HomeMy WebLinkAboutThe Reserve at Tuscawilla
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MARYANNE MORSE
CLERK OF CIRCUIT COURT
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__---------..---------[SPACE ABOVE THIS LINE FOR RECORDI~'G DATA1------------------F c:>
Robert M. fbppell. Esq.
l"faguire,-~oorh:Mi 8: Wells. P.A.
Two So~h Orange Avenue
Orla~o. Florida 3~1
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THI S SUPPLEMENTAL DECLARATION AND AMENDMENT OF COVENANTS ~
CONDITIONS AND RESTRICTIONS ~OR THE RESE~V1AT TUsc~thiS
"Supplemental Declaration") is made this ~{p~ )day of . ,
1995, by RICHLAND TUSCAWILLA, LTD., a Florida limited partnership,
whose address is One Urban Center, 4830 West Kennedy Boulevard,
Suite 740, Tampa, Florida 33609, hereinafter referred to as the
"Developer".
g~~ITALS
A. Developer is the developer of a certain tract of land
located in Seminole County, Florida, commonly known and referred to
as The Reserve a.t Tuscawi U. a I Phases I and I I (the "Reserve
Development" ) .
B. Developer has heretofc>re placed of Public Record that
certain Declaration of Covenants, Conditions. Easements and
Restrictions for The Reserve C1.t TuscaT"illa, dated October 20, 1994,
and recorded in Official Records Book 2853, Page 1055, of the
Public" Records of Seminole County, Florida, hereinafter referred to
as the "Declaration."
c. The Declaration encumbers and benefits that portion of
the Reserve Development known as The Reserve at Tuscawilla, Phase
I, according to the plat thereof recorded in Plat Book 48, Page 31
through 40, Public Records of Seminole County, Florida.
D. Developer reserved in the Declaration the right to impose
the Declaration upon the second phase of the Reserve Development.
E. Developer is the curren"!: fee simple owner of tha't certain
real property known generally as the second phase or Phase II of
the Tuscawilla Development, which property is more particularly
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described on Exhibit "A" attached hereto and, by this reference,U'l
hereby incorporated herein (the "Phase II Property"). :2
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F. Developer intends to develop the Phase II Property int~
residential uses with lots, streets, street lights, open spaces,~
and other common areas and improvements for the benefit of th~
owners of the Phase I I Property, all as are or wi 11 be reflected irP
the plat of the Phase I I Property to be recorded in the Publi~
Records of Seminole county, Florida.
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G. Developer desires to extend the scheme, coverage and
operative effect of the Declaration to the Phase II Property.
H. Developer further desires to amend- the Declaration, as to
the Phase II Property only, to be consistent with the building
setback lines required by the ctty of Winter Springs which are set
forth on the plat of the Phase II Property.
NOW. THEREFORE. Developer for itself and its successors and
assigns, by the execution and recording in the Public Records of
Seminole County, Florida of this Supplemental Declaration, does
hereby declare that the Phase II Property shall be subjected to the
scheme, coverage and operative effect of, and shall be held,
transferred, sold conveyed, and occupied subject to the covenants,
restrictions, easements, charges and liens (sometimes referred to
as Ifcovenants and restrictionsll) contained in, the Declaration, as
amended hereby.
1. Recitals. The foregoing recitals are true and correct
and, by this reference, are hereby incorporated into this
Supplemental Declaration as if fully set forth herein.
2. Definitions. All capitalized terms used in this
Supplemental Declaration shall have the same meanings given to such
terms in the Declaration, unless otherwise amended or indicated to
the contrary herein.
3. &:;xtension of Declar~ion to Phase II Pro'Oerty. Pursuant
to the provisions of Article IV, Section 4.2 of the Declaration,
the Phase II Property is hereby made, and shall be held,
transferred, and occupied, subject to the Declaration, as amended
hereby.
4. Def:i,nitions Qf Subject Propert-y. From and after the
recording of this Supplemental Declaration, and pursuant to the
provisions of Article XVI, Section 16.1 of the Declaration, the
defini tion of the Subj ec't: Property shall be deemed to include the
Phase II Property for all intents and purposes under the
Declaration, including, wi tho1.\t limi 1:ation, for purposes of
establishing the definition of all terms within the Declaration the
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meanin9s of which are dependent, directly or indirectly, upon the
definition of the Subject Property. ~
f;) Buildina Setback Lines. Article VIII, Section 8.8 of th~
Decl~tion currently provides for building setback lines greate~
than those required by the Ordinances of the City and which ar~
stated on the Plats of the Subject Property. In connection witln
its approval of the Plat of 'the Phase II Property, the Ci ty ha~
requested that the setback lines for the Pha.se I I Propert~
contained in the Declaration be consistent with the setback lines
stated on the Plat of the Phase II Property. In furtherance of
such request, 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:
(Lots) No closer than twenty (20)' feet to th~
front yard (street side) property boundary
l'i:ne; - twenty- f1 ve ( 25) feet to the rear yard
property-noundary line; and seven and one-halr
<':1.5) feet to the side yard Bfoperty boundary
lines on 1nterior lots.
( Corner LotS\ Notwi thstanding the side yard
.' building set back lines established above, the
side yard building set back line. on the side
yard of corner lots (i.e., on the street side
of a lot which is not the front of the
residential dwelling constructed thereon)
shall be fifteen (15). feet to_ the side yard
property lines on the side(s) of the property
adjacent to street rights-oi-way.
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Notwithstanding the foregoing, the Architectural Review Board
may, in its discretion, elect to impose building setbacks which are
more restrictive than those stated above.
6. No Further Amenctmen:t.g. In the event of any
inconsistencies between the terms and provisions of this
Supplemental Declaration and the terms and provisions of the
Declaration, the terms and prov~s~ons of this Supplemental
Declaration shall control. otherwise the Declaration is unmodified
and remains in full force and effect.
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IN WITNESS WHEREOF, Developer has caused
Declaration to be executed as of the day and
written.
this Supplemental
year fi rst above
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Signed, sealed and delivered
in the presence of:
"DEVELOPER II
RICHLAND TUSCAWILLA, LTD., g
Florida limited partnership
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By: MANAGEMENT:
Florida
its general
&lx~~!e; ~~fM,~~~n4LBY'Name'
~ ~ ~ Title,
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in Name: . c' -e . (f-Y'Ov'^-
STATE OF FLORIDA
COUNTY OF
The ~q instrument was aC~OWledqed befO/je JT"{Lth~tL
day of , 1995, by ~\W '7':>S , as tw..J ~J of
Richland Management, Inc., a Florida corporation on behalf of
Richland Tuscawilla, Ltd., a Florida limited partnership. Said
person (check one) )r j,$ personally known to me, - 0 produced
as i entification.
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Print Name:
Notary Public, state of Florida
Commission No.: Q..e- 1./73{p;L.3
My Commission Expires :LP / 1<6/9 q
.
A BARBARA A. SKRENTNER
Notal)' Public. Slate of Flonda
My Convn. expires June 18. 1999
No. CC 473623
Bonded TIru "EtIN. ,r....sm....
. 1-(800)723-0121
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THE RESERVE AT TUSCAWILLA, PHASE II
(Page 1 of 2)
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That part of Lots 6 and 7 of Section 6, Township 21 South, Range 3~
East, Seminole County, Florida of the MAP OF PHILLIP R. YONG~
GRANT, recorded in Plat Book 1, Pages 35 through 38 of the Publi~
Records of Seminole County, Flor.ida, lying South of Florida StatID
Road #434 (old S.R. #419), North of the Lake Charm Branch of th~
Seaboard Coast Line Railroad, West of the centerline of Howel;!!
Creek and East of GARDENA FARMS, TOWN SITES, recorded in Plat Book
6, Page 39, of the Public Records of Seminole County, Florida.
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More particularly described as follows:
Beginning at .the Southeast corner of Block "D, "GARDENA FARMS, TOWN
SITES, as recorded in Plat Book 6, Page 39, of the Public Records
of Seminole County, Florida; thence run N 00005'36" E, along the
Easterly line of Block "0" and Block "A" of said GARDENA FARMS,
TOWN SITES, a distance of 810.63 feet to the Southerly right of way
line of Florida State Road #434 (old State Road #419); thence run
N 88028'22" E, along said right of way line, a distance of 794.22
feet to a point of intersection with Florida Department of
Transportation state Road right of way line per Official Records
Book 2790, Page 1548, as recorded in the Public Records of Seminole
County, Florida, said point also being a point on a non-tangent
curve concave Northerly and having a radius of 2983.40 feet and a
central angle of 02001' 15"; thence from a tangent bearing of South
8402112411 East run East along said right of way line and arc of
said curve a distance of 105.23 feet; thence run South 03037'21"
West, along said right of way line, a distance of 5.00 feet to a
point on a curve concave Northerly and having a radius of 2988.40
feet and a central angle of 01011' 32" i thence from a tangent
bearing of South 86022'39" East run East along said right of way
line and arc of said curve a distance of 62.19 feet to a point of
intersection with the West line of Tract "A," THE RESERVE AT
TUSCAWILLA, PHASE 1, according to the Plat thereof as recorded in
Plat Book 48, Pages 31 through 40 in the Public Records of Seminole
County, Florida; thence' run Southerly along the Westerly line of
said plat of THE RESERVE AT TUSCAWILLA, PHASE 1 the following
courses; run S 01031'38" E a distance of 328.79 feet; thence run N
88028'22" E a distance of 154.19 feet to a point on a non-tangent
curve concave West, having a radius of 381.18 feet and a central
angle of 22012'05"; thence from a tangent bearing of N 15024'05" E
run South, along the arc of said curve, 147.70 feet to a point of
compound curvature of a curve concave Northwest, having a radius of
25.00 feet and a central angle of 98004'11", thence run Southwest,
along the arc of said curve, 42.79 feet to a point of inte,reection
with a non-tangent linei thence run 5 18020'2311 W a distance of
69.13 feet to a point on a non-tangent curve concave West, having
a radius of 25.00 feet and a central angle of 103045' 401'; thence
from a tangent bearing of S 75007'49" E run Southeast, along the
arc of said curve, 45.27 feet to a point of compound curvature of
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THE RESERVE AT TUSCAWILLA~ PHASE II
(Page 2 of 2)
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a curve concave Northwest, having a radius. of 283.64 feet and 1E
central angle of 38022' 44", thence run Southwest~ along the arc o~
said curve, 190.00 feet to a point of intersection with a no~
tangent line; thence run S 88028'22" W a distance of 245.23 fee~
thence run N 83026'31lt W, a distance of 284.40 feet; thence run ~
54034'37" E, a distance of 280.22 feet; thence run S 80038'03" Ern
a distance of 108.44 feet to a point on a non-tangent curve concav.e
East, having a radius of 251.65 feet and a central angle of
61014'39", thence from a tangent bearing of S 23004'21" W run
South, along the arc of said curve, 268.99 feet to a point of
tangency; thence run S 38010'19" E a distance of 218.19 feet to the
point of curvature of a curve concave West, having a radius of
60.00 feet and a central angle of 58038'09", thence run South along
the arc of said curve, 61.40 feet to the point of tangency; thence
run S 20027'50" W a distance of 55.01 feet to a point on the North
right of way line of the Lake Charm Branch of the Seaboard
Coastline Railroad per right of way map *r.30-fla., sheets 4 and 4a
said point being on a non-tangent curve concave Northeasterly,
having a radius of 1862.70 feet and a central angle of 13043'43";
thence, departing Westerly line of said plat of THE RESERVE AT
TUSCAWILLA, PHASE 1, from a tangent bearing of N 68018' 20" .W--run.
Northwest, along the arc of said curve and along said North right
of way line, 446.32 feet to a point of tangency; thence run N
54034'37" W, along said North right of way line, a distance of
656.67 feet to the Point of Beginning.
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JOINDER OF MORTGAGEE
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The undersigned, on behalf of AmSouth Bank of Florida, ~
Florida banking corporation, f/k/a Fortune Bank A Savings Bank (thEn
"Lender") being the owner and holder of (i) that certain Mortgag~
and Security Agreement executed May 31, 1994, by Richlanp:!
Tuscawilla, Ltd., recorded on June 16, 1994, in Official Record~
Book 2786, at Page 0648, (ii) that certain Collateral Assigr~~ent of
Leases, Rents and Contract Rights executed May 31, 1994 by Richland
Tuscawilla, Ltd., recorded on June 16, 1994 in Official Records
Book 2786, Page 0670, and (iii) that certain UCC-1 Financing'
statement recorded June 16, 1994 in Official Records Book 2786,
Page 0682, all of the Public Records of Seminole County, Florida
(the aforesaid loan documents are collectively referred to in this
Joinder as the "Sacurity Documents") hereby joins in the execution
of the wi thin and foregoing Supplemental Declarat,ion and Amendment
to,Declaration of Covenants, Conditions, Easements and Restrictions
fdi- the Reserve at Tuscawilla (the "Supplement") for the express
purpose of manifesting' its agreemen't with and consent to the
recordation of the Supplement and for the further purpose of
subordinating, and it does hereby subordinate, the lien and
encumbrance of the Security Documents to each and everyone of the
covenants, conditions, restrictions, easements and reservations set
forth in the Supplement.
IN WITNESS rlHEREOF ,the Lender has caused. 1.-:11e86 present to be
executed by its undersigned officer t.hereunto duly authorized on
this J. Lft... day of _~jo" r-r ,1995.
Witnesses:
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rint Name: -5a../7d.r,q t?, . 2?.e. .:?;Pr-f
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AM SOUTH BAl\IK OF FLORIDA, a
Florida banking corporation,
f/k/a Fortune Bank A Savings
Bank . {J.A _ .
By: ~ ~../~~
Name: mcw-k~. SkdJc,^
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The foregoinq- instrument was acknowled<;red before me thi s ;.:<. ...J.i:Jn.
day of OC-tOl>Gf(. , 1995, by /nlu:.k IE. SheidQ/lI, as Vice Pres/clf';';1-
of AMSOUTH BANK OF FI:"ORIDA, a Florida banking corporation, fjkja
Fortune Bank A Savings Bank, on behalf of the bank. Said person.
(check one) ~is personally known to me, 0 produced
as identification.
STATE OF FLORIDA
COUNTY OF
PJNELU;S
....~..~"" CHERYL A. HAMMER
l~~~"~"'- CO.ulI""'ION 1/ CC 160182 EXPIRES
. . ..- M'f...."..,., 995
:..: : E November 13. 1
\~.; ..J.,: llIRIl TROY F~IlINSlJWlCE.INC.
~1,'t,iif."f:t'cf:'" BONDEO
4tZ1rwr!A
ame = (!flEP-YL j). J-}/}/1)hla
Not Public, state of Florida
Commission No. =
My Commission Expires:
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DECLARATION OF COVENANTS. CONDITIONS. E~EMENTS
AND RESTRICTIONS
THE RESERVE AT TUSCAWiLLA
FOR
RETuRN 'To:
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
. . . . . - . . . . . . . . . . . . . . . . . . .
