DECLARATION OF COVENANTS
AND RESTRICTIONS FOR
OCOEE RIDGE SUBDIVISION, PHASE I
THIS DECLARATION made this _____ day of
_____________, 2008,
by HORN’S CREEK RESORT, LLC (herein developer).
W I T N E S S E T H:
WHEREAS, developer, as owner of certain real
property located in Polk County, Tennessee, as more particularly described
in Exhibit AA@
attached hereto (herein Aproperty@),
desires to create thereon a development known as OCOEE RIDGE (PHASE I) as
shown in Plat of record in Plat Book 12, page 74 Register’s Office of Polk
County, TN (herein Adevelopment@);
and;
WHEREAS, developer desires to provide for the
preservation of the land values and home values when and as the property is
improved and desires to subject the development to certain covenants,
restrictions, easements, affirmative obligations, charges and liens, as
hereinafter set forth, each and all of which are hereby declared to be for
the benefit of the development and each and every owner of any and all parts
thereof; and
WHEREAS, developer has deemed it desirable for
the efficient preservation of the values and amenities in the development to
create an entity to which should be delegated and assigned the power and
authority of holding title to and maintaining and administering the Common
Properties (hereinafter defined) and administering and enforcing the
covenants and restrictions governing the same and collecting and disbursing
all assessments and charges necessary for such maintenance, administration
and enforcement, as hereinafter created; and
WHEREAS, developer has caused or will cause to
be incorporated under the laws of the State of Tennessee, OCOEE RIDGE
HOMEOWNERS= ASSOCIATION, INC., a
Tennessee corporation, for the purpose of exercising the above functions and
those which are more fully set out hereafter;
NOW THEREFORE, the developer subjects the real
property described in Article II, and such additions thereto as may
hereafter be made, to the terms of this declaration and declares that the
same is and shall be held, transferred, sold, conveyed, leased, occupied and
used subject to the covenants, restrictions, conditions, easements, charges,
assessments, affirmative obligations and liens (sometimes referred to as the
Acovenants@)
hereinafter set forth. These covenants shall touch and concern and run with
the property and each Lot thereof.
ARTICLE I
DEFINITIONS
The following words and terms, when used in this
Declaration, or any Supplemental Declaration (unless the context shall
clearly indicate otherwise) shall have the following meanings:
1.01 Architectural Review Committee.
AArchitectural Review Committee@
shall mean and refer to that Committee formed and operated in the manner
described in Section 4.01 hereof.
1.02 Association.
AAssociation@
shall mean OCOEE RIDGE HOMEOWNERS=
ASSOCIATION, INC., a Tennessee corporation.
1.03 Board of Directors or Board.
ABoard of Directors@
or ABoard@
shall mean the governing body of the Association established and elected
pursuant to this Declaration.
1.04 Bylaws.
ABylaws@
shall mean the Bylaws of the Association, the initial text of which is set
forth in Exhibit B attached hereto and made a part hereof.
1.05 Common Expense.
ACommon Expense@
shall mean and include (a) expenses of administration, maintenance, repair
or replacement of the Common Properties; (b) expenses agreed upon as Common
Expenses by the Association; (c) expenses declared Common Expenses by the
provisions of this Declaration; and (d) all other sums assessed by the Board
of Directors pursuant to the provisions of this Declaration.
1.06 Common Properties.
ACommon Properties@
shall mean and refer to those tracts of land and any improvements thereon
which are deeded or leased to the Association and
designated in said deed or lease as ACommon
Properties@. The term
ACommon Properties@
shall also include any personal property acquired by the Association if said
property is designated as a ACommon
Property@. All Common Properties
are to be devoted to and intended for the common use and enjoyment of the
owners, persons occupying dwelling units or accommodations of owners on a
guest or tenant basis, and visiting members of the general public (to the
extent permitted by the Board of Directors of the Association) subject to
the fee schedules and operating rules adopted by the Association; provided,
however, that any lands which are leased by the Association for use as
Common Properties shall lose their character as Common Properties upon the
expiration of such Lease. The Common Properties may include but not be
limited to street lights, entrance and street signs, pool, pool house,
parks, ponds, medians in roadways, maintenance easement areas, and
landscaping easement areas.
1.07 Covenants.
ACovenants@
shall mean the covenants, restrictions, conditions, easements, charges,
assessments, affirmative obligations and liens set forth in this
Declaration.
1.08 Declaration.
ADeclaration@
shall mean this Declaration of Covenants and Restrictions for OCOEE RIDGE
and any Supplemental Declaration filed pursuant to the terms hereof.
1.09 Developer.
ADeveloper@
shall mean HORN’S CREEK RESORT, LLC.
1.10 Dwelling Unit.
ADwelling Unit@
shall mean any building situated upon the Properties designated and intended
for use and occupy by a single family.
1.11 First Mortgage.
AFirst Mortgage@
shall mean a recorded mortgage with priority over other mortgages.
1.12 First Mortgagee.
AFirst Mortgagee@
shall mean a beneficiary, creditor or holder of a first mortgage.
1.13 Lot or Lots.
ALot@
or ALots@
shall mean and refer to any improved or unimproved parcel of land located
within the property which is intended for use as a site for a single-family
detached dwelling unit as shown upon any recorded final subdivision map of
any part of the property, with the exception of the Common Properties.
1.14 Manager.
AManager@
shall mean a person or firm appointed or employed by the Board to manage the
daily affairs of the Association in accordance with instructions and
directions of the Board.
1.15 Member or Members.
AMember@
or AMembers@
shall mean any or all owner or owners.
1.16 Mortgage.
AMortgage@
shall mean a deed of trust as well as a mortgage.
1.17 Mortgagee.
AMortgagee@
shall mean a beneficiary, creditor, or holder of a deed of trust, as well as
a holder of a mortgage.
1.18 Owner.
AOwner@
shall mean and refer to the owner as shown by the real estate records in the
office of the Recorder, whether it be one or more persons, firms,
associations, corporations, or other legal entities, of fee simple title to
any lot situated upon the property, but, notwithstanding any applicable
theory of a mortgage, shall not mean or refer to the mortgagee or holder of
a security deed, its successors or assigns, unless and until such mortgagee
or holder of a security deed has acquired title pursuant to foreclosure or a
proceeding or deed in lieu of foreclosure; nor shall the term
Aowner@
mean or refer to any lessee or tenant of an owner. In the event that there
is recorded in the office of the Recorder, a long-term contract of sale
covering any lot within the property, the owner of such lot shall be the
purchaser under said contract and not the fee simple title holder. A
long-term contract of sale shall be one where the purchaser is required to
make payments for the property for a period extending beyond twelve (12)
months from the date of the contract, and where the purchaser does not
receive title to the property until such payments are made although the
purchaser is given the use of said property. The developer may be an owner.
1.19 Property.
AProperty@
shall mean and refer to the real property described in Section 2.01 hereof,
and additions thereto, which is subject to this Declaration or any
supplemental declaration under the provisions hereof.
1.20 Record or To Record.
ARecord@
or ATo Record@
shall mean to record pursuant to the laws of the State of Tennessee relating
to the recordation of Deeds and other instruments conveying or affecting
title to real property.
1.21 Recorder.
ARecorder@
shall mean and refer to the Register of Deeds of Polk County, Tennessee.
