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DECLARATION OF COVENANTS, CONDITIONS, EASEMENTS
AND RESTRICTIONS
FOR
WICKLOW GREENS AT TUSCA WILLA
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fHJS INSTRUMENT PREPARED BY:
NAME S f-.e ve 1\ SQW'\Q~o.
3 532 0 772 ADDR. Pc. AOJ( 3lf'13
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DECLARATION OF COVE~n~~NDITIONS, EASEMENTS
AND RESTRICTIONS FOR WICKLOW GREENS AT TUSCAWILLA
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BOOK PAGE
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THIS DECLARATION OF COVENANTS, CONDITIONS, EASEMENTS AND
RESTRICTIONS is made and executed this ~\ day of November, 1998, by WICKLOW,
LTD., a Florida limited partnership (hereinafter referred to as the "Developer").
WITNE~~ETH;.
WHEREAS, Developer is the record owner of fee simple title to certain real property
situate in Seminole County, Florida, which is more particularly described as follows:
All lands included within and embraced by the plat of WICKLOW
GREENS AT TUSCA WILLA, according to the plat thereof as
recorded in Plat Book 5 t , Pages lto- "11 , 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 "Wicklow Greens 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 comprising Wicklow Greens at Tuscawilla shall be subject to
these uniform covenants, conditions, restrictions, easements and reservations.
NOW, THEREFORE, for and in consideration of the premises hereof, Developer does
hereby declare that the Subject Property shall be and is hereby encumbered by and made subject
to those covenants, conditions, restrictions, easements and reservations hereinafter set forth.
ARTICLE I
DEFINITIONS
For purposes of this Declaration, the following terms shall have the following definitions
and meanings:
1.1 "Architectural Review Board" shall mean and be defined as the committee created
and established by and pursuant to this Declaration which is responsible for the review and
approval of all plans, specifications and other materials describing or depicting improvements
proposed to be constructed on Residential Property and also responsible for the administration of
those provisions of Article XV of this Declaration involving architectural and landscape control.
OFfiCIAL R[COiiD~
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3532 0773
1.2 "Assessment" shall mean and be defined as any assessment aFmtl~~ fM 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 Wicklow Greens at Tuscawilla
Community 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 ofthe 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 storm water management tracts and facilities, the benefits of
landscape and wall easements shown on the Plat, the Conservation Easement 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 Wicklow Greens 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.
1.9 "Community Wall" shall mean and be defined as any walls or similar structures from
time to time situated on the wall easements as shown on the Plat, or on Wicklow Way or at the
entrance to Wicklow Greens at Tuscawilla on Ashford Drive, together with any footings, related
equipment, lighting, landscaping (including wiring or irrigation systems), signage, entry gate and
other appurtenances.
1.10 "County" shall mean and be defined as Seminole County, a political subdivision
of the State of Florida, specifically including each and all of its departments and agencies.
1.11 "Declaration" shall mean and be defined as this Declaration of Covenants,
Conditions, Easements and Restrictions for Wicklow Greens at Tuscawilla and all amendments
thereto and modifications thereof as are from time to time recorded among the Public Records of
the County.
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1.12 "Design Standards Manual" shall mean and be defin~lilo'ti~QIl.iitCaoEl1ment 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 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 Wicklow, 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 "Governmental Regulations" shall mean and be defined as all applicable laws,
statutes, codes, ordinances, rules, regulations, limitations, restrictions, orders, judgments or other
requirements of any governmental authority having jurisdiction over the Subject Property or any
Improvements constructed or located thereon, including, without limitation, those pertaining to
building and zoning.
1.15 "Institutional Lender" shall mean and be defined as and include (a) any state or
federal savings bank, commercial bank or savings and loan association, any real estate
investment trust, any insurance company, any mortgage banking company, any mortgage
company, any pension and/or profit sharing plan or any other lending or investing institution,
generally and customarily recognized as being engaged, in the ordinary course of its business, in
making, holding, insuring or guaranteeing first lien priority real estate mortgage loans and (b)
Developer, to the extent that Developer shall hold a mortgage upon any portion of the Subject
Property, and all successors, assigns, assignees and transferees of Developer who shall own or
hold any mortgage upon the Subject Property or any portion thereof which was originally
executed and delivered to and owned and held by Developer.
1.16 "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.
1.17 "Lot( s )" shall mean and be defined as a separate single family residential building
site within the Subject 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 forty-eight (48) Lots but it is under no obligation, express or implied, to do so.
1.18 "Owner" shall mean and be defined as one or more persons or entities who or
which are alone or collectively the record owner of fee simple title to any Lot, parcel, piece or
tract of land within Wicklow Greens 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.
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1.19 "Plat" shall mean and be defined as any of the plats of the SUbject firoperty, as
recorded or to be recorded in the Public Records of the County.
1.20 "Residential Property" shall mean and be defined as all of the Lots.
1.21 "Surface Water or Stormwater Management System" means the system,
including, but not limited to, roadway under-drains and rear yard swales, which is designed and
constructed or implemented to control discharges which are necessitated by rainfall events,
incorporating methods to collect, convey, store, absorb, inhibit, treat, use or reuse water to
prevent or reduce flooding, overdrainage, environmental degradation, and water pollution or
otherwise affect the quantity and quality of discharges from the system, as permitted pursuant to
Chapters 40C-4, 40C-40 or 40C-42, F.A.C.
1.22 "Subiect Property" shall mean all lands included within and compnsmg
WICKLOW GREENS AT TUSCA WILLA, as initially described on Exhibit "A" attached
hereto, together with any additional lands the Developer may subsequently extend this
Declaration to as contemplated in Section 4.2.
1.23 "Wicklow Greens at Tuscawilla" and "Wicklow Greens at Tuscawilla
Community" shall mean and be defined as WICKLOW GREENS AT TUSCA WILLA, 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.
ARTICLE II
OBJECTS AND PURPOSES
The covenants, conditions, restrictions, easements and reservations set forth in this
Declaration are hereby imposed upon the Subject Property for the following objects and
purposes:
(a) To establish Wicklow Greens at Tuscawilla as a premier single family
residential community in Central Florida;
(b) To create, develop, foster, maintain, preserve and protect within Wicklow
Greens 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
Wicklow Greens at Tuscawilla;
(c) To ensure that the development of Wick low Greens at Tuscawilla will proceed
pursuant to a uniform plan of development with consistently high architectural,
environmental, ecological and aesthetic standards;
(d) To ensure the proper and appropriate subdivision, development, improvement,
occupation, use and enjoyment of each Lot, piece, parcel or tract of land within Wicklow
Greens at Tuscawilla;
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3532 0778
(e) To protect each Lot, piece, parcel or tract 5frill\tlL~h'h.i6lwicklow Greens 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
Wicklow Greens at Tuscawilla;
(g) To guard against the development and construction of improper, undesirable,
unattractive or inappropriate Improvements and the use of improper, undesirable,
unsuitable or unsightly materials;
(h) To provide for the future ownership, management, administration,
improvement, care, maintenance, use, regulation, preservation and protection of all
Common Property within Wicklow Greens at Tuscawilla and to provide for and assure
the availability of the funds required therefor;
(i) To provide for the establishment, maintenance, preservation, protection and
enhancement of consistently high property values within Wicklow Greens at Tuscawilla;
G) To accomplish, meet, satisfy and fulfill certain Governmental Regulations and
other governmental requirements;
(k) To provide Developer with effective control over the development,
management, administration, care, maintenance, use, appearance, marketing and sale of
and the construction ofImprovements 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 Running with Land. This Declaration and each and every one of the
covenants, conditions, easements, restrictions and reservations contained herein are hereby
declared to be and shall hereafter continue as, covenants running with title to those portions of
the Subject Property upon which the same are hereby imposed as an encumbrance.
3.2 Property Affected. This Declaration and the covenants, conditions, 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,
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o 777
conveyed, demised, devised, assigned, leased, mortgaged, occ~~et!9lJsfdl.Jkt 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 the Subject Property, whether by, through or under Developer
or any subsequent Owner, shall, by virtue of the acceptance of any such right, title, interest or
claim, whether by deed or other instrument, or by operation of law or otherwise, and whether
voluntarily or involuntarily, be deemed to have acquired and accepted such right, title, interest or
claim in or to any such Lot, piece, parcel or tract of the Subject Property subject to and benefited
and burdened by the covenants, conditions, restrictions, easements and reservations set forth in
this Declaration the same as if such person or party had specifically joined in and agreed and
consented to each and every one of the terms and provisions of this Declaration and the same as
if each and every one 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.
. ARTICLE IV
PROPERTY SUBJECT TO DECLARATION
4.1 Subiect Property. The property which shall be subject to, and encumbered, govemed,
benefited and burdened by this Declaration shall be all of the Subject Property as the same is
herein defined and described.
4.2 Addition of Property. Developer hereby reserves to itself and shall hereafter have the
right, but not the obligation, at any time and from time to time, in its sole and absolute discretion,
and without notice to or the approval of any party or person whomsoever or whatsoever, to
impose this Declaration or a substantially similar declaration upon additional property adjacent
or contiguous, 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 tract (Tract A as shown on the Plat), all drainage pipes and
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improvements in drainage easements as shown on the Plat, the ggttJ!ffiL5Mk.ff..easements shown
on the Plat, the benefit of the easements established by this Declaration for any common facilities
that from time to time may be installed on any Lot, as provided in this Declaration, and all
easements, if any, granted to the Association.
ARTICLE VI
PERMITTED USES
6.1 Residential Property. Except as hereinafter provided in Subsection 14.1.8 of this
Declaration, Residential Property shall be improved as and used, occupied and enjoyed solely
and exclusively for single family residential dwelling purposes and no other uses or purposes
whatsoever.
6.2 Common Property. Common Property shall be improved, maintained, used, and
enjoyed for the common recreation, health, safety, welfare, benefit and convenience of all
Owners and residents of Wick low Greens 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 Single Family Only. Except as specifically provided in Subsection 14.1.8 of this
Declaration, no use shall be made of Residential Property other than for single family residential
dwelling purposes.
7.2 Ownership and Leasing. Ownership of Residential Property shall be for single family
residential dwelling purposes only. Accordingly, Residential Property may not be rented or
leased for any single period of less than twelve (12) months. No "time-share plan", as that term
is defined in Section 721.05, Florida Statutes, or any similar plan of fragmented or interval
ownership of Residential Property shall be permitted.
7.3 Subdivision. No Lot shall be subdivided nor shall any portion of a Lot less than the
whole thereof be sold, conveyed or transferred without the prior written approval and consent of
the Developer. 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
resubdivided into more than one (1) single family residential home site. In the event of any such
conveyance and combination, the grantee from the Developer shall cause to be submitted an
application to modify or re-plat the lots affected by such conveyance and combination.
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7.4 Commercial Activity. Except (i) the permitted activities spe~1tfcalft. provided in
Subsection 14.1.8 of this Declaration, and (ii) the use of a room or ~ooms' within a residence as
an in-home office, no business, commercial, industrial, trade, professional or other non-
residential activity or use of any nature, type, kind or description shall be conducted upon or
from Residential Property or within any Improvements located or constructed thereon. The use
of any residence must be primarily that of residential and, accordingly, any in-home office use is
secondary to the residential use. No signs of any type advertising or describing in any way the
in-home office use or business are permitted to be placed anywhere within the Lot or within or
upon the residence. The activities or business conducted at the in-home office shall not be such
as to generate traffic by customers, vendors or the like, through Wicklow Greens at Tuscawilla or
to the residence.
7.5 Offensive Activity. No illegal, noxious, unsightly or offensive activity shall be
carried on or conducted, upon or from Residential Property nor shall anything be done thereon
which may be or tend to become or cause an unreasonable annoyance or nuisance, whether
public or private, to residents in the immediate vicinity or to Wicklow Greens 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 maintained 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 facie be considered
unreasonable. Notwithstanding the foregoing provisions of this Section 7.6 permitting dogs,
cats, birds or other usual and customary household pets, however, no such reptiles, animals, birds
or other pets may be kept, raised or maintained on Residential Property under circumstances
which, in the good faith judgment of Developer or the Association, shall constitute an
unreasonable annoyance, hazard, or nuisance to residents in the vicinity or an unreasonable
interference with the comfortable and quiet use, occupation and enjoyment of other Residential
Property.
7.7 Commercial and Recreational Vehicles.No truck, bus, trailer or other "commercial
vehicle" (as that term is hereinafter defined) and no mobile home, motor home, house
trailer, camper, van, boat, personal water vehicle, boat or other trailer, horse trailer or
other recreational vehicle or the like shall be permitted to be parked or stored on
Residential Property unless the same shall be parked or stored entirely within and fully
enclosed by a garage; nor shall any such commercial or recreational vehicle or the like be
permitted to be parked or stored on any street within the Subject Property.
Notwithstanding the foregoing, however, it is expressly provided that commercial
vehicles shall be permitted to be parked on or in front of (but not adjacent to) Residential
Property on which bona fide ongoing construction activity is taking place; nor shall the
foregoing provisions of this Subsection (a) apply to parking on "a temporary or short-
term basis" (as that term is hereinafter defined). .