ARTICLE II
OBJECTS AND PURPOSES
. . . . . . . . . . . . . . . . . . . .
ARTICLE I II
EFFECT OF DECLARATION . . . . . . . . .
3.1 Covenants Running with Land.
3.2 Property Affected.
3.3 Parties Affected. . . . . . .
ARTICLE IV
PROPERTY SUBJECT TO DECLARATION
4.1 Subject Property. . .
4.2 Addition of Property.
ARTICLE V
USE CLASSIFICATIONS . . . . . .
5.1 Residential Property.
5.2 Common Property.
ARTICLE VI
PERMITTED USES . . . . . . . .
6.1 Residential Property.
6.2 Common Property.
ARTICLE VII
USE RESTRICTIONS - RESIDENTIAL PROPRRTY
7.1 Single Family Only. . .
7.2 Ownership and Leasing.
7.3 Subdivision. ....
7.4 Comrrl~rcial Activity.
7.5 Offensive Activity. .
7.6 Animals and Pets. . .
7.7 Commercial and Recreational Vehicles.
7.8 Golf Carts. . . . . . .. .....
7.9 Maintenance. ............
7.10 Reconstruction of Damaged Improvements.
7.11 Garbage and Garbage Containers.
7.12 Burning. ......
7.13 Storage Tanks. ......
7.14 Mineral Exploitation. . . .
7.15 Laundry and Clothes Drying.
7.16 Radio ~ransmission Equipment.
7.17 Signs. . . .
7 .18 Trees. .......
7.19 Drainage. . . . . . . .
7.20 Rules and Regulations.
7.21 Enforcement. .....
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7.22 Precedence Over
Regulations.
Less
Stri"lgent
Governmental
ARTICLE VI I I
BUILDING RESTRICTIONS - RESIDENTIAL PROPERTY
8.1 Building Type.
8.2 Approved Plans. ...
8.3 Governmental Regulations.
8.4 Design Standards Manual.
8.5 Construction. . .
8.6 Construction Time.
8.7 Height Limitation.
8.8 Building Setback Lines.
8.8.1 Lots..
8.8.2 Corner Lots.
8.8.3 Exclusions.
8.9 Other Setback Lines.
8.9.1 Swimming Pools.
8.9.2 Swimming Pool Decks, Patio8
Enclosures. .. .... ....
8.9.3 Outbuildings and Accessory Structures.
8.9.4 Design Standards Manual.
Intentionally Blank .
Dwelling Size.
Temporary Improvements.
Garages and Carports.
Curb Cuts.
Driveways. '"
Roofs. . . .
Roof Structures.
Antennas, Etc.
Windows. ....
Reflective or Mirrored Glass.
Awnings, Shutters and Window Coverings.
Exterior Air Conditioning Equipment.
Fences and Walls. ........
Swimming Pool Screens. .......
Exterior Building Materials, Finishes and Colors.
Exterior Lighting. .......
Mailboxes and Other Delivery Boxes.
Underground Utilities.
Landscaping.
Grass. .....
Trees. .....
Irrigation Systems. .
Artificial Vegetation. ...
Precedence Over Less Stringent Governmental
Regulations. . . . .. .....
8.35 Waivers, Exceptions and Variances by Developer.
8.36 Architectural Review Board Approval. . . . . .
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 IX
COMMON PROPERTY . . . . . . . .
9.1 Additional Property.
9.2 Restriction on Use. .
9.3 Restriction on Conveyance.
9.4 Encumbrance as Security.
9.5 Use by Owners.
9.6 Delegation of Use. ...
9.7 Waiver of Use. . . .
9.8 Administration and Care.
9.9 Rules and Regulations.
9.10 Community Wall. . . . . .
9.11 Payment of Assessments Not Substitute
ARTICLE X
ASSESSMENTS . . . . . . . . . . . . . . . . 30
10.1 Assessments for Common Expenses. 30
10.2 Common Expenses. ....... 30
10.3 Use of Assessments. . . . . . . 32
10.4 Prohibited Use of Assessments. 32
10.5 Lien for Assessments. . . . . . 32
10.6 Personal Liability for Assessments. 32
10.7 Types of Assessments. . . . . . . . 33
10.8 Regular Assessments. ....... 33
10.8.1 Rate of Regular Assessments. 33
10.8.2 Developed vs. Undeveloped Lots 34
10.8.3 Notice of Regular Assessments. 34
10.8.4 Commencement of Regular Assessments. 34
10.8.5 Insufficient Regular Assessments. 34
10.8.6 Limitation on Increases. 34
10.8.7 Payment of Assessments. 35
10.8.8 Developer Option. . . . 35
10.8.9 Reserves........ 35
10.9 Capital Expenditure Assessments. 35
10.10 Special Assessments. . . . . 36
10.11 Individual Lot Assessments. 36
10.12 Quorum for Action Authorized Under Subsections
10.8.6 and Sections 10.9 and 10.1. 37
10.13 Uniformity of Assessments. . . . . 37
10.14 Exempt Property. . . . . . . . . . 38
10.15 Subordination of Assessment Lien. 38
10.16 Certificate of Assessments Due. 38
10.17 No Defenses or Offsets. ..... 39
10.18 Waiver of Homestead and Other Exemptions. 39
ARTICLE XI
NON-PAYMENT OF ASSESSMENTS
11. 1 Delinquency. .
11.2 Notice of Lien. .
11.3 Foreclosure of Assessment Lien.
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EASEMENTS
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14.1.1 Utility Easements.
14.1.2 Drainage Easements.
14.1.3 Intentionally Blank
14.1.4 Wall and Landscape Easements.
14.1.5 Landscape Easements.
14.1.6 Conservation Easements. . . .
14.1.7 Intentionally Blank ....
14.1.8 Construction and Sales Easements.
14.1.9 Association Easement. . .
14.1.10 Common Roads and Streets.
14.2 Future Easements. . . . . . . . . .
ARTICLE XV
ARCHITECTURAL AND LANDSCAPE CONTROL . . . .
15.1 Reservation of Architectural
Control. . . . .
Architectural Review
Architectural Review
Architectural Review
Objective Standards.
Rules and Regulations.
Subjective Judgment.
Review. ...
Applications.
Procedure.
Approval.
Changes. .
Notice of Action.
Developer Action.
Exculpation for Approval or
Plan s . . . . . . . . . . . .
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
ARTICLE XVII
DURATION
and
Landscape
Board Established.
Board Authority.
Board Approval.
Disapproval
Amendment by Developer.
Amendment by Association.
Manifestation of Requisite Consent.
Effectiveness of Amendments.
Limitations on Amendments. . . . . .
of
. . . . . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..
ARTICLE XVIII
ENFORCEMENT . . . . . . . . . . . . . .
18.1 Parties Entitled to Enforce. . . .
18.2 Limitations on Enforcement Rights.
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18.4
18.5
18.6
18.7
18.8
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Enforcement by Owners
Attorneys' Fees.
No Waiver. . . . . . .
Nuisance. ......
Cumulative Rights and Remedies.
Effect of Invalidation.
Exculpation. . . . . . . . . . .
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ARTICLE XIX
MISCELLANEOUS PROVISIONS . . . . . . . . . . .
19.1 Constructive Notice and Acceptance.
19.2 Personal Covenants.
19.3 Governing Law. . . . . . . . .
19.4 Construction. ........
19.5 Article and Section Headings.
19.6 Singular Includes Plural, Etc.
19.7 Time of Essence. . . . . . .
19.8 Notice. ...........
19.9 Development and Construction by Developer.
19.10 Assignment of Developer's Rights and Interests.
19.11 No Warranties. . . . . . . . . . . . . . . . . .
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Q~CLARATION OF COVENANTS. CONDITIONS. EASEMENTS AND RESTRICTIONS
FOR THE RESERVE AT TUSCAWILLA
THIS DECLARATION OF COVENANTS, CONDITIONS, EASEMENTS ANIi..,
RESTRICTIONS is made and executed this day ofT}
, 1994 by RICHLAND TUSCAWILLA, LTD., a Florid~
limited partnership (hereinafter referred to as the "Developer")~
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WHEREAS, Developer is the record owner of fee simple title tm CJ
certain real property situate in Seminole County, Florida, which i!; 0'\
more particularly described as follows: ~.
All lands included within and embraced by
the plat of THE RESERVE AT TUSCAWILLA, PHASE
I, according to the plat thereof as recorded
in Plat Book~, Pages '3\ -40 ,
Public Records of Seminole County, Florida,
which plat shall include the lands described
on Exhibit "A" attached hereto.
(hereinafter referred to as the "Subject Property"); and
WHEREAS, Developer intends that the Subject Property be
developed as a single family residential community known as "The
Reserve at Tuscawilla"; and
WHEREAS, the Developer desires to insure that the Subject
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
comp:::-i si r.g The Reserve at Tuscawi lla shall be subj ect to these
uniform covenants, conditions, restrictions, easements and
reservations.
NOW, THEREFORE, for and in consideration of the premi ses
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:
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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 al~
plans, specifications and other materials describing or depicti~
improvements proposed to be constructed on Residential Property a~
also responsible for the administration of those provisions cX:i5
Article XV of this Declaration involving architectural a~
landscape control. n
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1.2 "Assessment" shall mean and be defined as any assessme~
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.
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1.3 "Association" shall mean and be defined as The Reserve at
Tuscawilla Communi ty Association, Inc. , a corporation
not-for-profit organized and existing under the laws of the State
of Florida, or any successor corporation accepting the
responsibilities of the Association under this Declaration.
1.4 "Board" shall mean and be defined as the Board of
Directors of the Association.
1.5 "City" shall mean and be defined as the City of Winter
Springs, a political subdivision of the State of Florida,
specifically including each and all of its departments and
agencies.
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 Community
Wall, the Common Streets and Roads, the stormwater management
tracts and far~lities, the benefits of landscape and wall 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 The Reserve at Tuscawilla which remain private
and are not dedicated to public use, as the same are described in
and depicted on the Plat and all paving, curbs, gates and other
improvements, facilities and appurtenances located therein,
including street lights and utility lines.
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1.9 "Community 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 footing~
related equipment, landscaping (including wiring or irrigation:
systems) and other appurtenances. z
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"County" shall mean and be defined as Seminole County, ~
subdivision of the State of Florida, specifical~
each and all of its departments and agencies.
1.10
political
including
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1.11 "Declaration" shall mean and be defined as thfs
Declaration of Covenants, Conditions, Easements and Restrictions
for The Reserve at Tuscawilla and all amendments thereto and
modifications thereof as are from time to time recorded among the
Public Records of the County.
1.12 "Desian Standards Manual" shall mean and be defined as
that document or those documents that may be adopted, promulgated
and published by the Architectural Review Board, as the same shall
be amended from time to time, setting forth architectural and
landscape design standards, specifications and other criteria to be
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
particularly provided in Article XV of this Declaration.
1.13 "Developer" shall mean and be defined as Richland
Tuscawilla, 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 "The Reserve at Tuscawilla" and "The Reserve at
Tuscawilla Communitv" shall mean and be defined as THE RESERVE AT
TUSCAWILLA, the single family residential community planned for and
developed on the Subject 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 Recrulations" shall mean and be defined as
all applicClble 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
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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 i tts
business, in making, holding, insuring or guaranteeing first li~
priori ty real estate mortgage loans and (b) Developer, to t~
extent that Developer shall hold a mortgage upon any portion of t~
Subject Property, and all successors, assigns, assignees a~
transferees of Developer who shall own or hold any mortgage uP19
the Subject Property or any portion thereof which was originalI~
executed and delivered to and owned and held by Developer. I
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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 and
all additions or alterations thereto.
1.18 "Lot(sl" shall mean and be defined as a separate single
fami ly residential bui lding site wi thin the Subj ect Property as the
same is subdivided and described by a number pursuant to and in
accordance with the Plat and shall include any Improvements from
time to time constructed, erected, placed, installed or located
thereon. The Developer currently plans to plat a total of ninety-
two (92) Lots but it is under no obligation, express or implied, to
do so.
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
wi thin The Reserve at Tuscawilla, 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 prooerty" shall mean and be defined as all
of the Lots.
1. 21. 1 "Surface Water or Stormwater Manaqement 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.
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and comprising THE RESERVE AT TUSCAWILLA PHASE I, as ini tial~ (,,'1
described on Exhibit "A" attached hereto, together with a~ <...:>
additional lands the Developer may subsequently extend t~
Declaration to as contemplated in Section 4.2. ~
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ARTICLE II
OBJECTS AND PURPOSES
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The covenants, conditions, restrictions, easements
reservations set forth in this Declaration are hereby imposed
the Subject Property for the following objects and purposes:
(a) To establish The Reserve at Tuscawilla as a premier
single family residential community in Central Florida;
(b) To create, develop, foster, maintain, preserve and
protect wi thin The Reserve at Tuscawilla a unique, pleasant,
attractive and harmonious physical environment which will
contribute to and enhance the quality of life for all residents of
and visitors to The Reserve at Tuscawilla;
(c) To ensure that the development of The Reserve at
Tuscawilla will proceed pursuant to a uniform plan of development
wi th consi stently high archi tectural, environmental, ecological and
aesthetic 'standards;
( d)
development,
Lot, piece,
Tuscawilla;
To ensure the proper and appropriate subdivision,
improvement, occupation, use and enjoyment of each
parcel or tract of land within The Reserve at
(e) To protect each Lot, piece, parcel or tract of land
within The Reserve at Tuscawilla 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 The Reserve at Tuscawilla;
(g) To guard against the development and construction of
improper, undesirable, unattractive or inappropriate Improvements
and the use of improper, undesirable, unsui table or unsightly
materials;
(h) To provide for the future ownership, management,
administration, improvement, care, maintenance, use, regulation,
preservation and protection of al,l Common Property wi thin The
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Reserve at Tuscawilla and to provide for
availability of the funds required therefor;
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(i) To provide for the establishment, maintenanc~
preservation, protection and enhancement of consistently hi~
property values within The Reserve at Tuscawilla; ("")
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Governmental Regulations and other governmental requirements; r-
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(k) To provide Developer wi th effective control over the
development, management, administration, care, maintenance, use,
appearance, marketing and sale of and the construction of
Improvements upon the Subject Property for so long as Developer
shall own portions of the Subject Property; and
(1) In general, to provide for the development,
creation, operation and preservation upon the Subject Property of
an exclusive single family community of the highest quality and
order.
ARTICLE III
EFFECT OF DECLARATION
3.1 Covenants Runninq 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 Prooerty Affected. This Declaration 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, assigned, leased,
mortgaged, occupied, used and enjoyed subject to and benefited 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
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the Subj ect Property, whether by, through or under Developer or any N
subsequent Owner, shall, by virtue of the acceptance of any s~ CO
right, title, interest or claim, whether by deed or ot~~
instrument, or by operation of law or otherwi se I and whet:tiii:r ~
voluntarily or involuntarily, be deemed to have acquired ~
accepted such right, title, interest or claim in or to any s~
Lot, piece, parcel or tract of the Subject Property subject to ~
benefited and burdened by the covenants, conditions, restriction~ ~
easements and reservations set forth in this Declaration the same en
as if such person or party had specifically joined in and agreed co
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 or
any other instrument of conveyance pursuant to which such right,
title, interest or claim was acquired.