ARTICLE II
PROPERTIES, COMMON PROPERTIES AND
IMPROVEMENTS THEREON
2.01 Property. The covenants and
restrictions set forth in this Declaration, as amended from time to time,
are hereby imposed upon the real property located in Polk County, Tennessee,
and more particularly described in Exhibit A attached hereto and
additions or amendments thereto, which shall hereafter be held, transferred,
sold, conveyed, used, leased, occupied and mortgaged or otherwise encumbered
subject to the declaration. Additionally, any easements on any real property
retained by or granted to the developer or the association for the purpose
of erection and maintenance of entrance signs or street lights, or
landscaping and maintenance thereof, shall also be considered property and
subject to these covenants. Every person who is or shall be a record owner
shall be deemed by the taking of such record title to agree to all the terms
and provisions of this declaration.
THE RESTRICTIONS SHALL BE BINDING ONLY UPON THE
LOTS SHOWN ON THE AFOREMENTIONED PLAT. THESE RESTRICTIONS ARE NOT MEANT TO
AFFECT NOR INTENDED TO AFFECT ANY OTHER LAND(S) WHETHER ADJOINING OR
OTHERWISE OWNED NOW OR IN THE FUTURE BY THE OWNER/DEVELOPER OF OCOEE RIDGE
SUBDIVISION.
2.02 Association. The developer has
caused the association to be formed and incorporated under the laws of the
State of Tennessee for the purpose of carrying on one or more of the
functions of a homeowners=
association including, but not limited to, exercising all the powers and
privileges and performing all the duties and obligations set forth in this
declaration. Every person who is an owner is and shall be a member of the
association as more particularly set forth in the Bylaws of the association.
2.03 Additions to Property. Additional
lands may become subject to, but not limited to, this declaration in the
following manner:
(A) Additions. The developer, his
successors and assigns, shall have the right, without further consent of the
association, to bring within the plan and operation of this declaration
additional properties in future stages of the development beyond those
described in Exhibit A so long as they are contiguous with then
existing portions of the development. For purposes of this paragraph,
contiguity shall not be defeated or denied where the only impediment to
actual Atouching@
is a separation caused by a road, right of way or easement, and such shall
be deemed contiguous. The additions authorized under this section shall be
made by filing a Supplementary Declaration of Covenants and Restrictions
with respect to the additional property which shall extend the operation and
effect of the covenants and restrictions of this declaration to such
additional property after which it shall fall within the definition of
property as herein set forth.
The Supplementary Declaration may increase or
decrease the minimum square foot requirements for a dwelling unit and
contain such other complementary additions and/or modifications of the
covenants and restrictions contained in this declaration as may be necessary
or convenient, in the sole judgment of the developer, to reflect the
different character, if any, of the added properties and as are not
inconsistent with this declaration, but such modifications shall have no
effect on the property as described in section 2.01 above.
(B) Other Additions. Upon approval in
writing of the association pursuant to 75% of the vote of those present in
person or by proxy at a duly called meeting, the owner of any property
(other than developer) who desires to add it to the plan of these covenants
and to subject it to the jurisdiction of the association, may file or record
a Supplementary Declaration of Covenants and Restrictions with respect to
the additional property which shall extend the operation and effect of the
covenants and restrictions of the declaration to such additional property.
The Supplementary Declaration may contain such
complementary additions and/or modification of the covenants and
restrictions contained in this declaration as may be necessary or
convenient, in the sole judgment of the association, to reflect the
different character, if any, of the added properties and as are not
inconsistent with the plan of this declaration, but such modification shall
have no effect on the property described in Section 2.01 above.
2.04 Common Properties and Improvements
Thereon. The developer may install initially one or more entrance signs
to the development. The signs shall become part of the Common Properties
when the developer conveys the signs to the Association, at which time the
Association shall become responsible for the operation, maintenance, repair
and replacement of the signs. The developer may also landscape the entrance
areas (whether privately or publicly owned) and other areas where it may or
may not have reserved an easement. These areas shall become Common
Properties when conveyed to the Association and the Association shall then
become responsible for maintenance of the landscaped areas. The developer
and the Association may add additional Common Properties from time to time
as they see fit. The Common Properties shall remain permanently as open
space except as improved, and there shall be no subdivision of same, except
as otherwise provided herein. No building, structure or facility shall be
placed, installed, erected, or constructed in or on the Common Properties
unless it is purely incidental to one or more of the uses above specified.
2.05 A Pavillion at Ocoee Ridge. The
developer, at its sole expense shall cause to be constructed a pavilion.
Construction shall begin on said pavillion on or before January 1, 2009. The
Developer may retain a sales office in the pavilion through 12-31-2012.
After 12-31-2012 or the date the Developer closes the sales office, future
maintenance, upkeep and related expenses shall be assessed as part of the
annual assessments by the Association.
ARTICLE III
COVENANTS, USES, AND RESTRICTIONS
3.01 Application. It is expressly
stipulated that the Restrictive Covenants and conditions set forth in this
Article III apply solely to the property described in Exhibit
AA@,
which property is intended for use as single-family residential lots only.
These Restrictive Covenants and Conditions are not intended to apply to any
other lots, tracts, or parcels of land in the area or vicinity, owned by the
developer. Specifically, the developer, his successors or assigns, reserves
the right to use or convey such other lots, tracts and parcels with
different restrictions.
3.02 Residential use.
A. All of the lots in the development shall be,
and be known and described as residential lots, and no structure shall be
erected, altered, placed or permitted to remain on any lot other than as
provided in these Covenants and Restrictions and in supplements hereto, or
except as provided for in a deed of conveyance from the developer.
B. AResidential@
refers to a mode of occupancy, as used in contradistinction to
Abusiness@
or Acommercial@
or Amercantile@
activity and, except as otherwise expressly provided,
Aresidential@
shall apply to temporary as well as permanent uses, and shall apply to
vacant lots as well as to buildings constructed thereon.
C. No lot may be used as a means of service to
business establishments or adjacent property, including but not limited to
supplementary facilities or an intentional passageway or entrance into a
business or another tract of land, whether or not a part of the property,
unless specifically consented to by developer or the Board in writing.
3.03 No Multi-Family Residences, Business,
Trucks. No residence shall be designed, patterned, constructed or
maintained to serve, or for the use of more than one single family, and no
residence shall be used as a multiple family Dwelling Unit at any time, nor
used in whole or in part for any business service or activity, or for any
commercial purpose; nor shall any lot be used for business purposes, or for
trucks or other equipment inconsistent with ordinary residential uses. No
panel, commercial or tractor trucks shall be habitually parked in driveways
or overnight on streets in front of any of the lots. Nothing contained
herein shall prohibit the developer or the association from permitting,
maintaining, or operating concessions or vending machines on the Common
Properties.
3.04 Minimum Square Footage. No
single-family detached Dwelling Unit shall erected or permitted to remain in
the Property unless it has the number of square feet of enclosed living area
measured from the exterior walls, exclusive of open porches or screened
porches, carports, garages or basements, set forth in this section. For the
purposes of this section, stated square footage shall mean the minimum floor
area required, and floor area shall mean the finished and heated living area
contained within the residence, exclusive of open porches, garages, and
steps. In the case of any question as to whether a sufficient number of
square feet of enclosed living area have been provided, the decision of the
Developer or the Architectural Review Committee shall be final. The minimum
number of square feet required may vary from phase to phase.
3.05 Set-backs. No building shall be
erected on any lot nearer than thirty (25) feet to the front lot line, and
fifteen (15) feet from the rear lot line and 10 feet from side lot lines .
