this Paragraph 14.1.6 and the District and/or
the City does not exercise its rights hereunder, the District's or
the City's forbearance shall not be construed to be a waiver by the
District or the City of such term, or of any subsequent breach of
the same, or any other term hereof, or of any of the District's or
the City's rights hereunder. No delay or omission by the District
or the City in the exercise of any right or remedy upon any breach
49
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by Developer shall impair such right or remedy or
a waiver. The District and/or the City shall not
Developer, or to any other person or entity,
provisions of this Paragraph 14.1.6.
be construed as
be obligated to
to enforce the
(g) As to the District and the City, Developer will
assume all liability for any injury or damage to the person ~
property of third parties which may occur on the lands subjected ~
the Conservation Easements. Neither Developer, nor any person o~
entity claiming by or through Developer, shall hold the Distric~
and the City liable for any damage or injury to person or personam
property which may occur on the lands subjected to Conservatio~
Easements.
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(h) Nothing contained herein shall be construed to
enti tIe the District or the City to bring any action against
Developer for any injury to or change in said lands resulting from
natural causes beyond Developer's control, including, without
limitation, fire, flood, storm and earth movement, or from any
necessary action taken by Developer under emergency conditions to
prevent, abate or mitigate significant inj ury to the aforesaid
lands resulting from such causes.
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14.1.7 Intentionally Blank.
14.1.8 Construction and Marketing Easements. There is
hereby created, declared, granted and reserved for the benefit of
Developer together with the right to grant, assign and transfer the
same to Developer's agents and representatives as well as to
builders or building contractors approved by Developer for the
construction of residences within Seville Chase, an easement for
construction activities upon Residential Property and an easement
for marketing activities and signs on Residential Property and for
the maintenance on Residential Property from time to time of model
centers in which and from which Developer and its authorized agents
and representatives and approved builders and building contractors
may engage in marketing and information activities on a temporary
basis during the period of the development of and construction
within Seville Chase, provided, however, that such activities shall
be conducted from within buildings constructed as single family
residential dwellings which are temporarily used for such
acti vi ties and which are thereafter to be used and occupied as
single family residential dwellings. The location of such model
centers within Seville Chase may be changed from time to time by
Developer, in its sole and absolute discretion.
14.1.9 Association Easement. There is hereby created,
declared and granted to the Association, such easements over and
upon all or any portion of the Subj ect Property, as may be
reasonably necessary to permit the Association to carry out and
discharge its duties, obligations and responsibilities under and
pursuant to this Declaration and the Articles of Incorporation,
By-Laws and rules and regulations of the Association. Such
Association Easement shall be in addition to the Drainage Easements
50
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hereinabove granted to the Association pursuant to Subsection
14.1.2 of this Declaration.
14.1.10 Common Roads and Streets. There are hereby
created, declared, granted and reserved for the benefit of
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Developer, the City, the Association, the Owners and their ~~
invitees, licensees and guests, a non-exclusive easement f~ 0J q""T1
vehicular and pedestrian ingress and egress through the Subjecjt. '.>-G
Property over the Common Streets and Roads, and to Developer an~ ~ ~
the Association for the purpose of constructing, installing ~ _~
inspecting, maintaining, preparing and replacing, from time ten I~
time, any and all roadway facilities and landscaping from time tog 0 d)'
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time located or to be located thereon. It is expressly provided"""T1 :~
that the rights-of-way over the Common Streets and Roads are not I \..0 ,"\
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hereby dedicated to the public and specifically declared, created
and reserved as private street rights-of-way and easements for the
benefi t only of the Subj ect Property and only to and for the
benefi t of those persons or enti ties referenced above.
Notwithstanding the foregoing, Developer reserves unto itself and
to the Association, the right to dedicate the Common Streets and
Roads to the City, and according to terms acceptable to them. If
the Developer elects to dedicate the Common Streets and Roads to
the City after same have been Common Property owned or controlled
by the Association, the Association shall join in to any such
dedication, without consideration, requested by the Developer. The
Association may install guard houses and/or limited access gates or
facilities at the entrance to the Subject Property, in the sole
discretion of Developer or the Association, and the costs of
repair, maintenance and replacement of such shall be Common
Expenses.