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ARTICLE IV
PROPERTY SUBJECT TO DECLA~.TION
4.1 Subject Property. The property which shall be subject
to, and encumbered, governed, benefited and burdened by this
Declaration shall be all of the Subject Property as the same is
herein defined and described.
4.2 Addi tion 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 a
substantially similar declaration upon addi tional property adj acent
or contiguous (including, but not necessarily limited to the second
phase of The Reserve at Tuscawilla), notwithstanding any right-of-
way, to the Subject Property which is now or may hereafter be owned
by Developer, 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 Community Wall,
the Common Streets and Roads, the stormwater management tracts, the
benefit of landscape and wall 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
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Lot, as provided in this Declaration, and all easements, if any,
granted to the Association.
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6.1 Residential Property. Except-as hereinafter provided tp
Subsection 14.1.8 of this Declaration, Residential Property shati
be improved as and used, occupied and enjoyed solely a~
exclusively for single family residential dwelling purposes and no
other uses or purposes whatsoever.
ARTICLE VI
PERMITTED USES
6.2 Common Pro-perty. Common Property shall be improved,
maintained, used, and enjoyed for the common recreation, health,
safety, welfare, benefit and convenience of all Owners and
residents of The Reserve at Tuscawilla and their guests and
invitees.
ARTICLE VII
USE RESTRICTIONS - RESIDENTIAL PROPERTY
The use, occupation and enjoyment of Residential Property shall
be subject to and governed by the following covenants, conditions
and restrictions:
7.1 Sinqle 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 Ownershi-p and Leasino. Ownership of Residential Property
-;hall 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. Nothing herein contained, however, shall prevent the
subdivision of a Lot by Developer in such manner that any portion
of a Lot may be sold, transferred and conveyed by Developer,
together with the whole of an adjacent or contiguous Lot such that
the whole of one Lot and a portion of another Lot which are owned
in common by the same Owner may be combined, developed and improved
by such Owner as a single unified home site. Once so combined,
developed and improved as a single unified residential home site no
such combination of a Lot and a portion of another Lot or
combination of two (2) or more Lots shall thereafter be
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resubdivided into more than one (1) single family residential home~
si te. In the event of any such conveyance and combination, ~ (Jl
grantee from the Developer shall cause to be submitted Xn W
application to modify or re-plat the lots affected by su~
conveyance and combination. ~
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7.4 Commercial Activity. Except (i) the permitted activitii}
specifically provided in Subsection 14.1.8 of this Declaration, ai14 0
(ii) the use of a room or rooms within a residence as an in-ho~ ~
office, no business, commercial, industrial, trade, professional or c:::>
other non-residential activity or use of any nature, type, kind o~
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
generate traffic by customers, vendors or the like, through The
Reserve at Tuscawilla or to the residence.
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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 The Reserve at Tuscawilla Community 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 Animals and Pets. No reptiles, livestock, poultry or
animals of any kind, nature or description shall be kept, bred or
raised upon Residential Property, except for dogs, cats, birds or.
other usual and customary household pets which may be kept, raised
and maintained upon Residential Property, provided that the same
are not kept, raised or main~ained thereon for business or
commercial purposes or in number deemed unreasonable by Developer
or the Association, in the exercise of their reasonable discretion.
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.
9
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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, moto~
home, house trailer, camper, van, boat, boat trailer, horse traile~
or other recreational 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 garagep
nor shall any such commercial or recreational vehicle or the lik91
be permitted to be parked or stored on any street wi thin th~
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 acti vi ty is taking
placei nor shall the foregoing provisions of this Subsection (a)
apply to parking on "a temporary or short-term basi s" (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-
wheeled motorized vehicle, or the like, shall be permitted to be
pa~ked or stored on Residential Property unless the same shall be
parked or stored entirely within and fully enclosed by a garage.
(d) In the context of this Section 7.7, parking on "a
temporal.Y or short-term basis" shall mean and be defined as parking
for a continuous period not exceeding twenty-four (24) hours in
duration. Parking on "a temporary or short-term basis" is
permitted only for (i) recreational vehicles belonging to over-
night guests of Owners, (ii) commercial vehicles used in connection
wi th 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 eRch calendar year.
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(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. ~
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(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 regulationEp
governing the admission to and parking, use and storage o~
commercial and recreational vehicles within The Reserve a~'
Tuscawilla, and if so adopted the same shall be binding upon all
Residential Property and all Owners and their guests and invitees.
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(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
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 r~~oval, 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 this
Section 7.7 shall be grounds for relief of any kind.
7.8 Golf Carts. No golf carts shall be permitted to be used
or stored on Residential Property or the Common Streets and Roads
unless first approved and licensed in writing by the Association in
its sole and absolute discretion. The Association, however, shall
not be authorized to approve and license any golf cart for use on
any of the Subj ect Property unless (a) the cart is in proper
mechanical condition and a good state of' repair and appearance, (b)
the cart is of the same type, make, model and color of the golf
carts generally used or previously approved by the owner or lessee,
from time to time, of the Tuscawilla Golf Course and Country Club
Property for use on the Tuscawilla Golf Course and Country Club
Property, (c) the cart is licensed by the owner or lessee, from
time to time, of the Tuscawilla Golf Course and Country Club
Property for use on such golf course, (d) said use is not a
violation of any applicable governmental rules or regulations, and
(e) said use does, not increase the premium for any comprehensive
public liability insurance coverage either the Developer or the
Association may wish to elect to obtain for all or any portion of
the Subject Property. In no event shall the Association be
11
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permitted to approve and license any golf carts equipped with a
radio, television, horn, buzzer or other sound equipment of any
type or decorated in any manner not approved by the Owner or
lessee, from time to time, of the Tuscawilla Golf Course andJ1
Country Club Property. The Association shall not be entitled t~
establish and charge a uniform reasonable fee for its inspection~
approval and licensing of golf carts. Such fee of the Associatio~
shall be separate and apart from, and in addition to, any trail o~
license fee charged by the owner or lessee, from time to time, o~
the Tuscawilla Golf Course and Country Club Property in connection
with the use of any golf cart on the golf course. ~
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7.9 Maintenance. Each Lot and all Improvements, including
landscaping, located thereon shall at all times be kept. and
maintained in a safe, clean, wholesome and attractive condition
shall not be allowed to deteriorate, fall into disrepair or become
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 7.9 shall be in accordance with the provisions of section
7.21 of this Declaration and such other provisions of this
Declaration as shall be applicable to its enforcement generally.
7.10 Reconstruction of Damaqed 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, within 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 7.21 of this Declaration
and such other provisions of this Declaration as shall be
applicable to its enforcement generally.
7.11 Garbage and Garbaqe 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
adj acent or neighboring property including all of the Common
Streets and Roads. Further, all garbage and trash containers 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
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the street and placed back in their storage areas the night of such
pickup or removal.
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7.12 Burninq. No burning of leaves, trash, rubbish, garbag~
or other waste materials of any type shall be permitted oK
conducted on Residential Property. Nothing herein contained~
however, shall be deemed to prohibit the burning of wood, logs ~
charcoal in properly constructed or installed fireplaces, barbecu~
cookers or the like, whether inside or outside of any building ~
other structure located on Residential Property. ""TI
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7.13 Storaqe Tanks. No storage tanks, including but not
limited to, those for water, oil, propane gas or other liquid,
fuels or chemicals, including those used for swimming pools'or the
like, shall be permitted outside of a building on Residential
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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7.14 Mineral EX9loitation. No exploration, mining,
quarrying, or drilling for or exploitation of gas, oil, phosphate
conducted on Residential Property.
7.15 Laundry and Clothes Dryinq. 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.
7.16 Radio Transmission Equipment. No radio, microwave or
other electronic transmission equipment, including ham radios,
ci tizens 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, including The Reserve at Tuscawilla central
cable television and gate control systems.
7.17 Siqns. No sign, billboard or advertising of any kind
shall be displayed to public view on Residential Property without
the prior wri tten 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
prepared sign of not more than five (5) square feet placed on the
street side of a Lot identifying the architect and general
13
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contractor responsible, respecti vely, for the design anQ.n
construction of a dwelling under construction on a particular Lot~
provided, however, that such sign is first approved in writing b~
Developer, and (c) one (1) discreet professionally prepared "fof2
sale" sign of not more than five (5) square feet placed on ther1
street side of a Lot; provided, however, that such sign is firs~
approved in writing by the Architectural Review Board?
Notwi thstanding the foregoing provisions of this section, DevelopeF!
specifically reserves for itself and its agents, employees~'
nominees and assigns the right, privilege and easement to
construct, place and maintain upon Residential Property signs as it
deems appropriate in connection with the development, improvement,
construction, marketing and sale of any Residential Property.
Except as hereinabove provided, no signs or advertising materials
di splaying the names or otherwi se adverti sing the identity of
contractors, subcontractors, real estate brokers or the like
employed in connection with the construction, installation,
alteration or other improvement upon or the sale or leading of
Residential Property shall be permitted.
7.18 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 thi s provi sion shall be
immediately replaced with a tree of similar size and type.
7.19 Drainaqe. 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 adjacent 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
accordance with the site grading and drainage plans for the Lot
approved by the City.
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7.20 Rules and Reaulations. In addi tion to the foregoing
restrictions on the use of Residential Property, the Associatio~
shall have the right, power and authority, subject to the prio~
wri tten consent and approval of Developer, to promulgate and impos~
reasonable rules and regulations governing and/or restricting th~
use of Residential Property and to thereafter change, modify~
al ter, amend, rescind and augment any of the same; providedn
however, that no rules or regulations so promulgated shall be in?
conflict with the provisions of this Declaration. Any such rule~
and regulations so promulgated by the Association shall b~
applicable to and binding upon all Residential Property and the
Owners thereof and their successors and assigns, as well as all
guests or invitees of and all parties claiming by, through or under
such Owners.
7.21 Enforcement. In the event of a violation of or failure
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 wi thin
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.
7.22 Precedence Over Less Strinqent Governmental Reaulations.
In those instances where the covenants, condi tions 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 thi s Article VI I, the
Governmental Regulations shall take precedence and prevail over the
le'ss stringent, covenants, conditions and restrictions set forth in
this Article VII.'
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ARTICLE VIII
BUILDING RESTRICTIONS - RESIDENTIAL PROPERTY
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The erection, placement, construction, repair, replacement and?2
installation of all Improvements on Residential Property shall be~
subject to and governed by the following covenants, conditions,g
restrictions and reservations: ~
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8.1 Buildinq Tyoe. As the use of Residential Property is
limited to single family residential dwelling purposes only, no
building or structure other than one (1) single family residence or
dwelling and its related appurtenances, facilities and Improvements
shall be placed, located, erected, constructed or installed or
permitted to remain on Residential Property.
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.
8.3 Governmental Requlations. 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, particularly those
applicable to the Tuscawilla PUD.
8.4 Desiqn 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 The
Reserve at Tuscawilla. 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
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)
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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 o~
Article XV of this Declaration and any prior approval of the sam~
by the Architectural Review Board shall no longer be binding on th~
Archi tectural Review Board. Upon commencement of constructionJ.::
such construction shall be prosecuted diligently, continuously an~
wi thout interruption to completion wi thin a reasonable time; but ire
no event more than one (1) year from the date of the commencemen~
of such construction, however, the Archi tectural Review Board shalr
have the power and authority to extend the period permitted for
construction, as aforesaid; provided that the Owner and general
contractor involved make written application for such extension-
stating the reasons for the requested extension of time and
provided further that the Architectural Review Board, in the
exercise of its reasonable discretion, determines that the request
is reasonable and the extension is warranted.
8.7 Heiqht Limitation. No Improvement on Residential
Property shall exceed thirty-five (35) feet in height, from the
finished grade to the roof peak a1: 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 th~ Architectural Review Board.
8.8 Bui ldinq Setback Lines. No part of any bui lding 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 ()O) feet to th~
fronr ya~d (street side) property boundary line; twenty-five
(1L5) feet to the rear ~ard property boundary line; ~d ten (10)
~eet to the side yard property boundary lines on interior lots.
8.8.2 Corner Lots. Notwithstanding the side yard
building setback lines established elsewhere in this Section
8.8, the side yard building setback line on the side yard of
corner lots (i.e., on the street side of a Lot which is not the
front of the residential dwelling constructed thereon) shall be
twenty (20) feet to the side yard property lines on the side(s)
of the property adjacent to street rights of way.
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.
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, th~n as follows:
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8.9.1 Swimminq Pools. No closer than the otherwise
established side yard building setback line plus an additional
five (5) feet and no closer than fifteen (15) fee~ to any rear
yard property boundary line from the water's edge. No swimmin~
pools shall be constructed in front or side yards. ~
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8.9.2 Swimminq Pool Decks. Patios and Enclosures. N~
swimming pool deck or patio, whether constructed of concrete~
cool deck, aggregate wood or any other material shall b€
constructed nearer than ten l10) feet to any rear yard propert~
line or nearer than the otherwise established. side yar~
building setback line to any side yard p-roperty line. A screeIl
enclosure shall be constructed no closer than ten (10) feet to
any rear property line.
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8.9.3 Outbuildinqs and Accessory Structures. All
outbuildings and accessory structures shall be located within
the building setback lines otherwise established for the main
residential dwelling on any Lot unless otherwise approved in
wri ting by the Archi tectural Review Board. No such outbuilding
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 Desiqn 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 Int~ntionally Blank.
8.11 Dwellinq Size. Each single family residential dwelling
constructed on Residential Property shall have a minimum heated and
cooled living area of twenty-five hundred (2500) square feet.
8.12 Temporarv ImDrovements. 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 permitted by
applicable governI'(tental authorities, are located as inconspicuously
as possible, are removed immediately following the completion of
such construction, and are not utilized as living quarters. The
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location of such temporary improvements during construction shall
be approved in writing by the Architectural Review Board.
8.13 Garaaes and Carports. No carports shall be placed~
erected, constructed, installed or maintained on Residentia~
Property. Each single family residential dwelling constructed an~
maintained on Residential Property shall have an attached garage a~
an appurtenance thereto. All garages shall be for not less tha8
two (2) standard sized passenger automobiles. Garages for morE>
than three (3) automobiles must be specifically approved by th~
Archi tectural Review Board. Each garage shall have a minimum
width, as measured from inside walls, of ten (10) feet per car and
a minimum depth for each car of twenty-one (21) feet. Garages may
also contain appropriately sized storage rooms, recreational
workshops and tool rooms as approved by the Architectural Review
Board. Subject to the granting of a variance by the Architectural
Review Board as hereinafter provided, all garages shall be
designed, erected, constructed, installed or maintained as side
entry/load in such manner that the garage doors thereof shall not
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. Notwithstanding 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 The Reserve at Tuscawilla, 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 wi th 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.