For the purposes of this covenant, steps and open porches shall not be
considered as a part of the building, providing, however, this shall not be
construed to permit any portion of the building on the lot to encroach upon
another Lot. No provision of this paragraph shall be construed to permit any
structure to be constructed and erected upon any lot that does not conform
to the zoning laws and regulations applicable thereto; provided, however,
that for good cause shown, an owner may petition the developer or the
Architectural Review Committee for a variance from such set-back
requirements.
3.06 Rearrangement of Lot lines. Not more
than one Dwelling Unit shall be erected or maintained on any one lot. With
the written approval of the developer or the Board, contiguous lots may be
combined if the lots have the same owner, for the purpose of erecting an
approved Dwelling Unit thereon; however, the assessments provided for herein
will continue to be based upon the number of original lots purchased. Except
as provided in Section 3.40, lots may not be resubdivided so as to create a
smaller area than originally deeded to a lot owner and as shown on the
subdivision plat.
3.07 Temporary Structures. No part of any
lot shall be used for residential purposes until a completed Dwelling Unit,
conforming fully to the provisions of these Restrictive Covenants, shall
have been erected thereon. The intent of this section is to prevent the use
thereon of a garage, incomplete structure, trailer, barn, tent, outbuilding,
or other structure as temporary living quarters before or pending the
erection of a permanent building. No structure of temporary character,
including trailers and similar structures, shall be erected or permitted to
remain on any lot except during the period of construction. No house may be
moved from another location to any lot in this development.
Neither the foregoing nor any other section of
this Declaration shall prevent the developer or any builder approved by the
developer from constructing a house for use as a model home that may contain
office type furniture and be used for conducting the business of either
selling that house or other houses within the development, nor shall the
foregoing or any other section of this Declaration prevent the developer
from designating a lot or lots from time to time for the temporary placement
of a trailer or other suitable structure for use as an office and/or sales
center by the developer and/or approved builders at the sole discretion of
the developer.
3.08 Rainwater Drainage. A lot may not be
landscaped so that rainwater runs into another lot across an established
drainage easement.
3.09 Utility Easement. A perpetual
easement is reserved on each lot, as shown on the recorded plat, for the
construction and maintenance of utilities such as electricity, gas, water,
sewage, drainage, etc., and no structure of any kind shall be erected or
maintained upon or over said easement.
3.10 Frontal Appearance. All Dwelling
Units shall have conventional and acceptable frontal appearance from the
main street fronting said lots.
3.11 Building Requirements.
A. Building setbacks: Front -25; Side-10’;
Rear-15’
B. Structure size: One story excluding
basement and garage – no less than 1800 square feet of heated floor space;
C. Two story excluding basement and garage- no
less than 2200 square feet of heated floor space.
D. Each dwelling must have a two car garage
attached.
All buildings or structures of any kind
constructed on any lot shall have full masonry foundations and no exposed
block, concrete or plastered foundations shall be exposed to the exterior
above grade level. The foundation, front and sides of each Dwelling Unit
must be covered with stone. The rear or back of all units may use
alternative materials that are approved by the Developer or Architectural
Review Committee.
3.12 Fences. No fences will be allowed on
any lot without the prior written consent of the developer or the
Architectural Review Committee. All proposed fences must be submitted to the
developer or the Architectural Review Committee showing materials, design,
height and location.
3.13 Driveways. Each Dwelling Unit
constructed upon a lot must be served by a driveway constructed of hard
surface materials such as concrete or pre-cast pavers or asphalt. No
driveway shall be constructed on any lot nearer than seven (7) feet to any
lot line. All other hard surface materials must be approved by the developer
or the Architectural Review Committee. It shall be obligatory upon all
owners of lots in this subdivision to construct or place any driveways,
culverts, or other structures, or grading, which are within the limits of
any dedicated roadways, in strict accordance with the specifications
therefore, as set forth on the recorded subdivision plat, in order that the
roads or streets, which may be affected by such placement or construction,
may not be disqualified for acceptance into the road system of Polk County,
Tennessee.
3.14 Curbs. No permanent cuts may be made
in the curbs for any purpose other than driveways. Driveways shall be added
so as to form a smooth transitional surface with the remaining curb at
locations where the approved driveway locations meet the street.
3.15 Signs. All signs, including any
realtors or builders' signs are prohibited unless approved by the developer
or Architectural Review Committee. No signs shall be erected or maintained
on any lot, except in accordance with approved standards for signs as set by
the developer or the Architectural Review Committee.
3.16 Service Area. Each Dwelling Unit
shall provide an area or areas on the rear or side yard of the lot to
accommodate air conditioner compressors, garbage cans, the electrical
service entrance, or other ancillary residential functions that by nature
may present an unsightly appearance. Service areas shall be convenient to
the utility services and screened from view by an enclosure that is an
integral part of the site development plan, using materials, colors or
landscaping that are harmonious with the home it serves.
3.17 Garages. Each Dwelling Unit shall
have at least a double-car garage constructed at the same time as the
Dwelling Unit. Detached garages will be allowed only with written approval
from the developer or the Architectural Review Committee. No carports will
be permitted. The inside walls of garages must be finished.
3.18 Landscaping. A proposed landscape
plan shall accompany every new home application submitted to the developer
or the Architectural Review Committee for approval. If a Dwelling Unit has a
rear exterior which faces Common Property, another lot or street, the
Architectural Review Committee may require the consideration of additional
landscaping to the rear of the lot to provide cover for the Dwelling Unit. A
final landscape plan shall be submitted before completion of the dwelling.
Landscaping in accordance with the approved landscape plan must be
substantially completed within one year after commencement of construction
of the house. Shrubbery plantings adjacent to roadways and sidewalks shall
not impede the vision of vehicle operators. Said plan shall include a
minimum of $2500 in expense.
3.19 Windows. Materials to be used in
windows and glass doors must be approved by the developer or the
Architectural Review Committee. Metal and vinyl windows are not permitted,
nor are aluminum awnings permitted. However, clad windows will be permitted.
3.20 Animals. No poultry, livestock or
animals shall be allowed or maintained on any lot at any time except that
the keeping of dogs, cats, or other household pets is permitted, providing
that nothing herein shall permit the keeping of dogs, cats, or other animals
for commercial purposes. Pet owners shall not allow pets to roam unattended.
The pet owners shall also muzzle any pet which consistently barks. If the
barking persists, the pet owner shall have the pet removed from the
development. If the pet owner refuses, it shall be deemed an
Aoffensive activity@.
All breeds of dogs not insurable by standard homeowners' policies are hereby
specifically prohibited.
3.21 Zoning. Whether expressly stated so
or not in any deed conveying any one or more of said lots, each conveyance
shall be subject to existing governmental zoning and subdivision ordinances
or regulations in effect thereon.
3.22 Unsightly conditions. All of the
lots in the development must, from the date of purchase, be maintained by
the owner in a neat and orderly condition (grass being cut when needed, as
well as leaves, broken limbs, dead trees, and other debris being removed
when needed). Tree limbs, rocks and other debris must be kept out of the
streets. In the event that an owner of a lot in the development fails, of
his own volition, to maintain his lot in a neat and orderly condition,
developer, or his duly appointed agent, or the Board, or its duly appointed
agent, may enter upon said lot without liability to put said lot into an
orderly condition, billing the owner 250% of the cost of such work. No
overnight parking shall be allowed on any street.
3.23 Offensive Activity. No noxious or
offensive activity shall be carried on upon any lot, nor shall anything be
done thereon which may be or may become an annoyance, discomfort,
embarrassment or nuisance to the development.