14.2 Future Easements. There is hereby reserved to Developer
and its successors and assigns, together with the right to grant to
and transfer the same, the right, power and privilege to, at any
time hereafter, grant to itself, the Association, the City, or any
other parties such other further and additional easements as may be
reasonably necessary or desirable, in the sole opinion and within
the sole discretion of Developer, subject to the reasonable
approval of the City, for the future orderly development of Seville
Chase in accordance with the objects and purposes set forth in this
Declaration. Any such easement(s) shall be recorded in the Public
Records of the County. It is expressly provided, however, that no
such further or additional easements shall be granted or created
over and upon Residential Property pursuant to the provisions of
this Section 14.2 if any such easement shall unreasonably interfere
with an owner's plans to use or develop his Lot as a single family
residential home site. The easements contemplated by this Section
14.2 may include, without limitation, such easements as may be
required for utility, drainage, road right-of-way or other purposes
reasonably related to the orderly development of Seville Chase in
accordance with the objects and purposes specified in this
Declaration. Such further or additional easements may be hereafter
created, granted, or reserved by Developer without the necessity
for the consent or joinder of the Owner of the particular portion
51
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of the Subject Property over which any such further or additional
easement is granted or required.
ARTICLE XV
ARCHITECTURAL AND LANDSCAPE CONTROL
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15.1 Reservation of Architectural and Landscape Control. In ,_ 0"-
order to ensure that the development of Seville Chase will procee~ ;~ '~~
pursuant to a uniform plan of development and construction and i~ .~
accordance wi th consistent architectural, ecological, environmentalC3
and aesthetic standards which are designed and calculated to bring~
about the achievement and creation of, and to thereafter maintain, 0
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preserve and protect, Seville Chase as a pleasant, attractive and? c;::J ;'
harmonious physical environment, Developer shall have and hereby ~ ~ c
reserves exclusively unto itself, for the duration hereinafter .- --1
specified, the right, privilege, power and authority to review,
approve and control the design, placement, construction, erection
and installation of any and all buildings, structures and other
Improvements of any kind, nature or description, including
landscaping, upon all Residential Property and all Common Property.
Such right and control of Developer shall be exercised in the
manner hereinafter provided in this Article XV.
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15.2 Architectural Review Board Established. The Association
at all times has as a standing committee an Architectural Review
Board, consisting of at least three (3) persons. Architectural
Review Board members are appointed by, and serve at the pleasure
of, the Board. The Board from time to time may designate
alternative members, to serve in the absence of any regular member.
Architectural Review Board members need not be Owners, Directors of
the Association or Association members. No Architectural Review
Board member is entitled to compensation for services performed,
but the Board may employ independent professional advisors to the
Architectural Review Board and allow reasonable compensation to
such advisors from Association funds. Any Architectural Review
Board action may be taken by a simple majority of its members, with
or without a formal meeting or joint deliberation, so long as each
member is informed in advance of the action proposed.
Notwithstanding anything contained herein to the contrary, until
such time as the Developer has divested itself of title to all of
the Lots, it shall have the right to choose all three (3)
Architectural Review Board members.
15.3 Architectural Review Board Authority. The Architectural
Review Board has full authority to regulate the exterior appearance
of the Lots to: (i) assure harmony of external design and location
in relation to surrounding buildings and topography; and (ii) to
protect and conserve the value and desirability of the Subj ect
Property as a first-class residential community. The power to
regulate includes the power to prohibit those exterior uses,
structures, conditions, or activities inconsistent with the
provisions of this Declaration or otherwise contrary to the best
interests of all Owners in maintaining the value and rl Lrability
of the Subject Property as a first-class residentia ommunity.
The Architectural Review Board's authority includ,? lilY matter
52
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affecting the exterior appearance of Lots and requiring approval by
the Association under Article VII or the Design Standards Manual.
15.4 Archi tectural Review Board Approval. No building,
improvement, structure, addition, landscaping, attachment,
condition, excavation, alteration, or change (including any color
change) may be made, installed, maintained, restored, or permitted
to remain on or to the exterior of any Lot, unless made, installed,
maintained, or restored, as the case may be, completely in
compliance with plans and specifications reviewed and approved by
the Architectural Review Board in advance. Notwithstanding the~
foregoing, the Committee's approval is not required for restoration ~
of any previously approved building, structure, or other item when ~
the restoration is identical in all respects to the original work, ~
as approved. f'"'
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15.5 Objective Standards. In addition to any other express
standard that may be provided by this Declaration, all actions by
the Architectural Review Board must: (i) assure harmony of external
design, materials, and location in relation to surrounding
buildings and topography wi thin the Subj ect Property; and (ii)
protect and conserve the value and desirability of the Subject
Property as a first-class residential community; and (iii) not
conflict with the express provisions of this Declaration, the
Articles of Incorporation, and the By-Laws; and (iv) otherwise be
in the best interests of all Owners in maintaining the value and
desirability of the Subject Property as a residential community.