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(b) No passenger automobile or commercial, fe~~~Na%fu~~' Sl-"other motorized
vehicle, or the like, shall be dismantled, abandoned,. serviced, rebuilt, repaired, or
repainted 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 parked 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 temporary 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 with the furnishing of services and/or the routine pick-up and
delivery respectively, of materials from and to Residential Property (including those
commercial vehicles used in connection with a bona fide current on-going construction of
Improvements on Residential Property), and (iii) commercial or recreational vehicles
belonging to or being used by Owners for loading and unloading purposes only.
Notwithstanding anything contained herein to the contrary, parking on "a temporary or
short-term basis" is prohibited from occurring as to any Lot more frequently than three
(3) times in each calendar year.
(e) In the context of this Section 7.7 the term "commercial vehicle" shall mean
and be defined as a truck, motor home, bus or van of greater than three-quarter (3/4) ton
capacity displayed on any part thereof advertising any kind of business or on or within
which any commercial materials and/or tools are visible.
(f) The Developer and the Association shall, subject to reasonable approval by
the City, each be entitled and is hereby empowered to adopt additional reasonable rules
and regulations governing the admission to and parking, use and storage of commercial
and recreational vehicles within Wicklow Greens at Tuscawilla, and if so adopted the
same shall be binding upon all Residential Property and all Owners and their guests and
invitees.
(g) Any commercial, recreational, or other vehicle parked or stored in violation of
these restrictions or in violation of any rule and regulation adopted by the Association
concerning the same may be towed away or otherwise removed by or at the request of the
Association and at the sole expense of the Owner of the Lot upon which any such
commercial, recreational or other vehicle is parked in violation of these restrictions or
such rules and regulations. In the event of such towing or other removal, the Association
and its employees or agents shall not be liable or responsible to the owner of such vehicle
for trespass, conversion, or damage incurred as an incident to or for the cost of such
removal or otherwise; nor shall the Association, its employees or agents be guilty of any
criminal act or have any civil liability by reason of such towing or removal, and neither
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its towing or removal nor the failure of the owner of tIMr~~a 6Q. fdmoved 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 Subject 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 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 and Country Club
Property. The Association shall be entitled to establish and charge a uniform reasonable fee for
its inspection, approval and licensing of golf carts. Such fee of the Association shall be separate
and apart from, and in addition to, any trail or license fee charged by the owner o"r lessee, from
time to time, of the Tuscawilla Golf Course and Country Club Property in connection with the
use of any golf cart on the golf course.
7.9 Maintenance. Each Lot and all Improvements, including landscaping, located thereon
shall at all times be kept and maintained in a first-class, safe, clean, wholesome and attractive
condition and shall not be allowed to deteriorate, fall into disrepair or become unsafe or
unsightly. All exterior painted surfaces shall be painted regularly and well maintained. 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 Damaged Improvements. In the event that a residential
dwelling or other Improvements on Residential Property shall be damaged or destroyed by
casualty, hazard or other cause, including fire or windstorm, then, 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.
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7.11 Garbage and Garbage Contamers. All gar5age an'tl rtasno contamers and theIr
storage areas and the like shall be kept within a garage or placed inside of an enclosure approved
by the Architectural Review Board or behind opaque walls attached to and made a part of the
single family residential dwelling constructed on each Lot and otherwise in conformity with
applicable rules and regulations. In no event shall any of the same be visible from any adjacent
or neighboring property including all of the 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 the street and placed back in their storage areas the night of such
pickup or removal.
7.12 Burning. No burning of leaves, trash, rubbish, garbage or other waste materials of
any type shall be permitted or conducted on Residential Property. Nothing herein contained,
however, shall be deemed to prohibit the burning of wood, logs or charcoal in properly
constructed or installed fireplaces, barbecue cookers or the like, whether inside or outside of any
building or other structure located on Residential Property.
7.13 Storage 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.
7.14 Mineral Exploitation. No exploration, mining, quarrying, or drilling for or
exploitation of gas, oil, phosphate conducted on Residential Property.
7.15 Laundry and Clothes Drying. No laundry or clothes drying lines or areas shall be
permitted outside of any building on Residential Property unless the same shall be placed inside
of walls, fences, landscaping screens or similar type enclosures in conformity with applicable
rules and regulations adopted and promulgated by the Association with respect thereto. In no
event shall any of the same be permitted if visible from any adjacent or neighboring property.
7.16 Radio Transmission Equipment._ No radio, microwave or other electronic
transmission equipment, including ham radios, citizens band radios, walkie talkies and the like,
shall be operated on Residential Property without the prior written consent of the Association,
and such consent, once given, may be revoked by the Association in the event that the operation
of any such equipment interferes with ordinary radio, telephone or television reception or
equipment, including Wicklow Greens at Tuscawilla gate control systems.
7.17 Signs. No sign, billboard or advertising of any kind shi11 be displayed to public
view on Residential Property without the prior written consent of ~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 contractor responsible, respectively, for the design and construction of a dwelling under
11
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construction on a particular Lot; provided, however, that such ~~~I~BltfrftOatbroved in writing by
Developer, and (c) one (1) discreet professionally prepared "for sale" sign of not more than five
(5) square feet placed on the street side of a Lot; provided, however, that such sign is first
approved in writing by the Architectural Review Board. Notwithstanding the foregoing
provisions of this section, Developer specifically reserves for itself and its agents, employees,
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 displaying the names or otherwise
advertising 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
leasing of Residential Property shall be permitted.
7.] 8 Trees. No trees shall be removed from any Lot without the prior written consent
of the Architectural Review Board; provided, however that such removal shall be in compliance
with Governmental Regulations. Such approval shall be reasonably given, however, if such
removal is necessary in connection with the location of the main residential dwelling on a
particular Lot where the preservation of any tree would work a hardship or require extraordinary
design measures in connection with the location of such dwelling on the Lot and the plans and
specifications for and location of one dwelling on the Lot have been approved by the
Architectural Review Board as provided in Article XV hereof. As used herein the term "tree"
shall mean and be defined as any living, self-supporting perennial plant which has a trunk
diameter of at least three (3) inches measured at D.B.H. (at the base of the tree) and normally
grows to a minimum height of fifteen (15) feet. Any tree(s) removed in violation of this
provision shall be immediately replaced with a tree of similar size and type.
7.19 Drainage. All storm water from any Lot shall drain into or onto contiguous or
adjacent 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. The Owners of Lots 10, 11, and 14 through 30, who acquire title to such
Lot from the Developer shall construct and maintain the drainage swale at the rear of such Lot
pursuant to the site grading and drainage plans approved by the City.
7.20 Rules and Regulations. In addition to the foregoing restrictions on the use of
Residential Property, the Association shall have the right, power and authority, subject to the
prior written consent and approval of Developer, to promulgate and impose reasonable rules and
regulations governing and/or restricting the use of Residential Property and to thereafter change,
modify, 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
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all Residential Property and the Owners thereof and their succ~~~~~~aOa[~gns, 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 within said ten (10) day period shall become a lien on the affected Lot in
accordance with the provisions of Section 10.5 of this Declaration.
7.22 Precedence Over Less Stringent Governmental Regulations. In those instances
where the covenants, conditions and restrictions set forth in this Article VII set or establish
minimum standards or limitations 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, conditions and restrictions set forth in this Article VII, the
Governmental Regulations shall take precedence and prevail over the less stringent, covenants,
conditions and restrictions set forth in this Article VII.
ARTICLE VIII
BUILDING RESTRICTIONS - RESIDENTIAL PROPERTY
The erection, placement, construction, repair; replacement and installation of all
Improvements on Residential Property shall be subject to and governed by the following
covenants, conditions, restrictions and reservations:
8.1 Building Type. As the use of Residential Property is limited to single family
residential dwelling purposes only, 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.
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8.3 Governmental Regulations. All Improvements plac~i~8~~t~B; b~ected, 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 Design Standards Manual. All Improvements shall be placed, located, erected,
constructed, installed and maintained on Residential Property in conformance with the Design
Standards Manual for which provision is made in Article XV of this Declaration as the same may
be changed, amended or modified from time to time.
8.5 Construction. The construction of all residential dwellings and other Improvements
on Residential Property must be performed only by such general contractors 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 Wicklow Greens 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) month period the plans and specifications for any proposed
construction must once again be reviewed and approved by the Architectural Review Board in
accordance with the provisions of Article XV of this Declaration and any prior approval of the
same by the Architectural Review Board shall no longer be binding on the Architectural Review
Board. Upon commencement of construction, such construction shall be prosecuted diligently,
continuously and without interruption to completion within a reasonable time; but in no event
more than one (1) year from the date of the commencement of such construction, however, the
Architectural Review Board shall 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 Height Limitation. No Improvement on Residential Property shall exceed thirty-five
(35) feet in height, from the finished grade to the roof peak at its highest point, except as
expressly permitted by the Architectural Review Board. Each residential dwelling on a Lot shall
consist of not more than two (2) full stories (not including basement) unless otherwise approved
in writing by the Architectural Review Board.
8.8 Building Setback Lines. No part of any building shall be constructed, erected, placed
or installed any closer to the property boundary lines of Residential Property than as follows, to
wi t: ()\ , L ):loo t.-
~~_ ~ ,'\WI
8.8.1 Lots. No closer than ~) feet to the front yard (street side) property
boundary line; twenty-five (25) feet to the rear yard property boundary line; and ten (10) feet to
the side yard property boundary lines on interior lots.
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8.8.2 Comer Lots. Notwithstanding the sia~Mj~gH G9ni~hing . setback lines
established elsewhere in this Section 8.8, the side yard building setback line on the side yard of
comer 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, than as follows:
8.9.1 Swimming Pools. No closer than the otherwise established side yard
building setback line plus an additional five (5) feet and no closer than fifteen (15) feet to any
rear yard property boundary line from the water's edge. No swimming pools shall be constructed
in front or side yards. -
8.9.2 Swimming Pool Decks. Patios and Enclosures. No swimming pool deck
or patio, whether constructed of concrete, cool deck, aggregate wood or any other material shall
be constructed nearer than ten (10) feet to any rear yard property line or nearer than the otherwise
established side yard building setback line to any side yard property line. A screen enclosure
shall be constructed no closer than ten (10) feet to any rear property line.
8.9.3 Outbuildings 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 writing by the Architectural
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 Design Standards Manual. All other Improvements on Residential
Property shall be set back from property boundary lines, as specified in the Design Standards
Manual if one is in existence, otherwise as specified by the Association.
8.10 Intentionally Blank. Dwelling 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 Temporary Improvements. No buildings, structures improvements or other
facilities of a temporary nature, including trailers, tents or shacks shall be permitted on
Residential Property; provided, however, that temporary improvements or facilities used solely
in connection with and during the period of the construction of approved permanent
Improvements may be permitted by the Architectural Review Board, in its discretion, during the
period of the construction of such permanent Improvements so long as the same have been
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properly permitted by applicable governmental authoritieSs~~~~LfuERtld-'as inconspicuously as
possible, are removed immediately following the completion of such construction, and are not
utilized as living quarters. The location of such temporary improvements during construction
shall be approved in writing by the Architectural Review Board.
8.13 Garages and Carports. No carports shall be placed, erected, constructed, installed
or maintained on Residential Property. Each single family residential dwelling constructed and
maintained on Residential Property shall have an attached garage or, if approved by the
Architectural Review Board, a detached garage, as an appurtenance thereto. All garages shall be
for not less than two (2) standard sized passenger automobiles. Garages for more than three (3)
automobiles must be specifically approved by the Architectural 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 attached 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 Wicklow Greens at Tuscawilla, it may be impossible or
impractical to design, erect, construct, install or maintain attached garages in such manner that
the garage doors thereof do not face and are not visible from any street or the front of any
residence. Accordingly, it is expressly provided that Developer without the consent of the
Architectural Review Board, or the Architectural Review Board only with the consent of
Developer, in their sole and absolute discretion, shall be entitled, and are hereby authorized, to
grant waivers of and/or variances from such restriction in any particular instance and with respect
to any particular Lot or Improvement. To the extent that any such waiver and/or variance is
granted by the Developer and/or the Architectural Review Board, as aforesaid, the same shall not
be deemed to be a precedent for the granting of such or any similar waiver or variance in any
other particular instance or with respect to any other particular Lot or Improvement.
8.14 Curb Cuts. Vehicular access to each Lot on Residential Property shall be through
or over such driveway or driveways and curb cut or curb cuts as shall be approved by the
Architectural Review Board prior to construction. The location, size and angle of the approach
of all driveways and curb cuts shall be subject to the approval of the Architectural Review Board.
8.15 Driveways. All driveways, turnarounds and parking areas shall have a concrete
base and shall be paved or finished with a hard dust-free material approved by the Architectural
Review Board or otherwise specified in the Design Standards Manual. Each driveway shall
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extend the entire distance from the garage door to the Wa~&8t.pofflohl.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 vertical/horizontal) or as
otherwise specified in the Design Standards Manual. All roofs shall be constructed of clay, tile,
cement tile, slate, standing seam copper, cedar shake shingle, 3D-year architectural dimensional
shingle or other materials specified in the Design Standards Manual or otherwise approved by the
Architectural Review Board. All roof colors must be approved by the Architectural Review
Board. No pure white, pure black or pure primary colored roofs shall be permitted.