3.24 Detached Buildings. A detached
building for motor home/RV storage will be allowed on lots
2,3,4,5,6,12,13,14,18,19,20,21,22,39,40,41. The design, materials and
placement of this building must have the consent and approval of the
developer or the Architectural Review Committee. There shall be no detached
garages, outbuildings or servants quarters, without the prior written
consent of the developer or the Architectural Review Committee.
3.25 Sewage Disposal. Before any Dwelling
Unit on a lot shall be occupied, a connection with the municipal sewer
system meeting applicable municipal codes shall be made. There shall not be
erected, permitted, maintained or operated on any lot any privy, cesspool,
vault or septic system without written approval from the developer or the
Board.
3.26 Permitted Entrances. In order to
implement and effect insect, reptile and woods fire control, and to maintain
unsightly lots, the developer or the Board, or their respective agents, may
enter upon any lot on which a Dwelling Unit has not been constructed and
upon which no landscaping plan has been implemented, such entry to be made
by personnel with tractors or other suitable devices, for the purpose of
mowing, removing, clearing, cutting or pruning underbrush, weeds or other
unsightly growth, which in the opinion of the developer or the Board
detracts from the overall beauty, setting and safety of the property or
lots. Such entrance for the purpose of mowing, cutting, clearing or pruning
shall not be deemed a trespass. The developer and its agents or the Board
and its agents may likewise enter upon a lot to remove any trash which has
collected on said lot without such entrance and removal being deemed a
trespass. The provisions of this section shall not be construed as an
obligation on the part of the developer and its agents or the Board and its
agents to mow, clear, cut or prune any lots or to provide garbage or trash
removal services. Expenses incurred for any of the foregoing shall be
chargeable to and recoverable from the owner of the lot upon which such work
is done.
3.27 Tree Removal and Tree Planting. No
live trees or shrubs having a diameter greater than six (6) inches shall be
removed prior to obtaining approval of the developer or the Architectural
Review Committee. Except for view enhancement, excessive removal of trees
will be deemed to be a nuisance to the adjoining neighbors and will mar the
beauty of the development. No trees shale be planted that will obstruct a
property owner view. without prior written consent of the developer or the
Architectural Review Committee.
3.28 Tanks and Garbage Receptacles. No
fuel tanks, propane tanks or similar storage receptacles may be exposed to
view, and such tanks or receptacles may be installed only within a Dwelling
Unit, within a screened area or buried underground. All garbage and trash
containers must be placed in the rear of each building
3.29 Wells. No private wells may be
drilled or maintained on any lot without the prior written consent of the
developer or the Architectural Review Committee.
3.30 Antennas and Dishes. No television
antenna, radio receiver or sender or other similar devise shall be attached
to or installed on the exterior portion of any Dwelling Unit exceeding 30"
in diameter or other structure on the property or any lot within the
development without the prior written consent of the developer or the
Architectural Review Committee. These can not be placed on the front of any
dwelling.
3.31 Excavation. No owner shall excavate
or extract earth from any of the lots subject to this Declaration for any
business or commercial purpose. No elevation changes shall be permitted
which will materially affect the surface grade of a lot unless the consent
of the developer or the Architectural Review Committee is obtained.
3.32 Sound Devices. No exterior speaker,
horn, whistle, bell or other sound device which is unreasonably loud or
annoying, except security devices used exclusively for security purposes,
shall be located, used, or placed upon lots within the development. The
playing of any loud music from any balconies or porches shall be offensive,
obnoxious activity constituting a nuisance.
3.33 Laundry. No owner, guest, or tenant
shall hang laundry from any area within or outside a Dwelling Unit if such
laundry is within the public view, or hang laundry in full public view to
dry, such as on balcony or terrace railings. This provision may, however, be
temporarily waived by the developer or the Board during a period of severe
energy shortages or other conditions where enforcement of this section would
create a hardship.
3.34 Mailboxes. Mailboxes of a type
consistent with the character of the property shall be selected and placed
by the owner of each lot and shall be maintained by the owner to complement
the residences and the neighborhood. Design for mailboxes must be approved
by the developer or the Architectural Review Committee.
3.35 Duty to Rebuild or Clear and Landscape
Upon Casualty or Destruction. In order to preserve the aesthetic and
economical value of all lots within the development, each owner and
developer (with respect to improved property owned by developer) shall have
the affirmative duty to rebuild, replace, repair, or clear and landscape,
within a reasonable period of time, any building, structure, and improvement
or significant vegetation which shall be damaged or destroyed by fire, or
other casualty. Variations and waivers of this provision may be made only
upon developer or the Board establishing that the overall purpose of these
Restrictive Covenants would be best affected by allowing such a variation.
Variations to this section are to be strictly construed and the allowance of
a variance by the developer or the Board shall not be deemed to be a waiver
of the binding effect of this section upon all other owners.
3.36 Vehicle Parking. Cars owned by lot
owners shall be parked only in the owners garage or driveway. No inoperable
vehicle, tractor or other machinery shall be stored outside on the premises
at any time, even if not visible from the street. No house trailer or such
vehicle shall be stored on the premises. Recreational vehicles, vacation
trailers, campers and boats must be stored and hidden from view. Such
vehicles may not be stored anywhere else on the lot.
3.37 Maintenance. Each lot owner shall,
at all times, maintain all structures located on such lot, including
driveways and permitted fences, in good repair which shall include exterior
painting as needed, and each lot owner shall keep all vegetation and
landscaping in good and presentable condition.
3.38 Occupancy Before Completion. Except
with the written consent of the Association based on adequate assurance of
prompt completion of a Dwelling Unit, an owner shall not occupy a Dwelling
Unit until the Dwelling Unit and seasonal landscaping conforming fully to
the provisions of this instrument shall have been erected and fully
completed thereon. Once the footings of any Dwelling Unit or other structure
are poured, construction must progress continuously (with allowance for
weather conditions, labor conditions and availability of materials) until
the building is fully completed. The exterior (including landscaping) must
be completed within twelve (12) months after commencement of construction.
The owner of any lot violating any of these provisions shall be liable to
the Association for liquidated damages at the rate of $50.00 per day the
violations occur, and to payment of such court costs and attorneys fees as
may be incurred in the enforcement of these provisions. In the event
construction does not progress continuously, the liquidated damages shall
commence ten (10) days after notice from the developer or the Architectural
Review Committee if construction is not resumed within said ten (10) days.
3.39 Developer Reserves Right.
Notwithstanding any other provisions herein to the contrary, the developer
reserves unto himself, his successors and assigns, the following rights,
privileges and powers until 85% of the lots are sold: to subdivide lots, to
combine lots or parts of lots, to rearrange boundaries of lots, to cause any
part of any lot to become a part of the Common Properties, and to cause
portions of Common Property lots to become a part of any of the lots
bordering them, provided that not more than 5,000 square feet of any one
given Common Property lot may be added to any one given lot bordering it,
and provided that not more than 5,000 total square feet of any one given
Common Property lot may be added to the lots bordering it.
In addition, the developer reserves the right to
develop all areas on plat indicated as future roadway.
3.41 Lawn Care. All unimproved lots
(except those owned by the development) and all improved lots must be kept
fully seeded with grass (except where other provisions hereof require sod
ding and regularly cut.
3.42 Roofs. Roof pitches must be a
minimum of 7/12, unless otherwise approved by the developer or the
Architectural Review Committee. Roof material must be high quality metal or
high grade three dimensional asphalt shingle. Any other roof material must
be approved by the developer or Architectural Review Committee
3.43 Fireplaces. All fireplace inserts
must be capped with a shroud at the point where the flue reaches the top of
the chimney.