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15.6 Rules and Regulations. The Architectural Review Board
from time to time, may adopt and amend reasonable, uniform rules
and regulations as to all matters within the scope of its
authority, including procedural matters, and may adopt and amend a
Design Standards Manual at any time and from time to time, with any
such adoption or amendment to be wi thin the sole and absolute
discretion of the Architectural Review Board, so long as such rules
and regulations and any amendments to the Design Standards Manual
are: (i) consistent with the provisions of this Declaration, the
Articles of Incorporation and the By-Laws of the Association; and
(ii) if the Board has not constituted itself as the Architectural
Review Board, approved by the Board before taking effect. Rules
and regulations adopted pursuant to this Section 15.6 have the same
force and effect as the Association's other rules and regulations
and are enforced by the Board in the name of the Association.
15.7 Subjective Judgment. In addition to complying with the
objective standards of this Declaration, any applicable Design
Standards Manual, and any applicable rules and regulations,
Developer specifically intends the Architectural Review Board
members to exercise an informed, subjective aesthetic judgment as
to any matters within the Architectural Review Board's authority
that is conclusive and binding upon any person affected, absent bad
fai th, mistake, or deliberate. intentional discrimination that
cannot be justified on any rational basis. Without limitation, and
in recognition of the fact that each Lot is unique, no
Architectural Review Board action with respect to any particular
53
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Lot necessarily is of any precedential value with respect to any
other Lot. Specifically, the fact that the Architectural Review
Board may have approved or denied a particular installation,
condition, activity, or item with respect to any particular Lot
does not, by itself, constitute grounds for requiring such approval
or denial with respect to any other Lot. Each application for
Archi tectural Review Board action must be evaluated on its own
meri ts, with the Architectural Review Board exercising the broadest W
discretionary judgment that is consistent with the requirements ~ --
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15.8 Review. The Architectural Review Board from time t~
time may appoint one or more persons to make preliminary review o~
any applications and report such applications with such person'~ ~
advisory recommendations for Architectural Review Board action. ~ CO
After the Developer gives up control of the Architectural Review~ uO
Board, the Architectural Review Board's procedures for review and ~
enforcement of the provisions of this Article in all events and at
all times must provide any affected person with reasonable advance
notice and a reasonable opportunity to be heard in person and
through appropriate representatives of such person's choosing in a
reasonably impartial manner.
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15.9 Applications. Any applications for Architectural Review
Board approval must be accompanied by three (3) sets of plans and
specifications, together with such renderings, samples, models, and
other information as the Architectural Review Board reasonably may
require. Any application submitted other than by Owner must attach
the Owner's written consent to the approval requested. The
application must include the Owner's street address. Any
application for installation of any building or other permanent
structure must include a landscaping plan and detailed plot plan of
any permanent improvements and structures. If requested, the
Architectural Review Board may require the preliminary staking of
such improvements and structures according to such plan for
Architectural Review Board inspection. Any application for the
initial installation of any residential dwelling must also include
a grading and drainage plan and tree survey. Any costs of filing
and processing an application pursuant to this Article are at the
expense of the applicant, and the Association also may impose a
reasonable, uniform application fee to defray the Architectural
Review Board's costs.
15.10 Procedure. Within fourteen (14) days after receiving
an application, the Architectural Review Board either must approve
the application as submitted or notify the applicant of (i) the
Architectural Review Board's decision to deny the application, or
(ii) any additional plans, specifications, drawings, or other items
that the Architectural Review Board will require to act upon the
application, or (iii) both of the foregoing. The Architectural
Review Board's failure to so notify the applicant operates as an
approval of the application as submitted. Upon receiving the
foregoing notice, the applicant may request a hearing before the
Architectural Review Board, at which the applicant, personally and
through representatives of the applicant's choosing, is enti t 1 ,ell to
54
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a reasonable opportunity to be heard in a reasonably impartial
manner, after reasonable advance notice. No particular formality
is required for any of the Architectural Review Board's
proceedings, including any hearing, nor is any record required.
Unless the applicant agrees otherwise, the Architectural Review
Board must approve or disapprove any application within fourteen
(14) days after receipt.
15.11 Approval. The Architectural Review Board's approval is
deemed given under any of the fOllowing circumstances: ( i) the
Architectural Review Board fails to deny any application within
fourteen (14) days after receipt, unless the applicant agrees to a
longer period of time; or (ii) the Architectural Review Board fail~
to notify the applicant of its intent to deny an application, or~
that further information is required, within fourteen (14) days X ~
after receipt of an application, as provided in Section 15.10. I~
all other events, the Architectural Review Board's approval must b~
in writing and endorsed upon two ( 2 ) sets of the plans andg
specifications, one of which must be returned to the applicant and"
one retained in the Association's permanent records for a period of;::J
two (2) years. Upon completion of the approved work, the applicant
and any architect, engineer, contractor, or other reasonable
professional must certify to the Association in writing that the
work has been completed substantially according to the approved
plans and specifications; and no Statute of Limitations begins to
run in favor of any Owner or other applicant with respect to any
substantial non-conformity to the approved plans and specifications
until such certificate is filed.