8.17 Roof Structures. No antennas, windmills, appliances, rooftop attic ventilators,
fans, solar collector panels or other rooftop installations or structure of any type shall be placed,
located, erected, constructed, installed or maintained upon the exterior roof of any building or
structure unless the same shall first be approved in writing by the Architectural Review Board
and shall otherwise be erected, constructed, installed and maintained on the rear yard side of the
roof or otherwise in such manner and at such location that the same shall not be visible from any
street or neighboring residences.
8.18 Antennas. Etc. No antennas, aerials, discs, dishes or other devices for the
transmission or reception of radio or television signals or any other form of electromagnetic
radiation or communication shall be erected, constructed, installed, used or maintained outside of
any building or structure on Residential Property whether or not the same is attached to or
detached from a building or a structure. Provided, mini-dishes may be permitted as exceptions
pursuant to Section 8.35 if the diameter and location of the mini-dish is acceptable to Developer.
8.19 Windows. The windows of all buildings on Residential Property shall have
frames and window hardware, if any, constructed of wood or such other materials as shall be in
conformance with the applicable provisions of the Design Standards Manual. In no event shall
raw or silver aluminum windows be permitted.
8.20 Reflective or Mirrored Glass. No reflective or mirrored glass shall be used on, in
or for the windows or doors of any buildings or other Improvements constructed upon
Residential Property. No tinted windows or doors shall be permitted unless first approved by the
Architectural Review Board in writing taking into account the degree of tinting and the aesthetics
of the Improvements involved.
8.21 Awnings. Shutters and Window Coverings. No window of any building or other
Improvements constructed upon 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
17
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covered by or coated with any foil or other reflectiB.~MlliP'rfiifR,J;l:i. 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 Conditioning Equipment. All air conditioning compressors and other
equipment located outside of residential dwelling shall be screened from the view of street and
road rights-of-way, and adjacent Lots by opaque walls attached to and made a part of each single
family residential dwelling and otherwise in conformity with the applicable provisions of the
Design Standards Manual or as otherwise approved by the Architectural Review Board.
Absolutely no window or roof mounted air conditioning units shall be permitted for any
residential dwelling, other than as may be approved by the Association for use in an outbuilding
or accessory structure.
8.23 Fences and Walls. Other than those constructed by Developer and/or the
Association within the Wall Easements established pursuant to Subsection 14.1.4 of this
Declaration or pursuant to the Plat, no fences or walls shall be erected on Residential Property
unless approved in writing by the Architectural Review Board. The height of all fences or walls
shall be subject to the control and approval of the Architectural Review Board. All fences and
walls shall be constructed of wrought iron, brick, painted and exterior-treated wood, stucco or
other masonry materials and shall conform to guidelines and specifications otherwise set forth in
the Design Standards Manual. Exception to such specifications may be permitted by the
Architectural Review Board, in its discretion; provided, however, that in no event shall
uncovered or exposed (whether concrete or concrete blocks, painted or not) chain link or
prefabricated wooden fences be permitted. No solid fences shall be permitted on the rear of Lots
adjacent to the golf course.
8.24 Swimming Pool Screens. No swimming pools shall be enclosed by any screen,
screening or other enclosure or under a roof of any kind unless the same shall be located entirely
within the extension of the side walls of the main residential dwelling on the Lot on which such
swimming pool is located. All pools shall be subject to approval by the Architectural Review
Board.
8.25 Exterior Building Materials, Finishes and Colors. All exterior building materials,
finishes and colors shall be in conformance with the applicable provisions of the Design
Standards Manual or as otherwise approved by the Architectural Review Board. Uncovered or
exposed (whether painted or not) concrete or concrete block shall not be permitted as the exterior
finish of any 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 Lighting. 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 conform to the applicable provisions of the Design Standards Manual.
Special exceptions to such specifications may be approved by and within the discretion of the
Architectural Review Board upon a showing of good cause therefor.
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8.27 Mailboxes and Other Delivery Boxes. UntiiEs{1~RlftJig'IJ-the United States Post
Office Department shall approve mail delivery service to Wicklow Greens 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 mailbox of the
breakaway type construction for the delivery of United States mail. The design, construction and
location of such mailbox shall be in strict conformance with the applicable provisions of the
Design Standards Manual or as otherwise approved by the Architectural Review Board in
writing; it being expressly provided, however, that the Architectural Review Board must approve
a location consistent with the rules and regulations of the United States Post Office Department.
At such time as the United States Post Office Department shall approve and make mail deliveries
within Wicklow Greens 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 constructed on his Lot. All other delivery
boxes or receptacles of any kind, including those for newspapers, milk and other similar home
deliveries, shall also be designed, constructed and located in conformance with the applicable
provisions of the Design Standards Manual or as otherwise approved by the Architectural
Review Board. Developer shall have the right to require that all street or roadside mailboxes
shall be of one particular type or design specified by Developer so long as such designated type
or design meets the rules and regulations of the United States Post Office Department.
8.28 Underground Utilities. All utility lines and facilities shall be located and installed
underground or concealed under or within a building or other on-site Improvements approved by
the Architectural Review Board; provided, however, that the foregoing restriction shall not be
deemed to prohibit the following: (a) temporary electric power and telephone service poles and
water lines which are incident to the ongoing construction of approved permanent improvements,
and, provided further, that the same are removed immediately following the completion of such
construction; (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 Board; ( c) permanent outdoor safety light poles located and installed in
conformance with the applicable provisions of the Design Standards Manual, or as otherwise
approved by the Architectural Review Board.
8.29 Landscaping. Each Lot shall be landscaped in accordance with a landscape plan
which is (a) in conformance with the applicable provisions of and using the plant pallet specified
in the Design Standards Manual and (b) otherwise approved by the Architectural 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.
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. . f' SE~NO~E co. fL h 11 b l'
8.31 Trees. The provIsIons 0 SectIOn 7.18 of thIS ueclarafIOn S a e app Icable to
the building or construction of any single family residential dwelling or other structure or
Improvements on Residential Property and such provisions are incorporated in this Article VIII
by this reference thereto.
8.32 Irrigation SYstems. All landscaped and grassed open areas on Residential
Property (including such areas which are within road rights-of-way adjacent to and contiguous
with the Residential Property) shall be irrigated by means of an automatic underground irrigation
or sprinkling system capable of regularly and sufficiently irrigating all lawns and plantings
within such open areas. The plans and specifications for each such irrigation or sprinkling
system shall be included in and submitted with and reviewed and approved by the Architectural
Review Board as part of the landscape plan required pursuant to the provisions of Section 8.2 of
this Declaration. 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.
8.33 Artificial Vegetation. No artificial vegetation shall be permitted on the portion of
any Lot outside of any building on the Lot.
8.34 Precedence Over Less Stringent Governmental Regulations. In those instances
where the covenants, conditions and restrictions set forth in this Article VIII set or establish
minimum standards in excess of Governmental Regulations, including, without limitation,
building and zoning regulations, the covenants, conditions and restrictions set forth in this Article
VIII, of this Declaration shall take precedence and prevail over less stringent Governmental
Regulations. Conversely, in those instances where such Governmental Regulations set or
establish minimum standards in excess of the covenants, conditions and restrictions set forth in
this Article VIII, the Governmental Regulations shall take precedence and prevail over less
stringent covenants, conditions and restrictions set forth in this Article VIII.
8.35 Waivers. Exceptions and Variances by Developer. Notwithstanding anything to
the contrary set forth in or which may otherwise be implied from the terms and provisions of this
Declaration, Developer specifically reserves exclusively unto itself, for the duration hereinafter
specified, the right and privilege (but Developer shall have absolutely no obligation), upon a
showing of good cause therefor, to: (a) grant waivers with respect to any existing or proposed
future deviation from, or violation or infraction of, the building restrictions specified in this
Article VIII of this Declaration where, in the reasonably exercised good faith judgment and
discretion of Developer, Developer shall determine or decide that such deviation, violation or
infraction is de minimus, minor, or insignificant, and (b) grant waivers of, exceptions to, or
variances from, the building restrictions specifieq in this Article VIII of this Declaration where
special conditions and circumstances exist which are peculiar to a particular Lot and not
generally applicable to other Lots (e.g., because of its unusual size, configuration or location) or
where a literal interpretation or application of any such building restriction to a particular Lot
would be inappropriate, inequitable or otherwise work or result in a hardship or deny such Lot
and the Owner thereof specific rights which are generally enjoyed by other Lots and Owners; it
being expressly provided, however, that, in all cases, Developer, in its exercise of such right and
privilege shall, in its reasonably exercised and good faith judgment and discretion determine or
20
[ffICi/,~ ~LCuRJS
BOOr"'"""l, PAGE
"-.,.;
3532 0792
d 'd h . f h' . . SEtArJNOLE CD. F4 b
eCl e t at Its grant 0 any suc Waiver, exceptIOn or variance slia I nofresult h, represent, e or
constitute a significant deviation of or derogation from (a) the uniform plan of development for
Wicklow Greens at Tuscawilla, (b) the high architectural, ecological, environmental and
aesthetic standards otherwise established for Wicklow Greens at Tuscawilla or (c) the objects and
purposes of this Declaration as hereinabove enumerated in Article II 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, until either (a) the expiration of a period of fifteen (15) years from the
date of the recordation of this Declaration among the Public Records of the County or (b) the sale
by Developer in the ordinary course of business, and not in bulk, of ninety percent (90%) of all
Lots in Wicklow Greens 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 with 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.
c
8.36 Architectural Review Board Approval. Notwithstanding any other provision of
this Declaration to the contrary, no Improvements may be constructed upon any Lot except by
licensed building contractors approved in writing 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 or
equity.
AA g., 7 Lot C. Ovei'aje.. *
r/fY ARTICLE IX
COMMON PROPERTY
9.1 Additional Property. In addition to the Common Property described in Section 5.2 of
this Declaration or included within the term "Common Property" as defined in Article I of this
Declaration, Developer, in its sole discretion, shall have the right to convey to the Association
and the Association shall be obligated to accept any other portion of the Subject Property or any
other real property owned by Developer so long as such property is used or useful for any of the
objects and purposes for which the Association has been created and established. Should
Developer so convey any such additional property, the same shall thereupon become and
thereafter continue to be Common Property which shall be subject to all covenants, conditions,
restrictions, easements and reservations set forth in this Declaration with respect to all other
Common Property.
9.2 Restriction on Use. Subsequent to the conveyance of any Common Property to the
Association by Developer, the Common Property shall, subject only to the easements specified in
;;; ihe mCl.(..,............ Lo +- Govera~e (iM.fJervious Clre0 ~hQJ/ 'lOt etc.eed 7C)~.
21
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BOOK -'-'\PAGE
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3532
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Article XIV of this Declaration, be developed, improvea~~Jl~~a1Rea~'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 Wicklow
Greens 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, title to any Common Property so subdivided,
partitioned, sold, transferred, conveyed, alienated, leased, mortgaged or hypothecated by the
Association without the prior written consent of Developer shall automatically revert to the
Developer upon the filing by Developer among the Public Records of the County of an
appropriate declaration of its intention to accept such reversion. Upon any such reverter, any
restriction upon, subdivision of, lease, mortgage or other interest in the Common Property,
created or granted - by the Association without the Developer's written consent, shall be
terminated and have no further effect on the Common Property.
9.4 Encumbrance as Security. Notwithstanding the provisions of Section 9.3 above, the
Association shall have the right in accordance with this Declaration and its Articles of
Incorporation and By-Laws to (a) borrow money for the purpose of improving, replacing,
restoring or expanding the Common Property and to mortgage or otherwise encumber the
Common Property solely as security for any such loan or loans and (b) engage in purchase
money financing with respect to personal property and equipment purchased by the Association
in connection with the performance of its duties and obligations pursuant to this Declaration and
to secure the payment of the purchase price therefor by the encumbrance of the personal property
and equipment so purchased; it being expressly provided, however, that any such mortgage or
other encumbrance shall (i) be subject in all respects to the terms and provisions of this
Declaration and any amendments hereto and, (ii) be made subordinate to the rights of the City or
any other governmental agency in and to the Common Property, including but not limited to the
stormwater management tracts, established either pursuant to this Declaration or any Plat. In no
event shall the Association be entitled or empowered to mortgage or otherwise encumber any
easements granted to it.
9.5 Use by Owners. Subject 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 title to each and every Lot within the Subject Property; subject, however, at
22
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.crt I j.,.;...urL,)
800K ,. PAGE
3532
0794
all times to the terms, provisions, covenants, conditions, rest~~IljQ.~f~fi\€nts and reservations
set forth in this Declaration and/or the Plat including, without limitation, the following:
(a) the right ofthe Association to suspend the right, privilege and easement of any
Owner and the members of his family, tenants, guests or other invitees to use the
Common Property or 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 be made by the Association, or a committee duly
appointed by the Association for that purpose, only after appropriate notice and hearing
given and held in accordance with the By-Laws of the Association. Notwithstanding
anything herein set forth to the contrary, however, the Association shall have no right,
power or authority hereunder to suspend or otherwise unreasonably interfere with any
Owner's right, privilege and easement to use the Common Streets and Roads for ingress
and egress to and from such Owner's Lot; it being expressly provided, however, that
temporary interference for purposes of appropriate identification at and clearance through
Wicklow Greens 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.