3.44 Chimneys. Chimneys foundation must
be covered with stone.
3.45 Adjoining lot damage. Any damage
done to any adjacent or adjoining lot or by a contractor employed to build
improvements on any lot will be repaired immediately at the expense of the
owner or contractor. Temporary construction support must be provided for the
curbs and sidewalks by the owner or contractor during the time of
construction. All construction debris shall be removed weekly and the street
must be kept clean during construction.
3.46 Material quality. All building plans
for any building, fence, wall or other structure to be erected on any lot
shall specifically specify the type of material or exterior finish which
shall be visible on the exterior or face of the building, fence, wall or
other structure, which material or exterior finish shall be consistent with
a rustic and/or natural setting type such as, but not limited to, cedar
siding, natural stone, lap, board and batten, log and/or log siding, or
other such material as would be consistent with development in a rustic
and/or natural setting. Log construction and log siding will be allowed only
when incorporated with the materials stated above to keep a consistent
rustic setting in the development. Exterior paint or stain can be a variety
of earth tone colors that will be approved by the developer or Architectural
Review Committee. All material must be approved by the developer or
Architectural Review Committee. Any other materials must be approved in
writing by the developer or the Architectural Review Committee. All exposed
concrete block or poured concrete foundations and retaining walls must be
covered with stone to complement the house. All sheet metal work (roof caps,
flashing, vents, chimney caps) must be painted to match the roof. Gutters
and down spouts must be painted in approved colors. All roof stacks and
plumbing vents must e placed on rear slopes of roofs; provided, however that
for good cause shown, the developer or the Architectural Review Committee
may make exceptions as to the placement of such roof stacks and plumbing
vents. When a Dwelling Unit will have a rear exterior that faces Common
Property, another lot, or street, then the finish of the rear exterior must
be the same as the front and side exteriors thereof, and rear exterior must
be designed to look like the front of the Dwelling Unit.
3.47 Air Conditioning and Heating Units.
Air conditioning and heating units shall be architecturally screened or
landscaped so as not to be visible from any street.
3.48 Decks. All exterior wood decks
railing which faces Common Property, another lot or street must be painted
or stained in accordance with the requirements of the developer or the
Architectural Review Committee.
3.49 Renting or Leasing. There shall be
no daily or weekly rentals of a dwelling unit. Rental is allowed as long as
it is three months or longer.
3.50 Construction. During construction,
each builder shall provide a dumpster and portable toilet for each lot.
Maximum hours for construction are from 7am until 7pm, Monday through
Friday. Saturdays from 8am until 5pm. No construction on Sunday or national
holidays. Construction must be completed within one year from receiving
building permit. Lot owner is responsible for any road damage caused by
construction equipment.
3.51 Violations and Enforcement. In the
event of the violation, or attempted violation, of any one or more of the
provisions of these Restrictive Covenants, the developer, his heirs or
assigns, or the Association, its successors or assigns, including all
parties hereinafter becoming owners of any one or more of the lots to which
provisions of these Restrictive Covenants apply, may bring an action or
actions against the owner in violation, or attempting violation, and the
said owner shall be further liable for such damages as may accrue, including
any court costs and reasonable attorneys fees incident to any such
proceeding, which costs and fees shall constitute liquidated damages. In the
event of a violation of setback lines, side, rear or front, which may be
minor in character, a waiver thereof may be made by the developer, his heirs
or assigns, or the Board. Further, the developer or the Board may grant
variances of the restrictions set forth in these Restrictive Covenants if
such variances do not, in the sole discretion of the developer or the Board,
adversely affect the purposes sought to be obtained hereby.
By reason of the rights of enforcement of the
provisions of this section being given unto owners of lots (subject to
rights of variances reserved by the developer and the board), it shall not
be incumbent upon the developer or the Board to enforce the provisions of
these Restrictive Covenants or to prosecute any violation thereof. Developer
shall not be responsible or liable for any violation of these Restrictive
Covenants by any person other than itself.
ARTICLE IV
ARCHITECTURAL CONTROL
4.01 Architectural and Design Review.
A. In order to preserve, to the extent possible,
the natural beauty of the property and its setting, to maintain a pleasant
and desirable environment, to establish and preserve a harmonious design for
the development, and to promote and protect the value of the property, the
developer or the Board shall create a body of rules and regulations covering
details of Dwelling Units, which shall be available for all owners or
prospective owners of lots.
B. The developer shall have sole architectural
and design reviewing authority for the development until the developer has
transferred governing authority to the Board in accordance with the Bylaws;
provided, however, that prior to calling the meeting of the Association to
elect a Board to succeed the developer as provided in the Bylaws, the
developer may execute and record in the office of the recorder a document
stating that the developer reserves unto himself, its heirs and assigns, the
architectural and design reviewing authority provided in this Article, and
stating that said reservation, notice of which is thus provided, shall
survive the election of the Board to succeed the developer. Thereafter, the
developer shall continue to exercise the rights thus reserved to it until
such time as it shall execute and record in the office of the recorder a
document assigning these rights to the Board. Upon such occurrence, the
Board shall establish an Architectural Review Committee as soon as is
practicable. When such committee has been established, the developer shall
transfer reviewing authority to it.
C. No Dwelling Unit, other building, structure,
fences, exterior lighting, walls, swimming pools, children play areas,
decorative appurtenances, or structures of any type, shall be erected,
placed, added to, remodeled or altered and no trees or shrubs shall be cut
or removed and no grading shall be commenced until the proposed building
plans and specifications (including height, and composition of roof, siding,
or other exterior materials and finish), plot plan (showing the proposed
location of such Dwelling Unit, building or structure, drives and parking
areas), landscape plan or construction schedule, as the case may be, shall
have been submitted to the developer or the Architectural Review Committee
for approval at least thirty (30) days prior to the proposed date of
construction. The developer or the Architectural Review Committee shall give
written approval or disapproval of the plans within 30 days of submission.
However, if written approval or disapproval is not given within 30 days of
submission, the plans shall be deemed to have been approved. Developer or
the Architectural Review Committee may, by written notice given from time to
time to the owners of lots, exempt certain matters of a non-essential nature
from the review requirements subject to the terms and conditions and for the
time periods established by developer or the Architectural Review Committee.
In the event of the completion of any Dwelling Unit on any lot, without any
proceedings having been instituted in the courts of Polk County, Tennessee,
to enjoin the construction thereof, the said Dwelling Unit shall be
conclusively presumed to have had such approval.
D. The architectural and design review shall be
directed toward preventing excessive or unsightly grading, indiscriminate
clearing of property, removal of trees and vegetation which could cause
disruption of natural water courses, insuring that the location and
configuration of structures are visually harmonious with the terrain and
vegetation of the surrounding property and improvements thereon, and
insuring that plans for landscaping provide visually pleasing settings for
structures on the same lot and on adjoining or nearby lots.
E. Specifically prohibited are mobile homes,
double-wide mobile homes, modular homes, manufactured homes or partially pre
assembled homes.
4.02 Approval Standards. Approval of any
proposed building plan, location, specifications or construction schedule
submitted under this Article will be withheld unless such plans, location
and specifications comply with the applicable Restrictive Covenants and
Conditions of this Declaration and unless such construction schedule
complies with the provisions of this Article. Approval of the plans and
specifications by the developer or the Architectural Review Committee is for
the mutual benefit of all owners and is not intended to be, and shall not be
construed as, an approval or certification that the plans and specifications
are technically sound or correct from an engineering or architectural
viewpoint. Each owner shall be individually responsible for the technical
aspect of the plans and specifications.