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15.12 Changes. Any change to any plans and specifications
previously approved by the Architectural Review Board affecting
exterior elements of the Improvements also must be approved by the
Architectural Review Board as provided in this Article XV, except
that the Architectural Review Board will expedite, to the extent
practical, any such application that is made while construction is
in progress. The Architectural Review Board in no event is
required to act upon any such application in less than ten (10)
days, however.
15.13 Notice of Action. No suit, proceeding or other action
to enforce the provisions of this Article XV may be commenced or
continued, nor may any of the provisions of this Article XV be
enforced, against any person who acquires any interest in a Lot
without actual knowledge that a building or other structure
(including walls and fencing) was installed, maintained, or
restored on the Lot, as the case may be, in violation of the
requirements of this Article unless such suit, action, or other
proceeding is commenced within one (1) year after the City has
issued a Certificate of Occupancy, or its equivalent. No such
action may be commenced, continued, or otherwise enforced against
any purchaser or creditor who acquires an interest in, or a lien
upon, any Lot for value, other than pre-existing indebtedness, and
without actual knowledge of any such violation, if such purchaser
or creditor obtained a statement under oath from the applicable
Owner that no violation existed on such Lot at the lie value was
55
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given or paid. Upon payment of any reasonable uniform charge that
the Association from time to time may impose to defray its costs,
the Association within ten (10) days after request will issue an
appropriate certificate of compliance or non-compliance, as the
case may be, with the provisions of this Article XV, that is
binding and conclusive as to the information it sets forth, upon
both the Association and any person without actual knowledge to the
contrary.
15.14 Developer Action. Notwithstanding any provision of
this Article XV, no Architectural Review Board approval is required
for any residential dwelling or any of its appurtenanc~
constructed by Developer on any Lot as part of the development QI
Seville Chase, so long as it otherwise conforms to the applicabl~
requirements of this Declaration, including the Design Standardrr
Manual. The foregoing exemption is for the exclusive benefit oh
Developer and may not be extended by Developer to any building 00
any Owner other than Developer. ~
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15.15 Exculpation for Approval or Disapproval of Plans. The
Developer, the Association, the Architectural Review Board, and any
and all officers, directors, employees, agents and members of
either the Developer, the Association, or the Architectural Review
Board shall not, either jointly or severally, be liable or
accountable in damages or otherwise to any Owner or other person or
party whomsoever or whatsoever by reason, or on account of, any
decision, approval or disapproval of any plans, specifications or
other materials required to be submitted for review and approval
pursuant to the provisions of this Article XV, or for any mistake
in judgment, negligence, misfeasance or nonfeasance related to or
in connection with any such decision, approval or disapproval.
Each person who shall submit plans, specifications or other
materials to the Architectural Review Board for consent or approval
pursuant to the provisions of this Article XV, by the submission
thereof, and each Owner by acquiring title to any Lot or any
interest therein, shall be deemed to have waived the right to, and
shall not, bring any action, proceeding or suit against Developer,
the Architectural Review Board, the Association or any individual
member, officer, director, employee or agent of any of them for the
purpose of recovering damages or for any other relief on account of
any such decision, approval, disapproval, mistake in judgment,
negligence, misfeasance or nonfeasance. Plans, specifications and
other materials submitted to and approved by the Architectural
Review Board, or by Developer or the Board of Directors, as the
case may be, are being reviewed and approved based solely on their
compliance with the provisions of this Declaration and as to
aesthetic considerations. No person or entity shall have the right
to rely on approval or disapproval of plans and specifications or
any other materials as a representation of any sort regarding
compliance with sound construction or building standards, any
applicable Governmental Regulations, including, without limitation,
any applicable building or zoning laws, ordinances, rules or
regulations. By the approval of any such plans, specifications or
materials, neither Developer, the Architectural Review Board, the
Association, nor any individual member, officer, direct ,employee
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or agent of any of them, shall assume or incur any liability or
responsibility whatsoever for any violation of Governmental
Regulations or any defect in design or construction.
Notwithstanding the foregoing, the areas of exculpation addressed
above are not intended to include a release of the affected persons
from undertaking their responsibilities in a good faith, diligent
fashion.