(b) The right of the Association to limit the number of guests of Owners who may
use the Common Property from time to time and to limit the use of the Common Property
by persons not in possession of a Lot at a particular time but owning a sufficient interest
therein for classification as an Owner and member of the Association.
(c) The right of the Association to establish, promulgate and enforce reasonable
rules and regulations pertaining and with respect to the use of the Common Property
pursuant to Subsection 12.3.7 of this Declaration.
(d) The right of the Association to charge reasonable admission and other fees to
or for the use of the Common Property, other than for the use of easements established,
created or declared pursuant to this Declaration or the Plat.
(e) The right of the Association to take such steps as are reasonably necessary to
maintain, preserve and protect the Common Property.
9.6 Delegation of Use. Any Owner shall be entitled to and may delegate his right,
privilege and easement to use and enjoy the Common Property to the members of his family, his
tenants, guests 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
23
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/"";. L..\.1 \:1"
BOO: ' PAGE
3 5 3 2 0 7 9-5
reside on his Lot, the Association shall be entitled, after theSl~l~~BtibJtOaidi. 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 Waiver 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 the rules and
regulations of the Association by (a) the voluntary waiver of the right, privilege and easement for
the use and enjoyment of the Common Property, (b) the abandonment of his Lot or (c) by
conduct which results in the Association's suspension of such right, privilege and easement as
provided in Section 9.5 of this Declaration.
9.8 Administration and Care. The administration, regulation, care, maintenance, repair,
restoration, replacement, preservation and protection of the Common Property shall be the
responsibility of the Association as more particularly provided in Article XII of this Declaration
and in the Articles of Incorporation of the Association.
9.9 Rules and Regulations. In addition to the foregoing restrictions on the use of
Common Property, the Association shall have the right, power and authority, subject to the prior
written consent and approval of Developer, to promulgate and impose reasonable rules and
regulations governing and/or restricting the use of Common Property and to thereafter change,
modify, alter, amend, rescind and augment any of the same; provided, however, that no rules or
regulations so promulgated shall be in conflict with the provisions of this Declaration. Any such
rules and regulations so promulgated by the Association shall be applicable to and binding upon
all Common Property and all Owners and their successors and assigns, as well as upon all
members of their families, their tenants, guests, and other invitees and upon all other parties
claiming by, through or under such Owners.
9.1 0 Community Wall. The Owner of any Lot burdened by a 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. The Association shall be responsible for the installation, maintenance,
restoration, and removal of (i) the Community Wall and (ii) the landscaping located within any
wall easement to the exterior of the Community Wall. The Association shall have the right to
enter each Lot on which the Community Wall is situated to install, maintain, restore, and remove
the Community Wall.
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
24
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3532
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to this Declaration, including, without limitation, those rJrWt~L~litqhfJnance of the Common
Property, including those Assessments for maintenance of the wall easements shall not be
deemed to be a substitute for or otherwise relieve any Owner of the Subject Property from paying
any other taxes, fees, charges or assessments imposed by the City, or any other governmental
authority.
ARTICLE X
ASSESSMENTS
1 0.1 Assessments for Common Expenses. In order to provide for and assure the
availability of the funds necessary to pay Common Expenses as may be associated with and
otherwise necessary for the Association to perform its duties and obligations pursuant to and in
accordance with this Declaration and its Articles of Incorporation and By-Laws and to otherwise
carry out and accomplish the objects and purposes for which the Association has been created
and established, each Lot and each Owner of such Lot shall, by the acceptance of a deed or other
conveyance, of title to his Lot, whether or not it shall be expressly stated in any such deed or
other conveyance, be obligated for and be deemed to have covenanted and agreed to pay to the
Association all Assessments, whether the initial fee, Regular Assessments, Capital Expenditure
Assessments, Special Assessments or Individual Lot Assessments, established, levied, made and
imposed by the Association pursuant to this Declaration. All such Assessments shall be
established, levied, made, imposed, enforced and collected pursuant to the provisions of this
Declaration and the Articles of Incorporation, By-Laws and rules and regulations of the
Association.
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 fonned, 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,
management, regulation, care, maintenance, repair, restoration,
improvement, preservation, and protection of the Common Property.
administration,
replacement,
(c) Reasonable reserves for repairs to and replacement of the Common Property.
(d) Those incurred for utility services to the Association and the Common
Property, including, without limitation, electric power for irrigation systems and
payments to Florida Power for street lights
25
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3532
079 7
(e) Those incurred for garbage and trasBEcl,Ad~&a.&b.oval and disposal services
provided to the Association and the Common Property (but not those provided to Lots).
(f) Those incurred for Common Property landscape maintenance and
replacement, including irrigation.
(g) Those incurred as premiums on or for any insurance obtained by the
Association, including, without limitation, fire, casualty, liability, health, medical,
workman's compensation and other insurance.
(h) All taxes paid by the Association, including, without limitation, ad valorem
real and personal property taxes on the Common Property, if any.
(i) Those incurred in connection with any payments by the Association for the
discharge of any lien or encumbrance upon the Common Property or any portion thereof.
(j) Those incurred by the Architectural Review Board in the performance of its
duties and obligations pursuant to this Declaration, including, without limitation, the fees
of or other compensation paid to consultants to the Architectural Review Board,
including architects, 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)Those incurred in connection with 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 with capital expenditures as described in Section
10.9.
10.3 Use of Assessments. The funds received and derived from any and all
Assessments made by the Association shall be used exclusively for the performance of the duties
and obligations of the Association pursuant to this Declaration, the payment of Common
Expenses, the operation and administration of the Association and the promotion of the health,
safety, and general welfare of the residents of Wicklow Greens at Tuscawilla and for the benefit
of Wicklow Greens at Tuscawilla Community generally.
10.4 Prohibited Use of Assessments. Notwithstanding anything to the contrary set
forth in or otherwise implied from the terms and provisions of this Declaration, generally, or
Sections 10.1 and 10.2 of this Declaration, in particular, the Association shall not have the power
or authority to use, make, levy, impose, enforce and collect and is hereby expressly prohibited
26
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BOOK JE
3532
0798
from using, making, levying, imposing, enforcing and ~~1~8h~glk9-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 Wicklow Greens at Tuscawilla or its development or operation. If,
notwithstanding the foregoing prohibition, the Association shall attempt to use, make, levy,
impose, enforce and collect any Assessment for such prohibited purpose or use, Developer and
any Lot or other property owned by Developer within Wicklow Greens at Tuscawilla shall be
and are hereby exempted from any such Assessment or attempted Assessment.
10.5 Lien for Assessments. All Assessments established, made, levied, and imposed
by the Association pursuant to this Declaration, together with interest, late charges, costs and
expenses, including attorneys' fees associated with the collection thereof (whether suit be
brought or not), shall be a charge, and a continuing lien upon each Lot against or with respect to
which any such Assessment is made or levied.
10.6 Personal Liabilitv 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.
10.7 Tvpes of Assessments. The Association is hereby authorized and empowered to
establish, make, levy, impose, enforce and collect (i) an initial fee, (ii) Regular Assessments,
(iii) Capital Expenditure Assessments, (iv) Special Assessments, and (v) Individual Lot
Assessments, all as described below.
The initial fee shall be collectible from the Owner of a Lot upon the Owner's acquisition
of title to the Lot from Developer. Developer shall not be obligated to pay an initial fee as to any
Lot. The initial fee shall be TWO HUNDRED FIFTY AND NOll 00 DOLLARS ($250.00) for
calendar year 1998. Subsequent to calendar year 1998, the amount of the initial fee for calendar
year 1999 and each successive calendar year thereafter shall be established and determined by the
Board which will use its best efforts to establish the fee no later than thirty (30) days prior to the
beginning of each calendar year. The initial fees shall be deposited into a separate interest
bearing bank account to be held in trust by the Association and, accordingly, same may 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.
27
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BOOK V PAGE
3532
0799
10.8 Regular Assessments. The Association ~~~~ Cflbcf4s 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:
1 0.8.1 Rate of Regular Assessments. The amount of the Regular Assessment for
calendar year 1998 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
forty-eight (48) which is the total number of Lots the Developer currently plans to develop in
Wicklow Greens 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.
10.8.2 Developed vs. Undeveloped Lots. Lots upon which construction has
commenced ("constructed Lots") derive a greater benefit from Common Property and
Assessments than do the Lots which are not being constructed upon. F or this reason, the
Association in establishing the rate of Regular Assessments shall assess unconstructed Lots for
an amount less than constructed Lots. In this regard, the Regular Assessments of unconstructed
Lots shall not exceed twenty percent (20%) of the Regular Assessments of constructed Lots. For
purposes of this provision, construction shall be deemed to have commenced as to any Lot upon
the earlier of (i) the commencement of construction of vertical Improvements pursuant to the
appropriate and necessary governmental approvals and permits, and (ii) the conveyance of said
Lot by the Developer to a third party person.
10.8.3 Notice of Regular Assessments. For each calendar year the Association
shall provide written notice to each Owner of the amount of the Regular Assessment established,
made, levied and imposed for that calendar year and the dates upon which installments for the
same shall become due and payable.
10.8.4 Commencement of Regular Assessments. Unless otherwise determined by
the Board of Directors of the Association, Regular Assessments shall commence as to all Lots on
the first day of the month following the first conveyance of a Lot by Developer to any third-party
individual Owner.
10.8.5 Insufficient Regular Assessments. In the event that the Association shall
determine during any calendar year that the Regular Assessment established for such calendar
year is or will become inadequate or insufficient to meet all Common Expenses for such calendar
year, for whatever reason, the, Association shall be entitled to immediately determine the
28
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80~ PAGE
3532
0800
approximate amount of the deficiency or inadequacy of the Re~&tffitOA.~~sfiknt 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 who are voting in person or by proxy
at a meeting of the Association duly called for such purpose and of which written notice
specifying the amount of a proposed increase in the Regular Assessment over the Regular
Assessment for the prior fiscal year is sent to each member of the Association at least thirty (30)
days in advance of such meeting.
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 of
Directors of the Association, in its reasonable discretion. Such installments shall be due and
payable without any further notice other than that notice specified in Subsection 10.8.3 above.
10.8.8 Developer Option. Notwithstanding anything set forth in this Declaration
to the contrary, the Developer shall 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 this Subsection 10.8.9 or otherwise, shall be deposited by the Association in
a separate interest bearing bank account to be held in trust by the Association for the purpose or
purposes for which the same are collected and are to be segregated from and not commingled
with any other funds of the Association. The account balance shall be turned-over to the
Association at such time as the Class B membership ceases pursuant to Section 13.6.2. 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
29
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3532
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paid for by the Declarant as the Developer of Wicklow Greens at Sft1!/t,q~H~' iM 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, in whole or in part, the cost of any
installation, construction or reconstruction, or the unexpected repair or replacement of any capital
improvement to or upon the Common Property, or the cost of the initial purchase or any
subsequent unexpected repair or replacement of any equipment or personal property purchased,
repaired or replaced by the Association in furtherance of the discharge of its duties and
obligations pursuant to this Declaration (the "Capital Expenditure Assessments"); provided,
however, that any such Capital Expenditure Assessment shall have the prior approval of greater
than fifty percent (50%) ofthe 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 expenditure and the amount of the proposed Capital
Expenditure Assessment is sent to all members of the Association at least thirty (30) days in
advance of such meeting. All sums collected as Capital Expenditure Assessments shall be used
only for the capital improvements or purchases for or with respect to which such Capital
Expenditure Assessment has been approved and such sums shall be deposited by the Association
in a separate interest bearing bank account, not commingled with any other funds of the
Association, to be held in trust by the Association for such purposes.
10.10 Special Assessments. In addition to other Assessments for which provision is
made in this Declaration, the Association shall be and hereby is authorized and empowered to
establish, make, levy, impose, enforce and collect from time to time special assessments for any
purpose directly related to the discharge of its duties and obligations pursuant to this Declaration
(the "Special Assessments"), provided, however, that any such Special Assessment shall have the
prior approval of greater than fifty percent (50%) of the total voting power of the members of the
Association who are voting in person or by proxy at a meeting of the Association duly called for
such purpose. 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:
(a) costs and expenses incurred by the Association in bringing a particular Owner
or his particular Lot into compliance with the provisions of this Declaration, including
any action taken or cost or expense incurred by the Association to cure and eliminate any
violation of or noncompliance with the provisions of this Declaration, following the
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failure of such Owner, within fourteen (14) days %118~gOwtttten notice from the
Association of the nature of the violation of or non-compliance with this Declaration, to
cure or remedy such violation or noncompliance;
(b) costs and expenses, including reasonable attorneys' fees, whether or not suit
be brought, incurred by the Association in the enforcement of the provisions of this
Declaration against a particular Lot or the Owner of such Lot;
(c) costs and expenses incurred by the Association in furnishing or providing
labor, services and materials which benefit 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 Quorum for Action Authorized Under Subsection 10.8.6 and Sections 10.9 and
10.10. The quorum required at any meeting of the Association for any action authorized
pursuant to Subsection 10.8.6 and Sections 10.9 and 10.10 of this Declaration shall be as follows:
At the first meeting called for the purpose of taking any such action the presence at such
meeting, in person or by proxy, of members of the Association entitled to cast a majority of the
total voting power of the Association shall constitute a quorum. If the required quorum is not
forthcoming at such first meeting, a subsequent meeting may be called for the same purpose,
subject to the notice requirements set forth in said Subsection 10.8.6 and Sections 10.9 and
10.10, and the required quorum at any such subsequent meeting shall be one-half (112) 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 rights under Section 10.8.8, all Assessments shall be uniformly fixed at an equal
amount per Lot and shall be collected on a uniform basis from the Owner of each Lot.