4.03 Licensing. All contractors,
landscape architects and others performing work on any lot must be licensed
as may be required by the State of Tennessee or any other governmental
authority having jurisdiction in order to construct a residence on a lot or
perform services for an owner.
ARTICLE V
ASSESSMENTS
5.01 Creation of a Lien and Personal
Obligation of Assessments. Each owner by acceptance of a deed conveying
a lot, whether or not it shall be so expressed in any such deed or other
conveyance, shall be deemed to covenant and agree to all of the terms and
provisions of these covenants and pay to the Association annual assessments
and special assessments for the purposes set forth in this Article, such
assessments to be fixed, established and collected from time to time as
hereinafter provided. The owner of each lot shall be personally liable, such
liability to be joint and several if there are two or more owners, to the
Association for the payment of all assessments, whether annual or special,
which may be levied while such party or parties are owners of a lot. The
annual and special assessments, together with such interest thereon and
costs of collection therefore as hereinafter provided, shall be a charge and
continuing lien on the lot and all of the improvements thereon against which
each such assessment is made. Unpaid assessments shall bear interest from
date to date of payment at the rate set by the Board, and said rate can be
changed from time to time so that the rate is reasonably related to the
economic situation. In the event that two or more lots are combined into a
single lot by an owner, the assessments will continue to be based upon the
number of the original lots purchased. In the event three or more lots are
combined into two or more lots by an owner, the assessments will continue to
be based upon the number of original lots, and if any original lot is
subdivided, the assessment on such original lot shall be prorated between
the owner based upon the square footage owned by each owner.
5.02 Purpose of Annual Assessments. The
annual assessments levied by the Association shall be used exclusively to
promote the recreation, health, safety and welfare of the owners and for the
improvements and maintenance of the Common Properties.
5.03 Amount of Annual Assessment. Until
the transfer of governing authority from the developer to the Board takes
place as described in the Bylaws, the amount of the annual assessments shall
be set by the developer at such amount as the developer, in its sole
discretion, deems appropriate to promote the recreation, health, safety, and
welfare of its members. The current assessment set by the Developer shall be
an annual amount of $300. Thereafter, the amount of the annual assessments
shall be set by the Board unless 75% of the members who are in attendance or
represented by proxy at the annual or any special meeting of the Association
vote to increase or decrease the said annual assessment set by the Board. At
any such meeting, the developer shall have the number of votes as provided
by the Bylaws.
5.04 Special Assessments for Improvements and
Additions. In addition to the annual assessments, the Association may
levy special assessments for the purpose of defraying, in whole or in part,
the cost of any construction or reconstruction, unexpected repair or
replacement of a described capital improvement upon the Common Properties,
including the necessary fixtures and personal property related thereto, or
the cost of any addition to the Common Properties, provided that any such
assessment shall have the assent of 75% of the vote of the members who are
in attendance or represented at a duly called meeting of the Association,
written notice of which shall be sent to all members at least 30 days in
advance setting forth the purpose of the meeting. At any such meeting, the
developer shall have the number of votes as provided in the Bylaws.
5.05 Property Subject to Assessments.
Only land within the property which has been subdivided into lots, and the
plats thereof filed for public record, shall constitute a lot for purposes
of these assessments.
5.06 Exempt Property. No owner may exempt
himself from liability for any assessment levied against his lot by waiver
of the use or enjoyment of any of the common properties or by abandonment of
his lot in any other way.
The following property, individuals,
partnerships or corporations, subject to this Declaration, shall be exempted
from the assessment, charge, and lien created herein:
(a) The grantee of a utility easement.
(b) All properties dedicated and accepted by a
local public authority and devoted to public use.
(c). All Common Properties as defined in Article
I hereof.
(d) All properties exempt from taxation by the
laws of the State of Tennessee upon the terms and to the extent of such
legal exemptions. This exemption shall not include special exemptions, now
in force or enacted hereinafter, based upon age, sex, income levels or
similar classification of the owners.
5.07 Date of Commencement of Annual
Assessments.
A. The annual assessments provided for herein
shall commence on the date (which shall be the first day of a month) fixed
by the developer to be the date of commencement. The developer shall have
the financial responsibility to physically maintain the Common Properties
until the date of commencement of such assessments.
B. The amount of the first annual assessment
shall be based pro rata upon the balance of the calendar year and shall
become due and payable on the date of commencement. The assessments for any
year after the first year shall become due and payable the first day of
January of said year; however, the Board may authorize payment in four (4)
equal quarterly payments.
C. The due date of any special assessment shall
be fixed in the resolution authorizing such assessment.
5.08 Lien. Recognizing that the necessity
for providing proper operation and management of the Properties entails the
continuing payment of costs and expenses therefore, the Association is
hereby granted a lien upon each Lot and the improvements thereon as security
for payment of all assessments against said Lot, now or hereafter assessed,
which lien shall also secure all costs and expenses, and reasonable attorney
fees, which may be incurred by the Association in enforcing in lien upon
said lot. The lien shall become effective on a lot immediately upon the
closing of that Lot. The lien granted to the Association may be foreclosed
as other liens are foreclosed in the State of Tennessee. Failure by the
owner or owners to pay any assessment, annual or special, on or before the
due dates set by the Association for such payment shall constitute a
default, and this lien may be foreclosed by the Association.
5.09 Lease, Sale or Mortgage of Lot.
Whenever any lot may be leased, sold or mortgaged by the owner thereof,
which lease, sale or mortgage shall be concluded only upon compliance with
other provisions of this Declaration, the Association, upon written request
of the owner of such lot, shall furnish to the proposed lessee, purchase of
mortgagee, a statement verifying the status of payment of any assessment
which shall be due and payable to the Association by the owner of such lot;
and such statement shall also include, if requested, whether there exists
any matter in dispute between the owners of such lot and the Association
under this Declaration. Such statement shall be executed by any officer of
the Association, and any lessee, purchase or mortgagee may rely upon such
statement in concluding the proposed lease, purchase or mortgage
transaction, and the Association shall be bound by such statement.
In the event that a lot is to be leased, sold or
mortgaged at the time when payment of any assessment against said lot shall
be in default, then the rent, proceeds of such purchase or mortgage shall be
applied by the lessee, purchaser or mortgagee first to payment of any then
delinquent assessment or installments thereof due to the Association before
payment of any rent, proceeds of purchase or mortgage to the owner of any
lot who is responsible for payment of such delinquent assessment.
In any voluntary conveyance of a lot, the
grantee(s) shall be jointly and severally liable with the grantor(s) for all
unpaid assessments against the grantor(s) and the lot made prior to the time
of such voluntary conveyance, without prejudice to the rights of the
grantee(s) to recover from the grantor(s) the amounts paid by the grantee(s)
therefore.
ARTICLE IV
REGISTER OF OWNERS AND SUBORDINATION
OF LIENS TO MORTGAGES
6.01 Register of Owners and Mortgages.
The Association shall at all times maintain a register setting forth the
names of the owners, and, in the event of a sale or transfer of any lot to a
third party, the purchaser or transferee shall notify the Association in
writing of his interest in such lot, together with such recording
information that shall be pertinent to identify the instrument by which such
purchaser or transferee has acquired his interest in any lot. Further, the
owner shall at all times notify the Association of any mortgage and the name
of the mortgagee on any lot, and the recording information which shall be
pertinent to identify the mortgage and the mortgagee. The mortgagee may, if
it so desires, notify the Association of the existence of any mortgage held
by it, and upon receipt of such notice, the Association shall register in
its records all pertinent information pertaining to the same. The
Association may rely on such register for the purpose of determining the
owners of lots and holders of mortgages.