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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 ang~
of the approach of all driveways and curb cuts shall be subject t6
the approval of the Architectural Review Board. ~
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8.15 Driveways. All driveways, turnarounds and parking areaY
shall have a concrete base and shall be paved or finished with g
hard dust-free material approved by the Architectural Review Boarq,
or otherwise specified in the Design Standards Manual. Eactr
driveway shall extend the entire distance from the garage door to
the paved portion of the street or roadway in front of or adjacent
to the Lot on which such driveway is constructed.
8.16 Roofs. The roofs of the main body of all buildings and
other structures, including the principal residence, shall be
pitched. No flat roofs shall be permitted without the approval of
Developer and the Architectural Review Board. Developer and
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
verticaljhorizontal) 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, 30-
year archi tectural dimensional shingle or other materials specified
in the Design Standards Manual or otherwi se 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 s~all 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.
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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 t~
applicable provisions of the Design Standards Manual. In no even~
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8.20 Reflective or Mirrored Glass. No reflective or mirrore~
glass shall be used on, in or for the windows or doors of an~
buildings or other Improvements constructed upon Residentia~
Property. No tinted windows or doors shall be permitted unles~
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 Awninqs. Shutters and Window Coverinqs. No window of any
building or other Improvements constructed upon Residential
Property shall be covered by any awnings, canopies, shutters,
(including hurricane or storm shutters), boards, or similar type
window coverings, except as approved by the Architectural Review
Board or such as may be required for protection from storms and
only then during the period of any such storm. Nor shall any such
windows be covered by or coated with any foil or other reflecting
or mirrored materials. The foregoing restriction shall not be
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.
8.22 Exterior Air Conditioninq 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 Bo~rd. 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
Archi tectural 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
Arr.hitectural Review Board, in its discretion; provided, however,
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that in no event shall uncovered or exposed (whether concrete or
concrete blocks, painted or not) chain link or prefabricated wood~
fences be permitted. ~
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8.24 Swimminq Pool Screens. No sWJ.mmJ.ng pools shall lre"
enclosed by any screen, screening or other enclosure or under A
roof of any kind unless the same shall be located entirely withko
the extension of the side walls of the main residential dwelling ~.
the Lot on which such swimming pool is located. All pools shall tie
subject to approval by the Architectural Review Board.
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8.25 Exterior Buildinq 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 building
structure or wall. The foregoing restriction shall be equally
applicable to the initial as well as any subsequent painting of any
Improvements located on Residential Property.
8.26 Exterior Liqhtinq. Exterior lighting or illumination of
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 be conform to
and with the applicable provisions of the Design Standards Manual.
Special exceptions to such specifications may be approved by and
wi thin the di scretion of the Architectural Review Board upon a
showing of good cause therefor.
8.27 Mailboxes and Other Delivery Boxes. Until such time as
the United States Post Office Department shall approve mail
delivery service to The Reserve at Tuscawilla 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
mai Ibox for the delivery of United States mai 1. 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 The
Reserve at Tuscawilla 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
22
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constructed on his Lot. All other delivery boxes or receptacles ~
any kind, including those for newspapers, milk and other simil~
home deliveries, shall also be designed, constructed and located ~
conformance with the applicable provisions of the Design StandardS
Manual or as otherwise approved by the Architectural Review Boar~
Developer shall have the right to require that all street aD
roadside mailboxes shall be of one particular type or desigr?
specified by Developer so long as such designated type or desi~
meets the rules and regulations of the United states Post Office
Department.
8.28 Underqround 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 Boardj 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
permanent improvements, and, provided further, that the same are
removed immediately following the completion of such constructionj
(b) above-ground electric transformers, meters and similar
apparatus properly screened as specified in the Design Standards
Manual or as otherwise approved by the Architectural Review Boardj
(c) permanent outdoor safety light poles located and installed in
conformance with the applicable provisions of the Design Standards
Manual, or as otherwi se approved by the Architectural Review Board.
8.29 Landscapinq. Each Lot shall be landscaped in accordance
wi th 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 landscaping 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.
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.
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8.32 I rriqation 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 wi th th~
Residential Property) shall be irrigated by means of an automati~
underground irrigation or sprinkling system capable of regularl~
and sufficiently irrigating all lawns and plantings within sucED
open areas. The plans and specifications for each such irrigatio~
or sprinkling system shall be included in and submitted with and>
reviewed and approved by the Architectural Review Board as part o~
the landscape plan required pursuant to the provisions of Sectiofn
8.2 of this Declaration. Such irrigation or sprinkling system
shall be installed prior to or simultaneously with the
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.
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8.33 Artificial Veqetation. 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 Reoulations.
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.
8.35 Waivers I ExceDtions and Variances bv DeveloDer.
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 minimus, 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
24
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where a literal interpretation or application of any such building
restriction to a particular Lot would be inappropriate, inequi table
or otherwise work or result in a hardship or deny such Lot and t~
Owner thereof specific rights which are generally enjoyed by oth2r
Lots and Owners; it being expressly provided, however, that, in a~
cases, Developer, in its exerci se of such right and pri vi le~
shall, in its reasonably exercised and good faith judgment a*9
discretion determine or decide that its grant of any such waive~
exception or variance shall not result in, represent, be ~
constitute a significant deviation of or derogation from (a) tEe
uniform plan of development for The Reserve at Tuscawilla, (b) the
high architectural, ecological, environmental and aesthetic
standards otherwise established for The Reserve at Tuscawilla or
(c) the obJects and purposes of this Declaration as hereinabove
enumerated in Article I I of this Declaration. Notwithstanding
anything to the contrary 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, unti I 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 The Reserve at
Tuscawilla, whichever shall last occur. Following the occurrence
of the last of the foregoing events to occur, the right and
privilege of Developer to grant waivers, exceptions and variances,
as aforesaid, shall be delegated and assigned by Developer to and
thereafter vest in the Architectural Review Board. To the extent
that any such waiver, exception or variance is granted in a
particular instance or wi th respect to any particular Lot or
Improvement pursuant to the provisions of this 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 or variance in
any other particular instance or any other particular Lot or
Improvement.
8.36 Architectural Review Board Apl;)roval. 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 Approved 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 ~r equity.
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ARTICLE IX
COMMON PROPERT":(
9.1 Additional Property. In addition to the Common Proper~
described in Section 5.2 of this Declaration or included wi thin tlii[
term "Common Property" as defined in Article I of this Declaratio~
Developer, in its sole discretion, shall have the right to conv~
to the Association and the Association shall be obligated to accep~
any other portion of the Subj ect Property or any other re~
property owned by Developer so long as such property is used ~
useful for any of the objects and purposes for which t~
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 wi th 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
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 The Reserve at Tuscawilla Community 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
conveyance of any Common Property to the Association by Developer,
the Common Property may not be subdivided, partitioned, sold,
transferred, conveyed, alienated, leased, mortgaged or hypothecated
by the Association in any manner whatsoever without the prior
written consent of Developer. Neither shall the Common Property be
abandoned by the Association without the prior written consent of
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 wi thout 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, tD~ Association shall have the right :iu'l
accordance with this Declaration and its Articles of Incorporati~
and By-Laws to (a) borrow money for the purpose of improvin<;;E=i
replacing, restoring or expanding the Common Property and ~
mortgage or otherwise encumber the Common Property solely era
security for any such loan or loans and (b) engage in purcha~
money financing with respect to personal property and equipmen~
purchased by the Association in connection with the performance ~
its duties and obligations pursuant to this Declaration and t.o
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 otherwi se
encumber any easements granted to it.
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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
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 titl"; to each and every Lot within the Subject
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:
(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 invi tees to use the Common Property or any
portion thereof designated by the Association during any time in
which any Assessment levied by the Association against such Owner
and his Lot remains unpaid and delinquent for a period of thirty
(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
27
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be made by the Association, or a committee duly appointed by the
Association for that purpose, only after appropriate notice a~
hearing given and held in accordance with the By-.Laws of th:e:.
Association. Notwithstanding anything herein set forth to th5
contrary, however, the Association shall have no right, power ar
authority hereunder to suspend or otherwise unreasonably interfer~
with any Owner's right, privilege and easement to use the Commo~
streets and Roads for ingress and egress to and from such Owner'~
Lot; it being expressly provided, however, that temporarV
interference for purposes of appropriate identification at and
clearance through The Reserve at Tuscawilla limited access gates
shall not be deemed to be an unreasonable interference with such
right, privilege and easement of and for ingress and egress.
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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 pro tect the
Common Property.
9.6 Deleoation 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
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 the
Common Property.
9.7 Wai ver of Use. No Owner may exempt himself from personal
liability for or exempt his Lot from any Assessments duly levied by
the Association, or release the Lot owned by him from the liens,
charges, encumbrances and other provisions of this Declaration, or
28
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, . .
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 ~
such right, privilege and easement as provided in Section 9.5 Q!
this Declaration. Z
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9.8 Administration and Care. The administration, regulatio~
care, maintenance, repair, restoration, replacement, preservati~
and protection of the Common Property shall be the responsibilit~
of the Association as more particularly prov~ded in Article XII err
this Declaration and in the Articles of Incorporation of the
Association.
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9.9 Rules and Reaulations. In addition to the foregoing
restrictions on the use of Common Property, the Association shall
have the right, power and authority, sllbject 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 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 Community Wall, and no
permanent wall, building, or other structure may be installed,
maintained, restored, or permitted to remain on any Lot within five
(5) feet of the Community 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'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 Community Wall and for the maintenance
of the Community Wall. The Association shall be responsible for the
installation, maintenance, restoration, and removal of (i) the
Community Wall and (ii) the landscaping located within any five (5)
foot landscape and wall easement to the exterior of the Community
Wall. The landscape and wall easements shown on the Plat include
the right of the Association to enter each Lot on which the
Communi ty Wall is situated to install, maintain, restore, and
remove the Community Wall.
29
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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 limitation, those for t~
maintenance of the Common Property, including those Assessments f~.
maintenance of the Wall and Landscape easements shall not be deemE2
to be a substitute for or otherwise relieve any Owner of t~
Subject Property from paying any other taxes, fees, charges &;
assessments imposed by the City, or any other government~
authority. 0
ARTICLE X
ASSESSMENTS
10.1 Assessments for Common Exoenses. 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.
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
the fees or other compensation paid to consultants to the
Association, including, without limitation, architects, engineers,
accountants and attorneys.
(b) Those incurred in connection with the ownership,
administration, management, regulation, care, maintenance, repair,
30
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restoration, replacement, improvement, preservation, and protection
of the Common Property.
(c) Reasonable reserves for repairs to and replaceme~
of the Common Property. :3;
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(d) Those incurred for utility
Association and the Common Property, including,
electric power for irrigation systems.
~
(e) Those incurred for garbage and trash collecti<fr1
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 cllties and obligations pursuant to this
Declaration, including, without limitation, the fees of or other
compensation paid to consultants to the Architectural Review Board,
including ~rchitects, landscape architects, engineers and
attorneys.
(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.
(m) ThQse incurred in connection wi th the enforcement of
the provisions of this Declaration, including the fees, costs and
expenses of any attorney retained or employed by the Association
for that purpose.
(n) Those incurred in connection
expenditures as described in Section 10.9.
with
capital
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10.3 Use of Assessments. The funds received and derived fromrv
any and all Assessments made by the Association shall be u::ted CO
exclusively for the performance of the duties and obligations ~fLn
the Association pursuant to this Declaration, the payment of Cotnn@n c....>
Expenses, the operation and administration of the Association a~
the promotion of the health, safety, and general welfare of the
residents of The Reserve at Tuscawilla and for the benefit of T~
Reserve at Tuscawilla Community generally. ~ ~
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10.4 Prohibited Use of Assessments. Notwithstanding anything ~
to th~ 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 The Reserve at Tuscawilla or its
development or operation. If, notwithstanding the foregoing
prohibi tion, 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 The Reserve at Tuscawilla shall be and are hereby
exempted from any such Assessment or attempted Assessment.
10.5 Lien for Assessments. All Assessments establi shed, 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
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 Assessment
is so made, levied or imposed. Such personal liability for
Assessments made, levied or imposed pursuant to this Declaration
prior to the sale, transfer or other conveyance of a particular Lot
shall not, by virtue any such sale, transfer or other conveyance,
pass to such Owner's successor or successors in title unless such
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.
32
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10.7 Tvpes ~_Assessments. The Assillation is hereby
authorized and emp~red to establish, make, lWl'y, lmpose, enforce
and collect (i) an initial fee, 1i~)' Regular Assessments, (iii)
Capital Expenditure Assessments, (iv) Special Assessments, and (v)
Individual Lot Assessments, all as described below. r~
(f).
The initial fee shall be collectible from the Owner of a L~
upon the Owner's acquisition of title to the Lot from Develope~
Developer shall not be obligated to pay an initial fee as to a~
Lot. The initial fee shall be TWO HUNDRED FIFTY AND NO/IOO DOLLARS
($250.00) for calendar year 1994. Subsequent to calendar ye~
1994, the amount of the initial fee for calendar year 1995 and eac~
successive calendar year thereafter shall be established a~
determined by the Board which will use its best efforts -eo
establish the fee no later than thirty (30) days prior to the
beginning of each calendar year. The initial fees shall be
deposited into a separate interest bearing bank account to be held
in trust by the Association and, accordingly, same my not be
utilized by the Declarant. Control of this account shall be held
by the Association at such time as the homeowners take-over control
of the Association from the Declarant which is to occur at such
time as the Class B membership ceases to exist.
10.8 Reqular 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 Reqular Assessments. The amount of the
Regular Assessment for calendar year 1994 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 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 pro forma
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 ninety-two
(92) which is the total number of Lots the Developer currently
plans to develop in The Reserve at Tuscawilla. The quotient
shall constitute the amount of the Regular Assessment for the
"constructed Lots" (as defined in Section 10.8.2) for such
calendar years. Pursuant to Section 10.8.2, the Regular
Assessment for 'unconstructed Lots shall be twenty percent (20%)
of that for the constructed Lots.
33
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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 dQft
the Lots which are not being constructed upon. For thi ~
reason, the Association in establishing the rate of Regula~
Assessments shall assess unconstructed Lots for an amount les~
than constructed Lots. In this regard, the Regular Assessment~
of unconstructed Lots shall not exceed twenty percent (20%) ofn
the Regular Assessments of constructed Lots. For purposes of.P
this provision, construction shall be deemed to have commencerl~
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 Reaular 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 Reqular 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 Reaular 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 sh::> 1 I 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 thereafter establish, make, levy,
impose, enforce and collect a supplemental or revised Regular
Assessment for such calendar year.
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 wno 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
34
ssessmen over e Regu ar Assessment for. the
year is sent to each member of the Association at
(~) days in advance of such~eting.