ARTICLE XVI
AMENDMENT
16.1 Amendment by Developer. Subject to the provisions of
Section 16.5 of this Declaration, until Developer no longer holds
an ownership interest in any Lot or other lands within the Subject
Property, the terms and provisions of and the covenant~
conditions, restrictions, easements and reservations set forth ~
this Declaration may be changed, amended or modified from time ~
time by Developer in its sole, but reasonable discretion, a~
without requiring the joinder or consent of any person or par~
whomsoever, including without limitation, the City, the Associatio~
or any Owner or Owners.
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16.2 Amendment by Association. Subject to the provisions of
Section 16.5 of this Declaration, the terms and provisions of and
the covenants, conditions, restrictions, easements and reservations
set forth in this Declaration may be changed, amended, or modified
at any time and from time to time by the Association upon the
affirmative written consent or the vote of not less than seventy
five percent (75%) of the total voting power of the members of the
Association; provided, however, that until Developer no longer
hOlds an ownership interest in any Lot or other lands within the
Subject Property, no such change, amendment or modification by the
Association shall be effective without Developer's express written
joinder and consent on the amending instrument.
16.3 Manifestation of Requisite Consent. In the case of any
change, amendment or modification of this Declaration by the
Association which requires the affirmative written consent or vote
of members of the Association as hereinabove provided in Section
16.2, the acquisition of the requisite written consent or vote of
members shall be manifested on the face of the amending instrument
in a certificate duly executed and sworn to before a Notary Public
by the President, or Vice President, and the Secretary of the
Association affirmatively stating that such requisite affirmative
written consent or vote has, in fact, been acquired or obtained
prior to the recordation of such amending instrument among the
Public Records of the County. Such certificate shall be and
constitute conclusive evidence of the satisfaction of the provision
of Section 16.2 of this Declaration with respect to the change,
amendment or modification of this Declaration effected by the
amending instrument of which such certificate is made a part.
16.4 Effectiveness of Amendments. All changes, amendments or
modifications of this Declaration shall be manifested in a written
amending instrument duly executed by Developer or the Association,
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or both, as may from time to time be required pursuant to the
provisions of this Article XVI, and shall be duly recorded among
the Public Records of the County. Such change, amendment or
modification of this Declaration shall be effective as of the date
of such recordation or such later date as may be specified in the
amending instrument itself.
16.5 Limitations on Amendments. Notwithstanding anything to
the contrary set forth in this Declaration, the rights of Developer
and/or the Association to change, amend or modify the terms and
provisions of and the covenants, conditions, restrictions,
easements and reservations set forth in this Declaration shall at
all times be subject to and limited and restricted as follows, ~
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(a) This Declaration shall at all times
the rules, laws, ordinances and codes of the City.
receive copies of all recorded easements.
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(b) To the extent that particular rights or interests
are expressly conferred herein upon or granted to the City, the
particular terms and provisions of this Declaration pursuant to
which any such rights and interests are conferred upon and granted
to the City shall not be changed, amended or modified without the
prior written consent and joinder of the City.
(c) This Declaration may not be changed, amended or
modified in such manner as to terminate or eliminate any easements
granted or reserved herein to the Developer or the City,
respectively, without the prior written approval of the Developer
or the City, as the case may be, and any attempt to do so shall be
void and or no force and effect.
(d) Any amendments to the Declaration which alter the
surface water or stormwater management system, beyond maintenance
in its original condition, including the water management portions
of the common areas, must have the prior approval of the st. Johns
River Water Management District and the City.
(e) This Declaration may not be changed, amended or
modified in any fashion which will result in or facilitate the
dissolution of the Association or the abandonment or termination of
the obligation of the Association to maintain the Common Property.
(f) This Declaration may not be changed, amended or
modified in any fashion which would affect the surface water
management system for the Subject Property, or its maintenance by
the Association, without the prior written consent and approval of
the st. Johns River Water Management District and the City.
(g) This Declaration may not be changed, amended or
modified in such fashion as to change, amend, modify, eliminate or
delete the provisions of this Section 16.5 of this Declaration
without the prior written consent and joinder of Developer, in any
case, and to the extent of any proposed change, amendment or
58
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modification which shall affect the rights of the City or the St.
Johns Water Management District hereunder, the same shall require
the written consent and joinder of the City or the St. Johns River
Water Management District, as the case may be.