6.02 Subordination of Lien to First
Mortgages. The liens provided for in this Declaration shall be
subordinate to the lien of a first mortgage on any lot if, and only if, all
assessments, whether annual or special, with respect to such lot having a
due date on or prior to the date such mortgage is recorded have been paid.
In the event any such first mortgage (i.e., one who records a mortgage on a
lot for which all assessments have been paid prior to recording) shall
acquire title to any lot by virtue of any foreclosure, deed in lieu of
foreclosure, or judicial sale, such mortgagee acquiring title shall only be
liable and obligated for assessments, whether annual or special, as shall
accrue and become due and payable for said lot subsequent to date of
acquisition of such title. In the event of the acquisition of title to a lot
by foreclosure, deed in lieu of foreclosure, or judicial sale, any
assessments, whether annual or special, as to which the party so acquiring
title shall not be liable shall be absorbed and paid by all owners as part
of the Common Expense; provided, however, nothing contained herein shall be
construed as releasing the party or parties liable for such delinquent
assessments from the payment thereof or the enforcement of collection of
such payment by means other than foreclosure.
6.03 Examination of Books. Each owner and
each mortgagee of a lot shall be permitted to examine the books and records
of the Board and Association during regular business hours.
ARTICLE VII
OWNER COMPLAINTS
7.01 Scope. The procedures set forth in
this Article for owner complaints shall apply to all complaints regarding
the use or enjoyment of the property or any portion thereof or regarding any
matter within the control or jurisdiction of the Association, including,
without limitation, decisions of the Association or of the Board of
Directors of the Association.
7.02 Grievance Committee. There shall be
established by the Board a Grievance Committee to receive and consider all
owner complaints. The Grievance Committee shall be composed of the President
of the Association and two other owners appointed by and serving at the
pleasure of the Board of Directors, or the Manager may be appointed by the
Board to function as the Grievance Committee.
7.03 Form of Complaint. All complaints
shall be in writing and shall set forth the substance of the complaint and
the facts upon which it is based. Complaints are to be addressed to the
President of the Association and sent in the manner provided in Section
10.03 for sending notices.
7.04 Consideration by the Grievance
Committee. Within twenty (20) days of receipt of a complaint, the
Grievance Committee shall consider the merits of the same and notify the
complainant in writing of its decision and the reasons therefore. Within ten
(10) days after notice of the decision, the complainant may proceed under
Section 7.05; but if complainant does not, the decision shall be final and
binding upon the complainant.
7.05 Hearing Before the Grievance Committee.
Within ten (10) days after notice of the decision of the Grievance
Committee, the complainant may, in a writing addressed to the President of
the Association, request a hearing before the Grievance Committee. Such
hearing shall be held within twenty (20) days of receipt of complainant
request. The complainant, at his expense, and the Grievance Committee, at
the expense of the Association, shall be entitled to legal representation at
such hearing. The hearing shall be conducted before at least two members of
the Grievance Committee and may be adjourned from time to time as the
Grievance Committee in its discretion deems necessary or advisable. The
Grievance Committee shall render its decision and notify the complainant in
writing of its decision and the reasons therefore within ten (10) days of
the final adjournment of the hearing. If the decision is not submitted to
arbitration within ten (10) days after notice of the decision, as provided
for in Section 7.07, the decision shall be final and binding upon the
complainant.
7.06 Questions of Law. Legal counsel for
the Association shall decide all issues of law arising out of the complaint,
and such decisions shall be binding on the complainant.
7.07 Questions of Fact; Arbitration. If
there shall be any dispute as to any material fact, either the Grievance
Committee or the complainant may, at their option, within ten (10) days
after notice of the decision as provided for in Section 7.05, submit the
same to arbitration in accordance with the provisions for arbitration
adopted by the American Arbitration Association by filing with the other
party a notice of its intention to do so. The decision of the arbitrator
shall be final and binding upon the complainant and the Grievance Committee.
In the event of arbitration, each party shall bear one-half of the expense
thereof.
7.08 Exclusive Remedy. The remedy for
owner complaints provided herein shall be exclusive of any other remedy, and
no owner shall bring suit against the Grievance Committee, the Association,
the Board of Directors or any member of same in his capacity as such member
without first complying with the procedures for complaints herein
established.
7.09 Expenses. All expenses incurred by
complainant, including, without limitation, attorneys fees and arbitration
expenses and the like, shall be the sole responsibility of complainant. All
expenses of the Grievance Committee incident to such complaint shall be
deemed a Common Expense of the Association.
ARTICLE VIII
REMEDIES ON DEFAULT
8.01 Scope. Each owner shall comply with
the provisions of this declaration, the Bylaws and the Rules and Regulations
of the Association as they presently exist or as they may be amended from
time to time, and each owner shall be responsible for the actions of his or
her family members, servants, guests, occupants, invitees or agents.
8.02 Grounds for and Form of Relief.
Failure to comply with any of the covenants of this declaration, the Bylaws,
or the Rules and Regulations promulgated by the Board which may be adopted
pursuant thereto shall constitute a default and shall entitle the developer
or the association to seek relief which may include, without limitation, an
action to recover any unpaid assessment, annual or special, together with
interest as provided for herein, any sums due for damages, injunctive
relief, foreclosure of lien or any combination thereof, and which relief may
be sought by the developer or the association or, if appropriate and not in
conflict with the provisions of this declaration or the Bylaws, by an
aggrieved owner.
8.03 Recovery of Expenses. In any
proceeding arising because of an alleged default by an owner, the developer
or the association, if successful, shall, in addition to the relief provided
for in Section 8.02, be entitled to recover the costs of the proceeding and
such reasonable attorneys fees as may be allowed by the court, but in no
event shall the owner be entitled to such attorneys fees.
8.04 Waiver. The failure of the
developer, the association or an owner to enforce any right, provision,
covenant or condition which may be granted herein or the receipt or
acceptance by the association of any part payment of an assessment shall not
constitute a waiver of any breach of a covenant, nor shall same constitute a
waiver to enforce such covenant in the future.
8.05 Election of Remedies. All rights,
remedies and privileges granted to the developer, the association or an
owner or owners pursuant to any term, provision, covenant or condition of
this declaration or the Bylaws shall be deemed to be cumulative and in
addition to any and every other remedy given herein or otherwise existing,
and the exercise of any one or more shall not be deemed to constitute an
election of remedies, nor shall it preclude the party thus exercising the
same from exercising such other and additional rights, remedies or
privileges as may be available to any such party at law or in equity.
ARTICLE IX
EMINENT DOMAIN
9.01 Board Authority. If all or any part
of the Common Properties (excluding personalty) is taken or threatened to be
taken by eminent domain, the board or the developer is authorized and
directed to proceed as follows:
A. To obtain and pay for such assistance from
such attorneys, appraisers, architects, engineers, expert witnesses and
other persons, as the Board in its discretion deems necessary or advisable,
to aid and advise it in all matters relating to such taking and its effect,
including, but not limited to (I) determining whether or not to resist such
proceedings or convey in lieu thereof, (ii) defending or instituting any
necessary proceedings and appeals, (iii) making any settlement with respect
to such taking or attempted taking and (iv) deciding if, how and when to
restore the Common Properties.