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10.8.7 Payment of Assessments. Regular Assessments
shall due and payable in advance in monthly, quarterly, semi-
annual or annual installments as determined by the Board qh
Directors of the Association, in its reasonable discretioi
Such installments shall be due and payable without any furth
notice other than that notice specified in Subsection 10.8.
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10.8.8 Developer Option. Notwithstanding anything se~
forth in this Declaration to the contrary, the Developer shal12
not be subject 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 thi s 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. Prior to
cessation of the Class B membership, the Declarant shall be
prohibited from utilizing the reserves account except for the
payment of repairs to capital improvements not otherwise to be
paid for by the Declarant as the Developer of The Reserve at
Tuscawilla and for which collateral has been posted with the
City as security in connection with the final Plat.
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,
35
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in whole or in part, the cost of any construction or
reconstruction, or the unexpected repair or replacement of af:(Y
capital improvement to or upon the Common Property, or the cost ~
the initial purchase or any subsequent unexpected repair ~
replacement of any equipment or personal property purchase~
repaired or replaced by the Association in furtherance of tm
discharge of its duties and obligations pursuant to th~
Declaration (the "Capital Expenditure Assessments") i provided..,
however, that any such Capital Expenditure Assessment shall ha~
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 wi th 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. Written 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 Section 10.4,
the Association shall be and hereby is authorized and empowered to
establish, make, levy, impose, enforce and collect against and from
a particular Lot' and the Owner of such Lot an assessment (the
Individual Lot Assessment") for:
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(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 a~
eliminate any violation of or noncompliance with the provisions 6Z
this Declaration, following the failure of such Owner, wi th~
fourteen (14) days following written notice from the Association ~
the nature of the violation of or non-compliance with thfR
Declaration, to cure or remedy such violation or noncompliance; ~
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(b) costs and expenses, including reasonable attorney~
fees, whether or not suit be brought, incurred by the Association
in the enforcement of the provisions of this Declaration against a
particular Lot or the Owner of such Lot;
(c) costs and expenses incurred by the Association in
furnishing or providing labor, s3rvices and materials which benefi t
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
(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 9uorum 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 ~~eting 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
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rights under Section 10.8.8, all Assessments
fixed at an equal amount per Lot and shall
uniform basis from the Owner of each Lot.
shall be uniformly
be collected on a
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10.14 Exempt Propertv. Any property, other than a Lot, whicii
is owned by or dedicated to aid accepted by any governmental bo~
or agency, shall be exempt from any Assessments. All propertry'
otherwise exempted from taxation by the laws of the State o~
Florida or the United States of America shall also be exempt fro~
all Assessments; but only upon the same terms, subject to the sam~
condi tions and only to the extent of any such exemption from
taxation.
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10.15 Subordination of Assessment Lien. The lien of and for
all Assessments provided for in Article X shall be and is hereby
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
liabili ty 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.
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
38
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shall be entitled to charge and collect a
a condition precedent to the issuance of
to exceed Twenty-five and No/100 Dollars
reasonable fee for and aS0J
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10.17 No Defenses or Offsets. All Assessments shall be paya~e
in full and at the times due. No defenses or offsets against the
payment of such amount shall be permitted for any rea~n
whatsoever, including, without limitation, any claim by an OWU2r--
that (i) the Association is not properly exercising its rights ~d--
powers or performing or discharging its duties and obligationsfasCJ
provided in this Declaration or its By-Laws; (ii) an Owner and hisCJ
family has made or elected to make no use of the Common Property;
(iii) the Owner and his family have otherwise waived or elected to
waive their membership in the Association; or (iv) the Association
has suspended the right, privilege and easement of such Owner and
his family to use the Common Property as provided in Section 9.5 of
this Declaration.
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.
ARTICLE XI
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 o~ 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
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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
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 to
a particular Lot, be entitled to bring an action in the Circuit
Court of the Eighteenth Judicial Circuit in and for the County to
foreclose the lien of the Association for delinquent Assessments
evidenced by such Claim of Lien in the same manner as mortgage
liens are foreclosed. Any judicial sale pursuant to such
foreclosure action shall be conducted as ordered by the Court or in
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.
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 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 Judament 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
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11.6 Remedies Cumulative. The remedies herein provided for~
the collection and enforcement of Assessments and the foreclosurePl
of the lien therefor shall be cumulative and not alternative; itg
being expressly provided that any suits brought for the collection~
of assessments against the Owner personally obligated and liabler
for the payment of the same and for the foreclosure of the lien
herein provided against the Lot invol ved may be bro11ght
simultaneously as separate counts in the same action.
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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 to the Lot with
respect to which a Claim of Lien has been recorded, the President,
Vice President, Secretary, Treasurer or other officer of the
Association thereunto duly authorized, or the attorney for the
Association, shall cause an appropriate release of such Claim of
Lien to be fi led and recorded among the Public 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/lOO
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.
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 thi s
Declaration, including, without limitation, such duties and powers
41
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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. ~
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12.3 Duties of Association. The Association, acting by an~
through its Board of Directors, shall, in addition to those genera~
and specific duties, responsibilities and obligations imposed upo~
it by law and those specified in its Articles of Incorporation an~
By-Laws, have the following specific duties, responsibilities an~
obligations: r-
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12.3.1 Payment of Cornmon 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.
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 Cornmon Expenses or otherwise conduct the business and
affairs of the Association.
12.3.3 Other Services. To provide and perform such
other services and tasks, the responsibility for which has been
expressly or impliedly delegated to the Association pursuant to
this Declaration.
12.3.4 Insurance. Subject to the Board'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 Cornmon Property and, consistent with
their respective duties, responsibi Ii ties and liabi Ii ties,
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 The Reserve at
Tuscawilla. To preserve, protect, maintain and enhance the
appearance and natural beauty of the Common Property and The
Reserve at Tuscawilla Community 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 .The Reserve at Tuscawilla and The Reserve at
Tuscawilla Community generally; provided, however, that the
Association shall be and hereby is specifically prohibi ted from
42
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engaging in any political activity or any other activity
whereby its status as a corporation not-for-profi t or its
exemption from Federal or state income taxation, if any, shall
be forfeited or.jeopardized.
12.3.7 Establish and Enforce Rules and Requlations.
To make, establish, promulgate and publish, and to enforce such
rules and regulations for the protection and governing the use ~
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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.
12.3.9 Ot>erate Without Profit. To operate without
profit for the sole and exclusive benefit of its members and
The Reserve at Tuscawilla Community.
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
following specific powers:
12.4.1 Own and Deal with Common Property. Except as
may be limited by the terms of this Declaration and the
Articles of Incorporation and By-Laws of the Association, to
acquire, own, hold, control, administer, manage, operate,
regulate, care for, maintain, repair, replace, restore,
preserve, protect, buy, sell, lease, transfer, convey, encumber
or otherwise deal in or with real or personal property, (or any
interest thp.rein, including easements) which is, or upon its
acquisition by the Association shall thereupon become, Common
Property as defined in this Declaration.
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
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assure the avai labi Ii ty of funds necessary for the care tn
maintenance, repair, replacement, restoration, preservation~
and protection of all Common Property, including all easement~
and facilities, and for such other purposes as the Board o~
Directors of the Association, in its reasonable discretio~
shall be deemed necessary or appropriate. n
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12.4.4 Sue and Be Sued. To sue and be sued and t~
defend any suits brought against it. r
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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, respon~ibilities 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 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 subject to the provisions of Section 12.5 of
this Declaration.
12.4.7
Intentionally Blank
12.4.8 Provide Public or Quasi Public Services.
Subject to the rights of the City under any applicable
franchise agreement, to itself provide equipment, facilities
and personnel, or to contract with an independent contractor or
independent contractors, for such public or quasi public
services as may be deemed by the Association to be reasonably
necessary or desirable for the common health, safety and
general welfare of the residents of The Reserve at Tuscawilla
and The Reserve at Tuscawilla Community generally, including,
without limitation, internal security and protection services,
garbage and trash pickup and disposal services, cable
t~levision services and street lighting services.
44
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12.4.9 Enforce Declaration. To take such steps as m~
be necessary to enforce the provisions of this Declaratio~
including, without limitation the employment of counsel and tm;.
institution and prosecution of litigation to enforce t~
provisions of this Declaration including, without limitatio~
such litigation as may be necessary to collect assessments an~
foreclose liens for which provisions are made in th~
Declaration. .
12.4.10 Surface Water or Stormwater Manaqement 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
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
provides for and permits early cancellation by the insured.
(b) Pledqe of Assessment Riqhts. The borrowing of any
funds secured by a pledge, assignment or encumbrance of the right
and duty of the Association to exercise its power to establish,
make levy, impose, enforce and collect any Assessments for which
provision is made in this Declaration whereby as a result of such
pledge, assignment or encumbrance such right and power of
assessment may be exercised by a party other than the Association
or whereby the Association shall become obligated to establish,
levy, enforce and collect any Assessment or Assessments in a
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particular amount or within a particular time so as to effectively .~
divert from the Association and its Board of Directors the right, Co
duty and discretion to establish, make, levy, impose, enforce ~ ~
collect Assessments in such amounts and within such time periods ~ ~
the Board of Directors of the Association, in its discretion, sha~
deem to be necessary and reasonable. It is expressly provide~,
however, that the foregoing limitation and restriction upon t~
pledge, assignment or encumbrance of the assessment rights here~
contained shall not preclude the Association from pledging 6,f
making an assignment of or otherwise encumbering any Assessme~ Cj
which is then payable to or which will thereafter, in the ordinary -4
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 PropertYi
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. Further, upon the request of Developer, 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 The Reserve at
Tuscawilla 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
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.
(d) 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 prohibi tedi provided, however, that nothing herein
contained shall preclude the Association from reimbursing any such
elected director or officer for reasonable expenses actually
incurred and paid by any such elected director or officer in the
conduct of the business and affairs of the Association; and
provided, further, that nothing herein contained shall preclude the
employment by the Association and payment of compensation to a
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
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13.1 Membership. Every Owner shall automatically a~
mandatorily be a member of the Association upon becoming an Owne~
Additionally, Developer shall automatically and mandatorily be ~
member of the Association. Membership may not be refused, waiv~
or surrendered, but a member's voting rights and use and enjoyment
of the Common Property may be regulated or suspended as provided ~.
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
prohibi ted transfer of membership, however, shall be void and of no
force and effect and wi 11 not be reflected upon the books and
records of the Association.
13.3 Members' Riqhts. The rights of every member of the
Association shall be subject 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 Votinq Riqhts. 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
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 Classes of Votinq Membership: Number of Votes. The
Association shall have two (2) classes of voting membership as
follows:
13.6.1 Class A. Class A members shall be all Owners
of Lots, with the exception of Developer, unti 1 Class B
membership h~s been converted to Class A membership, as
provided in Subsection 13.6.2 of this Declaration and in the
Articles of Incorporation of the Association, and after such
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conversion all Owners of Lots classified '5 Residentia~
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Property shall be Class A members. Class A members shall b~
entitled to one (1) vote for each Lot in which they hold th~
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 anotheP
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 wri tten 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 D~veloper 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, the Reserve
at Tuscawilla may be developed in phases, with the recordation
of more than one (1) plat affecting the Subject Property.
Developer intends to develop ninety-two (92) Lots in the
Subject Property, and effective as of the date of this
Declaration Developer shall have three (3) Class B votes for
each of such ninety-two (92) Lots, regardless of whether any or
all of such Lots have been included in a recorded plat of all
or a portion of the Subject Property at the time this
Declaration is recorded. Further, in the event that the plats
of the Subject Property create more than ninety-two (92) Lots,
Developer shall also have three (3) Class B votes for each Lot
in excess of ,the original estimate of ninety-two (92) Lots,
from the date of recordation of the plat(s) which incorporate
the increase in the number of Lots.
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13.8 Approval by Members. . Unless elsewhere otherwise~
specifically provided in this Declaration or the Articles of;2
Incorporation or By-Laws of the Association, any provision of thisrrl
Declaration of the Articles of Incorporation and By-Laws of theg
Association which requires the vote or approval of a majority or.
other specified fraction or percentage of the total voting power of ~
the Association shall be deemed satisfied by either, both or a"
combination of the following:
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(a) The vote in person or by proxy of the majority or
other specified fraction or percentage of the total voting
power of the Association at a meeting duly called and noticed
pursuant to the provisions of the By-Laws of the Association
dealing with annual or special meetings of the members of the
Association.
(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
hereinafr.er specified:
14.1.1 Utilitv 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 utili ty services to the Subject Property and their
respective successors and assigns a non-exclusive easement for
utility purposes over, under, within and upon the Common
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 uti Ii ty lines, systems and
facilities from time to time located therein or thereon. The
utilities contemplated to be served by such utility easements
shall include, without limitation, those providing electric
power, natural gas, telephone, potable water, sanitary sewer,
cable telp.vision, and other underground electronic services.
49
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14.1.2 Drainaqe Easements. There is hereby created,
declared and reserved for the benefit of Developer, the Cit~
the Association and all Owners a non-exclusive easement f~
storm water collection, retention, detention and draina~
under, over, upon and within all drainage easements, ponds a~
tracts shown on the Plat or otherwise reserved, declared aD
created pursuant to this Declaration, together wi th an easeme~
and license in favor of the Developer, the City and tlie
Association only to enter upon such areas for the purposes ~
constructing, installing, inspecting, maintaining, repairing
and replacing any and all storm water drainage systems,
improvements and facilities from time to time located therein
or thereon. Addi tionally, Developer, for the benefit of
itself, the City, the Association and all Owners hereby
reserves easements over any and all other portions of the
Subject Property as may be reasonably required from time to
time in order to provide storm water drainage to all or any
portions of the Subject Property; provided, however, that any
such additional 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 wi thin 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 condition 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.
14.1.3
Intentionally Blank .
14.1.4, Wall and Landscaoe Easements. There is hereby
created, declared, granted and reserved for the benefit of
Developer and the Association an easement over and upon all
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wall and landscape easement areas shown on the Plat together
wi th the easement and license to enter upon such Wall and
Landscape Easement areas for the purposes of erecting,~
constructing, installing, iIlspecting I maintaining I repairing~
and replacing any and all 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. 0
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14.1.5 Landscape Easements. There is hereby created, r
declared, granted and reserved for the benefit of Developer and
the Association an easement for landscaping purposes over and
upon all landscape easement areas, entry-ways, medians, and
landscape buffers shown on the Plat, if any, or hereafter
declared by Developer, together with the easement and license
to enter upon such areas for the purposes of installing,
maintaining, inspecting, repairing and replacing any and all
landscaping, including trees, grasses, shrubs, bushes, ground
covers and other plant materials and irrigation systems of any
kind, whether the same shall be required by the City and/or
deemed necessary or desirable by Developer or the Association.
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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 perpetui ty, 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
subjected 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.
(a) Any acti vi ty 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 m?terial 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
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land or water area to remain predominantly in its natural
condition, (vi) activities detrimental to drainage, flood
control, water conservation, erosion control, so~
conservation, or fish and wildlife habitat preservation, (vi~
acts or uses detrimental to such retention of land or wat~
areas, (viii) acts or uses detrimental to the preservation or
the structural integrity or physical appearance of sites dP
properties of historical, architectural, archaeological, ~
cultural significance.