ARTICLE XVII
DURATION
The terms and provisions of and covenants, conditions,
easements, restrictions and reservations set forth in this
Declaration shall continue to be binding upon the Developer and the
Association and upon each Owner and all Owners from time to time Q~
any portion of the Subject Property and their respective successoDE'
and assigns and all other persons, parties or legal entities havin~
or claiming any right, title or interest in the Subject Propertyo
by, through or under any of them, for a period of sixty (60) year~
from the date this Declaration is recorded among the Public Record~
of the County, after which time this Declaration and the covenants,?
conditions, restrictions and reservations set forth herein, as th~
same shall have been changed, amended or modified from time to'
time, shall be automatically extended for successive periods of ten
( 10) years unless an instrument of termination executed by the
Association upon the affirmative written consent or the vote of not
less than ninety-five percent (95%) of the total voting power of
the members of the Association (certified as provided in Section
16.3 of this Declaration), with the consent and joinder of the
City, shall be recorded among the Public Records of the County at
least one (1) year prior to the end of the initial term or any
subsequent extension term of this Declaration. Each of the
easements herein declared to be created, granted or reserved shall
continue to be binding upon Developer and the Association and upon
each Owner and all Owners from time to time of any portion of the
Subject Property and their respective successors and assigns and
all persons, parties and legal entities claiming by, through or
under any of them in perpetuity, unless any such easement shall
have been changed, amended, modified, released or terminated by the
execution and recordation among the Public Records of the County of
a written instrument or Court order, as the case may be, which, in
either case, is otherwise legally sufficient in all respects to
effect any such change, amendment, modification, release or
termination of any such easement.
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ARTICLE XVIII
ENFORCEMENT
18.1 Parties Entitled to Enforce. Subject to the provisions
of Section 18.2 of this Declaration, the terms, provisions,
covenants, conditions, restrictions, easements and reservations set
forth in this Declaration, as changed, amended or modified from
time to time, shall be enforceable by Developer, the Association,
and/or any Owner whose membership privileges in the Association
have not been suspended as contemplated in Section 13.1.
Additionally, to the extent that particular rights or interests are
expressly conferred upon or granted to the City pursuant to this
Declaration, the particular terms and provisions of this
59
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Declaration conferring or granting such rights or interests to the
City shall also be enforceable by the City. Those so entitled to
enforce the provisions of this Declaration shall have the right to
bring proceedings at law or in equity against the party or parties
violating or attempting to violate any of said covenants,
conditions, restrictions, easements or reservations or against the
party or parties defaulting or attempting to default in his, its or
their obligations hereunder in order to (a) enj oin any such
violation or attempted violation or any such default or attempted
default, (b) cause any such violation or attempted violation or
default or attempted default to be cured, remedied or corrected,
(c) recover damages resulting from or occasioned by or on accoun~)
of any such violation or attempted violation or default orm
attempted default and (d) recover costs and expenses, including~
attorneys' and paralegals' fees and costs, incurred in connectionS
wi th the enforcement of this Declaration. The St. Johns River ~
Water Management District and the City shall have the right tOn
enforce, by a proceeding at law or in equity, the provisions 0
contained in this Declaration which relate to the maintenance, -n
operation and repair of the surface water or stormwater management r
system.
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18.2 Limitations on Enforcement Rights. Notwithstanding the
foregoing provisions of Section 18.1 of this Declaration, the right
to enforce the provisions of this Declaration shall be subject to
and limited by the requirement that the Association shall have the
exclusive right to collect Assessments and enforce Assessment
liens. To the extent that specific rights, interests or
reservations are conferred upon or granted or reserved to specific
parties pursuant to this Declaration only those parties upon or to
whom or which such rights, interests or reservations are conferred,
granted or reserved shall have the right to enforce the provisions
of this Declaration relating to such rights, interests or
reservations.
18.3 Enforcement by Owners. Only Developer and the
Association shall have the right to enforce the provisions of
Article XV of this Declaration with respect to architectural and
landscape control. It is expressly provided, however, that if both
Developer and the Association fail, refuse or are unable to
commence enforcement of such provisions within thirty (30) days
fOllowing written demand to do so from any Owner, any Owner who
makes such demand and who otherwise has standing to do so, shall
have the right to enforce the provisions of said Article XV;
provided, however, that such right of enforcement shall not include
the right to seek judicial review or discretionary decisions made
either by Developer, the Association or the Architectural Review
Board where the discretion to make such decision is expressly
conferred pursuant to this Declaration.
18.4 Attorneys' Fees. In the event that legal or equitable
proceedings are instituted or brought to enforce any of the
provisions set forth in this Declaration, as changed, amended and
modified from time to time, or to enjoin any violation or attempted
violation or default or attempted default of the same, the
60
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prevailing party in such proceeding shall be entitled to recover,
from the losing party such reasonable attorneys' and paralegals'
fees and court costs as may be awarded by the court rendering
judgment in such proceedings, whether incurred at the trial or
appellate level.
18.5 No Waiver. Failure by Developer, the Association, any
Owner or the City (only to the extent any right of enforcement is
otherwise granted to or conferred upon the City pursuant to this
Declaration), to enforce any term, provision, covenant, condition,
restriction, easement or reservation herein contained in any
particuLar instance or on any particular occasion shall not be
deemed a waiver of the right to do so upon any subsequent violation
or attempted violation or default or attempted default of the same
or any other term, provision, covenant, condition, restriction,
easement or reservation contained herein.