B. To negotiate with respect to any such taking,
to grant permits, licenses and releases and to convey all or any portion of
the Common Properties and to defend or institute, and appeal from, all
proceedings as it may deem necessary or advisable in connection with the
same.
C. To have and exercise all such powers with
respect to such taking or proposed taking and such restoration as those
vested in Boards of Directors of corporations with respect to corporate
property, including but not limited to, purchasing, improving, demolishing
and selling real estate.
9.02 Notice to Owners and Mortgagees.
Each owner and each first mortgagee on the records of the association shall
be given reasonable written advance notice of all final offers before
acceptance, proposed conveyances, settlements and releases, contemplated by
the developer or the board, legal proceedings and final plans for
restoration, and shall be given reasonable opportunity to be heard with
respect to each of the same and to participate in and be represented by
counsel in any litigation and all hearings, at such owner or mortgagee own
expense.
9.03 Reimbursement of Expenses. The
developer and/or board shall be reimbursed for all attorneys, engineers,
architects and appraisers fees, and other costs and expenses paid or
incurred by it in preparation for, and in connection with, or as a result
of, any such taking out of the compensation, if any. To the extent that the
expenses exceed the compensation received, such expenses shall be deemed a
common expense.
ARTICLE X
GENERAL PROVISIONS
10.01 Duration. The covenants of this
declaration shall run with and bind the land and shall inure to the benefit
of and be enforceable by the board, the association, the developer or owner,
their respective legal representatives, heirs, successors, and assigns, in
perpetuity, unless amended or terminated as provided herein.
10.02 Amendments. This declaration may be
amended, modified or revoked in any respect from time to time by the
developer prior to the date that the governing authority for the development
is transferred from the developer to the board in accordance with the
Bylaws. Thereafter, this declaration may be amended in accordance with the
following procedure:
A. An amendment to this declaration may be
considered at any annual or special meeting of the association; provided,
however, that, if considered at an annual meeting, notice of consideration
of the amendment and a general description of the terms of such amendment
shall be included in the notice of the annual meeting provided for in the
Bylaws, and, if considered at a special meeting, similar notice shall be
included in the notice the special meeting provided for in the Bylaws.
Notice of any meeting to consider an amendment that would adversely affect
mortgagees rights shall also be sent to each mortgagee listed upon the
register of the association.
B. At any such meeting of the members of the
association, the amendment must be approved by an affirmative 75% vote of
those owners who are in attendance or represented at the meeting. At any
such meeting, the developer shall have the number of votes as provided in
the Bylaws. Any amendment which adversely affects the rights of the
mortgagees must be approved by an affirmative 75% vote of the mortgagees of
which the association has been properly notified (based upon one vote for
each lot on which a first mortgage is held) and who vote within the period
of time set by the board to vote, which shall be at least ten (10) days and
no longer than sixty (60) days.
C. An amendment adopted under Paragraph B of
this section shall become effective upon its recording with the recorder,
and the President of the association and Secretary of the association shall
execute, acknowledge and record the amendment and the Secretary shall
certify on its face that it has been adopted in accordance with the
provisions of this section; provided, that in the event of the disability or
other incapacity of either, the Vice President of the association shall be
empowered to execute, acknowledge and record the amendment. The certificate
shall be conclusive evidence to any person who relies thereon in good faith,
including, without limitation, any mortgagee, prospective purchaser, tenant,
lien or title insurance company that the amendment was adopted in accordance
with the provisions of this Section.
D. The certificate referred to in Paragraph C of
this Section shall be in substantially the following form:
C E R T I F I C A T E
I, ______________________, do hereby certify
that I am the Secretary of OCOEE RIDGE Homeowners Association,
Inc. and that the within amendment to the Declaration of Covenants and
Restrictions of OCOEE RIDGE SUBDIVISION, PHASE I was duly adopted by the
owners of said Association and the mortgagees, if applicable, in accordance
with the
provisions of Section 10.02 of said Declaration.
WITNESS my hand this _____ day of ____________,
2008.
__________________________________
Secretary, OCOEE RIDGE
Homeowners Association, Inc
10.03 Notices. Any notice required to be
sent to any owner or mortgagee under the provisions of this Declaration
shall be deemed to have been properly sent, and notice thereby given, when
mailed, postpaid, to the last known address of the owner or mortgagee on the
records of the Association at the time of such mailing. Notice to one of two
or more co-owners of a lot shall constitute notice to all co-owners. It
shall be the obligation of every owner to immediately notify the Secretary
in writing of any change of address. Any notice required to be sent to the
Board, the Association or any officer thereof, or the developer under the
provisions of this Declaration shall likewise be deemed to have been
properly sent, and notice thereby given, when mailed, postpaid, to such
entity or person at the following address:
___________________________
___________________________
___________________________
The address for the Board, the Association, or
any office thereof may be changed by the Secretary or President of the
Association by executing, acknowledging and recording an amendment tot his
Declaration stating the new address or addresses. Likewise, the developer
may change his address by executing, acknowledging, and recording an
amendment to this Declaration stating his new address.
10.04 Severability. Should any covenant
or restriction herein contained, or any Article, Section, Subsection,
sentence, clause, phrase or term of this Declaration be declared void,
invalid, illegal, or unenforceable, for any reason, by the adjudication of
any court or other tribunal having jurisdiction over the parties hereto and
the subject matter hereof, such judgment shall in no way affect the other
provisions hereof which are hereby declared to be severable, and which shall
remain in full force and effect.
10.05 Captions. The captions herein are
inserted only as a matter of convenience and for reference and are in no way
intended to define, limit or described the scope of this Declaration nor any
provision hereof.
10.06 Use of Terms. Any use herein of the
masculine shall include the feminine, and the singular the plural, when such
meaning is appropriate.
10.07 Interpretation. The provisions of
this Declaration shall be liberally construed to effectuate their purpose.
Failure to enforce any provision hereof shall not constitute a waiver of the
right to enforce said provision or any other provision hereof.
10.08 Law Governing. This Declaration is
made in the State of Tennessee, and any question pertaining to its validity,
enforceability, construction or administration shall be determined in
accordance with the laws of that State.
10.09 Effective Date. This Declaration
shall become effective upon its recording in the office of the Register of
Polk County, Tennessee.
IN WITNESS WHEREOF, the developer has executed
this Declaration on the date first above written.
HORN’S CREEK RESORT, LLC
__________________________________
BY: ROBERT CHRISTOPHER WHITE
Managing Member
STATE OF TENNESSEE )
COUNTY OF BRADLEY )
Before me, the undersigned Notary Public in and
for the State and County aforesaid, personally came ROBERT CHRISTOPHER WHITE
with whom I am personally acquainted, and who, upon oath, acknowledged
himself to be the Managing Member of HORN’S CREEK RESORT, LLC a Tennessee
Limited Liability Company, the within named bargainor, and that he as such
Managing Member being authorized so to do, executed the within instrument
for the purposes therein contained by signing the name of the LLC by himself
as such Managing Member.
Witness my hand and Notarial Seal, this day of
___________, 2008.
NOTARY PUBLIC ____________________
My Commission Expires:_______________
EXHIBIT "A" – LEGAL DESCRIPTION
BEING LOTS ONE (1) through FORTY-NINE (49),
identified as OCOEE RIDGE Subdivision as shown by plat of record in Plat
Book 12, page 74 Register’s Office of Polk County, Tennessee to which
reference is herein made.
Subject to all rights, easements and
reservations set out in Deed Book 218, page 73, ROPCT.