10.14 Exempt Property. Any property, other than a Lot, which is owned by or dedicated
to and accepted by any governmental body or agency, shall be exempt from any Assessments.
All property otherwise exempted from taxation by the laws of the State of Florida or the United
States of America shall also be exempt from all Assessments; but only upon the same terms,
subject to the same conditions and only to the extent of any such exemption from taxation.
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
31
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recorded prior to the recording by the Association of a clai~~~~k!t{"'. cflliinquent Assessments
in the Public Records of the County. The sale, transfer or conveyance of title to a particular Lot
shall not affect the effectiveness, viability or priority of any Assessment lien or the personal
liability of the Owner of such Lot for the payment of any Assessment; provided, however, that
the sale, transfer or conveyance of title to a particular Lot pursuant to judicial proceedings in
foreclosure of, or pursuant to deed in lieu of foreclosure related to, a bona fide first mortgage on
such Lot held by an Institutional Lender shall extinguish the lien of such Assessments other than
those evidenced by the recording of a claim of lien prior to the recording of the mortgage (but not
the personal liability of the Owner of such Lot) as to payments on account thereof which became
due and payable prior to such foreclosure sale, transfer or conveyance. However, no such
foreclosure sale, transfer or conveyance shall relieve such Lot or the Owner of that Lot from the
personal obligation or liability for the payment of any Assessments accruing or becoming due
and payable subsequent to such sale, transfer or conveyance from the lien thereof.
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 shall be entitled to
charge and collect a reasonable fee for and as a condition precedent to the issuance of any such
certificate not to exceed Twenty-five and No/IOO Dollars ($25.00).
10.17 No Defenses or Offsets. All Assessments shall be payable in full and at the times
due. No defenses or offsets against the payment of such amount shall be permitted for any
reason whatsoever, including, without limitation, any claim by an Owner that (i) the Association
is not properly exercising its rights and powers or performing or discharging its duties and
obligations as provided in this Declaration or its By-Laws; (ii) an Owner and his family has
made or elected to make no use of the Common Property; (iii) the Owner and his family have
otherwise 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-P A YMENT OF ASSESSMENTS
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11.1 Delinquency. Any Assessment establIshed, made, levreu-'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. Additionally, any such unpaid Assessment shall bear interest from the date of
delinquency at the highest rate then allowed by the laws of the State of Florida.
11.2 Notice of Lien. The Association shall, at any time following the expiration of a
period of ten (l0) days following the aforesaid delivery of the notice of delinquency, be entitled
to cause a Claim of Lien for such delinquent Assessments to be filed among the Public Records
of the County. Any such Claim of Lien shall, among other things, state and identify the legal
description of the Lot against or with respect to which the lien is claimed, the name of the record
Owner of such Lot as best known to the Association as determined from its records, the amount
of the lien claimed, including the amount of interest accrued and the rate of accrual, late charges,
and costs and expenses associated with 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
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3532 0805
recovery and collection of any delinquent Assessment for the pa1~~WFbf ~ieh..he is personally
obligated.
11.5 Judgment Amount. Whether in an action at equity to foreclose the lien of the
Association for delinquent Assessments or in an action at law for the recovery and collection of
any such delinquent Assessment from the Owner of the Lot personally obligated for the
payments of the same, the Association shall be entitled to recover in such proceedings the
amount of such delinquent Assessment, together with late charges and interest thereon, if any,
and such costs and expenses, including reasonable attorneys' fees incurred either at the trial level
or on appeal, associated with the enforcement, recovery and collection thereof as may be
awarded by the Court.
11.6 Remedies Cumulative. The remedies herein provided for the collection and
enforcement of Assessments and the foreclosure of the lien therefor shall be cumulative and not
alternative; it being expressly provided that any suits brought for the collection of assessments
against the Owner personally obligated and liable for the payment of the same and for the
foreclosure of the lien herein provided against the Lot involved may be brought simultaneously
as separate counts in the same action.
11.7 Satisfaction of Lien. Upon payment or other satisfaction of (a) all delinquent
Assessments specified in the Claim of Lien, (b) interest, late charges, costs and expenses of
collection, including attorneys' fees, as aforesaid, which have accrued to the date of such
payment or satisfaction, and (c) all other assessments which have become due and payable with
respect 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
filed 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 NOIlOO 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 Obiects 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
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3532 0806
Association shall also have such duties and powers as are,SFe~iS~bli,Jeiynmposed and conferred
upon it pursuant to this Declaration, including, without limitation, such duties and powers as may
be reasonably imposed from, necessary for and incidental to the accomplishment of the objects
and purposes for which the Association has been created and established.
c
12.3 Duties of Association. The Association, acting by and through its Board of
Directors, shall, in addition to those general and specific duties, responsibilities and obligations
imposed upon it by law and those specified in its Articles of Incorporation and By-Laws, have
the following specific duties, responsibilities and obligations:
12.3.1 Payment of Common Expenses. To pay all Common Expenses and any
other expenses for which Assessments are made associated with the management and
administration of the business and affairs of the Association and all other Common Expenses and
any other expenses for which Assessments are made for which provision is made in this
Declaration.
12.3.2 Levv and Collection of Assessments. To establish, make, levy, impose,
enforce and collect all Assessments for which provision is made in this Declaration or which
shall otherwise be necessary to provide and assure the availability of such funds as may be
reasonably necessary to pay all Common Expenses or otherwise conduct the business and affairs
of the Association.
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 Common Property and, consistent with their respective duties,
responsibilities and liabilities, provide adequate insurance protection on and for the Association
itself and its officers and directors, as well as for the members of the Architectural Review Board
established pursuant to this Declaration.
12.3.5 Preserve and Enhance Beauty of Wicklow Greens at Tuscawilla. To
preserve, protect, maintain and enhance the appearance and natural beauty of the Common
Property and Wicklow Greens 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 Wicklow Greens at Tuscawilla and Wicklow Greens at Tuscawilla Community
generally; provided, however, that the Association shall be and hereby is specifically prohibited
from engaging in any political activity or any other activity whereby its status as a corporation
not-for-profit or its exemption from Federal or state income taxation, if any, shall be forfeited or
jeopardized.
12.3.7 Establish and Enforce Rules and Regulations. To make, establish,
promulgate and publish, and to enforce such rules and regulations for the protection and
35
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governing the use of Common Property as the Board off:>~W!85r~Q,ft!he 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 Operate Without Profit. To operate without profit for the sole and
exclusive benefit of its members and Wicklow Greens 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 therein, 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 ofIncorporation and By-Laws of the Association.
12.4.3 Establish Reserves. To create, establish, maintain, and administer such
capital expenditure, reserves and other reserve funds or accounts as shall, in the discretion of the
Board of Directors, be reasonably necessary to provide and assure the availability of funds
necessary for the care, maintenance, repair, replacement, restoration, preservation, and protection
of all Common Property, including all easements and facilities, and for such other purposes as
the Board of Directors of the Association, in its reasonable discretion shall be deemed necessary
or appropriate.
against it.
12.4.4 Sue and Be Sued. To sue and be sued and to defend any suits brought
12.4.5 Borrow Money. Subject to the limitations specified in Section 12.5 of this
Declaration and in the Articles of Incorporation of the Association, to borrow such money as
may reasonably be required to discharge and perform the duties, responsibilities and obligations
imposed upon the Association pursuant to this Declaration and the Articles of Incorporation of
the Association.
36
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3532
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12.4.6 Employ and Contract. To employ suC1'1 Ipersohs'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.~rovide 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
Wicklow Greens at Tuscawilla and Wicklow Greens at Tuscawilla Community generally,
including, without limitation, internal security and protection services, garbage and trash pickup
and disposal services, cable television services and street lighting services.
12.4.9 Enforce Declaration. To take such steps as may be necessary to enforce
the provisions of this Declaration, including, without limitation the employment of counsel and
the institution and prosecution of litigation to enforce the provisions of this Declaration
including, without limitation, such litigation as may be necessary to collect assessments and
foreclose liens for which provisions are made in this Declaration.
12.4. 1 o Surface Water or Stormwater Management System. The Association shall
be responsible for the maintenance, operation and repair of the Surface Water or Stormwater
Management System including, but not limited to, the roadway under-drains. Maintenance of
the Surface Water or Stormwater Management System(s) including, but not limited to, the
roadway 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 and the City. 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 under-drains, shall be as permitted, or if modified as approved by the St.
Johns River Water Management District and the City; provided, the Owners of Lots 10, 11, and
14 through 30, shall install and maintain the rear yard drainage swale on each such Lot pursuant
to Section 7.19 of this Declaration.
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.
37
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(a) Contracts for a Term in Excess or56~~0VeM? Ffhe 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) Pledge of Assessment Rights. 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 particular amount or within a
particular time so as to effectively divert from the Association and its Board of Directors
the right, duty and discretion to establish, make, levy, impose, enforce and collect
Assessments in such amounts and within such time periods as the Board of Directors of
the Association, in its discretion, shall deem to be necessary and reasonable. It is
expressly provided, however, that the foregoing limitation and restriction upon the
pledge, assignment or encumbrance of the assessment rights herein contained shall not
preclude the Association from pledging or making an assignment of or otherwise
encumbering any Assessment which is then payable to or which will thereafter, in the
ordinary course of the Association's business, become payable to the Association
provided that any such assignment, pledge or encumbrance, though then presently
effective, shall allow and permit any such Assessments to continue to be paid to and used
by the Association as set forth in this Declaration unless and until the Association shall
default on the repayment of the debt which is secured by such pledge, assignment or
encumbrance.
(c) Sale or Transfer of Real Property. The sale, transfer or other disposition,
whether or not for consideration, of any real property owned by the Association as
Common Property; provided, however, in no event shall the Association be entitled or
empowered to sell, conveyor transfer any real property constituting Common Property
transferred and conveyed by Developer to the Association pursuant to the provisions of
Section 9.1 of this Declaration without first receiving the prior written consent of
Developer. 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 Wicklow Greens 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. The Association shall not
sell, convey, or transfer its interest in the Surface Water or Stormwater System.
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(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 prohibited; 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.
ARTICLE XIII
ASSOCIATION, MEMBERSHIP AND VOTING RIGHTS
13.1 Membership. Every Owner shall automatically and mandatorily be a member of
the Association upon becoming an Owner. Additionally, Developer shall automatically and
mandatorily be a member of the Association. Membership may not be refused, waived or
surrendered, but a member's voting rights and use and enjoyment of the Common Property may
be regulated or suspended as provided in this Declaration and the Articles of Incorporation, By-
Laws and rules and regulations of the Association.
13.2 Transfer of Membership. Membership in the Association shall be appurtenant to
and may not be separated from the ownership interest of an Owner in the Lot owned by such
Owner. The membership of an Owner in the Association shall not be transferred, pledged or
alienated in any way, except that such membership shall automatically be transferred and
assigned to a transferee upon the transfer of the ownership interest required for membership in
the Association. The Association shall have the right to record any such automatic transfer upon
the books and records of the Association without any further action or consent by the transferring
Owner or any transferee Owner. Any attempt to make a prohibited transfer of membership,
however, shall be void and of no force and effect and will not be reflected upon the books and
records of the Association.
13.3 Members' Rights. The rights of every member of the Association shall be 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. Voting Rights. An Owner's right to vote shall vest
immediately upon such Owner's qualification for membership as provided in this Declaration
and the Articles of Incorporation and 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 ofIncorporation and By-Laws of the Association.
13.6 Classes of Voting Membership; Number of Votes. The Association shall have
two (2) classes of voting membership as follows:
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3532 081 I
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13.6.1 Class A. Class A members shall be all oWners of Lots, wIth the exception
of Developer, until Class B membership has been converted to Class A membership, as provided
in Subsection 13.6.2 of this Declaration and in the Articles of Incorporation of the Association,
and after such conversion all Owners of Lots classified as Residential Property shall be Class A
members. Class A members shall be entitled to one (1) vote for each Lot in which they hold the
ownership interest required for membership; provided, however, that in the event that (i) two (2)
or more contiguous Lots or (ii) one (1) Lot and a portion contiguous thereto of another Lot are
owned in common by the same Owner and combined, developed and improved by such Owner
as a single unified residential homesite, the Owner of any such combination of Lots shall only be
entitled to one (1) vote for each such combination of Lots so owned. When more that one person
or entity holds the ownership interest required for membership in the Association, each such
person or entity shall be a member, but the single vote of such members with respect to the Lot
owned by them shall be exercised as those holding a majority interest in the Lot determine.