18.6 Nuisance. The result of every act or omission, where
any term or provision of, or covenant, condition, restriction,
easement, or reservation set forth in this Declaration is violated,
breached or in default in whole or in part, is hereby declared to
be and constitute a nuisance, and every remedy allowed by law or
equity against a nuisance, either public or private, shall be
applicable against every such result, and may be exercised by
Developer, the Association or any Owner.
18.7 Cumulative Rights and Remedies. In connection with the
enforcement of this Declaration, all rights, remedies of Developer,
the Association, the Owners and the City (to the extent provided
herein), shall be cumulative, and no single right or remedy shall
be exclusive of any other.
18.8 Effect of Invalidation. If in the course of an attempt
to enforce this Declaration, any particular provision of this
Declaration is held to be invalid by any court, the invalidity of
such provision shall not affect the validity of the remaining
provisions hereof.
18.9 Exculpation. Developer, the Association, the
Architectural Review Board, and the individual members, officers,
directors, employees or agents of any of them, shall not, jointly
or severally, be liable or accountable in damages or otherwise to
any Owner or other party affected by this Declaration, or to anyone
submitting plans or other materials for any required consent or
approval hereunder, by reason or on account of any decision,
approval or disapproval required to be made, given or obtained
pursuant to the provisions of this Declaration, or for any mistake
in judgment, negligence or nonfeasance related to or in connection
with any such decision, approval or disapproval. Each person who
shall submit plans or other materials for consent or approval
pursuant to this Declaration, by the submission thereof, and each
Owner of any Lot, by acquiring title thereto or an interest
therein, shall be deemed to have agreed that he or it shall not be
entitled to bring and shall not bring any action, proceeding or
suit against Developer, the Association, the Architectural Review
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Board, or any individual member or members or officer or officers,
director or directors, employee or employees or agent or agents of
any of them for the purpose of recovering any such damages or other
relief on account of any such decision, approval or disapproval.
ARTICLE XIX
MISCELLANEOUS PROVISIONS
19.1 Constructi ve Notice and Acceptance. Every person,
corporation, partnership, limited partnership, trust, association
or other legal entity, who or which shall hereafter have, claim,
own or acquire any right, title, interest or estate in or to anYG;
portion of the Subject Property, whether or not such interest is~
reflected upon the Public Records of the County shall be~
conclusively deemed to have consented and agreed to each and every~
term, provisions, covenant, condition, restriction, easement and ~
reservation contained or by reference incorporated in this 2
Declaration (including those matters set forth in the Design
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Standards Manual), whether or not any reference to this Declaration I
is contained in the document or instrument pursuant to which such
person, corporation, partnership, limited partnership, trust,
association or other legal entity shall have acquired such right,
title, interest or estate in the Subject Property or any portion
thereof.
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19.2 Personal Covenants. To the extent that the acceptance
or conveyance of a Lot creates a personal covenant between the
Owner of such Lot and Developer, the Association or any other Owner
or Owners, such personal covenant shall terminate and be of no
further force or effect from or after the date when a person or
enti ty ceases to be an Owner except to the extent that this
Declaration may provide otherwise with respect to the personal
obligation of such Owner for the payment of Assessments for which
provision is expressly made in this Declaration.
19.3 Governing Law. This Declaration and the interpretation
and enforcement of the same shall be governed by and construed in
accordance with the laws of the State of Florida and the Code of
Ordinances, City of Winter Springs, Florida.
19.4 Construction. The provisions of this Declaration shall
be liberally construed so as to effectuate and carry out the
objects and purposes specified in Article II of this Declaration.
19.5 Article and Section Headings. Article and Section
headings contained in the Declaration are for convenience and
reference only and in no way define, describe, extend or limit the
intent, scope or content of the particular Articles or Sections in
which they are contained or to which they refer and, accordingly,
the same shall not be considered or referred to in resolving
questions of interpretation or construction.
19.6 Singular Includes Plural, Etc. Whenever the context of
this Declaration reasonably requires the same, the singular shall
62
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include the plural and the plural the singular and the masculine
shall include the feminine and the neuter.
19.7 Time of Essence. Time is of the essence of this
Declaration and in the performance of all covenants, conditions and
restrictions set forth herein. Whenever a date or the expiration
of any time period specified herein shall fall on a Saturday,
Sunday or federal banking holiday, the date shall be extended to
the next succeeding business day which is not a Saturday, Sunday or
federal banking holiday.