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(b) Developer reserves unto itself, and its successors
and assigns, all rights accruing from its ownership of the
lands subjected to the Conservation Easements, including the
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, condominiums,
cooperative or similar association now or hereafter formed wi th
respect to any adjoining lands, or (iii) any association, non-
profi t corporation, trust, or other organization that maintains
similar preservation areas in the Tuscawilla development, or
(i v) any combination of the foregoing. Developer, however, may
not extend any benefit to the general public, including any
right of entry or access. Such easements may be terminated
only by (i) the taking by a governmental entity of 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.
(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 City 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 District: (i) to enter upon
and inspect the lands subjected to the Conservation Easements
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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,z
and require the restoration of areas or features of the land~
subjected to the Conservation Easements that may be damaged b~
any activity inconsistent with the Conservation Easements. g
.
(f) The District may enforce the terms of this paragrap~
14.1.6 at its discretion, but if Developer breaches any term of
this Paragraph 14.1.6 and the District does not exercise its
rights hereunder, the District's forbearance shall not be
construed to be a waiver by the District of such term, or of
any subsequent breach of the same, or any other term hereof, or
of any of the District's rights hereunder. No delay or
omission by the District in the exercise of any right or remedy
upon any breach by Developer shall impair such right or remedy
or be construed as a waiver. The District shall not be
obligated to Developer, or to any other person or entity, to
enforce the provisions of this Paragraph 14.1.6.
(g) As to the District only, Developer will assume all
liability for any injury or damage to the person or property of
third parties which may occur on the lands subjected to the
Conservation Easements. Neither Developer, nor any person or
entity claiming by or through Developer, shall hold the
District and the City liable for any damage or injury to person
or personal property which may occur on the lands subjected to
Conservation Easements.
(h) Nothing contained herein shall be construed to
entitle the District to bring any action against Developer for
any injury to or change in said lands resulting from natural
causes beyond Developer's control, including, wi thout
limitation, fire, flood, storm and earth movement, or from any
necessary action taken by Developer under emergency conditions
to prevent, abate or mitigate significant injury to the
aforesaid lands resulting from such causes.
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 The Reserve
at Tuscawilla, 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
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which and from which Developer and its authorized agents and
representatives and approved builders and building contractorsl~
may engage in marketing and information activities on aco
temporary basis during the period of the development of ~d~
construction within The Reserve at Tuscawilla, provid~,~
however, that such acti vi ties shall be conducted from ~d
within buildings constructed as single family residentMl
dwellings which are temporarily used for such activities ~d
which are thereafter to be used and occupied as single fam~y--
residential dwellings. The location of such model centeifs--
within The Reserve at Tuscawilla may be changed from time !to-
time by Developer, in its sole and absolute discretion. ~
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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 Subject 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 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
Developer, the city, the Association, the Owners and their
invitees, licensees and guests a non-exclusive easement for
vehicular and pedestrian ingress and egress through the Subj ect
Property over the Common Streets and Roads, and to Developer
and the Association for the purpose of constructing,
installing, inspecting, maintaining, preparing and replacing
from time to time any and all roadway facilities and
landscaping from time to time located or to be located thereon.
It is expressly provided that the rights-of-way over the Common
Streets and Roads are not hereby dedicated to the public and
are specifically declared, created and reserved as private
street rights-of-way and easements for the benefit only of the
Subject Property and only to and for the benefit of those
persons or entities 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 become 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.
54
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14.2 Future Easements. There is hereby reserved to Developer
and its successors and assigns, together with the right to grantr~
and transfer the same, the right, power and privilege to, at iCO
time hereafter, grant to itself, the Association, the City, or a _ Gn
other parties such other further and additional easements as may _ ~
reasonably necessary or desirable, in the sole opinion and with$n
the sole discretion of Developer, subject to the reasonab~
approval of the city, for the future orderly development of T~
Reserve at Tuscawilla in accordance with the objects and purpos~
set forth in this Declaration. Any such easement (s) shall ?i
recorded in the Publ ic Records of the County. It is expressly 0"\
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 The Reserve at Tuscawilla 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 of the Subject
Property over which any such further or additional easement is
granted or required.
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ARTICLE XV
ARCHITECTURAL AND LANDSCAPE CONTROL
15.1 Reservation of Architectural and Landscape Control. In
order to ensure that the development of The Reserve at Tuscawilla
will proceed pursuant to a uniform plan of development and
construction and in accordance with consistent architectural,
ecological, environmental and aesthetic standards which are
designed and calculated to bring about the achievement and creation
of, and to thereafter maintain, preserve and protect, The Reserve
at Tuscawilla as a pleasant, attractive and harmonious physical
environment, Developer shall have and hereby reserves exclusively
unto itself, for the duration hereinafter 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.
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
55
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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 pleas~e~
of, the Board. The Board from time to time may designae W
alternative members, to serve in the absence of any regular memb~.
Architectural Review Board members need not be Owners, Directors~f
the Association or Association members. No Architectural Rev~w
Board member is entitled to compensation for services perform~; __
but the Board may employ independent professional advisors to tije--
Archi tectural Review Board and allow reasonable compensation rto -
such advisors from Association funds. Any Architectural Review-.J
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 Revi~w 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 desirabi Ii ty 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 desirability
of the Subject Property as a first-class residential community.
The Architectural Review Board's authority includes any matter
affecting the exterior appearance of Lots and requiring approval by
the Association under Article VII or the Design Standards Manual.
15.4 Architectural 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.
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
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buildings and topography within the Subject 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, ~ C.Jl
Articles of Incorporation, and the By-Laws; and (iv) otherwise ~ ~
in the best interests of all Owners in maintaining the value ~
desirability of the Subject Property as a residential communit~
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15.6 Rules and Reaulations. The Architectural Review Bo~__
from time to time may adopt and amend reasonable, uniform rules ~d--
regulations as to all matters within the scope of its authority, __
including procedural matters, and may adopt and amend a Design CO
Standards Manual at any time and from time to time, with any such
adoption or amendment to be within 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 Judament. 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, mi stake, or deliberate, intentional di scrimination 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
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
Architectural Review Board action must be evaluated on its own
meri ts, with the Archi tectural Review Board exerci sing the broadest
discretionary judgment that is consistent with the requirements of
this Declaration.
15.8 Review. The Architectural Review Board from time to time
may appoint one or more persons to make preliminary review of any
applications and report such applications with such person's
advisory recommendations for Architectural Review Board action.
After the Developer gives up control of the Architectural Review
Board, the Architectural Review Board's procedures for review and
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enforcement of the provisions of this Article in all events and a~n
all times must provide any affected person with reasonable advanc~
notice and a reasonable opportunity to be heard in person ana,:;
through appropriate representatives of such person's choosing in ~
reasonably impartial manner. ~
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15.9 A~plications. Any applications for Architectural Revie~
Board approval must be accompanied by three (3) sets of plans a~
specifications, together wi th such renderings, samples, models, arrd
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 ei ther 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 entitled to
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 fails
to notify the applicant of its intent to deny an application, or
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that further information is required, within fourteen (14) days
after receipt of an application, as provided in Section 15.10. In
all other events, the Architectural Review Board's approval must be
in writing and endorsed upon two (2) sets of the plans anrl~
specifications, one of which must be returned to the applicant an~
one retained in the Association's permanent records for a period o:f:z:
two (2) years. Upon completion of the approved work, the applican~
and any architect, engineer, contractor, or other reasonabl~
professional must certify to the Association in writing that th~
work has been completed substantially according to the approve~
plans and specifications; and no Statute of Limitations begins t~
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 Chancres. 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 time value was
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
59
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any residential dwelling or any of its appurtenances constructed by
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Developer on any Lot as part of the development of The Reserve atm
Tuscawilla, so long as it otherwise conforms to the applicable...:S..
requirements of this Declaration, including the Design Standards~
Manual. The foregoing exemption is for the exclusive benefit of.
Developer and may not be extended by Developer to any building or~
any Owner other than Developer. 0
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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 wi th 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
app licable 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, director, employee
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.
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ARTICLE XVI
AMENDMENT ~
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16.1 Amendment by Developer. Subject to the provisions Of~
Section 16.5 of this Declaration until Developer no longer holds an c>
ownership interest in any Lot or other lands within the Subject~
Property, the terms and provisions of and the covenants, n
conditions, restrictions, easements and reservations set forth inP
this Declaration may be changed, amended or modified from time to~
time by Developer in its sole, but reasonable discretion, and'
without requiring the joinder or consent of any person or party
whomsoever, including wi thout limitation, the City, the Association
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
Associationj 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,
or both, as may from time to time be required pursuant to the
provisions of thi~ 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.
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16.5 Limitations on Amendments. Notwithstanding anything t~
the contrary set forth in this Declaration, the rights of Develop~
and/or the Association to change, amend or modify the terms aci%
provisions of and the covenants, conditions, restrictions~
easements and reservations set forth in this Declaration shall a~
all times be subject to and limited and restricted as follows, tg
wit:
(a) This Declaration shall
the rules, laws, ordinances and codes
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at all times be subject to
of the city.
(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) To the extent that any term or provision of this
Declaration may be included herein in, satisfaction of any
conditions to approval of the Land Use Plan for the Tuscawilla PUD,
as any conditions to approval may, from time to time, be changed,
amended or modified by the City pursuant to appropriate law or by
action of the City, such terms or provisions of this Declaration
shall not be changed, amended, or modified or otherwise deleted or
eliminated from this Declaration without the prior written consent
and joinder of the city.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
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(h) This Declaration may not be changed, amended or
modified in such fashion as to change, amend, modify, eliminate or
delete the provi sions of thi s Section 16.5 of thi s Declarati<f<<
without the prior written consent and joinder of Developer, in a~
case, and to the extent of any proposed change, amendment ~
modification which shall affect the rights of the City or the S~
Johns Water Management District hereunder, the same shall requi~
the written consent and joinder of the City or the st. Johns RiveD
Water Management District, as the case may be. ~
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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 of
any portion of the Subject Property and their respective successors
and assigns and all other persons, parties or legal entities having
or claiming any right, title or interest in the Subject Property,
by, through or under any of them, for a period of sixty (60) years
from the date this Declaration is recorded among the Public Records
of the County, after which time this Declaration and the covenants,
conditions, restrictions and reservations set forth herein, as the
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
p 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
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18.1 Parties Entitled to Enforce. Subject to the provision~
of Section 18.2 of this Declaration, the terms, provisionsr
covenants, conditions, restrictions, easements and reservations set'"'
forth in this Declaration, as changed, amended or modified fro~
time to time, shall be enforceable by Developer, the Associatio~
and/or any Owner whose membership privileges in the Associatio~
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
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) enjoin 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 account
of any such violation or attempted violation or default or
attempted default and (d) recover costs and expenses, including
attorneys' and paralegals' fees and costs, incurred in connection
with the enforcement of this Declaration. The St. Johns River
Water Management District shall have the right to enforce, by a
proceeding at law or in equity, the provisions contained in this
Declaration which relate to the maintenance, operation and repair
of the surface water or stormwater management system.
18.2 Limitations on Enforcement Rights. Notwithstanding the
foregoing provi sions of Section 18.1 of thi s 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 bv 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
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commence enforcement of such provisions within thirty (30) days i~
following written demand to do so from any Owner, any Owner wOo 00
makes such demand and who otherwise has standing to do so, sha~ un
have the right to enforce the provisions of said Article X~ c..v
provided, however, that such right of enforcement shall not inclu~
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 express~
conferred pursuant to this Declaration. ? ~
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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 n~fault or attempted default of the same, the
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
equi ty against a nuisance, either public or private, shall be
applicable against every such result, and may be exerci sed by
Developer, the Association or any Owner.
18.7 Cumulative Riqhts 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.
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18.9 Exculpation. Developer, the Association, t~
Architectural Review Board, and the individual members, officer~
directors, employees or agents of any of them, shall not, joint~
or severally, be liable or accountable in damages or otherwise ~
any Owner or other party affected by this Declaration, or to anyo~
submitting plans or other materials for any required consent ~
approval hereunder, by reason or on account of any decisiorf?
approval or disapproval required to be made, given or obtained
pursuant to the provisions of this Declaration, or for any mistaue
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
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 Constructive 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 any
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
Declaration (including those matters set forth in the Design
Standards Manual), whether or not any reference to this Declaration
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.
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 entity
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.
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19.3 Governina 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. ~
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19.4 Construction. The provisions of this Declaration shal~
be liberally construed so as to effectuate and carry out th~
objects and purposes specified in Article II of this Declaration~
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19.5 Article and Section Headinas. Article and Sectio~
headings contained in the Declaration are for convenience anct"'
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.
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19.6 Sinqular Includes Plural, Etc. Whenever the context of
this Declaration reasonably requires the same, the singular shall
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.
19.8 Notice. Any notice required or permitted to be given
pursuant to the provisions of this Declaration shall be in writing
and shall be delivered as follows:
(a) Notice to an Owner shall be deemed to have been
properly delivered when delivered to the Owner's Lot, whether said
Owner personally receives said notice or not, or placed in the
first class United States mail, postage prepaid, to the most recent
address furnished by such Owner in writing to the Association for
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 the Association shall be deemed to have
been pr~perly delivered upon receipt at the address furnished by
the Association or to the address of its principal place of
business.
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(c) Notice to Developer shall be deemed to have been t-v
properly delivered upon receipt at the Developer's address which <hs CO
4830 West Kennedy Boulevard, Suite 740, Tampa, Florida 33609. ~ ~~
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(d) The affidavit of an officer or authorized agent ~
the Association declaring under penalty of perjury that a noti~
has been properly mailed to any Owner or Owners to the address or
addresses shown on the records of the Association, shall be deemi5
conclusive proof of such mailing, whether or not such notices afi ~
actually received. uo
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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.
19.10 Assiqrunent of Developer's Riqhts 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.
19.11 No Warranties. This Declaration is made for the objects
and purposes set forth in Article I I 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 covenants, conditions,
restrictions, easements and reservations set forth in this
Declaration, or as to the compliance of any of the same with public
laws, ordinances and regulations applicable thereto.
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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.
Witnesses:
RICHLAND TUSCAWILLA, LTD.,
a Florida limited partnership
By:
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Print Na : WI6HT, 'TN#-
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Print Name: g,~( e.."A the.~t>^
Richland
Florida
partner
Management,
corporation,
STATE OF \=""\oc-,dCL-
COUNTY OF rXQ rse .