However, in no event shall more than one (1) Class A vote be cast with respect to any Lot which
is owned by more than one person or entity. The Association may, but shall not be obligated to,
recognize the vote or written assent of any co-o\\ner of a Lot, but the Association shall recognize
the vote or written assent of a particular co-owner who or which is designated by a majority
interest of all co-owners entitled to cast the vote attributable to the Lot owned by such co-
owners, provided that such written designation shall be delivered to the Association not less than
twenty-four (24) hours prior to the taking of the particular vote in question.
,-....
",",,,
13.6.2 Class B. The Class B member shall be the Developer. The Class B
member shall be entitled to ten (10) votes for each Lot in which Developer holds the ownership
interest required for membership; provided, however, that Class B membership shall cease and
be converted to Class A membership when the total votes outstanding in Class A membership
exceeds the total votes outstanding in Class B membership, at which time Class B membership
shall be terminated and the Class B member shall automatically be entitled and required to vote
as a Class A member.
13.7 Intentionally Blank . Approval by Members. Unless elsewhere otherwise
specifically provided in this Declaration or the Articles of Incorporation or By-Laws of the
Association, any provision of this Declaration, of the Articles of Incorporation and By-Laws of
the 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:
(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.
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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
Subject Property hereinafter specified:
14.1.1 Utility Easements. There are hereby created, declared, granted and
reserved for the benefit of Developer, the City, the Association, all Owners and any public or
private providers of utility services approved by Developer in writing to provide service 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 utility 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 television, and other underground electronic services.
14.1.2 Drainage Easements. There is hereby created, declared and reserved for
the benefit of Developer, the City, the Association and all Owners a non-exclusive easement for
storm water collection, retention, detention and drainage under, over, upon and within all
drainage easements, ponds and tracts (including Tract A) shown on the Plat (except the drainage
easements at the rear of Lots 10, 11 and 14 through 30) or otherwise reserved, declared or created
pursuant to this Declaration, together with an easement and license in favor of the Developer, the
City and the Association only to enter upon such areas for the purposes of constructing,
installing, inspecting, maintaining, repairing and replacing any and all storm water drainage
systems, improvements and facilities from time to time located therein or thereon. Additionally,
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.
The Owners of Lots 10, 11, and 14 through 30, who acquire such Lots from
Developer shall construct drainage swales within portions of the Drainage Easements identified
on the Plat along the rear of each Lot, for the purpose of managing and containing the flow of
excess surface water, pursuant to the plans approved by the City. Each Owner, including
builders, shall be responsible for the maintenance, operation and repair of the drainage swales on
their respective Lots. Maintenance, operation and repair shall mean the exercise of practices,
such as mowing and erosion repair, which allow the drainage swales to provide drainage, water
storage, conveyance or other stormwater management capabilities as permitted by the St. Johns
River Water Management District and the City. Filling, excavation, construction of fences or
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otherwise obstructing the surface water flow in the drainage swales is pron1l51tea: No alteration
of the drainage swales shall be authorized and any damage to any drainage swales, whether
caused by natural or human-induced phenomena, shall be repaired and the drainage swales
returned to their former condition as soon as possible by the Owner having responsibility for the
maintenance of the damaged drainage swales.
14.1.3 Intentionally Blank. Wall Easements. There is hereby created, declared,
granted and reserved for the benefit of Developer and the Association an easement over and upon
all Wall Easement areas shown on the Plat, and such portion of Wicklow Way and Ashford
Drive upon which the Community Wall is constructed, for the purposes of erecting, constructing,
installing, inspecting, maintaining, repairing and replacing the Community Wall.
14.1.5 Landscape Easements. There is hereby created, declared, granted and
reserved for the benefit of Developer and the Association an easement for landscaping purposes
over and upon portions of Wicklow Way and Ashford Drive that are improved with landscaping,
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.
14.1.6 Conservation Easement. It is hereby established that the Conservation
Easement shown on the Plat are permanent, private Conservation Easement in perpetuity, as
defined in Section 704.06, Florida Statutes (1997), for the benefit of Developer, the S1. Johns
River Water Management District (the "District"), the City 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 Easement and, as to the District, will warrant and
defend the same against the lawful claims of all persons whomsoever. The purpose of the
Conservation Easement is to assure that the lands su~jected to the Conservation Easement 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 activity on or use of the Conservation Easement inconsistent with the
purpose of the Conservation Easement is prohibited. Without limiting the generality of
the foregoing, the following activities and uses are expressly prohibited: (i) constructing
or placing buildings, roads, signs, billboards or other advertising, utilities or other
structures on or above the ground, (ii) dumping or placing soil or other substance or
material as landfill or dumping or placing of trash, waste or unsightly or offensive
materials, (iii) removing or destroying trees, shrubs, or other vegetation, (iv) excavating,
dredging or removing loam, peat, gravel, soil, rock or other material substances in such a
manner as to affect the surface, (v) surface use, except for purposes that permit the land or
water area to remain predominantly in its natural condition, (vi) activities detrimental to
drainage, flood control, water conservation, erosion control, soil conservation, or fish and
wildlife habitat preservation, (vii) acts or uses detrimental to such retention of land or
water areas, (viii) acts or uses detrimental to the preservation of any part of Conservation
Easement having historical or archaeological significance.
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(b) Developer reserves unto itself, and its ~~~h9. <fihf assigns, all rights
accruing from its ownership of the lands subjected to the Conservation Easement,
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 Easement.
(c) Developer, subject to the reasonable approval by the City, by a recorded
instrument may extend the benefit of the Conservation Easement 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 with respect to any adjoining
lands, or (iii) any association, non-profit corporation, trust, or other organization that
maintains similar preservation areas in the Tuscawilla development, or (iv) 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 Easement 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 Easement does not grant any right of access or entry to the
area of the Conservation Easement 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 Easement is situated, who has a
reasonable right of entry to the part of the Conservation Easement situated on such Lot
for any purpose not inconsistent with the maintenance of the Conservation Easement for
its intended purposes.
(e) To accomplish the purposes stated herein, Grantor conveys the following
rights to the District and the City: (i) to enter upon and inspect the lands subjected to the
Conservation Easement 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 Section 14.1.6, (ii) to proceed at law or in equity to enforce
the provisions of this Section 14.1.6 and the covenants set forth herein, and require the
restoration of areas or features of the lands subjected to the Conservation Easement that
may be damaged by any activity inconsistent with the Conservation Easement.
(f) The District and the City may enforce the terms of this Section 14.1.6 at their
discretion, but if Developer breaches any term of this Section 14.1.6 and the District and
the City do not exercise their rights hereunder, the District and the City's forbearance
shall not be construed to be a waiver by the District and the City of such term, or of any
subsequent breach of the same, or any other term hereof, or of any of the District and the
City's rights hereunder. No delay or omission by the District and the City 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 ofthis Section 14.1.6.
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(g) As to the District and the City only, Yii~I~~~P.cftlthe Lot subject to the
Conservation Easement 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
Easement. Neither Developer, nor any person or entity claiming by or through
Developer, shall hold the District or the City liable for any damage or injury to person or
personal property which may occur on the lands subjected to Conservation Easement.
(h) Nothing contained herein shall be construed to entitle the District and the City
to bring any action against Developer for any injury to or change in said lands resulting
from natural causes beyond Developer's control, including, without limitation, fire, flood,
storm and earth movement, or from any necessary action taken by Developer under
emergency conditions to prevent, abate or mitigate significant injury to the aforesaid
lands resulting from such causes.
14.1.7 Intentionally BlankConstruction and Sales 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 sales agents and sales representatives as well
as to builders or building contractors approved by Developer for the construction of residences
within Wicklow Greens at Tuscawilla, an easement for construction activities upon Residential
Property and an easement for sales activities and signs on Residential Property and for the
maintenance on Residential Property from time to time of model centers in which and from
which Developer and its authorized sales agents and sales representatives and approved builders
and building contractors may engage in exhibit, sales and administrative activities of a
commercial nature on a temporary basis during the period of the development of and
construction within Wicklow Greens at Tuscawilla, provided, however, that such exhibit, sales
and administrative activity shall be conducted from and within buildings constructed as single
family residential dwellings which are temporarily used for such exhibit, sales and administrative
activities and which are thereafter to be sold, used and occupied as single family residential
dwellings. The location of such model centers within Wicklow Greens at Tuscawilla may be
changed from time to time by Developer, in its sole and absolute discretion.
14.J .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.
14.1.10Common 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 Subject 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.
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Notwithstanding the foregoing, Developer reserves unto Pt~~i~%idct6. tHe Association the right to
dedicate the Common Streets and Roads to the City, pursuant 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 Developer or
Association may install guard houses and/or limited access gates or facilities at the entrance to
the Subject Property on Ashford Drive, in the sole discretion of Developer or the Association,
and the costs of repair, maintenance and replacement of such shall be Common Expenses.
c
14.2 Future Easements. There is hereby reserved to Developer and its successors and
assigns, together with the right to grant and transfer the same, the right, power and privilege to, at
any time hereafter, grant to itself, the Association, the City, or any other parties such other
further and additional easements as may be reasonably necessary or desirable, in the sole opinion
and within the sole discretion of Developer, subject to the reasonable approval of the City, for the
future orderly development of Wicklow Greens at Tuscawilla in accordance with the objects and
purposes set forth in this Declaration. Any such easement( s) shall be recorded in the Public
Records of the County. It is expressly provided, however, that no such further or additional
easements shall be granted or created over and upon Residential Property pursuant to the
provisions of this Section 14.2 if any such easement shall unreasonably interfere with an owner's
plans to use or develop his Lot as a single family residential home site. The easements
contemplated by this Section 14.2 may include, without limitation, such easements as may be
required for utility, drainage, road right-of-way or other purposes reasonably related to the
orderly development of Wicklow Greens 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.
ARTICLE XV
ARCHITECTURAL AND LANDSCAPE CONTROL
15.1 Reservation of Architectural and Landscape Control. In order to ensure that the
development of Wicklow Greens 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, Wicklow Greens 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.
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Architectural Review Board members are appointed b~~~8.gLk~e ~hhe pleasure of, the Board.
The Board from time to time may designate alternative members, to serve in the absence of any
regular member. Architectural Review Board members need not be Owners, Directors of the
Association or Association members. No Architectural Review Board member is entitled to
compensation for services performed; but the Board may employ independent professional
advisors to the Architectural Review Board and allow reasonable compensation to such advisors
from Association funds. Any Architectural Review Board action may be taken by a simple
majority of its members, with or without a formal meeting or joint deliberation, so long as each
member is informed in advance of the action proposed. Notwithstanding anything contained
herein to the contrary, until such time as the Developer has divested itself of title to all of the
Lots, it shall have the right to choose all three (3) Architectural Review Board members
o
15.3 Architectural Review Board Authority. The Architectural Review Board has full
authority to regulate the exterior appearance of the Lots to: (i) assure harmony of external design
and location in relation to surrounding buildings and topography; and (ii) to protect and conserve
the value and desirability of the Subject 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 Obiective Standards. In addition to any other express standard that may be
provided by this Declaration, all actions by the Architectural Review Board must: (i) assure
harmony of external design, materials, and location in relation to surrounding buildings and
topography 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, the Articles of Incorporation, and the By-Laws; and (iv)
otherwise be in the best interests of all Owners in maintaining the value and desirability of the
Subject Property as a residential community.
15.6 Rules and Regulations. The Architectural Review Board from time to time may
adopt and amend reasonable, uniform rules and regulations as to all matters within the scope of
its authority, including procedural matters, and may adopt and amend a Design Standards
Manual at any time and from time to time, with any such adoption or amendment to be 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
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provisions of this Declaration, the Articles of Incorporat~&ttj~Bh~hg.gl'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 Subiective Judgment. In addition to complying with the objective standards of
this Declaration, any applicable Design Standards Manual, and any applicable rules and
regulations, Developer specifically intends the Architectural Review Board members to exercise
an informed, subjective aesthetic judgment as to any matters within the Architectural Review
Board's authority that is conclusive and binding upon any person affected, absent bad faith,
mistake, or deliberate, intentional discrimination that cannot be justified on any rational basis.
Without limitation, and in recognition of the fact that each Lot is unique, no Architectural
Review Board action with respect to any particular 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 merits, with the Architectural Review Board exercising 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 enforcement of the provisions of this Article in all events and at all
times must provide any affected person with reasonable advance notice and a reasonable
opportunity to be heard in person and through appropriate representatives of such person's
choosing in a reasonably impartial manner.
15.9 Applications. Any applications for Architectural Review Board approval must be
accompanied by three (3) sets of plans and specifications, together with such renderings,
samples, models, and other information as the Architectural Review Board reasonably may
require. Any application submitted other than by Owner must attach the Owner's written
consent to the approval requested. The application must include the Owner's street address.
Any application for installation of any building or other permanent structure must include a
landscaping plan and detailed plot plan of any permanent improvements and structures. If
requested, the Architectural Review Board may require the preliminary staking of such
improvements and structures according to such plan for Architectural Review Board inspection.