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19.8 Notice. Any notice required or permitted to be gi~n--
pursuant to the provisions of this Declaration shall be in writi~ ~
and shall be delivered as follows: z ~
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(a) Notice to an Owner shall be deemed to have been
properly delivered when delivered to the Owner's Lot, whether sa~ ~
Owner personally receives said notice or not, or placed in the ~
first class United States mail, postage prepaid, to the most rece~ ~
address furnished by such Owner in writing to the Association for CO
the purpose of giving notice, or if no such address shall have been
furnished, then to the street address of such Owner's Lot. Any
notice so deposited in the mail shall be deemed delivered forty
eight (48) hours after such deposit. In the case of co-owners any
such notice may be delivered or sent to anyone of the co-owners on
behalf of all co-owners and shall be deemed to be and constitute
delivery on all such co-owners.
(b) Notice to
been properly delivered
the Association or to
business.
the Association shall be deemed to have
upon receipt at the address furnished by
the address of its principal place of
( c) Notice to Developer shall be deemed to have been
properly delivered upon receipt at the Developer's address which is
Suite 890, 201 S. Orange Avenue, Orlando, Florida 32801.
(d) The affidavit of an officer or authorized agent of
the Association declaring under penalty of perjury that a notice
has been properly mailed to any Owner or Owners to the address or
addresses shown on the records of the Association, shall be deemed
conclusive proof of such mailing, whether or not such notices are
actually received.
19.9 Development and Construction by Developer. Nothing set
forth in this Declaration shall be deemed, either expressly or
impliedly, to limit the right of Developer to change, alter or
amend its development plan or plans for the Subject Property, or to
construct such improvements as Developer deems advisable prior to
the completion of the development of all of the Subject Property.
Developer reserves the right to alter its development and
construction plans and designs as it deems appropriate from time to
time; subject, however, to all applicable Governmental Regulations,
including, without limitation, those of the City.
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19.10 Assignment of Developer's Rights and Interests. The
rights and interests of Developer under this Declaration may be
transferred and assigned by Developer to any successor or
successors to all or part of Developer's interest in the Subject
Property by an express transfer, conveyance or assignment
incorporated into any recorded deed or other instrument, as the
case may be, transferring, conveying or assigning such rights and
interests to such successor.
IN WITNESS WHEREOF Developer has caused this Declaration
Covenants, Conditions and Restrictions to be made and executed
of the day and year first above written.
19.11 No Warranties. This Decl aration is made for the
objects and purposes set forth in Article II of this Declaration
and Developer makes no warranties or representations express or
implied as to the binding effect or enforceability of all or any
portion of the terms and provisions of or the covenantsuJ
conditions, restrictions, easements and reservations set forth i~
this Declaration, or as to the compliance of any of the same wit~
public laws, ordinances and regulations applicable thereto. S
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Witnesses:
SEVILLE
LTD. , a
partnership
CHASE DEVELOPMENT,
Florida limited
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Prl' nted Name .,L--.y" J i . c, '~-J/-; /1 ~;-K:.o
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By: ~~ 7
GEORGE D. LIVINGSTON, JR.
General Partner
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STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this
day of August, 1996, by GEORGE D. LIVINGSTON, JR., General Partner
of SEVILLE CHASE DEVELOPMENT, LTD., a Florida limited partnership.
KENNETH F. OSWALD
~Jotary Public, State of Florida
;! Comm. Expires Sept. 26, 1998
Comrn. :\io. CC406087
(Print, type or
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stamp commissioned name of Notary Public)
Personally Known
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Type of Identification Produced
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JOINDER AND CONSENT TO AMENDMENT TO
DECLARATION OF COVENANTS, CONDITIONS, EASEMENTS AND RESTRICTIONS
OF SEVILLE CHASE
THE UNDERSIGNED hereby certifies that it is the hOlder of an
Indenture of Mortgage on the property described herein, recorded
in O.R. Book 3020, Page 1441, Public Records of Seminole County,
Florida, and the undersigned hereby agrees that the lien of its
said Mortgage, shall be subordinate to the provisions of the
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Declaration of Covenants, Conditions, Easements and Restriction~
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Signed, sealed, and delivered
in the presence of:
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(Corporate Seal) \';,~.\~. '<I ,'::/:: _
STATE OF FLORIDA
COUNTY OF e!J~4J5: B,ll,Y
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The foregoing instrument was acknowledged before me this &~
day of A~gust, 1996, by ~~e~~,~~~ and
Dlane Stewart ,as )/,~~ PP-.e.s/ctNf- and
Secrpta r\f , respectively, of PEOPLES FIRST
COMMUNITY BANK~
(Print, type or stamp commissioned
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Personally Known
OR Produced
Type of Identification Produced