The foregoing instrument was acknow,ledged before me this ~.
day of ~~ 199~ by S~,,'\LL<\ K~ ~S~ ,
the y~r ",. 'p~' of Richland Management, Inc., a Florida
corporation, on behalf of the corporation as general partner of
Richland Tuscawilla, Ltd., a Florida limited partnership. Hc/aho
is personally known to me or haD ~roducQd
as id"nH~.~.:.al.iUU dud who <lidfdid nQ60t t:: ;~oath~' ,~'
..~~\ OFFICIAL SEAL _7RLett:Z.:..- __
I ~ BARBARA CARTAS
, i My Commission ExpIres Signature of erson Taking
\......___ j May 23.1997 Acknowledgment
Notary ~ .+i Comm. No. CC 275104 Print Name :
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Title: Notary Public
Serial No. (if any)
Commission Expires:
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JOINDER OF MORTGAQEE
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The undersigned, on behalf of AmSouth Bank of E'loridal r
Florida banking c::orpo3:'ation, f/k/a Fortune Bank A Savings Bank (th~
"Lender") being the owner and holder of (1) that certain Mortqa9~
and Security Agreement e~ecuted May 31, 1994, by Richlan~
Tuscawillal Ltd., reoorded on June 16, 1994, in Official Records-
Book 2786, at Page 0648, (ii) that certain Collateral Assignment of
Leases, Rents and Contract Rights executed May 31, 1994 by Richland
Tuscawilla, Ltd., recorded on June 16, 1994 in Offic::ial Records
Book 2786, pa.ge 0670, and (iii) that certain UCC-1 Financing
Statement recorded June 161 1994 in Official Records Book 2786,
Page 0682, all of the Public Records of Seminole County, Florida.
The aforesaid loan documents are collectively referred to in this
Joinder aa the "Security Documents." The Lender hereby joins in
the execution of the w1th1n and foregoing Declaration of Covenants,
Conditions, Easements and Restrictions for the Reserve at
Ttu5cawilla (the "Declaration") ~or the express purpose of
manifesting its agreement with and consent to the recordation of
the Declaration and for the further purpose of subordinating, and
it does hereby subordinate, the lien and encwubrance of the
Securi ty Documents to each and everyone of the covenants,
conditions, rQstrictions, easements and reservation. set forth in
the Declaration.
IN WITNESS WHEREOF, the Lender has caused these present to bQ
execute~by ita undersi~ed officer thereunto duly authorized on
this~ day of Oa-,-rPb~ , 1994.
Witnesses:
AMSOU'XH BANK OF FLORIDA, a
Florida bankinq corporation,
I!'ortune Bank A Savings
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STATE OF FLORIDA
COUNTY OF P /)/.c LL45
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The foregoinq instrumen~ was acknowl~dqed before me this~O~
day ofCl~~po~ I 1994 by ~r~&eY L. ~..s-4 I then
~/or J//~.e- /?~/d'e.n"- of AMSOUTH BANK OF FLORIDA, a Florida banking ~
corporation, ~k/a Fortune Bank A Savings, on behalf of the bank. ~
~She/They 6/are {pe:t'J:lonally known to meJ or hasjhave produced'
as identification.
Notary stamp
~~/.~~
iqnature of Per~n Takinq
Ac:knowledgm~nt ;Z:
PrintName=....);a....~ E. De. ~r'l
Title: Notary Public
Serial No. (if any)
Commission Expires:
....:;.tf"", SANDRA E. DEJOFlDY
f.:f~ ~~ M'I COMMISSION' CC253595 EXPIRES
~'~'1i JanuIlY 18. 1997
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THE RESERVE AT TUSCA WILLA - PHASE I
'" That part of Lots 5, 6, 7 and 8 of Section 6, Township 21 South, Range 31 East, Seminolc ~
County, Florida of the MAP OF PHILLIP R. YONGE GRANT, recorded in Plat Book 1, Pages 3:
35 tlu,-ough 38 of the Public Records of Seminole County, Floridn, lying South of State Road 43425
(old S.1\. 419), North of the Lake Charm Branch ofthc Seal?oard Coast Line Railroad, West of ~
the centerline of Howell Creek and East of GARDEN A FARMS, TOWN SITES, recorded ill g
Plat Book 6, Page 39 of the Public Records of Scminole County, Florida. :."
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More particularly described as follows:
Commence at the Southeast corner of Block "D", GARDENA FARMS, TOWN SITES, as
recorded in Plat Book 6, Pnge 39 of thc Public Records of Seminole County, Florida; thence run
N 00005'36" E, along the Easterly line of Block "D" and Block "A" ofs~1id GARDENA
, FARMS, TOWN SITES, a distance of 81 0.63 feet to the Southerly right of way line of Florida
State Road # 434 (old State Road # 419); thence run N 88028'22" E, along said right of way
line, a distance of960.38 feet to the Point of Beginning; thence continuc N 88028'22" E,
along said right of way line, a distance of 572.83 fcet to a point of curvature of a curve concave
Southerly, having a radius of 32204.07 [eet and a central angle of 01,003.'51", nm Easterly,
along the arc of said curve, 598.13 fect to the point of tangency; thence run N 89032'13" E, a
distance of250 feet more or less to the centerline of Howell Creek; thence run 2600 feet more or
less, along said centerline of Howell Creck to a point on the North right of way line of the Lake
Charm Branch of the Seaboard Coastline Railroad per right of way mnjJ if. r.30-fla., sheets 4 and
4a; thence run S 88055107" W, along said North right of way line, a distance of 778.5 feet
more or less to a point of curvature of a curve concave Northeasterly, having a radius of 1862.70
feet and a 'central angle of22046'33'\ thence run Westerly, along the arc of said curve,
740.45 feet to a point of intersection with a non-tangent line; thence run N 20027'50" E, a
distance of 55.0 1 feet to the point of curvature of a curve concave West, having a radius of 60.00
feet and a central angle of 580 38'0911, thence run North, along the arc of said curve, 61.40
feet to the point of tangency; thence run N 380 10'19" W, a distance of 218.19 feet to the
point of curvature of a curve concave East, having a radius of251.65 feet and a central angle of
6101413911, thence run North, along the arc of said curve, 268.99 feet to a point of
intersection with a non-tangent line; thence run N 80038'03" W, a distance of 108.44 feet;
thence run N 5403413711 W, a distance of280.22 feet; thence run S 83026'31" E, a
distance of284.40 feet; thence run N 88028'22" E a distance of245.23 to a point on a non-
tangent curve concave Northwest, having a radius of283.64 feet and a central angle of
38022'44"; thence from a tangent bearing of N 67000'35" E,run Northerly, along the arc
of said curve, 190.00 feet to a point of compound curvature of a curve concave West, having a
radius of25.00 feet and a central angle of 103045'40", thence run Northwest, along the arc of
said curve, 45.27 feet to a point of intersection with a non-tangent line; thence run N
18020'2311 E a distance of 69.13 to a point on a non-tangent curvc concave North west, having
a radius of25.00 fect :md ~ ccntr:11 ang].: ')[9300.1'1111; lhcnce f:'C:11 a tangent bcnrillg cf H
75007'49" E, run Northeasterly, along the arc of said curve, 42.79 feet to a point of
compound curvature of a curve concave West, having a radius of 381.18 feet and a central migle
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of22o 12'05", thcnce run North, along the arc of said curve, 147,70 feet to a point of
intersection with a non-tangent linc; thence run S 88028'22" W a distance of 154.19 feet;
.. thence run N 01031'3811 W a distance of350.00 feet to the Point of Begitming.
Contains 53.056 acres more or less.
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This instrument prepared by and
after recording return to:
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Robert M. Poppell, Esq.
Akerman, Senterfitt & Eidson, P.A.
255 South Orange Avenue, Suite 1700
Orlando. Florida 32801
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AMENDMENT TO DECLARATION
OF COVENANTS, CONDITIONS, EASEMENTS AND RESTRICTIONS
FOR THE RESERVE AT TUSCAWILLA AND
GRANT OF EASEMENT
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THIS AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS,
EASEMENTS AND RESTRICTIONS FOR THE RESERVE AT TUSCAWILLA AND GRANT
OF EASEMENT (this "Amendment") is made this / 3 ~ day of August,
1999, by RICHLAND TUSCAW I LLA, LTD., a Florida limited partnership,
whose address is One Urban Center, 4830 West Kennedy Boulevard,
Suite 740, Tampa, Florida 33609, hereinafter referred to as the
"Developer".
RECITALS
A. Developer is the developer of a certain tract of land
located in Seminole County, Florida, commonly known and referred to
as The Reserve at Tuscawilla and sometimes herein referred to as
the "Reserve Development."
B. Developer has heretofore placed of Public Record that
certain Declaration of Covenants, Conditions, Easements and
Restrictions for The Reserve at Tuscawilla, recorded at Official
Records Book 2853, Page lOSS, as supplemented and amended by that
certain Supplemental Declaration and Amendment of Covenants,
Conditions and Restrictions for The Reserve at Tuscawilla, recorded
at Official Records Book 2999, Page 0018, each of the Public
Records of Seminole County, Florida, hereinafter collectively
referred to as the "Declaration."
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C. The Declaration encumbers and benefits those portions of
the Reserve Development known as (i) The Reserve at Tuscawilla,
Phase I (" Phase I"), according to the plat thereof recorded in Plat
Book 48, Pages 31 through 40, inclusive, Public Records of Seminole
County, Florida ("Phase I Plat"), and (ii) The Reserve at
Tuscawilla, Phase II ("Phase II"), according to the plat thereof
recorded in Plat Book 50, Pages 3 through 9, inclusive, Public
Records of Seminole County, Florida (" Phase II Plat"), which
properties are collectively referred to in the Declaration as the
"Subject Property" or "The Reserve at Tuscawilla."
D. Developer is the current fee simple owner of that portion
of "Tract E" of Phase I more particularly described on Exhibit "A"
attached hereto and, by this reference, hereby incorporated herein
("Developable Creek Front Property").
E. The Developable Creek Front Property is included within
the Subject Property as part of Phase I, but was not initially
planned for development into Lots due to the need to plan for
certain "Floodway Encroachments" (as defined below) associated with
any development of the Developable Creek Front Property.
F. Developer has now received all necessary approvals to
replat and develop the Deyelopable Creek Front Property into
single-family, residential lots ("Creek Front Lots") as part of the
Reserve at Tuscawilla, together with certain common areas and
improvements for the benefit of the Owners, all as are, or will be,
reflected in the replat of the Developable Creek Front Property
pursuant to the plat of The Reserve at Tuscawilla Phase I-A as, or
to be, recorded in the Public Records of Seminole County, Florida
("Phase I-A Replat") .
G. In connection with the development of the Creek Front
Lots as part of The Reserve at Tuscawilla, Developer desires to
amend the Declaration to (i) provide in favor of the Association an
easement for purposes of fulfilling its monitoring and maintenance
obligations arising pursuant to the "Floodway
Monitoring/Maintenance Plan" (as defined below) as required by the
City and (ii) impose upon the Association an obligation to contract
with a qualified, licensed engineering firm to fulfill the
foregoing monitoring and maintenance obligations.
H.
Developer
Pursuant to Article XVI, Section 16.1 of the Declaration,
retained the right to change, amend or modify the
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Declaration without the joinder or consent of any person or parties
whomsoever.
NOW, THEREFORE, Developer, for itself and its successors and
assigns, by the execution and recording in the Public Records of
Seminole County of this Amendment, does hereby declare that the
Declaration shall be amended as provided herein.
1. Recitals. The foregoing recitals are true and correct
and, by this reference, are hereby incorporated into this
Amendment.
2. Defined Terms. All capitalized terms used in this
Amendment shall have the same meanings given to such terms in the
Declaration, unless otherwise amended or indicated to the contrary
in this Amendment. From and after the date of execution of this
Amendment, any and all references to the Declaration shall be
deemed to refer to the Declaration as amended by this Amendment.
The Declaration and this Amendment are sometimes hereinafter
collectively referred to as the "Declaration."
3. Ap?licability of Declaration to Developable Creek Front
Property. Notwithstanding the replatting of the Developable Creek
Front Property pursuant to the Phase I-A Replat, the Developable
Creek Front Property shall remain subject to the scheme, coverage
and operative effect of, and shall continue to be held, transferred
and conveyed and occupied subj ect to the covenants and restrictions
contained in, the Declaration to the same extent as if the Creek
Front Lots and all common areas, drainage easements, conservation
easements, improvements and other matters depicted on the Phase I-A
Replat were depicted on the Phase I Plat. Further in this regard,
from and after the recording of the Phase I-A Replat, and
notwithstanding such replatting of the Developable Creek Front
Property, the definition of the Subject Property shall continue to
include the Developable Creek Front Property for all intents and
purposes under the Declaration, and the definition of all terms
used in the Declaration the meanings of which are dependent,
directly or indirectly, upon the definition of the Subject
Property, including, without limitation, the definition of the
terms "Plat," "The Reserve at Tuscawilla" or "The Reserve at
Tuscawilla Community," "Common Property," "Lot(s)," "Owner, II
"Drainage Easement," "Conservation Easement" and "Surface or
Stormwater Management System," shall be deemed to include the
Developable Creek Front Property, all subdivisions thereof and
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improvements constructed thereon or in connection therewith and
other matters depicted on the Phase I-A Replat.
4. Creek Front Lots Drainaqe Easement and Swale SYstem.
Each Creek Front Lot shall have a creek front swale comprising a
part of the Surface Water Management System for The Reserve at
Tuscawilla designed and constructed to prevent direct surface
stormwater drainage or discharge into Howell Creek, all in
accordance with and pursuant to those certain Construction Plans
for Tuscawilla Parcel 80, Phase I -A, Lots 10 -14,
FloodwayjFloodplain Modification, originally prepared by Allan
Madden Engineering, Inc. and Professional Engineering Consultants,
Inc., dated January, 1998, approved by the City on December 8, 1997
("Construction Plans"). A drainage easement is hereby created and
reserved on each Creek Front Lot encompassing the swale system as
more particularly provided in Subsection 14.1.2 of the Declaration
and as more particularly shown on the Phase I-A Replat. The
Developer, City, Association and Owners shall have the same rights
wi th respect to the Creek Front Lot swale system and drainage
easement, and the construction, use and maintenance of the swale
system shall be subject to the same covenants, restrictions and
obligations, as are set forth in Subsection 14.1.2 of the
Declaration.
5. Fill Slope and Com~ensation Area. The Developable Creek
Front Property includes an area designated as a floodway within an
area of special flood hazard ("Floodway") into which Floodway area
there will be certain fill encroachments in connection with the
construction of improvements upon the Creek Front Lots ("Floodway
Encroachments"). Construction of any improvements on each Creek
Front Lot must be performed in accordance with the Construction
Plans. Pursuant to and as depicted on the Construction Plans, the
Floodway Encroachments associated with the Creek Front Lots will
include elevated building areas and fill slopes ("Fill Slopes")
connecting such building areas to the swale system located at the
rear of each Creek Front Lot within the twenty foot (20') wide
drainage easement depicted on the Phase I-A Replat. The minimum
required dimensions of the Fill Slopes are depicted on the
Construction Plans. Also pursuant to and as depicted on the
Construction Plans, and also as required by the City as a condition
of approval of the Floodway Encroachments and Phase I-A Replat, the
real property constituting the portion of "Tract E" of Phase I not
included within the Developable Creek Front Property shall be
designated as a "Floodway Compensating Storage Area" and used to
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mitigate the impacts of the Floodway Encroachments ("Compensation
Area") .