Any application for the initial installation of any residential dwelling must also include a grading
and drainage plan and tree survey. Any costs of filing and processing an application pursuant to
this Article are at the expense of the applicant; and the Association also may impose a
reasonable, uniform application fee to defray the Architectural Review Board's costs.
15.1 0 Procedure. Within fourteen (14) days after receiving an application, the
Architectural Review Board either must approve the application as submitted or notify the
applicant of (i) the Architectural Review Board's decision to deny the application, or (ii) any
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additional plans, specifications, drawings, or othe~~~JffiH1fJt. d1e 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 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 and specifications, one
of which must be returned to the applicant and one retained in the Association's permanent
records for a period of two (2) years. Upon completion of the approved work, the applicant and
any architect, engineer, contractor, or other reasonable professional must certify to the
Association in writing that the work has been completed substantially according to the approved
plans and specifications; and no Statute of Limitations begins to run in favor of "any Owner or
other applicant with respect to any substantial non-conformity to the approved plans and
specifications until such certificate is filed.
15.12 Changes. Any change to any plans and specifications previously approved by the
Architectural Review Board affecting exterior elements of the Improvements also must be
approved by the Architectural Review Board as provided in this Article XV, except that the
Architectural Review Board will expedite, to the extent practical, any such application that is
made while construction is in progress. The Architectural Review Board in no event is required
to act upon any such application in less than ten (10) days, however.
15.13 Notice of Action. No suit, proceeding or other action to enforce the provisions of
this Article XV may be commenced or continued, nor may any of the provisions of this
Article XV be enforced, against any person who acquires any interest in a Lot without actual
knowledge that a building or other structure (including walls and fencing) was installed,
maintained, or restored on the Lot, as the case may be, in violation of the requirements of this
Article unless such suit, action, or other proceeding is commenced within one (1) year after the
City has issued a Certificate of Occupancy, or its equivalent. No such action may be
commenced, continued, or otherwise enforced against any purchaser or creditor who acquires an
interest in, or a lien upon, any Lot for value, other than pre-existing indebtedness, and without
actual knowledge of any such violation, if such purchaser or creditor obtained a statement under
oath from the applicable Owner that no violation existed on such Lot at the 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
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appropriate certificate of compliance or non-compliance,S~r-lli.W-ga~Q.rfihy be, with the provisions
of this Article XV, that is binding and conclusive as to the information it sets forth, upon both the
Association and any person without actual knowledge to the contrary.
15.14 Developer Action. Notwithstanding any provision of this Article XV, no
Architectural Review Board approval is required for any residential dwelling or any of its
appurtenances constructed by Developer on any Lot as part of the development of Wicklow
Greens at Tuscawilla, so long as it otherwise conforms to the applicable 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.
15.15 Exculpation for Approval or Disapproval of Plans. The Developer, the
Association, the Architectural Review Board, and any and all officers, directors, employees,
agents and members of either the Developer, the Association, or the Architectural Review Board
shall not, either jointly or severally, be liable or accountable in damages or otherwise to any
Owner or other person or party whomsoever or whatsoever by reason, or on account of, any
decision, approval or disapproval of any plans, specifications or other materials required to be
submitted for review and approval pursuant to the provisions of this Article XV, or for any
mistake in judgment, negligence, misfeasance or nonfeasance related to or in connection with
any such decision, approval or disapproval. Each person who shall submit plans, specifications
or other materials to the Architectural Review Board for consent or approval pursuant to the
provisions of this Article XV, by the submission thereof, and each Owner by acquiring title to
any Lot or any interest therein, shall be deemed to have waived the right to, and shall not, bring
any action, proceeding or suit against Developer, the Architectural Review Board, the
Association or any individual member, officer, director, employee or agent of any of them for the
purpose of recovering damages or for any other relief on account of any such decision, approval,
disapproval, mistake in judgment, negligence, misfeasance or nonfeasance. Plans, specifications
and other materials submitted to and approved by the Architectural Review Board, or by
Developer or the Board of Directors, as the case may be, are being reviewed and approved based
solely on their compliance with the provisions of this Declaration and as to aesthetic
considerations. No person or entity shall have the right to rely on approval or disapproval of
plans and specifications or any other materials as a representation of any sort regarding
compliance with sound construction or building standards, any applicable Governmental
Regulations, including, without limitation, any applicable building or zoning laws, ordinances,
rules or regulations. By the approval of any such plans, specifications or materials, neither
Developer, the Architectural Review Board, the Association, nor any individual member, officer,
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.
ARTICLE XVI
AMENDMENT
49
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16.1 Amendment by Developer. Subject t~E~~S{Ji~hns of Section 16.5 of this
Declaration, until Developer no longer holds an ownership interest in any Lot or other lands
within the Subject Property, the terms and provisions of and the covenants, conditions,
restrictions, easements and reservations set forth in 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 without limitation,
the City, the Association or any Owner or Owners. The City shall be furnished a recorded copy
of any amendment to this Declaration.
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%) ofthe total voting power of the members of the Association;
provided, however, that until Developer no longer holds an ownership interest in any Lot or other
lands within the Subject Property, no such change, amendment or modification by the
Association shall be effective without Developer's express written joinder and consent on the
amending instrument.
16.3 Manifestation of Requisite Consent. In the case of any change, amendment or
modification of this Declaration by the Association which requires the affirmative written
consent or vote of members of the Association as hereinabove provided in Section 16.2, the
acquisition of the requisite written consent or vote of members shall be manifested.on the face of
the amending instrument in a certificate duly executed and sworn to before a Notary Public by
the President, or Vice President, and the Secretary of the Association affirmatively stating that
such requisite affirmative written consent or vote has, in fact, been acquired or obtained prior to
the recordation of such amending instrument among the Public Records of the County. Such
certificate shall be and constitute conclusive evidence of the satisfaction of the provision of
Section 16.2 of this Declaration with respect to the change, amendment or modification of this
Declaration effected by the amending instrument of which such certificate is made a part.
16.4 Effectiveness of Amendments. All changes, amendments or modifications of this
Declaration shall be manifested in a written amending instrument duly executed by Developer or
the Association, or both, as may from time to time be required pursuant to the provisions of this
Article XVI, and shall be duly recorded among the Public Records of the County. Such change,
amendment or modification of this Declaration shall be effective as of the date of such
recordation or such later date as may be specified in the amending instrument itself.
16.5 Limitations on Amendments. Notwithstanding anything to the contrary set forth
in this Declaration, the rights of Developer and/or the Association to change, amend or modify
the terms and provisions of and the covenants, conditions, restrictions, easements and
reservations set forth in this Declaration shall at all times be subject to and limited and restricted
as follows, to wit:
(a) This Declaration shall at all times be subject to the rules, laws, ordinances and
codes of the City.
50
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SEI,WWU:: r:n -I
(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.
(h) This Declaration may not be changed, amended or modified in such fashion as
to change, amend, modify, eliminate or delete the provisions of this Section 16.5 of this
Declaration without the prior written consent and joinder of Developer, in any case, and
to the extent of any proposed change, amendment or modification which shall affect the
rights of the City or the St. Johns Water Management District hereunder, the same shall
require the written consent and joinder of the City or the St. Johns River Water
Management District, as the case may be.
ARTICLE XVII
DURATION
The terms and proviSIOns of and covenants, conditions, easements, restrictions and
reservations set forth in this Declaration shall continue to be binding upon the Developer and the
51
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3532 0823
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Association and upon each Owner and all Owners from time to time 'ot11ny 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 (I) year prior to the end of the initial term or any subsequent extension term of this
Declaration. Each of the easements herein declared to be created, granted or reserved shall
continue to be binding upon Developer and the Association and upon each Owner and all
Owners from time to time of any portion of the Subject Property and their respective successors
and assigns and all persons, parties and legal entities claiming by, through or under any of them
in perpetuity, unless any such easement shall have been changed, amended, modified, released or
terminated by the execution and recordation among the Public Records of the County of a written
instrument or Court order, as the case may be, which, in either case, is otherwise legally
sufficient in all respects to effect any such change, amendment, modification, release or
termination of any such easement.
,....,
"-"
ARTICLE XVIII
ENFORCEMENT
18.1 Parties Entitled to Enforce. Subject to the provisions of Section 18.2 of this
Declaration, the terms, provisions, covenants, conditions, restrictions, easements and reservations
set forth in this Declaration, as changed, amended or modified from time to time, shall be
enforceable by Developer, the Association and/or any Owner whose membership privileges in
the Association have not been suspended as contemplated in Section 13.1. Additionally, to the
extent that particular rights or interests are expressly conferred upon or granted to the City
pursuant to this Declaration, the particular terms and provisions of this 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 storm water
management system.
52
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18.2 Limitations on Enforcement Rights. N~iw~tfis~Rndfng the foregoing provisions of
Section 18.1 of this Declaration, the right to enforce the provisions of this Declaration shall be
subject to and limited by the requirement that the Association shall have the exclusive right to
collect Assessments and enforce Assessment liens. To the extent that specific rights,-interests or
reservations are conferred upon or granted or reserved to specific parties pursuant to this
Declaration only those parties upon or to whom or which such rights, interests or reservations are
conferred, granted or reserved shall have the right to enforce the provisions of this Declaration
relating to such rights, interests or reservations.
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3532
18.3 Enforcement by Owners. Only Developer and the Association shall have the right
to enforce the provisions of Article XV of this Declaration with respect to architectural and
landscape control. It is expressly provided, however, that if both Developer and the Association
fail, refuse or are unable to commence enforcement of such provisions within thirty (30) days
following written demand to do so from any Owner, any Owner who makes such demand and
who otherwise has standing to do so, shall have the right to enforce the provisions of said
Article XV; provided, however, that such right of enforcement shall not include the right to seek
judicial review of discretionary decisions made either by Developer, the Association or the
Architectural Review Board where the discretion to make such decision is expressly conferred
pursuant to this Declaration.
18.4 Attorneys' Fees. In the event that legal or equitable proceedings are instituted or
brought to enforce any of the provisions set forth in this Declaration, as changed, amended and
modified from time to time, or to enjoin any violation or attempted violation' or default or
attempted default of the same, the prevailing party in such proceeding shall be entitled to
recover, from the losing party such reasonable attorneys' and paralegals' fees and court costs as
may be awarded by the court rendering judgment in such proceedings, whether incurred at the
trial or appellate level.
18.5 No Waiver. Failure by Developer, the Association, any Owner or the City (only
to the extent any right of enforcement is otherwise granted to or conferred upon the City pursuant
to this Declaration), to enforce any term, provision, covenant, condition, restriction, easement or
reservation herein contained in any particular instance or on any particular occasion shall not be
deemed a waiver of the right to do so upon any subsequent violation or attempted violation or
default or attempted default of the same or any other term, provision, covenant, condition,
restriction, easement or reservation contained herein.
18.6 Nuisance. The result of every act or omission, where any term or provision of, or
covenant, condition, restriction, easement, or reservation set forth in this Declaration is violated,
breached or in default in whole or in part, is hereby declared to be and constitute a nuisance, and
every remedy allowed by law or equity against a nuisance, either public or private, shall be
applicable against every such result, and may be exercised by Developer, the Association or any
Owner.
18.7 Cumulative Rights and Remedies. In connection with the enforcement of this
Declaration, all rights, remedies of Developer, the Association, the Owners and the City (to the
extent provided herein), shall be cumulative, and no single right or remedy shall be exclusive of
any other.
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18.8 Effect of Invalidation. If in the course or~ril~1te~ fd-enforce this Declaration,
any particular provision of this Declaration is held to be invalid by any court, the invalidity of
such provision shall not affect the validity of the remaining provisions hereof.
18.9 Exculpation. Developer, the Association, the Architectural Review Board, and
the individual members, officers, directors, employees or agents of any of them, shall not, jointly
or severally, be liable or accountable in damages or otherwise to any Owner or other party
affected by this Declaration, or to anyone submitting plans or other materials for any required
consent or approval hereunder, by reason or on account of any decision, approval or disapproval
required to be made, given or obtained pursuant to the provisions of this Declaration, or for any
mistake in judgment, negligence or nonfeasance related to or in connection with any such
decision, approval or disapproval. Each person who shall submit plans or other materials for
consent or approval pursuant to this Declaration, by the submission thereof, and each Owner of
any Lot, by acquiring title thereto or an interest therein, shall be deemed to have agreed that he or
it shall not be entitled to bring and shall not bring any action, proceeding or suit against
Developer, the Association, the Architectural Review 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.
19.3 Governing Law. This Declaration and the interpretation and enforcement of the
same shall be governed by and construed in accordance with the laws of the State of Florida.
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19.4 Construction. The provisions of this Declaration sha1r De Htterally construed so as
to effectuate and carry out the objects and purposes specified in Article II of this Declaration.
19.5 Article and Section Headings. Article and Section headings contained in the
Declaration are for convenience and reference only and in no way define, describe, extend or
limit the intent, scope or content of the particular Articles or Sections in which they are contained
or to which they refer and, accordingly, the same shall not be considered or referred to in
resolving questions of interpretation or construction.