The Fill Slopes and Compensation Area will form a part of the
Surface Water or Stormwater Management System for The Reserve at
Tuscawilla. Additionally, the proper monitoring and maintenance of
the Fill Slopes and Compensation Area by the Association is crucial
to the proper and appropriate development and improvement of each
of the Creek Front Lots, is necessary for the protection of such
lots against improper and inappropriate development, improvement
and use and otherwise will serve to fulfill the obj ects and
purposes of the Declaration. By reason of the foregoing, the Fill
Slopes and Compensation Area, and the Association's interest
therein by way of the "Floodway Easement" (defined below), form a
part of the Common Property of The Reserve at Tuscawilla and as
such, pursuant to Article IX, Section 9.8 and Article XII of the
Declaration, the administration, regulation, care, maintenance,
repair, restoration, replacement, preservation and protection of
the Fill Slopes and Compensation Area are and shall be the
responsibility of the Association. Further, all expenses
associated with such administration, regulation, care, maintenance,
etc., including expenses incurred pursuant to the "Floodway
Monitoring/Maintenance Plan" (defined below), shall be Common
Expenses subject to assessment by the Association from the Owners
as Regular Assessments pursuant to Article X of the Declaration.
Additionally, such Regular Assessments in connection with the
Floodway Monitoring/Maintenance Plan shall include assessments to
fund an escrow account in an amount, as reasonably determined by
the Association, necessary to pay the cost of any "Cross Section
Verification" (defined below) as and when such costs become due.
Notwithstanding anything to the contrary contained in the
foregoing provisions of this Paragraph 5, and subject to the last
paragraph of this Paragraph 5 pertaining to Individual Lot
Assessments, in no event shall the Association collect for any
calendar year from any Owner, or in respect of any Lot, any Regular
Assessment for the administration, regulation, care, maintenance,
etc. of the Fill Slopes and Compensation Area, as may be required
pursuant to the Floodway Monitoring/Maintenance Plan, in an amount
in excess of Twenty-four and NO/lOa u.S. Dollars ($24.00) ("Regular
Assessment Cap"). The Regular Assessment Cap shall not apply,
however, to Regular Assessments against Owners or Lots necessary to
fund the cost of construction, maintenance, repair or replacement
of any Common Property that may, from time to time, be located by
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the Association within the Compensation Area for the benefit of
Owners that is not necessary pursuant to the Floodway
Monitoring/Maintenance Plan, including, without limitation, park
and/or playground facilities, including the routine mowing and
landscaping of the Compensation Area so that such Common Property
facilities may be appropriately and safely enjoyed by the Owners.
Because of the relationship between the Creek Front Lots and
the Fill Slopes and Compensation Area and the direct benefit to the
Creek Front Lots from the administration, regulation, care,
maintenance, repair, restoration, replacement, preservation and
protection of the Fill Slopes and Compensation Area, all expenses
incurred by the Association in connection with such administration,
regulation, care, maintenance, etc., including expenses incurred
pursuant to the Floodway Monitoring/Maintenance Plan, in excess of
the Regular Assessment Cap shall be assessed against the Creek
Front Lots, and the Owners of such Creek Front Lots, as Individual
Lot Assessments pursuant to the provisions of Sub-section (c) of
Article X, Section 10.11 of the Declaration.
6. Monitorinq/Maintenance of Fill Slooes and Comoensation
Area. As a condition of its approval of the Floodway Encroachments
and Phase I-A Replat, the City has required, and by the terms of
this Amendment the Declaration shall so provide, that the Fill
Slopes and Compensation Area be monitored and maintained in the
manner set forth in the following provisions of this Paragraph 6,
which provisions shall hereinafter be collectively referred to as
the "Floodway Monitoring/Maintenance Plan". The Association shall
be responsible for (i) the perpetual monitoring, testing and
inspecting of the Fill Slopes and Compensation Area for the purpose
of detecting any erosion, displacement of sod or accretion of
sediment at the Fill Slopes or Compensation Area, or any slope
instability associated with the Fill Slopes, and (ii) the making or
conducting of any maintenance, repairs or replacements, as needed,
to maintain the integrity of the Fill Slopes and Compensation Area
consistent with the "As-Built" certifications of the Fill Slopes
and Compensation Area as submitted to the Federal Emergency
Management Agency in connection with the submittal of the Letter of
Map Revision reflecting the Floodway Encroachments ("As-Built
Certifications"), including, but not necessarily limited to, (a)
mowing the grass of, and provision of additional fill and sodding
to, the Fill Slopes and Compensation Area as may be necessary due
to possible future erosion, displacement of sod, or slope
instability, (b) the removal of any sediment accumulating at the
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Fill Slopes or in the Compensation Area as a result of the
development within the Floodway, in a manner so as to ensure that
the Fill Slopes and Compensation Area conform to the floodplain
management standards established by the City, the St. Johns River
Water Management District and the Federal Emergency Management
Agency and so that the Fill Slopes and Compensation Area will be
restored to the original lines and grades shown on the As-Built
Certifications and (c) the removal from Howell Creek of any
deposited sediment resulting from erosion of the Fill Slopes.
The required monitoring, testing and inspecting of the Fill
Slopes and Compensation Area must be performed by a qualified,
licensed professional engineering firm: (i) twice per year, in June
and October of each year, and (ii) following each rainfall event
during which at least eight (8) inches of rainfall occurs during
any 24 hour period. Additionally, at intervals of at least every
five (5) years from the date of this Amendment, the Association
shall cause to be performed a re-verification of the Cross-Sections
set forth at pages 5, 6, 7 and 8 of the Construction Plans for
purposes of detecting any variation in the flood carrying capacity
of the Floodway or any change in the conditions depicted in such
Cross-Sections due to the accretion of sediment at the Fill Slopes
or Compensation Area ("Cross Section Verification") .
The engineering firm retained by the Association must prepare
and submit to the Association and the City a signed and sealed
report setting forth (i) the results of such monitoring, testing
and inspecting of the Fill Slopes and Compensation Area, including
the status of the Fill Slopes and Compensation Area as compared to
the specifications of the Construction Plans, (ii) the results of
the Cross Section Verification, and (iii) any maintenance, repairs
or replacements necessary to restore the integrity of the Fill
Slopes and Compensation Area consistent with the Construction
Plans.
Pursuant to the provisions of Article XII, Section 12.4.6 of
the Declaration pertaining to the employment of independent
contractors to carry out, perform and discharge duties, obligations
and responsibilities of the Association, including but not limited
to the Association's obligations with respect to the Common
Property, the Association shall enter into and continuously
maintain in effect for so long as same is required by the City, a
contract (IIFloodway Management Agreement") with a qualified,
licensed professional engineering firm to perform all of the
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Association's monitoring and maintenance obligations pursuant to
the Floodway Monitoring/Maintenance Plan. Any such Floodway
Management Agreement must be consistent with the provisions of
Article XII, Sections 12.4.6 and 12.5(a) of the Declaration.
7. Floodwav Easement. In order to permit the Association to
carry out its obligations to monitor and maintain the Fill Slopes
and Compensation Area pursuant to the Floodway
Monitoring/Maintenance Plan, and pursuant to the provisions of
Article XIV, Section 14.2 of the Declaration pertaining to Future
Easements, there is hereby created, declared, granted and reserved
against the Developable Creek Front Property and the Compensation
Area, for the benefit of the Association, the City, the Developer
and all Owners, a non-exclusive easement under, over, upon and
within the Developable Creek Front Property and the Compensation
Area ( II Floodway Easement II ), for purposes of, and to the extent
reasonably necessary for, conducting all monitoring and maintenance
of the Fill Slopes and Compensation Area, including the right in
favor of the Association, City, Developer or Owners to enter upon
the Developable Creek Front Property and Compensation Area for the
purpose of performing any tests, taking any samples, and performing
any inspections, maintenance, repair, and replacements, all as
necessary pursuant to the Floodway Monitoring/Maintenance Plan.
The Floodway Easement shall also constitute a drainage easement
upon the Compensation Area, which shall include the right to enter
upon the Compensation Area and excavate the Compensation Area, for
purposes of flood and drainage mitigation of the impacts of the
Floodway Encroachments, all pursuant to and consistent' with the
Construction Plans.
8. Ordinary Maintenance and Prohibited Activities Within
Fill Slopes and Compensation Area. Notwithstanding anything in the
foregoing provisions of this Amendment to the contrary, each Owner,
including builders, shall be responsible for the ordinary
maintenance of the Fill Slopes located on their respective Creek
Front Lots. For purposes of the Declaration, such ordinary
maintenance shall mean only mowing, cleaning, and keeping such area
free of debris or any obstructions and maintaining live, healthy
sod on the Fill Slopes, including appropriate irrigation,
fertilization and pest control, as necessary. Filling, excavation,
construction of fences or otherwise obstructing or altering the
Fill Slopes and Compensation Area or the potential flow of flood
waters across the Fill Slopes and Compensation Area in a manner
inconsistent with the Construction Plans is strictly prohibited and
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any Owner, builder or other party causing such obstruction,
alteration, etc. shall be responsible to immediately clear and/or
reverse the impact of such obstruction, alteration, etc. and to
repair and return the Fill Slopes and/or Compensation Area to its
original condition as required by the Construction Plans.
9. City Rioht to Perform Floodwav Monitorino/Maintenance
Plan and Collect Assessments. If at any time the Association fails
to properly perform its obligations pursuant to the Floodway
Monitoring/Maintenance Plan, as set forth in Paragraph 6 of this
Amendment, including any such failure resulting from the
Association's failure to levy Assessments required to perform such
obligations, the City shall have the right to perform and satisfy
the Association's obligations under the Floodway
Monitoring/Maintenance Plan and is hereby authorized to levy
Assessments against the Owners in an amount necessary to pay all
costs and expenses incurred by the City in connection therewith,
plus an amount equal to twenty-five percent (25%) of such costs and
expenses which shall be payable to the City to cover its
administrative and other overhead expenses. Notwithstanding
anything in the foregoing provisions of this Paragraph 9 to the
contrary, the City shall be subject to the same restrictions on
Assessments against the Owners as is set forth in Paragraph 5 of
this Amendment, meaning that the City cannot levy Assessments
against the Owners, in general, that would result in such Owners
having to pay Assessments for any year in excess of the Regular
Assessment Cap and that any required Assessments in excess of the
Regular Assessment Cap for any year must be levied by the City
against the Creek Front Lots, and owners of such Creek Front Lots,
as Individual Lot Assessments. For purposes of the foregoing and
to ensure the City's ability to perform the obligations under the
Floodway Monitoring/Maintenance Plan as set forth above, the City
shall be deemed to be a beneficiary of the Floodway Easement
described in Paragraph 7 of this Amendment.
10. No Further Amendments. In the event of any
inconsistencies between the terms and provisions of this Amendment
and the terms and provisions of the Declaration, the terms and
provisions of this Amendment shall control. Otherwise the
Declaration is unmodified and remains in full force and effect.
OR181lS0;1
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3709
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IN WITNESS WHEREOF, Developer has caused this Amendment to be
executed as of the day and year first above written.
Signed, sealed and delivered
in the presence of:
"DEVELOPER"
RICHLAND TUSCAWILLA, LTD., a
Florida limited partnership
'\
By: RICHLAND MANAGEMENT,
INC., a Florida
corporation, its general
partner
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By:
Na : ,- C lU+ l._'l\"'l'-'~)"
Title: ~ "I!f' ?\'E:S:.i.\~-"-'\
I', tel'\.~ ,">'r ',( .-, f
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Print Name: L:.' 4...1''1~ ,< -/I...j/c.\...
STATE OF FLORIDA
COUNTY OF H\\\'S~"ir(t.L~
Th~foregoing inssrument,was ackno~ledged before my thiS\-)~
day of 'rUC u.-St- ' 19.:15, by ~. tu.r\- ~'i\.\<'f\.('~ as he{ {'(ESIOfN} of
Richland M;.bagement, Inc., a Florida corporation on behalf of
Richland Tuscawilla, L~., a Florida limited partnership. Said
person (check one) ~ is personally known to me, 0 produced
as identification.
1 ,......... MICHellE M. HACEK
~"~"""'f.rf~!t~.. II;.
!:1':!;;:f:~ MY COMMISSION' CO 593299
~~:'~':ol'~ EXPIRES: November 18. 2000
<,1.'1' 'F',,;<t>'- Bonded TIuu NotaIY Publlc UndeIWIltIlS
IJil.",,'
~tJ:~~#cr;~L;f'7/7kzc,c, ~
Print Name: \'l\\e.~\E'(le it) j--\":\('t":t<
Notary Public, State of Florida
Commission No. :
My Commission Expires:
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3709 0199
EXHIBIT "A"
;)ti~':L:~CLE. CU. FL
(THE RESERVE AT TUSCAWILLA, DEVELOPABLE CREEK FRONT PROPERTY)
A portion of Tract "E", The Reserve at Tuscawilla, Phase I, as
recorded in Plat Book 48, Pages 31 through 40 of the Public Records
of Seminole County, Florida.
Being more particularly described as follows:
Begin at the most Northerly Corner of Lot 9 of said The
Reserve at Tuscawilla, Phase I; thence run Northerly along the
Easterly right-of-way line of Cherry Creek Circle (50 foot
private road right-of-way) the following courses: thence from
a tangent bearing of North 19015'50" East, run Northerly along
a curve concave Westerly and having a radius of 50.00 feet,
through a central angle 53007' 47", for an arc distance of
46.36 feet to a point of reverse curvature of a curve concave
Easterly and having a radius of 25.00 feet; thence run
Northerly along said curve, through a central angle of
48031'50" for an arc distance of 21.18 feet to a point of
reverse curvature of a curve concave Westerly and having a
radius of 125.00 feet; thence run Northerly along said curve,
through a central angle of 15044'46", for an arc distance of
34.35 feet to a point of tangency; thence run North 01004'53"
West, for a distance of 318.39 feet to a point of curvature of
a curve concave Westerly and having a radius of 125.00 feet;
thence run Northerly along said curve, through a central angle
of 17001142" for an arc distance of 37.15 feet; thence
departing said Easterly right-of-way line, run North 88055 I 07"
East, for a distance of 494 feet plus or minus to the
centerline of Howell Creek; thence run Southerly along said
centerline of Howell Creek, for a distance of 634 feet plus or
minus to a point on the Northerly line of aforesaid Lot 9;
thence departing said centerline, run Westerly and Northerly
along said Northerly line the following courses: thence run
South 88055'07" West for a distance of 243 feet plus or minus;
thence run North 01004'53" West, for a distance of 66.65 feet;
thence run North 70044'10" West, for a distance of 13.38 feet
to the Point of Beginning.
Allan & Company
The Reserve at Tuscawilla Phase l-A
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