19.6 Singular Includes Plural. Etc. Whenever the context of this Declaration
reasonably requires the same, the singular shall 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 properly delivered
upon receipt at the address furnished by the Association or to the address of its principal
place of business.
(c) Notice to Developer shall be deemed to have been properly delivered upon
receipt at the Developer's registered agent.
(d) The affidavit of an officer or authorized agent of the Association declaring
under penalty of perjury that a notice has been properly mailed to any Owner or Owners
to the address or addresses shown on the records of the Association, shall be deemed
conclusive proof of such mailing, whether or not such notices are actually received.
19.9 Development and Construction by Developer. Nothing set forth in this
Declaration shall be deemed, either expressly or impliedly, to limit the right of Developer to
change, alter or amend its development plan or plans for the Subject Property, or to construct
55
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3532 0827
such improvements as Developer deems advis~ft!i1jWi~~ ffle 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.
19.1O Assignment of Developer's Rights and Interests. The rights and interests of
Developer under this Declaration may be transferred and assigned hy 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 II of this Declaration and Developer makes no warranties or representations express or
implied as to the hinding 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.
ARTICLE XX
CONSTRUCTION
20.1 Approved Builders. Each Owner must contract with a licensed contractor that has
been approved in writing by Developer to construct single family residences within Wicklow
Greens and who has a signed an Approved Builder Agreement with Developer ("Approved
Builder"). Developer will select no less than four (4) Approved Builders at all times. Owner
may not act as its own contractor and must use an Approved Builder to construct Owner's
residence.
20.2 Obligation To Commence Construction. Each Owner shall meaningfully
commence construction of a residence on his Lot within one (1) year of acquiring such
Lot. Further, each Owner shall diligently continue such construction without interruption
in an expeditious manner until completion of the residence. If any Owner fails to
commence construction of a residence within one (1) year of acquiring the Lot or to
continue such construction as described herein, Developer shall have the right and option
at any time after the end of the applicable time period, but not the obligation, to
repurchase the Lot for ninety percent (90%) of the purchase price paid for the Lot by such
Owner pIns such Owner's direct out-of-pocket construction costs paid to third parties
related solely to the Lot, excluding any soft costs such as design and permitting costs.
The Seller's remedies are cumulative.
All closing costs shall be paid by Owner, and Owner shall convey the Lot to
Developer by special warranty deed free and clear of all encumbrances other than those
matters encumbering the Lot at the time Developer conveyed the Lot to Owner. Owner
shall appear at a closing to be held within five (5) Working days of receipt of written
notice from Seller that it intends to repurchase the Lot, at which time Owner will be given
a cashier's check for the repurchase price.
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(b) The residence on the Lot shall be completeJbyl~gJaiitl.made available for
occupancy within one (I) year after the commencement of construction; provided that
delays cause by acts of God and strikes shall be added to said period. Completion of
construction shall be evidenced by the issuance of a certificate of occupancy or such other
certificates, permits, and approvals for the residence as are customarily issued by the
governmental body having jurisdiction to do so. In the event Owner fails to timely fulfill
its obligation to complete the residence, Seller shall have the repurchase rights described
above. Alternatively, Seller shall have the rights of specific performance to enforce
Owner's obligation to complete the residence within the required time period and for
damages and other legal or equitable remedies caused by any delay in the completion of
the residence beyond the required time period, as noted herein.
( c) Seller's repurchase rights shall be superior to the lien of any mortgage Owner
records against title to the Lot. The lien of any such mortgage shall automatically be
cancelled upon Owner's reconveyance of the Lot to the Seller in consideration of the
repurchase price established herein. Provided, funds payable to Owner pursuant to this
Section shall first be paid to Owner's mortgagee in an amount owed to such mortgagee
(but not exceeding the amount payable by Seller).
IN WITNESS WHEREOF Developer has caused this Declaration of Covenants,
Conditions and Restrictions to be made and executed as of the day and year first above written.
WICKLOW, LTD.,
a Florida limited partnership
(J. D. (3"x ') '13 3 rc......(Jc, t="1... "3 J' J I
By: ELJH, Inc.,
a Florida corporation,
its General Partner
~
By: U./..././,.-c..k
Name.--" s: i-€VE'II\ 5o.M.C<i.,c,
Title: {J (''"f? oS ;' ('.r,€, III r-
57
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STATE OF F) Of, ;\ A
SEMINOLE CO. Fl.
COUNTY OF 0e_ ~/\ ~ n (1 \ e.
The foregoing instrument wa~ acknowledged be~e me this ~1 day of (")cA-o };e(U
1998, by Sfe tie "J IV) ; S Tt m~ h Cu , as I' (f:?~ S I de /I\'T of ELJH, Inc., a
Florida corporation, as General Partner and on behalf of WICKLOW, LTD., a Florida limited
partnership. He/Sfte is-personall7'--Known to me OF has produced tQ,1),~ tlMlJ 6"OMJcu..-as
identification and who did/did-not take an oath. . ~,. . .' .
" {ZL.p. I A. I J()j I-i j)Jy.,j
A.. OF "<0 50t: 0, u.'WIDSON 'J, '. \ j I .
;i'"OTA''''' My COmfTl Exp. 9/24/00 Signature of Person Taking t)cknowledgment
N S '" .U"LIC Bonded By Service Ins p' N S < ^ (J : ....1 S'U ^ I'
otary tam No CC5710S1. ~_/ ~mt ame: U e: --.,). ' " I \...1 I V
IIPer.on~flYKn""'n~rI.D TItle:, Notary PublIc
Serial No. (if any)
Commission Expires: q.. tJ4-. d,()(J 0
#453588 v4 - 5982-001
58
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JOINDER OF MORTGAGEE
3532
083n
SEMINOLE CO. FL.
The undersigned, on behalf of AmSouth Bank, an Alabama state chartered bank (the
"Lender"), being the owner and holder of (i) that certain Mortgage and Security Agreement
recorded on July 8, 1998, in Official Records Book 3457, at Page 1438, (ii) that certain
Assignment of Leases, Rents, Profits and Contract Rights recorded in Official Records
Book 3457, Page 1454, and (iii) that certain UCC-l Financing Statement recorded in Official
Records Book 3457, Page 1464, all of the Public Records of Seminole County, Florida. The
aforesaid loan documents are collectively referred to in this Joinder as the "Security Documents."
The Lender hereby joins in the execution of the within and foregoing Declaration of Covenants,
Conditions, Easements and Restrictions for Wicklow Greens at Tuscawilla (the "Declaration")
for 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 encumbrance of the Security Documents to each and every one of the covenants, conditions,
restrictions, easements and reservations set forth in the Declaration. .
IN WITNESS WHEREOF, the Lender has caused these present to be executed by its
undersigned officer thereunto duly authorized on this ~ day of November, 1998.
Witnesses:
.
AMSOUTH BANK,
an Alabama stale c~~gr~1 /' I - 'f':.
~:n; ~;~: D ~FL'~1m~
Name: tv; 1\ .'0 Ilk ~. (....\..- : III. c. Ik f
Title: L/.' ce. ~~
(!fI~~.~
Print Name: L 0 '" i A/ Kale 1 Cl v-
pri~am~'
So. ^^-c< f,.."
STATE OF FLORIDA
COUNTY OF H; !l.>bo'" v......~
The foregoing instrument was acknowledged before me this 3.!!:. day of ~tlI.A',.".1 et;
1998, by _t.v~iliCl~ C. u..--~II~c. , the t/I're IlI't"'sl'de",fofAmSouth
Bank, an Alabama state chartered bank, on behalf of the bank. He/Sherrhey is/are personally
known to me or has/have produced as identification.
Signaturars6~Wledgment
Notary Stamp Print Name:
Title: Notary Public
Serial No. (if any)
Commission Expires:
#453588 v4 - 5982-00 I
STEVEN M. SAMAHA.
Notary Public, State of FlOrida
My Comm. E:xp:ri,sMarch 24, 1998
No. CC359324
.- ~.~~~-'c.':'-"....~~.~~~..._:.
~flCIAl RECORDS
DESCRIPTION: C V . PAGE
FROM THE NORTHEAST CORNER OF WINTER SPRINGS UNIT 15A~ ~ECO~& ~J PLAT BOOK 17,
PAGES 89 AND 90, PUBLIC RECORDS OF SEMINOLE C~~ CJQ~gIDA, RUN SOUTH
8T51'00" WEST ALONG THE NORTHERLY BOUNDARY LINE OF SAID WINTER SPRINGS UNIT
3, A DISTANCE OF 356.77 FEET, THENCE LEAVING THE AFORESAID NORTHERLY BOUNDARY
LINE OF WINTER SPRINGS UNIT 3, RUN NORTH 01'11'44" WEST 350.51 FEET TO THE
POINT OF BEGINNING; THENCE NORTH 70029'34", WEST 215.02 FEET; THENCE SOUTH
79044'00" WEST 630.09 FEET; THENCE SOUTH 36044'30" WEST 103.84 FEET; THENCE
SOUTH 00'15'09" EAST 244.83 FEET TO A POINT ON THE AFOREMENTIONED NORTHERLY
BOUNDARY LINE OF WINTER SPRINGS UNIT 3, THENCE SOUTH 89044'51" WEST ALONG SAID
NORTHERLY LINE 80.00 FEET; THENCE NORTH 00015'09" WEST 428.41 FEET, THENCE
NORTH 04'12'06" EAST 78.61 FEET TO THE SOUTHEAST CORNER OF LOT 10, "WOODSTREAM
REPLAT", RECORDED IN PLAT BOOK 40, PAGE 39, OF THE PUBLIC RECORDS OF SEMINOLE
COUNTY, FLORIDA; THENCE RUN ALONG THE NORTHEASTERLY, NORTHERLY AND NORTHWESTERLY
BOUNDARY OF SAID "WOODSTREAM REPLAT" THE FOLLOWING COURSES: THENCE NORTH
10'16"00" WEST 259.99 FEET; THENCE NORTH 11'23'44" WEST 135.86 FEET, THENCE
NORTH 60035'58" WEST 40.00 FEET, THENCE NORTH 29024'02" EAST 1 0.00 FEET,
THENCE NORTH 60035'58" WEST 135.00 FEET; THENCE SOUTH 58046'51" WEST 156.53
FEET, TO A POINT ON THE NORTHEASTERLY LINE OF "WOODSTREAM" AS RECORDED IN PLAT
BOOK 24, PAGES 97 AND 98, OF THE PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA,
THENCE NORTH 45'32'37" WEST ALONG SAID NORTHEASTERLY LINE 115.00 FEET TO THE
SOUTHEASTERLY RIGHT-OF-WAY LINE OF NANCY CIRCLE. SAID POINT BEING A POINT OF
CURVATURE OF A CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 368.65 FEET;
THENCE FROM A TANGENT BEARING OF NORTH 44027'83" EAST, RUN NORTHEASTERLY ALONG
THE ARC OF SAID CURVE AND SAID SOUTHEASTERLY RIGHT-OF-WAY LINE 65.03 FEET,
THROUGH A CENTRAL ANGLE OF 1 0006'26", THENCE LEAVING SAID RIGHT-OF-WAY LINE,
RUN THENCE NORTH 45032'37" WEST ALONG THE SOUTHWESTERLY LINE OF LOT 305, OF
SAID "WOODSTREAM" AND NORTHWESTERLY EXTENSION THEREOF A DISTANCE OF 367.56 FEET
TO THE CENTERLINE OF HOWELL CREEK, THENCE RUN ALONG THE CENTERLINE OF HOWELL
CREEK THE FOllOWING COURSES: NORTH 41008'11" EAST 36.90 FEET, NORTH
25052'29" WEST 74.17 FEET; NORTH 79051'51" EAST 71.32 FEET, SOUTH
75035'29" EAST 74.63 FEET; NORTH 54029'51" EAST 58.32 FEET; NORTH
57"23'49" WEST 85.20 FEET; NORTH 51015'31" EAST 118.86 FEET; NORTH
43022'09" WEST 65.00 FEET; NORTH 44'08'11" EAST 141.79 FEET; SOUTH
47"22'09" EAST 31.52 FEET; NORTH 72"35'48" EAST 75.81 FEET; SOUTH
21036'52" EAST 73.70 FEET; NORTH 64031 '08" EAST 46.70 FEET; NORTH
29022'08" EAST 151.40 FEET; NORTH 01012'18" EAST 39.60 FEET; NORTH
56054'08" EAST 95.50 FEET; NORTH 21023'08" EAST 42.70 FEET; NORTH
61040'48" EAST 22.95 FEET; SOUTH 40020'32" EAST 67.00 FEET; SOUTH
82"06'22" EAST 86.80 FEET; NORTH 49013'58" EAST 36.14 FEET; THENCE LEAVING
THE AFORESAID CENTERLINE OF HOWELL CREEK, RUN THENCE SOUTH 1 T04'38" EAST
365.28 FEET; RUN THENCE SOUTH 31044'13" EAST 765.84 FEET; RUN THENCE SOUTH
75052'42" EAST 331.32 FEET, RUN THENCE SOUTH 01'11'44" EAST 418.82 FEET TO THE
POINT OF BEGINNING.
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